1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1475 OF 2003 Ratan @ Vishvajit Manoranjan Bose, Age about 30 years, residing at 146, Shastri Nagar, Infront of M.I.G.Colony Post Office, Bandra(E), Mumbai-400051. ..Appellant/ Org.Accused. V/s. The State of Maharashtra At the instance of Kherwadi Police Station C.R.No.231/96. ..Respondent. Mr. Girish Kulkarni with Mr. Ram Makhija, Advocates for Appellant. Mr.K.V.Saste, APP for Respondent-State. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : SEPTEMBER 8, 2006. DATE : SEPTEMBER 8, 2006. DATE : SEPTEMBER 8, 2006. JUDGMENT : JUDGMENT : JUDGMENT : 1. This appeal takes exception to the Judgment and Order passed by the Additional Sessions Judge, Greater Bombay dated November 21, 2003, in Sessions Case No. 245 of 1997. The appellant/accused was chargesheeted and tried for offence under section 366 and 376 of I.P.Code. It was alleged that on 13th September, 1996, at about 18.00 hours, the appellant abducted a minor girl Kum. Geeta Mahadeo Sharma, aged about 14 years, in order that she may be seduced to illicit intercourse with him, and thereby 2 committed an offence punishable under section 366 of I.P.Code; and in the course of same transaction, on the aforesaid date, time, on the mezzanine floor of 146, Shastri Nagar, Opposite M.I.G.Colony Post Office, Kherwadi, Bandra(East), Mumbai - 400 051, committed forcible sexual intercourse (rape) on the said minor girl, thereby committed offence under section 376 of I.P.Code. During the trial the appellant/accused was additionally charged for offence under section 363 of I.P.Code on the allegation that he took or enticed the said minor girl from the lawful guardianship of her parents without their consent. 2. The prosecution examined P.W.1-Mahadeo Rupu Sharma, father of Kum. Geeta M. Sharma, P.W.2- Prosecutrix, P.W.3-Monohar Kushaba Gawari (Investigating Officer), P.W.4 Mrs.Shubhada Sanjiv Khandeparkar, Assistant doctor in Gynaech Department of Bhabha Hospital, where Kum. Geeta was admitted for treatment after the incident. The trial court after analysing the prosecution evidence on record, recorded finding of guilt against the appellant for each of the offence, for which charge was framed against him. 3 3. The trial Court in the first place found that Kum. Geeta Sharma, prosecutrix was below the age of 16 years at the relevant time. It is further found that the prosecution has proved that the appellant/accused on 13th September, 1996 at about 18.00 hours took away and enticed the said minor Geeta Sharma from the lawful guardianship of her parents without her consent. The trial Court has further found that the prosecution has also proved that the appellant/accused on the same date, time and place of incident abducted the said minor Geeta Sharma in order that she may be seduced to illicit intercourse with him. The trial court has further found that the prosecution has also proved that the appellant/accused in the course of the same transaction, committed forcible sexual intercourse(rape) on the said minor Geeta. 4. Although the prosecutrix resiled from her stand during the cross-examination, for which, she was required to be declared hostile, the trial Court proceeded to accept her version to the extent it supported the prosecution case. The trial Court also relied on the evidence of P.W.1, father of the prosecutrix, to hold that his version was also trustworthy and can be used to indicate complicity of 4 the appellant/accused in the commission of the offence. For that matter, the trial Court has also relied on the medical evidence namely Medical reports, as also corroborative evidence given by the P.W.4 Assistant Doctor in Bhabha Hospital. Her evidence has not only been found relevant to establish the fact that the minor Geeta was subjected to forcible sexual intercourse(rape), but also corroborates the version of P.W.1 that on being admitted in hospital she had disclosed the history of rape by her neighbour. In fact, the trial Court has proceeded to hold that there was no challenge by the defence to the prosecution case that minor Geeta was raped. The only point disputed by the defence as is noted by the trial Court was in respect of the involvement of the appellant/accused in the crime. Even this aspect has been elaborately considered by the trial Court by relying on the evidence of (P.W.2) Prosecutrix and (P.W.1) father, as also medical report regarding physical examination of the appellant as well as prosecutrix. Having regard to the version given by the P.W.3, I.O. and the seizure of bloodstained clothes of the prosecutrix as well as of the appellant/accused, particularly from the accused clearly establishes complicity of the appellant/accused in commission of the crime. The 5 Court has noted that the appellant did not offer any explanation whatsoever regarding the blood stains found on the clothes worn by him at the relevant-time, which resembles the blood group of the prosecutrix; as well as the finding of the antigens of "A" group in the semen found on the nicker of the prosecutrix indicating involvement of the appellant. Taking totality of the prosecution evidence on record, the trial Court found the appellant guilty of the alleged offence and passed following order: "FINAL ORDER 1. The accused Ratan @ Vishvajit Manoranjan Bose is found guilty for the offence punishable under section 363 of I.P.C. He is sentenced to suffer R.I. for 4(four) years and he shall be liable to pay fine of Rs.500/- (Rs.Five hundred). In default of fine, he shall further undergo R.I. for 3(three) months. 2. The accused is found guilty for the offence punishable under section 366 of I.P.C He is sentenced to suffer R.I. for 5(five) years and he shall be liable to pay fine of Rs.1,000/-(Rs.One thousand). In default of fine, he shall undergo R.I. for 6(six) months. 3. The accused is found guilty for the offence punishable under section 376 of I.P.C. He is sentenced to suffer R.I. for 7(seven) years. and he shall be liable to pay fine of Rs.1,000/-(Rs.One thousand). In default of fine, he shall further undergo R.I. for 6(six) months. 4. All the sentences to run concurrently. 6 5. The accused is entitled for set off u/s 429 of Cri.P.C. 6. The accused is on bail. His bail bond stands cancelled and he is taken into custody immediately. 7. The muddemal Articles 1 to 12 being worthless be destroyed after the appeal period of over." This decision is subject matter of the challenge in the present appeal. 5. Having marshalled the entire evidence on record with the assistance of the counsel appearing for the parties and juxtaposing the same with the conclusion reached by the trial Court in recording finding of guilt against the appellant, I have no hesitation in taking the view that the conclusion so reached by the trial Court is a possible view. Besides, there is no infirmity in the approach of the trial Court in reaching the conclusion-recording finding of guilt against the appellant. I shall presently elaborate on this matter. 6. The counsel for the appellant would contend that the conclusion reached by the Court below cannot be sustained either in fact or in law. It is submitted that the trial Court ought to have discarded the evidence of P.W.2 prosecutrix. She had 7 given two different versions on the material facts and her evidence was unreliable one to proceed against the appellant with such a serious charge. To support this proposition reliance was placed on the decision in the case of Sharnappa Mutyappa Halke Sharnappa Mutyappa Halke Sharnappa Mutyappa Halke V/s.The State of Maharashtra, (AIR 1964 Supreme Court V/s.The State of Maharashtra, (AIR 1964 Supreme Court V/s.The State of Maharashtra, (AIR 1964 Supreme Court 1357 1357 1357), particularly exposition in paragraph-10 of the subject Judgment. It is then contended that the age of the prosecutrix (P.W.2) has not been proved by the prosecution. That was the relevant fact to be proved to show that the prosecutrix was below 16 years of age at the relevant time. It is then contended that there is no evidence to corroborate the prosecution case. In fact, the prosecution having failed to examine material witnesses like Shakuntaladevi, mother of prosecutrix and Manisha, wife of the appellant/accused, who were present in the premises at the relevant time, creates serious doubt about the prosecution case. It is submitted that Manisha’s evidence was necessary to establish the fact that the appellant was at home on the relevant day. It is then submitted that Shakuntaladevi’s evidence was necessary to establish two facts. Firstly, to prove that she went to the mezzanine floor and told the prosecutrix to change her clothes after the incident as the prosecutrix was profusely bleeding and that 8 thereafter, she took the prosecutrix to the Bhabha Hospital. It is submitted that this witness would have also spoken about the fact that she was the first person to inform the incident to police and her statement was recorded, which ought to have been treated as FIR; whereas the FIR is registered not on the basis of her statement, but other prosecution witness. This raises doubt about the contents of the complaint lodged with the police. In the first instance, contends learned Counsel, it would support the argument of the appellant that the prosecution has changed the story subsequently. It is then submitted that recovery of clothes from the premises, where the accused was staying and the incident had happened has not been proved, as the panchas have not been examined. Reliance is placed on the decision of the Apex Court in the case of Kailash Potlia V/s. Kailash Potlia V/s. Kailash Potlia V/s. State of A.P.(1995 Supreme Court Cases (Cri) 985) State of A.P.(1995 Supreme Court Cases (Cri) 985) State of A.P.(1995 Supreme Court Cases (Cri) 985) to contend that seizure of clothes belonging to accused will be of no avail. Even if seizure of clothes belonging to appellant is held to be proved, that evidence is of no avail to establish the involvement of the appellant in the commission of the crime. Emphasis was placed on the observation made in paragraph-4 of this decision that the prosecution had failed to examine other panch witness to corroborate 9 the evidence of P.W.22. In that case, for which reason the Apex Court noted that it was difficult to accept the uncorroborated sole testimony of P.W.22 to believe the recoveries said to have been made. It is then submitted that the specific case of the prosecution was that after the incident when the prosecutrix was admitted in hospital she was bleeding profusely. However, the medical evidence does not support that version, which raises doubt about the prosecution case. On the above submission counsel for the appellant would contend that the prosecution case should fail as against the appellant, having failed to prove by clinching evidence beyond any reasonable doubt about the involvement of the appellant in the commission of the crime. It was submitted that even if the prosecution evidence was to be accepted as it is, it would only raise suspicion about the participation of the appellant in the alleged crime, but that was not enough to record finding of guilt and the appellant would be entitled to benefit of doubt. 7. The prosecution case is that the prosecutrix Kum.Geeta Sharma (P.W.2) was residing with her brothers, sisters and parents at 143, Shastri Nagar, Bandra(East), Mumbai 400051; adjacent to the house 10 of the prosecutrix is the house of one Mr. Namdeo Gadkari. The appellant/accused is the Son in law of said Mr. Gadkari. These facts are not disputed. It has also come on record that the house of the prosecutrix as well as said Mr. Gadkari consists of ground floor and mezzanine floor. The structure of both the houses is similar. It has also come in the evidence that there is one window connecting mezzanine floor of the house of the prosecutrix and that of Mr. Gadkari. The location of the two houses is deposed to by the prosecutrix(P.W.2), father of the prosecutrix(P.W.1), as well as I.O.(P.W.3). Besides, the oral evidence, this fact is corroborated by the spot panchanama. It is established from the record that the said Namdeo Gadkari was residing with his wife, son, daughter Manisha and her husband- appellant/accused. This fact is deposed to by P.W.2, which has gone unchallenged. It has also come in the evidence that the incident occurred on 13th September, 1996. It was one of the days of Ganpati festival. On that day, Namdeo Gadkari, his wife and son had gone to Goa for Ganpati Festival. The appellant and his wife Manisha were present in the house. This fact is deposed to by P.W.2. Even this version has gone unchallenged. In fact, the appellant/accused has admitted this version, as can 11 be noted from his version given in response to question No.10 put to him in his statement under section 313 of Cr.P.Code. The question No.10 as posed to him was : "P.W.2 has further stated that on 13/09/1996 it was one of the days of Ganpati Festival, on that day Namdeo Gadkari, his wife and son had gone to Goa for Ganpati Festival, Manisha and you accd. were in the house. What do you want to say ?" To this question the appellant/acused answered in the affirmative. He has stated "Yes. It is correct." . We shall now turn to the other events alleged by the prosecution. It is alleged that at about 6 p.m. mother of the prosecutrix asked her to put wet clothes on the rope for drying purpose on the mezzanine floor. It is her(P.W.2) case that she went to the mezzanine floor and after placing the wet clothes on the rope for drying, she lied down on the cot kept on the mezzanine floor. At that time, the accused opened the big window which connected both the mezzanine floors of the two houses. The accused then entered the mezzanine floor of the prosecutrix’s 12 house and invited the prosecutrix for watching colour T.V. in his house. The prosecutrix refused to go with him. At that time, the accused pressed the mouth of the prosecutrix and dragged her to the mezzanine floor of his house. Here it may be noted that the appellant was a fully grown up man having good physic and the prosecutrix is a minor girl. The physic of the prosecutrix can be discerned from the medical evidence. Be that as it may, the accused then removed the nicker of the prosecutrix and committed forcible sexual intercourse with her. The prosecutrix thereafter, returned to the mezzanine floor of her house and called her mother, who was on the ground floor of the house. She immediately disclosed the incident to her mother. The mother of Kum. Geeta viz. Smt.Shakuntaladevi Mahadeo Sharma saw the blood stains on the clothes of the prosecutrix and therefore, asked her to change her clothes. Thereafter, Shakuntaladevi, mother of the prosecutrix, took the prosecutrix Geeta immediately to Bhabha Hospital for medical treatment as prosecutrix was profusely bleeding from the private part. Geeta was admitted in Bhabha Hospital. 8. The prosecution would rely on the evidence of P.W.2. She has also given the description of the 13 house. She stated that one can pass through the mezzanine floor of her house to the mezzanine floor of the house of Mr.Gadkari. She has stated that on 13th September, 1996, Manisha, wife of appellant/accused and the appellant/accused were in the house. She has spoken about the fact that her mother told her to put the wet clothes on the rope for drying purpose on the mezzanine floor. Accordingly, prosecutrix went to the mezzanine floor and after putting wet clothes on the rope, laid down on the cot kept on the mezzanine floor of her house. She has also spoken that lights were not on at the relevant time. She has then deposed that somebody called her to the mezzanine floor of Mr. Gadkari. She has stated that she could not see the face of that person due to darkness. But then she has clearly stated that she could identify the voice of that person similar to the voice of the accused. It is relevant to note that the time of incident is stated to be only 6.00 P.M.. It is not as if it was pitch dark. At any rate, P.W.2 has categorically deposed that she recognised the person(accused) on the basis of his voice, which is quite natural thing to happen when dealing with the next door neighbour leaving in such locality. She has then deposed that the appellant then forcibly took her to his mezzanine 14 floor by pressing her mouth by means of his palm. She has also spoken about the fact that the appellant Ratan asked her to remove nicker and when she refused to do so, the appellant Ratan removed her nicker. He also removed his pant and thereafter, inserted his male organ into her private part. She has also stated that the appellant Ratan committed forcible sexual intercourse on the cot. To discredit this version of P.W.2, it was argued that it was next to impossible to commit such activity on the mezzanine floor which was hardly usable. This argument overlooks that the spot panchanama records the area of Mezzanine floor as 15 ft. x 15 ft. That fact is not challenged by the defence. The cross-examination of P.W.3(I.O) was directed only in respect of the height of the mezzanine floor. That does not take the matter any where for the defence. Firstly because, it is not uncommon in city like Bombay where persons are forced to stay in such houses and are used to carry on their routine activities. Besides, it is in evidence that, cot was kept on both the mezzanine floors, which indicates that the same was in use or was usable. Be that as it may, P.W.2 has then deposed that at the time of incident she was wearing white colour top and blue colour skirt and appellant Ratan was wearing jeans pant. She has then 15 stated that she went to the mezzanine floor of her house and called her mother to the mezzanine floor and narrated the incident to her mother. She has then stated that her mother called Manisha. She also stated that she was profusely bleeding from her private part, due to which her clothes were stained with blood. She has then stated that her mother gave her other clothes and she changed the clothes. She has then stated that Manisha and Shakuntaladevi, her mother took her to Bhabha Hospital for medical treatment. She has then stated that she was admitted in Bhabha Hospital and was undergoing treatment for a week. She has further stated that during night time on that day police visited the hospital and recorded her complaint. Complaint was shown to this witness P.W.2. She has admitted that it bears her signature. She has also admitted that the contents of the complaint are correct. Complaint was then marked as Exh.7. 9. Before adverting to the contents of the complaint, it will be relevant to notice the evidence of P.W.1. He has stated that he was informed that there was some problem at his house when he was away in his cutting saloon. That message was given to him at about 7 p.m. on telephone call by one 16 Kedarprasad, who is also resident of the same locality. On receiving that message, P.W.1 rushed to his house and reached at about 8 p.m. when his younger daughter told him that Geeta has been admitted in Bhabha Hospital. He has stated that he straightway proceeded to hospital. To this extent, the version of P.W.1 is unshaken. It is then stated by P.W.1 that after about two hours he alongwith his wife Shakuntaladevi and Kedarprasad proceeded to Kherwadi Police station. He has then stated that police recorded his statement. On this fact in the cross-examination, P.W.1 has been questioned in paragraph-9 of his cross-examination. He has stated that he himself did not lodge the complaint against the accused in the police station. The fact that the statement came to be recorded by the police is not challenged. From the examination-in-chief of this witness, it is not clear as to whether he is referring to recording of statement before registration of the FIR or later on. I shall advert to the relevance of this position a little later. From his evidence, it is certain that the local police was duly informed about the occurrence. 10. Evidence of P.W.3, Investigating Officer would indicate that on 13th September, 1996 when he 17 was on station house duty from 8 p.m. to 8 a.m. Shankuntaladevi, mother of prosecutrix attended the police station at about 10 p.m.. This time corresponds with the time mentioned by P.W.1 about his visit to the police station alongwith his wife Shakuntaladevi. P.W.3 has further deposed that said Shakuntaladevi stated that her neighbour had committed rape on her daughter. She also informed that her daughter was admitted in Bhabha Hospital. P.W.3 has stated that he immediately made entry in the station diary and left the police station with P.I. Sonawane, the police staff and Shakuntaladevi. They proceeded to Bhabha Hospital. He has stated that he visited the ward where the prosecutrix was admitted and recorded her statement as per her version. He has stated that complaint was given by prosecutrix in Hindi language. He wrote down the same in marathi language and explained the same in Hindi language. He has stated that prosecutrix found the version noted in the complaint as correct, Whereafter P.W.3 obtained the signature of prosecutrix(P.W.2). 11. True it is that the fact of occurrence was first reported by Shakuntaladevi, but the FIR has been registered on the night between 13/9/1996 and 18 14/9/1996 at about 2.45 a.m.. FIR (Exh.7) is recorded on the basis of statement given by the prosecutrix herself to the police. In this statement she has mentioned about the circumstances in which she went to the mezzanine floor, as is stated in her deposition. She has also stated that after putting the wet clothes on the rope she was sitting on the cot in the mezzanine floor in her house watching T.V.. She has stated that at that time Ratan @ Vishvajit Manoranjan Bose, appellant herein entered mezzanine floor of her house by opening the door which seperated the mezzanine floor of the two houses. He invited prosecutrix to come to his house to watch colour T.V. but the prosecutrix refused to do so. At that time, the appellant pressed her mouth and forcibly took her to the mezzanine floor of his house. She has also stated about the other details that appellant/accused asked her to remove her nicker and as she refused to do so, he himself removed it forcibly and committed forcible sexual intercourse. She has also described the clothes which were worn by her at the relevant time. The version given by Prosecutrix(P.W.2) on oath is consistent with the statement given to the police on the basis of which FIR came to be recorded. 19 12. Prosecution case is corroborated by the medical evidence. When the prosecutrix was admitted in the hospital for treatment it is seen that she was reluctant to disclose that she has been raped by her neighbour. However, on persistent enquiries made by the hospital staff later on prosecutrix gave history of the alleged rape "by her neighbour". This fact is supported by the hospital record as also medical examination certificate Exh.18. History has been mentioned as alleged history of being raped on the prosecutrix on 13.9.1996 around 6 p.m.. given by the victim in her own words. Evidence of P.W.4 Dr.Mrs.Khandeparkar clearly points out that the patient (prosecutrix) was admitted in the hospital and was treated on account of injury caused due to forcible sexual intercourse committed on her. P.W.4 has also disclosed that the patient on repeated enquiries gave history of