1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO.629 OF 2001 CRIMINAL APPEAL NO.629 OF 2001 CRIMINAL APPEAL NO.629 OF 2001 Vijay Pralhad Warbuvan ] C-11883, ] Presently undergoing sentence ] at Yerwada Central Prison,Pune. ] .. Appellant versus 1. The Senior Inspector of Police] Trombay Police Station ] 2. State of Maharashtra ] .. Respondents. WITH WITH WITH CRIMINAL APPEAL NO.630 OF 2001 CRIMINAL APPEAL NO.630 OF 2001 CRIMINAL APPEAL NO.630 OF 2001 ALONG WITH ALONG WITH ALONG WITH CIMINAL APPLICATION NO.5847 OF 2005 CIMINAL APPLICATION NO.5847 OF 2005 CIMINAL APPLICATION NO.5847 OF 2005 Amteesh Subashchandra Rai ] C-11884, ] Presently undergoing sentence ] at Yerwada Central Prison,Pune. ] .. Appellant versus 1. The Senior Inspector of Police] Trombay Police Station ] 2 2 2 2. State of Maharashtra ] .. Respondents. WITH WITH WITH CRIMINAL APPEAL NO.631 OF 2001 CRIMINAL APPEAL NO.631 OF 2001 CRIMINAL APPEAL NO.631 OF 2001 Anand Omprakash Sharma, ] aged about 25 years, student ] resident of Row House No.3, ] Plot No.26, Sector No.3, ] New Panvel Pin Code 410 2006 ] (Present lodged as Convict ] Prisoner No.11885, Circle No.1 ] .. Appellant Barrack No.6, Yerwada Central ] (Original Prison, Pune 411 006. ] Accused No.3) versus 1. The Senior Inspector of Police] Trombay Police Station 400088] 2. State of Maharashtra ] C/o The Public Prosecutor ] High Court, Bombay. ] .. Respondents. Mr.R.B.Mokashi with Mr.Sameer Vaidya for the Appellants - Original Accused Nos. 1 and 2. Mr.Clive D’Souza for the Appellant - Original Accused No.3. 3 3 3 Mrs.G.P.Mulekar, APP, for the State/respondents. CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. DATED : JANUARY 23, 2007. DATED : JANUARY 23, 2007. DATED : JANUARY 23, 2007. COMMON JUDGMENT [PER D.G.DESHPANDE,J.] COMMON JUDGMENT [PER D.G.DESHPANDE,J.] COMMON JUDGMENT [PER D.G.DESHPANDE,J.] 1. All the three accused, who have filed their respective appeals, have been convicted by the Additional Sessions Judge, Greater Bombay, by his judgment dated 2nd March 2001 for the offences punishable under Sections 363, 366 and 376 (2)(g) of the Indian Penal Code and, sentenced to suffer seven years R.I., ten years R.I. and life imprisonment along with fine of Rs.10,000/- each. All the substantive sentences to run concurrently. 2. Victim girl of gang rape is a convent (i.e. English Medium School) going girl of about 11 years by name "X" (We are not disclosing her name in the judgment). She is P.W.No.2. According to the prosecution, this victim girl 4 4 4 used to attend tuition classes at the house of one Sangita where these three accused were teaching as teachers. [These accused were also studying at the relevant time in the colleges]. The date of the incident is 9th September 1997. On that day, in the Community Hall, situated at NAD Colony, Mankhurd, Ganapati was installed. It was the 4th day after installation of Ganapati. The victim girl along with her three friends, in the evening, had gone there to have a Darshan of Ganapati. At that time, the accused came there. They had belts in their hands. Therefore, three friends of the victim girl got frightened and they ran away. The victim girl could not run away because she had an injury to her right leg, because of beating given by accused Vijay in the tuition class. Then all these three accused caught hold of her and in open passage of veranda adjoining to Community Hall they committed rape upon her and then they left giving threats to her. 3. The victim girl went to her house. It was night time. She did not disclose the incident to her mother. Next day she was taken to Kalamboli which is at a distance of two hours 5 5 5 by bus from the residential place of victim girl. The victim girl was complaining of stomach pain. She was given paracetamol medicine. Soframycin was also applied to her. At Kalamboli initially the victim girl did not tell anything to her maternal aunt. But later on the victim girl confined to her aunt about the rape committed by all the accused. Next day the aunt (PW 1) brought the victim girl and her two brothers to their house at Mankhurd where the mother of victim girl was informed about the incident of rape. Then thereafter the victim girl was taken by the mother and aunt to Municipal Dispensary of Chitta Camp where the mother (PW 6) was employed. The doctors were informed about this incident. But Dr.Sharmila and Dr.Jyoti told them that since this was a police case, the victim girl should be taken to some big hospital or Shatabdhi Hospital and lodge a complaint with Trombay Police Station. 4. But P.W.1 and P.W.6 did not do either of this and on 11.09.1997 they took the victim girl to a private doctor by name Dr.Shivani at Chembur. Dr. Shivani also gave same advice. Then P.W.1, P.W.6 and the victim girl went to 6 6 6 Trombay Police Station and lodged a complaint. Offence of gang rape was registered against these three accused. The police went with the victim girl to the spot and prepared spot panchanama. The accused were arrested and thereafter on 12.9.1997 the victim girl was sent to Nagpada Police Hospital for medical examination. There Dr.Kelwekar examined the victim girl and submitted his reports of attempting sexual intercourse. The accused were sent for their medical examination. Their blood and blood of the victim girl was collected and sent to the Chemical Analyser. 5. The clothes of accused were seized under panchanama. They were packed, labelled and sealed, and sent to the Chemical Analyser along with the clothes of victim girl. Those clothes were handed over to the police by the mother of victim girl on 13.09.1997. The statements of witnesses were recorded by P.W.9 including the statements of mother, aunt, Dr.Sharmila, and Dr.Jyoti. Attempts were made to record the statements of witnesses from NAD colony. But nobody came forward. Thereafter charge sheet came to be filed and the accused were made to 7 7 7 face trial. 6. The defence of accused was of total denial and false implication. 7. The prosecution examined ten witnesses which included Savita-(PW.1)-Maternal Aunt (Mausi) of victim girl; PW.2-the victim girl ‘X’; PW.3-Dr.Vijay Kelwekar who examined the victim girl with reference to her alleged rape by the accused persons; PW.4-DR.Jyoti Atre; PW.5-Subhan Kashim, the Panch regarding clothes of accused No.1; PW.6- Mother of victim girl; P.W.7-Maternal uncle of victim girl; PW.8 PSI Manoj Jadhav-the IO.; PW.9 API Shivaji Birajdar the IInd IO.; PW.10 PI Ram Gajare the IIIrd IO. . Number of documents were brought on record, witnesses were examined at length, parties were heard at the end of trial and, the trial Court found that the accused were guilty of gang rape and, therefore, the trial Court convicted and sentenced the accused as stated above. Hence these three appeals. 8 8 8 8. We heard the arguments on 29.11.2006 and on 13.12.2006. During the course of arguments, all the advocates for the accused requested that it would be better if the Court visits the spot. The learned APP also supported that prayer. And, therefore, We visited the spot on 07.12.2006. Rough sketch map of the scene of offence (the Community Hall) was prepared by one of us. It was shown to the learned advocate for the accused and the APP. They agreed it to be correct and therefore that map or sketch would be forming part of the judgment. 9. Even though there are three advocates for three different accused, learned advocate Mr.Mokashi made all his submissions covering the case of all the accused and he was supported by the remaining advocates with addition to certain points of their own case. Learned Advocate Mr.Clive D’D’Souza argued at lenght for Accused No.3. We are considering all those submissions. 10. According to Mr.Mokashi, leaving aside the question as to why a girl of 11 years of age should falsely implicate these accused in such a heinous crime, the prosecution story was totally 9 9 9 and completely improbable and impossible and therefore question of false implication in such cases should not be dominating factor to decide. He contended that if the case is found to be false, improbable and impossible upon appreciation of evidence, then question as to motive behind false implication did not assume much importance. 11. In support of his contention he relied upon number of factors. Admittedly, there are no eye witnesses to the incident. But this, according to Mr.Mokashi is a strong impossibility or improbability, as has appeared in the evidence, the community hall is a hall in NAD Colony at Chembur. In that colony there are 25 to 30 buildings. In each building there are 4/5 flats all occupied by the residents. This community hall is in the centre of the colony. The Ganapati festival had started on 6th September 1997. It was Sarvajanik Ganapati, and not privately installed, where cultural programs were being held daily. 12. In the open area around the community hall the boys and girls used to play cricket and 10 10 10 other games. The time of the alleged rape is 18 hours on 9th September 1997. The alleged rape was committed in the open passage of veranda of community hall and, therefore, it was impossible firstly that there would be a gang rape at such a place which was supposed to be frequented by people because of Ganapati festival. He also argued that in the community hall there were bound to be other persons from the management looking after the idol of Ganapati and, therefore, the story of gang rape on the face of it appears to be improbable. 13. Mr.Mokashi also urged that the open passage of veranda of community hall, where the gang rape was alleged to have taken place, is just abutting the main hall which was about 40 ft. wide and 80 ft. length and the passage was Four and half ft wide and 80 ft. in length. The spot at which the rape was alleged to have taken place was just outside the window in the hall of the size of 5 ft x 4 ft. with a big door just adjacent to veranda with one side wall of 3 ft. 6 inches and the wall of the hall on the other side. Therefore, according to him, if at such a time and place three persons committed rape upon 11 11 11 a young girl, the story was inherently improbable and impossible. 14. In fact, Mr.Mokashi and Mr.D’Souza have taken us through the entire evidence and commented upon it extensively. We can deal with those aspects at a proper place. But we are reproducing their main submissions. 15. Another important submissions of Mr.Mokashi was that the victim girl was a convent educated girl, she was quite capable of understanding as to what the accused are doing, she had shown courage to show to the trial Court her position at the time of rape by actual demonstration, but even then she was assertive of the fact that the alleged rape was committed upon her by the accused and if that evidence is accepted, then it is not a case of rape at all. 16. According to Mr.Mokashi, the theory of gang rape was not at all supported by the medical evidence. Dr.Kelwekar, who had seen and examined the victim girl, did not find any injury on the body of the victim girl. There were no injuries 12 12 12 on her back or any part of her body excepting small bruise on her private part. Our attention was drawn by Mr.Mokashi to the evidence of Dr.Kelwekar wherein the doctor has admitted that if the rape i.e. the forcible intercourse was committed upon a girl of 11 years then the injuries like rupture of hymen, bleeding through the hymenal tear, tears in perinium, broaden the gait and pain and lastly swollen of labia majora are possible, and if the girl of such a age was raped by three persons, the injuries would be much more than the aforesaid injuries. Mr.Mokashi also pointed out that Dr.Kelwekar has admitted that all these injuries were absent when he examined the victim girl accordingly. 17. Mr.Mokashi also contended that absence of any corresponding injuries indicating use of force and violence by three accused on the body of victim girl, absence of any tearing of her clothes, absence of blood stains or semen on her clothes, absence of blood or semen or vaginal discharge on the clothes of the accused and absence of any injury on the persons of any of the accused also was sufficient and strong enough to create doubt about the story of gang rape. 13 13 13 18. Mr.Mokashi then contended that there was delay in lodging the FIR. However, he conceded that in rape cases delay was an usual occurrence. The other aspect, that was strongly critisized by the advocate for the accused, was that even though according to the victim girl, she was accompanied by three of her friends, when she went to the community hall, at that time and on that day of incident, the I.O. did not record the statement of any of those witnesses. That, according to Mr.Mokashi, was a very serious lapse sufficient to doubt the entire story of the prosecution. He also pointed out that the IO did not record any statements of the persons looking after the celebration of installation of Ganapati in the community hall and also the persons who had visited that hall on that day and at the relevant time and, similarly no statement of any of the persons belonging to the management of Sarvajanik Ganeshotsav Mandal was recorded. Further not recording of any statement of any of the occupants of the adjoining building was also a serious lapse on the part of the prosecution. 19. Coming to the actual evidence of the 14 14 14 victim girl in Court, Mr.Mokashi contended that there were not less than 25 to 30 omissions and contradictions in her evidence with reference to her FIR and most of these contradictions and omissions were material and, this affects seriously the credibility of the victim girl. 20. Mr.Mokashi also made submission with reference to his arguments that this could not be a case of gang rape by three accused, with reference to structure, weight and height of each of the accused and that of the girl. Most important contradiction and omission of the victim girl is with reference to the manner in which she was raped. In the FIR she has stated that she was made to lie down on the ground and then three accused raped her in succession, whereas before the Court she has stated that the accused raped her while she was standing in the open passage of the Veranda adjoining to the community hall. We will deal with that aspect of contradictions at length separately because there are too many contradictions and omissions which cannot be summarised in the submissions being recorded of the advocates. 15 15 15 21. Mr.Mokashi also urged that admittedly, P.W.1 - the Aunt (Mousi) and P.W.6 - the mother of the victim girl are not the eye witnesses of the incident. But they are the witnesses to whom the victim girl made disclosure of the incident of rape upon her. He pointed out from their evidence that from the time of rape i.e. 9/9/97 till lodging of FIR on 11/9/97 around midnight, there was no reason for the victim girl not to disclose the incident and there was no explanation why there was inordinate delay. He also contended that the IO did not give any satisfactory explanation why he did not send the victim girl immediately for medical examination, but waited till next day morning. 22. Mr.Mokashi also contended that according to the version of victim girl, given in the court, the incident lasted about one hour. According to him, even if the concession is given to the victim girl, having regard to her age, about the time factor, in any case it was not less than 20 to 25 minutes and, then in that case it was highly impossible and improbable that not a single soul turned in the community hall to take Darshan of Ganapati or nobody, who were 16 16 16 present in the community hall, noticed the rape being committed upon the victim girl in the veranda of community hall. Mr.Mokashi also contended that the victim girl admitted in the Court that she understood the difference between toilet portion of the body and bathroom portion of the body. But even then repeatedly she asserted that the so called alleged rape was committed by the accused with reference to toilet portion of her body. This according to Mr.Mokashi is a serious circumstance creating doubt about the case of the prosecution. 23. On the other hand, the learned APP Mrs.Mulekar, appearing for the State/respondents, contended that rupture of hymen is not necessary in all cases of rape and there is a judgment of the Apex Court that in every case of rape there need not be evidence of rapture of hymen. She then contended that there was no explanation from the defence as to why the victim girl, her aunt and mother would go to the extent of falsely implicating the accused in such a heinous crime. The next contention of the learned APP was that Ganapati installed in the community hall, though was of sarvajanik Mandal, the locality was 17 17 17 limited to NAD colony and it was not necessary that the community hall was flooded with people. Therefore, according to her, absence of independent witness could not be a circumstance to be taken in favour of the accused. Regarding non-examination of three friends of the victim girl and persons from the community hall who were looking after the management of Ganapati festival, she contended that the IO has given explanation that the witnesses were reluctant to come forward and, the three friends of the victim girl had disclosed that they were not knowing anything about the incident. Therefore, according to her, not recording statements of those witnesses and their non-examination did not matter. 24. Regarding absence of injuries on other parts of the body of victim girl and on the persons of accused, Mrs.Mulekar, the learned APP contended that it is not that in every case there should be injuries on the persons of the accused and victim. It depends upon the resistance put forth by the victim and the force applied by the accused and, if that is not there, then there is no possibility of any other injury on the person. 18 18 18 She also contended that the structure, weight and height of each of the accused and that of the victim girl did not relevance in case of rape, because any human being could commit rape on any woman. 25. Regarding delay of about 56 hours in lodging the FIR and delay of 72 hours in sending the victim girl for medical examination, the learned APP contended that women are reluctant to go immediately to the police in rape cases and, therefore, the delay on both the counts was required to be considered as reasonable and justified. 26. Regarding omissions and contradictions in the evidence of P.W.2, in particularly, and in the evidence of other witnesses i.e. P.W.1 and P.W.6, the learned APP contended that those contradictions and omissions did not materially affect the story given by the witnesses and, therefore, this was not a case where any benefit could be given to the accused. Therefore, according to her, the prosecution had proved its case beyond reasonable doubt and the accused were rightly convicted and sentenced by the trial 19 19 19 Court. 27. It was one of the main contentions of Mr.Mokashi, the advocate for the accused, that the testimony of victim girl ‘X’ (PW 2) becomes highly doubtful and suspicious because of multiple contradictions and omissions on the vital aspects of prosecution case. So far as contradictions are concerned, they have been numbered by the this Court from A to I i.e. 9 contradictions are there and omissions are also many. 28. It would be necessary to consider what are the important omissions in the evidence of P.W.2. If all the minor omissions and major omissions are considered, they may be more than two dozen. But we are noting down the major omissions. These omissions are with reference to positive assertion in the Court and absence of that part in the FIR or in the statement of victim girl (PW 2) recorded by the police. So We are noting down what is stated by her in the Court but absent in the police statement. 1. The names of Bhushan, Sagar and Prerana 20 20 20 with whom the victim girl had gone to the community hall are absent. absent. absent. 2. In the community hall there was nobody when the victim girl went with her friends is absent. absent. absent. 3. When the victim girl was leaving the community hall she saw the accused persons entering the hall is absent. absent. absent. 4. The fact that all the three accused had belts in their hands is absent. absent. absent. 5. The fact that when the victim girl came after seeing Ganapati they were playing outside and at that time the accused came there is absent. absent. absent. 6. The fact that the victim girl was left all alone behind while running away and others had already left and she started shouting and at that time Vijay threatened her is absent. absent. absent. 21 21 21 7. The fact that the victim started shouting as the accused were coming with their belts is absent. absent. absent. 8. The fact that the accused caught hold of her in the community hall itself is absent. absent. absent. 9. The fact that accused Vijay had assaulted her on her legs two days prior to the incident and that she could not run because of that injury on her legs is absent. absent. absent. 10. The fact that while she was standing position at the wall, the incident of rape took place is absent. absent. absent. 11. The fact that after the incident the accused persons put frock and underwear on her person is absent. absent. absent. 12. The fact that the accused persons left the victim half way to the home and 22 22 22 threatened her that if she tells the incident to anybody they would kill her Mama and Mousi is absent. absent. absent. 13. The fact that the victim had stomach pain and her Mousi (PW 1) gave her paracetamol is absent. absent. absent. 14. The fact that the victim told her mother about the incident on the way to the hospital is absent. absent. absent. 15. The fact that all the accused lifted her, took her away behind the wall and removed her frock is absent. absent. absent. 16. The fact that Vijay was in front and Amitesh and Anand were standing behind is absent. absent. absent. [This is with reference to the actual incident of rape] 17. The fact that when Amitesh did the act upon victim, Vijay and Anand were standing behind is absent. absent. absent. 18. The fact that when Anand did the act, 23 23 23 Vijay and Amitesh were standing behind is absent. absent. absent. 19. The fact that all the accused persons raped her while victim was standing and as demonstrated by her in the Court is absent. absent. absent. There are other omissions regarding narration given by victim girl about the incident to her Mousi and mother and regarding other aspects, but in