Mahesh Chander vs State (Nct Of Delhi)
2009 Latest Caselaw 691 Del

            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

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.

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.

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.

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

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

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

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

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,

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

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

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

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.

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

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 the injuries were received or who caused the

injuries.

18. PW-11, Dr. Krishna Tiwari, Gynecologist Aruna Asif Hospital

(Civil Hospital), deposed that on 03.08.1990 at 3:30 pm a case

was referred to her by GDMO, Dr. Rajesh Gupta, for gynae

check up of patient, prosecutrix d/o Molhar Singh with alleged

history of rape. PW-11 deposed that on examination she had

found that there was "no fresh injury in vagina. P.V.

examination - Vagina vulva normal, Hymen torn in multiple

places, old torn edges. Vagina loose admits two fingers. Uterus

antivertal, normal size, mobile, fornix free. No fresh bleeding."

The report of the doctor is Ex.PW-11/A.

19. PW-15, Ishtkhar, s/o Abdul Hamid, r/o H.No. 223, Mohalla

Rukansaraf, Buland Shahar deposed that he knew all the three

appellants namely, Mahesh Chander, Anis and Anil Kumar and

that he used to work as a helper with them on bus No. UHN

2484, which used to travel between Saharanpur and Delhi.

PW-15 deposed that the appellant, Mahesh Chander, was driver

of the said bus while appellant Anis and Anil were conductors on

that bus. On 2.8.1990 that bus started from Saharanpur

between 3 and 3:30 p.m., for Delhi. The said Bus reached at

ISBT, Delhi at about 7:30 p.m. One girl, namely, prosecutrix

was travelling in that Bus from Saharanpur to Delhi. All the

passengers got down from the bus at ISBT and the prosecutrix

stated that she had to go to New Delhi. Appellant, Anis asked

appellant, Anil Kumar to take the prosecutrix to New Delhi and

then the prosecutrix left ISBT with appellant, Anil Kumar.

Thereafter, the bus was taken to the petrol pump at Gokul Puri,

and driver, Mahesh Chander; conductor Anis and himself (PW-

15) were in the bus. In the meantime Anil Kumar along with the

prosecutrix also came there. PW-15 further deposed that all the

three appellants took liquor in the bus and thereafter they

committed rape upon the prosecutrix. They also asked him to

commit the rape, which he refused. Thereafter the bus was

brought to Majnu-ka-Teela and the prosecutrix was still in the

said bus. PW-15 deposed that he slept on the roof of the bus

and others slept in the bus. When he got up in the morning, the

prosecutrix was not present there and all the three appellants

were still there. Thereafter he had gone to refresh himself and

when he returned, he came to know that the bus had been

taken away by the police.

20. In his cross-examination by learned counsel for the appellant

Mahesh, PW-15 deposed that at the time of occurrence he

remained outside the bus. He remained in the bus for about

10-15 minutes after the prosecutrix and the appellants had

taken meals. He deposed that he did not go inside the bus.

And further that although many buses were parked at „Majnu-

ka-Teela‟, he did not make a complaint to any staff member of

those buses regarding this incident. PW-15 further deposed that

the bus reached at ISBT, Delhi in the morning at about 7:30

a.m. And that it was correct to suggest that the police remains

present at ISBT and that he did not make a complaint to any

police official at ISBT.

21. The arguments of the counsel for the appellants can be

summarized as under: (1) the testimony of the prosecutrix is

not reliable and untrustworthy; (2) there are material

contradictions in the statement of the prosecutrix made under

Section 164 of the Cr.P.C. before the Magistrate and the

testimony recorded in the Court; (3) the prosecutrix being a

smart and confident lady could not have been trapped by the

appellant; (4) there is no corroboration to the testimony of the

prosecutrix, and thus, her evidence cannot be relied upon; (5)

there are material contradictions in the evidence of prosecutrix,

PW-1, and Ishtkhar, PW-15; and (6) the medical evidence does

not support the case of the prosecution as no semen was found

in the vagina of the prosecutrix.

22. The arguments of learned counsel for the State can be

summarized as: (1) the prosecution has been able to prove its

case beyond any shadow of doubt; (2) the contradictions sought

to be highlighted by the learned counsel for the appellant are

neither material nor do they go to the root of the matter; (3) the

evidence of the prosecutrix is ably supported by the evidence of

PW-15, who is none else but a helper of the same bus; (4) the

evidence of the prosecutrix is reliable and trustworthy; and (5)

medical evidence is not a mandatory evidence in the facts of

the present case.

23. In so far as the first submission of learned counsel for the

appellants is concerned, I find no force therein. The incident of

rape, in the present case, pertains to 2.8.1990. At the first

opportunity available the prosecutrix ran away from the

appellants and on seeing a police post, she went therein and

narrated the entire incident to the police officers. She then

accompanied the police officials and searched for the bus.

Thereafter she came to ISBT, where she narrated the entire

incident to another police officer, who took her to the Police

Station, Civil Lines and where her report was recorded. The

prosecutrix was then brought to Police Station, Gokul Puri. The

prosecutrix pointed out the place where the bus had been

parked in the night and that she had been raped on the floor of

the said bus. After having analyzed the statements made by the

prosecutrix at various stages of the investigation and the trial,

in my opinion, there are no material contradictions. What has

been argued before this Court is that on 20.05.1999, during the

cross-examination, the prosecutrix had stated that none had

committed any forcible illegal act or rape on her, none of the

appellants were arrested by the police in her presence and she

had earlier deposed in the court at the instance of the police.

She had also stated that none had committed any wrong thing

with her and she did not want to proceed with the case any

further. On the subsequent date, she however stated that the

appellants had raped her against her will. Learned counsel for

the appellants has submitted that in view of the fact that the

prosecutrix had resiled from her statement, it goes to show that

this witness is unreliable and the statement of such a witness

cannot be the basis of conviction. At this stage, it may be

noticed that regarding the statement recorded in the Court, on

27.08.1991, the prosecutrix had clarified that she had been

threatened by the appellants that if she testifies against them,

then she would have to face dire consequences. And it was

under these circumstances that she had made a complete

somersault and retracted from her earlier statement. The

prosecutrix, further stated that whatever she had stated on

27.08.1991 regarding she having been raped by the appellants,

was true. Barring the statement made on 20.05.1999, the

prosecutrix has consistently deposed against the appellants,

whether it be her statement before the police officials, the

statement recorded before the Magistrate under section 164,

CrPC, or her testimonies recorded before the trial court. There is

ample justification for the fact that in the cross-examination on

20.05.1999, the prosecutrix had not supported the case of the

prosecution as she was under the fear and threat extended by

the appellants. And on the next date, the prosecutrix boldly

and courageously narrated the entire sequence of events

before the Court. Thus, I find no contradictions in the version of

the prosecutrix and in fact hold that the testimony of the

prosecutrix is reliable and trustworthy.

24. The testimony of the prosecutrix finds support from none else

but the evidence of PW-15, who was a cleaner of the said bus

and an independent witness. There is nothing on record to

show as to why he would support the case of the prosecution

and against his very own associates. His testimony was

completely unshaken during the cross-examination. I also do

not find any material contradictions between what PW-15 has

stated before the Court and the testimony of the prosecutrix.

There is no contradiction which goes to the root of the matter.

25. Learned counsel for the appellant has strongly urged before this

Court that the evidence of prosecution is belied by the medical

evidence and thus the appellant is entitled to acquittal. In

support of this proposition he has relied upon a decision of the

Supreme Court in the case of Sadashiv Ramrao Hadbe

(supra). The paragraphs relied upon by learned counsel for the

appellant have been reproduced above. No doubt the Apex

Court in the case of Sadashiv Ramrao Hadbe (supra) has

held that the High Court had failed to take into consideration

the fact that as per the medical examination, there was no

trace of semen in the vagina of the prosecutrix and thus it casts

a serious doubt on the version of the prosecution. However, it

would be useful to look into the facts of the case of Sadashiv

Ramrao Hadbe (supra). While learned counsel has referred

to paras 7 and 13 of the judgment, I deem it appropriate that

for a complete understanding and interpretation of the

judgment, the following paras 9 and 10 are also to be taken into

consideration:

"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.

10. In the present case there were so many persons in the clinic and it is highly improbable that the appellant would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able-bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbabilise the prosecution version."

26. The observations of the Apex Court are to be read in the light of

facts of the case of Sadashiv Ramrao Hadbe (supra). The

surrounding circumstances of the case were such that the sole

testimony of the prosecutrix could not be relied upon. It was

also observed that since many persons were present in the

clinic, it was highly improbable that the appellant would have

made a sexual assault on the patient, who had come to him for

her examination. The Court was of the opinion that it was highly

improbable that the prosecutrix could not have made any noise

or get out of the room without being assaulted by the doctor.

Besides that there were no injuries on her body and thus her

version could not be relied upon.

27. Before going further, it would be expedient to refer to a

decision in the case of Madho Ram and Anr. Vs. The State

of UP reported at AIR 1973 SC 469, wherein the Apex Court

observed that:

"The only rule of law is the rule of prudence, namely, the advisability of corroboration should be present in the mind of the judge or the jury, as the case may be. There is no rule of practice that there must, in every case, be corroboration before the conviction can be allowed to stand."

It would also be useful to reproduce the observations of the

Supreme Court regarding a rape victim, in the case of State of

Punjab v. Gurmit Singh reported at (1996) 2 SCC 384. The

Apex Court held:

"8. .........The courts must, while evaluating evidence, remain alive to the fact that in a case of

rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable........"

"21. ......It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim‟s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities

of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

"22. ......The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross- examination, the court must also ensure that cross- examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as "discrepancies and contradictions" in her evidence."

28. Learned counsel for the appellant has submitted that the

absence of spermatozoa in the vaginal swab of the prosecutrix,

is a serious anomaly and casts a suspicion upon the

prosecution‟s evidence. If the arguments of learned counsel for

the appellant are accepted, then what would emerge is that the

surrounding circumstances coupled with the medical

examination would go on to show that no rape was committed

on the prosecutrix. In my considered opinion, it would be apt

herein to place reliance upon the case of B.C. Deva v. State

of Karnataka, reported at (2007) 12 SCC 122, wherein the

Apex Court observed:

"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."

29. In the case of B.C. Deva (supra), inspite of the fact that no

injuries were found on the person of the prosecutrix, yet finding

her version to be reliable and trustworthy, the Apex Court

upheld the conviction of the accused. Thus to lay down a

general proposition that where medical evidence does not

support the version of the prosecutrix, a finding of acquittal is

bound to be given, would be an incomplete interpretation of the

law which has been laid down. Now, looking into the facts of

this case, it is observed that not only has the prosecutrix

convincingly nailed the appellants, but also the report of

the FSL shows that there was semen found on the

underwear of all the three appellants. PW-7, Dr. Rajesh

Gupta, Civil Hospital, has also deposed that there were

abrasions on the breast and thigh of the prosecutrix. This

fact lends credence to the version of the prosecutrix that

she was raped against her will, by the three appellants

one by one. The version of the prosecutrix is corroborated by

the medical evidence. The presence or absence of

spermatozoa in the vaginal swab of a rape victim is only one

part of the medical evidence and this alone cannot discredit the

other parts of the medical evidence and lead to an inference

that no rape was committed.

30. In view of the fact that the evidence of the prosecutrix is

trustworthy and reliable, the same having been duly

corroborated by the evidence of PW-15, cleaner of the bus,

who is an independent witness, and also taking into

consideration the report of the FSL as well as the evidence

of the doctor, which shows that semen was found on the

underwear of the appellants and that there were injuries

on the breast of the prosecutrix, I find no infirmity in the

judgment dated 07.12.2000 and order on sentence dated

18.12.2000, passed by the Additional Sessions Judge, Delhi,

in sessions case no. 27/96, FIR No.172/90, Sections 342/376/34,

IPC.

31. The appeals are accordingly, dismissed. The appellants if on

bail, be taken into custody immediately, so as to serve the

remaining portions of their sentence.

G.S. SISTANI ( JUDGE ) March 2nd , 2009 'ssn'