A.R. Joshi, J.@mdashIt is the appeal preferred by the appellant - original accused No. 3 against the sentence and order passed by the 3rd Ad hoc Additional Sessions Judge, Sangli (hereinafter referred to as ("the trial Court") dated 18.3.2004. By the said impugned judgment and order present appellant, along with co - accused Nos. 1 and 2 was convicted for the offence punishable u/s 376(2)(g)(a) read with Section 34 of the Indian Penal Code (I.P.C. for short) and was sentenced to suffer R.I., for ten years and fine of Rs. 2,000/- in default to suffer further R.I., for one year. He was also convicted along with co-accused Nos. 1 and 2 for the offence punishable u/s 376, read with Section 34 of the Indian Penal Code and sentenced to suffer R.I., for seven years and fine of Rs. 500/- in default R.I., for one year. Similarly, the appellant was convicted along with accused Nos. 1 and 2 for the offence punishable u/s 452 r.w. Section 34 of the I.P.C., and sentenced to suffer R.I., for three years and fine of Rs. 500/- in default R.I., for six months, so also the appellant was convicted along with coaccused for the offence punishable under Sections 324, 323, 506, 504 read with Section 34 of the I.P.C., and sentenced to suffer R.I., respectively for one year, six months, three years and six months. All the substantive sentences were directed to run concurrently. Perused R and P and the substantive evidence of total seven prosecution witnesses led before the Trial Court. Also, heard rival submissions at length on earlier dates and also on today.
2. In order to appreciate the rival arguments and also mainly the arguments advanced on behalf of the appellant accused No. 3, the case of the prosecution, as unfolded before the Trial Court, can be narrated as under.
3. Prosecutrix P.W.1 was married with one Balasaheb Shitole in the year 1990. However, thereafter, there were disputes between them. Her husband started residing with another woman. Prosecutrix and her husband started staying separately since about seven to eight years prior to the incident, which took place on 11.9.2002. Prosecutrix had constructed one hut like room on the plot of the land which she got from the brother of the present appellant-accused No. 3. She resided in that place along with her son P.W.4, then aged about 13 years. The incident of rape happened on the night between 11 and 12 September, 2002 when prosecutrix and her son were sleeping at home. At about 10.00 p.m., or so, there was knocking on the door and accused Nos. 1 and 2 were asking the prosecutrix to open the door. They used filthy language to the prosecutrix. Suspecting steps of the accused persons, she initially did not open the door. However, subsequently one neighbour P.W.3 Smt. Kashibai arrived on the spot. She was knowing the accused persons. She asked the prosecutrix to open the door saying that the outsiders were known persons. On this, the prosecutrix opened the door and then accused Nos. 1 and 2 entered the room. Present appellant accused No. 3 remained outside watching the situation. Accused Nos. 1 and 2 gave threat to P.W.3 Kashibai of dire consequences and asked her to leave to place and to keep quite. On such threats, Kashibai took the young son of the prosecutrix along with her and left the place. Both accused Nos. 1 and 2 after entering the room closed the door from inside and uttered filthy language to the prosecutrix. They forcibly make her naked by removing her clothes. They also, one after the another, removed their clothes and had forcible intercourse and also indulged in unnatural intercourse with the prosecutrix. In order to see that she should not raise any shouts her mouth was gagged by hands of accused Nos. 1 and 2.
4. When the above incident of sexual assault and forcible sexual intercourse on the prosecutrix was going on in her room, P.W.3 neighbour Kashibai had been to her other tenants and apprised them of the incident and thereafter went to the local police station and obtained police help. Police persons arrived on the spot in police vehicle. P.W.6 arrived on the spot. According to said P.W.6 present accused No. 3 ran away from outside the room of prosecutrix after seeing the arrival of police party. Directions were given to the prosecutrix to open the door saying that the police persons had arrived on the spot. The prosecutrix opened the door and came out at the same time accused Nos. 1 and 2 also tried to come out and they were wearing their clothes. They were apprehended and detained by the police party and were taken to the police station. Prosecutrix lodged her complaint immediately at the early hours on 12.9.2002. On her complaint narrating the incident of sexual assault and forcible sexual inter course by accused Nos. 1 and 2 and disclosing the presence of accused appellant No. 3 outside the room during the entire episode of gang rape, F.I.R., came to be lodged at about 00.35 on 12.9.2002.
5. Admittedly, accused Nos. 1 and 2 were apprehended on the spot, their clothes were taken charge under panchnama. Subsequently, scene of offence panchnama was conducted. Thereafter, revealing the role of the appellant, he was put under arrest on 12.9.2002, in that night itself. Admittedly, since then the appellant is in jail till today. Prosecutrix and the arrested accused Nos. 1 and 2 were sent for medical examination and medical certificates were obtained. Biological samples of prosecutrix and accused persons were sent for chemical analysis, so also the clothes were sent for analysis and relevant C.A. Reports were obtained. After completion of investigation charge sheet was filed and matter was committed to the Court of Sessions being Sessions case No. 169 of 2002 and was disposed of by the impugned judgment and order, as mentioned above.
6. Reportedly, original accused No. 1 preferred separate appeal however, the same came to be dismissed for no steps taken. Also, reportedly accused No. 2 has not preferred any appeal. Present appeal is preferred by appellant-accused No. 3. Admittedly, it is the case of the prosecution that appellant accused No. 3 was not the person who actually indulged in the activity of sexual assault and forcible sexual intercourse on the prosecutrix. However, he was one of the associates of main accused Nos. 1 and 2 and was guarding the house and in fact instigated accused Nos. 1 and 2 to commit such sexual assault on the prosecutrix. In the present appeal, it is to be ascertained whether the presence of the appellant outside the house of the prosecutrix during the entire incident was accepted rightly and so also his involvement in the said incident is taken as established.
7. During the arguments, learned Advocate Shri Dilip Bodake appearing for the appellant submitted that there is no any active role taken by the appellant in the actual commission of offence of gang rape and what is alleged against him is only his association with the co-accused and his alleged presence outside the house and as to his escape after seeing the police party. It is also argued that considering the admitted relationship between the prosecutrix and one Afsar Tamboli, brother of the present appellant, false implication of the appellant could not be ruled out. During the arguments, it is submitted that according to the substantive evidence of the prosecutrix P.W.1 herself, she had admitted the illicit relations with said Afsar Tamboli and that her room was constructed on about one guntha plot belonging to Afsar Tamboli and which was given to her by the said Afsar Tamboli on executing a bond of Rs. 100/- stamp paper. During the arguments it is also brought to the notice of this Court by referring to the contents of Exhibit 5 which is an affidavit, allegedly sworn by the prosecutrix and which is dated 3.1.2003. After going through the record and proceedings of the matter, it appears that the said exhibit 5 came to be taken on record by the Trial Court at the time of hearing of the bail application. Reliance was placed on the contents of the said affidavit to substantiate the case of the appellant accused No. 3 that his name was falsely taken due to misunderstanding by the prosecutrix and that only accused Nos. 1 and 2 were the culprits. The learned Counsel appearing for the appellant place his reliance on the following authorities.
(1) 2007 (2) Bom. C.R. (Cri) 145 Baban Govind Tope and Ors. v. State of Maharashtra and Ors.
(2) 1991 (1) Mh.L.J. 692. Anmol Shridhar Gharde and Ors. v. State of Maharashtra.
(3) 2004 ALL MR (Cri) 2955 Navnath Namdeo Maske and Anr. v. State of Maharashtra.
8. Counter to the above arguments, it is brought to the notice by the learned A.P.P., Mrs M.H. Mhatre for the State that had the contents of such affidavit Exhibit 5 were true and correct to the knowledge of the prosecutrix herself then there would not have been a detail cross-examination of prosecutrix and only the question as to she taking the name of accused No. 3 due to misunderstanding would have served the purpose. It is further brought to the notice of the Court on behalf of the State that during the crossexamination of the prosecutrix P.W.1, when she was confronted with the contents of the said affidavit Exh.5, she had specifically stated that she was put under the fear of killing and as such her signature was obtained on the said affidavit. On this aspect, it is significant to note that the prosecutrix is an illiterate woman and studied upto 3rd standard as per her substantive evidence. The contents of the affidavit though are in Marathi, it is a typed document and bearing the signature of the prosecutrix at the end and it speaks to the effect that she was not sure whether Shakil Tamboli (the appellant) had been to her house or not on the night of the incident and that she had taken the intimation of accused No. 3 as Accused Nos. 1 and 2 who were inside the room were taking the name of ''Shakil'', ''Shakil''. It must be said that the contents of the said affidavit have been repudiated by the prosecutrix and she had given a reason under what circumstances it was signed by her. Definitely, much after filing of such affidavit recording of evidence in the matter started and if it was her own say as to inadvertently taking the name of accused No. 3 in the complaint, such type of evidence would have occurred when she was put to cross-examination on behalf of accused No. 3. However, it is not the case and in the result, in the opinion of this Court the contents of such affidavit Exhibit 5 cannot be taken shelter on behalf of the appellant accused No. 3. In other words, it cannot be accepted that the prosecutrix has inadvertently and mistakenly taken the name of Shakil Tamboli, appellant accused No. 3 as the person remaining outside the courts during the incident of rape.
9. Apart from the above, there is substantive evidence of the neighbour of the prosecutrix P.W.3 Smt. Kashibai, P.W.4 a young 13 years old Pratap Shitole, son of the prosecutrix and also the evidence of P.W. 6 Police Naik, Tatyasaheb Patil. In the opinion of this Court, on careful scrutiny of the substantive evidence of above referred prosecution witnesses goes to show that there was definitely an involvement of appellant accused No. 3 and that he was the associate of main accused Nos. 1 and 2.
10. Apart from the above, even the defence witness examined on behalf of the appellant-accused does not inspire confidence, inasmuch as, apart from his words there is nothing to substantiate that the appellant was not on the spot and was at home till 12 mid night. The said defence witness is the brother of appellant. He specifically submitted as to having illicit relations with the prosecutrix and as to giving her the plot of the land, about one guntha, on which the prosecutrix had constructed her house and stayed there along with her son. He also specifically mentioned as to having the frequent visits with her. However, further came with a case that his brother Shakil Tamboli was at home since 9.00 p.m., to 12.00 mid night of the night of 11th September, 2002 and only at about 2:30 in or when the police party came to his house, he and his brother Shakil Tamboli then sleeping at the house were dragged out by the police and were taken to the police station.
11. Considering the substantive evidence of earlier referred prosecution witnesses, defence of the accused even on preponderance of probability cannot be accepted and it was rightly considered by the Trial Court.
12. In the above circumstances, in the opinion of this Court, the involvement of accused No. 3 has been rightly established in the offences charged. However, considering the specific case of the prosecution and the role given to the appellant accused No. 3, as to through out the incident remaining outside the house, in the opinion of this Court, the case against him can be viewed differently than that which is against accused Nos. 1 and 2. In other words, the circumstances prompt this Court to take recourse to the proviso to Section 376(2)(g) of the Indian Penal Code which speaks that for adequate reasons the punishment of imprisonment can be less than the minimum ten years prescribed by law. In the opinion of this Court, here it is a matter in which it would be just and proper to exercise such discretion and to treat the matter under the proviso as mentioned above.
13. In that event, it would be just and proper to lower down the sentence of ten years imposed for the offence punishable u/s 376(2)(g) of the I.P.C., to seven years. Apart from this modification there is nothing to alter the impugned judgment and order.
14. In the result, the conviction of the appellant accused No. 3 is upheld for the offence for which he is convicted by the impugned judgment and order. However, the sentence is accordingly reduced as under.
ORDER
1. Criminal Appeal No. 530 of 2004 is partly allowed. Conviction of the appellant accused No. 3 for the offence charged and for which he is convicted by the impugned judgment and order dated 18.3.2004 shall sustain.
2. The imprisonment of ten years awarded for the offence u/s 376(2)(g) of the Indian Penal Code is reduced to the imprisonment for seven years.
3. Remaining part of the impugned judgment and order shall sustain.
