Subodh vs State
2016 Latest Caselaw 4287 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Date of Decision: 3rd June, 2016
+        CRL.A. 1584/2013
         SUBODH                                                ..... Appellant
                               Through:       Mr. Imran Khan, Advocate

                               versus
         STATE                                                  ..... Respondent
                               Through:       Ms. Neelam Sharma, APP with Sub
                                              Inspector Sunil Kumar, P.S. Govind
                                              Puri.
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
                  JUDGMENT

: SUNITA GUPTA, J.

1. It is stated that human lust knows no bounds-if there is any truth in

it, the present case is a glaring example of such lust. In the present case a

tiny tot aged about 2-1/2 years has become a victim of the lust of the

appellant resulting in his conviction under sections

376(2)(f)/363/186/332/353 IPC in Sessions Case No. 85/2011 arising out

of FIR No.29/10 PS Govind Puri and sentenced to undergo various

prison terms.

2. Succinctly stated, the case of the prosecution is as follows:

Briefly stated, the prosecution case as reflected in the charge-

sheet is that on 01.02.2010 at about 08.00 P.M. the appellant after

kidnapping the prosecutrix 'X' (assumed name), a minor child, aged

about 2 years sexually assaulted her. Police machinery came into motion

when information about the incident was recorded vide Daily Diary

(DD) No.20A at PS Govind Puri. The investigation was assigned to SI

Ashok Giri who went to the spot. First Information was lodged on the

statement of victim's mother - Ruby. She disclosed as to how and under

what circumstances, 'X', her daughter was sexually assaulted by the

appellant. During investigation, statements of the witnesses conversant

with the facts were recorded. 'X' was medically examined. Accused was

arrested. While apprehending the accused, he had hit HC Jagat Singh

(PW7) by means of an iron rod due to which he suffered injuries.

Medical examination of accused was also conducted. The exhibits were

sent to Forensic Science Laboratory for examination. After completion

of investigation, a charge-sheet was filed against him in the Court.

3. Charge for offence u/s. 363/376/186/332/353 IPC was framed

against the accused, to which he pleaded not guilty and claimed trial. The

prosecution examined fourteen witnesses to substantiate its case. In 313

statement, the appellant denied his complicity in the crime and pleaded

false implication without examining any witness in defence. The learned

Trial Court on the basis of circumstantial evidence adduced by the

prosecution witnesses held that the prosecution had established the guilt

of the accused for the offences u/s 363/376/186/332/353 IPC and

sentenced him as under:-

(i) RI for 10 years and a fine of Rs.5000/- in default simple imprisonment for one month for the offence u/s 376(2)(f) of IPC.

(ii) RI for 1 year and a fine of Rs.5000/- in default to undergo SI for one month for offence u/s 363 IPC.

            (iii)     RI for 1 month for offence u/s 186 IPC.
            (iv)      RI for 1 year for offence u/s 332 IPC.
            (v)       RI for 6 months for offence u/s 353 IPC.

All the sentences were to run concurrently. Benefit of Section 428

Cr.P.C. was given to the convict.

Being aggrieved and dissatisfied, he has filed the instant appeal.

4. The learned Trial Court based the conviction of the accused on the

following circumstances:-

     (i)           Evidence of last seen;

     (ii)          Recovery of prosecutrix from the possession of the
                   accused; and

     (iii)         Medical evidence

5. Only submission made by the learned counsel for the appellant

challenging the legality and validity of impugned judgment is that same

suffers from some contradiction. Rebutting the contention learned APP

for the State submits that minor contradictions does not affect the

substratum of the case. Prosecution has established its case beyond

reasonable doubt in proving the heinous crime committed upon two year

child and when he was being apprehended, he also obstructed police

official in discharge of his duties by hitting him with iron rod. Impugned

judgment does not call for interference. Appeal deserves to be

dismissed.

6. I have given anxious thoughts to the respective submissions of

learned counsel for the parties and have perused the record.

7. Admittedly the case of prosecution is based on circumstantial

evidence as the eyewitness to the incident is a minor girl aged about 2-

1/2 years. As she was not in a position to speak so she was not made a

witness in the case and therefore there is no direct evidence on record

that any of the witnesses examined by the prosecution has seen the actual

commission of the crime. Thus, there is a definite requirement of law

that a heavy onus lies upon the prosecution to prove the complete chain

of events and circumstances which will establish the offence and would

undoubtedly only point towards the guilt of the accused. A case of

circumstantial evidence is primarily dependent upon the prosecution

story being established by cogent, reliable and admissible evidence. Each

circumstance must be proved like any other fact which will, upon their

composite reading, completely demonstrate how and by whom the

offence had been committed. Hon'ble Supreme Court and this Court have

clearly stated the principles and the factors that would govern judicial

determination of such cases.

8. Reference can be made to the case of Sanatan Naskar and Anr. v.

State of West Bengal in (2010) CCR 134 (SC) : V (2010) SLT 388 :

(2010) 8 SCC 249, where it was observed as follows:-

"13. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eye-witness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard.

14. A three-Judge Bench of Hon'ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116 held as under:

"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P., (1969) 3 SCC 198 and Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case (supra):

10.... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, where the observations were made:

19.... 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 'maybe' 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.

154. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."

9. Since there can be no dispute with this proposition of law, I

proceed to examine the circumstances relied upon by the prosecution and

testing the same on the touchstone of the 'panchsheel' formulated in the

case of Sharad Birdhichand Sarda (supra).

10. Admitted position is that 'X' is minor girl aged about 2 years. She

was not in a position to speak so she was not made a witness in this case.

So far as the age of child is concerned, PW-7 Pawan Kumar from

NDMC proved the birth certificate( Ex PW 4/C). Nothing adverse came

out in his cross examination. PW 4 Ruby and PW5 Kaushal, parents of

the victim deposed age of prosecutrix to be 2 years. Accused has not

challenged the age of the prosecutrix. Therefore, it was proved beyond

reasonable doubt that the age of prosecutrix was 2 years.

11. It is not in dispute that PW4 Ruby along with her husband, PW5

Kaushal and the victim were residing at the house of Tula Ram, Balmiki

Mohalla, Village Tughlakabad. According to PW4, on the fateful day,

i.e., 01.02.2010 at about 8 p.m. she left her daughter/victim at the house

for getting the change of Rs.500/- to the nearby shop. On returning back

she did not find her daughter. She searched for her everywhere but all

her efforts went in vain. PW3, Shabnam, resident of the same area

informed her that she had seen accused going towards other side of

jungle along with the victim. Accused was known to her from before as

he was residing in the other mohalla. Earlier they were having a ration

shop and accused used to visit the shop. He also used to come to meet

Shabnam. She along with her husband made efforts to trace the accused.

The victim was recovered from the possession of the accused at about

12:00 night of the same day. Police was informed which came to her

house, however, returned as the daughter had been recovered. She

further deposed that victim did not eat food and was in a frightened state

of mind. When she checked her body, some injury marks were found on

her private part. Thereafter, she discussed the matter with her landlord

Tula Ram who advised her to take the victim to a private hospital. She

took the victim to a private hospital which referred her to a Govt.

Hospital. After seeing the injury marks, Govt. hospital advised her to

lodge a report to the police. Accordingly, she lodged a report Ex.PW4/A

with the police. Thereafter, she along with her husband and the victim

accompanied the police to AIIMS Hospital where her daughter was

medically examined.

12. PW5, Sh.Kaushal corroborates her testimony regarding the

missing of child and thereafter on information given by Shabnam that

she had seen accused taking his daughter, firstly he went to the house of

the accused where he was not available. Thereafter, he went near

Shamshan Ghat, Tughlakabad forest, where he saw accused coming with

his daughter with a knife in his hand. He requested the accused to hand

over her daughter. The accused threatened him by showing knife,

however, he took his daughter and went to his house. The condition of

the child was not good. In the morning, his wife informed him that there

was injury marks on her private part. Thereafter, she was initially taken

to a private hospital, then to the Govt. hospital and thereafter the matter

was reported to the police. Then, he along with the police officials and

his daughter went to AIIMS where his daughter was medically

examined. He handed over garments of his daughter which were worn by

her at the time of incident which were seized vide seizure memo

Ex.PW5/A. After the medical examination, doctor informed him that the

victim was subjected to rape.

13. PW3-Ms.Shabnam is a witness to the last seen and has deposed

that on 01.02.2010 at about 8:00 pm she had seen accused going in the

gali with the victim. Parents of the victim were searching for her and

then she informed them that she had seen accused going with the victim.

14. When the victim was brought to AIIMS, she was medically

examined by Dr. Mukesh Aggarwal, who prepared her MLC Ex.PW12/A

which was proved by Dr. Shruti and she deposed that on examination,

the hymen of the prosecutix was found ruptured and second degree

perennial tear in mid line was found.

15. On receipt of DD No.20A, SI Ashok Giri (PW10) along with lady

constable Saroj, Complainant Smt. Ruby and her husband Kaushal went

to the AIIMS hospital where medical examination of victim was got

conducted. The doctor handed over sealed pullandas which were seized.

Statement of the complainant Smt.Ruby was recorded on the basis of

which FIR was got registered. Efforts were made to locate the accused.

He along with Head Constable Jagat and Constable Jeet Singh went to

the Tuglakabad village and the accused was apprehended from Balla

Fatti Shop, Tughlakabad village. In the process of apprehending the

accused, he became violent and made efforts to evade his arrest. While

head-constable Jagat was trying to physically apprehend him, the

accused gave him iron rod blow on his eye brow as a result of which he

sustained injuries. Accused was arrested. He was medically examined

by PW2 Dr. Asit Kumar Sikary who prepared his MLC Ex.PW2/A and

opined that there was nothing to suggest that person examined is

incapable of performing sexual intercourse. Blood in gauge and penile

swab were taken and handed over to the police. The accused got

recovered a pant which he was wearing at the time of incident. The same

was seized. PW8 Constable Jagat Singh and PW9 Constable Jeet Singh

corroborated the testimony of SI Ashok Giri by deposing that during the

course of apprehending the accused, he gave an iron rod blow on right

eye brow of head-constable Jagat Singh resulting in injury. He was

medically examined by Dr. Naushad Alam and his MLC Ex. PW8/C was

prepared which was proved by PW13 Dr. Suman Karmakar and as per

the MLC Ex.PW8/C, he sustained injuries.

16. The plea of accused in his statement recorded u/s 313 Cr.P.C. is

one of denial simplicitor. According to him, he is innocent and has been

falsely implicated in this case.

17. I have independently scrutinized the testimony of the prosecution

witnesses from which it is amply proved that although the victim could

not be examined being of tender age, however, the circumstantial

evidence proved the guilt of the accused beyond reasonable doubt as all

the witnesses which were subjected to cross-examination withstood the

same and nothing material could be elicited to discredit their testimony

except for minor contradictions. Minor contradictions or consistencies

are bound to occur in the testimony of the witnesses due to lapse of time.

However, it is only if the contradiction goes to the substratum of the case

that affects the prosecution case and not minor inconsistencies here and

there.

18. Accused was well known to the family of the victim from before

as it has come in evidence that earlier the father of the victim was having

a ration shop and accused used to reside in the other mohalla and used to

visit his ration shop. Accused also used to visit the house of the victim

as the family of the victim as well as the accused belong to Bihar and

sometimes mother of the victim used to offer him tea as well. He was

also known to PW3 Shabnam. He used to visit her house as well. As

seen above, Shabnam has seen accused taking the child with him and

when the parents of the victim were searching her then she informed that

she had seen the accused taking the child along with him, thereafter the

victim was recovered from the possession of the accused. Except for a

bare suggestion that accused had given a sum of Rs.7000/- to the father

of the victim which he was not returning and this suggestion has been

denied by him as well as his wife, there is absolutely no cogent reason as

to why the complainant or her husband or for that reason Shabnam will

falsely implicate him in this case. It was only on the next date of

incident when the mother of the victim noted injuries on her private part

then the victim was initially taken to a private doctor and then to a govt.

hospital from where she was advised to approach the police. Thereafter,

she was taken to AIIMS where she was medically examined by Dr.

Mukesh Aggarwal and as per MLC, her hymen was found ruptured and

second degree perennial tear in mid line was found. Then the police

machinery swung into action. Therefore, there was absolutely no rhyme

and reason for the complainant or her husband to falsely implicate the

accused in this case.

19. Recovery of the child from the possession of the accused has been

proved by PW5-Kaushal. When all the incriminating evidence was put

to the accused while recording his statement u/s 313 Cr.P.C., he failed to

furnish any appropriate explanation.

20. In Pudhu Raja and Anr. vs. State, (2012) 11 SCC 1960, it was

observed that it is obligatory on the part of the accused while being

examined under Section 313 Cr.P.C., to furnish some explanation with

respect to the incriminating circumstances associated with him, and the

Court must take note of such explanation even in a case of circumstantial

evidence, in order to decide, as to whether or not, the chain of

circumstances is complete. When the attention of the accused is drawn to

the circumstances that inculpate him in relation to the commission of the

crime, and he fails to offer an appropriate explanation, or gives a false

answer with respect to the same, the said act may be counted as

providing a missing link for completing the chain of circumstances.

21. Then, in para No. 13 it was concluded by the Hon'ble Supreme

Court that:-

"13....The accused have not been able to properly or reasonably explain as to the legitimacy or origin of their possession of the articles carried by the deceased when he arrived from abroad at the airport at Chennai. In such circumstances, since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act, to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The appellants in this case have miserably failed to explain their lawful possession of those articles with them that really belonged to and were in the possession of the deceased when he landed at the air port at Chennai. Consequently, it was legitimate for the courts below, on the facts and

circumstances of this case, to draw the presumption not only of the fact that they were in possession of the stolen articles after committing robbery but also committed the murder of the deceased, keeping in view the proximity of time within which the act of murder was supposed to have been committed and body found and the articles recovered from the possession of the accused...."

22. The factum of last seen evidence as proved from PW5 coupled

with the recovery of victim from the possession of accused and the

medical examination completes the link in the chain for proving that it

was the accused, who had committed the brutal rape upon a child of two

years only.

23. Although it is true that the FSL result could not lead us anywhere,

however, it may be due to the fact that it was on the next day of the

incident that the victim was medically examined and the accused could

be arrested after two days of the incident and then medically examined.

Due to lapse of time, no concrete information could come but that itself

is not sufficient to discard the other evidence which has come on record.

As such, the learned Trial Court was justified in convicting the appellant

for offence u/s 363/376(2)(f) IPC. It also stands proved from the

testimony of SI Ashok Giri, Head Constable Jagat and Constable Jeet

Singh that in the process of apprehending the accused, he obstructed

Head Constable Jagat in discharge of his official duties while assaulting

him with an iron rod as a result of which he sustained injuries. As per

the MLC Ex. PW8 wherein the injuries were opined to be simple blow

on the right forehead above eye brow. SHO PW14-Inspector Veer Singh

proved the complaint u/s 195 Cr.P.C., as such, the accused was rightly

convicted u/s 186/332/353 of IPC. The conviction of the accused for the

aforesaid offences was based on the entire appreciation of the testimony

of the witnesses which does not suffer from any infirmity so as to call for

interference.

24. Coming to the quantum of sentence, needless to say the offence

committed by the accused is very heinous in nature, who in order to

satisfy his lust did not leave even a child of two years and committed the

brutal act of rape upon her. The minimum sentence as prescribed u/s

376(2)(f) has been awarded to the appellant by sentencing him to

undergo RI for 10 years. Various other sentences were imposed upon

him. There are no mitigating circumstances so as to warrant any

interference even regarding quantum of sentence.

25. That being so, the appeal is bereft of any merit and the same is

accordingly dismissed.

The appellant be informed through Superintendent Jail. Trial court record along with copy of the judgment be sent back forthwith.

(SUNITA GUPTA) JUDGE JUNE 03, 2016 rs