Bombay High Court
The State Of Maharashtra vs Ramchandra Sambhaji Karanjule on 11 March, 2016
Bench: Ranjit More
Conf 3-13 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO.03 OF 2013
The State of Maharashtra .. Appellant
v/s.
Ramchandra Sambhaji Karanjule ..Respondents
WITH
CRIMINAL APPEAL NO. 426 OF 2013
Ramchandra Sambhaji Karanjule
ig .. Appellant
v/s.
The State of Maharashtra . ..Respondents
WITH
CRIMINAL APPEAL NO. 416 OF 2013
Prakash Vithal Khadke .. Appellant
v/s.
The State of Maharashtra . ..Respondents
WITH
CRIMINAL APPEAL NO. 452 OF 2013
Khandu Nanaji Kasbe @ Deepak Mayekar .. Appellant
v/s.
The State of Maharashtra ..Respondents
WITH
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CRIMINAL APPEAL NO. 508 OF 2013
Sonali Mohan Badade .. Appellant
v/s.
The State of Maharashtra ..Respondents
WITH
CRIMINAL APPEAL NO. 528 OF 2013
Nanabhau Laxman Karanjule .. Appellant
v/s.
The State of Maharashtra ..Respondents
ig WITH
CRIMINAL APPEAL NO. 600 OF 2013
Parvati Shamsunder Mavale .. Appellant
v/s.
The State of Maharashtra ..Respondents
WITH
CRIMINAL APPEAL NO. 896 OF 2014
The State of Maharashtra .. Appellant
v/s.
Nanabhau Laxman Karanjule & Ors. ..Respondents
WITH
CRIMINAL APPLICATION NO. 191 OF 2014
IN
APPEAL 452 OF 2013
Khandu Nanaji Kasbe @ Deepak Mayekar .. Appellant
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v/s.
The State of Maharashtra ..Respondents
Ms. Rohini Salian Spl.PP for the State in Confirmation Case No.3 of
2013
Smt. V.R.Bhosale, APP for the State in Criminal Appeal 896 of 2014
Mr. Mahesh Vaswani a/w. Niranjan Mundargi, Ms. Dharini Nagda, Ms.
Anushree Kulkarni, Ms. Lata Shanbhag, Ms. Shama Mulla, Mr.
Vikram Ssutaria, Mr. Omkar Mulekar and Mr. Shishir Hire for the
Appellant- Ramchandra Karanjule in Apeal 426 of 2013 and in Conf.
Caase 3 of 2013 for the Respondent.
Mr. Jagdish Shetty for the Appellant in Criminal Appeal No. 528 of
2013.
Miss. Anjali Patil for the appellant in 416 of 2013 and 452 of 2013.
Miss. Shweta Sangtani for the Appellant in Appeal No. 508 of 2013.
Mr. Prashant Aher for the appellant in Appeal 600 of 2013.
CORAM : RANJIT MORE &
SMT. ANUJA PRABHUDESSAI, JJ.
RESERVED ON : MARCH 02, 2016
DATED : MARCH 11, 2016.
JUDGMENT (PER ANUJA PRABHUDESSAI, J.).
1. These appeals challenge the impugned the judgment and order
dated 21.3.2013 passed by the learned Addl. Sessions Judge, Greater
Bombay in Sessions Case No. 688 of 2011, whereby the learned Addl.
Sessions Judge acquitted the Respondents in Appeal No. 896 of 2015
and convicted and sentenced the Appellants in Criminal Appeal Nos.
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416 of 2013, 426 of 2013, 452 of 2013, 508 of 2013, 528 of 2013 and
600 of 2013 as under:-
Ac. Name of Charged Convicted for offence Acquitted for offence.
No. accused for and sentence.
offence
under
sections
S. 302 302 r/w.s. 23 of JJ Act.
Death
S. 307 7 Yrs RI & fine
Rs.2000 i/d 3 months
SI.
S.376 (2) Life imprisonment &
(c) fine of Rs.5000 i/d 1
yr. SI
S. 376(2) Life imprisonment fine
(g) of Rs.5000 i/d 1 yr.SI
S.377 10 years RI fine of S. 376 (2) (c) r/w.s.
3000 i/d 6 months SI. 109 r/w. 34, 467, 468,
Ramchandra S. 324 471 r/w.s. 34 of the
3 years RI and fine of
1. Sambhaji Rs. 1000 i/d. 1 month IPC
Karanjule
SI
S.506 (2) 3 years RI & fine of
Rs.1000 i/d. 1 month
SI
S.23 of 6 months RI
J.J. Act.
S.25 of 3 years RI & fine of
of J.J. Rs.2000 i/d. 2 months
Act. r/w. SI.
34 of the
IPC
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Ac. Name of Charged Convicted for offence Acquitted for offence.
No. accused for and sentence.
offence
under
sections
2 Nanabhau S.354 of 2 yrs RI & fine of S.376(2) (c) r/w.s. 109
Laxman the IPC Rs.5000/- i/d. 1 month r/w/s.34, 376(2) (c), 377,
Karanjule SI. 324, 467, 468, 471 r/w.s.
34, of IPC & S. 23 of
J.J.Act & S. 25 of J.J. Act
r/w.s. 34 of the IPC.
S. 376(2) Life imprisonment &
(g) of fine of Rs.5000/- i/d. 1
IPCig year SI.
Khandu
Nanaji Kasbe S. 376, 377, 324 of IPC
3 S. 25 of 3 yrs. RI & fine of
@ Deepak & S. 23 of J.J.Act.
J.J. Act Rs.2000/- i/d. 2
Mayekar
r/w.S.34 months SI.
of IPC
4 Prakash S. 376 Life imprisonment & S. 376 (2) (c), 377, 324 of
Vitthal (1) of fine of Rs.5000/- & the IPC & S. 23 of J.J.Act.
Khadke IPC i/d. 1 year SI
5 Smt. Kalyani S.376 (2) S. 376(2) (c) r/w. 109
Ramchandra (c) (g) r/w.S. 376 (2) (g)
Karanjule @ r/w. S. r/w.s.109, 377 r/w.s. 109,
Kalyani 109, 377, 467, 468, 471 r/w.s. 34 of
Shailesh 467, 468, IPC & S. 23 of J.J.Act.
Sarode 471 r/w.
34 IPC
& S.23
of JJ Act.
6 Ms Sonali S.307 7 yrs. RI & fine of
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Ac. Name of Charged Convicted for offence Acquitted for offence.
No. accused for and sentence.
offence
under
sections
r/w. 34 Rs.2000/- i/d. 3
of IPC months SI
S.324 of 1 Year RI & fine of
IPC Rs.500/-i/d. 1 month's
SI
S.376(2) 10 Yrs.RI & fine of
(c) r/w. Rs.2000/- i/d. 3
S.109 of months SI
Mohan IPC
Badade
S.376 (2) 10 Yrs. RI & fine of
(g) r/w. Rs.2000/- i/d. 3
109 of months SI.
IPC
S.377 1 year RI & fine of
r/w. S. Rs.300 i/d. 1 month's
109 of SI.
IPC.
S. 23 of 3 months RI
J.J. Act-
7 Dhirubhai Under S.324 & 354 of IPC
Arjun sections
Limbani @ 324 and
Chanewalaba 354 of
ba the IPC.
8 Narendra Under S.324 & 354 of IPC
Ramniklal sections
Mehta @ 324 and
Babadas 354 of
the IPC.
9 Ms Surekha 376(2)(c) S. 376(2) (c) r/w.s. 109
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Ac. Name of Charged Convicted for offence Acquitted for offence.
No. accused for and sentence.
offence
under
sections
Ramchandra (g)r/w. r/w.s. 376(2) (g) r/w.s.
Karanjule sec. 109, 109, 377 r/w.s. 109 of IPC
377, 467, & S. 23 of J.J. Act.
468, 471
r/w. 34
IPC and
Sec.23 of
J.J.Act.
S. 304 5 yrs. RI
Part II of
IPC.
S. 324 of 1 yr RI with fine
IPC Rs.500 i/d/ One month
SI
S.376(2) 10 yrs RI with fine
Smt. Parvati (c),r/w. Rs.2000/- i.d. SI 3 S.302 of IPC r/w.s.23
10 Shamsundar 109 IPC months of J.J. Act & S. 25 of
Mavle 376(2) J.J. Act.
(g),r/w. 10 yrs RI with fine
109 IPC Rs.2000/- i.d. SI 3
months
Sec. 377
r/w. 109 1 yr RI with fine
IPC Rs.300/- i.d. SI one
months
S.23 of
JJ Act. 3 months RI.
2. Being aggrieved by the conviction the Appellants-accused have
filed Criminal Appeals No. 416 of 2013, 426 of 2013, 452 of 2013,
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508 of 2013, 528 of 2013, 600 of 2013 while Confirmation Case No. 3
of 2013 arises from the statutory reference under section 366 of Cr.P.C.
for confirmation of the death sentence. The state has also challenged
the acquittal of the accused Nos.2-Nanabhau Karanjule, accused no.5
Smt. Kalyani Karanjule, accused no.7 Dhirubhai Limbani @
Chanewala, accused no. 8 Narendra Mehta @ Babadas and accused no.
9 Ms. Surekha Karanjule in Criminal Appeal No.896 of 2014.
3.
The facts and circumstances giving rise to these appeals are as
under:
In the month of October 2010, Mumbai Mirror, a local daily
carried a news report exposing pitiable condition of the children in
children homes in the State. Taking cognizance of the said news
report, this court vide Suo Moto Public Interest Litigation No.182 of
2010 appointed the Maharashtra State Co-ordination Committee for
Child Protection, headed by Professor Asha Bajpai, to assist and
review the quality of care management in children home across the
State of Maharashtra. Seven regional committees were also set up to
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inspect the homes for mentally challenged children, and these
committees were required to submit their report to the Chairperson of
the State Committee.
4. P.W.3- Naina Athale, Asst. Professor at Tata Institute, P.W.5-
Deepali Bhattacharya, Associate General Manager of CRY, P.W.-11-
Dr. Harish Shetty, Psychiatrist, and some other members of the said
committee inspected Kalyani Mahila Balkalyan Seva Sanstha,
(hereinafter referred to as Kalyani Sanstha), a home for the mentally
challenged girls, situated at Khanda Colony, New Panvel, District
Raigad. The said Kalyani Sanstha was registered under the Public
Trust Act, as well as with the Women and Child Department. The
accused no.5 Kalyani Karanjule @ Kalyani Sarode was the President
whereas the appellant-accused no.1 Ramchandra Karanjale and his
wife Surekha were the directors of the said Sanstha wherein Nineteen
mentally challenged girls were housed.
5. The Committee verified the records of the Sanstha and interacted
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with the children. They observed gross mismanagement in the affairs
of the Sanstha and suspected physical and sexual harassment of the
girls and accordingly submitted a report to the Chairperson of the said
committee. The Committee also directed the Child Welfare Committee
(CWC), Raigad and the Child Welfare Officer, Alibag, to visit and
verify the condition of the said sanstha.
6. On 28th February, 2011, P.W.1, Neela Tulpule, the President of
Child Welfare Committee, Raigad, and P.W.10 -Dattatray Vasudeo
Kuvlekar, Probation Officer at Zilla Raigad in the office of District
Women and Child Development, Alibag, and other officers from the
Child Welfare Office, Alibag and District Women and Child
Development Office, Alibag-Raigad, visited the said Sanstha. These
members too noticed mismanagement of the Kalyani Sanstha and
suspected sexual abuse of the children.
7. On 2nd March, 2011, they referred the girls to the Rural Hospital,
Panvel for medical examination. P.W.4 Dr. Swati Naik examined the
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girls and reported that some girls were habituated to sexual intercourse.
The medical report confirmed her suspicion hence, PW1 Neela
Tulpule, shifted the girls to Mahila Sanstha, at Karjat.
8. On 4th March, 2011, P.W.1-Ms. Tulpule, lodged the FIR Ex. 41 at
Kalamboli Police station, pursuant to which PW14 -PSI Sanjay Shukla
registered C.R. No.125 of 2011 against the accused for offences under
Sections 376, 109, 114 of Indian Penal Code.
9. The Investigating Officer, PW14-PSI Sanjay Shukla, visited
Kalyani sanstha, and conducted the panchanamas dated 4 th March,
2011 and 6th March, 2011 at Exhibit 82 and 52 respectively and seized
some files/registers, laptop etc from the said sanstha. He arrested the
accused and sent them for medical examination. Further investigation
was entrusted to P.W.21 Dr. Rashmi Karandikar.
10. PW6 Dr. Archana Singh, Psychiatrist attached to Govt. Hospital
Alibag and PW7-Sunanda Tarte, a teacher at the Indian Council for the
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Mental Health interacted with the victim girls and assisted the
Investigating officer in recording the statements of the victim girls
under section 161 and 164 Cr. PC. PW12 Dr. Rajesh Sukhdev and
PW13 Dr. Padmaja Samant, Medical Officers of JJ hospital medically
examined the victim girls and submitted the reports at Exh. 100 to 117
colly. The medical reports revealed that the girls were subjected to
severe physical and sexual abuse. Upon completion of the
investigation, PW21 Dr. Rashmi Karandikar, IO, submitted the charge
sheet before the competent court which in turn committed the case to
Sessions Court, Gr. Bombay at Mumbai. These in short are the sordid
facts of the case.
11. Charge was framed against the appellants-accused initially for
the offences under Sections 307, 376 (c), 377, 354, 324, 323 , 467,
468, 471, 109, 114 r/w. 34 of the Indian Penal Code and Section 23,
25, 28 of the Juvenile Justice (Care and Protection of Children ) Act,
2000. The accused pleaded not guilty and claimed to be tried. The
prosecution to substantiate the charges examined 22 witnesses.
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12. On 29th October, 2012, based on the testimony of PW17 and 18,
the learned Judge framed additional charge under Section 302 of the
Indian Penal Code, for committing murder of Seeta, one of the inmates
of the Sanstha. The accused pleaded not guilty to the said additional
charge. After recording of the further evidence, the accused were
examined under Section 313 of Cr.P.C. The defence of the accused is
of total denial and false implication.
13. The Accused No.1 filed his written statement under section
233(2) of Cr.P.C. (Exh. 223) wherein he claimed that the row house at
Khanda colony was given on rent to Anand Mahila Sanstha which was
running a children home since 2006. The Accused No.1 claimed that
Kalyani Sanstha was not housed at Khanda Colony and that the
mentally challenged children were not transferred to Kalyani Sanstha
during the relevant period. He claimed that the entire case against him
was fabricated.
14. The accused No. 9 Surekha examined herself as DW3. The
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accused examined DW2 Dr. Ravindra Chavan, DW5 Dr. Vijay Juvekar
and DW6 Dr. Vinayak Sawarkar, the Medical
Officer/Associate/Assistant Professors at J.J. Hospital who had treated
Seeta. The accused also examined DW1 Ramesh Gupta one of the
trustees of Ramanand Charitable trust and in addition the accused
examined D.W.4 Mandakini Misal, the owner of the premises and
DW7 Dnyandev Gawhane the District Probation Officer, Alibag -
Raigad.
15. Upon considering the evidence on record and hearing the learned
Special APP for the State and the learned counsels for the accused, the
learned Sessions Judge held the Accused nos.1, 2, 3, 4, 6, and 10
guilty and convicted and sentenced them as stated above. The accused
as well as the State have preferred appeals against conviction/acquittal
whereas the confirmation case arises out of the statutory reference.
16. Arguing in support of confirmation, Ms.Salian, the learned
Special PP has submitted that the evidence on record amply proves that
the accused no.1 was running an orphanage for mentally challenged
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girls. She has further submitted that the testimony of PW17 and PW18
amply proves that one of the inmates by name Seeta had expired while
she was in the custody of the accused no.1. She has submitted that the
evidence of PW17 and PW18 amply proves that the accused had
assaulted Sita while she was in his custody. The learned Special PP
further submitted that the appellant had failed to provide her proper
nourishment and treatment and beat her despite knowing that she was
suffering from tuberculosis. The learned SPP APP submits that the
term 'act' also includes omission. She submits that the accused no.1
caused the death of Sita, one of the inmates of Sanstha, by several acts
of omission and commission, enumerated by the learned judge in the
judgment. The learned Spl. PP contends that the evidence adduced by
the prosecution leaves no doubt about the complicity of the accused in
committing the said crime.
17. Shri Vaswani, the learned counsel for the accused No.1 as well as
Shri Aher, the learned counsel for the accused No.10 have submitted
that there is absolutely no evidence to prove that the death of Seeta was
homicidal. They have submitted that the learned Judge has held the
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accused guilty of offence under section 302 and 304 without there
being any substantive evidence and that the findings and the reasons
are totally perverse and illegal.
18. The question which arises for our consideration is whether the
prosecution has established beyond reasonable doubt that the accused
no.1and 10 had committed murder/ culpable homicide not amounting
to murder of Seeta, an inmate of the Sanstha.
19. The evidence on record indicates that in view of the direction
given by this court in PIL No.182 of 2010, PW3 Naina Athale, PW5
Deepali Bhattacharya and the other members of the Committee had
inspected Kalyani Sanstha, on 15th February, 2011and 22nd February,
2011. The Committee Members noticed several irregularities in the
affairs of the Sanstha and suspected that the girls were physically and
sexually abused. They submitted the report (Exh.58) to the Chair
Person, Ms. Asha Bajpai and further directed the member of the
Children Welfare committee Raigad to visit the said Sanstha and to
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verify the facts.
20. Pursuant to the directions given by the Committee, PW1 Neela
Tulpule, the President of Children Welfare Committee, Raigad, and
PW10 Dattatray Kurlekar, the Probation Officer, and the other
members of District Women and Child Development, Alibag, visited
the said Sanstha on 28.2.2011. They interacted with the children and
suspected that the children were sexually abused. The suspicion was
confirmed by the medical report given by PW4 Dr. Swati Naik, the
medical officer, Rural Hospital, Panvel. PW1 Neela Tulpule, therefore
lodged the FIR at Exh.-41, pursuant to which, Crime No.125 of 2011
was registered against the accused for offences under sections 376,
109, 114 and after recording the statements of the witnesses and
completing all the formalities, the investigating agency laid the charge
sheet for the offences under sections 307, 376 (c), 377, 354, 324, 323 ,
467, 468, 471, 109, 114 r/w. 34 of the Indian Penal Code and Section
23, 25, 28 of the Juvenile Justice (Care and Protection of Children)Act,
2000. Upon committal of the case, the learned Sessions Judge framed
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the charge against the accused for the offences under Sections 307, 376
(c), 377, 354, 324, 323 , 467, 468, 471, 109, 114 r/w. 34 of the Indian
Penal Code and Section 23, 25, 28 of the Juvenile Justice Act, 2000.
21. It is thus evident that the Report at Exh. 42, the FIR at Exh.41 as
well as the Report filed under section 173 Cr.PC did not indicate that
the accused were responsible for causing death of Seeta and
consequently the accused were not charged for committing offence
under section 302 of the IPC. The learned Sessions Judge had suo-
moto added the said charge on the basis of the testimony of PW18 and
PW19, which according to the learned Judge revealed that death of
Seeta was homicidal and was caused by the accused.
22. It is pertinent to note that 19 witnesses were already examined
before framing of the charge under Section 302 of the Indian Penal
Code. The learned Judge had not recalled the said witnesses including
P.W.18 and P.W.19 based on whose testimony the said additional
charge was framed. Consequently, the accused were not given an
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opportunity to cross-examine these witnesses on the additional charge.
The learned judge, in violation of the basic cardinal principle, has
relied upon and has held the accused no1 and 10 guilty of offence
under section 302 and 304 IPC on the basis of the untested testimony
of these witnesses.
23. Be that as it may, PW18, had deposed that "Earlier Seeta was in
good health. Ramchandra and Aaji used to beat her. She became weak
and one day she died. She was taken somewhere and they dumped her
body somewhere." In her cross examination she has stated that
"Ramchandra and Mavle Aaji beat Seeta (gesture of beating). She died
(gesture of sleeping) then her body was wrapped in cloth and taken
somewhere. Mavle Aaji used to beat the girls." PW19, in answer to
question no.28 had deposed that "Papa (A1) killed Seeta, Seeta was
taken to the hospital. I saw that with my eyes".
24. Apart from the aforesaid evidence of these two witnesses there is
absolutely no other evidence to prove that the accused nos.1 or 10 had
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inflicted any such injuriy on Seeta as to cause or likely to cause her
death. On the contrary, the evidence of DW2 Dr. Ravindra Chavan the
medical officer attached to J.J.Hospital, Mumbai, indicates that Seeta
was admitted in J.J.Hospital on 24th April, 2006 with history of pain in
abdomen for 15 days and stiffness of knee joints for three months,
bilateral pedal oedema for 2 days and vomiting for 2-3 days. He has
deposed that the diagnosis revealed that said Seeta was deaf, dumb and
severely mentally retarded with severe anemia with disseminated
kochs and sepsis. Said Seeta expired on 29 th April, 2006. He has
produced the post mortem report at Exh.254. He has deposed that the
post-mortem findings indicate that the cause of death was tuberculosis
Broncho pneumonia with tuberculosis lymphadenitis with fatty liver.
25. DW5 Dr. Vijay Hari Juvekar, the Associate professor in
Pathology, attached to J.J. Hospital has also deposed that Seeta was
admitted in J.J. Hospital on 24 th April, 2006 with history of pain in
abdomen for 15 days. He has deposed that she was having severe
anemia with disseminated kochs and sepsis. He has deposed that
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Seeta expired on 29th April, 2006. Resident pathologist conducted
autopsy on the same day in his presence. He has further deposed that
as per the post-mortem findings, Seeta was malnourished and the cause
of her death was tuberculosis broncho pneumonia with tuberculosis
lymphadenitis with fatty liver. He has confirmed the contents of the
summary of the post-mortem findings at exhibit 254. In his cross
examination, he has admitted that if a person suffering with such
ailment as Seeta is beaten, she can die.
ig He has further stated that
tuberculosis broncho pneumonia are curable.
26. DW6 Dr. Vinayak Maruti Sawardekar, the Assistant Professor at
J.J. Hospital has deposed that as per the records, Seeta was admitted in
the hospital on 24th April, 2006 at about 2.30 p.m. He has deposed that
she was brought to the hospital from orphanage, Anand Mahila and Bal
Kalyan Sanstha, Panvel. Said Seeta had complained of abdominal
pain, swelling of legs, vomiting and joint pain. He has deposed that as
per the record she had severe anemia, her hemoglobin was 3.3. He
has deposed that she had respiratory pathology on admission, which
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was abnormal and probably due to T.B. He has deposed that Seeta
expired on 29th April, 2006 at about 7.15 p.m. The probable cause of
death was severe anemia with disseminated coax with perisepsis. He
has stated that as per the record, Parvati Mavle (A10) who had claimed
to be the guardian had accompanied the patient Seeta.
27. The aforesaid medical evidence proves that Seeta was admitted
in JJ Hospital on 24th April, 2006 while she was housed at Anand
sanstha. She was having abdominal and knee joint pain and was
vomiting. She was severely anemic. She was treated in the hospital
and that she expired on 29th April, 2006. The medical evidence
indicates that the death of Seeta was due to tuberculosis and was not
homicidal in nature.
28. The learned Judge held that the ante mortem findings indicate
that Seeta had joint pain, stiffness of knees and rash all over the body.
The learned Judge has held that the said findings, 'in common parlance
correspond with the history of beating'. The learned Judge has further
held the fact that Seeta was malnourished and anemic with 3.3.
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hemoglobin also fortifies the contention of PW18 that Seeta had
become weak due to beating. The learned Judge has further held that
the DW5 has admitted beating a person with such ailment can be fatal.
Relying upon the decision of the Apex Court in Shakti Dan Vs. State
of Rajasthan 2007(3) Supreme 901, the learned Judge had held that
the case is covered by under clause 2 of section 300 of the Indian Penal
Code.
29.
The learned Sessions Judge on considering the provisions of
Section 32, 36, 39 and 43 of the IPC, has held that the murder need not
necessarily be committed by stabbing or shooting with an intention to
cause death. The learned Judge has held that the murder can also be
committed by illegal omission such as omission to take proper care and
give timely treatment. The learned Judge has held that the accused no.1
was the Vice President of the Anand Sanstha and President of Kalyani
Sanstha. He was residing in the same premises wherein the girls were
housed. The learned Sessions Judge had held that the accused no.1
was therefore aware of the medical condition of Seeta and that it was
his legal duty to take proper care and to give timely treatment to Seeta.
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The learned Sessions Judge held that life of Seeta could have been
saved had she been given timely treatment. The learned Sessions Judge
has held that the accused No.1 not only failed to provide proper
nourishment and treatment to Seeta but beat her up despite knowing
her precarious medical condition.
30. The learned Sessions Judge has further held that the accused no.1
was running the said orphanage in an inadequate space with the help of
one illiterate care taker, unqualified Superintendent and with minimum
unqualified and untrained staff, The leaned Judge held that the inmates
were bound to die in such condition. The learned Sessions Judge
therefore held that the Accused No.1 had committed an act with an
intention of causing such bodily injury as he was knowing it was likely
to cause death of Seeta. The learned Sessions Judge has further held
that the accused No.1 had knowledge that the illegal omissions, such as
not giving proper nourishment and timely treatment to Seeta would
make her severely anemic and would ultimately cause her death. The
learned Judge therefore held that the aforestated acts and omissions
have resulted in death of Seeta and that this is nothing short of murder.
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The learned Judge therefore, held the accused No.1 guilty of section
302 of the IPC and accused No.10 of section 304 part II of the IPC.
31. The reasons ascribed by the learned judge raise an essential
question whether the acts and omissions allegedly committed by the
accused constitute 'culpable homicide' to begin with. The terms
'culpable homicide' and 'murder' are defined under section 299 and
300 of IPC and explained by the Apex Court in Anda and others
versus The State of Rajasthan AIR 1966 SC 148 as under:-
4. The offence of culpable homicide is defined by Section 299.
It reads:
"299. Culpable Homicide.
Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits offence of
culpable homicide."
The offence involves the doing of an act (which term
includes illegal omissions) (a) with the intention of causing
death or (b) with the intention of causing such bodily injury
as is likely to cause death or (c) with the knowledge that the
act is likely to cause death. If death is caused in any of
these three circumstances, the offence of culpable homicide
is said to be committed. The existence of the three
circumstances (a), (b) and (c) distinguishes homicide which
is culpable from homicides which are lesser offences or
PPS 25 of 121
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which are excusable altogether. Intent and knowledge in the
ingredients of the section postulate the existence of a
positive mental attitude and this mental condition is the
special mens rea necessary for the offence. The guilty
intention in the first two conditions contemplates the
intended death of the person harmed or the intentional
causing of an injury likely to cause his death. The
knowledge in the third condition contemplates knowledge of
the likelihood of the death of the person.
5. Section 300 tells us when the offence is murder and when it
is culpable homicide not amounting to murder. Section 300
begins by setting out the circumstances when culpable
homicide turns into murder which is punishable under
Section 302 and the exceptions in the same section tell us
when the offence is not murder but culpable homicide riot
amounting to murder punishable under Section 304. Murder
is an aggravated form of culpable homicide. The existence
of one of four conditions turns culpable homicide into
murder while the special exceptions reduce the offence of
murder again to culpable homicide not amounting to
murder. We are not concerned with the exceptions in this
case and we need not refer to them. We now refer to the
circumstances which turn culpable homicide into murder.
They read:
"300. Murder.
Except in the cases hereinafter excepted culpable homicide
is murder, if the act by which the death is caused is done
with the intention of causing, death, or--
2ndly.-- If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or--
3rdly.-- If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
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cause death, or--
4thly.-- If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk
of causing death or such injury as aforesaid."
Taking the four clauses one by one we find that under the
first clause of Section 300 culpable homicide is murder when
the act by which death is caused is done with the intention
of causing death. This clause reproduces the first part of
Section 299. An intentional killing is always murder unless it
comes within one of the special exceptions in Section 300. If
an exception applies, it is culpable homicide not amounting
to murder. It is the presence of a special exception in a
given case which reduces the offence of murder to culpable
homicide not amounting to murder when the act by which
death is caused is done with the intention of causing death.
6. The 2ndly in Section 300 mentions one special
circumstance which renders culpable homicide into murder.
Putting aside the exceptions in Section 300 which reduce the
offence of murder to culpable homicide not amounting to
murder, culpable homicide is again murder if the offender
does the act with the intention of causing such bodily injury
which be knows to be likely to cause the death of the person
to whom harm is caused. This knowledge must be in
relation to the person harmed and the offence is minder
even if the injury may not be generally fatal but is so only in
his special case, provided the knowledge exists in relation
to the particular person. If the element of knowledge be
wanting the offence would not be murder but only culpable
homicide not amounting to murder or even a lesser offence.
Illustration (b) appended to this clause very clearly brings
out the point. It reads:
"(b) A, knowing that Z is labouring under such a disease
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that a blow is likely to cause his death, strikes him with the
intention of causing bodily injury, Z dies in consequence of
the blow. A is guilty of murder, although the Wow might not
have been sufficient in the ordinary course of nature to
cause the death of a person in a sound state of health. But if
A, not knowing that Z is labouring under any disease, gives
him such a blow as would not in the ordinary course of
nature kill a person in a sound state of health, here A,
although he may intend to cause bodily injury, is not guilty
of murder, if he did not intend to cause death or such bodily
injury as in the ordinary course of nature would cause
death."
7. The third clause views the matter from a general stand
point. It speaks of an intention to cause bodily injury which
is sufficient in the ordinary course of nature to cause death.
The emphasis here is on the sufficiency of the injury in the
ordinary course of nature to cause death. The sufficiency is
the high probability of death in the ordinary way of nature
and when this exists and death ensues and the causing of
such injury is intended the offence is murder. Sometimes the
nature of the weapon used, sometimes the part of the body
on which the injury is caused, and sometimes both are
relevant. The determinant factor is the intentional injury
which must be sufficient to cause death in the ordinary
course of nature. If the intended injury cannot be said to be
sufficient in the ordinary course of nature to cause death,
that is to say, the probability of death is not so high, the
offence does not fall within murder but within culpable
homicide not amounting to murder or something less. The
illustration appended to the clause 3rdly reads:
"(c) A intentionally gives Z a sword-cut or club-wound
sufficient to cause the death of a man in the ordinary course
of nature. Z dies in consequence. Here A is guilty of murder,
although he may not have intended to cause Z's death."
The sufficiency of an intentional injury to cause death in
PPS 28 of 121
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the ordinary way of nature is the gist of the clause
irrespective of an intention to cause death. Here again, the
exceptions may bring down the offence to culpable
homicide not amounting to murder.
8. The clause 4thly comprehends generally the commission
of imminently dangerous acts which must in all probability
cause death or cause such bodily injury as is likely to cause
death. When such an act is committed with the knowledge
that death might be the probable result and without any
excuse for incurring the risk of causing death or injury as is
likely to cause death, the offence is murder. This clause,
speaking generally, covers cases in which there is no
intention to cause the death of any one in particular.
Illustration (d) appended to this clause reads:
"(d) A without any excuse fires a loaded cannon into a
crowd of persons and kills one of them. A is guilty of
murder, although he may not have had a premeditated
design to kill any particular individual."
32. In Shakti Dan Vs. State of Rajasthan 2007 Cri.L.J.3426, the
Apex Court has explained the distinction between a murder and
culpable homicide not amounting to murder. The Apex Court has held
that :-
"Clause (b) of Section 299 corresponds with clauses (2) and
(3) of Section 300. The distinguishing feature of the mens rea
requisite under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a
peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact
PPS 29 of 121
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that such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or
condition. It is noteworthy that the 'intention to cause
death' is not an essential requirement of clause (2). Only
the intention of causing the bodily injury coupled with the
offender's knowledge of the likelihood of such injury caus-
ing the death of the particular victim, is sufficient to bring
the killing within the ambit of this clause. This aspect of
clause (2) is borne out by illustration (b) appended to Sec-
tion 300.
16. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under clause (2) of Section 300 can be where the as-
sailant causes death by a fist blow intentionally given
knowing that the victim is suffering from an enlarged liver,
or enlarged spleen or diseased heart and such blow is like-
ly to cause death of that particular person as a result of the
rupture of the liver, or spleen or the failure of the heart, as
the case may be. If the assailant had no such knowledge
about the disease or special frailty of the victim, nor an in-
tention to cause death or bodily injury sufficient in the or-
dinary course of nature to cause death, the offence will not
be murder, even if the injury which caused the death, was
intentionally given. In clause (3) of Section 300, instead of
the words 'likely to cause death' occurring in the corre-
sponding clause (b) of Section 299, the words "sufficient in
the ordinary course of nature" have been used. Obviously,
the distinction lies between a bodily injury likely to cause
death and a bodily injury sufficient in the ordinary course
of nature to cause death. The distinction is fine but real
and if overlooked, may result in miscarriage of justice. The
difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death re-
sulting from the intended bodily injury. To put it more
broadly, it is the degree of probability of death which de-
PPS 30 of 121
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termines whether a culpable homicide is of the gravest,
medium or the lowest degree. The word 'likely' in clause
(b) of Section 299 conveys the sense of probable as distin-
guished from a mere possibility. The words "bodily
injury.......sufficient in the ordinary course of nature to
cause death" mean that death will be the "most probable"
result of the injury, having regard to the ordinary course of
nature".
33. In State of Andhra Pradesh v. Rayavarapu Punnayya & Ors.
AIR 1977 SC 45, the Apex Court has held as under:
"whenever the court is confronted with the question
whether the offence is "murder" or cuplable homicide and
not amounting to murder on the facts of a case, it will be
convenient to it to approach the problem in three stages.
The question to be considered at the first stage would be
whether the accused has done the act by doing which he
has caused death of another. Proof of such casual
connection between the act of the accused and the death,
leads to the second stage for considering whether the act
of the accused amounts to 'culpable homicide' is defined in
Section 299. If answer to this question is prima facie
found in the affirmative, the stage for considering the
operation of section 300, penal code is reached. This is
the stage at which the court should determine whether the
facts proved by the prosecution bring the case within the
ambit of any of the four clauses of the definition of
'murder' contained in Section 300. If the answer to this
question is in the negative, the offence would be 'culpable
homicide not amounting to murder', punishable under
section 304 of IPC depending respectively on whether the
second or third Clause of Section 299 is applicable. If
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such question is found in the positive, but the case comes
within any of the exceptions enumerated in Section 300,
the offence would still be culpable homicide not amounting
to murder punishable under Section 304 of IPC."
34. In the backdrop of this settled principle of law we now proceed
to examine the testimony of PW18 and 19 which had led to framing of
charge under section 302 of the IPC.
35. A plain reading of the evidence of PW 18 and 19 indicates that
they had vaguely stated that the accused nos.1 and 10 used to beat
Seeta. The evidence of these witnesses does not disclose the manner of
the assault or the nature of the injuries caused by such assault. There is
absolutely no evidence to prove that Seeta had died as a result of the
injury inflicted by the accused or that the accused had intentionally
inflicted injury on Seeta knowing that she was suffering from
tuberculosis and thereby caused or accelerated the death of Seeta.
36. Relying upon the principles laid down in Shakti Dan (supra) the
Trial Judge has held that the present case is covered by clause (2) of
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section 300 of the IPC. It may be mentioned that clause (2) of section
300 would apply when the act is done with an intention of causing
such bodily injury as the offender knows to be likely to cause death of
the person to whom the harm is caused. Intention to cause the injury
as well as the knowledge that such injury is likely to cause death are
the essential requirements of clause (2) of section 300 of the IPC.
37. In the instant case, there is absolutely no evidence to prove that
the accused had committed any such act, which had resulted in death
of Seeta. On the contrary, as stated earlier the medical evidence vis-a
vi the post-mortem report at Exh.254 reveals that Seeta was suffering
from tuberculosis and that she had expired as a result of tuberculous
Broncho pneumonia with tuberculosis lymphadentis with fatty liver.
38. It is also pertinent to note that the symptoms such as joint pain,
stiffness of knees and rash over the body could be the natural or likely
consequences of tuberculosis. The prosecution had not elucidated any
evidence from the medical officers either to rule out this possibility or
PPS 33 of 121
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to substantiate that the said condition was caused by beating. In the
absence of such evidence, the findings of the learned trial Judge that
the ante mortem findings i.e. joint pain, stiffness of knees and rash all
over the body fortifies the history of beating are not based on any
evidence on record and cannot be sustained.
39. The medical evidence no doubt proves that Seeta was anemic.
Nonetheless, the mere fact that Seeta was malnourished and anemic or
that she was suffering from tuberculosis does not per se lead to an
inference that she was deprived of food and medication. Moreover, the
prosecution has not adduced any evidence to prove that the death of
Seeta was due to deprivation of proper food and medication. There is
absolutely no evidence to prove that the accused had failed to give
medication or proper nutrition to Seeta with an intention of causing
her death or with a knowledge that it would cause or accelerate her
death. In view of which, the finding of the learned Judge that the case
is covered by clause 2 of section 300 cannot be sustained. The death of
Sita was not homicidal. Consequently, the conviction and sentence of
PPS 34 of 121
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the accused no. 1 and 10 for the offences under section 302 and 304
cannot be sustained.
40. The accused are also alleged to have physically and sexually
abused the inmates of Kalyani Sanstha.
41. Heard learned Counsels Shri Vaswani, Shri Mundargi, Mr.
Shetty, Miss. Patil and Miss Sangtani on behalf of the accused.
42. The gist of the submissions of the learned Counsels for the
accused is that though PW2 is a signatory to both panchanamas at
Exh.52 and 82, in his evidence before the court, he had not referred to
the first panchanama at Exh.82. It is further submitted that PW2 has
stated the name of the second pancha as Rajkumar while the
panchnama states his name as Ramkumar. It is further submitted that
the FIR indicates that the premises were sealed on 4 th March 2011 and
that there is no evidence on record to show that the investigating
officer had opened the seal on 6th March, 2011. The learned counsels
PPS 35 of 121
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have further submitted that the evidence of PW2 also does not indicate
whether the bungalow was sealed or it was open when the police had
visited the same for conducting the panchanama. The learned counsels
have submitted that the prosecution has not adduced any evidence to
show that the investigation agency had sealed the said bungalow
wherein the Sanstha was housed. It is submitted that the prosecution
has not given any reasons for not seizing all the articles on 4 th March,
2011. They therefore claim that the second panchanama dated 6 th
March, 2011 appears to be doubtful and as such no reliance can be
placed on the testimony of PW2 as well as PW8.
43. The learned counsels for the accused have further submitted that
the victim namely PW19 was a mentally challenged girl and was not
competent to depose. They have submitted that the learned trial Judge
has recorded the evidence of the witness without ascertaining whether
she was a competent witness. They have further submitted that PW18
was a deaf and dumb girl and her evidence was interpreted by PW7.
The learned counsels have submitted that PW7 has done her special
PPS 36 of 121
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course only for the hearing impaired and that she was not qualified to
interact, explain or understand the signs of a dumb person, and
consequently she was not competent to interpret the evidence of
PW18.
44. The learned Counsels for the accused have submitted that PW7
had interacted with the victims and had assisted the Investigating
Officer in recording their statements under Section 161 as well as 164
of Cr.P.C. They therefore claim that PW7 was an interested witness
and as such her evidence is unreliable.
45. The learned counsels for the accused have further submitted
that the trial court has not recorded the signs made by PW18.
Furthermore, PW7 has not maintained the records of the signs made
by PW18, and in the absence of such evidence it is not safe to rely
upon the evidence of PW18. In support of this contention, they have
relied upon the judgment of the Apex Court in State of Rajasthan v.
Darshan Singh @ Darshan lal (2012) 5 SCC 789.
PPS 37 of 121
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46. The Learned counsels for the accused have further submitted
that even otherwise there is no consistency in the sign language as each
of the victims has interpreted the signs differently. For instance, PW18
had made a triangular sign by joining her two thumbs and two index
fingers to refer to private part, whereas PW17 has interpreted this sign
as Samosa. It is submitted that in the absence of record of signs either
by the interpreter or by the learned Judge, no reliance can be placed on
the evidence of the said witnesses.
47. The learned counsels for the accused have submitted that though
PW17 had initially stated that she was sexually abused by the accused
no.1, in the cross examination she has admitted that she used to go out
with her boy friend and used to have sexual intercourse with him.
They have further submitted that PW17 has admitted in her cross-
examination that the accused no.1 was not involved in sexually
abusing her and the other girls and that she had deposed falsely at the
instance of PW7 and the Investigating Officer. They have further
PPS 38 of 121
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submitted that the evidence of PW17 reveals that the girls used to
masturbate and insert sticks in their private parts and hence the mere
rupture of hymen or other injuries on the private parts would not
indicate that they were sexually abused by the accused. They have
submitted that the evidence of PW17 is totally in variance with the
evidence of PW18. The inconsistency in the evidence of both these
witnesses casts a doubt on the prosecution story.
48. The learned Counsels have further submitted that whenever the
victim made a statement which was favourable to the accused, the
learned Judge intervened and alerted the witness by asking court
questions. Relying upon the judgment of the Apex Court in State of
Rajasthan v. Ani @ Hanif & Ors. AIR 1997 SC 1023, it is submitted
that the Court questions could have been asked only in case of
ambiguity and not to obtain answers favourable to the prosecution
case. They have further submitted that the learned trial Judge also
disallowed the material questions asked to PW17, which has caused
prejudice to the accused and has resulted in unfair trial. It is submitted
PPS 39 of 121
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that the evidence of PW17 and PW18 clearly indicates that both these
witnesses were tutored by PW7. They have further submitted that the
evidence of PW17, 18 and 19 was recorded in the presence of the
interpreter as well as the psychologist Archana Singh. They have
submitted that while the victims were under cross examination, the
learned trial judge asked several court questions to the psychologist
and sought her opinion about the answers given by the victims. They
have submitted that the procedure adopted by the learned trial court is
totally novel and unheard of.
49. The learned Counsels for the accused have further submitted that
the prosecution has not examined the other victims, who were also
allegedly sexually abused by the accused and has also not assigned
reasons for not examining these victims. The learned counsels have
submitted that there is absolutely no evidence to hold the accused
guilty of offence under section 376 of the IPC or under any of the other
clauses of sub section 2 of Section 376 IPC.
PPS 40 of 121
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50. Ms. Salian, the learned Special PP has submitted that the
evidence of PW 17 and PW 18 who were the victims of crime amply
proves that the accused had subjected them to physical and sexual
abuse. She has further submitted that the medical evidence duly
corroborates the evidence of these witnesses. She has submitted that
PW 18 is not a mentally challenged witness but was only a deaf and
dumb witness and was competent to depose. The learned APP has
submitted that the services of an expert witness PW7 Sunanda Tarte
were availed to interpret the evidence of this witness. The learned
Special APP has further submitted that even otherwise the signs made
by the witness were so simple and clear that there was no doubt about
the interpretation of her evidence.
51. The learned Special PP has further submitted that the medical
evidence also corroborates the evidence of these victims. She has
relied upon the judgment of Kamalnath & Ors. v. State of Tamilnadu
2005(5) SCC 194 and Bhupendra Sharma v. State of Himachal
Pradesh AIR 2003 SC 4684. She has submitted that the conviction
PPS 41 of 121
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can be based on the testimony of the prosecutrix alone without
necessity of corroboration. She has urged that the evidence of PW 18
inspires confidence. She has submitted that PW18 had no reason to
depose against the accused and can be the basis of conviction.
52. The learned Special APP has further submitted that PW 17 is a
witness with below average IQ. Her evidence which is duly
corroborated by PW18
ig also supports the prosecution case.
Furthermore, her evidence is duly corroborated. She has submitted
that the evidence of PW 17 cannot be discarded merely because of
some of the answers given by her in her cross examination wherein she
has admitted some of the suggestions put to her in the cross
examination. The learned Special PP has submitted that the witness
was traumatized and physically and sexually abused by the accused
who had dominion over her. She has further submitted that some stray
answers given by the witness being under psychological pressure, or
physical and mental disability cannot be a ground to discard the entire
testimony. She has submitted that the minor discrepancy in the
PPS 42 of 121
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testimony of the victim is not fatal to the case of the prosecution.
53. The learned Special PP has further submitted that the irregularity
if any, in the investigation, prosecution or trial has not caused any
prejudice to the accused and has not resulted in failure of justice and as
such, the same cannot be regarded as fatal. She has submitted that the
evidence on record proves beyond reasonable doubt that the victim
girls were subjected to physical as well as sexual abuse and as such,
the conviction and sentence does not warrant interference.
54. The learned APP Ms. Bhosale has submitted that there is
sufficient evidence on record to prove the guilt of the accused and that
the learned Judge has totally erred in acquitting the accused of the
offences for which they were charged with.
55. The learned APP has submitted that the accused has not furnished
an explanation in his statement under Section 313 of Cr.P.C. regarding
the incriminating material that has been produced against him.
PPS 43 of 121
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Relying upon the judgment of Phula Singh vs. State of Andhra
Pradesh (2014) 4 SCC 9 she has submitted that silence of the accused
warrants drawing of adverse inference against him.
56. We have considered the submissions advanced by the learned
Special PP and the learned counsels for the accused. We have carefully
analysed the evidence adduced by the prosecution to examine whether
the prosecution has succeeded in proving the charge of physical and
sexual abuse of the girls housed in the society warranting conviction
and sentence for offences under section 376(2) (c), 376 (2) (g) and 377
IPC. Before adverting to the facts of the case, it is imperative to
consider and comprehend the essential ingredients and legislative
intent of these relevant sections.
57. Section 376 (as it stood prior to 2013 Amendment), prescribes
stringent punishment in some special case of rape which fall within
any of the clauses (a) to (g) of sub section (2) of this section. This
classification is based on the gravity of the offence, the vulnerability of
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victim and the amount of influence that could have been exercised by
the accused upon the victim by virtue of their special position. Clauses
(c) and (g) of sub section (2) of Section 376 IPC, which are relevant in
the present case, read as under:
"(2)Whoever,- ...
(c) being on the management or on the staff of a jail,
remand home or other place of custody established by or
under any law for the time being in force or of a women's
or children's institution takes advantage of his official
position and commits rape on any inmate of such jail,
remand home, place or institution; or...
(g) Commits gang rape,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be for
life and shall also be liable to fine.
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term
of less than ten years.
Explanation 1 of this sub-section says " Where a woman
is raped by one or more in a group of persons acting in
furtherence of their common intention, each of the persons
shall be deemed to have committed gang rape within the
meaning of this sub-section.
Whereas Explanation 2 provides that "women's or
children's institution" means an institution, whether called
an orphanage or a home for neglected women or children
or a widow's home or by any other name, which is
established and maintained for the reception and care of
woman or children."
PPS 45 of 121
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Section 377 IPC, which covers unnatural offences states that:-
"whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, shall
be punished with imprisonment for life, or with
imprisonment of either description for a term which
may extend to ten years, and shall be liable to fine".
Explanation to this section provides that penetration is sufficient to
constitute the carnal intercourse necessary to the offence described
under this section.
58. Section 114 A of the Indian Evidence Act (as it stood prior to
2013 amendment ) raises a presumption that in a prosecution for rape
under clauses (a) to (g) of sub section 2 of Section 376 of the Indian
Penal Code, where sexual intercourse by accused is proved and the
question is whether it was without the consent of the woman alleged to
have been raped and she states in her evidence before the court that she
did not consent, the court shall presume that she did not consent.
59. Keeping these provisions in mind, we proceed to analyse the
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evidence on record and ascertain whether the prosecution has
established beyond reasonable doubt that :
a) the accused no.1 was holding a special position as
stated in clause (c) of sub section of section 376,
b) the accused had taken advantage of his/their
position and committed rape on the inmate of the
orphanage
c) the accused no.1 and 3 had committed gang rape
d) the accused had carnal intercourse against the order
of nature .
60. Reverting to the facts of the present case, it is alleged that the
mentally challenged victim girls, who were allegedly raped, were
housed in Kalyani Sanstha, situated at Khanda Colony, Kalparaj Row
House near New Panvel. The registration certificate at Exh.179 clearly
indicates that said Sanstha was registered with Women and Child
Department, Pune, Maharashtra w.e.f. 5th December, 2009. The
evidence of PW1 Neela Tulpule, the President of Child Welfare
Committee reveals that the accused Kalyani Karanjule, daughter of the
accused No.1, was the president of the said Sanstha whereas accused
no.1 and his wife Surekha were the trustees of the said Sanstha. The
PPS 47 of 121
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evidence of PW3 vis-à-vis the report at Exh.58 also proves that the
members of the Committee appointed by this Court had inspected the
premises and verified all the files and documents in respect of the said
Sanstha. The evidence of the committee members indicates that total
19 girls, who were mentally or physically disabled were housed in the
said premises/ Sanstha. The accused No.1 and his family members,
who were the trustees of the said Sanstha, were residing in the same
premises.
61. It may be mentioned here that the panchanama at Exh.82 colly
was drawn by PW14-Sanjay Shukla on 4.3.2011 in presence of PW8
Dinesh Jadhav and one Ramkumar Yadav and several articles
including gate register, visitors' books, registers wherein the name of
the accused no.5 was recorded as the chairperson and the names of the
accused no.1 and 9 were recorded as the trustees of the Sanstha were
seized under the said panchanamas. The Investigating Officer had
also conducted another panchanama on 6th March, 2011 and had seized
several other registers and articles from the premises under
PPS 48 of 121
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panchanama at Exh.52 colly, drawn in presence of PW2 Sandeep
Kumar Vimal Singh and Ramkumar Yadav.
62. A perusal of both these panchanamas reveal that one Ramkumar
Yadav, who has not been examined, was a common witness to these
two panchanamas. PW2 -Sandeep Kumar Vimal Singh was not a
witness to the first panchanama drawn on 4th March, 2011 as submitted
by the learned counsel Mr. Vaswani and as such there was no question
of this witness referring to the first panchanama. It is further to be
noted that no evidence was elucidated from PW14 to explain as to why
the articles seized under the second panchanama were not seized
under the first panchanama drawn on 4th March, 2011. Hence the
evidence of PW2 and PW8, who have otherwise emerged as credible
witnesses cannot be disbelieved merely because the Investigating
Officer had seized the articles on two different dates or under two
panchanamas.
63. The evidence of PW2 Sandeep Kumar Vimal Singh, PW8 Dinesh
PPS 49 of 121
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Jadhav and PW14 Sanjay Shukla vis-à-vis the panchanama at Exh.52
colly and 82 colly therefore proves that the registers and files including
the registers containing the names and addresses of the office bearers
of the Kalyani Sanstha were seized from the premises of the said
sanstha. The aforesaid evidence was not seriously challenged by the
accused and it was only in the statement under section 313 of the
Cr.P.C. that the accused had denied their association with Kalyani
Sanstha.
64. It is also to be noted that the accused had examined D.W.-7- the
District Probation Officer in the office of Women and Child
Development Office at Alibag-Raigad. The evidence of this witness
vis-à-vis his report at Exh.273 clearly supports the case of the
prosecution that the accused Kalyani Karanjule, daughter of the
accused No.1, was the president of the said Sanstha whereas accused
no.1 and his wife Surekha were the trustees of the said Sanstha,
wherein the mentally challenged children were housed. The evidence
of this witness therefore falsifies the defence raised by the accused.
PPS 50 of 121
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65. PW3 Naina Athale, is the Assistant Professor at Tata Institute of
Social Science with masters degree in social work. Whereas PW5-
Deepali Bhattacharya is an Associate General Manager of CRY, (Child
Rights and You). She has done her M.Phil. in political science and has
worked for Tata Institute of Social Science and Action Aid Institute
and has been working as a counselor in schools and other organization
for child and women. The evidence of PW-3, Naina Athale and PW 5
Deepali Bhattacharya indicates that they had inspected the Sanstha.
They had seen cloths like trousers, banian and shaving kit on the first
floor of the said premises. They were told that the said clothes were of
the accused No.1-Ramchandra.
66. These witnesses have deposed that they had interacted with the
19 mentally/physically challenged girls who were the inmates of the
said sanstha. The three victims who have been examined shall be
hereinafter referred to as PW17, PW18 and PW19 respectively and the
other inmates who have not been examined shall be referred to by
PPS 51 of 121
Conf 3-13 .doc
their initials. PW3 has stated that she had noticed that one of the
mentally challenged girls (PW17) was continuously spitting, which
according to PW3 is one of the symptoms of sexual abuse. PW3 and
PW5 strongly suspected that the girls were sexually and physically
abused. The Committee therefore submitted the report at Exh.58 to
Ms Asha Bajpai. They highlighted several irregularities committed by
CWC and requested the CWC to inspect the premises and take
necessary action.
67. In view of the directions given by the Committee, PW-1, Neela
Tulpule and PW-10 Dattatraya Kurlekar visited the Sanstha on 28 th
February, 2011. They interacted with the children and they suspected
that some college boys were visiting the Sanstha and the girls were
sent out. They suspected that the girls were sexually abused. On 2 nd
March, 2011 they took the said girls to rural hospital, Panvel for
medical examination. Dr. Swati Naik examined the said girls and
reported that some of the girls were sexually abused.
PPS 52 of 121
Conf 3-13 .doc
68. PW4 Dr. Swati Naik, is a gynecologist attached to rural hospital,
Panvel. She has deposed that CWC had referred some girls from
Kalyani Sanstha for medical examination. She had examined all the
19 girls and found that 5 girls were habituated to sexual intercourse.
The medical reports at Exh.65 to 69 coly, read as under :-
Nam Age History Injuries Findings-opinion
e
Sh 19 Patient is No external Patient has undergone
Yrs. unable to talk injury. sexual intercourse and is
Exh. and history
ig Hymen not in habituated to it.
65 cannot be tact, loose,
elicited hanging
easily.
Ch 13 Patient is No external Patient has undergone
Yrs. unable to talk injury. sexual intercourse and is
Exh. and history Hymen habituated to it.
66 cannot be patulous not
elicited intact. Labia
majora
seperated
Ni 14 Patient is No external Patient has undergone
Yrs. unable to talk injury. sexual intercourse and is
Exh and history Hymen habituated to it.
67 cannot be patulous
elicited hanging
loose.
So 19 Patient has No external Patient has undergone
Yrs. no injury.Hymen sexual intercourse and is
Exh complaints. patulous habituated to it.
68 allows two
fingers easily.
PPS 53 of 121
Conf 3-13 .doc
Sa 15 Abrasion Patient has undergone
Yrs. around sexual intercourse and is
Exh breast. habituated to it.
69 Hymen
patulous and
allows 1
finger easily.
69. The evidence of PW 4 vis-a-vis the medical report at Exh.63 and
64 colly reveals that these mentally challenged girls who were the
inmates of Kalyani Sanstha were sexually abused. Some of these girls
were barely 13-15 years of age. The medical reports confirmed the
suspicion that the girls were sexually abused and this led to filing of the
FIR at Exh. 41.
70. The evidence on record indicates that since the children were
mentally challenged and some were deaf and dumb services of PW6-
Dr. Archana Singh, Psychiatrist attached to the Government Hospital,
Alibag, and PW7 Sunanda Tarte, who is a teacher having done her
B.A. B.Ed. and special course for hearing impaired, were availed to
PPS 54 of 121
Conf 3-13 .doc
record the statements of the said victim girls under section 161 and 164
of the Cr.P.C.
71. The testimony of PW6 and PW7 indicates that they had
interacted with the girls including the victim girls PW 17, 18 and 19
from 12th April, 2011 to 18th April, 2011. They had tried to understand
the sign language developed by the girls. They established a rapport
with the victim girls and questioned them about the incident. Once the
girls opened up and narrated the incident, they assisted the
Investigating agency in recording their statements under section 161and
164 of Cr.P.C.
72. It may be mentioned here that PW6 and PW7 have narrated the
incident as disclosed by the victim girls and as recorded in their
statements under section 161 of Cr.P.C. The learned Trial Judge has
also taken on record and exhibited these statements at Exh.75 and 78
colly. Needless to state that the statement recorded under section 161 of
Cr.P.C. is not a substantive evidence. The statement under Section 161
PPS 55 of 121
Conf 3-13 .doc
of Cr.P.C. cannot be used for the purpose of corroboration of any other
witness. Under the proviso to Section 162 of Cr.P.C., the statement
made by the witness under section 161 of the Cr.P.C. can be used by the
accused, and with the permission of the Court by the prosecution, to
contradict such witness in the manner indicated in Section 145 of the
Indian Evidence Act. Similarly, a statement under Section 164 of the
Cr.P.C. is not substantive evidence. It can be used to corroborate the
statement of a witness or to contradict a witness. The records of the
present case indicate that the learned trial Judge has used the statements
of the victims recorded under Section 161 as well as 164 of Cr.P.C. as
substantive evidence. The learned Judge has therefore committed a
manifest illegality in taking on record and relying upon the wholly
inadmissible evidence. The manner in which the learned trial Judge has
conducted the trial is not satisfactory. However, these irregularities are
not fatal as the same have not caused any prejudice to the accused.
73. Be that as it may, the evidence of PW6 Dr. Archana Singh reveals
that she had also evaluated the girls. Based on the clinical evaluation,
PPS 56 of 121
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she had classified the girls in three categories. Some of the girls
including PW 17 and 19 were suffering from mild mental retardation
i.e. they were having IQ level of above 75%. She has deposed that the
girls in this category were able to memorize all the incidents. Some
girls were suffering from severe mental retardation with IQ level of
below 50%. The children in this category did not have proper
communication skills and emotional drive and that they could not
interact with these children due to their physical and mental condition.
She has deposed that the children in the third category were deaf and
dumb with normal IQ level. But were unable to communicate in normal
language.
74. The testimony of PW6 reveals that the girls were under stress,
felt insecure and were going through depression. She has deposed that
one of the victims was admitted in the government hospital wherein she
was working. The said girl was suffering from severe depression,
which in medical terms called "post traumatic stress disorder". She has
further deposed that PW18 appeared to be scared and used to cry. She
PPS 57 of 121
Conf 3-13 .doc
has further stated that PW18 had proper orientation of time place and
person and being in the first category of mild mental retardation she
was able to narrate the incident.
75. PW 11 Dr. Harish Shetty, is a psychiatrist by profession. He has
done his MD in Psychiatry and Diploma in Psychological medicine and
postgraduate diploma in comparative mythology from Mumbai
University. He was one of the members of the committee appointed by
the High Court in Public Interest Litigation 180 of 2010. He has
deposed that he had visited the said 19 girls at Shaskiya Mahila Sudhar
Griha at Karjat. He had interacted with the said 19 girls for full three
days. He has stated that the physical and psychological observations of
the said girls revealed that their sleep and appetite had gone down. The
girls had complained about sexual abuse in the earlier home and they
appeared to be very scared and traumatized. He has stated that the girls
required counseling, psychotherapy and rehabilitation. The girls had
serious memories of sexual molestation and rape. They had lot of
anger against those who had subjected them to rape and molestation
PPS 58 of 121
Conf 3-13 .doc
and spoke vividly with verbal and non-verbal gestures.
76. PW11 has deposed that the psychiatric and mental status
examination was conducted by taking detail history through different
methods. The method was repeated in order to verify the consistency
of the information. The girls were also allowed to sign, draw and play,
in order to get their detail understanding. He has deposed that he had
established a bond with the girls and thereafter made general enquiries
and elucidated the information from them. He has deposed that the
girls were allowed to use clay and crayons. The girls were given
pictures of men and women and were asked to describe what they felt
about it. He has deposed that the girls had used lot of dark colours and
expressed lot of anger on the sexual part of the men. He has deposed
that the girls had taken names of alleged molesters and had used lot of
sexual idioms in Marathi and Hindi. After examining the girls he
submitted his report at Exh. 97 colly, wherein he has clearly opined that
the girls were sexually abused.
PPS 59 of 121
Conf 3-13 .doc
77. PW11 has stated in his cross-examination that he had interviewed
the girls in groups and had examined them with the help of a
psychologist. He has stated that PW17 and 18 were the first ones to be
examined. He has deposed that the girls did not recollect the exact
date of sexual abuse. He has stated that the girls were sexually abused
consistently. He has denied the suggestion that he had fabricated the
report being member of the High Court Committee. The evidence of
this expert witness also proves that the girls were sexually abused and
were physically and emotionally traumatized.
78. The prosecution has examined three inmates viz. PW17, PW18
and PW19 to prove the charges of physical and sexual abuse. It may
be mentioned that the observations made by the learned Judge indicate
that PW19 was severely mentally retarded. She was unable to give
proper answers to the questions asked by the learned Judge. Despite
which the learned Judge administered oath to the said victim girl and
recorded her evidence without arriving at a satisfaction that she was a
competent witness. A perusal of the impugned judgment reveals that
PPS 60 of 121
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the learned Judge has not relied upon the testimony of this witness
since she was not a competent witness. In view of which we do not
find it necessary to refer to the testimony of this witness.
79. PW 17 who is one of the victim girls was between 18 to 20 years
of age. The learned Sessions Judge has observed that though she was
"mentally sub normal", she could give rational answers. She was
aware of the sanctity of oath and hence she was administered oath.
PW17 has referred to the accused Ramchandra Karanjule as Papa, his
wife Surekha as Mummy and accused no.10 Parvati Mavle as Aaji. PW
17 has deposed that whenever she used to sleep, the accused no.1 used
to call her upstairs and if she refused, he would assault her. She has
stated that the accused no.1 would sexually abuse her by touching and
licking her breast. She has also stated that the accused no.1 had sexual
intercourse with her and had also compelled her to perform oral sex by
putting his private part in her mouth. She has stated that the accused
had threatened her not to disclose the incident to anyone.
PPS 61 of 121
Conf 3-13 .doc
80. PW17 has further deposed that the accused Nanabhau (A2) had
sexually abused PW18 and that Mayekar (A3) and Khadke Sir (A4) had
sexually abused (SK), one of the victim girls who has not been
examined. In her cross examination she has stated that there were total
21 girls in the said Sanstha and that she used to take care of all the said
girls. She has stated that the complainant Tulpule used to visit them at
Karjat and that she had accompanied them to Neral Hospital, as well as
JJ Hospital. She has further stated that the PW1 Tulpule had told her
as to what to disclose to the doctor. She has further stated that she and
Tupule had told other girls as to what to depose before the court about
Ramchandra, Sonali, Nanabhau, Khadke Sir, Mavle Aaji etc. She has
further stated that she and Tulpule had explained to the other inmates as
to what to depose against the accused persons. She has further stated
that the complainant Tulpule and Tarte had told her as to what to
depose before the court against the accused Ramchandra. She has
stated that her statement was recorded before the court and that Tulpule
had told her as to what was to be stated against the accused no.1 and
the other accused persons. In the cross examination this witness has
PPS 62 of 121
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given the following answers to the question no.39 and 40
"Q.39 Ramchandra did not do dirty work with you and you
are telling lie at the instance of police?
Ans. Yes Ramchandra did not do anything with me.
Q.40. You are telling lie at the instance of Police?
Ans- Yes Madam."
81. After the lunch break, it appears that the Sessions Judge had
asked the following court questions :
Q.1 - What did Ramchandra do with you?
Ans. He has done dirty work with me.
Q.2- You are telling lie?
Ans. No Madam.".
82. The records reveal that the learned judge had explained the
questions to the witness and had brought to the notice of the witness
that earlier she had answered a similar question in the affirmative.
When the learned judge repeated the questions the witness denied that
she was tutored and further denied that she was telling lies at the
instance of Tulpule. She had admitted the suggestion that she had been
told how to depose and what to depose in the court. However
PPS 63 of 121
Conf 3-13 .doc
immediately thereafter she denied that she was tutored by anyone. The
learned Judge observed that the witness had not understood the earlier
question and only after the question was explained to the witness had
stated that she was not tutored by anyone.
83. We are unable to appreciate the contention of the learned counsel
for the accused that the learned Judge had interjected and had asked
questions to negate the pivotal answers elicited in the cross-
examination of the witness. Suffice it to say that the court has ample
powers under Section 165 of the Indian Evidence Act to put any
question to the witness to elicit the truth. Reference can be made to the
decision of the Apex Court in State of Rajasthan vs. Ani @ Hanif
(supra) wherein it is held as under:
Section 165 of the Evidence Act confers vast and unrestricted powers
on the trial court to put "any question he pleases, in any form, at any
time, of any witness, or of the parties, about any fact relevant or
irrelevant" in order to discover relevant facts. The said section was
framed by lavishly studding it with the word "any" which could only
have been inspired by the legislative intent to confer unbridled power on
the trial court to use the power whenever he deems it necessary to elicit
truth. Even if any such question crossed into irrelevancy the same would
not transgress beyond the contours of powers of the court. This is clear
from the words "relevant or irrelevant" in Section
PPS 64 of 121
Conf 3-13 .doc
165. Neither of the parties has any right to raise objection to any such
question.
Reticence may be good in many circumstances, but a judge remaining
mute during trial is not an ideal situation. A taciturn Judge may be the
model caricatured in public mind. But there is nothing wrong in his
becoming active or dynamic during trial so that criminal justice being the
end could be achieved. Criminal trial should not turn out to be a bout or
combat between two rival sides with the judge performing the role only of
a spectator or even an umpire to pronounce finally who won the race. A
judge is expected to actively participate in the trial, elicit necessary
materials from witnesses at the appropriates context which the feels
necessary for reaching the correct conclusion. There is nothing which
inhibits his power to put questions to the witnesses, either during chief
examination or cross- examination or even during re-examination to
elicit truth. The corollary of it is that if a judge felt that a witness has
committed an error or a slip it is the duty of the judge to ascertain
whether it was so, for, to err is human and the chances of erring may
accelerate under stress of nervousness during cross-examination.
Criminal justice is not to be founded on erroneous answers spelled out by
witnesses during evidence collecting process. It is a useful exercise for
trial judge to remain active and alert so that errors can be minimised.
In this context it is apposite to quote the observations of Chinnappa
Reddy, J. in Ram Chander vs. The State of Haryana (AIR 1981 SC 1036):
"The adversary system of trial being what is is, there is an unfortunate
tendency for a judge presiding over a trial to assume the role of a referee
or an umpire and to allow the trial to develop into a contest between the
prosecution and the defence with the inevitable distortions flowing from
combative and competitive elements entering the trial procedure. If a
Criminal Court is to be an effective instrument in dispensing justice, the
presiding judge must cease to be a spectator and a mere recording
machine. He must become a participant in the trial by evincing intelligent
active interest by putting questions to witnesses in order to ascertain the
truth."
We respectfully concur with the aforesaid observations."
84. In the instant case PW17 is a mentally challenged girl who was
an inmate of Kalyani Sanstha and over whom the accused no.1 had
PPS 65 of 121
Conf 3-13 .doc
total dominion. Having regard to the physical, sexual and emotional
trauma the victim underwent, the learned Judge had an onerous task of
ensuring that the victim was able to understand the import of the
questions asked by the defence counsel and that she was able to give
correct answers. It has to be borne in mind that the criminal trial is not
a dual between the prosecution and the defence but as held by the Apex
Court in Ritesh Tiwari v. State of UP (2010) 10 SCC 677 "every trial is
a voyage of discovery in which truth is the quest".
ig The learned Judge
therefore cannot be faulted for interjecting and asking or explaining the
questions to the witness in her endeavor to discern the truth. On the
contrary, the judge would have failed in her duty had she chosen to
remain a passive or silent spectator.
85. It is pertinent to note that in answers given to question Nos.76
till 162 the witness had admitted almost all suggestions put to her.
Some of the questions and answers reproduced verbatim read as
under :-
Q.76: Is it correct to say that during quarrel you girls
used to tear clothes of each other.
PPS 66 of 121
Conf 3-13 .doc
Ans: It is correct.
Q.77: Is it correct that during quarrel you girls used to
beat each other with sticks?
Ans: It is correct.
Q.78: Is it correct to say that the girls used to put sticks
in the urinal organs of each other?
Ans.: It is correct to say that girls used to put sticks in
the urinal organs of each other.
Q.82: Is it correct that you did not know Mayekar?
Ans: It is correct.
Q.97: Is it correct that you have been taught by Tarte
Madam to tutor girls against NAnabhau Karanjule?
Ans.: It is correct.
Q.123: Kiran your friend used to take you to the temple
of Shankar for the purpose of marriage?
Ans: It is correct.
Q.125: Kiran used to put his urinal organ in your urinal
organ and used to squeeze your chest?
Ans. It is correct.
Q.127: Only Kiran used to do dirty work with you and
no other person correct?
Ans.: It is correct.
86. In the like manner PW17 has admitted that she is deposing
against the accused no.3 Mayekar and accused No. 2- Nanabhau at the
instance of Madam Tulpule. She has admitted that PW18 and another
girl, (who has not been examined) used to insert fingers into the
private parts of the other girls. She has admitted that every day they
were being tutored as to what is to be deposed in the court. She has
PPS 67 of 121
Conf 3-13 .doc
further admitted in the cross examination that Sunanda Tarte had
stayed with them at Khanda Colony for about one month. She has
stated that she like to wear good clothes and use make up and also
liked to dance. She has admitted that she had danced with Turpule,
Athale and Dighe when they visited Khanda Colony. She has
admitted that she was not allowed to leave the sanstha and that she
used to sneak out. She has admitted that nothing as deposed by her in
the examination in chief had happened.
ig She has admitted that none
of the 10 accused persons had done any 'dirty work' with her. She has
admitted that she was not medically examined by the doctor. She has
deposed that Mavle Aaji (A10) was providing them food and used to
take care of them whenever they were admitted in the hospital. She
has stated that Mavle Aaji (A10) used to beat them whenever they used
to make noise and that she had called them Nalayak only for that
reason.
87. It is evident that the questions at serial nos. 123 to 127 were
aimed at establishing that the victim was having illicit relationship with
PPS 68 of 121
Conf 3-13 .doc
one Kiran and that she was habituated to sexual intercourse. Needless
to state that the victim was not facing a trial. Furthermore, her moral
character was not in question and could not have been in question in
view of omission of clause 4 of Section 155 of the Indian Evidence
Act. It is also to be noted that the victim who was a mentally
challenged girl and an inmate of Kalyani sanstha, could not have left
the premises as per her own sweet will, without permission of the
accused or the CWC members.ig The learned trial Judge totally lost
track of these facts and consequently subjected the victim to
humiliation and degradation by allowing the defence counsel to ask
such questions in uncontrolled cross-examination.
88. It is pertinent to note that the evidence of PW6 reveals that PW18
was suffering from mild mental retardation. The evidence of PW6 as
well as the preliminary questions asked by the learned Judge indicate
that this witness could give rational answers and that she was a
competent witness. A plain reading of the evidence of this witness
indicates that in her examination in chief she had consistently stated
PPS 69 of 121
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that the Accused No.1 had sexually abused her. However, in her cross
examination she had admitted almost all the suggestions thereby giving
an indication that she had literally negated the allegations leveled
against the accused.
89. The question which therefore arises is whether the entire
evidence of this witness should be treated as effaced in view of the
answers given by her in the cross examination. At this stage it would
be advantageous to refer to the decision of the Apex Court in Khujji
Vs. State of MP, 1991 (3) SCC 627, wherein the Apex Court has
reiterated the well settled principles laid down in the previous
decisions in Bhagwan Singh Vs. State of Hariyana (1976) 1 SCC
389, Ravindrakumar Day Vs. State of Orissa (1976) 4 SCC 233 and
Sayyad Akbar Vs. State of Karnataka, (1980) 1 SCC 30, that the
evidence of a prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross examine
him. The evidence of such witness cannot be treated as efface or
washed off the record altogether. But the same can be accepted to the
PPS 70 of 121
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extent their version is found to be dependable on a careful scrutiny
thereof.
90. We are conscious of the fact that PW17 is not a hostile witness.
Nonetheless, it has to be borne in mind that this witness, though a
competent witness, was a mentally challenged girl with IQ level below
average. She was subjected to long drawn and strenuous cross-
examination spilled over several days by battery of lawyers. It was
virtually a battle between a mentally challenged girl and skilled
lawyers. The observations made by the learned trial Judge also
indicate that the witness was confused and was unable to understand
the questions asked in the cross examination. The tenor of the answers
given by this witness fortifies the observations made by the learned
Judge. A plain reading of evidence of PW17 also indicates that this
witness was subjected to repetitive questioning as to the details of the
occurrence. It is evident that the witness was either utterly confused,
nervous or anxious due to her mental disability coupled with dexterous
cross examination or that she was frustrated because of repeated and
PPS 71 of 121
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long drawn strenuous cross examination by skillful defence lawyers, in
unfamiliar and unfriendly courtroom environment. Under the
circumstances we are not inclined to discard the evidence of this
witness altogether but our endeavor is to scrutinize the evidence
carefully and find out whether substratum of her evidence is consistent
and credible and accept the part of the evidence which is found to be
dependable.
91. Much would therefore depend on the quality, reliability and
credibility of the testimony of PW18. We will therefore analyse the
evidence of PW18, a 21 years old victim girl and examine whether her
evidence corroborates the evidence of PW17 and supports the
prosecution case. PW18 who was also allegedly subjected to physical
and sexual abuse is not a mentally challenged girl, but is a deaf and
dumb girl and is a competent witness. PW18 was not able to write and
as such her evidence could not be recorded by giving her questions in
writing and seeking answers in writing. The evidence of this witness
was therefore recorded in sign language and with aid of the Interpreter
PPS 72 of 121
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and both these witnesses were administered oath.
92. The evidence of PW18 reveals that she had identified accused
no.1 by making gestures that he had a beard and had referred to him as
Papa. This witness had stated that the accused no.1 used to beat her.
This witness had stated that he had banged her head against the wall
and caused her bleeding injury. She has further stated that the accused
no.1 used to consume alcohol and compel her to consume alcohol.
She has stated that the accused no.1 used to take her and the other girls
upstairs and that the accused nos.1 and accused No.3- Deepak Mayekar
used to sprinkle something on the sweets and make them eat the said
sweets. She has stated that she had felt giddy after eating the said
sweets and that thereafter the accused no.1 and said Mayekar switched
off the lights, removed their clothes and had sexual intercourse with
them. She has stated that the accused no.1 had sexual intercourse
with PW17 and another girl (M), who has not been examined. She has
further stated that the accused No.3 Deepak Mayekar had sexual
intercourse with the other girls (M, PR, PW19 and S.)
PPS 73 of 121
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93. This witness has further stated that the friends of the accused
no.1 used to come to the Sanstha with alcohol and they used to take
them to some other place by vehicle and asked them to do work or
sweeping, throwing garbage etc. She has stated that the accused no.1
and Mayekar used to consume alcohol and used to sexually abuse
them. She has stated that the accused no.1 had sexually abused her
several times and that his friend had sexually abused PW17 and the
other girls.
94. PW18 has further deposed that the accused no.1 would come
near them every night and she and the other girls used to get scared of
him. She has stated that the accused no.1 would use condom and
force himself on them almost every night, and in case they screamed,
he used to slap them. She has further deposed that the accused no.1
thereafter would burn the condoms. She has also stated that the
accused no.1 had threatened them not to disclose the said incident to
anyone.
PPS 74 of 121
Conf 3-13 .doc
95. PW18 has deposed that the accused no.1 used to call Mayekar
whenever there was no one in the Sanstha. She has stated that once
after finishing the work of cleaning utensil, washing clothes etc. when
she went to the room which was upstairs, she saw accused no.1
Ramchandra sexually abusing victim girl 'J'. She has stated that she
was scared and went back to sleep pretending as if she had not seen
anything. She has stated that the accused no.1 had seen her and hence
he came down, woke her up, took her upstairs, beat her and threatened
her not to disclose the incident to anybody. The demeanor of the
witness as recorded by the learned Judge reveals that the witness was
weeping as she was narrating the said incident.
96. PW18 has deposed that Ramchandra used to ask PW17, and the
other victim girl 'P' to massage his legs and while doing so, he used to
gradually put his penis into their month and compel them to have oral
sex. She has stated that she had also seen accused no.1 having sexual
intercourse with 'P'. She has also stated that she had also seen one
PPS 75 of 121
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Khadke Sir having sexual intercourse with 'S'.
97. PW18 has further deposed that one day the accused no.1 and
Deepak Mayekar had come with two bottles of liquor. Accused no.1
asked her to give him head massage; thereafter he opened his shirt
buttons, took her into his arms and then left her. Thereafter accused
no.1 and Mayekar went upstairs, told her to bring food. He also
called PW17, 'P' and 'SO' upstairs.
ig She has stated that they poured
alcohol in two glasses and mixed something in it and gave them to
drink. Thereafter the accused Mayekar brought some condoms; he
removed their clothes and committed rape on them. She has deposed
that the accused No.1 used to give her money and tell her not to
disclose the incident to anyone. She has stated that she used to
handover the money to 'Mummy'-Accused No.9, the wife of accused
No.1. She has stated that the accused No.2- Nanabhau used to take the
girls to his house and make them do the work like washing utensils etc.
Some time he used to make them lie by his side and kissed them.
PPS 76 of 121
Conf 3-13 .doc
98. PW 18 has stated in her cross examination that she had not
complained about the physical and sexual abuse to anyone. She has
stated that they used to take her out to functions, entertainments and
dance programs. She has admitted that she has not disclosed this fact
to anyone. She has been residing in Khanda Colony since her
childhood. She has denied that she was tutored by PW17 or by ACP
Karandikar or PW1 Tulpule and Muthe to give statement against the
accused. She has denied the suggestion that she was not sexually
abused by the accused named above. She has reiterated that she was
not tutored by anyone to depose in the court. She has denied the
suggestion that there was no incident of sexual and physical abuse at
Khanda Colony. She has denied the suggestion that the accused No.2
Nanabhau had never touched or kissed her. She has also denied the
suggestion that she is deposing falsely at the instance of PW 17 and
PW1 Tulpule .
99. PW18 has stated that she did not know PW7 Tarte prior to the
incident and that she had met her for the first time along with PW22
PPS 77 of 121
Conf 3-13 .doc
Mangala Mote. She has stated that she goes to school. However, she
was unable to give the name of the school. The witness could write
and she had given the name of her teacher as Manasi and she had also
written the alphabets and some numbers upto 20. She has further
stated that she had developed her own sign language. She has denied
that Tarte used to take her studies after school.
100. She has deposed that she had stated in her statement under
Section 164 that while Ramchandra and Mayekar were drinking liquor,
Sonali and Kalyani had locked the door from outside. She has stated
in the statement under Section 164 that accused Nanabhau had made
her lie down on the bed and had kissed her. She has stated that she is
unable to state as to why the said statement is not recorded in her 164
statement. She has stated that she had deposed that she has not stated
in her statement under Section 164 Cr.P.C. that the wife of Nanabhau
had seen him doing the said act with her and that the wife of Nanabhau
had beaten him. She has explained that she had forgotten to state the
said fact in the statement. She has denied the suggestion that PW7
PPS 78 of 121
Conf 3-13 .doc
Sunanda Tarte, Muthe Madam and Samrin madam had tutored her to
depose in the court.
101. It is pertinent to note that though this witness was cross
examined at length, she was not asked any questions as provided under
Section 146 of the Indian Evidence Act to test her veracity or shake her
credibility. As a result, the substantive evidence of this witness that
the accused Ramchandra and Mayekar had sexually abused her and the
other victim girls in the manner deposed by her has virtually gone
unchallenged. Apart from bare denials, nothing cogent has been
elicited to discard or disbelieve her testimony.
102. The evidence of PW18 is sought to be discredited mainly on
the ground that the interpreter PW7-Sunanda Tarte was involved in
interpreting the statements of this witness and the other victims,
recorded under section 161 of the Cr.P.C. Relying upon the judgment
in Ah.Soi. Vs. Emperor AIR 1926 Calcutta 1922 it is submitted that
PW7 is not an independent witness.
PPS 79 of 121
Conf 3-13 .doc
103. The other plank of argument is that the learned Judge has not
recorded the signs made by the witness and as such, there was no
correct compliance of the provisions under 119 of the Indian Evidence
Act. In support of this contention reliance is placed on the decisions in
(i) Kumbhar Musa Alib v. State of Gujarat [AIR 1966
Cri.L.J. 542]
(ii) Kadungoth v. State of Kerala [1982 Cri.L.L.94]
(iii) Dilawarsab Alisab Jakati v. State of Karnataka
[2005 Cri.L.J. 2687]
(iv) Sunil Kumra @ Banti son of Shri Roshan Lal vs.
State of Himachal Pradesh [2012 Cri.L.J. 1743]
104. At the outset it may be mentioned that in State of Rajasthan Vs.
Darshan Singh (2012) 5 SCC 789 the Apex Court has held that:-
"18. The object of enacting the provisions of Section
119 of the Evidence Act reveals that deaf and dumb per-
sons were earlier contemplated in law as idiots. However,
such a view has subsequently been changed for the reason
that modern science revealed that persons affected with
such calamities are generally found more intelligent, and
to be susceptible to far higher culture than one was once
supposed. When a deaf and dumb person is examined in
the court, the court has to exercise due caution and take
PPS 80 of 121
Conf 3-13 .doc
care to ascertain before he is examined that he possesses
the requisite amount of intelligence and that he under-
stands the nature of an oath. On being satisfied on this, the
witness may be administered oath by appropriate means
and that also be with the assistance of an interpreter. How-
ever, in case a person can read and write, it is most desir-
able to adopt that method being more satisfactory than any
sign language. The law required that there must be a
record of signs and not the interpretation of signs.
19. In Meesala Ramakrishan v. State of A.P., (1994) 4 SCC
182, this Court has considered the evidentiary value of a
dying declaration recorded by means of signs and nods of
a person who is not in a position to speak for any reason
and held that the same amounts to a verbal statement and,
thus, is relevant and admissible. The Court further clari-
fied that `verbal' statement does not amount to `oral' state-
ment. In view of the provisions of Section 119 of the Evi-
dence Act, the only requirement is that witness may give
his evidence in any manner in which he can make it intelli-
gible, as by writing or by signs and such evidence can be
deemed to be oral evidence within the meaning of Section
3 of the Evidence Act. Signs and gestures made by nods or
head are admissible and such nods and gestures are not
only admissible but possess evidentiary value.
20. Language is much more than words. Like all other lan-
guages, communication by way of signs has some inherent
limitations, since it may be difficult to comprehend what
the user is attempting to convey. But a dumb person need
not be prevented from being a credible and reliable witness
merely due to his/her physical disability. Such a person
though unable to speak may convey himself through writ-
ing if literate or through signs and gestures if he is unable
to read and write.
PPS 81 of 121
Conf 3-13 .doc
A case in point is the silent movies which were understood
widely because they were able to communicate ideas to
people through novel signs and gestures. Emphasised body
language and facial expression enabled the audience to
comprehend the intended message.
21. To sum up, a deaf and dumb person is a competent wit-
ness. If in the opinion of the Court, oath can be adminis-
tered to him/her, it should be so done. Such a witness, if
able to read and write, it is desirable to record his state-
ment giving him questions in writing and seeking answers
in writing. In case the witness is not able to read and
write, his statement can be recorded in sign language with
the aid of interpreter, if found necessary. In case the inter-
preter is provided, he should be a person of the same sur-
rounding but should not have any interest in the case and
he should be administered oath."
105. In Ah. Soi. (supra) one of the prosecution witnesses had
interpreted the evidence to the accused. It was under these
circumstances it was held that a witness who had taken an active part
during the police investigation, who had given evidence in the
committing Magistrate's Court on behalf of the prosecution and who is
found to be ready and willing to give evidence in the sessions Court on
behalf of the prosecution against the man who is charged with serious
offences under section 302 and 304 of the IPC should have been
chosen to act as an interpreter is a procedure stated to call forth for
PPS 82 of 121
Conf 3-13 .doc
severe condemnation.
106. In Kadungoth Alab (supra) one of the witnesses was deaf and
dumb and the judgment as well as the deposition did not reveal as to
who has assisted the court in eliciting the answers in chief examination.
Relying upon the judgment in Ah Soi(supra) the Kerala High Court
held that the evidence of a deaf and dumb witness ought to have been
recorded with the help of an expert or some person who is very much
familiar with the witness and who is not a prosecution witness.
107. In Dilwar Sa Alisa Jakati (supra) the Karnataka High Court has
held that the Court while recording the evidence of deaf and dumb
witness, must record both signs as well as interpretations of the
interpreter and then only it becomes admissible under the Indian
Evidence Act.
108. In Sunil Kumar @ Banti (supra) the trial Court had not recorded
the signs made by the prosecutrix in answer to the question put to her
PPS 83 of 121
Conf 3-13 .doc
and also the manner in which the prosecutrix was made to understand
by the interpreter. It was therefore held that there was no compliance
of section 119 of the Evidence Act. The Himachal Pradesh High Court
further held that the expert or the interpreter was not familiar with the
prosecutrix. It was further held that the learned trial court cannot be
expected to have anything more than a layman's knowledge in
conversing with a deaf and dumb person and that it was highly
improbable on the learned trial court to embark upon the examination
of the prosecutrix with the help of an expert or a person not familiar
with her mode of idea of day to day life. It was held that no other
person than her parents and near relatives conversant with the signs
and gestures would have been a competent and relevant witness to state
about the signs and gestures made in answers to the queries put to her.
109. Reverting to the facts of the present case, it is seen that after
registration of the FIR the prosecution had availed services of PW7, a
teacher by profession who has done a special course for the hearing
impaired, to interact with the children. PW7 had spent several days
PPS 84 of 121
Conf 3-13 .doc
with the children, interacted with them, and learnt their sign language
which she has explained and interpreted in brief in her examination in
chief.
110. PW7 had assisted the Investigating Agency as well as the Judicial
Magistrate to record their statements under section 161 and 164 of the
Cr.P.C. Hence, it would have been ideal or advisable to engage any
other independent person as an interpreter. However, failure to do so
would not ipso facto vitiate the trial unless it is shown that availing
services of PW7 as an interpreter has materially prejudiced the accused
and has resulted in failure of justice. In Ganga Singh (Supra) the Apex
Court has held that:
"The settled position of law is that the prosecution is
required to establish the guilt of the accused beyond
reasonable doubt by adducing evidence. Hence, if the
prosecution in a given case adduces evidence to establish
the guilt of the accused beyond reasonable doubt, the
court cannot acquit the accused on the ground that there
are some defects in the investigation, but if the defects in
the investigation are such as to cast a reasonable doubt
in the prosecution case, then of course the accused is
entitled to acquittal because of such doubt."
PPS 85 of 121
Conf 3-13 .doc
111. It is pertinent to note that, PW7 is an independent as well as an
expert witness. She had no personal interest in the matter and was
administered oath. As stated earlier, she had spent several days with
these girls to understand their sign language. She has in her deposition
described some of the signs made by the girls. The learned Judge had
also recorded the material signs/gestures made by PW18 who was also
administered oath. PW18 was cross examined by five advocates who
were representing the accused and none of the advocates had made a
grievance that the questions put by them to the witness were not being
interpreted properly or that PW7 was not interpreting the answers
correctly. The accused had not questioned her fairness or competence
to interpret the evidence of PW18. Hence, we have no reason to
believe that she was biased against or hostile towards the accused or
that she was favourably inclined towards the prosecution.
112. The learned counsels for the accused have made much ado of the
statement recorded by the learned Judge that she herself being a
daughter of deaf and dumb person, she could easily understand the sign
PPS 86 of 121
Conf 3-13 .doc
language of PW18. In our considered view, no much relevance can be
given to the said observation as even otherwise the learned Judge has
recorded that the gestures made by PW18 were so perfect that even a
layman could understand them. These observations were not disputed
by any of the accused before the trial court. None of the accused or
their advocates had raised a grievance that they were unable to
understand the gestures made by PW18 or that they were unable to
comprehend what PW18 was attempting to convey through such
gestures. All these facts only go to prove that the gestures of PW18
were very clear and could be understood by the accused as well as by
the Judge even without the aid of the interpreter. Hence, taking
assistance of PW7 to interpret the evidence of PW18 or not recording
each and every gesture or sign would not vitiate her evidence.
Considering all the above facts, in our considered view there is proper
compliance of section 119 of Indian Evidence Act. The accused have
not been able to demonstrate that any material prejudice has been
caused to them because of the omission to record the sign language or
for availing services of PW7 to interpret the evidence. Hence there
PPS 87 of 121
Conf 3-13 .doc
was no failure of justice and consequently irregularity, if any, either in
investigation or trial would not vitiate the entire trial.
113. It is pertinent to note that notwithstanding her physical
deficiencies, PW18 has withstood incisive cross examination. Her
testimony amply proves that the accused no.1 who was one of the
Directors of Kalyani Sanstha, and his friend Mayekar (A3) had
subjected her, PW17 and the other mentally challenged inmates of
Kalyani Sanstha including PW17 to physical as well as sexual abuse.
The evidence of this witness sufficiently corroborates the testimony of
PW17.
114. It is true that there are some inconsistencies, omissions in the
evidence of PW 17 and 18. In Mritunjoy Biswas vs. Pranab @ Kuti
Biswas & Anr. AIR 2013 SC 3334 the Apex Court has held as under:
It is well settled in law that the minor discrepancies
are not to be given undue emphasis and the evidence
is to be considered from the point of view of
trustworthiness. The test is whether the same
inspires confidence in the mind of the court. If the
evidence is incredible and cannot be accepted by the
PPS 88 of 121
Conf 3-13 .doc
test of prudence, then it may create a dent in the
prosecution version. If an omission or discrepancy
goes to the root of the matter and ushers in
incongruities, the defence can take advantage of
such inconsistencies. It needs no special emphasis to
state that every omission cannot take place of a
material omission and, therefore, minor
contradictions, inconsistencies or insignificant
embellishments do not affect the core of the
prosecution case and should not be taken to be a
ground to reject the prosecution evidence. The
omission should create a serious doubt about the
truthfulness or creditworthiness of a witness. It is
only the serious contradictions and omissions which
materially affect the case of the prosecution but not
every contradiction or omission (See Leela Ram
(dead) through Duli Chand v. State of Haryana and
another28, Rammi alias Rameshwar v. State of
M.P.29 and Shyamal Ghosh v. State of West Bengal .
115. In appreciating evidence of these witnesses, one cannot loose
sight that they are mentally/physically disabled. They were frightened
and were under psychological pressure due to trauma and agony
suffered at the hands of accused. Under these circumstances, these
witnesses could not be expected to give an accurate resume of the
events. The minor discrepancies or inconsistences in her evidence are
but natural and the same does not vitiate the trial.
PPS 89 of 121
Conf 3-13 .doc
116. It is also pertinent to note that PW17 and 18 and the other
inmates of Kalyani Sanstha were examined by PW12 and 13. PW12
Dr. Rajesh Sukhdev, was an associate Professor in forensic medicine
whereas PW13 was a gynecologist at KEM Hospital. Pursuant to the
request made by the Investigating Officer PW21 Dr. Rashmi
Karandikar, vide letter dated 10th April, 2011 they had gone to sub-
District Hospital at Karjat and examined the victim girls including PW-
17 and 18. PW13 Padmaja Samant, had examined the said girls to
ascertain whether they were sexual abused. Whereas PW12 Dr. Rajesh
Sukhdev and Dr. Harish Pathak had examined the girls to ascertain
whether they had any physical injuries and also for the purpose of age
determination. Dr. Ajita Nayak had conducted Psychiatric assessment
of the victim girls. The evidence of PW 12 and 13 reveals that the
inmates of Kalyani Sanstha were physically as well as sexually abused.
They have produced Medical examination report at Exh.100 to 117
colly., which indicate that the said victim girls had following injuries:
PPS 90 of 121
Conf 3-13 .doc
Sr. Name Age History Injuries and injuries Findings-
and on genitals opinion
Exh
1 MA 14-15 Healed scar on left In view of
Exh Yrs. hypochondriac region presence of
100 of abdomen, circular scars, chronic
coly 0.5 cm. whitish. physically
Healed scars on lt. & abused. Sexual
rt. forearm size 1.5 cm abuse cannot be
to 1 cm. whitish. ruled out.
Healed Scar (on right
forearm ). Did not
allow genital
examination,
2 J Prov. Unable to
ig No external injury . Signs of
Exh age 18 give Did not allow genital physical abuse.
101 yrs history. examination Opinion about
coly sexual assault
cannot be given
as survivor did
not allow genital
examination.
3 Pi Prov. Unable to Healed circular scar on There are signs
Exh age 18 provide lt. breast region. of physical
102 years details Healed circular scar on abuse. Sexual
coly rt. side of abdomen. 3 abuse cannot be
healed scars on thigh ruled out.
in circular and whitish
in colour. Two healed
scars on rt. Thigh.
Healed scar present at
other part of vagina
between rt. Labia
majora & minora.
Did not allow
examination of hymen
PPS 91 of 121
Conf 3-13 .doc
Sr. Name Age History Injuries and injuries Findings-
and on genitals opinion
Exh
4 G 12 -14 Sonali beat No fresh or old Physical and
Exh yrs her and injuries. sexual abuse
103 gave burn cannot be ruled
coly injuries. Scared and un- out by
Could not coperative hence examination
give much genital examination conducted
relevant not conducted.
history.
5 CP Prov. Papa beat Healed above breast Physical abuse
exh age her on size 0.5cm x 0.5 cm was present.
coly
15-16
yrs
chest and
inserted
whitish. Sexual abuse
cannot be
pencil in Two healed linear scars opined upon.
her vagina over middle of sternal
and gave region of chest above
burns on xyphaid area, parallel
her chest. and horizontal each of
size 1.5 cm X 0.1 cm
Genital examiantion
could not be conducted
as patient could not lie
down.
6 V Prov Unable to Linear healed scar In view of
Exh age 12 communic present on flixor aspect absence of any
105 to 14 ate or of right forearm, fresh or old
coly yrs. narrate horizontal of size 3 cm injuries on body
history of x .2 cm whitish and genitals,
physical Genetalia no injuries. opinion
abuse Patient mensturating, regarding past
did not allow close sexual abuse
examination of hymen. cannot be given.
PPS 92 of 121
Conf 3-13 .doc
Sr. Name Age History Injuries and injuries Findings-
and on genitals opinion
Exh
7E PO Prov Is very shy Old healed scar on left Physical abuse
Exh age and afraid side of face. 3 healed had taken place.
106 14- 15 doesn't scars on rt. Elbow Sexual abuse
coly yrs give region. cannot be
history of opined upon.
sexual Did not allow genital
abuse even examination.
on asking.
Gives
history of
physical
abuse.
8 PR Prov Gave 2 healed scars on chest Subjected to
Exh age history of possible due to burns/ chronic physical
107 12 -14 physical cigarrette abuse. Presence
coly yrs abuse of sexual abuse
Hymen intact cannot be
opined upon.
9 PW Prov Gave Healed scars on rt Signs of chronic
Exh 19 age history of palm, healed scars on physical abuse
108 15 -16 physical rt. Side of chest and and vaginal
coly yrs abuse. And abdomen penetration in
Sexual and on the back , past
abuse by possible due to pointed
Papa and weapon
Rohan Hymen appeared
patilous on separation
of labia.
Scared of penetrating
examination, hence not
done.
PPS 93 of 121
Conf 3-13 .doc
Sr. Name Age History Injuries and injuries Findings-
and on genitals opinion
Exh
10 PW Prov Deaf, Healed scar on rt. Physical abuse
Exh 18 age hence Forehead, healed was inflicted
109 17- 18 Communic linear scar on rt. Index sexual assault
coly yrs ated in finger cannot be ruled
sign 3 healed scars on left out
language, forearm
gave healed scar on rt. Knee
history joint, possible due to
physical pointed weapon, knife
and sexual and cigarette burns
abuse / A1 Genital examination
inserted
ig not done as history of
finger in genital contact not
vagina. given for more than 30
days.
11 SU Prov History of Multiple healed scars Evidence of
age physical on left arm- possible physical abuse
Exh 16- 17 and sexual due to nail scratching, and torture.
110 yrs abuse healed scar on rt. Leg
coly possible due to blunt Past sexual
object abuse cannot be
Hymen appeared rule out.
patulous (did not allow
proper separation)
Genital examination
not done as patient
afraid and very
apprehensive.
PPS 94 of 121
Conf 3-13 .doc
Sr. Name Age History Injuries and injuries Findings-
and on genitals opinion
Exh
12 SA Prov. History of Seven injuries -healed Physical abuse
Age physical scar on lft. face , rt and Sexual
Exh 15-16 and sexual forearm, rt thigh, abuse has taken
111 yrs abuse multiple healed scars place
coly on rt leg, two healed
scars on left leg, healed
scar on rt. Thigh
medially and on inner
aspect
- possible due to
cigarette burns
ig Hymen patulous
ruptured.
13 SE 12-14 Physical 5 injuries- healed scars Chronic
yrs abuse by on rt. side of neck, physical abuse
Exh Papa and chest, lft. arm and on and torture.
112 Sonali tai rt. Thigh
coly gave burn possible by cigarette, Sexual abuse
injury hot heated front cannot be ruled
portion of spoon, out.
end of pointed
weapon.
Hymen ruptured.
14 SH 11-12 Extremely Healed abrasion on rt. Physical
yrs disturbed, Hand , 3 scars on left injuries, chronic
Exh not willing neck region. abuse was
113 to come to present
coly examinatio Genital examination sexual abuse
n could not be done, as cannot be ruled
patient did not allow. out.
PPS 95 of 121
Conf 3-13 .doc
Sr. Name Age History Injuries and injuries Findings-
and on genitals opinion
Exh
15 RI 14-15 Mute Healed ligature marks Physical abuse
yrs -history of on front neck. 3 scars and torture
Exh physical on lft. Side neck, Sexual abuse
114 abuse, healed scar on left leg cannot be
coly strangling injury is possible by opined or ruled
with rope rope strangulation, and out.
at Khanda by hard and blunt
Colony object.
Did not allow Genital
ig examination .
16 PW 18 yrs A1 gave 11 injuries- scar on rt Use of Force
17 burns by chest, rt. Breast, and physical
Exh cigarettes, multiple scars & torture (chronic)
115 beaten on abrasions on back, on and vaginal
coly chest by lower part of back & penetration in
broken thigh the past
glass, and possible during
bite on struggle , cigarette
chest, burn burns.
injuries by
hot spoon Hymen is absent
on thigh
and chest,
sexual
abuse
PPS 96 of 121
Conf 3-13 .doc
Sr. Name Age History Injuries and injuries Findings-
and on genitals opinion
Exh
17 SK 18 yrs Physically 5 injuries- 3 healed Sexual assault
abused, scars on lft.side arm, cannot be ruled
Exh beaten, fore arm, left knee. out
116 kicked,
coly burned Hymen patulous
with
cigarettes.
Feeling
awkward
and shy.
Gave name
of Khadke
Sir,
Mayekar
-sexual
abuse
Sonali tai
burnt her.
18 ST 15-16 Physical 2 injuries- healed scar Chances of
yrs abuse by on dorsal lft. Hand and physical abuse.
Exh Papa Aaji in between index and
117 and Sonali middle finger, Sexual abuse
coly and on left arm. cannot be
Injury possible by hard confirmed or
and blunt object, and ruled out.
second by sharp
pointed end or weapon
Hymen normal.
vaginal examination
not done.
117. The medical certificates at exh.63 to 69 colly. as well as
PPS 97 of 121
Conf 3-13 .doc
exh. 100 to 117 clearly indicates that many inmates of the sanstha,
including PW17 and some girls of tender age were subjected to severe
physical and sexual abuse. The evidence indicates that genital
examination of PW18 was not done as she had not given history of
genital contact for more than 30 days. It is to be noted that a medical
witness is called as an expert witness to assist the court. He is not a
witness of fact. He is expected and required to medically examine the
victim and put forth before the court all the material data collected in
the course of examination so as to enable the court to form its own
opinion based on such data. In the instant case the victims being
physically and mentally challenged orphans, who were under
tremendous mental stress and trauma, the medical officer was expected
to conduct a thorough medical examination and the decision whether
to examine the victim or not should not have been based on the history
given by the victim.
118. Be that as it may, the medical evidence is only a
corroborative piece of evidence. In Gangabhawani v. Rayapatti
PPS 98 of 121
Conf 3-13 .doc
Venkat Reddi & Ors. AIR (2013) SS 3681 the Apex Court has held :
" Where the eye witnesses account is found credible and
trustworthy, a medical opinion pointing to alternative
possibilities cannot be accepted as conclusive., The eye
witnesses account requires a careful independent
assessment and evaluation for its credibility, which
should not be adversely prejudged on the basis of any
other evidence, including medical evidence, as the sole
touch stone for the test of such credibility...
Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular
evidence stands crystalized to the effect that though the
ouclar evidence of the witness has greater evidential
value visa-a-vi medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of
evidence. However, where the medical evidence goes so
far that it completely rules out all possibilities of the
ocular evidence being true, the ocular evidence may be
disbelieved."
119. It is also well settled that absence of injuries on the private
parts of the victim will not by itself falsify the case of rape nor can it
be construed as evidence of consent. Furthermore, to constitute the
offence of rape it is not necessary that there should be complete
penetration of penis. Partial penetration within the labia manjora or
the vulva or pudenda with or without emission of semen constitutes an
offence of rape. The testimony of PW 18 therefore cannot be rejected
PPS 99 of 121
Conf 3-13 .doc
out right merely because she has not been examined by the doctor to
ascertain whether she was sexually abused.
120. In the instant case, the medical evidence duly corroborates that
PW17 as well as many other inmates of Kalyani sanstha were sexually
abused. These girls whose mental faculties were underdeveloped and
some of whom were minors between age ground of 11-14 yrs could not
have consented, as consent involves understanding of the effect of such
consent. Similarly, a mere passive submission or helpless resignation
either under duress or compulsion does not constitute consent. Hence
the only irresistible conclusion is that these girls were sexually abused
and raped.
121. It is to be noted that PW17, 18 and other victim girls were earlier
the inmates of Anand Sanstha. These victims were transferred to
Kalyani sanstha somewhere in the year 2009. The Investigating Officer
PW21 was questioned by the accused whether she had made any
attempt to collect the medical reports of the victims before they were
PPS 100 of 121
Conf 3-13 .doc
transferred to Kalyani Sanstha. PW 21 has stated that the medical
records for the period from 2003 to 2008 were not available. She has
further stated that she had not collected the medical report of the girls
during the period between 2008 to 2011 as the doctor of the said
sanstha who used to check the girls was not a gynecologist, but was an
ayurvedic doctor. In the light of the said statement it is sought to be
insinuated that the victims could have been subjected to physical and
sexual abuse before they were transferred to Kalyani Sanstha. It was
also suggested to PW21 that she had prepared false statements of the
victims as per the directions of the High Court and that she had
implicated the accused in a false case under pressure of the High
Court. Needless to state that PW21 has denied both these suggestions.
122. It may be mentioned that PW17 and PW18 have not made any
accusations against the directors or employees of Anand Sanstha but
have made specific allegations of sexual abuse against the accused
no.1 and accused no.3 even though there was no reasons for these girls
to make such serious allegations against these accused. Furthermore,
PPS 101 of 121
Conf 3-13 .doc
the accused has not brought on record either through cross examination
or in his statement under Section 313 of Cr.P.C. that the victims had
any reason to make false allegations against him.
123. It is to be borne in mind that these children were abandoned by
their families and shunned by the society. The accused no.1 who was a
Director of Kalyani Santsha, an orphanage for physically and mentally
challenged girls portrayed himself to be a savior, protector and
guardian of such girls. The girls were totally dependent on him for
food, clothing, shelter and the other basic necessities for survival.
They had nowhere to go and no one to confide in or complain to. and
had to accept the situation as part of their life, by suppressing their
feelings, emotions and anger. It was only after the committee
appointed by this court took the girls into confidence and encouraged
them to give vent to their feelings that they expressed their fear, shame
and anger as it is evident from the testimony of Dr. Harish Shetty.
Despite such adversities these girls have named the accused nos.1 and
3 as the perpetrator of the crime. Hence non production of medical
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reports does not affect credibility of these witnesses as we have no
reason to doubt thier evidence.
124. It is also pertinent to note that the committee members as well as
the interpreter had no animus against the accused. Hence there is no
merit in the contention that the witnesses had been tutored to depose
against the accused. The suggestion to PW21 that she had recorded
false statements of the victims and falsely implicated the accused as
per the directions and under the pressure of this court does not merit
any consideration and only shows the shallow nature of the defence.
125. It is true that the prosecution has not examined the other inmates
of the sanstha. However, the same is not fatal as most of these girls
being mentally challenged were not competent witnesses. It is well
settled that the prosecutrix is not an accomplice and conviction can be
safely recorded on uncorroborated testimony of the prosecutrix unless
the testimony of the prosecutrix suffers from basic infirmity and the
probability factor renders it unworthy of credence and there are
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compelling reasons for seeking corroboration.
126. In the case of Kamalanantha & Ors. vs. State of Tamil Nadu
(2005) 5 SCC 194 the Apex Court has held that "The prosecutrix is not
an accomplice, The evidence of the victim of sexual assault, if it
inspires confidence can be founded on her testimony alone unless there
are compelling reasons for seeking corroboration. Her evidence is of
more relevance than that of a injured witness. In the case of sexual
assault corroboration as a condition for judicial reliance is not a
requirement of law, but a guidance of prudence".
127. In Bhupindra Sharma vs. State of Himachal Pradesh AIR 2003
SC 4684 the Apex Court has reiterated that "the necessity of
corroboration except in the rarest of rare cases is to equate one who is
a victim of the lust of another with an accomplice to a crime and
thereby insult womanhood. It would be adding insult to injury to tell a
woman that her chain of rape will not be believed unless it is
corroborated in the material particulars as in the case of an accomplice
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to crime".
128. In the instant case the evidence of the PW18, which finds
sufficient corroboration on material particulars from the evidence of
PW17, amply proves that the accused nos.1 and 3 had sexually abused
them and the other mentally challenged inmates of Kalyani Sanstha, a
children home set up for reception and care of orphan and disabled
children. The medical evidence as well as the evidence of PW3, PW5
and PW 11 corroborates that these victims were physically and
sexually abused and were undergoing emotional and psychological
trauma.
129. It will not be out of place to mention here that CWC is a primary
body for addressing needs of children in need of care and protection.
The CWC is required to play a role of watchdog at the district level
and ensure that standards of care are maintained and the incidents of
exploitation and abuse in all child care institutions are addressed. In
the instant case PW1 Neela Tulpule , the Chairperson of CWC Raigad.
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has stated that the girls in Kalyani sanstha were earlier in Anand
Mahila Bal Kalyan Shikshan and Punarvasan sanstha which was
housed in the same premises, and that the said girls were transferred to
kalyani sanstha sometime in the year 2010. She has denied that it is
mandatory for CWC to call the particulars and obtain the photographs
of the children above two years at the time of transfer from one sanstha
to another. She has submitted that she has not called for the record
about the family of any of the child in the child welfare sanstha
situated at Raigad District. She has admitted that she has not called
for the records about the family background of the girls who are in
Kalyani Sanstha. She has stated that she does not know the date or the
month when Kalyani sanstha got approval or recognition from the
Government of Maharashtra. She has stated that she has got the
approval sometime in the year 2009 or 2010. She has stated that she
does not have any medical reports of the girls who were sent to
Kalyani santsha. She has admitted that she had not requested the
medical officer to examine the girls before they were transferred to
Kalyani sanstha. She has stated that she herself and one Smita Kale of
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CWC had signed the transfer order transferring the girls to Kalyani
sanstha.
130. PW1 has claimed that the members of CWC used to visit the
sanstha and supervise hygiene, food, diet, health care etc provided by
the sanstha. She has deposed that from the period 2009 to 2010 she
had visited the sanstha about 4-6 times and on every such visit they
used to interact with the children about their welfare and health. She
has further deposed that the committee had not found any fault or
irregularity in respect of hygiene, food, diet etc provided to the
children by Kalyani sanstha. She has admitted that she has never made
any periodical review in respect of the physical and mental health of
the children in the said institution. She has stated that she did not
notice any irregularity, discrepancy or sexual assault on the inmates of
the said sanstha and that none of the members had doubted that the
inmates were exploited or sexually abused.
131. It is however to be noted that the evidence of PW3 and PW5, the
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members of the Committee appointed by the High Court vis-a-vi the
report at Exh.58 reveals that the girls were in Anand Sanstha from
2003 to 2007 and that seven girls had died during this period. The
evidence of these witnesses vis-a-vi the report indicates that CWC was
never involved in any matter of the home related to the death of the
children. The girls from Anand Sanstha were transferred to Kalyani
sanstha in the year 2007, whereas Kalyani sanstha, a family run trust
was registered only in the year 2009. There was no registration for the
period between 2007 to 2009. The evidence of these witnesses vis-a-vi
the report further reveals that there was total lack of proper
infrastructure and basic amenities in kalyani sanstha. The report
further indicates that though the CWC members had stated that they
had visited Kalyani sanstha atleast four times, the committee could
find only one entry for the year 2009. The report further indicates that
the chairperson was not regular in attending the meetings. The above
facts clearly indicate that the CWC members have not acted in the best
interest of the child. The insensitive role of CWC in adopting 'I see no
wrong and hear no wrong.' greatly perturbs our judicial conscience.
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Had they performed their duties sincerely and with sensitivity the truth
would have been unearthed and these young helpless vulnerable
victims would not have been physically, sexually and emotionally
traumatized. However, considering the fact that the PIL is still pending
we do not intend to delve into the said matter any further.
132. Reverting to the charges leveled against the accused, the
evidence adduced by the prosecution therefore sufficiently proves that
the accused nos.1 and 3 were the perpetrators of the crime. The
accused no1, who was one of the directors of the sanstha had total
dominion over these girls. The evidence of PW17 and 18 amply proves
that the accused no.1 took advantage of his position and not only
committed rape on these vulnerable girls and further would put his
penis in the mouth of PW17 and other victim girls and compel them to
have oral sex. The prosecution has thus proved that the accused no.1 is
guilty of having carnal sex against the order of nature. sexual abuse.
The prosecution has therefore established beyond reasonable doubt the
guilt of the accused no.1 for offence under Sections 376 (2)(c) and 377
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of Indian Penal Code.
133. The prosecution has also established beyond reasonable doubt
that the accused no.1 had called his friend Mayekar (A3) to the sanstha
and that both of them had consumed alcohol and had also compelled
the victims to consume alcohol and thereafter had sexually abused
them. The evidence adduced by the prosecution therefore proves that
both these accused had raped PW17 and 18 in furtherance of their
common intention and had thereby committed gang rape which is
punishable under Section 376(2)(g) of Indian Penal Code and Section
25 of the Juvenile Justice Act.
134. The evidence of PW18 and PW17 also proves that the accused
no.2 had outraged their modesty by kissing them and sometimes by
making them lie by his side. The prosecution has thus established
beyond reasonable doubt the guilt of the accused no.2 for offence
punishable under Section 354 of the Indian Penal Code.
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135. The evidence of PW17 and 18 proves that the accused no.6 and
accused no.10 used to physically abuse them. Their evidence amply
proves that the accused no.1 used to burn them with cigarettes butts.
PW17 has also deposed that they were scared of accused nos.6 as she
used to give them burns by hot pan. The evidence of PW18 also
indicates that the accused no.1 had banged her head on the wall, there
is also evidence to show that the accused no.10 had also inflicted
injuries on these victims. The medical evidence proves that PW17 was
physically abused. There were scars caused by cigarette burns, blunt
object, etc. The medical evidence also proves that PW18 had a scar on
the right side forehead, scars on left forearm caused possibly due to
cigarette burns. The medical evidence further proves that the other
inmates also had several injuries all over their body including cigarette
burns on genital area and inner aspect of thighs, breast etc. The
evidence of PW17 and 18 coupled with the medical evidence therefore
proves beyond reasonable doubt that the accused nos.1, 6 and 10 had
voluntarily caused hurt to these victim girls by means of cigaratte
burns, hot spoons, tava etc which constitutes offence under Section
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324 of the Indian Penal Code and 23 of Juvenile Justice Act, 2000.
136. It is pertinent to note that the learned trial Judge has also
held the accused nos.1 and 6 guilty of offence punishable under
Section 307 of the Indian Penal Code. Having analysed the entire
material on record, in our considered view, there is no evidence to
indicate that the accused nos.1 and 6 had attempted to cause death of
any of the victims by committing any such act or by inflicting any such
injury with an intention or knowledge that if not prevented or
intercepted, it would be sufficient to cause death. Hence the conviction
of the accused nos.1 and 6 for the offence under Section 307 of the
Indian Penal Code cannot be sustained. Similarly, there is no
evidence to hold the accused no.1 guilty of offence under Section 506
(ii) of Indian Penal Code.
137. The learned Judge has also held Prakash Vithal Khadke guilty of
offence under Section 376 of Indian Penal Code. It is to be noted that
PW18 had stated that she had seen the accused no.4 having sexual
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intercourse with SK, one of the inmates of Kalyani sanstha. The
prosecution has not examined the said victim girls. Besides PW18 had
not stated the said fact in her statement under Section 161 and 164 of
Cr.P.C. There is no other cogent and conclusive evidence to prove the
guilty of the accused no.4 for offence under Section 376 of Indian
Penal Code.
138. The learned trial Judge has also held the accused nos.6 and 10
guilty of offences under Section 376 (2)(c), 376 (2)(g) and 377 with
aid of Section 109 of IPC.
" Section 109 IPC provides that whoever abets any
offence, shall, if the act abetted is committed in
consequence of the abetment, and no express provision
is made for the punishment of such abetment, be
punished with the punishment provided for the main
offence.
14. Section 107 IPC defines "abetment of a thing" as
under:
"107. Abetment of a thing.--A person abets the doing of
a thing, who-- First -- Instigates any person to do that
thing; or Secondly-Engages with one or more other
person or persons in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of
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that thing; or Thirdly -- Intentionally aids, by any act or
illegal omission, the doing of that thing.
Explanation 1.--A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that
thing."
139. In Kulwant Singh @ Kulbansh Singh v. State of Bihar (2007)
15 SCC 670, the Apex Court has held as under:
"Where a person aids and abets the perpetrator of a
crime at the very time the crime is committed, he is a
principal of the second degree and Section 109 applies.
But mere failure to prevent the commission of an offence
is not by itself an abetment of that offence. Considering
the definition in Section 109 strictly, the instigation must
have reference to the thing that was done and not to the
thing that was likely to have been done by the person
who is instigated. It is only if this condition is fulfilled
that a person can be guilty of abetment by instigation.
Section 109 is attracted even if the abettor is not present
when the offence abetted is committed provided that he
had instigated the commission of the offence or has
engaged with one or more other persons in a conspiracy
to commit an offence and pursuant to the conspiracy
some act or illegal omission takes place or has
intentionally induced the commission of an offence by an
act or illegal omission. In the absence of direct
involvement, conviction for abetment is not sustainable."
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140. Reverting to the facts of the present case, the accused 6 and 10
are the two ladies who were employed in Kalyani sanstha. They were
in no manner involved in aiding, abetting or instigating the accused
nos.1 and 3 to commit the offence of rape. There is no evidence on
record to indicate that they had either given physical assistance or
verbal encouragement to the accused nos.1 and 3 or that they had in
manner facilitated the commission of crime. The conviction of these
accused for offence under Section 376(2)(c), 376(2)(g) and 377 r/w.
109 of IPC cannot be sustained.
141. Now coming to the appeal against acquittal and power of the
appellate court to re-appreciate, review or reconsider evidence and
interfere with the ordder of acquittal, the Apex Court in Mrinaldas vs.
State of Tripura (2011) 9 SCC 479 has reiterated the principles as
under:
" It is clear that in an appeal against acquittal in the
absence of perversity in the judgment and order,
interference by this Court exercising its extraordinary
jurisdiction, is not warranted. However, if the appeal is
heard by an appellate court, being the final court of fact,
is fully competent to re- appreciate, reconsider and review
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the evidence and take its own decision. In other words,
law does not prescribe any limitation, restriction or
condition on exercise of such power and the appellate
court is free to arrive at its own conclusion keeping in
mind that acquittal provides for presumption in favour of
the accused. The presumption of innocence is available to
the person and in criminal jurisprudence every person is
presumed to be innocent unless he is proved guilty by the
competent court. If two reasonable views are possible on
the basis of the evidence on record, the appellate court
should not disturb the findings of acquittal. There is no
limitation on the part of the appellate court to review the
evidence upon which the order of acquittal is found and to
come to its own conclusion. The appellate court can also
review the conclusion arrived at by the trial Court with
respect to both facts and law. While dealing with the
appeal against acquittal preferred by the State, it is the
duty of the appellate court to marshal the entire evidence
on record and only by giving cogent and adequate reasons
set aside the judgment of acquittal. An order of acquittal
is to be interfered with only when there are "compelling
and substantial reasons" for doing so. If the order is
"clearly unreasonable", it is a compelling reason for
interference. When the trial Court has ignored the
evidence or misread the material evidence or has ignored
material documents like dying declaration/report of
ballistic experts etc., the appellate court is competent to
reverse the decision of the trial Court depending on the
materials placed."
142. Having analysed, re-appreciated and reconsidered the
entire evidence, particularly the evidence of PW18 we are of the view
that there is absolutely no evidence to prove that the accused no.2
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Nanabhau, accused no.5 Kalyani and accused no.9 Surekha have
committed offence of rape or abetment of rape. There is also no
evidence on record to prove that the accused who have been acquitted
by the learned Sessions Judge were involved in committing offences
for which they were charged with and have been acquitted. Hence we
are not inclined to interfere with the order of acquittal. The appeal
filed by the State has no merits and hence the same is liable to be
dismissed.
143. Under the circumstances and in view of the discussion supra,
we pass the following order:
a) The Reference made by the learned Addl. Sessions Judge, Gr.
Bombay, at Mumbai is rejected.
b) The Criminal Appeal No.426 of 2013 filed by the accused no.1
Ramchandra Sambhaji Karanjule is partly allowed.
i) The conviction and sentence under section 302, 307 and 506 (ii)
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of Indian Penal Code is hereby set aside.
ii) The conviction under Section 376(2)(c) Indian Penal Code is
maintained and the sentence is reduced to rigorous imprisonment for
10 years with fine of Rs.50,000/- i.d. to undergo R.I. for two years.
iii) The conviction under Section 376(2)(g) Indian Penal Code is
maintained and the sentence is reduced to rigorous imprisonment for
10 years with fine of Rs.50,000/- i.d. to undergo R.I. for two years.
iv) The conviction and sentence under Section 377 and 324 of Indian
Penal Code and Section 23 and 25 of the Juvenile Justice (Care and
Protection of Children) Act 2000 is maintained .
v) The substantive sentence of imprisonment shall run concurrently.
The period of detention undergone shall be set off under Section 428 of
Cr.P.C.
c) The Criminal Appeal No. 416 of 2013 filed by the accused no.4
Prakash Vitthal Khadke is allowed.
i) Conviction and sentence under Section 376 of Indian Penal Code
is hereby set aside.
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d) The Criminal Appeal No.452 of 2013filed by Accused no.2
Khandu Nanji Kasbe @ Deepak Mayekar is partly allowed.
i) Conviction under Section 376 (2)(g) of is maintained. Sentence
reduced to rigorous imprisonment for 10 years with fine of Rs.50000/-
i.d. S.I. for two years.
ii) Conviction and sentence under Section 25 of Juvenile Justice
(Care and Protection of Children) Act 2000 is maintained.
iii) The substantive sentence of imprisonment shall run concurrently.
The period of detention undergone shall be set off under Section 428 of
Cr.P.C.
e) The Criminal Appeal No.508 of 2013 filed by Accused no. 6
Sonali Mohan Badade is partly allowed.
i) Conviction and sentence under Section 307 r/w. 34 , 376(2)(c),
376 (2)(g) and 377 r/w. 109 of Indian Penal Code is hereby set aside.
ii) Conviction and sentence under Section 324 of Indian Penal Code
and 23 of Juvenile Justice (Care and Protection of Children) Act 2000
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is maintained.
iii) The substantive sentence of imprisonment shall run concurrently.
The period of detention undergone shall be set off under Section 428 of
Cr.P.C.
f) The Criminal Appeal No.528 of 2013 filed by accused No.2
Nanabhau Laxman Karanjule is hereby dismissed.
i) Conviction and sentence under Section 354 of Indian Penal Code
is hereby maintained.
g) The Criminal Appeal No.600 of 2013 filed by the accused no.10
Parvati Shamsunder Mavale is partly allowed.
i) Conviction and sentence for offence under Section 304(ii), 376,
376(23)(c) , 376(2)(g) r/w. 109 of Indian Penal Code is hereby set
aside.
ii) Conviction and sentence for offence punishable under Section
324 of Indian Penal Code and 23 of Juvenile Justice (Care and
Protection of Children) Act 2000 is maintained.
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iii) The substantive sentence of imprisonment shall run concurrently.
The period of detention undergone shall be set off under Section 428 of
Cr.P.C.
h) The Criminal Appeal No. 896 of 2014 filed by the State is
hereby dismissed.
(ANUJA PRABHUDESSAI, J.) (RANJIT MORE, J.)
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