Delhi High Court
Pankaj Chaudhary & Others vs State (Govt. Of Nct Of Delhi) on 5 May, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.A. 384/2000
Decision on : 5th May 2009
PANKAJ CHAUDHARY & ORS. ..... Appellants
Through:Mr.Dharmender Arya with Mr.Sunil
Bainsla and Mr.Sunil Kumar, Advocates.
versus
STATE(GOVT.OF NCT OF DELHI) ..... Respondent
Through:Mr.Pawan Bahl, APP with
SI Inderjeet, PS Hauz Khas.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
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 Digest? Yes
JUDGMENT
05.05.2009
S. MURALIDHAR, J.(open court)
Introduction
1. This case is an instance of how a false criminal case, instituted in
connivance with obliging police officials, can virtually ruin the lives of
innocent persons. The four appellants have been facing criminal
proceedings for the offence of gang rape for over twelve years. The orders
passed by this Court in appeal and the facts brought forth by some
conscientious senior officers of the police have helped unravel the whole
truth and bring an end to the misery of the appellants. The process has
however taken a tortuously long time of twelve years, a period precious
and unrecoverable for the appellants. This case also demonstrates the
value of the right of appeal and the need for self corrective processes
within the police and the judiciary. The „brooding sense of injustice‟
brought about a false accusation that has tormented the appellants for
nearly twelve years should finally be assuaged.
2. This appeal is directed against a judgment dated 23 rd May 2000 passed
by the learned Additional Sessions Judge (ASJ) in Sessions Case No. 147
of 1999 arising out of the FIR No. 559 of 1997 registered at Police Station
(P.S.) Hauz Khas under Section 376/34 IPC. By the said judgment the
learned ASJ convicted the four appellants for the offence of gang rape
under Section 376 (2) (g) IPC. The appeal also challenges the order dated
24th May 2000 passed by the learned ASJ sentencing each of the
appellants to ten years‟ rigorous imprisonment (RI) and to pay a fine of
Rs. 5000/- each and in default of payment of to undergo a further RI of
one year.
Case of the prosecution
3. According to the prosecution, the four appellants who were living in the
neighbourhood of the prosecutrix (PW 1) at the Shaheed Bhagat Singh
Jhuggi Camp, Katwaria Sarai, entered her jhuggi about 9 pm on 28th July
1997 and demanded a bidi from her. She refused to give them any bidi.
Thereafter they demanded water which she again refused. She alleged that
thereafter the appellants switched off the electricity and appellant Gunjesh
caught hold of her hands and the other three accused tore out her clothes
and committed rape on her. The prosecutrix alleged that she raised an
alarm and fell unconscious thereafter. Her mother Bashira Khatoon (PW3)
came there on hearing the alarm and saw the four appellants coming out of
the jhuggi. PW 3 found the prosecutrix lying unconscious inside the
jhuggi. It is stated that the police control room (PCR) van took the
prosecutrix to the All India Institute of Medical Sciences (AIIMS)
Hospital, where her statement was recorded by the police. Thereafter the
FIR No.559 of 1997 was registered.
4. According to the prosecution, information was received in the Police
Control Room (PCR) at around 9.30 pm about a quarrel at the Shaheed
Bhagat Singh Jhuggi and was noted down in a daily diary (D.D. No. 26-
A). Sub Inspector (SI) Jai Bhagwan (PW 7), who was the Investigating
Officer (IO), along with Constable Khushi Ram (PW 4) went to the place
of occurrence. They were told that the prosecutrix had already been taken
to AIIMS. After reaching the AIIMS Hospital SI Jai Bhagwan sought the
permission of the doctor on duty to record the statement (ruqqa) of the
prosecutrix. By this time at around 11.45 pm the prosecutrix was
medically examined by Dr.Monika. The medico legal certificate (MLC)
(marked as Ex.PW6/A) records that the prosecutrix informed the doctor
that she was assaulted by four men and raped by three of them. The doctor
recorded that there were "no external signs of injury on the face, breasts,
abdomen and upper limbs." There were "bruises of 4x4 cm on medial
aspects of both thighs." The blouse of the prosecutrix was found torn in
the back side along the left sleeve. However, since she did not have spare
clothes, the clothes she was wearing could not be sealed. Three slides
were made and handed over to the police.
5. After the doctor declared her fit SI Jai Bhagwan recorded the statement
of the prosecutrix at around 2 am and thereafter sent the ruqqa with
Constable Khushi Ram to the Police Station where Head Constable
Raghuvir Singh (PW 2) registered the FIR No. 559 of 1997 against the
four accused. Constable Khushi Ram then took the FIR and the original
ruqqa back to SI Jai Bhagwan at AIIMS, by which time according to SI
Jai Bhagwan the duty constable produced before him "2 sealed parcels
containing petticoat and slide of the prosecutrix and a sample seal which I
seized vide memo Ex.PW4/A." According to SI Jai Bhagwan he,
Constable Khushi Ram and the prosecutrix then proceeded to the place of
occurrence where he prepared a site plan (Ex.PW7/B). He recorded a
supplementary statement of the prosecutrix as well as the statement of her
mother PW3. He and Khushi Ram then returned to P.S.Hauz Khas and
deposited the seized articles in the malkhana. The next day, i.e. 29th July
1997 SI Jai Bhagwan accompanied by Constable Mohan Singh (PW 5)
reached the jhuggi of the prosecutrix and on her pointing out arrested the
four appellants. They were then taken to AIIMS where they were
subjected to medical examination. The doctor on clinical examination
opined that there was nothing to suggest that any of the said accused
persons were incapable of performing sexual intercourse. The blood
sample and the slide of smegma of the above named three accused persons
were seized and the case property was deposited in the malkhana from
where it was sent to the Forensic Sciences Laboratory (FSL). After
committal of the case to the Court of Sessions, a charge under Section 376
(2) (g) IPC was framed against the appellants on 25th August 1999. They
pleaded not guilty and claimed trial.
Proceedings before the trial court
6. Seven witnesses were examined for the prosecution. In their statements
under Section 313 CrPC, the appellants denied the incriminating
circumstances put to them. They stated that the prosecutrix was indulging
in prostitution and that earlier also complaints had been lodged against the
prosecutrix and certain other women in that regard. It was the case of the
appellants that they had been falsely implicated. They examined two
defence witnesses, Mahanand Jha (DW 1) and Sharabuddin (DW 2).
7. On behalf of the accused persons, it was argued before the trial court
that the MLC of the prosecutrix belied her allegation that she had been
raped. The FSL report also did not bear this out. It was argued that if the
prosecutrix indeed fell unconscious it could not be said that she was aware
as to who had committed rape on her. Constable Mohan Singh in whose
presence the accused persons were arrested and thereafter sent for medical
examination could not identify them in court. The fact that the prosecutrix
was indulging in prostitution was proved by the evidence of DW1
Mahanand Jha and DW2 Sharabuddin. They confirmed that complaints
had been lodged earlier against her and certain other women by the
residents of the jhuggi camp.
Judgment of the trial court
8. The learned trial court held that the testimony of the prosecutrix (PW1)
was corroborated by her mother PW2 who had stated that she had seen the
four accused persons coming out of the jhuggi. According to the trial
court, the testimony of the prosecutrix was corroborated by the MLC
which recorded that her blouse was torn. The submission of the accused
that she was not injured was belied by the presence of bruises measuring 4
x 4 cm on both her thighs. The argument that since she was unconscious
and her mother too found her in that state and therefore the prosecutrix
could not have known who committed the rape was belied by the MLC
which recorded that she was conscious and coherent. The trial court
concluded that since the examination of the prosecutrix at AIIMS took
place at about 11.45 p.m., and she was raped at around 9 pm, it was
possible that she could have regained consciousness between 9 p.m. and
11.45 p.m. Since the accused Pankaj Chaudhary, Qasim and Jai Lal
admitted that they had been medically examined at AIIMS, the fact that
the Constable Mohan Singh PW 5 who took them for medical examination
did not identify them was to no avail. The accused persons had failed to
prove that they had lodged any complaint against the prosecutrix. It was
opined by the trial judge that "the prosecutrix was having no axe to grind
against the accused persons for falsely implicating them in this case."
Relying upon the judgment of the Supreme Court in the State of
Rajasthan v. Noore Khan 2000 (3) Supreme Today 70, the learned trial
court held that there was no reason to disbelieve the testimony of the
prosecutrix and that she had no reason to implicate only them for this
offence. Although accused Gunjesh had not committed the rape, by virtue
of the proviso to Section 376(2)(g) IPC he was liable to be convicted for
the offence. As far as the sentence was concerned, the learned trial court
held that since the appellants were involved in a heinous offence, each of
them should be sentenced to ten years‟ RI.
Orders in appeal
9. The present appeal was admitted by this Court on 10 th July 2000. An
application was filed by the appellants under Section 391 CrPC praying
that the additional evidence should be permitted to be led by them in their
defence during the pendency of the appeal. In this application it was urged
that on 28th July 1997 at about 9.20 p.m., the prosecutrix along with three
other women, was in police custody having been arrested in FIR No. 558
of 1997 under Section 160 IPC registered at P.S: Hauz Khas. If indeed she
was in police custody at about 9.20 p.m. on 28 th July 1997 the question of
the appellants having committed the rape on her at around 9 p.m. on that
day did not arise. Copies of both FIRs were enclosed with the said
application. By an order dated 12th January 2001 this Court opined that "In
this case, additional defence evidence sought to be led, is copy of the FIR
and the charge-sheet of the same police station. If it is true it would go to
the root of the matter and thus essential for the justice here in the case."
The application was accordingly allowed and the trial court was directed
to record additional evidence in defence sought to be produced by the
defence. The prosecution was given an opportunity to cross-examine the
witnesses produced in defence.
Additional Evidence
10. Pursuant to the aforementioned directions, the trial court recorded the
additional evidence. On 16th March 2001, the deposition of Asst. Sub
Inspector (ASI) Prem Chand (DW3 ) was recorded. On 30th March 2001,
the evidence of Head Constable (HC) Ratan Lal (DW4) and Constable
Sagar Chand (DW5), Dharamvir Singh (DW6 ) and SI Sher Mohammed
(DW7 ) were recorded. DW3 got the original rukka on the basis of which
FIR No. 558/97 was registered marked as Ex. DW3/A. The personal bond
of the prosecutrix which was marked as Ex. DW3/B and the jama talashi
(search memo) was marked as Ex. DW3/C. The DD entry No.73B
recorded in the police station by ASI Prem Chand was marked as Ex.
DW3/D. DW4 HC Ratan Lal got DD entry No.67B which was made by
him on 28th July 1997 marked as Ex. DW4/A. DD No. 25A which was
also made by him on the same day regarding registration of the FIR
No.558/97 was got marked as Ex.DW4/B. DW6 Dharamvir Singh got
marked copy of the report of the Joint Commissioner (Crime & Traffic)
dated 7th November 2000 and the connected notes on file as Ex. DW6/A.
SI Sher Mohammed (DW7) brought the record of the PCR for 28th July
1997.
11. After the recording of the additional evidence this Court by its order
dated 22nd May 2001 directed the release of the appellants on bail. At the
next hearing this Court was informed by the learned APP for the State that
an enquiry had been conducted by the Joint Commissioner of Police and
appropriate action would be taken in "due course." The order dated 24 th
September 2001 passed by this Court reads as under:
"Crl.A. 384/2000
On the last date of hearing, learned APP for the
State had stated that enquiry had been conducted in
the matter by the Joint Commissioner of Police and
appropriate action in the matter would be taken in
due course. A copy of the enquiry report and
action by the Joint Commissioner was ordered to
be placed on record. The same has not been done.
Let the same be now positively filed within four
weeks.
Renotify on 2nd November, 2001."
12. Thereafter on 4th December 2001 the Court recorded:
"Crl. A. 384/2000
Learned APP for the State submits that the matter
has been examined by the senior officers and the
departmental action has been approved by the
Commissioner of Police.
List the appeal for hearing in due course."
Submissions of Counsel
13. Mr. Dharmender Arya, Mr.Sunil Bainisla and Mr. Sunil Kumar,
learned Advocates appearing for the appellants submitted that the
appellants have been falsely implicated in this case as is evident from the
additional evidence recorded pursuant to the orders passed by this court. It
is submitted that the evidence discloses that at around 9.20 p.m. on 28th
July 1997 the prosecutrix was in fact in the custody of the police in FIR
No. 558 of 1997, and therefore there was no question at all of the
appellants having committed rape on her. Narrating the sequence of
events, it is pointed out by the learned counsel that the information was
received at P.S.Haus Khas about a quarrel at the jhuggis involving sex
workers around 7.30 p.m. DD entry No. 67B was written at around 8.05
p.m. Thereafter ASI Prem Chand (DW 3) visited the spot with a female
constable Ms.Topo and a male constable Sagar Chand (DW5). DW 3 drew
up a rukka on the spot at 8.50 p.m., and sent it to the PS with DW 5 police
station where a DD entry as well as the FIR was registered at 9.20 p.m by
Head Constable Ratan Lal (DW 4). DW 5 then left the police station
taking with him the original ruqqa and the FIR and reached Katwaria
Sarai bus stop where DW 3 is alleged to have been waiting, and thereafter
returned to the police station only at 10.20 p.m. as is evidenced by DD
entry No.73B. The DD entry No.25A shows that the FIR 558 of 1997 was
registered only at 9.20 p.m. The arrest and search memos and the bail
bonds could have been drawn up only thereafter. The policemen (DWs 3
and 4) returned to the PS only at 10.20 pm. Therefore the prosecutrix was
in the custody of the police at least till around 10 pm.
14. It is pointed out that FIR No. 559 of 1997 it was preceded by DD entry
No.26A recorded at P.S. Hauz Khas. At that stage the PCR was only
informed that there was a quarrel and not of any rape having been
committed. Although the rape is alleged to have been committed at around
9.00 p.m. on 28.7.1997, and the prosecutrix was alleged to have been
taken to AIIMS even before SI Jai Bhagwan could reach there at around
9.30 pm. The medical examination of the prosecutrix took place only at
11.45 pm on 28.7.1997. The FIR in respect thereof was registered only at
3.15 a.m. on 29.7.1997. Considering that AIIMS was only 7 kilometers
away from the scene of occurrence, the delay was unexplained. Although
the prosecutrix stated that her clothes were torn out by the accused at the
time of rape, her medical examination showed that only the blouse was
torn along the back of the left sleeve and her clothes could not be sealed as
the prosecutrix did not have any extra clothes. This belied the statement
that the sealed clothes along with the slides were seized by SI Jai
Bhagwan from the duty constable at the hospital and deposited by him at
the police malkhana as soon as he reached there in the early hours of
29.7.1997. No such clothes were produced during the trial. The learned
counsel also pointed out that the presence of smegma on the three accused
persons who were medically examined also showed that they had not
recently indulged in any sexual activity. The FSL report only showed that
the semen stains were found on the petticoat of the prosecutrix and that
this matched the blood group of the accused Jai Lal. But this solitary
circumstance could not be said to prove the offence of rape.
15. Learned counsel for the appellants point out that the facts concerning
FIR No.558 of 1997 registered at the same police station against the
prosecutrix under Section 160 IPC were deliberately suppressed by the
prosecution during the trial of the present case. Although the charge sheet
in FIR No.558 of 1997 was readied on 30th July 1997 itself it was filed in
the court only on 8th October 1998. It is alleged that whole prosecution
against the appellants was mala fide and that since they had protested
against the running of the prostitution racket in the Shaheed Bhagat Singh
Jhuggis by the prosecutrix and certain other women and this case was
deliberately foisted on them by the local police. The learned counsel have
placed on record the copies of the written representations dated 21 st July
1997 and 1st May 1996 written by the residents of the Shaheed Bhagat
Singh Jhuggi Camp, protesting against the running of the prostitution
racket. These representations bear the stamp of the Hauz Khas Police
Station in acknowledgment of the receipt thereof. It is submitted that the
police had deliberately kept back this material also from the trial court and
that this would have clearly proved the fact of previous complaints having
been made by the jhuggi dwellers which included some of the appellants.
In any event both DW 1 and DW 2 had categorically stated that the
prosecutrix was involved in prostitution and this evidence was ignored by
the learned trial court. The reports of the Joint Commissioner of Police as
well as the DCP, Vigilance have substantiated the submissions of the
appellants that the case against them was a false one.
16. Mr. Pawan Bahl, the learned APP submits that the evidence of DWs 3
to 5 showed that although the prosecutrix was arrested on the spot, she and
the other women arrested were released at around 8.50 pm on 28th July
1997 upon furnishing their bail bonds and even before the ruqqa was sent
by DW 3 to the P.S. for registration of the FIR. He then refers to the
evidence of DW4 HC Ratan Lal, who stated that he telephonically
informed ASI Prem Chand (DW3) about the FIR number which was
written on the bail bond furnished by one of the women arrested along
with the prosecutrix and that this telephonic call took place at around 8.52
p.m. According to Mr.Bahl the evidence of DW 3 that he left the spot at
around 8.52 pm after releasing the women after taking their bail bonds
should be believed.
17. It is urged by Mr. Bahl that the report of the Joint Commissioner
(Crime & Traffic) Ex. DW6/A should not be relied upon by this Court
because it was merely an opinion of one police officer. He refers to certain
observations of the Supreme Court in the decisions in Sham Kant v. State
of Maharashtra 1992 Suppl. (2) SCC 521 and T.T. Antony v. State of
Kerala 2001 II AD (Crime) SC 513. According to him, the subsequent
inquiry report submitted in December 2001 by Shri S.K. Gautam, Deputy
Commissioner of Police also should not be referred to by this Court since
that was not part of the evidence in the case. Mr. Bahl refers to the written
submissions of the State where the following three factors are pointed out
as proving the case of the prosecution:
"C. Corroborative evidence.
(i) MLC of the prosecutrix Ex PW 6A shows injury
`Bruises on 4 x 4 cm on medial aspects of both
thighs‟. `Blouse torn along the back of the (L)
sleeve. (The injury found could be possible by use
of force).
(ii) FSL report Ex PW7/G shows semen stains of `B‟
group on the petticoat of the prosecutrix, which
matches with the blood `B‟ group on the petticoat
of the prosecutrix, which matches with the blood
of `B‟ group of accused Jailal.
(iii) PW-3 Bashira Khatoon mot her of the prosecutrix
saw all the accused persons coming out of the
house of prosecutrix after the alleged occurrence."
Sequence of events on the evening of 28th July 1997 pertaining to FIR
558 of 1997
18. The most crucial aspect of the present case is about the sequence of
events that took place on the evening of 28 th July 1997. The incident of
quarrel involving sex workers at the Shaheed Bhagat Singh Jhuggi
beginning at around 7.30 pm on 28th July 1997 was first reported to PS
Hauz Khas by telephone by an unidentified caller. DD entry No.67B of
28th July 1997 at PS Hauz Khas records that at 8.05 pm, an unidentified
person had informed that in the Shaheed Bhagat Singh Jhuggi Camp "a
lady is quarreling." The entry records that the information received on
telephone, was registered in the rojnamcha, and the copy of the report was
handed over to ASI Prem Chand (DW 3) who along with Constable Sarla
Topo and Constable Sagar Chand (DW 5) left for the place of occurrence.
The ruqqa drawn up by SI Prem Chand also indicates the time of the
occurrence as 7.30 p.m. on 28th July 1997. The ruqqa records that when he
reached the place i.e., at "Aruna Asaf Ali Shaheed Bhagat Singh Road"
there was a large crowd of people present on the road and women "were
hurling filthy language with loud voices." The ASI with the two
constables brought under control four women including the prosecutrix. It
was recorded that the above named women were hurling abuses openly on
the common road and obstructing the movement of the people and thus
had committed the offence under Section 160 IPC (affray). The ruqqa
records that the date and time of the sending of the report was 8.50 p.m.
Significantly, this ruqqa written by DW 3 himself states that he is sending
it to the PS with DW 5 and that he is staying back for continuing
investigations. It also makes no mention of DW 3 having already arrested
the four women, or having already drawn up their arrest and search
memos, their bail bonds and of having already released them.
19. By the time DW 3 deposed before the trial Court on 16 th March 2001
pursuant to this Court‟s directions, the appellants had already been
convicted and it was their specific case that the prosecutrix was in police
custody in FIR No. 558 of 1997 till about 10 pm. In his deposition DW 3
gave a version, not reflected in the ruqqa and clearly in a bid to explain
how the prosecutrix could have been in her jhuggi at 9 pm. DW 3 stated
that all of the above steps, i.e. the arrest and search of the four women,
their giving bail bonds and being released was done between 8.17/8.18 pm
(when according to him he reached the spot which was three km away
from the PS) till 8.50 pm. He says in his deposition that "I had completed
investigation up to 8.50 pm. After sending rukka I went and made
telephone call to the duty officer and told him (sic asked him) what would
be the serial number of the case." Here again there is a problem. The FIR
was registered only at 9.20 pm and therefore no FIR number would have
been available prior thereto. So DW 3 uses the term "serial number."
However, there was no such „serial number‟. Clearly what the IO would
have needed for the bail bond, arrest memo etc., was the FIR number. In
fact the photocopy of the bail bond of one of the four women (enclosed at
page 61 of the paperbook) reflects the FIR number. The statement of DW
3 that he left the spot soon after sending the ruqqa is also not supported by
DW 4 HC Ratan Lal who was also the person who made DD Entry 25 A
which states that FIR 558 of 1997 was registered at 9.20 pm. In it is stated
that the copy of the FIR along with the ruqqa in original has been sent to
the ASI Prem Chand (DW 3) who was busy investigating the case at that
time at the place of occurrence.
20. In his cross examination by the APP DW 3 states that "I had released
these ladies prior to 8.50 - 8.52 pm." And in response to the question by
the court he stated "the entire investigation was carried by me on the road
leading to Vasant Kunj as the quarrel had taken place on the road." The
time of release of the four women as given by DW 3 in his deposition is
not supported by the record. It will be recalled that in the ruqqa it was
stated that a large crowd had gathered at the spot and that the four women
had to be overpowered and brought under control by the ASI and the two
constables as they were creating obstructions in the movement of people.
If the police reached there only around 8.18 pm and this was the situation
it was highly unlikely for the police to have completed all the steps
referred to (i.e., the arrest, the search, the drawing up of bail bonds and the
release) in respect of each of the four women and released them by even
8.52 pm as claimed by DW 3. As per the site plan drawn in FIR 559 of
1997, the distance between the road and the jhuggi was such that it was
impossible for the prosecutrix to be alone back in her jhuggi at 9 pm. It
will also be recalled that according to SI Jai Bhagwan when he reached the
spot (i.e. the jhuggi of the prosecutrix) at 9.30 pm, she had already been
picked up by the PCR van and taken to AIIMS.
21. In his deposition ASI Prem Chand (DW 3) states that after making the
call to the P.S. he told lady constable Ms.Topo that she should return
home. However, there is a difficulty here too since the DD entry no. 73B,
which admittedly was recorded by DW3, states that he and the two
accompanying constables Ms.Topo and Sagar Chand (DW 5) returned to
the P.S. at 10.20 pm. Therefore DW 3 tries to make up for this by stating
that "usually such an entry (is made) about the staff returning to the police
station. Although they may return to their homes without doing so." What
exactly DW 3 was doing between 8.52 pm and 10.20 pm is not very clear.
It is improbable that throughout this time he was at the Katwaria Sarai bus
stop as is sought to be suggested. All this raises more questions. To this
court it is plain that DW 3 was not speaking the truth before the court.
22. HC Ratan Lal (DW4) in his deposition states as under:
"DD entry No.67B was made by me on 28-7-97. The
entries Ex. DW4/A DD No.25A was also made by me
on the same day regarding regn. of FIR No.558/97.
This FIR was recorded on the basis of rukka brought
by constable. FIR No. 558/97 was recorded by me. The
copy of FIR is Ex. DW4/B. After recording FIR
No.558/97 I had sent Ct. Sagar Chand with original
rukka and copy of FIR to the IO who was reported to
be on the spot. Prem Chand had made a telephone call
prior to 9.20 p.m. and he made enquiry from me that he
had sent Ct. Sagar Chand with rukka and I should
inform him FIR No. I told FIR No. to him. He had
telephone call around 8.52 p.m. I could not have
registered another FIR between 8.52 p.m. and 9.20
p.m. because I was in process of recording this FIR.
At 8.52 p.m. I had not registered the FIR, the FIR
was registered at 9.20 I only told case number. I do
not remember if I had similarly told FIR No. to any
other IO. However whenever next FIR number is asked
by some senior officer, I can tell." (emphasis supplied)
23. A careful perusal of the above deposition would show that that DW4
had not yet registered the FIR at 8.52 p.m. Although in the initial part of
his deposition he says that he gave ASI Prem Chand the FIR number, he
then says that "the FIR was registered at 9.20 I only told case number."
Clearly another desperate attempt at fudging facts. It will be recalled that
in DD Entry 25 A DW 4 notes that ASI Prem Chand was even at the time
of that DD entry i.e. 9.20 pm., still investigating the case at the place of
occurrence. Therefore the versions of DW3 and DW4 as to when DW 3
left the spot are not consistent. The version of DW 3 about when he
released the four women and when he left the spot after completing
investigation is not supported by DW 4. It appears to this court that neither
DW 3 nor DW 4 is speaking the truth.
24. What happened after the registration of the FIR is spoken to by DW5
Constable Sagar Chand (DW 5), who took the rukka from the spot and
reached the police station at 9.05 p.m. He states that he started the spot at
about 8.50 p.m. with the rukka. He again left the police station around
9.30 p.m. with the copy of the FIR and the original rukka and instead of
reaching the spot, he reached the Katwaria Sarai bus stop at around 9.40
p.m. where he found the IO standing. He stayed at the bus stop up to 10.00
- 10.15 p.m. and did not go to the police station. According to him since
the Katwaria Sarai bus stop was a sensitive point he was asked by the
SHO to stay at the bus stop. He therefore maintains that the DD entry at
73-B showing their having returned to the police station at 10.20 p.m. is
correct. It appears that an alibi is being created with a view to somehow
show that the prosecutrix was released at 8.50 pm on 28 th July 1997. The
attempt seems to be hopeless to this court as these versions are not
supported by cotemporaneous documents. It seems more probable that bail
bonds of the four women were prepared only after DW 5 returned to the
spot with the FIR and ruqqa which must be around 9.45 pm considering
that the spot was at a distance of 3 km from the PS. Given the description
of the scene of occurrence as depicted in the ruqqa with the large crowd
gathered and the four women in a belligerent mood, it is likely that they
were being detained till DW 5 came back to the spot. It seems highly
improbable that the four women, including the prosecutrix, were released
before 8.50 pm on 28th July 1997 as claimed by DW 3. On his part DW 5
is also not speaking the truth when he says that he took the FIR and ruqqa
not to the spot but to ASI Prem Chand at the Katwaria bus stand where he
remained till 10.10 pm.
25. Considerable confusion created by these versions of DWs 3 to 5, who
clearly are not speaking the truth. This is fortified by the report dated 7th
November 2000 of the Joint Commissioner (Crime & Traffic) which has
been brought on record as Ex. DW6/A. This document having been duly
proved by DW 6 has to be treated as evidence forming part of the record
Therefore, this Court finds that the decisions in Sham Kant and T.T.
Antony referred to by the learned APP do not really apply on the facts of
the present case. There is therefore no merit in the opposition by the
learned APP to this Court referring to the said report.
26. In the said report, the Joint Commissioner notes as under:
"This case has been registered at 9.20 p.m. The contents
of the FIR run into two pages. It is natural that twice
carbon copy would have been changed. The FIR has been
registered in the `Hindi‟ language. Corresponding Daily
Diary entry has also been lodged. All this could have
taken, at least 12-15 minutes. Now the timing comes to
9.32 - 9.35 p.m. Const. Sagar Chand took the copy of
FIR and went at the spot. The place of occurrence is at a
distance of 3 kilometres. For covering this much, the
least possible time could be between 10 to 12 minutes (It
is not mentioned, whether he went by scooter, M/cycle or
a bus, but we presume, he went by the fastest available
mode of transport i.e. by scooter). Now the timings
comes to 9.42 - 9.47 minutes p.m. Thereafter, bail form
etc. were filled-in, and the ladies were released on bail.
The ladies were 4 in numbers, and the minimum time
taken by the I.O. to fill in the documents etc. would be
safely assumed at between 15 - 20 minutes. So, the times
comes to about 9.57 to 10.07 p.m. At 10.20 p.m., the I.O.
was back in the police station. (It is recorded
accordingly). So from 8.05 p.m. till about 10 p.m. all the
ladies were in the police custody. This includes
prosecutrix."
27. The above report of the Joint Commissioner is dated 7th November
2000. The sequence as explained by the Joint Commissioner shows that it
is only after the FIR was number was given by Constable Sagar Chand to
the ASI Prem Chand at the spot, which is at the distance of three
kilometers from the police station, that the bail forms were filled in and
the ladies were released on bail. It is for covering this aspect that ASI
Prem Chand has made a false statement in his deposition that he had
released the ladies even before sending rukka to the police station. It is not
possible for him to have noted the FIR number on the bail bond of one of
them without the FIR first being registered. If indeed the bail bonds were
drawn up by him even before sending the rukka, clearly the FIR number
which was available only at 9.20 p.m. could not have been written on one
of them. He therefore was at the spot with the four women, including the
prosecutrix, in his custody till at least 9.30 pm.
28. This Court concludes therefore that the version of DWs 3, 4 and 5 that
the four women including the prosecutrix were released by 8.52 pm on
28th July 1997 after preparing their arrest and search memos and bail
bonds is unbelievable and not supported by the record. Having perused the
site plan drawn up by SI Jai Bhagwan of the location of the jhuggis vis-à-
vis the road where the quarrel and the investigation took place, it seems
unlikely that after her release the prosecutrix returned to her jhuggi by 9
pm. It appears to this Court that DWs 3, 4 and 5 have given false
evidence in this case with a view to secure the wrongful conviction of the
appellants.
Sequence of events on the evening of 28th July 1997 pertaining to FIR
559 of 1997
29. The events leading to the registration of FIR 559 of 1997 which led to
the present case will now be examined. The FIR was triggered by an
information received in the PCR at around 9.18 pm on 28 th July 1997 that
a quarrel was taking place at the Shaheed Bhagat Singh Jhuggi. DW 7 SI
Sher Mohammed stated in his cross-examination that there was an entry at
9.18 p.m. on 28th July 1997 about a call received by one Dewan ji
regarding a quarrel between some sex workers in the jhuggi of JNU Camp.
However, later (as mentioned in the report of DCP S.K.Gautam, which
will be referred to shortly) the caller was identified as Sharabuddin DW 2.
In fact in his deposition DW 2 has said so. This information was then
conveyed to a PCR van in which ASI Kamal Dev was sitting. He then
reached the spot, picked up the prosecutrix and took her to AIIMS. The
information was conveyed by the PCR to P.S. Hauz Khas as well. There
DD entry No.26A was made to the effect that at 9.30 p.m. information was
received about a quarrel between the sex workers. Significantly this DD
entry does not record any incident or complaint of rape. By the time the SI
Jai Bhagwan, the IO in the case reached the spot he was told that the
prosecutrix had already been taken to the hospital by the PCR van.
30. The MLC of the prosecutrix was recorded at 11.45 p.m. The doctor
who prepared the MLC (who was identified by PW6 as Dr. Monika) was
not examined. PW6 was Dr. Alka Sahni of AIIMS who stated that she
identified the handwriting of Dr. Monika. The MLC only bears an initial
at the bottom, which should be presumed to be of Dr.Monika, although
the MLCs of the accused bear the signatures with names in the brackets of
the doctors who prepared them. In the MLC of the prosecutrix, she is
shown as being conscious and coherent with no external signs of injuries
on the face, breast, abdomen and upper limbs. It was noticed that there
were bruises of 4 x 4 cms on the medial aspects of both thighs. Three
slides were made and handed over to the police. The blouse was "torn
along with the back of the left sleeve." Significantly the MLC records that
"clothes could not be sealed as pt. does not have any extra clothes."
31. It will be recalled that SI Jai Bhagwan (PW 7) stated that "duty
constable of the hospital produced before me two sealed parcels
containing the petticoat and slide" The MLC of the prosecutrix clearly
therefore, does not support the version of the police that two sealed parcels
containing the clothes of the prosecutrix and the slides were handed over
to SI Jai Bhagwan by the duty constable at the hospital and deposited at
the police malkhana by the latter. The evidence of PW3 SI Jai Bhagwan is
unbelievable. In fact PW 4 Constable Khushi Ram first made no mention
of the sealed packet containing clothes in his examination in chief. Later
when the APP cross-examined him, he made up for this. Clearly his
version on this aspect is not supported by the record. The duty constable at
AIIMS was not examined.
32. The prosecutrix has also given different versions of the incident.
Initially in her statement to SI Jai Bhagwan she said that the accused put a
cloth over her mouth and committed rape. In her supplementary statement
she said that accused Gunjesh had put a hand over her mouth. In her
deposition before the court she stated that the accused persons "had torn
out my clothes and committed rape." No such torn clothes were ever
seized by the police. What was sent to the FSL was a petticoat allegedly
worn by the prosecutrix. It is not clear when this was seized by the police.
The MLC only reflects that the left sleeve of the blouse at the back portion
was torn. Even that could not be sealed as the prosecutrix had no spare
clothes. Therefore, on the aspect of the seizure of the clothes worn by the
prosecutrix the evidence of the prosecution witnesses is unbelievable and
unsupported by the MLC.
33. There is no dispute that the AIIMS is about seven km from the scene
of occurrence. SI Jai Bhagwan says he reached the place of occurrence at
9.30 pm only to be told that the PCR van had already taken the prosecutrix
to AIIMS. He then says he reached AIIMS at 12.30 am. Why would it take
the SI three hours to reach AIIMS? What was he doing in the meanwhile?
Also if the prosecutrix was taken away to AIIMS even before 9.30 pm,
and the hospital records show that she was brought to AIIMS at 10.05 pm,
why was she not examined till 11.45 pm? The report of Sri S.K.Gautam,
DCP Vigilance, shows that ASI Kamal Dev was in the PCR and he was
the one who went to the spot and took the prosecutrix to the hospital.
Kamal Dev stated that the prosecutrix was conscious and had not alleged
rape when questioned by him. She only told him that she had been beaten
up by three to four boys. The time of prosecutrix being brought to the
hospital is also full of uncertainties. The report of Shri S.K. Gautam DCP
Vigilance states as under in this regard:
"SI Jai Bhagwan went to the hospital and found lady
(prosecutrix*). He recorded her statement concerning
allegations of rape by four persons and sent a Rukka
for registration of a case. The statement of the lady
(prosecutrix*) was recorded at 2.30 a.m. and Rukka for
registration of case u/s 376 IPC was sent at 2.50 a.m. In
the hospital records, the PCR van reportedly arrived
with the lady under reference i.e. (prosecutrix*) at
2205 hrs. There is over writing in the timing mentioned
in the records. Initially it was 2005 which have been
made 2205. In this connection, complaint Sh. Amod
Shashtri alleged that the PCR van reached with the
lady under reference at 2305 which has been made
2205 by over writing whereas the statement revealed
that it was 2005 which was made 2205 by over writing.
Even examination of the documents indicates that it
was written as 2005 which was subsequently changed
to 2205 by over writing. The statement of ASI Kamal
Dev, in this connection, confirms the time of arrival as
2205 who had taken by the injured to the hospital."
* (In order to protect her privacy, the name of the PW1
has been mentioned as `prosecutrix‟)
34. There are inconsistencies in the evidence of the prosecutrix herself.
The most startling is the first statement made by her in her cross-
examination which reads: "I regained consciousness on the next date at
about 10.00 a.m." It is unbelievable that if the prosecutrix regained
consciousness only on the following day at about 10.00 a.m., the police
could have recorded her statement at around 2.11 a.m. as claimed by SI Jai
Bhagwan. The trial court simply failed to notice these aspects.
35. If this is seen in the background of the events concerning FIR 558 of
1997, it seems highly improbable that after her release at 8.50 pm at the
road leading to Vasant Kunj the prosecutrix came back and was alone in
her jhuggi at 9 pm on 28th July 1997, that four of her neighbours entered
her jhuggi and committed rape between then and around 9.18 pm and that
even before 9.30 pm she was picked up from there by the PCR van. It
appears to this court that SI Jai Bhagwan (PW 7), Constable Khushi Ram
(PW 4) and the prosecutrix PW1 have given false evidence in this case.
36. The Joint Commissioner in his report dated 7th November 2000 has
also undertaken a detailed analysis of the evidence and concluded as
follows:
"Analysis of this FIR
As per FIR, the rape is committed at 9 p.m. While at this
time the lady (prosecutrix) was in the custody of the
police in case FIR No. 558 u/s 160 IPC. Four persons
committed the rape. PCR Van took e hours 15 minutes to
cover 7 kms. Case is registered at 3.15 a.m. on 29.07.97.
The rape victim is the same. Police station is the same.
SHO is the same. Even then nobody noticed the facts. It
is, very difficult to judge now, what would have been the
real situation. But the rape case is full of clouds.
Conclusion
As per police records, (prosecutrix*) remained in the
custody of police one hour before and after the time of
alleged rape. This is the truth, based on the documentary
evidence and simply cannot be ignored. Confidential
enquiries have revealed that the (prosecutrix*) is a
prostitute, and still active in her business from her
jhuggi."
* (In order to protect her privacy, the name of the PW1
has been mentioned as `prosecutrix‟)
37. Just like the Joint Commissioner of Police, who in his report dated 7 th
November 2000 states that the possibility of the prosecutrix having been
raped is highly unlikely, Sri S.K. Gautam, the DCP also comes to the same
conclusion in is report of December 2001. The reasons given by him are
inter alia as under:
"The PCR call to South District Control Room at 9.20
p.m. must have been made after about 5/10 minutes
after the actual occurrence of the incidence. Some time
is also taken in transferring the call from PCR to the
concerned District. The person who made the PCR call
has been identified to be Mr. Shrabuddin. He has not
been examined by the E.O. as he could not be located.
However, he would also have taken at least 5/10
minutes in locating a telephone to make a call. By
any stretch of imagination, the incidence would not
have been possibly occurred after about 9 p.m. That
also is about the time when Smt. (prosecutrix*) had
been released by the IO ASI Prem Chand in case FIR
No. 558/97 u/s 160 IPC. Time indicated by ASI Prem
Chand is 8.50 p.m. The time sequence therefore does
not support the allegation of rape. The possibility of
rape, therefore, is highly unlikely, if the time sequence
is correctly recorded."
* (In order to protect her privacy, the name of the PW1
has been mentioned as `prosecutrix‟)
Other aspects of the case
38. The other aspects noted is that SI Jai Bhagwan did not examine ASI
Kamal Dev who was the person in the PCR van which picked up the
prosecutrix from the scene of occurrence. It is indeed incredible that no
independent public witness in a crowded and congested jhuggi camp
(other than PW 3 the mother of the prosecutrix who was an obviously
interested witness) spoke of the police van coming and picking up the
prosecutrix or bringing her back in the early hours of 29th July 1997.
39. The learned APP has placed considerable reliance on the FSL report.
This court has perused the FSL report. None of the slides taken confirmed
the version of the prosecutrix as regards the rape. The mere fact that the
semen stain on the petticoat of the prosecutrix (which incidentally was not
seized at the hospital) is of the B blood group which matches the blood
group of the one of the appellants cannot by itself prove the offence of
gang rape against him. The injuries on the thighs of the prosecutrix could
well be consistent with the version of ASI Kamal Dev who stated that
prosecutrix told him that she had been beaten up by four boys. The third
piece of evidence sought to be relied upon by the prosecution is that of the
mother PW 3. She only says that she saw the four appellants (incidentally
she identified only two of them in court) leaving the jhuggi. This is too
weak a piece of evidence to prove the offence of gang rape. In any event it
is inconsistent with the additional evidence that has now come on record.
40. The evidence of PW 5 Constable Mohan Singh who failed to identify
any of the appellants in the court when they are supposed to have been
arrested in his presence ought not to have been brushed aside lightly by
the trial court. The version of DW 2 as to what transpired on 28 th July
1997 also has not been taken note of by the trial court. The trial court
erred in accepting the evidence of the prosecutrix uncritically when the
entire evidence that has come on record belies her version completely.
41. That there were complaints of prostitution being carried on in the
jhuggis by the prosecutrix and other women is also borne out not only by
the evidence of DWs 1 and 2 but by the report of Shri S.K. Gautam DCP
Vigilance as well. In the light of the evidence of DWs 1 and 2, who have
not been shaken in their cross-examination on this aspect, the conclusion
of the trial court that the accused had failed to prove the making of
previous complaints against the prosecutrix and the other women is
contrary to the record. It is seen that the representations were made over a
period of time since 2003. There was one given on 21st July 1997, just one
week prior to the incident, which specifically named the prosecutrix as
one of the women indulging in prostitution.
42. The trial court‟s reasoning and conclusions are therefore erroneous and
deserve to be set aside.
The conduct of the police
43. It is indeed also inexplicable that in the same police station, Hauz
Khas, on the same date, i.e., 28th July 1997 the aforementioned DD
entries, i.e., DD entries 25A, 26A, 67B and 73B were recorded and yet no
one noticed the connection between them. To any ordinarily skilled
investigator it would have been plain, had these entries been placed side
by side, that something was not ringing right. It would be plain that the
story of gang rape of the prosecutrix in her jhuggi at 9 pm on that day was
unbelievable. It is indeed surprising that Inspector S.M. Bakshi, the then
SHO of the Police Station Hauz Khas who was in full knowledge of all
these events did not detect any inconsistency in the timing of the
registration of the FIR in the rape case.
44. What is most surprising as far as this Court is concerned is that the
police had the entire trial in FIR No.559 of 1997 took place without even a
whisper of FIR No.558 of 1997 which involved the prosecutrix herself as
an accused. Although the charge sheet in FIR 558 of 1997 was prepared
on 5th September 1997, it was not filed in the court till 8 th October 1998.
This delay remains unexplained. The trial court was deprived of seeing the
sequence of events in the manner that has come to light in the present
proceedings. There can be no manner of doubt that the concerned police
officers of police station Hauz Khas had deliberately misled the trial court
by keeping back information which was vital for the decision in the case.
But for the orders passed by this Court on 12th January 2001, it is possible
that the above facts may not have come on the record of the present case at
all.
45. The Joint Commissioner of Police who prepared his report dated 7th
November 2000 deserves to be commended for the objectivity and
honesty with which he has unearthed the facts on a careful perusal of the
police records. So does Shri S.K. Gautam, Dy. Commissioner of Police,
Vigilance who made an independent inquiry into the entire episode in
December 2001. The notings of the Commissioner of Police on the report
of the Joint Commissioner of Police reveal that initially the police were
perhaps awaiting the decision in this appeal to take further action against
the erring police officers. However, in his report Shri S.K. Gautam DCP
Vigilance has stated that the facts unearthed "indicate negligence and
dereliction of duty on the part of the SI Jai Bhagwan and ASI Prem Chand
and Inspector H.M.Bakshi the then SHO PS Hauz Khas. Necessary
departmental action again them have since been approved by the
Commissioner of Police, Delhi." This Court hopes that the necessary
departmental action has already been taken and if not will not be delayed
any further. A report of the departmental action taken against the
identified delinquent police officials be placed on record by the
Commissioner of Police within a period of eight weeks from today.
Conclusions and consequential directions
46. It is shocking that four innocent persons have been made to face the
ordeal of a criminal trial on false charges of a grievous crime for nearly 12
years now. The above narration shows that this has happened on account
of the malafide actions of certain police officials in connivance with the
prosecutrix who had little concern for truth, justice or the rule of law.
They have subverted the course of justice by misleading the trial court into
convicting four innocent citizens, who have lost twelve precious years of
their lives in facing a damning indiction, the stigma of which is unlikely to
be erased for some time notwithstanding their acquittal by this judgment.
This court considers that mere disciplinary action against the delinquent
police officials, who have already been identified by the police itself, will
not be adequate reparation for this heinous act.
47. There is a need to remind ourselves that there has to be accountability
for the abuse of statutory powers, particularly where it has the potential of
adversely affecting the life and liberty of persons. In D.K. Basu v. State of
W.B. (1997) 1 SCC 416, the Supreme Court spoke in the context of abuse
of police powers and the need to enforce accountability. It observed (SCC,
p. 433):
"How do we check the abuse of police power? Transparency of
action and accountability perhaps are two possible safeguards which
this Court must insist upon. Attention is also required to be paid to
properly develop work culture, training and orientation of the police
force consistent with basic human values. Training methodology of
the police needs restructuring. The force needs to be infused with
basic human values and made sensitive to the constitutional ethos.
Efforts must be made to change the attitude and approach of the
police personnel handling investigations so that they do not
sacrifice basic human values......."
48. In the present case, the DCP Vigilance has identified three police
officers i.e. SI Jai Bhagwan and ASI Prem Chand and Inspector
H.M.Bakshi the then SHO PS Hauz Khas as being guilty of dereliction of
duty. Of these two of them i.e. SI Jai Bhagwan and ASI Prem Chand have
deposed as PW 7 and DW 3 respectively in the trial of the present case.
This Court has found that both of them have not spoken the truth before
the trial court. In addition this Court also finds that DWs 4 and 5, Head
Constable Ratan Lal Constable Sagar Chand respectively have also not
spoken the truth. Section 193 IPC punishes the offence of giving false
evidence, as defined in Section 191 IPC. Section 195 IPC punishes the
offence of giving or fabricating false evidence with the intent to procure
the conviction of an offence punishable with imprisonment for life "or
imprisonment for a term of seven years or upwards." In the present case,
the punishment for the offence under Section 376 (2) (g) for which the
appellants were convicted is punishable for a term of "not less than ten
years" and they were accordingly sentenced by the trial court to that
minimum sentence. Therefore the offences under Sections 193 and 195
IPC appear to be attracted as far as SI Jai Bhagwan (PW 7), ASI Prem
Chand (DW 3), Head Constable Ratan Lal (DW 4) and Constable Sagar
Chand (DW 5) are concerned.
49. The prosecutrix PW 1 too has spoken falsehood. As far as she is
concerned the offence under Section 211 IPC of instituting or causing to
institute a criminal proceeding "knowing that there is no just or lawful
ground for such proceeding" would seem to be attracted.
50. Turing to the procedural aspect, in terms of Section 195 (1) (c) CrPC
no court shall take cognisance of any offence punishable under the above
provisions (i.e Sections 193, 195 and 211 IPC) when such offence is
alleged to have been committed in or in relation to any proceeding in any
Court "except on the complaint in writing of that Court, or of some other
Court to which that Court is subordinate". The Registrar General of this
Court is therefore directed to make a written complaint to the concerned
court on the basis of this judgment against the aforementioned persons for
the offences under Sections 193,195 and 211 IPC. The concerned court
will thereafter proceed in accordance with law.
51. There is also the aspect of compensation to the four appellants for the
loss of their precious twelve years in battling a false prosecution. The
State should consider suitably compensating them, monetarily and/or in
any other appropriate manner. It is directed that a decision to this effect be
taken by the State within a period of twelve weeks from today and a
compliance report be placed before this court.
52. It is clarified that the above directions will not come in the way of the
appellants seeking appropriate remedies available to them in law to seek
redress for the violations of their fundamental and human rights to life and
liberty. The costs awarded by this court to the appellants will also be
independent of any other amount they may be awarded as compensation
by the state and/or any other authority.
53. The impugned judgment dated 23rd May 2000 and the impugned order
on sentence dated 24th May 2000 of the learned Additional Sessions Judge
are accordingly set aside. The appellants are acquitted of the offence under
Section 376(2) (g) IPC. The appellants are set at liberty forthwith. Their
bail bonds are discharged and sureties cancelled. The fine amounts, if
paid, will be returned to each of them within a period of four weeks from
today. In the facts and circumstances of the present case, the appeal is
allowed with costs of Rs. 25,000/- to each of the appellants. The costs will
be paid to each of them by the State within a period of four weeks from
today. Proof of payment of costs will be placed on the record by the State.
54. Copies of this judgment be given dasti to the counsel for the parties. In
addition, certified copies of this judgment be delivered within one week
by the Registry to the Chief Secretary, GNCTD, and the Commissioner of
Police, with covering letters drawing attention to the directions issued to
each of them in paras 45, 51 and 53 of this judgment. The Registrar
General will, after complying with the directions in para 50, return the
record to the court concerned together with a certified copy of this
judgment.
S. MURALIDHAR, J.
MAY 05, 2009
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