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COMMITTED ON : 08.10.2013
RECEIVED ON : 10.10.2013
DECIDED ON : 21.03.2014
DURATION : Y. M. Ds
- 05 11
IN THE COURT OF PRINCIPAL SESSIONS JUDGE GR. BOMBAY
AT : BOMBAY
(PRESIDED OVER BY DR.MRS.SHALINI S. PHANSALKAR-JOSHI)
EXH.NO.
SESSIONS CASE NO.914 OF 2013
Shri Ujjwal Nikam
Special Public
Prosecutor.
The State of Maharashtra
(Through DCB, CID, Unit-III, Mumbai)
C.R.No.87/2013
(N.M.Joshi Marg Police Station C.R.No.253/13)
C.C.No.782/PW/2013 .. COMPLAINANT
VERSUS
Shri Prakash
J. Salsingikar
Advocate
1) Mohd.Ashfaq Dawood Shaikh @ Baba
Age 25 occp. Service
r/o. Om Sai Guru Apartment,
2
nd
floor, Room No.202, Samrat Nagar,
Mumbra, Dist. Thane
Shri Ravindra
G. Gadgil
Advocate
2) Mohd. Kasim Mohd. Hasim Shaikh @ Bangali
Age 20 occp. Mason
r/o. Zopda No.118, Opp. Bharat Petrol Pump,
Maulana Azad Road, Kalapani
Agri Pada, Mumbai.
Shri Moin A. Khan
Advocate
3) Mohd. Salim Abdul Kuddus Ansari
Age 27 occp. Punching Operator
2
r/o. Vishnu Nagar, Building No.R/2,
3
rd
floor, Room No.307,
Near Datta Mandir, Mahul Village
Vashi Naka, Mumbai 74
Shri Keshav
S. Chavan
Advocate
4) Vijay Mohan Jadhav @ Nanu
Age 18 years occp. Worker/Helper
r/o.Indira Nagar,
Next to Agnidut Building Lane,
Dhobighat, Satrasta, Mumbai AND
Jai Bhavani Ambemata Building
Room No.12, 1
st
floor, Khopdi Gaon
Virar (East), Dist. Thane .. ACCUSED
-----OOOO-----
OFFENCES PUNISHABLE U/S 120-B, 376(D),377,
354(B), 341, 342, 506(II), 323 r/w 120-B in alternate
r/w 34 of I.P.C.
J U D G M E N T : (ORAL)
(Dated 21
st
March 2014)
1. This case unfolds the untold trauma of an young frail girl of
19 years age who was subjected to gang rape and the natural and
unnatural sex of inhuman form at the hands of five persons in the
dilapidated and deserted premises of Shakti Mill.
2. According to prosecution case, accused are the culprits of
this gruesome offence and, hence, they are arraigned in this case to face
the trial for the various offences viz. criminal conspiracy punishable u/s
120-B, gang rape u/s 376(D), unnatural offences u/s 377, wrongful
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restraint and confinement u/s 341, 342, disrobing prosecutrix in public
place u/s 354(B) and criminal intimidation u/s 506(II) r/w Section 120-B
of I.P.C., or in alternate r/w Section 34 of I.P.C.
3. Factual matrix of the case can be depicted as follows :
On 31/07/2013, after her duty hours as Telephone Operator
in 'Parivartan Sandesh Foundation' at Bhandup were over, at about 6.30-
p.m., the victim in this case (name withheld and hereinafter referred to as
'prosecutrix') and her boyfriend P.W.19-Krishna decided to visit
Mahalaxmi Temple. Hence from Bhandup, they came by local train to
Mahalaxmi Railway Station and started walking towards the temple. On
the way, prosecutrix stumbled upon a stone and sustained injury to her
left foot. As it was paining a lot, they decided to return to the house
instead of going to the temple. On inquiries with the passers-by, they
took the nearest and shortest route to Mahalaxmi Railway Station. The
said route was passing through the derelict premises of Shakti Mill. There
initially two persons, who are later identified as accused No.3-
Mohd.Salim and accused No.2-Mohd.Kasim accosted them. These two
accused assaulted her and Krishna. When Krishna resisted, they tied his
hands with her odhani. Then one of those persons, namely accused No.
3-Mohd. Salim gave his mobile to the other person i.e. accused No.2-
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Mohd.Kasim and he said on mobile 'Maal aala aahe, spot pe aaja phata
phat'. Then third person to whom she has identified as accused No.4-
Vijay came there. He and accused No.2-Mohd.Kasim tied the hands of
Krishna with her odhani and detained him there whereas accused No.3-
Mohd.Salim started dragging her inside the shrubs. By that time accused
No.1-Mohd. Ashfaq came there. As she was shouting, accused No.1-
Mohd.Ashfaq put his handkerchief in her mouth. Then first accused No.
3-Mohd.Salim and accused No.1-Mohd.Ashfaq committed forcible sexual
intercourse and dirty things with her. At that time, accused No.2-
Mohd.Kasim remained with Krishna.
4. After accused No.3-Mohd.Salim and accused No.1-Mohd.
Ashfaq came out, accused No.2-Mohd.Kasim went inside and raped her.
By that time, accused No.4-Vijay and juvenile-in-conflict-with-law had
also arrived there. They also in turn, subjected prosecutrix to forcible
sexual intercourse and also to unnatural sex by inserting penis in her
anus and forcing her to take penis in her mouth. After satisfying their
lust, they brought her out from the shrubs to the place where Krishna was
held up with his hands tied. They freed the hands of Krishna, brought the
prosecutrix and Krishna to Mahalaxmi Railway Track and after
threatening them not to disclose about the incident to anyone, they went
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in opposite direction whereas prosecutrix and Krishna returned to
Mahalaxmi Railway Station.
5. On the way, prosecutrix disclosed about the incident to
Krishna. Krishna suggested to her that they will inform her mother but
the prosecutrix restrained him from doing so as she had apprehension
that her mother may commit suicide, if she comes to know about it.
Krishna gave assurance of getting married with her but, the prosecutrix
was not willing to go home as she was mentally shocked and feeling
awkward and humiliated. Both of them then thought over the matter and
decided to go to the house of Krishna's friend in Chattisgarh. As the
kurta of the prosecutrix was torn during the incident and her inner
clothes and odhani were left behind the spot, Krishna purchased for her
one T-shirt from the footpath vendor at Mahalaxmi bridge. As Krishna
was not having money for railway tickets, he borrowed Rs.1,500/- from
his employer-P.W.4-Dipesh Pumbhalia and then by the early morning
Geetanjali Express, they left for village Dohatra at Chattisgarh. There they
stayed in the house of Krishna's friend, P.W.6-Manojkumar Satnam for
about one month and returned to Mumbai on 01/09/2013.
6. Meanwhile, as prosecutrix had not returned to the house on
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the night of 31/07/2013, her mother, after making inquiry with the
Manager of 'Parivartan Sandesh Foundation', had lodged Missing
Complaint at Bhandup Police Station on 01/08/2013. As on 02/08/2013,
prosecutrix on phone informed her that she was with Krishna, her
mother went to Bhandup Police Station to cancel the missing complaint.
However, police told her that the missing complaint will be cancelled
only if her daughter is brought to police station.
7. On return of prosecutrix and Krishna to Mumbai on
01/09/2013, prosecutrix disclosed about the incident of gang rape to her
mother, who was mentally shattered and became unwell. After she
recovered a bit, on the night of 02/09/2013 at about 10.30 p.m., she took
the prosecutrix and Krishna to Bhandup Police Station for cancelling the
Missing Complaint. There during inquiry by P.W.22-P.S.I. Baravkar and
the lady police officer P.W.23-Deepali Kulkarni, as to where she was for
such a long period of one month, prosecutrix disclosed about the
incident that has happened on 31/07/2013. Hence, her complaint came
to be recorded at Bhandup Police Station on the very night for the
offences punishable under Sections 376(D), 323, 504, 506 r/w 34 of I.PC.
and the crime was registered at 2.10 a.m.. As the spot of incident which
was identified by prosecutrix was that of Shakti Mill premises and as it
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was falling in the jurisdiction of N.M.Joshi Marg Police Station,
prosecutrix, Krishna and her mother were taken to N.M.Joshi Marg Police
Station by P.W.22-P.S.I. Baravkar of Bhandup Police Station along with her
complaint.
8. They reached at N.M.Joshi Marg Police Station in the
morning at about 5.30 a.m. where her complaint came to be registered as
C.R.No.253/2013 for the offences punishable under Sections 376(D), 377,
120-B, 341, 342, 354(B), 506(II) r/w 34 of I.P.C. Her supplementary
statement also came to be recorded at N.M.Joshi Marg Police Station by
the lady police officer P.W.29-P.S.I. Neetu Tayade in which, she gave
further details of the incident.
9. Thereafter P.W.25-.P.I.Mane took prosecutrix and her friend
Kirshna to Shakti Mill premises where they showed the spot of incident.
From the spot, her inner clothes like knicker, brassiere, odhani, the beads
of her bracelet which she was wearing at the time of incident and her
water bottle were recovered under panchanama in between 10.30 a.m. to
12.30 p.m.. The photographs of the spot were also clicked at the same
time.
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10. At about 1.00 p.m. on that day, prosecutrix was referred for
medical examination to Nagpada Police Hospital and thereafter to
J.J.Hospital. Her medical examination revealed that hymen was torn and
she was suffering from Post Traumatic Stress Disorder as a result of this
brutal incident of gang rape.
11. During the course of investigation, one juvenile-in-conflict-
with-law by name Akash (full name withheld to protect his identity) came
to be arrested on 03/09/2013 and in inquiry with him, names of other
accused were transpired.
12. At this stage, it may be stated that in the same premises of
Shakti Mill, another incident of gang rape on the young intern
Photojournalist of Time Out Magazine had taken place on 22/08/2013.
In respect of the said incident, C.R.No.244/13 was initially registered at
N.M.Joshi Marg Police Station on 22/08/2013. On 25/08/2013, the
investigation thereof was transferred to DCB, CID, Crime Branch, Unit III,
Mumbai and it was registered as DCB, CID, C.R.No.83/2013. In that C.R.,
totally five persons by name Vijay Mohan Jadhav, Siraj Rehmat Khan @
Sirju, Mohd.Kasim Mohd.Hasim Shaikh @ Bengali, Mohd.Salim
Mohd.Abdul Kadrus Ansari and one juvenile-in-conflict-with-law by
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name Chandbabu (full name withheld to protect his identity) were
arrested and remanded to Magisterial Custody of Crime Branch, Unit III
in Byculla Jail.
13. Having regard to the description of the suspects as given by
the prosecutrix in this case, the manner of commission of offence in
which she was sexually ravished, the spot of incident being the same that
of deserted premises of Shakti Mill where the incident dtd.22/08/2013
had taken place, and as interrogation of juvenile-in-conflict-with-law
Akash pointed to the involvement of those accused persons in this C.R.
also. Hence, investigation of this C.R. was also handed over to DCB, CID,
Crime Branch, Unit III, Mumbai on 05/09/2013 and it was registered as
DCB, CID C.R.No.87/2013.
14. The Crime Branch Police in their wisdom, then thought it fit
to first conduct test identification parade of accused No.1-Mohd.Ashfaq
and other four accused namely Mohd.Kasim, Mohd.Salim, Vijay Jadhav
and Siraj Shaikh arrested in C.R.No.83/2013 to verify whether those
accused were involved in this incident of gang rape also. Accordingly the
test identification parade of those four accused was conducted in Byculla
Jail on 14/09/2013 wherein the prosecutrix in this case and her friend P.W.
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19-Krishna identified the three accused namely accused No.2-
Mohd.Kasim, accused No.3-Mohd.Salim and accused No.4-Vijay.
15. Accused No.1-Mohd.Ashfaq in this case was arrested on
14/09/2013 on the receipt of secret information obtained by the police.
Both prosecutrix and P.W.19-Krishna identified accused No.1-
Mohd.Ashfaq in his test identification parade conducted at Thane jail on
17/09/2013. In the test identification parade of juveniles in conflict with
law, of both these crimes, namely Chand of that crime and Akash of this
crime conducted in Children's Home at Dongari, prosecutrix and P.W.19-
Krishna identified the juvenile-in-conflict-with-law, Akash.
16. Therefore, these three accused, namely Mohd.Kasim, Mohd.
Salim and Vijay Jadhav came to be arrested in this C.R. on 19/09/2013
During the course of investigation, the call detail records of the mobile
phones used in the commission of offence by accused No.1-Mohd.Ashfaq
accused No.2-Mohd. Kasim and accused No.3-Mohd.Salim which were
already recovered at their instance under Section 27 of Evidence Act, were
called from Vodafone and Tata Teleservices companies which established
the exchange of calls between accused No.1-Mohd.Ashfaq, accused No.2-
Mohd.Kasim and accused No.3-Mohd.Salim during the incident, as
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stated by prosecutrix and her friend.
17. As a part of further investigation, the statements of witnesses
were recorded from time to time including that of the statement of the
mother of the prosecutrix and her friend Krishna which were recorded on
the same day i.e. on 03/09/2013 after offence was registered. The
statement of Krishna's friend in Chattisgarh Shri Manojkumar Satnami
and Krishna's employer Shri Dipesh Pumbhalia from whom Krishna had
borrowed the money came to be recorded on on 06/09/2013. The seized
mobiles, medical samples and clothes of prosecutrix and accused were
sent to C.A. and after completion of usual investigation, the charge-sheet
came to be filed against these accused in the court of Addl.Chief
Metropolitan Magistrate, 37
th
Court, Esplanade, Mumbai on 08/10/2013.
A separate charge-sheet was filed against juvenile-in-conflict-with-law,
Akash in the Juvenile Justice Board.
18. As the offences with which these accused are charged viz.
Section 376(D) and Section 377 of I.P.C. being exclusively triable by the
Sessions Court, the case was committed to this Court on 08/10/2013
itself.
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19. On production of the accused before this Court and after
hearing Spl.P.P. Shri Ujjwal Nikam and four defence Counsels for the
accused, I have framed charge against the accused vide Exh.11 on
18/10/2013 for the offences punishable under Sections 120-B, 376(D),
377, 354(B), 341, 323, 506(II) r/w 120-B in the alternate r/w 34 of I.P.C.
The charge was read over and explained to all the four accused. They
have abjured the guilt and claimed trial. Their defence is of denial and
false implication with a specific plea that due to the pressure from Media
and senior police officers, they are falsely implicated in this case as they
were already in the custody of Crime Branch in C.R.No.83/2013.
20. To prove its case, prosecution placed reliance on the
evidence of 31 witnesses including the prosecutrix, her friend Krishna,
her mother, panchas, Tahasildars who conducted test identification
parades, Nodal Officers of mobile companies and Investigating Officers.
Their evidence can be categorized as follows :
(I) WITNESSES AS REGARDS ACTUAL INCIDENT :
1) P.W.11-Prosecturix (Exh.46)
Complaint Exh.47
2) P.W.19-her friend, Pankaj @ Krishna Ramesh Kamble (Exh.
68)
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(II) WITNESSES TO THE SUBSEQUENT CONDUCT:
1) P.W.4-Dipesh Nathala Pumbhalia (Exh.29) from whom P.W.
19-Krishna has borrowed the money
2) P.W.6-Manojkumar Jagdishkumar Satnami (Exh.32) in
whose house at Chattisgarh, prosecutrix and P.W.19-Krishna
stayed for a month after the incident.
(III) WITNESSES ON THE POINT OF MISSING COMPLAINT :
1) P.W.5-P.I. Sanjay Ananda Baswat (Exh.30) who has recorded
Missing Complaint and proved the entry in Missing Register
(Exh.31)
2) P.W.10-prosecutrix's mother (Exh.44)
Missing Complaint-Exh.45
3) P.W.9-Ms.Vaishali Jadishsingh Bons (Exh.39)
Bio-Date of prosecutrix-Exh.40
Attendance Register for the month of July and August 2013-
Exh.41 and 42
(IV) WITNESSES AS REGARDS REGISTRATION OF COMPLAINT AT
BHANDUP POLICE STATION :
1) P.W.22-P.S.I. Yashwant Vitthal Baravkar (Exh.73)
Complaint Exh.47
Proforma of F.I.R.-Exh.47A
2) P.W.23-W.P.S.I. Deepali Bhushan Kulkarni (Exh.74)
(V) WITNESSES AS REGARDS REGISTRATION OF COMPLAINT AT
N.M.JOSHI MARG POLICE STATION
1) P.W.25-P.I. Arjun Shivaji Mane (Exh.77)
2) P.W.29-P.S.I. Neetu Rahul Tayade (Exh.99)
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VI) WITNESSES RELATING TO SPOT PANCHANAMA
P.W.1-Sandeep Sharad Kanvinde(Exh.18), Interior Designer who
has drawn sketch of the spot
Fair Sketch (Exh.21)
P.W.2-Santosh Dharma Jadhav (Exh.23) who has clicked the
photographs of the spot.
Photographs-Exh.25/1 to 25/14 and their enlarged copies-Exh.26/1
to Exh.26/14
P.W.3-Subhash Shamrao Deshmane (Exh.27) panch to the spot
panchanama
Spot Panchanama (Exh.28)
VII) WITNESSES AS REGARDS MEDICAL EXAMINATION OF
PROSECUTRIX
P.W.26 Dr.Ms.Kiran Yadav (Exh.82) who conducted physical
examination of prosecutrix.
Medical Certificate (Exh.84)
P.W.24-Dr.Maithili Shailesh Umate(Exh.75) who conducted
psychological examination of prosecutrix.
Mental Health Report of prosecutrix (Exh.76)
VIII) WITNESSES AS REGARDS ARREST AND RECOVERY OF ACCUSED
No.1
P.W.7-Sunil Anant Madyalkar (Exh.33), panch witness
Memorandum Panchanama (Exh.34)
Seizure Panchanama (Exh.35)
P.W.14-Pravin Tukaram Marchande (Exh.59), panch witness
concerning to personal search of accused No.1-Mohd.Ashfaq
Search and Seizure panchanama (Exh.60)
P.W.16-A.PI..Avinash Bhupal Kavthekar (Exh.64) who arrested
accused No.1 and made inquiry.
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IX) WITNESSES REGARDING ARREST AND RECOVERY EVIDENCE
RELATING TO ACCUSED NO.2
P.W.8-Pravin Amardas Parmar (Exh.36), panch witness
Photocopy of Memorandum panchanama of accused No.2-
Mohd.Kasim (Exh.37) (Original in S.C. 846/13)
Photocopy of Recovery panchanama of accused No.2-Mohd.Kasim
(Exh.38) (Original in S.C. 846/13)
P.W.12-Ravi Nagnath Dandagule (Exh.57) to whom accused No.2-
Mohd.Kasim has sold his mobile.
P.W.15-A.P.I.Vinod Tukaram Tawade (Exh.62) who arrested
accused No.2-Mohd.Kasim and made inquiry with him.
Copy of panchanama (Exh.63)(Original in S.C. 846/13)
X) WITNESSES REGARDING ARREST AND RECOVERY EVIDENCE
RELATING TO ACCUSED NO.3
P.W.18-Mr.Ajaykumar Laltuprasad Gautam (Exh.66), panch
witness
Panchanama (Exh.67) (Original in S.C. 846/13)
P.W.20-P.I.Gulabrao Arjun More who arrested accused No.3-
Mohd.Salim and made inquiry with him.
XI CARRIERS OF MUDDEMAL TO C.A.
P.W.13-PH Prakash Gajanan Shivkar (Exh.58)
P.W.17-PN Vijay Atmaram Desai (Exh.65)
XII) WITNESSES RELATING TO TEST IDENTIFICATION PARADES
P.W.21-Tanaji Shivaji Patole (Exh.70) who has conducted Test
Identification Parade at Byculla Jail wherein accused No.2-
Mohd.Kasim, accused No.3-Mohd.Salim and accused No.4-Vijay
were identified.
TI parade memorandum panchanama (Exh.72)
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P.W.30-Vijay Mahadev Shete (Exh.113) who has conducted Test
Identification Parade at Thane Jail wherein accused No.1-
Mohd.Ashfaq was identified.
TI parade memorandum panchanama (Exh.116)
XIII) WITNESSES RELATING TO EVIDENCE OF CALL DETAIL
RECORDS

P.W.27-Changdev Haribhau Godse (Exh.85), Nodal Officer from
Vodafone company
Call Detail Records -Exh.88
P.W.28-Mr.Baby John (Exh.90), Nodal Officer from Tata
Teleservices
Call Detail Records-Exh.98
XIV) INVESTIGATING OFFICER
P.W.31-P.I.Sanjay Devram Nikumbe (Exh.118)
XV) DEFENCE WITNESS
D.W.1-Dayanand Shreenivas Kamat (Exh.158) Spl.Correspondent
D.N.A. newspaper through whose evidence E-newspaper dated
04/09/13 is marked as Art.X-3
21. On the closure of prosecution evidence, I have recorded the
statements of the accused under Section 313 of Cr.P.C. in which they
reiterated their defence of false implication due to the pressure of Media
and senior police officers and that they were shown to the victim and the
witness Krishna at Police Station before their test identification parades.
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22. The defence also examined one witness by name Mr.
Dayanand Shreenivas Kamat to prove the news article in electronic
edition of Mumbai Mirror dtd.04/09/2013 to substantiate their defence
that the names of the accused were published by the senior Police Officer
in Press Conference much in advance before the conduct of test
identification parades of these accused and, hence, the witnesses have
identified the accused in the test identification parades and in the Court
also.
SUBMISSIONS :
23. On the basis of this evidence both, ocular and documentary,
it is submitted by Spl.P.P. Shri Ujjwal Nikam that this being the case of
sexual offence, the sole testimony of prosecutrix is also more than
sufficient to prove the guilt of the accused. In this case, according to him,
as the prosecutrix herself has given vivid account of incident as it has
happened and as her testimony is receiving full and complete
corroboration from the evidence of Krishna-her friend who was
accompanying her at the time of incident, there is no need to look for any
other corroboration. He has further submitted that, if the Court feels it
necessary to look for assurance to her testimony, then there is also catena
of corroborating evidence, like immediate disclosure of the incident by
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the prosecutrix to her friend Krishna and thereafter her subsequent
conduct, coupled with the medical evidence proving her mental status as
suffering from 'Post Traumatic Stress Disorder.'
24. As regards the involvement of the accused in the incident,
Spl.P.P. has relied upon the evidence of test identification parades of the
accused conducted by independent witnesses, in which both, the
prosecutrix and witness Krishna have identified all the four accused. He
has further relied on the Call Detail Records of the mobiles of accused No.
1-Mohd.Ashfaq, accused No.2-Mohd.Kasim and accused No.3-Mohd.
Salim to prove that they were constantly in touch with each other during
the entire span of incident. According to him, the conduct of the accused
during the incident of initially only accused No.3-Mohd.Salim and
accused No.2-Mohd.Kasim accosting the prosecutrix and Krishna and
thereafter calling on mobile, other two accused and juvenile-in-conflict-
with-law and acting in unison in sexually ravishing the prosecutrix goes
to prove that this incident was the outcome of criminal conspiracy
hatched by them.
25. As regards the delay in lodging of FIR, Spl.P.P. Shri Nikam has
strenuously urged that delay alone cannot become fatal to the
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prosecution case. What the Court has to look into is, whether the delay is
explained satisfactorily or not. In this case, he has urged that the
prosecution has succeeded in establishing the sufficient cause for delay
in lodging of the complaint, in the background of the circumstances in
which the incident has occurred and also having regard to the social
fabric of the society in which a woman is reluctant to disclose any such
incident which may have repercussions on her honour and dignity.
According to him, it was also the prosecutrix's apprehension that her
mother may commit suicide if she comes to know about the incident and
the prosecutrix was the best judge on this point as she was knowing her
mother better than us and, therefore, there is no reason to discard the
case merely on account of delay. Her testimony, according to him, is of
sterling worth which Court should accept as it is, instead of subjecting it
to scrutiny of disbelief and suspicion. Recovery of the Muddemal Articles
from the spot and also at the instance of the accused according to him,
are also forming the connecting links and the most clinching piece of
evidence being the Call Detail Records proved through the Nodal Officers
of Vodafone and Teleservices company. Hence, according to him, all the
charges levelled against the accused stand proved by the prosecution
beyond reasonable doubt.
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26. As against it, the submission of learned Counsels for accused
is twofold. First, that of no such case has occurred in reality and second
that of accused are made scapegoats. According to them, the inordinate
delay in lodging the complaint and the absence of satisfactory
explanation for the same, raises serious doubt about the veracity of the
prosecution case. It is submitted by them that there is every possibility of
prosecutrix eloping with her boyfriend Krishna as her mother was not
approving their marriage and subsequently prosecutrix and her
boyfriend Krishna cooking up the story of gang rape after they read about
the news of the gang rape that took place in Shakti Mill premises on
22/08/2013. According to them, as the reputation of Mumbai police was
seriously tarnished due to the gang rape of Photojournalist in Shakti Mill
Premises on 22/08/2013, police wanted to show their efficiency and
further to take advantage of the fact that some accused were already in
the custody of the said case. The Police Officers have succumbed to the
pressure of their seniors and the Media and had selected these soft
targets, to foist upon them this false case.
27. It is also strenuously urged by all the defence Counsels that
the entire evidence in this case is concocted and fabricated which was
easy to do for the Crime Branch of Mumbai Police. The articles recovered
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are the common articles easily available in the market. The witnesses are
got up. In dramatic style, it is submitted by learned Counsel for accused
No.2 Shri Gadgil that story and the entire screenplay were ready, only the
actors were to be casted which police did easily once they could get the
soft targets like the prosecutrix, her friend and accused in the case. The
words were put in the mouth of the prosecutrix and other witnesses by
the police and that's why there are several discrepancies, omissions and
contradictions which bereft the prosecution case of its truthfulness.
28. According to defence Counsels, absolutely no corroboration
is coming to the prosecution case either from the medical evidence or
forensic evidence. The conduct of test identification parades was a farce,
as both the prosecutrix and the witness Krishna were shown the accused
in person and also in photographs before test identification parade.
29. Thus, in nutshell, as per the submissions of learned Counsels
for accused, this case is the best example of fabrication and concoction,
for which otherwise also the police are famous for. It was done to get the
pat on back from political leaders and Media and also to take advantage
of amendment in criminal law which prescribes higher punishment in
case of repeat offenders. All learned Counsels have therefore, submitted
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that the proper scrutiny and appreciation of evidence in this case will
lead to no other inference but that of the prosecution failing to prove its
case beyond reasonable doubt against all the accused and, hence,
accused deserve clean acquittal.
30. On these facts of the case and the rival submissions
advanced before me by Spl.P.P. Shri Ujjwal Nikam and learned Counsels
for accused Nos.1 to 4, following points arise for my determination and I
record my findings thereon for the reasons stated below.
POINTS FINDINGS
1. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law
Akash agreed to do an illegal act viz. to commit
sexual assault i.e. forcible sexual intercourse with the
prosecutrix at Shakti Mill premises on 31/07/2013 ? ..Proved
2. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law,
named above, constituting a group of more than one
person, in furtherance of common intention
committed forcible sexual intercourse with
prosecutrix and thereby committed an offence
punishable under Section 376(D) of I.P.C.? ..Proved
3. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law,
named above, forcibly committed carnal intercourse
with prosecurix viz. penetrating penis in her anus
and mouth, against her will and without her consent
and thereby committed the unnatural offence
23
punishable under Section 377 of I.P.C. ? ..Proved
4. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law,
named above, assaulted and used criminal force to
prosecutrix a woman, with an intention of disrobing
and compelling her to be necked and thereby
committed an offence punishable under Section
354(B) of I.P.C.?

..Proved
5. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law,
named above, wrongfully restrained and confined
prosecutrix and her friend Krishna and thereby
committed an offence punishable under Sections
341 and 342 of I.P.C.?

..Proved
6. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law,
named above, committed criminal intimidation by
threatening the prosecutrix and her friend Krishna
with dire consequences and thereby committed an
offence punishable under Section 506(II) of I.P.C.? ..Proved
7. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law,
named above, voluntarily caused hurt to prosecutrix
and her friend Krishna by assaulting them and
thereby committed an offence punishable under
Section 323 of I.P.C.? ..Proved
8. Whether the prosecution proves that accused Nos.1
to 4 herein, along with juvenile-in-conflict-with-law,
named above, have committed above referred
offences punishable under Sections 376(D), 377,
354(B), 341, 342, 323, 506(II) of I.P.C. in pursuance of
the criminal conspiracy hatched by them? ..Proved

24
9. In the alternate, whether the prosecution proves that
accused Nos.1 to 4 herein, along with juvenile-in-
conflict-with-law, named above, have committed the
above said offences punishable under Sections
376(D), 377, 354(B), 341, 342, 323, 506(II) of I.P.C. in
furtherance of their common intention under
Section 34 of I.P.C.?
..Does not
arise
10. What order ? .. As per final
order
R E A S O N S
LEGAL POSITION :
31. It being a case of sexual offence, this Court has to bear in
mind certain principles of law, as crystallized from various
pronouncements of the Apex Court and High Courts, which has settled
the law as regards the appreciation of evidence of the prosecutrix in the
cases of sexual assault. In the authority State of Punjab V. Gurmit Singh
& Ors. AIR 1996 SC 1393 which is a landmark decision on this point, the
Apex Court has laid down that,
The testimony of the victim in sexual assault cases is vital
and unless there are compelling reasons which necessitate
looking for corroboration of her statement, the Court should
find no difficulty to act on the testimony of victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable.
The Apex Court in this authority has gone to the extent of laying down
that,
Seeking corroboration to the testimony of a victim in such
25
offence before relying upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should the evidence
of a girl or a woman who complains of rape or sexual
molestation, be viewed with doubt, disbelief or suspicion?
The Apex Court further held that,
Though while appreciating the evidence of a prosecutrix,
Court may look for some assurance of her statement to
satisfy its judicial conscience, since she is a witness who is
interested in the outcome of the charge levelled by her, but
there is no requirement of law to insist upon corroboration of
her statement to base conviction of an accused.
32. According to the Apex Court, the evidence of a victim of
sexual assault stands almost at par with the evidence of an injured
witness and to an extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not found to be self
inflicted, is considered to be a good witness in the sense that he is least
likely to shield the real culprit, the evidence of a victim of sexual offence
is entitled to great weight, absence of corroboration notwithstanding.
33. Apex Court has then laid down in unequivocal words a
guiding principle of law that, Corroborative evidence is not an
imperative component of judicial credence in every case of rape.
Corroboration as a condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of prudence under
26
given circumstances.
34. For laying down this guiding principle for appreciation of
evidence of victim of sexual assault, the Apex Court has taken the note of
the conditions of women in the Indian Society and was pleased to
observe that,
It must not be overlooked that a woman or a girl subjected
to sexual assault is not an accomplice to the crime but is a
victim of another person's lust and it is improper and
undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice.
According to the Apex Court, inferences have to be drawn in such cases,
from a given set of facts and circumstances with realistic diversity and
not dead uniformity lest that type of rigidity in the shape of rule of law is
introduced through a new form of testimonial tyranny making justice a
casualty. The Court cannot cling to a fossil formula and insist upon
corroboration even if, taken as a whole, the case spoken of by the victim
of sex crime strikes the judicial mind as probable.
35. These guiding principles of law, have been reiterated by the
Apex Court in several of its subsequent Judicial Pronouncements, the
latest being decision of Ganga Singh V. State of Madhya Pradesh (2013) 7
Supreme Court Cases 278, relied upon by Learned Spl.P.P. by stating in
27
emphatic words that,
Prosecutrix is a victim and not an accomplice in a sex
offence and there is no provision in the Evidence Act
requiring corroboration in material particulars of the
evidence of the prosecutrix as is in the case of evidence of
accomplice. Her sole testimony can be sufficient to prove
the guilt of the accused. At the most the Court can look for
evidence which may lend some assurance to her evidence
short of corroboration required in the case of an accomplice.
The nature of evidence required to lend assurance to the
testimony of the prosecutrix must necessarily depend
upon the facts and circumstances of each case.
As per the Apex Court,
If the totality of the circumstances appearing on the record of
the case disclose that prosecutrix does not have a strong
motive to falsely involve the person charged, the Court should
ordinarily have no hesitation in accepting her evidence.
MARSHALING OF EVIDENCE :
36. In the backdrop of these legal principles, if the evidence of
prosecutrix in this case is appreciated, then it has to be said that she has
proved to be a thoroughly truthful and honest witness. Her evidence is of
sterling quality and on her sole testimony the Court can place implicit
reliance, without looking for even the assurance, much less
corroboration. She is a young girl of 19 years living along with her
widowed mother, studying in night school and doing some job here and
there, like initially she was working in catering business where she came
to know P.W.19- Krishna who was also working there. They got acquainted
28
with each other and then fell in love. In the beginning, her mother
opposed but subsequently she accepted the relationship between the
prosecutrix and P.W.19- Krishna when they decided to get married.
EVIDENCE RELATING TO ACTUAL INCIDENT OF RAPE:-
37. In this backdrop of facts of the case, on the day of the
incident, on 31.7.2013 after her duty hours as Telephone Operator in
Parivartan Sandesh Foundation at Bhandup were over, prosecutrix and
P.W.19-Krishna decided to go to Mahalaxmi Temple and hence both of
them, as per her evidence, came by local train to Mahalaxmi Railway
Station. They reached there at about 7.30 p.m. Both of them then started
walking on the road outside Mahalaxmi Railway Station. On the way, she
stumbled and sustained injury to her foot. As it was paining a lot, she told
P.W.19-Krishna that they will go to Mahalaxmi Temple at some other time
and now, they will return to the house. It is deposed by her that as her
foot was paining, they asked the passers-by on the road, the nearest route
to Mahalaxmi Railway Station. Those passers-by told them that they were
also going to Mahalaxmi Railway Station and therefore, both i.e.
prosecutrix and P.W.19- Krishna started following them. That road was
passing through the deserted and derelict premises of Shakti Mill,
covered with shrubs, grass and the trees. As a result while walking on the
29
road, her injured foot got entangled in the creeper and started paining
severely.
38. As per her evidence, she had already undergone bone
operation of her left foot about one month prior to the incident and that
injury was not healed completely. As on that day it got injured twice,
there was severe pain. She and P.W.19- Krishna therefore, started walking
slowly. As a result, the passers-by whom they were following went ahead
and there was distance between them and the passers-by.
39. On the way, she sat on a step like cement platform to drink
water from the water bottle which she was carrying with her. While she
was drinking water, and P.W.19-Krishna was standing besides her, two
boys came there. They held her hand and started dragging her and
Krishna inside the shrubs. She got very scared and started shouting
'Soda', 'Soda', 'Vachva 'Vachva' ( 'Leave me' 'Save me'). However, those
two boys started assaulting her. One of them pulled her Odhani(Dupatta)
and started tying up the hands of Krishna with that Odhani. Krishna
resisted them. By that time first person, whom she has later identified as
accused no.3 Mohd.Salim, gave his mobile to the second person, later
identified by her as accused No.2 Mohd.Kasim and the said person i.e.
30
accused no.2 Mohd. Kasim said on mobile ,maal aala aahe, spot pe aa ja
phataphat and then one more boy came there, whom she has later
identified as accused no.1 Mohd.Ashfaq.
40. As per her evidence, the second person i.e. accused No.2-
Mohd. Kasim and third person i.e. accused No.1-Mohd.Ashfaq again
assaulted Krishna. They tied his hands with her odhani. With the
remaining portion of the odhani, accused No.2-Mohd. Kasim tied the
mouth of Krishna. When Krishna pushed him, accused No.2-
Mohd.Kasim threatened Krishna that if he shouts, he will kill him there
itself. It is deposed by her that the first person i.e. accused No.3-Mohd.
Salim then held her and forcibly dragged her inside the shrubs holding
her hand, despite her requests not to do so. She was shouting and crying.
41. By that time, according to her evidence, fourth person, whom
she has later identified accused No.4-Vijay, also came there and he
assaulted her. Accused No.1- Mohd.Ashfaq then put his handkerchief in
her mouth as she was shouting. The first and third person i.e. accused
No.3-Mohd.Salim and accused No.1-Mohd. Ashfaq then took her inside
the shrubs. She was resisting them but they insisted on her to remove her
clothes. When she refused, they assaulted her. As a result, she held the
31
shirt of the first person i.e. accused No.3-Mohd.Salim. His shirt was
therefore, torn. In the said scuffle, his locket and her bracelet were
broken. The second person i.e. accused No.1 Mohd.Ashfaq then held her
hands and removed her clothes. The first person i.e. accused no.3 Mohd.
Salim removed all his clothes, pushed her and fell her on the ground. As
per her evidence, he asked her to take his penis in her mouth. When she
refused, he forced his penis in her mouth. At that time he was standing
and he has made her to sit on her knees. Then he made her to lie down
on the ground and inserted his penis in her private part. Then second
person i.e. accused No.3-Mohd.Salim who was with him i.e. accused No.1
Mohd. Ashfaq removed his clothes and he did the same thing.
42. As per her evidence, thereafter accused No.1 Mohd. Ashfaq
made phone call and and said on phone 'mera kam ho gaya, abhi tu aa
ja', third person whom she has identified as accused no.2 Mohd. Kasim
came there. He also removed his clothes. She told him that she was
suffering from pain, and therefore, he should leave her. However, he did
not listen. He said that she was complaining a lot. Then he beat her and
inserted his penis in her private part. When she told him that she was
feeling lot of pain and please leave her, he did not listen.
32
43. Then fourth person, whom she has identified as accused no.
4. Vijay Jadhav, came there. He also removed his clothes, lied on her body
and inserted his penis in her private part. Thereafter, fifth person, whom
she has identified as juvenile-in-conflict-with-law Akash came there
saying Kidhar hai, Kidhar hai and the fourth person i.e. accused no.4
Vijay Jadhav told him idhar hai idhar hai, aaja. The fifth person i.e.
juvenile- in-conflict-with-law Akash also came near her and removed his
clothes. He also inserted his penis in her mouth. Hence, she started like
vomiting. Then that person put condom on his penis and forcibly
inserted his penis in her private part.
44. As per her evidence by that time, accused No.3 Mohd. Salim
and accused No.1 Mohd. Ashfaq again came there and they made her to
stand in nude condition. The first person i.e. accused No.3 Mohd. Salim
pressed her breast. He was nude and in standing position inserted his
penis in her private part. After him the second person i.e. accused No.1
Mohd. Ashfaq in the standing position itself, inserted his penis in her
anus. At that time he was not wearing clothes. It is her evidence that
when the second person i.e. accused No.1 Mohd. Ashfaq in standing
position inserted his penis in her anus, the first person i.e. accused No.3
Mohd. Salim has held her.
33
45. In her evidence before the Court prosecutrix identified
accused No.1 Mohd. Ashfaq and accused No.3 Mohd. Salim as those two
accused persons who had forcibly inserted their penis in her mouth and
who had committed rape on her from front and back side in anus in
standing position. In evidence before the Court she has also identified
accused no.4 Vijay Jadhav and accused no.2 Mohd. Kasim as those two
accused persons who had tied the hands of P.W.19- Krishna with her
Odhani. She has also identified accused no.1 Mohd. Ashfaq as the same
person who has put handkerchief in her mouth. She has further
identified accused no.2 Mohd. Kasim as the person who had made a
phone call and said spot pe aa jao, maal aaya hai.
46. It is deposed by her that after those persons left her, she
started wearing whichever clothes were there. At that time she noticed
the blood on her hand which was oozing from her private part. She could
not find her nicker and brassiere there. She could find only her Payjama
and Kurta. She wore those clothes. Then two accused again came there
and threatened her that if she disclosed to her friend whatever has
happened, they will kill both of them. Then those two accused persons
brought her where Krishna was held up with his hands tied. She found
that Krishna had sustained lot of beating and there was bleeding also.
34
Those accused persons freed the hands of Krishna and then brought both
of them to Mahalaxmi Railway track. They threatened prosecutrix and
Krishna not to disclose about the incident to anyone and not to go to
Police Station, otherwise they will kill them. Saying so, all the five accused
went in opposite direction. She was crying and suffering with pain.
Therefore, Krishna asked her what has happened and then she told him
whatever has happened that those five persons committed rape on her.
47. This entire evidence of the prosecutrix about the actual
incident of rape, which she has gathered courage to state despite the
tremendous agony and suffering which she was undergoing at the time of
incident and while reliving it at the time of giving evidence in the court, is
reproduced in detail to bring on record not only the gravity of the offence
but as it contains the graphic details of the incident including the specific
role played by each accused. Needless to state that her testimony which
was successfully withstood the test of cross-examination, is alone
sufficient to prove the guilt of each of the accused.
48. It is apart that her evidence is getting full and complete
corroboration from the evidence of her friend Krishna. According to his
evidence also, both of them were in love with each other and had decided
35
to get married. The prosecutrix's mother has recently given approval for
their marriage though initially she was opposed to it. Hence, both of
them decided to go to Mahalaxmi Temple. Accordingly, on 31.7.2013 they
proceeded from Bhandup Railway Station to Mahalaxmi Railway Station
by local train. They got down at Mahalaxmi Railway Station at about 7.30
p.m. Then they came out of the railway station and started walking
towards E' Moses Road.
49. As per his evidence, while they were walking in the lane of
Shakti Mill, prosecutrix sustained injury to her left foot. Therefore, they
cancelled going to Mahalaxmi Temple and decided to return to the
house. They decided to take shortcut through the compound of Shakti
Mill. However, when they were walking, prosecutrix's left foot got
entangled in the creepers and hence, it started paining severely.
Therefore, they were walking slowly.
50. It is his evidence that on the way they sat on one platform.
Then prosecutrix took out water bottle from her bag and started drinking
water. At that time two persons, whom he has later identified as accused
No.3 Mohd. Salim and accused no.2 Mohd. Kasim Shaikh came there and
started assaulting them. He pushed those persons away. At that time the
36
water bottle in prosecutrix's hand fell down. One of those two persons
snatched prosecutrix's Odhani and tried to tie him with that Odhani. He
again pushed those two persons. Then first person i.e. accused No.3
Mohd. Salim dialled on his cell phone and gave that cell phone to second
person i.e. accused No.2 Mohd. Kasim and then accused No.2
Mohd.Kasim said on that mobile that Bhai tu kidhar hai, spot pe aaja,
maal aaya hai, phata phat aaja.
51. Thereafter according to his evidence, third person came
there, whom he has identified as accused no.1 Mohd. Ashfaq. As per his
evidence, accused No.2 Mohd. Kasim and accused no.1 Mohd. Ashfaq
tied his hands with half portion of the Odhani and his mouth with
remaining half portion of Odhani. Then they fell him on the ground. The
second person i.e. accused No.2 Mohd.Kasim then lifted one stone, took
it in front of his face and said to him gandu, jyada chillaya to yahi mar
dalenge.
52. It is his evidence that when first person i.e. accused No.3
Mohd. Salim started taking the prosecutrix inside and she was trying to
push him, the fourth person i.e. accused no.4 Vijay came there. As
prosecutrix was still shouting, accused No.1 Mohd.Ashfaq removed
37
handkerchief from his pocket and tied the mouth of prosecutrix with
that handkerchief. Then accused No.3 Mohd. Salim and accused No.1
Mohd. Ashfaq took the prosecutrix inside. As he was tied and other two
accused persons remained with him, he could not make any movement.
As per his evidence, by that time fifth person, whom he has later
identified as juvenile-in-conflict-with-law Akash, came there. He also
assaulted him and stood near him.
53. According to the evidence of P.W.19 -Krishna, the place where
the prosecutrix was taken was not visible from the place where he was
tied. After sometime first person i.e. accused No.3 Mohd Salim returned
and took with him second person i.e. accused No.2 Mohd. Kasim. Then
first and third person i.e. accused No.3 Mohd. Salim and accused No.1
Mohd.Ashfaq came near him and the fourth and fifth person i.e. accused
No.4 Vijay and juvenile-in-conflict-with-law Aaksh, who were standing
near him went inside towards prosecutrix and the fat person i.e. accused
No.2 Mohd. Kasim returned to him. Then again accused No.3 Mohd.
Salim and accused no.1 Mohd. Ashfaq again went inside where
prosecutrix was taken. Then those two persons brought prosecutrix
outside.
38
54. He has categorically deposed that at that time, the
prosecutrix was in frightened condition and she was crying. Her clothes
were torn. Her bracelet was not in her hand. Her hair were in disordered
condition. Those accused persons then brought them towards railway
track. The first person i.e. accused No.3 Mohd. Salim and second
person-accused No.2 Mohd. Kasim gave threatening to them that if they
inform to the Police, they know where prosecutrix is staying and they will
kill her. As per his evidence, both of them were frightened and they
started proceeding towards Mahalaxmi Railway Station. Whereas those
five accused persons then went in another direction.
55. As per his evidence at Mahalaxmi Railway Station, he made
prosecutrix to sit, gave her water to drink and asked her what had
happened. She told him that those five persons had committed forcible
sexual intercourse with her and did dirty things with her.
56. Thus, as regards actual incident, the evidence of the
prosecutrix and P.W.19- Krishna stands completely corroborated interse.
Both of them have given the detail account of sequence of the events.
Both of them have also given description of those five accused persons in
detail like their height, age, complexion and whether they were having
39
mustache or otherwise. Both of them have stated the acts of commission
of sexual and physical assault by each individual accused persons.
57. If at all there is any discrepancy about identification of each
accused, prosecutrix has identified them in her evidence as first, second,
third or fourth person in sequence in which each of them have came
inside to rape her whereas Krishna has identified them in the sequence in
which they arrived at the spot. Prosecutrix has in her evidence itself made
this fact clear by describing the role played by each accused.
58. Both prosecutrix and Krishna have corroborated each other
on the aspect as to how from Mahalaxmi Railway Station, when they were
proceeding towards Mahalaxmi Temple, they landed at Shakti Mill
premises. Their evidence also fully supports and corroborates each other
as to the prosecutrix sustaining injury to her left foot on which she was
already operated about one month prior to the incident. Both of them
have corroborated each other on the aspect that due to injury to her foot,
they dropped the plan of going to Mahalaxmi Temple and decided to
return to the house. Their evidence also corroborates on the aspect that
they made inquiry with the passers-by about shortest route to Mahalaxmi
Railway Station. Though P.W.19-Krishna has not stated about this fact in
40
his examination in chief, in his cross-examination, it is brought on record
that as they were walking slowly, passers-by who were showing them the
way went ahead, mainly because the prosecutrix stopped at one place to
drink water.
59. Their evidence goes hand in hand on the aspect that initially
two accused persons came there and they called other three accused
persons and then all five of them committed sexual intercourse and
sexual assault on the prosecutrix one after another, at the same time
detaining and keeping watch on the P.W.19 Krishna in turn. The
sequence as to which accused went first, which accused remained with
Krishna and in which manner they assaulted him and subjected
prosecutrix to sexual assault has been given by both of them with vivid
account and it tallies completely, leaving no scope for any doubt or
suspicion about occurrence of the incident as narrated by them.
60. If at all anything remained to be stated by the witness P.W.19-
Krishna in his examination-in-chief, it is brought on record in his cross-
examination, for example, in cross-examination by Learned Counsel for
accused no.1 it is brought on record that on the way they met two
persons by name Anand and Hasan who were his friends. It is also
41
brought on record that on the way in Shakti Mill premises, they met one
man and two ladies i.e. passers-by to whom they had asked about nearest
route to Mahalaxmi Railway Station, which ultimately took them to the
spot of incident.
61. It is also brought on record in cross-examination of P.W.19-
Krishna by Advocate for accused no.2 that he and prosecutrix had
decided to go to Mahalaxmi temple when her mother gave approval to
their marriage. On the day of incident when they met at Bhandup
Railway Station they decided to go to Mahalaxmi Temple. Thus, as
regards the actual incident, the reason why they landed at deserted
premises of Shakti Mill, there is complete corroboration to the evidence
of the prosecutrix from the cross-examination of P.W.19- Krishna also.
There is immediate disclosure of the incident by the prosecutrix to
Krishna which gives the necessary credence and assurance to the
testimony of the prosecutrix. As a matter of fact the subsequent conduct
of the prosecutrix and P.W.19 Krishna gives further assurance to her
testimony about the occurrence of the incident, if such assurance is
needed.
42
EVIDENCE RELATING TO THEIR STAY AT VILLAGE DOHATRA IN
CHATTISGARH:
62. As per her evidence, Krishna suggested to her that they will
inform about the incident to her mother. However, she refused to do so
on the ground that her mother has already suffered and she will get
mentally shocked and may commit suicide and then she will also commit
suicide. Then Krishna gave her the assurance of getting married with her
and consoled her.
63. This fact is corroborated by Krishna also. As per his evidence
also, when he said to her that they will inform to her mother about it, she
said 'no' because if her mother comes to know about it, her mother will
suffer mental shock and her mother may commit suicide and if her
mother commits suicide, she will also commit suicide. Hence, he also
suggested to her that they would go to her mother's house and get
married but she said that she was feeling awkward. Therefore, both of
them thought over the matter. Then he suggested to her that they can go
to the house of his friend Manoj at Chattisgarh and stay there for some
days. As per his evidence, prosecutrix agreed for the same.
64. At that time however, as prosecutrix was not having Odhani
43
with her and her Kurta was torn in the incident and she was not having
underclothes which were left on the spot, both of them went to over-
bridge and bought one T-shirt for her.
65. As per evidence of P.W.19 Krishna he was not having money
with him in order to go to Chattisgarh, therefore, he made phone call to
his Seth P.w.4 Dipesh Pumbhalia and told him that his father was sick and
he wants to go urgently to his village therefore, he requires some money.
It is his evidence and the evidence of the prosecutrix also that as P.W.4-
Dipesh Pumbhalia called Krishna at Ghatkopar to collect the money,
both of them went to Ghatkopar Railway Station. There prosecutrix stood
near ticket counter, Krishna crossed the road and went to meet P.W.4
Dipesh Pumbhalia who gave him Rs.1500/-. Then along with prosecutrix
Krishna returned to V.T.Station. Both of them stayed on the platform for
the remaining night. In the morning by Mumbai Hawrah Geetanjali
Express they proceeded towards village Dohatra. They got down from the
train at Bilaspur in night at about 12 O' clock. They stayed for the
remaining night on the platform and in the morning they proceeded to
Village Dohatra.
66. It is their further evidence that after they went to village
44
Dohatra, prosecutrix made phone call to her mother and told her that she
was with Krishna and she should not take tension about her. Then both
of them went to the house of Krishna's friend P.W.6 Manojkumar
Satnami. Krishna told him that prosecutrix was his wife, both of them
were married and had come there for outing. They stayed in his house
for about one month. During that period, as per evidence of P.W.19-
Krishna, prosecutrix used to cry daily remembering that incident as she
was also suffering from pain. He took her to the Doctor at Dohatra.
67. This part of evidence of the prosecutrix and P.W.19-Krishna
is getting complete corroboration from the evidence of P.W.4 Dipesh
Pumbhalia who is knowing P.W-19 Krishna as he was working with him as
'helper' in his catering business from January, 2013 till July, 2013.
According to his evidence, on 31.7.2013 at about 8.30 to 9.00 p.m. he
received the phone call from P.W.19-Krishna informing him that his
father was ill and therefore, he wants to go to his village in Chattisgarh
urgently and hence requires money. It is deposed by him that at that
time, he was in the house of his maternal uncle at Ghatkopar(E),
therefore, he told P.W.19-Krishna that he needs some time and he asked
him to come to Ghatkopar Railway Station. He reached there at about
11.30 p.m. to 12.00 O'clock in the night, there he met Krishna and gave
45
him Rs.1500/-. It is his evidence that since then he had no occasion to
meet Krisihna. P.W.19-Krishna has also not joined the work with him
thereafter. In his cross- examination, it is brought on record that during
the period of seven months, P.W.19-Krishna has worked with him for
20-25 times which fortifies the evidence of P.W.19-Krishna and also
further supports the case of the prosecution that he has given this
amount to Krishna towards his earnings.
68. Then there is evidence of Krishna's friend P.W.6 Mr.
Manojkumar Satnami who is resident of village Dohatra in Chattisgarh.
As per his evidence, he was knowing Krishna as both of them were
working in catering business in Mumbai. In his cross-examination it is
brought on record that after he left Mumbai and went to his village, P.W.
19-Krishna had visited his house 2-3 times. So there was nothing
unnatural in P.W.19- Krishna deciding to visit his house along with the
prosecutrix. It is further deposed by him that on 2.8.2013 at about 7.00
a.m. P.W.19-Krishna came to his house along with girl, who was
introduced by Krishna as his wife and Krishna told him they had come to
the village for outing. It is his evidence that, both of them stayed in his
house for one month and then left for Mumbai on 31.8.2013.
46
69. In evidence before the Court he has identified both P.W.19-
Krishna and prosecutrix in the photographs at Exh. 26/1, 26/2 and 26/8
which were clicked at the time of spot panchanama. In his cross-
examination nothing is brought on record to disbelieve him except for
the fact that he is residing along with his parents and sister and he found
both Krishna and prosecutrix were happy. According to his evidence, P.W.
19 Krishna had only told him that he had got married with prosecutrix
but not stated when. It is further brought on record that the prosecutrix
was talking with him occasionally when she was in village.
70. A serious attempt is made by the defence Counsels to
contend that if the prosecutrix and P.W.19 Krishna were happy, as stated
by him, then it falsifies the alleged incident of gang rape. However, on
this aspect, the cross-examination of P.W.19 -Krishna is very relevant. He
has stated that in presence of P.W.6 Manojkumar and his family
members, prosecutrix used to remain happy. However, when they were
alone in the room she used to cry, remembering the incident.
71. Further details of their stay in his house are brought out in
his cross-examination that house of this witness is consisting of 4-5
rooms. In cross-examination, prosecutrix has also stated that there were
47
totally three rooms in the house of PW-19 Krishna's friend Manoj and she
and Krishna used to sleep in the first room whereas other family
members were sleeping in the next room. P.w.19-Krishna used to go out
with his friend for helping his parents in the field whereas she used to
sleep and sit in the house. When P.W.6 Manojkumar's family members
had asked her why she was sleeping, she told them that her foot and
waist were paining. These facts elicited in cross-examination of these
three witnesses about their stay in the village in the house of P.W.6
Manojkumar Satnami further fortify their evidence on material aspects
that for a period of about one month prosecutrix and Krishna were in the
house of P.W.6 Manojkumar.
EVIDENCE RELATING TO THE MISSING COMPLAINT :
72. On this aspect that for about a month after the incident
prosecutrix and Krishna were not in Mumbai, there is also evidence of
P.W.10 Pramila the mother of prosecutrix who has completely
corroborated and fortified the evidence of the prosecutrix that on
31.7.2013, the prosecutrix left the house at 9.30 a.m. in order to go to
office for her job as Telephone Operator in 'Sandesh Parivartan
Foundation'. However, she did not return to the house as usual and
therefore, on the next day, in the morning she made a phone call in
48
'Sandesh Parivartan Foundation' and inquired about her. She was
informed that prosecutrix had attended the office on 31/07/2013 but on
01/08/2013 she had not come to the office. Hence, she went to Bhandup
police station and lodged missing complaint of prosecutrix.
73. In the Missing Complaint she has given description of the
clothes which the prosecutrix was wearing when she went to the office on
31.7.2013. As per her missing complaint (Exh.45) the prosecutrix was
wearing Punjabi Suit and odhani of black colour with silver border and
bracelet of blue and white beads. In evidence before the Court she has
identified Muddemal Art. No.10 Odhani which was recovered from the
spot of incident. The description prosecutrix's dress as Punjabi Suit given
in Missing Complaint is also tallying with the clothes which according to
the evidence of prosecutrix also she was wearing on the day of the
incident. She has also identified the beads of bracelet i.e. Muddemal
Article No.2 recovered from the spot which prosecutrix was wearing on
the day of the incident.
74. It is her further evidence that on 2.8.2013 at about 7.00 a.m.,
she received phone call from prosecutrix in the shop which was near her
house. Prosecutrix told her on phone that she was with Krishna and her
49
mother should not worry about her. As per her evidence, she told
prosecutrix on phone that she should return to the house. However,
prosecutrix told her that she was in pains and she will come later. Saying
so, prosecutrix disconnected the phone. Thereafter 2-3 times,
prosecutrix had phoned her. She used to ask her on phone where she
was and why she is not returning to home? However, prosecutrix told her
that she will return to the house after sometime.
75. As per her further evidence, after she came to know
whereabouts of the prosecutrix, she went to Bhandup police station to
withdraw the Missing Complaint lodged by her. However, Police told her
that to bring the prosecutrix to the Police Station and then only they will
cancel the Missing Complaint.
76. The fact that she had lodged the Missing Complaint is proved
through the contemporaneous document like Missing Complaint (Exh.
45) and also from the extract of the Missing Register(Exh.31) which is
proved through the evidence of P.W.22 PSI Yashwant Baravkar. As per his
evidence on 1.8.2013 when he was on day duty as SHO at Bhandup Police
Station at about 1.00 p.m., Prosecutrix's mother came to the Police
Station. and informed that her daughter - prosecutrix had not returned to
50
the house from the evening of 31.7.13. He recorded her statement
accordingly vide Exh.45 and on the basis of her statement he registered
the Missing Complaint No.123/13. The extract of Missing Register is
produced at Exh.31.
77. He has deposed that he sent police to make inquiry at the
place where she was working and at her friends but she was not found.
Meanwhile on 11.8.2013 Prosecutrix's mother came to the police station
and stated that she had received phone call from her daughter and
therefore Missing Complaint be cancelled. However, P.W.22 PSI Baravkar,
informed her to bring her missing daughter to the Police Station when
she returns and then only Missing Complaint will be cancelled.
78. Further corroboration is coming to this part of evidence from
another source i.e. P.W. 9 Ms.Vaishali Bons who is running the NGO by
name Parivartan Sandesh Foundation at Bhandup(West). She has
corroborated the evidence of the prosecutrix to the effect that prosecutrix
had come to her office on 19.7.2013 for the job of telemarketing and, at
that time she had given her Bio-Data(Exh.40), which is in handwriting of
the prosecutrix and she had made endorsement thereon in her
handwriting. It is deposed by her that prosecutrix has joined her training
51
from 20.7.2013. On 21.7.2013 it was Sunday and she was absent on 22
and 23.7.2013. However, from 24.7.2013 to 31.7.2013 she was present for
the training.
79. This witness has produced on record the original
register/Muster of the attendance of the employees maintained by her in
her office. As per her evidence, at that time there were totally 10
employees in her office and their office timing was from 10.00 a.m. to
6.00 p.m. It is her evidence that her NGO is working for the special
children i.e. disabled persons and there are totally 10 telephone lines in
her office. It is further stated by her that in the Attendance Register,
against the name of the employee, her office used to write letter 'T'
meaning thereby employee was present for training and letter 'A'
meaning thereby employee was absent for the training. This attendance
register for the month of July and August, 2013(Exh.41 Colly) and its xerox
copy produced in the charge-sheet (Exh.42 colly) corroborate her
evidence to the effect that prosecutrix has attended her duties on
31.7.2013 but since 1.8.2013 was absent from duty.
80. As per evidence of this witness also on 1.8.2013 prosecutrix's
mother has phoned her and asked whether prosecutrix had come for the
52
duty and she told her that she had not come and thereafter also
prosecutrix has never come to the office.
81. Thus, the evidence of the prosecutrix that on the day of the
incident she has attended the office and after office hours she had gone
to Mahalaxmi Railway Station along with P.W.19-Krishna and after the
incident she and P.W.19 -Krishna had gone to the village Dohatra in
Chhatisgarh to the house of P.W.6 Manojkumar Satnami after borrowing
money from P.W.4 Dipesh Pumbhalia and then stayed in the house of
Manojkumar for one month stands fully and completely proved through
the evidence of these three witnesses and with the fact that Missing
Complaint lodged by her mother which she wanted to cancel when came
to know that prosecutrix was with Krishna.
82. This oral evidence stands further corroborated through
contemporaneous documents like Missing Complaint (Exh.45), extract of
Missing Register(Exh.31), Attendance register maintained in the office
(Exh.41 & 42) leaving no manner of doubt that during the relevant period
of one month prosecutrix and P.W.19- Krishna were not in Mumbai and
they had gone to the house of his friend P.W.6 Manojkumar Satnami. This
evidence is important on the aspect of delay in lodging of FIR. This
53
evidence is also important to prove that subsequent conduct of the
prosecutrix and P.W.19-Krishna was natural conduct after such traumatic
incident.
EVIDENCE RELATING TO SUBSEQUENT EVENTS:
83. Now coming to the prosecution case, as it has unfolded
through the evidence of prosecutrix and her friend Krishna. It is deposed
by them that during their stay at village Dohatra as prosecutrix was
suffering from pain, Krishna took her to the lady Doctor by name Nigam.
Doctor gave her some tablets which she was taking during their stay in
the house of Krishna's friend Manoj. This evidence is brought out in
cross-examination of the prosecutrix. It was asked to her, whether she
can tell the name of the doctor where she was taken in the village by
Krishna and she stated that, she was lady doctor by name 'Nigam'. Lady
doctor has examined her. But she did not ask her nor she herself
disclosed about the incident to the doctor. It is brought out through her
cross-examination that on the very day when they reached village
Dohatra, they went on bicycle to Dr.Nigam.
84. P.W.19 Krishna has also deposed that prosecutrix used to take
medicines given by Dr.Nigam. According to his evidence, when
54
prosecutrix was examined by lady Doctor, he was waiting outside the
Clinic. He has further deposed that when his statement was recorded by
the Police he had stated name and village of the doctor and in his
presence, Mumbai police had made phone call to the doctor and made
inquiry. This evidence is supported by evidence of P.W.31 PI Sanjay
Nikumbhe also who has deposed that he talked with the Doctor Nigam
on the phone number given by P.W.19 Krishna and at that time Krishna
was present. Doctor has further told him that she has not asked anything
to the victim about the rape. Doctor has also told him that she has
prescribed some medicines to prosecutrix. According to him, he did not
ask Doctor whether Doctor has prepared the case paper. However, he
knew the name of the Doctor as Dr.Nigam and she was lady doctor. Thus,
oral evidence of the prosecutrix, P.W.19 Krishna and P.W.31 PI Nikumbhe
is again tallying completely with one another on this aspect.
85. Reverting to the subsequent case of the prosecution, that of
prosecutrix and P.W.19 Krishna returning from village Dohatra to
Mumbai. As per the evidence of prosecutrix and Krishna, on 31.08.2013
they came to Bhatapara Railway station near Bilaspur in order to return
to Mumbai. They reached to Mumbai on 01/09/2013 at about 12 o'clock
in the noon at V.T.Station. Then prosecutrix made phone call to her
55
mother. As per evidence of the prosecutrix, her mother asked her why she
was stressed and not coming to the house. Prosecutrix told her that she
was feeling very awkward to come to the house and she will meet her
outside and inform her everything. Then she called her mother at
Chintamani Garden in Mulund. Thereafter as deposed by the prosecutrix
and Krishna, they went to Chintamani Garden. There prosecutrix met
her mother.
86. As deposed by prosecutrix's mother also on 01.9.2013, she
received phone call from prosecutrix, when she asked her where she was
and told her to come to the house, prosecutrix said that she would like to
meet her at some place outside the house and she will not come to the
house as she was feeling awkward. Accordingly she met prosecutrix and
P.W.19 Krishna at Chintamani Garden at Mulund (E). Seeing her,
prosecutrix started crying. She consoled her and then brought her to
their house. She gave Krishna the address of one company and sent him
there for staying over night whereas prosecutrix came along with her
mother to her house.
87. It is evidence of the prosecutrix and her mother that in the
night after dinner, when her mother made inquiry with her as to where
56
she was for so many days, Prosecutrix told her that on 31/07/2013 in the
evening when she had gone along with Krishna to Mahalaxmi Temple,
she sustained injury to her foot, therefore, she and Krishna were
returning towards Mahalaxmi Railway Station through the premises of
Shanti Mill. At that time, five unknown persons came there, assaulted her
and Krishna and all those five persons committed forcible rape on her
and hence after the incident she and Krishna had gone to Chattisgarh.
88. As per evidence of the prosecutrix, her mother was mentally
shocked after hearing this. She started feeling unwell. Therefore, on the
next day she took rest. This evidence is corroborated by the evidence of
P.W.19 Krishna also who has stated that on the next day i.e. on 02/09/2013
at about 11 a.m., he went to the house of prosecutrix and found that her
mother was sleeping on the cot. He asked prosecutrix what has
happened to her mother and she told him that her mother was mentally
shocked after hearing about the incident. According to the evidence of
P.W.19 Krishna he waited with them and gave assurance to prosecutrix's
mother.
EVIDENCE RELATING TO LODGING OF COMPLAINT AT BHANDUP
POLICE STATION:
89. It is deposed by three of them that in the evening, her
57
mother said that she had given missing complaint at Bhandup police
station and they will go there to cancel it. Accordingly three of them went
to Bhandup police station at about 10.00 p.m. As per evidence of
prosecutrix's mother, in Bhandup Police Station in the Register of
Missing Complaints her signature and signature of prosecutrix were
obtained. The lady Police Officer who was present there made inquiry
with the prosecutrix as to where she was for so many days. At that time
prosecutrix started crying and then told her about the incident of rape
dated 31/07/2013 and then her complaint came to be recorded as per her
say.
90. The prosecutrix has also deposed accordingly that when
Lady Police Officer made inquiry with her she told her about the incident
and then her complaint was recorded vide Exh.47 at Bhandup Police
Station. As per evidence of P.W.19 Krishna also, one lady police officer
took prosecutrix inside and made inquiry with her and then recorded her
statement. Thereafter they were brought in the morning to N.M.Joshi
Marg police station where his statement came to be recorded.
91. If at all any corroboration is required to this evidence, then it
is also coming from the evidence of P.W.22 PSI Baravkar attached to
58
Bhandup Police Station, who has stated that on 2/9/13 while he was on
night duty at about 10.30 p.m. prosecutrix's mother came to the Police
Station along with prosecutrix and Krishna. He made inquiry with her
and then cancelled the Missing Complaint. Accordingly entry was made
in the Register. At that time prosecutrix was weeping. Hence he called
P.W.23 lady PSI Deepali Kulkarni and made inquiry with the prosecutrix.
The statement of the prosecutrix which is subsequently treated as
complaint (Exh.47) was recorded accordingly.
92. It is their evidence that when WPSI Kulkarni made inquiry
with the prosecutrix about the spot of incident, she was unable to state it
exactly. Hence on the google map she was shown the place which she has
identified. That place was of Shakti Mill premises. Then they filled up the
printed proforma of FIR in which they mentioned the place of incident.
That proforma(Exh.47-A) is signed by prosecutrix, PSI Baravkar and WPSI
Kulkarni. As per their evidence as the spot of incident i.e. Shakti Mill
premises was not in their jurisdiction and was in the jurisdiction of
N.M.Joshi Marg Police Station, they registered the FIR under 00 number
and then P.W.22 PSI Baravkar took prosecutrix, her mother and Krishna to
N.M.Joshi Marg Police Station.
59
93. P.W.23 WPSI Deepali Kulkarni has corroborated this evidence
of PSI Baravkar that on 2.9.2013 while she was also on night duty at
Bhandup Police Station, at about 10.00 to 10.30 p.m. the missing girl the
prosecutrix came there along with her mother and Krishna. When her
Missing Complaint was cancelled, she was weeping, hence PSI Baravkar
called her and he told her that prosecutrix was saying something about
sexual assault and hence she should make inquiry. According to her
evidence, she made inquiry with the prosecutrix and PSI Baravkar was
recording the statement/complaint accordingly vide Exh.47. It is her
further evidence that as prosecutrix was not knowing the exact spot of
the incident, they showed her the said spot on google map. Prosecutrix
identified the spot which was in Shakti Mill Compound from the
entrance by E.Moses road. Accordingly her FIR was reduced in printed
proforma. As the spot of incident was in the jurisdiction of N.M.Joshi
Marg police station, the complaint was sent to the N.M.Joshi Marg police
station Prosecutrix was sent there along with her mother, Krishna and
their staff. In cross-examination it is brought out that prosecutrix was
there for about 3-4 hours along with her mother and PSI Baravkar. Except
that, there is nothing in her cross-examination to disbelieve this aspect of
the prosecution case.
60
EVIDENCE RELATING TO REGISTRATION OF OFFENCE AT N.M.JOSHI
MARG POLICE STATION:
94. Taking this case forward from Bhandup Police Station to
N.M.Joshi Marg Police Station, in addition to the evidence of the
prosecutrix, her mother and Krishna, there is evidence of P.W.29 WPSI
Neetu Tayade who was on Night Duty as Station House Officer in
between 2.9.2013 to 3.9.2013 at N.M.Joshi Marg Police Station. As per her
evidence on 3.9.2013 at about 5.00 to 5.15 a.m. PSI Baravkar of Bhandup
Police Station came there along with his staff, the prosecutrix, her mother
and Krishna. PSI Baravkar handed over to her the FIR which was
registered at Bhandup police station under 00 number. She perused the
said complaint. The spot of incident, as stated in the complaint, was
within the jurisdiction of N. M. Joshi Marg Police Station. Hence, she
registered the offence at her police station bearing C.R.No. 253/13 for the
offences u/s. 376(d), 377, 341,342,323,504,506(II) r/w 34 of I.P.C. It is
deposed by her that she filled up the printed proforma of FIR(Exh.79) and
sent the copy of the same by hand delivery with Constable Wadkar to the
Magistrate on the same date. The FIR (Exh.47), its printed proforma(Exh.
47-A) of Bhandup Police Station and printed proforma of FIR (Exh.79)of
N.M.Joshi Marg Police Station which are contemporaneous documents
thus fully support and corroborate the case of the prosecution on this
61
aspect, coupled with the evidence of prosecutrix, her mother and
Krishna. The FIR (Exh.47) shows that it was registered at 2.10 hours on
3.9.2013 at Bhandup Police Station whereas printed proforma (Exh.47-A)
shows that it was registered at 5.30 a.m. on the same day at N.M.Joshi
Marg Police Station.
95. Prosecution case is further unfolded through evidence of P.W.
29-WPSI Neetu Tayade that, as prosecutrix wanted to give some more
information which was not there in the complaint recorded at Bhandup
Police Station, she recorded her supplementary statement. At the time of
recording her supplementary statement, she was alone with the
prosecurix. Thereafter, she also recorded the statement of the
prosecutrix's mother and then at about 9.30 a.m. investigation of this
crime was handed over by Sr.PI Gharge to P.W.25 PI Mane.
EVIDENCE RELATING TO SPOT PANCHANAMA:
96. As per evidence of P.W.25 PI Arun Mane after perusal of the
investigation papers, he started further investigation. He made inquiry
with the victim to know whether she can show the spot of incident. When
she said 'yes', he called the photographer, the team of C.A. and the dog
squad and went to the spot along with the victim and P.W.19 Krishna. He
62
also took the material required for making panchanama.
97. P.W.25-PI Mane has further deposed that when they reached
near Mahalaxmi railway station, prosecutrix told them to proceed via E.
Moses road to Shakti Mill lane. After they reached to the lane, prosecutrix
told them that the spot of incident was inside the premises of Shakti Mill.
Hence, he called two panchas. Thereafter the prosecutrix and P.W.19
Krishna took them inside Shakti Mill. There she showed the first spot
where she had sustained injury to her foot. The photographs of that spot
were taken. Then they proceeded ahead. Thereafter she showed them the
place where PW-19 Krishna was kept tied with odhani. The photographs
of that place were also taken. Then she showed them the spot where she
was raped. There she showed them a quilt, the beads of her bracelet
which were spread there. She also showed them used condom and one
footwear of red and black border which according to her was one of the
accused. She showed them one bra and knicker stating that they belong
to her. Further she showed them her plastic water bottle with "Nimbus"
written thereon. As per evidence of PW-25 PI Mane all these articles were
lying near the spot. One half shirt of Ash colour along with one Grey
colour odhani which was hanging on the tree were also found there. He
collected the sample earth from the spot. He took all these articles in
63
possession under Panchanama, kept them in separate brown envelopes
and affixed the labels of their signatures and signatures of Panchas
thereon. Panchanama(Exh.28) was prepared on the spot. He has
identified these Muddemal Article Nos. Nos.2 to 10. These articles were
identified by the prosecutrix and PW-19 Krishna in their evidence before
the Court. According to PW-25 PI Mane then they returned to the Police
Station and made entries of all these articles in muddemal register and
handed over them to muddemal clerk in sealed condition.
98. This evidence relating to the spot Panchanama is again
getting further corroboration from the evidence of PW-3 Mr. Subhash
Deshmane who on 3.9.2013 at about 10.00 a.m. was proceeding on the
way at E.Moses Road in order to book the gas with Diana Agency. At that
time on the request of Police, he showed his willingness to act as Panch.
According to him, there one girl and boy were also present. They were
introduced to them by PI Mane as prosecutrix and Krishna. Then said boy
and girl started showing the spots of incident. The photographs were
taken of the said spot. He has also deposed about recovery of these
articles like water bottle 'Nimbus' written on it and the quilt from the
spot along with one dark gray colour knicker and black colour brassier,
used condom etc. which according to him were seized and sealed on the
64
spot and kept in separate envelopes with labels of his signatures. The
spot panchanama(Exh.28) was prepared on the spot. He has identified
his signatures thereon along with Muddemal Article No.2 to 10.
99. Further in his evidence he has also stated that photographer
was clicking the photographs of the spots and the articles as shown by
the prosecutrix and the boy. In the enlarged photographs(Exh.26/1 to
26/14) he has identified the prosecutrix and P.W.19-Krishna.
100. Then there is further evidence of P.W.2 Santosh Jadhav,
photographer who was called by PI Mane for taking photographs of the
spots and the places shown by that girl. It is his evidence that along with
PI Mane and two Panchas, he went in the premises of Shakti Mill with
that girl and clicked 14 photographs from different angles of the spots
shown by the girl. Those photographs are produced on record from Exh.
25/1 to 25/14 and their enlarged copies at Exh.26/1 to 26/14. He has also
produced the memory card vide Muddemal Art. No.1 and the bill of
charges of the photographs (Exh.24).
EVIDENCE RELATING TO MEDICAL EXAMINATION OF PROSECUTRIX:
101. As per evidence of P.W.25 PI Mane then he sent the
65
prosecutrix for her medical examination along with PW29 WPSI Neetu
Tayade to Nagpada Police Hospital with forwarding letter(Exh.52).
Prosecutrix was taken to the Medical Officer of Gynecology Department.
However, there it was informed that lady doctor was not available and
prosecutrix refused to get herself examined by male Doctor. Accordingly,
she made endorsement on the said letter(Exh.52) and signed below it and
it was also signed by WPSI Tayade and the prosecutrix. Then they were
directed by Medical Officer to take prosecutrix to J.J. hospital along with
this letter. At J. J. Hospital, she was examined by the lady doctor and after
medical examination doctor handed over her one sealed envelope and
one sealed box which she brought to the Police Station and handed over
the same to PI Mane. As per evidence of P.W.25 PI Mane he has taken the
entry thereof in Muddemal Register and handed over them to Muddemal
Clerk.
102. This part of his evidence is supported by prosecutrix also by
stating that as lady doctor was not available at Nagpada Police Hospital,
she refused to get herself examined there by male doctor. Hence, she was
taken to J.J.Hospital where female doctor examined her.
103. P.W.26-Dr. Ms. Kiran Yadav who was on duty as Maternal and
66
Child Health officer at J.J.Hospital has deposed that as per letter(Exh.83)
issued by the Medical Superintendent J.J. Group of Hospitals Mumbai she
along with Dr. Ashok Anand examined prosecutrix on that day i.e. on
3.9.2013 at about 3.00 p.m., after obtaining the consent and willingness
from the prosecutrix. Prosecutrix has given the history of gang rape by
five unknown persons on 31/7/2013 at about 8.30 p.m. at Shakti Mill
Compound while she was accompanied by her boyfriend Pankaj @
Krishna. Prosecutrix also gave the history of being hit by three persons
and sexually assaulted by them one after another and then they called
two others who also sexually assaulted her. This history is noted in the
certificate (Exh.84) issued by her. As per her evidence, she asked
prosecutrix whether any intoxication was given to her at the time of
incident and she said no. Prosecutrix also stated that she has already
changed the clothes. On examination of the prosecutrix she found that
her hymen was already torn at 2,6 and 9 O'clock position and admitting
two fingers. After collecting various swabs and samples, she issued the
certificate (Exh.84).
104. Considering the evidence of the prosecutrix and P.W.19-
Krishna that they had stayed in the house of their friend P.W.6
Manojkumar Satnami as husband and wife for about one month after the
67
incident, it may be true that medical evidence relating to the examination
of her private part like rupture of hymen and vagina admitting two
fingers may not be much relevant but what is relevant is the evidence
about psychological examination of the prosecutrix conducted by a team
of Doctors.
105. P.W. 24-Dr.Maithili Umate is the Assistant Professor in
Department of Psychiatry at Grant Medical College. The case of the
prosecutrix was referred to her by Superintendent of J.J.Group of
hospitals on 4.9.2013. A team of three Doctors consisting of Dr. V.P.Kale,
Professor and Head Of Department, she herself and Dr. Ashish Kuthe, a
Medical Officer was formed to conduct psychological examination of the
prosecutrix. As per her evidence, they examined the prosecutrix on
4.9.2013 and 6.9.2013 and on examination, they found that prosecutrix
was suffering from Acute Post-traumatic Stress Disorder. Her mental
status examination revealed that her mood was sad and affect was
appropriate. She has ideas of helplessness and worthlessness. Her
concepts and judgments were intact and insight was present. At the time
of interview, she seemed to be sad and was crying during the interview.
She was interviewed mainly in respect of her psychological status and the
incident which occurred with her was also taken in to account. The result
68
of psychological test showed hyper sensitivity to traumatic incident with
depressive features. Accordingly, they have issued the certificate Exh.76.
106. Further corroboration is coming to this evidence from the
statement(Exh.49) of the prosecutrix recorded u/s.164(5) of Cr.P.C. by the
Metropolitan Magistrate giving all the details of the entire incident, as
disclosed by the prosecutrix in her complaint and as deposed in the
Court.
107. Thus, just to sum up the prosecution case and material
evidence thereof as regards the actual incident, it can be stated as
follows:-
Actual incident of sexual
Assault
Evidence of the prosecutrix completely
corroborated with the evidence of P.W.19
Krishna.
Her statement (Exh.49) recorded u/s.
164(5) of Cr.P.C. on 4.10.2013.
Her complaint(Exh.47) and proforma of
FIR.(Exh.79)
Subsequent conduct of the
prosecutrix and P.W.19-
Krishna leaving Mumbai.
Evidence of prosecutrix and P.W.19
Krishna,
PW-10 prosecurix's mother,
P.W.6-Mr.Manojkumar Satnami(Krishna's
friend),
P.W.4 Mr. Dipesh Pumbhalia(Cook, Master
of Krishna),
P.W.9 Vaishali Bons coupled with Bio-Data
69
of prosecutrix (Exh.40)
Attendance Register for the month of July
and August, 2013(Exh.41)
P.W.22 PSI Baravkar Missing Complaint
(Exh.45) entry No.123/13 in Missing
Register
Medical treatment at
Dohatra
Evidence of prosecutrix,
P.W.19-Krishna and P.W.31 PI Nikumbhe
Lodging of complaint at
Bhandup Police Station
Evidence of P.W.10 prosecutrix's mother,
P.W.22-PSI Baravkar,
P.W.23WPSI Deepali Kulkarni,
complaint(Exh.47),
proforma of F.I.R.of Bhandup Police Station
(Exh.47-A)
Registration of offence at
N.M.Joshi Marg Police
Station
Evidence of prosecutrix,
P.W.10-her mother,
P.W.19-Krishna,
P.W.22 PSI Baravkar,
P.W.23 WPSI Deepali Kulkarni,
P.W.29 WPSI Neetu Tayade,
P.W.25 PI Mane and proforma of FIR(Exh.
79).
The spot panchanama and
recovery of articles Nos.2
to 10 (i.e.Odhani, water
bottle, under clothes and
other articles)
Evidence of the prosecutrix,
P.W.19-Krishna,
P.W.3 Mr. Subhash Shamrao Deshmane
Panch witness ,
P.W.2 Mr. Santosh Jadhav- photographer
P.W.25 PI Mane
Medical examination and
psychological examination
of the prosecutrix
Evidence of P.W.26-Dr. Ms. Kiran Yadav
Evidence of P.W.24 Dr. Maithili Shailesh
Umate,
Mental Health Report of prosecutrix Exh.
76
Psychological Assessment Certificate (Exh.
84)
70
CHALLENGES RAISED TO THIS PART OF PROSECUTION CASE BY
DEFENCE.
DELAY IN FIR :
108. The first and foremost challenge raised by all the defence
Counsels is to the delay in lodging of FIR. It is urged by the defence
Counsels that here delay is not of few hours or of few days but it is of
more than a month. The alleged incident has taken place on 31/07/2013
at night whereas the complaint is lodged in the early morning of
03/09/2013. According to them, this delay creates doubt about veracity
of prosecution case as the defence has brought on record the possibility
of present accused being made scapegoat by the police just to show their
efficiency due to pressure of Media and senior officers and, therefore, this
delay is required to be looked into seriously.
109. It is true that the importance of prompt lodging of FIR
cannot be minimized in any way as it gives assurance to the truthfulness
of prosecution case. However, at the same time, it has to be remembered
that every time delay in lodging of FIR does not become fatal to the
prosecution case. Mere delay by itself is not a t all a ground to discard the
prosecution case. The Court has to see whether the delay in lodging of
FIR is explained properly and satisfactorily by the prosecution, as held in
71
umpteen number of authorities by the Apex Court and the High Courts.
One of such authority is that of Amar Singh V. Balwinder Singh & Ors.
(2003)2 Supreme Court Cases 518 relied upon by Spl.P. Shri Ujjwal Nikam
for prosecution. In this authority, it was laid down that,
Mere delay by itself is not enough to reject prosecution case
unless there are clear indications of fabrication. Delay by
itself is not a circumstance to doubt the prosecution case. At
the most, it will call upon the court to subject the evidence to
a closer scrutiny. However, unless there are indications of
fabrication, the court cannot reject the prosecution version
as given in the FIR and later substantiated by the evidence
merely on the ground of delay. These are all matters of
appreciation and much depends on the facts and
circumstances of each case and for this a host of
circumstances like the condition of the informant, the nature
of offence, the circumstances in which the incident has taken
place etc. have to be taken into consideration.
In the words of the Apex Court,
There is no mathematical formula by which a inference can
be drawn either way, merely on account of delay in lodging
the FIR.
110. In Ravinder Kumar & Anr. V State of Punjab (2001) 7 S.C.C.
690 relied upon by Spl.P.P. Shri Ujjwal Nikam also it is held that,
The attack on prosecution cases on the ground of delay in
lodging FIR has almost bogged down as a stereotyped
redundancy in criminal cases. It is a recurring feature in
most of the criminal cases that there would be some delay in
furnishing the first information to the police. It is to be noted
that the law has not fixed any time for lodging the FIR Hence
a delayed FIR is not illegal. Of course, a prompt and
72
immediate lodging of the FIR is the ideal as that would give
the prosecution a twin advantage. First is that it affords
commencement of the investigation without any time lapse.
Second is that it expels the opportunity for any possible
concoction of a false version. Barring these two plus points
for a promptly lodged FIR the demerits of the delayed FIR
cannot operate as fatal to any prosecution case. Even a
promptly lodged FIR is not an unreserved guarantee for the
genuineness of the version incorporated therein. Hence,
when there is a criticism on the ground that FIR in the case is
delayed, the court has to look into the reason, why there was
such a delay.
There can be a variety of genuine causes for FIR lodgment to
get delayed. Hence the stale demand made in the criminal
courts to treat the FIR vitiated merely on the ground of delay
in its lodgment cannot be approved as a legal corollary. In
any case, where there is delay in making the FIR, the Court
has to look into the causes for it and if such causes are not
attributable to any effort to concoct a version, no
consequence shall be attached to the mere delay in lodging
the FIR
111. Especially in the cases of sexual offences, the law is more
than well settled that, it is very common to come across the delay in
lodging of the FIR. As observed by the Apex Court in the landmark
decision of State of Punjab V. Gurmit Singh & Ors. referred above,
In sexual offences delay in lodging of the FIR can be due to
variety of reasons, particularly the reluctance of the
prosecutrix or her family members to go to the police and
complain about the incident which concerns the reputation
of the prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of sexual
offence is generally lodged. Hence, even if there is some
delay in lodging FIR in respect of offence of rape, if it is
properly explained and the explanation is natural in the facts
73
and circumstances of the case, such delay would not matter.
It was further observed in this authority that,
In the normal course of human conduct, an unmarried
minor girl, would not like to give publicity to the traumatic
experience she had undergone and would feel terribly
embarrassed in relation to the incident to narrate it to others
over-powered by a feeling of shame and her natural
inclination would be to avoid talking about it to any one, lest
the family name and honour is brought into controversy.
As per the Apex Court, the girl in a tradition bound non-permissive
society in India, would be extremely reluctant even to admit that any
incident which is likely to reflect upon her chastity had occurred, being
conscious of the danger of being ostracized by the society or being
looked down by the society.
112. Therefore, the point to be stressed is that the delay in lodging
the FIR in the case of sexual offences is not something to be looked into
with suspicion but to be understood and appreciated, keeping in mind
the social reality and the facts and circumstances of that particular case.
That's why the Apex Court in the case of State of Punjab V. Ramdev Singh
AIR 2004 SC 1290 while condoning the delay of around 17 days
commented that,
Delay in lodging the FIR cannot be used as a ritualistic
formula for doubting the prosecution case and discarding the
same. Delay has the effect of putting the court on its guard to
74
search if any explanation has been offered for the delay, and
if offered, whether it is satisfactory or not. If the prosecution
fails to satisfactorily explain the delay and there is possibility
of embellishment in prosecution version on account of such
delay, the same would be fatal to the prosecution. However,
if the delay is explained to the satisfaction of the court, the
same cannot, by itself, be a ground for disbelieving and
discarding the entire prosecution version.
113. Herein the case therefore, one has to see whether the
conduct of prosecutrix of not lodging the complaint immediately after
the incident was unnatural? whether the delay has resulted into
embellishment in prosecution case? and whether the delay is properly
and satisfactorily explained by the prosecution?
114. Referring to the facts of this case, one has to bear in mind
that incident has taken place when the prosecutrix has gone along with
her boyfriend Krishna to Mahalaxmi Temple but landed accidentally in a
deserted and dilapidated place like Shakti Mill premises. She was
subjected there to the most humiliating and embarrassing form of sexual
assault at the hands of five accused persons, that too when her boyfriend,
with whom her marriage was settled, was just nearby, though he could
not have seen what was happening and was also not in a position to stop
it. In the face of this sexual assault, she must have experienced a sudden
feeling of helplessness and worthlessness, being unable to resist and stop
75
this entire incident. This fact is substantiated by medical evidence also.
Moreover after the incident, the accused had not only threatened her but
also her fiancee Krishna of dire consequences, if they dare to go to the
police or disclose of the incident to anyone. Moreover, the manner in
which the accused persons have assaulted her, subjected her to
gruesome sexual acts and further assaulted Krishma must have to some
extent created terror in her mind. In such situation, no one can blame
her, if she and Krishna, after being assaulted must have felt frightened
and threatened. One can imagine their mental status, being totally over-
powered by the event, in a confused and bewildered state of mind, not
knowing what to do and where to go.
115. It is also not that prosecutrix has not disclosed about the
incident to Krishna also. She had faith in him and he has proved to be
worthy of keeping the faith. Moreover, seeing her condition and the
manner in which the entire incident had taken place, Krishna must have
also realized as to what has happened. As stated by him, when she was
brought out by the accused, she was totally frightened, her clothes were
torn, her hair were in disorder. Therefore, it was but natural for him to
know what must have happened and the prosecutrix has also disclosed
him to what has happened, being her close confidante.
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116. It is but natural that immediately after the incident of such
horrendous nature has happened, both of them might not have been in a
position to take the decision of going to the police station and lodging the
complaint. Assuming that there were some police persons available at
Mahalaxmi Railway Station or C.S.T. as suggested to them in cross
examination, the question is whether they were in proper mental frame
to take decision of lodging the complaint with police? The answer is 'No'.
As stated above, in the sexual offences of this nature, where she was
found along with her fiancee, that too at a deserted place, both of them
are bound to think over hundred times before taking the action of lodging
the complaint, apprehending the consequences thereof, the effect which
disclosure of such incident might have on the mental condition of her
mother and on the prospect of their marriage, along with the social
reality in which, as held by the Apex Court itself, the woman has a fear of
being looked down, if any such incident comes to the light.
117. In this respect, the evidence of prosecutrix also goes to prove
that she has apprehension that, if her mother comes to know about the
incident, she may commit suicide and if her mother commits suicide, she
will also do the same. She has deposed about it in the Court and has
stated about it in the FIR also. Needless to say that she is the best person
77
to know the effect of such incident on the mental condition of her
mother. It is brought on record that her mother is widow. Prosecutrix's
elder sister Nisha is already married out of religion with one Bengali
Muslim and her mother has totally snapped relations with her. Her
younger sister is studying in the Boarding School. Prosecutrix and her
mother were alone residing in the house and in such situation, if her
mother comes to know about this incident of sexual assault on
prosecutrix, it was felt by the prosecutrix that her mother may do
something with her life which prosecutrix herself could not bear to think
of.
118. As rightly submitted by Spl.P.P., these are the own feelings of
prosecutrix, her own judgment about the impact of the news on her
mother and she knows it better than us. Therefore, we cannot sit on her
judgment and that too after the entire thing is over, to decide whether her
feelings were correct, whether they were having any reasonable basis.
One thing is however certain that, we cannot at this stage say that her
apprehension of probable and possible reaction of her mother to the
incident cannot be termed as impossible.
119. It is also pertinent to note that when after returning from
78
village Dohatra on 01/09/2013, prosecutrix disclosed about the incident
to her mother, her mother suffered mental shock and became unwell. On
02/09/2013 she took rest, as stated by Krishna also and in the night, they
went to Bhandup Police Station, that too, not to lodge the complaint of
this incident but to cancel the missing complaint, which as told by P.W.
22-P.S.I. Baravkar to her mother, was to be cancelled only when the
missing girl i.e. prosecutrix was produced before him. Therefore, they
had no such intention of lodging the complaint with police since
beginning and even after they returned to Mumbai. Only because during
the course of inquiry of prosecutrix as she was crying, P.S.I. Baravkar
made further inquiry with the assistance of W.P.S.I. Kulkarni and then her
statement came to be recorded which was disclosing about the incident.
120. Therefore the fear psychosis of the incident that has
happened with prosecutrix was to such an extent that one can
understand the prosecutrix thinking of not lodging the complaint
immediately or even not lodging the complaint at all. She wanted to go
away far away from the place and also far away from Mumbai. She did
not want to face her mother or any known person. She wanted to go to a
totally alien place where no one would come to know about the incident
and she can suppress it from everyone, due to the embarrassment and
79
humiliation which she and Krishna had suffered at the hands of the
accused in the entire incident. This conduct of prosecutrix and Krishna
of leaving for the village Dohatra after the incident without disclosing it
to anyone, therefore cannot be called as unnatural. On the contrary, it
would be the most natural reaction of any young girl who is about to
marry with her fiancee and who is subjected in his presence to such
humiliating and horrible incident of sexual assault.
121. One can also imagine the plight of the prosecutrix at the
relevant time as she even could not search for her inner clothes to wear.
She was brought out of the shrubs wearing only torn kurta and payjama.
They had to purchase the T-shirt for covering her. In such situation, how
a young girl who is coming from a lower strata of society like prosecutrix,
hardly studied upto 9
th
standard, neither mature nor major but just
crossed the age of 18 years, would think of immediately lodging of the
complaint. Her boyfriend P.W.19-Krishna is more or less of the same age
and coming from the same strata of society, having no real parents. Thus,
they were not having sufficient support or family backing also to go to
police station and lodge the complaint. Hence the reaction on their part
to run far away from the city cannot be called as unnatural so as to
suspect the delay in lodging the FIR as a ground, for accepting the
80
defence of fabrication.
122. The fact that prosecutrix and P.W.19-Krishna were at village
Dohatra for one month as stated by them, is also proved on record
through the evidences of P.W.4-Dipesh Pumbhalia from whom the
amount for going to Dohatra was borrowed, P.W.6-Manojkumar Satnami
in whose house, prosecutrix and P.W.19-Krishna have stayed and also
through the evidence of the mother of the prosecutrix. Though it is
contended by the defence that no documentary evidence like railway
tickets are produced on record to show that they had gone to village
Dohatra in Chattisgarh on 01/08/2013 and returned on 01/09/2013, the
evidence of these witnesses cannot be disbelieved for want of such
documentary evidence. Their evidence has successfully withstood the
test of cross examination and nothing worthwhile is elicited to disbelieve
them in any way. Moreover, it has to be remembered that as they had no
intention of lodging the complaint, there was no necessity of preserving
the tickets also. It is also pertinent to note that in cross examination,
several such details are brought on record to fortify their evidence, as
discussed above.
123. As a matter of fact, the very suggestion given to the
81
prosecutrix and P.W.19-Krishna was to the effect that both of them ran
away or eloped. For example, in cross examination of P.W.19-Krishna, in
para No.22, it is suggested to him that as prosecutrix's family members
were not ready for marriage, both of them ran away. Similarly in his cross
examination by defence Counsel Shri Gadgil for accused No.2, in para No.
30 it is suggested to him that, 'he had sexual relation with the prosecutrix
and to hide that fact and to have further such relations with her, he took
her to Chattisgarh.' There is further suggestion in para No.35 in cross
examination given by defence Counsel for accused No.3 that, 'as
prosecutrix's mother had not given approval to their marriage, they had
run away from the house.'
124. Even the suggestion given to prosecutrix in her evidence in
para No.47 is to the effect that, 'she had run away with her boyfriend
Krishna.' The suggestion is also given to her mother by learned Counsel
for accused No.2 in para No.14 that, 'on 31/07/2013, prosecutrix had
gone along with Krishna to Chattisgarh after informing her.' A further
suggestion is given to her by learned Counsel for accused No.3 in para
No.16 that, 'as she was not accepting the relation between prosecutrix
and Krishna, both of them have eloped.'
82
125. These suggestions clearly indicate that defence is not
disputing the fact that prosecutrix and Krishna had gone to Chattisgarh
and were there as stated by them. These suggestions, though denied,
when they are pregnant with the fact, then it follows that implied fact is
also admitted by the accused, as held in Tarun Bora V State of Assam,
2002 S.C.C. (Cri) 1568 and State of Maharashtra V Bharat Fakira Dhiwar,
AIR 2002 S.C. 16 relied upon by Spl.P.P. As rightly submitted by Spl.P.P.,
suggestions are given under instructions of client and, hence, have
different dimensions. Suggestions though are not defined in Evidence
Act, they can be stated in common parlance as putting up story by one
party to witness of other party. Especially when the suggestion is of a fact,
it has different colour and contour. Law presumes that implied facts are
also admitted by defence whether suggestions are admitted by witness or
not.
126. The point to be stressed therefore is that, defence is not
disputing the fact that prosecutrix and her boyfriend, P.W.19-Krishna
were not in Mumbai immediately after the incident. It is apart that this
fact is otherwise also proved on record by the prosecution through the
evidence of P.W.6-Manojkumar Satnami. As stated above, the details
brought out in his cross examination go to reflect that he was knowing
83
P.W.19-Krishna since 5 to 6 years and Krishna had visited his house 2-3
times earlier also. Therefore, there was nothing unnatural when in the
need of time, Krishna thought of going to his house. This witness has also
identified Krishna and prosecutrix in photograph at the time of evidence
in the Court which is again a corroborating fact. Hence he cannot be
called at all as got up witness, as contended by the defence when his
evidence leaves no manner of doubt about its veracity.
127. The evidence of P.W.9-Ms.Vaishali Bons is also challenged on
the ground that she is claiming herself to be a Proprietor of NGO by name
'Parivartan Sandesh Foundation' and at the same time, she is admitting
that there is no designation by name 'Proprietor' in the said NGO.
Further she has admitted that in 'Parivartan Sandesh Foundation', there
are Trustees. She has also not produced any document to show that she
is working in this NGO since last three years. It is also submitted that in
the alleged Bio-Data of prosecutrix, there is no stamp or name of
'Parivartan Sandesh Foundation' and, hence, it is urged that the said Bio-
Data may be prepared at the instance of the police. On the Bio-Data, it is
also nowhere stated that prosecutrix was appointed for the post of
'Telemarketing'. Further it is alleged that in the alleged Muster, there is
no signature to prove the attendance of the prosecutrix. What is written
84
is 'T' means 'present for training purpose' and 'A' means absent.
According to learned Counsel for accused No.1, these letters 'T' or 'A' can
be written by anyone and not necessarily by the employee. He has
further submitted that this witness is also a got up one.
128. In the course of arguments, it is also pointed out that on the
Register/Muster, the stamp of 'Keerat Incorporation' is appearing. Even
on the Bio-Data (Exh.40) also, the same stamp is appearing. There is also
some overwriting on the timing of the date 31/07/2013. Moreover,
according to learned Counsel for accused No.2, the minimum
qualification for the post of 'Telemarketing', as admitted by this witness
was 10
th
pass whereas the prosecutrix in this case is only 9
th
pass and,
therefore, she was not qualified to appear for the said post or to undergo
the training. Lastly it is submitted that in the Missing Register, it is
stated by the prosecutrix's mother that prosecutrix was working in
'Dreams Mall' at Bhandup and the name of her employer was Jagdish
Seth. Thus the evidence brought on record through P.W.9-Vaishali Bons
that prosecutrix was working with 'Parivartan Sandesh Foundation' is,
according to defence, a major contradiction and hence got up one.
129. In my considered opinion, even if everything as contended
85
by defence Counsles is admitted, the evidence of P.W.9-Vaishali Bons is
only on the limited point that of prosecutrix has attended her office upto
31/07/2013 and thereafter, she has not turned up, thereby implying that
after the incident, prosecutrix was not in Mumbai or not at the place of
her job. This fact is proved by the Attendance Register and also by the
evidence of this witness. If the Attendance Register was having the stamp
of 'Keerat Incorporation' then it was necessary for the defence Counsels
to get explanation from the witness about the same, bringing it to her
notice. Without giving any such opportunity for explanation and thereby
not following the principles of natural justice, the witness cannot be
condemned as got up or speaking false. It is also not a case that
Attendance Register is only in respect of the prosecutrix and not of other
employees. It clearly bears the names of other employees and as regards
the prosecutrix, she being on training, like some of the other employees
were on training, the letter 'T' and 'A' is appearing according to their
presence and absence. Moreover, as prosecutrix was on training and has
hardly attended 7 days, there is no question of any payment being made
to her or any payslip being issued to her.
130. As regards the contention that in the Missing Register, it is
stated by the mother of the prosecutrix that she was working in 'Dreams
86
Mall', this stray fact cannot be sufficient to discard the other evidence on
record because the evidence of P.W.9-Vaishali Bons, of prosecutrix and
her mother has totally remained un-shattered on record that at the
relevant time, prosecutrix was working as 'Trainee' in 'Parivartan
Sandesh Foundation' and not in the 'Dreams Mall'. No such suggestion
was put up either to the prosecutrix or to her mother that prosecutrix was
not working in 'Parivartan Sandesh Foundation'. No such suggestion is
also put up to her mother or P.W.9-Vaishali Bons that on 02/08/2013,
prosecutrix's mother has not phoned her or has not come to make
inquiry about the prosecutrix. It is also brought out in cross examination
of P.W.9-Vaishali Bons that after prosecutrix was not found, police had
come to her office to make inquiry. Further it is also brought in her cross
examination that prosecutrix's mother had come to meet her personally.
It is also brought on record that she has produced the Bio-Data of
prosecutrix (Exh.40) before the police during the course of investigation
itself along with the extract of the Attendance Register of July and August
2013. It does not appear probable that this entire evidence would be
concocted without there being any reason to do so. The only object of
prosecution to examine this witness was to prove that prosecutrix was
not in Mumbai after the incident. To prove this fact, there is also other
evidence on record like Missing Complaint (Exh.45), evidence of
87
prosecutrix herself, of her mother, of Krishna(P.W.19) and Manojkumar
Satnami (P.W.6). So to accept the contention of defence that P.W.9-
Vaishali Bons is got up is to rebel against the common prudence.
131. As regards the Missing Complaint, it is submitted that no
photograph of the missing person i.e. of prosecutrix was affixed which is
the normal practice, otherwise how the missing person can be found.
However in this respect, it is to be stated that the Missing Register (Exh.
31) clearly bears the photograph of the prosecutrix and that appears to be
the reason why on the Missing Complaint (Exh.45), separate photograph
is not affixed. As regards the contention that in the Missing Register (Exh.
31), it is not mentioned that prosecutrix was wearing the bracelet and the
evidence to that effect is brought, only when some beads were found at
the scene of offence, again it has to be stated that in the Missing
Complaint (Exh.45), there is mention about prosecutrix wearing bracelet
when she has left the house on that day. Missing Register is a summary of
what is stated in the complaint and therefore, the details may not appear
therein. Moreover, the explanation as to why these details stated in the
Missing Complaint are not found reflected in Missing Register, should
have been sought from P.W.22-P.S.I.Baravkar who has made entry in the
Missing Register (Exh.31). But no such clarification is sought when the
88
evidence of P.W.22- P.S.I. Baravkar was recorded and, therefore, now he
cannot be disbelieved or Missing Complaint cannot be called as a
fabricated document.
132. As on the Missing Register (Exh.31), the prosecutrix has
signed with her surname as 'Bhavane' though actually her surname is
'Bhagwane', an attempt is made by defence to contend that some other
girl of the same name with the surname 'Bhavane' might have been
missing. It is submitted that this cannot be said to be the Missing
Complaint of prosecutrix. According to defence Counsels, the entire
story of the prosecutrix missing and then on her return, cancelling of the
Missing Complaint is fabricated. However, in the first place, it is difficult
to accept this contention as it is against the established evidence on
record. As regards the prosectrix's signing her surname as 'Bhavane'
instead of 'Bhagwane', it was essential for the defence to give opportunity
to the prosecutrix to explain this discrepancy. However, no such
opportunity is given to her.
133. Secondly, the mental condition under which she has come to
police station for cancelling the Missing Complaint at 10.30 p.m. in the
night with her mother who was equally under the mental trauma, is
89
required to be taken into consideration. Prosecutrix was also mentally
disturbed due to the entire incident and due to her mother suffering
mental shock. So while making signature on this Missing Register,
especially after narrating about the incident of gang rape, during which
she must have relived the entire trauma, there is every possibility of some
spelling error in the surname of her signature. She has even committed
error in spelling while writing the name of her father. Hence, that cannot
be a ground to discard the entire extract of this Missing Register (Exh.31)
when it is proved to be a contemporaneous document giving all details.
134. It is pertinent to note that Missing Register also gives the
name of Krishna with whom the prosecutrix's mother has said that
prosecutrix was having love affair. It also gives the details of her friends,
her description which is tallying with the prosecutrix. Moreover, there
was no reason for prosecutrix's mother to lodge such Missing Complaint,
if she was really not missing.
135. As regards the contention that there is no evidence produced
on record to show that police have made any serious search of the
prosecutrix and if police had made such search, the second alleged
incident would not have occurred at all, the evidence of P.W.22-P.S.I.
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Baravkar who has registered the Missing Complaint shows that in respect
of this Missing Complaint, he has made inquiry with the friends of
prosecutrix and at the place where she was working. This evidence is
supported by the evidence of P.W.9-Vaishali Bons also who has
categorically deposed that police had come to make inquiry with her
about the prosecutrix and this evidence, as stated above, is brought out in
her cross examination. Therefore, it is not that police had not made
inquiry in Missing Complaint.
136. Moreover, the evidence of prosecutrix's mother shows that
on 01/08/2013 she has lodged the Missing Complaint and immediately
on 02/08/2013, in the early morning, she received the phone call from
prosecutrix. Thereafter also, she received 2-3 phone calls from
prosecutrix and prosecutrix has told her that she was with Krishna. That
appears to be a reason why she has not kept follow-up of her Missing
Complaint. Moreover, the endorsement made on the Missing Register
also reveals that on 10/08/2013, prosecutrix's mother had come to the
police station to meet P.W.22-P.S.I. Baravkar and informed him that she
has received the phone call from prosecutrix and she is safe therefore, she
wants to cancel the Missing Complaint. Prosecutrix's mother has also
deposed about the said fact. Hence, there was no necessity for
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P.S.I.Baravkar to carry out any further investigation on this Missing
Complaint. Police just wanted to be sure, before cancelling the
complaint, as per their procedure, to see the missing girl and, therefore,
the said complaint was kept alive till the prosecutrix appeared before
them on 02/09/2013 along with her mother and Krishna.
137. Moreover, if this entire story was concocted, there would not
have been such discrepancy like prosecutrix's mother stating that she
was working in 'Dreams Mall' with the employer by name 'Jagdish Singh'.
If the Missing Complaint and the entry in the Missing Register were the
fabricated documents, prepared after the prosecutrix was found and
complaint was registered, it goes beyond doubt that police would have
taken the necessary precaution of writing the correct place of her service
and correct name of her employer. The police would have also made it
sure that prosecutrix signs properly with correct surname. They would
have also made sure that the Muster maintained by P.W.9-Vaishali Bons
was signed by the prosecutrix and not merely written 'T' and 'A'. If the
police had to concoct the entire false record as such, they would have
made their case perfect by removing all these infirmities therein. The
very presence of all these infirmities therefore gives the inbuilt guarantee
of its truthfulness.
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138. About contention that there is no documentary evidence
about P.W.4-Dipesh Pumbhalia advancing the amount of Rs.1,500/- to
P.W.19-Krishna on the day of incident, it has to be stated that there was
no time or occasion to get such document prepared. It is proved on
record that P.W.19-Krishna was working with him for 7 months and when
Krishna has told him that he requires money to go to his native place as
his father was not feeling well, there was nothing unnatural if P.W.4-
Dipesh Pumbhalia advanced the amount of Rs.1,500/- to him in such a
emergency, without executing any document.
139. As regards Krishna's evidence that he has no real parents and
hence the contention that he has told falsely to P.W.4-Dipesh that he
requires money to go to native place as his father was ill, P.W.19-Kirshna
himself has provided the answer that how he can give the reason to his
employer that his fiancee was raped by five persons and he needs money
to take her to village. This explanation is totally acceptable by any
standard of human nature. It was but natural on the part of Krishna not
to disclose the real cause and unless he has put up the case of urgency of
illness of his father, he could not have justified asking his employer to
give money at odd hours in the night.
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140. The evidence of these witnesses thus completely support the
evidence of prosecutrix and P.W.19-Krishna about their absence from
Mumbai after the incident and which was the reason for delayed FIR. As
a matter of fact, it has to be reiterated that neither the prosecutrix, nor
her mother or Krishna were keen to lodge the FIR about this incident for
obvious reasons, as discussed above. They had gone to the police station
to cancel the Missing Complaint and as at that time, prosecutrix was
weeping, this incident of gang rape came to the light due to the
interrogation by P.W.22-P.S.I. Baravkar and P.W.23-P.S.I.Kulkarni.
141. It is perfectly possible that a woman in the situation in which
the prosecutrix was, being in love with Krishna and her proposal for
marriage with Krishna has just got approval from her mother, will not be
inclined to stake her reputation by admitting the occurrence of such
incident. No self respecting woman will make such case if it is not true.
It was not absolutely necessary for her even to do so.
142. Moreover, no opportunity was given either to prosecutrix or
to her mother or even to Krishna as to why they did not lodge the
complaint immediately. If such opportunity was given and they had not
offered sufficient reason, then one could have said that this delay was
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fatal but without extending such opportunity condemning them for the
delay in lodging the FIR cannot be proper. Prosecutrix was even not
asked as to why she did not disclose P.W.6-Manojkumar Satnami or his
family members or to the doctor in Dohatra that she was subjected to
such gang rape.
143. Therefore, whatever alleged delay is caused in the present
case in filing of complaint, it has to be held as explained by the
prosecution to the satisfaction of the judicial conscious, leaving no
manner of doubt in the mind of the Court about truthfulness of the
contents of FIR.
CHALLENGE TO MEDICAL EVIDENCE :
144. The next challenge of learned Counsels for accused is
relating to absence of corroborating medical evidence. It is submitted
that, if as many as five persons had committed gang rape on the
prosecutrix one after another, and that too of the brutal form as alleged
and if they have also subjected her to unnatural sex like inserting penis in
her anus, then there should have been some injuries on her private part
and other parts of the body, especially when the alleged incident has
taken place on rough surface in the deserted premises of Shakti Mill
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which was surrounded by the shrubs, stones etc. It is urged that even if it
is possible that there may not be evidence of fresh injuries as her medical
examination is conducted on 03/09/2013 that is practically after a period
of one month, there should have been evidence of some old healed
injuries.
145. It is argued by learned Counsel for defence that the evidence
of P.W.26-Dr.Kiran Yadav, who has examined the prosecutrix on
03/09/2013 reveals that there were no injuries on her private parts. In her
Medical Certificate also, she has not mentioned the injuries on any other
part of the body. The only material brought out through her evidence
and the Medical Certificate (Exh.84) is that the hymen was torn at 2, 6
and 9 O'clock position and was admitting two fingers. Relating to it, she
has also admitted in cross examination that hymen can be torn by any
penetration, whether sexual intercourse is with or without consent. In
this case according to defence Counsels, as admittedly, prosecutrix and
P.W.19-Krishna were staying as husband and wife, the tear of the hymen
and admitting of two fingers in vagina can be easily explained. Thus, the
sum and substance of the argument is that the medical evidence in the
case does not corroborate the version of prosecutrix and in such
situation, her sole testimony should not be relied upon.
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146. However, on this aspect, it has to be reiterated that as the
medical examination has taken place after about one month, during this
period whatever injuries, like scratches or abrasions prosecutrix might
have sustained in the incident, must have healed, without leaving any
mark. Only when the injury is skin deep, the marks of the injury can be
found, even after it is healed. Moreover, herein the case, prosecutrix
herself has also not stated that during the incident, she has sustained
such skin-deep injuries on her body. Her evidence clearly goes to show
that she was dragged by holding the hands. The suggestion put to her
that she was dragged when she fell down on the ground is denied by her.
In the cross examination it is also brought on record that when accused
forced penis in her mouth, she was on her knees and about another
unnatural sex of putting penis in her anus took place in standing
position, as stated by her. P.W.26-Dr.Kiran Yadav has admitted in her
cross examination that it is possible to insert penis by person in the
vagina as well as in the anus when the woman is in standing position at
one time. That is the very case of prosecutrix that accused No.3-
Mohd.Salim and accused No.1-Mohd.Ashfaq have committed this
unnatural sex with her in standing position. Now whatever injuries
might have been caused to her anus or vagina must have been healed
during this period of more than a month. Those injuries cannot be
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visible except the tear of the hymen and this tear was at 2, 6 and 9 O'clock
position. Therefore absence of injuries on the body of prosecutrix can be
easily explained in the instant case.
147. Secondly, the evidence of prosecutrix and P.W.19-Krishna
clearly go to prove that prosecutrix had taken some medical treatment
immediately after reaching village Dohatra from Dr.Nigam at Dohatra.
This fact, as stated above, is already proved by the prosecution. P.W.31-
P.I.Nikumbe has also supported the said fact. He has talked with the said
doctor on mobile and confirmed it. So it is not that prosecutrix has not
sustained any injuries or she was healthy or happy even after the entire
incident. Only because of lapse of time, prosecution was unable to get
medical evidence.
148. Even otherwise also, absence of medical evidence does not
affect the prosecution case at all because the law is fairly well settled in
various authorities like Wahid Khan V State of M.P. (2010) 2 S.C.C. 9 relied
upon in the case of Ganga Singh V State of Madhya Pradesh (2013) 7
S.C.C. 278, cited by Spl.P.P. In this authority, it was held that,
Even though there was no medical evidence to corroborate
the testimony of the prosecutrix, such corroboration is not
necessary where the evidence of the prosecutrix was
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otherwise consistent and stood corroborated by other
circumstances and the FIR.
149. Just to cite few more cases on this point, in Ranjit Hazarika
Vs. State of Assam 1998(8) S.C.C. 635 even though doctor has opined that
no rape was committed as there were no marks of injury on the private
parts of prosecutrix and hymen was not ruptured, while upholding the
conviction of the accused, it was observed by the Apex Court that,
It was not necessary that evidence of victim must be
corroborated with the medical evidence. Once the Court
finds that evidence of victim is trustworthy and believable,
irrespective of the medical evidence, conviction can be
based.
150. In Dastgir Sab V State of Karnataka (2004) 3 S.C.C. 106 also
Apex Court held that,
Injuries on the body of victim are not a sine qua non to
prove the charge of rape.
It was further held that,
The position of law is well settled that absence of injuries on
the person of the prosecutrix would not by itself be sufficient
to discard the prosecution case. They also cannot necessarily
be the evidence of falsity of allegation.
151. Medical evidence therefore is not sine qua non for proof of
prosecution case relating to sexual offence. The sine qua non is the
testimony of the prosecutrix. The litmus test is her credibility, her
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veracity, her truthfulness and how far she has withstood the test of cross
examination. If she has, then her sole testimony, is sufficient, absence of
medical evidence notwithstanding to prove the occurrence of incident.
Here, there is sufficient cause also for absence of such medical evidence.
152. Learned Counsels for accused Nos.1 and 4 have relied upon
Navnath Namdeo Maske and Anr. V State of Maharashtra, 2004 CRI.L.J.
4756 to submit that though in this reported authority, the prosecutrix has
stated that she was subjected to forcible sexual intercourse by three
accused, as the medical report was silent about the injury of scratch, nail
abrasions either on her body or on the body of any of the accused
persons, it was held that, her sole testimony cannot be sufficient for
conviction. It was further observed that when evidence of victim does
not inspire confidence, story of absence of reason for the victim to falsely
implicate the accused cannot be raised.
153. However, the facts of this authority and the facts of the
present case are totally different. In this authority, the prosecutrix was
medically examined immediately whereas in the present case, the
prosecutrix is examined after more than a month. Secondly, in the
reported authority, the prosecutrix has stated that she has resisted or was
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in a position to resist. As against it, in the present case, in face of five
accused persons, prosecutrix was not in a position even to resist them
forcibly so as to cause any nail marks on their body. Further, even if she
had caused such injuries, after more than one month, there cannot be
any evidence of the same. Lastly, in the reported authority, in the FIR,
victim has taken the name of only one accused whereas in subsequent
supplementary statement, she has added the names of two more
accused. Therefore, considering the total diversion and a new story being
made out, it was held that her sole testimony is not sufficient to inspire
confidence. As against it, in the present case, no such diversion with the
case put up in FIR or complaint is pointed out. On the contrary, the
entire evidence on record is thoroughly consistent and absence of
injuries on the prosecutrix's body is also satisfactorily explained as the
medical examination of the prosecutrix has taken place after more than
one month after the date of incident.
154. Leaned Counsels for accused have also relied upon Kashiram
and Anr. V State of Chhattisgarh, 2010(2) Crimes 153. The facts of this
authority are also totally different. In this authority, the prosecutrix has
stated that as a result of dragging, she has sustained injuries at 10-15
places. However, doctor found only one injury on her left wrist. There
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were also several contradictions and discrepancies in the evidence of
prosecutrix as well as that of her mother and father and in the light
thereof it was held that, prosecution has failed to prove its case. As
against it, in the present case, it is not deposed by prosecutrix that she
has sustained injuries as a result of dragging. On the contrary, her
evidence is clear that she was dragged in a standing position and not
falling on the ground. Moreover, it has to be reiterated that her medical
examination has taken place after more than a month. Therefore, even if
there were such injuries, they will not come on record.
155. Moreover, this is not a case where there is absolutely no
medical evidence on record. We have expert's evidence of P.W.24-
Dr.Maithili Shailesh Umate about the mental condition of the
prosecutrix. She along with the team of Expert Doctors has conducted
the psychological examination of the prosecutrix on 04/09/2013 and
06/09/2013 and has found that she was suffering from Acute Post-
traumatic Stress Disorder. In her cross examination she has denied the
suggestion that due to break-up in love affair, there can be acute post-
traumatic stress disorder. A further suggestion put to her is that in love
affair, if boy refuses to get marry to the girl, such acute post-traumatic
stress disorder can be caused and she has denied that suggestion also.
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Moreover, the evidence on record shows that Krishna has neither refused
to marry with the prosecutrix even after this incident nor there was any
break-up in love affair. Even before the Court, P.W.19-Krishna has stood
by his proposal and assurance of marriage. Therefore, the only
explanation/cause for her mental status of suffering from acute post-
traumatic disorder and being sad and weeping as stated by the doctor in
the interview and during course of recording of her evidence in the court
can be that of being subjected to sexual assault at the hand of five
unknown persons on the day of incident. Therefore, even if there is no
medical evidence of physical injury, there is evidence of mental injury
caused to her due to the incident of this gruesome nature. Hence, it also
cannot be said that there is total absence of corroborating evidence on
this score.
CHALLENGE TO SPOT PANCHANAMA :
156. It is submitted that the alleged recovery of the shirt of
accused No.3-Mohd.Salim from the spot is completely concocted.
Neither that shirt is torn in the incident as stated by prosecutrix nor it is
fitting to the accused No.3-Mohd.Salim when he was asked to wear it in
the Court. It is urged that though it was rainy season, none of the article
including the quilt is wet or spoiled. Water bottle is found with lid and
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also containing some water. How it is possible when accused assaulted
her while she was drinking water. It is argued, how prosecutrix can also
identify the footwear found at the site to be that of one of the accused.
Moreover, condom produced in the case is unused packet.
157. In my considered opinion, all these and other similar
contentions have no effect on substratum of prosecution case. Neither
shirt nor quilt or footwear are used as incriminating evidence by
prosecution. Even if their recovery is excluded from consideration, it
does not affect the veracity of either the evidence of prosecutrix or that of
the core of prosecution case.
158. An attempt is also made to contend that P.W.1-Sandeep
Kanvinde has not produced the rough sketch (Exh.20) before the police.
The fair map (Exh.21) produced in the case is not tallying with the map
produced in another case though it is also drawn by him. As regards
these submissions, it has to be stated that his evidence and the map of
spot of incident is only for the purpose of enabling the Court to better
understand the scenario at the spot. It is, as such, not an incriminating
piece of evidence that even a small lacuna therein should suffice to
disbelieve otherwise well established prosecution case through the
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evidence of victim of sexual assault and an eye witness.
159. As regards submission that prosecution has not been able to
get any witness who has seen either the prosecutrix and P.W.19-Krishna
or for that sake even any of the accused also, either going inside or
coming out of the Shakti Mill premises. It has to be stated that those
premises being deserted and dilapidated, there is least possibility of
anyone seeing them entering or coming out of the premises at those
hours. Secondly, even if such witness was available and his evidence was
led, on the ground that he is a chance witness, his evidence would have
been challenged as got up and prosecution case would have been
challenged as concocted.
160. As regards non examination of Krishna's two friends whom
they met at the time of entering into premises, their evidence also would
have been challenged as interested and secondly, it is but natural for
Krishna not to bring them as then they would have also come to know
about this incident, in which his fiancee is involved. Therefore, all these
contentions to challenge the prosecution case are devoid of merits.
161. As observed by Apex Court in the path breaking decision of
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State of Punjab V Gurmit Singh referred above,
In cases of sexual assault and rape, the Courts shoulder a
great responsibility while trying an accused. They must deal
with such cases with utmost sensitivity. The Court should
examine broader probabilities of case and not swayed by
such minor inconsequential details. The Court should not
search for contradictions and variations microscopically so
as to disbelieve version of prosecutrix.
Herein the case, the careful analysis of the evidence of prosecutrix has
created an impression in judicial mind that she is a reliable and truthful
witness. Her testimony suffers from no infirmity or blemish whatsoever.
Hence this Court has no hesitation to rely upon her testimony alone
without looking for any corroboration. Moreover, in this case there is
ample corroboration available lending further credence to her testimony.
Therefore, whatever infirmities in her evidence or in prosecution case are
pointed out by defence Counsels, make no dent to the veracity of the
prosecution case.
CHALLENGE TO ALLEGED IMPROVEMENTS AND SUGGESTIONS BY
SPL.P.P.:
162. Much capital is made of some alleged improvements made
by prosecutrix in her evidence as regards the actual incident of sexual
assault. It is submitted that prosecutrix in her complaint (Exh.47) which
was recorded after one month has not stated some of the details of the
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incident like accused forcing penis in her mouth or accused beating her.
It is submitted that this part of her evidence is in the nature of
improvement and, therefore, has to be discarded. It also shatters her
veracity.
163. It may be true that these details are not appearing in her
complaint or in further statement recorded at N.M.Joshi Marg Police
Station but her complaint and statement are clear to the effect that she
was subjected to both, natural and unnatural sex by these accused.
Moreover, considering the fact that the complaint is lodged after more
than one month and that too when she has not gone to police station
with an intention of lodging the complaint and when during this period,
she must have made every attempt to forget these details, there is every
possibility of these details not finding mention in the complaint or in the
statement recorded by N.M.Joshi Marg Police Station which was done on
the very morning of 03/09/2013. Moreover, she has also stated that as the
male officer was there at the time of recording her statement at Bhandup
Police Station therefore, she felt embarrassed to disclose all these facts
which, she has disclosed in subsequent statement recorded in N.M.Joshi
Marg Police Station. Hence that hardly can be a ground to disbelieve her.
The entire incident has occurred all of a sudden and in such a manner
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and it's impact must have been so severe that these details might have
slipped from her narration or she even might have avoided to give these
details before the police.
164. As regards her evidence that, she told the accused that she
was having lot of pain and they should leave her, in her complaint and
supplementary statement also, she has stated the said fact. Therefore, it
cannot be accepted that it is an improvement. In respect of her evidence
that, Krishna gave her assurance of marriage and both of them decided to
go to the village of Krishna's friend, though this fact is not stated at the
time of lodging the complaint, it is stated in further statement recorded
by the police immediately at N.M.Joshi Marg Police Station.
165. Needless to say that the FIR is not expected to be an
encyclopedia so as to contain all the minutest details of the incident. As
the word 'FIR' suggests, its object is to set the criminal law in motion. It
is not to substitute the evidence in the Court which is the substantive
evidence. FIR is only a corroborative piece of evidence and, therefore,
much significance cannot be given to some alleged omissions in the FIR
which according to the defence Counsels are improvements made by the
prosecutrix.
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166. Apex Court has also observed in Bijoy Singh and Anr. V State
of Bihar, (2002) 9 S.C.C. 147 that,
It has been held time and again that the FIR is not a
substantive piece of evidence and can only be used to
corroborate the statement of the maker under Section 161 of
the Evidence Act or to contradict him under Section 145 of
that Act........ It is not the requirement of law that the
minutest details be recorded in the FIR lodged immediately
after the occurrence. The fact of the state of mental agony of
the person making the FIR who generally is the victim
himself, if not dead, or the relations or associates of the
deceased victim, apparently under the shock of the
occurrence reported has always to be kept in mind.
167. An attempt is also made to contend that the Spl.P.P. has by
asking various questions to prosecutrix and other witnesses, tried to elicit
the explanations and thereby led the evidence of the facts which are not
stated in the complaint or in the statements recorded by police.
Examples are cited of Spl.P.P. seeking clarification from the prosecutrix by
asking her question as to what was the reason that some of the things
which she had deposed in the court have not been stated in her
complaint. Moreover, according to defence Counsels, it is the Public
Prosecutor who has asked her questions like which role was played by
which of the accused and also how she could see these five accused at the
time of incident when there was some darkness. He has further asked
the question whether there was any light at the spot. Even he has also
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asked the prosecutrix the question which clothes she were wearing at the
time of incident and whether she can describe the water bottle which she
was having at the time of incident etc. The Special Public Prosecutor has
also asked the question like for how much distance the accused dragged
her from the place where Krishna was sitting.
168. It is urged by defence Counsels that all these questions were
asked to the prosecutrix, only with an intention to give opportunity to her
to bring on record more details of the incident which are not appearing in
the complaint or in her statement recorded by police and thereby to fill
up the lacuna by obtaining her explanation on certain aspects to fortify
the prosecution case. According to learned Counsels for accused, the
answers given by the prosecutrix and other witnesses to the questions
which are asked by Spl.P.P. are therefore required to be excluded from
consideration, as they are improvements in an attempt to fill up the
lacunae and cover up the infirmity in the prosecution case.
169. However, as rightly submitted by Spl.P.P., it is the duty of
Public Prosecutor to elicit these facts. As held in the case of
Chandrashekhar Sureshchandra Bhatta Vs. State of Maharashtra, 2001
S.C.C. (Cri) 1504,
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It is prerogative of the Public Prosecutor to elicit such points
from a witness as he deems necessary for the case. No Public
Prosecutor can be nailed to the statement recorded under
Section 161 of Cr.P.C..
There is always some difference between the statement recorded by
police and the evidence recorded in Court. The Public Prosecutor is
hence not bound or expected to stick up to the police statement. But, it is
his job to get proper explanation from the witness to bring true facts
before the Court to assist the Court in arriving at the just decision. Such
clarifications, elucidations or explanations obtained by the Public
Prosecutor by asking questions to the witness, while discharging his duty
towards the Court, as officer of the Court, can not affect credibility of the
witness. In the said process of probing the witness to ascertain the truth,
if some questions are asked to the witness by Public Prosecutor, witness
is bound to depose certain more details of the incident which were not
elicited from him when he was interrogated by the police. At such time,
he may also recall or remember certain things in respect of which he was
interrogated by the police.
170. In Narayan Chetanaram Chaudhary and Anr. V State of
Maharashtra, 2000 S.C.C. (Cri) 1546 relied upon by Spl.P.P. also, it is
observed that,
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If the so called improvements are in fact the details of
narration extracted by the Public Prosecutor and the defence
Counsels in the course of examination in chief and cross
examination of the witness, then they cannot be considered
as dishonest improvements made by the witness in his or her
testimony. It is always necessary for the Court while
assessing the alleged omissions or improvements to see
whether they are dishonest improvements capable of
dislodging the prosecution case, creating doubt about his
veracity and whether they are on vital point to brand such
witness as a got up witness. If the omission is totally
irreconciling with the prosecution story, then only omission
amounts to contradiction.
171. Whatever omissions or contradictions which are pointed out
in the evidence of either the prosecutrix or other witness in the present
case have occurred because of Spl.P.P. seeking some elaboration from the
witness and not because the witness has improved the story. As held in
the above said authority of Chandrashekhar Sureshchandra Bhatta V
State of Maharashtra,
Marginal variations on certain aspects as between the
statement of the witness recorded by the police under
Section 161 Cr.P.C. and his testimony in the Court can not be
dubbed as improvements made with any sinister motive.
They are elaborations elicited by the Public Prosecutor
during the examination-in-chief.
172. Learned Spl.P.P. has also relied upon the authority of Esher
Sing V State of A.P., (2004) 11 S.C.C. 585 to submit that, though it is true
that some statements were made for the first time in court and not
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during investigation, it has to be seen as to what extent they diluted the
testimony of prosecutrix or other witnesses. A mere elaboration cannot
be termed as discrepancy. When the basic features are stated, unless the
elaboration is of such nature that it creates a different contour or colour
of the evidence, the same cannot be said to have totally changed the
complexion of case. If whatever is stated is only by way of clarification on
question being asked by Public Prosecutor, then as held in authority of
Jai Karan and Ors. V State of U.P., 2005 S.C.C. (Cri) 812, it cannot be
termed as an improvement.
173. The learned Counsels for accused have then pointed in the
evidence of prosecutrix and P.W.19-Krishna following discrepancies and
inconsistencies namely,
(1) prosecutrix in her evidence has stated that the hands of
Krishna were tied by odhani whereas Krishna stated that the hands
were tied by handkerchief. It is submitted that this is a major
inconsistency. Moreover, handkerchief is not found on the spot.
(2) Prosecutrix has stated that after she narrated the incident to
her mother, her mother became unconscious whereas her mother
herself has not stated anything to that effect.
3) Prosecutrix has stated that she went for test identification
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parade along with her mother, however, her mother has not stated
so.
4) Prosecutrix has stated that family of Krishna consists of parents,
sisters and brothers whereas Krishna has stated that he has no real
parents.
5) As per evidence of Krishna and prosecutrix, they were having
love affair since 5 to 6 years whereas her mother has stated that she
was knowing Krishna since last 4 to 5 months only.
6) In the Missing Register (Exh.31) there is no mention of bracelet
whereas in the Missing Complaint (Exh.45) such mention is there.
Again in the FIR it is not mentioned.
7) P.W.23- W.P.S.I. Mrs.Deepali Kulkarni attached to Bhandup
Police Station has stated that prosecutrix identified the spot of
incident when it was shown to her on Google. However,
prosecutrix herself has not stated anything about it.
8) Prosecutrix, and P.W.19-Krishna have stated that Krishna had
sustained injuries on face and other parts of the body and they
were bleeding. However, none of the witness like, P.W.4-Dipesh
Pumbhalia, who has seen P.W.19-Krishna immediately after the
incident and P.W.6-Manojkumar Satnami, who has seen him after
one day of the incident, have stated anything about it.
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According to learned Counsels for accused, these omissions,
contradictions, discrepancies and inconsistencies in the evidence of
prosecution witnesses create doubt about the veracity of their evidence.
174. At this stage, it would be useful to refer to the observations
made by Apex Court in Rammi @ Rameshwar V State of M.P., AIR 1999
S.C. 3544 that,
Courts should bear in mind that it is only when
discrepancies in the evidence of witness are so incompatible
with the credibility of his version, Court is justified to
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in narration of an incident
either as between evidence of two witnesses or as between
two statements of the same witness, is an unrealistic
approach for judicial scrutiny.
Moreover, all inconsistent statements are not sufficient to
impeach the credibility of the witness. A former statement,
though seemingly inconsistent with the evidence, need not
necessarily be sufficient to amount to contradiction. Only
inconsistent statements which are liable to be 'contradicted'
can affect the credit of the witness.
175. One can also place reliance on State of U.P. V M.K.Anthony,
AIR 1985 SC 48 wherein the Supreme Court held that,
While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness, when read as a
whole, appears to have a ring of truth. The infirmities,
deficiencies and drawbacks that are pointed out in evidence
may be kept in background but if they are not against the
general tenor of the evidence given by the witness, the
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evidence cannot be rejected.
176. Herein the case, whatever infirmities or drawbacks that are
pointed out in the evidence of the prosecutrix or other witnesses are not
against the general tenor of the evidence given by them. The evidence of
each and every witness examined by the prosecution in this case has a
ring of truthfulness, colour of consistency and a sense of
straightforwardness. The details like whether the hands were tied with
odhani or handkerchief, whether mother had accompanied the
prosecutrix for test identification parade upto jail or whether mother of
the prosecutrix became unconscious or started feeling unwell are
irrelevant details which are not in any way sufficient to corrode the
credibility of the witnesses. They cannot be labeled therefore as
omissions and contradictions.
177. As held in Narayan Chetanaram Chaudhary and Anr. V State
of Maharashtra 2000 S.C.C.(Cri)1546 relied upon by Spl.P.P., minor
contradictions are bound to appear even in the statements of truthful
witnesses as memory sometimes plays false and sense of observation
differs from person to person. Hence The omissions in the earlier
statement, if found to be of trivial details, as in the present case, the same
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would not cause any dent in the prosecution case.
178. It must be remembered that when such shocking incident
has occurred all of sudden, prosecutrix or P.W.19-Krishna cannot be
expected to remember each and every detail with all minor aspects so as
to reproduce them in the court without committing any error or mistake.
A witness by and large cannot be expected to possess a photographic
memory and to record details of the incident. It is not, as if, videotape is
replayed on mental screen. Ordinarily it so happens that a witness is
overtaken by the events. Witness could not have anticipated the
occurrence that so often has an element of surprise. His mental faculties
therefore cannot be expected to be attuned to absorb details. Therefore,
people can not accurately recall conversation and reproduce words heard
by them. It is, therefore, unrealistic to expect a witness to be human
tape-recorder. Moreover, power of observation is different from person
to person. What one may notice and other may not. Witness also cannot
be expected ordinarily to recall accurately exact sequence of events
which took place in rapid succession or in short time span. Hence
witness is liable to get confused or mixed up when interrogated later on.
179. Most importantly, a witness, like prosecutrix, a young girl
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who had already undergone the trauma of post traumatic stress disorder
is liable to overawed by the court atmosphere and piercing cross
examination made by the different Counsels and out of nervousness mix
up facts and get confused regarding sequence of the events or fill up
details from imagination at the spur of moment. The sub-conscious
mind of the witness sometimes so operates that on account of the fear of
looking foolish or being disbelieved, though the witness is giving truthful
and honest account of the occurrence of the incident witnessed by him.
Perhaps it is a sort of psychological defence mechanism activated on the
spur of moment. These reasons which are so elaborately laid down in the
case of Bhoginbhai Hirjibhai V State of Gujarat, AIR 1983 SC 753, perfectly
apply to the facts of the present case.
180. Here horrendous incident has occurred all of a sudden. The
circumstances in which the prosecutrix and witness Krishna found
themselves were such that they cannot be expected to tape-record or
remember all the details and thereafter to reproduce them one month
after the incident and thereafter in the Court when they were subjected to
piercing and searching cross examination of four different defence
Counsels, which cross examination is running not only in several pages
but on every minor details of the incident. It would have been unnatural
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and unbelievable if such discrepancies had not occurred in their
evidence. The fact that such minor discrepancies are appearing in their
testimonies gives credential to their deposition. They give inbuilt
guarantee of the truthfulness of their testimony. Corroboration of the
evidence with mathematical niceties cannot be expected in criminal
cases. As held by the Apex Court in Leela Ram Vs. State of Haryana
1999(9) S.C.C. 526, minor embellishments or variations in details should
not render the evidence of eye witnesses unbelievable. Incidentally
corroboration of the evidence in mathematic niceties cannot be expected
in criminal cases. Trivial discrepancies ought not to obliterate an
otherwise acceptable evidence.
181. Different witnesses not only have different observation
powers but their reactions are also different. Therefore, where human
element comes in the picture, the variations are bound to occur. That is
the reason one seldom comes across the witness whose evidence does
not contain a grain of untruth or at any rate exaggeration, embroidery or
embellishment. Such is the situation of normal witness then otherwise,
could not be expected from the prosecutrix and Krishna who made their
statements under stress and in uncomfortable situation being the victims
of sexual assault. No true witness can possibly escape from making of
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such discrepant details, perhaps a untrue witness who is well tutored can
successfully make his testimony totally indiscrepant.
182. Therefore, whatever omissions, contradictions which are
pointed out have to be assessed in the background of the incident
happened, the mental condition in which complaint came to be recorded
i.e. when prosecutrix, her mother and Krishna had not gone to lodge a
complaint as such but to only cancel the missing complaint. Sudden
interrogation by the police must have disturbed the prosecutrix.
Therefore, being under the shock, she might not have given certain
details before the police which learned Spl.P.P. had become successful in
eliciting through her cross examination. Therefore, unless the
contradictions are of the material dimensions, unless the contradictions
are such which go to the root of the matter, unless they make the
evidence bereft of credence, much importance cannot be given to these
minor omissions and contradictions. When these witnesses are cross
examined about such with minutest details, it cannot be expected that
their evidence should be free from such discrepancies. These
discrepancies therefore do not affect the substratum of prosecution case.
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EVIDENCE RELATING TO COMPLICITY OF ACCUSED:-
183. This brings me to the evidence relating to the involvement of
the present accused in the incident. The prosecutrix in her complaint as
well as in evidence before the Court has categorically given the
description of all the accused persons and also the specific role played by
each of them in the incident. Her evidence in this respect is fully
supported and corroborated by the evidence of P.W.19 Krishna who was
with her at the time of incident. In his statement recorded on 3.9.2013
and in his evidence before the Court, he has also given the description of
these four accused and juvenile-in-conflict-with-law. Both the
prosecutrix and P.W.19 Krishna have identified all the four accused in the
Court without any confusion. Therefore, as it is, there should not be any
doubt about the involvement of the accused or about their identification
by the prosecutrix and P.W.19 Krishna considering the fact that both of
them had more than sufficient opportunity to observe these accused
persons, at the time of incident.
EVIDENCE OF TEST IDENTIFICATION PARADE:-
184. In addition to that, there is also evidence of test identification
parardes of the accused which were conducted by P.W.21 Tananji Patole,
Tahasildar & Executive Magistrate and P.W.30-Mr. Vijay Shete, Naib
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Tahsildar. P.W.21 Tananji Patole, has conducted test identification
parades of three accused, namely, accused No.2 Mohd.Kasim, accused
No.3 Mohd.Salim and accused No.4 Vijay Jadhav at Byculla Jail vide letter
dated 12.9.2013 (Exh.71) issued to him. Whereas P.W.30-Mr.Vijay Shete,
Naib Tahasildar has conducted test identification parade of accused No.1
Mohd.Ashfaq at Thane Jail on 17.9.2013 vide letter(Exh.114) dated
16.9.2013 issued by Sr.PI Crime Branch. Memorandum Panchanamas of
these test identification parades are produced on record at Exh.72 and
Exh.116. In both these test identification parades, the prosecutrix and
P.W.19- Krishna have identified all the four accused correctly.
185. These identification parades were held even before the arrest
of the accused Nos. 2 to 4 in this C.R. As stated above, four accused were
in custody in C.R. NO.83/13 of DCB CID in respect of the similar incident
of gang rape on photojournalist on 22.8.2013. In view of the information
given by juvenile-in-conflict-with-law Akash and considering the
description of the suspects given by the prosecutrix and P.W.19 Krishna,
the manner in which the incident has taken place and the incident taking
place at the same spot of incident, P.W.31 PI Nikumbe arranged for test
identification parade of those four accused in this C.R. before their
formal arrest. As per evidence of P.W.21 Vijay Patole in the four separate
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parades conducted by him of four accused arrested in another C.R. No.
83/13 namely accused No.2 Mohd. Kasim, accused No.3 Mohd. Salim,
accused No.4 Vijay and accused Siraj, prosecutrix and Krishna identified
these accused Nos. 2 to 4 only. They did not identify accused Siraj.
186. As regards accused No.1 Mohd. Ashfaq he was arrested on
14.9.2013 and immediately thereafter, his test identification parade was
conducted by P.W.30 Vijay Shete on 17.9.2013 and he was identified by
both prosecutrix and Krishna.
187. Both these witnesses who have conducted test identification
parades, are cross-examined at length by all the four defence counsels.
However, nothing worthwhile is elicited in cross-examination to
disbelieve their evidence or to reject Memorandum Panchanamas of the
test identification parades as got up documents. They are also totally
independent official witnesses who have conducted test identification
parades in discharge of their duties.
188. However, evidence relating to the test identification parades
is challenged on several counts. In the first place, it is submitted that
none of these Tahasildars have followed the procedure or the rules laid
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down in the Govt. Circular Home Department No.MIS 1054/84588 dated
22.4.1955 reproduced in Criminal Manual by the Hon'ble High Court, for
conducting test identification parade. It is argued that though P.W.21-
Tanaji Patole has stated that contents of Memorandum
Panchanama(Exh.72) are in his handwriting, the contents thereof do not
support the same as it is mentioned therein that Executive Magistrate
has done all this procedure. Though he has stated he had selected the two
Panchas out of 4-5 persons passing near the jail, this fact is not
mentioned in the Memorandum Panchanama. It is also not mentioned
in the Memorandum Panchanama whether he made inquiry with the
Panchas if they had previously acted as pancha or whether they were
regular Panchas etc. Further he has also not asked the accused persons if
they wanted their Advocates to remain present for test identification
parade. He also cannot say which clothes these four accused were
wearing when they were brought for test identification parade. He also
cannot say the colour of the clothes which they wore after changing. In
the memorandum panchanamas also the colour of their clothes is not
written. It is urged that at the time of actual Test Identification Parade, as
stated by him, the rough notes were made and on that basis, the
panchanama was written in the office of Superintendent of Jail
subsequently, those rough notes are not produced on record. It is not
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stated by him that room was having one door or how many windows ?
The measurements of the room were also not mentioned in the
panchanama. He did not see whether CC TV cameras were installed in
the room of Superintendent of Jail.
189. Similarly P.W.30 Mr. Vijay Shete has also admitted in his
cross-examination that he has not mentioned in the Panchanama that
he asked the witnesses whether the police had shown them the
photographs of accused. He also did not ask accused No.1 Mohd. Ashfaq
whether he wanted his Advocate to remain present for test identification
parade. Further he has admitted that six dummy persons were wearing
the clothes of different colours but he cannot say which clothes accused
No.1 Mohd.Ashfaq was wearing or which clothes other six dummy
persons were wearing. He also cannot say out of the six dummy persons
how many were wearing footwear, how many were wearing the sandles
and how many ware wearing the shoes. Moreover out of the six dummy
persons, three dummy persons were about the age of 30 years whereas
accused No.1 Mohd. Ashfaq is only of the age 23-24 years. He also cannot
say whether the hair of dummy persons were short or long and one of
them was having beard and one dummy was having weak eyesight. He
also cannot say that how many dummy persons were having mustache.
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Further it is submitted that before pancha Momin was sent to bring the
victim girl, he had seen the accused and accused was wearing the same
clothes which he was wearing when pancha returned along with first
prosecutrix, and then Krishna therefore, possibility of Panch informing
the witnesses or giving hint to the witnesses cannot be ruled out.
190. Thus, in short, according to the Learned Counsels for the
accused, test identification parades in the present case were not at all
properly conducted by following due procedure and the said evidence
should not be accepted on record especially in the light of the fact that
out of these four accused, three accused were already arrested in another
C.R. No.83/13 and they were very much in the custody of the Crime
Branch which is having the office in the same premises of N.M.Joshi Marg
Police Station. Therefore, when there is possibility of the accused being
shown to the witnesses before their test identification parades and
considering the infirmities in the test identification parades, this Court
should exclude the evidence of the test identification parades to prove
the involvement of the accused.
191. The argument is also advanced to the effect that prosecutrix
has stated that she did not know any person by name Vijay Shetye. She
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has never met him and police has never introduced him to her. Therefore,
according to Learned Counsel for the accused there is no guarantee of
any such test identification parade of accused no.1 Mohd. Ashfaq having
really taken place.
192. Now as regards the evidence relating to test identification
parades, it has to be remembered that the test identification parade
belongs to the stage of investigation by police. It is held mainly for the
purpose of giving assurance to the Investigating Officer that investigation
is going on the proper track. The substantive evidence about involvement
of the accused in the case is their identification in the dock by the
witnesses at the time of trial. What, therefore, the Court has to see while
assessing the evidence relating to the test identification parade of the
accused is to whether there were sincere efforts on the part of the
Magistrate to make sure that the ability of the witnesses to recognize the
suspect has been fairly and adequately tested which is the object of the
test identification parade and whether test identification parade in
general can be called as fair so as not to cause any prejudice to the
accused. Some laxity in the manner of conducting of test identification
parade is bound to occur when four test identification parades were held
and that too of four accused and two witnesses. Those laxities do not go
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to the root to wipe out its evidentiary value totally from record, as held by
the Apex Court in the case of State of Maharashtra V/s. Suresh 2000 SCC
(Cri) 263, when similar such contentions were raised to challenge the
evidentiary value of test identification parade. According to the Hon'ble
Supreme Court.
If potholes were to be ferreted out from the
proceedings of the Magistrates holding such parades
possibly no test identification parade can escape from
one or two lapses. If a scrutiny is made from that angle
alone and the result of the parade is treated as vitiated
every test identification parade would become
unusable. We remind ourselves that identification
parades are not primarily meant for the court. They
are meant for investigation purposes. The object of
conducting a test identification parade is twofold.
First is to enable the witnesses to satisfy themselves
that the prisoner whom they suspect is really the one
who was seen by them in connection with the
commission of the crime. Second is to satisfy the
investigating authorities that the suspect is the real
person whom the witnesses had seen in connection
with the said occurrence. So the officer conducting the
test identification parade should ensure that the said
object of the parades is achieved. If he permits dilution
of the modality to be followed in a parade, he should
see to it that such relaxation would not impair the
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purpose for which the parade is held.
193. In the present case even if for the sake of argument, it is
assumed that there are some laxities, it cannot be said that they are fatal
to affect their evidentiary value. There does not appear to be any such
unfair aid or assistance given to the identifying witnesses by investigating
agency so as to facilitate the identification of the accused. Investigating
agency does not appear to have played any hand in conducting of these
parades. It is pertinent to note that neither the prosecutrix nor P.W.19
-Krishna have identified accused Siraj arrested in another C.R., though
his test identification parade was also conducted along with these three
accused namely accused No.4 Vijay, accused No.2 Mohd.Kasim and
accused No.3 Mohd. Salim. If at all Investigating Officer had played any
hand in conducting of test identification parade or extended any unfair
aid, like showing photographs of these accused to the prosecutrix or P.W.
19 Krishna, it goes without saying that they would have identified the
accused Siraj also. However, the very fact that, though accused Siraj was
put for test identification parade, he is not identified by these two
witnesses gives inbuilt guarantee that test identification parade was
conducted in most fair manner and investigating agency has not
influenced the judgment of the witnesses by showing them the
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photographs.
194. It is pertinent to note that test identification parades were
held immediately after lodging of the complaint and before arrest of the
accused. Hence there was absolutely no occasion as such, for the
investigating agency to show the accused or their photographs to the
prosecutrix or to the witness Krishna. As a matter of fact, there was no
necessity at all to show the photographs of the accused to the witnesses
because both the prosecutrix and Krishna had given detailed description
of these accused and that was the reason why investigating agency felt it
necessary to hold test identification parade of the accused arrested in
C.R.No.83/13 as description given by the prosecutrix and P.W.19 Krishna
of the suspects involved in their incident was tallying with the accused
arrested in C.R.No.83/13.
195. Things would have different if the prosecutrix and Krishna
had not at all given description of the suspects or they had no
opportunity also to observe the suspects, at the time of incident. As a
matter of fact, the evidence on record in this case, is so clinching that
there remains no scope for any doubt about identification of the accused
as both the witnesses have categorically identified the accused in the
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Court also in the trial which took place within 3 months after the
incident. The evidence of test identification parade which is held during
the stage of investigation cannot be replaced, substituted or prevailed
over the substantive evidence of identification of the accused by the
witnesses in the Court. The only purpose of evidence of test identification
parade, as stated above, is to support or give corroborative value to the
evidence of identification of the accused in the court by the witnesses.
196. As held in Dattatrya s/o Ankush Sasane Vs. State of
Maharashtra 2007 ALL MR(Cri) 6, the evidence of test identification
parade is considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court as to identity
of accused who are strangers to them. It is a process in investigation to
confirm the truthfulness about the identity and not more than that. If
suspects are totally unknown to the witnesses and witnesses had no
sufficient opportunity to observe them, then it may be true that the
evidence of test identification parade assumes significance.
197. Here in the case though it is true that, suspects were
unknown to the prosecutrix and P.W.-19 Krishna, the second aspect that
they had no opportunity to observe them is not true. If they had no such
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opportunity, they would not have given detailed description of the
accused in the complaint (Exh.47) and in their statements respectively.
Secondly, here in this case the identification of the accused in the Court
is also within 3 months after the incident. The incident has taken place
on 31.7.2013 and the evidence of prosecutrix was recorded in the Court
on 30.10.2013 whereas evidence of P.W.19- Krishna was recorded on
20.11.2013. Therefore, there was hardly any time gap for the witnesses to
forget the peculiar and specific features of the accused.
198. Moreover there are certain other circumstances which are
peculiar to this case and which go to establish in the convincing manner
the identity of the accused. Assuming that there are certain infirmities in
the test identification parades or there is possibility of prosecutrix and
the witnesses being shown the photographs of the accused, hence even if
evidence relating to the test identification parades is excluded from
consideration, in this case it has little effect as the assurance could be
available as regards the identification of the accused from the
circumstances in which the incident has taken place.
199. First and foremost circumstance is the nature of the offence
which is of sexual assault and molestation. It is absolutely not necessary
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to say that victims of sexual offences especially of gang rape, had more
than sufficient opportunity and proximity with the accused to identify
them later in the Court. Moreover, the nature of offence is such that it is
simply inconceivable and would be in flagrant disregard of human
psychology to hold that the prosecutrix or victim will forget the faces of
her tormentors. Those faces must have been imprinted forever on her
mind. Therefore, whenever she remembers or recalls the incident or
even without doing so, those faces must come vividly before her eyes.
She will identify them out of hundreds and even after lapse of years. To
hold otherwise or disbelieve the prosecutrix on this aspect, hence will be
defying the logic and reason. One has to take realistic and sensitive
approach in such case. Therefore, the nature of offence which provided
utmost opportunity for the prosecutrix to observe the accused, coupled
with the psychological impact it has made on her makes it necessary to
believe her evidence to prove identification of the accused made by her
in the Court.
200. If one has to place reliance on any authority for the said
purpose, one can take recourse to the case that of State of Madhya
Pradesh V. Sunder Lal, AIR 1992 SC 1413 wherein the victim who was a girl
of 13 years was raped. Identification of the accused by the victim in the
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Court was challenged. The High Court was of the opinion that test
identification parade was necessary which was not conducted. The
Honble Supreme Court held that, High Court was in error in
disbelieving the testimony of prosecutrix with respect to identity of the
accused. She was 13 years old and she could not have forgotten the face
of the man who committed such ghastly crime upon her. It is not a case
where she had a mere fleeting glimpse of the accused. We are, therefore,
of the opinion that identity of accused has been amply established.
201. The point to be stressed is that, in such cases it would be an
absurd requirement to hold that while for the offence of theft etc.
committed by the intruder, an uncorroborated identification by the
occupant of the house would be enough but if the offender goes ahead to
commit rape also, which brings the offender very close to her,
corroborated identification evidence would be necessary. It would
amount to putting on unexpected and unwelcome premium on rape. The
victim of a rape has more incentive and to memorise the offender's
appearance than the victim of a mere theft or robbery.
202. Therefore having regard to the totality of the nature of
offence to which prosecutrix was subjected to, the fact that she has given
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detailed description of the accused in her complaint, there can be no
ground to disbelieve her evidence as regards identification of the accused
in the Court, even if evidence relating to test identification is excluded.
203. Moreover, as stated above, this is a unique case in the sense
that prosecutrix alone was not the victim and eye witness to the incident
but there is one more witness i.e. PW-19 Krishna who was also with the
prosecutrix in the major part of the incident and who has an equal
opportunity to observe the accused as his evidence shows that when
accused were going one after another to commit sexual assault on the
prosecutrix, remaining accused continued to detain him. Therefore, he
had also an opportunity to observe the accused.
204. It is also pertinent to note that incident has taken place for
about more than half an hour. As stated by the prosecutrix, they reached
Mahalaxmi Railway Station at about 7.30 p.m. and therefore, around 7.45
to 7.50 p.m. they might have entered into Shakti Mill premises. They left
the same and came to CST at about 8.40 p.m or 9.00 p.m. because as per
the evidence of P.W.4 Dipesh Pumbhalia he received phone call from
Krishna at about 9.00 p.m. Therefore, both these witnesses had sufficient
opportunity to observe the accused and note their facial features and that
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was the reason they could describe them properly in the complaint and
statement respectively.
205. Though it is contended that there was no sufficient light for
these witnesses to observe the suspects as incident has taken place in
between 8.00 to 8.45 p.m., the evidence on record, as led by the
prosecutrix, falsifies this contention. In a specific question put to her by
Spl.P.P. she has categorically stated that there was light of the torch of the
mobile in the hands of the accused and the accused were using said
torch. Muddemal Article No.11 mobile, recovered from accused No.1
Mohd. Ashfaq is having such torch as deposed by Panch witness also. She
has further stated that there was also light from bogies of the train. P.W.19
Krishna has also stated that there was light from the building nearby.
206. Moreover in a city like Mumbai and in a place like Shakti Mill
which is just near to Mahalaxmi railway station, it cannot be said that
there was pitch darkness that one cannot see at all. The fact that accused
can commit the various sexual acts makes it clear that they were able to
see and if the accused were able to see, then it follows that prosecutrix
and P.W.19- Krishna were also able to see the accused and note their
features, appearance, manner and the way they were conducting
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themselves. One of the accused like accused No.3 Mohd Kasim has, by
holding stone near the face of Krishna said to him that " gandu, jyada
chillaya to yahi mar dalenge." whereas accused No.1 Mohd. Ashfaq has
put handkerchief in the mouth of the prosecutrix. Therefore, P.W.19
Krishna had sufficient opportunity to observe these accused persons
from close proximity. Moreover, the accused have brought them near
Mahalaxmi railway track. Therefore, needless to state that in the light of
railway track also prosecutrix and Krishna had opportunity to see the
accused.
207. Though it is contended that in FIR, prosecutrix has not stated
that there was light of torch of the mobile and also the light from the
bogie of the train and hence it is improvement, I have already discussed
this aspect that even if police had not thought it necessary to ask the
prosecutrix whether there was any light at the time of incident or whether
there was some darkness, it was the duty of the Spl.P.P. to get the
clarification and explanation on this aspect so as to help the court to
arrive at the truth and as I held herein above, there was nothing wrong in
it if prosecutor has discharged his duty and asked some questions to the
witness. It cannot be said that those questions were leading or those are
improvements made by the witness. If Police had at the time of recording
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statement u/s. 161 of Cr.P.C. in their wisdom asked those questions,
answers would have come out. Public Prosecutor cannot be nailed to
those statements. If he had also not asked those questions, he would have
been failing in his duty of bringing all the facts before the court and that
was the reason why it is held that prosecutor is not nailed down to the
statement recorded by police. He is representing prosecuting agency
whose duty is to assist the court in arriving at the truth.
208. Moreover, as per well settled position of law, the bizarre
incident like dacoity and sexual assault cannot just fade away from the
memory of the witnesses. They are bound to observe and note forever the
features of those persons who figured in that incident.
209. As observed by Apex Court in the case of Ravinder Kumar V.
State of Punjab 2001 Supreme Court Cases (Cri) 1384 relied upon by the
Learned Spl.P.P., the bizarre incidents have the tendency to stick in the
mind of the person indelibly. Anything which has any special or peculiar
lineament can create an impact on the human mind lasting long after.
While it is true that routine events in a man's day to day life may not
remain in his mind for being remembered later, any odd or bizarre
happenings involving him or in front of him will always have the
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tendency to stick in his mind indelibly and if there is any cause for him
to recollect such events again, his memory get refreshed. That is why he is
able to narrate such event with all details when asked to do so. This
applies to all witnesses in criminal cases involving serious offences. The
memories of such events are not likely to fade up from the canvass of
their minds. Hence, it will be unrealistic to jettison the testimony of such
witnesses on the mere ground how they could have remembered the
identity of the person.
210. The contention that witnesses cannot recognize the persons
involved in such events is overlooking the psychological phenomenon
that human memory is very often a conditioned characteristic. In this
case, therefore, it is but natural for the prosecutrix and P.W.19 Krishna to
remember the faces of the accused persons. Such incidents to which
they were subjected to are not routine events but they are shocking, life
threatening and therefore, they have the effect of being photographed in
their mind. Hence, there is nothing unnatural if they had seen the
accused even in that light and remembered their faces so as to identify
them later in the court.
211. Though contention is also raised that witnesses were shown
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the photographs of the accused, that contention is not substantiated on
record. Both the prosecutrix and Krishna have categorically denied
suggestion to that effect. Hence an attempt is made to examine defence
witness Dayanand Kamat, the Special Correspondent in DNA newspaper
to show that in respect of gang rape, one news item was published in
DNA news paper dated 4.9.2013. However, photographs of the accused
are not appearing in the said newspaper and both the prosecutrix and
Krishna have denied about reading or watching of this news in
newspaper or on T.V. Otherwise also this news article is not properly
proved and therefore, it is not exhibited.
212. Hence though Learned Counsel for the accused have relied
on the authority of Sanjay @ Gangadhar Vishvarup Shelke and another V.
State of Maharashtra 1999 (3) Mh. L.J.71, as the facts of the said authority
being totally different, the observations made therein cannot be made
applicable to the present case. In the said authority, the witness had no
chance to observe the accused or to note their features so as to identify
them in the identification parade. It was brought on record that 7- 8
persons who had come to commit dacoity at petrol pump had tied cloth
around their head. The witness had seen them from the glass cabin. He
has not given the description of the miscreants to the police. Some of the
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witnesses had run away and hardly seen the accused and if seen, it was
only for about one and half minute. Moreover the evidence on record
proved that for test identification parade accused were brought in the
presence of the identifying witnesses therefore, evidence relating to the
identification of the accused in test identification parade was disbelieved.
In the backdrop of these facts it was held that defence need not prove to
the hilt that the photographs of the accused were shown to the witnesses.
They can discharge their burden by bringing the circumstances on record
to prove that there was reasonable possibility of the accused being
shown to the witnesses prior to the test identification parade.
213. As against it, in the present case no such possibility is
brought on record and otherwise also there was no reason to show the
photographs of the accused to the proseuctrix and the witnesses as the
accused had not covered their faces at the time of incident and
description of all the accused was given in the complaint itself.
214. Spl.P.P has also relied on the authority of D. Gopalkrishnan
V/s. Sadanand Naik and Ors. (2006)1 Supreme Court Cases (Cri) 600 to
submit that there is nothing wrong in showing the photographs of the
accused to the witnesses, assuming that they were shown. It was held in
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this authority that there are no statutory guidelines in the matter of
showing photographs to the witnesses during the stage of investigation.
But nevertheless, the police is entitled to show the photographs to
confirm whether investigation is going on in the right direction. During
the course of investigation if the witnesses had given identifying features
of the assailants, the same could be confirmed by the Investigating
Officer by showing the photographs of the suspects.
215. Here in the present case there is absolutely no concrete
evidence on record to prove that such photographs were shown to the
accused or there was any reason at all to show the photographs of the
accused to the witnesses. If it was done, then as I stated above,
prosecutrix and PW-19 Krishna would have identified even accused Siraj
who is arrested in another CR No.83/13 and whose identification parade
was held by the Tahasildar.
216. As regards the contention of the defence Counsel that
prosecutrix has admitted that she does not know the person by name
'Vijay Shete' and she was not introduced to him by Police, it is but natural
that police must have introduced him to her as Tahasildar or Executive
Magistrate and not by his name. He had come in his official capacity as
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Executive Magistrate and if she was asked whether she knows him by his
official capacity and she had said 'No', her answer to some extent would
have affected the evidence relating to the test identification parade but
that is not the case here.
217. As a matter of fact, each case depends on its own facts and
circumstances. As the appreciation of evidence, even if it may be to the
area of the identification of the accused, depending as it does on such
variable and inconsistent factor as human nature, the different set of
circumstances obtaining in each case, cannot be reduced to a set
formula. No straight jacket formula therefore, can be made applicable to
hold that as the evidence of test identification parade is suffering from
some infirmity it should be excluded from consideration, and hence the
identification of the accused by the witness in the court is not admissible,
acceptable or reliable.
218. Much also depends as stated above upon several factors like
the nature of the offence, the proximity of the accused with the witnesses,
observing, absorbing, retaining and recalling power of the witness, the
special identifying features of the accused, the manner, time and place of
meeting etc. Hence the witnesses who identify the accused in the Court
143
for the first time after the occurrence of the incident also cannot be
disbelieved, nor their testimony can be jettisoned simply because
investigating agency has committed default in holding test identification
parade or Magistrate has committed some laxities or infirmities in
conducting the same. The evidence of such witnesses has to be
scrutinized independently dehors such evidence of test identification
parade. Upon such independent scrutiny, if the evidence is found to be
natural, reliable and inspiring confidence as in the present case, then it
can be accepted without being swayed by the fact that there are some
infirmities in the test identification parade.
EVIDENCE RELATING TO CALL DETAIL RECORD :-
219. In this case, in addition to the evidence of test identification
parade and identification of the accused, by both the prosecutrix and PW
19 Krishna in Court also, other clinching evidence on record which
proves the involvement of the accused in the incident, is the
contemporaneous documentary evidence of Call Detail Records of the
mobiles phones of accused.
144
RECOVERY OF MOBILE PHONES AT THE INSTANCE OF ACCUSED
NOS.1, 2 AND 3 :
220. The evidence on record in this case goes to prove that on
03/09/2013 itself, after taking over investigation of the case, Investigating
Officer, P.W.25-P.I.Arun Mane had formed various teams for taking search
of the accused and on the same day, at about 8.30 p.m., Akash, juvenile-
in-conflict-with-law was produced before him. During inquiry with him,
the names of other accused were transpired. However on 05/09/2013, its
further investigation was handed over to DCB, CID, Unit-III. The reason
for the same appears to be that the accused whose names were
transpired from the interrogation of juvenile and in view of description
given by prosecutrix and P.W.19-Krishna, were already arrested in C.R.No.
83/2013 in the similar offence of gang rape in Shakti Mill premises on
22/08/2013. During the police custody in the said C.R.No.83/2013,
accused No.2-Mohd.Kasim and accused No.3-Mohd. Salim were
interrogated and at their instance, the mobiles which were used by them
during commission of the offence were recovered.
221. In this respect, there is evidence of P.W.20-P.I.Gulabrao More
attached to DCB, CID, Unit-II. According to his evidence, on 24/08/2013,
on receipt of information that wanted accused No.3 Mohd.Salim had
145
gone to the house of his relative in Delhi, along with his team, he started
from Mumbai for going to Delhi. The relative of the wanted accused
namely Izaz Abdul Ansari was also with him. They reached to Delhi at
about 7.40 a.m. at airport on 25/08/2013. On the information given by
the relative of the accused No.3-Mohd.Salim, that, he was residing in the
house of his relative at Ashok Vihar, as per evidence of P.I. More, they first
went to Bharat Nagar Police Station. There they took one Constable
Sanjiv Kumar buckle No.1794 in plain clothes along with them and laid
trap at J.J.Colony, Vazirpur, bus stop No.115 at about 9.30 a.m. Thereafter
at about 10.20 a.m., the wanted accused-Mohd.Salim came there in auto-
rickshaw. When he got down from auto-rickshaw, his relative Izaz
pointed him and, hence, they took him in custody. Then in presence of
the panchas, they took his personal search and in that personal search,
one black colour mobile of Nokia Company was found in his right pant
pocket along with one railway ticket dtd.23/08/2013 from Kalyan to Delhi
and the cash of Rs.300/- in the denomination of Rs.100/- each. P.I. More
opened the mobile phone in the presence of panchas. It was not having
SIM card but battery was there along with the memory card of 4 GB. The
said mobile phone was kept in brown cover after nothing in panchanama
his IMEI number and sealed in the presence of panchas. The
panchanama Exh.49 was prepared accordingly in C.R.No.83/2013, the
146
copy of which is produced at Exh.67. The said mobile is marked as
Muddemal Article No.20 in this case and the railway ticket and the cash
amount is marked as Muddemal Article No.21(colly). Thereafter the
medical examination of the said accused was carried out in hospital and
he was brought under transit remand to Mumbai.
222. This evidence of P.W.20-P.I.More finds full support and
corroboration through the evidence of panch witness-P.W.18-Ajay Kumar
Gautam r/o D/27, J.J.Colony, Vazirpur, Delhi. In his evidence, he has also
stated that on 25/08/2013, when he and his friend were taking tea near
bus stop No.115, at about 10.30 a.m., police constable Sanjivkumar
requested him to act as panch. He introduced him to the police from
Mumbai Crime Branch and in his presence, personal search of the
accused-Mohd.Salim was taken and in his personal search, one black
colour phone of Nokia Company X-2 model was found. It was not having
SIM card but the memory card of 4 GB was there. It was seized in his
presence. Similarly the railway ticket from Kalyan to Delhi dtd.
23/08/2013 and cash amount of Rs.300/- was also seized from the
possession of the accused in his presence. He has identified the said
mobile as Muddemal Article No.20 in this case and signature on the
panchanama-Exh.67 and also the railway ticket as Muddemal Article
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No.21.
223. Thus the recovery of the mobile-Muddemal Article No.20
from possession of accused No.3-Mohd. Salim with the railway ticket of
the relevant date from Kalyan to Delhi is proved on record and it is
sufficient to connect the accused to the incident in this case on the basis
of Call Detail Record, which evidence, I will be discussing subsequently,
For the time being, suffice to say that this mobile-Muddemal Article No.
20 was recovered at the instance of accused No.3-Mohd.Salim on
25.8.2013 itself even before he was arrested in this C.R. and even before
this C.R. was registered.
224. At the instance of accused No.2-Mohd.Kasim also, one
mobile was recovered and its recovery is proved through the evidence of
P.W.15-A.P.I.Vinod Tawde, panch witness P.W.8-Pravin Parmar and the
mobile seller P.W.12-Ravi Dandagule. As per evidence of P.W.15-A.P.I.
Tawde who is attached to DCB, CID, Unit-III, in investigation of another
C.R.No.83/2013, he was assisting P.I. Dhanavade. On 25/08/2013, on
information that wanted accused by name Mohd.Kasim @ Bangali Baba
was likely to come in the area of Nair Hospital, he along with staff went
there and laid the trap. At about 4.00 p.m., when accused came there, he
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took him in custody and arrested him under panchanama-Exh.63,
original of which is produced in another Sessions Case No.846/2013
registered on C.R.No.83/2013.
225. It is his evidence that on 29/08/2013, at about 11.00 a.m., as
per the directions of P.I.Dhanavade, while he was interrogating this
accused in C.R.No.83/2013 by taking him in confidence, accused NO.2-
Mohd.Kasim disclosed that he wants to give some material information
in respect of the said offence. Hence, he called two panchas namely P.W.
8-Pravin Parmar and Dilip Chavan. In their presence, accused voluntarily
made the statement in Hindi that he is ready to produce the mobile
which he has sold the said mobile to some person and he will show them
the said person. His statement was reduced to Memorandum
Panchanama-Exh.37
226. As per his evidence thereafter, accused No.2-Mohd.Kasim
guided the police and panch in the vehicle from N.M.Joshi Marg to
Byculla and from there to Nagpada and at J.J.Hospital signal. There
accused told the driver to turn the vehicle on right side and after
travelling some distance, accused told the driver to stop the vehicle.
Then accused got down from the vehicle and took the police and panchas
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towards the footpath near Akbar Peerbhai college. There accused
stopped in front of one mobile seller. He removed the veil on his face and
asked the mobile seller i.e. P.W.12-Ravi Dandagule to produce the mobile
which he has sold to him six days back. Thereafter police showed the
identity card and introduced panchas and told him the purpose of visit.
On inquiry, P.W.12-Ravi Dandagule produced the mobile which was
identified by accused No.2-Mohd.Kasim to be the same. The said mobile
phone was opened and its IMEI number was noted. It was of Nokia
company. It was sealed and seized under panchanama-Exh.38. Both, the
panch and A.P.I. Tawde identified Muddemal Article No.12 to be same
mobile which was recovered at the instance of accused No.2-
Mohd.Kasim.
227. There is supporting and corroborating evidence on this
aspect of P.W.12-Ravi Dandagule, the Mobile Seller who has stated on
29/08/2013, when police came along with accused No.2-Mohd.Kasim, at
the instance of the accused, he has produced the mobile which he has
purchased from accused No.2-Mohd.Kasim about 5-6 days back. He has
also identified the said mobile Muddemal Article No.12 and accused No.
2-Mohd.Kasim in this case. There is absolutely nothing in his cross
examination either to disbelieve him or to discard his evidence.
150
228. Thus the evidence of P.W.15-A.P.I.Tawde, P.W.8-Pravin Parmar
and P.W.12-Ravi Dandagule goes to prove the recovery of mobile-
Muddemal Article No.12 at the instance of accused No.2-Mohd.Kasim on
29.8.2013 itself again, much prior to this arrest in this C.R. and before
even registration of this C.R.
229. As per the seizure panchanamas, IMEI number of the
mobile-Muddemal Article No.12 recovered at the instance of accused No.
2 Mohd. Kasim is 359730045756160 whereas as per the panchanama Exh.
38, IMEI number of the mobile-Muddemal Article No.20 recovered at the
instance of accused No.3-Mohd. Salim is 35815044698550.
230. There is recovery of the mobile at the instance of accused No.
1-Mohd.Ashfaq also who is arrested subsequently on 14/09/2013 by P.W.
16-A.P.I.Avinash Kavthekar attached to DCB, CID, Unit-II. According to
the evidence of P.W.31-P.I.Nikumbe, on receipt of investigation papers
from N.M.Joshi Marg Police Station on 05/09/2013, he noticed that
wanted accused Mohd.Ashfaq was absconding. Hence he formed search
teams to arrest him and sent those teams to his house at Mohd.Ashfaq at
Mumbra, at the house of his parents at Byculla and his friends and
relatives. He was not found on that day or thereafter till 13/09/2013
151
though day to day search was being taken.
231. However, on 14/09/2013 as stated by P.W.16-A.P.I. Avinash
Kavthekar, he received the information from the secret informant that
accused-Mohd.Ashfaq required in this C.R. was likely to come at Girgaon
Chowpati behind the statute of Lokmanya Tilak. Hence, after giving
information to In-charge Officer P.I.Raje, he along with printer, laptop
and and other material went to Girgaon Chowpati and laid the trap.
There at about 4.30 p.m., they found one person in suspicious condition.
Their secret informant identified him as accused No.1-Mohd.Ashfaq. On
inquiry, he confirmed the said name and, hence, two panchas Yogesh
Vaishya and P.W.14-Pravin Merchande were called and in their presence
the personal search of the accused was taken in which one black colour
mobile of Nokia company with silver border, was found along with one
wallet containing of Rs.1,550/-, three visiting cards, one attendance card
and two railway tickets dtd.06/09/2013 from Ajmer to Bandra and dtd.
14/09/2013 from Vadodara to Mumbai Central. Mobile was kept in
separate envelope. All these articles were seized, sealed and labels of the
signatures of panchas were affixed. Panchanama-Exh.60 was prepared
on the spot. He has identified mobile Muddemal Article No.13 as the
same mobile and Muddemal Article Nos.14 to 19 are the same railway
152
tickets, attendance card, three visiting cards and cash seized from the
possession of the accused.
232. There is also supporting evidence of P.W.14-Pravin Tukaram
Merchande who has deposed that in his presence, personal search of the
accused No.1-Mohd. Ashfaq was taken and from his possession
Muddemal Article No.13-mobile and two railway tickets from Ajmera to
Bandra and Vadodara to Mumbai were found along with cash amount,
attendance card and visiting cards and he identified Muddemal Article
Nos.13 to 19. Again there is nothing in his cross examination also so as to
disbelieve him. He has been cross examined on various minutest details,
however, defence Counsel has not been successful in eliciting anything
which can create doubt about his veracity. These two railway tickets
explain the absence of this accused No.1-Mohd.Ashfaq after the incident
as a result of which, there was delay in his arrest though his role was
transpired in the incident immediately like role of other accused also.
233. As per evidence of P.W.31-P.I.Nikumbe, during police custody
of this accused No.1-Mohd.Ashfaq while he was interrogating him, on
22/09/2013, expressed desire to give disclosing statement. Hence P.W.7-
Sunil Madyalkar and the other panch-Narendra Mhadalkar were called
153
and he gave statement in Hindi that the mobile he was having on
31/07/2013 is with his wife and he is ready to produce the same, if they
accompany him. His statement was reduced to Memorandum
Panchanama Exh.34. Thereafter the accused guided the police and P.W.7-
Sunil Madyalkar to Mumbra in Scorpio vehicle. There near Mumbra
Railway Station, in front of Masjid, accused No.1-Mohd.Ashfaq told the
driver to stop the vehicle. Then he guided them to the third floor in
Kothari Building at Jeevan Baug. He took them to Room No.303. His wife
by name Nasrin Mohd.Ashfaq was present there and at the instance of
the accused, she produced black colour mobile of Nokia company having
the torch and as per the evidence of panch, police opened the mobile and
noted down IMEI number and SIM card number under panchanama.
Police again put up the SIM card and battery in the mobile and put that
mobile in the brown cover, sealed it and affixed the labels of their
signatures. Accordingly the recovery panchanama-Exh.35 was made. He
has identified the said mobile-Muddemal Article No.11 as the same
mobile which was seized in his presence. It is brought out in the cross
examination of this witness that this mobile was having the SIM card of
Vodafone company and its IMEI No. is 353751049773860 as stated in the
recovery panchanama (Exh.35)
154
234. Learned Counsel for accused No.1 Shri Salsingikar has
argued at length after cross examining P.W.31-P.I.Nikumbe and P.W.7-
Sunil Madyalkar on the point that this alleged recovery is fake one. In the
cross examination of P.W.31-P.I.Nikumbe, lot of suggestions were put to
him that from his mobile No.9870905999 which, admittedly he was using
in the course of investigation, he had made phone calls to Nasrin, the
wife of the accused No.1 and the said mobile was not recovered at the
instance of the accused in his house but it was recovered by calling his
wife at Mumbra Railway Station. He has urged that it was the reason why
P.W.31-P.I.Nikumbe has not produced the call detail record of his own
mobile and at one stage in cross examination, even denied having the
SIM card of mobile No.9870905999.
235. In my considered opinion, all this cross examination is totally
irrelevant in the backdrop of the cross examination of P.W.7-Sunil
Madyalkar. If the mobile phone was not recovered from the house of the
accused No.1-Mohd.Ashfaq then all the details of the said house, which
are brought out through cross examination of this witness, would not
have appeared. For example, in his cross examination, it is brought on
record that after getting down at Mumbra Railway Station, they walked
for about 10 minutes from the lane near Masjid. Then they took the left
155
turn after 5-7 minutes. The Kothari building was on left side of the road
and the building was of five floors. On one floor, there were 13 rooms.
Accused No.1-Mohd.Ashfaq went inside and except for one lady i.e. wife
of the accused, there was no one else present in the room. The room was
admeasuring about 10 X 12 ft. It is further brought out in cross
examination that the mobile was produced by wife of accused No.1-
Mohd.Ashfaq. There was only one SIM in the mobile and the same was of
Vodafone company. Police had not switched on the mobile or dialed any
number therefrom. These details clearly go to show prove that he had
gone to the house of accused and that's why he is able to give all the
relevant answers. He has flatly denied the suggestion that this phone-
Muddemal Article No.11 was produced by someone at Mumbra Police
Station and it was not seized from the possession of the wife of the
accused in their house. Hence, there is hardly any reason to doubt the
recovery of this mobile-Muddemal Article No.11 with SIM card at the
instance of the accused No.1-Mohd.Ashfaq.
236. The recovery of mobiles at the instance of accused is
challenged on the ground that none of the Memorandum Panchanama
says that accused has given the statement 'voluntarily' and this is an
improvement made by panch witnesses and the Investigating Officers in
156
the course of their evidence. In my considered opinion, when the
disclosing statement is followed with the recovery of mobiles of the
accused, it hardly matters whether in the panchanama, it is written or not
that accused has given the statement voluntarily or whether the
disclosing statement was made immediately after the arrest or some days
after the arrest, all these supposed considerations loose significance in
the face of the concrete evidence of recovery of mobiles.
EVIDENCE OF CALL DETAIL RECORD
237. In this backdrop, evidence relating to call detail records of
these three mobiles that is Muddemal Article No.20 recovered from the
possession of accused No.3-Mohd.Salim and the SIM card of it standing
very much in his own name, Muddemal Article No.12 recovered at the
instance of accused No.2-Mohd.Kasim and Muddemal Article No.11-
recovered at the instance of accused No.1-Mohd.Ashfaq from his house
assumes significance. The police have called for the Call Detail Records
of these three mobiles. The Nodal Officer of Tata Teleservices P.W.28-
Baby John who has furnished subscribers' call details record along with
the certificate in respect of Mobile No.9920465351 standing in the name
of accused No.3-Mohd.Salim and of mobile No.7208834042 recovered at
the instance of accused No.1-Mohd.Ashfaq.
157
238. Baby John is examined in this case as P.W.28 at Exh.90. He
has produced on record the letter received from Crime Branch, Unit III
calling information in respect of the mobile No.9920465351 and mobile
No.7208834042. His evidence goes to show that the Customer Application
Form and SIM card of mobile No.9920465351 is standing in the name of
accused No.3-Mohd.Salim. The original subscriber form is produced in
S.C.No.846/2013 and its true copy is produced on record in this case at
Exh.94. He has also produced the Call Detail Record vide Exh.98 in
respect of Mobile No.7208834042 which is standing in the name of Vitthal
Salunke along with certificate Exh.97 and also the information relating to
Cell ID of 24242 i.e. of Mahalaxmi Mumbai and Cell ID of 1311 i.e. of
E.Moses Road.
239. Then there is evidence of P.W.27-Changdev Haribhau Godse,
Nodal Officer from Vodafone company who has produced the customer
application form standing in the name of Mansoori Chandbibi (Exh.87) ,
Call Detail Record with certificate (Exh.88) and cell site address in respect
of Mobile No.9769125965, recovered at the instance of accused No.2-
Mohd.Kasim.
240. The summary of mobile calls exchanged between these three
158
mobile numbers can be given is as follows:
Date Time Duration Location of calling
party
Location of called
party
31/07/2013 20.08 25 9920465351
(Accused No.3-
Mohd. Salim)
Cell I.D.No.24242
Mahalaxmi
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
31/07/2013 20.10 11 9920465351
(Accused No.3-
Mohd. Salim)
Cell I.D.No.24242
Mahalaxmi
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.1311
Opp. E Moses Road
31/07/2013 20.18 13 7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
9920465351
(Accused No.3-
Mohd. Salim)
Cell I.D.No.1311
Opp. E Moses Road
31/07/2013 20.24 11 9769125965
(Accused No.2-
Mohd.Kasim)
Cell I.D.No.42251
J.R.Boricha Marg
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
31/07/2013 20.25 22 9920465351
(Accused No.3-
Mohd. Salim)
Cell I.D.No.24242
Mahalaxmi
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
31/07/2013 20.26 12 9920465351
(Accused No.3-
Mohd. Salim)
Cell I.D.No.24242
Mahalaxmi
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
31/07/2013 20.36 122 7208834042
(Accused No.1-
9920465351
(Accused No.3-
159
Date Time Duration Location of calling
party
Location of called
party
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
Mohd. Salim)
Cell I.D.No.24242
Mahalaxmi
31/07/2013 20.41 11 9769125965
(Accused No.2-
Mohd.Kasim)
Cell I.D.No.42251
J.R.Boricha Marg
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
31/07/2013 20.44 26 9769125965
(Accused No.2-
Mohd.Kasim)
Cell I.D.No.41532
J.R.Boricha Marg
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24242
Mahalaxmi
31/07/2013 20.55 25 9920465351
(Accused No.3-
Mohd. Salim)
Cell I.D.No.24243
Mahalaxmi
7208834042
(Accused No.1-
Mohd.Ashfaq )
Cell I.D.No.24243
Mahalaxmi
241. These call detail records data of the exchange of phone calls
between accused No.1-Mohd.Ashfaq, accused No.2-Mohd.Kasim and
accused No.3-Mohd.Salim thus completely supports and corroborates
the evidence of prosecutrix and P.W.19-Krishna. In her statement
recorded at N.M.Joshi Marg Police Station and in her evidence before the
Court also, prosecutrix has deposed that the first person, whom she
identified as accused No.3-Mohd.Salim had given his mobile to second
person, whom she has identified as accused No.2-Mohd Kasim and the
second person i.e. accused No.2-Mohd.Kasim said on phone, maal aala
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aahe, spot pe aa ja phataphat. The call details records produced by P.W.
27-Changdev Godse and P.W.28-Baby John go to prove that on
31/07/2013 at about 20.08 hrs., there was one outgoing call from the
mobile of accused No.3-Mohd.Salim to accused No.1-Mohd.Ashfaq. That
call was of 25 second duration. there is corresponding incoming call on
mobile of accused No.1-Mohd.Ashfaq at the same time. The chart given
by the prosecution disclosing call details between these two accused goes
to provide clinching evidence to that effect.
242. This fact is supported by evidence of P.W.19-Krishna also who
has stated that the first person to whom he has identified as accused No.
3-Mohd.Salim dialed one number on his mobile and given the phone to
second person to whom he has identified as accused No.2-Mohd.Kasim
and the second person i.e. accused No.2-Mohd.Kasim talked on the said
phone, bhai to kidhar hai, spot pe aaja, maal aaya hai, phata phat aaja..
243. Prosecutrix has then deposed that the second person who
raped her, whom she has identified as accused No.1-Mohd.Ashfaq has
made a phone call and said on phone, 'mera kam ho gaya, abhi tu aa ja'
and, thereafter third person, whom she has identified as accused No.2-
Mohd.Kasim had raped her. There is corresponding incoming and
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outgoing call to that effect on the mobiles of accused No.2-Mohd.Kasim
and accused No.1-Mohd.Ashfaq at 20.24 hrs. of 11 seconds only.
244. The Call Detail Records also go to show that during this
entire period from 20.00 hrs. till 20.55 hrs. on the relevant day, all these
three accused were constantly in touch with each other on their
respective mobiles and the Cell IDs goes to reveal that these phone calls
were made from Cell Towers in the area of Mahalaxmi, J.R.Boricha Marg
and E.Moses Road. Needless to say that all these mobiles were very much
therefore, within the range of Mobile Towers which cover the area of
Shakti Mill premises situate at Dr.E.Moses Road.
245. What more clinching evidence is required in the face of this
evidence to prove not only the presence of the accused at the spot but
their being constantly in touch with each other, as deposed by
prosecutrix and P.W.19-Krishna.
246. An attempt is made to challenge these Call Detail Records as
manipulated documents but there is hardly any substance in the defence
raised by the learned Counsels for accused. P.W.27-Changdev Godse and
P.W.28-Baby John are the two Nodal Officers of reputed mobile
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companies who, as per the requisition made by the law enforcing agency,
provided the details of call record and also produced the customer
application forms. Their evidence is supported with the certificate
necessary for issuance of such Call Detail Records. They are totally
independent witnesses, absolutely having no reason to fabricate any
evidence. Moreover, this sort of evidence cannot be fabricated also.
247. The submission made by learned Counsel Shri Gadgil for
accused No.2-Mohd. Kasim that mobiles were planted or that evidence
relating to its recovery is created subsequently on receipt of Call Detail
Record also topples down as, in this case mobiles of accused No.2-
Mohd.Kasim and accused No.3-Mohd.Salim were recovered much in
advance on 25/08/2013 and 29/08/2013 respectively in another C.R.No.
83/2013. Hence no question of planting of mobiles to substantiate Call
Detail Record.
248. About contention that SIM cards of mobile of accused No.1-
Mohd.Ashfaq and accused No.2-Mohd.Kasim are not standing in their
names, the least said is better. Call Detail Records contain IMEI
(International Mobile Equipment Identity) number of each mobile
handset from which call is generated and received. As Nodal Officer P.W.
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27-Changdev Godse has deposed, each mobile handset is having a
unique 15 digit IMEI. The IMEI Nos. of both these three mobile handsets
recovered from accused No.1-Mohd.Ashfaq, accused No.2-Mohd.Kasim
and accused No.3-Mohd.Salim are found reflected in Call Detail Records.
Hence, whether the Sim cards stand in their names or not is totally
immaterial. It is stated by both Nodal Officers, P.W.27-Changdev Godse
and P.W.28-Shri Baby John that call details are recorded automatically
and there is no human intervention. Even the cell sites from which call is
made and call is received are noted automatically. Hence, there is no
scope at all for manipulation of this data.
EVIDENCE OF CRIMINAL CONSPIRACY :
249. As stated above, the evidence of prosecutrix and P.W.19-
Krishna clearly goes to prove the act of accused No.3-Mohd.Salim of
giving his mobile to accused No.2-Mohd Kasim and then Accused No.2-
Mohd.Kasim calling two persons on mobile saying, maal aala aahe, spot
pe aa ja phataphat and then three persons namely accused No.1-
Mohd.Ashfaq, accused No.4-Vijay Jadhav appearing one after another
along with the juvenile-in-conflict-with-law and, thereafter, all the five
accused committing rape on prosecutrix. It leaves no manner of doubt
about their acting in unison and in a preplanned manner.
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250. During the incident accused No.1-Mohd.Ashfaq making
phone call and saying on phone, 'mera kam ho gaya, abhi tu aa ja' and
then accused No.2-Mohd.Kasim coming inside and committing rape on
prosecutrix and lastly the fifth person i.e. juvenile-in-conflict-with-law
coming there and saying, 'kidhar hai, kidhar hai', and the fourth person
i.e. accused No.4-Vijay Jadhav saying 'idhar hai idhar hai aaja' also leads
to no other inference but that of this entire incident happening in
pursuance of the criminal conspiracy hatched between the accused of
being in search of helpless girl entering into the premises and then
subjecting such girl to sexual ravishment. Otherwise there is no
explanation as to how all of a sudden, one after another, three accused
landed there. There is no explanation as to how after accused No.2-
Mohd.Kasim saying on phone given to him by accused No.3-Mohd.Salim,
that maal aala aahe, spot pe aa ja phataphat the other accused landed
there. It constitutes more than sufficient evidence on the point of
conspiracy.
251. It is true, in the complaint (Exh.47) prosecutrix has not
stated about this mobile conversation, however, it is but natural because
she has not gone to Bhandup Police Station to lodge the complaint of
rape but to cancel the Missing Complaint (Exh.45) lodged by her mother.
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The importance of these facts might not have occurred to her at that time
but when her supplementary statement was recorded immediately after
arriving at N.M.Joshi Marg Police Station by P.W.29-P.S.I.Ms.Neetu Tayade,
she has disclosed these facts. Therefore, it cannot be said that she has
made improvement in the course of evidence. Moreover, this evidence is
supported by contemporaneous documents like Call Detail Records,
hence no reason to doubt.
252. As regards conspiracy, law is well settled that as generally
conspiracy is hatched in secrecy, it may be difficult to adduce direct
evidence of the same. As held in the authority of Firozuddin
Basheeruddin and Ors. V State of Kerala, 2001 S.C.C. (Cri) 1341 relied upon
by Spl.P.P., to infer about criminal conspiracy, the prosecution will often
rely on evidence of act of various parties to infer that they were done in
reference to their common intention. Though the offence requires some
kind of physical manifestation of agreement, the law does not require
that the fact of agreement take any particular form and the fact of
agreement may be communicated by words or conduct. Thus, it has
been said that it is unnecessary to prove that the parties 'actually came
together and agreed in terms to pursue the unlawful object, there need
never have an express verbal agreement it being sufficient that there was
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'a tacit understanding between conspirators as to what should be done.
253. Hence, just as the proof of pudding lies in its eating, similarly
the proof of conspiracy lies in commission of various acts by the accused
during the course of incident. In this case, the participation and
involvement of each of the accused in the act of committing gang rape on
prosecutrix, being in touch with each other constantly on mobile, calling
other accused on mobile and then their acting in unison, sufficiently
establishes that the entire incident was executed in pursuance of
criminal conspiracy hatched by them with their juvenile associate.
DEFENCE OF CONCOCTION OF FALSE CASE BY POLICE DUE TO
PRESSURE FROM SENIORS AND MEDIA:
254. Though much hue and cry is made by defence Counsels to
contend that this is totally a false and concocted case prepared by the
police machinery and prosecution under the pressure of their superiors
and Media, in the face of this daunting evidence this contention has to be
rejected outrightly. Again though in the dramatic words of learned
Counsel Shri Gadgil, the entire screen play was ready, only the artists
were to cast which was done by police and prosecution, this defence also
does not stand to reason. It is against our social fabric and human
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psychology that any girl, that too like prosecutrix, will come forward to
make such allegations against her own chastity and honour just because
pressurized by the police or police acting under Media pressure. It just
revolts against the common sense. As observed by the Apex Court in
Bharwada Bhoginbhai Hirjibhai V State of Gujarat, AIR 1983 SC 753,
rarely a girl or woman will make the false allegation of sexual assault on
account of any such factor. She will not allow her reputation to be put at
stake or her reputation to be maligned in Police or Court or in Media or
public in general. She will protect it as preciously and as good as her life.
255. Especially, a girl like the prosecutrix in the instant case who
was already engaged to P.W.19-Krishna and her mother has approved
their marriage proposal, in such situation, it is not possible to accept that
she would make accusation that five persons sexually ravished her in the
presence of her fiancee P.W.19-Krishna. It is as good as spoiling the
prospect of her marriage at her own hands. Even if she had dared to do
so, her mother or fiancee would have dissuaded her from doing so. Here
both of them are standing like rock behind her. One must appreciate the
conduct of P.W.19-Krishna who has extended her support in every way.
256. The attack made on the conduct of Krishna by defence
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Counsels that when his legs were not tied, why he did not run away from
the spot is again unacceptable on twofold grounds. In the first place, as
held in State of U.P. V Devendra Singh 2005 S.C.C.(Cri) 582, relied upon by
Spl.P.P.,
To discard the evidence of a witness on the ground that he
did not react in any particular manner is to appreciate
evidence in a wholly unrealistic and unimaginative way.
There is no set rule of natural reaction. Human behavious
varies from person to person. Different people behave and
react differently in different situations. Human behaviour
depends upon the facts and circumstances of each given
case. How a person would react and behave in a particular
situation can never be predicted. Every person who
witnesses a serious crime reacts in his own way. Some are
stunned, become speechless and stand rooted to the spot.
Some become hysteric and start wailing. Some start shouting
for help. Others run away to keep themselves as far removed
from the spot as possible. Yet others rush to the rescue of the
victim, even going to the extent of counterattacking the
assailants. Some may remain tightlipped, overawed either on
account of the antecedents of the assailant or threats given
by him. Each one reacts in his special way even in similar
circumstances, leave alone, the varying nature depending
upon a variety of circumstances.
Herein the case witness Krishna is a young lad of 20 years age. Accused
were five in numbers who have already used criminal force against him.
Hence, when there were five accused persons, can he be in a position to
resist or run away, even if he wanted to? The answer is obviously 'no'.
257. Secondly and most importantly, he is also not proved to be a
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person who will run away leaving her girlfriend in trouble, alone. In the
witness box also he has reiterated his resolve to marry her. He remained
with her in the moment of crisis. He has taken her to village of his friend,
took her to doctor, stayed there for one month and only when, she was
little bit recovered, brought her in Mumbai and went to Bhandup Police
Station. During the entire investigation and trial process, he has stood by
her side, which fact goes to his credit.
258 Therefore instead of appreciating the conduct of young lad
like Krishna who deserves to be patted on his back for being with her and
coming forward to give evidence, asking him why he did not run away or
giving him suggestion that he is deposing falsely against his own
prospective wife rebels against the common sense. Can it be believed
that he and prosecutrix were not aware of the consequences of lodging
such complaint. Not only both of them are bound to feel extremely
embarrassed in relating to the incident but they must be aware of the
social stigma attached to such offences. They must be aware that lodging
of such complaint will inevitably result in mental torture and suffering to
them. Several questions were likely to be raised and are actually raised as
to why they went to that place in the night alone. Several attacks were
likely to be made as to P.W.19-Krishna and his friends themselves
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subjecting the prosecutrix to sexual assault. Such attack was actually
made by defence also but if it was so, then why the prosecutrix will
implicate the accused falsely? Both of them had to face the interrogation
by the investigating agency, by the defence Counsels in the cross
examination and have also faced the risk of being disbelieved which
generally act as different. If despite all these odds, they have come
forward to support their case then it is a guarantee of truthfulness. In
such situation, why their evidence should be disbelieved or viewed with
aid of spectacles fitted with lenses tinged with doubt, disbelief and
suspicion. Hence it is thoroughly outlandish to advance the arguments
that due to Media pressure or due to senior police officer's pressure, this
case is concocted.
259. Moreover, what was the reason for police also to concoct
such case or of acting under any pressure, when earlier offence registered
in respect of the incident dtd.22/08/2013 was detected by them promptly,
the accused were also arrested in that case. In view of successful
detection of said C.R., concocting another crime in the same premises of
Shakti Mill, was on the contrary, likely to, affect their efficiency in
preventing the offences taking place and certainly they will not do so.
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SUMING UP:
260. In this case, the sole testimony of the prosecutrix ITSELF is
sufficient to clinch the guilt of the accused. It is also supported by the
evidence of P.W.19-Krishna and her mother. Further in the light of
recovery of the incriminating articles from the spot and the recovery of
mobiles at the instance of the accused and clinching evidence of Call
Detail Records of the mobiles of the accused, the argument by defence
Counsels that prosecution has not proved its case beyond doubt can
hardly be accepted. The alleged defects in the prosecution case like non
recording of the statement of Dr.Nigam from Dohatra, not collecting
footage of CCTV at Railway Station or P.W.22-P.S.I. Baravkar not taking
Missing Complaint (Exh.45) with him when he went to N.M.Joshi Marg
Police Station are too minor in the broad conspectus of the entire
prosecution case. Moreover, defective investigation or negligence of
Investigating Officer, even if it is so, it does not affect credibility of the
evidence of the prosecution witnesses. There is ample case law on the
said aspect like Dhanaj Singh alias Shera and Ors. V. State of Punjab, 2004
S.C.C.(Cri) 851 and C.Muniappan and Ors. V State of Tamilnadu (2010) 3
S.C.C. (Cri) 1402 wherein it is categorically held,
If primacy is given to such designed or negligent
investigation, to the omissions or lapses by perfunctory
investigation, the faith and confidence of the people would
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be shaken, not only in the law-enforcing agency but also in
the administration of justice as doing so would tantamount
to playing into the hands of the Investigating Officer.
Therefore, the alleged defects in the investigation which do not go to the
root of the matter and do not affect the core of substratum of
prosecution case have absolutely no impact on the outcome of the case.
261. As regards the plea of the defence Counsels that case is not
proved beyond doubt, it need not be stated that benefit of only
'reasonable doubt' is to be given to the accused and not of 'any doubt' in
the nature of surmises, conjectures, guesses, assumptions and
presumptions. As held by the Apex Court in Inder Singh V State (Delhi
Admn.) AIR 1978 S.C. 1091,
Proof beyond reasonable doubt is a guideline, not a fetish
and guilty man cannot get away with it because truth suffers
some infirmity, when projected through human processes.
262. Thus, after assessing the entire evidence on record in a most
dispassionate manner and also at the same time taking realistic and
sensitive view, which this case requires and deserves, this Court has come
to an unmistakable conclusion that the prosecution has succeeded in
proving its case against all the four accused on all the charges framed
against them beyond any shadow of reasonable doubt. Therefore, I hold
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them guilty and at this stage stop my dictation in order to hear the
accused and prosecution on the question of sentence proposed to be
passed against them.
263. Before parting with the judgment, this Court would like to
place on record certain disturbing features of medical examination of
rape victim and of conduct of test identification parade, like in this case,
the doctor at J.J.Group of Hospital has still followed the degrading and
unscientific archaic 'two finger test' in examination of prosecutrix though
the Supreme Court, in the case of Lillu @ Rajesh and Anr. V State of
Haryana, MANU/SC/0369/2013, has taken serious note of it and condemn
it by observing in para Nos.12 and 13 that,
In view of International Covenant on Economic, Social, and
Cultural Rights 1966;United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power
1985, rape survivors are entitled to legal recourse that does
not retraumatize them or violate their physical or mental
integrity and dignity. They are also entitled to medical
procedures conducted in a manner that respects their right
to consent. Medical procedures should not be carried out in
a manner that constitutes cruel, inhuman, or degrading
treatment and health should be of paramount consideration
while dealing with gender-based violence. The State is under
an obligation to make such services available to survivors of
sexual violence. Proper measures should be taken to ensure
their safety and there should be no arbitrary or unlawful
interference with his privacy.
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Thus, in view of the above, undoubtedly, the two finger
test and its interpretation violates the right of rape survivors
to privacy, physical and mental integrity and dignity.
Government of Maharashtra has also come out with new guidelines and
protocols on 10th of May of last year. These new guidelines and protocols
have done aware with unscientific and heavily criticized 'two finger test'.
The need is for the proper implementation of these guidelines.
264. In respect of test identification parade also, asking the victim
of rape to identify the suspect face to face by pointing finger to him
totally overlooks the mental trauma of the victim of rape. One can
imagine the situation where the victim is brought face to face with rapist
to identify with him, that too within few days after she has faced the
tremendous trauma in the brutal incident. It is therefore necessary to
introduce the facility of conduct of test identification parade by video link
so that the trauma of coming face to face with the accused can be
avoided.
(Dr.Mrs.Shalini S. Phansalkar-Joshi)
Principal Judge, Bombay City Civil Court
& Sessions Judge, Gr.Bombay.
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265. On the question of sentence, it is submitted by Spl.P.P. Shri
Ujjwal Nikam that considering the serious offences which are proved
against the accused like the offence under Section 376(D) of I.P.C. which
provides for the maximum punishment of life imprisonment which shall
mean imprisonment for the remainder of that person's natural life, it
would be necessary for this Court to give ample opportunity to both, the
prosecution and also the accused to make submissions on the quantum
of sentence.
266. In this respect, he has relied upon the two authorities of Apex
Court that of Anshad and Ors. V State of Karnataka 1994 S.C.C. (Cri) 1204
and Allauddin Mian and Ors. V State of Bihar 1989 S.C.C.(Cri) 490 wherein
Apex Court in para 10 of its judgment has considered the provisions of
235(2) of Cr.P.C. and laid down that these provisions are required to be
followed in the spirit and not as a mere formality. In the words of the
Apex Court, The sentencing court must approach the question seriously
and must endeavour to see that all the relevant facts and circumstances
bearing on the question of sentence are brought on record. It was
further held that, Only after giving due weight to the mitigating as well as
the aggravating circumstances placed before it, it must pronounce the
sentence.
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267. The Apex Court has in this authority laid down a general rule
that, The trial courts should after recording the conviction adjourn the
matter to a future date and call upon both the prosecution as well as the
defence to place the relevant material bearing on the question of
sentence before it and thereafter pronounce the sentence to be imposed
on the offender. This general rule was laid down by Apex Court
considering the fact that on the pronouncement of holding the accused
guilty, accused may be in a state of shock and may not be in a position to
advance the submission on the very day itself.
268. The defence Counsels have also submitted that it would be
proper, if the matter is adjourned till next date so that, both the
prosecution and defence can get sufficient opportunity to bring facts and
circumstances on record which may have bearing on the quantum of
sentence. In view thereof, pronouncement of sentence is reserved till
tomorrow i.e. 21/03/2014 in order to hear the prosecution and accused
on the point of sentence.
(Dr.Mrs.Shalini S. Phansalkar-Joshi)
20.3.2014 Principal Judge, Bombay City Civil Court
& Sessions Judge, Gr.Bombay.
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269. As regards the question of sentence, I have heard all the
accused in person. Accused No.1-Mohd.Ashfaq has submitted that his
age is only 24 years. He is having wife and two small children aged 6 and
4 years. He hails from a slum area and his native place is Bihar. After the
incident, society has, as good as boycotted his family. There is no other
earning member in his family and, therefore, by taking lenient view,
minimum punishment be imposed.
270. Accused No.2-Mohd.Kasim has also submitted that his old
mother, sister and two small brothers are dependent upon him. There is
no other earning member in the family and if he is sentenced for life, his
family will come on the street. He has also requested the Court to take a
lenient view.
271. Accused No.3-Mohd.Salim has also submitted that his old
mother of 70 years and handicapped sister are dependent upon him.
There is no one else to look after his family and, therefore, it requires that
this Court should take lenient view.
272. Similar submissions are advanced by accused No.4-Vijay also
that at the time of incident, he was hardly 19 years of age. His mother is
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dependent upon him. There is no one to look after him and, therefore,
his case is also required to be considered sympathetically.
273. Learned Counsel for accused No.1 Shri Salsingikar has
submitted that accused deserves an opportunity to reform himself.
According to him, the offence which is held to be proved cannot be called
as heinous one. It also cannot be called as brutal one as there were no
injuries found on the body of the prosecutrix. He has also submitted that
having regard to the facts of the case and social conditions from which
accused No.1 hails, this Court should adopt lenient view and the
minimum punishment which is prescribed for offence punishable under
Section 376(D) i.e. imprisonment of 20 years will meet the ends of justice.
274. Learned Counsel for accused No.2 Shri Gadgil has also
advanced the submission that accused should be given an opportunity
to reform himself. According to him, punishment should be such that it
will help the accused to reform and rehabilitate. Especially having regard
to the family background of the accused, he has urged that Court should
take lenient view as requested by the accused.
275. Learned Counsel for accused No.3 Shri Moin Khan has also
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persuaded the Court to ensure that the doors of the reforms should not
be closed completely. Accused should be given an opportunity for his
reformation. According to him, if the accused is guilty of the offence, he
is also at the same time the victim of system. He is living in the slum area
where there is no facility of education and conducive environment
According to him, mind of any person may get deviated because of the
pornographic clips which are easily available on the Internet and, hence,
he has also advanced the submissions that the case justifies minimum
sentence. To substantiate his submission, he has submitted that there
are two statutes on the magnificent building of the Bombay High Court,
one that of statute of Justice and another that of Mercy, which implies
that justice should be tampered with mercy.
276. Learned Counsel for accused No.4 Shri Chavan has also
advanced the same submissions by pointing out that the accused was
only of the age of 19 years at the time of incident and the Court cannot
ignore that accused is also entitled to live the life with dignity. He has
also submitted that Court cannot ignore the social conditions in which
he became criminal. He has also posed the question that even if harsh
sentence is imposed, whether the incidents of rape will stop? Hence,
according to him also, the case of accused No.4 deserves to be looked at
180
with sympathy and leniency.
277. Per contra, Spl.P.P. Shri Ujjwal Nikam has strongly opposed
this plea of taking a lenient view, on several grounds. In the first place, he
has submitted that this Court has only two options of sentence, one that
of is imprisonment of minimum 20 years and the maximum is
imprisonment for life which extend to the remainder natural life of that
person. According to him, the Apex Court and the High Courts have also
taken a serious view towards the offence of rape and it is held time and
again that these offences are required to be dealt with very sternly.
278. To substantiate his submissions, he has relied upon the three
authorities of Apex Court, first is that of State of Andhra Pradesh V Bodem
Sundra Rao, AIR 1996 S.C. 530 wherein the Apex Court has taken note of
the fact that, in recent years, crimes against women are on the rise.
According to Apex Court, these crimes are affront to the human dignity of
the society. Hence, imposition of grossly inadequate sentence and
particularly against the mandate of the Legislature is not only an injustice
to the victim of the crime but also to the society as a whole as it also
encourages the criminals. The Apex Court has therefore held that the
Courts have an obligation while awarding punishment to respond to the
181
public abhorence of crime which needs reflection through the Court's
verdict in the measure of punishment. It was further observed by the
Apex Court that, the Courts must not only keep in view the rights of the
criminal but also the rights of the victim of crime and the society at large
while considering imposition of the appropriate punishment.
279. He has further relied on the authority of State of Karnataka V
Krishnappa 2000 S.C.C.(Cri) 755 wherein also the Apex Court has held
that, even if the Court is having discretion in the field of sentencing,
Court has to exercise that discretion properly. The Court cannot justify
the reduction of the sentence on the ground that the accused was
unsophisticated and illiterate citizen belonging to a weaker section of
the society or that he was a chronic addict to drinking or his family
comprises of an old mother, wife and children who are dependent upon
him. The Apex Court has reiterated that, the measurement of
punishment in a case of rape cannot depend upon the social status of the
victim or the accused. It must depend upon the conduct of the accused,
the state and age of the sexually assaulted female and the gravity of the
criminal act. In the words of the Apex Court,
Crimes of violence upon women need to be severely dealt
with. The socio-economic status, religion, race, caste or
creed of the accused or the victim are irrelevant
182
considerations in sentencing policy. Protection of society
and deterring the criminal is the avowed object of law and
that is required to be achieved by imposing an appropriate
sentence. Courts must hear the loud cry for justice by the
society in cases of the heinous crime of rape on innocent
helpless girls of tender years and respond by imposition of
proper sentence.
In this authority also, the Apex Court has again stated that public
abhorrence of crime needs reflection through imposition of appropriate
sentence by the Court.
280. Lastly Spl.P.P. has relied upon the authority of Jugendra Singh
V State of U.P. (2012) 6 S.C.C. 297 where again the Apex Court has pointed
out the gravity of the offence of rape, by observing that, rape or an
attempt to rape is a crime not against an individual but a crime which
destroys the basic equilibrium of the social atmosphere. It is to be kept in
mind that an offence against the body of a woman lowers her dignity and
mars her reputation. Ones physical frame is his or her temple. No one
has any right of encroachment. An attempt for the momentary pleasure
of the accused should not come into the way in protecting the rights of
the victim. When a victim suffers in such a manner, the society as a whole
is compelled to suffer as it creates an incurable dent in the fabric of the
social milieu and hence, the cry of the collective has to be answered and
respected while imposing the sentence of punishment.
183
281. Though learned Counsels for accused have pointed out that
in all these three authorities, the facts were different and the Court has
dealt with the aspect of imposing the punishment less than minimum,
whereas in this case, they are not asking for the punishment less than
minimum, hence, these authorities are not applicable. However, even if
the facts of the authorities are different, this Court cannot ignore the law
laid down therein by the Apex Court that crime against women will have
to be dealt with sternly, considering the gravity of the offence. That is
also the intention of the Legislature when it has amended the Criminal
Law and prescribed minimum sentence of imprisonment for twenty
years and maximum sentence for life imprisonment, which shall mean
remainder of that person's natural life.
282. In this respect, learned Spl.P.P. has pointed out in all five
aggravating circumstances which according to him justify the maximum
punishment provided for the said offence. He has submitted that Court
cannot forget the factual backdrop of the case that prosecutrix and her
prospective husband on that fateful day were going to Mahalaxmi Temple
to offer prayers as prosecutix's mother had given approval to their
marriage proposal and as they were not knowing the topography of the
Mahalaxmi Temple, on the information given by the passers-by, they
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adopted shortest route for reaching to Mahalaxmi Temple and this
incident had occurred.
283. He has submitted that prosecutrix was already injured but
despite that, she was mercilessly dragged. The depravity of the accused,
he has pointed out, by submitting that accused No.2-Mohd.Kasim called
another person on mobile by saying, maal aala aahe, spot pe aaja phata
phat. According to him, these words imply that the accused are looking
at the woman or helpless girl as a property or the object to be enjoyed
and thrown away.
284. Further he has submitted that the manner of commission of
the offence was such that there are no words to describe. Accused No.1
has committed vaginal and oral sex. Whereas accused No.2 has
committed in addition to anal sex also. Accused No.3 raped the
prosecutrix twice and also committed oral sex with her. Accused No.4
has also subjected her to forcible sexual intercourse. He has urged that
these offences therefore cannot be less inhuman or brutal. They have
reduced the victim to a vegetative state of mind. He has pointed out that
the Medical Certificate proved through the evidence of P.W.24-Dr.Maithili
Umate shows that prosecutrix was suffering from 'Acute Post Traumatic
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Stress Disorder'. In evidence before the court also, she was all the while
weeping and has expressed her anguish which discloses her state of mind
and her natural reaction to beat the accused. He has submitted that one
cannot be kind to those people who are unkind to others. Learned Spl.P.P.
has also pointed out the order of conviction of accused No.1-
Mohd.Ashfaq for offence under Section 3 of the Protection of Railway
Property Act, which according to him, reflects and indicates the criminal
tendency of accused. Lastly, he has submitted that the honour of the
woman is our proud heritage and every attempt should be made by the
Courts to protect the said honour by imposing the punishment which
can send the proper signal to the society.
285. I have given my thoughtful consideration to the submissions
advanced by learned Counsels by the accused and also by learned Spl.P.P.
286. Needless to say that the offence of rape is a very serious and
brutal crime. It is not only an offence against victim but also the crime
against the society as such. It is violative of victim's fundamental right to
live life with dignity and liberty guaranteed under Article 21 of the
Constitution. The violation of these Constitutionally cherished
fundamental rights is also required to be kept in mind while awarding
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punishment to the accused, coupled with the fact that offence of rape
inflicts an untold trauma and agony to the victim with which she has to
live throughout her life.
287. The anguish which the prosecutrix in this case has expressed
and felt is appearing throughout the record of case and also throughout
her testimony. It can hardly be said that the manner in which the offence
was committed by subjecting her both to natural and unnatural sex is not
brutal. The Court has also to consider the fact that the accused have not
committed this offence being overpowered by lust but it is an offence
which was premeditated and outcome of the criminal conspiracy, as is
proved that of initially only two accused arriving on the spot and then
calling others on phone. All of them have sexually ravished the
prosecutrix and reduced her to a vegetative state which is really pathetic.
288. This Court, therefore, as held in all these authorities have to
respond to the crime and also to the public abhorrence through the
imposition of appropriate sentence commensurate with the gravity of
such incident.
289. It may be true that there are circumstances like the age of the
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accused, their family dependency and also their submission that the
system, on account of which, they have turned into the criminals, if they
are proved to be so. But then the same system does not make everyone
the criminal. It is individual only responsible for the way, he conducts
himself. We can have several instances where individuals coming from
lower and poor strata of society have achieved the success. Therefore the
society or system or anything as such cannot be blamed thoroughly. We
have to consider that, as observed by the Apex Court, all these aspects are
irrelevant when the offence committed is of rape which calls for the
punishment as prescribed.
290. It is pertinent to note that now the Legislature has also done
away the Proviso which was initially appearing in Section 376(2) of I.P.C.
where the Court can impose less than minimum punishment, if sufficient
and adequate grounds were made out. Now the Courts are not left with
that discretion. The Court has only two options, minimum or maximum.
Herein the case, if all the facts which are discussed at length are looked
into then it is necessary to take a stern view so that proper message will
be sent to the society. Even if the accused are not reformed, atleast, other
persons who are at verge or having criminal tendency will be deterred
from doing so. As per Criminal Jurisprudence or Penology, the object of
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punishment is both, reforming accused and at the same time deterring
others from committing such offences. In the offence of rape, the Court
should take sword of deterrence. Whereas mercy can be shown in some
cases, if justified. But in this case, if the mercy is shown it will be
misplaced. If a lenient view is taken, it will be also the mockery of justice,
as observed by the Apex Court.
291. Having regard to the broad spectrum and canvass of the case,
a stern view of imposing maximum punishment has to be taken because
imposing minimum punishment will go to indicate that the Court has
taken the lenient view of the matter.
292. Having considered the entire facts in their proper
perspective, this Court proceed to pass the following order.
: O R D E R :
1. Accused No.1- Mohd.Ashfaq Dawood Shaikh @ Baba,
accused No.2- Mohd. Kasim Mohd. Hasim Shaikh @ Bangali, accused No.
3-Mohd. Salim Mohd.Abdul Kaddus Ansari and accused No.4-Vijay
Mohan Jadhav @ Nanu are convicted as per section 235(2) of Cr.P.C. for
the offence punishable under section 376(D) r/w 120-B of IPC and
sentenced to suffer Rigorous Imprisonment for life each, which shall
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mean the imprisonment of remainder of their natural life and to pay
fine of Rs.10,000/- (Rs.Ten Thousand only) each, in default R.I. for 1
(one) year each.
2. Accused Nos.1 to 4 are further convicted as per section 235(2)
of Cr.P.C. for the offence punishable under Section 377 r/w 120-B of IPC
and sentenced to suffer Rigorous Imprisonment for 10 (Ten) years each
and to pay fine of Rs.5,000/- (Rs.Five Thousand only) each, in default
R.I. for 1(One) year each.
3. Accused Nos.1 to 4 are further convicted as per section 235(2)
of Cr.P.C. for the offence punishable under Section 354(B) r/w 120-B of
IPC and sentenced to suffer Rigorous Imprisonment for 5 (five) years
each, and to pay fine of Rs.3,000/- (Rs.Three Thousand only)each, in
default R.I. for 6 (Six) months each.
4. Accused Nos.1 to 4 are further convicted as per section 235(2)
of Cr.P.C. for the offence punishable under Section 323 r/w 120-B of IPC
and sentenced to suffer Rigorous Imprisonment for 1 (One) year each,
and to pay fine of Rs.1,000/- (Rs.One Thousand only) each, in default
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R.I. for 3(Three) months each.
5. Accused Nos.1 to 4 are further convicted as per section 235(2)
of Cr.P.C. for the offences punishable under Section 341 and 342 r/w 120-
B of IPC and sentenced to suffer Rigorous Imprisonment for 1 (One)
year each and to pay fine of Rs.1,000/- (Rs.One Thousand only) each,
in default R.I. for 3 (Three) months each.
6. Accused Nos.1 to 4 are further convicted as per section 235(2)
of Cr.P.C. for the offence punishable under Section 506(II) r/w 120-B of
IPC and sentenced to suffer Rigorous Imprisonment for 5 (Five) years
each, and to pay fine of Rs.1,000/- (Rs.One Thousand only) each, in
default R.I. for 3(Three) months each.
7. Accused Nos.1 to 4 are further convicted as per section 235(2)
of Cr.P.C. for the offence punishable under Section 120-B of IPC and
sentenced to suffer Rigorous Imprisonment for life each.
8. All the substantive sentences of imprisonment of all the
accused to run concurrently.
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9. As per the proviso laid down under Section 376(D) of IPC, the
entire fine amount, if recovered, shall be paid to the prosecutrix to meet
the medical expenses and rehabilitation of the prosecutrix, after appeal
period is over.
10. All the accused are in jail, hence they are entitled for set off
under Section 428 of Cr.P.C. for the period already undergone in jail for
the punishments of other offences except for punishment under Section
376(D) as it implies that life imprisonment shall mean the imprisonment
for remainder of their life.
11. As regards Muddemal Property, it shall be required for the
case in respect of juvenile-in-conflict-with-law, hence, it may be
preserved till the decision of that case and thereafter, it being worthless
be destroyed except for mobiles of accused (Muddemal Article Nos.11, 12,
13 and 20) and cash amount of Rs.1,550/- (Muddemal Article No.15), cash
of Rs.300/-(Muddemal Article No.21) which may be confiscated to State,
after appeal period is over.
12. Issuance of certified copy of Judgment is expedited.
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13. Sessions Case No.914/2013 stands disposed of accordingly.
(Dr.Mrs.Shalini S. Phansalkar-Joshi)
21.3.2014 Principal Judge, Bombay City Civil Court
& Sessions Judge, Gr.Bombay.
Dictation started on : 12.3.2014 onwards
Transcription started on : 13.3.2014 onwards
Signed on : 21.3.2014