Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 1 of 27 IN THE HIGH COURT OF DELHI, AT NEW DELHI [1] Crl. Appeal.No.17/2001 % Judgment delivered on March 2nd, 2009. # MAHESH CHANDER ….. Petitioner Through: Mr.D.B. Goswami, Advocate Versus $ STATE (NCT OF DELHI) .... Respondent. Through: Mr.O.P.Saxena, APP for State [2] Crl. Appeal.No.116/2001 # ANIS ….. Petitioner Through: Mr.D.B. Goswami, Advocate Versus $ STATE (NCT OF DELHI) .... Respondent. Through: Mr.O.P.Saxena, APP for State [3] Crl. Appeal.No.489/2001 # ANIL KUMAR ….. Petitioner Through: Mr.D.B. Goswami, Advocate Versus $ STATE (NCT OF DELHI) .... Respondent. Through: Mr.O.P.Saxena, APP for 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 Yes Digest? G.S.SISTANI, J : 1. It was observed that “rape is an accusation easily to be made and hard to be proved and yet harder to be defended by the Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 2 of 27 party concerned”, Kelleher Vs. Queen, reported at 1974 (3) Commonwealth Law Reporter 534. 2. The present appeals have been filed by the appellants Mahesh Chander, Anis and Anil against the judgment and order on sentence dated 07.12.2000 and 18.12.2000, respectively, passed by the Additional Sessions Judge, Delhi, in Sessions Case no. 27/96, FIR No.172/90, Sections 342/376/34 of the Indian Penal Code, 1860 (hereinafter referred to as , “IPC”), by virtue of which, the appellants were sentenced to undergo one year Simple Imprisonment (hereinafter referred to as, “S.I.”) for the offence punishable under Section 342, IPC and Rs.1,000/-, each, as fine and in default of the payment of fine to undergo S.I. for three months. Appellants were also sentenced to undergo Rigorous Imprisonment (hereinafter referred to as, “R.I.”) for a term of seven years for the offence punishable under Section 376, IPC and sentenced to pay a fine of Rs.2,000/-, each, and in default of the payment, S.I. for one year. Both the sentences were to run concurrently. It was also held that the benefit of Section 428, Code of Criminal Procedure, 1973 (hereinafter referred to as, “Cr.P.C.”) be also given to the appellants and the period of detention undergone by them during investigation or trial be deducted from this sentence. 3. The three appeals were heard together. Learned counsel for the parties submit that all the appeals should be disposed of by a common judgment. Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 3 of 27 4. The facts of this case, as noticed, by the learned Additional Sessions Judge, Delhi, are that: on 02.08.1990, prosecutrix (name withheld) travelled in Bus No. UHN-2484, which was being driven by the appellant, Mahesh Chander. Appellants, Anis and Anil, were conductors of the said bus. When the prosecutrix arrived at Delhi in the said bus from town Nanota via Saharanpur, she was stopped by the appellants on the pretext that conductor Anil Kumar would help her in reaching her destination at New Delhi. He carried her to the petrol pump of Gokal Puri in another bus. The above mentioned bus was already parked at that petrol pump. Appellants, Mahesh and Anis, were already present there. Ishtkhar, cleaner of the said bus was also there. They took the bus to a deserted place in the night. Appellants, Mahesh Chander, Anis and Anil Kumar, raped her against her wishes. After commission of rape they took the bus to „Majnu-ka-Teela‟. The prosecutrix escaped from there on the pretext that she had to respond to the call of the nature. The prosecutrix approached the police and she was taken to Police Station, Civil Lines where a case was registered on her statement. The case was then transferred to Police Station, Gokal Puri where FIR No.172/90 was registered. The search of the bus was made. Prosecutrix was sent to a Civil Hospital, MLC was prepared and her X-ray was also taken for the purpose of determination of her age. A sample of vaginal swab was also taken and sealed with the seal of Civil Hospital, handed over to police and the I.O. took it into his possession. Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 4 of 27 Underwear of the prosecutrix was also taken into possession after sealing it in a pulanda and was duly sealed with the seal of MD. The bus was also seized. Appellant, Mahesh Chander, was arrested on 03.08.1990. His personal search was conducted and a memo was prepared. His underwear was also taken into possession, sealed with the seal of RD and a seizure memo was prepared. Appellant, Anis was arrested on 05.08.1990. His personal search was conducted and memo was prepared. Appellant, Anil Kumar, was also arrested on that date. His personal search was conducted and personal search memo was prepared. Appellant, Mahesh, made his disclosure statement on 03.08.1990. He was also medically examined in GTB Hospital and his MLC was prepared. The underwear of appellants, Anis and Anil Kumar were also seized vide separate seizure memos and duly sealed with the seal of SRS. Appellants, Anis and Anil Kumar, also made their disclosure statements before the police which were recorded. These appellants were produced in GTB Hospital where they were medically examined and the MLCs were prepared. The samples were sent to the laboratory and after examination a report was obtained from CFSL. I.O. also prepared the site plan of the place of occurrence. Metropolitan Magistrate recorded the statement of the prosecutrix under Section 164 of the Cr.P.C. After completion of investigation, police filed a challan against all the three appellants for their trial for the offences punishable under Sections 376/342/34, IPC. Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 5 of 27 5. Learned counsel for the appellant submits that the learned Additional Sessions Judge has erred in convicting the appellants on the testimony of the prosecutrix, which is absolutely unbelievable and untrustworthy. Although, in her statement, made on 27.08.1991, the prosecutrix had supported the version of the prosecution, but in her cross-examination dated 20.05.1999 she has absolutely denied being raped by the appellants. However, on the application of the Public Prosecutor under Section 311 of the Cr.P.C, in her re-examination-in-chief on 04.11.1999, the prosecutrix has made a complete somersault and made out a new story of being kidnapped and threatened by the appellants, in the month of December, 1998, when she was coming by train from Saharanpur, to depose before the Trial Court. 6. It is contended by learned counsel for the appellant, that the Court below, erred in not asking for any proof of the prosecutrix being kidnapped or threatened by the appellants and further relying solely on her testimony. It is contended that there are material contradictions in the statement made by the prosecutirx, at the first instance; her statement recorded before the Metropolitan Magistrate under Section 164 of the Cr.P.C.; and, subsequently the testimony recorded in the Court. It is next contended by learned counsel for the appellant that the testimony of the prosecutrix is neither reliable nor trustworthy as it is quite evident from the evidence on record that the prosecutrix is a smart lady and Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 6 of 27 could not have been easily trapped by anybody. As per her statement, the prosecutrix, had gone to meet the SSP, Saharanpur, in connection with the murder of her sister and in the same connection she had met the Member of Parliament, Mr. Janardhan Dwivedi as well as one Col. Parishat. 7. It is submitted before this Court that taking these factors into consideration, it cannot be said that the prosecutrix was not aware where she was being taken by the appellants. Even otherwise, there was enough opportunity for the prosecutrix to have escaped from the trap of the appellants, which shows that if at all there had been any sexual intercourse with the prosecutrix by the appellants, it was with her consent. The appellants cannot be held guilty for rape. It is also contended that the evidence of the prosecutrix is wholly unreliable and even in case the Court comes to the conclusion that her evidence is partly reliable, an order of conviction could only have only been passed if her evidence was corroborated by some independent and reliable witness. Whereas in this case the Court has relied upon the testimony of PW-15, Ishtkhar, who is alleged to be the helper of the same bus in which rape is alleged to have been committed. Learned counsel also submits that there is contradiction in the statement of the prosecutrix and PW-15. Learned counsel further submits that while PW-15, Ishtkhar, in his statement before the Court, has stated that the appellants before committing sexual intercourse with the prosecutrix, had consumed liquor where as there was no Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 7 of 27 mention of consumption of liquor by the prosecutrix in her statement. 8. Learned counsel for the appellant has also strongly urged before this Court that the medical evidence does not support the theory of rape as, as per FSL report, there were no traces of semen found in the vagina of the prosecutrix. Counsel has also relied upon the Modi‟s Textbook of Medical Jurisprudence and Toxicology, Twenty-first Edition, according to which, “the presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days, by Morrison (1972) upto 9 days in vagina and 12 days in the cervix”. 9. Learned counsel for the appellant submits that in view of the medical evidence brought on record, it would show that there was no possibility of any rape on the prosecutrix. Learned counsel has strongly relied upon the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and Another, reported at (2007) 1 SCC (Cri.) 161, in support of his submission, and more particularly paras 7 and 13 of the judgment, which are reproduced below: “7. The doctor, who examined the prosecutrix at about 3. P.M., did not find any injury on her body. There was only swelling on the upper lip but the prosecutirx had no case that this swelling on the upper lip was caused during the course of the incident. There were no injuries on her private parts and the doctor who had examined her was unable to give any opinion about the sexual intercourse allegedly taken place. It is important to note that vaginal swab was collected by the doctor and it was sent for chemical examination. Exhibit 43 is the pathological Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 8 of 27 report and it shows that microscopic examination of the vaginal swab showed desquamated cervical cells and few co-oxalate crystals and fluid but no spermatozoa was found. The swab of vagina was taken on the same day and if any sexual intercourse had taken place in all probabilities, the vaginal swab would have contained some spermatozoa. The absence of these sperm casts a serious doubt on the prosecution version. 13. The Sessions Court as well as the High Court had not taken into consideration the absence of spermatozoa in the vaginal swab of the prosecutrix. It may also be noticed in the FI statement. In this case the prosecutrix had not given the full description of the incident allegedly taken place but when she was examined in Court she had improved her version.” 10. Per Contra, learned counsel for the State has submitted that the evidence of the prosecutrix is trustworthy and reliable. Counsel further submits that besides the evidence of PW-1, the prosecutrix, PW-15, who was admittedly a cleaner in the same bus has also completely supported the version of the prosecutrix and, thus, the prosecution has proved its case beyond any shadow of doubt. 11. I have heard learned counsel for the parties, who have taken me through the records of this case. It would be useful to analyse the evidence of some of the material evidences. 12. PW-1, prosecutrix has deposed that she does not know her age. Last year in the month of August she was going to village Nanota to meet her maternal uncle, namely, Shri Choor Singh. She deposed that she reached her uncle‟s house in July last year and left his house on 2nd August for Saharanpur. She took bus No. 2484 for Saharanpur and reached there at noon time. From the bus stand she started for police lines as she had to go Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 9 of 27 to see the SSP. After meeting the SSP, she returned at about 3:20 pm and again took bus No. 2484 and reached Delhi at about 7:30 pm on the same day. She enquired about the way to Mayur Vihar from the conductor of the bus Anil. Appellant, Anis told her that appellant, Anil would leave her at Mayur Vihar and she went with him in another bus. She thought that the bus was for Mayur Vihar but later on she came to know that the said bus was for Ghaziabad. Anil asked her to get down at a petrol filling station after Gokalpuri and at the said petrol pump, bus No. 2484 was already parked. It was the same bus in which she had come to Delhi and appellant, Mahesh had brought bus No. 2484 from Saharanpur to Delhi. Appellant Anis was also in the said bus alongwith a young boy. Appellant, Anis told her that bus No. 2484 will drop her wherever she wanted to go. The bus was then taken away from the petrol pump and was driven at some distance from the petrol pump and then they stopped the bus. It was night time. Appellant Anis, Mahesh and Anil then raped her against her will on the floor of the bus No. 2484. PW- 1 deposed that she could not raise any alarm because they had held her hands and appellant Anil had gagged her mouth and there was nobody around to hear her. They raped her turn by turn and while one was raping, the other was muffling her mouth, and preventing her from resisting physically. The fourth young boy who was about her age, however, did not rape her. Then the appellants took her in the same bus to a Gurudwara at the banks of Yamuna and stopped the bus outside it. Appellant, Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 10 of 27 Mahesh then asked her to sleep with him in the same bus, but she refused. Then another bus came whose number she did not know. The appellants had a chat with the driver of that bus and he too casted a bad eye on her. She at that time requested the appellants to allow her to go to attend the call of nature. Though appellant Anis objected, she somehow insisted and managed to get down. Then after turning, she approached the other bus and from there she ran away. Seeing her running away the appellants also fled in their bus. She then saw the board of a police post and went there and narrated the entire incident to the police officials present there. The police officials accompanied her to search for bus No. 2484, but they could not trace the said bus. The police officials then told her to leave them as they wanted to further search the bus. She then came to ISBT to look for the said bus. There another police official enquired from her as to whom she was waiting for and she narrated the entire incident to him. The police official took her to P.S., Civil Lines and where her report was recorded. Thereafter the police brought her to P.S., Gokal Puri and she pointed to the place where the bus was parked and she had been raped in the bus. 13. PW-1 deposed that when the appellants had raped her, they had forcibly removed her salwar and underwear. Later on she had again worn them. The next day, the police took her to a hospital, where she was medically examined. The doctor took into possession her under wear which the appellant persons had Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 11 of 27 forcibly removed and which she had worn after the rape had been committed upon her. PW-1 further deposed that the police of Civil Lines was with her when bus No. 2484 was seized at ISBT along with appellant, Mahesh, who was the driver of the said bus. Then they returned to P.S. Civil Lines and the police told her that the case actually pertained to P.S. Gokal Puri and stated that the case shall be transferred to that police station. The appellants Anis and Anil were produced by the owner of the bus No. 2484 and they were arrested on 5th August. PW-1 also deposed that the jamatilashi with respect to appellants, Anis and Anil was affected in her presence and memos Ex.PW-1/8 and Ex. PW-1/C were prepared and she signed the same. PW-1, deposed that her statement was recorded by the learned Magistrate vide Ex.PW-1/D and she signed the same on its every page. PW-1 has further identified her underwear, Ex. P-1, which she had worn at the time of the alleged incident. 14. In her cross-examination by learned counsel for the appellants, Anis and Anil, PW-1 deposed that she had not told the police that she was aged 18/19 years. She had come to 10, Janpath, Delhi, in connection with the case of death of her sister. She had told her maternal aunt that she was going to Delhi in connection with the death of her sister. Prior to this also she had come to Delhi to follow up her sister‟s case. PW-1 deposed that the place Jawahar Bhawan in Delhi was known to her and where she had come earlier. But 10, Janpath, was not known to her. At 10, Janpath, she had come to see Col. Parishat in Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 12 of 27 connection with the death of her sister. She also deposed that when she was getting down from the bus at ISBT, Delhi appellant, Anis asked her as to where she had to go and at which she replied that she had to go to New Delhi. She further stated that she was not compelled to board bus No. 2484 at the petrol pump, but appellant Anis had assured her that the bus would drop her wherever she wanted to go. PW-1 deposed that near Gokalpuri, she came to know that the bus was not going to New Delhi or Mayur Vihar and at that time her face was muffled by appellant, Anis. PW-1 deposed that she did not raise any alarm because she was afraid that she would be killed as appellant, Mahesh had even threatened her. PW-1 further denied the suggestion that she had a relationship with the appellant, Anis, prior to this incident. 15. On 20.05.1999, in the cross-examination, by learned counsel for appellant, Mahesh, PW-1 deposed that none had committed any forcible, illegal act or rape on her. The appellants were not arrested by the police in her presence. She deposed that it was also correct to say that she had earlier deposed in the Court at the instance of the police. Furthermore it was correct that today she was deposing at her own and without any pressure, force and influence from any side. It was correct that none had committed any wrong thing with her and so she did not wanted to proceed with the case any further. 16. On the subsequent date, in her cross-examination by learned APP, PW-1 deposed that it was correct that her statement was Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 13 of 27 recorded on 27.08.1991 in the Court and thereafter her statement was recorded in the Court on 20.05.1999. PW-1 deposed that in the statement recorded on 27.08.1991 she had deposed that the appellants had raped her against her will. PW- 1 deposed that whatever she had stated on the subsequent date of 20.05.1999 was under the due threat extended by the appellants and so she had stated that none had forcibly raped her. PW-1 deposed that her statement recorded in the Court on 27.08.1991 was true and correct. Today, she was not under pressure from any side and was deposing before the Court on her own and stated that it was correct that all the three appellants had illegally raped her. At this juncture, PW-1 was cross-examined by learned counsel for the appellant, Mahesh and PW-1 deposed that on 20.05.1999, when she had come to the Court, she did not disclose that she had been threatened by the appellants and it was correct that she had not made any complaint in this regard to any authority. PW-1 stated that she was threatened by the appellants in the month of December, 1998, when she was coming to give her statement in the Court. She had taken a train from Saharanpur at about 3:30 a.m., but the exact date of December she did not remember. She was kidnapped by some persons at the instance of appellants on her way from Saharanpur to Delhi, but she did not know those persons who had kidnapped her. PW-1 further deposed that “[n]ext day I got down from the train and leave me at my house by the GRP. GRP Police got down me at Sarsawa railway Station. Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 14 of 27 At that time, I was not conscious. I cannot tell the time due to unconsciousness. Sarsawa does not fall on the way between Saharanpur and Delhi. Three persons followed me from the Railway Station to the train. I cannot say how many other passengers were in that railway coach. But there were other passengers present. Today I do not remember when I became unconscious. No conversation took place with those three persons before getting unconscious. I regained my consciousness after one day and till then I was remained at the Sarsawa Railway Station with the GRP. I was left at my residence by the Sarsawa Railway Station Master as he belongs to my village. I told him about my kidnapping and regarding the case in which I was coming to give my statement to the said Station Master. But due to my unconsciousness I did not tell this thing to GRP. I was informed next morning by the Railway Staff who were posted at the station as I was got down by the GRP at this station and I was unconscious. No statement was recorded by the GRP nor the Station Master called the police. I reached my house at Saharanpur by bus after taking food which was provided to me by Station Master at about 10 A.M. on third day. I had narrated about this to only my mother. I did not write any letter to this Court about this. After December, 1998, I attended this Court only in the month of May, 1999, on receipt of bailable warrant of Rs.1,000/- against me.” PW-1 further deposed that it was incorrect to suggest that she had Crl.A.Nos.17/2001, 116/2001 & 489/2001 Page 15 of 27 introduced a false story regarding her kidnapping and the threat extended to her. 17. PW-7, Dr. Rajesh Gupta, Civil Hospital, deposed that on 03.08.1990 at 3.15 pm he had examined the prosecutrix vide MLC No.627/90. On examination it was found that “there was one abrasion on the right breast medially and horizontally with scab (Kharonch) reddish in colour of 4 cms. Secondly abrasions on left thigh about 1 cm longitudinal scab present”. PW-7 deposed that the MLC prepared by him is Ex.PW-7/A and which bears his signatures at Point A. In cross-examination by learned counsel for the appellants Anis and Anil, PW-7 deposed that it was correct that it was not mentioned as to whether the injuries on the person of prosecutrix were old or fresh in nature. PW-7 deposed that it was correct to say that he has not recorded in the MLC as to how