Rai Singh vs State
2008 Latest Caselaw 1094 Del

*                      HIGH COURT OF DELHI : NEW DELHI

+                                      Crl.A. 52/2003



                               Judgment Reserved on : 22.05.2008

%                              Judgment delivered on:     22.07.2008



RAI SINGH                                                ..... Appellant

                               Through : Ms.Charu Verma, Advocate

                                            Versus


STATE                                                ..... Respondent
                                      Through : Ms.Richa Kapoor, APP


                                      AND


2.                                    Crl.A. 628/2003


RAMESH @ PAPPU                                       ..... Appellant
                               Through : Ms.Charu Verma, Advocate




                                            Versus


STATE (GNCT) OF DELHI                               ..... Respondent
                                      Through : Ms.Richa Kapoor, APP

                                      AND




Criminal Appeal Nos. 52, 294, 628 of 2003                     1 of 29
 3.                                    Crl.A. 294/2003

SADRE ALAM                                           ..... Appellant
                               Through : Ms.Charu Verma, Advocate

                                            versus

STATE                                                   .....
Respondent
                                      Through : Ms.Richa Kapoor, APP


CORAM :

Hon'ble Mr. Justice B.N.Chaturvedi
Hon'ble Mr. Justice Rajiv Shakdher


1. Whether the Reporters of local papers may
   be allowed to see the judgment ?

2. To be referred to Reporters or not ?
3. Whether the judgment should be reported
   in the Digest ?

Rajiv Shakdher, J.

1. These are Appeals under Section 374 (2) of the Cr.P C

against the judgment dated 9.10.2002 and sentence dated

28.10.2002 passed by the learned Additional Sessions Judge,

Delhi Shri M.S. Sabharwal in Sessions Case No. 40/1999 arising

out of FIR No. 81/99 PS Samey Pur Badali. By virtue of the

impugned judgment and order the Appellant, Rai Singh, in

Criminal Appeal No. 52/2003 has been convicted with respect to

Criminal Appeal Nos. 52, 294, 628 of 2003 2 of 29 offences under Section 364-A, Section 302, 201 and Section 34

of the Indian Penal Code, as also of an offence committed under

Section 377 of the Indian Penal code. Similarly, by virtue of the

impugned judgment the Appellant, Ramesh alias Pappu being

Appellant in Criminal Appeal No. 628/2003 has been convicted

for offences under Section 364-A/302/377/201 and 34 of IPC. It is

important to note that there was no charge against Shri Ramesh

@ Pappu under Section 377 of the IPC. Shri Sadre Alam, the

Appellant in Criminal Appeal No. 294/2003 has been convicted

and sentenced by the very same judgment for offences under

Section 364-A/302/201 and Section 34 of IPC as also under

Section 377 of the IPC.

2. We propose to dispose of all the three Appeals by a

common judgment as they arise out of the same impugned

judgment and order of sentence passed by the learned

Additional Sessions Judge.

3. Before dealing with grounds set out in the Appeal, it

would be important to state the case of the prosecution before

the trial court. On 7.2.1999 one Shri Prempal Singh R/o N-41/E-

235, Jhuggi, JJ Camp, Suraj Park, Samaypur Badli, Delhi filed a

Criminal Appeal Nos. 52, 294, 628 of 2003 3 of 29 missing person‟s report at around 8.00 pm with the Police

Station at Samaypur Badli, Delhi (hereinafter referred to in short

as the „said Police Station‟). In the report which is exhibited as

Ex.PW8/A and which was diarized as Daily Diary Entry No. 31/B it

is mentioned that he is a resident of N-41/E-235, Jhuggi, JJ Camp,

Suraj Park, Samaypur Badli, Delhi; that today i.e 7.2.1999 since

1.00 pm, his son Pravesh aged about six years who was playing

with some children is missing and has not returned home since

then. He is further stated to have communicated that even

though he had tried to search for the missing child on his own,

they had not succeeded and consequently, the report was being

filed with the said Police Station. He also supplied the

description of his missing son, Parvesh who, he stated, was

about 3 ft. in the height and was wearing at the relevant time a

sweater having red and green colour stripes and white colour

shorts.

4. The said Prempal Singh further went on to state that

he had received this information about his child, Parvesh having

gone missing on 7.2.99 at around 3.45 pm, when his wife

telephoned him at his work place.

Criminal Appeal Nos. 52, 294, 628 of 2003 4 of 29

5. Since the child could not be found, even after a

missing person‟s report was lodged on 7.2.1999. Shri Prempal

Singh on 9.2.1999 got an FIR registered (Ex PW9/A) under

Section 363 of the IPC. The FIR briefly described the events

which had transpired till then as follows:-

Prempal Singh alongwith his family resided in a Jhuggi

bearing No. N-41/E-235, Jhuggi, JJ Camp, Suraj Park, Samaypur

Badli, Delhi; he worked as a labourer in a factory situated at B-

59, Wazirpur Industrial Area, Delhi-52, for the last 14 years and

that he has been residing in the aforesaid premises for the last

10 years, his family comprised of his wife, Smt Santosh Devi, his

two daughters, Rajni aged 12 years and Pooja aged 8 years,

and a son aged, six years, who was missing since 7.2.1999; that

on 7.2.1999 he had left for work at about 8.00 am when at

around 3.45 pm, his wife Smt Santosh Devi informed him

telephonically that their son Parvesh had gone missing; on

receiving this information from his wife, he rushed home and

looked for his son Parvesh in the neighbourhood; his attempts to

locate his son met with failure, which is when, he had lodged a

missing person‟s report with the Police Station on 7.2.1999. The

prosecution based on the aforesaid background facts and

Criminal Appeal Nos. 52, 294, 628 of 2003 5 of 29 circumstances, attempted to establish that on 10.2.1999, Shri

Prempal Singh came to the Police Station with a ransom note

written in Hindi which, according to him, was found by his wife

placed in between two bricks outside their residence. The

ransom note (Ex PW4/X) was taken in possession by the Police

vide memo dated 10.2.1999 (Ex PW4/A). The said memo (Ex

PW4/A) bears the signatures of Shri Prempal Singh PW8 and sub-

Inspector Birender Singh (PW 15).

6. It is the prosecution‟s case that it is at this point in

time that Prempal Singh (PW8) for the first time suspected the

Appellant‟s Rai Singh and Ramesh @ Pappu as possible suspects

in the case. The investigation of the case was taken over by

Inspector Ved Prakash, the Station House Officer of the said

Police Station. Taking the aforesaid suspicion forward a

supplementary statement of Prempal Singh (PW8) was recorded

by Inspector Ved Prakash. By way of his supplementary

statement Shri Prempal Singh (PW8) is stated to have said that

he was informed by the playmates of his child Parvesh, Keshav

(PW2) and Rupesh (PW3) that Rai Singh had given a one rupee

coin to Pravesh and asked him to accompany Ramesh @ Pappu

for purchasing a sweet/candy, and that upon receiving the

Criminal Appeal Nos. 52, 294, 628 of 2003 6 of 29 ransom note, his suspicion of Rai Singh and Ramesh being

involved in the kidnapping of his child got confirmed.

7. It transpires that Inspector Ved Prakash made

enquiries with the complainant, Prempal Singh, his wife Smt

Santosh Devi, as well as, the two playmates of deceased

Pervesh, Keshav (PW2) and Rupesh (PW3). Upon making

enquiries endeavours were made to locate the

appellants/accused Rai Singh, Ramesh @ Pappu and Sadre

Alam. A police party finally apprehended the appellants/accused

near the western yamuna canal adjacent to north of Khera

Kalan, Bawana Road, Delhi, at around 7.00 am on 11.2.1999.

8. The appellants/accused were interrogated. Upon

interrogation they made disclosure statements which led to the

recovery of the body of the deceased child, Pravesh and the

weapon of offence; a ligature (i.e Tagri). The appellants/accused

guided the police party to a deserted DTC depot on the bank of

western Yamuna canal. Inside the deserted depot which was

locked and had a peripheral boundary wall which was about 14

ft. heigh, the body of the deceased child was found behind a

cluster of reeds and bushes. The body of the deceased child was

Criminal Appeal Nos. 52, 294, 628 of 2003 7 of 29 identified by Shri Prempal Singh (PW8). At that point in time

when the body was recovered it was found that the clothes from

the lower half of the body were removed and there was a

abdominal wound. A ligature (i.e tagri) was found tied around

the neck of the deceased child. A statement with respect to

identification of the body was recorded by the investigating

officer Mr. Ved Prakash both of the father of the child Prempal

Singh (PW8), as well as, the uncle, that is, the brother of

Prempal Singh, Shri Hardesh. The said statements are marked

as Ex PW22/B and Ex PW22/C respectively.

9. Consequent thereto, the dead body was sent for post

mortem. The post mortem was conducted on 12.2.1999 at about

12.30 pm in the afternoon. The post mortem was conducted by

Dr.L.C.Gupta (PW16). The post mortem report notes that upon

external examination it was found that both hands of the

deceased child were tied together with a coloured Polythene; a

colourless polythene was found around the neck as loose

ligature; and that a ligature (tagri) with black coloured

multilayer thread/string having two metal beads (Ghungru)

found around the neck was used to strangulate the deceased

child causing death by asphyxia. The report also noted that the

Criminal Appeal Nos. 52, 294, 628 of 2003 8 of 29 child had been castrated and his testicles were found removed

from the scorotum. Importantly, the report has also opined that

the child had been sodomised. Consequently, an anal swab was

taken for detection of semen stain and/or sperm etc. This report

was proved by Dr. L.C.Gupta (PW16). Based on the post mortem,

Inspector Ved Prakash (PW22) in his testimony has stated that

when he was informed that the child had been sodomised on

13.2.1999 the Appellants/accused were once again interrogated

with respect to the castration and sodomy of the child before

being put to death. Based on information received, two out of

the three accused, that is, Appellants; Rai Singh and Sadre Alam

were sent for medical examination. Their medical examination

was conducted on 13.2.1999 about 2.30 pm. During

examination blood samples of both Rai Singh and Sadre Alam

were also taken and sealed. In this examination opinion was

sought of the experts as to whether the appellants/accused Rai

Singh and Sadre Alam were capable of sodomy. The doctor

concerned vide his opinion (Ex PW19/A) opined that both Rai

Singh and Sadre Alam were capable of sodomy. On 15.2.1999

further investigation was carried out which resulted in, further

disclosure being made. According to the prosecution, the

Criminal Appeal Nos. 52, 294, 628 of 2003 9 of 29 appellant, Rai Singh led the police to the site near the Yamuna

canal situated near Raja Vihar; being the place where he had

hidden behind some bushes his shorts and trousers which he

was wearing at the time of commission of the crime. The said

shorts and trousers were seized vide seizure memo Ex PW 15/E

and sealed with the seal of "VP". Similarly, the other accused

Sadre Alam is said to have pointed out the area where he had

hidden the knife which was allegedly used to inflict injuries on

the child. The said area was also adjacent to the area from

where the clothes of the accused Rai Singh were recovered. A

sketch of the knife was made, which is, marked as Ex PW 15/F.

The said knife was seized vide seizure memo (Ex PW 16/G) and

sealed with a mark of "BS". The said recoveries made were

deposited with the store room of the Police Station. In the

interregnum the police claim that they had also seized a note

book from the house of the accused Rai Singh which contained

certain writings, in the form of verse. The said note book which

is marked as P-2 was seized vide memo Ex PW12/A. The police

also obtained specimen handwriting of the accused on blank

sheets of paper marked as Ex PW22/N to Q. The sealed parcels

received after the post mortem from the mortuary were sent to

Criminal Appeal Nos. 52, 294, 628 of 2003 10 of 29 the CFSL for analysis. The CFSL vide its report dated 8.6.1999

(Ex PW 22/X) has given its opinion which we propose to discuss

in the latter part of our judgment.

10. Based on the aforesaid, the police filed a report

under Section 173 of the Cr.PC. By an order dated 8.9.1999

charges were framed against the appellants/accused. In so far

as Rai Singh and Sadre Alam are concerned, an additional

charge under Section 377 of IPC was also framed. The charges

framed against all three accused Rai Singh, Ramesh @ Pappu

and Sadre Alam read as follows:-

"Firstly, that on 07.02.1999 during the day time after 12 pm you all in furtherance of your common intention kidnapped a minor Parvesh s/o Prem pal Singh from the street near Jhuggi of Prem Pal Singh at Suraj Park, Delhi within the jurisdiction of PS Samay Pur Badali with intention to cause his death or hurt to him in order to compel his parents to pay a ransom of Rs. 1.10 lac and thereby committed an offence punishable under Section 364A IPC, within the cognizance of this court.

Secondly, that after so kidnapping the minor Parvesh on the aforesaid date and place you all in furtherance of your common intention committed his murder intentionally and knowingly by strangulation and cutting his testicals at a secluded place growing bushes surrounded with walls of DTC Depot, Western Yamuna canal, Bawan Road, within the jurisdiction of P S Samey Pur Badali and thereby committed an offence punishable under Section 302/34 IPC, within the cognizance of this court.

Criminal Appeal Nos. 52, 294, 628 of 2003 11 of 29 Thirdly, that after intentionally and knowingly committed the murder of the said boy Parvesh Pal on the above said place mentioned above and after 12 pm on 07.02.1999, you all in furtherance of your common intention concealed his dead body under the bushes, threw his testicals in the Yamuna canal disposed off his clothes, as well as clothes of your co- accused Rai Singh as the knife used in the commission of offence so as to cause disappearance of the evidence of his murder and in order to save you from legal punishment and thus committed an offence punishable under Section 201/34 IPC, within the cognizance of this Court. "

11. In addition the following identical charge was framed

against the accused Rai Singh and Sadre Alam:-

"That on 07.02.1999 after kidnapping the minor Parvesh Pal after 12 pm from his street near Jhuggi , Suraj Park, you took him to a deserted place in the four walls of DTC Depot, in the south of Bawana Road, Western canal, Bawan Road, within the jurisdiction of P S Samey Pur Badali and before committing his murder you had carnal intercourse with the said boy against the order of nature, and thereby committed an offence punishable under Section 377 IPC, within the cognizance of this court."

12. The appellants pleaded that they were not guilty and

claimed trial. Consequently, a trial was commenced and by the

impugned judgment and order the appellants were convicted of

the charges framed against them and sentenced for the

offences as stated hereinabove.

Criminal Appeal Nos. 52, 294, 628 of 2003 12 of 29

13. The learned counsel for the appellants has impugned

the judgment of the trial court on the following grounds:-

(i) there is no eye witness to the commission of the crime.

The entire case of the prosecution is based on circumstantial

evidence which requires the prosecution to establish with

certainty every circumstance so that the court can come to a

definitive conclusion with regard to guilt of the accused. It is the

submission of the learned counsel for the Appellant that the test

to be applied by the Court in the case of conviction based on

circumstantial evidence is that all the circumstances, which are

links in the chain, should unerringly point to the guilt of the

accused and exclude every such hypothesis which establishes

the innocence of the accused;

(ii) the learned counsel for the appellants has submitted that

there are several contradictions and inconsistencies in the

testimony of the witnesses produced by the prosecution. In

particular, the learned counsel has attempted to establish that

the edifice of the prosecution‟s case is based on the last seen

circumstance, which is, that the deceased child was last seen in

the company of the appellants/accused, Rai Singh and Ramesh

Criminal Appeal Nos. 52, 294, 628 of 2003 13 of 29 @ Pappu. This the learned counsel submitted is demolished

upon a close scrutiny of the testimonies of the mother, Smt

Santosh (PW1) and Keshav (PW2) and Rupesh (PW3) which form

the basis of the last seen circumstance. An examination of the

testimony of Smt. Santosh (PW1) scrutiny would show that she

had based her testimony on what she had been told by the two

child witnesses, Keshav (PW2) and Rupesh (PW3). While both

Keshav (PW2) and Rupesh (PW3) had categorically stated that

the deceased child Pravesh returned after having purchased the

sweet/candy. The learned counsel further submits that as a

matter of fact one of the child witness Rupesh (PW3) in the

cross-examination had made a reference to only Rai Singh as

the one who had offered the one rupee coin to the deceased

child for purchasing the sweet. The learned counsel submits that

there is no reference to the other accused Ramesh in the

testimony of Rupesh (PW3).

(iii) The learned counsel for the Appellants has also referred to

other discrepancies, which is, that there is no mention in the

missing person‟s report filed on 7.2.1999, or in the FIR

registered on 9.2.1999 of the appellants as possible suspects.

Criminal Appeal Nos. 52, 294, 628 of 2003 14 of 29 According to the learned counsel for the Appellants this

fact attains importance in view of the fact that there was never

any suspicion in the mind of the family as regards to the

Appellants; the appellants have been named as accused only on

the say so of the police.

(iv) the learned counsel for the Appellants has further

submitted that the ransom note on the face of it lacks credence.

Firstly, for the reason that it does not with certainty give the

location, time or place where the ransom money had to be paid

and second, it makes no sense for the Appellants to have placed

the ransom note outside the house of the deceased child on

10.2.1999 when, according to the post mortem report, the child

had already been killed on 9.2.1999;

(v) the counsel for the Appellants also submitted that the

place where the crime is said to have been committed according

to the prosecution; is highly unlikely and improbable. It is the

learned counsel‟s submission that it would not have been

possible for the Appellants to have scaled a fourteen (14) feet

high boundary wall of the deserted DTC depot with a six year old

child without aid of a ladder or some such equipment. It is

Criminal Appeal Nos. 52, 294, 628 of 2003 15 of 29 contended that the prosecution has not recovered a ladder or

any other such equipment which may have been used to scale

the boundary wall.

(vi) the learned counsel for the Appellants has also submitted

that the recoveries allegedly made by the Appellants are plants

and hence, have to be discarded;

(vii) lastly, the learned counsel for the Appellants has

submitted that the charge under Section 377 of the IPC against

the accused Rai Singh has not been proved and the reasoning of

the trial court on the aspect also cannot be sustained for the

reason that there was no blood sample of the accused taken

which could then have been matched with the rectal swab taken

at the time of the post mortem of the deceased child.

14. Per contra, the learned Additional Public Prosecutor

(APP) has submitted that the court would take cognizance of the

fact that the deceased child was last seen with the accused Rai

Singh and the Ramesh @ Pappu. In this regard, the learned APP

seeks to place reliance on the testimony of the mother, Smt

Santosh Devi (PW1) and Keshav (PW2) and Rupesh (PW3).

Criminal Appeal Nos. 52, 294, 628 of 2003                           16 of 29
 15.            The learned APP              has attempted to meet the

submission of the learned counsel for the Appellants that the

Appellants/accused were not named either in the missing

person‟s report lodged on 7.2.1999, or in the FIR registered on

9.2.1999 by taking recourse to the testimony of the father,

Prempal Singh (PW1) that the complainant‟s suspicion became

firm only after the receipt of the ransom note on 10.2.1999

which thereupon propelled the investigating officer, Shri Ved

Prakash (PW22) to record a supplementary statement of the

complainant, in which, he had categorically made a statement

suspecting the role of the Appellant, Rai Singh in the kidnapping

of his son Pravesh.

16. The learned APP has further submitted that after

apprehending the Appellants, at the instance of the complainant

the Appellants were interrogated. In the course of their

interrogation on 11.2.1999 the Appellants made disclosure

statements which led to the recovery of the dead body and the

ligature used for strangulating the child Pravesh. The learned

APP further submitted that upon receipt of information by the

investigating officer Shri Ved Prakash from Dr.L.C.Gupta who

conducted the post mortem it got revealed that the child

Criminal Appeal Nos. 52, 294, 628 of 2003 17 of 29 Pravesh had been sodomised before being done to death.

Consequently, further investigation was carried out which led to

the recovery of the Knife used for inflicting abdominal wound, as

well as, carrying out castration of the deceased child, as well as

the recovery of the clothes worn by Rai Singh at the time of

commission of the crime. The learned APP relied upon seizure

memo of the clothes (Ex PW 15/E) which relates to the clothes

i.e trousers and shorts worn by accused Rai Singh at the time of

commission of the crime. The learned APP also placed before the

court (Ex PW 15/G) which is the seizure memo pertaining to the

Knife used in castrating, as well as, inflicting abdominal injuries

on the deceased child. The learned APP also relied upon Ex PW

22/B and Ex PW22/C which were statements of the father of the

deceased Shri Prempal Singh and the uncle, Shri Hardesh (PW7)

whereby they identified the dead body of Pravesh which at the

relevant point in time was lying behind the bushes, in the

compound of the DTC depot, near Bawana Road. The learned

APP also relied upon the post mortem report (PW16/A), the CFSL

report (Ex PW22/Y), the ransom letter (Ex PW4/X), and the report

of the handwriting expert to demonstrate that the accused had

a common intention to abduct the child for ransom on 7.2.1999,

Criminal Appeal Nos. 52, 294, 628 of 2003 18 of 29 and that they kidnapped the child after being sodomised by

the accused Rai Singh had been done to death by manual

strangulation.

17. Having heard the learned counsel for both the

Appellants and the State and after perusal of the evidence on

record, we are of the view that there are several crucial missing

links in the evidence placed before the Court by the prosecution.

The discrepancies in our view have arisen are largely due to

crucial lapse in the investigation of the case by the police.

18. Our conclusion that the material placed before the

court is not sufficient to convict the Appellants of the offences

they are charged with, is based on the following:-

19. The first lacunae in the case is with regard to the

reference of the prosecution on the testimonies of the mother

Smt Santosh Devi (PW1), Keshave (PW2) and Rupesh (PW3) to

establish last seen circumstance. A close scrutiny of the

testimony of Smt Santosh Devi would establish that the case of

the prosecution is that between 12.00 noon and 1.00 pm the

deceased child, Pervesh was accosted by Shri Rai Singh in the

company of Ramesh @ Pappu. Rai Singh at that point in time

Criminal Appeal Nos. 52, 294, 628 of 2003 19 of 29 offered a one rupee coin to Pravesh. He is said to have told his

accomplice Ramesh @ Pappu to accompany the child Pravesh to

purchase a sweet/Candy. It is also the prosecution‟s case based

on the testimonies of the two child witnesses PW2 and PW3, that

is, Keshav and Rupesh that they were made to flee the place

as they had been slapped by Rai Singh and that they

immediately hid themselves in a nearby toilet. A close scrutiny

of the testimony of the mother, Smt Santosh Devi (PW1) would

show that she seemed to have a cordial relationship with the

family of Rai Singh one of the accused, as at the relevant point

in time she was basking in the sun on the roof of her house in

the company of several women which included the mother of

the accused Rai Singh. In her testimony she admits that she had

seen the accused Rai Singh and Ramesh @ Pappu in the

morning at 12.00 noon. In so far as the accused Sadre Alam is

concerned, she says that she had not seen him on the fateful

day i.e 7.2.1999. She has also deposed that she was told by

Rupesh (PW3) that the accused Rai Singh had given one rupee

coin to Pravesh and had sent Pravesh with the accused Ramesh

@ Pappu to purchase a sweet/candy. In her testimony she has

said that on the same day i.e on 7.2.1999 at about 6.30 pm

Criminal Appeal Nos. 52, 294, 628 of 2003 20 of 29 accused Rai Singh and Ramesh @ Pappu came to their house at

which point in time she enquired from them about the

whereabouts of her son, Pravesh in response to which she was

told that after getting her son, Pravesh a Candy they have left

Pravesh in front of her house and thereafter left for work. The

fact that the deceased child Pravesh had come back after

purchasing the Sweet/candy is also borne out from the

testimony of Keshav (PW2) where PW2 has stated that he had

seen Pravesh eating the toffees and that Pervesh had two such

toffees in his hands. Furthermore, what is also noted from the

deposition of PW1, the mother, that the relationship between

the family of the deceased child and Rai Singh was cordial. The

mother of the accused Rai Singh, as noted above, was at the

relevant point in time in the company of the mother of the

deceased child. Furthermore, the mother of the deceased child,

Smt Santosh (PW1) has also accepted the fact that the accused

Ramesh @ Pappu occasionally visited her house and had seen

the accused Rai Singh and Ramesh @ Pappu at about 6.30 pm

on the fateful day which is when, she had made enquiries about

disappearance of her son, Pravesh whose reply to the effect that

they had brought the child back after purchasing a toffee;

Criminal Appeal Nos. 52, 294, 628 of 2003 21 of 29 seemed to have satisfied PW1. As a matter of fact, Rupesh

(PW3) has also stated that both accused, Rai Singh and Ramesh

@ Pappu had also joined in the search of Pravesh. Though the

learned counsel for the Appellants has also tried to highlight the

point that Rupesh (PW3) in his cross-examination makes no

reference to Ramesh @ Pappu at that point in time when

Pravesh was made an offer of a toffee by accused Rai Singh is

according to us insignificant as in the examination-in-chief there

is a reference to both Rai Singh as well as Ramesh @ Pappu.

Nevertheless, we are of the view that the prosecution‟s attempt

to place the guilt on the doorstep of the Appellants, Rai Singh

and Ramesh on the basis of them having been last seen with

Pravesh cannot be sustained in view of the discussion above.

20. The aforesaid discussion attains importance in view

of the fact that on 7.2.1999 when the complainant i.e Prempal

Singh, the father of the deceased child lodged a missing persons

report with the Police Station he did not name the Appellants as

possible suspects. As a matter of fact, even on 9.2.1999 when

Shri Prempal Singh lodged an FIR with the Police he did not

name that the Appellants as possible suspects in the case. It is

important to note at this juncture an observation by the trial

Criminal Appeal Nos. 52, 294, 628 of 2003 22 of 29 court while recording the testimony of the mother, Smt Santosh

Devi (PW1) which reads as follows:-

"The witness is not replying the question as to whether she suspected the complicity of accused Ramesh and Rai Singh or not."

21. The above circumstance is rather curious in view of

the fact that the uncle of the deceased child, that is, the brother

of Shri Prempal Singh; Shri Hardesh (PW7) in his testimony has

stated that about three to four years ago the accused, Rai Singh

had attempted to molest Rajni, the other girl child of Shri

Prempal Singh but that attempt failed and he was caught red

handed and beaten up by the residents of the locality. If this

were true one would have expected the family members to

immediately name Rai Singh as a possible suspect in the

abduction of the child, Parvesh. As a matter of fact, in his cross-

examination Hardesh Singh (PW7) admits that with respect to

the molestation of the other girl child of Prempal Singh, Rajni, no

police report was lodged; though there is a denial to the

suggestion made in the cross-examination that since

molestation did not take place, no report had been made to

police.

Criminal Appeal Nos. 52, 294, 628 of 2003 23 of 29

22. The third major lacunae in the case, according to us,

is with regard to the ransom note. It does not fit with the

sequence of events placed before us by the prosecution that the

ransom is the motive behind commission of this ghastly crime.

The reason being that as per the post mortem report, the child

had been done to death on 9.2.1999 around 12.30 pm in the

afternoon. The ransom note according to the testimony of PW1,

that is, the mother Smt Santosh Devi was received on

10.2.1999. Therefore, it does not fit in the sequence of events as

to why the kidnappers would have delivered a ransom note at

the house of Shri Prempal Singh after the child had already been

done to death on 9.2.1999 and taken the risk of placing the

ransom note in front of the house when it was known that there

was heightened tension on account of the missing child.

Furthermore, a bare perusal of the ransom note (Ex PW4/X)

shows that ransom note does not state with specificity as to

when, where and how the ransom had to be paid. This is apart

from the fact that in the ransom a demand is made to deliver

Rs.1,10,000/- on 15.1.1999 i.e nearly three weeks prior to the

date of kidnapping of the child. Even if we were to overlook the

date of 15.1.1999 as an inadvertent mistake on the part of the

Criminal Appeal Nos. 52, 294, 628 of 2003 24 of 29 kidnappers, the reading of the note does not inspire confidence

as being a note which was written contemporaneously by the

accused, Rai Singh on 10.2.1999. The accused, Rai Singh who,

according to the prosecution is the author of the ransom note is

moderately literate . He is stated to have studied upto 8th

standard from DAV Senior Secondary School, Samaypur Badli,

Delhi. Furthermore, the prosecution in attempting to prove that

the ransom note was in the hand of the accused, Rai Singh has

sought to compare this questioned document with the writings

found in a note book (PW-2) seized from the house of the

accused, Rai Singh. The writings found in the note book are

according to the prosecution in poetry/verse form. Taking into

account these cumulative facts it does not appear to us that the

said ransom note placed on record as evidence by the

prosecution is contemporaneous in point of time to the date

when the prosecution has stated the said ransom note was

recovered by the mother of the deceased child.

23. The other lacunae in the case is with regard to the

site where the crime is stated to have been committed. The

prosecution‟s case is that the crime was committed within the

compound of a deserted DTC depot near the western Yamuna

Criminal Appeal Nos. 52, 294, 628 of 2003 25 of 29 canal, North of Bawana Road. The boundary wall which envelops

the said DTC depot is, even according to the prosecution‟s

witnesses PW7; nearly 14 ft. in height with an iron railing on the

top of the boundary wall. The prosecution witnesses have clearly

stated that when they were informed by the accused as to the

place where the dead body of the child could be recovered they

could enter compound of the DTC depot only by using a ladder

to scale the boundary wall. In these circumstances, we are not

convinced that the Appellants/accused could have carried

Pravesh across the boundary wall without the help of a ladder or

some other equipment to facilitate them to scale the wall. In the

medical examination it has come out of both Sadre Alam and Rai

Singh are of an average built; the child himself was about 3 ft. in

height. Therefore, it seems improbable if it is for a moment

believed that the child was kept on the shoulder of the accused,

Sadre Alam as sought to be contended by the prosecution with

Rai Singh on the top of the wall that he could have bent down

and physically covered a distance of several feet and lifted the

child over the wall when admittedly the wall had iron railing on

the top of it. A close scrutiny of the post mortem report also

reveals that both the hip and thighs of the dead body had stains

Criminal Appeal Nos. 52, 294, 628 of 2003 26 of 29 of mud and dust. There is no explanation as to how mud stains

were found on the hip and thighs of the dead body.

24. As regards the scientific analysis carried out on the

Knife which is said to be weapon used both to inflict abdominal

wound and to castrate the deceased child; it is revealed in the

report that the blood on the Knife (Ex-6) was so insufficient in

quantity that it was not possible to carry out a serological study.

An analysis of the trousers/pant (Ex 5a) and the

shorts/underwear (Ex 5b) did not reveal any blood stains. The

reliance of the prosecution on the rectal swab (Ex-9) which the

CFSL report opined carried human semen would not help the

prosecution since the blood samples of Rai Singh (Ex-4) had

putrefied and haemolysed and hence no opinion could be

formed. Furthermore, in the CFSL report (Ex PW22/X) it is clearly

opined that in so far as the trouser/pant Ex 5a and

shorts/underwear Ex 5b used by the accused, Rai Singh are

concerned, no stains of semen could be detected. The aforesaid

scientific evidence on which reliance was placed by the learned

APP does not unerringly conclude that the accused Rai Singh

had sodomised Pravesh as alleged. As a matter of fact, the

finding and the conclusion of the trial court on this issue is

Criminal Appeal Nos. 52, 294, 628 of 2003 27 of 29 bereft of any analysis or reasoning. The reasoning of the trial

Court is found in Paragraphs 42 and 43 of the impugned

judgment. The relevant extracts reads as follows:

".......42. Accused Rai Singh has also been charged u/s 377 IPC and the allegations against him are that on 7.2.99 after kidnapping the minor child Parvesh, he had carnal intercourse with the said boy against the order of nature. The IO of the case Ins. Ved Prakash has deposed that after the post mortem, Dr. L.C.Gupta had disclosed that deceased Parvesh Pal before his death was sodomized. Dr.L.C.Gupta was examined as PW-16 and he also opined that anal findings are suggestive of something hard blunt penis like object introduced in it. This observation of Dr.L.C.Gupta also reveals that before his death, Parvesh Pal was subjected to sodomy.

43. Accused Rai Singh was also medically examined by Dr.Keshav Sharma PW-11 and he proved his report Ex. PW-11/A. On examination the doctor found that the accused Rai Singh has got the capacity to perform sexual intercourse and there was nothing to suggest that he was not capable of doing carnal intercourse. These circumstances also prove that accused Rai Singh, who was capable of doing carnal intercourse, had a carnal intercourse with the child Parvesh Pal before committing his murder......."

25. A bare perusal of the observations made in the afore-

mentioned paragraphs of the impugned judgment would show

that there is nothing on record to connect the accused Rai Singh

with the offence under Section 377 of the IPC. It is to be noted

that the trial court has exonerated the other accused Sadre

Criminal Appeal Nos. 52, 294, 628 of 2003 28 of 29 Alam of the offence under Section 377of the IPC, however,

curiously the trial court convicted Rai Singh when there was no

evidence to connect him to the offence. As a result of the

discussion held above, we are of the view that the prosecution

has failed to prove its case beyond a reasonable doubt and

because of the lacunae and gaps in the evidence placed before

the court which have come to fore, we are of the view that the

benefit of doubt should go to the Appellants. Resultantly, the

Appeal is allowed and the accused are directed to be set free

unless they are required in any other case.

                                            RAJIV SHAKDHER, J




JULY 22, 2008                               B.N.CHATURVEDI, J
mb




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