1 Appln266.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.266 OF 2011 (FOR LEAVE TO APPEAL) IN CRIMINAL APPEAL NO. OF 2010 (AGAINST THE ORDER OF ACQUITTAL) KJ The State of Maharashtra )..Applicant (Org.Complainant) Vs. Vinamra Vimalkumar Soni & Ors. )..Respondents ---- (Org.Accused 1 to 6) Ms.S.V.Gajare APP for the applicant. Mr.H.H.Ponda for respondent nos.2, 3, 5 & 6. Ms.Rohini Salian and Smt.C.S.Khanna for respondent no.1. Mr.D.U.Mirajkar for respondent no.4. ---- CORAM : NARESH H. PATIL & MRS.MRIDULA BHATKAR,JJ DATE : 29/6/2011. ORAL ORDER : ( PER : MRS.MRIDULA BHATKAR,J) 1 The State has filed this application for leave to file appeal against the Judgment and order of acquittal dated 6.10.2010 2 Appln266.11.sxw passed by the learned Additional Sessions Judge, Sewree, Mumbai. All the accused were charged for the offence of gang rape punishable under Section 376 (2) (g) of IPC. They were tried and trial concluded in acquittal. 2 Being aggrieved by the said judgment and order, the State wants to file the Appeal against the order of acquittal. Hence seeks leave. 3 As per the case of the prosecution, the incident of gang rape has taken place on the night intervening 11.4.2009 and 12.4.2009 in one flat at Andheri. Prosecutrix is a Foreign National. She was doing a course in Gender and Development in Tata Institute of Social Sciences, Mumbai. On the night of 11.4.2009, she and her friend met accused nos.1 to 5 and had drinks in one XO club at Chembur. In the club, the prosecutrix was pressurized to consume liquor. Her friend left for work to the institute and the prosecutrix along with accused nos.1 to 5 proceeded towards Andheri as she wanted to go to her friend and the boys told her that they will 3 Appln266.11.sxw drop her to her friend. While they were proceeding towards club in two rikshaws, accused changed their plan and they took her to the flat of accused no.6 at Andheri. In the flat, all six accused and the girl spent night together. During the night i.e. early dawn hours of 12.4.2009, accused nos.1, 2 & 3 sexually assaulted her which she dis-liked and resisted. She went in the toilet and was locked herself from inside and tried to contact her friends. Accused knocked the door of the toilet, so she came out. Due to consumption of liquor and date rape drug was administered to her, she was feeling dizzy. She lost her consciousness at around 4.30 P.M. and when she re-gained her consciousness at about 10.00 to 10.30 A.M., she found that her underwear and pants were taken down, and her bra was undone. She noticed accused nos.1 & 3 sleeping aside the bed and accused no.2 was playing with her hair which she did not like. She was scared and feeling giddy, disgusting. She went to the toilet as she was menstruating. She found her tampon was deep inside. She wore clothes and along with accused nos.1 & 2 she left the flat. Accused Nos.1 & 2 took her to the Chemist and there, accused no.2 advised her to take 4 Appln266.11.sxw contraceptive- I-Pill which she purchased and had it. 4 It is the case of the prosecution that the prosecutrix after considering her physical condition and the behaviour of the accused, realized that she was raped during night by all the accused and therefore, she told her Course co-ordinator PW-14 Ms.Shruti chakravarty on phone in the evening at 6.00 to 6.30 P.M on the same day and disclosed the fact of rape by the accused to her. After consulting, both went to Rajawadi hospital and prosecutrix was medically examined at the same night at around 10.55 P.M. On the same day, she did not lodge complaint but she gave FIR on 15.4.2009, two days later. Prosecutrix did not lodge complaint immediately because she is from the different country and only after having talk with her mother and relatives, she mustered courage to give FIR. FIR was registered by Trombay police station. They registered offence against all the accused and within couple of days accused were arrested. After completion of the investigation, Trombay Police filed charge-sheet against all the accused and charge was framed under Section 376 (2) (g) read 5 Appln266.11.sxw with 34 of IPC. 5 Learned APP has submitted that the judgment of the Sessions Court is wrong and there is sufficient evidence against the accused which the learned Sessions Judge ought to have considered properly. She submitted that the presence of the accused and prosecutrix in the flat is proved by the prosecution. The fact that on the evening, prosecutrix and the accused had drinks in XO Cafe, is also not disputed. She submitted that in the evidence of the prosecutrix PW-2, she has deposed that she was forced to drink Vodka and beer though she was not willing and was administered date rape drug. After consumption of the drinks, she wanted to go to club to meet her friend, however, accused took her to the flat of accused no.6. She submitted that all the accused have designed to spend a night with her in privacy and commit rape, therefore, she was taken to the flat. Learned APP further submitted that from the deposition of prosecutrix PW-2, the specific allegations in respect of sexual assault made by accused nos.1, 2 & 3 were before the court and the prosecutrix also stated 6 Appln266.11.sxw that she did not like it and therefore, in order to save, she locked herself inside the bath-room. She stated that as she was unconscious, she did not know what had happened with her physically. When she regained consciousness, her clothes were not properly on her person. Learned APP further submitted that fact of rape was confirmed when she found her tampon was deep inside and accused no.2 insisted her to go to the Chemist shop and have contraceptive I-Pill. She submitted that unless there could have been such incident, there should not have been such insistence to have I-Pill. She further submitted that prosecutrix thereafter has disclosed the incident of rape to her Course co- ordinator Ms.Shruti Chakravarty PW-14. She pointed out that she was raped by accused no.2 and she has disclosed specifically that she was drugged. Evidence of PW-14 Ms.Shruti Chakravarty corroborates the evidence of prosecutrix PW-2 on the point of disclosure. Learned APP further submitted that prosecutrix immediately on the same day, was medically examined. However, prosecutrix has deposed that she had bath before medical examination and she was menstruating and therefore, medical 7 Appln266.11.sxw evidence of semen was not available in her body. She gave history of rape to M.O. Learned APP further submitted that if she was raped when she was unconscious, there cannot be any resistance, then no injury can be expected. Learned APP relied on Exhibit-64 i.e medical report. She further pointed out that C.A report which is marked as Exhibit-148 discloses that stains of semen were found on the T-shirt of accused no.1 and this is an important circumstance which corroborates the fact of rape and that is not taken in the account by the learned Sessions Judge. She further pointed out that no microscopic examination for detection of the sperm was done by the C.A and this is a lacuna in the investigation. However, for the lacuna in the investigation, benefit should not be given to the accused and the evidence of prosecutrix-PW-2 ought to have been accepted as truthful and it is sufficient for conviction. Learned Sessions Judge should not have acquitted the accused. Hence, leave be granted. 6 At the stage of admission, on notice all the accused have appeared. Learned Counsel appearing for accused nos.1 to 6 8 Appln266.11.sxw opposed this application at the stage of admission. 7 It was submitted that there is no evidence on the point of rape against the accused. The evidence of the prosecutrix and the evidence of the other witnesses are full of discrepancies and infirmities. Learned Counsel submitted that evidence of prosecutrix PW-2, for want of corroboration and also for want of cogent evidence, does not inspire confidence. It was pointed out that in the cross-examination, prosecutrix had admitted she making continuous phone calls to her other friends from mid-night till 5.33 A.M of 12.4.2009. Learned Counsel on the basis of the documentary evidence Exhibit-60, 61 & 62 i.e details of the cell phone calls, pointed out that she was continuously talking with her friends at night and she had an opportunity to disclose and make grievance about her situation that she has been subjected to sexual assault by these accused. It was further submitted that it is a blown up case by the NGOs and Investigating officer did not open the envelope of the complainant which was received from one NGO which was forwarded by Tilak Nagar police station to the 9 Appln266.11.sxw Trombay police station. 8 Heard both sides at length. It is a settled law that in the rape cases, conviction can be based on the sole evidence of the prosecutrix, if her evidence inspires confidence. We are also aware that prosecutrix is a Foreign National and such cases needs high degree of caution and sensitivity. However, when we were going through the deposition of PW-2 prosecutrix, it was noticed that the evidence on the incident of sexual intercourse is absent. In the rape case, the evidence of the prosecutrix that there was sexual intercourse without her consent, is a direct and substantive evidence. If such direct evidence is not available, because prosecutrix was unconscious, then other indirect/circumstantial evidence is expected to be brought on record to prove a fact of rape. However, in the present case PW-16 Dr.Meenal Sarmalkar, Medical officer, in her evidence has not stated about such medical evidence like lesions etc. which could lead her to opine that prosecutrix was raped. Medical certificate Exhibit-64 which was filled in by M.O as per answers given by the prosecutrix falsifies 10 Appln266.11.sxw case of the prosecution on sexual advances. In C.A report semen of accused no.1 was found on his clothes, which also does not connect the actual act of sexual intercourse. There should be some indirect evidence to show that the girl had a sexual intercourse. C.A report states that blood stains were found on the under-wear of the prosecutrix. This was obvious because she was menstruating at that time. We do appreciate that due to unconsciousness, no marks can be expected. An unconscious woman can be raped, as consent is absent. However, some evidence is required to admit the matter and to say that the judgment passed by the learned Sessions Court is erroneous and illegal. Here we see that plausible view is taken by the Sessions Court. Learned Sessions Judge has dealt with the evidence of the prosecutrix and the circumstances, which might have helped the prosecution if the substantive evidence would have been tendered. We think it is an unfortunate and sad case. The circumstances like spending night in a flat, thereafter have some sexual advances with her and then she was found without clothes, asking her to take I- Pill would have definitely helped if substantive evidence of sexual 11 Appln266.11.sxw intercourse would have been brought on record. Under such circumstances, we do not find any illegality in the judgment passed by the learned Sessions Judge to grant leave. Hence, application is rejected. (MRS.MRIDULA BHATKAR,J) (NARESH H.PATIL,J)