Delhi High Court

Bindadin vs State on 6 May, 2013

Author: Sanjiv Khanna

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CRIMINAL APPEAL NO. 359/1998

                               Reserved on:      18th April, 2013
%                          Date of Decision:     6th May, 2013


BINDADIN                                         ..... Appellant
                    Through:   Mr.Vishal Sehijpal, Adv.

                               Versus

STATE                                            ..... Respondent

                    Through:    Mr. Sanjay Lao, APP for the State.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J:

1. The appellant Bindadin challenges the correctness of the

judgment dated 25.5.1998 in Sessions case No.17/96 arising out of FIR

No.47/93 registered at Police Station Anand Vihar whereby he has

been convicted under Section 302/376 Indian Penal Code, 1860 (IPC).

Vide order on sentence dated 26.05.1998, the appellant has been

sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-,

in default he is to undergo further rigorous imprisonment for six

months under Section 302 IPC and to undergo rigorous imprisonment

of ten years and a fine of Rs.5,000/- and in default to further undergo

rigorous imprisonment for another three months under Section 376

IPC. Both the substantive sentences shall run concurrently but the

sentences in default shall run one after the other after the expiry of the

period of substantial sentences.

2. The allegations against the appellant/accused are that on

13.2.1993 at House No.33, Dayanand Vihar, Delhi, he committed rape

and murder of „X‟(assumed name), aged about 19 years. The

prosecution examined as many as 21 witnesses to substantiate the

charges. In his statement under Section 313 Cr.P.C., the appellant

pleaded false implication. He, however, did not prefer to lead evidence

in defence. On appreciating the evidence and considering the rival

submissions of the parties, learned Trial Court vide impugned

judgment held that appellant is the perpetrator of the crime and

sentenced him. Being aggrieved, the present appeal has been

preferred.

3. Learned counsel for the appellant submitted that the Trial Court

did not appreciate the evidence in its true and proper perspective and

fell into grave error by relying upon the testimonies of Shanti (PW-1)

and Asha (PW-2), who were interested witnesses. There was no direct

evidence against the appellant and the prosecution case is entirely

based on circumstantial evidence. The Trial Court overlooked the fact

that the appellant had already left the job as Chowkidar of the said

house before the incident and, therefore, there was no possibility that

the appellant could be involved in the crime. Moreover, prosecution

did not establish that the appellant was present in the house. The

complainant-Sharwan Kumar (PW-4) himself was a primary suspect

and being affluent and well off, he was instrumental in the arrest and

implication of the appellant. Further, the incident had occurred in the

house of the complainant (PW-4). There was no evidence that the

victim was seen going in the appellant‟s room any time. No

independent witness from the public was produced. Vital

discrepancies and contradictions in the testimonies of the prosecution

witnesses regarding the manner in which the appellant was arrested

and clothes were recovered from his room were ignored. Semen spots

were not found on the victim‟s clothes.

4. We have considered the submissions made by the learned

counsel for the appellant and Additional Public Prosecutor for the State

and have carefully examined the records.

5. At this stage, it would be relevant to notice the five golden

principles, which have to be kept in mind while examining cases of

circumstantial evidence as elucidated by the Supreme Court in Sunder

@ Sundarajan vs. State by Inspector of Police, (2013) 2 Scale 204.

These are as under:-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra : 1973CriLJ1783 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all

human probability the act must have been done by the accused.

These five principles, if we may say so, are the Panchsheel of

the proof of a case based on circumstantial evidence. Each and every

incriminating fact or circumstance must be clearly established by

reliable and clinching evidence. The circumstances so proved must

cumulatively form a chain of events from which the only irresistible

conclusion, which can be drawn is that the accused is guilty and no

other hypothesis against the guilt is possible. Other possibilities will

result in acquittal by giving benefit of doubt. In the aforesaid decision

the Supreme Court cautioned that in a case where prosecution relies

upon circumstantial evidence there is always a danger that conjecture

or suspicion may take the place of legal proof. Therefore, while

examining various circumstances in the chain of evidence, the Court

should be satisfied that the chain of event is complete as to rule out

reasonable likelihood of the innocence of the accused. When an

important link is missing or is unreliable, the chain of circumstances

may get snapped resulting in benefit of the accused. Suspicion should

not take place of legal proof and the difference between „may be true‟

and „must be true‟ should be kept in mind as the same divides

conjectures from sure conclusions.

6. The prosecution version is that DD No.4A (Ex.PW16/A) was

recorded at 9.45 p.m. on 14th February, 1993 at Police Station Anand

Vihar by Head Constable Sarju Singh (PW-16) to the effect that one

Sharwan Kumar had informed on telephone that his Chowkidar was

missing and his room was locked from outside and on the cot inside the

room a lady was lying. The said DD was marked to SI Vijay Pal

Singh (PW-20), who along with Constable Subhash Chand (PW-5)

went to the spot. On the way, Inspector Narender Kumar Verma, SHO

(PW-21) along with other staff met them near Village Karkardooma.

At the spot they met Sharwan Kumar (PW-4), who took them to the room

on the first floor of House No.33, Dayanand Vihar. The lock outside the

room was broken and a dead body of a girl aged about 18-19 years having

strangulation marks on the neck was found lying on the cot. Inspector

Narender Kumar Verma (PW-21), the Investigating Officer made an

endorsement and the FIR No.47/1993 was registered. The appellant was

arrested on 19th September, 1993 from Shahdara Railway Station

and his disclosure statement (Ex.PW14/A) was recorded. Upon

completion of investigation, appellant Bindadin was charge-sheeted

and brought to trial.

7. There is ample evidence and material to show that appellant

Bindadin was working as personal Chowkidar of Sharwan Kumar

(PW-4) at the house in question i.e. 33, Dayanand Vihar, Delhi. We

have statement of the owner Sharwan Kumar (PW-4), mother, sister

and father of the deceased, namely, Shanti (PW-1), Asha (PW-2) and

Ram Swarup (PW-9), respectively, to the said effect. The aforesaid

statements are also corroborated in the form of the first information

[i.e. DD No.4A (Ex.PW16/A)], which was recorded on the statement

by Sharwan Kumar (PW-4) on telephone at 9.45 a.m. on 14th February,

1993 by Head Constable Sarju Singh (PW-16). In DD No.4A

(Ex.PW16/A) the appellant was described as personal Chowkidar of

PW-4. Statement of the Inspector Narender Kumar Verma (PW-21),

the Investigating Officer corroborates and supports the said factual

position. In fact, the appellant in his statement under Section 313 Code

of Criminal Procedure, 1973 (Cr.P.C.) has accepted that he was

working with PW-4 as a Chowkidar, but had claimed that he had left

the services on 8th February, 1993 i.e. one week before the occurrence.

We will examine the said averment below, but suffice it is to notice at

this stage that the appellant did not lead any defence evidence.

8. The present case is based upon circumstantial evidence as there

is no eye witness to the actual occurrence, therefore, we have to rule

out possibility of a third person‟s involvement as the perpetrator of the

crime. As noticed above, the primary contention of the appellant is

that PW-4, the complainant could have been the perpetrator of the

crime as the murder and the offence under Section 376 IPC had taken

place in his house. Reliance is placed upon the testimonies of PW-1, 2

and 9 to the effect that the deceased had informed PW-2 that the

appellant and PW-4 used to tease or behave in a funny manner with the

deceased. Our attention is specifically drawn to the statement of Asha

(PW-2), sister of the deceased, who has deposed that her sister-the

deceased had informed her that PW-4 would not go out of the room

when she used to work and would tease her and praise her for being

beautiful. PW-2 and her sister had tried to tell this to their mother on a

number of occasions, but out of shame they remained quiet. PW-2 has

deposed that the appellant also used to tease the deceased and threw

drops of water on her clothes. It is also highlighted that PW-2 had

deposed that on 13th February, 1993 at about 8.30 p.m or 9.00 p.m., she

along with PW-1 and PW-9 had gone to the house of PW-4 and

pressed the call bell twice. The lights in the house were on but after

pressing of the call bell, the lights went off. Thereafter, they came

back to their own house. Three of them again next morning went to

the house of PW-4 looking for the deceased and pressed the call bell.

Wife of Sharwan Kumar (PW-4) came out and on inquiry informed

them that deceased had gone back to her house yesterday. Thereafter,

they came back to their house and started looking around for the

deceased. After sometime police came and informed them that dead

body of the deceased was found at House No.33, Dayanand Vihar, Delhi.

9. Ram Swarup (PW-9), father of the deceased has stated that on

14th February, 1993, he had gone with the police to the room on the

upper floor of House No.33, Dayanand Vihar, where the appellant

Bindadin used to reside. He knew Bindadin from before as he was the

Chowkidar of the said Kothi. In the said room he saw dead body of his

daughter. Constable Subhash Chand (PW-5) had first reached the

house along with SI Vijay Pal Singh (PW-20) and Inspector Narender

Kumar Verma (PW-21) after DD No.4A was recorded. PW-5 has

deposed that on reaching the house they went to the upper floor and

found that the room was locked and from the window it was noticed

that somebody was sleeping in a quilt. They broke the lock and found

that the lady lying on the cot was dead. Lady was identified by PW-4

as the maid, who used to work in their house. Incriminating material,

which was lying at the spot, was taken into possession. Rukka was

prepared and FIR was registered. PW-20 has deposed on identical

lines. PW-21, the Investigating Officer‟s statement on oath in the

Court is equally specific that they broke the lock and entered the room

on the upper floor of the house where dead body of the deceased was

found on the cot. There is, therefore, ample material in addition to the

statement of PW-4 to the effect that dead body of the deceased was

found in the room, which was in occupation of the appellant-Bindadin.

The room was locked from outside and lock was broken in order to

gain entry when the police arrived.

10. From the statements of the aforesaid witnesses, it is clear that the

appellant was missing and was not present at the spot when the dead

body was found in the room at about 10.45 a.m., on 14th February,

1993. The appellant in his statement under Section 313 Cr.P.C.

accepts the position that he was not present. He has stated that he had

left the services on 8th February, 1993 and was arrested from his village

on 10th September, 1993. PW-4, on the other hand, has specifically

stated that the appellant was his personal Chowkidar and the deceased

was working as a maid, who used to come during the day time for

washing utensils etc. One room on the first floor was provided to the

appellant for his residence. On 11th February, 1993, PW-4 along with

his family members had gone to Jaipur and the appellant was left

behind and was given keys of main gate of the house. Deceased used

to come to their house at noon time. Before leaving for Jaipur they had

informed the appellant that they would come back on the night of 13 th

February, 1993. The deceased had been instructed to carry out

cleaning etc. of their house in their absence. He returned from Jaipur

along with his family on 13th February, 1993 at 8.00 p.m. The main

gate of the house was locked and the appellant was missing. They

opened the door and presumed that the appellant had gone to some

nearby place and would return soon. In the morning he went upstairs

as the appellant was still missing. The room of the appellant was

found locked from outside and when he peeped from the window he

saw that someone was sleeping on the cot under a quilt. He knocked

and called out several times, but there was no response. He

accordingly became suspicious and made a telephone call to the police,

who came and broke open the door. PW-4 was extensively cross-

examined by the appellant. It was suggested to him that he was present

in the house on 13th and 14th February, 1993, but the said suggestion

was denied. PW-4 was categorical that he along with his family

members came back from Jaipur in the evening of 13th February, 1993.

In the cross-examination he has deposed that his family consists of his

wife, four daughters and a son. Out of four daughters, two were

married. He has stated that he along with other family members i.e. his

wife, two daughters, and a son had gone to Jaipur in a car. In the

cross-examination, no suggestion was given to PW-4 and it was not

alleged and put to him that the appellant had left the services on 8 th

February, 1993. This is significant and important. In these

circumstances, we feel that the statement of appellant Bindadin under

Section 313 Cr.P.C., which was recorded on 2nd January, 1998 nearly

eight months after PW-4 was cross-examined is a afterthought and

shows a new stand, which was conveniently adopted and taken by the

appellant at a subsequent stage. Asha (PW-2), who had deposed that

the appellant used to work as a Chowkidar, was also not cross-

examined and it was not suggested to her that the appellant had left

services as Chowkidar on 8th February, 1993. Identically, no such

suggestion was given to PW-9, who had stated that he knew the

appellant, who was working as Chowkidar and used to reside on the

first floor of House No.33, Dayanand Vihar where dead body of his

daughter was found. As noted above, in the first DD No.4A

(Ex.PW16/A) recorded by Head Constable Sarju Singh (PW-16) it is

mentioned that the Chowkidar-appellant was missing.

11. The abscondence of the appellant in the present case is an

important and vital link to the chain of circumstances. The appellant

was assigned duty and was employed as a Chowkidar to take care of

the house. We are conscious and aware that mere abscondence itself

does not necessarily lead to a conclusion that the person absconding

was guilty. Abscondence at times can be explained as an act of self

preservation. We are aware of cases where innocent persons have

absconded because of panic and to evade arrest, though they were

wrongly suspected. But each case has to be examined on its own facts,

when the prosecution claims that the accused had absconded, and this

was a vital link. Evidentiary value, which is to be attached, also

depends upon circumstances and factual matrix of each case. In the

present case abscondence of the appellant is relevant and material once

we accept that the appellant was a Chowkidar and used to reside in the

room on the upper floor of House No.33, Dayanand Vihar, where the

dead body of the deceased was found on 14 th February, 1993 and the

house owner and his family had gone to Jaipur on 11 th February, 1993

to return only at night on 13th February, 1993. In the aforesaid factual

matrix, the fact that the appellant was absconding is a relevant fact

under Section 8 of the Evidence Act. His conduct becomes an

incriminating circumstance against him. We clarify that we have not

treated the abscondence as the sole or only reason to implicate and

hold that the appellant is the perpetrator of the crime in question, but

taken the cumulative effect of different incriminating facts against the

appellant which have been proved. The said factum is an important

and relevant link in the said chain.

12. PW-4 has categorically deposed that he along with his family

members had gone to Jaipur on 11th February, 1993 and had returned at

about 8.00 p.m. on 13th February, 1993. PW-1, 2 and 9 have deposed

that in the morning of 13th February, 1993, the deceased had gone to

the house No.33, Dayanand Vihar for doing household work. PW-2

and the deceased had together left home before they parted as PW-2

went to a different house to do household work. Thereafter, the

deceased did not return home till about 7.00 or 8.00 p.m. PW-2

returned home at about 7.00 or 8.00 p.m. PW-2 and PW-9 have stated

that they went to house No.33, Dayanand Vihar, the same night on 13th

February, 1993. PW-9 has stated the house was found locked, but

lights were on and nobody responded. PW-2 has deposed that they

pressed call bell twice. The lights were on, but later on went off when

they pressed the call bell for the second time. She has also stated that

they had gone to the house at 8.30 p.m. or 9.00 p.m., but the time

mentioned it appears was mere estimation. PW-4 was residing in his

house with her wife, two daughters and a son. Similar statement was

made by him to the police on 14th February, 1993 to the said effect and

it was highlighted that the appellant was missing from his house. This

is clear from the cross-examination of PW-20, who had stated that they

had interrogated PW-4 and he had stated that he had gone out of station

and had returned. Though, he was not sure about the date and time

when PW-4 had returned from Jaipur. PW-21, the Investigating

Officer was more categorical and has stated that they had made

inquiries from PW-4 about his visit and return from Jaipur. PW-4 has

stated that he and his family members came back from Jaipur in the

evening on 13th February, 1993. PW-4 was not directly cross-

examined on his visit/trip to Jaipur from 11th February, 1993 to 13th

February, 2013.

13. PW-1, 2 and 9 had grievance against PW-4 as they had lost the

deceased. PW-2 has lost her sister and PW-1 and PW-9 have lost their

daughter for no fault of theirs. Her dead body was found in the House

No.33, Dayanand Vihar, which belonged to PW-4. The deceased had

gone to work in the house of PW-4. To some extent, therefore, they

were angry and had grievance against PW-4. We have to rule out any

possibility of PW-4‟s involvement in the said crime keeping in mind

that he was the owner and would have made every effort to prevent his

implication even if he had committed the crime. It is for this reason we

have referred to the testimony of PW-4 that he and his family members

were in Jaipur. PW-4‟s conduct and the observations of the police

officers, who had interrogated PW-4 and verified whether he and his

family were out of Delhi to rule out his involvement are clear,

categorical and merit acceptance. The appellant while putting up an

alibi or a defence to save himself did not specifically and in detail

cross-examine PW-4 on the said aspect i.e. trip/visit to Jaipur.

14. Thus the deceased had come for work at house no. 33,

DayanandVihar, Delhi on 13th Feburary,1998 and thereafter did not

return home. On the said date and time the appellant, who was working

as a watchman was alone and PW-4 and his family were not present.

On 11th February,1998, PW-4, his wife and children had gone to Jaipur

and had returned on 13th Feburary,1998 at about 8 P.M. When PW-4

returned to Delhi, the appellant was missing. Next day in the morning,

dead body of the deceased was found in the room on the first floor

which was occupied by the appellant. The appellant had absconded and

was arrested subsequently on 19th September, 1998. The victim, a

young girl aged about 18/19 years, was sexually abused just before her

death. The appellant had given a false explanation that he had left

employment of PW-4, one week before the occurrence.

15. The unfortunate occurrence had taken place in the absence of

PW-4, his wife and children. Occurrence of such nature in the presence

of women and children in the house though not an impossibility, is

remote and rather improbable. The appellant alone was present in the

entire house when the deceased had come for work. What had

happened thereafter and resulted in the death was within the personal

knowledge of the person present i.e. the appellant. The appellant did

not offer or give any plausible explanation as to the incident. He did

not adduce any defence evidence that he had left the job and was

present or working at a different place. As noticed above the appellant

belatedly took the said stand in his statement under section 313 Cr.P.C.

but did not cross examine or give the said suggestion to the employer

PW-4.

16. In a recent decision in Prithipal Singh etc. vs. State of Punjab

and Others, (2012) 1 SCC 10, the Supreme Court while referring to

the judgment State of West Bengal vs. Mir Mohammad Omar and

Others, AIR 2000 SC 2988 observed that if a fact is especially in the

knowledge of any person, then onus of proving that fact is upon him.

It is impossible for prosecution to prove certain facts particularly

within the knowledge of the appellant, when a third person‟s presence

is ruled out. Section 106 of the Evidence Act is not intended to relieve

the prosecution of its burden to prove the guilt of the accused beyond

reasonable doubt. But the Section would apply to cases where the

prosecution has succeeded in proving facts from which a reasonable

inference can be drawn regarding the existence of certain other facts,

unless the accused by virtue of his special knowledge regarding such

facts, failed to offer any explanation which might drive the Court to

draw a different inference. Section 106 of the Evidence Act is

designed to meet certain exceptional cases, in which, it would be

impossible for the prosecution to establish certain facts which are

particularly within the knowledge of the accused.

17. On the question whether deceased had died a homicidal death

and had been subjected to rape under Section 376, we have the post

mortem report (Ex.PW8/A). Post mortem was conducted by Dr. L.T.

Ramani (PW-8) on 15th February, 1993 at JPN Hospital. The

following injuries were found:-

1. five lenear crescentic abrasions 1 cm. long (finger nails marks) on the left side front of neck of the middle part.

2. Reddish bruise 3 cms x 2 cms on the left sub mandibular area

3. There was fresh tear of hymen of the posterior wall (6‟ O clock position with brusing of vaginal wall.

He opined that injuries over the neck were caused by

strangulation and was sufficient in the ordinary course of nature.

Death was due to asphyxia resulting from manual strangulation. Time

since death was about 40 hours. He also opined that injury no.3 to the

genetalia was also antemortem and suggested sexual assault. He

proved the post mortem report Ex.PW8/A.

18. The Supreme Court in State of Himachal Pradesh vs. Lekh Raj

and Others, AIR 1999 SC 3916 opined thus:-

"5. We are, however, of the opinion that the High Court was not justified in holding that the prosecutrix had not been subjected to forcible sexual intercourse or the prosecution had failed to prove the case against the respondent No. 1 also. To hold that the prosecution had not proved the case against the respondent, beyond reasonable doubt, the High Court mainly relied upon the medical evidence and finding that "no dead or alive spermatozoa were seen. Absence of

such dead or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix rules out the possibility of the prosecutrix having been subjected to sexual intercourse on the date and time alleged by the prosecution". Such a conclusion is not referable to any evidence on record. No such suggestion was put to the doctor nor any medical authority referred to in support of the conclusions arrived at by the High Court. This Court in State of Maharashtra v. Chandraprakash Kewalchand Jain relying upon medical evidence observed that "spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. If the prosecutrix washes herself by then, the spermatozoa may not be found. In that case the Court after satisfying itself regarding the presence of semen on the clothes of the prosecutrix held that "the absence of semen or spermatozoa in the vaginal smear and slides, cannot cast doubt on the creditworthiness of the prosecutrix.

6. Modi in his medical jurisprudence and toxicology has noted: " the presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days, and by Morrison (1972) upto 9 days in vagina and 12 days in the cervix. However, in the vagina of dead woman they persist for a longer period.

It follows, therefore, that the presence of spermatozoa, dead or alive, would different from person to person and its positive presence would depend upon various circumstances otherwise also the presence or absence of spermatozoa is ascertained for the purposes of corroboration of the statement of the prosecutrix."

19. In the instant case, however, medical examination of the victim

was conducted approximately after about 40 hours and exhibits were

sent to CFSL after 14 days. Even if spermatozoa could not be seen, this

does not justify rejection of the post mortem report and observations of

the doctor PW-8. Observations in Lekh Raj's case (supra) are apposite.

20. In the light of the above discussion, the impugned judgment and

sentence need no interference. The appeal of the appellant lacks merit

and is hereby dismissed. The sentence and conviction of the appellant

is sustained.

21. The appellant is directed to surrender within 10 days and serve

the remainder of his sentence. The Registry shall transmit the trial

court record to ensure compliance of the judgment.