1 CR.APPEAL.1235.06.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1235 OF 2006 Satish Sayaji Gaikwad ...Appellant/Orig.Accused No.1 Kanchya Nepali ...Appellant/Orig.Accused No.2 @ Mahendrasingh Bharatsingh Dadhiyal Vs. The State of Maharashtra ...Respondent through Kalyan Police Station Mr. Milind H. Thenge, Advocate for Appellants Mr. S.A. Shaikh, A.P.P for the State CORAM : SMT. ROSHAN DALVI, J. Date of Reserving for Judgment: 4th May 2011 Date of Pronouncing the Judgment: 13th June, 2011 JUDGMENT : 1. This is an Appeal against conviction by both the Appellants for offences punishable under Section 376(2)(g) of the I.P.C., 452 and 406 r.w. Section 34 of the I.P.C and sentenced to suffer Rigorous Imprisonment (R.I) for 10 years and pay fine of Rs.1000/- in default to suffer further R.I for 3 months each for the offence under Section 376(2)(g). They have been sentenced to suffer R.I for 1 year and pay a fine of Rs.500/- i/d suffer R.I for 1 month each for the offence under Section 452 r.w. Section 34 of the I.P.C. They have been further sentenced to suffer R.I for 6 months and pay fine of Rs.500/- and i/d to suffer R.I for 1 month each under Section 506 r.w. Section 34 of I.P.C. All these sentences are to run concurrently. 2 CR.APPEAL.1235.06.sxw 2. The case of the prosecution is that the prosecurtrix who is a married woman with 2 children was alone in her house with her children when the accused came into her house at 2 a.m on 5 th September 2005 and accused No.1 committed rape upon the prosecutrix whilst accused No.2 put his legs on her hands and pressed her mouth. This case has been sought to be proved through the evidence of 7 witnesses. The most material witness is the prosecutrix herself who is examined as P.W.2. P.W. 1 is the neighbour who has proved the recovery of mattress and the clothes of the prosecutrix. P.W.3 is the Doctor who examined the prosecutrix and has proved the medical report. P.W.4 is the mother-in- law of the prosecutrix who has turned hostile after part evidence was recorded. P.W. 5 is the father-in-law of the prosecutrix who has also turned hostile after part evidence was recorded. P.W. 6 and 7 are the Investigating Officers, who have investigated the crime. Aside from proving the FIR, recovery of clothes and the Doctor’s report the prosecution has produced the C.A’s report as Exhibit-38 to prove that the accused committed offence under the aforesaid sections. 3. The prosecutrix lived with her husband and 2 children. Her husband was a rickshaw driver. The accused were known to her as they lived in her neighbourhood. It is her evidence that on 5 th September 2005 at about 2 a.m when her husband was away at work on the rickshaw she heard a noise from her window. She woke up, she saw a hand in the window. She felt that her husband had returned home. She opened the door. 2 persons being the two accused came in and tried to shut the door. She knew them as they were residing in the same area. She identified the accused before the Court. She tried to shout, but 3 CR.APPEAL.1235.06.sxw Appellant No.2 pressed her mouth with a banian. They took her near a wooden rack. The Appellant No.1 brought a mat and put it on the ground. He fell on her and Appellant No.2 put his legs on her hands and pressed her mouth. Appellant No.1 removed his pant and laid on her person. He removed her saree and her nicker and inserted his penis in her vagina. He kissed her and pressed her breast. He penetrated his penis in her vagina 4 to 5 times and after discharge of his semen he stood up and threatened her that if she disclosed the incident he would kill her. Then both the Appellants ran away. 4. A part of this deposition regarding the removal of saree and the nicker as also kissing her and pressing her breast are omitted in her statement. However the fact of rape by penetration has not been omitted. Her evidence shows a clear act of rape by penetration 4 or 5 times. It further shows the discharge of semen. It does not state where the semen was discharged. Soon thereafter and in the middle of night itself she has acted upon the assault. Her deposition shows that she took her 2 children with her and went to her father-in-law and narrated the incident. This is shown to be at 3 a.m in her cross examination. Thereafter she is stated to have gone to the police station with her father-in-law. On the way she met her husband’s friend one Balu Humane. She told him about incident and asked him to call her husband. She lodged her complaint. 5. Her cross examination has sought to show the description of the neighbourhood and how the neighbours would have known of this incident upon raising alarm. The houses were close to one another and hence in the normal course her shouts could have been heard. However 4 CR.APPEAL.1235.06.sxw her seminal case is that Appellant No.2 facilitated the offence by Appellant No.1 essentially by holding her down and gagging her with a banian. She has also been cross examined about the entire family which is not material. The fact that she may have relationship with one Sonya Jadhav is sought to be introduced in the evidence. However aside from making a suggestion that he was seen in her house by the accused once nothing further is shown. That, therefore, can have no bearing upon the acts committed by the Appellants. He also sought to suggest that she had borrowed Rs.200/- from Appellant No.1 and demanded other amounts. That aspect also would not have any effect upon the offence committed by the Appellant No.1. 6. Her cross examination has revealed that she came to the police station at 5 a.m. This was after she went to her father-in-law’s house and narrated the incident. This fact supports her case that she went to her father-in- law’s house during the middle of the same night itself. Her further cross examination has revealed that she went to her father-in-law’s house at 3 a.m. She has, therefore, acted with utmost dispatch. Her cross examination has further shown that she was in the police station till 12 noon. It is also shown that she returned to her house at 6 p.m. She was referred for medical examination at 11 a.m. She was at the hospital for 1½ hours. She then returned to the police station and then returned to her house. This cross examination shows about the entire day’s activities. After the incident at about 2 a.m she first complained at 3 a.m to her father-in-law. She lodged her complaint at the police station at 5 a.m. There would be several things to do which kept her in police station till 12 noon. However she has deposed that she has not come home between 8 to 9 a.m. This may be an erroneous statement. 5 CR.APPEAL.1235.06.sxw 7. She has been cross examined about the opening of the door in the night. Her husband was on night duty. He used to drive rickshaw in the night. Hence she has deposed that she had slept in the house after latching the door from inside. She has also deposed that some times her husband used to call her from the window. When she heard the noise at the window she opened the door. She has clarified in the cross examination that she called her husband “Aho”. There was no response, but she felt that her husband had come and hence she did not give next call “who are you”. She further clarified in the cross examination that when the two persons came in she tried to shout but Appellant No.2 pressed her mouth as soon as they entered the house. She has also explained that because she was forcibly caught hold of she could not resist them. She has further clarified that the mat was on the ground where she was sleeping. Hence it was available to be used by Appellant No.1 as per her deposition. In her cross examination she was asked about injuries to her head. She deposed that she received the assault on her head. There was a swelling on her head on the backside. She was asked how it does not appear in the medical report. She has clarified that she had not shown the swelling on the head to the Doctor. She has explained the arrest of the Appellants also at their house which was shown by her father-in-law. 8. Further in the cross examination she has deposed that she had not worn the nicker or pant while going to her mother-in-law’s house. She had kept that in her house. She refuted the suggestion that she had handed over the nicker or pant from her person to the police in the presence of the panchas. She has accepted that there were no injuries on her private part – she was a married women with 2 children. 6 CR.APPEAL.1235.06.sxw 9. She did not know Appellant No.2. However there were lights in the room at the time of the incident. She reiterated that when she was made to lie down Appellant No.2 put his legs on her hands and pressed her mouth. She however accepted that she had not received injuries on her hands. She has further refuted the suggestion that the Appellant No. 2 was coming from the duty and passing by the house when Sonya Jadhav was standing in front of her house or that she was seen with the said Jadhav by Appellant No.2. She has accordingly refuted the charge of false and fabricated case. 10.In her detailed and extensive cross examination spanning 9 pages over 2 days she has stood her ground. Her evidence has not been even slightly effected. The material evidence about the injuries has not even been touched in the cross examination. Of course she has given further details at the time of deposition, which have been omitted from her police statement, and may not be considered. Shorn of such details also the basic offence of rape under Section 375 being sexual intercourse against her will without her consent has been made out. The fact that the Appellant No.1 committed rape upon her whilst Appellant No.2 facilitated the act by forcing her down under his legs, which shows the role of both the persons, makes it a aggravated rape under Section 376(2)(g). 11.Under such situation she was naturally unable to shout. Hence there is no question of her raising any alarm for the neighbours being alerted. Her total lack of consent and will is further shown by the expeditious steps she took in informing her parents-in-law and lodging the complaint 7 CR.APPEAL.1235.06.sxw as also sending her friend to inform her husband. 12.The fact that she knew Appellant No.1 has been brought out in the cross examination itself. Even though she did not know Appellant No.2, the length of the offence and the role of the Appellant No.2 therein, he being right in front of her face, her identification of both the Appellants is unmistakable. 13.The fact that they have sought to throw mud upon her character does not dilute the offence at all. Even if she had any relations with another, the offence of rape must be seen from her evidence with regard to the offence unprejudiced by her other relationships. Various allegations made against her, have been refuted. She has been consistent in her cross examination, undisturbed by the mental stress that has been sought to be caused upon her in her cross examination including her relationship with another man. It has not been denied that she lived with her husband and children. It has been shown that she took even her 2 children with her in the same night soon after she was ravaged. 14.It is argued on behalf of the Appellants that it is impossible that there were no injuries on her hands or back or on her head when she was thrown down on the ground and when one man put his legs on her hands. The evidence has shown that the Appellant No.2 put his legs on her hands. It has not been shown that he stood on her hands with his entire weight or crushed her hands or even rubbed her hands against the ground. He only bore down his weight against her because she tried to resist the act of Appellant No.1. He, of course, succeeded in doing so. The cross examination has not shown how his legs were put on her 8 CR.APPEAL.1235.06.sxw hands or whether only part of the legs were on her hands. All that the evidence has revealed is that legs were put on her hands so that she could not move. Injuries on her hands are, therefore, not visible. In fact this has been clarified by the Doctor, which shall be seen presently. She did have injuries on her head being a swelling, for which she has not complained. That would be natural under the circumstances that she was in. The swelling on the head is a minor hurt which may not be heeded. 15.Her evidence is credible and reliable. It is the evidence of the prosecutirx in a rape case. She is not an accomplice. Such an incident cannot be witnessed by any other person. Her children were too small and were expected to be a fast asleep in the night when the incident took place. 16.The learned Judge has appreciated her evidence with a required eympathy. He has detailed how immaterial contradictions and omissions were sought to be made out. They have not falsified the case of the prosecution. The learned Judge has rightly disagreed the presence of one Sonya Jadhav and has correctly concluded that upon the cross examination at length nothing has been brought out which would be fatal to the case of the prosecution. He has considered how the neighbours could not hear any shouts, how she immediately acted and has rightly believed the above story. 17.The mother-in-law and the father-in-law of the prosecutrix have been examined as P.W.4 and P.W.5 being material witnesses to whom she had disclosed the offence for the first time and who had accompanied her to 9 CR.APPEAL.1235.06.sxw the police station. Their evidence is much the same. After leading some evidence they have turned hostile. They have deposed about the relationship and the residence of the prosecutrix which are admitted facts. They have deposed that at 2.30 a.m the prosecutrix came and knocked their door. P.W. 5 opened the door. The prosecutrix was weeping. Thereafter they turned hostile. P.W.4 has deposed that Appellants had entered in the prosecutrix’s house and had beaten her. She sent her along with her husband i.e. P.W.5 and she went to the neighbour. She deposed that the prosecutrix has not disclosed to her about the rape on her. Her cross examination by the prosecution upon she being declared hostile has revealed that she knew both the Appellants as they reside in the same area. 18.The material fact is that her daughter-in-law came weeping to her house on the same night at 2.30 a.m. That was not expected if she was only beaten by the Appellants. Even her evidence of beating has been shown to be omitted in her statement by the police from her cross examination. Hence the entire evidence is that there was no beating. Even if she was not informed about the act of rape, the prosecutrix had come to her weeping at 2.30 a.m. This evidence is sufficient to show the agony and the trauma that the prosecutrix would have been subjected to whilst she lived alone with her 2 small children after she was physically and sexually assaulted, abused and violated. The evidence only corroborates the time of the offence and the material credibility of the situation. 19.Even their evidence has been correctly appreciated by the learned Judge. He has observed that it is unfortunate that her inlaws did not state the material facts before the Court, but they admitted that she had 10 CR.APPEAL.1235.06.sxw come to their house along with her children at 2.30 a.m., which was an odd time, when she was weeping. Hence the learned Judge has rightly accepted the part of the evidence of the hostile witnesses which has not been even touched in the cross examination. 20. The material corroborative evidence is of the Doctor of Rukminibai Hospital where the prosecutrix was referred on the next day. He has been examined as P.W.3. He has deposed that her external examination revealed no injury. She had delivered 2 children, one by cesarean section and another vaginally. He found no evidence of external injury on labia majora, minora or thighs. He had taken 2 vaginal swabs which were sent to the C.A. His examination reveals that though the prosecutrix had changed her clothes following the said assault on the night before, she had preserved her night clothes. These were sent to the C.A. 21.In his cross examination he has deposed that her clothes which were on her person at the time of the incident were brought to the hospital at 11.55 a.m. She was taken to the hospital at 11 a.m. She was in the hospital for 1½ hours. Hence the timing stands to reason, though of course the Doctor cannot remember exact time, which was not mentioned in his certificate, from memory. His further cross examination shows that there may or may not be injuries upon the back in case of forcible intercourse. It further shows that he could not say whether there would be possibility of injuries on the back of the woman also in such circumstances. Hence he has deposed that he cannot say from the examination of the patient whether there was forcible sexual intercourse as per her history. The prosecutrix was a mother of 2 11 CR.APPEAL.1235.06.sxw children. 22.The C.A’s report has been marked Exhibit-38. It shows inter alia her petticoat and her underwear as Exhibits 5 and 6. Prosecutrix had deposed in her cross examination that she had not worn her nicker and pant when she went to her mother-in-law’s house. It was kept in her house. The Doctor deposed that though she had changed her clothes, she is said to have preserved her inner clothes which were sent to C.A examination. These were her petticoat and nicker. The petticoat Exhibit-5 has shown moderate number of semen stains ranging from 1 cm to 2 cms in diameter spread at places. These are shown to be of human origin of ‘O’ group. 23.The nicker Exhibit-6 is shown to be stained with blood mostly on middle portion and blood stains appear to be washed. This shows blood of human origin of group ‘O’. These articles preserved by her and kept in her house show blood as well as semen. 24.2 vaginal swabs which were taken by the Doctor upon her medical examination have shown no semen detected thereon. The medical examination of Appellant No.1 has shown blood group and semen ‘O’. The medical examination of Appellant No.2 is wholly immaterial. 25.It is argued on behalf of the Appellants by Mr. Thenge that having semen on the petticoat is wholly immaterial in view of the fact that the vaginal swabs have failed to show any semen. He has produced a print out of downloaded information with regard to the semen in the vagina from Wiki leaks. This information is constantly liable to change. In fact 12 CR.APPEAL.1235.06.sxw the downloaded information in this case itself shows various periods for which semen can stay in vagina after intercourse. The various answers range from 2 days to 3 weeks for the answers relating to time. It also shows an answer suggesting that nothing is known. It is, therefore, not an authentic medical evidence. 26.It may be stated that semen may be ejaculated either in the vagina or by withdrawal outside her. The evidence of the prosecutrix has shown that the Appellant No.1 inserted his penis in her vagina 4 to 5 times. After discharge of the semen he released her. She has not stated where the semen was discharged. She has not stated when the sexual act was completed. She is not cross examined on this aspect at all despite her otherwise lengthy cross examination. This is the most material sentence in her evidence. Explanation has not been sought only with regard thereto. If the Appellant No.1 had penetrated her 4 to 5 times it would mean that there was no discharge of his semen except on the last occasion. On the last occasion he could have ejaculated either inside her vagina or after withdrawal, outside it. That makes no difference to the act of penetration. Even slight penetration is sufficient to constitute rape. Ejaculation in the vagina is wholly irrelevant to the offence of rape. To determine discharge of semen these articles are collected upon the semen stains being found as incriminating evidence. Therefore, the fact that the vaginal swab does not show semen is not the evidence to conclude that there was no penetration. The factum of penetration is seen from the oral evidence of the prosecutrix. That aspect has been left untouched in the cross examination. The offence is complete. The fact that the penetration took place not once, but 4 to 5 times makes it more dastardly act, which constitutes a gross violation of human rights. It 13 CR.APPEAL.1235.06.sxw matters not whether the semen of Appellant No.1 was discharged. 27.The evidence of the prosecutrix about the penetration and the act of sexual intercourse is corroborated by the C.A report showing semen stains on her petticoat. The evidence of the Doctor further corroborates this fact since these clothes were brought to him in the hospital which were stated to be “preserved” by the independent witness. 28.Such evidence is sufficient to maintain the conviction. It is the act of both the Appellants who have succeeded in fully violating the prosecutrix. Both of them are equally liable for the offence of aggravated rape under Section 376(2)(g) of the I.P.C. 29.The conviction is, therefore, maintained. The Appeal is dismissed. (SMT. ROSHAN DALVI, J.)