The State Of Maharashtra vs Ambarnath Bapusaheb Gade And Ors.
2004 Latest Caselaw 691 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. A. M. Shringarpure, App for the Appellant - State and Mr. b. P. Abhale for the Respondent Nos. 1 to 5 / Original Accused

2. This is an Appeal filed by the State against the acquittal of the accused for the offence under Section 376(g) of Indian Penal Code i.e. gang rape by the Additional Sessions Judge, Pune, vide Judgment date 18.11.1988. The facts giving rise to the case of gang rape against the accused are as under.

3. Jaishree was a victim of the gang rape. She was wife of accused No. 1. Accused No. 2 was her father in law, accused No. 3 was his brother in law, accused No. 4 maternal uncle and accused No. 5 one of the neighbour of the aforesaid accused. About four years before the incident she was married with the accused No. 1 and after the marriage she started living with accused No. 1 at Village Sakore. She was ill-treated by the accused. She was compelled to fetch Rs. 5,000/= from her father. She was being insulted because she was black in complexion and was addressed as kali. She used to visit her parents and used to narrate the sorrowful story of her miserable life to them.

4. Thereafter sometime before the aforesaid incident, she learnt that her husband accused No. 1 has remarried, she got apprehensive of her brother Vasant and two more relatives she came back to the house of the accused No. 1. The accused No. 1 did not take objection when she returned. on the contrary she was welcomed in the house.

5. On that day Jaishree performed her domestic work and also went on the agricultural field of the accused for doing agricultural operations. She came back in the evening. Took her meals and slept in the court yard with other inmates of the house. Those were days of May and therefore it was customary in the village to sleep in the court yard. Around mid night or to be precise to be about at 1.00 a.m. her husband accused No. 1 came there and woke her up, gagged her mouth, tied her both legs, took he on his shoulders and brought her to his farm or agricultural land and laid her down on the soil below a mango tree. She was asked whether she had brought the amount claimed, she told the husband that she did not bring any amount with her, accused No. 1 got annoyed, he tied her both feet and hands and after removing her mangalsutra and other ornaments committed rape upon her. In the meantime other accused Nos. 2 to 5 came there and in succession all of them committed rape upon her.

6. This successive rape by five persons all too closely and intimately related to her and persons like father in law and brother in law put Jaishree in a condition of utter mental shock. Next day morning her brother was informed that Jaishree was found in a temple in an abnormal condition. Jaishree's brother Vasant therefore went to see her. He saw that her clothes were torn, heir were loose and she was talking irrelvantly. He suspected some foul play and also suspected that she must have been assaulted by her husband accused No. 1. he therefore took her to the police station, lodged a complaint, police sent her for medical examination regarding her mental symptoms and from that day i.e. on 8.5.1988 she was under the treatment of doctors for hysterical amnesia. On 12th /13th May 1988 she regained consciousness in the sense that she could understand the surrounding and regained her memory and within few days complaint came to be lodged by her to the police about the gang rape. Thereafter panchanama of the scene of offence was made by the police, spot of offence being shown by Jaishree herself, her clothes, which were on her person at the time of the gang rape were seized and after the arrest of the accused, their clothes at the time of the offence were also seized. Statements came to be recorded. Jaishree was again sent back to the doctor for medical examination regarding rape and a charge sheet ultimately came to be filed.

7. Before the trial court accused admitted panchanama of the scene of offence, panchanama of the attachment of clothes of prosecutrix, arrest panchanama of the accused and all their clothes from accused No. 1 to 4. And arrest panchanama and seizure of clothes panchanama, of accused No. 5. These documents were therefore exhibited by the trial court. No witnesses were examined to prove them as they were admitted by the defence. The prosecution examined Jaishree -Prosecutrix, her brother Vasant, one Hirachand Shah who was a doctor. One more doctor and the Investigating officer, in all five witnesses. The defence of the accused was of the total denial and thereafter the trial court acquitted the accused from the charges of gang rape. The main reasons given by the trial court are:

1. There was absolutely no medical evidence on the point of rape on the person of the prosecutrix;

2. That even though house of the accused was surrounded by number of other houses and even though Police Patil and others were available in the village and even her sister staying in the house nobody came forward to help Jaishree, who was alleged to be subjected to such cruelty of beastly type. These are the wordings used by the trial court.

3. Further the trial court observed that not a single person of the village came forward to speak single word in favour of Jaishree and these are dominant facts which cannot be lost sight of.

8. Further according to the trial court Jaishree regained consciousness on 13.5.1988. She had approached one Advocate Chayatai Padwal but no FIR came to be recorded on that day and the FIR came to be lodged on 15.5.1988. Therefore there is delay giving room for manipulation and these are most important lapses in making the report and the lapses have not been satisfactorily explained. At this juncture the trial court observed that there is inherent suspicion in the whole of the prosecution case.

9. Thereafter while assessing the evidence, the trial court observes that it is difficult to believe that after committing such a heinous and serious offence Jaishree would have lost left stranded at the village. There is Police Patil at a short distance and hardly at a distance of two kms. there is village of her parents and it was impossible to reconcile that if this incident had happened no report would have been made immediately to her parents. The trial court also found that all the accused were not living jointly under one room, there was nothing on record to show and suggestion as to how and when they assembled together, at what place and when they decided to commit this heinous crime. Therefore, the trial court observed that the entire story of the prosecution appears to be concocted with the sole intention to take revenge as the accused No. 1 performed the second marriage. The trial court also found that the evidence of Jaishree does not inspire confidence.

10. So far as evidence of Vasant was concerned, he was also given similar treatment by the trial court. If at all Vasant had seen the condition of his sister Jaishree on 8.5.1988 there was no mention of any rape being committed in his report lodged on same day. Further there was delay of two days in lodging the FIR. Medical evidence did not support the theory of rape and therefore for all these reasons the accused came to be acquitted.

11. When this matter was heard by me, Mr. Abhale strenuously urged that since this is an appeal against acquittal, the powers of the court were limited and when though according to him the court can reappreciate the evidence in its entirety and come to a different conclusions court was not supposed to interfere with the order of acquittal only because some other view was possible. He cited Judgment of the Supreme Court Shingara Singh v. State of Haryana and Anr. wherein the Supreme Court in paragraph 26 has observed and held that:

"It is well settled that in an appeal against acquittal the High Court is entitled to re-appreciate the entire evidence on record but having done so if it finds that the view taken by the trial Court is a possible reasonable view of the evidence on record it will not substitute its opinion for that of the trial court."

12. It is true that if the trial court has taken a reasonable view then the High Court will not interfere in order of acquittal merely because other view is possible but if the court finds that the judgment of the trial court is perverse or that it has committed serious error of law as regards its findings by ignoring relevant material on record then the court is justified in reversing the order of acquittal.

13. At this juncture it is necessary to record that the entire approach of the trial court and the findings recorded are totally perverse, they are in contradiction to the facts proved, serious injustice has occurred as a result of the perverse approach of the trial court and therefore all those findings are liable to be quashed and set aside.

14. It is an admitted fact that Jaishree was married to accused No. 4 four years before the incident. It is a fact proved on record that she reached at the house of the accused on 8.5.1988 by Vasant her brother and one or two of her relatives. She was welcomed in the house and immediately on the next day Vasant was informed that Jaishree was seen in a suspicion condition near the temple. Obviously and naturally Vasant rushed to see Jaishree, he found her near the temple of Dnyaneshwar and his words in the evidence are "She was behaving like a mad person. her all heirs were loose, her saree was torn, her blouse was also untidy and she was not recognising me. I brought her to my village Mahalunge and I took her to the police station" He lodged report Exhibit 28 and thereafter Jaishree was taken to doctors who examined her regarding her mental condition. P.W. 2 Dr. Rajendra Bhosale has been examined by the prosecution in this regard. he states in his evidence that on 8.5.1988 he examined Jaishree referred to him by the police along with yadi. She was not in a position to talk, she was talking irrelevantly. Doctor has further stated that she was not in a position to speak properly and was having some psychological problem. She was not in a position to understand the verbal commands, he therefore suggested her brother investigation and treatment.

15. Then the next witness P.W. 1 Dr. Hirachand Shah has stated that Jaishree was referred by Medical Officer, Ghodegaon. He examined her only for hysterical amnesia on 9.5.1988 and has stated she was completely in a stage of hysterical amnesia. She was not in a position to remember or recall anything. He treated her on 9th, 10th and 11th May 1988 as an outdoor patient. On 11.5.1988 she was seen improving but the treatment was continued upto 18.5.1988. He has further stated that this physical abnormality can be caused by some mental tension or anxiety.

16. Perversity that is committed by the trial court in appreciating the evidence and appreciating the facts is that if Jaishree was a totally normal and sane person and has lead four years happy married life with accused No. 1 and other accused persons then what happened in the night of 8.5.1988 that turned her into in an insane person with hysterical amnesia and in the condition which was noted by Vasant her brother which was reproduced by me above. The important aspect of the case, i.e. mental shock which Jaishree received and the further effects of the sad shock were totally lost sight of by the trial court even though all of them are proved to the hilt by the prosecution.

17. It is also pertinent to note at this juncture that even though Jaishree and Vasant were cross examined by and on behalf of the accused. Not a single question is put to either of them to disprove their evidence about mental condition of Jaishree. No such suggestion is put that Jaishree used to have similar attacks of hysterical amnesia during her married life of that she was a psychological patient sine before her marriage. Nothing of that sort is even remotely suggested to any of the important two witnesses, viz. Jaishree and Vasant.

18. That apart when all the five accused were examined by the trial court under Section 313 of the Criminal Procedure Code and when they were confronted with this mental condition and findings of doctors, they have no explanation to offer not even a slightest explanation nor any attempt to give explanation as to how a sane and sober woman could turn into an insane woman showing symptoms of hysterical amnesia soon after coming to the house of the accused No. 1. If the trial court had been alive and sensitive to the facts and circumstances the court could not have missed giving finding on this material aspect and vital aspect of the matter. This is the perversity in the approach and judgment of the trial court. The evidence of Jaishree and her brother Vasant, Dr. Shah P.W. 1 and Dr. Bhosale P.W. 2 about her mental condition during the period from 8.5.1988 till 15.5.1988 has totally gone unchallenged. It has therefore to be accepted as it is and the trial court had committed a grave error in not considering this evidence at all.

19. The investigation in this case is done by Village Police who have shown their awareness of the grave nature of the matter firstly by sending Jaishree to medical expert immediately upon Vasant lodging his report Exhibit 28. Thereafter when Jaishree regained consciousness, showed improvement and was in a position to understand what has happened around and was able to speak coherently and think properly, they also showed their concern by referring her to doctors before recording her statement i.e. FIR.

20. In this regard Mr. Abhale contended that if the rape is committed on the night of 8.5.1988 or mid night of 7th /8th May 1988 lodging of report on 15.5.1988 clearly indicated an inordinate delay. Findings of the trial court suggesting that there was ample scope for manipulation on the part of Jaishree are totally baseless and perverse. I do not find any substance at all in this submission. Jaishree received shock of her life on the night intervening 7th/8th May 1988. What happened on that night which will be separately discussed which has converted her from a sane to insane woman suffering from Hysterical Amnesia. Her brother noted her pitiable and miserable condition in the morning of 8.5.1988, he took her to his village, went to the police and as advised by the police, took her to doctor who treated her for hysterical amnesia. It was on 13.5.1988 that Jaishree started showing some improvement and then report is lodged on 15.5.1988 and therefore it cannot be said that there was any delay in this matter. The Police was also justified in referring her to Doctor before getting her statement about such serious allegations against five persons in family. Therefore the Police at village have done their duty most sincerely, honestly and after understanding the seriousness of the matter. This will be reflected in the manner in which investigation is made and detail recorded at the time of panchanama and seizure of clothes of Jaishree and that of the accused.

21. It stands proved beyond reasonable doubt therefore that when Jaishree came back to her husband i.e. in the house of the accused No. 1, the accused No. 1 was already married. There is also no cross examination to this aspect of the matter either to Jaishree or to Vasant, not even suggestion that accused No. 1 never entered into the second marriage and hence Jaishree came back. Accused No. 1 on that night initially was sleeping inside the house and Jaishree after having worked in the field, worked at home, went to sleep in the court yard along others. it is from this juncture that the story of rape begins.

22. According to Jaishree at about 1 O'clock her husband came, he gagged her mouth, tied her legs and hands and carried her on his shoulders to the agricultural land or farm of his own. Evidence of Jaishree in this regard is required to be seen. She has stated :

"He lifted me on his shoulders and took me away in his field. There is a mango tree. Below it he kept me and removed cloth ball from my mouth and asked me if I had brought Rs. 5,000/-. I answered in the negative. He also removed Mangal-Sutra and other ornaments from my person. Accused Nos. 2 to 5 also came there ....and they committed rape in succession."

She has given details as to who committed rape in what manner and what was being done by the other accused, all of which indicate that all the accused were not only witnesses of the gang rape but they had participated in the gang rape and helped each other in molesting their own member of family Jaishree. Then she says "I became suddenly unconscious and I regained consciousness after 4-5 days".

23. It is pertinent to note that even though Jaishree has given all these details as to the manner in which rape committed upon her by the accused, there is absolutely no cross-examination of Jaishree about the actual incident of rape by any of the accused. The place where the rape was committed manner or way the rape was committed, time, resistance, immediate behaviour of the accused all of them have been left untouched by the defence in the cross examination.

24. My attention in this regard was drawn by Mr. Abhale to the findings of the court that many persons were residing in the near vicinity and it was strange that nobody could come to the rescue of Jaishree nor anybody could hear her shouts. All the submissions are without any basis. They are in vein. It is not the case of the prosecution anywhere either in the FIR or in the evidence of Jaishree that she was raped in the court yard which was of the accused No. 1 which was surrounded by number of other houses. The case of the prosecution is that accused No. 1 lifted Jaishree on his shoulders and she was taken to the farm or agricultural land. Panchanama drawn in this regard by the prosecution, the place of offence being shown by Jaishree herself, clearly show that rape was committed at the place where there was no house at all. Panchanama i.e. proved is Exhibit 16 and it is stated in the panchanama as to the manner in which Jaishree led the police party to the scene of offence. The police started from the house of the accused. Jaishree has stated it is by the east way which is on the south side of the house of the complainant. Then they were taken to the west from the field of Baban Kondaji Gade and then near from the open shed of Bapusaheb Shankar Gade, by the footway from the ploughed land to the west at one furlong distance, by the side of Shendriya brook on the slope foot way. The complainant showed the place of offence. The boundaries of the scene of offence have been described in the panchanama to the east beyond the well there is a ploughed land of Shripati Ramchandra Gade, to the west there is shendriya brook flowing in north south direction beyond it there is yard of chas gaon. To the North beyond the pit there is ploughed land of Yeshwant Sakeleram Chikhale, to the South there is a ploughed land of Genu Gangaram Gade.

25. Firstly the panchanama is admitted by the defence. Secondly not a single question is put to Jaishree about the place of ghastly crime, thirdly the panchanama clearly show that there are no residence in the vicinity where the rape was committed. From where the trial Judge found that this is a place surrounded by the house of villagers and nobody coming forward to the rescue of Jaishree is only to be imagined, there being absolutely no foundation or source for the same.

26. It is therefore clear that the place of rape chosen by the accused is at a secluded place away from the village in his own agricultural land. The time chosen was being the mid night when everybody in the village was fast asleep, accused No. 1 forcibly taking Jaishree after gagging her mouth and then took her on his shoulder to the farm or agricultural land and then all the accused committed rape one after the other. Presence of any witness was not only impossible but even if Jaishree had shouted nobody would have come to her rescue because her shouts could not have fallen on anybody's ears. Therefore attempt of the trial court in seeking corroboration of such type from independent witness was totally futile, unjust and uncalled for in the circumstances.

27. I have already noted that not a single question regarding actual incident of rape was put to Jaishree in the cross examination. Nor even any suggestion in that regard nor any attempt to destroy her credibility was made nor any attempt to show that earlier also or in the past also she was suffering from hysterical amnesia and it was in the fits of hysterical amnesia that she had made such serious allegations against her in-laws.

28. Now it is necessary to consider what is the evidence that supports the case of prosecution about rape.

29. Mr. Abhale tried to repeatedly urged that the medical evidence does not support the story of rape. It is necessary to scan the evidence of doctor and the certificate issued by him and the attending circumstances in this regard.

30. The first report was lodged by Vasant on the same day when he found Jaishree in a hysterical condition. Obviously and naturally Vasant was not in a position by merely looking at his sister to judge and find out that she has been subjected to gang rape. He only found that her condition was abnormal and that may be due to some assault or beating by her husband. he therefore forwarded Jaishree to the police station, from police station she was referred to doctor for medical examination. Dr. Bhosale examined Jaishree on 8.5.1988 and issued certificate. he again examined her on 16.5.1988 for rape and issued certificate Exhibit 24 wherein Doctor has noted Jaishree's Vulva normal, no tear or abrasion or laceration, Vagina - Mucosa pinkish red - normal, no discharge thickened and wrinkled, Hymen - Torn as in married woman, Cervix - Norma, no discharge, Curunculae hymendes, no signs of information.

31. Mr. Abhale therefore contended that this report is in the negative. It does not support the case of the prosecution about rape. it is true that the doctor did not notice any signs of rape on the person of Jaishree but that cannot be treated as an end of the matter. This very Dr. P.W. 2 Bhosale had examined Jaishree on 8.5.1988 when she was referred to him as a hysterical amnesia patient. At that time he found following injuries on her person.

1. Contusion 4 x 2 cm. over the left thigh about 8 c.m. proximal to left knee.

2. Pain and tenderness over the back. shoulder region. No swelling. No bleeding.

Injury No. 2 was located because of the wincing of the patient on pressing the tender point. The injuries were less than 24 hours duration. They can be caused by a hard and blunt object. Thereafter doctor has opined these injuries can be possible if the sexual violence was done along with this patient on the rough surface, and again at the end of his examination in chief he has stated that in sexual offences, some symptoms of rape generally disappear within four days.

32. It has to be noted that on 8.5.1988 when Jaishree was produced before the doctor by Vasant is being referred to by the police was in a highly excited state of shock and she was suffering from hysterical amnesia. It is at this juncture that she complained of pain and tenderness over the back shoulder region. It is difficult to swallow the submission of Mr. Abhale that even in such stage of mental shock Jaishree was in a position to pretend that there was pain and tenderness over the back shoulder region. This clearly shows that pain and tenderness was there on the left shoulder and the back shoulder region when Jaishree was examined on 8.5.1988. Looking to the fact that rape was (Missing Line) this tenderness over the back shoulder region is the most natural consequence. The injury on thigh coupled with the opinion of the doctor that such injuries are possible if the sexual violence was done on the rough surface and the most important statement of the doctor is that in sexual offence symptoms of rape generally disappear within four days.

33. The most important thing that goes against the accused is the recovery of clothes on the person of Jaishree. Panchanama date 16.5.1988 of the recovery is at Exhibit 18. The panchanama has gone on record as an admitted document by the accused. There is therefore no question of challenging the veracity of the panchanama. Under this panchanama, three clothes were recovered from Jaishree, saree, petticoat and blouse. So far as saree is concerned, it is noted "To its below portion at one place on ft. straight torn." So far as petticoat is concerned, it is noted " "Seen torn straight from below till up and at about 5 inch portion..: As regards blouse it is noted "By the side of the second button hole to the left side as about 3 inch portion seen torn straight (horizontal) from the arm pit of right 5 leave till the arm portion seen torn. The right below front side seen torn..." Since there is no cross examination about the recovery of these clothes or even to the fact that these clothes were on the person of Jaishree at that time of rape it has to be held, which the trial court totally failed to consider, that these clothes were on the person of Jaishree when she was raped by all the accused. It is therefore clear that the medical evidence about the injury on thigh and tenderness of the back is supported by the three torn clothes all of which were on the person of Jaishree on that night.

34. Similarly in the same way clothes from all the five accused were recovered by the police as produced by them, as the clothes which were on their person at the time of the offence. This panchanama has also been proved and accepted as admitted by the accused, therefore there is no hesitation to hold that even the accused admit that these clothes were recovered from them were on their person at the time or on the night of 7th /8th May 1988. Now so far as accused No. 1 Ambarnath is concerned, pyjama was recovered from him, two buttons were missing or broken. Shirt of accused No. 2 Bapusahb was torn at the back side, the dhoti was torn at two places. As regards accused No. 3 Balu the pyjama was also having two broken buttons and it was a torn pyjama and on the shirt of accused Balu buttons were found missing or broken. Then about accused No. 5 Radhu, a separate panchanama was made were his clothes were also found torn.

35. When questioned in this regard Mr. Abhale tried to contend that Jaishree had worked in the agricultural land in the day and so also the accused were agriculturist doing different type of works in agricultural land or at home therefore there was nothing unnatural if all the three clothes of Jaishree i.e. saree, petticoat and blouse were torn and clothes of the accused were found as above. Ordinarily such an explanation could have become acceptable but looking to the allegations made by Jaishree condition of the clothes of all the accused, as noted above, strongly support the case of Jaishree about the gang rape.

36. The most important aspect of the matter is Jaishree has returned to the house of the accused No. 1 on the same day. She has lived four years happy married life of married life which came to her share. She has learnt that the accused No. 1 has remarried, she came to the house of the accused along with Vasant and other relatives and she was assured that she would be treated well. Therefore the crucial question is why in this background of the matter Jaishree would to the extent of levelling such charges against the accused. Mr. Abhale tried to contend that this was done by her with a view to take revenge from the accused as accused No. 1 entered into second marriage. This submission is nothing but an imaginative part with no link to the facts of the case established. a married woman cannot go to the extent of levelling such charges and then pretending that she was suffering from Hysterical Amnesia for about a week. Jaishree was examined and treated by two doctors. None of them state that Jaishree was pretending or her case of hysterical amnesia was fake one. There is no explanation from any of the accused, no suggestion and nothing in their statements on record by the court under Section 313 of Cr.P.C.

37. I tried to seek explanation from the Advocate of the accused that id Jaishree had been really suffering from Hysterical amnesia for eight days, what the accused were doing or had done in that regard. What steps they had taken to give her treatment or to show their concern about her health and welfare. Mr. Abhale could not point out anything in this regard because there is nothing on record of the trial court in thatregard No circumstances are on record which would suggest that accused had shown an concern about the serious mental condition of Jaishree.

38. Mr. Shringarpure APP relied upon the following Authorities in support of his contention:

(1) State of H.P. v. Gian Chand;

(2) 1996 Cr. L. J. 172B State of Punjab v. Gurmit Singh and Ors.

(3) 1981 Cri. L. J. 1 Harpal Singh and Anr. v. State of Himachal Pradesh.

As against this, Mr. Abhale relied upon the Judgment of the Supreme Court reported in :

(1) State of Karnataka v. Mapilla P. P. Soopi;

(2) Shingara Singh v. State of Haryana and Anr. WITH Suba Singh v. State of Haryana and Ors.

39. In judgment of State of H.P. v. Gian Chand the Supreme Court has dealt with number of important aspects of rape cases. However what was applicable to the present case the observation of the Supreme Court regarding delay to be found in paragraph 12 of the judgment.

"It is held that delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to 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 a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

40. In the Present case of Jaishree, firstly, there is no delay because Jaishree was raped on the night of 7the/8th May 1988. She suffered serious mental shock resulting in hysterical amnesia. She was found on 8.5.1988 morning by her brother Vasant, immediately taken to the police station for lodging the report of suspected assault by accused No. 1, then she was under treatment of the doctors for Hysterical Amnesia. On 14.5.1988 she regained consciousness then she was again subjected to medical examination about her fitness to give report and then on 16.8.1988 a report was lodged. There is therefore absolutely no delay and, if any, the same has been satisfactorily explained by the prosecution. In this judgment the Supreme Court has relied upon the law in the case of State of Punjab v. Gurmit Singh , wherein the Supreme Court has observed that:

"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may lock for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations...." (emphasis supplied)

The aforesaid observations aptly apply in the present case of Jaishree. Her evidence inspires confidence. The is nothing in the cross to doubt her integrity as a witness in court. She has not been dislodged from her testimony given in examination in chief at all. She has no motive of falsely implicating the accused in such heinous crime. The fact that she suffered serious and severe mental shock resulting in Hysterical Amnesia and was incapable of understanding anything that is happened to her or was happening to her for about a week, are all strong supporting circumstance that the crime complained of has taken place with her. Firstly, therefore, no corroboration is to be sought. It is there in the evidence of Vasant, evidence of recovery of torn clothes of Jaishree herself and those of the accused, her physical and mental condition when Vasant found her on 8.5.1988, lodging report by her, showing the scene of offence by her to panchas and the police party and the injuries suffered by her during the gang rape. All these circumstances not only lend assurance to her testimony but they strongly corroborate her case.

41. Other judgment relied upon by Mr. Shringarpure reported in 1996 Cri. L.J. 1728 State of Punjab v. Gurmit Singh and Ors. wherein also it is held "that delay in the lodging of the FIR can be due to variety of reasons and even it there is some delay in lodging the FIR in respect of the offence of rape but if it is properly explained and the explanation is natural such delay would not matter". This aspect has already been considered by me, as above. This judgment has also considered the aspect of corroboration to the testimony of the prosecutrix and it is observed by the Supreme Court in paragraph 7 as under :

"The Testimony of victim in cases of sexual offences 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 a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement 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 Court while appreciating the evidence of a prosecutrix may look for some assurance of a prosecutrix 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 leveled by her, but there is no requirement of law to insist upon corroboration of her statement of base conviction of an accused. 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. ......Corroborative evidence is not an imperative component of judicial credence in ever 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 given circumstances. 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. Inferences have to be drawn 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."

42. I have already discussed and held that the evidence of Jaishree inspires full confidence. There is absolutely nothing to cause any shadow of doubt about her testimony, she has not been cross examined at all in that regard. Apart from that the conduct and behaviour of the accused i.e. showing no concsern about her health and safety after she was found in the village in a condition of mental shock and found suffering from Hysterical Amnesia are all indicative of and supportive of the allegations made by her. The trial court appears to have looked at the evidence of Jaishree with suspicion for no reasons. The trial court drew inference which was totally unwarranted in the circumstances and which were contrary to the facts on record. The trial court failed to take into consideration the vital and important aspect of the matter and treated the case as if Jaishree was an accomplice. This approach is totally perverse.

43. Mr. Shringarpure, learned APP also relied upon the judgment of the Supreme Court reported in 1981 Cri. L. J. 1 Harpal Singh and another v. State of Himachal Pradesh wherein conviction of the accused by the High Court was challenged before the Supreme Court on the ground of delay of 10 days in lodging FIR and absence of injuries on the person of the victim. So far as delay is concerned the Supreme Court found that the delay of 10 days was satisfactorily explained and even though no injuries were detected on her private parts. It cannot be a case of consent because of the age of the girl was below 16 years.

44. In the present case of Jaishree, as observed by me, there is no delay and if at all there is a delay of eight days the same has been satisfactorily explained and absence of injuries of rape on the person of Jaishree is a natural she was examined after 7-8 days of the rape and the doctor has opined that signs of rape get lost after 4-5 days.

45. Mr. Abhale as against this relied upon the judgment of the Supreme Court State of Karnataka v. Mapilla P.P. Soopi. That was an appeal by the State of Karnataka to the Supreme Court against the order of acquittal. The High Court came to the conclusion that prosecution has failed to establish that P.W. 3 was a minor at the time of incident as also the factum of rape. The High Court also did not accept her evidence because if really incident had taken place as narrated by the victim the neighbours and others who were in the close proximity of the place where the incident had taken place could have rushed the \place of the incident to see the act of rape because of her cries. Since there was no such evidence led by prosecution the High Court held that the victim's evidence without further corroboration cannot be accepted.

46. This particular portion of the judgment of the Supreme Court was shown ad relied upon by Mr. Abhale, in support of his contention that if Jaishree was raped by five persons she could have raised shouts and the persons residing in the vicinity could have come to her rescue. This whole argument is fallacious. Jaishree was not raped anywhere in the locality or residential places. She was taken by the accused No. 1 on his shoulder to his own field around which there are no residential houses. She was gagged therefore she could not raise shouts and she was successively raped by five persons. Even if she had shouted nobody would have come to the rescue because she was raped in a dissolate place.

47. Mr. Abhale also relied upon the judgment of Supreme Court , in which the Supreme Court has given guidelines about the approach to be adopted while interfering with the order of acquittal. I have already discussed the judgment above but suffice it to say the Supreme Court in another judgment though earlier one of 1992 S.C.C. (Cri) 598 Madan Gopal Kakkad v. Naval Dubey and Anr. has held :

"That Section 378 of the new Code gives the High Court full power to review at large the evidence upon which the order of acquittal was founded. The whole case is at large for review by the High Court both as to the facts and the law. The High Court is clothed with the plenary powers to go through the entire evidence and to come to its own conclusions as warranted by the facts of the case concerned but, of course, subject to certain guidelines laid down by the judicial pronouncements. But however circumspect and cautious approach of the High Court may be in dealing with those appeals by exercising its plenary and unlimited statutory powers, the Court is to reach its own proper conclusions of guilt or otherwise of the indicted persons as the established facts warrant and to award appropriated sentence which will be commensurate with the gravity of the offence in case of convictions".

48. Mr. Abhale also tried to contend that if Jaishree has narrated this incident to her mother, then non examination of the mother by prosecution was sufficient to draw adverse inference against the prosecution. I do not find any force in this submission. It was not that Jaishree narrated incident to her mother only. In fact it was Vasant who was taking her care right from the beginning. It was he who had taken her to her husband's house, it was he who coming to know about the pitiable condition of Jaishree found her near the temple of Dnyaneshwar and it was he who took her to the police station and to the doctor for treatment. Therefore when Jaishree has narrated everything to Vasant then examination of mother as a witness was not at all necessary and non examination does not affect the prosecution case at all.

49. The version given by Jaishree is fully corroborated by vasant as to what was narrated to him regarding the incident of gang rape on the night of 7th/8th May 1988, therefore this is a case where the Judge has over looked all the vital and material aspects of the matter and acquitted the accused for the reasons which can only be called as a perverse.

38. Alternatively after making his submissions on merits, Mr. Abhale has also made submissions on the point of sentence though not admitting the guilt of the accused. His contention was that Jaishree has remarried and living happily with her husband and she has also taken sumptuous amount from the accused. Acquittal is of 1988 and therefore considering all the aspects minimum sentence be awarded and that accused were acquitted under section 494 and 498 and the case of bigamy and therefore minimum sentence in case accused are found guilty should be awarded. Mr. Abhale also tried to contend that Jaishree had made some affidavit supporting the aforesaid contentions.

50. Firstly, the submissions made by Mr. Abhale about Jaishree's affidavit cannot at all be considered or even touched because so-called affidavit is not forming part of the record of this case. Secondly, there is nothing on record to show that Jaishree was awarded sumptuously for settlement or for entering into second marriage. It is a fact that the acquittal is of 1988 and the accused have advanced in their age in the course of time, and one of them is more than 75 years of age. However punishment for gang rape is prescribed under Section 376(g) and it shall not be les than 10 years but which may be for life and shall also be liable to fine. Though powers are given to the court that for adequate and special reasons to be mentioned in the judgment impose sentence of imprisonment discretionary for a term less than ten years.

51. At this juncture reliance can be placed on the Judgment of the Supreme Court relied upon by Mr. Shringarpure reported in 1992 SCC (Cri) 598 Madan Gopal Kakkad v. Naval Dubey and Anr. wherein in paragraphs 57 and 58 the Supreme Court has observed as under :

"Though all Sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand."

52. It is true that Jaishree in this case the victim of gang rape was not a child. She was a grown up woman but she was subjected to such a heinous crime of gang rape by her in-laws which can shatter the faith of woman in close and intimated relationship. As rightly argued by Mr. Shringarpure the purpose of this gang rape was to eliminate in such a way that she does not remain a sane woman so as to able to offer resistance to the second marriage. The very fact that after this gang rape by close relations and respected relations like father in law, brother in law Jaishree become a patient of Hysterical Amnesia. It was her luck that even in that village she could get treatment for 8 days and she could regain her consciousness. If she had permanently become incapable the crime was forgotten and could not have seen the light of the day. The conduct of the accused can be aptly described as the conduct of lusty brutes who display the unscrupulous, deceitful and insidious act of committing gang rape of Jaishree when she had come to their house with all hopes of leading a married life with accused No. 1 even forgiving him for his second marriage, but in the night of 8.5.1988 was subjected to gang rape, therefore this is a case which requires severe punishment.

53. The only aspect that can be considered is that offence took place in 1986 and accused were acquitted in 1988. More than 16 years have passed. However, looking to the nature of the offence and the circumstances in which it was committed, I pass the following order :

ORDER

1. The Appeal is allowed.

2. The Judgment of the acquittal of the trial court of all the accused under Section 376(g) is quashed and set aside. All the accused are held guilty under Section 376(g) of I.P.C. and they are sentenced to suffer R.I. for seven years and fine of Rs. 2,000/- each in default of fine R.I. for one month. The accused are on bail throughout. Four weeks time is granted to the accused to surrender before the trail court.