sat 1 crim.appeal 273-2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 273 OF 2008 Hanumant Sabanna Malbari ) Aged about 40 years having address ) At Marwadi Chawl, Room No.3, ) Bardan Galli, Gangleshwar Road, ) Mumbai-400 084 ) And presently in judicial custody at ) Nashik Central Jail )...Appellant (Orig.Accused) vs. 1. The State of Maharashtra )...Respondent 2. The Inspector of Police, ) Saki Naka Police Station ) Mr.Nitin Fatangare for the Appellant. Mr.P.S. Hingorani, APP for the State. CORAM : M.L. TAHALIYANI, J. DATED : DECEMBER 9, 2011 ORAL JUDGMENT :- 1 This appeal impugns the judgment and order passed by the learned Additional Sessions Judge, Greater Mumbai,on 11th January, 2008 in Sessions Case No.1463/1998. 2 The appellant was tried for the offences punishable sat 2 crim.appeal 273-2008 u/ss. 452 r/w 34 of IPC, 506 II r/w. 34 of IPC and 376(2)(g) of IPC. 3 Case of the prosecution before the trial court was that the prosecutrix (PW 1) Mrs.Sangeeta Janardhan Madan, aged about 30 years was working as a Labourer on the site of one Pandeyseth. Her husband Mr.Janardhan (PW 4), aged 40 years was also working on the same site. They had a child aged about one year. PW 1 and PW 4 along with their child were staying at the site where they were working as a labourers. They were staying in a temporary erected shed made of tin sheets. There were other adjoining sheds of the similar nature on both the sides of shed of the PW 1 and 4. There was no permanent door to the said shed. The small tin sheet used to be kept on the said door during night time for maintaining privacy. 4 The appellant and his associate-wanted accused Suresh were known to PW 1 and 4 as they were also working on the same site. The appellant is stated to be a tempo driver. sat 3 crim.appeal 273-2008 5 The alleged incident had occurred on the night intervening 23rd August, 1998 and 24th August, 1998. The PW 1 and 4 were sleeping in their shed along with their son on the floor. The floor was made of cement concrete (coba). There was a mosquito net for protection from mosquitoes. Both of them were sleeping on two independent mattresses. Their son was sleeping in between them. It is alleged that at about 2 a.m. of 24th August, 1998, the appellant along with said Suresh had forcibly entered the shed of PW 1 and 4. Both of them were having iron rods in their hand. They threatened the PW 1 and 4 both. They asked PW 4 to get up and pick up his child and stand outside. It is alleged that after compelling the PW 4 to stand outside the shed, the appellant had committed rape on PW no.1 on the bed where she was sleeping. The incident lasted for about five minutes and thereafter, the appellant and Suresh left the shed. It is alleged that both of them had threatened the PW 1 and 4 that in case they tell the incident to anybody, they would have to face dire consequences. sat 4 crim.appeal 273-2008 6 PW 1 and 4 met Pandeyseth on next day and matter was reported to police at about 3 p.m. on 24th August, 1998. FIR was registered for the abovestated offences. After registration of offence, the PW 1 was sent for medical examination. Her medical examination was carried out by PW 3 Dr.Shridhar Madhavrao Patil on 24th August, 1998 at about 10.30 p.m. No injuries were found on the private part or any other part of body. Hymen was torn and there were multiple tags and old healed tears. Vaginal smear was collected for being sent to Chemical Analyser. 7 The appellant was arrested. The wanted accused Suresh could not be traced. The clothes of the appellant were seized. He was medically examined. Statements of the witnesses including PW 4 and neighbours were recorded. 8 No semen was detected on saree, petticoat and blouse of the prosecutrix. However, one semen stains of about 1 sat 5 crim.appeal 273-2008 c.m. in diameter was found on the pant of the appellant. After completion of investigation, chargesheet was filed in the Court of Magistrate. Case was committed to the Court of Sessions. 9 During the course of trial, charge for the abovestated offences was framed against the appellant. It was explained to him. He pleaded not guilty to all the charges. His defence was of total denial. 10 During the course of recording of evidence, seven witnesses were examined by the prosecution in support of its case. 11 PW 1 is the prosecutrix. PW 4 is her husband Janardhan. PW 3 is the Medical Officer, who had examined the prosecutrix and the appellant both. PW 2 and 5 are the panch witnesses. PW 6 is one of the neighbours of the PW 1 and 4. PW 7 is the Police Officer. sat 6 crim.appeal 273-2008 12 It can be seen from the evidence on record that the prosecution case was mainly based on the evidence of PW 1 and 4. The learned trial court had accepted the evidence of PW 1 and 4 and has convicted the appellant for the offence punishable u/s. 452 of committing house trespass after making preparation for causing assault and hurt. The learned trial court has also found him guilty of gang rape because he was accompanied by wanted accused Suresh and as per Explanation 1 to Section 376, it amounted to gang rape. The appellant has further been convicted for the offence punishable u/s. 506 Part II r/w. 34 of IPC, as according to the learned trial court, the appellant and his associate Suresh both in furtherance of their common intention had committed offene of criminal intimidation by extending threats to PW 1 and 4. 13 It appears from the record and proceedings that Miss Rishi Bhuta was appointed for the appellant. It also appears that at one stage, wife of the appellant was present and she had submitted before the Court that she wanted to change sat 7 crim.appeal 273-2008 lawyer. Therefore, the appeal was being adjourned from time to time. It appears that wife of the appellant had not been able to engage any other lawyer. Since the appellant is in jail for a considerable long time, it was felt necessary to appoint an Advocate for the appellant. 14 Learned Advocate Fatangare was appointed to appear on behalf of the appellant. 15 I have gone through the judgment of the learned trial court and the evidence of witnesses particularly the evidence of PW no.1 and 4. PW 1 has narrated the whole incident in her evidence which is more or less replica of her first information report. She has stated that she was sleeping with her husband (PW 4) in tin shed when the appellant and wanted accused Suresh had come. She had further stated that PW 1 and 4 were threatened by both the culprits and the appellant had committed sexual intercourse with her against her will. Matter was reported to police on next day. It has come in sat 8 crim.appeal 273-2008 her evidence that there are other tin sheds adjoining the tin shed of PW 1 and 4. On one side, there is family of Hasina and other side, contractor Sawant was staying in a tin shed. It is an admitted position that no neighbours were called immediately after the incident. It is also an admitted position that no hue and cry was made either by PW 1 or by PW 4 even after the incident of alleged rape was over. PW 1 has admitted that PW 4 used to drink liquor habitually. Though PW 4 in his evidence has denied that he used to drink liquor and has further denied that he had consumed liquor on the night of incident also, there is ample evidence on record to show that he was drinking liquor daily. 16 The evidence of PW 1 and 4 is to be evaluated in the light of following circumstances :- I) The husband of PW 1 i.e. PW 4 was drinking the liquor habitually. II) He was drunk at the time of alleged incident, III) PW 1 and PW 4 were sleeping on separate mattresses. IV) There were neighbours on both sides of tin shed. sat 9 crim.appeal 273-2008 IV) Neighbours were known to PW 1 and 4 as well as the appellant and the absconding accused Suresh. V) PW 1 did not shout for help either before, during or even after the incident. VI) PW 4 though was standing outside in the corner of the shed, did not make any attempt to call any of the neighbours. VII) No explanation is given as to why the PW 1 and 4 did not seek help of neighbours even after departure of the appellant and Suresh. VIII) FIR is delayed unreasonably. IX) No semen was found on saree or petticoat of the PW 1. There is no evidence that the police had seized the mattress or bed sheet or any other material which was used for sleeping on cement concrete floor. X) No reasonable explanation is given for not collecting that piece of evidence. XI) No injuries were found on any of the parts of the body of the victim (PW 1). 17 Even plain reading of the evidence of PW 1 and 4 would show that the incident must have not occurred in the manner described by PW 1 and 4. However, cross-examination of PW 1 has completely smashed the case of prosecution. The PW 1 in her cross-examination has stated that at the time of sat 10 crim.appeal 273-2008 incident, she was not working with Pandeyseth. She was working with contractor Sawant. The said contractor was staying in the adjoining tin shed. It is not explained either by PW 1 or PW 4 as to why did they think not to go to Sawant immediately after the incident. The conduct of PW 1 and 4 in approaching Pandeyseth, who was their earlier employer, creates some doubt about the correctness of the evidence of PW 1 and 4 both. Sawant had not been examined nor any family members of Sawant had been examined to show that they had heard any commotion in the adjoining tin shed. 18 It is not the case of prosecution that the PW 1 and 4 were totally strangers to the locality and they were not knowing neighbours. It has come in her evidence that she knew her neighbours as she used to talk with them. It has also come on record that some of the neighbours used to sleep outside their tin sheds. The alleged incident had occurred on 23rd August, 1998. At least there were eight persons in the adjoining sheds as per the evidence given by PW no.1. Neither of them had woken sat 11 crim.appeal 273-2008 up due to alleged incident. Considering the nature of the sheds and the way in which the appellant and Suresh had allegedly made their entry in the shed, in normal course, there should have been a big noise and the neighbours should have woken up. Secondly, considering the fact that the appellant and Suresh both were known to the victim PW 1 and her husband PW 4, there was no reason for both of them to be so scared of them that they could not open their mouth. On the contrary, simple entry of these two persons at the dead hours without consent should have created a big quarrel. The conduct of PW 1 appears to be highly suspicious. It does not appear that the incident had occurred in the manner she has described in the FIR and in her evidence. This is very apparent from her own evidence. It is admitted that the noise of quarrel between PW 1 and 4 could have easily been heard by the persons who were residing in the adjoining huts. If the simple talk between husband and wife could be heard in the adjoining hut, then why the threats extended by the appellant and Suresh could not be heard by the persons sleeping in the adjoining sheds. sat 12 crim.appeal 273-2008 19 Apart from this what is noted is that no semen was found on saree and petticoat though they were sent for chemical analysis. It is not the case that they were washed. Alleged intercourse was committed after lifting saree of PW 1. One stain of semen on pant of the appellant would not establish that the appellant had intercourse with the PW no.1 much less the forcible sexual intercourse. The manner in which the incident had occurred would have definitely left lot of stains of semen on saree, petticoat and the bedding of PW 1. Not finding of semen on her cloths and failure on the part of police to seize bedding indicate that there is every possibility that story was manipulated. 20 What is pertinent to note here is that PW 1 knew the appellant and said Suresh by name and by face. She did not know their address. However, their full addresses are written in the FIR for which PW 1 was unable to give any explanation. She has been cross-examined on the aspect of this case. She has sat 13 crim.appeal 273-2008 admitted that she did not know anything except the names of appellant and said Suresh. Though at one place PW 1 has stated that incident lasted for five minutes, she had later on stated that the appellant and the Suresh had been abusing them for about one hour. They threatened PW 1 and 4 in lower tone. This evidence of PW 1 is not acceptable because it appears to be an improvement made by the PW 1 and as stated earlier, at one place, PW 1 states that the incident lasted for five minutes, at another place, she states that the appellant and other accused abused them for one hour and at third place, she has stated that culprits were inside their house for about 10-15 minutes. She has changed her version during the course of cross-examination on more than one occasions. Once it was stated that the neighbours were made aware of the incident in the morning. Later on she has improved that she had contacted neighbours on the same night. She has stated that during the same night, she had narrated the incident to Padma and Hasina. PW 6 Padmini Shravan Shinde has stated that PW 1 has told her in the morning that two to three persons had entered her hut. sat 14 crim.appeal 273-2008 21 It also appears from the evidence of PW 1 that there was there was darkness in the shed. She lit kerosene lamp after arrival of the appellant and said Suresh. This evidence of PW 1 also does not appear to be correct. It has come in her evidence that temporary door of tin shed was removed by hitting a kick. In the circumstances, the attention of the witnesses would have been normally diverted to the noise of door. Kerosene lamp could not be lit like an electric power lamp. Naturally the witnesses would have bothered to see as to how why the door was removed. The whole conduct of PW 1 appears to be suspicious including this part of evidence. If the incident had lasted for five minutes only in which PW 1 and 4 were threatened and PW 4 was asked to stand outside and at the same time, PW 1 was raped by the appellant, the evidence of PW 1 that she lit the lamp does not appeal to the reason. 22 As far as location of spot is concerned, the evidence of PW 1 and 4 is similar. There is no dispute that there sat 15 crim.appeal 273-2008 were neighbours on both the sides of the shed. There is no dispute that the appellant and Suresh were known to PW 4 also. PW 4 has also described the incident in the manner described by PW no.1 He has, however, clearly stated that the incident was disclosed to Padma and Hasina in the morning. This witness has stated in his evidence that he did not shout because he was scared. I have earlier stated that since the appellant and the Suresh were very well known to PW 1 and 4, there was no need for PW 1 and 4 to be so scared to keep mum till the next morning. The normal conduct in such situation in the first place should be to shout immediately, secondly, to inform the neighbours at least after the incident, thirdly, to go to the police station along with the neighbours. Though PW 1 and 4 could not go to the police station in the night being illiterate persons, at least they could have called Sawant who was their employer and was in the adjoining shed. 23 After having carefully gone through the evidence of PW 1 and 4, I am of the view that something very material sat 16 crim.appeal 273-2008 has been suppressed by both the witnesses. I am of the firm view that the incident had not occurred in the manner described by PW 1 and 4. The possibility of consensual sex between the appellant and PW 1 also cannot be ruled out. Since the husband of PW 1 was habitually drinking liquor and he was under the influence of liquor on the night of incident also, the above possibility appears to be one of the possibilities. In any event, it is not necessary for the Court to find out as to what would be other possibility. The duty of Court is to examine whether the charges levelled against the accused are proved by evidence direct or circumstantial. In the present case, the evidence appears to be extremely doubtful and cannot be relied upon. There is danger of serious miscarriage of justice in the event evidence of PW 1 and 4 is accepted. 24 As far as other evidence is concerned, PW 2 – is the panch witness in whose presence clothes of the PW 1 were seized. Spot panchnama was drawn in the presence of PW no.5. PW 6 is one of the neighbours whose evidence does not help the sat 17 crim.appeal 273-2008 prosecution in any manner. PW 3 is the Medical Officer. His evidence in the present case as far as examination of PW 1 is concerned, could not be of much use as PW 1 was married and was having one child. Therefore, she obviously was used to sexual intercourse. The chemical analyser 's reports are negative and do not favour the prosecution case. In fact, there is no proper evidence as to how the articles were seized and how they were preserved and in what manner they were forwarded to chemical analyser. Even if these things are ignored, the report of chemical analyser is negative and it does assist the prosecution in any manner. 25 It appears from the judgment of the learned trial court that the learned trial court has not given much weightage to the portion of cross-examination, which has seriously damaged the prosecution case. In fact, to my mind, the evidence of prosecution witnesses appears to be improbable and not reliable even without reference to cross-examination. As stated earlier, cross-examination has smashed the prosecution case sat 18 crim.appeal 273-2008 totally. In my view, the judgment and order of the learned trial court is erroneous and it, therefore, needs to be set aside. The appeal needs to be allowed. Hence, I pass the following order :- I.The appeal is allowed. The judgment and order dated 11th January, 2008 passed by the Additional Sessions Judge, Greater Mumbai, is set aside. II.The appellant is acquitted of the offences punishable u/ss. 452 r/w. 34 of IPC, 376(2)(g) of IPC and 506 Part II r/w. 34 of IPC. III. He shall be released from the prison immediately, if not required in any other case. 26 Appeal accordingly stands disposed of. (M.L. TAHALIYANI, J.)