1 cri appeal 92.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 92 OF 1999 Sow Laxmibai w/o Marotirao Savant, Age : 38 Years, Occu. : Household, R/o Rahul Nagar, Aurangabad. .. APPELLANT Versus The State of Maharashtra, .. RESPONDENT ..... Smt. Varsha Ghanekar, Advocate holding for Shri N. S. Ghanekar, Advocate for the Appellant. Shri V. G. Shelke, A.P.P. for Respondent/State. ...... CORAM : S. S. SHINDE, J. RESERVED ON : 04-02-2011 PRONOUNCED ON : 18-02-2011 JUDGMENT : . This appeal is preferred by the appellant/original accused against the judgment and order of conviction dated 20.02.1999 passed by the IVth Additional Sessions Judge, Aurangabad in Sessions Case No. 278/1995 thereby convicting the 2 cri appeal 92.99 appellant for the offence punishable U/Sec. 366-A of the Indian Penal Code. 2. Brief facts of the prosecution case are as under : Prosecutrix Sushila and accused No. 3 Laxmibai are the resident of the same locality i.e. Rahul Nagar, Aurangabad. Accused Laxmibai used to reside adjoining to the house of prosecutrix Sushila at Rahul Nagar and both of them were acquainted with each other. Both these ladies used to work as labourer and prior to the incident for about 8/10 days, they used to go for labour work in the Nath Seeds Company, Aurangabad. It is further alleged that, accused No. 1 Dadarao @ Mohan and accused No. 2 Raju Rajput were also working as watchman in the Nath Seeds Company at the relevant time. The prosecutrix Sushila, therefore, got acquainted with all the accused persons. 3 cri appeal 92.99 3. It is further case of prosecution that, on 23.07.1993, there was “Nag Panchami” festival. On that day, the labour work in the Nath Seeds Company was closed. Prosecutrix Sushila was therefore present inside her house at Rahul Nagar. It is further alleged that, in the morning at about 8.30 a.m. accused No. 3 Laxmibai went to the house of Sushila and asked her to accompany her to take swings (Zoka). Thereupon, prosecutrix Sushila informed the accused No. 3 that, she was busy inside house and she had no time to go for swinging. Accused Laxmibai then left the house of prosecutrix. It is further alleged that again at 10.30 a.m. accused Laxmibai went to the house of Sushila and told her to accompany her for swinging. Thereupon, the prosecutrix Sushila went away alongwith Laxmibai. Laxmibai then took her in a rickshaw and brought her to Jyoti Nagar area. The rickshaw was halted near one building situated at Jyoti Nagar. Laxmibai took prosecutrix in that building. Accused No. 1 Dadarao @ Mohan then came 4 cri appeal 92.99 down stairs. He then gave call bell of the house. Thereupon, accused No. 2 Raju Rajput opened the door of that room. Laxmibai then took Sushila inside the room. Accused Raju then pulled her in the room and he latched the door of the house. Thereafter, accused Raju Rajput undressed Sushila. He also removed his clothes. He then forcibly committed rape on Sushila. Sushila then raised shouts. Accused Laxmibai then opened the door and came inside the room. The clothes of Sushila were strained with bloods. Laxmibai then brought Sushila in a rickshaw to Rahul Nagar at her house. By that time it was 2.30 p.m. The mother and aunt of Sushila, who were present in the house then asked accused Laxmibai what had happened ? Thereupon, accused Laxmibai told all of them that while taking the swing Sushila felled down and sustained injuries. All of them them brought Sushila in the same rickshaw to the Ghati Hospital, Aurangabad. She was then examined by the lady medical officer, who was on duty. She 5 cri appeal 92.99 then informed the relatives of Sushila that rape was committed on her. In the mean time, accused Laxmibai had lodged report with the police vide Exhibit 30 and on that basis an offence was registered vide Cr. No. 180/1993. It is this report which set the police machinery in motion. 4. Police then proceeded to the spot at Jyoti Nagar and effected spot panchanama, vide Exhibit 27. One blood stained lungi belonging to accused No. 2 Raju and one bed sheet stained with blood were recovered from the spot. Thereafter, police went to the house of prosecutrix Sushila at Rahul Nagar and the blood stained petikot, blouse, saree and nicker, belonging to prosecutrix were attached under seizure panchanama Exhibit 28. The statement of various witnesses were recorded. The statement of prosecutrix were recorded on next day i. e. 24.07.1993. Accused No. 1 and 2 were arrested on 23.07.1993 and accused No. 3 was arrested on 26.07.1993. The blood stained cloths 6 cri appeal 92.99 were sent for chemical analysis. The prosecutrix and the accused persons were got examined from the Medical Officer. On completion of investigation all the accused persons were sent for trial along with charge sheet to the Court of IVth Jt. Judicial Magistrate First Class, Aurangabad. 5. The learned Magistrate by order dated 07.10.1995 passed below Exhibit 1, was pleased to commit the case to the Court of Sessions, since the alleged offence U/Secs. 366-A and 376 of I. P. Code are exclusively triable by Court of Sessions. 6. Charge was framed against all the accused persons for the above mentioned offences vide Exh. 5. The accused persons denied the charges and claimed to be tried. The defence of accused as disclosed from the cross – examination of witnesses and their own statements recorded Under Section 313 Cr. P. C. appears to be that of total denial and false implication. The IV Additional 7 cri appeal 92.99 Sessions Judge, Aurangabad after recording the evidence and hearing the parties convicted the appellant for the offence punishable under Section 366-A of the Indian Penal Code. 7. Learned Counsel for the appellant submitted that there is absolutely no evidence to show that the prosecutrix was procured by the present appellant and she was induced with an intent or knowledge that she will be forced or seduced to illicit relations with another person. Counsel further submitted that Sessions Court has not properly appreciated evidence of Doctor and also history of the patient which was given by the prosecutrix that when she was playing swing with her friends, she was raped by two youths and that she has not disclosed this history to her parents or relatives. The Sessions Judge has not taken into consideration that there was no history of external injury, pains in abdomen or history of giddiness. Learned Sessions Judge has not taken 8 cri appeal 92.99 into consideration the contents of M.L.C. which was forwarded to Kranti Chowk police station, Aurangabad, in which it has been stated that when the prosecutrix and the appellant were playing swing, at that time, at about 1-00 p.m. two persons tied mouth and eyes in which name of person was Nitin resident of Kanchanwadi and one of them took prosecutrix in the field of sugarcane and committed rape. Her eyes were tied and therefore, she was not able to see that person and she has bleeding. Therefore, she was admitted in Ghati hospital. It is further submitted that conduct of the prosecutrix in keeping silence immediately after the incident and not disclosing the incident to her mother and other relatives itself indicates that incident which has been narrated by the prosecutrix is not at all probable and is not being corroborated by any other material evidence. It is further submitted that there are material omissions and contradictions. There is no consistency in the evidence of 9 cri appeal 92.99 prosecution witnesses. Therefore, the Counsel for the appellant would submit that that this appeal deserves to be allowed. Relying on the cross examination of this witness, the Counsel for the appellant vehemently submitted that, this witness in the cross examination stated that she had narrated the entire incident to the Medical Officer and she had reduced her statement as per her version and obtained her thumb impression, is required to be read alongwith evidence of the Medical Officer. Medical Officer has stated in her evidence that P.W. No.1 was repeatedly asked what had happened. Counsel further submitted that this witness had accompanied Laxmibai on many occasions. Learned Counsel further submitted that Lady Doctor had asked about the incident to this witness. However, she has not stated in her evidence that Laxmibai had played role in commission of offence. Learned Counsel for the appellant further invited 10 cri appeal 92.99 my attention to the cross examination of this witness and submitted that if the evidence of Medical Officer is taken into consideration, the Medical Officer in her evidence specifically stated that the prosecutrix told her that the incident occurred at 1 p.m. when she was taking swing. She had told that earlier to her, she did not narrate the incident to any of her relative. Thereafter, Medical Officer had called duty constable from police chowki and in presence of police constable also Sushila had narrated the same incident that when she was taking swing, two young boys came there and committed rape on her. She had made inquiry with Sushila for about 15-20 minutes from the time she came in hospital. However, she did not tell anything about the appellant Laxmibai. Therefore, Counsel for the appellant would submit that when M.L.C. history does not show that prosecutrix attributed any role to the appellant or evidence of Medical Officer P.W.No. 7 does not support the prosecution case, 11 cri appeal 92.99 in that case, the appellant is entitled to the acquittal. 8. On the other hand, learned A.P.P. appearing for the State invited my attention to the evidence of prosecutrix and also other witnesses and submitted that the evidence of prosecutrix inspires confidence and same is corroborated by the medical evidence and also there is evidence on record which shows that prosecutrix was taken from her parent's house by the appellant and she was brought back to the house of appellant herself. Therefore, there is complete link of the events/circumstances which connects the appellant with the crime. Therefore, learned A.P.P. would submit that this appeal is devoid of merits and same may be dismissed. 9. The evidence of Sushila Ashok Ronar, P.W. No.1 is at Exhibit-17. In her examination in chief, she has stated that prior to marriage, her 12 cri appeal 92.99 name was Sushila daughter of Bhishan Shinde. Prior to marriage, she was residing at Rahulnagar, Aurangabad alongwith her parents. Her two brothers and one sister was also residing with them. At that time, she used to go for labour work with her parents. Previously, she used to work with mother of accused No.3 Laxmibai. Thereafter, she used to work in Nath Seeds for about eight days. At that time, accused Laxmibai also used to work with her. When they were working with Nath seeds for eight days, thereafter, the work was stopped for two days. There was no cement on Thursday and Friday and there was Nagpanchami, so work was closed. Accused Nos. 1 and 2 namely Raju and Mohan were also working in Nath Seeds. Similarly, accused Laxmibai used to work in Nath Seeds with them. She has further stated that she know all three accused. On the day of Nagpanchnami, she was present in her house. Accused Laxmibai came to her house. She asked P.W. No.1 to accompany 13 cri appeal 92.99 her. She told her that she wanted to prepare food and she cannot come. Thereafter, Laxmibai left the house of this witness and again at 10-30 a.m. she came to her house. She told that we would go to Hamalwadi to swing. She took her by Rickshaw at Jyotinagar. Laxmibai paid Rs.10/- towards fare of Rickshaw. There was one building. This witness asked Laxmibai that there is no swing. Laxmibai then took this witness to one building. When P.W. No.1 alongwith Laxmibai went near building, accused No.1 Mohan got down from the stair case of the building. Mohan gave call bell. Accused Raju then opened the door. Thereafter, this witness stated thus : " Laxmibai entered in that room and she asked me to come inside so I went inside the room. Mohan also entered in room. Thereafter, Laxmibai started going out of the house. I also tried to go out of the house. At that time, Laxmibai pushed me inside the room. Accused Raju then caught hold of me and 14 cri appeal 92.99 bolted the door from inside the house. Accused Laxmibai latched the door from outside. Accused Raju fell down me on the Chaddar which was puit on the floor. I then raised shouts. Accused Raju pressed my mouth by one hand, and he untied lace the petticoat then torn. He then removed my petticoat and knicker. At that time, accused Raju had put on his under pant. Then he tried to touch my private part. I then shouted and pushed him. I then shouted and came near the door. I then shouted Laxmibai Laxmibai. Then Laxmibai opened the door. When accused Raju removed my clothes he tried to insert his private part in my private part. I then shouted and pushed him. I then shouted and Laxmibai opened the door. At that I was necked. Laxmibai then gave me clothes. The clothes were stained with blood. Laxmibai asked me to go to the hospital. I told her that I wants to go to home. At that time, I was feeling giddiness. Laxmibai then brought me home in rickshaw. 15 cri appeal 92.99 My mother asked Laxmibai what had happened at that time, she told my mother that I had fallen from the sweeing." (Emphasis supplied). This witness has further stated that she became unconscious. She retained consciousness in Ghati hospital. When Doctor asked her about the incident, she narrated all the incident to him. Raju committed sexual intercourse (rape) with her. Mohan was also with her. All accused before the Court are same. She identified accused before the Court. She has also identified clothes which were on her person on the day of incident. The bed sheet was also identified. 9. This witness was cross examined at length, however, nothing substantial is brought on record by defence so as to disbelieve her evidence. 10. After careful perusal of the evidence of the prosecutrix, it reveals that she has 16 cri appeal 92.99 categorically stated about the incident. Not only that, she had given details of the incident. It is also not in dispute that she was taken from her house. There are two witnesses to corroborate the prosecution story that P.W. No.1 was taken from her house by Laxmibai and also she was brought back by Laxmibai to her house. The evidence of the prosecutrix vis-a-vis evidence of P.W.No. 7 required to be read/examined in the light of the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra vs. Chandraprakash Kewalchand Jain reported in AIR 1990 SC 658. The Hon'ble Supreme Court in Para. Nos. 16 and 17 held thus : "16. A prosecutrix of a sex- offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 17 cri appeal 92.99 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of 18 cri appeal 92.99 evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accept ed. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: 19 cri appeal 92.99 "It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary." With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. (Emphasis supplied). 17. We think it proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is 20 cri appeal 92.99 a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behavior. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in 21 cri appeal 92.99 different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally commit ted on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity." (Emphasis supplied). 11. Therefore, the evidence of the prosecutrix, even does not require corroboration, if her evidence is fully trustworthy. As the Hon'ble Supreme Court held in aforesaid judgment that if the prosecutrix as a adult and of full understanding, the Court is entitled to base conviction on her evidence unless same is shown to 22 cri appeal 92.99 be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not he higher than is expected of an injured witness. Ordinarily evidence of prosecutrix must carry some weight as is attached to the injured who is victim of violence, unless there are special circumstances which call for greater caution, in which case, it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. The Hon'ble Supreme Court has further held that to insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be 23 cri appeal 92.99 adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. The evidence of prosecutrix in the present case is trustworthy. She has given details and material particulars how the incident had happened. In her cross examination the prosecutrix has stated thus : "It is not true to say that I am deposing false that accused Laxmibai latched the door from outside. It is not true to say that I am deposing false that Laxmibai took me in Rickshaw to Jyotinagar. It is not true to say that I am deposing false that Laxmibai pushed me inside the room and accused Raju pulled me inside the room, and latched the door. It is not true to say that I am deposing false that accused Raju fell me on the floor, and he removed lace of my petticoat and removed my 24 cri appeal 92.99 clothes. It is not true to say that I am deposing false that accused Raju touched my private part and he inserted his private part in my private part and I then shouted. It is not true to say that I am deposing false that when I shouted, at that time Laxmibai opened the door. It is not true to say that I am deposing false that my clothes were stained with blood and Laxmibai asked me to go to hospital and I told her that I want to go home. It is not true to say that I am deposing false that my mother asked Laxmibai what had happened at that time, she told my mother that I had fallen from swing. It is not true to say that Raju did not commit sexual intercourse with her." (Emphasis supplied). 12. Therefore, perusal of the evidence of the prosecutrix before the Court which is substantive piece of evidence, has not been shattered in her cross examination. The minor contradictions which are insignificance in nature, are required to be 25 cri appeal 92.99 ignored. The evidence of the prosecutrix is corroborated by the medical evidence. On examination by Medical Officer P.W. No.7 Dr. Snehalata Kuris Nair found that hymen was torn to left side, there was injury of 1-1/2" in left fornix with severe pv bleeding. There was no sign of any other injury or seminal stains on her body or clothes. The girl was 11 years old, as per history given by her aunt. For confirmation of age radiological test