1 APEAL-OJ-686.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPEAL NO.686 OF 2009 1. Santosh @ Gotu Lalji, Aged 24 years, New Empire Talkies Footpath, Beside Magodale Hotel, Mumbai. 2. Arjun @ Jallu Mohan Kanhayyalal Singh, Aged 23 years, r/at St. George Galli Hutment, Shakil Gebgali s Zopada, Mubai. .... Appellants - Versus - State of Maharashtra .... Respondent Shri A.G. Toraskar for the Appellants. Ms Rajeshree Gadhvi, Addl. Public Prosecutor, for the Respondent-State. CORAM: R.C. CHAVAN, J. DATED: NOVEMBER 30, 2011 ORAL JUDGMENT: 1. This appeal is directed against the conviction of the appellants/original accused Nos.2 and 3 along with two others for offences punishable under Section 366 and 376(2)(g) of 2 APEAL-OJ-686.09 the Indian Penal Code (for short, "IPC") and sentence of rigorous imprisonment of 3 years with fine of Rs.100/- or in default rigorous imprisonment for 15 days, and rigorous imprisonment of 10 years with fine of Rs.300/- or in default rigorous imprisonment for one month respectively on the two counts imposed by the learned Additional Sessions Judge, Mumbai, on conclusion of Sessions Case No.659 of 2006 before her. 2. Facts which are relevant for deciding this appeal are indeed tragic. The victim was possibly a girl of about 18 who had been brought up in a hostel for destitute children. Her father was not well and therefore had asked the girl to get some money from her uncle whose whereabouts she was trying to locate on the incidental day, that is, 30-4-2006. Since she could not locate her uncle, she went back to her father. But her father asked her to go back and see that some money was secured. She claims to have overslept in a suburban train and ultimately found herself in the dead of night at Chhatrapati Shivaji Terminus (for short, "CST") at Mumbai. She was hungry and she accompanied one Ujwala, another girl who was also on the platform of CST station, for having 3 APEAL-OJ-686.09 a cup of tea outside. It is alleged that the two appellants along with two others then carried the duo forcibly towards Azad Maidan, a ground nearby. While the other girl managed to escape, the victim was subjected to rape by three of the four miscreants and when the fourth miscreant was to have his turn, the other girl returned with a Police Constable and, therefore, the persons took to their heels. On a report by the victim, an offence was registered. The victim herself was referred for medical examination, where-after necessary biological samples were taken. Since the victim had heard the miscreants calling each other by their names, she had named them in the First Information Report. The names were of course not complete names but what she had heard. This enabled the police to arrest the miscreants who were also likewise sent for medical examination and necessary biological samples were taken. Their clothes were also seized. One of the accused persons also took the police to the spot where the offence was allegedly committed. The police had also drawn panchnama of the spot. Soil from the spot was also seized. The police caused the victim and the other witnesses to identify the miscreants at a test identification parade held before a Special 4 APEAL-OJ-686.09 Executive Officer in Arthur Road Prison, at which the victim as well as the witness identified the accused persons. Articles which had been seized were sent to the Forensic Science Laboratory and on completion of investigation, charge-sheet was sent up, which was committed to the Court of Sessions by the Additional Chief Metropolitan Magistrate, 30th Court, Ballard Pier, Mumbai. 3. The learned Additional Sessions Judge to whom the case was made over charged the appellant and the two other persons of offences punishable under Sections 376(2)(g) and 363 of the IPC, which charge was altered subsequently to one under Section 366 of the IPC. Since the appellants and their co-accused pleaded not guilty, they were put on trial at which the prosecution examined in all ten witnesses in its attempt to bring home the guilt of the accused. After considering the evidence of these witnesses in the light of defence of false implication, the learned Additional Sessions Judge convicted and sentenced the appellants, as indicated earlier. Aggrieved thereby, two of the four convicts have preferred this appeal. The Registry has noted that the other two convicts, that is original 5 APEAL-OJ-686.09 accused Nos.1 and 4, have not preferred any appeal. 4. I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor (for short, "APP") for the State. With the help of both, I have gone through the entire evidence on the record. 5. PW-1 Gayatri is a hostile panch witness in respect of panchnama about seizure of clothes of the victim. PW-2 Rajesh, is another panch witness who seems to have signed the panchnama about the seizure of clothes of the accused. He identified accused Premkumar, accused No.4, before the Court. PW-3 Mohd. Rafiq Shaikh is a rare eye-witness to the rape. He states that he knew all the accused persons and was also one who used to sleep on footpath like the accused persons. He saw the miscreants take the victim and another girl and followed them. He saw the accused persons, particularly appellant Arjun committing rape upon the victim. It was suggested that he had some altercations or previous disputes with the accused persons and therefore he was falsely implicating them, which suggestion he denied, though he admitted that occasionally there used 6 APEAL-OJ-686.09 to be some disagreement between him and the accused. PW-4 Manik is a witness at seizure of clothes from the accused persons as also at the test identification parade which was held before PW-7, Special Executive Officer Shri Vichare in Arthur Road Prison. An insignificant memorandum of an accused person leading the police to the spot was recorded in the presence of Manik. PW-5 is the victim herself and she gives the account of how she was carried from CST to Azad Maidan and raped by the accused persons. She states that appellant Santosh could not commit rape upon her because by that time the other girl, Ujwala, had returned with a policeman. PW-6 Dr. Chavan had examined the victim as well as the miscreants. He stated that the victim was about 18-19 years of age according to radiological and other examinations. There were no injuries on her person. But the hymen was torn showing fresh tears at 3&11 O Clock positions and an old healed tear at 5&7 O clock positions. The observations by Dr. Chavan would show that the date of birth of the victim, sought to be proved as 15-5-1989 through the evidence of PW-8 Dr. Mathew, who was a Director of the institute where the victim was studying, is not reliable. PW-7 Shri Vichare, as already 7 APEAL-OJ-686.09 indicated, was the Special Executive Officer before whom the test identification parade was held. PW-9 PSI Laxman Sonne had recorded the statement of the victim and performed panchnama of the spot and PW-10 PI Nivrutti Kadam was the investigating officer who arrested the accused, sent the exhibits to the Forensic Science Laboratory and then had the charge-sheet sent. 6. The learned counsel for the appellants submitted that the case is not at all one of rape because ordinarily there would be no business for a young girl to be found at an odd hour at CST. As rightly pointed out by the learned APP, whether the victim had business to be there or not does not justify the mischief of the accused persons. They were not expected or supposed to take advantage of her helplessness. The learned counsel for the appellants next submitted that the medical evidence rules out any possibility of rape. He submitted that PW-6 Dr. Chavan had categorically stated that there were no external injuries on the person of the victim. He submitted that if the victim was subjected to rape by three persons, one after the other, on ground, there ought to be some tell-tale mark of injury on her person, and absence of 8 APEAL-OJ-686.09 such marks would be indicative of consensual intercourse. Again, as rightly pointed out by the learned APP, merely because the victim surrendered herself to the brute force of the four miscreants and did not offer physical resistance, which would have produced injuries on her person, it does not follow that the victim was a consenting party to the intercourse. She submitted that had the victim been a consenting party to the intercourse, there would have been no occasion for her friend Ujwala, who was with her, to rush and get a policeman to the spot. The learned counsel for the appellants submitted that Ujwala has not at all been examined and therefore the story that Ujwala got a Police Constable at the spot is suspicious. He also submitted that PW-9 PSI Sonne, who recorded the victim s report, does not speak of the victim being brought to the police station by any Constable or any Constable having gone to the spot. It is indeed enigmatic as to why such a person, who could be said to have gone to the spot, was not named or has not been examined. But that is not really material. If the accused tried to take defence of consensual intercourse, it would be necessary for them to prove that the victim was a consenting party 9 APEAL-OJ-686.09 and if the victim states that she had not so consented, the presumption under Section 114-A of the Evidence Act would arise. In this case, mere absence of external injuries on the person of the victim or the fact that the victim had two hymeneal tears, which were healed, would not show that the victim had not been subjected to rape. There would be no occasion for the victim to give a report to the police immediately after the incident. There is nothing to show that the victim herself had any enmity with the appellants. 7. Further, the learned APP points out that there is an extremely unusual corroboration to the victim s word from PW-3 Mohd. Rafiq Shaikh, who would have no reason to implicate the appellants. She submits that the evidence of PW-3 is natural and worthy of belief. In view of this, it cannot be said that the learned trial Judge erred in concluding that the victim had been subjected to a rape. 8. As to the question of identity of the miscreants, the victim had stated about the miscreants calling each other by their names. She had reported this in her report which is shown to have been filed soon after the 10 APEAL-OJ-686.09 incident. This report specifically mentions the name of Arjun, one of the appellants, whose face had a scar of a burn injury. In fact PW-7, the Special Executive Officer Shri Vichare, had been asked in cross-examination as to whether he had tried to get dummies who could resemble appellant Arjun and he stated that this scar of Arjun was so unusual that he could not get such dummies. Now this scar, which marks out the appellant, would itself be enough for the victim to identify appellant Arjun whether he was in fact identified at the test identification parade or not, because his face would remain fixed in her memory. Therefore, as far as Arjun is concerned, his identification in the Court, duly corroborated by identification at the test identification parade which was held by the Special Executive Officer on 26-5-2006, would be enough to conclude that appellant Arjun was one of the persons who committed rape upon the victim. The evidence of PW-7 Shri Vichare and the memorandum of the test identification parade, which is at Exhibit-36, show that the Officer had taken all the precautions which are prescribed. He had ensured from the witnesses as well as the accused that there was no occasion for them to see each other before the 11 APEAL-OJ-686.09 test identification parade and after the incident. He also ensured that the parade was held in conformity with the instructions issued by the High Court. Therefore, the complicity of appellant Arjun cannot at all be called in question. 9. However, as far as appellant Santosh is concerned, even according to the victim, Santosh had not actually committed rape upon the victim. The learned APP submits that this is insignificant and irrelevant, since he had design to join the three others in raping the victim. She submits that only because the Police Constable appeared at the site, appellant Santosh could not complete his design. The argument may be morally sound. Such presence, with whatever evil intentions appellant Santosh had in mind, would not be enough to hold him guilty of even an attempted rape. Therefore, the appeal, insofar as it relates to appellant Santosh, would have to be allowed. 10. The learned counsel for the appellants submits that appellant Arjun is a young married man with small children. He submits that though the offence punishable under Section 376(2)(g) 12 APEAL-OJ-686.09 of the IPC attracts minimum punishment of 10 years of imprisonment, the learned Judge had powers to reduce the sentence for adequate and special reasons. He submits that appellant Arjun is a person without any previous criminal history and a man of family. Therefore, he should not be harshly punished with 10 years prison term which would throw his family in a ruin. Now this is something which appellant Arjun should have thought of while indulging in this indiscretion. This cannot be a special or adequate reason for reducing the sentence from the minimum prescribed under the IPC. 11. In view of the above, the appeal, insofar as it relates to appellant Santosh @ Gotu Lalji is concerned, is allowed. His conviction for the offences punishable under Sections 376(2)(g) and 366 of the IPC and the sentences of 10 years and 3 years with fine of Rs.300/- and Rs.100/- respectively are set aside and he is acquitted of those offences. Appellant Santosh be released from prison forthwith, if not wanted in any other case. As far as appeal of appellant Arjun @ Jallu Mohan Kanhayyalal Singh is concerned, it is dismissed. Sd/- (R.C. CHAVAN, J.)