D.Y. Chandrachud, J.@mdashThe prosecutrix was eighteen and lived with her parents and three sisters. The house in which the family resided at Thane was under construction. The prosecutrix had known Umesh Patil for five months. Umesh was constructing her house at Thane. During the course of the construction, the family shifted to Dombivli to reside with the prosecutrix''s grandmother. The case of the prosecution is that Snehal, who was a neighbour, had invited the prosecutrix for the wedding of her brother which was to take place at Khopoli. On 5th May 2001, the prosecutrix and her mother are alleged to have met Umesh at Thane when he stated that he would hand over the work of construction to another contractor since he had no time on his hands. Umesh is alleged to have sought the permission of the prosecutrix''s mother to let her accompany him to Khopoli for the marriage. Umesh is alleged to have collected a bag containing the prosecutrix''s belongings from her home at Dombivli and to have instructed her to meet Sachin Gavate at an assigned place. Sachin was to accompany her to Vitava. Sachin and the prosecutrix proceeded to Vitava where Umesh Patil, Prashant Koli, Navnath and Sachin Rao were in a Sumo Jeep. The group proceeded to Panvel Station where they met another girl and Amit Rao. All of them are alleged to have proceeded to the house of Snehal, where the wedding ceremony of her brother was to take place, between 7 and 7.30 p.m. After dinner, Umesh is alleged to have told the prosecutrix that since Snehal''s house at Khopoli was full of guests, they should go to Karla where he had a bungalow. The entire group then proceeded to Karla and is alleged to have halted at a bungalow by the name of Yamuna Niwas, belonging to Umesh. The bungalow consisted of two bedrooms. The prosecutrix was allegedly instructed by Umesh to rest in one bedroom whereas the other girl was asked to proceed to a separate bedroom. Umesh Patil and Amit Rao are alleged to have entered the prosecutrix''s bedroom sometime thereafter. The case of the prosecution is that Umesh compelled the prosecutrix to remove her clothes under threat. The prosecutrix is stated to have removed her clothes except for her under garment which Umesh removed. The case of the prosecution is that Umesh Patil and Amit Rao raped her repeatedly and also indulged in anal intercourse. The other accused - Prashant and Sachin are similarly alleged to have raped the prosecutrix and to have indulged in anal intercourse. The prosecutrix was subjected to this ordeal from 11.30 p.m. to 4.30 a.m. The prosecutrix, according to the prosecution, is alleged to have resisted and to have shouted whereupon the girl in the bedroom next door is alleged to have shouted out, requesting the accused to desist. The prosecutrix is alleged to have fallen asleep after 4.30 a.m. When she woke up at 7.30 a.m., she had intense pain in the stomach. By then, all the accused except Navnath, had left. Navnath is alleged to have informed the prosecutrix that all the others and the girl who was with them had left the bungalow. Navnath summoned a doctor who examined the prosecutrix and gave her some preliminary treatment. the prosecutrix is alleged to have been unable to move on 6th May 2001. On the next day - 7th May 2001 - the prosecutrix, accompanied by Navnath, took an auto to Lonawala Station and then proceeded by train to Dombivli. She reached home between 4 and 4.30 p.m. on 7th May 2001.
2. The prosecutrix is alleged to have complained about a recurring pain in the stomach to her mother and when the pain did not subside, a doctor - Dr. Jain - was summoned at about 7 p.m. Dr. Jain, in turn, gave a note to Dr. Shirodkar to whose Hospital the prosecutrix was taken at about 10 p.m. Dr. Shirodkar advised that surgery was necessary and accordingly a surgery was conducted on the prosecutrix. On 7th May 2001, Dr. Shirodkar found that the prosecutrix had suffered a perforation of the terminal part of the rectum. An emergency colostomy was performed involving a removal of the terminal part of the large intestine from the abdomen so that it could serve the purpose of a temporary anus. The prosecutrix was in Hospital until 28th June 2001. According to the prosecution, after several days in the Hospital, when Dr. Shirodkar had secured her confidence, the prosecutrix disclosed to him the incident which had taken place and the names of the accused. On being informed by the prosecutrix that she had been subjected to rape and anal intercourse, Dr. Shirodkar informed the Police. The prosecutrix''s statement was recorded on 31st May 2001. A supplementary statement was recorded on 1st June 2001. Sachin Gavate was arrested on 3rd June 2001. A chargesheet was initially filed against three of the accused - Sachin Rao, Amit Rao and Navnath. The accused were committed to stand trial before the Additional Sessions Judge at Pune. Accused Umesh Patil and Prashant were absconding. Sachin Gavate was a juvenile offender and he was transferred to the Juvenile Court. Prashant was arrested on 18th February 2002 at the Sessions Court at Shivaji Nagar, Pune. Umesh Patil appeared before the High Court on 29th January 2002 when he was arrested. Upon the arrest of Umesh and Prashant, a supplementary chargesheet was filed for offences punishable under Sections 363, 366, 342, 323, 376(2)(g), 307, 504 and 506 read with Section 34 of the Penal Code.
3. The prosecution adduced the evidence of thirteen witnesses. Among them was PW 1 Dr. M.V. Shirodkar, who had examined the prosecutrix and had informed the Police upon receiving information from her of the offence. PW 2 Dr. Nagabhushanam had performed the surgical operation on the prosecutrix. PW 3 Dr. Jain had examined the prosecutrix and had referred her to Dr. Shirodkar for medical treatment. PW 4 and 5 were Panch Witnesses. PW 7 Snehal was the friend of the prosecutrix in whose house the wedding had taken place. PW 9 Bendre was the PSI who had arrested some of the accused. PW 10 Nanawade was the PSI who had recorded the FIR. Dr. Samir Pawar, PW 11 had examined the prosecutrix in the Sassoon Hospital. PWs 12 and 13 were the Investigating Officers.
4. By his judgment dated 17th September 2002, the Additional Sessions Judge at Pune convicted Umesh Patil (Accused No. 1), Prashant Koli (Accused No. 2), Sachin Rao (Accused No. 3) and Amit Rao (Accused No. 4) for offences punishable under Sections 376(2)(g), 377 and 323 read with Section 34 of the Penal Code. The accused were sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each for the offence punishable u/s 376(2)(g). The accused were sentenced to suffer simple imprisonment for ten years and to a fine of Rs. 2,000/- each in respect of the offence punishable u/s 377 read with Section 34 of the Penal Code. Both the sentences were directed to run concurrently. The fine recovered from the accused was directed to be paid over to the prosecutrix. Accused Navnath was acquitted of the charge.
5. There are three appeals before the Court, namely those by Umesh Patil (Accused No. 1), Prashant Koli (Accused No. 2) and Sachin Rao (Accused No. 3). On behalf of the Appellants, it has been submitted that (i) No offence is disclosed u/s 376(2)(g) and if at all, an offence would be made out only u/s 377 of the Penal Code; (ii) The conduct of the prosecutrix does not inspire confidence and there are several discrepancies in her deposition; (iii) Accused Amit had pleaded an alibi, but there is no discussion thereon in the judgment of the Trial Court; (iv) The prosecution had failed to examine the girl who is alleged to have accompanied the group to the bungalow of Umesh Patil at Karla; and (v) The doctor who had administered medical aid to the prosecutrix in the first instance had not been examined.
6. The principal thrust of the submissions before the Court is that there are improbabilities in the case of the prosecution. It has been submitted that the prosecutrix had known accused Umesh for about five months prior to the date of the alleged incident and she deposed that she had not been accustomed to reside at the house of any friend. It was submitted that in such a situation, the parents of the girl would not allow her to proceed with a stranger. Snehal, PW 7, at whose home the wedding was to take place of her brother was not a close friend of the prosecutrix and did not even know Umesh. The other girl who had accompanied the group of persons was not described and the prosecutrix admitted that she had not furnished her name though the Police had so enquired. On the other hand, the Investigating Officer, PW 13 deposed that the other girl was a prostitute and could not be found. It was submitted that though the other girl was not traceable, it was a mystery as to how the Investigating Officer had traced information about her profession.
7. While dealing with the submissions which have been urged on behalf of the Appellants, it would be necessary to advert to the evidence of the prosecutrix, PW 6 - the prosecutrix. the prosecutrix deposed that she had come to know Umesh Patil about five months earlier since he had undertaken the job of constructing her family house at Thane. the prosecutrix had received an invitation from a friend Snehal, PW 7, to attend the wedding of her brother which was to be performed at Khopoli. the prosecutrix is alleged to have accompanied Umesh Patil to Khopoli together with the other accused Appellants, namely, Prashant Koli and Sachin Rao. Besides the three accused who are the Appellants before the Court, the group consisted of Sachin who was a juvenile offender, Amit Rao, Navnath and another girl. The prosecutrix deposed that the entire group reached Snehal''s house between 7 and 7.30 p.m. and after dinner, Umesh suggested that they should proceed to his bungalow at Karla since there were several guests in the house where wedding was to take place. The prosecutrix has deposed to the events that transpired between 11.30 p.m. when the group reached Karla and 4.30 a.m. when she fell asleep. The prosecutrix named the Appellants - Umesh Patil, Prashant Koli and Sachin Rao - among others, as persons who had repeatedly in succession, raped her and subjected her to anal intercourse. Accused Umesh had, according to the prosecutrix, inserted a candle in her anus while he was raping her. The prosecutrix identified all the three Appellants before the Court. The prosecutrix and all the three Appellants were together from the time that she met them at Vitava and proceeded thereafter to Khopoli and from there to the bungalow of Umesh at Karla. She was clearly in a position to identify them and has as a matter of fact identified the Appellants.
8. The nature of the injuries that were sustained by the prosecutrix has emerged from the medical evidence on record and inter alia from the deposition of the medical witnesses. After the incident took place on the night between 5th and 6th May 2001, the prosecutrix deposed that she was unable to move on 6th May 2001. On 7th May 2001, she was brought home by Navnath to Dombivli and a doctor was summoned at about 7 p.m. The doctor in question, Dr. Subhash Jain, deposed in evidence as PW 3 and stated that the prosecutrix was complaining of pain in her abdomen and of bleeding from the rectum. On examining her, PW 3 noted that she had already been treated earlier by a doctor and since her condition was serious, he advised that she should be admitted to Hospital. The prosecutrix was thereafter taken to the Hospital of Dr. Shirodkar, PW 1. PW 1 stated that upon examining her, he found that the prosecutrix was toxic, her pulse rate was high; the abdomen was rigid and there was rebound tenderness all over the abdomen. An X-ray was taken and an emergency surgery was carried out since it was found that there was a perforation in the terminal part of the rectum. The surgery involved the removal of the terminal part of the large intestine to serve the purpose of a temporary anal canal. The prosecutrix was in Hospital until 28th June 2001.
9. PW 1, Dr. Shirodkar, deposed that while the prosecutrix was in the Hospital, he had noticed that she was having what he described as "funny injuries" and though he had asked her about them, she had not disclosed anything. After ten to fifteen days after surgery, the prosecutrix revealed the entire background of the case to P.W. 1 including the incident during the course of which she had been raped repeatedly and had been subjected to anal intercourse. PW 1 thereupon informed the Police immediately. He stated that she had disclosed to him the names of the persons who had participated in the assault. The Police thereupon visited the Hospital and the statement of the prosecutrix was recorded by PW 13, Sushil Kadam, who was the API attached to the Police Station in Lonavala. A spot panchanama was prepared (Exh.51). The initial statement of the prosecutrix was recorded on 31st May 2001. In a case such as the present, the time that has elapsed between the date of the incident and the recording of the first statement of the prosecutrix must be assessed with reference to her medical condition. The prosecutrix had suffered serious injuries resulting in a perforation of her intestine. An emergency surgery was performed on her, which required her hospitalisation until 28th June 2001. In such a situation, it is natural for the victim of a serious sexual assault involving a gang rape and forcible anal intercourse to be traumatised by the incident and by the injuries sustained by her. The injuries in this case were serious. A realistic view has to be formed of the physical pain endured by the prosecutrix. Added to that is the social stigma, revulsion and fear of consequences. The law is not obvious to these facets. It is but natural that the treating doctor, PW 1 had to gain the confidence of the prosecutrix over a period of time and it is only thereafter that she proceeded to divulge the full details to him. In the first statement that was recorded on 31st May 2001, the prosecutrix referred to all the accused as being involved in the sexual assault on the night between 5th and 6th May 2001. In the first statement, the prosecutrix referred to the accused as having indulged in anal intercourse with her. In the second statement (Exh.53), the prosecutrix has stated that besides engaging in anal intercourse, the accused had subjected her to rape repeatedly. The first and the second statements are recorded proximate in time, barely within a day of each other. The prosecutrix is evidently not a tutored witness. The nature of the trauma suffered by her, the serious injuries that were sustained and the surgical intervention required to rectify the situation must be borne in mind in determining as to whether the prosecutrix should be believed on the point of rape. The prosecutrix was examined at the Sassoon General Hospital in Pune by P.W. 11 Dr. Samir Pawar whose evidence also confirmed that a colostomy had been performed on her. The prosecutrix disclosed to him that she had been taken to a bungalow near Lonavala where she was threatened and subjected to repeated anal penetrative intercourse. On examination, PW 11 found that the hymen was torn and a PV examination could be possible. The findings of the medical examination are consistent both with rape and forcible anal intercourse. The medical papers were produced and marked in evidence as Exh.73. P.W. 2 Dr. Nagbhushanam was the Resident Medical Officer at the KEM Hospital, Mumbai where the prosecutrix was admitted on 14th November 2001. The prosecutrix was once again operated upon on 15th November 2001 by Dr. Kashid and was discharged on 2nd December 2001.
10. The law in regard to the manner in which the evidence of the victim of a sexual assault should be evaluated has been elaborated upon by the Supreme Court in
The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicious? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strike the judicial mind as probable.
These principles have been reiterated in Rajoo v. State of M.P. AIR 2008 SCW 8165. The Supreme Court has observed that the broad principle is that an injured witness was present at the time when the incident happened and ordinarily such a witness would not lie as to the name of the actual assailant. But there is no presumption that the statement of such a witness is always correct or without an ambiguity or exaggeration. Obviously such a statement cannot be regarded as reflective of gospel truth.
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14. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former, it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice would do.
12. In the present case, not merely is the prosecutrix in the position of an injured witness in the sense that she was subjected to a violation of the dignity of her being, but she is in every sense of the expression, an injured witness. The nature of the injuries which were sustained by the prosecutrix would leave no manner of doubt that she was subjected to a serious sexual assault. In recapitulating the events which took place, there may be minor contradictions or omissions, but these in the present case, are not sufficient to disbelieve the over all veracity of the version of the incident which she portrays and of her identification of the accused. In State of Punjab v. Ramdev Singh (supra), the Supreme Court held thus:
If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none reasonably exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females or minor children. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children.
Counsel appearing on behalf of the Appellants has sought to urge that the conduct of the prosecutrix in accompanying accused Umesh for the wedding in the family of PW 7 would demonstrate that she had willingly proceeded with the accused. Even if as the evidence suggested, the prosecutrix had willingly travelled with the accused to the wedding and thereafter to the bungalow at Lonavala, it would be preposterous to presume that a woman in her position would consent to a sexual assault to which she was inflicted.
13. Counsel appearing on behalf of the Appellants has submitted that the prosecution has failed to examine the other girl who had accompanied the group to Lonavala. This, in our view, is not a circumstance, which casts doubt either on the truthfulness of PW 6 or of the case of the prosecution. P.W. 13, who was the Investigating Officer, deposed that he has made an enquiry and a search for the other girl who was with the prosecutrix at the time of incident and has mentioned the fact in his case diary, but she could not be traced and she was a prostitute. The Investigating Officer denied the suggestion that both the prosecutrix and that girl were prostitutes. The evidence of the prosecutrix, PW 6, is trustworthy and inspires confidence. It would be impermissible both in law and on first principles of appreciation of evidence to disregard her evidence merely because the prosecution has not examined the other girl who had accompanied the group. Similarly, the failure to examine the doctor who had initially imparted medical treatment to the prosecutrix is not a circumstance which would dilute the case of the prosecution. The evidence of PW 6 is corroborated by PW 7 Snehal who deposed that on 5th May 2001, the prosecutrix had come together with all the three accused Appellants and the other accused to her home at Khopoli in connection with the marriage of her brother which was to take place. PW 7 deposed that after dinner, they had left stating that they would come back on the next day for the marriage. However, on the next day, the others attended the marriage but not the prosecutrix.
14. The report of the Regional Forensic Science Laboratory (Exh.88) was that the blood group of the prosecutrix was "B". Two bedsheets recovered from the room where the prosecutrix had been assaulted, had traces of semen of blood group "A" and "B" and ABO antigens and AO antigens. The blood group of accused Appellant Amit is "A". The Learned Trial Judge has in the circumstances, relied upon this piece of corroborative evidence.
15. The accused Appellant Sachin Rao set up a plea of alibi. DW 3 Datta deposed that on 4th May 2001 accused Sachin was with him and had proceeded together with him and his wife to Pimpalwadi to attend the marriage of his relative. The marriage was to be solemnized on 5th May 2001. Certain photographs of the marriage were sought to be relied upon and the witness deposed that he had returned together with accused Sachin on 6th May 2001 at 9 a.m. In the course of the cross-examination, the witness admitted that the photographs did not show the date on they were taken nor was any date mentioned on the negatives. The witness admitted that he had not disclosed to the Police until the date of the deposition that the accused was with him on 4th and 5th May 2001. Finally, the witness also admitted that the photograph was not a photograph of the marriage ceremony itself. In these circumstances, the plea of alibi was completely untrustworthy and could not be believed.
16. For all these reasons, we are of the view that the prosecution has established its case beyond reasonable doubt. The conviction u/s 376(2)(g) and Section 377 of the Penal Code does not suffer from any infirmity. Considering the heinous nature of the crime and the circumstances in which the prosecutrix was subjected to a sexual assault by all the three accused Appellants between 11.30 p.m. on the night of 5th May 2001 and 4.30 a.m. on 6th May 2001 and was subjected to rape and anal intercourse, we are affirmatively of the view that the sentence which was imposed upon the Appellants meets the ends of justice and does not call for any interference. The appeals shall accordingly stand dismissed.
