Crl. A. No.910/2006 Page 1 of 54 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Appeal No.910/2006 % Date of Decision: 23.11.2011 Bhura Singh …. Appellant Through: Mr. Amit Khanna, Advocate. Versus State of Delhi …. Respondent Through: Mr.M.N.Dudeja, APP for the State. Ms.Meenakshi Lekhi, Advocate for the complainant/prosecutrix CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE V.K.SHALI 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 ANIL KUMAR, J. 1. The appellant has challenged his conviction in Sessions Case No.115 of 2003, titled as „State v. Bhura‟, arising from the FIR No.350 of 2003, under Sections 323/325/ 342/ 354/ 387/ 376 Indian Penal Code, PS Anand Vihar convicting the appellant under Sections 376, 326, 342 of the Indian Penal Code and sentencing the appellant to undergo rigorous life imprisonment under Section 376 and 326 of the Crl. A. No.910/2006 Page 2 of 54 Indian Penal Code and a fine of Rs.5,000/- and in default to undergo simple imprisonment for three years. The appellant was further sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 342 of the Indian Penal Code. 2. The case of the prosecution in brief is that Ms.Rinchu, the prosecutrix was working as a Private Nurse/Attendant, in Shanti Mukund Hospital, situated within the bounds of Police Station Anand Vihar. At the time of incident she was engaged to look after Sh. S.K. Kaushik, an aged patient, in room No. 208, which is situated on the second floor of the hospital. He was a paralytic patient and he was unable to speak or move. Ms.Rinchu used to attend to him from 8 p.m. to 8 a.m. everyday. On the night intervening 6/7th September, 2003, Ms.Rinchu was lying on the side seat of the attendant and she was feeling drowsy, because of which she drifted off to sleep. Suddenly, she felt that somebody was fondling her breasts. She opened her eyes and found that accused Bhura, who was a sweeper in the hospital and was known to Ms.Rinchu for the last ten days, was present there. Ms. Rinchu stood up on her feet and asked him to get out of the room. When Bhura, the appellant, did not respond, she threatened to call the sister-in-charge by ringing the bell. She then started moving her hands towards the bell, but Bhura caught hold of her hands. The prosecutrix then screamed but the accused had put his hand on her mouth and Crl. A. No.910/2006 Page 3 of 54 gagged her. Consequently, Rinchu, the prosecutrix was unable to raise her voice. In the meantime, Bhura dragged her towards the second patient‟s bed in the room which was lying unoccupied. The prosecutrix then threw up some blood and fell down on the floor as she became unconscious. During the wee hours, at about 4:30 a.m., she regained her consciousness. She then tried to open her eyes but she could not see from her right eye. Thereafter, she opened her left eye and touched her body and found that her panty, salwar and chunni had been removed. With great difficulty, she picked her clothes and put them on. She touched her surroundings and she realized that she was lying in the bathroom with her blood which had spread from her mouth and her eye ball. She reached the door of the bath room, however, found that it was bolted from outside. She was too much in pain and shock, which made her incapable of screaming and so she sat down taking the support of the bathroom walls. 3. At about 6:30 a.m., a ward Boy, PW-8 Vyas Sharma arrived and he opened the bathroom and found the prosecutrix. He brought her out of the bathroom. Prosecutrix then informed him that she was raped by the accused Bhura, the sweeper during the night. The Ward Boy and Sister took her to the casualty and immediately tended to her eye, and it was bandaged, as her eye was seriously injured. During the medical examination of the prosecutrix, it also transpired that her menstrual Crl. A. No.910/2006 Page 4 of 54 period had also started. Prosecutrix during medical examination complained of severe pain in her private parts. 4. The police was informed, and the officials of the police immediately reached the hospital. SI Kishore Pandey, was deputed as the Investigating Officer of the case, and on arriving at Hospital he found the victim, Ms.Rinchu under medical treatment. At that time the doctors had declared her unfit for making a statement. SI Kishore Pandey, therefore, recorded the statement of PW-8 Vyas Sharma, the Ward Boy and got the present case registered. SI Kishore Pandey visited the spot and found blood in the bathroom and floor of the room. He recovered one chunni, blood stained bed sheets and clothes of the prosecutrix. On 7th September 2003, prosecutrix was shifted to GTB hospital for operation on her eyes. Her statement was thereafter, recorded on 8th September, 2003. 5. It also transpired that accused Bhura had absconded from the hospital since morning of the incident. SI, Kishore Pandey had gone to the jhuggi of the accused situated in Seema Puri and found it locked. However, at about 9:30 a.m. Bhura came to his Jhuggi and was apprehended by the police. The accused was arrested at the instance of Anil Saxena, who had deputed Bhura and the other members of the staff in the hospital. Accused was then medically examined on 8th Crl. A. No.910/2006 Page 5 of 54 September 2003. On 15th September, 2003 IO Kishore Pandey seized the eye-ball of the prosecutrix, which had come out during the alleged incident. 6. Accused was charged under Sections 354/ 506/376 of the IPC. Later on the charges were altered by the then Learned Additional Sessions Judge, Sh. J.M Malik by a detailed order dated 19th January 2005 to charges under Sections 376/ 342/ 326 of the IPC. The accused pleaded not guilty to the charges framed against him and claimed trial. 7. The prosecution examined 21 witnesses in support of its case. Thereafter, the entire evidence as well as the circumstances against the appellant were put to him under Section 313 of the Crl. P.C. In his statement under Section 313 the accused simply denied all the circumstances and the evidence against him. He even denied his presence at the spot and any knowledge about the matter. He stated that at the time the incident had taken place he was present at his house and that he had instead surrendered himself to the police in presence of his brother Rajinder. The appellant did not lead any evidence in defense. 8. On considering the evidence on record and the case of the prosecution as well as the defense of the accused, the Trial Court held Crl. A. No.910/2006 Page 6 of 54 that the prosecution had successfully proved beyond reasonable doubt the charges under sections 376, 326 and 342 of the IPC and convicted him for the same and sentenced him to undergo rigorous life imprisonment under Sections 376 and 326 of the Indian Penal Code and a fine of Rs.5,000/- and in default to undergo simple imprisonment for three years. The appellant was further sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 342 of the Indian Penal Code. The appellant has filed the present appeal against his order of conviction and sentence. Appellant’s Pleas: 9. The learned counsel for the appellant had questioned the veracity of the allegations made by the prosecutrix contending that the statement of the prosecutrix made to the police under Section 161 of the Cr.P.C, Ex.PW 19/DA was delayed and hence no reliance can be placed on the same. As per the learned counsel, the delay in recording the statement was without any reason since as per the deposition of PW-2 Dr. K.K Rajan, who categorically deposed that the prosecutrix was conscious and in her senses on the day of the occurrence. According to learned counsel for the appellant, the delay in recording the statement of the prosecutrix casts a shadow of doubt on her version and therefore the same should not form the basis of concluding the guilt of the appellant. Crl. A. No.910/2006 Page 7 of 54 10. The learned counsel for the appellant emphasized various alleged inconsistencies in the deposition of the prosecutrix as PW-19, with the statement recorded by the police under section 161 of the Cr.P.C, Ex. PW 19/DA. According to the learned counsel, the alleged inconsistencies are the improvements made by her with the sole intention of falsely implicating the appellant in the present matter. The learned counsel for the appellant has relied on Ramdas and Ors. v. State of Maharastra (2007) 2 SCC 170 contending that conviction on the sole basis of the testimony of prosecutrix is not sustainable when the circumstances reflect shadow of doubt over the correctness of prosecutrix version. Therefore the Learned Counsel contended that the inconsistencies affected the very root of the matter and therefore the appellant is entitled to the benefit of doubt and his conviction and sentence by the Trial Court ought to be set aside. 11. The learned counsel has also emphatically relied on the deposition of PW 3 Dr. Archana Bachchan, a consultant who had medically examined the prosecutrix. The counsel contended that as per the endorsement in the MLC and as per the deposition of PW 3 there were no vaginal injuries and that the cervix was normal. The learned counsel further contended that during the cross examination, PW 3 had deposed that the history written on Ex PW 6/A (the MLC) which was Crl. A. No.910/2006 Page 8 of 54 prepared on the very night of the incident at about 9:00 p.m. was on the basis of version given by the prosecutrix, in which she had not named the appellant or any other person nor had she disclosed that she was having any pain in her private parts. Even in the answer to the query as to who the culprit was, PW3 deposed that the prosecutrix had replied that she did not know who it was. Thus according to the counsel the name of the appellant has been included at a subsequent stage with the clear intention of falsely implicating him in the matter. 12. It is further contended that the facts which would establish rape of the prosecutrix have not been established nor substantiated from the statement of PW-3. There was no injury found on the private parts of the prosecutrix, nor were any semen stains found and the blood in the vagina of the prosecutrix was on account of menstruation and not rape. It is further emphasized that the tear on the hymen recorded in the MLC as stated by PW-3 herself was not a fresh tear and thus could not have been on account of alleged rape by the appellant. PW-3 had explained the difference between menstrual blood and blood due to rape. She had even deposed that the bloodstains on the prosecutrix were of her menstrual blood and not of blood due to rape. PW-3 had further deposed that in all probabilities there should have been injuries, if there was intercourse for the first time. PW-3 had also stated that the prosecutrix had never complained about pain in her private parts. The Crl. A. No.910/2006 Page 9 of 54 learned counsel has also contended that according to him, since the prosecutrix had been unmarried there ought to have been some vaginal injury and that the trial court gravely erred in not taking the deposition of PW-3 more seriously. Therefore, the learned counsel contended that it is a settled law that conviction cannot be based on the sole testimony of the prosecutrix, which is inconsistent and unsupported by the medical evidence and evidence of other witnesses. To buttress his argument he has relied on Sadashiv Ramrao Badbe v. State of Maharashtra &Ors: (2006) 10 SCC 92, Dilip & Anr. v. State of Madhya Pradesh: 2001(4) Crimes 105(SC), Vimal Suresh Komble v. Chaluverapinake Apal S.P. & Anr: 2003 SCC (Cri.) 596, Yserumalla Latchaiach vs. State of Andhra Pradesh: (2006) 3 SCC (Cri) 373, Mohd. Habib v. State: 1988 CC cases 401 (HC), Zahroor Ali v. State of U.P: 1989 Cr.L.J. 1177 and State of Karnataka v. Mapilla P.P.Soapi: 2003 (3) JCC 1543. 13. The learned counsel has also urged that the prosecutrix herself had not deposed regarding any penetration as at the time of alleged rape as she was unconscious. Thus the factum of penetration which is imperative to substantiate the charge of rape had not been proved as against the appellant. The prosecutrix had merely stated that she came to her senses and realized that she had pain in her private parts. However, this pain could have even been attributed to the menstruation Crl. A. No.910/2006 Page 10 of 54 which the prosecutrix herself admitted, she was having at the time. Thus according to the learned counsel there is absolutely no evidence of any penetration by the appellant and therefore, the very base of the prosecution‟s case is not proved against the appellant and is therefore not sufficient to inculpate him. 14. Learned counsel has further contended that neither Smt. Lizzy who was giving duty on the second floor, the place where allegedly the prosecutrix was allegedly raped nor the patient Sh. S.K. Kaushik, for whom the prosecutrix was engaged to take care of, have been examined. The learned counsel also submitted that just because the patient was unable to move or speak does not imply that he was in a coma and therefore, should have been examined by the Police. Thus, it is contended that this amounts to a major lacuna in the version propounded by the prosecution and therefore the appellant is entitled to the benefit of the same. 15. Learned counsel has further contended that the Trial court has gravely erred in punishing the appellant under section 326 of the IPC because, even if, it is to be believed that the appellant had in fact caused grievous hurt to the prosecutrix, since neither the prosecutrix has deposed about any weapon used, nor had the prosecution alleged the same, as it is not the case of the prosecution that the appellant had Crl. A. No.910/2006 Page 11 of 54 caused the injury by means of any instrument for shooting, stabbing or cutting or that any instrument was used as a weapon of offence. Thus the appellant can only be charged under Section 325 of IPC and not under Section 326 of IPC. Thus it is contended that the learned Trial judge has failed to differentiate between the ingredients of Section 325 & 326 of the IPC. As while under section 325 the punishment prescribed is for causing grievous hurt, under section 326 of the IPC, the punished prescribed is for causing grievous hurt by means of any instrument for shooting, stabbing or cutting or any instrument which is used as a weapon of offence. The learned counsel further contended that since the appellant was not put the circumstance of causing harm to the prosecutrix under Section 325, the same cannot be held in evidence against him, as the non-examination of the accused under Section 313 with respect to this circumstance has caused him a lot of prejudice. Therefore, in light of the facts and circumstances it is contended that the charges framed as against the appellant is erroneous and hence it is ground in itself to quash the entire proceedings. 16. Learned counsel has further urged that the prosecutrix herself has held Shanti Mukund Hospital to be responsible for the permanent loss caused to her eye for which even an FIR No. 447 of 2003 was also registered under Section 336 of the IPC with the PS Anand Vihar, and Crl. A. No.910/2006 Page 12 of 54 therefore, the appellant cannot be held responsible for the same and that the case is just a ploy to make the appellant responsible for the negligence of the hospital. Learned counsel has argued that there is hardly any evidence against the appellant and that the prosecution has miserably failed in proving its case against the appellant which has not been properly considered by the Trial court in its decision, which is merely based on conjectures and surmises put forward by the prosecution. Respondent/ State's pleas: 17. Per contra, learned counsel for the State, Mr. M. N. Dudeja, has contended that the prosecution has on every aspect successfully proved its case. It has been rightly concluded by the Trial Court about the guilt of the appellant. The learned counsel also asserted that the testimony of the prosecutrix is unimpeachable and therefore the Trial Court has been absolutely justified in relying on the same. He vehemently argued that the inconsistencies as alleged by the prosecution are minor and immaterial, and that they do not under any circumstance exculpate the appellant. He has relied on the judgment of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 in support of his submission. Crl. A. No.910/2006 Page 13 of 54 18. The learned counsel has also relied on the testimony of PW-9, AK Saxena, who is the owner of a contract company under the name of Baba House Keeping Services from where the appellant Bhura was deputed. As per PW-9 on reaching the hospital he had come to know that the appellant had fled after committing rape on the prosecutrix and he even assisted the police in tracing out the appellant, who was subsequently arrested vide arrest memo Ex PW 9/A. Therefore the learned counsel contended that the very fact that the appellant had fled after committing the offence is a relevant fact under Section 8 of the Indian Evidence Act, 1872 and that the appellant was at the time of the occurrence employed at the hospital has also been established. 19. The learned counsel further asserted that the prosecutrix had at the very first instance informed the ward boy, PW-8 who had found her in the locked bathroom, that she had been raped by Bhura the sweeper boy. This has been categorically stated in the statement of the ward boy given to the police, Ex PW 8/A. The learned prosecutor thus contended that the name of the appellant has certainly not been subsequently added in the investigation, and that he was the prime suspect since the very start of the case. 20. It is further contended that since there is no doubt as to the deposition of the prosecutrix there is no legal obligation on the part of Crl. A. No.910/2006 Page 14 of 54 the prosecution to look for corroboration. In order to substantiate his submission, the learned counsel has relied on the following judgments: State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, Tulshidas Kanolkar v. State of Goa AIR 2004 SC 978, State of Maharashtra v. Chandraprakash Kewlchand Jain AIR 1990 SC 658, Madho Ram & Anr. v. The State of UP AIR 1975 SC 469, State of Andhra Pradesh v. Gangula Satya Murthy AIR 1997 SC 1588, and Shri Bodhisattwa Gautum v. Miss Subra Chakraborty AIR 1996 SC 922. 21. As per the learned counsel for the state, the other evidences on the record, has also fully corroborated the allegations of the prosecutrix, and consequently the guilt of the appellant has been established beyond reasonable doubt. In any case the appellant has not been able to impute any motive against the prosecutrix to have falsely implicated him in the case. There was absolutely no evidence of any enmity between the prosecutrix and the appellant, and therefore, there is no reason to doubt the deposition of the prosecutrix. Reasons 22. This court has perused the entire evidence on record and heard the learned counsel for the parties in detail. This is a settled law that in reversing the finding of conviction the High Court has to keep in view the fact that the presumption of innocence is still available in favor of Crl. A. No.910/2006 Page 15 of 54 the accused. Even if on fresh scrutiny and reappraisal of the evidence and perusal of the material on record, if the High Court is of the opinion that another view is possible or which can be reasonably taken, then the view which favors the accused can be adopted. But the view taken by the trial Court which had an advantage of looking at the demeanor of the witnesses and observing his conduct in the Court is not to be substituted ordinarily by another view which may be reasonably possible in the opinion of the High Court. Reliance for this can be placed on 2009(1) JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the Crl. A. No.910/2006 Page 16 of 54 conviction of an innocent. So another view is possible on the basis of pleas and contentions of the appellant is the point for consideration. 23. The backbone of the entire prosecution‟s story is undoubtedly the evidence of the prosecutrix, PW-19. It is imperative to threadbare and consider the veracity of this witness. The prosecutrix had deposed about the incident, specifically on three important aspects which are as follows: at the first stage is the statement made to the Ward boy, PW-8 who had found her in the bathroom and rescued her, and whose statement was later on recorded by the police as Ex PW 8/A; secondly her statement recorded by the police under Section 161 as Ex PW 19/DA; and finally her testimony before the court as PW-19. The learned counsel for the appellant had contended that there are major inconsistencies in all these statements made by the prosecutrix and thus her testimony is devoid of any credibility and therefore it should not be relied on. 24. At this stage it will be pertinent to examine each of the statements made by the prosecutrix. In the statement made by the prosecutrix to the Ward Boy, PW-8 when he rescued her, he subsequently deposed to the police as Ex PW 8/A on 7th September, 2003 i.e. on the day of the incident categorically stating that the prosecutrix had told him that it was the appellant Bhura, the sweeper Crl. A. No.910/2006 Page 17 of 54 who had raped her and kept her locked in the bathroom. The relevant portion of his testimony is as follows: “Maine bedsheet va patient ki spunge karna that aur ek ladki Rinchu joki patient ki dekhbhal karti thi mujhe kamre mein nahi mili aur maine bathroom ka darwaza khola toh vah diwar ke saath baithi hui thi aur mujhe dekh kar boli ki Bhura naam ke sweeper ne meri izzat loot li hai jisne chehre par chot ke nishan the meine ….. sister-in- charge….. aur fir maine anya staff ke sath ladki Rinchu ko casuality mein le gaya. Bhura