Partly allowed

Suresh @ Tatya Parshuram Powar v. the State of Maharashtra and Anr.

Bombay HC24 Feb 2022APEAL/533/2012

Case brief

AI extract

What is this about?

The High Court held that appellants committed rape as individual acts rather than gang rape. Conviction under Section 376 IPC was maintained with seven years rigorous imprisonment. Compensation of five lakhs awarded to the victim.

What did the court decide?

Conviction under 376 IPC maintained; 7 years rigorous imprisonment ordered; compensation of Rs. 5,00,000 awarded; appeal by State dismissed.

Suresh @ Tatya Parshuram Powar Vs the State of Maharashtra and Anr. — Bombay HC (2022) — LawSathi Research

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Digitally signed by PALLAVI PALLAVI MAHENDRA MAHENDRA WARGAONKAR WARGAONKAR Date: 2022.02.24 16:27:33 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.533 OF 2012

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WITH

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CRIMINAL APPLICATION NO.1244 OF 2012

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1) Suresh @ Tatya Parshuram Powar Age – 42 years, Occu.: Iron Smith, R/a – 869, C Ward, Behind Uma Talkies, Appellant/Applicant Kolhapur. … (Orig. Accused No.1)

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V/s.

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1) The State of Maharashtra (Through Police Station Officer,

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Kodoli Police Station, Kolhapur)

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2) Kum. Madhuri Popat Bansode,
 C/o. Raju Sutar, R/o. Malwadi Nagaon,
 Tal. - Hatkanangale,

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 Dist. - Kolhapur.

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…Respondents

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WITH

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CRIMINAL APPEAL NO.556 OF 2012

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 Vishwanath Ramesh Shetti

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 Age – 21 years, Occu.: Labour,
 R/a – Hotel Raj Permit Room,
 Bakari Bazar, Laxmipuri, Kolhapur
 Originally R/a – Ligade Mala,
 Ichalkaranji, Tal – Hatkanangale.

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…Appellant
(Orig. Accused No.2)

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V/s.

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 The State Of Maharashtra
 (Through Police Station Officer,
 Kodoli Police Station, Kolhapur).…Respondent

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WITH CRIMINAL APPEAL NO. 672 OF 2012

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The State of Maharashtra…Appellant
(Through Police Station Officer,
Kodoli Police Station, Kolhapur)

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V/s.

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1) Suresh @ Tatya Parshram Powar,
 Age – 42 years, Occu.: Iron Smith,
 R/a – 869, C Ward, Behind Uma Talkies,
 Kolhapur.

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2) Vishwanath Ramesh Shetti,
 Age – 21 years, Occu.: Labour,
 R/a – Hotel Raj Permit Room,

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 Bakari Bazar, Laxmipuri, Kolhapur
 Originally R/a – Ligade Mala,

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 Ichalkaranji, Tal – Hatkanangale.

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3) Kishor @ Bapu Jagannath Sathe (Abated)

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 Age – 24 years, Occu. : Labour,

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 R/a – Behind S.T. Stand, Kodoli,…Respondents
 Taluka – Panhala, Dist – Kolhapur. (Orig. Accused Nos.1
to 3)

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Shri. S.A. Ingawale, Advocate for the Appellant in Apeal/533/2012
and in Appa/1244/2012 for Applicant.

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Shri. Omkar G. Nagwekar, Advocate for the Appellant in
Appeal/556/2012.

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Ms. Vrushali Maindad Appointed Advocate for Respondent No.2 –
complainant in Apeal/533/2012.

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Ms. Veera Shinde, APP for Respondent – State.

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CORAM:SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
JUDGMENT RESERVED ON :8th DECEMBER, 2021.
JUDGMENT PRONOUNCED ON:24th FEBRUARY, 2022.

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JUDGMENT : (Per Sadhana S. Jadhav, J.)

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CRIMINAL APPEAL NO.533 OF 2012 and CRIMINAL APPEAL NO.556 OF 2012 :

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1.The appellants in these appeals have impugned the
judgment and order dated 5th March 2012 passed by the learned
Additional Sessions Judge, Kolhapur in Sessions Case No.42 of 2009.
The appellants/accused No. 1 and accused No. 2 are convicted for the
offence punishable under section 376(2)(g) of Indian Penal Code
1983 (earlier Act) and sentenced to suffer rigorous imprisonment for
seven years each and to pay fine of Rs. 5,000/- each I.d. to undergo
simple imprisonment for 3 months. The appellant/accused No. 3 is
convicted of the offence punishable under section 376 of the Indian
Penal Code and sentenced to suffer rigorous imprisonment for 5 years
and to pay fine of Rs. 5,000/- I.d. to undergo simple imprisonment for
3 months. Hence, these appeals.

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2.Such of the facts necessary for the decision of these appeals
are as follows :-

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(i)On 16th November 2008, Ms. ‘X’ approached Kodoli Police

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Station on 22nd November 2008 and lodged a report alleging therein
that on 15th November 2008 her parents had scolded her as she used to
remain outdoors till late night and therefore, on 15th November 2008
she left her house without informing the family members. When she
reached Nagaon Phata, she met Shivraj Jagtap who was acquainted
with the family. She requested him to drop her at Kolhapur. Mr. Jagtap
had obliged and dropped her at S.T. Terminal at Kolhapur. She had
been to the temple to offer prayers. Thereafter, she met one boy viz.
Rahul Patil, who proposed marriage with her. She was persuaded to
accept the proposal of marriage, which she did. He had taken her to
Dilbahar Lodge. Rahul had asked her to be in the company of his
friend Tatya and had left their company. His friend Tatya had ravished
her against her will. Thereafter, Rahul had also ravished her against
her will. He had left the room with a promise that he would return
soon. Ms.X waited at the lodge till 7.00 am. She then proceeded to
Shiroli and from there to Vadgaon. From there they had been to a
Gymkhana where she met Bapu Gaikwad who also ravished her
against her will. She was forced to stay in Gym.
(ii) On 22nd November 2008, she was apprehended by the
Police. On the basis of the said report Crime No.122 of 2008 was

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registered against the accused for the offence punishable under section
376(2)(g) r/w 34 of IPC.

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(iii)At the trial, the prosecution has examined as many as 9
witnesses to bring home the guilt of the accused.

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3.P.W.1 is the victim. According to her, on 15th November
2008 since she had a quarrel with her parents she left the house.
Investigation was completed and charge sheet was filed. She has
deposed as per her FIR and has proved the contents of the FIR.
According to her, the accused no.3 had disclosed his name as Kishor @
Bapu Sathe and that he had a family to look after. Accused no.3 is
alleged to have taken the victim near the Kodoli Canal at about 11.00
pm. When she was trying to escape from the clutches of accused no.3
she had sustained injury to her right leg. She was taken to a house
which was occupied by a couple Swati and Suresh. She was forced to
have sexual intercourse with accused no.3 under threat and coercion.
On the very next day, she had escaped from the clutches of accused
no.3, approached the police station and lodged a report. She was
unable to state her date of birth before the Court. Her date of birth is
26th September 1993 as per School Leaving Certificate.

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4.In the cross-examination, the victim has admitted that
there was no quarrel between her and her parents. According to her,
she had met accused no.3 at Kodoli Phata at about 9.30 pm. There are
inherent omissions and contradictions in the evidence of the
prosecutrix which are brought to her notice. A question was put to her
as to whether she had disclosed before the Police that she met accused
No.3 - Sathe at Pargaon Bus Stand and he had taken her to his house
where he was staying along with his wife and a small child. He was
making her run along with him. The said house was occupied by Swati
and Suresh and on that night, she was tortured by accused No.3 and
coerced her to have intercourse. According to her, she had stated all
the said facts. However, upon perusal of her statement it appears that
it is rather omission.

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5.On the day she lodged the FIR, she was referred for
medical examination and her medical examination report is at Exh.18
which shows that she had previous scar of wound on her right knee
joint, scar of previous wound on the right forearm above elbow,
abrasion over inner aspect of both thighs. It is further opined that she
was habituated to sexual intercourse. It is pertinent to note that on the
day her evidence was recorded she was presented before the Court

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from the mental hospital at Pune but the Court has observed that she
had the ability to understand the questions put to her and the
consequences of its answers. A suggestion was put to her in her cross-
examination as to whether she was in love with Rahul Lambe and she
had expressed annoyance and displeasure at the said question. In the
cross-examination, she had stated that she was taken to Dilbahar
Lodge by accused no.2 – Vishwanath Shetty. It is further pertinent to
note in the FIR that she had stated that she was taken to Dilbahar
Lodge by Rahul Patil wherein she was ravished by accused no.1.
Thereafter, she was ravished by Rahul Patil whereas it appears that the
real name of Rahul Patil was Vishwanath Shetty i.e. original accused
no.2. It is further pertinent to note that there is no reference to
Dilbahar Lodge where she was ravished by accused nos.1 and 2 and
instead reference is to Ambai Lodge.

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6.P.W.6 – Bandu Hari More, who was working at Ambai
Lodge is declared hostile.

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7.In the meanwhile, a missing complaint was lodged by the
father of the complainant wherein it was stated that she was
differently-abled i.e. her cognitive ability was low and she was

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disoriented.

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8.P.W.2 – Popat Akaram Bansode happens to be the father of
P.W.1. He has deposed before the Court that two years prior to the
incident she had an accidental fall while playing volleyball and
therefore, she had sustained injury to her head and hence, she was
having psychological problems. She was treated at CPR Hospital,
Kolhapur but she did not respond to the treatment. She was also
treated at the hospital at Ratnagiri and after she was cured she was
residing with her parents. According to P.W.2, on 15th November 2008,
when he was about to proceed on duty at about 10.30 pm, he had
warned P.W.1 not to leave the house but help her mother. She was
missing in the night. Upon enquiry, her mother had disclosed that she
must have gone to her maternal uncle’s house. He had enquired with
the relatives but to no avail and therefore, he had lodged a missing
report with Shiroli, MIDC.

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9.On 22nd November 2008, when he was returning from
Nipani, he was informed by his wife that P.W.1 has been traced by the
Police and that he should visit Kodoli Police Station. When he reached
the Police Station, he saw that accused no.3 was already apprehended

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by the police. Upon enquiry, P.W.1 had disclosed to P.W.2 that she was
taken to Ambai Lodge by accused nos.1 and 2 who ravished her.
Accused no.2 had promised her that he would visit again on the next
day but he did not turn up. She disclosed to him that when she was in
S.T. Bus she had seen P.W.2 and his wife but she was in the company of
the accused nos.1 and 2. She was then taken to Kodoli to a Gymkhana
(Talim) and was ravished by accused no.2. It is elicited in the cross-
examination that she was staying with her maternal uncle till 7th
Standard at Pargaon. Her maternal uncle had also asked P.W.2 to keep
a watch on her. P.W.2 had admitted her in Ashram School at Pachgaon.
At the request of the Headmaster, he had to take Madhuri home. There
was a complaint that she used to loiter here and there instead of
attending school. It is further pertinent to note that from Kodoli Police
Station, the victim was not taken home. On the next day of lodging of
FIR, he had taken his daughter to his house. She was brought to the
Police Station by P.W.4 – Rajendra Ekkal who was officiating as Police
Constable at Kodoli Police Station. He had received a call from API
Shinde that the girl missing from Shiroli MIDC jurisdiction was
standing at the bus-stand at Shiroli. He found P.W.1 standing at the
Chawdi Square. After verifying her identification as per the missing

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report, she was brought to the Shiroli Police Station. Thereafter, API
Shahaji Shinde had instructed two police constables to bring Bapu
Gaikwad. She identified him at the Police Station and thereafter, he
was arrested. At the time of arrest, accused no.3 Bapu Gaikwad has
disclosed his real name as Kishor @ Bapu Jagannath Sathe.

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10.P.W.5 – Sanjay Patil has deposed before the Court that on
15th November 2008 at about 7.30 to 8.00 pm he had met his friend
Rahul Lambe who was in the company of one girl. They had requested
him to drop them at Nagaon Phata. Rahul had dissociated them at
Nagaon Phata whereas the said girl had requested him to drop at
Kolhapur. He dropped her at Central bus-stand, Kolhapur. He could
identify her by face that she hailed from Nagaon village but did not
know her name.

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11.P.W.9 – Shahaji Shinde is the investigating officer.
According to him, after hearing saga of the complainant he suspected
that it could be Bapu Gaikwad and therefore, he asked the police to
bring Bapu Gaikwad to the Police Station. He was identified by the
victim and therefore, arrested. It is pertinent to note that he has not
deposed before the Court that the real name of Bapu Gaikwad was

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Kishor @ Bapu Jagannath Sathe – accused no.3.

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12.On 23rd November 2008, he had searched for accused no.1
with the help of complainant. She identified him and therefore, he was
arrested whereas accused no.2 was arrested from Hotel Raj where he
was working. On 24th November 2008, the complainant was referred to
CPR Hospital for being examined by a psychologist. No enquiry was
made at Hotel Raj Permit Room in order to verify his working hours.
The accused were also medically examined on 24th November 2008.
There were no signs of external injury.

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13.With the help of the learned counsel for the appellants and
the learned APP, we have meticulously perused the evidence adduced
by the prosecution and the following facts would emerge :-

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(I)That, P.W.5 Sanjay had seen the victim proceeding on the
motorcycle with Rahul Lambe and he had dropped them at Nagaon
Phata. However, the same does not find place in the substantive
evidence of P.W.1. It is her contention before the Court that she had
walked upto Nagaon. A motorcyclist had dropped her at Ambai Lodge
at Kolhapur;

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(II)That, her father had lodged a missing complaint in which it
was specifically stated that his daughter was differently-abled;

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(III)In the FIR, there is no reference to Ambai Lodge but there
is a reference to Dilbahar Lodge. Hence, there is an apparent change in
the scene of offence;

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(IV)The informant without giving description of the person
who had ravished her had named her molester as Bapu Gaikwad;

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(V)P.W.9 had directed constables to produce the person so
named. The person who was produced before P.W.1 at the Police
Station was in fact, Kishor @ Bapu Jaganath Sathe who is originally
accused no.3;

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(VI)Accused no.2 was arrested from Hotel Raj Permit Room on
the next day;

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(VII)This could be a case of mistaken identity. It was incumbent
upon the police to hold Test Identification Parade;

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14.It is further seen that at the instance of P.W.1 accused no.1
was arrested. She named him as Rahul Patil whereas his real name is
Vishwanath Shetty i.e. original accused no.2. It is not the case of the
victim that the accused had disclosed their names to her as Rahul Patil
or Bapu Gaikwad. Neither it is her case that she had heard them calling

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each other by the said names. In fact, her evidence would show that
Rahul Patil proposed to marry her. She had not seen Rahul and Tatya
coming together or inviting each other. She had met Bapu Gaikwad in
the Gymkhana independently. That, since the act of accused No. 3 was
done independently, it cannot be said to be the case under section
376(2)(g) of the Indian Penal Code.

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15.Charge was framed for the offence punishable under
section 376(2)(g) which reads thus :-

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“376. Punishment for rape. - (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

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Provided that the court may, for adequate and
special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years.

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(2) Whoever, -

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(a) …………………..
(b) ……………………..
(c)…………………….
(d)…………………….
(e)…………………….
(f)…………………….
(g)commits gang rape,

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shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be for
life and shall also be liable to fine:

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Provided that the Court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term of
less ten years.”

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16P.W. 1 has deposed before the Court that she was asked by
Rahul Patil to be in the company of his friend Tatya and thereafter,
Rahul Patil had disassociated with them. This would show that the
accused Nos.1 and 2 were acquainted with each other and the victim
was sexually abused by accused Nos.1 and 2. This would in all
probabilities show the meeting of minds between the accused Nos.1
and 2, and therefore, the learned Sessions Judge had convicted
accused Nos.1 and 2 under section 376(2)(g) of the Indian Penal Code.
However, it cannot be said that they belong to the same group.
Explanation 1 to section 376(2)(g) of IPC reads as follows :

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“Explanation 1- where a woman is raped by one or more in
a group of persons acting in furtherance of their common
intention, each of the person shall be deemed to have
committed gang rape within the meaning of this sub-
section.”

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In the facts of the present case, it can be said that accused Nos. 1 and 2

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may have been acquainted with each other. However, there is nothing
on record to show that they had approached the victim together or that

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the accused No.2 had knowledge that the accused No.1 would take
undue advantage with the victim girl. Neither there is anything on
record to show that they had aided, assisted or instigated each other to
molest P.W. 1. Therefore, their act of ravishing the victim ought to be
considered as an individual act of each of accused. The question
whether she had given the description of the accused to P.W. 9 in such
a manner that he would be able to direct the constable to apprehend
the accused No.1 is still a matter of doubt, but the accused No.2 was
apprehended at her instance. However, the fact that the moment they
were brought to the police station she identified them as her molesters
is sufficient to hold that there was no loss of memory and the accused
were arrested in less than 48 hours. In every case, the investigating
agency need not bring on record the reason for suspecting the
complicity of a person before he is called for an enquiry. Lacunas in the
investigation in each and every case would not entitle an accused to
acquittal.

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17.The appeal stands abated as against accused No.3, as he
has expired. A report was called from Central Prison, Kolhapur and it is
reported that accused no.1 - Suresh @ Tatya Parshuram Powar was
released from the prison on 26th February 2015 after having undergone

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substantive sentence. Similarly, accused no.2 – Vishwanath Ramesh
Shetti was released from prison on 20th February 2015 after completing
substantive sentence. The judgment of the trial court convicting the
appellants for the offence punishable under section 376 of the Indian
Penal Code calls for no interference.

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18.For the reasons discussed hereinabove, the appeals deserve
to be partly allowed.

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CRIMINAL APPEAL 672 OF 2012:

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19.Being aggrieved by the judgment and order, the State has
filed this appeal for enhancement of sentence under section 376(2)(g)
Indian Penal Code as the minimum sentence prescribed under section
376(2)(g) of the Indian Penal Code is “not less than 10 years and may
extend to rigorous imprisonment for life”. Similarly, the sentence
inflicted upon the original accused No.3 is disproportionate to the
offence committed.

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20.The learned APP has submitted that the prosecution has
proved the case against the accused. That, they are arrested on the
basis of suspicion. That the complainant had a poor understanding. It
is submitted that the evidence of the victim/ complainant would not

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inspire the confidence as it is not trustworthy. The accused in the
present case have taken undue advantage of the poor cognitive ability
of the victim and have waylaid her and have ravished her. That, the
learned Sessions Judge had rightly convicted the appellants for the
offence punishable under section 376(2)(g) of the Indian Penal Code
and therefore, well reasoned the judgment of the Sessions Judge calls
for no interference.

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21It is the further contention of the learned APP that the trial
Court has convicted the accused Nos.1 and 2 for the offence
punishable under section 376 (2)(g) of the Indian Penal Code for
which the minimum sentence prescribed is 10 years and therefore, the
sentence inflicted upon the accused/respondents is disproportionate to
the act committed by them.

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22With the help of learned APP and the learned Counsel for
the respondents, we have meticulously gone through the records, more
particularly, the evidence of the victim. In Criminal Appeal Nos. 533
and 556 of 2012, we have arrived at a conclusion that the evidence
adduced by the prosecution does not in any way indicate that the
offence committed by the accused falls under section 376(2)(g) of the

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Indian Penal Code. That, they are convicted for their individual acts of
sexually abusing the victim and therefore, their act is covered under
section 376 of the Indian Penal Code. In view of this finding, it cannot
be said that the sentence inflicted upon the accused is disproportionate
to the offence committed. They are sentenced to 7 years rigorous
imprisonment, which the accused/appellants have undergone. Hence,
the appeal filed by the State seeking enhancement of the sentence
deserves to be dismissed.

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23.The Court had appointed the learned counsel Ms. Vrushali
Maindad to espouse the cause of the complainant. She has rightly
submitted that the victim in the present case needs care and
protection. She deserves compensation in order to enable her to take
proper treatment. It is submitted that the victim has a long life ahead
and therefore, she is entitled to the compensation as per the guidelines
in the case of Nipun Saxena v/s. Union of India (Writ Petition (C) No.
565 of 2012).

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24.The learned counsel Ms. Vrushali Maindad has assisted us
to the best of her capacity and hence, she is entitled to the professional
fees as per Rules.

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25.Hence, following order is passed.

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ORDER

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(i) Criminal Appeal No.533 of 2012 and Criminal Appeal No.556 of 2012 are partly allowed;

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(ii) The conviction and sentence imposed upon the accused - appellants passed by the learned Additional Sessions Judge, Kolhapur in Sessions Case No.42 of 2009 vide judgment and order dated 5^th March 2012 under section 376(2)(g) of the Indian Penal Code is set aside;

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(iii) The appellants are convicted for offence punishable under section 376 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for 7 years. Fine amount is maintained;

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(iv) Appellants – Accused have undergone the sentence imposed upon them;

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(v) The District Legal Services Authority, Kolhapur shall pay to the victim an amount of Rs.5,00,000/- (Rupees Five Lakhs only) towards compensation. Copy of this judgment be sent to the office of the District Legal Services Authority, Kolhapur. Compensation be paid to the victim within a

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