Ayub @ Munna vs State Of Nct Of Delhi
2016 Latest Caselaw 5958 Del

13#$
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+           CRL.A. 657/2000 and Crl. M.A. No. 14165/2013
%                                        Decided on: 14th September , 2016
      AYUB @ MUNNA                                       ..... Petitioner
                  Represented by:              Mr. Ramashankar, Advocate.
                         versus
      STATE OF NCT OF DELHI                                 ..... Respondent
                    Represented by:            Ms. Hirein Sharma, APP for
                                               State with SI Prakash Chand
                                               Meena, PS Lodhi Colony.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)

1. Since 13th September, 2016 was declared a holiday vide notification No.2092/G-4/Genl./DHC the matter is being taken up today.

2. Ayub @ Munna has been convicted for offence punishable under Section 376 IPC vide the impugned judgment dated 1 st September, 2000 and directed to undergo rigorous imprisonment for a period of ten years vide the order on sentence dated 4th September, 2000.

3. Pending hearing of the appeal, the sentence of the appellant was suspended by this Court vide order dated 25th March, 2003 as he had already undergone imprisonment for more than five years including remissions.

4. The judgment of the conviction of the appellant was passed on the strength of the testimony of the prosecutrix who in her examination-in-chief deposed that on 15th August, she came to her mother's sister's house at Delhi. After about one month at about 5.00 PM while she was grazing the goats in the park situated near the jhuggi of her aunt, the appellant came

there, caught hold of her hand and dragged her towards the bushes. The appellant opened the string of her salwar and lay upon her. When she made noise the appellant gagged her mouth. She became unconscious and felt some pain below her abdomen. When she regained consciousness she found blood stains on her salwar and blood was oozing out from her vagina. After reaching her aunt's house she narrated the incident to her and when at about 6.30 PM her uncle came she narrated the incident to him whereafter they took her to the police station, she was medically examined and her statement was recorded. Her salwar was also taken into possession by the doctors in the hospital.

5. Since she did not depose certain facts, she was cross-examined by the learned APP whereafter she was cross-examined on behalf of the accused. In the cross-examination she stated that her statement was not recorded on the day by the police and that she did not tell anything to the police on that day. She further stated that on 18th September, 1997 she put thumb impression on a blank paper at the police station at the instance of her uncle, that is, Khallu. She stated that her uncle had friendly relations with the police officials, she had not gone to the park to graze the goats on 18th September, 1997, Ayub did not meet her in the park nor anywhere else on that day. The witness was re-examined by the learned APP wherein she stated that her statement that she was raped by Ayub was made at the instance of the police officials.

6. The learned Trial Court vide the impugned judgment held that since the version of the prosecutrix in her examination-in-chief was convincing and even if she resiled in cross-examination, conviction can safely be based as the same was duly supported by the MLC Ex.PW-7/1 of the prosecutrix

which noted history of bleeding from vagina and that the hymnal ring was having a small laceration on right lower margin with small (0.5 x 0.5) clot and further as per the FSL report semen was detected on the salwar, dupatta and the vaginal smear of the prosecutrix and the semen stains on the salwar and dupatta are of 'AB' group which tallied with that the of the appellant, which was also of 'AB' group.

7. During the pendency of hearing of this appeal, the appellant filed an application being Crl. M.A. No. 14165/2013 under Section 391 Cr.P.C. on which after hearing the parties this Court on 3 rd August, 2016 passed the following order:

"Crl.M.A. No.14165/2013 (u/S. 391 Cr.P.C.) By this application the appellant seeks to place on record further evidence. Appellant claims that during his incarceration in jail it was revealed that his blood group was „O‟ Positive, however this evidence was not brought on record by the earlier counsel for the reasons best known to him and after the present counsel was engaged and he was preparing the case for final arguments it came to his notice that blood group of the appellant was „O‟ Positive and thus the same was required to be brought on record.

In the present case the case of the prosecution is that after the prosecutrix was raped she was medically examined and vaginal swab, her clothes, the blood of the appellant and his clothes were sent to FSL. As per the report of the FSL semen was detected on the salwar, dupatta and the vaginal smear of the prosecutrix. As per the FSL report the semen stains on the salwar and dupatta were of „AB‟ group which tallied with the blood group of appellant „AB‟ which was taken on a gauze piece. Appellant contends that his blood grouping is „O‟.

Supreme Court in the decision reported as I (2012) SLT 377 Sudevanand, Santoshanand, Ranjan Dwivedi Vs. State through CBI held:

"29. The matter may be looked at from another angle. Section 391 of the Code of Criminal Procedure. provides as follows:

"391. Appellate Court may take further evidence or direct it to be taken.' (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

30. It is, thus, to be seen that the provision is not limited to recall of a witness for further cross- examination with reference to his previous statement. The Appellate Court may feel the necessity to take additional evidence for any number of reasons to arrive at the just decision in the case. The law casts a duty upon the court to arrive at the truth by all lawful means. This is

another reason why we feel any reliance on Mishrilal that considered the recall of a witness in the context of Section 145 of the Evidence Act is quite misplaced in the facts of this case."

It is also well established that the blood group of a person does not change with time. Thus to arrive at a just decision it is the bounden duty of this Court to get the blood grouping of the appellant checked up to verify the claim in the application.

List on 10th August, 2016 in the category of „Regular Matters‟ as per its own turn when the appellant and the investigating officer will be personally present."

8. A report has been received from the CMO, AIIMS which notes that blood group of the appellant is 'O' Positive and not 'AB' group. Thus fortifying the claim of the appellant that he has been falsely implicated.

9. Supreme Court in the decision reported as (2006) 3 SCC 374 Zahira Habibullah Sheikh (5) Vs. State of Gujarat noting that the concept of fair trial to an accused held that it was central to the administration of justice and the cardinality of protection of human rights held-

"37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny."

10. In view of the law laid down by the Supreme Court noted above it is the bounden duty of this Court to take this additional evidence on record. The additional evidence along with the affidavit is taken on record. Thus the judgment of the learned Trial Court which basis its conviction relying on the corroboration by the report of FSL noting that the blood group of appellant as AB was erroneous. This Court is now required to examine whether the conviction of the appellant can be based on the testimony of the prosecutrix and her MLC.

11. Considering the vacillating stand of the prosecutrix, conviction of the appellant cannot be based on the sole testimony of the prosecutrix. But the version of the prosecutrix in the examination in chief is supported by the MLC which only proves that the prosecutrix was raped, however the FSL report and the additional evidence disproves the fact that the appellant is the accused who raped the prosecutrix as the semen stains found on the salwar, dupatta and the vaginal smear of the prosecutrix do not belong to the appellant. The appellant is thus entitled to be acquitted.

12. Consequently the impugned judgment of conviction dated 1st September, 2000 and order on sentence dated 4th September, 2000 are set aside. The appellant is acquitted for the charge framed. The surety bond and the personal bond are discharged.

13. Appeal and application are disposed of. Trial Court record be sent back.

(MUKTA GUPTA) JUDGE SEPTEMBER 14, 2016 'vn'