Nandlal Zagadu Yadav v. The State of Maharashtra

2. The prosecution case in nutshell is as under. The victim who is adult stated to be a patient of schizophrenia, a mental disease. On 7th March 2008 around 1.30 p.m. she boarded one auto-rickshaw which was driven by the appellant-accused and asked him to take her for roaming. The victim was taken to Jogaiwadi Guest House at about 3.00p.m.. The appellant had taken room No.B/2. It is the case of the prosecution that the appellant committed rape on the victim in the said room. Any how the victim raised hue and cry for help. The Manager of the said guest house rushed to the room and gave call. The door was opened and victim came out of the room and ran outside the guest house. She approached to two rickshaw drivers who were at rickshaw stop and narrated the incident to them, when they made enquiry with her as to why she was crying. Those two rickshaw drivers caught accused and brought the victim and the appellant to Madh Beat police Chowki. The Police Officer attached to Madh Beat police Chowki made enquiry with the victim. The victim narrated the incident to the police officer. The victim girl and the appellant were brought to Malwani Police Station. Police Constable, Nitin Shinde, lodged the FIR against the appellant-accused on the basis of narration given by victim. On the basis of FIR lodged by the police Constable-Shinde, Crime No.56/2008 under Section 376 of IPC came to be registered at Malwani Police Station.

3. The investigation was entrusted to API, Manohar Harpude. He arrested the accused and seized clothes of the victim girl. The panchnama of scene of offence came to be prepared. Victim was referred for medical examination at Nagpada Police Hospital. Investigation Officer could not record the statement of the victim girl as she was not in a position to narrate about the incident. Remaining part of investigation was conducted by Police Inspector-Jamdade (PW No.11) who recorded statement of two auto rickshaw drivers who brought the victim girl at Madh Beat police Chowki. He despatched the mudemal articles to the forensic laboratory for analysis and report. After completion of investigation, the investigation officer found sufficient evidence against the appellant-accused. The chargesheet came to be filed in the Court of Metropolitan Magistrate at Borivali, Mumbai who committed this case to the Sessions Court, Greater Mumbai, Dindoshi Sessions Division, Mumbai.

4. The learned Additional Sessions Judge framed the charge against the appellant-accused for the offences punishable under Section 376 and 342 of IPC. The accused pleaded not guilty and the trial was commenced. The prosecution machinery has examined in all 11 witnesses. Apart from that the prosecution agency has also pressed into service documentary evidence in the form of panchnamas, reports of chemical analyser and medical certificate of victim.

5. The learned Additional Sessions Judge after appreciating the evidence on record and considering the argument advanced on behalf of prosecution and the defence was pleased to hold the appellantaccused guilty for the offences punishable under Section 342 and 376 of IPC and sentenced to suffer rigorous imprisonment for life and slapped total fine of Rs.11,000/- with default stipulation.

6. Feeling aggrieved by the impugned judgment and order of conviction rendered by Additional Sessions Judge, Greater Mumbai (Sessions Division, Dindoshi), the appellant-accused has challenged the decision on various grounds by way of this appeal under Section 374 of Cr.P.C.

7. Heard Mr. M.M. Khokhawala, learned Counsel for the appellantaccused and Mr. H.J. Dedhia, learned APP for the State assisted by Shri Phatate, learned counsel for the victim, at length.

8. Mr.Khokhawala, learned Counsel for the appellant, invited our attention to the evidence of PW No.1-Nitin Shinde, police Constable, PW No.2-Tirumal Konar (Manager of the Guest House) and PW No.3 Khaliluddin Jaffar Hussain. He strenuously argued that spot of incident is not duly proved. It is seriously under cloud. He submitted that according to PW No.1 police Constable-Shinde, the place of incident is room situated in one guest house at Jogaiwadi. Whereas PW No.2- Tirumal Konar who is Manager of said guest house has stated name of guest house known as Jogaiwadi guest house at Dharavli. The extract of the guest house is placed on record by the prosecution vide Exhibit 17. It indicates that name of the guest house is quite different. The name of the guest house is Namdev Annaji Mhatre’s Jogaiwadi Guest House. Mr. Khokhawala then invited our attention that above said two witnesses have stated that incident of rape had taken place in Jogaiwadi guest house in room No.B/2 whereas extract of the guest house vide Exhibiti 17 speaks that it was room No.A/10 allegedly booked by the appellant-accused. Mr.Khokhawala, learned Counsel, therefore, vehemently submitted that the crime scene is not proved by the prosecution.

9. Mr. Khokhawala, learned Counsel for the appellant forcefully submitted that victim was allegedly a patient of schizophrenia, a mental disease. In order to substantiate such fact, the victim was not examined by the expert/Doctor/Psychiatrist. There is no medical evidence on record to support the case of prosecution. It is mere on the basis of surmises and conjectures on the basis of history given to the Doctor who examined the victim. The prosecution is claiming that victim is suffering from schizophrenia. He submitted that evidence of Police Constable-Shinde (PW No.1) speaks that he made enquiry about the incident and she narrated the incident which indicates that victim was in a stable position and fit state mind. As such there was no difficulty for the police to record the FIR at the hands of victim. He submitted that though victim was in a position to tender her evidence, her evidence was given up in a mid way, when her examination-in-chief was in progress. He submitted that medical evidence is not supporting to the prosecution case. No semen was detected in vaginal swab collected by the Doctor. C.A. report to that effect is in the negative. He submitted that the clothes of the victim were not found in torn condition. There is no iota of evidence to show that victim was subjected to sexual assault at the hands of appellant. The appellantaccused has been falsely implicated in a case of rape at the instance of two rickshaw drivers. The prosecution has even not examined mother or grand mother of the victim to corroborate alleged story of rape put forth by the prosecution. He, therefore, urged to allow the appeal.

10. Per contra, Mr. Dedhia, learned APP for the State supported the findings recorded by the learned Additional Sessions Judge. He submitted that the prosecution agency has examined all the relevant and material witnesses to prove the charge of rape against the appellantaccused. The victim was a patient of schizophrenia. She was not in a position to lodge the FIR. As such police constable was constrained to lodge the FIR on behalf of the State. The victim was examined by the Medical Officer. The medical evidence though not supporting to the prosecution case, other evidence on record cannot be discarded which focus light on the complicity of the appellant in the commission of crime. He submitted that in a case where victim is deaf and dumb and mentally ill, the charge of rape can be proved by other evidence which is available. He submitted that the appellant-accused was a rickshaw driver. He had taken victim to the guest house and committed rape. The victim disclosed the incident to two rickshaw drivers who had taken the victim girl and accused-appellant to the police Chowki and wherefrom they were brought to Malwani Police Station. This chain of sequence needs to be considered coupled with the evidence.

11. Mr. Dedhia, learned APP submitted that even though victim is not examined in this case, it is not in any way fatal to the prosecution case. He has placed his reliance in the case of State of Maharashtra v/s. Bandu @ Daulat[1]. Mr. Dedhia then invited our attention to the 1 (SC) Law Finder, Criminal Appeal No.1820/2017 statement of appellant-accused recorded by the Additional Session Judge under Section 313 of Cr.P.C. He submitted that appellantaccused has not offered any explanation about alleged false implication. To support the submissions, Mr.Dedhia placed his reliance in case of Chaman Lal v/s. State of Himachal Pradesh[2]. He submitted that there is no merit in the appeal.

12. Having regard to the argument advanced by Mr. Khokhawala, learned Counsel for the appellant-accused and learned APP Dedhia for the State-respondents, we have gone through the R & P of the Sessions trial. We have carefully assessed the oral evidence as well as documentary piece of evidence produced by the prosecution agency.

13. The prosecution agency has examined in all 11 witnesses, which can be described as under. Sr. No. Name Exhibit NO. 1 Nitin Vasant Shinde (PW-1) (Police Constable and first informant)

14. The appellant-accused was put on trial for the charge of offences punishable under Section 342 and 376 of IPC. The offence of rape is certainly serious and heinous. It is well settled position of law that testimony of a victim in case of sexual offence is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to her statement before acting upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the victim needs to be assessed carefully as a whole. The victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured victim.

15. It is equally well settled position of law that nature of evidence produced in a case of rape play crucial role. If evidence is reliable and inspires the confidence of the Court, the conviction can be based on the sole testimony of the victim. However, evidence of victim can never be taken as a gospel truth as held by the Apex Court in the case of Raja v/s. State of Karnataka[3]. The Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless it is corroborated with any material particulars. She is undoubtedly a competent witness under Section 118 of the Evidence Act, 1872 and her evidence must receive the same weight as is attached to an injured in case of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured Complainant or witness. The nature of evidence required to lay assurance to her testimony, obviously depends on the facts and circumstances of each case.

16. It is an admitted position that victim lady who was a major at the time of alleged incident is not examined before the trial Court. The criminal law was put in motion about alleged incident of rape on the 3 AIR 2016 SC 4930. basis of her narration before the police officials. PW No.1-Shinde (Police Constable and first informant), PW No.10-Manohar Harpude and PW No.11-Vasudev Jamdade have stated about mental illness of the victim. The police officers are not expert in order to determine mental condition of the victim. It requires special knowledge and skill and experts. As such it was very much necessary on the part of the investigation agency to get examined the victim from the expert/Doctor/Psychiatrist in order to have a clear picture whether the victim was suffering from schizophrenia, mental disease. Unfortunately, that important task was not performed by the investigation agency. Mere statement of police officer about mental condition of the victim is not any way sufficient to arrive at correct conclusion.