Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
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- SUGAM @ MONTY HARISHANKAR JAISWAL Appellant(s) VERSUS 1
- STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:
MR KB ANANDJIWALA, ADV. for the Appellant(s) in Cr.A No.2124/2008 and in Cr.M.A. No.4066/2009 for Opp No.2 & in Cr.A No.2429/2008 for Respondents No.1, 2, and 6 and in Cr.A. No.2438/2008 for Respondent No.2; MR JM PANCHAL WITH MR KJ PANCHAL, ADV. In Cr.A No.2178/2008 for Appellant & Cr.MA No.4073/2009 for Opp. No.2; MR MITESH AMIN, ADV. In Cr.A No.2180/2008 for Appellant & Cr.MA No.4067/2009 for Opp. No.2; MR SV RAJU, ADV. WITH MS HETVI SANCHETI in Cr.A No.2195/2008 & 2196/2008 for Appellants & in Cr.MA No.4071/2009 & 4069/2009 for Opp. No.2 and in Cr.A No.2429/2008 for Respondents No.3 to 5;
MR PR NANAVATI, ADV. For Applicant in Cr.MA Nos.4073/2009; 4067/2009; 4071/2009; 4069/2009; & 4066/2009 MR HL JANI, LD. APP for the State in all the matters =========================================================== CORAM:
HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 27/12/2012 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE JAYANT PATEL) As per the prosecution case, the complaint (Exh.283) was registered by the deceased-victim, the English Translation of which from Gujarati reads as under:-
My name is (the deceased victim) d/o. Bipinbhai Ambalal Joshi, aged 24 years, occupation service, resident of 10, Indrabaug Society, Behind Panchsheel Bus Stand, Near Ramesh Park, Naranpura, Ahmedabad, mobile number 8616661. Having remained present personally I declare by this complaint, being recorded that I reside along with my parents, brother and sister. I am working at the office known as 'Job Solution' situated at Devpath Office, C.G. Road, Ahmedabad.
Yesterday, at about 10:00 p.m. of 31.12.2003 while I was at my residence, a phone call came from my friend residing at Shahibaug area namely Chandan Pannalal Jaiswal (A-3) who told that his party is ready and I should immediately reach to Ashok Palace (the place of incident). Since my elder sister Vaishali was present at the residence, she dropped me at under-bridge on her two wheeler Kinetic from where I rang up Sajal Jain (A-4) residing at Delhi, came from Delhi and told him that I was standing near under-bridge and that he should pick me up. Because of this, within some time a friend of Sajal named Monty whose original name is Sugam Harishnkar Jaiswal (A-1) residing at Kirannagar Society, Dudheshwar known to me by name, came in his Maruti Zen at under-bridge. I sat in his Maruti Zen car who carried me in his car bearing registration no.GJ-1-HB-1267 from under-bridge to Hotel Ashok Palace. At Ashok Palace friend of mine Sajal Jain (A-4) and Chandan Pannalal Jaiswal (A-3) and one Montu (A-12) who too was friend of Sajal and residing at Delhi and Chandan's brother Mandan Jaiswal (A-2) were present. Chandan told me that his friend would come soon carrying the passes. Sajal Jain and the above named friends sat in room No.106 of Ashok Palace where Sajal ordered for beer. When beer was brought, I was told by Sajal to consume a little beer. I declined to that and Sajal then asked me what is the objection as we are to go to party where so many girls would come who also might have consumed. By saying so and upon persuasion, I consumed one peg of beer. Thereafter, since I declined to consume more beer, Sajal gave me 2.3 slaps and on pressurizing me I was made to take 2-3 more pegs of beer. At this time, Sajal and his friend Montu remained present in the room and others went down. Sajal told me to remove my clothes. I declined and said that I would like to talk to my sister Vaishali. In response to which, Sajal had beaten me by slapping me and Montu went out. Sajal slapped me and forcefully removed the clothes worn by me and had intercoursed with me by force and after intercoursing me, Sajal had telephoned Chandan, hence, Chandan came into the room and in presence of Sajal, Chandan, Karan had intercoursed me by force in their presence. All the three have injured me on my breast, back and shoulders by teeth bites while intercoursing me applying force and thereafter, Mandan brother of Chandan also came in the room who too had intercoursed me by force and that thereafter, what has happened is not known to me. I came at Shahibaug Police Station on gaining consciousness with my sister Vaishali to lodge this complaint.
Yesterday i.e. 31.12.2003 being the last day of the year and as a part of celebration thereof, the above referred Sajal Jain (A-4), Chandan Jaiswal (A-3), Mandan Jaiswal (A-2) Karan @ Montu (A-12) and Sugam Jaiswal (A-1) have in collusion with each other and by extending false pretext of Chandan having arranged the party, called me at 10:00 p.m., at Hotel Ashok Palace which is the hotel of Chandan and by taking me in the room no.106 of Ashok Palace, Sajal Jain by applying force and slapping me made me to drink beer. Sajal Jain, Chandan Jaiswal, Mandan Jaiswal and Karan @ Montu all the four have by beating and slapping me and by applying force have intercoursed me one by one and have since injured me breast, shoulder, backside by biting me and thereafter, have since ran away. I file the present complaint against all of them to investigate. My witnesses will be those who will be available during the police investigation. I am desirous to take the medical treatment. The contents of the complaint as are dictated by me are true and correct.
It appears that thereafter, the aforesaid complaint came to be investigated by the police and pending the investigation, on 07.01.2004, as per the prosecution case, following suicidal note (Exh.571) was written by the deceased, whose English transaction is as under:-
I myself Bijal Joshi and Sajal Jain, Chandan Jaiswal, Mandan Jaiswal, Sugam Jaiswal, Karan Jain, who have raped me are responsible for my suicide. The facts of this incidents happened with me have also affected my family. The mouth of the people are not stopping. Finally, I being a girl will only be defamed. I know that, but Lord will punish this people. Bhavin please forgive me. Father, I am proud of you being my Father and in the next incarnation also I would not become your girl. I have given you too much unhappiness. Forgive me. Vaishali I have also harassed you a lot. Even though you have difficulties of your own, you have helped me. My sister please forgive me. What shall I write about you to you my mother? I have got great parents, but you did not get such a daughter. Forgive me. My Yash, my child, my son, you have to study, isn't it? In the next incarnation I will not take birth as daughter in this house, but surely I will become your mother. Take care of my prince. Vaishali take care of Hemant and Naurin. I loved Sajal a lot, but he raped me in return of my love. Never mind, he acted as desired by almighty. See that Sajal is punished.
This is not my betrayal, but the truth and may be cowardice. I will not be able to confront all these. Forgive me. Your defamed daughter. Sd/-
Bijal Joshi The police after investigation filed charge-sheet against A1 to A4 and A12 and A13 for the offence under sections 376(2)(g) read with section 120B and under sections 323, 324, 342, 328 read with section 120B of IPC; alternatively under sections 323, 328 read with section 34 of IPC; under sections 66(1)(6) and section 85(1)(3) of Bombay Prohibition Act and other offences under the provisions of IPC. Thereafter, the case was committed to the learned Sessions Judge being Sessions Case No.53/05, 55/05 and 150/05. The learned Sessions Judge thereafter, framed the charge against all the accused for the respective offences. However, as the concerned original accused did not plead guilty, the trial was conducted.
It appears that the prosecution in order to prove the guilt of the accused, had examined 51 witnesses, details of whom are mentioned by the learned Sessions Judge at paragraph 9 of the impugned Judgment. Additionally, the evidence of Mr. JI Patel, handwriting expert, vide Exh.452 (original p.w.6) in Sessions case No. 239/04 was considered as the evidence in the present matter with the consent of both the sides. The prosecution also produced documentary evidence of 127 documents, details of which are mentioned by the learned Sessions Judge at paragraph 12(a) of the impugned judgment. However, certain documents were though not produced by the prosecution, but the defence in the cross-examination made the concerned witnesses to produce, in order to prove the defence and such documents are in all 94, the details of which are mentioned by the learned Sessions Judge at paragraph 12(b) of the impugned judgment. The learned Sessions Judge thereafter, recorded the statement of the concerned accused under section 313 wherein the accused denied evidence against them and further statement was separately given in writing by the concerned accused, but in any case in the further statement, the defence was that the accused are innocent and they have not committed any crime.
A2 and A4 examined in all 9 defence witnesses and in the deposition of the said witnesses, certain documentary evidence in support of the defence was also produced.
It appears that thereafter, the learned Sessions Judge in exercise of the power under section 165 of the Indian Evidence Act (hereinafter referred to as the Evidence Act ), directed to bring certain documents and records of another sessions case between State of Gujarat and five accused, viz., A1 to A5 for the offence under section 306 of IPC and others and by virtue of the said order, about four documents including the above referred suicidal note (Exh.571) were brought on record of the present case. It may be recorded that the details of the aforesaid documents are mentioned by the learned Sessions Judge at paragraph 12(c) of the impugned judgment. The learned Sessions Judge in the judgment has also recorded that those documents were formerly proved and exhibited in another sessions case.
The learned Sessions Judge thereafter heard the prosecution as well as the defence and found that the prosecution has been able to prove the case against A1 to A4 and A12. He therefore found the aforesaid five accused guilty for the offence under sections 323, 328, 342, 376(2)(g) read with section 34 of IPC and others. However, so far as the remaining accused, i.e., A5 to A11 are concerned, the learned Sessions Judge found that the prosecution has not been able to prove the case beyond reasonable doubt and therefore, ultimately the learned Sessions Judge convicted the above referred five accused A1 to A4 and A12 and granted benefit of doubt to A5 to A11 and acquitted those accused. It may be recorded that A1 to A4 and A12 were granted benefit of doubt qua charge under section 324 of IPC and benefit of doubt was also given to A2, A3, A4 and A12 for the charge under sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act. The other accused A5 to A8 and A11 were acquitted for charge against them for the offence under section 376(2)(g) read with section 34 of IPC. A9 was granted benefit of doubt for the charged offence under section 212 of IPC and therefore, he was acquitted. A11 was also granted benefit of doubt and he was acquitted qua charge for the offence under section 219, 201 read with section 34 of IPC read with section 376(2)(g) of IPC. The learned Sessions Judge thereafter heard the prosecution and defence for sentence and ultimately imposed sentence which reads as under:
(A) The A-1 Shri Sugam alias Monty S/o. Harishankar Jaiswal, the A-2 Shri Ashok alias Madan S/o. Pannalal Jaiswal, the A-3 Shri Sajal S/o. Sureshkumar Jain and the A-12 Shri Dharmendra alias Karsan alias Montu S/o. Mahendrakumar Jain are hereby held guilty and are hereby convicted for the offences punishable u/s. 323, 328, 342, 376(2)(g) r/w. Sec.34 of the Indian Penal Code.
(B) The A-1 Sugam alias Monty S/o. Harishankar Jaiswal is hereby held guilty and is hereby convicted u/s. 66(1)(b) and Sec.85(1)(3) of the Bombay Prohibition Act, 1949.
A-2, A-3, A-4 and A-12 respectively Ashok alias Madan S/o. Pannalal Jaiswal, Chandan S/o. Pannalal Jaiswal, Sajal S/o. Sureshkumar Jain and Dharmendra alias Karan alias Montu S/o. Mahendrakumar Jain are granted benefit of doubt against the charge u/s.66(1)(b) and 85(1)(3) of the Bombay Prohibition Act, 1949 and are acquitted qua the said charges by granting them benefit of doubt.
(A) The A-1 Shri Sugam alias Monty S/o. Harishankar Jaiswal is hereby held guilty and convicted for the offences u/s.66(1)(b) of the Bombay Prohibition Act to undergo 2 months rigorous imprisonment and Rs.1,000/- fine and for Sec.85(1)(3) of the Bombay Prohibition Act, 1949, to undergo 1 month's rigorous imprisonment and Rs.200/- fine and in case of default, 10 days simple imprisonment on both the counts.
(B) The A-1 Shri Sugam alias Monty S/o. Harishankar Jaiswal and the A-2, A-3, and A-12 respectively Ashok alias Mandan S/o. Pannalal Jaiswal, Chandan S/o. Pannalal Jaiswal, Sajal S/o. Sureshkumar Jain and Dharmendra alias Karsan alias Montu S/o. Mahendrakumar Jain are hereby held guilty and convicted for the offences punishable u/s. 323 r/w. Sec.34 and to undergo 1 year's rigorous imprisonment and pay a fine of Rs.1,000/- each and in default to further undergo 10 days simple imprisonment each, u/s.328 r/w. Sec.34 of the Indian Penal Code, all the above accused are convicted and sentenced to undergo rigorous imprisonment of 10 years and pay a fine of Rs.10,000/- and in default, to further undergo 3 months simple imprisonment, for the charge u/s. 342 r/w. Sec.34 of the Indian Penal Code, the said accused are convicted and sentenced to undergo 1 year's rigorous imprisonment and pay a fine of Rs.1,000/- and in default thereto further undergo 10 days simple imprisonment, for the charge of gang rape u/s.376(2)(g) r/w. Sec.34 of the Indian Penal Code, the five accused are sentenced to undergo life imprisonment and pay a fine of Rs.15,000/- each and in default, to further undergo simple imprisonment for 3 months each.
Under the circumstances, the accused who were convicted have preferred appeal against the judgment and order of conviction being (1) Criminal Appeal No.2124/08 by A1, (2) Criminal Appeal No.2196/08 by A2, (3) Criminal Appeal No.2195/08 by A3, (4) Criminal Appeal no.2178/08 by A4 and (5) Criminal Appeal No.2180/08 by A12. However, the State has preferred appeal against the order of acquittal granted by the learned Sessions Judge by to A5 to A10 being Criminal Appeal No.2429/08.
The learned counsels appearing for both the sides have taken us to the entire evidence on record, oral as well as documentary. We have considered the judgment and the reasons recorded by the learned Sessions Judge. We have heard at length the learned counsel appearing for the respective parties in the appeal, i.e., Mr. K. B. Anandjiwala for A1, Mr. S.V. Raju for A2 and A3, Mr. J.M. Panchal for A4 and Mr. A.D. Shah for A12 and Mr.H.L. Jani, learned APP for State of Gujarat in all the matters. We have also heard the learned APP Mr.H.L. Jani in the appeal preferred by the State against the order of acquittal for the appellant and we have heard Mr. S.V. Raju for the concerned accused therein who are respondents being A5 to A10. It may also be recorded that Vaishali Joshi, one of the witnesses, p.w.3 and sister of the victim has preferred Cr. Misc. Applications No.4067/09, 4071/09, 4069/09 and 4066/09 in the appeals preferred by the original accused, who have been convicted, to be joined as party and on her behalf, Mr. P.R. Nanavati, initially had declared before the Court that the applicant leaves the matter to the Court for appropriate decision. Thereafter, later on he declared that he has no further instruction in the matter. Under the circumstances, as the main criminal appeals against convictions are heard, the applications are also being simultaneously considered on the premise of having left the matter to the Court.
Before we proceed to consider the contention of the learned counsel appearing for both the sides, we find it proper to consider the evidence, which can be broadly classified into following categories The medical evidence showing the injury caused and whether any gang rape has been committed upon the victim or not.
The corroborative evidence resulting into the circumstance leading to the conclusion of commission of gang rape upon the deceased.
The evidence including defence witnesses show the involvement or otherwise of the persons in commission of crime, i.e., gang rape.
The evidence showing the circumstances after commission of the crime and more particularly after registration of the complaint with the police.
11. After the consideration of the evidence under the broad heads as referred to hereinabove, the contention can also be broadly classified as under:
1.Whether provisions of section 32 of the Indian Evidence Act can be applied and consequently, the complaint so made by the victim during her lifetime could be treated as a dying declaration (DD) or not an if yes, whether thereafter any declaration has been made by the victim which can be termed as DD?
2.Whether the alleged DD is inspiring confidence or not?
3.Whether there is any corroboration to the statement made in DD is a must or not?
4.Whether the role played by the concerned accused in commission of crime would have effect and if yes, to what extent in a case of gang rape under section 376(2)(g)?
5.Whether the conviction of the accused deserves to be maintained, if yes, whether sentence imposed would be said as proper or does it call for any interference and if yes, to what extent?
6.Whether the acquittal granted by the learned Sessions Judge deserves to be interfered and if yes, to what extent?
12. Dr.
Saumil Merchant, p.w.2 (Exh.60) is the Doctor who undertook the post mortem of the deceased on 07.01.2004 with the other panel Doctors. He is MD in Forensic Medicine and other panel Doctors were Dr. Rohit C. Zariwal, Dr. Tapan Mehta and Dr. S.Kotharia, MD in Forensic Medicine. As per the said Doctors, when the victim-deceased was examined, following position and injuries were found -
Eyes were closed. Mouth was closed, tongue was within the oral cavity. Dribbling marks of saliva present on the right side of the mouth. Bluish discoloration of finger nails present. Public hair black in colour and about 1.2 cms in length. External genital showed swelling of both the lebial folds. The orifice of vagina and uterus anterium were swollen and oedomatous. Hymen showed tear of 8 O Clock and 11 O Clock with surrounding oedema. The vaginal canal in the anterior fornix showed contusion and was swollen. The posterior vaginal wall was contused.
The external injuries that we have found on the person of the deceased are mentioned in column no.17 are as follows:
Green coloured contusion present on the lateral aspect of left breast in the upper quadrant. Size 4 cms x 3 cms, 4 cms above and 2 cms lateral to the nipple.
Green coloured contusion present on the lateral aspect of left breast in the lower quadrant, 4 cms lateral and 2 cms below to the left nipple. Size 2 cms x 2 cms horizontal.
Green coloured contusion present in the medial aspect of the left breast in the lower medial quadrant of the breast, 3 cms below and 1 cm right medial to nipple. Size 2 cms x 2 cms.
Green coloured contusion present on the lateral aspect of the right breast in the upper lateral quadrant, 3 cms above and 1 cm lateral to the nipple. Size 2.5 cms x 2.2 cms.
Green coloured contusion present on the lateral aspect of right breast in the upper lateral quadrant. It is 3 cms away and above external injury no.4. Size 2 cms x 1.5 cms.
Green coloured contusion present on the medial aspect of the right breast in the lower medial quadrant. It is 4 cms below and 2 cms medial to the nipple. Size 1 cm x 1 cm.
Abraded greenish contusion present at the tip of left deltoid region with curvature figure shape with convexity facing downward. Size 5 cms x 0.5 cms. The area showed abraded margin with scab. The intervening tissues above the convexity were contused and swollen.
Green coloured contusion present on the front of left thigh which is 13 cms below the anterior superior iliac spine which is over turned shaped convexity facing upward which is 7 cms x 0.3 cms size, 2 cms below this there was U shaped abraded green coloured contusion of 6.5 x 0.2 cms size. The area showed abraded margin with scab, the intervening area was contused and swollen, size 7 cms x 2 cms, convexity facing downward.
cms below injury no.8, there is a similar injury with similar characters present of 6.8 cms x 0.25 cms and 5.5 cms x 2.5 cms with intervening greenish contusion of 6.5 cms x 2 cms.
Ligature mark: A ligature mark present around the neck which was just above the thyroid cartilage and on the left side it was going obliquely, upward and laterally which was 4 cms below the left angle of mandible and went upward and backward 2 cms below the left mastoid process and then faded into the hairs. On right side, it continued with ligature mark described on the left side. It went obliquely, upward and laterally which was 5 cms below the right angle of mandible and 1 cm below the right mastoid process and went upward and backward and faded into the hair. The total size of ligature mark was 20 cms x 1.5 cms (width) with red abraded margin. The base of ligature mark was slightly depressed with shiny brownish red in colour, hard, parchment like.
As per the opinion of the panel Doctors, the cause of death was ex facie as a result of hanging and he has opined that the injury in column no.17 was suicidal in nature. As per the said witness, swelling of both labial folds, i.e., labia majora and labia minora were not fresh. He has further deposed that injuries mentioned in column no.15 as per his opinion could be possible with the vigorous sexual intercourse. He has further stated that the injuries in column no.17 at Sr.Nos. 1 to 9 which are green coloured injuries, could be 5-7 days old. As per his opinion, injury no.7, described in column no.17 is possible by sucking with the lips and also with the teeth. In the cross examination of the said witness, the defence has not been able to bring about any material contradiction on the aspects of injuries found upon the body of the deceased-victim when the postmortem was performed and also on the aspects of the opinion given by Doctor for the injury caused when he was confronted on the aspects of injury on vagina could be said as fresh, but he has denied. The said Doctor has not agreed with the suggestion that if it is penile penetration, hymen tear would be only in a particular manner. He has explained the manner and method adopted by him to see the vaginal injuries by dissection and thereafter two labia folds, the vaginal orifices, vaginal canal and then uterus were examined. He has stated that the entry of uterus was swollen and edematous.
The aforesaid injuries were found on the body of the deceased at the time of postmortem on 07.01.2004 after the deceased committed suicide on 07.01.2004. The another evidence is of Dr. Krupaben, p.w.39, Exh. 266, who examined the victim when she was alive on 02.01.2004 just after two days from the date of the incident of rape. She is a practicing gynecologist. As per the said Doctor, she attended the victim on humanitarian consideration since the victim complained unbearable pain on the lower parts and private parts of the body. When she examined the victim, following injuries were apparent -
Nail injuries on the lower portion of the eyes.
Bite injuries on the lower lips and it was swollen.
There were abrasions on both the hands and burn marks of cigarette on the backside of her shoulders. There were belt marks with abrasion on her back.
She did not examine the internal injuries but the other injuries as were described by the victim to the said Doctor were as under:
Bruises of bite marks on the breast.
The belt mark abrasions on the hips.
Nail marks on the internal part of thighs.
There was burning sensation on the lower part and was paining very much.
The said Doctor had supported the victim psychologically and had prescribed analgesic and antibiotic medicines to the victim. As per the said Doctor when she examined, the victim was in depression and there was body-ache and headache and there was also slight fever.
In the cross-examination of the said witness, she has further explained about the injuries that they were shown by the victim to her by showing the portion inside the cloth,i.e., kurta. She also stated that the burn marks of cigarette were appearing to be fresh as they were black with the red charring. The victim had stated to her that as no proper treatment was given in civil hospital, she had to come to her and she had given necessary treatment.
The defence in the cross-examination has not been able to prove about any material contradiction which may lead the Court to disbelieve the witness for not examining the victim and consequently the injuries as described by the said witness Dr.Krupaben, p.w.39, when she examined the victim could be said as proved. The aforesaid was the position of the body of the victim and victim herself on 02.01.2004.
It is true that Dr. YM Jadav, original accused no.11, is stated to have examined the victim and had issued injury certificate, Exh.285, for the injury upon the victim. As per the said certificate, there was complaint of pain over breast and private part burn. As per him, there were following injuries -
Teeth bite marks reddish in colour over left breast, two in number and on right breast, one in number.
Reddish coloured bite marks over left cheek on lower.
Nail scratch over back of neck.
0.5 X 0.5 cm reddish bruise over left thigh medially.
It is true that all the injuries as referred to by Dr. Krupaben, p.w.39, when she examined the victim on 02.01.2004, Dr. Saumil Merchant, p.w.2 (Exh.60), when he performed postmortem on 07.01.2004 are not stated by Dr.Jadav in his injury certificate. But, the evidence has come on record to show that Dr.Jadav did not attend the victim properly and complaint was filed against Dr.Jadav. The prosecution did find evidence against Dr.Jadav and the charge-sheet was filed and he was arrayed as accused no.11. It is also true that thereafter Dr.Jadav is acquitted by the learned Sessions Judge since the prosecution could not prove the case but the fact remains that Dr. Jadav has not entered the witness box and has not explained before the Court about the injuries found on the body of the victim either as stated by Dr.Krupaben, p.w.39 or Dr.Saumil Merchant, p.w.2, more particularly when both the witnesses have been cross-examined at length and the defence in the cross examination have not been able to show any material contradiction on the aspects of injury found on the body of the deceased on 02.01.2004 as well as on 07.01.2004.
Further, there is no contradiction in the injury stated in both the Doctors, Krupaben, p.w.39 and Dr. Saumil Merchant, p.w.2, if the injury stated in the injury certificate issued by Dr.Jadav is considered. Therefore, we find that the injury as were found upon the body of the victim if considered as on 02.01.2004 with the detailed examination at the time when the postmortem was undertaken on 07.01.2004, shows that the prosecution has been able to prove by medical evidence that the sexual intercourses have taken place that too in a violent and aggressive manner resulting into various serious injuries upon the private parts and the body of the deceased. The fact that the injuries are fond of sexual assault on the various parts of vagina and on the mouth of the uterus and upon the breast, lips, neck, shoulder and hip and backside of the victim are sufficient to conclude that the rape has been caused in a violent manner with full aggression of sexual assault. In our view, the medical evidence would rule out the sexual intercourse with consent of the victim. Had there been any consent of the victim for sexual intercourse, such injuries would never be found on the body and private parts of the victim. Therefore, it appears to us that the prosecution has been able to prove by medical evidence that sexual intercourses in a violent manner with full aggression of sexual assault have been committed and caused upon the victim who have ultimately died on 07.01.2004.
The other vital circumstances for showing the commission of gang rape upon the victim can be described as stated hereinafter.
As per Vaishali, p.w.3, Exh.78, she found the victim on the rear side of the seat of the car in as good as naked condition inasmuch as there was no cloth on the lower part of the body and the t-shirt was raised upto neck. As per the panchnama prepared in presence of panchas, (1) The identification of room nos.106 and 205 was made (2) The material was found of astray with the half burnt left out cigarettes (3) Long hairs were found from the bathroom and (4) metallic rattle (ghughri) was found. The cloths recovered of the bed-sheet and pillow cover with spots, the underwear found hanging on the iron net, the spots found on the rear side of the car of spermatozoa, the FSL report showing stain marks of spermatozoa on the cloths, DNA report of the spots found of spermatozoa recovered of the car and the panchnama showing the possession of the two rooms of Hotel Ashoka, if considered with the various injuries found upon the body of the victim, for sexual intercourse in a violent manner with aggression are sufficient to record the conclusion that the rape has been committed upon the victim.
Before we further proceed to examine the oral evidence of various persons for showing involvement of the person for commission of crime, it would be just and proper to consider the aspects as to whether provisions of section 32 of the Evidence Act and consequently, as to whether complaint so made by the victim during her life time could be treated as dying declaration or not and if yes, whether thereafter, any declaration made by the victim could be termed as DD or not.
It was submitted by the learned counsel appearing for all the accused that the death was not in question in the trial, but the office under section 376(2)(g) of gang rape or rape was in question. It was also submitted that section 32 of the Evidence Act provides that any statement made by a person, written or verbal, can be considered as DD only if the death is in question. It was also submitted that even if the circumstances after the rape was committed are considered, it cannot be said that any circumstances of the transaction has resulted in to the death and therefore, the second part of section 32(1) of the Evidence Act is also not satisfied, more particularly because it is not that every girl who is subjected to rape or gang rape would commit suicide. It was submitted that therefore, the learned Sessions Judge has committed great error in considering the aforesaid important aspects of law.
Whereas, on behalf of the State, it was submitted by the learned APP that even if it is considered that the cause of death was not directly in question, but the circumstances of the transaction resulting into the death do exist in the present case and therefore, when such evidence has come on record that the victim after six days has committed suicide on account of agony suffered by her including physical pain, it could be said that section 32 of the Evidence Act will be applicable and the learned Sessions Judge has rightly considered the said aspects.
Section 32(1) of the Evidence Act, relevant for the purpose of the present case for ready reference reads as under:
When it relates to cause of death
- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
26. The Apex Court had an occasion to consider the scope and ambit of section 32 of the Evidence Act in various cases but with a view of not to burden the judgment by referring to various case laws, we may refer to the decision directly having bearing, which would be relevant in the present case. In the case of Bairon Singh vs. State of MP reported at JT 2009(7) SC 495, after reproduction of section 32(1) of the Evidence Act, it was observed by the Apex Court at paras 4 and 5 as under:
4. The legal position relating to the admissibility of evidence under Section 32(1) has come up for consideration before this court time and again. It is not necessary to multiply the authorities in this regard as reference to a three Judge Bench decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra,1 will suffice. Regarding the application of rule under Section 32(1) Evidence Act, Fazal Ali,J. culled out the legal position as follows:
(1984) 4 SCC 116 "(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect,as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story,the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."
A.
Varadarajan, J. on the other hand referred to the legal position stated by Woodroffe and Amir Ali in their Law of Evidence,(fourteenth edition) and Ratanlal Dhirajlal in their Law of Evidence (1982 Reprint). This is how A. Varadarajan, J. dealt with the admissibility of evidence under Section 32(1):
"....The position of law relating to the admissibility of evidence under Section 32(1) is well settled. It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, Fourteenth Edn. and Ratanlal and Dhirajlal in their Law of Evidence (1982 Reprint). Those propositions are based mostly on decisions of courts for which reference has been given at the end.
They are these: Woodroffe and Amir Ali's Law of Evidence, Fourteenth Edn.:
"Page 937: Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source.
Page 941: What is relevant and admissible under clause (1) of this section (Section 32) is the statement actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death.
Page 945-946: A statement must be as to the cause of the declarant's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, such independent transactions being excluded as not falling within the principle of necessity on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death.(AIR 1964 SC 900.) Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person's death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause. (ILR 1901 25 Bom 45.) Page 947: Circumstances of the transaction resulting in his death: This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death, or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words `resulted in his death' do not mean `caused his death'. The expression `any of the circumstances of the transaction which resulted in his death' is wider in scope than the expression `the cause of his death'. The declarant need not actually have been apprehending death. (AIR 1964 MP 30.) Page 947: The expression `circumstances of the transaction' occurring in Section 32, clause (1) has been a source of perplexity to courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of Their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder.... But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.
Page 948: `Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in `circumstantial evidence' which includes the evidence of all relevant factors. It is on the other hand narrower than `res gestae'. Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose.
Page 948: The Supreme Court in the case of Shiv Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has made similar observations that the circumstances must have some proximate relation to the actual occurrence, and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible.
Page 949: The clause does not permit the reception in evidence of all such statements of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. [(1939) 66 IA 66.] `Circumstances of the transaction which resulted in his death' means only such facts or series of facts which have a direct or organic relation to death. Hence statement made by the deceased long before the incident of murder is not admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and Dhirajlal (1982 Reprint) "Page 94: Circumstances of the transaction: General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible. [(1939) 66 IA 66] (18 Part 234.) Page 95: Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant's death comes into question. It is not necessary that the statement must be made after the transaction has taken place or that the person making it must be near death or that the `circumstance' can only include the acts done when and where the death was caused....Dying declarations are admissible under this clause."
The above observations show that the circumstances must have some proximate relation to the actual occurrence and must be of a transaction resulting into the death of the declarant. It is not necessary that the statement must be made after the transaction has taken place or that the person making it must be near death or that the circumstances can only include the acts done when and where the death was caused.
27. Again the Apex Court in the case of Amar Singh Vs. State of Rajasthan reported at 2010(9) SCC 64 had an occasion to consider the scope and ambit of section 32(1) of the Evidence Act and it was observed by the Apex Court at paragraphs 18, 19, 20 and 21 as under:
18. Clause (1) of Section 32 of the Indian Evidence Act provides that statements made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, are themselves relevant facts. In the present case, the cause of death of the deceased was a question to be decided and the statements made by the deceased before PW-4 and PW-5 that the appellant used to taunt the deceased in connection with demand of a Scooter or Rs.25,000/- within a couple of months before the death of the deceased are statements as to "the circumstances of the transaction which resulted in her death" within the meaning of Section 32(1) of the Indian Evidence Act.
19. In Pakala Narayana Swami v. Emperor [AIR 1939 PC 47] Lord Atkin held that circumstances of the transaction which resulted in the death of the declarant will be admissible if such circumstances have some proximate relation to the actual occurrence. The test laid down by Lord Atkin has been quoted in the judgment of Fazal Ali, J. in Sharad Birdhichand Sarda v. State of Maharashtra (supra) and His Lordship has held that Section 32 of the Indian Evidence Act is an exception to the rule of hearsay evidence and in view of the peculiar conditions in the Indian Society has widen the sphere to avoid injustice. His Lordship has held that where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statements would clearly fall within the four corners of Section 32 and, therefore, admissible and the distance of time alone in such cases would not make the statements irrelevant.
20. The difference in the English Law and the Indian Law has been reiterated in Rattan Singh v. State of H. P. (supra) and it has been held therein that even if the deceased was nowhere near expectation of death, still her statement would become admissible under Section 32 (1) of the Indian Evidence Act, though not as a dying declaration as such, provided it satisfies one of the two conditions set forth in this sub-section. The argument of Mr. Sharma, therefore, that the evidence of PW-4 and PW-5 regarding the statements made by the deceased before them are hearsay and are not admissible is misconceived.
21. The prosecution, therefore, has been able to show that soon before her death the deceased has been subjected by the appellant to taunt in connection with demand for dowry. This Court has held in Pawan Kumar and Others v. State of Haryana (supra) that a girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride and such acts of taunting by the husband would constitute cruelty both within the meaning of Section 498A and Section 304B IPC.
The aforesaid observations of the Apex Court shows that where the main evidence consist of the statement and the letters written by the deceased which are directly connected with or related to her death, and which reveal the tell-tale story, the said statement would clearly fall within the corners of section 32 of the Evidence Act and therefore, admissible and the distance of time alone in such cases would not make the statement irrelevant. The Apex Court did record that if a girl dreams of great days ahead with the hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride.
The aforesaid two decisions of the Apex Court in our view explain the scope and ambit of section 32(1) of the Evidence Act and the settled legal position shows that the circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in to the death of the declarant.
In the present case, even if it is considered that at the time when the above complaint was registered by the victim with Shahibaug police station for the alleged offence under section 376(2) etc., she might not have made up to commit suicide but the further circumstances have come on record and the same can be described as under:
The victim was asked to change the cloths by police constable Ashaben. She was meted with the treatment by saying that the victim herself must have gone for the alleged incident so as to involve the accused.
When she was to be attended by the Doctors of civil hospital, the main person, Dr.Jadav (accused no.11) did not attend her properly. No proper treatment was provided to her.
She had to take help of Dr.Krupaben Trivedi, p.w.39 for the grievous pain in her private parts and body when other two or three Doctors declined to attend her since it was a case of rape. When Dr. Krupaben, p.w.39 examined her, she had found the victim in totally depressed and frustrated condition.
The offer made by the uncle of Chandan, A3, for settling the matter by offering 10 lakhs for five persons, total 50 lakhs, that too in the compound of the police station.
Threats given to the victim and her sister on phone from Ajmer and from Delhi.
Non-arrest of all the accused.
The multiple injuries sustained by the victim on her body and more particularly private parts for violent sexual assault and gang rape.
The social conditions prevailing of a girl of an economically middle class in the society and the mental trauma on account of violent sexual assault and gang rape.
The attempt made by the victim to commit suicide prior to 07.01.2004 but it failed.
In our considered view, the aforesaid circumstances are sufficient to find that there was proximate relations for the transaction resulting into the death. It is hardly required to be stated that whether there is proximate relation to the transaction resulting into the death or not would depend upon the facts of each case and as observed by the Apex Court, there cannot be any straitjacket formula. While finding out as to whether the circumstances are proximate to the transaction resulting into the death or not, the social structure prevailing in the society will also have bearing while appreciating such circumstances in context to the provisions of section 32(1) of the Evidence Act. When a young girl is meted out with gang rape with aggressive sexual assault by those who were known to her earlier, such victim girl is bound to have a great mental trauma in her mind. She would carry a feeling of psychological exploitation with physical exploitation in a barbarous manner totally taking away her dignity as female in the society. She would also undergo a great mental trauma for sufferance of her family members and more particularly parents and close relatives. Therefore, it appears to us that if the social conditions prevailing in the society of the victim upon whom the gang rape is committed with full aggression of sexual assault in a violent manner and thereafter, if it has come on record that she has committed suicide, it can be said that the prosecution has been able to show the circumstances resulting into the death of the victim. Therefore, in our view, the second part of section 32(1) of the Evidence Act for the transaction which resulted into the death are satisfied, and hence, section 32(1) of the Evidence Act can be applied to the facts of the present case.
The attempt was made by the learned counsel for the accused to contend that in a case under section 306 of IPC, against the very accused, it has resulted into acquittal and therefore, it can be said that there was no incitement by the accused for compelling the victim to commit suicide and under these circumstances, it cannot be said that the circumstances of committing suicide by the victim have any proximate cause and hence, section 32(1) of the Evidence Act will have no applicability. The contention may prima facie appear to be attractive, but upon close scrutiny, it appears that for acquittal of any accused there may be various reasons in law with the Court. In any case, the appeal is preferred by the State against the said decision and the matter is pending. Hence, we may refrain from expressing any view on the said aspects, but the distinction which deserves to be recorded is that it is not a matter where in the common trial, the acquittal is earned by the accused therein for the offence under section 306 of IPC. The charge-sheet and the trial in the present case and the another case for the offence under section 306 of IPC are different. The evidence to be recorded in the present case is the evidence as produced in the present case. Therefore, merely because the acquittal has been granted, it cannot be said that such circumstances cannot be independently considered in the present case for applicability of section 32(1)of the Evidence Act. As observed earlier, the circumstances so narrated by us hereinabove for direct proximity for the transaction resulting into the death of the victim with the evidence are considered and appreciated. Hence, the said contention being devoid of merit, deserves to be rejected but of course with the observation that the rights and contention of the prosecution as well as the accused therein in a separate case for the offence under section 306 of the IPC, etc. would remain open to be decided in accordance with law.
Once it is held that that section 32 of the Evidence Act can be applied to the declaration made by the victim during her life time, if it is found that such declaration was voluntary and inspiring confidence, the same can be termed as DD. Hence, we would now be required to examine as to which declaration were made by the victim when she was alive and whether they inspire confidence or not.
The principles of consideration of the declaration made by the victim during her lifetime with the applicability of Section 32 of the Evidence Act thereby popularly known as dying declaration is by now well settled. A declaration should be of such a nature, which inspires full confidence in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either torturing or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The reference may be made to the decision of the Apex Court in the case of Muthukitu v. State, reported at (2005) 9 SCC, 113 and more particularly the observations made at paragraph 15 of the said judgement. It is in light of the aforesaid well settled position of law, we have now further to examine the aspect about the declaration made by the victim during her lifetime before the police by way of a complaint and others, if any.
The first declaration made by the victim is the complaint at exhibit 283 for the narration of the incident of gang rape. We need not repeat the contents of the complaint since the same is already reproduced by us at the first paragraph of the present judgment, but we would only be required to examine as to whether such complaint at Exh.283 could be said as duly proved for showing that the declaration was so made in the complaint by the victim and the same was voluntary in nature and the victim was in full conscious condition at the time when the complaint was filed by the victim. The evidence of Vaishali, sister of the victim, p.w.3, Exh.78, who was present at the time when the complaint was registered, fully supports the case of the prosecution. As per her testimony, after the police officer Shri Taral, p.w.43 came, the victim was offered water and tea and she was made to sit peacefully. Thereafter, 4-5 policemen had come where Sharma Saheb was also there and in presence of the police officer, the complaint was taken. She has in her testimony stated that after they were asked to go to Shahibaug police station and until they reached to Shahibaug police station, the victim had settled herself and the victim had explained to her how the incident had happened and who could be said as responsible for the same. The defence in the cross-examination has not been to bring about material contradiction on the aspects that victim had not regained full consciousness before the registration of the complaint nor the suggestion made by the defence to the said witness that the complaint was in fact given by Vaishali, p.w.3, and not by the victim, is specifically denied by the said witness. The complaint is registered by Babubhai Itaji Taral, Police Officer, p.w.43 whose testimony is recorded at Exh.282. As per the said witness, the victim herself had given her name with the address and she herself had stated which was so recorded by him as complaint. In the cross-examination, he has specifically stated that he could not take up the complaint prior to 7.45 since she was in the effect of intoxication. However after she was recovered fully, the complaint was taken. He has specifically denied that the girl (victim) was not in a position to speak. The said witness has stated that about 1 to 1½ was spent for registration of the complaint and he has admitted that at that time, Vaishaliben, p.w.3 was present. When he was put the question as to whether Vaishaliben, p.w.3 was stating the facts when the victim had stopped while giving complaint, the witness has specifically denied the same and he has stated that Vaishali, p.w.3 was kept at a distance of 5 ft. and on the contrary, the victim was inquiring where her sister was. When he was to put the question in the cross-examination by the defence that whether the victim was unable to speak or her voice could not be heard, the witness has specifically denied and has stated that after she came out from the effect of intoxication, the complaint is given and whatever she had spoken was clearly understandable and she was giving details slowly. The said witness was confronted on the aspects of signature. He specifically stated in the cross-examination that after the work of taking complaint was over, the complaint was read over and thereafter the signature was taken. In the cross-examination, further the said witness has stated that when he had told Vaishali, p.w.3 to give the complaint, she had denied and she had stated that the complaint shall be given by the victim only.
The aforesaid evidence in our view is sufficient to show that the declaration made in the complaint was made by the victim in conscious condition and the declaration made was given and signed by victim herself and not by Vaishali, her sister, p.w.3. As sought to be canvassed by the learned counsel for the accused.
A fag attempt was made by the learned counsel for the accused to contend that the police officer, Babubhai, p.w.43 is duty bound to support the proceeding of registration of complaint because, if he says anything otherwise, his service career will be in difficulty and further the police officer would be tempted to see that the conviction is made by the court and therefore, he is bound to state accordingly even though it is not genuine or correct. Therefore, the Court may not fully rely upon the statement of p.w.43, Exh.282 for considering the consciousness of the victim and voluntariness of the statement made in the complaint.
In our view, the said contention deserves to be rejected on the face of it for two reasons; one is that it is for the defence to prove about the material contradiction, if any, to the statement made in the examination-in-chief by any witness. Merely because one is a police officer who has registered the complaint and is supporting the case of the prosecution, it cannot be said that he is interested witness on the ground as sought to be canvassed. If the offence is committed, it is the duty of any police office, in capacity as the witness, to state the truth before the court as per the settled norms and the procedure provided in the law. His statement may be testified in the cross-examination by the defence, but the defence has not been able to bring about any material contradiction to the testimony of such officer. Further, it is not a matter where the witness is the only police officer but there is corroboration to the said aspects from the testimony of Vaishali, p.w.3, who is the sister of the victim. The defence has not been able to bring about any material showing that PSI Taral, p.w.43 had any animosity with the accused or otherwise. Therefore, we find that the contention is not only without substance but is misconceived in law.
In view of the aforesaid, we find that the declaration made in the complaint, Exh.283, could be termed as voluntarily made by the victim in conscious condition when she was alive and the say of the defence that the complaint was given by Vaishali, p.w.3, cannot be accepted on the face of the above referred evidence of p.w.43 and Vaishali, p.w.3.
The attempt was also made to contend that p.w.3 in the subsequent application made to the police officer had stated that the signature of Bijal was not taken on the complaint at the relevant point of time since she was unable to sign in our view is also frustrated by the aforesaid clear evidence of PSI Taral, p.w.43, that the victim had signed immediately, that tool in his presence.
The aforesaid would lead us to examine further as to whether any other declaration has been made by the victim after the registration of the complaint and if yes, which are they and the evidentiary value thereof.
Through testimony of Vaishali, p.w.3, an attempt was made by the defence to contend that the victim during her lifetime after registration of the complaint had made an application on 03.01.2004 to the Police Commissioner wherein the victim had stated that A2 and A3 were not involved in the rape and therefore, such could be termed as an oral declaration made by the victim during her lifetime. It was submitted that p.w.3, Vaishali had admitted the factum of making the application by the victim and the contents of the same for non-involvement of A2 and A3 and therefore, it was submitted that the same may also be termed as oral DD made by the victim during her lifetime.
As such, the application dated 03.01.2004 has not come on record nor the defence has moved the court for production of such evidence. Therefore, the contents of the said application could be said as unknown to the Court except the statement made by Vaishali, p.w.3 in her cross-examination. The other relevant aspect is that Vaishali, p.w.3 did admit that the victim had told her that such application is made but she did not explain about the making of application as to why it was made or under what circumstances it was made. As such, in absence of the application and full contents of the application, it is not possible for the court to attach credibility to the statement made by Vaishali, p.w.3 in the cross-examination. Fruther, unless the evidence comes on record to show that the same was in full consciousness and was voluntary in nature, it cannot be termed as any declaration inspiring confidence. At the same time, the circumstances of the incident as stated in the complaint by way of the first declaration made and found to be voluntary in nature cannot be ignored inasmuch as, as stated by the victim in the complaint, she was compelled to consume liquor and thereafter she was unconscious. When she was found in the car of A1 by Vaishali, p.w.3, at that time also she was as good as unconscious. Under the circumstances, it is not possible for us to accept that the victim had made declaration in the so-called application dated 03.01.2004 that A2 and A3 were not involved in the rape more particularly when subsequently, the victim is stated to have involved involvement of A2 and A43 in the suicidal note, subject to of course the contention of the accused that suicidal note cannot be taken into consideration in the present case and such contention shall be dealt with by us at the later stage appropriately.
It was also attempted to contend that in the medical history given before the Doctor Jadav, so recorded in the injury certificate at Exh.281, the victim had stated that A4 Sajal, A3 Chandan, A12 Dharmendra and A1 Monty @ Sugam had gone to the farm house from Hotel Ashok Palace but the victim had not gone and she further stated that when she was at Ashok Palace, A4 by beating her compelled to drink liquor and beer which was consumed by them and they physically overpowered her and she lost consciousness and thereafter she was not aware what happened. It was attempted to contend that in the said statement made before Doctor Jadav, the presence of A2 Mandan is not stated. Therefore, the history given before the Doctor Jadav as recorded in the injury certificate at Exh.281 should also be treated as declaration made by the victim during her lifetime.
It deserves to be recorded that the history is given before the Doctor Jadav against whom the victim had the complaint that he did not discharge his duties properly and he was arrayed as accused by the prosecution as A11. Further, in the second part, as stated in the complaint she has stated that she had lost consciousness and she has no knowledge about the subsequent incident. Dr.Jadav has not entered the witness box for proving the factum of declaration made by way of medical history given by the victim to him. Under these circumstances, when Dr.Jadav himself was accused no.11 in the case and victim had a complaint that he did not attend her properly and discharged the duty properly, unless the proper evidence comes before the Court for showing the history so given by the victim and accordingly recorded by Dr. Jadav, it cannot be taken as the declaration made by the victim as recorded in the medical history. Hence, we find that if the test for voluntariness of the declaration is to be considered, in absence of the relevant evidence of the concerned witnesses, viz., of the application itself, dated 03.01.2004 and the evidence of Dr. Jadav, who is said to have recorded the history coupled with the aspects that Dr.Jadav was also arrayed as accused and the victim had the complaint that the said doctor did not discharge the duties properly, it is not possible for us to treat both the aforesaid aspects as oral DD made on 01.01.2004 before Doctor Jadav or on 03.01.2004 in the application made to the Police Commissioner by the victim. In any case, even if they are considered as subsequent declaration made in the complaint by the victim, the question of corroboration may be required to be considered to the first declaration made in the complaint which is found to be voluntary and made by the victim in fully conscious condition. But we are not in a position to accept the contention that the evidentiary value of the declaration made in the complaint would be lost or frustrated on account of the aforesaid two so called declaration made as sought to be canvassed. In any case, there is consistency for the presence of A1, A3, A4 and A12 in the medical history and there is no inconsistence for presence of A1, A4 and A12 in the application dated 03.01.2004. Again it may be recorded that the so called suicide note subject to the contention of the accused that it cannot be considered in the evidence which shall be dealt with later on at the appropriate stage, the involvement and presence of the five accused, viz., A1, A2, A3, A4 and A12 which is stated by the victim.
The aforesaid now leads us to examine the evidences on record, including the defence witnesses showing the involvement of the persons in commission of crime i.e. gang rape or otherwise.
The first evidence, which deserves to be considered, is the declaration made by the victim during her lifetime before the police in the complaint (Exh.283). As observed by us earlier, the complaint could be termed as dying declaration falling under Section 32 of the Evidence Act and further as observed and found by us, the complaint was made by the victim herself and not by her sister, Vaishali (PW-3). Under these circumstances, the declaration made by the victim by way of complaint before the police would assume great evidentiary value. The declaration so made in the complaint (Exh.283) by the victim shows that, as per the victim, A-3 had invited the victim for a party and had asked her to reach Ashoka Palace. Her sister dropped her at under-bridge on two-wheeler and thereafter she was picked up by A-1 in his Maruti Zen Car bearing Registration No.GJ-1-HB-1267 from under-bridge and accordingly the victim and A-1 reached Ashoka Palace. At hotel Ashoka Palace, A-4, A-3, A-12 and A-2 were present. A-3 told the victim that his friend would be coming soon with passes. Thereafter, A-4 and all his other friends namely; A-2, A-3, A-12 sat in the Room No.106 of Ashoka Palace, where A-4 ordered beer. As per the victim, when beer was brought, she was told by A-4 to consume a little beer, which was declined by the victim and thereafter, A-4 again insisted and upon his persuasion, the victim had consumed one peg of beer. As per the victim, since she declined to consume more beer, A-4 gave two to three slaps and pressurized her to take 2 to3 more pegs of beer. When the aforesaid incident had happened, A-4 and A-12 were present in the room and others went out. A-4 told the victim to remove her clothes, which was declined by her and she insisted to talk to her sister Vaishali (PW-3). In response thereto, A-4 had beaten her by slapping and at that time, A-12 went out. Thereafter, as per the victim, A-4 slapped her and forcibly removed her clothes and had intercourse with her by force. As per the victim, after intercourse with her, A-4 telephoned A-3, who came into the room and in presence of A-4, A-3 and A-12 had intercourse with her by force. As per the victim, three injuries were caused on her Brest, her back and shoulder by teeth bite while having intercourse with her by applying force. As per the victim, A-2 thereafter came into the room and he also had intercourse with her by force. As per the victim, thereafter what happened was not known to her as she was not in conscious condition and after gaining consciousness, she reached Shahibaug Police Station with her sister to lodge the complaint. The aforesaid declaration before the police in presence of the police officer is duly proved by the prosecution as per the evidence of PSI, Mr.Taral (PW-43) (Exh.282).
The complaint is also proved and taken on record at Exh.283. The aforesaid declaration made in the complaint clearly shows the involvement of A-2, A-3, A-4 and A-12 in the commission of crime i.e., gang rape.
A-1 has not been shown as the accused in the aforesaid declaration, but his role is to be considered in light of the other evidence. As per Vaishali (PW-3), the victim was found in practically naked position, inasmuch as there were no clothes at the down and the T-shirt was raised up to the neck and she was on the back seat of the car of A-1. As per Vaishali (PW3), she also found A-1 mending his pant while coming out from the car. The defence in the cross-examination has not been able to bring about the material contradiction on the aforesaid aspect, but the suggestion was made that the aforesaid aspect was not declared by Vaishali (PW-3) when her statement was recorded at the first instance. The aforesaid aspect in the statement of Vaishali (PW-3) made at the first brush shakes the credibility of the statement made by witness (PW-3) and, therefore, Court may trace corroboration by any other piece of evidence. If corroboration is to be traced, then also the DNA report by way of a scientific evidence of Anil Kumar Madukant Mehta (PW-11) (Exh.137) shows that the spots of spermatozoa/sperm/semen were found from the car were matching the DNA of A-1, as per the DNA Report (Exh.147). The aforesaid is coupled with the additional circumstances proved by the prosecution that thereafter A-1 was taken in the car up to Shahibaug Police Station and the possession of the car was taken by the police and he was also arrested. Under these circumstances, the involvement of A-1 is proved by prosecution. Further, as per the victim, A-1 took her from Shahibaug under-bridge to Ashoka Palace. Thereafter, as per the evidence, after she left Ashoka Palace, she was found on the rear seat of the car in the aforesaid condition, where A-1 was the only person present and the victim was in unconscious condition without any clothes on the lower part of her body and the T-shirt was raised up to her neck and her underwear was found lying in the car.
The other evidence of the prosecution witness, Hemantbhai Dharamvirsingh Chaudhari (PW-10) (Exh.133) and Naren @ Naurin Harishbhai Verma (PW-20) (Exh.213) has supported the say of Vaishali (PW-3) on the aforesaid aspect namely; of A-1 found in the aforesaid position and the victim found in the aforesaid position at about 3 to 3.30 a.m ., at Sola. The evidence of Panchnama of Panch witness for the scene of offence of Girdharbhai Rajman Mishra (PW-13) (Exh.187) supports the case of the prosecution. The attempt was made by the learned Counsel for the accused appellants to contend that when first panchnama was prepared on 1.1.2004, it has been stated in the panchnama (Exh.298) that the victim had stated before the panchas that the rape was committed in room No.106 and thereafter she had gone with the accused to room No.205, but at that time rape was not committed and, therefore, it was submitted that the same should also be considered as a declaration made and further the evidence, if any, so collected from Room No.205 cannot be considered as a valid proof for discharge of the burden by the prosecution. It was also submitted that since other material was not found, then what is recorded in the said panchnama and thereafter brought by the prosecution through the subsequent panchnama shows that the prosecution has thereafter cooked up the story against the accused and, therefore, it can be said that the prosecution has not brought all true facts before the Court and being unfair approach of the prosecution, the same would be fatal to the case of the prosecution and the accused would be entitled to the benefits thereof.
The contention deserves to be considered in light of the position as per the declaration made by the victim before the police in the complaint that after she was compelled to consume alcohol, she lost consciousness and, therefore, she might not be in a position to positively say that the rape was not committed in Rom No.205. Further, when other incriminating material is also found from Room No.205 for commission of alleged crime, it cannot be said that such incriminating material found from the Room No.205 deserves to be ignored. On the contrary it shows that when the first panchnama was prepared on 1.1.2004, certain articles were collected also from Room No.205. It further appears that thereafter as per the investigating officer, since further investigation was required, the scene of offence namely; Rooms No.106 and 205 was again examined on 16.1.2004 and upon detailed scrutiny in presence of FSL Officer, various materials of bed-sheet, bed-cover, pillow-cover etc., were found, including that of containing white spots. Another pertinent aspect is that thereafter those materials were sent for laboratory for DNA tests of spermatozoa and it was found that the DNA of the spots of spermatozoa was matching with the DNA of A-4. In the testimony of concerned police officer, Sunil P. Oza (PW-49) (Exh.310), he has stated that after the investigation was taken over by him from 8.1.2004, various statements were recorded and thereafter, the place was again visited by way of further investigation on 16.1.2004. On 16.1.2004, the panchnama of car and of the scene of offence namely; Room Nos.106 and 205 in presence of FSL Officer was made and various materials were collected. The pertinent aspect is that in the cross-examination of the said witness, when a question was put to him that when in the first panchnama, in the car nothing was found, and in spite of the same, why he got the idea of preparing second panchnama on 16.1.2004 and to that, the said witness has replied that in the investigation it was found that the clothes, sandals, purse and driving licence of the victim were inside the car and, therefore, in presence of the FSL Officer, panchnama was made again. He stated that after the arrest of the accused, it was found in the investigation that the clothes and the purse lying inside the car of the victim were taken away and, therefore, he found that once again the panchnama should be prepared of the car. On the aspects of delay of two days in preparing the panchnama of the car after he learnt in the investigation on 14.1.2004 that the purse, licence etc., of the victim were lying inside the car, but the panchnama was prepared on 16.1.2004, the said witness has explained that he had discussed the matter with the higher officer and, therefore, there was two days delay in drawing the panchnama. The witness has specifically denied that the panchnama dated 16.1.2004 was prepared since the complaint was filed in the Court against the police officer that A-1 was beaten in the custody. The aforesaid shows that after preparation of the first panchnama on 1.1.2004, certain accused were arrested and the statement of certain witnesses were also recorded and thereafter the Investigating Officer found that the place should be revisited and the panchnama was prepared. The defence in the cross-examination of the said witness has not been able to bring about any material showing that there was no genuine requirement for drawing panchnama of the scene of offence. Suggestion was made by the defence that since the complaints were filed against the police officer for beating in the custody to one of the accused, the evidence was concocted but the said aspect has been specifically denied by the police officer the said witness. Upon re-appreciation of the testimony of the said witness, we are unable to accept the contention that the second panchnama of the car or the room No.106 and 205 on 16.1.2004 was prepared so as to concoct the evidence against the accused as sought to be canvassed. Therefore, it cannot be said that the credibility of the evidence led by the prosecution in that regard is lost. In any case, as observed earlier, there is corroboration available by way of scientific evidence of DNA Report showing matching of spermatozoa with the semen of A-1 found from the car, wherein the victim was found in the aforesaid position i.e. as good as necked position in the car and A-1 was coming out from the car by mending his pant from the car.
The consideration of the evidence of panchas read with the evidence of Police Officers, Mansukhbhai Dungerbhai Lathia, P.I. (PW-47) (Exh.294), Manojbhai Rameshchandra Sharma, P.S.I. (PW-48) (Exh. 295), Sunilbhai Parshottambhai Oza, A.C.P. (PW-49) (Exh.310) show that incriminating material was found supporting the case of the prosecution. Further, DNA Report through the evidence of Dr.Anilkumar Madhukant Mehta (PW-11) (Exh. 137) shows that the spots of spermatozoa/semen found from the room of Ashoka Palace matches the DNA of A-4 and in the same manner spots of spermatozoa/semen found from the car matches the semen of A-1. At this stage, we may also record that even in the medical history given by A-4 before Dr.Bhavin Shyamlal Shah (PW-37) (Exh.256), which has been recorded in the case papers (Exh.260), A-4 has stated that he had intercourse with the victim, but as per him, it was with consent. Another aspect is that he has also stated that the victim had come with Monty (A-1) to Room No.106. He has also stated for the presence of his brother-in-law, Dharmendra (A-12). He has also stated of bringing bottle of R.C. by A-1 and the consumption of R.C. by Monty (A-1) and offering of R.C. to the victim (it may be recorded that R.C., during the course of hearing, as stated by the learned Counsel for the appellants, is one type of intoxicated material/liquor by brand Royal Challenge , popularly known as R.C. ). In the medical history given by A-1, he has spoken for the presence of A-4 himself, A-12 having gone to B.R. Farm and came back to Ashoka Palace but after 12.30 p.m., what happened at Ashoka Palace was not known to him, possibly because he had also consumed R.C.
The other evidence, in our view, of each of the witnesses has already been considered by the learned Sessions Judge in the impugned judgement from para 35 onwards and upon re-appreciation of the same, the credibility deserve to be given to the witnesses and the evidence supports the case of the prosecution. Hence, different view than that of the learned Sessions Judge cannot be taken. We need not reproduce the contents of the testimony of each of the witnesses in order to see that the present judgement is not burdened, since such will be only by way of repetition.
It appears to us that following vital aspects have been proved by the prosecution for involvement of the respective accused in the commission of crime as stated herein after:-
A-1
(a) A-1 is found on the spot with the victim in the same car, wherein the victim was lying on the back seat of the car in as good as necked position of no clothes on the lower part of the body and the T-shirt raised up to neck. The injuries are found upon person of A-1 below left eye, nail bite near nose, fresh injury below left eye and left ear. As per Vaishali (PW-3), Hemantbhai Dharamvirsingh Chaudhari (PW-10) and Naurin Harishbhai Verma (PW-20), Exh. 78, Exh.133 and Exh.213 respectively, A-1 had attempted to run away but he was not allowed and caught hold of by Hemant (PW-10) and Naurin (PW-20). In the history before the doctor by A-4, the presence of A-1 is stated and it is also stated that A-1 had brought R.C. bottle and had consumed the same and had offered to the victim. FSL Report shows that the semen of A-1 is found on the skirt of the victim. A-1 is the person, who brought the victim to Ashoka Palace by picking up the victim from Shahibaug under-bridge. Even in the medical history given by A-1, he has accepted his presence but he stated that he was not knowing what happened after 12.30 p.m., may be after consumption of liquor/R.C. The contents of the alcohol found from the blood of A-1 shows that A-1 had consumed alcohol.
(b) The aforesaid aspect of evidence led by the prosecution sufficiently proves the involvement of A-1 in commission of rape beyond reasonable doubt coupled with the aspect of multiple injuries found on the body of the victim for applying force upon the victim.
A-4
(a) He has admitted having intercourse with victim even in the medical history. DNA Report shows that the semen found from incriminating material matching the semen of A-4. In the medical history the presence of victim having brought to Ashoka Palace is proved. Once the sexual intercourse is proved and rather admitted in the medical history by A-4, but only stating that the intercourse was with consent is unbelievable on the face of it, because of such multiple injuries found for applying force upon the victim for vigorous sexual assault. Therefore, it can be said that the involvement of A-4 for the rape is proved. It may be stated that the attempt is made to state that there was love affair of the victim with A-4, which even if accepted at the face value, by no stretch can be considered as a licence or permission to have sexual intercourse by compelling the victim to consume liquor and to apply force for a sexual intercourse with the sexual assault. The most important aspect is that the victim during her lifetime has made declaration before the police in the complaint that A-4 had slapped and beaten her and compelled her to consume beer and alcohol and also for sexual intercourse. The victim in the said declaration has further stated that after committing rape, A-4 telephoned to Chandan (A-3) and hence, A-3 came into the room and in presence of him, A-3 and A-12 had intercourse with the victim by force and thereafter A-2 also came into the room and had intercourse with her by force. The injuries as stated in the declaration by the victim are getting full support from the medical evidence. Therefore, the involvement of A-4 is proved by the prosecution in the incident of commission of rape. Not only that but A-4 could be said as one of the prime accused for the whole incident of gang rape.
A-12
(a) The victim in her declaration has already stated about the role played by A-12 and also for intercourse by force upon the victim. The presence of A-12 is proved by the medical history given by A-4 before doctor. The medical evidence shows a violent sexual assault for a gang rape. The medical history given by A-1 also shows the presence of A-12 in the Room No.106 of hotel at the time of incident. Therefore, it can be said that the involvement of A-12 is proved.
A-2 and A-3
(a) The victim, in her declaration made before the police in the complaint, has already stated that initially A-3 had invited her for a party and that A-3 had intercourse with her by force in presence of Sajal (A-4) after A-4 telephoned A-3 and he came to the room. The victim in her declaration has also stated that A-2 came later on in the room and had also intercourse with her by force. The medical evidence supports the aforesaid declaration made by the victim and of violent sexual assault for intercourse with force. It deserves to be recorded that A-3 and A-2 are the sons of the owner of the hotel Ashoka Palace. As considered by us and observed herein above, the so-called subsequent declaration made in the application dated 3.1.2004 by the victim for stating the names of only A-1, A-4 and A-12 and not stating the names of A-2 and A-3 in the incident, in our view, could not be termed as a declaration to dilute the evidentiary value of the main declaration made in the complaint before the police, which is duly proved, more particularly because the said application had not come up on record, nor the circumstances under which the application was made by the victim had come up on record. The attempt was made on behalf of A-2 and A-3 to prove alibi in two ways; one is by making the witness police officer to produce the mobile telephone printout from the respective mobile companies and thereby a defence is sought to be raised that the Investigating Officer has tampered with the record and has frustrated the evidence of alibi of A-2 and A-3. It was also submitted that neither all correct data were not produced, nor the Investigating Officer made an attempt to collect binary data from the mobile company in order to find out the presence of A-2 and A-3 at or nearby Ashok Palace or not. It was submitted that under these circumstances, since the investigation has not been conducted in a fair manner to bring about the truth before the Court, the prosecution case should be disbelieved against A-2 and A-3 based on the evidence led by the prosecution itself, apart from the evidence produced by A-2 and A-3 through their defence witnesses and, therefore, the benefits should be made available to A-2 and A-3.
It is hardly required to be stated that it is by now well settled that the prosecution is at liberty to prove its case for showing the guilt of the accused by examining the witnesses as the prosecution finds it proper and sufficient to prove the case. At the same time, if any important material, though found by the prosecution in the investigation, is withheld, which may frustrate the case of the prosecution, Court may consider the importance of the evidence and also the aspect of unfair approach of the prosecution just to secure conviction of the accused. At the same time, while considering the aforesaid aspect, the Court would also consider the burden of proving the alibi upon the accused concerned, if any. If the evidence of the present case is examined in light of the aforesaid, it does appear that the printout of mobile data were not produced by the concerned Police Officer Sunil P. Oza (PW-49) (Exh.310) in the Examination-in-Chief, but in the cross-examination of the said witness on behalf of A-2 and A-3, when the question was put to him about the details of SMS, he has specifically stated that such details are not received by him. He has also specifically denied that any details of SMS supplied by Reliance Company are suppressed by him. The defence made the said witness to produce the forwarding letter and call details/printout received by Shri Sanjaykumar Karnidan Gadhavi (PW-51) (Exh 423), the Superior of the Investigating Officer from Airtel Mobile Company and the witness has also produced such details. The witness, when was asked various questions upon the printout of the data, which was made to produce by the defence in his cross-examination, he has answered all questions as put by the defence on behalf of A-2 and A-3. He has also specifically stated that when he insisted for the details of SMS from the mobile company, he was conveyed that it was not possible to get such details from the system. When he was confronted with the contradictory details in two statements, printout of mobile in his cross-examination dated 27.6.2007, the said witness has specifically denied that any entries have been deleted knowingly. He has specifically denied that any tampering was made with the printout in collusion with the mobile company Airtel. When other Police Officer supervising the investigation is examined as PW-51, Mr.Sanjaykumar Karnidan Gadhavi (Exh.423), in the Examination-in-Chief, he has not specifically produced any mobile printout, but said witness was also, in the cross-examination, made to produce certain record by the defence on behalf of accused No.2 and 3. When he was asked about the details, he has specifically denied that all the data, which were supplied by Reliance, Idea Limited were not allowed to be produced in the Court. He stated that he was unable to state as to whether the company officer would be in a position to retrieve the data of any mobile printout or not, since the same being technical aspect, it could only be stated by the officer of the company. When he was put with the question of different data of tower code, in his cross-examination dated 31.7.2007, he has specifically stated that such aspects could be explained by the company officer only. However, he further stated that as per his information with the detailed discussion in the investigation, such change in the mobile printout was general and the same could happen if more than one or two telephones were recorded at a time. He further stated that such could happen, if there was more load over a particular tower.
We have considered the mobile data printout as were brought in evidence in the cross-examination of the aforesaid two Police Officers, but the pertinent aspect is that the prosecution has not produced such evidence through the examination-in-chief of the said witnesses and from the answers given by the said witnesses read with the mobile printout showing different locations at one point of time of a very person shows that the prosecution found it proper not to rely upon such evidence in view of the confusion so found in the technical data. In any case, the location of the mobile found of a particular person at a particular place cannot be treated as a sufficient proof for showing the presence of that person and at the most it may be considered as an indication provided such mobile data are non-conflicting. Had the intention of prosecution been to frustrate the case of the alibi or to withhold the data from the Court, such data would not have come on record. Whatever the data or information was available has been produced by the prosecution. Some data even in the mobile printout shows that there is supporting evidence to the case of the prosecution for a particular time of a particular accused or the witness, as the case may be, but when the other evidence was already available and if the prosecution has found it proper not to rely upon such evidence of mobile printout, more particularly when the details were contrary in so many cases of a particular time in respect of more than one accused, it cannot be said that there was any unfair approach on the part of the prosecution. Apart from the above, the burden of proving alibi is upon the defence, who is pleading such alibi. If the prosecution has not produced particular document having found that the same is not fully reliable and if the prosecution finds that the other evidence, which is more reliable deserves to be produced, it would not, in any way, frustrate the case of the prosecution. If the defence is to discharge its burden for proving the alibi, it is for the defence to produce record. The defence when, in cross-examination, made the prosecution witness to produce the whatever details so collected and if the same was produced, such, on the contrary, shows the fair approach on the part of the prosecution, but thereafter if any contradiction is found in the mobile data or printout, it is not open to the defence to take benefit thereof and to contend that the evidence of alibi is frustrated by the investigating officer, more particularly because the burden of proving alibi is upon the accused concerned. Nothing prevented the accused from producing reliable and concrete evidence, if they were so desirous. A lame attempt was made to move an application for production of such data, but the same was not pressed and even in the list of defence witnesses on behalf of the accused, no officer of mobile company possessing authenticated data, which may include binary data as contended by the learned Counsel for the concerned accused, was also included. Under these circumstances, we cannot accept the contention of the learned Counsel for the accused No.2 and 3 that since, there were discrepancies in the mobile data, the same was at the instance of the investigating officer or that the prosecution withheld any important mobile data, showing innocence of the accused as sought to be canvassed. In our view, it is for the accused pleading the case of alibi to prove the alibi and the burden of proving the alibi is upon the accused concerned by showing any discrepancy in the case of the prosecution. The accused may contend that the evidence produced by the prosecution is unbelievable or non-credit worthy, but thereby accused cannot succeed in proving the alibi, for which otherwise the burden is to be discharged by him.
The aforesaid now leads us to examine the aspect as to whether accused No.2 and 3 have discharged the burden of alibi on the principles of probability and as to whether such evidence is believable as against the evidence produced on behalf of the prosecution or not. A-3 has examined DW-4, DW-5, Dw-6 and Dw-7 as his defence witnesses and A-2 has examined DW-8 as the defence witness. Alpesh Malivat (DW-4) was cross-examined by the Public Prosecutor and he has stated to have good relationship with the family members of A-2 and A-3. The affidavit of him has been administered after four months but when the police came to his house, he did not find necessary to go to the Court and to tell the truth. Of his own he has not gone to the police station for stating the truth. No photography or videography of the party dated 31.12.2003 was made. The owner of B.R. Farm has also not been examined, nor any receipts for payment for use of B.R. Farm has been produced. In spite of the fact that the witness was knowing personally A-2 and A-3, he has not gone to the police for providing information, but after four months, the affidavit is prepared. Under what circumstances such affidavit was prepared has also not come on record. If any party was organized at B.R. Farm, the owner of B.R. Farm was the best person to say, but has not has been examined at all. No evidence is produced for the persons, who were caterers or who played the music etc. On overall reading, it appears that since the said witness was a close friend, he has deposed before the Court to help A-2 and A-3. Overall reading of his testimony with the statement made in the cross-examination is full of doubt and does not inspire any confidence. Sandip Jain (DW-5) is another witness examined. The said witness when was asked by the Court about the number of his mobile phone, the witness said that he did not remember. He had also no passes of Greenwood and he is close to the family of A-2 and A-3. No evidence is produced for any payment made to Ruhan, who had played the music as D.J. The overall testimony of the said witness does not appear to be trustworthy and it appears that in order to help A-2 and A-3, he was sited as witness and has been examined, but the way in which the description is made by him, if read with the cross-examination, his testimony does not inspire any confidence. Gurvindersingh (DW-6) is a friend of A-2 and A-3. He also appears to have stated as witness just to help A-2 and A-3. Smt. Nita Amit (DW-7) is the sister of A-2 and A-3. She has not stated about the presence of A-2 and A-3 at 12.45 to 3.45 a.m., on 1.1.2004. In cross-examination, she has stated that he does not know as to who is the owner of B.R. Farm It appears that only with a view to help her brothers she has stepped into the witness box. Otherwise her testimony does not inspire any confidence. Ankit Kanodia (DW-8) is also a friend of A-2. After three months from the date of the incident, he has stated to have filed the affidavit. In the cross-examination, the said witness has not been able to give details about the common friend, more particularly Kim, nor he was having any address of Kim. In any case, Kim is not examined as witness.
The aforesaid shows that all defence witnesses are friends of A-2 and A-3and one of the witnesses is the sister of A-2 and A-3. It was open to the defence to produce independent witness because if the party was really held and there were other people also, any independent witness could be produced but no independent witness has been produced. No documentary evidence is produced for taking B.R. Farm on rent, the owner of B.R. Farm is also not examined. Receipts for the money paid to D.J., or to any caterer have also not been produced. Had D.J. Or owner of B.R. Form been examined, all story by the aforesaid defence witnesses could be tested. It appears that the truth is concealed and only with a view to help A-2 and A-3 they have deposed before the Court. Upon re-appreciation of testimony of the aforesaid witnesses, we find that they are not inspiring any confidence, but since in some of the mobile printout different tower locations are mentioned, fake attempt is made to prove alibi. Even on the principles of probability, it is for the defence to prove the alibi by the trustworthy evidence and the burden in our view has not been discharged. As against the same, the prosecution has adopted more reliable evidence and through the mouth of the victim who herself was sufferer of the incident has been able to show the involvement of A-2 and A-3 through her own declaration and other corroborative evidence in support thereof. Therefore, it appears to us that the defence taken on behalf of A-2 and A-3 of alibi has not been proved. In view of the aforesaid discussion, we find that the involvement of A-2 and A-3 in the incident of gang rape has been proved by the prosecution.
In our view all the aforesaid discussions and discussion, we find that the prosecution has been able to prove by oral as well as documentary evidence for involvement of A-1, A-2, A-3, A-4 and A-12 in commission of crime i.e. gang rape.
We shall now consider the evidence showing the circumstances after commission of crime and more particularly after registration of the complaint with police. The conduct of the accused in this regard would also be one of the relevant aspects to be considered. A-1, although was found on the spot, he made repeated attempts to run away, but he was not allowed to go by Hemant (PW-10) and Naurin (PW-20) and he was arrested thereafter by the police on the same day of complaint. As per the prosecution case father of A-2 and A-3 had made attempt to destroy the evidence. A-5, A-6, A-7, A-8, A-9, and A-10 were close relatives of A-1, A-2 and A-3 as the case may be, have tried to destroy the evidence and incriminating material. It is a different thing that they have been acquitted by the learned Sessions Judge by giving benefit of doubt but the fact remains that those evidences, which were incriminating material were destroyed and such material has not come on record. Another aspect is that A-2 and A-3 were absconding and thereafter they have been arrested. In the same manner, A-4 was also absconding and ultimately arrested. A-12 also was absconding for a long time and thereafter he has been arrested. All aforesaid conduct, in our view, could be the circumstances going against the innocence of A-1 to A-4 and A-12.
All the learned Counsel appearing for the accused namely; A-1 to A-4 and A-12 had contended that the case is based on circumstantial evidence and there is no direct evidence available. It was submitted that in a case based on circumstantial evidence the chain has to be completed, leading to the inescapable conclusion for the guilt of the accused. It was submitted that now since the deceased is not available for cross-examination at the time of trial since she has died, the Court should view the case as that of circumstantial evidence and as the chain is not proved, it cannot be said that the prosecution has been able to prove the case against A-1 to A-4 and A-12 beyond reasonable doubt.
The arguments proceed on the basis that the declaration made in the complaint by the victim before the Police cannot be considered as dying declaration under Section 32 of the Evidence Act and, therefore, the case would result into circumstantial evidence. As examined and recorded by us earlier, the death of the deceased has a proximate relation to the incident of gang rape and as we have also dealt with the said submission, we need not discuss the said issue again, but if the declaration made by the victim before the police has considered as dying declaration, the question of treating the case as based on circumstantial evidence would not arise at all. Even if the principles of reasonable prudence is to be considered when the dying declaration of the victim has come on record the Court in a given case may trace for corroboration, but while considering the corroborative piece of evidence to dying declaration it is not that the chain has to be completed. If the Court finds corroborative material supporting dying declaration, the same would be sufficient to prove the case of the prosecution though as such once the dying declaration is found to be trustworthy, the conviction can also be based on the said declaration. The medical evidence fully corroborates thee statement made by the victim during the lifetime before the police in the complaint of violent sexual assault with gang rape. The number of injuries caused on the body of the victim show no sexual intercourse with consent, but the application of force and sexual assault in a barbarous manner upon the person of the victim. Further, for involvement of each of the accused in the said commission of crime, there is sufficient evidence supporting the case of the prosecution. Therefore, when declaration is that of the victim and there is also corroborative evidence in support of the declaration made by the victim during her lifetime before the police in the complaint we are unable to accept the contention that the case is based on circumstantial evidence and should be viewed from the principles to be applied to a case of circumstantial evidence. Therefore, the said contention deserves to be dismissed.
It was also attempted to contend that the story alleged by the prosecution is basically improbable inasmuch as A-12 committing rape upon the victim in presence of A-4, who was brother-in-law (sister s husband). It was submitted that no brother (A-4) of any lady (wife of A-12) would permit sexual intercourse by husband of his sister. The contention is to be viewed not on the aspect of morality, but is to be viewed and considered based on the evidence available before the Court. If the ideal morals are to operate a male cannot behave with a female in barbarous manner for sexual intercourse. The morality does require ideal moral standard for woman or female to be treated with her full dignity as human being. When evidence has come on record and victim herself during her lifetime as stated that A-12 had intercourse with her with force in presence of A-4 and the presence of A-4 is proved at the scene of offence and there is also corroborative medical evidence, the evidence led by the prosecution cannot be discarded on the ground as sought to be canvassed. Therefore, it appears to us that the contention is nothing but an eye-wash to side-track the real issue of considering the case of the prosecution for proving the guilt of the concerned accused.
In view of the aforesaid observations and discussions, following can be deduced:-
(a) The medical evidence shows the injuries caused upon the person of the victim and the gravity and nature of injuries on the external as well as internal private parts of the victim shows that a gang rape has been committed upon the victim in a violent manner;
(b) There is corroborative evidence resulting into the circumstances leading to the conclusion of commission of gang rape upon the deceased;
(c) The evidence even after considering the defence witnesses shows the involvement of A-1 to A-4 and A-12 for commission of crime i.e. gang rape and other offences, which are found proved by the learned Sessions Judge;
(d) The further circumstances, including conduct of the accused after commission of crime and after registration of the complaint go against the innocence of A-1 to A-4 and A-12;
(e) Section 32 of the Evidence Act can be applied for the contents of the complaint made before the Police Officer and the same can be termed as dying declaration of the victim during her lifetime. The declaration made in the said dying declaration inspires confidence;
(f) There are corroborative pieces of evidence supporting the genuineness of the statement made in the dying declaration by the complainant;
(g) The role played by each of A-1, A-2, A-3, A-4, and A-12 proves their guilt in commission of gang rape under Section 376(2)(g) and other charged offences, which are found to have been proved by the learned Sessions Judge.
Apart from the above aspect, we may record that the victim has committed suicide on 7.1.2004 and suicide note (Exh.571) was found from the victim from the dead body of the victim. The said suicidal note is already reproduced by us herein above in paragraph 2 of the judgement and, therefore, we need not repeat the same, but the contents thereof clearly shows great agony and mental trauma suffered by the victim on account of the gang rape and also the involvement of all the five accused namely; A-4 (Sajal), A-3(Chandan), A-2 (Mandan), A-1(Sugam) and A-12 (Karan).
The learned Counsel appearing for all the accused heavily opposed the consideration of the said suicidal note by the learned Sessions Judge in the impugned judgement while finding out as to whether the prosecution has been able to prove the case against A-1 to A-4 and A-12. It was submitted that the said suicidal note (Exh.571) from the record of Sessions Case No.239 of 2004 was imported by the learned Sessions Judge in the present matter in exercise of power under Section 165 of Evidence Act and that too after the statement of all the accused under Section 313 of Cr.P.C., were recorded. It was submitted that the said suicidal note is not proved in the present case and, therefore, the learned Sessions Judge has committed great error in considering the said piece of evidence of suicidal note (Exh. 571). It was also submitted that if the suicidal note is excluded from the evidence, the decision of the learned Sessions Judge, wherein she has also considered suicidal note would be vitiated and the accused would be entitled to the benefits thereof.
At the first brush one might find the contention with some substance because the said material is brought on record after recording all the statements under Section 313 of Cr.P.C., but in our view the matter can be considered from two angles; one would be without suicidal note; and another would be with suicidal note. All evidences led by the prosecution as considered by us herein above are without relying upon the suicidal note by the victim. Therefore, we are of the view that even if suicidal note is excluded, the prosecution has been able to prove the case beyond reasonable doubt against A-1 to A-4 and A-12. Further, the circumstances of bringing on record the suicidal note in the present matter, if considered, with the aspects of any prejudice caused to the accused in raising the defence, it may be said that there was no prejudice as sought to be canvassed, because the said suicide note of the victim was already proved by the evidence of hand-writing expert in Sessions Case No.239 of 2004 and at that time, accused were permitted to cross-examine the witnesses concerned because in Sessions Case No.239 of 2004, also A-1 to A-4 and A-12 were the accused. Further, it is not that the Court has no power under Section 165 of Cr.P.C., to direct for production of the evidence from any other case, subject to the defence available to the accused. In our view, we need not record a conclusion on the said aspect, because as per the observations and discussions made by us herein above even if suicidal note is excluded, it cannot be said the prosecution has not been able to prove the case for showing the guilt of the accused No.1 to A-4 and A-12 beyond reasonable doubt. Therefore, it appears to us that the aspect of consideration of suicidal note for tracing guilt of the accused would not assume much importance considering the facts and circumstances of the present case. Further, the contention based on the so-called application of the victim made to the police commissioner, wherein the names of A-2 and A-3 were not stated and, therefore, it can be said that there were two dying declarations and hence, the first declaration made by way of complaint before the police becomes unbelievable, is already dealt with by us herein above and, therefore, we need not repeat the said discussion. We have observed that the so-called aspect of non-mentioning the names of A-2 and A-3 in the so-called application made by the victim cannot be termed as dying declaration because neither such application has come on record, nor the circumstances leading the victim to make such application has come on record. In any case, even if there is more than one dying declarations, the Court would make an attempt to find out as to which dying declaration is genuine by tracing the corroborative piece of evidence. We have also observed earlier that the involvement of A-2 and A-3 in the commission of gang rape is supported by the other corroborative piece of evidence to show that the declaration made in the complaint before the police by the victim during hear lifetime is reliable piece of evidence. Under these circumstances, whether suicide note is considered or not, the same would ultimately make no difference in satisfying the requirement of the prosecution to prove the case against A-1 to A-4 and A-12, which would include A-2 and A-3, guilt for offences, which are found to have been proved by the learned Sessions Judge.
It was contended on behalf of A-2 and A-3 by learned Counsel that since binary data from mobile company were not produced by the prosecution the case of the prosecution could be said as vitiated. It was also submitted that on behalf of A-2 and A-3, the applications were made before the learned Sessions Judge to call upon the mobile company officer to produce the mobile data , but the said application was not decided by the learned Sessions Judge until the statement of the accused was recorded under Section 313 Cr.P.C. It was submitted that thereafter at the fag end the order was passed by the learned Sessions Judge that the defence may examine as their witnesses and the application was disposed of. Therefore, the application has been made being Criminal Misc. Application No.13156 of 2008 in Criminal Appeal No.2195 of 2008 and Criminal Misc. Application No.13157 of 2008 in Criminal Appeal No.2195 of 2008 for production of additional evidence and this Court vide order dated 9.12.2011 had observed that the said aspect shall be decided at the final hearing of the respective appeals. The learned Counsel, therefore, submitted that this Court, if is inclined to consider the matter for additional evidence, may relegate the matter to the learned Sessions Judge for recording of the evidence of the mobile company officer and appropriate orders may be passed in the respective appeals.
Again the contention may appear to be attractive but upon close scrutiny it does appear that the accused A-2 and A-3 at no point of time pressed the application when the evidence of the prosecution was going on and it is only after the recording of statement under Section 313 the applications were pressed. Had A-2 and A-3 been serious about the said applications, they could have pressed the application earlier when the evidence of prosecution was coming on. In any case, the learned Sessions Judge had kept the right of the applicants/appellant open if they were so desirous to produce mobile company officer as their defence witnesses. We have also recorded earlier that A-2 and A-3 did not site any mobile company officer as their witnesses for production of binary data or otherwise. Therefore, it could be said that they consciously dropped the mobile company officer as their witness, though sufficient opportunity was available to them. Any accused when was given opportunity to lead evidence if has not opted for leading evidence when trial was going on and the evidence on behalf of the prosecution was being led, cannot be heard to say at the later stage that the reasonable opportunity has not been given by the trial Court and, therefore, they should be permitted to produce additional evidence or that the matter may be remanded for such purpose. In any case, when the prosecution has not examined the mobile company officer as the witness on account of the conflicting details available in the system for respective mobiles, nothing prevented A-2 and A-3 to examine mobile company officer as their witness but such attempt was not at all made. If after conclusion of trial any accused is allowed to lead the evidence of any witness, which was consciously dropped or not examined at the time of trial, it would result into endless proceedings and the sanctity of the proceedings would be lost. In view of the peculiar facts and circumstances that A-2 and A-3 had opportunity to lead the evidence by examining the mobile company officer as their witness and in spite of that, such was not opted by them and when we find that the evidence of mobile printout could not be said as authenticated record for showing the presence of any person at a particular place and the other evidence as led by the prosecution is sufficient to prove the guilt of A-2 and A-3, it would not be a case for allowing A-2 and A-3 to take any undue benefit, nor there would be any requirement for production of additional evidence, which may be material for deciding the present appeal.
In view of the aforesaid observations and discussion, we find that the conviction of A-1 to A-4 and A-12 for the offences as found to be proved by the learned Sessions Judge deserves to be maintained and no interference is called for, since we are of the considered view that the prosecution has been able to prove the case beyond reasonable doubt against A-1 to A-4 and A-12. However, even if the conviction is maintained, we may be required to examine the aspects of imposition of sentence.
The The principles of imposition of sentence are by now well settled. Apart from the aspects of personal circumstances of the accused, Court cannot lose sight of the deterrent effect to be created while imposing sentence. But at the same time, the gravity of the offence and the consequential effect arising on account of the commission of offence would also be one of the relevant circumstance while imposing sentence. At this stage we may advert to certain observations of the Apex Court on the question of proportionality of punishment in the case of Siriya alias Shri Lal v State of M.P., reported in AIR 2008 SC 2314. It was, inter alia, observed by the Apex Court in the said decision at paragraphs 6, 7,8, 9, and 10 as under:-
6. The next question is whether any lenience in sentence is called for.
7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (1991 (3) SCC 471).
9. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.
10. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDauth v. State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
At the same time, we need to record that the offence of rape itself is a serious offence and offence of gang rape can be said as more serious. The Apex Court in the case of State of Punjab vs. V. Gurmit Singh and Ors., reported in (1996) 2 SCC, 384, has observed that that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, but it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.
It may also be recorded that thereafter, the Apex Court in the case of State of M.P. vs. Babulal, reported in (2008) 1 SCC, 234 did observe that such case of rape needs to be dealt with sternly and severely. Therefore, when a case is that of a gang rape, the sentence is called for not only of rigorous imprisonment, but with fine. The Parliament under Section 376 has provided for the offence under Section 376(2)(g) for a minimum sentence of ten years, but such may extend to life and also liability to pay fine.
Much argument was raised on the aspect of mitigating circumstances and also on the basis of the age of the accused. It was submitted that the accused No.2 is of a very young age. The conduct of other accused within the jail has been very good and, therefore, this Court may reduce the sentence to ten years, instead of life-imprisonment as imposed by the learned Sessions Judge upon A-1 to A-4 and A-12.
Whereas on behalf of the State, the learned Public Prosecutor has submitted that the sentence imposed for life-imprisonment upon each of the accused is proper and no interference is called for.
When we advert ourselves to the sentence for an offence of gang rape, we may record that the offence under Section 376(2)(g) is punishable with R.I. for a term, which shall not be less than 10 years, but may extend to life and shall also be liable to be fined, subject to the proviso for such circumstances, when the sentence is to be imposed for a term less than 10 years. The relevant aspect is that the higher limit of the fine is not provided by Section 376(2)(g) when sentence is to be imposed.
But when Court considers the aspects of imposition of sentence, it is required for the Court to bear in mind the provisions of Section 357 of Cr. P.C., for awarding of compensation from the amount of fine was imposed by the Court. The same is essentially to see that the victim or the dependent members of the family of the victim are not forgotten in the criminal justice system and the Court is required to take a constructive approach in our criminal justice system more particularly when the offence is so serious which results into destroying the identity of a woman or a female as human being. At this stage, we may refer to the decision of the Apex Court in the case of Hari Kishan & State of Haryana v. Sukhbir Singh & Ors., reported in AIR 1988 SC, 2127, wherein the Apex Court had an occasion to consider the effect of the provisions of Section 357 of Cr.P.C., with the enabling power of the Court to award compensation and it was observed at paragraphs 10 and 11 as under:-
10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case. we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent. a constructive approach to, crimes. It is indeed a step forward in our criminal justice system. We, therefore,recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
11. The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default. (Emphasis supplied) We may also state that in the said case the Apex Court has awarded compensation of Rs.50,000/- to the victim where, of course, the number of accused was more than one. The aforesaid observation of the Apex Court shows that the Apex Court has recommended to all Courts to exercise the power broadly so as to meet with the ends of justice in a better way and simultaneously, it is also observed that the compensation must be reasonable, depending upon the facts and circumstances, of each case. It has been observed that the quantum of compensation may be determined by taking into account the nature of crime, the justness and the ability of the accused to pay. It is also observed that if there are more than one accused, they may be asked to pay in equal terms, unless their capacity to pay varies considerably.
If the facts of the present case are examined, we find that the offence is not only a very serious in nature, but it has practically destroyed the human dignity of a victim, who is now deceased with a vigorous sexual assault. One may say that she has been treated for the purpose of sexual intercourse as an object and the behavior of the accused, which has resulted into causing serious injuries of the body of the victim and more particularly the private parts, is in a barbarous manner. It has also come on record that on account of the incident the victim had to undergo great mental trauma and so was for the close family members of the victim. It has also come on record that the victim ultimately on account o the aforesaid incident and the subsequent circumstances of mental trauma in the treatment given to her and her family members could not bear psychologically such trauma and had committed suicide. Keeping in mind the aforesaid aspect if we consider the sentence imposed of undergoing life-imprisonment and fine of Rs.15,000/- to each of the accused for the offence under Section 376(2)(g) read with Section 34 of IPC and further S.I. of three months for default in payment of fine, in our prima facie view, the amount of fine imposed, keeping in view the gravity of offence and the social circumstances showing the capacity of the accused to pay, could be said on lower side. Further it appears that no direction has been given by the learned Sessions Judge under Section 357 of Cr.P.C., to pay any amount to the victim or her family members by way of compensation. As the State is not in appeal for enhancement of fine imposed upon each of the accused by the learned Sessions Judge, we find that it may not be possible for this Court to enhance the amount of fine by maintaining the sentence of life-imprisonment, nor we may be in a position to direct for payment of compensation to the victim, who is no more but to the family members of the victim from the amount of fine, which is already imposed by the learned Sessions Judge. The dependent family members of the complainant victim have not preferred any appeal for payment of any compensation from the amount of fine already recovered or for enhancement of fine than the fine imposed by way of appeal for enhancement and to pay any compensation therefrom to the dependent members of the family of the victim deceased. Under these circumstances, we may not be in a position to either enhance the fine or to direct for payment of compensation from the amount of fine already recovered to the dependent members of the family of the victim deceased and we leave the matter at that stage for the purpose of payment of compensation to the members of the family of the victim deceased under Section 357 of Cr.P.C. On the aspects of personal mitigating circumstances, even if they are considered in respect of each of the accused, as against the gravity of the crime and the vigorous sexual assault in a barbarous manner upon the victim, we do not fine that the learned Sessions Judge has committed any error in imposing sentence of life-imprisonment for the offence under Section 376(2)(g) more particularly when we have found that each of the accused (A-1 to A-4 and A-12) have committed sexual intercourse upon the victim by force that too in a barbarous manner. Hence, we find that the sentence imposed upon each of the accused by the learned Sessions Judge as per the impugned judgement does not call for any interference and they deserve to be confirmed.
The aforesaid now would lead us to examine the appeal preferred by the State against the order of acquittal granted to certain accused and whether any interference is called for or not. As recorded earlier, we have already considered the entire evidence of all the witnesses, including against those accused, who have been granted acquittal namely; A-5 to A-11.
The scope of exercise of power in an appeal against the judgement and order of acquittal by the trial Court is by now well settled. It is that unless the appellate Court finds that the view taken by the trial Court is impossible no interference is called for.
We find that the we need not repeat the evidence of each of the witnesses. So far as accused No.5, 6 and 10 are concerned, charges were framed against them for destroying the evidence in the seat cover of Maruti Zen Car and thereby for the offence under Section 201 read with Section 376(2)(g) read with Section 341 of IPC. The learned Sessions Judge has taken the view that the photography of the site while preparing panchnama was advised by the FSL Officer, but as was not done. The panchnama cannot be treated as discovery panchnama. It is also found by the learned Sessions Judge that in the articles recovered, neither any blood or semen was found. Further, no eye-witness has been examined. No evidence is led by the prosecution that the duplicate key of the Swift Maruti Zen, which was lying in Shahibaug Police Station has been used by Accused No.10 with an intention to destroy the evidence and/or with an intention to facilitate the Accused No.5 and 6 to take out the mattress lying inside the said Maruti Zen Car. We have further gone through the reasons recorded by the learned Sessions Judge at paragraph 50 of the impugned judgement. It appears therefrom that in absence of any material and reliable evidence the learned Sessions Judge has found that A-5, A-6 and A-10 are entitled to the benefit of doubt qua the culpability in the charged offences against them.
Even in respect of the evidence against A-7, A-8 and A-9 the charge was the same as that of Section 201 read with Section 376(2)(g) read with Section 341 of IPC for destroying of the evidence like bed-sheet, mattress, etc., with a view to screen the Accused No.1 to 4 and Accused No.12 and 13 from the legal punishment. In their case also Panchnama for photography or videography was not undertaken. The Panch witness Rajubhai Ishwarbhai Kahar (PW-19) (Exh.208) has not identified against A-8 for destroying or or burning the evidences taken from the room of Ashok Palace. No witness has been examined to establish that of the said items were taken out from Room No.106 and 205 and concealed and then was taken to open plot of Manibhadra at Nikol Village by Accused No.7 and others and thereafter such items were burnt by use of kerosene. No blood or semen has been found by the FSL in the Report (Exh.336) from the residual. We have also gone through the reasons recorded by the learned Sessions Judge in the very paragraph while considering the case against Accused No.7, 8, and 9. It appears that the learned Sessions Judge has found that the direct link establishing the guilt of the accused or the prior knowledge of the accused has not been proved by the prosecution and, therefore, the learned Sessions Judge has found that the guilt of the accused have not been proved beyond reasonable doubt for the charged offences.
So far as Accused No.11 is concerned, the State has not preferred any appeal against the order of acquittal. Therefore, we need not discuss any evidence pertaining thereto, as the appeal of the State is only against the acquittal granted to A-5 to A-10.
Upon re-appreciation of evidences, we find that the learned Sessions Judge on account of the evidence available has taken a view for grant of benefit of doubt, which cannot be said as an impossible view. Therefore, if the panchas of the present case and the evidence on record are considered, it cannot be said that the acquittal granted by the learned Sessions Judge to Accused No.5 to 10 calls for interference in exercise of the appellate power of this Court. Hence, the appeal preferred by the State against the acquittal of A-5 to A-10 deserves to be dismissed.
In view of the aforesaid observations and discussions, following orders:-
(a) The judgement and order of the learned Sessions Judge for conviction and imposition of sentence upon A-1 to A-4 and A-12 deserves to be confirmed and hence, is hereby confirmed.
(b) Criminal Appeal No.2124 of 2008 preferred by Sugam @ Monty Harishanker Jaiswal (A-1), Criminal Appeal No.2195 of 2008 preferred by Chandan Pannalal Jaiswal (A-3), Criminal Appeal No.2196 of 2008 preferred by Ashok @ Mandan Pannalal Jaiswal (A-2), Criminal Appeal No.2178 of 2008 preferred by Sajal Sureshkumar Jain (A-4) and Criminal Appeal No.2180 of 2008 preferred by Dharmendra @ Karan @ Montu Mohendrakumar Jain (A-12) with Criminal Misc. Application No.13156 of 2008 in Criminal Appeal No.2195 of 2008 and Criminal Misc. Application No.13157 of 2008 in Criminal Appeal No.2196 of 2008 are dismissed.
(c) The judgement and order of the learned Sessions Judge for acquittal is not interfered with and Criminal Appeal No.2429 of 2008 preferred by the State deserves to be dismissed. Hence, dismissed.
In view of the aforesaid order, as the main appeals have been disposed of Criminal Misc. Application No.4066/2009, 4067 of 2009, 4069 of 2009, 4071 of 2009 and 4073 of 2009 shall stand disposed of.
It is observed and clarified that any observations made by us in the present judgement shall not, in any manner, prejudice the rights and contentions of the State and/or any of the concerned accused in Criminal Appeal No.2438 of 2008 and the rights and contentions of both the sides in the said appeal against the judgement and order of acquittal granted by the learned Sessions Judge in a separate Sessions Case No.239/2004 shall remain open.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) bjoy/vinod FURTHER ORDER:
1. After the pronouncement of the order, the learned Counsel appearing for all the accused pray that time may be granted to surrender to the accused, so as to enable them to approach before the higher forum, if they so desire.
2. Whereas, the learned APP submitted that it was not a case where pending the appeals, bail was granted by this Court, but the Hon ble Supreme Court of India has granted bail recently on account of the fact that the appeals were not finally heard and decided. He submitted that as the appeals are now decided, no time may be granted to surrender.
3. Considering the facts and circumstances, we find that the appeals are decided and, therefore, all the accused appellants namely; Accused No.1 to 4 and 12 shall surrender themselves with the jail authority concerned within a period of two weeks from today, failing which their bail bond shall stand cancelled and they shall be taken into custody by the concerned Police Officer forthwith to undergo remaining sentence.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) bjoy/vinod Page 121 of 121