Delhi High Court
Ichcha Ram vs State on 20 May, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Judgement reserved on:06th May, 2019
Judgment pronounced on: 20th May, 2019
CRL.A. 765/2004
ICHCHA RAM ..... Appellant
Through: Mr. Bipin Kumar, Advocate
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for the State
With SI Raju Yadav, PS Sultanpuri
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL. J
1. Present appeal has been filed by the appellant under Section 374 of
the Code of Criminal Procedure(hereinafter referred to as 'Cr.P.C')
and is directed against the impugned judgment dated 28.02.2004 and
order on sentence dated 09.03.2004 passed by Additional Session
Judge, Delhi in Session case No. 171/2001 in FIR No. 1489/1996,
registered under Sections 302/376/506-II of the Indian Penal Code
(hereinafter referred to as 'IPC') at PS, Sultanpuri, whereby the
Learned Additional Sessions Judge has found the appellant guilty and
has sentenced him as follows:
"I, therefore, sentence the convict Ichcha Ram to
life imprisonment with Rs. 10,000/-(ten thousand) as
fine and in default of payment of fine to further
undergo one-year SI, for the offence punishable U/s
376 IPC.
I also sentence convict to life imprisonment with
Rs. 10,000/-(ten thousand) as fine and in default of
payment of fine to further undergo one-year SI, for the
offence punishable U/s 302 IPC.
I also sentence the accused to undergo RI for the
period of seven years with Rs. 10,000/-(ten thousand)
as fine and in default of payment of fine to further
undergo SI for one year, for the offence punishable U/s
506-II IPC.
All the 3 sentences shall run concurrently, subject
to benefit of section 428 Cr.P.C."
2. Brief facts of the case are as under:-
"(i) That DD No. 7-A was registered at Police Station
Sultan Puri, on 27.12.1996, in receipt of the information
that some incident has occurred at H. No. A-33,
Mange Ram Park, BudhVihar. The said DD was marked
to SI Ram Pal Singh(PW-14), and accordingly SI Ram
Pal Singh along with the other police staff arrived at the
spot. On their arrival, a semi naked dead body of a girl
named Deepika was found lying on a bed with injuries
present on her neck. Statement of all the family members
were recorded wherein Diwakar (brother of the
deceased) deposed that on 26.12.1996, he along with his
sister Deepika and his brother Amit were sleeping in
H.No. A-33 Mange Ram Park, BudhVihar and the
accused Ichcha Ram was sleeping in another room of
the same house. During the night, he heard the noise of
his sister wherein he saw that the accused Ichcha Ram
was lying on his sister and was committing penetrative
sexual assault with her. On the following instance when
he tried to intervene, the accused throttled his neck and
threatened to kill him, due to which his body became
insensate.
(ii) Based on his statement recorded and the inspection
of the dead body, FIR No. 1488/1996, was registered
under Section 302/376/506-II of the IPC. On the same
day, accused Ichcha Ram was arrested, his underwear
was seized vide seizure memo Ex.PW5/D and was
thereafter medically examined.
(iii) After committal, arguments on the point of charge
were heard and charges u/s 302/376/506-II IPC were
framed against the accused, to which he pleaded not
guilty and claimed trial."
3. To bring home the guilt of the accused the prosecution has examined
17 witnesses in all. Statement of the accused was recorded under
Section 313 of Code of Criminal Procedure wherein he claimed
innocence and stated that he has been falsely implicated in the
present case. The appellant chose to produce DW-1 Ms. Suman in his
defence.
4. Mr. Bipin Kumar learned counsel for the appellant, opened his
submissions by contending that the impugned judgment dated
28.02.2004 is based on conjectures and surmises and the same is
against the facts and the settled proposition of law; that the learned
Trial Court has ignored and omitted the material evidences and has
disregarded the cogent evidences in favor of the appellant; that there
are material contradictions in the testimonies of PW-3(Amit Pandey)
and PW-5(Diwakar); that the conduct of PW-5 (Diwakar), the
brother of the deceased is most unnatural and has been wrongly
relied upon by the trial court; that it is highly unrealistic that the
deceased and her brothers PW-3(Amit Pandey) and PW-5 (Diwakar)
were sleeping on the same bed and despite that the accused
committed rape and murder of the deceased; that the seizure of
underwear of the appellant is doubtful as no public witness has joined
the investigation; that the learned trial court has wrongly placed
reliance on the scientific evidence as well as serological report
produced by the prosecution; that the trial court fell into error by
disbelieving the testimony of DW-1 (Suman) who clearly deposed
that the accused was with her at the relevant time when the alleged
offence happened; that the report obtained by the prosecution (Ex
PW-12/A) in relation to matching finger print of the accused on the
body of the deceased is a fabricated and manipulated document as
PW-12 in his examination-in-chief has deposed that no chance prints
were found on the body; that the investigation in the case has been
conducted by an officer below the rank of an Inspector which is in
violation of departments own circular/practice directions where it has
been observed that the investigation in a murder case is to be carried
out by an officer not below the rank of Inspector and sought acquittal
of the accused.
5. Ms. Aashaa Tiwari, learned APP for State, on the other hand,
strongly refuted the submissions made by the counsel for the
appellant and submitted that the impugned judgment is based on
proper appreciation of facts and evidence and no interference in the
impugned judgment is called for by this court; that the statements of
prosecution witnesses and medical/scientific evidence are
corroborative in nature and the prosecution has been able to prove its
case beyond reasonable doubt.
6. We have heard learned counsel for the parties and have also perused
the material placed on record.
7. At the outset we deem it appropriate to peruse the testimonies of the
prosecution witnesses.
Prosecution Witnesses
8. The case of the prosecution is based on the testimonies of two eye
witnesses as such at the outset we deem it appropriate to peruse the
testimonies of PW-3 (Amit Pandey) and PW-5 (Diwakar Pandey).
PW-3 (Amit Pandey) during his examination-in-chief deposed as
under:-
"On the night of 26.12.96, I along with my brother
Diwakar Pandey and sister Deepika was sleeping in the
house of my relation Ichcha Ram who is present in the
Court today. I heard some noise and I and my brother
Diwakar woke up. I saw that accused Ichcha Ram
present in Court was pressing the throat of my sister with
one hand and pressing a pillow on his face with another
hand. My sister was moving her hands and legs and after
sometime, she stopped moving her hands and legs. When
we tried to stop Ichcha Ram, he threatened both of us
that in case we raise alarm, he would kill both of us and
after that he left for his room. My parents were sleeping
in our house which we have sold and which was opposite
to the house of Ichcha Ram and as that house was very
small. We three brothers and sisters were sleeping in the
house of Ichcha Ram. At dawn we went to our parents
and informed them as to what had happened and they
informed the police."
PW-3 (Amit Pandey) during his cross examination deposed as under:
"Iwas sleeping with Deepika on the bed and my brother
Diwakar was sleeping on the floor. We tried to save our
sister by removing the hands of the accused when he
extended the threat. After that we saw that our sister had
stopped moving her limbs, we did not sleep."
9. PW-5 (Diwakar Pandey),the brother of the deceased during his
examination-in-chief deposed as under:-
"On 26.12.98 in the night about 12-1 am I, my sister
Deepika and younger brother Amit were sleeping in the
room, which was taken from accused on rent and my
parents were sleeping in another house, which they have
already sold, which was opposite house No.A-33 and
there was a street between these two houses. In the
H.No.A-33, accused, his wife and two children were
residing. In the night, at about 12-1 am, I felt someone in
my room, so I awakened and I saw accused was lying on
my sister after opening his pant and underwear and my
sister was lying semi naked. Accused had pressed the
mouth of my sister with one pillow, with one hand and
with his second hand he pressed her throat and when I
tried to stop this, the accused threatened to kill me by
throttling my neck and due to this threat I kept mum and
thereafter, I saw that the hands and legs of my sister
were stopped moving and she became unconscious and
then accused put quilt on my sister and worn his pant and
underwear and went in his room after threatening me
and due to this I was frightened very much, as at that
time my parents were not there and I waited till morning,
as I was under fear that Ichcha Ram could kill me and
my brother and I saw that my sister has died. In the
morning, at about 6 am, accused again came in our
room and again threatened me. In the morning, I
narrated the whole incident to my parents, who called the
police."
During his cross examination PW-5 (Diwakar Pandey) deposed that:
"It is correct that the room in which the wife and
children of the accused were sleeping was adjacent to the
room from where we were sleeping. After the accused
left the room, I do not go to sleep but remained awake
and kept waiting for the day to begin and as soon as the
light was seen, I went to call my parents. The accused
was arrested by the police in my presence from his house.
The police did not seize the underwear of the accused in
my presence but taken in the house of the accused."
10. Further the Court, after going through the entire evidence must
form an opinion about the credibility of the witnesses and
otherwise also, in all criminal cases, normal discrepancies are
bound to occur in the depositions of the witnesses due to normal
errors of observation, namely, error of memory due to lapse of
time or due to mental disposition such as shock and horror at the
time of the incident. In case of Mritunjoy Biswas Vs. Pranab @
Kuti Biswas and Anr., reported at (2013) 12 SCC 796, the Apex
Court held as under:
"28. As is evincible, the High Court has also taken note
of certain omissions and discrepancies treating them to
be material omissions and irreconcilable discrepancies.
It is well settled in law that the minor discrepancies are
not to be given undue emphasis and the evidence is to
be considered from the point of view of trustworthiness.
The test is whether the same inspires confidence in the
mind of the court. If the evidence is incredible and
cannot be accepted by the test of prudence, then it may
create a dent in the prosecution version. If an omission
or discrepancy goes to the root of the matter ushers in
incongruities, the defence can take advantage of such
inconsistencies. The omission should create a serious
doubt about the truthfulness or creditworthiness of a
witness. It is only the serious contradictions and
omissions which materially affect the case of the
prosecution but not every contradiction or omission
(See Leela Ram vs. State of Haryana and another,
Rammi alias Rameshwar v. State of M.P. and
Shyamal Ghosh v. State of West Bengal).
11. From the perusal of the testimonies of the PW-3 (Amit Pandey) and
PW-5 (Diwakar Pandey), brothers of the deceased, it is evident that
despite minor contradiction their testimonies are consistent and
corroborate the testimonies of each other and are trustworthy.
Medical and Scientific Evidence
12. Having discussed the testimonies of PW-3 (Amit Pandey) and PW-5
(Diwakar Pandey), brothers of the deceased, we deem it appropriate
to examine the medical and scientific evidence adduced by the
prosecution.Dr. K.L. Sharma, SR. CMO, Subzi Mandi Mortuary,
Delhi conducted the post-mortem on the body of the deceased (EX.
PW-7/A) and during his examination-in-chief deposed as under:-
"Opinion
Cause of death was asphyxia as a result of manual throttling
by other party. Vaginal findings were consistent of sexual
intercourse. All injuries were ante mortem in nature and
were inflicted just before death. Injury No. 1 was sufficient
to cause death in ordinary course of nature, and time since
death was about 38 hours i.e. between 11 and 12 O'clock of
26.12.1996 and 27.12.1996 night."
13. Dr. K.L. Sharma, SR. CMO, Subzi Mandi Mortuary, Delhi during his
examination-in-chief also revealed the External and Internal Injuries
suffered by the deceased. The examining Doctor further conducted
the internal examination of the body of the deceased and revealed as
under:-
"External Injuries
The right thigh was laterally tilted and flexed over hip joint
and right leg was flexed at knee joint. The rigor mortis sat in
this position of the lower limbs. The salwar thread was open
and its limbs were struck at upper thighs.
Injuries
1. Multiple bruises were present over right side neck a bruise
line one above the other was transversely place in an area
of 10 X 7 cm, the upper line was placed below the angle of
mandible right side and the lower line of the bruise was at
the base of the neck. Total bruise lines were four.
Crecentic abrasions fused with each other over lying
downwards over right side neck. The livid due was present
over face and hands and their fingers.
2. Abrasion 1 X 1 cm over back of the right wrist.
3. Abrasion 1 X 1 cm over back of the right elbow.
4. Abrasion 1 X 1 cm over upper front of left leg.
Internal examination
Head and brain were normal. Neck showed the subcutaneous
bruising with subluxation of right superior cornu of hyoid
bone with seepage of blood around the tissues. The frothy
blood was present in wind pipe. There were blood spots seen
over membranes of the lungs. The lungs were profusely
oedematous and intensely congested, on cut oozed blood with
froth. The abdomen and its viscras were congested. The
stomach contained full of undigested food. The urinary
bladder was empty and the rectum was also empty. The
vagina showed fresh tear of hymen irregularly with bruising
of the posterior vestibule. The uterus was empty and normal."
14. Blood samples as well as samples of semen were lifted from the spot
and clothes of the accused, including his underwear were also sealed
by the Investigation Officer, PW-14 (Investigation Officer) which
fact was confirmed from the testimonies of PW-6 (Murari Lal), PW-5
(Diwakar). Mr. D.S. Chakutra, Senior Scientific Officer, Gr. -II,
Biology Division, CFSL, CGO Complex, Lodhi Road, New Delhi
entered into the witness box as PW-15 and proved the FSL report as
(EX.-PW-15/A) and (Ex.PW-14/F). As per scientific analysis report
(EX.-PW-15/A) 'Human semen was detected on Exhibits 1,2,3,4a,
4c, 5 and 6'. Relevant portion of (Ex.PW-14/F) reads as under:-:-
"
Exhibits Species of ABO Group
Origin Remarks
Semen Stains
1. Bed Sheet Human 'AB' Group
2. Underwear Human 'AB' Group
3. Piece of Human 'AB' Group
mattress
4a Salwar Human 'AB' Group
4c Underwear Human 'AB' Group
5 Vaginal Swab Human 'AB' Group
6 Public Hairs Human No reaction
"
15. Perusal of the postmortem of the deceased (EX. PW-7/A) shows
forcible sexual assault on the deceased. The postmortem report
further suggests that the death has been caused due to injuries
mentioned as 'Multiple bruises were present over right side neck a
bruise line one above the other was transversely place in an area of
10 X 7 cm, the upper line was placed below the angle of mandible
right side and the lower line of the bruise was at the base of the
neck'.The examining Doctor, PW-7, clearly opined that the deceased
was subject to sexual assault and 'Cause of death was asphyxia as a
result of manual throttling by other party'. The postmortem report
(EX. PW-7/A)supports the case of the prosecution and is in
consonance with the testimonies of PW-3 (Amit Pandey) and PW-5
(Diwakar Pandey), brothers of the deceased whereby they revealed
that they 'saw accused was lying on my sister after opening his pant
and underwear and my sister was lying semi naked. Accused had
pressed the mouth of my sister with one pillow, with one hand and
with his second hand he pressed her throat'.
Moreover, as per FSL report (EX.-PW-15/A) and(Ex.PW-
14/F) clearly depicts that the semen stains on the underwear of the
accused matched with the stains found on the salwar and underwear
of the deceased and points out towards the guilt of the accused
person in the commission of the crime for the offence punishable
under Sections 302/376/506-II of the Indian Penal Code.
16. In view of thepostmortem report(EX. PW-7/A)and scientific report
(EX.-PW-15/A) and (Ex.PW-14/F), it can be safely inferred that
there is no inconsistency between ocular testimony and medical
evidence/scientific evidence which point towards the guilt of the
accused. It further stands proved that the deceased was subjected to
sexual assault by the accused and during the scuffle he also
committed the murder of deceased which was witnessed by PW-3
(Amit Pandey) and PW-5 (Diwakar Pandey).
Delay in Registration of FIR
17. Learned counsel for the appellant contended that the time taken by
the complainant for registration of the FIR is unexplained by the
prosecution and the delay has been caused in order to falsely
implicate the accused. From the perusal of the testimonies of PW-3
(Amit Pandey) and PW-5 (Diwakar Pandey), brothers of the
deceased,it is evident that the incident took place in the midnight of
26.12.1996, whereas the information about the alleged incident was
reported to the police in the morning of 27.12.1996. As per the case
of the prosecution PW-3 (Amit Pandey) and PW-5 (Diwakar Pandey)
due to fear and darkness informed their parents about the alleged
incident in the morning of 27.12.1996 who were residing at
HouseNo. 41, Mange Ram Park which was opposite to
House No. A-33, Mange Ram Park where the alleged incident took
place.
18. The Apex Court in Palani vs. State of Tamil Nadureported in
2018(15)SCALE178, has held that delay on the part of an eye-
witness, reeling under the shock of witnessing a crime, to register an
FIR instantly cannot be fatal to the prosecution case. Relevant part
has been reproduced hereunder:
"Delay in setting the law into motion by lodging the
complaint is normally viewed by the courts in suspicion
because there is possibility of concoction of evidence
against the accused. In such cases, it becomes necessary
for the prosecution to satisfactorily explain the delay in
registration of FIR. But there may be cases where the
delay in registration of FIR is inevitable and the same
has to be considered. Even a long delay can be condoned
if the witness has no motive for falsely implicating the
accused. In the present case, PW-1 had no motive to
falsely implicate the accused. As pointed out earlier, PW-
1 seeing her own son being brutally attacked, the effect of
the incident on the mind of the mother cannot be
measured. Being saddened by the death of her son, it
must have taken sometime for PW-1 to come out of her
shock and then proceed to police station to lodge the FIR.
The delay of two and half hours in lodging the complaint
and registration of FIR and the delay in receipt of the
FIR by the Magistrate was rightly held as not fatal to the
prosecution case."
19. Delay in lodging the first information report quite often results in
embellishment which is a creature of afterthought. On account of
delay, the report not only gets bereft of the advantage of spontaneity,
dangers creeps in of the introduction of coloured version,
exaggerated account or concocted story as a result of deliberation and
consultation. But even a long delay can be condoned if the witnesses
have no motive for implicating the accused and for when plausible
explanation is offered for the same. It is pertinent to note that the
brother of the deceased PW-3 (Amit Pandey) and PW-5 (Diwakar
Pandey) were aged 12 years and 16 years, respectively, when they
witnessed the alleged incident. To see one's sister being raped and
then brutally murdered is a horrifying sight and child of such tender
age cannot be expected to act normally.
20. In view of the settled provisions of the law as well as on the basis of
facts of the present case, the delay of few hoursin registration of the
FIR is not an inordinate delay, which could be construed as a ground
for acquittal of the accused, as the prosecution has been able to prove
its case beyond reasonable doubt.
Defective Investigation
21. The counsel for the appellant has further argued that the investigation
that was conducted by the police is a defective one, as the
investigation of murder case is to be conducted by an officer not
below the rank of Inspector whereas in the present case the officer of
the rank of Sub-Inspector conducted the investigation. As a general
principle, it can be stated that error, illegality or defect in
investigation cannot have any impact unless miscarriage of justice is
brought about or serious prejudice is caused to the accused.If the
prosecutioncase is established by the evidence adduced, any failure
oromission on the part of the Investigating Officer cannot render the
case of the prosecution doubtful (Amar Singh vs. Balwinder Singh,
AIR 2003 SC 1164). If direct evidence is credible, failure, defect
ornegligence in investigation cannot adversely affect theprosecution
case, though the court should be circumspectin evaluating the
evidence (Ram Bali vs. State of U.P. AIR 2004 SC 2329).
22. Moreover, PW-13 (Insp. Rai Singh) in his cross examination has
provided explanation with respect to appointment of Investigating
Officer in the present case which put a quietus to the present
controversy. The relevant portion of testimony of PW-13 (Insp. Rai
Singh) reads as under:-
"It is correct that we have an instruction from PHQ
that a case of murder cannot be investigated by an
officer below the rank of Ins. (vol. since I was already
busy in another murder case investigation, FIR No.
1481/96 u/s 302 IPC and therefore, I handover the
investigation of this case SI Ram Pal Singh who was
chowki Incharge and there was no other Insp. Posted
in my P.S.). This decision I have taken after discussion
with Sr. officer. All the Sr. officer i.e. ACP and DCP
were at the spot and they reached at 8 am."
23. The counsel for the accused further argued that no chance prints were
found at the spot of the alleged crime. The report of the Finger Print
Bureau is (Ex.PW12/A) which reflects that though proper procedure
was followed by the investigating agency, still no chance prints were
recovered from the spot. We have no manner of doubt that the
Investigating Agency obtained the samples in a scientific manner
which would have lent further support to the prosecution. There is
some substance in the grievance of learned counsel for the appellant
that the Investigating Agency did not obtain finger prints from the
place of incident. But, it is well settled that remissness and
inefficiency of the Investigating Agency should be no ground to
acquit a person if there is enough evidence on record to establish his
guilt beyond reasonable doubt. It is said by this court in a number of
cases that irregularities or deficiencies in conducting investigation by
prosecution is not always fatal to the prosecution case. If there is
sufficient evidence to establish the substratum of the prosecution
case, then irregularities which occur due to remissness of the
Investigating Agency, which do not affect the substratum of the
prosecution case, should not weigh with the Court.
24. The case of the prosecution is crystal clear from the testimonies of
the PW-3 (Amit Pandey) and PW-5 (Diwakar Pandey)which has
been corroborated with the medical evidence on record. Hence, such
irregularities cannot be deemed to be the sole basis for the acquittal
of the accused.
Conclusion
25. In the light of the above discussion, we find that the testimonies of
PW-3 (Amit Pandey) and PW-5 (Diwakar Pandey), brothers of the
deceased, are consistent, corroborative and trustworthy. There is
nothing on record to contradict the testimonies of PW-3 (Amit
Pandey) and PW-5 (Diwakar Pandey). The testimonies of both these
witnesses stood confirmed by the post-mortem report of the deceased
(EX. PW-7/A). The scientific evidence (EX.-PW-15/A) and
(Ex.PW-14/F) adduced by the prosecution in the form of the FSL
report establishes that the semen stains on the underwear of the
accused matched with the stains found on the salwar and underwear
of the deceased.
26. For the reasons stated above, we find no infirmity in the judgment
passed by the learned trial court and we see no reason to interfere
with the same. Accordingly, the present appeal stands dismissed.
27. Copy of the order be sent to Superintendent Jail, Tihar Jail.
28. Appellant is directed to surrender before the Trial Court forthwith.
SANGITA DHINGRA SEHGAL, J.
MANMOHAN, J.
MAY 20, 2019
SU
