1 Cri-Appal-345-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 345 OF 1993 1. Kailas Damodr pagdhare, ) Aged 30 years, Occupation ) Rickshaw Driver. ) 2. Shailesh Vasant Davne, ) aged 30 years, occupation Fisherman.) 3. Naresh Damodar Pagdhare, ) Aged 31 years, occupation Fisherman.) 4. Jayesh Anant Chamre, ) Aged 30 years, occupation Fisherman.) 5. Hemant Babu Ambire, ) Aged 24 hears, occupation Fisherman) 6. Manoj Parshuram Dharkar ) Aged 30 years, occupation Carpenter.) 7. Bharat Kashinath Akre ) Aged 40 years, occupation Fisherman).. Appellants (orig. accused) Verus The State of Maharashtra ) (to be served through the Learned ) Public Prosecutor, High Court, Appellate ) Side, Bombay). )..Respondents Shri Ashish Sawant i/b. S.R.Chitnis, Advocate for the Appellants. Smt. P.P.Bhosale, APP, for the Respondent - State. 2 Cri-Appal-345-93.sxw CORAM: J.H.BHATIA,J. DATE : 22nd December, 2010. JUDGMENT : 1. The Appeal is preferred by all the accused Nos. 1 to 7, who were convicted by the learned II Extra Joint Sessions Judge, Thane, in Sessions Case No.314 of 1987 for the offence punishable under Section 376(2)(g) of I.P.C. for which they were sentenced to undergo R.I. for ten years and to pay fine of Rs. 1,000/- each and for the offence punishable under Section 341 read with Section 34 of IPC, they were sentenced to pay fine of Rs.500/- each. 2. The prosecution case, in brief, is that on 10.10.1986, the prosecutrix Vasanti along with her two friends Vanita Shelar and Damini @ Damayanti had gone to attend Garbha dance during the Navratra festival at Par Naka, Dahanu. At about 1.30 a.m. on 11.10.1986, all these three girls left Par Naka to return to their houses. When they had walked upto the Bank Lane, also known as "Musalman Lane", accused Nos. 1 to 6 came behind them on bicycles while accused No.7 Bharat came there walking. They began to tease Damini by calling her "Batli Batli" and therefore, said Damini ran away to her house. After that accused No.2 Shailesh, accused No.4 Jayesh and accused No.6 - Manoj caught 3 Cri-Appal-345-93.sxw hold of Vasanti, gagged her mouth and started dragging her towards the dark area of the lane. Seeing this, Vanita ran away. However, the remaining accused persons followed Vanita and assaulted her. Accused Shailesh, Jayesh and Manoj fell Vanita on the ground in the dark area of the Musalman Lane. At that time, remaining four accused persons also came there. Accused No.7 Bharat held and pressed her hands against the earth and kept her in supine condition, while accused No.6 Manoj put his hand on her mouth. Then first of all, accused No.2 Shailesh committed rape on her. Thereafter, accused No.1 and accused Nos. 3 to 6 committed rape on her one after another. Somebody was heard shouting "Chor Chor" and therefore, all the accused persons ran away. Thereafter, The prosecutrix went to her house weeping and narrated the incident to her maternal aunt PW-4 Narmada. The prosecutrix went to Dahanu Police Station where, on her report Crime No.248 of 1986 was registered. She was referred to Cottage Hospital, Dahanu, for examination. She was examined by PW-2 Dr. Arjun Shirodkar. The accused persons were also arrested. They were also examined by Medical Officer. The clothes of the prosecutrix as well as accused were seized. Panchnama of the spot of incident was recorded. Some articles were seized on the spot. Muddemal property, blood samples, vaginal swab of the prosecutrix were referred to C.A. After investigation, police filed charge-sheet against all the seven accused persons for the offences under Section 376(2)(g) and 341 and for 4 Cri-Appal-345-93.sxw the offence under Section 354 read with Sec. 34 of IPC in respect of outraging the modesty of Vanita. In due course,the case was committed to the Court of Sessions. PW-3 Vanita did not support the prosecution on material aspects and was declared hostile. After hearing the prosecution evidence as well as defence evidence led by the accused, the trial Court convicted all the seven accused persons for the offence of gang rape as well as under Section 341 of IPC and sentenced as stated above. 3. Heard the learned Counsel for the accused/appellants and the learned APP. Perused the record and proceedings of the trial Court. 4. The evidence of the prosecutrix PW-1 Vasanti, PW-3 Vanita and PW-4 Narmada, who is maternal aunt of the prosecutrix goes to show that the prosecutrix used to reside with her maternal aunt at Mangelwada at Dahanu. PW-3 Vanita was also residing in the same area. PW-1 Vasanti, PW-3 Vanita and one Damini @ Damayanti were friends and they were also of the same age group. As per their evidence, on 10.10.1986 was the 9th day of Navratra festival and during that period, Garbha dances were arranged at Par Naka. As per their evidence, during Navratra festival, every night they used to attend the Garbha dances till 1.30 or 2 a.m. and then they would return home. As usual, at about 10 p.m., PW-1 Vasanti, PW-3 Vanita and Damini left their houses together to attend 5 Cri-Appal-345-93.sxw the Garbha dances at Par Naka. During that night also Garbha dance was over at about 1.30 or 2 a.m. and all these three girls were returning to their houses. Evidence of PW-1 Vasanti shows that when they were returning, she noticed all the accused persons following them. According to her, accused No.2 Shailesh, accused No.4 Jayesh, and accused No.6 Manoj started teasing Damini @ Damayanti calling her "Batli Batli". They followed them right upto their lane. As they were teasing Damini, she ran away. After that accused Shailesh, Jayesh and Manoj caught hold of PW-1 Vasanti by her mouth and hands and dragged her to a corner in the dark. PW-3 Vanita deposed that three boys were following them and they asked Vasanti to go with them and Vasanti accompanied them. She thought that those persons would accompany Vasanti to her house. According to her, she returned home and slept. Vanita was declared hostile because, according to her version before the police, accused Nos. 1, 3, 5 and 7 had chased her and had assaulted her and therefore, she had run away. In that incident, she was also injured. PW-2 Dr. Arjun Shirodkar also proved that on examination he found some injuries on the person of Vanita. Anyhow, evidence of Vanita provides corroboration to the evidence of PW-1 Vasanti to the extent that when these girls were returning home, some boys were following them and three of those boys had taken Vasanti to one side. PW-1 Vasanti deposed that after she was taken to a dark corner, Shailsh, Jayesh and Manoj removed her clothes and had sexual intercourse 6 Cri-Appal-345-93.sxw with her. Then accused No.1 Kailash, accused No.3 Naresh and accused No.5 Hemant came there and they had also sexual intercourse with her one after another. According to her, somebody shouted "thief, thief" and then accused persons ran away. In examination-in-chief, she deposed that accused No.7 Bharat had only held her hands when she was first taken in the corner, but he himself did not commit rape on her. The prosecutrix was cross cross-examined at length. In the cross-examination, she deposed that only accused Jaysh, Shailesh and Manoj i.e. accused Nos. 4, 2 and 6 respectively had dragged her from the road into the dark. Remaining four accused persons came to the spot about 10 to 15 minutes thereafter. In the same para of cross-examination, she deposed that first named three persons had forcible sexual intercourse with her, which lasted for about 15 to 20 minutes. There is a discrepancy in the evidence of prosecutrix in respect of the arrival and role of accused no.7 Bharat. While in the examination-in-chief, she stated that the accused Bharat had caught her hands when she was first taken in the corner, in the cross-examination she stated that she was first taken to the dark corner by accused Shailesh, Manojj and Jayesh and they had sexual intercourse with her, while remaining four persons, including accused No.7 Bharat, came 10 to 15 minutes afterwards and then accused Nos. 1,3 and 5 committed rape on her. Accused No.7 Bharat was not the person who committed rape. If accused No.7 Bharat came along with accused Nos. 1,3 and 5, 10 to 15 minutes after the 7 Cri-Appal-345-93.sxw accused Nos.2, 4 and 6 had taken her to the dark corner of the lane and were already committing sexual intercourse with her, accused no.7 Bharat could not have caught her hands initially when she was felled down. The evidence of the prosecutrix in respect of accused No.7 Bharat does not appear to be consistent and, therefore, it does not inspire confidence about the role played by accused No. 7 Bharat in this incident. 5. PW-1 Vasanti deposed that after the accused persons ran away,she also went to her house. She was weeping and she told her maternal aunt Narmada about this incident. PW-4 Narmada corroborated her fully. The conduct of the prosecutrix in giving details of the incident immediately to her maternal aunt provides corroboration to her testimony. The evidence of these witnesses show that next morning at 9 a.m. they went to the police station where the report was lodged. However, as per the evidence of PW-6 PSI Vinayak Gavli, report Ex.17 was lodged at 13.15 hrs. and immediately she was referred for medical examination. The investigation was immediately taken over by PW-8 SDPO Pradeep Shirsolkar. As per the direction given by the SDPO, PSI Vinayak Gavli referred the prosecutrix to the medical officer for examination. Accused persons were also arrested and they were also referred for the medical examination. 8 Cri-Appal-345-93.sxw 6. Evidence of PW-2 Dr. Arjun Shirodkar reveals that on 11.6.1986, prosecutrix Vasanti was brought to the Cottage Hospital, Dahanu for medical examination by PSI Gavli. There was history of rape by six persons at 2 a.m. on 11.10.1986. On examination, he observed as follows :- "(1) Two linear vertical abrasion 4" each left arm laterally. (2) Multiple linear abrasions, about 5 to 6, of 2" long on left glutal region (buttocks) (3) Redenning and congestion of lower part of labia minora (private part). hymen with old healed tear, no vaginal injury, no bleeding, uterus normal sized." In the cross-examination, he clarified that as there was old tear, there need not be any bleeding. According to him, hymen tear was more than a week old, which means that the hymen was not torn at the time of alleged rape during that night. He also explained that torn hymen is not necessarily indication that the girl had sexual intercourse earlier or that she was habitual to sexual intercourse. It could be possible because of active outdoor sports. The prosecutrix denied that she had sexual intercourse with anybody prior to this incident. It is material to note that on behalf of the accused, it was suggested that she had sexual relations with one boy and that was not liked by the accused persons. Accused had protested on the 9 Cri-Appal-345-93.sxw ground that it would bring bad name to the locality, because the accused persons were also residents of the same locality. However, this suggestion was turned down. The presence of two linear vertical abrasions on the left arm laterally and multiple linear abrasions on her buttocks provides corroboration to her testimony that she was forced to lie on the ground in that lane and she was subjected to sexual intercourse. Redenning and congestion of lower part of labia minor also provides corroboration to her testimony. It is true that there were no other injuries on her person nor there were any other injuries in or around her private part. It should be noted that as per her evidence, her hands and legs were caught hold of, her mouth was also gagged by putting a hand and in that condition she was raped. Initially, there were three accused persons who committed rape and they were followed by three others. Accused Nos. 1 to 6 were the young men aged 24 - 25 year, while the prosecutrix was the girl aged about 18 years at the time of incident. It was impossible for her to offer any resistance when she was caught and held down by three youths in the age group of 24-25 years.If she would have been attacked by one person, she could have offered some resistance and some struggle could ensue. It could result into some injuries on different parts of her body. The manner and the circumstances in which she was attacked at a time by three young men, it was impossible for her to offer any resistance and therefore merely because there were no other injuries nor her clothes were found torn, it cannot 10 Cri-Appal-345-93.sxw be held that she was not subjected to sexual intercourse. 7. Evidence of PW.2 Dr. Arjun Shirodkar shows that accused No.1 Kailash, accused No.2 Shailesh, accused No.3 Naresh and accused No.4 Jayesh were also referred to him for medical examination on 11.10.1986 at 7.50 p.m. He examined them and found that each of them was fit to have sexual intercourse. This part of his evidence is not disputed by the accused. 8. It appears that some of the documents were admitted on behalf of the accused even without examination of the witnesses. Panchnama Ex.37 shows that on 11.10.1986 at 13.35 hrs. the prosecutrix produced her clothes consisting of a frock, petti-coat and underwear as well as one painjan from her one foot. Exhibit 38 is the panchnama about seizure and clothes of accused Nos. 1 to 4. Exhibit 39 is seizure panchnama about clothes of the accused Nos. 5 and 6. The evidence of PSI Vinayak Gavli also shows that he had requested the medical officer to collect the blood samples of the accused persons as well as of prosecutrix when the vaginal swab etc. were collected at the time of medical examination. Evidence of PW-8 SDPO Pradeep Shirsolkar shows that on 11.10.1986, the victim had shown spot of incident and from the spot he seized one painjan, a piece of cloth, two Dandia sticks and handkerchief as per 11 Cri-Appal-345-93.sxw panchnama Ex.66. It is to be noted that PW-5 Shabbir and PW7 Champakal, who were the witnesses did not support the prosecution and were declared hostile. 9. Evidence of PW-6 PSI Gavli shows that he referred the muddemal property to C.A. with his covering letters Ex. 46 & Ex. 57. In response to the same, C.A. reports were received. As per the C.A. report Ex.58, the blood group of accused No.2 Shailesh, accused No.4 Jayesh and accused No.6 Manoj was of `O'. Blood group of accused No.1 Kailash, accused No.3 Naresh, and accused No.5 Hemant was of "B" and the blood group of accused No.7 was "A". As per C.A. report, Ex.47, on the frock, petti-coat and painjan of the prosecutrix blood stains were found. Some semen stains were also found on the said clothes. The semen stains were of "A", "B" and "O" Groups. Some blood stains were also found on the T-shirt and pant of accused No.1, on the full-pant and underwear of accused NO.4 and on the underwears of accused Nos. 2, 3, 5 and 6. C.A. report Ex.47 reveals that earth and painjan Ex.8, which was seized from the person of prosecutrix, tallied with sample of earth Ex.5 and the painjan Ex.4 seized from the spot of incident. Thus, C.A. report provides corroboration to the testimony of prosecution that the incident of rape had taken place at the spot of incident shown by her. During the incident, one of her painjan was broken and had fallen down . That painjan along with plain earth from the spot were seized. The remaining 12 Cri-Appal-345-93.sxw painjan, which was on her foot, was seized from her along with her clothes and the fact that said painjan and earth of that painjan tallied with the painjan and the earth seized from the spot goes to show that the incident had occurred at the said spot of incident. 10. Taking into consideration the prosecution evidence in its totality, it appears that even though the prosecutrix had old tear of hymen, which might be about one week old according to the medical officer, her evidence is fully corroborated by the circumstantial evidence to show that she was raped by a number of persons in the dark corner of the Musalman Lane during that night. Even though as per medical evidence, she was aged 14-16 years, from the School Leaving Certificate Ex.44, it appears that she was born on 5.11.1968 and therefore on 11.10.1986 when the incident occurred, she was aged above 18 years. However, the age of the prosecutrix is not relevant because it is nobody's case that she was consenting party. She had last menses about 20 days before the incident. Therefore, the blood found on her clothes as well as clothes of the accused could not be menstrual blood. It is possible that when she was subjected to sexual intercourse by those young men, some bleeding might have taken place though except the redenning and congestion of lower part of labia minora no other injury to private part could be found. I have already pointed out that in view of the 13 Cri-Appal-345-93.sxw circumstances in which the offence was committed, there was least possibility of struggle and resistance and therefore there could not be any injuries either on her legs, breast or other parts of body nor there was any possibility of her clothes getting torn. The injuries on her left arm and on the buttocks go to provide corroboration to her story that she was subjected to sexual intercourse. According to her, out of 7 accused persons, six persons i.e. accused Nos. 1 to 6 subjected her to sexual intercourse and their semen of "B" and "O" Groups were found on her clothes. Semen of "A" group was also detected on her clothes. However, she stated that accused NO.7 Bharat, whose blood group is "A" had not raped her. Therefore, Bharat cannot be held guilty.The presence of semen of different groups on her person also go to show that she was subjected to sexual intercourse by more than one person. This also provides corroboration to her testimony against these accused persons. 11. Accused persons and the prosecutrix were residing in the same locality and therefore, all the accused were known to the prosecutrix even by names and she gave names of the accused persons immediately after the incident to her maternal aunt Narmada and also the FIR. Even the accused persons did not challenge the identification of them by the prosecutrix because they were residents of the same area. In fact, the accused persons tried to contend that to 14 Cri-Appal-345-93.sxw protect the honour of that locality, they had protested sexual relationship of the prosecutrix with another boy and therefore she had falsely implicated them in this case. Anyhow, I find no substance in that contention. 12. On behalf of the accused, DW-1 Dr. Gopal Ambekar, a retired Civil Sugeon,was examined. He was holding Degree of Master of Surgery. According to him, in case of recent tear of hymen, there is bleeding and the margins of hymen will be bruised and tender. According to him, if the girl aged about 14-18 years is ravished by half a dozen persons, there will be multiple tear of hymen and the vagina would be contused. The medical certificate Ex.29 was shown to him. According to him, there was no evidence of recent rape and mere redening and congestion of lower part of labia minora was not the evidence of rape. In the cross-examination, he admitted that injuries to labia minora and labia majora are most important aspects to infer whether there was any rape. In the present case, a stated earlier, the prosecutrix was felled down on the ground' her legs and hands were caught hold of by some accused persons; her mouth was also gagged she was not in a position to offer any resistance as she was caught by two young men aged 24-25 years and third was committing rape. Therefore, there could be least possibility of any injuries on her person and as her legs were also caught, the act of the accused could be smooth without causing much injury. If the hymen was 15 Cri-Appal-345-93.sxw already torn prior to the incident, the question of fresh tear would not arise. The redening and congestion of the labia minora suggests that she was subjected to sexual intercourse possibly by more than one person. 13. Taking into consideration the evidence in totality, the prosecution has satisfactorily established beyond reasonable doubt that the accused Nos. 1 to 6 had committed rape on the prosecutrix and it amounted to gang rape. I do not see any reason to interfere in the conviction and the sentence awarded to the accused Nos. 1 to 6 which is the minimum prescribed by law. As far as accused No.7 is concerned, the evidence of the prosecutrix about him does not inspire confidence. She admits that he had not subjected her to sexual intercourse. Her evidence about th time at which he reached there and caught her hands is also not consistent. Therefore, benefit of doubt could be given to accused No.7 Bharat. 14. For the aforesaid reasons: (1) The Appeal of accused Nos. 1 to 6 against the conviction and sentence is hereby dismissed. (2) However, the Appeal to the extent of accused No.7 -Bharat Kashinath Akre is allowed. The impugned order of conviction and 16 Cri-Appal-345-93.sxw sentence against accused No.7 Bharat is hereby set aside and he is acquitted of the charges. (J.H.BHATIA,J.)