AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.42 OF 2005 1. Navab Ansar Shaikh, R/o. Kamote Diesel Company, Sector No.12, Navi Mumbai, Original R/o. Gram Sitalwadi, Post Peroliya Bazar, Police Station Kaliya, Dist. Narail, Bangladesh. ) ) ) ) ) ) 2. Mintu Ilyas Shaikh, R/o. Village Shiravne, Rajendra Patil Chawl, Navi Mumbai, Original R/o. Gram Sitalwadi, Post Peroliya Bazar, Police Station Kaliya, District Narali, Bangladesh. ) ) ) ) ) ) 3. Azgar Farid Shaikh, R/o. Kamote Diesel Company, Sector No.12, Navi Mumbai, Original R/O. Post Hidiya, Police Station Abhaynagar, Dist. Jaisor, Bangladesh. ) ) ) ) ) ) ... Appellants (Original Accused 1 to 3) Versus State of Maharashtra ) .... Respondent (Orig. Complainant) Mr. P.S. Mahimkar for appellants (original accused 1 to 3). Ms. V.R. Bhonsale, A.P.P. for the State. AJN 2 ALONG WITH CRIMINAL APPEAL NO.862 OF 2008 Kausar Hajrat Dafadar, R/o. Village Belapur, Zopadpatti near Railway track, Navi Mumbai, Original R/o. Post Gramkolaruva, Police Station Satkhira, District Jaisor, Bangladesh. ) ) ) ) ) ) ... Appellant (Orig. Accused 4). Versus State of Maharashtra ) .... Respondent (Orig. Complainant) Mr. S.A. Shaikh for appellant (original accused 4). Ms. V.R. Bhonsale, A.P.P. for the State. ALONG WITH CRIMINAL APPEAL NO.645 OF 2005 State of Maharashtra ) .... Appellant (Orig. Complainant) Versus Nawab Ansar Shaikh & Ors. ) ... Respondents (Orig. Accused 1 to 4). Ms. V.R. Bhonsale, A.P.P. for the appellant/State. Mr. P.S. Mahimkar for respondents 1 to 3 (original accused 1 to 3). AJN 3 Mr. S.A. Shaikh for respondent (original accused 4). CORAM : SMT. RANJANA DESAI & R.Y. GANOO, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 21ST AUGUST, 2008. DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 26TH SEPTEMBER, 2008. JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. The appellants in Criminal Appeal No.42 of 2005 are original accused 1 to 3 respectively and appellant in Criminal Appeal No.862 of 2008 is original accused 4 and they shall be referred to as “A-1”, “A-2”, “A-3” and “A-4” for convenience, in this judgment. They were tried in the Court of Second Ad-hoc Additional Sessions Judge, Thane in Sessions Case No.261 of 2003 for offences punishable under sections 302, 326, 342, 363, 365, 376, 506 read with section 34 of the Indian Penal Code (for short, “the IPC”) and under rules 3(A) and 5 of the Passport Act (Entry into India) Rules, 1950. AJN 4 2. By the impugned judgment and order dated 27/10/2004, learned Second Additional Sessions Judge convicted all the accused for the offence punishable under section 302 read with section 34 of the IPC. He sentenced each of them to suffer RI for life and to pay fine of Rs.1000/- in default, to suffer RI for 3 months. The accused were also found guilty of the offence punishable under section 326 read with section 34 of the IPC. Each of them was sentenced to suffer RI for five years and to pay a fine of Rs.500/- in default, to suffer RI for one month. The accused were also convicted for the offence punishable under section 342 read with section 34 of the IPC. Each of them was sentenced to suffer RI for six months and to pay a fine of Rs.500/- in default, to suffer RI for one month. The accused were also found guilty of the offence punishable under section 363 read with section 34 of the IPC. Each of them was sentenced to suffer RI for five years and to pay a fine of Rs.1000/- in default, to suffer RI for three months. The accused were also convicted for the offences punishable under section 365 read with section 34 of the IPC. Each of them was sentenced to suffer RI for five years and to pay a fine of AJN 5 Rs.500/- in default, to suffer RI for one month. The accused were also found guilty of the offence punishable under section 376 read with section 34 of the IPC. Each of them was sentenced to suffer RI for ten years and to pay fine of Rs.1000/- in default, to suffer RI for three months. The accused were also found guilty of the offence punishable under section 506 read with section 34 of the IPC. On that count, each of them was sentenced to suffer RI for six months and to pay a fine of Rs.500/- in default, to suffer RI for one month. The accused were also found guilty of the offence punishable under Rule 6(a) of the Passport (Entry into India) Rules 1950. On that count, each of them was sentenced to suffer RI for two months and to pay fine of Rs.100/- in default, to suffer RI for eight days. Substantive sentences were ordered to run concurrently. The said judgment and order is impugned by the accused in the appeals filed by them. In the appeal filed by the State of Maharashtra, the State of Maharashtra has prayed for enhancement of the sentence. 3. It will be advantageous to begin with the facts of the case as AJN 6 stated by the prosecutrix PW-1 Beauty Sajan Shaikh (hereinafter referred to as “Beauty”). According to Beauty, at the material time, she was residing with her father Sajan Shaikh at Pandurang Naik chawl at Village Bonkode, Navi Mumbai. Her father was working as a labourer in N.R.I. Complex, Delhi Public School. His duty hours were from 8.00 a.m. to 8.00 p.m. Her brother Khajan was doing labour work at Manoj Construction, Sanpada. He used to go for work at 7.00 a.m. and used to come back at about 7.00 p.m. Beauty was working as bar dancer at Sangam Bar, Rabale. She used to go for work at 7.00 p.m. and used to come home at 4.00 a.m. on the next day. On 28/5/2003, her brother Khajan had returned from his work at about 7.00 p.m. She went for her work. She came home on 29/5/2003 at about 4.30 a.m. She knocked at the door of her house. It was locked from inside. A-2 opened the door. He pressed her mouth by his hand and took her inside the house. Thereafter, he switched off the light. She shouted. A-1 and A-3 were also present in her house. There was one more person, whose name she could not remember. She identified him in the court as the 4th accused. All the four accused tied her mouth AJN 7 with a piece of cloth. They also tied her hands and legs. According to her, A-2 told her that her brother was killed and if she shouts, she would be killed. She could not see her father in the house. She saw her brother Khajan lying in the kitchen with his neck, face and both legs tied with cloth. Blood was oozing from his nostrils. According to Beauty, she knew A-1 to A-3 by names. However, she did not know A-4. Beauty has further stated that A-1 and A-2 made her lie on the floor. Thereafter, A-2 tore her salwar with a blade. A-3 tied both her legs. A-3 then caught her one leg and A-4 caught her other leg. A-2 pulled her hands towards her head. A-1 then removed his pant. He also removed salwar and nicker from the person of Beauty. A-1 also removed her kamij. He removed his underwear and then committed sexual intercourse with her forcibly. According to her, A-1 and A-3 told her that they had murdered her brother Khajan and they had assaulted her father and thrown him on the railway track. A-3 and A-4 again tied her legs. A-1 and A-2 told her that since she had refused to marry A-1, her brother was murdered and her father was assaulted and she was raped by them. While leaving A-2 told her that at 9.00 AJN 8 a.m., they would come with the police and she should tell the police that some unknown person had committed the murder of her brother and assaulted her father. A-3 showed her a knife and threatened her. The accused went away after locking the door of the house. After their departure, Beauty released herself. She wore her clothes. She dashed against the door. It was a folding door and due to the dash, it opened. She then went to the house of one lady, who was working with her at Sangam bar. That lady used to reside in the adjacent house. She narrated the incident to her. She then went to the police station. The police came to her house. She took the police to the house of A-2. It was locked from outside. The police broke open the lock and entered inside. Her father was lying on the floor in an injured condition. He had sustained severe injuries on his person. He was alive. The police took her father to the hospital for treatment. She came back to the police station and lodged her complaint, which is at Ex-11. It was recorded by PW-10 API Dere. The police then referred her to the hospital for examination. On the basis of her complaint, investigation was started. The accused came to be arrested. On AJN 9 completion of the investigation, the accused were charged as aforesaid. 4. In support of its case, the prosecution examined 16 witnesses. The prosecution case basically rests on the evidence of Beauty and her father, the injured witness PW-4 Sajan Shaikh. The accused pleaded not guilty to the charge. According to the accused, they were falsely involved by the police. After perusing the evidence on record, learned judge convicted the accused as aforesaid and hence, these appeals by them. The State is seeking enhancement of sentence in its appeal. We have heard learned counsel appearing for the parties and with their assistance, we have gone through the record. 5. Mr. Mahimkar, learned counsel for A-1 to A-3 submitted that the prosecutrix Beauty's evidence is replete with omissions and contradictions and, therefore, learned Judge erred in placing reliance on it. Beauty has omitted to give A-3's name to the police. She has not stated before the police that A-1 told her that because AJN 10 she refused to marry him, her brother was murdered; her father was assaulted and she was raped. She has not stated before the police that the accused told her that they had killed her father and thrown him on the railway track. She has, therefore, made improvements in her evidence. Mr. Mahimkar pointed out that it is the case of Beauty that the accused locked her in her house and ran away; she dashed against the door; the door opened and she came out. Mr. Mahimkar submitted that this story is inherently improbable. The spot panchnama (Ex-49) does not show that the lock of the door was broken. Mr. Mahimkar submitted that Dr. Kadam who has examined Beauty has not given a definite opinion that she was raped. Mr. Mahimkar submitted that identification parade was not held according to the guidelines laid down in the Criminal Manual inasmuch as the room where the parade was held was not properly situated; the accused were brought by the jail staff; the Special Executive Magistrate did not tell by which route they were brought and no advocate was kept present during the parade. Therefore, identification parade evidence must be discarded. Besides, submitted Mr. Mahimkar, it is apparent from AJN 11 the evidence of Beauty that all the accused were shown to her at the police station. Her identification of A-3, therefore, cannot be relied upon. Mr. Mahimkar pointed out that the investigating officer has admitted that no arrest panchanama was prepared. PW-6 Yadav has acted as a pancha to several panchanamas under which clothes of the accused are stated to have been recovered at their instance. He is a habitual pancha and, therefore, his evidence cannot be relied upon. Mr. Mahimkar submitted that there is no credible evidence on record to establish the guilt of the accused and, therefore, they deserve to be acquitted. 6. Mr. Shaikh learned counsel for A-4 adopted the arguments of Mr. Mahimkar. He submitted that so far as A-4 is concerned, there is absolutely no evidence on record to connect him with the crime in question. Beauty as well as her father failed to identify him in the identification parade. They have identified him only in the court. It is difficult to rely on such identification. Mr. Shaikh submits that A-4 must therefore, be acquitted. AJN 12 7. Mrs. Bhonsale learned A.P.P., on the other hand, submitted that Beauty' s evidence inspires implicit confidence. Dead body of her brother was found in the same house where she was raped. Her father was found locked in the house of A-2. Chemical Analyzer's report supports the case of rape and murder. Beauty's evidence is corroborated by the evidence of her father. Learned A.P.P. submitted that the prosecution has established its case to the hilt and, therefore, no interference is necessary with the impugned judgment and order. 8. In this case, evidence of prosecutrix Beauty is of prime importance. If this court finds that her evidence inspires confidence, it need not insist on corroboration to her evidence. Conviction can be based on the prosecutrix' s evidence if it is found to be truthful. In Dinesh v. State of Rajasthan, (2006) 3 SCC 771, the Supreme Court considered the nature of the evidence of the victim of sexual assault. The Supreme Court observed as under : AJN 13 “In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self- inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sexual offence is entitled to great weight, notwithstanding the absence of corroboration. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. State of Rajashtan, AIR 1952 SC 54 were : “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge,...” 9. In State of Karnataka vs. Raju, (2007) 11 SCC 490, the Supreme Court was again considering how the evidence of the AJN 14 rape victim has to be appreciated. We may reproduce the relevant observations of the Supreme Court : “It needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.” 10. Rape victim is, therefore, like an injured witness. Her testimony can be relied upon even without corroboration if it inspires confidence. The court need not insist on corroboration if its judicial conscience is satisfied that the prosecutrix is telling the truth. The court may seek corroboration only to lend assurance to the prosecutrix's case but that does not mean that the prosecutrix's case must be thrown overboard as a rule if there is no other corroborative evidence. In a given case, conviction can be based only on the evidence of the prosecutrix. AJN 15 11. We have already reproduced the gist of the evidence of prosecutrix Beauty. Beauty used to work in Sangam bar. Beauty has admitted that Ruby, wife of A-2 was working with her; that she was her friend and that the house of A-2 is near her house. According to her, one can reach there within 15 to 20 minutes by rickshaw. She has admitted that when she was unwell, she had stayed in the house of A-2 for 5 to 6 days. It is obvious, therefore, that she knew A-2 very well. She has stated that she knew A-1 to A-3. However, she has not referred to A-3 in her complaint. It was argued by Mr. Mahimkar that therefore, A-3's involvement is doubtful. We are unable to accept this submission. It is possible that Beauty did not refer to A-3 in her complaint because on account of rape, she was traumatized and dazed. Absence of A-3's name in her complaint, therefore, does not adversely affect the prosecution case. It must be noted that by way of caution the prosecution put up A-3 in identification parade and Beauty identified A-3 in the identification parade. She has however, frankly admitted that she did not know A-4. She has not identified A-4 in the identification parade. Before we proceed further, it is AJN 16 necessary to mention that like Beauty, even PW-4 Sajan Shaikh has not identified A-4 in the identification parade. Beauty and her father identified A-4 only in the court. We are, therefore, of the opinion that A-4 is entitled to the benefit of doubt so far as the offence of murder, rape and other offences (except offence punishable under Rule 6(a) of the Passport (Entry into India) Rules, 1950) are concerned. We shall, at appropriate stage, discuss this at length. 12. So far as the incident of rape is concerned, Beauty has ascribed role to A-1 to A-3 and she has said that it is only A-1 who raped her. According to her, A-1 and A-2 told her that as she had refused to marry A-1, her brother was murdered; her father was assaulted and she was raped. There are certain minor omissions in her evidence which, in our opinion, do not affect the credibility of her evidence. Certain details of the acts of A-1 which preceded the rape have not been stated by her, to the police. In our opinion, Beauty was not expected to give every minute detail as to how the rape was committed, in her FIR. She was obviously shattered AJN 17 because of the rape. She must have been emotionally disturbed. She must have suffered great trauma and, therefore, absence of certain details of the actual role played by A-1 does not discredit her. In the court, Beauty has stated that the accused told her that they had assaulted and thrown her father on the railway track. This fact is absent in her complaint. She has also not stated in her complaint that A-1 had told her that because she had refused to marry him, her brother was murdered and her father was assaulted. In our opinion, these are not material omissions. It is pointed out that Beauty has stated in her evidence as well as in the complaint that after the incident, the accused locked the door and went away and, therefore, her further statement that she dashed against the door and it opened is not truthful. It was argued that panchanama does not show that the lock was broken. We are not impressed by this submission. Beauty has stated that it was a folding door. Even if it is assumed that the door was locked, it was possible for the lock or latch on which it was fitted, to give way because of the force applied by Beauty, who was obviously extremely traumatized and scared. In that state of mind, Beauty AJN 18 must have applied great force. Absence of the fact that the lock was broken in the spot panchanama is at the most a minor lapse or irregularity. In our opinion, this circumstance does not disprove Beauty's case of rape which is established by her cogent, straightforward and honest testimony which does not require corroboration. But, if corroboration is necessary, it is available in ample measure and it lends assurance to her evidence. We shall soon advert to it. In our opinion, her case that on the day of the incident, A-1 to A-3 were inside her house when she came home from work; that they killed her brother and abducted her father and kept him in the house of A-2 is substantiated by the fact that the dead body of her brother was found in the kitchen and her father was found in the house of A-2 with his hands and legs tied with rope and his mouth gagged with a piece of cloth. We shall soon refer to the evidence which supports this part of the prosecution story also. 13. PW-13 is Mehrunbibi, neighbour of Beauty. She used to work in Sangam bar with Beauty. She has stated that on AJN 19 28/5/2003, she, Beauty and one Zarna had been to Sangam bar at 7.00 to 7.30 p.m. and returned home at 4.30 a.m. According to her, Beauty went to her house at about 6.00 a.m She opened the door because somebody knocked at it. She saw Beauty standing outside the door. Beauty was weeping. She has stated that Beauty told her that A-1 and his associates were present in her house; that they had murdered her brother and they had raped her. According to her, she and her husband took Beauty to the police station. This witness has been cross-examined but she has stood firm in the cross-examination. This witness corroborates Beauty. 14. PW-3 is Dr. Sarika Kadam. She was the medical officer attached to N.M.M.C. Hospital, Vashi. On 29/5/2003, Beauty was referred to her for examination. She gave history of forcible sexual intercourse against her will. According to Dr. Kadam, there was no external injury on external genital or other body parts. She has confirmed that she had opined that it cannot be said that sexual intercourse had not taken place in last 24 hours. In the cross-examination, she has stated that she did not find any signs of AJN 20 forceful intercourse on Beauty. She has further stated that she cannot surely tell whether sexual intercourse had taken place or not. Mr. Mahimkar, learned counsel appearing for accused 1 to 3 tried to take help from the opinion expressed by Dr. Kadam. In our opinion, the accused cannot draw any support from the evidence of Dr. Kadam. Though Dr. Kadam has said that she could not surely tell whether sexual intercourse had taken place or not, she has also stated that it cannot be said that sexual intercourse had not taken place in last 24 hours. Dr. Kadam has not expressed opinion that sexual intercourse had not taken place in the last 24 hours. Absence of injuries on Beauty does not mean that she was not raped. It must be remembered that the accused were four in number. They were threatening her. They had tied her and immobilized her. Therefore, she could not have offered any resistance. Since Beauty has, in a straightforward and honest manner, deposed about the rape committed by A-1, and as to how A-2 and A-3 facilitated the commission of rape by A-1, in our opinion, her case cannot be disbelieved even if it is assumed that there is no positive medical AJN 21 evidence suggesting commission of rape. We must also note that the Chemical Analyser's report