Bombay High Court
Sampa Vishwas Roy vs The State Of Maharashtra And Anr on 22 December, 2022
Bench: S. V. Kotwal
1 of 35 218-apeal-183-21 & 664-22 (Judgment)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 183 OF 2021
Sampa Vishwas Roy ..Appellant.
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
CRIMINAL APPEAL NO. 664 OF 2022
Mangal Tapon Ray ..Appellant.
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 4039 OF 2022
IN
CRIMINAL APPEAL NO. 664 OF 2022
__________
Ms. Anjali Patil, for Appellant in Appeal/183/2021.
Ms. Janhavee Joshi a/w. Vishal Kanade (appointed as Amicus
Curiae) in Appeal No.664 of 2022.
Ms. Saili N. Dhuru (appointed Advocate) for Respondent No.2.
Mr. S. R. Agarkar, APP for State/Respondent No.1.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 22nd DECEMBER 2022
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2022.12.23
17:05:34
+0530 Gokhale/Deshmane (PS)
2 of 35 218-apeal-183-21 & 664-22 (Judgment)
JUDGMENT :
1. Both these Appeals are decided by this common
Judgment because they arise out of the same impugned Judgment.
For the sake of convenience, the Appellants are referred to by their
original status in the trial. The Appellant Sampa Vishwas Roy in
Criminal Appeal No.183 of 2021 was the original accused No.1
and the Appellant Mangal Tapon Ray in Criminal Appeal No.664 of
2022 was the accused No.2 in POCSO Special Case No.425 of 2015
before learned Special Judge under POCSO Act, Greater Mumbai.
Vide his Judgment and order dated 24/12/2020, learned trial
Judge convicted and sentenced the Appellants as under:
i) The Appellant Sampa Roy-accused No.1 was
convicted for commission of offence punishable
U/s.5 of the Immoral Traffic (Prevention) Act,
1956 (for short 'ITPA') and was sentenced to
suffer R.I. for 5 years.
ii) She was convicted for commission of offence
punishable under section 370(2) of the I.P.C. and
was sentenced to suffer R.I. for 7 years and to pay
a fine of Rs.10000/- and in default of payment of
fine to suffer S.I. for three months.
3 of 35 218-apeal-183-21 & 664-22 (Judgment)
iii)She was also convicted for commission of offence
punishable U/s.370-A(2) of the I.P.C. and was
sentenced to suffer R.I. for 5 years and to pay a
fine of Rs.5000/- and in default of payment of
fine to suffer S.I. for three months.
iv) She was further convicted for commission of
offence punishable under section 109 r/w. 376 of
the I.P.C. and was sentenced to suffer R.I. for 12
years and to pay a fine of Rs.10000/- and in
default of payment of fine to suffer S.I. for three
months.
v) The Appellant Sampa Roy was acquitted from the
Charges of commission of offences punishable
under sections 370-A and 370(4) of the I.P.C. and
under sections 4 and 6 of the Protection of
Children from Sexual Offences Act (for short
'POCSO Act') read with Section 4 of ITPA.
vi) All the sentences were directed to run
concurrently. She was given set off for the period
of detention in jail.
vii) The Appellant Mangal Ray-accused No.2 was
convicted for commission of offence punishable
U/s.5 of the Immoral Traffic (Prevention) Act,
1956 (for short 'ITPA') and was sentenced to suffer
4 of 35 218-apeal-183-21 & 664-22 (Judgment)
R.I. for 5 years.
viii) He was convicted for commission of offence
punishable U/s.370-A(2) of the I.P.C. and was
sentenced to suffer R.I. for 5 years and to pay a
fine of Rs.5000/- and in default of payment of
fine to suffer S.I. for three months.
ix)He was further convicted for commission of
offence punishable under section 376 of the I.P.C.
and was sentenced to suffer R.I. for 12 years and
to pay a fine of Rs.10000/- and in default of
payment of fine to suffer S.I. for three months.
x) The Appellant Mangal Ray was acquitted from the
charges of commission of offences punishable
under sections 370(2), 370-A and 370(4) of the
I.P.C. and under sections 4 and 6 of POCSO Act
r/w. Section 4 of ITPA.
xi)All the sentences were directed to run
concurrently. He was given set off for the period
of detention in jail.
2. Heard Ms. Anjali Patil, learned counsel for the appellant
in Criminal Appeal No.183 of 2021, Ms. Janhavee Joshi, learned
counsel a/w. Shri. Vishal Kanade, appointed as Amicus Curiae in
5 of 35 218-apeal-183-21 & 664-22 (Judgment)
Criminal Appeal No.664 of 2022, Ms. Saili Dhuru, learned
appointed advocate for the Respondent No.2 in Criminal Appeal
No.183 of 2021 and Shri. Agarkar, learned APP for the State.
3. The prosecution case is that the victim in this case was in
a poor financial condition. She was residing with her mother, sister
and brother. The Accused No.1 brought her to Mumbai in May
2015 on the pretext of giving her a good job in some hotel at a
good salary. When she came to Mumbai, she was exploited
sexually on the first night itself. The accused No.2, who according
to the prosecution case, was the husband of the accused No.1
committed rape on her. Subsequently, the victim was subjected to
sexual assault by different persons. It is the prosecution case that
the accused No.1 had forced her into prostitution. Ultimately, on
21/06/2015 she somehow escaped from her detention. She met a
resident of the building and with his help contacted the Child Help
Line number. She was rescued by a social worker. She was taken to
MIDC police station and on her grievance, the offence was
registered vide C.R.No.360 of 2015 at M.I.D.C. police station. Both
the Appellants/accused were arrested on 22/06/2015. The
6 of 35 218-apeal-183-21 & 664-22 (Judgment)
investigation was carried out and the statements of various
witnesses were recorded. The victim was sent for medical
examination. Her statement U/s.164 of the Cr.p.c. was recorded.
Different panchanamas were drawn and at the conclusion of the
investigation the charge-sheet was filed. The case was committed
to the Special Court.
4. During trial, the prosecution examined 12 witnesses
including the victim, the panchas, the neighbour who rescued her,
the social worker who took her to the police station, the medical
officer and the investigating officer.
5. The defence of the accused No.1 was of total denial.
According to her, she had never seen the victim earlier. She had
seen the victim for the first time in the court. According to the
accused No.1, she was unable to tell why the victim was deposing
against her. She stated in her statement recorded U/s.313 of the
Cr.p.c., that her husband's name was Vishwas Roy. She did not
know the accused No.2 and she had seen the accused No.2 only at
the police station.
7 of 35 218-apeal-183-21 & 664-22 (Judgment)
6. The defence of the accused No.2 was also of total denial.
According to him, the name of the husband of accused No.1 was
Mangal Roy, whereas, his own name was Mangal Ray. According to
him, therefore, he was arrested because of a misunderstanding. He
was not the husband of accused No.1.
7. Learned Trial Judge considered this evidence and the
defence. He heard both the sides and reached at the conclusion
that the prosecution did not prove that the victim was below 18
years of age. He, therefore, acquitted both the accused from some
of the Charges as mentioned earlier. However, he believed that the
victim and the prosecution's evidence to conclude that the offences
for which ultimately both of them were convicted were proved by
the prosecution beyond reasonable doubt.
8. The main evidence in this case is that of the victim
herself. She is examined as PW-5. She has mentioned her birth
date as 05/08/1999. She had two elder married sisters, one
younger sister and one younger brother. She had studied up to 8 th
standard in a school at Delhi. Her father was a rickshaw driver, but
8 of 35 218-apeal-183-21 & 664-22 (Judgment)
he died when PW-5 was still young. She was a bright student, but
her mother who was the only earning member of the family could
not afford her further education. Therefore, the victim had to leave
her school. She started working with her mother as a maid servant
in different houses. But she could not continue with her job,
because she was a minor. At that time, her brother was only 6
months old. One lady who was their neighbour offered them help.
The victim's family trusted her. The victim used to call her as Buva
(aunt). PW-5 requested that lady to find work for her. She told PW-
5's mother that her niece was in Mumbai and she was having a
business of hotel and that she could get a job for PW-5 as a
waitress. She told PW-5's mother that PW-5 could continue with
her studies in Mumbai. According to her, PW-5 could earn good
salary upto Rs.30000/-p.m. Believing that neighbour, the victim
decided to go to Mumbai.
9. On 23/05/2015, the accused No.1 came to Delhi to take
her to Mumbai. That neighbour met the accused No.1 on the
railway station and asked her to take PW-5 with her. They came to
Mumbai. They went to accused No.1's flat in a building at Andheri.
9 of 35 218-apeal-183-21 & 664-22 (Judgment)
The room was on the 7th floor. They reached in the evening.
According to her, in the midnight, both the accused whom she
descried as Sampa Roy and her husband Mangal Roy came to the
place where she was sleeping. There were two rooms in the flat
and there was a passage where PW-5 was sleeping. It is her case
that the accused No.1 forced her to have physical relations with
the accused No.2. PW-5 refused and told the accused No.1 that she
was expecting to get some work. At that time, the accused No.1
told her that she was entertaining unreal expectations and that she
had spent money for PW-5 and that she had to recover her money
from PW-5. Till then, she was not willing to send back PW-5. She
then descried as to how both the accused took her in one of the
rooms. The accused No.1 helped the accused No.2. It is her case
that, in spite of her resistance and shouts, accused No.2 committed
rape on her. The accused No.1 had held her legs. The windows and
the doors were shut and, therefore, her shouts could not reach
outside that room.
10. From the next day onwards, the accused No.1 started
sending different customers to PW-5 in that very house. PW-5 used
10 of 35 218-apeal-183-21 & 664-22 (Judgment)
to resist with screams and cries, but even then the customers used
to force themselves by saying that they had already paid money for
her services. The accused No.1 used to beat her. Because of her
continuous resistance, the accused No.1 got fed up and sent PW-5
to Hyderabad. PW-5 has further described that the situation was
worse there and she was exploited by at least 15 to 16 people
everyday. She was not given food to eat. She was kept in a locked
room. Because of her continuous resistance there, the accused
No.1 was contacted from the Hyderabad. PW-5 was sent back to
Mumbai. The accused No.1 picked her up at the station and took
her back to the same house. On the way, PW-5 was slapped and
abused. On one occasion, the accused No.2 again wanted to have
physical relations with her but PW-5 refused. Therefore, she was
punished. She was made to sleep in a cold room without clothes.
On 20/06/2015, PW-5 heard that the accused wanted to sell her.
11. On 21/06/2015, PW-5 took an opportunity to escape
from the flat. She ran downstairs. She saw one elderly man. She
sought his help. He, in turn, made a telephone call to a Child
Helpline number. One person came there and took her to MIDC
11 of 35 218-apeal-183-21 & 664-22 (Judgment)
police station. Her statement was recorded. She was taken back to
the same house, but that house was found to be locked. She was
then sent for medical examination. She informed the police about
the accused's other home in Powai. With great efforts, the police
could find the accused No.1 in the said building. PW-5 was sent to
a shelter home and then on 27/01/2016, she was taken to Delhi
and kept in a shelter home there. In April 2016, she was reunited
with her family. The F.I.R. given by her is produced on record at
Exhibit 32. Her Aadhar card was left with the accused No.1. She
identified both the accused in the Court. According to PW-5, her
statement was recorded in the court U/s.164 of the Cr.p.c. She did
not produce her birth certificate, but she gave a copy of her school
leaving certificate. The F.I.R. lodged by the victim vide C.R.No.360
of 2015 mentions about her background and also describes as to
how she came to Mumbai. The F.I.R. also mentions about the
incident of rape committed by the accused No.2 with the help of
accused No.1 on 25/05/2015. However, there is no reference in
the F.I.R. to the fact that she was taken to Hyderabad and the
instances that took place in Hyderabad.
12 of 35 218-apeal-183-21 & 664-22 (Judgment)
In the cross-examination, she accepted that her
financial condition was poor and there was no earning member
except her mother and herself. She did not ask her neighbour the
name of the hotel where she was supposed to work. On the day
when she had gone to the house of the accused No.1 with the
police, the house was found to be locked and police did not break
open the lock. After two days again, she along with police went to
the same house. At that time, the police broke the lock. One
cupboard was found to be locked, but the police did not break
open that cupboard. According to PW-5, her Aadhar card was kept
in that cupboard. She admitted that, whenever anybody entered
the building, the watchman made inquiries and made entries in
the register. She could not give details about her visit to
Hyderabad regarding the train or railway station etc. She could
not explain as to why her F.I.R. did not mention all the other facts
including her travel to Hyderabad; except what she had referred to
in her F.I.R. about the instances in Mumbai. In her further cross-
examination, she admitted that, she had stated in her statement
recorded U/s.164 of the Cr.p.c. that, Riya's husband had
13 of 35 218-apeal-183-21 & 664-22 (Judgment)
committed rape on her. She voluntarily added that accused No.1
Sampa was also known as Riya. She also admitted that, before the
Magistrate she had stated that Accused No.1's daughter's name
was Riya. She admitted that, Riya was not married.
12. PW-1 Mumtajali Majid was a house agent and PW-2 Raju
Chalmalla was the landlord of the house of the accused No.1. PW-1
has deposed about the leave and license agreement dated
05/11/2014, but it was not signed by the accused No.1. It was
signed by her father. PW-1 deposed that the accused No.1, her
husband and their daughter were residing in that room.
13. PW-7 Bablu Singh was another Estate Agent. He had not
helped the accused No.1 in getting that room. However, he has
deposed that the accused No.1 was residing with her husband
Mangal, her daughter and one maid servant. He identified the
accused No.2 in the court.
14. PW-6 Abdul Shaikh was a pancha for arrest of the
accused No.2 and seizure of his clothes. That panchanama was
carried out between 9:45p.m. to 10:00p.m. on 22/06/2015. It is
14 of 35 218-apeal-183-21 & 664-22 (Judgment)
produced on record at Exhibit 38.
15. PW-8 Labbu Patel was a pancha for spot panchanama
carried out on 22/06/2015 between 6:00p.m. to 6:45p.m. At that
time, a bed-sheet was seized. The spot panchanama is produced on
record at Exhibit 44. The seizure of victim's clothes panchanama
was produced on record at Exhibit 45.
16. PW-10 Ranjan Saha is an important witness. He has
deposed that, he was residing in the same building and on the
same floor as that of accused No.1. On 21/06/2015, at about
4:00p.m. he was going out with his friend to have tea. They had
reached at the gate of the building, when suddenly a small girl
came. She was crying. She sought their help. She told him about
the entire incident and as to how she was sexually exploited.
According to him, that girl was a child, therefore, he called the
Child Helpline number 1098. The receiver of the call told them to
wait there for some time. After quite some time, PW-3 Shantilal
Rikibe came there from the Child Protection Cell. PW-5 repeated
her story to him. Then, all of them went to MIDC police station.
15 of 35 218-apeal-183-21 & 664-22 (Judgment)
This witness had seen the accused No.1 in that building. He
identified the accused No.2. There was no challenge to the identity
of the accused No.1.
In the cross-examination, there were some
inconsequential contradictions from his police statement which
were brought on record.
17. PW-3 Shantilal Rikibe was working as Night Counselor
with one social organization named as Navnirman Samaj Vikas
Kendra at Malvani Malad (West). Their organization was affiliated
to a child helpline. That child helpline in turn was having a call
center. The Toll Free number was 1098. This witness received
some information from the call center at 6:30p.m. on 21/06/2015
that PW-10 had called the Child Helpline and had sought help.
Pursuant to the information, this witness met PW-10 and the
victim. She told her story to this witness. Then, they went to
Meghwadi police station. They were sent to MIDC police station,
where the victim's F.I.R. was registered.
In the cross-examination, he deposed that, their
16 of 35 218-apeal-183-21 & 664-22 (Judgment)
organization was registered, but he did not remember the
registration number. Their institute did not have an independent
call center. He admitted that the details of the call are recorded.
He did not know PW-10 before the incident. His duty hours in the
night were from 10:00p.m. to 9:00a.m. The day counselors worked
from 9:00a.m. to 6:00p.m. and the afternoon counselors worked
from 2:00p.m. to 10:00p.m.
18. PW-4 Dr. Ankita Somani had medically examined PW-5
on 22/06/2015. She has given history of the incident regarding
multiple episodes of sexual exploitation. On examination, this
witness found old scar mark around 5mm in size lateral to the
right eye. There was a 4cm. long old scar on left para spinal area.
There were two parallel linear reddish marks on her left thigh of
the size 4 to 5cm. Her hymen was not intact. There was no
evidence of any tear, bleeding or injuries. However, the cervix
showed circumcised erosion and oral torsion; meaning that there
was some injury on the cervix. The medical opinion was that, there
was sexual and physical violence. She had issued the medical
report as per examination. It was produced on record at Exhibit 30
17 of 35 218-apeal-183-21 & 664-22 (Judgment)
(Colly). All the samples and swabs drawn by her were given to the
police for sending them to FSL for chemical analysis. According to
this witness, scars on the victim could be possible due to physical
assault. As the victim had taken bath, her swab reports could not
be conclusive.
In the cross-examination, she deposed that there were
many possible reasons for hymen tear. If the victim was subjected
to multiple sexual intercourse, then there could be hymen tears
and their position could be determined. In this case, there was no
mention of hymen tear but she added that the hymen was not
intact. She could not specify the age of the old scars. She has
accepted that he has not given his final opinion but has only given
a provisional opinion.
19. PW-12 Dr. Kalel had conducted the tests to determine the
age of the victim. He conducted various examinations including
radiological examination and came to the conclusion that the
victim's age was between 17 to 18 years. The report is produced
on record at Exhibit-68. He accepted that as per Modi's
18 of 35 218-apeal-183-21 & 664-22 (Judgment)
Jurisprudence, the medical report has a margin of two years on
either side.
20. PW-9 PSI Ayare was the first investigating officer. He was
attached to MIDC police station. At about 10.30 p.m. on
21.6.2015, PW-5 and PW-3 came to his police station and gave the
information about the offence. He recorded the FIR. He had
prepared the spot panchnama after visiting the spot of incident. On
22.6.2015, he arrested both the accused from their residential
house at Chandivali. The accused No.2 was residing in the house
of his relative at Chandivali from where both of them were
arrested. He recorded the statements of various witnesses.
In the cross-examination, the omissions from the statements
which he had recorded and in particular from the FIR which he
had recorded were brought on record.
21. PW-11 API Modiraj was the next investigating officer. He
had recorded the statements of five witnesses including that of PW-
10 Ranjan Saha. He had collected various reports and had filed
the charge-sheet. He had proved the omissions from the police
19 of 35 218-apeal-183-21 & 664-22 (Judgment)
statements of witnesses viz. PW-3 Shantilal and PW-10 Saha. He
admitted that he had not collected the CDR. He had not collected
any documents to show that PW-3 Shantilal was working with that
particular organization. He had also proved the omissions from the
police statement of PW-10 Ranjan Saha. He admitted that he had
not carried out any investigation in respect of the neighbour of the
victim in Delhi who had caused the victim to come to Mumbai.
The CCTV footage from Delhi railway station was not obtained by
him. He did not record the statement of the mother of the victim.
. This, in short, was the evidence led by the prosecution.
22. Learned counsel for the appellant-accused No.2 made
the following submissions :
i. The prosecution case is not proved beyond reasonable doubt.
The role of PW-3 Shantilal in taking the victim to the police
station is extremely doubtful. As per his evidence, he could
not be on duty when the Child Helpline Call Center had
contacted him. His duty ended in the morning itself.
ii. The victim's own evidence was not reliable. It is full of
20 of 35 218-apeal-183-21 & 664-22 (Judgment)
major omissions and contradictions. There was no reference
to her visit to Hyderabad and to the various incidents in
Hyderabad which she had narrated in her deposition. The
victim PW-5 and PW-10 contradict each other as to when
and how they went to the police station.
iii. Considering the description of various instances, the medical
evidence should have reflected severe injuries to the victim.
However, the medical evidence is to the contrary and,
therefore, there is no corroboration to the story of the
victim.
iv. The accused No.2 was not residing with the accused No.1.
There is no sufficient evidence to show that the accused
Nos.1 & 2 were married to each other. None of the residents
from the locality is examined. Nobody had seen the victim
in that house.
v. The evidence shows that the watchman of the building made
entries of the visitors but that watchman is not examined.
No entries are produced on record. PW-8 was a resident of
21 of 35 218-apeal-183-21 & 664-22 (Judgment)
the same building and he has accepted that the shouts could
be heard from outside. The victim i.e. PW-5 has deposed
that at the time of commission of rape she shouted loudly
but nobody had heard her shouts. This was contrary to the
version of PW-8. When the police had gone to the flat after
registration of the FIR, no articles of the victim were found
in that flat. This is improbable if the victim's version was
true.
vi. According to the victim, she stayed there for about a month
and,therefore, her articles including her clothes should have
been found in the flat. The incident itself could not have
happened and the accused No.2 could not have committed
rape on the victim in front of his own wife.
23. The learned counsel Smt. Anjali Patil supported most of
these submissions and made additional submissions as follows :
i. The prosecution has not clearly established as to how the
victim had come to Mumbai and who exactly had brought
her. There is contrary evidence in that behalf. The victim
22 of 35 218-apeal-183-21 & 664-22 (Judgment)
was educated and was a bright student. Yet, she could not
give details of the train journey either from Delhi to Mumbai
or from Mumbai to Hyderabad and back.
ii. The victim PW-5 could stay connected with her mother but
no such grievance was made by her to her mother. Even her
mother's statement is not recorded and she is not examined
as a prosecution witness. No other family member of the
victim is examined.
iii. The neighbour who was instrumental in sending the victim
to Mumbai is also not examined. She is not even identified
by the investigating agency. The CCTV footage of Delhi
Railway Station is not procured. The CDR is not produced.
There is nothing to show that PW-10 had made any call to
the Child Helpline Number.
iv. PW-2 who is an important witness, who claims to be a
resident of the same building. He has not produced any
document to show that he was residing in that building. The
leave and license agreement produced on record was not
23 of 35 218-apeal-183-21 & 664-22 (Judgment)
signed by the accused No.1 and, therefore, there is nothing
to show that she had occupied any flat in that building.
v. If many people visited the house of the accused No.1, it
would have been natural for the residents to notice them.
But no one from the building is examined to establish and
corroborate the prosecution evidence.
vi. The medical evidence does not corroborate the victim's
evidence. The doctor had not given his final opinion during
investigation. The victim's story as to why she had come to
Mumbai is extremely doubtful.
vii. There is no evidence to show why she actually stayed with
the accused No.1. She had not stated anything about her
visit to Hyderabad in her FIR.
viii. There is no evidence that there really was such N.G.O. and
that PW-3 was its worker.
24. The learned counsel appearing for the victim -
respondent No.2 in Criminal Appeal No.183/2021 made her
submissions. Since she was representing the victim in that appeal I
24 of 35 218-apeal-183-21 & 664-22 (Judgment)
have also heard her on behalf of the victim in the connected
Criminal Appeal No.664/2020. She submitted that though the
victim has not stated anything about her visit to Hyderabad and
the incidents in Hyderabad; her deposition in respect of all the
incidents in Mumbai are consistent. The main incident which is
the subject matter of both these appeals is commission of rape by
the accused No.2 with the help of the accused No.1 and in that
behalf the evidence of PW-5 is quite reliable. When the incident
took place, the victim did raise shouts but her shouts could not be
heard outside because the windows and the door of the flat were
shut. This is explained by PW-5 in her evidence and there is no
reason to doubt that explanation. The medical evidence did in fact
support the prosecution case. PW-3 and PW-10 are totally
independent witnesses and they have no reason to implicate the
accused falsely.
25. The learned APP also made the same submissions. He
added that the background of this case needs to be taken into
consideration. Some contradictions which do not go to the root of
the matter are quite understandable under the circumstances. She
25 of 35 218-apeal-183-21 & 664-22 (Judgment)
has consistently deposed that she was forced to undergo this
ordeal in spite of her strong resistance. The medical evidence does
indicate physical violence.
26. I have considered these submissions. Undoubtedly the
evidence of PW-5-the victim will have to be scrutinized minutely.
There is hardly any dispute that she was in a bad financial
position. As far as her age is concerned, the learned Judge has
given benefit of doubt in favour of the accused, as according to the
learned Judge, the prosecution has not proved that the victim was
below eighteen years of age. The learned Judge has recorded a
finding that the school record of PW-5 showed different date of
birth and the Aadhaar Card showed some different date of birth.
The evidence of the doctor was that the victim was between 17 to
18 years of age and there was a margin of two years in that
medical report. In this view of the observations and finding, the
accused were acquitted from the charges of the offence under the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act) and under Sections 370A, 370(4) read with 34 of the Indian
Penal Code. The State has not challenged this acquittal and,
26 of 35 218-apeal-183-21 & 664-22 (Judgment)
therefore, this finding which is based on sound reasoning has
attained finality.
27. The next question would be whether her deposition
inspires confidence. From that point of view, it is necessary to see
in what manner and under what circumstances the case came to
light. PW-10 who was residing in the same building was
approached by the victim herself asking for help. The said witness
PW-10 has not had personal interaction with either of the accused.
He acted purely on humanitarian grounds with social awareness.
He made a phone call to Child Helpline Number pursuant to which
PW-3 met them and the victim was taken to the police station.
That part of the story has practically remained unchallenged.
Therefore, it is quite clear that PW-5 was in urgent need of help to
rescue herself from the clutches of the accused. Because of the
help given by PW-10 and PW-3 she could approach the police.
After that, the police immediately went to the house where she
was confined. The house was found locked. It was not opened on
that day. On the second visit, they broke the lock and entered the
house. By that time the accused were aware that PW-5 had
27 of 35 218-apeal-183-21 & 664-22 (Judgment)
escaped and, therefore, they had sufficient time to set their house
in order. In such circumstances, the victim's clothes or other
articles not being found in that flat, would not be a circumstance
in favour of the accused. Moreover, there was one cupboard which
was still locked and it was not opened during investigation.
Therefore, it cannot be said that, based on this evidence, as
suggested by the defence that it was unnatural that clothes and
articles were not found in the flat.
28. Significantly, the victim PW-5 had identified both the
accused Nos.1 & 2 before the Court. Again, there is hardly any
challenge to that particular identification. She was staying with
the accused No.1 for almost a month. The accused No.2 used to
visit that house and, therefore, she was knowing them.
29. Both the learned counsel for the accused rightly
submitted that the victim PW-5 has not spoken a word about her
visit to Hyderabad. To that extent they are right, but, that still does
not wipe out the consistent story regarding the incidents that had
taken place in Mumbai during PW-5-the victim's stay with the
28 of 35 218-apeal-183-21 & 664-22 (Judgment)
accused No.1 in particular. In that behalf it is necessary to take into
consideration the victim's state of mind. When she had approached
the police, she was rescued from the clutches of the accused in that
evening itself and naturally her first reaction was to narrate how
she could approach the police and she could only highlight the
important events. Therefore, not mentioning the trip to Hyderabad
will not go to the root of the matter particularly in respect of the
prosecution case regarding the incidents which have taken place in
Mumbai.
30. There is hardly any substance in the submission that
how the victim came to Mumbai; would make a difference to the
outcome of this case. There cannot be any dispute that the victim
was in Mumbai. She was found in that very building where the
accused No.1 and PW-10 were staying. Subsequently, she was sent
to a Shelter Home at Delhi and then was reunited with her family.
Therefore, there cannot be any dispute that she was rescued from
Mumbai; and hence, how she came to Mumbai would hardly make
any difference to the prosecution case. There is no possible
explanation by the defence as to why the accused were implicated
29 of 35 218-apeal-183-21 & 664-22 (Judgment)
by PW-5.
31. As far as the medical evidence is concerned, the doctor
PW-4 has in clear terms mentioned that her medical opinion was
that sexual and physical violence was committed on her. Though,
she had not specifically mentioned it in his report, while giving
deposition before the Court she has recorded her opinion and has
given reasons for the same. I do not see any reason to over-turn
this opinion given by the medical officer based on her examination
of the victim. She had also found that there were injuries on the
cervix. Therefore, it cannot be said that the medical evidence did
not corroborate the victim's version.
32. Since I have reached the conclusion that the victim was a
reliable witness and that her evidence is supported by the medical
opinion, then the only question which remains to be discussed is
about the incident when the accused No.2 had committed rape on
PW-5. In that regard, her narration is consistent throughout. She
has described the incident. She has described the role played by
the accused No.2 as well as by the accused No.1 and she has also
30 of 35 218-apeal-183-21 & 664-22 (Judgment)
specified as to how the accused No.1 helped the accused No.2 in
that act. She has deposed that the said incident took place in one
of the rooms and, therefore, presence of the accused No.1's
daughter in the house when there was one more room will not
make the incident improbable. The victim has also explained that
the doors and the windows of the house were closed. The
evidence shows that she was over-powered by both the accused
Nos.1 & 2 and, therefore, the other residents and in particular PW-
8 or PW-10, not hearing any shouts was not improbable.
33. As far as the allegations that PW-5 was subjected to
sexual exploitation within the meaning of Section 370 of IPC is
concerned, the learned Judge has already convicted the accused in
that connection and they were sentenced for the same. There is no
appeal by the State for enhancement of the sentence awarded for
those sections. Both of them are also convicted and sentenced for
commission of offence punishable under Section 5 of the Immoral
Traffic (Prevention) Act, 1956. Therefore, there is no reason to
interfere with that part of the conviction and sentence.
31 of 35 218-apeal-183-21 & 664-22 (Judgment)
34. Therefore, now the next question is about the sentences
which can be imposed on the accused for commission of offence
punishable under Section 376 of IPC for the accused No.2 and
under Section 376 read with Section 109 of IPC for the accused
No.1.
35. The learned counsel for the accused No.1 submitted that
even if it is held that the offence is committed, the main offender is
the accused No.2 and not the accused No.1 as far as the offence
under Section 376 read with Section 109 of IPC is concerned. She
is a lady. She was granted bail in January, 2022. Till then she was
in custody for more than six and a half years. She has no other
criminal antecedents. Therefore, the minimum sentence which
could be imposed under Section 376 of IPC on the date of incident
i.e. in the year 2015 be imposed on her.
36. The learned counsel for the accused No.2 submitted that
he is continuously in custody since more than seven and a half
years. He does not have any criminal antecedents. He has his own
family and there is no one to look after the family. The appellant
32 of 35 218-apeal-183-21 & 664-22 (Judgment)
No.2 was never granted either parole or furlough during all these
years and he could not spend time with his family and growing
children. He, therefore, submitted that some leniency be shown
to him.
37. The learned APP as well as the learned counsel for the
respondent No.2 submitted that considering the background the
sentence imposed by the trial Court is proper.
38. I have considered these submissions. Based on the
submissions made by both the learned counsel for the accused,
some leniency can be shown to the accused considering that they
have spent considerable period in jail during pendency of the trial
and during pendency of these appeals. There are no criminal
antecedents. The accused No.1 is a lady. Hence, in my opinion,
the minimum sentence which could be imposed on the date of
offence can be imposed on the accused No.1 Sampa Roy. However,
since the accused No.2 has committed the main offence he needs
to be sentenced with a higher sentence. Considering the
background, some more sentence than the minimum sentence is
33 of 35 218-apeal-183-21 & 664-22 (Judgment)
required to be imposed on him. That will meet the ends of justice.
In my opinion, sentence of RI for nine years for the accused No.2
would serve the purpose. Hence, the following order :
::: O R D E R:::
i. The appeals are partly allowed.
ii. The conviction and sentence recorded against the appellant
i.e. accused No.1 Sampa Roy for commission of the offence
punishable under Section 370(2), Section 370A(2) of the
Indian Penal Code as well as under Section 5 of the
Immoral Traffic (Prevention) Act, 1956 are maintained.
iii. The conviction of accused No.1 Sampa Roy under Section
109 read with 376 of IPC is also maintained. However, the
sentence of RI for twelve years imposed on her for this
offence is reduced to RI for seven years in addition to fine of
Rs.10,000/- (Rupees Ten Thousand Only) and in default of
payment of fine to suffer SI for three months.
iv. The conviction and sentence as recorded by the trial Court
against the accused No.2/appellant Mangal Ray for
34 of 35 218-apeal-183-21 & 664-22 (Judgment)
commission of offences punishable under Section 5 of the
Immoral Traffic (Prevention) Act, 1956 and under Section
370A(2) of IPC are maintained.
v. The conviction of the accused No.2/appellant Mangal Ray
for commission of offence punishable under Section 376 of
IPC is maintained. However, instead of RI for twelve years,
he is sentenced to suffer RI for nine years in addition to
payment of fine of Rs.10,000/- (Rupees Ten Thousand Only)
and in default of payment of find to suffer SI for three
months.
vi. All the substantive sentences of both the accused are directed
to run concurrently.
vii. Both the accused/appellants are given set off under the
provisions of Section 428 of Cr.P.C.
viii. The rest of the clauses of the operative part of the impugned
judgment and order, which are not inconsistent with this
order, are maintained.
ix. The Trial Court shall take steps in accordance with law so
35 of 35 218-apeal-183-21 & 664-22 (Judgment)
that both the accused/appellants serve their remaining
sentence.
x. With these directions, both the appeals are disposed of. With
disposal of the appeals, nothing survives in the pending
Interim Application and the same also stands disposed of.
(SARANG V. KOTWAL, J.)
