The victim does not, in any
manner, said that the accused had performed sexual
intercourse for two and half hours.
If the evidence of PW 2
– victim is perused, she has admitted that incident, which
commenced at 2.30 a.m. lasted for 2 to 2 1⁄2 hours i.e. till 5
a.m. In any event, since the victim was drowsy, her
perception of time would be only by approximation and any
exaggeration in stating the time would not necessarily
mean that the appellant had performed the forcible sexual
intercourse for 2 to 2 1⁄2 hours. According to us, therefore,
the approximate time of the incident stated by the victim
i.e. the duration of the incident of 2 to 2 1⁄2 hours, though
appear to be incredulous, would not materially affect the
credibility of PW 2 – victim.
The duration of the incident
would not in any manner whittled down the evidence of the
prosecutrix that she had been ravished by the appellant.
The duration, as stated by her, obviously, would be affected
by her mental state as she was drowsy.
Dr. Vishal Baban Wanne
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 203 OF 2013
Versus
The State of Maharashtra
CORAM: P. V. HARDAS &
P. N. DESHMUKH, JJ.
Pronounced On : SEPTEMBER 21, 2013
Citation;2013 ALL M R(cri)3729
The appellant, who stands convicted for an offence
punishable under Section 376 (2)(d) of the Indian Penal
Code and sentenced to imprisonment for life and to pay a
fine of Rs.1000/-, in default of which to undergo Simple
Imprisonment for two months, by the District Judge – 5 &
Additional Sessions Judge,
Thane, by judgment dated
28/01/2013 in Sessions Case No.107 of 2011, by this appeal
questions the correctness of his conviction and sentence.
This Court, while deciding the Criminal
March 2013.
This Appeal was admitted by this Court on 22 nd
2.
Application No. 336 of 2013 filed by the Appellant seeking
suspension of the substantive sentence of imprisonment
and his enlargement on bail, pending the decision of the
Appeal, permitted the Appellant to file a private paper-book.
This Court, by the order dated 11th July 2013 directed that
after the paper-book was filed, the Appeal be listed before
the Court for final hearing.
Accordingly, this Appeal was
listed before us for final hearing.
3.
Facts in brief, as are necessary for the decision of
this Appeal, may briefly be stated thus :-
PW-12 API Harshvardhan Barve, who on 17.10.2010
was attached to the Vashi Police Station and was on night
duty as Station House Officer, was informed by one Saha at
about 8.55 a.m. about the incident, which had occurred in
the Lotus Hospital at Vashi. Said Saha requested PW-12 API
informed
the
Senior
accordingly
Barve to accompany him to said Hospital. PW-12 API Barve
P.I.,
namely,
PW-11
Rajkumar Chafekar and WPSI Choudhary about the incident
and also requested them to come to the Lotus Hospital.
PW-12 API Barve gave a letter at Exhibit 39 to the Medical
Officer for ascertaining whether PW-2 - victim was in a
condition to give her statement.
Accordingly, PW-3 Dr.
Abhijit Bagul endorsed that PW-2 – victim was in a condition
to give her statement. In the presence of WPSI Choudhary,
PW-6 Narayan, husband of victim, PW-3 Abhijit Bagul, the
statement of PW-2 victim was recorded. Signature of the
victim was obtained on her complaint. The complaint of
PW-2 victim is at Exh. 30.
Upon completion of the
recording of the statement, an endorsement of PW-3 Bagul
was also obtained on the complaint at Exh. 30. Thereafter,
in the presence of panchas, a scene of the offence
panchnama vide Exh. 24 was drawn and from the scene of
the incident two bed-sheets came to be seized.
In the
presence of panchas, vide Exh. 25, the clothes of the victim
were seized. On the basis of the complaint, at Exh. 30, an
offence vide Crime No.449 of 2010 under Section 376(d) of
the Indian Penal Code was registered.
PW-11 Senior Police Inspector Rajkumar Chafekar,
who was also attached to the Vashi Police Station and who
was entrusted with the investigation of the said crime,
forwarded the seized articles to the Chemical Analyzer on
19.10.2010 under requisition at Exh. 67. On the same day,
other articles had also been forwarded to the Chemical
Analyzer under requisition at Exhibit 69.
custodial
interrogation
on
21.10.2010,
During the
the
Appellant
expressed his willingness to produce the bottle of the
injection “Mezolam” which has been concealed in the I.C.U.
Accordingly, a memorandum was drawn in the presence of
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The accused led the police and the
panchas at Exh. 57.
panchas to the Lotus Hospital and produced a bottle of the
injection “Mezolam” which had been concealed behind rack
in the I.C.U. The said bottle of injection was seized in the
presence of panchas at Exh. 58. On 28.10.2010 a request
was made to the Judicial Magistrate First Class, Vashi, for
recording 164 statement of PW-10 Indira and accordingly,
ig
164 statement of PW-10 Indira was recorded at Exh. 63.
After receipt of the reports of the Chemical Analyzer at
Exhs. 49, 72 and 73, a charg-sheet against the Appellant
4.
was filed.
On committal of the case to the Court of Sessions,
Trial Court, vide Exh.19 framed charge against the Appellant
for an offence punishable under Section 376(2)(d) of the
Indian Penal Code. The Appellant denied his guilt and
claimed to be tried. Prosecution, in support of its case,
examined 12 witnesses. The defence of the Appellant was
of denial.
The Trial Court, upon appreciation of the
evidence, convicted and sentenced the Appellant as afore-
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stated.
5.
In order to effectively deal with the submissions
advanced before us by the learned Counsel for the
Appellant and the learned APP, it would be useful to refer to
the evidence of the prosecution witnesses.
PW-6 Narayan, husband of the victim, states that
ig
6.
on 16.10.2010 at about 9.00 a.m., he along-with his wife
PW-2 victim, his two sons and his sister-in-law, had visited
Durga Mata Puja organized at the Modern College Ground.
At about 9.30 p.m., the victim complained of low blood
pressure and therefore, she was admitted in the Lotus
Hospital. According to PW-6 Narayan, the victim had been
admitted by PW-7 Dr. Tadvi. The Appellant was the R.M.O.
in the Lotus Hospital. At about 10.00 p.m., the condition of
the victim deteriorated and therefore, the victim was shifted
to the I.C.U. by the Appellant. The Appellant informed PW-6
Narayan that the victim would be kept under observation
and further tests would be done on the next day.
The
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Appellant allotted one bed in the General Ward to PW-6
Narayan, while his brother-in-law, who was in the Hospital at
about 12.30 a.m. left the Hospital. PW-6 Narayan met his
wife (PW-2 victim) at about 1.30 a.m. and the victim
informed
PW-6
Narayan
that
she
was
having
some
breathing problem. PW-6 Narayan, thereafter, went to the
General Ward, where a bed had been allotted to him.
ig
According to PW-6 Narayan, during the night on two
occasions he had been to the I.C.U. but noticed that the
door was closed from inside. He tried to peep inside the
I.C.U., but he was unable to see anything as the curtains
had been drawn from inside. As the door had been closed
from inside, he could not enter the I.C.U. also.
PW-6
Narayan, therefore, returned back to the General Ward and
slept. At about 7.00 a.m. he went to see the victim in the
I.C.U. The victim asked him as to why he had not come to
the I.C.U. to see her. PW-6 Narayan questioned his wife as
to why she was asking so and as the victim, by pointing a
finger to the Appellant, informed
PW-6 Narayan that the
Appellant had sexual intercourse with her for the whole
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PW-6 Narayan, thereafter,
Appellant and caught him.
night. On being so informed, PW-6 – Narayan slapped the
telephoned his brother-in-law and on the brother-in-law
coming to the Hospital, PW-6 Narayan informed him about
the incident.
Meanwhile, the other three Doctors i.e. Dr.
Amit, PW-3 Dr. Abhijit Bagul and Dr. Chemburkar had arrived
the
victim
had narrated
to
them
and
the
incident.
Hospital with the Police.
ig
Meanwhile, the brother-in-law of PW-6 Narayan reached the
In cross-examination, PW-6 Narayan has stated
7.
that he does not know any lady by name Anita Raju Kurmi.
He has also stated that he does not know Bansi Doke. He
has also denied the suggestion that Bansi Doke was his
friend. He has, however, admitted as true that Bansi Doke
accompanied by about 150 to 200 persons had gathered
around the Hospital.
He has, however, denied the
suggestion that the mob was raising the slogans for
assaulting the Appellant. He has, however, admitted that
the Police had reached the Hospital prior to the arrival of
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the mob. He has also admitted as correct that the Police
Hospital.
were pacifying the mob which had gathered around the
He has denied the suggestion that the mob
ransacked the Hospital. He has also denied the suggestion
that Bansi Doke, as a member, was present in the mob. He
has further stated that he does not know as to whether
Bansi Doke had acted as a panch in respect of the seizure of
ig
the clothes of the victim. He has also stated that he does
not know if Anita Raju Kurmi had acted as another panch to
the seizure of the clothes of the victim. He has admitted
that he was in the Hospital upto 3.00 p.m. and in his
presence only, the statement of the victim was recorded.
He has also admitted as correct that the Appellant along-
with other Doctors was also present in the hospital. He has
admitted as correct that he was present when the victim
was being interrogated by the Police and was also present
when the statement of the victim was recorded.
admitted that after
the recording
He has
of the statement, the
victim had signed the statement. He has also admitted that
he had also signed the statement of the victim. He has also
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admitted as correct that thereafter, the victim was taken to
the Navi Mumbai Municipal Hospital for medical check up
and the Appellant was taken into custody and had also
been taken for medical examination.
He has denied the
suggestion that Bansi Doke had been accompanied him on
previous dates of hearing of the Sessions case.
He has
denied that Arjun Chaudhary, Satish Lokhande, Mangesh
ig
Thorat, Suresh and Bansi Doke are his friends.
He has
further denied that the victim was not in a position to give
her statement and that he had helped the victim in
narrating the recitals of the complaint. He has also denied
the suggestion that the contents of the statement had not
been narrated by the victim but had been told by PW-6
Narayan.
8.
Prosecution has examined the victim, whose name
is deliberately withheld as Prosecution Witness No.2. PW 2
– victim states that she was residing in the Flat in Sagar
Society, along with her husband, PW 6 – Narayan and her
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two sons. On 16/10/2010 at about 9 p.m. she had attended
Durga Mata Puja organized at the Modern College Ground,
along with her husband and her two sons and other
relatives. At about 9.30 p.m. she began to feel uneasy and,
therefore, she was admitted to the Lotus Hospital by her
husband and the other relatives. She further states that
initial first aid was given to her, but thereafter, as she was
ig
breathless, she was shifted to the I.C.U.
She has further
identified the appellant/accused as the doctor who was on
duty in the I.C.U. and who was a medical student of D.Y
.
Patil Hospital. She further states that in the late night the
nurse had left the I.C.U. and thereafter the appellant closed
the door of I.C.U. from inside. The appellant then went to
the bed of the patient, whose bed was to the right side of
the bed of PW 2 – victim. The appellant then came to the
bed on which PW 2 – victim was sleeping and pulled the
curtains around the bed.
The appellant then slept on the
left side of the bed of the victim and then removed the
oxygen mask, ECG connection and also removed the saline
drip.
The appellant also removed the pulse pin from the
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The
fingers in the hairs of the victim and kissed her.
finger of the victim and put it aside. The appellant put his
appellant opened the buttons of the gown and started
sucking her breast.
Since the victim was in a drowsy
condition, she tried to resist and also attempted to shout.
The appellant pressed her mouth and told the victim not to
shout. The appellant then started playing with the body of
ig
the victim and told her that she was very beautiful and that
he had loved her at first sight. The appellant then placed
both the hands of the victim around his neck and pulled her
and was,
near. The victim was in a drowsy condition
therefore, feeling sleepy. The appellant shook her face with
his hands and told her by using her first name that he was
besides her. The appellant, according to the victim, tried to
bring her to wet-fullness. The victim had a sensation of
passing urine and, therefore, told the appellant. The
appellant then connected the oxygen mask, the saline drip,
pulse pin and made her clothes in order and then called out
to the lady attendant, who came with a urine pot. The
appellant, at that time, slept on the adjoining
bed.
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According to the victim since she was drowsy and,
who had come there.
therefore, could not narrate anything to the lady attendant,
According to the victim, she was
frightened also. The lady attendant thereafter left the I.C.U.
carrying the urine pot with her.
During this time, the
appellant was on the adjoining bed and was fiddling with
ig
his mobile.
After sometime, the appellant again came towards
9.
the victim, removed all the attachments and started playing
with her body. The victim attempted to resist the advances
of the appellant, however, due to drowsiness she could not
do so. The appellant then lifted the gown of the victim and
placed both her legs on his shoulders and began to touch
her private part. The appellant then inserted his penis in
the vagina of the victim.
According to the victim, this
incident had taken place at about 2 a.m. on 17/10/2010. At
about 7 a.m., the husband of the victim i.e. PW 6 – Narayan
came in the I.C.U. and the victim narrated the entire
incident to him. The appellant was present in the I.C.U. at
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that time. According to the victim, the police arrived
thereafter and her statement was recorded and was read
over to her in Hindi. She has identified her signature on her
complaint/report at Exh. 30. She states that thereafter she
was taken to the Municipal Hospital by the police, where she
was medically examined. Her clothes were also seized. She
In cross-examination, she has admitted that her
10.
ig
has identified her clothes, which were shown to her.
husband PW 6 – Narayan is a octroi clearing agent and
earns around Rs.50,000/- per month. She has also admitted
that her sons are studying in third standard and in senior KG
respectively.
She has admitted that her entire family had
accompanied her for Durga Puja. She has admitted that her
blood pressure was low and because of that she was feeling
giddy. She has admitted that she had not consumed water
throughout day. She has also admitted that her husband
and the relatives had saved her from falling down due to
giddiness.
She has admitted that she can read and write
Marathi. She has admitted that when she was admitted in
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the hospital, she had not informed the Medical Officer about
hear breathlessness and anxiety. She corrected herself to
state that she had informed the Medical Officer that she
was breathless and suffering from anxiety. She has also
admitted that she was suffering from thyroid and she has
disclosed this to the Medical Officer at the time of
admission. She has admitted as correct that since the time
ig
she was admitted in the hospital till she was discharged,
admitted
She has further
she was conscious and well oriented.
as correct that
in the I.C.U. there were three
beds. One patient was also present in the I.C.U. She has
admitted that she does not know the name of the said
patient. She has admitted that she does not know if the
name of the said patient was Swapnil Waghmare. She has
admitted that she had been given the hospital clothes for
wearing after she was admitted in the hospital. She has
admitted that she had asked for urine pot in between the
incident.
She has admitted that she had signaled the
accused for urine pot. She has admitted that no gag was
thrust in her mouth during the incident.
She has denied
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the suggestion that the nurse used to examine the victim
every hour and used to take her temperature, pulse,
respiration, blood pressure. She has admitted that she had
met Dr. Tushar at the time of her admission in the hospital
and thereafter had not seen Dr. Tushar during the night.
She has admitted as correct that proper medical treatment
was given to her at the Lotus Hospital. She has admitted
ig
that her husband was present in the Lotus Hospital during
the night. She has also admitted as correct that during the
entire night, she had not called her husband to the I.C.U.
She has denied the suggestion that her husband had come
to the I.C.U. to see her on more than
during the night.
2 to 3 occasions
She has further admitted in the cross-
examination that during the entire night, the nurse on night
duty may have come to the I.C.U. once or twice. She was
confronted with portion marked “A” to the effect that the
appellant had ascertained if the patient who was sleeping
on the adjoining bed was asleep and thereafter had come
near the bed of the victim. She has admitted that portion
marked “A” in her statement is correctly stated by her. She
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She has also denied the suggestion
marked “A” are false.
has denied the suggestion that the contents of portion
that she was conscious at that time. She has volunteered
that she was drowsy. She has admitted that she had
realised
that the appellant was removing oxygen mask,
ECG connection and saline drip.
had not stated in her report that she was
her that she
Omission has been put to
ig
drowsy when the oxygen mask, ECG connection and saline
drip was removed. A suggestion was then put to her, which
she has admitted as correct, that she was half asleep.
She
has also admitted that she has attempted to shout. She has
admitted that the incident which commenced at about 2.30
a.m. continued for 2 to 2 1⁄2 hours. She has also admitted
as correct that her husband came in the I.C.U. at about 7
a.m.
She has also admitted as correct that she had
informed the incident to her husband immediately after he
came in the I.C.U.
She has admitted that she was
conscious and well oriented from
17/10/2010.
7 a.m. to 1 p.m. on
She has also admitted that below her
signature, the signature of her husband was also taken.
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was
being
recorded.
She
has
denied
the
statement
She has admitted that her husband was present when her
suggestion that from 7 a.m. to 1 p.m. she was drowsy and
was not in a position to speak. She has also admitted that
her husband had accompanied her when she had been
taken to the Government Hospital for medical treatment.
the doctor that she does not
ig
examination, she had told
She has admitted that when she had been taken for medical
remember if the appellant had any intercourse with her as
she was drowsy. She has also admitted to have stated to
the Medical Officer that as she was afraid, she had not
screamed or resisted and had informed her husband in the
morning.
She has denied the suggestion that the history
had not been recorded on the basis of what was told to the
Medical Officer by the victim.
She has denied the
suggestion that when she was being ravished by the
appellant, there was bleeding from her vagina. She has
admitted in her cross-examination that Bansi Doke (who is
examined as PW 1) is known to her as he is friend of her
husband. She has also admitted that Bansi Doke is leader
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She has admitted that Satish Lokhande and Arjun
are friends of her husband.
She has also
Choudhary
of NCP.
admitted that she knows Mangesh Thorat as he is a friend
of her husband. She has admitted that the friends of her
husband had visited the hospital on the day of the incident.
She has also admitted as correct that they were assisting
her husband and consoling him. She has admitted that she
ig
does not remember if Bansi Doke was present when the
clothes worn by the victim were seized by the police. She
has also admitted as correct that after her husband and
Bansi Doke had narrated the incident to the police,
the
police had enquired from the victim and thereafter her FIR
was scribed.
She has admitted that the bill of the Lotus
Hospital was not paid by her.
She has denied the
suggestion that she was drowsy from the time of her
admission in the hospital till 7 a.m.
11.
Prosecution has examined PW 10 – Indira Ghate,
the nurse, who was on duty during the night.
PW 10
-
Indira states that on 16/10/2010 she was employed as a
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On that day she was
nurse in the Lotus Hospital at Vashi.
on night duty i.e. from 8 p.m. to 8 a.m. of the next day. She
states that on that day one patient, who was suffering from
cancer and the victim who was having low blood pressure
were admitted in the I.C.U.
At about 10 p.m., as per the
directions of the appellant, she had administered medicines
At about 1 a.m. platelets were given to the
to the victim.
ig
cancer patient. At 1.30 a.m. the appellant directed PW 10 –
Indira to inject an injection “Medaz” to the victim and also
directed PW 10 – Indira to dissolve 1 ml does by diluting 10
According to PW 10 – Indira, since she was
ml distil-water.
suffering from asthma, she did not give the said injection to
the victim. The appellant, therefore, advice PW 10 – Indira
to go from the I.C.U. and take rest. PW 10 – Indira,
accordingly, went out of the I.C.U. and the appellant had
informed her that he would look after the patient i.e. PW 2 –
victim. According to PW 10 – Indira, she went to the deluxe
room
and after taking nebulization, took rest.
At about
5.30 in the morning, she went to the I.C.U. and noticed the
appellant sleeping on the bed adjoining the bed of the
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victim. PW 10 – Indira, thereafter, wrote down the TPR, BP
Charting from monitor from 2 a.m. to 5.30 a.m. and thus
completed the medical case papers of the victim. She has
admitted that the chart at Exh. 41 shows the TPR and the
BP charting, as was disclosed in the monitor. She states that
after some time husband of the victim came in the I.C.U.
and the victim told her husband something, on which the
ig
husband of the victim slapped the appellant.
In cross-
examination, she has admitted that she is suffering from
asthma since her birth. She has admitted that she has
joined the Lotus Hospital 3 to 4 months prior to the incident
and prior to her joining the Lotus Hospital, the appellant
was already working there. She has admitted as correct that
the appellant was regularly on night duty. She has admitted
that, while in the hospital, she had suffered attacks of
asthma on 3 to 4 occasions. She has also admitted that the
victim was admitted in the hospital at about 10 p.m. She
has admitted that she does not recollect as to whether the
victim was admitted by Dr. Tushar. She was confronted with
portion marked “A” from her statement that she had stated
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She has admitted as correct that the relatives of
Dr. Tadvi.
in her 164 statement that the victim was under treatment of
the patient, namely, Swapnil Waghmare, were present in
the hospital but were not present in the I.C.U.
Indira has admitted that she was awake
PW 10 –
till about 1 a.m.
She has admitted that notings made after 2 a.m. were
She has admitted that the entries
made by her at 5 a.m.
ig
were made on the basis of the data available on the
monitor. She has also admitted that at 5.30 a.m. she
attended both the patients in the I.C.U. and at 5.30 a.m.
had made entries in Exhs.41 and 42. She has admitted that
at 5.30 a.m. she had noticed the appellant sleeping on the
adjoining vacant bed.
12.
The victim was
examined by PW 4 – Dr. Sachin
Ajmera. PW 4 – Dr. Ajmera refers to the history narrated by
the victim.
He states that no evidence of any injury was
noticed on her private part. No external injury was noticed
on the abdomen as well as on examination of the anal. He,
however, noticed a sticky secretions from the private part of
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for chemical examination.
which the swab was collected
He states that various samples of the swab, nail clippings,
pubic hair etc. were drawn and were referred for chemical
analysis. In cross-examination, he has admitted as true that
if lady is forcibly raped, there would be injury marks. He
has admitted as true that no markings of struggle were
found on the body of the victim. He has also admitted as
ig
true that struggle marks would generally appear if the
sexual intercourse is continued for 2 1⁄2 hours either with
consent or without consent. He has also admitted that there
On
was no evidence of any injury on the private part.
seeing the report of the DNA examination, he has admitted
that he could not conclusively state if the victim was
subjected to forcible sexual intercourse. The report of the
DNA is at Exh. 49 and as per the report of the DNA, “No
interpretable male DNA is detected in ex1 Perinial swab,
ex2 Valval swab, ex3 Vaginal swab, ex4 Perianal swab, ex5
Nail clippings and ex6 Public hair of victim”.
13.
Prosecution has examined PW 3 – Dr. Abhijit Bagul,
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He
who states that he was a partner in Lotus Hospital.
further states that along with him, Dr. Nimish Chemburkar
and Dr. Amit Dhankee were the other partners. He further
states that the appellant was working in the hospital as
R.M.O. since about 8 to 9 months prior to the incident. On
the day of the incident, the duty hours of the appellant were
from 10 p.m. to 9 a.m. He states that PW 2 – victim was
ig
admitted in the hospital and thereafter was shifted to the
I.C.U. as she was complaining of breathlessness. She was
being treated by PW 7 – Dr. Tadvi. He further states that on
17/10/2010 in between 7.30 a.m. to 8 a.m. he had received
a telephone call from the appellant, who requested him to
come to the hospital immediately.
therefore,
proceeded
to
the
PW 3 – Dr. Bagul,
hospital
and
had
also
telephoned the other partners to come to the hospital. On
reaching the hospital, the husband of PW 2 – victim met
him.
He states that the appellant was assaulted. He also
admits that he learnt about the incident of rape from the
husband of PW 2 – victim. Since a crowd had assembled in
front of the hospital, he telephoned the Vashi Police Station
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and the police officers of the Vashi Police Station came to
the hospital. He states that he was asked to ascertain the
condition of PW 2 – victim and accordingly, he endorsed on
the letter at Exh. 39 that the victim was fully conscious and
was able to give her
statement.
He further states that
after recording the statement of PW 2 – victim, his
endorsement was also taken, which he has identified at
there are three beds in the I.C.U.
has admitted that
ig
Exh. 40. In cross-examination on behalf of the appellant he
He
states that including PW 2 – victim, two patients had been
The name of other patient was
admitted in the hospital.
Swapnil Waghmare, whose condition was very critical. He
states that the R.M.O. is required to maintain the TPR chart
i.e. Temperature, Pulse and Respiration every hour.
states that normally this is done every hour.
He
He has
identified the medical case papers at Exh. 41 as the case
papers maintained in the Lotus Hospital. He has admitted
that all the patients in the I.C.U. are connected to the
monitors and monitors give the continuous reading about
pulse rate, blood pressure and oxygen
saturation
and
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He has
some monitors also show the respiratory rate.
37.
identified the medical papers of Swapnil Waghmare at Exh.
He has also identified the medical case papers of
Swapnil Waghmare at Exh. 42. Upon perusal of the medical
case papers, he has admitted that Swapnil Waghmare had
passed 100 ml urine at 3 a.m. on 17/10/2010. He has also
admitted that said Swapnil Waghmare was suffering from
ig
cancer and his condition was critical and, therefore, one or
two relatives are permitted to stay in the hospital. He has
admitted that the mob had assaulted him as well as the
He has further admitted that the wall of the
appellant.
I.C.U. is partly of glass and the glasses are transparent and
one can see from outside as well as from inside.
He has
denied the suggestion that he had not learnt anything about
the incident of rape. He has further admitted as true that
the appellant had informed him that the monitor wire of PW
2 – victim was disconnected and, therefore, he had
connected the wire again.
14.
Prosecution has also examined PW 7 – Dr. Tadvi,
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While he was leaving
16/10/2010 as a General Physician.
who states that he was attached to the Lotus Hospital on
the hospital, he was informed by Dr. Chemburkar that one
lady patient was kept under observation in the O.P.D. as she
had complained of giddiness at
Durga Puja pendol.
Dr.
Chemburkar requested Dr. Tadvi to examine the said lady
Accordingly, PW 7 – Dr. Tadvi had a dialogue with
patient.
He, thereafter, requested the husband of
of the patient.
ig
lady patient as well as the husband and the other relatives
the patient to see him in the O.P.D. on Monday and gave his
At about 11 to 11.30 p.m. he received a
visiting card.
telephone call from the appellant, who informed him that
the lady patient, after she was discharged from the O.P.D.
had an attack of breathlessness and, therefore, was
admitted in the I.C.U. The appellant also informed Dr. Tadvi
that he had injected an injection of
Derriphyline and
another injection Effcorlin and he was monitoring her and
requested Dr. Tadvi to come to the Lotus Hospital in the
morning.
Dr. Tadvi states that thereafter he learnt about
the incident.
He has identified Exh.41 which are the
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medical case papers and states that the appellant had
given the treatment to PW 2 – victim. He then states that
injection Mezolam is a short acting sedative. He has
clarified that a short acting sedative means the period
between sleep and complete
anesthesia. He has further
stated that depending upon the dose, the condition of the
He has admitted that he had not
patient varies.
ig
prescribed any of the injections to the said patient. He then
states that for breathlessness, it was not necessary to inject
Mezolam. In cross-examination on behalf of the appellant,
he has admitted that there was no documentary evidence
to show that he had examined the victim at 9.30 p.m. He
has admitted that he had left the hospital at about 10 p.m.
He has admitted as correct that the R.M.O. is not supposed
to admit the patient directly in the I.C.U. and is required to
consult an expert before prescribing any medicine. He has
admitted as correct that Mezolam (Medazolam) is not a
banned drug and is available with the chemist. He has
admitted as correct that in case of anxiety, Mezolam can
be prescribed. The witness, however, volunteered that
if
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the parameters are normal. He has admitted as correct that
the effect of Mezolam remains hardly for 10 minutes. He
has further clarified in the cross-examination that a short
acting sedative means the period between sleep and
complete anesthesia and it is hardly for 10 minutes.
He
has further admitted that from the medical case papers of
PW 2 – victim, he could state that the victim was under
ig
short acting sedative for 10 minutes.
He has denied the
suggestion that the appellant had informed him on mobile
that there was anxiety and breathlessness of the victim.
15.
The appellant was examined by PW 9 – Dr.
Hanmitsingh Sahani, who states that he had noticed
contusion on the left temporal region 2x2 cm and irregular
nail marks on the cheek. In cross-examination he has
admitted that there was no mating of pubic hair
or a
foreion hair was found. He has admitted as correct that if a
person indulges in sexual intercourse for 2 to 2 1⁄2 hours
continuously, there may be injuries.
He has admitted as
correct that on the basis of medical examination, there was
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no conclusive evidence that sexual intercourse had been
16.
done.
Mr. Sejpal, learned counsel for the appellant has
urged before us that it is inconceivable that the appellant
would indulge in forcible sexual intercourse in the I.C.U.,
particularly when the other patient, Swapnil Waghmare, was
ig
sleeping on the adjoining bed. The learned counsel for the
appellant has further urged before us that the version of PW
2 – victim that the incident lasted for 2 1⁄2 hours is itself
and
the
medical
evidence
does
not
unbelievable
corroborate the version of the prosecutrix. It is also urged
before us by the learned counsel for the appellant that
curiously if the appellant had performed forcible sexual
intercourse, there would be marks of resistance/injuries on
the person of the victim. The medical evidence clearly
indicates that no external injuries were noticed. It is further
urged before us that since the hourly temperature, blood
pressure and other parameters were being monitored by PW
10 – Indira, the version of the prosecutrix appears to be
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extremely doubtful. Lastly, it is urged before us that when
the victim was examined by PW 4 – Dr. Sachin Ajmera, the
victim had admitted that she did not remember if the
appellant had performed sexual intercourse with her. It is,
therefore, urged before us that the evidence of the
prosecution
is completely unbelievable and the appellant
The
learned
APP
and
ig
doubt.
would, therefore, be entitled to be given the benefit of
the
learned
counsel
representing the complainant have urged before us that the
victim could not offer any resistance on account of the fact
that the victim was sedative and was drowsy. Absence of
any injuries on the person of the victim would not
necessarily indicate that the victim had consented for the
sexual intercourse. In any event, it is urged by the learned
counsel
for
the
State
and
the
complainant
that
corroboration in law is not necessary to the evidence of the
prosecutrix, if her evidence has a ring of truth.
17.
With the assistance of the learned counsel for the
appellant, we have carefully perused the evidence of the
The immediate conduct of PW 2 –
prosecution witnesses.
victim in informing her husband PW 6 – Narayan about the
incident certainly lends great assurance to the testimony of
PW 2 – victim. The accused / appellant has not been able to
bring on record any animosity or any grudge or ill-feeling
which could have prompted PW 2 – victim and her husband
PW 6 – Narayan to level false accusation against the
ig
appellant. The victim in clear terms has admitted that she
was drowsy. The fact that she was drowsy can certainly be
attributed to the short acting sedative mezolam, which had
been injected. Though effect of mezolam was for 10
minutes, yet since it was a sedative, it would certainly make
the patient, who had been injected with that drug, drowsy.
There is nothing in the cross-examination which would even
remotely indicate that the statement of PW 2 – victim that
she was drowsy, is incorrect. In fact, the suggestions in the
cross-examination go to the extent of suggesting it to the
victim that she was even drowsy when her complaint was
being recorded by the police.
If the victim was indeed
drowsy, we find it inconceivable to expect the victim to offer
any resistance. In fact, the victim has stated that she was
was fondling her body.
being shaken awake by the appellant while the appellant
The overture, especially the
overture which the appellant is alleged to have expressed,
clearly indicated that the appellant had a lust for the victim.
According to us, therefore, absence of any marks, indicating
struggle or resistance, would not necessarily mean either
ig
that the victim had consented for sexual intercourse or that
no sexual intercourse had been committed. The drowsiness
of the victim is a clear pointer to the fact that she was
physically incapable to offer any resistance to the appellant
in the commission of forcible sexual intercourse. Since the
victim was drowsy and, therefore, incapable of offering any
resistance, the passive submission of the victim cannot be
construed as consent. PW 6 – Narayan has clearly said that
when he met his wife PW 2 – victim in the morning the first
thing that the victim had asked him was, as to why he had
not come to see her during the night and thereafter had
narrated the incident of rape. The immediate re-action of
the victim clearly speaks volumes about the truthfulness of
18.
the claim made by the victim.
The other patient in the I.C.U., namely, Swapnil
Waghmare, was suffering from cancer and was critical.
There is nothing on record that he was awake and had not
been sedative.
In such circumstances, presence of the
other patient, Swapnil Waghmare in the I.C.U. would not in
any manner affect the credibility of the evidence of the
victim that she had been ravished
in the I.C.U. by the
appellant. The victim in clear terms has admitted that the
curtains around her bed was drawn by the appellant, thus
obscuring the vision of anyone who was standing outside
the glass partition.
Because of the drawing of the curtains,
any person standing outside the glass partition would not
be in a position to see as to what was going on in the I.C.U.
19.
PW 10-Indira has clearly indicated that since she
was suffering from asthma, she had retired to the deluxe
room for resting and the appellant had then closed the door
of the I.C.U.
She has clearly admitted that the readings
about the arrival of the husband of the
She also admits
were taken by her on the next day at 5.30 in the morning.
prosecutrix and the prosecutrix informing her husband
about an incident. Thus, according to us, the evidence of
the victim clearly has a ring of truth. It would be adding
insult to injury to expect that the evidence of the victim
should be corroborated in material particulars like that of an
accomplice. Though the medical evidence does not assist
the prosecution case, for the reasons stated above,
according to us, the absence of corroboration from the
medical evidence would not be fatal to the prosecution
case. The credibility of the victim is not affected on account
of absence of corroboration. The victim does not, in any
manner, said that the accused had performed sexual
intercourse for two and half hours.
If the evidence of PW 2
– victim is perused, she has admitted that incident, which
commenced at 2.30 a.m. lasted for 2 to 2 1⁄2 hours i.e. till 5
a.m. In any event, since the victim was drowsy, her
perception of time would be only by approximation and any
exaggeration in stating the time would not necessarily
mean that the appellant had performed the forcible sexual
intercourse for 2 to 2 1⁄2 hours. According to us, therefore,
the approximate time of the incident stated by the victim
i.e. the duration of the incident of 2 to 2 1⁄2 hours, though
appear to be incredulous, would not materially affect the
credibility of PW 2 – victim.
The duration of the incident
would not in any manner whittled down the evidence of the
ig
prosecutrix that she had been ravished by the appellant.
The duration, as stated by her, obviously, would be affected
by her mental state as she was drowsy. It is true that the
victim, when on being examined by PW 4 – Dr. Sachin
Ajmera, has stated that she could not remember if the
appellant had performed sexual intercourse with her.
The
aforesaid history as disclosed by the victim is reflected in
the certificate at Exh. 48 and is also reiterated by PW 4 – Dr.
Sachin Ajmera. According to us, however, the aforesaid
disclosure of PW 2 – victim that she did not remember if the
appellant had performed sexual intercourse with her would
not assist the defence in any manner.
Prior to her being
examined by PW 4 – Dr. Sachin Ajmera, she had clearly
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disclosed the incident to her husband PW 6 – Narayan and
her FIR has been scribed. In the narration to her husband
as well as in the recitals of the FIR, she had clearly stated
that the appellant had performed sexual intercourse. In the
light of the earliest disclosure, which was made by the
victim to her husband, PW 6 – Narayan, according to us, the
20.
ig
manner affect her credibility.
history narrated by her to PW 4 – Sachin Ajmera would in no
The learned counsel for the appellant has also
urged before us that PW 1 – Bansi, a witness to the scene
of the incident panchanama as well as to the seizure memo
of clothes of the victim, was a friend of PW 6 – Narayan, as
has been admitted by PW 2 – victim.
It is further urged
before us that PW 1 – Bansi had engineered the assembling
of the mob in front of the Lotus Hospital and the mob in turn
had ransacked the hospital.
It is urged before us that PW 6
– Narayan has admitted that no payment for the treatment
was made by him.
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According to us, the acquaintance of PW 1 – Bansi
Narayan does not in any manner led to an
with PW 6 -
21.
inference that in order to avoid making payment of the
hospital dues, a false accusation has been levelled against
the appellant. In fact, the assembling of the mob in front of
the hospital and the ransacking of the hospital, though
lamentable, strengthens the prosecution case about the
ig
indignation expressed by PW 6 – Narayan regarding the
conduct and behaviour of the appellant in committing
forcible sexual intercourse with his wife, PW 2 – victim.
22.
The learned counsel for the appellant has placed
reliance on the judgment of the Supreme Court in Sadashiv
Ramrao Hadbe vs. State of Maharashtra and anr. [(2007) 1
SCC (Cri) 161].
In the said case before the Supreme
Court, the Supreme Court found that the version of the
prosecutrix was unsupported by the medical evidence and
the surrounding circumstances belie the case set up by her.
The prosecutrix had alleged that the appellant before the
Supreme Court had committed rape on her in his Clinic. The
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Supreme Court found that there were many persons in the
Clinic and it was highly improbable that the accused would
have sexually assaulted the prosecutrix when the other
patients were present in the near vicinity.
The Supreme
Court also found that absence of injuries on the body of
prosecutrix improbabilise the prosecution case. The other
evidence
in
respect
circumstantial
of
absence
of
The ratio of the aforesaid judgment, in our opinion,
23.
prosecution.
ig
spermatozoa in the vaginal swab negatived the case of the
would be inapplicable to the facts of the present case. In
the
present
case,
the
appellant
is
alleged
to
have
performed forcible sexual intercourse in the wee hours in
the morning
i.e. between 2.30 a.m. to 5 a.m.
In the
present case the victim was drowsy and, therefore,
unable to offer effective resistance.
was
The victim does not
allege that the appellant had performed a complete sexual
intercourse in as much as the victim does not state that
there was a discharge of semen and consequently absence
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in the vaginal swab would not belie the
of spermatozoa
24.
prosecution case.
The learned counsel for the appellant has also
placed reliance on the judgments of the Supreme Court in
Sudhansu Sekhar Sahoo vs. State of Orissa [(2002) 10 SCC
743], Radhu vs. State of Madhya Pradesh [(2008) 2 SCC
ig
(Cri) 207], Rai Sandeep alias Deepu vs. State (NCT of
Delhi) [(2012) 3 SCC (Cri) 750] and Dilip and another vs.
State of M.P. [(2001) 9 SCC 452] to urge before us that
though it is true that a conviction could be based on the
testimony of the prosecutrix, yet the rule of prudence
required that the evidence of the prosecution should be
corroborative. It is, therefore, urged by the learned counsel
for the appellant, relying on the ratio of the aforesaid
judgments, that in the absence of any corroborative
evidence, particularly the medical evidence, the conviction
of the appellant is unsustainable. According to us, the ratio
of the aforesaid judgments would not be applicable to the
facts of the present case for the reasons stated above.
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41
the
The learned APP has referred to the judgment of
Supreme
Court
in
State
of
25.
cri-apeal-203-13.doc
Maharashtra
vs.
Chandraprakash Kewalchand Jain [AIR 1990 SC 658]. The
Supreme Court in the said judgment has held that the
prosecutrix of a sex offence cannot be put on par with that
of accomplice as she was in fact a victim of the crime. Her
of an injured witness.
ig
evidence, therefore, has to be appreciated like the evidence
In the present case, we found that the evidence of
26.
PW 2 – victim has a ring of truth. Despite being subjected
to lengthy cross-examination, nothing has been elicited in
her cross-examination, which would in any manner affect
her credibility. The evidence of the victim is further
corroborated by immediate disclosure made by the victim
to her husband PW 6 – Narayan.
Though the medical
evidence indicates that the victim had not sustained any
injury, we find that the evidence of PW 2 – victim certainly
inspires confidence of the court and can be acted upon,
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there
being
any
corroboration.
We
find
it
without
inexplicable that a victim would make false accusation
against the appellant, if indeed the appellant had not
indulged in the forcible sexual intercourse. There was hardly
any time for the victim to have concocted a false case
against the appellant as immediately at about 7 a.m. she
had disclosed to her husband about the forcible sexual
ig
intercourse. We, therefore, find that the reliance placed by
the trial court on the testimony of the prosecutrix cannot be
said to be misplaced. The evidence of the prosecution
certainly establishes the offence against the appellant
beyond reasonable doubt.
The appeal, in our opinion,
therefore, deserves to be dismissed.
27.
Accordingly, we dismiss this appeal, confirming the
conviction and sentence of the appellant.
(P. N. DESHMUKH,J.)
(P. V. HARDAS,J.)
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