( 1 ) THE two appellants - original accused Nos. 3 and 4 have been convicted by the Additional Sessions Judge, Greater bombay, under (1) Section 366 read with Section 34, (2) Section 376, and ( 3 )Section 376 read with Section 109 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for 3 years 5 years and 5 years respectively on those counts. The substantive sentences are directed to run concurrently.
( 2 ) THE victim Suman (P. W. 1 ) was working as a domestic servant with one madansingh Manmohansingh who used to reside at Union Park, Chembur, Bombay. Her father, Shankar, (P. W. 5 ) was, at the relevant time, staying at Parel where he was working. It is the case of the prosecution that Suman was unmarried but she had delivered a child six moats prior to the date of the incident. It is also the case of the prosecution that she became pregnant on account of forcible intercourse by her father. It may be mentioned that this past history has a little relevance and impact on the incident itself.
( 3 ) ON the day of the incident, viz. 12th June 1974 at 12. 00 noon, her father went to Madansingh's place and sought and obtained permission of the mistress of the house to take Suman out for the day on the ground that there was a Satya Narayan pooja at Parel and that he wanted Suman to attend that function. It is the case of the prosecution that Suman and her father saw a picture at Basant Theatre, Chembur at about 3. 00 p. m. and in the evening they did some shopping in Sindhi Colony at chembur. Thereafter they took dinner in a restaurant at Chembur. At about 9. 00 P. m. they entered Gold Club Compound at chembur. A watchman there accosted them and told them that it was unsafe to enter the Club compound at that time as undesirable charcters were roaming in the compoud. Shankar told him that he knew the road and there was a short cut through the compound and took Suman with him inside the compound. As Shankar wanted: to relieve, he took out his trousers for that purpose. Soon thereafter, the watchman again came and warned him that it was not the place where he should ease himself. Another watchman also came, there. While they were talking, the original 5 accused came there. Two of them stood in front Of Suman and three stood in" front of the two watchmen and Shankar. Shankar and the watchmen took fright and ran away in the direction of the gate. The accused then closed the mouth of Suman by hands and dragged her to some distance and three of them committed rape on suman without her consent and against her will in spite of the fact that accused no. 1 had requested the other accused to let go Suman. It is the case of the prosecution that Shankr went out and saw a motor wagan which was driven by an Army officer and requested him to take him in the compound to find out Suman. The Army officer did so, but they could not find Suman in the compound. Shankar than went to the police Station and narrated the story to a police Constable who accompanied Shankar hi a taxi and went to the club compound and took a round in the compound but Suman was not found. When they returned to the police Station, Suman was already there with Neena Singh, the daughter of her employer. Suman's statemeut was recorded and then she was sent to the hospital for examination. Her clothes, viz. petti-coat, saree and the blouse were attached. The petti-coat and the saree were stated to have been stained with blood. Unfortunately, these articles were lost from the Police Station. The panchnama of the scene of. offence was effence was effected and a pair of chappals which suman stated, to have been dropped by her near the scene of offence was seized. The chappals were also lost from the Police station. The medical evidence of Suman did not reveal any injury either on her private part or on her person. The accused were traced and arrested between 22nd 25 th June 1974. They were sent for medical examination on 26 th June 1974 and on their return from the hospital they were put up for identification and accused Nos. 1, 3 and 4 were identified by Suman. as persons who had taken part in the offence. The two watchmen also took part in the identification. One of the watchmen identified accused no. 1 but as the watchmen had not been examined in this Care identification is not of any assistance to the prosecution. After completing the investigation, a charge-sheet was put up against the accused including Shankar-the father of Suman.
( 4 ) THE Magistrate, after going through the papers, filed by the prosecution, committed the accused to stand their trial before the Sessions Judge, Greater Bombay, under (1) Section 366 read with Section 34, (2) Section 376 and (3) Section 376 read with section 109 of the Indian Penal code. At the commencement of the trial, the Public prosecutor filed an application saying that accused No. 6, i. e. Shankar (P. w. 5), should be discharged. He was then examined as a witness by the prosecution in the trial. The prosecution has not examined the Army Officer whom Shankar had approached when he came out of the compound and requested him to help him in searching his daughter in the compound. The prosecution has also not examined the two Watchmen on the ground that they had left the services of the Gold Club and their present addresses were not available. No reasons were Placed why the Colonel was not examined. In our opinion, both the investigation and the conduct of the case are not satisfactory.
( 5 ) THE prosecution examined as may as all witness but, in our opinion, the material 11 witnesses are the prosecutrix Suman, p. W. I)her father Shankar (P. W. 5), Neena Singh (P. W. 2), Dr. Adama (P. W. 3), and Police constable Dattatraya Lotankar (P. W. 11 )who went in a taxi with Shankar in search of Suman when Shankar approached the police Station.
( 6 ) AFTER the prosecution evidence was over, the accused were examined and their statements were recorded. Their defence was that they have been wrongly and falisely implicated in this case. They were not there at the time of the incident.
( 7 ) THE learned Judge, after considering all this evidence, came to the conclusion that accused Nos. 1, 2 and 5 were not guilty of any offence and he, therefore, acquitted them. He, however, found that the appellants-original accused Nos. 3 and 4 were guilty of the offence under Section 366 read with Section 34 of the Indian Penal code and sentenced them to suffer rigorous imprisonment for 3 years. He convicted accused Nos. 3 and 4 under Section 376 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 5 years he also convicted the appellants - accused nos. 3 and 4 under Section 376 read with section 109 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 5 years. The sentences were directed to run concurrently. It is against this judgment that the present appeal has been filed.
( 8 ) MR. Gumaste, the learned counsel for the appellants, and Mr. B. Y. Deshmukh the learned Public Prosecutor, took us through the evidence and the judgment of the trial Court. After considering the evidence and their arguments, we are convinced that the Additional Sessions Judge, Greater bombay, has committed an error in accepting the testimony of the prosecutrix Suman (P. W. 1 ). It is true that it is not necessary that there should be a corroboration for the evidence of the victim in a rape case and that conviction can be based solely on the uncorroborated testimony of the prosecutrix. In Gurcharan Singh Vis. State of haryana reported in A. I. R. 1972. Supreme court, 2661, the Supreme Court has observed: it is well settled that the prosecutrix cannot be considered as an accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence. As a rule of prudence, however, court normally locks for some corroboration of her testimony so as to satisfy its conscience that she is tellng the truth and that the person accused of rape on her has not been falsely implicated. Here in this case, Suman is alleged to have been raped, at least, by three grown up adult mates against her will by using force. It is her case that she was pinned down to the ground by two persons, while the third person committed rape on her. It is her case that the ground on which she was raped was rough. She was examined by a doctor the same night, a few hours after the incident and yet no injury was found either on her-private part or on her person. The fact that no scratches were edtected on her person clearly indicates that on violence was used against her. Evidence of the doctor clearly militates aguinst her evidence. Then again, the purpose for which she was taken away by her father from her employer's place does not appear to be true. Aftter they left the house of Suman's employer, in stead of going to Staya Narayan Pooja, they stayed at chembur up to 9 p. m. They first went to a picture; they did some shopping and then they had dinner in some restaurant at Chembur. When and for what purpose they entered the compound, is not disclosed either by Suman or by her father. Only thing that Shankar has stated was that there was a short-cut. Whether that short-cut was to suman's place of residence or Parel is not disclosed. If they were to go to Satya Narayan pooja at Parel, they should have gone to Parel in the evening itself. Shankar had stated that a friend of Suman had accompanied them soon after they left her employer's place. The name of this friend was not disclosed, nor had she been examined. Suman does not say that her friend had accompanied her when she left for Parel. Therefore, there is great variance between the evidence of Suman and her father. In our opinion, this is a material discrepancy in the evidence of these two witnesses. We are, therefore, reluctant to place reliance on their evidence.
( 9 ) SO far as the identification parade of the accused by Suman is concerned, she has stated that when the accused came there for the first time, there wos total darkness. She has also stated that when she was raped by the accused there was darkness. She had no occasion to see the faces of the accused in the compound itself- , She stated that she saw accused Nos. 1 and 4 only when she came out of the compound. Then again she had gone to the Police Station early on 26th june 1974 for the purpose of identification. The ident
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ification parade took place in the afternoon after the accused were brought from the hospital after they were medically examined The accused were taken out of the police Station for medical examination. The inmates of the lock-up of the Police Station could also be seen from the verandah of the police Station. Therefore, there was every opportunity that day for Suman to see the accused before she identified them. Another infirmity in the identification parade was that the helper was sent to call for the witnesses from the hall where the identification parade was arranged after the accused had taken their positions in the line. There was, therefore, possibility of the helper informing the witnesses of the positions occupied by the accused when he went to call them. Therefore, in our opinion, the identification is of no importance. In our opinion, the learned Judge has committed an error in holding that any offence has been brought home against the accused. ( 10 ) IN the result, the appeal is allowed and the order of conviction and the sentence passed by the lower Court is set aside and the accused are acquitted. The bail bonds are cancelled.