Crl. Appeal No. 204 of 2002 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.APPEAL No.204/2002 % Date of Decision: 17.12.2008 Chander Dev Rai …. Appellant Through Mr.Sumeet Verma, Amicus Curiae along with appellant in person under judicial custody. Versus The State (NCT of Delhi) …. Respondent Through Mr.M.N. Dudeja, Additional Public Prosecutor. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE V.K. SHALI 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ANIL KUMAR, J. * 1. The appellant in the present appeal has challenged his conviction under Section 376 of Indian Penal Code and his sentence of life imprisonment and a fine of Rs.10,000/- in FIR No.832 of 1992, Police Station Shalimar Bagh, Delhi imposed by the learned ASJ, Tis Hazari Courts, Delhi. Crl. Appeal No. 204 of 2002 Page 2 of 23 2. The case of the prosecution was that on 28th November, 1999, Shri Ram Bahadur, father of the two-year old prosecutrix, Pooja had come to House No.564, Gali No.6, Ambedkar Nagar, along with his wife to attend the Chati ceremony at the house of the son of his Chacha, named Pramod. On the said day, at about 7.00 PM, Shri Ram Bahadur found his daughter missing from the house. He along with other family members tried to search her but could not find her. At about 9.45 PM the cries of Pooja were heard coming from the house of the appellant which was in Gali No.6, Haidar Pur, Delhi. 3. When Shri Ram Bahadur, father of Pooja, came to House No.565 of the appellant, he found Pooja wrapped in a blanket. Along with Ram Bahadur his wife and other people of the locality had also come to the house of the appellant. Pooja, at that time, was bleeding from the vagina and a call was made to Phone No.100. The police vehicle, which had come pursuant to the call made to phone No.100, took Pooja to Bara Hindu Rao Hospital along with wife of Ram Bahadur. DD No.48B was recorded and the investigation was handed over to SI Tejpal Singh who along with Constable Umender Singh, reached the House of the appellant and found many people gathered there. When SI Tejpal Singh Crl. Appeal No. 204 of 2002 Page 3 of 23 and Constable Umender Singh reached the house of the appellant, they came to know that Pooja had already been taken to Bara Hindu Rao Hospital. Statement of Ram Bahadur was recorded and thereafter, an FIR under Section 376 of Indian Penal Code was registered by the local police and investigation handed over to SI Tejpal Singh. 4. During investigation scratches were found on the abdomen of two-year old girl, Pooja, and therefore, the nail clippings of the appellant were taken. Besides the prosecutrix, Pooja, the accused was also medically examined and the CFSL Report and FSL Report were also obtained with regard to the various articles like garments etc. which were seized from the spot. The charge was framed against the appellant on 3rd May, 2000 as under:- “That on 28th November, 1999 between 7.00 PM to 9.45 PM at House No.565, Gali No.6, Ambedkar Nagar, Haidar Pur, Delhi, you committed rape on Kumari Pooja, aged two years, daughter of Shri Ram Bahadur and thereby committed an offence punishable under Section 376 of IPC”. 5. The appellant pleaded not guilty to the charge and claimed trial. The prosecution in order to prove the case examined father of the prosecutrix, Pooja, Shri Ram Bahadur, as PW-1; his wife Kusum, Crl. Appeal No. 204 of 2002 Page 4 of 23 mother of Pooja, was examined as PW-2; Pramod, son of the uncle of the father Ram Bahadur, was examined as PW-3; Constable Umender Singh as PW-6 and SI Tejpal Singh as PW-14 and Shri Devender Sharma, Record Clerk as PW-7 in place of Dr.Sapna. Prosecution examined in all 14 witnesses and the statement of the accused under Section 313 of the Criminal Procedure Code was also recorded. 6. We have heard the learned counsel for the parties and have also perused the testimonies of witnesses and documents. Learned counsel for the appellant, Mr.Verma, has very emphatically contended that there is no evidence to connect the appellant with the offence alleged to have been committed by him. According to him, there is no direct evidence and mere suspicion cannot take the place of proof. It is contended that there are no such complete chain of circumstances established from which the guilt of the appellant can be inferred conclusively. 7. Learned counsel has also challenged the modality of proof of the MLCs of the accused and the prosecutrix by a Record Clerk, Shri Devender Sharma, who was also examined twice in place of the concerned doctors. Reliance in this regard was placed on Sher Singh v. Crl. Appeal No. 204 of 2002 Page 5 of 23 State, 1995 JCC 259, to contend that it is not at all appropriate to examine a Clerk from the hospital to prove handwriting and signatures of the Doctors without making sufficient enquiries about the whereabouts of the concerned doctors. It was asserted by the learned counsel that the investigating officer should have made inquiries to trace Dr.Sapna, who had examined the prosecutrix and prepared the MLC or some other doctor acquainted with the handwriting and signatures on the medical report from the hospital. It was argued that the examination of some other Doctor could be of assistance to the cause of justice and not the examination of a record clerk. On behalf of the appellant, recalling of the said record Clerk, as he was first examined on 19th April, 2001 and then again recalled for examination on 3rd July, 2001, has also been challenged. Learned counsel for the appellant has also contended that the circumstances in the present case do not fully establish the guilt of the appellant. 8. According to him, another hypothesis is also possible, as it has not been established that the prosecutrix was picked up by the appellant at about 7.00 PM, as no person including the children with whom Pooja was playing had been examined to show that it was the appellant only who had picked her up from the place where she was playing. It is contended that the version as given by the appellant that Crl. Appeal No. 204 of 2002 Page 6 of 23 he found her loitering and crying and, therefore, he took her to his home is also plausible and feasible. It is asserted that no blood and skin tissues were recovered from the nails of the appellant though there were marks on the abdomen of prosecutrix to connect him with the marks on the abdomen of the prosecutrix. Consequently the marks on the abdomen of the prosecutrix could not be attributed to had been caused by the appellant. 9. Further on the vaginal swab no semen of the accused was found and in the circumstances there is no evidence to link the appellant to the fact that it was he who committed rape of the minor girl. Mere recovery of the minor girl from his house does not establish that she was raped by her when neither the scratches on her abdomen can be connected to him nor any semen was found on the vaginal swab of the minor girl. 10. Learned counsel has also contended that the appellant was living with his daughter and wife in one room tenement and that they were present there and therefore, in these circumstances, it was highly improbable that he would have committed rape of two year old girl. Learned counsel has also contended that there were no injury marks on Crl. Appeal No. 204 of 2002 Page 7 of 23 the mail organ of the appellant and merely because there were semen stains on his dirty undergarment, no inference, could be drawn against the appellant that he had committed the rape. 11. The pleas and contentions on behalf of appellant are refuted by the learned Additional Public Prosecutor, Mr.Dudeja, contending that there was no delay in registering the FIR and the accused was arrested from his residence from where the prosecutrix was found crying and also bleeding from her private part. It was also urged by him that semen stains were found on the undergarments of the appellant which clearly shows overwhelming circumstantial evidence on the basis of which an irresistible conclusion could be drawn that it was appellant alone who had committed this ghastly crime. Referring to the statement of the appellant under Section 313 of Criminal Procedure Code, it is contended that it was a bland and pure denial which is an additional link pointing to the guilt of the accused. Emphasis was also laid on the unnatural conduct of the accused of washing the pajama of the prosecutrix. Learned Prosecutor contended that since the prosecutrix was recovered from the appellant, there was no need to examine any other children with whom she was playing on the fateful day. In the circumstances, it is contended that the evidence against the appellant Crl. Appeal No. 204 of 2002 Page 8 of 23 is sufficient to prove his guilt beyond reasonable doubt and he has been rightly convicted. 12. Sh. Ram Bahadur, father of the prosecutrix, who was examined as PW.1 stated that he is a rickshaw puller and his daughter went missing at about 7 PM. At about 9 PM three houses away from the house of his brother Prem, the cries of Pooja were heard and therefore he along with other persons who had been searching for her reached the house of the appellant. There he found his daughter wrapped in some cloth and she was bleeding and the appellant was in the room. According to him appellant was beaten by the public and his kacha (undergarment) was seized. The accused/appellant had also produced the pyjami (kachi) of Pooja, which was also seized. In his cross examination he admitted that he cannot tell the names of any of the persons who had accompanied him to the house of the accused after hearing the cries of his daughter. He denied the suggestion that wife of the appellant and his minor daughter was also present in the room. He also specifically denied the suggestion that the appellant had tried to locate the parents of the prosecutrix and only when he failed to do so did he take her to his room. The wife of PW.1 and mother of the prosecutrix namely Kusum, was examined as PW.2. Though PW.1 had stated that he found Pooja at about 9 PM, however, his wife deposed Crl. Appeal No. 204 of 2002 Page 9 of 23 that the cries of Pooja were heard at about 9.45 PM when she along with her husband and other persons had gone to the house of the accused. She deposed that the daughter Pooja was wrapped in a blanket and she was bleeding from her vagina. She had identified the pyjami of her daughter which Pooja was wearing at the time she went missing. She, however, admitted that the appellant is a married person and has one daughter and that his wife is alive. 13. The son of the uncle of the father of prosecutrix, Pramod Kumar deposed that on that fateful day the prosecutrix along with her parents had come. He deposed that at about 7 PM when they were busy in Bhoj, Pooja was playing with other children and she went missing. He also deposed that her cries were heard at about 9.45 PM and after hearing the cries he along with other persons went to the room of the accused and one woman went inside the room and collected Pooja who was wrapped in a blanket and thereafter, other persons went into the room. He, however, admitted that the appellant is a married person and he has a wife and a daughter aged about 7 to 8 years. He also admitted that there were no complaints received against the appellant regarding anything in the past. He, however, denied the suggestion that the appellant had picked up Pooja as she had been lost and as she was on crying on the road. He also denied that the appellant had not been Crl. Appeal No. 204 of 2002 Page 10 of 23 aware of the parents of the child and he had brought her to his house in order to restore her to her parents. He stated that the blanket in which Pooja was wrapped was having some blood which was not seized by the police. He denied the suggestion that the appellant has been implicated only on the basis of suspicion. 14. Constable Omender Singh who appeared as PW.6 deposed that when he reached the house of the appellant along with SI Tejpal Singh, PW-14, a huge crowd had gathered there and the appellant was in the clutches of public and Pooja had already been removed by a PCR van to the hospital. It was deposed that the appellant was arrested at the spot vide memo exhibit PW.1/F and his arrest memo, exhibit PW.1/G, was prepared. According to his deposition he remained there till morning of 29th November, 1999 and he along with Constable Prem Chand had taken the appellant for medical examination. In the cross examination the said constable deposed that he had reached the spot at about 11.35 PM and there were about 30 to 40 persons present. He also admitted that the IO, however, did not record the statement of anyone. Crl. Appeal No. 204 of 2002 Page 11 of 23 15. To prove the MLCs pertaining to Pooja, Sh.Devender Sharma, Record Clerk, HRH, Delhi was examined who deposed that Dr.Charu Gupta had left the services of the hospital and he proved the MLC No.16712/99 as exhibit PW.7/A. He proved the MLC No.16717 of the appellant as PW.7/B. This witness was re-summoned on the ground that Dr.Sapna was not available in the hospital. He deposed that he had seen the back of MLC No.16712/99 of Pooja and he proved the report of Dr.Sapna as exhibit PW.7/C. According to him the whereabouts of Dr.Charu Gupta and Dr.Sapna were not available. 16. The prosecution examined Sh.Tejpal Singh as PW.14 who had cut the long nails of the accused and had seized the cut nails vide seizure memo exhibit PW.4/A. He also deposed that he had reached the spot at about 11.45 AM. He however admitted that the pyjami of the girl was seized at about 4.30/5 AM. He volunteered that the pyjami was washed by the accused. He also admitted that he did not ask any public person to join the investigation. He however deposed that when the pyjami was seized the accused was in his custody and in his house and his wife and his small child was also present. He deposed that he had cut the nails of the accused in the hospital at about 2 PM. Crl. Appeal No. 204 of 2002 Page 12 of 23 17. The appellant in his statement under Section 313 denied the incriminating evidence put to him as incorrect. He also gave an explanation that he had picked up the girl from a shop in Gali No.5 where she was crying. According to him he enquired about the parents of the girl, but as he was not able to gather any information regarding them, he brought her to his house. At his house, she had passed stool so he threw her pyjami and gave her a pyjami of his daughter who was 6 years old. He stated that many people who came to his house were drunk and snatched the girl from him and that he has been falsely implicated in this case. He contended that the police made him wash the pyjami of that small girl and after drying the same, it was seized from him. 18. From the arrest memo exhibit PW.1/G it is apparent that the appellant was arrested at 4 AM on 29.11.1999 and at that time his wife Smt. Raj Kumari was the person to whom intimation about his arrest was given. The MLC report of the prosecutrix, exhibit PW.7/C, also discloses that scratches were present on her abdomen. From the FSL report, exhibit PW.8/A, it is apparent that no skin tissues were detected from the nail clippings of the accused and even the garments of the Crl. Appeal No. 204 of 2002 Page 13 of 23 prosecutrix had no semen. However, on the dirty underwear, Ex.P4, of the appellant, semen stains were found. From the FSL report, exhibit PW.8/B, it is apparent that there was no semen on the clothes of the prosecutrix. 19. From the perusal of the evidence and some of the relevant documents it is clear that there is no evidence which will show conclusively that the appellant had raped the prosecutrix. It is no more res integra that to base a conviction on circumstantial evidence alone, not only the chain must be complete but the evidence should point inevitably to the conclusion that it was the accused and the accused alone who was the perpetrator of the offence and any other evidence which is brought on record should be incompatible with the innocence of the accused. For bringing home the conviction on the basis of circumstantial evidence, the facts on the record should be consistent with the guilt of the accused and should be incapable of being explained on any other reasonable hypothesis other than that of his guilt. 20. No doubt the prosecutrix was found in the room of the appellant at 9.45 PM and at that time she was wrapped in a blanket and she was bleeding from her vagina, which is one of the solitary piece of Crl. Appeal No. 204 of 2002 Page 14 of 23 circumstance against the appellant but there is no other incriminating evidence which would connect the appellant to the commission of the crime. Missing links or evidence in this case are absence of semen stains either on the garment or the undergarment of the prosecutrix or on her private parts. Absence of forensic evidence to connect the appellant with the injuries found on the abdomen of the prosecutrix despite taking the nail clippings of the appellant and analyzing them for any skin tissues and/or blood of the prosecutrix. Not associating any person from the public with the recovery or the arrest of the appellant despite the fact contended by the prosecution that about 30 to 40 persons had gathered at the spot. Prosecution failing to establish that the appellant was alone at that time and his wife and daughter were not present at the time of alleged commission of offense. No conclusive evidence to show that the girl was with the appellant from 7.00 P.M when she was allegedly lost till 9.45 P.M when she was recovered from his room. The appellant has contended that he found the girl crying on the road and as he could not trace her parents he brought her home. Though the parents of the girl have denied that the wife and the child of the appellant were present when they went to pick up the girl after hearing her cries, however, from the arrest memo and the testimonies of SI Tejpal Singh, it is apparent that the wife and one small child of the appellant were present at the place of incident around the time when Crl. Appeal No. 204 of 2002 Page 15 of 23 the offence is purported to have been committed. This is not the case of the prosecution that the wife and child of the appellant came later on. The witness PW.1 in his statement did not say that the accused wife and child were not present but only denied the suggestion to this effect in the cross examination. The other witnesses PW.2 and PW3 did not say that the wife and child of the appellant were not present. From the testimony of the PW.3 other fact which emerges is that the appellant was living in one room tenement with his wife and child and there were no complaints of any type against the appellant in the past. None of the witnesses could say that the appellant had raped the prosecutrix. The consistent testimony of these witnesses is that girl Pooja was recovered from the house of the appellant at about 9.45 P.M and at the time of recovery she was wrapped in the blanket and she had bled from her vagina. The blanket in which she was found wrapped was not seized by the prosecution. 21. This is also no more res integra that examination of the accused under Section 313 of the Code is not a mere formality and the answers given by him have a practical utility for the criminal Courts. The statement under Section 313, apart from affording an opportunity to the accused to examine incriminating circumstances against him, also help the Court in appreciating the entire evidence adduced in the Court Crl. Appeal No. 204 of 2002 Page 16 of 23 during the trial. It also cannot be doubted that it is permissible for the Court to rely on a portion of the statement of the accused inconsistent with other evidence against him led by the prosecution, but his statement has to be considered in the light of the evidence adduced by the prosecution and weighing his statement with the probability of the case. The accused/appellant in his statement under Section 313 has categorically stated that he had picked up the prosecutrix from near a shop in Gali No.5 where she was crying and as he could not find out about her parents and he brought her to his house. He also stated that he had to change her pyjami as she had passed stool in it. He has also deposed that many persons who came to his house to take the girl were drunk and falsely implicated him. He also deposed that police made him wash the pyjami of the small child which after drying was seized from him by the police. 22. On a perusal of the evidence of PW.1, PW.2, PW.3 and the police constable, the version propounded on behalf of the appellant, that he found the girl crying on the road and as he could not ascertain about her parents he brought her home where his wife and daughter were present does not appear to be ex-facie improbable. The evidence adduced by the prosecution is not sufficient to discard this version of the appellant. This fact that his wife and daughter were present has Crl. Appeal No. 204 of 2002 Page 17 of 23 been acknowledged by the police officials. The appellant is staying in a one room tenement and it is improbable that the wife and the child of the appellant were not present at the time he had brought the prosecutrix home. This is not the case of the prosecution that the wife and the child of the appellant had come later on after the prosecutrix was recovered from his house. Though there were nail marks on the abdomen of the prosecutrix, however, no skin tissues or blood of the prosecutrix were found from the nail clippings of the appellant. In the circumstances, it cannot be inferred that the scratch marks on the abdomen of the prosecutrix were on account of any act imputable to the appellant. The vaginal swab of the prosecutrix also does not show the presence of semen of the accused. The garments and undergarments of the prosecutrix also does not have semen marks and of course not of appellant. 23. Merely because the semen stains were present on the dirty underwear of the appellant, nothing adverse can be inferred against him who