Crl.A.No.No.390-2004 Page 1 of 28 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A.NO.390/2004 & CRL.M.B.NO.1471/2008 Date of pronouncement: 02 March, 2009 Mohd. Rafiq .... Petitioner Through : Mr.I.B.S. Thokchom, Advocate Versus STATE OF NCT OF DELHI .... Respondent Through : Mr.M.P. Singh, 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. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, Cr.P.C.) directed against the judgment dated 27.4.2004 and order on sentence dated 27.4.2004 passed by the learned Additional Sessions Judge in Session‟s Case No.275/2002, FIR No.630/2001 under Sections 376/506 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), P.S. Sangam Vihar, Delhi. By virtue of which the appellant has been sentenced to undergo Rigorous Imprisonment for twelve (12) years and to pay a fine of Rs.10,000/- for the offence punishable under Section 376, IPC, and in default of the payment of fine to further undergo Simple Imprisonment for one year. The appellant was further sentenced to undergo Simple Crl.A.No.No.390-2004 Page 2 of 28 Imprisonment for two years for the offence punishable under Section 506, Indian Penal Code, without further sentencing him to pay a fine for the offence punishable under Section 506 IPC. Both the sentences were ordered to run concurrently. 2. The brief facts of this case as noticed by the trial court below are that on 31.10.2001 on receipt of copy of DD No.18A of P.S. Sangam Vihar, New Delhi with respect to Kumari ........ (name is withheld and for the sake of future reference hereinafter referred to as, 'victim'), daughter of Ramesh, having been got admitted by her father at AIIMS for her medical examination, S.I. Madan Pal alongwith Constable Shiv Kumar reached AIIMS and found the victim admitted there vide MLC No.99723/01. Her parents were also present in the hospital. Statement of the victim was recorded as Ex.PW-7/A. The victim appended her thumb impression at point 'A' which was duly attested by her father Ramesh. In her said statement, the victim leveled allegations against the appellant Rafiq for an offence punishable under Sections 376 and 506 Indian Penal Code and on the basis thereof the SI prepared 'rukka' Ex.PW-13/A for registration of a formal FIR against the appellant for the offence punishable under Sections 376/506 IPC and thereupon a formal FIR was registered. On 01.11.2001 'Kacchi' and 'nikker', stained with blood that had come out from vagina of the victim were handed over by her father to the SI. On the same day, on information by a secret informer, appellant Mohd. Rafiq was apprehended, his personal Crl.A.No.No.390-2004 Page 3 of 28 search was carried out and he was arrested. The appellant is also stated to have made a disclosure statement and pointed out the place of occurrence. He was also got medically examined. The exhibits handed over by the doctor were taken into possession and deposited in the Malkhana. In the opinion of the doctor the appellant was fit to have sexual intercourse. The victim was referred to the Gynae Department where she remained admitted from 31.10.2001 to 2.11.2001. 3. The prosecution has examined 13 witnesses, however, only two witnesses were examined by the defence. The statement of the appellant under section 313 Cr.P.C. was recorded, wherein he denied the circumstances existing against him. 4. Before dealing with the rival contentions of the parties, it would be appropriate to minutely scrutinize and analyse the evidence of some of the material witnesses. 5. PW-2 (Constable Shiv Kumar) in his examination-in-chief has deposed that the statement of the victim was recorded by the Investigating Officer, however, it was not recorded in his presence. He also deposed that the victim did not inform the Investigating Officer that appellant (Rafiq) committed rape upon her. 6. PW-3 (Constable Wasik Ahmed) in his examination-in-chief has deposed that on 1.11.2001, he was posted at P.S. Defence Colony and was working as the Duty Officer at AIIMS, on which date the appellant was medically examined in the hospital Crl.A.No.No.390-2004 Page 4 of 28 and after his medical examination the doctor preserved the under garments, blood in guage, which were sealed with the seal of AIIMS and the same were seized by Investigating Officer vide seizure memo Ex.3/A, which bears his signatures at point 'A'. In his cross-examination, PW-3 has deposed that on 1.11.2001 he was on duty from 8:00 a.m. to 8:00 p.m. and on receiving the exhibits in sealed condition, he sealed the same with the seal of CMO AIIMS Hospital and handed over the same to Investigating Officer, as it was in intact condition. 7. PW-4 (Dr.Sunil Kumar Sharma, Senior Resident AIIMS hospital) in his examination-in-chief has deposed that on 1.11.2001 he had medically examined the appellant, who was brought to the hospital with alleged history of being involved in a rape case, one day back (12 noon on 31.10.2001). He also deposed that appellant was conscious, cooperative, well-oriented and there was no external injury over his body. And on the medical examination of the appellant, he was of the opinion that there was nothing to suggest that appellant could not perform sexual intercourse. He also deposed that blood in gauge and underwear of appellant were sealed and handed over to the Investigating Officer. He admitted the detailed MLC to that effect which was Ex.PW-4/A and which bears his signatures at point 'A'. 8. PW-5 (Dr.Suman, Senior Resident, AIIMS hospital) in her examination-in-chief has deposed that she had examined, victim on 31.10.2001, who was brought by her father with the alleged Crl.A.No.No.390-2004 Page 5 of 28 history of rape by a known person. PW-5 deposed that “she was giving history take out of under garments by that person and penetration of penis inside. After that she has blood around 100 m.l. and now she has no bleeding for one hour”. She further deposed that “on examination vitals stable, Pulse rate 96 per minute. Per abdomen soft, per vaginal examination local mild clot removed. Hymen torn freshly. Vaginal mucosal tear and muscle exposed. Skin 3 ml torin in midline perniem. Per rectal examination rectal mucosa intact. Tone normal”. She also deposed that she has seen the MLC, Ex. PW-5/A and admitted that the same is in her handwriting and bears her signatures at point 'A'. 9. PW-6 (Constable Ramtek, P.S. Sangam Vihar) in his examination- in-chief has deposed that on 1.11.2001 he was posted as constable at P.S. Sangam Vihar. On that day at about 4:00 p.m., a secret informer informed the Investigating Officer S.I. Madanpal that the appellant wanted in this case is sitting at DDA flats, Tara Apartment, Delhi. He along with the Investigating Officer and secret informer reached Tara Apartment Police Booth at about 4:30 p.m. At pointing out of secret informer, appellant, was apprehended. He was taken to Police Station and was interrogated by the Investigating Officer. PW-6 also deposed that the appellant made a disclosure statement (Ex.PW-6/A), which bears his signatures at point 'A'. The appellant pointed out his house where he committed the offence. The pointing out memo Crl.A.No.No.390-2004 Page 6 of 28 Ex.PW-6/B was prepared, which bears his signature at point 'A'. PW-6 (Ramtek) also deposed that appellant was taken back to the Police Station and thereafter he was got medically examined from AIIMS Hospital. The doctor who medically examined the appellant preserved the blood samples etc. and the same was sealed by the I.O. vide seizure memo, Ex.PW-3/A. PW-6 (Ramtek) also deposed that the prosecutrix was also present in the hospital and she was also got medically examined and after her medical examination the undergarments, one handkerchief and one half pant was seized vide memo Ex.PW-6/C, which bears his signature at point 'A'. He further deposed that at the time of arrest of the appellant, arrest memo Ex.PW-6/D was prepared and the same bears his signature at point 'A'. The personal search of appellant was conducted vide memo Ex.PW-6/E. The discharge summary of prosecutrix was taken into police possession vide memo Ex.PW-6/F. PW-6 (Ramtek) has also deposed that Investigating Officer had also seized the proof regarding date of birth of the prosecutrix vide memo Ex.PW-1/E which bears his signature at point A. The said proof is Ex.PW-1/A. 10. PW-6 (Ramtek) in his cross-examination has stated that the secret informer came to the police station and informed the Investigating Officer that the appellant of this case was sitting outside the police booth on a bench, where the police officials were sitting inside the booth. PW-6 also stated that on seeing them, the appellant did not try to run away from the said place Crl.A.No.No.390-2004 Page 7 of 28 and the Investigating Officer had written the disclosure statement (Ex.PW-6/A) in his own hand-writing and the appellant made disclosure in his presence. PW-6, further deposed that “thereafter the appellant was taken to AIIMS for his medical examination. We came back to police station from AIIMS. The appellant was thereafter put in police lock-up at P.S. Ambedkar Nagar”. It is also stated that the statement of PW-6 was recorded by the Investigating Officer at the police station and after his routine duty, PW-6 went to his house. 11. With a view to ascertain and satisfy itself about the capability of the victim, learned trial court has put certain questions to the victim, which were answered by her and are reproduced below: “Q. What is your name? A. …., victim. Q. What is yours father name? A. Sh.Ramesh Q. Do you study? A. I study in 3rd class. Q. In which school do you read? A. I read in a private school. Again said a govt. school. Q. What is your age? A. I am 7 years old. Q. Whether it is good to tell truth or a lie? A. Truth is always good. Q. How many brother and sisters are you? A. We are 3 sisters and 1 brother. Q. Do you know what is meaning of taking an oath? Crl.A.No.No.390-2004 Page 8 of 28 A. This means telling truth.” 12. The trial court on examination of the victim observed that the victim appeared to be intelligent, capable and was able to give rational answers. 13. PW-7 (Baby victim) deposed that she knew Mohd. Rafiq. The appellant used to reside near her house. PW-7 stated that she did not remember the exact date, however, one day in the afternoon time, she went to the house of appellant for watching T.V. on her own. At that time there was no T.V. installed at her house. When she was watching T.V. at the house of the appellant, appellant removed her underwear and also removed his underwear. He inserted his penis into her vagina. She has testified in her own language that „Rafiq ne meri kacchi utar di apni kachi bhi uttar di and apna peshab karne wala mere peshab karne wali jaga gusha dia‟. She has also deposed that when she cried, the appellant pressed her mouth and that she felt a great pain in her private part and started bleeding profusely and that thereafter on her cries the appellant left her and extended threat not to disclose the episode to anyone and that thereafter she came to her house and told her mother about the occurrence when her father was away on his duty. She has also deposed that her father returned in the evening and she was taken to hospital by her grandmother. She has deposed that police had recorded her statement and she put her right thumb impression at point 'A' on the said statement Crl.A.No.No.390-2004 Page 9 of 28 which is Ex.PW-7/A and admits the same. She also deposed that she was admitted in hospital and remained there for 6/7 days. 14. During her cross-examination, she deposed that she does not know appellant present in the Court and that she has seen him for the first time in the Court. She deposed that the appellant committed rape upon her while she was watching T.V. at her house. At this stage, it was noticed by the learned trial court that the victim started weeping and deposed that the appellant had inserted his penis into her vagina. 15. PW-8 (Pushpa) (mother of the victim) in her examination-in-chief, has deposed that her daughter was 7 years old. PW-8 stated that she did not remember the exact date but near Diwali days last year at about 11:00 a.m., when she was present at her house and her husband had gone for his job, her daughter, victim, went to the house of the appellant to watch TV. At about 11.30 a.m the Bhabhi of the appellant brought the victim to her house in an unconscious condition and was bleeding from her private parts. PW-8 has deposed that the appellant came out of his house and told her that the victim had received injuries on her private parts, however, at that time she did not suspect the appellant having raped her daughter, victim. After two hours, her daughter, victim, regained consciousness and she took her to the hospital, i.e. Mamta Hospital and where the doctor asked her daughter about the occurrence and thereupon the victim started weeping and on insistence of the doctor she informed that appellant Mohd. Rafiq Crl.A.No.No.390-2004 Page 10 of 28 had put off her underwear and had raped her. Thereupon this PW-8, Pushpa, called the mother of the appellant and told her the whole episode and that mother of the appellant requested her not to initiate any legal actions through police and that she would compensate her but she did not accept the same and reported the matter to the police. She also telephoned her husband and who thus came home. PW-8 further deposed that the victim was taken to the hospital by her sister-in-law, Kela Devi, and her husband, and that the victim told her (PW-8) about the episode in the presence of the doctor. 16. In her cross examination, this witness has stated that the date of the incident was 31.11.2001 and that her daughter, victim was playing in front of her house and after some time victim came back home weeping and there was bleeding from her vagina. This witness also deposed that it was wrong to suggest that the victim narrated to her that while she was playing, appellant, Rafiq called her in his room and offered her to watch T.V., and that no one was present at the house of Rafiq, or that appellant, Rafiq closed the door of his house or that put off the underwear of victim, laid her on bed and Rafiq penetrated his penis into the vagina of victim and when she cried, appellant pressed her mouth and threatened victim that she should not tell to anyone. 17. This witness in her cross-examination also deposed that she had no information that the appellant had taken her daughter at his house for watching T.V. and that it was sister-in-law (bhabhi) of Crl.A.No.No.390-2004 Page 11 of 28 the appellant, who brought her daughter, victim in her lap saying that she was bleeding. PW-8 further deposed that she immediately took her daughter to Safdarjung hospital and that till examination of victim by the doctor, her daughter, victim, did not disclose to her anything as she was too afraid and that the victim was admitted in the hospital and discharged after three days. She also stated that after one or two hours in Safdarjung hospital, victim narrated the incident. She also stated that her husband reached at the hospital from office at about 5/ 5:30 p.m. and she disclosed to him about the incident as at that point of time the victim was taken inside the room by the doctor. This witness stated that her daughter, victim, told that Rafiq did the act with her and that the victim knew Rafiq as they were residing in neighbourhood. PW-8 stated that the police recorded the statement of her husband in the hospital whereas her statement was recorded in the Court premises, and that the underwear of child, victim, was taken by the police next morning and at that time nothing was done in her presence by the police official, and that statement of the victim was recorded by police at about 3 / 4 p.m. in the hospital. 18. PW-12 (Ramesh Kumar) (father of the victim), in his examination- in-chief has stated that he used to reside in House No.A-2, J.J. Camp Tigri, New Delhi and that during the period of the incident he was working as a painter with one contractor, Devi Lal. He deposed that he used to leave his house for work at about 8:30 Crl.A.No.No.390-2004 Page 12 of 28 a.m. and used to return at 6/ 6:30 p.m., however, the time to return was not fixed and he tried to come back the moment work was finished. He also stated that exact date he does not know but around 31st October, 2001 at about 6.00 p.m., he was telephonically informed by his contractor, Devi Lal, that the daughter of PW-12 was not well. The contractor had in turn received a call on his mobile from the wife of PW-12 and he along with his contractor reached the home, and on reaching home they saw that the victim was lying in a semi-conscious stage. PW-12 deposed that his daughter, victim, started weeping when he pulled her and she told him that she had gone to the appellant, Rafiq's house for watching T.V., and where the appellant put off her underwear and committed rape upon her. This witness also stated that the victim, daughter, was bleeding from her private parts and her clothes were soaked with blood, and that he along with his bhabhi, Smt.Kela Devi took the victim to the hospital, got her admitted there and where she remained in the hospital for about three days. PW-12 stated that the victim was seven years of age at the time of the incident and used to study, and that he had handed over the blood stained clothes of the victim to the Investigating Officer, and that the police seized the clothes of the victim vide seizure memo Ex.PW-6/C, which bears his thumb impression at point (b). On this witness's assurance that he can identify the clothes of the victim, parcel no.4 was produced from Malkhana and the same was ordered to Crl.A.No.No.390-2004 Page 13 of 28 be opened and on opening it was found to contain one underwear, one nicker and a piece of cloth, all soaked with blood. This witness identified the clothes of his daughter, which were seized by the police vide seizure memo Ex.PW-6/C. 19. During the cross-examination this witness, PW-12, has stated that his sister-in-law, Kela Devi took the victim to the hospital. He stated that when he came to the house along with the contractor at about 6:30 /7 p.m., he came to know about the incident through the victim at his house, and that the victim was taken to the hospital in the same clothes in which she was lying. It is deposed by PW-12 that he took some clothes including underwear of the victim to the hospital, and that his statement was recorded by the Investigating Officer at about 8:30 p.m. in the said hospital. Thereafter the police left, and they did not record any other statement; and that the statement of his wife was recorded at home. It is also deposed that he handed undergarments and other clothes of the victim to the police, but does not remember whether he gave the clothes on the same day or after discharge of the victim. He has also stated that no case is pending against him under Section 376, IPC, in Tis Hazari Courts and stated that appellant committed rape upon his child. 20. PW-13 (Madan Pal) in his examination-in-chief has deposed that on 31.10.2001 he was posted at P.S. Sangam Vihar and on receipt of DD No.17A, he went to the AIIMS Hospital and while he was standing at the gate he received DD No.18A through Crl.A.No.No.390-2004 Page 14 of 28 constable Shiv Kumar and on receipt of DD No.18A (Ex.PW-10/B), he went to the casualty department of the AIIMS hospital where the victim daughter of Ramesh was found admitted and after seeking permission (which is Ex.PW-13/C) from the doctor, he recorded her statement (Ex.PW-7/A) which bears the thumb impression of the victim at point 'A' and he also obtained thumb impression of her father at point 'B'. Thereafter he made an endorsement on the statement of the victim which is Ex.PW-13/A and sent the same to Police Station for registration of the FIR through constable Shiv Kumar. He deposed that thereafter he went to the spot i.e. A-2, J.J. Camp, Tigri and prepared the site plan (Ex.PW-13/B) at the instance of Pushpa, mother of the victim, with correct marginal notes. He deposed that he also received copy of the FIR, Ex.PW-10/A along with „Asal tehrir‟. 21. PW-13 has further deposed that on 1.11.2001 he arrested appellant, Mohd. Rafiq, from Tara Apartments, C.R. Park at the instance of the secret informer and his arrest memo Ex.PW-6/D was prepared; the personal search of appellant was conducted vide Ex.PW-6/E; and that the clothes of the victim, prosecutrix, were seized vide seizure memo Ex.PW-6/C which were produced by Ramesh Kumar, the father of the victim and the same were sealed in a cloth parcel with the seal of M.P. The appellant was got medically examined and the duty constable produced before him the EX preserved by doctor who medically examined the appellant and the EX were seized vide seizure memo EX.PW-3/A. Crl.A.No.No.390-2004 Page 15 of 28 He further deposed that he moved an application (Ex.PW-13/D) for medical examination of the appellant. The disclosure statement was made by the appellant (Ex.PW-6/A) and who also pointed out the place of the incident and a memo was prepared (Ex.PW-6/B). He further deposed that he collected the MLC of the victim (Ex.PW-5/A) and the MLC of the appellant (Ex.PW-4/A); and that he also seized the age proof, school certificate (Ex.PW-1/A) of the victim, vide seizure memo Ex.PW-1/B, on 24.12.2001. It is also deposed that EX were sent to FSL, Malviya Nagar and its report was obtained which is Ex.PW-13/F and 13/G. He further deposed that he investigated the case and recorded the statement of witnesses under Section 161 Cr.P.C. collectively, and on completion of the investigation, challan was prepared and the same was filed in the Court. He also deposed that the clothes of the prosecutrix were brought from Malkhana and the same were shown to the witness and the witness collectively identified the clothes as Ex.PW-12/1. 22. It is contended by learned counsel for the appellant that the appellant has been falsely implicated in this case, he is completely innocent and is not even remotely connected with the commission of the alleged offence. Learned counsel further submits that the 'rukka' was ante-dated in view of the fact that the incident took place at 11:30 in the morning on 31.10.2001 whereas the time mentioned in the 'rukka' is 9:00 a.m. In my opinion there is no force in the submission of learned counsel for Crl.A.No.No.390-2004 Page 16 of 28 the appellant, in view of the fact that the mentioning of the time is a typographical error which is evident from the fact that just three lines below therein, it is mentioned case FIR No.630/01, dated 31.10.2001, under sections 376/506 IPC DD No.23-A dated 31.1.2001 at 9:45 p.m. 23. It is next contended that the victim was approximately seven years of age and her testimony is completely unreliable and no reliance can be placed on her testimony. 24. Before dealing with the submissions of learned counsel for the appellant, it would be useful to refer to a decision of the Apex