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Sunil @ Raghu vs State on 26 February, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 997/2015
Reserved on: 6th February, 2018
Decided on: 26th February, 2018

SUNIL @ RAGHU ….. Appellant
Through: Mr. Harsh Prabhakar, Advocate
(DHCLSC) with Mr. Anirudh Tanwar and
Mr. Harsh Singhal, Advocates.

versus
STATE ….. Respondent
Through: Ms. Kusum Dhalla, APP.
AND
+ CRL.A. 1053/2015
FAHIM ….. Appellant
Through: Mr. Aditya Vikram, Advocate
(DHCLSC) with Mr. Avinash, Advocate.

versus
STATE ….. Respondent
Through: Ms. Kusum Dhalla, APP.

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

JUDGMENT

Dr. S. Muralidhar, J.:

1. These two appeals are directed against the judgment dated
16th October 2014 passed by the learned Additional Sessions Judge – II,
Crl.A. 997/ 2015 1053/2015 Page 1 of 33
North West, Rohini Courts in Sessions Case No.24/2013 arising out of FIR
No.313/2012 registered at Police Station („PS‟) Mahendra Park, convicting
the Appellants Sunil @ Raghu (A-1) and Fahim @ Sonu (A-2) for the
offences under Sections 363/34 IPC, Sections 377 and 511 IPC read with
Section 34 IPC and Sections 302/34 IPC.

2. The appeals are also directed against the order on sentence dated
1st November 2014 whereby the two Appellants were each sentenced as
under:

(i) For the offence under Section 363 IPC to Rigorous Imprisonment (RI) for
7 years and fine of Rs.2,000/- and in default of payment of fine to undergo
Simple Imprisonment (SI) for 15 days.

(ii) For the offence under Section 377 read with Section 511 IPC to RI for 5
years and fine of Rs.5,000 and in default of payment of fine to undergo SI
for one month.

(iii) For the offence under Section 302 IPC to RI for life and fine of Rs.
1,00,000/- and in default of payment of fine to undergo SI for a period for 6
months. The entire fine amount was to be given to the parents of the
deceased child Salman as compensation under Section 357 Cr PC. All the
sentences were to run concurrently.

Case of the prosecution

3. At about 10:26 am in the morning of 8th November 2012, information was
received in the Police Control Room („PCR‟) from one Shahnawaz Ali that,

Crl.A. 997/ 2015 1053/2015 Page 2 of 33
near the Electricity Office around the Big Apple store in Ram Garh Colony,
a dead body of a young boy aged 15-16 years had been found (Ex.PW-7/A).
This was reduced into writing as DD No.14A (Ex.PW-19/A). Sub Inspector
(„SI‟) Anoop Yadav (PW-19) received the said DD from the duty officer at
PS Mahendra Park and proceeded to the spot along with Constable (Ct.)
Sukhbir Singh (PW-18).

4. This was a vacant plot at A-46, Ram Garh, Jahangir Puri, Delhi. There
was a boundary wall 5-6 ft. high surrounding the plot on all four sides.
When PW-19 reached there, many public persons were already present. The
Station House Officer („SHO‟) of PS Mahendra Park, Inspector Darshan
Singh (PW-21), reached the spot at around 10:45 am. There PWs-19, 18 and
Head Constable Ravinder Nath met him. The crime team officials were then
called to the spot and photographs were taken. The crime team report
(Ex.PW-1/A) noted that the plot was covered on all sides by a boundary wall
and there were bushes under which an approximately 15-year-old boy was
found dead with his face downwards. His trousers were pulled down to his
ankles and blood was oozing from his nose when his body was turned over.
The tongue was under the teeth. On the left palm, the name „Salman‟ was
written in the red ink. A cheque shirt and inner wear and a pair of slippers
were found. They noticed blood and injury marks on his neck and chest.

5. In the meanwhile, one Naim (PW-11) came there and identified the dead
body as that of Salman, son of Salim (PW-15). PW-21 directed PW-19 to
shift the dead body with the clothes and slippers to the BJRM Hospital
mortuary. PW-19 prepared the rukka (Ex.PW-19/B) which was sent for

Crl.A. 997/ 2015 1053/2015 Page 3 of 33
registration of FIR to PS Mahendra Park. PW-21 reached the hospital at
around 2 pm and recorded the statements of Naim (PW-11) and Salim (PW-

15), the father of the deceased. Thereafter PW-21 prepared the rough site
plan at the instance of PW-19 (Ex.PW-19/G). Thereafter, they returned to
PS Mahendra Park and the seized articles were deposited at the malkhana.
According to PW-21, he searched for the accused persons but they could not
be traced. On 8th November 2012 at around 1 pm, the post-mortem of the
deceased was performed by Dr. Bhim Singh (PW-10). His report (Ex. PW-
10/A) confirmed that the death was due to strangulation and the injuries on
the chest. No abnormalities were detected in the rectum and genital organs.

6. On 9th November 2012, the statement of Gullu (PW-16), the younger
brother of the deceased was recorded. Thereafter, at the instance of PW-15,
they reached the house of Sonu @ Fahim (A-2) from where he was
apprehended. He was prima facie observed to be below 18 years. The
Juvenile Welfare Officer, SI Kaptan Singh, was called and A-2 was then
taken into custody. Anisa, the mother of Sonu, also reached there and put
her thumb impression on the arrest memo. The disclosure statement of A-2
(Ex.PW-19/J), was recorded which was again signed by SI Kaptan Singh
and Anisa. At the instance of A-2, the clothes he claimed to have been
wearing at the time of the incident, a cream-coloured shirt and a cream-
coloured pant, were recovered and sealed in a cloth pullanda. A-2 is stated
to have produced one half-piece of brick from the place of incident from the
bushes with which he is supposed to have caused injuries to the deceased.
The brick was sealed in a cloth pullanda. A-2‟s medical examination was
thereafter conducted in the BJRM Hospital and his blood sample was also
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seized. He was produced before the Juvenile Justice Board („JJB‟) and sent
to an observation home.

7. On 11th November 2012, PW-21 along with PW-19 and Head Constable
Sudesh Kumar (PW-20) reached near Kushal Cinema, Jahangir Puri at
around 9 pm and, at the instance of a secret informer, they apprehended
Sunil (A-1). One mobile phone with SIM-card was recovered from his
possession. He was arrested and his personal search conducted. His clothes,
including the shirt, pant, one inner, one underwear, and one pair of shoes
were taken into possession and kept in a cloth pullanda which was sealed.
His medical examination was conducted.

8. On 27th November 2012, the scaled site plan was prepared by SI Manohar
Lal (PW-4). The exhibits of the case were sent to the Forensic Science
Laboratory (FSL), Rohini.

Charge

9. Thereafter, the charge sheet was filed. By an order dated 13th March 2013,
charges were framed against both the accused as under:

“That on 07.11.2012 at about 10:00PM at Shop of Gaurav, I Block
Jahangirpuri, Delhi within the jurisdiction of P.S. Mahendra Park you
both in furtherance of your common intention kidnapped Salman S/o.
Mohd. Saleem aged about 14 years old from the lawful guardianship
of his parents and thereby you both committed an offence punishable
U/s 363/34 IPC and within my cognizance.

Secondly on 07.01.2012 at about 10.00PM at plot No. A-46, Ram
Garh, Jahangir Puri, within the jurisdiction of PS Mahendra Park you
both in furtherance to your common intention attempted to commit
carnal intercourse against the order of nature with Salman and thereby
Crl.A. 997/ 2015 1053/2015 Page 5 of 33
you both committed an offence punishable U/s 377/511/34 IPC and
within my cognizance.

Thirdly on 07.01.2012 at about 10.00PM at plot NO. A-46, Ram
Garh, Jahangir Puri, within the jurisdiction of PS Mahendra Park you
both in furtherance to your common intention committed murder of
Salman by strangulation and by causing brick blows on his chest and
face and thereby you both committed an offence punishable U/s
302/34 IPC and within my cognizance.”

Recording of evidence

10. The prosecution examined 24 witnesses. It is important to note that on
23rd May 2013, the very first day of trial, 22 witnesses were examined,
including the investigation officer („IO‟), Inspector Darshan Singh (PW-21).
The trial Court adopted the practice of getting some of the formal witnesses
to tender affidavit by way of evidence. It so happened that some of these
witnesses had to be recalled like SI Anoop Singh (PW-19) for further
examination. This was done on 17th July 2014 on which date the prosecution
evidence was closed.

11. On 10th September 2013, the statements of the two Appellants under
Section 313 Cr PC were recorded. As far as A-1 is concerned, he denied the
circumstances put to him and stated that he was innocent and had been
falsely implicated. He further stated as under:

“I am innocent. I have been falsely implicated. I have been falsely
implicated. Police had lifted my brother from my house and when I
went to police station to know as to what was the matter, the police
detained me there and falsely implicated me. I did not make any
disclosure statement.”

12. A-1 made an additional statement under Section 313 Cr PC on

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27th August 2014 when the further results of the FSL were made available.

13. The statement of A-2 was also recorded on two dates, i.e.
10th September 2013 and 27th August 2014. He stated: “I am innocent and
have been falsely implicated by the police only to work out the present
case.”

14. Lokesh Mann (CW-1) was examined to confirm that the date of birth of
A-2 was 5th January 1994 as per the school record.

The trial Court proceedings

15. Before proceeding to discuss the judgment of the trial Court, it requires
to be noted that an FSL report was initially submitted on 17th April 2013
(Ex.PW-13/A). Ex.1 (d) was the underwear worn by the deceased. Human
semen was detected on the said exhibit. In the report of the biology division,
the remark alongside the said exhibit was “No Reaction*”. The asterisk
mark was to signify “Group specific antigen degenerated”.

16. Arguments were heard on 19th November 2013, 16th December 2013 and
28th January 2014. When the matter was again heard on 1st March 2014, the
trial Court called upon the Additional PP (APP) to explain why the DNA
was not detected on Ex.1 (d) and how the electronic evidence connects the
accused with the offence.

17. On 28th March 2014, the APP informed the trial Court that the IO who
had initiated the process of DNA examination had not placed on record the
report till date. The trial Court noted that the trial had already concluded on

Crl.A. 997/ 2015 1053/2015 Page 7 of 33
10th July 2013 and that “only when this issue regarding the DNA
examination was raised during the final arguments that the Investigating
Officer suddenly woke up and sent the exhibits for examination which
according to learned defence counsel was to fill-up the lacunas”. The trial
Court observed that “the DNA Fingerprinting Report is a material piece of
evidence and can affect the conclusions either ways i.e. either in favour of
the accused of against them and hence it will not be in the interest of justice
to finalize and conclude the case without the said result”. While granting
adjournment till 3rd May 2014 for final arguments, the trial Court imposed
costs of Rs.5,000 on the prosecution, leaving it open for the costs to be
recovered from the salary of the officer responsible for the lapse.

18. On 3rd May 2014, an application was filed by the APP for deferring
orders and for permission to lead evidence in respect of the DNA fingerprint
report. On 5th May 2014, the costs were permitted to be deposited in cash
and not deducted from the salary of the IO. On 9th May 2014, the IO
submitted an application for re-examination of exhibits by FSL so that
“attempt can be made to segregate/separate the DNA by using „Y Filter‟ and
„Mini Filter Kit‟ by the FSL since previously the same could not be
generated on account of fungal growth”. The counsel for the DLSA did not
express any objection. The trial Court then, in the interest of justice,
requested the IO to have the sample sent to the FSL again for segregation of
DNA with a direction that the report should reach the Court by
2nd June 2014.

19. On 2nd June 2014, a supplementary charge sheet was filed on the ground

Crl.A. 997/ 2015 1053/2015 Page 8 of 33
that the further DNA finger printing showed that the semen stain on exhibit
1(d) was found to be matching with the source of A-2. The witnesses in the
supplementary charge sheet were directed to be summoned and one more
opportunity for additional evidence was sought in respect of the
supplementary charge sheet.

20. On 17th July 2014, Ct. Mahipal Singh (PW-6), SI Anoop Singh (PW-19),
Head Constable (HC) Mukesh Kumar (PW-23) and A.K. Srivastava (PW-

24) were examined and discharged. Additional statements of the accused
under Section 313 Cr PC were recorded on 27th August 2014. Thereafter, on
16th October 2014, the trial Court delivered the judgment holding both
Appellants guilty of the offences under Section 363/34 IPC, Sections
377/511 IPC read with Section 34 IPC and Section 302/34 IPC.

Trial court judgment

21. The conclusions of the trial Court in the 130-page impugned judgment
were as under:

(i) From the evidence of PWs-15, 16 and 17, it stood proved that the
deceased was last seen alive in the company of the two accused between
11:00-11:15 pm on 7th November 2012.

(ii) The medical evidence established the nature of injuries and confirmed
that the death was caused by more than one person and was homicidal.

(iii) The biological and serological report established the presence of
human blood on the pant of A-2 which he was wearing at the time of the
incident and also the presence of human semen on the underwear of the
Crl.A. 997/ 2015 1053/2015 Page 9 of 33
deceased [Ex.1 (d)]. Although the original semen stains on Ex.1 (d) could
not be accounted for in the initial report of the FSL, the DNA Fingerprint
Report conclusively connected A-2 with the offence.

(iv) The electronic evidence established that A-1 was using the mobile
phone 8750023400 and its location was at Sanjay Enclave which is about
100-150 m from the scene of the crime at around 8:01 pm. This, therefore,
was an independent confirmation of the prosecution version.

(v) As regards the motive of the crime, it was held that absence of motive
did not necessarily discredit the prosecution case if the chain of
circumstantial evidence was so complete and it is consistent only with the
guilt of the accused. It was held that the DNA Fingerprint report established
that the motive was to commit carnal intercourse against the order of nature
with the deceased and on account of the stiff resistance offered by him, he
was killed.

(vi) There was ample material on record to prove that both accused had
acted in “common consortium and had shared common intention to commit
carnal intercourse against the order of nature”.

22. By a separate order on sentence dated 1 st November 2014, the trial Court
awarded the sentences to the accused in the manner indicated hereinbefore.

23. This Court has heard the submissions of Mr. Harsh Prabhakar and
Mr. Aditya Vikram, the learned counsel appearing for the Appellants, and
Ms. Kusum Dhalla, the learned APP for the State.

Crl.A. 997/ 2015 1053/2015 Page 10 of 33

A trial rushed through

24. At the outset, the Court is constrained to observe that this is yet another
case where the learned ASJ who conducted the trial and delivered the
impugned judgment has, not for the first time, in her enthusiasm for
speeding up the trial process, committed a serious error by examining a
disproportionately large number of prosecution witnesses (PWs) on a single
day.

25. This Court has had occasion in the past to decry this manner of
conducting a criminal trial by the very same learned ASJ. In fact, this Bench
has in the past few months had occasion to review a number of judgments of
this particular learned ASJ and finds that in similar cases involving very
serious offences punishable with the death sentence or life imprisonment,
this learned ASJ fixes a single date for the entire prosecution evidence,
within a month or two of the framing of charges. This results in defence
counsel, who invariably are amicus curiae, insufficient time to prepare the
defence after consulting the accused, some of whom may be in jail. When on
a single day the learned ASJ records the evidence of an unusually large
number of PWs, and these could include public witnesses, formal witnesses,
expert witnesses and the IO, the defence counsel does not get the requisite
time to prepare and ask meaningful questions in cross-examination.

26. In Sanjay Kumar Valmiki v. State 2014 III AD (Del) 505, this Court
was dealing with an appeal against another judgment of the same learned
ASJ who has authored the impugned judgment in the present appeals. There,

Crl.A. 997/ 2015 1053/2015 Page 11 of 33
17 PWs were examined on the same day i.e. 7th March 2012. That happened
to be the same day that the learned ASJ had appointed the AC. The resultant
judgment was one of conviction for the offence of murder followed by an
order on sentence recommending the award of the death penalty. While
setting aside the said judgment and ordering a re-trial, this Court observed as
under:

“17. … the right of an accused to a fair hearing may be vitiated by an
“overhasty, stage-managed, tailored and partisan trial”. What has also
been repeatedly emphasised is that providing an accused with the
services of a lawyer is not an empty formality. The accused has a right
“to have the guiding hand of the counsel at every step of the
proceeding”. In the present case, the failure by the learned trial Court
to ensure that the accused was duly represented by a counsel even at
the stage of the framing of charges was a serious infraction of his
statutory and constitutional rights of access to justice.

……

19. … It must be remembered that the more serious the crime the
greater the need to ensure that there is no compromise whatsoever on
the fair trial procedures. Otherwise the constitutional guarantee
enshrined in Article 21 of a just, fair and reasonable procedure
established by law, would be rendered illusory. The manner in which
the trial has been conducted in the present case by the learned trial
Judge leaves no room for doubt that there has been a serious
infraction of the fundamental right of the accused to a fair trial. It has,
resulted in a grave miscarriage of justice and for that very reason the
impugned judgment convicting the accused and the consequential
order on sentence awarding him capital punishment cannot be
sustained in law.”

27. In Manoj v. State (decision dated 6th February 2018 in Crl.A.835/2014),
this Court was examining in appeal another judgment of the same learned
ASJ, who has delivered the impugned judgment in the present case. In that
Crl.A. 997/ 2015 1053/2015 Page 12 of 33
case, 22 PWs were examined on the same day i.e. 21st May 2013. Again this
was the same day that the AC was appointed on behalf of the accused.
Setting aside the judgment of conviction, this Court observed as under:

“28. … the constitutional right of the undefended accused to have a
lawyer at State expense at the trial cannot be defeated by providing
legal aid counsel with little or no experience in handling a complex
case involving a charge under Section 302 IPC. Secondly, even if an
experienced counsel is assigned, unless such counsel is given
sufficient time to prepare and handle the case, the constitutional
promise would be an empty formality.

29. In the present case, the proceeding dated 21st May 2013 of the
trial Court showed that none was present for the accused on that day.
In fact that was the day when the prosecution evidence was to
commence. The accused informed the learned trial Judge that his
counsel, Mr. Harish Chander, had stopped appearing on account of an
issue regarding payment. The accused then prayed that a legal aid
counsel be assigned to him. On that very day, 21st May 2013, one
Rajneesh Antil, Advocate who was present in the trial Court was
appointed as AC. Without giving him any time to prepare himself, the
trial Court immediately proceeded with the examination of 21 P.Ws.
These include the two main eye-witnesses in the present case, i.e.,
(P.W. 15 and P.W. 20). Among the list of witnesses was also Dr.
Manoj Dhingra (P.W. 12) who conducted the post-mortem report. It
can well be imagined that the legal aid counsel appointed on that very
date would have had no time whatsoever to familiarise himself with a
case involving a serious charge under Section 302 IPC.

30. The zeal of a trial Judge to ensure speedy justice should not defeat
the constitutional guarantee of a fair trial, particularly in cases
involving serious charges punishable with death or life sentence.”

28. In a trial involving offences punishable with imprisonment for life or
death, where there are independent witnesses apart from the formal
witnesses and the main witnesses to the investigation, the trial Court must

Crl.A. 997/ 2015 1053/2015 Page 13 of 33
ensure that sufficient time is granted to the defence, especially if they are
legal aid counsel for their cross-examination. Although the mandate in the
Cr PC is to conduct the trial on a day to day basis, it would be an extreme
proposition that the entire prosecution evidence is recorded on a single day
in such cases involving grave offences. While it is necessary for the trial
Court to be vigilant against defence tactics that might seek to unreasonably
postpone the trial and use the interregnum to win over witnesses, it would be
an over-reaction to have the entire prosecution evidence of as many as 22
witnesses recorded on a single day. In a case where the defendants face
charges that are punishable with the death sentence and particularly where
they are represented by legal aid counsel, the trial Court should exercise
some caution as well as restraint to ensure that the counsel has sufficient
time to prepare for the cross-examination. It must be realised, that counsel
may have to consult the accused who is represented before putting specific
questions to a witness. This requires some time and privacy and cannot be
expected to happen in the court room in front of the judge.

29. This, of course, will vary from case to case, for e.g. the examination of
several formal witnesses on the same day may not be a problem. Again, in a
case which is fairly straightforward and not involving too many witnesses, it
may not prejudice the accused if say more than 5 PWs, who are not formal
witnesses, are examined on a single day. This will of course depend on the
importance of a particular witness to the case. While no counsel should seek
an unreasonably long time for completing the cross-examination of a
material PW, the Court must ensure that sufficient time is granted, in cases
involving serious offences, to the defence counsel, for that purpose.

Crl.A. 997/ 2015 1053/2015 Page 14 of 33

30. Turning to the present case, both Appellants were represented by the
same legal aid counsel. The record of proceedings for 23 rd May 2013 shows
that 22 PWs were examined and discharged on that date. The learned APP
sought to drop two witnesses, namely Sanjeev (from the school) and SI
Kaptan Singh, since they were “witnesses (of) repetitive facts”. The learned
trial Court acceded to that request and recorded that “prosecution closes the
evidence”. In other words the entire prosecution evidence was led and
closed on the same day.

31. Of these, four PWs i.e. PWs 11 and 12 were witnesses for identification
of the dead body and PWs 15 and 16 were the father and younger brother of
the deceased who were crucial witnesses to the circumstance of last seen.
PW-10 was the doctor who performed the post-mortem and PW-13 was the
scientific officer from the FSL. PWs 19 to 21 were the IOs and the HC who
were witnesses for the investigation. The other PWs were formal witnesses.

32. The Court finds merit in the contention of counsel for the Appellants that
grave prejudice was caused to the accused by the above ‘super-fast’ track
procedure adopted by the learned trial Judge. The Court is unable to
appreciate why the learned trial Judge considered it necessary to rush
through the prosecution evidence in a case of this nature and how she failed
to realise that it would result in a grave miscarriage of justice. Justice
hurried is justice buried.

33. The question that then arises is whether the case should be remanded to
the trial Court for a fresh trial? Although this could have been an option, for
reasons to follow the Court finds the prosecution case to be such that the
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need for re-trial does not arise.

Evidence of ‘last seen’

34. The Court now proceeds to consider each of the circumstances
constituting the complete chain which according to prosecution pointed
unerringly to the guilt of each of the accused.

35. In order to prove that the deceased was ‘last seen’ in the company of the
accused the prosecution relies on the evidence of (i) Mohd. Sharik @ Gullu
(PW-16), the younger brother of the victim,; and (ii) Gaurav Sharma (PW-

17), the owner of the video-game parlour.

36. PW-17 was the owner of the shop in which the video games machines
were installed and where the victim and his friends would often come to
play games. PW-17 stated that at 10:30 pm on 7th November 2012 “the last
I had seen Salman with his brother, Gullu, Sonu and Sunil when leaving my
shop”. He resiled from his previous statement only to the extent that he had
told the police that Sunil had consumed alcohol whereas in the Court he
stated that he told the police that “Sunil normally consumes alcohol at night
and might have consumed the same (ho sakta hai, usne pee rakhi ho)”.
According to Gullu (PW-16), both the accused went away from the shop
with the deceased and A-1 asked Gullu to return home. There was hardly
any cross-examination of either PW-17 or PW-16.

37. The deceased was found dead at a plot in Ramgarh and at that place he
was not last seen with either of the accused. It is in this context that the
prosecution relies on the evidence of PW-15. In his statement first made to
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the police (Ex.PW-15/A) at the hospital, PW-15 stated that he had two
daughters and five sons and that Salman was the eldest and he was aged 14
years. He had studied up to Class IV. PW-15 went on to state that on
7th November 2012, the deceased ate his dinner and left to play video games
at around 9.30 pm. The deceased told PW-15 that he would return within
half an hour. Gullu (PW-16), the younger son of PW-15 had left for the
same video shop of Gaurav (PW-17) earlier than the deceased. At 10:30 pm,
PW-16 returned home. When PW-15 asked PW-16 why the deceased had
not returned, PW-16 informed PW-15 that the deceased had left from the
video shop with A-2 and A-1, his two friends who used to come to play
video games. A-1 had asked PW-16 to return home.

38. PW-15 stated that after waiting for some time, he began searching for
the deceased. At around 11.15 pm, when PW-15 reached the Pethawali Gali
in Sanjay Enclave, he noticed A-2 and A-1 emerge from an empty plot. PW-
15 asked them about the deceased. They told him that the deceased had
already left for his house. Since they were friends of the deceased, and he
had noticed them often with the deceased in the video game shop, PW-15
did not suspect either of them at that stage. He continued searching for the
deceased. On the morning of 8th November 2012, Naim (PW-11) informed
PW-15 that the dead body of the deceased had been found in an empty plot
in Ramgarh. PW-15 came to the plot to find that the deceased had already
been moved to the hospital. PW-15 stated that he was confident that it was
A-1 and A-2 who had murdered his son. The post mortem took place at
around 1 pm by Dr. Bhim Singh (PW-10) and he estimated the time of death
to be around 12 to 14 hours prior thereto. This placed the time of death at
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around 12 midnight.

39. It does seem unusual that with his son not returning till late in the night
on 7th November 2012, PW-15 would not go to the PS to lodge a missing
report. He did not do this even the next morning. What is most unusual is
that he waited for PW-11 to come and tell him after 12 noon that the body of
the victim had been found in the empty plot and only thereafter decided to
go there. In any event PW-15 was not a witness to the circumstance of ‘last
seen’. His testimony that he saw both accused near the plot at 11.15 pm does
not inspire much confidence as this was disclosed by him more than 12
hours thereafter and that too only after the dead body was taken to the
hospital y which time the police had already entered the scene.

40. While PWs 16 and 17 can be said to have proved that the deceased was
in the company of the accused at around 10.30 pm, it must be remembered
that the body was discovered in the empty plot the next morning at around
10 am. The gap between the time when the crime was discovered i.e. 10 am
on 8th November 2012 and when the victim was last seen with the accused
i.e. 10.30 pm on 7th November 2012 is significant. Added to this is the fact
that the body was found in an open plot. Therefore, this circumstance of
‘last seen’ can, at best, be said to raise a suspicion against the two accused
but then suspicion cannot be substituted for concrete proof.

41. The circumstance of „last seen‟ becomes relevant only when the time
gap between the deceased being seen last with the accused and the time
when the crime is discovered is so small as to virtually rule out the
possibility that someone other than the accused perpetrated the crime. It was
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observed by the Supreme Court in State of U.P. v. Satish (2005) 3 SCC 114
as under:

“22. The last seen theory comes into play where the time-gap between
the point of time when the accused and the deceased were last seen
alive and when the deceased is found dead is so small that possibility
of any person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused when there
is a long gap and possibility of other persons coming in between
exists. In the absence of any other positive evidence to conclude that
the accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilty in those cases.”

42. This was reiterated in Ramreddy Rajeshkhanna Reddy v. State of A.P.
(2006) 10 SCC 172 and Jaswant Gir v. State of Punjab (2005) 12 SCC 438,
where the Court cautioned that in the absence of any other links in the chain
of circumstantial evidence, it may be unsafe to convict an accused solely on
the basis of the „last-seen‟ evidence.

CDR of the mobile phone recovered from A-1

43. There was a crucial piece of evidence available to the IO which was for
reasons best known to him, not developed. The CDRs of this phone were
obtained but strangely the last call in the CDR chart (Ex. PW-8/C) is at
around 8 pm on 7th November 2012 and not thereafter. Had the CDRs for
the crucial time period i.e. between 10 pm on 7th November and midnight to
1 am on 8th November 2012 been obtained it would have indicated where
A-1 was at the crucial time. It might have helped either the prosecution or
A-1 himself particularly since he denies the circumstance of last seen.

44. In the examination-in-chief of the IO (PW-21) he identified this seized
Crl.A. 997/ 2015 1053/2015 Page 19 of 33
mobile phone as “one dual SIM mobile phone make Wing bearing IMEI No.
357430045604186 and WEI No. 357430045704184 with SIM of Idea
bearing SIM of mobile number 8750023400” which was “recovered from
the possession of accused Sunil.” In his cross-examination, he admitted that
he had called “for the record of the SIM No. 8750023400 from the service
provider along with the details regarding the ownership.” From the evidence
of Pawan Singh (PW-8) the Nodal Office of Idea Cellular Ltd. it was proved
that the said number was issued in the name of Smt. Pancham wife of Ram
Parvesh. He proved the CDR chart (Ex. PW-8/C) in which the last call for
this number is 20.01 hrs on 7th November 2012. The failure of the IO to
obtain the details of this phone for the later period after this call is strange
considering that it would have provided vital clues on the location of A-1.
For that matter, the IO does not appear to have collected the CDRs if any of
PW 15 and A-2 which may also have helped in this context. The benefit of
doubt is this regard, due to this lapse, must enure to the accused.

Medical evidence

45. The post-mortem report (Ex. PW-10/A) confirms that death was due to
strangulation. The injuries noted were:

“1. Multiple contusions with crecentric abrasions over front and both sides
of neck varies from 0.8 cm x 0.6 cm to 2.5 cm x 1 cm.

2. Irregular multiple contusions on the upper part of chest in an area of 16
cm x 12 cm.

On internal examination, the head and neck brain was pale. Effusion of
blood was present in skin subcutaneous tissues of neck present below injury
number 1 with fracture of hyoid bone of left side and contusions over
thyroid and trachea was present, trachea was full of blood.

Crl.A. 997/ 2015 1053/2015 Page 20 of 33

Chest shows effusion of blood in chest wall with fracture of sternum at the
level of second rib with fracture ribs second and third on left side of chest,
plural cavity was full of blood about one litre, left lung was punctured
lacerated, would below fracture ribs.”

46. Significantly, as regards the rectum and genital organs the remark was
that no abnormality was detected (NAD). The medical evidence, therefore
did not support the conclusion drawn by the trial court that forced carnal
intercourse was either performed or even attempted on the deceased.
Therefore, while the medical evidence was proof of the circumstance of
homicidal death by strangulation, it was a negative proof of the offence
under Section 377 IPC.

Arrests and recovery

47. The evidence of PWs 19, 20 and 21, who are the police officials
involved in the investigation of this case, reveals that although the statement
of PW-15 the father of the victim, raising doubts on the involvement of A-1
and A-2 was supposedly recorded on 8th November 2012 at around 1 pm,
no attempt was made soon thereafter to trace either A-1 or A-2. It was only
at 8.30 am on the next day i.e. 9th November 2012 that they went to the
house of A-2 (Sonu) in the same I Block of Jahangirpuri along with PWs 15
and 16. They found him there and arrested him. This also raises a suspicion
that if A-2 was involved in such a heinous crime he would not attempt to run
away but would be available in his house, in the close neighbourhood.
Moreover, although PW-15 was supposed to have accompanied the police
team, his signature on the apprehension memo of A-2 (Ex. PW-19/A) or his

Crl.A. 997/ 2015 1053/2015 Page 21 of 33
personal search memo (Ex. PW-19/I) is absent.

48. A-2 is supposed to have made a disclosure and led the police back to the
spot and got recovered a half brick purportedly used by him to inflict the
chest injuries on the victim. This half brick, a common object, was lying in
the vicinity of the spot where the dead body was. This kind of a recovery of
a common object from an open place long after the police have already
visited the same spot does not inspire confidence. In Mani v. State of Tamil
Nadu (2009) 17 SCC 273, it was observed as under:

“25. … It need not be stated that where the discovery of the relevant
articles have been made from the open ground though under the bush,
that too after more than ten days of the incident, such discovery would
be without any credence. It does not stand to any reasons that the
Investigating Officer concerned did not even bother to look hither and
thither when the dead body was found. We are, therefore, not
prepared to accept such kind of farcical discovery which has been
relied upon by the courts below without even taking into
consideration the vital facts which we have shown above.”

49. It is therefore not of much significance that on 28th December 2012, PW-
10 opined that the injury no.2 mentioned in the previous report could have
been possibly inflicted with the said piece of brick. Neither the arrest of A-2
nor the recovery of the half brick at the instance of A-2 inspires confidence.

50. Even the arrest of A-1 at 9.15 pm on 11th November 2012 from Kushal
cinema in Block G of Jahangirpuri, i.e. the same area, purportedly on the
receipt of secret information does not inspire confidence. His arrest memo
and personal search memo is not attested by any public witness despite his
arrest being from a public place. That he was available four days after the
incident in the same area increases the suspicion about the manner of his
Crl.A. 997/ 2015 1053/2015 Page 22 of 33
arrest.

Errors by the trial Court

51. At this stage the Court would like to dwell on a serious lapse in the
impugned judgment of the trial Court in recounting the circumstances,
which according to the trial Court were established by the prosecution. In
para 147 of the impugned judgment (internal page 126) the learned ASJ
notes one of the circumstances proved as follows:

“That the accused Sonu was interrogated by the Investigating Officer
during which the accused disclosed his involvement in killing of the
deceased Salman.”

52. Plainly the learned trial Judge overlooked Section 25 of the Indian
Evidence Act and failed to realise that such a disclosure by A-2 to the IO
was inadmissible in evidence. It should not have even entered the frame of
consideration by the trial Judge of the evidence in a criminal case. This is a
basic and fundamental error.

Photographs

53. The trial Court also adopted a strange method of encircling portions of
photographs which were made part of the judgment. The judge herself
encircled by ink portions of the photographs to highlight supposedly
incriminating aspects. The photographs made part of the judgment of the
trial Court are Ex.PW-2/A3, A6, A7 A11. In some of these pictures, the
victim is shown face-up. However, the picture showing the position of the
body when it was first found is Ex.PW-2/A17 where the deceased is shown
to be laying face down. It is plainly seen that whereas one photograph shows
Crl.A. 997/ 2015 1053/2015 Page 23 of 33
the body in the original position, thereafter the body has been turned over
and placed at a different spot in the same location so as to take clearer
photographs. Whether this should have been done is debatable but this Court
nevertheless cannot concur with the trial Court‟s finding that the
photographs, by themselves, are incriminating qua the accused.

The DNA Fingerprint report

54. A major circumstance that was held to be proved by the trial Court, was
the confirmation by the second DNA Finger print Report (Ex. PW-24/A)
that the DNA profile of the semen stain found on the underwear of the
deceased (Ex. 1d) was found matching with the DNA Profile from the
source of Exhibit 3 (blood gauze of A-2).

55. Before proceeding to discuss this report, and the manner in which it
came to be produced, it is necessary to note that the report (Ex.PW-1/A) of
the crime team which went to the spot at 11.15 am on 8th November 2012
only mentions that they found on the body of the victim the pant pulled
down below the knees. There is no mention of any underwear. Even Naim
(PW-11) who identified the body at the plot itself, does not make any
mention about the underwear.

56. However, Ct. Sukhbir (PW-18) states in examination-in-chief that “there
was no cloth on his body except his underwear and pant near his knee on the
legs”. In his cross-examination he states, “Nothing was found in the pant of
the deceased and also nothing was found in the shirt of deceased”. An
identical statement was made by SI Anoop Singh (PW-19). This witness

Crl.A. 997/ 2015 1053/2015 Page 24 of 33
also identified the clothes of the deceased which were identified collectively
as Ex.P-5. The underwear finds mention in the seizure memo (Ex.PW-18/A)
dated 8th November 2012. The said memo mentions a sealed packet
containing clothes (pant, shirt, inner banyaan, underwear, Hawaii chappal).
The Court finds it pertinent to note that the number „8‟ in the date line of the
memo appears to have been overwritten. The post-mortem report mentions
an underwear being found on the body of the deceased, apart from the pant,
belt etc.

57. The said underwear was Ex. 1 d. When the said exhibit was sent to the
FSL, on the first occasion, a report was given by Biology Division on
17th April 2013 (Ex. PW-13/B) that there was no reaction with semen since
the group specific antigen had degenerated.

58. After the hearing in the trial Court on 1 st March 2014, the FSL sent to
the trial Court a DNA report dated 16 th April 2014. The report noted that Ex.
1 (d) was one cut/torn underwear along with fungal growth. The result of the
DNA analysis in the said report dated 16th April, 2014 was as under:

“Exhibits ‘1d’ (Underwear of deceased), ‘2’ (Blood in gauze of
deceased), ‘5’ (Blood in gauze of accused) and ‘7’ (Blood in gauze of
accused) were subjected to DNA isolation. DNA was isolated from
the source of exhibits ‘1d’ (Underwear of deceased), ‘2’ (Blood in
gauze of deceased), ‘5’ (Blood in gauze of accused) and ‘7’ (Blood in
gauze of accused). Amp F1 STR Identifier plus PCR amplification kit
were used for each of the samples and data was analysed by Gene-
Mapper IDx Software. Profile could not be generated from the
source of exhibits ‘1d’ (Underwear of deceased) as stains were
degredated due to fungal growth. However male DNA profile were
generated from the source of exhibits ‘2’ (Blood in gauze of deceased),
‘5’ (Blood in gauze of accused) and ‘7’ (Blood in gauze of accused).”

Crl.A. 997/ 2015 1053/2015 Page 25 of 33

59. In other words, the Gene Mapper IDx Software was unable to generate a
DNA from the source of Ex. 1 d (underwear of the deceased) as stains were
degraded due to fungal growth.

60. Despite the above unambiguous report, the learned trial Court
entertained an application on 3rd May 2014 by the IO seeking permission to
lead further evidence in respect of the aforementioned DNA Fingerprinting
report. In an order dated 9th May 2014, the learned trial Judge referred to the
averment in the application that “attempt can be made to segregate/separate
DNA by using „Y Filter‟ and „Mini Filter kit‟ by FSL since previously the
same could not be generated on account of fungal growth.” The trial Court
directed the same exhibit again be sent to the FSL for segregation of DNA
“in the interest of justice”. This time, within less than a month thereafter on
30th May 2014, the same DNA Fingerprinting unit of the FSL stated that it
had managed to isolate the DNA profile from the same Ex. 1 d. The
conclusion in the said report (Ex. PW-24/A) was as under:

“The DNA profiling (Minifiler YSTR analysis) performed on the
exhibits ‘1d’, ‘2’, ‘3’ ‘4’ are sufficient to conclude that the single
DNA Profile from the source of exhibit ‘1 d’ (Underwear of deceased
Salman) is matching with DNA Profile from the source of exhibit ‘3’
(blood gauze of accused JCL Fahim @ Murgi). However the single
DNA Profile from the source of exhibit ‘ld’ (Underwear of deceased
Salman) is not matching with DNA Profile from the source of exhibit
‘4’ (blood gauze of accused Sunil@ Raghu)”

61. The person who signed this report was A.K. Shrivastava, Deputy
Director (Bio/DNA) (PW-24) whereas the person who has signed the earlier
report was L. Babyto Devi. Both belong to the same FSL at Rohini. When
the matter came back to the Court, A.K. Shrivastava (PW-24), the author of
Crl.A. 997/ 2015 1053/2015 Page 26 of 33
the second report, was examined. The cross-examination was cursory and
the only suggestion put to him pertained to whether the examination had
been done in a fair manner.

62. This evidence was perhaps the most critical part of the entire case as is
realised by the learned ASJ herself. The underwear of the deceased, even by
the time it was first examined by the FSL, had fungal growth and, as noted
in the first report, semen stains had degraded and therefore no DNA profile
could be generated. How, within less than a month thereafter, the same FSL
was able to generate a DNA profile that could match the DNA profile of A-2
is unexplained. It must be remembered that the packet containing the
underwear was still in the control of the police and was collected from and
delivered back to the FSL by them. The manner in which the police has gone
about filing an application, after receipt of a report of the FSL that went in
favour of the accused, and took the same exhibit back to the same FSL and,
within a month, got a report to the contrary from a different scientific
officer, does not sit comfortably with this Court. Why the Minifiler and
YSTR analysis using „Y Filter‟ and „Mini Filter‟ kit was not done earlier is
also not explained. In technical matters of this nature, where the stains on
the exhibit have already degenerated and there is no fresh sample available,
it would not be safe to rely on a subsequent report which states something
contrary to what is stated in the first.

Over reliance on forensic evidence

63. This subsequent DNA Fingerprinting report has been held by the trial
Court to constitute clinching evidence for several things, viz. (i) that it

Crl.A. 997/ 2015 1053/2015 Page 27 of 33
conclusively connected A-2 to the crime, (ii) that it proves that the motive
was to commit carnal intercourse against the order of nature with the victim,

(iii) that it proves that the victim resisted the attempt and, therefore, was
killed by blows on the chest and then finally strangulation.

64. The DNA analysis could, at best, be a corroborative piece of evidence
and could not be considered to be a substantive piece of evidence. The
unreliability of this evidence is apparent in the present case. While the FSL
report dated 16th April 2014 stated that the DNA profile could not even be
generated from the degraded semen stain, the second report dated
30th May 2014 stated the opposite.

65. From the orders in the trial proceedings, it is plain that the trial judge
was very concerned that the DNA evidence was not presented before the
Court even till 20th March 2014 although the prosecution evidence had been
closed on the first day itself i.e. 23rd May 2013. This anxiety on the part of
the trial Judge led her into placing undue reliance on this evidence to hold
that it conclusively connected the accused with the crime.

Law relating to circumstantial evidence

66. Before discussing the evidence on record in light of the above
submissions, it is necessary to recapitulate the settled legal position with
regard to circumstantial evidence.

67. In Ram Avtar v. State 1985 Supp SCC 410, the Supreme Court
explained that:

“…circumstantial evidence must be complete and conclusive
Crl.A. 997/ 2015 1053/2015 Page 28 of 33
before an accused can be convicted thereon. This, however,
does not mean that there is any particular or special method of
proof of circumstantial evidence. We must, however, guard
against the danger of not considering circumstantial evidence in
its proper perspective, e.g., where there is a chain of
circumstances linked up with one another, it is not possible for
the court to truncate and break the chain of circumstances. In
other words where a series of circumstances are dependent on
one another they should be read as one integrated whole and not
considered separately, otherwise the very concept of proof of
circumstantial evidence would be defeated.”

68. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679, the Supreme
Court held:

“… the law is fairly well settled that in a case of circumstantial
evidence, the cumulative effect of all the circumstances proved,
must be such as to negative the innocence of the accused and to
bring home the charge beyond reasonable doubt. It has been
held by a series of decisions of this Court that the circumstances
proved must lead to no other inference except that of guilt of
accused.”

69. In Trimukh Maroti Kalan v. State of Maharashtra (2006) 10 SCC 681,
the Supreme Court held:

“The normal principle in a case based on circumstantial
evidence is that the circumstances from which an inference of
guilt is sought to be drawn must be cogently and firmly
established; that those circumstances should be of a definite
tendency unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and they should be incapable of explanation on any
hypothesis other than that of the guilt of the accused and
inconsistent with his innocence.”

Crl.A. 997/ 2015 1053/2015 Page 29 of 33

70. 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
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.”

71. In Brajesh Mavi v. The State (2012) 7 SCC 45, the Supreme Court
explained:

“From the several decisions of this court available on the issue
the said principles can be summed up by stating that not only
the prosecution must prove and establish the incriminating
circumstance(s) against the accused beyond all reasonable
doubt but the said circumstance(s) must give rise to only one
conclusion to the exclusion of all others, namely, that it is
accused and nobody else who had committed the crime.”

Circumstances proved and not proved

72. The circumstances that can be said to have been proved by the
prosecution are the following:

Crl.A. 997/ 2015 1053/2015 Page 30 of 33

(i) That the deceased was last seen in the company of the two accused at
around 10.30 pm on 7th November 2012 at the video shop of PW-17.

(ii) That the deceased was found dead in an open plot in Ramgarh at around
10 am the following day i.e. 8th November 2012

(iii) That the deceased had two external injuries one of which around the
neck was a strangulation injury that was sufficient in the ordinary course of
nature to cause his death.

73. The circumstances not satisfactorily proved by the prosecution are:

(i) That A-1 and A-2 were seen crossing the boundary wall of the open plot
at Ramgarh by PW-15 at around 11.15 pm on 7th November 2012.

(ii) That A-2 after his arrest on 8th November 2012 at around 9.30 am made
a disclosure and got recovered the half brick that was used to cause the chest
injuries on the deceased.

(iii) That A-1 was arrested on 11th November 2012 near Kushal Cinema at
9.15 pm and he made a disclosure statement leading inter alia to the
recovery of his mobile phone.

(iv) That the DNA Fingerprinting report obtained for the second time from
the FSL proved that the semen stain on the underwear of the deceased
matched the DNA profile from the blood gauze of A-2.

74. Turning to circumstances not proved, as already noticed the medical
Crl.A. 997/ 2015 1053/2015 Page 31 of 33
evidence showed no sign of any attempt at unnatural sex with the deceased
much less an attempt at such act. Further certain vital pieces of evidence like
the CDRs of the mobile phones used by PW-15 and the accused was not
developed and this constituted a serious lapse in the investigation. There was
also no evidence whatsoever, that the accused forcibly abducted the victim
so as to attract the offence of kidnapping under Section 363 IPC.

75. Finally, the prosecution has also failed to prove the motive for the crime.
The inference drawn by the trial Court that the victim put up a stiff
resistance to his being sodomised is not supported one bit by the medical
evidence or for that matter, any other evidence. In a case of this nature,
when all other circumstances have not been satisfactorily proved, the failure
to prove motive adds to the doubt created about the guilt of the accused.

76. The circumstances proved do not form a complete chain. Those that
have not been satisfactorily proved or not proved make it difficult for the
Court to conclude that the circumstances proved point unerringly to the guilt
only of the two accused and no one else. It is trite that suspicion howsoever
strong cannot substitute proof.

77. As already noticed, there has been a serious miscarriage of justice as a
result of the manner of conducting the trial by the earned trial Judge.

Conclusion

78. For the aforementioned reasons, the Court grants both accused the
benefit of doubt and acquits them of the offences under Section 363/34 IPC,
Sections 377/511 read with Section 34 IPC and Sections 302/34 IPC
Crl.A. 997/ 2015 1053/2015 Page 32 of 33

79. The impugned judgment of the trial Court dated 16th October 2014 and
the subsequent order on sentence dated 1st November 2014 are set aside. The
accused are directed to be released forthwith unless wanted in some other
case.

80. Both Appellants will fulfil the requirements of Section 437-A Cr PC to
the satisfaction of the trial Court at the earliest.

81. The appeals are allowed in the above terms. The trial Court record be
returned forthwith together with a certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

FEBRUARY 26, 2018
anb/Rm

Crl.A. 997/ 2015 1053/2015 Page 33 of 33

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