* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON : 13.02.2012
+ Crl.A.481/1997
RAMAN KUMAR ....Appellant
Through: Mr.R.K.Thakur, Advocate.
Versus
STATE OF DELHI ....Respondent
Through: Ms.Richa Kapoor, APP.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Open Court)
1. The present Appeal challenges the judgment dated 25.10.1997 and an order on sentence dated 28.10.1997 of Ld.ASJ in SC No.32/1996 by which, the appellant was convicted for committing the offences punishable under Sections 366/302/201 IPC and was sentenced to undergo imprisonment for life and various prison terms detailed in the order on sentence.
2. The prosecution had alleged that on 30.09.1992 at about 5.30 P.M., Surabhi Kukereja, aged 6 years, along with her brother Gaurav aged 9 years had gone to witness Ram Lila at Ashok Vihar, Phase-2. When she did not return, her father Vijay Kukereja lodged a "missing person" report vide DD No.15-A at 7.30 P.M. at PS Ashok Vihar. Efforts were made to trace the missing girl but in vain. SI Inder Pal made an endorsement on DD No.15-A and got the case registered under Section 366 IPC. Police made local inquiries and informed the missing persons Crl.A.481/1997 Page 1 of 12 squad; it sent the information to various newspapers and also to TV channels but no clue could be found. During the course of investigation, Vijay Kukereja informed the police that he was receiving threats on telephone. SI Inder Pal put the complaint‟s telephone under surveillance. Vijay Kukereja also handover two letters Ex.P-2 and P-3 received by him on different dates which were seized vide seizure memos.
3. On 30.11.1992 Inspector L.N.Rao took over the investigation from SI Shiv Dayal. On the secret information received by the police about presence of the accused at Azadpur flyover near Shalimar Bagh, he was apprehended at about 8.30 A.M. In his confessional statement, he allegedly disclosed that he could recover the dead body of the child from a canal in village Singalpur and her chappals from the bushes near the canal. Inspector L.N.Rao produced the accused in muffled face on 01.12.1992 and moved an application to conduct TIP proceedings. The accused declined to participate in the TIP proceedings conducted by the Magistrate.
4. It is alleged that on 03.12.1992, the accused took the police team to the canal in village Singalpur and led to recovery of one chappal from the bushes in the canal bank. The chappal Ex.PA was seized by seizure memo Ex.PW-14/B. On 04.12.1992, the accused allegedly took the police team to Pritampura and pointed out the place from where he had allegedly kidnapped one Sarika.
5. Specimen handwriting of the accused was taken. The letters Ex.P-1 to P-4 alleged to be in the handwriting of the accused with his specimen handwriting were sent to the CFSL Crl.A.481/1997 Page 2 of 12 and the police collected the report. Statements of the witnesses were recorded. After completion of investigations, the accused was charged for committing the offences under Sections 366/387/302/201 IPC.
6. To prove the charges, the prosecution examined fifteen witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. to afford an opportunity to explain the incriminating circumstance appearing against him. Accused denied his hand in the incident and pleaded that he was falsely implicated in this case at the behest of his wife with whom he was having litigation due to marital discord.
7. After considering the circumstantial evidence and considering the rival contentions of the parties, the Trial Court convicted the accused for committing the offences under Sections 366/302/201 IPC and acquitted him of the charge under Section 387 IPC. Aggrieved by the said orders, the appellant has appealed to this Court.
8. Counsel for the Appellant has assailed the findings of the Trial Court convicting him on mere suspicion. He urged that the incriminating circumstances relied upon by the Trial Court for conviction were not proved at all. Accused did not make any disclosure statement and nothing was recovered at his instance. Failure of the police to recover the dead body of the missing girl was a serious missing link, from the chain of circumstances to establish the guilt of the accused. Material witnesses cited in the challan were never produced before the Court and an adverse inference is to be drawn. Contents of the letters P-1 and P-4, cannot be basis for drawing inference that it Crl.A.481/1997 Page 3 of 12 was the accused who murdered the child after her alleged kidnapping.
9. Ld. Addl.P.P. for the State supported the findings of the Trial Court and argued that incriminating circumstances relied upon by the prosecution proved the accused‟s guilt beyond reasonable doubt. He failed to explain how and under what circumstance, he wrote the derogatory letters Ex.P-1 to P-
4. Contents of the letters reveal that he was aware of the fate of the child Surabhi and had threatened to kill her brother Gaurav, their mother did not acceded to his demands. Accused absconded from his residence and place of work during the relevant period. The prosecution produced PW-4 Sarika Suri and PW-5 Neelam who categorically testified that the accused had earlier kidnapped PW-4 Sarika. The defence pleaded under Section 313 Cr.P.C. was never put to the witnesses in the cross- examination. Recovery of deceased‟s chappal at the instance of the accused pursuant to his disclosure statement is a strong circumstance under Section 27 Evidence Act.
10. We have considered the submissions of the parties and have scrutinized the Trial Court record. Before we proceed to determine the case on merits, it is desirable to highlight that till date dead body of child Surabhi could not be recovered. Surabhi went missing on 30.09.1992 from the Ram Lila ground where she had gone to witness Ram Lila at about 5.30 P.M. The accused was arrested on suspicion on 30.11.1992 after two months of the incident. The prosecution failed to gather any information when, how and under what circumstances, the child Surabhi was murdered. The police failed to collect any Crl.A.481/1997 Page 4 of 12 evidence that at any time the accused was seen with the deceased prior to his arrest. The police could recover nothing except one chappal Ex.PA to infer that the child was actually murdered. No belongings of the deceased except the chappal were recovered to enable her parents to believe that Surabhi had died. Even the chappal Ex.PA was not shown to Surabhi‟s parents to say that it was worn by her while going to the Ram Lila. Nothing was explained how the police concluded (merely on the arrest of the accused, on suspicion) that Surabhi was not alive.
11. In this case, the corpus delicti has not been proved. The same need not be but death as a fact must be proved. Even death has not been proved in this case. No piece of mortal remains of the dead was found.
12. In the case of „K.T.Palanisamy Vs. State of Tamil Nadu' reported in (2008)3 SCC 100 Supreme Court observed that death as a fact must be proved though corpus delicti need not be established.
13. Another glaring aspect of the case is that no reliance was placed on the circumstance of „last seen‟. No prosecution witness testified if Surabhi was seen in the company of the accused after her disappearance till his arrest. Surabhi had gone to Ram Lila with her brother Gaurav aged about 9 years. No harm was caused to Gaurav and he returned home safe. Nothing has been explained by the prosecution why the Gaurav‟s statement was not recorded and why he was not cited as a witness to throw light how his sister went missing. Gaurav could have been the competent/relevant witness to depose till Crl.A.481/1997 Page 5 of 12 what time both (he and Surabhi) remained together or how she was enticed by the accused or any other person from Ram Lila. Adverse inference is to be drawn against the prosecution for withholding this material witness.
14. There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of Supreme Court. According to that standard the circumstances relied upon in support of conviction must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, and all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
15. Having regard to these principles enunciated with regard to the proof of guilt by circumstantial evidence we shall now examine the various circumstances said to be appearing against the appellant.
16. The prosecution mainly relied upon the circumstance of recovery of chappal Ex.PA pursuant to disclosure statement Ex.P-1. Accused has challenged such Crl.A.481/1997 Page 6 of 12 recovery at his behest. On scrutinizing the evidence on this aspect, we are of the view, that the prosecution failed to prove this circumstance satisfactorily. In the missing report Ex.PW- 13/A, complainant Vijay Kukereja did not give any specific description or make of the chappal which the missing child was wearing that day. There was no special/distinct, feature/mark, on the said chappal. At the time of its alleged recovery, no independent public witness was joined by the police. No site plan of the place of recovery (of the chappal) was prepared. The IO did not deem it proper to take photographs of the chappal lying at a specific place. Even the father of the missing child was not joined at the time of alleged recovery of the chappal. IO was confronted on this aspect and he gave a lukewarm response that missing child‟s father expressed his inability to join the investigation due to shock. No justification was given by the IO for not having test identification proceedings conducted in respect of the chappal. Prosecution witnesses admitted that the chappal was an ordinary one available in the market. They failed to explain why the accused would conceal only one chappal of the missing child in the bushes at the time of her alleged murder. All these unanswered questions cast doubts about recovery of the chappal Ex.PA and this circumstance cannot be considered cogent piece of evidence to connect the accused with the offence.
17. The Trial Court heavily relied on letters Ex.P-1 to P-4 to fasten the guilt on the accused. On scanning the evidence, we find serious lacuna on this aspect. Two letters Ex.P-2 a1nd P-3 were purportedly received by PW-13 Vijay Kukereja. In his Crl.A.481/1997 Page 7 of 12 cross-examination, he failed to state the date and mode of receipt of these two letters. He did not disclose what action was taken by him on receiving the letters. Apparently, he did not suspect the accused as the author of those letters. His testimony does not show that he was threatened on telephone. No call-details of the telephone put under surveillance were produced during the trial.
18. PW-8 Vinod Kumar Gupta claimed that he too had received two letters Ex.P-1 and P-4 seized by the police vide seizure memo Ex.PW-8/A. Again PW-8 Vinod Kumar Gupta did not suspect the accused as author of the letters, nor lodged any complaint with the police. These letters Ex.P-1 and P-4 were handed over by him to the police after a few months of the incident when a Sub Inspector from the police station came to him and enquired if he had received any such letter. PW-8 also did not disclose the mode by which he had received the letters. Only in the cross-examination, he came up with the plea that Ex.P-4 had been slipped through the back door of the house and other letter Ex.P-1 was received by post. He did not elaborate the dates on which he had received these letters.
19. The specimen handwriting of the accused for comparison with writing in letters Ex.P-1 and P-4 was never taken before the Metropolitan Magistrate. No permission was sought from the Court to obtain specimen handwriting and signatures. The police officials failed to explain this serious lapse. No independent public witness was joined at the time of obtaining the specimen handwriting and signatures, during custody.
Crl.A.481/1997 Page 8 of 1220. Undoubtedly, PW-1 N.K.Aggarwal, the Handwriting Expert opined that letters Ex.P-1 to P-4 were written by the same person who had written the admitted writing marked „A-1 to A-7‟ (Ex.P-5 and P-6) and specimen handwriting marked „S-1 to S-15‟ (Ex.P-7 to P-18). The Trial Court concluded that accused was the author of the letters.
21. We have examined the contents of letters Ex.P-1 to P-4. which are vulgar and obscene. These letters manifest sexual perversion of the accused. After going through the letters (Ex.P-1 to P-4) the Trial Court also observed "it seems that he (accused) is a sex maniac". In the letter Ex.P-3 complainant‟s wife was threatened and the author demanded that she should bring cash, near the Traffic Park, Punjabi Bagh or else her son Gaurav would meet a fate worse than Surabhi.
22. No inference can be drawn from the contents of these letters that the accused was responsible for the disappearance of child or her alleged murder. As observed earlier, the prosecution did not prove any specific date when these letters were received by the concerned persons. No complaint was lodged with the police on receipt of these letters. Similar letters were received by PW-8 Vinod Kumar Gupta but no harm was caused to him or his children. PW-13 Vijay Kukereja handed over letters Ex.P-2 and P-3 to the police after an inordinate delay. According to PW-13 Vijay Kukereja‟s deposition, he had received these letters after the lodging of the missing person report. The natural conduct of the witness would have been to immediately hand over the letters threatening to kill Gaurav and Vijay Kukereja to the police. The Crl.A.481/1997 Page 9 of 12 author never took any step to execute the threats; he merely attempted to blackmail the complainant and PW-8 Vinod Kumar Gupta for extorting money. By no stretch of imagination, can it be inferred that the author of the letters was the killer of the child. No nude photos were recovered from the accused. The threat to publish nude photos was a ploy to extort money.
23. Registration of other two cases against the accused for kidnapping other girls are not incriminating circumstances for the offence in this case. Particulars of those cases have not been brought on record. It is also not certain whether the accused was convicted in the said cases. PW-4 Sarika testified that the accused had taken her away on 27.07.1992 at about 3.00 P.M. Her testimony is not relevant to fasten the guilt of the accused about the incident in this case. Apparently, she is not a witness on any circumstance in the present incident. No physical harm was caused to PW-4 Sarika and we are not aware under what circumstance the accused allegedly took her with him.
24. No other cogent incriminating circumstance was relied upon by the prosecution. The record reveals that the accused had a disturbed life and had marital discord with his wife culminating in dissolution of his marriage. He was an employee of PW-2 Vinod Goel and had attended his duties regularly from 01.10.1991 to 31.03.1994. On 30.09.1992, he took leave to go to Court to attend some case. No adverse inference can be drawn against the accused for being on leave on 30.09.1992, when Surabhi went missing in the evening. There is no evidence on record of his abscondance after Crl.A.481/1997 Page 10 of 12 disappearance of Surabhi. As per the testimony of PW-2 Vinod Goel, the accused remained absent from his duties only for 17 days in October. Nothing incriminating was recovered from his house.
25. Contents of letters Ex.P-1 to P-4 apparently influenced the findings of the Trial Court. These letters contain sexually explicit materials suggestive of the author being a sex maniac or sexual predator. The possibility of the author being a stalker cannot be ruled out.
26. As per Encyclopedia of Crime & Justice, Second Edition, Volume 4 - Stalking is the willful and malicious act of following, viewing, harassing, communicating with, or moving threateningly or menacingly toward another person. Stalking behavior may be expressed by written and verbal communications, unsolicited and unrecognized claims of romantic involvement on the part of victims, obsessive surveillance, harassment, loitering, and following that may produce intense fear and psychological distress to the victim. Stalkers use telephone calls, conventional and electronic mail, and vandalism to communicate their obsessional interests. There are a number of aborted or obscene phone calls or anonymous letters addressed to the target professing love or knowledge of the target‟s movements. Written communications or symbolic items are often left on vehicle windows or placed in mailboxes or under doors by the stalker.
27. In the present case, no overt act was assigned to the accused to cause any harm to the recipient of letters for fulfilling his lust or desires. It seems that the letters were not Crl.A.481/1997 Page 11 of 12 taken seriously by the recipients and they did not report them to police. For the serious offence of kidnapping and murder, these letters cannot be the sole basis for his conviction.
28. Thus, none of the pieces of evidence relied on ( to infer guilt) by the Trial Court can be treated as incriminating circumstantial evidence against the accused. Though the offence is serious but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused.
29. In the light of above discussion, we are of the considered view that the prosecution has failed to bring on record clinching evidence to establish the guilt of the accused. The impugned judgment cannot be sustained and is accordingly set aside. The Appeal is allowed. Conviction of the accused/Appellant under Section 366/302/201 IPC is set aside. He is acquitted of the charges framed against him. He shall be set at liberty forthwith, if not required to be detained in connection with any other offence.
(S.P.GARG) JUDGE (S. RAVINDRA BHAT) JUDGE FEBRUARY 13, 2012 tr Crl.A.481/1997 Page 12 of 12