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2013 Supreme(Bom) 289
In the High Court of Bombay at Aurangabad
A.H. JOSHI & U.D. SALVI, JJ.
Raghunath Ramnath Zolekar & Others
Versus
The State of Maharashtra
Criminal Appeal Nos.388 of 2010, 426 of 2010, 413 of 2010, 623 of 2011, 431 of 2010, 395 of 2010, 412 of 2010, 416 of 2010, 415 of 2010, 397 of 2010, 394 of 2010, 429 of 2010, 430 of 2010, 432 of 2010
Decided On : 04-02-2013
For the Appellant:S.T. Shelke, Satej S. Jadhav, V.N. Damle holding for K.N. Lokhande, Vijay Nahar, A.C. Darandale, Shirish Gupte, Senior Advocate with N.V. Gaware, V.D. Hon, N.S. Ghanekar, A.P. Mundargi, Senior Advocate with S.P. Brahme, Advocates.
For the Respondent: Vijay Sawant, Special P.P. with Mrs. V.A. Shinde, A.P.P., J.R. Shaikh appointed as amicus curiae.
Headnote:Immoral Traffic (Prevention) Act, 1956 - Sections 3, 5 and 7 - Offences under.
Where accused persons were abettors and conspirators, involved in procuring and prosecutrix, a girl below 16 years of age as a prostitute therefore they are guilty of offences under Sections 3, 5 and 7 of Act, 1956.
Immoral Traffic (Prevention) Act, 1956 - Section 5 - Offence of keeping brothel.
Hotel owner/occupiers acts, letting hotel rooms available to accused persons for use of prostitution falls in category of offence of keeping brothel punishable under Section 5 of Act.
[Indian] Penal Code, 1860 - Sections 366-A and 376 - Kidnapping and rape.
Where testimony of prosecutrix that she joined company of accused on account of threats given to her by accused, remained unsheltered therefore prosecution version that consent of prosecutrix was not free, cannot be said to be sheerly fictitious.
[Indian] Penal Code, 1860 - Sections 366-A and 376 - Sentence under.
Since five accused persons are in stream of bay flouring between adolescence and maturity hence their sentence reduced to 8 years R.I.
[Indian] Penal Code, 1860 - Sections 366-A and 376 - Evidence Act, 1872, Section 114- A - Kidnapping and rape of minor girl.
Where testimony of prosecutrix, who claims to be 14 years of age at relevant time was clearly corroborated with public record therefore prosecution proved that prosecutrix was minor at time of incident.
[Indian] Penal Code, 1860 - Sections 366-A, 376 and 109 - Immoral Traffic (Prevention) Act, 1956, Sections 3, 4, 5 and 7 - Conviction for kidnapping, rape and abetment.
Where accused persons were indulged only in sexual relationship with prosecutrix and nothing more therefore they are liable to be convicted only under Section 376, IPC.
[Indian] Penal Code, 1860 - Sections 366-A, 376, 376(2)(g), 109 and 114 - Evidence Act, 1872, Section 114-A - Kidnapping and rape of minor girl.
Where testimony of prosecutrix, a minor girl, below 16 years of age, that she joined company of accused persons and submitted to prostitution on account of threats given to her by accused persons, w as cogent, credible and reliable therefore such testimony deserves acceptance as statement of whole truth.
INDIAN PENAL CODE, 1860 - Section 376(2)(g) - Conviction for gang rape.
Since acts of accused persons of having sexual relations with prosecutrix, are individual and not spells out a case of gang rape hence their conviction under Section 376(2)(g) of Code cannot be sustained.
Judgment: (A.H. Joshi, J.)
5th November, 2012.
1. We have heard all these appeals at length. Perused the record. All appeals are being decided by this common judgment.
2. First Information Report was registered, taking statement of prosecutrix as the foundation. In all 23 accused were named in commission of the various acts. After investigation, the charge sheet was filed. All accused including one absconding accused Ram Salve were charged for their collective act of conspiracy, abetment etc. in kidnapping the prosecutrix, a minor girl who was below 16 years of age for procuring and using her for prostitution and committing on her gang rape and related offences. All accused were charged for commission of offences under Sections 366A, 376, 376(2)(g) read with Sections 109, 114 and Section 34 of the Indian Penal Code and for offence under Sections 3, 4, 5 and 7 of Immoral Trafic (Prevention) Act, 1956 (PITA for short).
3. Accused No.1 Sheela Bargal died during pendency of trial. Absconding accused Ram Salve and accused No. 20 Vilas Karale, are named as persons who have played primary role in procurement of prosecutrix for commission of different offences by different accused at different places.
4. Case of prosecution, in brief, is as follows:
The prosecutrix lodged complaint that she was studying in Markandeya Vidyalaya, Gandhi Maidan, Ahmednagar. According to the prosecutrix , her date of birth is 29.5.1991. According to her, accused No.1 Sheela Bargal, accused No.20 Vilas Karale and absconding accused Ram Salve induced her by telling her that she would get lot of money if she does the work of sleeping with other persons and doing sexual intercourse with persons and accordingly, compelled her to have sexual intercourse with several persons. In the beginning, she refused; but ultimately she succumbed to inducement and pressure and later on, she was compelled to do such acts repeatedly at different places by threatening her that in the event of her refusal, her photographs will be published in the newspapers and she would be defamed. According to the proescurtrix, she was required to have sexual intercourse with accused No.2 Hardik Jaggad, accused No.4 Akash Rathi, accused No.5 Tukaram Misal, accused No.6 Balkishan Goel, accused No.7 Ramesh @ Ramakant Barkase, accused No.8 Ajay Kate, accused No.9 Harjeetsingh Rajpal, accused No.10 Aba @ Dnyandev Gondkar, accused No.11 Ramrao Dengale, accused No.12 Abdul Haq Fakir Mohammad Kureshi, accused No.13 Chetan Bhalgat, accused No.14 Rajendra Thorat, accused No.15 Ravindra Thorat, accused No.16 Ramakant Dengale, accused No.17 Pappu @ Aatmaram Dengale, accused No.18 Ashok Kasar, accused No.19 Ruchin Mehta, accused No.21 Raghunath Zolekar and accused No.22 Vasant Pawara.
5. The prosecution has enlisted along with charge sheet in all 53 witnesses. Out of those, 37 witnesses were examined before this Court. Names and categories of these 37 witnesses has been referred to in this judgment at suitable place.
6. In response to the statement of charge to the accused, they pleaded not guilty and claimed to be tried.
7. The substance of the version of witness who have deposed before the Court is as narrated in following paragraphs.
Summary or substance of oral evidence of different witnesses:-
(A) Witnesses pertaining to first report by Anil Jadhav and efforts to trace the prosecutrix
(1) P.W.1 – Anil Gawade
Exh.275 at p.6 PB-III
P.W.1 was working as a Coordinator with a non-Government Organisation called Snehalaya Child Line. This organisation was functioning at Ahmednagar. Anil Jadhav, who is father of the complainant (P.W.5), approached P.W.1. This witness has listened to the version of Anil Jadhav, who told him that his daughter – the prosecutrix, aged 14 years was missing since last two days. After two days, a telephone call was received in the office of Snehalaya Child Line that the prosecutrix was seen in a house on the Pipeline Road. The prosecutrix was recovered from that place and
