Crl.A.No.171/2009 Page 1 of 34 IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. A. 171/2009 Date of pronouncement 11th August, 2009 # Mohinder Singh Bhatti .... Appellant Through : Mr. K.B. Rohatgi, Advocate. Versus STATE (NCT OF DELHI) .... Respondent Through : Mr. Lovkesh Sawhney, APP for the State. CORAM: HON’BLE MR. JUSTICE G.S. SISTANI 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 the Digest? Yes G.S. SISTANI, J. 1. The present appeal is directed against the judgment dated 13.01.2009 and order on sentence dated 17.01.2009, passed by the learned Additional Sessions Judge, Delhi, in FIR No. 37/07, PS Khajuri Khas, under section 376, Indian Penal Code, 1860 (hereinafter referred to as, “IPC”). By virtue of the said judgment, the appellant was convicted under section 376, IPC and sentenced to Rigorous Imprisonment (hereinafter referred to as, “RI”)for a period of seven (7) years with a fine of Rs.5,000/-. In default of the payment of fine, the said appellant was directed to undergo a further Simple Imprisonment (hereinafter referred to as, “SI”) for a period of six (6) months. The appellant was also sentenced to undergo RI for a period of six (6) months and a fine Crl.A.No.171/2009 Page 2 of 34 of Rs. 500/- under section 506, IPC. In default of the payment of fine, the appellant was directed to undergo SI for a period of three (3) months. 2. The facts of the case as noticed by the learned Trial Court, briefly stated are. 3. On 20.01.2007 at about 3:07 p.m., an information of commission of rape was received by the Duty Officer of Police Station Khajuri Khas, through Constable Satbir- No.1910, PCR. On receipt of this information, ASI Sunita along with ASI Rajinder and lady Constable Lakshmi reached House No.1502, the alleged house of the appellant. On reaching there, the victim, her mother (Sudha), and one Smt. Pushpa Chamoli met them. The SHO reached at the spot and Crime team was informed. The victim, her mother and Smt. Chamoli along with the police officials went to the house of appellant, Mohinder, but he was not found present at his house. Thereafter, the police officials took the victim to the police station Khajuri Khas, where her statement was recorded. Thereafter, the victim was taken to GTB Hospital, she was got medically examined and MLC bearing No.C-260/07 was obtained. On the basis of the statement of the victim, and in view of the opinion of the Doctor on the MLC, the present case was registered. Investigation was undertaken, site plan was prepared, photographs of the place of occurrence were taken and the appellant was arrested on 26.01.2007. Personal search of the appellant was got done, the disclosure statement of the appellant was recorded, and one bed sheet was recovered at his Crl.A.No.171/2009 Page 3 of 34 instance. The appellant was medically examined, blood sample was taken, however, the appellant failed to give his semen sample. On 07.02.2007, statement of the victim was recorded under Section 164, Cr.P.C. On 13.02.2007, TIP of the appellant was scheduled to be fixed, but the appellant refused to join the proceedings. The samples were sent to the FSL and eventually, the appellant was sent for trial wherein he pleaded not guilty. Post trial, the appellant was found guilty of the offence under section 376, IPC read with section 506, IPC. 4. Learned counsel for the appellant submits that the learned trial court has gravely erred in overlooking vital admitted facts. It is contended that the evidence of the victim is neither reliable nor trustworthy, and even otherwise there are vital discrepancies in the statement made by the victim (PW-1) under Section 161 of the Cr.P.C.; statement recorded under Section 164 of the Cr.P.C.; as well as the statement made by her in evidence before the Court. 5. It is contended by the learned counsel for the appellant that the victim did not name the appellant before the Doctor, who had recorded the MLC nor was the appellant named at the time of recording of the statement of the victim under Section 164 of the Cr.P.C. Learned counsel submits that according to the statement of the prosecutrix (victim, PW-1), at the time of commission of crime, she did not know the name of the appellant which she admittedly learnt after many days had elapsed since the day of the incident and that too because the people were addressing Crl.A.No.171/2009 Page 4 of 34 the appellant by that name, and as such, this is a case of mistaken identity. 6. Learned counsel for the appellant has contended that the appellant has been falsely implicated by the victim, as she was known to extract money from persons. It is also contended that the age of the prosecutrix has not been established by any cogent or reliable evidence. Besides, the mother of the victim has admitted that she cannot tell the date, month and year of the birth of her children. 7. Learned counsel has contended that the story, as unfolded by the victim, is altogether improbable. Learned counsel submitted that even if the testimony of PW-1 is believed, the only case which is made out against the appellant is of attempt to rape falling under Section 354 of the IPC and not under Section 376 of the IPC. It is contended that even according to the prosecutrix, the act of inter-course was never performed inasmuch as the appellant put his penis in her place of passing urine, she shouted, which scared the appellant and whereafter the appellant immediately left her and ran away. 8. Learned counsel for the appellant submits that PW-4 is only a chance witness. Learned counsel for the appellant further contended that the salwar produced as evidence before the Court and alleged to have been worn by the prosecutrix at the time of the commission of crime did not belong to the victim, inasmuch as the same has been observed by the learned trial court itself. He submits that the salwar is inadmissible in evidence and contrarily Crl.A.No.171/2009 Page 5 of 34 the trial court has drawn an adverse inference against the appellant with regard to the presence of human semen found on the salwar. It is submitted that no other article, having traces of human semen, has been exhibited. 9. Learned counsel further contends that the scientific evidence does not support the case of the prosecution. He submits that on medical examination, hymen was found intact and no injury was found on the body of the victim. Merely because semen was found in the vagina, the same cannot connect the appellant to the crime as the sample of semen of the appellant was not taken, which duly finds mention in the MLC. Learned counsel further submits that finding of semen on the bed-sheet cannot also support the case of the prosecution as it has been wrongly held that the bed-sheet was recovered at the instance and on the disclosure statement of the appellant. Counsel further submits that in view of the fact that the act was not completed, rape cannot be held to have been made out. Moreover, the Doctor, who had examined the appellant, was not produced for his evidence. 10. Learned counsel for the State, per contra, submits that it has repeatedly been held by the Apex Court that the sole testimony of the victim, if reliable, can be a ground for conviction of the accused. Learned counsel contends that the victim has supported the case of the prosecution, her evidence is material, reliable and trustworthy. Counsel further contends that the evidence of the victim was unshaken during cross-examination. Crl.A.No.171/2009 Page 6 of 34 11. Learned counsel for the State submits that contention of the appellant that other cases are pending against the victim is baseless in view of the fact that no defence evidence has been led in support of this allegation. It is further submitted that it cannot be a case of mistaken identity as in the statement under Section 313 of the Cr.P.C., the appellant has clearly stated that he had refused to pay the victim as she used to make false allegations, and this shows that the appellant was not unknown to the victim and vice-versa. Learned counsel for the State contends that the victim has correctly described the incident and identified the appellant. 12. Learned counsel for the State submits that besides the evidence of the victim, the case of the prosecution stands corroborated by the scientific as well as medical evidence. The blood sample of the appellant was taken and according to the MLC, the appellant is capable of performing sexual intercourse. Learned counsel for the State submits that the appellant had refused to take part in the Test Identification Parade (TIP) and he had also refused to give his semen sample. Both these facts certainly affect the credibility of the case of the appellant and incriminate him. In support of his arguments, learned counsel for the State has relied upon the case of Aman Kumar and Another Vs. State of Maharashtra, reported at 2004 Supreme Court Cases (Cri.) 1266. Counsel has also relied upon Ranjit Hazarika Vs. State of Assam, reported at (1998) 8 SCC 635. Crl.A.No.171/2009 Page 7 of 34 13. It would be useful to analyse the evidence of material witnesses. PW-1, victim (name withheld) daughter of late Ashok Kumar, deposed in her examination-in-chief that she knew appellant, Mohinder, who was running a milk diary and keeping buffaloes near the house of Smt.Chamoli. PW-1 stated that her mother used to work in the house of Smt.Chamoli and she used to go to her house for studies. PW-1 stated that she did not remember the month but said that it was on the 20th of the month in the year 2007 at about 1:30 pm. when she had gone to make dung cakes in the dairy of appellant, Mohinder and when she was making dung cakes, appellant Mohinder called her and asked to put the empty balti (bucket) in his room and when she had gone to do the same, the appellant held her hand, dragged her inside his room, and started pressing her breasts by putting his hands inside her clothes. Appellant Mohinder forcibly laid her on the bed and when she tried to make noise, the appellant shut off her mouth with his hand. Thereafter the appellant untied her salwar and removed the same. The appellant unchained his pants took out his penis and inserted the same in the place of her passing urine. It pained her a lot, as a result of which she raised noise and the appellant ran away from there threatening to kill her, if she disclosed about this incident to anyone. PW-1 (victim) has further stated that thereafter she went to the house of Smt.Chamoli and informed her and her mother about the incident. Smt.Chamoli informed the police on telephone. The police officials came to them and accompanied the victim, her Crl.A.No.171/2009 Page 8 of 34 mother, Smt.Sudha and Smt.Chamoli to the house of appellant, Mohinder, but he was not found to be there. Thereafter the police took them to the police station Khajori Khas and recorded her statement Ex.PW-1/A, which bears her thumb impression as well as her signatures at point A and X respectively. Thereafter she was taken to the hospital and got medically examined. Her salwar was taken in the possession in the hospital itself. A sealed parcel bearing the seal of FSL was produced and opened in the Court and a salwar of Yellow colour (Ex.P-1) was taken out. However, PW-1 (victim) categorically did not identify the said salwar (Ex.P-1) as the same which she had allegedly been wearing at the time of the incident. The length of the salwar was also compared with the height of PW-1 and it was found that the salwar was proportionately very big. The Court also observed: “it is so clear that the said salwar produced in the court cannot be the salwar which the prosecutrix might be wearing at the time of the occurrence.” PW-1 admitted that the signatures on this statement, Ex.PW-1/B, are her signatures at point „A‟. PW-1 further identified the metal bucket, as the same, which appellant Mohinder had asked her to put in his room. 14. PW-1 was cross-examined by learned counsel for the appellant and she deposed that at the time of recording of her statement in the Court, one bhaiyaji used to bring her to the court. She stated that bhaiyaji was not in her relation and was introduced to her by Ms. Laleima, who is an Advocate from Rape Crisis Cell of Delhi, Commission for Women. PW-1 further stated that she was Crl.A.No.171/2009 Page 9 of 34 not a tutored witness. Initially, PW-1 had not named appellant, Mohinder, at the place of occurrence when she had narrated about the incident to her mother and Smt. Chamoli, as she did not remember the same at that point of time. However, PW-1 denied the suggestion that she did not name appellant, Mohinder, as he had not committed the crime but it was some other unknown person. As per PW-1, immediately, after the occurrence, she had reported the matter to her mother and Smt. Chamoli. Police reached there after some time and she was taken to the hospital for her medical examination. PW-1 stated that she had not given the name of the appellant to the Doctor who prepared her MLC and further it was correct that she did not know the name of the appellant, who had committed rape upon her, at the time of preparation of MLC. At that stage, a court question was put to this witness: “Did you know the accused of rape by face? Ans.: Yes. I knew the accused of rape by face. He is present in the Court and his name is Mohinder.” 15. PW-1 also stated during her cross-examination that the police had recorded her statement, Ex.PW-1/A on her dictation and not at the dictiation of anybody else. She learnt the name of appellant as Mohinder, as people were addressing him by that name. She came to know the name of the appellant after many days of the occurrence. Further as PW-1, she had not given the name of appellant as Mohinder in her statement, Ex.PW-1/B, recorded by the Magistrate, although on that date her mother and Smt. Chamoli had accompanied her to the court. She further Crl.A.No.171/2009 Page 10 of 34 stated to not remember whether she had disclosed the place of occurrence as Dairy in her statement, Ex.PW-1/B, recorded by the Magistrate. PW-1 was confronted with Ex.PW-1/B, wherein there was no mention of the place of occurrence as Dairy. PW-1 accepted that it was correct to say that there are several Dairies where buffaloes are kept near her residence but there were no such dairies near the place where her mother used to work at the house of Smt. Chamoli. PW-1 stated that in and around the days of occurrence of the incident, she was working in two houses, but she did not know the house numbers and the gali wherein they were situated. She stated that it was wrong to suggest that the occurrence of rape had taken place at any of the aforesaid two houses. She also denied the suggestion that no occurrence had taken place at the dairy of appellant, Mahender, or that appellant, Mahender, had not committed rape upon on her. She stated that she was not deposing falsely at the instance of her mother or Smt. Chamoli. 16. PW-2, Smt. Sudha (mother of the prosecutrix) has stated on oath that she knew appellant, Mohinder, who was running a milk dairy and keeping buffaloes near the house of Smt.Chamoli. As per PW-2, she used to work as a maid servant in the house of Smt.Chamoli and that her daughter (victim) used to go to her house for studies. PW-2 has stated that on 20.1.2007, while she was working in the house of Smt.Chamoli, her daughter came to her and told that while she had gone to the dairy of Mohinder, at around 1:30 noon, appellant, Mohinder asked her to put the Crl.A.No.171/2009 Page 11 of 34 empty metal bucket in his room. At that time when her daughter had gone to do so, appellant dragged her inside and raped her. While this incident was narrated by her daughter, Smt.Chamoli was also present there and she had also heard the complaint of her daughter. As per PW-2, Smt.Chamoli had informed the police telephonically. The police came to them and accompanied to the dairy of Mohinder, but he could not be found there. Thereafter police took them to the police station, where the statement of her daughter (victim) was recorded. 17. In the cross-examination by learned counsel for the appellant, PW-2, deposed that she has two children, namely, one son and one daughter. Her son is two years elder to her daughter (victim). PW-2 denied the suggestion that the age of the prosecutrix was more than 18 years at the time of the incident. She further stated that her daughter (victim) used to remain with her or with Smt.Chamoli and that she was not working anywhere. PW-2 stated that no one had tutored her about the date of the incident and further that she had come to the court on her own and no body had escorted her. When her daughter victim had narrated the incident to her and Smt.Chamoli, soon after the occurrence, her daughter had named the appellant, Mohinder and had also described the place of occurrence as the dairy of Mohinder. Further when Smt.Chamoli had telephonically informed the PCR, she had named the accused as Mohinder and the place of occurrence as dairy of Mohinder. Police had recorded her statement. PW-2 further deposed that she had told the name Crl.A.No.171/2009 Page 12 of 34 of the appellant to the doctor, at the time of medical examination of her daughter. She denied the suggestion that she did not know the name of the appellant till the medical examination of her daughter. And that it was wrong to suggest that she did not know the name of the appellant even till the recording of the statement of her daughter by the Magistrate. PW-2 also denied that the appellant present in the Court had not committed rape with her daughter, victim or that some other unknown person had raped her daughter. She further stated that this was not a case of mistaken identity and she has not falsely implicated the appellant at the instance of Smt.Chamoli and local police. PW-2 on seeing the salwar, Ex.PW-1, submitted that she was not sure whether the said salwar was the same which her prosecutrix, daughter, was wearing at the time of the occurrence. 18. PW-3, Dr. Monika (Senior Resident, GTB Hospital Delhi) deposed in her examination-in-chief that on 20.1.2007, at about 5:30 pm prosecutrix, daughter of Ashok Rai, aged 11 years was brought for her medical examination by a lady constable, Police Station Khajori Khas. Mother of the victim, namely, Smt.Sudha was also accompanying the victim. The alleged history was given by the victim herself and the same is mentioned in the MLC. On examination no marks of injury were found on the body of the prosecutrix. PW-3 further stated that on local examination, external genetalia was healthy and hymen was intact. Smears were made from vulva and slides were handed over to the lady Crl.A.No.171/2009 Page 13 of 34 constable. Salwar of the prosecutrix was also sealed and handed over to the lady constable. This victim was further advised for bone x-ray. As per PW-3, the MLC (Ex.PW-3/A) was prepared by her and bears her signatures at point (A). 19. In the cross-examination by counsel for the appellant, PW-3 deposed that at the time of medical examination, mother of the prosecutrix was also present. PW-3 further stated that it was wrong to suggest that age of the prosecutrix was 18 years. 20. PW-4, Smt.Pushpa Chamoli has deposed in her examination-in- chief that she runs a school under the name and style of RD Convent School, Sonia Vihar, Delhi. Smt. Sudha used to work in her school, in the year 2007. On 20.1.2007 Sudha was present in her house and daughter of Sudha namely, victim, came weeping to her house. Her mother was also present in the house, where she was doing the domestic work. Her mother brought the victim before PW-4. PW-4, stated that at that time, she noticed that the clothes of victim were dirty. The victim informed her about the detail of the incident which had occurred to her and she also named the appellant. Thereafter PW-4 informed the PCR in the presence of the victim and her mother. PCR officials came to their house and thereafter she along with the victim and her mother along with the police officials of PCR went to the house of the appellant, who was not present there at that point of time, however, the mother of the appellant was there. After some time local police also came at the spot. As per PW-4, from the spot they along with the police came to the police station and Crl.A.No.171/2009 Page 14 of 34 thereafter they came to GTB hospital along with lady constable, Laxmi. In GTB hospital the victim was medically examined and her MLC was prepared by the doctor and a case was registered by the police on the statement of the victim and the statement of PW-4 was also recorded by the police. PW-4 further stated that she saw the appellant, Mohinder for the first time in the Court today. PW-4 was cross-examined by the learned counsel for the appellant, wherein she deposed that after the incident Sudha was residing in her house for a period of 2-3 months for security purposes. She stated to not have any record of Smt. Sudha was working in her house or in the school. During hearing the incident, prosecutrix disclosed the name of the appellant as well as the place of the incident. She stated that it was incorrect to suggest that she was deposing falsely or that at the time of the incident, the prosecutrix was aged about 18 years. 21. PW-5, Constable Gianender, deposed on oath that on 26.01.2007, he was posted in police Station Khajuri Khas, PW-5 affirmed that the appellant was arrested on a secret information received by him along with PW-6 and HC Jagpal Singh while they were on patrolling duty on the area. As per PW-5, he was sent with the appellant to GTB Hospital, so as to get him medically examined. After the examination, the Doctor, had given him two sealed parcels, which were handed over by him to ASI Sunita who seized the same vide memo, Ex.PW-5/A. Learned APP for the State re-examined this witness, wherein he stated that it was correct to say that the appellant had produced one bed-sheet Crl.A.No.171/2009 Page 15 of 34 and one steel bucket from his house and the same were taken into possession vide memo, Ex.PW-5/B. PW-5 further identified the unsealed metal bucket, Ex.P-2, as the same which was produced by the appellant. The appellant also identified the bed sheet, as Ex.P-3. In the cross-examination by counsel for the appellant, PW-5 stated that it was correct to say that in his statement under Section 161, Cr.P.C. he had not stated that one bucket and bed sheet were produced by the appellant from his house. PW-5 however, denied the suggestion that he was deposing falsely with respect to identification of the bucket and the bed sheet. 22. PW-6, SI Satender Tomar, deposed on oath that on 26.01.2007, he was posted at Police Station Khajuri Khas at about 7.30 a.m., when he was present near Zero Pushta, Nanak Sar Picket, an informer met him