Raju vs State (Govt.Of Nct) Of Delhi & Anr on 17 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 28th OCTOBER, 2017
DECIDED ON : 17th NOVEMBER, 2017

+ CRL.A. 1145/2013
RAJU ….. Appellant
Through : Mr.K.Singhal, Advocate with Ms.Vani
Singhal, Advocate.
versus
STATE (GOVT.OF NCT) OF DELHI ANR…… Respondents
Through : Ms.Aashaa Tiwari, APP for the State.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR
S.P.GARG, J.

1. Aggrieved by a judgment dated 05.10.2012 of learned
Addl. Sessions Judge in Sessions Case No.156/2011 arising out of FIR
No.134/2011 PS Adarsh Nagar whereby the appellant – Raju was held
guilty for commission of the offences punishable under Sections
302/
377 IPC, he has preferred the instant appeal. By an order dated
20.10.2012, the appellant was sentenced to undergo imprisonment for
life with fine `1 lac under
Section 302 IPC and RI for ten years with
fine `10,000/- under
Section 377 IPC. The sentences were to operate
consecutively.

2. Briefly stated, the prosecution case as set up in the
charge-sheet was that on 23.05.2011 at an open field, Delhi Jal Board,

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near road No.51, Azadpur, the appellant committed murder of a boy
Sohan aged around ten years after committing carnal intercourse.

3. On 24.05.2011 at around 11.26 a.m. Daily Diary (DD)
No.10A (Ex.PW-5/A) came to be recorded at PS Adarsh Nagar, Delhi,
conveying information about dead body of a child aged around 8 / 10
years lying at the spot. The investigation was assigned to SI Chander
Bhan who along with Const.Pradeep went to the spot. Efforts were
made to identify the body but its identity could not be established.
Crime team and photographer were summoned at the spot. SI
Chander Bhan prepared rukka (Ex.PW-16/A) and lodged the FIR. The
investigation was taken over by PW-18 (Insp.Binod Kumar Singh).
Statement of the witnesses conversant with the facts were recorded.
Umesh Mukhiya, Chowkidar, informed the Investigating Officer that
he had seen the child Sohan in the company of the appellant Raju on
23.05.2011 at around 08.30 p.m. Efforts were made to find him out,
however, he was not traceable.

4. On 25.05.2011 post-mortem examination on the dead
body was conducted and the body was handed over to the legal heirs.
On 26.05.2011, the appellant was arrested from House No.221/6-6A,
Gali No.6, Vishnu Garden, Khyala, Delhi. Pursuant to the disclosure
statement (Ex.PW-13/G), the appellant recovered his underwear
having semen stains lying at a distance of 70 – 75 paces from the spot;
it was seized vide seizure memo (Ex.PW-13/I). During further
investigation, the exhibits were sent for examination to Forensic
Science Laboratory. Upon completion of investigation, a charge-sheet

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was filed against the appellant in the Court for commission of offences
under
Sections 302/377 IPC.

5. To establish its case, the prosecution examined eighteen
witnesses in all and relied on several documents. In 313
Cr.P.C.
statement, the appellant denied his involvement in the crime and
pleaded false implication; he did not produce any evidence in defence.
The trial resulted in conviction as mentioned previously. Being
aggrieved and dissatisfied, the instant appeal has been preferred.

6. We have heard the learned counsel for the parties and
have examined the file minutely. Homicidal death of the child Sohan
is not in dispute. The child’s body was found at an isolated spot. As
per post-mortem examination report (Ex.PW-11/A), cause of death
was asphyxia as a result of ligature strangulation inflicted by the other
party. Ligature mark was ante-mortem in nature and sufficient to
cause death in ordinary course of nature; time since death was
approximately 41 hours. It was further suggested that post-mortem
examination was consistent with sodomy before the victim’s death.
Apparently, it was a case of culpable homicide.

7. At the outset, it may be mentioned that the prosecution
case is based upon circumstantial evidence only. The appellant’s
conviction rests upon the material circumstance of ‘last seen’ with the
victim on 23.05.2011 at around 08.30 p.m.

8. Admitted position is that the appellant was distantly
related to the victim’s family; he used to frequently visit them. PW-13
(Achchey Lal Kushwaha) – victim’s father lived at House No.B-44,
Kewal Park, Azadpur, Delhi, with his wife and four children. His two

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co-brothers (Sadhoo) i.e. Bhura and Surender along with their families
also lived with him, his father-in-law – Har Lal Kushwaha also lived
there. The house was under construction; it was owned by PW-9
(Mahesh Chand Aggarwal). In his Court statement, he deposed that
on the night of 23.05.2011, he came to know from his watchman
Umesh Mukhiya working at the site that Achchey Lal Kushwaha’s son
was missing. He instructed Umesh Mukhiya to search the missing
boy and in case, he was not traceable, to inform the police. On
24.05.2011 when he visited the site, he came to know that Achchey
Lal Kushwaha’s son had been murdered and the body was lying in the
bushes near Delhi Jal Board. PW-13 (Achchey Lal Kushwaha) used
to work as labour at the said construction site. It is admitted that the
appellant was maternal uncle of Achchey Lal Kushwaha’s wife
Bhagwati and he lived at Vishnu Garden and worked as a mason.
Admittedly, he used to visit PW-13 (Achchey Lal Kushwaha)’s house.

9. On scanning the testimonies of various witnesses
examined by the prosecution, we are of the view that the prosecution
has failed to establish beyond reasonable doubt that the appellant was
‘last seen’ with the child Sohan on 23.05.2011. The child went
missing on 23.05.2011 in the evening. When victim’s parents came to
know that Sohan was missing, searches were made to find him but in
vain. Relevant to note is that the victim’s family did not opt to lodge
any ‘missing report’ of the child with the police on 23.05.2011. On
24.05.2011, the body was found at an open ground near road No.51,
Delhi Jal Board, Azadpur. Intimation to the police was conveyed by
one Sumit Bhardwaj on phone and DD No.10A (Ex.PW-5/A) came to

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be recorded at 11.26 a.m. The body could not be identified. Rukka
(Ex.PW-16/A) sent at around 02.40 p.m. reveals that no eye witness
was available at the spot. Apparently, the victim’s parents or PW-10
(Umesh Mukhiya) were not present at the spot when the rukka
(Ex.PW-16/A) was sent at 02.40 p.m. The body was sent for post-
mortem examination. Till the police remained at the spot on
24.05.2011, none of the family member of the victim contacted them.
It is not clear as to when PW-13 (Achchey Lal Kushwaha) came into
contact with the police and identified the body.

10. PW-13 (Achchey Lal Kushwaha) did not suspect the
appellant’s involvement in the crime on 24.05.2011. In the cross-
examination, he admitted that till 26.05.2011, he was not aware as to
who had killed his son. Inconsistent and conflicting version has
emerged on record in the testimonies of PW-13 (Achchey Lal
Kushwaha) and PW-18 (Insp.Binod Kumar Singh), the Investigating
Officer as to when Achchey Lal Kushwaha’s statement under
Section
161 Cr.P.C. was recorded. PW-18 (Insp.Binod Kumar Singh) claimed
that on 24.05.2011 when he reached the spot at around 04.00 – 04.30
p.m., SI Chander Bhan and Achchey Lal Kushwaha met him. At
around 05.00 – 05.15 p.m., he along with Achchey Lal Kushwaha and
Const. Puran went in search of Raju at Vishnu Garden but he could
not be found. He did not clarify as to when Achchey Lal Kushwaha’s
statement under
Section 161 Cr.P.C. was recorded. Trial Court record
reveals that his statement came to be recorded under
Section 161
Cr.P.C. on 24.05.2011 and Achchey Lal Kushwaha informed the
investigating agency that the child was ‘last seen’ with the appellant

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Raju. Needless to say Raju was a suspect on 24.05.2011. However,
no sincere efforts were made to apprehend him on 24.05.2011. PW-13
(Achchey Lal Kushwaha) categorically admitted that he did not visit
the appellant’s house on 24.05.2011. In the cross-examination, he was
fair enough to inform that he did not visit the appellant’s house on
23.05.2011 or 24.05.2011. He further clarified that he went to the
appellant’s house only on 26.05.2011 with the police. This contradicts
the statement given by PW-18 (Insp.Binod Kumar Singh) about his
visit along with Achchey Lal Kushwaha to the appellant’s house on
24.05.2011. Had the victim’s father Achchey Lal Kushwaha
suspected Raju’s involvement on 24.05.2011, there was no occasion
for him not to visit his house soon after the child went missing.
Appellant’s house was not at far away. The natural reaction of the
victim’s family could have been to contact Raju at first instance to
find out as to where the child was. Strange enough, no attempt
whatsoever was made to contact the appellant to ascertain the
whereabouts of the child; he was not even contacted after the body of
the child was found. It raises serious doubt if the child was seen in the
company of the appellant soon prior to his homicidal death.

11. The prosecution has heavily relied upon the testimony of
PW-10 (Umesh Mukhiya) who worked as a chowkidar / watchman at
House No.B-44, Kewal Park, Azadpur, Delhi, which was under
construction. PW-10 (Umesh Mukhiya) started living at the
construction site since 02.05.2011; his employer Mahesh Chand
Aggarwal had directed him to guard the site as watchman. The
contract for construction was given to private contractor Anwar Ali

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who had employed Achchey Lal Kushwaha and Surender as masons.
Undisputedly, the appellant was not acquainted with PW-10 (Umesh
Mukhiya) prior to the incident. In his statement recorded under
Section 161 Cr.P.C. purportedly on 24.05.2011 PW-10 informed the
investigating agency that the appellant had visited the site and the
victim was seen with him at about 08.15 p.m. that night. Conduct of
this witness is quite unreasonable and unnatural. He did not inform
the police about Sohan’s disappearance on 23.05.2011 or 24.05.2011
prior to recovery of the body. The body was found lying at a nearby
place hardly at a distance of 3/4 k.m. from his place of work. He was
not present there till the time of sending Rukka at 02.40 p.m. In his
Court statement, he testified that on 23.05.2011 at about 05.30 p.m. a
boy under the influence of liquor had come at the site. On enquiry
about his identity, Achchey Lal Kushwaha’s sister-in-law disclosed
that he was Raju and was her maternal uncle in relation. At about
08.15 p.m. he noticed the appellant talking with Sohan. When he was
cooking food, he noticed that Sohan was accompanying the appellant
Raju. When Raju went upstairs with Yasoda and other labourers,
Achchey Lal Kushwaha was not there. At around 09.00 p.m. when
Achchey Lal Kushwaha on return enquired about his son, he informed
him that Raju had taken Sohan with him. On 24.05.2011 at around
12.00 – 01.00 p.m. they came to know that the body of the child was
lying in the bushes near Delhi Jal Board.

12. The appellant was not familiar with PW-10 (Umesh
Mukhiya) prior to the incident. In the Court statement, he informed
that when he enquired about appellant’s identity and Achchey Lal

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Kushwaha’s sister-in-law informed him that he was Raju, her maternal
uncle in relation. The prosecution, however, did not examine
Achchey Lal Kushwaha’s sister-in-law who had allegedly told the
witness about appellant’s identity and relation. The Investigating
Officer did not furnish any plausible explanation as to why Achchey
Lal Kushwaha’s sister-in-law was not joined during investigation and
why she was not produced to corroborate PW-10’s version. She was a
material witness to depose if the appellant had visited the site on
23.05.2011 at 05.30 p.m. and that she had disclosed the appellant’s
identity to PW-10 (Umesh Mukhiya). The appellant was arrested on
26.05.2011. The investigating agency, however, did not move any
application for conducting Test Identification Proceedings. Since the
appellant was not acquainted with PW-10 (Umesh Mukhiya), the
Investigating Officer was expected to get Test Identification
Proceedings conducted to enable PW-10 (Umesh Mukhiya) to
participate therein and to identify the appellant to be the individual
who had visited the site that day. Adverse inference is to be drawn
against the prosecution for not holding Test Identification
Proceedings. Appellant’s identification for the first time in the Court
by PW-10 (Umesh Mukhiya) is suspect. This witness did not
accompany the investigating agency to apprehend the appellant or to
visit his place of residence soon after the child disappeared. It is really
doubtful if his statement under
Section 161 Cr.P.C. came to be
recorded on 24.05.2011.

13. Yasoda with whom the appellant had gone upstairs was
not examined. In the examination-in-chief, PW-10 (Umesh Mukhiya)

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deposed that at about 08.15 p.m. he had seen the appellant talking with
Sohan. Thereafter, when he was cooking food, he noticed Raju going
upstairs with Sohan, Yasoda and other labourers. He did not disclose
as to when the child had come downstairs and if the appellant was in
his company at that time. In the cross-examination, he disclosed that
Achchey Lal Kushwaha enquired about Sohan from him in between
08.30 – 09.00 p.m. PW-13 (Achchey Lal Kushwaha) on the contrary
disclosed that he and his wife Bhagwati returned from Parmanand
Hospital in the evening. He met the appellant at around 07.30 to
07.45 p.m. on the ground floor of the House No.B-44, Kewal Park,
Azadpur, Delhi. At about 08.00 p.m. he went to purchase ration; Raju
was present in the house that time. When he returned after purchasing
the ration at around 08.00 – 08.30 p.m., the appellant was not present
in the house that time. They waited for Sohan and Raju till 09.00 p.m.
and thereafter searched them till 12.00 night. Had PW-10 (Umesh
Mukhiya) apprised the victim’s father Achchey Lal Kushwaha that the
victim was seen in his company at around 08.30 p.m. there was no
plausible reason for Achchey Lal Kushwaha and his family members
not to immediately visit the appellant’s residence at Vishnu Garden
instead of searching here and there; this was not done. During
investigation, whereabouts of the appellant were not ascertained. As
per PW-13 (Achchey Lal Kushwaha)’s testimony, no visit was paid to
the appellant’s residence before 26.05.2011. This conduct of the
victim’s father is highly unreasonable and unnatural and belies the
statement of PW-10 (Umesh Mukhiya) that he had seen the appellant
in the company of the child at 08.30 p.m. or that he had informed

Crl.A.1145/2013 Page 9 of 15
about it to the victim’s father. The prosecution did not examine any
witness from Achchey Lal Kushwaha’s family to ascertain till which
time the appellant Raju had remained in the house after he had
allegedly gone upstairs with the child Sohan and Yasoda etc. PW-9
(Mahesh Chand Aggarwal) who had come to know about Achchey Lal
Kushwaha’s son missing on 23.05.2011 from Umesh Mukhiya did not
testify if he was informed that the child was in the appellant’s
company. This information was not conveyed by Umesh Mukhiya to
his employer even on 24.05.2011.

14. In 313 Cr.P.C. statement, the appellant was fair enough to
admit that on 23.05.2011 he had taken liquor with his brother-in-law
(jija); he further admitted that he and his jija had gone to purchase
ration. He was emphatic to state that the child was sitting in the
rickshaw that time and had not accompanied them. No adverse
inference can be drawn against the appellant because of his fair
admission to have visited the site on 23.05.2011 and to have taken
liquor with his jija. In the disclosure statement (Ex.PW-13/G)
recorded on 26.05.2011, the appellant had allegedly informed that his
brother-in-law and nieces used to live at Kewal Park along with their
families and he had visiting terms with them. On 23.05.2011 at about
05.15 p.m. he had gone to his jija Har Lal’s residence and had
consumed liquor that time. The Investigating Officer did not examine
Har Lal Kushwaha and other family members residing with Achchey
Lal Kushwaha at House No.B-44, Kewal Park, Azadpur, Delhi. None
of them was examined to find out as to when the appellant had left
their place of residence.

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15. The prosecution also did not collect any evidence from
the appellant’s place of residence at Vishnu Garden to find out as to
since when he was absconding or had not visited his residence. The
Investigating Officer did not join any independent public witness
when he allegedly visited the appellant’s residence on 24.05.2011. No
surveillance was mounted at his residence. In a dramatic manner, his
arrest on 26.05.2011 has been shown. It is highly unbelievable that
the appellant after having come to know that the police had visited his
residence on 24.05.2011, would come to his house to be apprehended
by the police on 26.05.2011. Apparently, there was no credible
evidence of abscondance. Nothing has surfaced on record if the
appellant had not attended his place of work on 24.05.2011 or
25.05.2011. The place of work was not visited by the police during
these two days and no statement of the appellant’s employer was
recorded. Since the appellant was acquainted with the family of the
victim and was frequent visitor to them and their relatives residing
there, his presence at the spot on 23.05.2011 in the evening cannot be
taken as incriminating circumstance. It was not unusual for the
appellant to be present at the spot that day. The prosecution was,
however, unable to establish beyond doubt if the appellant was ‘last
seen’ in the company of the child and he was the only person who was
with the victim prior to his death.

16. No Call Details Record was collected during
investigation. PW-13’s cross-examination reveals that the appellant
had a mobile; PW-13 (Achchey Lal Kushwaha) had a talk with him on
mobile about six months prior to the incident. PW-13 (Achchey Lal

Crl.A.1145/2013 Page 11 of 15
Kushwaha) did not give reason as to why no attempt was made to
contact the appellant on mobile. The Call Details Record was very
relevant to ascertain as to with whom the appellant was in touch on the
relevant date and time and what was his location. No call details of
either of the appellant or PW-10 (Umesh Mukhiya) or anyone else is
on record and it creates serious doubt about the case of the
prosecution.

17. The recovery of the appellant’s underwear having semen
stains is inconsequential. The alleged recovery was effected after
appellant’s arrest on 26.05.2011. It is highly unbelievable that the
police won’t be in a position to recover the said underwear lying at a
distance of 70 – 75 paces from the spot at the time of recovery of the
other articles near the dead body on 23.05.2011. As per FSL reports
(Ex.PW-18/G, Ex.PW-18/H and Ex.PW-18/I), only human semen was
detected on the underwear, however, its group could not be
ascertained. It is unclear if the semen on the underwear was that of
the appellant. Moreover, no semen could be detected on Ex.4 (Gauze
cloth piece having dirty stains kept in glass bottle described as ‘Anal
swab’), Ex.5 (One underwear having dirty brownish stains), Ex.6 (A
dirty piece of cloth having brown stains along with threads described
as ‘ligature material’), Ex.8 (Few dirty nail clippings described as
‘Nail clipping of left hand’) and Ex.9 (Few dirty nail clippings
described as ‘Nail clippings of right hand’). Blood could not be
detected on Ex.4 and Ex.10 (One underwear having dirty stains). The
FSL report does not connect the appellant with the commission of
crime of carnal intercourse with the child.

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18. A statement under Section 313 Cr.P.C. simplicitor cannot
normally be made the basis for conviction.
In ‘Raj Kumar Singh @
Raju vs. State of Rajasthan’, 2013 (5) SCC 722, the Supreme Court
held :

“41. In view of the above, the law on the issue can be
summarized to the effect that statement under
Section
313 Cr.P.C. is recorded to meet the requirement of
the principles of natural justice as it requires that an
accused may be given an opportunity to furnish
explanation of the incriminating material which had
come against him in the trial. However, his
statement cannot be made a basis for his conviction.
His answers to the questions put to him under
Section
313 Cr.P.C. cannot be used to fill up the gaps left by
the prosecution witnesses in their depositions. Thus,
the statement of the accused is not a substantive
piece of evidence and therefore, it can be used only
for appreciating the evidence led by the prosecution,
though it cannot be a substitute for the evidence of
the prosecution. In case the prosecution evidence is
not found sufficient to sustain conviction of the
accused, the inculpatory part of his statement cannot
be made the sole basis of his conviction. The
statement under
Section 313 Cr.P.C. is not recorded
after administering oath to the accused. Therefore, it
cannot be treated as an evidence within the meaning
of
Section 3 of the Evidence Act, though the accused
has a right if he chooses to be a witness, and once he
makes that option, he can be administered oath and
examined as a witness in defence as required under
Section 315 Cr.P.C. An adverse inference can be
taken against the accused only and only if the
incriminating material stood fully established and the
accused is not able to furnish any explanation for the
same. However, the accused has a right to remain

Crl.A.1145/2013 Page 13 of 15
silent as he cannot be forced to become a witness
against himself. ”

19. Normally, last seen theory comes into play where time
gap, between the point of time when accused and deceased were seen
last alive and when deceased is found dead, is so small that possibility
of any person other than the accused being the perpetrator of the
crime, becomes impossible. In the present case, it will be highly
hazardous to come to a conclusion of the appellant’s guilt on the basis
of ‘last seen’ circumstance alone as possibility of someone else to be
with the victim cannot be ruled out. The area was surrounded by so
many family members of the victim; many labourers were there.
None else has been examined to corroborate the statement of PW-10
(Umesh Mukhiya) to have seen the victim only with the appellant
prior to his death.

20. In the light of above discussion, we are of the considered
view that the prosecution was unable to establish its case beyond the
shadow of a reasonable doubt. Well settled law is that before a person
is convicted entirely on circumstantial evidence, the Court must be
satisfied not only that those circumstances were consistent with his
having committed the act, but also that the facts were such so as to be
inconsistent with any other rationale conclusion other than the one that
the accused is the guilty person.

21. In the case of a circumstantial evidence, the judgment
remains essentially inferential. The inference is drawn from the
established facts as the circumstances lead to particular inferences.

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The Court has to draw an inference with respect to whether the chain
of circumstances is complete and when the circumstances therein are
correctly considered, the same must lead only to the irrational
conclusion, that the accused alone is the perpetrator of the crime in
question. All the circumstances so established, must be of a
conclusive nature, and consistent only with the hypothesis of the guilt
of the accused. If there are two views possible on the evidence, one
pointing to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted.
Suspicion, however, grave it may be, cannot take the place of proof.

22. Resultantly, the appellant deserves benefit of doubt; the
judgment of the Trial Court recording conviction cannot be sustained.
The appeal is allowed. Conviction and sentence are set aside. The
appellant shall be released forthwith if not required to be detained in
any other case.

23. Trial Court record be sent back forthwith with the copy of
the order. Intimation be sent to the Superintendent Jail.

(S.P.GARG)
JUDGE

(C.HARI SHANKAR)
JUDGE

NOVEMBER 17, 2017 / tr

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