1 APEAL-OJ-763.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.763 OF 2005 1. Navshya Mahya Katela age 30 years, r/o Vankas Waghipada, Talasari, Dist. Thane. 2. Jivalya Dama Ghatala, age 27 years, r/o Vankas Hadalpada, Talasari, Dist. Thane. 3. Rishya Rama Godhale, age 27 years, r/o Vankas Hadalpada, Talasari, Dist. Thane. .... Appellants - Versus - The State of Maharashtra .... Respondent Shri Eknath Sawant for the Appellants. Shri S.A. Shaikh, Addl. Public Prosecutor, for the State. CORAM: R.C. CHAVAN, J. DATED: JUNE 24, 2011 ORAL JUDGMENT: 1. This appeal is directed against the conviction of the appellants by the Ad-hoc Addl. District and Sessions Judge, Palghar for 2 APEAL-OJ-763.05 the offences punishable under Sections 323, 506 and 376(2)(g) of the Indian Penal Code (for short, IPC ) and sentences ranging from three months to ten years imposed on the three counts by the learned Judge. Out of the three appellants, appellant No.2 Jivalya Dama Ghatala and appellant No.3 Rishya Rama Godhale were held to have been juvenile offenders at the time of commission of the offence and were ordered to be released by this Court, pending the hearing of this appeal, by the orders dated 19-11-2009 and 9-7-2010. Appellant No.1 Navshya Mahya Katela was in jail for about one-year- and-eight months before conviction and since his conviction on 13-6-2005 he is again in jail, that is for almost six years now. 2. Facts which are material for deciding this appeal are as under: On the night of 7-3-1998 or the early hours of 8-3-1998, at about 2:00 a.m., there was some stone pelting on the victim s hut. Therefore, the victim and her parents ran away from the hut. The three appellants are alleged to have chased the victim, made her fall down and raped her one after the other. The victim 3 APEAL-OJ-763.05 reported the matter to her mother at 10:00 a.m. on 8-3-1998 and soon thereafter a report was made to the police and an offence was registered. The accused were apprehended and sent for medical examination. The victim was also sent for medical examination. The police performed panchnama of the spot, recorded the statements of the witnesses, sent the samples of body fluids to the Forensic Science Laboratory along with the clothes of the victim and the accused and on receipt of the report of the laboratory and completion of the investigation, sent charge-sheet to the Court of Judicial Magistrate, First Class, Dahanu, who committed the case to the Court of Sessions at Palghar. 3. Charge of offences punishable under Sections 323, 506 and 376(2)(g) of the IPC were framed against the appellants. They pleaded not guilty and hence were put on trial at which the prosecution examined in all eleven witnesses in its attempt to bring home the guilt of the appellants. After considering their evidence in the light of defence of denial raised by the appellants, the learned Judge convicted and sentenced the appellants as indicated earlier. Aggrieved thereby, the appellants filed his 4 APEAL-OJ-763.05 appeal. As already pointed out, appellant Nos.2 and 3, Jivalya and Rishya, have already been released since they were juvenile offenders at the time of commission of the offence. 4. I have heard the learned counsel for the appellants and the learned APP for the State. With the help of the learned counsel I have gone through the record. The prosecutrix was examined as PW-1. She was 14-years old at the time of the incident as could be seen from her evidence as well as the evidence of PW-11 Chandrakant Eknath Misal, Headmaster of the school where she was studying. She stated that on the incidental night, stones were pelted at her hut at about 2:00 a.m. and therefore her step-mother and father started running out of fear. She claimed to have followed her father. Appellant Navshya chased her, kicked her on the waist, causing her to fall down on the ground and then after undressing her, the three accused persons are alleged to have raped her one after another. The accused persons then went away. She went back to her hut but nobody was there in the hut. She claimed to have informed her mother of the incident in the morning of 8-3-1998. In the cross-examination she stated that about 100 persons were pelting 5 APEAL-OJ-763.05 stones at her house. According to her, her mother was running ahead of her, at a distance of only 10 feet from her. The mob of people which had gathered was also running. Her father was only 100 feet away when accused Navshya made her fall down. She claims to have raised a cry. Each of the accused allegedly took 5-10 minutes for committing rape upon her. She stated that house of one Rajesh Katela was just 15 feet away from the spot where she was raped. 5. Her father Shankar, who was examined as PW-2, also stated about stone pelting at about 2:00 a.m.. While PW-1 had stated that she had followed her father, PW-2 stated that he and his wife were running in one direction whereas his daughter was running in the other direction. But he states that he came back to the hut at 3:00 a.m.. Thus, by the time the victim came back to her hut, her father must have been in the hut. He stated in his cross- examination that there was a marriage at the house of one Shankar Gunjala which was attended by his brother Ramaji. In the said marriage, an incident of stone pelting occurred. He stated that Ramaji inquired with the accused as to who had pelted the stones and admitted that his brother Ramaji might have assaulted accused 6 APEAL-OJ-763.05 Jivalya. He stated in his cross-examination that when he was about 100-150 feet away from the hut, he realised that his daughter was not with him. PW-3 Smt. Gulab is the step-mother and PW-4 Laxmi is the real mother of the prosecutrix. They state about stone pelting and also the fact that the victim reported about rape on the next day. 6. PW-5 Suresh Gharat is panch at the spot panchnama who states that the police had seized at the spot a violet colour knickers, a white colour muddy towel and a black colour torn blouse. The learned counsel for the appellants pointed out that the prosecutrix had in fact claimed she had handed over the clothes to the police. Therefore, either the finding of the clothes at the spot is not correct or the claim of the prosecutrix that she handed over the clothes to the police is not correct. PW-6 Mahesh is a cousin of the prosecutrix, whose evidence does not contribute to the cause of the prosecution. PW-7 Sandip is a panch at the arrest panchnamas of the appellants. PW-8 Dr. Sarode examined the appellants and found them capable of performing intercourse but did not find any marks of injury on the person of the appellants. This is significant in the context 7 APEAL-OJ-763.05 of the fact that the prosecutrix had claimed to have taken a bite on the palm of one of the molesters. PW-9 API More conducted the investigation. 7. PW-10 Dr. Sawant had examined the prosecutrix and he found that there were no external injuries on her body, no semen stains were found, labia were healthy, there was old healed hymen tear, vaginal orifice admitted two fingers and there was no swelling or tenderness. There was no bleeding and in his opinion, there was no finding of complete forceful sexual intercourse. Thus, the evidence of PW-10 Dr. Sawant would rule out the possibility of any rape by the three accused. The learned APP submitted that the medical evidence cannot be conclusive of the matter since the Doctor examined the victim at about 11:30 p.m. on 8-3-1998, that is, almost twenty hours after the incident. He also submitted that in many cases there may be no injury discernible by a Medical Officer and therefore this need not result in rejection of the words of the prosecutrix. Even so the evidence of Dr. Sawant creates a possibility that the victim was not raped and this possibility would have to be examined with reference to the other 8 APEAL-OJ-763.05 evidence. 8. As rightly pointed out by the learned counsel for the appellants, if the prosecutrix and her parents ran when the hut was being pelted with stones and if the words of the prosecutrix were to be believed, her father would have been within the distance of hearing her cries, if she did in fact cry when being molested by the three accused persons. Secondly, it was incredible that if there was a mob of 100 persons involved in stone pelting, how three persons from that mob could molest a girl in the view of the mob, and thirdly how a person staying just 15 feet away from the spot where the alleged rape took place was oblivious of what was happening near his hut. Lastly and most importantly, PW-9 API More in his evidence admits that on the same day at about 1:30 a.m. there was a riot in which sixteen persons were involved, including the three appellants. He stated that the incident of rioting had taken place at Vankas Vaghaipada whereas the incident of rape took place at Vankas Awarpada. He could not tell about the distance between Vankas Vaghaipada and Vankas Awarpada. All the same, the fact remains that an incident of rioting had occurred in which the three accused persons 9 APEAL-OJ-763.05 were involved and the places of the two incidents were not the same. The evidence of PW-2 Shankar, the victim s father, may again be recalled where he states that his brother Ramaji had possibly even assaulted accused Jivalya because of rioting. In this context, the evidence of the prosecutrix would have to be seen. Possibly because there was a rioting at another place where the accused were involved in stone pelting, they have been roped in for the alleged rape. It is extremely difficult to believe the story of gang rape in the context of the fact that the victim s parents were also with her and could not have been much far away when the incident allegedly took place, coupled with the evidence of PW-10 Dr. Sawant, which would rule out the possibility of the victim having been raped. 9. In view of this, the learned Judge could not have convicted the three appellants of the offences of voluntarily causing hurt, criminal intimidation or gang rape. The appeal is, therefore, allowed. The conviction of the appellants for the three offences and the sentences imposed upon them are set aside. Appellant No.1 Navshya Mahya Katela, who is in jail, may be set at liberty, if not wanted in 10 APEAL-OJ-763.05 any other case. As far as the other two appellants are concerned, they are stated to have been juvenile offenders at the time of commission of the offence and have been released on that count by this Court. The stigma of their conviction also stands washed by this judgment. They also stand acquitted. Fine, if paid, may be refunded. (R.C. CHAVAN, J.)