.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.288 OF 1991 1. Sanjay Baban Bagul, 2. Chandrakant Tukaram Surve, & 3. Dilip Kantilal Shah, All residents of Kalyan, Thane. ..APPELLANTS. [Orig.Accused Nos.3,4 & 5] Versus 1. The State of Maharashtra, & 2. Ranjana Dattatraya Borse, Resident at Valdhuni, Mendekar Wadi, Kalyan, Dist: Thane. ..RESPONDENTS. ALONG WITH CRIMINAL APPEAL NO.316 OF 1991 Raju Vinayak Ghone, Resident of Kalyan, District Thane. ..APPELLANT. [Orig.Accused No.2] Versus The State of Maharashtra. ..RESPONDENT. ... Mr.A.P.Mundargi, Sr. Advocate a/w. Mr.Shaunak Mehta, Advocate for the appellants. Mr.V.B.Konde-Deshmukh, APP, for the State. ... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING DATE OF RESERVING DATE OF RESERVING THE ORDER : 30TH JANUARY, 2009. THE ORDER : 30TH JANUARY, 2009. THE ORDER : 30TH JANUARY, 2009. DATE OF PRONOUNCING DATE OF PRONOUNCING DATE OF PRONOUNCING THE ORDER : 3RD MARCH, 2009 THE ORDER : 3RD MARCH, 2009 THE ORDER : 3RD MARCH, 2009. .(2). [IN CHAMBER, 2:40 PM] [IN CHAMBER, 2:40 PM] [IN CHAMBER, 2:40 PM] JUDGMENT : JUDGMENT : JUDGMENT : 1. The appellants - orig.accused Nos.3, 4 & 5 in Criminal Appeal No.288 of 1991 and the appellant - orig.accused No.2 in Criminal Appeal No.316 of 1991 have challenged the judgment and order dated 20.4.1991 passed by the learned 2nd Additional Sessions Judge at Thane in Sessions Case No.67 of 1986. By the said judgment and order, all the appellants came to be convicted under Section 376(2) of Indian Penal Code. The appellants - orig.accused Nos.3,4 & 5 came to be sentenced to suffer R.I. for ten years and to pay fine of Rs.2000/- each in default, R.I. for six months, and appellant - orig. accused No.2 was sentenced to suffer R.I. for three years and to pay fine of Rs.500/-, in default, R.I. for three months. For the sake of convenience, the appellants will be referred to by their original status in the trial Court. 2. The prosecution case, briefly stated, is as under : .(3). . The prosecutrix PW-1 was aged about 14 years at the time of the incident. She was working as a maid servant. On 18.6.1985 at about 8:30 p.m. she left the job where she was working as a maid servant and she was proceeding home. On the way, she met accused No.1 Hemant who was driving autorikshaw. He offered her a lift home. The prosecutrix sat in the autorikshaw. On the way, they came across four friends of accused No.1 Hemant i.e. accused Nos.2 to 5. They asked accused No.1 whether he was going to his work or not ? Thereupon Hemant asked the prosecutrix to get-down from the autorikshaw. Accordingly the prosecutrix got down from the autorikshaw and Hemant went away. Thereafter accused Nos.2 to 5 called another autorikshaw and they offered to taking the prosecutrix home. She sat in the autorikshaw. The accused persons asked the autorikshaw driver to take them to one lodge. They took the prosecutrix to a lodge situated at Ahilyabai Chowk at Kalyan. Those persons told the prosecutrix that they will take her home. However, the prosecutrix was taken to one room in Mangesh lodge. It is her case that there she was raped by them. Thereafter, from the said lodge .(4). she was taken to Kala Talav area, where again they committed rape on her. After committing rape, while they were returning the prosecutrix met PW-3 police constable Kedare. He made enquiry with her, whereupon she informed him about the incident. FIR came to be lodged. The accused persons came to be arrested. After completion of investigation, the charge-sheet came to be filed. 3. Charge came to be framed against all the accused persons under Section 363 r.w.34, u/sec. 366 r.w. 34 and u/sec.376 r.w. 34 of Indian Penal Code. All the accused pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. The defence of the accused is that the police found the prosecutrix moving in suspicious circumstances during the night. Hence, they questioned her, whereupon the prosecutrix to save herself, gave a false & concocted story. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted accused Nos.1 & 6 of the offences under Sections 363, 366, 376 r/w. 34 of IPC. Accused No.1 was also acquitted of the charge under Section 376 r/w. 109 of IPC. .(5). However, the appellants i.e. original accused Nos.2 to 5 came to be convicted for the offence under Section 376(2) of IPC. Accused Nos.3, 4 & 5 were sentenced to undergo RI for 10 years and to pay fine of Rs.2000/- in default RI for six months. Accused No.2 was sentenced to RI for 3 years and to pay fine of Rs.5000/- in default RI for three months. 4. The prosecution case is mainly dependent on the evidence of the prosecutrix PW-1. PW-1 has stated that on 18.6.1985 at about 8:30 p.m., she was returning home. On the way, she met accused No.1 Hemant who was driving autorikshaw. He offered to drop her home. Hence, she sat in the autorikshaw. On the way, they came across four friends of accused No.1 Hemant. Those friends i.e. accused Nos.2 to 5 asked accused No.1 whether he was going to his work or not ? Hence Hemant asked the prosecutrix to get-down from the autorikshaw. Accordingly the prosecutrix got down the autorikshaw and Hemant went away. Thereafter accused Nos.2 to 5 called another autorikshaw and they offered to take the prosecutrix home. Hence, she sat in the autorikshaw. The accused persons .(6). asked the autorikshaw driver to take them to one lodge. They took the prosecutrix to a lodge i.e. Mangesh Lodge situated at Ahilyabai Chowk at Kalyan. It is her case that there she was raped by six persons. Thereafter, from the said lodge she was taken to Kala Talav area, where again the accused persons committed rape on her. After committing rape, while they were returning the prosecutrix met PW-3 police constable Kedare and she informed him about the incident. 5. It may be stated here that it is unequivocally admitted by the prosecutrix that she was not raped by original accused Nos.1, 2 & 6. 6. Mr.Mundargi the learned Counsel for the appellants stated that even as per the prosecution case, none of the appellants were known to the prosecutrix prior to the incident. He submitted that no TIP was held by the investigating agency and the prosecutrix has directly identified the accused persons in Court six years after the incident. He submitted that no reliance can be placed on such identification in Court. He relied on the decision in the case of Vijayan and others. Vijayan and others. Vijayan and others. .(7). vs. The State vs. The State vs. The State reported in 1993 CRI.L.J.2364 1993 CRI.L.J.2364 1993 CRI.L.J.2364. The said case was also one of gang-rape. The case of the prosecutrix therein was that she was raped by three accused persons. No test identification parade was held and the prosecutrix was examined in Court after more than three years after the occurrence. In the said case, it was held that in such case the identification of accused by the prosecutrix in Court is of no value and the accused cannot be convicted on that basis. In the said case, semen was also found on the clothes of the accused persons, however, it was held that this fact cannot be a incriminating piece of evidence so as to connect the accused with the offence. 7. The learned Counsel for the appellants vehemently argued that it is the categorical evidence of the prosecutrix that she did not know any of the appellants prior to the time of occurrence and that she saw them for the first time only at the time of occurrence. He submitted that the prosecutrix in her FIR has not given any identifying mark or feature of any of the accused nor has she stated anything about their physical .(8). appearance like approximate height, colour of skin or whether they were slim or stout or so on. In this background, I would usefully refer to a decision of the Apex Court in the case of Kanan Kanan Kanan Vs. State of Kerala Vs. State of Kerala Vs. State of Kerala reported in AIR 1979 SC 1127 AIR 1979 SC 1127 AIR 1979 SC 1127, wherein it is observed that :- "It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his power of observations. The idea of holding T.I. Parade under S.9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of accused for the first time in Court." 8. In the case of Chonampara Chelappan v. Chonampara Chelappan v. Chonampara Chelappan v. State of Kerala State of Kerala State of Kerala reported in 1979 SCC (Cri) 1029 1979 SCC (Cri) 1029 1979 SCC (Cri) 1029 : .(9). (1979 (1979 (1979 Cri.LJ 1335), it was observed at pages 1034 and 1035 as follows (at pp. 1338-39 of CriLJ):- "In his evidence P.W. 63 identified A. 58, A. 15 and one Devassy. Indeed, if this witness had known these persons by name then there was no reason why he should not have mentioned their names in the F.I.R. lodged by him immediately after the occurance. Again, if the witness whom he identifies in the Court as indicated above was not known to him from before, then his identification of the accused for the first time in Court without any T.I. parade is absolutely valueless." 9. In my opinion in view of the aforesaid authoritative pronouncement of the Apex Court, it will be unsafe to rely on the evidence of the prosecution so far as the identification of the appellants is concerned. 10. Even otherwise, I would like to make a reference to the other evidence in this case. Immediately after the incident, the prosecutrix .(10). went to the police station. Thereafter she was sent for medical examination. Vaginal swabs were taken. As per the C.A. report, no semen was detected in the vaginal swab. PW-2 Dr. Kshama examined the prosecutrix and she issued medical certificate Exh.35. No external injury was found on the private part. It is also pertinent to note that PW-2 Dr.Kshama stated that if a woman has intercourse 5-6 times, the pubic hair would be matted with semen. However, in the present case, no semen was found. 11. Mr.Mundargi submitted that though the medical certificate shows tear of hymen and some abrasions was seen on the back of the prosecutrix, the medical certificate does not show that the tear of the hymen was fresh or that the abrasions on the back were fresh. The Doctor has admitted that the age of the injury is a very important factor and it should be noted in the medical certificate. Mr.Mundargi submitted that had the injuries been fresh, the Doctor would have certainly noted the same in the medical certificate. The fact that they were not so noted in the medical certificate shows that the injuries .(11). were not fresh and they were old injuries. Mr.Mundargi has drawn my attention to the evidence of the Doctor where she has stated that if a virgin girl is raped 6-7 times within a span of about two hours, there should be laceration to the private part. In view of this, Mr.Mundargi submitted that absence of laceration or inflammation on the private part of the prosecutrix indicates that she was not forcible raped by so many persons, as she has tried to state. Looking to the medical evidence, I find much merit in this submission. 12. In addition to the above, it is seen that the Doctor has admitted that if a girl is slim and weak, she may not walk properly after the incident. The Doctor has stated that the prosecutrix was not finding any difficulty in walking nor there was any difficulty in her gait. It has come on record through the evidence of PW-4 Dr.Umbarkar that the height of the prosecutrix was 4’ X 11". and her weight was only 38 kgs.. In such case, it can certainly be stated that the prosecutrix was a slim and weak girl and if she was subjected to forcible sexual intercourse on .(12). about six occasions, there ought to have been some difficulty in walking or change in gait. Thus, looking to the C.A. certificate and the medical evidence on record, it cannot be said that there is any reliable proof that the prosecutrix was subjected to rape. 13. The prosecution has tried to place reliance on the fact that all the accused persons had multiple injuries on their body which according to the prosecution shows that they had participated in the gang rape. The learned APP submitted that the injuries must have been caused to the accused on account of the resistance put up by the prosecutrix. However, I am not much impressed by this submission because it is seen that it is the categoric case of the prosecutrix that accused Nos.1, 2 & 6 have not committed rape on her. According to the prosecutrix, these three accused persons have not at all participated in the incident of rape. According to the prosecutrix, at no point of time they were in close physical proximity with the prosecutrix. Yet, it is pertinent to note that injuries have been found on the body of these three accused persons which are .(13). similar to the injuries found on the other appellants. The original accused No.1 had left the spot at the initial stage itself. In such case, how he came to have injuries on his body which are similar to that of other accused persons is a big mystery. The accused persons have also sustained multiple injuries including weal marks and nail marks. As to how the accused persons came to have weal marks on their body has not been explained by the prosecution. If as per the prosecution case, the appellants sustained the nail mark injuries on account of the prosecutrix having resisted the attempts of the accused persons to commit rape on her, it is seen that accused Nos.1 and 6 also had nail marks on their person, and accused No.2 had six injuries on his body including four abrasions, though it is the specific case of the prosecution that they did not even touch the prosecutrix. Moreover, if as per the prosecution case, the prosecutrix caused these injuries to the appellant during the incident, it is surprising that no nail marks or any injury was found on face, neck, hands and legs, on the private parts or front side of the body of the prosecutrix. .(14). 14. It is the case of the prosecutrix that when she was taken to a room in the lodge, there she was raped a few times. Thereafter from the lodge, she was taken to another place where the accused persons again committed rape on her. As far as the incident in the lodge is concerned, the prosecutrix has categorically stated in her examination-in-chief that she went to the room in the lodge alongwith the accused voluntarily. It is pertinent to note that nowhere in her examination-in-chief, the prosecutrix has stated that she shouted for help or that she put-up any resistance when the accused persons had sexual intercourse with her. So also the prosecutrix has made no mention of any threats being given to her by the accused persons. After the incident, she went walking with the accused persons to the second spot. There was no attempt on the part of the prosecutrix to escape or run-away. The second place where the incident took place, according to the prosecutrix, is at a five minutes walk from Shivaji Chowk which is supposed to be the main chowk and main road in Kalyan. In her evidence, the prosecutrix has admitted that the road from .(15). Shivaji Chowk to Ahilyabai Chowk is the main road in Kalyan and in the evening there is heavy traffic in that area till 10 p.m.. The evidence shows that the prosecutrix voluntarily accompanied the accused to the lodge. Even at the lodge the prosecutrix did not make any hue and cry or try to run away and that thereafter she accompanied the accused persons to the second spot without making any attempt to escape or seek help. At the second spot also she did not make any attempt to escape or raise any shouts or put up any resistance. All these facts, goes to show consent on the part of the prosecutrix. 15. As far as consent is concerned, the learned APP submitted that the age of the prosecutrix was only 14 years and hence consent on the part of the prosecutrix is immaterial. There can be no quarrel with the proposition that if a girl is below 16 years of age, even if she consents to sexual intercourse, it would still amount to rape. However, the moot question is whether the prosecutrix was under 16 years of age at the time of the incident. In order to show that the prosecutrix was below 16 years of age, the .(16). prosecution has placed reliance on the evidence of PW-4 Dr.Umbarkar. Dr.Umbarkar has stated that after performing the test,he came to the conclusion that the prosecutrix was between 14 to 15 years of age. However, the Doctor has admitted that in such kind of test, the margin of error is between 1 or 2 years on either side. Thus, if the margin of error is taken into consideration, the prosecutrix would be over 16 years of age. In such case, the appellants are entitled to advantage of this marginal error in such tests. Thus, the evidence of Dr.Umbarkar does not help the prosecution. 16. As far as the age of the prosecutrix is concerned, the prosecution has also placed reliance on the evidence of PW-5 Ashok who is the uncle of the prosecutrix. This witness has only stated that the prosecutrix is younger to him by about 10 years. However, PW-5 has not stated anywhere about the date of birth or about the age of the prosecutrix. Thus, the evidence of this witness cannot be safely relied upon. 17. To show that the prosecutrix is a minor, .(17). the prosecution has placed reliance on the evidence of PW-8 Mrs.Vaidya who was the Headmistress of the School in which the prosecutrix is alleged to have studied. Mrs.Vaidya has stated that one Nalini Borse was admitted in the school in 1st standard on 31.7.1978. Her date of birth as per the register was 9.5.1972. This witness has no personal knowledge about the date of birth of the prosecutrix nor she has seen who filled the original form on the basis of which the date of birth was registered in the school register. This witness has admitted that on the basis of the school record, she cannot say what evidence was produced to show the date of birth of Nalini at the time of her admission in the school. Mrs.Vaidya has further admitted that when illiterate people come to school for admitting their children in the school, they do not bring any birth certificate. As the school insists for the date of birth, these people just get the date written on a piece of paper and on the basis of that the date of birth is taken in the school register. She admitted that in the register it is not noted whether the birth certificate was .(18). produced or any horoscope was produced by anyone at the time of admission. 18. The form filled-in at the time of admission bears the signatures of one Mrs.Pushpa Borse as guardian of the child. However, as to who is this Mrs.Pushpa Borse has not come on record. This Pushpa has not been examined. Hence, there is no material on record to show on what basis the date of birth of Nalini is shown in the school register. A very important aspect of this matter is that, the name of the prosecutrix is not Nalini but it is Ranjana. It is pertinent to note that the prosecutrix has not stated anywhere that she was also known as Nalini. On the other hand, she has stated that at the police station she came to know that in the school, her name was given as Nalini. She has stated that in the school, she was not called as Nalini, but she was addressed by her surname. The prosecutrix has stated that at the time of roll-call, she was not called by her name, but, she was called by her surname. This is rather unusual because in schools the students are always called by their first name. .(19). 19. Thus, as far as the evidence of Mrs.Vaidya is concerned, looking to the ambiguity in the name of the prosecutrix, I find great hesitation in relying on the evidence of Mrs.Vaidya. Even otherwise, though the school registers are undoubtedly admissible in evidence, however, when it is not clear on the basis of which document the age was recorded in the school register and when the register mentions the name of one Pushpa Borase, and there is no evidence to show who the said lady was, in such case, much value cannot be attached to the entries in the school register. Thus, I find that there is no cogent and reliable material to show that the prosecutrix was below 16 years of age at the time of the incident. Looking to all the above facts, I am of the opinion that the conviction of the appellants cannot be sustained. 20. In the result, appeals are allowed. Conviction and sentence of the appellants is set-aside. The judgment and order dated 20.4.1991 passed by the learned II Additional Sessions Judge, Thane in Sessions Case No.67 of 1986 is set-aside. The appellants are on bail. Their .(20). bail bonds shall stand cancelled. Fine amount, if any, paid be refunded to the appellants. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)