Crl. A. 40/2009. Page 1 of 30 IN THE HIGH COURT OF DELHI AT NEW DELHI Crl.A. No. 40/2009 Judgment pronounced on March, 20th 2009. # Sumit Gupta …. Appellant Through: Mr. V.K. Shukla, Adv. Versus $ State (Govt. of NCT of Delhi) .... Respondent Through: Mr. Lovkesh Sawhney, Adv. 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. (ORAL): 1. The present appeal has been filed under section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, “Cr.P.C.”). The appellant has impugned the judgment dated 22.12.2008 and order on sentence dated 03.01.2009, passed by the Additional Sessions Judge, Delhi, in Sessions Case no. 25/06, FIR No. 244/04, Sections 376/506 of the Indian Penal Code, 1860 (hereinafter referred to as, “IPC”), Police Station, Welcome. By virtue of the above said judgment dated 22.12.2008 the appellant was found guilty of the offence of rape. Vide order on sentence dated 03.01.2009, the appellant was sentenced to undergo Imprisonment for a term of seven (7) years for the offence punishable under Section 376, IPC. Out of this total period of seven years, the appellant was to undergo two (2) years of Rigorous Imprisonment (hereinafter Crl. A. 40/2009. Page 2 of 30 referred to as, “R.I.”) and five (5) years of Simple Imprisonment (hereinafter referred to as, “S.I.”). The appellant was also to pay a fine of Rs.2,000/-, and in default of the payment of fine, to undergo S.I. for fifteen (15) days. Further, the appellant was found guilty of the offence under section 506, IPC and sentenced to undergo six (6) months of Imprisonment, out of which the appellant was to undergo fifteen (15) days of R.I. and the rest of the term as S.I. It was also held that the benefit of Section 428, Cr.P.C. be given to the appellant, and out of this period, half of the sentence be counted against RI and half against SI. Both the sentences awarded under section 376 and 506, IPC were to run concurrently. 2. Brief facts of the case as noted by the trial Court are that: On the night of 30.7.2004 (mid-night) when prosecutrix [name withheld] was sleeping on the roof of her house with her family members, accused gagged her mouth and brought down her to his room, down stairs. Accused bolted the door from inside and after opening the cord of the Salwar of the prosecutrix committed rape with her. Further, accused had threatened and intimated her in case she disclosed about the incident to her parents. In the meantime, her parents started the search of their daughter, prosecutrix. Father of the prosecutrix got spared his daughter from accused. Thereafter, the matter was reported to the police, accordingly a DD entry was got made. On receipt of DD No.34A Ex.PW- 6/A, ASI Raj Pal Singh and Ct. Bhagat Singh proceeded to the house of prosecutrix. On reaching there prosecutrix and her parents met them. They produced the accused Sumit Gupta with the alleged history of rape committed with the prosecutrix. Statement of prosecutrix, Ex.PW-2/A was recorded and after making endorsement vide Ex.PW-6/B ASI Raj Pal Singh sent rukka to the Police Station through Ct. Bhagat Singh for the registration of the case. In the mean time, spot was inspected and site plan vide Ex.PW-6/C at the Crl. A. 40/2009. Page 3 of 30 instance of prosecutrix was prepared. After sometime Ct. Bhagat Singh came back to the spot with copy of FIR and original rukka. One lady constable also reached there. 3. The prosecution has examined thirteen (13) witnesses whereas two witnesses have been examined by the defence. The statement of the appellant was also recorded under section 313, Cr.P.C. wherein he denied all the allegations levied against him and stated that he had been falsely implicated in this case. 4. The First Information Report recorded at the instance of the prosecutrix reads as herein, “[o]n 2nd floor Sumit Gupta resides with his brother Manish Gupta as tenant. We also live in this house as tenant. Due to having failed in class 9th and illness my parents had discontinued my studies and had got my name struck off my name from the school. Sumit Gupta used to have roving eyes towards me and used to make signals many a times about which I had told my parents, who had scolded him many a times. Due to summer season, I along with my parents and brother was sleeping upon the roof of the house. Sumit Gupta also sleeps on the roof about which my parents had asked him not to sleep on the roof of the house who had said that he too is a tenant in this house. In the night of 29/30.7.2004 I was sleeping on the roof along with my parents and brother and on the roof of this house Sumit Gupta was also sleeping. At about 12:45 AM in the night I felt that somebody was waking me up and my eyes suddenly opened, then I saw that Sumit Gupta is standing nearby cot. I immediately tried to raise alarm then Sumit Gupta closed my mouth by keeping his hand on my mouth and whispered in my ear bringing his mouth near it and said that if you will raise an alarm then I will kill you. Sumit Gupta Crl. A. 40/2009. Page 4 of 30 closing my mouth, brought me forcibly from the roof of the house to 2nd floor, threw me on the bed and taking out my salwar raped me forcibly and told me that if I tell about this to my parents then he will kill me and after opening the latch he turned me out of the room. Holding my salwar I came to my parents and told them everything. My parents apprehended Sumit Gupta and my father made a call upon phone No.100…...” 5. It would be useful to analyse the evidence of some of the material witnesses. 6. PW-1, Sh. Satish Jain (father of the prosecutrix) has deposed that on 29.7.2004, in the night time, he was sleeping on the roof of his house. His daughter (prosecutrix) (name withheld) aged 17 years was also sleeping on the roof. PW-1 deposed that he was a tenant in the said house on the ground floor and that the appellant was a tenant on the second floor of the house. His younger daughter (name withheld) told his wife that the prosecutrix was not available on her bed and his wife woke him up. He went down stairs to see if the prosecutrix had gone to the toilet. He could not trace the prosecutrix. PW-1 further deposed that his son was with him. The appellant asked his son as to what had happened. His daughter was in the room of the appellant. The appellant spared his daughter and the prosecutrix came out holding her 'salwar'. His daughter (prosecutrix) told him that she had been raped by the appellant to which she had resisted but the appellant did not agree. PW-1 further deposed that his daughter told him that the appellant had raped her in his room and thereafter he informed the police. In cross-examination by learned counsel for the appellant, PW-1 deposed that the house is three storeyed and the appellant used to Crl. A. 40/2009. Page 5 of 30 live on the second floor and that he used to live on the ground floor. PW-1 further deposed that “[m]y entire family was sleeping on the roof as it was summer season. Accused alone was sleeping on the roof. Accused used to live with his brother.” PW-1 deposed “[m]y statement was not recorded by the police. I had told the police that rape was committed by my daughter. I did not tell that my daughter was teased by the accused.” PW-1 denied the suggestion that his daughter (prosecutrix) went to the room of the appellant of her own accord. 7. PW-2, the prosecutrix, deposed that on 29.7.2004, she was living in Gorakhpark on the ground floor of the house and that the appellant alongwith his brother Manish used to live on the second floor of the same house. PW-2 deposed that the appellant used to stare her and her father had rebuked him a number of times. On the day of incident she was sleeping on the roof of the house with her family members. She was sleeping on a cot. PW-2 deposed that she felt that someone was standing nearby her cot and the appellant was standing there. The appellant gagged her mouth and took her down stairs to his room. The appellant bolted the door from inside, opened her salwar and raped her. She went upstairs holding her salwar and informed her parents. Tinku and her father were on the roof. The appellant threatened her that in case she disclosed about it to her parents, he will kill her. PW-2 deposed that her parents called the police. Her statement, Ex.PW-2/A was recorded by the police and which bears her signatures at point 'A'. She was got medically examined. PW-2 also identifies her „salwar‟, Ex.P-1 as the same which she was wearing at the time of the incident. In her cross-examination by learned counsel for the appellant, PW-2 Crl. A. 40/2009. Page 6 of 30 deposed that the police reached their house within five minutes. She told the police about the rape. The police recorded her statement there and she signed the same. PW-2 deposed that it was correct that she was on speaking terms with the appellant before the incident. She was sleeping on the roof by the side of her father. She was sleeping in between her parents. PW-2 further deposed that she did not raise any alarm because the appellant had threatened that if she wakes up her parents, he will kill her. PW-2 deposed that she did not raise any alarm from the roof till reaching the room of the appellant. At this stage a question was put to PW-2, and which is reproduced below: “Q. When the accused opened the cord of your salwar why you did not cry at that time? The question asked thrice but the witness did not reply.” 8. PW-2 further deposed that it was wrong to suggest that she had gone with the appellant at her own consent and when she was coming out of his room, she found her father awake and as such she narrated a false story of rape to her father. PW-2 denied the suggestion that the appellant had not committed rape with her or that she had been deposing falsely. 9. PW-3, Poonam Jain, wife of Sh. Satish Jain, (mother of the prosecutrix) deposed that on the intervening night of 29.07.2004 and 30.07.2004, she was living in the aforesaid house on the ground floor and the appellant was living with his brother on the second floor of the house. PW-3 deposed that she along with her husband and other family members were sleeping on the second floor‟s roof. Her daughter (prosecutrix) aged 16 years, was also living with them on the roof on a cot and the appellant was also sleeping on the roof. At about 12.00 p.m. and 12.30 p.m. the Crl. A. 40/2009. Page 7 of 30 appellant came near the cot of her daughter and took her to his room after gagging her mouth. Appellant removed the Salwar of her daughter and also removed the clothes and committed rape with her daughter. Her younger daughter, namely, Shikha Jain, woke up and told her that that the prosecutrix was not on her cot. They searched for the prosecutrix in the toilets and then she heard the noise of Sumit who asked her son Tinku as to what had happened. Her daughter came out from the room of the appellant. The prosecutrix told her that she was raped by the appellant and her husband informed the police. Her daughter (prosecutrix) was got medically examined and the report was lodged by her with the police. 10. In her cross-examination by learned counsel for the appellant, PW-3 deposed that she and the appellant were tenants in the house. Achal Jain with his wife Kusum and Manoj Jain with his wife Madhu Jain, were also living as tenant in the said house. She further deposed that when her [younger] daughter woke her up, she came to know that the prosecutrix is not on her cot. PW-3 denied the suggestion that her daughter was in love with the appellant or that they wanted to marry or that the appellant was not agreeable to them and for any such reason he has been falsely implicated in the case. 11. PW-6, ASI Raj Pal Singh, P.S. Welcome, deposed that he was posted as ASI at Welcome. On receipt of DD No.34A, he joined Ct. Bhagat Singh in the investigation of this case. He recorded the statement of the prosecutrix, Ex. PW2/A, and obtained her signature at point A after the same had been read over to her. He made his endorsement, Ex.PW6/B, and sent rukka to the Police Station. PW-6 Crl. A. 40/2009. Page 8 of 30 further deposed that he interrogated the appellant and arrested him vide arrest memo Ex.PW-4/B and conducted his personal search vide memo Ex.PW4/C. In his cross-examination by learned counsel for the appellant, PW-6, deposed that he recorded the statements of prosecutrix and her parents only. He did not record the statement of any other neighbour or inmate of the building either on the date of occurrence or thereafter. PW-6, further deposed that he had not seized the bed sheet of the room in which the incident was alleged to have taken place. 12. PW-10, Dr. S. Kohli, CMO, GTB Hospital, deposed that he has seen the MLC exhibited as Ex.PW6/E, which was prepared by Dr. Subhash and that he identified the handwriting and signature of Dr. Subhash at point A on the MLC. PW-10 deposed that as per the opinion given by Dr. Subhash there was nothing to suggest that the patient could not perform sexual intercourse. In his cross- examination by the counsel for the appellant, PW-10 deposed that as per the MLC, semen sample could not be produced and only blood sample was handed over to the Constable in a sealed cover. 13. PW-11, Dr.Seema Sharma, Sr. Gynae, GTB Hospital, Delhi has deposed that on 30.07.04, during her posting as a Sr.Gynae, she had examined the prosecutrix, daughter of Satish Jain, brought by Constable Kamlesh at about 6:30 a.m. with an alleged history of sexual assault. PW-11 deposed that “on examination there was no mark of injury was present. On local examination hymen was intact, no sign of bleeding was found. I advised her for x-ray bony age. Smear from vulval are taken and two glass sides alongwith the undergarments in sealed parcels were handed over to the police.” PW-11 deposed that the MLC, EX. PW-6/D which was Crl. A. 40/2009. Page 9 of 30 already exhibited, was in her handwriting and bears her signature and is correct. In her cross-examination by learned counsel for the appellant, PW-11 deposed that “[a]ccording to this MLC there was no sign of rape found on the person of the [prosecutrix]”. 14. DW-1, Ms. Madhu Jain, w/o Manoj Jain, (tenant in the said building) deposed that in July, 2004, prosecutrix was residing in the house with her father as a tenant on the ground floor, she was a tenant on the first floor and the appellant was a tenant on the second floor. DW-1 deposed that she was sleeping during summers on the roof of the house on the night of 29/30.07.2004. She woke up by hearing the noise and saw that the father of the prosecutrix was scolding his daughter as to where was she going in the night and if she was going to the room of the appellant and thus the prosecutrix could not reach the room of the appellant. Prosecutrix and her father were also sleeping on the roof. Prosecutrix was a girl of unstable mind. She used to enter in the rooms of male persons and on two or three times had entered in the room of his brother-in-law (Jeth) who had turned her out from his house. She further deposed that Sumit had no affair with prosecutrix as per her knowledge and no incident of rape or alleged rape or molestation by Sumit with prosecutrix had taken place on the night of 29/30.07.2004. She also deposed that the incident may be between 1.30 to 2.00 a.m. of the night. The police had not taken her statement. In her cross- examination by the counsel for the State, DW-1, deposed that all the tenants were sleeping on the top of the roof. DW-1, voluntarily deposed that the appellant was sleeping in the room but not on the roof. DW-1 stated that the appellant occasionally slept on the roof top. DW-1 further deposed that when the appellant was arrested by the Crl. A. 40/2009. Page 10 of 30 police in the present case, she did not go to the police station to tell the SHO that the appellant was falsely implicated by the police in the present case. She voluntarily further deposed that as nobody had asked her to come to the police station or to enquire from her. However, she denied the suggestion that she was deposing falsely to save the appellant from prosecution of the present case. She further denied the suggestion that appellant was not having a good character and he was in the habit of teasing the prosecutrix on earlier occasion also. 15. DW-2, Ms. Kusum Jain, w/o Sh. Achal Kumar Jain, deposed that the appellant was her tenant in the year 2004. She further deposed that she used to frequently visit the above house and that Madhu Jain is her Bhabhi. DW-2 deposed that she knew the appellant Sumit since childhood and he was a boy of very good character. She used to go in the above house almost daily and at times she used to stay there in the night also. On the night of the incident i.e. 29/30.07.2004, she was sleeping in the house of her Bhabhi. She further deposed that on that date she and her Bhabhi were sleeping on the roof and that she had not seen any incident of the prosecutrix coming out of the room of the appellant on that night. She woke up after hearing the commotion and noise of the voice of father of the prosecutrix, scolding her as to where was she going in the middle of the night. The time was nearly 12 in the night. DW-2 deposed that the father of the appellant on his own called number 100 from the phone of a neighbour in spite of their telling him not to do so. DW-2 further deposed that the prosecutrix is of unstable mind and mentally not fit and that she used to go on her own to any place or any where. The appellant had no affair with the Crl. A. 40/2009. Page 11 of 30 prosecutrix and had never tried to molest her. DW-2 has denied that on the night of 29/30.04.2009 the appellant had made any attempt either to molest or rape the prosecutrix in his room. 16. In her cross-examination by the learned counsel for the State, DW- 2 deposed that the appellant was mentally unstable and was getting treatment from GTB Hospital, and this was told to her by the mother of the prosecutrix. She denied the suggestion that she was deposing falsely to save the appellant as he belonged to her native village. She further denied the suggestion that she did not stay at her premises during the night of 29/30.04.2004. She further deposed that she did not go to the police station and told the SHO that the appellant has been falsely implicated in the present case. She voluntarily deposed that the policeman who had arrested the appellant had made an enquiry from her and she had told him that the incident of alleged rape was false. 17. Learned counsel for the appellant submits that both the judgment and the order on conviction passed by the learned ASJ are perverse, arbitrary and based on whims, conjectures and possibilities. In fact the appellant has been convicted in the absence of any evidence against him and the judgment is against law and facts of the case. It is the case of the learned counsel for the appellant that the prosecutrix has alleged that when she was sleeping in-between her parents and beside her sister and brother on the roof of the third floor of the house measuring thirty seven sq. ft., and where other inmates of the house were also sleeping, therefore it was not possible for the appellant, to wake her up, gag her mouth and take her to his second floor rented tiny Crl. A. 40/2009. Page 12 of 30 accommodation. More so, when there is no allegation of holding of any weapon by the appellant. 18. Learned counsel for the appellant submits that if it is assumed that the incident actually took place, then the prosecutrix could have raised an alarm, or could have shouted and cried for help. Further if she was being taken by the appellant to his second floor room, then while going there also she could have raised an alarm, or the prosecutrix could have even raised an alarm inside the room. The threat by closing the mouth is imaginary and is not possible. Learned counsel submits that as per the statement of the mother of the prosecutrix, the younger brother of the appellant, Manish was also in the room where the prosecutrix was allegedly taken. However, there is no possibility that a person would dare to commit rape with a girl in front of his own real younger brother. 19. It was next contended by learned counsel for the appellant that except the parents of the prosecutrix, the I.O. did not examine any other inmates of the building who were also sleeping on the roof on the night of the alleged incident. So much so that he did not even examine the brother and sister of the prosecutrix, nor were they produced in the Court. Similarly, the brother of the appellant was not examined. The FIR of this case was lodged on the basis of the oral testimony of the prosecutrix, yet her statement was not recorded under Section 164, Cr.P.C., which clearly establishes that the report was lodged only at the instance of the father of the prosecutrix. It is stated that a possibility cannot be ruled out that the father of the prosecutrix was holding a grudge against the appellant and thus wanted to implicate him. He submits that though the intimation over the phone to the police was about Crl. A. 40/2009. Page 13 of 30 teasing, which was duly recorded by the police in its D.D., but by the time the girl was taken to the Police Station, a rape case was registered against the appellant, which was clearly an afterthought of the father of the prosecutrix. 20. Learned counsel for the appellant submits that even if the story of the offence of rape is true, then the prosecutrix may have also resisted and there should have been signs of resistance and injuries. However, in the instant case, no injuries or even bruises were found on the person of the prosecutrix or on the appellant herein. In the medical examination, the hymen of the prosecutrix was found intact and PW-11, the doctor, in her statement before the Court, completely ruled out the possibility of rape. Furthermore, the underwear of the prosecutrix and the half pant worn by the appellant along with vaginal smears slides