The State vs Shailender Kumar Mishra
2010 Latest Caselaw 5680 Del

*                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                Crl.L.P No.440/2010


%                            Date of Decision: 14.12.2010

The State                                                   .... Appellant
                          Through Mr.Vikas Pahwa, Additional Standing
                                  Counsel


                                    Versus

Shailender Kumar Mishra                                     .... Respondent

                          Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

1.        Whether reporters of Local papers may              YES
          be allowed to see the judgment?
2.        To be referred to the reporter or not?              NO
3.        Whether the judgment should be                      NO
          reported in the Digest?

ANIL KUMAR, J.

* Crl. M.A. 17987/2010

This is an application seeking exemption from filing the certified

copies of the annexures.

Allowed subject to just exceptions.

Crl. M.A. No. 17986/2010

This is an application by the petitioner/applicant seeking

condonation of delay of 170 days in filing the petition seeking leave to

appeal.

The applicant has contended that the judgment was passed on

10th March, 2010, acquitting the respondent and its certified copy was

applied on 24th April, 2010 which was delivered to the applicant on 3rd

May, 2010. In this application, the applicant has given the details of

the officials, who considered and dealt with the file of the case and the

various steps which were taken by the applicant to decide filing of the

present petition seeking leave to appeal.

In the circumstances, it is contended that the delay in filing the

petition for leave to appeal is not deliberate and is on account of

procedural aspect and was unavoidable.

The applicant has also relied on Collector of Land Acquisition Vs.

Katiji 1987 (2) SCC 107 holding that refusal to condone the delay can

result in a meritorious matter being thrown out at the very threshold

and may cause injustice. Reliance has also been placed on State of

Nagaland Vs. Lipok Ao 2005 (3) SCC 752 holding that when the appeals

are filed by the State Machinery, the sufficient cause should be

considered with pragmatism in a justice oriented approach rather than

a technical defection of sufficient cause seeking explanation for every

day's delay. It was held that due consideration should be given to the

procedural red tape in the decision making process of the Government

and such applicants are entitled for some latitude, if permissible. The

Supreme Court had also held that the State Government is the

impersonal machinery working through its officers or servants and it

cannot be put on the same footing as an individual.

Considering the facts and circumstances and law laid down by

the Supreme Court, the appellant/applicant has been able to make out

a sufficient cause for condonation of 170 days delay in filing the petition

for leave to appeal. Therefore, the application for condonation of 170

days delay is allowed and delay is condoned in filing the petition for

leave to appeal.

Crl. L.P.No. 440/2010

This is a petition by the State seeking leave to appeal against the

judgment dated 10th March, 2010 passed in Session's Case No.

171/2008 arising out of FIR No. 254/2008, PS Hauz Khas under

Section 376 of IPC acquitting the respondent of the offence under

Section 376 of Indian Penal Code giving him the benefit of doubt.

The case of the prosecution against the respondent, Shailender

Kumar Mishra, was that on 3rd July 2008 the respondent took the five

months old daughter of his neighbour, namely, Anjali on the pretext

that he wanted to play with her in his TCR DL1354. After he had taken

the five months old girl child, her mother had heard her crying and

when she rushed there she found her daughter in the lap of the

respondent and bleeding from her private part. On the complaint of the

mother, the girl was medically examined, vide MLC No. 54934/08 and

the hymen of the five months old girl child was found ruptured and

therefore, a case under Section 376 of IPC was registered against the

respondent and his TSR was seized. The vaginal swab and the blood

samples of the girl were taken and the respondent/accused was also

taken for medical examination and his underwear, pant and shirt were

taken into possession by the police. After investigation and complying

with the requirements, contemplated under Section 207 of the Crl.

Procedure Code, charge was framed against the respondent under

Section 376 of IPC to which he pleaded not guilty and claimed trial.

During the trial, prosecution examined 17 witnesses and the statement

of the respondent under Section 313 Cr. P.C. was also recorded. The

respondent also examined two witnesses in his defence.

The Trial Court considered the testimony of the mother of the

child Ms. Puneeta Chaudhary, PW-1 and other witnesses PW-2 and PW-

5 and inferred that none of the witnesses had deposed that they had

seen accused committing rape of the five months old girl child. Reliance

was also placed on the FSL report, which did not show any sign of

injury on the parts of the body of accused or girl child. According to the

Trial, Court, direct or circumstantial evidence including the medical

evidence does not prove conclusively the guilt of the accused. The Trial

Court observed that to constitute rape, it must be proved that some

part of the male organ of the accused should have gone into the girl's

genital, no matter how little and the only thing to be ascertained is

whether the private part of the male accused entered into the private

part of the girl or not. The Trial Court also noticed that it is not

essential that the hymen should be ruptured provided it is established

that there was penetration even though partial. The Trial Court also

relied on the fact that seminal emission is not necessary to establish

rape and what is necessary is that there must be penetration.

The Trial Court also noticed that the accused used to take the girl

child from her mother often with a view to play with her. However,

neither the mother nor the witnesses PW-2 & PW-5, namely,

Shakuntala Devi and Vishakha Devi deposed that they had seen

accused committing rape or inserting his male organ in the female

genital of the minor girl. The mother of the girl child who is alleged to

have been raped rather denied that she had stated to the Police that

when she reached at the TSR, she saw the accused/respondent

committing rape on her daughter or that she was sitting on the private

part of the accused. The mother of the victim rather deposed that it

may be possible that the girl had fallen down from the lap of the

respondent.

Similarly, PW-2 and PW-5's statements were considered and from

them it could not be inferred that the accused had raped the minor girl.

From the medical report, it was inferred that blood group on the

underwear of the accused/respondent could not be ascertained nor

could it be matched with the blood of the minor girl. The testimony of

the defence witnesses was also considered who had deposed

categorically that the respondent had not raped the girl child. They

rather cogently deposed that he used to play with the girl everyday and

that they could not rule out the possibility that the girl might have

fallen down from the lap of the accused and sustained injury. Even PW-

4 Dr. B.B. Das, Sr. Gynecologist, AIIMS had deposed that the rupture of

hymen could be either by male organ or by something else.

Relying on the ratio of Chander Dev Rai vs. State 2009(1) JCC 67

and Dhanpal vs. State by Public Prosecutor, Madras 2009(4) JCC 2914,

it was held that if there is no evidence to show conclusively that the girl

child was raped and if two reasonable or plausible view can be reached,

one that leads to acquittal and the other to conviction, the Court must

rule in favour of the accused.

In the circumstances, the benefit of doubt was given to the

respondent/accused and he has been acquitted of the charges of rape

by judgment dated 10th march, 2010 which is impugned before this

Court and leave to appeal is sought.

This is no more res integra that in reversing the finding of

acquittal the High Court has to keep in view the fact that the

presumption of innocence is still available in favor of the accused which

is rather fortified and strengthened by the order of acquittal passed in

his favor. Even if on fresh scrutiny and reappraisal of the evidence and

perusal of the material on record, if the High Court is of the opinion

that another view is possible or which can be reasonably taken, then

the view which favors the accused should be adopted and the view

taken by the trial Court which had an advantage of looking at the

demeanour of witnesses and observing their conduct in the Court is not

to be substituted by another view which may be reasonably possible in

the opinion of the High Court. Reliance for this can be placed on

2009(1) JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of

Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public

Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v.

State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622

Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu

Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v.

State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the

golden thread which runs through the web of administration of justice

in criminal cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the accused and the

other to his innocence, the view which is favorable to the accused

should be adopted. The paramount consideration of the Court is to

ensure that miscarriage of justice is prevented. A miscarriage of justice

which may arise from acquittal of the guilty is no less than from the

conviction of an innocent.

The High Court has the power to reconsider the whole issue,

reappraise the evidence and come to its own conclusion and findings in

place of the findings recorded by the trial Court, if the findings are

against the evidence or record or unsustainable or perverse. However,

before reversing the finding of acquittal the High Court must consider

each ground on which the order of acquittal is based and should record

its own reasons for not accepting those grounds and not subscribing to

the view of the trial Court that the accused is entitled to acquittal.

This Court has called for the Trial Court Record and has perused

the testimony of the witnesses and the relevant documents and has also

heard the learned Additional public prosecutor in detail. Perusal of the

testimony of PW-1, mother of the girl child reveals that she categorically

stated that she had not told the Police about the respondent raping her

daughter when she reached the TCR after hearing her daughter cry. She

specifically denied the suggestion about the accused raping her

daughter or her daughter sitting on the private part of the accused.

She denied the suggestion that she was deposing falsely to save the

accused. She admitted that the accused was living with his wife and

family and used to often take the little girl for playing with her. She

rather volunteered that her daughter may have fallen down from the lap

of the accused and could have started bleeding on account of the fall.

The statements allegedly signed by her which was recorded by the

police was not admitted by her on the ground that she is illiterate and

that she had only put signatures at the instance of the police officials.

PW-2 Shakuntala Devi is the grandmother, who deposed that she

was present at the Jhuggi after the death of the husband of the mother

of the girl child. She also did not depose anything so as to inculpate the

respondent that he raped the minor girl who was five months old. She

rather denied the suggestion categorically that the respondent had

raped little girl, aged five months.

Dr. B.B. Das, Sr. Gynecologist also opined that rupture of hymen

could either be by insertion of male organ or by something else. PW-5

Smt. Vishakha deposed that she was coming from market and when

she reached there, she found the mother and grandmother of the child

present and the girl bleeding from her private part. She, however, did

not depose that she had seen the accused raping the little girl aged five

months. In the cross-examination, she rather deposed that she had not

heard from anyone that the accused has committed any wrong act with

the girl. She denied that she has been won over by the accused to save

him.

Dr. Sudipta Ranjan Singh, PW-6 had medically examined the

respondent and had given an opinion about the intake of Alcohol by

him. Another witness Sh. Naresh Kumar, Senior Scientific Assistant

(Biology), FSL, has deposed that the blood semen and other biological

clue material were not detected in the auto of the accused. The learned

additional public prosecutor, in the facts and circumstances, is unable

to show any cogent or reliable evidence on the basis of which it can be

inferred that the accused had tried or penetrated his male organ in the

female genital of the girl child. From the evidence it also cannot be

inferred that the respondent/accused had raped the five months old girl

child. Though the girl child was bleeding from her private part, however

neither the blood nor the semen nor any other biological thing was

detected from the TCR in which the respondent was playing with the

girl child and had allegedly raped her. Even the blood spot on the

underwear of the accused could not be ascertained to be of which group

and as to whether it matched with the blood of the girl child.

The learned additional public prosecutor has emphasized that

since there was a blood spot on the underwear of the respondent, it is

sufficient to infer that the respondent had raped the little girl. This

contention of the learned counsel cannot be accepted. The burden to

prove that the child girl was raped was on the respondent. Since, the

mother, grandmother and another lady, who were present there have

categorically denied that the girl child was raped by the respondent,

merely on the basis of a blood spot on the underwear of the respondent,

which blood group did not match with the blood of the prosecutrix, the

girl child, the inferences as has been drawn by the learned public

prosecutor cannot be drawn. The burden to prove that the accused had

raped the girl child was on the prosecution. Suspicion, however, strong

cannot take the place of the proof beyond reasonable doubt. Neither is

there any medical evidence nor any oral evidence that the girl child was

raped by the accused/respondent. A blood spot on the under garment

of the respondent which could not be matched with the blood of the girl

child is not sufficient to prove the allegations made against the

respondent.

Though, this Court after appreciating the entire evidence and

documents, if reaches another plausible conclusion different from the

conclusion reached at by the Trial Court, however, while granting leave

to appeal, this Court will not differ from those inferences and will not

substitute its inferences with the inferences of the Trial Court. In any

case, on perusal of the evidence and the documents, even this Court is

of the view that the prosecution has failed to establish that the

respondent had raped the five months old girl child, named, Anjali.

The learned counsel for the State Mr. Vikas Pahwa has then

contended that if the respondent has not committed the rape as there is

no evidence, he is liable to be convicted under Section 353 of the IPC.

This argument of the learned counsel also cannot be accepted as there

is no evidence on the basis of which the charge under Section 352 of

IPC can be made out against the respondent.

It has not been established that the blood on the underwear of

the respondent was that of the five months old girl child, named, Anjali.

From the evidence on record and the categorical deposition by the

mother and grandmother of the girl child even the case under Section

353 of the IPC is not made out against the respondent.

In the circumstances, the learned additional prosecutor has not

been able to make out any ground showing that the inferences drawn

by the Trial Court are not based on evidence or are contrary to evidence

and the inferences have been arrived at by ignoring the material

evidence.

In the circumstances, it has not been established that the

findings of the Trial Court are unsustainable or perverse in any manner

so as to entail any interference by this Court.

In the circumstances, the petition for leave to appeal is without

any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

S.L.BHAYANA, J.

DECEMBER14, 2010 'rs'