1 APEAL-JG-25.94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.25 OF 1994 Balu Ramdas Sangle, Age: 32 years, Occ: Police Constable, r/o Police Vasahat, Shivajinagar, Pune-5. .... Appellant - Versus - State of Maharashtra .... Respondent WITH CRIMINAL APPEAL NO.35 OF 1994 Machhindra Kannusingh Chavan, aged about 38 years, Occ: Police Constable, r/o Old Police Line, Shivajinagar, Pune-5. .... Appellant - Versus - The State of Maharashtra .... Respondent S/Shri M.S. Mohite with Amol A. Deshpande for the Appellant in Appeal No.25/1994. S/Shri Uday Warunjikar with Nitesh Bhutekar for the Appellant in Appeal No.35/1994. Shri Y.M. Nakhwa, Addl. Public Prosecutor, for the State in both Appeals. 2 APEAL-JG-25.94 CORAM: R.C. CHAVAN, J. DATED: APRIL 21, 2011 ORAL JUDGMENT: 1. These two appeals have been filed by two Police Constables who had been convicted by the learned Addl. Sessions Judge, Pune for the offences of rape, abetment to commit rape and abduction and sentenced to suffer various terms of imprisonment ranging from five years to ten years. The appellant in Criminal Appeal No.35 of 1994 was also convicted for the offence punishable under Section 377 of the Indian Penal Code (for short, IPC ) and sentenced to suffer RI for five years. 2. Facts which are material for deciding these appeals are as under: The prosecutrix had been abandoned by her husband as well as the other members of her family and was living virtually on the streets. On 1-4-1992 she claims to have gone to Chandni Chowk area in search of some work. There, in the afternoon, she met the two Police Constables who took her to a deserted house on the pretext of finding a seat for her in a bus 3 APEAL-JG-25.94 for going to Deccan Gymkhana area. There appellant Machhindra is alleged to have first performed oral sex with the victim and then raped her in spite of her protestations. Appellant Balu was possibly standing guard outside the deserted house where this incident took place. Some persons working at a hotel nearby claimed to have heard shouts of a woman and therefore rushed to the deserted house and one of those persons, on finding the victim being raped, took away the trousers of appellant Machhindra. Appellant Machhindra got up, put on his undergarments, wrapped himself of in a sari which had been left by the victim and then both the appellants are alleged to have blown whistles to attract the attention of the police van which was patrolling nearby. The police party seems to have picked them up and taken them to the hotel. The manager of the hotel had also informed the nearby police station on telephone. A police party from the police station had also come. The victim identified the appellants. The victim s report was taken. The clothes of the victim as well as the appellants were seized. The victim and the appellants were sent for medical examination. Biological samples of the victim and the appellants were taken. Incriminating articles 4 APEAL-JG-25.94 were sent to the forensic science laboratory, statements of witnesses were recorded and on completion of the investigation, charge-sheet was sent to the Court of Judicial Magistrate, First Class, Pune, who committed the case to the Court of Sessions at Pune. 3. To the charge of offences punishable under Sections 366 and 376(2)(a) r/w Sections 109, 377 and 506 of the IPC framed against the appellants, they pleaded not guilty and claimed to be tried. In its attempt to bring home the guilt of the appellants, the prosecution examined in all thirteen witnesses. After considering their evidence in the light of defence of denial, the learned Judge held appellant Machhindra guilty of the offence of rape as well as of unnatural sexual intercourse, abduction and criminal intimidation, and sentenced him to suffer RI for ten years for the offence punishable under Section 376, five years each for the offence punishable under Sections 366 and 377 and RI for one year for the offence punishable under Section 506 of the IPC. He also sentenced him to pay fine for each of the above offences. He also convicted appellant Balu for the offences punishable under Sections 366 and 506 of the 5 APEAL-JG-25.94 IPC and also for the offence punishable under Section 376(2)(a) r/w Section 109 of the IPC and inflicted similar sentences upon appellant Balu. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the respective appellants and the learned APP for the State. With the help of learned counsel I have gone through the entire evidence on the record. PW-1 Shrirang is a witness to the seizure of clothes, including the sari which appellant Machhindra was wrapped in when accosted by the police party. PW-2 Yanappa is a witness to the seizure of the victim s clothes. PW-3 Ashish, manager of the hotel, is a witness to the spot panchnama drawn by the police. PW-4 Sunil and PW-5 Datta are the persons who were working at the hotel and had witnessed the incident on being attracted by the cries of the woman. PW-6 PSI Walture had come to the hotel on receiving a telephone call from the hotel manager after the incident. PW-7 PSI Babar was in the patrolling police van which was attracted by the whistles blown by the appellants. PW-8 is the prosecutrix herself. PW-9 Tanksale, Circle Officer in the Revenue Department, drew the sketch of the spot on the 6 APEAL-JG-25.94 requisition of the police, PW-10 Dr. More had examined the prosecutrix and PW-12 Dr. Ughade had examined the appellants. PW-11 Walvekar is also a manager of the hotel and PW-13 PI Shinde conducted the investigation. 5. The learned counsel for the appellants submitted that the entire incident is a figment of imagination and the appellants have been falsely implicated in the offence, possibly because they had noticed nefarious activities of the prosecutrix and her friends. They pointed out that the prosecutrix was a vagrant and had no means of livelihood. There was no business for the prosecutrix to be in the area at the relevant time and she had been propelled to lodge a false report at the instance of her friends. The learned APP submitted that there would be no occasion for a woman to falsely accuse a policeman of such a ghastly act and also submitted that it would be difficult to imagine young boys accusing a policeman or framing a policeman because they were found doing any indecent activities. He submitted that the very fact that one of the appellants was found wrapped up in the sari of the prosecutrix after the incident shows that the incident narrated by the prosecutrix is 7 APEAL-JG-25.94 truthful. 6. It may be useful to recount as to what the prosecutrix had stated about the incident. She stated that she had been deserted by her husband since about three years prior to the incident. On 1-4-1992 she had left in search for some work for herself and had come to Chandni Chowk area at about 3:30 p.m.. Though she could not get any work there and should have ordinarily returned to a more secure location from the deserted place at Chandni Chowk and though buses were available every twenty minutes to enable her to return, she seems to have loitered in the area till 8:00 p.m. for no apparent reason. She claims that the two appellants told her that they would manage a seat for her in the bus and that she should accompany them. She claims to have declined their offer but agreed to accompany them since they threatened to prosecute her. She states that she was then taken to a deserted house near a hillock. While appellant- Balu remained outside the house, appellant Machhindra took her inside, made her lie down, undressed himself suitably and committed unnatural sexual intercourse upon her by asking her to perform oral sex. He is then alleged to 8 APEAL-JG-25.94 have also committed rape upon the prosecutrix. She was asking him to leave her. She claims that 4-5 boys came there, saw the incident, and on seeing those boys appellant Machhindra got up but one of the boys ran away with the trousers and belt of appellant Machhindra. She claims to have accompanied those boys to the hotel and thereafter the hotel manager called the police. She stated that thereafter appellant Machhindra came to the hotel wearing his shirt and her sari wrapped around his waist. In cross-examination she curiously stated that it was her problem how to earn money or to maintain herself and stated that if she was paid money, she would have no complaint or grievance against the accused persons. She admits that when the appellants took her from Chandni Chowk towards the deserted house, she did not raise any cries or try to run away. She denied the suggestion that she had illicit intimacy with PW-4 Sunil and PW-5 Datta or that the police had seen her with those boys in the room and therefore she ran away from the room along with those boys. She admitted that after the incident she had been referred to a psychiatrist but denied having told the psychiatrist of having maintained herself from selling her person or having undergone 9 APEAL-JG-25.94 termination of pregnancy four or five times in the past. The victim had also admitted in her cross-examination that after her experience of trying to secure work for her maintenance, she had come to know that it was not possible for her to maintain herself by doing some work. She had also stated that during the entire act, she did not resist in any manner. 7. PW-4 Sunil and PW-5 Datta are the eye- witnesses who were at the hotel and claim to have heard the cries of the victim. They state that both of them took two different routes to the deserted house and found the victim being raped by appellant Machhindra. Sunil claims to have carried away appellant Machhindra s trousers with belt which he had produced before the police officers when they came to the hotel. The learned counsel for the appellants submitted that the evidence of these two witnesses is thoroughly unreliable, since there was no reason for them to be at the hotel, as indicated by them. There is also some discrepancy about whether a stall vending beetle leaves which was nearby was open or not. The learned counsel state that the entire story of these two witnesses would show that they were acquainted with the victim and it is only therefore that the victim accompanied them to 10 APEAL-JG-25.94 the hotel. The learned counsel for the appellants also pointed out to the fact that PW-11 Walvekar, manager of the hotel, stated that the victim was in the bathroom of the hotel. The learned counsel submitted that this normally happens when raid is conducted at hotels and persons in nefarious business hide themselves in bathrooms. 8. As rightly pointed out by the learned APP, all these things would pale out into insignificance when contrasted with the fact that appellant Machhindra had admittedly come to the hotel wrapped in a sari. There would have been no business for the appellant to drop his pants to wrap himself in a sari if nothing had happened in the deserted house nearby. The claim of appellant Machhindra that he had gone to answer an urgent call of nature and he had kept his pants, which was taken away by a dog, was rightly rejected by the learned trial Judge, as in that case the other constable who was with him would have definitely secured the pants from the dog. In any case, it would have been a mystery as to how the pants came to be possessed by PW-4 Sunil, if it was taken away by a dog. Therefore, there is no escape from the fact that appellant Machhindra did indulge 11 APEAL-JG-25.94 in some sexual act with the victim. 9. The learned counsel for the appellants pointed out that the victim was in her menses according to the evidence of PW-10 Dr. More. If that was so, according to the learned counsel, upon appellant Machhindra wearing his underwear and wrapping himself of in the victim s sari, his underwear would have stains of some menstrual blood. But the reports of the forensic science laboratory, which are at Exhibit-61, do not show presence of any blood of the victim on the underwear of appellant Machhindra. Therefore, the story of the victim having been raped appears doubtful. This may be consistent with the fact that appellant Machhindra is also alleged to have committed unnatural sexual intercourse with the victim. Such an occasion should have arisen only upon the victim telling the appellant that she was in her menses or the appellant so finding. Therefore, the conviction of appellant Machhindra for the offence punishable under Section 376(2)(a) of the IPC should not have been recorded by the learned trial Judge. 10. As far as the appellant Balu Ramdas Sangle is concerned, he is not alleged to have 12 APEAL-JG-25.94 indulged in any sexual act. He is alleged to have only accompanied appellant Machhindra. There is nothing to show that appellant Balu in any manner instigated or abetted the criminal act of appellant Machhindra. Therefore, the conviction of appellant Balu for the offences punishable under Sections 376(2)(a) and 366 r/w Section 109 of the IPC was thoroughly uncalled for. 11. As far as the offence punishable under Section 506 of the IPC is concerned, except for one allegation that the appellants threatened the victim that they would prosecute her, there is no other act of intimidation attributed to the appellants. The victim seems to have merrily accompanied the appellants from Chandni Chowk to the deserted house. She is not shown to be mentally deficient, as could be seen from the psychiatrist s report at Exhibit-54. Therefore, the conviction of the appellants for the offences punishable under Sections 366 and 506 of the IPC also should not have been handed down. 12. In view of this, Criminal Appeal No.25 of 1994 is allowed and the appellant Balu Ramdas Sangle is acquitted of the offences 13 APEAL-JG-25.94 punishable under Sections 376(2)(a), 366, 376 r/w Section 109 and Section 506 of the IPC. His conviction for those offences and the sentences imposed upon him are set aside. His bail bonds stand cancelled. 13. Criminal Appeal No.35 of 1994 is partly allowed. The conviction of the appellant Machhindra Kannusingh Chavan for the offence punishable under Sections 376(2)(a), 366 and 506 of the IPC is set aside. His conviction for the offence punishable under Section 377 of the IPC is maintained. 14. This takes me to the question of sentence. The appellant Machhindra had been sentenced to RI for five years with fine of Rs. 300/- for the offence under Section 377 of the IPC by the learned Additional Sessions Judge. The learned counsel for the appellant is right in submitting that the incident occurred on 1-4-1992, that is almost 19 years ago. The conviction was handed down on 26-11-1993, that is about 18 years ago. The appellant was in jail throughout the trial, that is from 25-8-1992 till he was bailed out pursuant to the orders of this Court on 1-2-1994, that is for almost one-and-half year. The learned APP 14 APEAL-JG-25.94 submitted that this cannot be a consideration for reducing the sentence imposed upon the appellant since the appellant had abused his position as a police constable and had disgraced the Department by indulging in such a dastardly act. He submitted that therefore the sentence of RI for five years imposed upon him for the offence punishable under Section 377 of the IPC should be maintained. 15. Considering the genesis of the act and the fact that the appellant has been convicted almost 18 years ago for an incident which took place 19 years ago and has been living in the shadow of the conviction all along and must have lost his job in the process, it may be appropriate to reduce the sentence to that already undergone, which is upwards of one- year-and-six months with increase the fine from Rs.300/- to Rs.10,000/-, or in default to suffer RI for a period of three months. If the appellant does not pay the amount of fine within four weeks, the learned Sessions Judge would take the appellant in custody and send him to suffer RI for three months in default of payment of fine. If the amount of fine is paid 15 APEAL-JG-25.94 within the period stipulated, his bail bonds to stand cancelled. Sd/- (R.C. CHAVAN, J.)