1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.268 OF 2008 1. Rajendra S/o.Prabhakar Bagul, Age-28 years, Occu-NIL, 2. Subhash Yashwant Bidkar, Age-27 years, Occu-Nil. Both R/o.Mandave Bk. Tq.Sangamner, Dist. Ahmednagar APPELLANTS VERSUS The State of Maharashtra RESPONDENT Mr.Z.M.Avhad, learned counsel for appellants. Mr.N.R.Shaikh, learned A.P.P. for respondent State WITH CRIMINAL APPEAL NO.337 OF 2010 The State of Maharashtra APPELLANT VERSUS 1. Rajendra S/o.Prabhakar Bagul, Age-27 years, Occu-NIL, 2. Subhash Yashwant Bidkar, Age-20 years, Occu-Nil. Both R/o.Mandave Bk. Tq.Sangamner, Dist. Ahmednagar RESPONDENTS Mr.N.R.Shaikh, learned A.P.P. for appellant/State 2 Mr.Z.M.Avhad, learned counsel for the respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 21/10/2010 ORAL JUDGMENT : ((Per P.V.Hardas, J.) 1. Cri.Appeal No.268/2008 has been filed by appellants accused, who stand convicted for an offence punishable u/s. 376(2)(g) of The IPC and sentenced to suffer RI for seven years and to pay fine in the sum of Rs.1,000/- each, i.d. to undergo further RI for 1 year and also convicted for an offence punishable u/s. 366-A r/w. 34 of The IPC, and sentenced to suffer RI for four years and to pay fine in the sum of Rs.1,000/- each, i.d. to undergo further RI for one year each, with a direction that the substantive sentence would run con-currently, by the Additional Sessions Judge, Sangamner, vide judgment dated 09/05/2008, in Sessions Case No.37/2007, have challenged their conviction and sentence by this appeal. 2. Cri.Appeal No.337/2010 has been filed by the State, seeking enhancement of the sentence of RI of 7 years awarded to the respondents for an offence punishable u/s. 376(2)(g) of The IPC. 3. Since both these appeals arise from the same judgment of the Trial Court, both these appeals are being decided by this common judgment. 3 4. P.W.No.8 P.S.I. Sunil Manik Bacchav, who was attached to the Sangamner Taluka Police Station, had recorded the complaint of P.W.No.1 Rupali on 19/05/2007 at Exh.23. On the basis of the aforesaid complaint, offence vide Crime No.167/2007 came to be registered. The victim of rape namely Rupali, P.W.No.1 was referred to the Cottage Hospital, Sangamner for medical examination alongwith the requisition at Exh.37. It appears that P.W.No.1 Rupali was examined by P.W.No.6 Dr.Sandip Kachoriya. Upon examination of P.W.No.1 Rupali, he found that the axillary hair of light brown colour with pubic hair sparse, delicate, brownish black in colour. The breasts were found to be developing with no milk secretion being noted. He did not notice any injuries on the breasts, cheek, and thighs. He found the following external injuries : 1. Small CLW over right forearm under border size 1 x 1/2 inches within 2 days and caused by hard and blunt object. 2. Abrasion on low back dark red 2 x 1 cm, within 2-3 days and caused to hard and blunt object. 3. CLW over left foot toe at thumb base 2 x 1/2 x 1/2 cm. duration within 2-3 days and caused due to hard and blunt object. He also noticed that the undergarments of P.W.No.1 Rupali had been changed and therefore no stains were noticed on the undergarments. Labia majora and labia minora were developing. Hymen was found ruptured with lacerated edges allowing insertion of one finger painfully. Slight stains of blood were noted on vaginal swab. The Medical Officer accordingly issued the certificate at Exh.38. P.W.No. 4 8 P.S.I. Bacchav, thereafter proceeded to the scene of the offence and drew the scene of the offence panchnama in the presence of P.W.No.3 Ramesh Narayan Teli at Exh.29. The undergarments of P.W.No.1 Rupali came to be seized in the presence of panchas, on being produced by P.W.No.1 Rupali, at Exh.30. P.W.No.8 P.S.I. Bacchav thereafter recorded the statements of witnesses and added section 363 of The IPC. On 21/05/2007, Head Constable Shri.Khan arrested both the accused at Sangamner and both the accused were referred for medical examination and were examined by P.W.No.7 Dr.Laxman Gadekar. He did not notice any injuries and found the secondary sexual character to be fully developed. The report of the examination of the accused is at Exh.44 and 45. On 24/05/2007, the motorcycle, alleged to have been used by the accused in the commission of the offence, came to be seized under a panchnama at Exh.21. The clothes on the person of the accused also came to be seized on the same day under the seizure memo at Exh.24. On account of transfer of P.W.No.8, P.S.I. Bacchav, the investigation thereafter came to be handed over to P.W.No.9 P.S.I. Bhimrao Darade. P.W.No.9 P.S.I. Darade who was also attached to the Sangamner Taluka Police Station, took over the investigation from P.W.No.8 Mr.Bacchav on 25/05/2007. He obtained the blood samples of the accused for examination by the Chemical Analyser and referred the seized property to the Chemical Analyser alongwith the requisition at Exh.52. Since fresh blood samples were required by the Chemical Analyser, fresh blood samples were obtained and were forwarded to the Chemical Analyser alongwith the requisition at Exh.54. A letter 5 dated 22/07/2007 was addressed to the Tahsildar for drawing the sketch of the scene of the offence. The said letter is at Exh.55. Accordingly, P.W.No.4 Dattatraya Bhikaji Shinde drew the sketch of the scene of the offence at Exh.32. Upon completion of the investigation, a charge sheet was submitted against the accused. 5. On committal of the case to Court of Sessions, Trial Court, vide Exh.14, framed charge against the accused for offences punishable u/s. 376(2)(g) and 366(A) of The IPC. The accused abjured their guilt and claimed to be tried. Prosecution, in support of its case, examined 9 witnesses. The main plank of the prosecution case is the testimony of P.W.No.1, the victim of rape, and P.W.5 Asha, her mother. The prosecution also derives support from the testimony of P.W.No.6 Dr.Kachoriya. In respect of age of the victim, the prosecution has examined P.W.No.2 Chandrabhaga Nivrutti Jadhav, the Head Mistress of the school where the prosecutrix P.W.No.1 Rupali was studying. According to the prosecution, the age of the prosecutrix was 13 years and some months i.e. less than 16 years. 6. The Trial Court, upon consideration of the prosecution evidence, found both the accused guilty of offences punishable u/s. 376(2)(g) and 366(A) of The IPC and accordingly convicted and sentenced them. According to the Trial Court, because of the age of the victim of rape P.W.No.1 Rupali was below 16 years age, and in the light of the fact that the prosecutrix was a consenting party to the sexual intercourse, the Trial Court awarded the sentence of 7 years 6 i.e. less than the minimum sentence prescribed by the Statute. The State, being thus aggrieved by the in-adequate sentence, i.e. awarding of the sentence less than the minimum, has filed the appeal for enhancement of the sentence, and the accused, being aggrieved by the sentence of RI for 7 years, has filed an appeal challenging the aforesaid sentence. 7. In order to effectively deal with the submissions advanced before us by the learned counsels for the parties, it would be appropriate first to examine the status of the victim of rape and the extent of corroboration, if any, required to the testimony of the prosecutrix. A reference, at this juncture, may usefully be made to the judgment of the Supreme Court in State of Punjab Versus Gurmit Singh and others, AIR 1996, SC 1393. The Supreme Court in the said judgment at para no.7 has held that, "The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to the most natural. The trial Court over-looked that a girl, in a tradition bound non permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being 7 conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one else at the examination centre prior thereto is an accord with the natural human conduct of a female. The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies. in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal 8 outrage of sexual aggression are factors which the Courts should not over look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. 9 8. The Supreme Court in Bharwada Bhoginbhai Hirjibhai versus State of Gujarat, AIR 1983, SC 753, at paras no.7 and 9 has held that, "Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should be evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelieve or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the arguments in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissible values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the 10 Indian society and its profile. The identities of the two worlds are different. The solution of problems can not therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as : (1) The female may be a 'gold digger' and may well have an economic motive - to extract money by holding out the gun of prosecution or public exposure. (2) She may be suffering from psychological neurosis and may see an escape from the neurotic prison by phatasizing or imagining a situation where she is desired, wanted, and chased by males. (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account. (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self- importance in the context of her inferiority complex. (6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed. 11 9. A reference at this juncture may also be made to the judgment of the Supreme Court in State of Maharashtra Versus Chandraprakash Kewalchand Jain, AIR 1990 SC 658, in which Supreme Court has held that, "A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S.118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. It is the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The 12 nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each cash. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Therefore, ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. Ordinarily the evidence of a prosecution must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. " 10. The learned A.P.P. has relied upon the judgment of the Supreme Court in Bhupinder Sharma versus State of Himachal Pradesh, 2004 Cri.L.J. 1. The Supreme Court, in the said judgment has held that, "To insist on corroboration except in the rarest of rare 13 cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her chain of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime." 11. The victim of rape P.W.No.1 Rupali has very courageously stated about the sexual assault on her. She states that she was studying in the 7th standard in Burhanagar Maneshwar Madhyamik Vidyalaya. She gives her age as 13 years. She states that prior to the residing at Burhanagar, she was residing at village Mandve Phata, Tal. Sangamner. She states that her father was running a barber's shop at Mandve phata. She states that she used to often carry his lunch and had seen the accused on some occasion in the shop of her father. She states that since her father was employed as a barber for army personnel, they shifted to Ahmednagar. She has stated that her uncle Babasaheb Kute has his farm house at village Mandve Bk. where his uncle resides alongwith his family. She states that on 15/05/2007, the appellants accused and one more person had come to village Mandve on a motorcycle. Her aunt questioned them as to why they had come. Thereupon they informed the aunt of P.W.No.1 Rupali that they had come casually and thereafter they had left. Again on the next day i.e. on 16/05/2007, at about 7.00 p.m., both the accused had come to the house of her uncle at village Mandve. Her aunt had sent the watchman Munnasing to the market 14 and she and her aunt were in the house. Munnasingh, the servant, came to the field and thereafter went to milk the cattle. P.W.No.1 Rupali states that she asked the accused the purpose of their visit as she was playing near the gate. The accused called her near them and when Rupali went near them, accused Raju gagged her mouth and placed her on the motorcycle and then took her to the field of Ginni grass, i.e. the grass which grows in bushes and which is used as fodder. According to Rupali, they made her lie on back and tied her hands and mouth and removed her clothes. Accused Raju thereupon denuded himself and committed forcible rape on Rupali. Thereafter he gave a call to accused Subhash, who also committed rape on Rupali. The accused then threatened her that in the event she disclosed the fact to anyone, they would also commit rape on her elder sister. Rupali, on account of threats, was frightened and thereafter returned home. Her aunt questioned her as to where she had gone and she had replied that she had gone out. According to Rupali, she did not partake any food as she was feeling some dis- comfort. She informed her aunt that she may allow her to go to her mother and on next day, her aunt telephoned her cousin Santosh. She states that she went to her mother's place alongwith her cousin Santosh and then narrated the incident to her mother. She informed her mother that she was experiencing pain and thereafter her mother narrated the incident to her father and the father in turn, informed her uncle at Pune. Her uncle called them at Mandve and thereafter a complaint came to be lodged at the Sangamner Taluka Police Station. She has identified her signature on the complaint at 15 Exh.23. 12. In cross examination, she has admitted that population of village Mandve about 4,000 to 5,000. She has also admitted about the existence of the road near the northern side gate. She has also admitted the existence of another big gate towards the western side. She has admitted that there is a cattle shed and beyond the cattle shed, there are 2-3 houses. She has admitted that house of one Ramesh Teli is situated at a short distance from the gate. She has admitted that the ginny grass is visible from the gate, and adjacent to the ginny grass, there is a pathway for reaching her house. She has admitted that she does not know the full names of accused, but has admitted that she knows about the family of accused Bagul. She has admitted that accused no.1 has 3 brothers, but could not state if brother of accused no.1 was serving in the Police Department and also could not state if accused Subhash was also serving in the Police Department. She has admitted the fact as to true that sister of accused no.1 is a practicing advocate. She has admitted that family of accused no.1 is well educated. She could not state if the parents and brother of accused no.1 were residing at Mandgaon cross road in their agricultural lands. Omissions have been brought on record in the cross examination of the prosecutrix P.W.No.1 Rupali. She has admitted to have stated in her report that accused Raju gagged her mouth and placed her on the motor-cycle and then they took her in the ginny grass and then they tied her mouth and hands and removed her clothes. She has admitted that she could not state as 16 to why reference to both the accused tying her hands and mouth was not stated in the FIR. The omission is only in respect of 'both the accused'. There is no omission in respect of tying of her hands and gagging her mouth. She has admitted to have stated in the report that the accused threatened to rape her elder sister in the event she disclosed the incident to anyone. She could not explain as to why it was not reflected in respect of both the accused in her police statement. The omission is in respect of the threats being administered by 'both the accused'. She has admitted to have stated in her report that she did not partake food as she was experiencing some dis-comfort. She has also admitted to have stated in her statement that she told her aunt that she wants to go to her mother's place. She has admitted to have stated in her report that on the next day her aunt telephoned and called her cousin Santosh. She has admitted to have stated that she had informed her mother that she was experiencing pain. She, however, could not explain as to why her report did not contain the aforesaid statement. Thus what is proved as omission in her cross examination is that she had told her aunt that she wants to visit her mother and that her aunt had telephoned and called her cousin Santosh. Omission has been duly proved that she has not informed her aunt that she was experiencing pain. These omissions, according to us are not on any vital aspect of