Nashrulla @ Babbla vs State (Nct Of Delhi)
2015 Latest Caselaw 4822 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of judgment: 09.7.2015

                          Crl. Appeal No. 910/2013

       NASHRULLA @ BABBLA                ......Appellant
               Through: Mr.S.B.Dandapani, Advocate.

                      Versus


       STATE (NCT OF DELHI)              .......Respondent

Through: Mr.Pramod Saxena, APP for the State.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1. This appeal is directed against the impugned judgment and order

of sentence dated 26.7.2011 and 02.8.2011 respectively wherein the

appellant stands convicted under Sections 363 and 376 of the IPC. The

maximum sentence awarded to him is RI 10 years besides fine for each

of the two offences. The sentences were to run concurrently.

2. On the complaint of Niranjan Shah (PW-6) the present FIR was

registered. He was the father of the prosecutrix. The victim was

examined as PW-4. Her brother was examined as PW-5. The mother of

the victim was examined as PW-3. The doctors who had medically

examined the victim and proved her MLC were examined as PW-2 and

PW-8. MLC of the victim was proved as Ex.PW-2/A by PW-2. The

victim was examined by Dr. Ekta Mathur, Senior Resident, DDU

Hospital (PW-8). The accused was arrested 25 days after the date of the

incident i.e. on 10.10.2009. The Investigating Officer was examined as

PW-16. Charge sheet was filed by the next Investigating Officer i.e.

PW-15.

3. In the statement of the accused recorded under Section 313

Cr.P.C. he pleaded that he was innocent and he had been falsely

implicated. No evidence was led in defence.

4. In view of the statement of the victim, her brother, her parents as

also the medical record, the accused was convicted and had been

sentenced as aforenoted.

5. On behalf of the appellant arguments have been addressed by

learned Amicus Curiae Mr.Dadapani. It is pointed out that even

presuming that the untoward act of rape had been committed upon the

victim yet the identity of the victim not having been established by the

prosecution the accused is entitled to a benefit of doubt in this score and

a consequent acquittal. This is the main thrust of the argument which

have been addressed before this Court.

6. Submissions and counter submissions of the parties have been

noted.

7. Admittedly, the incident occurred on 14.9.2009. This is clear

from the version of the complainant who was the father of the victim.

Surprisingly, the Investigating Officer did not care to record the

statement of the victim under Section 161 Cr.P.C. till 10.10.2009 which

is 25 days after the date of incident. No statement of the victim under

Section 164 Cr.P.C. was also recorded. These are serious lacuna. It has

rightly been pointed out by the learned public prosecutor that defects in

investigation should however not sway in favour of the accused and the

accused cannot be entitled to benefit for lapses in investigation.

8. Be that as it may, the rule of criminal jurisprudence is clear. The

prosecution must stand on its own legs and it has to prove its case to the

hilt. The identity of the accused has to be fully established. An

innocent cannot be convicted for an offence which might have taken

place for which he was not the offender. There is no doubt about this

proposition.

9. The accused was a stranger to the victim. This is clear from the

version of the prosecution. He was not known either to the victim or to

her family. As per the version of PW-4 (aged about 5 years), after the

preliminary round of questions, she had on oath stated that the accused

had committed galat kaam upon her. This was at the time when she was

accompanied by her brother Suraj (PW-5). They were playing with their

friends when the accused on the pretext of a toffee tempted PW-4 and

took her to jungle. After leaving her brother the accused did "galat

kaam" upon her. Injuries had been sustained on her body. When the

accused was doing "galat kaam" upon her she had bit him on his arm.

The biting by the victim on the arm of the accused was most relevant

factor which has been taken into account by the Session Judge to hold

that the identity of the accused stands established as the MLC of the

accused conducted on 11.10.2010 by Dr.Bhavna (PW-1) had noted an

oval bruise over the lateral aspect of right arm of the accused which was

probably caused by a human bite.

10. In this context, before adverting to the testimony of brother of the

victim (who had also accompanied PW-4 was an eye-witness to the

accused) learned Amicus Curiae has drawn attention of this Court to the

arrest memo of the accused. The arrest memo (Ex.PW-4/A) shows that

the arrest of the accused was made on 10.10.2009. The MLC of the

accused was conducted on 11.10.2009 in the afternoon at 1.40 p.m.

Oval bruise over the lateral aspect of right arm of the accused was noted

by the doctor who also opined that this was probably due to a tooth bite.

Testimony of PW-10 is also relevant. He has joined investigation along

with Investigating Officer (PW-16) at the time when the arrest of the

accused took place. PW-10 has on oath deposed that he along with

PW-16, prosecutrix and her parents went near a pond, Bindapur where

on the pointing out of the prosecutrix the accused was identified and was

arrested. ASI Saroj (PW-16) also deposed that on 11.10.2009 the father

of the prosecutrix inform him about the presence of the accused near his

house. She along with the staff went to the house of the complainant

and arrested the accused from there. There is a discrepancy in the

version of PW-16. She has given the date of arrest of accused as

11.10.2009 which is not the date of arrest as per the arrest memo.

Memo of arrest shows the date of arrest as 10.10.2009 which is also the

version of PW-10.

11. The testimony of PW-5 is also relevant on this score. He is the

brother of the victim. He was also the so-called eye-witness, along with

PW-4, who had seen the accused taking away his sister. It was

admittedly a winter month at about 8.00 p.m. when the incident had

taken place; it was dark. The description of the accused has not been

given by PW-5. No description has been given by PW-4. In fact no

statements of PW-4 or PW-5 was recorded by the Investigating Officer

under Section 161 Cr.P.C. right up to 10.10.2009. They had not given

any description or detail about the accused. As noted supra no statement

of the victim was recorded at all under Section 164 Cr.P.C. The accused

was a stranger to both PW-4 and PW-5.

12. PW-5 had stated that he had seen the accused roaming in the

Talabwala Park which information he had given to his father who in turn

informed the police and the accused was arrested. This is not the

version of PW-10. His version is contrary on this score. His deposition

is to the effect that he along with the Investigating Officer and the

family of the victim had gone to the pond where on the pointing out of

the victim the accused was arrested. PW-4 had given a still different

version. She had on oath deposed that she had seen the accused later on

with the police and identified him as the person who had done "galat

kaam" with her. She had not stated that at her pointing out the accused

was arrested which is the version of PW-10.

13. The object of holding a test identification parade (TIP) is twofold.

Firstly, it is to enable the witnesses to satisfy themselves that the

accused whom they suspect is the real one who had committed the

crime. Secondly, it is to satisfy the Investigating Authority that the

suspect is the real person whom the witnesses had seen the connected

with the crime. A test identification parade assumes much greater

importance when the accused is not known to the victim or the other

witnesses as was so in the present case. Admittedly, no test

identification parade was held.

14. The relevance of test identification parade was discussed by a

Bench of this Court reported in MANU/DE/3020/2010 Lalit Kumar @

Sonu Vs. State of NCT of Delhi . In this context it was noted as under:

"It is true that the normal rule is that testimony of a witness, who does not know an accused form before and identifies him for the first time in the court as a person who had participated in the commission of the crime, without holding a previous identification parade does not carry much weight. The substantive evidence of a witness is the statement in court but as a rule of prudence, earlier identification proceedings are held in order to corroborate the testimony of a witness given in court as regards the identity of the accused who is not known to him from before."

15. Admittedly, in this case PW-4 and PW-5 had seen the accused

who was a stranger to them only on the fateful day which was on

14.9.2009 at around 7.00 - 8.00 p.m. on a winter night. The victim had

been subjected to rape. Brother of the victim PW-5, however, saw the

accused only for a fleeting moment and the victim had been enticed

away by the accused and PW-5 had however left the scene.

16. At the cost of repetition, it is noted that no general description or

features of the accused were given by either PW-4 or PW-5. In fact

statement of PW-4 (victim) and PW-5 was not recorded under Section

161 Cr.PC up to 10.10.2009. Statement of the victim or her brother

aged (7 years) was not recorded under Section 164 Cr.P.C at all. The

accused was arrested 25 days late. The date of arrest is discrepant. The

Investigating Officer had given the date of arrest as 11.10.2009 whereas

as per the version of PW-10 the accused was arrested on 10.10.2009.

The only connecting circumstance which the trial judge had observed of

the accused with the crime was the version of PW-4 is that she had

bitten the accused on his right arm and the MLC of the accused

evidenced an oval bruise over lateral aspect of his right arm.

17. Relevant would it be to reiterate that the statement of the victim

was not recorded by the investigating officer right up to 10.10.2009; in

this statement under Section 161 Cr.P.C. there is no mention whatsoever

that at the time of incident the victim had bitten the accused over his

right forearm. The appellant was examined by the doctor on

11.10.2010. An oval bruise on his right forearm had been noted by the

doctor. The Trial Judge in para 13 of the judgment has relied upon this

as a connecting circumstance noting that the victim had in her statement

recorded under Section 161 Cr.P.C. had stated that she had bitten

accused on his right forearm. However, this does not find mention

anywhere in the statement of the victim. She has stated that only in her

statement on oath in Court. This is vital improvement. Thus the

submission of the learned counsel for the appellant that there was

nothing to connect the appellant with the crime carries strength.

18. All along the defence of the accused is that this is a case of

unestablished identity and he is a stranger and in no manner the accused

cannot be connected with the crime.

19. In this background the accused is entitled to benefit of doubt as

the prosecution has failed to establish the identity of the accused.

Benefit of doubt is given to the accused and consequently he is

acquitted.

20. Appellant be released forthwith, if he is not required in any other

case.

21. Appeal disposed of.

22. A copy of this order be sent to the Jail Superintendent for

intimation and compliance.

INDERMEET KAUR, J

JULY 9, 2015 ndn