1999 ALL MR (Cri) 583
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHNU SAHAI AND R.P. DESAI, JJ.
Arun Jaysingh Khandagale & Ors. Vs. The State Of Maharashtra
Cri. Appeal No. 199 of 1997
20th March, 1999
Petitioner Counsel: Mr. B. G. VAIDYA
Respondent Counsel: Mrs. USHA KEJARIWAL
(A) Evidence Act (1872), S.9 - Identification in court - Rape in the train - Prosecutrix was in the bogie for about 18 hours - She had talk with accused - They were drunk and rowdy - They drove out passengers from the bogie and then raped her in turns - Held she had enough time to observe them and her identification in Court would be sufficient.
1993 Cr. L.J. 1800 Rel. on. (Para 19)
(B) Penal Code (1860), S.376(g) - Gang rape - Prosecutrix a married lady with two children - Accused held her arms and legs and then raped her - Prosecutrix not in a position to resist - Absence of injuries on her body is not fatal to the prosecution case. (Para 21)
(C) Penal Code (1860), S.376 - Gang rape - Incident taking place at 12 midnight and prosecutrix examined at 14 hours the next day - Absence of semen in the vaginal swab and vaginal smear will not affect prosecution case adversely. (Para 21)
(D) Penal Code (1860), S.376 Expln. 1 - Gang rape - Accused No.1 outraging modesty of prosecutrix and helped other three accused to rape her by pressing her mouth - Held he shared common intention with others to rape her and was rightly convicted.
AIR 1996 SC 1393 Rel. on. (Para 24)
(E) Penal Code (1860), Ss. 85 and 376(g) Accused voluntarily drinking liquor and subjecting a helpless poor lady to gang rape - They are not entitled to benefit of S. 85 - Conviction and sentence of 10 years R.I. was perfectly justified. (Para 28)
SMT. DESAI, J.:- The appellants-accused nos. 1 to 4 were charged under section 376(g), 354, 504 read with Section 34 of the Indian Penal Code and were tried for the said offences in the Court of Sessions Judge at Solapur in Sessions Case No. 140 of 1996.
2. By the judgment and Order dated 1st March, 1997, the learned Sessions Judge convicted the appellants for the offence punishable under section 376(g) of the Indian Penal Code and sentenced them to suffer R.I. for 10 years and to pay a fine of Rs. 1,000/- each and in default to suffer further R.I. for 90 days. The accused were acquitted of the offences punishable under section 354, 504 and 506 read with Section 34 of the I.P.C.
3. Being aggrieved by the said judgment and order of conviction and sentence the appellants-original accused nos 1 to 4 have preferred this appeal. For the sake of convenience appellants no. 1 to 4 are referred to hereinafter as "accused nos. 1 to 4" respectively.
(a) Accused nos. 2, 3 and 4 are residents of Nasik. They are drivers. They are also members of the Driver's union.
(b) On 17th May, 1996, Sunderam Transport Company situated at Nasik sent accused nos. 2 to 4 to Cochin. They were to take new vehicles to Cochin. Accused nos. 2, 3 and 4 alongwith Accused No.1 were returning from Cochin by Cochin-Kurla Netravati Express.
(c) The prosecutrix (P.W.1) is a married lady, having two children. She was residing at Kundantalai District Trichirappalli, Madras (Chennai), Tamil Nadu.
(d) On 20-5-1996, the prosecutrix boarded the same Cochin-Kurla Netravati Express in which the accused were present from Erode Railway Station at about 00.01 hours. Her son Abubakar Siddique aged 12 years was with her. She boarded the general bogie in which the accused were present.
(e) On 21st May, 1996, at about 9-45 p.m. she took meals. She handed over her bottle to accused no.1 for water. However, accused no.1 did not bring water. Instead he brought liquor in the said bottle. Accused decided to take liquor and they asked other passengers in the bogie to leave the bogie. The other passengers accordingly left the bogie. The prosecutrix was sleeping in between the two benches on the floor. Accused no. 1 slept by her side. He assured her that he would not do anything to her but asked her to sleep quietly. Accused put off the lights. Thereafter accused no. 1 caught her hand. Other accused pressed her mouth. They also prepared curtain on the passage of the bogie. Accused also pressed her breast. They caught her hands and legs. Thereafter accused had forcible intercourse with her in turns. Accused quarrelled amongst themselves and Accused no. 2 sustained bleeding injury.
(f) One Nagnath Machappa Dadanavaru (P.W. 5) was in the same train. According to him on 21-5-1996 at about 10 p.m. he boarded the said train. He found all the four accused under the influence of liquor. They had created terror in the bogie. They were asking persons sitting in the bogie to vacate that place. They also gave threats to Nagnath (P.W.5) and, therefore, he changed his place and was sitting at the door of the bogie. The accused drove him away from that door and, therefore, he went to another door of that bogie. Thereafter lights went off. He heard the voice of a lady crying Ammage. This happened after the train left Vadshinga railway station at about 12 in the night. After hearing the voice he went near the bogie and he noticed that a curtain was made by using bedsheet. He found that the accused were having forcible sexual intercourse with the prosecutrix. After the incident was over, he found the prosecutrix crying. He enquired with her as to how many persons had raped her and she informed him that four persons had raped her. He asked her to inform the police and promised to help her.
(g) The train haulted at Pune station at about 3.30 a.m. Nagnath narrated the incident to P.S.I. Naikwadi of Daund Railway Station who was on patrolling duty and informed him that the culprits were present in the train. He showed accused nos. 1 and 2 to the police - The police apprehended accused nos. 1 and 2. Accused nos. 3 and 4, however, ran away. PSI Naikwadi brought the prosecutrix, both the accused and witness Nagnath to Railway Police Station. Report of the prosecutrix was reduced into writing, which is at Exhibit - 7. Her clothes i.e. Salvar Kamees and Odhani were seized. Clothes from the person of accused nos. 1 and 2 were seized in the presence of panchas and all the three were sent for medical examination to Sassoon Hospital, Pune. As offence had taken place in the jurisdiction of Kurduwadi Police Station, the accused were transferred to Kurduwadi Police Station and offence came to be registered there.
(h) Prior to that at Pune Railway Station during investigation names of other accused were revealed. Head Constable Ramdas went to Nasik and arrested Accused nos. 3 and 4 on 23-5-96 and 24-5-96 respectively and brought them to the Railway Police Station, Pune. From there they were transferred to Kurduwadi Police Station.
(i) On 26-5-1996, quilt was seized from accused no.2. During investigation pursuant to the statement made by accused nos. 3 and 4 their clothes were seized from their houses and accused no. 3 was also sent for medical examination. During the course of medical examination of the prosecutrix as well as accused necessary samples of blood semen, vaginal swab etc. were collected and were sent to the chemical analyser for his report. Accused no. 2 was sent for medical examination to Rural hospital Rajguru Nagar, District Pune as he had sustained injuries on his head.
(j) Identification parade was conducted by the Executive Magistrate/Tahsildar on 17th July, 1996 i.e. nearly after two months of the incident. Witness Nagnath identified all the four accused. It may be stated here that the entire evidence of identification parade has been rejected and in our opinion rightly, by the learned Sessions Judge.
(k) After completion of the investigation the accused came to be charged as aforesaid. The accused pleaded not guilty. Their defence was that of denial. According to them they were falsely involved in the case on account of misdentity.
5. In support of its case as regards the incident in question the prosecution examined P.W. 1 the prosecutrix, and P.W. 5 Nagnath. Details of investigation are provided by P.W. 7 Moinuddin Naikwadi, PSI Daund Railway Police Station, P.W. 11 Nagnath Sadashiv Bhosale P.S.I. Railway Dhond, P.W. 12 Ganpat Kamble A.P.I. Pune Railway Station, Pune and P.W. 8 Head Constable Ramdas Hole Pune Railway Station Pune, who effected arrest of accused nos. 3 and 4. The medical evidence is given by P.W. 13 Dr. Shantanu Abhyankar who has examined the prosecutrix, P.W. 14 Dr. Balaji Jadhav, who has examined accused nos. 3 and 4 and P.W. 16 Dr. Ulhas Jadhav, Medical Superintendent Rural Hospital, District Pune who has examined accused nos. 1 & 2. Since the evidence of identification parade is rightly rejected by the Sessions Judge, in our opinion, it is not necessary to refer to it.
6. After perusing the evidence and after considering the documentary evidence such as chemical analyser's report, the learned Sessions Judge convicted the accused under section 376(g) of the I.P.C. and sentenced them to suffer R.I. for 10 years and to pay a fine of Rs. 1,000/- each and in default to suffer further R.I. for 90 days. They were acquitted of the offences punishable under section 354, 504 and 506 read with Section 34 of the I.P.C. Being aggrieved by the said judgment and order, the accused have preferred the present appeal.
9. Firstly Mr. Vaidya submitted that the incident alleged by the prosecutrix, is inherently improbable. He submitted that the train was admittedly crowded and, therefore, it is not possible that such an incident would take place in a crowded bogie. We are not impressed by this submission of Mr. Vaidya. The prosecutrix has categorically stated that the accused were drunk. They drove out the other passengers. They were rowdy. Therefore, the accused ensured that in the bogie there would be no one except the prosecutrix and the accused. The fact that the accused were drunk is also supported by P.W. 5 Nagnath who says that the accused were drunk. They threatened the passengers and asked them to leave. In fact P.W. 5 Nagnath was also threatened and asked to leave and he accordingly complied with their direction.
10. It is natural that passengers would leave the compartment in such circumstances for fear of some untoward incident endangering their life taking place. Accused also put off lights. Therefore, there is nothing improbable about the incident.
11. Mr. Vaidya then contended that the evidence of the prosecutrix does not inspire confidence. He stated that the prosecutrix consented to sleep on the floor and allowed accused no.1 to sleep next to her. This shows that she was a consenting party. This submission deserves to be rejected immediately. In our opinion, the prosecutrix appears to be a very truthful witness. She has stated that accused no.1 brought liquor in her bottle. Accused drank liquor. Accused no. 1 asked her to sleep on the floor and accused no.1 slept next to her and after she fell asleep accused started outraging her modesty. The sequence of events which proceeded the incident of rape has a ring of truth. There is no reason for the prosecutrix to falsely implicate the accused and no such motive is made out.
There are only three discrepancies in her evidence. Firstly she does not say who caused bleeding injury to accused no.2. However, the fact that accused no.2. received bleeding injury is supported by the evidence of Dr. Ulhas Jadhav, who examined him on 22-5-1996. Therefore, the fact that accused no. 2 received injury is established. Secondly she has also stated that chain of the train was pulled by accused no. 2 and the police arrived and arrested him. It is not clear as to whether the train halted because the chain was pulled or it halted at Pune Railway station on its own because accused no.2 was arrested at that stage. However, not much importance can be given to this discrepancy because the fact that accused nos. 1 and 2 were arrested on the spot is admitted. It is supported by the evidence of the police witnesses P.W. 7, 8, 11 and 12. Therefore, this discrepancy also is not a material discrepancy.
Mr. Vaidya is right when he says that the prosecutrix has not specifically stated in the F.I.R. that Accused no. 1 raped her though she has stated that others did. However, in the Court she has stated that all the four accused raped her. This can at the most be termed as a mistake. Even assuming that Accused no.1 did not rape her but merely outraged her modesty and instigated others to rape her, in the facts of this case we are of the opinion that accused no. 1 shared common intention with the other accused and hence will be guilty of offence punishable under section 376(g). We shall advert to this a little later.
12. Mr. Vaidya also urged that in the evidence the prosecutrix has not assigned any specific role to each accused. It is true that she has not done so. However, her evidence finds corroboration in the evidence of P.W. 5 Nagnath and the Chemical Analyser's report and, therefore, merely because she does not assign any specific role to each accused her testimony cannot be discarded. The prosecutrix appears to be a rustic lady. She has no reason to falsely involve the accused. In fact the small discrepancies in her evidence make us conclude that she was not tutored. We find no reason to discard her evidence.
13. So far as the alleged consent is concerned, we are of the opinion that the evidence on record does not show that the prosecutrix consented. She has stated that the accused pressed her mouth. They caught her hands and legs and had forcible intercourse with her. There is nothing on record from which consent can be inferred.
"When sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the court shall presume that she did not consent."
15. The evidence of the prosecutrix is well supported by P.W. 5 Nagnath who says that he got into the train on 21-5-1996. He found that all the accused were under the influence of the liquor. The accused threatened all the passengers and even Nagnath to clear out and accordingly Nagnath left the bogie. After the train left Vadshinga railway station at about 12 in the midnight, he heard the voice "Amma ge" and he went to see as to what was wrong and he found that the accused had made a curtain by using a bedsheet. He claims to have seen the accused having forcible intercourse with the prosecuturix. He helped the prosecutrix to lodge complaint. He pointed out accused nos. 1 and 2 to the police pursuant to which the accused came to be arrested. This witness has no reason to falsely implicate the accused or concoct a false story. He is totally an independent witness. His conduct of helping the prosecutrix is commendable. No doubt certain discrepancies have been pointed out in his evidence which according to Mr. Vaidya indicate that he has not seen the actual incident. Assuming that to be so, the fact that he found accused in the bogie totally drunk, that he heard the prosecutrix crying, that he enquired with the prosecutrix and helped her to lodge a complaint are clearly established. The fact that accused nos. 1 and 2 were arrested on his pointing them out is also supported by the police witnesses. P.W. 7 Moinuddein Naikwadi, P.S.I. Daund Railway Police Station states in his evidence that one passenger Nagnath i.e. P.W. 5 informed him that in the general bogie one lady was raped. He and the prosecutrix showed him accused nos. 1 and 2 and they were arrested. P.W. 12 Ganpat Kamble API Pune Railway Police Station also states in his evidence that at about 3.45 a.m. P.S.I. Naikwadi and his police staff arrived at police station with the prosecutrix and Nagnath (P.W.5). Therefore, there is no reason to discard the evidence of P.W. 5 Nagnath.
16. After prosecutrix lodged her report, her clothes were seized under panchanama Exhibit 33. In that connection pancha Laxman Sutar (P.W.9) has been examined. The seized clothes were sent to the chemical analyser. The chemical analyser's report Exhibit 70 shows that few semen stains ranging from 0.5 c.m. to 2 c.m. in diameter were situated in the middle portion of the Salvar. On Exhibit 2 i.e. the Kurta two semen stains each about 1 cm. in diameter were found at back on the lower side. The semen detected on the Salvar and Kurta as per the Chemical Analyser's report is human. According to it semen detected on Exhibits 1 and 2 i.e. Salvar and Kurta showed reaction to (A), (B) as well as (O) blood group antigens. Therefore the Chemical Analyser's report corroborates that the prosecutrix was subjected to sexual intercourse in the train. Not only that it suggests that sexual intercourse by not less than three persons because three blood group antigens were found in the semen detected on her clothes.
17. Chemical analyser's report Exhibit 74 and 75 show that blood group of Accused no. 3 is (B) and that of accused no. 4 is (A) and semen of this blood group (A) and (B) was found on the Salvar Kurta of the prosecutrix. Semen of blood group (O) was also found on the clothes. However, report of blood group of accused nos. 1 and 2 is inconclusive. Therefore, finding of blood group of accused nos. 3 and 4 on the clothes of the prosecutrix is a clinching circumstance to prove their complicity in the offence of rape.
So far as accused no. 2 is concerned, Chemical Analyser's report shows that Ex. 7-C full pant seized from him had two semen stains at the front side. He was examined on 22-5-96 at about 2.25 p.m. and the doctor noticed absence of smegma. These facts alongwith the finding of injury on his person by the doctor lend corroboration to the evidence of the prosecutrix.
18. Mr. Vaidya has argued with all the vehemence at his command that the evidence of identification parade is worthless. Identification parade is held after two months and the guidelines have not been followed. The said evidence has rightly been rejected by the trial Court and, therefore, identity of the accused is not proved. He has submitted that identification in the Court is no identification at all.
19. We are not inclined to accept this submission of Mr. Vaidya. So far as accused nos. 1 and 2 are concerned they were arrested on the spot and they were in custody throughout. Case of accused nos. 3 and 4 stands on different footing because they were not arrested on the spot. The prosecutrix was with the accused in the same bogie for about 18 hours. She had a talk with accused no.1. Accused no.1 took her bottle and instead of water he brought liquor in it. In her presence all the accused drank liquor. They were rowdy. They were threatening the passengers. They asked her to sleep on the floor and accused no. slept next to her. They put off the lights and started taking liberties with her and in the end raped her. In such circumstances in our opinion considering the traumatic experience which the prosecutrix had it will not be possible for her to forget the faces of the accused who in such brutal manner raped her. She has observed the accused from close quarters. She was with them for a long time. She has conversed with them. It is not as if she has had a fleeting glance at the accused and, therefore, her identification in the Court will suffice. The same logic will apply to P.W. 5 Nagnath. Nagnath has also seen the accused from close quarters. He got into the same bogie. He found the accused drunk. They were threatening the other passengers and they even threatened him. On account of their threats he had to leave. He came to the same bogie when he heard cries of the prosecutrix. He claims to have seen the whole incident. Upon his pointing out accused nos. 1 and 2 came to be arrested. Therefore, this witness has also seen the accused for a considerable time. He had enough time to observe them. Identification by Nagnath (P.W.5) in the Court, therefore, cannot be faulted. Therefore, even if the evidence of identification parade is left out of consideration the conviction in the instant case can be still sustained on the basis of identification of the accused made by the prosecutrix and P.W. 5 Nagnath in the Court.
20. In this connection our attention has been drawn by the learned Additional Public Prosecutor Mr. Borulkar to the observations of the supreme court in the case of RAMESH KUMAR & ANOTHER Vs. STATE OF PUNJAB reported in 1993 Cri. L.J. 1800. The Supreme Court observed as under :-
"6. Learned Counsel for the appellants has vehemently argued that in the absence of test identification parade no reliance can be placed on the testimony of Ashok Kumar (P.W.3). We do not agree with the learned Counsel. Ashok Kumar has stated that he knew the appellants and even otherwise he was in the company of the appellants for about three hours and had witnessed the killings of Chhinda at their hands. There was no question of holding any test identification parade in this case."
The ratio of this judgment is clearly applicable to the facts of the present case.
21. Mr. Vaidya has contended that there are no injuries on the prosecutrix. If she was subjected to forcible intercourse as alleged, there would have been injuries on her. Undoubtedly the prosecutrix is a married lady, having two children. Therefore, the absence of injuries on the private parts does not disprove the prosecution case. Besides according to the prosecutrix her legs were caught, her mouth was pressed. Therefore, she had no scope to resist. Non-finding of injuries on her body is, therefore, not fatal to the prosecution case.
Mr. Vaidya has also urged that no semen was found in the vaginal swab and vaginal smear and this militates against any suggestion that the prosecutrix was subjected to sexual intercourse. The incident in question took place at 12 mid night and the prosecutrix was examined at 14.00 hours on the next day. Considering the time lag between the incident and the examination of the prosecutrix, in our opinion, non finding of the semen in the vaginal swab and the vaginal smear does not affect the prosecution case adversely.
22. Mr. Vaidya contended that at any rate no case is made out against accused no.1. In the F.I.R. the prosecutrix has stated that Accused no.1 outraged her modesty and he helped accused nos. 2, 3 and 4 to rape her, whereas in the Court she has improved her story and said that even accused no.1 raped her. Now admittedly accused nos. 1 and 2 were in the bogie and they were arrested on the spot. Accused nos. 3 and 4 have admitted that Accused nos. 2, 3 and 4 are drivers. They were sent to Cochin on 17-5-1996. Therefore, Accused nos. 3 and 4 must be with accused nos. 1 and 2 on the Cochin-Kurla Netravati Express. Even, if we go by the F.I.R. the prosecutrix has stated therein that Accused no. 1 took her bottle to get water and instead of water he brought liquor. Prosecutrix was asked to sleep on the floor and accused no.1 came and slept next to her. After she slept at about 12 O'clock, Accused no.1 started outraging her modesty. He pressed her mouth and others caught hold of her legs and they also put a curtain. After removing her Salvar accused nos. 2, 3 and 4 raped her. Accused no. 1 Arun outraged her modesty and helped Accused nos. 2, 3 and 4.
23. Mr. Vaidya urged that there is no averment in the F.I.R. that accused no. 1 committed rape on the prosecutrix. She has improved her story in the Court. In this connection it is significant to read Explanation 1 of Section 376 of the Indian Penal Code. Explanation 1 reads thus :-
"Explanation 1. - Where a woman is raped by one or more in group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub-section".
24. The manner in which accused no.1 outraged her modesty and helped others to commit rape on the prosecutrix clearly indicates his sharing common intention with the others to commit rape. We have no manner of doubt that the accused are guilty of gang rape. By driving passengers out of the bogie they ensured that the prosecutrix would be left alone in the bogie with a sleeping child. With the help of accused no.1 others forcefully raped her. The evidence of prosecutrix, in our opinion inspires implicit confidence. She is a truthful lady. Her evidence is supported by P.W. 5 Nagnath and the Chemical Analyser's report to which we have already made reference. In our opinion the learned Judge has rightly convicted the accused.
25. In our opinion the reliance placed by the learned Judge on A.I.R. 1996 S.C. Page 1393 (State of Punjab Vs. Gurmit Singh & Ors.) is apt. In that case the Supreme Court has laid down that "The testimony of the victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict the accused where her testimony inspires confidence and is found to be reliable."
In the instant case not only that the testimony of prosecutrix inspires confidence but there is corroboration to her evidence in the form of evidence of P.W. 5 Nagnath and the Chemical Analyser's report.
Admittedly the child was asleep. In the cross-examination the prosecutrix has stated that her mouth was pressed and therefore, she could not raise her voice. Her legs and hands were caught and hence she could not resist. Therefore, it is possible that the child would not have woken up because of the incident. In any case presence of a small child would hardly be a deterrent to the accused. We are more than convinced that the prosecution has proved its case beyond reasonable doubt.
27. At this stage Mr. Vaidya, drew our attention to proviso to Section 376(2) which says that "The Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
Mr. Vaidya urged that admittedly the accused were drunk and in a state of intoxication they have committed the act not knowing its nature and consequences and, therefore, leniency be shown to them. This argument of Mr. Vaidya can not be entertained at all. Section 85 of the I.P.C. reads thus :-
"85. ACT OF A PERSON INCAPABLE OF JUDGMENT BY REASON OF INTOXICATION CAUSED AGAINST HIS WILL. Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
28. Section 85 gives protection to a person who is incapable of judgment by reason of intoxication and commits offence. However, there must be evidence to show that the thing which intoxicated him was administered to him without his knowledge and against his will. In the present case accused no.1 brought liquor and all of them voluntarily drank it. There is no evidence of whatsoever nature to show that accused were given liquor without their knowledge or against their will. Therefore, they are not entitled to the benefit of Section 85 of the I.P.C. A helpless poor lady has been subjected to a brutal gang rape. From the manner in which the lady was raped, the irresistable conclusion which we are inclined to draw is that the accused are depraved persons. There is not a single mitigating circumstance which can come to their aid. We see no substantial, adequate and special reasons to bring down the maximum sentence of 10 years imposed on them to a lesser sentence. In our opinion, the order of conviction and sentence is perfectly justified.