The objects of cross-examination are to impeach the accuracy, credibility, and general value of the evidence given in-chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. Section 138 does not mandate that cross-examination should be confined to the facts spoken during the examination-in-chief. The parties have liberty to elicit anything from the witness as long as it relates to the relevant facts. Irrelevant topics sometimes pursued 23 apeal-485-06-i
at great length, and persistence shown in going over the same ground again and again in the hope of making the witness to give discrepant statements must not be permitted. Control over the court proceedings by the Presiding Officer in such a situation is expected.
1 Both these appeals arise out of the judgment and order of conviction and sentence dated 3/4/2006 passed by the Additional Sessions Judge, Greater Mumbai, in Sessions Case No.563 of 2005, whereby the accused was convicted for the offences punishable under sections 342, 506(II), 376(2)(a) & (b) of the Indian Penal Code and was sentenced as under: (i) for the offence punishable under section 342 of I.P.C. he was sentenced to suffer R.I. for 3 months and to pay fine of Rs.500/- i.d. to suffer imprisonment for 15 days; (ii) for the offence punishable under section 506(II) of I.P.C. he was sentenced to suffer R.I. for 6 months and to pay fine of Rs.1000/- i.d. to suffer further imprisonment for 30 3 apeal-485-06-i
days; (iii) for the offence punishable under section 376(2)(a) and (b) of I.P.C., he was sentenced to suffer R.I. for a period of 12 years and to pay fine of Rs. 25,000/- i.d. to suffer further imprisonment for a period of one year; however, he was acquitted of the charge of an offence punishable under section 85(i) (b) of Bombay Prohibition Act, 1949.
2 Aggrieved by the judgment and order of conviction and sentence, the accused-appellant has filed criminal appeal no. 485 of 2006, and aggrieved by the judgment of acquittal of the accused under section 85(i)(b) of the Bombay Prohibition Act, and for enhancement of sentence imposed under section 376(2)(a) and (b) of I.P.C., the State has filed Criminal appeal no.512 of 2006.
3 Briefly stated, the prosecution case as disclosed from the FIR and unfolded during the trial is as under:
4 apeal-485-06-i
The prosecutrix aged about 17 years is a college going girl, who had appeared for 11th standard examination in the academic year ending March/April, 2004. During vacation she joined first aid training course conducted by the Civil Defence, having their head quarters at Dhobi-Talav, Mumbai. The training programme started with effect from 14/4/2004. The incident occurred on 21/4/2005. On this day, she alongwith other boys and girls attended training session, which concluded at about 12.30 hours. After having lunch, some of them decided to visit Marine Drive promenade. At about 13.45 hours they reached Marine Drive station and from there they walked upto sea-shore and sat on the parapet wall facing the sea. This place is abutting the Princess Street flyover. The prosecutrix and her friend PW-2 Pramod were sitting holding hands on parapet wall. Under the Princess Street flyover there is a police chowky called as Meghdoot Police Chowky. It is 5 apeal-485-06-i
a portable structure admeasuring 6 ft. x 5 ft. and having hight of 8 to 9 ft. It is used as a halting point by the Beat police and even by security guards who are engaged for security duty in the Marine Drive area. The accused was a part of two motor cycle borne patrolling team known as Beat Marshals, deputed for patrolling the sea face promenade at Marine Drive. On the day of incident he alone was on duty. PW-3 Sumit is private security guard employed by private security agency to patrol the Marine Drive area. He saw the prosecutrix and PW-2 Pramod sitting hand in hand on parapet wall. He contacted the accused through his mobile. The accused through PW-3 Sumit summoned the prosecutrix and PW-2 Pramod to the police chowky. It was about 15.00 hours. Prosecutrix and PW-2 Pramod followed PW-3 Sumit to the police chowky where they met the accused. The other 4 boys and 4 girls also joined them. Alleging that they were involved in indecent 6 apeal-485-06-i
acts, the accused asked all others to go away except prosecutrix and PW-2 Pramod. The accused threatened them that he would charge them for the act of indecent behaviour in the public place and then demanded Rs.5,000/- from PW-2 Pramod. PW-2 Pramod did not have that much amount. The accused asked him to arrange for the amount and detained the prosecutrix.
4 The accused then closed the door of the police chowky, consumed liquor and despite resistance of the prosecutrix, committed rape on her thrice. After about an hour the prosecutrix could go out of the police chowky. The moment the prosecutrix came out of the police chowky, she saw her acquaintance Babloo(PW-5 Tiwari). The prosecutrix complained to PW-5 Tiwari that accused raped her. PW-5 got annoyed. He raised alarm which attracted passers-by. The media persons also arrived. At about 5.30 p.m. 7 apeal-485-06-i
the accused sent message to the control room. Two mobile vans arrived on the spot. The accused, prosecutrix and PW-5 Tiwari were brought to the Marine Drive Police Station.
5 The prosecutrix was questioned by the police officer. Her complaint was reduced into writing. On that basis offence bearing C.R. No.101/2005 under section 376(2)(a),(b), 342, 506(II), 323 of I.P.C. was registered. Immediately, the Investigating Officer visited police chowky. Spot panchanama was drawn. Photographs of the scene of occurrence were taken. Wrist watch, water bottle containing alcohol, were seized from the spot. On the same night clothes which were worn by the prosecutrix and the accused at the time of incident were seized under panchanama. Then, the prosecutrix and accused were sent for medical examination. On 21.4.2005 at 10.20 p.m. a team of three doctors including PW-16 8 apeal-485-06-i
Dr. Chavan who examined the prosecutrix. The accused was examined by PW-17 Dr.Bobade. 6 During investigation it was revealed that while threatening the prosecutrix and PW-2 Pramod, the accused had noted down their names and addresses on the note book supplied by PW-3 Sumit. This note book was seized from PW-3 Sumit. Mobile phone which was used by PW-3 Sumit to make call and mobile phone in possession of the accused on which the call of PW-3 was received were attached. It was revealed that on 18/4/2005, the accused had purchased mobile in the name of PW-10 P.C. Tambe. In order to fix authorship of the writing on the notebook, the specimen writing of the accused was collected. The questioned writing and the specimen writing were forwarded to handwriting expert on 13/5/2005. On 23.4.2005 the articles like clothes of accused and the prosecutrix, various swabs collected 9 apeal-485-06-i
by the medical officer during examination of the prosecutrix and the accused were sent to the chemical analyser.
7 After investigation was over, charge-sheet was submitted in the court of Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The learned Metropolitan Magistrate committed the case to the Court of Sessions, Mumbai.
8 The learned Additional Sessions Judge on the basis of allegations made in the chargesheet framed charges against the accused for the offences punishable under sections 342, 506(II), 376(2)(a) and (b) of I.P.C. and 85(i)(b) of the Bombay Prohibition Act, 1949. The accused pleaded not guilty to the charge. 9 In order to prove the charges, the prosecution examined 27 witnesses and placed reliance upon the various documentary evidence including opinion of 10 apeal-485-06-i
the handwriting expert. The accused did not examine any witness in his defence. His defence is that while on patrolling duty he spotted the prosecutrix and a boy in a half nude position. They were sitting in the parking area in between two vehicles. When he scolded them as to why they were indulging in indecent activities in public place, the boy started arguing with him and even threatened him to teach a lesson. The said boy then started shouting at him. When the accused warned the said boy that he would be informing their parents, the latter got annoyed and started collecting people. They refused to accompany him to the police station. Therefore, he made phone call at about 5 p.m. seeking police help. Meanwhile, people gathered. He again made second call. The said boy instigated the persons gathered there against him. Then the police van arrived. To the police officer, he explained as to what really had happened. Media persons came there and started 11 apeal-485-06-i
taking photographs. Thereafter, he was carried to the police station and mercilessly beaten. In a nut-shell he stated that because of public out-cry and media hype he was falsely involved in this case. 10 Mr. Wagh, the learned counsel for the accused took us through the entire evidence produced before the trial court. He assailed the judgment and order of conviction and sentence on the following grounds: The learned Additional Sessions Judge committed serious error in holding the accused guilty of the offence of rape and other charges. The testimony of the prosecutrix is full of infirmities and discrepancies. It is not supported by the medical evidence. Absence of injuries on the private parts and her person speaks volumes about her veracity. At the instance of police number of improvements have been made in the prosecution case. The facts like recording of addresses in the note book, the 12 apeal-485-06-i
accused demanding a bribe of Rs.5,000/-, PW-2 Pramod leaving the spot to collect bribe amount, did not find place in the first information report. Finding that no incriminating evidence could be collected during the medical examination, the prosecution deliberately put-forth story of the accused using condom. All the findings of the chemical analyzer are exculpatory and this shows innocence of the accused. The learned Additional Sessions Judge ignored such serious flaws and proceeded to rely upon testimony of the prosecutrix as a gospel truth. The evidence of PW-2 Pramod and PW-5 Tiwari ought not to have been relied upon by the learned Additional Sessions Judge. PW-5 Tiwari is a chance witness and absolutely there was no reason for him to be on the spot at the time of alleged occurrence. It was the accused who informed the police control room when PW-2 Pramod started arguing with him and started collecting people. Counsel went to the extent of contending that 13 apeal-485-06-i
because of undue publicity given to this incident in the newspaper and the questions having been raised in the State Assembly, he was deprived of a fair trial. 11 He further submits that alleged seizure of water bottle smelling of alcohol and the wrist watch from the scene of occurrence is false and ought not to have been relied upon. The writing on the note book(Art.4) are not that of the accused. As such, the learned Additional Sessions Judge committed error in relying upon the same. Evidence adduced by the prosecution, to attribute ownership of the mobile phone, being untrustworthy should have been discarded by the learned Additional Sessions Judge. The story of the prosecution as a whole is full of infirmities, discrepancies, improbabilities in the sense that in the broad day light, when the prosecutrix was accompanied by her friends, it was humanly impossible for the accused to sexually assault her. 14 apeal-485-06-i
There has been delay in recording of the statements of the witnesses. He further argued that the story narrated by the prosecutrix that accused by using his one hand gaged her mouth and by another hand undressed her and also undressed himself etc. is inherently improbable. This shatters the entire prosecution case and therefore, it should have been disbelieved by the learned Additional Sessions Judge. 12 In a nut shell, it is the contention of the learned counsel for the accused that the conviction recorded by the learned Additional Sessions Judge cannot stand to the test of probability and needs to be quashed. 13 The learned APP supported the judgment and order of conviction and sentence. It is his contention that there exists overwhelming evidence to substantiate the charges leveled against the accused. Evidence of the prosecutrix is corroborated by other 15 apeal-485-06-i
evidence in the material particulars. The prosecutrix who is a girl of less than 17 years had accompanied her friend to Marine Drive sea-face and was sitting on the parapet wall. At the relevant time, the accused being assigned with the duty as a Beat Marshal took undue advantage of helpless-innocent girl. There is immediate lodging of FIR. The scene of occurrence was immediately visited. Statements of the witnesses were also recorded promptly. He further submits that the medical evidence supports version of the prosecutrix that she was subjected to sexual assault.
14 In order to support the appeal filed by the State, he submits that the learned Additional Sessions judge was not justified in taking lenient view by imposing sentence of 12 years. Considering the gravity and nature of offence, the learned Additional Sessions Judge ought to have sentenced the accused to suffer 16 apeal-485-06-i
imprisonment for life. Lastly, it is contended by the learned APP that the Additional Sessions Judge committed error in acquitting the accused of the offence punishable under section 85(i)(a) of the Bombay Prohibition, Act despite there being sufficient evidence available on record.
15 In reply, the learned counsel for the accused submits that the accused is in fact innocent. The quantum of sentence is a matter of discretion of the trial Court. There is absolutely nothing to show that this discretion has been wrongly exercised by the learned trial Court. He therefore, submits that the appeal filed by the State may be dismissed. As regards acquittal of the accused of the offence punishable under section 85(i)(a) and (b) Bombay Prohibition Act, it is submitted that there exists no material to arrive at such a conclusion and therefore, the learned Additional Sessions Judge was right in 17 apeal-485-06-i
holding the accused not guilty of such offence. 16 Having considered the rival submissions, we shall firstly examine the evidence of the prosecutrix. Her testimony shows that she joined the Civil Defence course which commenced on 14/4/2004. She alongwith 12 boys and 8 girls were undergoing the first aid training programme. On the day of incident all the trainees were relieved at 12.30 noon. They had a lunch in the canteen in Aykar Bhavan. Then group of 5 boys and 5 girls decided to visit Marine Drive. At about 1.45 p.m., they reached Marine Drive and sat on the parapet wall in groups. The prosecutrix and PW-2 Pramod were sitting hand in hand. It is in her evidence that at about 2.15 p.m. a watchman(PW-3 Sumit) approached them. He started questioning them about their alleged indecent behaviour. She and PW-2 Pramod protested. PW-3 Sumit asked them to accompany him to the police 18 apeal-485-06-i
chowky. At a distance of about 100-150 ft from the place where they were sitting, there is Meghdoot Police Chowky. The accused was sitting in the police chowky. PW-2 Pramod pleaded with the accused that they had not done anything wrong. Then, the accused threatened them that he would be charging them. Other boys and girls also came to police chowky. The accused asked all of them to leave the police chowky, else he would put PW-2 Pramod under arrest. Alarmed by such threats, all left police chowky except the prosecutrix, PW-2 Pramod and PW-3 Sumit. She further deposed that the accused asked for a notebook from PW-3 Sumit. Then he started recording her and PW-2 Pramod's name and address in the said note book. He then left the police chowky. The note book and writing were shown to the prosecutrix, which she identified and marked Exh. 12. After PW-3 Sumit left, the accused demanded Rs. 5,000/- from PW-2 Pramod. They had no money 19 apeal-485-06-i
except Rs.100/-. When PW-2 offered him whatever he had i.e. Rs. 100/-, the accused was annoyed saying that he was not a beggar. The accused asked PW-2 Pramod to arrange the amount within two hours and till that time the prosecutrix would wait in the police station. After PW-2 Pramod left the police chowky, despite her repeated requests to allow her to leave, the accused made her to sit in the police chowky. Thereafter, the accused left the police chowky just for a moment and came back and then he consumed liquor, which was in the water bottle. He latched the door from inside and sat near her. Then he kissed her. Despite her resistance he continued his advances towards her. She was slapped and threatened that she would be killed if she makes a noise. It is her version that the accused undressed her and undressed himself and then slept over her. Thrice he rapped her. She also deposed about the accused using condom. It is her version that she was 20 apeal-485-06-i
stunned, had become nervous, started weeping, closed her eyes and then fell semi-unconscious. While the accused was removing her nicker, it was torn and the strap of wrist watch was broken. After 10 to 15 minutes of this, she put on her clothes and came out. She saw her friend,PW-5 Tiwari(Babloo). She started screaming and divulged him the incident. PW-5(Babloo) was annoyed. He also started abusing the accused. Passers-by gathered. Police van arrived. In one police van she and PW-5 (Babloo) were taken to Marine Drive Police Station. On reaching there she lodged first information report at about 18.25 p.m., which was recorded by PW- API Tumbada.
17 The prosecutrix was shown clothes like black T-shirt, gray pant, nicker and slip which are articles 15 to 18. She identified them. She further identified the wrist watch Article 11, which was recovered from the 21 apeal-485-06-i
scene of occurrence.
18 The prosecutrix was required to face volley of questions during her stressful cross-examination, which consumed about 7 working days. The questions were put to her about location of the spot, the distance between local railway station and the spot, width of the road, how she crossed the road, size of the police chowky, number of windows to the police chowky and her home condition like vocation of her father, details about her joining Civil Defence course, the nature of training imparted in the Civil Defence course, period of acquaintance with PW-2 Pramod, number of trainees in Civil Defence course, their names, assignments she got from time to time as Civil Defence cadet, location of chowpaty, her visit to canteen for taking lunch and many more. This seems to be reason for the prosecutrix being required to stand in the witness box over a period of 8 days. 22 apeal-485-06-i
The prosecutrix was questioned on the issue like her date of birth. She had stated to police her date of birth as 20/8/1988 instead of 23/8/1988. Obviously, this is unnecessary as it is not the prosecution case that she was below 16 years of age and her consent had become immaterial. This reminds us of the provisions of section 138 of the Evidence Act, which gives defence right to cross-examine the witness. The objects of cross-examination are to impeach the accuracy, credibility, and general value of the evidence given in-chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. Section 138 does not mandate that cross-examination should be confined to the facts spoken during the examination-in-chief. The parties have liberty to elicit anything from the witness as long as it relates to the relevant facts. Irrelevant topics sometimes pursued 23 apeal-485-06-i
at great length, and persistence shown in going over the same ground again and again in the hope of making the witness to give discrepant statements must not be permitted. Control over the court proceedings by the Presiding Officer in such a situation is expected. Be that as it may. 19 The material omissions which the defence could elicit from this witness are : (i) the accused asking PW-3 Sumit to hand over the notebook and the accused writing therein names and addresses of the prosecutrix and the PW-2 Pramod; (ii) the accused demanding Rs.5,000/- and then PW-2 Promod leaving the police chowky to arrange for the same; (iii) accused wearing condom before committing rape on her. We are in agreement with the learned counsel for the defence that these are material omissions and for that necessary explanation must come from the prosecution. This makes us to scrutinize the 24 apeal-485-06-i
testimony of the prosecutrix closely and cautiously. 20 Before we discuss the aspect of these omissions and deliberate upon the explanation forthcoming from the prosecution, we shall discuss the medical evidence. On 21/4/2005 at about 10.20 p.m. medical examination of prosecutrix was conducted by the team of 3 doctors including PW-16 Dr. Chavan. Findings recorded by them at Exh.62 are reproduced below:
"IV. Physical Examination :
Built/Nutrition : Averagely built and poorly nourished.
Mental status: Sound, well oriented in time, space and person.
Gait : normal. Height:------- Weight:------- Teeth : Normal, not broken, space behind second molar ... Present/Absent.
V. Injuries over her private parts/-
breasts :
No external signs of injury over private parts or breast.
VI. Secondary sex characters :
Breasts: Well developed, Tannes stg. IV. Secretions: Nil.
Axillary Hair : Present.
Public Hair : Present.
Matting of public hair for F.S.I.Examination: 25 apeal-485-06-i
present/Absent/Preserved/Not preserved. VII. Abdominal Examination including
Anus: No tenderness over abdomen, no
guarding or rigidity no signs of injury. VIII. Local examination (Private Parts) : (a) Labia Majoria : Normal
(b) Labia Minora Normal.
(c) Clitoris : Normal.
(d) Vaginal Mucosa : mildly inflamed.
(e) Type of Hymen : patulous, Hymen :
Intact/Torn.
Position of Tears : No tears O'Clock. Age of Tears: -
Hymenal Orifice : Admits: One/Two
fingers.
(f) Any Injury to the Perineum : Nil.
(g) Any foreign body : Nil.
(h) Signs of STD : Nil.
(i) Discharge in any : (1) Vaginal smear: Swab made/Not made
(2) Blood for grouping : Collected/not collected.
Swabs collected as specimen (1) Labial (2)Urethral (3) Vaginal (4) cervical (5) Anal (6) Buccal (7) nail chippings (8) public hair (9) blood in S.T.D. bulb (10) Cervical smear. In response to the letter from the Investigating Officer, on 25/4/2005, the said team of doctors informed the Superintendent of J.J.Hospital about their opinion. The relevant extract from the letter at Exh. 63 is as under:
26 apeal-485-06-i
"This is with reference to above mentioned letters regarding rape victim Dhara Vinod Tank. Based on the victims' history &
physical examination, there is a possibility of sexual assault/intercourse.
Final opinion will be given on the basis of chemical analysis report."
On 25/4/2005 final opinion was reserved impending receipt of the report of the chemical analyser. After receipt of the same and on 17/6/2005, the final opinion was recorded at Exh. 64. It is as under : "With reference to above mentioned subject, after (going sic) through all above mentioned reports, we are of the opinion that there may be possibility of incomplete sexual intercourse."
21 Initial cross-examination of PW-16 Dr. Chavan is centered around format to be used while recording findings, presence of lady police officers and obtaining consent of the victim and conversation with the victim. In cross-examination, PW-16 gave some far reaching admissions, which we would like to reproduce hereunder:
27 apeal-485-06-i
"I admit that in column No.VIII(e) the hymen intact/torn, provides further dotted space, to write by the medical officer whether it is intact or torn. We are required to write age of tears in the column provided. I can not assign any reason, why in the column of age of tears no details are filled in by me(in Exh-62). I admit in Exh.-62 I have not stated anywhere, the hymen is elastic type. It is not true to suggest that I have written no tears in the column of position of tears, because hymen was not torn. I admit, in Exh-62 there is nothing to show, hymen was recently torn, it is not so mentioned." In further part of his cross-examination he states thus:
"27. Generally, absence of external injury over private part, no injuries on labia majora, labia minora, or absence of any seminal fluid in the vaginal swabs,
collectively will indicate that there is no sexual assault.
28. It is correct, generally if a minor girl or a virgin, is sexually assaulted she will have injuries on labia majora, or labia minora or on her private parts."
Then he denied the suggestion that the report of chemical analyzer in respect of vaginal swab or pubic matting and absence of injuries on labia majora or labia minora or absence of seminal fluid is suggestive 28 apeal-485-06-i
of the fact that there was no sexual assault. 22 The learned counsel for the accused is right in contending that the evidence of PW-16 Dr. Chavan that hymen was recently torn is after-thought. He is fortified in his submission as in the column provided for writing age of tears in the medical examination certificate Exh.-62, nothing was mentioned. Attention of the witness was drawn to this and he admitted having kept the said column blank. However, suggestion given to this witness that there was no tear of hymen and which is denied by the witness, has no foundation. While issuing the certificate printed word "Torn" was tick marked. In the evidence of this witness as well as in Exh.62, it has been categorically mentioned that hymen orifice admitted one finger. By inviting our attention to the evidence of the prosecutrix wherein she stated that she was raped thrice and the surface on which she was made 29 apeal-485-06-i
to lie was hard, it is contended by the learned counsel for the accused that this makes entire prosecution case improbable. According to him, it is difficult to believe that after having raped thrice and that too forcibly, absence of injury on her person and private parts is impossible and in turn this probablises the defence that nothing, of the sort as alleged by the prosecution, had occurred.
23 It is appropriate in this context to reproduce the opinion expressed by Dr. Mody in Medical Jurisprudence and Toxicology(22nd Edition) at page 503 about possible findings during examination of raped victim, particularly virgins, which reads thus: "In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small 30 apeal-485-06-i
tags of tissue."
24 The final opinion dated 17/6/2005 recorded by the team of 3 doctors indicates that there may be possibility of incomplete sexual intercourse is consistent with the above observations of Dr. Mody. It is suggestive of the fact that there was no complete penetration and therefore, hymen orifice only admitted one finger and there was no laceration of the hymen.
25 Now we shall proceed to discuss the evidence relating to medical examination of the accused. On 21.04.2005 at about 8.00 p.m. the accused was referred to Nagpada Police Hospital for his medical examination under request letter Exh. 68. PW-17 Dr. Bobade examined him at about 8.45 p.m.. Dr. Bobade obtained his written consent before he started examining him. On examination, the findings recorded by him are thus :
31 apeal-485-06-i
i) Smegma : Yellowish sticky secretion noticed behind glans in coronal sulcus which is collected by swab and sent to CA for vaginal epithelial cells.
g) Injuries on glans penis :- Epithelial layer behind the glans penis seen to be denuded all around the coronal sulcus. Red in colour. Tenderness present. Injury caused due to stretching and friction and looks fresh. 26 Blood sample was also collected. The report is at Exh. 69. On 11.05.2005 he received queries from the investigating officer vide letter Exh.70. He was requested to offer his clarification on the same. His finding, that the epithelial layer behind the glans of the penis was denuded around the coronal sulcus which was fresh and most probably caused due to friction during the intercourse/ vaginal penetration, does corroborate the testimony of the prosecutrix. In cross-examination, he admitted that against column - smegma the printed words "present/absent" were scored out. In fact this does not make any difference. While striking off the word "present" he 32 apeal-485-06-i
opined that "yellowish sticky secretion noticed behind glans in coronal sulcus which is collected by swab and sent to CA for vaginal epithelial cells". It is, therefore, clear that Dr. Patil wanted to convey that the smegma was absent and what he observed was written by him. He denied suggestion that at the instance of the Police he scored the words "smegma present". He admitted that the presence of smegma would indicate that in near past no intercourse was taken place. Thus there is no flaw in the testimony of Dr. Patil in his report at Exh. 69 and which he reiterated in Exh. 71. He answered the question as under : "1) Answer to the Q.No.1.
Smegma was not seen on the coronal
sulcus behind the glans of penis instead yellowish sticky secretions were noticed which is normally seen after sexual
intercourse.
2) Answer to the Q. No.2
The epithelial layer behind the glans of the 33 apeal-485-06-i
penis was denuded around the coronal
sulcus which was fresh and most probably caused due to friction during the
intercourse/ vaginal penetration.
Thus this witness has fully corroborated the version of the prosecutrix. When the circumstance of finding yellowish sticky secretion behind glans of penis was put to the accused(Q.237), he tried to explain by saying that he was a patient of heat and he was undergoing treatment of Dr. Rege. PW-17 Dr. Bobade explained in his cross-examination that in case of friction, there can be tenderness and redness on the glans. Nothing was suggested to him about the disease with which the accused was suffering nor it was suggested to him that finding of yellowish sticky secretion is not normal phenomenon, but it is because of some disease.
27 Now we are confronted with the question as to whether in the light of the medical evidence, testimony of the prosecutrix that she was raped thrice 34 apeal-485-06-i
appears credible. In our considered view, it is so and we find consistency between the evidence of prosecutrix and the medical evidence. PW-16 Dr. Chavan has stated that vaginal mucosa was mildly inflamed and on that basis while giving opinion on 25/4/2005, the possibility of sexual assault/intercourse was expressed. Because of negative report of the chemical analyser on 17/6/2005, it was opined that there may be possibility of incomplete sexual intercourse. In our considered view, this does not at all contradict the testimony of prosecutrix for the reason that possibly in all the three attempts, he could not penetrate completely. However, he slept over her and tried to penetrate and the prosecutrix while narrating this naturally stated that she was raped thrice. The prosecutrix was below 17 years and had appeared for 11th Standard examination. She is not a grown up lady. In the light of these circumstances her testimony is to be 35 apeal-485-06-i
appreciated. This is what is expected from the girl of her age. Moreover the place where the incident occurred and the position of the accused is relevant. It has come in the evidence that the accused had consumed liquor at that time. In such a situation it is normal for a person like accused to be apprehensive of the danger of being caught, which would make him unstable. Certainly one cannot be comfortable in such a situation. Anxiety and non-cooperation from the prosecutrix appears to be the reason of his inability to achieve complete penetration. 28 Explanation to section 376 clarifies that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. In [Wahid Khan vs. State of M.P.[(2010) 2 SCC 9], the Supreme Court reiterated the consistent view that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is 36 apeal-485-06-i
immaterial. The Hon'ble Supreme Court made reference to the opinion expressed by Dr. Mody in his Medical Jurisprudence and Toxicology(22nd Edition) at page 495 as well as to Dr. Parikh's Textbook of Medical Jurisprudence and Toxicology. Dr. Parikh defined the term "sexual intercourse" as under : "In law, this term is held to be mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
For the aforesaid reason, we are not in agreement with the learned counsel for the defence that the testimony of the prosecutrix with the aid of the medical evidence, does not disclose an offence of rape. Even assuming that theory of use of condom is afterthought, absence of semen in the vaginal swab is not the evidence of absence of sexual intercourse. Absence of seminal stains on the clothes, vaginal swabs etc. merely indicates that there was no 37 apeal-485-06-i
discharge nevertheless, it is not evidence of absence of rape. This is what precisely Dr. Mody in his Medical Jurisprudence and Toxicology(22nd Edition) at page 495 clarified.
"Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains."
29 Now, we shall deal with the evidence of PW-3 Sumit Pawar and examine whether his testimony corroborates the version of the prosecutrix. PW-3 Sumit is security guard attached to private agency. Services of security agency have been engaged by an Association of the Senior Citizen. They have been allotted duty of patrolling in the Marine Drive area. On 21//6/2005, his duty hours were 7 a.m. to 3 p.m. The accused was known to him. He had instruction 38 apeal-485-06-i
from the accused that whenever couples are seen making love or behaving indecently, the latter should be informed. He had mobile phone having number 9869274183. The mobile in possession of the accused was having number 9224132263. The version of this witness is that at about 2.30 p.m. he noticed the prosecutrix and a boy and as was instructed, he informed the accused. The accused asked him to bring them to police chowky. According to him, he asked the prosecutrix and said boy to follow him to the police chowky. Following his direction they both came to police chowky and saw the accused there. After entering the police chowky, the accused disclosed that he would charge the prosecutrix and PW-2 Pramod for behaving indecently or in obscene manner. The notebook which PW-3 Sumit was carrying with him was used by the accused to write down names and addresses of the prosecutrix and PW-2 Pramod. Thereafter, he was 39 apeal-485-06-i
asked by the accused to leave the police chowky on the pretext that recording of statement of prosecutrix would take much time. PW-3 Sumit collected his note book and since his duty hours were over, left the place. He identified the notebook Art.-4. The writing made by the accused has also been identified and marked Exh. 12. In cross-examination number of hypothetical questions were put to him. He was asked about location of the police chowky and the time required to walk between the police chowky and the place where the prosecutrix was found sitting. While answering various questions in cross- examination, it is transpired that he had no right to arrest anybody. His duty was to patrol in the area, to identify and drive away drug addicts and hawkers. For reaching to the place of duty he was required to travel by train and the bus. The attendance role is kept in Kalpana building before reporting for duty. He and other security guards were required to change 40 apeal-485-06-i
their clothes. In addition to him, two more guards were engaged to patrol the Marine Drive area. They were instructed not to harass innocent person. Thus, we find that major part of his cross-examination has no relevance to the facts in issue. His further part of the cross-examination shows that he had seen the prosecutrix and the PW-2 sitting on the parapet wall. To their left and right other boys were sitting. They were facing the sea. The place was exactly near fly over bridge. The accused had provided his mobile number to him and had instructed him to contact the former if he finds any couple sitting on the parapet wall. He contacted the accused at 2.45 p.m. and met him at 3 p.m. Then he was asked about the notebook. According to him, because the accused demanded notebook he gave it to him. He did not find any hitch in doing so. He did not feel odd because the accused called him to the police chowky. This witness was also required to face end number of 41 apeal-485-06-i
questions, which according to us are not germane to the facts in issue. Then it was suggested to him that the accused demanded a note book, which was lying on the table. He was confronted with the other writings in the notebook. It is seen that he is not the author of all the writings. This is for the reason that this note book is official and used by other security guards. An important fact coming through his mouth is that he learnt of the incident on the next day and then he went to the Marine Drive Police Station. There enquiry was done and his statement was recorded. He denied the suggestion that on 21/4/2005 he was not on duty. He also denied the suggestion that no instructions were given to him by the accused that whenever he would find couple sitting on parapet wall, latter should be informed. Then he was asked about the ownership of the mobile number. He explained that it was in the name of his cousin Ratnadeep Pawar. He then disclosed the 42 apeal-485-06-i
mobile number of accused. His cross-examination ended with the suggestion that the accused never provided him his mobile number. Despite searching and lengthy cross-examination, in our opinion, nothing has surfaced to discard the testimony of this witness. In the first information report Exh.13, there is mention of the fact that security guard had approached the prosecutrix and thereafter, she and PW-2 Pramod followed him to the police chowky. No attempt has been made in the cross-examination to point out that this witness has any animus with the accused or he had any reason to depose false against the accused. We find him wholly reliable and trustworthy.
30 Now, we shall proceed to discuss the testimony of PW-9 Ratnadeep Pawar. PW-9 Pawar is cousin of PW-3 Sumit. Both are residing together. Mobile number 9869274183 stands in his name. According 43 apeal-485-06-i
to PW-9 Pawar this mobile was purchased by him about one and half year back. Since he was not using it, he had given it to PW-3 Sumit. According to him, on 21/4/2005, this mobile was with PW-3 Sumit. In cross-examination, he clarified that he had purchased only SIM card and not the instrument. He was then questioned about the place of his work, salary which he receives, the documents submitted by him while purchasing the SIM card and the outstanding bill amount towards use of mobile. He admitted that the SIM card was handed over by him to PW-3 Sumit without obtaining any receipt from the latter. We find no flaw in the testimony of this witness. He appears to us reliable witness.
31 Prosecution examined PW-10 Dilip Tambe to point out that the mobile in possession of the accused was in fact purchased by him on 18/4/2005 in the name of this witness. PW-10 Dilip who is a police 44 apeal-485-06-i
constable attached to Marine Drive Police Station knew the accused. He deposed that in April, 2005 the accused had asked him whether he would like to stand surety for him against a loan, which he would be borrowing from Datt Seva Credit Society. PW-10 Dilip consented for this and handed over to him zerox copy of the ration card, his identity card and electricity bill. He never purchased SIM card bearing mobile No.9224132263. In cross-examination, it is transpired that the reason for borrowing loan and as stated to him by the accused was the pregnancy of his wife and for that he needed money. There is absolutely nothing in the cross-examination to discard this version. Being a colleague he believed the accused and parted with necessary papers, which were used by the accused to buy mobile. 32 To establish the link relating to ownership of the mobile other witness examined is PW-15 Amrutlal 45 apeal-485-06-i
Nandu. He owns a shop in the name and style as Rahul Electronics, which is near Marine Drive Police Station. In his shop mobile phones are kept for sale. His testimony shows that on 18/4/2005 accused came to his shop and disclosed his intention to purchase Tata company mobile. He filled up the form. He supplied zerox copy of the ration card and identity card of PW-10 Tambe. He brought the signature of PW-10 Tambe on the form and handed over to this witness. PW-15 Amrutlal then gave delivery of mobile instrument no. K-112 of Tata Company. He had issued bill for the same. Its carbon copy is marked as Exh.
58. In cross-examination, it is revealed that his statement was recorded in December, 2005. Several police officers used to visit his shop. On 22/4/2005, he read the news of the incident in the newspaper. After reading the news item he on his own did not approach the police to inform that mobile seized in the case was sold by him. Except delay in recording 46 apeal-485-06-i
of his statement, his testimony is trustworthy. In further part of his cross-examination, it has surfaced that on the earlier two occasions the accused had visited his shop. However, he could not recollect as to how many mobile phones he had sold in the month of April, 2005. It is pertinent to note that this is not the only isolated statement on the basis of which some inference is to be drawn. Mobile of the said number was seized from the possession of the accused. The person in whose name i.e. PW-10 Tambe, the mobile was purchased has been examined. We have already discussed his evidence. 33 Decisive evidence relating to the call made by PW-3 Sumit to the accused on the day of occurrence is that of PW-14 Yogesh. This witness deposed that he had worked with Tata Tele Communication Service. The record of incoming and outgoing calls is stored in a hard disk. They have facility of taking print-outs 47 apeal-485-06-i
showing incoming and outgoing calls. The mobile no. 9224132263 is of Tata Mobile. After receipt of request letter from the police for seeking information of incoming and outgoing calls from the aforesaid mobile number, he arranged to take print-outs. In the court, he had produced print-outs which are collectively marked Exh.-55. His cross-examination shows that he had taken training of running programmes like tally, web-designing and M.S.Office. About the date of taking print outs he expressed his ignorance. In fact such details are insignificant. Then, he was asked about what technology Tata is using to run this system. Exh.55 collectively are the details supplied by this witness. The mobile no. 9224132263 stands in the name of Dilip Tambe i.e. PW-10. On 21/4/2005 at 14.45 hours there was a call from mobile no.9869274183 to mobile no. 9224132263. On the same date at 14.58 hours there was second call. The duration of the first call is 56 48 apeal-485-06-i
seconds. Duration of the second call is 8 seconds. This amply corroborates the version of PW-3 Sumit that after he saw the prosecutrix and the boy sitting on the parapet wall, he contacted the accused. After he carried them to police chowky, he again informed the accused.
34 The prosecutrix, PW-2 Pramod and PW-3 Sumit consistently spoke about the accused using the notebook for writing the names and addresses of the prosecutrix and PW-2 Pramod. The accused disowned the authorship of relevant writing in the notebook Article-4. During the course of investigation, specimen writing of the accused was obtained. The notebook was seized from the possession of the PW-3 Sumit on 22/4/2005. PW-11 Pankaj is the panch witness. He deposed about seizure of the notebook on 22/4/2005 at 8 p.m. According to him, one other panch Mohd. Ayub and PW-3 Sumit were present in 49 apeal-485-06-i
the office of the C.I.D. It is his version that the person by name Sumit Pawar(PW-3) produced the note book containing 84 pages. It was seized under panchanama Exh. 45. On page-80 there is relevant writing bearing Exh.12. The entire notebook is marked Exh.46. In cross-examination, it is revealed that he is a estate agent having his office in Matunga. At the relevant time, he was proceeding towards V.T. Station. That time police constable called him to act as a panch. When he visited the office of C.I.D., he was explained about the purpose for which he was called. The entire process of seizure and writing panchanama was over within 40-45 minutes. He denied the suggestion that no panchanama was drawn in his presence. PW-27 API Mukhedkar made seizure of the notebook on 22/4/2005. After taking possession of the same, he pasted on the wrapper the lable of the panchas signature and sealed it. PW-20 Anil Mahabole, PI attached to DCBCID Unit-I obtained 50 apeal-485-06-i
specimen writings of the accused on 25, 26, 27 April, 2005. Specimen writings are in 27 sheets. These sheets were marked Exh.98 collectively. PW-24 Dilip is hand writing expert. He had experience of examining number of documents and deposing in the court. According to him, the documents pertaining to C.R.No.101 of 2005 registered at Marine Drive Police Station were received under covering letter no.74 of 2005 on 13/5/2005. Notebook containing 100 pages was in sealed cover. Original letter was brought by him in the court, which is at Exh.84. After receipt of the documents including specimen writing at Exh.46, he carried preliminary examination. Writings at page 80(Exh.12) were encircled by red ink and marked as Q-1. The specimen writings were marked as X-1 to X-9 by a green pen. He examined these documents under various lighting conditions and magnification and also obtained enlarged photo films of the questioned writings and the specimen writings. He 51 apeal-485-06-i
then completed final examination and recorded his opinion to the effect that "the red encircled English writing marked as Exh.Q-1 when compared with those on the Exh. X-1 to X-9 shows individual similarities which are indicative of their common authorship." The opinion dated 30/6/2005 is at Exh.85. This witness is subjected to extensive cross-examination. He refuted the suggestion that since he has attached to the office of C.I.D. crime Maharashtra State, he has given positive opinion showing similarities in the disputed and specimen handwritings. Next part, of his cross-examination is about the factors which are considered while determining the similarities like pen, pressure, curve, shading, pen position, writing slant, pen pause etc. He clarified that despite the possibility of variations due to such factors, individual characteristic of a person remains the same. In cross- examination, he was asked to produce the outer envelop and the same was produced and is at Exh. 52 apeal-485-06-i
86. As regards non-comparing all the 27 specimen writing, his answer is, only 9 sheets of specimen writing were found sufficient for examination. He denied the suggestion that he did not examine any document pertaining to this case. Evidence of this witness is free from doubt. We have no hesitation in accepting the final opinion Exh.85 and holding that this supports the prosecution case that to threaten the prosecutrix and PW-2 Pramod, the accused had used the notebook to write their names and addresses.
35 The learned counsel for the accused submitted that the prosecution did not adduce cogent evidence to prove that specimen writing of the accused were taken. There was unexplained delay in forwarding specimen writing to the handwriting expert, he argued.
36 Evidence on the record suggests that note book 53 apeal-485-06-i
article-4 with questioned writing Exh.12 was seized on 22/4/2005 before panchas vide panchanama Exh.45. Specimen writing of the accused were obtained on 23, 24 and 25 April, 2005. For that two panchas namely Akash Divan and Anwar Ahmad were called. These sheets are at Exh. 98(collectively). These 27 sheets are also signed by the accused. Admittedly none of the panchas has been examined. PW-27 API Mukhedkar deposed that specimen writings were obtained by PW-20 PI Mahabole in his presence. It is surprising that PW-20 PI Mahabole did not whisper a word about this. PW-27 API Mukhedkar in his cross- examination admitted that none of the 27 sheets of specimen writings (S1 to S27) bear his signature. The learned Additional Sessions Judge in para-92 of his judgment made passing observations about evidence led by the prosecution on the point of obtaining specimen writing of the accused. There is one more flaw which relates to delay in despatch of questioned 54 apeal-485-06-i
and specimen writing to the handwriting expert. PW-26 Pol despatched this writing on 13/5/2005 under Exh.84. When asked about delay in forwarding these documents to the expert he could not assign any reason. On careful consideration of this part of the prosecution case, we do not find any doubt about authorship of the purported specimen writing of the accused. No doubt, it was expected of the concerned I.O. to forward the questioned and specimen writing to the expert without any loss of time. Even apart from this, there is consistent evidence of PW-1- prosecutrix, PW-2 Pramod and PW-3 Sumit, who had seen the accused writing in the note book. They identified his writing at Exh.12. Under section 67 of the Evidence Act, amongst normal methods of proof of signature and handwriting, one method is to call the person in whose presence the document was signed and written. There being cogent evidence brought on the record particularly that of PW-3 Sumit, 55 apeal-485-06-i
to fix authorship of questioned writing (Exh.12), we find no difficulty in holding that author of the questioned writing is none other than the accused. 37 We shall take up for discussion the deposition of PW-2 Pramod. He deposed about his working in the Civil Defence Academy and in turn he coming in contact with the prosecutrix. On 21/4/2005, he had been to Civil Defence College to collect his allowances. Then he joined group of boys and girls and accompanied them to Marine Drive. When he and the prosecutrix were sitting hand in hand on the parapet wall of the Marine Drive sea face, one watchman(PW-3 Sumit) approached them and asked them what was going on. He retaliated by saying that they were doing no wrong and he asked the said PW-3 Sumit about latter's identity. He further deposed that on asking by PW-3, Sumit he and the prosecutrix went to the police chowky. Their other friends who were 56 apeal-485-06-i
sitting around also joined them in the police chowky. He had a talk with the accused who was sitting in the police chowky. The accused rebuked him and the prosecutrix by saying that "what they were doing. Didn't they get any other place." The accused asked his other friends to leave or else he would detain him and the prosecutrix. He further deposed about the accused telling them that they would be charged and for that he asked notebook from PW-3 Sumit. The accused noted down names and addresses and then demanded Rs.5000/-. PW-2 Pramod had Rs.100/- with him which he offered. The accused got annoyed and said that he was not a beggar. PW-2 Pramod left police chowky to arrange for Rs.5000/- asking the prosecutrix to wait. It is in the evidence that the accused did not allow the prosecutrix to leave the police chowky. By the time he could arrange the amount of Rs.3000/- to 3500/-, it was 7.30 p.m. When he returned to police chowky, he saw crowd of people 57 apeal-485-06-i
gathered there. From them, he learnt that one girl was raped by the police constable. He then rushed to the police station where he saw the prosecutrix sitting. On seeing him, the prosecutrix hugged him and started weeping by saying that she was ravished by the police constable. Then his statement was recorded on the same night. He then spoke about the test identification parade which was carried out on 5/6/2005. At this stage, considering the facts and circumstances of the case, we are of the opinion that holding of test identification parade was not at all necessary. This is for the reason that the accused did not dispute his duty as a Beat Marshal on 21/4/2005. Events like he saw the prosecutrix and a boy (PW-2 Pramod) in the Marine Drive area, arrival of the police van, he, prosecutrix and the PW-3 Tiwari being carried to the police station point out that identity of the accused was never an issue or could ever be an issue. 58 apeal-485-06-i
38 This witness was also subjected to lengthy cross- examination and entire deposition runs into 43 pages. The questions which he faced in the cross- examination were about he joining Civil Defence Academy, duty which he was performing, allowances admissible to him, the date since when he was acquainted to the prosecutrix, location of chowpaty, duties performed by him, duties of assisting police, bandobast duty at the time of festival etc. He was to answer the questions as to why he did not approach his parents or higher police officer when he was asked by the accused to arrange amount of Rs.5,000/-. In a given situation, it may be seen that he and his friend i.e. prosecutrix were made to believe that they had done something wrong and for which they should suffer. He was required to deal with a person in Khaki. This was the situation in which a boy like PW-2 Pramod and the prosecutrix had to completely surrender to the dictates of the person in authority. 59 apeal-485-06-i
They both were very much concerned about keeping the incident, although minor, secret from their parents. As it normally happens and having regard to human conduct, persons like prosecutrix and the PW-2, would sense a danger of their parents coming to know about such type of incident. It, is therefore, too much to expect from PW-2 Pramod to have complained to the superior police officer or sought help of the parents. As a normal human being he thought it fit to arrange for money and get rid of the situation. His anxiety was to see that the prosecutrix goes out of the police chowky rather than thinking to do anything else. We therefore, find the conduct of the PW-2 Pramod as natural and this very factor makes his testimony credible. During his cross- examination he was put too many questions which according to us are insignificant. Many of them are hypothetical in nature. His explanation as to the places which he was required to visit to arrange for 60 apeal-485-06-i
the amount are all probable. It is pertinent to note that he travelled up to Ville Parle and Andheri and this was the reason that he could return to police chowky only after two hours, although, he had assured to the accused and the prosecutrix that he would be arranging the amount within 10 minutes. He was asked as to why he did not insist his single friend to lend him Rs.5,000/- and his answer that he was at the receiving end and was supposed to accept whatever was given to him, appears natural. Many more questions of this nature were put to him and his answers are rational. He was confronted with the statement made by him before the police on 21/4/2005 which is marked 'A' wherein he had stated that he reached Marine Drive Police Station running. In cross-examination he stated that at about 7.30 p.m. on reaching police chowky at about 7.30 p.m. he did not find the prosecutrix and therefore, he engaged taxi to travel from police chowky to Marine 61 apeal-485-06-i
Drive Police Station. It seems that when one says that he went to some place running, it must be understood in the context in which he intended. The natural meaning is without loosing time he reached at the particular place irrespective of the conveyance used for covering the distance. Therefore, such discrepancies which are natural do not in any manner damage credibility of the witness. He denied the suggestion that no amount was demanded by the accused nor he had gone out to arrange for the amount. It was also suggested to him that at the instance of the prosecutrix he deposed false. While explaining incriminating circumstances which were put to the accused under section 313 of the Code of Criminal Procedure, particularly, Question No.86, he put-forth a specific case. According to him, "PW-2 and PW-1 were engaged in sexual intercourse in the parking slot. I questioned him. The boy PW-2 became arrogant to me. He challenged me. 62 apeal-485-06-i
Consequently, I called police vehicles." It is surprising to note that during cross-examination of this witness, nothing of this sort was suggested. On the contrary, it was suggested to him that on 21/4/2005 he had not gone to Marine Drive with his friends. After having considered the deposition in the light of the surrounding circumstances, we are of the view, that he is reliable witness. Absolutely, he has no grudge against the accused. The circumstances that he was not at the scene of occurrence when the police mobile van arrived, his return to the spot at 7.30 p.m. and then he rushing to the Marine Drive Police Station where his statement was recorded are clinching enough to make, not only his testimony but entire prosecution case, credible.
39 Now, we shall discuss the deposition of PW-5 Tiwari(Babloo). The prosecutrix was questioned about her acquaintance with him. She replied that she 63 apeal-485-06-i
alone or sometime with her parents used to visit the stall where the PW-5 Tiwari used to work. She knew him as "Babloo" and not by his real name. There was an attempt by the defence to point out that their relations were very close. In our view this is irrelevant.
40 PW-5 Tiwari deposed about he working as a salesman in the shop of one Akbar Ali. The prosecutrix as a customer used to visit his stall and hence, he knew her. On the day of incident he had been to his shop to join his duty. However, he was asked by the owner to join on the next day because he had returned from long leave. He had his friend in Meghdoot building. Admittedly, this Meghdoot building is abutting Marine Lines Chowky. Therefore, he came to Meghdoot building but could not meet his friend. When he was passing from near the police chowky, he heard the screams of the prosecutrix. The 64 apeal-485-06-i
prosecutrix disclosed him that she was raped by the police constable sitting in the police chowky. He was annoyed. He started shouting. Passers-by started gathering and joining him in cursing the police constable. It is in the evidence that he was the accused who informed the control room. This is evident from the evidence of PW-6 Santosh-wireless operator and the entries made by him at Exh.37 and 37-A.
41 Then this witness spoke about the arrival of the police van and he and the prosecutrix being carried to the Marine Drive Police Station in police van. On reaching there at about 7 p.m. his statement was recorded. Undoubtedly, he is a chance witness. Therefore, his testimony is required to be scrutinized closely. Number of questions were put to him regarding his acquaintance with the prosecutrix. Defence was right in searching for reason as to how 65 apeal-485-06-i
the prosecutrix who was one amongst the thousands of customers visiting the stall, had come close to this witness. He has answered by saying that the prosecutrix used to attend his shop sometimes alone and sometimes with her parents. He did not know names of her mother and father. Nor he could recollect last visit of the prosecutrix to his shop. He had no occasion to meet the prosecutrix outside. Her visit to the shop was strictly for making purchases and not to meet him. We find nothing unusual in this. Considering they being of the same age they entering into casual talk and getting familiar is quite natural. The next thing highlighted in the cross-examination is about his presence nearby the spot at the time of incident. He was asked as to why he did not contact the owner of the shop on the telephone and sought his permission to join duty instead of he simply visiting the shop. There appears nothing unusual in he visiting the place of his work since he had returned 66 apeal-485-06-i
from his native place and was without any work. Many questions were put to him about his conversation with the owner of the shop relating to his joining the duty. Certainly, an attempt was to show that neither he had come to Churchgate area nor he had gone to Meghdoot building to see his friend. Even assuming the evidence of this witness as artificial, the fact remains that when mobile van arrived, he was very much there. Thereafter he alongwith prosecutrix boarded the said mobile van and reached at the Marine Drive Police Station where his statement was recorded. Therefore, although he is a chance witness, his presence on the spot is proved not by his testimony but by the testimony of the police officers who had seen the prosecutrix and this witness on the spot and then they were carried to the police station. The other clinching circumstance is, could it have been humanly possible to plant this witness and immediately record his statement by 67 apeal-485-06-i
constructing a story that prosecutrix used to visit his stall and hence was known to him. When judged in the light of the surrounding circumstances, the evidence of PW-5 appears consistent in all material particulars with the evidence of the prosecutrix and PW-2 Pramod.
42 We do not find any need to make reference to the evidence adduced by the prosecution relating to dispatch of clothes of the prosecutrix and the accused, to the chemical analyser since findings of the chemical analyser are in negative. However, there is need to discuss evidence regarding dispatch of the water bottle attached from the spot in which alcohol was found, collection of the blood sample of the accused and report of the chemical analyser. This is necessary to verify testimony of the prosecutrix wherein she claimed that the accused had consumed liquor before she was sexually assaulted. 68 apeal-485-06-i
43 PW-27 API Mukhedkar, under covering letter Exh. 91- despatched seized articles including blood sample of the accused to Chemical Analyser. The report from Forensic Science Laboratory dated 6.5.2005 indicates that liquid in bottle with label of "Bada Bisleri" was found to contain ethyl alcohol. The blood sample of the accused found to contain 0.140 milligrams ethyl alcohol. Report is at Exh. 92. The learned trial Judge disbelieved the blood sample report by assigning reason that, although, blood sample was collected by PW-17 Dr.Bobade on 21/4/2005, it was despatched on 23/4/2005 by PW-27 API Mukhedkar. According to learned trial Judge, prosecution did not adduce evidence to point out as to where blood phial was lying for two days. He therefore, acquitted the accused of an offence under section 85(1)(a) of the Bombay Prohibition Act. We are not interfering with this finding. Therefore, FSL report relating to blood 69 apeal-485-06-i
sample will have to be kept out of consideration. However, report of FSL that "Bada Bisleri" bottle was found to contain ethyl alcohol supports the version of the prosecution that the accused had consumed liquor- which was in the water bottle. 44 Mr. Wagh, learned counsel for the accused submitted that on the touch-stone of probability the evidence of prosecutrix stands nowhere. She is college going girl, trained in Civil Defence course could have never allowed the accused to take liberty of her. Having regard to the place, time and the fact that her friends were with her, the prosecutrix would never have remained mute spectator while she was being sexually assaulted. Her version that she was raped thrice proved to be false when considered in the light of medical evidence and the negative evidence of the FSL Vital omissions in the FIR are also grounds to discard her testimony. To fortify his 70 apeal-485-06-i
contention that the case of prosecution as a whole is liable to be disbelieved for the various flaws of serious nature and infirmities, he invited our attention to the few recent decisions of the Supreme Court. In the case of Tameezuddin @ Tammu vs. State of (NCT) of Delhi(AIR 2009 SC(Supp) 2519. It was held that -
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable."
In this case, allegations of rape were levelled by a married lady having children. Incident had occurred in the factory owned by her ex-employer. She and her husband had gone to the said place to recover her past dues. Her husband had accompanied her but the accused had sent him to buy something and meanwhile committed rape on her. During trial 71 apeal-485-06-i
number of flaws surfaced including non-examination of material witnesses.
45 In Laliram and anr. v/s. State of M.P. [(2008) 10 SCC 69], the Supreme Court observed that- "Where allegation is of rape by many
persons and several times but no injury is noticed that certainly is an important factor. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. If the court finds it difficult to accept the version of a
prosecutrix on the face value, it may search for evidence direct or circumstantial." It was a case of gang rape and had claimed that at the time of incident, she was 4 months' pregnant. However, the doctor stated that she was actually on menstruation period. There were allegations of she having had dragged to a considerable distance and had spoken about the scratches on the back and other parts of the body.
46 In Rajoo & ors. Vs. State of M.P.[AIR 2009 72 apeal-485-06-i
SC 858], it is observed that -
"The evidence of prosecutrix must be
examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her
statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false
allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of
accused are involved."
It was a case of gang rape involving four accused persons. She was carried on a scooter and allegations were that four accused turn by turn committed rape on her and thereafter she was dropped at some distance. After examining the evidence, the Supreme Court observed that - "On an examination of the entire evidence, we are of the opinion that it would be difficult to conclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth 73 apeal-485-06-i
and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins."
47 In Narayan @ Naran v/s. State of Rajasthan [2007 AIR SCW 2732], the Supreme Court observed that (Head note):
"Prosecutrix stating in FIR that she was raped thrice by accused-Her evidence
however showing that she was raped only twice- No attempt made by prosecutrix to get down from tractor on its way through many villages - Prosecutrix on other hand stating that she sat happily in tractor- No injury found on her body or private parts - Statement of prosecutrix that she narrated entire incident to lay in whose house she slept on fateful night - Not supported by that lady- Testimony of prosecutrix full of material contradictions- Conviction cannot be based on it."
48 In criminal cases duty is cast upon the court to examine the evidence in the light of the surrounding circumstances. The expression "proved" occurring in section 3 of the Evidence Act means :
"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man 74 apeal-485-06-i
ought, under the circumstances of the
particular case, to act upon the supposition that it exists."
Thus, the definition of "proof" centers around probability. It means such evidence as would induce the reasonable man to come to the conclusion. In this context, it must be understood that beyond- reasonable-doubt is a fair doubt based upon reason and common sense. It should have its foundation in the prosecution case itself. Therefore, in the matter of appreciation of evidence, the facts and circumstances of the particular case are decisive factors. In Laliram v/s. State of M.P.(supra), the Supreme Court observed that -
"As rightly contended by learned counsel for the appellants, a decision has to be
considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence." (emphasis supplied) 49 As regards finding of wrist watch on the spot, it is pointed out by the learned counsel for the accused 75 apeal-485-06-i
that this evidence is concocted. His submission is based on the fact that the wrist watch is not appearing in the photographs. The PW-12 Anant- panch to the spot panchanama stated that photographs were taken prior to drawing of spot pachanama. He therefore, contended that wrist watch has been planted. It is the version of PW-23 ACP Sharma that on the spot wrist watch and broken hook were seen. Even assuming that the panch is correct, it cannot be concluded that the wrist watch was not on the spot. Area of the police chowky is 6ft x 5 ft. The possibility that the photographer missed the particular spot where the wrist watch was lying is not ruled out. This is so considering the size of the article.
50 With the assistance of learned counsel for the parties, we have undertaken close scrutiny of depositions of the witnesses examined in this case. 76 apeal-485-06-i
On the touch-stone of probability and in the light of surrounding circumstances, the prosecution case appears credible. There is overwhelming evidence to lend corroboration to the version of prosecutrix like medical evidence suggesting inflamed vaginal mucosa, findings recorded during the examination of the accused, evidence of PW-3 Sumit supported by authorship of the writings in his notebook, evidence of PW-2 Pramod and the testimony of the chance witness PW-5 Tiwari. The wrist watch, water bottle containing ethyl alcohol found on the spot and the confirmation received from the FSL about presence of ethyl alcohol further lends corroboration to the version of the prosecutrix. The evidence of possession of the mobile phones by the accused and PW-3 Sumit and evidence of PW-14 Rupesh make the prosecution case probable. It establishes the presence of PW-3 Sumit on the scene of occurrence thereby establishes genesis of the incident. 77 apeal-485-06-i
51 On careful consideration of the evidence brought on the record, in our view, the prosecution has proved beyond reasonable doubt the charges levelled against the accused. The learned Additional Sessions Judge has correctly weighed the evidence and rightly concluded that the accused is guilty of offences punishable under sections 342, 506(II) and 376(2)(a) & (b) of I.P.C.
52 This takes us to consider the appeal filed by the prosecution to enhance the sentence imposed upon the accused. Learned APP submitted that the accused who had a duty to protect people, particularly, women, children and helpless has betrayed the confidence reposed in him and brought bad name to the entire police force. According to him, the learned Additional Sessions Judge committed error in not awarding sentence of imprisonment for 78 apeal-485-06-i life. As against this it is contended by the learned counsel for the accused that there was no justification for the learned Additional Sessions Judge to award more than minimum sentence provided under the law.
53 A crime is harmful for society as a whole although its immediate victim may be an individual. In the matter of fixation of punishment for any particular crime the Court should take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. Desire to curb an evil should not carry the Court away from its judicial mind and the sentence should not be so unduly harsh as to defeat the ends of justice.
79 apeal-485-06-i
54 The learned Additional Sessions Judge dealt in detail with the aspect of quantum of sentence. It was contended before him that the accused is the only earning member in his family. He has his wife, child, mother and unmarried sisters to look after. Therefore, it was submitted that he be awarded less than the minimum sentence. This was opposed by the learned Special Public Prosecutor. Considering the rival submissions, the learned Additional Sessions Judge awarded sentence of 12 years R.I. which according to us does not call for any interference. 55 As regards appeal against acquittal of the accused u/s. 85(1)(a) of the Bombay Prohibition Act, it is submitted that in the blood sample of the accused 0.140 milligrams alcohol was found. The learned Additional Sessions Judge in para-99 observed that the link between sample collected and the sample reached to FSL is not established. We do not find any 80 apeal-485-06-i
justification to interfere with this finding. 56 In the light of foregoing reasons, we do not find any merit in both these appeals. Hence, both the appeals are dismissed.
(M.N.GILANI, J) (P.V.HARDAS,J)
Print Page
at great length, and persistence shown in going over the same ground again and again in the hope of making the witness to give discrepant statements must not be permitted. Control over the court proceedings by the Presiding Officer in such a situation is expected.
Bombay High Court
Sunil Atmaram More vs The State(At The Instance on 6 May, 2011
Bench: P.V. Hardas, M.N. Gilani
CORAM:- P.V.HARDAS AND M.N.GILANI, JJ1 Both these appeals arise out of the judgment and order of conviction and sentence dated 3/4/2006 passed by the Additional Sessions Judge, Greater Mumbai, in Sessions Case No.563 of 2005, whereby the accused was convicted for the offences punishable under sections 342, 506(II), 376(2)(a) & (b) of the Indian Penal Code and was sentenced as under: (i) for the offence punishable under section 342 of I.P.C. he was sentenced to suffer R.I. for 3 months and to pay fine of Rs.500/- i.d. to suffer imprisonment for 15 days; (ii) for the offence punishable under section 506(II) of I.P.C. he was sentenced to suffer R.I. for 6 months and to pay fine of Rs.1000/- i.d. to suffer further imprisonment for 30 3 apeal-485-06-i
days; (iii) for the offence punishable under section 376(2)(a) and (b) of I.P.C., he was sentenced to suffer R.I. for a period of 12 years and to pay fine of Rs. 25,000/- i.d. to suffer further imprisonment for a period of one year; however, he was acquitted of the charge of an offence punishable under section 85(i) (b) of Bombay Prohibition Act, 1949.
2 Aggrieved by the judgment and order of conviction and sentence, the accused-appellant has filed criminal appeal no. 485 of 2006, and aggrieved by the judgment of acquittal of the accused under section 85(i)(b) of the Bombay Prohibition Act, and for enhancement of sentence imposed under section 376(2)(a) and (b) of I.P.C., the State has filed Criminal appeal no.512 of 2006.
3 Briefly stated, the prosecution case as disclosed from the FIR and unfolded during the trial is as under:
4 apeal-485-06-i
The prosecutrix aged about 17 years is a college going girl, who had appeared for 11th standard examination in the academic year ending March/April, 2004. During vacation she joined first aid training course conducted by the Civil Defence, having their head quarters at Dhobi-Talav, Mumbai. The training programme started with effect from 14/4/2004. The incident occurred on 21/4/2005. On this day, she alongwith other boys and girls attended training session, which concluded at about 12.30 hours. After having lunch, some of them decided to visit Marine Drive promenade. At about 13.45 hours they reached Marine Drive station and from there they walked upto sea-shore and sat on the parapet wall facing the sea. This place is abutting the Princess Street flyover. The prosecutrix and her friend PW-2 Pramod were sitting holding hands on parapet wall. Under the Princess Street flyover there is a police chowky called as Meghdoot Police Chowky. It is 5 apeal-485-06-i
a portable structure admeasuring 6 ft. x 5 ft. and having hight of 8 to 9 ft. It is used as a halting point by the Beat police and even by security guards who are engaged for security duty in the Marine Drive area. The accused was a part of two motor cycle borne patrolling team known as Beat Marshals, deputed for patrolling the sea face promenade at Marine Drive. On the day of incident he alone was on duty. PW-3 Sumit is private security guard employed by private security agency to patrol the Marine Drive area. He saw the prosecutrix and PW-2 Pramod sitting hand in hand on parapet wall. He contacted the accused through his mobile. The accused through PW-3 Sumit summoned the prosecutrix and PW-2 Pramod to the police chowky. It was about 15.00 hours. Prosecutrix and PW-2 Pramod followed PW-3 Sumit to the police chowky where they met the accused. The other 4 boys and 4 girls also joined them. Alleging that they were involved in indecent 6 apeal-485-06-i
acts, the accused asked all others to go away except prosecutrix and PW-2 Pramod. The accused threatened them that he would charge them for the act of indecent behaviour in the public place and then demanded Rs.5,000/- from PW-2 Pramod. PW-2 Pramod did not have that much amount. The accused asked him to arrange for the amount and detained the prosecutrix.
4 The accused then closed the door of the police chowky, consumed liquor and despite resistance of the prosecutrix, committed rape on her thrice. After about an hour the prosecutrix could go out of the police chowky. The moment the prosecutrix came out of the police chowky, she saw her acquaintance Babloo(PW-5 Tiwari). The prosecutrix complained to PW-5 Tiwari that accused raped her. PW-5 got annoyed. He raised alarm which attracted passers-by. The media persons also arrived. At about 5.30 p.m. 7 apeal-485-06-i
the accused sent message to the control room. Two mobile vans arrived on the spot. The accused, prosecutrix and PW-5 Tiwari were brought to the Marine Drive Police Station.
5 The prosecutrix was questioned by the police officer. Her complaint was reduced into writing. On that basis offence bearing C.R. No.101/2005 under section 376(2)(a),(b), 342, 506(II), 323 of I.P.C. was registered. Immediately, the Investigating Officer visited police chowky. Spot panchanama was drawn. Photographs of the scene of occurrence were taken. Wrist watch, water bottle containing alcohol, were seized from the spot. On the same night clothes which were worn by the prosecutrix and the accused at the time of incident were seized under panchanama. Then, the prosecutrix and accused were sent for medical examination. On 21.4.2005 at 10.20 p.m. a team of three doctors including PW-16 8 apeal-485-06-i
Dr. Chavan who examined the prosecutrix. The accused was examined by PW-17 Dr.Bobade. 6 During investigation it was revealed that while threatening the prosecutrix and PW-2 Pramod, the accused had noted down their names and addresses on the note book supplied by PW-3 Sumit. This note book was seized from PW-3 Sumit. Mobile phone which was used by PW-3 Sumit to make call and mobile phone in possession of the accused on which the call of PW-3 was received were attached. It was revealed that on 18/4/2005, the accused had purchased mobile in the name of PW-10 P.C. Tambe. In order to fix authorship of the writing on the notebook, the specimen writing of the accused was collected. The questioned writing and the specimen writing were forwarded to handwriting expert on 13/5/2005. On 23.4.2005 the articles like clothes of accused and the prosecutrix, various swabs collected 9 apeal-485-06-i
by the medical officer during examination of the prosecutrix and the accused were sent to the chemical analyser.
7 After investigation was over, charge-sheet was submitted in the court of Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The learned Metropolitan Magistrate committed the case to the Court of Sessions, Mumbai.
8 The learned Additional Sessions Judge on the basis of allegations made in the chargesheet framed charges against the accused for the offences punishable under sections 342, 506(II), 376(2)(a) and (b) of I.P.C. and 85(i)(b) of the Bombay Prohibition Act, 1949. The accused pleaded not guilty to the charge. 9 In order to prove the charges, the prosecution examined 27 witnesses and placed reliance upon the various documentary evidence including opinion of 10 apeal-485-06-i
the handwriting expert. The accused did not examine any witness in his defence. His defence is that while on patrolling duty he spotted the prosecutrix and a boy in a half nude position. They were sitting in the parking area in between two vehicles. When he scolded them as to why they were indulging in indecent activities in public place, the boy started arguing with him and even threatened him to teach a lesson. The said boy then started shouting at him. When the accused warned the said boy that he would be informing their parents, the latter got annoyed and started collecting people. They refused to accompany him to the police station. Therefore, he made phone call at about 5 p.m. seeking police help. Meanwhile, people gathered. He again made second call. The said boy instigated the persons gathered there against him. Then the police van arrived. To the police officer, he explained as to what really had happened. Media persons came there and started 11 apeal-485-06-i
taking photographs. Thereafter, he was carried to the police station and mercilessly beaten. In a nut-shell he stated that because of public out-cry and media hype he was falsely involved in this case. 10 Mr. Wagh, the learned counsel for the accused took us through the entire evidence produced before the trial court. He assailed the judgment and order of conviction and sentence on the following grounds: The learned Additional Sessions Judge committed serious error in holding the accused guilty of the offence of rape and other charges. The testimony of the prosecutrix is full of infirmities and discrepancies. It is not supported by the medical evidence. Absence of injuries on the private parts and her person speaks volumes about her veracity. At the instance of police number of improvements have been made in the prosecution case. The facts like recording of addresses in the note book, the 12 apeal-485-06-i
accused demanding a bribe of Rs.5,000/-, PW-2 Pramod leaving the spot to collect bribe amount, did not find place in the first information report. Finding that no incriminating evidence could be collected during the medical examination, the prosecution deliberately put-forth story of the accused using condom. All the findings of the chemical analyzer are exculpatory and this shows innocence of the accused. The learned Additional Sessions Judge ignored such serious flaws and proceeded to rely upon testimony of the prosecutrix as a gospel truth. The evidence of PW-2 Pramod and PW-5 Tiwari ought not to have been relied upon by the learned Additional Sessions Judge. PW-5 Tiwari is a chance witness and absolutely there was no reason for him to be on the spot at the time of alleged occurrence. It was the accused who informed the police control room when PW-2 Pramod started arguing with him and started collecting people. Counsel went to the extent of contending that 13 apeal-485-06-i
because of undue publicity given to this incident in the newspaper and the questions having been raised in the State Assembly, he was deprived of a fair trial. 11 He further submits that alleged seizure of water bottle smelling of alcohol and the wrist watch from the scene of occurrence is false and ought not to have been relied upon. The writing on the note book(Art.4) are not that of the accused. As such, the learned Additional Sessions Judge committed error in relying upon the same. Evidence adduced by the prosecution, to attribute ownership of the mobile phone, being untrustworthy should have been discarded by the learned Additional Sessions Judge. The story of the prosecution as a whole is full of infirmities, discrepancies, improbabilities in the sense that in the broad day light, when the prosecutrix was accompanied by her friends, it was humanly impossible for the accused to sexually assault her. 14 apeal-485-06-i
There has been delay in recording of the statements of the witnesses. He further argued that the story narrated by the prosecutrix that accused by using his one hand gaged her mouth and by another hand undressed her and also undressed himself etc. is inherently improbable. This shatters the entire prosecution case and therefore, it should have been disbelieved by the learned Additional Sessions Judge. 12 In a nut shell, it is the contention of the learned counsel for the accused that the conviction recorded by the learned Additional Sessions Judge cannot stand to the test of probability and needs to be quashed. 13 The learned APP supported the judgment and order of conviction and sentence. It is his contention that there exists overwhelming evidence to substantiate the charges leveled against the accused. Evidence of the prosecutrix is corroborated by other 15 apeal-485-06-i
evidence in the material particulars. The prosecutrix who is a girl of less than 17 years had accompanied her friend to Marine Drive sea-face and was sitting on the parapet wall. At the relevant time, the accused being assigned with the duty as a Beat Marshal took undue advantage of helpless-innocent girl. There is immediate lodging of FIR. The scene of occurrence was immediately visited. Statements of the witnesses were also recorded promptly. He further submits that the medical evidence supports version of the prosecutrix that she was subjected to sexual assault.
14 In order to support the appeal filed by the State, he submits that the learned Additional Sessions judge was not justified in taking lenient view by imposing sentence of 12 years. Considering the gravity and nature of offence, the learned Additional Sessions Judge ought to have sentenced the accused to suffer 16 apeal-485-06-i
imprisonment for life. Lastly, it is contended by the learned APP that the Additional Sessions Judge committed error in acquitting the accused of the offence punishable under section 85(i)(a) of the Bombay Prohibition, Act despite there being sufficient evidence available on record.
15 In reply, the learned counsel for the accused submits that the accused is in fact innocent. The quantum of sentence is a matter of discretion of the trial Court. There is absolutely nothing to show that this discretion has been wrongly exercised by the learned trial Court. He therefore, submits that the appeal filed by the State may be dismissed. As regards acquittal of the accused of the offence punishable under section 85(i)(a) and (b) Bombay Prohibition Act, it is submitted that there exists no material to arrive at such a conclusion and therefore, the learned Additional Sessions Judge was right in 17 apeal-485-06-i
holding the accused not guilty of such offence. 16 Having considered the rival submissions, we shall firstly examine the evidence of the prosecutrix. Her testimony shows that she joined the Civil Defence course which commenced on 14/4/2004. She alongwith 12 boys and 8 girls were undergoing the first aid training programme. On the day of incident all the trainees were relieved at 12.30 noon. They had a lunch in the canteen in Aykar Bhavan. Then group of 5 boys and 5 girls decided to visit Marine Drive. At about 1.45 p.m., they reached Marine Drive and sat on the parapet wall in groups. The prosecutrix and PW-2 Pramod were sitting hand in hand. It is in her evidence that at about 2.15 p.m. a watchman(PW-3 Sumit) approached them. He started questioning them about their alleged indecent behaviour. She and PW-2 Pramod protested. PW-3 Sumit asked them to accompany him to the police 18 apeal-485-06-i
chowky. At a distance of about 100-150 ft from the place where they were sitting, there is Meghdoot Police Chowky. The accused was sitting in the police chowky. PW-2 Pramod pleaded with the accused that they had not done anything wrong. Then, the accused threatened them that he would be charging them. Other boys and girls also came to police chowky. The accused asked all of them to leave the police chowky, else he would put PW-2 Pramod under arrest. Alarmed by such threats, all left police chowky except the prosecutrix, PW-2 Pramod and PW-3 Sumit. She further deposed that the accused asked for a notebook from PW-3 Sumit. Then he started recording her and PW-2 Pramod's name and address in the said note book. He then left the police chowky. The note book and writing were shown to the prosecutrix, which she identified and marked Exh. 12. After PW-3 Sumit left, the accused demanded Rs. 5,000/- from PW-2 Pramod. They had no money 19 apeal-485-06-i
except Rs.100/-. When PW-2 offered him whatever he had i.e. Rs. 100/-, the accused was annoyed saying that he was not a beggar. The accused asked PW-2 Pramod to arrange the amount within two hours and till that time the prosecutrix would wait in the police station. After PW-2 Pramod left the police chowky, despite her repeated requests to allow her to leave, the accused made her to sit in the police chowky. Thereafter, the accused left the police chowky just for a moment and came back and then he consumed liquor, which was in the water bottle. He latched the door from inside and sat near her. Then he kissed her. Despite her resistance he continued his advances towards her. She was slapped and threatened that she would be killed if she makes a noise. It is her version that the accused undressed her and undressed himself and then slept over her. Thrice he rapped her. She also deposed about the accused using condom. It is her version that she was 20 apeal-485-06-i
stunned, had become nervous, started weeping, closed her eyes and then fell semi-unconscious. While the accused was removing her nicker, it was torn and the strap of wrist watch was broken. After 10 to 15 minutes of this, she put on her clothes and came out. She saw her friend,PW-5 Tiwari(Babloo). She started screaming and divulged him the incident. PW-5(Babloo) was annoyed. He also started abusing the accused. Passers-by gathered. Police van arrived. In one police van she and PW-5 (Babloo) were taken to Marine Drive Police Station. On reaching there she lodged first information report at about 18.25 p.m., which was recorded by PW- API Tumbada.
17 The prosecutrix was shown clothes like black T-shirt, gray pant, nicker and slip which are articles 15 to 18. She identified them. She further identified the wrist watch Article 11, which was recovered from the 21 apeal-485-06-i
scene of occurrence.
18 The prosecutrix was required to face volley of questions during her stressful cross-examination, which consumed about 7 working days. The questions were put to her about location of the spot, the distance between local railway station and the spot, width of the road, how she crossed the road, size of the police chowky, number of windows to the police chowky and her home condition like vocation of her father, details about her joining Civil Defence course, the nature of training imparted in the Civil Defence course, period of acquaintance with PW-2 Pramod, number of trainees in Civil Defence course, their names, assignments she got from time to time as Civil Defence cadet, location of chowpaty, her visit to canteen for taking lunch and many more. This seems to be reason for the prosecutrix being required to stand in the witness box over a period of 8 days. 22 apeal-485-06-i
The prosecutrix was questioned on the issue like her date of birth. She had stated to police her date of birth as 20/8/1988 instead of 23/8/1988. Obviously, this is unnecessary as it is not the prosecution case that she was below 16 years of age and her consent had become immaterial. This reminds us of the provisions of section 138 of the Evidence Act, which gives defence right to cross-examine the witness. The objects of cross-examination are to impeach the accuracy, credibility, and general value of the evidence given in-chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. Section 138 does not mandate that cross-examination should be confined to the facts spoken during the examination-in-chief. The parties have liberty to elicit anything from the witness as long as it relates to the relevant facts. Irrelevant topics sometimes pursued 23 apeal-485-06-i
at great length, and persistence shown in going over the same ground again and again in the hope of making the witness to give discrepant statements must not be permitted. Control over the court proceedings by the Presiding Officer in such a situation is expected. Be that as it may. 19 The material omissions which the defence could elicit from this witness are : (i) the accused asking PW-3 Sumit to hand over the notebook and the accused writing therein names and addresses of the prosecutrix and the PW-2 Pramod; (ii) the accused demanding Rs.5,000/- and then PW-2 Promod leaving the police chowky to arrange for the same; (iii) accused wearing condom before committing rape on her. We are in agreement with the learned counsel for the defence that these are material omissions and for that necessary explanation must come from the prosecution. This makes us to scrutinize the 24 apeal-485-06-i
testimony of the prosecutrix closely and cautiously. 20 Before we discuss the aspect of these omissions and deliberate upon the explanation forthcoming from the prosecution, we shall discuss the medical evidence. On 21/4/2005 at about 10.20 p.m. medical examination of prosecutrix was conducted by the team of 3 doctors including PW-16 Dr. Chavan. Findings recorded by them at Exh.62 are reproduced below:
"IV. Physical Examination :
Built/Nutrition : Averagely built and poorly nourished.
Mental status: Sound, well oriented in time, space and person.
Gait : normal. Height:------- Weight:------- Teeth : Normal, not broken, space behind second molar ... Present/Absent.
V. Injuries over her private parts/-
breasts :
No external signs of injury over private parts or breast.
VI. Secondary sex characters :
Breasts: Well developed, Tannes stg. IV. Secretions: Nil.
Axillary Hair : Present.
Public Hair : Present.
Matting of public hair for F.S.I.Examination: 25 apeal-485-06-i
present/Absent/Preserved/Not preserved. VII. Abdominal Examination including
Anus: No tenderness over abdomen, no
guarding or rigidity no signs of injury. VIII. Local examination (Private Parts) : (a) Labia Majoria : Normal
(b) Labia Minora Normal.
(c) Clitoris : Normal.
(d) Vaginal Mucosa : mildly inflamed.
(e) Type of Hymen : patulous, Hymen :
Intact/Torn.
Position of Tears : No tears O'Clock. Age of Tears: -
Hymenal Orifice : Admits: One/Two
fingers.
(f) Any Injury to the Perineum : Nil.
(g) Any foreign body : Nil.
(h) Signs of STD : Nil.
(i) Discharge in any : (1) Vaginal smear: Swab made/Not made
(2) Blood for grouping : Collected/not collected.
Swabs collected as specimen (1) Labial (2)Urethral (3) Vaginal (4) cervical (5) Anal (6) Buccal (7) nail chippings (8) public hair (9) blood in S.T.D. bulb (10) Cervical smear. In response to the letter from the Investigating Officer, on 25/4/2005, the said team of doctors informed the Superintendent of J.J.Hospital about their opinion. The relevant extract from the letter at Exh. 63 is as under:
26 apeal-485-06-i
"This is with reference to above mentioned letters regarding rape victim Dhara Vinod Tank. Based on the victims' history &
physical examination, there is a possibility of sexual assault/intercourse.
Final opinion will be given on the basis of chemical analysis report."
On 25/4/2005 final opinion was reserved impending receipt of the report of the chemical analyser. After receipt of the same and on 17/6/2005, the final opinion was recorded at Exh. 64. It is as under : "With reference to above mentioned subject, after (going sic) through all above mentioned reports, we are of the opinion that there may be possibility of incomplete sexual intercourse."
21 Initial cross-examination of PW-16 Dr. Chavan is centered around format to be used while recording findings, presence of lady police officers and obtaining consent of the victim and conversation with the victim. In cross-examination, PW-16 gave some far reaching admissions, which we would like to reproduce hereunder:
27 apeal-485-06-i
"I admit that in column No.VIII(e) the hymen intact/torn, provides further dotted space, to write by the medical officer whether it is intact or torn. We are required to write age of tears in the column provided. I can not assign any reason, why in the column of age of tears no details are filled in by me(in Exh-62). I admit in Exh.-62 I have not stated anywhere, the hymen is elastic type. It is not true to suggest that I have written no tears in the column of position of tears, because hymen was not torn. I admit, in Exh-62 there is nothing to show, hymen was recently torn, it is not so mentioned." In further part of his cross-examination he states thus:
"27. Generally, absence of external injury over private part, no injuries on labia majora, labia minora, or absence of any seminal fluid in the vaginal swabs,
collectively will indicate that there is no sexual assault.
28. It is correct, generally if a minor girl or a virgin, is sexually assaulted she will have injuries on labia majora, or labia minora or on her private parts."
Then he denied the suggestion that the report of chemical analyzer in respect of vaginal swab or pubic matting and absence of injuries on labia majora or labia minora or absence of seminal fluid is suggestive 28 apeal-485-06-i
of the fact that there was no sexual assault. 22 The learned counsel for the accused is right in contending that the evidence of PW-16 Dr. Chavan that hymen was recently torn is after-thought. He is fortified in his submission as in the column provided for writing age of tears in the medical examination certificate Exh.-62, nothing was mentioned. Attention of the witness was drawn to this and he admitted having kept the said column blank. However, suggestion given to this witness that there was no tear of hymen and which is denied by the witness, has no foundation. While issuing the certificate printed word "Torn" was tick marked. In the evidence of this witness as well as in Exh.62, it has been categorically mentioned that hymen orifice admitted one finger. By inviting our attention to the evidence of the prosecutrix wherein she stated that she was raped thrice and the surface on which she was made 29 apeal-485-06-i
to lie was hard, it is contended by the learned counsel for the accused that this makes entire prosecution case improbable. According to him, it is difficult to believe that after having raped thrice and that too forcibly, absence of injury on her person and private parts is impossible and in turn this probablises the defence that nothing, of the sort as alleged by the prosecution, had occurred.
23 It is appropriate in this context to reproduce the opinion expressed by Dr. Mody in Medical Jurisprudence and Toxicology(22nd Edition) at page 503 about possible findings during examination of raped victim, particularly virgins, which reads thus: "In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small 30 apeal-485-06-i
tags of tissue."
24 The final opinion dated 17/6/2005 recorded by the team of 3 doctors indicates that there may be possibility of incomplete sexual intercourse is consistent with the above observations of Dr. Mody. It is suggestive of the fact that there was no complete penetration and therefore, hymen orifice only admitted one finger and there was no laceration of the hymen.
25 Now we shall proceed to discuss the evidence relating to medical examination of the accused. On 21.04.2005 at about 8.00 p.m. the accused was referred to Nagpada Police Hospital for his medical examination under request letter Exh. 68. PW-17 Dr. Bobade examined him at about 8.45 p.m.. Dr. Bobade obtained his written consent before he started examining him. On examination, the findings recorded by him are thus :
31 apeal-485-06-i
i) Smegma : Yellowish sticky secretion noticed behind glans in coronal sulcus which is collected by swab and sent to CA for vaginal epithelial cells.
g) Injuries on glans penis :- Epithelial layer behind the glans penis seen to be denuded all around the coronal sulcus. Red in colour. Tenderness present. Injury caused due to stretching and friction and looks fresh. 26 Blood sample was also collected. The report is at Exh. 69. On 11.05.2005 he received queries from the investigating officer vide letter Exh.70. He was requested to offer his clarification on the same. His finding, that the epithelial layer behind the glans of the penis was denuded around the coronal sulcus which was fresh and most probably caused due to friction during the intercourse/ vaginal penetration, does corroborate the testimony of the prosecutrix. In cross-examination, he admitted that against column - smegma the printed words "present/absent" were scored out. In fact this does not make any difference. While striking off the word "present" he 32 apeal-485-06-i
opined that "yellowish sticky secretion noticed behind glans in coronal sulcus which is collected by swab and sent to CA for vaginal epithelial cells". It is, therefore, clear that Dr. Patil wanted to convey that the smegma was absent and what he observed was written by him. He denied suggestion that at the instance of the Police he scored the words "smegma present". He admitted that the presence of smegma would indicate that in near past no intercourse was taken place. Thus there is no flaw in the testimony of Dr. Patil in his report at Exh. 69 and which he reiterated in Exh. 71. He answered the question as under : "1) Answer to the Q.No.1.
Smegma was not seen on the coronal
sulcus behind the glans of penis instead yellowish sticky secretions were noticed which is normally seen after sexual
intercourse.
2) Answer to the Q. No.2
The epithelial layer behind the glans of the 33 apeal-485-06-i
penis was denuded around the coronal
sulcus which was fresh and most probably caused due to friction during the
intercourse/ vaginal penetration.
Thus this witness has fully corroborated the version of the prosecutrix. When the circumstance of finding yellowish sticky secretion behind glans of penis was put to the accused(Q.237), he tried to explain by saying that he was a patient of heat and he was undergoing treatment of Dr. Rege. PW-17 Dr. Bobade explained in his cross-examination that in case of friction, there can be tenderness and redness on the glans. Nothing was suggested to him about the disease with which the accused was suffering nor it was suggested to him that finding of yellowish sticky secretion is not normal phenomenon, but it is because of some disease.
27 Now we are confronted with the question as to whether in the light of the medical evidence, testimony of the prosecutrix that she was raped thrice 34 apeal-485-06-i
appears credible. In our considered view, it is so and we find consistency between the evidence of prosecutrix and the medical evidence. PW-16 Dr. Chavan has stated that vaginal mucosa was mildly inflamed and on that basis while giving opinion on 25/4/2005, the possibility of sexual assault/intercourse was expressed. Because of negative report of the chemical analyser on 17/6/2005, it was opined that there may be possibility of incomplete sexual intercourse. In our considered view, this does not at all contradict the testimony of prosecutrix for the reason that possibly in all the three attempts, he could not penetrate completely. However, he slept over her and tried to penetrate and the prosecutrix while narrating this naturally stated that she was raped thrice. The prosecutrix was below 17 years and had appeared for 11th Standard examination. She is not a grown up lady. In the light of these circumstances her testimony is to be 35 apeal-485-06-i
appreciated. This is what is expected from the girl of her age. Moreover the place where the incident occurred and the position of the accused is relevant. It has come in the evidence that the accused had consumed liquor at that time. In such a situation it is normal for a person like accused to be apprehensive of the danger of being caught, which would make him unstable. Certainly one cannot be comfortable in such a situation. Anxiety and non-cooperation from the prosecutrix appears to be the reason of his inability to achieve complete penetration. 28 Explanation to section 376 clarifies that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. In [Wahid Khan vs. State of M.P.[(2010) 2 SCC 9], the Supreme Court reiterated the consistent view that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is 36 apeal-485-06-i
immaterial. The Hon'ble Supreme Court made reference to the opinion expressed by Dr. Mody in his Medical Jurisprudence and Toxicology(22nd Edition) at page 495 as well as to Dr. Parikh's Textbook of Medical Jurisprudence and Toxicology. Dr. Parikh defined the term "sexual intercourse" as under : "In law, this term is held to be mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
For the aforesaid reason, we are not in agreement with the learned counsel for the defence that the testimony of the prosecutrix with the aid of the medical evidence, does not disclose an offence of rape. Even assuming that theory of use of condom is afterthought, absence of semen in the vaginal swab is not the evidence of absence of sexual intercourse. Absence of seminal stains on the clothes, vaginal swabs etc. merely indicates that there was no 37 apeal-485-06-i
discharge nevertheless, it is not evidence of absence of rape. This is what precisely Dr. Mody in his Medical Jurisprudence and Toxicology(22nd Edition) at page 495 clarified.
"Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains."
29 Now, we shall deal with the evidence of PW-3 Sumit Pawar and examine whether his testimony corroborates the version of the prosecutrix. PW-3 Sumit is security guard attached to private agency. Services of security agency have been engaged by an Association of the Senior Citizen. They have been allotted duty of patrolling in the Marine Drive area. On 21//6/2005, his duty hours were 7 a.m. to 3 p.m. The accused was known to him. He had instruction 38 apeal-485-06-i
from the accused that whenever couples are seen making love or behaving indecently, the latter should be informed. He had mobile phone having number 9869274183. The mobile in possession of the accused was having number 9224132263. The version of this witness is that at about 2.30 p.m. he noticed the prosecutrix and a boy and as was instructed, he informed the accused. The accused asked him to bring them to police chowky. According to him, he asked the prosecutrix and said boy to follow him to the police chowky. Following his direction they both came to police chowky and saw the accused there. After entering the police chowky, the accused disclosed that he would charge the prosecutrix and PW-2 Pramod for behaving indecently or in obscene manner. The notebook which PW-3 Sumit was carrying with him was used by the accused to write down names and addresses of the prosecutrix and PW-2 Pramod. Thereafter, he was 39 apeal-485-06-i
asked by the accused to leave the police chowky on the pretext that recording of statement of prosecutrix would take much time. PW-3 Sumit collected his note book and since his duty hours were over, left the place. He identified the notebook Art.-4. The writing made by the accused has also been identified and marked Exh. 12. In cross-examination number of hypothetical questions were put to him. He was asked about location of the police chowky and the time required to walk between the police chowky and the place where the prosecutrix was found sitting. While answering various questions in cross- examination, it is transpired that he had no right to arrest anybody. His duty was to patrol in the area, to identify and drive away drug addicts and hawkers. For reaching to the place of duty he was required to travel by train and the bus. The attendance role is kept in Kalpana building before reporting for duty. He and other security guards were required to change 40 apeal-485-06-i
their clothes. In addition to him, two more guards were engaged to patrol the Marine Drive area. They were instructed not to harass innocent person. Thus, we find that major part of his cross-examination has no relevance to the facts in issue. His further part of the cross-examination shows that he had seen the prosecutrix and the PW-2 sitting on the parapet wall. To their left and right other boys were sitting. They were facing the sea. The place was exactly near fly over bridge. The accused had provided his mobile number to him and had instructed him to contact the former if he finds any couple sitting on the parapet wall. He contacted the accused at 2.45 p.m. and met him at 3 p.m. Then he was asked about the notebook. According to him, because the accused demanded notebook he gave it to him. He did not find any hitch in doing so. He did not feel odd because the accused called him to the police chowky. This witness was also required to face end number of 41 apeal-485-06-i
questions, which according to us are not germane to the facts in issue. Then it was suggested to him that the accused demanded a note book, which was lying on the table. He was confronted with the other writings in the notebook. It is seen that he is not the author of all the writings. This is for the reason that this note book is official and used by other security guards. An important fact coming through his mouth is that he learnt of the incident on the next day and then he went to the Marine Drive Police Station. There enquiry was done and his statement was recorded. He denied the suggestion that on 21/4/2005 he was not on duty. He also denied the suggestion that no instructions were given to him by the accused that whenever he would find couple sitting on parapet wall, latter should be informed. Then he was asked about the ownership of the mobile number. He explained that it was in the name of his cousin Ratnadeep Pawar. He then disclosed the 42 apeal-485-06-i
mobile number of accused. His cross-examination ended with the suggestion that the accused never provided him his mobile number. Despite searching and lengthy cross-examination, in our opinion, nothing has surfaced to discard the testimony of this witness. In the first information report Exh.13, there is mention of the fact that security guard had approached the prosecutrix and thereafter, she and PW-2 Pramod followed him to the police chowky. No attempt has been made in the cross-examination to point out that this witness has any animus with the accused or he had any reason to depose false against the accused. We find him wholly reliable and trustworthy.
30 Now, we shall proceed to discuss the testimony of PW-9 Ratnadeep Pawar. PW-9 Pawar is cousin of PW-3 Sumit. Both are residing together. Mobile number 9869274183 stands in his name. According 43 apeal-485-06-i
to PW-9 Pawar this mobile was purchased by him about one and half year back. Since he was not using it, he had given it to PW-3 Sumit. According to him, on 21/4/2005, this mobile was with PW-3 Sumit. In cross-examination, he clarified that he had purchased only SIM card and not the instrument. He was then questioned about the place of his work, salary which he receives, the documents submitted by him while purchasing the SIM card and the outstanding bill amount towards use of mobile. He admitted that the SIM card was handed over by him to PW-3 Sumit without obtaining any receipt from the latter. We find no flaw in the testimony of this witness. He appears to us reliable witness.
31 Prosecution examined PW-10 Dilip Tambe to point out that the mobile in possession of the accused was in fact purchased by him on 18/4/2005 in the name of this witness. PW-10 Dilip who is a police 44 apeal-485-06-i
constable attached to Marine Drive Police Station knew the accused. He deposed that in April, 2005 the accused had asked him whether he would like to stand surety for him against a loan, which he would be borrowing from Datt Seva Credit Society. PW-10 Dilip consented for this and handed over to him zerox copy of the ration card, his identity card and electricity bill. He never purchased SIM card bearing mobile No.9224132263. In cross-examination, it is transpired that the reason for borrowing loan and as stated to him by the accused was the pregnancy of his wife and for that he needed money. There is absolutely nothing in the cross-examination to discard this version. Being a colleague he believed the accused and parted with necessary papers, which were used by the accused to buy mobile. 32 To establish the link relating to ownership of the mobile other witness examined is PW-15 Amrutlal 45 apeal-485-06-i
Nandu. He owns a shop in the name and style as Rahul Electronics, which is near Marine Drive Police Station. In his shop mobile phones are kept for sale. His testimony shows that on 18/4/2005 accused came to his shop and disclosed his intention to purchase Tata company mobile. He filled up the form. He supplied zerox copy of the ration card and identity card of PW-10 Tambe. He brought the signature of PW-10 Tambe on the form and handed over to this witness. PW-15 Amrutlal then gave delivery of mobile instrument no. K-112 of Tata Company. He had issued bill for the same. Its carbon copy is marked as Exh.
58. In cross-examination, it is revealed that his statement was recorded in December, 2005. Several police officers used to visit his shop. On 22/4/2005, he read the news of the incident in the newspaper. After reading the news item he on his own did not approach the police to inform that mobile seized in the case was sold by him. Except delay in recording 46 apeal-485-06-i
of his statement, his testimony is trustworthy. In further part of his cross-examination, it has surfaced that on the earlier two occasions the accused had visited his shop. However, he could not recollect as to how many mobile phones he had sold in the month of April, 2005. It is pertinent to note that this is not the only isolated statement on the basis of which some inference is to be drawn. Mobile of the said number was seized from the possession of the accused. The person in whose name i.e. PW-10 Tambe, the mobile was purchased has been examined. We have already discussed his evidence. 33 Decisive evidence relating to the call made by PW-3 Sumit to the accused on the day of occurrence is that of PW-14 Yogesh. This witness deposed that he had worked with Tata Tele Communication Service. The record of incoming and outgoing calls is stored in a hard disk. They have facility of taking print-outs 47 apeal-485-06-i
showing incoming and outgoing calls. The mobile no. 9224132263 is of Tata Mobile. After receipt of request letter from the police for seeking information of incoming and outgoing calls from the aforesaid mobile number, he arranged to take print-outs. In the court, he had produced print-outs which are collectively marked Exh.-55. His cross-examination shows that he had taken training of running programmes like tally, web-designing and M.S.Office. About the date of taking print outs he expressed his ignorance. In fact such details are insignificant. Then, he was asked about what technology Tata is using to run this system. Exh.55 collectively are the details supplied by this witness. The mobile no. 9224132263 stands in the name of Dilip Tambe i.e. PW-10. On 21/4/2005 at 14.45 hours there was a call from mobile no.9869274183 to mobile no. 9224132263. On the same date at 14.58 hours there was second call. The duration of the first call is 56 48 apeal-485-06-i
seconds. Duration of the second call is 8 seconds. This amply corroborates the version of PW-3 Sumit that after he saw the prosecutrix and the boy sitting on the parapet wall, he contacted the accused. After he carried them to police chowky, he again informed the accused.
34 The prosecutrix, PW-2 Pramod and PW-3 Sumit consistently spoke about the accused using the notebook for writing the names and addresses of the prosecutrix and PW-2 Pramod. The accused disowned the authorship of relevant writing in the notebook Article-4. During the course of investigation, specimen writing of the accused was obtained. The notebook was seized from the possession of the PW-3 Sumit on 22/4/2005. PW-11 Pankaj is the panch witness. He deposed about seizure of the notebook on 22/4/2005 at 8 p.m. According to him, one other panch Mohd. Ayub and PW-3 Sumit were present in 49 apeal-485-06-i
the office of the C.I.D. It is his version that the person by name Sumit Pawar(PW-3) produced the note book containing 84 pages. It was seized under panchanama Exh. 45. On page-80 there is relevant writing bearing Exh.12. The entire notebook is marked Exh.46. In cross-examination, it is revealed that he is a estate agent having his office in Matunga. At the relevant time, he was proceeding towards V.T. Station. That time police constable called him to act as a panch. When he visited the office of C.I.D., he was explained about the purpose for which he was called. The entire process of seizure and writing panchanama was over within 40-45 minutes. He denied the suggestion that no panchanama was drawn in his presence. PW-27 API Mukhedkar made seizure of the notebook on 22/4/2005. After taking possession of the same, he pasted on the wrapper the lable of the panchas signature and sealed it. PW-20 Anil Mahabole, PI attached to DCBCID Unit-I obtained 50 apeal-485-06-i
specimen writings of the accused on 25, 26, 27 April, 2005. Specimen writings are in 27 sheets. These sheets were marked Exh.98 collectively. PW-24 Dilip is hand writing expert. He had experience of examining number of documents and deposing in the court. According to him, the documents pertaining to C.R.No.101 of 2005 registered at Marine Drive Police Station were received under covering letter no.74 of 2005 on 13/5/2005. Notebook containing 100 pages was in sealed cover. Original letter was brought by him in the court, which is at Exh.84. After receipt of the documents including specimen writing at Exh.46, he carried preliminary examination. Writings at page 80(Exh.12) were encircled by red ink and marked as Q-1. The specimen writings were marked as X-1 to X-9 by a green pen. He examined these documents under various lighting conditions and magnification and also obtained enlarged photo films of the questioned writings and the specimen writings. He 51 apeal-485-06-i
then completed final examination and recorded his opinion to the effect that "the red encircled English writing marked as Exh.Q-1 when compared with those on the Exh. X-1 to X-9 shows individual similarities which are indicative of their common authorship." The opinion dated 30/6/2005 is at Exh.85. This witness is subjected to extensive cross-examination. He refuted the suggestion that since he has attached to the office of C.I.D. crime Maharashtra State, he has given positive opinion showing similarities in the disputed and specimen handwritings. Next part, of his cross-examination is about the factors which are considered while determining the similarities like pen, pressure, curve, shading, pen position, writing slant, pen pause etc. He clarified that despite the possibility of variations due to such factors, individual characteristic of a person remains the same. In cross- examination, he was asked to produce the outer envelop and the same was produced and is at Exh. 52 apeal-485-06-i
86. As regards non-comparing all the 27 specimen writing, his answer is, only 9 sheets of specimen writing were found sufficient for examination. He denied the suggestion that he did not examine any document pertaining to this case. Evidence of this witness is free from doubt. We have no hesitation in accepting the final opinion Exh.85 and holding that this supports the prosecution case that to threaten the prosecutrix and PW-2 Pramod, the accused had used the notebook to write their names and addresses.
35 The learned counsel for the accused submitted that the prosecution did not adduce cogent evidence to prove that specimen writing of the accused were taken. There was unexplained delay in forwarding specimen writing to the handwriting expert, he argued.
36 Evidence on the record suggests that note book 53 apeal-485-06-i
article-4 with questioned writing Exh.12 was seized on 22/4/2005 before panchas vide panchanama Exh.45. Specimen writing of the accused were obtained on 23, 24 and 25 April, 2005. For that two panchas namely Akash Divan and Anwar Ahmad were called. These sheets are at Exh. 98(collectively). These 27 sheets are also signed by the accused. Admittedly none of the panchas has been examined. PW-27 API Mukhedkar deposed that specimen writings were obtained by PW-20 PI Mahabole in his presence. It is surprising that PW-20 PI Mahabole did not whisper a word about this. PW-27 API Mukhedkar in his cross- examination admitted that none of the 27 sheets of specimen writings (S1 to S27) bear his signature. The learned Additional Sessions Judge in para-92 of his judgment made passing observations about evidence led by the prosecution on the point of obtaining specimen writing of the accused. There is one more flaw which relates to delay in despatch of questioned 54 apeal-485-06-i
and specimen writing to the handwriting expert. PW-26 Pol despatched this writing on 13/5/2005 under Exh.84. When asked about delay in forwarding these documents to the expert he could not assign any reason. On careful consideration of this part of the prosecution case, we do not find any doubt about authorship of the purported specimen writing of the accused. No doubt, it was expected of the concerned I.O. to forward the questioned and specimen writing to the expert without any loss of time. Even apart from this, there is consistent evidence of PW-1- prosecutrix, PW-2 Pramod and PW-3 Sumit, who had seen the accused writing in the note book. They identified his writing at Exh.12. Under section 67 of the Evidence Act, amongst normal methods of proof of signature and handwriting, one method is to call the person in whose presence the document was signed and written. There being cogent evidence brought on the record particularly that of PW-3 Sumit, 55 apeal-485-06-i
to fix authorship of questioned writing (Exh.12), we find no difficulty in holding that author of the questioned writing is none other than the accused. 37 We shall take up for discussion the deposition of PW-2 Pramod. He deposed about his working in the Civil Defence Academy and in turn he coming in contact with the prosecutrix. On 21/4/2005, he had been to Civil Defence College to collect his allowances. Then he joined group of boys and girls and accompanied them to Marine Drive. When he and the prosecutrix were sitting hand in hand on the parapet wall of the Marine Drive sea face, one watchman(PW-3 Sumit) approached them and asked them what was going on. He retaliated by saying that they were doing no wrong and he asked the said PW-3 Sumit about latter's identity. He further deposed that on asking by PW-3, Sumit he and the prosecutrix went to the police chowky. Their other friends who were 56 apeal-485-06-i
sitting around also joined them in the police chowky. He had a talk with the accused who was sitting in the police chowky. The accused rebuked him and the prosecutrix by saying that "what they were doing. Didn't they get any other place." The accused asked his other friends to leave or else he would detain him and the prosecutrix. He further deposed about the accused telling them that they would be charged and for that he asked notebook from PW-3 Sumit. The accused noted down names and addresses and then demanded Rs.5000/-. PW-2 Pramod had Rs.100/- with him which he offered. The accused got annoyed and said that he was not a beggar. PW-2 Pramod left police chowky to arrange for Rs.5000/- asking the prosecutrix to wait. It is in the evidence that the accused did not allow the prosecutrix to leave the police chowky. By the time he could arrange the amount of Rs.3000/- to 3500/-, it was 7.30 p.m. When he returned to police chowky, he saw crowd of people 57 apeal-485-06-i
gathered there. From them, he learnt that one girl was raped by the police constable. He then rushed to the police station where he saw the prosecutrix sitting. On seeing him, the prosecutrix hugged him and started weeping by saying that she was ravished by the police constable. Then his statement was recorded on the same night. He then spoke about the test identification parade which was carried out on 5/6/2005. At this stage, considering the facts and circumstances of the case, we are of the opinion that holding of test identification parade was not at all necessary. This is for the reason that the accused did not dispute his duty as a Beat Marshal on 21/4/2005. Events like he saw the prosecutrix and a boy (PW-2 Pramod) in the Marine Drive area, arrival of the police van, he, prosecutrix and the PW-3 Tiwari being carried to the police station point out that identity of the accused was never an issue or could ever be an issue. 58 apeal-485-06-i
38 This witness was also subjected to lengthy cross- examination and entire deposition runs into 43 pages. The questions which he faced in the cross- examination were about he joining Civil Defence Academy, duty which he was performing, allowances admissible to him, the date since when he was acquainted to the prosecutrix, location of chowpaty, duties performed by him, duties of assisting police, bandobast duty at the time of festival etc. He was to answer the questions as to why he did not approach his parents or higher police officer when he was asked by the accused to arrange amount of Rs.5,000/-. In a given situation, it may be seen that he and his friend i.e. prosecutrix were made to believe that they had done something wrong and for which they should suffer. He was required to deal with a person in Khaki. This was the situation in which a boy like PW-2 Pramod and the prosecutrix had to completely surrender to the dictates of the person in authority. 59 apeal-485-06-i
They both were very much concerned about keeping the incident, although minor, secret from their parents. As it normally happens and having regard to human conduct, persons like prosecutrix and the PW-2, would sense a danger of their parents coming to know about such type of incident. It, is therefore, too much to expect from PW-2 Pramod to have complained to the superior police officer or sought help of the parents. As a normal human being he thought it fit to arrange for money and get rid of the situation. His anxiety was to see that the prosecutrix goes out of the police chowky rather than thinking to do anything else. We therefore, find the conduct of the PW-2 Pramod as natural and this very factor makes his testimony credible. During his cross- examination he was put too many questions which according to us are insignificant. Many of them are hypothetical in nature. His explanation as to the places which he was required to visit to arrange for 60 apeal-485-06-i
the amount are all probable. It is pertinent to note that he travelled up to Ville Parle and Andheri and this was the reason that he could return to police chowky only after two hours, although, he had assured to the accused and the prosecutrix that he would be arranging the amount within 10 minutes. He was asked as to why he did not insist his single friend to lend him Rs.5,000/- and his answer that he was at the receiving end and was supposed to accept whatever was given to him, appears natural. Many more questions of this nature were put to him and his answers are rational. He was confronted with the statement made by him before the police on 21/4/2005 which is marked 'A' wherein he had stated that he reached Marine Drive Police Station running. In cross-examination he stated that at about 7.30 p.m. on reaching police chowky at about 7.30 p.m. he did not find the prosecutrix and therefore, he engaged taxi to travel from police chowky to Marine 61 apeal-485-06-i
Drive Police Station. It seems that when one says that he went to some place running, it must be understood in the context in which he intended. The natural meaning is without loosing time he reached at the particular place irrespective of the conveyance used for covering the distance. Therefore, such discrepancies which are natural do not in any manner damage credibility of the witness. He denied the suggestion that no amount was demanded by the accused nor he had gone out to arrange for the amount. It was also suggested to him that at the instance of the prosecutrix he deposed false. While explaining incriminating circumstances which were put to the accused under section 313 of the Code of Criminal Procedure, particularly, Question No.86, he put-forth a specific case. According to him, "PW-2 and PW-1 were engaged in sexual intercourse in the parking slot. I questioned him. The boy PW-2 became arrogant to me. He challenged me. 62 apeal-485-06-i
Consequently, I called police vehicles." It is surprising to note that during cross-examination of this witness, nothing of this sort was suggested. On the contrary, it was suggested to him that on 21/4/2005 he had not gone to Marine Drive with his friends. After having considered the deposition in the light of the surrounding circumstances, we are of the view, that he is reliable witness. Absolutely, he has no grudge against the accused. The circumstances that he was not at the scene of occurrence when the police mobile van arrived, his return to the spot at 7.30 p.m. and then he rushing to the Marine Drive Police Station where his statement was recorded are clinching enough to make, not only his testimony but entire prosecution case, credible.
39 Now, we shall discuss the deposition of PW-5 Tiwari(Babloo). The prosecutrix was questioned about her acquaintance with him. She replied that she 63 apeal-485-06-i
alone or sometime with her parents used to visit the stall where the PW-5 Tiwari used to work. She knew him as "Babloo" and not by his real name. There was an attempt by the defence to point out that their relations were very close. In our view this is irrelevant.
40 PW-5 Tiwari deposed about he working as a salesman in the shop of one Akbar Ali. The prosecutrix as a customer used to visit his stall and hence, he knew her. On the day of incident he had been to his shop to join his duty. However, he was asked by the owner to join on the next day because he had returned from long leave. He had his friend in Meghdoot building. Admittedly, this Meghdoot building is abutting Marine Lines Chowky. Therefore, he came to Meghdoot building but could not meet his friend. When he was passing from near the police chowky, he heard the screams of the prosecutrix. The 64 apeal-485-06-i
prosecutrix disclosed him that she was raped by the police constable sitting in the police chowky. He was annoyed. He started shouting. Passers-by started gathering and joining him in cursing the police constable. It is in the evidence that he was the accused who informed the control room. This is evident from the evidence of PW-6 Santosh-wireless operator and the entries made by him at Exh.37 and 37-A.
41 Then this witness spoke about the arrival of the police van and he and the prosecutrix being carried to the Marine Drive Police Station in police van. On reaching there at about 7 p.m. his statement was recorded. Undoubtedly, he is a chance witness. Therefore, his testimony is required to be scrutinized closely. Number of questions were put to him regarding his acquaintance with the prosecutrix. Defence was right in searching for reason as to how 65 apeal-485-06-i
the prosecutrix who was one amongst the thousands of customers visiting the stall, had come close to this witness. He has answered by saying that the prosecutrix used to attend his shop sometimes alone and sometimes with her parents. He did not know names of her mother and father. Nor he could recollect last visit of the prosecutrix to his shop. He had no occasion to meet the prosecutrix outside. Her visit to the shop was strictly for making purchases and not to meet him. We find nothing unusual in this. Considering they being of the same age they entering into casual talk and getting familiar is quite natural. The next thing highlighted in the cross-examination is about his presence nearby the spot at the time of incident. He was asked as to why he did not contact the owner of the shop on the telephone and sought his permission to join duty instead of he simply visiting the shop. There appears nothing unusual in he visiting the place of his work since he had returned 66 apeal-485-06-i
from his native place and was without any work. Many questions were put to him about his conversation with the owner of the shop relating to his joining the duty. Certainly, an attempt was to show that neither he had come to Churchgate area nor he had gone to Meghdoot building to see his friend. Even assuming the evidence of this witness as artificial, the fact remains that when mobile van arrived, he was very much there. Thereafter he alongwith prosecutrix boarded the said mobile van and reached at the Marine Drive Police Station where his statement was recorded. Therefore, although he is a chance witness, his presence on the spot is proved not by his testimony but by the testimony of the police officers who had seen the prosecutrix and this witness on the spot and then they were carried to the police station. The other clinching circumstance is, could it have been humanly possible to plant this witness and immediately record his statement by 67 apeal-485-06-i
constructing a story that prosecutrix used to visit his stall and hence was known to him. When judged in the light of the surrounding circumstances, the evidence of PW-5 appears consistent in all material particulars with the evidence of the prosecutrix and PW-2 Pramod.
42 We do not find any need to make reference to the evidence adduced by the prosecution relating to dispatch of clothes of the prosecutrix and the accused, to the chemical analyser since findings of the chemical analyser are in negative. However, there is need to discuss evidence regarding dispatch of the water bottle attached from the spot in which alcohol was found, collection of the blood sample of the accused and report of the chemical analyser. This is necessary to verify testimony of the prosecutrix wherein she claimed that the accused had consumed liquor before she was sexually assaulted. 68 apeal-485-06-i
43 PW-27 API Mukhedkar, under covering letter Exh. 91- despatched seized articles including blood sample of the accused to Chemical Analyser. The report from Forensic Science Laboratory dated 6.5.2005 indicates that liquid in bottle with label of "Bada Bisleri" was found to contain ethyl alcohol. The blood sample of the accused found to contain 0.140 milligrams ethyl alcohol. Report is at Exh. 92. The learned trial Judge disbelieved the blood sample report by assigning reason that, although, blood sample was collected by PW-17 Dr.Bobade on 21/4/2005, it was despatched on 23/4/2005 by PW-27 API Mukhedkar. According to learned trial Judge, prosecution did not adduce evidence to point out as to where blood phial was lying for two days. He therefore, acquitted the accused of an offence under section 85(1)(a) of the Bombay Prohibition Act. We are not interfering with this finding. Therefore, FSL report relating to blood 69 apeal-485-06-i
sample will have to be kept out of consideration. However, report of FSL that "Bada Bisleri" bottle was found to contain ethyl alcohol supports the version of the prosecution that the accused had consumed liquor- which was in the water bottle. 44 Mr. Wagh, learned counsel for the accused submitted that on the touch-stone of probability the evidence of prosecutrix stands nowhere. She is college going girl, trained in Civil Defence course could have never allowed the accused to take liberty of her. Having regard to the place, time and the fact that her friends were with her, the prosecutrix would never have remained mute spectator while she was being sexually assaulted. Her version that she was raped thrice proved to be false when considered in the light of medical evidence and the negative evidence of the FSL Vital omissions in the FIR are also grounds to discard her testimony. To fortify his 70 apeal-485-06-i
contention that the case of prosecution as a whole is liable to be disbelieved for the various flaws of serious nature and infirmities, he invited our attention to the few recent decisions of the Supreme Court. In the case of Tameezuddin @ Tammu vs. State of (NCT) of Delhi(AIR 2009 SC(Supp) 2519. It was held that -
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable."
In this case, allegations of rape were levelled by a married lady having children. Incident had occurred in the factory owned by her ex-employer. She and her husband had gone to the said place to recover her past dues. Her husband had accompanied her but the accused had sent him to buy something and meanwhile committed rape on her. During trial 71 apeal-485-06-i
number of flaws surfaced including non-examination of material witnesses.
45 In Laliram and anr. v/s. State of M.P. [(2008) 10 SCC 69], the Supreme Court observed that- "Where allegation is of rape by many
persons and several times but no injury is noticed that certainly is an important factor. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. If the court finds it difficult to accept the version of a
prosecutrix on the face value, it may search for evidence direct or circumstantial." It was a case of gang rape and had claimed that at the time of incident, she was 4 months' pregnant. However, the doctor stated that she was actually on menstruation period. There were allegations of she having had dragged to a considerable distance and had spoken about the scratches on the back and other parts of the body.
46 In Rajoo & ors. Vs. State of M.P.[AIR 2009 72 apeal-485-06-i
SC 858], it is observed that -
"The evidence of prosecutrix must be
examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her
statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false
allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of
accused are involved."
It was a case of gang rape involving four accused persons. She was carried on a scooter and allegations were that four accused turn by turn committed rape on her and thereafter she was dropped at some distance. After examining the evidence, the Supreme Court observed that - "On an examination of the entire evidence, we are of the opinion that it would be difficult to conclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth 73 apeal-485-06-i
and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins."
47 In Narayan @ Naran v/s. State of Rajasthan [2007 AIR SCW 2732], the Supreme Court observed that (Head note):
"Prosecutrix stating in FIR that she was raped thrice by accused-Her evidence
however showing that she was raped only twice- No attempt made by prosecutrix to get down from tractor on its way through many villages - Prosecutrix on other hand stating that she sat happily in tractor- No injury found on her body or private parts - Statement of prosecutrix that she narrated entire incident to lay in whose house she slept on fateful night - Not supported by that lady- Testimony of prosecutrix full of material contradictions- Conviction cannot be based on it."
48 In criminal cases duty is cast upon the court to examine the evidence in the light of the surrounding circumstances. The expression "proved" occurring in section 3 of the Evidence Act means :
"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man 74 apeal-485-06-i
ought, under the circumstances of the
particular case, to act upon the supposition that it exists."
Thus, the definition of "proof" centers around probability. It means such evidence as would induce the reasonable man to come to the conclusion. In this context, it must be understood that beyond- reasonable-doubt is a fair doubt based upon reason and common sense. It should have its foundation in the prosecution case itself. Therefore, in the matter of appreciation of evidence, the facts and circumstances of the particular case are decisive factors. In Laliram v/s. State of M.P.(supra), the Supreme Court observed that -
"As rightly contended by learned counsel for the appellants, a decision has to be
considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence." (emphasis supplied) 49 As regards finding of wrist watch on the spot, it is pointed out by the learned counsel for the accused 75 apeal-485-06-i
that this evidence is concocted. His submission is based on the fact that the wrist watch is not appearing in the photographs. The PW-12 Anant- panch to the spot panchanama stated that photographs were taken prior to drawing of spot pachanama. He therefore, contended that wrist watch has been planted. It is the version of PW-23 ACP Sharma that on the spot wrist watch and broken hook were seen. Even assuming that the panch is correct, it cannot be concluded that the wrist watch was not on the spot. Area of the police chowky is 6ft x 5 ft. The possibility that the photographer missed the particular spot where the wrist watch was lying is not ruled out. This is so considering the size of the article.
50 With the assistance of learned counsel for the parties, we have undertaken close scrutiny of depositions of the witnesses examined in this case. 76 apeal-485-06-i
On the touch-stone of probability and in the light of surrounding circumstances, the prosecution case appears credible. There is overwhelming evidence to lend corroboration to the version of prosecutrix like medical evidence suggesting inflamed vaginal mucosa, findings recorded during the examination of the accused, evidence of PW-3 Sumit supported by authorship of the writings in his notebook, evidence of PW-2 Pramod and the testimony of the chance witness PW-5 Tiwari. The wrist watch, water bottle containing ethyl alcohol found on the spot and the confirmation received from the FSL about presence of ethyl alcohol further lends corroboration to the version of the prosecutrix. The evidence of possession of the mobile phones by the accused and PW-3 Sumit and evidence of PW-14 Rupesh make the prosecution case probable. It establishes the presence of PW-3 Sumit on the scene of occurrence thereby establishes genesis of the incident. 77 apeal-485-06-i
51 On careful consideration of the evidence brought on the record, in our view, the prosecution has proved beyond reasonable doubt the charges levelled against the accused. The learned Additional Sessions Judge has correctly weighed the evidence and rightly concluded that the accused is guilty of offences punishable under sections 342, 506(II) and 376(2)(a) & (b) of I.P.C.
52 This takes us to consider the appeal filed by the prosecution to enhance the sentence imposed upon the accused. Learned APP submitted that the accused who had a duty to protect people, particularly, women, children and helpless has betrayed the confidence reposed in him and brought bad name to the entire police force. According to him, the learned Additional Sessions Judge committed error in not awarding sentence of imprisonment for 78 apeal-485-06-i life. As against this it is contended by the learned counsel for the accused that there was no justification for the learned Additional Sessions Judge to award more than minimum sentence provided under the law.
53 A crime is harmful for society as a whole although its immediate victim may be an individual. In the matter of fixation of punishment for any particular crime the Court should take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. Desire to curb an evil should not carry the Court away from its judicial mind and the sentence should not be so unduly harsh as to defeat the ends of justice.
79 apeal-485-06-i
54 The learned Additional Sessions Judge dealt in detail with the aspect of quantum of sentence. It was contended before him that the accused is the only earning member in his family. He has his wife, child, mother and unmarried sisters to look after. Therefore, it was submitted that he be awarded less than the minimum sentence. This was opposed by the learned Special Public Prosecutor. Considering the rival submissions, the learned Additional Sessions Judge awarded sentence of 12 years R.I. which according to us does not call for any interference. 55 As regards appeal against acquittal of the accused u/s. 85(1)(a) of the Bombay Prohibition Act, it is submitted that in the blood sample of the accused 0.140 milligrams alcohol was found. The learned Additional Sessions Judge in para-99 observed that the link between sample collected and the sample reached to FSL is not established. We do not find any 80 apeal-485-06-i
justification to interfere with this finding. 56 In the light of foregoing reasons, we do not find any merit in both these appeals. Hence, both the appeals are dismissed.
(M.N.GILANI, J) (P.V.HARDAS,J)
No comments:
Post a Comment