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COMMITTED ON: 19.09.2013 RECEIVED ON
: 21.09.2013
DECIDED ON
: 04.04.2014
DURATION
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IN THE COURT OF PRINCIPAL SESSIONS JUDGE GR. BOMBAY AT AT : BOMBAY BOMBAY (PRESIDED OVER BY DR. MRS. SHALINI S. PHANSALKAR-JOSHI) EXH. No.269 SESSIONS CASE NO.846 OF 2013
Shri Ujjwal Nikam Special Public Prosec Prosecuto utorr
The State of Maharashtra ( Th Through DCB, CID, Unit-III, Mumbai) C.R.N C.R.No. o.83/ 83/201 2013. 3. (N.M.Joshi Marg Police Station C.R.No.244/2013) C.R.No.244/2013) C.C.No.734/PW/2013 ..... COMPLAINANT. VERSUS
Shri Prakash J. Salsingikar with Shri Keshav S. Chavan Advocates
1) Vijay Mohan Jadhav @ Nanu Age : 18 years, r/o r/o Indira dira Naga agar, Next to Agnidoot Building Lane, Dhobighat, Satrasta, Mumbai. Mumbai.
Shri Prakash J. Salsingika Salsingikarr with Shri Keshav S. Chavan Advocates
2) Siraj Rehmat Rehmat Khan @ Sirju, Age : 24 years, years, r/o. Saibaba Nagar, "B" Committee, Dhobighat, Satrasta, Mumbai. Mumbai.
Shri Ravindra G. Gadgil, Advocate
3) Mohd. Kasim Mohd Hasim Hasim Shaikh @ Bangali Bangali Age : 20 years. r/o. Zopda No.118, No.118,
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opp. Bharat Petrol Pump, Maulana Azad Road, Kalapani, Agripada, Mumbai. Shri Moin A. Khan A. Khan
4) Mohd. Salim Mohd. Abdul Kaddus Ansari Age : 27 years. r/o. Vishnu Nagar, Building No.R/2, 3rd floor, Room No.307, Near Datta Mandir, Mandir, Mahul Village, Vashi Naka, Mumbai -74 ...... ACCUSED -----ooooo------
OFFENCES OFFENCES PUNISHAB PUNISHABLE LE UNDER UNDER SECTIONS SECTIONS 120-B,376( 120-B,376(D), D), 377, 354(A)(iii), 354(B), 341,342, 323, 506(II), 201 r/w 120-B, 376(E) of I.P.C.,SEC.67 OF THE INFORMATION TECHNOLOGY ACT r/w 120-B OF I.P.C., JUDGMENT : (ORAL) (Dated 4th April, 2014) 1.
On Thursday 22 22nd Au August, 20 2013 Mu Mumbai ci city along wi with en entire
nation was shocked once again. This time attack on Mumbai was not by any terr terror oris istt or by Bo Bomb mb Blas Blastt but but it was was atta attack ck on Mumba umbai' i'ss coll collec ecti tive ve cons consci cienc ence e as on one e youn young g inte intern rn Phot Photoj ojou ourna rnali list st wo worki rking ng in a En Engl glis ish h Magazine was sexually ravished and subjected to gruesome incident of gang rape, that too in the heart of the city by five unknown young men of this very city. city. This incident has happened after new Criminal Law (Amendment) Act, Act, 2013 came into effect on 03.02.2013 after the equally shocking incident of Delhi gang rape. Hence the questions relating to safety of women were
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raised once again. The Mumbai Police Machinery swung into action swiftly. The courageous stand of victim girl of reporting the incident to the police giving all the details of the incident and culprits, the support she received from her mother, her colleagues and every section of the society, helped the police to nab all the accused within a day or two. The prompt and swift investigation by the police enabled them to file charge-sheet in the Court against all the five accused within less than a month.
2.
On committal of the case to th this Court, these four ac accused ar are
facing facing trial for the offences offences punishable under newly amended provisions provisions of Section 376(D) for gang rape, Section Section 377 for unnatural sex, sex, Section 354(B) for disrobing, disrobing, Section 120-B for criminal conspiracy conspiracy,, Sections 341 and 342 for wrongful restraint and wrongful confinement, Section 323 for voluntary causing hurt and Sec.506(II) for criminal intimidation r/w. Section 120-B of I.P.C. along with Section 67 of The Information Technology Act, 2000.
3.
The fa factual ma matrix of of th the pr prosecution ca case de depicts th the un untold
trauma and agony of the victim girl, which can be stated in brief as follows:The victim in this case (name withheld and hereinafter referred to as 'prosecutrix') has, after achieving Bachelor degree and completing one year Diploma course in Social Media Communication from Sofia College,
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joined the service in Time Out Magazine of Essar Group as Intern Photojourna Photojo urnalist list in June 2013. Her colleague P.W P.W.17 .17 Anurag who was working in the the same same depart departme ment nt has has floa floated ted an idea idea to prep prepar are e artic article le on the dilapidated and deserted premises and old articles in the city of Mumbai. This idea was approved by their superior Officer P.W.5 Tejal, as according to her in Time Out Magazine they wanted to look at the city in a more interesting way and to cover those facets of the city which are otherwise unnoticed and unattended.
4.
As part of the said project P.W.17-Anurag did the photo-shoot of
an old shed at Lower Parel, an Ambassador car at Grant Road Station and one old Scooter Scooter at Bandra Bandra Chapel Road. Road. Therea Thereafte fterr he wanted wanted to do the photo-shoot of old and neglected premises of Shakti Mill. The prosecutrix expressed her desire to assist him in the said photo shoot and accordingly on that fateful day on 22.8.2013 22.8.2013 at about 5.00 p.m. p.m. after informing P.W P.W.5 .5 Tejal, both P.W.17 .W.17 Anurag Anurag with his Nikon Nikon Digital Digital Camera Camera and prosecutrix prosecutrix with her I-phone left for photo-shoot of Shakti Mill premises. They selected the way from Mahalaxmi Railway Station as that was the only way they were knowing.
5.
When th they reached ne near th the pr premises of of Shakti Mi Mill, they came
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across across the dilapidated dilapidated wall and hence hence they could not find a place to enter. enter. At that time, two persons came out of the Mill and they assured them that there there is a way way to go insi inside de the Mill. Mill. Thos Those e two two perso persons ns waited waited till the prosecutrix prosecutrix and P.W.17 .W.17 Anurag Anurag went inside. inside. Once inside, inside, prosecutrix prosecutrix and Anurag started taking the photographs moving around the premises of Shakti Mill. Then they came at the end of premises where there was a window from which they could see the cars and people passing outside on the road. Hence they decided to come out.
6.
By that time, those two persons, who had showed them the way
and who are later identified as accused No.1 Vijay Jadhav and accused No.4 Mohd. Salim, came there again with the third person, later identified as accused No.3 No.3 Mohd. Kasim. Kasim. Accused No.3 No.3 Kasim told them that their Seth had seen them entering entering the premises premises and therefore therefore,, both P.W P.W.17.17- Anurag and prosecutrix had to go to meet their Seth. When the prosecutrix made inquiry as to who was their Seth and whether she can talk with their Seth on mobi mobile le,, accu accuse sed d No.3 Moh ohd. d. Ka Kasi sim m repl replie ied d that that his his Seth Seth was was a Seni Senior or Railway Officer Officer and she cannot speak with with him on mobile. mobile. He insisted that she should accompany them to his Seth. Hence she called called her boss Tejal Tejal on her mobile phone but she did not pick up. Accused No.3 No.3 Mohd.Kasim then insisted insisted that they should follow follow them from the same same way from which which they
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had entered in the premises. She and her colleague Anurag trusted the accused persons and started walking with them. On the way she got call from her boss Tejal and she told her that Railway persons have accosted them. P.W P.W.5-T .5-Tejal ejal told Anurag Anurag and the prosecutrix prosecutrix to apologize apologize to those persons persons and leave as early as possible possible and come to the office. office. Accordin Accordingly gly,, the prosecutrix and Anurag requested the accused to let them go out but they refused saying that they will allow them to go once they meet their Seth.
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It wa was ar around 6. 6.00 p. p.m.
On th the wa way th the ac accused No No.3
Mohd.Kasim called two persons saying that, “ Yaha aao, shikar aaya hai”. Two persons then came there, who are later identified by prosecutrix and Anurag as accused No No.2 .2 Siraj and juvenile-in-conflict-with-law Chand. On the way the accused tried to terrorize Anurag by saying that he was the same person who had committed murder at that place some days back. Both the prosecutrix and Anurag were shocked and requested the accused persons to let them go in lieu of taking her mobile and his Camera but the accused did not accept accept the offer. Accused Accused No No.3 .3 Moh Mohd.Kasi d.Kasim m then removed removed his belt and hit Anurag with that belt. He tied Anurag’s hands behind his back with that belt. When Anurag tried to wriggle out his hands, accused No.3-Mohd.Kasim No.3-Mohd.Kasim tied his hands again with his belt and the belt of the prosecutrix.
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8.
As per prosecution case, accused No.3 Mohd. Kasim and
accused No.4 Mohd. Salim then dragged the prosecutrix to one dilapidated room. There one after another all the 5 accused, namely 4 herein and the juvenile-in-conflict-with-law,, subjected the prosecutrix to brutal rape and juvenile-in-conflict-with-law both natural and unnatural sex. Her photographs were also taken on the mobile and she was threatened that if she disclosed disclosed the incident to anyone, her photog photograp raphs hs will will be circul circulated ated and and publishe published. d.
After After their their lust lust was
satisfied, they brought her back to the place where P.W P.W.17-Anurag .17-Anurag was held up. They again threatened both Anurag and prosecutrix and brought them upto the entrance of Shakti Mill from where they had come. After waiting to see that no goods trains were there, they told them to go towards Mahalaxmi Railway Station and all those five accused persons went towards Lower Parel Railway Station.
9.
As pe per pr prosecution ca case, as as on on th the wa way pr prosecutrix wa was cr cr ying,
on inquiry by Anurag, Anurag, she informed informed him about the incident. incident. Anurag then then called their boss Tejal on mobile and requested her to come to Mahalaxmi. P.W.17-Anurag and prosecutrix took the cab and proceeded towards Jaslok Hospi Hospital tal.. On the way they picked picked up Teja Tejall and her collea colleague gue Yash Yashasv asvi. i. Prosecutrix’s mother, who was anxious, was also informed on phone to come immediately to Jaslok hospital.
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10.
In Ja Jaslok Ho Hospital pr prosecutrix rix was ta taken to to th the Ca Casualty Me Medical
Ward Ward where P.W.40 .W.40 Dr. Dr. Ms. Nisha Singh who was on duty immediately informe informed d P.W.39 .W.39 Dr. Dr. Asmita Asmita Patki, atki, Gynec Gynecolog ologist ist workin working g therei therein. n. The prosecutrix prosecutrix was complaini complaining ng of bleeding bleeding and pain in her private part. On examination by Dr. Dr. Asmita Patki and by Dr. Poornima Poornima Satoskar, it was found that there were severe injuries on her private part including vagina and anus and also on the other parts of her body. Hence she was shifted to ICU. Meanwhile prosecutrix’s mother has also reached there and was mentally shocked to know about the incident of gang rape on the prosecutrix. P.W.40 .W.40 Dr. Ms.Nisha Singh simultaneously made a phone call to N.M.Joshi Marg Polic olice e Stati Station on.. P.W.4 .W.411-P P.S.I. .S.I. Sham Shamra rao o Patil atil who who was was on phon phone e gave gave information to P.W.43 .W.43 P.I.Shri Arun Mane, the Senior Police Officer. It was 8.40 p.m.
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P.W.41 P. P.S.I. .I.Patil an and P. P.W.43 P. P.I. Ma Mane the then n imm immedi ediate ately rus rushed
to the Jaslok Hospital. There they met P.W P.W.40 .40 Dr. Nisha and verified whether prosecutrix was in a position to give the statement. As it was found that she can give the statement, statement, P.W.38 .W.38 WPSI Mhatre Mhatre attached attached to Atrocities Atrocities Against Women Women Cell was called for. She reached to the Jaslok Hospital at about 9.20 p.m. and within 10 minutes thereafter P.S.I. Shamrao Patil and WPSI Mhatre started recording the statement of the prosecutrix, which was completed on
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11.40 p.m. Then on phone the recording of complaint was informed and the crime was registered at N. M. Joshi Marg Police Station at 23.45 hours vide C.R.No.244/13 for the various offences punishable under Sections 376-D, 341, 342, 506(II) r/w 34 IPC.
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In th t he Ja Jaslok Ho Hospital cl clothes of o f th t he pro prosecutrix we were se s eized
under Panchanam Panchanama, a, which was completed completed at about 1.00 a.m. P.W.41 .W.41 P.S.I Shamrao Shamrao Patil then returned to Police Police Station, filled up printed form of FIR along with with WPSI Mhatre Mhatre who who signed signed on it and on 23.8.201 23.8.2013 3 itself itself FIR was was sent to the Magistrate. He deposited clothes of the prosecutrix and made entry in Muddemal Register and further investigation was thereafter taken over ove r by P.W.43 P.I. .I . Man Mane. e.
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After ma making ar arrangement fo for se sending th the st staff fo for pr protecting
the spot of incident, incident, P.W.43 .W.43 P.I. Mane recorded recorded the statement statement of P.W.-17 .W.-17 Anurag at about 1.00 a.m. in Jaslok Hospital. On the basis of description given by Anurag, two artists by Name Nitin Yadav and Siddique Shaikh were called for who drew the sketches of the five suspects, in the night. P.W.-43 P.I. Mane showed those sketches to the secret informants who were called for. One One of the the secre secrett info inform rman ants ts iden identi tifi fied ed the sketc sketch h of the juve juveni nile le-i -innconflict-with-law and police team was sent for taking his search.
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14.
At ab a bout 6. 6 .30 a. a.m. al a long wi with th the te team fr from F. F.S.L., th t he do d og
squad and P.W.17 .W.17 Anurag, Anurag, P.W.-43 .W.-43 P.I. Mane went to Shakti Shakti Mill where Anurag showed the spot of incident and in presence of two panchas the articles lying on the spot, like black piece of cloth used for wiping the lenses, which was identified by Anurag as belonging to him and lying at the place where he was tied, one pink colour Odhani with soil below the Odhani, the neck neck porti portion on of the the broke broken n glas glasss beer beer bottl bottle, e, with with whic which h Anur Anurag ag was was threatened during the incident by accused No.3 Mohd. Kasim, were seized in presence of panchas. Photographs of the spots, as shown by Anurag, were taken taken by profess profession ional al photog photograp rapher her.. Spot Spot Panchana anchanama ma was accord according ingly ly made in between 6.30. a.m. to 9.20 a.m.
15.
On th the sa same da day at at ab about 1. 1.30 p. p.m. as as pe per di directions of of P. P.I.
Mane, P.S.I. P.S.I. Shamrao Patil went to Jaslok Hospital along with P.W.15 .W.15 P.C. Suhas Suhas Kagink Kaginkar ar and collec collected ted medical medical sample sampless of the prosec prosecutri utrixx from from Dr.Asmita Patki. There were totally 9 sealed samples containing the vaginal swab and anus swab. They were were handed over to F.S.L. F.S.L. on the same day along with forwarding letter. letter.
16.
After sp spot Pa Panchanama, wh when P.I. Ma Mane an and ot other st staff re returne rned
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to the police police station, station, at about 11.00 11.00 a.m. a.m. Agripad Agripada a Polic Police e Statio Station n team team produced juvenile-in-conflict-with-law Chand. As the sketch prepared by the artist was matching with him, after making inquiry with him, he was arrested under Panchanama. In his interrogation the names of these four accused were transpired. Hence search teams were sent for the arrest of these these accuse accused. d. On that day they were not found. found. In the evening evening P.W P.W.13 .13 Sandeep Gurav has produced the photographs of the spot of incident.
17.
On th the ne next da day on on 2 24 4.8.2013 Cr Crime Br Branch Un Unit-II pr produced
the accused No.1 Vijay Jadhav Jadhav in Police Station. Both accused No.1-Vijay and juvenile-in-conflict-with-law,, Chand were remanded to police custody till juvenile-in-conflict-with-law 30.8.2013. 30.8.2 013. P.W.43 .W.43 P.I. P.I. Mane then t hen recorded the statements statem ents of P.W P.W.39 .39 Dr.Asmita Patki, P.W P.W.5 .5 Tejal, Tejal, P.W.36 .W.36 Aakash A akash Swamy and other witnesses witness es on o n the th e very ve ry day.
18.
In the night on the same day Officers from Dadar Police Station
produced accused No.2 Siraj after arresting him from Mumbra. He was taken into custody. Thereafter further investigation of the case was handed over to Crime Branch Unit -III.
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On 25 25.8.2013, in i nvestigation of th this off offence was was ta t aken ov over by by
P.W.-44 P.I. Manohar Dhanawade. At their Unit the offence was registered as
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DCB CID Unit-III, C.R.No.83/13. He formed two search teams for arresting wanted accused Mohd.Kasim. Bangali Bangali and Salim Ansari. On the same day he also collected collected medical medical certificate certificate of P.W.-17 .W.-17 Anurag Anurag from Jaslok Jaslok Hospital Hospital,, recorded the statements of the prosecutrix’s prosecutrix’s mother, P.W P.W.-15 .-15 P.C. Subhash Kaginkar, Kagi nkar, P.W.16 .W.16 API Sunil Rasal, Rasal , P.W.32 .W.32 P.I. P.I. Sunil Pawar and others. oth ers.
20.
On 25 25.8.2 8.2013 it itself P.W.9 A. A.P.I. Tavade of of Cri Crim me Br Branch, Unit-I t-III
arrested arrested accused accused No No.3 .3 Moh Mohd. d. Kasim Kasim whereas whereas P.W.11 .W.11 P.I. Gulabrao Gulabrao Mo More re brought accused No.4 Mohd. Salim from Delhi and produced them before P.W.44 P.I. Dhanawade. During the police custody, at the instance of accused No.3 No .3 Mohd. Kasim, mobile used in the commission of the offence was seized on 29.08.2013 whereas at the time of arrest of the accused No.4 Mohd.Salim, the mobile phone in his possession and used in the commission of the offence was seized under Panchanama.
21.
On 26 26.8.2013 P. P.I. Dh Dhanawade se sent th the Mu Muddemal Ar Articles li like
clothes of the prosecutrix, the clothes of the juvenile-in-conflict-with-law and the articles recovered from the spot of incident to C.A. On the same day he also sent letters to Nodal Officers of Aircel, Tata Teleservices, Vodafone and Reliance companies calling for the Call Detail Records of the mobiles of prosecutrix, witnesses and of the mobiles recovered at the instance of the
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accuse accused. d. On 27.8.20 27.8.2013, 13, he sent all the five accused accused to Nagpada Nagpada Polic Police e Hospital for collecting their blood samples for DNA and sent those samples to F.S.L. On that day Nodal Officer Mr.Sunil Tiwari from Aircel and Nodal Officer Mr. Rajesh Gaikwad from Reliance company produced Call Detail Records and their statements were recorded.
22.
On 28.8.2013 a le letter wa was given to th the pr prosecutrix calling her fo for
test identification parade. However, her mother informed that prosecutrix was unwell and hence test identification parade was requested to be held in next week. week. On 28.8.2013 28.8.2013 P.W.21 .W.21 ASI Kolambk Kolambkar ar collected collected shoes shoes and two medical samples of prosecutrix from Jaslok Hospital and carried them to F.S.L.
23.
On 29 29.8.2013, st statements of of No Nodal Of Officer Sh Shri Ba Baby Jo John fr from
Tata Cellular Cellular company company and two other witnesses, witnesses, namely P.W P.W.-35 .-35 Samsher Samsher Shaikh and P.W.8 .W.8 Ravi Dandagule were recorded. On 30.8.2013, prosecutrix was sent to Nagpada Police Hospital for collecting her blood samples for DNA. On 2.9.13 the letter was sent to the prosecutrix calling her for test ident identif ific icat ation ion para parade de of the the accu accuse sed. d. On the the same same day day the the belt belt of the the prosecutrix and the clothes of the accused were sent to C.A. along with mobiles seized from the accused. P.W P.W.27 .27 Nodal Officer Mr. Mr. Changdev Godse
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from Vodafone produced the Call Detail Record and hence his statement came to be recorded.
24.
On 5.9.2013 permission of the court was obtained for test
identification parade of four accused and test identification parade was conducted at Byculla jail in which both the prosecutrix and P.W.17 Anurag identi identifie fied d all the four four accuse accused. d. A separat separate e test test identi identific ficati ation on parade parade of juvenile-in-conflict-with-law was conducted at Children Home in Dongri where he was also identified by the prosecutrix and witness Anurag.
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On 7 7..9.2013 a le letter wa was se sent to to th the pr prosecutrix fo for re recording of of
her statemen statementt u/s.16 u/s.164(5 4(5)) of Cr.P Cr.P.C. but request request was made made to record record her statement statement at her house and accordingl accordingly y, on 12.9.2013 12.9.2013 her statement statement u/s. 164(5) of Cr.P.C. came to be recorded by the Metropolitan Magistrate at her house. house. On 11.9.2013 11.9.2013 her mobile came to be seized under under Panchanama Panchanama at her house.
26.
On 14.9.2013 the medical certificate of the prosecutrix was
coll collec ected ted from from the the Jaslo aslok k Hos ospit pital al along along with with fina finall op opin inion ion whic which h was was rece receiv ived ed on 16 16.9 .9.2 .201 013. 3. The The map map of the the spot spot of inci incide dent nt was was draw drawn n by Interior Designer P.W.1 Sandeep Kanvinde on 14.9.2013.
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27.
From time to time thereafter C.A. reports were collected,
statements of other witnesses were recorded and after completion of entire investigation, within one month the charge-sheet of 600 pages came to be filed on 19.9.2013 in the Court of Additional Chief Metropolitan Magistrate, 37th 37 th Co Court urt,, Espl Esplan anad ade, e, Mumba umbai. i. On the the very very day day afte afterr comp compli lianc ance e of Section 207 of Cr.P.C., Learned Metropolitan Magistrate committed the case to this this Court, Court, the offenc offences es u/s.37 u/s.376(D 6(D)) and 377 of I.P.C. being being exclus exclusive ively ly triable by the Sessions Court. A separate charge-sheet came to be filed against the juvenile-in-conflict-with-law in Juvenile Justice Justice Board.
28.
Accused were produced before me on 23.9.2013 and after
hearing hearing Learned Learned Spl.P Spl.P.P. and the Learned Learned Counse Counsels ls for the accuse accused d on 11.10.2013, I have framed charge against these four accused, as per Exh.12. Charge was read over and explained to the accused. All the accused have abjure abjured d the guilt guilt and claimed claimed to be tried. tried. Their Their defence defence is of simplici simplicitor tor denial and false implication at the behest of pressure from media and Senior Police Officers.
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On these facts of the case, following points arise from my my
determi determinati nation on and I recor record d my findin findings gs thereo thereon n for the reason reasonss stated stated below:-
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POINTS 1.
2.
3.
FINDINGS
Whether the prosecution proves that accu accuse sed d Nos.1 to 4 her herein ein alon along g with ith juvenile-in-conflict-with-law Chand, on 22.8.2013 at about 5.30 p.m. agreed to do or caus cause e to be done done the the act act of comm commit itti ting ng forcible sexual assault on the the prosecutrix, a young girl of 22 years, against her will and without her consent, when she was proceeding along with her colleague Anurag in the premises of Shakti Mill Compo ompoun und d an and d ther thereb eby y comm commit itte ted d an offence offence of criminal criminal conspirac conspiracy y punishable punishable u/s. 120-B of Indian Penal Code?
..Proved
Whether the prosecution further proves that during the course of same transaction at the same same time and and place, place, accused accused nos.1 nos.1 to 4, along with juvenile-in juvenile-in-conf -conflictlict-withwithlaw law, na name med d abo above, ve, in purs pursua uanc nce e of the the crim crimin inal al cons conspi pira racy cy hatc hatche hed d by them them,, comm commit itte ted d rape rape on the the pros prosec ecut utri rixx by committing committing forcible sexual intercourse intercourse and other other sexual sexual acts acts with with her, her, constit constituti uting ng a grou group p or acti acting ng in furt furthe hera ranc nce e of thei theirr common common intention intention and thereby thereby committed an offence punishable u/s. 376(D) r/w 120B of I.P.C.? I.P.C.?
..Proved
Whether the prosecution further proves that during the course of same transaction at the same time and place in pursuance of the criminal conspiracy hatched by accused Nos. 1 to 4 along with juvenile -in -conflict with-law, with-law, named above, committed carnal interc intercours ourse e by penetr penetrati ating ng penis penis into into the anus of the prosecutrix, against her will and without her consent and thereby accused Nos.1 to 4 committed an offence
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punishable u/s. 377 r/w 120-B of I.P.C. ..Proved 4.
Whether the prosecution further proves that during the course of same transaction, at the same time and place in pursuance of the criminal conspiracy hatched by accused Nos. 1 to 4, alongwith juvenile-in-conflict with-law, with-law, named above, accused No No.4 .4 comp compel elle led d the the pros prosec ecut utri rixx by sho showing wing pornographic video clipping to her from his mobi mobile le to perf perfor orm m oral oral sex sex with withou outt her her consent and thereby accused Nos. 1 to 4 committed committed an offence offence punishable punishable u/s. 354 A(iii) r/w 120-B of I.P.C.? ..Proved
5.
6.
Whether the prosecution further proves that during the course of same transaction at the same time and place, in pursuance of the criminal criminal conspiracy conspiracy hatched amongst amongst them, along with juvenile-in-conflict-withlaw, accused Nos. 1 to 4 used criminal force to the prosecu ecutrix rix with intention of disr disrobi obing ng or comp compel elli ling ng her her to be naked naked and thereby committed an offenc ence punishable u/s. 354(B) r/w. 120-B of I.P.C.?
..Proved
Whether the prosecution further proves that during the course of same transaction at the same time and place, accused nos.1 to 4 along along with with juveni juvenilele-in-c in-conf onflic lict-w t-with ith-law law na name med d abo above, ve, in purs pursua uanc nce e of the the crim crimin inal al cons conspi pira racy cy hatc hatche hed d by them them,, wrongfully restrained and confined the prosecutrix and her colleague Anurag and thereby committed an offence punishable u/s. 341, 342,r/w 120-B of I.P.C.?
..Proved
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7.
8.
Whether the prosecution further proves that during the course of same transaction at the same time and place, accused Nos.1 to 4 along along with with juveni juvenilele-inin-con confli flictct-wit withhlaw law, na name med d abo above, ve, in purs pursua uanc nce e of the the criminal criminal conspiracy conspiracy hatched hatched hereinabo hereinabove, ve, voluntarily caused hurt to the prosecutrix and her colleague Anurag and also committed criminal intimidation by giving threat eatening to kill them hem and ther hereby committed an offence punishable u/s. 323, 506(II) r/w 120-B of I.P.C. I.P.C.
..Proved
Whether the prosecution further proves that during the course of same transaction at the same time and place, in pursuance of the criminal criminal conspiracy conspiracy hatched amongst amongst them along with juvenile-in-conflict-withlaw, law, named named above, above, accuse accused d No.4 o.4 showed showed the the porno pornogr grap aphi hic c vide video o clip clippi ping ngss on his his mobile to the prosecutrix which contained lascivious materia rial and made video deo recording of the incident of sexual assault and compelled her to do oral sex as depicted in the video clipping and thereby accused Nos. 1 to 4 committed an offence puni punish shab able le u/s. u/s.67 67 of The The Info Inform rmat atio ion n Technology Act, 2000 r/w 120-B of I.P.C.? ..Proved
9.
Whether the prosecution further proves that during the course of same transaction at the same time and place, accused nos.1 to 4 along along with with juveni juvenilele-inin-con confli flictct-wit withhlaw, in pursuance of the criminal conspiracy conspiracy hatched hatched hereinabo hereinabove, ve, knowing knowing that the offence of gang rape, punishable with life imprisonment has been comm ommitte tted, caused certa rtain eviden dence
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connected with the said offence like shirt worn and video clippings of the prosecutrix to be destroyed and thereby committed an offence punishable u/s. 201 r/w 120-B of I.P.C.? 10.
What order?
..Proved ..As per final order.
REASONS 30.
In su support of of it its ca case, ou out of of 87 87 wi witnesses ci cited in in th the ch charge-
shee sheet, t, pros prosec ecut utio ion n has has exam examin ined ed in all all 44 witn witnes esse ses, s, cons consis isti ting ng of prosecutrix, her mother, her colleague Anurag and Tejal in addition to 10 panch witnesses, 4 carriers, 5 Doctors, 5 Nodal Officers, 9 police officers, a photographer, Executive Magistrate, DNA Expert and others. They are as follows :
➢
(Exh.21)) is the Interio Interiorr Design Designer er P.W .W.1-Sandeep .1-Sandeep Sharad Kanvinde (Exh.21 who has prepared the sketch of the spot of incident incident vide Exh.24.
➢
P.W .W.2-Bajirao .2-Bajirao Hari Patil Patil (Exh.25) is the panch witness to the spot panchan panchanama ama (Exh.26 (Exh.26)) under under which which Muddema uddemall Articl Article e No.1-p o.1-pink ink colour odhani, Muddemal Article No.2-piece of black colour cloth and Muddem Mu ddemal al Articl Article e No.3-b o.3-brok roken en piece piece of glass glass of beer bottle bottle were were recovered.
➢
P.W .W.3-Nitin .3-Nitin Khodidas Soliya (Exh (Exh.2 .27) 7) is the the panc panch h witn witness ess to the the
20
seizure panchanama (Exh.28) of Muddemal Article No.4-mobile of the prosecutrix. ➢
P.W.4 is the mother of the prosecutrix (Name withheld to protect the identity of prosecutrix). prosecutrix) . Her evidence is at Exh.29.
➢
P.W .W.5-Tejal .5-Tejal (Exh.35) (Full name withheld to protect the identity of prosecutrix). She is the In-charge of department in which prosecutrix and witness Anurag were working and she is also panch witness to the seizure panchanama (Exh.36). The clothes of prosecutrix are are marked through her evidence as Muddemal Article Nos.5 to 10.
➢
herself. Her Her testimo testimony ny is at Exh.3 Exh.38 8 and P.W .W.6 .6 is the Prosexutrix herself. complaint complaint is at Exh.39. Her statement statement recorded recorded by Magistrat Magistrate e under section section 164(5) 164(5) of Cr.P Cr.P.C., proved through through her evidence evidence is marked as Exh.40.
➢
P.W.7-Pravin Amardas Parmar (Exh.41) Parmar (Exh.41) is the panch witness to the memorandum memorandum panchanama panchanama (Exh.42) (Exh.42) of accused accused No No.3-M .3-Mohd.Ka ohd.Kasim sim and seizure panchanama (Exh.43) of his mobile-Muddemal Article No.12 No .12 at his instance.
➢
P.W.8-Ravi Nagnath Dandagule Dandagule (Exh.44) is the mobile vendor who has, has, at the instanc instance e of accused accused No.3-M o.3-Mohd. ohd.Kas Kasim, im, produc produced ed the mobile-Muddemal Article No No.12. .12.
➢
(Exh.45) is the A.P.I. attached attached to Crime P.W.9-Vinod Tukaram Tawde (Exh.45)
21
Branch, Branch, Unit-III Unit-III who has arrested arrested accused accused No No.3-M .3-Mohd.K ohd.Kasim asim vide arre arrest st panc pancha hana nama ma (Exh (Exh.4 .46) 6) on 25 25/0 /08/ 8/20 2013 13 an and d was was also also the the Inve Invest stig igat atin ing g Offi Office cerr as rega regard rdss the the memo memora rand ndum um an and d seiz seizur ure e panchanama of mobile-Muddemal Article No.12 at the instance of accused No No.3-Mohd.Kasim. .3-Mohd.Kasim. ➢
P.W .W.10-Ajay .10-Ajay Kumar Kumar Laltuprasad Gautam Gautam r/o Delhi (Exh.48) is the panch panch witn witnes esss to the the perso persona nall sear search ch panc panchan hanam ama a (Exh (Exh.4 .49) 9) of accused No.4-Mohd.Salim in which black mobile of Nokia company, X-2 model-Muddemal Article No No.13, .13, cash amount along with railway ticket-Muddemal Article No.14 were seized.
➢
(Exh.5 .50) 0) is P.I. atta attach ched ed to Crim Crime e P.W .W.11-Gulabra .11-Gulabrao o Arjun More (Exh Bran Branch ch,, Unit nit III III who who has has arre arrest sted ed accu accuse sed d No.1o.1-Vi Vija jay y Jadha adhav v on 24/08/2013 and took his personal search under panchanama (Exh. 58). 58). He has also arreste arrested d accuse accused d No No.4.4-M Mohd.Sal ohd.Salim im and took his personal search under panchanama (Exh.49).
➢
P.W .W.12-Sandeep .12-Sandeep Janardan Dabhilkar (Exh.56) is the panch witness to the seizure panchanama (Exh.57) of two Memory cards-Muddemal Article Nos.16 and 17 produced produced by witness Anurag.
➢
(Exh.58)) is the photog photograph rapher er.. P.W .W.13-Sandeep .13-Sandeep Maruti Gurav (Exh.58
The
photographs proved by him are at Exh.59/1 to Exh.59/22 and the Memo Memory ry card card of the the said said photo photogr grap aphs hs is produ produce ced d as Muddem uddemal al
22
Article No.18. No.18. ➢
(Exh.6 .62) 2) is the the Polic olice e Naik aik who who has has P.W .W.14-Vijay .14-Vijay Atmaram Desai (Exh carri carried ed Muddem uddemal al Artic Article less to C.A. C.A.of offi fice ce on 02 02/0 /09/ 9/20 2013 13 an and d on 11/0 11 /09/ 9/20 2013 13 alon along g with with Forwa orward rdin ing g Lett Letter erss-Ex Exh. h.63 63 an and d Exh. Exh.64 64 respectively.
➢
P.W.15-Suhas Nanasaheb Kaginkar (Exh.65) Kaginkar (Exh.65) is the Police Constable who has h as carried carr ied Muddemal i.e. medical samples of the prosecutrix to the C.A. office on 23/08/2013 vide forwarding letter Exh.66.
➢
P.W .W.16-Sunil .16-Sunil Shivaji Rasal (Exh.67) Rasal (Exh.67) is the A.P.I. attached to N.M.Joshi Marg Police Station who has made entry in station diary about the registration of offence on the night of the incident.
➢
P.W .W.17.17-Anur Anurag ag is the colleague of the prosecutrix and an eyewitness to the incident. His evidence is at Exh.70. Exh.70.
➢
(Exh.7 .79) 9) is the the panc panch h witn witness ess to the the P.W .W.18-Atish .18-Atish Babaji Kadam (Exh memora memorandu ndum m panchana panchanama ma (Exh.80 (Exh.80)) of accused accused No No.4.4-Sa Salim lim and seizure panchanama (Exh.81) of his clothes -Muddemal Article Nos.19 and 20.
➢
P.W.19-Kunal Ramesh Kadam Kadam (Exh.82) is the panch witness to the memorandum memorandum panchanama panchanama (Exh.83) (Exh.83) of accused accused No No.1-Vij .1-Vijay ay Jadhav Jadhav and seizure panchanama (Exh.84) of his clothes-Muddemal Article Nos.21 to 25.
23 ➢
P.W.20-Vaibhav Milind Mohite (Exh.85) Mohite (Exh.85) is the panch witness to the memorandum memorandum panchanama panchanama (Exh.86) (Exh.86) of accused accused No No.3-M .3-Mohd.K ohd.Kasim asim and seizure panchanama (Exh.87) of his clothes -Muddemal Article Nos.26 and 27.
➢
P.W .W.21-Dattatray .21-Dattatray Arjun Kolambkar Kolambkar (Exh.89) has carried 12 sealed packets to CA office on 26/08/2013 vide forwarding letter Exh.90 and 3 sealed packets to FSL Kalina on 28/08/2013 vide forwarding letter Exh.91.
➢
P.W .W.22-Dr .22-Dr.Mrs.Such .Mrs.Suchita ita Ambajirao Phad (Exh (Exh.9 .92) 2) is the the Medic edical al Officer attached to Nagpada Police Hospital who has collected blood samples of the accused for DNA purpose vide Consent Forms-Exhs.97 to 101.
➢
(Exh.94) is the panch witness to P.W.23-Mangesh Ramakant Gurav (Exh.94) the memorandum panchanama (Exh.95) of accused No.2-Siraj and seizure panchanama (Exh.96) of his mobile phone-Muddemal Article No.28.
➢
P.W.24-Dr.Baban Shreepati Shinde Shinde (Exh.102) is the Medical Officer attached to Nagpada Police Hospital who collected the blood sample of the prosecutrix for DNA purpose.
➢
P.W .W.25-Dr .25-Dr.Harsha .Harshall Radhakrishna Thubhe (Exh (Exh.1 .105 05)) is Resid esident ent Doctor attached to J.J.Hospital who conducted medical examination
24
of all the four accused and issued the certificates vide Exhs.106 to 109. ➢
P.W.26-Mr.Vikas Narayan Phulkar Phulkar (Exh.110) is the Assistant Nodal Officer from Vodafone company who has produced the call details records records of the phone of prosecutrix, prosecutrix, her mother, mother, Anurag and Tejal Tejal vide Exhs.111 to 116.
➢
P.W .W.27-Changdev .27-Changdev Haribhau Godse (Exh.1 (Exh.117) 17) is the Nodal Officer Officer from Vodafone Vodafone company who has produced the th e Customer Application Form of Cell No.9769125965 vide Exh.120 and call detail record of the same mobile recovered recovered from accused No.3-Mohd.Kasim No.3-Mohd.Kasim vide Exh.121.
➢
(Exh.1 .122 22)) is the the Exec Execut utiv ive e P.W .W.28-N .28-Nagora agorao o Barkaji Barkaji Lokhande Lokhande (Exh Magistrate who has conducted the test identification parade of the accused at Byculla Jail vide memorandum panchanama (Exh.123) of test identification parade.
➢
h.125) is the Noda odal Officer of Tata P.W .W.29-Mr.Baby .29-Mr.Baby John (Exh.1 Teleservices who has produced call details record vide Exh.129 of mobile of accused No.4-Mohd.Salim. No.4-Mohd.Salim.
➢
P.W.30-Prafull Vishnu Silimkar (Exh.131) Silimkar (Exh.131) is the panch witness to the memora memorandu ndum m panchan panchanama ama (Exh.1 (Exh.132) 32) of accuse accused d No.2-S o.2-Sira irajj and seizure panchanama (Exh.133) of his clothes-Muddemal Article Nos. 29 and 30.
➢
P.W.31-Rajesh Sampatrao Gaikwad (Exh.134) Gaikwad (Exh.134) is the Nodal Officer in
25
Reliance Communication Ltd. who has produced the t he call detail record (Exh.137) (Exh.137) of the mobile used by accused accused Chand, juvenile-in-conf juvenile-in-conflictlict with-law. with-law. ➢
P.W .W.32-Sun .32-Sunil il Narayan Narayan Pawar Pawar (Exh (Exh.1 .142 42)) is the A.P A.P.I. .I. attac attache hed d to Agripada Police Station who has arrested juvenile-in-conflict-withlaw, Chand.
➢
P.W.33-Nandakumar Pandurang Adhavkar Adhavkar (Exh.143) is Police Nike who has on 27/08/2013 carried five blood samples and 14 medical samples of the accused from J.J.Hospital to FSL.
➢
P.W.34-Sunil Subhashchandra Tiwari (Exh.147) Tiwari (Exh.147) is the Nodal Officer in Aircel Company who has produced call detail record (Exh.150) of mobile of Mustafa Khalil Shaikh.
➢
(Exh.154) has given his Sim Card to P.W.35-Samsher Sharif Shaikh Shaikh (Exh.154) juvenile-in-conflict-with-law.. juvenile-in-conflict-with-law
➢
(Exh.1 .156 56)) is the the star star witn witnes esss for for P.W .W.36-Aakash .36-Aakash Ganesh Swamy (Exh prosecution, as according to prosecution, accused-Siraj, Kasim and juvenile-in-conflict-with-law were called at spot, when they were playing cards with him.
➢
P.W .W.37.37- Deepak Rajaram Chavan (Exh.157) (Exh.157) is P.I. attached attached to DCB CID Unit-III, Unit-III, who has in pursuance pursuance of the respective respective memorandum memorandum and seizure panchanamas, recovered the clothes of accused No.4-
26
Mohd. Mo hd.Sal Salim, im, accused accused No No.2.2-Si Siraj raj,, accused accused No.1-V o.1-Vija ijay y Jadhav Jadhav and accused No.3-Mohd.Kasim. ➢
P.W .W.38-Priyanka .38-Priyanka Suresh Suresh Mhatre (Exh (Exh.1 .160 60)) is the the WPSI WPSI who who has has record recorded ed the comp complai laint( nt(Exh Exh.39 .39))
of prosec prosecutri utrixx and fille filled d up the
proforma (Exh.39-A). ➢
P.W.39-Dr.Asmita Pundlikrao Patki (Exh.162) Patki (Exh.162) is the Medical Officer from Jaslok Hospital who has examined the prosecutrix and issued certificate (Exh.163) and final opinion (Exh.165).
➢
P.W.40-Dr.Ms.Nisha Pradeep Singh (Exh.166) Singh (Exh.166) is Emergency Medical Officer in Jaslok Hospital who has examined P.W.17-Anurag and issued certificate (Exh.167).
➢
(Exh.169) 69) is the P.S.I. .S.I. attach attached ed to P.W .W.41-Shamrao .41-Shamrao Tukaram Tukaram Patil Patil (Exh.1 N.M.Joshi Marg Police Station who has made station diary entry of information received from hospital, conducted seizure panchanama of the clothes of prosecutrix vide Exh.38 and recorded the statements of two witnesses i.e. Dr.Nisha Dr.Nisha Singh and Preeti Kadam.
➢
P.W .W.42-Shri .42-Shrikant kant Hanumant Lade (Exh.174) Lade (Exh.174) is DNA Expert from F.S.L. Kalina. Various Various C.A.and DNA Reports produced and proved by him are at Exhs.175 to 178 and Exh.180.
➢
P.W.43-Arun Shivaji Mane (Exh.184) Mane (Exh.184) is the P.I. attached to N.M.Joshi Marg Police Station who has conducted some part of Investigation,
27
like recording statements of some of the witnesses. ➢
P.W.44- Manohar Dagdu Dhanavade (Exh.188) Dhanavade (Exh.188) Senior P.I. attached to DCB CID, Crime Branch, Unit-III is the Investigating Officer in this case.
31.
After th the pr prosecution ha has cl closed it its ca case, I hav have re recorded th t he
statements statements of accused accused under Section 313 of Cr.P Cr.P.C. in which which the accused accused have reiterated their defence of false implication and tampering of DNA samples.
32 .
To substantiate their defence that their photographs were
shown shown to the prosecutrix prosecutrix and P.W.17-An .W.17-Anurag urag before before the test identificat identification ion para parade des, s, accu accuse sed d have have exam examin ined ed two two witn witnes esse ses. s.
D.W.1 .W.1 is Da Daya yana nand nd
Shreenivas Kamat (Exh.220), Special Correspondent from DNA newspaper. Through Through his evidence, evidence, defence defence Counsels Counsels have exhibited exhibited the hard copy copy of DNA, Mumbai Edition dtd.04/09/2013 vide Exh.221.
33.
They ha have al a lso le led th t he ev e vidence of o f D. D.W.2-Divyesh An A nil Si Singh
(Exh.222), Principal Correspondent from Mumbai Mirror and through his evidence proved hard copy of Mumbai Mirror dtd.04/09/2013(Exh.223) in which according to them, the photographs of the accused accused are appearing.
28
34 34.
The def defence Cou Counsels hav have als also exa examined one ch c hild wit witness-
Gan anes esh h Anan Anand d Jalga algaon onka karr vide vide Exh. Exh.21 219 9 who hose se na name me was was cited ited in chargesheet but not examined by Prosecution. However, except for stating that he knows Chand, the juvenile-in-conflict-with-law, nothing is brought through his evidence either to support the defence or the prosecution.
FACTUAL BACKDROP BACKDROP::35.
At the outset itself it has to be observed th that this case stands on
the the most most so soli lid d foun founda dati tion on of the the evid eviden ence ce of pros prosec ecut utri rix. x.
Her so sole le
testimony is of such a sterling quality, giving vivid and truthful account of entire entire incident, that it clinches clinches the fate of the case. case. It is alone sufficien sufficientt to prove prove the guilt of the accused accused on all the counts, though though it is apart that, each and every aspect of her evidence stands corroborated from atleast more than two to three independent sources.
36.
The pr prosecutrix in in th this ca case is is a pe petite yo young gi girl ha hardly of of 22 22
years age, who has after completing one year diploma course in Social Media Communication from Sofia College in April 2013, joined service in Time Out Ma Magaz gazine ine of Essar Essar Group Group as Intern Intern Photoj Photojourn ournali alist. st.
P.W.17 .W.17--
Anurag was also working in the same Magazine as Photojournalist since 2013. 201 3.
P.W.5.W.5-T Tejal ejal was Head Head of their Departm Department. ent.
The job profil profile e of
29
prosecu prosecutrix trix and P.W.17 .W.17-An -Anura urag g was to click click the photog photograp raphs hs as per the article articless given by the Edit Edit Departmen Department. t. At the same time, time, they were were also also initiating their own ideas for clicking the photographs. Job profile of P.W P.W.5.5Tejal was to assign the jobs to her subordinates, to edit the photographs taken by them and to select the photographs clicked by them for publishing in the art group of Magazine.
37.
It is is th the ev evidence of of pr prosecutrix an and P.W.17-Anurag th that, he he ha has
floated the idea of clicking the photographs of dilapidated structures and old articles in Mumbai city. city. It is evidence of P.W P.W.5-T .5-Tejal ejal also that as in Time Out Magazine they wanted to look at the city in a more interesting way and to cove coverr thos those e face facets ts of the the city city whic which h are are othe otherw rwis ise e un unno noti tice ced d an and d unattended, unattended, she found this idea of Anurag Anurag extremely extremely interesting, interesting, moreover moreover something like that was was not recorded recorded in their Magazine Magazine earlier. Hence, she approved his idea.
38.
It is is th the co consistent ev evidence of of th these th three wi witnesses th that af after
approval from her, P.W.17-Anurag .W.17-Anurag started working on it. He did photo-shoot of an old shed at Lower Parel, an Ambassador car at Grant Road Station and one old Scooter Scooter at Bandra Bandra Chapel Chapel Road. Therea Thereafte fterr he thought thought of doing doing photo-shoot of old and defunct premises of Shakti Mill which is situate near
30
Mahalaxmi Railway Station. As per evidence evide nce of P.W P.W.5-T .5-Tejal ejal and prosecutrix, as the the idea idea of artis artisti tica call lly y captu capturin ring g
the old an and d herit heritage age struct structur ures es to
pres preserv erve e them them as memo memory ry for for futur future e gene genera rati tion onss was was quit quite e engag engagin ing, g, prosecutrix offered to accompany P.W.17-Anurag in photo-shoot of some of the old structure structuress and old articl articles es..
Alongw Alongwith ith P.W P.W.17 .17-An -Anura urag, g, she has
captured the photo-shoot of old Ambassador car near Grant Road Station. Thereafter she joined him in photo-shoot of Shakti Mill premises.
EVIDENCE RELATING TO ACTUAL INCIDENT INCI DENT OF SEXUAL ASSAULT ASSAULT. 39.
As pe per ev evidence of of P.W.17-Anurag, he he ha has his ow own N Niikon di digital
camera camera with which he used to do the photo-shoot photo-shoot whereas prosecutrix prosecutrix was having her own Apple Apple I-phone 4S. It is deposed by by him that, on 22/08/2013 22/08/2013 at about 3.00 p.m., he told P.W P.W.5-T .5-Tejal ejal that he would be going to Shakti Mill prem premis ises es in the the even evenin ing g for for taki taking ng the the phot photog ogra raph phs, s, alon along g with with the the prosecutrix. prosecutrix. She gave the permission permission and then he himself himself and prosecutrix prosecutrix left the office at about 5.00 p.m. and went walking towards Mahalaxmi Railway Railway Station, Station, which which was hardly at a distance distance of 5-7 minutes minutes from their office office.. It is deposed deposed by him and also by prosecut prosecutrix rix that from railwa railway y platf platform orm,, they they came came on the the rail railwa way y trac track k an and d then then start started ed proc proceed eedin ing g towa toward rdss Lo Lowe werr Parel arel Rail Railwa way y Stati tation on from from the the rear rear side side of Shak Shakti ti Mill Mill premises premises.. When they reached reached upto the compound wall of Shakti Mill, Mill, they
31
found that the wall was broken and they could not enter inside from there as some trees and grass was on the way.
40.
It is is de deposed bo both by by th the pr prosecutrix an and An Anurag th that at at th that
time, they met two persons who came out of the premises of Shakti Mill and those two persons persons told them that there there was way to go inside the Mill. They also informed that the said way was better and it was at the distance of 15ft. only and, hence, both Anurag and prosecutrix went inside by that way. According to evidence of the prosecutrix, those th ose two persons waited till they went inside.
41.
The prosecutrix has in in her complaint, lodged im immediately after
the incident and in her evidence before the Court given description of those two persons persons to whom they met at the entranc entrance. e. Accor Accordin ding g to her, her, one person had a mustache and was was having wheatish complexion. His age was 25 to 30 years. years. He was wearing white checkered checkered shirt. In test identification parade and also in evidence before the Court, she has identified the said person as accused No.4-Mohd.Salim. No.4-Mohd.Salim.
42.
She ha h as gi g iven th t he description o f th the se s econd pe p erson in i n he h er
complaint complaint and also in her evidence evidence before the Court that, he was of the age
32
of about 20 to 25 years. He was slim, slim, dark in complexion complexion and was wearing black and white white checkered checkered shirt. In test identifica identification tion parade and also in evidence before the Court, she has identified the said person as accused No. 1-Vijay Jadhav.
43.
The de description of of th these tw two pe persons gi given by by pr prosecutrix is is
completely completely tallying with the description description given by P.W.17-An .W.17-Anurag, urag, who has also corroborated the prosecutrix by stating that one of the said persons was appr approx oxim imat atel ely y of the the age age of 30 year years, s, havi having ng broa broad d musta ustach che. e.
His His
complexion was wheatish and he was wearing white shirt with black checks thereon thereon and black black pant. pant. His built built was was average. average. He has has identified identified the the said person as accused No.4-Mohd.Salim both, in test identification parade and also in evidence before the Court.
44.
He has given the description of second person as of slim built
with dark complexion. He was wearing wearing dark colour pant and of the age of 20 to 22 years. years. He has identifie identified d the said person, both in test identificati identification on parade and also in evidence eviden ce before the Court as accused No No.1-Vijay .1-Vijay Jadhav. Jadhav.
45.
As pe per fu further ev evidence of of pr prosecutrix, on once sh she an and An Anurag
went inside the premises of Shakti Mill, they started taking photographs.
33
Anurag was using his Nikon digital camera whereas she was using her Iphone S4 mobile camera which was gifted to her by her mother. Her mother has also corroborated this fact and produced on record the purchase bill of the said mobile at Exh.30. According to prosecutrix and Anurag, they were taking photographs for about 45 minutes. All those photographs are stored in the phone memory of her mobile and in the memory card card of his camera. camera. In evidence before the Court, when the mobile-Muddemal Article No.4 seized from her possession during the course course of investigation was shown shown to her, she has stated that the photographs of Shakti Mill start from Sr.No.1430 to Sr.No Sr.No.1567. .1567. The first photograph at Sr.No Sr.No.1430 .1430 is of entry point in Shakti Mill premises which fact is verified by the defence Counsels and this Court also.
46.
This pa part of of he her ev evidence st stands co completely co corroborated wi with
the evidence of P.W P.W.17-Anurag .17-Anurag also, who has taken the photographs with his Nikon Nikon digital digital camera. camera. He has produce produced d on record record two Memory Memory cardscardsMuddemal Article Nos.16 and 17 of those photographs. They were seized by police under panchanama Exh.57 during the course of investigation. The said panchanama is proved through his evidence and the evidence of P.W.12 .W.12 Sandeep Dabhilkar. Memory cards contain the photographs of Ambassador car and Shakti Mill Mill premises. premises. Defence Defence Counsels Counsels have also after watching watching
34
memo memory ry car cards conf confir irme med d that that thos those e two two memo memory ry card cardss cont contai ain n the the photographs of Shakti Mill, clicked on that particular day. P.W.17-Anurag .W.17-Anurag is cross cross examine examined d on this this point also. also. The only only aspect raised raised is that on the photographs the date 22.8.2012 is appearing instead of 22.8.2013. However, Anurag has given the explanation about the same that it was a technical fault which is brought on record in his cross examination and, there is no reas reason on to disbel disbelie ieve ve the same same.. It is perti pertine nent nt to no note te that even in the the photographs of Ambassador car the date of year 2012 is appearing though the said photographs photographs were were also clicked clicked in the year 2013. The very fact that he has has join joined ed Time ime Out Out Ma Maga gazi zine ne in Jun une e 20 2013 13 an and d ther therea eaft fter er,, he has has initiated the idea of an article article on old and dilapidated articles and structures in Mumbai City, makes it clear that the photographs were taken in the year 2013 only.
47.
It is further evidence of prosecutrix and P.W.17-Anurag that
while taking the photographs, they were moving around in the premises of Shakti Shakti Mill and while doing so, they came at the end of the premises where they saw one broken wall and outside that wall, people and vehicles were passing on the road. Therefore according according to them, they decided to come come out of Shakti Mill Mill premises and proceed on that way way. It was around 6.15 p.m. p.m. As per the evidenc evidence e of P.W.17 .W.17-An -Anura urag g when they they entere entered d into into Shakti Shakti Mill Mill
35
compound, it was 5.30 p.m. and after taking the photographs for about 40 to 45 minutes, they had reached at the end when they had completed the phot photoo-sh shoo oot. t. This This fact act is again gain corro orrobo bora ratted from from the the timi timing ng on photographs in her mobile and his camera.
48.
However, wh while th they we were ab about to to co come ou out of of th the pr premises of of
Shakti Mill, according to the evidence of both these witnesses, the two perso persons ns to whom whom they they met met when when they they were were enter enterin ing g into into Shak Shakti ti Mill Mill premis premises es i.e. i.e. accuse accused d No.1-V o.1-Vija ijay y Jadha Jadhav v and accuse accused d No.4-M o.4-Mohd ohd.Sa .Salim lim came there along with one third person.
49.
The prosecutrix has given the descrip ription of the third person in in
her complaint lodged immediately and also in her evidence before the Court, which which perfectly perfectly tallies tallies with with the descriptio description n given by Anurag. Anurag. As per prosecutrix, he was a fat guy wearing pink shirt shirt and blue pant. He was dark in complexion complexion and his age was approximately approximately 25 to 30 years. According According to P.W.17-Anurag .W.17-Anurag also, the third person was of strong built. His face was round. His complexion complexion was dark. His age was 27 to 28 years and his height was 5.6 to 5.7 feet. He was wearing wearing pink pink colour colour shirt shirt and blue blue colour jeans jeans pant. Both Bo th,, prose prosecu cutr trix ix an and d Anur Anurag ag have have iden identi tifi fied ed this this third third perso person n in test test identification parade and also a lso in evidence before the Court as accused No.3-
36
Mohd.Kasim.
50.
It is is fu further ev evidence of of pr prosecutrix an and P.W.17-Anurag th that al all
thes these e thr three accu accuse sed d i.e. i.e. accu accuse sed d No.1-V .1-Vij ijay ay Jadha adhav v, accu accuse sed d No.3.3Mohd.K Mo hd.Kasi asim m and accused accused No.4-M o.4-Mohd ohd.Sa .Salim lim accost accosted ed her and Anurag Anurag.. Accused No.3-Mohd.Kasim No.3-Mohd.Kasim said in Hindi that, “hamare seth ne aapko dekha dekh a hai aur aapko unke pass jana hai”, hai”, Prosecutrix asked him who was his seth? (seth kaun hai?). hai?). Accused Accused No.3-M No.3-Mohd.K ohd.Kasim asim said that he was calling calling his superior superior officer as 'seth'. 'seth'. Prosecutrix Prosecutrix asked asked him whether she can talk with his seth on mobile. However However,, accused No.3-M No.3-Mohd.Ka ohd.Kasim sim said that as his seth was senior Railway Officer, she cannot talk with him on phone p hone and they will have to go to meet him. As per evidence of prosecutrix, accused No No.3.3Mohd.Kasim insisted that they should accompany him to meet his seth.
51.
P.W.17-Anurag has also stated that accused No.3-Mohd.Kasim
insist insisted ed that they they will have have to go to meet his seth. seth. It is the evidenc evidence e of prosecutrix and P.W.17-Anurag that then prosecutrix tried to call P.W.5-Tejal madam on phone, however, phone call was not answered.
52.
According to evidence of prosecutrix, she told the accused
persons that there is a road ahead and they will take that road but accused
37
No.3-Mohd.Kasim refused and said that they had to go by the same way from from whic which h they they came came..
P.W.1 .W.177-An Anur urag ag has has also also depos deposed ed that that he an and d
prosecutrix prosecutrix told those persons that if they had to meet their seth, then they will go by the way which is seen outside the compound wall. However However,, that third person i.e. accused No.3 said that it was a longer route and they will take take them them by short shorter er road. road.
In an answ swer er to quest questio ion n put put up by Spl.P pl.P.P.,
prosecutrix has also stated that accused No.3-Mohd.Kasim told them that the other road was longer and this was the shorter road to reach his seth.
53.
As pe per ev evidence of of pr proseuctrix, sh she an and An Anurag tr trusted ac accused
No.3 Kasim and started walking with them by the same route through which they had come inside. inside. By that time, time, prosecutrix prosecutrix received received the phone call of P.W.5.W.5-T Tejal ejal and she told told Tejal ejal on phone phone that that the railwa railway y persons persons had accoste accosted d them. them. As per evidenc evidence e of prosec prosecutri utrix, x, P.W.5.W.5-T Tejal ejal told told her to apologize to those railway persons and leave as early as possible and come to the office office.. It is deposed deposed by P.W.17 .W.17-An -Anura urag g also also that when they were proceeding along with those three accused persons, prosecutrix received the phone call of P.W P.W.5-T .5-Tejal ejal madam and prosecutrix told her that they had met some railway persons and they had asked them to meet their seth, hence they were were going to meet their seth. Prosecutrix also, also, after answering the the call, all, told told him that hat Tejal ejal mada madam m has has calle alled d them them to the the offi offic ce
38
immediately.
54.
This par part of th the evidence of pr prosecutrix and and P.W.17-Anurag
stands completely completely corroborated corroborated from the evidence evidence of P.W.5-T .W.5-Tejal ejal who has stated that on that day, after P.W.17-Anurag .W.17-Anurag and prosecutrix left for Shakti Mill Mill prem premis ises es at about about 5.00 5.00 p.m., .m., she she cont contin inue ued d to rema remain in in offi office ce.. Thereafter Thereafter at about 6.15 6.15 p.m., p.m., she got a call from prosecutrix prosecutrix.. As she was busy busy,, she she did did no nott pick pick up it. it.
Howeve weverr, afte afterr so some me time time,, she she call called ed
prosecutrix and at that time, prosecutrix told her that when she and Anurag had gone to Shakti Mill premises for photo-shoot, they met some persons of railway railway who told them that that they cannot do the photo-shoot. photo-shoot. Prosecutrix Prosecutrix also told her that those persons were insisting that both of them should go to their boss. boss. Prosecutrix Prosecutrix asked asked her, her, what she should do and according according to P.W.5 .W.5 Tejal, Tejal, she told prosecutrix that if it is a railway railway property and those people are having any objection for photo-shoot, then leave that place and come to the office, after after apologizing them. Prosecutrix said O.K. O.K. and cut the phone. phone. As per her further evidence, evidence, thereafte thereafterr she was waiting for for her call but prosecutrix prosecutrix did not call. Therefore Therefore,, she sent her SMS of “please “please call', call', however, however, prosecutrix neither called nor replied the SMS.
55.
At th this st stage it itself, it it ma may be be st stated th that th this pa part of of ev evidence
39
pros prosec ecut utri rix, x,
P.W.5 .W.5-T -Tej ejal al
and an d
P.W.1 .W.177-An Anur urag ag
agai again n
get get
comp comple lete te
corroboration from the call detail records produced on record, of mobile numbers of prosecutrix, P.W P.W.5-T .5-Tejal ejal and P.W P.W.17-Anurag. .17-Anurag. It is brought on record through the evidence of these three witnesses that mobile number of Tejal ejal is 98197836 9819783639, 39, mobile mobile number number of Anurag Anurag is
967398 967 398024 0240 0 wherea whereass
mobile mobile number number of prosecu prosecutrix trix is 993 993086 086034 0344. 4. The call call detail detail records records of mobile number of P.W.5-Tejal and prosecutrix produced on record at Exhs. 116 and 113 through through the evidence evidence of P.W.26-V .W.26-Vikas ikas Phulkar Phulkar,, Nodal Nodal Officer Officer from Vodafone company, clearly go to prove that there was call from mobile No.9819783639 of P.W.5-Tejal to prosecutrix on her mobile No.9930860344 at 18.23 hrs. for duration duration of 39 seconds and there is also a SMS from P.W P.W.5.5Tejal's ejal's phone phone No No.98 .98197 197836 83639 39 to prosec prosecutri utrix's x's mobile mobile No.993 o.993086 086034 0344 4 at 18.29 hrs.
56.
Now co c oming b ac ack to t o t he he e vi vidence o f pr prosecutrix as a s re regards
actual incident, it is her case that after phone call with P.W P.W.5-T .5-Tejal, ejal, she again requ reques este ted d the the said said pers person onss i.e. i.e. accu accuse sed d No.1-V .1-Vij ijay ay,, accu accuse sed d No.3.3Mohd.Kasim and accused No.4-Mohd.Salim No.4-Mohd.Salim to let them go but, they refused. P.W.17-Anurag has also deposed that both of them told those three person that they have to leave immediately and they want to get out but the third person i.e. accused No.3-Mohd. Kasim told them not to feel afraid, seth will
40
only make inquiry with with them and then they can leave. Prosecutrix has also deposed that accused No.3 Mohd. Kasim told them they will let them go once they they meet meet their their seth.
Hence Hence they they kept on walking walking with with those those three three
persons.
57.
As pe per th their ev evidence, af after th they co covered so some di distance, ac accused
No.3-M No .3-Mohd.K ohd.Kasim asim stopped stopped them and said to Anurag that, “idhar “idhar kuch din pahele murder hua tha, woh murder murder tumne kiya hai.” hai.” As per their evidence, both of them got scared and said that they are the photographers and why they will commit the murder of any person ? As per evidence of prosecutrix, she also said that they were coming to the place first time and they have not done done anythi anything. ng. At that time, time, as per the evidence evidence of prosec prosecutri utrix, x, the fat person i.e. accused No No.3-Mohd.Kasim .3-Mohd.Kasim looked back and called two persons. P.W.17-An .W.17-Anurag urag has also deposed that the third person i.e. accused No No.3.3Mohd.Kasim called out to someone and said, “are idhar aao shikar idhar hai”. hai”. It is deposed by both of them them that then two more persons came there. there. Prosecutrix got scared and asked who are those two persons and the third person i.e. accused No.3-Mohd.Kasim said that those two persons were his associates. Thus, totally there there were five five persons.
58.
Both,
prosecutrix
a nd
P.W.17-Anurag
ha d
given
detail
41
description of those two persons, both in complaint and in their statement respectively, recorded immediately after the incident and also in evidence before before the Court. Accordin According g to prosecutrix, prosecutrix, out of those two persons, persons, one was wearing maroon shirt and blue pant. His age was about 20 to 25 years and he was having good built. Whereas P.W P.W.17-Anurag .17-Anurag has stated that fourth person was of the age 22-23 years. years. He was wearing a shirt of maroon colour and blue jeans. jeans. Both of them have identifie identified d the said fourth person person in the test identification parade conducted in Children's Home, he being juvenilein-conflict-with-law, in-conflict-with-law, namely Chand. Both of them have stated that he is not present in the Court when their evidence was recorded.
59.
Both, pr prosecutrix rix an and P.W.17-Anurag ha have gi given th the de description
of the fifth person, both in complaint and in their statement respectively recorded immediately after the incident and also in evidence before the Court. Co urt. Accor Accordin ding g to prosecutri prosecutrix, x, said person person was slim, slim, having having wheati wheatish sh complexion. His age was was about 20 to 25 years and he was wearing wearing lavender colour shirt and gray colour pant. Whereas Whereas P.W P.W.17-A .17-Anurag nurag has also stated that the fifth person person was of slim built. His age was 26-26 26-26 years and he was wearing blue colour shirt with lining and full pant. Both of them have identified accused No.2-Siraj as the said fifth person in test identification parade and also in evidence before the Court.
42
60.
It is is fu further evi evidence of P.W.17-Anurag th that af after see seeing tho those
five five person persons, s, both of them them were were totall totally y fright frightene ened. d. They They were were saying saying to those accused that they will meet their seth subsequently. subsequently. While saying so, they were about to leave but, the third person out of them i.e. accused No.3Mohd.K Mo hd.Kasi asim m threaten threatened ed them to keep quiet. quiet. He took took out the belt and assaul assaulted ted Anurag Anurag with that belt belt on his left left arm. He then then tied tied his hands hands behind behind with that that belt. Prosec Prosecutri utrixx has also stated stated that though though she was requesting the accused to let them go in lieu of taking her mobile and Anurag's camera, they did not accept her offer and did not allow them to go. The fat fellow i.e. accused No.3-Mohd.Kasim then removed his belt and hit Anurag with that belt. Then both of them got really scared. Accused No.3Mohd.Kasim then tied Anurag's hands behind his back with with that belt. They were pleading with them to let them go go but they did not allow. allow.
61.
It is is de deposed by by P.W.17-Anurag al also th that se seeing th that hi his ha hands
were tied with belt, prosecutrix became more frightened and offered the accused persons his camera and her mobile saying that they were worth of Rs.30,000/- each. She requested them to accept the camera and mobile and allow them to go. However However,, accused No.3-Mohd.Kasim No.3-Mohd.Kasim did not listen to her. As per evidence of prosecutrix, when the fat person i.e. accused No No.3.3Mohd.Kasim noticed that Anurag's hands were coming out of the belt with
43
which they were tied, he got very angry angr y and told her to remove her belt and then with her belt, he again tied Anurag's hands. hands. P.W.17-An .W.17-Anurag urag has also corroborated her evidence by stating that accused No.3-Mohd.Kasim took out his belt and belt of prosecutrix and tied his hands with those two belt also also and made made him him to sit there there..
At this this stage stage,, it may be stat stated ed that that
Muddemal Article No.7-prosecutrix's belt seized under panchanama after registration of offence is produced on record which she has identified in evidence evidence before the Court. P.W.17-An .W.17-Anurag urag has also stated that as he was trying to untie the hands, accused No.3-Mohd.Kasim tied his hands with two belts.
62.
It is i s fu f urther d ep eposed by by pr p rosecutrix th t hat th t he fa f at p er erson i .e .e.
accused No.3-Mohd.Kasim No.3-Mohd.Kasim and the person with mustache i.e. accused No.4Mohd.Salim then took her to one dilapidated room. While entering into that room, room, she got the call of her mother mother on her mobile. mobile. The fat fat person i.e. i.e. accused No.3-Mohd.Kasim threatened her with broken piece of glass bottle and said to her that, if she makes any mischief, they will kill her and Anurag. Then Then they they said said to her her to tell tell her her moth mother er on phon phone, e, “sab “sab thee theek k hai” hai”.. Accordingly she said to her mother on phone in Hindi, “sab theek hai” and saying saying so, so, she disconnec disconnected ted the phone. phone. It is her further further evidenc evidence e that that norma no rmall lly y she she talk talkss with with her her moth mother er in En Engl glis ish. h.
How owev ever er,, as they had
44
threatened her to say in Hindi, “sab theek hai”, she said so accordingly in Hindi. Her mother again called her back. Then accused No No.3-Mohd.Kasim .3-Mohd.Kasim and accused No.4-Mohd.Salim told her to say the same thing again i.e. “sab theek hai”. hai”. Hence, she again said to her mother in Hindi, “sab “sab theek hai”. hai”.
63.
This evidence of th t he pr p rosecutrix ge g ets fu f ull su s upport fr f rom t he he
evidence evidence of her mother P.W P.W.4 .4 who has deposed that her mobile number is 9819 98 1960 6033 3386 86.. It is regi regist ster ered ed in her her own na name me..
The The orig origin inal al Cust Custom omer er
Application Form of the said mobile is also produced on record as Exh.31. As per her evidence, on 22/08/2013 it was her birthday. birthday. Hence, she along with her family members including her daughter i.e. prosecutrix had planned to go for dinner. Therefore, she called called twice her daughter on phone at about 6.40 p.m. to remind her about dinner, however as prosecutrix did not pick up the phone, she called called again. This time, time, prosecutrix prosecutrix picked up the phone and spoke in a very hurried manner in Hindi language saying, “Maa, main theek hoon” hoon”. She was quite surprised as her daughter talked in Hindi Hindi and not in usual English English language. language. As per her evidence, evidence, even if her daughter daughter used to be busy, busy, she always always used to inform her on phone that she will call her later. She always used to pick up the phone even if she used to be busy busy in work ork an and, d, ther theref efor ore e when when from rom her her side side the the phon phone e was was disconnected after saying “Maa “Maa main theek hoon”, hoon”, she called her again. At
45
that time also, her daughter spoke in Hindi itself, “Maa, main Mahalaxmi Station hoon, main theek hoon” hoon”. It is deposed by her that, she felt that she might be busy in her work and, therefore, she went to Church.
64.
This evidence of prosecutrix and P.W.4-her mother gets
complete support and corroboration from the call detail records-Exh.115 and Exh.11 Exh.113 3 produce produced d on record record through through the evidenc evidence e of P.W.26 .W.26-Vi -Vikas kas Phulkar Phulkar,, Nodal Officer Officer of Vodafon Vodafone e company. company. As per the said call detail reco record rds, s, two two call callss were were made made from from mobi mobile le No.981 .98196 9603 0338 386 6 of P.W.4 .W.4-prosecutrix' prosecutrix'ss mother to mobile mobile No.993086 No.9930860344 0344 of prosecutrix prosecutrix at 18.41 hrs. of duration of 12 second and 18 seconds se conds respectively. respectively.
65.
Reverting to to th the ac actual incident, it it is is de deposed by by the pr prosecutrix
that after she told her mother, as dictated by accused No.3-Mohd.Kasim No.3-Mohd.Kasim and accused No.4-Mohd.Salim, accused No.3-Mohd.Kasim snatched the mobile from from her hand hand and swit switch ched ed it off. off. Then Then he forci forcibl bly y took took her into into that dilapidated room. He put the broken glass bottle to her neck and told her to remove all her clothes. She refused but, then he said he will kill her. Hence, she removed her black T-shirt T-shirt and cream colour pant which she was wearing at the the tim time of inci incide dent nt an and d whic which h she she has has iden identi tifi fied ed in the the Co Cour urtt as Muddemal Article Nos.5 Nos.5 and 6. She was also required required to remove her shoes.
46
Then Then accuse accused d No No.3.3-M Mohd.Ka ohd.Kasim sim remov removed ed her bra and underwear underwear..
He
forced her to lie down on the cement platform which was in that room. Then he removed removed all his clothes and became completely completely nude. He forcibly forcibly came on her body and raped her. On the question put up by Spl.P Spl.P.P. as to what she understands by 'he raped her', prosecutrix explained that he forcibly inserted his penis in her vagina. As per her evidence, she screamed and an d asked asked him him to stop stop as it was was hurtin hurting g a lot. lot. But, But, he did did not. not. As per per evidence evidence of P.W.17-An .W.17-Anurag urag also, he has heard the scream scream of prosecutrix prosecutrix at that time.
66.
It is deposed by prosecutrix that, after accused No.3-
Mohd.Kasim finished, he started putting on his clothes and she also started putting on her clothes but accused No.3-Mohd.Kasim again put the broken glass bottle on her neck and told her not to move as his friends were coming and if she moves, moves, he will kill kill her and Anurag Anurag and bury them there. there. As per her evidence, evidence, he has wiped his penis penis with her socks. socks. It is her evidence evidence that she was bleeding very badly from vagina but he h e did not allow her to go.
67.
It is h er er further evidence that thereafter the person having
mustache, mustache, whom she has identified identified as accused accused No No.4-M .4-Mohd.Sa ohd.Salim, lim, came there. there. He also also removed removed all all his clothes clothes and and became became completely completely nude. nude. He
47
showed her one pornographic clip on his mobile and told her to do as shown shown in that pornographi pornographic c clip. clip. He inserted inserted his his penis in her her mouth. She pushed him away away. Then he punched her on her stomach and raped raped her by inserting inserting his penis in her vagina. vagina. He ejaculated. ejaculated. Then he he forced forced her her to sit sit on her her knees knees and and inserted inserted his penis in her her anus anus and and ejacula ejaculated. ted.
After he
finished, he put on his clothes clothes and then the third person who was wearing wearing maroon shirt (juvenile-in(juvenile-in-confl conflict-w ict-with-l ith-law) aw) came there. He also forcibly forcibly raped her by inserting his penis in her vagina.
68.
As pe p er her evidence after he h e le l eft, th t he next pe p erson we w earing
lavender shirt to whom she has identified as accused No.2-Siraj came there. He removed his clothes and became completely nude. He pushed her head back pulling her hair and put his his penis in her mouth. She pushed him away because because she was feeling like vomiting. vomiting. Then he raped her by inserting inserting his penis penis into her vagina. vagina. After After he put on his clothe clothes, s, next person, person, wearing wearing checkered shirt, to whom she has identified as accused No.1-Vijay came there. there. He force forced d his penis penis in her her hands and and asked her her to shake. shake. She was was compell compelled ed to do so out of fear. fear. Then Then he pushed pushed her on the cement cement block block and raped her by inserting his penis in her vagina.
69.
The trauma, torture an and agony of the pr prosecutrix, however, wa was
48
not over even thereafter. thereafter. Even after all the five accused persons committed committed forcible sexual intercourse with her, as per her evidence once again, fat fellow fellow i.e. accused accused No No.3-M .3-Mohd.K ohd.Kasim asim came back while while she started wearing her clothes clothes.. Though Though she pleaded pleaded with him to let her go becaus because e she was bleeding and having lot of pain, he started laughing and showed her the broken glass glass bottle. bottle. He told told her that she cannot go anywhere anywhere and further said, “aapko “aapko malum nahi nahi main kitna harami hoo. hoo. Aap paheli ladki nahi ho jispe hamne rape kiya hai. Hamne kai ladkiyonpe yaha rape kiya hai. Kisine hamko pakda nahi.”.
70.
As per her evidence, he inserted hi his penis in her mo mouth. She
pushed pushed him away away. Theref Therefore ore,, he got very angry angry.. He said, said, “mai “main n aapko dikhata hoon hoon”. Then he punched punched her on her back and forced forced her to sit on her knees and inserted inserted his penis in her anus. anus. She was crying crying asking him to stop but he did not. Then he pushed her on the cement block and raped her by inserting his penis in her vagina. After satisfying his lust in every way, way, he asked her to put on her clothes and also to dust off her clothes so that it does not seem like anything anything has happened. happened. Then the mustached mustached guy i.e. accused No.4-Mohd.Salim No.4-Mohd.Salim came inside and took her photographs on mobile and an d at that that time time the perso person n weari wearing ng maroo maroon n T-shi -shirtrt-ac accu cuse sed d Chan Chand, d, juvenile-in-conflict-with-law put the light light of torch on her face.
49
71.
It is is her ev evidence th that, af after ta taking th the ph photographs, mu mustached
guy guy i.e. i.e. accu accused sed No.4-M .4-Mohd ohd.S .Sal alim im threa threaten tened ed her her an and d Anur Anurag ag not to disclose disclose to anyone. anyone. The mustached mustached guy and the fat guy i.e. i.e. accused No.4 No.4 Mohd.Salim and accused No.3-Mohd.Kasim both said to her that they had video-shooted entire incident on mobile and if she complains to police, they will put it on Internet. Hence, she got very scared. The mustached guy i.e. accused No.4-Mohd. Salim took her to Anurag and asked them to check up their their bags to see everyth everything ing is there. there. Then they they took both of them to the entrance from where they had come. come. They waited to see that no goods train were there. When there were no trains, they told them to go towards Mahal Ma halaxm axmii Railwa Railway y Statio Station n and they they went went towar towards ds Lo Lower wer Parel Parel Railwa Railway y Station.
72.
This part of the evidence of prosecutrix again gets total
corroboration corroboration from the evidence evidence of P.W.17.W.17-Anurag Anurag who has deposed that after after the third third person person i.e. i.e. accuse accused d No.3-K o.3-Kasi asim m and the first first person person i.e. i.e. accuse accused d No.4-M o.4-Mohd ohd.S .Sali alim m took took prosec prosecutri utrixx inside inside behind behind the wall, wall, the seco second nd pers person on i.e. i.e. accu accuse sed d No.1o.1-Vi Vija jay y, fourt fourth h perso person n i.e. i.e. juven juvenil ilee-in in-conflict-with-law and fifth person i.e. accused No.2-Siraj continued to sit with him. He also started shouting “bachao bachao” bachao”, however, however, the second person i.e. accused No.1-Vijay assaulted him on his stomach and threatened
50
him that if he shouted more, he will kill him there itself.
73.
As pe per hi his fu further ev evidence, th then th the fi first pe person wh who wa was wi with
mustache i.e. accused No.4-Mohd.Salim No.4-Mohd.Salim came outside, from behind the wall and at that time, he heard the scream scream of prosecutrix. prosecutrix. Therefore Therefore,, he asked accused No.4-Mohd No.4-Mohd Salim Salim what happened. He said to him that inquiry was going on. Then the first person i.e. accused No.4-M No.4-Mohd. ohd. Salim, went behind the wall and thereafter the th e third person i.e. accused a ccused No.3-Mohd.Kasim No.3-Mohd.Kasim came outside outside from behind the wall. He said said to Anurag that, “woh “woh bhi kuch nahi bol rahi, tum bhi kuch nahi bata rahe ho, tum donoka kuch karna kar na padega.”. padega.”.
74.
Then the th third person i. i.e. ac accused No No.3-Mohd.Kasim se sent th the
fourth person i.e. juvenile accused in conflict with law and said, "ab tu andar ja ke inquiry kara ke aa". aa". As per his evidence, then the first person i.e. accused No.4-Mohd.Salim came out and the second person i.e. accused No. 1-Vijay went inside. inside. Then fourth person i.e. juvenile accused in conflict with law came out and said that, “ladki barabar bol nahi rahi hai”. hai”. Then the third person i.e. accused No.3-Mohd.Kasim No.3-Mohd.Kasim said to fifth person i.e. accused No.2No.2Siraj Siraj to go inside. inside. The second second person i.e. accused accused No.1No.1-Vij Vijay ay came out. Then the third person i.e. accused No.3-Mohd.Kasim asked him whether, “ladki ki inquiry thik tarah se ki kya” and accused No.1-Vijay said that, “ladki
51
thik tarah se bol nahi rahi hai”. hai”. Then the third person person i.e. accused No.3 No.3-Mohd Mo hd Kasim Kasim said that he will will again go inside and make inquiry inquiry.. As per evidence evidence of P.W.17-An .W.17-Anurag, urag, thereupon thereupon all those persons persons started started laughing. laughing. Out of them, one person said, said, “bhai “bhai jaldi karo der ho rahi hai”. hai”. Then the third person i.e. accused accused No.3-Moh No.3-Mohd.Kas d.Kasim im went inside. After some time, third and fifth person came outside along with the prosecutrix.
75.
Thus th the en entire se sequence of of th the ev events an and in involvement of of th the
accused, accused, as stated by prosecutrix stands completely completely corroborated corroborated from the evidence of P.W P.W.17-Anurag. .17-Anurag. As per his evidence also, when prosecutrix came out, she was very frightened frightened and was crying. Seeing Seeing him, she immediately immediately held his hand tightly tightly. He asked asked her what has happened but she did not say anything, she was just crying. Thereupon the third person i.e. i.e. accused No.3No.3Mohd.Kasim said to them not to create noise and they were allowing them to go. Then Then all the the five five perso persons ns broug brought ht him an and d pros prosec ecut utrix rix upto upto the railway track from where they had entered into Shakti Mill compound. Before Before they enter on the railway track, accused No.3-Mo No.3-Mohd.Kas hd.Kasim im asked to confirm confirm whether whether there there was no one outside outside.. Then Then the second second and fourth person i.e. accused No.1-Vijay and juvenile-in-conflict-with-law went ahead and an d saw saw that that no on one e else else was there. there. Then Then they broug brought ht them upto upto the railway track and told them to proceed towards Mahalaxmi Railway Station
52
and those five persons per sons went towards another direction of Lower Parel.
76.
As pe per fu further ev evidence of of P.W.17-Anurag, it it wa was ar around 7. 7.15
p.m. p.m. As prosecutrix prosecutrix was still still crying, crying, he asked asked her what what has happened happened.. She looked behind to see whether there was anybody and then she told him that those those five persons persons have raped raped her one by one and she was bleedin bleeding. g. She told him that it was paining a lot and she requested him to take her to the hospit hospital. al.
Accor Accordin ding g to P.W P.W.17 .17-An -Anura urag, g, he was mentall mentally y shocked. shocked.
He
immediately called P.W.5-Tejal madam on phone and asked her where she was.
She told him that she was still in office.
He told her to come
immediately near Mahalaxmi Mahalaxmi Railway Station. They took a cab and started proceeding towards Jaslok Hospital. On the way, way, they collected P.W P.W.5-T .5-Tejal ejal madam madam and one more more colle colleag ague ue Yas Yasha hasv svii in the cab. cab.
In the taxi taxi also
prosecutrix was crying. Hence, Tejal madam asked her what has happened. Prosecutrix Prosecutrix told told her that five persons have committed committed rape on her. By that time, there was a phone call from prosecutrix's mother and prosecutrix and Tejal ejal madam madam told told prosec prosecutri utrix's x's mother mother to come come immedi immediatel ately y to Jaslok aslok Hospital.
77.
As pe p er th t he ev e vidence o f pr prosecutrix al a lso, on o n th t he wa w ay to towards
Mahalaxmi Railway Station, as she was crying, Anurag asked her what has
53
happened and she told him that all those five persons raped her on the cement block inside the room. Anurag then called P.W P.W.5-T .5-Tejal ejal and told her to come to Mahala Mahalaxm xmii Railw Railway ay Station Station.. After After they came at Mahala Mahalaxmi xmi Railway Railway Station, Station, as she was undergoing undergoing lot of pain and bleeding, bleeding, she told Anurag to take a cab to Jaslok Hospital. On the way, way, they picked up P.W.5.W.5Tejal and Yashasv Yashasvi. i. In the cab, P.W P.W.5-T .5-Tejal ejal asked aske d her what has h as happened happe ned and she told her that that all the five persons persons have have raped her. her. She also also called called her mother on phone and told to ld her to come to Jaslok Hospital.
78.
This pa part of of th the ev evidence of of pr prosecutrix an and P. P.W.17-Anurag is is
fortified fortified through through the evidence evidence of P.W.5-T .W.5-Tejal ejal who has stated stated that after she sent SMS of “Please call” to prosecutrix at about 6.29 p.m., there was no reply or call from her side. side. Thereafter at about 7.20 to 7.25 p.m, p.m, she got a call from P.W.17-Anurag. .W.17-Anurag. Anurag asked her where she was and she replied that she was in office. office. Anurag Anurag then told her on phone to immediately immediately rush rush to Mahalaxmi Railway Railway Station. Station. She asked him what had happened but he said that he cannot tell her on the phone what had happened and she should come come imme immedi diat atel ely y near near Ma Maha hala laxm xmii Rail Railwa way y Stat Statio ion. n.
Sayi Saying ng so so,, he
disconne disconnecte cted d the phone. phone. There Therefor fore e she herself herself and her friend-Y friend-Yash ashasv asvii started walking towards towards Mahalaxmi Railway Railway Station. On the way, way, they met Anurag and prosecutrix. They were in taxi. She herself and Yashasvi sat in
54
the said said taxi. Prosecutrix Prosecutrix was sitting sitting on the the back seat. seat. She was was extremely extremely frightened frightened and crying. crying. She asked asked the prosecutrix prosecutrix what has happened happened and prosecutrix told that she was raped by five men in the Mill Compound. Compound.
79.
As per evidence of P.W.5-Tejal, she was completely shocked
when she heard it. She also noticed that prosecutrix was in a very bad state. She was trying trying to tell tell her what has happened. happened. Hence Hence,, she comfor comforted ted her and told told her to calm down. down. She also also told that that she does not have have to talk about it immediately. immed iately. As per evidence evide nce of P.W P.W.5-T .5-Tejal ejal also, while they were in taxi, mother of the prosecutrix called her on mobile. mobile. Prosecutrix picked up the phone but could could not talk much. much. Hence, Hence, she spoke with with her mom and told her, “please come to Jaslok Jaslok hospital”. hospital”. After some time, prosecutrix also got a phone call from her uncle and she told him also to come to Jaslok hospital.
80.
Again thi this par part of th the evi evidence of pr prosecutrix, P. P.W.17-Anurag
and P.W.5-Tejal gets clinching support from the evidence of P.W.4-mother of the prosecutrix, who has stated that after the prayers in Church were over at about about 7.30 7.30 p.m., .m., she she again again call called ed her her daug daught hter er-p -pros rosec ecut utrix rix on phone phone.. Prosecutrix Prosecutrix picked picked up the phone and was crying. crying. She said to her on phone, phone, “mummy “mummy,, I am going to Jaslok hospital”. hospital”. As per her evidence, she asked her
55
daughter what had happened but she kept on crying. Hence, she asked her, her, “baby who is with you? Give phone to that person” person”. Then her daughter gave phone to a female person with her. She asked her who was she and she told her name as Tejal. She asked her, what has happened and Tejal told her, “Aunty just come to Jaslok hospital”. hospital”. As per the evidence of P.W P.W.4, .4, she was frightened frightened and started started crying. She called called then on phone Agnel Agnel uncle. He He tried to console her and told her to wait outside the Church and he will be coming there. It is deposed by her that meanwhile she got SMS on her mobi mobile le from from prose prosecu cutri trixx sayi saying ng,, “mumm mummy y come come to Jaslo aslok k ho hosp spit ital al””. Accordingly after Agnel uncle came, they took the rickshaw to Bandra and from there taxi and came to Jaslok hospital.
81.
This oral evidence again gets total corroboration from the
contemporaneous documentary evidence like the call detail records of the phone calls exchanged between P.W.5-T .W.5-Tejal ejal and P.W.17-Anurag. .W.17-Anurag. The call detail detail recor records, ds, Exh.11 Exh.114 4 and Exh.11 Exh.116 6 produc produced ed and proved proved throug through h the evidence of P.W.26-Vikas .W.26-Vikas Phulkar, Nodal Officer of Vodafone company go to prove prove that the first call was made by P.W P.W.16-A .16-Anurag nurag from his mobile No. 9673980240 to P.W.5-T .W.5-Tejal ejal on o n her h er mobile No.9819783639 at about 19.22 hrs hr s of 32 seconds duration. dura tion. Whereas second se cond phone phon e call was made by P.W.5-T .W.5-Tejal ejal on her her mobi mobile le No.981 .98197 9783 8363 639 9 to P.W.1 .W.177-An Anur urag ag on his his mobi mobile le No.
56
9673980240 at 19.23 hrs. hrs. of 90 seconds duration. The third phone was made by P.W P.W.17-Anur .17-Anurag ag to P.W.5-T .W.5-Tejal ejal at 19.28 19 .28 hrs. h rs. of o f 17 seconds second s duration du ration..
82.
There is also corroborating evidence to the fact that her mother
had called prosecutrix and prosecutrix had called her to come to Jaslok hospital that is the call details records-Exh.113 and Exh.115 produced by P.W.26-Vikas .W.26-Vikas Phulkar, Nodal Officer of Vodafone Vodafone company. As per the said call detail records, there was a call made from mobile No.9819603386 of P.W. 4-mother of the prosecutrix to prosecutrix on her mobile No.9930860344 at 19.30 hrs. of 31 seconds duration and then th en there was SMS from prosecutrix's mobile to her mother's mobile at 19.41 hrs.
83.
Taking the prosecution case further, there is evidence of
prosecutrix, P.W.17-Anurag and P.W.5-Tejal to the effect that they reached to Jaslo aslok k hospi hospita tall at abou aboutt 7.45 7.45 p.m. .m. As per per the evid evidenc ence e of P.W.5 .W.5-T -Tej ejal, al, prosecutrix was in lot of pain and, therefore she could not walk on her own. Hence Hence she held her hand and took her to the casualty ward. ward. There There she met the doctor and told her to examine her and start start the treatment. Accordingly doctor examined her and started the treatment. She waited there there for a while and then prosecutrix's mother came there.
57
84.
Prosecutrix ha has al also de deposed th that wh when th they re reached at at Ja Jaslok
hospital, hospital, she told the doctor everything everything that had happened. Thereafter Thereafter the police came and recorded recorded her complaint vide Exh.39. It is is her evidence that she has given the contents of complaint in English and Hindi language. Police Police have recorded recorded it in Marathi. Marathi. They explained explained it to her in Hindi and finding finding the contents contents correct, correct, she has signed signed on it. She has further further stated stated that as she was physically physically in pain and also under mental trauma, trauma, she could not give all the facts facts at that time. time. Hence, her her supplementary statement was recorded on 23/08/2013 by another anoth er female police officer. officer.
85.
Again this part of the evidence of prosecutrix gets support from
the evidence evidence of P.W.17-A .W.17-Anurag nurag who has stated that when they reached in Jaslok hospital, he and Tejal madam took the prosecutrix in casualty ward. Then Tejal Tejal madam took prosecutrix prosecutrix inside the casualty casualty room. After some time prosecutrix's mother and uncle uncle came there. Prosecutrix's mother went inside the casualty room and he talked with her uncle outside. He told him in brief what has has happened. Prosecutri Prosecutrix's x's mother mother then came out and and she was also crying.
86.
Thus, as regards the actual incident of rape, evidence of
prosecutrix stands at each and every stage corroborated not only from the
58
evidence of P.W.17-Anurag .W.17-Anurag who was with her but also from the evidence e vidence of P.W.5-T .W.5-Tejal ejal and P.W.4-he .W.4-herr mother. mother.
It stands further fortified fortified from the
contemporaneous documentary evidence viz. call detail records which are produced on record by the prosecution. Even the evidence of prosecutrix that pornographic clip was shown to her at the time of incident by a mustached person i.e. accused No.4-Mohd. Salim and she was asked to do as depicted in that pornographic clip stands corroborated from the said pornographic clip which prosecution has retrieved in the pen drive-Exh.5-1 and it was shown to prosecutrix during the course of evidence on laptop and she has identified that it is the same pornographic clip shown to her by accused accused No.4-M No.4-Mohd.S ohd.Salim. alim. Her instant instant reaction to the said pornographic pornographic clip in evidence before the Court, like feeling vomiting and then not keeping well, again completely reflects the trauma which she has undergone at the time of incident.
87.
As a ma matter of of fact in th this case what more evidence is required in
addition addition to the testimony testimony of prosecutrix prosecutrix ? As per the settled settled law also, also, the sole testimony of prosecutrix is sufficient to prove the guilt of the accused in sexual offences. Insisting on corroboration corroboration to her testimony is adding insult to her injury. injury. In the words of Apex Apex Court in landmark landmark decision of State State of "why her evid evidence ence should should be Punjab V Gurmit Singh, AIR 1996 S.C.1393 "why
59
view viewed ed with with susp suspic icio ion n or disb disbel elie ieve ved, d, as no wo woma man n will will make make such such accusation casting aspersion on her character and thereby allowing her to be stigmatized".
88.
Here pr prosecutrix has ab absolutely no reason to to do do so so. Her en entire
testimony has a ring of truthfulness, a colour of consistency and a sense of stra straig ight htfo forw rwar ardn dnes esss.
Her ho hone nest sty y an and d her her trut truthf hful ulne ness ss is exud exudin ing g
throughout throughout each and every word word spoken by her. her. The trauma trauma faced by her reliving the entire incident at the time of giving evidence in the Court, is so touching and heartrending that no one can afford or dare to disbelieve her.
89 .
Defence Co Counsels ha have al also no not be been su successful in in an any wa way
discrediting her testimony despite exhaustive cross examination conducted by them on each and minute detail of the incident. Therefore, as a matter of fact when her evidence is standing standing like a rock, there there is no need at all to look for for corr corrob obor orat ativ ive e eviden evidence ce in an any y way way to ho hold ld the pros prosec ecut utio ion n case case as proved. It is apart that, as discussed above, her evidence is also completely corroborated from the evidence of Anurag, her mother, her boss Tejal and the call detail records of the phone calls exchanged amongst them.
90.
In ad a ddition to that th t here is al a lso ample evidence o n re record
60
brought brought by the prosecution prosecution which lends support and further further corroborati corroboration on to her case, if at all any such corroboration is required.
MEDICAL EVIDENCE:91.
The first, foremost an and a very strong corroboration is coming to
her evidence from the medical evidence which is completely in tune with and an d go goes es hand hand in hand hand on all all the the aspe aspec cts with with the the evid eviden enc ce of the the prosecutrix. As stated above, after the prosecutrix along with P.W.17.W.17- Anurag and P.W P.W.. 5 Tejal reached in the hospital, she was taken to the Casualty Ward. Ward. There P.W P.W.40 .40 Dr.Nisha Dr.Nisha Singh was on duty from 2.00 p.m. to 10.00 p.m. in the Emergency Medical Services. As per her evidence, on that day at about 7.55 p.m. .m. on one e youn young g girl girl of 22 year yearss came came alon along g with with a male male coll collea eagu gue e to Emergency Medical Services. She was complaining of bleeding and pain in her private part. She was also accompanied with two female colleagues. She took her inside and asked others to wait out side. Then she asked her what has happened. She told her that she had been sexually assaulted by five unknown persons, both in natural and unnatural way. On hearing this, she asked her name and address. She wrote it down in the Register. Register.
92.
It is is de deposed by by he her th that as as th the pr prosecutrix wa was su suffering fr from
pain, she started her on the pain killer and called called P.W.-39 .W.-39 Dr. Asmita Patki
61
who was on call in Gynecology Department and told her what said girl, namely namely, the prosecutrix prosecutrix had informed informed her. her. P.W. .W. 39 Dr. Dr. Asmita Asmita Patki Patki told P.W.-40 .W.-40 Nisha Nisha Singh that she will be coming. By that time she asked the prosecutrix to remove the pant in order to examine her and she saw whitish and reddish stains on the inner parts of her thighs. She also noticed injuries over her both the knees and right elbow elbow. There were injuries on her private part part and on her back also also, like like abrasi abrasion on at L1 and L2 L2.. While While she was examining her, P.W.-39 Dr. Asmita Patki arrived and she continued further examination along with Dr. Poornima Satoskar.
93 .
Here th the vi vital ev evidence of of P. P.W.39 Dr Dr.Asmita Pa Patki co comes in into
picture. She has corroborated evidence of P.W.40 Dr. Nisha Singh by stating that on that day at about 8.00 p.m. she received phone call from Dr. Nisha Singh from Casualty Ward who told her that a 22 year old female has come to the Casualty Ward Ward with the history of sexual assault by five unknown men. Hence she came to the Casualty Ward which is also called as Emergency Medical Services. There she saw a 22 year girl was lying lying on the bed. She was complaining of pain and bleeding from private part. She confirmed her name and asked her the history of whatever has happened. The prosecutrix prosecutrix told her that she has been sexually assaulted by five unknown men at Shakti Mill near Mahalaxmi railway station by natural and unnatural way. way.
62
94.
Accordin ding to P.W.39 Dr Dr. As Asmita Patki, pr prosecutrix rix wa was fri frig ghte htened
and constantly complaining of pain and bleeding in private part. She also noticed some mud stains and blood stains on her clothes; blood and whitish stains on the medial aspects of both the thighs. She was having bleeding per vagina through through her private part. Then Then she called called up her Consultant Consultant on call, Dr. Purnima Satoskar and along with her, she examined the prosecutrix externally. On external examination, she noticed on right elbow there was 1 x 1 cm. abrasion. On both the knees there was abrasion surrounded by bleeding bleeding points. On the back at the level of L1, L2 spine, spine, there was abrasion which was surrounded by bleeding points and one more abrasion was found on left buttock.
95.
As per he her fu further ev evidence, sh she an and Dr Dr.Satoskar to took co consent of of
the prosecut prosecutrix rix for internal internal examin examinati ation on and for collecti collection on of sample samples. s. Then she requested the prosecutrix to undress. On internal examination cond conduc ucte ted d un unde derr loca locall an anes esth thes esia ia,, she she found found mino minorr abra abrasi sion on on labi labia a minora and minor abrasion on vestibule. There was fresh tear at 6 O' clock position of hymen which was freshly bleeding. In anal area there was 6 and 7 o'clock position abrasion present.
96.
Just to t o ha h ave a look at a t th t he se s erious na n ature of o f th the in i njuries to to
63
understand the gravity of the offence and also to rule out the defence raised by accused that those injuries might have been caused in love making/rape by Anurag, it would be helpful to reproduce the findings of the medical examination examination of the prosecutrix prosecutrix as conducted conducted by P.W P.W.39 .39 Asmita Asmita Patki Patki and reflected in the certificate(Exh.163) prepared simultaneously, simultaneously, as follows:Type of Injuries
Description of Injuries
External Injurie ries
1) Right elbow- approx 1 cm. reddish abrasion. 2) Graze abrasions present over both knees. i) Right knee- 1 x 1 cm with reddish surrounding area. ii) Left knee - 2 x 1 cm with reddish surrounding area. 3) Back - In middle over spine of L1-L2 ~ 2 cm in diamet diameter er abrasi abrasion on presen presentt surroun surrounded ded by multip multiple le graze abrasions with bleeding points. aist - Graze abrasion present just below waistline 4) W 4) Waist over left buttock.
Local injuries
1) Perineum - Reddish bruise ~ 3cm, diffuse Dried reddish blood stains present on medial aspect of thighs. 2) Labia Minora - congested, oedematous, bruised 3) Vestibule Vestibule - minor abrasion present. 4) Hymen - ruptured, edges torn Fresh resh tear tear at 6' o cloc clock k posit positio ion n with with oo oozi zing ng fres fresh h blood. Suggestive of penetrating injury injur y and forcible entry. entry. Per vaginal examination was not possible due to severe pain. One finger examination attempted but could not be done as it was painful. abrasions at 6 and 7' o clock position, 5) Anus - Small abrasions linear ~ 3 x 6 mm in dimension, reddish in colour.
Examination 1) Small abrasions at 6 and 7' o clock position at the under anesthesia anal verge extending to dentate line, no bleeding, less
64
than a day old. 2) Small mucosal contusion at 6' o clock. Proctoscopy - No e/o injury. 3) Hymen torn, superficial laceration present. Vaginal mucosal abrasion. 4) Vaginal Vaginal mucosal fresh laceration tear extending 5) Vaginal from 4-7' clock, covered with clot. aginal mucosal fresh laceration from 11-1' o clock 6) V 6) Vaginal present, covered with clot. Denudation of vaginal vaginal mucosa mucosa circumfe circumferentia rentially lly 7) Denudation present forming whitish membrane.
97.
Needless to sa say th that pr presence of of al all these in injuries, both ex external
and internal, completely corroborates the evidence of the prosecutrix about the brutal and inhuman manner in which she was sexually ravished and assaulted by five five accused persons in natural and unnatural way. way. Hence, the the contention raised by Learned Counsel Shri Salsingikar for accused no.1 that medical evidence is not as weighty as is expected to be, can hardly be accepted. The defence taken by the accused in the cross-examination of P.W. 39 Dr.Asmita Dr.Asmita Patki that rupture of hymen is possible po ssible if the sexual intercourse is with the virgin girl and there are chances of heavy bleeding in that case also, also, totally totally falls on on the ground. ground. Defence Defence has attempte attempted d to suggest suggest that it was P.W.17 .W.17 Anurag who might have committed sexual intercourse with the prosecutrix prosecutrix in Shakti Mill premises premises and that may be the cause of rupture rupture of hymen and the bleeding. As a matter of fact on the basis of testimony of the
65
prosecutrix prosecutrix and P.W. .W. 17-Anurag, 17-Anurag, this defence defence hardly hardly lies, but just it should not happen, that the Court has not considered this aspect, I am discussing it.
98.
In cross-examination of P.W.40 Dr.Nisha Singh, who has
medically examined Anurag about external injuries sustained by him it was put to her that she has not carried out his examination from the aspect aspect that he might have committed rape or sexual intercourse with the prosecutrix in love making. Needless to state that this defence does not hold any ground in the face of positive positive evidence evidence of the prosecutrix prosecutrix and the medical medical evidence which is brought on record through the evidence of P.W.39 .W.39 Dr.Asmita Dr.Asmita Patki proving that she was ravished sexually by five persons.
99.
As s ta tated above, the sort of i nj njuries which prosecutrix h as as
sustained to her private parts both to vagina and anus are hardly possible in the incident of love making.
100.
Even oth otherwise als also, if it it was was lov love mak making by P.W.17 Anu Anurag,
there was no earthly reason for the prosecutrix to concoct such false case which is bound to subject her also to this agony and untold trauma along with humiliation and embarrassment to go through entire process of the
66
investigation and trial. Moreover no such suggestion is put to either Anurag or to prosecutrix of Anurag making love to her or committing rape on her, as the defence itself is very much aware that this suggestion is so outrageous and ludicrous that it will never stand the test of judicial scrutiny or the test of reasons or common sense.
101.
Therefore, it it is is cl clear th that ju just for for the sak sake e of of it it P.W.39 Dr Dr.Asmita
Patki is cross-examined on the point that these injuries were possible in the first sexual intercourse with the virgin girl. The evidence evide nce of P.W.39 .W.39 Dr.Nisha Dr.Nisha Singh also goes to reveal that abrasion at 6 and 7 O'clock position at anus with reddish colour indicates forceful penetration through anus whereas fresh fresh tear tear at 6 o'cloc o'clock k positi position on in hymen hymen indica indicates tes forcef forceful ul penetra penetrativ tive e sexual sexual intercou intercourse rse.. There There is also also final final opinion opinion Exh.16 Exh.167 7 on recor record d to that effect which rules out even the remote possibility of these injuries being caused in love making or in sexual intercourse by one person.
102.
As regards the suggestion put by the the defence Counsel that
vaginal bleeding may be due to menstrual cycle, again this suggestion is totally incompatible and outlandish. If it was the case, there would not have been been an any y inju injury ry no noti tice ced d on her her priv privat ate e part part.. Defe Defenc nce e Cou ouns nsel elss are are forgetting the essential scientific knowledge or basic information that in
67
bleeding bleeding at the time of menstrual menstrual cycle there are no injuries to private part. In cross-examination, P.W.40 .W.40 Dr.Nisha Singh has also denied the suggestion that that blee bleedi ding ng from from prose prosecu cutri trix' x'ss priva private te part part was was of mens menses es.. P.W.3 .W.39 9 Dr.Asmita Patki has also denied the suggestion that during the menses white membra membrane ne discharg discharge e can also also be possibl possible. e. She has further further denied denied the suggestion that during the menses, labia minora becomes tender.
103. 10 3.
A sugge uggesstion tion is then hen put to P.W.39 .39 Dr.Asmi Asmita ta Patki tki tha that in case case of
a person wearing the jeans pant immediately after the occurrence of injury, it may get stained with blood. It is submitted that in this case cream pant of the prosecutrix was not having bleeding stains. In my considered opinion, all these supposed considerations are totally irrelevant and misplaced. They have no place in appreciation of evidence in respect of the sexual offences. offences. The The Cou ourt rt has has to be reali ealisstic tic when when no dent dent is made ade in evide videnc nce e of prosecu prosecutrix trix and other other witnes witnesses ses.. Mo More reov over er,, the medica medicall evidenc evidence e is so strong that that none of these contentions contentions even hold hold any ground. It is also not that the clothes were not having any stains of the bleeding or of white dischar discharge ge.. Her knicker knicker was stained stained with blood and smear smeared ed with with white white discharge.
68
EVIDE EVIDENCE NCE RELATIN RELATING G TO SEIZUR SEIZURE E PANCHAN ANCHANAMA AMA OF CLOTHE CLOTHES S OF PROSECUTRIX: 104.
The rec recovery Pa Panchanama of th the clo clothes of th the pro prosecutrix,
which is made immediately after the incident is again a strong circumstance to clinch the prosecution case. It is deposed by the prosecutrix that at the time of incident she was wearing black colour colour T-shi T-shirt, rt, cream colour colour pant, cream cream colour belt, brown brown colour shoes shoes and pink and white socks. socks. She has identified these clothes when they were shown to her in evidence before the Court as Muddemal Article Nos.5 to 10 and shoes as Muddemal Article No. 11.
105.
It is ev evidence of P. P.W.39 Dr D r. Asmita Patki that at the time of
carr carryi ying ng ou outt inte intern rnal al exam examin inat atio ion n of the the pros prosec ecut utri rixx she she reque equest sted ed prosecutrix to undress and kept her clothes in the plastic bag which was sealed and kept next to the patient. It is brought brought in evidence of P.W.41 .W.41 PSI Shamrao Patil that, after recording of the complaint of the prosecutrix and registering the offence, he has told P.W.39 .W.39 Dr.Asmita Patki to give the clothes of the prosecutrix for the purpose of investigation. Dr.Asmita Patki told him to wait outside for sometime and thereafter Nurse Preeti Kadam produced the clothes of the victim girl in plastic bag. Then he called two ladies to act as Panch nchas and in their presen esenc ce he seized tho hosse clothes under
69
Panchanam Panchanama. a. It was prepared there there itself as per Exh.36. Accordin According g to him, Panchanma(Exh.36) was completed at about 1.00 a.m. Then he came to the Police Station along with seized articles. He has identified those clothes of the prosecutrix in evidence before the Court as Muddemal Article Article Nos. 5 to 10.
106.
P.W.5 Te Tejal is is on one of of the the Panch to to th the se seizure Pa Panchanama of of th the
clothes of the prosecutrix. As deposed by by her, her, she was there in the hospital till 1.00 O’ clock clock in the night. She has stated stated that at about 9.00 p.m. p.m. police police came there and they told her to wait outside. Lady Police Officer then recorded the statement of the prosecutrix in presence of Doctors, which took two hours. Then police requested her and her colleague Karanjeet Kaur who was present there, to act as a s Panchas to the seizure Panchanama of the th e clothes of the prosecutrix. Police Police then asked the Doctor to know know whether he can have the clothes of the prosecutrix which she was wearing at the time of incid incident ent.. Dr.A Dr.Asm smit ita a Patki atki aske asked d them them to wait wait ou outs tsid ide e an and d then then afte afterr sometime Nurse handed over totally six clothes to the Police. Those clothes were black colour T-shirt, cream colour full pant along with brown colour belt, cream colour bra and white colour underpant.
107 .
It is is fu furth rther de deposed by by he her th that sh she sa saw th that cr cream co colour fu full
70
pant had some blood stains and white stains. The underwear was also completely soaked in blood and was having some white stains. The bra also had some white stains on it. There was also a pair of pink and white colour socks which had some some soil stains on it. As per her her evidence evidence these these clothes clothes were handed over by the Doctor to the Police in their presence. The police sealed those clothes in brown paper separately and thereafter affixed labels of their signatures on it and prepared Panchanama which she has signed vide Exh.36. She has identified all these Muddemal Articles Nos. 5 to 10 before the Court and her signatures on the labels of said articles.
108.
There is nothing in cross-examination of this witness to
disb disbel elie ieve ve her her an and d otherw otherwis ise e also also she bein being g the the na natu tura rall witn witnes ess, s, her her presence in the hospital can in no way be doubted as she has brought the prosecutrix to the hospital along with P.W P.W.-17 .-17 Anurag and she is bound b ound to be concerned till prosecutrix is recovered. As per evidence of P.W P.W.39 .39 Dr.Asmita Dr.Asmita Patki and P.W.40 Dr. Nisha Singh the condition of the prosecutrix was such that she was withering with pain, therefore, therefore, internal examination had to be carried out under und er local anesthesia. Naturally, Naturally, this witness P.W.5 .W.5 Tejal Tejal was bound to be there.
109.
In cro crosss-examination of th this wi witness, sh she ha has gi given th the de detai tails at at
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which portions she found white stains and blood stains on o n the pant, bra and under un derwe wear ar,, whic which h furth further er forti fortifi fies es her her pres presen ence ce at the the time time of seiz seizur ure e Panchanama of the clothes of the prosecutrix. This presence of the blood stai stains ns an and d whit white e stai stains ns on the the clot clothes hes of the the pros prosec ecutr utrix ix gives gives furth further er corroboration to the occurrence of the incident and the evidence of the prosecutrix that accused had ejaculated at the time of sexual intercourse and there was bleeding from her private part due to sexual assault.
110.
Evidence of of pros rosecutrix rix that at at the the time of of inciden dent ac accused No No.
3 Mo Mohd. hd. Kasim wiped wiped his penis with her socks socks gets further further support support and corr corrob obor orat atio ion n from rom this this seiz seizur ure e panc pancha hana nama ma of the the clot clothe hess of the the prosecutrix, prosecutrix, which which shows that there there were white white stains on the socks of the prosecutrix. The contention that how prosecutrix can wear the socks if the accused no.3 had wiped his penis with it, is equally irrelevant, in the face of situation as to whether she had any other option than to do so ? If she had to walk on the way from the spot to the railway station she had to wear the socks and the shoes.
111.
The fu further co contention th that ho how sh she ca can wa walk fr from th the sp spot to to
the Railway Station if she was suffering from pain and bleeding, is also required to be rejected because otherwise, she had no other option. How
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she can get a cab unless unless they walk walk up to the road? Even if one one is suffering suffering from pain or bleeding, that person has to walk with that suffering till the vehicle vehicle is found. The very fact that she told Anurag to take her immediately immediately to the hospital and they rushed to the Hospital makes it abundantly clear that she was suffering from severe pain and she needed immediate medical treatment. The medical evidence discussed above, also gives the extent of injuries which she has suffered in the incident. Hence there has to be pain, bleeding and suffering. Therefore there is absolutely nothing unnatural in any part of the evidence as given by the prosecutrix.
PROMPT LODGING OF FIR:112.
If at at al all an any fu further co corroboration is ne necessary, ry, tth hen it it is is al also
coming from the prompt lodging of FIR which contained all the details of the incident with the specific role played by each of the accused persons invo involv lved ed in the the inci incide dent nt an and d each each of them them is late laterr iden identi tifi fied ed by the the prosecutrix and P.W.17-Anurag in test identification parade and in evidence before the court.
113.
As st stated ab above, af after th the pr prosecutrix rix an and P.W.17-Anurag cam came e
to the hospi hospita tall with with the the comp compla laint int that that pros prosec ecutr utrix ix has has been been sexu sexual ally ly assaulted by five unknown persons both in natural and unnatural way, P.W.
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40-Eme 40-Emerge rgency ncy Medical edical Office Officerr Dr.N Dr.Nish isha a Singh Singh has immedi immediate ately ly called called Dr.Asmita Patki and Dr. Poornima Satoskar for medical examination of the prosecutrix and simultaneously made phone call to N. M.Joshi Marg Police Station. Station. P.W.41 .W.41 P.S.I. Shamrao Shamrao Patil Patil was on phone. phone. She told him about the incident.
114. 11 4.
It is is dep depos osed ed by P.W. 41 41 P.S.I .S.I.. Pat Patiil al also that that on 22.8. 2.8.20 2013 13 he was was
on night duty as SHO from from 8.00 p.m. p.m. to 8.00 a.m. on the next day along with A.P.I. A.P.I. Rasal and P.I. Mane. On that night at about 20.40 hours P.W.40 .W.40 Dr. Dr. Nisha Singh from Jaslok Hospital informed him on phone that Anurag and his female colleague i.e. the prosecutrix had gone to Shakti Mill premises for photo shoot for the project work, there at about 7.00 p.m. five unknown persons had assaulted Anurag and committed rape on the prosecutrix.
115. 11 5.
Accordi ording ng to the the evi evide denc nce e of of P.W.4 .W.411-P P.S.I .S.I.. Pat Patil il,, he he ma made stati tation on
diary entry to that effect which is produced on record vide Exh.170, gave intimation of this incident to P.W.43 P.I. Mane and Sr.PI Gharge. Then along with P.I. Mane he went to Jaslok Hospital to verify the information. He reached in Jaslok Hospital at about 9.00 p.m. There he met P.W.40 Dr.Nisha Singh Singh,, made inquiry inquiry with her about the prosecu prosecutrix trix.. She told told him that prosecutrix was being given treatment in emergency Ward. Then at about
74
9.20 p.m. P.W P.W.38 .38 WPSI Priyanka Mhatre from Atrocities Against Women Cell reached to the Jaslok Hospital as PI Mane told her that lady Police Officer of N. M. Joshi Marg Police Station was on leave and, therefore, she should assist P.S.I. P.S.I. Patil in recording statement of the victim girl.
116.
It is deposed by P.W.41-P.S.I. Patil that he himself and WP WPSI
Mhat Mh atre re made made inqu inquiry iry with with Dr. Dr. Nisha isha Sing Singh, h, Dr.A Dr.Asm smit ita a Patki atki an and d Dr. Dr. Poornima Poornima Satoskar about physical physical and mental condition condition of the prosecutrix prosecutrix in order order to reco record rd her her stat statem emen ent. t. They They told told her her that that cond condit ition ion of the the prosecutrix was proper and they can record her statement. Hence at about 9.30 p.m. he himself and WPSI Mhatre started recording the statement of the prosecutrix. prosecutrix. WPSI Mhatre Mhatre was asking questions questions to the prosecutrix and he was writing answers given by her in narrative form. The recording of the statement was continued for for about two hours. Then it was read read over to her by WPSI Mhatre. She had admitted it to be correct and signed thereon on each page of the said statement. The statement which is thereafter treated as complaint is produced on record at Exh.39. As per his evidence also at the time of giving statement victim girl was weeping and she was in a very frightened state.
117.
After reco ecording of of th the co complain aint, he ma made ph phone ca call to to P.W.16-
75
A.P.I. A.P.I. Rasal at N. M.Joshi Marg Police Station giving him information in formation about a bout the incident incident and the recording recording of statement statement of the prosecutrix prosecutrix.. A.P.I. Rasal Rasal gave him C.R.No.2 C.R.No.244/13 44/13 for the offences punishable u/s 376-D, 376-D, 341, 342, 506(II), 34 IPC. Station diary entry was made accordingly. Then after seizure Panch Panchanam anama a of the clothes clothes of the prosecu prosecutrix trix,, he returned returned to the police police station along with seized muddemal articles, seizure Panchama and FIR. There at about 2.00 a.m he filled up the printed proforma of F IR (Exh.39-A) which was signed by him and WPSI Mhatre. On 23.8.2013 it was sent to the Magistrate.
118.
This evidence of P.W.41 P.S.I.Shamrao Patil is again finding
complete corroboration from the evidence of P.W.43 PI Mane who has also stated that on that day while he was on duty at about 8.40 p.m. p.m. P.S.I. Patil Patil informed him about the information received from Dr. Dr. Nisha Singh of Jaslok Hospital. He gave information about the same to his Senior Inspector and along with P.S.I. Patil, he went to Jaslok Jaslok Hospital. Hospital. There There they met Dr.Ni Dr.Nisha sha Singh and made inquiry inquir y with the prosecutrix. prosecutr ix. He also met there P.W.38 .W.38 WPSI Mhatre and told her that she should assist P.S.I. Patil in recording statement of the the pros prosec ecut utrix rix as lady lady P.S.I. .S.I. of thei theirr Polic olice e Stat Statio ion n was was on leav leave. e. Accordingly, Accordingly, P.S.I. Patil and WPSI Mhatre went in the Emergency Ward to record the statement of the prosecutrix.
76
119.
This evidence of P.S.I. Patil and P.I. Mane is getting further
corroboration from the evidence of P.W P.W.38 .38 WPSI Priyanka Mhatre working in Crim Crime e Agai Agains nstt Wom Women en Cell Cell
sinc since e Jun une e 20 2013 13.. Acco Accord rdin ing g to her, her, on
22.8.2013 at about 9.00 p.m. while while she was at home, she received received phone call from WPI Patil Patil of Unit-I. Unit-I. She informed informed her on phone that one victim girl girl in the the case case of offe offenc nce e regi regist ster ered ed at N. M. Jos oshi hi Ma Marg rg Polic olice e Stati tation on was was admitted in Jaslok Hospital and she should go to the Jaslok Hospital and make inquiry whether offence has taken place or not and accordingly to inform the superior officer. officer. As per evidence evide nce of P.W.38 .W.38 WPSI Mhatre she then went to Jaslok Hospital and reached there at about 9.20 p.m. Then Then she went to the Casualty Ward and met there P.I. Mane and P.S.I. Patil of N. M. Joshi Marg Police Station. On the th e request of P.I. Mane, she accompanied P.W.41 .W.41 P.S.I. Shamrao Patil Patil for recordin recording g statement statement of the victim victim girl. Firstly they approached lady Doctor who was in-charge to verify whether the victim girl was in position to record the statement. When doctor said 'yes', both of them went in a room where victim was admitted. She made inquiry with her about the incident and P.S.I. Patil then recorded the statement on the basis of answers answers given given by her. her. As per her evidence evidence at that that time victim victim girl was crying and suffering from pain. She has covered herself with the bed sheet of the hospital. The black colour T-shirt which the victim was wearing was visible. The recording of her statement was completed at about 11.35 to
77
11.40 11.40 p.m. p.m. It was read read over and explaine explained d to her, her, then signat signature uress of the victim were obtained on it and then P.S.I. Patil and she herself signed on the said said stat statem ement ent on every every page. page.
Ther Thereaf eafte terr she she left left the hospi hospital tal after after
informing superiors.
120. 12 0.
Ther here is is al also corro orrobo bora rati ting ng evid eviden enc ce of of P.W.16 .16 A.P A.P.I. .I. Ras Rasal al on thi this
point that on phone, at night he has given F.I.R. No.244/13 to PSI Shamrao Patil and has registered the offence.
121.
In th the co compla plaint(Exh.39) al all th the ma materi erial de detail ails of of the the incident ent
and the involvement of the accused is appearing. Whatever details remained to be stat stated ed in the the Compl omplai aint nt due due to ment mental al cond condit itio ion n in whic which h the the pros prosec ecut utrix rix was, was, are are foun found d refl reflec ected ted in the the suppl supplem emen entar tary y stat statem emen entt recorded immediately on 23.8.2013. Therefore, this prompt lodging of FIR again acts as strong corroborative piece of evidence to the entire evidence of the prosecutrix and the prosecution case as such.
MEDICAL EVIDENCE OF WITNESS ANURAG:122.
Ther here is is fu furthe ther on one mor more e co corroborative pie piece of of evi evidence nce wh which
is medical examination of P.W P.W.17 .17 Anurag. As stated above, P.W.17 .W.17 Anurag has in his evidence before the Court disclosed as to how his hands were tied
78
and an d he was was also also assa assaul ulte ted d with with belt belt by accu accuse sed d No.3 Moh ohd. d. Kasim asim.. According to his evidence, evide nce, he sustained the blow of belt on his left arm and as his hands were tied behind, behind, there were some scratches scratches.. Therefore Therefore,, he showed himself to one Doctor present in the Jaslok Hospital.
123.
The evidence of P.W.40 Dr.Nisha Singh reveals that after the
prosecutrix was shifted to separate room in Emergency Medical Services itself, she examined P.W.-17 Anurag who had accompanied the prosecutrix. She took the history from him and found that he has contusions over left arm and forearm. Accordingly, Accordingly, she has issued the certificate (Exh.167).
124.
On th the ve very night it itself elf th the st state atement of of P.W.17 An Anurag wa was al also
recorded by P.W P.W.43 .43 P.I. P.I. Mane. Ma ne. It is evidence evide nce of o f P.W P.W.. 43 P.I. Mane that th at at about 1.00 a.m. he met Anurag in Jaslok Hospital and then came to the Police Station along with him. him. There he recorded recorded his statement in which again all the the deta detail ilss are are give given, n, as can can be seen seen beca becaus use e no so sort rt of omis omissi sion ons, s, cont contra radi dict ctio ions ns or impr improv ovem ement entss are are broug brought ht on reco record rd in his his cros crosssexamination by the four defence Counsels. The prompt recording of his statement giving all the details is again supporting and corroborating piece of evidence for the prosecution.
79
EVIDENCE RELATING TO SKETCHES OF THE SUSPECTS:125.
Ther here is is al also fu furthe rtherr ev evidence on on rec reco ord ab about identification of
the accused in the incident i.e. sketches drawn by two artists on the very night as per description given by P.W.17- Anurag. It is evidence of P.W.43 P.I. Mane that while recording his statement, as P.W.17 Anurag told that he can give give the the descr descrip ipti tion on of the the accu accuse sed, d, he call called ed two two artis artists ts for for draw drawin ing g sketches sketches of the suspects. suspects. The names of those artists artists are Nitin Nitin Yadav Yadav and Siddi iddiqu que e Shaik haikh. h.
He intr introd oduc uced ed Anur Anurag ag to them them an and d then hen as per per
descr descrip ipti tion on given given by Anur Anurag ag,, the the artis artists ts prepa prepare red d the the sket sketch ches es of the the suspects which are produced on record at Exhs.71 to 75.
126.
P.W.17 An Anurag ha has al also st stated abou bout dr drawing of of th these ese sk sketc etches. es.
According to his evidence also while sketches were being prepared, the artists were the only persons present and P.W.43 P.I. Mane was not present there and P.W. .W. 43 P.I. Mane has also stated that after introducing P.W P.W.. 17 Anurag to those artists, he continued with his work. Those sketches are produced on record at Exhs.71 to 75. They are bearing be aring signatures of P.W P.W.. 43 PI Mane, the artist a rtistss and P.W.17. .W.17.
127.
Even a cu cursory glance to to th these sk sketches ma makes it it cl clear th that th they
are tallying with the description of the accused in this case. Hence on the
80
basis of these sketches Police Police were able to reach reach up to the accused accused because evidence evidence of P.W.43 .W.43 P.I. Mane shows that he showed showed these sketches to the secret informants who were called in the Police Station. One of the secret informant identified the sketch of juvenile-in-conflict-with-law Chand and then after he was produced by Agripada Police Station at about 11.00 a.m. on 23 23.8. .8.20 2013 13,, as his desc descrip ripti tion on was was matc matchi hing ng with with the the sketc sketch, h, he was was arrested and in inquiry with him the names of other four accused were revealed. The police teams were sent for their search.
EVIDENCE OF SPOT PANCHANAMA:128.
The ma materia rial pi piece of of co corroborative ev evidence in in th this re respect is is
the spot panchanama (Exh.26) proved through the evidence of Panch P.W.2 .W.2 Bajirao Patil, P.W.41 .W.41 P.S.I. Patil and an d P.W P.W.. 43 P.I. Mane and the material materi al witness w itness P.W.17 .W.17 Anurag who has shown the spots of the incident to them. As per the evidenc evidence e of P.W.43 .W.43 P.I. Man Mane e on that that night night after after returni returning ng to the Police olice Station he has sent Police Police Constable to preserve preserve the spot of the incident. He has given the message to the control room for sending the C.A. team and the dog squad to the spot in the morning. A phone call was made to private photog photograp rapher her P.W.13 .W.13-S -Sand andeep eep Gurav Gurav asking asking him to come come at Shakti Shakti Mill Mill premises. Then at about 6.30 a.m. all of them along with P.W P.W.17 .17 Anurag went to Shakt Shaktii Mill Mill prem premis ises es.. Ther There e P.W. .W. 17 Anur Anurag ag show showed ed the the spot spot of the the
81
incident. P.W. .W. 41 P.S.I. Patil then called two Panchas. Panchas. The spot panchanama was prepared by P.W.41 .W.41 P.S.I. Patil and from the spot they collected Muddemal Article Nos.1 to 3.
129.
The evidence of P. P.W.41 P.S.I. Patil also goes to pro prove that at
about 6.30 a.m. he along with P.W. .W. 43 P.I. Mane, Mane, P.W.17 .W.17 Anurag, Anurag, the dog squad, and the experts from F.S.L. went to the spot of the incident. The spot of incident was in Shakti Mill Compound. Before entering into the premises premises of Shak Shakti ti Mill Mill they they sele select cted ed two two Pan anch chas as..
Then Then the the panc pancha hana nama ma was was
prepared and the photographs were clicked of the spots and the articles shown by P.W.17 .W.17 Anurag. From the spot, they seized one black piece piec e of cloth 1 1/2 X 1 1/2, Pink colour Odhani, the neck portion of the broken glass beer bottle and the sample sample earth. All these articles articles were separately separately packed packed and sealed. The spot panchanama was completed at about 9.20 a.m. He has identified spot panchanama(Exh.26) and Muddemal Art. Nos.1 to 3. He has made made entr entry y of thos those e mudd muddem emal al arti articl cles es in Mudde uddema mall Regis egiste terr afte afterr returning to Police Station.
130.
The evidence of P.W.2 Bajirao Patil, the panch to the spot
panchanama further proves the contents of this Panchanama. He has also stated that P.W.17- Anurag took them in the dilapidated premises of Shakti
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Mill. That area was deserted. There was grass, shrubs and trees. Then they were taken inside the dilapidated premises. He showed them one 'L' type structure where he was tied and held up. Police inspected that spot. Police found there one piece of black cloth admeasuring 1 1/2 x 11/2 inch. P.W.17 Anurag identified the same as the piece of cloth of his camera, used for wiping the lense. Police seized it.
Thereafter P.W.17 .W.17 Anurag took them to
one room. It was admeasuring 30 x 25 feet. That room was having only the walls but not the roof. There was one platform admeasuring 3 x 3 with the height of 2. Police Police inspected the said platform. platform. Police found there one pink colour dupatta (odhni) having some blood stains and some white stains. There police also found one piece of the neck portion of the beer bottle. Police took both these articles in their custody and also collected the earth which was below b elow the odhni. Police kept all these articles in separate brown envelopes and sealed them. Panchanama (Exh.26) was prepared on the spot. He has identified all these Muddemal Articles in the Court.
131.
Again his cross-examination has not made any dent in his
testimony. Recovery of the neck portion of the broken glass of beer bottle supports and corroborates the evidence of the prosecutrix that she was threatened with the same by accused No.3 Mohd. Kasim. The recovery of pink pink colo colour ur Odhan Odhanii agai again n give givess corr corrob obor orat atio ion n to the evide evidenc nce e of the the
83
prosecutrix that the said Odhani was lying lying there. It is not her case case that said Odha Odhani ni belo belong ngss to her her or she she was was wear wearin ing g it at the the time time of inci incide dent nt.. Theref Therefore ore,, argume argument nt advanc advanced ed by defenc defence e Counse Counsels ls that ho how w she was wearing it on pant falls on the ground.
132.
The re recovery of pi piece of of cl cloth us used fo for wi wiping th the ca camera le lense
proves the presence of P.W.17 .W.17 Anurag at the said spot. The description of the platform, as given by the panch and written in the Panchanama again support support the evidenc evidence e of the prosec prosecutri utrixx that she was forced forced to lie on the said cement block at the time of committing forcible sexual intercourse. Spot Panchanama also supports and proves the evidence of the prosecutrix that she was taken in the room which was having no roof but only walls and it was at some distance from the spot where P.W P.W.17 .17 Anurag was kept with his hands tied tied behind the the back. It is deposed deposed by by the prosecut prosecutrix rix that from from the place where she was taken, P.W P.W.17 .17 Anurag was not visible. visible. Similarl Similarly y, the evidence evidence of P.W P.W.17 .17 Anurag is to the effect that place where the prosecutrix prosecutrix was taken was not visible from the place where he was kept tied. He can only hear her scream screams. s. The spot spot Panchan anchanama ama also also proves proves the deserte deserted d premises covered with shrubs and grass where the incident took place as deposed by the prosecutrix.
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133.
The de description of of th the sp spot as as gi given in in th the sa said Pa Panchanama is is
again fortified by the evidence of P.W.1 Sandeep Kanvinde who has, on the request of P.W.44 Dhanavade, Investigating Officer of Crime Branch visited the spot of the incident on 20.9.2013 at about 11.00 a.m. and there in the presence presence of PI Mane and P.W.17 .W.17 Anurag he took the measuremen measurements ts of the spot shown shown by P.W.17-An .W.17-Anurag urag and prepared prepared rough sketch(Exh. sketch(Exh.23), 23), on the basis of which he made fair map (Exh.24). In the said map, he had shown Shakti Mill premises and exact spot of the incident. He has also shown old structure by 'A' 'B' 'C' 'D' letters which is admeasuring about 35 X 25 feet. That structure, according to him, was having walls only and no roof. He has supported the evidence of P.W. .W. 17 Anurag that there was one way from the Southern side for entering in the old structure and there was one concrete platform inside this old structure. He has shown in the said map the path of the movement of the prosecutrix and P.W. 17 Anurag.
134.
If de defence ha had an any do doubt ab about ve veracity of of th this ma map, th then it it ca can
be said to be totally removed through the photographs of the spot of the incident, which are produced and proved on record through the evidence of P.W.13 Sandeep Gurav. There are totally 22 photographs of the spot marked as Exh.59 Exh.59/1 /1 to 59/22. 59/22. As per evidenc evidence e of P.W.13 .W.13 Sandee Sandeep p Gurav Gurav he has clicked these photographs of the spot of the incident in Shakti Mill Campus
85
on 23.8.2013 on the request of PI Mane. Alongwith these photographs he has also produced the memory card of those photographs vide Muddemal Art. No.18. No .18. Defence Counsels were given copies of the said memory card in CD. CD. They They have have veri verifi fied ed the the trut truthf hful ulne ness ss of thes these e phot photog ogra raph phs. s. In thes these e photographs, the spots, as described by the prosecutrix, P.W.17 Anurag and Panchas are seen, along with Muddemal Articles recovered therefrom.
135.
The only co contention raised by Defe efence nce Co Coun unssels is is tha thatt if if it was
rainy season, how the articles can remain intact as they are. However, However, in this respect, there is no positive evidence that on that night or day it was raining. Immediately after the incident within few hours the spot panchanama was made, hence, no question arises of articles being planted or being tampered as contended. contended. The photographs photographs are are the clinchin clinching g proof of it. it. It is brought brought on record in cross-examination of P.W.13 Photographer Sandeep Gurav that spot panchanama was prepared simultaneously while he was clicking the photographs. Mere suggestion that photographs can be edited is no ground to challenge his evidence. Even the presence of media persons on the spot is also not having any effect on the truthfulness of either the photographs or the spot panchanama or the recovery of articles, though much capital is made of the fact that that in photograph photograph Exh.59/9 Exh.59/9 the media persons persons are seen present and two O.B. vans of media were also present there.
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EVID EVIDEN ENCE CE RELA RELATI TING NG TO THE THE MEDI MEDICA CAL L EXAM EXAMIN INA ATION TION OF THE THE ACCUSED:136.
This brings me to the evidence relating to the medical
examination of the accused persons.
137 37..
On 26 26.8 .8.2 .201 013 3 P.W.25 .25 Dr.Har .Harsh shal al Thubh hubhe e atta attac ched hed to J.J J.J Hos ospi pita tall
has examined all these 5 accused persons including juvenile-in-conflict with-law on o n the request letter let ter of P.I. Crime Branch. As per evidence of this witness, there was no sign suggestive of impotency in any of the accused. On examination, he noted down following injuries on the body of the accused:Name of the Accused Accused No.4 No.4 Mohd.Salim Mohd.Salim
Description Descrip tion of Injuries i) Scratch abrasion of 3 cm. linear over right fore forear arm m exte extens nsor or aspe aspect ct;; redd reddis ish h scab scab formation in middle third region.
Accused No.1 No.1 Vijay Jadhav
i) Scratch abrasion 4 cm. over right shoulder Superior aspect just over shoulder tip with reddish scab. ii) ii) Scra Scratc tch h abra abrasi sion on of 3 cm. cm. over ver back back below left scapular regions, reddish scab.
Accused No No.2 .2 Siraj Khan
i) abrasion of 2 cm x 0.3 cm., brown scab over posterior aspect of right elbow. elbow.
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138.
In his eviden dence he has has stated that the the reddish colour of the scab
suggests age of the injuries as 3-6 days and brown colour 4-7 days. He has accord according ingly ly issued issued the medical medical certifica certificates tes Exh.106 Exh.106 to 109 109.. He has also collected penile swabs and pubic hair of all the five accused persons for DNA analysis.
139.
The pr presence of sc scratch inj injuries on on the the vis visible por portion of th the
bodies of these three accused clearly suggests and proves the occurrence of the incident as deposed by the prosecutrix.
ARREST OF THE ACCUSED ACCUSED AND RECOVERY RECOVERY AT AT THEIR THEIR INSTANCE:INSTANCE:140.
Now co coming to to th the ev evidenc ence re relating to to th the ar arrest of of the the accuse used
and the recovery evidence of mobiles at their instance. It has to be stated that investigation in this case was carried out in a very prompt manner as the detailed description of the culprits given by the prosecutrix and P.W.17 Anurag and the sketches drawn by the artists as per description given by Anurag, helped the police to nab the accused on the very next day i.e. on 23.8.2013. As stated by P.W.43 P.I. Mane, he has shown the sketches to the secret informant and one of the secret informant identified juvenile-inconflict-with-law Chand from the said sketches and he was produced before P.I. Mane at about 11.00 a.m. on 23.8.2013 by Agripada Police Station team.
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There There is also also evidenc evidence e of P.W.32 .W.32 A.P.I. Sunil Sunil Pawar awar about about the arrest arrest of juvenile-in-conflict-with- law. law. He has on the basis of o f sketches received from N. M. Jos oshi hi Ma Marg rg Polic olice e Stati tation on had had arre arrest sted ed him him from from the the area area of Dhobighat. According to him, description of Juvenile-in-conflict-with-law Juvenile-in-conflict-with-law is tallyi tallying ng with with the sketch sketch(Ex (Exh.74 h.74). ). Du During ring inquiry inquiry with with juvenil juvenile, e, as per evidence evidence of P.I. More, More, names of other accused accused were were transpired transpired and search search teams were formed for arrest of these four accused.
ARREST OF ACCUSED ACCUSED NO.1 NO.1 VIJAY VIJAY JADHAV:JADHAV:141 41..
One One of the the sea searrch team team was was hea heade ded d by P.W.1 .W.11 1 P.I. .I. Gul Gulab abra rao o Mor More e
attached attached to DCB DCB CID Unit-I Unit-II. I. Accordin According g to his evidence evidence on 23.8.2013 23.8.2013 at about 11.30 p.m. p.m. P.I. P.I. Raje informed him that he has received received information information that the wanted accused No.1 Vijay Jadhav was likely to come at Video parlor at Madanpura, Maulana Azad Road, Nagpada and therefore, he along with his staff and the informant to identify the accused Vijay Jadhav, went to the spot and laid a trap at the spot. spot. In the midnight midnight at about 1.10 to 1.15 1.15 a.m., the informant showed them the accused Vijay Jadhav, who has entered into video parlor. They accosted him, called called the Panchas and arrested him under panchanama(Exh.51).
89
ARREST OF ACCUSED ACCUSED NO.4 NO.4 MOHD. MOHD. SALIM:SALIM:142.
It is his further evidence that on 24.8.2013 he received
information that the wanted accused No.4 Mohd. Salim had gone to the house of his relative in Delhi. Accordingly on 25.8.2013 he along with his staff and relative of the wanted accused, by name, Izaz Abdul Ansari went to Delh Delhii Airpo Airport rt by flig flight ht and landed landed at Delh Delhii at about about 7.40 7.40 a.m. a.m.
As per
information given by the relative of accused No.4 Mohd. Salim, they went to Ashok Vihar after reporting at Bharat Nagar Police Station and taking the constable Sanjiv Kumar buckle No.1794 in plain clothes along with them, they laid the trap at J.J.Colony, Vazirpur, bus stop No.115 at about 9.30 a.m. Thereafter at about 10.20 a.m., accused No.4 Mohd. Salim came there in the autorickshaw. When he got down from the autorickshaw, his relative Izaz pointed him to them. They took him in custody in presence of Panch P.W.10 Ajay Kumar Kumar Laltuprasad Gautam who was present there. there.
143.
As pe per evi evidence of P.W.10 Aj Ajay Ku Kumar Gau Gautam on on 25. 25.8.2013
when he and his friend Sanjaykumar Tiwari were standing at Bus Stop No No.. 115 11 5 an and d taki taking ng tea, tea, in his his prese presenc nce, e, perso persona nall sear search ch of accu accuse sed d no no.4 .4 Mohd.Salim was taken in which Nokia mobile(Muddemal Art. No.13) was recovered recovered along with cash amount of Rs.300/- and one railway railway ticket dated 23.8.2013 from Kalyan to Delhi which proves that he has left Mumbai after
90
the incident. incident. This Nokia Nokia company mobile i.e. Muddema Muddemall Art. No No.13, .13, cash amount of Rs.300/- and railway ticket Muddemal Art. No.14 were seized from from his his po poss sses essi sion on un under der panch panchan anam ama a (Exh (Exh.4 .49) 9) whic which h was was prop properl erly y proved through evidence of P.W.11 P.I. More and P.W.10 Ajaykumar Gautam. Both of them had identified these muddemal articles in the evidence before the Co Court urt also. also. Then accuse accused d No No.4 .4 Mo Mohd. hd.Sal Salim im was brough broughtt in transi transitt remand to Mumbai and his custody was thereafter handed over to P.W.44 P.I. Dhanavade. Though both these witnesses are cross-examined by Learned Defence Counsels, nothing worthwhile is elicited in their cross-examination to disbelieve the evidence of either the Panch or P.W.11 P.I. More.
ARREST OF ACCUSED ACCUSED NO.3 NO.3 MOHD. MOHD. KASIM 144 44..
Accus ccused ed No.3 Moh ohd. d.Ka Kasi sim m @ Ban anga gali li Baba was was arr arreste ested d by P.W.9 .W.9
A.P.I. A.P.I. Tawade Tawade on 25.8.2013 on the basis of information received by him that he was likely to come in the area of Nair Hospital. Hence after laying the trap there at about 4.00 p.m., accused no.4 Mohd. Kasim was arrested and taken in custody under under panchanama(Ex panchanama(Exh.46). h.46). Then on 29.8.2013 29.8.2013 at about 11.00 a.m. while P.W.9 A.P.I. Tawade was interrogating accused No.3 Mohd. Kasim, he expressed his desire to give some material information in respect of the offence. Hence, Panch P.W.7 Pravin Parmar and Dilip Chavan were called for. In their presence accused No.3 Mohd. Kasim gave voluntary statement in
91
Hindi that he is ready to produce the mobile,which he had sold to some person and he will show them that person. His statement was reduced to Memorandum panchanama(Exh.42). Thereafter accused No.3 Mohd. Kasim guided the Police and Panchas to the footpath near Akbar Peerbhai college at Nagpada. There There he asked one mobile seller to produce produce the mobile which he has sold to him six days back. Then he produced the mobile of Nokia Company which was identified by the accused No.3 Mohd. Kasim to be the same. Police took it in their custody, noted its IMEI number and sealed it under seizure seizure panchanama(Exh. panchanama(Exh.43). 43). Mu Muddemal ddemal Article Article No.12 No.12 is the same mobile recovered at the instance of accused No.3 Mohd. Kasim as identified by both the witnesses.
145.
There is co corroborating evi evidence of P. P.W.8 Mr Mr. Rav Ravi Dan Dandagule
who has stated that after identifying the accused No No.3 .3 to be the same person who has sold him the said mobile 5-6 days back, he has produced produced it before the Police. Police noted down the number of the mobile and took it into custody under panchanama. He has also identified the accused No.3 Mohd. Kasim in the Court and mobile i.e. Muddemal Article No.12.
146 .
Again ex exhaustive cr cross-examination of th these th three wi witnesses
has not shattered either their credibility or the truthfulness in any way.
92
Merely it is pointed out that in the memorandum panchanama(Exh.42), it is not stated that accused has given the statement voluntarily and Panchas have not made inquiry with the accused as to whether he was assaulted or beat beaten en in the the po poli lice ce cust custod ody y. This This cont conten enti tion on is of no avai availl beca becaus use e disclosing statement is followed by recovery of mobile and in evidence before the Court, Panchas and Police have stated that the statement was given by the accused voluntarily. voluntarily.
147.
Recovery of of th these tw two mo mobiles i. i.e. Mu Muddemal Ar Art. No No.12 at at th the
instance of accused No.3 Mohd. Kasim and Muddemal Art. No. 13 at the instance of accused No.4 Mohd.Salim is important as they connect these accused with the Call Detail Records of these mobiles which are produced by P.W.29 Baby John.
EVIDENCE RELATING TO SIM CARD OF JUVENILE :148.
Then th there is is evi evid denc ence of of P.W.35 M Mrr. Sa Samsher Shari hariff Sh Shaik aikh wh who
has has stat stated ed that that SIM SIM Card Card No.969 .96996 9678 7843 430 0 stand standss in his his na name me.. He had had purc purcha hase sed d it in Novem ovembe berr 20 2012 12.. It was was of Reli Relian ance ce comp compan any y. He has has iden identi tifi fied ed the Cust Custom omer er Appl Applic icat atio ion n Form(E orm(Exh xh.1 .140 40)) whic which h bear bearss his signature along with photocopy of voting card and his photograph thereon. He has deposed that he had given it to juvenile-in-conflict-with-law, Chand
93
as he was not having SIM card and he was knowing him because they are residing in the same area. area. In his cross-examination, it it is brought on record record that he has purchased the SIM Card from Bawa S.T.D. Shop which is at Shakti Nagar in front of Kutta Office.
149.
The pros rosecution has prod roduced on record the Ca Call Detail ail Records
of this Sim Card No No.. 9699678430 9699678430 through the evidence evidence P.W.31 .W.31 Mr. Mr. Rajesh Rajesh Gaikwad. As per letter issued to him on 26.8.2013 by P.W.44 P.I. Dhanavade, he has produced the Call Detail Records( Records(Exh.13 Exh.137) 7) of the mobile along with Customer Application Application Form (Exh.140). (Exh.140). As per his evidence this mobile No No.. 9699678430 stands in the name of P.W.35 Shamsher Sharif Shaikh.
150.
Thus as as pe per ev evidence on on re record tw two mo mobiles we were re recovered at at
the instance of two accused in this case, namely, accused No.4 Mohd. Salim and accused No.3 Mohd. Kasim and SIM Card No. 9699678430 was found to be given by P.W.35 Samsher Sharif Shaikh to juvenile-in-conflict-with-law Chand and IMEI number and SIM Card number of these three mobiles are noted in the respective Panchanamas. Panchanamas.
151.
Prosecutio tion ha has ex exami amined P. P.W.29 Mr Mr. Bab Baby y Joh John n, No Nodal dal of officer
in Tata Tata Teleservi Teleservices ces who has produced on record Call Detail Detail Records Records of
94
mobile No. 9920465351 along with certificate (Exh.129). Sim Card of said mobile Muddemal Art.No.13 as stated above, stands in the name of accused No.4 Mohd. Salim. Its IMEI No. is 358615044698550 35861504 4698550..
152.
P.W.27 Mr. Changdev Godse, Nodal Officer in Vo Vodafone has
produced on record Call Detail Records of mobile No.9769125965 along with certificate (Exh.121). Its IMEI number is 359730045756169. Said Said mobile i.e. muddemal Art. No.12 is recovered at instance of accused No.3 Mohd. Kasim and is identified by Pancha witness and P.W.8 Ravi Dandagule.
153.
P.W.31-Rajesh
Gaikwad,
Nodal
Officer
from
Reliance
Commun Communica icatio tion n Ltd. Ltd. has produc produced ed the Call Call Detail Detail Record Recordss of SIM No No.. 9699678430 given by P.W.35-Samsher Shaikh to Chand, juvenile-in-conflict with-law. with-law. P.W.36-Aakash .W.36-Aakash Swamy in his evidence has stated his mobile number as 9702086841. In the Call Detail Record Record (Exh.121) of accused accused No.3No.3Mohd.K hd.Kas asim im,, ther there e is ment mentio ion n of phon phone e call all from rom acc accused used No.3.3Mohd.Kasim to mobile No.9702086841 of P.W P.W.36-Aakash .36-Aakash Swamy. Swamy. The Call Detail Records of these mobiles reflect the calls exchanged between the accused and juvenile-in-conflict-with-law interse at the time of incident as follows:-
95
CHART OF MOBILE PHONE CALLS AMONGST ACCUSED, JUVENILE-INCONFLICT-WITH-LAW AND P.W.36-AAKASH SWAMY DATE
TIME
DURATION
CALLING PARTY
CALLED PARTY
22/08/13
17.52
26
9920465351 Salim Ansari
9769125965 Kasim Shaikh
22/08/13
17.56
10
9920465351 Salim Ansari
9769125965 Kasim Shaikh
22/08/13
18.00
10
9920465351 Salim Ansari
9769125965 Kasim Shaikh
22/08/13
18.04
24
9920465351 Salim Ansari
9699678430 Chand
22/08/13
18.05
18
9769125965 Kasim Shaikh
9920465351 Salim Ansari
22/08/13
18.21
24
9699678430 Chand
9920465351 Salim Ansari
22/08/13
18.23
20
9920465351 Salim Ansari
9699678430 Chand
22/08/13
18.32
41
9699678430 Chand
9920465351 Salim Ansari
22/08/13
18.34
17
9699678430 Chand
9920465351 Salim Ansari
22/08/13
19.45
32
9769125965 Kasim Shaikh
9702086841 P.W.36 .W.36 Aakash Aak ash Swamy
154.
Thus, Call Detail Records clearly go to prove that all these
accused were in touch with each other on phone during this entire incident.
155.
On th this as aspect, th the evi evidence of of P. P.W.36 Mr Mr.Aakash Sw Swamy is is of
great relevance. According to him, he knows juvenile in conflict with law Chand and accused No.2 Siraj as they reside in the same area of J.R.Boricha
96
Marg. arg. He kn kno ows othe otherr thr three accu accuse sed d in this this case case also also whom whom he has has identified in the Court, as they used to be always with Chand. He has deposed that all of them used to play cards with him. According to his evidence on Thursday 22.8.2013 at about 4.00 p.m when he, accused No.2 Siraj, accused No.3 Mohd. Kasim and Chand, juvenile-in-conflict-with-law were playing the cards, at about 5.30 to 6.00 p.m., accused No No.3 .3 Mohd. Kasim received phone call and said on phone that, “Bol Salim kya ho gaya?”. gaya?”. Then after hearing on the phone call, accused No.3 Mohd. Kasim said to accused No.2 Siraj that there was phone call of accused No.4 Mohd. Salim and further furt her said, “Chal Sirju shikar shika r aa gaya hai”. hai”. When P.W P.W.36 .36 Aakash Aakas h Swamy asked accused No. 3 Mohd.Kasim, where they were going?, accused No.3 Mohd. Kasim told him that “Shikar aaya hai, shikar ko jana hai' and accused No.3 No .3 Mohd. Kasim replied replied that, “Hiran “Hiran ke shikar pe jana hai”. hai”. Saying Saying so, both accused No.3 Mohd. Kasim and accused a ccused No.2 Siraj left.
156.
According to P. P.W.36 Aakash Swamy, after 15 to 20 20 minutes,
juvenile-in-conflict-with-law Chand also received the phone call and he said that he was also going as it was phone call of accused No.3 Mohd.Salim. Mohd.Salim. He has deposed that, even though their game was not complete, he left. Thereafter at about 7.45 p.m., he made phone call to accused No.3 Mohd. Kasim from his mobile number 9702086841 but accused No.3 Mohd. Kasim
97
did not respond to his call. After 10 to 15 minutes, accused No.3 Mohd. Kasi Ka sim m made made phone phone call call to him. He aske asked d accu accuse sed d No.3 o.3 Moh ohd. d. Ka Kasi sim m whether he was coming to play? He said, no, no, he was outside.
157.
It is is fu furthe rtherr de deposed by by this wi witness ess that hat on on 24 24.8. .8.2013 he he re read in in
the newspaper that juvenile in conflict with law Chand was arrested in the case of incident incident of rape on a girl in Shakti Mill Premi Premises. ses. Then, he made a phone call to accused No.3 Mohd. Kasim but his phone was switched off. Then he went to his house but he did not find him. He also went to take search of accused No.2 No.2 Sirju Sirju at Dhobighat where he resides resides but he was not there. Hence he felt suspicious that as they were talking of some 'shikar' and the incident of rape has taken in Shakti Mill premises, they may be involved therein. Hence, he went to N.M.Joshi N.M.Joshi Marg Police station and informed P.I. Mane who was present there.
158.
This witness is cross-examined at length by four Defence
Counsels but his evidence has remained untouched and unshattered on record. His evidence gives complete support and corroboration to the Call Deta Detail il Recor ecords ds of the the mobi mobile less call callss exch exchan anged ged betw betwee een n accu accused sed No.4 Mohd. Mo hd.Sal Salim im and accuse accused d No No.3 .3 Mo Mohd.K hd.Kasi asim m and also also with with juveni juvenilele-ininconflict-with-law, conflict-with-law, Chand.
98
159.
His ev evidence al also fu fully su supports an and co corroborates th the ev evidence
of the prosec prosecutri utrixx and P.W.17 .W.17 Anurag Anurag that that initia initially lly there there were were onl only y two accused, namely No.4 Salim and accused No.1 Vijay; subsequently two other accused i.e. accused No.3. Mohd. Kasim and accused No.2 Siraj and lastly fifth person i.e. juvenile-in-conf juvenile-in-conflictlict-withwith-law law,, Chand came there. there. The code language used by the accused amongst them that of 'Shikar aaya hai, shikar ko jana hai' and accused No.3 Mohd. Mohd. Kasim replying that “Hiran ke shikar pe jana hai” clearly and unmistakably indicates not only their intention but acting with prior knowledge for what purpose they were called. Their acts prove that they were acting in pursuance of prior agreement of the criminal conspi conspirac racy y. The law is well well settle settled d that that it is diffic difficult ult to get the proof of crim crimin inal al cons conspi pira racy cy by dire direct ct evide evidenc nce e an and d hence hence,, on one e has has to rely rely on indirect evidence. As held in the authority of Firozuddin Firozuddin Basheeruddin and Ors. V State of Kerala, 2001 S.C.C. (Cri) 1341 relied upon by Spl.P.P., to prove criminal conspiracy, the prosecution will often rely on evidence of act of various parties to infer that they were done in reference to their common intention. Though the offence requires some kind of physical manifestation of agreement, agreement, the law does not require require that the fact of agreement takes any particular particular form. The fact of agreement agreement may be communicat communicated ed by words or conduc conduct. t. Thus, Thus, it has been held held that that it is unnecess unnecessary ary to prove prove that the parties 'actually came together and agreed in terms” to pursue the unlawful
99
object, there need never have an express verbal agreement it being sufficient that that ther there e was was 'a taci tacitt un unde ders rstan tandi ding ng betw between een conspi conspira rato tors rs as to what what should be done.'
160.. 160
Hence, just as the proof of pudding lies in its eating, similarly
the proof of criminal criminal conspiracy conspiracy lies in commissi commission on of various acts by the accused accused during the course course of incident. In this case, case, the participatio participation n and involvement of each of the accused in the act of committing gang rape on prosecutrix, being in touch with each other constantly on mobile, calling other other accu accuse sed d on mobi mobile le an and d then then thei theirr actin acting g in uniso unison, n, suff suffic icien ientl tly y establishes that the entire incident was executed in pursuance of criminal conspiracy hatched by them with their juvenile associate.
161.
In th this ca case, th the pr proof of of cr criminal co conspiracy ca can be be ga gathered
from the execution of the acts itself. Here the tell-tale evidence is produced on record proving that all these five persons were acting in pursuance of such criminal conspiracy, calling one another, the moment they find any isolated isolated girl and boy in the said premises, premises, being being always be on the prowl prowl of victim. victim. The Call Detail Detail Records Records also proved proved clinching clinching involvement involvement of the accused with prior knowledge in the incident as deposed by the prosecutrix and Anurag. These Call Details Records and the evidence of P.W.36 Aakash
100
Swamy thus puts a clinching stamp on the entire case of the prosecution, as regards involvement of the accused and also as regards offence of criminal conspiracy.
EVIDENCE RELATING TO TEST IDENTIFICATION PARADE:162.
There is is on one mo more eq equally st strong pi piece of of ev evidence th that is is te test
iden identi tifi fica cati tion on of thes these e four four accu accuse sed, d, cond conduc ucte ted d by P.W.2 .W.28 8 Nagor agorao ao Lokhande, Executive Magistrate Lokhande on 6.9.2013 on the request of Inves Investi tiga gati ting ng Offi Office cerr of Crim Crime e Bran Branch ch.. As per per evide evidenc nce e of P.W.4 .W.44 4 P.I. .I. Dhanavade that on 28.8.2013 the prosecutrix was requested to come for test iden identi tifi fica cati tion on para parade de of the accu accuse sed d to be held held on 2.9. 2.9.20 2013 13 but but it was was informed that she was not in a position to do so. Accordingly, her mother has made endorsement (Exh.33) in her handwriting and signed by her. her. P.W. .W. 4 pros prosec ecut utri rix' x'ss moth mother er has has supp suppor orte ted d this this evid eviden ence ce alon along g with with the the prosecutrix. Hence test identification parade was arranged on 6.9.2013 at Byculla Jail.
163.
P.W.28 Mr.Nagorao Lokhande, Executive Magistrate has given
the the deta detail il proc proced edur ure e an and d prec precau auti tion onss whic which h he took took at the the time time of con ondu duct ctin ing g of test test iden identi tifi fic catio ation n para parade de.. He has has con ondu duc cted ted tes test identificat identification ion parade of these four accused separately separately one after another by
101
arranging six different dummy persons with the help of Superintendent of Jail. Every time an opportunity was given to the concerned accused to change the position and the the clothes if he desires. Then one after another in pres presen ence ce of Pan anch chas as two two witn witnes esse ses, s, na name mely ly P.W.1 .W.17 7 Anur Anurag ag an and d the the pros prosec ecut utrix rix were were call called ed for for. Bo Both th of them them have have ident identif ifie ied d all all the the four four accused. Memorandum Panchanama which is prepared as per Exh.123 was written simultaneously, simultaneously, while conducting of test identification parade. parade.
164.
An at attempt wa was ma m ade by by de defence Co Counsel to t o po point ou o ut so some
alleged infirmities in the conduct of test identification parade like, it is not mentioned in the memorandum panchanama that the accused accused were asked whether they wanted their Advocate to remain present at the time of test identificati identification on parade. It is submitted submitted that in the panchanama panchanama it is also not ment mentio ione ned d that that wind window ow of the the room room was was clos closed. ed. The na name mess of othe otherr persons who were brought by Superintendent of jail to act as dummy but who were not selected are not mentioned in the Panchanama. Accused No.1 No.1 Vijay was wearing the same clothes which he was wearing when Panch left to bring bring
the witne witness. ss.
P.W.28 .W.28 Nago Nagorao rao Lokhan Lokhande de cannot cannot say whethe whetherr
accused accused No.1 No.1 Vijay Vijay was wearing the footwear. footwear. He also cannot say whether whether dummy dummy No.5 o.5 Alla Allaud uddin din was was havi having ng beard beard,, must mustac ache he or not, not, wheth whether er dummy No.3 Mohd. Samsher Abdul Wahab was wearing religious cap and
102
whether the height of dummy No.6 No.6 Somnath was similar similar to the accused.
165.
Now as regards the evidence relating to test identification
parades, it has to be remembered that the test identification parade belongs to the stage of investigation by police. It is held mainly for the purpose of giving assurance to the Investigating Officer that investigation is going on the the prope properr trac track. k. The The subst substan anti tive ve evide evidenc nce e abou aboutt invol involvem vemen entt of the the accused in the case is their identification in the dock by the witnesses at the time of trial. What, therefore, the Court has to see while assessing the evid evidenc ence e rela relati ting ng to the the test test iden identi tifi fica cati tion on para parade de of the the accu accuse sed d is to whether there were sincere sincere efforts on the part of the Magistrate to make sure sure that the ability of the witnesses to recognize the suspect has been fairly and adequately tested which is the object of the test identification parade and whether test identification parade in general can be called as fair so as not to cause cause an any y prej prejud udic ice e to the accu accused sed..
Some Some laxit laxity y in the manner manner of
conducting of test identification parade is bound to occur when four test identification parades were held and that too of four accused and two witnesses. Those laxities do not go to the root to wipe out its evidentiary value totally from record, as held by the Apex Court in the case of State of Maharashtra Maharashtra V Suresh Suresh 2000 S.C.C. (Cri) (Cri) 263, when 263, when similar such contentions were raised to challenge the evidentiary value of test identification parade.
103
According to the Hon'ble Hon'ble Supreme Court, Court, “If potholes were to be ferreted out from the proceedi proceedings ngs of the Magist Magistrat rates es holdin holding g such such parade paradess possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated ever every y test test iden identi tifi fic catio ation n para parade de wou ould ld beco becom me unusa un usabl ble. e. We remi remind nd ou ours rsel elve vess that that iden identi tifi fica cati tion on parades are not primarily meant for the court. They are mean meantt for inve invesstiga tigati tion on purp purpos oses es.. The The obj object ect of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. crime. Second Second is to satisfy the investigati investigating ng authorities authorities that the suspect is the real person whom the witnesses had seen in connection with with the said occurrence. occurrence. So the officer officer conducting conducting the test identification identification parade should ensure ensure that the said object of the parades is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held.”
166.
In th t he pr p resent ca c ase ev e ven if i f fo for th t he sa s ake o f ar argument, it i t is is
assumed assumed that there are some laxities, laxities, it cannot be said that they are fatal to affect their evidentiary value. There does not appear to be any such unfair aid or assistance assistance given to the identifying identifying witnesses witnesses by investigati investigating ng agency agency so as to facilitate the identification of the accused. Investigating agency does not appear to have played any hand h and in conducting of these parades.
167.
It is is pe perti rtinent ent to to n no ote th that te test ide iden ntificatio tion pa parade radess we were hel held d
104
immediately after lodging lodging of the complaint. Hence there there was absolutely no occasion as such, for the investigating agency to show the accused or their photographs to the prosecutrix or to the witness Anurag. As a matter of fact, there was no necessity at all to show the photographs of the accused accused to the witnesses because both the prosecutrix and Anurag had given detailed description of these accused.
168.
Things wo would ha have di different if if th the pr prosecutrix an and An Anurag had
not at all given description of the suspects or they had no opportunity also to observe the suspects, at the time of incident. As a matter of fact, the evidence evidence on record record in this case, is so clinching clinching that there remains no scope for any doubt about identification of the accused as both the witnesses have categorically identified the accused in the Court also in the trial which took place within 2 months after the incident. The evidence of test identification parade which is held during the stage of investigation cannot be replaced, substituted or prevailed over the substantive evidence of identification of the accused by the witnesses in the Court. The only purpose of evidence of tes test iden identi tifficat icatio ion n para parade de,, as sta stated ted above bove,, is to suppo upport rt or give ive corroborative value to the evidence of identification of the accused in the court by the witnesses.
105
169 .
As held in Dattatrya s/o Ankush Sasane V State of Maharashtra
2007 ALL MR(Cri) 6, “ 6, “the the evidence of test identification parade is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to identity of accused who are strangers to them. It is a process process in investigation investigation to confirm confirm the truthfulness truthfulness about about the identity identity and not more than that. If suspects suspects are totally totally unknown unknown to the witnesses and witnesses had no sufficient opportunity to observe them, then it may be true that the evidence of test identification parade assumes significance.”
170.
Herein th the cas case e th thou oug gh it it is is tru true e th that, su suspects were un unknown to to
the prosecutrix and Anurag, the second aspect that they had no opportunity to observe them is not true. If they had no such opportunity, opportunity, they would not have given detailed description of the accused in the complaint (Exh.39) and an d in thei theirr stat statem emen ents ts resp respec ecti tivel vely y.
Seco Secondl ndly y, here here in this this case case the the
identification of the accused in the Court is also within 3 months after the inciden incident. t. The incident incident has taken place place on 22.8.201 22.8.2013 3 and the evidence evidence of prosecutrix was recorded in the Court on 17.10.2013 whereas evidence of Anurag was recorded on 13.1.2014. Therefore, there was hardly any time gap for the witnesses witnesses to forget forget the peculiar peculiar and specific specific featur features es of the accused.
106
171.
An at attempt is is al also ma made by by th the Le Learned De Defence Co Counsel by by
examining D.W.2 Mr. Dayanand Shreenivas Kamat,Special Correspondent, DNA DN A Newsp Newspaper aper and D.W.3 .W.3 Mr.Di Mr.Divye vyesh sh Anil Anil Singh, Singh, Journa Journalis listt Mumbai umbai Mirror as defence witnesses to show that photographs of the accused were already published in the newspapers 'Mumbai Mirror' and 'DNA' dated 4.9.2013 and hence there was no meaning to test identification parade held on 6.9.2013.
172.
However, in in th the fi first pl place bo both th the wi witnesses ha have de denied th that
they had seen the newspapers articles. The Learned Spl.P.P. .P. has also pointed outt that ou that as admit admitte ted d by the the defe defenc nce e witn witnes esss Mr.D Mr.Div ivey eysh sh Sing Singh, h, from from Mumbai umbai Mirro Mirrorr, this this newspap newspaper er article article (Exh. (Exh.223 223)) is not at all properl properly y proved as main copy of this Edition is in the hard disk. It is not primary evidence. Moreover, Moreover, he has not brought brought the story which he has given to the desk office. That story is also prepared on the basis of certain hints. Further the witness has identified that the Edit Department can add, modify and put their own inferences inferences also. also. Therefore Therefore he cannot say with certainty certainty what part has been added or modified in that story published published in the newspaper (Exh. 223). As regards the photographs appearing in the news article, he has admitted that they are having a separate photo team in their newspaper and also photo library. Some of the photographs published in this news article
107
are are take taken n from from the the photo photo libr library ary an and d they they are are of the hist history ory sheet sheeter ers. s. Therefore Therefore as as submitted submitted by Spl.P Spl.P.P., publication publication of these photographs photographs is also not sufficient to assail the test identification parade evidence of the accused by the witnesses.
173.
Though Le Learned Co Counsels fo for th the ac accused ha have re relied on on th the
authorit authority y of Sanjay @ Gangadhar Vishvarup Shelke and another V. State of Maharashtra 1999 (3) Mh.L.J.71, as Mh.L.J.71, as the facts of the said authority are totally different, the observations made therein cannot be made applicable to the present case. In the said authority, the witness had no chance to observe the accused accused or to note their features features so as to identify identify them in the identificati identification on parade. It was brought on record that 7- 8 persons who had come to commit dacoity at petrol pump had tied cloth around their head. The witness had seen them from the glass cabin. He has not given the description of the miscreants to the police. Some of the witnesses had run away and hardly seen the accused and if seen, it was only for about one and half minute. Moreover the evidence on record proved that for test identification parade accused were brought in the presence of the identifying witnesses therefore, evidence relating to the identification of the accused in test identification parade was disbelieved. In the backdrop of these facts it was held that defence need not prove to the hilt that the photographs of the accused were
108
shown to the witnesses. They can discharge their burden by bringing the circumstances on record to prove that there was reasonable possibility of the accused accused being shown shown to the witnesses witnesses prior to the test identifica identification tion parade.
174.
As ag against it it, in in th the pr present ca case no no su such po possibility is is br brought
on record and otherwise also, there was no reason to show the photographs of the accused to the proseuctrix and the witness Anurag as the accused had not covered their faces at the time of incident and description of all the accused was given in the complaint itself. itself. It has to be reiterated that, on the the basi basiss of desc descri ript ptio ion n give given n by Anur Anurag ag,, sket sketch ches es of the the susp suspec ects ts were were prepared, which led to arrest of accused.
175.
Spl.P.P ha has al also re relied on on th the au authority of of D. Gopalkrishnan V. V.
Sadanand Naik and Ors. (2006)1 Supreme Court Cases (Cri) 600 to 600 to submit that there is nothing wrong in showing the photographs of the accused to the witnesses, assuming that they were shown. It was held in this authority that there are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show the photographs to confirm whether investigation is going on in the right direction. During the course of investigation if the
109
witnesses had given identifying features of the assailants, the same could be confirmed by the Investigating Officer by showing the photographs of the suspects.
176.
Here in the present case there is absolutely no concrete
evidence on record to prove that such photographs were shown to the accused or there was any reason at all to show the photographs of the accused to the witnesses.
177.
As a ma matter of of fa fact, ea each ca case de depends on on it its ow own fa facts an and
circumstances. As the appreciation of evidence, even if it may be to the area of the identification of the accused, depending as it does on such variable and inconsistent factor as human nature, the different set of circumstances obtaining in each case, cannot be reduced to a set formula. No straight jacket formula therefore, can be made applicable to hold that as the evidence of test identification parade is suffering from some infirmity, it should be excluded from consideration, consideration, and hence the identification of the accused by the witness in the court is not admissible, acceptable or reliable.
178.
Much al also de depends, up upon se several fa factors li like th the na nature of of th the
offe offenc nce, e, the the prox proxim imit ity y of the the accu accuse sed d with with the the witn witnes esse ses, s, obser observin ving, g,
110
abso absorbi rbing ng,, reta retain inin ing g an and d reca recall llin ing g po powe werr of the the witn witnes ess, s, the spec specia iall identifying features of the accused, the manner, time and place of incident etc. Hence the witnesses who identify the accused in the Court for the first time after the occurrence of the incident also cannot be disbelieved, nor their testimony can be jettisoned simply because investigating agency has committed default in holding test identification parade or Magistrate has comm commit itte ted d so some me laxi laxiti ties es or infi infirmi rmiti ties es in condu conduct ctin ing g the same. same.
The The
evidence of such witnesses has to be scrutinized independently dehors such evidence of test identification parade. Upon such independent scrutiny, if the evidence is found to be natural, natural, reliable and inspiring confidence, confidence, as in the present case, then it can be accepted without being swayed by the fact that there are some infirmities in the test identification parade.
179.
Moreov eover, as as st stated abov bove, th this is is a unique cas case e in in the the sense th that
prosecutrix prosecutrix alone alone was not the victim victim and eye witness witness to the incident incident but ther there e is on one e more more witn witnes esss i.e. i.e. P.W..W.-17 17 Anur Anurag ag who who was was also also with with the pros prosec ecut utri rixx in the the majo majorr part part of the the inci incide dent nt an and d who who has has an equa equall oppor op portu tuni nity ty to observ observe e the the accu accuse sed d as his his evid evidenc ence e show showss that that when when accu accuse sed d were were go goin ing g on one e afte afterr an anot other her to comm commit it sexu sexual al assa assaul ultt on the the prosecutrix, remaining accused continued to detain him. Therefore, he had also an opportunity to observe the accused.
111
180.
In my my co considered op opinion, in in th the pr present ca case ev evidence of of te test
identification parade is also not strictly essential. After all test identification parade is made at the stage of investigation. The substantive evidence about identification of the accused is when they are identified by the witnesses in the dock at the time of trial. The evidence of test identification parade is mer merely ely a supp suppor orti ting ng or corr corrob obor orat atin ing g evid eviden ence ce to evid eviden ence ce of dock dock iden identi tifficat icatio ion. n. Here ere both both the the witnes tnesse sess had had more ore than than suf suffic ficient ient opportunity to observe the accused persons as entire incident has taken plac place e for for more more than than 30 30-4 -40 0 minu minute tes. s. At the the time time of inci inciden dent, t, they they saw saw accused No.4 Mohd. Salim and accused No.1 Vijay when they were entering in Shakti Mill premises at about 6.30 p.m. and thereafter again at the time of actual incident. All these four accused accused and juvenile-in juvenile-in-conf -conflictlict-withwith-law law were with these witnesses throughout this entire period and till they were brought at railway track. Prosecutrix had observed them from very close quarters. Considering the nature of the offence which is of sexual abuse wherein the th e physical proximity is important, she had ample opportunity to note their features without any confusion as woman can never forget the faces of her tormentor. Those faces remain forever imprinted on her mind, even even if she she wan ants ts to forge orgett them hem. Ther here is abso absollutel utely y no chanc hance e of prosecutrix making any mistake about identification of the accused.
112
181 81..
Moreo oreove verr, as per per wel well settl ettled ed po possitio ition n of law law, the the biza bizarr rre e inc inciden identt
like dacoity and sexual assault cannot just fade away from the memory of the witnesses. Witnesses are bound to observe and note forever the features of those persons who figured in that incident.
182.
As ob observed by by Ap Apex Co Court in in th the ca case of of Ravinder Kumar V.
State State of Punja Punjab b 200 2001 1 Supr Suprem emee Court Court Cases Cases (Cri) (Cri) 138 1384 4 relied upon by the Learned Spl.P.P.,the bizarre incidents have the tendency to stick in the mind of the the pers person on inde indeli libl bly y. Any Anythin thing g whic which h has has an any y spec specia iall or pecu peculi liar ar lineament can create an impact on the human mind lasting long after. While it is true that routine events in a man's day to day life may not remain in his mind for being remembered later, any odd or bizarre happenings involving him or in front of him will always have the tendency to stick in his mind indelibly and if there is any cause for him to recollect such such events again, his memory get refreshed. That is why he is able to narrate such event with all details when asked to do so. This applies to all witnesses in criminal cases involving serious offences. The memories of such events are not likely to fade up from the canvass of their minds. Hence, it will be unrealistic to jettison the testimony of such witnesses on the mere ground how they could have remembered the identity of the th e person.”
113
183.
Hence, the contention that witnesses cannot recognize the
pers person onss invo invollved ved in suc such even events ts is overl verloo ooki king ng the the psyc psycho holo logi gic cal phenomenon
that
human
memory is
very often
a
conditioned
characteristic. In this case, therefore, it is but natural for the prosecutrix and Anurag to remember the faces of the accused persons. Such incidents, to which they t hey were subjected to, are not routine events but they are shocking, life threatening and therefore, therefore, they have have the effect of being photographed in their mind. Hence, there is nothing unnatural if they had seen the accused and remembered their faces so as to identify them later in the court.
184.
Moreover doc dock ide identification is al also imm immediately don done wit within
two months after the incident. The incident has taken place on 22.8.2013 and evidence of the prosecutrix is recorded on 17.10.2013. Therefore there was absolutely no chance that prosecutrix prose cutrix may commit any error or mistake in the identification of these accused even though previous to the incident they were unknown unknown to her. her. The evidence of test identification in the present present case was therefore not essential as such for proving the involvement of the accused, it might have been necessary for the Investigating Officer at the stage of investigation to know whether investigation was proceeding on proper track.
114
185.
Even if if fo for th the sa sake of of argum rgume ent, th the evi evide denc nce e rel rela atin ting to to th the te test
iden identi tifi fica cati tion on parad parade e is excl exclud uded ed from from cons consid ider erat atio ion, n, so as to remo remove ve appr apprehe ehens nsion ion in the the mind mind of the accu accused sed that that their their photo photogr grap aphs hs were were alleged to be shown to the particular witnesses, it does not make much difference to the prosecution case.
186.
As re regards P. P.W.17 An Anurag, it is is per pertinent to no note tha that he ha has
given detail description of the accused so as to enable two artists to draw their sketches. Even a cursory glance to the sketches (Exhs.71 to 75) leaves no mann manner er of doub doubtt abou aboutt the the iden identi tity ty of the the accu accuse sed. d. The The defe defenc nce e argu argume ment nt that that ther there e are are perso persons ns looki looking ng simi simila larr to the the pers person onss in the the sketches and there may be several persons of the same name, that will not make make an any y diff differ eren ence ce beca becaus use e both both the the witn witnes esse sess have have cate catego gori rica call lly y identified all the accused in the Court without any hesitation or confusion. In the complaint lodged on the very night and statements recorded, both of them have given description of the accused which is perfectly tallying with the accused in this case. Therefore, the accused have absolutely no case to contend that they were not involved in the offence or benefit of alleged lacunae in test identification parade or publication of their photographs in newspapers, be given to them.
115
FORENSIC EVIDENCE OF DNA PROFILE:187.
This brings me to the last and most crucial and equally
clinching piece of evidence that of forensic evidence. As deposed by P.W P.W.39.39Dr.A Dr.Asm smit ita a Patki atki,, at the the time time of medi medica call exam examin inat atio ion n of pros prosec ecutr utrix, ix, immediately conducted on her arrival in the hospital within one hour after the incident, she has collected various samples like two vaginal swabs, one rectal swab, swab, nail clippings of both the hands. hands. She has also collected whitish and blood stains from medial aspect of both the thighs, pubic hair matted, combed and cut. Dr.Satoskar Dr.Satoskar who was with her has sealed the samples and handed handed over in the same same conditi condition on to the police. police. These These sealed sealed medica medicall samples samples of prosecutrix prosecutrix were collected collected by P.W.15-P .W.15-P.C.Suhas .C.Suhas Kaginkar Kaginkar on 23/08/2013 itself. As per his evidence, on that day, day, P.W P.W.42-P .42-P.S.I. Shamrao Patil asked him to accompany him to Jaslok Hospital. Accordingly he went along with him to Jaslok Hospital. There they met Dr. Asmita Patki who handed over him 9 sealed items of this C.R.. They were all given in one bag. He verified whether these 9 items were according according to the letter. letter. He returned returned along with those articles to the police station and informed about it to P.I. P.I. Mane. He gave him a forwarding letter in two copies and told him to go to F.S.L. along with the letter and sealed parcels. Accordingly he went to F.S.L. and an d hande handed d over over the the seal sealed ed bag bag to the the clerk clerk at F.S.L. .S.L. an and d obtai obtaine ned d the the acknowledgment on the the forwarding letter-Exh.66. His statement came to be
116
recorded accordingly accordingly on 25/08/2013. In his cross examination, examination, it is brought on record that doctor told him what was contained in sealed packets and the seals on the packets were of the hospital.
188.
Here the evidence of Forensic Expert-P.W.42-Shrikant Lade,
Asstt.Director FSL Mumbai becomes relevant. According to his evidence on 23/08/2013, he received forwarding letter being No.9207/13 Exh.66 from N.M.Joshi Marg Marg Polcie Polcie Station along with one sealed sealed plastic bag. He opened the said plastic bag and found the articles therein in sealed condition, Those articl articles es were Exh.1 Exh.1 vaginal vaginal swab of the victim, victim, Exh.2 Exh.2 clippin clipping g of matted matted pubic hair of victim, Exh.3 Pubic hair of victim, Exh.4 vaginal v aginal swab of victim, Exh.5 Exh.5 vagi vaginal nal swab swab of vict victim im,, Exh. Exh.6 6 Rect Rectal al swab swab of vict victim im,, Exh. Exh.7 7 Nail ail clippings of the victim, Exh.8 blood of victim, Exh.9 vaginal smear slide of victim, victim, Exh.10 Pubic Pubic hair of victim. victim. Along with these these samples, samples, there was letter of Medical Officer from Jaslok Hospital which he has brought along with him at the time of his evidence recorded in the Court. He has stated that on the very day itself, he extracted the DNA of these samples and prepared DNA profile.
189.
According to to him him, th thereafter on 26 26/08/2013, he re received le letter
from DCB, CID, Unit III along with the clothes of prosecutrix in sealed
117
condition having blood and semen stains thereon. thereon. Those clothes were, were, Exh. 2 full jeans pant, Exh.3 nicker, Exh.3A hair found on Exh.3, Exh.4 Brassiere, Exh.5B Exh.5B one socks, socks, Exh.7-odhani Exh.7-odhani,, Exh.10 Exh.10 full jeans pant, Exh.11-underwear Exh.11-underwear.. He extracted the DNA from the blood and semen stains on these clothes and prepared DNA profile.
190. 19 0.
P.W.21.21-A. A.S S.I.K .I.Kol olam ambk bkar ar who has, has, as per per the the dir direc ecti tion onss of of P.W.44.44-
P.I.Dhanavade has taken these 12 sealed packets along with the forwarding letter
Exh.90
to
FSL, Kalina
and
obtained its
ackn ackno owledgment.
Subsequent Subsequently ly on 28/08/2013 28/08/2013,, P.I.Dhanavade .I.Dhanavade sent him to collect collect the shoes and two other medical muddemal articles from Jaslok hospital which he has taken to FSL on the very day vide forwarding letter Exh.91.
191.
After the the arre rrest of of all th the ac accused, ed, on on 2 27 7/08/2013 th they were sen sentt
by P.W.44-P.I.Dhanavade to Nagpada Police Hospital along with letter Exh. 194 for taking their blood samples for DNA examination. examination . P.W.22-Dr.Suchitra .W.22-Dr.Suchitra Phad has collected the blood samples of all the five accused for DNA at Nagpada Police Hospital. According to her, they were produced before her along with the requisition. requisition. In the presence presence of witnesses, she collected their blood samples after obtaining their consent and sealed sealed those bottles in the presence presence of the witnesses witnesses and handed over them to the Constable Constable who was
118
along with P.W.44-P.I.Dhanavade in sealed condition, with consent forms of all the five five accused marked marked as X-1 to X-5. The entry to that that effect is made in the Register in the Nagpada Police Hospital which is produced on record vide Exh.93. Nothing has been brought on record record in her cross examination examination except for the fact that the photographs of the accused were provided to her by the police. These DNA samples of the accused were taken to FSL on 27/08/2013 27/08/2013 along with the forwarding forwarding letter by P.W.33-P .W.33-P.N. Nan Nandakuma dakumarr Adhavkar.
192. supp suppor ortt
This evidence of P. P.W.22-Dr.Suchita Pha Phad is get getting complete from from
the the
evid eviden ence ce
of
P.W.4 .W.444-P P.I.D .I.Dha hana nava vade de
and an d
P.W.3 .W.333-
P.N.Adhavkar. P.W.44-P.I.Dhanavade has given him the letter for taking the five accused for getting getting their DNA samples. samples. Accordingly he has taken them first to police surgeon and as per the directions of Police Surgeon to P.W.22Dr.Ph Dr.Phad. ad.
Accor Accordin ding g to him, him, P.W.22 .W.22-D -Drr.Phad .Phad filled filled up the forms forms in the
presence of witnesses and then he came along with sealed samples to DCB, CID, Unit Unit III. There P.W.37-P .W.37-P.I.Ch .I.Chavan avan gave him forwarding forward ing letter to FSL. On the the same same day day, he gave gave thos those e samp sample less an and d othe otherr mudd muddem emal al give given n by P.I.Chavan at FSL and obtained the acknowledgment on the letters-Exh.144 and Exh.145.
119
193.
Ther hereaf eafter on on 30 30/08/2013, pr prosecutri trix wa was ca called fo for ta takin king he her
DNA profile which fact is deposed by prosecutrix and P.W P.W.4-her .4-her mother also. P.W.24-Dr.Baban Shinde, Medical Officer from Nagpada Police Hospital has collected the blood of the victim for DNA along with her consent form and made entry in the Register-Exh.103.
RECOVERY EVIDENCE OF THE CLOTHES OF ACCUSED:194.
At th this st stage, it it ma may be be st stated th that th the cl clothes of of th the ac accused
were seized in the course of investigation. P.W.18-Panch .W.18-Panch Atish Kadam has pro proved ved the the reco recove very ry of the the clot clothe hess of accu accuse sed d No.4-M .4-Moh ohd. d.Sa Sali lim m in pursuance pursuance of the memorandum panchanama panchanama (Exh.80) (Exh.80) on 27/08/2013. 27/08/2013. As per the the evid evidenc ence e of P.W.1 .W.188-pa panc nch h witn witnes esss Atis Atish h Ka Kadam dam an and d P.W.3 .W.377P.I.Chavan, .I.Chavan, accused accused No No.4-M .4-Mohd.S ohd.Salim alim then guided them to his house at Vishnu Nagar Colony, Colony, Chembur. From there, he took them to his house and produced one pant and shirt from from the bundle of clothes which were were kept in the steel cupboard which were seized under panchanama (Exh.81). Both of them have identified Muddemal Article Nos.19 and 20 as the same clothes seized at his his instance. instance. On shirt they found found some dark spots spots and there there was soil on the leg portion of the pant.
195.
On the same day in the evening, P.W.37 P.I. Chavan made
120
inquiry inquiry with accused accused No No.2-S .2-Siraj iraj in the presence presence of panch witness-P witness-P.W.30.W.30Praful Silimkar. During interrogation, accused No.2-Siraj gave a disclosing statement of which memorandum panchanama (Exh.132) was prepared. Thereafter he guided them to Gala No.96, Gate No.4 at Dhobighat and produced produced the shirt and pant and on pant, there there was red spot near the chain and on the left portion, portion, the soil was seen. seen. The seizure seizure panchanama panchanama (Exh. (Exh. 133) was prepared. prepared. Both of them have identified identified Muddemal Article Article Nos.29 and 30 as the same clothes seized at his instance.
196.
There is is al also ev evidence of of re recovery of cl clothes of of ac accused No No.1-
Vijay on 28/08/2013 at his instance under memorandum panchanama (Exh. 83) and seizur seizure e panchanama panchanama of the the clothes clothes (Exh.84). (Exh.84). This evidence evidence is also proved proved through through the evidence evidence of panch witness, witness, P.W.19-K .W.19-Kunal unal Kadam and P.W.37-P .W.37-P.I.Chavan. According to their th eir evidence, accused No.1-Vijay guided them to Tamanna Tamanna Farsan Mart. Mart. There was a small lane between mochi stall and Aarey Stall. There from one pit, he produced the plastic bag containing pant, shirt and underwear. The pant was having red spot near the chain chain and soil at leg portion and seat portion. Both of them have identified Muddemal Muddemal Article Nos.21 to 23 as the same clothes seized at his instance. instance.
197.
There is is th then ev evidence of of re recovery of cl clothes on on 29 29/08/2013 of of
121
accused No.3-Mohd.Kasim on 28.8.2013, proved through the evidence of panch panch witness witness P.W.20 .W.20-V -Vaib aibhav hav Mo Mohit hite e and P.W.37 .W.37-P -P.I. Chavan, Chavan, vide memora memorandu ndum m panchana panchanama( ma(Exh Exh.86 .86)) and seizur seizure e pancha panchanam nama(E a(Exh. xh.87) 87).. According to their evidence, accused No No.3-Mohd.Kasim .3-Mohd.Kasim guided them to his house i.e. at Shanty, near Saat Rasta, Maulana Azad Road and produced his pant and belt. belt. The pant was was having having soil on its seat seat and leg portion. portion. Both of them have identified Muddemal Article Nos.26 and 27 as the same clothes seized at his instance.
198. 19 8.
As per per the the evid eviden enc ce of of P.W.4 .W.444-P P.I.D .I.Dha hana nava vade de,, al all the these se clot clothe hess of of
the accused also were sent to C.A. along with the forwarding letter with the carrier.
199.
The evi evidence of P. P.W.42-Shrikant Lad Lade goe goes to pr prove tha that on
27/08/2013, he has received the sealed medical samples of the accused along with the blood sample sample for DNA profile. profile. He has extracted extracted the DNA of the said samples and applied the method of 17Y STR LOCI using Y filer PCR (Polyme (Polymerase rase Chain Reaction) Reaction) Amplification Amplification Techniq Technique. ue. He has given the detail procedure on the basis of which he has arrived and prepared the Repo Report rtss Exh. Exh.17 175 5 to Exh. Exh.18 181. 1. summarized as follows :
Thes These e find findin ings gs of DN DNA A prof profil ile e can can be
122 CHART OF DNA PROFILE OF VICTIM AND ACCUSED PERSONS
Description of the samples
Name of the accused whose DNA was found
Ex.1 - Vaginal Swab
1) Salim Ansari. 2) Siraj Khan
Ex.2 Ex.2 - Cli Clipp ppin ing g of mat matte ted d pubi pubic c hair hair
1) Vija Vijay y Jad Jadha hav v. 2) Salim Ansari. 3) Kasim Shaikh 4) Chand Shaikh 5) Siraj Khan
Ex.-3 - Pubic hair.
1) Siraj Khan.
Ex.4 & 5 - Vaginal Swab
1) Salim Ansari. 2) Kasim Shaikh. 3) Chand Shaikh. 4) Siraj Khan.
Ex.6 - Rectal Swab
1) Salim Ansari.
Exh.7 - Epithelial cells detected on Nail Clippings
1) Kasim Shaikh. 2) Siraj Khan.
Ex.9 - Vaginal Smear
1) Kasim Shaikh. 2) Chand Shaikh. 3) Siraj Khan.
Ex.2 - Full Pant
1) Salim Ansari. 2) Kasim Shaikh. 3) Chand Babu. 4) Siraj Khan.
Ex.3 - Nicker
1) Siraj Khan.
Ex.5 - B One Socks
1) Salim Ansari. 2) Kasim Shaikh. 3) Chand Babu. 4) Siraj Khan.
Ex.7 - Odhani
1) Vijay Jadhav 2) Siraj Khan.
i) DNA profil profile e of blood blood detect detected ed on full full jeans jeans pant pant (Ex.2) (Ex.2) of prosecutrix, Odhani (Ex.7) found at scene of crime, underwear (Ex. 11) juvenile-in-conflict-with-law, Chand and blood sample (Ex.8) of
123
Description of the samples
Name of the accused whose DNA was found
prosecutrix are identical and from one and same same source source of female female origin. DNA profiles matched with matched with the maternal and paternal alleles in the source of blood. ii) ii) DNA DN A profi profile le of hair hair (Ex. (Ex.33-A) A) foun found d on nick nicker er (Ex. (Ex.3) 3) of prosecutrix and blood sample (Ex.8) of accused No.2 Siraj Rehmat Khan are identical and from from one and same same source source of male origin. origin. DNA profiles matched with matched with the maternal and paternal alleles in the source of blood.
DNA EVIDENCE ON THE CLOTHES OF ACCUSED:ACCUSED:200.
As per evidence of P.W.42 Shrikant Lade, DNA Expert, on
5.9.2013 he has received the clothes of the accused containing blood stains. Those clothes were:Exh.3-Full pant of accused No No.. 2 Siraj Exh.7-Full Jeans pant of accused No No.1 .1 Vijay Exh.8-Underwear of accused No.1 Vijay Exh.10-Full Jeans Pant of accused No No.3 .3 Mohd. Kasim
201.
He has received these articles along with the letter dated
2.9.2013 (Exh.63). He has extracted DNA from the blood stains from these clothes and prepared controlled DNA profile of blood as per Exh.181. He compared this DNA profile with DNA profile of the prosecutrix and found
124
that blood detected on Exh.3 full pant of accused No.2 Siraj and Exh.10 full Jeans pant of accused No.3 Mohd. Kasim and controlled DNA profile of the pros prosec ecut utrix rix were were iden identic tical al an and d coll collect ected ed from from on one e an and d same same so sour urce ce of female origin. Accordingly, Accordingly, he has prepared report Exh.180.
202.
This fo forensic ev evidence of of DN DNA ma matching le leaves ab absolutely no no
iota of doubt about the involvement of all the four accused in the incident. The finding of DNA of accused in the vaginal and anus swab of prosecutrix clinches the involvement of the accused in the incident.
203.
It is perti rtinent ent to n no ote th that the vaginal and re rectal swabs and na nail
clippings of the victim were taken on the night of 22/08/2013 itself at the time of her examination, as stated by P.W.39-Dr.Asmita Patki and they were sent to FSL on 23/08/2013 as stated by P.W.15-P .W.15-P.C. .C. Kaginkar i.e. very much befor before e these these accused accused were were arrest arrested. ed.
Theref Therefor ore, e, it totall totally y rules rules out the
allegations of tampering with the medical samples, as contended by defence Couns Co unsels els.. It also rules rules out the defence defence of the accuse accused d that that in the police police custody, their semen was extracted and it was spread on the clothes of the prosecutrix. prosecutrix. Even if the finding finding of matching matching of DNA on the clothes of the prosecutrix, for the sake of argument, is kept aside, even then findings of DNA of these four accused accused and their associate associate Chand, juvenile-in juvenile-in-conf -conflictlict-
125
with-law on the vaginal and rectal swab of the prosecutrix can in no way be ignored, as they were collected and sent to F.S.L.much before the accused were arrested. It conclusively clinches the entire issue and involvement of the accused in the offence.
204.
The evidence of P.W.42-Shrikant Lade is very clear that he
started the extraction of DNA on 23/08/2013 i.e. much before the arrest of the accused. accused. Theref Therefor ore, e, there there is no question question at all of anyone anyone playing playing or tampering tampering with the forensic forensic evidence. The cross-examina cross-examination tion of P.W.42.W.42Shrikant Lade therefore that, he has not decided the age of semen and blood stai stains ns an and d ther there e is no diff differ erenc ence e betw between een the seme semen n or bloo blood d oo oozi zing ng naturally or extracted forcibly, becomes irrelevant. This argument would have some weight weight if the medical medical samples of prosecutrix prosecutrix were collected collected and sent to F.S.L.after the arrest of the accused. That is not the case here at all. Everything Everything has been done before the accused were were arrested. So absolutely absolutely no question of accused being implicating falsely by tampering with forensic evidence.
205.
Therefore, th the fu furth rther ar argument of of de defence ab about th the re recovery
of the clothes of accused, especially of accused No.1-Vijay, being fabricated also looses all its significance, if one consider this clinching piece of forensic
126
evid evidenc ence e whic which h pro proves the the DN DNA A of all all these these four four accu accuse sed d on medi medica call samples of the prosecutrix which were collected and analysed before the arrest of the accused.
206.
In th the fa face of of thi thiss st strong evi evid denc ence, ab absolu olutel tely no no ot other her evi evide den nce
is required though there is evidence proving that even blood found on the odha odhani ni reco ecovere vered d from from the the spot spot was was matc matchi hing ng with with the the bloo blood d of the the prosec prosecutri utrix. x. There There is also also evidenc evidence e proving proving that the earth found on the clothes, shoes of the prosecutrix and on the clothes of the accused was of the similar origin as collected from the spot proving, their presence at the spot.
CHALLENGES RAISED BY DEFENCE : 207.
In th the li light of of al all th these st strong an and cl clinching pi pieces of of mu multiple
evidence, evidence, the defence defence of the accused that they are implicated implicated falsely due to the pressure of Media and senior police officers has to be rejected outrightly. Defence to their knowledge, has no case at all, hence, they have to tried advance some outlandish submissions.
208.
It is is con conttended ded tha thatt ne neither the the pros rosecu ecutrix rix no nor An Anurag or or Teja ejal
have produced any evidence to show that they were working in Media. It is
127
also argued that no evidence is produced to show any such Magazine by name 'Time 'Time Out' is actually actually published. published. It is urged that only with a view to attrac attractt the attentio attention n of Media, Media, prosec prosecutio ution n has created created a story story that that they they were working in Time Out Magazine. To say the least, where is the need for production of any documentary evidence when there is consistent evidence of these three witnesses. witn esses. As rightly submitted sub mitted by Spl.P.P Spl.P.P., ., why every time tim e one should insist insist on documentary documentary evidence? In the opinion of this Court Court also, why the witnesses should be disbelieved when they t hey are stating on oath with full responsibility. responsibility. Only when we start believing oral testimony of witnesses, witnesses, we will get honest witnesses.
209.
The th theory that to to ma make th the ca case se sensational an and to to at attract th the
attenti attention on of Media, edia, prosec prosecutri utrixx has posed posed hersel herselff as Photoj Photojourn ournali alist st is totally ludicrous and has to be rejected outrightly. outrightly. The complaint is lodged within less than th an hour of incident and that too after such mentally shocking incident. incident. Hence Hence where was the time to create create or concoct such such story? The statement of P.W.17-Anurag is also recorded on same night in which he has stated that he and prosecutrix were working as Photojournalists in Time Out Magazine. Magazine. The circumsta circumstances nces in which the incident has taken place, place, can it be believed that one will will think of making the story sensational sensational?? As a matter of fact, when a woman is very much reluctant to disclose any of such
128
incident even if it really occurs, where the question arises of prosecutrix trying to attract the attention of Media ?
210.
Moreover, wh what wa was th the re reason fo for th the pol police al also to to co concoct
such case, if it has not happened. There was no reason reason for police at all to be under pressure when they had solved the entire case within one or two days and an d had had been been quic quick k to arre arrest st the the accu accuse sed d an and d cond conduc uctt the the prom prompt pt investi investigat gation, ion, as stated stated above. above. It is hardly hardly believa believable ble that, either either due to Media pressure or pressure of the senior police officers, such a story will be concocted.
211.
Another outrageous defence advanced is about Anurag
commit committin ting g such such sexual sexual inter intercou course rse with with prosecu prosecutrix trix and the argume argument nt advanced that why Anurag has not run away, when his legs were not tied? Both these defences revolt against the reason or common sense of any civilized civilized prudent man. How How, in the first place, place, Anurag will run away from the spot when his female colleague was held behind and when he was hearing hearing her her scream screams? s? Can he he leave leave her there there and and run away? away? It is total totally ly unimaginabl unimaginable e or unacceptable unacceptable.. Moreove Moreoverr, when there were five persons threatening him, beating him, where was the scope for him to run away, even even if he wanted wanted to? As a matter matter of fact, fact, the courageou courageouss stand taken taken by
129
both the prosecutrix and Anurag in lodging the report immediately with the police and of Anurag in supporting her in entire endeavour, not only during the incident or thereafter in the trial also, needs to be encouraged and appr apprec ecia iate ted. d.
Inste Instead ad of that, that, defen defence ce is mali malign gnin ing g them them by putti putting ng
sugg sugges estio tions ns whic which h have have no basi basiss an and d advan advanci cing ng argu argume ment ntss whic which h are are absol absolut utel ely y ridic ridicul ulou ous. s.
The The find findin ing g of DN DNA A of accu accuse sed d on the the medi medica call
samples and clothes of prosecutrix totally rules out defence that Anurag might have committed rape on her.
DISCRE DISCREP PANCIES ANCIES AND OMISS OMISSION IONS S POINTE POINTED D OUT BY THE THE DEFEN DEFENCE CE COUNSELS:212.
Even as as re regards th the al allege eged di discrepa epanci ncies or or om omissions po pointed
out by the defence Counsels, it has to be stated that they do not even slightly or remotely also touch the substratum of the prosecution case. case. They are too minor, to be ignored, even without citing them. But just for completeness of the judgment, I am giving some instances like: 1.
As per per fair fair map map prod produc uced ed by by P.W P.W.1 .1 San Sande deep ep Kan Kanvi vin nde, de, ther there were two entrances to the spot. However, However, prosecutrix and P.W.17 Anurag have stated that there was only one entrance.
2.
Doctors ors have not not stated anything abo about pre presenc ence of P. P.W.5 Tejal ejal in the the ho hosp spit ital al thou though gh she she has has stat stated ed that that she she was was
130
present upto 1.00 a.m. in the hospital. 3.
If pros prosec ecut utri rixx was was no nott abl able e to to wal walk k in in the the hos hospi pita tall and and she she was was supported by P.W.5 Tejal and P.W.17 Anurag, then how she was able to walk 25-30 meters from the spot till they got the cab?
4.
Ther here is no no cert certif ific icat ate e of Doc Docto torr that that pro prose sec cutri utrixx was was in a fit fit state of mind, on her complaint (Exh.39).
5.
In phot photog ogra raph phss (Ex (Exhs hs.5 .59/ 9/1 1 to to 59/ 59/22 22)) nam name e of 'Sha 'Shakt ktii Mil Mill' l' is no nott appearing on any structure.
6.
Pho hoto togr grap aphs hs in the the Mem Memor ory y Car Card d can can be be edit edited ed and and mod modif ifie ied. d.
7.
Why Why the the mobi mobile le of of pros prosec ecut utri rixx and and cam camera era of Anu Anurrag wa was not not seized immediately after the incident?
8.
If she she was was bleed bleedin ing g pro profu fusel sely y, then then why why sta state teme ment nt of taxi taxi drive driverr was not recorded to show that there were bleeding stains on the seat of the taxi.
9.
The Magistrate, who has recorded the statement of the pros prosec ecut utri rixx u/s. u/s.16 164( 4(5) 5) of Cr.P Cr.P.C. .C. is no nott exam examin ined ed by the the prosecution.
10.. 10
The The make make of mob mobil ile e of accu accused sed No. No.33-Mo Mohd. hd.Ka Kasi sim m and and Chand, Chand, juvenile-in-conflict-with-law is not stated by P.W.36 .W.36 Aakash Swamy.
11.
Who paid the charges of the medical treatment of the
131
prosecutrix? Where are the discharge papers? The prescription not produced? 12.. 12
Ther There e may may be man many y pers person onss of the na name me 'M 'Moh ohd. d. Kas Kasim im'. '.
13.
If, as per evidenc evidence e of the prosec prosecutri utrix, x, all the accused accused have have wipe wiped d out their penis after forcible sexual intercourse with her socks, then socks must be wet, then how can she wear them after the incident?
213.
To sa say th the lea leasst, al all th these al allege eged di discrepa epancies ar are in in res resp pect of of
such irrelevant details that they do not have effect on the core of the prosecution case. The law is well settled, as held in the authority of Rammi @ Rameshwar Rameshwa r V State of M.P., M.P., AIR 1999 S.C. 3544 that, “Courts should bear in mind that it is only when discrepancies in the the evid eviden ence ce of witn witnes esss are are so inco incomp mpat atib ible le with with the the credibility of his version, Court is justified to jettisoning his evid eviden ence ce.. But But too too seri seriou ouss a view view to be adopt adopted ed on mere ere variations variations falling falling in narration narration of an incident either either as between evidence of two witnesses or as between two statements of the same witness, is an unrealistic approach for judicial scrutiny. scrutiny. Moreo More over ver, all all incon inconsi sist stent ent stat statem emen ents ts are are no nott suff suffic icie ient nt to impeac impeach h the credibi credibilit lity y of the witness. witness. A former former statemen statement, t, though though seemin seemingly gly inconsi inconsisten stentt with with the evidenc evidence, e, need not necessa necessarily rily be sufficie sufficient nt to amount amount to contradic contradiction tion.. Only Only inconsistent statements which are liable to be 'contradicted' can affect the credit of the witness. 214.
One can also place reliance on State of U.P. V M.K.Anthony, AIR
132
wherein the Supreme Court held that, 1985 SC 48 wherein “While appreciating the evidence of a witness, the approach must be whether the evidence of the witness, when read as a whole, appears to have a ring of truth. The infirmities, deficiencies and drawbacks that are pointed out in evidence may be kept in background but if they are not against the general tenor of the evidence given by the witness, the evidence cannot be rejected.” rejected.” 215.
Herein the the cas case, wha whatever infirmities or dr drawbacks that are are
pointed out in the evidence of the prosecutrix or other witnesses are not against against the general tenor tenor of the evidence given by them. them. The evidence evidence of each and every witness witness examined by the prosecution prosecution in this case has a ring of truthfulness, colour of consistency and a sense of straightforwardness, as a result of which it inspires confidence in judicial mind.
216.
As held in Narayan Chetanaram Chaudhary and Anr. V State of
Mahar Maharash ashtr tra a
2000 200 0
relied ed S.C.C S.C.C.(C .(Cri ri)15 )1546 46 reli
upon upon
by
Spl. pl.P.P.,
mino minorr
cont contra radi dict ctio ions ns are are boun bound d to appear appear even even in the the stat statem emen ents ts of trut truthf hful ul witnesses as memory sometimes plays false and sense of observation differs from from person to person. person. Hence Hence the omission omissionss in the earlier earlier statemen statement, t, if found to be of trivial details, as in the present case, the same would not cause any dent in the prosecution case.
133
217.
Most imp importantly, a wit witness, lik like pro prosecutrix, a you young gir girl wh w ho
had already undergone the untold trauma is liable to overawed by the court atmosphere and piercing cross-examination made by the different Counsels and out of nervousness nervousne ss mix up facts and get confused regarding sequence of the events or fill fill up details from imagina imagination tion at the spur of moment. moment. The sub-conscious mind of the witness sometimes so operates that on account of the fear of looking foolish or being disbelieved, though the witness is givi giving ng truthf truthful ul an and d hon hones estt acco accoun untt of the occu occurr rren ence ce of the the inci inciden dentt witnessed by him, he may embroider or improvise some part of evidence. Perhaps it is a sort of psychological defence mechanism activated on the spur of moment. moment. These reasons reasons which which are so elaborately elaborately laid down down in the case case of Bhoginbhai Hirjibhai V State of Gujarat, AIR 1983 SC 753 , 753 , perfectly perfectly apply to the facts of the present case.
218.
Here ho horrendous in incident ha has oc occurred al all of of a su sudden. The
circ circum umst stan ance cess in whic which h the the pros prosec ecut utri rixx an and d witn witnes esss Anur Anurag ag foun found d thems themsel elves ves were were such such that that they they cann cannot ot be expec expecte ted d to tapetape-re reco cord rd or remember all the details and thereafter to reproduce them after the incident before the police, and thereafter in the Court when they were subjected to pier pierci cing ng an and d sear search chin ing g cros crosss exam examin inati ation on by four four diffe differe rent nt defe defenc nce e Counsels, which cross examination is running not only in several pages but
134
on every minor details details of the incident. incident. It would would have been unnatural unnatural and unbelievable if such discrepancies discrepancies had not occurred in their evidence. The fact that such minor discrepanci discrepancies es are appearing in their testimonies testimonies gives cred creden enti tial al to thei theirr depo deposi siti tion on..
They They give give inbu inbuil iltt guar guaran ante tee e of the the
truth truthfu fulne lness ss of thei theirr test testim imon ony y.
Corro Co rrobo bora rati tion on of the the evide evidenc nce e with with
mathematical mathematical niceties niceties cannot be expected expected in criminal criminal cases. As held by the Apex Court in Leela Ram Vs. State of Haryana 1999(9) S.C.C. 526, minor embellishments or variations in details should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.
219.
Therefore, whatever omissions, contradictions which are
poin po inte ted d ou out, t, have have to be asse assess ssed ed in the the back backgr grou ound nd of the the inci incide dent nt happened, the mental condition in which complaint came to be recorded. Hence, unless the contradictions are of the material dimensions, unless the contradictions are such which go to the root of the matter, unless they make the evidence bereft of credence, much importance cannot be given to these minor minor omissi omissions ons and contra contradic diction tions. s.
When When these these witnesses witnesses are cross
examined about such with minutest details, it cannot be expected that their evidenc evidence e should should be free free from from such such discr discrepan epancie cies. s. These These discrep discrepanc ancies ies therefore do not affect the substratum of prosecution case.
135
220.
When pr presence of of P.W.5 Te Tejal on on th the sp spot is is ve very much pr proved
through evidence of the prosecutrix, her mother, Anurag and also through the evidence of P.W.41 P.S.I.Patil, it is not necessary that Doctors should also speak about her presence. Moreover, P.W.40-Dr.Nisha Singh has also stated that prosecutrix was accompanied with two female colleagues. No separate certificate of Doctor is required on the complaint when both the doctors have categorically stated in evidence before the Court and at the time of recor recordin ding g of her compla complaint int by two Polic Police e Office Officers rs P.S.I.P .S.I.Pati atill and WPSI Mhatre, Mhatre, prosecutrix prosecutrix was in fit condition condition to give the statement. statement. Similarl Similarly y, when the make of mobiles recovered from the accused are mentioned in the Panchanamas along with IMEI number, number, it is not required required to be stated in the evidence before the Court.
221.
As re regards de defects in in th the in inves vestigation like pol polic ice e no not se seizing th the
mobile and shoes of the prosecutrix, and camera of Anurag on the same night, night, these defects defects are too minor minor.. Defect Defectss in investiga investigation tion,, as per well well sett settle led d po posi siti tion on of law law, do no nott affe affect ct cred credib ibil ilit ity y of the the evid eviden ence ce of prosecu prosecution tion witnes witnesses ses.. There There is ample case law on the said aspect aspect like Dhanaj Singh alias Shera and Ors. V. State of Punjab, 2004 S.C.C.(Cri) 851 and C.Mun C.Muniap iappan pan and Ors. Ors. V State State of Tamiln amilnadu adu (2010 (2010)) 3 S.C.C. S.C.C. (Cri) (Cri) 140 1402 2 wherein it is categorically held,
136
“If primacy is given to such designed or negligent investigation, to the omissions or lapses by perfunctory investigation, the faith and confidence of the people would be shaken, not only in the law-enforcing agency but also in the administration of justice as doing so would tantamount to playing into the hands of the Investigating Officer.” Therefore, the alleged defects in the investigation which do not go to the root of the matter and do not affect the core of substratum of prosecution case have absolutely no impact on the outcome of the case.
222.
The con onttent ention is is al also ra raised by le learne rned Co Counsel Mr Mr. Sa Salsingikar
for accused No.1 that, in the complaint prosecutrix has not stated that it was accused No.1 Vijay who has forced his penis in her hand and asked her to shake shake and henc hence, e, it is an impr improv ovem ement ent made made by her in the the cour course se of evide evidenc nce. e.
How owev ever er,, it is perti pertine nent nt to no note te that that in her her suppl supplem emen entar tary y
statement statement recorded recorded immediately immediately on 23.8.2013, 23.8.2013, she has stated this fact. In evidence before the Court in Para 30 in cross-examination she has stated that person who had compelled her to take his penis in her hand was one of the two persons who had accosted her and Anurag initially saying that they were from Railway. Railway. She has further identified in the cross examination accused No.1-Vijay as the same person who has compelled her to take his penis in her hand. Needless to say that FIR is not an encyclopedia or substantive substantive piece piece of evidence. evidence. As held in the authority authority of Bijoy Bijoy Singh Singh and
137
Anr. Anr. V State of of Bihar, Bihar, (2002) 9 S.C.C. 147 , “It is not the requirement of law that the minutest details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim, apparently under the shock of the occurrence reported has always to be kept in mind.” 223.
It ca can on only be be us used to to co corroborate th the st statement of of th the ma maker
u/s. 161 of The Evidence Act or to contradict him u/s. 145 of the said Act.
224.
An att attempt is al also ma made to co contend tha that the the Sp Spl.P.P. has has, by by
asking various questions to prosecutrix and other witnesses, tried to elicit the explanations and thereby led the evidence of the facts which are not stated in the complaint complaint or in the statements statements recorded recorded by police. police. Examples Examples are cited of Spl.P.P. seeking clarification from the prosecutrix by asking her questions as to why she has selected the way from Mahalaxmi Railway Station to proceed towards Shakti Mill Premises? How much time she and Anurag were taking photographs? What was the approximate distance between the place where they were standing and the place where the cars and people were passing? passing? How How did accused No.3-M No.3-Mohd.K ohd.Kasim asim call other other two persons? In which language language accused were talking? talking? What What was Anurag's Anurag's reaction when accused said that he has committed murder at that place
138
some days back? Why did she talk with her mother on that day in Hindi lang languag uage? e? What she she un under derst stan ands ds by 'he 'he rape raped d me'? me'? Can Can she she give give the description description of broken glass bottle or cement platform or of the room where she was taken? Can she state the distance between the cement block where she was lying lying and the entrance entrance of that room? Whethe Whetherr the said said cement block on which she was lying was visible from the place where Anurag was tied? What was the reason for not disclosing of certain facts to the police when complaint was recorded? It is submitted that, the answers given by the prosecutrix to all these questions put up by Spl.P.P. are in the nature of elaborations and improvements and, therefore, they should be excluded from the consideration.
225.
It is is ur urged by by de defence Co Counsels th that all all th these qu questions we were
asked to the prosecutrix, only with an intention to give opportunity to her to bring on record more details details of the incident incident which are not appearing in the complaint or in her statement recorded by police and thereby to fill up the lacu lacuna na by obta obtain inin ing g her her expl explan anat atio ion n on certa certain in aspe aspect ctss to forti fortify fy the the prosecution prosecution case. case. Accordin According g to learned Counsels Counsels for accused, accused, the answers given by the prosecutrix and other witnesses to the questions which are asked by Spl.P.P. are therefore required to be excluded from consideration, as they are improvements in an attempt to fill up the lacunae and cover up the
139
infirmity in the prosecution case.
226. 22 6.
Howeve ever, as as rig right htly ly subm ubmitte itted d by by Spl Spl.P .P.P., it is the duty uty of of Pub Publlic
Pros Prosec ecut utor or to elic elicit it these these fact facts. s. As held held in the case case of Chandrashekhar Sureshchandra Bhatta Vs. State of Maharashtra, 2001 S.C.C. (Cri) 1504, “It is prerogative of the Public Prosecutor to elicit such points from a witness witness as he deems necessary necessary for the case. case. No Public Public Pros Prosec ecuto utorr can can be na nail iled ed to the the stat statem emen entt reco record rded ed un unde derr Section 161 of Cr.P.C.”. There is always always some difference difference between the statement recorded recorded by police and the evidence evidence recorded recorded in in Court. The Public Public Prosecutor Prosecutor is hence hence not bound or expected to stick up to the police statement. statement. But, it is his job to get proper explanation explanation from the witness to bring true facts before the Court, to assi assist st the the Cou ourt rt in arri arrivi ving ng at the the just just deci decisi sion on.. Such uch clar clarif ific icat atio ions ns,, elucidations or explanations obtained by the Public Prosecutor by asking questions to the witness, while discharging his duty towards the Court, as office officerr of the Court, Court, can not affect affect credib credibili ility ty of the witnes witness. s. In the said process of probing the witness to ascertain the truth, if some questions are asked asked to the witnes witnesss by Public Public Prose Prosecut cutor or,, witnes witnesss is bound bound to depose depose certain more details of the incident which were not elicited from him when he was interrogated interrogated by the police. police. At such time, time, witness may also recall recall or remember certain things in respect of which he was interrogated by the
140
police.
227.
In Naray arayan an Cheta hetana narram Chau Chaudh dhar aryy and and Anr Anr. V State tate of
Maharashtra, 2000 S.C.C. (Cri) 1546 relied upon by Spl.P.P. also, it is observed that, “If the so called improvements are in fact the details of o f narration extracted extracted by the Public Prosecutor Prosecutor and the defence Counsels in the course of examination in chief and cross examination of the witness, then they cannot be considered as dishonest improvements made by by the witness in his or her testimony. testimony. It is alwa always ys nece necess ssary ary for for the the Co Court urt whil while e asses assessi sing ng the the alle allege ged d omissions or improvements to see whether they are dishonest impr improv ovem ement entss capa capabl ble e of disl dislodg odgin ing g the the prose prosecu cuti tion on case case,, creating doubt about his veracity and whether they are on vital point to brand such witness as a got up witness. If the omission is totall totally y irreco irreconci ncilin ling g with with the prosec prosecutio ution n story story,, then then only omission amounts to contradiction.” 228.
Whatever ver om omissions or contrad radiction onss which are are po pointed out out in
the evidence of either the prosecutrix or other witness in the present case have occurred because of Spl.P.P. seeking some elaboration from the witness and not because the witness witness has improved improved the story. story. As held in the above said said auth author oriity of
Chand Chandra rashe shekh khar ar Sure Sureshc shchan handr dra a Bhatt Bhatta a V State State of
Maharashtra, “Ma Marg rgin inal al vari variat atio ions ns on cert certai ain n aspe aspect ctss as betw betwee een n the the statement of the witness recorded by the police under Section 161 Cr.P.C. and his testimony in the Court can not be dubbed as impr impro oveme vement ntss made made with with an any y sini sinist ster er moti motive ve.. They They are are elabo elabora ratio tions ns elic elicit ited ed by the the Publ Public ic Pros Prosec ecut utor or durin during g the the
141
examination-in-chief.” 229.
Learned Sp Spl.P.P. ha has al also re relied up upon th the au authority of of Esher Sing Sing
V State of A.P., A.P., (2004) 11 S.C.C. S.C. C. 585 to to submit that, though it is true that some statement ents were made for the first rst time in court an and d not durin ring investigation, it has to be seen as to what extent they diluted the testimony of prosecutrix prosecutrix or other witnesses. witnesses. A mere elaboration elaboration cannot cannot be termed as discrepancy. discrepancy. When the basic features are stated, stated, unless the elaboration is of such nature that it creates a different contour or colour of the evidence, the same same cannot be said to have have totally totally changed changed the comple complexio xion n of case. case. If whatever is stated is only by way of o f clarification on question being asked by Public Public Prosecutor, Prosecutor, then as held in authority authority of Jai Karan and Ors. V State of U.P., U.P., 2005 S.C.C. S .C.C. (Cri) (Cr i) 812 , 812 , it cannot be termed as an improvement.
230.
The ev evidence on on re record al also le leads to to no no ot other co conclusion bu but to to
hold ho ld that that the the accu accuse sed d pers person onss have have acte acted d in purs pursua uanc nce e of crim crimin inal al conspi conspirac racy y hatche hatched d by them. them.
The evidenc evidence e of prosecutri prosecutrixx proves proves that
accused No.3-Mohd.Kasim came second time and she pleaded with him to let her go because she was bleeding and having lot of pain, he started laughing and showed her the broken glass bottle and further stated, “ she cannot go anywhere as she does not know how “harami” he is and she is not
142
the first first girl on whom whom they have committ committed ed the rape. rape. Alread Already y they have raped several other girls but no one has arrested them” them”. This is a sort of extra judicial confession made by accused No No.3 .3 Mohd. Kasim before prosecutrix. prose cutrix. This evidence of prosecutrix prosecutrix along with the evidence of Call Detail Detail Records and evidence evidence of P.W.36.-A .W.36.-Aakash akash Swamy Swamy,, discussed discussed in detail herein herein above, above, goes to prove that that all the accused have hatched this criminal conspiracy of haunting and accosting the girls when they came to the deserted places or they are lured in the deserted place of Shakti Mill premises, as happened in the case of prosecutrix and then subjecting them to most gruesome form of sexual assault. The charge of criminal conspiracy therefore, stands proved beyond reasonable doubt.
TO SUM UP : UP : 231.
T he
evidence
of
prosecutrix
regarding
sexual
incident
support supported ed with with forens forensic ic evidence evidence goes to prove prove the charge charge of crimina criminall conspiracy, gang rape, unnatural offence and of compelling her to disrobing as contem contempla plated ted under under Section Sectionss 120 120-B -B,, 376 376(D) (D),, 377 and 354 354(B) (B) stands stands proved against all the accused.
232.
The evidence of the prosecutrix about accused No.4-
Mohd.Salim showing her pornographic clip which contain sexually explicit
143
lasc lasciv iviou iouss mater materia iall an and d aski asking ng her to do acco accord rdin ingl gly y go goes es to prov prove e the the charge under Sections Sections 354(A)(ii 354(A)(iii) i) of I.P.C. and Section Section 67 of Information Information Technology Act, 2000.
233.
The evi evidence of pr prosecutrix and and P. P.W.17-Anurag goe goes to pr prove
furt furthe herr char charge ge of wron wrongf gful ul restr estrai aint nt,, wron wrongf gful ul conf confin inem emen entt an and d of voluntarily voluntarily causing hurt and criminal intimidation, intimidation, as contemplated contemplated under Sections 341, 342, 323 and 506(II) of I.P.C.
234.
The ev evidence of of pr prosecutrix go goes to to pr prove th that he her ph photograph
was taken on mobile by accused No.4-Mohd.Salim No.4-Mohd.Salim and the said photograph is dest destro roye yed d by the the acc accused used kn kno owing ing full ully well ell tha that the the offe offenc nce e is committed. committed. The shirt of accused accused No.3-M No.3-Mohd.Ka ohd.Kasim sim is also destroyed destroyed after the incident, knowing fully well that offence is committed and, therefore, the charge charge under Sectio Section n 201 r/w 120 120-B -B of I.P.C. is requi required red to be held held proved.
235.
Havin ving come to the concl nclusi usion that hat prosecution has succeed eeded
in proving the guilt of the accused on all the scores beyond any shadow of doubt, I stop my dictation here in order to hear the accused and learned
144
Counsels along with Spl.P.P. on the point of sentence.
(Dr.Mrs.Shalini S. Phansalkar-Joshi) Principal Judge, Bombay City Civil Court & Sessions Judge, Gr.Bombay. Gr.Bombay. 236.
On the question of sentence, it is submitted by Spl.P.P. Shri
Ujjw Ujjwal al Nika Nikam m that that cons conside iderin ring g the serio serious us offe offenc nces es whic which h are are pro proved against against the accused accused like the offence offence under Section 376(D) of I.P.C. which provides for the maximum punishment of life imprisonment which shall mean imprisonment for the remainder of that person's natural life, it would be nece necess ssar ary y for for this this Cou ourt rt to give give ampl ample e op oppo port rtun unit ity y to both both,, the the prosecution and also the accused to make submissions on the quantum of sentence.
237.
In th this re respect, he he ha has re relied up upon th the tw two au authorit rities of of Ap Apex
Court Co urt that that of Anshad and Ors. V State of Karnataka 1994 S.C.C. (Cri) 1204 and Allaudd and Allauddin in Mian and Ors. V State of Bihar 1989 S.C.C.(Cri) S.C.C.(Cri) 490 wherein 490 wherein Apex Court in para 10 of its judgment has considered the provisions of 235(2) 235 (2) of Cr.P Cr.P.C. and laid laid down down that that these these provis provisions ions are are requir required ed to be follo followed wed in spirit spirit and not as a mere mere formality formality.. In the words words of the Apex Apex Court, “The sentencing court must approach the question seriously and
145
must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are are brought on record.” record.” It was further further held that, “Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence.”
238.
The Ap Apex Co Court ha has in in th this au authority la laid do down a ge general ru rule
that, “The trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence befor before e it an and d ther therea eaft fter er prono pronounc unce e the sent sentenc ence e to be impo impose sed d on the the offender” offender”.. This general general rule was was laid down by by Apex Court Court considering considering the fact that on the pronouncement of holding the accused guilty, accused may be in a state tate of shoc shock k an and d may may no nott be in a po posi siti tion on to adva advanc nce e the submission on the very day itself.
239.
The def defence Counsels hav have als also sub submitted that it wo would be
proper, if the matter is adjourned till next date so that, both the prosecution and defence can get sufficient opportunity to bring facts and circumstances on record record which may have bearing bearing on the quantum of sentence sentence.. In view ther thereo eof, f, pron pronou ounc ncem emen entt of sent senten ence ce is rese reserv rved ed till till tomo tomorr rro ow i.e. i.e. 21/03/2014 in order to hear the prosecution and accused on the point of
146
sentence.
(Dr.Mrs.Shalini S. Phansalkar-Joshi) Principal Judge, Bombay City Civil Court & Sessions Judge, Gr.Bombay. Gr.Bombay.
20/3/2014
Resumed on 21/03/2014 240.
The Ju Judgment wa was st stopped to to he hear th the ac accused on on th the qu question
of sentence. sentence.
At this stage, stage, learned Spl.P Spl.P.P. has filed an application application under
Section 211 of Cr.P.C. submitting that as three accused in this case, namely, accused accused No No.1-Vij .1-Vijay ay,, accused accused No No.3-M .3-Mohd.Ka ohd.Kasim sim and accused accused No No.4-M .4-Mohd. ohd. Salim have been held guilty and convicted by this Court in Sessions Case No. No. 914/2013 for committing various offences punishable under Sections 120-B, 376(D), 377, 354-B, 341, 342, 323 and 506(II) of I.P.C., the prosecution would like to request the Court to frame the additional charge against these three accused accused for the offence offence under Section Section 376(E) 376(E) of I.P.C. In his opinion, opinion, it is expedient in the interest of justice to frame such additional charge.
241.
On thi thiss appli plication on,, th the or order of of 'accused to to fi file sa say' is pa passed.
242.
Learned Co Counsels fo for all all th the ac accused su submitted th that it it is is th t he
question of life and death of the accused persons and they would like to
147
have some time to file say on this application. Hence, the matter is reserved till 24/03/2014.
(Dr.Mrs.Shalini S. Phansalkar-Joshi) Principal Judge, Bombay City Civil Court & Sessions Judge, Gr.Bombay Gr.Bombay..
21.3.2014 Resumed on 03/04/2014 243.
In view of the application given by Spl.P.P. at Exh.230 on
21/03/2014 and the order passed thereon on 24/03/2014, the additional charge is framed by this Court against accused No.1-Vijay Jadhav, accused No.3-M .3-Moh ohd. d.Ka Kasi sim m
and an d
accu accuse sed d
No.4-M .4-Moh ohd. d.Sa Sali lim m
for for
the the
offe offenc nce e
punis punishab hable le un unde derr Sect Section ion 37 376( 6(E) E) of IPC IPC vide vide Exh.2 Exh.234 34 on 24 24/0 /03/2 3/201 014. 4. Though accused have challenged the order of framing of additional charge by pref preferr errin ing g Crimi Crimina nall Writ Peti Petiti tion on Nos os.1 .118 181/ 1/20 2014 14 an and d 11 1182 82/2 /201 014 4 in Hon'ble High High Court, vide its order dtd.27/03/2014, Hon'ble High High Court has declined declined to interfere in the said said order and kept this this issue open. In view of this additional charge, following point arise for my determination and I record my finding thereon for the reasons stated below: POINTS 1.
Whether th the pr prosecution pr proved th that ac accused No.1-Vijay Jadhav, accused No.3-Mohd.Kasim and an d accu accuse sed d No.4-M .4-Moh ohd. d.Sa Sali lim m have have been been previo viously convic victed by this Court on
FINDINGS
148
20/03/2014 in Sessions Case No.914/13 for the offenc offence e punisha punishable ble under under Secti Section on 37 376(D 6(D)) of I.P I.P.C. .C. in resp respec ectt of the the rape rape comm committ itted ed by these accused, constituting a group, between 7.30 to 8.30 p.m. on 31/07/2013 at Shakti Mill premises on prosecutrix of that case?
.. Yes
: R E A S O N S : S : 244.
To prove this charge, the prosecution has examined two
witnesses. One is P.I.Nikumbe who was the Investigating Officer in C.R.No. 87/2013 87/2013 in respect of which Sessions Sessions Case No.914/2 No.914/2013 013 was filed. He has produced on record the certified copy of the judgment in Sessions Case No. 914/2013 at Exh.240. Further he has identified these three three accused to be the the same accused who were also convicted in Sessions Case No. 914/2013.
245.
The pr prosecution ha has al also ex examined th the As Assistant Re Registrar of of
City Civil and Sessions Court, Shri Sugam Namdeo Redij, who has issued the warrant of commitment on o n the basis of the conviction order and judgment pronounced pronounced by this Court in Sessions Sessions Case No.914/2 No.914/2013. 013. Exh.251 Exh.251 is the photocopy photocopy of warrant of commitment commitment in Sessions Case No.914/2 No.914/2013. 013. The photocopy of conviction slip along with the slip of the Investigating Officer and operative order passed by this Court in Sessions Case No.914/2013 is at Exh.25 Exh.252. 2. Three Three sheets sheets of the thumb impress impression ionss of these accused accused are marked marked as Exhs.253 to 255. Thus, Thus, he has again proved the identity identity of these
149
accused as the same accused, who were already convicted in Sessions Case No.914/2013.
246.
Section 298 298 of Cr Cr.P.C. pro provides th the mo mode to pr prove th the pr previous
conviction or acquittal. It reads as follows follows : 298 Previous Previous conviction conviction or acquitta acquittall how how provedproved- In any inquiry, inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force, (a) by an extract extract certifi certified ed under the hand of the officer officer having having the cust custod ody y of the the reco record rdss of the Co Cour urtt in whic which h such such conv convic ictio tion n or acquittal was held, to be a copy of the sentence or order, or (b) in case of a conviction, either by by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted. 247.
Herein the case, the prosecution has proved the “previous
conviction” conviction” by adopting the mode laid down in sub-clause (a) of Section 298 of Cr.P.C. i.e. by production of an extract certified by the Assistant Registrar of City Civil & Sessions Court, who is having the custody of the records of the Court, in which such conviction was held and also by the production of the copy of the sentence sentence and order passed passed by this Court. The prosecution prosecution has further proved the identity of the accused persons to be the same by
150
production of the three sheets of the thumb impressions of these accused and an d also also by the the photo photoco copy py of the the convi convict ctio ion n slip slip..
The The ident identit ity y of the
accu accuse sed, d, as stat stated ed abov above, e, is also also pro proved thro throug ugh h the the evide evidenc nce e of P.I. .I. Nikumbe who was the Investigating Officer in Sessions Case No.914/2013. No.914/2013.
248.
Thus, bo both the co condition onss which ar are laid do down by by Section 29 298 of
Cr.P.C. for proof of “previous conviction” are satisfied by the prosecution by adducing relevant material evidence on record to that effect.
249.
As regards th the su submi bmission made by by learned rned Counsel Sh Shri Keshav
Chavan that the certified copy of the judgment pronounced by this Court in Sessions Case No.914/2013 is not properly proved, as neither P.I.Nikumbe is author of the said judgment nor Assistant Registrar Shri Redij is the author of the said judgment. judgment. In considered considered opinion opinion of this Court, it is absolutely absolutely not necessary for the prosecution to prove it because when a specific mode is provided in Section 298 of Cr.P Cr.P.C. .C. itself for proof of previous conviction, which is by production pro duction of an extract certified under the hand of the officer having the custody of the record of the case in which such conviction was held by producing the copy of the sentence and order and by proving the identity of the accused persons then, even without looking into the certified copy of the judgment, these documents are sufficient to prove the “previous
151
conviction” conviction” of the accused in Sessions Case No.914/2013. No.914/2013.
250.
Now co coming to th the var various co contentions rai raised by by th the def defence
Counsels. The first and foremost foremost contention raised by learned Counsel Counsel Shri Moin Khan is that in the charge framed by this Court, the date of earlier offence offence is not mentioned. However However,, this contention contention is not at all correct. The charge framed framed at Exh.234 is very crystal clear and elaborate. elaborate. It clearly clearly lays down that these three accused were convicted in respect of the rape committed by them in between 7.30 p.m. to 8.30 p.m. on 31/07/2013 at Shakti Mill premises on prosecutrix in Sessions Case No.914/2013, namely Telephone Operator. Therefore, the date and the place of the earlier offence is clearly mentioned in the charge. charge. Secondly, Secondly, provisions of Section Section 211(7) of Cr.P.C. requires the t he Court to mention me ntion the th e “date” “date” and “place” “place” of the “previous conviction” and not the date and place of the previous offence. Even then, by way of abundant precaution, this Court has also mentioned the date and place of previous offence, along with the date and place of the “previous conviction” conviction” in Sessions Case No. No.914/2013. 914/2013. Therefore, there is no question of the charge being not properly framed by this Court.
251.
Next contention raised by the defence Counsels is tha that the
char charge ge un unde derr Sect Sectio ion n 37 376( 6(E) E) of IPC IPC shou should ld have have been been frame ramed d sinc since e
152
beginning. beginning. This contention contention is fallacious fallacious as legally legally, it is not tenable at all. Such charge can be framed only when the “previous conviction” is recorded and only when in this case, I have arrived at the conclusion of conviction of the accused. The provisions provisions of Section Section 211(7) of Cr.P Cr.P.C. make it very clear that if such charge is not framed earlier, the Court may add it any time befor before e sentenc sentence e is passed. passed. The provisi provisions ons of Section Section 236, especiall especially y, its Proviso also make it clear that, that, if any charge of “previous conviction” is framed by the Court, then that charge shall not be read out by the Judge nor shal shalll the the accu accuse sed d be aske asked d to plea plead d ther theret eto o no norr shal shalll the the “prev previo ious us conviction” be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under Section 235 of Cr.P Cr.P.C. There There are parallel parallel provisio provisions ns in respect respect of the warrant cases under the Proviso of Section 248 of Cr.P.C.
252.
The ob object of of th the Pr Proviso in in bo both th the Se Sections is is to to en ensure th that
no prejudice be caused to the accused, if the Court frames such charge of “prev previo ious us conv convic icti tion on”e ”ear arli lier er,, even even befo before re arri arrivi ving ng at conc conclu lusi sion on of convic conviction tion in in this case. case.
This This fact fact is abundant abundantly ly made made clear clear in both the
Provisos Provisos and also in Section 211(7) Cr.P Cr.P.C. Therefor Therefore e only when the Court comes to the conclusion that accused are liable to be convicted, before the sentence is pronounced, this Court can frame the charge as regards the
153
“previous conviction convicti on””. Hence, this charge cannot be framed earlier.
253.
It al also ne needs to to be be st stated th that Se Section 37 376(E) of of IP IPC wh which is is
incorpo incorporate rated d recent recently ly by Crimin Criminal al Law Amendm Amendment ent Act, Act, 201 2013 3 does not create create any separate separate independent offence. offence. It only provides provides for enhanced enhanced punis punishm hmen entt to thos those e offe offend nder erss who who have have been been prev previo ious usly ly conv convic icte ted. d. Therefore, it is not as such a separate offence . The provisions of Section Section 216 of Cr.P Cr.P.C. relati relating ng to frami framing ng of “addit “additiona ionall charge charge”” will will be and can be invoked only when when there is an independent separate separate offence offence as such. The entire tenor of Section 376(E) of IPC makes it clear that it is brought on statute book for giving “enhanced punishment” to the accused who has been “previ “previous ously ly convic convicted ted””. It is more more like like Section Section 75 of I.P.C. which which prov provid ides es for for “enhan enhance ced d puni punish shme ment nt”” in resp respec ectt of certa certain in offe offenc nces es if “previous conviction” is proved.
254.
Therefore, by by add adding cha charge und under Sec Section 37 376 6(E) of IP IPC, the the
Court is not creating or not dealing with any new offence as such but to ensure that principles of natural justice are followed, both the parties are given opportunity to lead evidence after the charge of previous conviction is framed. With that object only, it is laid down that a separate charge can be framed and that's why, this Court has also framed the separate charge and
154
nothing more than that.
255.
Once it it is is he held th this Se Section 37 376(E) of of IP IPC do does no not cr create an any
separate offence as such but, it only provides for enhanced punishment, if previous conviction is proved, then the provisions of Section 236 of Cr.P.C. also make it clear that it does not give any statutory right to the accused to recall, re-summon or examine any witness but it only gives discretion to the Court to do so.
256.
Section 236 of Cr.P.C.,reads as follows In a case where previous conviction is charged under the provisions of sub-section(7) of Section 211, and the accused does not admit that he has been been prev previo ious usly ly conv convic icte ted d as alle allege ged d in the the charge, the Judge may , after he has convicted convicted the said accused under section 229 or section 235, take evidence in respect of the alleged previous conviction, and shall record a finding thereon.
257.
Only wh when ad additional ch charge fo for a di distinct an and se separate
offence offence is framed framed under Section 216(4) of Cr.P Cr.P.C., statutory right is given under Section 217 of Cr.P Cr.P.C. to the prosecution and accused accused to recall, recall, resummon summon or examin examine e any witness witness in relati relation on to additi additional onal charge charge.. This This distinction has to be borne in between framing of additional charge in
155
respect of “previous conviction” as contemplated under Section 211(7) of Cr.P Cr.P.C. and in respec respectt
of distin distinct ct offenc offence e under under Sectio Section n 216 of Cr.P Cr.P.C.
Therefore, it will also not be correct to say that statutory right is conferred upon upon the the accu accuse sed d to reca recall ll or re-s re-sum ummo mon n witn witnes esse sess on fram framin ing g of additional additional charge charge of previous conviction. conviction. Only a discretion discretion is vested in the Court to see whether whether any additional additional evidence evidence is required. required. The use of the word “may” in Section Section 236 of Cr.P.C. makes it abundantly abundantly clear that the Court has discretion. Accordingly, Accordingly, this Court has given opportunity to both the parties also to lead the additional evidence and as stated above, the prosecution has led such evidence to prove the additional charge under Section 376(E) of IPC.
258.
Now re reverting ag again to to th the co contention of of th the le learne rned Co Counsels
for the accused that for the offence under Section 376(E) of IPC., there shou should ld have have been been sepa separa rate te FIR, FIR, sepa separa rate te char charge ge-s -she heet et etc. etc.,, the the said said content contention ion is, also, also, absolu absolutel tely y not tenabl tenable e becaus because e the very wordin wording g of Section 376(E) of IPC provides that: “Whoe “Whoeve verr has has been been “prev previo ious usly ly convi convict cted ed”” of an offen offence ce punishable under Section 376 or Section 376A or Section 376D and is subsequently convicted of an offence punishable under any of the said Sections, shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life or with death.”
156
Hence, Hence, it does not create create any independent independent offence. offence. Section Section 376(E) of IPC does not use the word “offence” so it cannot possibly be said that it requires a “crimi “criminal nal act” after the first conviction. conviction. There There is utterly utterly no ambiguity ambiguity in that, that, there therefor fore, e, lodgin lodging g of separa separate te F.I.R., .I.R., separa separate te chargecharge-she sheet et is not required required at all. This argument argument is totally novel novel to the entire tenor of the Law and Section.
259.
Further contention that to invoke Section 376(E) of IPC.,
subsequent subsequent offence offence must must have taken place place after after the first first convicti conviction, on, also cannot be accepted accepted on apparent apparent reading of the said said Section. If that was the intention of the Legislature, the Legislature would not have used the word “previous conviction” in Section 376(E) of IPC but Legislature would have stated that, “after undergoing the sentence in previous offence, if accused commi ommits ts such uch off offenc ence agai again n then then on only ly he can be liab liable le for highe igherr punishment.” punishment.” Section Section 376(E) of IPC however however is not stating so. Because Because the Legislature in its wisdom was very well aware that the punishment which is provided under Section 376(D) of IPC is for a term which shall not be less than twenty years, but it may extend to life which shall mean imprisonment for the remainder remainder of that person's natural natural life. Therefore Therefore it is not expected expected that that afte afterr the the accu accuse sed d un unde derg rgoes oes the the enti entire re impri impriso sonm nment ent of life life or of minimum twenty years, he will come out and will commit the same offence
157
and then only Section Section 376(E) 376(E) of IPC can be made applicable applicable to him. If that interpretation is to be accepted, then this provision of Section 376(E) of IPC will be rendered meaningless or redundant. When the Court is interpreting any statutory provision, the Court has to give meaningful interpretation and not such interpretation which will render that provision provision itself redundant.
260.
Hence, if if the the construc ructive and pu purpo rposive in interpr rpreta etation is to to be be
given to the provisions provisions of Section Section 376(E) of IPC, then it follows that as soon as “previ previous ous convict conviction ion”” is record recorded, ed, at the time time of pronou pronounce ncemen mentt of sentence in subsequent conviction, conviction, this provision is to be invoked. Whether the subsequent offence is committed after the previous offence or after accused had undergone the sentence in previous offence is immaterial. immaterial. The words used in this Section are “previously “previously convicted” and “subsequently “subsequently convic convicted ted””. Theref Therefore ore they do not refer refer at all to the date date of the offenc offence, e, either either of the first first offenc offence e or of the second second offenc offence. e. There Therefor fore, e, from that angl an gle, e, it is also also total totally ly imma immater teria iall whet whethe herr the conv convic icti tion on reco record rded ed in Sessions Case No.914/2013 was in respect of the previous offence or in respect of the subsequent incident.
261 .
What is is re relevant is is wh when th this Co Court is is co considering th the as aspect of of
sentence sentence in this case i.e. Sessions Sessions Case No.846/201 No.846/2013, 3, there should should be some
158
judicial finding on “previous “previous conviction” conviction” of the accused for this particular offenc offence. e. That That condition condition which which is laid down down in Sectio Section n 376 376(E) (E) of IPC is definitely being satisfied in the present case as the conviction was recorded by this Court in Sessions Case No.914/2013 on 20/03/2014 and on that day itself, the test of “previously “previously convicted” is satisfied. satisfied. The stage of considering the sentence sentence in this case arose on 21/03/2014. 21/03/2014. On that day, day, this Court was to consider what should be the quantum of sentence and on 21/03/2014, there there was previo previous us convic convictio tion n record recorded ed by this this Court Court on 20/03/ 20/03/201 2014 4 in Sessions Case No.914/2013. No.914/2013. Therefore, the necessary condition laid down in Section 376(E) of IPC is definitely satisfied.
262.
Further her arg argu ument ad advance nced by by defe efence nce Cou Coun nsels that hat this his Court urt
has simult simultane aneousl ously y pronounc pronounced ed the convic conviction tionss in both the cases cases and theref therefore ore,, convic conviction tion in Sessio Sessions ns Case Case No No.91 .914/2 4/2013 013 cannot cannot be called called as “previous conviction” is without any substance because it is a matter of record that on 20/03/2014, this Court has first pronounced the conviction in Sessions Sessions Case No.914/201 No.914/2013 3 and thereafter thereafter,, this Court has first pronounced the convictio conviction n in Sessio Sessions ns Case Case No No.84 .846/2 6/2013 013..
In crosscross-exa examin minati ation on of
P.I.Nikumbe, a defence itself has brought on record that “first this Court has pronounced the conviction in Sessions Case No.914/2013 and 30 to 35 minu minutes tes ther therea eaft fter er,, the the convi convict ctio ion n in Sess Session ionss Case Case No.84 o.846/ 6/20 2013 13 was was
159
pronounced.”
263.
Now Section 376(E) of IPC does not say that “previous
conviction” should be pronounced some days or some months or some years ahead of the “subsequent “subsequent conviction.” conspi conspicuo cuousl usly y silent silent on this this aspect aspect..
Section 376(E) of IPC is
It does does not lay lay down down any time time gap gap
betwe between en “prev previou iouss” an and d “subs subseq equen uent” t” conv convic icti tion. on.
Hence ence,, previ previous ous
conviction may be one day before, may be few minutes before or 10 years before. before. The fact fact that it is “previ “previous ous conviction conviction”” is sufficient sufficient.. If previous previous conviction is just few minutes before also, it attracts Section 376(E) of IPC.
264 .
If it it wa was th the in intention o off th the Le Legislature th that th the “previous
conviction” should be some days or some years or some decades before, Legislature would have said so. so. But, Legislature has not done so. Legislature has very wisely used the word “previous conviction” without any prefix or suffix. Therefore in this case as on the date 21/03/2014, 21/03/2014, when this Court was cons consid ideri ering ng the the quan quantum tum of sent sentenc ence e in this this case case,, ther there e was was alre alread ady y “prev previo ious us conv convic icti tion on””
recor ecorde ded d
in Sess Sessio ions ns Case ase
No.914 .914/2 /201 013 3 on
20/03/2014.
265.
In thi this re respec pect, as ri right ghtly poi pointed out out by by Sp Spl.P.P., the the pro provis visions
160
of Section 354(1)(c) of Cr.P Cr.P.C. .C. are very relevant. Section 354 deals with the language language and contents of judgment. judgment. It provides provides that except except as otherwise expressly provided by this Code, every judgment referred to in Section 353, (a) shall be written in the language of the Court, (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision and (c) shall specify the offence (if any) of which, and the section of Indian Penal Code (45 of 1860) or other law under which, the accused is convicted convicted and the punishment punishment to which he is sentenced. Therefore Therefore,, subclause (c) of Section 354 makes it clear that judgment is not complete unless a sentence is pronounced. pronounced. Hence, Hence, the two integral integral parts of the judgment judgment are, one, the finding on conviction and second is the sentence aspect.
266.
Herein th the ca case, on on 20 20/03/2014, th the Co Court ha has pr pronounced th the
judgment in this case only as regards the “conviction “conviction”” which is sufficient so far as attracti attracting ng the charge charge under Sectio Section n 376 376(E) (E) of IPC. Hence Hence entire entire judgment was not complete and not pronounced. Therefore, the argument of defence counsel that this Court cannot frame additional charge after pronouncement of judgment also hold no merits. Moreover, the charge under Section Section 376(E) 376(E) of IPC is framed by this Court Court on 24/03/2014. 24/03/2014. At that time, the judgment in this case was not complete. Whereas the judgment in Sess Sessio ions ns Case Case No.914 .914/2 /201 013 3 was was comp comple lete te on 21 21/0 /03/ 3/20 2014 14 itse itself lf an and, d,
161
therefore, it cannot be accepted, even for the sake of argument, that this Court has pronounced the judgments in both the cases simultaneously. Such line line of argument argument is against against the facts of the case, against against the record record of the court and against the law also because the Court has only pronounced the conviction on 20/03/2014 in both the cases that too, first conviction was pron pronou ounc nced ed on 20 20/0 /03/ 3/20 2014 14 in Sess Sessio ions ns Case Case No.914 .914/2 /201 013 3 an and d then then conviction was pronounced in Sessions Case No.846/2013 subsequently. The judgment in Sessions Case No.914/2013 was completed in all respects on 21/03/2014.
Whereas this Court has not yet comple pleted the
pronouncement of judgment in this case because this Court has yet to decide decide the the quan quantum tum of sent senten ence ce.. argument
that
this
Court has
Ther Theref efor ore e this this is tota totall lly y un unten tenab able le pronou oun nced
both
the
judgments
simultaneously, simultaneously, as this argument does not stand the test of legal scrutiny. scrutiny.
267.
Further su submission ad advanced by by de defence Co Counsel is is ab about th the
meaning of the term “repeat “repeat offender”. offender”. It is submitted by learned Counsel Shri Keshav Chavan, on the basis of definition of the term “repeat offender” in various dictionaries, that it means “Recidivism “Recidivism””. According to him, only when the undesirable conduct is repeated, after the person has been punis punished hed for for such such un undes desir irab able le behav behaviou iourr, he can can be call called ed as “repea repeatt offender”. offender”. In my considered opinion, in the first place, this definition of the
162
word “repeat “repeat offender”, offender”, is not implied by the Legislature while drafting Section 376(E) of IPC.
268.
If the Legislature wanted to incorporate this definition of
“repeat offender” by implying that only when a person has undergone the consequences of undesirable act and thereafter, if a person commits such undesirable act again, then only he can be called as “repeat offender”, the Legislature would have used the words “who has been previously convicted and undergone undergone the sentence sentence” in Section Section 376(E) of IPC. But, Legislature Legislature,, in its wisdom has not done so and only used the word “previously convicted”. Therefore, the general definition of the term “repeat offender” used in the dict diction ionary ary cann cannot ot be made made appli applica cabl ble e when when the the Co Cour urtt is deali dealing ng with with statutory statutory provisions. provisions. Needless Needless to state that while drafting drafting legislation, legislation, each and every word is used with utmost care care by Legislature. Legislature. Atleast Court has to proceed on that basis and to ensure that the object of the said provision is achi achiev eved ed an and d that that pro provisi vision on itse itself lf shou should ld no nott becom become e redun redundan dantt an and d meaningless.
269.
Moreover, Section 376 376(E) of IP IPC now nowhere say says tha that acc accused
should be “repeatedly” “repeatedly” doing the offence. If it was the intention, Legislature would have said so but that is again not done. Hence, the term “repeat “repeat
163
offender” also does not imply in the context of present Section that accused should should have been convict convicted ed more than once. once. It it was so, in the Secti Section on itself instead of using the term “previously convicted”, the legislature would have used the word “repeat repeat offender” offender” or would have said 'convicted 'convicted more than once, once, twice twice,, thrice thrice and so on'. Legislat Legislature ure has not done so so.. Henc Hence, e, even if there is one previous conviction, it is sufficient for attracting this section.
270.
It is pertinent to state at this stage that the Criminal
Amendment Law 2013 is brought in the Statute Book after lot of deliberation and discus discussio sion. n. It is not not brought brought all all of sudden sudden as such. such. Despit Despite e that, if Sect Sectio ion n 37 376( 6(E) E) of IPC IPC itse itself lf no nott lay lay down down that that accu accuse sed d shou should ld have have committed the offence prior to committing this offence or he should have comm commit itte ted d the the subs subseq eque uent nt offe offenc nce e afte afterr prev previo ious usly ly un unde derg rgoi oing ng the the punis punishm hmen entt for for the the same same offen offence ce,, or he shou should ld have have been been convi convict cted ed repeatedly, then it is not permissible to interpret the provisions of Section 376(E) of IPC in that context. The Legislature has simplicitor simplicitor laid down down that if he is “previously convicted” then on subsequent conviction, he will be dealt with enhanced enhanced punishment. punishment. So this Court Court has to read this Section Section in the said words only and in this case, the prosecution has succeeded in proving that these three accused were “previously convicted” by this Court
164
in Sessions Case No.914/2013 on 20/03/2014 and quantum of sentence was fixed on 21/03/2014 21/03/2014.. Hence Hence on the date when this Court was considering considering the quantum of sentence as regards offences in this Sessions Case No. 846/2013, there was “previous conviction” conviction” in Sessions Case No.914/2013 and subs subseq eque uent nt conv convic icti tion on recor ecorde ded d in this this case case.. Ther herefor efore e, nece necess ssar ary y ingredients of Section 376(E) of IPC are satisfied. Hence, it has to be held that prosecution has succeeded in proving its case on this additional charge.
271.
As re regards the the two two aut auth horit rities re relied upo upon by by Spl Spl..P.P. fi first rstly, of
ourr own High ou High Court Court in Gulab Gaibu Shaikh V The State of Maharashtra pert pertai ains ns to the the cons consec ecut utiv ive e sent senten ence cess in resp respec ectt of the the judg judgme ment ntss pronounced on the same day. day. The other case Deal V. V. United States, October Term 1992 is decided by United United States States Court of Appeals wherein wherein also the provisions relating to 'enhanced punishment' in respect of the accused who are are previo previousl usly y convic convicted ted were were for delibe deliberat ration ion and decisi decision on before before the United States Court of Appeals. It was held that the particular provision cann cannot ot be read read to impo impose se an enhan enhance ced d sent sentenc ence e on only ly for for an offe offenc nce e committed after a previous sentence has become final. It was further held 'convi 'convicti ction' on' unambi unambigui guity ty refers refers to the findin finding g of guilt guilt that that necess necessaril arily y precedes the entry of a final judgment of conviction. conviction. If the statute does not use use the the term term 'off 'offenc ence' e',, it does does no nott requ requir ire e crim crimin inal al act act after after the the firs firstt
165
conviction; it merely requires a 'conviction' after the first conviction. It was further held that “it cannot be called as glaringly unjust simply because accused managed to evade detection, prosecution and conviction for the first five offences offences and was ultimately ultimately tried for all the six offences offences in a single proceeding. proceeding. He will be still still liable for enhanced enhanced punishment on the ground of being previously previously convicted though in a single single proceeding. This authority thou though gh cann cannot ot be bind bindin ing, g, it is refer eferre red d to supp suppor ortt an and d butt buttre ress ss the the conclusion arrived at by this Court and also to show that the statutory prov provis ision ionss are are to be inte interpr rpret eted ed in such such a way way that that they they can can beco become me meaningful and not redundant.
272.
Even dev devoid of th these two two aut authorities als also, in in my co considered
opinion, this Court has already dealt with the provision of Section 376(E) of IPC IPC, its its impo import rt,, its its purp purpor ort, t, the the obje objec ct of the the Legi Legisl slat atur ure e, ho how w the the proceedings in this case are conducted and how this Section has became hence applicable.
273. 27 3.
As righ rightl tly y sub subm mitted tted by Lear Learne ned d Spl Spl..P.P. tha thatt thi thiss pro provi vission ion is is not not
only meant for “repeat offenders” but it is also meant to send a strong message message to the society, society, especially especially to the like minded persons to deter them from committing such offences and, therefore, it is not relevant, how may
166
times, the accused has committed or repeated the offence. What is relevant is that if such offences are repeated even once, then also Section 376(E) of IPC can be invoked, as Legislature wants to ensure that such tendencies are curbed. curbed. According According to me from this aspect aspect also, the provision provisionss of Section 376(E) 376(E) of IPC are required required to be interpreted interpreted bearing in mind the object and reasons for such legislation.
274.
The net result therefore is that, as regards the point for
determination which was framed by this Court in the judgment itself, in view view of fram framin ing g of addi additi tion onal al char charge ge,, this this Co Court urt give givess the the findi finding ng that that prosecution has succeeded in proving the charge under Section 376(E) of IPC against accused No.1 Vijay, Vijay, accused No No.3 .3 Mohd. Kasim and accused No No.. 4 Mohd. Salim.
275.
Now th the qu question co comes ab about th the qu quantum of of se sentence, fo for
which I have the hear the accused their Learned Counsels and Spl.P.P. At this stage, learned Spl.P.P. submits that in view of the law laid down by the Apex Court, quoted earlier in the judgment, this Court should give one day time time to both both the the part partie iess to adva advanc nce e subm submis issi sion onss on the the quan quantu tum m of sentence. Hence, further judgment is reserved till tomorrow for hearing
167
on the quantum of sentence.
(Dr.Mrs.Shalini S. Phansalkar-Joshi) Principal Judge, Bombay City Civil Court & Sessions Judge, Gr.Bombay. Gr.Bombay.
3/4/2014
Resumed on 04/04/2014 :Submissions on Sentence :276.
On th the qu question o off se sentence, th this Co Court has he heard th the ac accused
Nos.1 Nos.1 to 4 in person. It is submitted submitted by accused No.1-Vi No.1-Vijay jay that his family consists consists of his parents parents and one handicapped handicapped brother. brother. After this incident, incident, they have been removed from the rented house at Virar and are staying on the pavement pavement outside the jail. jail. He has also also examined examined on oath, his mother Pramila Jadhav who has stated that she is doing the work of maidservant. Thou Though gh her her husb husban and d is doing doing servi service ce in Mun unic icip ipal al Co Corpo rpora rati tion, on, he is addicted to alcohol. As both of them used to be out of house, they could not give sufficient sufficient attention attention to their children. children. Due to poverty poverty,, they could not educate theirs sons and hence, both accused No.1 and his mother have reque equessted ted the the Cou ourt rt to take take a lenie enient nt view view an and d impo imposse minim inimum um punishment, having regard to his h is young age also.
277.
Accuse used No No.2-Siraj ha has al also ad advanced si similar su submi bmissions whe when n
I heard him on the question question of sentence. He is having his mother and young
168
sister dependent on him and he is the only earning member of the family. He has therefore requested the Court to take a sympathetic view while awarding punishment.
278.
Accused No.3-Mohd. Kas Kasim has has sub submitted that his his mot mother,
brother and younger sister are the only members in his family and without him around, there there will be none to look after them. Hence, Hence, having having regard to his young age also, he has requested the Court to give him one more opportunity to improve and reform himself.
279.
Accused No No.4-Mohd.Salim ha has st state ated th that his ol old mo mothe ther, wi wife,
two children children are dependent dependent on him. He has also also examined his widow widowed ed mother on oath to prove that even his late brother's two children are looked after by him as she has become old and unable to take their care.
280.
In su sum an and su substance, th therefore, th the su submission of of al all th the fo four
accused is that having regard to their young age, very poor strata of the soci so ciet ety y from from whic which h they they hail hail,, thei theirr so soci cioo-ec econ onom omic ic cond condit itio ion, n, the the dependency of their family members on them, they being the only earning members and their families should not suffer because of their misdeeds, this Court should take a lenient view and impose minimum punishment.
169
These factors are also advanced as mitigating circumstances to impress that their case does not fall into the category of 'rarest of rare' to impose death penalty.
281.
Learned Counsels for accused Nos.1, 3 and 4 have today
decli decline ned d to adva advanc nce e argu argume ment ntss an and d furth further er file filed d even even appl applic icat ation ion for for permission to withdraw from the case, after the Spl.P.P. has commenced and completed half of his arguments.
Conduct of Defence Counsels :Counsels :282.
At this stage, this Court cannot restrain itself from making
certain observations which are really unpleasant. It is really unfortunate to note no te the the cond conduc uctt of defe defenc nce e coun counse sell for for accu accuse sed d No.1 Shri Shri Praka rakash sh Salsingika Salsingikarr and accused No.4 No.4 Shri Moin Khan. Khan. They have not left a stone unturned in delaying the trial, from from filing Transfer Application against this Court Co urt,, requ reques esti ting ng the Co Cour urt, t, to recu recuse se itself itself and at withdrawing their appearance.
the the last last mome moment nt
It is despite the fact that as per newly
introduced introduced provisions provisions of Criminal Criminal Law (Amendment) (Amendment) Act,2013 the trial of these offences has to be completed as far as possible, within two months from the date of filing the charge-sheet and on the very first day of their appearance, this Court has made them aware of this legislative direction
170
and of the intention of this Court Court to comply with that direction. direction. But since since begi beginn nnin ing g attit attitud ude e adopt adopted ed was, was, no nonn-co coope opera rati tive ve,, keepi keeping ng the the Co Cour urt, t, Spl.P.P. .P. and most importantly witnesses waiting till they arrive arr ive in the Court at their own time. time. It may may be 11.30 or 12 O' clock also. also. The record of the case is self speaking to reveal how witnesses were harassed by asking irrelevant questi questions ons and when when refuse refused, d, movin moving g Transfe ransferr Applic Applicatio ation, n, ho how w defenc defence e Counsels have even refused to cross-examine the witnesses when they were in witness box and repeatedly hearing has to be adjourned despite the mandate of the Hon'ble Supreme Court that when witnesses are in the box the trial has to be proceeded on day to day basis until their examination is complete.
283.
Ultimately, Ho Hon'ble Hi High Co Court in Crim riminal Ap Application No.697
of 20 2013 13 dtd. dtd.03 03/0 /01/ 1/20 2014 14 was was plea please sed d to obse observ rve e that that,, “desp despit ite e ever every y opportunity being afforded to defence Counsels, they have repeatedly made applications applications for stay of proceedings proceedings..” As a matter of fact, Hon'ble Hon'ble High High Court was constrained to observe that, “the application filed in High Court seem to be to somehow completely derail the trial that has been specifically fast-t fast-trac racked ked and requir requires es to be decide decided d in the shortes shortestt possib possible le time. time.”” Hon'ble High Court was also constrained to observe that, “once we consider the manner in which the accused and their Advocates have been repeatedly
171
trying to delay or stymie the progress of trial on one ground or the other, the filing of the applications as letters seems, at at the very least, questionable.” questionable.”
284.
In th the en end, Ho Hon'ble Hi High Co Court, after after taki taking ng no note te of their their
delaying tactics in harsh words, issued clear directions that, “the case has to be conducted on day to day basis and it will be upon the accused and their Advocates
to decide whether they want to continue with the cross-
examination of the witnesses. If they choose not to cross-examine, they can do so at their peril, but this Court is not bound to adjourn the trial.”
285.
Even th there ereafter at at ea each an and eve every ry stage, va vague ap applications we were
being filed without giving details or relevancy or without arguments, just to get them rejected, only with an intention to create ground of remand in appeal. Just Just to cite one instance, instance, taking advantage advantage of the fact fact that charge u/s.376(E) was framed, Application (Exh.261) was filed by learned Counsel for accused No.1 for recall of as many as 16 witnesses, without giving any relevancy, rhyme or reason, being fully aware that only those witnesses can be recalled or re-summoned who are relevant to additional charge. Even though query was made by the Court to explain as to how witnesses like photogr photograph apher er,, Panch Panch,, prosec prosecutri utrix's x's mother mother,, her superio superiorr office officerr, can be relevant as regards charge of previous conviction, it was not answered at all.
172
Though Court allowed the application partly, he refused to cross-examine the witness.
286.
The entire endeavour on their part was to make such
appl applic icat atio ions ns,, whic which h they they were were also also sure sure,, wo woul uld d no nott be gran granted ted or no nott allowed to be granted, get them rejected so that matter can be remanded on the ground that they did not get fair opportunity and thereby delay the trial.
287.
In the the Ses Sessions Ca Case of pr previous con conviction of th these acc accused
also, though this Court was posting the matter for judgment on 18.3.2014 or 19.3.2014., 19.3.2014., they represented represented to the Court that they want to go out of station for Holi and hence, requested to post the matter after 19.3.2014. The Court acceded to their request and kept it on 20.3.2014 but learned Counsel Shri Salsingikar came to the Court on 19.3.2014 and gave application for leading evidence of accused No.1, knowing fully well that by the said time, dictation of the judgment was bound to be completed, as only the pronouncement of judgment, on their request was postponed to 20.3.2014. Thus, they have not remained fair to this Court also.
288.
Today day als also, le learn arned Cou Coun nsels fo for ac accused No Nos.1, 2 and 4 came to to
Court at 11.40 a.m. though since 11.00 a.m., the Court and Spl.P Spl.P.P. were
173
waiting for them. Then, they gave application for adjournment to engage Senior Senior Co Couns unsel el for advancing advancing argument arguments. s. The prosecut prosecution ion has strongl strongly y opposed this application on the ground of it being a last ditch attempt to delay the hearing as just before this application, the defence Counsel had also given the application for adjournment on the ground that accused No.1 wants to examine his mother as a witness on the quantum of sentence and as a mitigating mitigating circumstance circumstance.. When Spl.P.P. brought brought to the notice of this Court and this Court also verified, accused No.1's mother was very much present in the Court and was ready to give evidence today itself, defence Counsel initially denied to examine her today but subsequently seeing no other option, became became ready. ready. Then Counsel Counsel for accused No.4 No.4 also gave an application application to examine examine mother mother of accus accused ed No.4. No.4. It was was also allow allowed. ed. She was examined. Then this application for adjournment is filed on the same ground seeking adjournment on which two days before, application was filed and matter was kept today. After rejection of said application, Spl.P.P Spl.P.P.. has started advancing advancing his submission submission and mostly completed. completed. Thereafter Thereafter defence Counsel filed application for withdrawal from appearance.
289.
Normally th this Co Court or or an any Co Court fo for th that ma matter wo would ha have
adjourned the hearing on question of sentence but if one has regard to the conduct of defence Counsels to somehow or other create every obstacle in
174
expeditious hearing of the case which is mandated by the law of the land and Hon'ble High Court, then this request does not appear to be genuine or bonafide. By taking name of the Senior Counsel, they just want to buy the time and create create some more obstacles obstacles in delivering delivering of justice by stymieing stymieing the trial and making making some more more applications applications in between these these 3-4 days or again on the adjourned date for arguments and also again get them rejected and create grounds of appeal, raising grievance that they did not get fair opportu opportunit nity y or fair fair trial. trial.
This This applic applicati ation on for seekin seeking g adjourn adjournmen mentt to
engage Senior Counsel is again a one more ploy in that direction, as they know fully well that their earlier application for adjournment on this very ground was rejected by this Court two days back and even then today as Senior Counsel himself is not present, they will not get adjournment, so that they they can can prom prompt ptly ly with withdr draw aw thei theirr appea appeara ranc nce e an and d in appea appeall they they will will automatically get the right of remand.
290.
If th the ac accused or or th their Co Counsel re really wa wanted to to en engage Se Senior
Counsel, during these two days they could have engaged him or at least he himself personally and if not possible, through his junior filed appearance and sought time to go through the record record and advance submissio submissions. ns. This Court would have then adjourned the matter as the request would have appear appeared ed bonafi bonafide. de. But that that is is not the the case. case. In the crimin criminal al trial, trial, the the
175
Advocate cannot withdraw his appearance. As a matter of fact, it is his duty to proceed with with the case and assist assist the Court. But they are are not bothered. bothered. This court is really at pains to observe this conduct of defence Counsels, which, as submitted by Spl.P Spl.P.P .P,. does amount to professional misconduct, for which Bar Council needs to do something.
291.
Let it it be be pu put on on re record th that it it is is fo for th the fi first ti time, th this co court is is
constrained to make observations against the members of the Bar who are officers of the Court and who owe a duty to Court and also to the accused but it cannot be said that by withdrawing their appearance at the last moment moment they are discharging discharging that duty. duty. These observations observations are made not only to show the conduct of the defence Counsels but also to put on record how it becomes difficult for trial court to comply with the mandate of law as laid laid down down in vari variou ouss Statu tatute tess like like Pro Proviso viso of Sect Sectio ion n 30 309 9 of Cr.P Cr.P.C. .C. introduced recently by Criminal Law (Amendment) Act, 2013 laying sown that the inquiry or trial shall as far as possible be completed within a period of two months from the date of filing of the charge-sheet and at the same time to comply with the observations of Hon'ble High Court directing the case to be proceeded on day d ay to day basis.
292.
However, th though le learne rned Co Counsels fo for ac accused No Nos.1, 3 an and 4
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have have state tated d that that they they wil will no nott argu argue e on the the po poin intt of sent senten enc ce, the submissions made by accused in person and evidence led on record by accused Nos. 1 and 4 of their mother is sufficient on facts to bring on record mitigating circumstances and on legal aspects, this Court will be taking every care to consider entire law on the subject for arriving to the decision of appropriate sentence.
Submissio Submi ssions ns of Spl.P.P Spl.P.P.. 293.
As regards legal aspects, Spl.P.P. has also advanced elaborate
submissions while pressing into consideration his demand for maximum penalty penalty of death. At the outset outset itself, he has clarified clarified that he is not seeking death penalty, out of any vengeance but is doing so only because the facts and circumstances on record justify no other punishment. He has then taken this Court to the provision provisionss of Section Section 354(3) 354(3) of Cr.P Cr.P.C. which were introduced, by way of amendment, for the first time in 1973, enjoining upon the Court to give “Special “Special reasons” reasons” for awarding death penalty. penalty. Then he has pointed out the landmark decision of the Apex Court in the case of Bachan which h lays lays down down that that life life Singh ingh V Stat Statee of Punj Punjab ab (198 (1980) 0)2 2 S.C. S.C.C. C.68 684 4 whic imprisonment is the rule and death penalty is an exception and also lays down down the criteria criteria as to when when the case can be called as “rar “rarest est of rare. rare.” Further Further he has relied upon another landmark decision decision of Apex Court in the
177
case of Machhi Singh & Ors. V State of Punjab (1983) 3 S.C.C .470 in .470 in which the law laid laid down down by the Constitu Constitutio tional nal Bench in Bachan Singh case was further elaborated by Three Judge Bench and it was emphasized that, “the Court urt shou should ld draw draw a bala balanc nce e she sheet of agg aggrava ravati ting ng an and d miti mitiga gati ting ng circum circumsta stance ncess and, therea thereafte fterr giving giving maximu maximum m weight weightage age to mitiga mitigatin ting g circumstances, arrive at an appropriate decision by finding out on which side the balance tilts.”
294.
Learn arned Sp Spl.P.P. ha has al also ta taken this Co Court throu oug gh th the evi evide denc nce e
adduced on record and has pointed out that there are as many as ten aggrav aggravati ating ng circum circumsta stance ncess in this this case, case, justif justifyin ying g no other other punishm punishment ent except death penalty, whereas according to him, there are no mitigating circ circum umst stan ance cess at all. all.
Acco Accord rdin ing g to Spl.P pl.P.P. thos those e 10 aggr aggrav avat atin ing g
circumstances are as follows : 1)
Accused used bein being g habi habitu tual al gang gang rapis apists ts;;
2)
Crim riminal mentali ality of of th the ac accused used;;
3)
Offe Offenc nce e bei being ng the the res resul ultt of of crim crimin inal al consp conspir irac acy y, exe execu cuted ted with pre-planning;
4)
Menta entall atti attitu tude de of of all all the the accu accuse sed d trea treati ting ng vic victi tim m as pr prey and they as hunters;
5)
Vario arious us per perve vert rt sex sexua uall acts acts of of assa assaul ultt comm commit itte ted d by the them m individually;
178
6)
When the victim was requesting with folded hands, accuse accused d boaste boasted d that that they they have have commit committed ted many many such such rapes rapes but but no no one has touched touched them them;;
7)
Enjoying Enj ying pain pain an and d ago agony ny of the the vic victi tim m and and also also her her helplessness;
8)
The off offenc ence bei being ng diab diabol olic ical ally ly exec execut uted ed,,
9)
Depravity of the mann nne er, exc exception onal allly cruel ruel att attitud tude while committing the offence;
10)
Unscr Unscrupu upulou louss atti attitude tude and total total disreg disregar ard d for for huma human n life life..
295.
According to to hi him, he he ha has ne never co come ac across an any su such si situation
or case where the offence is committed in the most ruthless and merciless manne mannerr.
He has has furt further her submit submitte ted d that that deservi deserving ng person personss are are to be
cond condon oned ed an and d un unde dese serv rvin ing g are are requi equirred to be cond condem emne ned, d, whic which h is fund fundam amen enta tall po poli licy cy of law law.
Furth Further er rely relyin ing g on the the Salm Salmond ond's 's Law Law of
Jurisprudence, he has submitted that no wrong can go unrepented and no offence should go unpunished. He has also highlighted the fact that that rape is an offenc offence e which which is fundam fundament entall ally y and materia materially lly differ different ent from from other other offences. offences. It leaves leaves permanent permanent scar scar on the victim. victim. According According to him, him, injury injury to the body can be healed but injury to the mind and honour of the victim can can neve neverr be heal healed ed..
Hence ence,, Legi Legisl slat atur ure e has has also also inco incorpo rpora rated ted the
minimum punishment of life imprisonment which shall mean to remainder of that person's natural life and maximum punishment of death penalty. penalty.
179
296.
297.
As rega egards mitigating circums umstance nces, he has submi bmitted that, at, 1)
Accused cannot take the advantage of their young age age beca becaus use e vario various us acts acts comm commit itte ted d by the the accu accuse sed d reveal that they were mature enough to be pervert;
2)
They have no remorse or repentance of the acts committed by them;
3)
There ere are are no cha chances nces of of ref reforma rmation fo for the them as the they y have have already already misused misused the opportun opportunity ity of reform reformatio ation n given to them by Juvenile Justice Justice Board;
4)
The The acts acts com commi mitt tted ed by by them them can canno nott be mor moral ally ly jus justi tifi fied ed;;
5)
Ther There e was was no ques questi tion on of dure duress ss or comp compul ulsi sion on for for the them m to commit such acts;
6)
Ther There e is is also also no no evid eviden ence ce of ext extrreme eme men menta tall dis distu turb rban ance ce for them to justify these acts;
7)
Soci Social al econ econom omic ic cond condit itio ions ns of of the the acc accus used ed can can nev never er be be a mitigating mitigating circumsta circumstance nce in view of various decisions decisions of higher Courts. In his his wor words, the the acc accused are are sex sex sta starved wol wolves in hu human.
Hence, Hence, they deserve deserve the maximum penalty penalty of death. death. He has urged urged that a strong message is required to be sent to the society at large and also to the like like mind minded ed perso persons ns by givi giving ng maxi maximu mum m puni punish shme ment nt of death death as an any y leniency, if shown to the accused will be misplaced and will be mockery of the Justice. Justice. Ultimately, Ultimately, he has summed up by stating that this Court Court has to discharge its legal obligation by imposing the death penalty which is the only answer for the offences committed by the accused, in view of the other
180
option of life imprisonment being unquestionably foreclosed.
298.
He has has thus, th thrown li light ght on on al all th the pe persp rspectives ves, th those in in fa favou vour
of prosecution prosecution and also those which the defence could have shown shown in their favour, by advancing comprehensive and exhaustive submissions to enable the Court in arriving arriving at proper decision of the sentence. sentence. As I will be dealing with each of o f these submissions one by one, in the course of reasons on my finding, at this stage, in order to avoid repetition, I am not citing them; in detail.
Sentence :Sentence :299.
Before emb embarking on on the the dis discussion, I am em emphasizing tha that
mere merely ly beca becaus use e the the defe defenc nce e Co Coun unse sels ls for for accu accuse sed d Nos os.1 .1,, 3 an and d 4 have have abandoned their duty and have forsaken the accused, by withdrawing the appearance at this stage and not making any submissions on the aspect of sentence, this Court will not and cannot abandon its duty to consider all the factual and legal aspects while arriving at the proper decision. This Court is also aware that now its duty has become far more onerous and will ensure that it is discharged properly. properly.
300.
The mo most cru cruc cial stage in ev every ery crim riminal proce oceedi eding is is th the st stage
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of sentenci sentencing. ng. It is the most complex complex and difficul difficultt stage stage in the judicia judiciall process. The Indian Legal System, System, as observed by the Apex Court in the case of Shimbhu Shimbhu & Anr. Anr. V State of Haryana 2013 ALL MR (Cri) 3306 (S.C.), confers (S.C.), confers ample discretion on the Judges to levy the appropriate sentence. However However,, this discretion is not unfettered in nature, rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, his character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the Judge to decide on the sentence to be imposed. All the circumstances which are appearing from the record of the case are bound to have a bearing on the question of sentence.
301.
Especially now, when the Court, as in the present case, is
cons consid ider erin ing g the the ques questi tion on of sent senten ence ce as to whet whethe herr it shou should ld be the the mini minimu mum m whic which h is life life impr impris ison onme ment nt or the the maxi maximu mum m whic which h is death death penalty penalty, as demanded demanded by Spl.P.P., then the duty of the Court Court becomes becomes far more onerous, onerous, in view of the the law of land that life life imprisonment imprisonment is the rule and death penalty is an exception, to be awarded only in “rarest of rare cases cases..”
This This Co Court urt has, theref therefor ore, e, to ensu ensure re that that this this case case fall fallss in the the
exceptional category of “rarest “rarest of rare case.” case.” Fortunately this Court is having suff suffic icie ient nt guide guideli lines nes laid laid down down by the the high higher er court courtss on this this aspec aspect, t, in
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addition addition to the statutory provisions. provisions. As rightly submitted by Spl.P Spl.P.P. .P. after 1973, by way of amendment in Section 354(3) of Cr.P.C. for the first time the Legi Legisl slat atur ure e has has enjo enjoin ined ed upon upon the Co Court urtss to give give 'spe 'speci cial al reas reasons ons'' for for awarding death penalty.
302.
The first landma dmark decision on the point which summarizes the
law on the question of capital punishment is that of Bachan Singh V State of Punj Punjab ab (198 (1980) 0) 2 S.C. S.C.C. C. 684 in which the Apex Court has upheld the Constitutional validity of death penalty and for the first time evolved the formula of 'rarest of rare' case and laid down the following propositions in the said case. (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability . (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and de death sentence is an exception. In other words, death sentence must be imposed only on ly when when life life impri imprison sonme ment nt appea appears rs to be an alto altoget gethe herr inad inadeq equa uate te pun unis ishm hmen entt havi having ng rega egard to the the relev elevan antt circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance-sheet of aggravating and mitigating circ ircums umstanc tances es has has to be draw drawn n up an and d in doin doing g so the the mitigating circumstances have to be accorded full weightage
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and a just balance has to be struck between the aggravating and an d the the mitig itigat atin ing g circumst umstan anc ces bef before the the op opti tion on is exercised. 303.
In th the wo words of of th the Ap Apex Co Court, as as la laid do down in in Bachan Singh ,
there are certain mitigating circumstances circumstances in every case. Similarly, Similarly, there are aggravating circumstances also. The Apex Court has listed some some aggravating circumstances as follows by stating that Court may in the following cases impose the penalty of death in its discretion. a) if the murder has been committed after previous planning and involves extreme brutality; or b) 304.
if the the mur murde derr inv invol olve vess exc excep epti tion onal al depr deprav avit ity y So far far as mi mitigating cir circumstances are are con concerned, the the Ape Apex
Court urt has has laid aid down down that that Court urt shal hall take take into nto acc accou ount nt foll ollowing wing circumstances namely, (1) extreme mental mental or emotional disturbance; (2) the age of the accus accused. ed. If the accuse accused d is young or old, old, he shall not be sentenced to death; (3) the probabi probabilit lity y that that accuse accused d would would not commit commit crimina criminall acts of violence as would constitute a continuing threat to society; (4) (4) the the prob probab abil ilit ity y that that the the accu accuse sed d can can be refo reform rmed ed an and d rehabilitated; (5) that in the facts and circumstances circumstances of the case the accused believed that he was morally justified in committing the offence;
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(6) (6) the the accu accuse sed d acte acted d un unde derr the the dure duress ss or domi domina nati tion on of another person; (7) (7) that that the the cond condit itio ion n of the the accu accuse sed d sho showed wed that that he was was mentally defective and the said defect impaired his capacity to appreciate the criminality of his conduct. As regards all these aggravating and mitigating circumstances, the Apex Court has made clear clear that these circumstances circumstances are not exhaustive exhaustive and every case will again depend on the facts and circumstances of each case.
305.
In the next landmark decision of Machhi Singh , the Apex Court
has stated that the following questions may be asked and answered as a test to dete determ rmin ine e the the 'rar 'rarest est of rare rare'' case case in whic which h death death sent senten ence ce can can be inflicted :
306.
(a) (a)
Is ther there e some somethi thing ng unc uncom ommon mon abou aboutt the the crim crime e whic which h rend renders ers sentence of imprisonment for life inadequate and calls for a death sentence?
(b) (b)
Are Are the the circ circum umst stan ance cess of the the crim crime e such such tha thatt ther there e is no no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
In th this au authority, th the Ap Apex Co Court ha had la laid do down fo following fi five
criteri criterias as as parame parameter terss for the assist assistanc ance e of the Courts Courts in determin determining ing whether a case falls in the category of 'rarest 'rarest of rare' I. Man Manner ner of commis commissio sion no off mur murder der..
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II. Motive Motive for commis commission sion of murder murder.. III. Anti-social or socially abhorrent nature of the crime. IV. IV. Magnitude Magnitude of crime. crime. V. V. Personality of victim of murder. murder. 307.
Since then hen on umpteen numbe umberr of occasions the vexed question
of death or life imprisonment, like to be or not to be, came up before the Apex Court and each time after elaborate discussion on the subject, Apex Court was constrained constrained to award award death penalty penalty in deserving deserving case by holding that it will be for the Legislature to decide whether death penalty should remain remain on Statute Book or not. But so long, it is on the Statute Book, Book, Court cannot abdicate abdicate its duty in awarding awarding it in deserving deserving cases. cases. For For example in the case of Ajitsingh of Ajitsingh Harnamsingh Gujral v. State of Maharashtra Maharashtra (2011) 14 S.C.C. 401 the Apex Court after examining the entire gamut of case law ,
summed up the position in paragraph 96 of its judgment as under:“It is only the legislature which can abolish the death penalty and not the courts. As long as the death penalty exists in the statute book it has to be imposed in some cases, otherwise it will tantamount to repeal of the death penalty by the judiciary. It is not for the judiciary to repeal or amend the law as that is in the domain domain of the legisl legislatur ature. e. The very fact fact that it has been held held that death penalty should be given only in the rarest of rare cases means that in some cases it should be given and not that it should never be given. As to when it has to be given, the broad guidelines in this connection have been laid down in Machhi Singh case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] which has been followed in several decisions referred to above.” above.” 308.
In Mohammed Mohammed Ajmal Mohammed Amir Kasab @ Abu Mujahid V
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State of Maharashtra (2012) 9 S.C.C. 1 the Apex Court observed: ,
“Putting the matter once again quite simply, in this country death as a penalty has been held to be constitutionally valid, though it is indeed indeed to be be awarded awarded in the ―rarest rarest of of rare rare cases cases when the alternative option (of life sentence) is unquestionably foreclosed. Now, as long as the death penalty remains on the statute statute book as punish punishmen mentt for certain certain offenc offences, es, includi including ng murder, it logically follows follows that there must be ― waging war and murder, some cases, howsoever rare or one in a million, that would call for inflicting that penalty………” 309.
Emphasizing on on the the aspect ect of of adhe dherin ring pr proport ortion ona ality be between
the gravity of the offence and sentence to be imposed without loosing the sight of criminal and victim also, in Sangeet & Anr. Anr. V. State of Haryana, (2013) (2 013) Court noted noted that the Constit Constituti ution on Bench Bench in Bachan 2 SCC 452 , the Apex Court Singh laid down that not only the relevant circumstances of the crime should be factored in, but due consideration must also be given to the circumstances of the criminal.
310.
In Sand andesh esh alias ias Sa Saiinath ath Kailash lash Abh Abhang ang vs. vs. Stat tate of
Maharashtra, (2013) 2 SCC 479, the Apex Court reiterated: 22. ……………………………… it is not only the crime and its various facets which are the foundation for formation of special reas reason onss as cont contem empl plat ated ed un unde derr Sect Sectio ion n 35 354( 4(3) 3) CrPC rPC for for impo imposi sing ng deat death h pena penallty but but it is also also the crimi rimina nall, his his background, the manner in which the crime was committed and his mental condition at the relevant time, the motive of the offence and brutality with which the crime was committed are also also to be exam examin ined ed.. The The doct doctri rine ne of reha rehabi bili lita tati tion on an and d
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doctrine of prudence are the other two guiding principles for proper exercise of judicial discretion. 311.
In a recent judgment rendered in the case of Gurvail Singh alias
Gala & Anr. V State of Punjab, (2013) 2 S.C.C. 713 , 713 , after noting the law laid down in Bachan Singh case and case and Sangeet case , the Supreme Court laid down the tests and factors for the award of death sentence as follows: 19. …………………….To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the court has to finally apply the rarest of rare cases test (R-R Test), which depends on the perception of the society and not ―Judge-centric.
312.
In the case of Sunder vs. State, (2013) 3 SCC 215 the Apex Court ,
noted the extreme misery and trauma caused to the aggrieved party (the victim) and held that, misery of a nature which can never be effaced from the minds of the parents of the victim, is of critical significance and hence it needs to be considered by the Court.
313.
In C. Muniappan V State of Tamil Nadu, (2010) 9 S.C.C. 567 the ,
Apex Court while referring to the guidelines laid down in Bachan Singh, emphasize ized d that crimina criminall law Machhi Machhi Singh Singh and Deven Devender der Pa Pall Singh Singh emphas requ requir ires es stric strictt adher adherenc ence e to the rule rule of propo proporti rtion onal alit ity y in pro providin viding g
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punishment according to the culpability of each kind of criminal conduct. The Apex Court further observed that, “Life imprisonment is the rule and death penalty an exception. Therefore, the court must satisfy itself that death penalty would be the only punishment which can be meted out to a convict. The The court court has has to cons conside iderr whet whethe herr an any y other other puni punish shme ment nt would be completely inadequate and what would be the mitigating and aggravating circumstances in the case. Murder is always foul, however, the degree of brutality, depravity and dia diaboli bolic c natu naturre diff differ er in each each case case.. Circumstan Circumstances ces under which murders take place also differ from case to case and there there cann cannot ot be a stra strait itja jack cket et formu formula la for for deci decidi ding ng upon upon circumstances under which death penalty must be awarded. In such such matt matter ers, s, it is not not only only the the natu naturre of crim crime, e, but the the background of criminal, his psychology, psychology, his social conditions, his mindset for committing offence and effect of imposing alte altern rnat ativ ive e puni punish shme ment nt on the the soci societ ety y are are also also rele releva vant nt factors.” factors.” 314.
In Mahesh V State of M.P. (1987) 2 SCR 710, 71 0, the Apex Court while
refusing to reduce the death sentence observed as follows : “It will be a mockery of justice to permit [the accused] to esca escape pe the the extr extrem eme e pena penalt lty y of law law when when face faced d with with such such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed” 315.
In Jashubha Jashubha Bharatsinh Gohil V State of Gujarat [(1994) 4 S.C.C.
189
353] , it has been held by Apex Court that, “In the matter of death sentence, the courts are required to answer new challenges and mould the sentencing system to meet meet these these challenge challenges. s. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it shou should ld be. be. Even though the principles were indicated in the backg backgro roun und d of deat death h sent sentenc ence e an and d life life sent sentenc ence, e, the logi logic c applies to all cases where appropriate sentence is the issue. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences agai agains nstt wo wome men, n, daco dacoit ity y, kidn kidnapp appin ing, g, misa misapp ppro ropri priat atio ion n of publi public c mone money y, trea treason son an and d other other offenc offences es invol involvin ving g moral moral turpitude or moral delinquency which have great impact on social order order and public interest, interest, cannot be lost sight of and per se requi equire re exem exempl plar ary y trea treatm tmen ent. t. Any Any libe libera rall atti attitu tude de by imposi imposing ng meagre meagre sentenc sentences es or taking taking too sympath sympatheti etic c view view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and agai agains nstt so soci ciet etal al inte intere rest st whic which h need needss to be care cared d for for an and d strengthened by string of deterrence inbuilt in the sentencing system.” 316.
In Ankush Maruti Shinde Shinde vs. State of Maharashtra, Maharashtra, (2009) 6
S.C.C. 667, the 667, the Apex Court has held that : “The law regul regulate atess social social inter interest ests, s, arbitr arbitrat ates es confli conflicti cting ng claims and demands. Security of persons and property of the peop pe ople le is an esse essent ntia iall func functi tion on of the the State tate.. It coul could d be achieved through ins instrum rumentality of crim riminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are requ requir ired ed to moul mould d the the sent senten enci cing ng syst system em to meet meet the the
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challenges. The contagion of lawlessness would undermine social social order and lay lay it in ruins. ruins. Protec Protectio tion n of societ society y and and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Ther Theref efor ore, e, law as a corne corners rsto tone ne of the the edifi edifice ce of orde order‘ r‘ should meet the challenges confronting the society. society. Friedman in his Law in Changing Society Society stated stated that: State of criminal law continues to be — as it should be — a decisive reflection of social consciousness of society‘. Therefore, in operating the sen se ntenc tencin ing g sy syst ste em, law shou should ld adop adoptt the corr orrect ective ive machin machinery ery or deterr deterrenc ence e based based on factua factuall matrix. matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for comm commis issi sion on of the the crime crime,, the the condu conduct ct of the the accu accuse sed, d, the the nature of weapons used and all other attending circumstances are relevan vant facts whic hich would enter into the area of consideration. ‗
‗
317.
As o bs bserved by th t he Delhi High Co C ourt in t he he re r ecent case o f
Nirbhaya case in Delhi Case Reference No.06/2013, No.06/2013, “Courts of law have been faced with the eternal strife between the humani humanisti stic c approac approach h reflec reflected ted in death death senten sentencece-inin-nonocase doctrine favoured by the Abolitionists and the retributive approach reflected in the death penalty in all heinous crimes favoured by the Retentionists. In India particularly there is a deep divide between the Abolitionists and the Retentionists for the the deat death h penal penalty ty.. The The pres presen entt po posi sitio tion n rega regard rdin ing g capi capita tall punishment is to use it as sparingly as possible, i.e., in the rarest of rare cases – and this is the system as it stands in India. True it is that it cannot be predicated that a crime-free society will dawn if the hang-man is kept feverishly busy, busy, but it is equally true that barbariac rapes and heinous murders have become the order of the day and inadequate punishment may lead lead to the the suff suffer erin ings gs of the the comm commun unit ity y at larg large. e. Soci Societ ety y ‟s abhorrence to the atrocious crimes perpetrated upon innocent
191
and helpless victims has resulted in the death penalty being retained on the statute book to remind such criminals in the society that human life is very precious and one who dares to take the life of others must lose his own life. No litmus test has been formulated to discern precisely what are the rarest of rare cases in which the alternative option of awarding life.” life.” Findings of this Court :Court :318.
This his Co Court is fu fully aw aware th that al all th these ese au autho horrities ties perta rtain to to th the
offence of murder or of rape when it is coupled coupled with murder. murder. It is bound to be so, because prior to Criminal Law (Amendment) Act, 2013, the maximum pun uniishme hment for offence nce of rape, prescrib ribed under the law, aw, was imprisonment for life. For the first first time, after after the incident of 'Nirbhaya 'Nirbhaya gang rape' in Delhi, the Legislature has, in response to the wide spread demand to make laws against rape more strict and punishment for the same more severe severe and stringent, stringent, changed the entire entire law relating relating to sexual sexual offences and rape, rape, having having regar regard d to ever ever rising rising inciden incidences ces of sexual sexual offenc offences es agains againstt women. The Committee chaired by late Hon'ble Justice J.S.Varma J.S.Varma was constituted to suggest changes in law and after wide ranging deliberations and discussions with all members of society and various stake holders, including Womens' Organizations, Hon'ble Justice Varma Committee has submitted its report, on the basis of which, Criminal Law (Amendment) Act, 2013 20 13 was was brou brough ghtt into into effe effect ct from from 03 03/0 /02/ 2/20 2014 14,, maki making ng seve several ral dras drasti tic c chan change gess in the the law law rela relati ting ng to sexu sexual al offe offenc nces es an and d rape rape,, whic which h wer were
192
considered to be the need of the hour.
319.
It is is per perttinent ent to to n no ote tha thatt th though Ju Justice Varma rma Com Comm mittee ha has
not suggested the penalty of death for offence of rape simplicitor, it has appr appro oved ved the the same same in case case of extr extrem eme e brut brutal alit ity y, like like when when vict victim im is murdered or reduced to vegetative stage during the commission of the offence or in case of repeat offenders, meaning thereby for those offenders who are 'previously convicted.'
320.
After this Am Amend endment ent Ac Act cam came e in into fo force, it it is is fo for th the fi first rst ti time,
these provisions of Section 376(E) of IPC, which prescribe death penalty as 'maximum punishment' are coming for interpretation before this Court or any other Court Court in India. Hence Hence this Court is not having having the benefit of any judicial pronouncement of Supreme Court or High Court directly on this issue. issue. This court is hence, hence, proceeding on the guidelines guidelines laid down by the higher courts while dealing with the death penalty in case of murder or murder coupled with other offences like rape, because basic principles laid down down for for impo imposi siti tion on of deat death h sent sentenc ence e will will alwa always ys rema remain in the the same same,, whether it is for the offence of murder or for rape. Neither Section 302 of IPC nor Section 376(E) of IPC which prescribe death as maximum sentence lay down any criterias or guidelines. They are laid down in Section 354(3) of
193
Cr.P Cr.P.C. which which requires requires the Court to write 'special reasons' reasons' while awarding death death and they are also found found in the above above said authori authorities ties of the Apex Apex Court which lay down the criteria of 'rarest of rare' case for imposition of death penalty and of drawing balance-sheet of aggravating and mitigating circumstances.
321.
The question like, whether Section 376(E) of IPC which
prescribes death penalty as one of the punishment for those 'previously convicted' with the offence of rape or gang rape, is Constitutionally valid or nott is yet no yet op open en..
Simil imilar arly ly whet whethe herr or no nott deat death h pena penalt lty y serv serves es an any y
penol penologi ogica call purpo purpose se is also also,, as obse observe rved d by Apex Apex Co Court urt in the the case case of Bachan Singh, a Singh, a difficult, difficult, complex complex and intractable intractable issue, issue, but so long as it is on Statute book and yet not held Constitutionally invalid, this Court has to consider its applicability in the present case and award it, if found to be befitting in the facts and circumstances of the case, after testing it on the criterias laid for imposition of death penalty.
322.
In vi v iew of of la law la laid do d own in i n ab above sa said de d ecisions of o f th the Ap Apex
Court and Hon'ble Delhi High Court, this Court is now drawing the balanceshee sheett of aggr aggrav avat atin ing g an and d miti mitiga gati ting ng circ circum umst stan ance cess an and d afte afterr givi giving ng maximu maximum m weight weightage age to the mitiga mitigatin ting g circum circumsta stance nces, s, will will arrive arrive at the
194
decision of appropriate punishment.
323.
Therefore, wh when th this Co Court is co considering to to dr draw th the ba balance-
sheet of the aggravating and mitigating circumstances, the Court has to go to the facts of the case.
AGGRAV AGGRAVATING ATING FACTS FACTS : I) 324.
The preplanned manner :As regards the aggravating circumstances, then the first and
fore foremo most st circ circum umst stanc ance, e, as right rightly ly point pointed ed by learn learned ed Spl. Spl.P P.P., is the preplanned manner in which the offence is conceived and executed with precision. This is not a case at all where the accused, being overpowered overpowered by by lust, have committed the offence but this is a case where the accused, acting in pursuance of criminal conspiracy, conspiracy, committed this most gruesome offence of gang rape.
325.
The sa said fa fact is is ga gathered an and es established fr from th the ev evidence of of
P.W.36-Aa .W.36-Aakash kash Swamy with whom the accused accused No Nos.2 s.2 and 3 were playing cards when they were called by accused No.4-Mohd.Salim on the day of incident. As per his evidence, when the phone call was received received by accused accused No.3-M o.3-Mohd. ohd.Kas Kasim, im, he said said on phone, phone, “Bol “Bol Salim Salim kya ho gaya?” gaya?”..
After After
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answering the call, accused No.3-Mohd.Kasim said to accused No.2-Siraj that there was phone call of accused No.4-Mohd.Salim and further said, “chal chal Sirju Sirju shikar shikar aa gaya hai”. hai”. When When the witness witness Aakash Aakash Swamy Swamy asked accused No.3-Mohd. Kasim as to where they were going, accused No.3Mohd.Kasi Moh d.Kasim m said to him, “Shikar “Shikar aaya hai, shikar ko jana hai”. hai”. When the witness asked him, “Kiske shikar pe jana hai”, hai”, accused No No.3-Mohd .3-Mohd Kasim said, “Hiran ke shikar pe jana hai.”
326.
The ca call de detail re records of of th the mo mobile ca calls ex exchanged be between
the accused also corroborates that accused had executed this offence in a preplanned preplanned manner. manner. The use of the code language like “shika “shikar” r” or “Hiran “Hiran” definitely shows that there was something hatched previously or they had already done such acts earlier and that was the reason they felt comfortable in using code language, on phone.
327.
There is is al also th the ev evidence of of pr prosecutrix in in th this ca case, wh who ha has
stated stated that, that, in her presen presence ce,, accused accused No No.3.3-M Mohd.Kas ohd.Kasim im shoute shouted d callin calling g other accused accused by saying, "yaha "yaha aao, shikar aaya hai." This evidence evidence clearly goes to show that it was not a sudden act but accused were acting in pursuance pursuance of the conspiracy conspiracy.. The charge of criminal conspiracy conspiracy is already held held pro proved agains againstt them them by clinc clinchi hing ng evide evidenc nce e on reco record. rd.
It is also also
196
judicially proved that, they had committed the offence of gang rape on the prosecutrix of Sessions Case No.914/2013 and they had became embolden and, therefore, they were were sure of executing this offence also. also. Therefore, the manner in which the offence has taken place i.e. in pursuance of criminal con onsspiracy, in a preplanned man ann ner, er, is one of the aggravating circumstances.
II) 328.
The diabolical manner :It is is pe perti rtinent to to no note th that, in in th this ca case th the pr prosecutrix an and he her
companion P.W P.W.17-Anurag .17-Anurag were lured into Shakti Mill premises. Even even when they were suggesting to take the road outside compound wall, they were persuaded not to do so and that too on the pretext of meeting the boss of the accused. Even though the prosecutrix requested the accused that she will talk with their boss on mobile, she was not allowed to do so on the ground that, they have entered in the railway property, without permission, which was again a false representation. On the pretext of making inquiry, as is evident from the evidence of P.W.17-Anurag, accused took prosecutrix in one room and each of the accused was going inside one after another and coming out by saying, "ladki barabar bol nahi rahi hai". When Anurag asked them what is going on inside the room, they said "woh bhi kuch nahi bol rahi hai. tum bhi kuch nahi bata rahe ho. Tum Tum donoka kuch karna padega"
197
and then all of them started laughing.
329.
This en entire co conduct of of th the ac accused cl clearly sp spells ou out th that, th they
have not only committed the rape on the helpless girl but they had planned to commit the offence at such place which is derelict one and where no one can come for help of the prosecutrix and they have done so by luring the prosecutrix to that place. Then manner in which initially accused Nos.1 Nos.1 and 4 met prosecutrix and Anurag, then they again came with accused No.3 and he called two other persons i.e. accused No.2 and juvenile-in-conflict-withlaw makes it abundantly clear that everything was done in preplanned manner, of haunting and accosting the girls, when they came to nearby area and then they are lured lured in deserted place of Shakti Shakti Mill. Further conduct of accused calling prosecutrix as “Hiran”-deer and saying that they were going for “Shikar”- hunting goes to prove their mentality of treating the helpless girls as 'prey' 'prey' and considering considering themselves themselves as 'hunters'. It shows shows that they have have scan scantt or no respec spectt at all all for a girl irl or woman omanho hood od..
They They are
considering the girls as objects of enjoyment.
330.
Furth rther conduc duct of of ac accused of thr thre eaten tening th the pr pros ose ecutrix rix with
broken glass of beer bottle, tying the hands of her companion and keeping watch on him, are also sufficient to prove that it was not an impulsive act
198
done by persons, overpowered by lust but done by the persons who were previously experienced and were fully well aware of the acts which they have to do.
III) III) 331.
Repe Repeti titi tive ve natu nature re of the the offe offenc nce: e:-As I said ea earlier, ac accused we were embo embollden, as as ac accordi ordin ng to to th them,
law enforcing machinery has not been able to catch them or touch them. They had boasted to that effect before prosecutrix by saying that she was not the first girl to be raped by them but they have already raped some other girls also also.. Howeve However, r, nobody nobody has touched touched them. them. As a matter matter of fact, these these two cases also would have gone unnoticed. Only because, in the first first case of Telephone Operator, as her mother has lodged the Missing Complaint, the offence offence came to light. Whereas Whereas in this case, case, the injuries sustained sustained by the prosecutrix were so severe that she had to rush to the Jaslok Hospital and most importantly, importantly, she took the bold stand of lodging the complaint. Hence, it came into light.
332.
The co conduct of th the ac accused in in th the ent entire in incident of bo boasting
that they have already subjected many girls to similar offence; the conduct of the accused that no one has been able to touch them or to do anything to them makes it clear that they have been embolden by repeated acts of such
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kind kind an and d they they have have furt furthe herr exhi exhibi bite ted d leas leastt regar egard d for for law law an and d orde orderr. Conversely they challenged the very law enforcing agencies. This defiant attitude attitude of the accused, extreme deviation deviation from normal conduct constitute aggravated factor. factor.
IV)
Extr xtreme Pe Perve rversity ::-
333.
The nex nextt ag aggravati ating ci circumstance nce, as as poi poin nted out out by by Sp Spl.P.P. is is
extr extrem eme e perve perversi rsity ty an and d bruta brutali lity ty in the the mann manner er of comm commis issi sion on of the the offe offenc nce. e.
It is no nott a case case of simp simpli lici cito torr rape rape or gang gang rape rape or accu accuse sed d
committing the rape in usual traditional way of having forcible vaginal interc intercour ourse se with with prosecu prosecutrix trix but they have have indulg indulged ed into into severa severall other other pervert acts by indulging into the unnatural sex, by inserting penis in the mouth of the prosecutrix and also by inserting penis in the anus of the prosecutrix. These pervert acts are are committed by by each one of them in their individual perverse way. way. As evidence shows, shows, accused No.1-Vijay No.1-Vijay compelled her for masturbation by asking her to hold his penis in her hand and also commit committed ted rape. Wherea Whereass accuse accused d No No.2.2-Si Siraj raj has forced forced her to oral oral sex though she vomited vomited and also to vaginal rape. rape. Accused Accused No.3-M No.3-Mohd.K ohd.Kasim asim raped her thrice and also subjected her to oral and anal sex by the use of physical force like punching her in the back. Accused No.4-M No.4-Mohd.Salim ohd.Salim has shown her the pornographic clip and compelled to do as shown in the
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pornographic clip. clip. She was also subjected to oral sex. sex. The suffering, trauma and agony to which the prosecutrix was subjected at that time, one can imagine, because in evidence before the Court at the time of trial also, when she was asked to identify the pornographic clip, her instant reaction of feeling like vomiting and not keeping well is sufficient indication of, to what extent she was subjected to the pervert sexual ravishing and assault.
V) V ) 334.
Exceptional depravity depravity and brutality brutality :These ac acts of of accuse used ar are al also no not on only limited ted to to pe perve rvert acts of of
sexual assault but the conduct of these accused during this entire incident is also proved to be of exceptional exceptional depravity. depravity. As stated by prosecutrix herself, accused were laughing when she was pleading with them with folded hands and requesting for mercy mercy. Though she was again and again asking them to allow allow her to go, the accused accused did not allow allow her to go. They They were not only enjoying the act of sexual assault but they were enjoying her helplessness. There There is evidenc evidence e of prosecu prosecutri trixx hersel herselff to the effect effect in which which helple helpless ss condition she was reduced. reduced. In paragraph No.24, No.24, she has categorically stated and explained her feelings by deposing that, “I cannot describe in words how bad it was. All the five of them had laughed after committing committing rape and unnatural sex with me. They did not show show any mercy on me.” me.” There is also her evidence that when she was pleading with accused No.3-Mohd.Kasim to
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let let her her go becau because se she was bleedi bleeding ng and having having lot of pain pain,, he starte started d laughing. He showed showed her broken glass bottle and said to her that she cannot go anywhere and further said "aapko malum nahi main kitna harami hoo. Aap paheli ladki ladk i nahi ho jispe hamne rape kiya hai. Hamne kai ladkiyonpe yaha rape kiya hai. Kisine hamko pakda nahi." Then he inserted his penis in her mouth. mouth. When she she pushed pushed him away away,, he got very very angry and and said, "main aapko aapko dikhata hoon." hoon." Then he punched punched on her back and forced forced her to sit on her knees and inserted penis in her anus. anus.
335.
This co conduct of of ac accused is is no not of of si simplicitor ra rape as as su such. It
proves that rape in this case is executed in the most gruesome and diabolic manner, without showing any mercy, much less some human dignity to the victi victim. m.
The The accu accuse sed d have have tota totall lly y viol violat ated ed all all the the cann cannons ons of huma human n
behaviour, tenets of human dignity and, therefore, one may say that this offence assumes serious nature than murder because of the brutality and gruesome nature with which it was committed.
336.
As re regards the the sub submissions of de defence Cou Counsel tha that acc accused
have not caused any grievous hurt to the prosecutrix, they have not used any weapon, prosecutrix is yet alive and she was not robbed, to say the least, these submissions hold absolutely no merit and are discussed only to show,
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to what what exte extent nt argu argume ment ntss are are adva advanc nced ed in such such case casess of grue grueso some me inciden incidents ts.. It has to be stated stated that though though the accused accused have not used any external weapon, they have used more powerful weapon in their possession i.e. penis with which each one of them have caused the most grievous injuries not only to the body of prosecutrix but also to her mind which will last forever.
337.
The me medical ev evidence, wh which I nee need no not go go in into ag again, sh shows
the extent and gravity of the injuries which were caused to the private parts of the prosecutri prosecutrixx i.e. vagina vagina and anus. anus. Hence, ence, it can hardly hardly be said that they have not caused grievous hurt. The trauma which the prosecutrix prosecutrix has faced, the agony which she has undergone is witnessed by the Court at the time of recordin recording g of her evidence which which continued continued for two days. days. She has undergone the exhaustive cross-examination, conducted by four defence Counsels on minutest details and aspects, which was permitted by this Court as argument advanced by defence was that, it was question of life and death of the the accused. accused. It can hence hence hardly hardly be said that that she has not suffer suffered ed any hurt or injury in the incident. The trauma and pain which she has undergone undergone during this entire entire incident incident is unparallel unparallel and beyond words words to narrate.
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338.
There is als also def definitely som something unc uncommon in the the off offence.
The gravity gravity of the injuries was such such that from the spot of incident, incident, she has to rush immediately to Jaslok Hospital in taxi. Therefore, it cannot be said the nature nature of injury was simple.
She has to be administered administered pain-killer, pain-killer, as
stated by Doctor. Doctor. The recording of her complaint went on in the the hospital on that night for two hours and throughout those entire two hours, she was crying and suffering with pain as deposed by the two witnesses who have recorded her complaint. The reaction of her mother and the conduct of the prosecutrix throughout and their suffering makes it clear that it was not simplicitor sexual ravishment but it was the most gruesome form of sexual assault. The trauma to which she was was subjected to, she may may not find easy to forget, forget, even if she tries to forget it. Therefore Therefore,, here this argument argument that no weapon was used, no grave injury was caused or accused had not robbed her or she is alive, as if they have done mercy to her by keeping her alive, is to say the least, not at all acceptable and cannot reduce the gravity of the offence offence or the exceptional depravity depravity on the part of the accused. The entire entire conduct of the accused throughout the incident shows the depravity of their character and also their incorrigible attitude.
VI) 339.
Anti Social or Socially Socially abhorrent nature nature of the crime crime :No ne need to to st state th that if if at at al all an any cr crime is is an anti-social, th then it it is is
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rape and if socially abhorrent then it is, gang rape, that too committed in a syst system emat atic ic,, diab diabol olic ical al an and d perv perver ertt mann manner er,, with with prepre-pl plan anni ning ng an and d conspiracy.
VII) Incident Shocking Shocking to the collective collective conscience conscience of Society:340.
Apex Co C ourt has in se s everal of o f it i ts au a uthorities li l ike Dhananjoy
Chatterjee applied applied this test as to whether incident involved in the case has shocked the collective conscience of the society and held that if answer to this question question is yes, yes, then the accused accused deserves deserves death penalty penalty.. In Machhi also,, Apex Apex Co Court urt held held the the death death pena penalt lty y may may be impo imposed sed when when Singh also societ society's y's collec collectiv tive e consci conscienc ence e is shocked, shocked, it will will expect expect the holders holders of Judicial Power centre to inflict death penalty, irrespective of their personal opinions as regards, desirability or otherwise of retaining death penalty and in the present case of introducing death penalty for the repeat offence of gang rape.
341.
Hence th the qu question is is wh whether th this in incident of of ga gang ra rape ha h as
shocked the collective conscience of society? The answer is emphatic “yes. “yes.”” It has to be stated that after that incident of 'Nirbhaya gang rape' in Delhi, if at all any incident has shocked, not only Mumbai but entire nation as such, then it was this incident. incident. It is not that earlier earlier to this incident incident or after this
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inciden incident, t, rapes and even gang rapes rapes have not taken taken place. place. But But what what was found shocking in this incident was the planned manner in which offence was executed, and that too with utmost perversity and depravity, depravity, in a repeated manner on helpless girls. girls. The fact that this incident has happened even even befo before re the the uproa uproarr an and d an angu guis ish h crea create ted d by Nirb Nirbha haya ya incid inciden entt was was calmed down, the fact that despite stringent laws being made, the young youths are repeatedly indulging into such barbaric inhuman offence, having least regard to the sanctity of human life and individual dignity, totally defying law and order, was beyond toleration and understanding of the society.
342.
The cr crime is is en enormous as as it it ha has pu put th the sa safety of of en entire wo women
hood at stake. This incident created a dent in the belief that Mumbai Mumbai is still a safe city for women. The fact that in the heart of the city, city, like Mahalaxmi Mahalaxmi area also, the young girls are not secure or safe but subjected to most savaged form of sexual assault by the young boys of this very city, was shocking shocking to one and all. It created created a feeling feeling of helplessness helplessness in parents, parents, in women, in girls and in every section of society. society. The entire sequence of events created a fear psychosis and left a scar on the social order and became a burning burning social issue. issue. Social Social abhorrence abhorrence and the national national shock created by this incident was just parallel to the one evoked by Nirbhaya
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inciden incidentt in Delhi. Delhi. In that case victim victim was not left alive. alive. In this case, case, the victim victim is left left alive alive but society society is yet to recov recover er from from the aftermath aftermath of the shock. The repetitiveness of the acts of gang rape in planned, systematic manner was shocking. In Devender Pal Singh v. State (NCT of Delhi) (2002) 5 S.C.C. 234 the Apex Court has held that, when the collective conscience of ,
the community community is shocked, shocked, the Courts Courts must award award the death sentence. The dastardly acts of the accused in the said case were opined by the Court to be diabolic in conception and cruel in execution.
VIII) Magnitude Magnitude and Enormity of Crime :343.
It is is th the so society's ab abhorrence to to su such cr crimes of of ga gang ra rapes, to to
the persons who commit such offences which has compelled the legislature to introduce the death penalty as one of the punishment for the repeated offence offence of gang rape. Society Society wants to put an end to this menace. menace. Hence, Hence, under Section 376(E) of IPC, death penalty is prescribed not only for the repeat offence of gang rape under Section 376(D) but also if he is previously convicted for rape under Sections Sections 376 or 376(A) 376(A) of IPC. Here these these accused Nos os.. 1, 3 & 4 are are prev previo ious usly ly also also convi convict cted ed indi indivi vidua duall lly y an and d read read with with criminal conspiracy for the offence of gang rape and in this case again for the same offence of gang rape executed in the same preplanned manner. Offence of gang rape being more serious, under Section 376(D) of IPC also
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the maximum penalty prescribed is of life imprisonment, implying thereby for remaind remainder er of their their natural natural life. No Now w, in this case also they are again convicted for the same offence of gang rape which is executed in much more heinous and serious manner, being embolden due to earlier incident or may be some more incidents which may not have seen the light of the day.
344.
In th the pr previously co convicted ca case, acc accused No Nos.1, 3 and and 4 are are
already sentenced to life life imprisonment. Hence, to emphasize on gravity of the offence of gang rape being committed repeatedly, if the legislative intent of treating it as graver offence, is to be given effect to, then also no lesser punishment than that of the death can meet the ends of justice. There is no other alternative left in this case except to impose the death penalty, in the larger public interest and to maintain integrity of human dignity. dignity.
345.
The present ent ca case th thus satisfies th the fo four agg aggrravating fa factors laid
down in the case of Machhi Singh and also reiterated in the latest decision of Gurvail Singh @ Gala & Anr. Vs. State of Punjab (2013) 2 SCC 713, namely (i) (i) inte intens nse e an and d extr extrem eme e indi indign gnat ation ion of so soci ciet ety y. (ii) (ii) demon demonst stra rati tion on of exceptional depravity and extreme brutality (iii) extreme misery inflicted upon the prosecutrix (iv) grave impact of crime on social order.
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MITIGATING CIRCUMSTANCES :346.
On th this as aspect, th the on only mi mitig tigating ci circumstan anc ces pl pleaded ded ar are of of
young age of the accused, their social-economic conditions and dependency of their family members.
I) 347.
Young Age of the Accused :As a matt atter of of fa fact, for the of offence nce of of rap rape e an and es especially of of ga gang
rape, the young age of the accused cannot be a mitigating circumstance at all. all. Apex Apex Court in its various various authorit authorities ies,, held that that young young age cannot cannot by itself be a decisive factor to reduce punishment.
348.
However, as this Court is considering the option of death
pena penalt lty y in view view of the the law law laid laid down down in Machhi this mitiga mitigatin ting g Machhi Singh Singh , this circumstance is also being considered.
349.
In re respect of of im imposition o off de death pe penalty al also, th the Ap Apex Co Court
has time and again, emphasized that the young age of the accused a ccused is not by itself a determinative factor against the award of the death sentence. The cumulative circumstances have to be taken together and a comprehensive view taken after proper weightage being given to each circumstance .
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350.
Learned Sp Spl.P.P. has has als also rel relied upo upon the the two two aut authorities, one one
that of Jai of Jai Kumar V State of M.P. 1999 S.C.C.(Cri) S.C.C.(Cri) 638 wherein though the accused was a young man of 22 years of age, it was not held as a mitigating factor and the penalty of death was confirmed after taking recourse to the entire Law of Penology.
351.
The yo young ag age of of th the ac accused wa was al also ad advanced as as mi mitigating
factor in the case of Dhananjoy Chatterjee V State of West Bengal 1994(2) SCC 220 but the Apex Court has negatived the said contention as mitigating factor and held that where the collective conscious of the society is shocked, then then that that is the rele relevan vantt fact factor or whic which h the Co Cour urtt has has to cons conside iderr whil while e imposing the appropriate punishment and the Apex Court has affirmed the death penalty.
352.
In ample number of authorities like (i) Moha Mohamme mmed d Ajmal Ajmal
Mohammad Amir Kasab @ Abu Mujahid V State of Maharashtra, (2012) 9 S.C.C. 1; (ii) Atbir V State (NCT of Delhi) (2010) 9 S.C.C. 1; (iii) Vikram Singh V State of Punjab (2010) 3 S.C.C. 56 and (iv) and (iv) Shivu V High Court of Karnataka (2007) 4 S.C.C. 713, the Apex Court has observed that the young age of the accused is not by itself a determinative factor against the award of the death sentence. sentence. The cumulative cumulative circums circumstances tances have have to be taken together together and a
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comprehensive view be taken after proper weightage being given to each circumstance and after taking such view, upheld death sentence despite young age of the accused in these and other cases.
353.
The poi point the therefore to be be st s tressed is is tha that yo y oung ag a ge of th the
accused on which much emphasis is given by accused and their Counsel, though can become to some extent mitigating factor in other offences and other cases but not in the case of gang rape and that too by repeated offenders. Unless a person attains puberty puberty and maturity, maturity, he will not commit the offence of gang rape, in pursuance of criminal conspiracy which was hatched hatched and which is evident from the record record of the case. Therefor Therefore, e, here the young age of the accused cannot be called as mitigating factor.
354.
The ve very fa fact th that th the ac accused ca can co commit th the ac act of of ra rape an and
that that too too in such uch a bruta rutall man anne nerr nega negattives ives the the po poss ssib ibil iliity of the their improvement also. also. A young person will not commit such pervert acts even though he is not well educated and is coming from poor strata of society. The perversity, the depravity which is found writ large on the record of the case does not permit the Court to accept their plea of young age or of opportunity to reform.
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355.
Moreover he herein th the ca case, ac accused th though yo young ar are pr proved to to
be habitual offenders offenders.. It is pertinent pertinent to note that even in above said said cases where criminal antecedents were lacking, Apex Court has confirmed the death penalty.
356.
Moreover as regards, the opportunity of reformation or
rehabilitation, the Court has to ascertain, whether the conduct of accused is such that they can be reformed? reformed? However However even if a cursory glance glance is given to the facts of the case discussed above, it cannot be said that accused are having any mindset mindset for reformation reformation.. If they had such mindset mindset and desire, desire, they would would not have repeated the act of gang rape. If they had desire, desire, they would have improved their conduct when two of them i.e. accused No No.1.1 Vijay and accused No No.3-Mohd.Kasim .3-Mohd.Kasim were already held guilty by Juvenile Justice Board twice each, for the offences of theft and were released on the bond bond of go good od beha behavio viour ur..
The The pros prosec ecut utio ion n has has brou brough ghtt on reco record rd the
evidence to show that accused No.3 -Mohd.Kasim was held guilty for the two offences of thefts in the year 2011 itself and he was released on the bond of good behaviour of three years by the Juvenile Justice Board in both the cases. Even before the bond executed in those cases expired, expired, accused No.3No.3Mohd.Kasim has committed these two offences and this time they are more serious offences of gang rape.
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357.
Even as re regards acc accused No No.1-Vijay, it is is bro brought on on re record by by
learn earned ed Cou ouns nsel el for acc accused used himse imsellf, in the cross ross exam examin inat atio ion n of prosecution witnesses that he was also held guilty in two cases filed against him before Juvenile Juvenile Justice Board Board for committing the offence of theft. Thus both both accused accused No.1-V o.1-Vija ijay y and accuse accused d No No.3.3-Mo Mohd. hd.Kas Kasim im were were given given the opportunity opportunity of reformation. reformation. In tune with the very object object of the J.J.Act that that the the youn young g offen offender derss shou should ld get get an opport opportun unit ity y to refo reform, rm,
inst instead ead of
senten sentencin cing g them them to any impriso imprisonme nment nt or any deterr deterrent ent punishm punishment ent as such, they were released on bond of good behaviour by Juvenile Justice Board to improve themselves and be good members of the society.
358.
At this his stage, it it ma may al also be be st state ated, this Court is aw aware of of the bar bar
laid down in Section 19 of the J.J.Act to the effect that : 19. Remo Remova vall of disqu disquali alific ficati ation on atta attachi ching ng to to convi convicti ction. on.-- (1) Notwi otwith thst stan andi ding ng an anyt ythi hing ng cont contai aine ned d in an any y othe otherr law law, a juvenile who has committed an offence and has been be en dealt with under the provisions of this Act shall not suffer disqualification, if any, any, attaching to a conviction of an offence under such law. (2) (2) The The Boar Board d shal shalll make make an an orde orderr dire direct ctin ing g that that the the rel releva evant nt records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be. 359.
As per per Sp Spl.P.P. thi this dis disqualification is on only in re respect ect of se servi rvice
matters matters and not for other aspects. aspects. As a matter of fact, this this Court was also
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not going to consider this part of the evidence about accused Nos.1 and 4 being held guilty and released on bond of good behaviour by Juvenile Justice Board. Board. How oweve everr, as regards regards accuse accused d No.1, o.1, this this evidenc evidence e is brought brought on record by accused No.1 himself through the evidence of his mother and through the cross-examination of P.W.45-P .W.45-P.I.Nikumbe. Similarly as regards, accused No.3-Mohd.Kasim, this evidence is highlighted by defence Counsel to show that earlier these accused were held guilty in respect of minor offences like theft and not the offences like rape. rape. Thus, accused themselves themselves have given up the protection available to them under Section 19 of the J.J.Act. Hence, this Court has to consider this evidence.
360.
In con conssider dered opin pinion of this Co Court, rt, ev even if if the ev evidenc ence of of th their eir
being held guilty by Juvenile Justice Board is excluded from consideration, it does not make much differenc difference. e. That evidence evidence was relevant relevant only to show that accused are not having any chances of reformation. This fact is neither cons consid ider ered ed as aggr aggrav avat atin ing g or miti mitiga gati ting ng circ circum umst stan ance ce in an any y of the the autho authorit ritie iess refe referr rred ed abov above, e, when when even even in the abse absenc nce e of an any y evid evidenc ence e showing any criminal antecedents, the Apex Curt has upheld the sentence of death, despite young age of the accused, having regard to the enormity of the offence and other aggravating circumstances being satisfied.
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361.
Moreover, in in th the in instant ca case, th there is is ev evidence on on re record th that
even after becoming major, these very accused have committed the offence of gang rape in equally brutal manner on the prosecutrix in Sessions Case No.914/2013 on 31/07/2013 just few days before this incident and then boasted boasted about it in this incident. Their incorrigible incorrigible attitude, attitude, no remorse remorse or repent repentanc ance e exhibi exhibited ted at any time time during during trial, trial, also also totall totally y remov removes es any possibility of their reformation.
362.
With th the gr growing ag age, th the ac accused ha have be become wo worse. The
moment they became major, major, they started indulging in sexual offences. offences. It is not just meticulously choosing place of offence i.e. the deserted and defunct premises premises of Shakti Mill but calling each other on phone and addressing the victim as “shikar” and enjoying the entire incident and boasting about it, shows shows that accused accused are no more more young. young. Theref Therefore ore,, it cannot cannot lie in their their mouth to say or plead that as they are young, they should be given benefit of young age and they should be given an opportunity once again to reform themselves.
363.
The qu question is is ho how ma may ti times su such op opportunity is is to to be be gi given
if they are misusing it and meanwhile subjecting the victims to untold trauma and creating a feeling of insecurity in the entire women folk as such?
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How many more victims to still suffer? Just as their life life is important, lives lives of these girls and their families, who for no fault on their part suffered or will continue to suffer, suffer, is also important. Rights of society society and victims, the stake in maintenance of law and order, efficacy of Judicial System are also equally and far more more important. important. Society's Society's cry cry for justice justice has to be be answered. answered. How How can can on one e expec expectt socie society ty to sile silent ntly ly suff suffer er such such atta attack ckss on thei theirr wo wome men, n, mothers, daughters, grand-daughters? Somewhere it has to stop. stop.
II) II) 364.
:Soci Socioo-ec econ onom omic ic stat status us of the the acc accus used ed :Again tho though it is is not not a relevant con consideration for for dec deciding
quan quantu tum m of sent sentenc ence e in rape rape case cases, s, as accu accuse sed d Nos os.1 .1 an and d 4 have have led led evidence of their mother on this aspect, I am considering it.
365.
In the authority of Shimbhu Shimbhu & Anr. Anr. V State State of Haryana, Haryana, Apex
Court has held that, the social status of the accused and the other aspects like religion, race, caste or creed of the accused cannot be the relevant factors when the Court is considering the appropriate punishment for rape. In the words of the Apex Court, “Crimes of violence upon woman need to be severely dealt with. Socio-economic status, religion, race, caste or creed of the the acc accused used or vic victim tim are are irr irrele elevant vant con onsi side dera rati tion onss in senten sentencin cing g policy policy.. Protec Protectio tion n of society society and deterri deterring ng the criminal is the avowed object of law and that is required to be
216
achieved by imposing appropriate sentence.” 366.
In the case of State of Karnataka Karnataka Vs. Krishnappa Krishnappa (2000) 4 SCC 75
the Apex Court has held that, “The measure of punishment in a case of rape cannot depend depend upon the social social status of the victim victim or the accused. accused. It must must depend upon the conduct of the accused, the state and age of the victim and gravity gravity of the act. Crimes Crimes of violence violence against women women need to be severely severely dealt with.”
367.
Learned Sp Spl.P.P. ha has al also re relied up upon Sevak Perumal & Anr. V
State of Tamil Nadu 1991 S.C.C.(Cri) 724 in in which also, the Apex Court has held that, the grounds like accused are the bread winners or their family is consis consistin ting g of minor minor childr children en and age old parent parentss and, therefore therefore,, death death sentence sentence may be converted into life cannot be accepted accepted because because according according to Apex Court, there is no force in such arguments as these compassionate grounds will always be present in most cases and, therefore, they are not relevant for interference in the penalty of death which was imposed by the Trial Court.
368.
Therefore, young age, socio-economic condition and the
chance chance of reforma reformatio tion n which which are are advanc advanced ed as mitiga mitigating ting circum circumsta stance ncess
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cann cannot ot be invok invoked ed in this this case case,, in view view of the the disc discus ussi sion on held held abo above. ve. Accused had the chance of reformation. They had the young age to their advanta advantage ge but they they have have misuse misused d the same. same.
Theref Therefore ore,, the mitigati mitigating ng
factors are conspicuously absent in the instant case. In the instant case, the enormity of the crime, the diabolical and preplanned manner in which it was executed, the socially abhorrent nature of the crime and the shock to collective conscious of the society, all these are the relevant factors and they are in the most aggravating form in the present case.
III) III) 369.
:Othe Otherr Mit Mitig igat atin ing g Fac Facto tors rs :It is is al also no not a case wh where ac accused ha have co committed th the of offence
under under any duress duress or under under any compuls compulsion. ion. On the contra contrary ry,, they were were enjoying enjoying the entire entire incident as such, as stated above. above. They were were also not morally morally justified justified in committing committing this heinous heinous act of gang rape. rape. I mean, this circumstance does not come in picture at all, as there can never be moral justification for committing rape on a girl, much less gang rape. Especially this this is a case case where where accused accused were were totall totally y unprovoke unprovoked. d. There There is nothin nothing g either on the part of prosecutrix or her companion doing any act to subject them to such brutality brutality..
On the contra contrary ry,, prosec prosecutri utrixx and Anurag Anurag were
pleadin pleading g again and again to allow allow them to go. They They were also asking asking the accused to take their mobile and camera in lieu of allowing them to leave
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but, those pleas fell in deaf ears.
Conclusion :Conclusion :370.
Therefore in in an answer to to th the qu question wh whether th the de death or or li life,
needless to say that all the aggravating factors in the case, like the manner in which the offence was executed and the entire conduct of the accused before and throughout the incident, the enormity of the crime and the collective conscience of society being shocked, if the balance-sheet is drawn of mitigating and aggravating factors and maximum weightage is given to the only mitigating factor like young age of the accused, even then the aggravating aggravating factors factors far outweigh outweigh the balance. balance. If this is not a case wherein death sentence, which is prescribed by the law as one of the option, is to be invoked, then in which case?
371.
After all all, the the Co Court has has to re respect the the leg legislative wis wisdom, as
stated by the Apex Apex Court itself. The Court has to ensure that punishment is commens commensura urate te with the gravity gravity of the offence offence.. The Court Court has to keep in mind that if, the Legislature in its wisdom has prescribed, either the life impri impriso sonm nment ent or death death pena penalt lty y for for the the repea repeate ted d offe offend nder ers, s, then then the the Legislature has definitely in mind that there will be some cases where the minimum punishment of life imprisonment will not be sufficient because
219
the facts of such case will demand that Court should go above and beyond the life imprisonment and impose death penalty. penalty.
372.
As observed by the Apex Court in the case of State of M.P. V Bala
held that: alias Balaram AIR 2005 S.C. 3567 held “The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the concerned offence, its impact on the society and what the Legislature considers as punishment suitable for particular offence. offence. It is necessary necessary for the Court therefore therefore to imbibe imbibe the Legisla Legislativ tive e Wisdo Wisdom m and respe respect ct it. Court Court has to conside considerr plight of victim in a case involving rape and social stigma that may follow the the victim to the grave. The Court has to do justice to the Society and to the victim on the one hand and to the offender on the other”. other”. 373.
As regards the crimes against women and especially the
offences of rape and gang rapes, the Apex Court has always taken a stern stand and emphasized on stringent punishment. In the recent judgment of Shimbhu & Anr. V State of Haryana 2013 ALL MR(Cri) 3306 ( S.C.) ( S.C.) also, the Hon'b Hon'ble le Supr Supreme eme Co Court urt held held that that in inciden incidents ts of gang gang rape, rape, no lenienc leniency y should be shown by the the Court. A three Judge Judge Bench of the Hon'ble Supreme Supreme Court in this case after noting that the Legislature has through the Criminal Law (Amendment) Act, 2013, not only deleted the Proviso under Section 376 of I.P I.P.C. .C. givin giving g discr discreti etion on to the the Co Court urt of givin giving g less less than than mini minimu mum m puni punish shme ment nt for for “adeq adequa uate te an and d spec specia iall reas reason onss” but but in the the wake wake of
220
increasing crimes against women, but also enhanced minimum sentence to 20 years which may extend to life which shall mean imprisonment for the remainder of that person's natural life with fine. fine. According to Apex Court, “This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking taking aid of the proviso proviso to Section Section 376(2) 376(2) IPC. IPC. The above above trend trend exhibits exhibits stark insensitivit insensitivity y to the need for proportionate proportionate punishments to be imposed in such cases.” In this case, the Apex Court affirmed its earlier decisions in State of M.P. V. Bala @ Balaram and State of Karnataka V Krishnappa (2000) 4 S.C.C. 75 wherein it was held that : “To show mercy in the case of such a heinous crime as gang rape, a crime against society, a crime against human dignity, one that reduces a man to an animal would be a travesty of justice and an affront to society notwithstanding the long pendency of the criminal trial or offer of the rapist to marry the victim or the socio-economic status, religion, race, caste or creed of the accused, which are irrelevant circumstances.” circumstances.” 374.
T he
Apex
Court
has,
thus,
always
emphasized
on
proportionality between sentence to be imposed and the gravity of the offe offenc nce e an and d cons consid ider ered ed the the offe offenc nce e of rape rape as grav grave e on one e an and d call call for for stringent stringent punishment. punishment. According According to Apex Court, Court, gravity gravity of the offence of rape and the punishment imposed for should commensurate with each
221
other, otherwise the law will loose its binding and deterrent effect.
375.
In the case of Union nion of Indi India a V Devend Devendra ra Nath Nath Rai (2006) (2006) 2
S.C.C. 243, the the Apex pex Cou ourt rt has has furt furthe herr elab elabor orat ated ed on the the aspe aspect ct of punishm punishment ent by quoting quoting Lord Lord Justi Justice ce Dennin Denning, g, Ma Maste sterr of the Rolls Rolls of the Court of Appeal in England, as follows: “Pun unis ishm hmen entt is the the way way in whic hich so soc ciet iety expr expres esse sess its denunciation denunciation of wrongdoing; wrongdoing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately adequately reflect reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive preventive and nothing else. … The truth is that some crimes are so outrageous that society insists on adequate punishment, because because the wrongdoer wrongdoer deserves it, irrespectiv irrespective e of whether it is a deterrent or not.” no t.” 376.
In J. J.J. Ro Rousseau' au's The Soc Sociial Con Conttract wri writtten in 17 1762, he he sa says : “Agai Again, n, every every rogu rogue e who who crim crimin inou ousl sly y attac attacks ks so soci cial al right rightss becomes, by his wrong, a rebel and a traitor to his fatherland. By contravening its laws, he ceases to be one of its citizens: he even wages war against it. In such circumstances, the State and he cann cannot ot both both be save saved: d: on one e or the the othe otherr must must peri perish sh.. In killing the criminal, we destroy not so much a citizen as an enemy. enemy. The trial and judgments are proofs that he has broken the social contract, and so is no longer a member of the State.”
377.
In the case of Dhananjoy Chatterjee V State of West Bengal
1994(2) S.C.C. 220, the Apex Court has once again reiterated that, “The “The meas measur ure e of the the puni punish shme ment nt must must depe depend nd upon upon the the
222
atroc atrocit ity y of the the crim crime, e, the the cond conduc uctt of the the crimi criminal nal an and d the the defenc defencele eless ss and unprote unprotecte cted d state state of victim victim.. Impos Impositi ition on of appropriate punishment is the manner in which the courts respond respond to the society's society's cry for justice justice against against the criminals. criminals. Justi ustice ce dema demand ndss that that cour courts ts shou should ld impo impose se puni punish shme ment nt befitting the crime so that the courts reflect public abhorrence of the crime. crime. The courts must must not only keep in view the the rights of the accused but also the rights of the victims and the society at large arge,, while hile con onsi side deri ring ng impo imposi siti tion on of appr approp opri riat ate e punishment.”
378.
In the case of Shivu vs. The Registrar General, High Court of
Karnataka, (2007) 4 SCC 713 , the Apex Court observed that, “anyth anything ing less less than than a penalt penalty y of great greatest est severit severity y for any any serious crime” must be thought to be a measure of toleration that is unwarranted and unwise. It was further observed that quite apart from those considerations that make punishment unju un just stif ifia iabl ble e when when it is ou outt of propo roport rtio ion n to the crim rime, unif un ifor orml mly y disp dispro ropo port rtio iona nate te puni punish shme ment nt has has so some me very very undes un desir irabl able e prac practi tica call cons conseq eque uenc nces es.. “Proporti “Proportion on between between crime and punishment was thus a goal to be respected in principle in spite of errant notions.” 379.
In Machhi Singh , while justifying the punishment of death of
'rarest of rare cases', the Apex Court held that, 32. The reasons reasons why the community community as a whole does nott endor no endorse se the the huma humani nist stic ic appr approa oach ch refl reflec ecte ted d in 'deat 'death h sentence-in-no-case' doctrine are not far to seek. In the first plac place, e, the the very very huma humani nist stic ic edif edific ice e is cons constr truc ucte ted d on the the foundation of 'reverence for life' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this this doctri doctrine ne.. Seco Secondl ndly y, it has has to be real realiz ized ed that that every every member of the community is able to live with safety without his
223
or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples scruples in killing killing others if it suits their ends. Every member of the the comm ommun unit ity y owes a debt debt to the the com communi munity ty for this this protection. When ingratitude is shown instead of gratitude by 'kil 'killi ling ng'' a memb member er of the the comm commun unit ity y whic which h prot protec ects ts the the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so 'in rarest of rare cases' when its colle collect ctiv ive e cons consci cienc ence e is so shoc shocke ked d that that it will will expe expect ct the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwis otherwise e of retai retainin ning g death death penalt penalty y. The commun community ity may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance....” instance....” 380.
There ar are se several of of su such de decisions of of th the Ap Apex Co Court in in wh which
Apex Court has affirmed the death sentence as the only option holding that no other other punish punishme ment nt can can meet meet the the ends ends of just justic ice e on acco accoun untt of the the depravity of the mind of the accused and the brutality in committing the offenc offence, e, holdin holding g that they constit constitute ute “specia speciall reason reasons” s” requi required red for the award of death sentence as they reflect the mindset of the accused which is incapa incapable ble of reformati reformation. on. Some Some of these these decisions decisions are based based on direct direct evidence, evidence, some on circumstan circumstantial tial evidence. evidence. In some decisions, decisions, liability liability of accused accused was proved proved to be individual, individual, in some constructive constructive or joint. Some
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offences were preplanned and some offences were committed on the spur of moment.
381.
Herein th the ca case, it it ha has to to be be st stated th that if if on one ha has re regard to to al all
the aggravating factors which are elaborated above, then this is the fit case in which, the Court has to invoke the death penalty as the other option of life ife impr impris ison onm ment ent whic hich is presc rescri ribe bed d in Secti ection on 37 376( 6(E) E) of IPC IPC is unquestionabl unquestionably y closed. closed. Law is well well settled settled that the Court Court has to do justic justice e not only to the accused accused but also to the victim victim and the society at large. large. As held by Apex Court itself, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society would no long endure such serious serious threat threats. s. Theref Therefore ore,, it is the duty of this this Court to award proper proper sentence sentence having regard regard to the nature of offence and the manner in which it was executed. To expect society to be a silent spectator to this kind of deprived behaviour and to continue to extend its protective arms to the convicts would be both unnatural and ridiculous. Here the exemplary and rarest of rare punishment is required.
382.
As held by the Apex Court in the case of Madan Gopal Kakkad V
Naval Dubey (1992) 3 S.C.C. 204 , “such sexual offenders who are menace to
225
the society, should be mercilessly and inexorably punished in the severest terms. terms.”” As per the Apex Apex Court, the Judge Judge who bears the sword sword of justice justice should not hesitate to use that sword with the utmost severity, to the full and to the end, if the gravity of the offence demands so.
383.. 383
This is a case where there is violation of all the rights of the
victi victim m both, both, fund fundam ament ental al an and d Co Cons nsti titu tuti tion onal al an and d also also the the viola violati tion on of indivi individual dual dignit dignity y.
It was a dehuman dehumanizi izing ng act which has left behind behind a
trauma traumatic tic experie experience nce.. It is not only a crime crime against against her but also crime agai agains nstt so soci ciet ety y, agai agains nstt basi basic c huma human n right rightss an and d also also viol violat ates es the the most most cherished fundamental rights guaranteed under Constitution. Therefore, if one has regard to all these facts and circumstances of the case, to give lesser punishment punishment to the accused in such situation situation would be to render the justice justice delivery system of the country country a suspect. The common man will will loose faith in the Court.
384.
In su such ca cases, as as ob observed by by th the Ap Apex Co Court in in th the ca case of of
Mahesh V State of o f M.P. M.P. (1987) 2 SCR 710 , the common man understands and appreciates the language of deterrence more than the reformation language. The The maxim aximum um puni punisshmen hmentt is no nott on only ly to dete deterr the the acc accused used from rom committing the similar offence but it is also to send a strong signal and
226
message to the society at large that such offence will not be tolerated. There should be zero tolerance to such offences and then only the tendency of the like minded person person to commit such offences offences will be curbed. Protection Protection of society and deterring the criminal is the avowed object of law and that is required required to be achieved achieved by imposing imposing appropriate appropriate sentence. sentence. Courts Courts must hear the loud cry for for justice of the society in cases of heinous crime of rape on innocent, helpless girls of tender years, as in this case, by imposition of proper sentence.
385.
On beha ehalf of accused No.2 Learned rned Coun unssel Shri Keshav Cha Chava van n
has also submitted that even after Nirbhaya's case and the amended penal law, law, the crime rate against women has not decreased. Hence, according to him, awarding awarding severe form of punishment punishment to accused accused is no solution to stop these crimes. In this regard regard observations made by Hon'ble Delhi High Court Court in Nirbhaya's case, case, are more more than eloquent. It was held in this authority by by Hon on'b 'ble le Delh Delhii High High Co Court urt that that “the “the objec objectt of sente sentenc ncin ing g is to impos impose e appropriate appropriate punishment punishment befitting befitting to the crime. Thus, irrespect irrespective ive of the fact, whether the death sentence has deterrent effect or not, to award lessor punishment to the convicts by letting them escape death penalty, would do more harm to Judicial System.”
227
386.
Thus,
I
am
constrained
to
hold
th a t
the
mitigating
circumstances like young age of accused, their socio-economic conditions and non-existing chances of their reformation, pale into insignificance in the light of the aggravating aggravating circumstan circumstances. ces. Hence Hence this case, without without any doubts, falls into the category of the “rarest “rarest of rare.” rare.” Therefore, if the object of punishment is to be achieved, then herein the case, only maximum punishment will send the message to the society and also to similar like minded persons persons..
To show show leniency leniency or mercy mercy in in the case of of such heinous heinous
crime and on the accused who have shown no repentance or remorse after exhibiting exhibiting extreme extreme depraved mentality mentality would be a travesty travesty of justice. justice. This Court cannot cannot do so. Hence, Hence, though though this Court is fully aware aware of irrevocable irrevocable natur na ture e of the death death penal penalty ty,, this this Co Court urt has has to awar award d that that sent senten ence ce to accused Nos.1, 3 and 4 for the offence punishable under Section 376(E) of IPC IPC an and d as regar egards ds acc accused used No.2, .2, the the maxim aximum um sent senten enc ce of life ife imprisonment, which shall mean the imprisonment of remainder of his natural life for the offence punishable under Section 376(D) of IPC.
387.
At this stage, this Court cannot stop from making certain
observations. Considering the evidence led by the accused themselves of their mothers mothers,, this Court also cannot cannot be oblivious oblivious to their their plight. plight. In my my considered opinion, therefore, both the NGOs and State Government can
228
come forward for their help. help. Voluntary Organizations have great role to play so far far as this this aspec aspectt is conce concerne rned. d.
In the the end, I proce proceed ed to pass pass the the
following order. : O R D E R : R : 1.
Accused No.1-Vijay Mohan Jadhav @ Nanu , accused accused No No.3.3-
Mohd. Kasim Mohd Hasim Shaikh @ Bangali and accused No.4- Mohd. Salim Mohd. Abdul Kaddus Ansari are convicted as per section 235(2) of Cr.P.C. for the offence punishable under section 376(E) of IPC and each of them be hanged by the neck till they are dead. 2.
Accused No No.1-Vijay Mo Mohan Ja Jadhav @ Nanu , accused No.2-Siraj
Rehmat Khan @ Sirju, accused No.3-Mohd. Kasim Mohd Hasim Shaikh @ Bangali and accused No.4- Mohd. Salim Mohd. Abdul Kaddus Ansari are convicted convicted as per section section 235(2) 235(2) of Cr.P.C. for the offence offence punishable punishable under Section 376(D) individually and also r/w 120-B of IPC and each of them is sentenced to suffer Rigorous Imprisonment for life, which shall mean the imprisonment of remainder of their natural life and to pay fine of Rs. 5,000/- (Rs. Five Thousand only) each, in default R.I. for 1 (One) year each. 3.
Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offence punishable under Section 120-B of IPC and each of them is sentenced to suffer Rigorous Imprisonment for life and to pay fine
229
of Rs. 3,000/- (Rs. (Rs. Three Thousand only) each, each, in default default R.I. for 1 (One) year each. 4.
Accused Nos.1 to 4 are further convicted as per se section 235(2) of
Cr.P.C. for the offence punishable under punishable under Section 377 individually and also r/w r/w 120120-B B of IPC IPC and and each each of them them is sent senten ence ced d to suff suffer er Rigo Rigoro rous us Imprisonme Imprisonment nt for life and to pay fine of Rs.3,000/Rs.3,000/- (Rs.Three (Rs.Three Thousand Thousand only) each, in default R.I. for 3 ( Three ) months each. 5.
Accused Nos.1 to 4 are further convicted as per se section 235(2) of
Cr.P.C. for the offence punishable under Section 354-A(iii) individually and also r/w 120-B of IPC and each of them is sentenced to suffer Rigorous Imprisonment for 3(Three) years. years. 6.
Accused Nos.1 to 4 are further convicted as per se section 235(2) of
Cr.P Cr.P.C. for the offence offence punishable punishable under Section 354(B) individually and also r/w 120-B of IPC and each of them is sentenced to suffer Rigorous Imprisonment for 3 (Three) years and to pay fine of Rs.1,000/-(Rs. One Thousand only) each, in default R.I. for 3(Three) 3( Three) months each. 7.
Accused Nos.1 to 4 are further convicted as per se section 235(2) of
Cr.P.C. for the offences punishable punishable under Sections 341, 342 individually and also r/w 120-B of IPC and each of them is sentenced to suffer Rigorous Imprisonment Impriso nment for 1 (One) year. year.
230
8.
Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offence punishable under punishable under Section 323 individually and also r/w r/w 120120-B B of IPC IPC and and each each of them them is sent senten ence ced d to suff suffer er Rigo Rigoro rous us Imprisonment Imprisonm ent for 1(One) year. 9.
Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P Cr.P.C. for the offence offence punishable punishable under Section 506(II) individually and also r/w 120-B of IPC and each of them is sentenced to suffer Rigorous Imprisonment for 5 (Five) years. 10.
Accused No Nos.1 to 4 are fu further co convicted as pe per se section 235(2) of of
Cr.P.C. for the offence punishable under punishable under Section 201 r/w 120-B of IPC and each of them is sentenced to suffer Rigorous Imprisonment for 3(Three) years and to pay fine of Rs.1,000/Rs.1,000/- (Rs.One Thousand only) each, each, in default default R.I. for 3 (Three) ( Three) months each. 11.
Accused No.4 individually and ac accused Nos.1, 2 and 3 read with
Section Section 120-B of IPC are convicted convicted as per section 235(2) of Cr.P Cr.P.C. for the offence offence punishable punishable under Section 67 of the Information Technology Act, 2000 and this being the first conviction, each of them is sentenced to suffer Rigorous Imprisonment for 5 (Five) years and to pay fine of Rs. 5,000/- (Rs.Five Thousand only) each, each, in default default R.I. for 3 (Three ) months each.
231
12.
All the substantive sentences of imprisonments of all the
accused to run concurrently. concurrently. 13.
As pe per th the Pr Proviso la laid do down un under Se Section 37 376(D) of of IP IPC, th the
entire fine amount, if recovered, shall be paid to the prosecutrix, if she is ready to accept it, after appeal period is over. over. 14.
Accused No Nos.1 to 4 are in in jail, he hence th they are entitled for set off
under Section 428 of Cr.P.C. for the period already undergone in jail for the punishments of other offences except for punishment under Section 376(D) as it impl implie iess that that life life impri imprison sonme ment nt shal shalll mean mean the the impri impriso sonm nment ent for for remainder of their life. 15.
In vi view of of Se Section 28 28(2) of of Cr Cr.P.C., th the se sentence of of de death sh shall be be
subj subjec ectt to conf confir irma mati tion on by the the Hon on'b 'ble le High High Cou ourt rt..
Hence ence,, enti entire re
proceeding be sent to the Hon'ble High Court at the earliest. 16.
As re regards Mu Muddemal Pr Property, it it sh shall be be re required fo for th the ca case
in respect of juvenile-in-conflict-with-law, hence, it may be preserved till the decision of that case and thereafter, it being worthless be destroyed except except mobile mobile of prosec prosecutri utrixx (Art.4) (Art.4),, Memory Memory Cards Cards of P.W.17 .W.17-An -Anura urag g (Muddemal Article Nos.16 and 17) which may be returned to them and except except mobiles mobiles of accused accused (Muddem (Muddemal al Article Article Nos.12 Nos.12,, 13, 24, 28), one unmarked sealed mobile, cash amount of Rs.300/- (Muddemal Article No. 14) and cash of Rs.21/-(Muddemal Article No.15) and pen-drive received
232
from FSL, which may be confiscated to State, State, after appeal period is over. over.
17.
Issuance of certified copy of Judgment is expedited.
18.
Sessions Case No.846/2013 stands disposed of accordingly.
04/04/2014
Dictation st started on on Trans ranscr cript iptio ion n star starte ted d on on Signed on
(Dr.Mrs.Shalini (Dr.Mrs.Shalini S. Phansalkar-Joshi) Principal Judge, Bombay City Civil Court & Sessions Judge, Gr.Bombay Gr.Bombay
:-15/03/2014 on onwards :- 16/0 16/03/ 3/20 2014 14 on onwa ward rdss :- 10/04/2014
