Daya Ram vs State
2012 Latest Caselaw 3007 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                    DECIDED ON : May 07, 2012

+                             CRL.A.208/1998

       DAYA RAM                                             ....Petitioner
               Through: None

                                    versus

       STATE                                  ...Respondent.

Through: Ms.Richa Kapoor, APP for the State.

CORAM:

MR. JUSTICE S.RAVINDRA BHAT MR. JUSTICE S.P.GARG

S.P.GARG, J. (OPEN COURT)

1. The present appeal is directed against the judgment dated 20.02.1998 and order on sentence dated 23.02.1998 of learned Additional Sessions Judge by which the appellant was convicted for the offences punishable under Section 302/376 IPC and sentenced to undergo imprisonment for life with a fine of `10,000/- under each of the two counts i.e.376 and 302 IPC.

2. The prosecution alleges that on 16.04.1993 Daily Diary (DD) No.3A (Ex.PW-6/A) was recorded at police station Geeta Colony at 9:20 A.M. on receipt of information that a girl aged 8 years was lying dead at Yamuna Pushta, near Taj Enclave, Geeta Colony. DD No.3A was marked

to ASI Kanchan Lal for investigation. He with Constable Bhushan Kumar reached the spot and found the dead body of a girl in the bushes. He made an endorsement on the Daily Dairy No.3A and sent the rukka for lodging First Information Report under Section 302/302/76 IPC. Investigation was taken over by Inspector Ram Niwas Vashisth (PW-19). He reached the spot and saw that the deceased was wearing red coloured salwar-suit, her salwar was untied and pushed down upto the knee. One green coloured jumper/kurta was tied around her neck. Inspector Ram Niwas Vashisth summoned the crime team. The scene of the incident was photographed. A pair of hawai chappals near the body was seized by memo (Ex.6/A). Efforts to identify the body were in vain. PW-19 conducted inquest proceedings and sent the body for post-mortem. PW- 14 (Dr.L.K.Barua) conducted post-mortem examination of the body on 21.04.1993. He was of the opinion that the death was due to strangulation. The body was cremated as unclaimed.

3. On 27.08.1993 Ram Rattan (PW-4) and Babu Lal (PW-18) went to the police station, Geeta Colony and identified the photographs of the deceased. PW-4 said that his daughter Sampada had married Daya Ram and he had brought his younger daughter Umeda (since dead) from the village 4-5 days earlier to Holi festival on the pretext that she would prepare food etc.for him in the absence of his wife who was in the village. When Daya Ram did not send her back to the village for three/four months, he came to Delhi, on 07.08.1993 and inquired from the accused about Umeda. Daya Ram told him that Umeda was put on a train to go to her village. He did not find Umeda in the village and came to Delhi on 24.08.2003. He came to know from Babu Lal that Daya Ram and Pappu

had left the Jhuggi with children and wife. Ram Rattan suspected Daya Ram and Pappu to be perpetrators of the crime. Inspector Ram Niwas Vashishth (PW-19) recorded their statements and set out to apprehend Daya Ram and Pappu but they were not traceable. On 13.12.1993 Pappu was apprehended at New Delhi Railway Station. He disclosed that Daya Ram was residing in Sangam Vihar with a changed name of Kunwar Pal with his wife with a changed name Sunita. He led the police to House No.D-246, Sangam Vihar, Gali No.5 Daya Ram was apprehended and arrested from there. Pursuant to the disclosure statement, he recovered his underwear and one grey coloured salwar of the deceased from his Jhuggi.

4. During investigation, the Investigating Officer sent the exhibits to Central Forensic Science Laboratory (CFSL) and recorded statements of the witnesses conversant with the facts. After completion of the investigation, a charge-sheet was submitted against the accused for committing the offences mentioned previously. The accused was charged and brought to trial.

5. To substantiate the charges, the prosecution examined nineteen witnesses in all. The statement of the accused was recorded under Section 313 Cr.P.C. and he pleaded false implication.

6. After appreciating the evidence and considering rival contentions of the parties, the Trial Court by the impugned judgment convicted the accused for committing offences punishable under Sections 376/302 IPC. Aggrieved by the said judgment, the appellant has preferred the present appeal.

7. Learned counsel for the appellant challenged the findings of the Trial Court and urged that it did not appreciate the evidence in its true

and proper perspective and fell into grave error in relying upon the testimonies of PW-1 (Sampda), PW-3(Pappu), PW-4 (Ram Rattan) and PW-18( Babu Lal) without ensuring their credibility and truthfulness. The Trial Court ignored the discrepancies and inconsistencies without valid reasons. There was no evidence to infer that the deceased was sexually assaulted by the accused. There was inordinate delay in lodging the First Information Report with the police. The accused had no ulterior motive to eliminate the innocent child closely related to him. Sampada, his wife, never suspected him for the crime.

8. Learned APP while supporting the judgment urged that it did not call for any interference. The prosecution categorically established that the accused had brought the child Umeda from the village with him with a promise to send her back after a month. The child did not like to stay with the accused and used to weep. PW-18 (Babu Lal) advised the accused to send her back to the village. On 15.04.1993, at 10:00 P.M. or 10:30 P.M., he saw the accused taking the child with him. He returned to the Jhuggi next day alone and on inquiry he disclosed that he had sent the victim to her village. However, the child never reached the village. The false explanation given by the accused pointed an accusing finger against him. He made extra judicial confession to his wife about the murder of the child. The recovery of his underwear and the deceased's salwar pursuant to his disclosure is a material incriminating circumstance. The accused did not explain what forced him to live under an assumed reality.

9. We have considered the submissions of both the parties and examined the Trial Court record.

10. Homicidal death of Umeda is not under challenge. Her body was found in the bushes at Jamuna Pushta on 16.04.1993. PW-14 (Dr.L.K.Barua) conducted post-mortem examination of the body and was of the opinion that the death was due to strangulation and the child was subjected to sexual assault. Undoubtedly, it is a case of homicide-cum- sexual assault.

11. The prosecution alleged that pursuant to the disclosure statement (Ex.PW-3/A) after his arrest on 15.12.1993, the accused led the police to his Jhuggi in Ajit Nagar and recovered the underwear (Ex.P-7/2) and Salwar (Ex.P-7/1) of the deceased. This was taken as an incriminating circumstance against the accused. It is relevant to note that the body of the child was recovered on 16.04.1993 and the alleged recovery was effected on 15.12.1993 i.e. after about eight months of the incident. It is unbelievable that the accused would bring underwear and salwar of insignificant value after the crime to his Jhuggi and would conceal it for long eight months. The accused was arrested on 14th December, 1993 during day time but no attempt was made to recover the articles from the Jhuggi that day itself. No independent public witness from the locality was associated at the time of recovery. PW-4 (Ram Rattan), deceased's father, a witness to the seizure memo (Ex.PW7/B) gave an inconsistent version and testified that the accused recovered Umeda's clothes from the house of Babu Lal in his presence. PW-18 (Babu Lal), categorically denied the recovery of any articles in his presence. Apparently, the prosecution failed to produce cogent and clinching evidence to establish recovery of incriminating articles at the instance of the accused.

12. The clothes were sent to Central Forensic Science Laboratory and its report was collected and placed on record. It reveals that semen could not be deducted on the salwar. Presence of semen on the underwear was indicated but its group could not be ascertained. Hence mere recovery (if any) was of no significance.

13. The Trial Court was of the view that the accused made an extra judicial confession to his wife PW-1(Sampda) and told her that he had killed her sister Umeda. PW-1 (Sampda) for the first time in her deposition claimed that the accused confessed killing her sister Umeda. When she asked why he did not inform her father about Umeda's killing, he replied that he could not tell that to her father. Thereafter, the accused was caught hold of by the police. In the cross-examination, she stated that the accused told about her sister's killing after two months of her return to him and at the time her father was not with them. She did not specify the date and place where the extra judicial confession was made. It is not clear that the extra judicial confession was made before the registration of the First Information Report. She did not explain the circumstances which prompted the accused to make an extra judicial confession to her. The body of the deceased was recovered on 16.04.1993. She had resided with the accused till his arrest on 14.12.1993. Her father had suspected Pappu and Daya Ram as perpetrators of the crime after identifying the photographs of the child. From the examination-in-chief, it cannot be inferred that the alleged confession was made before the arrest of the accused. However, from the cross-examination, it is apparent that the accused made the alleged confession after about two months of her return to Delhi from the village. There is no certainty when she returned from

the village. No other witness including Ram Rattan, Babu Lal and Pappu testified about any such confession made by the accused to his wife. Had there been a confession, she must have informed her father and the police about the complicity of the accused and there was no occasion for her father to suspect Pappu as well in the crime. She did not lodge any complaint with the police for the murder of her sister after the alleged confession. These circumstances thow serious doubts that any confession was made by the accused. Extra judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is perpetrator of the crime. It must pass the test of credibility. In the instant case, it is not clear that any confession was made and what were the contents of the confession. Extra judicial confession is a weak piece of evidence and it is not safe to convict a person on the confession alone unless corroborated by other evidence. This is a rule of prudence rather than of law.

14. The next circumstance relied upon by the Trial Court is that the deceased was last seen alive with the accused. PW-18 (Babu Lal) claimed that on 15.04.1993 at about 10.00 or 10.30 P.M., the accused had taken the deceased with her. He returned alone the next day and informed that he had left the deceased to her house. The body of the deceased was found on 16.04.1993.

15. Indisputably, the deceased was brought by the accused to Delhi to cook food for him in the absence of his wife and children, who were left in the village at her parents' house. It was not unusual for the deceased and the accused to be seen together. PW-18 (Babu Lal) in the

examination-in-chief did not give any specific date when the deceased was last seen alive in the company of the accused. He merely stated that after about 15 days of her stay, the accused had taken her at 10.00 or 10.30 P.M. PW-4 (Ram Rattan) deceased's father stated that the accused had brought her daughter after 'Holi' festival but he did not remember the said date. He was confronted with the statement (Ex.PW-4/DA) where 12.03.1991 was mentioned the date when the accused brought the victim to Delhi. Apparently, she was murdered after about one month of her stay in Delhi. The prosecution failed to reconcile PW-18 (Babu Lal)'s statement that the accused had taken the victim with him after her 15 days' stay in Delhi.

16. PW-4 (Ram Rattan) visited Delhi with his daughter Sampda and her children after about three months from the departure of the victim to Delhi. In his testimony, he deposed that he went to the house of Babu Lal, where the accused used to live. He further stated that Babu Lal had told them that the accused had taken Umeda at about 10.00 P.M. after about her 8/10 days stay with him and on the next day the accused told him that he made her to sit in the train to go to her village. Even after coming to know about that, PW-4 (Ram Rattan) did not lodge any report with the police about her disappearance. He left her daughter Sampda at the house of Babu Lal and went back to his village. He searched for Umeda but did not find her in the village. Again, neither did he lodge any report with the police nor did he suspect the accused for her disappearance. He visited Delhi after about a month and went to Pappu's house. When he did not find accused and his daughter Sampda there, he lodged the report with the police of PS Geeta Colony. PW-4 (Ram Rattan)

did not explain the inordinate delay in lodging the report. Even after coming to know the alleged false explanation of the accused to PW-18 (Babu Lal), he waited for a month in the village. He suspected Pappu and went with the police for search at Kanpur. PW-3 (Pappu) was examined and he stated that accused's father-in-law had suspected him and lodged report against him. He further revealed in the cross-examination that he was detained by the police and was arrested in this case.

17. PW-19 (Insp.Ram Niwas Vashisth) deposed that on 27.08.1993, Ram Rattan and Babu Lal came to the police station and Ram Rattan disclosed that he had come to Delhi on 07.08.1993 and had left his elder daughter at the jhuggi of the accused. He further informed him that on enquiry from the accused about the whereabouts of the victim, he told him that he had helped Umeda board a train to her village. He did not depose that PW-18 Babu Lal had disclosed to seeing the accused taking the victim with him at 10.00 or 10.30 P.M. on 15.04.1993. PW-18 (Babu Lal) denied that deceased's clothes were recovered at the instance of the accused from his jhuggi. His statement under Section 161 Cr.P.C. (Ex.PW-18/A) was recorded on 15.12.1993 after a considerable delay. The prosecution failed to explain the inordinate delay in recording his statement despite his availability in Delhi. PW-1 (Sampda) never suspected her husband. Considering all these surrounding circumstances, no reliance can be placed upon PW-18's testimony that the accused was seen with the deceased on 15.04.1993 at 10.00 P.M. and he returned the next day alone.

18. Materials on record show that the accused had started residing in his jhuggi at Ajit Nagar with the changed name of Kawarpal.

He also gave fictitious name to his wife PW-1 (Sampda) as Sunita. PW-1 did not give reason what forced them to live under fictitious names. She herself did not object to her new identity as Sunita. She did not inform her parents about change of their names. PW-18 (Babu Lal) in whose jhuggi the accused used to reside earlier did not state that the accused and his wife had stayed at Ajit Nagar under changed names. PW-3 (Pappu) and PW-18 (Babu Lal) were aware about the changed address of the accused. It cannot be said with certainty that the motive was to avoid detection. PW-1 (Sampda) categorically stated that she had no complaint against her husband regarding Umeda. She never observed any unusual behavior during her stay with the accused after her sister's disappearance. There was no reason for the accused and his wife to live under false names.

19. Conduct of PW-4 (Ram Rattan) deceased's father is unnatural. Even when the accused did not send Umeda back to the village after about a month, he did not contact him or the victim to find out why Umeda was not sent to the village. He himself did not return to Delhi to take her back to the village. PW-1 (Sampda) with her children continued to live with her parents in the village for about three months and visited Delhi thereafter. Again after coming to know in Delhi that the accused had sent her in a train to the village, PW-4 (Ram Rattan) did not lodge any report with the police and kept quiet for a one month. Only when he returned to Delhi in August, 2003, did he lodge a report with the police and suspect Pappu to be the culprit. Pappu was arrested and detained in the police station. When he took the police to the house of the accused at Ajit Nagar, he was released. PW-4 (Ram Rattan) did not explain what forced him to suspect Pappu for the crime. Conduct of PW-1 (Sampda) is

equally strange. She willingly lived with the accused with changed name. She did not remain in touch with her father to ascertain the whereabouts of her missing sister. She did not inform her father about her changed address. She never suspected the accused for the crime.

20. It is on record that the accused used to attend to his duties in the morning and return in the evening. Umeda used to remain alone in the house in his absence. PW-18 (Babu Lal) did not state if Umeda ever complained to him about the conduct and behavior of the accused. It is unbelievable that suddenly on 15.04.1993 at 10.00 or 10.15 P.M. the accused alone would take her for committing rape and murder. The accused did not abscond after the alleged incident and continued to live in the same place.

21. There was no evidence to infer that the accused was responsible for sexual assault on the victim. He was not seen with the victim near the place of occurrence. CFSL report did not support the prosecution and semen of the accused was not detected on the clothes of the victim. Possibility of sexual assault and murder by a person other than the accused cannot be ruled out as he used to go to his work and the deceased used to remain alone in the house.

22. In the light of above discussion, we are of the view that there was no cogent evidence on record to base the conviction of the accused. The accused cannot be convicted on suspicion alone. Various factors highlighted above would go to show that the prosecution has failed to establish the accusations against the appellant. Therefore, the appeal deserved to be allowed, which we direct. The appellant be set at liberty forthwith unless he is required in connection with any other case. The

surety and bonds furnished in the case stand cancelled. The Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE

(S.RAVINDRA BHAT) JUDGE MAY 07, 2012 sa/tr