Crl. A. 934/2006 Page 1 of 19 * THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 08.09.2009 Judgment delivered on: 21.12.2009 Crl. Appeal No. 934/2006 RAMESH ..... Appellant Vs STATE (GOVT. OF NCT) DELHI ..... Respondent Advocates who appeared in this case: For the Appellant : Ms Saahila Lamba, Advocate For the Respondent : Mr Amit Sharma, Addl. Public Prosecutor CORAM :- HON'BLE MR JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ? Yes RAJIV SHAKDHER, J 1. This is an appeal directed against the judgment dated 12.07.2006 passed by the Addl. Session Judge, Tis Hazari, Delhi in S.C. No. 11/05 and sentence dated 14.07.2006. 2. By virtue of the impugned judgment the appellant has been convicted of offences under Section 376(2)(g) and Section 506, para (ii) of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). Accordingly, the appellant has been sentenced to 10 years of rigorous imprisonment and a fine of Rs 2000/- in respect of offence under Section 376(2)(g) of the IPC. In default of payment of fine the appellant is required to undergo a further rigorous imprisonment for a period of two months. As regards the conviction for offence under Section 506, para (ii) of the IPC is concerned, the appellant is required to undergo rigorous imprisonment for three (3) years and a fine Crl. A. 934/2006 Page 2 of 19 of Rs 1000/-. In default of payment of fine the appellant is required to undergo a further rigorous imprisonment for a period of one month. Both these sentences are to run concurrently. 3. In brief, the prosecution version is that on 26.04.2004 the prosecutrix along with her relative one Sati Ram (PW9), who incidently is also her boyfriend, arrived from Jalpaiguri in West Bengal at the Old Delhi railway station. At the railway station they were met by the appellant. The appellant, who claimed to have known them, struck up a conversation with them and in a matter of conversation inquired as to the purpose of their visit. On being told that the prosecutrix and Sati Ram (PW9) had come to Delhi for a job, he promised to get them a job. The appellant also promised to get them a place where they could reside. The appellant, evidently, told them that for this purpose they would have to meet up with his friend who will be available at the New Delhi railway station. On this pretext the appellant accompanied the prosecutrix and Sati Ram (PW9) to the New Delhi railway station. On reaching the place the appellant informed them that his friend would arrive late at night, consequently, the prosecutrix and Sati Ram (PW9) slept at the railway station. Sometime, in the early hours of 27.04.2004, the prosecutrix and Sati Ram (PW9) were woken up; the appellant introduced them to his friend Rakesh. After a while they returned back to the Old Delhi railway station. It transpires that at some point in time, the appellant and his friend Rakesh parted company on the pretext of getting Sati Ram (PW9) a job. Rakesh took away Sati Ram (PW9), while the appellant remained with the prosecutrix. However, after some time Rakesh returned and informed the prosecutrix and the appellant that Sati Ram (PW9) has been arrested by the police. The prosecutrix was then told that she would have to be hidden so that the police do not apprehend her. Based on this ruse the appellant and his friend persuaded the prosecutrix to visit a cinema hall. On the prosecutrix showing her disinclination, she was slapped. The prosecutrix continued to do, the appellant and his friend Rakesh’s bidding as she was assured that they would try Crl. A. 934/2006 Page 3 of 19 and secure the release of Sati Ram (PW9) and for this purpose they would have to involve other friends. It is in this context that the prosecutrix was again put on the train and taken to Ghaziabad. On reaching Ghaziabad she was taken to a nearby field where the prosecutrix was molested, threatened and thereafter raped by Rakesh and the appellant; who took turns at her. Eventhough the prosecutrix resisted and raised an alarm she was not able to prevent herself from being subjected to rape. The assailants’ beastiality left the prosecutrix unconscious. She spent the night in the fields. With the break of dawn the assailants realizing the gravity of their dastardly act threatened to kill the prosecutrix and throw her body in the nearby naala. Scared, the prosecutrix promised not to reveal her horrific tale to anyone. She sought shelter at the Sheesganj Gurudwara, Delhi (hereinafter referred to as the ‘Gurudwara’). The assailants complied; the prosecutrix was secured shelter at the Gurudwara, with the appellant for company, while Rakesh went away. 3.1 The appellant’s crime came to light when a lady help (sewadar) Paramjit Kaur (PW11), who was tasked with cleaning the rooms, came across the prosecutrix. The lady sewadar (PW11) noticed blood stains on the clothes of the prosecutrix; when asked, the prosecutrix blurtted out the events of the previous night to the sewadar. The appellant, who was in the vicinity, attempted to flee. He did not succeed and was caught by male helps (sewadars) of the Gurudwara. 3.2 Consequently, the police station Kotwali were informed by the Gurudwara authorities at about 5.00 – 6.00 a.m. on 28.04.2004. On being informed the police personnel SI Harivansh Singh (PW5) and Insp. Shashi Bala (PW6) reached the Gurudwara. Upon interrogation of the prosecutrix, it was decided that the incident related to police station R.M.D. The prosecutrix and the appellant were accordingly brought to police station R.M.D. A statement of the prosecutrix (Ex. PW1/A) was recorded. Based on the said statement a FIR (Ex. PW13/B) bearing no. 134/2004 under Sections 363/376/506/34 of the IPC was registered at police station R.M.D. The Crl. A. 934/2006 Page 4 of 19 investigation of the case was handed over to SI Sushila Rana (PW22). On the same day, i.e., 28.04.2004 the prosecutrix was sent for medical examination at Aruna Asaf Ali Govt. Hospital (hereinafter referred to as the ‘Hospital’). Similarly, the appellant was medically examined on 30.04.2004, and also on 02.05.2004 by Dr. Akash Jhangee (PW17). On 05.05.2004 the prosecutrix’s statement (Ex. PW1/B) under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) was recorded by the Magistrate. On completion of investigation, a chargesheet was filed against the appellant. The co-accused Rakesh, since he had absconded; was declared a proclaimed offender. Proceedings under Sections 82-83 of the Cr.P.C. were commenced against him. The prosecution, in order to prove its case, cited 22 witnesses; while the defence did not lead any evidence. The statement of the appellant under Section 313 of the Cr.P.C. was recorded whereby every incriminating evidence collected by the prosecution was put to him. The appellant, in response, has denied routinely each and every incriminating evidence put to him by the trial court. The only plea that the appellant has raised is that he has been falsely implicated in the case by the police. 4. Ms Saahila Lamba, learned counsel for the appellant has assailed the trial court’s judgment on the following grounds:- (a) there are contradictions in the version set by the prosecutrix at various stages of the case. In order to demonstrate the same the learned counsel has referred to the statement of the prosecutrix (Ex. PW1/A) before the police; the statement made by the prosecutrix to the magistrate under Section 164 of the Cr.P.C.; and the deposition in court, of the prosecutrix both in examination-in-chief and her cross-examination, thereafter. On reading of the aforesaid versions, it is sought to be demonstrated that there is a contradiction; firstly, in so far as Sati Ram’s (PW9) relationship with the prosecutrix is concerned. It is contended at one place that Sati Ram’s (PW9) relationship with the prosecutrix is described as that of a relative, i.e., he is her cousin, Crl. A. 934/2006 Page 5 of 19 and at another place his relationship with the prosecutrix is that of a boyfriend, and at third place he is described as her husband; (ii) the other contradiction pointed out is with regard to the inconsistency in her statements at various stages, as to who between the two, that is, Rakesh or the appellant, in the first instance, accompanied Sati Ram; and therefore who, i.e., the appellant or Rakesh came back and reported that Sati Ram (PW9) had been arrested by the police. In this context the testimony of Sati Ram (PW9) was also relied upon to show the discrepancy in the version set out by the prosecutrix. At one place the prosecutrix seems to have said that it was Rakesh who was accompanied by Sati Ram (PW9), and informed the appellant and prosecutrix, that Sati Ram (PW9) had been arrested; at another place the prosecutrix is stated to have said that it was appellant who accompanied Sati Ram (PW9) and he came back and informed the prosecutrix and Rakesh that Sati Ram (PW9) had been arrested; (iii) the third contradiction, which is pointed out, is that in the first statement made to the police the prosecutrix had not made any reference to the fact that she was forced to visit a cinema hall, whereas in her statement (Ex. PW1/B) under Section 164 of the Cr.P.C. before the Magistrate, her deposition in the court and in her cross-examination she had alluded to the fact that she was forced to visit the cinema hall; (iv) there is admission on the part of Sati Ram (PW9) in his cross-examination that it is he who raped the prosecutrix; (v) eventhough the incident occurred, according to the prosecutrix, at about 9.00 a.m. in the morning of 28.04.2004, the prosecution’s case is that the police had received the information at about 6.00 p.m. while the rukka records time of the incident as 9.30 p.m. The appellant’s arrest vide arrest memo (Ex. PW22/C) is shown as 10.30 p.m. The delay needs to be explained by the prosecution; (vi) there are discrepancies with respect to the articles sent to Forensic Science Laboratory (in short the ‘FSL’). In this connection, it was submitted that: Crl. A. 934/2006 Page 6 of 19 (a) the clothes of the prosecutrix were never seized. What was seized were her undergarments and what was sent to the FSL was the prosecutrix’s salwar. (b) what was sent to the FSL was the second undergarment of the prosecutrix, which was purportedly recovered at the behest of the appellant. There is no explanation as to what happened to the first undergarment that the prosecutrix was wearing at the time of her medical examination. (c) the disclosure statement (Ex.PW22/B) of the accused does not refer to any undergarment, therefore, the undergarment which was recovered, cannot be used against the accused. (vii) there are discrepancies with respect to dates on which the case property was sent to FSL and the person who took the case property for analysis to FSL. It is not clear as to whether the case property was taken by constable Rajesh (PW16) or SI Sushila Rana (PW22); (viii) Report of the FSL reveals absence of semen on the vaginal swab of the prosecutrix. 4.1 To buttress her submission the learned counsel relied upon the following judgments: Radhu vs State of MP (2007) 12 SCC 57, Pohalya Motya Valvi vs State of Maharashtra (1980) 1 SCC 530 at para 15 page 535-536 and Sadashiv Ramrao Hadbe vs State of Maharashtra & Anr. (2006) 10 SCC 92. 5. As against this, Mr Amit Sharma, learned Addl. Public Prosecutor submitted in rebuttal as follows: 5.1 Inconsequential discrepancies with regard to prosecutrix’s relationship with Sati Ram (PW9) would not impact the case of the prosecution as long as this court were came to the conclusion that the prosecutrix’s statement with regard to the incident is trustworthy. Crl. A. 934/2006 Page 7 of 19 5.2 The learned APP submitted that the relationship of the prosecutrix with Sati Ram (PW9) is that of a distant relative which perhaps had physical overtones, but there was no allegation of the prosecutrix that Sati Ram (PW9) had raped her. The stray sentence in Sati Ram’s (PW9) deposition would thus have to be excluded. 5.3 The delay in recording the rukka and timing of FIR was sought to be explained on account of the fact that the information with regard to the incident was first received by police station at Kotwali, and thereafter communicated to police station at R.M.D. The learned APP submitted that delay by itself would not enure to the benefit of the defence. 5.4 As regards the submission for the appellant that clothes which were not seized, i.e., the salwar, was sent for analysis to the FSL was sought to be rebutted by the learned APP by relying upon the testimony of prosecutrix herself. In this connection he drew my attention to the statement made by the prosecutrix to the effect that when she was taken for medical examination her ‘clothes’ were seized. The learned APP thus submitted that in the road certificate, which accompanied the samples and packets sent to FSL, there is a clear and separate entry with regard to undergarments which were seized at the site of occurrence at the pointing out of the appellant as well as the undergarments which were seized at the time of the medical examination of the prosecutrix. The learned APP submitted that the expression undergarment was a misnomer and if read in conjunction with the testimony of the prosecutrix it had to be clothes. My attention was also drawn to the MLC (Ex. PW4/C) of the prosecutrix wherein there is a reference to the ‘under clothes’ of the patient. The learned APP submitted that as a matter of fact it is quite clear that there was no second undergarment. The only undergarment was the one which was found at the site of the incident. 5.5 The learned APP further submitted that it was W/H.C. Rajesh (PW16), who had taken the prosecutrix for medical examination on 28.04.2004 to the hospital and that, Crl. A. 934/2006 Page 8 of 19 there is a reference to the fact, in her deposition that after the prosecutrix was medically examined she was handed over a slide and a pulanda with sample seal by the doctors. The said prosecution witness PW16 proved the recovery memo (Ex. PW16/A). The learned APP also relied upon the testimony of H.C. Lal Chand (PW14) to demonstrate that both at the time of receipt of the sealed parcels on 28.04.2004 as well as on 02.05.2004 and also at the time of their despatch to the FSL and their inward receipt in the malkhana the case property remained intact. The learned APP thus submitted that there was no suggestion made in the cross-examination to PW16/PW14 that how is it that what was handed over to them was an undergarment of the prosecutrix whereas, what was sent for analysis to the FSL was a salwar. It was, therefore, the submission of the learned APP that inaccurate description of the prosecutrix’s apparel cannot enure to the benefit of the defence. 5.6 The learned APP relied upon the testimony of Taranjeet Singh (PW7), Paramjit Kaur (PW11) and Bagicha Singh (PW12) to substantiate the prosecution’s version. He specifically referred to the fact that the appellant’s guilt was also evident from the fact that he attempted to get away when he realized that the prosecutrix had revealed his crime, to the female help (sewadars) of the Gurudwara. 5.7 The learned APP also submitted that the defence has taken diametrically opposite stand. On the one hand the defence has taken a stand that the appellant had been falsely implicated and that he had nothing to do with the prosecutrix; and on the other hand, in the cross-examination of PW1 it has come through that the defence sought to take up a stand that the prosecutrix was involved in prostitution, and that Sati Ram (PW9) had accepted money on her behalf for sexual favours. 5.8 The learned APP referred to the pointing out statement (Ex. PW18/A) as also the disclosure memo (Ex. PW22/B). He submitted that a perusal of the same would show that it was based on the pointing out of the appellant, that the spot, where the crime was committed, was identified. It was at that spot that the police recovered the Crl. A. 934/2006 Page 9 of 19 undergarment of the prosecutrix. The said undergarment was shown to the prosecutrix, who identified the same. 5.9 The learned APP submitted that the prosecution’s case has been established beyond a reasonable doubt and in this regard he referred to the following: testimony of PW1; the MLC of PW1 (Ex. PW4/C) which showed that the prosecutrix had bruises and abrasions on her cheek and back and swelling on the face; the testimony of Dr. Akash Jhangee (PW17) which revealed in great detail the injuries on the person of the appellant and, in particular, indicated the absence of smegma on the penis of the appellant; the semen stains on the undergarments of both the accused as well as the prosecutrix as also the serological report, which showed that both the semen stains on the undergarment of the appellant as well as that of the prosecutrix had a blood group ‘B’. 6. I have heard the learned counsel for the appellant and the respondent-State. I am of the view that the prosecution has been able to establish its case, but for some minor discrepancies, beyond a reasonable doubt. My reasons for coming to the said conclusion are as follows: 7. The core aspects of the offence committed by the appellant have come through in the testimony of the prosecutrix. A close scrutiny of the prosecutrix’s testimony reveals a tale of sordid penury where illiterate migrants, who come to the city in search of work, get ensnared by unscrupulous and anti-social elements into situations which expose their physical well-being to grave danger. The present case is one such instance. On 24.04.2004 the prosecutrix had left Jalpaiguri in West Bengal alongwith Sati Ram (PW9) for Delhi with the sole objective to find work to eke out their living. At the station, she and Sati Ram (PW9) met up with the appellant, who inveigled them into believing that he alongwith his friend would be able to get them a job. Somehow, the appellant and his friend Rakesh managed to put Sati Ram (PW9) out of the picture. Prosecutrix, who is a village belle, was taken from one place to another by the appellant Crl. A. 934/2006 Page 10 of 19 and his friend Rakesh, till they finally reached a lonely spot in the fields next to the railway station. There, the prosecutrix was molested, threatened and raped by both the appellant, and his friend Rakesh. This crime was committed on the prosecutrix between night of 27.04.2004 and the early hours of 28.04.2004. In the morning she was housed in the precincts of the Gurudwara. Had it not come to the notice of a vigilant sewadar Paramjit Kaur (PW11) the prosecutrix’s sordid and horrific experience would not have come to light. The appellant, at that point in time, was with the prosecutrix: On being discovered he attempted to flee. Fortunately, the appellant was caught and brought to trial. 8. The learned counsel for the appellant in order to create a doubt, as regards the prosecution version, has referred to the different versions given by the prosecutrix with regard to her relationship with Sati Ram (PW9) as also with regard to who out of the two, i.e., the appellant or Rakesh was responsible for weaning away Sati Ram (PW9) from her. The learned counsel for the appellant has also referred to the fact that there was no reference to the prosecutrix having visited the cinema hall with the appellant and his friend Rakesh, in her first statement to the police. In my view, these are discrepancies which cannot have any impact on the prosecution’s case that the prosecutrix was subjected to sexual intercourse without her consent. The prosecutrix perhaps, was embarrassed about the relationship with Sati Ram (PW9). At one place she claimed him to be her cousin brother, while at another, she claimed that he was her boyfriend. The fact of the matter is; that she did acknowledge ─ that she has had a physical relationship with Sati Ram (PW9). The fact also remains that ─ her physical relationship with Sati Ram (PW9) was consensual. Nevertheless she at no point in time stated that Sati Ram (PW9) had subjected her to sexual intercourse without her consent. On the contrary she consistently stated that the appellant and Rakesh had lured her to a lonely spot near the railway station in Ghaziabad on the pretext that they would seek help from their friends to look for Sati Ram (PW9); she has not deviated from her Crl. A. 934/2006 Page 11 of 19 statement made either before the police or before the magistrate or even before the court that the appellant and Rakesh forcibly subjected her to sexual intercourse. The submission of the learned counsel for the appellant that Sati Ram (PW9) had admitted in his cross-examination that he had committed rape on her is, according to me, inaccurate description of the relationship that subsisted between Sati Ram (PW9) and the prosecutrix. This is clear from the very next statement which Sati Ram (PW9) made before the Court in his cross-examination wherein he voluntarily made two crucial statements. First, that a consensual sexual relationship obtained between him and the prosecutrix. Second, that the prosecutrix had been in love with him since childhood. 9. As regards the appellant’s submission with regard to the delay in recording the FIR, I find that no such submission was made before the trial court. Even the grounds of appeal do not raise any such ground. In my view the delay by itself cannot enure to the benefit of the defence if otherwise prosecutrix’s testimony is trustworthy. In the first instance, the delay was perhaps caused on account of the fact that the intimation regarding the crime had been received at police station Kotwali near the Gurudwara at 6.00 p.m. This is alluded to by Insp. Shashi Bala (PW6) in her deposition. It was thereafter revealed that police station Kotwali may not have jurisdiction to deal with the case and hence, an intimation was sent to police station, at R.M.D. The case was handed over to SI Sushila Rana (PW22) for investigation. The rukka was sent to the police station at 9.00 p.m. This aspect of the case was brought in the testimony of H.C. Kunji Lal (PW13) who was on duty at police station R.M.D. on 28.04.2004 between 4.00 p.m. and midnight. S.I. Sushila Rana (PW22) in her deposition stated that it took her one and a half hour to record the statement (Ex.PW1/A) of the prosecutrix. PW22 also deposed that prosecutrix was taken to the hospital for medical examination at about 11.00 p.m. on 28.04.2004, and that the examination took about two hours. While there is admittedly a delay between when the incident was first noticed at 9.00 am in the Crl. A. 934/2006 Page 12 of 19 morning by the helps (sewadars) of the Gurudwara and it being reported to the police station at 6.00 p.m.; the defence did not confront the prosecution witnesses Insp. Shashi Bala (PW6), H.C. Kunji Lal (PW13) & S.I. Sushila Rana (PW22) with regard to this aspect of the case. They perhaps may have had an explanation. However, as observed by me above, the delay by itself would not enure in favour of the defence. It is not unheard that where parties, against whom offences are committed, belong to the poorer strata of the society, the