Delhi High Court
Manish vs The State (Nct Of Delhi) on 8 September, 2008
Author: B.N.Chaturvedi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No.419/2006
% Date of Decision : 8th of September, 2008
# MANISH .....Appellant
! Through : Mr. Rajesh Mahajan and
Mr. Ajay Raghav, Advs.
versus
$
THE STATE(NCT of Delhi) ......Respondent
^ Through : Mr. M.N.Dudeja, APP
* CORAM:
HON'BLE MR.JUSTICE B.N. CHATURVEDI
HON'BLE MR.JUSTICE P.K. BHASIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
: B.N.CHATURVEDI, J.
1. The appellant was, by impugned judgment
dated 24.3.2006, convicted under Sections
363/376/302 IPC and sentenced under different head
of charges vide order dated 1.4.2006 as under:
(i) Under Section 363 IPC - 5 Years RI
(ii) Under Section 376 IPC - 7 Years RI
(iii) Under Section 302 IPC - Imprisonment for life.
All the above sentences are to run concurrently.
2. The appellant is in appeal against the aforesaid
judgment of conviction and order of sentence.
3. The prosecution case unfolds that on the
intervening night of 15th and 16th of July, 2000,
Jagdish, PW-1 (complainant), his wife and two
daughters, namely, Pinki, aged about 17 years and
Asha, aged about 5 years, were sleeping outside their
Jhuggi situate in the field of one Bhoop Singh at
Thokar No.10, Yamuna Khadar, Delhi. The
complainant's younger daughter Asha was sleeping on
a cot with her mother. Jagdish, PW-1, woke up at
about 3/3.30 a.m. when it had started raining. He
noticed his daughter Asha missing from her cot. He,
as also the mother and elder sister, Pinki, of missing
girl, tried to locate her, but failed. Jagdish, PW-1,
eventually on 16th July, 2000 at about 1.10 p.m.
lodged a missing report in respect of Asha with the
police station concerned. Later, on the same day, at
about 6.00 p.m., Jagdish, PW-1, came to know that
the dead body of a girl child was lying in a nearby
nursery, which turned out to be that of Asha. On an
information in that regard, a DD entry No.15-A dated
16.7.2000 was recorded at Police Station Shakar Pur.
A copy of that DD report was assigned to SI Suraj Pal
for necessary action. Thereupon, SI Suraj Pal,
accompanied by Insp.Dharam Pal Singh, SHO and
some other police officials reached the place where
dead body of Asha was lying. SI Suraj Pal recorded
the statement of Jagdish, father of the deceased there
and sent the same with his endorsement thereon for
registration of an FIR under Sections 302/201/376
IPC as from the condition of dead body she was
suspected to have been raped before being done to
death. Accordingly, a case FIR No.289 of 2000 under
Sections 302/201/371 IPC was registered at Police
Station Shakar Pur, Delhi. From the spot, a pair of
HAWAI CHAPPAL was taken into possession by the
police. The dead body of Asha was found lying naked
with her KACHHI placed over her face. In the course
of investigation, a number of persons, including the
appellant and his co-accused Suresh were
interrogated. The investigation culminated into arrest
of the appellant and his friend Suresh on 24th of July,
2000.
4. On postmortem examination on the dead body
of Asha, the Doctor concerned opined asphyxia due to
ante mortem smothering by other party being the
cause of death. Besides, external injures No.1 & 2, as
mentioned in the postmortem report, Ex.PW-3/A, were
opined to be fatal being sufficient to cause death in
ordinary course of nature. Injuries to anal area as
also to external genitalia were, according to the doctor
concerned, ante mortem, caused due to forceful
penetration thereby damaging the local area.
5. Blood sample, vaginal swab and rectal swab of
the deceased were lifted by the doctor concerned and
handed over to the police. Prior to their formal arrest,
on 17th July, 2000 the appellant and his alleged
accomplice, Suresh, were got medically examined by
police at SDN Hospital, Shahdara but no mark of
recent external injury on external genitalia was found
on the person of either of them. It was at the same
time noted by the doctor concerned that there was
nothing suggestive of the fact that they could not
perform sexual intercourse. The blood sample as also
undergarments of the appellant and his alleged
accomplice, Suresh, were collected at the time of their
medical examination and handed over to the police.
6. The learned trial court adjudged the appellant
guilty of committing kidnapping, rape and murder of
Asha on the basis of evidence of last seen, recovery of
a pair of CHAPPAL from the spot and motive, as
emanating from the statement of Pinki, PW-2, the
elder sister of the deceased. Even though Pinki, PW-2,
affirmed that Suresh was standing at some distance at
the relevant time when the appellant had lifted Asha
from the cot to take her away, the learned trial court,
observing that since no overt act in kidnapping of
Asha was attributed to Suresh and as no motive
against him in commission of the crimes was
established, proceeded to acquit Suresh of all the
charges, including that of kidnapping. The
respondent-State is not stated to have preferred any
appeal against such acquittal and thus the same has
attained finality.
7. Shri Rajesh Majahan, Advocate, appearing for
the appellant, advanced extensive oral arguments
against impugned conviction and sentence. Besides,
he has also filed his written submissions. Shri
M.N.Dudeja, Additional Public Prosecutor,
representing the State, also made his oral
submissions. We have re-appraised the evidence on
record in the context of arguments advanced on either
side and adverted to the written submissions of
learned counsel for the appellant as well.
8. The conviction of the appellant being essentially
based on the testimony of Pinki, PW-2, the thrust of
argument on behalf of learned counsel for the
appellant was, particularly, directed against the
creditworthiness of this witness. The learned counsel
for the appellant argued that Pinki, PW-2, made the
statement in regard to having seen the appellant lifting
the deceased from her cot and taking her away, for the
first time, in the court only. He pointed out that no
such statement was ever made by her before the police
and that she had not told this fact even to her parents
at any point of time before her deposition in the court.
The learned counsel for the appellant contended that
the statement made by Pinki, PW-2, was a material
improvement over her previous statement to the police
and, therefore, could not have been accepted to record
the finding of last seen. In support of his contention
reliance was placed by learned counsel for the
appellant on a decision of the Supreme Court in
"Namdeo Daulata Dhayagude & Others Vs. State of
Maharashtra", AIR 1977 SCC 381 : 1977 Crl.J 238. It
was further contended that Pinki, PW-2, named the
appellant and his co-accused, Suresh, as having been
last seen with the deceased by her. However, as the
learned trial court inspite of such evidence acquitted
the co-accused, Suresh, the said circumstance of last
seen ceased to be incriminating against the appellant
also. Sustenance to this argument is sought from a
decision of the Supreme Court in "Pohalya Motya Valvi
Vs. State of Maharashtra", 1980 SCC (Cri) 261. It
was further argued that as the circumstance of last
seen was not at all put by the learned trial court to the
appellant in the course of examination under Section
313 Cr.P.C. to elicit his explanation thereto, if any, the
evidence in regard to last seen is liable to be excluded
from consideration. The decisions of the Apex Court
in "Sharad Birdhichand Sarda Vs. State of
Maharashtra", AIR 1984 SC 1622, "Kehar Singh and
others Vs. State(Delhi Admn.)" , 1988 SCC (Cri.) 711,
"Kanahai Mishra Alias Kanhaiya Misar Vs. State of
Bihar", 2001 SCC (Cri.)537, and "Lallu Manjhi &
Another Vs. State of Jharkhand" , 2003(1) JCC 137
(SC) were referred to by the learned counsel for the
appellant to support his aforesaid plea.
9. Another argument was that the prosecution of
the appellant, as reflected from the chargesheet, did
not proceed on last seen being one of the incriminating
circumstances and in the given situation, the learned
trial court was not justified in reconstructing that
circumstance to convict the appellant. Reliance to
bolster this argument was placed on a decision of the
Supreme Court in "Bhagirath Vs. State of Madhya
Pradesh", 1975 SCC (Cri.) 742.
10. In regard to the other incriminating
circumstance in the nature of recovery of the pair of
CHAPPALS, which Pinki, PW-2, claimed to have had
identified at the time of recovery thereof as belonging
to the appellant, Shri Mahajan contended that the
affirmation of Pinki, PW-2 in this respect remains
uncorroborated. Further, Shri Mahajan pointed out
that though Pinki, PW-2, stated that she had on 24th
July, 2000 identified the pair of CHAPPALS as
belonging to the appellant, Malkhana register as well
as the statement of Moharrir Malkhana reveal that the
same were never taken out of Malkhana on 24.7.2000
to facilitate identification thereof by Pinki, PW-2. Shri
Mahajan contended that the fact that Pinki, PW-2,
inspite of her claiming that she had identified the pair
of CHAPPALS being that of the appellant on the very
day of recovery thereof, did not tell this fact to the
police until 23rd July, 2000 adversely impacts her
creditability in this respect. Learned counsel argued
that the pair of CHAPPALS were neither put into a
parcel nor sealed before deposit thereof in the
Malkhana and, therefore, no sanctity could be
attached to such a seizure. The pair of CHAPPALS,
argued the learned counsel, were not put to a proper
test identification parade and in the absence of any
distinctive feature on the HAWAI CHAPPALS, the same
could not be linked to the appellant on mere statement
of Pinki, PW-2. The learned counsel was critical of
omission on the part of investigating officer in
collecting any scientific evidence to link the CHAPPALS
in question to the appellant.
11. In regard to the motive, the learned counsel for
the appellant submitted that Pinki, PW-2, whose
statement constitutes the sole basis on this score,
being not a reliable witness, her testimony could not
have been accepted by the learned trial court in the
absence of corroboration. Moreover, argued the
learned counsel, by relying on a decision of the
Supreme Court in "Girja Shankar Misra Vs. State of
UP", AIR 1993 SC 2618, a mere presence of motive is
not a proof for the commission of the offence, Shri
Mahajan contended that, in any case, it does not
inspire confidence that the appellant would have killed
her deceased sister even if he had some grudge against
Pinki PW-2. It was lastly argued that the scientific and
medical evidence are rather in favour of the appellant
and the same render the involvement of the appellant
in commission of the crime highly improbable. The
present case, according to the learned counsel, does
not satisfy the various conditions for recording
conviction on the basis of circumstantial evidence, as
set out in Sharad Birdhichand Sarda(supra),
Hanumant Govind Nargundkar & Another Vs. State of
Madhya Pradesh, AIR 1952 SC 343, Dharam Das
Wadhwani Vs. The State of Uttar Pradesh, 1974 SCC
(Cri.) 429 and State of Haryana Vs. Jagvir Singh &
Another, 2004 SCC (Cri) 126. He accordingly, pleaded
for acquittal of the appellant on all the charges.
12. Shri Dudeja, learned Additional Public
Prosecutor, representing the State, on the other hand,
pleaded that though the conviction of the appellant is
based primarily on the statement of Pinki, PW-2, her
unimpeached solitary affirmation provides a safe basis
to sustain the impugned conviction. He sought to draw
sustenance to his plea by stressing on the proposition
of law that where the statement of a witness is found
to be reliable and creditworthy, the same would be
sufficient to convict a person even in the absence of
any corroborative evidence. Shri Dudeja felt that the
incriminating circumstances of last seen, recovery of
the pair of CHAPPALS belonging to the appellant and
motive on his part for commission of the crimes in
question stand firmly established. He contended that
the same being of a conclusive nature and tendency
excluding every hypothesis but the ones for which the
appellant was charged and tried and the chain of
circumstances being so complete that the same is
consistent only with the hypothesis of his guilt, the
impugned conviction and sentence are well founded
and warrant no interference.
13. One must experience no difficulty in
acknowledging the proposition of law that the
statement of even a solitary witness, if reliable and
creditworthy, can constitute a good basis to record
conviction even in the absence of any corroboration.
As noticed earlier, the learned trial court came to
record its finding of conviction against the appellant
primarily on the strength of testimony of Pinki, PW-2.
It was, therefore, no wonder that the testimony of
Pinki, PW-2, came to occupy a focal point in opposite
stances as exhibited in rival contentions. In her
deposition before the Court, Pinki, PW-2, admitted
that inspite of having seen the appellant picking up
the deceased from her cot and taking her away, she
did not raise any hue and cry, rather kept quiet.
According to Jagdish, PW-1, he as well as his family
members consisting of his wife, two daughters,
namely, Pinki PW-2 and the deceased, went to bed
outside their JHUGGI around 11.00 p.m. on the
intervening night of 15/16th July, 2000. Their sleep
was disturbed at about 3/3.30 a.m. as it started
raining. On their getting up, they found the deceased
missing from her cot. If the statement of Jagdish,
PW-1, is to be accepted, the kidnapping of Asha would
appear to have taken place sometime between 11.00
p.m and 3.30 a.m. on the intervening night of 15/16 th
July, 2000. At the outset of her statement, even Pinki,
PW-2, affirmed that she as well as her parents had
found the deceased missing at about 3/3.30 a.m. only.
However, in later part of her examination-in-chief, she
also stated that she had noticed the appellant and
Suresh being present near her house and saw the
appellant lifting her sister Asha(deceased) and taking
her away. She would, thus, appear to have made self
contradictory statements in her examination-in-chief.
If her statement at the very beginning is accepted, it
would necessarily bely her later statement of having
seen the appellant picking up her deceased sister and
moving away with her. Before lodging missing report
with the police at about 1.10 p.m. on 16th July, 2000,
Jagdish, PW-1, is stated to have went around looking
for his missing child Asha. Pinki, PW-2, at no point of
time told her father or mother about having seen the
appellant picking up the deceased from the cot and
taking her away. She kept quiet in this regard even
after the dead body of Asha was recovered from the
nearby nursery. The explanation offered by Pinki, PW-
2, for keeping mum all the way until her deposition
before the Court on 4th of September, 2001 was that
she was scared of and could not muster enough
courage to name the appellant being the person who
had picked up and taken away her deceased sister
Asha. Her conduct in keeping quiet althrough inspite
of her having seen the appellant kidnapping the
deceased within her sight would appear to be
extremely unnatural. There was really no reason for
her to be scared in view of immediate presence of her
parents and she being not alone. Further, even if she
got frightened due to the presence of the appellant and
his alleged accomplice, Suresh, at the relevant point
of time during night, there was no reason for her to
have continued in the same state of mind even after
the appellant and his alleged accomplice had left the
place along with Asha. She could have very well
disclosed the names of the appellant and his
accomplice to her parents. She however did not do so.
She omitted to inform the police also in this regard.
Given the nature of testimony of Pinki, PW-2 on last
seen, it is difficult to attach any credibility to this part
of her statement. Otherwise also, last seen evidence
emerging out of her deposition could not have been
taken into consideration as an incriminating
circumstance since the court on its own cannot make
out a new case for the prosecution to convict an
accused on that basis. It was never the case of the
prosecution that the appellant and his alleged
accomplice were seen by Pinki, PW-2, near her
JHUGGI on the intervening night of 15/16th July,
2000, and that the appellant was seen by her lifting
the deceased from her cot and carrying her away. The
learned trial court was, thus, clearly in error in
convicting the appellant by accepting the testimony of
Pinki, PW-2, on last seen as one of the incriminating
circumstances.
14. Next incriminating circumstance used to
connect the appellant to the commission of crimes was
recovery of a pair of HAWAI CHAPPALS from the scene
of crime. Again, it is Pinki, PW-2, alone whose
testimony is pressed into service to connect the
HAWAI CHAPPALS, so recovered, to the appellant.
Pinki, PW-2, claimed that at the time of recovery itself
of such HAWAI CHAPPALS from the spot, she was able
to identify the same as belonging to the appellant
though she did not tell this fact to anybody, including
her parents and the police. HAWAI CHAPPALS after
being picked up from the spot were not packed and
sealed before deposit thereof in the Malkhana of the
police station concerned. From the seizure memo,
Ex.PW-1/B, one would find that apart from
mentioning the colour and make thereof, no distinctive
mark of identification thereon, if any, was noted by the
police officer concerned. According to the prosecution
case, it was on 24th July, 2000 that the pair of HAWAI
CHAPPALS recovered from the spot came to be shown
to Pinki, PW-2 when she visited the police station and
identified the same to be that of the appellant. Like
her statement on last seen, the affirmation of Pinki,
PW-2, on this count also lacks credibility in the
absence of corroboration. In terms of her statement,
Pinki, PW-2, had the occasion to see the pair of HAWAI
CHAPPAS, Ex.P-1, firstly on the day of recovery thereof
from the spot and thereafter on 24th July, 2000 at the
police station and she was able to identify the same as
belonging to the appellant on both the occasions. It is
the prosecution case, as reflected from the statement
of Moharrir Malkhana, HC Hari Singh, PW-16, that the
pair of HAWAI CHAPPALS, Ex.P-1, at the time of being
deposited in the Malkhana were not contained in any
parcel nor sealed. However, Pinki, PW-2, would like
one to believe that the HAWAI CHAPPALS, Ex.P-1,were
put into a parcel and sealed at the spot. Her
statement in this regard being contradictory to the
factual position as emerging from the statement of HC
HAWAI CHAPPALS, PW-16, would tend to put a
question mark on her claim that the HAWAI
CHAPPALS, Ex.P-1, were lifted from the spot in her
presence and she was able to identify the same as
belonging to the appellant. The seizure memo, Ex.PW-
1/B shows that the recovery of HAWAI CHAPPALS,
Ex.P-1, was effected in the presence of Jagdish, PW-1,
and SI Suraj Pal, PW-18. Pinki, PW-2, is not an
attesting witness to the seizure memo, Ex.PW-1/B.
According to SI Suraj Pal, PW-18, Pinki, PW-2, was
present at her JHUGGI situated near the spot at the
relevant time when the proceedings, including seizure
of CHAPPALS, Ex.P-1, were carried out. ACP Dharam
Pal Singh, PW-19, who effected the seizure of the
CHAPPALS, Ex.P-1, of course, affirmed that when the
police had reached the spot, Pinki, PW-2, was found
present there, which implies that she would have had
the occasion of having a good look at the pair of
CHAPPALS, Ex.P-1, at the spot before seizure thereof
by the police. As a matter of fact even if, Pinki, PW-2
is found to have had seen the pair of CHAPPALS, Ex.P-
1 lying at the scene of crime that in itself would be of
no avail unless it is established that she was able to
identify there and then on seeing the same. Evidently,
her credibility stands shaken to a great extent in view
of her omission to tell her parents or the police or
anybody else for a week that the CHAPPALS, Ex.P-1,
belonged to the appellant. As far as her identification
of CHAPPALS, Ex.P-1, at the police station on 24 th
July, 2000 is concerned, the same is difficult to accept
as once she had already omitted to identify the same
at the time of seizure thereof at the spot, there was
really no occasion for showing her the same very
CHAPPALS again on 24th July, 2000 at the police
station. Though Pinki, PW-2, states that at the time of
identification of CHAPPALS, Ex.P-1, at the police
station on 24th July, 2000, the same had been mixed
with other pairs of CHAPPALS, there is no
corroboration in this regard from ACP Dharam Pal,
PW-19 and SI Suraj Pal, PW-18. SI Suraj Pal, PW-18,
testified that the pair of CHAPPALS, Ex.P-1, were
taken out of the Malkhana on 24th July, 2000 which
stands clearly contradicted by Moharrir Malkhana, HC
Hari Singh, PW-16. This apart, such an identification
of CHAPPALS, Ex.P-1, as deposed by Pinki, PW-2, is
hard to accept as no proper identification proceedings
in regard thereto was ever got carried out by the
investigating officer. Being not put in a sealed cover
after seizure from the spot, the possibility of tampering
with the pair of CHAPPALS which were actually picked
up from the spot, cannot be ruled out. This is
particularly so in view of the fact that the appellant
and his alleged accomplice were already being treated
as suspects by the police as they had not only been
called to the police station for interrogation on 17 th
July, 2000, they were even got medically examined on
that date. Vide appellant's MLC, Ex.PW-6/A, no mark
of recent external injury on the appellant's body,
including external genitalia was found. Absence of
any injury on external genitalia of the appellant
assumes significance in view of statement of Dr.
Sarvesh Tandon, PW-3, who conducted postmortem
examination on the dead body of Kumari Asha that in
the present case the possibility of the rapist sustaining
injuries on his private parts was more likely. He made
this statement in his cross-examination keeping in
view the nature of injuries noticed by him on private
parts of the deceased during postmortem examination.
15. Until 23rd July, 2000, the investigating officer
appears to have had no evidence of any sort to raise
suspicion against the appellant and his alleged
accomplice of their involvement in kidnapping, rape
and murder of Kumari Asha. Going by the statement
of Pinki, PW-2, it would appear that the appellant and
his alleged accomplice continued to be kept in illegal
detention at the police station by the investigating
officer from 16th July, 2000 to 24th July, 2000 when
her second statement came to be recorded at the
police station wherein she, for the first time, sought to
attribute motive on the part of the appellant and his
alleged accomplice and is also claimed to have
identified the pair of CHAPPALS, Ex.P-1, being that of
the appellant. The medical examination of the
appellant, as noticed earlier, did not yield any
incriminating material suggesting his possible
involvement in the commission of rape and murder of
the deceased. In the given circumstances,
identification of the HAWAI CHAPPAL, Ex.P-1, at police
station on 24th July, 2000 by Pinki, PW-2, was, argued
the learned counsel, nothing but a crude attempt on
the part of investigating officer to create some evidence
in order to falsely implicate the appellant in the case.
On 24th July, 2000, though Pinki, PW-2, was being
accompanied by her father Jagdish, PW-1, at the
police station, he(PW Jagdish) did not make any
mention in his statement of HAWAI CHAPPAL, Ex.P-1,
being identified by Pinki, PW-2. No scientific evidence
to connect the HAWAI CHAPPAL, Ex.P-1, to the
appellant was collected to support the statement of
Pinki, PW-2, that the same actually belonged to the
appellant and none else. In view of the above, one
would find that it was a case of virtually no evidence
and the uncorroborated affirmation of Pinki, PW-2, did
not supply a good basis to find that the HAWAI
CHAPPAL, Ex.P-1, belonged to the appellant. The
learned trial court thus again went wrong in recording
the finding of HAWAI CHAPPAL, Ex.P-1, being that of
the appellant and in treating this as another
incriminating circumstance to hold complicity of the
appellant in the commission of the crimes.
16. On motive, the prosecution had again to fall
back upon the testimony of Pinki, PW-2. She stated
that the appellant had an evil eye on her and had been
making advances in the past which were repelled by
her and on one of the occasions she even slapped him
which had made him infuriated and he in an ireful
manifestation threatened to ruin her family. Notably,
PW-2 came out with these facts only on 24th July,
2000 and not before that. There is absolutely no
corroboration to this part of her statement from her
father Jagdish, PW-1 even though, according to Pinki,
PW-2, she had kept him posted with the appellant
being a source of harassment to her on the said count.
Given the nature of statement of Pinki, PW-2, in the
absence of any corroboration it sounds highly unsafe
to accept her testimony in this regard. Moreover, it
was rightly argued by the learned counsel for the
appellant that even if it be accepted that the appellant
was nursing a grudge, as deposed by Pinki, PW-2, it
was most unlikely that the appellant would have gone
to the extent of kidnapping the five-year-old Asha to
commit rape on her and murder her. Further, even
assuming that the appellant did have a motive to
commit the crimes in question, this fact by itself, in
the absence of any other incriminating circumstance
proving his complicity, as ruled by the Supreme Court
in the case of Girja Shankar Misra (supra), cannot
justify the finding of impugned conviction.
17. The case on hand presents a glaring instance of
a sloppy investigation. This aspect should not have
gone unnoticed by a discerning judicial mind.
Unfortunately, however, this did not happen. We, on
re-appraisal of the testimonies of material witnesses,
particularly that of Pinki, PW-2, find the same falling
far short of proving the charges of kidnapping, rape
and murder, against the appellant, beyond reasonable
doubt. The impugned conviction and sentence are in
the circumstances liable to be reversed and set aside.
The appeal is thus allowed and the judgment of
conviction dated 24.3.2006 and order of sentence
dated 1.4.2006 are set aside. The appellant is
acquitted of the charges under Sections 363, 376 &
302 IPC and directed to be set at liberty forthwith, if
not required to be detained in connection with any
other matter.
(B.N.CHATURVEDI)
JUDGE
(P.K.BHASIN)
September 8, 2008 JUDGE
RS
