Criminal Appeal No. 425 of 2018 · The High Court
Case Details
2024:BHC-AUG:4130-DB Criminal Appeal No.425/2018 withconnected appeals:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.425 OF 20181)[ Vishnu @ Tukya Haridas Dake,Age 19 years, Occu. Education ]Appellant No.1 has filed separate Appeal No.386/20222)Dhananjay @ Dhanya Yogiraj Rasal,Age 19 years, Occu. Labourer3)[ Balaji @ Balya Vilas Kamble,Age 20 years, Occu. Labourer ]Appellant No.3 has filed separate Appeal No.162/20204)Dadasaheb @ Dadya Bhausaheb Janrao,Age 21 years, Occu.All R/o Bembli, Taluka and District Osmanabad … APPELLANTSVERSUS1)The State of Maharashtrathrough Police Station Officer,Bembli Police Station,Tq. & Dist. Osmanabad(Copy to be served on Public Prosecutor, High Court of Judicatureof Bombay, bench at Aurangabad)2)X Y Z … RESPONDENTS.......Mr. Z.H. Farooqui, Advocate holding for Mr. N.V. Gaware, Advocate for appellants Mrs. V.S. Choudhari, A.P.P. for respondent No.1 – State Mr. A.Z. Zaidi, Advocate for respondent No.2 (appointed) ....…WITH
Legal Reasoning
Criminal Appeal No.425/2018 withconnected appeals:: 16 ::“5.4.2 In the case of Rai Sandeep aliasDeepu (supra), this Court had an occasion to considerwho can be said to be a “sterling witness”. In paragraph22, it is observed and held as under:“22. In our considered opinion, the “sterlingwitness” should be of a very high quality andcalibre whose version should, therefore, beunassailable. The court considering the versionof such witness should be in a position to acceptit for its face value without any hesitation. Totest the quality of such a witness, the status ofthe witness would be immaterial and whatwould be relevant is the truthfulness of thestatement made by such a witness. What wouldbe more relevant would be the consistency ofthe statement right from the starting point till theend, namely, at the time when the witness makesthe initial statement and ultimately before thecourt. It should be natural and consistent withthe case of the prosecution qua the accused.There should not be any prevarication in theversion of such a witness. The witness should bein a position to withstand the cross-examinationof any length and howsoever strenuous it maybe and under no circumstance should give roomfor any doubt as to the factum of the occurrence,the persons involved, as well as the sequence ofit. Such a version should have co-relation witheach and every one of other supporting materialsuch as the recoveries made, the weapons used,the manner of offence committed, the scientificevidence and the expert opinion. The saidversion should consistently match with theversion of every other witness. It can even bestated that it should be akin to the test applied inthe case of circumstantial evidence where thereshould not be any missing link in the chain ofcircumstances to hold the accused guilty of theoffence alleged against him. Only if the versionof such a witness qualifies the above test as wellas all other such similar tests to be applied, can Criminal Appeal No.425/2018 withconnected appeals:: 17 ::it be held that such a witness can be called as a“sterling witness” whose version can beaccepted by the court without any corroborationand based on which the guilty can be punished.To be more precise, the version of the saidwitness on the core spectrum of the crimeshould remain intact while all other attendantmaterials, namely, oral, documentary andmaterial objects should match the said version inmaterial particulars in order to enable the courttrying the offence to rely on the core version tosieve the other supporting materials for holdingthe offender guilty of the charge alleged.”5.4.3 In the case of Krishna Kumar Malik v.State of Haryana (2011) 7 SCC 130, it is observed andheld by this Court that no doubt, it is true that to holdan accused guilty for commission of an offence of rape,the solitary evidence of the prosecutrix is sufficientprovided the same inspires confidence and appears tobe absolutely trustworthy, unblemished and should beof sterling quality.”Keeping on mind the aforesaid observations, we needto appreciate the evidence in the case.28.The victim was a married girl/ woman. She claimed tohave left her matrimonial home as to have been ill-treated by herhusband. The defence has disputed the same and put the blameon the victim herself. For want of evidence, it can only be observedthat, it is not known as to for really what reason the victim wasstaying away from her husband. The victim testified to have had nophysical/ sexual relationship with her husband during her stay ather matrimonial home. This indicates that, she appears to have not Criminal Appeal No.425/2018 withconnected appeals:: 18 ::been speaking truth. Her evidence indicates that, she went to thefield of Pandu Mama for bathroom (urinating). It is not known as towhether such facility was not available at her residence. It was afull moon day. The victim claims to have been to the scene ofoffence by 7.00 in the evening. According to her, the appellantsdetained her for 5 hours. She meant to say that the incident lastedfor that much time. The same also does not stand to reason orappeal to us. It also does not appeal to us that A/4 stood guard onthe road for 5 hours. According to the victim, A/1, A/2 and A/3undressed her and then they undressed themselves. The evidenceindicates that the scene of offence was in the nearby of a populatedarea. Will it be logical to accede that for committing rape thepersons would undress themselves (completely remove all theclothes from their person). According to the victim, the appellantsassaulted her. True, the injury certificate indicates two injuries onher back. As per her version, she was fell on the agricultural field.According to her version, clothes on her person were removed.There is nothing to indicate her to have suffered any scratch orinjury on her back. According to the Medical Officer, the injuriesnoticed on the victim’s back were of the age of 24 hours. It isevidence in the nature of opinion. According to the victim, she waslet go by 12.00 midnight. When the appellants assaulted her andsubjected her to an offence of gang-rape, and the Police Stationbeing available in the village, she did not prefer to go either to the Criminal Appeal No.425/2018 withconnected appeals:: 19 ::Police Station or to her house. None of her family membersappears to have taken search for her since she did not return homeafter answering nature’s call. The victim went to the house of oneVimal Aunt, her neighbour. She was no way related to the victim.Vimal Aunt has not been examined as a witness in the case.Attention of the investigating officer (P.W.11) Kiran was drawn toVimal’s statement under Section 161 of the Cr.P.C. True, the trialCourt ought not to have allowed the same since Vimal was notexamined as a witness. However, since the same has beenbrought on record in the evidence of investigating officer, we referto the same, wherein he has stated that, Vimal disclosed in herstatement that the victim had stated to her to have come to stay ather residence overnight since her grandfather was harassing her.29.It is only on the following morning the victim went to herresidence and related her grandparents. The F.I.R. has beenregistered little past 12 hours of the incidence. According to thevictim herself, the appellants used to tease and trouble her. Shedid not make any complaint in that regard. The appellants haveevery reason to claim to have been falsely implicated since thevictim has grievance against them.30.True, the medical examination report of the victim(Exh.57) indicates that she gave history of sexual assault. TheMedical Officer noticed that, swelling over survical region besides Criminal Appeal No.425/2018 withconnected appeals:: 20 ::swelling over fourchette. The victim was medically screened littlepast 24 hours after the incident. On examination, the Medicalofficer reserved his opinion pending receipt of the FSL reports. Thesame indicates that he was doubtful about the say of the victim.31.The C.A. reports (Exh.60) also run counter to theprosecution case since no semen was detected on her vaginal andsurvical swabs. Same is the case about the C.A. reports (Exhs.67,68 and 69) (A/1, A/2 and A/3). Neither blood nor semen wasdetected on the survical swab or public hair.32.The learned A.P.P. has strongly relied on the D.N.A.reports (Exhs.80, 81 and 82). The report at Exh.80 indicates the interpretation, “Malehaplotypes obtained from semen stains cutting from kurta matchedwith the male haplotypes of control blood sample of accusedVishnu Haridas Dake” and opinion, “Male haplotypes obtained fromsemen stain cutting from kurta and control blood sample of accusedVishnu Haridas Dake is from the same paternal progeny.” The report at Exh.81 indicates the opinion,“(1)DNA profile obtained from scalp hair of victim xx x exactly matched with hair detected on cloth ofVishnu Haridas Dake and hair detected on baniyan atcrime scene. Criminal Appeal No.425/2018 withconnected appeals:: 21 ::(2)DNA profile obtained from hair detected oncloth of victim x x x exactly matched with public hairand control blood sample of Dhananjay Yogiraj Rasal.” The result of analysis at Exh.82 shows :- “For comparative DNA profiling results of ex.15 semenstain cutting from kurta refer F.S.L. M.L. CaseNo.DNA-1939/16 -----No male DNA is detected on ex.6 vaginal swab fromlabia majora, ex.7 vaginal swab from labia minoraand ex.8 vaginal swab of victim x x x . Noamplifiable DNA is obtained from ex.1 urethral swab(Ba-3636/15, ex.1 urethral swab (Ba-3637/15), ex.1urethral swab (Ba-3638/15) and ex.1 urethral swab(Ba-3639/15).”33.We do not propose to rely on the DNA reports for morethan one reason. It is not the prosecution case that one of theappellant left behind his banian or piece thereof before leaving thescene of offence. There is no evidence to indicate the clotheswhich came to be seized pursuant to the disclosure statementmade by A/1 to A/3 were on their person at the relevant time. Thedisclosure statement allegedly made by these appellants indicatethat they did not disclose the place whereat the clothes werehidden. The recovery panchanamas indicate that the clothes wereseized from open place, accessible to all. The Medical Officer hasrecorded in the history that the victim reported to have dipped herkurta in a water after the incident, meaning thereby, she washed Criminal Appeal No.425/2018 withconnected appeals:: 22 ::her kurta. It is surprising how cum a kurta even thereafter hadsemen stains.34.When all these articles were seized within four days ofregistration of the F.I.R., it is not known as to why the DNA profilingwas done very late. The DNA report (Exh.80) indicates that theDNA analysis started on 21/10/2016 and concluded on 24/11/2016.The articles were received for DNA profiling on 20/10/2016 i.e. 11months after the crime in question. Exh.81 indicates that theanalysis started on 21/11/2015 and completed on 24/11/2016. Ittook little over one year for analysis. The said report pertains toP.S. Reference letter dated 19/11/2015. Exh.82 indicates theanalysis started on 10/6/2016 and concluded on 24/11/2016. It took5 months for analysis. In case of Manoj and others Vs. State ofMadhya Pradesh (2023) 2 SCC 353, it has been observed inparagraph No.151 and 154 as below : “Collection and Preservation of Evidence If DNA evidence is not properly documented,collected, packaged, and preserved, it will not meetthe legal and scientific requirements for admissibilityin a court of law. Because extremely small samples ofDNA can be used as evidence, greater attention tocontamination issues is necessary while locating,collecting, and preserving. DNA evidence can becontaminated when DNA from another source getsmixed with DNA relevant to the case. This can happenwhen someone sneezes or coughs over the evidence ortouches his/her mouth, nose, or other part of the faceand then touches area that may contain the DNA to be Criminal Appeal No.425/2018 withconnected appeals:: 23 ::tested. The exhibits having biological specimen, whichcan establish link among victim(s), suspect(s), sceneof crime for solving the case should be identified,preserved, packed and sent for DNA Profiling.154.In Dharam Deo Yadav V. State of U.P. (2014) 5SCC 509 this Court discussed the reliability of DNAevidence in a criminal trial, and held as follows : (SCCpp. 528-29, para 36)36.The DNA stands for deoxyribonucleicacid, which is the biological blueprint of everylie. DNA is made up of a double strandedstructure consisting of a deoxyribose sugar andphosphate backbone, cross-linked with twotypes of nucleic acids referred to as adenine andguanine, purines and thymine and cytosinepyrimidines. … DNA usually can be obtainedfrom any biological material such as blood,semen, saliva, hair, skin, bones, etc. Thequestion as to whether DNA tests are virtuallyinfallible may be a moot question, but the factremains that such test has come to stay and isbeing used extensively in the investigation ofcrimes and the court often accepts the views ofthe experts, especially when cases rest oncircumstantial evidence. More than half acentury, samples of human DNA began to beused in the criminal justice system. Of course,debate lingers over the safeguards that should berequired in testing samples and in presenting theevidence in court. DNA profile, however, isconsistently held to be valid and reliable, but ofcourse, it depends on the quality control andquality assurance procedures in the laboratory.” 35.There is no evidence on record to indicate properdocumentation, packaging and preservation of the articles seized
Arguments
Criminal Appeal No.425/2018 withconnected appeals:: 2 ::CRIMINAL APPEAL NO.386 OF 2022Vishnu @ Tukya Haridas Dake,Age 22 years, Occu. Student,R/o A/p Bembli, Taluka and District Osmanabad… APPELLANTVERSUS1)The State of Maharashtrathrough its Police Officer Bembli Police Station,Tq. & Dist. Osmanabad2)X Y Z3)Dhananjay @ Dhanya Yogiraj Rasal,Age 19 years, Occu. Labourer,R/o A/p Bembli,Tq. & Dist. Osmanabad4)Balaji @ Balya Vilas Kamble,Age 23 years, Occu. Labour, R/o A/p Bembli,Tq. & Dist. Osmanabad5)Dadasaheb @ Dadya Bhausaheb Janrao,Age 24 years, Occu. Labourer,R/o A/p Bembli,Tq. & Dist. Osmanabad … RESPONDENTS.......Mr. Ajinkya Kale, i/b Talekar & Associates for appellant Mrs. V.S. Choudhari, A.P.P. for respondent No.1 – State Mr. A.Z. Zaidi, Advocate for respondent No.2 (appointed)Mr. N.V. Gaware, Advocate for respondents No.3 & 5 Mr. S.J. Salunke, Advocate for respondent No.4....…WITHCRIMINAL APPEAL NO.162 OF 2020 WITHCRIMINAL APPLICATION NO.3448 OF 2023Balaji @ Balya Vilas Kamble,Age 22 years, Occu. Labour,R/o Bembli, Taluka and District Osmanabad … APPELLANT Criminal Appeal No.425/2018 withconnected appeals:: 3 ::VERSUS1)The State of Maharashtra(Copy to be served on Public Prosecutor, High Court of Judicatureof Bombay, Bench at Aurangabad)2)X Y Z … RESPONDENTS.......Mr. S.J. Salunke, Advocate for appellant Mrs. V.S. Choudhari, A.P.P. for respondent No.1 – State Mr. A.Z. Zaidi, Advocate for respondent No.2 (appointed)....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 12th February, 2024Date of pronouncing judgment :27th February, 2024JUDGMENT (PER R.G. AVACHAT, J.) This group of three appeals is being decided by thiscommon judgment since the challenge therein is to the judgmentand order of conviction and consequential sentence, dated5/5/2018, passed by learned Special Judge, Osmanabad in Special(POCSO) Case No.02/2016. The details of the offences for whichthe appellants have been convicted and consequential sentenceare given below.SectionImprisonment Fine (Rs.)Accused No.1 to 4376(D) r/w 34 IPC Life imprisonment for20 years50,000/- each, in default R.I. for 2 years each Criminal Appeal No.425/2018 withconnected appeals:: 4 ::Accused No.1 to 4354(C) r/w 34 IPCR.I. for 1 year1000/- each, in default R.I. for 2 monthsAccused No.1 to 4324 r/w 34 IPCR.I. for 1 year1000/- each, in default R.I. for 2 monthsAccused No.2:377 IPCR.I. for 5 years2000/-, in default R.I. for 3 monthsThe substantive sentences have been directed to run concurrently.FACTS :-2.The appellants are numbered serially as per theirnumbers in the Charge (Exh.15) framed by the Trial Court. 3.P.W.1 (victim) was resident of village Bembli, Talukaand District Osmanabad. The appellants were also residents of thevery village. They used to tease the victim whenever she used togo to common water tank to fetch water. The victim went toagricultural field of one Pandu Mama to answer nature’s call by7.00 in the evening of 26/12/2015. Balaji @ Balya (A/3) caughthold of her hand, covered her mouth and fell her on the ground. A/4 stood on the road as a guard. Dhananjay @ Dhanya (A/2) andVishnu @ Tukya (A/1) undressed the victim. All the appellantsexcept Dadasaheb @ Dadya (A/4) too undressed themselves.They committed rape of the victim by turn. A/2 put his private partin the mouth of the victim. The victim was let go by 12.00 midnight.She stayed overnight at her neighbour, Vimal Aunt. She went her Criminal Appeal No.425/2018 withconnected appeals:: 5 ::residence following morning and related her grandparents theincident. Grandfather accompanied her to Police Station. Shelodged First Information Report.4.Based on the First Information Report (F.I.R. - Exh.18),a Crime vide C.R. No.116/2015 was registered. The victim wasmedically screened. She was also subjected to radiologicalexamination to ascertain her age since she claimed to have been ofthe age of 15 years at the relevant time. Victim’s statement wasalso recorded under Section 164 of the Criminal Procedure Code(Cr.P.C.). During medical screening of the victim and appellants,samples of their certain things were obtained for chemical analysisand D.N.A. profiling. Clothes on the person of the victim at therelevant time were also taken charge of. A/1 to A/3 made disclosurestatements, pursuant to which the clothes on their person wereseized under panchanamas (Exhs.102, 103, 104, 105, 110 & 111).School record of the victim was obtained. All the things seized ortaken charge of during the investigation were submitted to ForensicScience Laboratory for chemical analysis and D.N.A. profiling.Statements of the persons acquainted with the facts andcircumstances of the case were recorded. Upon completion of theinvestigation, the appellants were proceeded against by filingcharge sheet before the Special Court constituted for trial foroffences under the Protection of Children from Sexual Offences(POCSO) Act. The trial Court framed the charge (Exh.15). The Criminal Appeal No.425/2018 withconnected appeals:: 6 ::appellants abjured the guilt. Their defence was of false implication.5.The prosecution examined 11 witnesses and producedin evidence certain documents, to bring home the charge. The trialCourt, on appreciation of the evidence in the case, convicted theappellants and consequently sentenced to various terms ofimprisonment as stated hereinabove. The appellants were,however, acquitted of the offence punishable under Section 376(2)(i) o the Indian Penal code and Section 4 and 6 of the Protection ofChildren from Sexual Offences Act. The State did not prefer appealagainst acquittal. 6.Heard. Learned counsel for the appellants wouldsubmit that, the F.I.R. was lodged 12 hours after the incident. Themedical examination report of the victim does not reinforce theprosecution case. A/4 even did not do any overt act. He has alsobeen sentenced to suffer 20 years life imprisonment. Vimalbai, atwhose residence the victim allegedly stayed overnight, was notexamined. The victim was a married woman. Due to maritaldiscord, she was residing at the house of her grandparents.Procedure regarding sealing, sampling and preserving the articlesfor DNA profiling has not been strictly followed. The DNA profilingwas done by the concerned experts very late. According to learnedcounsel, the sole testimony of the victim inspired no confidence tosustain the sentence of life imprisonment. According to learned Criminal Appeal No.425/2018 withconnected appeals:: 7 ::counsel, the appellants were in the age group of 19 – 21 years atthe relevant time. They are in jail for little over 8 years. Theoffence being serious, the standard of proof necessarily was veryhigh. A reliance has been placed on host of authorities to ultimatelyurge for allowing the appeals.7.The learned A.P.P. would, on the other hand, submitthat, no leniency be shown to the appellants. It is a serious offence.Honour of a woman in the age group of 18 years was at stake. Thehistory given by the victim to the Medical Officer reinforces theprosecution case. The victim’s evidence is consistent with theaverments in the F.I.R. The C.A. reports to some extent and theD.N.A. reports go long way in establishing the case of theprosecution. The prosecution evidence has not been shattered.The learned A.P.P. relied on the following two judgments of theApex Court, and submitted for dismissal of the appeals.(1)Bharwada Bhoginbhai Hirjibhai Vs. State of GujaratAIR 1983 SC 753 (2)Phool Singh Vs. The State of Madhya Pradesh(Criminal Appeal No.1520/2021, decided on 1/12/2021)8.Learned counsel appointed for respondent No.2reiterated the submissions made by learned A.P.P.9.Considered the submissions advanced. Perused theentire evidence. Let us advert to the evidence in the case and Criminal Appeal No.425/2018 withconnected appeals:: 8 ::appreciate the same. The victim, in her evidence, testified that, she was 15–16 years of age at the relevant time. The trial Court, onappreciation of the evidence in the case, held the prosecution tohave not proved the victim to have been a child at the relevant time.10.The evidence of the victim indicates she was married.Since her husband was ill-treating her, she left the matrimonialhome and started residing at the house of her grandparents(parental). She has two younger siblings. Her mother was servingas a Sweeper at Osmanabad. The father stays in Pune. It isfurther in her evidence that, she would reside in a hutment. Therewas a common water tank at the village Bembli. The appellantswould tease her by taunts, playing obscene songs etc. whenevershe would be on her way to fetch water from the water tank andback. 11.It is further in her evidence that, by 7.00 p.m. on26/10/2015, she went to the land of Pandu Mama for bathroom(literally means for urinating). There was a standing crop in thefield. The appellants came to her. A/3 caught hold of her hand andcovered her mouth and fell her on the ground. A/4 stood on theroad as a guard. A/2 and A/1 undressed the victim. All theappellants except A/4 too undressed themselves. They committedrape of the victim by turn. A/2 put his private part in the mouth of Criminal Appeal No.425/2018 withconnected appeals:: 9 ::the victim. A/2 assaulted on her back with a belt (Injury Certificate -Exh.59). She was threatened for not disclosing the incidence. Itwas 12.00 midnight. She went to a house of Vimal Aunt(neighbour). On the following morning, she went to her house andrelated her grandparents and aunt about the incidence. Thegrandfather then took her to the Police Station. A lady constablerecorded her statement-cum-F.I.R. (Exh.18).12.It is further in her evidence that, she was medicallyscreened by Medical Officer at Rural Hospital, Bembli. She pointedout the scene of offence. Her statement made under Section 164Cr.P.C. was also recorded by a Magistrate. It is further in herevidence that, she was sporting a yellow colour pant and top of thesame colour. She had put on black knicker. She handed overthose clothes to the police. It is further in her evidence that, on herpointing out, a scene of offence panchanama (Exh.32), was drawn.13.The victim was subjected to a searching cross-examination. In response to the questions put to her, in defence, ithas come on record that she resided with her husband only for aperiod of two months. No coitus (sexual intercourse) did take placebetween the couple. She did not reside with her mother. She isilliterate and unable to read and write. She could, however,recollect the date of incident as the same has remained on hermind. She was residing in a hutment at village Bembli. It is a small Criminal Appeal No.425/2018 withconnected appeals:: 10 ::village. Appellants were residing in the nearby of her residence.Vimal Aunt, at whose residence she stayed overnight, was not herrelative. She claimed ignorance about the Grampanchayat to havedeveloped latrine in the hutment, she was residing at. Sheadmitted that, at Dalit Vasti, there is a latrine, in dilapidatedcondition. She did not lodge complaint or made any grievanceabout the appellants to have teased her many a time. Theinvestigating officer Mr. Dandge brought her to the Court on the dayon which her evidence was recorded. She denied to have lodged afalse F.I.R.14.P.W.2 Arun is a witness to the scene of offencepanchanama (Exh.32). He is also witness to the panchanama ofseizure of clothes of the victim (Exh.33). Nothing fruitful has beenbrought on record by the defence in his cross-examination. It was,however, brought to our notice that, the witness gave evidenceinconsistent with the happenings. Clothes seizure panchanamawas drawn first at 11.30 in the morning and the scene of offencepanchanama was drawn at 11.45 p.m. to 12.45 p.m. The witness inhis examination-in-chief changed the timings of the order in whichthose were made. 15.P.W.3 Dr. Shrikant was a Medical Officer on duty atP.H.C., Bembli on the given day. It is in his evidence that, the victimwas referred to him for medical examination. He did examine her to Criminal Appeal No.425/2018 withconnected appeals:: 11 ::find following two injuries on her person :-(1)Contusion 1 x 1 cm. on right side back near to center.(2)Contusion 2 x 1 cm. on right lateral back. The age of injuries was within 24 hours and the injurieswere simple in nature. The victim gave history of sexual assault while she hadbeen to toilet in a nearby field. He narrated the history given by thevictim. The medical examination report is at Exh.56 and the injurycertificate and Medico-legal Examination Report of Sexual Violenceis at Exh.57. After referring C.A. reports, he opined that there wassexual assault on the victim.16.P.W.3 Dr. Shrikant, during his cross-examination,testified that, swelling over fourchette and introits of a victim can bepossible by infection. He admitted to have had not given a primafacie opinion about possibility of sexual assault on the victim, whenhe examined her medically. He admitted to have had not issuedany final opinion regarding the same even after receipt of F.S.L.reports. He admitted that, the C.A. reports indicate no detection ofblood or semen in the sample relating to the victim. It is further inhis evidence that he issued certificate (Exh.58) stating that nomarks of resistance appeared on the private part or on the personof the victim. He, however, opined that, injuries on the back of the Criminal Appeal No.425/2018 withconnected appeals:: 12 ::victim were possible by an assault with a belt.17.His evidence further indicates that, he examined all theappellants to find them potent. He obtained blood samples of A/1,A/2 and A/3. We do not propose to refer to the evidence of P.W.4Dr. Ramesh, a Radiologist who examined the victim to ascertain herage since her age is not in issue now. Same is the case of P.W.7Sunita, Head Mistress (who produced school record of the victim inproof of victim’s date of birth).18.P.W.5 Davit is a witness to the disclosure statement(Exh.102) made by A/2, pursuant to which his clothes came to beseized under panchanama (Exh.103). He is also witness to similardisclosure statement made by A/1, pursuant to which his clothescame to be seized under panchanama (Exh.105).19.During cross-examination, P.W.5 Davit was categoricalto state that the panchanamas are silent to state from which placethe clothes were seized.20.P.W.6 Anant is another panch witness to the disclosurestatement made by A/3, pursuant to which his clothes came to beseized under the panchanama (Exh.113). His evidence indicatesthat, the clothes were seized from an open place.21.P.W.8 Salim and P.W.9 Rajaram were the HeadConstables who carried muddemal articles to F.S.L., Kalina Criminal Appeal No.425/2018 withconnected appeals:: 13 ::(Mumbai) and Aurangabad respectively. The office copies of theforwarding letters are at Exhs.124 and 129. 22.P.W.10 Suhas was a Circle Officer, who drew thesketch of the scene of offence. P.W.11- Kiran did the investigationof the crime. His evidence indicates that the victim gavesupplementary statement, alleging A/2 to have oral sex with her.He, therefore, invoked Section 377 of the Indian Penal Code. Hisevidence further indicates that he recorded statement of VimalAunt, wherein she disclosed that the victim had related her to havecome to her residence as her grandfather harassed her. Hisevidence further indicates that the scene of offence was at a nearbythickly populated hutment area.23.C.A. reports and D.N.A. reports are at Exh.60, 61, 62and 63.APPRECIATION :24.The question is, as to whether, based on the aforesaidevidence, the offence/s gets established. Gang rape is a seriousoffence. Section 376(D) speaks of gang rape. The offence ispunishable with imprisonment for a term which shall not be lessthan 20 years, but which may extend to life, which shall meanimprisonment of that person’s natural life and with fine. Serious isthe offence, strict shall be the proof. Criminal Appeal No.425/2018 withconnected appeals:: 14 ::25.In the case of Bharwada Bhoginbhai, the Apex Courtobserved in paragraph Nos.7 and 9 thus : “7.. . . . . This Court, in Rameshwar V. State ofRajasthan, (1952) 3 SCR 377 at p. 386 : (AIR 1952SC 54 at p. 57), has declared that corroboration isnot the sine qua non for a conviction in a rape case.The utterance of the Court in Rameshwar may bereplayed, across the time-gap of three decadeswhich have whistled past, in the inimitable voice ofVivian Bose, J., who spoke for the Court -“The rule, which according to the cases hashardened into one of law, is not thatcorroboration is essential before there can be aconviction but that the necessity ofcorroboration, as a matter of prudence, exceptwhere the circumstances make it safe todispense with it, must be present to the mind ofthe judge … … …The only rule of law is that this rule of prudencemust be present to the mind of the Judge or theJury as the case may be and be understood andappreciated by him or them. There is no rule ofpractice that there must, in every case, becorroboration before a conviction can beallowed to stand.”9.In the Indian setting, refusal to act on thetestimony of a victim of sexual assault in theabsence of corroboration as a rule, is adding insultto injury. Why should the evidence of the girl orthe woman who complains of rape or sexualmolestation be viewed with the aid of spectaclesfitted with lenses tinged with doubt, disbelief orsuspicion ? To do so is to justify the charge of malechauvinism in a male dominated society. We mustanalyze the argument in support of the need for Criminal Appeal No.425/2018 withconnected appeals:: 15 ::corroboration and subject it to relentless andremorseless cross-examination. And we must do sowith a logical, and not an opinionated, eye in thelight of probabilities with our feet firmly planted onthe soil of India and with our eyes focussed on theIndian horizon. We must not be swept off the feetby the approach made in the western world whichhas its own social milieu, its own social mores, itsown permissive values, and its own code of life.Corroboration may be considered essential toestablish a sexual offence in the backdrop of thesocial ecology of the western world. It is whollyunnecessary to import the said concept on a turnkeybasis and to transplant it on the Indian soilregardless of the altogether different atmosphere,attitudes, mores, responses of the Indian society,and its profile. The identities of the two worlds aredifferent. The solution of problems cannottherefore be identical. It is conceivable in thewestern society that a female may level falseaccusation as regards sexual molestation against amale for several reasons . . . . .” 26.The Apex Court, in case of Phool Singh (supra), madesimilar observations. It observed that, there can be a conviction onthe sole testimony of the victim/ prosecutrix when the deposition ofthe prosecutrix found to be trustworthy, unblemished, credible andher evidence is of sterling quality.27.We would also like to refer to the judgment of the ApexCourt in case of Santosh Prasad @ Santosh Kumar Vs. The Stateof Bihar (Criminal Appeal No.264/2020, decided on 14/2/2020),wherein it has been observed thus :
Decision
Criminal Appeal No.425/2018 withconnected appeals:: 24 ::and then submitted for DNA profiling. 36.In short,(1) There is delay of little over 12 hours in lodging of the F.I.R.,(2) The victim did not return her home post incident,(3)She stayed overnight at a house of her neighbour VimalAunt,(4)Victim told Vimal Aunt to have come to stay overnight as hergrandfather harassed her. (5)Vimal aunt has not been examined,(6)The Medical Officer, on examination of the victim, reservedhis opinion pending F.S.L. report,(7) C.A. report does not support the prosecution case,(8) No evidence as regards proper documentation, packagingand preservation of the articles seized and then submitted forDNA profiling, lead us to find the prosecution evidence to have notbeen inspiring confidence to sustain the conviction of the appellantsfor the offence of gang rape and related offences. In the result, theappeal succeeds. Hence the order :O R D E R(i) The Criminal Appeals are allowed. Criminal Appeal No.425/2018 withconnected appeals:: 25 ::(ii)The order of conviction and sentence dated 5/5/2018, passedby learned Special Judge, Osmanabad in Special (POCSO)Case No.02/2016 is quashed and set aside. The appellantsare acquitted of the offences for which they have beenconvicted by the learned Special Judge, Osmanabad. Theappellants shall be set at liberty forthwith if not required in anyother case. Fine amount, if paid, be refunded to them.(iii)Criminal Application No.3448/2023 stands disposed of.(iv)Fee of Mr. Zaidi, learned Advocate appointed for respondent No.2 is quantified at Rs.8,000/- (Rupees eight thousand).(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-