Haresh Mahadeo Kamble And Etc. ... vs State Of Maharashtra
2001 Latest Caselaw 499 Bom

JUDGMENT

D.G. Deshpande, J.

1. In all seven accused faced prosecution before the Additional Sessions Judge, Thane, for the offence of gang rape in Sessions Case No. 223 of 1994. Out of them, accused No. 7 Ganesh Babu Jadhav was acquitted of all the charges and rest of the six accused were convicted and these six appeals have been filed by six accused i.e. accused Nos. 1 to 6 respectively.

2. We heard elaborate, detailed and exhaustive arguments of Mr. Mundargi and Mr. Chitnis learned advocates for the accused and the learned APP Ms. Usha Kejriwal. The case which the accused were required to face was as under :

3. The victim in this case is Rambha Tukaram Pattekar, a girl aged about 15 years. Rambha was originally resident of Bhalivali in Parner Tuluka, Dist. Ahmednagar. Her father Tukaram was not doing any work and was also addicted to liquor and therefore she came to Shantabai her patnernal aunt who was residing at Goregaon, Mumbai.

4. Shantabai was residing in Zopadpatti at Goregaon with her son Raju and daughter Lata. Initially Rambha was doing domestic work but thereafter Shantabai wanted Rambha to learn dancing and give her performance and earn money which was being done by Lata. Rambha joined dancing classes Santacruz. She attended those classes for two months but did not continue the career as she did not like the atmosphere in the dancing classes.

5. Shantabai did not like this decision of Rambha, there were quarries between them on these counts and therefore, on the day of the incident Rambha decided to leave the house of Shantabai. She packed her garments etc. in a suit-case and left the house without intimation to Shantabai. She was not knowing the details of the city and she reached Punamnagar for taking shelter, she kept her suit-case hidden in a bush and stayed by the side of the wall for the whole night. In the morning however, she found that her suit-case was not at the place and since she was left with no alternative she returned to the house of Shantabai. Naturally, Shantabai accosted her as to why Rambha left the house without intimating her and why she stayed out of the house. Shantabai did not accept the explanation of Rambha and immediately ordered Rambha to leave her house.

6. Thereafter, Rambha went to Parle Railway Station. She was without food for the whole day. She met one unknown girl Manisha at Parle Railway station. Manisha told her that she was also in search of a job and therefore took Rambha to Thane by local. However, on some pretext Manisha deserted Rambha and Rambha was left alone at the Railway Station.

7. On the platform some boys of some unknown strangers tried to misbehave with her or tease her. Rambha was disturbed and annoyed. She therefore at by the side of the boot polishwala on the platform. This boy offered her tea and then Rambha narrated her agony to him and that she wanted to go to Goregaon. She also told him that she had no money for purchasing ticket. The tender aged boy taking sympathy on Rambha showed his willingness to purchase the ticket. In the meantime it is alleged that one of the accused Mahesh who was subsequently identified as Haresh came and sat by the side of boot polishwala. He had some talk with Rambha and by the time boot polishwala boy came back with the ticket. Rambha and Mahesh alias Haresh left the spot.

8. It is alleged that this was evening time and Mahesh alias Haresh took Rambha to the other side of Thane Railway Station and while on way he also tried to tease Rambha. Rambha did not like this misbehaviour. She protested but Mahesh alias Haresh beat her on her mouth, lips and gave fist blows on abdomen and threatened her not to shout at all. He also alleged to have given her proposal of Rs. 5,000/- to allow him to enjoy her body. The offer was flatly turned down by Rambha. However, because of the threats, darkness and due to loneliness she could not shout.

9. Thereafter, it is alleged that Mahesh alias Haresh dragged her from that place to a place near 'B' Cabin. Mahesh dragged her by catching her hand and when she was taken to secluded place she was forced to remove her clothes and then he committed forcible sexual intercourse with her. Again, from this place Mahesh alias Haresh removed Rambha to another secluded place nearby. Again, there was sexual assault on her and in the meantime 5-6 boys came there. They saw all the scene and they also joined Mahesh alias Haresh in committing rape of Rambha, in spite of her protest and apostolic opposition. After the gang rape ravished in the darkness somebody focussed a torch and Rambha woke up. She found in completely ruined and disgusted position. She lost all her hopes and in this background therefore decided to commit suicide by jumping before a running train. However, the train dashed her resulting in cutting her leg.

10. Thereafter, the motorman of the local train under which Rambha's leg was cut, applied emergency brakes, he found Rambha was in an injured condition and thereafter Railway police removed her to Thane Civil Hospital for treatment.

11. This is in short the sum and substance of the prosecution case. The rape having been taken place between 7.30 to 8.30 p.m. on 16-11-1993. In the hospital Rambha narrated the incident to a nurse Mrs. Jahida. Information was given to the Railway Police about the accident as well as also the rape. Police Officer rushed to Thane Civil Hospital and they recorded her statement i.e. FIR in the hospital wherein Rambha gave all the details.

12. During the investigation accused were arrested. Panchnama of the scene of offence was made. Statement of witnesses recorded, clothes of the accused were seized and since the clothes were having blood stains and semen stain, they were sent to the C.A. along with the clothes of Rambha. Sample of soil was also collected from the spot. So also blood and semen stains etc. were collected. All the accused were sent to medical examination as all of them had injuries on their body. After completing the investigation, charge sheet was filed. Evidence was recorded and the accused came to be convicted as stated above. Accused No. 1 Haresh alias Mahesh was convicted under Sections 376(2)(g) and 323 of the Indian Penal Code and sentenced to suffer imprisonment for life and sentence of one year under Section 323. Other accuse Nos. 1 to 6 were also found guilty under Section 376(2)(g) of the Indian Penal Code and were sentenced to imprisonment for life. Fine was also imposed on all the accused and Rs. 20,000/- was ordered to be paid to Rambha if at all the accused paid the fine.

13. Mr. Chitnis and Mr. Mundargi attacked the prosecution case on all the counts. Firstly, according to them the entire case was an outcome of concoction and falsifiction. Secondly, FIR which was exhibited during the trial was not and could not be considered as FIR. Thirdly, the actual FIR which was recorded in the station diary did not contend the names or description of the accused. Fourthly, the accused were shown to Rambha before her statement was recorded by the police or her FIR was recorded, that no identification parade was held for that purpose in the hospital, nor any document or memo was created that the identification parade held subsequently before the SEM was merely a farce because accused were already shown to Rambha. Rambha failed to identify the accused in the Court and there were considerable improvements in the story of Rambha so also contradictions and omissions and since the entire case of the prosecution rested on identification and since Rambha was not knowing any of the accused, the case of the prosecution was liable to be disbelieved and disregarded in its entirety and the accused were entitled for acquittal.

14. Both Mr. Chitnis and Mr. Mundargi contended that even the medical evidence that was collected by the police during investigation including that of recovery of blood stained clothes of the accused or the injury on the person of the accused was not sufficient to hold the accused guilty for offence charged. So far as accused No. 1 Mahesh alias Haresh is concerned, it was argued by Mr. Chitnis that admittedly Rambha was not knowning Mahesh prior to the incident and even if the evidence of boot polishwala boy is accepted, hardly for 5-10 minutes it is impossible to believe that a girl like Rambha woud agree to go with stranger by reposing confidence in her in that short duration of 5-10 minutes and therefore according to Mr. Chitnis Rambha's case even against Haresh alias Mahesh was liable to be rejected for all the aforesaid reasons including the false identification or wrong identification.

15. Both Mr. Chitnis and Mr. Mundargi learned advocates pointed out that the prosecution case was not consistent and was suspicious regarding the state of mind of Rambha that is as to whether she was conscious or unconscious, whether she was in a fit position to identify the accused in the hospital. There were infirmaties in the investigation and circumstances for which no satisfactory explanation was forthcoming and therefore for all these reasons the accused were entitled for acquittal.

16. On the other hand it was contended by the learned APP that looking to the mental, financial and physical condition of Rambha and particularly her plight on that day when she was driven out of the house without even food or single rupee with her, she had no reason to falsely implicate the accused whom she was not knowing at all. Learned APP contended that the circumstances in which Rambha was placed and narrated by her, it was natural for her to believe any one and every one who was giving any valid and good offer for support or for to take her to Goregaon. The learned APP contended that the case of the prosecution was strongly supported by the evidence of the two boot polishwala boys at Thane Railway Station who in spite of their being themselves self earners at their tender age, took sympathy on Rambha, showed willingness to assist her, actually helped her by offering tea and going for purchasing ticket for her from Thane to Goregaon. Therefore, according to her, this evidence of the boot polishwala coupled with the evidence of Rambha directly connects accused No. 1, who was the first to commit rape upon her. The learned APP strongly repelled the faint suggestion coming from the defence that this was a case of sexual intercourse with consent. She contended that no girl would allow herself to become an object in the hand of the gang of 6-7 persons for being enjoyed at a dirty place near public urinal or latrine by the said Cabin 'B' on Thane Railway Station.

17. The learned APP further contended that there was absolutely no infirmity in the prosecution case nor any lacuna in the investigation and looking to the condition of Rambha where her leg was required to be amputed, it was impossible to hold any indentification parade for at least a month and more and therefore, there was no wrong committed by the police in showing the accused to her while she was in the hospital.

18. So far as attack of the defence on FIR is concerned, learned APP contended that the document which is exhibited as FIR was required to be accepted because it is only after Rambha gave full narration of the incident, police came to know about the incident. The entries in the station diary upon which reliance was placed by the accused for this purpose were of no avail to the accused and could not be used as a weapon to destroy the prosecution case.

19. In addition to the above submissions, the learned APP submitted that fact that all the six convicted accused had injuries on their person immediately after their arrest and for which no explanation whatsoever was forthcoming from them, was a strong circumstance indicating against accused, all those injuries, their nature and their location, suggestion and supported the prosecution case that injuries were caused during the forcible sexual assault on Rambha. She also pointed out that all the clothes recoverd from the persons of the accused immediately after their arrest were smeared with mud and Chemical Analyser's opinion that the mud or soil found on the clothes of the accused was identical with the samples of soil collected during the panchnama. She also pointed out that there were blood stains or semen stains on some of the accused for which no explanation was given. Therefore, according to her even if the identification parade subsequently held by the SEM was not accepted by the Court, this evidence was clinching and sufficient to uphold the conviction.

20. We have given our anxious consideration to the submissions made by the learned advocates for the accused as well as the learned APR We would now deal with the respective submissions.

21. Since the bone of contention of attack or the defence was about FIR it will be necessary to consider that aspect, at the outset Rambha was examined by the prosecution as PW 1. She has stated that while she was in the hospital, police came made enquiries with her and she narrated the incident in detail as to what happened to her. Her statement was recorded by the police and Exhibit 20 was the same statement which according to the prosecution is FIR. This FIR is dated 17-11-1993 and timing of the FIR is 12.15 in the afternoon. According to Rambha incident has taken place between 7.30 to 8.30 p.m. on 16-11-1993.

22. Our attention in that respect was drawn by Mr. Chitnis and Mr. Mundargi to station diary entries of the Railway Police. These station diary entries are at Exhibit 35 collectively. They are at record page 437 to 446. The first entry is about 22 p.m. on 16-11-1993. The entry is as under :

16-11-1993 23.00 hours entry is as under:

ASI Kedar of Thane City Police Station informed the Railway Police that the girl by name Rambha Tukaram Pattekar who met with an accident on 16-11-1993 at 21.15 was admitted in the hospital and under the Memo of Station ASM Thane by PC 334 and the nurse giving treatment to Rambha told that Rambha was raped. Therefore, a note of this information was taken and the information was given to the superiors and constable was deputed.

There is another station diary entry on 16-11-1993 at 23.50. It is about giving intimation to her cousin Raju Dagdu Pattekar (son of Shantabai).

The next entry is 17-11-1993 1.30houirs. It is with reference to the earlier entry No. 50 that Rambha was not in a position to give any statement and with a note that her statement will be recorded after she regain consciousness.

Next entry is 9 a.m. dated 17-11-1993 that Jamadar of Civil Hospital informed on phone that arrangements were made to record the statement of Rambha after her treatment and operation was over. Next entry is dated 17-11-1993 at 12.30 about registering offence under Section 376 and 149, 323. It was the names of accused in that area is Mahesh alias Haresh and others, one of which is hefty and others are young boys. Rape was committed between 8 to 8.30 below the errand trees. The entry also refers that after receiving information from their informer 6-7 isams were taken in custody and the enquiry was going on.

23. Since the main attack of both Mr. Chitnis and Mr. Mundargi is on Exhibit '20' which according to them could not be treated as FIR, it is necessary to find out from the evidence as to when actually police came to know about the gang rape by these accused. According to the prosecution FIR came to be recorded on 17-11-1993 at 12.15 in the afternoon.

24. The witnesses whose evidence is relevant for this purpose are PW 9 Dr. Anil Sakharam Sawant, PW 12 Subhas Sopan Shinde a constable attached to Thane Railway Police Station. PW 17 Bhaskar Appa Saheb Dhas also from Thane Railway Police Station. PW 15 Nanudain Babulal Jamadar who recorded the FIR and the staff nurse of the Thane Civil Hospital PW 10 Smt. Jahida Nabisa Mulla.

25. Dr. Anil Sawant PW 9 stated that he examined Rambha on 16-11 -1993 at 11.30 pm. in the examination in Chief he did not say anything about the disclosure made by Rambha but when question was put in the cross-examination for accused No. 4 the witness stated that Rambha narrated the history and incident of gang rape to him.

26. PW 16 Smt. Jahida Nabisa Mulla has stated that she was in the hospital on 16-11-1993 on night duty when Rambha was brought as accident patient and the way Rambha was shouting and cryhing she could gather that Rambha was sexually ravished. The witness actually has stated "on enquiry 1 could get from her that she did not want to survive as she was spoiled by 5 or 6 boys as she was sexually ravished." This witness Jahida - PW 10 had not given the time or disclosure made by Rambha to her neither in the examination-in-chief nor in the cross-examination.

27. PW 12 Constable Subhash Shinde attached to Railway Police Station stated that when he was informed that accident has taken place by local trains resulting in dash to one woman and that she was admitted to the hospital, he proceeded to the spot of accident along with coolie, he found Rambha on the track with her right leg cut, she was moved to the Civil Hospital, Thane and when she was kept at the stretcher at 8.50 pm. and brought to the hospital within 30 minutes and while Rambha was shifted from one Ward to other Ward and being attended to and while her clothes were being changed Rambha narrated to the staff nurse (PW 10 Jahida) that at the railway track Thane she was ravished by 6-7 person and it was this staff nurse who gave this information to this witness PW 12 Shinde and thereafter he contacted Railway Police and informed about the offence which had taken place in the jurisdiction of Thane Railway Station. PSI. Jamadar had received the phone. PW 12 gave the details and then PSI Jamadar came to the Civil Hospital.

28. PW 15 PSI Jamadar has stated that he was on duty at Thane Railway Police Station on 16-11-1993 and 17-11-1993 night duty. He received a telephone from PC Shinde, necessary entry of this information was taken in the station diary and thereafter he went to the Civil Hospital. He reached Civil Hospital at 11.10 at night. The victim Rambha was unconscious at that time, therefore, he came back. He again went back to the hospital on 17-11 -1993 at 12 noon when Rambha was conscious and therefore he recorded her statement FIR Exhibit 20.

29. The next witness is PW 17 Bhaskar Appa Saheb Dhas. According to this witness he was at home from 9.30 on 16-11-1993 when constable Sapal came to his residence and informed him about the railway accident to a girl, who was admitted in Civil hospital for treatment. Constable Sapal also told that the girl was complaining of rape by number of boys. PW 17 Bhaskar along with PC Sapal went to the hospital but Medical Officer told him that patient was serious and was to be operated soon and was not in a position to speak or give any information to the police and this witness therefore, returned to the police station with instruction to P.I. Jamadar to record the statement.

30. From the aforesaid evidence and station diary entry, discussed above, from Exhibit 65, it appears that on the night of 16-11-1993 police had come to know only this much that Rambha was ravished or raped by 6-7 persons. Apart from this they had no clue as to where this rape took place in what manner the rape took place, who were the actual culprits, what were their description, what was the reason for Rambha to go to the said spot, where was the actual spot of rape. In what circumstances Rambha was subjected to gang rape etc. because admittedly none else but Rambha was knowing about the rape at least so far as investigating agency is concerned as on 16-11-1993.

31. Principal object of the FIR is only to make the complaint to the police and set the criminal law into motion. Its second object though equally important is to obtain early information of alleged criminal activity to record the circumstances before there is time for such circumstances to be forgotten or embellished. The Magistrate and Judges while considering omission in FIR should not derive inference from them like mathematical formulas but should try to find out their true fact in the light of all the circumstances of the case and material on record. Again it is to be noticed that FIR is not a substantive evidence and make its use against the maker thereof either for the purpose of contradiction and corroboration.

32. If only technicalities are required to be considered then station diary entry on 16-11-J993 at 21.30 in the night is the FIR because it is about rape of Rambha by 5-6 persons but if object of the FIR is to set criminal law into motion then that entry was not at all sufficient to set criminal law into motion because police could not have investigated anything at all on the basis of that entry. The entry did not give the names of the accused, their description, who were they, where the rape was committed, whether it was within the jurisdiction of Thane Railway Police or not, what were the circumstances preceding and after the rape etc. That entry in Exhibit 65 at 23.30 only refer to the fact of rape and nothing more. Criminal law cannot be said to be set in motion by that entry for want of any more particulars whatsoever. It was necessary for the police to come and contact, approach. Rambha and seek her statement, then only they would be in a position to start their investigation. Therefore, it cannot be said that merely on the basis of the entry at 23.30 hours criminal law was set into motion and investigation was started. In fact there was nothing before the police to investigate unless they had statement of the victim. They could not have found out whether there were any witnesses were there because they did not know the place of the incident, they could not have conducted the spot panchanama because they were not knowing the spot of the offence itself. In fact they were unable to do anything at all which would have suggestive of taking steps for investigation on the basis of the said entry because everthing depended on the statement of the victim Rambha. Defence cannot take advantage of the fact that the station diary entry of 23.30 p.m. dated 16-11-1993 did not contended the names of the accused because what P.C. Shinde conveyed to Thane Railway Police was what was told to him by the staff nurse while she was changing the clothes of Rambha, Rambha had only uttered that she was ravished by 5-6 persons and nothing more. For the same reason submission of the defence cannot be accepted that if the names of the accused did not figure in the said station diary entry, the FIR recorded on the next day is a concoction or fabrication of false case by the police.

33. It is constant and consistent approach of the Court so far as FIR is concerned that the object of FIR is to set criminal law into motion and in the instant case the criminal law could not have been said to have been set into motion, by the said diary entry at all. Setting crimninal law in to motion, in other words means requiring investigating agency to take steps towards investigation, make some efforts for investigating the crime. But as stated above the station diary entry could not have been by any Police Officer, however, intelligent, experienced and genius he was to make any investigation regarding the offence of rape because station diary entry of 23.30 hours did not give any clue direct, indirect whatsoever about any of the particulars required to carry out investigation.

34. We are fortified in our view by the judgment of the Supreme Court (Tapindersingh v. State of Punjab). In that case the incident was of firing by fire arms. It has taken place at 5.30 pm. and while the incident was going on or was over some person telephoned to city Kotwali, Ludhiana on the day of occurrence at about 5.30 p.m. informing the police authorities that fire had taken place at taxi stand Ludhiana. The person giving information on telephone did not disclose his identify, nor did he give any particulars. However, the Police Officer upon receiving the message made an entry in the daily diary at 5.35 p.m.

When moved against conviction of the accused where the accused is sentenced for capital punishment, the appeal was rejected by the High Court and the matter went before the Supreme Court, Counsel for the accused the then appearing before the Supreme Court started his attack on the FIR which was subsequently based on the dying declaration. The attack was with reference to the station diary entry and it was contended that information regarding the offence had already been conveyed to the police by means of telephone message and the police had actually started investigation on the basis of that information. By this submission counsel for the accused wanted that FIR recorded on the basis of the dying declaration could not be read as such. This argument was however negatived by the Supreme Court on the ground that person conveying the information did not disclose his identify nor did he give any other particulars and all that is said to have been conveyed was that fire had taken place at the taxi stand Ludhiana. Supreme Court found that prima facie cryptic and anonymous oral message which did not in terms clearly specify a fact that this information was first in point of time does not by itself clothe it with the character of FIR. This judgment directly applies to the facts of the case. In fact in that matter before the Supreme Court the Police had reached the taxi stand Ludhlana because they had some clues as to where the incident of fire might have taken place. However, in the present case, before us, even that clue is absent. The message given by Constable Shinde on telephone has came to be recorded at Exhibit 65. In the station diary entry at 1.30 pm. on 16-11-1993 was a cryptic message communicating that one Rambha was raped by 5-6 boys. We have discussed what particulars were lacking, we have also discussed that this information was not sufficient to set the criminal law into motion and thereafter for all those reasons along with the aforesaid Supreme Court judgment, the argument of the counsel for the accused is required to be rejected that the FIR has to be treated as FIR.

35. These criteria cannot be made applicable to the present case. Rambha victim in this case was in a miserable condition when she was admitted in the hospital, she had not made any disclosure at all to the nurse or to the doctor, apart from stating that she has been ravished by 5-6 persons. Thus information conveyed by Rambha while she was in agony, pain and suffering to the staff nurse and staff nurse conveying it the Constable Shinde and Constable Shinde communicating it to Thane Railway Police cannot in any circumstances be called as FIR. The general criterias stated above regarding FIR cannot therefore be made applicable in the present case and no benefit whatsoever can be given to the accused on the ground that the FIR did not contain the names of the accused, FIR did not contain the place, FIR did not contain the manner of the gang rape.

36. There is therefore, no substance in the argument that the station diary entry dated 16-11-1993 at 23.30 to be treated as FIR and not Exhibit 20.

37. It is only Exhibit 20 which can be and which has to be treated as FIR irrespective of the fact that station diary entry of 23.30 is there on the record. It is only Exhibit 20 which satisfies the requirement of Section 154 and the object behind the FIR i.e. to set the criminal law into motion i.e. to give some material to the police to start their investigation, because it is only in Exhibit 20 that Rambha narrated the incident to the best of her ability giving some clues to the police to investigate into the matter. It is this document which satisfies the requirement of Section 154 and it is this document that has to be treated as FIR and not any other entry in the station diary including the entry of 23.30 hours. The Contention of the defence that investigation had commenced after station diary entry on 23.30 hours has no force because as stated earlier twice police had no particulars worthy of their name to investigate. There was no direction in which the investigation was to be carried. There was no hint as to what is to be investigated excepting the fact that the girl was raped by 5-6 persons, whether those 5-6 persons were aged and old, whether they were of tender age.

38. It was also tried to be repeatedly urged that right from the time Rambha was admitted in the hospital, she was conscious or she had regained consciousness some time and even then police deliberately did not record her statement, we do not find any force in the submission. From the evidence given by Rambha it is clear that she had no food on the date of the incident, she was wandering all alone in this vast unknow city, she was driven by her aunt Shantabai, she had no place to hide. No money to move or trael by travel and in that mental situation she was subjected to rape by 6-7 persons and she was so frustrated that she decided to end her life and actually tried to commit suicide but had to loose her leg for ever and become crippled for her life in that attempt. Therefore, in that physical, mental and emotional set up if Rambha was removed to the hospital at 8.30 as stated by P.C. Shinde it cannot be said that recording of FIR on the next day at 12 in the afternoon on account of deliberate attempt and police to delay recording of FIR. It has come in the evidence that right leg of Rambha had to be amputed after performing surgery upon her and in this background if the FIR came to be recorded at 12 noon and there is nothing on record to show that police had any motive in delaying the recording, the case of the prosecution has to be accepted that Rambha was not conscious and mentally fit to give any statement till 12 in the afternoon on 17-11-1993.

39. Once the submission of the advocate for the accused regarding FIR are rejected as above, then the prosecution case has to be scrutinised on the basis of Rambha's evidence in Court corroborated by FIR or contracted by FIR whenever such contradictions are there.

40. However, before going to the evidence of Rambha, it is necessary to consider submissions made by the advocates for both the accused regarding the identification parade held by the SEM PW 18 Shinde Shankar Sadaphule. It was urged that this identification parade is nothing but a farce. From the evidence of PW 18 who was the person present at the identification parade, it is clear that Mr. P.M. Pote, the Judicial Magistrate of Kalyan who conducted the T.I. Parade was not knowing the basic principles of holding of identification parade. We find justification in this submission and objection because for identifying accused, 36 persons were kept placed in the parade and all the six accused were mixed, in those 36 dummies. It is in total violation of the guideline under the Rules framed by this Court for holding parade. Therefore, on this ground itself the entire evidence of PW 18 on Memorandum of identification Parade through her are required to be rejected. Secondly, no evidentiary value whatsoever can be given to this piece of evidence coming from PW 18 and the Memorandum of Parade.

41. So far as actual act or gang rape is concerned, admittedly there is no other eye witness and generally there could not be an eye witness to the gang rape. Rambha has given a detailed history as to how she came to her aunt Shantabai at Goregaon and how and in what circumstances she left the house of Shantabai with a suit case, how the suit case was lost, she had to go back to Shantabai, but was ordered by Shantabai to leave the house immeditely and how she left the house of Shantabai on the fateful day in the morning.

42. Rambha has stated that she went to Thane Railway station where she met one Manisha, Manisha took her to Kalyan Via Dadar and Manisha left her in the midst of unknown persons and then she came to Thana railway station, she has referred to two boot polishwala in her evidence and they are PW 7 Anil Vasant Mohite and PW 13 Udhav Parshuram Chavare. It is at this place that accused No. 1 approached her and lured her to accompany him with false promise that he will reach her to Mulund Check Naka.

43. So far as this part of the story is concerned, Rambha's evidence is amply corroborated by PW 7 and 13 the two boot polishwala boys who are totally independent witnesses, who are 15 years old at the time of the incident and PW 13 who was 18 year old at the relevant time. Both of them corroborated Rambha on the point that she approached them, sat with them for some time, complained to them that other persons on the platform were teasing her, that she was offered tea, that PW 13 has gone to purchase ticket for her and in the time one boy who is identified as accused No. 1 Haresh alias Mahesh came there and Rambha went with him.

44. Therefore, the strong corroboration to the story of Rambha up to this point i.e. accused No. 1 Haresh alias Mahesh taking her away on some false pretext.

45. Thereafter, according to Rambha she was taken by Haresh to other side of Thane Railway Station near Hanuman temple. This fact is also corroborated because the scene of offence panchnama (Exhibit 26) there is a temple of Lord Shankar near the spot. Admittedly, Rambha was stranger to that area and therefore no capital can be allowed to be made of this fact that there is not a Hanuman temple but a Shankar temple. The fact that she was taken near the temple by the accused No. 1 stands corroborated. Second corroboration to the Rambha's story is from the fact that Kolhapuri chappel was found on the spot. Rambha has told that while she was being dragged to the scene of offence for committing rape by accused No. 1, she left the Kolhapuri chappel. It is this Kolhapur chappel which was found on the spot. Thirdly, her torn clothes, i.e. ladies nikkar and torn salwar were found on the spot. This corroborates the testimony of Rambha that incident of rape took place near errand trees near the temple on the other side of Thane Railway station.

46. So far as actual incident of gang rape is concerned, there was no serious challenge to the fact of the gang rape from the side of defence because their main defence was that the accused were not party to the gang rape and they have been either wrongly identified or falsely implicated. However, even otherwise there is ample material on record to hold that Rambha was gang raped on that day. The most strong circumstance in this regard is an attempt of Rambha to commit suicide after the gang rape. Because it was the gang rape that brought that frustrating movement in her life and she decided to end her life. She has clearly stated about her mental condition after the gang rape and why she decided to commit sucide. Dr. Anil Sakharam Sawant PW 9 of Civil Hospital Thane had examined Rambha. He found about 9 injuries on her person apart from amputed leg, he found that Labia majora healthy but swollen, there was fresh bleeding present through vagina and then there are fresh dymenal tears present. Tenderness was there on private parts. Dr. opined that this clinical examination and findings were suggestive of forceful sexual intercourse within six hours. Apart from all these circumstances, in the F.I.R. as well as in the evidence in Court, Rambha has deposed about the gang rape on her. Therefore, considering all these circumstances it has to be held that prosecution has successfully proved that Rambha was victim of gang rape on that day. The fact that Rambha was a minor on the date of the incident stands proved by her School leaving certificate which was produced by PW 14 Ramchandra Ganpat Ghadge he was Clerk in Mahatma Phule Vidyalaya at Baloni and as per the School Leaving Certificate the date of birth was 1-8-1978. The incident is dated 16-11-1993, therefore Rambha has not completed 16 years of age on the date of the incident. The next important question is whether gang rape was committed by these accused and whether the prosecution has succeeded in proving this important aspect.

47. In this regard the submission of the defence was that firstly that the culprits were unknown to Rambha and therefore within the short span of time within which the gang rape was committed and the place and the surrounding darkness,it was impossible for Rambha to remember the faces, figures or physical characteistic of those culprits and therefore factually she could not have identified the culprits. Secondly, the mental condition of Rambha as is depicted by her on that particular day everything preceding the rape suggest the confused state of mind and there is admission of Rambha that she was confused, frightened and some times unconscious or semi conscious because of the gang rape and therefore according to defence these itself is sufficient to hold that Rambha was not in a position to identify the culprit. The third submission was that culprits i.e. accused were arrested by the police even before FIR was lodged and they were shown to Rambha before recording FIR and this was all done illegally and to falsely implicate the accused in this serious offence. Fourthly, identification parade is totally illegal and is nothing but a farce as the SEM did not even know the basic princples of holding identification parade. Fifthly, the accused have been implicated at the instance of the Police.

48. So far as identification parade is concerned, the entire evidence of the prosecution in that regard has to be rejected out right because for identifying six accused only one parade was held wherein 36 dummies were kept along with this accused and this illegality is going to the root of the matter, vitiates the entire parade. Therefore, we clarify that we are not accepting the evidence of identification parade.

49. So far as the mental state of Rambha is concerned, no doubt she has left the home, she had no shelter in Mumbai, she was not knowing the place, she had no money, no intake of food but all these circumstances did not affect her female consciousness because when the strangers at Thane Railway Station platform tried to tease her, she did not like it, she complained to PW 17 and PW 13. Thereafter when Haresh alias Mahesh took her with him and tried to tease her by touching her hair or body, she retorted and also did not like. These facts coupled with the fact that Rambha did not like to join dancing class where her Aunt's daughter Lata was learning dancing because of the atmosphere in that club show that right from the beginning Rambha was conscious or her feminity and did not tolerate any nonsense behaaviour with her. Therefore, not having food on that day or not having money with her could not be taken as a circumstance, affecting her power of perception and understanding good and differenciate between evil intention and friendliness. She had no complaints of whatosever nature against PWs 7 and 13 the boot polishwala boys of Thane Railway Platfrom.

50. Therefore, it cannot be said that in that day even before the rape occurred Rambha has lost her power on perception.

51. So far as actual incident of rape is concerned, it is true that the incident has taken place near or below the errand trees by the side of the wall but it is a fact that Rambha was subjected to gang rape i.e. more than 5-6 persons. The incident of gang rape by seven persons in our estimation could have taken minimum period of 25 to 30 minutes without going into the details or rituals that the culprits were required to undergo to satisfy their lust. This much period was sufficient for a girl like Rambha who was conscious of her feminity to re-collect the faces or figures or charasteristic of the boys so as to identify them.

52. Therefore, we do not find any substance in the submissions of the defence that the manner in which the incident occurred did not give any time to Rambha to remember and identify those culprits.

53. So far as role of accused No. 1 is concerned, he was with Rambha right from the time when he approached her at Thane Railway Station. It was accused No. 1, who took her to the place where the rape was ultimately committed, on way he was trying to tease her and it was resisted by Rambha. He slapped her and assaulted her, dragged her to the spot and also offered Rs. 5,000/-, if she could fulfil his lust, all these followed by rape by him twice was sufficient time and opportunity for Rambha to remember not only for the purpose of this case but also for all of her life.

54. Accused No. 1 raped her twice in the series of acts and thereafter the accused came. They questioned accused No. 1 as to what he was doing and since accused No. 1 was himself a party to rape against the wishes of Rambha, he was generous enough, to save his skin to offer Rambha to other boys, this indicates that there was a talk between accused No. 1 and other accused and thereafter all these accused committed forcible sexual intercourse upon Rambha.

55. Sequence of events given by Rambha therefore clearly show that Rambha had ample opportunity and occasion to see these boys and, therefore, she was in a position to identify them immediately. She had also given their description in her FIR. She also identified all the accused in Court, identified her Kolhapuri Chappel and clothes which were on her person on that fateful night.

56. In her cross-examination on behalf of accused Nos. 2 and 3 she has stated that Harish created confidence in her mind and therefore, she followed him otherwise there was no reason to follow him. She also stated that accused No. 1 had promised her to take her to Mulund Check Naka, obvously from where she could go to Goregaon. Nothing has been brought out in fact in cross-examination to create any kind of doubt or suspicion about the demeanour of the witnesses or her integrity or her character. In fact so far as cross-examinaton of accused No. 1 is concerned, it is full of suggestions only, all of which have been denied by Rambha. Not a single answer of Rambha in that regard has shatterd or shaken her evidence in examination-in-chief. Same is the case about the cross-examination for the other accused. All the suggestions regarding false implications, inability to identify have been fraudulently and vehemently denied by Rambha.

57. It is, therefore, clear that Rambha has successfully proved the guilt of the accused but this is a case where the prosecution has the advantage of relying upon other strong circumstances and those circumstanes are injuries on the person of all the accused when they were examined by Dr. Suryakant or P.W. 11, Dr. Tok has stated that he examined all the six accused on 17-11-1993 i.e. immediately on the next date. So far as accused-Ganesh is concerned he found the following injuries :

1) Contusion abrason on left fore arm size 2" x Vi".

2) Abrason left side of neck 1/4" x 1/10.

3) Two abrasions linear on forehead 1" x 1/10".

4) Contusion left arm size 2" x 1".

5) Contusion left back size 2" x 1/2.

6) Abrason two in number on elbow behind both the elbow rt. and It. 1/4" x 1/4.

So far as accused-Nandu Vasant Sharma is concerned, he found following injuries :

1) Abrasion on left shoulder 1/10" x 1/2". On the person of accused-Sunil Tukaram Nikam, he found following injuries :

1) Contusion on left thigh linear size 4 x.

2) Abrasion on left wrist size 1/4" x 1/4

Similarly, he also found injuries on the person of accused-Manohar Laxman Shelar, Naresh Ghodiram Mogare and Harish Mahadeo Kamble and issued necessary certificates in that regard. All these injuries found on the person of these accused, place of the injuries, location of the injuries and the fact that the injuries were found within 24 hours of the gang rape strongly corroborate the story of Rambha that she was raped by none other than these accused, it also lends strong support to the evidence of Rambha regarding identification of these accused. Admittedly, as against this, there is no whisper from any of the accused in the form of any suggestion to Rambha or to any of the prosecution witnesses as to how and why all these accused came to have these injuries on their body, how the injuries were more or less situate at same place indicative of use of force by them on Rambha while committing rape.

58. Therefore this is a case where Rambha not only described the accused in the FIR but she identifies them and all the accused are having injuries on their person for which there is absolutely no explanation, but the prosecution case does not end here. There are two more strong pieces of evidence going against the accused. These pieces of evidence are the clothes seized from the accused were sent to the C.A. along with the sample of soil recovered from the scene of offence. The C.A. in his report has opined that the clothes of all the accused were soiled with mud and the mud was of the same quality and was tallying with the sample mud. The exact report of the C.A. in that regard is Exhibit 75 where C.A. has stated "Earths collected from Exhibit 1 to Exhibit 4, Exhibit 5 to Exhibit 7, Exhibit 8 to Exhibit 10, Exhibit 11 to Exhibit 13, Exhibit 14 to Exhibit 16, Exhibit 17 to Exhibit 19 and Exhibit 20 to Exhibit 22 tally with earth in Exhibits 23 and 24 in respect of hue, physiochemical character and spectrochemical composition.

59. Thus finding of mud on the clothes of the accused corroborates the prosecution case and the story of Rambha that she was raped at a muddy place, it corroborates panchnama and since here also no explanation is forthcoming from the accused about the finding of mud from their clothes, it has to be held the prosecution has proved the charges against the accused beyond any doubt whatsoever.

60. Further, apart from this, clothes were also recovered of the accused during the investigation. They were sent to C.A. and the C.A. report Exhibit 74 shows that Article 10 which was Jangya of accused No. 2 human blood was found, on Article No. 14 full-pant of accused No. 3 human semen was found and Articles 1, 2, 3 and 4 which were the clothes of Rambha, namely, Salwar, Kurta, Petticoat and nikar blood was found of 'A' group. Article 24 which was earth recovered from the spot was also found to contain blood.

61. In the above-said background and for the reasons stated above, we hold that the trial Court was justified in convicting the accused and no interference is called for. Appeals dismissed and disposed of accordingly.