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. 37 OF 1990. CRIMINAL APPEAL NO. 37 OF 1990. CRIMINAL APPEAL NO. 37 OF 1990. WITH WITH WITH CRIMINAL APPEAL NO. 87 OF 1990 CRIMINAL APPEAL NO. 87 OF 1990 CRIMINAL APPEAL NO. 87 OF 1990 AND AND AND CRIMINAL APPEAL NO. 88 OF 1990 CRIMINAL APPEAL NO. 88 OF 1990 CRIMINAL APPEAL NO. 88 OF 1990 Cr.Appeal No.37/90. 1. Ramesh Parshuram Patil. 2. Suresh Kashinath Deo. 3. Devanand Shankar Vaidya @ Vaiti. 4. Raju Ramchandra Vaiti. 5. Tukaram @ Bal Sadashiv Mayekar. ... Appellants 6. Ranjan Eknath Pawar. (Org.Accused No. 1 to 6.) Versus. 1. The State of Maharashtra (At the instance of Mahim Police STation C.R.No.797/82). 2. Kum.Kalpana Laxman Dhamankar, Fisherman Colony, Bldg.No.9, R.No.347, Mahim, Bombay-16. ... Respondents Shri Sandesh D.Patil, Advocate (appointed) for the Appellants. Shri U.V.Nikam, A.P.P. for the Respondent No.1-State. Mrs.N.Bhagwat for Respondent No.2. Cr.Appeal No.87/90. and Cr.Appeal No.88/90. The State of Maharashtra. ... Appellant. (In both appeals) Versus. : 2 : 1. Ramesh Parshuram Patil. 2. Suresh Kashinath Deo. 3. Devanand hankar Vaidya. 4. Raju Ramchandra Vaiti. 5. Tukaram @ Bal Sadashiv Mayekar. ... Respondents 6. Ranjan Eknath Pawar. (Org.Accused.) (In both appeals.) Shri U.V.Nikam, A.P.P. for the Appellant in both appeals. Shri Sandesh D.Patil, Advocate (appointed) for the Respondents in both appeals. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATED : 29th September, 2006. DATED : 29th September, 2006. DATED : 29th September, 2006. 3rd October, 2006, 3rd October, 2006, 3rd October, 2006, 4th October, 2006, 4th October, 2006, 4th October, 2006, and and and 5th October, 2006. 5th October, 2006. 5th October, 2006. ORAL JUDGMENT. 1. These three Appeals can be conveniently disposed of by a common judgment. Criminal Appeal No.37 of 1990 is filed by the original Accused for challenging the Judgment and order dated 16th January 1990 passed by the learned Additional Sessions Judge, Mumbai. By the said Judgment and order the Appellants have been convicted for offences punishable under sections 307, 376 and section 201 read with section 511 of the Indian Penal Code. The conviction is as regards the offences where the victim is the prosecutrix Ms.Kalpana Laxman Dhamankar. So far as the offence alleged against the : 3 : prosecutrix Ms.Smita alias Prachi Prakash Waradkar is concerned, the Appellant No.1 and the Appellant No.6 have been acquitted of the offences alleged under section 366 and 376 of the IPC. The Appellants have been sentenced to suffer R.I. for 7 years for the offence punishable under section 307 of the Penal Code and to pay fine of Rs.500/- each. In default of payment, the Appellants have been directed to undergo R.I. for four months. For the offence under section 376 of the Penal Code, the Appellants have been sentenced to suffer R.I. for 7 years and to pay of Rs.300/- each. In default of payment of fine, the Appellants have been directed to suffer R.I. for two months. For the offence under section 201 read with section 511 of the Penal Code, the Appellants have been sentenced to suffer R.I. for six months. All sentences have been directed to run concurrently. Criminal Appeal No.87 of 1990 has been filed by the State seeking enhancement in the sentence awarded to the Appellants. Criminal Appeal No.88 of 1990 is also preferred by the State for challenging the order of acquittal for offences alleged where the victim was Ms.Smita alias Prachi. 2. Initially in these three Appeals, the accused : 4 : were represented by Shri V.L.Pradhan, Advocate. When these Appeals were called out for final hearing before this Court on 16th August 2006, the office noting showed that Court notices issued to the accused were duly served. The notices were issued as Shri V.L.Pradhan was no longer appearing. Though the accused were served with notice, they had not engaged any Advocate. Therefore, this Court directed the office to appoint an Advocate for espousing the cause of the Accused. Accordingly, Shri S.D.Patil has been appointed as an Advocate. 3. I have heard the submissions of the learned Counsel appearing for the Accused who has been appointed to espouse the cause of the Accused. I have also heard the submissions of the learned A.P.P and the submission of the learned Counsel appearing for the 2nd Respondent Ms.Kalpana in Criminal Appeal No.37 of 1990. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the prosecution case. 4. By the impugned Judgment and order two cases, viz. Sessions Case No.365 of 1983 and Sessions Case No.366 of 1983 have been decided. According to the case : 5 : of the prosecution, all the Accused are residing in and around the area of Fishermen Colony at Mahim. One of the victims, Kalpana Dhamankar was residing in Building No.9 in the said Colony along with her mother and sisters. The second victim Smita was also living in the same colony. Kalpana and Smita were close friends. According to the case of the prosecution, both of them knew the Accused as they used to frequently visit the house of one Gotya who was residing in Building No.9 in the said colony. According to the prosecution, the incident had taken place late in the night on 24th October 1982 or in the early morning of 25th October 1982. Eight days prior to the incident, the said Kalpana and Smita had gone to witness Ram Leela programme at Shivaji Park, Dadar, Mumbai. At that time, the Accused No.1 Ramesh and Accused No.4 Raju were present in the crowd. From Shivaji Park, the Accused No.1 Ramesh took Smita with him and Kalpana started going back towards her home. Accused No.4 Raju followed her and intercepted her near Vivekanand Garden. It is alleged that Accused No.4 proposed Kalpana and requested her to marry with him. However, Kalpana informed him that she was treating him as his brother and therefore, she did not accept the proposal. Thereafter Kalpana proceeded towards her home. : 6 : 5. On 24th October 1982, Kalpana and Smita together went to see a programme of Garba dance in the Police Quarters in the Fishermen Colony. They witnessed the programme till about 11.15 p.m. when they noticed Accused No.4 Raju in the crowd. Therefore, they decided to return to their respective houses and they started running towards their building. When they were near Building No.17 and 23 which are adjacent buildings, they saw the accused No.1 Ramesh and the accused No.4 Raju. As both of them were frightened, they tried to hide themselves below the staircase of building No.17. According to the case of the prosecution, the Accused No.1-Ramesh and the Accused No.4-Raju followed them. The Accused No.1-Ramesh caught hold of Smita and took her towards Building No.23. Accused No.4-Raju took Kalpana to the terrace of Building No.17 where he again proposed her. But the said Kalpana turn down the proposal. Therefore, Accused No.4-Raju gave a threat to Kalpana. While all this was going on, the other Accused entered the terrace of Building No.17. According to the prosecution case, they removed the clothes on the person of Kalpana and pushed her down on the floor of the terrace. Thereafter, the accused forcibly raped Kalpana one after the other in succession. Kalpana was : 7 : thereafter thrown down by them from the terrace of the Building No.17. Kalpana fell down on the ground and sustained serious injuries. 6. According to the prosecution case, the Accused No.1-Ramesh and Accused No.6-Ranjan committed rape on Smita on the rear side of the building No.23 in an empty space between Building No.25 and a wooden stall. 7. P.W.3 Shri Ali Abdul Ali Barodawala, a resident of the building No.23 in the said colony heard a noise when Kalpana fell down on the ground and therefore, he rushed to the spot in front of Building No.17. He found that Kalpana was lying on the ground in an injured condition and she was unable to talk. He, therefore, shouted for help and rushed to the Police Station at Mahim. P.I. Patil and S.I.Shaikh along with other staff members came to the spot and they immediately shifted Kalpana to KEM Hospital. While Kalpana was being admitted in KEM Hospital, her mother Savitribai and sister Asha were brought to the Hospital. Thereafter P.I. Patil and P.S.I. Shaikh, Kalpana’s mother Savitribai and Kalpana’s sister Asha came back to the spot of incident i.e. Building no.17 in Fishermen Colony. In the meanwhile, the Accused No.1-Ramesh and : 8 : Accused No.2-Suresh were already arrested by the Police who were on the spot of the incident. A panchanama of the spot and a panchanama of the terrace of the Building No.17 was drawn. Another panchanama of the spot where prosecutrix Smita was subjected to offence was drawn and the clothes and certain articles were seized in presence of panchas. The prosecutrix Smita was taken to the Police Station where her statement was recorded and an offence under sections 366 and 376 of the Penal Code was registered vide C.R.No.796 of 1982. PSI Shaikh was making enquiry on the spot. The statement of PSI Shaikh was recorded by PI Patil and on that basis offence under sections 366, 376, 307 and 201 of the IPC was registered against all the Accused vide C.R.No.797 of 1982. 8. Statement of the prosecutrix Kalpana was recorded on 27th October 1982. Though PI Patil was making efforts to record statement of Kalpana in KEM Hospital where she was being treated, only on 27th October 1982 that he succeeded in recording the statement of Kalpana after the Doctor certified her fitness and ability to make such a statement. In her statement, Kalpana narrated the entire incident regarding the rape and attempt to commit murder. The statement of various witnesses were recorded. The : 9 : learned trial Judge after considering the evidence has convicted the Appellants in Criminal Appeal No.37 of 1990 for the offence against Ms.Kalpana and acquitted the accused for the offence against Ms.Smita. 9. Shri S.D.Patil, the learned Counsel has taken me through the notes of evidence and other material on record. He pointed out that there were two separate First information reports registered. C.R.No.796 of 1982 was in the case of an offence where the victim was Smita and the second one i.e. C.R.No.797 of 1982 was in respect of the offence where Kalpana was the victim. He pointed out that the FIR No.797 of 1982 was registered on the basis of the statement of PSI Shaikh. He pointed out that neither Shri Shaikh was examined as a witness nor a copy of the C.R.No.797 of 1982 was produced and proved which was the basis of the case of the prosecution. He submitted that PSI Shaikh who was the first informant in the FIR was not examined. He submitted that no material was produced on record to show that copies of both the first information reports were forwarded to the concerned Judicial Magistrate. He submitted that a strong adverse inference will have to be drawn on account of the failure of the prosecution not only to produce and prove the FIR No.797 of 1982 but : 10 : also for not examining PSI Shaikh who was a very important witness and who could have thrown light on the factual position. He submitted that these defects in prosecution case go to the root of the matter. He submitted that there could not have been investigation of the offence against Kalpana unless a F.I.R. was registered. He submitted that no evidence has been led to show that such F.I.R. was registered. He submitted that if F.I.R. would have been really in existence, the prosecution could have produced the acknowledgement showing that the same was received by the concerned Magistrate. 10. He submitted that the registration of FIR was sine qua non for investigation of an offence and a serious doubt has been created regarding the existence of the FIR. He submitted that as the FIR itself was not produced and proved, there was no foundation for the prosecution case. He submitted that this was a case for drawing strong adverse inference for non-examination of P.S.I.Shaikh. He submitted that this was a case where the prosecution has made an attempt to withhold the evidence of an important witnesses from the Court. 11. He pointed out several discrepancies and : 11 : contradictions in the evidence of the prosecutrix Kalpana. He submitted that apart from the serious infirmities regarding non-production of FIR and non-examination of S.I. Shaikh, the said Smita turned hostile and did not supported the prosecutrix Kalpana. 12. He pointed out that there were major contradictions in the prosecution case regarding the existence of sufficient light on the terrace. He pointed out that on the one hand the prosecution was contending that there was adequate light on the terrace but on the other hand the evidence of the prosecution witnesses suggests that for the purpose of recording panchanama torches were required to be used. He submitted that considering the past conduct of Kalpana, the entire incident was highly improbable. He submitted that considering the serious infirmities in the prosecution case, a serious doubt is created about the genuineness of the prosecution case. He submitted that on this ground alone it was unsafe to base the conviction on the sole testimony of the prosecutrix. He submitted that as the investigation was defective, the accused persons were entitled for an order of acquittal. He submitted that offence under section 307 was not established as no clear role has been ascribed in the : 12 : said office to each accused. He placed reliance on the several decisions. I will refer to the said decisions in the later part of this judgment. 13. The learned Counsel for the Respondent No.2 has placed reliance on various decisions of the Apex Court and submitted that in a case of an offence of this nature the investigating officer should have shown utmost care and sensitively. She submitted that in view of the recent decisions of the Apex Court, even a corroboration is not required to the testimony of the prosecutrix. She submitted that the accused persons cannot rely upon some minor contradictions or lacuna of trifle nature unless substratum of the prosecution case is affected. She submitted that the law laid down by the Apex Court is that the conviction for an offence under section 376 can be based on the uncorroborated testimony of the prosecutrix. She submitted that in case of a trial for an offence under section 376 of the Penal Code, all unnecessary technicalities are required to be kept aside. She submitted that considering the heinous nature of the crime, in fact a case for enhancement of substantive sentence as well as fine is made out. : 13 : 14. The learned A.P.P relied upon certain decisions. The learned A.P.P in support of the Appeal against acquittal pointed out relevant documents and depositions on record. He submitted that though prosecutrix Smita did not fully support the prosecution, the F.I.R. was duly proved and there was enough evidence to connect the accused with the offence against the said Ms.Smita. He submitted that considering the nature of the crime, a case is made out for enhancement of sentence and fine. 15. I have carefully considered the submissions. I have also perused the notes of evidence and the record of the case. The prosecution has examined 13 witnesses for establishing the guilt of the accused persons. There is documentary evidence on record in the form of panchanama, reports of the Chemical Analyser etc. 16. Since I am considering all the appeals together, it will be necessary to refer to the evidence of P.W.1 Ms.Smita alias Prachi Prakash Waradkar. She deposed that in the year 1982 she was residing at Mahim in a slum located behind the bus depot. She stated that she used to reside at the said place with her parents and her sister. She stated that her father, at the relevant time, was a photographer and used to start at 8.00 a.m. : 14 : for his duty and used to come back by 8.00 p.m. According to her even her mother used to undertake the work of stitching of clothes and earn livelihood. Her mother used to leave house around 9.00 in the morning and used to come back by 6.00 p.m. She stated that she has taken education upto 4th standard. After leaving her education incomplete, she was working as a maid servant doing domestic work. She stated that she was acquainted with Kalpana (P.W.4). She stated that she did not know the accused Nos.1 to 6. She stated that she had not seen any of the accused persons any time before. She stated that she did not remember whether Mahim Police had met her in the morning of 25th October 1982. She stated that she did not lodge any complaint to Mahim Police Station. She was confronted with her statement reduced into writing on 25th October 1982 before the Sub-Inspector of Mahim Police Station. She admitted her signature on the document and therefore, only the signature on the statement was exhibited and no other part of the statement was exhibited. At the instance of the prosecution, she was declared as a hostile witness and a permission was granted to the learned P.P to cross-examine the said witness. In the cross-examination, she stated that she did not know any of the accused persons. She stated that she did not : 15 : remember when she had gone to witness Garba dance in Navratri Festival. She stated that she was since married. She stated that she was unable to recollect if she had any love affair with accused No.1-Ramesh. 17. About the incident of 24th October 1982, she stated that at 5.00 p.m. she herself and Kalpana proceeded to building No.13 to see certain T.V.programme. She admitted that she along with Kalpana (P.W.4) assembled together at 9.15 p.m. and went to see Garba dance programme at Shirke colony. She stated that she saw accused Ramesh proceeding towards building No.17. She admitted that she was taken behind building No.23 by someone forcibly but she did not recollect his name. She further stated that in the passage between the southern wall of building No.23, she was forcibly pushed down by Ramesh and was trying to use force, but she ran away from the spot. In paragraph 11, she stated as under: "It is true that I was raped by some one during that night and on the said spot, but I cannot say who he was. Now says that I was not raped but I immediately run away as soon as I fell down. It is not true that Ranjan : 16 : had forcible intercourse with me thereafter I do not remember once Suresh deo also came there and after seeing him I run away from the spot." She was shown certain clothes taken out from a bundle produced by the prosecution. She admitted that clothes might be her clothes. She was also cross-examined by the Advocate appearing for the Accused. As narrated earlier, only the signature of the said witness below her statement was exhibited and no part in the said statement was exhibited. 18. This takes me to the evidence of the important witness, namely Ms.Kalpana P.W.4. The entire case revolves around the deposition of Kalpana. Kalpana has been also cross examined at length. P.W.4 Kalpana identified the accused persons before the Court. She stated that the accused were sitting in the Court in the sequence of the names mentioned in the charge sheet. She stated the first names of all the accused before the Court. She stated that along with the accused persons, one Shyam was also their companion. She has stated that she knew the accused persons as all of them frequently visited the house of one Gotya who was staying in : 17 : Building No.9 in which she was staying. She narrated that 8 days prior to the incident, she along with her friend Smita had gone out to see a movie on television. Thereafter they proceeded to see Ramlila programme at Shivaji Park. She stated that while they were witnessing Ramlila programme, she found the Accused No.1-Ramesh and the Accused No.4-Raju standing behind them. She stated that thereafter accused no.1-Ramesh took Smita with him. She stated that since Smita had gone with Ramesh, she lost interest in Ramlila and therefore, she decided to return back to her home. According to her, the Accused No.4 Raju followed her upto Mahim and thereafter he stopped her. At that time Accused No.4 proposed that she should marry with him. However, she informed him that she was not willing to talk on the subject. 19. She stated that on the date of the incident at about 9.00 p.m., she alongwith Smita left their respective homes to see Garba programme in Police Quarters. According to Kalpana, both of them saw the programme upto 10.00 p.m. At that time Smita pointed out that the Accused No.1-Ramesh and Accused No.4-Raju were present. She told Smita that if the said two persons were present, it was not desirable to remain at : 18 : that place. Both of them accordingly started towards their home. When she looked back, while on the way back to her residence, she found the Accused No.1-Ramesh and Accused No.4-Raju were following her and Smita and therefore, both of them were very frightened. She described how both of them managed to hide below the staircase of the building No.17. According to her, the Accused no.1-Ramesh caught hold of the hand of Smita and took her away. She also described the manner in which Accused No.4-Raju took her to the terrace of Building No.17. The relevant part of what P.W.4 Kalpana has stated in her evidence reads thus: "3. Accused Raju took me thereafter to the terrace of building No.17. He asked me to sit by his side, and therefore I had to set by his side. Raju then told me that I should marry him but I refused his proposal and told him that I was regarding him as my brother and I had no intention to marry. Thereafter I started leaving the place but he held my hand and said that I should have sexual relationship with him. I resisted and I got up to leave for my home. Accused Raju forced me to sit and threatened that if I : 19 : cried, he would call his friends. As I was frightened I again attempted to leave the place, but in the meantime Ramesh came there alongwith the remaining accused. Out of fright I was going to raise a cry for help but accused Suresh took out his shirt and thrust into my mouth to silence me. Before this was done by Suresh, Ramesh had asked me in a threatening voice how and where I was going to flee. His words were "Kaha Jaogi Bulbul". After thrusting the shirt in my mouth Suresh had also pressed my mouth and nose also and I was feeling suffocated. Thereafter Raju and Bala held my hands and legs. Ramesh ordered them to push me down and I was forcibly made to by the accused though I was resisting. Ramesh then said that Raju was incapable to have sexual intercourse with me and therefore, he (Ramesh) would have the same with me first. Ramesh then removed all his clothes. At that time I was putting a skirt and a top. My skirt, the top and thereafter the under garments were removed. Then Ramesh had forcible sexual intercourse with me and : 20 : thereafter