Research › Search › Judgment

Bombay High Court · body

2015 DIGILAW 1284 (BOM)

Jalandar Visnu Wadekar v. State of Maharashtra

2015-06-12

A.B.CHAUDHARI

body2015
JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by the Judgment and Order dated 22nd June, 2012, passed by learned Additional Sessions Judge-1, Amravati in Sessions Trial No. 165 of 2010 by which the appellant - Accused No. 2 -- Jalandar was convicted of offence punishable under Section 376(2)(g) of Indian Penal Code, and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 1,000/- in default further Rigorous Imprisonment for two months the appellant filed the present appeal before this Court. In support of the appeal, learned counsel for the appellant submitted that it is the case of the prosecution itself that the present appellant accused Jalandar did not commit any rape on the prosecutrix 'V' and that he was only with the principal accused Rauf Khan son of Noor Khan who in fact committed rape and he has been convicted by Additional Sessions Judge - 1 Amravati by Judgment and Order dated 6th January, 2014 and Imprisonment for Life has been imposed on him. According to the learned counsel for the appellant the question of holding the appellant guilty of the offence of gang rape, therefore, did not arise since there is no overt action the part of appellant and therefore, he should have been acquitted of the charge levelled against him. He submitted that the appellant could not be convicted by virtue of the definition of the 'gang rape' under Section 376 (2) (g) of Indian Penal Code, looking to the alleged role played by the appellant only of waiting outside the room where the rape was being committed by the principal accused Rauf Khan. He therefore, submitted that the appellant could not be held guilty of the offence of gang rape. 2. Per contra, learned APP for the State supported the impugned Judgment and Order and submitted that though it is true that the appellant did not physically commit rape on the victim 'V' looking to the previous background so also the evidence on the date of incident of rape and the participation of the appellant, no error has been committed by the Trial Judge in convicting him of the offence of gang rape. He, therefore, prayed for dismissal of the appeal. 3. He, therefore, prayed for dismissal of the appeal. 3. I have carefully perused the evidence of all the witnesses that was tendered by the prosecution before Trial Judge with the assistance of the learned counsel for the rival parties. I have perused the reasons recorded by the learned Trial Judge for convicting the appellant-accused. 4. The evidence of the witnesses clearly established that the accused Rauf Khan committed rape on the prosecutrix ' V, who was mentally ill in the room at the village which was in the possession of Gram Panchayat. As a matter of fact, the counsel for the appellant did not and, in fact, could not assail the evidence so far as commission of actual rape is concerned, because the evidence does not relate to appellant about the actual incident of rape. However, so far as the appellant is concerned, he was an active participant with Rauf Khan right from the beginning till the offence of rape was completed and that evidence was relevant in so far as the present appellant Jalandar is concerned. The evidence of the witness about the role played by Jalandar the present appellant, is crucial to find out whether he can be held responsible as an accused for commission of gang rape within the meaning of definition of 'gang rape.' I quote the evidence of Vilas Madar [PW1] in this context in relation to the role of Jalandar along with Rauf Khan, the main accused, which reads thus:-- "...............................In our village a mad woman was roaming around. Raufkhan and Jalandar said that they will treat Vimal. The villagers agreed for the same. We villagers collected contribution for the treatment of Vimal. There is a water pump of water supply in front of my house. There is one room. In that room Jalandar Wadekar and Raufkhan had started Pooja for treatment. Myself and other villagers were present outside the room. After some time Jalandar came out of the room. Raufkhan closed the door from inside. Jalandar was standing beside the room at some distance. I pipped inside so as to see what type of treatment was going on inside. I saw Raufkhan on the body of Vimal. His pant and nicker was pull down. Sari of Vimalbai was lifted up. He was having sexual intercourse with her. Therefore I immediately called the other persons including Pramod Wankhade and Arun Sawai......" The FIR [Exh. I pipped inside so as to see what type of treatment was going on inside. I saw Raufkhan on the body of Vimal. His pant and nicker was pull down. Sari of Vimalbai was lifted up. He was having sexual intercourse with her. Therefore I immediately called the other persons including Pramod Wankhade and Arun Sawai......" The FIR [Exh. 38] was lodged by Vilas [PW 1] which fully corroborates his version as stated before the Court in his substantive evidence. 5. Similar is the evidence of Pramod Wankhade [PW 2], relevant portion of which is quoted below:-- "On 4.2.2010 Raufkhan and Jalandar Wadekar came to our village. In our village there was a mad woman Vimalbai. Both of them had been to the house of Wasudeo Wadekar. Both of them told Wasudeo Wadekar that Vimalbai can be cured with treatment. Therefore, Wasudeo Wadekar proposed the same in front of my villagers. Villagers agreed with the said proposal. For the expenses required for treatment of Vimalbai we collected contribution from the villages. On 4th and 5th February Vimalbai was treated at the house of Wasudeo Wadekar by Raufkhan and Jalandar. Thereafter they told the villagers that now the treatment have to be given within the four walls. Thereafter both of them went to the Upsarpanch of village Manoharrao Meshram and asked for a room. Therefore, Upsarpanch asked them to use the water supply room. On 06.02.2010 at about 12'o clock in the afternoon Rauf Khan, Jalandar, Vimalbai, Ramdasji Wahane and one Pandre went to the room of Water supply. Myself and other villagers were standing outside the room. Ramdas Wahane, Pandre and Jalandar came out of the house. Thereafter Raufkhan closed the door of the room from inside. As the treatment was going on inside, we all were standing outside. As after 15 minutes there was a curiosity among the villagers as to what type of treatment was going on inside we asked Vilas Madar to see inside. Vilas Madar pipped inside through the window. He called me with signs. 1 too saw inside from me window. At that time Rauf Khan was doing sexual intercourse with Vimal. The villagers also followed me towards me window. We too asked him as to whether this is his treatment. We asked Raufkhan to open the door. At that time he had consumed liquor. There was a noise of the people. 1 too saw inside from me window. At that time Rauf Khan was doing sexual intercourse with Vimal. The villagers also followed me towards me window. We too asked him as to whether this is his treatment. We asked Raufkhan to open the door. At that time he had consumed liquor. There was a noise of the people. All the villagers were looking inside the window. Therefore Vimalbai got frightened. She was trying to open the door. But Raufkhan was not allowing to open the door by restraining her holding her hand. But Vimalbai anyhow could open the door. Police Patil was called over there. He made a phone call to police. At the time of the incident Jalandar was standing outside the room. Jalandar Wadekar was along with Raufkhan and helping him. Jalandar Wadekar is present before the Court today." The evidence of these two witnesses, to my mind, clearly shows active participation of the appellant Jalandar with Rauf Khan in the commission of the offence in question. Having, thus, referred to the evidence of the witnesses as above, now I proceed to deal with the contention regarding the legal consequences flowing from the definition of the 'gang rape.' Having gone through the Judgment of the Trial Court, I think, it is not necessary for me to go on repeating the reasons and instead the Trial Court has dealt with the said aspect of the matter with good elucidation. I quote paras 20, 21 and 22 from the Judgment of the Trial Court, which read thus:-- "20. For the offence punishable under section 376 (2) (g) of Indian Penal Code prosecution is required to prove the rape committed by more than one persons i.e., gang rape. Explanation 1 to section 376 of Indian Penal Code reads as under:-- "Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section." No specific act of rape is required by each of the accused. However, prior concert or meeting of mind is required. Mere presence at the place of commission of offence is not sufficient for showing prior concert or meeting of mind or plan formed for the commission of offence. However, prior concert or meeting of mind is required. Mere presence at the place of commission of offence is not sufficient for showing prior concert or meeting of mind or plan formed for the commission of offence. It is the intention of accused i.e., mens rea which involves them in the crime. In the present case prosecutrix is not available for examination before the Court being a mentally ill person. It is a settled law that testimony of prosecutrix should not suffer from any infirmity in the facts and circumstances of the case. Prosecution can prove its case on the sole testimony prosecutrix. However, as the prosecutrix is not available before the Court, eye witnesses are material witnesses to decide the case of the prosecution, specifically when the prosecutrix is not able to depose anything before the Court as not oriented to time, place, and person. Therefore, the evidence is to be looked in totality to come on the conclusion of gang rape to see whether the accused would come within mischief of definition of gang rape. 21. It is not necessary that all the persons should be involved in the act of rape as per the Explanation-1 to section 376 of Indian Penal Code. Accused Jalandar was along with Rauf Khan since arrival in the village. He was performing Puja rather both the accused were doing the act of treatment of prosecutrix. Critically going through the evidence of PWs 1, 2 and 4 it is found that prosecutrix is not available to state about the rape and PWs 1 and 2 have stated in one voice about the manner in which offence was committed by accused persons. PW 2 is advocate by profession. Evidence adduced by the prosecution is consistent and inspires confidence. Therefore, there is no reason to doubt the truthfulness of the evidence so deposed by both the witnesses. Villagers have promptly informed the police and accused were caught hold by them till arrival of the police and they were handed over to the police. 22.................................................................To the contrary in the statement u/s. 313 of Cr. P.C. he has stated that there was dispute of villagers with his uncle therefore, he is falsely trapped in the case. However, no such defence was raised at the time of cross-examination of witnesses. No strong motive is brought by the defence to show that he is falsely involved by the villagers. P.C. he has stated that there was dispute of villagers with his uncle therefore, he is falsely trapped in the case. However, no such defence was raised at the time of cross-examination of witnesses. No strong motive is brought by the defence to show that he is falsely involved by the villagers. Therefore, whatever was done by accused Rauf Khan is with accused Jalandar." Upon perusal of the above reasons, I concur with the reasons recorded above by the Trial Judge. I am thus, satisfied that the appellant having participated in the activity of commission of a gang rape is equally responsible and guilty of the offence of gang rape. There is no merit in the instant appeal. Hence the following order:-- ORDER Criminal Appeal No. 316 of 2012 is dismissed.