1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.564 OF 1992 Suresh Maruti Rajapure (At present lodged in Yerwada Central Prison, Pune) ...Appellant. v/s. The State of Maharashtra (D.N.Nagar Police Station) ...Respondents. Mr. S.P.Kadam , adv. For the Appellant. Smt. G.P.Mulekar, APP For the Respondent/State. CORAM : J.H. BHATIA, J. RESERVED ON : MARCH 4, 2011. PRONOUNCED ON : MARCH 25, 2011. ORAL JUDGMENT: 1 Appellant/accused has by this appeal challenged the judgment and order passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.653 of 1990 whereby the accused was convicted for the offences punishable under Section 376 as well as under Section 376 r/w section 109 of the I.P.C. and was sentenced to undergo rigorous imprisonment for 7 years. 2 Prosecution case, in brief, is that the complainant Meheboobi P.W.1 and her sister P.W.2 Jahangirbi were married to one Mohammed. Both these women and their husband used to work as labourers on the site of K.G.Thawani Construction, Municipal Godown, 2 Bharadwadi, Andheri (East) P.W.1 Meheboobi and P.W.2 Jahangirbi were provided two separate huts adjoining each other at the construction site. Their husband also used to reside with them. P.W.4 Sitlaprasad was working as watchman at the site of the construction. On 5th April, 1989 at about 3 a.m. the deceased Ramesh Gavali and the present appellant entered into hut of Meheboobi and the deceased Ramesh mounted on her person with intention to commit rape. At that time, accused/appellant was also present there. Meheboobi shouted for help and therefore, her husband, Jahangirbi and Sitlaprasad came to that side. However, the deceased Ramesh Gavali and the present appellant threatened them with knife and also confined them in the godown and latched the same from outside. After that deceased Ramesh committed rape on P.W.1 Meheboobi. At that time, the present appellant was standing at the door of that hut with knife so that nobody should come to her rescue. After Ramesh Gavali completed his act, he and the appellant left the site. Then Meheboobi came out and opened the door of the godown where Jahangirbi, her husband and the watchman were confined. Meheboobi told her husband that they should left that spot and not reside there. Therefore, when these persons were going to the road to call taxi to shift somewhere else, the deceased Ramesh Gavali and the appellant again 3 came to them and threatened with knife and asked them to go back. Then both the culprits confined Meheboobi, her husband and the watchman in the godown and latched it from outside and they took Jahangirbi in her hut where firstly, the present appellant committed rape on her and then Ramesh Gavali raped her. After this, both the accused persons went away by giving threats to them. However, Jahangirbi insisted to go to police station and to lodge report. Accordingly, these persons went to the police station and P.W.1 Meheboobi lodged her report Ex.6 at the police station, on the basis of which Crime No.348 of 1989 was registered by D.N.Nagar police station on the same day. Meheboobi and Jahangirbi were referred to medical examination. Their clothes were seized. Spot panchanama was prepared. The deceased Ramesh Gavali as well as the appellant were arrested. Appellant was also sent for medical examination immediately after the arrest on 8.4.1989. On the basis of information given by him, his clothes as well as knife were recovered. It may be noted that pending the case, Ramesh Gavali died and, therefore, case against him abated, therefore, trial proceeded only against the present appellant. 3 Accused pleaded not guilty. According to him, he was falsely implicated in this case at the instance of the police. He contended 4 that some police in the area used to harass him and used to take away flowers and bouquets from him without making payment. He had complained against them and, therefore, they falsely implicated him in this case. On behalf of the prosecution, in all eight witnesses were examined. Several documents were placed on record. After trial, the learned Additional Sessions Judge convicted and sentenced accused as stated above. 4 P.W.1 Meheboobi, P.W.2 Jahangirbi and P.W.4 Sitlaprasad Thakur are the important witnesses. Meheboobi deposed at length as to how the incident occurred. Evidence of these persons reveal that at the site of the construction, certain huts with bamboo mats were constructed for accommodation of the workers. P.W.1 Meheboobi and her sister P.W.2 Jahangirbi both were married to same person, i.e., Mohammed and, therefore, these two ladies were provided two separate huts as per their evidence. Other workers, who were previously provided with remaining three huts had left the place of work as well as huts. Some new workers had joined 3 or 4 days before it but they were not provided with huts and, therefore, during the relevant night, except Meheboobi and Jahangirbi, none other persons were living in the said huts. During the relevant night, their husband was sleeping at about 5 30-40 feet away from the huts. P.W.4 Sitlaprasad, who was watchman was present near the gate of the site of the construction. The evidence of P.W.1 Meheboobi and P.W.2 Jahangirbi reveals that they were knowing deceased Ramesh Gavali as well as the present accused as they used to come near the site of the construction for removing coconuts from coconut trees. They also used to harass and threaten workers working at the construction site. 5 Evidence of Meheboobi shows that at about 3 a.m., she was sleeping in her hut. There were no light in hut. However, at a distance of about 30-40 feet municipal street lights were on. Because of that, there was sufficient light in the hut also. At that time, the deceased Ramesh Gavali and the present appellant entered into her hut. Ramesh Gavali placed a knife on her neck and she shouted for help. At that time, Jahangirbi, who was in the adjoining hut called out and asked as to what had happened. Her evidence shows that Sitlaprasad and her husband as well as Jahangirbi came there. Ramesh Gavali and the present appellant pushed watchman and her husband into the godown and closed the door from outside. Thereafter, Ramesh Gavali raped her. At that time, the appellant was present there. Her evidence shows that after Ramesh Gavali completed his act and when Ramesh and the accused went away, 6 she came out and opened the door of the godown and narrated the incident to her husband, sister Jahangirbi and the watchman. They wanted to leave that place and go away. For that purpose, Meheboobi, Jahangirbi and their husband alongwith children went towards the road to go somewhere else. While they were going towards the road, Ramesh Gavali and the present appellant again came there and assaulted her husband. Thereafter they confined herself, her husband Mohammed and the watchman in the godown and closed the door from outside. They took Jahangirbi in her hut. Jahangirbi shouted for help and asked them to leave her. Ramesh Gavali as well as the appellant committed rape on Jahangirbi. After the incident Jahangirbi came out and also told that she was raped by Ramesh Gavali and the present appellant. After that they went to the police station, where Meheboobi lodged her report Exhibit 6. 6 P.W.2 Jahangirbi also deposed the same facts. According to her, she was sleeping in her hut alongwith her children. Ramesh Gavali entered into hut of her sister Meheboobi and sat on her chest and gagged her mouth. At that time, Meheboobi was shouting for help. When Jahangirbi, her husband and watchman went to that hut, culprits confined them in a godown and thereafter, Ramesh Gavali committed rape on Meheboobi. She also deposed that after the incident when they were 7 leaving that place, the appellant and Ramesh Gavali obstructed them and brought them back to the godown where Ramesh Gavali locked Meheboobi , her husband and watchman of the godown and he dragged Jahangirbi in her hut. She deposed that firstly the present appellant committed rape on her and thereafter, Ramesh Gavali committed rape. After that she also accompanied Meheboobi to police station where she lodged the report. 7 P.W.4 Sitlaprasad Thakur deposed that Ramesh Gavali and the present appellant, who was also known as Matkya used to come around the construction site to remove coconuts from the coconut trees and they used to harass and quarrel frequently with the people who used to work at the construction site. According to him, at about 3 a.m. on 5.4.1989, he heard shouts from the hut of Meheboobi and he went towards that side. At that time, he saw that Ramesh Gavali was standing at the door of the hut of Meheboobi with knife in his hand. Meheboobi was then crying. Sitlaprasad deposed that he asked Ramesh Gavali to leave these people and if he wanted money, he would tell the builder to give him Rs.10,000/-. On this Ramesh Gavali slapped him. Thereafter Ramesh Gavali assaulted on the head of Mohammed Shaikh and took him, Jahangirbi and Mohammed Shaikh to the godown and confined 8 them there and latched the door from the outside. According to him, at that time, he had not seen anybody alongwith the Ramesh Gavali. For about half an hour they were confined. Meheboobi came and unlatched the door and told them that she was raped by Ramesh Gavali. She also told that there was companion of Ramesh Gavali and that after giving threats against making any noise, Ramesh Gavali and his companion left the place. According to him, Jahangirbi had told that companion of Ramesh Gavali was Matkya and she also pointed out that accused was running away alongwith Ramesh Gavali but according to him before he could reach, both the accused had run away. 8 P.W.4 also deposed that Mohammed Shaikh, Meheboobi and Jahangirbi decided to leave that place and go elsewhere as they did not want to work at that site anymore. When they want to fetch taxi, Ramesh Gavali came back. He heard his shouts. At that time Sitlaprasad Thakur was in the godown. He heard Ramesh Gavali threatening Mohammed Shaikh and Jahangirbi that they would be killed if they tried to run away. Thereafter Ramesh Gavali locked Mohammed Shaikh in the godown. Sitlaprasad and Meheboobi as well as their children were already inside godown. Jahangirbi was however outside. After half an hour Jahangirbi opened the door of the godown and told that Ramesh 9 Gavali and his companion Matkya had committed rape on her. After that Ramesh Gavali came there and threatened to kill them if they would lodge report with the police. According to him, after that Ramesh Gavali went away. Even though in the examination-in-chief Sitlaprasad did not specifically state that he had seen the present appellant, in the cross- examination for the accused, he specifically depose that he had seen the present appellant Matkya running away alongwith Ramesh Gavali. 9 In the F.I.R., Ex.6 as well as in the statement of P.W.2 Jahangirbi and P.W.4 Sitlaprasad, it was not specially stated that the present appellant was known as Matkya, though in the F.I.R. and police statement of P.W.2 Jahangirbi, it was stated that Ramesh Gavali and his companion had committed rape. There was no reason for these two women to falsely implicate the present appellant. 10 Evidence of P.W.6 Pradip Surve, who was Special Executive Magistrate reveals that on 8.4.2009 at 4 p.m. he was called at D.N.Nagar police station to hold test identification parade. He selected room for holding test identification parade and also selected dummies. Panch witnesses were called. He also deposed that identifying witnesses were made to sit in a room from where they could not see the suspects being brought from the lock-up room to the room where the test 10 identification parade was held. Then the accused/appellant Suresh Rajapure was brought from the lock-up room to the room where the test identification parade was going to be held and he was asked to stand in the line with the dummies at any place as per his choice. During the test identification parade, Jahangirbi identified him as the culprit. After that Jahangirbi was taken out and then accused was told that if he wanted, he could change his clothes as well as position but he refused to change the position as well as his clothes. Thereafter another witness Mehboobi was brought to the room. She also identified the present accused/appellant. Same procedure was followed for the identification by Sitlaprasad as well as Mohammed Shaikh. Each of them identified the present appellant as one of the culprits. Accordingly, he prepared memorandum of test identification parade vide Ex.20. It was also signed by the panch witnesses. Thus, it is established that Meheboobi as well as Jahangirbi and also Sitlaprasad identified the appellant as one of the culprits. Mohammed Shaikh was not examined as witness because he had suffered some accident and was unable to move and at the time of trial he was living in U.P. 11 Evidence of P.W.3 Dr. Shivraj Daund, who examined Jahangirbi as well as Meheboobi and issued necessary medical 11 certificates. Both were aged about 35-40 years and also having children, therefore, no injury marks were found on their person. Medical evidence in respect of both of them could not be of much help. Accused was arrested and examined on 8.4.1989. His medical report is also not of much help. His medical report shows that sigma was absent but that itself can not be of much assistance particularly because incident of this case had taken place on 5.4.89 early in the morning while he was examined on 8.4.89. C.A.Report Ex.10 shows that human semen was detected in the vaginal smear of Jahangirbi. Ex.12 is C.A.Report pertaining vaginal smear of Meheboobi and it shows that no semen was detected. As per C.A.Report Ex.25 on the petticoat of Meheboobi human semen was detected. Thus, C.A.Reports Ex.10 and 25 provide some corroboration to the testimony of Jahangirbi and Meheboobi as semen was detected in the vaginal smear and petticoats of these two women respectively. At the same time, it should be borne in mind that presence of semen itself cannot be a strong evidence particularly because blood group of semen could not be detected and also because both the women were married and were living with their husband. 12 In view of the above circumstances, even if the medical report and C.A.Report do not provide much assistance, I find that there is 12 no material on record on the basis of which evidence of Meheboobi and Jahangirbi could be discarded. They had no reason to falsely implicate the present appellant. Even though the accused had taken a plea that he is falsely implicated by the police persons because they used to take away flower and bouquets without making payment and he used to object, still there is no reliable evidence for this purpose. He had also taken plea of alibi that he was not present at the scene of offence on the date of incident but no evidence was produced to establish the same. Evidence of these two women is supported to some extent by P.W.4 Sitlaprasad, who was watchman. The learned counsel for the appellant contended that P.W.2 Jahangirbi and Sitlaprasad stated that companion of Ramesh Gavali was known as Matkya and accused is the same person but neither in the F.I.R. nor in the police statement, he was referred to as Matkya. It is true that in the F.I.R. and the police statement, he was referred to as associate of Ramesh Gavali and his name was not given. If Test Identification Parade would not have been held, matter would be different but in the present case almost immediately after the arrest, T.I.Parade was held and all the four witnesses of the incident identified the present appellant as one of the culprits and associate of Ramesh Gavali. Therefore, I do not see any reason to disbelieve their evidence. 13 13 Taking into consideration the facts and circumstances, accused could be held guilty for the offence of gang rape but somehow trial Court convicted him for the offence under Section 376 r/w section 109 in respect of rape of Meheboobi by Ramesh Gavali while the appellant was convicted for the offence under Section 376 r/w section 34 of the I.P.C. for the rape on Jahangirbi. Had he been convicted for the offence of gang rape minimum sentence, which could be awarded, would be imprisonment for 10 years but the trial Court awarded sentence of R.I. for seven years. Anyhow, there is no appeal from the State for enhancement of the sentence but at the same time taking into consideration the circumstances in which the offence was committed, it can not be said that sentence of imprisonment awarded was excessive, therefore, there is no scope even to interfere in the quantum of sentence awarded by the trial Court. 14 For the aforesaid reasons, appeal stands dismissed. The accused/appellant to surrender to undergo remaining sentence of imprisonment. (J.H. BHATIA,J.)