1 apeal-485-06-i ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.485 OF 2006 Sunil Atmaram More ) aged 35 yrs. Residing at ) Taluka Mann, Village ) Lodhavade, Mukam Post ) Gondavadekhud, District ) Satara. Currently lodged at ) Kolhapur Central Prison. ) .... Appellant. Vs. 1) The State(at the instance) of DCB CID Unit I) ) 2) Ms. X(in order to protect ) the identity of the ) Prosecutrix she is ) referred to as Ms. X) ) .... Respondents. WITH CRIMINAL APPEAL NO.512 OF 2006 The State of Maharashtra ) (At the instance of D.C.B.C.I.D) C.R.No.46/05(Marine Drive ) Police Station C.R.No.101/05) ) C.C.No.302/PW/2005) ) .... Appellant. Vs. Sunil Atmaram More ) aged 35 yrs. Residing at ) Taluka Mann, Village ) Lodhavade, Mukam Post ) Gondavadekhud, District ) Satara. ) .... Respondent. 2 apeal-485-06-i Mr. Prakash Wagh with Mr. V.B.Sudade, for appellant. Mr. K.V.Saste, APP for State. CORAM:- P.V.HARDAS AND M.N.GILANI, JJ RESERVED ON: APRIL 15,2011 PRONOUNCED ON : MAY 6, 2011 M.N.GILANI, J. 1 Both these appeals arise out of the judgment and order of conviction and sentence dated 3/4/2006 passed by the Additional Sessions Judge, Greater Mumbai, in Sessions Case No.563 of 2005, whereby the accused was convicted for the offences punishable under sections 342, 506(II), 376(2)(a) & (b) of the Indian Penal Code and was sentenced as under: (i) for the offence punishable under section 342 of I.P.C. he was sentenced to suffer R.I. for 3 months and to pay fine of Rs.500/- i.d. to suffer imprisonment for 15 days; (ii) for the offence punishable under section 506(II) of I.P.C. he was sentenced to suffer R.I. for 6 months and to pay fine of Rs.1000/- i.d. to suffer further imprisonment for 30 3 apeal-485-06-i days; (iii) for the offence punishable under section 376(2)(a) and (b) of I.P.C., he was sentenced to suffer R.I. for a period of 12 years and to pay fine of Rs. 25,000/- i.d. to suffer further imprisonment for a period of one year; however, he was acquitted of the charge of an offence punishable under section 85(i) (b) of Bombay Prohibition Act, 1949. 2 Aggrieved by the judgment and order of conviction and sentence, the accused-appellant has filed criminal appeal no. 485 of 2006, and aggrieved by the judgment of acquittal of the accused under section 85(i)(b) of the Bombay Prohibition Act, and for enhancement of sentence imposed under section 376(2)(a) and (b) of I.P.C., the State has filed Criminal appeal no.512 of 2006. 3 Briefly stated, the prosecution case as disclosed from the FIR and unfolded during the trial is as under: 4 apeal-485-06-i The prosecutrix aged about 17 years is a college going girl, who had appeared for 11th standard examination in the academic year ending March/April, 2004. During vacation she joined first aid training course conducted by the Civil Defence, having their head quarters at Dhobi-Talav, Mumbai. The training programme started with effect from 14/4/2004. The incident occurred on 21/4/2005. On this day, she alongwith other boys and girls attended training session, which concluded at about 12.30 hours. After having lunch, some of them decided to visit Marine Drive promenade. At about 13.45 hours they reached Marine Drive station and from there they walked upto sea-shore and sat on the parapet wall facing the sea. This place is abutting the Princess Street flyover. The prosecutrix and her friend PW-2 Pramod were sitting holding hands on parapet wall. Under the Princess Street flyover there is a police chowky called as Meghdoot Police Chowky. It is 5 apeal-485-06-i a portable structure admeasuring 6 ft. x 5 ft. and having hight of 8 to 9 ft. It is used as a halting point by the Beat police and even by security guards who are engaged for security duty in the Marine Drive area. The accused was a part of two motor cycle borne patrolling team known as Beat Marshals, deputed for patrolling the sea face promenade at Marine Drive. On the day of incident he alone was on duty. PW-3 Sumit is private security guard employed by private security agency to patrol the Marine Drive area. He saw the prosecutrix and PW-2 Pramod sitting hand in hand on parapet wall. He contacted the accused through his mobile. The accused through PW-3 Sumit summoned the prosecutrix and PW-2 Pramod to the police chowky. It was about 15.00 hours. Prosecutrix and PW-2 Pramod followed PW-3 Sumit to the police chowky where they met the accused. The other 4 boys and 4 girls also joined them. Alleging that they were involved in indecent 6 apeal-485-06-i acts, the accused asked all others to go away except prosecutrix and PW-2 Pramod. The accused threatened them that he would charge them for the act of indecent behaviour in the public place and then demanded Rs.5,000/- from PW-2 Pramod. PW-2 Pramod did not have that much amount. The accused asked him to arrange for the amount and detained the prosecutrix. 4 The accused then closed the door of the police chowky, consumed liquor and despite resistance of the prosecutrix, committed rape on her thrice. After about an hour the prosecutrix could go out of the police chowky. The moment the prosecutrix came out of the police chowky, she saw her acquaintance Babloo(PW-5 Tiwari). The prosecutrix complained to PW-5 Tiwari that accused raped her. PW-5 got annoyed. He raised alarm which attracted passers-by. The media persons also arrived. At about 5.30 p.m. 7 apeal-485-06-i the accused sent message to the control room. Two mobile vans arrived on the spot. The accused, prosecutrix and PW-5 Tiwari were brought to the Marine Drive Police Station. 5 The prosecutrix was questioned by the police officer. Her complaint was reduced into writing. On that basis offence bearing C.R. No.101/2005 under section 376(2)(a),(b), 342, 506(II), 323 of I.P.C. was registered. Immediately, the Investigating Officer visited police chowky. Spot panchanama was drawn. Photographs of the scene of occurrence were taken. Wrist watch, water bottle containing alcohol, were seized from the spot. On the same night clothes which were worn by the prosecutrix and the accused at the time of incident were seized under panchanama. Then, the prosecutrix and accused were sent for medical examination. On 21.4.2005 at 10.20 p.m. a team of three doctors including PW-16 8 apeal-485-06-i Dr. Chavan who examined the prosecutrix. The accused was examined by PW-17 Dr.Bobade. 6 During investigation it was revealed that while threatening the prosecutrix and PW-2 Pramod, the accused had noted down their names and addresses on the note book supplied by PW-3 Sumit. This note book was seized from PW-3 Sumit. Mobile phone which was used by PW-3 Sumit to make call and mobile phone in possession of the accused on which the call of PW-3 was received were attached. It was revealed that on 18/4/2005, the accused had purchased mobile in the name of PW-10 P.C. Tambe. In order to fix authorship of the writing on the notebook, the specimen writing of the accused was collected. The questioned writing and the specimen writing were forwarded to handwriting expert on 13/5/2005. On 23.4.2005 the articles like clothes of accused and the prosecutrix, various swabs collected 9 apeal-485-06-i by the medical officer during examination of the prosecutrix and the accused were sent to the chemical analyser. 7 After investigation was over, charge-sheet was submitted in the court of Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The learned Metropolitan Magistrate committed the case to the Court of Sessions, Mumbai. 8 The learned Additional Sessions Judge on the basis of allegations made in the chargesheet framed charges against the accused for the offences punishable under sections 342, 506(II), 376(2)(a) and (b) of I.P.C. and 85(i)(b) of the Bombay Prohibition Act, 1949. The accused pleaded not guilty to the charge. 9 In order to prove the charges, the prosecution examined 27 witnesses and placed reliance upon the various documentary evidence including opinion of 10 apeal-485-06-i the handwriting expert. The accused did not examine any witness in his defence. His defence is that while on patrolling duty he spotted the prosecutrix and a boy in a half nude position. They were sitting in the parking area in between two vehicles. When he scolded them as to why they were indulging in indecent activities in public place, the boy started arguing with him and even threatened him to teach a lesson. The said boy then started shouting at him. When the accused warned the said boy that he would be informing their parents, the latter got annoyed and started collecting people. They refused to accompany him to the police station. Therefore, he made phone call at about 5 p.m. seeking police help. Meanwhile, people gathered. He again made second call. The said boy instigated the persons gathered there against him. Then the police van arrived. To the police officer, he explained as to what really had happened. Media persons came there and started 11 apeal-485-06-i taking photographs. Thereafter, he was carried to the police station and mercilessly beaten. In a nut-shell he stated that because of public out-cry and media hype he was falsely involved in this case. 10 Mr. Wagh, the learned counsel for the accused took us through the entire evidence produced before the trial court. He assailed the judgment and order of conviction and sentence on the following grounds: The learned Additional Sessions Judge committed serious error in holding the accused guilty of the offence of rape and other charges. The testimony of the prosecutrix is full of infirmities and discrepancies. It is not supported by the medical evidence. Absence of injuries on the private parts and her person speaks volumes about her veracity. At the instance of police number of improvements have been made in the prosecution case. The facts like recording of addresses in the note book, the 12 apeal-485-06-i accused demanding a bribe of Rs.5,000/-, PW-2 Pramod leaving the spot to collect bribe amount, did not find place in the first information report. Finding that no incriminating evidence could be collected during the medical examination, the prosecution deliberately put-forth story of the accused using condom. All the findings of the chemical analyzer are exculpatory and this shows innocence of the accused. The learned Additional Sessions Judge ignored such serious flaws and proceeded to rely upon testimony of the prosecutrix as a gospel truth. The evidence of PW-2 Pramod and PW-5 Tiwari ought not to have been relied upon by the learned Additional Sessions Judge. PW-5 Tiwari is a chance witness and absolutely there was no reason for him to be on the spot at the time of alleged occurrence. It was the accused who informed the police control room when PW-2 Pramod started arguing with him and started collecting people. Counsel went to the extent of contending that 13 apeal-485-06-i because of undue publicity given to this incident in the newspaper and the questions having been raised in the State Assembly, he was deprived of a fair trial. 11 He further submits that alleged seizure of water bottle smelling of alcohol and the wrist watch from the scene of occurrence is false and ought not to have been relied upon. The writing on the note book(Art.4) are not that of the accused. As such, the learned Additional Sessions Judge committed error in relying upon the same. Evidence adduced by the prosecution, to attribute ownership of the mobile phone, being untrustworthy should have been discarded by the learned Additional Sessions Judge. The story of the prosecution as a whole is full of infirmities, discrepancies, improbabilities in the sense that in the broad day light, when the prosecutrix was accompanied by her friends, it was humanly impossible for the accused to sexually assault her. 14 apeal-485-06-i There has been delay in recording of the statements of the witnesses. He further argued that the story narrated by the prosecutrix that accused by using his one hand gaged her mouth and by another hand undressed her and also undressed himself etc. is inherently improbable. This shatters the entire prosecution case and therefore, it should have been disbelieved by the learned Additional Sessions Judge. 12 In a nut shell, it is the contention of the learned counsel for the accused that the conviction recorded by the learned Additional Sessions Judge cannot stand to the test of probability and needs to be quashed. 13 The learned APP supported the judgment and order of conviction and sentence. It is his contention that there exists overwhelming evidence to substantiate the charges leveled against the accused. Evidence of the prosecutrix is corroborated by other 15 apeal-485-06-i evidence in the material particulars. The prosecutrix who is a girl of less than 17 years had accompanied her friend to Marine Drive sea-face and was sitting on the parapet wall. At the relevant time, the accused being assigned with the duty as a Beat Marshal took undue advantage of helpless-innocent girl. There is immediate lodging of FIR. The scene of occurrence was immediately visited. Statements of the witnesses were also recorded promptly. He further submits that the medical evidence supports version of the prosecutrix that she was subjected to sexual assault. 14 In order to support the appeal filed by the State, he submits that the learned Additional Sessions judge was not justified in taking lenient view by imposing sentence of 12 years. Considering the gravity and nature of offence, the learned Additional Sessions Judge ought to have sentenced the accused to suffer 16 apeal-485-06-i imprisonment for life. Lastly, it is contended by the learned APP that the Additional Sessions Judge committed error in acquitting the accused of the offence punishable under section 85(i)(a) of the Bombay Prohibition, Act despite there being sufficient evidence available on record. 15 In reply, the learned counsel for the accused submits that the accused is in fact innocent. The quantum of sentence is a matter of discretion of the trial Court. There is absolutely nothing to show that this discretion has been wrongly exercised by the learned trial Court. He therefore, submits that the appeal filed by the State may be dismissed. As regards acquittal of the accused of the offence punishable under section 85(i)(a) and (b) Bombay Prohibition Act, it is submitted that there exists no material to arrive at such a conclusion and therefore, the learned Additional Sessions Judge was right in 17 apeal-485-06-i holding the accused not guilty of such offence. 16 Having considered the rival submissions, we shall firstly examine the evidence of the prosecutrix. Her testimony shows that she joined the Civil Defence course which commenced on 14/4/2004. She alongwith 12 boys and 8 girls were undergoing the first aid training programme. On the day of incident all the trainees were relieved at 12.30 noon. They had a lunch in the canteen in Aykar Bhavan. Then group of 5 boys and 5 girls decided to visit Marine Drive. At about 1.45 p.m., they reached Marine Drive and sat on the parapet wall in groups. The prosecutrix and PW-2 Pramod were sitting hand in hand. It is in her evidence that at about 2.15 p.m. a watchman(PW-3 Sumit) approached them. He started questioning them about their alleged indecent behaviour. She and PW-2 Pramod protested. PW-3 Sumit asked them to accompany him to the police 18 apeal-485-06-i chowky. At a distance of about 100-150 ft from the place where they were sitting, there is Meghdoot Police Chowky. The accused was sitting in the police chowky. PW-2 Pramod pleaded with the accused that they had not done anything wrong. Then, the accused threatened them that he would be charging them. Other boys and girls also came to police chowky. The accused asked all of them to leave the police chowky, else he would put PW-2 Pramod under arrest. Alarmed by such threats, all left police chowky except the prosecutrix, PW-2 Pramod and PW-3 Sumit. She further deposed that the accused asked for a notebook from PW-3 Sumit. Then he started recording her and PW-2 Pramod’s name and address in the said note book. He then left the police chowky. The note book and writing were shown to the prosecutrix, which she identified and marked Exh. 12. After PW-3 Sumit left, the accused demanded Rs. 5,000/- from PW-2 Pramod. They had no money 19 apeal-485-06-i except Rs.100/-. When PW-2 offered him whatever he had i.e. Rs. 100/-, the accused was annoyed saying that he was not a beggar. The accused asked PW-2 Pramod to arrange the amount within two hours and till that time the prosecutrix would wait in the police station. After PW-2 Pramod left the police chowky, despite her repeated requests to allow her to leave, the accused made her to sit in the police chowky. Thereafter, the accused left the police chowky just for a moment and came back and then he consumed liquor, which was in the water bottle. He latched the door from inside and sat near her. Then he kissed her. Despite her resistance he continued his advances towards her. She was slapped and threatened that she would be killed if she makes a noise. It is her version that the accused undressed her and undressed himself and then slept over her. Thrice he rapped her. She also deposed about the accused using condom. It is her version that she was 20 apeal-485-06-i stunned, had become nervous, started weeping, closed her eyes and then fell semi-unconscious. While the accused was removing her nicker, it was torn and the strap of wrist watch was broken. After 10 to 15 minutes of this, she put on her clothes and came out. She saw her friend,PW-5 Tiwari(Babloo). She started screaming and divulged him the incident. PW-5(Babloo) was annoyed. He also started abusing the accused. Passers-by gathered. Police van arrived. In one police van she and PW-5 (Babloo) were taken to Marine Drive Police Station. On reaching there she lodged first information report at about 18.25 p.m., which was recorded by PW- API Tumbada. 17 The prosecutrix was shown clothes like black T-shirt, gray pant, nicker and slip which are articles 15 to 18. She identified them. She further identified the wrist watch Article 11, which was recovered from the 21 apeal-485-06-i scene of occurrence. 18 The prosecutrix was required to face volley of questions during her stressful cross-examination, which consumed about 7 working days. The questions were put to her about location of the spot, the distance between local railway station and the spot, width of the road, how she crossed the road, size of the police chowky, number of windows to the police chowky and her home condition like vocation of her father, details about her joining Civil Defence course, the nature of training imparted in the Civil Defence course, period of acquaintance with PW-2 Pramod, number of trainees in Civil Defence course, their names, assignments she got from time to time as Civil Defence cadet, location of chowpaty, her visit to canteen for taking lunch and many more. This seems to be reason for the prosecutrix being required to stand in the witness box over a period of 8 days. 22 apeal-485-06-i The prosecutrix was questioned on the issue like her date of birth. She had stated to police her date of birth as 20/8/1988 instead of 23/8/1988. Obviously, this is unnecessary as it is not the prosecution case that she was below 16 years of age and her consent had become immaterial. This reminds us of the provisions of section 138 of the Evidence Act, which gives defence right to cross-examine the witness. The objects of cross-examination are to impeach the accuracy, credibility, and general value of the evidence given in-chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. Section 138 does not mandate that cross-examination should be confined to the facts spoken during the examination-in-chief. The parties have liberty to elicit anything from the witness as long as it relates to the relevant facts. Irrelevant topics sometimes pursued 23 apeal-485-06-i at great length, and persistence shown in going over the same ground again and again in the hope of making the witness to give discrepant statements must not be permitted. Control over the court proceedings by the Presiding Officer in such a situation is expected. Be that as it may. 19 The material omissions which the defence could elicit from this witness are : (i) the accused asking PW-3 Sumit to hand over the notebook and the accused writing therein names and addresses of the prosecutrix and the PW-2 Pramod; (ii) the accused demanding Rs.5,000/- and then PW-2 Promod leaving the police chowky to arrange for the same; (iii) accused wearing condom before committing rape on her. We are in agreement with the learned counsel for the defence that these are material omissions and for that necessary explanation must come from the prosecution. This makes us to scrutinize the 24 apeal-485-06-i testimony of the prosecutrix closely and cautiously. 20 Before we discuss the aspect of these omissions and deliberate upon the explanation forthcoming from the prosecution, we shall discuss the medical evidence. On 21/4/2005 at about 10.20 p.m. medical examination of prosecutrix was conducted by the team of 3 doctors including PW-16 Dr. Chavan. Findings recorded by them at Exh.62 are reproduced below: “IV. Physical Examination : Built/Nutrition : Averagely built and poorly nourished. Mental status: Sound, well oriented in time, space and person. Gait : normal. Height:------- Weight:------- Teeth : Normal, not broken, space behind second molar ... Present/Absent. V. Injuries over her private parts/- breasts : No external signs of injury over private parts or breast. VI. Secondary sex characters : Breasts: Well developed, Tannes stg. IV. Secretions: Nil. Axillary Hair : Present. Public Hair : Present. Matting of public hair for F.S.I.Examination: 25 apeal-485-06-i present/Absent/Preserved/Not preserved. VII. Abdominal Examination including Anus: No tenderness over abdomen, no guarding or rigidity no signs of injury. VIII. Local examination (Private Parts) : (a) Labia Majoria : Normal (b) Labia Minora Normal. (c) Clitoris : Normal. (d) Vaginal Mucosa : mildly inflamed. (e) Type of Hymen : patulous, Hymen : Intact/Torn. Position of Tears : No tears O’Clock. Age of Tears: - Hymenal Orifice : Admits: One/Two fingers. (f) Any Injury to the Perineum : Nil. (g) Any foreign body : Nil. (h) Signs of STD : Nil. (i) Discharge in any : (1) Vaginal smear: Swab made/Not made (2) Blood for grouping : Collected/not collected. Swabs collected as specimen (1) Labial (2)Urethral (3) Vaginal (4) cervical (5) Anal (6) Buccal (7) nail chippings (8) public hair (9) blood in S.T.D. bulb (10) Cervical smear. In response to the letter from the Investigating Officer, on 25/4/2005, the said team of doctors informed the Superintendent of J.J.Hospital about their opinion. The relevant extract from the letter at Exh. 63 is as under: 26 apeal-485-06-i “This is with reference to above mentioned letters regarding rape victim Dhara Vinod Tank. Based on the victims’ history & physical examination, there is a possibility of sexual assault/intercourse. Final opinion will be given on the basis of chemical analysis report.” On 25/4/2005 final opinion was reserved impending receipt of the report of the chemical analyser. After receipt of the same and on 17/6/2005, the final opinion was recorded at Exh. 64. It is as under : “With reference to above mentioned subject, after (going sic) through all above mentioned reports, we are of the opinion that there may be possibility of incomplete sexual intercourse.” 21 Initial cross-examination of PW-16 Dr. Chavan is centered around format to be used while recording findings, presence of lady police officers and obtaining consent of the victim and conversation with the victim. In cross-examination, PW-16 gave some far reaching admissions, which we would like to reproduce hereunder: 27 apeal-485-06-i “I admit that in column No.VIII(e) the hymen intact/torn, provides further dotted space, to write by the medical officer whether it is intact or torn. We are required to write age of