{"id":64726,"date":"2009-04-16T00:00:00","date_gmt":"2009-04-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/umesh-g-patil-vs-the-state-of-maharashtra-on-16-april-2009"},"modified":"2017-08-18T04:46:45","modified_gmt":"2017-08-17T23:16:45","slug":"umesh-g-patil-vs-the-state-of-maharashtra-on-16-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/umesh-g-patil-vs-the-state-of-maharashtra-on-16-april-2009","title":{"rendered":"Umesh G. Patil vs The State Of Maharashtra on 16 April, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Umesh G. Patil vs The State Of Maharashtra on 16 April, 2009<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
                                      1\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                 CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                          \n                 CRIMINAL APPEAL NO.1094 OF 2002\n\n\n\n\n                                                  \n                              WITH \n              CRIMINAL APPEAL NOS.1151 & 1239 OF 2002\n                                 \n\n\n\n\n                                                 \n    CRI.APPEAL N0.1094\/02:\n\n    Umesh G. Patil,\n    R\/o.Vitawa, Koliwada, Thane.          ...Appellant.\n\n\n\n\n                                          \n                            Vs.\n    The State of Maharashtra,ig\n    (At the instance of Vadgaon\n    Maval Police Station.                             ...Respondents.\n                           \n                                    ....\n    Mr.Harshad Bhadbhade for the Appellant.\n    Dr. F.R. Shaikh, APP  for the Respondent.\n                                    .....\n          \n\n    CRI.APPEAL N0.1151\/02:\n       \n\n\n\n    1. Sachin Eknath Rao,\n        Aged about 21 yrs., Occ. Labour.\n    2. Amit Eknath Rao,\n        aged about 20 yrs., Occ.Labour\n\n\n\n\n\n        & Fishery.\n        Both are residing at Vitava\n        Belapur Road, Bandrapada, \n        Gajanan Nagar, Dist.Thane.\n\n\n\n\n\n        (At present at Yeravade Jail\n        Pune.                                        ...Appellants.\n                            Vs.\n    1. The State of Maharashtra,\n    2. The Prosecutrix,\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 14:30:58 :::\n                                                  2\n\n        aged about 18 years, residing at\n        Kopar Road, Dombivli.                                        ...Respondents.\n\n\n\n\n                                                                                         \n                                    ....\n    Mr. N.V. Pradhan for the Appellant.\n\n\n\n\n                                                                 \n    Dr. F.R. Shaikh, APP  for Respondent No.1.\n\n    CRI.APPEAL N0.1239\/02:\n\n\n\n\n                                                                \n    Prashant G. Koli,\n    aged 19 years, Occ. Business,\n    R\/o.Kalwa Vitawa, Koliwada,\n    (present undergoing sentence in \n\n\n\n\n                                                    \n    Yerawada Central Prison).             ...Appellant.\n                            Vs.          \n    The State of Maharashtra.              ...Respondent.\n                                    ....\n                                        \n    Mr.Milan Desai for the Appellant.\n    Dr. F.R. Shaikh, APP  for the Respondent.\n                                    .....\n             \n\n                                  CORAM : SWATANTER KUMAR, C.J.  & \n                                          DR.D.Y.CHANDRACHUD, J.\n          \n\n\n\n                                              April 16, 2009.\n\n    JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.) :\n<\/pre>\n
                    The   prosecutrix   was   eighteen   and   lived   with   her   parents<\/p>\n
    and three sisters.     The house in which the family resided at Thane<\/p>\n
    was under construction.  The prosecutrix had known Umesh Patil for<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                             3<\/span><\/p>\n
    five months.   Umesh was constructing her house at Thane.   During<\/p>\n
    the course of the construction, the family shifted to Dombivli to reside<\/p>\n
    with the prosecutrix’
\n                        s grandmother.   The case of the prosecution is<\/p>\n
    that Snehal, who was a neighbour, had invited the prosecutrix for the<\/p>\n
    wedding of her brother which was to take place at Khopoli.   On 5th<\/p>\n
    May 2001, the prosecutrix and her mother are alleged to have met<\/p>\n
    Umesh at Thane when he stated that he would hand over the work of<\/p>\n
    construction to another contractor since he had no time on his hands.\n<\/p>\n
    Umesh is alleged to have sought the permission of the prosecutrix’
\n                                                                     s<\/p>\n
    mother to let her accompany him to Khopoli for the marriage.  Umesh<\/p>\n
    is   alleged   to   have     collected   a   bag   containing   the   prosecutrix’
\n                                                                                     s<\/p>\n
    belongings from her home at Dombivli and to have instructed her to<\/p>\n
    meet Sachin Gavate at an assigned place. Sachin was to  accompany<\/p>\n
    her to Vitava.  Sachin and the prosecutrix proceeded to Vitava where<\/p>\n
    Umesh Patil, Prashant Koli, Navnath and Sachin Rao were in a Sumo<\/p>\n
    Jeep.     The   group   proceeded   to   Panvel   Station   where   they   met<\/p>\n
    another girl and Amit Rao.  All of them are alleged to have proceeded<\/p>\n
    to the house of Snehal, where the wedding ceremony of her brother<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                               4<\/span><\/p>\n
    was to take place, between 7 and 7.30 p.m.   After dinner, Umesh is<\/p>\n
    alleged   to   have   told   the   prosecutrix   that   since   Snehal’s house   at<\/p>\n
    Khopoli was full of guests, they should go to Karla where he had a<\/p>\n
    bungalow.  The entire group  then proceeded to Karla and is alleged<\/p>\n
    to   have   halted   at   a   bungalow   by   the   name   of   Yamuna   Niwas,<\/p>\n
    belonging to Umesh.  The bungalow consisted of two bedrooms.  The<\/p>\n
    prosecutrix was allegedly instructed by Umesh to rest in one bedroom<\/p>\n
    whereas the other girl was asked to proceed to a separate bedroom.\n<\/p>\n
    Umesh   Patil   and   Amit   Rao   are   alleged   to   have   entered   the<\/p>\n
    prosecutrix’
\n               s   bedroom   sometime   thereafter.   The   case   of   the<\/p>\n
    prosecution is that Umesh compelled the prosecutrix to remove her<\/p>\n
    clothes under  threat.  The prosecutrix is stated to have removed her<\/p>\n
    clothes except for her under garment which Umesh removed.   The<\/p>\n
    case of the prosecution is that Umesh Patil and Amit Rao raped her<\/p>\n
    repeatedly and also indulged in anal intercourse.  The other accused<\/p>\n
    –     Prashant   and   Sachin   are   similarly   alleged   to   have   raped   the<\/p>\n
    prosecutrix and to have indulged in anal intercourse.  The prosecutrix<\/p>\n
    was   subjected   to   this   ordeal   from   11.30   p.m.   to   4.30   a.m.       The<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                           5<\/span><\/p>\n
    prosecutrix, according to the prosecution, is alleged to have resisted<\/p>\n
    and to have shouted whereupon the girl in the bedroom next door is<\/p>\n
    alleged to have shouted out, requesting the accused to desist.   The<\/p>\n
    prosecutrix is alleged to have fallen asleep after 4.30 a.m.  When she<\/p>\n
    woke up at 7.30 a.m., she had intense pain in the stomach.  By then,<\/p>\n
    all the accused except Navnath, had left.  Navnath is alleged to have<\/p>\n
    informed the prosecutrix that all the others and the girl who was with<\/p>\n
    them   had   left   the   bungalow.     Navnath   summoned   a   doctor   who<\/p>\n
    examined the prosecutrix and gave her some preliminary treatment.\n<\/p>\n
    the prosecutrix is alleged to have been unable to move on 6th  May<\/p>\n
    2001.  On the next day – 7th May 2001 – the prosecutrix, accompanied<\/p>\n
    by Navnath, took an auto to Lonawala Station and then proceeded by<\/p>\n
    train to Dombivli.  She reached home between 4 and 4.30 p.m. on 7th<\/p>\n
    May 2001.\n<\/p>\n
    2.         The   prosecutrix   is   alleged   to   have   complained   about   a<\/p>\n
    recurring pain in the stomach to her mother and when the pain did not<\/p>\n
    subside, a doctor – Dr.Jain – was summoned at about 7 p.m.  Dr.Jain,<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                                6<\/span><\/p>\n
    in turn, gave a note to Dr.Shirodkar to whose Hospital the prosecutrix<\/p>\n
    was taken at about 10 p.m.   Dr.Shirodkar advised that   surgery was<\/p>\n
    necessary   and   accordingly   a   surgery   was   conducted   on   the<\/p>\n
    prosecutrix.  On 7th May 2001, Dr.Shirodkar found that the prosecutrix<\/p>\n
    had   suffered   a   perforation   of   the   terminal   part   of   the   rectum.     An<\/p>\n
    emergency   colostomy   was   performed   involving   a   removal   of   the<\/p>\n
    terminal part of the large intestine from the abdomen so that it could<\/p>\n
    serve   the   purpose   of   a   temporary   anus.     The   prosecutrix   was   in<\/p>\n
    Hospital   until   28th  June   2001.     According   to   the   prosecution,   after<\/p>\n
    several   days   in   the   Hospital,   when   Dr.Shirodkar   had   secured   her<\/p>\n
    confidence, the prosecutrix disclosed to him the incident which had<\/p>\n
    taken place and the names of the accused.  On being informed by the<\/p>\n
    prosecutrix that she had been subjected to rape and anal intercourse,<\/p>\n
    Dr.Shirodkar informed the Police.   The prosecutrix’
\n                                                       s statement was<\/p>\n
    recorded   on   31st  May   2001.     A   supplementary   statement   was<\/p>\n
    recorded on 1st June 2001.  Sachin Gavate was arrested on 3rd June<\/p>\n
    2001.  A chargesheet was initially filed against three of the accused –\n<\/p>\n
    Sachin Rao, Amit Rao and Navnath.  The accused were committed to<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                             7<\/span><\/p>\n
    stand trial before the Additional Sessions Judge at Pune.   Accused<\/p>\n
    Umesh Patil and Prashant were absconding.   Sachin Gavate was a<\/p>\n
    juvenile   offender   and   he   was   transferred   to   the   Juvenile   Court.\n<\/p>\n
    Prashant was arrested on 18th February 2002 at the Sessions Court at<\/p>\n
    Shivaji Nagar, Pune.  Umesh Patil appeared before the High Court on<\/p>\n
    29th January 2002 when he was arrested. Upon the arrest of Umesh<\/p>\n
    and  Prashant,   a   supplementary  chargesheet   was  filed   for   offences<\/p>\n
    punishable under Sections 363, 366, 342, 323, 376(2)(g), 307, 504<\/p>\n
    and 506 read with Section  34 of the Penal Code.\n<\/p>\n
    3.         The   prosecution   adduced   the   evidence   of   thirteen<\/p>\n
    witnesses.     Among   them   was   PW   1   Dr.   M.V.   Shirodkar,   who   had<\/p>\n
    examined the prosecutrix and had informed  the Police upon receiving<\/p>\n
    information from her of the offence.   PW 2 Dr.Nagabhushanam had<\/p>\n
    performed the surgical operation on the prosecutrix.   PW 3 Dr.Jain<\/p>\n
    had examined the prosecutrix and had referred her to Dr.Shirodkar for<\/p>\n
    medical   treatment.     PW   4   and   5   were     Panch   Witnesses.     PW   7<\/p>\n
    Snehal was the friend of the prosecutrix in whose house the wedding<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                                8<\/span><\/p>\n
    had taken place. PW 9 Bendre was the PSI who had arrested some of<\/p>\n
    the accused. PW 10 Nanawade was the PSI who had recorded the<\/p>\n
    FIR.   Dr.Samir Pawar, PW 11 had examined the prosecutrix in the<\/p>\n
    Sassoon Hospital.  PWs 12 and 13 were the Investigating Officers.\n<\/p>\n
    4.          By his judgment dated 17th September 2002, the Additional<\/p>\n
    Sessions   Judge   at   Pune   convicted   Umesh   Patil   (Accused   No.1),<\/p>\n
    Prashant Koli (Accused No.2), Sachin Rao (Accused No.3) and Amit<\/p>\n
    Rao (Accused No.4) for offences punishable under Sections 376(2)<\/p>\n
    (g),   377   and   323   read   with   Section     34   of   the   Penal   Code.     The<\/p>\n
    accused were sentenced to suffer imprisonment for life and to pay a<\/p>\n
    fine of Rs.5,000\/- each for the offence punishable under Section 376<\/p>\n
    (2)(g).   The accused were sentenced to suffer simple imprisonment<\/p>\n
    for ten years and to  a fine of Rs.2,000\/- each in respect of the offence<\/p>\n
    punishable under  Section    377 read  with  Section   34 of  the Penal<\/p>\n
    Code.   Both the sentences were directed to run concurrently.     The<\/p>\n
    fine recovered from the accused was directed to be paid over to the<\/p>\n
    prosecutrix.  Accused Navnath was acquitted of the charge.\n<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                             9<\/span><\/p>\n
    5.         There are three appeals before the Court, namely those by<\/p>\n
    Umesh   Patil   (Accused   No.1),   Prashant   Koli   (Accused   No.2)   and<\/p>\n
    Sachin Rao (Accused No.3).  On behalf of the Appellants, it has been<\/p>\n
    submitted that (i) No offence is disclosed under  Section   376(2)(g)<\/p>\n
    and if at all, an offence would be made out only under Section  377 of<\/p>\n
    the Penal Code; (ii) The conduct of the prosecutrix does not inspire<\/p>\n
    confidence and there are several discrepancies in her deposition; (iii)<\/p>\n
    Accused Amit had pleaded an alibi, but there is no discussion thereon<\/p>\n
    in the judgment of the Trial Court; (iv) The prosecution had failed to<\/p>\n
    examine the girl who is alleged to have accompanied the group to the<\/p>\n
    bungalow   of   Umesh   Patil   at   Karla;   and   (v)   The   doctor   who   had<\/p>\n
    administered medical aid to the prosecutrix in the first instance had<\/p>\n
    not been examined.\n<\/p>\n
    6.         The principal thrust of the submissions before the Court is<\/p>\n
    that there are improbabilities in the case of the prosecution.   It has<\/p>\n
    been submitted that the prosecutrix had known accused Umesh for<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                             10<\/span><\/p>\n
    about five months prior to the date of the alleged incident and she<\/p>\n
    deposed that she had not been accustomed to reside at the house of<\/p>\n
    any friend.  It was submitted that in such a situation, the parents of the<\/p>\n
    girl would not allow her to proceed with a stranger.  Snehal, PW 7, at<\/p>\n
    whose home the wedding was to take place of her brother was not a<\/p>\n
    close friend of the prosecutrix and did not even know   Umesh.   The<\/p>\n
    other   girl   who   had   accompanied   the   group   of   persons   was   not<\/p>\n
    described and the prosecutrix admitted that she had not furnished her<\/p>\n
    name though the Police had so enquired.     On the other hand, the<\/p>\n
    Investigating   Officer,   PW   13   deposed   that   the   other   girl   was   a<\/p>\n
    prostitute and could not be found.   It was submitted that though the<\/p>\n
    other   girl   was   not   traceable,   it   was   a   mystery   as   to   how   the<\/p>\n
    Investigating Officer had traced information about her profession.\n<\/p>\n
    7.          While dealing with the submissions which have been urged<\/p>\n
    on behalf of the Appellants, it would be necessary to advert to the<\/p>\n
    evidence of the prosecutrix, PW 6 – the prosecutrix.  the prosecutrix<\/p>\n
    deposed that she had come to know Umesh Patil about five months<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                              11<\/span><\/p>\n
    earlier   since   he   had   undertaken   the   job   of   constructing   her   family<\/p>\n
    house at Thane.   the prosecutrix had received an invitation from a<\/p>\n
    friend Snehal, PW 7, to attend the wedding of her brother which was<\/p>\n
    to   be   performed   at   Khopoli.     the   prosecutrix   is   alleged   to   have<\/p>\n
    accompanied Umesh Patil to Khopoli together with the other accused<\/p>\n
    Appellants, namely, Prashant Koli and Sachin Rao.  Besides the three<\/p>\n
    accused who are the Appellants before the Court, the group consisted<\/p>\n
    of   Sachin   who   was   a   juvenile   offender,   Amit   Rao,   Navnath   and<\/p>\n
    another girl.   The prosecutrix deposed that the entire group reached<\/p>\n
    Snehal’
\n          s   house  between 7  and 7.30 p.m. and  after  dinner, Umesh<\/p>\n
    suggested that they should proceed to his bungalow at Karla since<\/p>\n
    there were several guests in the house where wedding was to take<\/p>\n
    place.   The prosecutrix has deposed   to the events that transpired<\/p>\n
    between   11.30   p.m.   when   the   group   reached   Karla   and   4.30   a.m.<\/p>\n
    when she fell asleep.  The prosecutrix named the Appellants – Umesh<\/p>\n
    Patil, Prashant Koli and Sachin Rao – among others, as persons who<\/p>\n
    had repeatedly in succession, raped her and subjected her to anal<\/p>\n
    intercourse.     Accused   Umesh   had,   according   to   the   prosecutrix,<\/p>\n
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\n                                               12<\/span><\/p>\n
    inserted   a   candle   in   her   anus   while   he   was   raping   her.     The<\/p>\n
    prosecutrix identified all the three Appellants before the Court.   The<\/p>\n
    prosecutrix and all the three Appellants were together from the time<\/p>\n
    that she met them at Vitava and proceeded thereafter to Khopoli and<\/p>\n
    from there to the bungalow of Umesh at Karla. She was clearly in a<\/p>\n
    position to identify them and has as a   matter of fact identified the<\/p>\n
    Appellants.\n<\/p>\n
    8.          The   nature   of   the   injuries   that   were   sustained   by   the<\/p>\n
    prosecutrix has emerged from the medical evidence on record and<\/p>\n
    inter   alia   from   the   deposition   of   the   medical   witnesses.     After   the<\/p>\n
    incident took place on the night between 5th  and 6th  May 2001, the<\/p>\n
    prosecutrix deposed that she was unable to move on 6th  May 2001.\n<\/p>\n
    On 7th May 2001, she was brought home by Navnath to Dombivli and<\/p>\n
    a   doctor  was   summoned   at   about  7   p.m.     The   doctor  in   question,<\/p>\n
    Dr.Subhash Jain, deposed in evidence as PW 3 and stated that the<\/p>\n
    prosecutrix was complaining of pain in her abdomen and of bleeding<\/p>\n
    from the rectum.  On examining her, PW 3 noted that she had already<\/p>\n
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\n                                               13<\/span><\/p>\n
    been treated earlier by a doctor and since her condition was serious,<\/p>\n
    he advised that she should be admitted to Hospital.  The prosecutrix<\/p>\n
    was thereafter taken to the Hospital of Dr.Shirodkar, PW 1.   PW 1<\/p>\n
    stated  that  upon  examining  her,  he  found  that  the   prosecutrix  was<\/p>\n
    toxic, her pulse rate was high; the abdomen was rigid and there was<\/p>\n
    rebound tenderness all over the abdomen.  An X-ray was taken and<\/p>\n
    an emergency surgery was carried out since it was found that there<\/p>\n
    was  a   perforation   in   the   terminal   part   of   the   rectum.     The   surgery<\/p>\n
    involved the removal of the terminal part of the large intestine to serve<\/p>\n
    the   purpose   of   a   temporary   anal   canal.     The   prosecutrix   was   in<\/p>\n
    Hospital until 28th June 2001.\n<\/p>\n
    9.          PW 1, Dr.Shirodkar, deposed that while the prosecutrix was<\/p>\n
    in the Hospital, he had noticed that she was having what he described<\/p>\n
    as   “funny injuries” and though he had asked her   about them, she<\/p>\n
    had not disclosed anything.   After ten to fifteen days after   surgery,<\/p>\n
    the prosecutrix revealed the entire background of the case to P.W. 1<\/p>\n
    including the incident during the course of which she had been raped<\/p>\n
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\n                                              14<\/span><\/p>\n
    repeatedly   and   had   been   subjected   to   anal   intercourse.     PW   1<\/p>\n
    thereupon informed the Police immediately.   He stated that she had<\/p>\n
    disclosed to him the names of the persons who had participated in the<\/p>\n
    assault.  The Police thereupon visited the Hospital and the statement<\/p>\n
    of the prosecutrix was recorded by PW 13, Sushil Kadam, who was<\/p>\n
    the   API   attached   to   the   Police   Station   in   Lonavala.     A   spot<\/p>\n
    panchanama   was   prepared   (Exh.51).     The   initial   statement   of   the<\/p>\n
    prosecutrix was recorded on 31st  May 2001.   In a case such as the<\/p>\n
    present, the time that has elapsed between the date of   the incident<\/p>\n
    and the  recording of  the  first  statement of  the prosecutrix must  be<\/p>\n
    assessed with reference to her medical condition.     The prosecutrix<\/p>\n
    had suffered serious injuries resulting in a perforation of her intestine.\n<\/p>\n
    An   emergency   surgery   was   performed   on   her,   which   required   her<\/p>\n
    hospitalisation until 28th June 2001. In such a situation, it is natural for<\/p>\n
    the   victim   of   a   serious   sexual   assault   involving   a   gang   rape   and<\/p>\n
    forcible anal intercourse to be traumatised by the incident and by the<\/p>\n
    injuries sustained by her. The injuries in this case were serious.   A<\/p>\n
    realistic view has to be formed of the physical pain endured by the<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                                15<\/span><\/p>\n
    prosecutrix.  Added to that is the social stigma, revulsion and fear of<\/p>\n
    consequences.     The   law   is   not   obivious   to   these   facets.     It   is   but<\/p>\n
    natural that the treating doctor, PW 1 had to gain the confidence of<\/p>\n
    the prosecutrix over a period of time and it is only thereafter that she<\/p>\n
    proceeded to divulge the full details to him.  In the first statement that<\/p>\n
    was  recorded  on  31st  May  2001,  the  prosecutrix referred  to  all  the<\/p>\n
    accused as being involved in the sexual assault on the night between<\/p>\n
    5th and 6th May 2001.  In the first statement, the prosecutrix referred to<\/p>\n
    the accused as having indulged in anal intercourse with her.   In the<\/p>\n
    second statement (Exh.53), the prosecutrix has stated that besides<\/p>\n
    engaging in anal intercourse, the accused had subjected her to rape<\/p>\n
    repeatedly.     The   first   and   the   second   statements   are   recorded<\/p>\n
    proximate in time, barely within a day of each other.  The prosecutrix<\/p>\n
    is evidently not a tutored witness.  The nature of the trauma suffered<\/p>\n
    by   her,   the   serious   injuries   that   were   sustained   and   the   surgical<\/p>\n
    intervention required to rectify the situation must be borne in mind in<\/p>\n
    determining as to whether the prosecutrix should be believed on the<\/p>\n
    point of rape.  The prosecutrix was examined at the Sassoon General<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                            16<\/span><\/p>\n
    Hospital in Pune by P.W. 11 Dr.Samir Pawar whose evidence also<\/p>\n
    confirmed   that   a   colostomy   had   been   performed   on   her.     The<\/p>\n
    prosecutrix disclosed to him that she had been taken to a bungalow<\/p>\n
    near Lonavala where she was threatened and subjected to repeated<\/p>\n
    anal penetrative intercourse.  On examination, PW 11 found that the<\/p>\n
    hymen   was   torn   and   a   PV   examination   could   be   possible.   The<\/p>\n
    findings of the medical examination are consistent both with rape and<\/p>\n
    forcible   anal   intercourse.     The   medical   papers   were   produced   and<\/p>\n
    marked in evidence as Exh.73.   P.W. 2 Dr.Nagbhushanam was the<\/p>\n
    Resident   Medical   Officer   at   the   KEM   Hospital,   Mumbai   where   the<\/p>\n
    prosecutrix was admitted on 14th  November 2001.   The prosecutrix<\/p>\n
    was once again operated upon on 15th November 2001 by Dr.Kashid<\/p>\n
    and was discharged on 2nd December 2001.\n<\/p>\n
    10.        The law in regard to the manner in which the evidence of<\/p>\n
    the   victim   of   a   sexual   assault   should   be   evaluated   has   been<\/p>\n
    elaborated upon by the Supreme Court in Ranjit Harika vs. State of<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:30:58 :::<\/span>
\n                                             17<\/span><\/p>\n
    Assam.1   The Supreme Court has held thus :\n<\/p>\n
               “The Courts must, while evaluating evidence, remain alive
\n               to the fact that in a case of rape, no self-respecting woman<\/p>\n
               would come forward in a court just to make a humiliating
\n               statement   against   her   honour   such   as   is   involved   in   the
\n               commission   of   rape   on   her.     In   cases   involving   sexual
\n               molestation   supposed   considerations   which   have   no<\/p>\n
               material effect on the veracity of the prosecution case or
\n               even   discrepancies   in   the   statement   of   the   prosecutrix
\n               should not, unless the discrepancies are such which are of
\n               fatal nature, be allowed to throw out an otherwise reliable<\/p>\n
               prosecution case.  The inherent bashfulness of the females
\n               and the tendency to conceal outrage of sexual aggression<\/p>\n
               are   factors   which   the   courts   should   not   overlook.   The
\n               testimony   of   the   victim   in   such  cases  is   vital   and   unless<\/p>\n
               there are compelling reasons which necessitate looking for
\n               corroboration   of   her   statement,   the   courts  should   find   no
\n               difficulty to act on the testimony of a victim of sexual assault
\n               alone to convict an accused where her testimony inspires<\/p>\n
               confidence   and   is   found   to   be   reliable.     Seeking
\n               corroboration   of   her   statement   before   relying   upon   the<\/p>\n
               same, as a rule, in such cases amounts to adding insult to
\n               injury.  Why should the evidence of a girl or a woman who
\n               complains   of   rape   or   sexual   molestation   be   viewed   with
\n               doubt, disbelief or suspicious? The court while appreciating<\/p>\n
               the evidence of a prosecutrix may look for some assurance
\n               of her statement to satisfy its judicial conscience, since she
\n               is a witness who is interested in the outcome of the charge
\n               levelled by her, but there is no requirement of law to insist<\/p>\n
               upon corroboration of her statement to base conviction of
\n               an   accused.     The   evidence   of   a  victim   of   sexual  assault
\n               stands   almost   on   a   par   with   the   evidence   of   an   injured
\n               witness and to an extent is even more reliable.   Just as a<\/p>\n
    1 (1998) 8 SCC 635<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span>
\n                                              18<\/span><\/p>\n
                witness who has sustained some injury in the occurrence,
\n                which is not found to be self-inflicted, is considered to be a<\/p>\n
                good witness in the sense that he is least likely to shield the
\n                real culprit, the evidence of a victim of a sexual offence is<\/p>\n
                entitled   to   great   weight,   absence   of   corroboration
\n                notwithstanding.     Corroborative   evidence   is   not   an
\n                imperative component of judicial credence in every case of
\n                rape.   Corroboration as a condition for judicial reliance on<\/p>\n
                the testimony of the prosecutrix is not a requirement of law
\n                but a guidance of prudence under given circumstances.  It
\n                must not be overlooked that a woman or a girl subjected to
\n                sexual assault is not an accomplice to the crime but is a<\/p>\n
                victim   of   another   person’  s   lust   and   it   is   improper   and
\n                undesirable to test her evidence with a certain amount of<\/p>\n
                suspicion,   treating   her   as   if   she   were   an   accomplice.
\n                Inferences have to be drawn from a given set of facts and<\/p>\n
                circumstances   with   realistic   diversity   and   not   dead
\n                uniformity lest that type of rigidity in the shape of rule of law
\n                is   introduced   through   a   new   form   of   testimonial   tyranny
\n                making justice a casualty.   Courts cannot cling to a fossil<\/p>\n
                formula and insist upon corroboration even if, taken as a
\n                whole, the case spoken of by the victim of sex crime strike<\/p>\n
                the judicial mind as probable.”\n<\/p><\/blockquote>\n
    These   principles   have   been   reiterated   in  Rajoo   vs.   State   of   M.P.2<\/p>\n
    The Supreme Court has observed that  the broad principle is that an<\/p>\n
    injured witness was present at the time when the incident happened<\/p>\n
    and  ordinarily   such  a  witness  would  not  lie   as  to  the  name   of   the<\/p>\n
    actual assailant.   But there is no presumption that the statement of<\/p>\n
    2 2008 AIR SCW 8165<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span>
\n                                                19<\/span><\/p>\n
    such   a   witness   is   always   correct   or   without   an   ambiguity   or<\/p>\n
    exaggeration.   Obviously such   a statement cannot be regarded as<\/p>\n
    reflective of gospel truth.\n<\/p>\n
    11.          In State of Punjab vs. Ramdev Singh,3  the Supreme Court<\/p>\n
    held thus:\n<\/p>\n
                 “14.     It   is   well   settled   that   a   prosecutrix   complaining   of
\n                 having   been   a   victim   of   the   offence   of   rape   is   not   an<\/p>\n
                 accomplice after the crime.  There is no rule of law that her
\n                 testimony   cannot   be   acted   upon   without   corroboration   in<\/p>\n
                 material particulars.  She stands on a higher pedestal than
\n                 an injured witness.  In the latter case, there is injury on the<\/p>\n
                 physical form, while in the former, it is both physical as well
\n                 as psychological and emotional.   However, if the court of
\n                 facts finds it difficult to accept the version of the prosecutrix
\n                 on   its   face   value,   it   may   search   for   evidence,   direct   or<\/p>\n
                 circumstantial,   which   would   lend   assurance   to   her
\n                 testimony.     Assurance,   short   of   corroboration,   as<\/p>\n
                 understood in the context of an accomplice would do.”\n<\/p><\/blockquote>\n
    12.          In   the   present   case,   not   merely   is   the   prosecutrix   in   the<\/p>\n
    position of an injured witness in the sense that she was subjected to a<\/p>\n
    violation of the dignity of her  being, but she is in every sense of the<\/p>\n
    expression, an injured witness.  The nature of the injuries which were<\/p>\n
    sustained by the prosecutrix would leave no manner of doubt that she<\/p>\n
    3 (2004) 1 SCC 421<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span>
\n                                             20<\/span><\/p>\n
    was   subjected   to   a   serious   sexual   assault.     In   recapitulating   the<\/p>\n
    events   which   took   place,   there   may   be   minor   contradictions   or<\/p>\n
    omissions,   but   these   in   the   present   case,   are   not   sufficient   to<\/p>\n
    disbelieve the over all veracity of the version of the incident which she<\/p>\n
    portrays and of her identification of the accused. In  State of Punjab<\/p>\n
    vs. Ramdev Singh (supra), the Supreme Court held thus:\n<\/p>\n
                “If   the   prosecution   has  succeeded  in   making   out   a
\n                convincing case for   recording a finding as to the accused<\/p>\n
                being guilty, the court should not lean in favour of acquittal
\n                by giving weight to irrelevant or insignificant circumstances<\/p>\n
                or by resorting to technicalities or by assuming doubts and
\n                giving   benefit   thereof   where   none   reasonably   exists.     A
\n                doubt, as understood in criminal jurisprudence, has to be a
\n                reasonable doubt and not an excuse for a finding in favour<\/p>\n
                of acquittal.   An unmerited acquittal encourages wolves in
\n                the society being on the prowl for easy prey, more so when<\/p>\n
                the victims of crime are helpless females or minor children.
\n                The courts have to display a greater sense of responsibility
\n                and   to   be   more   sensitive   while   dealing   with   charges   of<\/p>\n
                sexual   assault   on   women,   particularly   of   tender   age   and
\n                children.”\n<\/p><\/blockquote>\n
    Counsel appearing on behalf of the Appellants has sought to urge that<\/p>\n
    the conduct of the prosecutrix in accompanying accused Umesh for<\/p>\n
    the wedding in the family of PW 7   would demonstrate that she had<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span>
\n                                            21<\/span><\/p>\n
    willingly   proceeded   with   the   accused.     Even   if   as   the   evidence<\/p>\n
    suggested, the prosecutrix had willingly travelled with the accused to<\/p>\n
    the wedding and thereafter to the bungalow at Lonavala, it would be<\/p>\n
    preposterous to presume that a woman in her position would consent<\/p>\n
    to a sexual assault to which she was inflicted.\n<\/p>\n
    13.        Counsel   appearing   on   behalf   of   the   Appellants   has<\/p>\n
    submitted  that   the   prosecution   has  failed  to  examine  the  other  girl<\/p>\n
    who had accompanied the group to Lonavala.  This, in our view, is not<\/p>\n
    a circumstance, which casts doubt either on the truthfulness of PW 6<\/p>\n
    or of the case of the prosecution.  P.W. 13, who was the Investigating<\/p>\n
    Officer, deposed that he has made an enquiry and a search for the<\/p>\n
    other girl who was with the prosecutrix at the time of incident and has<\/p>\n
    mentioned the fact in his case diary, but she could not be traced and<\/p>\n
    she was a prostitute.  The Investigating Officer denied the suggestion<\/p>\n
    that  both the prosecutrix and that girl were prostitutes.  The evidence<\/p>\n
    of the prosecutrix, PW 6, is trustworthy and inspires confidence.     It<\/p>\n
    would   be   impermissible   both   in   law   and   on   first   principles   of<\/p>\n
    appreciation of evidence to disregard her evidence merely because<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span>
\n                                         22<\/span><\/p>\n
    the   prosecution   has   not   examined   the   other   girl   who   had<\/p>\n
    accompanied the group. Similarly, the failure to examine the doctor<\/p>\n
    who had initially imparted medical treatment to the prosecutrix is not a<\/p>\n
    circumstance which  would dilute  the case of the  prosecution.   The<\/p>\n
    evidence of PW 6 is corroborated by PW 7 Snehal who deposed that<\/p>\n
    on 5th May 2001, the prosecutrix had come together with all the three<\/p>\n
    accused Appellants and the other accused to her home at Khopoli in<\/p>\n
    connection with the marriage of her brother which was to take place.\n<\/p>\n
    PW 7 deposed that after dinner, they had left stating that they would<\/p>\n
    come back on the next day for the marriage.   However, on the next<\/p>\n
    day, the others attended the marriage but not the prosecutrix.\n<\/p>\n
    14.       The   report   of   the   Regional   Forensic   Science   Laboratory<\/p>\n
    (Exh.88) was that the blood group of the prosecutrix was “B”.   Two<\/p>\n
    bedsheets recovered from the room where the prosecutrix had been<\/p>\n
    assaulted, had traces of semen of blood group “A” and “B” and ABO<\/p>\n
    antigens and AO antigens.   The blood  group of  accused Appellant<\/p>\n
    Amit is “A”.  The Learned Trial Judge has in the circumstances, relied<\/p>\n
    upon this piece of corroborative evidence.\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span>
\n                                               23<\/span><\/p>\n
    15.         The accused Appellant Sachin Rao   set up a plea of alibi.\n<\/p>\n
    DW 3 Datta deposed that on 4th May 2001 accused Sachin was with<\/p>\n
    him and had proceeded together with him and his wife to Pimpalwadi<\/p>\n
    to   attend   the   marriage   of   his   relative.       The   marriage   was   to   be<\/p>\n
    solemnized on 5th  May 2001.   Certain photographs of the marriage<\/p>\n
    were sought to be relied upon and the witness deposed that he had<\/p>\n
    returned together with accused Sachin on 6th  May 2001 at 9 a.m. In<\/p>\n
    the  course  of   the   cross-examination,   the   witness   admitted   that   the<\/p>\n
    photographs did not show the date on they were taken nor was any<\/p>\n
    date mentioned on the negatives.  The witness admitted that he had<\/p>\n
    not disclosed to the Police until the date of the deposition that the<\/p>\n
    accused was with him on 4th  and 5th  May 2001.   Finally, the witness<\/p>\n
    also   admitted   that   the   photograph   was   not   a   photograph   of   the<\/p>\n
    marriage ceremony itself.   In these circumstances, the plea of alibi<\/p>\n
    was completely untrustworthy and could not be believed.\n<\/p>\n
    16.         For   all   these   reasons,   we   are   of   the   view   that   the<\/p>\n
    prosecution has established its case beyond reasonable doubt.  The<\/p>\n
    conviction   under   Section   376(2)(g)   and   Section   377   of   the   Penal<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span>
\n                                             24<\/span><\/p>\n
    Code   does   not   suffer   from   any   infirmity.     Considering   the   heinous<\/p>\n
    nature of the crime and the circumstances in which the prosecutrix<\/p>\n
    was subjected to a sexual assault by all the three accused Appellants<\/p>\n
    between 11.30 p.m. on the night of 5th May 2001 and 4.30 a.m. on 6th<\/p>\n
    May 2001 and was subjected to rape and anal intercourse, we are<\/p>\n
    affirmatively of the view that the sentence which was imposed upon<\/p>\n
    the Appellants meets the ends of justice and does not call for any<\/p>\n
    interference.  The appeals shall accordingly stand dismissed.\n<\/p>\n
                                                       CHIEF JUSTICE<\/p>\n
                                               Dr.D.Y. CHANDRACHUD, J.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:30:59 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Umesh G. Patil vs The State Of Maharashtra on 16 April, 2009 Bench: Dr. D.Y. Chandrachud 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1094 OF 2002 WITH CRIMINAL APPEAL NOS.1151 & 1239 OF 2002 CRI.APPEAL N0.1094\/02: Umesh G. Patil, R\/o.Vitawa, Koliwada, Thane. …Appellant. Vs. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-64726","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUmesh G. Patil vs The State Of Maharashtra on 16 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/umesh-g-patil-vs-the-state-of-maharashtra-on-16-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Umesh G. 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