Delhi High Court
Bindadin vs State on 6 May, 2013
Author: Ved Prakash Vaish
Bench: Sanjiv Khanna, Ved Prakash Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 359/1998
Reserved on: 18th April, 2013
% Date of Decision: 6th May, 2013
BINDADIN ..... Appellant
Through: Mr.Vishal Sehijpal, Adv.
Versus
STATE ..... Respondent
Through: Mr. Sanjay Lao, APP for the State. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE VED PRAKASH VAISH VED PRAKASH VAISH, J:
1. The appellant Bindadin challenges the correctness of the judgment dated 25.5.1998 in Sessions case No.17/96 arising out of FIR No.47/93 registered at Police Station Anand Vihar whereby he has been convicted under Section 302/376 Indian Penal Code, 1860 (IPC). Vide order on sentence dated 26.05.1998, the appellant has been sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-, in default he is to undergo further rigorous imprisonment for six months under Section 302 IPC and to undergo rigorous imprisonment CRL.A. No.359/98 Page 1 of 21 of ten years and a fine of Rs.5,000/- and in default to further undergo rigorous imprisonment for another three months under Section 376 IPC. Both the substantive sentences shall run concurrently but the sentences in default shall run one after the other after the expiry of the period of substantial sentences.
2. The allegations against the appellant/accused are that on 13.2.1993 at House No.33, Dayanand Vihar, Delhi, he committed rape and murder of „X‟(assumed name), aged about 19 years. The prosecution examined as many as 21 witnesses to substantiate the charges. In his statement under Section 313 Cr.P.C., the appellant pleaded false implication. He, however, did not prefer to lead evidence in defence. On appreciating the evidence and considering the rival submissions of the parties, learned Trial Court vide impugned judgment held that appellant is the perpetrator of the crime and sentenced him. Being aggrieved, the present appeal has been preferred.
3. Learned counsel for the appellant submitted that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error by relying upon the testimonies of Shanti (PW-1) and Asha (PW-2), who were interested witnesses. There was no direct CRL.A. No.359/98 Page 2 of 21 evidence against the appellant and the prosecution case is entirely based on circumstantial evidence. The Trial Court overlooked the fact that the appellant had already left the job as Chowkidar of the said house before the incident and, therefore, there was no possibility that the appellant could be involved in the crime. Moreover, prosecution did not establish that the appellant was present in the house. The complainant-Sharwan Kumar (PW-4) himself was a primary suspect and being affluent and well off, he was instrumental in the arrest and implication of the appellant. Further, the incident had occurred in the house of the complainant (PW-4). There was no evidence that the victim was seen going in the appellant‟s room any time. No independent witness from the public was produced. Vital discrepancies and contradictions in the testimonies of the prosecution witnesses regarding the manner in which the appellant was arrested and clothes were recovered from his room were ignored. Semen spots were not found on the victim‟s clothes.
4. We have considered the submissions made by the learned counsel for the appellant and Additional Public Prosecutor for the State and have carefully examined the records.
CRL.A. No.359/98 Page 3 of 21
5. At this stage, it would be relevant to notice the five golden principles, which have to be kept in mind while examining cases of circumstantial evidence as elucidated by the Supreme Court in Sunder @ Sundarajan vs. State by Inspector of Police, (2013) 2 Scale 204. These are as under:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that 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 Sahebrao Bobade v. State of Maharashtra : 1973CriLJ1783 where the following observations were made:
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 'may be' 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 CRL.A. No.359/98 Page 4 of 21 human probability the act must have been done by the accused.
These five principles, if we may say so, are the Panchsheel of the proof of a case based on circumstantial evidence. Each and every incriminating fact or circumstance must be clearly established by reliable and clinching evidence. The circumstances so proved must cumulatively form a chain of events from which the only irresistible conclusion, which can be drawn is that the accused is guilty and no other hypothesis against the guilt is possible. Other possibilities will result in acquittal by giving benefit of doubt. In the aforesaid decision the Supreme Court cautioned that in a case where prosecution relies upon circumstantial evidence there is always a danger that conjecture or suspicion may take the place of legal proof. Therefore, while examining various circumstances in the chain of evidence, the Court should be satisfied that the chain of event is complete as to rule out reasonable likelihood of the innocence of the accused. When an important link is missing or is unreliable, the chain of circumstances may get snapped resulting in benefit of the accused. Suspicion should not take place of legal proof and the difference between „may be true‟ CRL.A. No.359/98 Page 5 of 21 and „must be true‟ should be kept in mind as the same divides conjectures from sure conclusions.
6. The prosecution version is that DD No.4A (Ex.PW16/A) was recorded at 9.45 p.m. on 14th February, 1993 at Police Station Anand Vihar by Head Constable Sarju Singh (PW-16) to the effect that one Sharwan Kumar had informed on telephone that his Chowkidar was missing and his room was locked from outside and on the cot inside the room a lady was lying. The said DD was marked to SI Vijay Pal Singh (PW-20), who along with Constable Subhash Chand (PW-5) went to the spot. On the way, Inspector Narender Kumar Verma, SHO (PW-21) along with other staff met them near Village Karkardooma. At the spot they met Sharwan Kumar (PW-4), who took them to the room on the first floor of House No.33, Dayanand Vihar. The lock outside the room was broken and a dead body of a girl aged about 18-19 years having strangulation marks on the neck was found lying on the cot. Inspector Narender Kumar Verma (PW-21), the Investigating Officer made an endorsement and the FIR No.47/1993 was registered. The appellant was arrested on 19th September, 1993 from Shahdara Railway Station and his disclosure statement (Ex.PW14/A) was recorded. Upon CRL.A. No.359/98 Page 6 of 21 completion of investigation, appellant Bindadin was charge-sheeted and brought to trial.
7. There is ample evidence and material to show that appellant Bindadin was working as personal Chowkidar of Sharwan Kumar (PW-4) at the house in question i.e. 33, Dayanand Vihar, Delhi. We have statement of the owner Sharwan Kumar (PW-4), mother, sister and father of the deceased, namely, Shanti (PW-1), Asha (PW-2) and Ram Swarup (PW-9), respectively, to the said effect. The aforesaid statements are also corroborated in the form of the first information [i.e. DD No.4A (Ex.PW16/A)], which was recorded on the statement by Sharwan Kumar (PW-4) on telephone at 9.45 a.m. on 14th February, 1993 by Head Constable Sarju Singh (PW-16). In DD No.4A (Ex.PW16/A) the appellant was described as personal Chowkidar of PW-4. Statement of the Inspector Narender Kumar Verma (PW-21), the Investigating Officer corroborates and supports the said factual position. In fact, the appellant in his statement under Section 313 Code of Criminal Procedure, 1973 (Cr.P.C.) has accepted that he was working with PW-4 as a Chowkidar, but had claimed that he had left the services on 8th February, 1993 i.e. one week before the occurrence. CRL.A. No.359/98 Page 7 of 21 We will examine the said averment below, but suffice it is to notice at this stage that the appellant did not lead any defence evidence.
8. The present case is based upon circumstantial evidence as there is no eye witness to the actual occurrence, therefore, we have to rule out possibility of a third person‟s involvement as the perpetrator of the crime. As noticed above, the primary contention of the appellant is that PW-4, the complainant could have been the perpetrator of the crime as the murder and the offence under Section 376 IPC had taken place in his house. Reliance is placed upon the testimonies of PW-1, 2 and 9 to the effect that the deceased had informed PW-2 that the appellant and PW-4 used to tease or behave in a funny manner with the deceased. Our attention is specifically drawn to the statement of Asha (PW-2), sister of the deceased, who has deposed that her sister-the deceased had informed her that PW-4 would not go out of the room when she used to work and would tease her and praise her for being beautiful. PW-2 and her sister had tried to tell this to their mother on a number of occasions, but out of shame they remained quiet. PW-2 has deposed that the appellant also used to tease the deceased and threw drops of water on her clothes. It is also highlighted that PW-2 had deposed that on 13th February, 1993 at about 8.30 p.m or 9.00 p.m., she CRL.A. No.359/98 Page 8 of 21 along with PW-1 and PW-9 had gone to the house of PW-4 and pressed the call bell twice. The lights in the house were on but after pressing of the call bell, the lights went off. Thereafter, they came back to their own house. Three of them again next morning went to the house of PW-4 looking for the deceased and pressed the call bell. Wife of Sharwan Kumar (PW-4) came out and on inquiry informed them that deceased had gone back to her house yesterday. Thereafter, they came back to their house and started looking around for the deceased. After sometime police came and informed them that dead body of the deceased was found at House No.33, Dayanand Vihar, Delhi.
9. Ram Swarup (PW-9), father of the deceased has stated that on 14th February, 1993, he had gone with the police to the room on the upper floor of House No.33, Dayanand Vihar, where the appellant Bindadin used to reside. He knew Bindadin from before as he was the Chowkidar of the said Kothi. In the said room he saw dead body of his daughter. Constable Subhash Chand (PW-5) had first reached the house along with SI Vijay Pal Singh (PW-20) and Inspector Narender Kumar Verma (PW-21) after DD No.4A was recorded. PW-5 has deposed that on reaching the house they went to the upper floor and found that the room was locked and from the window it was noticed CRL.A. No.359/98 Page 9 of 21 that somebody was sleeping in a quilt. They broke the lock and found that the lady lying on the cot was dead. Lady was identified by PW-4 as the maid, who used to work in their house. Incriminating material, which was lying at the spot, was taken into possession. Rukka was prepared and FIR was registered. PW-20 has deposed on identical lines. PW-21, the Investigating Officer‟s statement on oath in the Court is equally specific that they broke the lock and entered the room on the upper floor of the house where dead body of the deceased was found on the cot. There is, therefore, ample material in addition to the statement of PW-4 to the effect that dead body of the deceased was found in the room, which was in occupation of the appellant-Bindadin. The room was locked from outside and lock was broken in order to gain entry when the police arrived.
10. From the statements of the aforesaid witnesses, it is clear that the appellant was missing and was not present at the spot when the dead body was found in the room at about 10.45 a.m., on 14th February, 1993. The appellant in his statement under Section 313 Cr.P.C. accepts the position that he was not present. He has stated that he had left the services on 8th February, 1993 and was arrested from his village on 10th September, 1993. PW-4, on the other hand, has specifically CRL.A. No.359/98 Page 10 of 21 stated that the appellant was his personal Chowkidar and the deceased was working as a maid, who used to come during the day time for washing utensils etc. One room on the first floor was provided to the appellant for his residence. On 11th February, 1993, PW-4 along with his family members had gone to Jaipur and the appellant was left behind and was given keys of main gate of the house. Deceased used to come to their house at noon time. Before leaving for Jaipur they had informed the appellant that they would come back on the night of 13 th February, 1993. The deceased had been instructed to carry out cleaning etc. of their house in their absence. He returned from Jaipur along with his family on 13th February, 1993 at 8.00 p.m. The main gate of the house was locked and the appellant was missing. They opened the door and presumed that the appellant had gone to some nearby place and would return soon. In the morning he went upstairs as the appellant was still missing. The room of the appellant was found locked from outside and when he peeped from the window he saw that someone was sleeping on the cot under a quilt. He knocked and called out several times, but there was no response. He accordingly became suspicious and made a telephone call to the police, who came and broke open the door. PW-4 was extensively cross- examined by the appellant. It was suggested to him that he was present CRL.A. No.359/98 Page 11 of 21 in the house on 13th and 14th February, 1993, but the said suggestion was denied. PW-4 was categorical that he along with his family members came back from Jaipur in the evening of 13th February, 1993. In the cross-examination he has deposed that his family consists of his wife, four daughters and a son. Out of four daughters, two were married. He has stated that he along with other family members i.e. his wife, two daughters, and a son had gone to Jaipur in a car. In the cross-examination, no suggestion was given to PW-4 and it was not alleged and put to him that the appellant had left the services on 8 th February, 1993. This is significant and important. In these circumstances, we feel that the statement of appellant Bindadin under Section 313 Cr.P.C., which was recorded on 2nd January, 1998 nearly eight months after PW-4 was cross-examined is a afterthought and shows a new stand, which was conveniently adopted and taken by the appellant at a subsequent stage. Asha (PW-2), who had deposed that the appellant used to work as a Chowkidar, was also not cross- examined and it was not suggested to her that the appellant had left services as Chowkidar on 8th February, 1993. Identically, no such suggestion was given to PW-9, who had stated that he knew the appellant, who was working as Chowkidar and used to reside on the first floor of House No.33, Dayanand Vihar where dead body of his CRL.A. No.359/98 Page 12 of 21 daughter was found. As noted above, in the first DD No.4A (Ex.PW16/A) recorded by Head Constable Sarju Singh (PW-16) it is mentioned that the Chowkidar-appellant was missing.
11. The abscondence of the appellant in the present case is an important and vital link to the chain of circumstances. The appellant was assigned duty and was employed as a Chowkidar to take care of the house. We are conscious and aware that mere abscondence itself does not necessarily lead to a conclusion that the person absconding was guilty. Abscondence at times can be explained as an act of self preservation. We are aware of cases where innocent persons have absconded because of panic and to evade arrest, though they were wrongly suspected. But each case has to be examined on its own facts, when the prosecution claims that the accused had absconded, and this was a vital link. Evidentiary value, which is to be attached, also depends upon circumstances and factual matrix of each case. In the present case abscondence of the appellant is relevant and material once we accept that the appellant was a Chowkidar and used to reside in the room on the upper floor of House No.33, Dayanand Vihar, where the dead body of the deceased was found on 14 th February, 1993 and the house owner and his family had gone to Jaipur on 11 th February, 1993 CRL.A. No.359/98 Page 13 of 21 to return only at night on 13th February, 1993. In the aforesaid factual matrix, the fact that the appellant was absconding is a relevant fact under Section 8 of the Evidence Act. His conduct becomes an incriminating circumstance against him. We clarify that we have not treated the abscondence as the sole or only reason to implicate and hold that the appellant is the perpetrator of the crime in question, but taken the cumulative effect of different incriminating facts against the appellant which have been proved. The said factum is an important and relevant link in the said chain.
12. PW-4 has categorically deposed that he along with his family members had gone to Jaipur on 11th February, 1993 and had returned at about 8.00 p.m. on 13th February, 1993. PW-1, 2 and 9 have deposed that in the morning of 13th February, 1993, the deceased had gone to the house No.33, Dayanand Vihar for doing household work. PW-2 and the deceased had together left home before they parted as PW-2 went to a different house to do household work. Thereafter, the deceased did not return home till about 7.00 or 8.00 p.m. PW-2 returned home at about 7.00 or 8.00 p.m. PW-2 and PW-9 have stated that they went to house No.33, Dayanand Vihar, the same night on 13th February, 1993. PW-9 has stated the house was found locked, but CRL.A. No.359/98 Page 14 of 21 lights were on and nobody responded. PW-2 has deposed that they pressed call bell twice. The lights were on, but later on went off when they pressed the call bell for the second time. She has also stated that they had gone to the house at 8.30 p.m. or 9.00 p.m., but the time mentioned it appears was mere estimation. PW-4 was residing in his house with her wife, two daughters and a son. Similar statement was made by him to the police on 14th February, 1993 to the said effect and it was highlighted that the appellant was missing from his house. This is clear from the cross-examination of PW-20, who had stated that they had interrogated PW-4 and he had stated that he had gone out of station and had returned. Though, he was not sure about the date and time when PW-4 had returned from Jaipur. PW-21, the Investigating Officer was more categorical and has stated that they had made inquiries from PW-4 about his visit and return from Jaipur. PW-4 has stated that he and his family members came back from Jaipur in the evening on 13th February, 1993. PW-4 was not directly cross- examined on his visit/trip to Jaipur from 11th February, 1993 to 13th February, 2013.
13. PW-1, 2 and 9 had grievance against PW-4 as they had lost the deceased. PW-2 has lost her sister and PW-1 and PW-9 have lost their CRL.A. No.359/98 Page 15 of 21 daughter for no fault of theirs. Her dead body was found in the House No.33, Dayanand Vihar, which belonged to PW-4. The deceased had gone to work in the house of PW-4. To some extent, therefore, they were angry and had grievance against PW-4. We have to rule out any possibility of PW-4‟s involvement in the said crime keeping in mind that he was the owner and would have made every effort to prevent his implication even if he had committed the crime. It is for this reason we have referred to the testimony of PW-4 that he and his family members were in Jaipur. PW-4‟s conduct and the observations of the police officers, who had interrogated PW-4 and verified whether he and his family were out of Delhi to rule out his involvement are clear, categorical and merit acceptance. The appellant while putting up an alibi or a defence to save himself did not specifically and in detail cross-examine PW-4 on the said aspect i.e. trip/visit to Jaipur.
14. Thus the deceased had come for work at house no. 33, DayanandVihar, Delhi on 13th Feburary,1998 and thereafter did not return home. On the said date and time the appellant, who was working as a watchman was alone and PW-4 and his family were not present. On 11th February,1998, PW-4, his wife and children had gone to Jaipur and had returned on 13th Feburary,1998 at about 8 P.M. When PW-4 CRL.A. No.359/98 Page 16 of 21 returned to Delhi, the appellant was missing. Next day in the morning, dead body of the deceased was found in the room on the first floor which was occupied by the appellant. The appellant had absconded and was arrested subsequently on 19th September, 1998. The victim, a young girl aged about 18/19 years, was sexually abused just before her death. The appellant had given a false explanation that he had left employment of PW-4, one week before the occurrence.
15. The unfortunate occurrence had taken place in the absence of PW-4, his wife and children. Occurrence of such nature in the presence of women and children in the house though not an impossibility, is remote and rather improbable. The appellant alone was present in the entire house when the deceased had come for work. What had happened thereafter and resulted in the death was within the personal knowledge of the person present i.e. the appellant. The appellant did not offer or give any plausible explanation as to the incident. He did not adduce any defence evidence that he had left the job and was present or working at a different place. As noticed above the appellant belatedly took the said stand in his statement under section 313 Cr.P.C. but did not cross examine or give the said suggestion to the employer PW-4.
CRL.A. No.359/98 Page 17 of 21
16. In a recent decision in Prithipal Singh etc. vs. State of Punjab and Others, (2012) 1 SCC 10, the Supreme Court while referring to the judgment State of West Bengal vs. Mir Mohammad Omar and Others, AIR 2000 SC 2988 observed that if a fact is especially in the knowledge of any person, then onus of proving that fact is upon him. It is impossible for prosecution to prove certain facts particularly within the knowledge of the appellant, when a third person‟s presence is ruled out. Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
17. On the question whether deceased had died a homicidal death and had been subjected to rape under Section 376, we have the post CRL.A. No.359/98 Page 18 of 21 mortem report (Ex.PW8/A). Post mortem was conducted by Dr. L.T. Ramani (PW-8) on 15th February, 1993 at JPN Hospital. The following injuries were found:-
1. five lenear crescentic abrasions 1 cm. long (finger nails marks) on the left side front of neck of the middle part.
2. Reddish bruise 3 cms x 2 cms on the left sub mandibular area
3. There was fresh tear of hymen of the posterior wall (6‟ O clock position with brusing of vaginal wall.
He opined that injuries over the neck were caused by strangulation and was sufficient in the ordinary course of nature. Death was due to asphyxia resulting from manual strangulation. Time since death was about 40 hours. He also opined that injury no.3 to the genetalia was also antemortem and suggested sexual assault. He proved the post mortem report Ex.PW8/A.
18. The Supreme Court in State of Himachal Pradesh vs. Lekh Raj and Others, AIR 1999 SC 3916 opined thus:-
"5. We are, however, of the opinion that the High Court was not justified in holding that the prosecutrix had not been subjected to forcible sexual intercourse or the prosecution had failed to prove the case against the respondent No. 1 also. To hold that the prosecution had not proved the case against the respondent, beyond reasonable doubt, the High Court mainly relied upon the medical evidence and finding that "no dead or alive spermatozoa were seen. Absence of CRL.A. No.359/98 Page 19 of 21 such dead or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix rules out the possibility of the prosecutrix having been subjected to sexual intercourse on the date and time alleged by the prosecution". Such a conclusion is not referable to any evidence on record. No such suggestion was put to the doctor nor any medical authority referred to in support of the conclusions arrived at by the High Court. This Court in State of Maharashtra v. Chandraprakash Kewalchand Jain relying upon medical evidence observed that "spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. If the prosecutrix washes herself by then, the spermatozoa may not be found. In that case the Court after satisfying itself regarding the presence of semen on the clothes of the prosecutrix held that "the absence of semen or spermatozoa in the vaginal smear and slides, cannot cast doubt on the creditworthiness of the prosecutrix.
6. Modi in his medical jurisprudence and toxicology has noted: " the presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days, and by Morrison (1972) upto 9 days in vagina and 12 days in the cervix. However, in the vagina of dead woman they persist for a longer period.
It follows, therefore, that the presence of spermatozoa, dead or alive, would different from person to person and its positive presence would depend upon various circumstances otherwise also the presence or absence of spermatozoa is ascertained for the purposes of corroboration of the statement of the prosecutrix."
19. In the instant case, however, medical examination of the victim was conducted approximately after about 40 hours and exhibits were sent to CFSL after 14 days. Even if spermatozoa could not be seen, this CRL.A. No.359/98 Page 20 of 21 does not justify rejection of the post mortem report and observations of the doctor PW-8. Observations in Lekh Raj's case (supra) are apposite.
20. In the light of the above discussion, the impugned judgment and sentence need no interference. The appeal of the appellant lacks merit and is hereby dismissed. The sentence and conviction of the appellant is sustained.
21. The appellant is directed to surrender within 10 days and serve the remainder of his sentence. The Registry shall transmit the trial court record to ensure compliance of the judgment.
(VED PRAKASH VAISH) JUDGE (SANJIV KHANNA) JUDGE MAY 06 , 2013 gm/NA CRL.A. No.359/98 Page 21 of 21