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Kapil Kumar Beri vs The State Of Delhi (N.C.T. Of … on 19 December, 2018

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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 31st October, 2018
Pronounced on: 19th December, 2018

+ CRL. A. 704/2001

KAPIL KUMAR BERI ….. Appellant
Through: Mr. D. Hasija Advocate with
Mr. Anirudh Tyagi, Advocate

versus

THE STATE OF DELHI (N.C.T. OF DELHI) ….. Respondent
Through: Mr. Sanjeev Sabharwal, APP
for the State with SI Ajay
Misra, Police Station Delhi
Cantt.
CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

1. This appeal was instituted in September, 2001 to assail the
judgment dated 10.08.2001 of the Additional Sessions Judge (ASJ) in
Sessions Case No.257/1996 and the order on sentence dated
31.08.2001 passed in its wake whereby the appellant was held guilty
and convicted on the charge for the offence punishable under Section
376 of the Indian Penal Code, 1860 (IPC), he having been awarded
rigorous imprisonment for ten years with fine of Rs.5,000/- – in default
further simple imprisonment for three months, with benefit of set off
under Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

Crl. A. No.704/2001 Page 1 of 22

2. The appeal has come up for final adjudication before this court
seventeen long years after it was presented. During the interregnum,
the appellant died (on 16.02.2018). On her application
(Crl.M.A.33211/2018) his widow Anita Beri was permitted, by order
dated 28.09.2018, to prosecute the appeal further in terms of proviso
to sub-Section (2) of Section 394 Cr.P.C.

3. The record of the appeal shows that the trial court record was
requisitioned and placed before the court. The appeal, however, was
admitted and put in the list of „Regulars‟ the sentence having been
suspended by order dated 26.11.2001. The appeal came up for hearing
before the court thereafter only on 22.09.2010. By this time, the trial
court record was lost by the registry. Pursuant to the directions which
appear to have been issued on the administrative side, efforts were
made to retrace the missing record, but to no avail. Pursuant to further
administrative instructions, the trial court has reconstructed the record,
with the assistance of both sides, to the extent possible. The same has
been presented and placed before the court. The arguments of both
sides have been heard on the basis of available record.

4. The Sessions case against the appellant had arisen from the
report (charge sheet) under Section 173 Cr.P.C. which had been
submitted by the police on the basis of evidence gathered during
investigation of first information report (FIR) No.25/1996 of Police
Station Delhi Cantt, the said FIR, it may be noted, itself having been
registered on 13.01.1996 on the basis of statement (Ex.PW-2/A) of the
prosecutrix, described to be a girl then aged 16 years, Sub-Inspector

Crl. A. No.704/2001 Page 2 of 22
Durga Lal (PW-11), posted in the Police Station on the relevant date
having made the endorsement (Ex.PW-11/A), leading to such action at
4:00 p.m. for getting the case registered, the prosecutrix having been
brought to the Police Station by Ms. Cicily Francis (PW-1), a person
connected to a non-governmental organization (NGO) styled as
Women Action for Development (WAFD) having their office in Vikas
Puri, New Delhi. The prosecutrix, it must be mentioned here, is the
daughter of the appellant, he, during the relevant period, having been
employed in government service as an electrician and posted earlier in
the organization of Garrison Engineer (Air Force) at Udhampur
(Jammu Kashmir) and later transferred to the office of Garrison
Engineer (West) at Delhi Cantt. On the date of the registration of the
FIR which led to the Sessions trial, and for a quite long period prior
thereto the family was living in a house described as 139, Panchwati,
Delhi Cantt.

5. The FIR (Ex.PW-4/A) itself showed, it being revealed in the
statement of prosecutrix forming the contents thereof that she was
pregnant with a foetus of about three months duration at that point of
time, the evidence also disclosing that she delivered a girl child in due
course. It also may be noted here itself that prior to the registration of
this FIR (Ex.PW-4/A), the prosecutrix had been missing from her
house, this having been reported to the police by her father, i.e. the
appellant, FIR No.480/1995 having been registered in the same Police
Station (Delhi Cantt) at 22:45 hours on 21.12.1995 at the instance of
the appellant, allegations having been made about commission of an
offence under Section 363 IPC, the first informant (the appellant)

Crl. A. No.704/2001 Page 3 of 22
having expressed suspicion about involvement of a boy named
Bhushan having seduced and kidnapped her, she not having returned
home after leaving for a training centre for sewing sometime around
9:00 a.m. in the morning. It has been conceded by PW-11 (the
investigation officer) that the police action on the said FIR
No.480/1995 under Section 363 IPC, registered on the complaint of
the appellant suspecting involvement of the young person named
Bhushan was concluded with the report “untraced”, close on the heels
of the registration of the present FIR.

6. According to the case for the prosecution, founded essentially
on the version of the prosecutrix as indicated by her statement
(Ex.PW-2/A) on which FIR was registered, and also her statement
during investigation under Section 164 Cr.P.C. (Ex.PW-10/A), that the
sexual assaults by the appellant commenced in 1991 when the family
was living in Udhampur, her maternal uncle i.e., husband of her
mother’s sister (mausa) had died in Indore and consequently her
mother had to leave town for about a week. She alleged that she and
her sister and younger brother were sleeping together in a room when
her father (the appellant) woke her up around mid-night and made her
accompany him to his room. She stated that after making her lie down
with him on the double bed, the appellant had removed her lower
garments and thereafter committed rape against her wishes. She
alleged that thereafter whenever he would find her alone he would
routinely commit such act. She stated that when she had become
pregnant, and the father had learnt about this, her menstruation having
stopped, he had brought some medicine which he would make her

Crl. A. No.704/2001 Page 4 of 22
consume ascertaining repeatedly if the menstruation cycle had
recommenced or not. She alleged that, on 18.12.1995, her father had
called her to his office and made her write on a paper, copying from a
pre-prepared text written in some diary, the contents whereof were to
indicate that she had been raped by Bhushan and that she did not want
to live any longer. She alleged that, on 19.12.2015, the appellant had
again asked her about her menstruation and, on the next day, i.e.,
20.12.1995 he told her that if she wanted to protect her self-respect,
she should commit suicide on railway line. She stated that she had
assured her father that she would not return home the next day and
instead commit suicide. On 21.12.1995, she went to the sewing centre
where she told PW-1 about the incident, she having been taken to a
place called Mother Teresa Home where she was accommodated
before she was brought to the Police Station on 13.01.1996, the matter
being within the knowledge of two other women named Manju and
Munni Yadav who were activists of the said Women Organization.

7. There is ample evidence to show that the prosecutrix was a
minor (born on 09.03.1979) on the date of registration of the FIR
(13.01.1996). There is ample proof that she was pregnant on the said
date, the age of the pregnancy described then as about three months,
the condition being reflected in her medico-legal report (MLC)
(Ex.PW-9/A). During her own testimony, it came out that she
delivered a female child on 01.08.1996, this indicating the date on
which she would have conceived the said child to be sometime in the
end of October, 1995, she possibly being pregnant for about (or less
than) two months on the date 21.12.1995 when she left home. But,

Crl. A. No.704/2001 Page 5 of 22
curiously, as per her MLC (Ex.PW-9/A) she had indicated to the
examining medical officer her last menstruation period (LMP) to be
relatable to 28.11.1995, which would be a little over three weeks prior
to she having left home on 21.12.1995.

8. The trial was held on the charge for the offence under Section
376 IPC, the gravamen being that the appellant had repeatedly
subjected the prosecutrix to forcible sexual intercourse during the
period 1991 to 12.01.1996 at Udhampur and Delhi Cantt. The
prosecution examined twelve witnesses. They would include Ms.
Cicily Francis (PW-1), an activist of the NGO; the prosecutrix (PW-

2); Smt. Manju (PW-3), a volunteer of the said NGO; Head Constable
Prakash Singh (PW-4), the duty officer who registered the FIR
(Ex.PW-4/A) of the case; Constable Ramesh Kumari (PW-5) who had
accompanied the prosecutrix to Safdarjung Hospital for medical
examination; Constable Krishan Singh (PW-6) who was with the
investigating officer at the time of the appellant being arrested after
personal search (Ex.PW-6/A), immediately after registration of the
FIR on 13.01.1996, he (the appellant) concededly having come to the
Police Station himself; Dr. Sandeep Agnihotri (PW-7), who had
medically examined the appellant in Safdarjung Hospital and having
given report (Ex.PW-7/A) confirming his physical capacity to engage
in sexual intercourse; Dr. N.K. Mittal (PW-8), the radiologist of
Safdarjung hospital (Ex.PW-8/A) about radiological age of the
prosecutrix confirming it to be less than eighteen years; Dr. Rachna
Yadav (PW-9) of Safdarjung hospital, who proved the MLC (Ex.PW-
9/A) based on the medical examination of prosecutrix by another

Crl. A. No.704/2001 Page 6 of 22
medical officer Dr. Ruchi; the Metropolitan Magistrate (PW-10) who
recorded the statement (Ex.PW-10/A) of the prosecutrix under Section
164 Cr.P.C.; the investigating officer (PW-11) SI Durga Lal; and
Constable Brij Mohan (PW-12), who had accompanied the appellant
for his medical examination to Safdarjung hospital.

9. The appellant was examined under Section 313 Cr.P.C. to elicit
his explanation for the incriminating evidence wherein he admitted the
evidence that during 1991 he was posted in Udhampur (Jammu
Kashmir). He would state that he had a government accommodation
(residential), but, he himself was deputed in field area (Zindrah). He
admitted the evidence that his wife had gone away to Indore on
account of death of her brother-in-law when the family was stationed
in Udhampur.

10. The evidence has brought out that the prosecutrix was not good
in studies and, thus, had discontinued formal schooling. It also
brought out that she had started going to the vocational training centre
run by the NGO of PW-1 in their branch in Raj Nagar, Palam area
wherein she would learn sewing. Admitting this part of the evidence
to be correct, the appellant denied that using the absence of his wife as
an opportunity he had indulged in sexual intercourse at any stage with
the prosecutrix, terming the version to this effect to be false and
concocted leveled at the instigation of PW-1. He referred to the
missing report lodged by him with the police on 21.12.1995.

11. The appellant submitted a detailed typed statement
accompanied by four handwritten pages (along with certain other

Crl. A. No.704/2001 Page 7 of 22
material) praying that the same may be read as part of his statement.
In the said handwritten note dated 12.05.1998 he explained that the
prosecutrix had failed twice in fifth standard and thrice in the sixth
standard and used to show odd behavior for which reason her formal
schooling had been stopped and she had been sent to the sewing
centre. He stated that on account of immaturity shown by the
prosecutrix he would often receive complaints. He stated that on one
day while returning from the school the boy named Bhushan had
indulged in teasing her on which account the brother of the prosecutrix
had beaten him up and in that context the matter had even reached
Police Station where both sides were pacified, no formal case having
been registered. He referred to FIR No.480/1995 lodged by him with
suspicion that Bhushan was behind her kidnapping, but the police
would not co-operate, his efforts to trace her out having not been
successful. On 01.01.1996, his father had died which pre-occupied
him with the death rites. He stated that he had discovered the “suicide
note” which indicated that Bhushan had violated her modesty on
which account she did not want to live. He stated that he had handed
over the said “suicide note” to the investigating officer of the case
lodged by him but for twenty-three days the girl could not be located.
On 13.01.1996, he learnt that his daughter had been found and was in
Police Station Chanakya Puri. He stated that he had accompanied his
wife to the Police Station but he was not allowed to return home and
instead arrested in the false case. He made certain assertions about
certain women connected to the NGO suspecting them to be behind
the design to have him falsely implicated. He requested the

Crl. A. No.704/2001 Page 8 of 22
examination of the prosecutrix by a psychiatrist and the DNA test of
the child delivered by the prosecutrix, as also the scrutiny of the
“suicide note” copy whereof was also placed by him before the trial
Judge. He stated that the husband of his wife’s sister (mausa of the
prosecutrix) had died in Indore on 04.01.1991. Referring to the
allegations of first rape around that period, he explained that during
those days he was “on duty” in field station at Zindrah, 15 FOD and
was not allowed leave (of absence) to come home at Udhampur.

12. The appellant led defence evidence. The reconstructed record
and the trial court judgment read together would show that the
appellant examined his wife Anita Beri (DW-1); his other daughter
Jaya Beri (DW-2); his mother-in-law Raj Kumari (DW-10); his sister-
in-law Sheetal (DW-11), and his son Gaurav Kumar (DW-12) to bring
home facts for discrediting the version of the prosecutrix. He also
examined Ram Chander Dharam Dasai (DW-4), Principal and Mr.
S.S. Dhingra (DW-6), Office Superintendent of the Kendriya
Vidyalaya, Udhampur and Delhi respectively, where the prosecutrix
was a student during 19.11.1986 to 11.07.1991 and from 06.08.1991
onwards respectively primarily to bring home the fact that her
academic performance was very poor. He further examined official
witnesses from the department of Garrison Engineer – Mr. P.P. Mehta
(DW-3), Mr. S.K. Sharma (DW-5) and Mr. Chakradhar (DW-8) – to
prove that he was on duty in the field area and had not been allowed
leave so as to be able to come home during the period the mother of
the prosecutrix was away from Udhampur, she having gone to Indore.

Crl. A. No.704/2001 Page 9 of 22

13. The appellant also examined Sub Inspector B.L. Sharma (DW-

7), who was the investigating officer of FIR No.480/1995 under
Section 363 IPC, the witness confirming that the document described
as “suicide note” was handed over to him by the appellant but he had
not sent the same for comparison of the writing to forensic laboratory.

14. The trial court accepted the evidence of the prosecutrix and held
that it had proved its case beyond all doubts thus holding the appellant
guilty, as charged, rejecting the defence evidence, observing that there
was no reason for false implication.

15. During the court testimony, the prosecutrix (PW-2) narrated the
sequence of events on the same lines as set out in the FIR, from the
time when the family was in Udhampur, her mausa having expired in
Indore in 1991, on which account her mother was away and in her
absence the appellant having committed rape for the first time on a
particular night and right through the period till 21.12.1995 when she
left home to resurface thereafter on 13.01.1996 when this FIR was
registered.

16. As noted earlier, the prosecutrix was born on 09.03.1979. The
date of death of her mausa in Indore has come on record as
04.01.1991. This would mean she was less than twelve years in age on
the relevant date. Her MLC (Ex.PW-9/A) would show the age of
menarche to be fourteen years. This would mean she was at pre-
pubertal age when she was allegedly first subjected to sexual
intercourse. The MLC does indicate torn hymen which is one possible
factor of confirmation of sexual intercourse. But, it also shows that she

Crl. A. No.704/2001 Page 10 of 22
was pregnant on the date of medical examination on 13.01.1996 in
which circumstance, it is inherent that she had been subjected to
sexual intercourse. But, crucially, neither in the MLC nor in any other
part of the evidence the age of the foetus as on 13.01.1996 is clearly
indicated, there perhaps never having been any such probe.

17. The prosecutrix would speak of a series of events during which
she was raped by the appellant, whenever there was opportunity on
account of absence of her mother from home. This, according to her,
had continued even after the appellant had been transferred from
Udhampur to Delhi and the family, having shifted here, initially living
with her paternal grandfather in Janakpuri and later moving to
Panchwati in Palam area.

18. The prosecution heavily relied on the evidence of PW-1 she
being a program officer in the NGO, in the Sewing Centre of which
the prosecutrix had been attending classes for vocational training after
having given up studies through formal school education. PW-1
would state that the prosecutrix was found to be in a sad disposition on
21.12.1995 and upon being asked, she had shared what had happened
with her at the hands of her father (the appellant) since 1991. She
would also state that the prosecutrix was pregnant at that point of time.
She deposed that since she had left for Calcutta on the same day, and
made arrangements for the prosecutrix to be accommodated in Prem
Dham at Mehrauli, an institution described as Mother Teresa Home.
She stated that she had instructed all concerned that no one was to
disclose the whereabouts of the prosecutrix during her absence. She

Crl. A. No.704/2001 Page 11 of 22
returned to Delhi on 11.01.1996 and then made inquiries learning that
the appellant (the father of the prosecutrix) had lodged a missing
report along with which he had produced a letter left behind by her.
She stated that she had got in touch with the Deputy Commissioner of
Police and thereafter took the prosecutrix to Police Station Delhi Cantt
where, on her statement, the police proceedings were recorded, the
custody of the prosecutrix having been entrusted to her after medical
examination.

19. In sharp contrast to the above version, the defence evidence
primarily led through the accounts of Anita Beri (DW-1), Jaya Beri
(DW-2) and Govind Kumar (DW-12), the mother, sister and brother of
the prosecutrix brings out facts which project the version of the
prosecutrix as improbable, there being no occasion or opportunity for
the appellant to molest his own daughter to exploit her sexually. DW-1
pointedly testified that the allegations made by her daughter (the
prosecutrix) were “totally false” he being posted at the relevant point
of time in Zindrah, a remote field post about forty kilometers away
from Udhampur where the family would reside. The service record
produced by the official witnesses called from the department of
Garrison Engineer does show that the appellant was not granted any
leave of absence during the said period. But, even if it were to be
assumed that he might have visited the family at Udhampur one way
or the other, particularly when his wife was away to Indore, the
defence evidence brought in through the testimonies of the other
daughter (DW-2) and the son (DW-12) bring out that the children
would sleep together under the care of a lady in the neighborhood,

Crl. A. No.704/2001 Page 12 of 22
there being no occasion for the father to stealthily take away the
prosecutrix to another portion of his house so as to molest her during
the night. Similar are the circumstances narrated by these witnesses in
defence with regard to the life of the family after the appellant was
transferred to Delhi.

20. It is true that in a case involving charge of the commission of
the offence of rape, the solitary evidence of the prosecutrix may be
sufficient to bring home the guilt. But, for this, the same must inspire
confidence and found to be absolutely trustworthy, unblemished and
of sterling quality. [Krishan Kumar Malik vs. State of Haryana, (2011)
7 SCC 130; and Atender Yadav vs. State Govt. of NCT of Delhi,
2013(4) JCC 2962]. Generally speaking, the evidence of the
prosecutrix is given pre-dominant consideration. But, if the testimony
of the prosecutrix suffers from lacunae or if her version, upon
scrutiny, against the backdrop of evidence read in entirety, is found to
be improbable it cannot become the basis of conviction. An inference
of guilt can be drawn only if the facts proved are wholly consistent
with the guilt of the accused and in case of conclusions to the contrary,
the court being duty bond to reject the charge. After all, there is no
presumption that the statement of the prosecutrix is always correct or
liable to be accepted even though it suffers from embellishments or
exaggerations.

21. In Sudama Pandey Ors. vs. State of Bihar (2002) 1 SCC 679,
the Supreme Court cautioned that the court has to be watchful and
must avoid the danger of allowing suspicion to take the place of legal

Crl. A. No.704/2001 Page 13 of 22
proof, there being a long mental distance between “may be true” and
“must be true”, the same distinguishing “conjectures from sure
conclusions”.

22. In Narender Kumar vs. State (NCT of Delhi) (2012) 7 SCC 171,
the Supreme Court held that the accused must also be protected
against possibility of false implication, it observing thus:-

“29. However, even in a case of rape, the onus is always
on the prosecution to prove, affirmatively each ingredient
of the offence it seeks to establish and such onus never
shifts. It is no part of the duty of the defence to explain as
to how and why in a rape case the victim and other
witnesses have falsely implicated the accused. The
prosecution case has to stand on its own legs and cannot
take support from the weakness of the case of
defence. However great the suspicion against the accused
and however strong the moral belief and conviction of the
court, unless the offence of the accused is established
beyond reasonable doubt on the basis of legal evidence
and material on the record, he cannot be convicted for an
offence. There is an initial presumption of innocence of
the accused and the prosecution has to bring home the
offence against the accused by reliable evidence. The
accused is entitled to the benefit of every reasonable
doubt.”

23. In cases of this nature, the issue of delay in reporting is of great
import. The court is duty bound to examine, if there has been
inordinate delay, to find if there is any justifiable explanation for the
same, absence of such explanation not only causing prejudice to the
defence but also rendering the testimony of the prosecutrix “unnatural
and improbable” [Rajesh Patel vs. State of Jharkhand, (2013) 3 SCC
791].

Crl. A. No.704/2001 Page 14 of 22

24. The case of Atender Yadav (supra) was decided by a division
bench of this court. The circumstances in the case were similar in that
the victim of the offence of rape was alleged to be daughter of the
accused. The trial court had returned finding of guilty. This court
accepted the appeal setting aside the judgment and conviction, inter
alia, observing thus:-

“62. We are completely at loss and rather anguish to find
that the prosecutrix who has alleged repeated sexual
intercourse by her father at no stage had complained
about her suffering any injury in her private part, any
kind of bleeding, or any vaginal discharge or suffering
any kind of pain, which could have called for urgent
medical attention or in upsetting her regular schooling.
Nothing of this sort has surfaced and this creates doubt in
our mind to suspect the prosecution case set up at the
instance of prosecutrix backed by her mother. We cannot
lose our attention from the fact that the father of the
prosecutrix is after all a grown up and physically able
bodied man and if such a man commits sexual intercourse
with a small child of 11 years, then there is every
likelihood that prosecutrix will suffer some injury on her
private part or there may occur some kind of tear in the
vaginal canal which is usually quite narrow in the case of
minor child or at least suffering of a severe pain by such
a minor child, but nothing of this kind had happened to
the prosecutrix. …”

25. In the considered view of this court, there are many a fact and
circumstance which have unfortunately been glossed over by the trial
court but which render the account given by the prosecutrix to be
wholly improbable and unreliable. Additionally, this court is of the
view that neither the investigating agency nor the trial court were fair
to the appellant at any stage of the process, this also vitiating the result

Crl. A. No.704/2001 Page 15 of 22
of the probe and the trial. It appears easy solutions were picked out,
the need for deeper probe, as was being demanded by the appellant
from the beginning, given a go-bye, without any accountability. The
defence evidence, particularly of the close members of the family was
discarded in the teeth of the settled law that “the evidence led by the
defence is not less important than the evidence of the prosecution and
therefore the defence evidence must also receive due consideration
wherever it succeeds in disproving the case of the prosecution with
cogent and convincing and credible evidence.” [Atender Yadav
(supra)].

26. While it is true that the evidence of the prosecutrix deserves to
be given weight and in certain circumstances can be acted upon
without any corroboration, in cases of incest, there is always a need
for greater and more acute scrutiny, inasmuch as such allegations
against persons related by blood (own biological father, for example)
smack of bestial instinct and total absence of basic human values and
discretion. It is sad to note that the trial Judge blindly accepted the
prosecution story without going into the aspects which render it highly
improbable, virtually impossible. The erroneous approach of the trial
court has led to serious miscarriage of justice in the present case
unreasonably holding the biological father of raping his own daughter
in the teeth of loaded circumstances showing her to be of wayward
ways and possibly in liaison with a male acquaintance.

27. As noted earlier, the prosecutrix was not even twelve years old
when she is alleged to have been raped by the father. Given the age

Crl. A. No.704/2001 Page 16 of 22
difference between the two and also the fact that he was a full bodied
grown up male, such episode could not have occurred, in 1991,
without leaving the consequences that were bound to come to the
notice of the family in general, and the mother, in particular. After
all, the mother was not a party to the alleged design of the father. She
was away only for some time. A girl of such age, put in such
circumstance, would ordinarily confide in the mother, if not also in her
siblings. The sexual act by such grown up man with a girl of such
tender years was bound to cause some tear to the vaginal canal that
would lead to complications and undoubtedly excruciating pain. The
MLC would not show any sign of the girl being habituated to sexual
intercourse, particularly of forcible nature, over prolonged period of
five years. It is for these reasons that the family would not believe this
story to be correct. Their impressions are significant and of great
import inasmuch as they would have watched over the conduct of the
prosecutrix throughout.

28. The defence evidence clearly shows that there had been issues
coming up on account of conduct of the boy named Bhushan. DW-1
(wife of the appellant) deposed, and her evidence is corroborated by
her other members of the family, that the prosecutrix had revealed on
01.12.1995 that she had been molested by the said Bhushan. This finds
echo in the circumstances surrounding 21.12.1995 when the appellant
reported his daughter to be missing, he raising suspicion about
involvement of the said Bhushan, having reported the matter to police
which had registered the FIR under Section 363 IPC. The father also
shared with the police the handwritten note left behind by the

Crl. A. No.704/2001 Page 17 of 22
prosecutrix, it also pointing out towards involvement of Bhushan as
the reason for turmoil she was then suffering from. The said letter
admittedly came in the hands of the police. The investigating officer,
in the course of his testimony has confirmed this to be a fact but there
was no probe made as to the authenticity of the handwritten note. It
may be that there was no need for sending the said handwritten note
for confirmation of the handwriting. After all, the prosecutrix having
surfaced again on 13.01.1996 herself referred to it, though attempting
to give it a new twist. But, the fact remains that the name of Bhushan
had figured even in the said note.

29. The least that was required to be done was to interrogate
Bhushan and make probe as to possibility of his involvement. The
investigating officer (PW-11) justified inaction, in a very dismissive
way, that he had not found Bhushan “having any connection with the
matter”. What was the basis of his assumption has been left to
imagination.

30. The prosecutrix has referred to a diary in the almirah in the
office of her father (the appellant) where the draft of the handwritten
note was prepared she having been made to copy the same. It was not
such a big draft that it required such preparation. It is inconceivable
that a person in such circumstances would prepare such a draft, that
too in a diary. Be that as it may, there has been no effort to trace the
said diary. In absence of any endeavour to trace it out, it cannot be
assumed that such diary even existed.

Crl. A. No.704/2001 Page 18 of 22

31. As observed earlier, going by the evidence that the prosecutrix
delivered a child on 01.08.1996, the possibility of she having
conceived sometime around the end of October, 1995 may be
assumed. But, for this one will also have to assume that the said child
took birth after full term of pregnancy which, generally speaking, is
considered to be 280 days. There is no evidence gathered or brought
on record to show the relevant facts concerning the said child. In
contrast, the MLC (Ex.PW-9/A) shows that, when questioned by the
medical officer, she had indicated her last menstruation period to have
begun on 28.11.1995. This would rule out any pregnancy prior to
28.11.1995. This would also mean that she would have conceived
sometime after 28.11.1995. In her entire testimony, she has not spoken
about any sexual intercourse indulged in by the appellant during that
particular period. In this context, the evidence of her mother (DW-1)
that on 01.12.1995 the allegations of she having been thrown into
bushes and molested by the boy named Bhushan assume great
significance. The possibility of physical intimacy between Bhushan
and the prosecutrix during that period required deeper probe.
Unfortunately, there has been none.

32. The evidence clearly shows that the prosecutrix had no interest
in formal education. She had been failing in one class or the other due
to poor performance. The evidence also shows that she was of
wayward ways and the family would often receive complaints about
her behavior outside the home. It was against this backdrop that she
was sent for vocational training. This gave her access to the outside
world. She had grown into a girl about sixteen years in age. If the

Crl. A. No.704/2001 Page 19 of 22
facts narrated by her were indeed true, there was no inhibition left for
her to report the matter. What had commenced or had happened in
1991 had continued to be cause for her ordeal. Nothing stopped her
from bringing it out. The delay is indeed inordinate and there are no
justifiable reasons for failure to lodge protest, if not to the authorities,
at least to elders in the family that included an elder sister, brother,
mother and grandparents. The conduct is undoubtedly unnatural and
highly improbable.

33. The delay also renders the version of PW-1 suspect. If she had
learnt all the facts on 21.12.1995 there was no reason for her to
secretly keep the prosecutrix in her custody till 13.01.1996. She was
bound to take her immediately to the authorities to bring the facts to
their knowledge. The story about she was constrained to go to
Calcutta is not supported by any material indicating urgency of such
journey or the need to keep the matter under wraps till her return.
There is something more to it than meets the eye.

34. That the prosecutrix is prone to telling lies comes out vividly in
the context of questions as to the knowledge of her pregnancy. PW-1,
the activist of the NGO is on record to state that there was awareness
even on 21.12.1995 that prosecutrix was pregnant. The prosecutrix in
her statement forming the basis of FIR had also indicated that she
knew that she was pregnant she, in fact, claiming it was of three
months duration which cannot be true given the conclusions reached
earlier. The MLC (Ex.PW-9/A) would be prepared later during the
course of investigation, after registration of the FIR. The medical

Crl. A. No.704/2001 Page 20 of 22
examination only confirmed the pregnancy. It is not that it would
reveal it for the first time. But, this is how the prosecutrix would
project during her deposition in the court, feigning ignorance about
pregnancy till medical examination. This, in fact, shows her version
about the appellant arranging medicines for triggering menstruation in
poor light.

35. The appellant had been crying foul from day one. He had
demanded, even during investigation, DNA test to be carried out. This
required biological samples even of the boy named Bhushan to be
collected. After all, the DNA testing only with the biological samples
of the appellant and the prosecutrix and the foetus carried by her
would be meaningless. He being the biological father of the
prosecutrix, his DNA in any case would have travelled into the foetus
in her womb. The police would not listen. He made formal request to
the trial court. No directions were passed. He made yet another
endeavour at the stage of his statement under Section 313 Cr.P.C. No
one would pay heed. The investigating agency, and the prosecution,
seem to have taken the stand that there was no need because, from
their perspective, it was an open and shut case, there being no reason
why the daughter would accuse the father of such acts. This was
neither a fair probe nor a fair trial. Bhushan was never brought in for
DNA testing. The FIR lodged by the appellant alleging offence under
Section 363 IPC by Bhushan was closed without any probe, only
because a counter version in the form of statement of the prosecution
had come to the fore. The investigation was clearly one-sided. At this

Crl. A. No.704/2001 Page 21 of 22
distance in time, this court can only deplore the inaction on the part of
all concerned.

36. On the foregoing facts, and in the circumstances, this court is
not convinced by the conclusions reached by the trial court. The
approach of the trial Judge having been wholly mis-directed and
erroneous, the judgment of conviction cannot be allowed to stand.

37. In the result, the appeal is allowed. The impugned judgment
dated 10.08.2001, and order on sentence dated 31.08.2001, are hereby
set aside. The appellant would stand acquitted of the charge.

R.K.GAUBA, J.

DECEMBER 19, 2018
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Crl. A. No.704/2001 Page 22 of 22

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