Bombay High Court
Rahul Rafiq Mandal vs The State Of Maharashtra on 31 March, 2021
Bench: R.P. Mohite-Dere
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1071 OF 2017
Salim Noorhasan Shaikh
Age : 23 years,
Occ. Goldsmith worker
Residing at Reay Road,
Nariyal Wadi Kabrastan,
Mumbai 400 010. ...Appellant
(presently at Nasik Central Prison, Nasik) (Original Accused No.1)
Versus
The State of Maharashtra
(at the instance of Kalachowky Police Station,
vide CR No. 36/2015). ...Respondent
WITH
CRIMINAL APPEAL NO.1029 OF 2017
Rahul Rafiq Mandal
Age : 20 years,
Occ.: Goldsmith worker
Residing at Kings Circle,
Antop Hill Church,
Kamraj Nagar, Mumbai. ...Appellant
(presently lodged at Arthur Road Jail, Mumbai) (Original Accused No.2)
Versus
The State of Maharashtra
(At the instance of Kalachowky Police Station,
C.R no. 36/2015). ...Respondent
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Mr. Yogesh S. Palve a/w Mr. Machhindra Bodke for the Appellant in
Criminal Appeal No.1071 of 2017.
Mr. Santosh M. Deshpande, for the Appellant in Criminal Appeal No.1029
of 2017.
Mr. S. V. Gavand, A.P.P for the Respondent - State.
CORAM : REVATI MOHITE DERE, J.
RESERVED ON : 23rd FEBRUARY, 2021
PRONOUNCED ON : 31st MARCH, 2021
JUDGMENT :
1. Since both the aforesaid appeals arise out of the same
Judgment and Order dated 8th November 2017, they are being disposed of
by a common Judgment.
2. Vide Judgment and Order dated 8th November 2017, passed by
the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case
No.415 of 2015, the aforesaid two appellants alongwith another co-accused
- Panchu Ganesh Dhaki have been convicted and sentenced, as under:-
- The appellant - Salim Noorhasan Shaikh, for the offence punishable
under Section 376(2)(l) of the Indian Penal Code, to suffer rigorous
imprisonment for 10 years and to pay a fine of Rs.2,000/-, in default,
to suffer simple imprisonment for 1 month;
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- The appellants - Salim Noorhasan Shaikh and Rahul Rafiq Mandal
and co-accused - Panchu Ganesh Dhaki, for the offence punishable
under Sections 363 r/w 34 of the Indian Penal Code, to suffer
rigorous imprisonment for 3 years and to pay a fine of Rs.1,000/-
each, in default, to suffer simple imprisonment for 15 days;
- The appellants - Salim Noorhasan Shaikh and Rahul Rafiq Mandal
and co-accused - Panchu Ganesh Dhaki, for the offence punishable
under Sections 366 r/w 34 of the Indian Penal Code, to suffer
rigorous imprisonment for 4 years and to pay a fine of Rs.2,000/-
each, in default, to suffer simple imprisonment for 1 month;
The aforesaid sentences were directed to be run concurrently.
- The aforesaid appellants - Salim Noorhasan Shaikh and Rahul
Rafiq Mandal and co-accused - Panchu Ganesh Dhaki, were
however acquitted of the offence punishable under Section 376D of
the Indian Penal Code.
3. It is the prosecution case that the incident took place on 2 nd
February 2015 at about 11:00 p.m. within the jurisdiction of Kalachowky
Police Station. It is alleged by the prosecution, that the prosecutrix (PW 7) ,
an intellectually challenged girl, aged about 21 years, had gone to one
Dargah at Reay Road on 2nd February 2015 at about 3:30 p.m.; that at
around 10:30 p.m. she left the Dargah and was waiting at Reay Road
Railway Station for boarding the Andheri local train, when the appellant -
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Salim approached her, offered her tea and assured to leave her home.
Appellant - Salim is alleged to have been accompanied by his two friends,
appellant - Rahul and co-accused - Panchu Dhaki. It is alleged that on
reaching the Cotton Green Railway Station, the prosecutrix/complainant
(PW 7) and the 3 accused got down to have tea. It is alleged that the
accused took PW 7 near a parking area, at Cotton Green, where trucks were
parked. It is alleged that appellant - Salim asked PW 7 to board a truck,
after which he sexually assaulted her. Thereafter, the other 2 accused are
also alleged to have sexually assaulted PW 7. The police who were on
patrolling duty, saw the 3 accused and the prosecutrix (PW 7) standing
behind the truck, pursuant to which all the 3 accused and the prosecutrix
(PW 7) were taken to the police station for enquiry. The paternal aunt of the
prosecutrix (PW 7) was also called to the police station. The prosecutrix
(PW 7) is alleged to have disclosed that she was sexually assaulted by the
accused. The statement of the prosecutrix was recorded on 3 rd February
2015, pursuant to which, C.R. No.36 of 2015 was registered with the
Kalachowky Police Station, as against the accused alleging offences
punishable under Sections 363, 366, 376D, 506 r/w 34 of the Indian Penal
Code.
During the course of investigation, spot panchanama was
drawn; the prosecutrix was sent for medical examination; and the accused
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were arrested. The accused were sent for medical examination and their
clothes were also seized. After investigation, charge-sheet was filed as
against the appellants and co-accused - Panchu Dhaki in the Court of the
learned Metropolitan Magistrate, 15th Court at Mazgaon (Sewree), Mumbai.
The case being sessions triable, was committed to the Court of Sessions,
for trial.
Charges were framed as against the appellants and co-accused
- Panchu Dhaki, to which they pleaded not guilty and claimed to be tried.
The prosecution in support of its case, examined as many as 16
witnesses i.e. PW 1 - Ganesh Rajaram Deshmukh, police staff who was on
patrolling duty on the day of the incident; PW 2 - Shanta Keshav Raut,
panch to the clothes of the prosecutrix, which were seized under a
panchanama; PW 3 - Kiran Hari Ghanekar, panch to the Test Identification
Parade panchanama; PW 4 - Sandeep Yashwant Shetye, panch to the spot
panchanama and seizure of clothes of the accused; PW 5 - Prakash Ganpat
Bhosale, Nayab Tehsildar, who conducted the Test Identification Parade of
the accused; PW 6 - Anand Ashok Kale, watchman, who was present at the
godown/spot where the alleged incident took place (hostile); PW 7 - the
prosecutrix and the complainant; PW 8 - aunt of the complainant/
prosecutrix; PW 9 - Dr. Nishikant Manikrao Thorat. The said witness was
discharged (as he was not a relevant witness); PW 10 - Anita Nandkumar
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Menkar, Women Police Sub-Inspector, who was on patrolling duty on the
date of the alleged incident. PW 11 - Dr. Swapnil Vasudeo Bhopi, was
examined to show that the prosecutrix was intellectually challenged; PW 12
- Balkrishna Narayan Deshmukh, Police Inspector (Investigating Officer),
who conducted part investigation, in the said case; PW 13 - Hemant
Ramchandra Rade, Police Inspector and Investigating Officer; PW 14 - Dr.
Nikhil Subhash Jagtap who conducted the medical examination of the
prosecutrix and the accused; PW 15 - Dinesh Dagdu Rokde, Police Sub-
Inspector/SHO, who registered the FIR, and was part of the investigation;
and PW 16 - Anand Bharat Jaiswal, IT Engineer with respect to the CCTV
footage, collected at the railway station.
The defence of all the accused was that of denial and false
implication.
The learned Additional Sessions Judge, Greater Mumbai, after
hearing the parties and after considering the evidence on record, convicted
and sentenced the appellants and co-accused - Panchu Ganesh Dhaki, as
stated aforesaid in Para 2.
4. Learned Counsel for the appellant - Salim submitted that the
prosecution had failed to prove its case beyond reasonable doubt. He
submitted that the evidence of the complainant/prosecutrix, who was
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intellectually challenged, shows several discrepancies in her evidence and
that there is no corroboration to her evidence. He submitted that even the
DNA report cannot be accepted having regard to the evidence that has come
on record. He submitted that the clothes of the accused were sent belatedly
and as such the possibility of tampering with the said clothes cannot be
ruled out. He submitted that no question has been put to the accused, in
particular, accused - Salim, under Section 313 of Code of Criminal
Procedure, on the DNA Report, which was allegedly incriminating against
accused - Salim.
5. Learned Counsel for the appellant - Rahul assailed the
impugned judgment and order on several counts. He submitted that a false
case was foisted by the police on the accused. He submitted that a perusal
of the medical case papers of the accused shows that no blood stains/semen
stains were found on their clothes, when they were examined on 3 rd
February 2015, however, when the clothes were seized on 4 th February
2015, semen stains were found on the clothes, thus rendering the same
suspect. He submitted that even the medical case papers of the prosecutrix
do not support the case of the prosecution, that the prosecutrix was sexually
assaulted on 2nd February 2015. He submitted that the prosecutrix - PW 7
was sent immediately for medical examination, however, no fresh injuries
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nor any abrasion or bruises were found on her person, which is highly
improbable, if 3 persons are alleged to have sexually assaulted her, in a
truck. He submitted that the prosecution had not proved its case as against
the appellants, beyond reasonable doubt and as such the appellants be
acquitted.
6. It is pertinent to note that co-accused - Panchu Dhaki has not
filed any appeal, challenging his conviction and sentence.
7. Learned APP supported the impugned judgment and order of
conviction and sentence and submitted that no interference was warranted
in the same. He submitted that the appellants had taken advantage of an
intellectually challenged girl by taking her to a secluded spot and thereafter,
by sexually assaulting her. Learned APP submitted that the DNA report
shows that the appellant - Salim had sexually assaulted the prosecutrix -
PW 7.
8. Perused the papers with the assistance of the learned counsel
for the parties. PW 7 (prosecutrix), aged 21 years was intellectually
challenged. Although, learned counsel for the appellants questioned and
disputed the fact, that PW 7 - prosecutrix was intellectually challenged, a
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perusal of the evidence of the witnesses including the doctors and the
medical case papers clearly show that PW 7 - prosecutrix was intellectually
challenged.
9. The prosecutrix was examined as PW 7. As the learned APP
had submitted that the prosecutrix was intellectually challenged, certain
introductory questions were put to her by the Court. The learned trial Judge
after putting certain questions, noted that the prosecutrix could answer the
said questions i.e. her name, address, residence. The learned Judge
however noted that she was laughing while answering the said questions
without any reason and was looking down without paying much attention to
the questions. In her examination-in-chief, PW 7 - prosecutrix has stated
that the incident of sexual assault took place about 3 years prior. She has
stated that she had gone to one Dargah at Reay Road to offer Namaz as she
was not feeling well. She has stated that some black-magic was performed
on her and hence she had gone to the Dargah. She has stated that whilst
returning home at about 11:00 - 11:30 p.m., 3 boys chased her; that their
names were Rahul, Panchu and Salim; and that they were chasing her as
they wanted to rape her at Cotton Green near a railway station. She has
stated that the place was a lonely and dark place like a forest and that the
police had come and taken away those 3 boys. She has stated that she fell
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unconscious and did not know what had happened after she became
unconscious. When the Court put the question 'what happened to become
unconscious?', the learned Judge noted that the witness kept mum and was
reluctant to answer. PW 7 - prosecutrix then stated that she had made a
complaint as those 3 persons had followed her and committed rape on her
and that it was a place which looked like a tempo or a truck. The learned
Judge at this stage noted that the witness was laughing without any reason
and appeared to be disturbed. PW 7 has stated that she had made a
complaint against those persons. She has stated that she did not know them
earlier and that she would identify them if she saw them. She has identified
the said persons in the Court. She also identified her signature on the
complaint/FIR, which is marked at Exhibit - 43. When asked 'whether
police had taken her any where after lodging of the complaint?', she
answered after thinking over for some time and stated that 'I do not
remember'. The learned Judge noted that when PW 7 was asked 'whether
police had taken anything from her and whether she had produced anything
to the police?', the said witness was looking down, was not replying, was
only smiling and ultimately nodded in the negative.
10. In her cross-examination, PW 7 admitted that she was not
acquainted with the accused and therefore she did not know their names.
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She has also admitted that the police told her that she has to identify the
accused persons today before the Court and that she was deposing as per
the say of the police. She has denied the suggestion that she was deposing
false that she was sexually assaulted 3 years prior. The learned Judge noted
that the witness was murmuring to herself and was looking down
continuously without paying attention to the questions. The witness was
also given an understanding that she should pay attention to the questions.
PW 7 in her cross-examination has admitted that it was true that she used to
go to the Dargah for namaz, as her family was suspecting that she was
under the influence of black-magic. The learned Judge noted that the
witness was laughing loudly. PW 7 was also asked whether she understands
the meaning of oath, to which she replied that it was a crime, if one tells
false on oath. The learned Judge noted that the witness was laughing loudly
while answering the said question. PW 7 has further admitted that she
used to go to the Dargah many times and that she used to go alone. When
asked 'how much time it takes to reach the Dargah from her residence?',
the witness laughed and stated that it must be about 15 - 20 minutes
distance. Learned Judge noted that the witness is found murmuring to
herself. When a question was put in cross to PW 7, that whether the
complaint was written by her aunt, she replied in the affirmative.
When questioned whether she knew what was written in the
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complaint, she again answered in the affirmative. When questioned whether
her aunt had asked her to put her signature on the complaint, she again
replied in the affirmative. When questioned whether her aunt told her what
to say before the Court, as per the complaint, she replied in the affirmative.
The learned Judge noted that the witness was laughing and shutting her
mouth with her palm. Again when questioned whether she was mentally
and physically fit and was not deposing under any pressure, she answered
in the affirmative. The learned Judge has noted that while answering the
said question, the witness was laughing and looking down. Again when she
was asked whether she identified the accused before the Court as accused
were shown to her today outside the Court by police, she replied in the
affirmative.
11. As noted earlier, there is evidence on record as well as
documents to show that PW 7 - prosecutrix was intellectually challenged.
Her IQ was '48', according to the Clinical Psychologist, Psychiatry
Department, Nair Hospital. She had significant problems in concept
formation as well as visual attention. It appears from the certificate that
her intelligence was below average and she had an impaired test judgment.
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12. There can be no dispute that the evidence of an intellectually
challenged victim can be relied upon even without corroboration, however,
that would depend on the facts of each case, after considering the evidence
on record. In the facts, having considered the evidence of PW 7 as stated in
detail aforesaid and having regard to the demeanor noted by the learned
Judge, it would be prudent to look for corroboration to PW - 7's evidence
of alleged sexual assault by the appellants and co-accused - Panchu Dhaki.
13. It is the prosecution case that PW 7 - prosecutrix was found
with the appellants and co-accused - Panchu Dhaki near a truck. In this
regard, prosecution examined 2 witnesses i.e. PW 1 - Ganesh Deshmukh
and PW 10 - Anita Menkar. The evidence of PW 10 - Anita Menkar,
shows that she was attached to the Kalachowky Police Station at the
relevant time as a Probationary Officer. She has stated that on 2 nd February
2015, she was on night duty on Mobile - I of the said police station and that
lady PN - Malkar and Head Constable Deshmukh (PW 1) were also on duty
with her. She has stated that when they were on patrolling duty at night in
the Cotton Green area between 11:30 p.m. - 12.30 a.m. (midnight) on a
mobile van, she saw a girl and 3 boys standing behind a truck in the Cotton
Green godown area. She has stated that the girl was in a frightened
condition and on making enquiry with her, she was unable to answer
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properly. PW 10 - Anita Menkar has stated that considering the situation,
they brought the girl and 3 boys to the police station. The girl was made to
sit in the ladies room and the boys were made to sit separately. She has
stated that on enquiring with the girl, the girl stated about some incident
like molestation but as she was not speaking frankly, they called her
paternal aunt (PW 8). She has stated that they asked her aunt PW 8 to
come to the police station and that when PW 8 came to the police station,
they made enquiry with the girl in front of her aunt, pursuant to which, the
girl narrated the incident which took place in the truck. She has stated that
she recorded the girl's statement in the presence of her aunt, which was
treated as an FIR (Exhibit - 43).
14. PW 10 - Anita Menkar, in her cross-examination has admitted
that the clothes of PW 7 - prosecutrix were seized on 3 rd February 2015
during the day. She has admitted that on making enquiry with the girl for
about 5 minutes at the spot, they suspected that some incident of
molestation may have taken place with her; and hence she was brought to
the police station. She has admitted that the aunt of PW 7 had come to the
police station at about 3:00 - 3:30 a.m and that they were making enquiry
with the girl (PW 7) for about 1 ½ hour, thereafter.
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15. PW 1 - Ganesh Deshmukh who was also present along with
PW 10 - Anita Menkar, has stated that he was on duty at the Kalachowky
Police Station on 2nd February 2015. He has stated that at about 11:30 -
11:45 p.m. when they reached the Cotton Green area, they found some
persons standing behind the truck; that the said persons told them that they
were watchman and members of the truck union ; that they saw that there
were 3 boys and a girl with them; that on enquiring with the 3 boys
(appellants and co-accused - Panchu) they avoided giving any reply; that
they gave evasive replies when asked about the girl with them; and that as
they suspected something serious, they brought the boys and the girl to the
police station in a Mobile - I van.
16. In his cross-examination, PW 1 - Ganesh Deshmukh admitted
that neither the boys nor the girl stated in his presence about any offence
having taken place. He has also admitted that neither any police complaint
was made against the said boys by them nor any complaint was received
by him or his colleagues from the girl. The said witness has also admitted
that till the boys were taken to the police station, he was not knowing why
they were present at the spot nor did he know anything about the girl
except her name. PW 1 - Ganesh Deshmukh has admitted that there was
no conversation between the girl and the lady police constable till he left
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the spot again for patrolling.
17. A perusal of the aforesaid evidence of PW 10 - Anita Menkar
and PW 1 - Ganesh Deshmukh shows that whilst patrolling on night duty,
they saw the prosecutrix (PW 7) and the appellants and co-accused -
Panchu Dhaki, behind a truck. It appears that as the girl could not answer
properly and her presence with 3 boys at 11:30 p.m., being suspicious, all
of them were brought to the police station. The evidence of PW 1 - Ganesh
Deshmukh shows that since no satisfactory answers were given by the boys
with respect to the girl's presence with them, they were all taken to the
police station. The evidence of PW 10 - Anita Menkar also shows that the
girl and the boys were seen standing behind a truck and since the girl was
unable to answer properly and appeared to be frightened, she (PW 7) and
the 3 boys (accused) were brought to the police station. PW 10's evidence
shows that on enquiry, the girl disclosed about molestation, but was not
speaking frankly, hence her aunt (PW 8) was called.
18. PW 8, prosecutrix's aunt, has stated that PW 7 - prosecutrix
was suffering from mental illness and that she was taking medical treatment
at Nair Hospital. She has stated that PW 7 - prosecutrix left home at 3:30
p.m. to go to a Dargah at Reay Road. She has stated that she (PW 7) would
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return back at the most till 9:30 p.m., however, on that day, she did not
return till 2:00 a.m. She has stated that sometimes PW 7 - prosecutrix used
to stay at the Dargah only. She has stated that in the night she received a
call from one Rokde (PW 15) of Kalachowky Police Station, who
informed her about her niece (PW 7). She has stated that when she reached
the police station, PW 10 - Menkar and PW 15 - Rokde were present in
the police station. She has stated that PW 7 was weeping and that the police
had arrested 3 accused. She has stated that PW 7 disclosed to her that when
she was returning home from the Dargah, 3 accused had taken her at a
parking spot where the trucks were parked and that the said accused
sexually assaulted her and also threatened her. The said witness has not
identified the accused, as she did not know the accused.
19. The said witness has denied the suggestion that she was forced
by the police to make a statement and to give a false complaint of rape
against the accused, if she wanted to take her niece (PW 7 - prosecutrix)
home; that she was deposing falsely at the instance of PW 15 - PSI Rokde;
and, that PW 7 - prosecutrix had not disclosed the incident to her. An
omission was brought on record with respect to the fact that she had not
stated in the police statement that PW 7 - prosecutrix was crying in the
police station.
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20. The evidence of the aforesaid witness i.e. PW 8 shows that she
had no personal knowledge of the incident of sexual assault and has stated
what was allegedly disclosed by PW 7 - prosecutrix to her. PW 8 had
categorically stated that her niece (PW 7 - prosecutrix) was intellectually
challenged and was taking treatment at Nair Hospital. The evidence of PW
11 - Dr. Swapnil Vasudeo Bhopi, doctor attached to J.J. Hospital shows that
he was attached to the said hospital as clinical psychologist, at the relevant
time. He has stated that PW 7 was brought to their hospital on 20 th February
2015 and that his colleague, Richi Patil, a clinical psychologist had
examined her and opined about mild mental retardation of the patient. The
said witness being acquainted with Dr. Richi's signature and handwriting
produced the OPD Case papers (Exhibit - 49). The opinion of Dr. Richi
shows that the patient's IQ level was '55' thereby showing that she was
suffering from mild mental retardation. He has stated that considering such
IQ, the mental age of the patient was about 8 - 9 years and that the mental
retardation was by birth.
21. The said witness was cross-examined to show that he had no
personal knowledge about the examination conducted by Dr. Richi, which
fact was admitted by PW 11 - Dr. Swapnil in his cross-examination.
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22. As noted above, the evidence on record, both oral and
documentary as well as the tenor of PW 7 - prosecutrix recorded by the trial
Court, whilst recording her evidence clearly shows that PW 7 - prosecutrix
was intellectually challenged and as such the submission of the learned
counsel for the appellants that she was normal with no intellectual disability
needs to be rejected outright. PW 7 was found behind the truck with the
accused as stated aforesaid. Admittedly, PW 7 was not known to the
accused. The question that arises for consideration having regard to the
aforesaid evidence that has come on record is, whether in the facts, it
would be safe to convict the accused on the sole testimony of the
prosecutrix (PW 7) in the absence of any corroboration. The fact, that the
accused were found with the prosecutrix is proved by the prosecution i.e.
by PW 1 - Ganesh Deshmukh and PW 10 - Anita Menkar, however, the
question is, whether PW 7 was sexually assaulted by the appellants ?
23. In this regard, the prosecution has examined PW 14 - Dr.
Nikhil Subhash Jagtap. PW 14 - Dr. Nikhil Jagtap has stated that he was
attached to J.J. Hospital as a Resident Doctor at the relevant time. He has
stated that on 3rd February 2015, Kalachowky police station referred PW 7
for medical examination and that the girl was about 18 years of age. He has
stated that he along with Dr. Suvarna Mane and Dr. Pritam Singh examined
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the patient. He has stated that the patient was referred with history of sexual
assault. During her medical examination, the doctor found that there was an
injury to her hymen; that there were hymenal tears at 3, 6, 9 and 12 o'clock
position. The doctor also noted that there was no evidence of fresh injuries
on the body. The medical examination of PW 7 - prosecutrix was
conducted on 3rd February 2015 at about 2:30 p.m., within 16 hours of the
incident. The samples of vaginal and cervical swab, urethral swab, blood
were also collected and referred to the FSL. PW 14 - Dr. Jagtap has stated
that overall finding after the examination was consistent with sexual
intercourse/assault, however the final opinion was reserved. He has
identified the medical examination report of the patient signed by all the 3
doctors. The same is at Exhibit - 58. After FSL report was received, PW 14
- Dr. Jagtap opined that the findings were consistent of sexual assault on
the victim.
24. PW 14 - Dr. Jagtap also examined the 3 accused referred by
the police station on the very same day. He has stated that he did not find
any injuries on their body. The blood samples as well as other samples of
the accused were taken for FSL. The medical examination reports of all the
3 accused were shown to the said witness, who admitted his signatures on
the same. Accordingly, the said reports were exhibited as Exhibits - 59, 60
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and 61 respectively. The final opinion given in the examination-in-chief,
after seeing the CA report dated 29 th October 2015 was exhibited as Exhibit
- 62.
25. In the cross-examination, the said witness i.e PW 14 - Dr.
Jagtap was asked whether Exhibit - 62, was only 'whether the blood and
semen matched or not?' to which the witness replied 'it is true that report is
about it'. PW 14 - Dr. Jagtap was again cross-examined by putting the
following question that Exhibit - 62 does not refer to his opinion of
'overall finding consistent with sexual intercourse/assault' to which he
replied 'it is true that such reference is not there in the report'. The said
witness has denied the suggestion that he was falsely deposing and that he
has not examined the victim. The said witness has admitted that they
proceeded with the examination of the victim after seeing the memo
received from the concerned police station and after reading the brief
history of the incident mentioned in the said memo. The said witness has in
his cross-examination, stated that it was true, that the facts revealed in the
history given by the victim were similar to the facts, mentioned in the
memo. The said witness has admitted in his cross-examination that he
could not say from the finding that the hymen injury was healed or that the
victim was accustomed to sexual intercourse. PW 14 - Dr. Jagtap had
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admitted that the finding that no evidence of fresh injures mentioned in the
column no. V of Exhibit - 58 is written on the basis of questions to the
victim as well as the physical examination conducted by them at the
relevant time.
26. A perusal of the Exhibit - 58 shows that the Doctor on
examination of the victim's clothes, found that the clothes were the same,
but there was no evidence of tear or stains. As far as the injuries mentioned
in the body column is concerned, it is stated that 'no evidence of fresh
injuries were seen.' As far as Local Examination of Genitals, Anus and
Oral cavity is concerned, Labia Majora, Labia Minora, Clitoris, Fourchette
and Introitus/vagina were found to be normal. The injury to the hymen was
found to be present, however edges were healed and bleeding was absent
and the position of tears was stated to be 3, 6, 9 and 12 o'clock. No perineal
tear was seen, urethra was normal. As far as Provisional Opinion was
concerned, in column of evidence of injuries to the genitals/anus, it was
stated that 'no evidence of fresh injuries'. As far as evidence relating to
non-penetrative assault, it was stated that 'no evidence of fresh injuries'.
As far as injuries suggestive of application of force/restraint, 'no evidence
was seen'.
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27. The evidence on record shows that the prosecutrix was
examined within 16 hours of being found by the police and what was
disclosed in the said examination, is stated hereinabove. As noted earlier
when PW 1 - Ganesh Deshmukh and PW 10 - Anita Menkar were on
patrolling duty, the victim was seen in the company of 3 accused. If the
incident of rape by the accused had taken place in the truck as alleged,
injuries would certainly have been found on the prosecutrix's person. In all
probability, the accused would have also fled from the spot and not seen
standing with her, when the police reached the spot or would have offered
some resistance when taken to the police station. This is not the case.
28. A perusal of the medical certificates of the appellants shows
that on examination of their clothes, no tears nor any stains or other foreign
materials seen. No injuries were also seen on their body. Admittedly, the
accused were sent for medical examination on 3rd February 2015 itself at
about 3:00 p.m. when the aforesaid observations were made.
29. Learned Counsel for the appellants submitted that having
regard to the aforesaid, when no stains or other foreign materials were seen
on the appellants clothes on 3rd February 2015, how semen stains were
found on the clothes of the appellant - Salim on the next day i.e. on 4 th
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February 2015, when his clothes were seized under a panchanama,
alongwith the clothes of other accused. He submits that the prosecution
evidence in this regard is not free from blemish and suspicion and that the
possibility of planting of the same on 4 th February 2015, cannot be ruled
out. There is no plausible answer as to why, when no stains or other
foreign materials were seen on the clothes of the appellants and co-accused
- Panchu Dhaki on 3rd February 2015, how semen stains were found on
appellant - Salim's underwear on the next day i.e. on 4th February 2015,
when his clothes were seized, under a panchanama. He submits that even
PW 4 - Sandeep Shetye, panch to the seizure of clothes, has not deposed
with respect to stains being seen on Salim's underwear.
30. Learned Counsel for the appellant - Salim submitted that only
the appellant - Salim has been convicted under Section 376(2)(l) of Indian
Penal Code because of the DNA report, which revealed that 'DNA profile
of blood detected on ex2 salwar of victim Gulshan A. Shaikh, one of the
mixed DNA profile obtained from semen stain detected on ex6 underwear
of accused Salim Noor Hasan Shaikh in F.S.L.M.L. Case No.DNA-184/15
and ex10 blood sample of Gulshan A. Shaikh are identical and from one
and same source of female origin'. He submitted that although the clothes
of the appellant - Salim, i.e. underwear, pant and shirt, were seized,
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only Salim's pant (Article - 'F/1') and Shirt (Article - 'F') were produced
by the prosecution through PW 4 - Sandeep Shetye. He submitted that the
incriminating underwear of the appellant - Salim on which allegedly semen
stains were found was not produced by the prosecution. Learned APP also
does not dispute the said fact.
31. In the light of what is stated aforesaid, it would be difficult to
place implicit reliance on the DNA report. Infact, no question has been put
to the accused - Salim under Section 313 of Code of Criminal Procedure,
with respect to the DNA report, an incriminating circumstance as against
the appellant - Salim. It is well settled principle of law that the
circumstances which according to the prosecution lead to proof of the guilt
against the accused must be put to him, on his examination under Section
313 of Cr.PC. (Reference: Vikramjit Singh @ Vicky vs State of Punjab1,)
32. Thus, the evidence on record at the highest shows that the
appellants were seen with the prosecutrix near Cotton Green, behind a
truck, by the police, in a suspicious manner. No evidence has come on
record, as to how PW 7 reached the said spot, whether accidentally or
whether she was enticed by the appellants .
1 (2006) 12 SCC 306
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33. The Apex Court in the case of Sadashiv Ramrao Hadbe vs
State of Maharashtra and Anr.2 observed as under:-
"9. It is true that in a rape case the accused could be convicted on the
sole testimony of the prosecutrix, if it is capable of inspiring
confidence in the mind of the court. If the version given by the
prosecutrix is unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and belie the case
set up by the prosecutrix, the court shall not act on the solitary
evidence of the prosecutrix. The courts shall be extremely careful in
accepting the sole testimony of the prosecutrix when the entire case
is improbable and unlikely to happen."
34. In the facts of the present case, having regard to the evidence
as has come on record and as stated aforesaid, it would be unsafe to convict
the appellants for the offences which they are tried and as such the
appellants deserve to be acquitted of the charges levelled against them,
since the prosecution has not proved its case beyond reasonable doubt.
35. The Appeals are accordingly allowed and the Judgment and
Order dated 8th November 2017, passed by the learned Additional Sessions
Judge, Greater Mumbai, in Sessions Case No.415 of 2015, convicting and
sentencing the Appellants as set out in para 2, is hereby quashed and set
aside and they are acquitted of all the offences. The Appellants if in jail,
they be released forthwith, if not required in any other case. Fine, if paid,
by them, to be refunded to them. Bail bonds, if any, stand cancelled.
2(2006) 10 SCC 92
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36. It may be noted, that co-accused - Panchu Dhaki has not filed
any appeal challenging his conviction and sentence. Co-accused - Panchu
Dhaki's role is identical to that of appellant - Rahul. Having regard to the
same and the judgments of the Apex Court in Raja Ram and Others v/s
State of M.P.3; Dandu Lakshmi Reddy v/s State of A.P. 4, and Sahadevan
and Another v/s State of Tamil Nadu, 5 co-accused - Panchu Dhaki is
also entitled to the benefit of this judgment. Accordingly, the benefit of this
decision is also extended to co-accused - Panchu Dhaki. Accordingly, co-
accused - Panchu Dhaki also stands acquitted of the offences for which
he is convicted. Co-accused - Panchu Dhaki, if in jail, be released
forthwith, if not required in any other case. Fine, if paid, be refunded to
him.
REVATI MOHITE DERE, J.
3 (1994) 2 SCC 568
4 (1999) 7 SCC 69
5 (2012) 6 SCC 403
