Surender Mandal vs The State (Nct Delhi)
2013 Latest Caselaw 673 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : February 07, 2013
                                    DECIDED ON : February 12, 2013

+      CRL.A. 150/2007

       SURENDER MANDAL                    ..... Appellant
                   Through : Mr.Sumit Verma, Advocate.


                      versus

       THE STATE (NCT DELHI)                     ..... Respondent
                     Through : Mr.M.N.Dudeja, APP for the State.


+      CRL.A. 172/2007 & Crl.M.B.No.1451/2008

       DHANI RAM                                ..... Appellant
                               Through : Mr.Sumit Verma, Advocate

                      versus


       THE STATE                                .... Respondent
                               Through : Mr.M.N.Dudeja, APP for the State.

+      CRL.A. 42/2007

       MAHENDER MANDAL                  ..... Appellant
                  Through : Mr.Bhupesh Narula with
                         Mr.A.V.Gupta, Advocates.

                               versus

       THE STATE                                     ..... Respondent
                               Through : Mr.M.N.Dudeja, APP for the State.

Crl.A.Nos.150/07, 172/07 & 42/07                             Page 1 of 13
        CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellants Surender Mandal (A-1), Dhani Ram (A-2),

and Mahender Mandal (A-3) impugn their conviction in Sessions Case

No.376/2006 arising out of FIR No.180/2003 registered at Police Station

Keshav Puram by which they were convicted for committing offences

punishable under Section 376 (2) (g) IPC and sentenced to undergo RI for

ten years with fine `1,000/- each.

2. Allegations against the accused were that on 28.05.2003 at

about 11:00 P.M. they all in furtherance of common intention committed

gang rape with 'X' (assumed name) aged three years in the house of

Shabnam, at Gali Sainiwali Ram Pura, Delhi. Daily Dairy (DD No.27-A)

was recorded at 12:45 A.M. on the night intervening 28/29.05.2003 at

Police Station Keshav Puram on getting information that a girl aged two

and a half years was raped and the culprit has been apprehended. The

investigation was assigned to SI Ram Chander who with Constable

Dharmavir reached the spot. In her statement, Shabnam disclosed that on

28.05.2003 when she went to her house after selling vegetables at about

11:00 P.M., she saw that A-2 was committing rape upon her daughter 'X'.

A-1 was present inside the room waiting for his turn and was pressing her

daughter's mouth. A-3 was standing outside the room to guard the spot.

On seeing her, they started fleeing the spot. 'X' was bleeding from her

private parts. She gave beatings to the accused. On hearing her noise,

many people gathered and caught hold them. During the course of

investigating, 'X' was medically examined. A-1 to A-3 were arrested.

Statements of the witnesses conversant with the facts were recorded.

Exhibits were sent to the Central Forensic Scientific Laboratory, Kolkota

(CFSL). After completion of investigation, a charge-sheet was submitted

against A-1 to A-3. They were duly charged and brought to trial. The

prosecution examined eight witnesses. Statements of the accused were

recorded under Section 313 Cr.P.C. and they pleaded false implication.

On appreciating the evidence and considering the rival contentions of the

parties, by the impugned judgment, the Trial Court held all the accused

responsible for committing rape upon the prosecutrix 'X'. Aggrieved by

the said orders the appellants have preferred the present appeals.

3. Counsel for the accused urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and fell into

grave error in relying upon the sole testimony of PW-1 (Shabnam)

without ensuring her credibility. The prosecution case was based upon

circumstantial evidence and there were major discrepancies and lapses in

investigation which were conveniently ignored. The prosecution failed to

establish the exact spot of occurrence and perpetrators of the crime.

Adverse inference is to be drawn against the prosecution for not

examining the complainant's children who were present in the room

where the prosecutrix was ravished. The CFSL report does not connect

the accused with the crime.

4. Learned Additional Public Prosecutor supported the

judgment and urged that it does not call for interference. It is based upon

the cogent and reliable testimony of PW-1 (Shabnam) who had no enmity

with the accused to falsely implicate them. Minor discrepancies or

improvements which do not go to the root of the case are not fatal. The

accused cannot take advantage of the defective investigation or lapses of

the investigating officer. The occurrence had taken place at 11:00 P.M.

and the incident was reported to the police without any delay. When the

accused persons were medically examined, they were having smell of

alcohol. Two of them had injuries on their lips. They were last seen with

the prosecutrix.

5. I have considered the submissions of the parties and have

examined the record. At the outset, it may be mentioned that counsel for

the appellant has fairly admitted that incident had taken place with the

child and she was physically assaulted. He, however, urged that the

prosecution was unable to establish that she was sexually assaulted inside

the house of the complainant and that the accused persons were the

culprits. The prosecutrix 'X' was a child of three years. When PW-1 went

to her house, she found her bleeding from private parts. MLC was

prepared at Babu Jagjivan Ram Memorial Hospital on 29.05.2003 at 01:10

A.M. PW-7 (Dr.A.Kesari) proved MLC (Ex.PW-7/A) prepared by

Dr.Purdhut Kumar, Dr Rita Jindal and Dr.Taseem. Their signatures were

identified as the said doctors were not available. In the MLC (PW-7/A),

on local examination it was noticed that 'X' was bleeding from the vagina

and hymen was not intact. She was referred to LNJP hospital for repair of

complete perineal tear. Undoubtedly, it was a case of assault upon the

child. Undisputedly, the prosecution case is based upon circumstantial

evidence. It is an admitted position that prosecutrix 'X''s statement was

not recorded under Section 161 Cr.P.C. or 164 Cr.P.C. The prosecution

case against the accused after completion of the investigation was that

PW-1 (Shabnam) witnessed A-2 committing rape upon 'X'. She also saw

A-1 inside the room waiting for his turn and pressing 'X's mouth. The

case was registered on the statement of PW-1 (Shabnam) and she in her

statement (Ex.PW-1/A) categorically named the accused persons and

attributed specific role to them. However, she did not support the version

recorded in her statement (Ex.PW-1/A). In her statement before the court

as PW-1, she admitted that she had not seen any of the accused

committing 'wrong act' with her daughter. Learned Additional Public

Prosecutor, after seeking court's permission, cross-examined her. She

denied that she had seen A-2 committing rape on her daughter or A-1 was

pressing her daughter's mouth. She denied that she had stated so in her

statement (Ex.PW-1/A) to the police. Apparently, Shabnam was not an

eye-witness to the incident and being X's mother, she had no good

reasons to resile from her previous statement (Ex.PW-1/A).

6. PW-1 (Shabnam) introduced a new version in her statement

before the court which was at variance with her statement (Ex.PW-1/A).

She deposed that when she went to her house after closing vegetable shop

at 10:45 P.M., she saw that the lights in the house had been put off. Her

two sons were lying asleep. Her daughter 'X' was unconscious and her

tongue was protruding out. When she entered the house, she found A-3

standing outside her house. A-1 and A-2 were coming out of the house

that time. She raised alarm and people from the locality gathered. She

further deposed that 'X' pointed towards A-2 who had committed the 'act'

with her and A-1 who had pressed her throat. She took her daughter to a

hospital at Jahangir Puri. In the cross-examination, she was confronted

with her statement (Ex.PW-1/A) where she had not stated that her

daughter had pointed towards A-1 and A-2 and told her the role played by

them in the incident. She admitted that she did not know the name of the

accused prior to the incident. A-1 and A-2 used to reside in her

neighbourhood and A-3 used to visit them.

7. The prosecution has not given any reasons for the conflict

between the version stated in Ex.PW-1/A at the first instance and the one

given in the court by PW-1 (Shabnam), the star witness. PW-1 (Shabnam)

did not see any of the accused committing rape upon 'X' or outraging her

modesty. None of them was found in the room in an obscene position

with 'X'. None of them was naked or had put off his undergarments. 'X'

was unconscious when PW-1 went to the house. At the time of her

examination on 29.05.2003 at about 01:10 A.M. in the hospital, she was

semi conscious/disoriented. It was unbelievable that she could point out

towards A-1 and A-2 and apprise her specific role of A-1 and A-2, when

she went to the room. PW-5 (SI Ram Chander) went to the spot and took

'X' with her mother Shabnam to BJRM hospital. He did not depose if

PW-1 (Shabnam) had told him the role played by each accused while

sexually assaulting 'X'. Admittedly, PW-5 did not record her statement

under Section 161 Cr.P.C. Wavering testimony of sole witness is

inconsistent with her initial version in Ex.PW-1/A and has not been

corroborated at all. According to PW-1 (Shabnam) when she raised

alarm, many public persons gathered there. However, the Investigating

Officer did not record statement of any such person. PW-5 (SI Ram

Chander) in the cross-examination admitted that when he reached the spot

no body met him as everyone was lying asleep. Number of tenants were

residing in the neighbourhood of the complainant but no inquiry was

made from them. Contradictory and inconsistent version has been given

as to how and when the accused persons were arrested and how and when

their involvement in the incident surfaced. Shabnam in her statement

(Ex.PW-1/A) told that the assailants were apprehended at the spot and

beaten. The public persons who gathered at the spot caught hold them and

information was given to the police. However, PW-5, who went to the

spot, on receipt of DD No.27A at about 11:00 P.M. categorically admitted

that none of the accused was present at the spot. He rather stated that

SHO brought all the three accused in the hospital. Statement of SHO was

not recorded to ascertain when and from where the accused were arrested.

In the cross-examination, PW-5 (SI Ram Chander) stated that the SHO

was not aware about the involvement of the accused and he could not say

how he had apprehended the accused.

8. Admittedly, the complainant had three children besides the

prosecutrix 'X' and they were elder to her. The prosecutrix alleged that

her two sons were sleeping in the room when she went there. The

prosecution, however, did not examine them under Section 161 Cr.P.C.

PW-8 (SI Veena Sharma) who took over the investigation admitted in the

cross-examination that she had not recorded the statement of other

children of the complainant. Suggestion was put to her that the age of the

children was 12/13 years but she was unable to admit or deny. It is

unbelievable that the children elder to the prosecutrix continued to sleep

despite she being subjected to violence by the assailants. PW-3 (Sanjay

Kumar), landlord, who allegedly went to the spot, did not support the

prosecution and stated that he did not know anything about Shabnam and

the accused. He denied the contents of the statement marked (PW-3/A)

recorded by the police.

9. The investigation is highly defective and faulty. Exhibits

were sent to CFSL, Kolkota. However, the Investigating Officer did not

collect Serological report during trial. This Court vide order dated

11.01.2011 directed Additional Public Prosecutor to obtain instructions

from Investigating Officer as to whether the said report was collected

from CFSL and if not, the reasons thereof. Vide order dated 17.01.2011 it

was recorded that the said report was not obtained from CFSL. Directions

were given to file on record the report with an affidavit of the

Investigating Officer explaining the circumstances in which the report was

not collected. On 15.02.2011 an affidavit was filed along with the report

dated 30.12.2004 from CFSL, Kolkota. Even that report is not helpful to

the prosecution as only on Ex.9 (i.e.Underwear) human blood of 'AB'

group was detected. In Ex.4 (blood sample) and Ex.7 (blood sample)

human blood of 'B' group was detected. Ex.1/A (Chadder cutting) had

human blood of 'A'. No DNA test was conducted in this case.

10. Mere presence of the accused near the spot is not enough to

establish their guilt. Admittedly, A-1 and A-2 were tenants in the

adjoining room of the complainant and A-3 used to visit them. They did

not stop her from entering the room. The complainant did not depose that

she confronted them at the spot. She admitted in the cross-examination

that she had no talk with A-3 and did not ask as to why he was standing

outside her house. The accused did not abscond after the occurrence. No

injuries were found on their private organs in the MLC. The doctors who

prepared the MLC (Ex.PW-7/A) were not examined as they were not

traceable. PW-7 (Dr.A.Kesari) identified their hand-writing and

signatures. In the examination-in-chief he was unable to give definite

opinion if sexual intercourse took place with the victim. PW-1 (Shabnam)

did not depose if any 'chaddar' was seized. No injuries on the neck of the

prosecutrix was detected in the MLC to corroborate the complainant's

version that A-1 had pressed her neck. DD No.27A was registered at

12:45 P.M. on getting information from the PCR. Statement of PCR

official was not recorded. Complainant did not lodge any information

with the police. The delay in lodging the FIR at 03:00 A.M. has remained

unexplained.

11. Considering all the facts and circumstances, I am of the

considered view that the prosecution was unable to establish the guilt of

the accused persons beyond reasonable doubt. The prosecution was

required to satisfy three tests when its case rested upon circumstantial

evidence:-

(a) The circumstances, from which an inference of guilty is

sought to be drawn, must be cogently and firmly established.

(b) Those circumstances should be of a definite tendency

unerringly pointing towards guilt of the accused.

(c) The circumstances, taken cumulatively, should form a chain

so complete that there is no escape from the conclusion that within

all human probability the crime was committed by the accused and

none else. The circumstantial evidence in order to sustain

conviction must be complete and incapable of explanation of any

other hypotheses than that of the guilt of the accused. The

circumstantial evidence should not only be consistent with the guilt

of the accused but should be inconsistent with his innocence.

12. In the light of the above discussion it is apparent that the

prosecution has failed to establish incriminating circumstances to connect

the accused with the commission of offence beyond reasonable doubt.

When two incredible version confront the court, the court has to give

benefit of doubt to the accused and it is not safe to sustain the conviction.

Mere suspension is not enough to take place of proof.

13. The impugned judgment and conviction cannot be sustained

and is set aside. The appeals filed by the appellants are allowed. The

appellants be released immediately if not required to be detained in any

other case. It is relevant to note that as per nominal roll on record, the

appellants have already undergone the sentence awarded to them.

Pending application stands disposed of.

14. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE February 12, 2013 sa