Bombay High Court
Basudev Baburam Yadav And Ors vs The State Of Maharashtra And Anr on 10 March, 2016
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 472 OF 2010
WITH
CRIMINAL APPLICATION NO. 1475 OF 2015
IN
CRIMINAL APPEAL NO. 472 OF 2010
1. Basudev Baburam Yadav
2. Babulal Hansaram Gautam
3. Vikram Punwasi Sonkar
All R/o Shoharat Ali Godown,
Near Tol Naka, Govegaon,
Tal. Bhiwandi Dist. Thane .....Appellants
V/s.
The State of Maharashtra and another ....Respondents
Ms. Tanaya Goswami a/w Mr. Shailesh Kharat appointed Advocates
for Appellant Nos. 1 & 2.
Ms. Rupali M. Shinde, Appointed Advocate for Appellant no. 3.
Mrs. A. A. Mane APP for the State.
CORAM : SMT. SADHANA S. JADHAV, J.
DATED : MARCH 10, 2016.
JUDGMENT :
Appellants herein are convicted for offence punishable under section
366 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 3
years and fine of Rs. 5000/- in default to suffer simple imprisonment for 6
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months each. They are also convicted for offence punishable under section
376 (2) (g) of Indian Penal Code and sentenced to suffer rigorous
imprisonment for 10 years and fine of Rs. 30,000/- each in default to suffer
further rigorous imprisonment for one year. Appellants are also convicted for
offence punishable under section 506 of Indian Penal Code and sentenced to
suffer simple imprisonment for 6 months and fine of Rs. 1000/- in default to
suffer simple imprisonment for 6 months by Ad-hoc Asstt. Sessions Judge,
Thane vide Judgment and Order dated 15/05/2010 in Sessions Case No. 458
of 2008.
2) Such of the facts necessary for the decision of this appeal are as
follows:
(i) The victim was residing with P.W. 1 Shantabai Choure who happens to
be cousin aunt of the victim. On 06/09/2008, P.W. 1 lodged a report at
Shantinagar Police Station Bhiwandi alleging therein that she resides with her
family and the victim. Her husband happens to be a labour and the victim who
is aged about 16 years old is working as labour in the scrap godown of Hazrat
Sheth. Her daughters are also doing labour work at Gove Toll Naka.
(ii) According to the complainant on 04/09/2008 at about 9.00 a.m., all the
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three girls had left the house for their respective jobs. At about 5.00 p.m., all
the girls had returned home as usual. At about 5.00 p.m. victim had been to
Kongaon to fetch milk from the stall which was situated next to Ajit Petrol
Pump. She did not return for quite sometime and therefore they started
searching for her. Finally they lodged the missing report at Shantinagar Police
Station which was registered as Missing Report No. 62 of 2008. They
continued to search her. At about 9.00 p.m. the victim was spotted passing
from the Kongaon Goa Naka. Complainant called her. As soon as the victim
saw the complainant, she started crying. Upon enquiry, she informed the
complainant that when she had been to fetch milk near Ajit Petrol Pump, three
boys (Present Appellants) who were working in the adjoining scrap godown
met her. Basudev asked her whether she would marry him. She refused. When
she was proceeding further, all the three accused came in an auto rickshaw
and pulled her in the auto. They left the rickshaw near Vidyamandir.
Thereafter, Vikram and Babulal had gagged her mouth and had held her. They
had taken her behind the school. Despite her resistance, they all ravished her.
Then they gave her Rs. 100/-. They threatened her of dire consequences.
(iii) On the basis of the said report, crime no. 268 of 2008 was registered
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against the accused/appellants for offence punishable under sections 363, 366
(A), 376 & 506 of Indian Penal Code.
(iv) After completion of investigation charge-sheet was filed on 21/03/2009.
Case was committed to the court of Sessions and registered as Sessions Case
No. 458 of 2008. Prosecution examined 7 witnesses to bring home the guilt of
the accused.
3) Case rests mainly on the evidence of P.W. 1 Shantabai who happens to
be the first informant and maternal aunt of the victim, P.W. 2 the victim, P.W.
5 Medical Officer and P.W. 7 who happens to be Investigating Officer.
4) P.W. 1 Shantabai has deposed before the Court in accordance with the
F.I.R. lodged by her. F.I.R. is marked at Exhibit 10.
5) It is elicited in the cross-examination that P.W. 1 was not acquainted
with the accused. The milk vendor stays near Ajit Petrol Pump and the
complainant resides with the victim behind Royal Petrol Pump at village
Gove. There are shops in village Gove also. Ajit Petrol Pump is at distance of
15 minutes from the house of the victim and is situated at Kongaon. That
Kongaon and Govegaon are distinct villages. It takes 10 minutes to reach
Kalyan railway station from Ajit Petrol Pump. It is specifically admitted in the
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cross-examination by P.W. 1 that victim returned home after 28 hours. The
victim had disclosed to P.W. 1 that she had stayed at Kalyan railway station
for the whole night and was wandering in Kalyan city during the whole night.
That she was having injuries on her both hands.
6) P.W. 2 the victim has deposed before the Court that she was working as
labour in a godown. Accused were also working there. She has deposed
before the court that she had returned home from work at 5.30 p.m. on
04/09/2008. She had been to Kongaon to bring milk. She did not get milk
there and therefore she returned home. She then reached near Atgaon road.
Accused no. 1 was standing on the road. He had called her by name Ashwini.
According to her, she is also known as Ashwini. He had taken her by the side
of the road and proposed to her. She had denied the proposal. He had again
offered her that he would marry her and take her to his village. At that
juncture, other 2 accused who were standing near the gate approached her.
They gagged her mouth. She had attempted to raise cries, however, they
threatened her. They had taken her near the school and thereafter she was
ravished by all three accused persons. She then went to Kalyan by rickshaw.
She stayed at Kalyan throught the night. She had no money to go to her
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village. She then went to Govenaka by bus and proceeded to the petrol pump.
She met her maternal aunt near the petrol pump and thereafter she had
disclosed the incident to P.W. 1 who happens to be her aunt.
7) In the cross-examination, she has admitted that after she was left by the
accused, they did not follow her to Kalyan and then she returned to Kongaon
on the next day. She has also admitted that she was taking education in
Ashram Shala Kalyan for 2 years when she was studying in 5 th & 6th standard.
She was aware that she could reach Kongaon by bus from Kalyan. That she
was sitting at Kalyan railway station since evening. Kalyan railway station is
a junction. It is also admitted that she had seen the police on Kalyan railway
station. She had not disclosed the incident to the police nor to the public on
railway station. She had never been to Beed alone prior to the incident. She
did not have any difficulties to reach Kongaon to Kalyan on the next day in
the morning. She was at Kalyan railway station on the next day evening. She
has also admitted that there are several milk shops in Govegaon. Atgaon
school where she was ravished is at distance of 5 to 10 minutes walk from
Kalyan. School was having holidays at that time. That she had sustained
injuries on her back during the incident as well as on her elbows. She had
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shown the injuries to the doctor when she was examined. An omission is
elicited that she had disclosed to the police that she was taken in the rickshaw,
however, the same does not find place in her statement under section 161 of
Code of Criminal Procedure, 1973.
8) P. W. 3 Mohd. Yunus is the panch for spot Panchanama. It is elicited in
the cross-examination that at the time of conducting spot Panchanama no
other person had acted as a panch. It is also admitted that victim, police and
P.W. 3 were the only persons when the spot Panchanama was prepared. P.W. 4
Popat Rokade is the panch for seizure of clothes of the victim. Their evidence
in the present case need not be discussed.
9) P.W. 5 Dr. Arti Dixit is Medical Officer who has examined victim on
06/09/2008. She has deposed before the court that according to the police
officer and the complainant the victim was subjected to gang rape. She
examined the victim. She did not find any external injury. Vulva of the victim
was swollen, reddish. There was a fresh tear of hymen. Medical certificate
issued by P.W. 5 is marked at Exhibit 26. In the cross-examination, P.W. 5 has
admitted that certificate Exhibit 26 is prepared from the notes in MLC
register. There is no communication in the medical certificate that the victim
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was subjected to forcible intercourse. The ossification test of the victim was
not conducted. Two finger test was conducted, however, there is no reference
to it in the certificate or in the MLC Register. P.W. 5 has further admitted that
the possibility that the vulva is reddish and swollen due to unhygienic
condition cannot be ruled out. P.W. 5 has further defined fresh injury as an
injury which is normally within 6 hours prior to the examination. P.W. 5 did
not observe any traces of injury on the back or elbow of the victim, neither
there were any external injuries on her person. She did not notice any signs of
mud on her body. She has further admitted that in case where victim is
subjected to forceful intercourse by 3 to 4 young persons, there may be
internal injuries, however, in the present case, she did not find any such
injuries.
10) Medical certificate is at Exhibit 26. The same has been admitted in
evidence. It is a matter of record that the victim was examined by P.W. 5 on
06/09/2008 at about 2.30 p.m. The date of incident is 04/09/2008 between
5.30 p.m. to 7.30 p.m. Suffice it to say that as defined by P.W. 5 the injuries
observed on the private parts of the victim cannot be said to be fresh injuries
as she had been examined almost after 45 hours. The proforma of medical
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examination, coloumn no. 10 also shows over writing as far as date is
concerned wherein 05/09/2008 has been re-written as 04/09/2008. The
proforma shows that the blood grouping was done, however, it is clear that
from the evidence of P.W. 5 that Medical Officer had not taken the blood
sample of the victim.
11) P. W. 6 Dinkar Patil is a hostile witness.
12) P.W. 7 Janardan Babar is the Investigating Officer. According to him,
on 06/09/2008 P.W. 1 had lodged the report. Offence was registered and the
investigation was handed over to him. He had taken the steps for investigation
and had filed the charge-sheet. C.A. Report is at Exhibit 35.
13) In the cross-examination, it is elicited that father of the victim resides in
Beed District and his statement has not been recorded. Investigating Officer
had not called for birth certificate from Grampanchayat Jeevachiwadi where
the victim was born. That the victim was learning in Ashram School at
Kalyan. Investigating Officer had not issued any letter to school for obtaining
the birth certificate or the school leaving certificate. He had not requested the
Medical Officer to conduct ossification test in order to ascertain her age. It is
also admitted that incident has occurred in the rainy season and there was
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mud and soil at the spot of incident. The clothes seized from the victim did
not have any marks of mud or soil. It is also admitted by P.W. 7 that he had
not recorded statements of any person from Kalyan station.
14) Exhibit 35 is the Chemical Analysis report of the victim. The report
shows that on 19/09/2008 two phials were received for analysis. The result of
analysis is that no semen was detected on Exhibit 2 & 3. Exhibit 2 is the
vaginal swab and Exhibit 3 is pubic hair.
15) The Jurisprudence contemplates that in a case under section 376 of
Indian Penal Code the uncorroborated testimony of the prosecutrix can be
relied upon provided that :
(i) It is a sterling testimony (ii) It appears to be truthful (iii) and would
inspire the confidence of the Court.
16) In the case of Sadashiv Ramrao Hadbe vs State of Maharashtra
And another reported in (2006) 10 SCC 92, the Hon'ble Apex Court
observed as follows:
"It is true that in a rape case the accused could be convicted on the
sole testimony of the prosecutrix, if it is capable of inspiring of
confidence in the mind of the court. If the version given by the
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prosecutrix is unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and belie the case
set up by the prosecutrix, the court shall not act on the solitary
evidence of the prosecutrix. The courts shall be extremely careful in
accepting the sole testimony of the prosecutrix when the entire case is
improbable and unlikely to happen."
17) In the present case, the evidence of the victim does not appear to be
truthful and therefore, would not inspire the confidence of the court. In the
present case, the victim admits that there are several milk shops in Govegaon.
15 to 20 minutes are required by walk from Govegaon to petrol pump of
Kongaon. That she had been all the way to Kongaon to bring milk. She has
deposed before the Court that when she did not get milk at Kongaon, she had
returned home but had gone to Atgaon road. That the accused no. 1 was
standing on the road. There was no reason for the victim to go to Atgaon road.
It is not her case that she could not get milk at Govegaon. It is further
pertinent to note that accused persons had not kept the victim under detention
not had restrained her from moving freely. That instead of going home, victim
had gone to Kalyan all the way by rickshaw. She stayed at Kalyan station for
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the whole night. According to her, she has no money to go to Govenaka by
bus and therefore, she walked down to the petrol pump where she was spotted
by P.W. 1. No reason is assigned for not returning home. She has neither
deposed before the court that due to the said trauma, she was in such a state of
mind that she could not go home. Accused had not followed her. Moreover,
her oral version is not corroborated by medical evidence. F.I.R. was lodged by
P.W. 1 on the basis of hearsay statement of the victim. It cannot be ignored
that the victim was acquainted with all the accused.
18) It is in these circumstances that evidence of the victim does not appear
to be of a sterling nature and therefore does not deserve to be relied upon.
19) On 03/03/2016, learned APP had filed report on record showing that
original accused no. 3 had undergone substantive sentence of 9 years 1 month
and 19 days. Accused nos. 1 & 2 had in fact filed an application to withdraw
the appeal as they accepted the conviction. However, the said application was
rejected on 28/10/2015.
20) Learned counsel appointed for the appellants submits that accused nos.
1 & 2 had been misguided by the jail mates that appeal would not be heard in
the near future and that the possibility of enhancement of sentence cannot be
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ruled out.
21) In the facts and circumstances of the case, accused who have almost
undergone the whole of the substantive sentence of 10 years, deserve to be
acquitted.
22) This Court cannot part with the Judgment without recording
appreciation for the learned counsel appointed for the appellants. Legal fees
to be paid by the High Court Legal Services Committee to the appointed
Advocates is quantified at 2,000/- each, to be paid to them within three
months from today.
ORDER
(i) Appeal is allowed.
(ii) The conviction of the appellants for the offence punishable under
Sections 366, 376 (2) (g) and 506 of the Indian Penal Code recorded by the
Ad-hoc Asst. Sessions Judge, Thane, vide Judgment and order dated
15/05/2010 is hereby quashed and set aside.
(iii) The appellants are acquitted of all the charges levelled against them.
(iv) The appellants be set at liberty forthwith, if not required in any other
offence.
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(v) Fine, if paid be refunded to them.
(vi) The professional fees of the Advocates so appointed are quantified to
the tune of Rs. 2,000 (Rupees two thousand only) each, to be paid to them
within three months from today.
23) Appeal stands disposed of accordingly. As the appeal is disposed of, the
Criminal Application does not survive and stands disposed of accordingly.
ig (SMT. SADHANA S. JADHAV, J.)
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