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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.209/2016

Reserved on: January 04, 2018
Pronounced on: February 06, 2018

ANIL THAKUR ….. Appellant
Through: Mr. Bahar U. Barqi with Mr. M.
Rais Farooqui, Advocates.

versus

STATE NCT OF DELHI ….. Respondent
Through: Ms. Radhika Kolluru, APP.

CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

JUDGMENT

Dr. S. Muralidhar, J.:

1. This appeal by, Anil Thakur, is directed against the impugned judgment
dated 31st October 2015 passed by the learned Additional Sessions Judge
(Special Fast Track Court), East, North East Shahdara Districts,
Karkardooma Courts, Delhi in Sessions Case No.95/13 arising out of FIR
No.425/09 dated 26th November 2009, registered at Police Station („PS‟)
Shahdara, convicting him of the offences under Sections 376/302/201 Indian
Penal Code („IPC‟) and the order on sentence dated 26 th November 2015
whereby the Appellant was sentenced to undergo

(i) imprisonment for life and a fine of Rs. 10,000 for the offence
punishable under Section 302 IPC and in default of payment of

Crl Appeal No. 209 of 2016 Page 1 of 42
fine, to undergo simple imprisonment („SI‟) for a period of one
month;

(ii) rigorous imprisonment („RI‟) for ten years and a fine of Rs.

10,000 for the offence punishable under Section 376 IPC and in
default of payment of fine, to undergo SI for a period of one
month; and

(iii) RI for three years and a fine of Rs. 5,000 for the offence
punishable under Section 201 IPC and in default of payment of
fine, to undergo SI for a period of one month.

2. At the outset, it requires to be noticed that along with the Appellant – who
was Accused No. 1 (A-1) – there were three other co-accused, i.e. Avdesh
Pandey (A-2), Mahesh (A-3) and Zulfikar @ Bhondu (A-4). However, A-2
to A-4 were acquitted by the same judgment of the learned ASJ for the
aforementioned offences, i.e. under Sections 302/201/34 IPC as well as the
offence under Section 376 (ii) (g) IPC.

The case of the prosecution

3. On 25th October 2009, information was received at the Police Control
Room („PCR‟) at about 1.10 pm that a dead body was seen lying in a ganda
nala at 1/4793, Balbir Nagar Extension, Street No.10 and this information
was reduced in writing as DD No.20A. The said DD was assigned to
Assistant Sub-Inspector S.P. Singh (PW-31) who then reached the spot
along with Constable Narain Singh and found the dead body of a female
aged 20-22 years. Inspector Ombir Singh (PW-36), who was posted at PS
Shahdara as Inspector (Investigation) also reached the spot. According to

Crl Appeal No. 209 of 2016 Page 2 of 42
PW-31, he learnt that the dead body was of Dolly (deceased), the daughter
of Mahesh Chand (PW-1) who was a resident of Pilanji Village, Sarojini
Nagar. A missing person report had already been lodged in respect of the
deceased. The crime team was called to the spot and photographs of the
dead body were taken. Upon search of the dead body with the help of lady
police, three rings of silver, one ring of iron, one ear top, cash amounting to
Rs. 85, and one DTC ticket of Rs. 5 were seized (Ex.PW-23/A). The dead
body was sent to Guru Tegh Bahadur („GTB‟) Hospital for preservation.

4. Meanwhile, on 23rd October 2009, PW-1 had lodged a missing person
report at PS Sarojini Nagar (Ex.PW-1/D). He stated therein that the
deceased, who was working in a private company, had left home for her
workplace in the morning of 22nd October 2009 and did not return home.
According to PW-1, he tried to contact the deceased on her mobile phone
but it was switched off. He kept searching for his daughter the whole night
till the evening of the following day, i.e. 23rd October 2009. Thereafter he
went to PS Sarojini Nagar and lodged a missing person report.

5. According to PW-1, on 26th October 2009, he came to know through the
news that an unclaimed dead body of a young girl had been located by the
police of PS Shahdara. PW-1 then went to PS Shahdara on
26th October 2009 and identified the dead body at the GTB Hospital
mortuary to be that of his daughter. The statements of PW-1 and Rahul
(PW-4), elder brother of the deceased, were recorded. It should be
mentioned here that when they went to PS Shahdara, they were
accompanied by Sharda (PW-2), mother of the deceased.

Crl Appeal No. 209 of 2016 Page 3 of 42

Post-mortem report

6. The post-mortem of the dead body was conducted by Dr. Shweta Garg on
26th October 2009 at the GTB Hospital. Her signature on the report was
subsequently identified by Dr. Neha Gupta (PW-26). The post-mortem
report (Ex.PW-26/A) revealed the following external injuries:

“(1) Reddish colour bruise of size 6 cm x 7.2 cm present over
right side breast, upper inner quadrant, medially, 3 cm from
midline.

(2) Reddish abrasion of size 2.cm x 2 cm present over forehead
just above glabellas in midline.

(3) Reddish abrasion of size 0.5 cm x 1.2 cm present over left
side forehead, 1 from midline, 2 cm above medial end of left
eyebrow.

(4) Reddish abrasion of size 2.5 cm x 2 cm present over right
side forehead, 2 cm above middle of right eyebrow, 1.5 cm
from midline.

(5) Reddish abrasion of size 1 cm x 1.5 cm present over tip of
nose.”

7. On the examination of genital area, hymenal tear was seen at 1, 3, 5, 7 and
9 o‟clock positions. It was noted that the tears were extending beyond the
hymenal marks. The time since death was stated to be “about three days”. It
was further stated that the opinion as to the cause of death “will be given
after receiving the report of viscera which is sent to CFSL for chemical
analysis”. The injuries were ante-mortem and produced by “blunt force
impact”. The tears present in vaginal hymen was said to be recent in origin.
However, the low vaginal and high vaginal swabs and smears were kept for

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chemical analysis “for the presence of semen and semen grouping”.

Investigation of the crime and arrest of the accused

8. The Court considers it pertinent to note that, on recovery of the dead
body, no FIR was registered immediately for reasons that are as yet
unknown. The FIR 425/09 (Ex.PW9/A) shows that it was registered only on
26th November 2009 at 10.50 pm. This happened to coincide with the date
on which the investigation of the case was entrusted to PW-36.

9. On the next date, i.e. 27th November 2009, he along with ASI Surender
Pal Singh inspected the place of recovery of the dead body. It has come in
the evidence of PW-36 that one Ravi (PW-8), whom the deceased had
contacted through her mobile phone, as noticed in the call detail records
(„CDR‟), was called to the police station and his statement under Section
161 Code of Criminal Procedure („CrPC‟) was recorded. According to PW-
36, the parents and brother of the deceased came to the police station on
their own and their statements under Section 161 CrPC were recorded.

10. It is in these statements that it was first disclosed by PW-2 that the
deceased had informed her that A-1 was her friend. She also stated that A-1
had expressed a desire to marry the deceased. According to PW-2, she had
noted down Anil‟s number and had contacted him on 23 rd October 2009
after Dolly went missing. She claims that Anil told her that he and Dolly
were in the midst of an ongoing quarrel and had not spoken for 2-3 days. He
is stated to have been evasive as to where she might be.

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11. PW-36 stated that local inquiries were thereafter made on
29th November 2009 at Balbir Nagar, New Modern Shahdara, Jagatpuri etc.
According to him, one Pradeep Jain (PW-5), who met the police near the
railway fatak of Jagatpuri, identified the photograph of the deceased and
stated that he had seen the deceased with A-1, A-2, A-3, and A-4 on
22nd October 2009. PW-36 then learnt that A-1 used to frequent a mobile
shop located at Gali No.8, Jagatpuri. He recorded the statement of Mohit
Aggarwal (PW-7) who was running the said mobile shop.

12. Thereafter, several attempts were made to trace the accused. On
3rd December 2009, PW-36 along with Head Constable Virender, Ct.
Sanjeev, and Ct. Gagan are stated to have left for Sultanpur, UP and reached
there on 4th December 2009. Raids were conducted at villages Purasukha
and Sakrawa where the relatives of A-1 resided but none of the accused
could be traced. A raid was also conducted at village Umri on
6th December 2009 but the accused could not be found. This continued at
different villages from 9th-11th December 2009.

13. On 18th January 2010, PW-36 is stated to have gone to District Urai in
UP by private vehicle. On 19th January 2010, they reached the Court of the
learned ASJ, District Urai where A-4 was to appear in a case. However, the
learned ASJ was on leave that day and the counsel for A-4 had moved an
exemption application. When they returned to PS Shahdara on
20th January 2010, PW-36 came to know that A-2 had moved an application
for surrender which was fixed for 21 st January 2010. A-2 ultimately
surrendered before the Link Metropolitan Magistrate on 22 nd January 2010

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where PW-36 interrogated him and arrested him. Since A-2 was a juvenile,
the learned MM refused the permission sought for remanding him in police
custody for three days and instead sent him to an observation home for boys.
The learned MM directed PW-36 to have A-2‟s date of birth ascertained
from the concerned school.

14. On 23rd January 2010, a secret informer purportedly told PW-36 and his
team, who were at Mandoli Road at 7.00 am, that A-1 had returned to Delhi
and would go to his house at Gali No.12, New Modern Shahdara. At around
7.15-7.30 am they noticed one person coming from Jagatpuri. That person
was pointed out by the secret informer as A-1. PW-36 and his team
immediately arrested A-1. Ct. Kishan Pal (PW-35), who was present there,
knew A-1 as he had been posted at PS Shahdara for a long time.

15. Thereafter, A-1 is said to have led the police to his residence at
No.4649/333, Gali No.12, New Modern Shahdara and purportedly pointed
out the place where he committed the rape and murder of the deceased along
with the co-accused persons. He is supposed to have pointed to a motorcycle
bearing registration DL-5-SX-0930 and disclosed that it had been used to
dispose of the dead body. A-1 is supposed to have led the police to the
ganda nala where he along with the co-accused had disposed of the dead
body. A-1 was then sent to GTB Hospital for medical examination.

Charge sheets filed

16. Initially, a charge sheet was filed in respect of A-1 and A-2 before the
concerned Court. It was mentioned in the charge sheet that the investigation

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qua A-3 and A-4 was ongoing and that a supplementary charge sheet will be
filed after their arrest.

17. According to PW-36, he learnt that A-3 was in judicial custody in some
other case which was being investigated by PS Mansarovar Park. With the
permission of the Court, he was arrested from Tihar Jail on 6 th May 2010
and produced before the Court on the following day. Permission was granted
for his remand in police custody for one day and he underwent medical
examination at GTB Hospital.

18. On 21st May 2010, PW-36 along with two other policemen reached the
Court before which A-4 was going to surrender. When he did surrender,
PW-36 arrested him with the permission of the Court. His interrogation led
to a disclosure statement (Ex.PW-21/F). He was taken for medical
examination and then remanded to judicial custody. A supplementary charge
sheet was filed qua A-3 and A-4 after completion of the investigation.

19. At this stage, the Court finds it pertinent to note what is stated in the
main chargesheet and in the supplementary chargesheet. According to the
first chargesheet, in the afternoon of 22nd October 2009, A-1 had brought the
deceased with him and both of them, along with A-3 and A-4, started
consuming liquor. A-4 had secretly spiked the deceased‟s drink with a
sedative tablet. Then, as per the chargesheet, A-1 had sexual intercourse
with the deceased. Thereafter, when the other three accused also wanted to
do so, the deceased refused, upon which the three accused forcibly raped
her. When the deceased stated that she would lodge a complaint with the

Crl Appeal No. 209 of 2016 Page 8 of 42
police, A-1 strangulated her with the belt and sat on her chest. A-3 and A-4
tightened the belt and after a while, the deceased went quiet. The four
accused then placed her on a motorcycle and when they were passing by the
ganda nala in Balbir Nagar, the deceased showed signs of struggle upon
which A-1 again pressed her neck and the four of them then lifted her body
and flung it into the ganda nala.

20. In the supplementary charge sheet, the details of the arrest of A-3 and
A-4 were given. The details were also given of what possibly happened
since the CDRs of the mobile phones purportedly used by A-1 and the
deceased were now available. It was stated that on 22nd October 2009, A-1
called up the deceased and asked her to meet him at the gate of the PVR at
Anand Vihar. He then took her home where A-2, A-3, and A-4 were
consuming drinks. A-2, A-3, and A-4 then left the home of A-1. Thereafter,
A-1 and the deceased ate food from Janata Hotel and engaged in sexual
intercourse. The deceased is stated to have switched off her phone when she
reached the house of A-1.

21. In the evening, A-2, A-3 and A-4 returned to A-1‟s house and all of
them again consumed alcohol and charas. The fact of A-4 mixing a sedative
tablet in the beer consumed by the deceased was reiterated. A-1 then had sex
with her. Thereafter, A-2, A-3, and A-4 purportedly came into the same
room and, with the acquiescence of A-1, raped the deceased. When the
deceased turned on her mobile phone threatening to complain to the police
she received a text message. At that point, A-2 snatched the phone and sent
a text message to someone and then shut it down. This was at around 2.00

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am.

22. At around 3.30 am, when the deceased refused to let the matter lie, A-1
strangulated her neck with a belt and also sat on her chest. While A-2 held
her, A-3 and A-4 pulled the belt tight. A-1 then pressed hard on the face of
the deceased with a pillow. After checking that she was dead, they placed
her dead body on the motorcycle which was being driven by A-2 and the
deceased was made to sit between him and A-3. On the other motorcycle
were A-1 and A-4. When they were in Balbir Nagar driving along the ganda
nala, A-2 noticed that the deceased was still alive and that her eyes were
opening and she was getting alarmed. At that time, A-1 again pressed her
neck and then all four of them threw her dead body in the ganda nala.

Charges

23. After the two charge sheets were filed, the trial Court proceeded to frame
charges and by an order dated 14th March 2011 the charges were framed
against the four accused as under:

“I, Nisha Saxena, Additional Sessions Judge-05 (NE),
Karkardooma Courts, Delhi, do hereby charge you (1) Anil
Kumar (2) Awdesh Pandey, (3) Mahesh (4) Zulfikar @ Bhondu
as follows:

That on 23rd October 2009 near dirty drain, Balbir Nagar, Delhi
you all in furtherance of common intention committed murder
of deceased Dolly by intentionally or knowingly causing death
of deceased Dolly and thereby committed an offence punishable
under Section 302/34 IPC and within my cognizance.

Secondly, that on the intervening night of 22/23 rd October 2009
at H. No. 4649/333, Gali No. 12, New Modern Shahdara, Delhi

Crl Appeal No. 209 of 2016 Page 10 of 42
you all committed gang rape upon the prosecutrix Dolly against
her wishes and without her consent and thereby committed an
offence punishable under Section 376 (2) (g) IPC and within
my cognizance.

Thirdly, after having attempted to kill Dolly you all in
furtherance of common intention caused the evidence of
commission of that offence to disappear by throwing the dead
body in a dirty drain with the intention of screening yourself
from legal punishment and thereby committed an offence
punishable under Section 201/34 IPC and within my
cognizance.

And I hereby direct that you all be tried by me for the aforesaid
charges.”

24. What is significant to note is that the charges were framed in a manner
such that all of them are indicted of having committed the crime together. In
other words, it is not the case of the prosecution, as set out in the charge, that
the crime was committed jointly and severally by the accused persons. As
per the charge, either the accused persons committed the offences together
or none of them did. This is evidenced from the first and second charge
where there is no further individual charge made against any of the accused
committing the substantive offence, whether it is murder punishable under
Section 302 IPC or rape punishable under Section 376 IPC. The second
charge, in fact, is only of gang rape punishable under Section 376 (2) (g). In
the alternate, rape may have been committed by any of the accused
individually in which case the offence would be punishable under
Section 376 IPC which was not contemplated by the prosecution. The words
used are “you all committed gang rape upon the prosecutrix” and not that as
an alternative anyone of them committed rape upon her individually.

Crl Appeal No. 209 of 2016 Page 11 of 42

Impugned judgement of the trial Court

25. In the impugned judgment dated 31st October 2015, the circumstances
put forth by the prosecution to prove its case were set out as under:

“(a) Post-mortem report Ex.PW26/A records that there were
injuries on the body of the deceased and all the injuries were
ante-mortem in nature and produced by blunt force impact. It
also records certain injuries on the private part of the deceased.
It also records that tears near her private parts and on the
vaginal hymen are of recent origin. This shows that the
deceased was sexually assaulted and killed and the motive of
the offence was passion.

(b) The deceased and this accused Anil Thakur were acquainted
with each other for some time before the date of death of the
deceased.

(c) The deceased last left her home at about 10.00 am on 22 nd
October 2009. The calls detail record (Ex.PW14/C) shows that
this accused spoke repeatedly from his mobile phone
9268241820 to the deceased on her mobile phone no.
xxxxxx0532 on 22nd October 2009 before her mobile phone
was switched off.

(d) The parents of the deceased lodged a missing report
(Ex.PW-1/D) at police station Sarojini Nagar on 23rd October
2009 as they were residing within the territorial jurisdiction of
that police station.

(e) On 22nd October 2009 at about 13.59 hours, the mobile
phone of the deceased was switched of. The phone was again
switched on around 2.14 am and at 2.14 am, 2.19 am and 2.20
am on 23rd October 2009 three SMSs were exchanged between
the mobile phones of the deceased and that of Ravi Kumar
(PW8) and then the phone was again switched of. From the
records of the mobile phone company (Ex.PW16/E) it is
apparent that at that time the mobile phone of the deceased was

Crl Appeal No. 209 of 2016 Page 12 of 42
located at New Modern Shahdara.

(f) Accused Anil Thakur was residing at New Modern
Shahdara. The call detail records of mobile phone 9268241820
of the accused show that this accused at the relevant time was
actually at New Modern Shahdara.

(g) The dead body has been recovered from a ganda nala at
Balbir Nagar which is near the house of the accused.

(h) The deceased used to reside at Sarojini Nagar and thus her
presence at New Modern Shahdara in East Delhi is not normal.

(i) On 23rd October 2009 as the deceased did not return home,
the mother of the deceased (PW2) made a telephone call to this
accused to enquire about the deceased. This accused initially
said that he did not know any girl by the name of the deceased
but on being informed that the caller is the mother of the
deceased he said that he had some fight with the deceased about
two or three days back and thereafter she is not in touch with
him. He further stated that he would search for the deceased and
also advised PW2 to look for the deceased. As per the case of
prosecution this statement made by the accused to PW2 was
obviously incorrect, as the deceased and this accused had
spoken on phone on 22nd October 2009.

(j) The accused did not hand over his mobile phone during
investigation.

(k) Conduct of accused Anil Thakur in absconding immediately
after the incident. This accused absconded and could be taken
in custody only on 23rd January 2010 despite efforts made by
the police officials.”

26. The trial Court then proceeded to discuss the circumstances. Discussing
the evidence, particularly those relating to the CDR of the phone purportedly
used by A-1, i.e. 9268241820, the trial Court concluded that he had used the

Crl Appeal No. 209 of 2016 Page 13 of 42
phone to make calls to the mobile phone used by the deceased at 11.57 am
and 1.10 pm on 22nd October 2009. The trial Court accepted the plea that on
23rd October 2009, at 2.14 am and 2.19 am, the location of the mobile phone
of the deceased was shown at New Modern Shahdara. The CDR of that
phone showed that three text messages were exchanged between the mobile
phone of the deceased and the mobile phone number 9871432154 which
belonged to Ravi Kumar (PW-8) who also spoke of sending two messages to
the deceased on her mobile phone. The trial Court accepted the plea of the
prosecution that since the CDR of the mobile phone used by the deceased
showed that at the relevant time it was at New Modern Shahdara, the
circumstance (f) above stood proved.

27. Importantly, the trial Court accepted the evidence of PW-2 regarding
conversation she had with A-1 soon after the deceased had gone missing.
The trial Court characterized her evidence as being “normal and natural of a
mother whose daughter of marriageable age was missing for more than 24
hours and who knows that her daughter was having close friendship with
this accused”.

28. Although the trial Court noted that the FIR in this case was registered
only on 26th November 2009 whereas the dead body was recovered on
25th October 2009 and that “no reason has been shown as to why the FIR
was not registered immediately on the recovery of the body”, it did not
dwell further on this aspect.

29. The trial Court also accepted the plea of the prosecution regarding the

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accused persons absconding and the time and manner of their arrests. The
trial Court therefore, concluded that the prosecution had proved
circumstances (a) to (k) beyond all reasonable doubt qua A-1 alone. As
regards the guilt of A-1, the trial Court concluded as under:

“To my mind, the circumstances proved on record establish the
guilt of this accused Anil Thakur. His contention in this court
that he was not acquainted with the deceased is not at all
believable. The deceased and the accused were in the same area
on the night of the incident and the dead body of the deceased
was found near the area where accused was living alone. His
subsequent conduct of denying his being in contact with the
deceased on the date of the incident is strong indication of the
fact that he was aware of the seriousness of the issue. After the
incident, he absconded. In the circumstances, I am of the
opinion that the guilt of this accused of having raped and
murdered the deceased stands established. As a consequence, it
also stands established that he was the person who had
concealed the dead body in the drain at Balbir Nagar,
Shahdara.”

30. The trial Court proceeded to discuss the guilt of the other accused
persons. As far as A-2 was concerned, although he had earlier claimed to be
a juvenile, the Juvenile Justice Board („JJB‟) by an order dated 3rd May 2010
held that he was about 18 years old on the date of the crime. PW-5, who had
earlier told the police that he had seen A-2 along with the other accused
throwing something which could have been a dead body in the ganda nala,
did not support the case of the prosecution when he deposed in Court. He
failed to identify A-2 and in fact he stated that A-2 was not the person whom
he had seen throwing something in the ganda nala. It was held that the fact
that A-2 refused to provide a sample of his semen and absconded after the
incident for some time was not sufficient to conclude that he was guilty of

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the offence. A-2 was, therefore, acquitted of all offences. As regards A-3
and A-4, the trial Court noted that PW-5 again refused to identify them as
those throwing something in the ganda nala and therefore, acquitted them of
all charges.

31. As a result, only A-1 was convicted of the offences under Sections 302
and 201 IPC, as if he committed them individually. Interestingly, A-1 was
convicted for the offence under Section 376 IPC whereas the charge framed
was that of gang rape under Section 376 (2) (g) IPC. The trial Court, by a
separate order on sentence dated 26th November 2015 proceeded to sentence
A-1 in the manner already discussed hereinabove.

Law relating to framing of charges

32. One of the issues arising for consideration is whether the trial Court
could have proceeded to convict A-1 in terms of charges that were not
framed against him in the first place. In particular, the argument made is that
the charge framed was that all the accused together committed the crime and
not that any of them individually committed it. The precise charge was only
under Sections 302 and 201 IPC read with Section 34 IPC and not that any
of them had committed those offences. Even more serious is that the second
charge is that of gang rape committed by all of them. There was no separate
charge against any of the accused individually committing rape punishable
under Section 376 IPC.

33. The consequence of convicting an accused for a charge that is not
framed against him has been discussed in several cases. One of the earliest

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cases is B.N. Srikantiah v. State of Mysore AIR 1958 SC 672. In that case,
it was explained that there was nothing, “whether by the trend of cross-
examination or by anything on the record, to show that the Appellants were
misled by this omission in the charge”. Further, it was held that where “no
case of prejudice has been alleged or established and there are no facts on
the consideration of which the conclusion could be reached that the
conviction under Section 302 is vitiated as a result of prejudice” such a plea
could not be accepted. It was pointed out that whether the accused was
prejudiced as a result of omission of a charge would depend upon the facts
and circumstances of every case. What is important to examine is whether,
in the way in which the charge was framed, it gave the accused “no effective
notice of the case they had to meet”.

34. The Supreme Court, in that case, also discussed the decision in Willie
(William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 where it
was pointed out that if an irregularity in framing the charge is curable such
that it could not vitiate the trial, it would have to be shown that some
prejudice has been caused as a result of the omission to specify the precise
charge. In the same case, the Court discussed the expressions “by the
absence of a charge” and “no charge was framed” as occurring in Section
505 Code of Criminal Procedure 1898 and observed as under:

“We see no reason for straining at the meaning of these plain
and emphatic provisions unless ritual and form are to be
regarded as of the essence in charm in the ritual of a charge. It
is the substance of these provisions that count and not their
outward form. To hold otherwise is only to provide avenues of
escape for the guilty and afford to protection to the innocent.”

Crl Appeal No. 209 of 2016 Page 17 of 42

35. The precise situation in B.N. Srikantiah (supra) was that there was no
charge under Section 34 IPC and, therefore, the accused would not be
convicted for any of the substantive offences by application of Section 34
IPC. There was a charge for the substantive offence under Section 302 and
then for the offence of abetment under Section 109 IPC. In that context, the
Supreme Court observed as under:

“The imperfection in the charge is curable provided no
prejudice has been shown to have resulted because of it. The
appellants had notice that they were being tried as “sharers in
the offence” and their liability was collective and vicarious and
not individual. No doubt they, were charged, under Section 149
of the Indian Penal Code with being members of an unlawful
assembly the common object of which was murder of the
deceased but they were also charged that they with Accused
Nos. 5 6 had committed murder by intentionally causing the
death of the deceased. The prosecution led evidence to show
that at least two of the Appellants were waiting for the arrival of
the evening bus by which the deceased and his companions
were travelling and that the appellants and others met them at
the bund and there was a concerted attack by them followed by
a chase and assault with choppers by all the appellants resulting
in death because of 24 injuries of a serious nature given by the
appellants collectively. Of these injury No. 5 individually and
others cumulatively were sufficient in the ordinary course of
nature to cause death. Section 34 is only a rule of evidence and
does not create a substantive offence. It means that if two or
more persons intentionally do a thing jointly it is just the same
as if each of them had done individually.”

36. In A.S. Krishnan v. State of Kerala (2004) 11 SCC 576, as regards a
situation wherein a charge relating to criminal breach of trust was framed
along with the charge of conspiracy, the Supreme Court has held that
conviction simpliciter for criminal breach of trust would not be valid. The

Crl Appeal No. 209 of 2016 Page 18 of 42
Supreme Court appeared to have disagreed with the view taken by the High
Court that “if the charge of conspiracy is followed by substantive charge of
another offence, there is nothing to prevent the Court convicting an accused
for the substantive charge even if the prosecution had failed to establish
conspiracy”.

37. What is important to note further in the above case is that the charge of
conspiracy was followed by the substantive charge of another offence. In the
present case, however, there is no separate charge regarding a substantive
offence committed individually.

38. In Anna Reddy Sambasiva Reddy v. State of Andhra Pradesh AIR 2009
SC 2661, it was contended on behalf of the appellant-accused that the
convictions and sentences for the offence under Section 302 IPC simpliciter
was not legally sustainable in the absence of any specific overt acts
attributed to each of the accused. Repelling this contention, the Supreme
Court summarized the decision Willie (William) Slaney (supra), as under:

“Willie (William) Slaney thus holds: that where the charge is
rolled up one involving the direct liability and the constructive
liability without specifying who are directly liable and who are
sought to be made constructively liable, in such a situation, the
absence of a charge under one or other or the various heads of
criminal liability for the offence cannot be said to be fatal by
itself, and before a conviction for the substantive offence,
without a charge can be set aside, prejudice will have to be
made out.”

39. It then proceeded to lay down the legal position under the CrPC as

Crl Appeal No. 209 of 2016 Page 19 of 42
under:

“42. The aforesaid legal position holds good after enactment of
the Code of Criminal Procedure, 1973 as well in the light of
Sections 215, 216, 218, 221 and 464 contained therein. In
unmistakable terms, Section 464 specifies that a finding or
sentence of a court shall not be set aside merely on the ground
that a charge was not framed or that charge was defective
unless it has occasioned in prejudice. Because of a mere defect
in language or in the narration or in form of the charge, the
conviction would not be rendered bad if accused has not been
adversely affected thereby. If the ingredients of the section are
obvious or implicit, conviction in regard thereto can be
sustained irrespective of the fact that the said section has not
been mentioned. A fair trial to the accused is a sine qua non in
our criminal justice system but at the same time procedural law
contained in the Code of Criminal Procedure is designed to
further the ends of justice and not to frustrate them by
introduction of hyper-technicalities. Every case must depend on
its own merits and no straightjacket formula can be applied; the
essential and important aspect to be kept in mind is: has
omission to frame a specific charge resulted in prejudice to the
accused.”

40. In Dalbir Singh v. State of U.P. AIR 2004 SC 1990, the Supreme Court
explained that “in order to judge whether there is a failure of justice, the
Court has to examine whether the accused was aware of the basic
ingredients of the offence for which he is being convicted and whether the
main facts sought to be established against him were explained to him
clearly and whether he got a fair chance to defend himself”.

41. In Mohan Singh v. State of Bihar AIR 2011 SC 3534, the same position
was reiterated. In that case, it was held that no prejudice has been caused to
the appellant “for non-mentioning of Section 302 IPC in the charge since all

Crl Appeal No. 209 of 2016 Page 20 of 42
the ingredients of the offence were disclosed”. It was further held that “on
overall consideration of the facts and circumstances of this case we do not
find that the Appellant suffered any prejudice nor has there been any failure
of justice”.

The conviction for the offence of rape

42. In the present case, however, the prejudice to A-1 is writ at large since
all the three substantive charges are for the offences being committed by all
the accused together and not by any of them individually. Even the
description of the charge in the charge sheet is about all of them getting
together to commit the crime and not that A-1 alone had committed any of
the offences.

43. In this context, the second charge clearly states that “you all committed
gang rape upon the prosecutrix”. However, what A-1 has now been
convicted for is for the offence under Section 376 IPC whereas the charge is
of the offence under Section 376 (2) (g) IPC. Interestingly, in the main
charge sheet as well as in the supplementary charge sheet, it is clear that, as
far as A-1 is concerned, he is stated to have engaged in consensual sexual
intercourse with the deceased. The charge sheets only speak to him being a
silent spectator while the other accused persons committed gang rape upon
the deceased. With the trial Court having come to the conclusion that none
of the other accused were involved in the commission of the offence, the
charge of gang rape under Section 376 (2) (g) IPC had to fail qua A-1 as
well. There was no question of him committing gang rape all by himself.

44. Even in the charge sheets, no case has been made out against A-1 for
Crl Appeal No. 209 of 2016 Page 21 of 42
committing rape upon the prosecutrix. If there was no evidence according to
the prosecution, clearly it was not a case of a mere failure to frame the
charge even though all ingredients of the offence have been set out in the
charge sheet. The evidence, as set out, is not that of rape being committed by
A-1 individually on the prosecutrix.

45. Therefore, it is impermissible for the trial Court to convict him for that
offence since it was not the case of the prosecution at all. None of the
decisions cited by the learned APP, which have been discussed above, can
save the glaring illegality of convicting the Appellant for an offence for
which he is not accused by the prosecution in the charge sheet. Even if no
specific charge in that regard was framed against him, it is imperative that at
least some part of the charge describe the offence as being committed by A-
1 alone. Such a description of the offence is not to be found in either charge
sheet filed in this case.

46. There is no evidence whatsoever led by the prosecution to show that A-1
committed rape on the deceased. The case of the prosecution in both charge
sheets is that the deceased had consensual sex with A-1. This was
completely overlooked by the trial Court. While the post-mortem report of
the deceased shows that she suffered extensive injuries on her private parts,
it was never a case of the prosecution that this was as a result of A-1
committing rape on her. Given the nature of the injuries, the prosecution
proceeded on the basis that the offence committed was that of gang rape
involving the other co-accused. Further there was no forensic evidence
matching the semen on the vaginal swabs with that of A-1 or any of the

Crl Appeal No. 209 of 2016 Page 22 of 42
accused. That case having failed, the trial Court could not have possibly
proceeded to convict A-1 for the offence under Section 376 IPC. The Court,
therefore, has no hesitation in setting aside the conviction of A-1 for the
offence under Section 376 IPC.

The offence under Section 201 IPC

47. As regards the charge for the offence under Section 201/34 IPC, here
again, the manner in which the charge is framed is that “you all, in
furtherance of common intention, caused the evidence of commission of the
offence of killing the deceased to disappear by throwing the body in the
dirty drain”. There is no substantive charge under Section 201 IPC alone.

48. Here again, the trial Court made a serious error in convicting the
Appellant for the substantive offence under Section 201 IPC without
appreciating if the evidence on record could at all support such a charge. In
other words, the evidence should point to the possibility of A-1 alone
disposing of the body in the ganda nala. There should, at the very least, be
some credible evidence, either direct or circumstantial, to show that it was
A-1 alone who threw the dead body into the ganda nala. The evidence that
has been put forth by the prosecution does not support such a conclusion.
Therefore, the Court has no hesitation in setting aside the conviction of A-1
for the offence under Section 201 IPC as well.

The offence punishable under Section 302 IPC

49. As regards the offence of murder punishable under Section 302 IPC, on
reading the charge sheets it is seen that there are specific acts attributable to

Crl Appeal No. 209 of 2016 Page 23 of 42
A-1, viz., placing the belt on the neck of the deceased and tightening it and
thereafter sitting on her chest while A-3 and A-4 pulled the belt tighter. It is
also stated in the charge sheet that when the accused realized that the
deceased was still alive while they were taking the dead body on a
motorbike, it was A-1 who had again pressed her neck. Therefore, in the two
charge sheets, there are specific acts attributable to A-1 alone. In terms of
the law explained by the Supreme Court in the aforementioned decisions,
A-1 was aware of the case of the prosecution and therefore, there was no
serious prejudice caused to him as he was not prevented from defending
himself against the charge, even if it was not framed in that manner.
Therefore, as far as the second charge for the offence punishable under
Section 302/34 IPC is concerned, the conviction of A-1 does not get vitiated
merely because there is no separate charge against him for the substantive
offence under Section 302 IPC.

50. The case of the prosecution against A-1 for the offence punishable under
Section 302 IPC is based on circumstantial evidence. In Sharad
Birdhichand Sarda v. State of Maharashtra 1984 (4) SCC 116, the
Supreme Court explained that a case based on circumstantial evidence
should satisfy the following tests:

“(1) The circumstances from which the conclusion of guilt is
to be drawn should be fully established;

(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

Crl Appeal No. 209 of 2016 Page 24 of 42
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 human probability the act must have been done by the
accused.”

Deposition of PW-1

51. The Court would first like to begin with analysing the evidence of
Mahesh Chand (PW-1), who is the father of the deceased and, therefore, an
interested witness. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199,
the Supreme Court explained that
“in cases where the court is called upon to deal with the evidence of
the interested witnesses, the approach of the court, while appreciating
the evidence of such witnesses must not be pedantic. The court must
be cautious in appreciating and accepting the evidence given by
the interested witnesses but the court must not be suspicious of
such evidence. The primary endeavour of the court must be to look
for consistency. The evidence of a witness cannot be ignored or
thrown out solely because it comes from the mouth of a person who is
closely related to the victim.”

52. According to PW-1, the deceased was working in a private company
and had left home for work on 22 nd October 2009 but did not return. PW-1
states that he kept trying to contact the deceased on her mobile phone but it
was not responding as it appeared to be switched off. He kept searching for
her the whole night as well as the following morning. When she remained
untraced, he went to PS Sarojini Nagar and lodged a missing person report

Crl Appeal No. 209 of 2016 Page 25 of 42
(Ex.PW-1/D) as DD No.28A dated 23rd October 2009 where it is noted that
at around 8.15 pm, PW-1 had gone there and lodged the complaint. In that
he states that his daughter was around 17 years old, fair complexioned,
wearing blue jeans, shawl type chunni and sandals of light almond colour.
He states that she left home around 11.00 am on 22nd October 2009. The DD
was entrusted to SI Sanjeev Mandal (PW-3) who then took steps to trace
her.

53. PW-1 further stated that on 26th October 2009, he came to know through
the television news that an unclaimed dead body of a young girl had been
found by the police of PS Shahdara. He then went to PS Shahdara
wherefrom the police officials took him to the mortuary of GTB Hospital
where he identified the deceased‟s body. His identification statement was
marked as Ex.PW-1/A and he joined the inquest proceedings. PW-1 further
stated that his son, Rahul (PW-4), and his friend, Ashok, had also gone there
with him.

54. PW-1 further stated that A-1, whom he identified in Court, was having
friendly relations with the deceased and would often call her on her mobile
phone. He stated that he had himself called A-1 when the deceased went
missing. A-1 purportedly told him that he himself was trying to locate the
girl and advised PW-1 to also search for her. PW-1 stated that he could not
readily recall the mobile number of A-1 but had noted down the number on
a piece of paper. After referring to the said piece of paper, he stated the
A-1‟s number as 9268241820.

Crl Appeal No. 209 of 2016 Page 26 of 42

55. PW-1 stated that his wife, Sharda (PW-2), also spoke to A-1 but was not
able to throw light on the conversation between her and A-1. In his cross-
examination, PW-1 volunteered that he had a conversation with A-1 on
23rd November 2009, i.e. even after the recovery of the body of the
deceased. He further volunteered that the deceased was working in a
company by the name of Revlon which had many branch offices in Delhi.
PW-1 himself was a labourer and would usually leave for work at about 9
am. He volunteered that on 22nd October 2009, when he left for work, the
deceased was still at home. He returned that day only at 10 pm.

56. PW-1 went to PS Shahdara for the first time on 26th October 2009 but, at
that stage, did not disclose the name of A-1 as he was “mentally upset”.
Even when he lodged the missing person report at PS Sarojini Nagar, he did
not mention the name of A-1. He was confronted with his previous
statement to the police (Ex.PW-1/DA) where he had not disclosed that he
had called A-1 over the phone. It is, therefore, plain that neither at the time
of lodging the missing person report on 23rd October 2009 nor at the time of
the dead body being recovered did PW-1 disclose the name of A-1.

Deposition of PW-2

57. Turning now to the evidence of the mother of the deceased, Sharda
(PW-2), she too stated that the deceased was working in a company. The
deceased had three brothers of whom one was Rahul (PW-4) in whose name
the mobile number being used by the deceased was registered. PW-2 also
stated that the deceased left home at around 10.30 am on 22nd October 2009.
Although, during her deposition in the trial Court, PW-2 states that the

Crl Appeal No. 209 of 2016 Page 27 of 42
deceased had previously informed her that she knew A-1 and also that she
had spoken to A-1 twice, PW-2 did not disclose these facts to the police of
PS Sarojini Nagar. She does not appear to have even mentioned the name of
A-1 or given his mobile number to the police at PS Shahdara on
26th October 2009.

58. At this stage, it is important to refer to the statement first made by PW-2
to the police (Ex.PW-2/DA). Incidentally, this was recorded not
immediately after the dead body was found but only a month later on
28th November 2009. Why there was a delay of one month in recording her
statement is not explained. In that statement, she stated that the deceased
was working in a company and was using the mobile phone which was
registered in the name of PW-4. She spoke about PW-1 lodging a missing
person report at PS Sarojini Nagar on 23rd October 2009. She mentioned that
the deceased would often talk on the phone to a boy named Anil (A-1) who
lived in Shahdara. She further mentioned that the deceased had told PW-2
that A-1 wanted to marry her.

59. PW-2, in her statement to the police, disclosed the mobile number of A-
1 and that she herself had spoken to A-1 once or twice. When she called A-1
on 23rd October 2009, he told her that the deceased and him were in the
midst of an ongoing quarrel and had not spoken for 2-3 days. She claims that
he was evasive as to the whereabouts of the deceased before asking her to
continue searching for the deceased and abruptly disconnecting the phone.
When she again called him, she states that he continued to give evasive
replies and after that there was no conversation.

Crl Appeal No. 209 of 2016 Page 28 of 42

60. However, in her deposition in the trial Court, PW-2 appears to have
made improvements to her previous statement by suggesting that the
deceased had told A-1 that she would not marry A-1 and “that she is a
member of Schedule Caste and Anil was a member of Thakur community”.
She further claimed that, in response to this, A-1 said, “Jo cheese mujhe
pasand aati hai usey main har haalat main hasil kar leta hoon”.

61. The above statements were not disclosed by her when her statement was
first recorded by the police. She also did not disclose that she “had talked to
Anil. He told me that I should teach my daughter Dolly to do household
work”. She disclosed that her statement was recorded for the first time by
the IO of PS Shahdara on 28th November 2009. She claimed to have given
her statement on 26th October 2009 but did not know whether it had been
recorded. She claimed to have only given the name of A-1 to the police at
that time.

PW-1 and PW-2 unreliable

62. It is plain from the deposition of both PW-1 and PW-2 that they did not
mention the name of A-1 to the police till 28th November 2009, a month
after the occurrence. It seems improbable that either PW-1 or PW-2 would
be able to remember the mobile number of A-1 without referring to the piece
of paper on which it was written. In her further cross-examination by the
counsel for A-1, PW-2 stated, “My statement was recorded only once in PS
Shahdara on 28.11.2009”. She also said, “I had given the name and mobile
number of Anil on 26.10.2009 to officials of PS Shahdara. The police did
not record my statement when I disclosed the name of Anil to them. Police

Crl Appeal No. 209 of 2016 Page 29 of 42
officers of PS Shahdara met me intermittently between 25 th October 2009
and 28th November 2009″.

63. There is reason to believe, therefore, that till almost a month after the
recovery of the dead body, PW-1 and PW-2 themselves did not know or
suspect A-1 to be involved. The trial Court has, in the impugned judgment,
merely noted this fact and also the fact that no reasons had been given by the
prosecution “as to why the FIR was not registered immediately on the
recovery of the dead body”. However, the trial Court has failed to examine
the effect of this delay on the truthfulness of the depositions of these two
interested witnesses.

64. It also appears strange that if their grown-up daughter, aged 17 years,
was missing, that neither PW-1 nor PW-2 would first go to her place of
work to find out if she had come for work. There appear to be glaring
inconsistencies in the statements of PW-1 and PW-2, which raise serious
doubts as to their veracity and reliability.

Location of A-1 and the deceased

65. No attempt appears to have been made by the IO of the case, Inspector
Ombir Singh (PW-36), to find out where exactly the deceased was working.
He begins his narration only from 26 th November 2009 by which time, the
CDRs of the mobile number of the deceased was already available to him.
That CDR showed that on the intervening night of 22 nd-23rd October 2009,
three text messages were exchanged between the mobile phones of Ravi
Kumar (PW-8) and the deceased. As noted by the trial Court, this was at

Crl Appeal No. 209 of 2016 Page 30 of 42
2.14 am, 2.19 am, and 2.20 am in the early morning of 23rd October 2009.
The CDR showed that the mobile phone, at that point in time, was located at
New Modern Shahdara.

66. As far as A-1 is concerned, through the evidence of Mohit Aggarwal
(PW-7), the prosecution has sought to establish that the said mobile phone,
although not issued in the name of A-1, was in fact being used by A-1. The
CDR of the mobile number used by A-1 showed that at the relevant time, i.e.
2.14 am on 23rd October 2009, that phone was also at New Modern
Shahdara. However, this by itself does not mean much since A-1 resides at
New Modern Shahdara ordinarily.

67. It is significant that in his statement under Section 313 CrPC, A-1 did
not dispute that he was using the said mobile phone. This is evident in his
answer to Question No.8 which is as under:

“Q.8 It is further in evidence against you that your mobile
number was 9268241820 and mobile number of deceased
was 9015260532. What have you to say?

Ans. It is a matter of record.”

68. A-1 also admitted as correct that he was friends with the deceased and
used to talk to her and that he was residing at Shahdara. He denied that
PW-2 called him about the deceased having gone missing. He appeared to
accept the fact that the deceased was working in a private company. He also
did not deny that the phone that he was using was issued in the name of one
Bhuvnesh Gupta. When the evidence in the form of the CDRs and the
original customer application form was put to him under Section 313 CrPC,
he answered that “it is a matter of record”.

Crl Appeal No. 209 of 2016 Page 31 of 42

69. From the answers given by A-1 himself, it could be safely concluded
that the prosecution was able to prove that A-1 was using the mobile number
9268241820 which was issued in the name of one Bhuvnesh Gupta and he
accepted the correctness of the CDRs of that mobile phone for the period
from 1st July 2009 to 30th October 2009.

70. There has been extensive discussion in the trial Court judgment on the
CDRs. The trial Court noted that both A-1 and the deceased had spoken to
each other on 22nd October 2009 at 11.57 am and 1.10 pm. At the said times
they were not at the same location. The location of the deceased and A-1
being together at any time thereafter is not established by the CDRs.

71. This Court has also carefully perused the very same CDRs (Ex.PW-
14/C). The record of calls ends on 28th October 2009. The deceased and A-1
exchanged calls at 11.57 am, 1.10 pm, and 1.39 pm on 22nd October 2009.
Thereafter, there is no exchange of calls between the two mobile numbers.

72. As for the location of the two mobile phones, the Court has examined
the CDR marked as Ex.PW-16/F. From the said CDR it can be seen that
when A-1 made a call to the deceased at 11.57 am on 22nd October 2009, the
deceased was at the NDMC Community Centre, Laxmibai Nagar. She
appears to have received some other call at 12.52 pm when she was at
Sunlight Colony. At 1.10 pm, when she received a call from A-1, she was at
Khichripur. When she spoke to him again at 1.39 pm, she was at Patparganj.
At 2.14 am, 2.19 am, and 2.20 am on 23rd October 2009, when she
exchanged text messages with the mobile phone of PW-8, she was in the

Crl Appeal No. 209 of 2016 Page 32 of 42
vicinity of Gali No.6, New Modern Shahdara.

73. Ex.PW-16/B when tallied with the Cell ID Chart (Ex.PW-14/E), shows
that the location code for Nand Nagri, J.J. Colony, Shahdara is between
22272 and 22276. From the CDR of the phone used by A-1 (Ex.PW-14/C),
it emerges that he was at location code 21394 (Jagatpuri) at 7.53 am on
22nd October 2009. Thereafter, at 9.51 am on 22nd October 2009, he was at
location code 22210 (Vishwakarma Nagar, Shahdara). During the critical
hours between 11.12 pm on 22nd October 2009 and 7.23 am on
23rd October 2009, he was at location 22275 which is at Nand Nagri, J.J.
Colony, Shahdara. The exact address of A-1 at this point in time is not clear
but going by the evidence of PW-36, when they ultimately arrested A-1 on
23rd January 2010, his address was given as Gali No.12, New Modern
Shahdara.

74. A telecommunication tower may cover a large area. Apparently, A-3 and
A-4 were also residents of the same area. These CDRs did not, therefore,
help to establish that during the crucial hours of the intervening night of
22nd-23rd October 2009, the deceased was with A-1. If one compares this
tower location, i.e. 22275 as depicted in Ex.PW-14/E, with the location
details of the mobile phone of the deceased, there is a difference inasmuch
as the location of her phone is shown as Gali No.6, New Modern Shahdara,
Jagatpuri.

75. Whether the towers at Nand Nagri, J.J. Colony, Shahdara and those at
Jagatpuri, New Modern Shahdara pertain to the same area could be

Crl Appeal No. 209 of 2016 Page 33 of 42
anybody‟s guess. Neither PW-14, who proved the CDRs for the phone of
A-1, nor PW-16, who proved the CDRs of the phone of the deceased, could
throw any light on this crucial aspect. In any case, CDRs can be
corroborative evidence but not substantive evidence. They can only
approximate the locations of the persons who may be using those
instruments. It certainly cannot provide proof that A-1 was with the
deceased during the intervening night of 22nd-23rd October 2009.

76. Yet again, this was but one circumstance, namely that it is possible that
during the intervening night of 22nd-23rd October, 2009, the deceased and
A-1 were in the same locality. It must be recalled that in the charge sheet,
the case of the prosecution is that A-1 and the deceased had consensual sex
during the intervening night of 22nd-23rd October 2009 and it was the other
accused persons who also insisted on having sex with her and when she
resisted, she was raped. The co-accused persons have all been acquitted and
the State has not filed any appeal against their acquittal.

Motive not proved

77. The motive for commission of the murder itself is traced to the deceased
threatening to go to the police after she was raped by the co-accused. It is
this, according to the prosecution, which triggered the series of acts
thereafter with A-1 strangulating her with a belt and then sitting on her chest
and the other accused tightening the belt. If the involvement of the co-
accused is done away with then there is no explanation as to what motive
A-1 might have had to murder the deceased. After all, even as per the
prosecution‟s version of events, the deceased and A-1 did have consensual

Crl Appeal No. 209 of 2016 Page 34 of 42
sexual intercourse. There was no question, therefore, of A-1 having any
motive to kill the deceased after that. They were acquaintances known to
each other and there must be a very strong reason for A-1 to take such an
extreme step. No such motive emerges from the case of the prosecution.

78. In a case of this nature, where other circumstance cannot be said to be
clearly established by the prosecution, motive assumes great significance. It
forms a vital link in the chain of circumstances. With the co-accused taken
out of the equation, the story of the prosecution has a huge gap as regards
the motive for A-1 to individually commit the murder of the deceased. This
aspect has been completely lost sight of by the trial Court. This was one
important circumstance which, qua A-1, was not proved by the prosecution
at all.

Circumstances (a) to (d)

79. At this stage, it is important to examine which of the circumstances put
forth by the prosecution to prove the guilt of A-1 for the offence of murder
of the deceased can be said to have been proved.

80. The prosecution has proved that the death of the deceased was
homicidal. There were injuries on her private parts and there were recent
tears on the vaginal hymen. That the deceased was sexually assaulted and
then killed is proved by the medical evidence. Circumstance (a), therefore,
can be said to be proved by the prosecution.

81. As regards circumstance (b), it is noticed that even in his Section 313
CrPC statement, A-1 does not dispute that he was acquainted with the

Crl Appeal No. 209 of 2016 Page 35 of 42
deceased before her death. Circumstance (b) can therefore be said to be
proved.

82. Circumstance (c) is that the deceased last left her home at about 10 am
on 22nd October 2009. According to the prosecution the CDR (Ex.PW14/C)
showed that A-1 spoke “repeatedly from his mobile phone” to the deceased
on her mobile phone on 22nd October 2009 before her mobile phone was
switched off.

83. What has been proved by the CDRs of both phones is that the deceased
is shown to have left her home at around 10 am on 22nd October 2009. The
deceased and A-1 exchanged calls at 11.57 am, 1.10 pm, and 1.39 pm on
22nd October 2009. Thereafter, there is no exchange of calls between the two
mobile numbers. Therefore circumstance (c) as put forth by the prosecution
cannot be said to be proved.

84. Circumstance (d) is proved to the extent that PW-1 and PW-2 lodged the
missing person report at PS Sarojini Nagar on 23rd October 2009.

Circumstance (e)

85. As regards Circumstance (e), PW-8 admits to sending the deceased an
SMS. Interestingly, this witness actually turned hostile but one of his
statements during his examination-in-chief is worth noting. He stated as
under:

“I had received reply of my messages passed on to me by the
deceased Doli on my mobile phone. One was „I love you too‟
and another was „Please call me.”

Crl Appeal No. 209 of 2016 Page 36 of 42

86. Despite receiving that message, why PW-8 did not call her till the next
day is not clear. He had given a previous statement to the police – from
which he resiled – to the effect that he did send a message from his mobile
number to that of the deceased on the intervening night of 22 nd-
23rd October 2009. This clearly showed that the deceased was alive till about
2.14 am on the morning of 23rd October 2009. Whatever happened to her
must have happened thereafter. In his cross-examination by the counsel for
A-1, he admitted sending a message to her in the early hours of
23rd October 2009. His reply in this regard is:

“I had sent message to Doli at about 1/1.30 a.m. (night). I had
received two messages of Doli on my phone within few
minutes of my sending message to her. I had no conversation
with Doli on intervening night of 22/23.10.2009.”

87. It appears that PW-8 himself was a suspect because he admits that the
police had taken his parents to PS Shahdara but he was unable to provide a
reason as to why. He admits that “it is correct that police had suspected me
as culprit for the murder of Doli.” PW-8 had, in fact, been confined by the
police for about four hours on 28 th November 2009. He volunteered that
“Doli was in private service at Ansal Plaza in the area of Lodhi Road, New
Delhi.” Why this evidence was not further developed is a mystery.

88. Circumstance (e), therefore, is proved to the extent that it shows that the
mobile phone of the deceased was at Gali No.6, New Modern Shahdara.
This is, more or less, the same locality of A-1 which is supposed to be at
Gali No.12, New Modern Shahdara.

Crl Appeal No. 209 of 2016 Page 37 of 42

Circumstances (f) to (h)

89. As regards circumstance (f) it was proved by the CDRs that in the
intervening night of 22nd-23rd October 2009, as is apparent from Ex.PW-
14/D, A-1 was in the vicinity of Block-B5, Nand Nagri, J.J. Colony.

90. The circumstance (g) regarding recovery of the dead body in a ganda
nala at Balbir Nagar stands proved. It is of course true that Balbir Nagar is
near the house of A-1 but that, by itself, cannot mean that A-1 was with the
deceased during the relevant time.

91. Circumstance (h) that the deceased used to reside at Sarojini Nagar is
proved. Her presence at New Modern Shahdara in East Delhi cannot be said
to be proved, particularly since it is not shown whether the police actually
went to her place of employment to find out whether at all she went to work
on that day. The police appeared to have not inquired into what the deceased
was otherwise doing.

Circumstance (i)

92. Circumstance (i), which is that the deceased did not return home
prompting PW-2 to make a call to A-1, cannot be said to be proved. The
evidence of PW-1 and PW-2 in this regard does not inspire confidence. It
appears highly unlikely that PW-1 and PW-2 would know the mobile
number of A-1 so as to make a call to him and that they would somehow
have noted his number on a slip of paper. This part of the case of the
prosecution raises serious doubt and neither PW-1 nor PW-2 can be said to
be speaking the truth.

Crl Appeal No. 209 of 2016 Page 38 of 42

93. If indeed PW-1 and PW-2 knew that A-1 was friends with the deceased
and used to talk to her often, there was no question of their not disclosing
this fact immediately to the police. If indeed PW-2 spoke to A-1 on
23rd October 2009, i.e. the date immediately after her daughter went missing,
and he gave an evasive reply, there is no way that she and her husband
would not have disclosed this very crucial fact to the police upon finding the
dead body of the deceased. This statement ought to have been recorded then
and there with the police. That nothing happened till 28th November 2009
clearly shows that this entire story, namely that PW-1 and PW-2 knew that
their daughter was friends with A-1 and that his mobile number was what it
ultimately was discovered to be, is false.

94. When the dead body of a person who had gone missing is recovered, as
has happened in this case, there can be no excuse whatsoever for the police
not to immediately register an FIR. PW-36 has no explanation whatsoever to
offer for this serious lapse. It appears that the case was developed from the
CDRs of the deceased with PW-1 and PW-2 being clueless as to what
happened to their daughter. They were also silent about what their daughter
was actually doing. They did not appear to know where she was working.
This appears strange considering that she was only 17 years old. The police
also did not make any attempt to know where the deceased was working.

95. What was a blind case was probably developed through the CDRs by
looking into the mobile phones that were in touch with that of the deceased
and then trying to develop a case around it. Consequently, as far as
circumstance (i) is concerned, it cannot be said to be proved.

Crl Appeal No. 209 of 2016 Page 39 of 42

Circumstances (j) and (k)

96. As far as the circumstance (j) is concerned, apart from the evidence of
the IO, there is no independent evidence to show that A-1 did not hand over
his phone to the IO. In any event, the IO was not precluded from obtaining
the CDRs of that phone.

97. As far as circumstance (k) is concerned, there is considerable doubt on
the manner in which A-1 was arrested on 23rd October 2010 and how he
came to be identified by the police if they did not even have his photograph.
It must be remembered that the mobile phone used by A-1 was in fact issued
in the name of one Bhuvnesh Gupta whose photograph was on the customer
application form pertaining to that mobile phone. Therefore, it would not
have been possible for the police, without a photograph of A-1, to go
looking for him. The evidence regarding A-1 having gone missing for
several months and then being found in his own residence at Gali No.12,
New Modern Shahdara is not very convincing. Circumstances (j) and (k)
cannot be said to be proved beyond reasonable doubt.

Unproved circumstances

98. Now to examine what has not been proved, the crucial circumstance of
the conversation between PW-2 and the accused on his mobile phone has
not been proved. There is no proof of the motive for commission of the
crime. The circumstances viewed collectively only probabilise that the
deceased and A-1 were in the same locality on the intervening night of
22nd-23rd October 2009 and not that they were together. This circumstance
by itself does not complete the entire chain of circumstances regarding the

Crl Appeal No. 209 of 2016 Page 40 of 42
murder of the deceased. It also does not stand proved that A-1 threw the
dead body of the deceased in the ganda nala by himself.

99. Applying the law relating to circumstantial evidence, it cannot be said in
the present case that each circumstance has been fully proved beyond
reasonable doubt. There are many gaps in the chain of circumstances and
crucial things have not been proved. It is not possible to base the conviction
of the Appellant only on the CDR which by itself cannot constitute a
substantive piece of evidence but only a corroborative piece of evidence.
There are no recoveries made which could connect A-1 to the commission
of the crime.

100. As a result, the Court is unable to agree with the conclusion reached by
the trial Court that circumstances (a) to (k) above have all been proved by
the prosecution beyond reasonable doubt. As has repeatedly been held by
the Supreme Court, suspicion, however strong, cannot take the place of
proof. The Appellant is, therefore, entitled to the benefit of doubt. He,
therefore, stands acquitted even of the offence under Section 302 IPC.

Conclusion

101. The impugned judgment of the trial Court convicting the Appellant for
the offences under Sections 302, 376 and 201 IPC and the order on sentence
sentencing him in the manner indicated hereinbefore for the said offences
are hereby set aside. The appeal is allowed in the above terms.

102. The accused shall be released forthwith unless wanted in some other
case. He shall comply with the requirements of Section 437A CrPC to the

Crl Appeal No. 209 of 2016 Page 41 of 42
satisfaction of the trial Court. The trial Court record be returned together
with the certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

FEBRUARY 06, 2018
‘rm/anb’

Crl Appeal No. 209 of 2016 Page 42 of 42