- (1.) THIS common judgment shall dispose of Criminal Appeal No. 339 of 1995 and Criminal Appeal No. 361 of 1995. Criminal Appeal No. 339 of 1995 is brought by appellants No. 1 Ashok Kawaduji Salame and No. 2 Ashok Ramrao Bhujbal, who were accused No. 1 and 2 respectively, and Criminal Appeal No. 361 of 1995 is brought by appellant Anil Pundlikrao Badhe, who was an accused No. 3, in Sessions Trial No. 163 of 1993 on the file of the learned Additional Sessions Judge, Amravati. Each of the above accused was convicted of the offences under section 376 (2) (g), section 506 read with section 34 and section 448 read with section 34 I. P. C. and was sentenced to suffer R. I. for ten years and to pay a fine of Rs. 5,000/- or in default to suffer R. I. for six months more for the offence under section 376 (2) (g) I. P. C. , to suffer R. I. for one year for the offence under section 506 read with section 34 I. P. C. and again to suffer R. I. for one year for the offence under section 448 read with section 34 I. P. C. The substantive sentences of imprisonment were directed to run concurrently. Accused No. 4 Jitu alias Jitendra Marotrao Deshbhrathar in the abovesaid sessions trial is not an appellant since he was acquitted of all the offences. The aforesaid appellants have challenged the above order of conviction and sentence in the appeals.
(2.) THE case of the prosecution is as follows : (a) At the time of incident, prosecutrix Ku. Meena daughter of Prabhakarrao Gawande was residing together with her mother in one Badgewada in Kalyannagar locality, Amravati. However, some three days prior to the incident, her mother had gone out of station. (b) The incident took place on 21-2-1993, around 11. 00 p. m. On that day, the prosecutrix was alone at her house. The milk vendor used to come to Badgewada every day at about 10 to 10. 30 p. m. to supply the milk to the occupants of Wada. On that day, the prosecutrix heard the voice of the milk vendor, who was supplying milk in the Wada. When she heard the voice of milk vendor at her door, she opened the door. She was holding the utensil for taking milk. As soon as she extended her hand outside to take the milk, all the four accused forced their entry in her house. One of them pressed the mouth of the prosecutrix and prevented her from shouting. One accused closed the door and latched it from inside. Another threatened her with knife. The other one caught hold of her hands and legs. She was lifted physically and was put on the cot. The saree on her person was removed forcibly and the petticoat was made upwards. All the four accused persons then committed rape upon the prosecutrix turn by turn. At the time when the forcible sexual intercourse was being performed by the accused persons, the prosecutrix was prevented from raising shouts and her legs and arms were caught hold of by the others besides the accused performing the intercourse and thus she was prevented from offering the resistance. She was also threatened with knife. When she requested not to outrage her modesty, one of the accused rudely threatened her that he would tear her off. When the prosecutrix was being raped by the accused persons, one after another, one or the other out of them was going out either for smoking or for chewing pan. Because of the forcible penetration of penis in the vagina of the prosecutrix, it started bleeding. The forcible sexual intercourse as above continued upto midnight. The accused persons thereafter left the house and went away. Even after the accused persons left the house of the prosecutrix, she did not raise the shouts calling the neighbours because she was feeling giddiness and she was semi-conscious. She could not get up from the cot. For the whole night she remained lying on the cot itself in the same condition. (c) Prosecutrix Meena got up in the next morning at about 7. 30 a. m. she went to the house of her friend named Sushma. On going there, she again became unconscious. She regained consciousness at about 10 a. m. Then she narrated the entire incident to Sushma. The prosecutrix and Sushma decided to go to Police Station for lodging a report. However, Sushma advised that first they should go to one Nanakram Nanwani residing in Kalyannagar, whom Sushma was treating as uncle. The prosecutrix and Sushma thus proceeded towards Kanwarnagar. On the way to Kanwarnagar, all the accused persons were noticed to be sitting on the bridge. As soon as the prosecutrix and Sushma reached the shop of Nanakram, the prosecutrix narrated the whole incident to him and told him that all the four culprits were sitting on the bridge. Nanakram took the prosecutrix towards the abovesaid bridge on his vehicle - Sunny Moped, but by that time, the accused had left the place. So Nanakram and the prosecutrix went towards the square of Kalyannagar in search of the accused persons. All the four accused were seen at that place. On seeing Nanakram and prosecutrix, the accused persons ran away and they could not be found in spite of chase made by Nanakram and the prosecutrix. Then both of them went to Frezarpura Police Station to make a report, but they were informed to lodge the report in Police Station Rajapeth (as the area in which the offence was committed was within the jurisdiction of that Police Station ). Nanakram and prosecutrix then arrived at Police Station Rajapeth. The prosecutrix lodged an oral report in the Police Station, which was reduced into writing by police. At that time, the prosecutrix was not knowing the names of the accused, so she referred to them as four young boys. However, in the report, the prosecutrix gave the details of the incident and also disclosed that at the time of committing rape, some of the culprits were uttering that they were sent by one Naresh. The crime at serial No. 72/93 under section 376 I. P. C. came to be registered. (d) After the report of prosecutrix Meena was recorded and the crime was registered by the police, she was referred to Dufferin Hospital, Amravati, for her medical examination. The Medical Officer Dr. Agrawal examined prosecutrix Meena medically at 4. 15 p. m. and also collected the necessary samples. On examination, Dr. Agrawal noted the injuries on the hymen of the prosecutrix with the presence of blood. In the opinion of Dr. Agrawal, the rape had taken place. Meena was admitted in the hospital for the repairs of tear of vaginal wall. The samples of pubic hair, vaginal smear and blood of the prosecutrix collected as above were handed over to the concerned Police Constable, who produced the same in Police Station Rajapeth. P. S. I. Teli seized the same under the seizure memo. On 23-2-1993 between 10. 30 and 11. 30 a. m. P. S. I. Teli drew the spot panchanama in presence of prosecutrix. P. S. I. Teli then seized from the spot of occurrence the petticoat of the prosecutrix and one Solapuri bed-sheet, which were stained with blood-mixed semen. The prosecutrix was an indoor patient in the hospital upto 26-2-1993. (e) S. D. P. O. Pradip Deshpande had already taken over the investigation of the abovesaid crime on 23-2-1993. On taking over the investigation, he first went to the hospital, interrogated prosecutrix Meena and obtained the detailed information from Meena pertaining to Naresh, whom she had referred in her report. On the same day, S. D. P. O. Deshpande recorded the statements of Nanakram Nanwani, Sushma Ingle (Friend of Prosecutrix) and one Bandu Shekharwate. On that day, Naresh was not available. On 24-2-1993, he was available and his statement was recorded by S. D. P. O. Deshpande. From that statement, S. D. P. O. Deshpande got the clue of accused Nos. 1 to 4 as the culprits. A search was made for the accused persons. Accused No. 1 Ashok Salame, No. 2 Ashok Bhujbal and No. 3 Anil Badhe came to be arrested on 10-3-1993. On 11-3-1993, all the three accused were produced before the Magistrate and their police custody remand was obtained till 17-3-1993. (f) On 12-3-1993, S. D. P. O. Deshpande interrogated accused No. 3 Anil Badhe. He seized the clothes worn by Anil at the time of incident from his person under the panchanama. Accused No. 1 Ashok Salame gave an information that the knife was kept at the house of a woman named Rekha Kamble and he undertook to produce the same. The memorandum of his version came to be recorded and the accused, panchas, S. D. P. O. Deshpande and Police staff went to the house of Rekha Kamble by police jeep. The knife was produced by accused No. 1 Ashok Salame by taking it out from one cloth bag from the house of Rekha Kamble. The same was seized by S. D. P. O. Deshpande under the seizure panchanama. On the same day, S. D. P. O. Deshpande seized the clothes of accused No. 1 and 2 under separate seizure panchanamas. (g) On 15-3-1993, accused No. 1 to 3 were referred to General Hospital, Amravati, for the collection of samples of their semen. On that day, the semen sample of accused No. 3 Anil Badhe was collected and the samples of semen of the other two accused were collected later on. The samples of blood of the accused persons were also collected. All the property including the various samples, was forwarded to the Chemical Analyzer, Nagpur, for examination. (h) On 14-4-1993, the test identification parade was held by Executive Magistrate Shri Gulhane in the premises of Central Jail, Amravati. During the identification parade, the prosecutrix identified accused No. 1 Ashok Kawduji Salame and accused No. 2 Ashok Bhujbal. Again on 6-5-1993, another test identification parade was held in the Central Jail for the identification of accused No. 3 Anil. The prosecutrix identified accused Anil also. Accused No. 4 Jitu alias Jitendra was absconding. (i) The report of Chemical Analyser was received on 14-6-1993. It was favourable to the prosecution since the blood group of the accused persons was tallying with the blood group in semen stains detected on the garment of prosecutrix. (j) On completion of the investigation, the charge-sheet was put up against the accused persons, in absence of accused No. 4 Jitu alias Jitendra.
(3.) J. M. F. C. , Amravati, committed the case to the Court of Session for the trial of the accused persons. During the pendency of sessions trial, accused No. 4 Jitu alias Jitendra was arrested and produced before the Court of Session and he was taken in judicial custody.;