D.R. Khanna, J.
(1) Sher Singh and Tara Chand have been convicted by Shri J.D. Kapoor, Additional Sessions Judge, Delhi under Section 376 Indian Penal Code and each sentenced to undergo rigorous imprisonment for seven years and also a fine of Rs. 500.00 . In default of payment of fine they have to under go rigorous imprisonment for three months.
(2) Brief stated, the prosecution case was that Prem Wati, aged about 20 years and a resident of a village in District Etawah, had come to stay at the house of the mother-in-law of her husband's sister in Gali Munde Wali, Sadar Bazar, Delhi in the month of September, 1982. This she did as the said mother-in-law was not feeling well and was ailing for some time. Her name was Ram Wati. On 12-9-84 at about 3 p.m. Prem Wati went out of the house with a bucket to fetch water from a hand-pump, installed in the street. When she was returning after taking water in the bucket, the two accused, who were residing in the same gali, and another persons were residing in the same gali, and another person were were sitting on a Takhatposh in the gali. Sher Singh snatched the bucket from her hand and Tara Chand, accused grabbed her from her neck and their third companion also caught hold her from her arm and they all forcibly dragged her inside the house of Sher Singh which was opposite to that of Ram Wati. There they gagged her mouth with a piece of cloth and blind folded her. Each one of them then committed sexual intercourse forcibly with her. Before doing so, they had closed the door of the room from inside. She continued struggling but could not raise loud alarm because of gagging. In about half an hour's time Ram Wati, having found that Prem Wati had not returned with water, came down from her house and sensed a commotion and sound of struggle coming from the house of Sher Singh. She became suspicious and went inside. The doors of the two rooms, which she passed through, were not bolted from inside. There she saw Prem Wati lying on a cot and Sher Singh pressing here mouth with his one hand and had put the other on her chest. Tara Chand was lying over her and committing sexual intercourse. On seeing her, Sher got up and gave a slap on her face. She than raised alarm and a number of persons of the locality assembled there and apprehended Sher Singh at the spot. Tara Chand and the third companion managed to escape.
(3) Ram Wati then went to the police station, Sadar Bazar. Suraj Singh, ASI(PW 2), who was acting as duty officer, then recorded in the Daily Diary Register her information to the effect that quarrel was going on at house No. 2318, Gali Munde Wali. Sita Ram, Asi, was given a copy of that report Asi, and entrusted with the investigation. Sita Ram, then went to the spot and recorded the detailed statement of Prem Wati vide exhibit PW-2/B. On its basis the case was registered. Sher Singh, who was at the spot, was taken into custody.
(4) The above prosecution version has been supported by both PW-5, Prem Wati and PW-7, Ram Wati. According to the former, there was none else in the gali which when she was dragged by the three persons inside Sher Singh's house as the persons residing there were seeing a television film on the ground floor portion of the house of Ram Wati and none saw her being dragged. She also stated that during the course of assault on her she received injuries on her head and that Sher Singh had bitten her on her cheek causing injuries. The petticoat which she was wearing vide exhibit P 1 was taken into possession and sealed. The same when sent to Central Forensic Science Laboratory brought out that it had human semen. Sher-Singh, however, according to her gave another kachha to the police instead of what he had been wearing at the time of sexual assault. That kachha, exhibit P2, was found by the Assistant Chemical Examiner to have white stains on the same but human semen could not be detected. Prem Wati further stated that her stomach was swollen and her entire body was aching and having bruises. No bleeding, however, came from her private parts. She denied that she was taken to, hospital for medical examination. However, to this extent, her memory appears to have faltered in as much as she was in fact taken there at about 9 p.m. on the same day. The medical examination report, exhibit PW-10/A shows that she had multiple bruises on face and palm. She was also found to be three months' pregnant.
(5) In cross-examination, she stated that she was confined inside the room for about 1/1 hours by the accused persons. At present, she is married to Bankey Lal. Earlier, she had been married to one Roop Narain. She remained with Roop Narain for six years and had a female child from him. Roop Narain later left her and he got papers of divorce executed. Thereafter, she married Bankey Lal. She further stated that the wife of Sher Singh, accused, was present in the house when she was dragged in and she had closed the first room door of the house when the accused person took her in the second room. Sher Singh had then threatened his wife to close the door as otherwise he would kill her. Prem Wati could not remember how many times each one of the three had committed sexual intercourse with her as she was all through struggling. Tara Chand, who is a relation of Sher Singh, had come to stay in his house a day earlier. Both have children. At the time when the police arrived at the spot, she stated that she was lying almost unconscious on the cot with the entire body aching.
(6) Ram Wati, in her evidence, stated that she was married at Etawah and had come to stay at her parents house in Gali Munde Wali, Sadar, Bazar, Delhi from 1982 for earning livelihood by selling vegetables. In those days she was suffering from Malaria and as such she had sent for Prem Wati, who was with her for 8-10 days. Her husband was then working in a Ready-made Garment factory. She mentioned the relationship of Tara Chand to Sher Singh as the later's sister-in-law's husband.
(7) In cross-examination she admitted that she had not mentioned in her statement before the police that Sher Singh had slapped her when she entered the room. From there she went running on foot to the police station and raising alarm. She only stated there then that a quarrel had taken place at her place. It was when the police came at the spot that Prem Wati and she told them the entire incident. According to her, she did not see any piece of cloth or anything else inside the mouth of Prem Wati as the same was pressed and covered by the hand of Sher Singh. She also added that Sher Singh had threatened her to leave, otherwise he would criminally assault her also. She had accompanied Prem Wati to hospital when she was taken there for medical examination. According to her, Prem wati's first husband had died and Bankey Lal was her second husband. She admitted that there bad been quarrels between her and Sher Singh. One such took place on the eve of Rakhi when her son was bringing water which fell over the rakhi of accused Sher Singh and he beat him. Sher Singh was arrested by the police in that case but she managed for his surety. She was shown photo marked X in which her daughter and one Zahid boy are standing grasping each others hands. She added that Zahid was the maternal grandson of the landlord of the house where she lived and he called her daughter as sister, and used to get rakhi tied from her. He denied that there was any quarrel between her and Sher Singh over that Muslim boy visiting their house. She admitted that the wife of Sher Singh was outside the door of the front room of the house where Prem Wati was assaulted. She could not say if the third boy was there inside the room as it was bit dark and she could see only Sher Singh and Tara Chand. When she left for the police station Tara Chand was still at the spot.
(8) Of the other witnesses examined. Dr. Mukhtiar Singh of Poor House hospital examined Sher Singh on 12-9-81 and found him capable of performing sexual act. He was having some fresh injuries on his body as mentioned in his report, exhibit PW. l/ . These injuries, according to the prosecution were received by him when the people had caught him at the spot. The injuries were mostly on his head and back. No medical examination of Tara Chand, who surrendered in Court after about a month, was obtained for ascertaining whether he was capable of committing sexual intercourse. According to the investigating officer he was otherwise a native of Agra.
(9) Public Witness . 8, Sita Ram, Asi, had reached the spot with Ram Wati and recorded the statement of Prem Wati, vide exhibit Public Witness . 2/B and got a case registered on its basis. He could not remember if the clothes of Prem Wati were torn at that time. He saw injuries on her neck. 50-60 persons from the public including women were then present there. No statement of any of them was recorded. He further stated that Prem Wati had not told him that the accused persons had put cloth in her mouth. According to him, Prem Wati was lying on the floor when he reached there and she was in senses. There was of course one cot lying in the room.
(10) Public Witness . 9, Kundan Lal is the investigating officer. He admitted that no identification was got done of Tara Chand as according to him, his name was given in the supplementary statements of both Prem Wati and Ram Wati. The third accused could not be arrested. He had not taken into possession the bucket, which Prem Wati claims she was crying when she was dragged in the house nor made any inquiry about the same. Prem Wati was said to be crying and weeping with pain. Some faded semen stains were visible on the underwear of Sher Singh and thereforee, it was taken into possession.
(11) The medical examination report, exhibit Public Witness .-10/A of Prem Wati was proved by the record Clerk of Lnjp Hospital as the doctor who had examined her was then on long leave. He testified to her hand-writing and the signatures on the same and admitted that he was not present at the time of the examination.
(12) Sher Singh, accused in his statement under Section 313 Cr.P.C. denied the allegations against him and pleaded that he was innocent. According to him Ram Wati was on inimical terms with him as he used to object to the visit of Zahid at their house and the love affair which Ram Wati's daughter was having with him. Ram Wati bad then challenged him that she would involve him in a false case if he continued to object to the visits of Zahid there. Zahid and Ram Wati, he added had even threatened to stab him.
(13) Tara Chand has altogether denied his presence in the House of Sher Singh on the date of occurrence. According to him when police started harassing Sher Singh, he surrounded himself in the lower court after one month and was remanded to judicial custody.
(14) Two witnesses in defense were examined, namely DW-1, Durga Parsbad and DW-2, Giasi Ram. They are the residents of that gali. According to them, on the day of incident they saw Ram Wati and Prem Wati quarrelling with Sher Singh. The former mentioned that the other accused was also present. The latter stated that Sher Singh bears a good moral.
(15) With this state of evidence on record Mr. Duggal appearing on behalf of the appellants has pointed out that there are a number of infirmities in the prosecution case. Firstly it was highly un-usual on the part of Sher Singh to have committed sexual offence of rape when his wife was present there. Tara Chand would also not have done the same, being a close relation. Secondly, when a number of persons were seeing television on the ground floor of the house Ram Wati, the appellants would not have in the broad day light dragged Prem Wati inside Sher Singh's house without her inviting attention and help by raising hue and cry. None of her clothes was found torn, and the story of her mouth being gagged with a cloth or her blind folding remains un-corroborated by any other evidence. No head injury was besides found on her which she stated was suffered when she was pushed on the cot. She further could not say how many times each of the three assailants had committed sexual intercourse with her. Moreover, no semen was found on the 'Kachha' of Sher Singh and the belated Explanationn given by Prem Wati that he had handed another one to the police finds no support from any other evidence or even her statement under Section 161 Cr. P.C. Tara Chand, Moreover was not examined by any doctor for ascertaining whether he was capable of committing sexual intercourse. The period for which she was kept by the assailants inside the room, has been stated by Prem Wati as about one/l hour while Ram Wati had stated that she had come down after about hour when Prem Wati had not returned with water. Moreover, Ram Wati who had gone to the police station did not mention of the commission of rape but simply stated that some quarrel was going on, at house No. 2318, Gali Mundewali. Ram Wati further did not notice any third person when she had entered the room where rape was being committed. No other independent witness of the street was besides examined about what was witnessed shortly after Ram Wati and Prem Wati, had entered the room and raised alarm. According to Ram Wati and Prem Wati, the latter was lying on a cot while PW-8 Sita Ram A.S.I, mentioned that she was lying on the floor. Ram Wati, it is further pointed out has admitted inimical relations with Sher Singh and there was a quarrel earlier with her son resulting in Sher Singh being arrested. There is also the photo in which Ram Wati's daughter is holding the hand of Muslim boy, about whom Sher Singh had been objecting on the ground that he was having an affair with her daughter. Two of the witnesses produced in defense belong to the same gali and have testified to the good character of the appellants. Prem Wati, it is further pointed out, had left her first husband and claims to be now married to another person. She has been quite a distant relation of Ram Wati, and it was not natural that she had come to attend on her in her ailment which was in the nature of malaria Ram Wati on her part was as well living at the house of her parents and her daughter was having an affair with a muslim boy. As regards Tara Chand, his. name was not mentioned in the first information report, and no identification was obtained. He surrendered himself in the court after about a month.
(16) From the side of the State, on the other hand, Mr. Singh has pointed out that Tara Chand's name was mentioned in the supplementary statements of both Prem Wati and Ram Wati recorded subsequently. Both of them have in clear terms implicated the two accused in the offence of rape. Ram Wati had even seen Tara Chand committing sexual intercourse with Premwati when she entered the room. These two women, it is urged, would not have without any reason implicated the two accused in this grave offence and Premwati too would not have allowed such stigma to be attached to her. In the earlier quarrel which Sher Singh had with the son of Ramwati, it was the latter who claims to have stood as surety for him and got him released. Moreover Ramwati had clearly stated that the muslim boy gets 'rakhi' tied on the arm from her daughter and treats her as his sister. Three persons it is pointed out, had forcibly dragged Premwati after putting hand on her mouth, and this prevented her from raising hue and cry. They had threatened Sher Singh's wife also. In case Premwati was a willing party, she would have allowed herself to be subjected to sexual intercourse in the presence of Sher Singh's wife, nor permitted three persons to have assault on her. Ramwati had no motive or inimical relations with Tara Chand to falsely implicate him when she stated that he was actually having sexual intercourse with Premwati when she entered the room. This direct evidence well covers the absence of medical examination about his capacity to have sexual intercourse. Regarding other discrepancies, they are stated to be minor and natural because of passage of time. Absence of semen marks on the 'kachha' of Sher Singh was explained Premwati, and in any case he could have as well cleaned up with the petticoat, or other cloth.
(17) After giving my utmost and prolong consideration to the entire matter, I am of the opinion that it is difficult to reject the testimony of both Premwati and Ramwati. Premwati had no animosity towards the accused, while Ramwati, though had some quarrel with Sher Singh in the past, the same was not of such nature as to have induced her to make such grave allegations. Moreover when she stated that Tara Chand was actually having intercourse when she entered the room, she had no previous differences with him. The medical examination report of Premwati vide Ex. Public Witness . 10/A shows the presence of sperms in the vagina. She was three months' pregnant, and it is difficult to accept that she had been consenting party to the three persons having sexual intercourse with her at the same time in that state. There had been multiple bruises on her face and palm. She has explained how she could not raise hue and cry when three persons had caught hold of her, gagged her and taken her inside Sher Singh's house. It was, of course, unusual that all this was done when Sher Singh's wife was present in the house. According to Premwati she was threatened by Sher Singh. However, it would also appear highly unusual that Premwati would have allowed sexual intercourse with her willingly when Sher Singh's wife was there, and that too from three persons. As regards Tara Chand, he was actually seen having sexual intercourse with Premwati by Ramwati. The absence of his medical examination, thereforee, need not be given undue significance.
(18) Considering all these circumstances, I am not inclined to differ with the assessment of the evidence by the learned trial court in holding the appellants guilty. Their conviction is upheld. However, both of them have small children, and it is stated that their family lives are likely to be ruined in case long term imprisonments are allowed to prevail. The appellants are not monetarily well off, and their families must, thereforee, be feeling acute strain by their imprisonment. I am under the circumstances inclined to reduce the imprisonment to three years in each case.