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COMMITTED ON: 19.09.2013


RECEIVED ON : 21.09.2013
DECIDED ON : 04.04.2014
DURATION : Y M D
- 6 15
IN THE COURT OF PRINCIPAL SESSIONS JUDGE GR. BOMBAY
AT : BOMBAY
(PRESIDED OVER BY DR. MRS. SHALINI S. PHANSALKAR-JOSHI)
EXH. No.269
SESSIONS CASE NO.846 OF 2013
Shri Ujjwal Nikam The State of Maharashtra
Special Public (Through DCB, CID, Unit-III, Mumbai)
Prosecutor C.R.No.83/2013.
(N.M.Joshi Marg Police Station C.R.No.244/2013)
C.C.No.734/PW/2013 ..... COMPLAINANT.
VERSUS
Shri Prakash 1) Vijay Mohan Jadhav @ Nanu
J. Salsingikar with Age : 18 years,
Shri Keshav S. r/o Indira Nagar,
Chavan Next to Agnidoot Building Lane,
Advocates Dhobighat, Satrasta, Mumbai.
Shri Prakash 2) Siraj Rehmat Khan @ Sirju,
J. Salsingikar with Age : 24 years,
Shri Keshav S. r/o. Saibaba Nagar,
Chavan "B" Committee, Dhobighat,
Advocates Satrasta, Mumbai.
Shri Ravindra 3) Mohd. Kasim Mohd Hasim Shaikh @ Bangali
G. Gadgil, Age : 20 years.
Advocate r/o. Zopda No.118,
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opp. Bharat Petrol Pump,
Maulana Azad Road, Kalapani,
Agripada, Mumbai.
Shri Moin A. Khan 4) Mohd. Salim Mohd. Abdul Kaddus Ansari
A. Khan Age : 27 years.
r/o. Vishnu Nagar, Building No.R/2,
3rd floor, Room No.307,
Near Datta Mandir, Mahul Village,
Vashi Naka, Mumbai -74 ...... ACCUSED
-----ooooo------
OFFENCES PUNISHABLE UNDER SECTIONS 120-B,376(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 4
th
April, 2014)
1. On Thursday 22nd August, 2013 Mumbai city along with entire
nation was shocked once again. This time attack on Mumbai was not by any
terrorist or by Bomb Blast but it was attack on Mumbai's collective
conscience as one young intern Photojournalist working in a English
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. This incident has happened after new Criminal Law (Amendment) 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 this Court, these four accused are
facing trial for the offences punishable under newly amended provisions of
Section 376(D) for gang rape, Section 377 for unnatural sex, Section 354(B)
for disrobing, Section 120-B for criminal 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 factual matrix of the prosecution case depicts the 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
Photojournalist in June 2013. Her colleague P.W.17 Anurag who was working
in the same department has floated an idea to prepare article 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 at Bandra Chapel Road. Thereafter he 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 at about 5.00 p.m. after informing P.W.5
Tejal, both P.W.17 Anurag with his Nikon Digital Camera and 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 they reached near the premises of Shakti Mill, they came
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across the dilapidated wall and hence they could not find a place to enter.
At that time, two persons came out of the Mill and they assured them that
there is a way to go inside the Mill. Those two persons waited till the
prosecutrix and P.W.17 Anurag went inside. Once inside, 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 Mohd. Kasim. Accused No.3 Kasim told them that their Seth
had seen them entering the premises and therefore, both P.W.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
mobile, accused No.3 Mohd. Kasim replied that his Seth was a Senior
Railway Officer and she cannot speak with him on mobile. He insisted that
she should accompany them to his Seth. Hence she called her boss Tejal on
her mobile phone but she did not pick up. Accused No.3 Mohd.Kasim then
insisted that they should follow them from the same way from 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.5-Tejal told Anurag and the prosecutrix to apologize to those
persons and leave as early as possible and come to the office. Accordingly,
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.
7. It was around 6.00 p.m. On the way the accused 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.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 the offer. Accused No.3 Mohd.Kasim then removed his belt and
hit Anurag with that belt. He tied Anurags hands behind his back with that
belt. When Anurag tried to wriggle out his hands, accused 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
both natural and unnatural sex. Her photographs were also taken on the
mobile and she was threatened that if she disclosed the incident to anyone,
her photographs will be circulated and published. After their lust was
satisfied, they brought her back to the place where P.W.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 per prosecution case, as on the way prosecutrix was crying,
on inquiry by Anurag, she informed him about the incident. Anurag 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
Hospital. On the way they picked up Tejal and her colleague Yashasvi.
Prosecutrixs mother, who was anxious, was also informed on phone to
come immediately to Jaslok hospital.
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10. In Jaslok Hospital prosecutrix was taken to the Casualty Medical
Ward where P.W.40 Dr. Ms. Nisha Singh who was on duty immediately
informed P.W.39 Dr. Asmita Patki, Gynecologist working therein. The
prosecutrix was complaining of bleeding and pain in her private part. On
examination by Dr. Asmita Patki and by Dr. 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 prosecutrixs mother has also reached there and was mentally
shocked to know about the incident of gang rape on the prosecutrix. P.W.40
Dr. Ms.Nisha Singh simultaneously made a phone call to N.M.Joshi Marg
Police Station. P.W.41-P.S.I. Shamrao Patil who was on phone gave
information to P.W.43 P.I.Shri Arun Mane, the Senior Police Officer. It was
8.40 p.m.
11. P.W.41 P.S.I.Patil and P.W.43 P.I. Mane then immediately rushed
to the Jaslok Hospital. There they met P.W.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, P.W.38 WPSI Mhatre attached to Atrocities Against
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.
12. In the Jaslok Hospital clothes of the prosecutrix were seized
under Panchanama, which was completed at about 1.00 a.m. P.W.41 P.S.I
Shamrao Patil then returned to Police Station, filled up printed form of FIR
along with WPSI Mhatre who signed on it and on 23.8.2013 itself FIR was
sent to the Magistrate. He deposited clothes of the prosecutrix and made
entry in Muddemal Register and further investigation was thereafter taken
over by P.W.43 P.I. Mane.
13. After making arrangement for sending the staff for protecting
the spot of incident, P.W.43 P.I. Mane recorded the statement of P.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 of the secret informants identified the sketch of the juvenile-in-
conflict-with-law and police team was sent for taking his search.
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14. At about 6.30 a.m. along with the team from F.S.L., the dog
squad and P.W.17 Anurag, P.W.-43 P.I. Mane went to 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 portion of the broken glass beer bottle, with which Anurag 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 by professional photographer. Spot Panchanama was accordingly
made in between 6.30. a.m. to 9.20 a.m.
15. On the same day at about 1.30 p.m. as per directions of P.I.
Mane, P.S.I. Shamrao Patil went to Jaslok Hospital along with P.W.15 P.C.
Suhas Kaginkar and collected medical samples of the prosecutrix from
Dr.Asmita Patki. There were totally 9 sealed samples containing the vaginal
swab and anus swab. They were handed over to F.S.L. on the same day along
with forwarding letter.
16. After spot Panchanama, when P.I. Mane and other staff returned
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to the police station, at about 11.00 a.m. Agripada Police Station 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 accused. On that day they were not found. In the evening P.W.13
Sandeep Gurav has produced the photographs of the spot of incident.
17. On the next day on 24.8.2013 Crime Branch Unit-II produced
the accused No.1 Vijay Jadhav in Police Station. Both accused No.1-Vijay and
juvenile-in-conflict-with-law, Chand were remanded to police custody till
30.8.2013. P.W.43 P.I. Mane then recorded the statements of P.W.39 Dr.Asmita
Patki, P.W.5 Tejal, P.W.36 Aakash Swamy and other witnesses on the very 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.
19. On 25.8.2013, investigation of this offence was taken over 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 and Salim Ansari. On the same day he
also collected medical certificate of P.W.-17 Anurag from Jaslok Hospital,
recorded the statements of the prosecutrixs mother, P.W.-15 P.C. Subhash
Kaginkar, P.W.16 API Sunil Rasal, P.W.32 P.I. Sunil Pawar and others.
20. On 25.8.2013 itself P.W.9 A.P.I. Tavade of Crime Branch, Unit-III
arrested accused No.3 Mohd. Kasim whereas P.W.11 P.I. Gulabrao More
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 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 26.8.2013 P.I. Dhanawade sent the Muddemal Articles 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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accused. On 27.8.2013, he sent all the five accused to Nagpada Police
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 letter was given to the prosecutrix calling her 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. On 28.8.2013 P.W.21 ASI Kolambkar collected shoes and two
medical samples of prosecutrix from Jaslok Hospital and carried them to
F.S.L.
23. On 29.8.2013, statements of Nodal Officer Shri Baby John from
Tata Cellular company and two other witnesses, namely P.W.-35 Samsher
Shaikh and P.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
identification parade of the accused. On the same day the belt of the
prosecutrix and the clothes of the accused were sent to C.A. along with
mobiles seized from the accused. P.W.27 Nodal Officer 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
identified all the four accused. A separate test identification 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.
25. On 7.9.2013 a letter was sent to the prosecutrix for recording of
her statement u/s.164(5) of Cr.P.C. but request was made to record her
statement at her house and accordingly, on 12.9.2013 her statement u/s.
164(5) of Cr.P.C. came to be recorded by the Metropolitan Magistrate at her
house. On 11.9.2013 her mobile came to be seized under Panchanama at
her house.
26. On 14.9.2013 the medical certificate of the prosecutrix was
collected from the Jaslok Hospital along with final opinion which was
received on 16.9.2013. The map of the spot of incident was drawn 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 Court, Esplanade, Mumbai. On the very day after compliance of
Section 207 of Cr.P.C., Learned Metropolitan Magistrate committed the case
to this Court, the offences u/s.376(D) and 377 of I.P.C. being exclusively
triable by the Sessions Court. A separate charge-sheet came to be filed
against the juvenile-in-conflict-with-law in Juvenile Justice Board.
28. Accused were produced before me on 23.9.2013 and after
hearing Learned Spl.P.P. and the Learned Counsels for the accused 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
abjured the guilt and claimed to be tried. Their defence is of simplicitor
denial and false implication at the behest of pressure from media and Senior
Police Officers.
29. On these facts of the case, following points arise from my
determination and I record my findings thereon for the reasons stated
below:-
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POINTS FINDINGS
1. Whether the prosecution proves that
accused Nos.1 to 4 herein along with
juvenile-in-conflict-with-law Chand, on
22.8.2013 at about 5.30 p.m. agreed to do or
cause to be done the act of committing
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
Compound and thereby committed an
offence of criminal conspiracy punishable
u/s. 120-B of Indian Penal Code? ..Proved
2. Whether the prosecution further proves
that during the course of same transaction
at the same time and place, accused nos.1
to 4, along with juvenile-in-conflict-with-
law, named above, in pursuance of the
criminal conspiracy hatched by them,
committed rape on the prosecutrix by
committing forcible sexual intercourse and
other sexual acts with her, constituting a
group or acting in furtherance of their
common intention and thereby committed
an offence punishable u/s. 376(D) r/w 120-
B of I.P.C.? ..Proved
3. 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, named above, committed carnal
intercourse by penetrating penis 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, named above, accused No.4
compelled the prosecutrix by showing
pornographic video clipping to her from his
mobile to perform oral sex without her
consent and thereby accused Nos. 1 to 4
committed an offence punishable u/s. 354-
A(iii) r/w 120-B of I.P.C.?
..Proved
5. 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 amongst
them, along with juvenile-in-conflict-with-
law, accused Nos. 1 to 4 used criminal force
to the prosecutrix with intention of
disrobing or compelling her to be naked
and thereby committed an offence
punishable u/s. 354(B) r/w. 120-B of I.P.C.? ..Proved
6. Whether the prosecution further proves
that during the course of same transaction
at the same time and place, accused nos.1
to 4 along with juvenile-in-conflict-with-
law named above, in pursuance of the
criminal conspiracy hatched by 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. Whether the prosecution further proves
that during the course of same transaction
at the same time and place, accused Nos.1
to 4 along with juvenile-in-conflict-with-
law, named above, in pursuance of the
criminal conspiracy hatched hereinabove,
voluntarily caused hurt to the prosecutrix
and her colleague Anurag and also
committed criminal intimidation by giving
threatening to kill them and thereby
committed an offence punishable u/s. 323,
506(II) r/w 120-B of I.P.C. ..Proved
8. 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 amongst
them along with juvenile-in-conflict-with-
law, named above, accused No.4 showed
the pornographic video clippings on his
mobile to the prosecutrix which contained
lascivious material and made video
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
punishable u/s.67 of The Information
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 with juvenile-in-conflict-with-
law, in pursuance of the criminal
conspiracy hatched hereinabove, knowing
that the offence of gang rape, punishable
with life imprisonment has been
committed, caused certain evidence
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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.? ..Proved
10. What order? ..As per final order.

R E A S O N S
30. In support of its case, out of 87 witnesses cited in the charge-
sheet, prosecution has examined in all 44 witnesses, consisting 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 :
P.W.1-Sandeep Sharad Kanvinde (Exh.21) is the Interior Designer
who has prepared the sketch of the spot of incident vide Exh.24.
P.W.2-Bajirao Hari Patil (Exh.25) is the panch witness to the spot
panchanama (Exh.26) under which Muddemal Article No.1-pink
colour odhani, Muddemal Article No.2-piece of black colour cloth and
Muddemal Article No.3-broken piece of glass of beer bottle were
recovered.
P.W.3-Nitin Khodidas Soliya (Exh.27) is the panch witness to the
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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). Her evidence is at Exh.29.
P.W.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 marked
through her evidence as Muddemal Article Nos.5 to 10.
P.W.6 is the Prosexutrix herself. Her testimony is at Exh.38 and
complaint is at Exh.39. Her statement recorded by Magistrate under
section 164(5) of Cr.P.C., proved through her evidence is marked as
Exh.40.
P.W.7-Pravin Amardas Parmar (Exh.41) is the panch witness to the
memorandum panchanama (Exh.42) of accused No.3-Mohd.Kasim
and seizure panchanama (Exh.43) of his mobile-Muddemal Article
No.12 at his instance.
P.W.8-Ravi Nagnath Dandagule (Exh.44) is the mobile vendor who
has, at the instance of accused No.3-Mohd.Kasim, produced the
mobile-Muddemal Article No.12.
P.W.9-Vinod Tukaram Tawde (Exh.45) is the A.P.I. attached to Crime
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Branch, Unit-III who has arrested accused No.3-Mohd.Kasim vide
arrest panchanama (Exh.46) on 25/08/2013 and was also the
Investigating Officer as regards the memorandum and seizure
panchanama of mobile-Muddemal Article No.12 at the instance of
accused No.3-Mohd.Kasim.
P.W.10-Ajay Kumar Laltuprasad Gautam r/o Delhi (Exh.48) is the
panch witness to the personal search panchanama (Exh.49) of
accused No.4-Mohd.Salim in which black mobile of Nokia company,
X-2 model-Muddemal Article No.13, cash amount along with railway
ticket-Muddemal Article No.14 were seized.
P.W.11-Gulabrao Arjun More (Exh.50) is P.I. attached to Crime
Branch, Unit III who has arrested accused No.1-Vijay Jadhav on
24/08/2013 and took his personal search under panchanama (Exh.
58). He has also arrested accused No.4-Mohd.Salim and took his
personal search under panchanama (Exh.49).
P.W.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 by witness Anurag.
P.W.13-Sandeep Maruti Gurav (Exh.58) is the photographer. The
photographs proved by him are at Exh.59/1 to Exh.59/22 and the
Memory card of the said photographs is produced as Muddemal
22
Article No.18.
P.W.14-Vijay Atmaram Desai (Exh.62) is the Police Naik who has
carried Muddemal Articles to C.A.office on 02/09/2013 and on
11/09/2013 along with Forwarding Letters-Exh.63 and Exh.64
respectively.
P.W.15-Suhas Nanasaheb Kaginkar (Exh.65) is the Police Constable
who has carried Muddemal i.e. medical samples of the prosecutrix to
the C.A. office on 23/08/2013 vide forwarding letter Exh.66.
P.W.16-Sunil Shivaji 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.17-Anurag is the colleague of the prosecutrix and an eyewitness
to the incident. His evidence is at Exh.70.
P.W.18-Atish Babaji Kadam (Exh.79) is the panch witness to the
memorandum panchanama (Exh.80) of accused No.4-Salim and
seizure panchanama (Exh.81) of his clothes -Muddemal Article Nos.19
and 20.
P.W.19-Kunal Ramesh Kadam (Exh.82) is the panch witness to the
memorandum panchanama (Exh.83) of accused No.1-Vijay Jadhav
and seizure panchanama (Exh.84) of his clothes-Muddemal Article
Nos.21 to 25.
23
P.W.20-Vaibhav Milind Mohite (Exh.85) is the panch witness to the
memorandum panchanama (Exh.86) of accused No.3-Mohd.Kasim
and seizure panchanama (Exh.87) of his clothes -Muddemal Article
Nos.26 and 27.
P.W.21-Dattatray Arjun 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.22-Dr.Mrs.Suchita Ambajirao Phad (Exh.92) is the Medical
Officer attached to Nagpada Police Hospital who has collected blood
samples of the accused for DNA purpose vide Consent Forms-Exhs.97
to 101.
P.W.23-Mangesh Ramakant Gurav (Exh.94) is the panch witness to
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 (Exh.102) is the Medical Officer
attached to Nagpada Police Hospital who collected the blood sample
of the prosecutrix for DNA purpose.
P.W.25-Dr.Harshal Radhakrishna Thubhe (Exh.105) is Resident
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 (Exh.110) is the Assistant Nodal
Officer from Vodafone company who has produced the call details
records of the phone of prosecutrix, her mother, Anurag and Tejal
vide Exhs.111 to 116.
P.W.27-Changdev Haribhau Godse (Exh.117) is the Nodal Officer
from Vodafone company who has produced the Customer Application
Form of Cell No.9769125965 vide Exh.120 and call detail record of the
same mobile recovered from accused No.3-Mohd.Kasim vide Exh.121.
P.W.28-Nagorao Barkaji Lokhande (Exh.122) is the Executive
Magistrate who has conducted the test identification parade of the
accused at Byculla Jail vide memorandum panchanama (Exh.123) of
test identification parade.
P.W.29-Mr.Baby John (Exh.125) is the Nodal Officer of Tata
Teleservices who has produced call details record vide Exh.129 of
mobile of accused No.4-Mohd.Salim.
P.W.30-Prafull Vishnu Silimkar (Exh.131) is the panch witness to the
memorandum panchanama (Exh.132) of accused No.2-Siraj and
seizure panchanama (Exh.133) of his clothes-Muddemal Article Nos.
29 and 30.
P.W.31-Rajesh Sampatrao Gaikwad (Exh.134) is the Nodal Officer in
25
Reliance Communication Ltd. who has produced the call detail record
(Exh.137) of the mobile used by accused Chand, juvenile-in-conflict-
with-law.
P.W.32-Sunil Narayan Pawar (Exh.142) is the A.P.I. attached to
Agripada Police Station who has arrested juvenile-in-conflict-with-
law, Chand.
P.W.33-Nandakumar Pandurang 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) is the Nodal Officer in
Aircel Company who has produced call detail record (Exh.150) of
mobile of Mustafa Khalil Shaikh.
P.W.35-Samsher Sharif Shaikh (Exh.154) has given his Sim Card to
juvenile-in-conflict-with-law.
P.W.36-Aakash Ganesh Swamy (Exh.156) is the star witness for
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.37- Deepak Rajaram Chavan (Exh.157) is P.I. attached to DCB
CID Unit-III, who has in pursuance of the respective memorandum
and seizure panchanamas, recovered the clothes of accused No.4-
26
Mohd.Salim, accused No.2-Siraj, accused No.1-Vijay Jadhav and
accused No.3-Mohd.Kasim.
P.W.38-Priyanka Suresh Mhatre (Exh.160) is the WPSI who has
recorded the complaint(Exh.39) of prosecutrix and filled up the
proforma (Exh.39-A).
P.W.39-Dr.Asmita Pundlikrao 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) is Emergency Medical
Officer in Jaslok Hospital who has examined P.W.17-Anurag and issued
certificate (Exh.167).
P.W.41-Shamrao Tukaram Patil (Exh.169) is the P.S.I. attached to
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 Singh and Preeti Kadam.
P.W.42-Shrikant Hanumant Lade (Exh.174) is DNA Expert from F.S.L.
Kalina. 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) 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) Senior P.I. attached to
DCB CID, Crime Branch, Unit-III is the Investigating Officer in this
case.
31. After the prosecution has closed its case, I have recorded the
statements of accused under Section 313 of Cr.P.C. in which the accused
have reiterated their defence of false implication and tampering of DNA
samples.
32. To substantiate their defence that their photographs were
shown to the prosecutrix and P.W.17-Anurag before the test identification
parades, accused have examined two witnesses. D.W.1 is Dayanand
Shreenivas Kamat (Exh.220), Special Correspondent from DNA newspaper.
Through his evidence, defence Counsels have exhibited the hard copy of
DNA, Mumbai Edition dtd.04/09/2013 vide Exh.221.
33. They have also led the evidence of D.W.2-Divyesh Anil 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 are appearing.
28
34. The defence Counsels have also examined one child witness-
Ganesh Anand Jalgaonkar vide Exh.219 whose name was cited 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:-
35. At the outset itself it has to be observed that this case stands on
the most solid foundation of the evidence of prosecutrix. Her sole
testimony is of such a sterling quality, giving vivid and truthful account of
entire incident, that it clinches the fate of the case. It is alone sufficient to
prove the guilt of the accused on all the counts, 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 prosecutrix in this case is a petite young girl hardly of 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 Magazine of Essar Group as Intern Photojournalist. P.W.17-
Anurag was also working in the same Magazine as Photojournalist since
2013. P.W.5-Tejal was Head of their Department. The job profile of
29
prosecutrix and P.W.17-Anurag was to click the photographs as per the
articles given by the Edit Department. At the same time, they were also
initiating their own ideas for clicking the photographs. Job profile of P.W.5-
Tejal 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 the evidence of prosecutrix and P.W.17-Anurag that, he has
floated the idea of clicking the photographs of dilapidated structures and
old articles in Mumbai city. It is evidence of P.W.5-Tejal also that as 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, she found this idea of Anurag extremely interesting, moreover
something like that was not recorded in their Magazine earlier. Hence, she
approved his idea.
38. It is the consistent evidence of these three witnesses that after
approval from her, P.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 at Bandra Chapel Road. Thereafter he thought of doing
photo-shoot of old and defunct premises of Shakti Mill which is situate near
30
Mahalaxmi Railway Station. As per evidence of P.W.5-Tejal and prosecutrix,
as the idea of artistically capturing the old and heritage structures to
preserve them as memory for future generations was quite engaging,
prosecutrix offered to accompany P.W.17-Anurag in photo-shoot of some of
the old structures and old articles. Alongwith P.W.17-Anurag, 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 OF SEXUAL ASSAULT.
39. As per evidence of P.W.17-Anurag, he has his own Nikon digital
camera with which he used to do the photo-shoot whereas prosecutrix was
having her own Apple I-phone 4S. It is deposed by him that, on 22/08/2013
at about 3.00 p.m., he told P.W.5-Tejal that he would be going to Shakti Mill
premises in the evening for taking the photographs, along with the
prosecutrix. She gave the permission and then he himself and prosecutrix
left the office at about 5.00 p.m. and went walking towards Mahalaxmi
Railway Station, which was hardly at a distance of 5-7 minutes from their
office. It is deposed by him and also by prosecutrix that from railway
platform, they came on the railway track and then started proceeding
towards Lower Parel Railway Station from the rear side of Shakti Mill
premises. When they reached upto the compound wall of Shakti 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 deposed both by the prosecutrix and Anurag that at that
time, they met two persons who came out of the premises of Shakti Mill and
those two persons told them that 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 two persons waited till they
went inside.
41. The prosecutrix has in her complaint, lodged immediately after
the incident and in her evidence before the Court given description of those
two persons to whom they met at the entrance. According to her, one
person had a mustache and was having wheatish complexion. His age was
25 to 30 years. He was wearing white 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.
42. She has given the description of the second person in her
complaint and also in her evidence before the Court that, he was of the age
32
of about 20 to 25 years. He was slim, dark in complexion and was wearing
black and white checkered shirt. In test identification parade and also in
evidence before the Court, she has identified the said person as accused No.
1-Vijay Jadhav.
43. The description of these two persons given by prosecutrix is
completely tallying with the description given by P.W.17-Anurag, who has
also corroborated the prosecutrix by stating that one of the said persons was
approximately of the age of 30 years, having broad mustache. His
complexion was wheatish and he was wearing white shirt with black checks
thereon and black pant. His built was average. He has identified 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 dark colour pant and of the age of 20
to 22 years. He has identified the said person, both in test identification
parade and also in evidence before the Court as accused No.1-Vijay Jadhav.
45. As per further evidence of prosecutrix, once she and 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 I-
phone 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 of his camera.
In evidence before the Court, when the mobile-Muddemal Article No.4
seized from her possession during the course of investigation was shown to
her, she has stated that the photographs of Shakti Mill start from Sr.No.1430
to Sr.No.1567. The first photograph at Sr.No.1430 is of entry point in Shakti
Mill premises which fact is verified by the defence Counsels and this Court
also.
46. This part of her evidence stands completely corroborated with
the evidence of P.W.17-Anurag also, who has taken the photographs with his
Nikon digital camera. He has produced on record two Memory cards-
Muddemal 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
Sandeep Dabhilkar. Memory cards contain the photographs of Ambassador
car and Shakti Mill premises. Defence Counsels have also after watching
34
memory cards confirmed that those two memory cards contain the
photographs of Shakti Mill, clicked on that particular day. P.W.17-Anurag is
cross examined on this point also. The only aspect 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
reason to disbelieve the same. It is pertinent to note that even in the
photographs of Ambassador car the date of year 2012 is appearing though
the said photographs were also clicked in the year 2013. The very fact that
he has joined Time Out Magazine in June 2013 and thereafter, he has
initiated the idea of an 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 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 to them, they decided to come out
of Shakti Mill premises and proceed on that way. It was around 6.15 p.m. As
per the evidence of P.W.17-Anurag when they entered into Shakti 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
photo-shoot. This fact is again corroborated from the timing on
photographs in her mobile and his camera.
48. However, while they were about to come out of the premises of
Shakti Mill, according to the evidence of both these witnesses, the two
persons to whom they met when they were entering into Shakti Mill
premises i.e. accused No.1-Vijay Jadhav and accused No.4-Mohd.Salim
came there along with one third person.
49. The prosecutrix has given the description of the third person in
her complaint lodged immediately and also in her evidence before the
Court, which perfectly tallies with the description given by Anurag. As per
prosecutrix, he was a fat guy wearing pink shirt and blue pant. He was dark
in complexion and his age was approximately 25 to 30 years. According to
P.W.17-Anurag also, the third person was of strong built. His face was round.
His complexion was dark. His age was 27 to 28 years and his height was 5.6
to 5.7 feet. He was wearing pink colour shirt and blue colour jeans pant.
Both, prosecutrix and Anurag have identified this third person in test
identification parade and also in evidence before the Court as accused No.3-
36
Mohd.Kasim.
50. It is further evidence of prosecutrix and P.W.17-Anurag that all
these three accused i.e. accused No.1-Vijay Jadhav, accused No.3-
Mohd.Kasim and accused No.4-Mohd.Salim accosted her and Anurag.
Accused No.3-Mohd.Kasim said in Hindi that, hamare seth ne aapko dekha
hai aur aapko unke pass jana hai, Prosecutrix asked him who was his seth?
(seth kaun hai?). Accused No.3-Mohd.Kasim said that he was calling his
superior officer as 'seth'. Prosecutrix asked him whether she can talk with
his seth on mobile. However, accused No.3-Mohd.Kasim said that as his
seth was senior Railway Officer, she cannot talk with him on phone and they
will have to go to meet him. As per evidence of prosecutrix, accused No.3-
Mohd.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
insisted that they will have to go to meet his seth. It is the evidence 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 which they came. P.W.17-Anurag has also deposed that he and
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, that
third person i.e. accused No.3 said that it was a longer route and they will
take them by shorter road. In answer to question put up by Spl.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 per evidence of proseuctrix, she and Anurag trusted accused
No.3 Kasim and started walking with them by the same route through which
they had come inside. By that time, prosecutrix received the phone call of
P.W.5-Tejal and she told Tejal on phone that the railway persons had
accosted them. As per evidence of prosecutrix, P.W.5-Tejal told her to
apologize to those railway persons and leave as early as possible and come
to the office. It is deposed by P.W.17-Anurag also that when they were
proceeding along with those three accused persons, prosecutrix received
the phone call of P.W.5-Tejal madam and prosecutrix told her that they had
met some railway persons and they had asked them to meet their seth,
hence they were going to meet their seth. Prosecutrix also, after answering
the call, told him that Tejal madam has called them to the office
38
immediately.
54. This part of the evidence of prosecutrix and P.W.17-Anurag
stands completely corroborated from the evidence of P.W.5-Tejal who has
stated that on that day, after P.W.17-Anurag and prosecutrix left for Shakti
Mill premises at about 5.00 p.m., she continued to remain in office.
Thereafter at about 6.15 p.m., she got a call from prosecutrix. As she was
busy, she did not pick up it. However, after some time, she called
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 who told them that they cannot do the photo-shoot. Prosecutrix
also told her that those persons were insisting that both of them should go
to their boss. Prosecutrix asked her, what she should do and according to
P.W.5 Tejal, she told prosecutrix that if it is a railway property and those
people are having any objection for photo-shoot, then leave that place and
come to the office, after apologizing them. Prosecutrix said O.K. and cut the
phone. As per her further evidence, thereafter she was waiting for her call
but prosecutrix did not call. Therefore, she sent her SMS of please call',
however, prosecutrix neither called nor replied the SMS.
55. At this stage itself, it may be stated that this part of evidence
39
prosecutrix, P.W.5-Tejal and P.W.17-Anurag again get complete
corroboration from the call detail records produced on record, of mobile
numbers of prosecutrix, P.W.5-Tejal and P.W.17-Anurag. It is brought on
record through the evidence of these three witnesses that mobile number of
Tejal is 9819783639, mobile number of Anurag is 9673980240 whereas
mobile number of prosecutrix is 9930860344. The call detail records of
mobile number of P.W.5-Tejal and prosecutrix produced on record at Exhs.
116 and 113 through the evidence of P.W.26-Vikas Phulkar, Nodal 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 of 39 seconds and there is also a SMS from P.W.5-
Tejal's phone No.9819783639 to prosecutrix's mobile No.9930860344 at
18.29 hrs.
56. Now coming back to the evidence of prosecutrix as regards
actual incident, it is her case that after phone call with P.W.5-Tejal, she again
requested the said persons i.e. accused No.1-Vijay, accused No.3-
Mohd.Kasim and accused 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 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 meet their seth. Hence they kept on walking with those three
persons.
57. As per their evidence, after they covered some distance, accused
No.3-Mohd.Kasim stopped them and said to Anurag that, idhar kuch din
pahele murder hua tha, woh murder tumne kiya 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 anything. At that time, as per the evidence of prosecutrix, the fat
person i.e. accused No.3-Mohd.Kasim looked back and called two persons.
P.W.17-Anurag has also deposed that the third person i.e. accused No.3-
Mohd.Kasim called out to someone and said, are idhar aao shikar idhar
hai. It is deposed by both of them that then two more persons came 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 were five persons.
58. Both, prosecutrix and P.W.17-Anurag had 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 the Court. According to prosecutrix, out of those two 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.17-Anurag has stated that fourth
person was of the age 22-23 years. He was wearing a shirt of maroon colour
and blue jeans. Both of them have identified the said fourth person in the
test identification parade conducted in Children's Home, he being juvenile-
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, prosecutrix and P.W.17-Anurag have given the 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. According to prosecutrix, said person was slim, having wheatish
complexion. His age was about 20 to 25 years and he was wearing lavender
colour shirt and gray colour pant. Whereas P.W.17-Anurag has also stated
that the fifth person was of slim built. His age was 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 further evidence of P.W.17-Anurag that after seeing those
five persons, both of them were totally frightened. They were saying to
those accused that they will meet their seth subsequently. While saying so,
they were about to leave but, the third person out of them i.e. accused No.3-
Mohd.Kasim threatened them to keep quiet. He took out the belt and
assaulted Anurag with that belt on his left arm. He then tied his hands
behind with that belt. Prosecutrix has also stated that 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.3-
Mohd.Kasim then tied Anurag's hands behind his back with that belt. They
were pleading with them to let them go but they did not allow.

61. It is deposed by P.W.17-Anurag also that seeing that his 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, accused No.3-Mohd.Kasim did not listen to her.
As per evidence of prosecutrix, when the fat person i.e. accused No.3-
Mohd.Kasim noticed that Anurag's hands were coming out of the belt with
43
which they were tied, he got very angry and told her to remove her belt and
then with her belt, he again tied Anurag's hands. P.W.17-Anurag 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 and made him to sit there. At this stage, it may be stated 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 before the Court. P.W.17-Anurag 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 further deposed by prosecutrix that the fat person i.e.
accused No.3-Mohd.Kasim and the person with mustache i.e. accused No.4-
Mohd.Salim then took her to one dilapidated room. While entering into that
room, she got the call of her mother on her mobile. The fat person 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 they said to her to tell her mother on phone, sab theek hai.
Accordingly she said to her mother on phone in Hindi, sab theek hai and
saying so, she disconnected the phone. It is her further evidence that
normally she talks with her mother in English. However, 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.3-Mohd.Kasim
and accused No.4-Mohd.Salim told her to say the same thing again i.e. sab
theek hai. Hence, she again said to her mother in Hindi, sab theek hai.
63. This evidence of the prosecutrix gets full support from the
evidence of her mother P.W.4 who has deposed that her mobile number is
9819603386. It is registered in her own name. The original Customer
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. Hence, she along
with her family members including her daughter i.e. prosecutrix had
planned to go for dinner. Therefore, she 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 again. This time, prosecutrix picked up
the phone and spoke in a very hurried manner in Hindi language saying,
Maa, main theek hoon. She was quite surprised as her daughter talked in
Hindi and not in usual English language. As per her evidence, even if her
daughter used to be busy, she 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 in work and, therefore when from her side the phone was
disconnected after saying Maa main theek hoon, she called her again. At
45
that time also, her daughter spoke in Hindi itself, Maa, main Mahalaxmi
Station hoon, main theek 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.113 produced on record through the evidence of P.W.26-Vikas
Phulkar, Nodal Officer of Vodafone company. As per the said call detail
records, two calls were made from mobile No.9819603386 of P.W.4-
prosecutrix's mother to mobile No.9930860344 of prosecutrix at 18.41 hrs.
of duration of 12 second and 18 seconds respectively.
65. Reverting to the actual incident, it is deposed by the prosecutrix
that after she told her mother, as dictated by accused No.3-Mohd.Kasim and
accused No.4-Mohd.Salim, accused No.3-Mohd.Kasim snatched the mobile
from her hand and switched it off. Then he forcibly took her 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 and cream colour pant which she was wearing
at the time of incident and which she has identified in the Court as
Muddemal Article Nos.5 and 6. She was also required to remove her shoes.
46
Then accused No.3-Mohd.Kasim removed her bra and underwear. He
forced her to lie down on the cement platform which was in that room.
Then he removed all his clothes and became completely nude. He forcibly
came on her body and raped her. On the question put up by 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 asked him to stop as it was hurting a lot. But, he did not. As per
evidence of P.W.17-Anurag also, he has heard the scream of 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, he will kill her and Anurag and bury them there. As per
her evidence, he has wiped his penis with her socks. It is her evidence that
she was bleeding very badly from vagina but he did not allow her to go.
67. It is her further evidence that thereafter the person having
mustache, whom she has identified as accused No.4-Mohd.Salim, came
there. He also removed all his clothes and became completely nude. He
47
showed her one pornographic clip on his mobile and told her to do as
shown in that pornographic clip. He inserted his penis in her mouth. She
pushed him away. Then he punched her on her stomach and raped her by
inserting his penis in her vagina. He ejaculated. Then he forced her to sit
on her knees and inserted his penis in her anus and ejaculated. After he
finished, he put on his clothes and then the third person who was wearing
maroon shirt (juvenile-in-conflict-with-law) came there. He also forcibly
raped her by inserting his penis in her vagina.
68. As per her evidence after he left, the next person wearing
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 penis in her mouth. She pushed him away
because she was feeling like vomiting. Then he raped her by inserting his
penis into her vagina. After he put on his clothes, next person, wearing
checkered shirt, to whom she has identified as accused No.1-Vijay came
there. He forced his penis in her hands and asked her to shake. She was
compelled to do so out of fear. Then he pushed her on the cement block
and raped her by inserting his penis in her vagina.
69. The trauma, torture and agony of the prosecutrix, however, was
48
not over even thereafter. Even after all the five accused persons committed
forcible sexual intercourse with her, as per her evidence once again, fat
fellow i.e. accused No.3-Mohd.Kasim came back while she started wearing
her clothes. Though 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. He told her that she cannot go anywhere and further
said, aapko malum nahi main kitna harami 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 his penis in her mouth. She
pushed him away. Therefore, he got very angry. He said, main aapko
dikhata hoon. Then he punched her on her back and forced her to sit on
her knees and inserted his penis in her anus. She was 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, he
asked her to put on her clothes and also to dust off her clothes so that it
does not seem like anything has happened. Then the mustached guy i.e.
accused No.4-Mohd.Salim came inside and took her photographs on mobile
and at that time the person wearing maroon T-shirt-accused Chand,
juvenile-in-conflict-with-law put the light of torch on her face.
49
71. It is her evidence that, after taking the photographs, mustached
guy i.e. accused No.4-Mohd.Salim threatened her and Anurag not to
disclose to anyone. The mustached guy and the fat guy i.e. accused 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 bags to see everything is there. Then they took both of them to the
entrance from where they had come. They waited to see that no goods train
were there. When there were no trains, they told them to go towards
Mahalaxmi Railway Station and they went towards Lower Parel Railway
Station.
72. This part of the evidence of prosecutrix again gets total
corroboration from the evidence of P.W.17-Anurag who has deposed that
after the third person i.e. accused No.3-Kasim and the first person i.e.
accused No.4-Mohd.Salim took prosecutrix inside behind the wall, the
second person i.e. accused No.1-Vijay, fourth person i.e. juvenile-in-
conflict-with-law and fifth person i.e. accused No.2-Siraj continued to sit
with him. He also started shouting bachao bachao, 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 per his further evidence, then the first person who was with
mustache i.e. accused No.4-Mohd.Salim came outside, from behind the wall
and at that time, he heard the scream of prosecutrix. Therefore, he asked
accused No.4-Mohd Salim what happened. He said to him that inquiry was
going on. Then the first person i.e. accused No.4-Mohd. Salim, went behind
the wall and thereafter the third person i.e. accused No.3-Mohd.Kasim came
outside from behind the wall. He said to Anurag that, woh bhi kuch nahi
bol rahi, tum bhi kuch nahi bata rahe ho, tum donoka kuch karna padega..
74. Then the third person i.e. accused No.3-Mohd.Kasim sent the
fourth person i.e. juvenile accused in conflict with law and said, "ab tu
andar ja ke inquiry kara ke 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. Then fourth person i.e. juvenile accused in conflict with
law came out and said that, ladki barabar bol nahi rahi hai. Then the third
person i.e. accused No.3-Mohd.Kasim said to fifth person i.e. accused No.2-
Siraj to go inside. The second person i.e. accused No.1-Vijay 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. Then the third person i.e. accused No.3-
Mohd Kasim said that he will again go inside and make inquiry. As per
evidence of P.W.17-Anurag, thereupon all those persons started laughing.
Out of them, one person said, bhai jaldi karo der ho rahi hai. Then the
third person i.e. accused No.3-Mohd.Kasim went inside. After some time,
third and fifth person came outside along with the prosecutrix.
75. Thus the entire sequence of the events and involvement of the
accused, as stated by prosecutrix stands completely corroborated from the
evidence of P.W.17-Anurag. As per his evidence also, when prosecutrix came
out, she was very frightened and was crying. Seeing him, she immediately
held his hand tightly. He asked her what has happened but she did not say
anything, she was just crying. Thereupon the third person i.e. accused No.3-
Mohd.Kasim said to them not to create noise and they were allowing them
to go. Then all the five persons brought him and prosecutrix upto the
railway track from where they had entered into Shakti Mill compound.
Before they enter on the railway track, accused No.3-Mohd.Kasim asked to
confirm whether there was no one outside. Then the second and fourth
person i.e. accused No.1-Vijay and juvenile-in-conflict-with-law went ahead
and saw that no one else was there. Then they brought them upto the
railway track and told them to proceed towards Mahalaxmi Railway Station
52
and those five persons went towards another direction of Lower Parel.
76. As per further evidence of P.W.17-Anurag, it was around 7.15
p.m. As prosecutrix was still crying, he asked her what has happened. She
looked behind to see whether there was anybody and then she told him that
those five persons have raped her one by one and she was bleeding. She
told him that it was paining a lot and she requested him to take her to the
hospital. According to P.W.17-Anurag, he was mentally 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 Railway Station. They took a cab and started
proceeding towards Jaslok Hospital. On the way, they collected P.W.5-Tejal
madam and one more colleague Yashasvi in the cab. In the taxi also
prosecutrix was crying. Hence, Tejal madam asked her what has happened.
Prosecutrix told her that five persons have committed rape on her. By that
time, there was a phone call from prosecutrix's mother and prosecutrix and
Tejal madam told prosecutrix's mother to come immediately to Jaslok
Hospital.
77. As per the evidence of prosecutrix also, on the way 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.5-Tejal and told her
to come to Mahalaxmi Railway Station. After they came at Mahalaxmi
Railway Station, as she was undergoing lot of pain and bleeding, she told
Anurag to take a cab to Jaslok Hospital. On the way, they picked up P.W.5-
Tejal and Yashasvi. In the cab, P.W.5-Tejal asked her what has happened and
she told her that all the five persons have raped her. She also called her
mother on phone and told her to come to Jaslok Hospital.
78. This part of the evidence of prosecutrix and P.W.17-Anurag is
fortified through the evidence of P.W.5-Tejal who has 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. Thereafter at about 7.20 to 7.25 p.m, she got a call
from P.W.17-Anurag. Anurag asked her where she was and she replied that
she was in office. Anurag then told her on phone to immediately rush to
Mahalaxmi Railway 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 immediately near Mahalaxmi Railway Station. Saying so, he
disconnected the phone. Therefore she herself and her friend-Yashasvi
started walking towards Mahalaxmi Railway Station. On the way, they met
Anurag and prosecutrix. They were in taxi. She herself and Yashasvi sat in
54
the said taxi. Prosecutrix was sitting on the back seat. She was extremely
frightened and crying. She asked the prosecutrix what has happened and
prosecutrix told that she was raped by five men in the Mill 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 to tell her what has happened. Hence, she comforted her
and told her to calm down. She also told that she does not have to talk
about it immediately. As per evidence of P.W.5-Tejal also, while they were in
taxi, mother of the prosecutrix called her on mobile. Prosecutrix picked up
the phone but could not talk much. Hence, she spoke with her mom and
told her, please come to Jaslok 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 this part of the evidence of prosecutrix, 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 7.30 p.m., she again called her daughter-prosecutrix on phone.
Prosecutrix picked up the phone and was crying. She said to her on phone,
mummy, I am going to Jaslok hospital. As per her evidence, she asked her
55
daughter what had happened but she kept on crying. Hence, she asked her,
baby who is with you? Give phone to that 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. As per the evidence of P.W.4, she was
frightened and started crying. She called then on phone Agnel uncle. 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
mobile from prosecutrix saying, mummy come to Jaslok hospital.
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-Tejal and P.W.17-Anurag. The call
detail records, Exh.114 and Exh.116 produced and proved through the
evidence of P.W.26-Vikas Phulkar, Nodal Officer of Vodafone company go to
prove that the first call was made by P.W.16-Anurag from his mobile No.
9673980240 to P.W.5-Tejal on her mobile No.9819783639 at about 19.22 hrs
of 32 seconds duration. Whereas second phone call was made by P.W.5-Tejal
on her mobile No.9819783639 to P.W.17-Anurag on his mobile No.
56
9673980240 at 19.23 hrs. of 90 seconds duration. The third phone was made
by P.W.17-Anurag to P.W.5-Tejal at 19.28 hrs. of 17 seconds duration.
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 Phulkar, Nodal Officer of 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 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
Jaslok hospital at about 7.45 p.m. As per the evidence of P.W.5-Tejal,
prosecutrix was in lot of pain and, therefore she could not walk on her own.
Hence she held her hand and took her to the casualty ward. There she met
the doctor and told her to examine her and start the treatment. Accordingly
doctor examined her and started the treatment. She waited there for a while
and then prosecutrix's mother came there.
57
84. Prosecutrix has also deposed that when they reached at Jaslok
hospital, she told the doctor everything that had happened. Thereafter the
police came and recorded her complaint vide Exh.39. It is her evidence that
she has given the contents of complaint in English and Hindi language.
Police have recorded it in Marathi. They explained it to her in Hindi and
finding the contents correct, she has signed on it. She has further stated
that as she was physically in pain and also under mental trauma, she could
not give all the facts at that time. Hence, her supplementary statement was
recorded on 23/08/2013 by another female police officer.
85. Again this part of the evidence of prosecutrix gets support from
the evidence of P.W.17-Anurag who has stated that when they reached in
Jaslok hospital, he and Tejal madam took the prosecutrix in casualty ward.
Then Tejal madam took prosecutrix inside the casualty room. After some
time prosecutrix's mother and 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 happened. Prosecutrix's mother then came out 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 who was with her but also from the evidence of
P.W.5-Tejal and P.W.4-her mother. It stands further 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 No.4-Mohd.Salim. Her instant reaction to the said 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 matter of fact in this case what more evidence is required in
addition to the testimony of prosecutrix ? As per the settled law also, the
sole testimony of prosecutrix is sufficient to prove the guilt of the accused in
sexual offences. Insisting on corroboration to her testimony is adding insult
to her injury. In the words of Apex Court in landmark decision of State of
Punjab V Gurmit Singh, AIR 1996 S.C.1393 "why her evidence should be
59
viewed with suspicion or disbelieved, as no woman will make such
accusation casting aspersion on her character and thereby allowing her to
be stigmatized".
88. Here prosecutrix has absolutely no reason to do so. Her entire
testimony has a ring of truthfulness, a colour of consistency and a sense of
straightforwardness. Her honesty and her truthfulness is exuding
throughout each and every word spoken by her. The 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 Counsels have also not been successful in any 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 like a rock, there is no need at all to look
for corroborative evidence in any way to hold the prosecution 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 addition to that there is also ample evidence on record
60
brought by the prosecution which lends support and further corroboration
to her case, if at all any such corroboration is required.
MEDICAL EVIDENCE:-
91. The first, foremost and a very strong corroboration is coming to
her evidence from the medical evidence which is completely in tune with
and goes hand in hand on all the aspects with the evidence of the
prosecutrix. As stated above, after the prosecutrix along with P.W.17- Anurag
and P.W. 5 Tejal reached in the hospital, she was taken to the Casualty Ward.
There P.W.40 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. one young girl of 22 years came along with a male colleague 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.
92. It is deposed by her that as the prosecutrix was suffering from
pain, she started her on the pain killer and called P.W.-39 Dr. Asmita Patki
61
who was on call in Gynecology Department and told her what said girl,
namely, the prosecutrix had informed her. P.W. 39 Dr. Asmita Patki told
P.W.-40 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. There were injuries on her private
part and on her back also, like abrasion at L1 and L2. While she was
examining her, P.W.-39 Dr. Asmita Patki arrived and she continued further
examination along with Dr. Poornima Satoskar.
93. Here the vital evidence of P.W.39 Dr.Asmita Patki comes 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 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 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
told her that she has been sexually assaulted by five unknown men at Shakti
Mill near Mahalaxmi railway station by natural and unnatural way.
62
94. According to P.W.39 Dr. Asmita Patki, prosecutrix was frightened
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 her private part. Then she called up her 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 points. On the back at the level of L1, L2 spine, there was abrasion
which was surrounded by bleeding points and one more abrasion was
found on left buttock.
95. As per her further evidence, she and Dr.Satoskar took consent of
the prosecutrix for internal examination and for collection of samples.
Then she requested the prosecutrix to undress. On internal examination
conducted under local anesthesia, she found minor abrasion on labia
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 have a look at the serious nature of the injuries 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 of the prosecutrix as conducted by P.W.39 Asmita Patki and
reflected in the certificate(Exh.163) prepared simultaneously, as follows:-
Type of Injuries Description of Injuries
External Injuries 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
diameter abrasion present surrounded by multiple
graze abrasions with bleeding points.
4) Waist - Graze abrasion present just below waistline
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 - minor abrasion present.
4) Hymen - ruptured, edges torn
Fresh tear at 6' o clock position with oozing fresh
blood.
Suggestive of penetrating injury and forcible entry.
Per vaginal examination was not possible due to severe
pain.
One finger examination attempted but could not be
done as it was painful.
5) Anus - Small abrasions at 6 and 7' o clock position,
linear ~ 3 x 6 mm in dimension, reddish in colour.
Examination
under anesthesia
1) Small abrasions at 6 and 7' o clock position at the
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.
4) Vaginal mucosal abrasion.
5) Vaginal mucosal fresh laceration tear extending
from
4-7' clock, covered with clot.
6) Vaginal mucosal fresh laceration from 11-1' o clock
present, covered with clot.
7) Denudation of vaginal mucosa circumferentially
present forming whitish membrane.
97. Needless to say that presence of all these injuries, both 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 accused persons in natural and unnatural way. Hence, 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 Patki that rupture of hymen is possible if the sexual intercourse
is with the virgin girl and there are chances of heavy bleeding in that case
also, totally falls on the ground. Defence has attempted to suggest that it
was P.W.17 Anurag who might have committed sexual intercourse with the
prosecutrix in Shakti Mill premises and that may be the cause of rupture of
hymen and the bleeding. As a matter of fact on the basis of testimony of the
65
prosecutrix and P.W. 17-Anurag, this defence 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 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 evidence of the prosecutrix and the medical evidence
which is brought on record through the evidence of P.W.39 Dr.Asmita Patki
proving that she was ravished sexually by five persons.
99. As stated above, the sort of injuries which prosecutrix has
sustained to her private parts both to vagina and anus are hardly possible in
the incident of love making.
100. Even otherwise also, if it was love making by P.W.17 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 is clear that just for the sake of it P.W.39 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 of P.W.39 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 tear at 6 o'clock position in hymen indicates forceful penetrative
sexual intercourse. There is also final opinion Exh.167 on record 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 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 any injury noticed on her private part. Defence Counsels are
forgetting the essential scientific knowledge or basic information that in
67
bleeding at the time of menstrual cycle there are no injuries to private part.
In cross-examination, P.W.40 Dr.Nisha Singh has also denied the suggestion
that bleeding from prosecutrix's private part was of menses. P.W.39
Dr.Asmita Patki has also denied the suggestion that during the menses white
membrane discharge can also be possible. She has further denied the
suggestion that during the menses, labia minora becomes tender.
103. A suggestion is then put to P.W.39 Dr.Asmita Patki that in 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.
The Court has to be realistic when no dent is made in evidence of
prosecutrix and other witnesses. Moreover, the medical evidence is so
strong that none of these contentions even hold any ground. It is also not
that the clothes were not having any stains of the bleeding or of white
discharge. Her knicker was stained with blood and smeared with white
discharge.
68
EVIDENCE RELATING TO SEIZURE PANCHANAMA OF CLOTHES OF
PROSECUTRIX:
104. The recovery Panchanama of the clothes of the 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 T-shirt, cream colour pant,
cream colour belt, brown colour shoes and pink and white 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 evidence of P.W.39 Dr. Asmita Patki that at the time of
carrying out internal examination of the prosecutrix she requested
prosecutrix to undress and kept her clothes in the plastic bag which was
sealed and kept next to the patient. It is brought in evidence of P.W.41 PSI
Shamrao Patil that, after recording of the complaint of the prosecutrix and
registering the offence, he has told P.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 Panchas and in their presence he seized those clothes under
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Panchanama. It was prepared there itself as per Exh.36. According 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 Nos. 5 to
10.
106. P.W.5 Tejal is one of the Panch to the seizure Panchanama of the
clothes of the prosecutrix. As deposed by her, she was there in the hospital
till 1.00 O clock in the night. She has stated that at about 9.00 p.m. 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 Panchas to the seizure Panchanama of the
clothes of the prosecutrix. Police then asked the Doctor to know whether he
can have the clothes of the prosecutrix which she was wearing at the time of
incident. Dr.Asmita Patki asked them to wait outside and then after
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 further deposed by her that she saw that cream colour 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 soil stains on it. As per her evidence these 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
disbelieve her and otherwise also she being the natural witness, her
presence in the hospital can in no way be doubted as she has brought the
prosecutrix to the hospital along with P.W.-17 Anurag and she is bound to be
concerned till prosecutrix is recovered. As per evidence of P.W.39 Dr.Asmita
Patki and P.W.40 Dr. Nisha Singh the condition of the prosecutrix was such
that she was withering with pain, therefore, internal examination had to be
carried out under local anesthesia. Naturally, this witness P.W.5 Tejal was
bound to be there.
109. In cross-examination of this witness, she has given the details at
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which portions she found white stains and blood stains on the pant, bra and
underwear, which further fortifies her presence at the time of seizure
Panchanama of the clothes of the prosecutrix. This presence of the blood
stains and white stains on the clothes of the prosecutrix gives further
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 prosecutrix that at the time of incident accused No.
3 Mohd. Kasim wiped his penis with her socks gets further support and
corroboration from this seizure panchanama of the clothes of the
prosecutrix, which shows that there were 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 further contention that how she can walk from the spot 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 they walk up to the road? Even if one is suffering
from pain or bleeding, that person has to walk with that suffering till the
vehicle is found. The very fact that she told Anurag to take her 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 all any further corroboration is necessary, then it is 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
involved in the incident and each of them is later identified by the
prosecutrix and P.W.17-Anurag in test identification parade and in evidence
before the court.
113. As stated above, after the prosecutrix and P.W.17-Anurag came
to the hospital with the complaint that prosecutrix has been sexually
assaulted by five unknown persons both in natural and unnatural way, P.W.
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40-Emergency Medical Officer Dr.Nisha Singh has immediately 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. P.W.41 P.S.I. Shamrao Patil was on phone. She told him about the
incident.
114. It is deposed by P.W. 41 P.S.I. Patil also that on 22.8.2013 he was
on night duty as SHO from 8.00 p.m. to 8.00 a.m. on the next day along with
A.P.I. Rasal and P.I. Mane. On that night at about 20.40 hours P.W.40 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. According to the evidence of P.W.41-P.S.I. Patil, he made station
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, made inquiry with her about the prosecutrix. She told him that
prosecutrix was being given treatment in emergency Ward. Then at about
74
9.20 p.m. P.W.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. Patil in recording statement of the victim girl.
116. It is deposed by P.W.41-P.S.I. Patil that he himself and WPSI
Mhatre made inquiry with Dr. Nisha Singh, Dr.Asmita Patki and Dr.
Poornima Satoskar about physical and mental condition of the prosecutrix
in order to record her statement. They told her that condition of 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. WPSI Mhatre was asking questions to the prosecutrix and he
was writing answers given by her in narrative form. The recording of the
statement was continued for about two hours. Then it was 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 recording of the complaint, he made phone call to P.W.16-
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A.P.I. Rasal at N. M.Joshi Marg Police Station giving him information about
the incident and the recording of statement of the prosecutrix. A.P.I. Rasal
gave him C.R.No.244/13 for the offences punishable u/s 376-D, 341, 342,
506(II), 34 IPC. Station diary entry was made accordingly. Then after seizure
Panchanama of the clothes of the prosecutrix, he returned to the 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.S.I. Patil
informed him about the information received from 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 Hospital. There they met Dr.Nisha
Singh and made inquiry with the prosecutrix. He also met there P.W.38 WPSI
Mhatre and told her that she should assist P.S.I. Patil in recording statement
of the prosecutrix as lady P.S.I. of their Police Station was on leave.
Accordingly, P.S.I. Patil and WPSI Mhatre went in the Emergency Ward to
record the statement of the prosecutrix.
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119. This evidence of P.S.I. Patil and P.I. Mane is getting further
corroboration from the evidence of P.W.38 WPSI Priyanka Mhatre working
in Crime Against Women Cell since June 2013. According to her, on
22.8.2013 at about 9.00 p.m. while she was at home, she received phone call
from WPI Patil of Unit-I. She informed her on phone that one victim girl in
the case of offence registered at N. M. Joshi Marg Police Station 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. As per evidence of P.W.38 WPSI Mhatre she then
went to Jaslok Hospital and reached there at about 9.20 p.m. 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 request of P.I. Mane, she accompanied P.W.41
P.S.I. Shamrao Patil for recording statement of the 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 given by her. As per her evidence at that time 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
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11.40 p.m. It was read over and explained to her, then signatures of the
victim were obtained on it and then P.S.I. Patil and she herself signed on the
said statement on every page. Thereafter she left the hospital after
informing superiors.
120. There is also corroborating evidence of P.W.16 A.P.I. Rasal on 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 the complaint(Exh.39) all the material details of the incident
and the involvement of the accused is appearing. Whatever details remained
to be stated in the Complaint due to mental condition in which the
prosecutrix was, are found reflected in the supplementary statement
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. There is further one more corroborative piece of evidence which
is medical examination of P.W.17 Anurag. As stated above, P.W.17 Anurag
has in his evidence before the Court disclosed as to how his hands were tied
78
and he was also assaulted with belt by accused No.3 Mohd. Kasim.
According to his evidence, he sustained the blow of belt on his left arm and
as his hands were tied behind, there were some scratches. 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, she has issued the certificate (Exh.167).
124. On the very night itself the statement of P.W.17 Anurag was also
recorded by P.W.43 P.I. Mane. It is evidence of P.W. 43 P.I. Mane that at about
1.00 a.m. he met Anurag in Jaslok Hospital and then came to the Police
Station along with him. There he recorded his statement in which again all
the details are given, as can be seen because no sort of omissions,
contradictions or improvements are brought on record in his cross-
examination 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.
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EVIDENCE RELATING TO SKETCHES OF THE SUSPECTS:-
125. There is also further evidence on record 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 the description of the accused, he called two artists for drawing
sketches of the suspects. The names of those artists are Nitin Yadav and
Siddique Shaikh. He introduced Anurag to them and then as per
description given by Anurag, the artists prepared the sketches of the
suspects which are produced on record at Exhs.71 to 75.
126. P.W.17 Anurag has also stated about drawing of these sketches.
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. 43 P.I. Mane has also stated that after introducing 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 signatures of P.W. 43
PI Mane, the artists and P.W.17.
127. Even a cursory glance to these sketches makes it clear that they
are tallying with the description of the accused in this case. Hence on the
80
basis of these sketches Police were able to reach up to the accused because
evidence of P.W.43 P.I. Mane shows that he 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 23.8.2013, as his description was matching with the sketch, he 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 material piece of corroborative evidence in this respect is
the spot panchanama (Exh.26) proved through the evidence of Panch P.W.2
Bajirao Patil, P.W.41 P.S.I. Patil and P.W. 43 P.I. Mane and the material witness
P.W.17 Anurag who has shown the spots of the incident to them. As per the
evidence of P.W.43 P.I. Mane on that night after returning to the Police
Station he has sent Police Constable to 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
photographer P.W.13-Sandeep Gurav asking him to come at Shakti Mill
premises. Then at about 6.30 a.m. all of them along with P.W.17 Anurag went
to Shakti Mill premises. There P.W. 17 Anurag showed the spot of the
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incident. P.W. 41 P.S.I. Patil then called two Panchas. The spot panchanama
was prepared by P.W.41 P.S.I. Patil and from the spot they collected
Muddemal Article Nos.1 to 3.
129. The evidence of P.W.41 P.S.I. Patil also goes to prove that at
about 6.30 a.m. he along with P.W. 43 P.I. Mane, P.W.17 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
of Shakti Mill they selected two Panchas. Then the panchanama was
prepared and the photographs were clicked of the spots and the articles
shown by P.W.17 Anurag. From the spot, they seized one black piece of cloth
1 1/2 X 1 1/2, Pink colour Odhani, the neck portion of the broken glass beer
bottle and the sample earth. All these articles were separately 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 entry of those muddemal articles in Muddemal Register after
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 1
1/2
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 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 inspected the said 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 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 colour Odhani again gives corroboration to the evidence of the
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prosecutrix that the said Odhani was lying there. It is not her case that said
Odhani belongs to her or she was wearing it at the time of incident.
Therefore, argument advanced by defence Counsels that how she was
wearing it on pant falls on the ground.
132. The recovery of piece of cloth used for wiping the camera lense
proves the presence of P.W.17 Anurag at the said spot. The description of the
platform, as given by the panch and written in the Panchanama again
support the evidence of the prosecutrix that she was 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.17 Anurag was kept with his
hands tied behind the back. It is deposed by the prosecutrix that from the
place where she was taken, P.W.17 Anurag was not visible. Similarly, the
evidence of P.W.17 Anurag is to the effect that place where the prosecutrix
was taken was not visible from the place where he was kept tied. He can
only hear her screams. The spot Panchanama also proves the deserted
premises covered with shrubs and grass where the incident took place as
deposed by the prosecutrix.
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133. The description of the spot as given in the said Panchanama 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 of PI Mane and P.W.17 Anurag he took the measurements of the
spot shown by P.W.17-Anurag and prepared rough sketch(Exh.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. 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 defence had any doubt about veracity of this map, then it 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.59/1 to 59/22. As per evidence of P.W.13 Sandeep 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. Defence Counsels were given copies of the said memory card in CD.
They have verified the truthfulness of these photographs. In these
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 contention raised by Defence Counsels is that if it was
rainy season, how the articles can remain intact as they are. 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. The photographs are the clinching proof of it. It is 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 in photograph Exh.59/9 the media persons are seen
present and two O.B. vans of media were also present there.
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EVIDENCE RELATING TO THE MEDICAL EXAMINATION OF THE
ACCUSED:-
136. This brings me to the evidence relating to the medical
examination of the accused persons.
137. On 26.8.2013 P.W.25 Dr.Harshal Thubhe attached to J.J Hospital
has examined all these 5 accused persons including juvenile-in-conflict-
with-law on the request letter 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 Description of Injuries
Accused No.4 Mohd.Salim i) Scratch abrasion of 3 cm. linear over right
forearm extensor aspect; reddish scab
formation in middle third region.
Accused No.1 Vijay Jadhav i) Scratch abrasion 4 cm. over right shoulder
Superior aspect just over shoulder tip with
reddish scab.
ii) Scratch abrasion of 3 cm. over back
below left scapular regions, reddish scab.
Accused No.2 Siraj Khan i) abrasion of 2 cm x 0.3 cm., brown scab
over posterior aspect of right elbow.
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138. In his evidence he has stated that the reddish colour of the scab
suggests age of the injuries as 3-6 days and brown colour 4-7 days. He has
accordingly issued the medical certificates Exh.106 to 109. He has also
collected penile swabs and pubic hair of all the five accused persons for
DNA analysis.
139. The presence of scratch injuries on the visible portion of the
bodies of these three accused clearly suggests and proves the occurrence of
the incident as deposed by the prosecutrix.
ARREST OF THE ACCUSED AND RECOVERY AT THEIR INSTANCE:-
140. Now coming to the evidence relating to the arrest of the accused
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-in-
conflict-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 is also evidence of P.W.32 A.P.I. Sunil Pawar about the arrest of
juvenile-in-conflict-with- law. He has on the basis of sketches received from
N. M. Joshi Marg Police Station had arrested him from the area of
Dhobighat. According to him, description of Juvenile-in-conflict-with-law
is tallying with the sketch(Exh.74). During inquiry with juvenile, as per
evidence of P.I. More, names of other accused were transpired and search
teams were formed for arrest of these four accused.
ARREST OF ACCUSED NO.1 VIJAY JADHAV:-
141. One of the search team was headed by P.W.11 P.I. Gulabrao More
attached to DCB CID Unit-II. According to his evidence on 23.8.2013 at
about 11.30 p.m. P.I. Raje informed him that he has received 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. In the midnight at about 1.10 to 1.15 a.m.,
the informant showed them the accused Vijay Jadhav, who has entered into
video parlor. They accosted him, called the Panchas and arrested him under
panchanama(Exh.51).
89
ARREST OF ACCUSED NO.4 MOHD. 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
Delhi Airport by flight and landed at Delhi at about 7.40 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 Laltuprasad Gautam who was present there.
143. As per evidence of P.W.10 Ajay Kumar Gautam on 25.8.2013
when he and his friend Sanjaykumar Tiwari were standing at Bus Stop No.
115 and taking tea, in his presence, personal search of accused no.4
Mohd.Salim was taken in which Nokia mobile(Muddemal Art. No.13) was
recovered along with cash amount of Rs.300/- and one railway ticket dated
23.8.2013 from Kalyan to Delhi which proves that he has left Mumbai after
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the incident. This Nokia company mobile i.e. Muddemal Art. No.13, cash
amount of Rs.300/- and railway ticket Muddemal Art. No.14 were seized
from his possession under panchanama (Exh.49) which was properly
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 Court also. Then accused No.4 Mohd.Salim was brought in transit
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 NO.3 MOHD. KASIM
144. Accused No.3 Mohd.Kasim @ Bangali Baba was arrested by P.W.9
A.P.I. 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 panchanama(Exh.46). Then on 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
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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 he asked one mobile seller to 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 panchanama(Exh.43). Muddemal Article 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 corroborating evidence of P.W.8 Mr. Ravi Dandagule
who has stated that after identifying the accused No.3 to be the same
person who has sold him the said mobile 5-6 days back, he has 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 exhaustive cross-examination of these three witnesses
has not shattered either their credibility or the truthfulness in any way.
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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
beaten in the police custody. This contention is of no avail because
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.
147. Recovery of these two mobiles i.e. Muddemal Art. No.12 at 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 there is evidence of P.W.35 Mr. Samsher Sharif Shaikh who
has stated that SIM Card No.9699678430 stands in his name. He had
purchased it in November 2012. It was of Reliance company. He has
identified the Customer Application Form(Exh.140) which bears 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
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as he was not having SIM card and he was knowing him because they are
residing in the same area. In his cross-examination, it is brought on 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 prosecution has produced on record the Call Detail Records
of this Sim Card No. 9699678430 through the evidence P.W.31 Mr. 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(Exh.137) of the mobile along with
Customer Application Form (Exh.140). As per his evidence this mobile No.
9699678430 stands in the name of P.W.35 Shamsher Sharif Shaikh.
150. Thus as per evidence on record two mobiles were recovered 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.
151. Prosecution has examined P.W.29 Mr. Baby John, Nodal officer
in Tata Teleservices who has produced on record Call Detail Records of
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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.
152. P.W.27 Mr. Changdev Godse, Nodal Officer in Vodafone has
produced on record Call Detail Records of mobile No.9769125965 along with
certificate (Exh.121). Its IMEI number is 359730045756169. 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
Communication Ltd. has produced the Call Detail Records of SIM No.
9699678430 given by P.W.35-Samsher Shaikh to Chand, juvenile-in-conflict-
with-law. P.W.36-Aakash Swamy in his evidence has stated his mobile
number as 9702086841. In the Call Detail Record (Exh.121) of accused No.3-
Mohd.Kasim, there is mention of phone call from accused No.3-
Mohd.Kasim to mobile No.9702086841 of P.W.36-Aakash 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:-
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CHART OF MOBILE PHONE CALLS AMONGST ACCUSED, JUVENILE-IN-
CONFLICT-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 Aakash
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 this aspect, the evidence of P.W.36 Mr.Aakash Swamy 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
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Marg. He knows other three accused in this case also whom he 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.3 Mohd.
Kasim received phone call and said on phone that, Bol Salim kya ho 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 said, Chal Sirju shikar aa gaya hai. When P.W.36 Aakash 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 Mohd. Kasim replied that, Hiran ke shikar pe jana hai. Saying so,
both accused No.3 Mohd. Kasim and accused No.2 Siraj left.
156. According to P.W.36 Aakash Swamy, after 15 to 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.
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
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did not respond to his call. After 10 to 15 minutes, accused No.3 Mohd.
Kasim made phone call to him. He asked accused No.3 Mohd. Kasim
whether he was coming to play? He said, no, he was outside.
157. It is further deposed by this witness that on 24.8.2013 he read in
the newspaper that juvenile in conflict with law Chand was arrested in the
case of incident of rape on a girl in Shakti Mill Premises. 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 Sirju at Dhobighat where he 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 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
Detail Records of the mobiles calls exchanged between accused No.4
Mohd.Salim and accused No.3 Mohd.Kasim and also with juvenile-in-
conflict-with-law, Chand.
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159. His evidence also fully supports and corroborates the evidence
of the prosecutrix and P.W.17 Anurag that initially there were only 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-conflict-with-law, Chand came there. The code
language used by the accused amongst them that of 'Shikar aaya hai, shikar
ko jana hai' and accused No.3 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
conspiracy. The law is well settled that it is difficult to get the proof of
criminal conspiracy by direct evidence and hence, one has to rely on
indirect evidence. As held in the authority of 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, the law does not require that the fact of agreement takes any
particular form. The fact of agreement may be communicated by words or
conduct. Thus, it has been held that it is unnecessary to 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 there was 'a tacit understanding between conspirators as to what
should be done.'
160. Hence, just as the proof of pudding lies in its eating, similarly
the proof of criminal conspiracy lies in commission of various acts by the
accused during the course of incident. In this case, the participation 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 accused on mobile and then their acting in unison, sufficiently
establishes that the entire incident was executed in pursuance of criminal
conspiracy hatched by them with their juvenile associate.
161. In this case, the proof of criminal conspiracy can be 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 girl and boy in the said premises, being always be on the prowl of
victim. The Call Detail Records also proved clinching 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
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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 one more equally strong piece of evidence that is test
identification of these four accused, conducted by P.W.28 Nagorao
Lokhande, Executive Magistrate Lokhande on 6.9.2013 on the request of
Investigating Officer of Crime Branch. As per evidence of P.W.44 P.I.
Dhanavade that on 28.8.2013 the prosecutrix was requested to come for test
identification parade of the accused to be held on 2.9.2013 but it 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. P.W.
4 prosecutrix's mother has supported this evidence along with 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 detail procedure and precautions which he took at the time of
conducting of test identification parade. He has conducted test
identification parade of these four accused separately one after another by
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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 clothes if he desires. Then one after another in
presence of Panchas two witnesses, namely P.W.17 Anurag and the
prosecutrix were called for. Both of them have identified all the four
accused. Memorandum Panchanama which is prepared as per Exh.123 was
written simultaneously, while conducting of test identification parade.
164. An attempt was made by defence Counsel to point out some
alleged infirmities in the conduct of test identification parade like, it is not
mentioned in the memorandum panchanama that the accused were asked
whether they wanted their Advocate to remain present at the time of test
identification parade. It is submitted that in the panchanama it is also not
mentioned that window of the room was closed. The names of other
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
Vijay was wearing the same clothes which he was wearing when Panch left
to bring the witness. P.W.28 Nagorao Lokhande cannot say whether
accused No.1 Vijay was wearing the footwear. He also cannot say whether
dummy No.5 Allauddin was having beard, mustache or not, whether
dummy No.3 Mohd. Samsher Abdul Wahab was wearing religious cap and
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whether the height of dummy No.6 Somnath was 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 proper track. The substantive evidence about involvement of 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
evidence relating to the test identification parade of the accused is to
whether there were sincere efforts on the part of the Magistrate to make 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 any prejudice to the accused. Some laxity in the 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 V Suresh 2000 S.C.C. (Cri) 263, when similar such contentions
were raised to challenge the evidentiary value of test identification parade.
103
According to the Hon'ble Supreme Court,
If potholes were to be ferreted out from the
proceedings of the Magistrates holding such parades
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
every test identification parade would become
unusable. We remind ourselves that identification
parades are not primarily meant for the court. They are
meant for investigation purposes. The object 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. Second is to satisfy the investigating authorities
that the suspect is the real person whom the witnesses
had seen in connection with the said occurrence. So the
officer conducting the test identification parade should
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 the present case even if for the sake of argument, it is
assumed that there are some 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 given to the identifying witnesses by investigating agency
so as to facilitate the identification of the accused. Investigating agency does
not appear to have played any hand in conducting of these parades.
167. It is pertinent to note that test identification parades were held
104
immediately after lodging of the complaint. Hence 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 to the
witnesses because both the prosecutrix and Anurag had given detailed
description of these accused.
168. Things would have different if the prosecutrix and 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 on record in this case, is so 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
test identification parade, as stated above, is to support or give
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, 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 in investigation to confirm the truthfulness about
the identity and not more than that. If suspects are totally 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 the case though it is true that, suspects were unknown 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, they would not
have given detailed description of the accused in the complaint (Exh.39)
and in their statements respectively. Secondly, here in this case the
identification of the accused in the Court is also within 3 months after the
incident. The incident has taken place on 22.8.2013 and the 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 to forget the peculiar and specific features of the
accused.
106
171. An attempt is also made by the Learned Defence Counsel by
examining D.W.2 Mr. Dayanand Shreenivas Kamat,Special Correspondent,
DNA Newspaper and D.W.3 Mr.Divyesh Anil Singh, Journalist Mumbai
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 the first place both the witnesses have denied that
they had seen the newspapers articles. The Learned Spl.P.P. has also pointed
out that as admitted by the defence witness Mr.Diveysh Singh, from
Mumbai Mirror, this newspaper article (Exh.223) is not at all properly
proved as main copy of this Edition is in the hard disk. It is not primary
evidence. Moreover, he has not 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 also. Therefore he cannot say with certainty what part
has been added or modified in that story 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 taken from the photo library and they are of the history sheeters.
Therefore as as submitted by Spl.P.P., publication of these photographs is
also not sufficient to assail the test identification parade evidence of the
accused by the witnesses.
173. Though Learned Counsels for the accused have relied on the
authority of Sanjay @ Gangadhar Vishvarup Shelke and another V. State of
Maharashtra 1999 (3) 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 or to note their features so as to identify them in the identification
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
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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 being shown to the witnesses prior to the test identification
parade.
174. As against it, in the present case no such possibility is 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. It has to be reiterated that, on the
basis of description given by Anurag, sketches of the suspects were
prepared, which led to arrest of accused.
175. Spl.P.P has also relied on the authority of D. Gopalkrishnan V.
Sadanand Naik and Ors. (2006)1 Supreme Court Cases (Cri) 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
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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 matter of fact, each case depends on its own facts 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, and hence the identification of the
accused by the witness in the court is not admissible, acceptable or reliable.
178. Much also depends, upon several factors like the nature of the
offence, the proximity of the accused with the witnesses, observing,
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absorbing, retaining and recalling power of the witness, the special
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
committed some laxities or infirmities in conducting the same. 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, reliable and inspiring 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. Moreover, as stated above, this is a unique case in the sense that
prosecutrix alone was not the victim and eye witness to the incident but
there is one more witness i.e. P.W.-17 Anurag who was also with the
prosecutrix in the major part of the incident and who has an equal
opportunity to observe the accused as his evidence shows that when
accused were going one after another to commit sexual assault on the
prosecutrix, remaining accused continued to detain him. Therefore, he had
also an opportunity to observe the accused.
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180. In my considered opinion, in the present case evidence of 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
merely a supporting or corroborating evidence to evidence of dock
identification. Here both the witnesses had more than sufficient
opportunity to observe the accused persons as entire incident has taken
place for more than 30-40 minutes. At the time of incident, they 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 and juvenile-in-conflict-with-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 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 if she wants to forget them. There is absolutely no chance of
prosecutrix making any mistake about identification of the accused.
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181. Moreover, as per well settled position of law, the bizarre incident
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 observed by Apex Court in the case of Ravinder Kumar V.
State of Punjab 2001 Supreme Court Cases (Cri) 1384 relied upon by the
Learned Spl.P.P.,the bizarre incidents have the tendency to stick in the mind
of the person indelibly. Anything which has any special or peculiar
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 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 person.
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183. Hence, the contention that witnesses cannot recognize the
persons involved in such events is overlooking the psychological
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 were subjected to, are not routine events but they are shocking,
life threatening and therefore, they 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 dock identification is also immediately done 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 may commit any error or mistake
in the identification of these accused even though previous to the incident
they were unknown to her. The evidence of test identification in the 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.
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185. Even if for the sake of argument, the evidence relating to the test
identification parade is excluded from consideration, so as to remove
apprehension in the mind of the accused that their photographs were
alleged to be shown to the particular witnesses, it does not make much
difference to the prosecution case.
186. As regards P.W.17 Anurag, it is pertinent to note that he 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 manner of doubt about the identity of the accused. The defence
argument that there are persons looking similar to the persons in the
sketches and there may be several persons of the same name, that will not
make any difference because both the witnesses have categorically
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.
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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.39-
Dr.Asmita Patki, at the time of medical examination of prosecutrix,
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, nail clippings of both the hands. She has also collected whitish
and blood stains from medial aspect of both the thighs, pubic hair matted,
combed and cut. Dr.Satoskar who was with her has sealed the samples and
handed over in the same condition to the police. These sealed medical
samples of prosecutrix were collected by P.W.15-P.C.Suhas Kaginkar on
23/08/2013 itself. As per his evidence, on that day, P.W.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 to the letter. He returned
along with those articles to the police station and informed about it to 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 handed over the sealed bag to the clerk at F.S.L. and obtained the
acknowledgment on the forwarding letter-Exh.66. His statement came to be
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recorded accordingly on 25/08/2013. In his cross 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 Polcie Station along with one sealed plastic bag. He opened
the said plastic bag and found the articles therein in sealed condition, Those
articles were Exh.1 vaginal swab of the victim, Exh.2 clipping of matted
pubic hair of victim, Exh.3 Pubic hair of victim, Exh.4 vaginal swab of victim,
Exh.5 vaginal swab of victim, Exh.6 Rectal swab of victim, Exh.7 Nail
clippings of the victim, Exh.8 blood of victim, Exh.9 vaginal smear slide of
victim, Exh.10 Pubic hair of victim. Along with these 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 him, thereafter on 26/08/2013, he received letter
from DCB, CID, Unit III along with the clothes of prosecutrix in sealed
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condition having blood and semen stains thereon. Those clothes were, Exh.
2 full jeans pant, Exh.3 nicker, Exh.3A hair found on Exh.3, Exh.4 Brassiere,
Exh.5B one socks, Exh.7-odhani, Exh.10 full jeans pant, Exh.11-underwear.
He extracted the DNA from the blood and semen stains on these clothes and
prepared DNA profile.
190. P.W.21-A.S.I.Kolambkar who has, as per the directions of P.W.44-
P.I.Dhanavade has taken these 12 sealed packets along with the forwarding
letter Exh.90 to FSL, Kalina and obtained its acknowledgment.
Subsequently on 28/08/2013, P.I.Dhanavade sent him to 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 arrest of all the accused, on 27/08/2013 they were sent
by P.W.44-P.I.Dhanavade to Nagpada Police Hospital along with letter Exh.
194 for taking their blood samples for DNA examination. P.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. In the presence of witnesses, she collected their
blood samples after obtaining their consent and sealed those bottles in the
presence of the witnesses and handed over them to the Constable who was
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along with P.W.44-P.I.Dhanavade in sealed condition, with consent forms of
all the five accused marked as X-1 to X-5. The entry to 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 in her cross 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 along with the forwarding letter by P.W.33-P.N. Nandakumar
Adhavkar.
192. This evidence of P.W.22-Dr.Suchita Phad is getting complete
support from the evidence of P.W.44-P.I.Dhanavade and P.W.33-
P.N.Adhavkar. P.W.44-P.I.Dhanavade has given him the letter for taking the
five accused for getting their DNA samples. Accordingly he has taken them
first to police surgeon and as per the directions of Police Surgeon to P.W.22-
Dr.Phad. According to him, P.W.22-Dr.Phad filled up the forms in the
presence of witnesses and then he came along with sealed samples to DCB,
CID, Unit III. There P.W.37-P.I.Chavan gave him forwarding letter to FSL. On
the same day, he gave those samples and other muddemal given by
P.I.Chavan at FSL and obtained the acknowledgment on the letters-Exh.144
and Exh.145.
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193. Thereafter on 30/08/2013, prosecutrix was called for taking her
DNA profile which fact is deposed by prosecutrix and P.W.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 this stage, it may be stated that the clothes of the accused
were seized in the course of investigation. P.W.18-Panch Atish Kadam has
proved the recovery of the clothes of accused No.4-Mohd.Salim in
pursuance of the memorandum panchanama (Exh.80) on 27/08/2013. As
per the evidence of P.W.18-panch witness Atish Kadam and P.W.37-
P.I.Chavan, accused No.4-Mohd.Salim then guided them to his house at
Vishnu Nagar Colony, Chembur. From there, he took them to his house and
produced one pant and shirt from the bundle of clothes which 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 instance. On shirt they found some dark spots and 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
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inquiry with accused No.2-Siraj in the presence of panch witness-P.W.30-
Praful 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 the shirt and pant and on pant, there was red spot near the chain
and on the left portion, the soil was seen. The seizure panchanama (Exh.
133) was prepared. Both of them have identified Muddemal Article Nos.29
and 30 as the same clothes seized at his instance.
196. There is also evidence of recovery of clothes of accused No.1-
Vijay on 28/08/2013 at his instance under memorandum panchanama (Exh.
83) and seizure panchanama of the clothes (Exh.84). This evidence is also
proved through the evidence of panch witness, P.W.19-Kunal Kadam and
P.W.37-P.I.Chavan. According to their evidence, accused No.1-Vijay guided
them to Tamanna Farsan 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 and
soil at leg portion and seat portion. Both of them have identified Muddemal
Article Nos.21 to 23 as the same clothes seized at his instance.
197. There is then evidence of recovery of clothes on 29/08/2013 of
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accused No.3-Mohd.Kasim on 28.8.2013, proved through the evidence of
panch witness P.W.20-Vaibhav Mohite and P.W.37-P.I. Chavan, vide
memorandum panchanama(Exh.86) and seizure panchanama(Exh.87).
According to their evidence, accused No.3-Mohd.Kasim guided them to his
house i.e. at Shanty, near Saat Rasta, Maulana Azad Road and produced his
pant and belt. The pant was having soil on its seat and leg portion. Both of
them have identified Muddemal Article Nos.26 and 27 as the same clothes
seized at his instance.
198. As per the evidence of P.W.44-P.I.Dhanavade, all these clothes of
the accused also were sent to C.A. along with the forwarding letter with the
carrier.
199. The evidence of P.W.42-Shrikant Lade goes to prove that on
27/08/2013, he has received the sealed medical samples of the accused
along with the blood sample for DNA profile. He has extracted the DNA of
the said samples and applied the method of 17Y STR LOCI using Y filer PCR
(Polymerase Chain Reaction) Amplification Technique. He has given the
detail procedure on the basis of which he has arrived and prepared the
Reports Exh.175 to Exh.181. These findings of DNA profile can be
summarized as follows :
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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 - Clipping of matted pubic hair 1) Vijay Jadhav.
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 profile of blood detected on full jeans pant (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
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Description of the samples Name of the accused whose
DNA was found
prosecutrix are identical and from one and same source of female
origin. DNA profiles matched with the maternal and paternal alleles
in the source of blood.
ii) DNA profile of hair (Ex.3-A) found on nicker (Ex.3) of
prosecutrix and blood sample (Ex.8) of accused No.2 Siraj Rehmat
Khan are identical and from one and same source of male origin.
DNA profiles matched with the maternal and paternal alleles in the
source of blood.
DNA EVIDENCE ON THE CLOTHES OF 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. 2 Siraj
Exh.7-Full Jeans pant of accused No.1 Vijay
Exh.8-Underwear of accused No.1 Vijay
Exh.10-Full Jeans Pant of accused No.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
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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
prosecutrix were identical and collected from one and same source of
female origin. Accordingly, he has prepared report Exh.180.
202. This forensic evidence of DNA matching leaves absolutely 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 pertinent to note that the vaginal and rectal swabs and 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.C. Kaginkar i.e. very much
before these accused were arrested. Therefore, it totally rules out the
allegations of tampering with the medical samples, as contended by defence
Counsels. It also rules out the defence of the accused that in the police
custody, their semen was extracted and it was spread on the clothes of the
prosecutrix. Even if the finding of 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 and their associate Chand, juvenile-in-conflict-
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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. Therefore, there is no question at all of anyone playing or
tampering with the forensic evidence. The cross-examination of P.W.42-
Shrikant Lade therefore that, he has not decided the age of semen and blood
stains and there is no difference between the semen or blood oozing
naturally or extracted forcibly, becomes irrelevant. This argument would
have some weight if the medical samples of prosecutrix were collected and
sent to F.S.L.after the arrest of the accused. That is not the case here at all.
Everything has been done before the accused were arrested. So absolutely
no question of accused being implicating falsely by tampering with forensic
evidence.
205. Therefore, the further argument of defence about the 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
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evidence which proves the DNA of all these four accused on medical
samples of the prosecutrix which were collected and analysed before the
arrest of the accused.
206. In the face of this strong evidence, absolutely no other evidence
is required though there is evidence proving that even blood found on the
odhani recovered from the spot was matching with the blood of the
prosecutrix. There is also evidence 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 the light of all these strong and clinching pieces of multiple
evidence, the defence of the accused that they are 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 contended that neither the prosecutrix nor Anurag or Tejal
have produced any evidence to show that they were working in Media. It is
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also argued that no evidence is produced to show any such Magazine by
name 'Time Out' is actually published. It is urged that only with a view to
attract the attention of Media, prosecution has created a story that 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. As rightly submitted by Spl.P.P., why every time one
should insist on documentary evidence? In the opinion of this Court also,
why the witnesses should be disbelieved when they are stating on oath with
full responsibility. Only when we start believing oral testimony of witnesses,
we will get honest witnesses.
209. The theory that to make the case sensational and to attract the
attention of Media, prosecutrix has posed herself as Photojournalist is
totally ludicrous and has to be rejected outrightly. The complaint is lodged
within less than hour of incident and that too after such mentally shocking
incident. Hence where was the time to create or concoct 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. The circumstances in which the incident has taken place, can it
be believed that one will think of making the story sensational? As a matter
of fact, when a woman is very much reluctant to disclose any of such
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incident even if it really occurs, where the question arises of prosecutrix
trying to attract the attention of Media ?
210. Moreover, what was the reason for the police also to concoct
such case, if it has not happened. There was no reason for police at all to be
under pressure when they had solved the entire case within one or two days
and had been quick to arrest the accused and conduct the prompt
investigation, as stated above. It is hardly believable that, 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
committing such sexual intercourse with prosecutrix and the argument
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 prudent man. How, in the first place, Anurag will run away from
the spot when his female colleague was held behind and when he was
hearing her screams? Can he leave her there and run away? It is totally
unimaginable or unacceptable. Moreover, when there were five persons
threatening him, beating him, where was the scope for him to run away,
even if he wanted to? As a matter of fact, the courageous stand taken by
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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
appreciated. Instead of that, defence is maligning them by putting
suggestions which have no basis and advancing arguments which are
absolutely ridiculous. The finding of DNA of accused on the medical
samples and clothes of prosecutrix totally rules out defence that Anurag
might have committed rape on her.
DISCREPANCIES AND OMISSIONS POINTED OUT BY THE DEFENCE
COUNSELS:-
212. Even as regards the alleged discrepancies or omissions 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. 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 fair map produced by P.W.1 Sandeep Kanvinde, there
were two entrances to the spot. However, prosecutrix and
P.W.17 Anurag have stated that there was only one entrance.
2. Doctors have not stated anything about presence of P.W.5
Tejal in the hospital though she has stated that she was
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present upto 1.00 a.m. in the hospital.
3. If prosecutrix was not able to walk in the hospital and she 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. There is no certificate of Doctor that prosecutrix was in a fit
state of mind, on her complaint (Exh.39).
5. In photographs (Exhs.59/1 to 59/22) name of 'Shakti Mill' is not
appearing on any structure.
6. Photographs in the Memory Card can be edited and modified.
7. Why the mobile of prosecutrix and camera of Anurag was not
seized immediately after the incident?
8. If she was bleeding profusely, then why statement of taxi driver
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
prosecutrix u/s.164(5) of Cr.P.C. is not examined by the
prosecution.
10. The make of mobile of accused No.3-Mohd.Kasim and Chand,
juvenile-in-conflict-with-law is not stated by P.W.36 Aakash
Swamy.
11. Who paid the charges of the medical treatment of the
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prosecutrix? Where are the discharge papers? The prescription
not produced?
12. There may be many persons of the name 'Mohd. Kasim'.
13. If, as per evidence of the prosecutrix, all the accused have wiped
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 say the least, all these alleged discrepancies are in respect 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 V State of M.P., AIR 1999 S.C. 3544 that,
Courts should bear in mind that it is only when discrepancies
in the evidence of witness are so incompatible with the
credibility of his version, Court is justified to jettisoning his
evidence. But too serious a view to be adopted on mere
variations falling in narration of an incident either as between
evidence of two witnesses or as between two statements of the
same witness, is an unrealistic approach for judicial scrutiny.
Moreover, all inconsistent statements are not sufficient to
impeach the credibility of the witness. A former statement,
though seemingly inconsistent with the evidence, need not
necessarily be sufficient to amount to contradiction. 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
1985 SC 48 wherein the Supreme Court held that,
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.
215. Herein the case, whatever infirmities or drawbacks that are
pointed out in the evidence of the prosecutrix or other witnesses are not
against the general tenor of the evidence given by them. The evidence of
each and every witness examined by the 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
Maharashtra 2000 S.C.C.(Cri)1546 relied upon by Spl.P.P., minor
contradictions are bound to appear even in the statements of truthful
witnesses as memory sometimes plays false and sense of observation differs
from person to person. Hence the omissions in the earlier statement, 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 importantly, a witness, like prosecutrix, a young girl who
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 mix up facts and get confused regarding sequence of
the events or fill up details from imagination at the spur of 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
giving truthful and honest account of the occurrence of the incident
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. These reasons which are so elaborately laid down in the
case of Bhoginbhai Hirjibhai V State of Gujarat, AIR 1983 SC 753, perfectly
apply to the facts of the present case.
218. Here horrendous incident has occurred all of a sudden. The
circumstances in which the prosecutrix and witness Anurag found
themselves were such that they cannot be expected to tape-record 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
piercing and searching cross examination by four different defence
Counsels, which cross examination is running not only in several pages but
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on every minor details of the incident. It would have been unnatural and
unbelievable if such discrepancies had not occurred in their evidence. The
fact that such minor discrepancies are appearing in their testimonies gives
credential to their deposition. They give inbuilt guarantee of the
truthfulness of their testimony. Corroboration of the evidence with
mathematical niceties cannot be expected in 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
pointed out, have to be assessed in the background of the incident
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 omissions and contradictions. When these witnesses are cross
examined about such with minutest details, it cannot be expected that their
evidence should be free from such discrepancies. These discrepancies
therefore do not affect the substratum of prosecution case.
135
220. When presence of P.W.5 Tejal on the spot is very much 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
recording of her complaint by two Police Officers P.S.I.Patil and WPSI
Mhatre, prosecutrix was in fit condition to give the statement. Similarly,
when the make of mobiles recovered from the accused are mentioned in the
Panchanamas along with IMEI number, it is not required to be stated in the
evidence before the Court.
221. As regards defects in the investigation like police not seizing the
mobile and shoes of the prosecutrix, and camera of Anurag on the same
night, these defects are too minor. Defects in investigation, as per well
settled position of law, do not affect credibility of the evidence of
prosecution witnesses. There is ample case law on the said aspect like
Dhanaj Singh alias Shera and Ors. V. State of Punjab, 2004 S.C.C.(Cri) 851 and
C.Muniappan and Ors. V State of Tamilnadu (2010) 3 S.C.C. (Cri) 1402
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 contention is also raised by learned Counsel Mr. 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 and hence, it is an improvement made by her in the course of
evidence. However, it is pertinent to note that in her supplementary
statement recorded immediately on 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. 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 piece of evidence. As held in the authority of Bijoy Singh and
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Anr. V State of 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 can only be used to corroborate the statement of the maker
u/s. 161 of The Evidence Act or to contradict him u/s. 145 of the said Act.
224. An attempt is also made to contend that the Spl.P.P. has, 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 or in the statements recorded by police. 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? How did accused No.3-Mohd.Kasim call other
two persons? In which language accused were talking? What was 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
language? What she understands by 'he raped me'? Can she give the
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 and the entrance of that room? Whether the 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 urged by defence Counsels that all these questions were
asked to the prosecutrix, only with an intention to give opportunity to her to
bring on record more details of the incident which are not appearing in the
complaint or in her statement recorded by police and thereby to fill up the
lacuna by obtaining her explanation on certain aspects to fortify the
prosecution case. According to learned Counsels for 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
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infirmity in the prosecution case.
226. However, as rightly submitted by Spl.P.P., it is the duty of Public
Prosecutor to elicit these facts. As held in the 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 as he deems necessary for the case. No Public
Prosecutor can be nailed to the statement recorded under
Section 161 of Cr.P.C..
There is always some difference between the statement recorded by police
and the evidence recorded in Court. The Public Prosecutor is hence not
bound or expected to stick up to the police statement. But, it is his job to get
proper explanation from the witness to bring true facts before the Court, to
assist the Court in arriving at the just decision. Such clarifications,
elucidations or explanations obtained by the Public Prosecutor by asking
questions to the witness, while discharging his duty towards the Court, as
officer of the Court, can not affect credibility of the witness. In the said
process of probing the witness to ascertain the truth, if some questions are
asked to the witness by Public Prosecutor, witness is bound to depose
certain more details of the incident which were not elicited from him when
he was interrogated by the police. At such time, witness may also recall or
remember certain things in respect of which he was interrogated by the
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police.
227. In Narayan Chetanaram Chaudhary and Anr. V State 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 narration
extracted by the Public 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 the witness in his or her testimony. It is
always necessary for the Court while assessing the alleged
omissions or improvements to see whether they are dishonest
improvements capable of dislodging the prosecution 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 totally irreconciling with the prosecution story, then only
omission amounts to contradiction.
228. Whatever omissions or contradictions which are pointed 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 has improved the story. As held in the above
said authority of Chandrashekhar Sureshchandra Bhatta V State of
Maharashtra,
Marginal variations on certain aspects as between 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
improvements made with any sinister motive. They are
elaborations elicited by the Public Prosecutor during the
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examination-in-chief.
229. Learned Spl.P.P. has also relied upon the authority of Esher Sing
V State of A.P., (2004) 11 S.C.C. 585 to submit that, though it is true that some
statements were made for the first time in court and not during
investigation, it has to be seen as to what extent they diluted the testimony
of prosecutrix or other witnesses. A mere elaboration cannot be termed as
discrepancy. When the basic features are stated, unless the elaboration is of
such nature that it creates a different contour or colour of the evidence, the
same cannot be said to have totally changed the complexion of case. If
whatever is stated is only by way of clarification on question being asked by
Public Prosecutor, then as held in authority of Jai Karan and Ors. V State of
U.P., 2005 S.C.C. (Cri) 812, it cannot be termed as an improvement.
230. The evidence on record also leads to no other conclusion but to
hold that the accused persons have acted in pursuance of criminal
conspiracy hatched by them. The evidence of prosecutrix 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 girl on whom they have committed the rape. Already they have
raped several other girls but no one has arrested them. This is a sort of extra
judicial confession made by accused No.3 Mohd. Kasim before prosecutrix.
This evidence of prosecutrix along with the evidence of Call Detail Records
and evidence of P.W.36.-Aakash Swamy, discussed in detail herein 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 :
231. The evidence of prosecutrix regarding sexual incident
supported with forensic evidence goes to prove the charge of criminal
conspiracy, gang rape, unnatural offence and of compelling her to disrobing
as contemplated under Sections 120-B, 376(D), 377 and 354(B) 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
lascivious material and asking her to do accordingly goes to prove the
charge under Sections 354(A)(iii) of I.P.C. and Section 67 of Information
Technology Act, 2000.
233. The evidence of prosecutrix and P.W.17-Anurag goes to prove
further charge of wrongful restraint, wrongful confinement and of
voluntarily causing hurt and criminal intimidation, as contemplated under
Sections 341, 342, 323 and 506(II) of I.P.C.
234. The evidence of prosecutrix goes to prove that her photograph
was taken on mobile by accused No.4-Mohd.Salim and the said photograph
is destroyed by the accused knowing fully well that the offence is
committed. The shirt of accused No.3-Mohd.Kasim is also destroyed after
the incident, knowing fully well that offence is committed and, therefore,
the charge under Section 201 r/w 120-B of I.P.C. is required to be held
proved.
235. Having come to the conclusion that prosecution has succeeded
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.
236. On the question of sentence, it is submitted by Spl.P.P. Shri
Ujjwal Nikam that considering the serious offences which are proved
against the accused like the 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 necessary for this Court to give ample opportunity to both, the
prosecution and also the accused to make submissions on the quantum of
sentence.
237. In this respect, he has relied upon the two authorities of Apex
Court that of Anshad and Ors. V State of Karnataka 1994 S.C.C. (Cri) 1204
and Allauddin Mian and Ors. V State of Bihar 1989 S.C.C.(Cri) 490 wherein
Apex Court in para 10 of its judgment has considered the provisions of
235(2) of Cr.P.C. and laid down that these provisions are required to be
followed in spirit and not as a mere formality. In the words of the 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 brought on record. It was 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 Apex Court has in this authority laid down a general 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
before it and thereafter pronounce the sentence to be imposed on the
offender. This general rule was laid down by Apex Court considering the
fact that on the pronouncement of holding the accused guilty, accused may
be in a state of shock and may not be in a position to advance the
submission on the very day itself.
239. The defence Counsels have also submitted that it 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 which may have bearing on the quantum of sentence. In view
thereof, pronouncement of sentence is reserved till tomorrow 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)
20/3/2014 Principal Judge, Bombay City Civil Court
& Sessions Judge, Gr.Bombay.
Resumed on 21/03/2014
240. The Judgment was stopped to hear the accused on the question
of sentence. At this stage, learned Spl.P.P. has filed an application under
Section 211 of Cr.P.C. submitting that as three accused in this case, namely,
accused No.1-Vijay, accused No.3-Mohd.Kasim and accused No.4-Mohd.
Salim have been held guilty and convicted by this Court in Sessions Case 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 for the offence under Section 376(E) of I.P.C. In his opinion, it is
expedient in the interest of justice to frame such additional charge.
241. On this application, the order of 'accused to file say' is passed.
242. Learned Counsels for all the accused submitted that it is the
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)
21.3.2014 Principal Judge, Bombay City Civil Court
& Sessions Judge, Gr.Bombay.
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-Mohd.Kasim and accused No.4-Mohd.Salim for the offence
punishable under Section 376(E) of IPC vide Exh.234 on 24/03/2014.
Though accused have challenged the order of framing of additional charge
by preferring Criminal Writ Petition Nos.1181/2014 and 1182/2014 in
Hon'ble High Court, vide its order dtd.27/03/2014, Hon'ble High Court has
declined to interfere in the said order and kept 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 FINDINGS
1. Whether the prosecution proved that accused
No.1-Vijay Jadhav, accused No.3-Mohd.Kasim
and accused No.4-Mohd.Salim have been
previously convicted by this Court on
148
20/03/2014 in Sessions Case No.914/13 for the
offence punishable under Section 376(D) of
I.P.C. in respect of the rape committed 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 :
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 in respect of which Sessions Case No.914/2013 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 accused to be the
same accused who were also convicted in Sessions Case No. 914/2013.
245. The prosecution has also examined the Assistant Registrar of
City Civil and Sessions Court, Shri Sugam Namdeo Redij, who has issued the
warrant of commitment on the basis of the conviction order and judgment
pronounced by this Court in Sessions Case No.914/2013. Exh.251 is the
photocopy of warrant of commitment in Sessions Case No.914/2013. 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.252. Three sheets of the thumb impressions of these accused are
marked as Exhs.253 to 255. Thus, he has again proved the identity of these
149
accused as the same accused, who were already convicted in Sessions Case
No.914/2013.
246. Section 298 of Cr.P.C. provides the mode to prove the previous
conviction or acquittal. It reads as follows :
298 Previous conviction or acquittal how proved- In any 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 certified under the hand of the officer having the
custody of the records of the Court in which such conviction or
acquittal was held, to be a copy of the sentence or order, or
(b) in case of a conviction, either 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 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 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 and order passed by this Court. The 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 also by the photocopy of the conviction slip. The identity of the
accused, as stated above, is also proved through the evidence of P.I.
Nikumbe who was the Investigating Officer in Sessions Case No.914/2013.
248. Thus, both the conditions which are laid down by Section 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 the submission made by learned Counsel 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. In considered opinion of this Court, it is absolutely
not necessary for the prosecution to prove it because when a specific mode
is provided in Section 298 of Cr.P.C. itself for proof of previous conviction,
which is by production 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 of the accused in Sessions Case No.914/2013.
250. Now coming to the various contentions raised by the defence
Counsels. The first and foremost contention raised by learned Counsel Shri
Moin Khan is that in the charge framed by this Court, the date of earlier
offence is not mentioned. However, this contention is not at all correct.
The charge framed at Exh.234 is very crystal clear and elaborate. It 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. Secondly, provisions of Section 211(7) of
Cr.P.C. requires the Court to mention the date and 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 in Sessions Case No.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 that the
charge under Section 376(E) of IPC should have been framed since
152
beginning. This contention is fallacious as 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 of Section 211(7) of Cr.P.C. make it very clear
that if such charge is not framed earlier, the Court may add it any time
before sentence is passed. The provisions of Section 236, especially, its
Proviso also make it clear that, if any charge of previous conviction is
framed by the Court, then that charge shall not be read out by the Judge nor
shall the accused be asked to plead thereto nor shall the previous
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.C. There are parallel provisions in respect of the warrant cases under
the Proviso of Section 248 of Cr.P.C.
252. The object of the Proviso in both the Sections is to ensure that
no prejudice be caused to the accused, if the Court frames such charge of
previous convictionearlier, even before arriving at conclusion of
conviction in this case. This fact is abundantly made clear in both the
Provisos and also in Section 211(7) Cr.P.C. Therefore 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
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previous conviction. Hence, this charge cannot be framed earlier.
253. It also needs to be stated that Section 376(E) of IPC which is
incorporated recently by Criminal Law Amendment Act, 2013 does not
create any separate independent offence. It only provides for enhanced
punishment to those offenders who have been previously convicted.
Therefore, it is not as such a separate offence . The provisions of Section 216
of Cr.P.C. relating to framing of additional charge will be and can be
invoked only when there is an independent separate 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 previously convicted. It is more like Section 75 of I.P.C. which
provides for enhanced punishment in respect of certain offences if
previous conviction is proved.
254. Therefore, by adding charge under Section 376(E) of IPC, 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 is held this Section 376(E) of IPC does not create 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 previously convicted as alleged in the
charge, the Judge may, after he has 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 when additional charge for a distinct and separate
offence is framed under Section 216(4) of Cr.P.C., statutory right is given
under Section 217 of Cr.P.C. to the prosecution and accused to recall, re-
summon or examine any witness in relation to additional charge. This
distinction has to be borne in between framing of additional charge in
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respect of previous conviction as contemplated under Section 211(7) of
Cr.P.C. and in respect of distinct offence under Section 216 of Cr.P.C.
Therefore, it will also not be correct to say that statutory right is conferred
upon the accused to recall or re-summon witnesses on framing of
additional charge of previous conviction. Only a discretion is vested in the
Court to see whether any additional evidence is required. The use of the
word may in Section 236 of Cr.P.C. makes it abundantly clear that the
Court has discretion. 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 reverting again to the contention of the learned Counsels
for the accused that for the offence under Section 376(E) of IPC., there
should have been separate FIR, separate charge-sheet etc., the said
contention is, also, absolutely not tenable because the very wording of
Section 376(E) of IPC provides that:
Whoever has been previously convicted of an offence
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.
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Hence, it does not create any independent offence. Section 376(E) of IPC
does not use the word offence so it cannot possibly be said that it requires
a criminal act after the first conviction. There is utterly no ambiguity in
that, therefore, lodging of separate F.I.R., separate charge-sheet is not
required at all. This argument is totally novel to the entire tenor of the Law
and Section.
259. Further contention that to invoke Section 376(E) of IPC.,
subsequent offence must have taken place after the first conviction, also
cannot be accepted on apparent reading of the 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
commits such offence again then only he can be liable for higher
punishment. Section 376(E) of IPC however is not stating so. 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 of that person's natural life. Therefore it is not expected
that after the accused undergoes the entire imprisonment of life or of
minimum twenty years, he will come out and will commit the same offence
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and then only Section 376(E) of IPC can be made 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 itself redundant.
260. Hence, if the constructive and purposive interpretation is to be
given to the provisions of Section 376(E) of IPC, then it follows that as soon
as previous conviction is recorded, at the time of pronouncement of
sentence in subsequent 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. The
words used in this Section are previously convicted and subsequently
convicted. Therefore they do not refer at all to the date of the offence,
either of the first offence or of the second offence. Therefore, from that
angle, it is also totally immaterial whether the conviction recorded in
Sessions Case No.914/2013 was in respect of the previous offence or in
respect of the subsequent incident.
261. What is relevant is when this Court is considering the aspect of
sentence in this case i.e. Sessions Case No.846/2013, there should be some
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judicial finding on previous conviction of the accused for this particular
offence. That condition which is laid down in Section 376(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 convicted is satisfied. The stage of considering
the sentence in this case arose on 21/03/2014. On that day, this Court was
to consider what should be the quantum of sentence and on 21/03/2014,
there was previous conviction recorded by this Court on 20/03/2014 in
Sessions Case No.914/2013. Therefore, the necessary condition laid down in
Section 376(E) of IPC is definitely satisfied.
262. Further argument advanced by defence Counsels that this Court
has simultaneously pronounced the convictions in both the cases and
therefore, conviction in Sessions Case No.914/2013 cannot be 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 Case No.914/2013 and thereafter, this Court has first pronounced
the conviction in Sessions Case No.846/2013. In cross-examination 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
minutes thereafter, the conviction in Sessions Case No.846/2013 was
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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 conviction. Section 376(E) of IPC is
conspicuously silent on this aspect. It does not lay down any time gap
between previous and subsequent conviction. Hence, previous
conviction may be one day before, may be few minutes before or 10 years
before. The fact that it is previous conviction is sufficient. If previous
conviction is just few minutes before also, it attracts Section 376(E) of IPC.
264. If it was the intention of the Legislature that the previous
conviction should be some days or some years or some decades before,
Legislature would have said 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, when this Court was
considering the quantum of sentence in this case, there was already
previous conviction recorded in Sessions Case No.914/2013 on
20/03/2014.
265. In this respect, as rightly pointed out by Spl.P.P., the provisions
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of Section 354(1)(c) of Cr.P.C. are very relevant. Section 354 deals with the
language and contents of judgment. It provides that 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 and the punishment to which he is sentenced. Therefore, sub-
clause (c) of Section 354 makes it clear that judgment is not complete unless
a sentence is pronounced. Hence, the two integral parts of the judgment
are, one, the finding on conviction and second is the sentence aspect.
266. Herein the case, on 20/03/2014, the Court has pronounced the
judgment in this case only as regards the conviction which is sufficient so
far as attracting the charge under Section 376(E) of IPC. Hence 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 376(E) of IPC is framed by this Court on 24/03/2014. At that
time, the judgment in this case was not complete. Whereas the judgment in
Sessions Case No.914/2013 was complete on 21/03/2014 itself and,
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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 of argument is against the facts of the case, against the 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
pronounced on 20/03/2014 in Sessions Case No.914/2013 and 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 completed the
pronouncement of judgment in this case because this Court has yet to
decide the quantum of sentence. Therefore this is totally untenable
argument that this Court has pronounced both the judgments
simultaneously, as this argument does not stand the test of legal scrutiny.
267. Further submission advanced by defence Counsel is about the
meaning of the term repeat 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. According to him, only
when the undesirable conduct is repeated, after the person has been
punished for such undesirable behaviour, he can be called as repeat
offender. In my considered opinion, in the first place, this definition of the
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word repeat 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 the sentence in Section 376(E) of IPC. But, 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
dictionary cannot be made applicable when the Court is dealing with
statutory provisions. Needless to state that while drafting legislation, each
and every word is used with utmost care by Legislature. Atleast Court has to
proceed on that basis and to ensure that the object of the said provision is
achieved and that provision itself should not become redundant and
meaningless.
269. Moreover, Section 376(E) of IPC nowhere says that accused
should be repeatedly doing the offence. If it was the intention, Legislature
would have said so but that is again not done. Hence, the term repeat
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offender also does not imply in the context of present Section that accused
should have been convicted more than once. It it was so, in the Section
itself instead of using the term previously convicted, the legislature would
have used the word repeat offender or would have said 'convicted more
than once, twice, thrice and so on'. Legislature has not done so. Hence,
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 discussion. It is not brought all of sudden as such. Despite that, if
Section 376(E) of IPC itself not lay down that accused should have
committed the offence prior to committing this offence or he should have
committed the subsequent offence after previously undergoing the
punishment for the same offence, or he should have been convicted
repeatedly, then it is not permissible to interpret the provisions of Section
376(E) of IPC in that context. The Legislature has simplicitor laid down that
if he is previously convicted then on subsequent conviction, he will be
dealt with enhanced punishment. So this Court has to read this 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
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in Sessions Case No.914/2013 on 20/03/2014 and quantum of sentence was
fixed on 21/03/2014. Hence on the date when this Court was considering
the quantum of sentence as regards offences in this Sessions Case No.
846/2013, there was previous conviction in Sessions Case No.914/2013 and
subsequent conviction recorded in this case. Therefore, necessary
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 regards the two authorities relied upon by Spl.P.P. firstly, of
our own High Court in Gulab Gaibu Shaikh V The State of Maharashtra
pertains to the consecutive sentences in respect of the judgments
pronounced on the same day. The other case Deal V. United States, October
Term 1992 is decided by United States Court of Appeals wherein also the
provisions relating to 'enhanced punishment' in respect of the accused who
are previously convicted were for deliberation and decision before the
United States Court of Appeals. It was held that the particular provision
cannot be read to impose an enhanced sentence only for an offence
committed after a previous sentence has become final. It was further held
'conviction' unambiguity refers to the finding of guilt that necessarily
precedes the entry of a final judgment of conviction. If the statute does not
use the term 'offence', it does not require criminal act after the first
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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 and was ultimately tried for all the six offences in a single
proceeding. He will be still liable for enhanced punishment on the ground
of being previously convicted though in a single proceeding. This authority
though cannot be binding, it is referred to support and buttress the
conclusion arrived at by this Court and also to show that the statutory
provisions are to be interpreted in such a way that they can become
meaningful and not redundant.
272. Even devoid of these two authorities also, in my considered
opinion, this Court has already dealt with the provision of Section 376(E) of
IPC, its import, its purport, the object of the Legislature, how the
proceedings in this case are conducted and how this Section has became
hence applicable.
273. As rightly submitted by Learned Spl.P.P. that this provision is not
only meant for repeat offenders but it is also meant to send a strong
message to the society, especially to the like minded persons to deter them
from committing such offences and, therefore, it is not relevant, how may
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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. According to me from this aspect also, the provisions of Section
376(E) of IPC are required to be 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 of framing of additional charge, this Court gives the finding that
prosecution has succeeded in proving the charge under Section 376(E) of
IPC against accused No.1 Vijay, accused No.3 Mohd. Kasim and accused No.
4 Mohd. Salim.
275. Now the question comes about the quantum of sentence, 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 to both the parties to advance submissions on the quantum of
sentence. Hence, further judgment is reserved till tomorrow for hearing
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on the quantum of sentence.
(Dr.Mrs.Shalini S. Phansalkar-Joshi)
3/4/2014 Principal Judge, Bombay City Civil Court
& Sessions Judge, Gr.Bombay.
Resumed on 04/04/2014 :-
Submissions on Sentence :-
276. On the question of sentence, this Court has heard the accused
Nos.1 to 4 in person. It is submitted by accused No.1-Vijay that his family
consists of his parents and one handicapped brother. After this incident,
they have been removed from the rented house at Virar and are staying on
the pavement outside the jail. He has also examined on oath, his mother
Pramila Jadhav who has stated that she is doing the work of maidservant.
Though her husband is doing service in Municipal Corporation, he is
addicted to alcohol. As both of them used to be out of house, they could not
give sufficient attention to their children. Due to poverty, they could not
educate theirs sons and hence, both accused No.1 and his mother have
requested the Court to take a lenient view and impose minimum
punishment, having regard to his young age also.
277. Accused No.2-Siraj has also advanced similar submissions when
I heard him on the question of sentence. He is having his mother and young
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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. Kasim has submitted that his mother,
brother and younger sister are the only members in his family and without
him around, there will be none to look after them. Hence, 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.4-Mohd.Salim has stated that his old mother, wife,
two children are dependent on him. He has also examined his widowed
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 sum and substance, therefore, the submission of all the four
accused is that having regard to their young age, very poor strata of the
society from which they hail, their socio-economic condition, 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.
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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
declined to advance arguments and further filed even application for
permission to withdraw from the case, after the Spl.P.P. has commenced and
completed half of his arguments.
Conduct of Defence Counsels :-
282. At this stage, this Court cannot restrain itself from making
certain observations which are really unpleasant. It is really unfortunate to
note the conduct of defence counsel for accused No.1 Shri Prakash
Salsingikar and accused No.4 Shri Moin Khan. They have not left a stone
unturned in delaying the trial, from filing Transfer Application against this
Court, requesting the Court, to recuse itself and at the last moment
withdrawing their appearance. It is despite the fact that as per newly
introduced provisions of Criminal Law (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
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and of the intention of this Court to comply with that direction. But since
beginning attitude adopted was, non-cooperative, keeping the Court,
Spl.P.P. and most importantly witnesses waiting till they arrive in the Court
at their own time. It may be 11.30 or 12 O' clock also. The record of the case
is self speaking to reveal how witnesses were harassed by asking irrelevant
questions and when refused, moving Transfer Application, how defence
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, Hon'ble High Court in Criminal Application No.697
of 2013 dtd.03/01/2014 was pleased to observe that, despite every
opportunity being afforded to defence Counsels, they have repeatedly made
applications for stay of proceedings. As a matter of fact, Hon'ble 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-tracked and requires to be decided in the shortest possible 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
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trying to delay or stymie the progress of trial on one ground or the other, the
filing of the applications as letters seems, at the very least, questionable.
284. In the end, Hon'ble High Court, after taking note of 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 thereafter at each and every stage, vague applications 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 to cite one instance, taking advantage of the 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
photographer, Panch, prosecutrix's mother, her superior officer, can be
relevant as regards charge of previous conviction, it was not answered at all.
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Though Court allowed the application partly, he refused to cross-examine
the witness.
286. The entire endeavour on their part was to make such
applications, which they were also sure, would not be granted or not
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 Sessions Case of previous conviction of these accused
also, though this Court was posting the matter for judgment on 18.3.2014 or
19.3.2014., they 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 also, learned Counsels for accused Nos.1, 2 and 4 came to
Court at 11.40 a.m. though since 11.00 a.m., the Court and Spl.P.P. were
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waiting for them. Then, they gave application for adjournment to engage
Senior Counsel for advancing arguments. The prosecution has strongly
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 circumstance. When Spl.P.P. 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 ready. Then Counsel for accused No.4 also gave an
application to examine mother of accused No.4. It was also allowed. 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.
has started advancing his submission and mostly completed. Thereafter
defence Counsel filed application for withdrawal from appearance.
289. Normally this Court or any Court for that matter would 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
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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 some more obstacles in delivering of justice by stymieing
the trial and making some more applications in between 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
opportunity or fair trial. This application for seeking adjournment 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 can promptly withdraw their appearance and in appeal they will
automatically get the right of remand.
290. If the accused or their Counsel really wanted to engage 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 and advance submissions. This
Court would have then adjourned the matter as the request would have
appeared bonafide. But that is not the case. In the criminal trial, the
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Advocate cannot withdraw his appearance. As a matter of fact, it is his duty
to proceed with the case and assist the Court. But they are not bothered.
This court is really at pains to observe this conduct of defence Counsels,
which, as submitted by Spl.P.P,. does amount to professional misconduct, for
which Bar Council needs to do something.
291. Let it be put on record that it is for the first time, this court 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 they are discharging that duty. These 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 down in various Statutes like Proviso of Section 309 of Cr.P.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 to day basis.
292. However, though learned Counsels for accused Nos.1, 3 and 4
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have stated that they will not argue on the point of sentence, 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.
Submissions of 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 of death. At the outset itself, he has 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 provisions of Section 354(3) of Cr.P.C. which were
introduced, by way of amendment, for the first time in 1973, enjoining upon
the Court to give Special reasons for awarding death penalty. Then he has
pointed out the landmark decision of the Apex Court in the case of Bachan
Singh V State of Punjab (1980)2 S.C.C.684 which lays down that life
imprisonment is the rule and death penalty is an exception and also lays
down the criteria as to when the case can be called as rarest of rare.
Further he has relied upon another landmark decision of Apex Court in the
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case of Machhi Singh & Ors. V State of Punjab (1983) 3 S.C.C .470 in which
the law laid down by the Constitutional Bench in Bachan Singh case was
further elaborated by Three Judge Bench and it was emphasized that, the
Court should draw a balance sheet of aggravating and mitigating
circumstances and, thereafter giving maximum weightage to mitigating
circumstances, arrive at an appropriate decision by finding out on which
side the balance tilts.
294. Learned Spl.P.P. has also taken this Court through the evidence
adduced on record and has pointed out that there are as many as ten
aggravating circumstances in this case, justifying no other punishment
except death penalty, whereas according to him, there are no mitigating
circumstances at all. According to Spl.P.P. those 10 aggravating
circumstances are as follows :
1) Accused being habitual gang rapists;
2) Criminal mentality of the accused;
3) Offence being the result of criminal conspiracy, executed
with pre-planning;
4) Mental attitude of all the accused treating victim as prey
and they as hunters;
5) Various pervert sexual acts of assault committed by them
individually;
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6) When the victim was requesting with folded hands,
accused boasted that they have committed many such
rapes but no one has touched them;
7) Enjoying pain and agony of the victim and also her
helplessness;
8) The offence being diabolically executed,
9) Depravity of the manner, exceptionally cruel attitude
while committing the offence;
10) Unscrupulous attitude and total disregard for human life.
295. According to him, he has never come across any such situation
or case where the offence is committed in the most ruthless and merciless
manner. He has further submitted that deserving persons are to be
condoned and undeserving are required to be condemned, which is
fundamental policy of law. Further relying on the Salmond's 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 rape is
an offence which is fundamentally and materially different from other
offences. It leaves permanent scar on the victim. According to him, injury
to the body can be healed but injury to the mind and honour of the victim
can never be healed. Hence, Legislature has also incorporated the
minimum punishment of life imprisonment which shall mean to remainder
of that person's natural life and maximum punishment of death penalty.
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296. As regards mitigating circumstances, he has submitted that,
1) Accused cannot take the advantage of their young
age because various acts committed by the accused
reveal that they were mature enough to be pervert;
2) They have no remorse or repentance of the acts
committed by them;
3) There are no chances of reformation for them as they
have already misused the opportunity of reformation
given to them by Juvenile Justice Board;
4) The acts committed by them cannot be morally justified;
5) There was no question of duress or compulsion for them
to commit such acts;
6) There is also no evidence of extreme mental disturbance
for them to justify these acts;
7) Social economic conditions of the accused can never be a
mitigating circumstance in view of various decisions of
higher Courts.
297. In his words, the accused are sex starved wolves in human.
Hence, they deserve the maximum penalty of death. He has urged that a
strong message is required to be sent to the society at large and also to the
like minded persons by giving maximum punishment of death as any
leniency, if shown to the accused will be misplaced and will be mockery of
the Justice. Ultimately, he has summed up by stating that this 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
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option of life imprisonment being unquestionably foreclosed.
298. He has thus, thrown light on all the perspectives, those in favour
of prosecution and also those which the defence could have shown in their
favour, by advancing comprehensive and exhaustive submissions to enable
the Court in arriving at proper decision of the sentence. As I will be dealing
with each of 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 :-
299. Before embarking on the discussion, I am emphasizing that
merely because the defence Counsels for accused Nos.1, 3 and 4 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.
300. The most crucial stage in every criminal proceeding is the stage
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of sentencing. It is the most complex and difficult stage in the judicial
process. The Indian Legal System, as observed by the Apex Court in the case
of Shimbhu & Anr. V State of Haryana 2013 ALL MR (Cri) 3306 (S.C.), confers
ample discretion on the Judges to levy the appropriate sentence. 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
considering the question of sentence as to whether it should be the
minimum which is life imprisonment or the maximum which is death
penalty, as demanded by Spl.P.P., then the duty of the Court becomes far
more onerous, in view of the law of land that life imprisonment is the rule
and death penalty is an exception, to be awarded only in rarest of rare
cases. This Court has, therefore, to ensure that this case falls in the
exceptional category of rarest of rare case. Fortunately this Court is having
sufficient guidelines laid down by the higher courts on this aspect, in
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addition to the statutory provisions. As rightly submitted by Spl.P.P. after
1973, by way of amendment in Section 354(3) of Cr.P.C. for the first time the
Legislature has enjoined upon the Courts to give 'special reasons' for
awarding death penalty.
302. The first landmark decision on the point which summarizes the
law on the question of capital punishment is that of Bachan Singh V State
of Punjab (1980) 2 S.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 death sentence is
an exception. In other words, death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
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
circumstances has to be drawn up and in doing so 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 the mitigating circumstances before the option is
exercised.
303. In the words of the Apex Court, as laid down in Bachan Singh,
there are certain mitigating circumstances in every case. Similarly, there are
aggravating circumstances also. The Apex Court has listed 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) if the murder involves exceptional depravity
304. So far as mitigating circumstances are concerned, the Apex
Court has laid down that Court shall take into account following
circumstances namely,
(1) extreme mental or emotional disturbance;
(2) the age of the accused. If the accused is young or old, he
shall not be sentenced to death;
(3) the probability that accused would not commit criminal
acts of violence as would constitute a continuing threat to
society;
(4) the probability that the accused can be reformed and
rehabilitated;
(5) that in the facts and circumstances of the case the accused
believed that he was morally justified in committing the
offence;
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(6) the accused acted under the duress or domination of
another person;
(7) that the condition of the accused showed that he 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 that these circumstances are not 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 determine the 'rarest of rare' case in which death sentence can be
inflicted :
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a
death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender?
306. In this authority, the Apex Court had laid down following five
criterias as parameters for the assistance of the Courts in determining
whether a case falls in the category of 'rarest of rare'
I. Manner of commission of murder.
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II. Motive for commission of murder.
III. Anti-social or socially abhorrent nature of the crime.
IV. Magnitude of crime.
V. Personality of victim of murder.
307. Since then on umpteen number 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 to award death penalty in deserving case by holding
that it will be for the Legislature to decide whether death penalty should
remain on Statute Book or not. But so long, it is on the Statute Book, Court
cannot abdicate its duty in awarding it in deserving cases. For example in
the case of Ajitsingh Harnamsingh Gujral v. State of 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 of the legislature. The very fact that it has been 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.
308. In 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 to be awarded in the rarest of rare cases
when the alternative option (of life sentence) is unquestionably
foreclosed. Now, as long as the death penalty remains on the
statute book as punishment for certain offences, including
waging war and murder, it logically follows that there must be
some cases, howsoever rare or one in a million, that would call
for inflicting that penalty
309. Emphasizing on the aspect of adhering proportionality between
the gravity of the offence and sentence to be imposed without loosing the
sight of criminal and victim also, in Sangeet & Anr. V. State of Haryana, (2013)
2 SCC 452, the Apex Court noted that the Constitution Bench in Bachan
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 Sandesh alias Sainath Kailash Abhang vs. State 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
reasons as contemplated under Section 354(3) CrPC for
imposing death penalty but it is also the criminal, 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 to be examined. The doctrine of rehabilitation and
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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, after noting the law laid
down in Bachan Singh 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,
Machhi Singh and Devender Pal Singh emphasized that criminal law
requires strict adherence to the rule of proportionality in providing
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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 court has to consider whether any other punishment
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
diabolic nature differ in each case. Circumstances under
which murders take place also differ from case to case and
there cannot be a straitjacket formula for deciding upon
circumstances under which death penalty must be awarded. In
such matters, it is not only the nature of crime, but the
background of criminal, his psychology, his social conditions,
his mindset for committing offence and effect of imposing
alternative punishment on the society are also relevant
factors.
314. In Mahesh V State of M.P. (1987) 2 SCR 710, 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
escape the extreme penalty of law when faced with 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 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 these challenges. 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
should be. Even though the principles were indicated in the
background of death sentence and life sentence, the logic
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
against women, dacoity, kidnapping, misappropriation of
public money, treason and other offences involving moral
turpitude or moral delinquency which have great impact on
social order and public interest, cannot be lost sight of and per
se require exemplary treatment. Any liberal attitude by
imposing meagre sentences or taking too sympathetic view
merely on account of lapse of time in respect of such offences
will be resultwise counterproductive in the long run and
against societal interest which needs to be cared for and
strengthened by string of deterrence inbuilt in the sentencing
system.
316. In Ankush Maruti Shinde vs. State of Maharashtra, (2009) 6
S.C.C. 667, the Apex Court has held that :
The law regulates social interests, arbitrates conflicting
claims and demands. Security of persons and property of the
people is an essential function of the State. It could be
achieved through instrumentality of criminal law.
Undoubtedly, there is a cross-cultural conflict where living
law must find answer to the new challenges and the courts are
required to mould the sentencing system to meet the
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challenges. The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of order
should meet the challenges confronting the society. Friedman
in his Law in Changing Society 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
sentencing system, law should adopt the corrective
machinery or deterrence based on factual 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
commission of the crime, the conduct of the accused, the
nature of weapons used and all other attending circumstances
are relevant facts which would enter into the area of
consideration.
317. As observed by the Delhi High Court in the recent case of
Nirbhaya case in Delhi Case Reference No.06/2013,
Courts of law have been faced with the eternal strife between
the humanistic approach reflected in death sentence-in-no-
case 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 death penalty. The present position regarding capital
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, but it is
equally true that barbariac rapes and heinous murders have
become the order of the day and inadequate punishment may
lead to the sufferings of the community at large. Society s
abhorrence to the atrocious crimes perpetrated upon innocent
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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.
Findings of this Court :-
318. This Court is fully aware that all these authorities pertain to the
offence of murder or of rape when it is coupled with murder. It is bound to
be so, because prior to Criminal Law (Amendment) Act, 2013, the maximum
punishment for offence of rape, prescribed under the law, was
imprisonment for life. For the first time, after the incident of '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 and stringent, changed the entire law relating to sexual offences and
rape, having regard to ever rising incidences of sexual offences against
women. The Committee chaired by late Hon'ble Justice 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 was brought into effect from 03/02/2014, making several drastic
changes in the law relating to sexual offences and rape, which were
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considered to be the need of the hour.
319. It is pertinent to note that though Justice Varma Committee has
not suggested the penalty of death for offence of rape simplicitor, it has
approved the same in case of extreme brutality, like when victim 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 Amendment Act came into force, it is for the first 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 in India. Hence this Court is not having the benefit of any
judicial pronouncement of Supreme Court or High Court directly on this
issue. This court is hence, proceeding on the 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 for imposition of death sentence will always remain the 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
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Cr.P.C. which requires the Court to write 'special reasons' while awarding
death and they are also found in the above said authorities of the 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
not is yet open. Similarly whether or not death penalty serves any
penological purpose is also, as observed by Apex Court in the case of
Bachan Singh, a difficult, complex and intractable 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 view of law laid down in above said decisions of the Apex
Court and Hon'ble Delhi High Court, this Court is now drawing the balance-
sheet of aggravating and mitigating circumstances and after giving
maximum weightage to the mitigating circumstances, will arrive at the
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decision of appropriate punishment.
323. Therefore, when this Court is considering to draw the balance-
sheet of the aggravating and mitigating circumstances, the Court has to go
to the facts of the case.
AGGRAVATING FACTS :
I) The preplanned manner :-
324. As regards the aggravating circumstances, then the first and
foremost circumstance, as rightly pointed by learned Spl.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 by
lust, have committed the offence but this is a case where the accused, acting
in pursuance of criminal conspiracy, committed this most gruesome offence
of gang rape.
325. The said fact is gathered and established from the evidence of
P.W.36-Aakash Swamy with whom the accused Nos.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 by accused
No.3-Mohd.Kasim, he said on phone, Bol Salim kya ho gaya?. 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 Sirju shikar aa gaya hai. When the witness Aakash Swamy asked
accused No.3-Mohd. Kasim as to where they were going, accused No.3-
Mohd.Kasim said to him, Shikar aaya hai, shikar ko jana hai. When the
witness asked him, Kiske shikar pe jana hai, accused No.3-Mohd Kasim
said, Hiran ke shikar pe jana hai.
326. The call detail records of the mobile calls exchanged between
the accused also corroborates that accused had executed this offence in a
preplanned manner. The use of the code language like shikar or 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 also the evidence of prosecutrix in this case, who has
stated that, in her presence, accused No.3-Mohd.Kasim shouted calling
other accused by saying, "yaha aao, shikar aaya hai." This evidence clearly
goes to show that it was not a sudden act but accused were acting in
pursuance of the conspiracy. The charge of criminal conspiracy is already
held proved against them by clinching evidence on record. It is also
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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 sure of executing this offence also. Therefore, the
manner in which the offence has taken place i.e. in pursuance of criminal
conspiracy, in a preplanned manner, is one of the aggravating
circumstances.
II) The diabolical manner :-
328. It is pertinent to note that, in this case the prosecutrix and her
companion P.W.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 donoka kuch karna padega"
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and then all of them started laughing.
329. This entire conduct of the accused clearly spells out that, 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 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-with-
law 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 in deserted place of 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' and considering themselves as 'hunters'. It shows that they
have scant or no respect at all for a girl or womanhood. They are
considering the girls as objects of enjoyment.
330. Further conduct of accused of threatening the prosecutrix 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) Repetitive nature of the offence:-
331. As I said earlier, accused were embolden, as according to 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. However, nobody has touched them. As a matter of fact, these
two cases also would have gone unnoticed. Only because, in the first case of
Telephone Operator, as her mother has lodged the Missing Complaint, the
offence came to light. Whereas in this case, the injuries sustained by the
prosecutrix were so severe that she had to rush to the Jaslok Hospital and
most importantly, she took the bold stand of lodging the complaint. Hence,
it came into light.
332. The conduct of the accused in the entire incident of 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 and they have further exhibited least regard for law and order.
Conversely they challenged the very law enforcing agencies. This defiant
attitude of the accused, extreme deviation from normal conduct constitute
aggravated factor.
IV) Extreme Perversity :-
333. The next aggravating circumstance, as pointed out by Spl.P.P. is
extreme perversity and brutality in the manner of commission of the
offence. It is not a case of simplicitor rape or gang rape or accused
committing the rape in usual traditional way of having forcible vaginal
intercourse with prosecutrix but they have indulged into several 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 committed by each one of them in their
individual perverse way. As evidence shows, accused No.1-Vijay compelled
her for masturbation by asking her to hold his penis in her hand and also
committed rape. Whereas accused No.2-Siraj has forced her to oral sex
though she vomited and also to vaginal rape. Accused No.3-Mohd.Kasim
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-Mohd.Salim has
shown her the pornographic clip and compelled to do as shown in the
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pornographic clip. She was also subjected to oral 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) Exceptional depravity and brutality :-
334. These acts of accused are also not only limited to pervert acts of
sexual assault but the conduct of these accused during this entire incident is
also proved to be of exceptional depravity. As stated by prosecutrix herself,
accused were laughing when she was pleading with them with folded hands
and requesting for mercy. Though she was again and again asking them to
allow her to go, the accused did not allow her to go. They were not only
enjoying the act of sexual assault but they were enjoying her helplessness.
There is evidence of prosecutrix herself to the effect in which helpless
condition she was reduced. In paragraph 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 rape and
unnatural sex with me. They did not show any mercy on me. There is also
her evidence that when she was pleading with accused No.3-Mohd.Kasim to
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let her go because she was bleeding and having lot of pain, he started
laughing. He 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 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. When she pushed him away, he got very angry and said,
"main aapko dikhata hoon." Then he punched on her back and forced her
to sit on her knees and inserted penis in her anus.
335. This conduct of accused is not of simplicitor rape as 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
victim. The accused have totally violated all the cannons of human
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 regards the submissions of defence Counsel that 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 extent arguments are advanced in such cases of gruesome
incidents. It has to be stated that though the 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 medical evidence, which I need not go into again, shows
the extent and gravity of the injuries which were caused to the private parts
of the prosecutrix i.e. vagina and anus. Hence, it can hardly be said that
they have not caused grievous hurt. The trauma which the prosecutrix has
faced, the agony which she has undergone is witnessed by the Court at the
time of recording of her evidence which continued for two 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 accused. It can hence hardly be said that she has not suffered
any hurt or injury in the incident. The trauma and pain which she has
undergone during this entire incident is unparallel and beyond words to
narrate.
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338. There is also definitely something uncommon in the offence.
The gravity of the injuries was such that from the spot of incident, she has
to rush immediately to Jaslok Hospital in taxi. Therefore, it cannot be said
the nature of injury was simple. She has to be administered pain-killer, as
stated by Doctor. The recording of her complaint went on in 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 subjected to, she may not find easy to
forget, even if she tries to forget it. Therefore, here this 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 or the exceptional depravity on the part of the accused. The entire
conduct of the accused throughout the incident shows the depravity of their
character and also their incorrigible attitude.
VI) Anti Social or Socially abhorrent nature of the crime :-
339. No need to state that if at all any crime is anti-social, then it is
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rape and if socially abhorrent then it is, gang rape, that too committed in a
systematic, diabolical and pervert manner, with pre-planning and
conspiracy.
VII) Incident Shocking to the collective conscience of Society:-
340. Apex Court has in several of its authorities like Dhananjoy
Chatterjee 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 is yes, then the accused deserves death penalty. In Machhi
Singh also, Apex Court held the death penalty may be imposed when
society's collective conscience is shocked, it will expect the 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 the question is whether this incident of gang rape has
shocked the collective conscience of society? The answer is emphatic 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. It is not that earlier to this incident or after this
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incident, rapes and even gang rapes have not taken place. But what was
found shocking in this incident was the planned manner in which offence
was executed, and that too with utmost perversity and depravity, in a
repeated manner on helpless girls. The fact that this incident has happened
even before the uproar and anguish created by Nirbhaya incident 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 crime is enormous as it has put the safety of entire women
hood at stake. This incident created a dent in the belief that Mumbai is still
a safe city for women. The fact that in the heart of the city, like 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 to one and all. It created a feeling of helplessness in parents, in
women, in girls and in every section of society. The entire sequence of
events created a fear psychosis and left a scar on the social order and
became a burning social issue. Social abhorrence and the national shock
created by this incident was just parallel to the one evoked by Nirbhaya
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incident in Delhi. In that case victim was not left alive. In this case, the
victim is left alive but society is yet to recover from the 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 is shocked, the Courts must 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 and Enormity of Crime :-
343. It is the society's abhorrence to such crimes of gang rapes, 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 of gang rape. Society wants to put an end to this menace. 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 376 or 376(A) of IPC. Here these accused
Nos. 1, 3 & 4 are previously also convicted individually and read 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 remainder of their natural life. Now, 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 the previously convicted case, accused Nos.1, 3 and 4 are
already sentenced to 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.
345. The present case thus satisfies the four aggravating 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) intense and extreme indignation of society. (ii) demonstration 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 this aspect, the only mitigating circumstances pleaded are of
young age of the accused, their social-economic conditions and
dependency of their family members.
I) Young Age of the Accused :-
347. As a matter of fact, for the offence of rape and especially of gang
rape, the young age of the accused cannot be a mitigating circumstance at
all. Apex Court in its various authorities, held that young age cannot by
itself be a decisive factor to reduce punishment.
348. However, as this Court is considering the option of death
penalty in view of the law laid down in Machhi Singh, this mitigating
circumstance is also being considered.
349. In respect of imposition of death penalty also, the Apex Court
has time and again, emphasized that the young age of the accused 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 Spl.P.P. has also relied upon the two authorities, one
that of Jai Kumar V State of M.P. 1999 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 young age of the accused was also advanced as 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 that is the relevant factor which the Court has to consider while
imposing the appropriate punishment and the Apex Court has affirmed the
death penalty.
352. In ample number of authorities like (i) Mohammed 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) 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. The cumulative circumstances have to be taken 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 point therefore to be stressed is that young age of 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 and maturity, he will not commit
the offence of gang rape, in pursuance of criminal conspiracy which was
hatched and which is evident from the record of the case. Therefore, here
the young age of the accused cannot be called as mitigating factor.
354. The very fact that the accused can commit the act of rape and
that too in such a brutal manner negatives the possibility of their
improvement 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 herein the case, accused though young are proved to
be habitual offenders. It is pertinent to note that even in above 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? However even if a cursory glance is given
to the facts of the case discussed above, it cannot be said that accused are
having any mindset for reformation. If they had such mindset and desire,
they would not have repeated the act of gang rape. If they had desire, they
would have improved their conduct when two of them i.e. accused No.1-
Vijay and accused No.3-Mohd.Kasim were already held guilty by Juvenile
Justice Board twice each, for the offences of theft and were released on the
bond of good behaviour. The prosecution has brought on record 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, accused No.3-
Mohd.Kasim has committed these two offences and this time they are more
serious offences of gang rape.
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357. Even as regards accused No.1-Vijay, it is brought on record by
learned Counsel for accused himself, in the cross examination of
prosecution witnesses that he was also held guilty in two cases filed against
him before Juvenile Justice Board for committing the offence of theft. Thus
both accused No.1-Vijay and accused No.3-Mohd.Kasim were given the
opportunity of reformation. In tune with the very object of the J.J.Act that
the young offenders should get an opportunity to reform, instead of
sentencing them to any imprisonment or any deterrent punishment 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 stage, it may also be stated, this Court is aware of the bar
laid down in Section 19 of the J.J.Act to the effect that :
19. Removal of disqualification attaching to conviction.- (1)
Notwithstanding anything contained in any other law, a
juvenile who has committed an offence and has been dealt with
under the provisions of this Act shall not suffer disqualification,
if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant
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 Spl.P.P. this disqualification is only in respect of service
matters and not for other aspects. As a matter of fact, 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. However, as regards accused No.1, this evidence is brought on
record by accused No.1 himself through the evidence of his mother and
through the cross-examination of 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. Thus, accused 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 considered opinion of this Court, even if the evidence of their
being held guilty by Juvenile Justice Board is excluded from consideration, it
does not make much difference. That evidence was relevant only to show
that accused are not having any chances of reformation. This fact is neither
considered as aggravating or mitigating circumstance in any of the
authorities referred above, when even in the absence of any evidence
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 the instant case, there is evidence on record 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 about it in this incident. Their incorrigible attitude, no remorse or
repentance exhibited at any time during trial, also totally removes any
possibility of their reformation.
362. With the growing age, the accused have become worse. The
moment they became major, they started indulging in sexual offences. It is
not just meticulously choosing place of offence i.e. the deserted and defunct
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 that accused are no more young. Therefore, it cannot lie in 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 question is how may times such opportunity is to be 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 is important, lives of
these girls and their families, who for no fault on their part suffered or will
continue to suffer, is also important. Rights of society and victims, the stake
in maintenance of law and order, efficacy of Judicial System are also equally
and far more important. Society's cry for justice has to be answered. How
can one expect society to silently suffer such attacks on their women,
mothers, daughters, grand-daughters? Somewhere it has to stop.
II) Socio-economic status of the accused :-
364. Again though it is not a relevant consideration for deciding
quantum of sentence in rape cases, as accused Nos.1 and 4 have led
evidence of their mother on this aspect, I am considering it.
365. In the authority of Shimbhu & Anr. V State of 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 accused or victim are irrelevant considerations in
sentencing policy. Protection of society and deterring the
criminal is the avowed object of law and that is required to be
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achieved by imposing appropriate sentence.
366. In the case of State of Karnataka Vs. Krishnappa (2000) 4 SCC 75
the Apex Court has held that, The measure of punishment in a case of rape
cannot depend upon the social status of the victim or the accused. It must
depend upon the conduct of the accused, the state and age of the victim and
gravity of the act. Crimes of violence against women need to be severely
dealt with.
367. Learned Spl.P.P. has also relied upon Sevak Perumal & Anr. V
State of Tamil Nadu 1991 S.C.C.(Cri) 724 in which also, the Apex Court has
held that, the grounds like accused are the bread winners or their family is
consisting of minor children and age old parents and, therefore, death
sentence may be converted into life cannot be accepted because 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 of reformation which are advanced as mitigating circumstances
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cannot be invoked in this case, in view of the discussion held above.
Accused had the chance of reformation. They had the young age to their
advantage but they have misused the same. Therefore, the mitigating
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) Other Mitigating Factors :-
369. It is also not a case where accused have committed the offence
under any duress or under any compulsion. On the contrary, they were
enjoying the entire incident as such, as stated above. They were also not
morally justified in committing this heinous act of gang 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 is a case where accused were totally unprovoked. There is nothing
either on the part of prosecutrix or her companion doing any act to subject
them to such brutality. On the contrary, prosecutrix and Anurag were
pleading again and again to allow them to go. They were also 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 :-
370. Therefore in answer to the question whether the death or 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 factors far outweigh the 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, the Court has to respect the legislative wisdom, as
stated by the Apex Court itself. The Court has to ensure that punishment is
commensurate with the gravity of the offence. The Court has to keep in
mind that if, the Legislature in its wisdom has prescribed, either the life
imprisonment or death penalty for the repeated offenders, then the
Legislature has definitely in mind that there will be some cases where the
minimum punishment of life imprisonment will not be sufficient because
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the facts of such case will demand that Court should go above and beyond
the life imprisonment and impose death penalty.
372. As observed by the Apex Court in the case of State of M.P. V Bala
alias Balaram AIR 2005 S.C. 3567 held that:
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. It is necessary for the Court therefore to imbibe the
Legislative Wisdom and respect it. Court has to consider
plight of victim in a case involving rape and social stigma that
may follow 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.

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.) also, the
Hon'ble Supreme Court held that in incidents of gang rape, no leniency
should be shown by the Court. A three Judge Bench of the Hon'ble 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.C. giving discretion to the Court of giving less than minimum
punishment for adequate and special reasons but in the wake of
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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. 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
and High Courts have reduced the sentence of the accused to
the period already undergone to suffice as the punishment, by
taking aid of the proviso to Section 376(2) IPC. The above
trend exhibits stark insensitivity to the need for 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 :
T o 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.
374. The Apex Court has, thus, always emphasized on
proportionality between sentence to be imposed and the gravity of the
offence and considered the offence of rape as grave one and call for
stringent punishment. According to Apex Court, gravity of the offence of
rape and the punishment imposed for should commensurate with each
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other, otherwise the law will loose its binding and deterrent effect.
375. In the case of Union of India V Devendra Nath Rai (2006) 2
S.C.C. 243, the Apex Court has further elaborated on the aspect of
punishment by quoting Lord Justice Denning, Master of the Rolls of the
Court of Appeal in England, as follows:
Punishment is the way in which society expresses its
denunciation of wrongdoing; and, in order to maintain respect
for the law, it is essential that the punishment inflicted for grave
crimes should adequately 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 and nothing else. The truth is that some crimes
are so outrageous that society insists on adequate punishment,
because the wrongdoer deserves it, irrespective of whether it is
a deterrent or not.
376. In J.J. Rousseau's The Social Contract written in 1762, he says :
Again, every rogue who criminously attacks social rights
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 cannot both be saved: one or the other must perish. In
killing the criminal, we destroy not so much a citizen as an
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 measure of the punishment must depend upon the
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atrocity of the crime, the conduct of the criminal and the
defenceless and unprotected state of victim. Imposition of
appropriate punishment is the manner in which the courts
respond to the society's cry for justice against the criminals.
Justice demands that courts should impose punishment
befitting the crime so that the courts reflect public abhorrence
of the crime. The courts must not only keep in view the rights
of the accused but also the rights of the victims and the society
at large, while considering imposition of appropriate
punishment.

378. In the case of Shivu vs. The Registrar General, High Court of
Karnataka, (2007) 4 SCC 713, the Apex Court observed that,
anything less than a penalty of greatest severity for 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
unjustifiable when it is out of proportion to the crime,
uniformly disproportionate punishment has some very
undesirable practical consequences. Proportion 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 why the community as a whole does
not endorse the humanistic approach reflected in 'death
sentence-in-no-case' doctrine are not far to seek. In the first
place, the very humanistic edifice is constructed on 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 doctrine. Secondly, it has to be realized that every
member of the community is able to live with safety without his
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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 in killing others if it suits their ends. Every member of
the community owes a debt to the community for this
protection. When ingratitude is shown instead of gratitude by
'killing' a member of the community which protects 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
collective conscience is so shocked that it will expect the
holders of the judicial power centre to inflict death penalty
irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty. The community 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....
380. There are several of such decisions of the Apex Court in which
Apex Court has affirmed the death sentence as the only option holding that
no other punishment can meet the ends of justice on account of the
depravity of the mind of the accused and the brutality in committing the
offence, holding that they constitute special reasons required for the
award of death sentence as they reflect the mindset of the accused which is
incapable of reformation. Some of these decisions are based on direct
evidence, some on circumstantial evidence. In some decisions, liability of
accused was proved to be individual, in some constructive or joint. Some
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offences were preplanned and some offences were committed on the spur
of moment.
381. Herein the case, it has to be stated that if one has regard to 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 imprisonment which is prescribed in Section 376(E) of IPC is
unquestionably closed. Law is well settled that the Court has to do justice
not only to the accused but also to the victim and the society at 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 threats. Therefore, it is the duty of this Court to award proper
sentence having 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
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the society, should be mercilessly and inexorably punished in the severest
terms. As per the Apex Court, the Judge who bears the sword of 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. This is a case where there is violation of all the rights of the
victim both, fundamental and Constitutional and also the violation of
individual dignity. It was a dehumanizing act which has left behind a
traumatic experience. It is not only a crime against her but also crime
against society, against basic human rights and also violates the 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 to the accused in such situation would be to render the justice
delivery system of the country a suspect. The common man will loose faith
in the Court.
384. In such cases, as observed by the Apex Court in the case of
Mahesh V State of M.P. (1987) 2 SCR 710, the common man understands and
appreciates the language of deterrence more than the reformation language.
The maximum punishment is not only to deter the accused from
committing the similar offence but it is also to send a strong signal and
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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 to commit such offences will be curbed. Protection of
society and deterring the criminal is the avowed object of law and that is
required to be achieved by imposing appropriate sentence. Courts must
hear the loud cry 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 behalf of accused No.2 Learned Counsel Shri Keshav Chavan
has also submitted that even after Nirbhaya's case and the amended penal
law, the crime rate against women has not decreased. Hence, according to
him, awarding severe form of punishment to accused is no solution to stop
these crimes. In this regard observations made by Hon'ble Delhi High Court
in Nirbhaya's case, are more than eloquent. It was held in this authority by
Hon'ble Delhi High Court that the object of sentencing is to impose
appropriate punishment befitting to the crime. Thus, irrespective 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.
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386. Thus, I am constrained to hold that 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 circumstances. Hence this case, without any
doubts, falls into the category of the rarest of 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. To show leniency or mercy in the case of such heinous
crime and on the accused who have shown no repentance or remorse after
exhibiting extreme depraved mentality would be a travesty of justice. This
Court cannot do so. Hence, though this Court is fully aware of irrevocable
nature of the death penalty, this Court has to award that sentence to
accused Nos.1, 3 and 4 for the offence punishable under Section 376(E) of
IPC and as regards accused No.2, the maximum sentence of life
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, this Court also cannot be oblivious to their plight. In my
considered opinion, therefore, both the NGOs and State Government can
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come forward for their help. Voluntary Organizations have great role to play
so far as this aspect is concerned. In the end, I proceed to pass the
following order.
: O R D E R :
1. Accused No.1-Vijay Mohan Jadhav @ Nanu, accused No.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.1-Vijay Mohan 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 as per section 235(2) of Cr.P.C. for the offence 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
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of Rs. 3,000/- (Rs. Three Thousand only) each, in default R.I. for 1 (One)
year each.
4. Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offence punishable under Section 377 individually and also
r/w 120-B of IPC and each of them is sentenced to suffer Rigorous
Imprisonment for life and to pay fine of Rs.3,000/- (Rs.Three Thousand
only) each, in default R.I. for 3 ( Three ) months each.
5. Accused Nos.1 to 4 are further convicted as per 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.
6. Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offence 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) months each.
7. Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offences punishable under Sections 341, 342 individually
and also r/w 120-B of IPC and each of them is sentenced to suffer Rigorous
Imprisonment for 1 (One) year.
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8. Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offence punishable under Section 323 individually and also
r/w 120-B of IPC and each of them is sentenced to suffer Rigorous
Imprisonment for 1(One) year.
9. Accused Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offence 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 Nos.1 to 4 are further convicted as per section 235(2) of
Cr.P.C. for the offence 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.One Thousand only) each, in default
R.I. for 3 (Three) months each.
11. Accused No.4 individually and accused Nos.1, 2 and 3 read with
Section 120-B of IPC are convicted as per section 235(2) of Cr.P.C. for the
offence 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, in default R.I. for 3 (Three ) months
each.
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12. All the substantive sentences of imprisonments of all the
accused to run concurrently.
13. As per the Proviso laid down under Section 376(D) of IPC, the
entire fine amount, if recovered, shall be paid to the prosecutrix, if she is
ready to accept it, after appeal period is over.
14. Accused Nos.1 to 4 are in jail, hence 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 implies that life imprisonment shall mean the imprisonment for
remainder of their life.
15. In view of Section 28(2) of Cr.P.C., the sentence of death shall be
subject to confirmation by the Hon'ble High Court. Hence, entire
proceeding be sent to the Hon'ble High Court at the earliest.
16. As regards Muddemal Property, it shall be required for the 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 mobile of prosecutrix (Art.4), Memory Cards of P.W.17-Anurag
(Muddemal Article Nos.16 and 17) which may be returned to them and
except mobiles of accused (Muddemal Article 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
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from FSL, which may be confiscated to State, after appeal period is over.
17. Issuance of certified copy of Judgment is expedited.
18. Sessions Case No.846/2013 stands disposed of accordingly.
(Dr.Mrs.Shalini S. Phansalkar-Joshi)
04/04/2014 Principal Judge, Bombay City Civil Court
& Sessions Judge, Gr.Bombay
Dictation started on :-15/03/2014 onwards
Transcription started on :- 16/03/2014 onwards
Signed on :- 10/04/2014