cri-app-397-07 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMIAL APPEAL NO. 397 OF 2007 The State of Maharashtra ]..Appellant [Ori.Complainant] Vs. 1. Santosh Anand Davane ] Age 26 years, Residing at ] Vishnunagar, Digha ] 2. Samadhan Dnyandev Davane, ] Age 20 years, Residing at ] Vishnunagar, Digha ]..Respondents [Ori.Accused Nos.1 and 2] .... Mr. Rajesh More APP for State Mr. Abhaykumar Apte (appointed) advocate for Respondents .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JULY 13, 2010 ORAL JUDGMENT : [ PER SMT.V.K.TAHILRAMANI,J.]: 1 The Appeal has been preferred by the State of Maharashtra against the judgment and order dated 24.1.2006 passed by the learned 3rd Ad-hoc Additional Sessions Judge in Sessions Case No. 168 of 2005. By the said judgment and order, the learned Sessions Judge acquitted 1 cri-app-397-07 both the respondents-original accused nos.1 and 2 of the offence under Section 376(g) and 292 r.w. 34 of IPC. By order dated 5.4.2007, the appeal came to be admitted by this Court and action under Section 390 of Cr.P.C. was directed. In the meanwhile, accused no.1-Santosh expired on 10.5.2007. Pursuant to the action under Section 390 of Cr.P.C. accused no.2 Samadhan came to be arrested by Rabale Police Station and produced before the Court on 19.4.2010. As he did not make application for bail, he was taken in judicial custody till 30.4.2010. On 26.4.2010, his advocate filed application for bail and on 27.4.2010, the accused was ordered to be released on bail in the sum of Rs. 25,000/- with surety in the like amount. However, he could not furnish the requisite surety, hence, he was remanded to judicial custody till 14.5.2010. It is brought to our notice that till today, he is in jail as he has not been able to furnish the requisite surety. 2 It is seen that respondent no.2 has been languishing in jail as he has not been able to furnish surety. He hails from a poor background and hence, is unable to furnish requisite surety or engage an Advocate to represent his case before this Court. In view of the fact that respondent no.2 has been in custody though he has been granted bail, 2 cri-app-397-07 on 12th July, 2010, we appointed advocate Mr.Abhay Apte to represent the case of the accused. Mr. Apte agreed to assist us in the matter and requested that the matter be kept in the afternoon so as to enable him to go through the papers. In the afternoon, Mr.Apte submitted that since this matter is not very big, he has been able to go through all the papers and instead of advancing arguments regarding release on P.R. Bond only or reducing the surety amount, he is ready to argue the entire matter. Looking to the fact that the matter is a very small one, we thought it fit to proceed to dispose of the appeal itself. 3 The prosecution case briefly stated is as under: Prosecutrix PW 1 Alka Kamble was residing at Vishnu Nagar, Digha, Thane with four family members comprising of her parents, brother and grand-mother. On 21.12.2004 the prosecutrix, her grand mother and her brother were at her house. At about 7 p.m. accused no. 1 Santosh who is a neighbour called the prosecutrix to his house to prepare “Bhakari ” which is a food item like Roti or Chapati. When the prosecutrix was going into kitchen of the house of accused no.1 Santosh, accused no.2 Samadhan closed the door of the house and told her to watch a blue film on T.V. When she refused to watch the film, 3 cri-app-397-07 both accused forcibly removed her clothes. Thereafter, accused no.2 removed his own clothes and raped her. Thereafter, accused no.1 Santosh raped her. Her aunt PW 2 Satyabhama and brother PW 6 Kuldip came into the house. They found her in a naked condition. Her aunt helped her to wear clothes. Thereafter she narrated the incident to them. She was taken to the police station at 8 p.m. by her aunt and her brother. At the police station, she was immediately referred for medical examination. After medical examination, she came back to the police station. Then her FIR came to be registered. On the basis of FIR, C.R.No.I-440 of 2004 came to be registered at Rabale police station under Section 376(g) and 292 of IPC. Accused came to be arrested. Clothes of accused as well as prosecutrix and bed sheet came to be seized under panchnama. After completion of investigation, charge sheet came to be filed. 4 We have heard the learned APP and Mr. Abhay Apte, the learned counsel for respondent-original accused no.2 Samadhan. We have perused the judgment and order passed by the learned Sessions Judge as well as the evidence in this case. After carefully considering the matter, we are of the opinion that the appeal deserves to be 4 cri-app-397-07 dismissed. 5 The age of prosecutrix Alka as seen from her own deposition is 19 years. The incident occurred on 31.2.2004. Evidence of prosecutrix came to be recorded on 1st October, 2005. At that time, she gave her age as 19 years. This means that at the time of the incident, she was 18 years of age. No proof of date of birth of the prosecutrix i.e. birth certificate or school leaving certificate has been produced on record. Even taking into consideration the opinion of the Doctor after radiological examination, it is clear that the prosecutrix was well over 16 years of age at the time of the incident. If this is so, then it means that she was competent to give her consent for sexual intercourse as per the provisions of Section 376 of IPC. The case of prosecutrix is that both the accused had forcible sexual intercourse with her without her consent. Therefore, in view of the age of the prosecutrix, in order to prove that accused had committed an offence of rape, prosecution has to first prove that accused had sexual intercourse with prosecutrix and that they did so without her consent. 6 As far as rape is concerned, we would like to refer to the 5 cri-app-397-07 evidence of PW 11 Dr. Bansal a Gynecologist who examined the prosecutrix. Dr. Bansal stated in her evidence that hymen of the prosecutrix had an old tear. It is also pertinent to note that no injuries were found on the body of the prosecutrix suggesting that she had put up any resistance. Dr. Bansal has further stated that if two persons forcibly committed rape, then in such case, there would be bleeding from the private parts. Dr. Bansal further added that she had indeed given such a report about her opinion to the police, however, the prosecution has not placed this report on record. Thus, looking to the medical evidence on record, it cannot be said that it supports the prosecution case. 7 Immediately after the incident, i.e. within one hour, prosecutrix was brought to the police station by her aunt and her brother. She was immediately referred for medical examination and thereafter, she came back to the police station and her FIR came to be registered. When the prosecutrix was medically examined, Doctor also collected vaginal swab, pubic hair and nail cuttings of prosecutrix. This vaginal swab, pubic hair and nail cuttings were sent for chemical analysis along with other articles such as clothes of the prosecutrix and clothes of the 6 cri-app-397-07 accused. It is seen that the prosecutrix was immediately sent for medical examination so there was no loss of time or time gap between the time of the incident and collecting the vaginal swab. In such case, C.A. Report regarding vaginal swab was very much relevant and important circumstance to show that the prosecutrix was subjected to sexual intercourse by two persons. However, the C.A. Report has not been produced by the prosecution. The suppression of C.A. Report specially in respect of vaginal swab definitely leads to an adverse inference that the findings in the C.A. Report if disclosed, do not support the prosecution case. Perusal of C.A. Report Exh. 11, shows that no semen or blood was detected on any of the clothes of prosecutrix or on the clothes of the accused nor was any blood or semen found on bed sheet which was seized from the scene of incident. 8 Both the accused were sent for medical examination. Accused no.1 Santosh came to be arrested and sent for medical examination within five hours from his arrest. Medical Certificate regarding the examination of accused Santosh is at Exh.46. On perusal of the medical report, we find that it is mentioned therein that on examination of Genital `smegma ’ was found to be present. The 7 cri-app-397-07 presence of smegma negatives the possibility of having sexual intercourse during the last 24 hours. We may also refer to the passage occurring on page 942 in Modi ’s Medical Jurisprudence and Toxicology, 23rd Edition, wherein it is observed that presence of smegma proves that the accused could not have had sexual intercourse at least during the last 24 hours. No doubt, as far as accused Santosh is concerned, no such inference can be drawn because, he came to be arrested after more than 24 hours after the incident. Thus, the finding of smegma in his case, would not really be of much help to him. However, we may note here that finding of smegma in the case of Santosh shows that the story put forward by the prosecutrix that both Santosh and Samadhan committed rape on her, is not true. In such case, we find every reason to gravely doubt the version of the prosecutrix that Samadhan also committed rape on her. 9 The reason put forward by the prosecutrix for going to the house of the accused Santosh is that he called the prosecutrix to his house for preparing Bhakri which is a food item like a Roti or Chapati. We find that this averment of the prosecutrix does not inspire any confidence because the right hand of the prosecutrix was affected by 8 cri-app-397-07 Polio. The prosecutrix has admitted in her evidence that she never cooked food in her house and it was her mother who cooked food. It has also come on record that accused Santosh had a mother and his mother and sister Rama were residing in the house with him. In fact, the prosecutrix has admitted that just before the prosecutrix entered the house of Santosh, his sister Rama came out of the house and told the prosecutrix not to come in the house. Thus, looking to the fact that mother and sister of Santosh were residing with him and were available for cooking food, there was no question of the accused calling the prosecutrix to his house for making “Bhakari ” that too looking to the fact that the right hand of the prosecutrix was affected by Polio and the fact that she never cooked food. Thus, looking to all these facts, her evidence that the accused called her to his house for preparing Bhakari, hence, she went there, does not seem to be at all reliable. 10 According to the prosecutrix, the incident took place in the house of accused no.1 Santosh. The house of the prosecutrix is almost in front of the house of Santosh. There is a distance of approximately 4 feet between the house of Santosh and the house of the prosecutrix. The house of Santosh is situated in a row of houses in a chawl in a slum 9 cri-app-397-07 area and the distance between two rows of houses is hardly four feet. There was no wooden shutter or glass shutter to the window of the house of Santosh and the window was only covered with a plastic sheet. This window is next to the door of the house of the accused. One Varsha Sawant and her family was residing on one side of the house of the accused and on the other side of the room, one Vithal Dhonde resided along with wife and children. In front of the house of the accused, one Sai Kamble along with her three children was residing. The prosecutrix has admitted that doors and window of the houses are open during the evening time and during evening time, many women used to wash clothes and utensils in the open space between the two rows of the houses. In such case, looking to the condition of the house where the incident took place and the fact that it was situated in such a crowded locality any shouts for help of the prosecutrix would have been easily heard and people would have come to the rescue of the prosecutrix. The fact that no one came to rescue her shows that she did not shout for help, which in turn shows that the incident was consensual in nature. It is also pertinent to note that in her examination in chief the prosecutrix has not stated anywhere that she shouted for help or raised any cries. 10 cri-app-397-07 11 The prosecutrix has tried to state that during the incident she put up resistance against the alleged forcible sexual intercourse. As far as putting up resistance is concerned, no injuries were found on the body of the prosecutrix suggesting that she put up any resistance. The evidence on record does not show that the events which occurred were of a forcible nature, in fact it appears that she was a consenting party. Moreover, it is seen that the door of the house of the accused was not locked but it was slightly ajar. It appears highly unlikely that any person would while committing forcible intercourse with a girl, leave the door open in such a crowded locality. 12 It is the prosecution case that PW 7 Shailaja was the cousin as well as friend of the prosecutrix. Shailaja has stated that house of accused Santosh was in front of the house of the prosecutrix, so she knew him. On the day of incident at about 7 p.m. when Shailaja was going to public latrine, while she was passing in front of the door of the house of Santosh, she heard shout of prosecutrix. So she stopped at the door and confirmed that it was the voice of prosecutrix. This witness has specifically stated that the door of the house of accused Santosh 11 cri-app-397-07 was slightly open. She went to the house of the prosecutrix and informed Satyabhama and Kuldip that she had heard shout of prosecutrix from the house of accused Santosh and then she went away. If we take into consideration the fact that Shailaja Bansode is a close relative as well as friend of Alka, her conduct upon hearing shouts of Alka appears to be very unnatural. Since the door of Santosh's house was slightly open, then the natural conduct of Shailaja on hearing shout of her cousin and friend Alka, would be to push open the door and go inside to rescue Alka. But instead of that, Shailaja merely went and informed PW 2 Satyabhama aunt of Alka and PW 6 Kuldip about hearing voice of Alka. When this witness was asked a specific question in her cross-examination as to whether she felt that she should have pushed open the door, the witness refused to answer the said question. From the conduct of Shailaja in refusing to answer this question, it can safely be inferred that irrespective of whether she had indeed peeped into the room or not she did not want to state what she has seen or heard while waiting outside to confirm that it was Alka ’s voice coming from the house of accused, nevertheless, Shailaja was satisfied that there was nothing alarming and that Alka was not in trouble and was not in fact calling out for help. However, the very fact that Shailaja did 12 cri-app-397-07 inform Satyabhama about it, means something unusual did happen at Santosh ’s house. There is no doubt, keeping in mind the condition in which the prosecutrix was found without her clothes, that something did take place while she was in the house of accused Santosh. As far as accused Santosh is concerned, we have already observed that looking to the medical evidence, he could not have had sexual intercourse with the prosecutrix. Therefore, it appears at the most, the incident only involved accused Samadhan. Even as far as Samadhan committing rape on her is concerned, we may refer to the evidence of PW 6 Kuldip who is the brother of Alka. Kuldip has stated that when he made enquiry with his sister Alka, she told him that Santosh had sexual intercourse with her. Thus, Alka has not told Kuldip that Samadhan had sexual intercourse with her. 13 The prosecution has examined PW 2 Satyabhama as well as Alka ’s brother PW 6 Kuldip who had both deposed that they were informed that voice of Alka was heard from the house of accused Santosh, hence, both of them rushed to the house of Santosh. Kuldip first reached the house of accused Santosh but Santosh did not allow him to enter the house, hence, Satyabhama pushed Santosh aside and 13 cri-app-397-07 then entered inside. Samadhan was in the house. She found Alka in the kitchen in naked condition. Here, we find the conduct of the prosecutrix to be unnatural. If an act of forcible nature took place, she would run towards her aunt for help and not towards the kitchen which is in the inner portion of the house. Both PW 6 Kuldip and PW 2 Satyabhama made enquiries with Alka. Whereupon Alka told her brother Kuldip that Santosh had sexual intercourse with her. Whereas when Satyabhama made enquiry with her, she informed Satyabhama that both the accused had sexual intercourse with her. Thus, the version told by Alka to both these witnesses is also not consistent which raises doubt about the veracity of her evidence. 14 From the evidence of these two witnesses i.e. Kuldip and Satyabhama as well as the evidence of Alka, there is no doubt that Alka was indeed found in the house of the accused Santosh in a naked condition, hence, something did occur in the house of Santosh. We have already ruled out the possibility of Santosh having sexual intercourse with Alka. Thus, the incident of sexual intercourse if at all it did occur, must have occurred with Samadhan. The evidence on record suggests that even if such an act occurred it was not a forcible act but it 14 cri-app-397-07 was a consensual one. Alka was over 16 years of age at the time of incident, therefore, such an act would not constitute rape. As far as offence under Section 292 IPC is concerned, we find that there is no cogent and reliable evidence on record. 15 Looking to the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere with the same in this appeal against acquittal. Appeal dismissed. Respondent no.2 Samadhan Dnyandev Devane be released from jail forthwith, if not required in any other case. Office to communicate this order to respondent no.2 who is in Thane jail. 16 Before parting with the judgment, we wish to place on record our appreciation for the able assistance given by Mr.Rajesh More, the learned APP for the State and Mr. Abhaykumar Apte, the learned advocate for the respondent-accused, who at a very short notice was ready with the matter and conducted the same ably. Office to pay him fees as per the Rules. [SMT. V.K.TAHILRAMANI,J. ] [SMT. RANJANA DESAI, J.] 15