Crl. A. No. 419/2001 Page 1 of 37 IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. A. NO. 419/2001 Date of pronouncement 01 July, 2009 # MARUTI .... Appellant Through : Mr.Aman Ahluwalia, Advocate. Versus STATE (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. The present appeal is directed against the judgment dated 19.09.2000 and order on sentence dated 23.09.2000, passed by the learned Additional Sessions Judge, Delhi, in FIR No. 134/99, PS Kalyan Puri, under section 376, Indian Penal Code, 1860 (hereinafter referred to as, ―IPC‖), by virtue of which the appellant was sentenced to undergo Rigorous Imprisonment for five years with a fine of Rs.5,000/- and in default of which, the said appellant was directed to undergo a further Simple Imprisonment for a period of one year. 2. The facts of the case as noticed by the learned Trial Court, briefly stated are. 3. On 27.05.1999, Smt. Bedo wife of Shri Satpal made a statement before the police that at about 11 AM on 27.05.1999 she went to look for her mentally retarded girl, Crl. A. No. 419/2001 Page 2 of 37 (name withheld, hereinafter referred to as, ―the victim‖) at her jhuggi in 18 block, Kalyanpuri Delhi but she did not find her there. She went to the jhuggi of her neighbour, Sh. Maruti (appellant herein) and saw that Salwar of her daughter victim was put off and she was lying on the cot (palang) of Maruti, who was lying naked on her and was doing the wrong act. After seeing her, Maruti stood up and immediately covered himself with the help of a towel. SI Puran Chand recorded the statement of Smt. Bedo and made his endorsement thereon. After completion of investigation, the police filed the challan before the concerned Magistrate for trial of the appellant for the offence under section 376, IPC. Post trial, the appellant was found guilty of the said offence. 4. The prosecution in support of its case examined eleven (11) witnesses. Five witnesses were examined by the defence. Statement of the appellant was also recorded under section 313 of Cr.P.C. It would be useful to discuss the evidence of some of the material witnesses in detail. 5. PW-1, Smt. Bedo, w/o Sh. Satpal, deposed in her examination- in-chief that she is illiterate so she does not remember the date and month of the incident but it was about five–six months ago in this year. At about 10:30 AM she went to see her daughter to provide her food as her daughter was mentally upset. She had called her daughter in her neighbourhood but she was not there. The jhuggi of the appellant is situated after one jhuggi of her jhuggi. The jhuggi which was situated in front of the other jhuggi was curtained. She entered in the said Crl. A. No. 419/2001 Page 3 of 37 jhuggi after pushing the curtain but her daughter was not there. Thereafter she had pushed another curtain and she saw her daughter (victim) was lying on a palang in the said jhuggi and her legs were down from the palang and her salwar had also been put off upto knees and Maruti (appellant) was not having baniyan and kacha on his person and he was over her daughter. After seeing her, he immediately separated from her daughter and put a towel around him. She immediately called three–five persons from the neighbourhood and told them that appellant, Maruti was lying naked on her daughter. Thereafter, she went to the police station to lodge a report. From the police station two police constables accompanied her and they all came to the jhuggi of Maruti and the appellant was taken by them to the police station and her daughter was also taken by the police. Thereafter police recorded her statement in the police station, the same is Ex.PW1/A which bears her signature at point A. Police took her daughter for the medical examination and she remained sitting inside the police station till her daughter came back from the hospital. Thereafter she along with her daughter came back to her jhuggi. Her daughter‘s age was about 23 or 24 years. 6. In her cross-examination by learned APP for the State, PW-1 deposed that it was correct that when she saw Maruti he was laid down naked on her daughter and committing wrong act with her daughter. (witness stated the wrong acts means which is done by husband and wife). Crl. A. No. 419/2001 Page 4 of 37 7. In her cross-examination by learned counsel for the appellant, PW-1 deposed that before putting her thumb impression on her statement, the police read over and explained the statement to her. PW-1 deposed that it was correct to say that she had stated in her statement that the door was open but there was curtain on the door. She was confronted with the statement Ex. PW 1/A where it was not so recorded. As per PW-1, in the jhuggi of Maruti, the appellant was residing with his wife, son, daughter-in-law, and two children. She voluntarily stated that at the time of the incident none was present in the jhuggi. The wife of Maruti used to work in different kothis and the wife of his son remained in the jhuggi but at the time of the incident, the wife of his son had already gone to her parental house. In front of the jhuggi of Maruti there was a jhuggi of a Madrasi, but she deposed that she did not know his name. On the left side was the jhuggi of Babu Rao, and on the right side was that of Nanu. PW-1 deposed that she went to the police station at about 10:30 a.m. and returned back to the spot alongwith the police staff after about 50 minutes. PW-1 further deposed, “I do not know the names of persons who remained in the jhuggi of the appellant when I left the jhuggi for the p.s. When I called the neighbourers some neighbourers came over there and I handed over the accused in the custody of Gulshan and there was one lady Sumitra present there. But I do not know the others name. I have been residing there for last about 15 years.” PW-1 deposed that it was incorrect to suggest that she was Crl. A. No. 419/2001 Page 5 of 37 deposing falsely or that she did not see anything with her own eyes or that she did not enter in the jhuggi of Maruti, appellant. She, however, admitted that her daughter had been a victim in another case of the same nature. 8. PW-2, victim, d/o Satpal. The trial court observed that this witness was suffering from mental retardation and a certificate to this effect was attached in the file. Therefore the trial court put some questions to the victim to reveal her competency. “Q. Why did you come in the court today? A. I came to court alongwith my mother to depose against Uncle and witness pointed towards the appellant.” Thereafter the trial court observed, “In the above reply of the witness the court is satisfy as the witness is competent to make her statement in the court therefore her statement is recorded.” PW-2 deposed, “accused/uncle [ ] had committed Galat kaam with me. He has committed Galat Kaam for long back. My statement was recorded in the court prior to this statement.” In the cross-examination by learned counsel for the appellant, PW-2 deposed, “[m]y father did not tell me to tell in the court about the Galat Kaam. I have deposed my self about this today in the court. My mother did not tell me to say about Galat kaam Voll. Said Papa. My marriage was solemnized but I was deserted by my husband as my husband had got another Crl. A. No. 419/2001 Page 6 of 37 marriage. „Mere Pati ne Dusri Shadi Kar Lee‟. Police interrogated me.” 9. PW-3, Gulshan, r/o jhuggi no. 77, Kalyan Puri, Delhi deposed that on 27.05.1999, he was present at his shop and on that day at about 11 AM, Bedo came to him to accompany her to the jhuggi of Maruti, appellant. There Bedo asked him to detain the appellant as she was going to call the police. Police reached over there and he handed the Maruti, appellant to the police. Police conducted the personal search of Maruti, appellant vide memo Ex.PW3/A which bears his signature at point A. 10. In his cross-examination by learned counsel for the appellant, PW-3 deposed that the Police reached at the spot at about 11 or 11:30 AM. When he reached the jhuggi of Maruti, daughter of Smt. Bedo was already present there alongwith Maruti. As per PW-3, his shop is situated at a distance of 4-5 jhuggis from the jhuggi of Maruti. He stated to be familiar with Bedo and of having visiting terms. Apart from him, 3-4 persons had also reached the jhuggi of Maruti namely Chotu, Savitri and other persons whose name he did not remember. PW-3 deposed that he has been residing there since last about 12 years. There are the jhuggis of Chotu, Babu, Gopal between his jhuggi and the jhuggi of Maruti. PW-3 denied THE suggestion that he was deposing falsely. 11. PW-5, Dr. Kalpana Kumar, SDN Hospital, deposed in her examination-in-chief that on 27.05.1999 at 3:50 PM, patient, victim d/o Satpal, aged 25 years (approximately) was brought Crl. A. No. 419/2001 Page 7 of 37 by lady constable Arti, P.S. Kalyanpuri and was referred to her for gynae checkup and opinion. As per PW-5, she examined the patient with the alleged history of rape by someone and opined, “On local examination there was no fresh injury seen on vulva or breast. Hymen seems ruptured, old tears present, vagina admits two fingers. Uterus anteverted, normal size mobile fornis clear. Patient was not telling menstrual history properly. Vaginal swab taken.…… Salwar was also sealed. She was referred to IHBAS for mental status.‖ PW-5 further deposed that the MLC No. 3502/99 dated 27.05.1999 is Ex.PW5/A which is in her handwriting and bears her signatures at point A. 12. PW-6, SI Puran Chand stated that on 27.05.1999, he was posted at P.S. Kalyan Puri. On 27.5.1999 Smt. Bedo came in the police station with her daughter-victim and made a statement before him, which is Ex.PW1/A. After hearing the statement he sent the victim for medical examination. In the meantime PW Gulshan Kumar came to him alongwith the appellant who made a statement before him that the appellant Maruti had committed rape with the victim. Thereafter he sent the appellant for his medical examination alongwith constable Khem Chand to SDN Hospital. Thereafter he went to the place of occurrence at jhuggi no. 55, Block no. 18, Kalyanpuri where the offence of rape was committed and he prepared the site plan Ex.PW6/B with the correct marginal notes at the pointing out of complainant Bedo. Appellant Maruti was also interrogated and he made a disclosure statement Ex.PW6/C. Crl. A. No. 419/2001 Page 8 of 37 13. PW-6, in his cross-examination by learned counsel for the appellant submitted that the complainant herself came to the police station for lodging a report. At that time prosecutrix (victim) was with the complainant. 14. PW-7, Sh. S.K. Sharma, M.M. deposed that on 28.05.1999, he was marked an application of I.O. Puran Singh for recording the statement of the prosecutrix under section 164 Cr.P.C. On the same day, prosecutrix (victim) was produced before him. She was suffering from a mental disorder. However he questioned her and observed that she was not in a fit state of mind nor was she capable of giving rational answers to the questions put to her. His observation is Ex.PW7/B. The questions and answers made by the prosecutrix are Ex.PW7/C. PW-7 also stated to have given a requisite certificate, which is Ex. PW7/D and bears his signatures at point A. 15. PW-8, Constable Khem Chand deposed that on 27.05.1999 he was posted in P.S. Kalyanpuri. As per PW-8, he alongwith the I.O. of the case and the appellant went to the place of occurrence where the appellant pointed out the place of occurrence as well as made a disclosure statement that he had committed rape on a mental girl. The disclosure statement is Ex.PW6/C which bears his signatures at point A. 16. PW-10, Dr. A.K. Saini, SDN Hospital deposed that on 27.05.1999, Maruti, appellant was brought to him by constable Khem Chand and that he had medically examined him. It was stated by PW-10 that, “[t]here was no external injury on his person. On local examination his gentalia secondary sexual Crl. A. No. 419/2001 Page 9 of 37 characters were well developed. ….. As per my opinion there was nothing to suggest that the accused was not capable of performing sexual act. He was advised to give his semen but he had refused to give. His undergarments were sealed with the seal of hospital and handed over to constable Khem Chand.” PW-10 deposed that he prepared the MLC No. 3448/99 dated 27.05.19899, the same is Ex.PW10/A and bears his signature at point A. 17. DW-1, Smt. Manda w/o Babu Ram, aged 27 years, r/o B-18, Kalyan Puri, Delhi, deposed that she knew Maruti, appellant as he was her neighbour. DW-1 deposed that in the month of May, 1999, five to six days prior to the day of the incident, a quarrel took place between Maruti and Bedo on some money transaction. In the month of May, 1999, Maruti was sprinkling water on the freshly constructed floor in his jhuggi. At that time, Bedo came to Maruti and stated that she had lodged a report as the appellant had teased her daughter. Smt. Bedo was the Pradhan of jhuggi locality. At that time she had raised an alarm ‗MERI BETI KO CHHERA HAI‘, so she came outside, but there was no such thing. 18. In the cross-examination by learned APP, DW-1 deposed that she did not know the age of victim. It is correct that she was not having a fit state of mind. When the quarrel took place between Smt. Bedo and Maruti some locality people had gathered there. She was also there but she did not ask the cause of quarrel from Smt. Bedo or even from Maruti. Further it was correct that after quarrel, Smt. Bedo went to the Police Crl. A. No. 419/2001 Page 10 of 37 station and lodged a report. It was correct that in the quarrel, Smt. Bedo was saying that Maruti, appellant had committed galat kaam. It was correct that when police came at the spot, she and other people did not tell the police that quarrel took place on other matter not on the galat kaam. DW-1 further deposed that it was correct that when the quarrel took place she was inside her jhuggi and she came outside from the jhuggi after hearing the noise. Voluntarily stated that the quarrel took place on freshly constructed floor by the appellant in his jhuggi. 19. DW-2 Smt. Sumitra r/o jhuggi No. 55 Block No. 18, Kalyan Puri, deposed that she knew the appellant as he is her neighbour. On 27.05.1999, Maruti was sitting on the floor of his jhuggi. Some altercation was already going on from the last 9/10 days between Maruti and Smt. Bedo on some money transaction. Again said Maruti had constructed a floor in his jhuggi one day prior to 27.05.1999 and he was throwing water on that day. Smt. Bedo was demanding money from Maruti, thereafter the appellant was apprehended by the police and taken to police station. 20. In the cross-examination by APP for the State, DW-2 deposed that Maruti is not related to her. The difference between her jhuggi and that of Maruti is of three jhuggis. At that time she was sitting at the gate of her jhuggi and everything was visible from there. It was correct that when quarrel was taking place between Smt. Bedo and Maruti, she was inside her house and that after hearing the noise she came out of her jhuggi. It was Crl. A. No. 419/2001 Page 11 of 37 correct that the name of daughter of Bedo is ‗victim‘ and she is half mad. It was incorrect to suggest that Maruti had committed galat kaam with the daughter of Smt. Bedo. 21. DW-3 Kamal Rao r/o B-18, Indra Camp Kalyan Puri deposed in her examination-in-chief that on 27.05.1999, she was giving tuitions to the children. She heard some noise of quarrel. Then, she came out from Budh Vihar and saw that Smt. Bedo was quarrelling with Maruti and she was demanding money as the appellant had constructed a floor in his jhuggi. At that time Smt. Bedo extended threat that if he will not give the money she will call the police and thereafter Bedo went to P.S. Police came at the spot and she again came out and saw that Maruti was taken by the police. As per DW-3, Smt. Bedo is Pradhan of the area and she used to harass the locality people as such. 22. DW-3 was cross-examined by learned APP for the State and DW-3 deposed that it was correct that at the time of quarrel, daughter of Bedo was also present there. It is correct that at that time Maruti was alone in the house. Again said his mother-in-law was present in the jhuggi. She denied the suggestion that mother-in-law of Maruti is residing in a separate jhuggi. DW-3 stated to have not heard that Smt. Bedo was saying that appellant had committed rape on her daughter and she only heard the demand of money. 23. DW-4 Smt. Sushila, Kalyan Puri, Delhi deposed that on 27.05.1999, at about 11 AM she was sitting at the door of her jhuggi and at that time Maruti was washing the newly Crl. A. No. 419/2001 Page 12 of 37 constructed floor in his jhuggi. In the meantime Pardhan Bedo came in front of the door of Maruti. Mother-in-law of Maruti was also inside his jhuggi. The daughter of Bedo was also there. Smt. Bedo was talking with Maruti on some money transactions but Maruti refused to give money to Bedo. Then Bedo started speaking loudly. And Bedo went to the police station. Maruti was apprehended by the police and was taken to P.S. with them then. Maruti, appellant has been falsely implicated in this case. 24. In the cross-examination by APP for the State, DW-4 deposed that the name of mother-in-law of Maruti is Gangu and she resides in a village in Maharashtra and she had come to the house of Maruti eight days prior to the incident but she did not know whether she came alone or with someone. Maruti has five Jhuggis which are adjoining to each other. As per DW-4, it was correct that Maruti and his mother-in-law were not sitting in one jhuggi. She denied the suggestion that in the quarrel Smt. Bedo was saying that Maruti had committed rape on her daughter. I had stated to the police that Maruti had not done anything and at that time police had assured me that they will release Maruti. Further stated that it was incorrect to suggest that she did not see any occurrence as alleged by her. 25. DW-5 Vishwas, Indira Camp, Kalyan Puri deposed that he knows the appellant as he resides in his locality. DW-5 stated to have heard noise of a quarrel from the house of Maruti and that Pradhan Bedo was saying something about money which Maruti refused to give to her. As per DW-5, he did not know as Crl. A. No. 419/2001 Page 13 of 37 to why Smt. Bedo was demanding money from Maruti. At that time Pradhan Bedo also extended a threat to Maruti to falsely implicate him in some case. She also said that she used to take money from all and further stated that she will lodge a report against Maruti. 26. In the cross-examination by APP for the State, DW-5 deposed that it was correct that when he heard the noise then he was attracted towards it, but he was not aware as to what happened before that noise. When he reached the place of noise he saw Smt. Bedo and her daughter were already present there. DW-5 also denied the suggestion that he was deposing falsely. 27. It is contended by learned counsel for the appellant that the judgment is based on surmises and conjectures. There are several discrepancies in the case of the prosecution and further that the appellant has been falsely implicated. 28. Learned counsel for the appellant submitted that the story of the prosecution is unbelievable. It is not apparent why – on not finding her daughter in the neighbourhood, PW-1 would walk straight into the curtained jhuggi of the appellant, which was two jhuggis away. Secondly, the sequence of events as narrated by PW-1 are extremely implausible. According to PW- 1, on seeing the purported incident, she ―immediately called 3-5 person from the neighbourhood‖ and told them that the appellant was ―lying naked on her daughter‖. Thereafter, she went to the police station. There is no reference to the whereabouts of her daughter, victim (PW-2), at this stage. Crl. A. No. 419/2001 Page 14 of 37 Contrarily, PW-1 has stated that she ―tied the strings on her daughter in the presence of police. In the cross-examination, PW-1 admitted that it took her 50 minutes to go to the police station and return with the constables. Thus, if her version is to be believed, on seeing the appellant naked on top of her daughter, she left her daughter (with an untied salwar) in the same jhuggi with 4-6 other people (3-5 neighbours as well as the appellant), and proceeded to the police station. This, it is submitted is highly implausible. 29. It is also contended by counsel for the appellant that the evidence of the victim as well as her mother is unreliable besides the deposition of PW-1, even if accepted at face value, only alleges that when she walked into the jhuggi of the appellant, she saw him lying naked on top of the victim, doing ―Galat Kaam‖. ―Galat Kaam‖ was further explained as that which is done by a husband and a wife and this at best would show that the appellant had attempted to rape the alleged victim. Learned counsel submits that the evidence of PW-1, by itself, even if accepted, does not conclusively show that there was penetration in the present case, and a husband and wife are capable of indulging in many activities where one lies naked on the other. The sine qua non of the offence of rape is penetration and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. In support of his contention, learned counsel for the appellant relies upon Koppule Crl. A. No. 419/2001 Page 15 of 37 Venkatarao Vs. State of Andhra Pradesh, reported at 2004 Crl. Law Journal 1804. 30. It is further submitted by learned counsel for the appellant that although both PW-1 and PW-3 admit that there were 3-4 other neighbours present in the jhuggi, none of these have been examined as prosecution witnesses. Sumitra, whose presence has been admitted by both PW1 and PW3, was examined as DW-2, and her version supports the appellant. Further the deposition of PW-3 cannot be relied on in asmuch as, PW-3 suggests that he handed over the appellant to the police when PW-1 returned to the jhuggi with the police constable. However, PW-6 (SI Puran Chand) states that PW-3 brought the appellant to him in