Bombay High Court
Badasha Jamal Mujawar And Ors. vs The State Of Maharashtra on 6 March, 1992
Equivalent citations: 1994(2)BOMCR735
JUDGMENT D.J. Moharir, J.
1. The appellants as original accused Nos. 1, 3 and 4 in Criminal Appeal No. 357 of 1984 and the appellant in Criminal Appeal No. 374 of 1984 as the original accused No. 2 were tried along with three other accused persons on various charges such as under sections 342, 354, 366, 366A and 376 and section 376 read with section 511 of the Indian Penal Code in Sessions Case No. 89 of 1983 decided by the learned Additional Sessions Judge, Satara. The appellant No. 1 Badasha as the accused No.1 was convicted under section 366 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default further rigorous imprisonment for three months. He was also convicted under section 354 of the Indian Penal Code and sentenced to rigorous imprisonment for six months. The two substantive sentences of imprisonment were directed to run concurrently. The appellant No. 2 as the original accused No. 3 and the appellant No. 3 as the original accused No.4 were both convicted of the offence under section 376 and sentenced to rigorous imprisonment for four years and a fine of Rs. 1000/-, in default rigorous imprisonment for six months. The appellant in Criminal Appeal No. 374 of 1984 as the original accused No.2 was convicted under section 366A of the Indian Penal Code and sentenced to rigorous imprisonment for two years and a fine of Rs. 500/-, in default rigorous imprisonment for two months. These appellants came to be acquitted of all the other remaining charges framed against them and the acquittal on those counts has not been challenged by the State in Appeal. Similarly, the acquittal of the original accused Nos. 5, 6 and 7 who were fully acquitted of all the charges, framed against them, has also not come to be challenged by the State.
2. The prosecution case which resulted in the trial of all these seven accused persons centres around a young virgin Jyoti, daughter of Chandrakant Pawar, a businessman residing with his family members in the L.I.C. colony at Satara. Jyoti, his daughter and the prosecutrix has been studying in a local girls school for sometime before the incident which occurred on the 11th and 12th of April, 1983 and culminated in her eventual (alleged) rescue on 13th April, 1983. All the seven accused persons are also residents of Satara. The accused No.1 Badashaha, it appears owns a house No. 144 in the Yadav Gopal Peth locality of Satara and he is also virtually the owner of house No. 526 known as the Mujawar Wada situate in the Mangalwar Peth the property actually standing in the name of one Smt. Shama Jamal Mujawar who treats the accused No. 1 as her son. At the material time in April 1983, some of the rooms in this house No. 526 had stood let out while some others had remained vacant or had been only recently vacated by the occupant tenants. The original accused Nos. 2 and 5 were two of such tenants in two rooms. They were alleged to be prostitutes. The accused No. 6 Hamida, a nurse by profession was employed in the Chaitanya Nursing Home of one Dr. Thoke. Yet another room in the house had been let out to Ahmed Ali Attar PW-9 a manufacturer and seller of joss-sticks. He had been staying away from Satara for some time on account of his business at another place called Kudal, but had apparently returned to Satara to be present at the said premises on the 13th April, 1983. The accused No. 1 Badashah is a married person and lives in the house No. 144 along with his wife and children.
3. Seventeen years old Jyoti was apparently a short tempered girl given to acting impulsively. There used to be frequent quarrels between herself and her mother, mostly over the insistence on the part of the mother to attend to domestic chores. She also used to feel frustrated at the strict regimen which was being required to be followed in her house. Prior to the incident dated 11th April, 1983, she had left the house on a few occasions in a fit of temper but had eventually returned home every time.
4. On the 11th April 1983, it is the specific prosecution case, the mother directed her, at about 8.00 p.m. to do the sweeping and cleaning of the floors of the house. Jyoti was not willing and this led to a quarrel between the mother and the daughter. Enraged by the scolding which she received, Jyoti once again left the house by about 9.00 or 9.30 p.m. and walked away. She went through several localities in the city and eventually came to the post office in the Yadav Gopal Peth area, tired, thirsty and hungry. She sat down on the steps of the post office building when an old gentleman anxiously inquired as to why she had been sitting there alone. Jyoti brushed him off by saying that she was quite alright and he need not bother. After a little rest, she resumed her walking and went by the Samartha Mandir Road, past the said Samartha Mandir building, in the direction of the Sweepers Colony. It was at that time that she met the accused No. 1 Badasha. He inquired as to who she was; inquired about her parents. Jyoti to hide her real identity, assumed the name of Swati Natekar and further represented that she was a resident of Pune. Thereupon the accused No. 1 Badasha took her to the said house No. 526. Further, as per the first information report of Jyoti recorded on the 13th April, 1983, upon which offence was registered and taken up for investigation, the further prosecution case is that the accused took her to that tenement in house No. 526 in which the accused No. 6, the nurse Hamidabai had been living. From that room she was again taken to another room in the south eastern corner of the building where the accused No. 1 sat down to chit-chat with her till about 2.00 a.m. He then took her back to the room of accused No. 6 Hamida and left. Jyoti slept in Hamida's room that night. The nurse, accused No. 6 Hamidabai offered tea and breakfast to her and by about 7.30 a.m. Hamidabai went away for work at the nursing home. Jyoti therefore remained for the rest of the day in another room in the said building, tenented by accused No. 2 Usha @ Suli. Accused No. 2 Suli apparently indulged, a prostitute as she was according to the prosecution, in an indecent kind of conversation with her and which Jyoti therefore resented. Suli's overtures to tempt Jyoti into acts of indecency having been stoutly rebuffed, accused No. 2 Suli had left her room at 4.00 p.m. locking Jyoti inside. The accused No. 2 returned to the room by about 8.00 p.m. During accused No.2's absence, the accused No. 1 is alleged to have entered the (locked) room and tried to misbehave with Jyoti.
5. It is also the prosecution case according to the first information report that the accused No. 2, who was not only herself a prostitute but also a procurer contacted accused Nos. 3 and 4, Kishore Jony and Bharat Raut respectively, and suggested that they might be able to sexually enjoy a nubile virgin in the girl Joyti-subject of course to payment of some consideration to her. The accused Nos. 3 and 4 agreed to pay Rs.150/- to her and with that agreement, the accused No. 2 returned to her room by about 8.00 p.m.; she asked Jyoti to freshen up, gave her a saree to wear - since Jyoti had been wearing only a maxi - and took her out of the room. An auto-rickshaw was engaged and the accused No. 2 and Jyoti proceeded in that auto-rickshaw driven by accused No. 7 Tajuddin Hamid Mulla, following a scooter which the accused Nos. 3 and 4 were riding. A room came to be engaged, No. 21, in the Rajatadri Hotel in the City. Jyoti was taken to that room by accused No. 2, with the accused Nos. 3 and 4 waiting inside. They pounced upon Jyoti and raped her. The accused Nos. 3 and 4, accompanied by accused No. 2 and Jyoti came out of the room No. 21 and left the hotel. It is the prosecution case that in the hotel Rajatadri, the accused No. 3 had registered himself under a false name. The arrival of the accused Nos. 3 and 4 in the hotel, their engaging the room No. 21 in the hotel after a talk with the Manager Vijay Kumar and thereafter their departure from the said room No. 21 accompanied by the two girls had been watched by the hotel boy Prasad Shetty P.W. 16.
6. The accused No. 2 Suli took Jyoti back to house No. 526, and the latter remained there until the next day in the morning. Later in the day some persons including her cousins came to the said house No. 526 accompanied by the police and they had rescued her.
7. The prosecution case is further that when Jyoti did not return home for quite sometime on the night of 11th April, 1983, her parents got worried and anxious. Inquiries in the neighbourhood and with some of the relatives in the town, showed that Jyoti was not with any of them; she could not be traced. The effort was resumed next day in the morning but it was equally unsuccessful. Therefore, a report was made by the Jyoti's cousin Rajendra Ghanshyam Pawar at the City Police Station, Satara that his cousin Jyoti had left the house at about 8.00 p.m. on the 11th April, 1983, had not returned home since then and was missing. A properly detailed description of Jyoti was also provided.
8. The fact that Jyoti was missing also came to be published in the local Marathi daily Aikya. It was this newspaper item to which the attention of Dr. Jayavant Thoke of the Chaitanya Nursing Home was drawn. The news item was actually shown to him by the nurse, accused No. 6 Hamida, who was in his employment. Accused No.6 Hamida therefore also told Dr. Thoke that the girl Jyoti mentioned in the news item as missing was in the house No. 526 of the accused No. 1 Badasha. Dr. Thoke tried to contact Jyoti's father on telephone but failed. He, therefore, went to the medical stores of which the proprietor is one Shri Zhad and requested the latter to take steps to inform Jyoti's parents. When Jyoti's parents were accordingly informed, the wheels were set in motion. Jyoti's cousin and some other persons all together went to the City Police Station and requested P.S.I. Patil P.W. 24 to provide police assistance for rescuing the girl from that house. P.S.I. Patil accordingly deputed two police constables Bankar P.W. 23 and Jadhav to go with these people. Jyoti was indeed found in that house, in a room which had been locked and the key to which was with the accused No. 2. It was only upon properly threatening her with legal action that the accused No. 2 had admitted about the presence of the girl in the building and which initially, she had attempted to deny. The accused No. 2 handed over a key to P.C. Bankar and he was shown the room. He opened the door of the room after using the key to unlock it. Jyoti was then brought out of the confinement and thus rescued.
9. Jyoti was then taken to the police station where her complaint was recorded and the instant offence was registered as C.R. No. 90 of 1983. The process of arresting the accused persons was quickly completed. It appears that some time on the same day the accused No. 1 Badasha's house No. 144 in the Yadav Gopal Peth was burnt down by fire and the report in this behalf also came to be lodged at the police station. An offence of arson vide C.R. No. 91 of 1983 had also come to be registered in that behalf.
10. So far as the present offence is concerned, the investigation was carried out by Police Inspector Patil P.W. 25 who first directed that the accused Nos. 2 and 5, Suli and Baby, 2respectively be forthwith produced before him. P.C. Bankar brought them from the House No. 2526. Taking the accused No. 2 Suli and the girl Jyoti with him, P.S. Patil went to the House No. 526 and inspected the same and he also got a sketch of the entire building drawn up. He next visited the hotel Rajatadri and inspected Room No. 21 there. He seized the Travellers Register, or Bill Book and two blood stained bed sheets from Room No. 2. The entry in the hotel register was said to be in the hand writing of accused No. 3. A specimen of his hand writing and signature was obtained under a proper panchanama. The disputed entry in the hotel register and the specimen writings and signatures were sent to the Government hand writing and finger prints experts for his opinion. Similarly, a test identification parade for identification of all these accused persons by Jyoti - as she had not been knowing them since before the incident was also held. He sent Jyoti as also the arrested accused No. 1 Badasha, accused No. 3 Kishore and accused No. 4 Bharat for medical examination, injury reports and blood examples. The articles of clothing on the person of these persons accused Nos. 3 and 4 as also the articles of clothing namely maxi, petti-coat and nicker worn by Jyoti at that time were also seized and taken into possession under proper panchanama. Statements of one Smt. Mandakini Shinde and her father Ganpat Bhosale, a watchman and also Ahamed Ali Mahammad Atar P.W. 9 as the neighbours were recorded; so also the statements of Dr. Thoke and the proprietor Shri Zhad of the medical stores who was instrumental to giving information as to the whereabouts of Jyoti to her father Shri Chandrakant Pawar. Statements of other witnesses pertaining to the movements and sighting of Jyoti on the night of 11th April, 1983 were also recorded. A Test Identification parade was also held for identification of the accused persons by Jyoti and Prasad Shetty the roomboy in Hotel Rajatadri. Upon eventual completion of the investigation, a charge-sheet came to be presented against the accused. The learned Chief Judicial Magistrate committed the case for trial by the Court of Sessions.
11. Accused No. 1 Badasha was charged with kidnapping Jyoti, a minor female with intent that she may be compelled to or forced or be seduced to illicit intercourse and that he had thereby committed an offence under section 366 of the Indian Penal Code. Accused No. 1 and accused No. 2 were further charged with wrongful confinement of Jyoti during the period between 11th April, 1983 and 13th April, 1983 in the House No. 526 at Satara and that they had thereby committed an offence under section 342 read with section 34 of the Indian Penal Code. The accused No. 5 Baby and accused No. 6 Hamida were charged with actively and intentionally aiding and assisting the accused Nos. 1 and 2 in the matter of confinment and putting restraint upon Jyoti, by keeping a watch and guard over Jyoti while she was kept in the said house No. 526. They had therefore committed an offence under section 342 read with section 114 of the Indian Penal Code. The accused No. 1 was further charged under section 376 read with section 511 of the Indian Penal Code with attempting to commit rape on Jyoti and also using criminal force to her, with the intention to outrage and knowing it to be likely that he would thereby outrage her modesty; that he had thereby committed an offence under section 376 read with section 511 I.P.C. and also under section 354 of the Indian Penal Code. The accused Nos. 3 and 4 Kishore and Bharat Raut were charged with the substantive offence of committing rape on Jyoti under section 376 of the Indian Penal Code. The accused Nos. 2, 3, 4 and 7 were further charged that they had induced Jyoti to go from house No. 526 in the Mangalwar Peth area to room No. 21 in the Rajatadri Hotel with intent that Joyti may be or knowing that she may be forced or seduced to illicit intercourse with accused No. 3 and 4; that amounted to an offence under section 366A of the Indian Penal Code. The accused Nos. 1, 3 and 4 were lastly charged that on the 11th April ,1983 and 12th April, 1983 they had seduced or indulged in immoral behaviour with Jyoti, a minor female and had thereby committed an offence under section 57 of the Bombay Childrean Act, 1948.
12. All the seven accused persons pleaded not guilty. The Accused No. 1 submitted that his House No. 144 had been set fire and burnt down on 13-4-1983. When his (foster) mother Shantabai went to report the matter, the present charge was falsely cooked up against him. The accused No. 2 also pleaded that accused No. 1 Badasha had been falsely involved and along with him she herself also because she was a tenant in that House No. 526. No specific defence was raised by accused No. 3 and 4; it was only a denial simplicitor. Upon trial the accused Nos. 5, 6 and 7 were acquitted of each and every charge framed against them while the accused Nos. 1, 2, 3 and 4 came to be convicted of the several offences as above stated and sentenced to various terms of imprisonments.
13. The accused Nos. 1, 3 and 4 jointly and the accused No. 2 by a separate appeal have challenged the conviction and sentences as awarded. I may mention here that at the hearing of the appeal as filed by the accused No. 2 Suli she did not herself remain present though on bail and her learned counsel Shri Jadhav did not also appear though the hearing of this appeal has been a protracted one having commenced from Tuesday, the 3rd March, 1992. I may however, readily note that a consideration of the case of this accused No. 2 Suli is closely knit into the fabric of the case against accused Nos. 3 and 4. Her case has been, therefore, to be and is accordingly dealt with in all the detail both by learned counsel Smt. Bhonsale appearing for the appellants accused Nos. 1, 3 and 4 as also the learned Additional Public Prosecutor Shri Raje for the State. The arguments advanced have thus substantially covered the grounds on the memo of appeal filed by accused No. 2.
14. Broadly stated the submissions of learned Counsel Smt. Bhonsale for the appellants are that so far as the appellant accused No. 1 Badshaha is concerned, the charge under section 366 of the Indian Penal Code has not at all been brought home to him and further that the prosecution completely failed to establish any nexus between the accused No. 1 and the accused No. 2 as also between the accused No. 1 and the accused No. 6 Hamida the last named being the acquitted accused. She has also challenged the test identification parade conducted by the Tahasildar and Special Executive Magistrate as being an entirely a farce inasmuchas a careful look and observation of the accused persons to be identified had already come to be facilitated by the police. There were several other defects proceduraly and also illegalities in the manner in which the test identification has been conducted. It was also contended that so far as the accused Nos. 3 and 4, Kishor Jony and Bharat Raut respectively are concerned, the offence of rape cannot be held to have been established beyond reasonable doubt either upon the testimony of Jyoti as the victim herself or upon the medical examination of Jyoti as also the accused Nos. 3 and 4 themselves, nor upon a consideration of the report of the chemical analyser, on the various articles of clothings submitted to him as being the articles of clothing and wearing apparels on the person of prosecutrix Jyoti and the accused Nos. 3 and 4 as the alleged ravishers, nor the bed-sheets which are said to have been seized from room No. 21 in the hotel Rajatadri as being stained with blood of the semen of either one of these accused persons. The other oral evidence, as Smt. Bhosale asserted, is also entirely unconvincing, unreliable and insufficient to arrive at a finding of the guilt of these appellants on any of the counts. The judgment, Smt. Bhosale further contended proceeds to rely upon a very large number of assumptions and what are distinctively conjectures as differentiated from inferences to be, or possible to be drawn from the evidence on record. The judgment, as she therefore urges, deserves to be set aside both on the question of the conviction as also the sentences awarded.
15. It would, therefore, be appropriate to proceed to consider the case of the accused No. 1 as one which is properly separable against the case of accused Nos. 2, 3 and 4 taken together in as much as the accused No. 2 is alleged to have procured the young virgin Jyoti for the accused Nos. 3 and 4 to ravish. It is also to be appreciated further that according to the learned Additional Public Prosecutor Shri Raje though the case and evidence against the accused No. 1 Badshaha can be so separately considered, may be for the purpose of convenience, it is all the same not severable from the case and the charge against the appellants accused Nos. 2, 3 and 4. This, for the reason that according to him, there is a nexus between the accused Nos. 1 and 2 as it is between accused Nos. 2 and the accused Nos. 3 and 4. However, upon a perusal of the evidence it would still appear both feasible and advisable to consider the evidence against the appellant accused No. 1 Badshaha in as much as the charge under section 366 and under section 354 of the Indian Penal Code against him refers to the period of time between 11th April, 1983 at 10.00 p.m. onwards till sometime after mid-day on the 12th April, 1983. The charge of a rape committed by accused Nos. 3 and 4 refers to the movements and activities of accused Nos. 2, 3 and 4 sometime in the evening and more precisely after, 8.00 p.m. on the 12th of April, 1983 when Jyoti was taken to the hotel Rajatadri by the accused No. 2 for enabling the accused Nos. 3 and 4 to commit rape upon her. It was also tried to be suggested that there is evidence on record to show that the accused No. 2 Suli had met the accused No. 3 and 4 in the afternoon or evening on 12-4-1983 and had struck a deal with them; that these two accused No. 3 and 4 had paid Rs. 150 to her for procuring the girl Jyoti for them.
16. Proceeding to deal with the evidence against accused No. 1 Badshaha therefore, the primary is of course of the girl Jyoti P.W. 12. She has deposed that as a result of a quarrel with her mother in the evening on 11th April, 1983. The mother angry with her, asked her to get out of the house. In a fit of rage she therefore walked out of the parental home in the L.I.C. colony. She had apparently left without taking her food also. She was wearing a maxi and under it a peti-coat and an under-wear. She walked and went by various roads and passed through various localities in the town until she was tired and exhausted. It was therefore, that at about 10.00 p.m. or so she sat down on the steps of the post office building in the Yadav Gopal Peth. She makes one thing very sure that though she had walked all this distance, of approximately three kms. or so and though she was feeling very tired and exhausted, she still did not have any kind of inclination to return home. This is clear from her version that while she was so sitting on the steps of the post office building, an old gentleman came upto her finding her sitting on the steps all alone at that late hour of the evening. In her first information report she therefore stated that the said gentleman did not inquire as to why she was sitting there and she merely replied to him that it was quite normal suggestion over that he did not worry about it. In her deposition before the Court she states that this gentleman left when she replied to his query that she had been only casually sitting. She had thereafter got up and started walking by the way. Before proceeding to consider as to what she did or what happened it would be appropriate to refer to the testimony of the yet another witness Pratap Gole PW 18. His house is at a distance of about 100 steps from the post office in Yadav Gopal Peth. He states that at about 9.00 p.m. or 9.30 p.m. he finished his meals and came to what is known as the Jamanabai Boarding Chowk. There he met his friend Laxman Joshi. Both of them chit-chatted standing in the Chowk. At that time one person by name Jambharkar came upto them and informed them that a young girl had been sitting alone on the steps of the post office for quite a long time, Pratap, accompanied by the friend Joshi had then went upto the girl. They enquired as to why she was sitting; received a reply that she was casually sitting there and finally Pratap states that the friend Laxman Joshi did advise her not to sit there and go home. According to Pratap, the girl had then walked away from there. Now it is therefore important to note that the fact that Pratap Gole and Laxman Joshi had met Jyoti that evening does not find any reference whatsoever either in the first information report or for that matter even in her deposition before the trial Court. Pratap Gole apparently suggested that he and Joshi were to go to attend a Bhajan programme at the house of one Shri Panaskar. He knew the accused No. 1 Badshaha also used to attend the Bhajan recitals at Panaskar's. Pratap Gole's evidence is, therefore, that while the two of them were talking on the way and intended to go to the house of Panaskar for Bhajan, the accused No. 1 Badshaha came near them. He gathered from their talk that they intended to go to the house of Panaskar for the bhajan programme. Therefore, Badshaha remarked that he would also attend the programme; that he would go home first to change into a pair of trousers from a lungi which he was wearing. Pratap states that he had also talked about the girl in the presence of accused No. 1 Badshah. According to this witness, the girl who had been sitting on the stair case had however gone away by then. Pratap has stated that the accused No. 1 Badshah had been advised by Laxman Joshi not to go after the girl. Even so, he says that accused No. 1 Badshah who had gone home, promising to return for attending Bhajan, did not really return though they waited for him in the square for about 10-15 minutes. Rather strangely, instead of going to Panaskar for attending the Bhajan, each of them went home. It is rather difficult to appreciate this evidence. It is clearly artificial. This version of Pratap is obviously intended to show the accused No. 1 as being a lecher to incriminate him. Yet this evidence adverse to him has not been put to the accused in his examination under section 313 Cr. P.C. The witness's version that his friend Joshi had asked Badshah not to go behind the girl becomes even more patently concocted; it is noted that when his statement was recorded during investigation, Pratap Gole had not disclosed about this warning given to accused No. 1 Badshah by the friend Laxman Joshi. Whether any occasion would arise either for Pratap Gole or Laxman Joshi to say anything to the accused No. 1 Badshah concerning to the girl Jyoti becomes further doubtful when Pratap admits that when Badshah came to meet them in the chowk, the girl was not there, she had already left and disappared. That therefore, further shows the artificiality in this evidence led by the prosecution. It is rather strange that inspite of this evidence given by Pratap to support the prosecution, he was yet declared hostile and permission to cross-examine him was sought by the prosecution. It is stranger still that the permission was granted also. There appeared nothing in the testimony of the witness which was inconsistent with and damaging to the prosecution case -except of course that he admitted accused No. 1 to have become his friend because the accused No. 1 Badshah had been attending the Bhajan recitals at the house of Panaskar. That fact of mere friendship, it will be appreciated, had not therefore actually prevented the witness from testifying against the accused No. 1, in particular about the fact of a warning given to the accused No. 1 not to go after the girl, by the other friend Laxman Joshi. Whether declared hotle or not, the evidence of Pratap Gole could hardly be of any real assistance to the prosecution. It has to be rejected.
17. It is Jyoti's evidence that after she got up from the steps of the post office, she walked in the direction of the Sweepers' colony, passed the Samarth Mandir by the road in front of it. She had gone some distance ahead of the Samarth Mandir when the accused No. 1 came upto her and talked. He inquired as to who she was, her name, address, etc. Jyoti falsely gave her name to be Swati Natekar residing at Pune. She says that she also represented to him that she had been looking for the house of one Shri Katwe a relative. The accused No.1 then readily told her that he know that house and that he would show it to her. On that representation, she says she started walking with him. But he actually took her to the house No. 526. That she represented to him that she wanted to go to the house of the relative by name Katwe is again a fact which appears only in her evidence before the Court for the first time and not in the first information report Exhibit 54. A lapse of memory momentarily a state of excitement and agitated mind are the reasons which the learned Public Prosecutor puts forward for these and other material omissions in the first information report to which I will be adverting hereafter. However, at the same time it will also be appreciated that the complaint which was recorded of her, could hardly be called a matter of fact one - much less a cryptic one. In fact it is difficult for any material omission to be arguable and excusable by lapse of memory or inadvertant omissions as such. Jyoti was stated that she gave information about everything that happened.
18. The two counts on which the accused No. 1 Badshah has come to be convicted are section 366 and section 354 of the Indian Penal Code. Dealing therefore with the first charge, namely the one under section 366 it is to be seen in the first instance as to whether the prosecution case that the accused No. 1 Badshah took the girl Jyoti to the house No. 526 with the intention of himself seducing her or forcing her to illicit intercourse with himself. It is also to be appreciated at this time that the charge of wrongful confinement under section 342 of the Indian Penal Code has been held by the trial Court as not proved against the accused No. 1. Looking to the generality of the case that the accused No.1 Badshah having met the girl Jyoti while she was walking on the road on the night of 11th April and took her to his house No. 526, it would have to follow as something inevitable in sustaining the charge under section 366 of the Indian Penal Code that she should also be alleged and proved to have been wrongfully confined in the said house until rescued some time by mid-day on the 13th of February. Therefore the acquittal of the accused No. 1 with reference to the charge under section 342 of the Indian Penal Code must itself be taken to be a circumstance which would not be conducive to proving the charge under section 366 of the Indian Penal Code. This charge under section 366 of the Indian Penal Code is intended to be proved upon the evidence of Jyoti P.W. 12, Mandakini Shinde P.W. 14 and Ahmed Ali Attar P.W. 2 in particular and the evidence of the police constable Bankar P.W. 23 and others generally. Jyoti has stated that when she had met the accused No. 1, he inquired about her name and she proceeded to assume a false name Swati Natekar. The gist of the cross-examination of Jyoti on this fact of assuming false name and the totality of the circumstances which prevailed during her presence in the house No. 526 from the 11th to the 13th of April very clearly establishes that in the first instance having left her house in the evening on 11th April, 1983 in a fit of temper, she did not definitely wish to return to the house. At one place she has stated that she did not want to return to the house atleast that night. Therefore, her representation to the accused No. 1, that her name was Swati Natekar must also be assumed to have accompanied a further represenatation that she did not belong to Satara but to Pune. In these circumstances it would be natural for the accused No. 1 to consider giving her some shelter for the night. Jyoti would appear to have imporved upon this also. Her improvement during the cross-examination is that she had represented to the accused No. 1 that she wanted to go to the house of a near relative, maternal aunt by name Katwe. The accused held out an assurance that he would see that she reaches that house next day in the morning. Any reference whatsoever to Jyoti's intention to go to the house of relative by name Katwe does not find any mention in the First Information Report Exh. 54. This is an omission which actually therefore indicates absence of any desire on her part to go to the parental home but even to the house of any other relative for that matter. It also appears from her cross-examination, though that again is not a part of the first information report, that she had also gone to the house of one Shri Modak with a request for a glass of water and inquiries had been made by the inmates of that house also about her name, place of residence, etc. If it was her desire to go to the house of the relative by name Katwe, she would have ordinarily told those inmates that she wanted to go to the house of Katwe but had failed to find her way to that house . Even in the first information report when she says that the accused No. 1 met her, she had neither made a request for being taken home or made reference to the name of any of the several relatives which she has at Satara. Therefore, she definitely wanted to be away from her home and the relatives both. In that view, her readily agreeing to accompany accused No. 1 Badshah, to wherever she would be taken, presumably for shelter during the night, would be clear.
19. Jyoti, it may therefore be accepted as true, accompanied the accused No. 1 to the house No. 526. A plan of this house is placed on record at Exhibit 25. It has been described as Mujawar Wada. It appears to be a fairly specious building consisting of at least five to six rooms. At the material time, the entire building was not in occupation. The accused No. 2 Usha @ Suli the accused No. 5 Baby, the witness Ahmed Ali Attar P.W.-9 and the accused No. 6 Hamidabai were living in different rooms in this Wada as tenants. Some rooms were still vacant. The room in the south-eastern corner of the building as seen from the evidence of the witness Attar used to be ocupied by a tenant by name Pavte. According to Attar P.W. 9 Pavte had left the said southern room as his tenament, about 20-22 days before this incident. It is, therefore, understandable that this room should be kept in a locked condition by the landlord.
20. On reaching the house No. 526 it is therefore very important to note that the accused No. 1 did not take the girl Jyoti to one or the other two or three rooms vacant in the house. It is very clearly her evidence that she was straightaway taken to the room No. 1 in which nurse Hamidabai was living Hamidabai as accused No. 6 has come to be acquitted by the trial Court. That apart, consideration of the evidence of her employer Dr. Thoke P.W. 20 would show that Hamidabai had been in his service as a nurse in the Chaitanya Nursing Home run by him. She has been in his service for quite a long time. It is also seen from his evidence that it was the accused No. 6 who had shown to him the issue of the local Marathi daily Aikya which contained a news about kidnapping of this girl Jyoti. It was she who has also told him that the girl Jyoti mentioned in the news item was in the wada of the accused No. 1 Badashah. This is therefore, very clearly a piece of conduct inconsistent with the prosecution case that there was any alliance between the accused No. 1 and accused No. 6. If there was any, accused No. 6 would have actually kept this a matter of secret. She would never have told her employer Dr. Thoke about it. If therefore it was in the tenement of such a person that the accused No. 1 Badshah kept the girl Jyoti that night, that becomes inconsistent with the prosecution case that the accused No. 1 intended to misbehave with her to seduce or subject her to forcible and illicit sexual intercourse. Jyoti's evidence also shows that on the next day in the morning after she had slept in the accused No. 6's room, the said accused No. 6 Hamidabai inspite of being in a hurry to go on duty earlier in the morning by 7.30 a.m., had made for Jyoti a cup of tea and had thereafter also gave to her breakfast also. She had thereafter gone away for work. It is therefore to be noted that it is not now the evidence of Jyoti that the accused No. 6 locked her in her own room or that she forced Jyoti to go and remain or stay in the nearby room in which the accused No. 2 Suli was living. After the accused No. 6 went for work, Jyoti was, therefore, absolutely free to go anywhere as it appears. There was no compulsion on her at the instance of Hamidabai nor any at the instance of the accused No. 1 for until about 12.00 o'clock in the day on the 12th of April, Jyoti does not make any reference even to having seen the accused No. 1 in the said building. Even so, Jyoti states that she remained for the rest of the day in the room in which the accused No. 2 lives. This was obviously voluntarily done by her. It is difficult to appreciate, with the description about the location of the house, a road passing by the house, there being traffic on this road throughout the day and night also, and there being absence of any one to prevent Jyoti's leaving the house in the morning on 12th , her continuing to stay in the said building house No. 526, has to be inferred as being only a matter of her own choice and will. Actually one finds that she has admitted so in almost unequivocal terms.
"I did not want to return to the house and was also uncertain where I should go. It is true that for the same reason I had assumed the false name as Swati Natekar with a false address."
At another stage she says :-
".........I was in the predicament and I could not return to my house. Therefore, I decided to stay there."
21. It is Jyoti's evidence that after the departure of accused No. 6 Hamida when she went to the room in which accused No. 2 Suli lives, she spent practically the whole of the day in that room. Bungling severally in stating about the particular house of the day on which the secondary phases in the incident occured, she appears to say that she sat chit-chatting with the accused No. 2 and realised then from her talk that she was not a decent kind of woman; that the accused No. 2 was making indecent suggestions to her also. Even so she continued to stay in the room - that is, with all the opportunity for her to leave the place and walk on the road, the town of Satara not being entirely foreign to her and it being day time, quite safe for her also. She says that sometime after mid-day, the accused No. 1 came into that room and he and the accused No. 2 then indulged in indecent behaviour right in her presence which she detested. Sometime thereafter the accused No. 1 and 2 left the room. She does not say that at this time the room was locked, in the first information report Exhibit 54 though she deposes so before the Court. She has also stated that after some hours the accused No. 1 came into the room, by removing the lock on the door and tried to behave indecently with her. However, this was brought to a sudden end by reason of the arrival of some person to meet the accused No. 1. The accused No. 1 had gone out and away with that person but not before he had also locked the room from outside. I have mentioned about the sharp differences in her narration about the respective house of the day at which these phases occurred. According to Jyoti, the accused No. 2 had alone gone out of the room sometime after mid-day. She had not mentioned the fact about the indecent behaviour in which the accused No. 1 and 2 indulged in her presence in the F.I.R. Exhibit 54. In fact there is no reference to the arrival of the accused No. 1 until after the accused No. 2 had gone away after locking her inside the room. If Jyoti is to be believed when she says that she saw the accused Nos. 1 and 2 indulging in an indecent kind of behaviour, it being day time, it is difficut to conceive that she would not beome aware of the danger to herself in continuing to stay in that room thereafter. She would definitely make an effort to leave the room and would also resist if there was any attempt on the part of the accused No. 2 to lock her inside the room. That she does not appear to have done. It would be, in view of what she describes as the necking between the accused Nos. 1 and 2 inconceivable that she would still continue to harbour her intention of not returning to the parental home or of not even moving outside the house in her own intrest. She is certainly not an unintelligent and naive country girl. She was studying in the 10th standard at that time. All this militates against her assertion that she still wanted to remain away from her house. That she would not want to go to any relatives also and had therefore decided to continue in accused No. 2 room becomes rather hard a submission to swallow.
22. According to the prosecution, it is because Jyoti says so, the accused No. 1 came to the room sometime in the afternoon, unlocked the door, tried to make impoper advances towards her and left her again in the room after locking the same. All this, it is argued for the appellants, would be possible only if the accused No. 1 were supplied with the key of the lock which accused No. 2 had put on her room. The investigation does not appear to have been directed from this angle. For the only key which in the course of the evidence is disclosed to have been seized by the police is the one which was handed over to police constable Bankar by the accused No. 2. There is no other key which was seized from the accused No. 1. Nor is there any evidence that there was any contact between the accused No. 1 and the accused No. 2 and if so whether it has taken place to enable him to go to the room of accused No. 2 armed with the key to that lock. The absence of any such alliance or intimacy between the accused No. 1 and 2 comes to be indicated, to the detriment of the prosecution, in the evidence of police constable Bankar P.W. 3 . He says with reference to the locking of the southern room that he inquired from accused No. 2 as to why she had locked that room. The reply which the accused No. 2 gave to him was, in his words :-
"I had asked her way she had locked the room. She told me that the room belonged to Badshaha and he had given her a key and so she had again locked it lest Badshaha should say anything."
This very clearly show that there was some fear which the accused No. 2 harboured in respect of the accused No. 1, fear in regard to his coming to know that she had made use of that vacant room of which he had given the key to her. On the very basis of this statement it was tried to be argued by the learned Additional Public Prosecutor that the fact that the accused No. 1 had given a key to accused No. 2 to the southern room in the house itself showed the unholy alliance between them. Now so according to me, if the reference is properly made to the evidence of the witness Attar P.W. 9. Apparently the presence of the accused No. 2 as a tenant in the room of house No. 526 was quite a stable one than the other tenants. Attar has stated that since he used to be in and out of the town on account of his business, and used to return to his tenement in the house at odd hours also, he had made it a practice to keep a pot for milk which he would require on his return.
He says :-
" I also used to ask Sulabai to take milk for me on the dates on which I was to return Satara."
Similarly, therefore, it is not inconceivable that the accused No. 1 Badshah since he was not himself living in the house No. 526, might have been keeping the key on the vacant portion of the building with this accused No. 2. Not much can therefore be gained by advancing this submission.
23. The learned Additional Public Prosecutor pointed to the deposition of Attar P.W. 9. Attar stated that when on his return to Satara, rather opportunelly at 10a.m. on 13-4-1983 he found the accused No. 2 scurrying between her room and the southern room (in which the tenant Pavte used to live). He became curious. He followed her to that room and found the girl Jyoti in that room. On enquiry the accused No. 2 told him that Badshah had brought that girl and therefore remarked that this was not proper on their part (their part meaning on the part of accused Nos. 1 and accused No. 2). This would no doubt appear to be an incriminating circumstance. But the point is that the authorship of the accusation that accused No. 1 has brought the girl to that house is not one made by the witness but a narration made to him by the accused No. 2. And that narration is incapable of being dislodged by the cross-examination of the accused No. 2 and, therefore, inadmissible in evidence. Similarly, the Additional Public Prosecutor also referred to the evidence of Dr. Thoke P.W. 26. He deposed that Hamida told him with reference to the news item in the newspaper that the girl reported missing was detained by Badshah in house No. 526.The word detention used by the witness is therefore necessarily incriminating to the accused No. 1. The witness also denied that Hamida had merely told him that the girl was in the house No. 526 of Badshah and that she had not described Jyoti's presence in that house being by way of detention as such. That denial notwithstanding, it is necessary to refer to the examination of the accused No. 6 Hamida under section 313 of the Criminal Procedure Code. When she was apprised that Dr. Thoke had stated about her telling him about the detention of the girl in house No. 526, she came out with a reply that she had never used the word detained but merely mentioned that the girl was in that house. Both these statements, the version of the accused No. 2 as narrated by the witness Attar P.W. 9 and the version of accused No. 6 as narrated by Thoke P.W. 20 being beyond any right of cross-examination, cannot be considered as evidence advere to the accused No. 1.
24. Some more support was also sought to be derived to such deliberate confinement of Jyoti by the accused No. 1, in the house No. 526. This was with reference to the testimony of Mandakini Shinde P.W. 14. She had stated that her house is quite close to the house No. 526. Presumably referring to the night of 11th April, 1983, she says that she had been sitting in the courtyard alongwith her son at about 10.00 p.m. when she saw the accused No. 1 coming from the direction of the Samarth Mandir accompanied by a girl and going into his house. She had seen the girl wearing a maxi in the light of fluorescent tube light on the street pole. She again saw the same girl sometime 18 or 20 days later when shown to her by the police. She also says that she had read the newspaper report about the girl's abduction in the issue dated 13-4-83. She had also seen the arrival of the people in front of the house No. 526. She had gone there to see what the matter was. Even if accepted, this would not be of any real assistance to the prosecution when it is not her evidence that she saw the girl being taken into the house No. 526 by force as such or inspite of any protest as such on the girl's part. What is however more important is that she admits that at that time on the 13th April when she went in front of the house No. 526 and also saw the police, she did not tell any police man or any other person that she had seen the accused No. 1 entering the house along with this girl on the night of 11th April. Mandakini's therefore, appears to be only a got up piece of evidence for buttressing the prosecution case more significantly for the reason that the girl was shown to her only after three weeks after the incident. The evidence as discussed so far will therefore show that after having taken Jyoti to the house No. 526 and delivered her in the custody of the accused No. 6 Hamidabai, the accused No. 1 does not appear to have had anything to do with the girl thereafter. As noted, the accused No. 1 is not proved to have visited the house in the moring of 12th of April. Jyoti's evidence that the accused No. 1 came to the accused No. 2's room and that they indulged in indecent behaviour in her presenc in that room is something which is not believable more for the reason that there is no reference to it in the first information report Exhibit 54 and inspite of the fact that Jyoti has admitted that her complaint to the police was a detailed one giving them all the information about what had happened till the 13th. About Jyoti's version that the accused No. 1 had alone entered the room in the absence of the accused No. 2, that he had tried to misbehave with her in that room, that is a plece of evidence which cannot be accepted unless it is proved that the accused No. 2 had handed the key to the lock of her room to the accused No. 1. Therefore, upto the evening of the 12th April, any evil intention harboured by the accused No, 1 towards this girl Jyoti cannot be accepted as a fact.
25. The prosection story is that on the evening of 12th April, 1983 the accused No. 2 took Jyoti to hotel Rajatadri by about 8 p.m. or so. The accused No. 2 had taken Jyoti to room No. 21 in that hotel. The accused Nos. 3 and 4 were waiting there. They raped this girl and thereafter the accused No. 2 brought her back to the house No. 526. This was by about 9.00 or 10.00 p.m. From that time onwards till Jyoti was rescued on the next day at 12 O'Clock there was a conspicuous absence of the evidence about accused No. 1 being trying to contact Jyoti in that house which narrration is a further and clear indication that the accused No. 1 had nothing to do with the girl except that he brought her to the house No. 526 when he found her going all alone by the Road at night. This could not have been anything except an act of piety and sympathy. The argument which the learned Public Prosecutor advanced was that if the accused No. 1 was so innocent in his intentions then why was it that he did not take the girl to his house No. 144 where he was living and why did he choose to keep her in the house No. 526. In my opinion this becomes an admitted position also that the accused No. 1 had not confined the girl to any of the vacant premises in house No. 526 but had actually put her in charge of accused No. 6, Hamida obviously because she was a decent person. If as suggested, the accused No. 1 did have a key to the lock which was on the southern room which had been vacated by the tenant Pavte then to fulfil his evil design he could have as well kept the girl in that vacant room as soon as he took her there. As for the accused No. 1's not taking the girl to his house, there may be umpteen reasons for not doing so. The paucity of accommodation, a large number of inmates or for that matter even some kind of an annoyance to be expected from his own wife. The question was therefore of giving some shelter to the girl since she claimed to be from Pune. That argument cannot, therefore, in my opinion, be of much avail to urge that the accused No. 1 harboured any further intention towards the girl i.e. he intended to seduce her or to force her to illicit intercourse with himself. It is in that view that the charge under section 366 as brought against the accused No. 1 cannot be found supported and the findings of the Additional Sessions Judge in that behalf become unsustainable.
26. As to the charge under section 354 of the Indian Penal Code also, more or less the very same reasoning must apply to reject the charge that the accused had tried to use criminal force to this woman with intention to or knowledge that he was thereby likely to outrage her modesty. What is pivotal in the appreciation of evidence in this behalf is the one single fact that the accused No. 1 had kept the girl Jyoti in the company of the accused No. 6 Hamidabai and thereafter there was no really any evidence of his having contacted the girl at any time much less attempting to get indecent with her.
27. The learned Public Prosecutor has however argued that the testimony of the girl Jyoti on oath apart, the first information report Exhibit 54 must be given due weight for holding that it successfully corroborates her version. That brings me to the consideration of how reliable is the first information report Exhibit 54. For the purpose, a beginning must be made at the very beginning. The evidence is that upon receiving information telephonically from the witness Zad P.W. 19, the relatives of Jyoti probably accompanied by some others rushed to the city police station of Satara. They met PSI Patil P.W. 24 and informed him that Jyoti was reported to be in the house No. 526 of accused No. 1 Badshah.
28. Coming back to the first information report Exhibit 54 the evidence is that Jyoti was found in the vacant Southern room forming part of house No. 526; that the said room was under a lock and was opened by police constable Banker P.W. 23 with a key provided by accused No. 2 Suli. It is Bankar's evidence that it was not until the accused No. 2 was warned of serious legal consequences and only then that she had agreed to provide the key to that lock. (She had admitted the presence of a girl in that house). With that key the lock was opened and the girl Jyoti was found inside. It may be mentioned here only that at the time of the panchanama and inspection of this house (the lock as such has been seized, the key thereof does not appear to have been seized either as per the police constable Bankar or the accused No. 2 Suli) and no explanation in that behalf was also offered. I will be dealing with this aspect in some greater details at a later stage. She was taken home in her family car which was parked on the road outside. Now the important point before considering the contents of the F.I.R. is whether really the girl was found in the said southern room at all. A mere scrutiny of the evidence of Jyoti herself would show that she had been kept in the room of either the accused No. 6 Hamida or remained in the room of the accused No. 2 Suli after the incident at the hotel Rajtadri at night. It was only later that the girl Jyoti would appear to have wriggled out to come to a position by way of establishing her presence in the south-eastern corner vacant room from where she was rescued. Jyoti's evidence is that after returning from the Hotel Rajtadri she had first gone to the room of accused No. 2 with her. Sometime in the middle of the night, the accused No. 2 had sent her to the room of the accused No. 6 through the rear door and had closed the door. The rest of the night Jyoti says, she spent in the room of the accused No. 6 and then at about 7.30 a.m. the accused No. 2 again took her through the front room, that is, the south-eastern corner room and had locked her up there. This part of the story, it will be appreciated, though it must have been quite fresh in Jyoti's mind when her complaint was recorded, does not yet appear and carry and mention in the complaint Exhibit 54.
29. Before coming to the question raised about the admissibility at all of this complaint Exh. 54 as a first information report, on an assumption that it is so admissible, it would yet be proper as also pertinent to note how, at the stage of her deposition the contents have been severally and materially improved upon by Jyoti. She stated that she had wanted to go to her relative by name Katwe. When the accused No. 1 met her she told him so and the latter had replied that he would show the house to her as he knew the same. It was also only for that single night between 11th and 12th April that Jyoti stated she wanted to be away from home. In particular, it is this last sentence which is relied on by the learned Additional Public Prosecutor to argue that Jyoti had never wanted to leave the parental home for good is very significantly found absent. The omission has been admitted by Jyoti. She also admitted that she had omitted to mention that she had wanted to go to the house of Katwe or had said so to the accused No. 1 and that the latter had then promised to take her thereto. Similarly she has introduced the story about having visiting the house of one Shri Modak after leaving the post office and before meeting the accused No. 1 Badshah. This is also not narrated in the first information report. It is her evidence that on reaching the house No. 526 it was first to the South Eastern corner room that the accused had taken her, that they had chit-chatted sitting in this room till about 2.00 a.m. and that it was thereafter that he took her to the room of Hamidabai. In the first information report how ever the story narrated is significantly the converse. I have already also noted that during her stay in the house No. 526 on the 12th April, she stated that the accused No. 1 came to the room of the accused No. 2 and that accused Nos. 1 and 2 had then indulged in an indecent kind of behaviour which upset her and because of which she wanted to leave the room but was not allowed to do so and further more the two of them - the accused Nos. 1 and 2 - had together left the room, locking her inside. All this, Jyoti again admits is a matter of omission entirely from the first information report. The description of the accused Nos. 3 and 4, relating to the charge of rape, was given by her extremely vaguely. It is also to be noted that according to her, when she was taken to room No. 21 in the hotel Rajatadri, the lights in that room were so dim that she had not been able to observe carefully the figure of the either of the accused Nos. 3 or 4 and had yet, upon accused Nos. 3 and 4 being later shown to her, identified them as the culprits. She stated that when the accused No. 2 asked her to get dressed in a saree and took her out on the pretext of going out for a stroll, Suli had, before they boarded the auto-rickshaw, threatened her with the words that she should not raise any hue and cry for help, that all the people in the locality were quite well known to her, that they would be of assistance only to her and not to Jyoti. All this finds no mention whatsoever in the first information report. In fact she admitted that she had not mentioned this even in the supplementary written statement which was later on recorded - some 18 or 19 days after the incident. She stated that after returning to the house No. 526 from hotel Rajatadri where she has been raped by accused Nos. 3 and 4, the accused No. 2 had washed her petti coat. This again finds no mention in the first information report. As the learned Additional Public Prosecutor points out she did state in the first information report that the petti coat was in a washed condition when she produced it before the police when her first information report was recorded. About this later part also there is much to be observed as an interesting improvement because the question which could arise is whether in fact complaint has come to be recorded at 12.30 noon and whether at that time she had produced these articles of clothing. It would bear mention here that in report of the chemical analyser to whom amongst others this petti coat was one of the articles sent, the petti-coat is not described as being in the washed condition though two other articles are so described. She deposed that at night between 12th and 13th while she was sleeping in the room of the accused No. 2, some persons appear to have knocked on the door of accused No. 2's room and it was, therefore, that the accused No. 2 packed her off into the room of accused No. 6. This material fact also finds no mention in the first information report. Referring to the evidence of others, witness Pratap Gore P.W. 16 has stated that he and his friend Laxman Joshi had met and talked to the girl Jyoti on the steps of the post office building - upon being informed by one Mr. Jambharkar that he had seen a girl sitting alone there. About having met Pratap Gole and Laxman Joshi, there is no mention in this first information report. Nor even in the testimony of Jyoti as it is rendered at the trial.
30. It is, therefore, in the light of this very material, being germane to the prosecution case, being germane to her own complaint, that an assessment would have to be made of this first information report on its merits, since the argument has been that most substantially out of all the evidence, it is this document of the complaint Exhibit 54 which fully corroborates the complainant's story. On the other hand and as also would be considered later, this document, would appear to have come into existence, shrouded in considerable mystery and mis-givings about its genuineness.
31. According to learned Counsel Smt. Bhosale appearing for the appellants, Exhibit 54 would not have been admitted in evidence, as a corroborative piece, of course corroborating the story of Jyoti P.W. -12. The reason, according ot the learned Counsel is that a report Exhibit 77 had already come to be made by Jyoti's cousin Rajendra on the 12th of April. It is this report which at best could have been treated as the first information report according to her. It may be mentioned here that about this missing report Exhibit 82 neither the Investigating Officer Patil P.W. 25 nor P.S.I. N.B. Patil P.W. 4 nor the Police Constable Bankar P.W. 23 make any mention of a station diary entry made in that behalf. That apart, it is further difficult to agree with the learned Counsel Smt. Bhosale because the report Exhibit 82 as it is does not speak of the commission of any offence as such but merely about the girl being missing and not necessarily as a result of any crime committed against her or by way of the criminal act as such. It simply mentions that the girl has been missing from the house since 8.00 p.m. and had not been found or traced till about 2.00 a.m. on the 12th April. However, in this behalf there is according to me yet another aspect which needs to be considered. According to the prosecution case, it was in the morning on the 13th of April that the accused No. 6 Hamida having read about the news item about missing Jyoti in the local Marathi daily informed her employer Dr. Thoke that the girl in question had been "detained" in the house of the accused No. 1 Badshah in the Mangalwar Peth locality. Thereupon Dr. Thoke conveyed this information to Jyoti's parents through Shri Zad, proprietor of the medical stores. The wife of Shri Zad and Jyoti's father Chandrakant Pawar are sisters. It was upon this information that Jyoti's cousin Rajendra and Sanjay rushed to the police station. They met the police inspector Patil and requested him for police assistance to rescue Jyoti from that house the case being of an illegal criminal detention of the girl. Whether or not this was therefore the first information report about any offence concerning Jyoti and was required to be entered as the first information report may really be the question. According to the learned Additional Public Prosecutor though indeed, this may have been so necessary even a station diary entry was not yet taken for the reason that police inspector Patil must have been anxious to rescue the girl. This explanation is not satisfactory. Firstly for the reason that it does not appear in the evidence of Police Inspector Patil when he was questioned on this aspect and secondly even if P.I. Patil wanted to rush to house No. 526 for the rescue of the girl, the writer head constable at the police station could all the same have been instructed to make an entry accordingly in the station diary. This is, of course if it was also not possible to record the report or complaint of Jyoti's cousin Rajendra or whoever gave that information seeking police assistance in the matter. It is this which has to be accepted as, in reality, being the first information report of some offence involving Jyoti as the vicitim even if it is now considered as an oral report, an oral report not reduced to writing as required under section 154 of the Criminal Procedure Code.
32. The next aspect to be considered is how, when and under what circumstances Exhibit 54 came to be recorded. According to Jyoti, after being brought out of house No. 526, she was put into the family car. Her cousins were in that car as also some other persons. Police Constable Bankar and Jadhav also brought into the said car and Bankar wanted to take her straight to the police station, the timebeing 12.00 or 12.30 noon. However, Jyoti appeared very keen on first meeting her mother. There appears some confusion in the evidence about whether it was to her house in the LIC Colony that she was taken or to the house of her uncle in Guruwar Peth where her father, in an ailing condition, had been waiting for sometime since the day before. Whatever it was, the evidence of police constable Banker is that after a very brief meeting with the mother police constable Banker took her to the police station. Banker appears to have made no report whatsoever in writing about the conclusion of his mission. He however states that he had made those two women accused No. 2 and 5 wait at the house No. 526 and had ordered them not to leave the place. He also claimed to have accordingly informed the police inspector Patil and was therefore directed to bring them also to the police station. Police Inspector Patil directed PSI Namdeo Patil to record Jyoti's complaint P.S.I. Patil accordingly recorded Jyoti's complaint which is at Exhibit 54 on record. By about 2.30 p.m. P.S.I. Patil went home for lunch. He also states that sometime before he left, police Inspector Patil had taken Jyoti along with him and the evidence is that police Inspector Patil then himself visited house No. 526 and thereafter the Rajatadri hotel also, along with Jyoti. It may be mentioned therefore at this time that the question of seizure of the articles of clothing on the person of Jyoti arose because in this first information report Exhibit 54 it is specifically stated that she was producing all the articles of clothing on her person namely, the maxi, the petti-coat and the nicker describing at that time that the petti coat was in a washed condition and also disclosing for the first time that it was the accused No. 2 Suli who had washed the same at the house No. 526. Police Inspector Patil's evidence is to the effect that though he had visited the hotel Rajatadri that after-noon and though according to him, he had also seen Travellers register maintained at the hotel as also the bill book, etc., he had not made any endorsement on any of these at that time of having at lease casually inspected these documents. At the house No. 526, between 3.00 and 4.00 p.m. he had drawn the panchanama Exhibit 25 where at he had seized a lock. The panchanama so mentions. Whether the key to that lock has come to be seized is not stated by PI Patil even in his examination-in-chief but it is only at the later stage, during his cross-examination that he improvingly states that he had seized a key also at that time and which was produced before the Court. Neither this key nor the lock with which it was operated and which according to the prosecution were the ones in the control of the accused No. 2 and which had therefore been seized by the police constable Bankar were at no time thereafter shown to him though at the trial he claims to have identified these to be the same ones.
33. According to police inspector Patil the panchanama Exhibit 28 was drawn in regard to the location, description and in particular the situation of room No. 21 in the Rajtadri lodge. This was in between 4.30 and 5.30 p.m. as he states. Apparently, thereafter he returned to the police station and then it was at about 7.00 p.m. that Jyoti was sent to the Civil Hospital for medical examination. He has also stated that it was after her return that the articles of clothing on her person were seized under a panchanama Exhibit 30 and he asserts that these were seized from her person though he also admits that a specific mention about such seizure directly from her person as such is not mentioned in this panchanama. It is also necessary to appreciate that the panch witness Babu Kashid P.W. 3 to this panchanama has also in un-equivocal terms stated that he had not actually seen the articles of clothing being seized from the person of Jyoti at the police station. An effort appears to have been made that a spare set of wearing apparels had been brought by somebody at the police station for this purpose but that is not supported by this witness. According to Babu Kashid, he has only seen these articles kept on the table at the police station. A reference to this part of the prosecution case is being specifically made for the purpose of showing that the recital in the first information report Exhibit 54 that Jyoti was producing the articles of clothing on her person at the time of the recording of the complaint cannot therefore be correct if this first information report was recorded by about 12.00 or 12.30 noon. The statement of the Police Inspector Patil that these articles of clothing were seized only after he had returned from the civil hospital after her medical examination runs counter to the prompt production of the articles of clothing and their seizure at the very time when the complaint was recorded.
34. There is yet another aspect which is involved in determining whether the first information report was really recorded soon after the so called rescue of Jyoti from house No. 526. Jyoti had admitted that while she was at the police station some report about the burning down of the house No. 144 had come to be made. The offence in regard to that incident of arson had come to be registered as C.R. No. 91 of 1983 and the time at which this offence was registered is, as per the station diary entry, 3,05 p.m. The present offence relating to Jyoti was registered as Crime No. 90 of 1983. The Police Inspector has however admitted that these numbers have come to be changed and the offence pertaining to the incident of arson upon the complaint Exhibit 77 of Shama Jamal Mujawar had, rather inexplicably, then come to be registered as C.R. No. 92 of 1983 at 3.05 p.m. Why this was done could not be explained by Police Inspector Patil but the suggestion advanced in this behalf is that some involvement of the accused No. 1 Badshah having been indicated in the complaint Exhibit 54 and it having come to the knowledge of Dr. Thoke in the first instance and following the same, of Jyoti's relatives that Jyoti was in the house No. 526 of the accused No. 1 Badshah, the irate re-action on the part of the person interested in Jyoti was responsible for the setting that house No. 144 of the accused No. 1 on fire. A report about this incident having been made by Shama Mujawar, it was as a rebuff to the same, that, suggestively the present complaint of Jyoti came to be recorded and, therefore, this was definitely not at 12.30 or 1.00 p.m.. on 13-12-1983 but much later - definitely after the complaint of Shama Mujawar was received and the offence of mischief with fire came to be registered. Of course, Police Inspector Patil has not indicated as to who were the persons against whom this offence was registered or who were found to be involved in the same as investigation thereon might have proceeded. Suffice it however to observe that just as there is a change and interpolation in the number of these two crimes, it has also been admitted by these responsible police officials, Police Inspector Patil as also P.S.I. Namdeo Patil that in the first instance, in register maintained at the police station also a similar change had came to be made by over writing. All this, according to the defence, suggests that Jyoti's complaint has not come to be recorded at 1.00 p.m. as alleged. It is from this angle that the testimony of P.S.I. Namdeo Patil must also require to be examined.
35. PSI Namdeo Patil admitted on cross-examination that when he recorded Jyoti's complaint she was wearing a maxi; that the said maxi was still on her person when Police Inspector Patil took her away with him - for the inspection of house No. 526 and hotel Rajatadri. He asserts that these very articles of clothing were on her person at the time when he took her to the civil hospital for medical examination. He came to admit quite squarely that she has not produced her articles of clothing before her complaint was recorded or until he took her for medical examination which was not earlier than 5.30 p.m. according to the Investigating Officer P.S.I. Patil. It is, therefore, that the suggestion to him was that actually the first information report had come to be drawn up and recorded very much later presumably even after she was brought back from the civil hospital. The suggestion would not be entirely out of place as I think. Police Constable Bankar did state that after starting from house No. 526, it was only a brief halt at the Guruwar Peth at the house of Pawar's; that he had then proceeded to the police station with Jyoti. He has also stated that Police Inspector Patil had directed him to bring the girl to the police station if as per the report made to him (Patil) the girl were to be found in that house. He admits on cross-examination that he had not disclosed the fact of any such instruction given to him by Police Inspector Patil - to bring the girl to the police station - This statement was recorded during investigation. He further admitted that at the time when his statement was recorded during the investigation, he had not disclosed that on way from house No. 526 to the police station the girl Jyoti had expressed a desire to meet her mother or that he had, for that purpose, allowed the girl to go into the house or that she had thereafter come out within a short time and that he had thereafter taken her to the police station. The suggestion which was therefore made to him was that actually after the girl was found in a manner of saying, all that happened was to reach her to the house in Guruwar Peth and the return all by himself to the police station. This suggestion would not be inconsistent with the position, now becoming fairly clear, that the first information report was not recorded by about 1.00 p.m. as the prosecution has endeavoured to show. His denial of the suggestion that actually therefore the complaint had come to be recorded and signed by him and Jyoti at a much later hour of the day, has therefore to be found as one which is only weak. The first information report Exhibit 54 thus considered in its true and correct light even from the prosecution evidence as it stands on record, would therefore be a document which would not be available to the prosecution for use as a statement to corroborate Jyoti. Firstly for the reason that the commission of an offence, at least by the accused No. 1 Badshah and confined even to the minor one under section 342 of the Indian Penal Code, had come to be reported to the police on 13-4-1983 by Jyoti's cousins Rajendra, Sanjay and others and it was thereupon that the further investigation must be said to have proceeded irrespective of the fact that the police would appear to have taken care not even to make a station diary entry about this, let apart recording a complaint of Jyoti's cousin. On the merits, even if it is assumed to be so admissible in evidence, the evidentiary value of Exhibit 54 for using the same to corroborate Jyoti's version would also be found to be one minimal at best.
36. With that, the case against the accused No. 1 Badshah in regard to the charge under section 366 as also under section 354 requires to be considered with reference to Jyoti's version. The point to be considered is whether the complaint about the accused No. 1 taking her away with him with the intention of seducing her or forcing her to illicit sexual intercourse and the opportunity to the girl to avoid the same has to be considered. There has to be indeed a very long list of the opportunities which Jyoti must be found to have had for not going along with the accused No. 1 in the first instance and then for leaving the house at the earliest. She has admitted in her cross-examination that since she claimed to have indicated her desire to go to the house of Katwe's, she could as well have asked for that address from the old man who first came and contacted her on the steps of the post office in Yadav Gopal Peth. She admits he would have agreed to show to her the house of Katwe. She did not do so. Then she went to the house of Modak's. There also she did not seek help for reaching the house of Katwes. She explains that she was not desirous either to return to her house or to go to the house of any of her relatives. She says that she had asked the accused No. 1 to take her home but this cannot be true since she also says that she had kept chit chatting with the accused No. 1 in house No. 526 till 2.00 a.m. in the morning and also admitts that during all this long while the accused No. 1 had not tried to misbehave with her. Some effort was made by the learned Public Prosecutor to concentrate upon her statement that the accused No. 1 had offered a five rupee note to her. Obviously the intention is that this offer of a five rupee note was a suggestion to her to make herself available to accused No. 1 for an easy time with her. It was obviously possible for the accused to use force against her at that time. When he did not do so, the position became clear that he did not possibly have any evil intention towards her. In fact Jyoti admitted that she could not say whether the five rupee note which he offered to her was for the purpose of helping her, since she claimed to have come all the way. Then she slept in the room of the kind hearted nurse Hamidabai accused No. 6, kind hearted since she offered tea and break-fast to her on the next day morning. If she had so desired Jyoti could have easily gone away in the morning, without the least interference from the accused No. 1 - if the latter had any evil intentions at all, since the accused No. 1 was nowhere near about that morning. She does not say that the accused No. 6, Hamidabai had detained her in any manner. In fact P.S.I. Namdeo Patil who recorded her complaint has categorically admitted that Jyoti had not implicated the accused No. 6 at all and, therefore, accused No. 6's name never came to be mentioned in the complaint Exhibit 54. After the accused No. 6 had gone away by 7.00 or 7.30 a.m. on 12-4-1983 to attend to her duty at the nursing home, Jyoti obivously moved out to the room of accused No. 2. When the accused No. 2 also left the room in the afternoon she herself did not. As she states she herself wanted to stay on. This particular statement that she was herself not keen on going away means that there could, therefore be no occasion for the accused No. 2 to feel or suspect that the girl Jyoti might go away in her absence or, on any such suspicion, to therefore lock her inside that room. The very theory of accused No. 2 having locked her in that room therefore becomes difficult to accept. About this disinclination on the part of Jyoti to go away on her own, the learned Additional Public Prosecutor has argued that this was for the reason thay Jyoti was still angry and had not cooled down so as to think of going home or to the house of any of her relatives. If the prosecution wants it to be accepted that sometime during the afternoon on the 12th, Jyoti had witnessed indecent behaviour on the part of accused Nos. 1 and 2, it is difficult to accept that this mood of anger would not dissolve to give rise to a greater apprehension about her own safety and that she would still continue to remain on the premises of her own accord.
37. Assuming that she were locked in the room by accused No. 2 before the latter went away, Jyoti could as well have raised alarm. The position of the room in which the accused No. 2 lived in the house No. 526 clearly provided to Jyoti an opportunity to raise such shouts and cries and to attract attention. She has stated, rather weakly according to me, that when the room was being locked she had asked accused No. 2 as to what was the propriety of locking her inside in this manner. Jyoti states that the accused No. 2 had not made any reply at that time, which again would be reason for her to suspect foul play and to act in the interest of her own safety. She has admitted that all the way from in front of house No. 526 upto Rajatadri hotel there are houses and houses on either side of the road. It is difficult that she would not then make any effort to attract attention and seek rescue - if really she wanted to.
38. Again according to her, the accused No. 2 brought her out of the house No. 526 saying that the two of them would go out for a stroll. If she had seen the goings on between the accused Nos. 1 and 2 during the afternon earlier, it must be presumed that she was not unaware of such danger to herself and in that case she would certainly have endeavoured to escape from the clutches of the accused No. 2. I have earlier referred to her evidence that the accused No. 2 had threatened that she would not remain alive if she tried to escape or make noise. This in the circumstances was entirely an empty threat when the learned Judge of the trial Court has also observed that Jyoti was not a weak and delicate but a robusst and healthy girl, she could even have fought her way out with the accused No. 2.
39. Jyoti has stated that on reaching the Rajatadri hotel on the evening of the 12th - by 8.00 p.m. or so, she became suspicious and, therefore, asked accused No. 2 as to why she had been brought there. There was no reply from the accused No. 2 as she says. If, only assumingly though, she had earlier kept quiet on account of accused No. 2's threats when they came out of house No. 526, Jyoti had now all the opportunity to seek help and rescue when she admits that at the entrance of Rajatadri Hotel she notice the presence of a watchman in uniform, armed with a cudgel. She did not approach him for help inspite of the suspicion which she states has taken root in her mind.
40. Again after she was allegedly ravished, she would have at the first opportunity after coming out of the room, raised alarm all over the hotel and just refused to go back with the accused No. 2 since it was the latter who had thrown her to two sex crazy wolves. Yet she says that she went back to the house No. 526 with the accused No. 2. Earlier, in the morning of the 12th she admits that she had gone to the public latrine about 159 ft. away from the house No. 526, for answering a call of nature. That again was an opportunity for her to leave the place for good and it being day time she would have conveniently left to go to any place where she would want to since the town of Satara seems to be quite known to her. She could have similarly gone on the morning of the 13th but did not do so. She only says that she was feeling rather ashamed of herself and did not hence want to go out of the house. The witness Atar P.W. 9 who stated that he had followed accused No. 2 into the room where Jyoti was kept. On seeing him she did not ask him to be taken out and freed. Since a reference has been made to Atar P.W. 9, it may again be mentioned that Atar had been taken to the police station soon after Jyoti was taken out of the house. He states that he was detained in the police station till about 1.00 a.m. in the night and was then asked to go home, only to be directed to return the next day in the morning. It is difficult to appreciate why his statement was not recorded though he was so available. A suggestion was, therefore, made to him, that the evidence supporting the prosecution which he has given was the result of threat which has been given to him for teeing the prosecution line. Lastly, the police constable Bankar describes somewhat dramatisingly how, and when Jyoti was rescued, she rushed and fell into the arms of her cousin, crying. But no one, not even Jyoti, corroborates him on this point. All these aspects do, according to me, make the prosecution case against the accused No. 1, entirely suspect.
41. On both the counts under section 366 and 354-A in my opinion the reasoning adopted by the learned Additional Sessions Judge in the light of this assessment of the entire evidence against him, must become unsustainable. Turning, therefore, to the charge under section 366A against the accused No. 2 and the charge under section 376 of the Indian Penal Code against the accused Nos. 3 and 4 both, the evidence on record must necessarily require to be considered or to be given, the prosecution case being that it was the accussed No. 2 who had procured, after she had opportunely come to have the girl Jyoti in her control, for a sexual intercourse which was enjoyed by the accused Nos. 3 and 4. One preliminary submission advanced by the learned Public Prosecutor was that there was actually evidence on record about the accused No. 3 having been contacted by the accused No. 2 and informed about the availability of the girl for that purpose. Actually this is no evidence. Reference is being made to the `confessional' statement which is claimed to have been recorded of the accused No.3 in this behalf. That statement is at Exhibit 95. In the first place this statement has been rejected from any consideration whatsoever by the trial Court already. That apart, it will also have to be appreciated that this confessional statement, if indeed it was of an inculpatory nature would be so useful in evidence only against the accused No. 3 and not against the accused No. 2. Further, apart from this position, it has also to be appreciated that upon an assumption of this confesssional statement having been duly proved against the accused No. 3, there is nothing indeed inculpatory about it specifically as regardss the charge under section 366 of the Indian Penal Code against accused No. 2 Suli as such is concerned. The statement falls short almost completely about they having had any sexual intercourse with this girl Jyoti whether by consent, persuation, deduction or the employment of any criminal force.
42. The prosecution case is that in the evening on the 12th April, the accused No.2 persuaded Jyoti to dress herself in a saree on the representation that she would take her out for an evening walk or stroll. She apparently succeeds in bringing Jyoti out of her room in the house No. 526. At a distance of about 100 ft. or so, an autorickshaw was found waiting. Jyoti says that she walked upto to this rickshaw as asked by the accused No. 2. It is at this time that according to the prosecution, the witness Ganpat Bhosale had seen these two women and had also seen them going away in that autorickshaw, in the direction of the place called Khari Vihir. Apart from the any real evidentiary value which Ganpat's testimony would carry, the same is all the same suspect for one reason. According to Jyoti, a scooter had been found waiting at a distance of about 100 or 150 ft. ahead of the autorickshaw. She had seen two persons whom she could not recognise because of the darkness but they got up on the scooter and drove away and the autorickshaw followed that scooter. Directly contradictory to this statement is Ganpat's evidence. According to him, the scooter, had followed this autorickshaw. One need not really attach too much of importance to this, even assuming that Ganpat may have seen these two women so going in this autorickshaw. According to Jyoti, she was warned and threatened at the time by accused No.2 while asking her to get in the autorickshaw - that she should not make any attempt to escape or raise shouts and cries, that otherwise there would be danger to her life. If the entire context of the prosecution case upto this point of time is to be appreciated, then it will be realised that upto that point of time there had happened nothing as between the accused No. 2 and the girl Jyoti which would make her scared of this accused No. 2. This is for the reason that I have found and held that the evidence about the accused Nos. 1 and 2 indulging in obscenity in her presence in her room or for that matter the accused No.1's entertaining the accused No. 2 in the latter's absence for trying to fiddle with the girl is thus unacceptable. Even so, it has to be noted that this evidence about the threats given to her before starting cannot appeal as genuine. For on the very same premise, urged by the prosecution that the evidence about the misbehaviour on the part of the accused Nos. 1 and 2 had arosed any suspicion in her mind, then even at that point of time when Jyoti came out on the road, it was open to her to refuse to go with accused No. 2 or if tried to be forced, to raise alarm. This could also be done by her all along the road until they reached the hotel Rajatadri. There are houses on either side of the road as disclosed in the evidence. She states that they eventually reached the Rajatadri hotel. This hotel is situated in a square in which the statue of Chhatrapati Shivaji Maharaj is installed and all around this statue she admits there is always and at that time was, heavy traffic. At the entrance of the said hotel she admits to have seen a watchman from whom also no help was sought by her inspite of her having become suspicious. On reaching the hotel it is her evidence that the accused No. 2 straightaway took her to the room No. 21. At this stage the evidence of the room-boy Prasad Shetty P.W. 16 has to be considered. On that day he had been on duty from 6.00 a.m. in the morning till 6.00 p.m. He was off duty and free thereafter. However, at about 8.00 p.m. or so he happened to have returned to the hotel and claims to have been only casually, sitting with the watchman at the entrance. The evidence shows that there is some considerable distance between the entrance of the hotel and the counter of the residential part of the hotel. In between the entrance and the counter, there is a restaurant. Even so, Prasad Shetty, states that sitting very casually, without any work on hand he had seen the accused No. 3 entering the hotel, going all the way upto the counter where the manager Vijay Kumar was sitting and talking to him. Having regard to the distance between these two points, it does not appear very convincing when he says that when the accused No. 3 asked the manager Vijay Kumar about the availability of a double bed room and the latter told him about the availability of only one five-bed room in the hotel at that time. As I would presently show, the examination of this watchman as a material witness became necessary in fact imperative for the prosecution for several reasons. However, it is to be mentioned that this watchman was not examined as prosecution witness and it does not appear from the evidence of the Investigating Officer Police Inspector Patil P.W. 25 that even his statement was recorded during investigation, the acute need being for ascertaining whether Prasad Shetty was in fact sitting with the watchman at that time and whether like Prasad Shetty he had also noted the arrival of accused Nos. 3 and 4 and then the girl Jyoti accompanying accused No. 2. Prasad Shetty also stated that he saw the accused No. 3 writing something in the register kept on the counter. It is important to note that he does not say that the accused No. 4 had accompanied him at that time. All that he says was that the accused No. 3 had then engaged a room. The prosecution, therefore, expects the Court to only assume that the accused No. 4 had also thereafter gone into the said room No. 21 on the ground floor along with the accused No. 3. Be it noted that Prasad Shetty does not testify to the fact of arrival of Jyoti alongwith the accused No. 2 and their going into the room No. 21. He only says that he saw the said accused No. 3 Jony leaving the lodge and that there was one other person and two girls with him at that time. The question which therefore, arises is how the accused No. 2 had without there being any visible contract between herself and the accused No. 3 could have inordinarily gone to room No. 21 in hotel Rajatadri. However, Jyoti says that the accused No. 2 took her to that room, closed and latched the door from inside. The room was a dimly lit one and, therefore, she had not been able to see the accused Nos. 3 and 4 properly so as to note their features. She described them as some what dark complexioned persons in her complaint Exhibit 54, as also in the evidence when she first saw them near the scooter in the evening and when they were with her in the said room No. 21. After sufficiently threatening her, they both committed rape on her. The accused No. 2 thereafter helped her with her wearing apparel and brought her out of the room and the two of them then returned to the house No. 526 in the same autorickshaw. It should be noted that though Prasad Shetty says that he saw a boy and two women with the accused No. 3 when he left the lodge, the clear impression which Jyoti's version creates is that it was only she and the accused No. 2 who had together left the hotel, bringing the prosecution case all these four persons being seen together into dark. It is also a very material feature of the evidence that Jyoti does not say that atleast after she came out of the room in a mouled and ravished condition, she made any complaint to any person present on the hotel premises nor does she say that at least after that incident she declined to return to the house No. 526 with the accused No. 2. All this is entirely difficult to reconcile with the premise that she had been unwillingly taken to the Rajatadri hotel or that she had been subjected to a forcible intercourse and had yet returned to the house No. 526 with the same accused No. 2 who had thus exploited her. She says that after coming out of the hotel she has seen the accused Nos. 3 and 4 driving away on the scooter even then she admits that she had not raised any alarm that they be apprehended for having committed rape on her.
43. Prasad Shetty's version which has been so heavily relied upon by the prosecution needs to be considered in some further detail. He says that at about 9.30 p.m. the accused No. 3 left the room No. 21 accompanied by the accused No. 4 and the two girls. He has stated that he is provided with residential quarters at the back side of the hotel. Having attended duty all throughout the day from 6.00 a.m. to 6.00 p.m. it is difficult to appreciate that he would be still sitting in the hotel premises instead of taking rest. It is therefore that the examination of the watchman at the entrance of the hotel becomes very essential. For Prasad Shetty does not say that it was his routine to sit near the watchman after his duty hours. After 6.00 p.m. the room boy who was put on duty for rooms Nos. 15 to 28 on the ground floor was one Sanjay Varghate. It would therefore have to be presumed that any duty pertaining to the attendance upon the room Nos. 15 to 28 would be performed by the said Sanjay. It would be Sanjay himself who would be in the event of any of these rooms being vacated attend to tiding them up for the arrival of any fresh guests. But Prasad's version discloses nothing about even the presence of Sanjay. At any rate between 8.00 p.m. and 9.30 p.m. the accused and the girl left. Prasad has stated that he felt rather suspicious about the early departure of these persons and had mentioned the same to the Manager Vijay Kumar. He also says that on the next day in the morning when he went for the duty at about 6.00 a.m., he saw the two bed sheets in a soiled condition but does not say that he found some blood stains on them. This has to be mentioned as being significant because in the report of the Chemical Analyser pertaining to the two bed sheets that were sent at least one, Article No. 10, was mentioned as having blood stains. He also states that he then showed the soiled condition of these two bed sheets to the Manager though ordinarily it would have been the duty of his predecessor on duty, Sanjay Varghate, to note the condition of the bed-sheets if it was such as much arouse any such suspicion. He says that having discussed the matter with the Manager, both of them had gone to inform the owner of the hotel about the previous evening's suspected happenings in room No. 21. The owner did not apparently feel the matter any serious. Enthusiastically Prasad Shetty, says that he had even advised the Manager and the owner that the matter should be reported to the police. The two bed-sheets were however kept by him carefully enough apart, close to the place where the hotel linen and laundry is kept. This, he says, was done on the advise of the Manager. An observation to be made, for furtherance of any plea to be validly raised upon the testimony of Prasad Shetty is that the examination of the owner of this hotel also became not merely relevant but even necessary as it was in the case of the watchman as earlier noted. Therefore, Prasad's testimony that he had suggested making a report to the police or had been almost precaucious in keeping separate the two bedsheets from room No. 21, exposes only a tutoring. The prosecution case as comes from the testimony of the Investigating Officer Police Inspector Patil is that these two bed sheets were seized on the 14th April as per the panchanama Exhibit 43, the panch witness there to being Bashir Shaikh P.W. 7. Both of them state that on the 14th April the travellers register, one book and two bed sheets were attached under this panchanama. If these bedsheets had been kept separate from the morning on 13th April until the seizure thereof on the 14th of April between 6.15 and 7.00 p.m. it was necessary for the prosecution to state and establish as to who had been kept incharge of these two bedsheets until then. Prasad Shetty does not state that he kept these bedsheets with himself or in any particular closet in the hotel nor where then they had been lying after he had seen them kept near the container where the used up laundry and linen is dumped. What is most surprising is the statement of Prasad Shetty that the bed sheets had not come to be seized even on the 14th April. Even so, the learned Additional Sessions Judge has believed this witness to hold that Prasad Shetty had seen the accused No. 3 talking with the Manager in the hotel asking for a room and making entry in the register. Whether he could really be such a witness does not appear to have been considered with due circumspection. More so when he also admits that his statement was not recorded on the 13th when according to Police Inspector Patil he paid the first visit to the hotel. Subjected to cross-examination Prasad Shetty admitted that he had not disclosed that he had been on duty in the room No. 15 to 28 on that date, when his statement was recorded during investigation. He also did not disclose that at about 8.30 p.m. on 12th he had been sitting near the watchman or had seen the accused No. 3 approaching the Manager and asking for a double-bed-room from the Manager or also hearing that a five bedroom was the only one available. He admits not to have disclosed during his statement that he had seen the accused No. 3 leaving with the two girls and another boy. Nor did he disclose that the next day in the morning that he had gone to room No. 21, seen bed sheets in a soiled condition or had suspected any impropriety. A very material omission indeed. He had not disclosed about his informing the Manager about this or about keeping the bed sheets separate from others. He did not state before the police that he had seen accused No. 3 or any other person making any entry in the travellers register kept on the counter. He did not disclose that he had told the Manager that it would be necessary to inform the owner and that they should do so or had done so. He admits that though he had been sitting with the watchman, he did not have any talk with the later about what had transpired within that period of an hour or an hour and half at the most. Of course he denied the suggestion that the accused Nos. 2, 3 and 4 and the girl had never been to the hotel and never seen by him. Having indeed so scrutinised the testimony of this witness, the only conclusion to which one can possibly come is that the prosecution not having been able to examine the Manager Vijay Kumar and the room boy Sanjay Varghate, this room boy Prasad Shetty has only been made a substitute to tell that story which the prosecution expected the Manager and Sanjay Varghate to give out. In short, Prasad Shetty's evidence cannot commend itself to the Court and therefore, cannot be useful for corroborating the testimony of the girl Jyoti. The non-examination of the two witnesses the Manager Vijay Kumar and the room boy Sanjay Varghate as would be eventually appreciated and concludable is for the reason that they were not prepared to give such evidence for the prosecution as clearly attained the character of bring cooked up and concocted.
44. Before proceeding to discuss the evidence of Jyoti P.W. 12 on the fact of the actual rape committed on her, the preliminary position to be appreciated is about the very arrival of the accused No. 3 at the Rajatadri hotel and registering himself in room No. 21. This is sought to be established on the premise that he had made an entry in the hotel register which has been produced on record at Exhibit 36. This entry upon comparison with the specimen hand-writings was opined by the hand-writing expert Salim Khan P.W. 6 as being in the hand of the person who made the specimen writing i.e. the accused No. 3. Vijay Kumar has ofcourse not been examined to prove that this hand written entry in the register was made by the accused No. 3 in his own hand writing in his (Vijay Kumar's) presence. A semblence of the support in that behalf comes from the already discredited witness Prasad Shetty who says that he has seen the accused writting something in the register. What creates a doubt about this entry as really being in the hand writing of the accused No. 3, is for two or three substantial reasons. The first is that though the Investigating Officer Police Inspector Patil P.W. 5 stated that he had quite promptly visited the hotel Rajatadri by about 3.00 or so on the 13th and had even checked the hotel register - with panchas present, as he says, yet no endorsement was made by him on the said register about his having so checked the register for noting the entry occupant of the room No. 21 on the evening of 12th April. As stated by even the obliging prosecution witness Prasad Shetty, nothing was seized from the hotel on that day including the bed sheets to which I have already made a reference. Not only that, he also asserts that no such seizures were effected even on the 14th and, therefore, the panchanama of seizure at Exhibit 43 becomes doubtful. This is for the further reason that in regard to the description of the bed sheets, there is no reference to them as being blood stained or even soiled as was later on given out in the evidence. In that view of the matter, the reliance on this entry in the register as is sought to be placed rather strenuously, becomes difficult for acceptance. Therefore, the fact of Room No. 21 in the hotel Rajatadri as being in the first place the place where the crime was committed, comes into doubt.
45. Turning then to the evidence about the actual rape, Jyoti has stated that after she had entered the room No. 21, escorted by the accused No. 2 Suli, the door was closed and bolted from inside and then she was dragged to the bed and successively raped by the accused Nos. 4 and 3 in that order. She says that her mouth was pressed to stop her shouting and crying. She embellished this version by stating before the Court that her mouth was actually gagged which fact does not find any mention in the first information report Exhibit 54. She says that she tried to resist violently by kicking the first ravisher accused No. 4. However, she did not scratch on his body to cause any defensive injuries to him. Admitting that at a stage it did happen that the hands of this ravishers were off her mouth sometime during those moments she did not yet raise shouts and cries. On her private parts and elsewhere on the body there were injuries caused. There was bleeding from the private parts. Though she has stated that the petti-coat stained with blood had been later on washed by accused No. 2 Suli on returning to house No. 526, she does not say anything about the nicker or the underwear which has been described as the `Jangya' in the report of the Chemical Analyser. It is evident that if as stated by her the petti-coat stained with blood and semen discharged, the jangya also must have been. It could not have remained clean. Yet the jangya was not ascertained as washed and what is therefore significant is that neither blood nor semen discharged was found on the jangya. She also states that she had been wearing plastic bangles on her wrist. If it was by overcoming her resistence that she had been ravished it would be reasonable to expect that these frail and delicate bangles would be broken. No such broken bangles were found in the room No. 21, when this panchanama was drawn. Even Prasad Shetty is silent upon finding any such broken bangles. After, therefore, considering the medical evidence in support of the rape, it would have to be further borne in mind all the time that according to prosecution Jyoti is alleged to have been ravished not by one but two sexually potent and healthy young men.
46. She was examined by Dr. Smt. Machale at about 6.15 p.m. on the 13th of April. The Medical Officer observed no external injuries on her body and none on the external genitals. She did however find the hymn showing a recent tear with margins conjested and caused possibly within 72 hours of the time of examination. On examination she found it tender. The vagina admitted only one finger with difficulty. Vaginal swab was taken for detecting the presence of sparms and the swab was sent to the chemical analyser who as per his report Exhibit 79 reported it hat neither semen nor spermatozoa was detected in the swab. Dr. Machale has also stated that she did not find any blood stains on her articles of clothing which is now to be observed as being principally concerned with the admissions of Jyoti that at the time when she was sent for medical examination she was not wearing those articles of clothing which were on her person at the time of this incident of rape. Even so, Dr. Machale only opined that the girl `might' have been subjected to sexual intercourse. Her cross-examination, would, however, eliminate the possibility of such sexual intercourse. This is for the reason that the prosecution case that her wearing apparel were stained with blood or semen has not come to be established. Though Jyoti stated that there was bleeding from the private parts which had been going on, none was found by Dr. Machale. If Jyoti had not had any bath on the morning on the 13th or at any time until she was sent for medical examination, seminal discharge of not one but two ravishers would in ordinary course cause matting the public hair which was not however observed. The Medical Officer admitted that in view of the very small vaginal orifice which could admit only one finger with difficulty, it would be difficult to have a normal sexual intercourse with her and, therefore sexual intercourse would have to be not only painful but would result in causing injuries. No such injuries were found by Dr. Machale nor any bleeding. Further, Dr. Machale admitted that on the male sexual organ of the ravisher also injuries would be caused by reason of forceful penetration of the penis. No such injuries were found when both these accused were examined by Dr. Awale P.W. 10. He certified, as per his report Exhibit 48, that he did not find any mark of sexual inter-course nor the presence of any public hair on the private parts of the accused and as such on examination at 00.00 hours on 14th April 1983, though he found both the accused Nos. 4 and 3 capable of having sexual intercourse, he could not certify that they had had any recently. In that view, there is very little support which the prosecution can claim to derive for corroborating Jyoti's version she being admittedly the sole witness to the ravishing, the victim herself. The articles of clothing as were sent to the chemical analyser, as seen from the evidence discussed above would not now appear to have been those which were on her person at the time of alleged commission of rape. Considering the report even in respect of these that were sent and examined, viz., a maxi and petti-coat and a jangya, no blood or semen was detected on the maxi. On the petti-coat a few blood stains were found and a moderate number of semen stains. It is assertively the prosecution case that the petti-coat worn by Jyoti at the time of this incident had come to be already washed by accused No. 2 Suli. It is pertinent to note that the petti coat has been described as being in the washed condition as per the report of the Chemical Analyser. This is in spite of the fact that two other articles of clothing Nos. 7 and 8 which are said to be pyjama and open shirt of the accused No. 4 has yet to be very specifically described as locally washed. If the washed condition of these two articles was noticeable, then the washed condition of the petti coat would also have been so noticed but it is not. All this therefore creates a doubt whether the petti-coat Article No. 2, was really the one which was on Jyoti's person. The finding of blood and semen stains on it cannot therefore be available to the prosecution to corroborate Jyoti. On what are claimed to be the articles of clothing of accused No. 3 at Serial Nos. 4, 5 and 6 in the report Exhibit 80 of the Chemical Analyser neither blood stains nor semen was detected. Similarly, on the Article Nos. 7, 8 and 9 in the said report, stated to be those of the accused No. 4, no semen was detected and on Article Nos. 7 and 8 some blood stains were detected. However, having regard to the totality of the evidence this by itself would not be sufficient to corroborate Jyoti. Further, a very serious doubt stands to be created about these articles of clothing being the ones on the person of the accused No. 4 at the time of the alleged rape committed by him. This for the reason that what was seized from the accused No. 4 under the panchanama in that behalf was a pant or a pair of trousers. It is not such a pant or a pair of trousers which was sent to the Chemical Analyser but a pyjama. How and from where this pyjama came to be seized and sent to the Chemical Analyser remains as unexplained as it is mysterious therefore. In the circumstances, there is little support, even circumstantially, which Jyoti's version can be said to have derived from the prosecution evidence as discussed above. The learned Additional Sessions Judge while considering the prosecution evidence however came to conclude that Jyoti had been forced to go with accused No. 2 under threats the in-probability of which had already been discussed earlier. While admitting the fact that there was no mention of threats in the Jyoti's complaint Exh. 54, either before or after going out of the house and though he therefore accepted this evidence of Jyoti as definitely as an improvement, he yet proceeded to style and ignore it as being inconsequential and peripheral and improved. I am afraid this cannot be appreciated as being proper and valid reasoning at all. Worse still, the learned Judge observed that the official who recorded the first information report might not have been careful and might have therefore, omitted to make a mention about the same. This conjectural approach on the part of the learned Judge for founding a conviction has to be only strongly disapproved. The girl must have been forced to go with the accused No. 2 as he observed. Therefore, this is a clearly a super conception that she had gone to the hotel under threats. In my opinion, this is only an assumption itself that Jyoti had been to the hotel and it is around this assumption that more assumptions and conjectures comes to be wrapped to build the centre-piece of the prosecution story. Having regard to the evidence even of Prasad Shetty P.W. 16 and the Investigating Officer P.I. Patil P.W. 25 the learned Judge observed that there is nothing unnatural in the accused No. 3 engaging the room in the hotel for a short while. This also sounds entirely improper an approach when the rooms are booked for residence as such. As to the hotel register entry, the learned Judge admitted that the register was not seized on the 13th of April though it would have been. All the same, he observed, that a perusal of the register did not show anything suspicious. This is where relevant evidence has been clearly overlooked. The entry of booking about the room No. 21 on the 12th of April came to be made on 8.30 p.m. while there was already, standing in the register, another entry pertaining to the occupation of another room in the hotel at 8.40 p.m. and about which the Investigating Officer has failed to make any observation. It is this therefore which creates a doubt in the mind about the very genuineness of this entry, a suspicion that the entry must have come to be made, suitably to the investigation, after the entry at 8.40 p.m. The learned Judge however addressed himself to the question that Jyoti's word could be accepted without any proof of any injuries to her person or the private parts. It was argued in the trial Court as here also, that it would be possible to do so for the reason that the incident had taken place on a thick soft bed in that room and though Jyoti had offered resistence, the same was feeble. This cannot be accepted when she herself deposes that injuries were caused on her body including private parts. Referring to the decision in Durapandi Theyar v. State of Tamil Nadu, 1973(2) S.C.C. 680, the learned Judge observed that actions and omissions which were not on vital parts had to be ignored; that as held in Bhagibhai v. State of Gujarat, A.I.R. 1980 S.C. page 753 minor discrepancies which did not go to the root of the matter could not shake up the foundation and core of truth in a prosecution case. There were no infirmities in Jyoti's evidence as he observes. This observation as will be appreciated from the evidence discussed above is far from correct and true.
47. As noted earlier, the trial Court rejected-and quite rightly - from any consideration whatsoever the so-called confessional statement Exhibit 85 of the accused No. 3. Similarly, the trial Court also rejected the evidence as to the test identification parade in regard to the identification of these accused persons by Jyoti and Prasad Shetty in particular. The test identification Parade was held by the Tahasildar cum Taluka Magistrate Shivaji Shinde P.W 21 and the panch Karmalkar P.W. 8. At the time of arguments in this appeal also the learned Public Prosecutor has, with considerable discretion indeed, chosen not to refer to the evidence of the test identification parade. Therefore, in regard to the indulgence on the part of the accused No. 2 in being a procurer for the accused Nos. 3 and 4 and thereby committing an offence under section 366, the conclusion and finding in the affirmative reached by the trial Court cannot be sustained much less the trial Court's finding that the accused No. 3 and 4 did on the night of the 12th of April committed rape on Jyoti P.W. 5.
48. I have already observed that in the complaint Exhibit 54 of Jyoti apart from my finding of its inadmissibility in evidence, the name of accused Nos. 5 and 6 had not been mentioned to implicate them. Now, so far as accused No. 2 is also concerned I have noted the evidence of the police constable Bankar. His evidence was that after Jyoti was allegedly rescued from the said house No. 526 from the southern or south-eastern corner room thereof, he had asked the accused No. 2 to remain available. When he returned to the police station along with Jyoti and mentioned about the accused Nos. 2 and 5 to the Police Inspector Patil the latter had directed him to promptly go back and fetch those two women also. When police constable accordingly went back to the house No. 526 he found the sourthern room locked again. He therefore, questioned accused No. 2 as to why she had locked that room. The answer which according to the Police Constable Banker she gave was that she locked it lest on finding it open the accused No. 1 should question her about or so to say castigate her. That disclosure of accused No. 2 as I have observed can only be construed as amounting to some fear or apprehension about the accused No. 1 harboured by her, meaning, she was afraid of him about her having indulged in making use of that room, without his permission or consent. That inference as also observed by me therefore suggests the absence of any unholy and criminal alliance between the accused Nos. 1 and 2 and, therefore, now the accused No. 2 in the absence of any other substantive evidence stands to be exonerated of the charge under section 366. The case of these three accused persons Nos. 2, 5 and 6 has therefore to be considered as one in which they had been unnecessarily as also artificially drawn and that with the sole object of shutting their mouths against speaking favourably to the accused No. 1. In fact such a suggestion was also made to the witness Atar P.W. 9 in his cross-examination that he had been forced and pressurised by the police to give evidence against the accused No. 1 to the truth of which suggestion the fact of his statement not being recorded on the 13th or until late on the 14th bears testimony. This desire to implicate the accused No. 1 has therefore to be connected with the fact that his house No. 144 in Yadav Gopal Peth had come to be burnt down some time after mid-day, more approximately by about 2.00 p.m. or so on 13th April, 1983 and that this was more than probably a sequel to the position that the girl Jyoti was found in his house No. 526. That was, therefore, by way of reprisal against the accused No. 1 suspecting him to be the mischiefmonger. When a report of mischief by fire under section 436 of the Indian Penal Code then came to be made by Shama Jamal Mujawar and an offence of arson registered, Jyoti's relatives, more particularly her cousins and others from the locality became the prime suspects. It was in order to weaken their case as the learned Counsel for the appellant therefore argues that the present offence against the accused Nos. 1 and 6 others came to be registered. This is further borne out by the fact that Jyoti admitted in her cross-examination that from house No. 526 she had been taken to her uncle's house in Guruwar Peth and that she has probably gone thereafter to the police station only about 4.00 p.m. She has also stated that she was in the police station until about 10.00 or 10.30 p.m. after returning from the Civil Hospital where she had been sent for medical examination. It is therefore, also quite understandable that it was to keep in conformity with the object of preventing the involving of Jyoti's relatives in the offence of arson pertaining to house No. 144 and in order to pressurise the accused No. 1 in that behalf that the present offence came to be registered, in the first instance only against him. As is to be noted from the cross-examination of the Investigating Officer Police Inspector Patil, the offence under section 366A against the accused No. 2 came to be added only much later on the 24th June, 1983.
49. Let me, therefore, briefly refer to the reasoning adopted by the learned Additional Sessions Judge for holding the charge against the accused No. 2 under section 366A and the charge against the accused Nos. 3 and 4 under section 376 of the Indian Penal Code as proved. Starting with the girl's departure from her house at or after 8.00 p.m. on 11th April, the learned Judge observed that Jyoti had come in the vicinity of the house of Patwe's as indicated from the evidence. Therefore, according to him, she deserved to be believed when she stated in her deposition that she had wanted to go to the house of Patwe's. At the same time he also remarked that it `apparently seems to be aimless wandering on her part'. The two position cannot be duly reconciled according to me. As to Jyoti's admission that she had not asked the old man who made inquiries from her while she was sitting on the steps of the post office, the learned Judge observed that this was true but according to him but when Jyoti did not take the step of making inquiry about Patwe's house from that old man, that was not sufficient ground to reject her evidence. That admission on her part is one amongst the several material omissions which she had made and the large number of contradictions that have crept in her evidence throughout her examination-in-chief as also cross-examination by the accused persons. An argument appears to have been advanced in the trial Court that having lost her way or having aimlessly gone around the town, Jyoti had eventually taken shelter in house No. 526. The learned Judge held that it was not possible to accept that contention and according to him, it was necessary to bear in mind the human psychology and behavioural probabilities while assessing the testimony of the prosecutrix. If it is to be assumed that the accused No. 1 did meet her, it is difficult to appreciate why such would not be the reaction on the part of Jyoti if the accused No. 1 having met her learnt from the inquiries that she was a girl from Poona and had been wandering all alone at that disolate hour of the night.. The learned Judge remarks further that the girl did appear to have foolishly left her house that evening and to that extent the defence could not be accepted. It was certainly unwise for the girl to leave the house on being scolded by the mother but she could not be said to have still abandoned the protection of the guardians. Though Jyoti herself does not admit that she had previously left her house in this manner her father Chandrakant does state that before the present incident also Jyoti had gone away from the house once or twice when she was displeased and annoyed with her mother.
50. It was pointed out to the learned Judge that the accused No. 1 had not at all misbehaved with Jyoti on the night of 11th April. However, according to the learned Judge, `it does not mean that he would not do so the next day'. This is also a clear misappreciation of evidence when it is established from the evidence on record that in the evening on the 12th April and thereafter until Jyoti was brought out of the house No. 526 the accused No. 1 has never even visited that house. I have already given the reasons as to why Jyoti's evidence about any attempt at her molestation by the accused No. 1 cannot be accepted as the truth. The learned Judge observed that the accused No. 1 had kept Jyoti with the accused No. 2 Suli i.e. in the custody of accused No. 2. This is an omission is entirely out of record, viz., that the accused No. 1 had delivered her to the custody of the accused No. 2 is not even the evidence of the girl Jyoti herself. The learned Judge accepts the correctness of the premise that there were no restrictions put on Jyoti's movement by accused No. 1, 2, 5 and 6 as could be seen from her admissions. The only evidence was that the accused had gone to her room for a few minutes. It is indeed an error to yet come to the conclusion about the accused No. 1 outraging the modesty of the girl Jyoti or the accused No. 2 keeping her forcibly in her own custody for being thrown later to two sex crazy young men. Though according to the learned Judge, the evidence fell short of proving an attempt on the part of the accused No. 1 to commit rape on Jyoti, his act of catching and trying to pull her to himself - as deposed to by Jyoti - did amount to committing an offence under section 354 of the Indian Penal Code. This conclusion could be reached only without regard to the totality of the facts and circumstances of the case, and for accepting this evidence the learned Judge has placed reliance upon the complaint Exhibit 54 as constituting corroboration. That premise, as I have already observed, is not open for the prosecution to canvass any more.
51. The learned Judge's attention was drawn to the fact that in the so-called first information report Exhibit 54 it was stated by Jyoti that the accused No. 2 had locked up Jyoti in her room at about 4.00 p.m. and had gone away to return only at about 7.30 p.m. Be it noted that Jyoti has not mentioned the fact about the accused No. 1 coming to the accused No. 2's room and indulging in indecent behaviour with her in the presence of Jyoti in this F.I.R. It was therefore argued that when Jyoti stated before the Court that the accused No. 1 had come to accused No. 2's room about 11/2 hour after accused No. 2 had left the room, the evidence that the accused No. 2 had gone away at 4.00 p.m. would either have to be disbelieved or the evidence that the accused No. 1 had entered the room sometime between 4.00 and 7.30 p.m. would also have to be disbelieved. The learned Judge however proceeded to hold that having regard to the fact that her evidence was being recorded almost a year after the incident, this discrepancy could not be regarded as material. With respect to the learned Judge, this in fact introduced a very fatal lacuna in the narration and, therefore, in the resultant incredibility of the judgment.
52. Dealing with the question of corroboration required, for assessing the evidence of Jyoti, the learned Judge found it in this complaint Exh. 54 and observed that the incident of the accused No. 1's trying to outrage her modesty had come to be mentioned in the Exhibit 54 and, therefore, her word was to be accepted. The learned Judge found no force in the contention that if the accused No. 1 had wanted to ravish Jyoti he would not have allowed his purpose to be frustrated because some friends dropped in most inopportunely and that he would have conveniently shooed them away. The learned Judge comes to reject this in a more generalised manner. He observes:
"There could be a number of reasons why accused (No. 1) Badasha could have left without accomplishing his design."
It can only be said that this again is a poor conjecture and overlooks the fact, subsequent though, but of immense relevance that in view of his attempt at molesting Jyoti having been intempted, the accused No. 1 had not thereafter, though Jyoti was in the house No. 526 till mid-day of 13th, even chosen to go there at any time.
53. The learned Judge's proceeding to rely upon the evidence of Jyoti yet is reasoned out in Para 46 of his judgment. He observes that even though the offence for burning down of the house No. 144 of the accused No. 1 appeared to have been registered at the police station on the complaint of Shama Mujawar, no name of any member from the family of the prosecutrix was shown in the complaint as the perpetuators of the said crime. He proceeded to observe that consequently there would be no reason for the prosecutrix to come forward to file a complaint against the accused No. 1 Badasha. He further observes :
"It would be improbable that without any sufficient reason the girl Jyoti would think of bringing a false charge against the others alleging violation of her own virtue. It may be noted that the girl or a woman in our society is extremely in such condition that she could not immediately return to her parents' house due to shame. She was forced to sexual intercourse again under threats to her life ..........."
"It may also be noted that no girl would readily foist a rape charge on a stranger unless remarkable set of facts or clearest motives were made out. Without such strong motive hypothesis of false implication would be improbable .................... There is no reason why the prosecutrix should falsely point an accusing finger at accused Nos. 3 and 4. It is also seen that there is certainly circumstantial evidence to show that the accused No. 3 must have engaged the room in which the offence of rape was committed."
54. In my opinion, all this reasoning stands very substantially assailed by the appellants, as will be seen from the evidence already discussed. All that I would observe in regard to the reasoning about Jyoti's possibly not making a false charge against these accused persons, for bringing her own name in disrepute is merely pointificating on the subject and no more. Having thus paid my anxious attention to the entire set of facts and circumstances as they have emerged from the records, the appreciation of the evidence by the trial Court has to be found as wholly incorrect and improper - to be modest in one's expression. I am quite satisfied that the charge against the accused Nos. 1, 2, 3 and 4 has not at all been brought home to them and their conviction as recorded was incorrect, improper and illegal. It would have therefore to be set aside by allowing this appeal.
55. The appeal is hereby allowed. The conviction of the appellant No. 1 Badasha under section 366 and 354 of the Indian Penal Code and the sentence imposed upon him are both hereby quashed and set aside. He shall be accordingly acquitted of these charges. He has been on bail pending the appeal. The bail bond shall now stand cancelled. The conviction of appellant accused Nos. 3 and 4 Kishore Jony and Bharat Raut under section 376 of the Indian Penal Code is hereby quashed and set aside and they stand acquitted of the said charge. Their bail bonds shall also stand cancelled. The accused No. 3 is in jail. He is now directed to be set at liberty forthwith. The bail bond of accused No. 4 shall stand cancelled.
56. The appeal of the appellant accused No. 2 Usha @ Suli is also hereby allowed. Her conviction and sentence imposed under section 366A of the Indian Penal Code is hereby quashed and set aside. She stands acquitted of the said charge. Her bail bonds shall also stand cancelled.