Pundlik And Others vs State Of Maharashtra

Anil L. Pansare, J

The challenge in the present appeals is to the judgment and order dated 24/8/2017 passed by the learned Special Judge, MCOC, Nagpur in Special MCOC Case No. 3/2015, whereby the Special Court has convicted the appellants (four in number) for the offences punishable under Sections 376(D), 366, 504, 506B, 377 and 394 read with Section 34 of the Indian Penal Code, 1860 (IPC). The Special Court, however, has acquitted the appellants for the offences punishable under Section 4/25 of the Arms Act, 1959 as also of the offence punishable under Section 3(1)(ii) of the Maharashtra Control of Organised Crime Act, 1999 (for short “MCOC Act”).

2] The appellants have been sentenced to undergo rigorous imprisonment for 20 years for the offence punishable under Section 376(D) of the IPC, for 5 years for the offence punishable under Section 377 of the IPC and for 1 year for the offence punishable under Section 394 of IPC. Sentence has been imposed for the offences punishable under Sections 366, 504 and 506-II of the IPC as well, however, the Special Court has held that the sentence for the said offences shall run concurrently along with the sentence for the offence punishable under Section 376(D) of the IPC. The sentence for the offences punishable under Section 377 and 394 of the IPC has been directed to run consecutive to the sentence for the offence punishable under Section 376(D) of the IPC.

3] Having heard both sides and having gone through the paper-book, the following points arise for my consideration. I have recorded my findings thereon for the reasons to follow.

Sr. No.

Points

Findings

1

Has the prosecution proved that the accused in furtherance of their common intention abducted both X and Y for committing sexual assault on ‘X’ by showing fear of knife ?

In affirmative

2

Has the prosecution proved that the accused in furtherance of their common intention voluntarily caused hurt to both X and Y and committed robbery ?

In affirmative

3

Has the prosecution proved that the accused in furtherance of their common intention committed gang rape on X ?

In affirmative

4

Has the prosecution proved that the accused in furtherance of their common intention did commit sexual carnal intercourse against the order of nature by putting their penis in her mouth ?

In affirmative

5

Has the prosecution proved that the accused in furtherance of their common intention, intentionally insulted both the victims to provoke them to break public peace ?

In affirmative

6

Has the prosecution proved that the accused in furtherance of their common intention committed criminal intimidation by threatening both the victims to kill them to cause alarm in their mind ?

In affirmative

7

Whether interference is called for in the impugned judgment ?

In negative

8

What order ?

Appeals dismissed

REASONS

4] All points together - Briefly stated, the case of the prosecution is that on 26/11/2014, at about 20:00 hours, at the outer ring road, Pipla Phata, Nagpur, in furtherance of common intention, the appellants/accused have kidnapped the prosecutrix ‘X’ and her boyfriend ‘Y’ and committed forcible intercourse with X. Also, the appellants have committed robbery of Rs.1,350/- which amount has been robbed from X and Y.

5] The details of the incident have been spelt out by X in her evidence. She has deposed that she was in private service. There was a weekly off on Wednesday. She along with her boyfriend Y, on 26/11/2014, at about 19:00 hours, was wandering on Y’s two wheeler. While returning from the outer ring road of Pipla Phata, four persons on two motorcycles came from behind and intercepted them and said “ge QkWjsLV ds yksx gS” (we are forest officials). They further said that there occurred theft of flesh of deer and, therefore, they want to interrogate X and Y and directed them to accompany their office. X and Y told them that they are not concerned with this fact to which those four persons said “gks’kh;kjh er djks gekjs lkFk pyks ugha rks ;gh is [kRe dj nsaxs” (don’t be smart, accompany us, else we’ll eliminate you both). They showed knife and gun (showing gun was shown to be omission). X and Y got frightened. One of the four persons took off the key of Y’s motorcycle and then rided the said motorcycle. X and Y were made to sit as pillion riders. These four persons took X and Y at a lonely place. There were two electric towers and one abandoned house. They told X and Y to get down from the vehicle. The headlights of the motorcycle were on. They showed knife and made X and Y to remove clothes, despite their refusal. The refusal resulted into beating. These four persons asked Y to have sex with X to which he denied and, therefore, was beaten again. Y was then made to sit aside at the point of knife. Three out of four persons forcibly committed rape on ‘X’. They put their penis in her mouth. These three persons then took X towards the fourth person. He also committed rape. Then they made X and Y to wear clothes and asked them to go by saying that they should not be seen at the said place again and gave them a life threat, if they disclosed the incident to the Police. They took Rs.500/-from X. They snatched a silver ring and took Rs.850/- from Y. X and Y then returned home. X has then identified the four persons to be the culprits/appellants. While identification, she has assigned a further role to Mohd. Afroz (accused no.1) of taking key of Y’s vehicle and riding the same. In addition, he had made Y to sit aside at the point of knife. He was the last person to commit rape. X has further deposed that Mohd. Afroz and Anil Ingle (accused no.2) assaulted her. Mohd. Afroz was the one who had threatened them lastly. She has further deposed that accused nos. 1 and 2 took-up money and silver ring.

6] She has further stated that the First Information Report (FIR) was lodged on 24/12/2014 (after about 28 days of the incident) with the Police Station – Hudkeshwar. Her oral report (Exh.37) and printed FIR (Exh.38) came to be proved accordingly. She has further deposed that she belongs to poor family, her parents are laborers and her younger sister is unmarried. She has deposed that her mental condition was not proper and that there was a fear of defamation and, therefore, there occurred delay in lodging report. She has then stated that they (X and Y) felt that the incident should not happen with another girl and, therefore, they decided to lodge the report. After lodging the report, she was referred for medical examination. Thereafter, her clothes were seized (which will be hardly of any relevance, considering the delay in seizure of clothes). She has further deposed as regards the appellants identification in jail. The test identification parade was conducted on 21/1/2015. She has identified all the appellants.

In cross-examination, she has admitted some generalized suggestions which include that she used to discuss about the family trouble with the parents as also individual problems in the family. It has been then brought on record that she took one week rest due to mental trouble and thus did not attend the office. She has admitted that Y is her boyfriend. She denied that there were shrubs at the spot. She has deposed that the spot of the incident was visible from a distance. She denied of sustaining abrasion of small stones and nails when she was made to lay down on the ground. She has deposed that there were blood and semen stains on the Odhani, which was lying on the ground. As regards her Salwar Kurta, she has deposed that it was kept on the vehicle and, therefore, was not dusted. It has been further brought on record in the cross-examination that she was suffering from deep pain and trouble and there was profuse bleeding. She has admitted that she was afraid. She has further admitted that she did not visit the doctor on that day. She went to the doctor after a week. The name of the lady doctor is Dr. Sheikh, who was a General Physician. She informed the doctor of trouble in the abdomen but did not narrate the incident to her. She has further admitted that she was facing trouble in walking. It is then brought on record that when penis were inserted in her mouth, she felt vomiting but did not vomit.

It is then pointed out to the witness that in her statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short “the Code”) she has stated that her friend has committed intercourse with her, which statement she has stated to be not correct. Thus, she has admitted that the statement to that effect made before the learned Magistrate is not correct, meaning thereby that she sticks to her version that the appellants asked Y to have sex with her, but he refused.

The further cross-examination was on the point of appellants taking mobiles of both X and Y and taking out sim cards from the mobiles, etc. She has admitted that the sim card of Y was later on found on the ground. However, the Investigating Officer (PW-7), in his evidence, denied that sim card was found on the ground. The witness then deposed that after arrest of the appellants, she was apprised of such arrest. In the further cross-examination, case was put up by the defence that Y has criminal antecedents and, therefore, has cooked-up a story, which suggestion has been denied by the witness.

7] The learned Counsel for the appellants have argued that X is not a believable witness. According to the appellants, X took one month to lodge FIR. She has not disclosed the incident to anyone, including her near and dear ones. She has not even disclosed the incident to the doctor to whom she visited after a week. She has exaggerated the version by saying that the appellants have, at the time of interception, shown knife and gun. Showing gun has been proved to be omission.

8] I do not find the discrepancies to be so material as to discard the testimony of X. She has given entire details of the incident. She has firmly withstood the lengthy cross-examination. As regards delay, the reason finds place in the last paragraph of the FIR itself. The witness, while lodging the FIR, has stated that post incident, she and Y were in extreme frightened state. She was suffering from pain in her body because of the forcible act committed by the appellants and, therefore, X and Y did not disclose the incident to anyone. Thereafter, they have discussed the issue and after due consideration decided to lodge the FIR so that to punish the perpetrators and to prevent repetition of the incident.

9] While giving evidence, X has tendered additional explanation by stating that she belongs to a poor family, her parents are laborers, her younger sister was unmarried and that they had a fear of defamation and further her mental condition was not proper and, therefore, there occurred delay in lodging the FIR. This part of explanation is said to be omission.

10] It is well settled that FIR is not an encyclopedia. One would not find minute details in the FIR. The person lodging FIR therefore can elaborate and should elaborate in evidence the occurrence of the incident, which witness X has done. In any case, having found the genesis of the story intact in the testimony of X, there would not arise any reason to discard her evidence by highlighting minor discrepancies which are bound to occur particularly in sexual abuse cases.

11] The learned Counsel for appellant – Pundlik/original accused no.3 argued that while concluding, X has assigned role to accused nos. 1 and 2 only. The name of accused no.3 has not even been uttered and, therefore, the case against accused no.3 is of no evidence.

12] The argument completely ignores the details of the incident narrated by X and Y both. X has categorically deposed that four persons intercepted them, threatened them at the point of knife, beaten them and committed rape one after the other. They all have put their penis in the mouth of X. As such, in evidence she has stated about this fact against accused nos. 2 to 4 but in her statement, this act has been alleged against accused no.1 also. She has then stated that they have robbed them. In addition to these details, X has further deposed the role played by accused no.1, independent of what the four accused have done. This role is pertaining to taking off key of Y’s motorcycle, riding the motorcycle, is a last one to rape her, etc. Accused no.3 might not have played any role of interception at the time but that does not mean that X has not deposed about the role played by accused no.3. X has made a categorical statement on the point of forcible intercourse at the hands of all the appellants and has further identified them before the Court to mean that each appellant has committed rape, one after the other and has put his penis in her mouth. The argument, therefore, is without any substance and is accordingly rejected.

13] The learned Counsel for the appellant – Anil Ingle/ original accused no.2 and the appellant – Aakash/original accused no.4 has submitted that X and Y had not raised hue and cry when they were intercepted. He further submitted that X has admitted in cross-examination that she was aware of the arrest of the appellants. He submitted that the appellants, at the time of remand, were produced before the Court with their faces being not covered. He joined by the learned Counsel for the appellant – Mohd. Afroz/original accused no.1, who submitted that X, while lodging the FIR, has stated that four unknown persons were responsible for the crime, whereas in the history given to the doctor, she has stated that the perpetrators were known persons. These facts coupled with delay in lodging the FIR, according to the learned Counsels, would make the prosecutrix’s version doubtful.

14] The argument to my mind is contrary to natural behaviour of victim of sexual abuse. The learned Counsel are expecting that X and Y, who have been suddenly intercepted by four unknown persons by representing themselves to be the forest officials and who have threatened them by knife and directed to accompany them for interrogation, would raise hue and cry. This expectation is far-fetched. Firstly, out of fear, one would not raise hue and cry. Secondly, if someone is asked to accompany the forest official/s for interrogation, he is bound to co-operate in the investigation else will have fear of arrest. In the present case, X and Y had informed the appellants that they are not responsible for the theft of flesh of deer, but were then forced to accompany them. In the circumstances, the submission of the learned Counsel for the appellants that X and Y having not raised hue and cry their testimonies would be untrustworthy, is without any substance and accordingly rejected.

15] As regards the statement of X on the point of sexual assault by unknown persons vis-a-vis her history before the doctor that such assault was by known persons, the same will be of no help to the appellants inasmuch as X was not given opportunity to explain whether she has narrated the said history to the doctor and if so narrated the reasons behind it. It is the case of the prosecution, through all the witnesses, that the perpetrators were four unknown persons. In the circumstances, the history written by the doctor is something which the doctor has penned down as a narration given by X and thus will be hearsay. The history noted by the doctor can not be placed at a higher pedestal then the evidence of X and Y.

16] As could be seen, right from the FIR to conducting the test identification parade, the prosecution’s version is of sexual assault by unknown persons. Had the sexual assault be by known persons, there was no reason for conducting the test identification parade. Thus, what is important is the testimony of X and Y before the Court. There is absolutely nothing in the cross-examination to show that the perpetrators were known to her. That being so, the argument that X’s testimony is unreliable, is without any merit.

17] The prosecution’s story has been criticized by the learned Counsels for the appellants on the ground that X has, in her evidence, stated that there were blood and semen stains on her Odhani which was lying on the ground. The FSL report, however, does not support this theory.

18] This argument fails to consider the time duration between the incident and seizure of clothes. The incident has occurred on 26/11/2014. The report was lodged on 24/12/2014. The clothes were collected thereafter. It is nobody’s case that the clothes were not washed during the intervening period. There is absolutely nothing on record that the clothes were in the same status as it were, immediately after commission of the crime. In the circumstances, to expect positive finding in the FSL report would be something from nothing.

19] Thus, in my considered view, the testimony of X is believable. The occurrence of incident has been cemented in the cross-examination because it has been elicited from her mouth that when she reached house, she was suffering from deep pain and there was profuse bleeding. She had pain in her abdomen. She was facing difficulty while walking. Penis were inserted in her mouth and, therefore, she felt vomiting but did not vomit. This cross-examination coupled with the testimony of X are sufficient to bring home the guilt of the appellants.

20] In addition, this theory has been supported by Y, X’s boyfriend. His evidence on the point of incident is identical to the evidence of X. In his cross-examination, it has been brought on record that X’s condition was deteriorating after the incident. She was facing difficulty while sitting and walking and, therefore, he advised her to visit the doctor. Thus, prosecution’s case, in a way, finds corroboration in the cross-examination.

21] There is nothing in the cross-examination to disbelieve Y and, therefore, the plight of X has been corroborated by Y, rather Y has also suffered a lot. Firstly, the appellants instructed him to perform sex with X. He denied and for such denial, he was beaten. Thereafter, in his presence, the appellants have committed rape on X. One can only imagine the plight which X and Y must have gone through on that day. Y has also identified the appellants in test identification parade as also before the Court. Thus, X and Y have firmly blamed the appellants for the offences.

22] PW-3 – Ravindra is a panch witness to seizure of blood samples, pubic hairs, nails, etc. of the appellants so also the silver ring of Y. PW-4 – Suresh is a panch witness to spot panchanama. There is hardly anything in the cross-examination to disbelieve the spot of the incident. The evidence of PW-3 and PW-4 does not require elaborate discussion except to note that silver ring of Y has been recovered at the instance of original accused no.4 – Aakash.

23] PW-5 – Kavita is the one who has registered the FIR. She has admitted in cross-examination that X has not stated reason for delay in lodging the FIR. This admission is contrary to record and, therefore, will be of no significance. I have earlier dealt with this issue. The reason for delay has been given in the FIR itself.

24] PW-6 – Smruti is the doctor whose evidence has been already discussed to the extent necessary. She has not found any external injury on the person of X. Tear in hymen was healed.

25] One must note that X was examined after about a month of incident and, therefore, it is natural that the injuries will be healed/absent. The doctor’s evidence, however, corroborates the prosecutrix’s version that there occurred penetrative sexual assault.

26] PW-7 – Sunil is the Investigating Officer. He has given details of investigation which includes recording statement of witnesses, drawing spot panchanama, recording statement of X under Section 164 of the Code, conducting test identification parade, seizure of samples of victim as also of the appellants, sending samples to FSL for analysis, filing chargesheet, etc. His evidence further indicates that on 12/1/2015, the silver ring was recovered at the instance of appellant – Aakash/original accused no.4 from his house. The silver ring was kept beneath TV. In the cross-examination, there is nothing to disbelieve the Investigation Officer.

27] The only portion highlighted in his cross-examination is that he denied the suggestion that sim card of Y was found on the spot, the effect of which has been already discussed earlier. This witness has admitted that it is not mentioned in the report seeking PCR that the faces of appellants were covered when produced before the Court. The witness, however, volunteered that though it is not so mentioned, the appellants were produced before the Court having their faces covered. Thus there are no material lapses in the investigation to even suggest that the appellants have been framed by the Investigating Agency.

28] PW-8 – Raja and PW-9 – Tukaram are the police officials who were examined in connection with the provisions of the MCOC Act. Their evidence is on the point of the previous crimes registered against the appellants to book them under the provisions of MCOC Act. PW-10 – Shardaprasad is the sanctioning authority who has accorded sanction to prosecute the appellants under the provisions of the MCOC Act. PW-11 – Deepak is the one who has granted approval to invoke the provisions of the MCOC Act against the appellants. The evidence of PW-8, PW-9, PW-10 and PW-11 is in connection with the offence punishable under the provisions of the MCOC Act. The appellants having been acquitted of the offence of the MCOC Act, the evidence of these witnesses does not require elaborate discussion.

29] This is how the prosecution has led evidence.

30] The learned Additional Public Prosecutor, while dealing with the submissions made by the learned Counsel for the appellants, has placed reliance upon some of the judgments on the point of delay. He has referred to the judgment of the Hon’ble Supreme Court in the case of Satpal Singh Vs. State of Haryana [(2010) 8 SCC 714] wherein the Supreme Court has noted that delay in lodging FIR in a case of sexual assault cannot be equated with the case involving other offences. The delay in lodging FIR in sexual offences has to be considered with a different yardstick considering the fact that in rape cases, the prosecutrix remains worried about her future and remains in a traumatic state of mind. The Society’s attitude towards her is indifferent. It casts doubt and shame upon her rather than comfort and sympathize with her.

The learned Additional Public Prosecutor has on the point of delay then referred to the judgment of the Hon’ble Supreme Court in the Case of Hariprasad Vs. State of Chhattisgarh [MANU/CG/0815/2021] wherein the Supreme Court has held that the FIR being only corroborative piece of evidence and not substantive piece of evidence, mere delay in registering the FIR cannot be held to be a ground adverse to the case of the prosecution.

The third judgment is the case of Srivalla Srinivasa Rao And Others Vs. State of Andhra Pradesh [(2011) 8 SCC 113] wherein the Hon’ble Supreme Court has held that a victim of gang rape inevitably suffers acute trauma and it takes some time before such a victim is in a position to make a lucid and sensible statement. The Hon’ble Supreme Court further held that rape itself brings enormous shame to the victim and it is after much persuasion that a rape victim goes to the police station to lodge a report and if some delay if occasioned that cannot in any way detract from the other credible evidence.

The learned Additional Public Prosecutor submitted that firstly, delay in lodging the FIR has been duly explained by X and Y both, and secondly, the delay will have to be considered in the light of the law laid down by the Hon’ble Supreme Court in the aforesaid cases.

31] I do find substance in the aforesaid submissions of the learned Additional Public Prosecutor. In the present case, the delay having been explained by X and Y both, the appellants cannot draw any advantage on the count of delay and if considered in the light of the judgments noted above, there is hardly any scope to extend advantage of delay to the appellants.

32] Put all together, the prosecution has successfully proved the case beyond reasonable doubt. The appellants have criminal antecedents. They have a lengthy list of crimes to their credit. The analysis of evidence will not only prove ingredients of gang rape, but also of kidnapping X with intend to seduce her to illicit intercourse, intend and insult of X and Y with knowledge of likelihood of provoking them to commit offence, criminal intimidation with a life threat, unnatural offence and voluntarily causing hurt in committing robbery. The appellants have abused X and Y, asked Y to commit sex with X in their presence and upon refusing, beat Y and thereafter committed rape on X in the presence of Y. This act will definitely provoke X and Y both to commit offence. Its a different matter that they have not responded to the appellants inhuman and cruel behavior. Accordingly, point nos. 1 to 6 are answered in the affirmative and point no.7 in the negative.

33] The learned trial Court has considered the evidence in detail and has given a well reasoned judgment to support the conviction under various provisions of the IPC. That being so, I do not find any merit in the appeals. Hence, the following order :

ORDER

Criminal Appeal Nos. 443/2017, 482/2017, 76/2018 and 4/2019 are dismissed.

34] Fees of the learned Counsel (appointed) in Criminal Appeal No. 443/2017 be paid as per Rules.