1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 106 OF 2006 THE STATE OF MAHARASHTRA .. .. APPELLANT Vs. ROHAN PUSHPRAJ FANASGAONKAR .. RESPONDENT W I T H WRIT PETITION NO. 1080 OF 2007 SOU. VASUDHA VASANT DESHPANDE Age 60 years, Occ.: Pensioner ) R/o 2137, Vijay Nagar Colony ) Sadashiv Peth, Pune – 30 ) .. PETITIONER Versus 1. Rohan Pushparaj Fanasgaonkar ) R/o Silij Apartment, Flat No. 904, ) Sahkarnagar, Pune. ) 2. The State of Maharashtra ) .. RESPONDENTS Mr. H. J. Dedhia , APP for State-appellant and for R-2 in W.P. No. 1080/2007 2 Mr. Ganesh Gole for the respondent in appeal & for R-1 in the writ petition. Mr. S.P. Kadam for the petitioner. CORAM:-SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 9th FEBRUARY, 2010. DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 7TH MAY, 2010 JUDGMENT:-(Per Smt. Ranjana Desai, J.) The present appeal and the writ petition can be disposed of by a common order because the facts involved in them are the same and they arise out of the same judgment and order. 2. The respondent in Criminal Appeal No. 106 of 2006 (“the accused”) was tried in the Court of Sessions Judge, Pune, in Sessions Case No. 426 of 2004 for offences punishable under Sections 302 and 376 of the Indian Penal Code (“IPC”) for having raped and murdered one Sonali Vasant Deshpande by strangulating her on 27/7/04 at about 3-30 to 3-45 p.m. in Room No. 9 at Ashoka hotel at Lonavala. By judgment and order dated 28/7/2005 learned Sessions Judge acquitted the accused. Being aggrieved by the said 3 judgment and order the State of Maharashtra has filed Criminal Appeal No. 106 of 2006. Criminal Writ Petition No. 1080 of 2007 is filed by Vasudha Vasant Deshpande under Section 482 of the Code of Criminal Procedure (“the Code”) and under Articles 226 and 227 of the Constitution of India being aggrieved by the same judgment and order. 3. It is necessary to begin with the facts of the case. a) The accused and deceased Sonali were friends. Both were unmarried. They were acquainted with each other since the time of their school days. They were classmates. The deceased had obtained the B.H.S.C. Degree from S.N.D.T. College in the year 2003. She had also appeared for two drawing examinations. She had passed three examinations of Kathak. She was a well qualified and enterprising girl. She had acted in professional dramas. b) The accused had taken the examination of the last year of the degree course. Both had decided to marry after completion of education. Thereafter the parents of the deceased visited the house of the accused. The mother of the deceased had approved the marriage proposal. The marriage was as good as finally settled. The 4 members of the accused’s family were on visiting terms with the members of the family of the deceased. Relations between both the families were cordial. A formal engagement ceremony was to be held at the time of Dasehra. The parents of the accused and the deceased had given them full freedom to go anywhere. They used to visit various places together. c) The accused and the deceased had decided to visit Bhushi dam situate at Lonavala on 27/7/04. On 27/7/04 at about 7.30 a.m. the accused went to the house of the deceased and both of them left her house stating that they would be going to Bhushi dam and would be back in the evening. They reached Lonavala. They went to Shanti Chowk and hired the rickshaw of PW 9 Dinesh Borkar. He took them to Ashoka Hotel at Lonavala. The accused and the deceased selected Room No. 9 and booked it. They were in the room for about 10-15 minutes. Thereafter they left the hotel for sightseeing. They went to Bhushi Dam in the autorickshaw of PW 9. They returned to Ashoka Hotel by the same authorickshaw. They took key from PW 5 Mrs. Mubarak Sayyed Ali Husaini, the owner of Ashoka Hotel. They placed order for lunch with her. Then they went to their room at about 3-30 p.m. Within 15 minutes PW 6 Bharati Nadar, the waiter of the hotel went to the said room with boiled eggs 5 as per the order. He knocked the door of the room, it was not opened. He went back to the counter and disclosed this to PW 5 Mrs. Mubarak Husaini. She tried to contact the room on intercom but there was no response from the room. Thereafter she told PW 6 to open the door of the said room with the help of duplicate key. He opened the door. PW 5 and PW 6 peeped into the room through the door. They found the deceased and the accused completely naked. The deceased was lying near the door of the bathroom. The accused was in a leaning position and saying ‘pardon me’. PW 6 then called the police. PHC Sahebrao Dagdu Warule rushed to the hotel. He shifted the deceased and the accused to Shraddha Hospital. PW 4 Dr. Jagannath Marutirao Jadhav examined the deceased. She was declared dead. The accused was admitted in Shraddha Hospital for treatment. Inquest panchnama of the dead body of the deceased was made. The dead body was sent to Primary Health Centre at Khandala for postmortem. d) PW 3 Vasudha Deshpande, the mother of the deceased was informed on phone that the accused and the deceased were admitted in the hospital. PW 3 Vasudha and PW 1 Chandrashekhar Kulkarni gathered at the house of the deceased. PW 2 Mandar Vilas Thakur along with others went to Lonavala to see what had 6 happened. The accused was shifted to the Jehangir Nursing Home at Pune for further treatment. The medical officer who did postmortem opined that the deceased had died due to asphyxia due to strangulation. On the same day at 3.30 p.m. PW 3 lodged the First Information Report against the accused. On the basis of the FIR the accused came to be arrested on 31/7/04. After completion of the investigation the accused came to be charged as aforesaid. 4. The accused pleaded not guilty to the charge. From the suggestions made to PW 6 Bharati Nadar the defence of the accused appears to be that he and the deceased returned to the hotel from Bhushi dam, they placed order for meal and went into the room. After some time two persons entered the room. One of them was PW 6 Bharati Nadar. They pushed the accused and the deceased. One of them caught hold of the deceased and pressed her mouth. Another person caught hold of the accused and applied a substance like chloroform on his nose. Another person caught hold of both the shoulders of the deceased. The person who had caught hold of the deceased pressed her neck by both hands. Both of them fell unconscious in the room. The intruders then removed the ornaments, purse and shoes of the deceased and fled away with the booty. Thus the defence in short is that the deceased was done to 7 death by strangers who had entered the room after committing theft. In his statement recorded on 6/7/05 under Section 313 of the Code, the accused did not state his defence. He stated that he wanted to file a written statement. After the last witness was examined on 5/7/05 written statement taking defence of theft came to be filed on 6/7/05. In this written statement there was no mention of PW 6 Bharati Nadar and the alleged theft and murder committed by him and his companion. 5. The prosecution case did not find favour with learned Sessions Judge. In his opinion, the prosecution had failed to prove its case beyond reasonable doubt. He, therefore, acquitted the accused. Hence this appeal and the writ petition. 6. We have heard Mr. Dedhia, learned APP in support of the appeal and Mr. Gole, learned counsel appearing for the accused. Mr. Gole submitted that this court should not permit Mr. Kadam, learned counsel who appears for the petitioner in the writ petition i.e. the complainant, mother of the deceased, to advance arguments to persuade this court to reverse the order of acquittal. He submitted that the scope of writ petition is limited. We are unable to accept this argument While persuading this court to order a retrial or 8 reinvestigation the counsel is bound to contend that the trial was not conducted properly and, therefore, there is a failure of justice. The complainant’s case is bound to be that the acquittal is unmerited. His arguments are bound to overlap. Amplitude of our powers in writ jurisdiction is wide. Such objection ought not to have been raised. Complainants and victims rights are increasingly being recognized by the Supreme Court. Since, we found this objection to be unsustainable, we heard Mr. S. P. Kadam, learned counsel for the petitioner in the writ petition. With the assistance of learned counsel appearing for the parties, we have perused the record. 7. Mr. Dedhia, learned APP submitted that the impugned judgment and order is perverse and hence must be set aside and the accused must be convicted in accordance with law. He submitted that admittedly the deceased was last seen with the accused. They were together in the room where the incident took place. There is no credible evidence on record to suggest that anyone else entered the room and committed the murder of the deceased. Learned APP submitted that all circumstances point unerringly to the guilt of the accused and, therefore, learned Judge erred in acquitting the accused. 9 8. Mr. Kadam, learned counsel for the complainant submitted that in this case there is a total failure of justice and, therefore, retrial is necessary. He submitted that vital pieces of evidence have been ignored by the prosecution. 9. Mr. Kadam submitted that investigation of the case is faulty. The prosecution has not made any effort to find out the truth. Counsel submitted that the defence came out with a case that PW 6 Bharati Nadar entered the room with some persons, applied chloroform on the nose of the accused. Another person caught hold of both the shoulders of the deceased and pressed her neck. Both of them fell unconscious. The intruders then removed the ornaments, purse and shoes of the deceased and fled away. Counsel submitted that this story is, however, not put to any of the prosecution witnesses except PW 6. It is not put to the investigating officer. In his statement recorded under Section 313 of the Code the accused has not stated his case. He has merely stated that he will file his written statement. A belated written statement taking up the above defence was filed. Counsel submitted that the accused ought to have put this case to the prosecution witnesses, particularly the mother and the investigating officer. Counsel submitted that the defence is palpably false. Counsel submitted that, if there was a 10 theft the deceased or members of her family would have lodged a complaint. No such complaint came to be filed. Counsel drew our attention to a certified true copy of receipt dated 27/7/04 signed by Vilas Narayan Thakur a relative of the deceased in which it is stated that corpse of the deceased was handed over after postmortem along with all articles. Counsel submitted that, this receipt indicates that all the articles of the deceased were handed over to the deceased’s family and, therefore, the deceased’s family did not make any complaint of theft. The prosecution did not bring this receipt on record. Counsel submitted that, if the case of the accused was that there was a theft and murder and he loved the deceased as alleged, the accused should have made a complaint about theft and murder. But there is no counter-complaint. Counsel submitted that the prosecution ought to have led evidence to bring the correct facts on record about the alleged theft of ornaments worn by the deceased when the defence suggested that there was a theft. Counsel submitted that trial court also failed in its duty. Trial court is empowered under Section 311 of the Code to summon material witnesses or examine persons present or recall any witness for just decision of the case. Trial court did not use its power under Section 165 of the Evidence Act. Relying on judgment of the Supreme Court in Zahira Habibulla Shaikh & Anr. v. State of Gujarat & Ors. AIR 11 2004 SC 3114, counsel submitted that this is a fit case where reinvestigation and retrial could be ordered. In this connection counsel also relied on Satyajit Banerjee & Ors. v. State of West Bengal & Ors., (2005) 1 SCC 115. Counsel submitted that in any case this is a fit case where in the interest of justice this court should either take additional evidence or direct additional evidence to be taken by the trial court under Section 391 of the Code. Counsel submitted that because of faulty investigation, inept prosecutor and a judge who merely acted as an onlooker without using his powers there is an unmerited acquittal. 10. In support of his submissions counsel also relied on Ganeshlal v. State of Maharashtra,1992 (3) BCR 671, Mandhari v. State of Chattisgarh (2002) 4 SCC 308, State of Rajasthan v. Raja Ram (2003) 8 SCC 180, Vilas Patil v. State of Maharashtra, 1992(2) BCR 671, State of Rajasthan v. Kashi Ram, 2006(12) SCC 254 , Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (10) SCC 681. He also relied on judgment of this court in Vanya Narsing Pawara v. State of Maharashtra, 2002 BCR (Cri) 214. 11. Mr. Gole on the other hand submitted that this being an appeal against acquittal the order of acquittal cannot be lightly disturbed. He submitted that the view taken by the trial court is a reasonably 12 possible view. The impugned judgment cannot be called a perverse judgment. Counsel submitted that in any case where two views are possible the view which is in favour of the accused must be accepted and in such a situation, the appellate court is not justified in substituting its view in the place of the trial courts view merely because it feels that that view is also possible. Counsel submitted that this court should be slow in disturbing the order of acquittal and this is certainly not a case where the order of acquittal can be disturbed. In this connection Counsel relied on Bhim Singh Rup Singh v. State of Maharashtra, AIR 1974 SC 286, Jagdish & Anr. v. State of Madhya Pradesh, 2008 All MR (Cri) 558 SC, Arulvelu & Anr. v. State represented by the Public Prosecutor & Anr., 2009 All MR (Cri) 3396 (SC). Counsel also relied on judgments of this court in State of Maharashtra v. Maruti Budhaji Bhepi & Ors., 2005 All MR (Cri) 2434, State of Maharashtra v. Sau. Sumanbai wd/o Jaipalsingh Rajput & Ors., 2008 All MR (Cri) 382. 12. Counsel submitted that the prosecution has failed to prove motive. He submitted that in a case based on circumstantial evidence motive plays a very important role. If the prosecution alleges motive and does not prove it, link in the chain of circumstances is broken. In this connection, he relied on the 13 judgment of this court in Deepak Raikar s/o Anand Raikar v. The State 2008 All MR (Cri) 225. Counsel submitted that it is only when the evidence led by the prosecution, if believed, makes out a prima facie case that the question of the accused discharging the burden under Section 106 of the Evidence Act arises. Counsel submitted that only when the prosecution case has been proved that the burden in regard to such fact which was within the special knowledge of the accused may be shifted to the accused for explaining the same and suspicion, however, grave cannot be a substitute for proof. In this connection counsel relied on Vikramjit Singh @ Vicky v. State of Punjab, 2006 (12) SCC 306 and judgment of the Andhra Pradesh High Court in Nagireddi Siva (a) Chanti & Anr. v. The State, 1992(1) Crimes 409. 13. Counsel submitted that the prosecution has miserably failed to prove its case against the accused. Counsel pointed out that the deceased and the accused were in love, they were to get married and both the families had approved their plan to get married. They had gone to Lonavala with the approval of the deceased’s mother. Counsel pointed out that the evidence discloses that the deceased and the accused were in a very good mood in Lonavala. This is established by the evidence of PW 9, the rickshaw driver, who drove 14 them in his rickshaw. His evidence further establishes that there was no motive for the accused to kill the deceased. 14. Counsel submitted that the deceased’s mother has in her evidence admitted that when the deceased left for Lonavala, she was wearing ornaments. However, there were no ornaments on the dead body. Therefore, the case of theft is substantiated. 15. Counsel submitted that case of rape is not made out. Medical evidence indicates that much prior to death the deceased had sex with the accused. There were no injuries on the private part of the deceased indicating that the accused had forced her to have sex with him. Counsel submitted that once theory of rape goes then the entire prosecution case becomes doubtful and the defence of the accused is probabalised. 16. Counsel submitted that the complainant i.e. mother of the deceased has not made out any case for grant of prayers made in the writ petition. He pointed out that PW 1 is the cousin of the deceased. He is an advocate. However, throughout the trial he did not make any complaint that investigation was bad. Counsel submitted that this is not a case where retrial could be ordered. 15 There is no allegation that threats were given to witnesses. It is not contended that certain papers or certain material was not available. Retrial cannot be ordered to fill in the lacunae in the prosecution case. Counsel submitted that Zahira’s case cannot be compared to this case. In that case witnesses were coerced. There was no fair trial. No such case is made out here. Counsel pointed out that even Satyajit Banerjee’s case is not applicable to this case because in that case the Supreme Court observed that the High Court should not have directed denovo trial but since retrial had already commenced, the Supreme Court did not interfere. Counsel distinguished the cases cited by the respondents and submitted that they must be confined to their own facts and cannot be made applicable to this case. Counsel submitted that in the circumstances, the appeal as well as the writ petition be dismissed. 17. We must first ascertain what is the scope of an appeal against acquittal. The principles in this regard are well settled by the Supreme Court. From the several judgments cited before us it is clear that, if the view taken by the trial court is a reasonably possible view it should not be disturbed. It should be borne in mind that the trial court has advantage of watching the demenour of the witnesses and is in a better position to assess the evidence. If two reasonably 16 possible views can be reached one which is in favour of the accused must be accepted. The trial court’s judgment cannot be set aside merely because the appellate court’s view is also possible. Very substantial and compelling reasons must be present to persuade the appellate court to set aside the order of acquittal. Unless the order of acquittal is perverse and wholly unsustainable in law it cannot be set aside. The appellate court must bear in mind that the presumption of innocence in favour of the accused is strengthened by his acquittal and hence great care has to be taken while dealing with an appeal against acquittal. Keeping these principles in mind, we shall approach this case. 18. Postmortem Notes indicate that there was circular contusion mark at the neck region of the deceased which extended to both the shoulders. Cartilages and Hyoid bone were broken. Cause of death is given as “Death due to Cardio Respiratory Failure due to strangulation”. Death was, therefore, homicidal. Postmortem Notes further state that semen was found in the uterus. 19. Before turning to the charge of murder, we must deal with the charge of rape. We have already noted that semen was found in the uterus of the deceased. Undisputedly therefore, the accused and the 17 deceased had sex. To ascertain whether the deceased was raped one must first have a look at the background of the case because there cannot be any direct evidence to establish what happened in the room. The evidence on record indicates that the deceased and the accused were in love with each other and they were to get married. Their marriage plans were approved by both the families. Soon they were to get engaged. Both the families were on visiting terms with each other. PW 3 Vasudha, mother of the deceased has stated that the accused and the deceased used to go for picnic to Sinhagad, Khadakvasala etc. They used to see films together. They had gone to Bhushi dam with the permission of PW 3 Vasudha. These facts are admitted by the parties. PW 9 Dinesh Borkar, the rickshaw driver who took the deceased and the accused all over Lonavala and dropped them at Ashoka hotel from Bhushi dam has stated in his evidence that they were chitchatting and teasing each other. They stopped at a wine shop. They boy bought a wine bottle. According to this witness he did not notice any dispute or bickering between the two. 20. One thing is certain from the above evidence that the accused and the deceased were no stranger to each other. They were to get married. They used to go fo picnics and movies. They had come to 18 Lonavala with the consent of the parents and when they entered the hotel room they were happy. They were found completely naked in the room. In such circumstances, it is difficult to reach a positive finding that the deceased was raped. 21. It is necessary to see the medical evidence on record. Exh. 56 is the letter dated 3/8/04, sent by the investigating officer to the Medical Officer, Primary Health Centre making following queries; (1) whether sexual intercourse was committed with the deceased before death and at what time it was committed? (2) If the deceased was subjected to sexual intercourse, whether there are injuries on her private part? (3) Whether sexual intercourse was committed by force? 22. Exh. 55 is the reply to the said letter. The queries are answered as follows: 1) 1) Sexual intercourse was committed with the deceased about 4 to 5 hours before the death; (2) There were no injuries on the private part of the deceased. 19 (3) Sexual intercourse appears to have been committed by force. 23. Learned judge has observed that Exh. 55 is the opinion expressed by PW 14 Dr. Haloor. However, Dr. Haloor has stated in his cross-examination that Exh. 55 is a reply given by Dr. Parbhane who had expired. In order to ascertain the correct position, we compared the signature of Dr. Parbhane on the PM notes with the signature on letter Exh. 55. They are identical. Therefore, Exh. 55 appears to have been signed by Dr. Parbhane. 24. Learned Judge has come to a conclusion that the third answer is tampered with. According to him the word नसावा has been tampered to make it look like असावा. That means, the sentence ‘sexual intercourse appears to have not been forced upon’ has been converted into sentence “sexual intercourse appears