Partly allowed

Ramesh Parshuram Patil and Ors. v. State of Maharasthra and Anr.

Bombay HC5 Oct 2006APEAL/37/1990

Case brief

AI extract

What is this about?

High Court upheld conviction for rape and attempt to murder, dismissing appeal against conviction. It dismissed appeal against acquittal of another victim due to hostile witness. Court enhanced fines for rape to Rs. 25,000 each but rejected enhancement of imprisonment due to long lapse of time.

What did the court decide?

Criminal Appeal No. 37 dismissed; Appeal No. 87 partly allowed with fine enhanced to Rs. 25,000; Appeal No. 88 dismissed; accused directed to surrender.

Ramesh Parshuram Patil and Ors. Vs State of… — Criminal Trial and Appeal | Bombay HC (2006)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPEAL NO. 37 OF 1990.

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 WITH

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 CRIMINAL APPEAL NO. 87 OF 1990

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AND

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 CRIMINAL APPEAL NO. 88 OF 1990

¶8

Cr.Appeal No.37/90.

¶9

1. Ramesh Parshuram Patil.

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2. Suresh Kashinath Deo.

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3. Devanand Shankar Vaidya @ Vaiti.

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4. Raju Ramchandra Vaiti.

¶13

 5. Tukaram @ Bal Sadashiv Mayekar. ... Appellants

¶14

 6. Ranjan Eknath Pawar. (Org.Accused No.
 1 to 6.)
 Versus.

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 1. The State of Maharashtra
 (At the instance of Mahim
 Police STation C.R.No.797/82).

¶16

 2. Kum.Kalpana Laxman Dhamankar,
 Fisherman Colony, Bldg.No.9,
 R.No.347, Mahim, Bombay-16. ... Respondents

¶17

 Shri Sandesh D.Patil, Advocate (appointed) for the
 Appellants.

¶18

 Shri U.V.Nikam, A.P.P. for the Respondent No.1-State.

¶19

 Mrs.N.Bhagwat for Respondent No.2.

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Cr.Appeal No.87/90.

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and

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Cr.Appeal No.88/90.

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 The State of Maharashtra. ... Appellant.
 (In both appeals)
 Versus.

¶24

 : 2 :

¶25

1. Ramesh Parshuram Patil.

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2. Suresh Kashinath Deo.

¶27

3. Devanand hankar Vaidya.

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4. Raju Ramchandra Vaiti.

¶29

 5. Tukaram @ Bal Sadashiv Mayekar. ... Respondents

¶30

 6. Ranjan Eknath Pawar. (Org.Accused.)
 (In both appeals.)

¶31

 Shri U.V.Nikam, A.P.P. for the Appellant in both
 appeals.

¶32

 Shri Sandesh D.Patil, Advocate (appointed) for the
 Respondents in both appeals.

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CORAM : ABHAY S. OKA, J.

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DATED : 29th September, 2006.
 3rd October, 2006,
 4th October, 2006,
 and

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 5th October, 2006.

¶36

ORAL JUDGMENT.

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 1. These three Appeals can be conveniently disposed

¶38

 of by a common judgment. Criminal Appeal No.37 of 1990

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 is filed by the original Accused for challenging the
 Judgment and order dated 16th January 1990 passed by the
 learned Additional Sessions Judge, Mumbai. By the said
 Judgment and order the Appellants have been convicted
 for offences punishable under sections 307, 376 and

¶40

 section 201 read with section 511 of the Indian Penal

¶41

 Code. The conviction is as regards the offences where

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 the victim is the prosecutrix Ms.Kalpana Laxman
 Dhamankar. So far as the offence alleged against the

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 : 3 :

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 prosecutrix Ms.Smita alias Prachi Prakash Waradkar is
 concerned, the Appellant No.1 and the Appellant No.6
 have been acquitted of the offences alleged under
 section 366 and 376 of the IPC. The Appellants have
 been sentenced to suffer R.I. for 7 years for the
 offence punishable under section 307 of the Penal Code
 and to pay fine of Rs.500/- each. In default of
 payment, the Appellants have been directed to undergo
 R.I. for four months. For the offence under section
 376 of the Penal Code, the Appellants have been
 sentenced to suffer R.I. for 7 years and to pay of
 Rs.300/- each. In default of payment of fine, the
 Appellants have been directed to suffer R.I. for two
 months. For the offence under section 201 read with
 section 511 of the Penal Code, the Appellants have been
 sentenced to suffer R.I. for six months. All sentences
 have been directed to run concurrently. Criminal Appeal
 No.87 of 1990 has been filed by the State seeking
 enhancement in the sentence awarded to the Appellants.
 Criminal Appeal No.88 of 1990 is also preferred by the
 State for challenging the order of acquittal for
 offences alleged where the victim was Ms.Smita alias
 Prachi.

¶45

 2. Initially in these three Appeals, the accused

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 : 4 :

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 were represented by Shri V.L.Pradhan, Advocate. When
 these Appeals were called out for final hearing before
 this Court on 16th August 2006, the office noting showed
 that Court notices issued to the accused were duly
 served. The notices were issued as Shri V.L.Pradhan was
 no longer appearing. Though the accused were served
 with notice, they had not engaged any Advocate.
 Therefore, this Court directed the office to appoint an
 Advocate for espousing the cause of the Accused.
 Accordingly, Shri S.D.Patil has been appointed as an
 Advocate.

¶48

 3. I have heard the submissions of the learned
 Counsel appearing for the Accused who has been appointed
 to espouse the cause of the Accused. I have also heard
 the submissions of the learned A.P.P and the submission
 of the learned Counsel appearing for the 2nd Respondent
 Ms.Kalpana in Criminal Appeal No.37 of 1990. With a
 view to appreciate the submissions made by the learned
 Counsel appearing for the parties, it will be necessary
 to briefly refer to the prosecution case.

¶49

 4. By the impugned Judgment and order two cases,
 viz. Sessions Case No.365 of 1983 and Sessions Case
 No.366 of 1983 have been decided. According to the case

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 : 5 :

¶51

 of the prosecution, all the Accused are residing in and
 around the area of Fishermen Colony at Mahim. One of
 the victims, Kalpana Dhamankar was residing in Building
 No.9 in the said Colony along with her mother and
 sisters. The second victim Smita was also living in the
 same colony. Kalpana and Smita were close friends.
 According to the case of the prosecution, both of them
 knew the Accused as they used to frequently visit the
 house of one Gotya who was residing in Building No.9 in
 the said colony. According to the prosecution, the
 incident had taken place late in the night on 24th
 October 1982 or in the early morning of 25th October
 1982. Eight days prior to the incident, the said
 Kalpana and Smita had gone to witness Ram Leela
 programme at Shivaji Park, Dadar, Mumbai. At that time,
 the Accused No.1 Ramesh and Accused No.4 Raju were
 present in the crowd. From Shivaji Park, the Accused
 No.1 Ramesh took Smita with him and Kalpana started
 going back towards her home. Accused No.4 Raju followed
 her and intercepted her near Vivekanand Garden. It is
 alleged that Accused No.4 proposed Kalpana and requested
 her to marry with him. However, Kalpana informed him
 that she was treating him as his brother and therefore,
 she did not accept the proposal. Thereafter Kalpana
 proceeded towards her home.

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 : 6 :

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 5. On 24th October 1982, Kalpana and Smita together
 went to see a programme of Garba dance in the Police
 Quarters in the Fishermen Colony. They witnessed the
 programme till about 11.15 p.m. when they noticed
 Accused No.4 Raju in the crowd. Therefore, they decided
 to return to their respective houses and they started
 running towards their building. When they were near
 Building No.17 and 23 which are adjacent buildings, they
 saw the accused No.1 Ramesh and the accused No.4 Raju.
 As both of them were frightened, they tried to hide
 themselves below the staircase of building No.17.
 According to the case of the prosecution, the Accused
 No.1-Ramesh and the Accused No.4-Raju followed them.
 The Accused No.1-Ramesh caught hold of Smita and took
 her towards Building No.23. Accused No.4-Raju took
 Kalpana to the terrace of Building No.17 where he again
 proposed her. But the said Kalpana turn down the
 proposal. Therefore, Accused No.4-Raju gave a threat to
 Kalpana. While all this was going on, the other Accused
 entered the terrace of Building No.17. According to the
 prosecution case, they removed the clothes on the person
 of Kalpana and pushed her down on the floor of the
 terrace. Thereafter, the accused forcibly raped Kalpana
 one after the other in succession. Kalpana was

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 : 7 :

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 thereafter thrown down by them from the terrace of the
 Building No.17. Kalpana fell down on the ground and
 sustained serious injuries.

¶56

 6. According to the prosecution case, the Accused
 No.1-Ramesh and Accused No.6-Ranjan committed rape on
 Smita on the rear side of the building No.23 in an empty
 space between Building No.25 and a wooden stall.

¶57

 7. P.W.3 Shri Ali Abdul Ali Barodawala, a resident
 of the building No.23 in the said colony heard a noise
 when Kalpana fell down on the ground and therefore, he
 rushed to the spot in front of Building No.17. He found
 that Kalpana was lying on the ground in an injured
 condition and she was unable to talk. He, therefore,
 shouted for help and rushed to the Police Station at
 Mahim. P.I. Patil and S.I.Shaikh along with other
 staff members came to the spot and they immediately
 shifted Kalpana to KEM Hospital. While Kalpana was
 being admitted in KEM Hospital, her mother Savitribai
 and sister Asha were brought to the Hospital.
 Thereafter P.I. Patil and P.S.I. Shaikh, Kalpana’s
 mother Savitribai and Kalpana’s sister Asha came back to
 the spot of incident i.e. Building no.17 in Fishermen
 Colony. In the meanwhile, the Accused No.1-Ramesh and

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 : 8 :

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 Accused No.2-Suresh were already arrested by the Police
 who were on the spot of the incident. A panchanama of
 the spot and a panchanama of the terrace of the Building
 No.17 was drawn. Another panchanama of the spot where
 prosecutrix Smita was subjected to offence was drawn and
 the clothes and certain articles were seized in presence
 of panchas. The prosecutrix Smita was taken to the
 Police Station where her statement was recorded and an
 offence under sections 366 and 376 of the Penal Code was
 registered vide C.R.No.796 of 1982. PSI Shaikh was
 making enquiry on the spot. The statement of PSI Shaikh
 was recorded by PI Patil and on that basis offence under
 sections 366, 376, 307 and 201 of the IPC was registered
 against all the Accused vide C.R.No.797 of 1982.

¶60

 8. Statement of the prosecutrix Kalpana was
 recorded on 27th October 1982. Though PI Patil was
 making efforts to record statement of Kalpana in KEM
 Hospital where she was being treated, only on 27th
 October 1982 that he succeeded in recording the
 statement of Kalpana after the Doctor certified her
 fitness and ability to make such a statement. In her
 statement, Kalpana narrated the entire incident
 regarding the rape and attempt to commit murder. The
 statement of various witnesses were recorded. The

¶61

 : 9 :

¶62

 learned trial Judge after considering the evidence has
 convicted the Appellants in Criminal Appeal No.37 of
 1990 for the offence against Ms.Kalpana and acquitted
 the accused for the offence against Ms.Smita.

¶63

 9. Shri S.D.Patil, the learned Counsel has taken me
 through the notes of evidence and other material on
 record. He pointed out that there were two separate
 First information reports registered. C.R.No.796 of
 1982 was in the case of an offence where the victim was
 Smita and the second one i.e. C.R.No.797 of 1982 was in
 respect of the offence where Kalpana was the victim. He
 pointed out that the FIR No.797 of 1982 was registered
 on the basis of the statement of PSI Shaikh. He pointed
 out that neither Shri Shaikh was examined as a witness
 nor a copy of the C.R.No.797 of 1982 was produced and
 proved which was the basis of the case of the
 prosecution. He submitted that PSI Shaikh who was the
 first informant in the FIR was not examined. He
 submitted that no material was produced on record to
 show that copies of both the first information reports
 were forwarded to the concerned Judicial Magistrate. He
 submitted that a strong adverse inference will have to
 be drawn on account of the failure of the prosecution
 not only to produce and prove the FIR No.797 of 1982 but

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 : 10 :

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 also for not examining PSI Shaikh who was a very
 important witness and who could have thrown light on the
 factual position. He submitted that these defects in
 prosecution case go to the root of the matter. He
 submitted that there could not have been investigation
 of the offence against Kalpana unless a F.I.R. was
 registered. He submitted that no evidence has been led
 to show that such F.I.R. was registered. He submitted
 that if F.I.R. would have been really in existence, the
 prosecution could have produced the acknowledgement
 showing that the same was received by the concerned
 Magistrate.

¶66

 10. He submitted that the registration of FIR was
 sine qua non for investigation of an offence and a
 serious doubt has been created regarding the existence
 of the FIR. He submitted that as the FIR itself was not
 produced and proved, there was no foundation for the
 prosecution case. He submitted that this was a case for
 drawing strong adverse inference for non-examination of
 P.S.I.Shaikh. He submitted that this was a case where

¶67

 the prosecution has made an attempt to withhold the
 evidence of an important witnesses from the Court.

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 11. He pointed out several discrepancies and

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 : 11 :

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 contradictions in the evidence of the prosecutrix
 Kalpana. He submitted that apart from the serious
 infirmities regarding non-production of FIR and
 non-examination of S.I. Shaikh, the said Smita turned
 hostile and did not supported the prosecutrix Kalpana.

¶71

 12. He pointed out that there were major

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 contradictions in the prosecution case regarding the
 existence of sufficient light on the terrace. He
 pointed out that on the one hand the prosecution was
 contending that there was adequate light on the terrace
 but on the other hand the evidence of the prosecution
 witnesses suggests that for the purpose of recording
 panchanama torches were required to be used. He
 submitted that considering the past conduct of Kalpana,
 the entire incident was highly improbable. He submitted
 that considering the serious infirmities in the
 prosecution case, a serious doubt is created about the
 genuineness of the prosecution case. He submitted that
 on this ground alone it was unsafe to base the
 conviction on the sole testimony of the prosecutrix. He
 submitted that as the investigation was defective, the
 accused persons were entitled for an order of acquittal.
 He submitted that offence under section 307 was not
 established as no clear role has been ascribed in the

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 : 12 :

¶74

 said office to each accused. He placed reliance on the
 several decisions. I will refer to the said decisions
 in the later part of this judgment.

¶75

 13. The learned Counsel for the Respondent No.2 has
 placed reliance on various decisions of the Apex Court
 and submitted that in a case of an offence of this
 nature

¶76

 the investigating officer should have shown utmost care
 and sensitively. She submitted that in view of the
 recent decisions of the Apex Court, even a corroboration
 is not required to the testimony of the prosecutrix.
 She submitted that the accused persons cannot rely upon
 some minor contradictions or lacuna of trifle nature
 unless substratum of the prosecution case is affected.
 She submitted that the law laid down by the Apex Court
 is that the conviction for an offence under section 376
 can be based on the uncorroborated testimony of the
 prosecutrix. She submitted that in case of a trial for
 an offence under section 376 of the Penal Code, all
 unnecessary technicalities are required to be kept
 aside. She submitted that considering the heinous
 nature of the crime, in fact a case for enhancement of
 substantive sentence as well as fine is made out.

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 : 13 :

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 14. The learned A.P.P relied upon certain decisions.
 The learned A.P.P in support of the Appeal against
 acquittal pointed out relevant documents and depositions
 on record. He submitted that though prosecutrix Smita
 did not fully support the prosecution, the F.I.R. was
 duly proved and there was enough evidence to connect the
 accused with the offence against the said Ms.Smita. He
 submitted that considering the nature of the crime, a
 case is made out for enhancement of sentence and fine.

¶79

 15. I have carefully considered the submissions. I
 have also perused the notes of evidence and the record
 of the case. The prosecution has examined 13 witnesses
 for establishing the guilt of the accused persons.
 There is documentary evidence on record in the form of
 panchanama, reports of the Chemical Analyser etc.

¶80

 16. Since I am considering all the appeals together,
 it will be necessary to refer to the evidence of P.W.1
 Ms.Smita alias Prachi Prakash Waradkar. She deposed
 that in the year 1982 she was residing at Mahim in a
 slum located behind the bus depot. She stated that she
 used to reside at the said place with her parents and
 her sister. She stated that her father, at the relevant
 time, was a photographer and used to start at 8.00 a.m.

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 : 14 :

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 for his duty and used to come back by 8.00 p.m.
 According to her even her mother used to undertake the
 work of stitching of clothes and earn livelihood. Her
 mother used to leave house around 9.00 in the morning
 and used to come back by 6.00 p.m. She stated that she
 has taken education upto 4th standard. After leaving
 her education incomplete, she was working as a maid
 servant doing domestic work. She stated that she was
 acquainted with Kalpana (P.W.4). She stated that she
 did not know the accused Nos.1 to 6. She stated that
 she had not seen any of the accused persons any time
 before. She stated that she did not remember whether
 Mahim Police had met her in the morning of 25th October
 1982. She stated that she did not lodge any complaint
 to Mahim Police Station. She was confronted with her
 statement reduced into writing on 25th October 1982
 before the Sub-Inspector of Mahim Police Station. She

¶83

 admitted her signature on the document and therefore,
 only the signature on the statement was exhibited and no
 other part of the statement was exhibited. At the
 instance of the prosecution, she was declared as a
 hostile witness and a permission was granted to the
 learned P.P to cross-examine the said witness. In the
 cross-examination, she stated that she did not know any
 of the accused persons. She stated that she did not

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 : 15 :

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 remember when she had gone to witness Garba dance in
 Navratri Festival. She stated that she was since
 married. She stated that she was unable to recollect if
 she had any love affair with accused No.1-Ramesh.

¶86

 17. About the incident of 24th October 1982, she
 stated that at 5.00 p.m. she herself and Kalpana
 proceeded to building No.13 to see certain
 T.V.programme. She admitted that she along with Kalpana
 (P.W.4) assembled together at 9.15 p.m. and went to see
 Garba dance programme at Shirke colony. She stated that
 she saw accused Ramesh proceeding towards building
 No.17. She admitted that she was taken behind building
 No.23 by someone forcibly but she did not recollect his
 name. She further stated that in the passage between
 the southern wall of building No.23, she was forcibly
 pushed down by Ramesh and was trying to use force, but
 she ran away from the spot. In paragraph 11, she stated
 as under:

¶87

 "It is true that I was raped by some one
 during that night and on the said spot, but I
 cannot say who he was. Now says that I was
 not raped but I immediately run away as soon
 as I fell down. It is not true that Ranjan

¶88

 : 16 :

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 had forcible intercourse with me thereafter I

¶90

 do not remember once Suresh deo also came
 there and after seeing him I run away from the

¶91

 spot."

¶92

 She was shown certain clothes taken out from a bundle
 produced by the prosecution. She admitted that clothes
 might be her clothes. She was also cross-examined by
 the Advocate appearing for the Accused. As narrated
 earlier, only the signature of the said witness below
 her statement was exhibited and no part in the said
 statement was exhibited.

¶93

 18. This takes me to the evidence of the important
 witness, namely Ms.Kalpana P.W.4. The entire case
 revolves around the deposition of Kalpana. Kalpana has
 been also cross examined at length. P.W.4 Kalpana
 identified the accused persons before the Court. She
 stated that the accused were sitting in the Court in the
 sequence of the names mentioned in the charge sheet.
 She stated the first names of all the accused before the
 Court. She stated that along with the accused persons,
 one Shyam was also their companion. She has stated that
 she knew the accused persons as all of them frequently
 visited the house of one Gotya who was staying in

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 : 17 :

¶95

 Building No.9 in which she was staying. She narrated
 that 8 days prior to the incident, she along with her
 friend Smita had gone out to see a movie on television.
 Thereafter they proceeded to see Ramlila programme at
 Shivaji Park. She stated that while they were
 witnessing Ramlila programme, she found the Accused
 No.1-Ramesh and the Accused No.4-Raju standing behind
 them. She stated that thereafter accused no.1-Ramesh
 took Smita with him. She stated that since Smita had
 gone with Ramesh, she lost interest in Ramlila and
 therefore, she decided to return back to her home.
 According to her, the Accused No.4 Raju followed her
 upto Mahim and thereafter he stopped her. At that time
 Accused No.4 proposed that she should marry with him.
 However, she informed him that she was not willing to
 talk on the subject.

¶96

 19. She stated that on the date of the incident at
 about 9.00 p.m., she alongwith Smita left their
 respective homes to see Garba programme in Police
 Quarters. According to Kalpana, both of them saw the
 programme upto 10.00 p.m. At that time Smita pointed
 out that the Accused No.1-Ramesh and Accused No.4-Raju
 were present. She told Smita that if the said two
 persons were present, it was not desirable to remain at

¶97

 : 18 :

¶98

 that place. Both of them accordingly started towards
 their home. When she looked back, while on the way back
 to her residence, she found the Accused No.1-Ramesh and
 Accused No.4-Raju were following her and Smita and
 therefore, both of them were very frightened. She
 described how both of them managed to hide below the
 staircase of the building No.17. According to her, the
 Accused no.1-Ramesh caught hold of the hand of Smita and
 took her away. She also described the manner in which
 Accused No.4-Raju took her to the terrace of Building
 No.17. The relevant part of what P.W.4 Kalpana has
 stated in her evidence reads thus:

¶99

 "3. Accused Raju took me thereafter to
 the terrace of building No.17. He asked me
 to sit by his side, and therefore I had to
 set by his side. Raju then told me that I
 should marry him but I refused his proposal
 and told him that I was regarding him as my
 brother and I had no intention to marry.
 Thereafter I started leaving the place but he
 held my hand and said that I should have
 sexual relationship with him. I resisted and
 I got up to leave for my home. Accused Raju
 forced me to sit and threatened that if I

¶100

 : 19 :

¶101

 cried, he would call his friends. As I was
 frightened I again attempted to leave the
 place, but in the meantime Ramesh came there
 alongwith the remaining accused. Out of
 fright I was going to raise a cry for help
 but accused Suresh took out his shirt and
 thrust into my mouth to silence me. Before
 this was done by Suresh, Ramesh had asked me
 in a threatening voice how and where I was
 going to flee. His words were "Kaha Jaogi
 Bulbul". After thrusting the shirt in my
 mouth Suresh had also pressed my mouth and
 nose also and I was feeling suffocated.
 Thereafter Raju and Bala held my hands and
 legs. Ramesh ordered them to push me down
 and I was forcibly made to by the accused
 though I was resisting. Ramesh then said
 that Raju was incapable to have sexual
 intercourse with me and therefore, he
 (Ramesh) would have the same with me first.
 Ramesh then removed all his clothes. At that
 time I was putting a skirt and a top. My
 skirt, the top and thereafter the under
 garments were removed. Then Ramesh had
 forcible sexual intercourse with me and

¶102

 : 20 :

¶103

 thereafter all the accused in succession

¶104

 raped me. There was one more assailant at
 that time and he had also committed rape on
 me but he is not present in Court today. He
 name was Shyam. Thereafter Ramesh ordered
 the remaining accused to lift me up and throw
 me down the terrace and accordingly all the
 accused lifted me up and threw me from the
 terrace, and fell down on the ground. On
 account of pain, fear and agony I yeilled
 "Deva Vachava" (O’God save me). My clothes
 were on the terrace itself in all
 probability. Accused No.5 Suresh had taken
 out his shirt and thrust it into my mouth.
 There are electric lights in our colony.
 There are electric lights in front of
 building No.17. On that day all the lights
 in building No.17 and the common passage were
 on and burning. So also were the street
 lights. There was adequate moon light on the
 date of the incident and therefore, I was in
 a position to identify the accused clearly
 and distinctly."

¶105

 20. She stated that Accused No.4-Raju was wearing a

¶106

 : 21 :

¶107

 chocolate colour trouser and white shirt. She was shown
 the clothes of Accused No.4 Raju which she identified.
 She also identified her clothes which she was waring at
 the relevant time. She stated that her statement was
 recorded three days after the incident and that also in
 the hospital.

¶108

 21. Kalpana was extensively cross-examined by the
 Advocate appearing for the Accused persons. In the
 cross-examination, she was unable to tell the full name
 of Gotya whom the accused persons used to visit. She
 stated that she was not introduced by the said Gotya or
 any of his family members to any of the visitors of
 Gotya and she came to know the names of the accused
 (except accused No.1-Ramesh and Accused No.4-Raju)
 because at the time of incident, their names were taken
 by the said accused persons. In response to a question
 in the cross-examination, she stated that every accused
 was asked to do some specific overt act in the said
 incident by the Accused no.1-Ramesh. She denied the
 suggestion that except Ramesh and Raju, she had not seen
 the other accused prior to the incident. She clarified
 that she had seen Accused Nos.2, 3, 5 and 6 many times
 prior to the incident as they used to frequently came to
 her building. She stated that she had seen all the

¶109

 : 22 :

¶110

 accused in the building on the date of commencement of
 Navaratri festival. She stated that she had no occasion
 to speak to accused no.4 Raju. She stated that she
 became semi-conscious before she was thrown down from
 the terrace and she regained consciousness after about 3
 days. She stated that she was unable to tell when the
 accused persons were produced in the Hospital for
 identification.

¶111

 22 She admitted that she had told Accused No.4 Raju
 when she was taken to Vivekanand park that her marriage
 was already settled. She stated that she was unable to
 say whether the accused No.4 Raju became unhappy when
 she turned down his proposal. She denied the
 correctness of the suggestion that she got angry with
 accused Raju only because he was asking her to marry
 with him. She stated that she left the place because
 she was not desirous of talking to accused No.4-Raju any
 more.

¶112

 23. She was cross-examined on her allegation
 regarding the offence under section 376 of the said
 Code. She stated that one of the accused had held both
 her hands and the other accused held both her legs. She
 stated that both her wrists were held. She stated that

¶113

 : 23 :

¶114

 she was made to lie down and her ankles were held. She

¶115

 stated that her legs were spread by the accused persons
 and the accused persons who held her legs were by her
 side. She stated that she tried to free her hands and
 legs. At this stage it will be necessary to note a
 disturbing feature of this case. The learned trial
 Judge permitted the Advocate appearing for the Accused
 to ask certain questions which really ought not to have
 been allowed. A question was asked as to how much time
 the intercourse by each of the accused continued or
 lasted.

¶116

 24. The prosecutrix was also cross-examined on the
 allegation of the prosecution regarding the offence
 under section 307 of the Penal Code. She stated that
 she had closed her eyes when the Accused threw her down.
 She stated that the words "Deva Vachawa" were uttered by
 her when she was thrown by the accused. She stated that
 she was constantly crying "Deva Vachawa" when she was
 falling down. She stated that after she fell down she
 cried "Deva Vachawa".

¶117

 25. It will be necessary to refer to the evidence of
 the other witnesses examined by the prosecution. The

¶118

 : 24 :

¶119

 mother of the prosecutrix Kalpana by name Savitri Laxman
 Dhamankar was examined as P.W.2. She stated that in the
 year 1982 Kalpana might have completed 16 years of age.
 She stated that she was working as a vegetable vendor
 and she returned to her house on 24th October 1982 at
 about 9.00 p.m. She stated that when she returned to
 her house she found that Kalpana was not there. She was
 told by Kalpana’s elder sister that she had gone to see
 Garba dance programme along with Smita (P.W.1). She
 stated that she was anxious and she could not sleep as
 she was worried. She stated that around 11.00 p.m. a
 boy visited her residence and told her that Kalpana had
 fallen down. She stated that name of the boy was Raju.
 She stated that thereafter she rushed to the place. She
 stated that some Police Officers were present at the
 place and she was told that her daughter has been taken
 to KEM Hospital. She visited KEM Hospital and when she
 found that her daughter was in unconscious condition. A
 capital was sought to be made out by the learned Counsel
 appearing for the Accused by contending that the person
 Raju named by P.W.2 was the Accused No.4. In
 examination-in-chief P.W.2 has not stated that the said
 Raju was the Accused No.4. It is pertinent to note that
 even in the cross-examination, a suggestion was not
 given to the said witness that the boy Raju referred by

¶120

 : 25 :

¶121

 her was the Accused No.4.

¶122

 26. P.W.3 Ali Abdul Ali Barodawala stated that he
 was a resident of the building No.23 in Fishermen Colony
 at Mahim. He stated that on 24th October 1982 late in
 the night while he was reading, he heard a noise "thud"
 as if something had fallen on the ground from a
 considerable height. Immediately thereafter he heard
 that someone was crying. He immediately went down. He
 found that a girl had fallen and was crying "Deva
 Wachava" (save me, O God). He stated that the girl had
 fallen down near building No.17 which is opposite the
 Building No.23 in which he was residing. He started
 shouting for help and he was told that a girl had fallen
 down. He stated that he went to Mahim Police Station

¶123

 and informed Police about the incident. The Police
 accompanied him back to the spot. He stated that by the
 time he returned to the spot, the girl was unconscious.
 The Police took the girl to the KEM Hospital and he also
 accompanied the Police. He returned after sometime. He
 identified the prosecutrix Kalpana in the Court. In the
 cross-examination he stated that Building Nos.23 and 17
 are identical in height. He stated that he did not
 notice that the people had gathered in the balconies.
 It was pointed out to him that he had stated before the

¶124

 : 26 :

¶125

 Police that he had noticed that some people had gathered
 in the balconies of the buildings. He stated that
 because of lapse of period of seven years, he was unable
 to recollect all the minute details.

¶126

 27. P.W.5 Ali Akbar Abdul Latif is a panch witness.
 He is a witness to the panchanama of the spot where

¶127

 Kalpana was found lying near building no.17. He stated
 that there were some blood marks on the spot. He stated
 that there were some pieces of bangles scattered on the
 ground. He stated that a handkerchief used by ladies
 was also found on the ground. He stated that there was
 sufficient light from the surrounding street lights. He
 described the manner in which the Police seized the
 pieces of bangles and the handkerchief. He stated that
 sample of blood stained soil was also collected by the
 Police and the articles were sealed. He stated that

¶128

 thereafter he along with other panch witnesses and
 police went to the terrace of the building. He stated
 that there was a moon light and some light was available
 from reflection of the illumination of the surrounding
 buildings. He stated that the Police were carrying
 torch. He stated that in the light of the torch he saw
 an underwear which was identified by a young lady by
 stating that it was her sister’s underwear. A

¶129

 : 27 :

¶130

 Panchanama was drawn which was proved in his evidence.
 The same panch witness was called in the morning of 25th
 October 1982 to the Police Station. A girl was present
 whose clothes were seized under panchanama. He is also
 a panch witness to the panchanama under which the
 clothes of two accused persons were seized.

¶131

 28. P.W.6 is one Shri Vasudev Aithu Devadiga. He
 was examined for production of the birth register
 maintained by Poddar Hospital at Mumbai. He brought the
 original birth register for the period of 1963 to 1966,.
 He proved entry at Sr.No.533 which showed that the
 mother of the prosecutrix Savitri delivered a female
 child on 5th September 1965.

¶132

 29. Dr.Hemant Shantaram Kulkarni, P.W.7, was
 attached to the KEM Hospital as a House Surgeon at the
 relevant time. He produced the complete set of the
 original case papers of the prosecutrix Kalpana from
 page Nos.1 to 44 maintained by KEM Hospital. He
 described the injuries on the person of Kalpana as
 reflected from the case papers. According to him the
 following external injuries were noted by the Registrar:

¶133

 "a) Crush injury on right elbow it was contused

¶134

 : 28 :

¶135

 lacerated wound 5"x3" in size along with front
 of elbow with compound dislocation lower end of
 humerus (exposed).

¶136

 b) A contused lacerated wound of 1"x1/2" over the
 ulnar border. This injury was on right wrist
 and had swelling and tenderness.

¶137

 c) Swelling, tenderness and deformity was noted on
 the upper third portion of the right thigh. No
 neurovescular damage was noted."

¶138

 He stated that the X-ray examination revealed that there
 was dislocation of right elbow, comminuted fracture of
 radius and ulna and a fracture of shaft femur bone upper
 third right side. He stated that apart from above
 external injuries, there were external injuries in the
 form of switching premier dorsolumbar spine. It was
 revealed that the Prosecutrix had suffered a fracture of
 12th rib on right side, compression fracture of 1st
 lumber vertebra and fracture interior remus of pubis on
 right side. He stated that the injuries which were
 found on the person of the prosecutrix Kalpana are
 possible if she was thrown from the terrace of a five
 storied building to the ground. He stated that the

¶139

 : 29 :

¶140

 contused lacerated wound on the elbow of the prosecutrix
 was possible if hands of the prosecutrix were tightly
 held and in her attempt to free herself they are rubbed
 against a rough surface. He stated that the CLW injury
 on the wrist is possible if that portion of body is
 rubbed against a hard or rough surface. He opined that
 if there was no immediate medical treatment available to
 the prosecutrix Kalpana, the injuries would have been
 fatal. In the cross-examination he stated that at the
 relevant time, he was doing post-graduation in surgery.
 He was asked various questions regarding the entries
 made in various registers and the signature of the
 doctors on the case paper maintained by the KEM
 Hospital.

¶141

 30. P.W.8 Dr.Umesh Ranga Pai was the Casualty
 Officer in the KEM Hospital at the relevant time. He
 produced the original register of medico-legal cases
 maintained by the KEM Hospital. After referring to the
 entry of the prosecutrix Kalpana, he described the
 injuries on the person of Kalpana as noted in the
 register. In the cross-examination he stated that in
 the column regarding age of the patient, age of Kalpana
 was earlier written as 18 years.

¶142

 : 30 :

¶143

 31. P.W.9 Dr.Arun Biharilal Shah was working as
 Registrar at the relevant time of the General Surgery
 Department of the KEM Hospital. He stated that he
 examined the prosecutrix Kalpana on 25th October 1982 at
 about 2.00 p.m. By that time, she was already examined
 and treated in the casualty department by the Trauma
 Registrar. He noticed that the patient was not wearing
 any underwear and her skirt was stained with blood. He
 also noticed that there were suspected stains of semen
 on the skirt. He stated that on examination vagina,
 blood was seen at the vaginal orifice. The anterior
 border of vaginal orifice was lacerated. He stated that
 as soon as injuries on the vagina were noted, a
 Gynaecologist was called. There is hardly any challenge
 to the version of the said witness in the cross
 examination.

¶144

 32. P.W.10 Dr.Dattatraya Madhusudan Nadkarni was

¶145

 working as a Registrar of the Psychiatric Department of
 the KEM Hospital at the relevant time. He stated that
 as per the general practice adopted by the Hospital in
 medico legal cases, a psychiatrist is called to examine
 the patient. He stated that when he examined Kalpana
 she was fully conscious but on account of mental shock
 she was talking irrelevantly. He stated that he noted

¶146

 : 31 :

¶147

 in the case papers that "No psychological stress factors

¶148

 at home". He found that before the incident that had
 resulted into depression, she was a normal girl and
 there was no history of hallucinatory behaviour nor of
 delusion etc. In the cross examination, P.W.10 stated
 that the patient was in such a depressed mood that she
 did not appear to have any interest to survive or remain
 alive.

¶149

 33. Dr.Bhimrao Pundali Brahmane (P.W.11) was
 attached to the Police Hospital at Nagpada as a Medical
 Officer at the relevant time. He examined P.W.1 Smita.
 He stated that he examined P.W.1 on 25th October 1982
 and after examination of the external genitals he found
 that prior to his examination, she was subjected to
 sexual intercourse and she was not used to sexual
 intercourse. He also deposed about examination of
 accused persons and he proved the certificates issued by
 him in evidence.

¶150

 34. Dr.Ajanta Nitin Narvekar (P.W.12) was at the
 relevant time working as Registrar in the Gynaecological
 Department of the KEM Hospital. On 24th October 1982
 she examined the prosecutrix Kalpana. She stated that
 there was minimal bleeding from vagina and there was

¶151

 : 32 :

¶152

 slight laceration of hymen. She stated that she could
 definitely say that the patient had sexual intercourse.

¶153

 35. P.W.13 Bhagwantrao Bandu Patil was the Inspector
 of Police attached to Mahim Police station who acted as
 Investigating Officer. He stated that 00.45 hours,
 Sub-Inspector Shaikh and P.W.3 Barodwala informed him
 that a girl had fallen down and was lying in a serious
 condition in front of building No.17 in Fishermen
 Colony. He along with S.I. (Sub-Inspector) Shaikh,
 Barodawala and other Police staff rushed to the spot.
 He stated that he noticed that the girl was lying in an
 injured condition on the road between building Nos.17
 and 23. He stated that the girl was unconscious and she
 had injuries on her right hand and left leg. He stated
 that he took the girl to KEM Hospital by a Police jeep.
 He stated that the girl was admitted to the KEM

¶154

 Hospital. In the meanwhile the mother of the girl
 Savitribai and her sister came to the Hospital with the
 help of the staff. They identified the said girl as
 Kalpana. He stated that by the time he went back to the
 spot, the Police had arrested Accused Nos.1 and 2. He
 has narrated the version of P.W.1 Smita. However, I am
 not referring to the portion of that evidence, as the
 same may not be admissible. He described the manner in

¶155

 : 33 :

¶156

 which the panchanama was made. He stated that on the

¶157

 spot where the girl was fallen down, the Police found
 pieces of red bangles and a handkerchief. He noticed a
 patch of blood on the spot. He stated that on the
 terrace of building No.17, the Police found pieces of
 bangles and an underwear. He stated that the said
 articles were seized. He identified the Articles in the
 Court. He stated that panchanama of the spot of
 occurrence as shown and pointed by P.W.1 Smita was
 prepared by S.I. Shaikh. He stated that he recorded
 the statement of P.W.1 Smita as a F.I.R. vide Crime
 No.796 of 1982. He stated that in the meanwhile he
 received information from KEM Hospital that the
 prosecutrix Kalpana was subjected to sexual intercourse.
 Therefore, in respect of offence against Kalpana he
 recorded F.I.R. of Sub-Inspector Shaikh and registered
 an offence vide C.R.No.797 of 1982. He stated that the

¶158

 statement of P.W.1 was recorded by S.I. Shaikh in his
 presence. He stated that S.I. Shaikh recorded
 statement of P.W.3 in his presence. He also described
 the manner in which the accused persons were arrested.

¶159

 He also stated that blood samples of the accused and the
 victims were collected and sent to the Chemical
 Analyser. He also pointed out that the various articles
 which were seized were sent to the Chemical Analyser.

¶160

 : 34 :

¶161

 36. In the cross-examination, he admitted that he
 was placed under suspension in March 1982. However, his
 suspension was revoked within a fortnight. He answered
 various questions regarding the location of the building
 No.17. In the cross-examination, the following question
 was sought to be asked by the Advocate for the Accused:

¶162

 Q. I call upon you to produce the F.I.R.

¶163

 of S.I. Shaikh on the basis of which

¶164

 C.R.No.797/82 was registered?

¶165

 After an objection was raised by the learned P.P. to
 the said question, the learned Advocate for the Accused
 agreed to defer the said question. The witness admitted
 that he himself and S.I. Shaikh were together during
 the entire enquiry and investigation. He stated that he
 recorded the statement of S.I. Shaikh. He stated that
 when he reached the spot, he interrogated persons
 gathered there. He stated that he was unable to
 remember their names. He denied the suggestion that
 while interrogating occupants of building No.17, he got
 important clues from them but he deliberately did not
 record their statement. He stated that nobody was
 sleeping on the terrace when he went for investigation.

¶166

 : 35 :

¶167

 He also stated that torches were used for examining the

¶168

 surface of the terrace and the entire terrace was
 examined by the Police. He has denied the suggestion
 that the articles which were seized from the ground and
 the terrace were not sealed. He stated that both the
 First Information Reports were forwarded to the learned
 Magistrate. He however stated that he was not
 possessing the acknowledgements given by the Court in
 that behalf. He stated that he did not record the
 statement of the Constable who produced the clothes on
 the person of Kalpana from the KEM Hospital. He has
 also stated the manner in which he recorded the
 statement of prosecutrix Kalpana after getting
 endorsement from the Doctor. He stated that he did not
 obtain endorsement of the Doctor on the statement of
 Kalpana.

¶169

 37. Apart from this oral evidence, there are medical
 certificates of the accused persons as well as the
 prosecutrix and reports of the Chemical Analyser.
 Exh.59 is one such report of the Chemical Analyser. It
 is noted in the said report that the skirt and shirt of
 Kalpana had innumerable blood stains ranging from 0.1 cm
 to 10 cms. spread at places. The report at Exh.57
 shows that blood group of the prosecutrix Kalpana is

¶170

 : 36 :

¶171

 "A". The report at Exh.59 shows that the skirt and half
 shirt on the person of Kalpana was stained with blood of
 "A" group. The report also disclosed that on the skirt
 there were semen stain of blood group "A". Undergarment
 of the prosecutrix Kalpana had several stains of semen
 of blood groups A and B.

¶172

 38. Before adverting to the submissions made by the
 learned Counsel appearing for the Accused, it will be
 necessary to refer to the decision of the Apex Court in
 the case of State of Punjab v/s. Gurmit Singh and
 others [(1996) 2 SCC 384). While dealing with the case
 of a sexual assault on a woman, the Apex Court held
 thus:

¶173

 (a) The testimony of the victim of sexual assault

¶174

 is vital and unless there are compelling reasons
 which necessitate looking for corroboration of
 her statement, the courts should find no
 difficulty in acting 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.

¶175

 (b) Seeking corroboration of her statement for

¶176

 : 37 :

¶177

 relying upon the same, as a rule, in such cases
 amounts to adding insult to injury.

¶178

 (c) While appreciating the evidence of a
 prosecutrix, Court may look for some assurance
 of her statement to satisfy its judicial
 conscience.

¶179

 (d) While evaluating evidence of the prosecutrix,

¶180

 the Court should remain alive to the fact that

¶181

 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

¶182

 is involved in the commission of rape on her.

¶183

 (e) The evidence of a victim of sexual assault

¶184

 stands almost on par with the evidence of an
 injured witness and to an extent is even more
 reliable. The evidence of a victim of a sexual
 offence is entitled to great weight, absence of
 corroboration notwithstanding.

¶185

 (f) 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

¶186

 : 38 :

¶187

 undesirable to test her evidence with certain
 amount of suspicion.

¶188

 (g) The Courts shoulder a great responsibility while
 trying an accused on charges of rape. The The
 Court must deal with such cases with utmost
 sensitivity and should examine the broader
 probabilities of a case and not get swayed by
 minor contradictions or insignificant
 discrepancies in the statement of the
 prosecutrix to throw out an otherwise reliable
 prosecution case. If evidence of the
 prosecutrix inspires confidence, it must be
 relied upon without seeking corroboration of her
 statement in material particulars.

¶189

 (h) The Court must bear in mind that a girl in a
 tradition-bound non-permissive society in India,
 would be extremely reluctant even to admit that
 any incident which is likely to reflect upon her
 chastity had occurred, being conscious of the
 danger of being ostracized by the society or
 being looked down upon by the society.

¶190

 (i) The Court should not sit as a silent spectator

¶191

 : 39 :

¶192

 while the victim of crime is being
 cross-examined by the defence. It must
 effectively control the recording of evidence in
 the Court. The Court must ensure that
 cross-examination is not made a means of
 harassment or causing humiliation to the victim
 of crime, considering the fact that the victim
 has already undergone a traumatic experience and
 if she is made repeat again and again, in
 unfamiliar surroundings what she had been
 subjected to, she may be too ashamed and even
 nervous or confused to speak.

¶193

 39. In the case of State of Rajasthan v/s. N.K.
 [(2000) 5 SCC page 30), the Apex Court held that the
 failure of the prosecution to produce the witness to
 whom the prosecutrix narrated the entire story after
 rape is not fatal. The Apex court held that an
 unmerited acquittal does no good to the society and
 therefore, the Courts have to display a greater sense of
 responsibility and to be more sensitive while dealing
 with the charges of sexual assault on women.

¶194

 40. The submissions of the learned Counsel appearing
 for the Accused will have to be appreciated in the light

¶195

 : 40 :

¶196

 of the well settled principles laid down by the Apex
 Court. If the examination-in-chief of the Prosecutrix
 is read, it is obvious that the Prosecutrix has narrated
 various facts leading to the commission of offence in a
 very coherent manner. Her evidence will have to be
 appreciated in the light of the fact that late in the
 night six accused had taken her to the terrace. She
 stated that Accused Ramesh removed all her clothes. She
 described that Ramesh had forcible sexual intercourse
 with her and thereafter all the other accused persons in
 succession raped her. She stated that after the said
 offence, the accused Ramesh ordered the remaining
 accused to lift her and to throw her down from the
 terrace. She stated that accordingly all the accused
 persons lifted her and threw her down from the terrace.

¶197

 41. Criticism was made by the learned Advocate for
 the Accused of the evidence of prosecutrix Kalpana by
 pointing out that she has not ascribed any specific role
 to any accused person in alleged act of lifting her and
 throwing her down from the terrace. He submitted that
 it is not possible for the prosecutrix Kalpana to
 identify each and every accused and in fact she had
 committed a mistake while identifying the accused
 persons in Court. The prosecutrix has stated that she

¶198

 : 41 :

¶199

 knew the accused persons by face as they used to come to
 the place of one Gotya who was residing in the same
 building. She stated that at the time of the incident,
 the names of all the accused persons were specifically
 taken by Ramesh and they were asked to do some specific
 overt act. She denied the suggestion that except for
 accused Ramesh and Raju she had not seen any other
 accused prior to the incident. She had clearly narrated
 that after the offence under section 376 was committed,
 the Accused Ramesh directed all other accused persons to
 lift her and throw her down from the terrace. She had
 deposed that accordingly all the accused persons lifted
 her and threw her down from the terrace. Her version
 that she was shouting "Deva Wachava" has been
 sufficiently corroborated by P.W.3 Barodawala. The
 medical evidence sufficiently corroborates her version.

¶200

 42. The learned Counsel for the Accused tried to
 create a doubt about the offence under section 376 being
 committed by all the accused persons by pointing out
 that there were no injuries on the private parts of the
 prosecutrix. He also submitted that the prosecutrix was
 unable to tell as to how the skirt was on her person
 when she was taken to the hospital.

¶201

 : 42 :

¶202

 43. At this stage it will be necessary to refer to
 the evidence of the Medical Officers which is on record.
 P.W.9 Dr.Arun Shah has stated that he examined the
 victim, he found that she was not wearing any underwear
 and her skirt was stained with blood. He also noted
 that there were suspected stains of semen on her skirt.
 He stated that on examination of vagina, blood was seen
 at the vaginal orifice and anterior border of vaginal
 orifice was lacerated. P.W.12 Dr.Ajanta Narvekar who is
 a Gynaecologist examined the patient on 24th October
 1982 as well as on 28th October 1982. She stated that
 there were minimal bleeding from vagina and there was
 slight laceration of hymen. The oral and documentary
 evidence on record clearly shows that there was vaginal
 bleeding and there were injuries on the private parts of
 the prosecutrix Kalpana. It will be also necessary at
 this stage to refer to the another decision of the Apex
 Court in the case of Dastagir Sab and another v/s.
 State of Karnataka (AIR 2004 S.C. 2884). The Apex
 Court has referred to its earlier decisions and has held
 that the injury on the body of person of the victim of
 rape is not a sine qua non to prove the charge of rape.
 As indicated earlier, the report of the Chemical
 Analyser completely supports the prosecution which
 discloses that there were stains of semen on the skirt

¶203

 : 43 :

¶204

 as well as on the underwear of the prosecutrix.
 Considering the ghastly nature of the offence, it is
 very difficult to find fault with the prosecutrix if she
 was not able to precisely describe as to where her
 clothes were lying. There is nothing on record to
 discredit the version of prosecutrix Kalpana. Her
 version is most natural. There is absolutely no attempt
 to exaggerate in her evidence. The medical evidence
 referred to above is sufficient assurance or even a
 corroboration to her testimony.

¶205

 44. The other aspect of the medical evidence would
 be relevant as offence under section 307 of the Penal
 Code has been alleged. A perusal of the medical
 certificate shows extensive injuries on the person of
 the prosecutrix Kalpana. It is also important to note
 the place where the prosecutrix Kalpana fell down. The
 place is at a considerable distance from the edge of the
 building. As stated earlier, the prosecutrix Kalpana
 deposed that she was constantly shouting "Deva Wachava"
 (O’ God save me) after she was thrown down by the
 accused persons. P.W.3 Barodawala has also deposed to
 that effect. By no stretch of imagination it can be
 said that the prosecutrix Kalpana jumped on her own from
 the terrace. Use of the aforesaid words by her is

¶206

 : 44 :

¶207

 completely against the theory that she jumped from the
 terrace.

¶208

 45. The evidence of P.W.7 Dr.Kulkarni is very
 relevant. In paragraph 5 of his deposition he has
 stated thus:

¶209

 "5. All these injuries which were found on
 the person of Kum.Kalpana are possible if she
 was thrown from the terrace of a five storied

¶210

 building on the ground."

¶211

 In the same paragraph he has further deposed:

¶212

 "All these injuries were fatal in nature if
 there was no medical treatment immediately

¶213

 given to the patient."

¶214

 The injuries on the person of the prosecutrix Kalpana
 are already referred to in earlier part of this
 Judgment. A perusal of the cross-examination of
 Dr.Kulkarni (P.W.7) shows that there is no serious
 challenge to the aforesaid opinion expressed by
 Dr.Kulkarni. The prosecutrix Kalpana has clearly stated
 that the Accused Ramesh directed all the Accused persons

¶215

 : 45 :

¶216

 to lift her and throw her down. It is not brought on

¶217

 record that any one else except accused were present on
 the terrace when Kalpana was thrown down. A perusal of
 the evidence of the prosecutrix Kalpana shows that all
 the accused persons on the direction of Ramesh lifted
 her physically and she was thrown down. As stated
 earlier, Dr.Kulkarni has stated that if timely medical
 treatment would not have been given, the injuries would
 have been fatal in nature. There is hardly any
 challenge to the said opinion expressed by Dr.Kulkarni.
 The terrace on which the offence under section 376 of
 the Penal Code was committed is above the fourth floor.
 It is obvious that the accused persons had full
 knowledge that by throwing the prosecutrix Kalpana from
 the terrace above 4th floor it was likely to cause
 death. In any case the accused persons knew that the
 act of throwing the prosecutrix Kalpana was so dangerous
 that it must in all probability cause such bodily injury
 as to cause death of the prosecutrix. Therefore, the
 offence under section 307 of the Penal Code has been
 proved. Section 34 of the Penal Code is also squarely
 applicable.

¶218

 46. The learned Counsel for the accused submitted
 that the F.I.R. on the basis of which investigation was

¶219

 : 46 :

¶220

 started was not at all produced and proved before the
 Court. He submitted that there was no document on
 record to show that the F.I.R. was forwarded to the
 Magistrate. He submitted that the F.I.R. was recorded
 on the basis of the statement of S.I. Shaikh and the
 said Shaikh was not examined. He placed reliance on the
 decision of the Apex Court in the case of Ishwar Singh
 v/s. The State of U.P. (1976 Cr.L.J. 1883). He
 submitted that the examination of Sub-Inspector Shaikh
 was essential for unfolding the prosecution case and
 therefore, the failure to examine S.I. Shaikh who was
 very much available in Police service is fatal to the
 prosecution case. So far as S.I. Shaikh is concerned,
 it is obvious that he was not an eye witness to the
 incident. On the basis of his statement, the F.I.R.
 was recorded. In the present case I have already found
 that the evidence of the prosecutrix Kalpana was cogent,

¶221

 reliable and worthy of acceptance. Therefore, the
 failure to examine S.I. Shaikh will not be fatal to the
 case of the prosecution. So far as the non-production
 of F.I.R. is concerned, the registration of the F.I.R.

¶222

 is not in dispute. The registration of a F.I.R. is a
 condition precedent for investigation. The F.I.R. is
 not a substantive piece of evidence and failure to
 produce F.I.R. in the facts of the present case will

¶223

 : 47 :

¶224

 not vitiate the trial and the consequent conviction of
 the accused persons.

¶225

 47. It is well settled law that some deficiency in
 the investigation will not affect the conviction, if
 evidence on record is sufficient to prove the guilt of
 the accused. In my view no fault can be found with the
 finding recorded by the learned trial Judge as regards
 the conviction of the accused persons under sections 307
 and 376 of the Penal Code.

¶226

 48. Before adverting to the question as regards the
 sentence, it will be necessary to refer to the important
 aspect as regards the manner in which the investigation
 was carried out and prosecution was conducted.

¶227

 49. In the present case the F.I.R. of Sub-Inspector

¶228

 Shaikh was registered. The said F.I.R. is not

¶229

 produced. S.I. Shaikh is not examined. The

¶230

 Investigating Officer has not at explained as to why
 S.I. Shaikh was not examined or as to why a copy of a
 F.I.R. is not produced. The Investigating Officer

¶231

 could not produce any document to show that the F.I.R.
 was forwarded to the Magistrate in accordance with the
 law. In my view these are lapses on the part of the

¶232

 : 48 :

¶233

 Police machinery. It is necessary for the Commissioner
 of Police, Mumbai, to ascertain whether there is any
 dereliction of duty on the part of the Police Officer
 Shri Shaikh and Shri B.B.Patil. If he finds that there
 is dereliction of duty, it is for the Commissioner of
 Police to initiate appropriate action in that behalf.

¶234

 50. So far as the Appeal against acquittal is
 concerned, the victim Smita i.e. P.W.1 has not

¶235

 supported the prosecution and the victim has turned
 hostile. Therefore there is not merit in the Appeal
 against acquittal. In the circumstances, the Appeal
 against acquittal is liable to be dismissed.

¶236

 51. So far as the appeal preferred by the State for
 enhancement of sentence is concerned, I find that the
 Accused persons have been sentenced to undergo rigorous
 imprisonment for 7 years for offence under section 307
 and a fine of Rs.500/- has been made payable. So far as
 offence under section 376 of the Penal Code is concerned
 the conviction is for 7 years. A fine of Rs.300/- each
 has been awarded. It is true that the offence is very
 grave and horrifying. A hapless prosecutrix was taken
 to the terrace of the building and raped and thrown down
 from the terrace above the fourth floor. The young

¶237

 : 49 :

¶238

 prosecutrix has suffered a number of serious injuries.
 There are scars of injuries all over her body. Her life
 has been completely ruined and shattered. Looking to
 the nature of crime committed, this is a fit case for
 enhancing the sentence. However, the offence has been
 committed in October 1982. The Accused are on bail.
 After such a long lapse of time, it will be very
 improper to enhance the substantive sentence. It is
 true that for no fault on the part of the prosecutrix,
 the Appeal remained pending in this Court for a long
 time. However, recourse will have to be taken to
 section 357 and the prosecutrix will have to be
 compensated. I have heard the Counsel appearing for the
 parties. The learned Counsel appearing for the
 Prosecutrix submitted that considering the trauma which
 is undergone by the Prosecutrix and considering the
 injuries sustained by her, this is a fit case where a
 total compensation of Rs.5 lakhs must be ordered to be
 paid to the prosecutrix.

¶239

 52. In the midst of the Judgment, I had granted time
 to Shri Patil appearing for the Appellants to argue on
 this issue. He submitted that the fine is already
 awarded under the impugned Judgment and Order and in
 view of the decision of the Apex Court in the case of

¶240

 : 50 :

¶241

 Rachhpal Singh and another v/s. State of Punjab [(2002)
 6 S.C.C. page 462] an order under section 357 cannot be
 passed at this stage. The trial Court has imposed fine
 of Rs.500/- each for offence under section 307 and a
 fine of Rs.300/- each for offence under section 376. As
 I have noted earlier, the offence is a most heinous
 crime against the society at large as it affects the
 dignity of a women. As indicated earlier this was a
 case for enhancement in sentence. However, long lapse
 of time is a factor which weighed in the mind of the
 Court. Therefore, this is a fit case where the fine
 will have to be substantially enhanced. Under section
 376 of the Penal Code, even prior to the amendment in
 the year 1983, there was no upper limit provided to the
 fine. This is a case where after committing the heinous
 crime of rape, an attempt was made to commit murder by
 throwing the prosecutrix from the terrace above the 4th
 floor of the building and thus the offence under section
 307 has been established. The offence under section 201
 read with section 511 of the Penal Code is also thus
 established. While addressing himself on the question
 of grant of sentence, the learned Judge has noted that
 some of the accused are in Government service and some
 are doing private business. Considering the entire
 evidence on record and the gravity and seriousness of

¶242

 : 51 :

¶243

 crime, a fine of Rs.300/- each for the offence under
 section 376 imposed by the trial Court needs to be
 enhanced to Rs.25,000/- each.

¶244

 53. Hence the following order:

¶245

 i) Criminal Appeal No.37 of 1990 against the order

¶246

 of conviction is dismissed. The order of
 conviction and substantive sentence of
 imprisonment is confirmed.

¶247

 ii) a) Criminal Appeal No.87 of 1990 (for
 enhancement of sentence) is partly allowed.

¶248

 . b) The order of payment of fine passed by the
 trial Court is modified. It is directed that
 for the offence under section 376 of the Penal
 Code instead of fine of Rs.300/- each, fine of
 Rs.25,000/- each shall be payable by the Accused
 No.1 to 6. In default of payment of fine,
 Accused No.1 to 6 will suffer R.I. for a period
 of 13 months. Time of 10 weeks is granted to

¶249

 pay the fine amount.

¶250

 . c) The fine amount, if deposited by the

¶251

 : 52 :

¶252

 Accused, shall be paid to the Prosecutrix

¶253

 Ms.Kalpana Laxman Dhamankar.

¶254

 iii) The Accused persons are directed to surrender

¶255

 immediately.

¶256

 iv) Rest of the impugned judgment and order

¶257

 including the order regarding issuance of

¶258

 show cause notice to P.W.1 is confirmed.

¶259

 v) The Officer in-charge of Mahim Police Station

¶260

 will immediately take action on the basis of

¶261

 the writ of this order.

¶262

 vi) Criminal Appeal No.88 of 1990 (against

¶263

 acquittal) is dismissed.

¶264

 vii) Place the Appeals for direction on 18th December
 2006 before the appropriate Court for reporting
 compliance.

¶265

 viii) Copy of this order be sent to the Commissioner

¶266

 of Police, Mumbai.

¶267

Judge.

Ramesh Parshuram Patil and Ors. v. State of Maharasthra and Anr.

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Ramesh Parshuram Patil and Ors. v. State of Maharasthra and Anr.

Case brief

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