1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.845 of 2006 Shankar Gangaram Shinde .. .. Appellant/ (Orig.Accused) Versus The State of Maharashtra (Notice to be served upon A.P.P. High Court, Appellate Side, Bombay) .. Respondent Mr.A.V. Chatuphule for Appellant. Mrs.A.A. Mane, APP for State. ---- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 13th November 2009 Date of reserving the judgment : 4th December 2009 JUDGMENT : 1. This Appeal challenges the judgment of the learned 3rd Additional Sessions Judge, Thane, dated 28.6.2006 in Sessions Case No.479 of 2005, under which the Appellant came to be charged, tried and convicted of various offences under a single transaction in the incident that is alleged to have been taken place on 8.7.2005 at 2.30 a.m. in Lokmanaya Nagar Pade No.3, Shree Om Sainath Apartment, Terrace Flat No.501. 2 The offences under which the accused is charged are for having committed house trespass in the dwelling house of the two victim women, P.W.1 and P.W.6 after having made preparation for causing hurt and wrongfully restraining them therein punishable under Section 452 of the Indian Penal Code (IPC), wrongfully confining these women therein punishable under Section 323 of the IPC, threatening and intimidating them therein punishable under Section 506 of the IPC, committing robbery of certain ornaments and other articles of the worth of Rs. 92,800/- punishable under Section 395 of the IPC, causing such robbery with a deadly weapon being a knife and causing grevious hurt thereby punishable under Section 397 of the IPC and also gang raping two women therein, punishable under Section 376G of the IPC. 2. The accused is convicted of offences punishable under Sections 452, 342, 323, 506, 395 and 376G of the IPC and sentenced to suffer rigorous imprisonment and to fine Rs.5,000/- and in default, to undergo further rigorous imprisonment for 30 days on all counts. The accused has been acquitted of the offences punishable under Section 397 of the IPC, from which there is no appeal by the State. 3 3. The essential case of the prosecution is sought to be proved through the evidence of the two victim women, one of whom was the complainant, being P.W.1 and P.W.6. The prosecution has shown recovery of certain ornaments which were stated to have been robbed through evidence of the Panch, P.W.2. Corroborative evidence is led of the mother-in-law of one of the victim women examined as P.W.3. The spot Panch has been examined as P.W.4. P.W.5 and P.W.7 are the Panchas for recovery of certain clothes, which has not yielded anything incriminating. P.W.9 is the ACM, who conducted Test Identification Parade. P.W.8 and P.W.10 are the two Investigating Officers, who investigated a related case and this case. 4. It may be at once mentioned and it has been argued on behalf of the Appellant by his Advocate that despite injuries stated to have been caused during the incident which resulted in simple and grievous hurt, the medical evidence is not produced. The Advocate for the Appellant referred to the certificate of the Medical Officer, Civil Hospital, Thane, which forms a part of the charge-sheet in respect of each of the victims. The Doctor is not examined. The certificates are not proved. It may be mentioned that the certificates specifically show 4 no injury seen of over the bodies of the two victims as also specifically on their respective private parts. 5. It may also be mentioned that despite the collection of evidence reflected in the medical report, the Chemical Analyser s (CA) report does not show anything incriminating. P.W.1, the complainant, is shown to be of AB blood group. P.W.6, the other victim, is shown to be of B blood group. The blood group of accused No.1 is inconclusive and even the CA s report does not incriminate the accused. 6. In the light of this total absence of corroborative evidence, the evidence of the two victims is alone to be appreciated. 7. P.W.1 and P.W.6 are dancers in Bhavana Beer Bar at Sion, Mumbai. On 7.7.2005, they went to the Beer Bar. The Beer Bar was closed at 1.30 a.m. on 8.7.2005. They returned to their residence in Sumo vehicle at 2.30 a.m., accompanied by one Ravi, who was the waiter in the Beer Bar. Ravi dropped them till the staircase of the building. They climbed of the staircase and opened their grill door by opening the lock. When they just entered inside the accused suddenly came and put his hand. Seven persons 5 entered inside. The accused removed a knife and put it at the neck of P.W.1 and threatened her not to shout. He forced her to open lock of the main door. He pushed himself inside and told P.W.1 to put on light. This light was the candle light. The accused told both of them to sit on the Sofa, which they did. The accused asked them to show the cupboard, which they showed. The accused gave P.W.1 a fist blow on the back, threatened her with the knife and took her to the room in which the cupboard was placed. He searched in the cupboard and took 14 finger rings, 5 chains, mangalsutra, 2 bangles, bracelet, cash, mobile phone, necklace, ear tops, etc. of the value of Rs.92,800/-. Thereafter another accused person, who was with the accused, kept these articles in a cloth. Thereafter the accused told her to remove her clothes. She refused. He took out knife and gave hurt and fist blow. Then he pulled her to the bedroom. Again he told her to remove clothes and she refused. He showed her the knife and then forcibly removed her clothes. He told her to lie down on the bed which she refused. The accused pushed her, removed her underwear and forcibly had relations with her. Thereafter he had relations with P.W.6 and then his friend had forcible relations with P.W.1. Thereafter his friend left her and had sexual 6 relations with P.W.6. After sometime the accused again had sexual relations with her. They all went out at 4.30 a.m., threatening them that they would be killed, if they would inform the Police. P.W.1 lodged a complaint. She gave description of her assailants. She identified the accused before the Court. 8. She was called for the identification parade where she identified the accused. Thereafter she identified her chain, which has been marked Article 7. The clothes of both the victims were seized. 9. Her cross-examination shows that there was a complete darkness during the incident. Only one candle was burning. It also shows that in the 2 hours that this incident transpired the accused as well as the other assailants beat up both the victims many times. She deposed that she was beaten up 3 times on the back and waist. Her chain and finger rings were snatched. 10. P.W.6 also deposed similarly. They are related. Her evidence shows that 4 persons entered the house. P.W.1 was taken in the bed room first. After sometime the accused and P.W.1 came outside the bedroom. Then the accused told her to come with him 7 in the bed room. He forcibly took her therein and told her to remove her clothes. When she refused he forcibly removed her clothes and then he did galat kam with her. When she came outside she saw the friends of the accused raping P.W.1 in the kitchen. Then he told her to sit with him. He also raped her. Then the accused again raped P.W.1. At 4.30 a.m., they went away threatening them. She has given a value of the ornaments stolen by them. She has not deposed about the act of stealing. She was called for the identification parade. She had identified the accused. 11. In her cross-examination, she has admitted that there were no lights in the house. There were 4 rooms in the house. She had not shouted during the entire incident. That was because she was threatened. Her cross-examination shows that she was raped 2 times. She came and sat in the hall. She agreed that at that time P.W.1 had a chance to run away. She had seen the accused and another person snatching the gold chain from P.W.1 s neck. When she was asked about what other articles were stolen, she had kept silent and not answered. The learned Judge has recorded her demeanour and the fact that she had not answered that question in spite of sufficient time being given. She has 8 admitted that P.W.1 was beaten many times and she was beaten once. She had resisted when the persons raped her. The incident in the kitchen had taken place on the floor. She had seen the accused at the Police Station before the identification parade. P.W.1 had also seen the accused in the Police Station. 12. It is trite to say that the evidence of a victim of rape is required to be accepted by the Court even without collaboration if it is credible, trustworthy, acceptable and inspiring confidence. The evidence of both P.W.1 and P.W.6 is just the contrary. 13. The above evidence would show a completely incredible, untrustworthy story of a dishonest case being made out against the accused. The victims were women capable of taking care of themselves. They were capable of putting up of resistance. In fact, the evidence itself shows that they had refused and resisted. There are several acts in the course of a single transaction, specially the violation upon their persons. Their evidence shows that the accused and his friend took turns to commit gang rape upon both of them in the darkness. The accused was a stranger and yet has been identified. 9 The identification is after seeing them at the Police Station and before the TIP was conducted. Threat is at the point of a knife. The knife, which is recovered, is an ordinary knife available in the market. One of the witnesses has deposed about several articles of ornaments. The other witness has been completely silent about the articles. The various articles, which were robbed at the point of a knife, are, therefore, not proved. Neither of them has explained the role of 7 persons or 4 persons who were stated to have entered the flat with the accused. The two transactions of two entirely different and distinct offences of robbery and rape are stated to have been committed at the same time and place. There is absolutely no part of the evidence of either of the witnesses, P.W.1 or P.W.6 that can inspire confidence. 14. Despite the evidence of force used and hurt caused, that evidence has not been corroborated by the medical evidence. 15. The Test Identification Parade is vitiated as both the women admittedly saw the accused prior to the parade in the Police Station. 16. The evidence of the Panch, P.W.2, shows the recovery 10 of the plastic bag containing ornaments and knife from a cupboard of the Sofa in the house of the accused. The evidence shows only gold mangalsutra, bangles, finger rings and knife seized by the Police under the panchanama, Article 13. The accused has identified only the knife, gold chain from amongst the articles stated to have been seized. The accused was stated to be handcuffed at the time he volunteered to show the articles. The Panch admitted that the chain, marked Article 7, was easily available in the market. The judgment of the learned Judge shows that the chain was ordered to be returned to P.W.1 and the other articles being worthless are ordered to be destroyed after appeal period is over. 17. It is seen that, though P.W.2, Panch, has not turned hostile, his evidence shows only a chain being produced out of the articles which are seized. The initial voluntary statement of the accused is that he will produce stolen chain and the knife. Yet the evidence shows 3 other ornaments being the gold mangalsutra, bangles and finger rings being taken out of the plastic bag by the accused. The chain, which is produced at Article 7, is admitted to be an article easily available in the market. The evidence of the Panch also does not inspire confidence with 11 regard to the recovery of the precise articles. It is not explained by the prosecution how the gold mangansutra, bracelet, finger rings, taken out of the plastic bag, resulted only in a gold chain being produced in Court at Article 7. In view of the fact that P.W.1 alone has enumerated the articles and P.W.6 has specifically kept silent when cross- examined about the articles, the fact of the articles having been robbed or stolen from her house is not corroborated. A reading of the entire evidence of P.W.1 shows that she is a witness of untruth. Her evidence deserves complete rejection. Consequently, that part of the judgment in which she enumerates various ornaments being stolen cannot be accepted. Since though various articles are stated to be recovered but only one chain is produced, that fact also shows that the case of the prosecution, as stated through P.W.1 and P.W.2, is not worthy of acceptance. 18. It must be noted that the accused has been acquitted of the charge under Section 397 of the IPC. Hence, commission of robbery is not proved. Under these circumstances, recovery of ornaments stated to be of the complainant, P.W.1, cannot be taken to be proved. The ultimate production of a single gold chain in Court cannot be used to buttress the 12 prosecution case of robbery or other unrelated offences by recovery of one of the robbed articles. 19. Only the present Appellant has been prosecuted. The charge-sheet is filed against him and other accused. The other accused are stated to be absconding. The case against him has failed to be proved under any of the offences for which he is charged. 20. The accused deserves to be acquitted of all the charges levied against him, including charges under Sections 452, 342, 323, 506, 395 and 376G of the IPC. Consequently, the judgment and order of the learned 3rd Additional Sessions Judge, Thane, is set aside. The accused is acquitted of all the charges. 21. The muddemal property being the gold chain, which is directed to be returned to P.W.1, shall not be returned to P.W.1, who is seen to have led completely false evidence and not proved the case of robbery of the gold chain at all. The chain, Article 7, shall be forfeited to the State. The Senior PI of the relevant Police Station shall cause the gold chain, Article 7, to be weighed in the presence of the Registrar (Judicial) of this Court. The Registrar (Judicial) shall record the weight and cause the gold chain to be sold in the market at the 13 current market value. The amount of the sale shall be paid over to the Legal Services Authority of the State of Maharashtra for being utilized to provide legal aid. 22. Compliance of the above directions shall be recorded by the Registrar (Judicial) of this Court. (SMT.ROSHAN DALVI, J.)