Raju vs State
2006 Latest Caselaw 2132 Del

JUDGMENT

Aruna Suresh, J.

1. The present appeal has been filed by the appellant challenging the judgment dated 29.4.2002 whereby he was convicted for an offence under Section 376 Sub-section 2(f) and Section 302 of the Indian Penal Code (hereinafter referred to as IPC), as well as the order on sentence dated 30.4.2002 whereby he was sentenced to life imprisonment and pay a fine of Rs. 25,000/- for the offence under Section 376 Sub-section 2(f) and similar sentence for the offence under Section 302 IPC with the direction that both the sentences shall run concurrently.

2. It is a case where a minor girl of 11 years of age fell victim to the barbaric and inhumane act of the appellant who first raped her and then murdered her and threw her dead body in the `nallah' (drain).

3. As the prosecution story goes, deceased Rajni aged about 11 years (hereinafter referred to as the victim) was brought by her uncle Vijay Kumar from village to his Jhuggi at Kusumpur Pahari, Delhi to look after his two minor children. On the night of 22.9.1998, Vijay Kumar and his wife Veena had gone to the Jhuggi of Mahender to negotiate the purchase of Jhuggi of Netarpal. During negotiation, Vijay Kumar felt the need of easing himself. He took a torch and a water tumbler and went towards the `jungle' near the drain. It was at that time he saw in the torch light, Raju, Appellant going towards the drain with the victim on his shoulder. The victim was naked from her lower portion. When Vijay flashed torch on the head of the appellant, he threw the victim in the drain and ran away. Complainant Vijay Kumar in the torch light saw that Rajni was lying dead and her underwear was not on her body. She was bleeding from her private parts and she was having injuries on her forehead. He came back to the Jhuggi and found blood on the bed. On seeing this Vijay Kumar rushed to the Jhuggi of Raju, the appellant and found that appellant was wearing some other clothes and was washing the clothes earlier worn by him. He raised alarm that Raju had raped and killed the victim. Many people from surrounding Jhuggis collected there who caught hold of the appellant and gave him beatings.

4. Police reached the spot and removed the appellant to the Hospital. The Investigating Officer removed the dead body of the victim to the hospital and registered a case under Sections 376/302 IPC and recovered the underwear of the victim from the drain at a distance of about 20 yards from the place where the dead body was recovered. The body was got post-mortemed and exhibits were sent for clinical and serological examination and after completion of the investigation the appellant was charge sheeted.

5. Following charges were framed by the learned Addl. Sessions Judge on 3.5.1999 against the accused:

That on 22.9.1998 on or before 10 p.m. in Jhuggi situated in A-Block, Kusumpur Pahari, within the jurisdiction of P.S.Vasant Kunj, you committed rape on minor Km.Rajni and thereby you committed an offence punishable Under Section 376 IPC and within the cognizance of this Court.

Secondly, on the aforesaid date, time and place after committing rape on minor Km.Rajni you caused her death and thus committed her murder and thereby committed an offence punishable Under Section 302 IPC and within the cognizance of this Court.

Thirdly, after committing the murder of Rajni you knowingly caused the evidence of commission of murder of Rajni to disappear and thereby committed an offence punishable Under Section 201 IPC and within the cognizance of this Court.

The appellant denied the charges framed against him and pleaded not guilty.

6. Vijay Kumar, complainant PW-6 has claimed that he had seen appellant Raju along with deceased Rajni whom he carried on his shoulder and threw her in the `nallah' on the fateful night of 22nd/ 23rd September,1998. He is the complainant and his complaint is Ex.PW-6/A. He has categorically stated that he had brought the victim, who happened to be the daughter of his elder brother, to Delhi to look after his small daughters aged about 4 years and 9 months respectively. On the night of 22nd/ 23rd September,1998 at about 10.00 p.m. he along with his wife Veena, his father-in-law Shyam Lal were sitting in the Jhuggi of Mahender and were negotiating for the purchase of Netarpal's Jhuggi. Appellant was residing in the neighbouring Jhuggi. At about 10.00 p.m. he felt the need to ease himself, therefore, he took a torch and a water tumbler from Mahender and went towards `jungle'. As soon as the torch light fell towards the side of `nallah' (drain) he saw appellant carrying a girl on his right shoulder. The girl was naked from below. When the torch light fell on the left side of forehead of the appellant he (appellant) immediately threw the girl in the drain and ran away. When he saw the dead body in the torch light he found that it was his niece and he also found her `salwar' and underwear missing. Blood was oozing out from her private parts and from an injury on her forehead. He immediately came back to his Jhuggi and found that Rajni was not there, but noticed blood on the bed. He immediately went to the Jhuggi of Raju and found that he was washing the clothes which he was wearing at the time when he saw him with the deceased. He raised an alarm. People reached there. PWs Mahender, Shyam Lal and Veena also reached there. Raju was given beatings as a result of which he became unconscious. The testimony of this witness could not be demolished by the defense counsel in the cross-examination.

7. He is the only witness who had last seen the appellant with the deceased. The other witnesses PW-3 Veena, PW-5 Mahender have fully corroborated the testimony of Vijay Kumar to the fact that he had raised alarm that Rajni had been killed by appellant and they had reached the Jhuggi of Raju who was given beatings by other neighbours who had also collected there. PW-4 Shyam Lal is another witness who along with Veena and Mahender had reached the Jhuggi of Raju, the appellant on hearing the alarm of PW Vijay Kumar. However, this witness did not fully support the prosecution case. The fact remains that he did admit that PW Vijay Kumar had left the Jhuggi of Mahender to ease himself out on the night of 22.9.1998. He also admitted that Vijay Kumar had come back to check if his niece, the victim was in the Jhuggi or not. Therefore, his testimony cannot be totally discarded.

8. Learned Counsel for the appellant has submitted that there is no evidence to indicate that the victim was raped. As per the post-mortem report Ex.PW2/k the doctor did not find presence of any spermatozoa. However, submissions of the learned Counsel for the appellant are devoid of merits. Dr.Alexandar, who conducted post-mortem on the body of deceased Rajni, found perineal tear at 7'O clock position extending from vaginal orifice of size 4.5 cm.x1.2cmx1 cm with bleeding. This indicates that the victim was brutally sexually assaulted before she was killed. In his opinion Dr.Alexandar is very clear when he opined that injuries of genitalia suggest forceful sexual intercourse. As per the FSL report, though not exhibited in evidence but can be considered by the Court under Section 293 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) human semen was detected on the three micro slides and cotton wool swabs described as vaginal slides and vaginal swab. These vaginal slides were prepared and vaginal swabs were lifted by Dr.Alexandar at the time of conducting post-mortem on the body of deceased Rajni. We are, therefore, convinced that deceased Rajni was raped by the appellant who was last seen with Rajni by Vijay Kumar.

9. The FSL report also indicates that pant and `baniyan' belonging to the appellant had blood stains of `A' group. Though this blood group could not be matched with the blood group of deceased because it did not show any reaction to the serological examination, but the examiner did find that the origin of the blood found on the clothes of deceased and on pillow covers etc. were of human origin. The iron rod which was used by the appellant for hitting the deceased was also recovered. Dr.Alexandar after inspecting the rod Ex.P-1 opined that lacerated wound on the right side forehead and lacerated wound on the right side of the face could be caused by the iron rod brought for examination or by any other weapon/ object similar to it. This explains the injuries which were found on the face of the deceased. However, she died due to asphyxia and cerebral congestion caused by manual strangulation which was ante-mortem in nature.

10. Learned Counsel for the appellant has urged that the entire case of the prosecution is based on circumstantial evidence, the prosecution has not joined any other person from the locality who had allegedly gathered at the spot and given beatings to the appellant. Evidence produced by the prosecution is not convincing for upholding the conviction of the appellant.

11. It has been consistently laid down in various judgments by the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. These incriminating facts and circumstances have to be proved beyond reasonable doubt and it is also required to be proved that there is close proximity with the principal fact sought to be inferred from those circumstances. In State of U.P. v. Desh Raj 2006 (3) SCALE 194, it was observed:

15. By now, it is well settled principle that in order to sustain a conviction of circumstantial evidence, the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and inconsistence with his innocence.

12. In Sharad Birdhichand Sarda v. State of Maharashtra , while dealing with the circumstantial evidence, it was held that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defense or plea. The conditions precedent, as laid down in this case by the Apex Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstance should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

13. In the present case PW-6 Vijay Kumar had seen the appellant with deceased Rajni whom he was carrying on his right shoulder. Her lower part of the body was naked and he had also seen in the torch light appellant throwing the dead body in the drain and also the appellant running away and the dead body of Rajni lying in the drain. Therefore, it cannot said that there is no credible evidence against the appellant. The defense counsel has not been able to shatter the testimony of the complainant through cross-examination. The chain of circumstance is complete in this case as other witnesses fully corroborated the prosecution story that appellant was washing his clothes after changing them when he was caught on the screams of the complainant and was given beatings. There is no dispute that conviction can be based solely on circumstantial evidence if it stands the test of law relating to circumstantial evidence as laid down and followed consistently over the years.

14. In this case the last seen theory also comes into play as the time gap between the point of time when the appellant and the deceased were seen last alive and when the deceased was found dead was so small that possibility of any person other than the appellant being the author of the crime becomes impossible. The name of the appellant finds mention in the FIR itself. The golden thread which runs through the web of administration of justice is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other of his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent reference is made to State of U.P. v. Satish .

15. In view of the discussion as above we are of the opinion that the prosecution has completed the chain of circumstances which completely and solely indicate towards the guilt of the appellant who first committed gruesome offence of rape upon a minor girl of 11 years of age and then strangulated her to death. Therefore, we find no infirmity or illegality in the judgment and order on sentence of the learned Trial Court. Hence the appeal being without merit is hereby dismissed.

16. In view of the efforts put in by learned amices Curiae, we direct the State to pay him a fee of Rs.5500/- within six weeks from today.