Pravin Manohar Ghag And Naresh ... vs The State Of Maharashtra
2003 Latest Caselaw 974 Bom

JUDGMENT

S.S. Parkar, J.

1. This appeal has been filed challenging the judgment and order dated 18/12/1998 delivered by the Addl. Sessions Judge, Greater Bombay convicting the appellants for offences under Sections 376(2)(g) and 452 read with Section 34 of IPC.

2. The prosecution case briefly narrated is as follows:

The prosecutrix, a married woman aged about 29 years was resident of an area known as New Hanuman Nagar. Teen Dongri, Goregaon (West), Mumbai. She was residing there with her three children i.e. two daughters aged 10 and 6 and a son aged four years and her husband who was doing tailoring work in an export garment company at Kandivli. The incident took place on the night between 16th and 17th June 1996 after midnight when she was sleeping in her hut along with her children. The husband had not returned from his work. The hut was very small having area of about 12 x 15 ft. The hut was made of plastic paper and gunny bag sheets. Both the appellants were residents of the same locality, one of them i.e. appellant No. 2 was residing in the neighbourhood. The prosecutrix was pregnant at that time. The lady with her children had gone to sleep taking their dinners. The appellants entered her hut in the midnight in drunken condition by pushing the door. Her door was not having latch from inside. It used to be just kept closed with the support of bricks without being latched from inside. When the appellants entered her hut, she got up and enquired as to who had come. The accused abused her in filthy language and threatened her not to shout. She was pushed down. The accused closed her mouth with their hands and also put their hands on her chest and started removing her night dress. She pleaded with them not to touch her but they abused her and made her lie down and threatened her that if she makes noise she would be stripped of naked and taken outside. Both the persons raped her one after another and then left. At that time it was raining. Next morning she went to the residence of Hamidabanu PW 4 who was residing at Laxmi Nagar, Goregaon and narrated the incident of the previous night to her. PW 4 advised her to lodge complaint with the police and accordingly they went to the police station in the evening and lodged the complaint which is at Exhibit 8. The police went to her hut and drew panchanama of the place of incident. Her night dress was seized under the panchanama and she was sent for medical examination. She pointed out the huts of both the appellants from where both of them were arrested on the following night. In the FIR itself she had named the appellant No. 1 and stated that she did not know the name of appellant No. 2 but knew him by face and accordingly she took the police to his house also from where he was arrested. Both the accused after their arrest were sent for medical examinations. The clothes of the accused as well as the prosecutrix were sent to Chemical Analyser and the report was obtained. The statements or the witnesses including Hamidabanu were recorded. After completion of investigation charge-sheet came to be filed and the case was committed to the Sessions Court.

3. Before the Sessions Court charge were framed against both the appellants for offence under Section 452 read with Section 34 of IPC and and for offence under Section 376(2)(e) and (g) of the IPC i.e. for gang rape to which the appellants pleaded not guilty. On behalf of the prosecution five witnesses were examined, PW 1 is Rabiabanu, the prosecutrix. PW 2 is Dr. Dhamawale, the Medical Officer attached to Dr. D.B. Marg Police Dispensary at Nagpada who had examined both the accused as well as the prosecutrix at about 5-30 a.m. on 18th June 1996. PW 3 is Sayeed Rafiq, the panch for spot panchanama. PW 4 is Hamidabanu Khan who was formerly neighbour of the prosecutrix to whom she had narrated the incident of rape. PW5 is investigating officer PSI Vhanmare who investigated the case. The defence of both the appellants was of denial.

4. After considering the entire evidence on record the learned trial Judge by her judgment and order dated 18/12/1998 convicted both the accused of offence under Section 376(2)(g) of IPC and sentenced each of them to RI for ten years and to pay a fine of Rs. 5000/- in default to suffer SI for one year as well as for offence under Section 452 read with Section 34 of IPC and sentenced each of them to RI for five years and to pay a fine of Rs. 500/- in default to suffer SI for six months. Both the sentences were directed to fun concurrently. The said judgment and order of conviction and sentences awarded to the appellants is impugned in this appeal filed by both the accused.

5. I have heard both the Advocates appearing for the appellants and also the learned APP appearing for the State and gone through the evidence of the witnesses and the defence of the accused and the documentary evidence like FIR, spot panchanama, medical certificates and CA certificates etc.

6. On behalf of the appellants it is contended that the prosecutrix should not be believed because there was delay in lodging the complaint and no witness from the neighbourhood was examined who must have been woken up due to the cries of the prosecutrix. Secondly, it is contended that no semen was found on the clothes of the accused which were seized by the police and, therefore, the accused cannot be held guilty. Lastly it was submitted that if the complainant had made noise her children would have woken up. On the other hand the learned APP relied on the evidence of prosecutrix PW 1 supported by Hamidabanu PW 4 to whom she had narrated the incident and also the medical certificates as well as the CA reports according to which semen of blood group of "A" and "B", which is that of the appellants, was detected. He has also relied on the history given by both the appellants to the Medical Officer PW 2 which is quoted in the medical certificates issued by him.

7. PW 1 has deposed in her evidence that on the night of the incident at about midnight when she was sleeping in her but along with her kids, the appellants entered her hut from the door which was having no latch. She used to keep the door closed with the support of bricks. The hut itself was "kachcha hut" made of plastic paper and plastic gunny bag sheets. The door which was fixed to it was itself not strong. She knew appellant No. 1 by name which is mentioned in the FIR itself and she knew appellant No. 2 by his face. She was knowing the huts of both the accused persons and it was she who pointed out to the Investigating Officer the huts of the appellants and identified them for he purpose of being arrested by the Investigating Officer on the following night. Appellant No. 2 was her neighbour. When they entered her hut and she questioned them as to why they had come, they abused her in filthy language and threatened her not to shout. They closed her mouth with their hands and put their hands on her chest. They removed her gown which she was wearing and when she pleaded with them not to touch her, she was abused and made to like down. Thereafter both of them had sexual intercourse with her one after another and thereafter left her hut. He children were sleeping at that time. On behalf of the appellants reference was made to the police statement of the complainant in which she is stated to have said that she begged for their pardon and it was argued what crime she had committed that she had to ask for appellants pardon. In her deposition she has stated that when they started removing her garments from her person, she pleaded with them not to touch her person. The said plea made by the prosecutrix is being used on behalf of the accused to argue that the prosecutrix had done something wrong for which she was begging for their pardon. Her plea for mercy should not be misunderstood. her pleading for mercy only shows helpless condition in which the prosecutrix, a married lady with three children sleeping by her side, must have found herself when she realised about the evil intentions of the appellants who wanted to have illicit intercourse with her. Fearing that these two appellants who had entered her hut in drunken condition might harm her or any of her kids who were fast asleep, she must have found it impossible to resist the attempt by these two appellants at about 2 O clock in the night when normally there is dead silence as people are fast asleep and, therefore, the only course open to her was to plead for mercy as any resistance on her part would have put her to the risk of the accused either assaulting her fatally or her young kids who must have been in dep slumber. As it was raining at that time it must have added to her difficulties. Therefore, her plea for mercy should not be misunderstood to mean that she had done something wrong and, therefore, she was pleading for their mercy. It is not unusual for an innocent person to ask for pardon even of a criminal who is likely to cause harm to him. In the case of the prosecutrix she must have tried to avoid the danger either to her life or to her kids and, therefore, she must not have thought of taking risk of raising shouts and invite ire of the appellants and face the trouble. The prosecutrix in her deposition stated that she was crying and, therefore, it is argued that hearing her cries either the children should have woken up from their sleep or the neighbours should have come to her rescue. So far as the children are concerned it is not unusual for their age to be fast asleep at that hour of the night and the cries of the lady must not have been loud enough in the rains to awaken the persons from the neighbouring huts. The complainant has not said that she was loudly calling for help. From her deposition it seems that her whole attempt was to avoid danger to her own life, who was herself pregnant, and that of her kids in case she had tried to shout loudly or resist strongly. When two young men enter the hut of a helpless women at 2 O clock in the night when there is dead silence and the people are normally fast in their sleep, the women had no alternative but only to plead for their mercy and that is why she must have pleaded for mercy and then she had to succumb to their lust which should not be misunderstood to mean that there was either consent or no rape committed on her. If she had been a consenting party she would not have lodged the complaint next day when no other person had noticed it. Her evidence is supported by PW 4 Hamidabanu to whom she approached the following morning after the incident. She had narrated the whole incident to her and thereafter they decided to lodge the complaint with the police. When such crime is committed against a married woman with children the lady has to think ten times about the consequences of lodging complaint to the police. The prosecutrix is not expected to go to the police at that hour of the night to lodge the complaint. She, therefore, went to her friend and narrated the incident to her and thereafter they went to the police and lodged the complaint same day in the evening. the police had come to the place of incident following night and drew the spot panchanama and also arrested both the accused from their respective huts on the complainant showing them. She was accompanying the Investigating officer when they were arrested by the PSI. The reliance by the defence Advocate on the judgment of the Calcutta High Court in the case of Biram Soren v. State reported in 1992 Cri.L.J. 1666 is absolutely misplaced and irrelevant. In that case the complaint of rape was lodged after a period of ten days.

8. PW 4 in her evidence has deposed that she knew the complainant who was her neighbour at one time. On 17th June 1996 the complainant had gone to her house in a frightened condition and on making enquiries she started crying and thereafter she told her that she was raped by appellant No. 1 and another person who was residing opposite to her house. She then narrated the whole incident to her. PW 4 then took her to Goregaon Police Station where her complaint was lodged. She also stated that complainant was threatened by the appellants and, therefore, she was hesitant to lodge the complaint.

9. Their evidence is fully corroborated by the FIR lodged to the police on the night of 17 June 1996. Even the Investigating Officer states that the complainant was accompanied by PW 4 Hamidabanu when she had gone there to lodge the complaint. After 12 in the night the I.O. along with the Police Inspector Hashmi and other staff and the complainant went to the said locality. The panchanama of hut was drawn which is produced at Exhibit 19. The clothes of the prosecutrix i.e. one blue colour maxi and purple petticoat were attached. On her clothes stains were noticed which were encircled in red colour ink. As per the evidence of the Investigating Officer and the panchanama there was kerosene lamp burning inside the hut. The door did not have latch from inside. There were some bricks kept near the platform. In the same night the complainant had taken the police officers to the huts of the accused persons. Both the accused were arrested on the complainant pointing them out to the Investigating Officer. Their clothes were seized under panchanama. Thus the incident of rape which took place in the hut of the complainant on the night between 16th and 17th June 1996 cannot be doubted.

10. PW 2 Dr. Dhamawale who had examined complainant and the two accused has deposed that the complainant Rabiyabanu was brought to him at 5.30 a.m. on 18th June 1996 by API Shende of Goregaon Police Station in his dispensary which is at nagpada. Her blood was taken for examination. According to his opinion the complainant was accustomed or habituated for sexual intercourse and she was pregnant for 17 weeks. He had examined appellant No. 1 at 6.15 a.m. that morning and appellant No. 2 at 6.45 a.m. on that very morning or 18th June 1996. he has issued certificate of appellant No. 1 which is produced at Exhibit 14 and the certificate in respect of appellant No. 2 is produced at Exhibit 16. Dr. Dhamawale PW 2 has deposed that appellant No. 1 had given history that he had committed crime of rape at the residence of the victim on 17th June 1996 at about 1-30 a.m. against her will and that he had consumed alcohol and was under the influence of alcohol. The said history is mentioned in the medical certificate Exhibit 14 in respect of appellant No. 1. Similarly he has deposed that appellant No. 2 had given history before his examination wherein he stated that he had committed crime (rape) at the residence of victim on 17th June 1996 at about 2-00 hours forcibly under the influence of alcohol against her will. He had also taken the blood of both the accused for examination.

11. The clothes of the complainant as well as of the appellants and their blood samples were sent for chemical analysis. As per the CA report the blood of the complainant si of "A" group and that of appellant No. 1 is of "B" group. The blood of appellant No. 2 is of "A" group. As per the CA report (Exh.26), the clothes of the complainant were found stained with semen of the blood of groups "A" and "B". While her maxi was found stained with human semen of blood groups "A" and "B", her petticoat was found stained with human semen of blood groups "A", "B" and "AB". Thus there is corroboration to the evidence of the complainant by the semen which was found on her maxi and petticoat which were seized from her hut immediately after filing of the complaint on the following evening. They were stained with semen which was of the blood group of both the appellants. Thus the evidence of PW 1, apart from being corroborated by the immediate FIR lodged by her and the evidence of PW 4 Hamidabanu, is also supported by the C.A. report which found the stains of semen on both her garments, maxi as well as petticoat, which on analysis was found to be of blood groups "A", "B" and "AB" which is that of the appellants.

12. The prosecution has also relied on the history given by the two accused to the Medical Officer when they were produced before him for their physical examinations in the early morning of 18th June 1996. The medical certificate of appellant No. 1 produced at Exhibit 14 mentions at item No. 4 the history given by the accused. It is stated therein as follows:

"He states that he had done crime (Rape) at the residence of victim, on 17/6/96 at about 01-30 hrs. (A.N.) against her will forcefully. N/o He had consumed alcohol and was under influence of alcohol."

Similarly in the medical certificate concerning appellant No. 2 (Exh.16) in column 4 history given by the accused is as follows:

"He states that he had done Crime (Raped) at the residence of victim, on 17/6/96 at about 02-00 hrs. against her will forcefully, under the influence or alcohol. H/O He had consumed alcohol and was under influence of alcohol."

13. Medical Officer Dr. Dhamawale PW 2 has deposed about it in paragraph 6 of his deposition. He has stated in para 5 of his deposition that at the time of examination accused Pravin and himself were the only persons present. Similarly in respect of appellant No. 2 in para 8 of his deposition the Medical Officer has stated about the history given by the accused i.e. appellant No. 2 in his own words and thereafter he quoted the words of appellant Naresh. He also deposed that at the time of examination of appellant No. 2 he himself and accused No. 2 only were present. Thus the history given by the accused to the Medical Officer immediately after their arrest when they were taken to the Medical Officer is a relevant circumstance which supports the case of the prosecution. That time the accused were taken to him immediately after they were apprehended by the police. The said admission was not made to the Police Officer nor in the presence of the Police Officer nor it is the case of the accused that the said admission was caused by inducement, threat or promise made to him by any person in authority. The history given by the accused to the Medical Officer has been held to be relevant by the Supreme Court in the case of K. Padayachi v. State of Tamil Nadu . That was a case where the accused had given the history to the doctor when he was referred to him that the deceased had caused injury on his toe which was held by the Supreme Court to be admissible as an admission under Section 21 of the Evidence Act as the doctor had deposed before the Court about the said statement being made by the accused to him while giving history of the injury on his person. The Court had held that it was not hit by Section 26 of the Evidence Act. The reliance placed on behalf of the accused on the judgment of the Supreme Court in the case of Suresh Kalani v. State of Maharashtra regarding the admissibility of confession of the co-accused under Section 30 of the Evidence Act is of no relevance at all in this case.

14. So far as the absence of semen in the private part of the complainant is concerned, the complainant had stated in her deposition that she had taken bath in the morning. That time she had not even thought of lodging of complaint to the police. The complainant is an illiterate lady and was not expected to know as to what would be the relevant circumstances in a case of rape for lodging complaint to the police.

15. On behalf of the accused some discrepancies in the evidence of the witnesses as regards the timing was sought to be pointed out but such discrepancies are expected when the deposition is given after a lapse of some period from the date of the incident. Such discrepancies are natural even in case of educated people leave alone illiterate person like the complainant. In this connection the trial Court had referred to the decision of the Supreme Court in the case of Boya Ganganna and Anr. v. State of Andhra Pradesh in which the Apex Court had observed in para 5 of the judgment as follows:

".....minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in case of trained and educated persons, memory sometimes plays false and this would be much more so in case of ignorant and rustic women."

16. The trial Judge, who had the occasion to observe the demenour of the complainant has observed in paragraph 17 of the judgment about the said witness as follows:

"I had observed the demenour of P.W. 1 when she gave evidence. She has impressed me to be a witness of truth. However, she seems to have a poor sense of time. But for that reason her otherwise reliable evidence need not be thrown away. As regards the incident of rape she has deposed truthfully without any attempt at embellishment."

17. In the case of this kind it cannot be forgotten that in our society the rape of a woman carries stigma for her which is difficult to erase. People may sympathise with the lady subjected to rape but such incident becomes talk of the town for years to come and no one would be inclined to forget about the same. In this connection the trial Court has elaborately quoted from the judgment of the Supreme Court in the case of Bhoginbhai Hirjibhai v. State of Gujarat reported in 1983 Cri.L.J. 1096. It is pertinent to quote the following observations made by the Supreme Court in para 9 of the above judgment in a rape case:

"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape of sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society."

In that judgment the Supreme Court gave various reasons why women in India would barely make false allegations of sexual assault. But for her own disclosure to PW 4 and thereafter lodging complaint with the police towards the evening, the offence committed by these appellants would not have come to the light. One can only imagine the embrassment which causes to a woman subjected to such heinous crime and particularly so when it comes to the knowledge of members of public residing in the same locality. The Supreme Court has, therefore, held that to look for corroboration to the testimony of victim of sexual assault would be adding insult to injury. Even on the ground of probability the case of the prosecution cannot be thrown overboard. Both the accused are residents of same locality and they seem to be knowing that the complainant was alone in the house except for her helpless kids as her husband used to be away for his work till late in the night. The accused were stated to be drunken that night which was admitted by them to the Medical Officer while giving him history.

18. The only defence out up on behalf of the accused is of the alleged enmity. According to the defence case the huts of the accused were to be demolished by BMC and the accused No. 1 was resisting the same and the complainant was interested in getting his hut demolished and, therefore, it is alleged that the accused were falsely implicated by the complainant. Apart from the fact that said suggestions have been denied by the complainant in her cross-examination, in para 8 of her deposition the suggestion put to her was that she was deposing at the instance of the people who were interested in demolishing the huts. Would any person of ordinary reason or prudence believe that a married lady with children would falsely implicate any person for having committed rape on her at the instance of people interested in the demolition of the huts of the accused and/or other persons. It is just incredible. The falsity of the defence is quite obvious. It is not possible even to contemplate or imagine that a married lady having three children with fourth in her womb would make false allegation of rape at the instance of the people who were interested in demolishing the huts of the accused. The falsity of the defence itself strengthens the case of the prosecution. It is well high impossible that a married lady, howsoever lowly she may be placed in life, would go to the extent of getting herself involved or roped in a rape case by making false allegations against anybody of having committed rape on her.

19. In the case of Shankarlal Dixit v. State of Maharashtra three Judge Bench of the Supreme Court observed that a false plea can at best be considered as an additional circumstance if other circumstances point unfailingly to the guilt of the accused. Similarly another three Judge Bench of the Supreme Court in the case of Birbal v. State of M.P. held that a false explanation given by an accused is an additional link to the chain of circumstances completing the chain. Similar view was expressed in the case of Geetha v. State of Karnataka by two Judge Bench of the Supreme Court that false denial by the accused assumes importance as it would supply missing link in the chain of circumstances.

20. In the aforesaid circumstances, I have no hesitation in confirming the order of convictions recorded by the trial Court. The sentence awarded is the minimum prescribed under the law for gang rape.

21. In the result the order of conviction and sentence recorded by the Addl. Sessions Judge, Greater Bombay by judgment and order dated 18/12/1998 in Sessions Case No. 873 of 1996 is confirmed and the appeal is dismissed.