1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 609 OF 2005 RAMDHYAN BAIJNATH VISHWAKARMA ) R/o Goregaon (West), MUMBAI ) Presently lodged at Yerawada ) Central Prison, Pune. ) .. APPELLANT Versus STATE OF MAHARASHTRA ) .. RESPONDENT Mr. Abhaykumar Apte, Advocate appointed for appellant Ms. U. V. Kejariwal, APP CORAM:SMT.RANJANA DESAI & R. Y. GANOO, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED :26TH SEPTEMBER,2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:19TH NOVEMBER,2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The appellant was tried in the court of Additional Sessions Judge for Greater Mumbai, in Sessions Case No. 669 of 1998 for offences punishable under Sections 302, 363, 366, 342 and 2 376 (2)(f) of the Indian Penal Code ("IPC" for short). By her judgment and order dated 27/6/02, learned Additional Sessions Judge convicted the appellant for the offences punishable under Sections 302, 363, 366, 342 and 376 (2)(f) of the I.P.C He was sentenced to suffer R.I. for one year, seven years, ten years and to pay fine of Rs.10,000/- and in default to suffer R.I. for two years for the offences punishable under Sections 342, 363, 366 respectively of the I.P.C. The appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer R.I. for two years for the offences punishable under Sections 376 (2)(f) and 302 of the I.P.C. Substantive sentences were to run concurrently. Being aggrieved by the said judgment and order the appellant has approached this court. For the sake of convenience, we shall refer to the appellant as "the accused" in this judgment. 2. Gist of the prosecution case needs to be stated. . PW 1 Shanti Deepchand Pal and PW 2 Deepchand Sumaru Pal were residing at Hanuman Nagar, Kandivali, Mumbai, along with their four children 3 namely Gyanprakash, Surajprakash, Manorma and Shushma. PW 2 Deepchand was a rickshaw driver. He used to drive rickshaw of some person. For that purpose he used to go to Bombay Central and return after two to three days. In 1998 Shushma was five years old. We shall refer to her as "the deceased" for convenience. . Brother of PW 2 Deepchand was residing in the same locality near his house along with his family members which included PW 4 Chandraprakash Devichandran Pal, nephew of PWs 1 and 2. The accused was residing in the same locality near the house of PWs. 1 and 2. The room in which he was residing belonged to his relatives. At the time of the incident the relatives had gone to their village. The accused alone was occupying the said room. According to the prosecution the incident in question took place in that room on 5/5/98 in the afternoon at about 2 p.m. On that day i.e. on 5/5/98 PW 2 Deepchand had gone for work at about 10.00 a.m. The three older children had gone to school. The deceased had gone out to play. After about one hour as the deceased was not to be seen PW 1 Shanti started searching for her. She saw the accused behind her house. She enquired about the 4 deceased with him. The accused told her that she should look for her in the neighbouring houses. She heard a small voice from the room of the accused. The accused locked the room, threw the key in front of her and ran away. She opened the room and found her daughter lying naked on the floor. There was mud in her mouth. She removed it. Then she and her brother-in-law Kevar took the deceased to the Sanchayati Hospital. On the same day the deceased was taken to the K.E.M. hospital. When the deceased was admitted in the hospital message was given to the concerned police station. PW 8 PSI Ombase, who was on duty as station house officer went to the hospital. He recorded the statement of PW 1 Shanti, returned to the police station and prepared station diary. Shushma (the deceased) died on 6/5/98. PW 1 Shanti went to the police station and lodged her F.I.R. which is at Exh.-9. Investigation was set into motion on the basis of this F.I.R. According to the prosecution PSI Nimbalkar and staff went to Uttar Pradesh to trace the accused. They brought the accused to Mumbai on 13/5/98. The accused was then arrested. After completion of the investigation the accused came to be charged as aforesaid. 5 3. In support of its case the prosecution examined as many as 8 witnesses. PW 1 Shanti is the mother of the deceased, PW 2 Deepchand is the father of the deceased PW 4 Chandraprakash is the nephew of PW 2 Deepchand. PW 3 Dr. Kini had examined the accused on 13/5/98. PW 5 Jagdish is the pancha to panchnama Exh.-16 under which the clothes of the deceased were taken charge of. PW 6 is Dr. Siddharth Kamat who had examined the deceased on 5/5/98 at Sanchayati Hospital. PW 7 is Dr. Dhirendra Balsara who did post-mortem on the deceased on 5/5/98. PW 8 is PSI Govind Ombase who was at the relevant time attached to Kandivali (E) Police Station. He is the investigating officer. 4. The accused denied the prosecution case. According to him he was falsely involved in this case by the police. 5. After perusing the evidence on record, learned Sessions Judge convicted the accused as aforesaid and hence this appeal. 6. We have heard at some length Mr. Abhaykumar Apte, learned counsel appearing for the accused. Mr. Apte submitted that there is no credible 6 evidence on record to connect the accused with the crime. He submitted that the prosecution story rests on the evidence of PW 1 Shanti and PW 4 Chandraprakash. There are inherent discrepancies in the evidence of these two witnesses. Whereas PW 1 Shanti states that the accused threw the key of the room in front of her and ran away, PW 4 Chandraprakash has stated that the accused was sitting near water tap. He and PW 1 Shanti were searching for the deceased. At that time the accused handed over the key to him and ran away. Mr. Apte submitted that the lock and the key have not been recovered by the police. Therefore, the entire story that the key was given by the accused to PW 1 and PW 4 is shrouded in suspicion. Mr. Apte urged that since PW 1 and PW 4 contradict each other on major aspects of the prosecution case there is no question of one witness corroborating the other. Morever PW 1 Shanti has, while giving history to PW 7 Dr. Balsara, not named the accused as the perpetrator of the crime. Therefore, it is obvious that the accused is roped in falsely merely on suspicion. Mr. Apte submitted that the case of the accused is that 10 days prior to the incident in question he had gone to his village. This is consistent with the prosecution case that the 7 accused was brought from his village 10 days after the incident. Mr. Apte submitted that apart from PW 1 and PW 4 who are interested witnesses there are no other independent witnesses to depose that the deceased was found in the room of the accused. The prosecution has not even examined the owner of the said room. Mr. Apte submitted that so far as the alleged extra-judicial confession is concerned it is made while the accused was in the custody of the police and hence it cannot be held to be voluntary. No reliance can be placed on it. 7. In support of his submission that the onus is on the prosecution to prove that the chain of circumstances is complete and infirmity in prosecution case cannot be cured by false defence plea, Mr. Apte relied upon the judgment of the Supreme Court in Venkatesan V. State of Tamil Nadu 2008 All SCR 1833. He also relied on Krishnan v. State 2008 SAR (Criminal) 535 to contend that, if in a case based on circumstantial evidence, two views are possible and there is material inconsistency and vital improvement in the testimony of the prosecution witnesses then the accused is entitled to benefit of doubt. Mr. Apte submitted that in this case the accused is entitled 8 to clean acquittal. At any rate he is entitled to benefit of doubt. Mr. Apte urged that in the circumstances the impugned judgment and order of conviction and sentence be set aside and the accused be set at liberty forthwith. 8. Learned APP Ms. Kejariwal on the other hand submitted that admittedly the accused was staying in the room where the deceased was found lying in an unconscious condition. The relatives of the accused had gone to their village. Therefore, finding of the deceased in the room which was in exclusive possession of the accused is significant and lends support to the prosecution case. She submitted that the accused has denied the prosecution case in his statement recorded under Section 313 of the Criminal Procedure Code ("the Code" for short), he has set up a false plea of alibi, he has not offered any explanation as to how the deceased was found in a naked condition in his room. All these circumstances provide missing link in the chain of circumstances. In this connection she relied on Swapanpatra & Ors. v. State of West Bengal, (1999) 9 SCC 242, Liyakat v. State of Uttaranchal, 2008 AIR SCW 1678, Anthony D’souza & Ors. v. State of Karnataka, (2003) 1 SCC 259, 9 Geetha v. State of Karnataka, (2000) 10 SCC 72 and Kuldeep Singh & Ors. v. State of Rajasthan, (2000) 5 SCC 7. Learned APP submitted that extra judicial confession made by the accused to Dr. Kini clinches the case. It being a voluntary statement made without coercion, threat or inducement it can be relied upon. In this connection she relied on Gokaraju Venkatanarasa Raju v. State of A. P 1993 Supp. (4) SCC 191. Learned APP submitted that the failure to seize the lock and key is a lapse in investigation. Since the prosecution case is supported by cogent evidence lapse in investigation which does not reflect on the credibility of the prosecution case should not lead to unmerited acquittal of the accused. In this connection she relied on Dhanaj Singh v. State of Punjab 2004 AIR SCW 1609. Learned APP submitted that the prosecution case is borne out by the evidence of PW 1 Shanti and PW 4 Chandraprakash. . Learned APP submitted that there are minor inconsistencies in the evidence of PW 1 Shanti and PW 4 Chandraprakash which do not discredit their evidence. In this connection she relied on Joseph Poulo v. State of Kerala (2000) 5 SCC 197. Learned APP submitted that after the incident, the accused absconded. He had to be 10 brought from U.P. She submitted that all the circumstances on record point to the guilt of the accused and no other hypothesis but that of the guilt of the accused is possible on the basis of the evidence on record. Learned APP submitted that, therefore, the appeal be dismissed. 9. PW 6 Dr. Siddharth Kamat was at the relevant time attached to Sanchayati Hospital. He has stated that on 5/5/98 the deceased was brought to the hospital by her relatives. Sanchayati hospital papers indicate that she was brought to the hospital by her uncle and the history was given by the uncle. Dr. Kamat has stated that the history given to him was that the deceased was found in an abandoned hut in a state of partial loss of consciousness and difficulty in breathing. There was mud and sand stuffed in her nose and ears. She was in a critical condition. Dr. Kamat has further stated that as the deceased required ventilator’s support, he directed that she be shifted to a hospital which has ventilator support. Dr. Kamat made it clear that he had examined the deceased externally and not internally. Dr. Kamat stated in the cross-examination that no history of sexual molestation was given by the mother of the 11 deceased. 10. PW 7 Dr. Dhirendra Balsara was attached to KEM Hospital at the relevant time. He was present when Dr. Milind Chincholkar did post-mortem on the deceased on 6/5/98. The post-mortem notes and other medical papers are at Exh.-31 Colly. Dr. Balsara has identified the signature of Dr. Chincholkar. Dr. Balsara has stated that on external examination he found the following injuries on the deceased. "a) Brusing on right angle of manditale over the perotid, 4cm x 1 cm. bluish, with bruising blurred margine extending below the pinna, along the mandible for 4 cms. b) Three scratch abrations overlying the bruise 2mm diameter 1/2 cm from each other rounded arigular. c) bruising on left side of face over tempromandibubi joint and paroted, 5 cm x 1 cm blush colour, elogated blurred margine. d) scrach abrasions overlying the bruis on tempromandiburla joint 2mm x 1 mm. e) Multiple rounded irregular imprint abrasious on the upper and lower lips, pin point to 1 mm diameter. No peeling of epithilium. 12 f) Depurrion of the volva and labia majora. g) Lacuation, 1 cm length, longterdually placed in the posterer fourchette, in the middline. h) Tears in the hymen at 4’o’clock, 6 o.clock and 9 o’clock position with raw edges. Severa congested and brusing of vaginal wall". 11. Dr. Balsara stated that the injuries received by the deceased could be the result of any forceful penetration in the vagina by any organ or instrument. In the post-mortem notes the cause of death is shown as cerebral compression and uncal and tonsillai herniation due to generalised severe cerebral edema and severe pulmonary edema due to acute asphyxia as a result of alleged stuffing of nose and mouth with sand, with sexual assault. Dr. Balsara’s evidence and the post-mortem notes and other medical papers establish the prosecution case that the deceased was sexually assaulted. She was raped. 12. The prosecution story rests on circumstantial evidence. PW 1 is the mother of the deceased. She has stated that on the day of the incident her husband had gone for work at 9 a.m. Her three children had gone to the school and the deceased 13 had gone outside the house to play. According to her as she did not see the deceased for about one hour, she started searching for her. While she was searching for the deceased she saw the accused behind her house. She enquired with him. The accused told her that she should look for the deceased in the neighbouring houses. She then held her ear to the door of the room of the accused. She heard a small voice from inside. The accused then locked the door, threw the key in front of her and ran away. She opened the lock, went inside and found her daughter lying in naked condition on the floor. There was mud in her mouth. According to PW 1 Shanti she removed the mud. She and her brother-in-law Kevar then took the deceased to the hospital. She was admitted in Sanchayati Hospital and thereafter taken to the KEM Hospital. Shushma (the deceased) died on 6/5/98. According to PW 1 Shanti she went to the police station and lodged her complaint, which is at Exh.-9. 13. In the cross-examination PW 1 Shanti has stated that the accused was living with his relatives and at the time of the incident he was residing alone in the room where the deceased was found lying. She has further stated that the key 14 was given to her brother-in-law’s son. She has further stated that the key was with her brother-in-law for three months after the incident. She has denied the suggestion that she did not see the accused on that day. She has stated that her brother-in-law and some neighbours had accompanied her to the police station when she went to lodge her complaint. The F.I.R. is at Exh.-9. In the F.I.R. PW 1 Shanti has stated that she had asked the accused as to where her daughter was but he told her that her daughter was not in his house. However, after sometime she heard the wailing of her daughter from the room of the accused , hence she went there. The room was locked from outside. She learnt that the accused had run away after giving key of the room to her nephew Chandraprakash. She then opened the room. She found the deceased lying naked in the room. She has stated that it is the accused who confined the deceased in his room, raped her forcibly, put mud in her mouth, locked the door and ran away and it is because of these acts of the accused that her daughter died. 14. PW 4 Chandraprakash has stated that on 5/5/98 at about 2 p.m. he was in his house. At that time 15 his aunt PW 1 Shanti came there and told him that the deceased had gone to play and had not returned. Thereafter they went to search for the deceased. PW 1 Shanti enquired with the accused whether he had seen the deceased but he answered in the negative. Thereafter the accused went and sat near the common water tap. The accused’s room was locked. He and PW 1 Shanti were looking for the deceased. At that time the accused handed over the key to him and ran away. He gave the key to PW 1 Shanti. She opened the house of the accused. They found the deceased lying naked in the room. In the cross-examination he has stated that he was not with his aunt when she was making inquiries with the accused. 15. This case rests on circumstantial evidence. Therefore, on the basis of settled principles underlying appreciation of circumstantial evidence laid down by the Supreme Court in judgments to which our attention is drawn, we must find out whether the chain of circumstances is complete. The inference of guilt can be only justified, if all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or with guilt of any other person. The 16 prosecution must prove its case beyond reasonable doubt. Infirmity in prosecution case cannot be cured because the accused has taken a false defence or he has not explained incriminating circumstances and denied the prosecution case in toto. It is only when prosecution establishes the various links in the chain of circumstances that false defence or non-explanation of an incriminating circumstance provides the missing link in the chain of circumstances. 16. The prosecution has relied on the handing over of the key of the room where the deceased was found lying naked, by the accused to PW 1 and PW 4, the accused’s exclusive possession of the said room, finding of the deceased in naked condition with mud stuffed in her mouth in the room of the deceased, medical evidence establishing that the deceased was raped, absconding of the accused after the incident, finding of blood stains on the clothes of the accused, extra-judicial confession made by the accused to Dr. Kini, false plea of alibi taken by the accused, and the fact that no explanation is offered by the accused about the finding of the deceased in his room. 17 17. We have already referred to medical evidence. Medical evidence unmistakably establishes that the deceased was sexually assaulted. She was raped. 18. PW 1 Shanti and PW 4 Chandraprakash are the most important prosecution witnesses. We have already given a gist of their evidence. They found the deceased lying in naked condition in the room of the accused after they opened it with the key handed over to them by the accused. Lot of criticism is levelled against their evidence. It is, therefore, necessary to see how far their evidence inspires confidence. 19. It is contended that PW 1 Shanti is not a reliable witness as there are several omissions and contradictions in her evidence. It is contended that though it is the prosecution case that PW 4 Chandraprakash was with her, she has not even referred to him. It is pointed out that PW 1 did not name the accused as the perpetrator of the crime when she gave history to PW 7 Dr. Balsara. She even did not tell PW 6 Dr. Kamat that her daughter was sexually molested. Dr. Kamat was not told that the accused had committed the crime. It is further pointed out that there are two versions 18 as to how the key came into the possession of the prosecution witnesses. According to PW 1 Shanti, the accused locked the room, threw the key in front of her and ran away, whereas according to PW 4 Chandraprakash the room was locked. The accused handed over the key to him and ran away. This variance, it is argued, makes the prosecution story suspect. 20. Undoubtedly there is some variance between the evidence of PW 1 Shanti and PW 4 Chandraprakash. But in our opinion, that does not affect the substratum of the prosecution case. If otherwise the prosecution story is borne out by the material on record, minor discrepancies in the evidence of these witnesses will not persuade us to discard their evidence in toto. Witnesses sometimes get confused and make mistakes. Rustic and illiterate witnesses have to be treated differently. This does not mean that if on vital aspect they contradict themselves allowance should be made in their favour. But if the contradictions and discrepancies are not material they can be overlooked. In this connection, we may usefully refer to the judgment of this court in Joseph’s case (supra). In that case while dealing with the 19 effect of discrepancies in the evidence of witnesses the Supreme Court observed that it is not every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightway discarded. 21. While dealing with PW 1 Shanti’s evidence it must be remembered that she has lost her minor daughter. She has begun her evidence by saying that she has come to depose about an incident which happened on 5/5/96. She has then tried to explain that she could not recollect the year because the incident occurred about four years back. She gave evidence in the court on 17/10/01. It is evident from her evidence that she was not in a position to recollect all facts. It appears that on certain not so vital matters her memory did not serve her well. The fact that in her evidence PW 1 Shanti has not mentioned Chandraprakash by name and has stated that the accused gave key to him and ran away does not discredit her. This appears to be a 20 mistake because in her cross-examination she has stated that the accused gave key to her brother-in-law’s son. According to PW 4 Chandraprakash PW 2 Deepchand who is the husband of PW 1 Shanti is his uncle. Therefore, PW 1 Shanti has corrected herself in cross-examination that the accused gave key to her nephew that is obviously PW 4 Chandraprakash. Besides in the F.I.R. she has stated that the accused gave key to her nephew Chandraprakash. 22. From the evidence of PW 4 Chandraprakash it appears that he was also looking for the deceased along with PW 1 Shanti. He has no doubt stated that PW 1 Shanti asked the accused whether he had seen the deceased and the accused answered in the negative and went and sat near the common water tap. In the crorss-examination he has made