Isabella Mariam

The High Court of Bombay at Nagpur Division Bench of Justice Nitin B. Suryawanshi and Justice M. W. Chandwani, has modified the convictions and sentences imposed by the Trial Court in a case involving multiple charges under the Indian Penal Code and the Information Technology Act. The Court acquitted one of the appellants due to lack of identification and set aside the conviction of three others under Section 326 IPC, altering it to Section 324 IPC. The remaining convictions and sentences were upheld. The Court directed that sentences run concurrently and ordered appropriate set-off for the period already undergone in custody.

The prosecution alleged that the prosecutrix, who had separated from her husband, was residing with a male companion in a rented house. Tensions began when two individuals visited her in his absence, questioned her for living with a person from another religion, and made unsolicited advances. Later, after a verbal altercation with a neighbour regarding the use of water, the situation escalated, leading to the involvement of other individuals who allegedly assaulted the victims and committed further offences.

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According to the prosecution, a confrontation occurred where one of the accused attempted to attack a male occupant of the house with an axe. Following the incident, a group forcefully entered the house, assaulted the victims, forced them to consume liquor, and allegedly compelled them into compromising situations while recording the acts on a mobile phone. They were then abducted, and the male victim was taken to a railway track and allegedly left to die. The prosecutrix was reportedly subjected to sexual assault by multiple individuals before being left near a school. She later approached the police and filed a complaint. The male victim also reached the police station after escaping and was treated for his injuries.

The investigation led to the registration of multiple charges under the IPC including Sections 376D, 366, 354A, 354B, 354C, 506-II, 307, 394, 212, and 201 read with 34, 109, 114, and 149, as well as Sections 66E, 67, and 67A of the Information Technology Act, 2000.

The prosecution examined 24 witnesses, and one of the appellants examined a witness in defence. Several articles including clothes, mobile phones, liquor bottles, and weapons were recovered and submitted. Medical evidence supported the claims of injury, though no direct medical proof of rape was established. DNA and chemical analysis confirmed the presence of bloodstains and alcohol in the samples.

Identification parades were conducted for some of the accused, and mobile phone data retrieved during forensic examination revealed images and videos allegedly depicting the victims in compromising positions. One mobile phone in particular was identified as containing the recorded videos, although a Section 65B certificate under the Evidence Act was not produced due to the accused’s control over the device.

The defence challenged the credibility of the prosecutrix and other prosecution witnesses, raising concerns over inconsistencies and procedural lapses. It was further argued that injuries were simple and did not meet the threshold under Section 326 IPC. The defence also contested the admissibility of electronic evidence in absence of the mandated certificate.

The Court observed that the utterance of the word used during the altercation did not amount to criminal intimidation. It stated in italicised form, “Utterance of the word ‘Bhadkhau’ by Maksud by no stretch of imagination is threatening so as to bring him under the gamut of criminal intimidation, that too punishable under Part-II of Section 506 of the IPC.”

The Bench examined the Test Identification Parade conducted for one of the accused and stated, “It will be difficult to rely on the version of the prosecutrix, who identified Siraj on the basis of guesswork.” The Court recorded that no prosecution witness had actually deposed to seeing this accused inside the room and concluded, “The benefit of doubt goes in favour of Siraj. Accordingly, we set aside the conviction... for the aforesaid offences.”

Regarding the conviction under Section 326 IPC, the Bench stated, “The purport of Clause VIII of Section 320 of the IPC is that hurt caused by the offender must endanger life and it does not depend on the condition of future complications.” It held, “The injuries caused to the person of Dinesh and Rakesh do not come under the ambit of grievous hurt/injury.” The Court therefore modified the conviction under Section 326 to Section 324 IPC.

Addressing the forensic and electronic evidence, the Bench accepted the admissibility of the CD contents without the certificate under Section 65B, citing impossibility of obtaining it from the accused. It relied on the matching hash value between the original and copied media. The Bench recorded, “The electronic record sought to be proved is against Wasim... Therefore, non-production of the certificate... will not be fatal to the case.”

The Court noted consistency in the versions of key witnesses and stated, “The versions of the prosecutrix, Rakesh and Dinesh corroborate with each-other and is also corroborated by other evidence including electronic evidence.”

The Court addressed concerns raised regarding procedural irregularities in the identification parade and stated, “Even if there are procedural lapses in conducting the TI Parade, the evidence of the prosecutrix, Dinesh and Rakesh cannot be doubted.”

The Bench held that common intention could be inferred from the coordinated conduct of the accused, recording, “Recording of pornography inside the room indicates sharing of common intention.”

The Court set aside the conviction of one of the appellants under Sections 450, 452, 326, 354B read with 34, 109, 114, and 149 of the IPC, holding that his presence inside the room was not proved beyond reasonable doubt. The Court directed that the conviction recorded by the Trial Court against the appellant was unsustainable and ordered that he be acquitted of those charges.

The Court set aside the conviction of three other appellants under Section 326 of the IPC and instead convicted them under Section 324 of the IPC. The Bench held that the ingredients of grievous hurt as defined under Section 320 were not satisfied and therefore the punishment under Section 326 could not be sustained.

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The Court maintained all other convictions and sentences recorded by the Trial Court against the remaining appellants under relevant provisions of the IPC and the Information Technology Act.

The Court directed that the sentences for each of the offences for which the appellants were convicted shall run concurrently. The Bench also ordered that the appellants be given the benefit of Section 428 of the Code of Criminal Procedure, allowing them to set off the period of incarceration already undergone against the sentence imposed.

The Court concluded by stating that the appeals were disposed of in the terms detailed in the judgment.

Advocates Representing the Parties

For the Petitioners: Shri R. K. Tiwari, Advocate; Shri Arjun V. Bobde along with Ms. Shubhangi Jadhao, Advocates; Shri R. R. Vyas, Advocate; Shri R. M. Daga, Advocate.

For the Respondents: Shri S. S. Doifode, Additional Public Prosecutor for the State.

Case Title: XXX v The State of Maharashtra

Neutral Citation: 2025:BHC-NAG:4873-DB

Case Number: Criminal Appeal Nos. 336/2016, 352/2016, 325/2016 & 346/2016

Bench: Justice Nitin B. Suryawanshi and Justice M. W. Chandwani

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