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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, N.R. Borkar, JJ.
Dharmendra Paras Chauhan and Others – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No.734 of 2013 Along With Criminal Appeal No.873 of 2013 Along With Criminal Appeal No.735 of 2013 Along With Criminal Appeal No.737 of 2018
Decided On : 25-02-2022
Indian Penal Code, 1860 - Section 376(2)(g) - Criminal Trial - Gang rape - Appeal against conviction - Ms. ‘X’ Alleging that her parents had scolded her as she used to remain outdoors till late night and therefore she left her house without informing family members. When she reached Nagaon Phata, she met Shivraj Jagtap who was acquainted with family. She requested him to drop her at Kolhapur. Mr. Jagtap had obliged and dropped her - Thereafter, she met one boy viz. Rahul, who proposed marriage with her. She was persuaded to accept the proposal of marriage, which she did. He had taken her to Lodge. Rahul had asked her to be in company of his Friend - Tatya and had left their company. His friend had ravished her against her will. Thereafter, Rahul had also ravished her against her will. He had left the room with a promise that he would return soon. Ms. X waited at the lodge till She then proceeded to Shiroli and from there to Vadgaon. From there they had been to a Gymkhana where she met Bapu Gaikwad who also ravished her against her will. She was forced to stay in Gym.
Finding of the Court :
The evidence adduced by the prosecution does not in any way indicate that offence committed by the accused falls under section 376(2)(g) of IPC - it cannot be said that sentence inflicted upon accused is disproportionate to offence committed. They are sentenced to 7 years rigorous imprisonment, which accused/appellants have undergone. Hence, appeal filed by the State seeking enhancement of deserves to be dismissed - She has rightly submitted that the victim in the present case needs care and protection. She deserves compensation in order to enable her to take proper treatment.
Result : Criminal Appeals partly allowed and Criminal Appeal No. 672 of 2012 is dismissed.
JUDGMENT :
S. S. Shinde, J.
1. Since the aforesaid four separate appeals are arising out of one and the same judgment dated 19/01/2013 passed by the Additional Sessions Judge, Vasai, with the consent of the learned counsel appearing for the parties, the same are being decided by this common judgment.
2. These four appeal are directed against the judgment and order dated 19/01/2013 passed by Additional Sessions Judge, Vasai, thereby convicting the appellants-original accused Nos.1 to 4 for the offence punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 2500/- each and in default to suffer further imprisonment for six months. The Accused Nos. 1 to 4 are further convicted for the offence punishable under Section 394 of IPC and sentenced to suffer R.I. for 5 years with fine of Rs.2500/- each in default to suffer further R.I. for six months. Both the substantive sentences to run concurrently.
3. The prosecution story in nutshell can be summarized as under- That on 24/05/2010, at about 3.00 pm one Ashok Bagul - Police Hawaldar attached to Manikpur Police Station, received an information about lying of a dead body of an unknown person behind Kinara Dhaba in a dry Nala. He along with other police personnel went to the spot and found the dead body of a male person aged about 25 to 30 years. The dead body had slit to his neck and there were black coloured abrasion on the chest and the abdomen. He also observed that the dead body was dragged from Ahmedabad Highway to a dry Nala. The said Ashok Bagul - Police Hawaldar lodged FIR being CR No. I-172/2010 on behalf of the State against the unknown persons. On the basis of said FIR, an offence came to be registered against unknown persons for the offence punishable under Section 302 of the IPC.
4. After about one month of registration of the above FIR, one person by name Kishor Kathepuri (PW-5) informed Manickpur Police Station that 4 assailants i.e. the accused had killed his friend Sanjay in front of him. The Investigation Officer API Kerubhau Kolhe (PW-8), who conducted the investigation, recorded his statement and started further investigation.
5. During the course of investigation, the IO (PW-8) conducted spot panchanama, and seized simple earth and blood stained earth from the spot. The accused were arrested and in pursuant thereto, memorandum statements of the accused were recorded, incriminating articles such as motorcycle of the deceased, wire, knife and gold ingots were seized under seizure panchanama. API Kolhe (PW-8) also recorded the statements of witnesses and seized muddemal were sent to Chemical Analysis.
6. After completing the investigation, IO filed charge-sheet against the accused in the Court of Judicial Magistrate First Class, Vasai, who in turn, committed the case to the Court of Sessions as the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions.
7. The trial Court framed charge against the accused for the offence punishable under Sections 302 and 394 of the IPC. The accused pleaded not guilty and claimed to be tried. After a full fledged trial, the trial Court convicted the appellants - original accused Nos.1 to 4.
8. In order to bring home the guilt of the accused and to prove that the death of deceased was homicidal, the prosecution has examined 10 witnesses viz. PW-1 Ashok Bagul - Police Hawaldar - the first informant; PW-2 Abhayaraj Ramcharan - Panch witness on seizure of the clothes of the deceased; PW-3 Dr.Anilkumar Yadav - who conducted post mortem; PW-4 - Rambali Rajbhar - Panch witness for arrest of accused and on seizure panchanama of motor-cycle; PW-5 Kishor Kathepuri - Eye witness; PW-6 Shrinivas Mhatre - Panch witness on seizure of gold ingots and on memorandum statement of Accused No.2; PW-7 Rajesh Singh - Panch witness on arrest panchanama and memorandum statement of Accused No.1 and ; PW- 8 Kerubhau Kolhe - IO who conducted i
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