Criminal Appeal No. 203 of 2013

21st September, 2013

Petitioner Counsel: Mr. NITIN SEJPAL, Ms. POOJA BHOJNE
Respondent Counsel: Mrs. U.V. KEJARIWAL, Mr. SAKET KELKAR, Mr. MILIND SAWANT

Cases Cited:
Sadashiv Ramrao Hadbe Vs. State of Maharashtra & Anr., (2007) 1 SCC (Cri) 161 [Para 22]
Sudhansu Sekhar Sahoo Vs. State of Orissa, 2003 ALL MR (Cri) 2387 (S.C.)=(2002) 10 SCC 743 [Para 24]
Radhu Vs. State of Madhya Pradesh, 2007 ALL SCR 2713=(2008) 2 SCC (Cri) 207 [Para 24]
Rai Sandeep alias Deepu Vs. State (NCT of Delhi), 2012 ALL MR (Cri) 3038 (S.C.) =(2012) 3 SCC (Cri) 750 [Para 24]
Dilip & Anr. Vs. State of M.P., 2001 ALL MR (Cri) 2377 (S.C.)=(2001) 9 SCC 452 [Para 24]
State of Maharashtra Vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 [Para 25]

JUDGMENT

P. V. HARDAS, J. :- The appellant, who stands convicted for an offence punishable under Section 376 (2)(d) of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.1000/-, in default of which to undergo Simple Imprisonment for two months, by the District Judge - 5 & Additional Sessions Judge, Thane, by judgment dated 28/01/2013 in Sessions Case No.107 of 2011, by this appeal questions the correctness of his conviction and sentence.

2. This Appeal was admitted by this Court on 22nd March 2013. This Court, while deciding the Criminal Application No. 336 of 2013 filed by the Appellant seeking suspension of the substantive sentence of imprisonment and his enlargement on bail, pending the decision of the Appeal, permitted the Appellant to file a private paper-book. This Court, by the order dated 11th July 2013 directed that after the paper-book was filed, the Appeal be listed before the Court for final hearing. Accordingly, this Appeal was listed before us for final hearing.

3. Facts in brief, as are necessary for the decision of this Appeal, may briefly be stated thus :-

PW-12 API Harshvardhan Barve, who on 17.10.2010 was attached to the Vashi Police Station and was on night duty as Station House Officer, was informed by one Saha at about 8.55 a.m. about the incident, which had occurred in the Lotus Hospital at Vashi. Said Saha requested PW-12 API Barve to accompany him to said Hospital. PW-12 API Barve accordingly informed the Senior P.I., namely, PW-11 Rajkumar Chafekar and WPSI Choudhary about the incident and also requested them to come to the Lotus Hospital. PW-12 API Barve gave a letter at Exhibit 39 to the Medical Officer for ascertaining whether PW-2 - victim was in a condition to give her statement. Accordingly, PW-3 Dr. Abhijit Bagul endorsed that PW-2 - victim was in a condition to give her statement. In the presence of WPSI Choudhary, PW-6 Narayan, husband of victim, PW-3 Abhijit Bagul, the statement of PW-2 victim was recorded. Signature of the victim was obtained on her complaint. The complaint of PW-2 victim is at Exh. 30. Upon completion of the recording of the statement, an endorsement of PW-3 Bagul was also obtained on the complaint at Exh. 30. Thereafter, in the presence of panchas, a scene of the offence panchnama vide Exh. 24 was drawn and from the scene of the incident two bed-sheets came to be seized. In the presence of panchas, vide Exh. 25, the clothes of the victim were seized. On the basis of the complaint, at Exh. 30, an offence vide Crime No.449 of 2010 under Section 376(d) of the Indian Penal Code was registered.

PW-11 Senior Police Inspector Rajkumar Chafekar, who was also attached to the Vashi Police Station and who was entrusted with the investigation of the said crime, forwarded the seized articles to the Chemical Analyzer on 19.10.2010 under requisition at Exh. 67. On the same day, other articles had also been forwarded to the Chemical Analyzer under requisition at Exhibit 69. During the custodial interrogation on 21.10.2010, the Appellant expressed his willingness to produce the bottle of the injection "Mezolam" which has been concealed in the I.C.U. Accordingly, a memorandum was drawn in the presence of panchas at Exh. 57. The accused led the police and the panchas to the Lotus Hospital and produced a bottle of the injection "Mezolam" which had been concealed behind rack in the I.C.U. The said bottle of injection was seized in the presence of panchas at Exh. 58. On 28.10.2010 a request was made to the Judicial Magistrate First Class, Vashi, for recording 164 statement of PW-10 Indira and accordingly, 164 statement of PW-10 Indira was recorded at Exh. 63. After receipt of the reports of the Chemical Analyzer at Exhs. 49, 72 and 73, a charg-sheet against the Appellant was filed.

4. On committal of the case to the Court of Sessions, Trial Court, vide Exh.19 framed charge against the Appellant for an offence punishable under Section 376(2)(d) of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 12 witnesses. The defence of the Appellant was of denial. The Trial Court, upon appreciation of the evidence, convicted and sentenced the Appellant as afore-stated.

5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the Appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.

6. PW-6 Narayan, husband of the victim, states that on 16.10.2010 at about 9.00 a.m., he along-with his wife PW-2 victim, his two sons and his sister-in-law, had visited Durga Mata Puja organized at the Modern College Ground. At about 9.30 p.m., the victim complained of low blood pressure and therefore, she was admitted in the Lotus Hospital. According to PW-6 Narayan, the victim had been admitted by PW-7 Dr. Tadvi. The Appellant was the R.M.O. in the Lotus Hospital. At about 10.00 p.m., the condition of the victim deteriorated and therefore, the victim was shifted to the I.C.U. by the Appellant. The Appellant informed PW-6 Narayan that the victim would be kept under observation and further tests would be done on the next day. The Appellant allotted one bed in the General Ward to PW-6 Narayan, while his brother-in-law, who was in the Hospital at about 12.30 a.m. left the Hospital. PW-6 Narayan met his wife (PW-2 victim) at about 1.30 a.m. and the victim informed PW-6 Narayan that she was having some breathing problem. PW-6 Narayan, thereafter, went to the General Ward, where a bed had been allotted to him. According to PW-6 Narayan, during the night on two occasions he had been to the I.C.U. but noticed that the door was closed from inside. He tried to peep inside the I.C.U., but he was unable to see anything as the curtains had been drawn from inside. As the door had been closed from inside, he could not enter the I.C.U. also. PW-6 Narayan, therefore, returned back to the General Ward and slept. At about 7.00 a.m. he went to see the victim in the I.C.U. The victim asked him as to why he had not come to the I.C.U. to see her. PW-6 Narayan questioned his wife as to why she was asking so and as the victim, by pointing a finger to the Appellant, informed PW-6 Narayan that the Appellant had sexual intercourse with her for the whole night. On being so informed, PW-6 - Narayan slapped the Appellant and caught him. PW-6 Narayan, thereafter, telephoned his brother-in-law and on the brother-in-law coming to the Hospital, PW-6 Narayan informed him about the incident. Meanwhile, the other three Doctors i.e. Dr. Amit, PW-3 Dr. Abhijit Bagul and Dr. Chemburkar had arrived and the victim had narrated to them the incident. Meanwhile, the brother-in-law of PW-6 Narayan reached the Hospital with the Police.

7. In cross-examination, PW-6 Narayan has stated that he does not know any lady by name Anita Raju Kurmi. He has also stated that he does not know Bansi Doke. He has also denied the suggestion that Bansi Doke was his friend. He has, however, admitted as true that Bansi Doke accompanied by about 150 to 200 persons had gathered around the Hospital. He has, however, denied the suggestion that the mob was raising the slogans for assaulting the Appellant. He has, however, admitted that the Police had reached the Hospital prior to the arrival of the mob. He has also admitted as correct that the Police were pacifying the mob which had gathered around the Hospital. He has denied the suggestion that the mob ransacked the Hospital. He has also denied the suggestion that Bansi Doke, as a member, was present in the mob. He has further stated that he does not know as to whether Bansi Doke had acted as a panch in respect of the seizure of the clothes of the victim. He has also stated that he does not know if Anita Raju Kurmi had acted as another panch to the seizure of the clothes of the victim. He has admitted that he was in the Hospital upto 3.00 p.m. and in his presence only, the statement of the victim was recorded. He has also admitted as correct that the Appellant along-with other Doctors was also present in the hospital. He has admitted as correct that he was present when the victim was being interrogated by the Police and was also present when the statement of the victim was recorded. He has admitted that after the recording of the statement, the victim had signed the statement. He has also admitted that he had also signed the statement of the victim. He has also admitted as correct that thereafter, the victim was taken to the Navi Mumbai Municipal Hospital for medical check up and the Appellant was taken into custody and had also been taken for medical examination. He has denied the suggestion that Bansi Doke had been accompanied him on previous dates of hearing of the Sessions case. He has denied that Arjun Chaudhary, Satish Lokhande, Mangesh Thorat, Suresh and Bansi Doke are his friends. He has further denied that the victim was not in a position to give her statement and that he had helped the victim in narrating the recitals of the complaint. He has also denied the suggestion that the contents of the statement had not been narrated by the victim but had been told by PW-6 Narayan.

8. Prosecution has examined the victim, whose name is deliberately withheld as Prosecution Witness No.2. PW 2 - victim states that she was residing in the Flat in Sagar Society, along with her husband, PW 6 - Narayan and her two sons. On 16/10/2010 at about 9 p.m. she had attended Durga Mata Puja organized at the Modern College Ground, along with her husband and her two sons and other relatives. At about 9.30 p.m. she began to feel uneasy and, therefore, she was admitted to the Lotus Hospital by her husband and the other relatives. She further states that initial first aid was given to her, but thereafter, as she was breathless, she was shifted to the I.C.U. She has further identified the appellant/accused as the doctor who was on duty in the I.C.U. and who was a medical student of D.Y. Patil Hospital. She further states that in the late night the nurse had left the I.C.U. and thereafter the appellant closed the door of I.C.U. from inside. The appellant then went to the bed of the patient, whose bed was to the right side of the bed of PW 2 - victim. The appellant then came to the bed on which PW 2 - victim was sleeping and pulled the curtains around the bed. The appellant then slept on the left side of the bed of the victim and then removed the oxygen mask, ECG connection and also removed the saline drip. The appellant also removed the pulse pin from the finger of the victim and put it aside. The appellant put his fingers in the hairs of the victim and kissed her. The appellant opened the buttons of the gown and started sucking her breast. Since the victim was in a drowsy condition, she tried to resist and also attempted to shout. The appellant pressed her mouth and told the victim not to shout. The appellant then started playing with the body of the victim and told her that she was very beautiful and that he had loved her at first sight. The appellant then placed both the hands of the victim around his neck and pulled her near. The victim was in a drowsy condition and was, therefore, feeling sleepy. The appellant shook her face with his hands and told her by using her first name that he was besides her. The appellant, according to the victim, tried to bring her to wet-fullness. The victim had a sensation of passing urine and, therefore, told the appellant. The appellant then connected the oxygen mask, the saline drip, pulse pin and made her clothes in order and then called out to the lady attendant, who came with a urine pot. The appellant, at that time, slept on the adjoining bed. According to the victim since she was drowsy and, therefore, could not narrate anything to the lady attendant, who had come there. According to the victim, she was frightened also. The lady attendant thereafter left the I.C.U. carrying the urine pot with her. During this time, the appellant was on the adjoining bed and was fiddling with his mobile.

9. After sometime, the appellant again came towards the victim, removed all the attachments and started playing with her body. The victim attempted to resist the advances of the appellant, however, due to drowsiness she could not do so. The appellant then lifted the gown of the victim and placed both her legs on his shoulders and began to touch her private part. The appellant then inserted his penis in the vagina of the victim. According to the victim, this incident had taken place at about 2 a.m. on 17/10/2010. At about 7 a.m., the husband of the victim i.e. PW 6 - Narayan came in the I.C.U. and the victim narrated the entire incident to him. The appellant was present in the I.C.U. at that time. According to the victim, the police arrived thereafter and her statement was recorded and was read over to her in Hindi. She has identified her signature on her complaint/report at Exh. 30. She states that thereafter she was taken to the Municipal Hospital by the police, where she was medically examined. Her clothes were also seized. She has identified her clothes, which were shown to her.

10. In cross-examination, she has admitted that her husband PW 6 - Narayan is a octroi clearing agent and earns around Rs.50,000/- per month. She has also admitted that her sons are studying in third standard and in senior KG respectively. She has admitted that her entire family had accompanied her for Durga Puja. She has admitted that her blood pressure was low and because of that she was feeling giddy. She has admitted that she had not consumed water throughout day. She has also admitted that her husband and the relatives had saved her from falling down due to giddiness. She has admitted that she can read and write Marathi. She has admitted that when she was admitted in the hospital, she had not informed the Medical Officer about her breathlessness and anxiety. She corrected herself to state that she had informed the Medical Officer that she was breathless and suffering from anxiety. She has also admitted that she was suffering from thyroid and she has disclosed this to the Medical Officer at the time of admission. She has admitted as correct that since the time she was admitted in the hospital till she was discharged, she was conscious and well oriented. She has further admitted as correct that in the I.C.U. there were three beds. One patient was also present in the I.C.U. She has admitted that she does not know the name of the said patient. She has admitted that she does not know if the name of the said patient was Swapnil Waghmare. She has admitted that she had been given the hospital clothes for wearing after she was admitted in the hospital. She has admitted that she had asked for urine pot in between the incident. She has admitted that she had signaled the accused for urine pot. She has admitted that no gag was thrust in her mouth during the incident. She has denied the suggestion that the nurse used to examine the victim every hour and used to take her temperature, pulse, respiration, blood pressure. She has admitted that she had met Dr. Tushar at the time of her admission in the hospital and thereafter had not seen Dr. Tushar during the night. She has admitted as correct that proper medical treatment was given to her at the Lotus Hospital. She has admitted that her husband was present in the Lotus Hospital during the night. She has also admitted as correct that during the entire night, she had not called her husband to the I.C.U. She has denied the suggestion that her husband had come to the I.C.U. to see her on more than 2 to 3 occasions during the night. She has further admitted in the cross-examination that during the entire night, the nurse on night duty may have come to the I.C.U. once or twice. She was confronted with portion marked "A" to the effect that the appellant had ascertained if the patient who was sleeping on the adjoining bed was asleep and thereafter had come near the bed of the victim. She has admitted that portion marked "A" in her statement is correctly stated by her. She has denied the suggestion that the contents of portion marked "A" are false. She has also denied the suggestion that she was conscious at that time. She has volunteered that she was drowsy. She has admitted that she had realised that the appellant was removing oxygen mask, ECG connection and saline drip. Omission has been put to her that she had not stated in her report that she was drowsy when the oxygen mask, ECG connection and saline drip was removed. A suggestion was then put to her, which she has admitted as correct, that she was half asleep. She has also admitted that she has attempted to shout. She has admitted that the incident which commenced at about 2.30 a.m. continued for 2 to 2 ½ hours. She has also admitted as correct that her husband came in the I.C.U. at about 7 a.m. She has also admitted as correct that she had informed the incident to her husband immediately after he came in the I.C.U. She has admitted that she was conscious and well oriented from 7 a.m. to 1 p.m. on 17/10/2010. She has also admitted that below her signature, the signature of her husband was also taken. She has admitted that her husband was present when her statement was being recorded. She has denied the suggestion that from 7 a.m. to 1 p.m. she was drowsy and was not in a position to speak. She has also admitted that her husband had accompanied her when she had been taken to the Government Hospital for medical treatment. She has admitted that when she had been taken for medical examination, she had told the doctor that she does not remember if the appellant had any intercourse with her as she was drowsy. She has also admitted to have stated to the Medical Officer that as she was afraid, she had not screamed or resisted and had informed her husband in the morning. She has denied the suggestion that the history had not been recorded on the basis of what was told to the Medical Officer by the victim. She has denied the suggestion that when she was being ravished by the appellant, there was bleeding from her vagina. She has admitted in her cross-examination that Bansi Doke (who is examined as PW 1) is known to her as he is friend of her husband. She has also admitted that Bansi Doke is leader of NCP. She has admitted that Satish Lokhande and Arjun Choudhary are friends of her husband. She has also admitted that she knows Mangesh Thorat as he is a friend of her husband. She has admitted that the friends of her husband had visited the hospital on the day of the incident. She has also admitted as correct that they were assisting her husband and consoling him. She has admitted that she does not remember if Bansi Doke was present when the clothes worn by the victim were seized by the police. She has also admitted as correct that after her husband and Bansi Doke had narrated the incident to the police, the police had enquired from the victim and thereafter her FIR was scribed. She has admitted that the bill of the Lotus Hospital was not paid by her. She has denied the suggestion that she was drowsy from the time of her admission in the hospital till 7 a.m.

11. Prosecution has examined PW 10 - Indira Ghate, the nurse, who was on duty during the night. PW 10 - Indira states that on 16/10/2010 she was employed as a nurse in the Lotus Hospital at Vashi. On that day she was on night duty i.e. from 8 p.m. to 8 a.m. of the next day. She states that on that day one patient, who was suffering from cancer and the victim who was having low blood pressure were admitted in the I.C.U. At about 10 p.m., as per the directions of the appellant, she had administered medicines to the victim. At about 1 a.m. platelets were given to the cancer patient. At 1.30 a.m. the appellant directed PW 10 - Indira to inject an injection "Medaz" to the victim and also directed PW 10 - Indira to dissolve 1 ml does by diluting 10 ml distil-water. According to PW 10 - Indira, since she was suffering from asthma, she did not give the said injection to the victim. The appellant, therefore, advice PW 10 - Indira to go from the I.C.U. and take rest. PW 10 - Indira, accordingly, went out of the I.C.U. and the appellant had informed her that he would look after the patient i.e. PW 2 - victim. According to PW 10 - Indira, she went to the deluxe room and after taking nebulization, took rest. At about 5.30 in the morning, she went to the I.C.U. and noticed the appellant sleeping on the bed adjoining the bed of the victim. PW 10 - Indira, thereafter, wrote down the TPR, BP Charting from monitor from 2 a.m. to 5.30 a.m. and thus completed the medical case papers of the victim. She has admitted that the chart at Exh. 41 shows the TPR and the BP charting, as was disclosed in the monitor. She states that after some time husband of the victim came in the I.C.U. and the victim told her husband something, on which the husband of the victim slapped the appellant. In cross-examination, she has admitted that she is suffering from asthma since her birth. She has admitted that she has joined the Lotus Hospital 3 to 4 months prior to the incident and prior to her joining the Lotus Hospital, the appellant was already working there. She has admitted as correct that the appellant was regularly on night duty. She has admitted that, while in the hospital, she had suffered attacks of asthma on 3 to 4 occasions. She has also admitted that the victim was admitted in the hospital at about 10 p.m. She has admitted that she does not recollect as to whether the victim was admitted by Dr. Tushar. She was confronted with portion marked "A" from her statement that she had stated in her 164 statement that the victim was under treatment of Dr. Tadvi. She has admitted as correct that the relatives of the patient, namely, Swapnil Waghmare, were present in the hospital but were not present in the I.C.U. PW 10 - Indira has admitted that she was awake till about 1 a.m. She has admitted that notings made after 2 a.m. were made by her at 5 a.m. She has admitted that the entries were made on the basis of the data available on the monitor. She has also admitted that at 5.30 a.m. she attended both the patients in the I.C.U. and at 5.30 a.m. had made entries in Exhs.41 and 42. She has admitted that at 5.30 a.m. she had noticed the appellant sleeping on the adjoining vacant bed.

12. The victim was examined by PW 4 - Dr. Sachin Ajmera. PW 4 - Dr. Ajmera refers to the history narrated by the victim. He states that no evidence of any injury was noticed on her private part. No external injury was noticed on the abdomen as well as on examination of the anal. He, however, noticed a sticky secretions from the private part of which the swab was collected for chemical examination. He states that various samples of the swab, nail clippings, pubic hair etc. were drawn and were referred for chemical analysis. In cross-examination, he has admitted as true that if lady is forcibly raped, there would be injury marks. He has admitted as true that no markings of struggle were found on the body of the victim. He has also admitted as true that struggle marks would generally appear if the sexual intercourse is continued for 2 ½ hours either with consent or without consent. He has also admitted that there was no evidence of any injury on the private part. On seeing the report of the DNA examination, he has admitted that he could not conclusively state if the victim was subjected to forcible sexual intercourse. The report of the DNA is at Exh. 49 and as per the report of the DNA, "No interpretable male DNA is detected in ex1 Perinial swab, ex2 Valval swab, ex3 Vaginal swab, ex4 Perianal swab, ex5 Nail clippings and ex6 Public hair of victim".

13. Prosecution has examined PW 3 - Dr. Abhijit Bagul, who states that he was a partner in Lotus Hospital. He further states that along with him, Dr. Nimish Chemburkar and Dr. Amit Dhankee were the other partners. He further states that the appellant was working in the hospital as R.M.O. since about 8 to 9 months prior to the incident. On the day of the incident, the duty hours of the appellant were from 10 p.m. to 9 a.m. He states that PW 2 - victim was admitted in the hospital and thereafter was shifted to the I.C.U. as she was complaining of breathlessness. She was being treated by PW 7 - Dr. Tadvi. He further states that on 17/10/2010 in between 7.30 a.m. to 8 a.m. he had received a telephone call from the appellant, who requested him to come to the hospital immediately. PW 3 - Dr. Bagul, therefore, proceeded to the hospital and had also telephoned the other partners to come to the hospital. On reaching the hospital, the husband of PW 2 - victim met him. He states that the appellant was assaulted. He also admits that he learnt about the incident of rape from the husband of PW 2 - victim. Since a crowd had assembled in front of the hospital, he telephoned the Vashi Police Station and the police officers of the Vashi Police Station came to the hospital. He states that he was asked to ascertain the condition of PW 2 - victim and accordingly, he endorsed on the letter at Exh. 39 that the victim was fully conscious and was able to give her statement. He further states that after recording the statement of PW 2 - victim, his endorsement was also taken, which he has identified at Exh. 40. In cross-examination on behalf of the appellant he has admitted that there are three beds in the I.C.U. He states that including PW 2 - victim, two patients had been admitted in the hospital. The name of other patient was Swapnil Waghmare, whose condition was very critical. He states that the R.M.O. is required to maintain the TPR chart i.e. Temperature, Pulse and Respiration every hour. He states that normally this is done every hour. He has identified the medical case papers at Exh. 41 as the case papers maintained in the Lotus Hospital. He has admitted that all the patients in the I.C.U. are connected to the monitors and monitors give the continuous reading about pulse rate, blood pressure and oxygen saturation and some monitors also show the respiratory rate. He has identified the medical papers of Swapnil Waghmare at Exh. 37. He has also identified the medical case papers of Swapnil Waghmare at Exh. 42. Upon perusal of the medical case papers, he has admitted that Swapnil Waghmare had passed 100 ml urine at 3 a.m. on 17/10/2010. He has also admitted that said Swapnil Waghmare was suffering from cancer and his condition was critical and, therefore, one or two relatives are permitted to stay in the hospital. He has admitted that the mob had assaulted him as well as the appellant. He has further admitted that the wall of the I.C.U. is partly of glass and the glasses are transparent and one can see from outside as well as from inside. He has denied the suggestion that he had not learnt anything about the incident of rape. He has further admitted as true that the appellant had informed him that the monitor wire of PW 2 - victim was disconnected and, therefore, he had connected the wire again.

14. Prosecution has also examined PW 7 - Dr. Tadvi, who states that he was attached to the Lotus Hospital on 16/10/2010 as a General Physician. While he was leaving the hospital, he was informed by Dr. Chemburkar that one lady patient was kept under observation in the O.P.D. as she had complained of giddiness at Durga Puja pendol. Dr. Chemburkar requested Dr. Tadvi to examine the said lady patient. Accordingly, PW 7 - Dr. Tadvi had a dialogue with lady patient as well as the husband and the other relatives of the patient. He, thereafter, requested the husband of the patient to see him in the O.P.D. on Monday and gave his visiting card. At about 11 to 11.30 p.m. he received a telephone call from the appellant, who informed him that the lady patient, after she was discharged from the O.P.D. had an attack of breathlessness and, therefore, was admitted in the I.C.U. The appellant also informed Dr. Tadvi that he had injected an injection of Derriphyline and another injection Effcorlin and he was monitoring her and requested Dr. Tadvi to come to the Lotus Hospital in the morning. Dr. Tadvi states that thereafter he learnt about the incident. He has identified Exh.41 which are the medical case papers and states that the appellant had given the treatment to PW 2 - victim. He then states that injection Mezolam is a short acting sedative. He has clarified that a short acting sedative means the period between sleep and complete anesthesia. He has further stated that depending upon the dose, the condition of the patient varies. He has admitted that he had not prescribed any of the injections to the said patient. He then states that for breathlessness, it was not necessary to inject Mezolam. In cross-examination on behalf of the appellant, he has admitted that there was no documentary evidence to show that he had examined the victim at 9.30 p.m. He has admitted that he had left the hospital at about 10 p.m. He has admitted as correct that the R.M.O. is not supposed to admit the patient directly in the I.C.U. and is required to consult an expert before prescribing any medicine. He has admitted as correct that Mezolam (Medazolam) is not a banned drug and is available with the chemist. He has admitted as correct that in case of anxiety, Mezolam can be prescribed. The witness, however, volunteered that if the parameters are normal. He has admitted as correct that the effect of Mezolam remains hardly for 10 minutes. He has further clarified in the cross-examination that a short acting sedative means the period between sleep and complete anesthesia and it is hardly for 10 minutes. He has further admitted that from the medical case papers of PW 2 - victim, he could state that the victim was under short acting sedative for 10 minutes. He has denied the suggestion that the appellant had informed him on mobile that there was anxiety and breathlessness of the victim.

15. The appellant was examined by PW 9 - Dr. Hanmitsingh Sahani, who states that he had noticed contusion on the left temporal region 2x2 cm and irregular nail marks on the cheek. In cross-examination he has admitted that there was no mating of pubic hair or a foreion hair was found. He has admitted as correct that if a person indulges in sexual intercourse for 2 to 2 ½ hours continuously, there may be injuries. He has admitted as correct that on the basis of medical examination, there was no conclusive evidence that sexual intercourse had been done.

16. Mr. Sejpal, learned counsel for the appellant has urged before us that it is inconceivable that the appellant would indulge in forcible sexual intercourse in the I.C.U., particularly when the other patient, Swapnil Waghmare, was sleeping on the adjoining bed. The learned counsel for the appellant has further urged before us that the version of PW 2 - victim that the incident lasted for 2 ½ hours is itself unbelievable and the medical evidence does not corroborate the version of the prosecutrix. It is also urged before us by the learned counsel for the appellant that curiously if the appellant had performed forcible sexual intercourse, there would be marks of resistance/injuries on the person of the victim. The medical evidence clearly indicates that no external injuries were noticed. It is further urged before us that since the hourly temperature, blood pressure and other parameters were being monitored by PW 10 - Indira, the version of the prosecutrix appears to be extremely doubtful. Lastly, it is urged before us that when the victim was examined by PW 4 - Dr. Sachin Ajmera, the victim had admitted that she did not remember if the appellant had performed sexual intercourse with her. It is, therefore, urged before us that the evidence of the prosecution is completely unbelievable and the appellant would, therefore, be entitled to be given the benefit of doubt. The learned APP and the learned counsel representing the complainant have urged before us that the victim could not offer any resistance on account of the fact that the victim was sedative and was drowsy. Absence of any injuries on the person of the victim would not necessarily indicate that the victim had consented for the sexual intercourse. In any event, it is urged by the learned counsel for the State and the complainant that corroboration in law is not necessary to the evidence of the prosecutrix, if her evidence has a ring of truth.

17. With the assistance of the learned counsel for the appellant, we have carefully perused the evidence of the prosecution witnesses. The immediate conduct of PW 2 - victim in informing her husband PW 6 - Narayan about the incident certainly lends great assurance to the testimony of PW 2 - victim. The accused / appellant has not been able to bring on record any animosity or any grudge or ill-feeling which could have prompted PW 2 - victim and her husband PW 6 - Narayan to level false accusation against the appellant. The victim in clear terms has admitted that she was drowsy. The fact that she was drowsy can certainly be attributed to the short acting sedative mezolam, which had been injected. Though effect of mezolam was for 10 minutes, yet since it was a sedative, it would certainly make the patient, who had been injected with that drug, drowsy. There is nothing in the cross-examination which would even remotely indicate that the statement of PW 2 - victim that she was drowsy, is incorrect. In fact, the suggestions in the cross-examination go to the extent of suggesting it to the victim that she was even drowsy when her complaint was being recorded by the police. If the victim was indeed drowsy, we find it inconceivable to expect the victim to offer any resistance. In fact, the victim has stated that she was being shaken awake by the appellant while the appellant was fondling her body. The overture, especially the overture which the appellant is alleged to have expressed, clearly indicated that the appellant had a lust for the victim. According to us, therefore, absence of any marks, indicating struggle or resistance, would not necessarily mean either that the victim had consented for sexual intercourse or that no sexual intercourse had been committed. The drowsiness of the victim is a clear pointer to the fact that she was physically incapable to offer any resistance to the appellant in the commission of forcible sexual intercourse. Since the victim was drowsy and, therefore, incapable of offering any resistance, the passive submission of the victim cannot be construed as consent. PW 6 - Narayan has clearly said that when he met his wife PW 2 - victim in the morning the first thing that the victim had asked him was, as to why he had not come to see her during the night and thereafter had narrated the incident of rape. The immediate re-action of the victim clearly speaks volumes about the truthfulness of the claim made by the victim.

18. The other patient in the I.C.U., namely, Swapnil Waghmare, was suffering from cancer and was critical. There is nothing on record that he was awake and had not been sedative. In such circumstances, presence of the other patient, Swapnil Waghmare in the I.C.U. would not in any manner affect the credibility of the evidence of the victim that she had been ravished in the I.C.U. by the appellant. The victim in clear terms has admitted that the curtains around her bed was drawn by the appellant, thus obscuring the vision of anyone who was standing outside the glass partition. Because of the drawing of the curtains, any person standing outside the glass partition would not be in a position to see as to what was going on in the I.C.U.

19. PW 10-Indira has clearly indicated that since she was suffering from asthma, she had retired to the deluxe room for resting and the appellant had then closed the door of the I.C.U. She has clearly admitted that the readings were taken by her on the next day at 5.30 in the morning. She also admits about the arrival of the husband of the prosecutrix and the prosecutrix informing her husband about an incident. Thus, according to us, the evidence of the victim clearly has a ring of truth. It would be adding insult to injury to expect that the evidence of the victim should be corroborated in material particulars like that of an accomplice. Though the medical evidence does not assist the prosecution case, for the reasons stated above, according to us, the absence of corroboration from the medical evidence would not be fatal to the prosecution case. The credibility of the victim is not affected on account of absence of corroboration. The victim does not, in any manner, said that the accused had performed sexual intercourse for two and half hours. If the evidence of PW 2 - victim is perused, she has admitted that incident, which commenced at 2.30 a.m. lasted for 2 to 2 ½ hours i.e. till 5 a.m. In any event, since the victim was drowsy, her perception of time would be only by approximation and any exaggeration in stating the time would not necessarily mean that the appellant had performed the forcible sexual intercourse for 2 to 2 ½ hours. According to us, therefore, the approximate time of the incident stated by the victim i.e. the duration of the incident of 2 to 2 ½ hours, though appear to be incredulous, would not materially affect the credibility of PW 2 - victim. The duration of the incident would not in any manner whittled down the evidence of the prosecutrix that she had been ravished by the appellant. The duration, as stated by her, obviously, would be affected by her mental state as she was drowsy. It is true that the victim, when on being examined by PW 4 - Dr. Sachin Ajmera, has stated that she could not remember if the appellant had performed sexual intercourse with her. The aforesaid history as disclosed by the victim is reflected in the certificate at Exh. 48 and is also reiterated by PW 4 - Dr. Sachin Ajmera. According to us, however, the aforesaid disclosure of PW 2 - victim that she did not remember if the appellant had performed sexual intercourse with her would not assist the defence in any manner. Prior to her being examined by PW 4 - Dr. Sachin Ajmera, she had clearly disclosed the incident to her husband PW 6 - Narayan and her FIR has been scribed. In the narration to her husband as well as in the recitals of the FIR, she had clearly stated that the appellant had performed sexual intercourse. In the light of the earliest disclosure, which was made by the victim to her husband, PW 6 - Narayan, according to us, the history narrated by her to PW 4 - Sachin Ajmera would in no manner affect her credibility.

20. The learned counsel for the appellant has also urged before us that PW 1 - Bansi, a witness to the scene of the incident panchanama as well as to the seizure memo of clothes of the victim, was a friend of PW 6 - Narayan, as has been admitted by PW 2 - victim. It is further urged before us that PW 1 - Bansi had engineered the assembling of the mob in front of the Lotus Hospital and the mob in turn had ransacked the hospital. It is urged before us that PW 6 - Narayan has admitted that no payment for the treatment was made by him.

21. According to us, the acquaintance of PW 1 - Bansi with PW 6 - Narayan does not in any manner led to an inference that in order to avoid making payment of the hospital dues, a false accusation has been levelled against the appellant. In fact, the assembling of the mob in front of the hospital and the ransacking of the hospital, though lamentable, strengthens the prosecution case about the indignation expressed by PW 6 - Narayan regarding the conduct and behaviour of the appellant in committing forcible sexual intercourse with his wife, PW 2 - victim.

22. The learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in Sadashiv Ramrao Hadbe vs. State of Maharashtra and anr. [(2007) 1 SCC (Cri) 161]. In the said case before the Supreme Court, the Supreme Court found that the version of the prosecutrix was unsupported by the medical evidence and the surrounding circumstances belie the case set up by her. The prosecutrix had alleged that the appellant before the Supreme Court had committed rape on her in his Clinic. The Supreme Court found that there were many persons in the Clinic and it was highly improbable that the accused would have sexually assaulted the prosecutrix when the other patients were present in the near vicinity. The Supreme Court also found that absence of injuries on the body of prosecutrix improbabilise the prosecution case. The other circumstantial evidence in respect of absence of spermatozoa in the vaginal swab negatived the case of the prosecution.

23. The ratio of the aforesaid judgment, in our opinion, would be inapplicable to the facts of the present case. In the present case, the appellant is alleged to have performed forcible sexual intercourse in the wee hours in the morning i.e. between 2.30 a.m. to 5 a.m. In the present case the victim was drowsy and, therefore, was unable to offer effective resistance. The victim does not allege that the appellant had performed a complete sexual intercourse in as much as the victim does not state that there was a discharge of semen and consequently absence of spermatozoa in the vaginal swab would not belie the prosecution case.

24. The learned counsel for the appellant has also placed reliance on the judgments of the Supreme Court in Sudhansu Sekhar Sahoo vs. State of Orissa [(2002) 10 SCC 743] : [2003 ALL MR (Cri) 2387 (S.C.)], Radhu vs. State of Madhya Pradesh [(2008) 2 SCC (Cri) 207] : [2007 ALL SCR 2713], Rai Sandeep alias Deepu vs. State (NCT of Delhi) [(2012) 3 SCC (Cri) 750] : [2012 ALL MR (Cri) 3038 (S.C.)] and Dilip and another vs. State of M.P. [(2001) 9 SCC 452] : [2001 ALL MR (Cri) 2377 (S.C.)] to urge before us that though it is true that a conviction could be based on the testimony of the prosecutrix, yet the rule of prudence required that the evidence of the prosecution should be corroborative. It is, therefore, urged by the learned counsel for the appellant, relying on the ratio of the aforesaid judgments, that in the absence of any corroborative evidence, particularly the medical evidence, the conviction of the appellant is unsustainable. According to us, the ratio of the aforesaid judgments would not be applicable to the facts of the present case for the reasons stated above.

25. The learned APP has referred to the judgment of the Supreme Court in State of Maharashtra vs. Chandraprakash Kewalchand Jain [AIR 1990 SC 658]. The Supreme Court in the said judgment has held that the prosecutrix of a sex offence cannot be put on par with that of accomplice as she was in fact a victim of the crime. Her evidence, therefore, has to be appreciated like the evidence of an injured witness.

26. In the present case, we found that the evidence of PW 2 - victim has a ring of truth. Despite being subjected to lengthy cross-examination, nothing has been elicited in her cross-examination, which would in any manner affect her credibility. The evidence of the victim is further corroborated by immediate disclosure made by the victim to her husband PW 6 - Narayan. Though the medical evidence indicates that the victim had not sustained any injury, we find that the evidence of PW 2 - victim certainly inspires confidence of the court and can be acted upon, without there being any corroboration. We find it inexplicable that a victim would make false accusation against the appellant, if indeed the appellant had not indulged in the forcible sexual intercourse. There was hardly any time for the victim to have concocted a false case against the appellant as immediately at about 7 a.m. she had disclosed to her husband about the forcible sexual intercourse. We, therefore, find that the reliance placed by the trial court on the testimony of the prosecutrix cannot be said to be misplaced. The evidence of the prosecution certainly establishes the offence against the appellant beyond reasonable doubt. The appeal, in our opinion, therefore, deserves to be dismissed.

27. Accordingly, we dismiss this appeal, confirming the conviction and sentence of the appellant.

Appeal dismissed.