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2019 DIGILAW 1502 (BOM)

Vijay v. State of Maharashtra

2019-06-28

V.M.DESHPANDE

body2019
JUDGMENT : V.M. Deshpande, J. 1. These two appeals were heard simultaneously and they are decided by this common judgment. These appeals arise out of the judgment and order of conviction passed by the learned 1st Adhoc Additional Sessions Judge, Khamgaon in Sessions Case No. 06/2005 on 24.10.2005. 2. By the aforesaid judgment and order of conviction, the Court below recorded a finding of guilt for the offence punishable under Section 376(1) of the Indian Penal Code against appellant-Vijay Tulshiram Bangar in Criminal Appeal No. 618/2005 and he was sentenced to suffer rigorous imprisonment for Ten years and to pay a fine amount of Rs. 1,000/- and in default he was ordered to suffer simple imprisonment for six months Appellant-Anil Sahadev Wankhede in Criminal Appeal No. 612/2005 was found to be guilty for the offence punishable under Section 114 read with Section 376(1) of the Indian Penal Code and was directed to suffer rigorous imprisonment for Ten years. He was also ordered to pay a fine amount of Rs. 1,000/- and in default of payment of fine to suffer simple imprisonment for six months. Both the appellants were found to be guilty for the offence punishable under Section 506 read with Section 34 of the Indian Penal Code and therefore, they were directed to pay a fine of Rs. 1,000/- and in default of payment of fine to suffer simple imprisonment for six months. 3. Appellant-Vijay Bangar is the accused no. 1, whereas appellant-Anil Wankhede is the accused no. 2. They will be referred to in this judgment as per their position in the trial. 4. Accused no. 1 Vijay is represented by Advocate Saurabh Singha, the counsel appointed to represent him, whereas accused no. 2 Anil is represented by Advocate S.V. Sirpurkar. The State is represented in these two appeals by Mr. S.M. Ukey, the learned Additional Public Prosecutor. (I) FACTUAL MATRIX: (a) PSI Bhaskar Sonaji Mohod (PW-4) on 15.11.2004 was attached to Police Station, Tamgaon. Along with him, ASI Subhash Kale was also attached to the said police station. On the said date, investigation of Crime No. 135/2004 for the offences punishable under Sections 376, 506 read with Section 34 of the Indian Penal Code, registered by ASI Subhash Kale, was entrusted to PSI Bhaskar Mohod (PW-4). (b) The offence was registered on the basis of oral report lodged by the victim (PW-1) herself. On the said date, investigation of Crime No. 135/2004 for the offences punishable under Sections 376, 506 read with Section 34 of the Indian Penal Code, registered by ASI Subhash Kale, was entrusted to PSI Bhaskar Mohod (PW-4). (b) The offence was registered on the basis of oral report lodged by the victim (PW-1) herself. Her oral report is at Exh.17. On the basis of the said oral report, ASI Subhash Kale registered the crime and the printed first information report is at Exh.19. When the investigation was entrusted to PW-4 Bhakar Mohod, that time the victim was present in the police station itself. (c) The oral report of the victim is dated 15.11.2004. As per the said report, she resides at village Tunki along with her parents. Her father is an agricultural labour. As per the report, on 14.11.2004 at night, she along with her younger sister Diksha (PW-3) went to Sonala Road as usual to answer nature's call at about 8.30 in the night. While returning after answering nature's call, both the accused of the same village came near Zilla Parishad school and caught her and extended threat that if she raises voice, they will kill her. Accused no. 2 Anil pressed her mouth and caught hold of her hands and accused no. 1 Vijay was asking her to remove her clothes. Both of them took her near urinal of the school. Accused no. 1 Vijay removed her pant/nicker. He also removed his clothes and forcibly inserted his private part in her private part and committed sexual intercourse and discharged his semen into her vagina. Accused no. 2 Anil pressed her mouth and caught hold of her hands. Diksha, her younger sister, rushed towards house and thinking that her parents would come, both the accused ran away from the spot. Thereafter, she started going towards the house. That time she noticed her parents on the road itself. She narrated the entire incident to them and as it was night time and there was no vehicle, they could not come to police station to lodge the report. With these facts narrated in the oral report, the crime was registered. (d) As the victim was present in the police station and the investigation was entrusted to PSI Bhaskar Mohod, he recorded her statement. Thereafter, he along with the victim visited the spot of the incident. With these facts narrated in the oral report, the crime was registered. (d) As the victim was present in the police station and the investigation was entrusted to PSI Bhaskar Mohod, he recorded her statement. Thereafter, he along with the victim visited the spot of the incident. He prepared the spot panchanama (Exh.26) in presence of panchas. Thereafter, he referred the victim to hospital. He also recorded the statement of victim's mother, sister and brother. On the same day, he received the sample of pubic hair, slides from hospital. Those were seized vide seizure panchamama (Exh.27). He also seized the clothes of the victim under seizure panchanama (Exh.19). He also arrested both the accused and referred them to the hospital. Under Exh.28, the Investigating Officer seized the clothes of accused No. 1 Vijay. Under seizure panchanama Exh.29, he seized the samples of pubic hair, semen etc. of the accused received from hospital. Under requisition letter (Exh.30), the Investigating Officer sent the seized articles to the Chemical Analyser. PW-4 Bhakar Mohod filed the final report in the Court of learned jurisdictional Magistrate. (e) The learned jurisdictional Magistrate found that the offence is exclusively triable by the Court of Sessions. Therefore, the case was committed to the Court of Sessions. After its committal, it was registered as Sessions Case No. 06/2005 and was alloted on the file of learned 1st Ad-hoc Additional Sessions Judge, Khamgaon, who framed the charge for the offence punishable under Section 376 read with Section 34 of the Indian Penal Code against accused no. 1 Vijay and also framed a charge against accused no. 2 Anil that he abeted accused no. 1 in commission of rape. They were also charged for the offence punishable under Section 506 read with Section 34 of the Indian Penal Code. The charges framed against the accused persons were denied by them and they claimed for their trial. In order to bring home the guilt of the accused persons, the prosecution has examined in all four witnesses. They are, PW-1 victim, PW-2 Dr. Rajesh Falke, who examined the victim, PW-3 Diksha, younger sister of the victim and PW-4 PSI Bhaskar Mohod, the Investigating Officer. (f) During trial, statements of both the accused persons were also recorded by the learned Judge of the Court below under Section 313 of the Code of Criminal Procedure. They are, PW-1 victim, PW-2 Dr. Rajesh Falke, who examined the victim, PW-3 Diksha, younger sister of the victim and PW-4 PSI Bhaskar Mohod, the Investigating Officer. (f) During trial, statements of both the accused persons were also recorded by the learned Judge of the Court below under Section 313 of the Code of Criminal Procedure. To a question whether they intend to examine any defence witness, both answered in affirmative and accordingly they examined Dr. Pramod Rojatkar (DW-1), Vishwanath Sasane (DW-2), Dnyaneshwar Bendarkar (DW-3) and Sayyad Lukman (DW-4). From the line of cross-examination and adducing version through the defence witnesses, the accused persons, it appears, have taken the plea of alibi. (g) The learned Judge of the Court below, on an appreciation of the prosecution case, found that the version of the victim is trustworthy and safe for recording conviction. Accordingly, after giving due weightage to the medical evidence, the learned Judge passed the impugned judgment. Hence, this appeal. (II) SUBMISSIONS: (i) Common thread of submissions of both the learned counsel for the accused persons is that they are falsely implicated in the crime. According to them, the medical evidence belies the victim inasmuch as Dr. Rajesh (PW-2) could not notice any injury over the thighs, buttocks, back and over breasts of the victim. They also submitted that though the doctor has found that hymen was torn, Exh.21 the medical certificate does not show that hymen was torn freshly. They also submitted that the doctor, on examination of the victim, noted in Exh.21 that the blood oozing from vagina was brown in colour and the doctor has said that it may be menstrual blood. In view of the findings in medical certificate (Exh.21), they submitted that it would be very unsafe to accept the version of the victim as trustworthy since her version is not found corroborated by contemporaneous document (Exh.21). To buttress this, they relied on two rulings of the Hon'ble Supreme Court in the case of Sadashiv Ramrao Hadbe vs. State of Maharashtra and Another, (2006) 10 SCC 92 , and Dola @ Dolagobinda Pradhan and Another vs. State of Orissa, 2018 All SCR (Cri) 1394. They also relied on a writing by Jamie Eske, which they took out from Internet to point out that brownish blood may indicate that it's a menstrual blood. They also relied on a writing by Jamie Eske, which they took out from Internet to point out that brownish blood may indicate that it's a menstrual blood. It is also their submission that the conduct of the victim is also unnatural in not raising voice for help, though the spot of the incident in question is surrounded by various shops. They submitted that evidence of Diksha (PW-3) would show that the house of the victim was only 3 minute away from the spot and therefore, they submitted that the incident could not have occurred within such a short span. They also raised suspicion about the truthfulness of the prosecution case for not examining any person whose shops were situated near the spot of the incident. (ii) According to the learned counsel for the accused persons, evidence of the Investigating Officer (PW-4) would show that though the muddemal articles were sent to the Chemical Analyser, the prosecution did not file on record the Chemical Analyser's report. In view of that it is their submission that even the scientific evidence is absent in this case. They, therefore, submitted that this is a fit case wherein the benefit of doubt should be extended in favour of the appellants. (iii) Both the learned counsel would submit that though both the accused took a plea of alibi before the Court below and to substantiate their defence, they examined four defence witnesses, they submitted before this Court that on the instructions from the accused persons, who were personally present during course of the hearing, they are not pressing the said aspect and therefore, they did not rely at all on the testimonies of four defence witnesses. (iv) Alternatively, they submitted that compromise has arrived at in between the victim and the accused persons. Therefore, lesser punishment be imposed upon them and for that they relied on the decision of the Hon'ble Apex Court in the case of Baldev Singh and Others vs. State of Punjab, (2011) AIR SC 1231. (v) Per contra, Mr. Ukey, the learned Additional Public Prosecutor for the State with vehemence submitted that the helpless girl was subjected to fulfill the lust. He submitted that the Court below has rightly relied upon the evidence of the victim. (v) Per contra, Mr. Ukey, the learned Additional Public Prosecutor for the State with vehemence submitted that the helpless girl was subjected to fulfill the lust. He submitted that the Court below has rightly relied upon the evidence of the victim. He submitted that if the version of the victim is found to be trustworthy, then asking the corroboration to her version is nothing but to rub salt on the injury. He submitted that the appeal be dismissed. (III) CRITICAL ANALYSIS OF THE PROSECUTION CASE: 5. To prove the charge, the prosecution has examined four witnesses, they are PW-1 victim, PW-2 Dr. Rajesh Falke, who examined the victim, PW-3 Diksha, the younger sister of the victim, who was accompanying her when they were returning after answering nature's call and in her presence accused persons took away the victim towards the place of incident where they committed rape and PW-4 PSO Bhaskar Mohod, the Investigating Officer. A. ANALYSIS OF EVIDENCE OF VICTIM 6. It is the trait law and the established principle by various judicial pronouncements that if evidence of the victim is found to be trustworthy, reliable and inspires confidence in judicial mind of the Court, her solitary evidence can be the basis for recording conviction. 7. The law is also settled that unless there are compelling reasons which necessitate looking corroboration to the victim's evidence, the Courts should not find difficulty in acting on the testimony of the victim of sexual assault alone to convict an accused when her testimony is found to be reliable and inspires confidence. 8. Reliance placed on Sadashiv Hadbe's case (supra) can be distinguished on the facts. In the said case, the appellant was running a clinic and on the date of the incident, the victim along with her husband came to his clinic on 17.12.1990 and during her medical examination, it is alleged that the doctor meddled with the private parts of the said victim. The Hon'ble Apex Court found in paragraph 9 of the said report that though the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. The Hon'ble Apex Court found in paragraph 9 of the said report that though the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. However, if the version given by the prosecutrix is unsupported by the medical evidence or the whole surrounding circumstances are highly improbable, then the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the whole case is improbable and unlikely to happen. Reliance placed on Dola @ Dolgobinda Pradhan's case (supra) also, in my view, is not useful for the accused persons since in paragraph 13 of the said report, it is observed by the Hon'ble Apex Court that although the prosecutrix admitted that she sustained bleeding injuries on her hand because of the shattering of eight bangles worn by her on her right hand and seven bangles on her right hand, the medical records do not support the said version and no injuries were found on the breasts. No internal injuries were there on any part of her body. The facts of Dola's case and the present case are altogether different. 9. The crucial question is whether the evidence of the victim inspires confidence or not. 10. The incident in question has occurred on the day of "Bhaubeej" the part and parcel of Diwali festival and the said day is observed in every household in this part of the region. On the said day, a sister performs pooja of her brother and the said is only after sighting of the moon. This day is not celebrated jointly with other members of the community, but is it a solemn private affair of every family. According to the version of the victim, the incident took place in between 8.00 to 8.30 pm on the said day. Though, in her cross-examination it is brought on record that the place is surrounded by various shops, there is no evidence on record to show that at that particular point of time any of the shops was open. According to the version of the victim, the incident took place in between 8.00 to 8.30 pm on the said day. Though, in her cross-examination it is brought on record that the place is surrounded by various shops, there is no evidence on record to show that at that particular point of time any of the shops was open. If that be so, mere existence of the shops were of no use if they are not open and the fact that the incident has occurred near the toilet of the school, looking to the timing, there is no difficulty in my mind to record a finding that at that particular point of time, the said place was "isolated" one. 11. The incident in question has occurred on 14.11.2004 and the oral report is lodged on 15.11.2004 at Police Station, Tamgaon. The printed first information report is at Exh.18. It shows that the information was received at police station on 15.11.2004 at 8.30 in the morning. The distance between village Tunki where the incident has occurred and the police station is 18 kilometers. Further, the victim in her oral report itself has offered an explanation to the effect that as the incident occurred in night time and there was no vehicle available, on the very same day the report could not be lodged. Even in her substantive evidence, she deposed that after the incident was narrated to her parents, they all went to the house of Police Patil and narrated the incident, however, he advised them to go to police station and accordingly they all went to Sonala police chowki, though in deposition she states Sonala police station, on foot. There they found nobody present. So they returned to home and as there was no conveyance available, they came back and on the next day they lodged the report. Though, in the present case it was not the submission before this Court on behalf of both the advocates for the appellants that the prosecution case is not truthful because of delay in lodging the report, in my view, the victim has given plausible explanation for lodging the report on the next day. I am of the view that the explanation offered in both, the oral report as well from the witness box by the victim, is acceptable one and the delay cannot be an impediment in the prosecution case. 12. I am of the view that the explanation offered in both, the oral report as well from the witness box by the victim, is acceptable one and the delay cannot be an impediment in the prosecution case. 12. According to the evidence of the victim, when she and her sister Diksha (PW-3) were returning to home after answering the nature's call and when they reached to Zilla Parishad School, there accused Anil caught hold the victim's hand and thereafter they took the victim towards urinal of the school. Evidence of the victim and Diksha corroborates each other on this aspect. 13. According to the victim, the incident of holding hand occurred at the pan shop of Sachin Makode. This fact is also corroborated by Diksha in her evidence. As per the version of the victim, that time pan shop of Makode was closed and there is nothing on record to disbelieve this version of the victim. At this stage, according to the victim, Diksha ran away towards her home. This also found corroboration in the evidence of Diksha. 14. According to the learned counsel for the appellants, if the evidence of the victim is scanned then it shows that the accused dragged her near the urinal of the school. According to the learned counsel for the appellants if she was dragged from the spot i.e. Sachin Makode's pan shop to urinal of the school, there would have been some sort of marks. At the first blush this submission looks to be attractive, however, perusal of the entire record shows that there is a variance in English version and vernacular version of the victim on this aspect. In English version it is typed as "both the accused took me dragging to the urinal", while in the vernacular it is written as (emphasis supplied). When there is a difference in English version and vernacular version, which version has to be accepted is not in res-integra. By a Division Bench decision of this Court in the case of State of Maharashtra vs. Bhaurao Doma Udan and Others, (1996) 1 Mh. L.J. 214, it is ruled by this Court that in such an event, the vernacular version will prevail. In that view of the matter, the victim was not dragged from the pan shop of Makode to the place of commission of the rate, rather she was pushed. L.J. 214, it is ruled by this Court that in such an event, the vernacular version will prevail. In that view of the matter, the victim was not dragged from the pan shop of Makode to the place of commission of the rate, rather she was pushed. Further, it is not the version of the victim that in that process she fell down. If that be so, the possibility of even slightest external injury on her body is completely ruled out. 15. Evidence of the victim shows that accused Anil caught hold of her hand and shut her mouth. Therefore, there was no opportunity for the victim to raise shouts in order to call attention of any passerby. According to the version of the victim, thereafter accused Vijay removed her clothes and had sexual intercourse with her. In her cross-examination also it is brought on record that accused Anil gagged her mouth. The only thing that could be brought on record in the cross-examination is that she could not tell which hand was caught by accused Anil, in my view, it is a very minor omission. It is specifically brought on record through her cross-examination that "I did not attempt to resist." From the aforesaid, it appears that in such a situation, the victim had surrendered to her fate and did not resist at all. Once it is established that she offered no resistance, the possibility of any marks whatsoever on her body showing the violence is completely ruled out. The evidence of the victim, in my view, after its very careful reading shows that it is far away from any exaggeration. Her evidence would show that the victim is not having any tendency to falsely implicate anybody. The victim has given truthful version. If the victim was having any tendency to exaggerate or deposing falsely, she could have implicated accused Anil also that he has also committed rape on her. Evidence of the victim shows that the act of forcible sexual intercourse was done only by accused Vijay. The role attributed to accused Anil is that he facilitated accused Vijay to commit heinous act of committing forcible sexual intercourse on the victim against her will. On re-appreciation of evidence of the victim independently, I record a finding that her version is truthful. The role attributed to accused Anil is that he facilitated accused Vijay to commit heinous act of committing forcible sexual intercourse on the victim against her will. On re-appreciation of evidence of the victim independently, I record a finding that her version is truthful. She gives truthful account of what happened to her at the hands of both the accused and since her testimony is found to be away from improvements, barring one or two, which has no bearing in respect of the actual sexual assault on her, in my view, her solitary evidence is sufficient to record finding of guilt against both the accused persons. B. MEDICAL EVIDENCE 16. The victim was examined when she was referred by Police Station, Tamgaon at General Hospital, Khamgaon on 15.11.2004. On the said day, Dr. Rajesh Falke (PW-2) was the Medical Officer. He examined the victim girl. Evidence of Dr. Falke would show that there were no injuries over her thigh, buttocks, back and over breasts, however, he noticed two abrasions and one blunt injury and for that he issued her medical certificate (Exh.22). As per injury certificate (Exh.22), one abrasion of size 0.5 cm was found on the face above nasal portion of the victim and another abrasion of size 0.5 cm was found above upper lip. The victim was examined at 2.40 pm on 15.11.2004. The incident in question has occurred on 14.11.2004 in between 8.00-8.30 pm. According to document Exh.22, probable age of the injury was within 24 hours. In my view, these two abrasions are supportive to the version of the victim. 17. It was argued before this Court that in injury certificate (Exh.21), no injuries were found on thigh, buttocks, back and over breasts and therefore, the medical evidence is not supportive to the version of the victim. As observed in preceding paragraphs of this judgment, the victim herself has stated that she did not offer any resistance. If that be so, there cannot be any injuries on the private parts of the victim. 18. Much capital was made by the learned counsel for the appellants during course of their submissions on the basis of the findings recorded in Exh.21 by PW-2 Dr. If that be so, there cannot be any injuries on the private parts of the victim. 18. Much capital was made by the learned counsel for the appellants during course of their submissions on the basis of the findings recorded in Exh.21 by PW-2 Dr. Falke - (1) that brown colour bleeding from vagina may be menstrual blood and (2) hymen is torn at 3 0'clock and 9 O'clock position, however, the Doctor has not mentioned whether it was fresh or old one. 19. It is the submission of the learned counsel for the appellants that in the cross-examination the doctor has opined that it is true that definite opinion about the rape cannot be given and therefore, it is submitted that there took no rape. 20. Modi, in a Textbook of Medical Jurisprudence and Toxicology, 24th Edition, states that rape is a crime and not a medical diagnosis made by the Medical Officer while treating the victim. It is a charge made by the Investigating Officer on the complaint made by the victim. The law on the issue of appreciation of the evidence of medical expert is well settled in Pratap Mishra and Others vs. State of Orissa, (1977) AIR SC 1307. In paragraph 5 of the said report, the Hon'ble Apex Court has found that it is well settled that medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused. According to Exh.21, hymen of the victim was found to be torn at 3 O'clock and 9 O'clock position. It also shows that only index finger could be inserted. From this medical evidence, it is crystal clear that the victim was virgin. According to the learned counsel for the appellants, in cross-examination, the Doctor did state that due to leg stretching exercise, there is a chance of rupture in hymen. He also admitted that in some schools there are games or leg stretching exercise like high jump and long jump. They, therefore, submitted that due to this also there could be hymen torn as noticed by the Doctor. In my view, the aforesaid submission is required to be floored down. What was stated by the Doctor was general in nature. The victim was subjected to very lengthy cross- examination. They, therefore, submitted that due to this also there could be hymen torn as noticed by the Doctor. In my view, the aforesaid submission is required to be floored down. What was stated by the Doctor was general in nature. The victim was subjected to very lengthy cross- examination. Nothing was suggested to her that she used to do leg stretching exercise or she used to participate in the games like long jump or high jump. In absence of that, torn of her hymen cannot be attributed to such activities as sought to be suggested by the Doctor, by the learned cross-examiner. 21. No doubt true, in Exh.21 it is not stated by the Doctor that hymen was torn freshly, however, at the same time it is also not stated by the Doctor that it was old scar or it was old torn. On the contrary, her vaginal examination shows that her vagina was bleeding. Bleeding of vagina shows that torn must be fresh. 22. It is also the submission of the learned counsel for the appellants that the blood that was oozing from vagina was brown in colour and according to the Doctor, it may be menstrual blood. Insofar as the article of Jamie Eske, which was pointed out to the Court, in my view, is not of any help at all to the appellants, if the said article is read in its correct perspective. Further, the Doctor himself is not sure as to whether it was menstrual blood or blood from injury. Therefore, he has used phraseology "may be". Apart from that, only the victim could have the best witness and/or her version would have been most important if through her evidence it is brought on record that at the relevant time she was in menses. In absence of anything on record to show that she was in menses, this Court is not attaching any importance to the words used "blood may be of menstrual" in Exh.21, rather this Court positively record the finding that, that blood must be due to tear to her hymen. In that view of the matter, I have no hesitation in my mind that though, solitary version of the victim is sufficient in this case to record the finding of guilt even her version finds due corroboration from two documents, namely Exh.21 and Exh.22. C. ABOUT C.A. REPORTS 23. In that view of the matter, I have no hesitation in my mind that though, solitary version of the victim is sufficient in this case to record the finding of guilt even her version finds due corroboration from two documents, namely Exh.21 and Exh.22. C. ABOUT C.A. REPORTS 23. It was also the contention of the counsel for the appellants that in absence of scientific evidence on record, the Court should grant benefit of doubt in their favour. From the evidence of PW-4 PSI Mohod, it is clear that he sent the muddemal articles to the Chemical Analyser under requisition (Exh.13). It is also clear that the CA reports were not brought on record. 24. The scientific evidence in the nature of CA reports is always a corroborative piece of evidence. This piece of evidence can never take place of substantive evidence. When substantive evidence is available on record and is found to be trustworthy, merely because the CA reports were not brought on record, that does not render the prosecution case untrustworthy and/or that cannot be the ground for extending any benefit of doubt in favour of the accused. True that the prosecution ought to have taken steps to file on record the CA reports. Not bringing the CA reports on record is the lapse on the part of prosecution. However, for lapse of the prosecution, justice cannot become the victim. Justice cannot be denied to the victim girl for inaction on the part of prosecuting agency. D. ABOUT DEFENCE WITNESSES 25. Though, the learned counsel for the appellants did not make submission in respect of plea of alibi and they even did not read the version of the defence witnesses, this Court being the final Court for recording the facts, has gone through the version of four defence witnesses and their cross-examination. From their evidence, it is crystal clear that DW-3 Dnyaneshwar and DW-4 Sayyad Lukman are the got up witnesses. DW-1 is Dr. Pramod Rajotkar. His evidence would show that on 14.11.2004, one Sujita Bhaskar Wankhede came in Primary Health Center, Sonala along with accused Anil and she was having dysentery (loose motion). His evidence also does not inspire confidence since he could not point out the register, which is duly maintained in the hospital to show that Sujita was admitted in the hospital. His evidence would show that on 14.11.2004, one Sujita Bhaskar Wankhede came in Primary Health Center, Sonala along with accused Anil and she was having dysentery (loose motion). His evidence also does not inspire confidence since he could not point out the register, which is duly maintained in the hospital to show that Sujita was admitted in the hospital. The learned Judge of the trial Court, in my view, has rightly disbelieved the version of the defence witnesses, including the version of DW-2 Vishwanath, who tried to point out regarding the enmity between the father of the victim and others. E. ABOUT ACCUSED ANIL 26. According to the learned counsel for accused Anil, he has not committed rape. He, therefore, submitted that the sentence imposed on him similar to the sentence imposed on accused Vijay is harsh. 27. From the evidence of victim (PW-1) and her sister Diksha (PW-3), presence of accused Anil is with accused Vijay right from beginning. Not only that, right from beginning accused Anil participated actively to see that opportunity is given to Vijay to commit rape on victim girl. Active participation of accused Anil could be seen from the overt acts of holding the hands of victim, gagging her mouth, pushing her towards the place where ultimately Vijay committed rape on her. Not only that, even at the time of commission of rape, Anil was present there and at that time also he caught her hands and shut her mouth. These acts on the part of Anil show that he was sharing common intention with accused Vijay and not only that he is abetor in the crime. Had accused Anil was not sharing any common intention with accused Vijay, as a citizen of this country he would have resisted accused Vijay from indulging into heinous act of committing rape of a virgin girl. In my view, therefore, the Courts below has rightly awarded adequate punishment to him also. 28. Insofar as alternate submission of the learned counsel for the appellants is concerned, there is nothing on record to show that there was any compromise between the victim and accused persons. Even otherwise, in my view, importance cannot be given to the compromise in a heinous offence like rape. The Court below has awarded appropriate punishment to each accused. F. CONCLUSION 29. Even otherwise, in my view, importance cannot be given to the compromise in a heinous offence like rape. The Court below has awarded appropriate punishment to each accused. F. CONCLUSION 29. On re-appreciation of the entire prosecution case, there is no doubt in my mind that both the accused are liable for their conviction and sentence as awarded to them by the trial Court. Resultantly, both the appeals fail and hence the following order: ORDER (1) Criminal Appeal No. 618/2005 and Criminal Appeal No. 612/2005 are dismissed. (2) The conviction and sentence as awarded to the appellants by the judgment and order passed by the learned 1st Ad-hoc Additional Sessions Judge, Khamgaon in Sessions Case No. 06/2005 on 24.10.2005, is upheld. (3) Mr. Saurabh Singha, Advocate appointed in Criminal Appeal No. 618/2005 to represent the appellant is entitled to receive the professional fees, which is quantified at Rs. 5,000/- (Rupees Five thousand only) from the High Court Legal Services Sub-Committee, Nagpur. (4) The appellants-Vijay Tulshiram Bangar and Anil Sahadeo Wankhede are present in the Court. At this stage, Advocate Mr. Sirpurkar submits that one month's time be granted to appellant Anil to surrender to the bail bonds. Looking to the heinous nature of the offence, the prayer is rejected. (5) The appellants are taken into custody. They be sent to Central Prison, Nagpur to serve the remainder of their jail sentence.