Chander Dev Rai vs The State (Nct Of Delhi)
2008 Latest Caselaw 2273 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   CRL.APPEAL No.204/2002

%                                 Date of Decision: 17.12.2008

Chander Dev Rai                                                  .... Appellant

                                  Through Mr.Sumeet Verma, Amicus Curiae
                                          along with appellant in person under
                                          judicial custody.

                                           Versus

The State (NCT of Delhi)                                         .... Respondent

                                  Through Mr.M.N. Dudeja, Additional Public
                                          Prosecutor.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K. SHALI

1.       Whether reporters of Local papers may be                      YES
         allowed to see the judgment?
2.       To be referred to the reporter or not?                        YES
3.       Whether the judgment should be reported in                    YES
         the Digest?



ANIL KUMAR, J.

*

1. The appellant in the present appeal has challenged his conviction

under Section 376 of Indian Penal Code and his sentence of life

imprisonment and a fine of Rs.10,000/- in FIR No.832 of 1992, Police

Station Shalimar Bagh, Delhi imposed by the learned ASJ, Tis Hazari

Courts, Delhi.

2. The case of the prosecution was that on 28th November, 1999,

Shri Ram Bahadur, father of the two-year old prosecutrix, Pooja had

come to House No.564, Gali No.6, Ambedkar Nagar, along with his wife

to attend the Chati ceremony at the house of the son of his Chacha,

named Pramod. On the said day, at about 7.00 PM, Shri Ram Bahadur

found his daughter missing from the house. He along with other family

members tried to search her but could not find her. At about 9.45 PM

the cries of Pooja were heard coming from the house of the appellant

which was in Gali No.6, Haidar Pur, Delhi.

3. When Shri Ram Bahadur, father of Pooja, came to House No.565

of the appellant, he found Pooja wrapped in a blanket. Along with Ram

Bahadur his wife and other people of the locality had also come to the

house of the appellant. Pooja, at that time, was bleeding from the

vagina and a call was made to Phone No.100. The police vehicle, which

had come pursuant to the call made to phone No.100, took Pooja to

Bara Hindu Rao Hospital along with wife of Ram Bahadur. DD No.48B

was recorded and the investigation was handed over to SI Tejpal Singh

who along with Constable Umender Singh, reached the House of the

appellant and found many people gathered there. When SI Tejpal Singh

and Constable Umender Singh reached the house of the appellant, they

came to know that Pooja had already been taken to Bara Hindu Rao

Hospital. Statement of Ram Bahadur was recorded and thereafter, an

FIR under Section 376 of Indian Penal Code was registered by the local

police and investigation handed over to SI Tejpal Singh.

4. During investigation scratches were found on the abdomen of

two-year old girl, Pooja, and therefore, the nail clippings of the appellant

were taken. Besides the prosecutrix, Pooja, the accused was also

medically examined and the CFSL Report and FSL Report were also

obtained with regard to the various articles like garments etc. which

were seized from the spot. The charge was framed against the appellant

on 3rd May, 2000 as under:-

"That on 28th November, 1999 between 7.00 PM to 9.45 PM at House No.565, Gali No.6, Ambedkar Nagar, Haidar Pur, Delhi, you committed rape on Kumari Pooja, aged two years, daughter of Shri Ram Bahadur and thereby committed an offence punishable under Section 376 of IPC".

5. The appellant pleaded not guilty to the charge and claimed trial.

The prosecution in order to prove the case examined father of the

prosecutrix, Pooja, Shri Ram Bahadur, as PW-1; his wife Kusum,

mother of Pooja, was examined as PW-2; Pramod, son of the uncle of

the father Ram Bahadur, was examined as PW-3; Constable Umender

Singh as PW-6 and SI Tejpal Singh as PW-14 and Shri Devender

Sharma, Record Clerk as PW-7 in place of Dr.Sapna. Prosecution

examined in all 14 witnesses and the statement of the accused under

Section 313 of the Criminal Procedure Code was also recorded.

6. We have heard the learned counsel for the parties and have also

perused the testimonies of witnesses and documents. Learned counsel

for the appellant, Mr.Verma, has very emphatically contended that

there is no evidence to connect the appellant with the offence alleged to

have been committed by him. According to him, there is no direct

evidence and mere suspicion cannot take the place of proof. It is

contended that there are no such complete chain of circumstances

established from which the guilt of the appellant can be inferred

conclusively.

7. Learned counsel has also challenged the modality of proof of the

MLCs of the accused and the prosecutrix by a Record Clerk, Shri

Devender Sharma, who was also examined twice in place of the

concerned doctors. Reliance in this regard was placed on Sher Singh v.

State, 1995 JCC 259, to contend that it is not at all appropriate to

examine a Clerk from the hospital to prove handwriting and signatures

of the Doctors without making sufficient enquiries about the

whereabouts of the concerned doctors. It was asserted by the learned

counsel that the investigating officer should have made inquiries to

trace Dr.Sapna, who had examined the prosecutrix and prepared the

MLC or some other doctor acquainted with the handwriting and

signatures on the medical report from the hospital. It was argued that

the examination of some other Doctor could be of assistance to the

cause of justice and not the examination of a record clerk. On behalf of

the appellant, recalling of the said record Clerk, as he was first

examined on 19th April, 2001 and then again recalled for examination

on 3rd July, 2001, has also been challenged. Learned counsel for the

appellant has also contended that the circumstances in the present

case do not fully establish the guilt of the appellant.

8. According to him, another hypothesis is also possible, as it has

not been established that the prosecutrix was picked up by the

appellant at about 7.00 PM, as no person including the children with

whom Pooja was playing had been examined to show that it was the

appellant only who had picked her up from the place where she was

playing. It is contended that the version as given by the appellant that

he found her loitering and crying and, therefore, he took her to his

home is also plausible and feasible. It is asserted that no blood and skin

tissues were recovered from the nails of the appellant though there were

marks on the abdomen of prosecutrix to connect him with the marks on

the abdomen of the prosecutrix. Consequently the marks on the

abdomen of the prosecutrix could not be attributed to had been caused

by the appellant.

9. Further on the vaginal swab no semen of the accused was found

and in the circumstances there is no evidence to link the appellant to

the fact that it was he who committed rape of the minor girl. Mere

recovery of the minor girl from his house does not establish that she

was raped by her when neither the scratches on her abdomen can be

connected to him nor any semen was found on the vaginal swab of the

minor girl.

10. Learned counsel has also contended that the appellant was living

with his daughter and wife in one room tenement and that they were

present there and therefore, in these circumstances, it was highly

improbable that he would have committed rape of two year old girl.

Learned counsel has also contended that there were no injury marks on

the mail organ of the appellant and merely because there were semen

stains on his dirty undergarment, no inference, could be drawn against

the appellant that he had committed the rape.

11. The pleas and contentions on behalf of appellant are refuted by

the learned Additional Public Prosecutor, Mr.Dudeja, contending that

there was no delay in registering the FIR and the accused was arrested

from his residence from where the prosecutrix was found crying and

also bleeding from her private part. It was also urged by him that

semen stains were found on the undergarments of the appellant which

clearly shows overwhelming circumstantial evidence on the basis of

which an irresistible conclusion could be drawn that it was appellant

alone who had committed this ghastly crime. Referring to the statement

of the appellant under Section 313 of Criminal Procedure Code, it is

contended that it was a bland and pure denial which is an additional

link pointing to the guilt of the accused. Emphasis was also laid on the

unnatural conduct of the accused of washing the pajama of the

prosecutrix. Learned Prosecutor contended that since the prosecutrix

was recovered from the appellant, there was no need to examine any

other children with whom she was playing on the fateful day. In the

circumstances, it is contended that the evidence against the appellant

is sufficient to prove his guilt beyond reasonable doubt and he has been

rightly convicted.

12. Sh. Ram Bahadur, father of the prosecutrix, who was examined

as PW.1 stated that he is a rickshaw puller and his daughter went

missing at about 7 PM. At about 9 PM three houses away from the

house of his brother Prem, the cries of Pooja were heard and therefore

he along with other persons who had been searching for her reached

the house of the appellant. There he found his daughter wrapped in

some cloth and she was bleeding and the appellant was in the room.

According to him appellant was beaten by the public and his kacha

(undergarment) was seized. The accused/appellant had also produced

the pyjami (kachi) of Pooja, which was also seized. In his cross

examination he admitted that he cannot tell the names of any of the

persons who had accompanied him to the house of the accused after

hearing the cries of his daughter. He denied the suggestion that wife of

the appellant and his minor daughter was also present in the room. He

also specifically denied the suggestion that the appellant had tried to

locate the parents of the prosecutrix and only when he failed to do so

did he take her to his room. The wife of PW.1 and mother of the

prosecutrix namely Kusum, was examined as PW.2. Though PW.1 had

stated that he found Pooja at about 9 PM, however, his wife deposed

that the cries of Pooja were heard at about 9.45 PM when she along

with her husband and other persons had gone to the house of the

accused. She deposed that the daughter Pooja was wrapped in a

blanket and she was bleeding from her vagina. She had identified the

pyjami of her daughter which Pooja was wearing at the time she went

missing. She, however, admitted that the appellant is a married person

and has one daughter and that his wife is alive.

13. The son of the uncle of the father of prosecutrix, Pramod Kumar

deposed that on that fateful day the prosecutrix along with her parents

had come. He deposed that at about 7 PM when they were busy in Bhoj,

Pooja was playing with other children and she went missing. He also

deposed that her cries were heard at about 9.45 PM and after hearing

the cries he along with other persons went to the room of the accused

and one woman went inside the room and collected Pooja who was

wrapped in a blanket and thereafter, other persons went into the room.

He, however, admitted that the appellant is a married person and he

has a wife and a daughter aged about 7 to 8 years. He also admitted

that there were no complaints received against the appellant regarding

anything in the past. He, however, denied the suggestion that the

appellant had picked up Pooja as she had been lost and as she was on

crying on the road. He also denied that the appellant had not been

aware of the parents of the child and he had brought her to his house

in order to restore her to her parents. He stated that the blanket in

which Pooja was wrapped was having some blood which was not seized

by the police. He denied the suggestion that the appellant has been

implicated only on the basis of suspicion.

14. Constable Omender Singh who appeared as PW.6 deposed that

when he reached the house of the appellant along with SI Tejpal Singh,

PW-14, a huge crowd had gathered there and the appellant was in the

clutches of public and Pooja had already been removed by a PCR van to

the hospital. It was deposed that the appellant was arrested at the spot

vide memo exhibit PW.1/F and his arrest memo, exhibit PW.1/G, was

prepared. According to his deposition he remained there till morning of

29th November, 1999 and he along with Constable Prem Chand had

taken the appellant for medical examination. In the cross examination

the said constable deposed that he had reached the spot at about 11.35

PM and there were about 30 to 40 persons present. He also admitted

that the IO, however, did not record the statement of anyone.

15. To prove the MLCs pertaining to Pooja, Sh.Devender Sharma,

Record Clerk, HRH, Delhi was examined who deposed that Dr.Charu

Gupta had left the services of the hospital and he proved the MLC

No.16712/99 as exhibit PW.7/A. He proved the MLC No.16717 of the

appellant as PW.7/B. This witness was re-summoned on the ground

that Dr.Sapna was not available in the hospital. He deposed that he had

seen the back of MLC No.16712/99 of Pooja and he proved the report of

Dr.Sapna as exhibit PW.7/C. According to him the whereabouts of

Dr.Charu Gupta and Dr.Sapna were not available.

16. The prosecution examined Sh.Tejpal Singh as PW.14 who had cut

the long nails of the accused and had seized the cut nails vide seizure

memo exhibit PW.4/A. He also deposed that he had reached the spot at

about 11.45 AM. He however admitted that the pyjami of the girl was

seized at about 4.30/5 AM. He volunteered that the pyjami was washed

by the accused. He also admitted that he did not ask any public person

to join the investigation. He however deposed that when the pyjami was

seized the accused was in his custody and in his house and his wife

and his small child was also present. He deposed that he had cut the

nails of the accused in the hospital at about 2 PM.

17. The appellant in his statement under Section 313 denied the

incriminating evidence put to him as incorrect. He also gave an

explanation that he had picked up the girl from a shop in Gali No.5

where she was crying. According to him he enquired about the parents

of the girl, but as he was not able to gather any information regarding

them, he brought her to his house. At his house, she had passed stool

so he threw her pyjami and gave her a pyjami of his daughter who was

6 years old. He stated that many people who came to his house were

drunk and snatched the girl from him and that he has been falsely

implicated in this case. He contended that the police made him wash

the pyjami of that small girl and after drying the same, it was seized

from him.

18. From the arrest memo exhibit PW.1/G it is apparent that the

appellant was arrested at 4 AM on 29.11.1999 and at that time his wife

Smt. Raj Kumari was the person to whom intimation about his arrest

was given. The MLC report of the prosecutrix, exhibit PW.7/C, also

discloses that scratches were present on her abdomen. From the FSL

report, exhibit PW.8/A, it is apparent that no skin tissues were detected

from the nail clippings of the accused and even the garments of the

prosecutrix had no semen. However, on the dirty underwear, Ex.P4, of

the appellant, semen stains were found. From the FSL report, exhibit

PW.8/B, it is apparent that there was no semen on the clothes of the

prosecutrix.

19. From the perusal of the evidence and some of the relevant

documents it is clear that there is no evidence which will show

conclusively that the appellant had raped the prosecutrix. It is no more

res integra that to base a conviction on circumstantial evidence alone,

not only the chain must be complete but the evidence should point

inevitably to the conclusion that it was the accused and the accused

alone who was the perpetrator of the offence and any other evidence

which is brought on record should be incompatible with the innocence

of the accused. For bringing home the conviction on the basis of

circumstantial evidence, the facts on the record should be consistent

with the guilt of the accused and should be incapable of being explained

on any other reasonable hypothesis other than that of his guilt.

20. No doubt the prosecutrix was found in the room of the appellant

at 9.45 PM and at that time she was wrapped in a blanket and she was

bleeding from her vagina, which is one of the solitary piece of

circumstance against the appellant but there is no other incriminating

evidence which would connect the appellant to the commission of the

crime. Missing links or evidence in this case are absence of semen

stains either on the garment or the undergarment of the prosecutrix or

on her private parts. Absence of forensic evidence to connect the

appellant with the injuries found on the abdomen of the prosecutrix

despite taking the nail clippings of the appellant and analyzing them for

any skin tissues and/or blood of the prosecutrix. Not associating any

person from the public with the recovery or the arrest of the appellant

despite the fact contended by the prosecution that about 30 to 40

persons had gathered at the spot. Prosecution failing to establish that

the appellant was alone at that time and his wife and daughter were not

present at the time of alleged commission of offense. No conclusive

evidence to show that the girl was with the appellant from 7.00 P.M

when she was allegedly lost till 9.45 P.M when she was recovered from

his room. The appellant has contended that he found the girl crying on

the road and as he could not trace her parents he brought her home.

Though the parents of the girl have denied that the wife and the child of

the appellant were present when they went to pick up the girl after

hearing her cries, however, from the arrest memo and the testimonies of

SI Tejpal Singh, it is apparent that the wife and one small child of the

appellant were present at the place of incident around the time when

the offence is purported to have been committed. This is not the case of

the prosecution that the wife and child of the appellant came later on.

The witness PW.1 in his statement did not say that the accused wife

and child were not present but only denied the suggestion to this effect

in the cross examination. The other witnesses PW.2 and PW3 did not

say that the wife and child of the appellant were not present. From the

testimony of the PW.3 other fact which emerges is that the appellant

was living in one room tenement with his wife and child and there were

no complaints of any type against the appellant in the past. None of the

witnesses could say that the appellant had raped the prosecutrix. The

consistent testimony of these witnesses is that girl Pooja was recovered

from the house of the appellant at about 9.45 P.M and at the time of

recovery she was wrapped in the blanket and she had bled from her

vagina. The blanket in which she was found wrapped was not seized by

the prosecution.

21. This is also no more res integra that examination of the accused

under Section 313 of the Code is not a mere formality and the answers

given by him have a practical utility for the criminal Courts. The

statement under Section 313, apart from affording an opportunity to

the accused to examine incriminating circumstances against him, also

help the Court in appreciating the entire evidence adduced in the Court

during the trial. It also cannot be doubted that it is permissible for the

Court to rely on a portion of the statement of the accused inconsistent

with other evidence against him led by the prosecution, but his

statement has to be considered in the light of the evidence adduced by

the prosecution and weighing his statement with the probability of the

case. The accused/appellant in his statement under Section 313 has

categorically stated that he had picked up the prosecutrix from near a

shop in Gali No.5 where she was crying and as he could not find out

about her parents and he brought her to his house. He also stated that

he had to change her pyjami as she had passed stool in it. He has also

deposed that many persons who came to his house to take the girl were

drunk and falsely implicated him. He also deposed that police made

him wash the pyjami of the small child which after drying was seized

from him by the police.

22. On a perusal of the evidence of PW.1, PW.2, PW.3 and the police

constable, the version propounded on behalf of the appellant, that he

found the girl crying on the road and as he could not ascertain about

her parents he brought her home where his wife and daughter were

present does not appear to be ex-facie improbable. The evidence

adduced by the prosecution is not sufficient to discard this version of

the appellant. This fact that his wife and daughter were present has

been acknowledged by the police officials. The appellant is staying in a

one room tenement and it is improbable that the wife and the child of

the appellant were not present at the time he had brought the

prosecutrix home. This is not the case of the prosecution that the wife

and the child of the appellant had come later on after the prosecutrix

was recovered from his house. Though there were nail marks on the

abdomen of the prosecutrix, however, no skin tissues or blood of the

prosecutrix were found from the nail clippings of the appellant. In the

circumstances, it cannot be inferred that the scratch marks on the

abdomen of the prosecutrix were on account of any act imputable to the

appellant. The vaginal swab of the prosecutrix also does not show the

presence of semen of the accused. The garments and undergarments of

the prosecutrix also does not have semen marks and of course not of

appellant.

23. Merely because the semen stains were present on the dirty

underwear of the appellant, nothing adverse can be inferred against

him who is a married person and capable of having sexual intercourse.

For an adult male who is married and who was living with his wife, it

will not be abnormal to have semen stains on his underwear, nor can it

be inferred on account of it that he had sexual intercourse with the girl

as no semen was found in her vaginal swab or the garments including

undergarment of the prosecutrix. Semen stains on the underwear of a

married man can be for a number of reasons. How old these stains were

has not been established on the basis of the report of FSL. In Rahim

Beg & Anr. v. State of U.P, AIR 1973 SC 343 the Apex Court in para 25

had held that semen stain on the langot of a young man can exist

because of variety of reasons and it would not necessarily connect him

with the offense of rape.

24. The FSL reports also completely exonerate the appellant. Even

their probative value is not sufficient as they have not been proved to

the satisfaction of the Court as they have been proved by a record clerk.

In Sher Singh (Supra) it was held that before the documents like post

mortem report and other reports are proved by a person other than the

person who had prepared them, a thorough enquiry is to be done by the

investigating officer by going personally to the concerned hospital and

making efforts to trace the addresses of the doctor. Even if the persons

who had prepared the documents are not traceable, it was held, that it

is not proper to examine a clerk or a record keeper. In such cases

another doctor working in the hospital who is acquainted with the

handwriting and signatures of the doctor who prepared the same

should have been examined. In the present case only a record keeper

was examined and the said person was again examined for proving the

back of the medical report. He has simply stated that he can identify

the signatures and handwriting of the concerned doctors. No semblance

of effort seem to have gone into tracing the doctors who had recorded

the MLC and conducted the gynecological examination of the

prosecutrix. Prosecution witness simply making the statement that the

said doctor is not available or has left the service is not sufficient.

Invariably before a doctor or for that matter any other person is

employed he is enjoined to give permanent address to the employer.

Same must have been the case here but the prosecution as usual has

chosen a short cut of adducing the record keeper to prove the

documents like MLC, medical examinations by simply stating that

doctors are not available. This affects the probative value of these

documents.

25. There is no evidence that before the appellant picked her up, no

one else had picked her up. Two year old girl had gone missing at about

7 PM. With whom prosecutrix was till she was allegedly picked up by

the appellant when he found her crying on the road has not been

established. The girl had nail marks on her abdomen, which nail marks

were not of accused. The vaginal swab of the prosecutrix did not have

the semen of the accused. Merely because when the girl was recovered

from the house of the accused she was bleeding from her vagina, no

such inference can be drawn conclusively that she was subjected to

rape by the appellant. The other probable hypothesis which was

explained by the appellant in his statement under section 313 of the

Criminal Procedure Code cannot be ruled out completely on the basis of

the evidence adduced by the prosecution. In the circumstances, the

incriminating facts and circumstances as alleged by the prosecution do

not fully establish the guilt of the appellant. In order to justify the

inference of guilt, the inculpable facts alleged must be incompatible

with the innocence of the accused and incapable of any other

explanation.

26. These facts as has been discussed hereinabove leave a

reasonable doubt about the guilt of the accused. In order to arrive at

the conclusive guilt of the appellant, the chain of the evidence is to be

so complete as not to leave any reasonable ground for the conclusion

inconsistent with the innocence of accused.

27. The trial court has held that the accused had no business to take

a child he found on the road to his house and he should have

immediately taken her to the nearest police station and lodged the

report with the police. This cannot be termed as a normal behavior.

Different persons react differently in similar circumstances. Another

assumption relied on by the trial Court is that the normal behavior of

any male person would be to hand over a small girl who has passed

urine or stool to his wife for cleaning and therefore it stood proved

conclusively that he was alone in the house. This assumption has no

legal basis, nor can such an inference be drawn in the facts and

circumstances nor such a presumption can be drawn in law. The

appellant was living in a single room with wife and child. At the time of

arrest, his wife and child were present which is proved from the

statement of his Pw 14, SI Tej Pal Singh. This is not the case of the

prosecution that the wife and child of the accused came later on. None

of the witnesses in their statements have stated that the wife and child

of the accused were not present or came later on, except PW1 denying

the suggestion. It was not for the appellant to prove his innocence

beyond reasonable doubt but for the prosecution to prove the guilt of

the accused beyond reasonable doubt. Even if the appellant, who was

represented by a legal aid counsel during his trial, has not examined

any defence evidence, no adverse inferences can be drawn about his

guilt in absence of conclusive evidence of his guilt by the prosecution.

Absence of semen on the vaginal swab of the prosecutrix; nail clippings

of the accused not connected with the scratch marks on the abdomen of

the prosecutrix; lack of conclusive proof of the absence of the wife and

child of the appellant who were living with him in one room tenement at

the time when the appellant was apprehended; explanation of the

appellant that he was asked by the police to wash the undergarment

(pyjami) of the girl as it was soiled, which after drying was seized by the

police and other factors discussed hereinabove are missing links in the

version of the prosecution.

28. For the foregoing reasons, it is to be held that the circumstances

relied on by the prosecution doe not establishes the guilt of the

accused/appellant beyond reasonable doubt and so the impugned

judgment convicting the appellant and sentencing him for alleged rape

of Pooja, the prosecutrix cannot be sustained and needs to be set aside.

The accused/appellant deserves to be acquitted.

29. Therefore, this appeal is allowed and the judgment dated 30th

August, 2001 convicting the appellant for the offence under section 376

and sentencing him to life imprisonment and fine of Rs.10,000/- by

order dated 1st September, 2001 are set aside and the appellant is

acquitted of charge under section 376 of the Indian Penal Code against

him for which he was tried. Appellant/Accused presently is lodged in

Jail and since he has been acquitted of charge against him, he be set at

liberty forthwith, if not required to be detained in any other case. A copy

of this judgment be sent to the Superintendent of the concerned Central

jail for immediate compliance and for delivering a copy thereof to the

appellant.

ANIL KUMAR, J.

December 17, 2008                                      V.K.SHALI J.
„Dev‟