Crl.A. No.384/2000 Page 1 of 38 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 384/2000 Decision on : 5th May 2009 PANKAJ CHAUDHARY & ORS. ..... Appellants Through:Mr.Dharmender Arya with Mr.Sunil Bainsla and Mr.Sunil Kumar, Advocates. versus STATE(GOVT.OF NCT OF DELHI) ..... Respondent Through:Mr.Pawan Bahl, APP with SI Inderjeet, PS Hauz Khas. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes JUDGMENT 05.05.2009 S. MURALIDHAR, J.(open court) Introduction 1. This case is an instance of how a false criminal case, instituted in connivance with obliging police officials, can virtually ruin the lives of innocent persons. The four appellants have been facing criminal proceedings for the offence of gang rape for over twelve years. The orders passed by this Court in appeal and the facts brought forth by some conscientious senior officers of the police have helped unravel the whole truth and bring an end to the misery of the appellants. The process has Crl.A. No.384/2000 Page 2 of 38 however taken a tortuously long time of twelve years, a period precious and unrecoverable for the appellants. This case also demonstrates the value of the right of appeal and the need for self corrective processes within the police and the judiciary. The „brooding sense of injustice‟ brought about a false accusation that has tormented the appellants for nearly twelve years should finally be assuaged. 2. This appeal is directed against a judgment dated 23rd May 2000 passed by the learned Additional Sessions Judge (ASJ) in Sessions Case No. 147 of 1999 arising out of the FIR No. 559 of 1997 registered at Police Station (P.S.) Hauz Khas under Section 376/34 IPC. By the said judgment the learned ASJ convicted the four appellants for the offence of gang rape under Section 376 (2) (g) IPC. The appeal also challenges the order dated 24th May 2000 passed by the learned ASJ sentencing each of the appellants to ten years‟ rigorous imprisonment (RI) and to pay a fine of Rs. 5000/- each and in default of payment of to undergo a further RI of one year. Case of the prosecution 3. According to the prosecution, the four appellants who were living in the neighbourhood of the prosecutrix (PW 1) at the Shaheed Bhagat Singh Jhuggi Camp, Katwaria Sarai, entered her jhuggi about 9 pm on 28th July 1997 and demanded a bidi from her. She refused to give them any bidi. Crl.A. No.384/2000 Page 3 of 38 Thereafter they demanded water which she again refused. She alleged that thereafter the appellants switched off the electricity and appellant Gunjesh caught hold of her hands and the other three accused tore out her clothes and committed rape on her. The prosecutrix alleged that she raised an alarm and fell unconscious thereafter. Her mother Bashira Khatoon (PW3) came there on hearing the alarm and saw the four appellants coming out of the jhuggi. PW 3 found the prosecutrix lying unconscious inside the jhuggi. It is stated that the police control room (PCR) van took the prosecutrix to the All India Institute of Medical Sciences (AIIMS) Hospital, where her statement was recorded by the police. Thereafter the FIR No.559 of 1997 was registered. 4. According to the prosecution, information was received in the Police Control Room (PCR) at around 9.30 pm about a quarrel at the Shaheed Bhagat Singh Jhuggi and was noted down in a daily diary (D.D. No. 26- A). Sub Inspector (SI) Jai Bhagwan (PW 7), who was the Investigating Officer (IO), along with Constable Khushi Ram (PW 4) went to the place of occurrence. They were told that the prosecutrix had already been taken to AIIMS. After reaching the AIIMS Hospital SI Jai Bhagwan sought the permission of the doctor on duty to record the statement (ruqqa) of the prosecutrix. By this time at around 11.45 pm the prosecutrix was medically examined by Dr.Monika. The medico legal certificate (MLC) (marked as Ex.PW6/A) records that the prosecutrix informed the doctor Crl.A. No.384/2000 Page 4 of 38 that she was assaulted by four men and raped by three of them. The doctor recorded that there were “no external signs of injury on the face, breasts, abdomen and upper limbs.” There were “bruises of 4x4 cm on medial aspects of both thighs.” The blouse of the prosecutrix was found torn in the back side along the left sleeve. However, since she did not have spare clothes, the clothes she was wearing could not be sealed. Three slides were made and handed over to the police. 5. After the doctor declared her fit SI Jai Bhagwan recorded the statement of the prosecutrix at around 2 am and thereafter sent the ruqqa with Constable Khushi Ram to the Police Station where Head Constable Raghuvir Singh (PW 2) registered the FIR No. 559 of 1997 against the four accused. Constable Khushi Ram then took the FIR and the original ruqqa back to SI Jai Bhagwan at AIIMS, by which time according to SI Jai Bhagwan the duty constable produced before him “2 sealed parcels containing petticoat and slide of the prosecutrix and a sample seal which I seized vide memo Ex.PW4/A.” According to SI Jai Bhagwan he, Constable Khushi Ram and the prosecutrix then proceeded to the place of occurrence where he prepared a site plan (Ex.PW7/B). He recorded a supplementary statement of the prosecutrix as well as the statement of her mother PW3. He and Khushi Ram then returned to P.S.Hauz Khas and deposited the seized articles in the malkhana. The next day, i.e. 29th July 1997 SI Jai Bhagwan accompanied by Constable Mohan Singh (PW 5) Crl.A. No.384/2000 Page 5 of 38 reached the jhuggi of the prosecutrix and on her pointing out arrested the four appellants. They were then taken to AIIMS where they were subjected to medical examination. The doctor on clinical examination opined that there was nothing to suggest that any of the said accused persons were incapable of performing sexual intercourse. The blood sample and the slide of smegma of the above named three accused persons were seized and the case property was deposited in the malkhana from where it was sent to the Forensic Sciences Laboratory (FSL). After committal of the case to the Court of Sessions, a charge under Section 376 (2) (g) IPC was framed against the appellants on 25th August 1999. They pleaded not guilty and claimed trial. Proceedings before the trial court 6. Seven witnesses were examined for the prosecution. In their statements under Section 313 CrPC, the appellants denied the incriminating circumstances put to them. They stated that the prosecutrix was indulging in prostitution and that earlier also complaints had been lodged against the prosecutrix and certain other women in that regard. It was the case of the appellants that they had been falsely implicated. They examined two defence witnesses, Mahanand Jha (DW 1) and Sharabuddin (DW 2). 7. On behalf of the accused persons, it was argued before the trial court that the MLC of the prosecutrix belied her allegation that she had been Crl.A. No.384/2000 Page 6 of 38 raped. The FSL report also did not bear this out. It was argued that if the prosecutrix indeed fell unconscious it could not be said that she was aware as to who had committed rape on her. Constable Mohan Singh in whose presence the accused persons were arrested and thereafter sent for medical examination could not identify them in court. The fact that the prosecutrix was indulging in prostitution was proved by the evidence of DW1 Mahanand Jha and DW2 Sharabuddin. They confirmed that complaints had been lodged earlier against her and certain other women by the residents of the jhuggi camp. Judgment of the trial court 8. The learned trial court held that the testimony of the prosecutrix (PW1) was corroborated by her mother PW2 who had stated that she had seen the four accused persons coming out of the jhuggi. According to the trial court, the testimony of the prosecutrix was corroborated by the MLC which recorded that her blouse was torn. The submission of the accused that she was not injured was belied by the presence of bruises measuring 4 x 4 cm on both her thighs. The argument that since she was unconscious and her mother too found her in that state and therefore the prosecutrix could not have known who committed the rape was belied by the MLC which recorded that she was conscious and coherent. The trial court concluded that since the examination of the prosecutrix at AIIMS took place at about 11.45 p.m., and she was raped at around 9 pm, it was Crl.A. No.384/2000 Page 7 of 38 possible that she could have regained consciousness between 9 p.m. and 11.45 p.m. Since the accused Pankaj Chaudhary, Qasim and Jai Lal admitted that they had been medically examined at AIIMS, the fact that the Constable Mohan Singh PW 5 who took them for medical examination did not identify them was to no avail. The accused persons had failed to prove that they had lodged any complaint against the prosecutrix. It was opined by the trial judge that “the prosecutrix was having no axe to grind against the accused persons for falsely implicating them in this case.” Relying upon the judgment of the Supreme Court in the State of Rajasthan v. Noore Khan 2000 (3) Supreme Today 70, the learned trial court held that there was no reason to disbelieve the testimony of the prosecutrix and that she had no reason to implicate only them for this offence. Although accused Gunjesh had not committed the rape, by virtue of the proviso to Section 376(2)(g) IPC he was liable to be convicted for the offence. As far as the sentence was concerned, the learned trial court held that since the appellants were involved in a heinous offence, each of them should be sentenced to ten years‟ RI. Orders in appeal 9. The present appeal was admitted by this Court on 10th July 2000. An application was filed by the appellants under Section 391 CrPC praying that the additional evidence should be permitted to be led by them in their defence during the pendency of the appeal. In this application it was urged Crl.A. No.384/2000 Page 8 of 38 that on 28th July 1997 at about 9.20 p.m., the prosecutrix along with three other women, was in police custody having been arrested in FIR No. 558 of 1997 under Section 160 IPC registered at P.S: Hauz Khas. If indeed she was in police custody at about 9.20 p.m. on 28th July 1997 the question of the appellants having committed the rape on her at around 9 p.m. on that day did not arise. Copies of both FIRs were enclosed with the said application. By an order dated 12th January 2001 this Court opined that “In this case, additional defence evidence sought to be led, is copy of the FIR and the charge-sheet of the same police station. If it is true it would go to the root of the matter and thus essential for the justice here in the case.” The application was accordingly allowed and the trial court was directed to record additional evidence in defence sought to be produced by the defence. The prosecution was given an opportunity to cross-examine the witnesses produced in defence. Additional Evidence 10. Pursuant to the aforementioned directions, the trial court recorded the additional evidence. On 16th March 2001, the deposition of Asst. Sub Inspector (ASI) Prem Chand (DW3 ) was recorded. On 30th March 2001, the evidence of Head Constable (HC) Ratan Lal (DW4) and Constable Sagar Chand (DW5), Dharamvir Singh (DW6 ) and SI Sher Mohammed (DW7 ) were recorded. DW3 got the original rukka on the basis of which FIR No. 558/97 was registered marked as Ex. DW3/A. The personal bond Crl.A. No.384/2000 Page 9 of 38 of the prosecutrix which was marked as Ex. DW3/B and the jama talashi (search memo) was marked as Ex. DW3/C. The DD entry No.73B recorded in the police station by ASI Prem Chand was marked as Ex. DW3/D. DW4 HC Ratan Lal got DD entry No.67B which was made by him on 28th July 1997 marked as Ex. DW4/A. DD No. 25A which was also made by him on the same day regarding registration of the FIR No.558/97 was got marked as Ex.DW4/B. DW6 Dharamvir Singh got marked copy of the report of the Joint Commissioner (Crime & Traffic) dated 7th November 2000 and the connected notes on file as Ex. DW6/A. SI Sher Mohammed (DW7) brought the record of the PCR for 28th July 1997. 11. After the recording of the additional evidence this Court by its order dated 22nd May 2001 directed the release of the appellants on bail. At the next hearing this Court was informed by the learned APP for the State that an enquiry had been conducted by the Joint Commissioner of Police and appropriate action would be taken in “due course.” The order dated 24th September 2001 passed by this Court reads as under: “Crl.A. 384/2000 On the last date of hearing, learned APP for the State had stated that enquiry had been conducted in the matter by the Joint Commissioner of Police and appropriate action in the matter would be taken in due course. A copy of the enquiry report and action by the Joint Commissioner was ordered to Crl.A. No.384/2000 Page 10 of 38 be placed on record. The same has not been done. Let the same be now positively filed within four weeks. Renotify on 2nd November, 2001.” 12. Thereafter on 4th December 2001 the Court recorded: “Crl. A. 384/2000 Learned APP for the State submits that the matter has been examined by the senior officers and the departmental action has been approved by the Commissioner of Police. List the appeal for hearing in due course.” Submissions of Counsel 13. Mr. Dharmender Arya, Mr.Sunil Bainisla and Mr. Sunil Kumar, learned Advocates appearing for the appellants submitted that the appellants have been falsely implicated in this case as is evident from the additional evidence recorded pursuant to the orders passed by this court. It is submitted that the evidence discloses that at around 9.20 p.m. on 28th July 1997 the prosecutrix was in fact in the custody of the police in FIR No. 558 of 1997, and therefore there was no question at all of the appellants having committed rape on her. Narrating the sequence of events, it is pointed out by the learned counsel that the information was received at P.S.Haus Khas about a quarrel at the jhuggis involving sex workers around 7.30 p.m. DD entry No. 67B was written at around 8.05 p.m. Thereafter ASI Prem Chand (DW 3) visited the spot with a female Crl.A. No.384/2000 Page 11 of 38 constable Ms.Topo and a male constable Sagar Chand (DW5). DW 3 drew up a rukka on the spot at 8.50 p.m., and sent it to the PS with DW 5 police station where a DD entry as well as the FIR was registered at 9.20 p.m by Head Constable Ratan Lal (DW 4). DW 5 then left the police station taking with him the original ruqqa and the FIR and reached Katwaria Sarai bus stop where DW 3 is alleged to have been waiting, and thereafter returned to the police station only at 10.20 p.m. as is evidenced by DD entry No.73B. The DD entry No.25A shows that the FIR 558 of 1997 was registered only at 9.20 p.m. The arrest and search memos and the bail bonds could have been drawn up only thereafter. The policemen (DWs 3 and 4) returned to the PS only at 10.20 pm. Therefore the prosecutrix was in the custody of the police at least till around 10 pm. 14. It is pointed out that FIR No. 559 of 1997 it was preceded by DD entry No.26A recorded at P.S. Hauz Khas. At that stage the PCR was only informed that there was a quarrel and not of any rape having been committed. Although the rape is alleged to have been committed at around 9.00 p.m. on 28.7.1997, and the prosecutrix was alleged to have been taken to AIIMS even before SI Jai Bhagwan could reach there at around 9.30 pm. The medical examination of the prosecutrix took place only at 11.45 pm on 28.7.1997. The FIR in respect thereof was registered only at 3.15 a.m. on 29.7.1997. Considering that AIIMS was only 7 kilometers away from the scene of occurrence, the delay was unexplained. Although Crl.A. No.384/2000 Page 12 of 38 the prosecutrix stated that her clothes were torn out by the accused at the time of rape, her medical examination showed that only the blouse was torn along the back of the left sleeve and her clothes could not be sealed as the prosecutrix did not have any extra clothes. This belied the statement that the sealed clothes along with the slides were seized by SI Jai Bhagwan from the duty constable at the hospital and deposited by him at the police malkhana as soon as he reached there in the early hours of 29.7.1997. No such clothes were produced during the trial. The learned counsel also pointed out that the presence of smegma on the three accused persons who were medically examined also showed that they had not recently indulged in any sexual activity. The FSL report only showed that the semen stains were found on the petticoat of the prosecutrix and that this matched the blood group of the accused Jai Lal. But this solitary circumstance could not be said to prove the offence of rape. 15. Learned counsel for the appellants point out that the facts concerning FIR No.558 of 1997 registered at the same police station against the prosecutrix under Section 160 IPC were deliberately suppressed by the prosecution during the trial of the present case. Although the charge sheet in FIR No.558 of 1997 was readied on 30th July 1997 itself it was filed in the court only on 8th October 1998. It is alleged that whole prosecution against the appellants was mala fide and that since they had protested against the running of the prostitution racket in the Shaheed Bhagat Singh Crl.A. No.384/2000 Page 13 of 38 Jhuggis by the prosecutrix and certain other women and this case was deliberately foisted on them by the local police. The learned counsel have placed on record the copies of the written representations dated 21st July 1997 and 1st May 1996 written by the residents of the Shaheed Bhagat Singh Jhuggi Camp, protesting against the running of the prostitution racket. These representations bear the stamp of the Hauz Khas Police Station in acknowledgment of the receipt thereof. It is submitted that the police had deliberately kept back this material also from the trial court and that this would have clearly proved the fact of previous complaints having been made by the jhuggi dwellers which included some of the appellants. In any event both DW 1 and DW 2 had categorically stated that the prosecutrix was involved in prostitution and this evidence was ignored by the learned trial court. The reports of the Joint Commissioner of Police as well as the DCP, Vigilance have substantiated the submissions of the appellants that the case against them was a false one. 16. Mr. Pawan Bahl, the learned APP submits that the evidence of DWs 3 to 5 showed that although the prosecutrix was arrested on the spot, she and the other women arrested were released at around 8.50 pm on 28th July 1997 upon furnishing their bail bonds and even before the ruqqa was sent by DW 3 to the P.S. for registration of the FIR. He then refers to the evidence of DW4 HC Ratan Lal, who stated that he telephonically informed ASI Prem Chand (DW3) about the FIR number which was Crl.A. No.384/2000 Page 14 of 38 written on the bail bond furnished by one of the women arrested along with the prosecutrix and that this telephonic call took place at around 8.52 p.m. According to Mr.Bahl the evidence of DW 3 that he left the spot at around 8.52 pm after releasing the women after taking their bail bonds should be believed. 17. It is urged by Mr. Bahl that the report of the Joint Commissioner (Crime & Traffic) Ex. DW6/A should not be relied upon by this Court because it was merely an opinion of one police officer. He refers to certain observations of the Supreme Court in the decisions in Sham Kant v. State of Maharashtra 1992 Suppl. (2) SCC 521 and T.T. Antony v. State of Kerala 2001 II AD (Crime) SC 513. According to him, the subsequent inquiry report submitted in December 2001 by Shri S.K. Gautam, Deputy Commissioner of Police also should not be referred to by this Court since that was not part of the evidence in the case. Mr. Bahl refers to the written submissions of the State where the following three factors are pointed out as proving the case of the prosecution: “C. Corroborative evidence. (i) MLC of the prosecutrix Ex PW 6A shows injury `Bruises on 4 x 4 cm on medial aspects of both thighs‟. `Blouse torn along the back of the (L) sleeve. (The injury found could be possible by use of force). (ii) FSL report Ex PW7/G shows semen stains of `B‟ group on the petticoat of the prosecutrix, which Crl.A. No.384/2000 Page 15 of 38 matches with the blood `B‟ group on the petticoat of the prosecutrix, which matches with the blood of `B‟ group of accused Jailal. (iii) PW-3 Bashira Khatoon mot her of the prosecutrix saw all the accused persons coming out of the house of prosecutrix after the alleged occurrence.” Sequence of events on the evening of 28th July 1997 pertaining to FIR 558 of 1997 18. The most crucial aspect of the present case is about the sequence of events that took place on the evening of 28th July 1997. The incident of quarrel involving sex workers at the Shaheed Bhagat Singh Jhuggi beginning at around 7.30 pm on 28th July 1997 was first reported to PS Hauz Khas by telephone by an unidentified caller. DD entry No.67B of 28th July 1997 at PS Hauz Khas records that at 8.05 pm, an unidentified person had informed that in the Shaheed Bhagat Singh Jhuggi Camp “a lady is quarreling.” The entry records that the information received on telephone, was registered in the rojnamcha, and the copy of the report was handed over to ASI Prem Chand (DW 3) who along with Constable Sarla Topo and Constable Sagar Chand (DW 5) left for the place of occurrence. The ruqqa drawn up by SI Prem Chand also indicates the time of the occurrence as 7.30 p.m. on 28th July 1997. The ruqqa records that when he reached the place i.e., at “Aruna Asaf Ali Shaheed Bhagat Singh Road” there was a large crowd of people present on the road and women “were hurling filthy language with loud voices.” The ASI with the two Crl.A. No.384/2000 Page 16 of 38 constables brought under control four women including the prosecutrix. It was recorded that the above named women were hurling abuses openly on the common road and obstructing the movement of the people and thus had committed the offence under Section 160 IPC (affray). The ruqqa records that the date and time of the sending of the report was 8.50 p.m. Significantly, this ruqqa written by DW 3 himself states that he is sending it to the PS with DW 5 and that he is staying back for continuing investigations. It also makes no mention of DW 3 having already arrested the four women, or having already drawn up