:1: cri.appeal.450.04J ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.450 OF 2004 IN SESSIONS CASE NO. 436 OF 2003 IN C.R.NO.42 OF 2003 Kalicharan Patiram Srivastava Residing at 160/225, Ambedkar Nagar Group No.2, Opp. Gaikwad Garden Tagore Nagar Vikhroli(E), Mumbai ..Appellant VS State of Maharashtra (At the instance of Vikhroli Police Station) ..Respondent Mr. Murtaza M. Najmi, for Appellant. Smt. V. R.Bhosale, for Respondent. CORAM : A.M. THIPSAY, J. DATE : 16th September,2011 ORAL JUDGMENT : The Appellant was prosecuted on the allegation of having committed offences punishable under Sections 376 IPC, 354 IPC, 384 :2: cri.appeal.450.04J IPC, 420 IPC, 506 IPC, and 509 of the Indian Penal Code, as also an offence punishable under the Press and Registration of Books Act, 1867. The Learned Additional Sessions Judge, after holding a trial found the appellant guilty in respect of the aforesaid offences and sentenced him as follows: (a)For the offence punishable under section 376 of the I.P.C - R. I for a period of Seven years and a fine of Rs.3,000/-. In default of payment of the fine amount, further S.I for a period of one month. (b)For the offence punishable under Section 384 of the IPC - R. I for a period of Three years and a fine of Rs.1,000/-. In default of payment of the fine amount, further S.I for a period of one month. (c)For the offence punishable under Section 354 of the IPC - R. I for a period of Two years and a fine of Rs.1,000/-. In default of payment of the fine amount, further S.I for a period of one month. (d)For the offence punishable under Section 506 of the IPC - R. I for a period of Two years and a fine of Rs.1,000/-. In default of payment of the fine amount, further S.I for a period of one month. :3: cri.appeal.450.04J (e)For the offence punishable under Section 509 of the IPC - S.I for a period of one year and a fine of Rs.1,000/-. In default of payment of the fine amount, further S.I for a period of one month.” 2. Being aggrieved by the order of conviction and sentences, the Appellant has approached this Court by filing the present Appeal. 3. The prosecution case before the Trial Court, as mentioned by the Trial Court in it’s judgment is as follows: The Appellant, at the material time, was the Editor of a newspaper, which was published by him under the name and style of Crime Samachar and Crime Railway Samachar. The Appellant induced several girls to join his office. The Appellant would pressurize them and outrage their modesty. He also had forcible sexual intercourse with two such girls by blackmailing them of publishing posters of their photographs stating that they were prostitutes. Finally, one of the said girls reported the matter to the Police, and lodged a report, which was treated as First Information Report and a case in respect of offenes punishable under Sections 376 IPC, 384 IPC, 385 IPC, and 506( Part II) of the Indian Penal Code was registered against the Appellant. After :4: cri.appeal.450.04J investigation, a chargesheet was filed pursuant to which, the Appellant was prosecuted and convicted as aforesaid. 4. Since nobody appeared for the Appellant,and since he was reported to be in prison, Mr. Murtaza M. Nazmi,Advocate was appointed under the Free Legal Aid Scheme to prosecute the appeal. I have heard him and Smt. V. R. Bhosale,the learned APP for State. 5. With the assistance of the learned Counsel, I have gone through the entire record of the Trial Court. I have carefully gone through the evidence and the impugned judgment. 6. Totally 14 witnesses were examined for the prosecution during the trial. The Appellant did not examine himself as a witness and did not adduce any evidence in defence. 7. The case rests primarily on the evidence of two women, who claimed that they had been raped by the Appellant. These two women shall be referred to as Victim-I (PW-2), and Victim-II(PW-3) so as to avoid disclosure of their identity. :5: cri.appeal.450.04J 8. The Victim-I(PW-2), in her evidence, stated that till the year 2000, she was working as a Sales girl at the Vikhroli Shopping Center. One Renuka (PW-11) was also working with her. That, sometime in December 1999, Victim-I and the said Renuka were sitting in a garden known as Priyadarshani Garden. At that time, the Appellant, who was not known to the Victim No-I and said Renuka previously, came there. He made some enquiries with the Victim-I and the said Renuka about the nature of their work and then said that the work which they were doing was not very respectable. That, he told them that he was a Journalist having prestigious position and that the Police and other big people were afraid of him. He also boasted that by his one letter enquiries against such people would start. He advised the victim-I and said Renuka to join him as reporters and that they would make a career. He told them that he would give Rs.2,000/- p.m as salary to them, and, additionally, would also provide for Bus and Train fare. The Victim-I and the said Renuka were quite happy with this proposal and on 1st January, 2000, they joined him. The Appellant got prepared identity cards for them. He informed them that ( because of such identity cards) anybody would be scared of them. :6: cri.appeal.450.04J According to Victim-I, the Appellant used to take them to drug peddlers, Matka dens and lodges where illicit businesses used to be run. The Victim-I had seen the Appellant receiving cash from different people by showing his identity card and on such occasion he would tell the Victim-I and said Renuka to see ‘ how the people respected him’. The Victim-I further stated that the Appellant had told her and others that they would not have any holiday and that they would be required to come at any time, including night time, in case of emergency. He had made the Victim-I and said Renuka understand that if they would not follow that, he would defame them and that, they would not find any job thereafter. The identity cards of the Victim-I and said Renuka, which were having photographs had been retained by the Appellant with himself. That, after the earth-quake on 06.01.2000, the Appellant took the Victim-I and the said Renuka to Bhuj. During that trip, the Appellant used to talk to them in a filthy manner. He used to deliberately press himself against their bodies while travelling in Bus or Rickshaw. While on the way, the Victim-I and Appellant stayed in one room in a Dharamshala at Baroda. During the day time, the Appellant and Victim - I went around the place and came to the room. After having dinner, :7: cri.appeal.450.04J Victim-I slept on the cot and Appellant slept on the floor. During the night, the Appellant put his arm around the victim, who was sleeping. The victim-I got up and started crying and told him to take her to Mumbai. He thereupon told her that first the people would ask her as to how she came with him from Mumbai and her reputation would be tarnished. The Appellant then brought Victim-I to Mumbai. On return to Mumbai, the Victim-I did not go for job. However, on the third day, the Appellant threatened her that he would give her photographs in the press to defame her stating that she was prostitute. He stuck photo of the victim on the paper and sent it to her house. He had written some defamatory matter below her photograph and had threatened that he would publish the same. The Victim-I then joined the Appellant’s office again. The Appellant did not give her salary for the months of February, March, and April. Whenever the victim would ask him about the salary, he would say that he would give her higher salary, but that, at that moment, he had no money. :8: cri.appeal.450.04J In May 2001, when the Victim-I and the Appellant were in the Appellant’s office, the Appellant shut the door of the office. The Appellant came near her and placed his hands on her shoulder. He said that he had made the provision for her salary. He asked the victim-I to stand up and held her tightly. When she told the Appellant to leave her, he hit her. He then fell her on ground and had forcible sexual intercourse with her. He thereafter, gave Rs.1,000/- to her and said some Shayari. According to Victim-I, she was put in a very awkward position by the Appellant and whenever she would ask for salary, he would have sexual intercourse with her. The Victim-I then gave up job and joined some other place, but the Appellant was giving her mental tension, and was telling her new employer that the Victim-I was of a bad character. He also threatened her that he would ask the Matka people, who were treating him with respect, to throw acid on her face. He was threatening her to join his services again. Ultimately, in the year 2003, the Victim-I decided not to go back to the Appellant’s office whatever be the consequences. The Appellant again threatened to publish some posters. It is thereafter that the Victim- :9: cri.appeal.450.04J I reported the matter to the Vikhroli Police station. The report lodged by her was treated as F. I. R( Exhibit- 11). The Victim-I has stated in the examination-in-chief itself that the Appellant was in the habit of smoking bidi and that while once he was smoking bidi, the Victim-I told him that it did not suit him and Victim-I pulled out bidi from his hand and at that time immediately the Appellant took her photographs. According to Victim-I, the Appellant was threatening her with that photograph. That photograph has been produced and tendered in evidence(Exhibit -13). Victim-I also stated that she received two letters from the Appellant, after the Appellant had been arrested. The letters had been sent by him from the Jail. These two letters and one note in the handwriting of the Appellant were produced before the Court( Exhibit-14 collectively). 9. Mr.Nazmi, the learned Advocate for the Appellant pointed out that, according to victim-I, first incident of misbehaviour of the Appellant with the Victim-I took place on 06.01.2000. He pointed out that the first act of rape allegedly took place in the month of May 2001, but the FIR came to be lodged only on 13.04.2003. He submitted that because of this inordinate delay in reporting the alleged offence :10: cri.appeal.450.04J committed by the Appellant, the version of the victim-I cannot be believed. 10. In the cross-examination, the victim-I stated that the job assigned by the Appellant to her, was of collecting press note from the office of the Commissioner of Police at Thane and Mumbai as well as New Bombay and to bring the press note to the Appellant. It is revealed in the cross examination, that the Appellant used to send victim-I to different persons for bringing money. According to her, the Appellant collected monies from people indulging into illicit business and that such persons were at Vikhroli, Kurla, Ghatkopar, Cuffe Parade, Jogeshwari etc. The Victim-I claims to have accompanied the Appellant during the trips of the Appellant for collecting the money from such persons. In the cross-examination, the victim-I admitted that she worked with the Appellant in spite of knowing what the Appellant was doing was wrong and explained it by saying that it was because the Appellant had told her that all the newspaperwalas do the same things. 11. Regarding the incident at Baroda, the victim-I states that she did not tell about the incident to her parents on her returning to Mumbai. She however, claims to have told the same to Renuka( PW-11). The :11: cri.appeal.450.04J learned Counsel for the Appellant pointed out that Renuka in her evidence has denied that the victim-I ever told her so. 12. In the cross-examination, the victim-I has further admitted that the place where the Appellant had his office was a slum area and that around that place, several families are residing. victim-I also admitted that a Masjid and Mothersa was about 2 to 3 feet away from office. Admittedly, the office room was ad-measuring 10 X 10 feet and that there was no partition. It has been elicited from victim-I that Appellant son used to reside behind the office room. 13. There is substance in the contention advanced by the learned Counsel for the Appellant that the victim-I cannot be relied upon and that she appears to have been consenting party . When the locality was so thickly populated, any cry raised by the victim-I would have attracted the attention of several persons and as such if the victim-I was not consenting party, there was no reason for her to have kept quiet during the alleged incident of rape. The story of the victim-I that he caught her both hands and then put her down and that when she shouted for help, the Appellant put his hands on her mouth and that he committed rape on her, is not believable. Apart from the fact that any cry raised by :12: cri.appeal.450.04J victim-I would have attracted the attention of several persons, it also appears that if the victim-I had offered resistance, it would have not been possible for the Appellant to have sexual intercourse with her. Interestingly, the victim-I admits that the Appellant thereafter, put Rs. 1000/- in her bag , which were accepted by the victim-I. 14. According to the victim-I, the Appellant had forcible sexual intercourses on about 10 to 12 occasions during the period from January 2000 to March 2003. The period during which the victim-I was employed with the Appellant, according to Victim-I, this had happened at two places i.e. in the office of the Appellant as well as a hut in Kannamwar Nagar. That, the rape had been committed in the office on two or three occasions. Apparently, on the other occasions, it was in the said hut. When questioned, as to why she had gone to the hut, the victim-I stated that the Appellant had taken her to the hut for making corrections in the newspapers. According to victim-I, every time, the Appellant was giving her different reasons for accompanying her to the hut. Admittedly, the said hut is surrounded by several other huts and many families reside there. According to victim-I, she used to shout for help. She claims that there were no people in the neighbourhood in the afternoon and :13: cri.appeal.450.04J therefore nobody used to assemble there when she used to shout for help. 15. Mr. Nazmi, the learned Counsel further pointed out that even after leaving the job with the Appellant, the victim-I did not report the matter to the Police immediately. He pointed out that it was reported to the Police ten days thereafter. victim-I was asked in the cross- examination, as to why she did not complain to the Police for ten days and this is what she has replied: “ I did not complain for ten days to the Police because I though that I could forget about it. ” 16. Mr. Nazmi, the learned Counsel for the Appellant, with reference to this and other circumstances states that the victim-I is an unreliable witness and that obviously she was a consenting party. 17. I am in agreement with the learned Counsel. In the first place, the story as narrated by the victim-I itself, is not very convincing. It appears that the victim-I was a party to the activities of the Appellant in collecting money from certain wrong doers. This indicates that she was a person of confidence of the Appellant. :14: cri.appeal.450.04J 18. Further, her explanation about she having shouted at the time of the alleged incident of rape, but that still nobody came for her rescue, is also not acceptable, considering that the places where the rape was allegedly committed namely the office of the Appellant and a hut in Kannamwar Nagar are situated in thickly populated area. The Police station was also quite close to the said hut. Further, it is inconceivable that the Victim-I would again and again go to the same hut after once having been subjected to forcible sexual intercourse at that place. If her story is to be believed, it would mean that in spite of having been raped in the said hut earlier and in spite of her having shouted and having realized that nobody comes for her help, she still accompanied the Appellant in the hut and permitted him to commit rape on her. This is so absurd that it does not need any further comment. The victim-I was also unable to state when the Appellant last had intercourse with her and at which place. This is quite interesting and apparently the Trial Court has also found it strange and unacceptable. Also, the story of the Victim-I put forth by her as an explanation with regard to her photograph, ( part of Exhibit-14 collectively), in which she is apparently smoking a Cigarette/ bidi, cannot be believed. According to her, she had pulled out a bidi from the hands of the Appellant, who was smoking the same and at that time the Appellant clicked her photographs. Now, this raises :15: cri.appeal.450.04J certain questions. The first being, what was the reason for the Victim-I to show so much concern and closeness for the Appellant. The second is, how could the Appellant from whose hands suddenly the bidi was pulled out, could have shown so much presence of mind to take up camera and take a photograph of the Victim-I before the bidi could be thrown away by her. In fact, when questioned deeper, in this regard, in the cross-examination, the Victim-I appears to have realized unbelievability of such story and has then changed her version by saying that she had taken it for the sake of fun. It is not to be suggested that because the Victim-I appears to have smoked a bidi or cigarette, her story of rape is to be disbelieved; but what cannot be overlooked is that the Victim-I has deliberately lied on this aspect. Further, that she had taken it for the ‘sake of fun’ is also significant because it would indicate the freeness and the freedom felt by her in the company of the Appellant, which would be relevant in the context of the possibility of she being the consenting party to the acts of sexual intercourse which might have taken place between her and the Appellant. If the victim-I was a person who was being raped repeatedly by the Appellant, against her wish, would hardly be comfortable while accompanying the Appellant and going to various parties and assisting extortion of money by him from others. She would hardly feel comfortable to have the fun :16: cri.appeal.450.04J of holding bidi or Cigarette in her hand. 19. If the evidence in respect of the medical examination of the Victim-I is seen, it shows that the Victim-I was habituated to sexual intercourse. The evidence of Dr. Pawne( PW-12) is clear on this aspect. This witness has also opined that even if the lady is lying flat on the floor, it is possible for a man to have intercourse with her, but that is possible only when she is cooperating with the man. It must be understood that it is not the case of the Victim-I that she did not resist because of the fear or the threats given to her by the Appellant, but her case is that she did resist and she did raise shouts on every such occasions, but that since it was an afternoon time, nobody was available in the neighbourhood to rescue her. 20. It appears plain to me that the evidence of this witness cannot be accepted at all. The allegations that the Appellant having been raped her, of having out-raged her modesty and of having threatened her, therefore, cannot be held to be satisfactorily established, on the strength of her evidence. :17: cri.appeal.450.04J 21. We may now examine the evidence of the other victim. This Victim-II lady (PW3) had stated that one Sabira Shaikh introduced her to the Appellant and that she went to the Appellant for the job. She had stated that the Appellant told her that she would have to go and bring money from the places which he would be telling her. That he had obtained her signatures on blank papers and that told her that if she refused to do the work, as told by him, he would take action against her on the strength of the papers signed by her. The Victim-II had also described the modus operandi of the Appellant and that he used to take her to the certain places and make her collect money from those places. According to her, whenever she would refuse to collect money, the Appellant himself would go and bring the money. According to her, whenever they would get late, they would go to lodges, hotels and sometimes it would be about 1.00 a.m to 2.00 a.m. According to the Victim-II, there ( in the lodge, hotel etc)the Appellant would assault her, remove her clothes and would have forcible sexual intercourse with her. According to her, first such incident took place in Wadala, in the office. Victim-II has narrated the incident as follows: That the Victim-II was sitting in the office and solving cross-word and Appellant was lying on the mat. That he latched the door from :18: cri.appeal.450.04J inside and Appellant came and caught her shoulder. At that time,somebody knocked the door and came in with two glasses of lassy. After the glasses were taken away, the Appellant once again latched the door from inside. The Victim- felt dizzy after drinking the lassy and then the Appellant hold her hands tightly and gave her slaps below her ear. When the Victim-II asked him not to do so, and that she would shout, the Appellant state that nobody could do any harm to him. It is thereafter that he removed her cloths and had forcible sexual intercourse with her. Whenever the Victim-II would resist, he would slap her. The Appellant threatened the Victim, that if she told any one about the incident, then he would throw acid on her face and spoil her reputation. According to the Victim-II, on the next day she did not go for work. The Appellant was sending the Victim-I to Victim-II, with a message that if the Victim-II did not come back to the work, he would publish her photograph in the newspaper with the report that she had taken Rs. 10,000/- 22. Victim-II had also stated that the Appellant had taken her to a place called Gudi in Khandwa in Madhya Pradesh. There the Appellant and Victim had stayed in one room for about 8 to 9 days and during this period the Appellant had repeated forcible sexual intercourse with her. :19: cri.appeal.450.04J When the Victim-II did not go to the work for two days, the Appellant had sent one lady by name Karima to her house and Karima was alleging that Victim-II had taken Rs.10,000/- from the Appellant and that the Victim-II would be killed. That, because of such threats the Victim-II was forced to go back to the work. That on one occasion, he had taken her to Bhiwandi in a hotel and he again raped her in the room of the said hotel. That the Appellant used to take her to various Matka dens, Gambling & liquor dens etc. He used to send the victim-I to the house of Victim-II and call the Victim-II with threats that he would sent 10 people to rape her and that he would kill her. 23. In the cross-examination, she admitted that she did not tell the incident of rape to