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2007 DIGILAW 1723 (BOM)

Ankush S/o Desu Rathod v. State of Maharashtra

2007-12-13

V.R.KINGAONKAR

body2007
JUDGMENT 1. Both the appeals are being disposed of by this common judgment inasmuch as they arise out of same judgment rendered by learned Adhoc Assistant Sessions Judge, Udgir, bearing Sessions Case No.23/2000 (old) / S.C.No.74/2001 (new). By the impugned judgment, the appellants, named above, alongwith original accused No.l have been convicted for offence punishable U/s 395 of the I.P.C. and sentenced to suffer rigorous imprisonment for 10 (ten) years and to pay fine of Rs.10,000/-, (Rupees Ten thousand) each in default to suffer rigorous imprisonment for two years. They were also convicted for offence punishable U/s 376(2)(g) of the I.P.C. and are sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.10,000/-, each in default to undergo rigorous imprisonment for two years. They were further directed to pay compensation of Rs.10,000/- each to the prosecutrix U/s 357(3) of the Cr.P.C. and, in default thereof, to suffer rigorous imprisonment for a period of one year. The substantive sentences were directed to run concurrently. 2. The background facts, in nutshell, are as follows : . There is a sarafi lane at Udgir, which is a Taluka place. Praloy Ghosh (P.W.13) was working as an artisan in a goldsmith’s shop. Said Praloy hails from West Bengal. His cousin, namely, Milon Ghosh (P.W.12) was also working as an artisan in one goldsmith’s shop with one Bappi Ghosh. Somewhere in July/August 1999, Praloy Ghosh was married to Deepali (P.W.14 - prosecutrix). They were residing in rented premises at Udgir. On December 6,1999 Praloy Ghosh, Milon Ghosh and the prosecutrix alongwith one Suman had gone to village Somnathpur for performing Pooja in a temple of Goddess. They reached the temple in a hired auto-rickshaw. They performed Pooja and started returning by about 4 p.m. on foot. They took a side road through hilly area for return journey. They plucked some berries and ate them while walking on the hilly track. Milon Ghosh was little ahead of the young couple. He was intercepted and caught hold of by one of the culprit. The culprit took a stick from a minor girl, who was grazing a she-buffalo nearby, and started beating Milon Ghosh. He robbed a gold locket and wrist watch of Milon Ghosh. Praloy Ghosh and his wife pleaded with the assailant to let him free. They saw that other 5/6 culprits were coming running towards the place. The culprit took a stick from a minor girl, who was grazing a she-buffalo nearby, and started beating Milon Ghosh. He robbed a gold locket and wrist watch of Milon Ghosh. Praloy Ghosh and his wife pleaded with the assailant to let him free. They saw that other 5/6 culprits were coming running towards the place. Hence, Praloy Ghosh and his wife hurriedly rushed ahead. Those culprits caught hold of them and robbed them of their gold locket, a wrist watch, amount of Rs.1,000/-, a gold ornament (Ganthan) and gold bangles (Patlya). They snatched away her wrist watch, amount of Rs.300/-, Mangalsutra and gold ear pendant (Zumke) too. One of them caught hold of Praloy Ghosh and took him aside whereas three culprits took away his wife behind a tree. Out of them, one of the culprit forcibly laid over her and committed sexual intercourse whereas the other two firmly held her. She and Praloy raised hue and cry. A nearby land owner by surname Patil was seen coming towards the place. The culprits threatened Praloy and the other victims to keep silence over the incident, else they would be killed if the incident is disclosed to anyone. The culprits fled away while said Patil was nearing the place. Thereafter, said Patil assisted them to reach at Udgir by the road. They did not disclose the incident to anyone in the said night due to fear and because they were all flabbergasted due to sudden victimisation during course of the road robbery as well due to rape committed on the prosecutrix. 3. Avinash Raichurkar (P.W.6) runs his sarafi shop at sarafi lane, Udgir, and was President of Sarafa Association at the relevant time. In the morning of December 7th, 1999 he was informed by sons of Patil, who hails from nearby village Somnathpur, about the incident which occurred in the earlier evening. So, he visited house of Praloy in the same morning and enquired whether such information was true as Avinash gave moral support to them and asked Praloy Ghosh to inform the incident to the Police. The latter mustered courage and went to the Police Station. He lodged F.I.R. in writing. The Police registered crime and commenced the investigation. The prosecutrix was sent for clinical examination. A spot panchanama was drawn on 7.12.1999 wherefrom a torn piece of blouse, a chappal and bangle pieces were collected. The latter mustered courage and went to the Police Station. He lodged F.I.R. in writing. The Police registered crime and commenced the investigation. The prosecutrix was sent for clinical examination. A spot panchanama was drawn on 7.12.1999 wherefrom a torn piece of blouse, a chappal and bangle pieces were collected. The prosecutrix produced underwear, her torn blouse of saffron colour and petticoat of red colour. The clothes were attached under a seizure panchanama. The accused were arrested by the Police. An identification parade was conducted by Naib-Tahsildar-cum -Executive Magistrate in which the appellants were identified by Praloy Ghosh, Milon Ghosh, the prosecutrix and other witnesses. The wrist watches and gold ornaments were recovered at the instance of the appellants. On the basis of the material gathered during the investigation, original accused No.l Ankush Pawar and the above appellants were charge-sheeted for offences of gang rape and dacoity. 4. At the trial, charge (Exh.7) was framed against six accused persons, including the present appellants, and was explained to them in vernacular. They pleaded "not guilty". They did not raise any specific defence. According to them, due to political rivalry with one Vaijinath Tondare and Narayan Patil, they were implicated in a false case. It is suggested to the prosecution witnesses that false information was furnished to Avinash Raichurkar and due to political pressure, the appellants and original accused No.1 were prosecuted by slapping a false charge on them. They denied truth into the accusation that recoveries of gold ornaments and the stolen wrist watches owned by the victims were made at their instances. Needless to say, the defence is one of total denial. 5. The prosecution examined in all seventeen (17) witnesses in support of its case. Some of them, viz. P.W. 9 Savita, P.W.10 Meena and P.W.11 Shankarappa Alamkere were declared hostile. Their evidence is of no much avail. So also, P.W. 3 Pandurang vaguely stated that on 6.12.1999, six culprits had been to his Dhaba (motel) for taking some eatables. He did not identify any of them. His version is of no assistance to the prosecution. 6. Relying upon remaining evidence tendered by the prosecution, the learned Sessions Judge came to the conclusion that all the six accused were guilty of offences punishable U/s 395 and Section 376(g) of the I.P.C. He, therefore, convicted and sentenced them as stated at the outset. 7. His version is of no assistance to the prosecution. 6. Relying upon remaining evidence tendered by the prosecution, the learned Sessions Judge came to the conclusion that all the six accused were guilty of offences punishable U/s 395 and Section 376(g) of the I.P.C. He, therefore, convicted and sentenced them as stated at the outset. 7. Mr.Choudhari S.S., learned advocate for the appellants in Criminal Appeal No.376/2005, strenuously argued that the prosecution case could not be accepted by the trial Court. He contended that there was inordinate delay in lodging the F.I.R. (Exh.139) which smacks of certain improvements and embellishments made by the informant - Praloy at behest of P.W. Avinash Raichurkar. He would submit that in absence of any medical evidence, the accusation of gang rape is unsustainable. He would point out that the spot of the incident is situated in an agricultural land where the surface is hard. He contended that the reports of Chemical Analyser are also of no significance when the delayed examination was carried out. He would submit that having regard to serious nature of crime, standard of proof required was much more but the prosecution failed to adduce convincing evidence to meet the requirement. He would submit that identification parade was not carried out in accordance with the requirement of law because same group of dummies was used throughout the process of conducting the parade. It is argued that recording of the evidence by learned Adhoc Sessions Judge is also defective inasmuch as identification of the culprits in the Court was not properly recorded. He argued that when P.W. Milon, P.W. Praloy and the prosecutrix did not specifically point out who was the robber of each of them, who was the rapist and who assisted in commission of the rape, when the identification parade was conducted by P.W. 17 Mr.Rathod then omnibus statement regarding involvement of the appellants would be insufficient. It is contended that the appellants deserve benefit of doubt in view of several inadequacies appearing from the prosecution evidence. It is argued that the recoveries of the wrist watches and gold articles are also of no much evidentiary value because the articles do not bear special identification marks. Consequently, Mr.Choudhari urged to allow the appeal and acquit the appellants from the charges levelled against them. It is argued that the recoveries of the wrist watches and gold articles are also of no much evidentiary value because the articles do not bear special identification marks. Consequently, Mr.Choudhari urged to allow the appeal and acquit the appellants from the charges levelled against them. Following the same track, Mr.S.R.Andhale, learned advocate for the appellant in Criminal Appeal No.375/05, would submit that the case of the prosecution is unacceptable. He would submit that conduct of the prosecutrix and her husband as well as P.W. Milon is strange because they reached home, followed the regular pursuits and did not disclose the incident to anyone. He would submit that it was only after goading by P.W. Avinash Raichurkar and several members of sarafa association that the F.I.R. was lodged at the Police Station. He would point out from version of P.W. 7 - Sham that the Panchanamas were not drawn in the manner as required U/s 27 of the Evidence Act. He contended that identification of the appellant (original accused No.5) is not established. He, therefore, urged to acquit appellant Ankush Rathod (Original accused No.5). Per contra, Learned A.P.P. supports the impugned judgment. 8. At the threshold, let it be noted that P.W. Milon Ghosh and P.W. Praloy Ghosh and his wife had migrated to Udgir town in order to earn their livelihood. One Bappi Ghosh had initially migrated to Udgir from West Bengal to earn his livelihood as gold-smith. On his recommendation the above artisans came to reside at Udgir because the artisans were in demand. All of them went back to West Bengal after the ghastly incident. Nobody will deny that they had faced life time harrowing experience due to horrendous crime of dacoity and rape. They could not have any remote reason to falsely implicate the appellants. They had no enmity with either appellant. They would not have made false allegations of rape committed on the prosecutrix, at the stake of public humiliation and stigma which the prosecutrix would have incurred. She was hardly aged about 20/21 years at the relevant time. The marriage between P.W. Praloy and the prosecutrix had taken place only few months before the incident. Ordinarily, such a newly married woman is unlikely to make false accusation of her ravishment. 9. First of all, it may be mentioned that spot Panchanama (Exh.80) is duly corroborated by P.W.2 Vaijinath. The marriage between P.W. Praloy and the prosecutrix had taken place only few months before the incident. Ordinarily, such a newly married woman is unlikely to make false accusation of her ravishment. 9. First of all, it may be mentioned that spot Panchanama (Exh.80) is duly corroborated by P.W.2 Vaijinath. His version reveals that a chappal, a torn piece of saffron colour cloth of blouse and broken bangle pieces were recovered from the spot on 7.12.1999. The spot of incident is situated near a neem tree. The land at the place was found dishevelled. The spot is near agricultural land of one Sambhaji Ambarkhane. The spot was shown to the Police and Panchas by P.W. Praloy Ghosh. The first part of the spot panchanama (Exh.80) reveals that version of P.W. Praloy is recorded in Hindi script and, therefore, there is a ring of truth in the context thereof. Considering topography of the spot, it may be gathered that the incident occurred while P.W. Praloy and other two victims were down side the hill. 10. There is direct evidence of P.W.12 Milon Ghosh, P.W.3 Praloy Ghosh and P.W.14 - (the prosecutrix) in so far as the manner of incident is concerned. All the three witnesses consistently gave account of the road robbery and rape committed on the prosecutrix. Their versions purport to show that after taking Darshan of Goddess at temple in Somnathpur, they were returning home by road which goes from hillock. Their version purports to show that P.W. Milon was first intercepted and was assaulted by means of a stick. He identified assailants in the Court. His version purports to show that P.W. Praloy and his wife then started running away on seeing that he was being beaten up. At that time, remaining 5 culprits came running and asked P.W. Praloy and the prosecutrix as to where were they running. Their evidence reveals that those culprits snatched away gold locket weighing 15 grams, Rs.900/- and a timex watch from P.W. Milon Ghosh. He identified the said timex watch (article No.12). The remaining culprits robbed the gold ornaments and watches of P.W. Praloy and his wife. The versions of these three witnesses go to show that the culprits were armed with knives. According to them, the prosecutrix was taken little away behind a neem tree and was ravished by the accused No.l - Ankush Pawar. The remaining culprits robbed the gold ornaments and watches of P.W. Praloy and his wife. The versions of these three witnesses go to show that the culprits were armed with knives. According to them, the prosecutrix was taken little away behind a neem tree and was ravished by the accused No.l - Ankush Pawar. She and P.W. Praloy raised hue and cry. Thereupon, two persons were seen coming towards the spot and while coming they were asking for release of the victims and, therefore, the culprits fled away. 11. The version of the prosecutrix reveals that the culprits snatched away her gold bangles (Patlya), gold neckless (Ganthan), gold pendants (Zumke) and wrist watch. According to her, one of the culprit held her and one of them pressed her mouth. She narrated as to how she was ravished by the accused No.1 Ankush Pawar after she was made to fall down. Her version reveals that she raised cry for help while she was being ravished. At that time her husband and P.W. Milon were away. So also, the version of P.W.13 Praloy corroborates the story regarding the incident of road robbery and ravishment of his wife. His version reveals that the culprits took away gold locket and wrist watch alongwith Rs.1,000/- from him as well as the ornaments of his wife alongwith her wrist watch of Rs.300/-. His version shows that the culprits robbed them at the point of knife. According to him, one of the accused took him by side of the spot whereas three of them ravished his wife. He corroborates recitals of the F.I.R. (Exh.139). 12. Though there are some minor discrepancies appearing from the versions of the above witnesses, yet, the major part of their versions is rather identical. They have no business to speak lie. They were not on enmical terms with either of the appellant. It cannot be overlooked that the incident occurred at a remote place. It will have to be considered that P.W. Milon,P.W. Praloy and the prosecutrix were frightened due to suddenness of the assault and ravishment of the prosecutrix as well as loss of the valuables. They were panicked. They were outsiders to the town and could not have, therefore, decided what immediate action they should take. It will have to be considered that P.W. Milon,P.W. Praloy and the prosecutrix were frightened due to suddenness of the assault and ravishment of the prosecutrix as well as loss of the valuables. They were panicked. They were outsiders to the town and could not have, therefore, decided what immediate action they should take. Mere delay of one night in lodging of the F.I.R. (Exh.139) by itself cannot be a reason to dislodge the versions of the above referred three witnesses. 13. Rape is an incident which causes injury not only to the victim of the rape but also to her kiths and kins due to turmoil. It gives a mental blow which takes longer time to absorb and thereafter to think of appropriate situational response. The Apex Court in "State of H.P. Vs. Shrikant Shekari"(A.I.R.2004 Supreme Court 4404) held that mere delay in lodging the F.I.R. can not, particularly in rape cases, render the prosecution case brittle. 14. The Apex Court in "Om Prakash Vs. State of Uttar Pradesh" (2006 AIR SCW 2814), held that when there was no apparent reason for the victim, a married woman, to falsely implicate the accused after scatting her own prestige and honour, the plea of false implication was not tenable. It is true that injuries were not found on private part of the prosecutrix when she was medically examined by P.W. 8 Dr.Ramprasad on 7.12.1999. He noticed an abrasion on her neck and an abrasion on her back. His version shows that the prosecutrix had taken morning bath. This fact is mentioned in the medical certificate (Exh.130). He collected vaginal swab and sample of pubic hair which was referred to Chemical Analyser. His version purports to show that clinically the age of the prosecutrix was approximately 20 years. He opined that she might have been subjected to rape prior to 24 hours of the examination. The report of Chemical Analyser (Exh.129) does not give conclusive corroborative substratum to support the charge of alleged rape. It is argued that in absence of any semen on the clothes of the prosecutrix or that of the accused No.l, the charge of rape cannot be held as proved. I do not agree. In "Parbata Vs. State of Rajasthan" (2006 AIR SCW 35), the Apex Court held that absence of any stains of semen on the clothes of prosecutrix or accused is of no consequence. I do not agree. In "Parbata Vs. State of Rajasthan" (2006 AIR SCW 35), the Apex Court held that absence of any stains of semen on the clothes of prosecutrix or accused is of no consequence. The Apex Court further held that where there was no material showing that prosecutrix or her husband has any motive to falsely implicate the accused, minor discrepancies in evidence of the witnesses are not fatal to the case of prosecution. As stated before, the prosecutrix and P.W. Praloy have no reason to falsely implicate any of the appellants in connection with serious charges. Nothing of much importance could be gathered from cross-examination of the prosecutrix, P.W. Praloy and P.W.Milon. The prosecutrix had taken bath in the morning and hence stains of semen on her undergarments or presence of spermatozoa in the vaginal swab could not be expected. 15. Mr.Choudhari, would submit that identification parade was not properly held. He pointed out that the identification parade was held on 30.1.2000 whereas the appellants were arrested in the Ist and 2nd week of December 1999. I have gone through the version of P.W.17 Dhabaji. He was attached to Tahsil Office as Naib-Tahsildar. He received request letter on 29.1.2000 to hold identification parade. His version purports to show that all the six accused were brought to his office on 3l.1.2000 after covering their faces. He states that those six accused persons were mixed up with other eight persons and thereafter the identification parade was conducted. According to him, the accused were allowed to change their clothes after the first identification parade and were given liberty to stand at any position as per their desire. He corroborated the test identification panchanamas (Exhs.177 to 182). He noted down identity of the accused as per identification made by the witnesses i.e. P.W. Milon Ghosh, P.W. Praloy and the prosecutrix. On going through the version of P.W.Dhabaji, it transpires that he did not take prior care to ensure that the accused persons were not seen by the witnesses. It is important to note that prior to the date of identification parade i.e. 3l.1.2000, the accused persons were arrested and were taken to the Court of Judicial Magistrate, Udgir for purpose of remand. Nobody says that at all times, as and when they were taken to the Court for the purpose of granting or extending the remand, their faces were covered. 16. Nobody says that at all times, as and when they were taken to the Court for the purpose of granting or extending the remand, their faces were covered. 16. As a matter of fact, for conducting of identification parade in respect of each of the accused, it was essential to mix up such accused with sufficient number of persons having similar height and semblance to certain extent, in respect of the clothes etc. No such care was taken. All the six accused were mixed up with eight other persons and one by one the witnesses were called inside to identify the culprits. The panch witness also does not corroborate the test identification parade. Needless to say, the test identification carried out by P.W.17 Dhabaji is unacceptable owing to legal infirmities and also for want of sufficient corroboration of independent witnesses. 17. The accused were, however, identified by P.W. Milon Ghosh, P.W. Praloy Ghosh and the prosecutrix in the Court. These witnesses pointed out the accused persons as the culprits. Significantly, the prosecutrix categorically stated that accused No.l Ankush Pawar was the same person who ravished her. The other accused persons were identified by the witnesses as the same culprits who committed dacoity in the relevant noon. One cannot be oblivious of the fact that the incident of dacoity took place at about 4/4-30 p.m. in the broad day light and at a secluded place. The identities of the culprits could be noticed by the victims. For, the victims were in the company of the culprits for sufficient time. They had opportunity to see the culprits. When a shocking incident like dacoity occurs, normally, imprints of the faces of the culprits are stored in the memory of the victims. The victims cannot forget the profiles and faces of those who commit the road robbery by use of criminal force. The identification of the culprits in the Court, therefore, cannot be brushed aside even though the test identification parade suffers from legal infirmities. 18. The Apex Court in "Heera and another Vs. State of Rajasthan" (2007 AIR SCW 4304), held that holding of identification parade is not obligatory and does not constitute substantive evidence. The relevant observations may be reproduced as follows : ". 18. The Apex Court in "Heera and another Vs. State of Rajasthan" (2007 AIR SCW 4304), held that holding of identification parade is not obligatory and does not constitute substantive evidence. The relevant observations may be reproduced as follows : ". This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration (See Kanta Prasad Vs. Delhi Administration (AIR 1958 SC 350); Vaikuntam Chandrappa and others Vs. State of Andhra Pradesh (AIR 1960 SC 1340); Budhsen and another Vs. State of U.P. ( AIR 1970 SC 1321 ) and Rameshwar Singh Vs. State of Jammu and Kashmir ( AIR 1972 SC 102 )." 19. In""Thambi Nasir and etc. Vs. State (2003 Cri.L.J.493) A Single Bench of this Court held that even though evidence of test identification parade was discarded because of legal infirmities yet, identification of accused persons in Court can be relied upon. It was also a case of dacoity and rape committed on victims, who were foreigners while they were returning to their residences. 20. Though the appellants were identified by the above referred witnesses in the Court as the same assailants and robbers yet, unfortunately, the recording of the evidence does not reflect particulars of such identification with reference to role played by each of the appellant. The learned Adhoc Additional Sessions Judge recorded identification of accused No.l Ankush Pawar as referred by P.W.14 (prosecutrix). In so far as identification by P.W. Milon and P.W. Praloy, is concerned, there is general statement to the effect that all the accused were present in the Court. The learned Adhoc Additional Sessions Judge recorded identification of accused No.l Ankush Pawar as referred by P.W.14 (prosecutrix). In so far as identification by P.W. Milon and P.W. Praloy, is concerned, there is general statement to the effect that all the accused were present in the Court. The learned Adhoc Additional Sessions Judge should have recorded the identification of the accused persons with reference to their serial number and name, so as to avoid any ambiguity. The fact remains, however, that P.W.Milon and P.W. Praloy identified the appellants as the same accused persons. Even general identification of the appellants in the Court would suffice the purpose when common charge is in respect of simultaneous robbery committed by them. They robbed P.W.Milon, P.W. Praloy and the prosecutrix of the wrist watches, cash amounts and gold ornaments like locket, Ganthan and Zumke. 21. There is evidence of P.W.15 P.I. Shri Dattatraya Walke, in relation to recoveries made at the instance of the appellants. His version purports to show that appellant Vijay Pawar made a statement to the effect that he would produce two gold Pendants (Zumke). A memorandum panchanama (Exh.111) was drawn as per his statement. Thereafter, the gold Pendants were recovered at his instance as shown under seizure panchanama (Exh.112). So also, on 12.12.1999 accused No.5 Pappu @ Yuvraj gave a statement which was recorded vide Memorandum Panchanama (Exh.106). Thereafter gold ornament called (Ganthan) was seized under a seizure panchanama (Exh.107). As per statement of accused No.4 Ankush Rathod, a Memorandum Panchanama (Exh.115) was drawn and a wrist watch of timex company was seized vide panchanama (Exh.116). It is stated that accused No.3 Sanjay gave a statement leading to recovery of Rs.1,000/-. In this context, there is version of P.W.7 Sham. He partly corroborated the Memorandum Panchanamas. His version purports to show that accused No.6 Papa @ Yuvraj stated that he would produce gold Ganthan which was seized as per panchanama (Exh.107). He corroborates the Memorandum Panchanama (Exh.106). The gold Ganthan (article 10) was identified by P.W. Sham as the same one which was recovered at the instance of accused No.6 Papa @ Yuvraj. His version shows that accused No.2 Vijay produced gold earing - Pendants (Zumke) which were seized in his presence under panchanama (Exh.112). He also corroborates the Memorandum Panchanama (Exh.111). The gold Ganthan (article 10) was identified by P.W. Sham as the same one which was recovered at the instance of accused No.6 Papa @ Yuvraj. His version shows that accused No.2 Vijay produced gold earing - Pendants (Zumke) which were seized in his presence under panchanama (Exh.112). He also corroborates the Memorandum Panchanama (Exh.111). He further corroborated recovery of three wrist watches as per the Memorandum Panchanamas (Exh.115 and Exh.116) and Seizure Panchanamas (Exh.116 and Exh.118). He states that two panchanamas were drawn at his shop whereas the remaining panchanamas were prepared on the spot. He was unable to disclose which panchanamas were prepared at his shop and which of them were drawn at the spot. It appears that due to passage of time he was unable to locate the details of the recovery panchanamas. 22. There is no effective cross-examination directed against P.W. 15 P.I. Shri Dattatraya as regards the recoveries made at the instance of above noted accused persons. There is no reason, whatsoever, to dislodge version of P.W. P.I. Shri Dattatraya in this connection. It is worthwhile to note that P.W. 14 Deepali (prosecutrix) identified the ladies wrist watch (article No.7) as well as gold Pendant - Zumke (article 9). She also identified the wrist watch (article 8) and the wrist watch (article 12) as the wrist watches of P.W.Praloy and P.W. Milon. They too identified the said wrist watches. 23. It is true that the articles recovered at the instance of the appellants do not bear specific identification marks. However, the evidence on record goes to show that the articles were being regularly used by the above referred witnesses. They identified the said articles being conversant with the regular use of such articles. It is nobody’s case that the articles were newly purchased. It is common knowledge that due to regular use the articles like wrist watch and ornaments they are identifiable by the user. Moreover, the appellants never claimed any of the articles. They did not seriously dispute the identification of such articles by the above three witnesses, during course of the trial and hence, now it is difficult to give much importance to the lack of identification marks and to raise doubt regarding identification of said articles by the said witnesses. 24. The learned advocates for the appellants criticised the conduct of P.W.Praloy, P.W.Milon and the prosecutrix. 24. The learned advocates for the appellants criticised the conduct of P.W.Praloy, P.W.Milon and the prosecutrix. According to them, ordinarily no prudent person would have kept silence over such a ghastly incident. They contended that the delay in lodging of the F.I.R. would indicate false implication of the applicants. I do not agree. First, it cannot be ignored that the above referred witnesses and the prosecutrix were not inhabitants of Udgir. They had migrated from West Bengal. They were shocked due to the sudden incident and needed some time to come out of the mental trauma. Secondly, the F.I.R.(Exh.139) does not reveal names of the culprits. Had it been a design to frame the appellants due to political rivalry as claimed by them, the names of culprits would have appeared in the F.I.R. The F.I.R. purports to show that eight unknown persons surrounded and looted P.W. Praloy, P.W. Milon and the prosecutrix as well as ravished the prosecutrix. Obviously, delay of 12/14 hours cannot be regarded as a ground to dislodge the case of prosecution. 25. The prestige of the family was at a stake. Unless there was moral support available to P.W. Praloy, he could not have finally decided to lodge the report. Considering these reasons, conduct of the prosecutrix and the above witnesses cannot be treated as unnatural. It is stated by P.W.4 Surendra that in his presence blouse of saffron colour, petticoat of red colour and nicker of bluish colour were attached under panchanama (Exh.94) after the articles were produced by the prosecutrix. So also, it is duly proved from version of P.W.2 Vaijinath that spot panchanama was drawn by the Police and bangle pieces of broken bangles, a chappal and a torn piece of cloth of blouse were attached. He corroborates the panchanama (Exh.80). It is important to note that first part of the said spot panchanama (Exh.80) is scribed in Hindi script. The panchanama was drawn on 7.12.1999. The recitals of the panchanama (Exh.80) reveals that P.W. Praloy identified the torn piece of cloth as that of the same blouse and chappal of the prosecutrix. These are the tale telling facts. The said panchanama is also corroborated by P.W. P.I. Shri Dattatraya. 26. The panchanama was drawn on 7.12.1999. The recitals of the panchanama (Exh.80) reveals that P.W. Praloy identified the torn piece of cloth as that of the same blouse and chappal of the prosecutrix. These are the tale telling facts. The said panchanama is also corroborated by P.W. P.I. Shri Dattatraya. 26. The sum-total of foregoing discussion is that presence of all the appellants at the time of commission of the offence of the dacoity, their participation in looting the valuable articles of P.W. Praloy, P.W. Milon and the prosecutrix is duly proved by the direct evidence as well as the corroborative pieces of the evidence. The circumstantial evidence lends support to the prosecution case. The conviction of all the appellants for offence U/s 395 of the I.P.C. is, therefore, legal and proper. I do not find any substantial error committed by the trial Court while convicting the appellants for the said offence. However, as regards the offence of gang rape, it may be stated that identity of only the original accused No.l Ankush Pawar as a rapist is duly proved. The trial Court did not record identity of the two culprits who assisted him while holding the prosecutrix at the spot. There is no reliable evidence to show that all the appellants had a common intention to commit gang rape on the prosecutrix. It is more probable that the original accused No.l Ankush Pawar suddenly desired to unleash his lust on seeing the prosecutrix in helpless condition. Her youth and the fact that she was unable to speak Marathi might have bolstered him to commit the offence of rape. The evidence on record does not show any common design as regards commission of rape on the prosecutrix. Unless knowledge can be imputed to the other accused, they cannot be roped in and held guilty for offence of gang rape punishable U/s 376(g) of the I.P.C. I am of the opinion, therefore, that the trial Court committed error while convicting the appellants for offence of gang rape U/s 376(g) of the I.P.C. Their conviction and sentence for such offence will have to be, therefore, set aside. The learned Adhoc Additional Sessions Judge also passed order to pay compensation U/s 357 of the Cr.P.C. to the prosecutrix. However, such compensation is not made payable out of the fine amount. The learned Adhoc Additional Sessions Judge also passed order to pay compensation U/s 357 of the Cr.P.C. to the prosecutrix. However, such compensation is not made payable out of the fine amount. It appears that the order of compensation is rendered U/s 357(3) of the Cr.P.C. However, when fine is part of the sentence then such compensation cannot be granted under subclause (3). Moreover, sentence in default of payment of compensation also is illegal. Hence, this part of the impugned judgment is unsustainable. 27. For the reasons aforesaid, the impugned order of conviction and sentence to the extent of offence U/s 376(g) of the I.P.C. will have to be set aside. The remaining part of the impugned judgment, including the order of conviction and sentence for offence U/s 395 of the I.P.C. does not call for interference. The appeal is partly allowed. The appellants are acquitted for charge in respect of offence U/s 376(g) of the I.P.C. and the impugned order of conviction and sentence is set aside. The impugned order regarding award of compensation and sentences in default is also set aside. The appeal is dismissed to the extent of order of conviction and sentence in respect of offence U/s 395 of the I.P.C. and also in respect of order regarding disposal of the property. The conviction and sentence for offence U/s 395 of the I.P.C. is maintained. Ordered accordingly.