Whether statements of witnesses recorded U/ S 161 and S 164 of CRPC are substantive evidence?

 It may be mentioned here that P.W. 6 and P.W. 7 have narrated the incident as disclosed by the victim girls and as recorded in their statements under section 161 of Cr.P.C. The learned trial Judge has also taken on record and exhibited these statements at Exhs. 75 and 78 colly. Needless to state that the statement recorded under section 161 of Cr.P.C. is not a substantive evidence. The statement under section 161 of Cr.P.C. cannot be used for the purpose of corroboration of any other witness. Under the proviso to section 162 of Cr.P.C., the statement made by the witness under section 161 of the Cr.P.C. can be used by the accused, and with the permission of the Court by the prosecution, to contradict such witness in the manner indicated in section 145 of the Indian Evidence Act. Similarly, a statement under section 164 of the Cr.P.C. is not substantive evidence. It can be used to corroborate the statement of a witness or to contradict a witness. The records of the present case indicate that the learned trial Judge has used the statements of the victims recorded under section 161 as well as 164 of Cr.P.C. as substantive evidence. The learned Judge has therefore committed a manifest illegality in taking on record and relying upon the wholly inadmissible evidence. The manner in which the learned trial Judge has conducted the trial is not satisfactory. However, these irregularities are not fatal as the same have not caused any prejudice to the accused.

IN THE HIGH COURT OF BOMBAY

Confirmation Case No. 03 of 2013, Criminal Appeal Nos. 426, 416, 452, 508, 528, 600 of 2013, 896 of 2014 and Criminal Application No. 191 of 2014 in Appeal 452 of 2013

Decided On: 11.03.2016

 State of Maharashtra and Ors.

Vs.

 Ramchandra Sambhaji Karanjule and Ors.

Hon'ble Judges/Coram:

R.V. More and Anuja Prabhudesai, JJ.

Citation: 2017 ALLMR(CRI) 1347

1. These appeals challenge the impugned the judgment and order dated 21.3.2013 passed by the learned Addl. Sessions Judge, Greater Bombay in Sessions Case No. 688 of 2011, whereby the learned Addl. Sessions Judge acquitted the respondents in Appeal No. 896 of 2015 and convicted and sentenced the appellants in Criminal Appeal Nos. 416 of 2013, 426 of 2013, 452 of 2013, 508 of 2013, 528 of 2013 and 600 of 2013 as under:--

Ac. No.	Name of accused	Charged for offence under sections	Convicted for offence and sentence	Acquitted for offence
		Section 302	302 r/w. section 23 of JJ Act. Death
		Section 307	7 years R.I. & fine Rs. 2000 i/d. 3 months SI
		Section 376(2)(c)	Life imprisonment & fine of Rs. 5000 i/d. 1 yr. SI
		Section 376(2)(g)	Life imprisonment fine of Rs. 5000 i/d. 1 yr. SI
		Section	10 years RI fine of 3000 i/d. 6 months SI	Section 376(2)(c) r/w. sections 109 r/w. 34, 467, 468, 471 r/w. section 34 of the IPC
1.	Ramch- andra Samb- haji Karan- jule	Section 324 Section 506(2)	3 years RI and fine of Rs. 1000 i/d. 1 month SI 3 years. R1&fine of Rs. 1000 i/d. 1 month SI
		Section 23 of J.J. Act Section 25 of J.J. Act 34 of the IPC	6 months RI 3 years RI & fine of Rs. 2000 i/d. 2 months SI
2.	Nanab- hau Laxman Karan- jule	Section 354 of the IPC	2 yrs RI & fine of Rs. 5000 i/d. 1 month SI	Section 376(2)(c) r/w. sections 34, 376(2)(c), 377, 324, 467, 468, 471 r/w. section 34 of IPC & section 23 of J.J. Act & section 25 of J.J. Act r/w. section 34 of the IPC
		Section 376(2)(g) of IPC	Life imprisonment & fine of Rs. 5000 i/d. 1 year SI
	Khandu Nanaji Kasbe			Section 376, 377,
3.	@ Deepak Mayekar	Section 25 of J.J. Act r/w. section 34 of IPC	3 yrs. RI & fine of Rs. 2000 i/d. 2 months SI	324 of IPC & section 23 of J.J. Act
4.	Prakash Vitthal Khadke	Section 376(1) of IPC	Life imprisonment & fine of Rs. 5000 & i/d. 1 year SI	Section 376(2)(c), 377, 324 of the IPC & section 23 of J.J. Act
5.	Smt. Ka- lyani Ramch- andra Karanj- rule (a, Kalyani Shailesh Sarode	Section 376(2)(c) (g) r/w. section 109, 377, 467, 468, 471 r/w. 34 IPC & section 23 of J.J. Act		Section 376(2)(c) r/w. 109 r/w. section 376(2) (g) r/w. section 109, 377 r/w. section 109, 467, 468, 471 r.w. section 34 of
				IPC & section 23 of J.J. Act
6	Ms Son- ali Mohan Badade	Section 307 r/w. 34 of IPC Section 324 of IPC Section 376(2)(c) r/w. section 109 of IPC Section 376(2)(g) r/w. 109 of IPC Section 377 r/w. section 109 of IPC Section 23 of J.J. Act	7 yrs. RI & fine of 2000 i/d. 3 months 1 year RI & fine of Rs. 500 i/d. 1 months SI 10 yrs. RI & fine of Rs. 2000 i/d. 3 months SI 10 yrs. RI 6s fine of Rs. 2000 i/d. 3 months SI 1 yr. RI & fine of Rs. 300 i/d. 1 months SI 3 months RI
7.	Dhiru- bhai Arjun Limb- ani @ Chane- walaba	Under sections 324 and 354 of the IPC		Sections 324 & 354 of IPC
8.	Narendra Ramniklal Mehta@	Under sections 324 and 354 of the IPC		Sections 324 & 354 of IPC
9.	Ms. Su- rekha Ramch- andra Karan- jule	376(2)(c) (g) r/w. section 109, 377, 467, 468, 471 r/w. 34 IPC and section 23 of J.J. Act Section 304 Part II of IPC	5 yrs. RI	Section 376(2)(c) r/w. section 109 377 r/w. section 109 of IPC & section 23 of J.J. Act
	Smt. Pa- rvati	Section 324 of IPC Section 376(2)(c) r/w. 109 IPC 376(2)	1 yr RI with fine Rs. 500 i/d. One month SI 10 yrs RI with fine Rs. 2000 i/d. SI 3 months 1yr RI with fine Rs. 300 i/d. SI one months 3 months RI	Section 302 of IPC r/w. section 25 of J.J. Act
10.	Shamsu-	(g) r/w. 109 IPC Section 377 r/w. 109 IPC Section 23 of J.J. Act

Being aggrieved by the conviction the appellants-accused have filed Criminal Appeals No. 416 of 2013, 426 of 2013, 452 of 2013, PPS 7 of 121 508 of 2013, 528 of 2013, 600 of 2013 while Confirmation Case No. 3 of 2013 arises from the statutory reference under section 366 of Cr.P.C. for confirmation of the death sentence. The state has also challenged the acquittal of the accused Nos. 2-Nanabhau Karanjule, accused No. 5 Smt. Kalyani Karanjule, accused No. 7 Dhirubhai Limbani @ Chanewala, accused No. 8 Narendra Mehta@ Babadas and accused No. 9 Ms. Surekha Karanjule in Criminal Appeal No. 896 of 2014.

2. The facts and circumstances giving rise to these appeals are as under:

"In the month of October 2010, Mumbai Mirror, a local daily carried a news report exposing pitiable condition of the children in children homes in the State. Taking cognizance of the said news report, this Court vide Suo Moto Public Interest Litigation No. 182 of 2010 appointed the Maharashtra State Co-ordination Committee for Child Protection, headed by Professor Asha Bajpai, to assist and review the quality of care management in children home across the State of Maharashtra. Seven regional committees were also set up to inspect the homes for mentally challenged children, and these committees were required to submit their report to the Chairperson of the State Committee."

3. P.W. 3- Naina Athale, Asst. Professor at Tata Institute, P.W. 5-Deepali Bhattacharya, Associate General Manager of CRY, P.W. 11-Dr. Harish Shetty, Psychiatrist, and some other members of the said committee inspected Kalyani Mahila Balkalyan Seva Sanstha, (hereinafter referred to as Kalyani Sanstha), a home for the mentally challenged girls, situated at Khanda Colony, New Panvel, District Raigad. The said Kalyani Sanstha was registered under the Public Trust Act, as well as with the Women and Child Department. The accused No. 5 Kalyani Karanjule @ Kalyani Sarode was the President whereas the appellant-accused No. 1 Ramchandra Karanjale and his wife Surekha were the directors of the said Sanstha wherein Nineteen mentally challenged girls were housed.

4. The Committee verified the records of the Sanstha and interacted with the children. They observed gross mismanagement in the affairs of the Sanstha and suspected physical and sexual harassment of the girls and accordingly submitted a report to the Chairperson of the said committee. The Committee also directed the Child Welfare Committee (CWC), Raigad and the Child Welfare Officer, Alibag, to visit and verify the condition of the said sanstha.

5. On 28th February, 2011, P.W. 1, Neela Tulpule, the President of Child Welfare Committee, Raigad, and P.W. 10 -Dattatray Vasudeo Kuvlekar, Probation Officer at Zilla Raigad in the office of District Women and Child Development, Alibag, and other officers from the Child Welfare Office, Alibag and District Women and Child Development Office, Alibag-Raigad, visited the said Sanstha. These members too noticed mismanagement of the Kalyani Sanstha and suspected sexual abuse of the children.

6. On 2nd March, 2011, they referred the girls to the Rural Hospital, Panvel for medical examination. P.W. 4 Dr. Swati Naik examined the girls and reported that some girls were habituated to sexual intercourse. The medical report confirmed her suspicion hence, P.W. 1. Neela Tulpule, shifted the girls to Mahila Sanstha, at Karjat.

7. On 4th March, 2011, P.W. 1-Ms. Tulpule, lodged the FIR Ex. 41 at Kalamboli Police Station, pursuant to which P.W. 14 -PSI Sanjay Shukla registered C.R. No. 125 of 2011 against the accused for offences under sections 376, 109 and 114 of Indian Penal Code.

8. The Investigating Officer, P.W. 14-PSI Sanjay Shukla, visited Kalyani sanstha, and conducted the panchanamas dated 4th March, 2011 and 6th March, 2011 at Exhibits 82 and 52 respectively and seized some files/registers, laptop etc. from the said sanstha. He arrested the accused and sent them for medical examination. Further investigation was entrusted to P.W. 21 Dr. Rashmi Karandikar.

9. P.W. 6 Dr. Archana Singh, Psychiatrist attached to Govt. Hospital Alibag and P.W. 7-Sunanda Tarte, a teacher at the Indian Council for the Mental Health interacted with the victim girls and assisted the Investigating Officer in recording the statements of the victim girls under sections 161 and 164 Cr. PC. P.W. 12 Dr. Rajesh Sukhdev and P.W. 13 Dr. Padmaja Samant, Medical Officers of JJ hospital medically examined the victim girls and submitted the reports at Exhs. 100 to 117 colly. The medical reports revealed that the girls were subjected to severe physical and sexual abuse. Upon completion of the investigation, P.W. 21 Dr. Rashmi Karandikar, IO, submitted the charge-sheet before the Competent Court which in turn committed the case to Sessions Court, Gr. Bombay at Mumbai. These in short are the sordid facts of the case.

10. Charge was framed against the appellants-accused initially for the offences under sections 307, 376(c), 377, 354, 324, 323, 467, 468, 471, 109, 114 r/w. 34 of the Indian Penal Code and sections 23, 25 and 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The accused pleaded not guilty and claimed to be tried. The prosecution to substantiate the charges examined 22 witnesses.

11. On 29th October, 2012, based on the testimony of P.W. 17 and 18, the learned Judge framed additional charge under section 302 of the Indian Penal Code, for committing murder of Seeta, one of the inmates of the Sanstha. The accused pleaded not guilty to the said additional charge. After recording of the further evidence, the accused were examined under section 313 of Cr.P.C. The defence of the accused is of total denial and false implication.

12. The accused No. 1 filed his written statement under section 233(2) of Cr.P.C. (Exh. 223) wherein he claimed that the row house at Khanda Colony was given on rent to Anand Mahila Sanstha which was running a children home since 2006. The accused No. 1 claimed that Kalyani Sanstha was not housed at Khanda Colony and that the mentally challenged children were not transferred to Kalyani Sanstha during the relevant period. He claimed that the entire case against him was fabricated.

13. The accused No. 9 Surekha examined herself as D.W. 3. The accused examined D.W. 2 Dr. Ravindra Chavan, D.W. 5 Dr. Vijay Juvekar and D.W. 6 Dr. Vinayak Sawarkar, the Medical Officer/Associate/Assistant Professors at J.J. Hospital who had treated Seeta. The accused also examined D.W. 1 Ramesh Gupta one of the trustees of Ramanand Charitable trust and in addition the accused examined D.W. 4 Mandakini Misal, the owner of the premises and D.W. 7 Dnyandev Gawhane the District Probation Officer, Alibag-Raigad.

14. Upon considering the evidence on record and hearing the learned Special APP for the State and the learned Counsels for the accused, the learned Sessions Judge held the accused Nos. 1, 2, 3, 4, 6, and 10 guilty and convicted and sentenced them as stated above. The accused as well as the State have preferred appeals against conviction/acquittal whereas the confirmation case arises out of the statutory reference.

15. Arguing in support of confirmation, Ms. Salian, the learned Special PP has submitted that the evidence on record amply proves that the accused No. 1 was running an orphanage for mentally challenged girls. She has further submitted that the testimony of P.W. 17 and P.W. 18 amply proves that one of the inmates by name Seeta had expired while she was in the custody of the accused No. 1. She has submitted that the evidence of P.W. 17 and P.W. 18 amply proves that the accused had assaulted Sita while she was in his custody. The learned Special PP further submitted that the appellant had failed to provide her proper nourishment and treatment and beat her despite knowing that she was suffering from tuberculosis. The learned SPP APP submits that the term 'act' also includes omission. She submits that the accused No. 1 caused the death of Sita, one of the inmates of Sanstha, by several acts of omission and commission, enumerated by the learned judge in the judgment. The learned Spl. PP contends that the evidence adduced by the prosecution leaves no doubt about the complicity of the accused in committing the said crime.

16. Shri Vaswani, the learned Counsel for the accused No. 1 as well as Shri Aher, the learned Counsel for the accused No. 10 have submitted that there is absolutely no evidence to prove that the death of Seeta was homicidal. They have submitted that the learned Judge has held the accused guilty of offence under sections 302 and 304 without there being any substantive evidence and that the findings and the reasons are totally perverse and illegal.

17. The question which arises for our consideration is whether the prosecution has established beyond reasonable doubt that the accused Nos. 1 and 10 had committed murder/culpable homicide not amounting to murder of Seeta, an inmate of the Sanstha.

18. The evidence on record indicates that in view of the direction given by this Court in PIL No. 182 of 2010, P.W. 3 Naina Athale, P.W. 5 Deepali Bhattacharya and the other members of the Committee had inspected Kalyani Sanstha, on 15th February, 2011 and 22nd February, 2011. The Committee Members noticed several irregularities in the affairs of the Sanstha and suspected that the girls were physically and sexually abused. They submitted the report (Exh. 58) to the Chair Person, Ms. Asha Bajpai and further directed the member of the Children Welfare committee Raigad to visit the said Sanstha and to verify the facts.

19. Pursuant to the directions given by the Committee, P.W. 1 Neela Tulpule, the President of Children Welfare Committee, Raigad, and P.W. 10 Dattatray Kurlekar, the Probation Officer, and the other members of District Women and Child Development, Alibag, visited the said Sanstha on 28.2.2011. They interacted with the children and suspected that the children were sexually abused. The suspicion was confirmed by the medical report given by P.W. 4 Dr. Swati Naik, the medical officer, Rural Hospital, Panvel. P.W. 1 Neela Tulpule, therefore lodged the FIR at Exh. -41, pursuant to which, Crime No. 125 of 2011 was registered against the accused for offences under sections 376, 109, 114 and after recording the statements of the witnesses and completing all the formalities, the investigating agency laid the charge-sheet for the offences under sections 307, 376(c), 377, 354, 324, 323, 467, 468, 471, 109, 114 r/w. 34 of the Indian Penal Code and sections 23, 25, 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Upon committal of the case, the learned Sessions Judge framed the charge against the accused for the offences under sections 307, 376(c), 377, 354, 324, 323, 467, 468, 471, 109, 114 r/w. 34 of the Indian Penal Code and sections 23, 25 and 28 of the Juvenile Justice Act, 2000.

20. It is thus evident that the Report at Exh. 42, the FIR at Exh. 41 as well as the Report filed under section 173 Cr.P.C. did not indicate that the accused were responsible for causing death of Seeta and consequently the accused were not charged for committing offence under section 302 of the IPC. The learned Sessions Judge had suo moto added the said charge on the basis of the testimony of P.W. 18 and P.W. 19, which according to the learned Judge revealed that death of Seeta was homicidal and was caused by the accused.

21. It is pertinent to note that 19 witnesses were already examined before framing of the charge under section 302 of the Indian Penal Code. The learned Judge had not recalled the said witnesses including P.W. 18 and P.W. 19 based on whose testimony the said additional charge was framed. Consequently, the accused were not given an opportunity to cross-examine these witnesses on the additional charge. The learned judge, in violation of the basic cardinal principle, has relied upon and has held the accused Nos. 1 and 10 guilty of offence under sections 302 and 304 IPC on the basis of the untested testimony of these witnesses.

22. Be that as it may, P.W. 18, had deposed that "Earlier Seeta was in good health. Ramchandra and Aaji used to beat her. She became weak and one day she died. She was taken somewhere and they dumped her body somewhere." In her cross-examination she has stated that "Ramchandra and Mavle Aaji beat Seeta (gesture of beating). She died (gesture of sleeping) then her body was wrapped in cloth and taken somewhere. Mavle Aaji used to beat the girls." P.W. 19, in answer to question No. 28 had deposed that "Papa (A1) killed Seeta, Seeta was taken to the hospital. I saw that with my eyes".

23. Apart from the aforesaid evidence of these two witnesses there is absolutely no other evidence to prove that the accused Nos. 1 or 10 had inflicted any such injury on Seeta as to cause or likely to cause her death. On the contrary, the evidence of D.W. 2 Dr. Ravindra Chavan the medical officer attached to J.J. Hospital, Mumbai, indicates that Seeta was admitted in J.J. Hospital on 24th April, 2006 with history of pain in abdomen for 15 days and stiffness of knee joints for three months, bilateral pedal oedema for 2 days and vomiting for 2-3 days. He has deposed that the diagnosis revealed that said Seeta was deaf, dumb and severely mentally retarded with severe anemia with disseminated kochs and sepsis. Said Seeta expired on 29th April, 2006. He has produced the postmortem report at Exh. 254. He has deposed that the post-mortem findings indicate that the cause of death was tuberculosis Broncho pneumonia with tuberculosis lymphadenitis with fatty liver.

24. D.W. 5 Dr. Vijay Hari Juvekar, the Associate professor in Pathology, attached to J.J. Hospital has also deposed that Seeta was admitted in J.J. Hospital on 24th April, 2006 with history of pain in abdomen for 15 days. He has deposed that she was having severe anemia with disseminated kochs and sepsis. He has deposed that Seeta expired on 29th April, 2006. Resident pathologist conducted autopsy on the same day in his presence. He has further deposed that as per the post-mortem findings, Seeta was malnourished and the cause of her death was tuberculosis broncho pneumonia with tuberculosis lymphadenitis with fatty liver. He has confirmed the contents of the summary of the post-mortem findings at exhibit 254. In his cross-examination, he has admitted that if a person suffering with such ailment as Seeta is beaten, she can die. He has further stated that tuberculosis broncho pneumonia are curable.

25. D.W. 6 Dr. Vinayak Maruti Sawardekar, the Assistant Professor at J.J. Hospital has deposed that as per the records, Seeta was admitted in the hospital on 24th April, 2006 at about 2.30 p.m. He has deposed that she was brought to the hospital from orphanage, Anand Manila and Bal Kalyan Sanstha, Panvel. Said Seetahad complained of abdominal pain, swelling of legs, vomiting and joint pain. He has deposed that as per the record she had severe anemia, her hemoglobin was 3.3. He has deposed that she had respiratory pathology on admission, which was abnormal and probably due to T.B. He has deposed that Seeta expired on 29th April, 2006 at about 7.15 p.m. The probable cause of death was severe anemia with disseminated coax with perisepsis. He has stated that as per the record, Parvati Mavle (A 10) who had claimed to be the guardian had accompanied the patient Seeta.

26. The aforesaid medical evidence proves that Seeta was admitted in JJ Hospital on 24th April, 2006 while she was housed at AnaAnand sanstha. She was having abdominal and knee joint pain and was vomiting. She was severely anemic. She was treated in the hospital and that she expired on 29th April, 2006. The medical evidence indicates that the death of Seeta was due to tuberculosis and was not homicidal in nature.

27. The learned Judge held that the ante mortem findings indicate that Seeta had joint pain, stiffness of knees and rash all over the body. The learned Judge has held that the said findings, in common parlance correspond with the history of beating'. The learned Judge has further held the fact that Seeta was malnourished and anemic with 3.3 hemoglobin also fortifies the contention of P.W. 18 that Seeta had become weak due to beating. The learned Judge has further held that the D.W. 5 has admitted beating a person with such ailment can be fatal. Relying upon the decision of the Apex Court in (Shakti Dan v. State of Rajasthan), MANU/SC/7337/2007 : 2007(3) Supreme 901, the learned Judge had held that the case is covered by under Clause 2 of section 300 of the Indian Penal Code.

28. The learned Sessions Judge on considering the provisions of sections 32, 36, 39 and 43 of the IPC, has held that the murder need not necessarily be committed by stabbing or shooting with an intention to cause death. The learned Judge has held that the murder can also be committed by illegal omission such as omission to take proper care and give timely treatment. The learned Judge has held that the accused No. 1 was the Vice President of the Anand Sanstha and President of Kalyani Sanstha. He was residing in the same premises wherein the girls were housed. The learned Sessions Judge had held that the accused No. 1 was therefore aware of the medical condition of Seeta and that it was his legal duty to take proper care and to give timely treatment to Seeta. The learned Sessions Judge held that life of Seeta could have been saved had she been given timely treatment. The learned Sessions Judge has held that the accused No. 1 not only failed to provide proper nourishment and treatment to Seeta but beat her up despite knowing her precarious medical condition.

29. The learned Sessions Judge has further held that the accused No. 1 was running the said orphanage in an inadequate space with the help of one illiterate care taker, unqualified Superintendent and with minimum unqualified and untrained staff, The learned judge held that the inmates were bound to the in such condition. The learned Sessions Judge therefore held that the accused No. 1 had committed an act with an intention of causing such bodily injury as he was knowing it was likely to cause death of Seeta. The learned Sessions Judge has further held that the accused No. 1 had knowledge that the illegal omissions, such as not giving proper nourishment and timely treatment to Seeta would make her severely anemic and would ultimately cause her death. The learned Judge therefore held that the aforestated acts and omissions have resulted in death of Seeta and that this is nothing short of murder. The learned Judge therefore, held the accused No. 1 guilty of section 302 of the IPC and accused No. 10 of section 304 part II of the IPC.

30. The reasons ascribed by the learned judge raise an essential question whether the acts and omissions allegedly committed by the accused constitute 'culpable homicide' to begin with. The terms 'culpable homicide' and 'murder' are defined under sections 299 and 300 of IPC and explained by the Apex Court in (Anda and others v. The State of Rajasthan), MANU/SC/0386/1965 : A.I.R. 1966 S.C. 148 as under:--

"4. The offence of culpable homicide is defined by section 299. It reads:

"299. Culpable Homicide.

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits offence of culpable homicide."

The offence involves the doing of an act (which term includes illegal omissions) (a) with the intention of causing death or (b) with the intention of causing such bodily injury as is likely to cause death or (c) with the knowledge that the act is likely to cause death. If death is caused in any of these three circumstances, the offence of culpable homicide is said to be committed. The existence of the three circumstances (a), (b) and (c) distinguishes homicide which is culpable from homicides which are lesser offences or which are excusable altogether. Intent and knowledge in the ingredients of the section postulate the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person.

5. Section 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Section 300 begins by setting out the circumstances when culpable homicide turns into murder which is punishable under section 302 and the exceptions in the same section tell us when the offence is not murder but culpable homicide riot amounting to murder punishable under section 304. Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder. We are not concerned with the exceptions in this case and we need not refer to them, We now refer to the circumstances which turn culpable homicide into murder.

They read:

"300. Murder.

Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing, death, or--

2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.''

Taking the four clauses one by one we find that under the first clause of section 300 culpable homicide is murder when the act by which death is caused is done with the intention of causing death This clause reproduces the first part of section 299. An intentional killing is always murder unless it comes within one of the special exceptions in section 300. If an exception applies, it is culpable homicide not amounting to murder. It is the presence of a special exception in a given case which reduces the offence of murder to culpable homicide not amounting to murder when the act by which death-is caused is done with the intention of causing death.

6. The 2ndly in section 300 mentions one special circumstance which renders culpable homicide into murder. Putting aside the exceptions in section 300 which reduce the offence of murder to culpable homicide not amounting to murder, culpable homicide is again murder if the offender does the act with the intention of causing such bodily injury which be knows to be likely to cause the death of the person to whom harm is caused. This knowledge must be in relation to the person harmed and the offence is minder even if the injury may not be generally fatal but is so only in his special case, provided the knowledge exists in relation to the particular person. If the element of knowledge be wanting the offence would not be murder but only culpable homicide not amounting to murder or even a lesser offence. Illustration (b) appended to this clause very clearly brings out the point. It reads:

"(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, Z dies in consequence of the blow. A is guilty of murder, although the Wow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Zis labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death"

7. The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be said to be sufficient in the ordinary course of nature to cause death, that is to say, the probability of death is not so high the offence does not fall within murder but within culpable homicide not amounting to murder or something less. The illustration appended to the clause 3rdly reads:

"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death"

The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder.

8. The clause 4thly comprehends generally the commission of imminently dangerous acts which must in all probability cause death or cause such bodily injury as is likely to cause death. When such an act is committed with the knowledge that death might be the probable result and without any excuse for incurring the risk of causing death or injury as is likely to cause death the offence is murder. This clause, speaking generally, covers cases in which there is no intention to cause the death of any one in particular. Illustration (d) appended to this clause reads:

"(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."

31. In Shakti Dan v. State of Rajasthan, MANU/SC/7337/2007 : 2007 Cri.L.J. 3426, the Apex Court has explained the distinction between a murder and culpable homicide not amounting to murder. The Apex Court has-held that:--

"Clause (b) of section 299 corresponds with Clauses (2) and (3) of section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death' is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of Clause (2) is borne out by illustration (b) appended to section 300.

16. Clause (b) of section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In Clause (3) of section 300, instead of the words 'likely to cause death' occurring in the corresponding Clause (b) of section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of section 299 and Clause (3) of section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in Clause (b) of section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature".

32. In (State of Andhra Pradesh v. Rayavarapu Punnayya & Ors.), MANU/SC/0180/1976 : A.I.R. 1977 S.C. 45, the Apex Court has held as under:

"whenever the Court is confronted with the question whether the offence is "murder" or cuplable homicide and not amounting to murder on the facts of a case, it will be convenient to it to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done the act by doing which he has caused death of another. Proof of such casual connection between the act of the accused and the death, leads to the second stage for considering whether the act of the accused amounts to 'culpable homicide' is defined in section 299. If answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, penal code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in section 300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under section 304 of IPC depending respectively on whether the second or third Clause of section 299 is applicable. If such question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be culpable homicide not amounting to murder punishable under section 304 of IPC."

33. In the backdrop of this settled principle of law we now proceed to examine the testimony of P.Ws. 18 and 19 which had led to framing of charge under section 302 of the IPC.

34. A plain reading of the evidence of P.Ws. 18 and 19 indicates that they had vaguely stated that the accused Nos. 1 and 10 used to beat Seeta. The evidence of these witnesses does not disclose the manner of the assault or the nature of the injuries caused by such assault. There is absolutely no evidence to prove that Seeta had died as a result of the injury inflicted by the accused or that the accused had intentionally inflicted injury on Seeta knowing that she was suffering from tuberculosis and thereby caused or accelerated the death of Seeta.

35. Relying upon the principles laid down in Shakti Dan (supra) the trial Judge has held that the present case is covered by Clause (2) of section 300 of the IPC. It may be mentioned that Clause (2) of section 300 would apply when the act is done with an intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused. Intention to cause the injury as well as the knowledge that such injury is likely to cause death are the essential requirements of Clause (2) of section 300 of the IPC.

36. In the instant case, there is absolutely no evidence to prove that the accused had committed any such act, which had resulted in death of Seeta. On the contrary, as stated earlier the medical evidence vis-à-vis the postmortem report at Exh. 254 reveals that Seeta was suffering from tuberculosis and that she had expired as a result of tuberculosis Broncho pneumonia with tuberculosis lymphadenitis with fatty liver.

37. It is also pertinent to note that the symptoms such as joint pain, stiffness of knees and rash over the body could be the natural or likely consequences of tuberculosis. The prosecution had not elucidated any evidence from the medical officers either to rule out this possibility or to substantiate that the said condition was caused by beating. In the absence of such evidence, the findings of the learned trial Judge that the ante mortem findings i.e. joint pain, stiffness of knees and rash all over the body fortifies the history of beating are not based on any evidence on record and cannot be sustained.

38. The medical evidence no doubt proves that Seeta was anemic. Nonetheless, the mere fact that Seeta was malnourished and anemic or that she was suffering from tuberculosis does not per se lead to an inference that she was deprived of food and medication. Moreover, the prosecution has not adduced any evidence to prove that the death of Seeta was due to deprivation of proper food and medication. There is absolutely no evidence to prove that the accused had failed to give medication or proper nutrition to Seeta with an intention of causing her death or with a knowledge that it would cause or accelerate her death. In view of which, the finding of the learned Judge that the case is covered by Clause 2 of section 300 cannot be sustained. The death of Sita was not homicidal. Consequently, the conviction and sentence of the accused Nos. 1 and 10 for the offences under section 302 and 304 cannot be sustained.

39. The accused are also alleged to have physically and sexually abused the inmates of Kalyani Sanstha.

40. Heard learned Counsels Shri Vaswani, Shri Mundargi, Mr. Shetty, Miss. Patil and Miss Sangtani on behalf of the accused.

41. The gist of the submissions of the learned Counsels for the accused is that though P.W. 2 is a signatory to both panchanamas at Exhs. 52 and 82, in his evidence before the Court, he had not referred to the first panchanama at Exh. 82. It is further submitted that P.W. 2 has stated the name of the second pancha as Rajkumar while the panchnama states his name as Ramkumar. It is further submitted that the FIR indicates that the premises were sealed on 4th March 2011 and that there is no evidence on record to show that the Investigating Officer had opened the seal on 6th March, 2011. The learned Counsels have further submitted that the evidence of P.W. 2 also does not indicate whether the bungalow was sealed or it was open when the police had visited the same for conducting the panchanama. The learned Counsels have submitted that the prosecution has not adduced any evidence to show that the investigation agency had sealed the said bungalow wherein the Sanstha was housed. It is submitted that the prosecution has not given any reasons for not seizing all the articles on 4th March, 2011. They therefore claim that the second panchanama dated 6th March, 2011 appears to be doubtful and as such no reliance can be placed on the testimony of P.W. 2 as well as P.W. 8.

42. The learned Counsels for the accused have further submitted that the victim namely P.W. 19 was a mentally challenged girl and was not competent to depose. They have submitted that the learned trial Judge has recorded the evidence of the witness without ascertaining whether she was a competent witness. They have farther submitted that P.W. 18 was a deaf and dumb girl and her evidence was interpreted by P.W. 7. The learned Counsels have submitted that P.W. 7 has done her special course only for the hearing impaired and that she was not qualified to interact, explain or understand the signs of a dumb person, and consequently she was not competent to interpret the evidence of P.W. 18.

43. The learned Counsels for the accused have submitted that P.W. 7 had interacted with the victims and had assisted the Investigating Officer in recording their statements under section 161 as well as 164 of Cr.P.C. They therefore claim that P.W. 7 was an interested witness and as such her evidence is unreliable.

44. The learned Counsels for the accused have further submitted that the trial Court has not recorded the signs made by P.W. 18. Furthermore, P.W. 7 has not maintained the records of the signs made by P.W. 18, and in the absence of such evidence it is not safe to rely upon the evidence of P.W. 18. In support of this contention, they have relied upon the judgment of the Apex Court in (State of Rajasthan v. Darshan Singh @ Darshan lal), MANU/SC/0461/2012 : 2012 B.C.I, (soft) 31(S.C.) : (2012)5 S.C.C. 789.

45. The learned Counsels for the accused have further submitted that even otherwise there is no consistency in the sign language as each of the victims has interpreted the signs differently. For instance, P.W. 18 had made a triangular sign by joining her two thumbs and two index fingers to refer to private part, whereas P.W. 17 has interpreted this sign as Samosa. It is submitted that in the absence of record of signs either by the interpreter or by the learned Judge, no reliance can be placed on the evidence of the said witnesses.

46. The learned Counsels for the accused have submitted that though P.W. 17 had initially stated that she was sexually abused by the accused No. 1, in the cross-examination she has admitted that she used to go out with her boy friend and used to have sexual intercourse with him. They have further submitted that P.W. 17 has admitted in her cross-examination that the accused No. 1 was not involved in sexually abusing her and the other girls and that she had deposed falsely at the instance of P.W. 7 and the Investigating Officer. They have further submitted that the evidence of P.W. 17 reveals that the girls used to masturbate and insert sticks in their private parts and hence the mere rupture of hymen or other injuries on the private parts would not indicate that they were sexually abused by the accused. They have submitted that the evidence of P.W. 17 is totally in variance with the evidence of P.W. 18. The inconsistency in the evidence of both these witnesses casts a doubt on the prosecution story.

47. The learned Counsels have further submitted that whenever the victim made a statement which was favourable to the accused, the learned Judge intervened and alerted the witness by asking Court questions. Relying upon the judgment of the Apex Court in (State of Rajasthan v. Ani @Hanif & Ors.), MANU/SC/0233/1997 : A.I.R. 1997 S.C. 1023, it is submitted that the Court questions could have been asked only in case of ambiguity and not to obtain answers favourable to the prosecution case. They have further submitted that the learned trial Judge also disallowed the material questions asked to P.W. 17, which has caused prejudice to the accused and has resulted in unfair trial. It is submitted that the evidence of P.W. 17 and P.W. 18 clearly indicates that both these witnesses were tutored by P.W. 7. They have further submitted that the evidence of P.Ws. 17, 18 and 19 was recorded in the presence of the interpreter as well as the psychologist Archana Singh. They have submitted that while the victims were under cross-examination, the learned trial judge asked several Court questions to the psychologist and sought her opinion about the answers given by the victims. They have submitted that the procedure adopted by the learned trial Court is totally novel and unheard of.

48. The learned Counsels for the accused have further submitted that the prosecution has not examined the other victims, who were also allegedly sexually abused by the accused and has also not assigned reasons for not examining these victims. The learned Counsels have submitted that there is absolutely no evidence to hold the accused guilty of offence under section 376 of the IPC or under any of the other clauses of sub-section (2) of section 376 IPC.

49. Ms. Salian, the learned Special PP has submitted that the evidence of P.W. 17 and P.W. 18 who were the victims of crime amply proves that the accused had subjected them to physical and sexual abuse. She has further submitted that the medical evidence duly corroborates the evidence of these witnesses. She has submitted that P.W. 18 is not a mentally challenged witness but was only a deaf and dumb witness and was-competent to depose. The learned APP has submitted that the services of an expert witness P.W. 7 Sunanda Tarte were availed to interpret the evidence of this witness. The learned Special APP has further submitted that even otherwise the signs made by the witness were so simple and clear that there was no doubt about the interpretation of her evidence.

50. The learned Special PP has further submitted that the medical evidence also corroborates the evidence of these victims. She has relied upon the judgment of (Kamalnath & Ors. v. State of Tamilnadu), MANU/SC/0259/2005 : 2005(5) S.C.C. 194 and (Bhupendra Sharma v. State of Himachal Pradesh), MANU/SC/0825/2003 : A.I.R. 2003 S.C. 4684. She has submitted that the conviction can be based on the testimony of the prosecutrix alone without necessity of corroboration. She has urged that the evidence of P.W. 18 inspires confidence. She has submitted that P.W. 18 had no reason to depose against the accused and can be the basis of conviction.

51. The learned Special APP has further submitted that P.W. 17 is a witness with below average IQ. Her evidence which is duly corroborated by P.W. 18 also supports the prosecution case. Furthermore, her evidence is duly corroborated. She has submitted that the evidence of P.W. 17 cannot be discarded merely because of some of the answers given by her in her cross-examination wherein she has admitted some of the suggestions put to her in the cross-examination. The learned Special PP has submitted that the witness was traumatized and physically and sexually abused by the accused who had dominion over her. She has further submitted that some stray answers given by the witness being under psychological pressure, or physical and mental disability cannot be a ground to discard the entire testimony. She has submitted that the minor discrepancy in the testimony of the victim is not fatal to the case of the prosecution.

52. The learned Special PP has further submitted that the irregularity if any, in the investigation, prosecution or trial has not caused any prejudice to the accused and has not resulted in failure of justice and as such, the same cannot be regarded as fatal. She has submitted that the evidence on record proves beyond reasonable doubt that the victim girls were subjected to physical as well as sexual abuse and as such, the conviction and sentence does not warrant interference.

53. The learned APP Ms. Bhosale has submitted that there is sufficient evidence on record to prove the guilt of the accused and that the learned Judge has totally erred in acquitting the accused of the offences for which they were charged with.

54. The learned APP has submitted that the accused has not furnished an explanation in his statement under section 313 of Cr.P.C. regarding the incriminating material that has been produced against him. Relying upon the judgment of (Phula Singh v. State of Andhra Pradesh), MANU/SC/0164/2014 : (2014)4 S.C.C. 9 she has submitted that silence of the accused warrants drawing of adverse inference against him.

55. We have considered the submissions advanced by the learned Special PP and the learned counsels for the accused. We have carefully analysed the evidence adduced by the prosecution to examine whether the prosecution has succeeded in proving the charge of physical and sexual abuse of the girls housed in the society warranting conviction and sentence for offences under section 376(2)(c), 376(2)(g) and 377 IPC. Before adverting to the facts of the case, it is imperative to consider and comprehend the essential ingredients and legislative intent of these relevant sections.

56. Section 376 (as it stood prior to 2013 Amendment), prescribes stringent punishment in some special case of rape which fall within any of the Clauses (a) to (g) of Sub-section (2) of this section. This classification is based on the gravity of the offence, the vulnerability of victim and the amount of influence that could have been exercised by the accused upon the victim by virtue of their special position. Clauses (c) and (g) of Sub-section (2) of section 376 IPC, which are relevant in the present case, read as under:

"(2)Whoever,-...

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or...

(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1 of this sub-section says " Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Whereas Explanation 2 provides that "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or by any other name, which is established and maintained for the reception and care of woman or children."

Section 377 IPC, which covers unnatural offences states that:--

"whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine".

Explanation to this section provides that penetration is sufficient to constitute the carnal intercourse necessary to the offence described under this section.

57. Section 114-A of the Indian Evidence Act (as it stood prior to 2013 amendment) raises a presumption that in a prosecution for rape under Clauses (a) to (g) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

58. Keeping these provisions in mind, we proceed to analyse the evidence on record and ascertain whether the prosecution has established beyond reasonable doubt that:

"a) the accused No. 1 was holding a special position as stated in Clause (c) of sub-section of section 376,

b) the accused had taken advantage of his/their position and committed rape on the inmate of the orphanage

c) the accused Nos. 1 and 3 had committed gang rape

d) the accused had carnal intercourse against the order of nature."

59. Reverting to the facts of the present case, it is alleged that the mentally challenged victim girls, who were allegedly raped, were housed in Kalyani Sanstha, situated at Khanda Colony, Kalparaj Row House near New Panvel. The registration certificate at Exh. 179 clearly indicates that said Sanstha was registered with Women and Child Department, Pune, Maharashtra w.e.f. 5th December, 2009. The evidence of P.W. 1 Neela Tulpule, the President of Child Welfare Committee reveals that the accused Kalyani Karanjule, daughter of the accused No. 1, was the president of the said Sanstha whereas accused No. 1 and his wife Surekha were the trustees of the said Sanstha. The evidence of P.W. 3 vis-à-vis the report at Exh. 58 also proves that the members of the Committee appointed by this Court had inspected the premises and verified all the files and documents in respect of the said Sanstha. The evidence of the committee members indicates that total 19 girls, who were mentally or physically disabled were housed in the said premises/Sanstha. The accused No. 1 and his family members, who were the trustees of the said Sanstha, were residing in the same premises.

60. It may be mentioned here that the panchanama at Exh. 82 colly was drawn by P.W. 14-Sanjay Shukla on 4.3.2011 in presence of P.W. 8 Dinesh Jadhav and one Ramkumar Yadav and several articles including gate register, visitors' books, registers wherein the name of the accused No. 5 was recorded as the chairperson and the names of the accused Nos. 1 and 9 were recorded as the trustees of the Sanstha were seized under the said panchanamas. The Investigating Officer had also conducted another panchanama on 6th March, 2011 and had seized several other registers and articles from the premises under panchanama at Exh. 52 colly, drawn in presence of P.W. 2 Sandeep Kumar Vimal Singh and Ramkumar Yadav.

61. A perusal of both these panchanamas reveal that one Ramkumar Yadav, who has not been examined, was a common witness to these two panchanamas. P.W. 2 -Sandeep Kumar Vimal Singh was not a witness to the first panchanama drawn on 4th March, 2011 as submitted by the learned Counsel Mr. Vaswani and as such there was no question of this witness referring to the first panchanama. It is further to be noted that no evidence was elucidated from P.W. 14 to explain as to why the articles seized under the second panchanama were not seized under the first panchanama drawn on 4th March, 2011. Hence the evidence of P.W. 2 and P.W. 8, who have otherwise emerged as credible witnesses cannot be disbelieved merely because the Investigating Officer had seized the articles on two different dates or under two panchanamas.

62. The evidence of P.W. 2 Sandeep Kumar Vimal Singh, P.W. 8 Dinesh Jadhav and P.W. 14 Sanjay Shukla vis-à-vis the panchanama at Exh. 52 colly and 82 colly therefore proves that the registers and files including the registers containing the names and addresses of the office bearers of the Kalyani Sanstha were seized from the premises of the said sanstha. The aforesaid evidence was not seriously challenged by the accused and it was only in the statement under section 313 of the Cr.P.C. that the accused had denied their association with Kalyani Sanstha.

63. It is also to be noted that the accused had examined D.W. 7- the District Probation Officer in the office of Women and Child Development Office at Alibag-Raigad. The evidence of this witness vis-à-vis his report at Exh. 273 clearly supports the case of the prosecution that the accused Kalyani Karanjule, daughter of the accused No. 1, was the president of the said Sanstha whereas accused No. 1 and his wife Surekha were the trustees of the said Sanstha, wherein the mentally challenged children were housed. The evidence of this witness therefore falsifies the defence raised by the accused.

64. P.W. 3 Naina Athale, is the Assistant Professor at Tata Institute of Social Science with masters degree in social work. Whereas P.W. 5-Deepali Bhattacharya is an Associate General Manager of CRY, (Child Rights and You). She has done her M. Phil, in political science and has worked for Tata Institute of Social Science and Action Aid Institute and has been working as a Counselor in schools and other organization for child and women the evidence of PW-3, Naina Athale and P.W. 5 Deepali Bhattacharya indicates that they had inspected the Sanstha. They had seen cloths like trousers, banian and shaving kit on the first floor of the said premises. They were told that the said clothes were of the accused No. 1-Ramchandra.

65. These witnesses have deposed that they had interacted with the 19 mentally/physically challenged girls who were the inmates of the said sanstha. The three victims who have been examined shall be hereinafter referred to as P.W. 17, P.W. 18 and P.W. 19 respectively and the other inmates who have not been examined shall be referred to by their initials. P.W. 3 has stated that she had noticed that one of the mentally challenged girls (P.W. 17) was continuously spitting, which according to P.W. 3 is one of the symptoms of sexual abuse. P.W. 3 and P.W. 5 strongly suspected that the girls were sexually and physically abused. The Committee therefore submitted the report at Exh. 58 to Ms. Asha Bajpai. They highlighted several irregularities committed by CWC and requested the CWC to inspect the premises and take necessary action.

66. In view of the directions given by the Committee, P.W. 1, Neela Tulpule and P.W. 10 Dattatraya Kurlekar visited the Sanstha on 28th February, 2011. They interacted with the children and they suspected that some college boys were visiting the Sanstha and the girls were sent out. They suspected that the girls were sexually abused. On 2nd March, 2011 they took the said girls to rural hospital, Panvel for medical examination. Dr. Swati Naik examined the said girls and reported that some of the girls were sexually abused.

67. P.W. 4 Dr. Swati Naik is a gynecologist attached to rural hospital, Panvel. She has deposed that CWC had referred some girls from Kalyani Sanstha for medical examination. She had examined all the 19 girls and found that 5 girls were habituated to sexual intercourse. The medical reports at Exhs. 65 to 69 coly, read as under:--

68. The evidence of P.W. 4 vis-à-vis the medical report at Exhs. 63 and 64 colly reveals that these mentally challenged girls who were the inmates of Kalyani Sanstha were sexually abused. Some of these girls were barely 13-15 years of age. The medical reports confirmed the suspicion that the girls were sexually abused and this led to filing of the FIR at Exh. 41.

69. The evidence on record indicates that since the children were mentally challenged and some were deaf and dumb services of P.W. 6-Dr. Archana Singh, Psychiatrist attached to the Government Hospital, Alibag, and P.W. 7 Sunanda Tarte, who is a teacher having done her B.A.B. Ed. and special course for hearing impaired, were availed to record the statements of the said victim girls under sections 161 and 164 of the Cr.P.C.

70. The testimony of P.W. 6 and P.W. 7 indicates that they had interacted with the girls including the victim girls P.Ws. 17, 18 and 19 from 12th April, 2011 to 18th April, 2011. They had tried to understand the sign language developed by the girls. They established a rapport with the victim girls and questioned them about the incident. Once the girls opened up and narrated the incident, they assisted the Investigating agency in recording their statements under sections 161 and 164 of Cr.P.C.

71. It may be mentioned here that P.W. 6 and P.W. 7 have narrated the incident as disclosed by the victim girls and as recorded in their statements under section 161 of Cr.P.C. The learned trial Judge has also taken on record and exhibited these statements at Exhs. 75 and 78 colly. Needless to state that the statement recorded under section 161 of Cr.P.C. is not a substantive evidence. The statement under section 161 of Cr.P.C. cannot be used for the purpose of corroboration of any other witness. Under the proviso to section 162 of Cr.P.C., the statement made by the witness under section 161 of the Cr.P.C. can be used by the accused, and with the permission of the Court by the prosecution, to contradict such witness in the manner indicated in section 145 of the Indian Evidence Act. Similarly, a statement under section 164 of the Cr.P.C. is not substantive evidence. It can be used to corroborate the statement of a witness or to contradict a witness. The records of the present case indicate that the learned trial Judge has used the statements of the victims recorded under section 161 as well as 164 of Cr.P.C. as substantive evidence. The learned Judge has therefore committed a manifest illegality in taking on record and relying upon the wholly inadmissible evidence. The manner in which the learned trial Judge has conducted the trial is not satisfactory. However, these irregularities are not fatal as the same have not caused any prejudice to the accused.

72. Be thatas it may, the evidence of P.W. 6 Dr. Archana Singh reveals that she had also evaluated the girls. Based on the clinical evaluation, she had classified the girls in three categories. Some of the girls including P.Ws. 17 and 19 were suffering from mild mental retardation i.e. they were having IQ level of above 75%. She has deposed that the girls in this category were able to memorize all the incidents. Some girls were suffering from severe mental retardation with IQ level of below 50%. The children in this category did not have proper communication skills and emotional drive and that they could not interact with these children due to their physical and mental condition. She has deposed that the children in the third category were deaf and dumb with normal IQ level. But were unable to communicate in normal language.

73. The testimony of P.W. 6 reveals that the girls were under stress, felt insecure and were going through depression. She has deposed that one of the victims was admitted in the Government hospital wherein she was working. The said girl was suffering from severe depression, which in medical terms called "post traumatic stress disorder". She has further deposed that P.W. 18 appeared to be scared and used to cry. She has further stated that P.W. 18 had proper orientation of time place and person and being in the first category of mild mental retardation she was able to narrate the incident.

74. P.W. 11 Dr. Harish Shetty, is a psychiatrist by profession. He has done his MD in Psychiatry and Diploma in Psychological medicine and postgraduate diploma in comparative mythology from Mumbai University. He was one of the members of the committee appointed by the High Court in Public Interest Litigation 180 of 2010. He has deposed that he had visited the said 19 girls at Shaskiya Mahila Sudhar Griha at Karjat. He had interacted with the said 19 girls for full three days. He has stated that the physical and psychological observations of the said girls revealed that their sleep and appetite had gone down. The girls had complained about sexual abuse in the earlier home and they appeared to be very scared and traumatized. He has stated that the girls required counselling, psychotherapy and rehabilitation. The girls had serious memories of sexual molestation and rape. They had lot of anger against those who had subjected them to rape and molestation and spoke vividly with verbal and non-verbal gestures.

75. P.W. 11 has deposed that the psychiatric and mental status examination was conducted by taking detail history through different methods. The method was repeated in order to verify the consistency of the information. The girls were also allowed to sign, draw and play, in order to get their detail understanding. He has deposed that he had established a bond with the girls and thereafter made general enquiries and elucidated the information from them. He has deposed that the girls were allowed to use clay and crayons. The girls were given pictures of men and women and were asked to describe what they felt about it. He has deposed that the girls had used lot of dark colours and expressed lot of anger on the sexual part of the men. He has deposed that the girls had taken names of alleged molesters and had used lot of sexual idioms in Marathi and Hindi. After examining the girls he submitted his report at Exh. 97 colly, wherein he has clearly opined that the girls were sexually abused.

76. P.W. 11 has stated in his cross-examination that he had interviewed the girls in groups and had examined them with the help of a psychologist. He has stated that P.W. 17 and 18 were the first ones to be examined. He has deposed that the girls did not recollect the exact date of sexual abuse. He has stated that the girls were sexually abused consistently. He has denied the suggestion that he had fabricated the report being member of the High Court Committee. The evidence of this expert witness also proves that the girls were sexually abused and were physically and emotionally traumatized.

77. The prosecution has examined three inmates viz. P.W. 17, P.W. 18 and P.W. 19 to prove the charges of physical and sexual abuse. It may be mentioned that the observations made by the learned Judge indicate that P.W. 19 was severely mentally retarded. She was unable to give proper answers to the questions asked by the learned Judge. Despite which the learned Judge administered oath to the said victim girl and recorded her evidence without arriving at a satisfaction that she was a competent witness. A perusal of the impugned judgment reveals that the learned Judge has not relied upon the testimony of this witness since she was not a competent witness. In view of which we do not find it necessary to refer to the testimony of this witness.

78. PW 17 who is one of the victim girls was between 18 to 20 years of age. The learned Sessions Judge has observed that though she was "mentally sub normal", she could give rational answers. She was aware of the sanctity of oath and hence she was administered oath. P.W. 17 has referred to the accused Ramchandra Karanjule as Papa, his wife Surekha as Mummy and accused No. 10 Parvati Mavle as Aaji. P.W. 17 has deposed that whenever she used to sleep, the accused No. 1 used to call her upstairs and if she refused, he would assault her. She has stated that the accused No. 1 would sexually abuse her by touching and licking her breast. She has also stated that the accused No. 1 had sexual intercourse with her and had also compelled her to perform oral sex by putting his private part in her mouth. She has stated that the accused had threatened her not to disclose the incident to anyone.

79. P.W. 17 has further deposed that the accused Nanabhau (A2) had sexually abused P.W. 18 and that Mayekar (A3) and Khadke Sir (A4) had sexually abused (SK), one of the victim girls who has not been examined. In her cross-examination she has stated that there were total 21 girls in the said Sanstha and that she used to take care of all the said girls. She has stated that the complainant Tulpule used to visit them at Karjat and that she had accompanied them to Neral Hospital, as well as J.J. Hospital. She has further stated that the P.W. 1 Tulpule had told her as to what to disclose to the doctor. She has further stated that she and Tupule had told other girls as to what to depose before the Court about Ramchandra, Sonali, Nanabhau, Khadke Sir, Mavle Aaji etc. She has further stated that she and Tulpule had explained to the other inmates as to what to depose against the accused persons. She has further stated that the complainant Tulpule and Tarte had told her as to what to depose before the Court against the accused Ramchandra. She has stated that her statement was recorded before the Court and that Tulpule had told her as to what was to be stated against the accused No. 1 and the other accused persons. In the cross-examination this witness has given the following answers to the question Nos. 39 and 40

"Q.39 Ramchandra did not do dirty work with you and you are telling lie at the instance of police?

Ans. Yes Ramchandra did not do anything with me.

Q.40. You are telling lie at the instance of Police?

Ans- Yes Madam."

80. After the lunch break, it appears that the Sessions Judge had asked the following Court questions:

"Q.1 - What did Ramchandra do with you? Ans. He has done dirty work with me.

Q.2- You are telling lie?

Ans. No Madam.".

81. The records reveal that the learned judge had explained the questions to the witness and had brought to the notice of the witness that earlier she had answered a similar question in the affirmative. When the learned judge repeated the questions the witness denied that she was tutored and further denied that she was telling lies at the instance of Tulpule. She had admitted the suggestion that she had been told how to depose and what to depose in the Court. However immediately thereafter she denied that she was tutored by anyone. The learned Judge observed that the witness had not understood the earlier question and only after the question was explained to the witness had stated that she was not tutored by anyone.

82. We are unable to appreciate the contention of the learned Counsel for the accused that the learned Judge had interjected and had asked questions to negate the pivotal answers elicited in the cross-examination of the witness. Suffice it to say that the Court has ample powers under section 165 of the Indian Evidence Act to put any question to the witness to elicit the truth. Reference can be made to the decision of the Apex Court in State of Rajasthan v. Ani @ Hanif, (supra) wherein it is held as under:

"Section 165 of the Evidence Act confers vast and unrestricted powers on the trial Court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial Court to use the power whenever he deems it necessary to elicit truth. Even if any such question crossed into irrelevancy the same would not transgress beyond the contours of powers of the Court This is clear from the words "relevant or irrelevant" in section 165. Neither of the parties has any right to raise objection to any such question.

Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriates context which the feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross- examination or even during re-examination to elicit truth The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised. In this context it is apposite to quote the observations of Chinnappa Reddy, J. in (Ram Chander v. The State of Haryana), MANU/SC/0206/1981 : A.I.R. 1981 S.C. 1036:

"The adversary system of trial being what is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."

We respectfully concur with the aforesaid observations."

83. In the instant case P.W. 17 is a mentally challenged girl who was an inmate of Kalyani Sanstha and over whom the accused No. 1 had total dominion. Having regard to the physical, sexual and emotional trauma the victim underwent, the learned Judge had an onerous task of ensuring that the victim was able to understand the import of the questions asked by the defence Counsel and that she was able to give correct answers. It has to be borne in mind that the criminal trial is not a dual between the prosecution and the defence but as held by the Apex Court in (Ritesh Tiwari v. State of U.P.), MANU/SC/0742/2010 : (2010)10 S.C.C. 677 "every trial is a voyage of discovery in which truth is the quest". The learned Judge therefore cannot be faulted for interjecting and asking or explaining the questions to the witness in her endeavour to discern the truth. On the contrary, the judge would have failed in her duty had she chosen to remain a passive or silent spectator.

84. It is pertinent to note that in answers given to question Nos. 76 till 162 the witness had admitted almost all suggestions put to her. Some of the questions and answers reproduced verbatim read as under:--

"Q.76: Is it correct to say that during quarrel you girls used to tear clothes of each other.

Ans: It is correct.

Q.77: Is it correct that during quarrel you girls used to beat each other with sticks?

Ans: It is correct.

Q.78: Is it correct to say that the girls used to put sticks in the urinal organs of each other?

Ans.: It is correct to say that girls used to put sticks in the urinal organs of each other.

Q.82: Is it correct that you did not know Mayekar?

Ans: It is correct.

Q.97: Is it correct that you have been taught by Tarte Madam to tutor girls against Nanabhau Karanjule?

Ans.: It is correct.

Q. 123: Kiran your friend used to take you to the temple of Shankar for the purpose of marriage?

Ans: It is correct.

Q.125: Kiran used to put his urinal organ in your urinal organ and used to squeeze your chest?

Ans. It is correct.

Q. 127: Only Kiran used to do dirty work with you and no other person correct?

Ans.: It is correct."

85. In the like manner P.W. 17 has admitted that she is deposing against the accused No. 3 Mayekar and accused No. 2- Nanabhau at the instance of Madam Tulpule. She has admitted that P.W. 18 and another girl, (who has not been examined) used to insert fingers into the private parts of the other girls. She has admitted that every day they were being tutored as to what is to be deposed in the Court. She has farther admitted in the cross examination that Sunanda Tarte had stayed with them at Khanda Colony for about one month. She has stated that she like to wear good clothes and use make up and also liked to dance. She has admitted that she had danced with Turpule, Athale and Dighe when they visited Khanda Colony. She has admitted that she was not allowed to leave the sanstha and that she used to sneak out. She has admitted that nothing as deposed by her in the examination in chief had happened. She has admitted that none of the 10 accused persons had done any 'dirty work' with her. She has admitted that she was not medically examined by the doctor. She has deposed that Mavle Aaji (A10) was providing them food and used to take care of them whenever they were admitted in the hospital. She has stated that Mavle Aaji (A 10) used to beat them whenever they used to make noise and that she had called them Nalayak only for that reason.

86. It is evident that the questions at Serial Nos. 123 to 127 were aimed at establishing that the victim was having illicit relationship with one Kiran and that she was habituated to sexual intercourse. Needless to state that the victim was not facing a trial. Furthermore, her moral character was not in question and could not have been in question in view of omission of Clause 4 of section 155 of the Indian Evidence Act. It is also to be noted that the victim who was a mentally challenged girl and an inmate of Kalyani sanstha, could not have left the premises as per her own sweet will, without permission of the accused or the CWC members. The learned trial Judge totally lost track of these facts and consequently subjected the victim to humiliation and degradation by allowing the defence Counsel to ask such questions in uncontrolled cross-examination.

87. It is pertinent to note that the evidence of P.W. 6 reveals that P.W. 18 was suffering from mild mental retardation. The evidence of P.W. 6 as well as the preliminary questions asked by the learned Judge indicate that this witness could give rational answers and that she was a competent witness. A plain reading of the evidence of this witness indicates that in her examination-in-chief she had consistently stated that the accused No. 1 had sexually abused her. However, in her cross-examination she had admitted almost all the suggestions thereby giving an indication that she had literally negated the allegations levelled against the accused.

88. The question which therefore arises is whether the entire evidence of this witness should be treated as effaced in view of the answers given by her in the cross examination. At this stage it would be advantageous to refer to the decision of the Apex Court in (Khujji v. State of MP), MANU/SC/0418/1991 : 1991(3) S.C.C. 627, wherein the Apex Court has reiterated the well settled principles laid down in the previous decisions in (Bhagwan Singh v. State of Haryana), MANU/SC/0093/1975 : (1976)1 S.C.C. 389, (Ravindrakumar Day v. State of Orissa), MANU/SC/0176/1976 : (1976)4 S.C.C. 233 and (Sayyad Akbar v. State of Karnataka), MANU/SC/0275/1979 : (1980)1 S.C.C. 30, that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him. The evidence of such witness cannot be treated as efface or washed off the record altogether. But the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.

89. We are conscious of the fact that P.W. 17 is not a hostile witness. Nonetheless, it has to be borne in mind that this witness, though a competent witness, was a mentally challenged girl with IQ level below average. She was subjected to long drawn and strenuous cross-examination spilled over several days by battery of lawyers. It was virtually a battle between a mentally challenged girl and skilled lawyers. The observations made by the learned trial Judge also indicate that the witness was confused and was unable to understand the questions asked in the cross-examination. The tenor of the answers given by this witness fortifies the observations made by the learned Judge. A plain reading of evidence of P.W. 17 also indicates that this witness was subjected to repetitive questioning as to the details of the occurrence. It is evident that the witness was either utterly confused, nervous or anxious due to her mental disability coupled with dexterous cross-examination or that she was frustrated because of repeated and long drawn strenuous cross-examination by skilful defence lawyers, in unfamiliar and unfriendly Courtroom environment. Under the circumstances we are not inclined to discard the evidence of this witness altogether but our endeavour is to scrutinize the evidence carefully and find out whether substratum of her evidence is consistent and credible and accept the part of the evidence which is found to be dependable.

90. Much would therefore depend on the quality, reliability and credibility of the testimony of P.W. 18. We will therefore analyse the evidence of P.W. 18, a 21 years old victim girl and examine whether her evidence corroborates the evidence of P.W. 17 and supports the prosecution case. P.W. 18 who was also allegedly subjected to physical and sexual abuse is not a mentally challenged girl, but is a deaf and dumb girl and is a competent witness. P.W. 18 was not able to write and as such her evidence could not be recorded by giving her questions in writing and seeking answers in writing. The evidence of this witness was therefore recorded in sign language and with aid of the Interpreter and both these witnesses were administered oath.

91. The evidence of P.W. 18 reveals that she had identified accused No. 1 by making gestures that he had a beard and had referred to him as Papa. This witness had stated that the accused No. 1 used to beat her. This witness had stated that he had banged her head against the wall and caused her bleeding injury. She has further stated that the accused No. 1 used to consume alcohol and compel her to consume alcohol. She has stated that the accused No. 1 used to take her and the other girls upstairs and that the accused Nos. 1 and accused No. 3- Deepak Mayekar used to sprinkle something on the sweets and make them eat the said sweets. She has stated that she had felt giddy after eating the said sweets and that thereafter the accused No. 1 and said Mayekar switched off the lights, removed their clothes and had sexual intercourse with them. She has stated that the accused No. 1 had sexual intercourse with P.W. 17 and another girl (M), who has not been examined. She has further stated that the accused No. 3 Deepak Mayekar had sexual intercourse with the other girls (M, PR, P.W. 19 and S.)

92. This witness has further stated that the friends of the accused No. 1 used to come to the Sanstha with alcohol and they used to take them to some other place by vehicle and asked them to do work or sweeping, throwing garbage etc. She has stated that the accused No. 1 and Mayekar used to consume alcohol and used to sexually abuse them. She has stated that the accused No. 1 had sexually abused her several times and that his friend had sexually abused P.W. 17 and the other girls.

93. P.W. 18 has further deposed that the accused No. 1 would come near them every night and she and the other girls used to get scared of him. She has stated that the accused No. 1 would use condom and force himself on them almost every night, and in case they screamed, he used to slap them. She has further deposed that the accused No. 1 thereafter would burn the condoms. She has also stated that the accused No. 1 had threatened them not to disclose the said incident to anyone.

94. P.W. 18 has deposed that the accused No. 1 used to call Mayekar whenever there was no one in the Sanstha. She has stated that once after finishing the work of cleaning utensil, washing clothes etc. when she went to the room which was upstairs, she saw accused No. 1 Ramchandra sexually abusing victim girl 'J'. She has stated that she was scared and went back to sleep pretending as if she had not seen anything. She has stated that the accused No. 1 had seen her and hence he came down, woke her up, took her upstairs, beat her and threatened her not to disclose the incident to anybody. The demeanour of the witness as recorded by the learned Judge reveals that the witness was weeping as she was narrating the said incident.

95. P.W. 18 has deposed that Ramchandra used to ask P.W. 17, and the other victim girl 'P' to massage his legs and while doing so, he used to gradually put his penis into their month and compel them to have oral sex. She has stated that she had also seen accused No. 1 having sexual intercourse with V. She has also stated that she had also seen one Khadke Sir having sexual intercourse with 'S'.

96. P.W. 18 has further deposed that one day the accused No. 1 and Deepak Mayekar had come with two bottles of liquor. Accused No. 1 asked her to give him head massage; thereafter he opened his shirt buttons, took her into his arms and then left her. Thereafter accused No. 1 and Mayekar went upstairs, told her to bring food. He also called P.W. 17, 'P' and 'SO' upstairs. She has stated that they poured alcohol in two glasses and mixed something in it and gave them to drink. Thereafter the accused Mayekar brought some condoms; he removed their clothes and committed rape on them She has deposed that the accused No. 1 used to give her money and tell her not to disclose the incident to anyone. She has stated that she used to handover the money to 'Mummy-Accused No. 9, the wife of accused No. 1. She has stated that the accused No. 2- Nanabhau used to take the girls to his house and make them do the work like washing utensils etc. Some time he used to make them lie by his side and kissed them.

97. P.W. 18 has stated in her cross-examination that she had not complained about the physical and sexual abuse to anyone. She has stated that they used to take her out to functions, entertainments and dance programs. She has admitted that she has not disclosed this fact to anyone. She has been residing in Khanda Colony since her childhood. She has denied that she was tutored by P.W. 17 or by ACP Karandikar or P.W. 1 Tulpule and Muthe to give statement against the accused. She has denied the suggestion that she was not sexually abused by the accused named above. She has reiterated that she was not tutored by anyone to depose in the Court. She has denied the suggestion that there was no incident of sexual and physical abuse at Khanda Colony. She has denied the suggestion that the accused No. 2 Nanabhau had never touched or kissed her. She has also denied the suggestion that she is deposing falsely at the instance of P.W. 17 and P.W. 1 Tulpule.

98. P.W. 18 has stated that she did not know P.W. 7 Tarte prior to the incident and that she had met her for the first time along with P.W. 22 Mangala Mote. She has stated that she goes to school. However, she was unable to give the name of the school. The witness could write and she had given the name of her teacher as Manasi and she had also written the alphabets and some numbers upto 20. She has further stated that she had developed her own sign language. She has denied that Tarte used to take her studies after school.

99. She has deposed that she had stated in her statement under section 164 that while Ramchandra and Mayekar were drinking liquor, Sonali and Kalyani had locked the door from outside. She has stated in the statement under section 164 that accused Nanabhau had made her lie down on the bed and had kissed her. She has stated that she is unable to state as to why the said statement is not recorded in her 164 statement. She has stated that she had deposed that she has not stated in her statement under section 164 Cr.P.C. that the wife of Nanabhau had seen him doing the said act with her and that the wife of Nanabhau had beaten him. She has explained that she had forgotten to state the said fact in the statement. She has denied the suggestion that P.W. 7 Sunanda Tarte, Muthe Madam and Samrin madam had tutored her to depose in the Court.

100. It is pertinent to note that though this witness was cross-examined at length, she was not asked any questions as provided under section 146 of the Indian Evidence Act to test her veracity or shake her credibility. As a result, the substantive evidence of this witness that the accused Ramchandra and Mayekar had sexually abused her and the other victim girls in the manner deposed by her has virtually gone unchallenged. Apart from bare denials, nothing cogent has been elicited to discard or disbelieve her testimony.

101. The evidence of P.W. 18 is sought to be discredited mainly on the ground that the interpreter P.W. 7-Sunanda Tarte was involved in interpreting the statements of this witness and the other victims, recorded under section 161 of the Cr.P.C. Relying upon the judgment in (Ah. Soi. v. Emperor), A.I.R. 1926 Calcutta 1922 it is submitted that P.W. 7 is not an independent witness.

102. The other plank of argument is that the learned Judge has not recorded the signs made by the witness and as such, there was no correct compliance of the provisions under 119 of the Indian Evidence Act. In support of this contention reliance is placed on the decisions in

"(i) (Kumbhar Musa Alib v. State of Gujarat), MANU/GJ/0037/1966 : A.I.R. 1966 Cri.L.J. 542

(ii) (Kadungoth v. State of Kerala), MANU/KE/0146/1981 : 1982 Cri. L.L. 94

(iii) (Dilawarsab Alisab Jakati v. State of Karnataka), MANU/KA/0159/2005 : 2005 Cri.L.J. 2687

(iv) (Sunil Kumra @ Banti son of Shri Roshan Lal v. State of Himachal Pradesh), MANU/HP/0081/2012 : 2012 Cri.L.J. 1743."

103. At the outset it may be mentioned that in State of Rajasthan v. Darshan Singh, MANU/SC/0461/2012 : 2012 B.C.I. (soft) 31(S.C.): (2012)5 S.C.C. 789 the Apex Court has held that:--

"18. The object of enacting the provisions of section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to for higher culture than one was once supposed. When a deaf and dumb person is examined in the Court, the Court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs.

19. In (Meesala Ramakrishan v. State of A.P.), MANU/SC/0709/1994 : (1994)4 S.C.C. 182, this Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that 'verbal' statement does not amount to 'oral' statement. In view of the provisions of section 119 of the Evidence Act, the only requirement is that witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral evidence within the meaning of section 3 of the Evidence Act. Signs and gestures made by nods or head are admissible and such nods and gestures are not only admissible but possess evidentiary value.

20. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.

A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message.

21. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath."

104. In Ah. Soi. (supra) one of the prosecution witnesses had interpreted the evidence to the accused. It was under these circumstances it was held that a witness who had taken an active part during the police investigation, who had given evidence in the committing Magistrate's Court on behalf of the prosecution and who is found to be ready and willing to give evidence in the Sessions Court on behalf of the prosecution against the man who is charged with serious offences under sections 302 and 304 of the IPC should have been chosen to act as an interpreter is a procedure stated to call forth for severe condemnation.

105. In Kadungoth Alab (supra) one of the witnesses was deaf and dumb and the judgment as well as the deposition did not reveal as to who has assisted the Court in eliciting the answers in chief-examination. Relying upon the judgment in Ah Soi (supra) the Kerala High Court held that the evidence of a deaf and dumb witness ought to have been recorded with the help of an expert or some person who is very much familiar with the witness and who is not a prosecution witness.

106. In Dilwarsab Alisab Jakati (supra) the Karnataka High Court has held that the Court while recording the evidence of deaf and dumb witness, must record both signs as well as interpretations of the interpreter and then only it becomes admissible under the Indian Evidence Act.

107. In Sunil Kumar @ Banti (supra) the trial Court had not recorded the signs made by the prosecutrix in answer to the question put to her and also the manner in which the prosecutrix was made to understand by the interpreter. It was therefore held that there was no compliance of section 119 of the Evidence Act. The Himachal Pradesh High Court further held that the expert or the interpreter ' was not familiar with the prosecutrix. It was further held that the learned trial Court cannot be expected to have anything more than a layman's knowledge in conversing with a deaf and dumb person and that it was highly improbable on the learned trial Court to embark upon the examination of the prosecutrix with the help of an expert or a person not familiar with her mode of idea of day to day life. It was held that no other person than her parents and near relatives conversant with the signs and gestures would have been a competent and relevant witness to state about the signs and gestures made in answers to the queries put to her.

108. Reverting to the facts of the present case, it is seen that after registration of the FIR the prosecution had availed services of P.W. 7, a teacher by profession who has done a special course for the hearing impaired, to interact with the children. P.W. 7 had spent several days with the children, interacted with them, and learnt their sign language which she has explained and interpreted in brief in her examination-in-chief.

109. P.W. 7 had assisted the Investigating Agency as well as the Judicial Magistrate to record their statements under sections 161 and 164 of the Cr.P.C. Hence, it would have been ideal or advisable to engage any other independent person as an interpreter. However, failure to do so would not ipso facto vitiate the trial unless it is shown that availing services of P.W. 7 as an interpreter has materially prejudiced the accused and has resulted in failure of justice. In Ganga Singh (supra) the Apex Court has held that:

"The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the Court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."

110. It is pertinent to note that, P.W. 7 is an independent as well as an expert witness. She had no personal interest in the matter and was administered oath. As stated earlier, she had spent several days with these girls to understand their sign language. She has in her deposition described some of the signs made by the girls. The learned Judge had also recorded the material signs/gestures made by P.W. 18 who was also administered oath. P.W. 18 was cross-examined by five Advocates who were representing the accused and none of the Advocates had made a grievance that the questions put by them to the witness were not being interpreted properly or that P.W. 7 was not interpreting the answers correctly. The accused had not questioned her fairness or competence to interpret the evidence of P.W. 18. Hence, we have no reason to believe that she was biased against or hostile towards the accused or that she was favourably inclined towards the prosecution.

111. The learned Counsels for the accused have made much ado of the statement recorded by the learned Judge that she herself being a daughter of deaf and dumb person, she could easily understand the sign language of P.W. 18. In our considered view, no much relevance can be given to the said observation as even otherwise the learned Judge has recorded that the gestures made by P.W. 18 were so perfect that even a layman could understand them. These observations were not disputed by any of the accused before the trial Court. None of the accused or their Advocates had raised a grievance that they were unable to understand the gestures made by P.W. 18 or that they were unable to comprehend what P.W. 18 was attempting to convey through such gestures. All these facts only go to prove that the gestures of P.W. 18 were very clear and could be understood by the accused as well as by the Judge even without the aid of the interpreter. Hence, taking assistance of P.W. 7 to interpret the evidence of P.W. 18 or not recording each and every gesture or sign would not vitiate her evidence. Considering all the above facts, in our considered view there is proper compliance of section 119 of Indian Evidence Act. The accused have not been able to demonstrate that any material prejudice has been caused to them because of the omission to record the sign language or for availing services of P.W. 7 to interpret the evidence. Hence there was no failure of justice and consequently irregularity, if any, either in investigation or trial would not vitiate the entire trial.

112. It is pertinent to note that notwithstanding her physical deficiencies, P.W. 18 has withstood incisive cross-examination. Her testimony amply proves that the accused No. 1 who was one of the Directors of Kalyani Sanstha, and his friend Mayekar (A3) had subjected her, P.W. 17 and the other mentally challenged inmates of Kalyani Sanstha including P.W. 17 to physical as well as sexual abuse. The evidence of this witness sufficiently corroborates the testimony of P.W. 17.

113. It is true that there are some inconsistencies, omissions in the evidence of P.Ws. 17 and 18. In (Mritunjoy Biswas v. Pranab @ Kuti Biswas & Anr.), MANU/SC/0812/2013 : A.I.R. 2013 S.C. 3334 the Apex Court has held as under:

"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be aground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. R is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission See (Leela Ram (dead) through Duli Chand v. State of Haryana and another), MANU/SC/1168/1999 : (1999)9 S.C.C. 525 (Rammi alias Rameshwar v. State of M.P.), MANU/SC/0596/1999 : 1999 B.C.I. (soft) 201 (S.C.) : (1999)8 S.C.C. 649 and (Shyamal Ghosh v. State of West Bengal), MANU/SC/0544/2012 : (2012)7 S.C.C. 646."

114. In appreciating evidence of these witnesses, one cannot lose sight that they are mentally/physically disabled. They were frightened and were under psychological pressure due to trauma and agony suffered at the hands of accused. Under these circumstances, these witnesses could not be expected to give an accurate resume of the events. The minor discrepancies or inconsistencies in her evidence are but natural and the same does not vitiate the trial.

115. It is also pertinent to note that P.Ws. 17 and 18 and the other inmates of Kalyani Sanstha were examined by P.Ws. 12 and 13. P.W. 12 Dr. Rajesh Sukhdev, was an associate Professor in forensic medicine whereas P.W. 13 was a gynecologist at KEM Hospital. Pursuant to the request made by the Investigating Officer P.W. 21 Dr. Rashmi Karandikar, vide letter dated 10th April, 2011 they had gone to Sub-District Hospital at Karjat and examined the victim girls including P.Ws. 17 and 18. P.W. 13 Padmaja Samant, had examined the said girls to ascertain whether they were sexual abused. Whereas P.W. 12 Dr. Rajesh Sukhdev and Dr. Harish Pathak had examined the girls to ascertain whether they had any physical injuries and also for the purpose of age determination. Dr. Ajita Nayak had conducted Psychiatric assessment of the victim girls. The evidence of P.Ws. 12 and 13 reveals that the inmates of Kalyani Sanstha were physically as well as sexually abused. They have produced Medical examination report at Exhs. 100 to 117 colly., which indicate that the said victim girls had following injuries:

116. The medical certificates at Exhs. 63 to 69 colly, as well as Exhs. 100 to 117 clearly indicates that many inmates of the sanstha, including P.W. 17 and some girls of tender age were subjected to severe physical and sexual abuse. The evidence indicates that genital examination of P.W. 18 was not done as she had not given history of genital contact for more than 30 days. It is to be noted that a medical witness is called as an expert witness to assist the Court. He is not a witness of fact. He is expected and required to medically examine the victim and put forth before the Court all the material data collected in the course of examination so as to enable the Court to form its own opinion based on such data. In the instant case the victims being physically and mentally challenged orphans, who were under tremendous mental stress and trauma, the medical officer was expected to conduct a thorough medical examination and the decision whether to examine the victim or not should not have been based on the history given by the victim.

117. Be that as it may, the medical evidence is only a corroborative piece of evidence. In (Gangabhawani v. Rayapatti Venkat Reddi & Ors.), MANU/SC/0897/2013 : A.I.R. 2013 S.S. 3681 the Apex Court has held:

"Where the eye witnesses account is found credible and trustworthy, a medical opinion pointing to alternative possibilities, cannot be accepted as conclusive., The eye witnesses account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touch stone for the test of such credibility...

Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallized to the effect that though the ocular evidence of the witness has greater evidential value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibilities of the ocular evidence being true, the ocular evidence may be disbelieved.''

118. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape nor can it be construed as evidence of consent. Furthermore, to constitute the offence of rape it is not necessary that there should be complete penetration of penis. Partial penetration within the labia manjora or the vulva or pudenda with or without emission of semen constitutes an offence of rape. The testimony of PW 18 therefore cannot be rejected out right merely because she has not been examined by the doctor to ascertain whether she was sexually abused.

119. In the instant case, the medical evidence duly corroborates that P.W. 17 as well as many other inmates of Kalyani sanstha were sexually abused. These girls whose mental faculties were underdeveloped and some of whom were minors between age ground of 11-14 yrs could not have consented, as consent involves understanding of the effect of such consent. Similarly, a mere passive submission or helpless resignation either under duress or compulsion does not constitute consent. Hence the only irresistible conclusion is that these girls were sexually abused and raped.

120. It is to be noted that P.Ws. 17 and 18 and other victim girls were earlier the inmates of Anand Sanstha. These victims were transferred to Kalyani sanstha somewhere in the year 2009. The Investigating Officer P.W. 21 was questioned by the accused whether she had made any attempt to collect the medical reports of the victims before they were transferred to Kalyani Sanstha. P.W. 21 has stated that the medical records for the period from 2003 to 2008 were not available. She has further stated that she had not collected the medical report of the girls during the period between 2008 to 2011 as the doctor of the said sanstha who used to check the girls was not a gynecologist, but was an ayurvedic doctor. In the light of the said statement it is sought to be insinuated that the victims could have been subjected to physical and sexual abuse before they were transferred to Kalyani Sanstha. It was also suggested to P.W. 21 that she had prepared false statements of the victims as per the directions of the High Court and that she had implicated the accused in a false case under pressure of the High Court. Needless to state that P.W. 21 has denied both these suggestions.

121. It may be mentioned that P.W. 17 and P.W. 18 have not made any accusations against the directors or employees of Anand Sanstha but have made specific allegations of sexual abuse against the accused No. 1 and accused No. 3 even though there was no reasons for these girls to make such serious allegations against these accused. Furthermore, the accused has not brought on record either through cross-examination or in his statement under section 313 of Cr.P.C. that the victims had any reason to make false allegations against him.

122. It is to be borne in mind that these children were abandoned by their families and shunned by the society. The accused No. 1 who was a Director of Kalyani Santsha, an orphanage for physically and mentally challenged girls portrayed himself to be a saviour, protector and guardian of such girls. The girls were totally dependent on him for food, clothing, shelter and the other basic necessities for survival. They had nowhere to go and no one to confide in or complain to and had to accept the situation as part of their life, by suppressing their feelings, emotions and anger. It was only after the committee appointed by this Court took the girls into confidence and encouraged them to give vent to their feelings that they expressed their fear, shame and anger as it is evident from the testimony of Dr. Harish Shetty. Despite such adversities these girls have named the accused Nos. 1 and 3 as the perpetrator of the crime. Hence non production of medical reports does not affect credibility of these witnesses as we have no reason to doubt their evidence.

123. It is also pertinent to note that the committee members as well as the interpreter had no animus against the accused. Hence there is no merit in the contention that the witnesses had been tutored to depose against the accused. The suggestion to P.W. 21 that she had recorded false statements of the victims and falsely implicated the accused as per the directions and under the pressure of this Court does not merit any consideration and only shows the shallow nature of the defence.

124. It is true that the prosecution has not examined the other inmates of the sanstha. However, the same is not fatal as most of these girls being mentally challenged were not competent witnesses. It is well settled that the prosecutrix is not an accomplice and conviction can be safely recorded on uncorroborated testimony of the prosecutrix unless the testimony of the prosecutrix suffers from basic infirmity and the probability factor renders it unworthy of credence and there are compelling reasons for seeking corroboration.

125. In the case of (Kamalantha & Ors. v. State of Tamil Nadu), MANU/SC/0259/2005 : (2005)5 S.C.C. 194 the Apex Court has held that "The prosecutrix is not an accomplice, The evidence of the victim of sexual assault, if it inspires confidence can be founded on her testimony alone unless there are compelling reasons for seeking corroboration. Her evidence is of more relevance than that of a injured witness. In the case of sexual assault corroboration as a condition for judicial reliance is not a requirement of law, but a guidance of prudence".

126. In (Bhupindra Sharma v. State of Himachal Pradesh), MANU/SC/0825/2003 : A.I.R. 2003 S.C. 4684 the Apex Court has reiterated that "the necessity of corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her chain of rape will not be believed unless it is corroborated in the material particulars as in the case of an accomplice to crime".

127. In the instant case the evidence of the P.W. 18, which finds sufficient corroboration on material particulars from the evidence of P.W. 17, amply proves that the accused Nos. 1 and 3 had sexually abused them and the other mentally challenged inmates of Kalyani Sanstha, a children home set up for reception and care of orphan and disabled children. The medical evidence as well as the evidence of P.W. 3, P.W. 5 and P.W. 11 corroborates that these victims were physically and sexually abused and were undergoing emotional and psychological trauma.

128. It will not be out of place to mention here that CWC is a primary body for addressing needs of children in need of care and protection. The CWC is required to play a role of watchdog at the district level and ensure that standards of care are maintained and the incidents of exploitation and abuse in all child care institutions are addressed. In the instant case P.W. 1 Neela Tulpule, the Chairperson of CWC Raigad has stated that the girls in Kalyani sanstha were earlier in Anand Manila Bal Kalyan Shikshan and Punarvasan sanstha which was housed in the same premises, and that the said girls were transferred to kalyani sanstha sometime in the year 2010. She has denied that it is mandatory for CWC to call the particulars and obtain the photographs of the children above two years at the time of transfer from one sanstha to another. She has submitted that she has not called for the record about the family of any of the child in the child welfare sanstha situated at Raigad District. She has admitted that she has not called for the records about the family background of the girls who are in Kalyani Sanstha. She has stated that she does not know the date or the month when Kalyani sanstha got approval or recognition from the Government of Maharashtra. She has stated that she has got the approval sometime in the year 2009 or 2010. She has stated that she does not have any medical reports of the girls who were sent to Kalyani sanstha. She has admitted that she had not requested the medical officer to examine the girls before they were transferred to Kalyani sanstha. She has stated that she herself and one Smita Kale of CWC had signed the transfer order transferring the girls to Kalyani sanstha.

129. P.W. 1 has claimed that the members of CWC used to visit the sanstha and supervise hygiene, food, diet, health care etc. provided by the sanstha. She has deposed that from the period 2009 to 2010 she had visited the sanstha about 4-6 times and on every such visit they used to interact with the children about their welfare and health. She has further deposed that the committee had not found any fault or irregularity in respect of hygiene, food, diet etc provided to the children by Kalyani sanstha. She has admitted that she has never made any periodical review in respect of the physical and mental health of the children in the said institution. She has stated that she did not notice any irregularity, discrepancy or sexual assault on the inmates of the said sanstha and that none of the members had doubted that the inmates were exploited or sexually abused.

130. It is however to be noted that the evidence of P.W. 3 and P.W. 5, the members of the Committee appointed by the High Court vis-à-vis the report at Exh. 58 reveals that the girls were in Anand Sanstha from 2003 to 2007 and that seven girls had died during this period. The evidence of these witnesses vis-à-vis the report indicates that CWC was never involved in any matter of the home related to the death of the children. The girls from Anand Sanstha were transferred to Kalyani sanstha in the year 2007, whereas Kalyani sanstha, a family run trust was registered only in the year 2009. There was no registration for the period between 2007 to 2009. The evidence of these witnesses vis-à-vis the report further reveals that there was total lack of proper infrastructure and basic amenities in kalyani sanstha The report further indicates that though the CWC members had stated that they had visited Kalyani sanstha atleast four times, the committee could find only one entry for the year 2009. The report further indicates that the chairperson was not regular in attending the meetings. The above facts clearly indicate that the CWC members have not acted in the best interest of the child. The insensitive role of CWC in adopting 1 see no wrong and hear no wrong.' greatly perturbs our judicial conscience. Had they performed their duties sincerely and with sensitivity the truth would have been unearthed and these young helpless vulnerable victims would not have been physically, sexually and emotionally traumatized. However, considering the fact that the PIL is still pending we do not intend to delve into the said matter any further.

131. Reverting to the charges levelled against the accused, the evidence adduced by the prosecution therefore sufficiently proves that the accused Nos. 1 and 3 were the perpetrators of the crime. The accused No. 1, who was one of the directors of the sanstha had total dominion over these girls. The evidence of P.Ws. 17 and 18 amply proves that the accused No. 1 took advantage of his position and not only committed rape on these vulnerable girls and further would put his penis in the mouth of P.W. 17 and other victim girls and compel them to have oral sex. The prosecution has thus proved that the accused No. 1 is guilty of having carnal sex against the order of nature, sexual abuse. The prosecution has therefore established beyond reasonable doubt the guilt of the accused No. 1 for offence under sections 376(2) (c) and 377 of Indian Penal Code.

132. The prosecution has also established beyond reasonable doubt that the accused No. 1 had called his friend Mayekar (A3) to the sanstha and that both of them had consumed alcohol and had also compelled the victims to consume alcohol and thereafter had sexually abused them. The evidence adduced by the prosecution therefore proves that both these accused had raped P.Ws. 17 and 18 in furtherance of their common intention and had thereby committed gang rape which is punishable under section 376(2) (g) of Indian Penal Code and section 25 of the Juvenile Justice Act.

133. The evidence of P.Ws. 18 and P.W. 17 also proves that the accused No. 2 had outraged their modesty by kissing them and sometimes by making them lie by his side. The prosecution has thus established beyond reasonable doubt the guilt of the accused No. 2 for offence punishable under Section 354 of the Indian Penal Code.

134. The evidence of P.Ws. 17 and 18 proves that the accused No. 6 and accused No. 10 used to physically abuse them. Their evidence amply proves that the accused No. 1 used to burn them with cigarettes butts. P.W. 17 has also deposed that they were scared of accused Nos. 6 as she used to give them burns by hot pan. The evidence of P.W. 18 also indicates that the accused No. 1 had banged her head on the wall, there is also evidence to show that the accused No. 10 had also inflicted injuries on these victims. The medical evidence proves that P.W. 17 was physically abused. There were scars caused by cigarette bums, blunt object, etc. The medical evidence also proves that P.W. 18 had a scar on the right side forehead, scars on left forearm caused possibly due to cigarette burns. The medical evidence further proves that the other inmates also had several injuries all over their body including cigarette burns on genital area and inner aspect of thighs, breast etc. The evidence of P.Ws. 17 and 18 coupled with the medical evidence therefore proves beyond reasonable doubt that the accused Nos. 1, 6 and 10 had voluntarily caused hurt to these victim girls by means of cigarette burns, hot spoons, tava etc which constitutes offence under section 324 of the Indian Penal Code and 23 of Juvenile Justice Act, 2000.

135. It is pertinent to note that the learned trial Judge has also held the accused Nos. 1 and 6 guilty of offence punishable under section 307 of the Indian Penal Code. Having analysed the entire material on record, in our considered view, there is no evidence to indicate that the accused Nos. 1 and 6 had attempted to cause death of any of the victims by committing any such act or by inflicting any such injury with an intention or knowledge that if not prevented or intercepted, it would be sufficient to cause death. Hence the conviction of the accused Nos. 1 and 6 for the offence under section 307 of the Indian Penal Code cannot be sustained. Similarly, there is no evidence to hold the accused No. 1 guilty of offence under section 506(ii) of Indian Penal Code.

136. The learned Judge has also held Prakash Vithal Khadke guilty of offence under section 376 of Indian Penal Code. It is to be noted that P.W. 18 had stated that she had seen the accused No. 4 having sexual intercourse with SK, one of the inmates of Kalyani sanstha. The prosecution has not examined the said victim girls. Besides P.W. 18 had not stated the said fact in her statement under section 161 and 164 of Cr.P.C. There is no other cogent and conclusive evidence to prove the guilty of the accused No. 4 for offence under section 376 of Indian Penal Code.

137. The learned trial Judge has also held the accused Nos. 6 and 10 guilty of offences under section 376(2)(c), 376(2)(g) and 377 with aid of section 109 of IPC.

"Section 109 IPC provides that whoever abets any offence, shall, if the act abetted is committed in consequence of the abetment, and no express provision is made for the punishment of such abetment, be punished with the punishment provided for the main offence. 14. Section 107 IPC defines "abetment of a thing" as under:

"107. Abetment of a thing.--A person abets the doing of a thing, who-- First -- Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly -- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."

138. In (Kulwant Singh @ Kulbansh Singh v. State of Bihar), MANU/SC/7839/2007 : (2007)15 S.C.C. 670, the Apex Court has held as under:

"Where a person aids and abets the perpetrator of a crime at the very time the crime is committed, he is a principal of the second degree and section 109 applies. But mere failure to prevent the commission of an offence is not by itself an abetment of that offence. Considering the definition in section 109 strictly, the instigation must have reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. R is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Section 109 is attracted even if the abettor is not present when the offence abetted is committed provided that he had instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to the conspiracy some act or illegal omission takes place or has intentionally induced the commission of an offence by an act or illegal omission in the absence of direct involvement, conviction for abetment is not sustainable.''

139. Reverting to the facts of the present case, the accused 6 and 10 are the two ladies who were employed in Kalyani sanstha. They were in no manner involved in aiding, abetting or instigating the accused Nos. 1 and 3 to commit the offence of rape. There is no evidence on record to indicate that they had either given physical assistance or verbal encouragement to the accused Nos. 1 and 3 or that they had in manner facilitated the commission of crime. The conviction of these accused for offence under section 376(2)(c), 376(2)(g) and 377 r/w. 109 of IPC cannot be sustained.

140. Now coming to the appeal against acquittal and power of the Appellate Court to re-appreciate, review or reconsider evidence and interfere with the order of acquittal, the Apex Court in (Mrinaldas v. State of Tripura.), (2011)9 S.C.C. 479 has reiterated the principles as under:

"It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an Appellate Court, being the final Court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the Appellate Court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the Competent Court. If two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal. There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found and to come to its own conclusion The Appellate Court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable'', it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc. the Appellate Court is competent to reverse the decision of the trial Court depending on the materials placed."

141. Having analysed, re-appreciated and reconsidered the entire evidence, particularly the evidence of P.W. 18 we are of the view that there is absolutely no evidence to prove that the accused No. 2 Nanabhau, accused No. 5 Kalyani and accused No. 9 Surekha have committed offence of rape or abetment of rape. There is also no evidence on record to prove that the accused who have been acquitted by the learned Sessions Judge were involved in committing offences for which they were charged with and have been acquitted. Hence we are not inclined to interfere with the order of acquittal. The appeal filed by the State has no merits and hence the same is liable to be dismissed. Under the circumstances and in view of the discussion supra, we pass the following order:

"a) The Reference made by the learned Addl. Sessions Judge, Gr. Bombay, at Mumbai is rejected.

b) The Criminal Appeal No. 426 of 2013 filed by the accused No. 1 Ramchandra Sambhaji Karanjule is partly allowed.

i) The conviction and sentence under sections 302, 307 and 506(ii) of Indian Penal Code is hereby set aside.

ii) The conviction under section 376(2)(c) Indian Penal Code is maintained and the sentence is reduced to rigorous imprisonment for 10 years with fine of Rs. 50,000/- i.d. to undergo R.I. for two years.

iii) The conviction under section 376(2)(g) Indian Penal Code is maintained and the sentence is reduced to rigorous imprisonment for 10 years with fine of Rs. 50,000/- i.d. to undergo R.I. for two years.

iv) The conviction and sentence under sections 377 and 324 of Indian Penal Code and sections 23 and 25 of the Juvenile Justice (Care and Protection of Children) Act 2000 is maintained.

v) The substantive sentence of imprisonment shall run concurrently. The period of detention undergone shall be set off under section 428 of Cr.P.C.

c) The Criminal Appeal No. 416 of 2013 filed by the accused No. 4 Prakash Vitthal Khadke is allowed.

i) Conviction and sentence under section 376 of Indian Penal Code is hereby set aside.

d) The Criminal Appeal No. 452 of 2013 filed by accused No. 2 Khandu Nanji Kasbe @ Deepak Mayekar is partly allowed.

i) Conviction under section 376(2) (g) of is maintained. Sentence reduced to rigorous imprisonment for 10 years with fine of Rs. 50000/- i.d. S.I. for two years.

ii) Conviction and sentence under section 25 of Juvenile Justice (Care and Protection of Children) Act 2000 is maintained.

iii) The substantive sentence of imprisonment shall run concurrently. The period of detention undergone shall be set off under section 428 of Cr.P.C.

e) The Criminal Appeal No. 508 of 2013 filed by accused No. 6 Sonali Mohan Badade is partly allowed.

i) Conviction and sentence under sections 307 r/w. 34, 376(2)(c), 376(2)(g) and 377 r/w. 109 of Indian Penal Code is hereby set aside.

ii) Conviction and sentence under section 324 of Indian Penal Code and 23 of Juvenile Justice (Care and Protection of Children) Act 2000 is maintained.

iii) The substantive sentence of imprisonment shall run concurrently. The period of detention undergone shall be set off under section 428 of Cr.P.C.

f) The Criminal Appeal No. 528 of 2013 filed by accused No. 2 Nanabhau Laxman Karanjule is hereby dismissed.

i) Conviction and sentence under section 354 of Indian Penal Code is hereby maintained.

g) The Criminal Appeal No. 600 of 2013 filed by the accused No. 10 Parvati Shamsunder Mavale is partly allowed.

i) Conviction and sentence for offence under sections 304(ii), 376, 376(23)(c), 376(2)(g) r/w. 109 of Indian Penal Code is hereby set aside.

ii) Conviction and sentence for offence punishable under section 324 of Indian Penal Code and 23 of Juvenile Justice (Care and Protection of Children) Act 2000 is maintained.

iii) The substantive sentence of imprisonment shall run concurrently. The period of detention undergone shall be set off under section 428 of Cr.P.C.

h) The Criminal Appeal No. 896 of 2014 filed by the State is hereby dismissed.

Print Page