Absence of S.65B Certificate Not Fatal When Accused Controls Device & Authenticity Proven; 'Sterling' Prosecutrix Testimony Upholds S.376D IPC: Bombay HC - 2025-05-08

Bombay High Court Modifies Convictions in Chandrapur Gang Rape, Attempted Murder Case; Acquits One, Upholds Key Charges Against Others

Nagpur, Maharashtra – The Nagpur Bench of the Bombay High Court, in a significant judgment pronounced on May 6, 2025, has partly allowed appeals filed by five individuals, modifying some convictions and sentences awarded by the Additional Sessions Judge, Chandrapur, in a brutal case involving criminal trespass, assault, abduction, attempt to murder, and gang rape.

The division bench, comprising Justices Nitin B. Suryawanshi and M. W. Chandwani , upheld the core convictions of Wasim Khan Ajim Khan and Sheikh Kadir Sheikh Jakir for gang rape (Section 376D IPC) and attempt to murder (Section 307 IPC), among other offences. However, their life sentences for these crimes were modified. Another accused, Siraj khan Pathan , was acquitted of all charges, while Maksud Sheikh Gaffur Sheikh saw some convictions altered, and Jobi Ashokan Welythan 's sentence was reduced to the period already undergone.

Case Background: A Night of Terror

The prosecution's case, as detailed in the judgment, painted a grim picture of events unfolding on November 5-6, 2014, in Chandrapur. The prosecutrix, who was in a live-in relationship with Dinesh (PW2), became the target of the accused.

The events began with an altercation between Maksud (the landlord's brother) and the prosecutrix over washing a vehicle. Maksud allegedly abused her, and she slapped him. Maksud then reportedly attempted to assault Dinesh with an axe. He subsequently called Wasim and Kadir , who, along with others, barged into the prosecutrix's room.

Inside the room, Dinesh was assaulted with a baton by Kadir , and the prosecutrix was slapped by Wasim . A friend, Rakesh (PW3), who arrived after a call from the prosecutrix, was also beaten. The victims were forced to consume liquor. The prosecutrix and Rakesh were then forced to strip, kiss, and pose in compromising positions, which Wasim recorded on his mobile phone.

Later, Wasim , Kadir , and a juvenile in conflict with law abducted the prosecutrix and Dinesh . Dinesh was taken to a railway track, placed on it twice, and beaten with an iron rod in an attempt to kill him; he managed to escape. The prosecutrix was then taken to various locations where she was allegedly gang-raped by Wasim , Kadir , and the juvenile. She was eventually abandoned near Vidya Vihar Convent.

Trial Court's Verdict

The Additional Sessions Judge, Chandrapur, had convicted the appellants for a slew of offences under the Indian Penal Code (IPC) and the Information Technology (IT) Act. Notably, Wasim Khan and Sheikh Kadir were sentenced to imprisonment for life (remainder of natural life) for gang rape (Section 376D IPC) and imprisonment for life for attempt to murder (Section 307 IPC), along with other sentences for various offences. Maksud , Siraj , and Jobi were also convicted and sentenced for their respective roles.

High Court's Key Findings and Reasoning

The High Court meticulously examined the evidence, including eye-witness testimonies, medical reports, recovery of weapons, forensic analysis, and electronic evidence.

Admissibility of Electronic Evidence (Section 65B, Indian Evidence Act)

A crucial aspect was the admissibility of photos and videos retrieved from Wasim 's mobile phone, showing the prosecutrix and Rakesh in compromising positions. The defence contested this due to the absence of a certificate under Section 65B(4) of the Evidence Act.

The Court, citing Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal , held that the certificate was not mandatory in this specific instance. Justice Chandwani , writing for the bench, reasoned: > "Here accused- Wasim , the accused in the crime, was the person having lawful control and use of the Nokia mobile phone... Obviously, the electronic record which is sought to be proved is against Wasim and therefore, the prosecution could not get the certificate under Section 65B... Firstly, Wasim will never agree to issue a certificate... and Secondly, an accused in a crime cannot be compelled to give incriminating evidence against himself." The Court noted that the "Hash Value" of the original and copied electronic records matched, ensuring authenticity, and thus found the trial court justified in relying on this evidence.

Alteration of Convictions and Acquittals

Maksud Sheikh Gaffur Sheikh :

Acquitted of criminal intimidation (Section 506-II IPC), as his abusive words ("Bhadkhau") were not deemed a threat sufficient for this charge. The Court stated, "Utterance of the word 'Bhadkhau' by Maksud by no stretch of imagination is threatening so as to bring him under the gamut of criminal intimidation..."

Conviction under Section 326 IPC (grievous hurt) was altered to Section 324 IPC (voluntarily causing hurt by dangerous weapons). The Court found that the injuries to Dinesh and Rakesh , though caused by weapons, were simple in nature and did not meet the definition of "grievous hurt" under Section 320 IPC, particularly Clause VIII (endangering life), as the doctor's opinion on potential fatality was conditional on future complications.

Other convictions (Sections 450, 452, 354A, 354B IPC, and Section 66E IT Act) were upheld.

Wasim Khan Ajim Khan and Sheikh Kadir Sheikh Jakir:

Convictions for attempt to murder (Section 307 IPC) and gang rape (Section 376D IPC) were upheld.

Regarding attempt to murder, the Court emphasized that "intention of the accused which can be gathered from surrounding circumstances" is key, not just the severity of injury. The act of placing an inebriated Dinesh on a railway track twice clearly indicated intent to kill.

On the gang rape charge, the Court extensively discussed the evidentiary value of the prosecutrix's testimony. Despite defence arguments about lack of injuries, an old hymen tear, and inconclusive DNA on semen, the Court found her testimony "sterling" and reliable. It noted she was inebriated and overpowered. The Court powerfully reiterated the "No means No" principle: > "A woman who says 'NO' means 'NO'. There exists no further ambiguity and there could be no presumption of consent based on a woman’s so called 'immoral activities'... A woman’s character or morals are not related to the number of sexual partners she has had..."

Their convictions under Section 326 IPC were also altered to Section 324 IPC, and they were acquitted of Section 506-II IPC for similar reasons as Maksud .

Other convictions (Sections 450, 452, 366, 354A, 354B, 354C (for Wasim ), 394, 201 (for Wasim ) IPC, and Section 66E IT Act) were maintained.

Siraj khan Pathan @ Raja:

Acquitted of all charges (Sections 450, 452, 326, 354B IPC, Section 66E IT Act). The Court found no credible evidence that Siraj had entered the prosecutrix's room, giving him the benefit of doubt.

Jobi Ashokan Welythan :

Conviction under Section 212 IPC (harbouring offender) was upheld based on evidence that he assisted Wasim , Kadir , and the juvenile in their attempt to escape.

Sentencing Modifications

The High Court undertook a detailed consideration of punishment, balancing aggravating and mitigating circumstances.

* Wasim Khan and Sheikh Kadir :

* Sentence for attempt to murder (Section 307 IPC) reduced from life imprisonment to 10 years rigorous imprisonment (RI). * Sentence for gang rape (Section 376D IPC) reduced from imprisonment for the remainder of their natural life to 20 years RI. Mitigating factors included Wasim having a daughter, no prior criminal antecedents for both, and their conduct in jail. * Sentence for Section 324 IPC set at 3 years RI.

* Maksud Sheikh Gaffur Sheikh : * Sentence for Section 324 IPC set at 3 years RI.

* Jobi Ashokan Welythan : * Sentence for Section 212 IPC (3 years RI) reduced to the period already undergone.

All substantive sentences were ordered to run concurrently, and the accused are entitled to a set-off for the period already undergone.

Implications of the Judgment

This judgment reaffirms critical legal principles regarding the admissibility of electronic evidence, the distinction between simple and grievous hurt, the requirements for proving attempt to murder, and the paramount importance of a prosecutrix's testimony in sexual assault cases, especially under the "sterling witness" doctrine. The Court's robust stance on "No means No," irrespective of a victim's past or character, is a significant reiteration of consent jurisprudence. The acquittal of one accused and modification of sentences for others underscore the appellate court's role in re-evaluating evidence and ensuring proportionate justice. The observations regarding the juvenile in conflict with law were limited to the present appeals and will not affect his separate trial.