PUNJAB AND HARYANA HIGH COURT
Criminal Appeal No 886-DB of 2006. D/d. 17.2.2012.
Dharmender Versus State of Haryana
For the Appellant Criminal Appeal No. 886-DB of 2006 :- Mr. Baldev Singh, Senior Advocate with Mr. Sudhir Sharma, Advocates.
For the Respondent-State :- Mr. S.S. Randhawa, Additional Advocate General, Haryana.
For the Revisionist-petitioner :- Mr Rajesh Arora, Advocate with Mr. Ram Chander, Advocate and Ms. Simran Sadana, Advocates.
A. Indian Penal Code, Sections
[Paras 45, 33 and 35]
B. Indian Penal Code, Sections
[Paras 33 and 45]
C. Indian Penal Code, Sections
D. Indian Penal Code, Sections
E. Indian Penal Code, Sections
F. Motive to commit an offence - Motive is a double-edged weapon as it may be the cause of a crime as well as the reason for false implication. [Para 37]
Rajiv Bhalla, J. - By way of this judgment, we shall dispose of Criminal appeal no 886-DB of 2006 and Cry final Revision No 244 of 2007 together. as they arise from the same Impugned judgment dated 1511.2006 and order dated 16.11 2006 gassed by the Additional Sessions Judge, Faridabad.
The appellant has been convicted under sections 302, 366A, 376 and 328 of Indian Penal Code and sentenced as follows :
|U/s 366A IPC||Rigorous imprisonment for seven years and to pay a fine of Rs. 3000/- In default of payment of fine, to further undergo rigorous imprisonment for six months.|
|3761PC||Rigorous imprisonment for seven years and to pay a fine of Rs. 3000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months.|
|328 IPC||Rigorous imprisonment for seven years and to pay a fine of Rs. 3000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months.|
|302 IPC||Rigorous imprisonment for life and to pay a fine of Rs. 3000/-. In default of payment of fine, to further undergo rigorous imprisonment for one year.|
All sentences have been ordered to run concurrently.
2. The revision has been filed by the complainant, father of the deceased, for award of death sentence.
3. The case of the prosecution, in brief, is that on 18.3.2003 Snit Om Wati wife of Med Singh, complainant, and her two daughters were sleeping on the roof of their house. Om Wati and Kavita were sleeping on one cot, whereas the deceased was sleeping on a separate cot, At about 10.00 P.M., Om Wati woke up and found that the deceased was missing. She raised an alarm, that attracted her neighbours. The police post, Malerna, was informed, by a neighbour, Vinod The police party arrived from Police Post, Malerna, but could not find the girl. Ti he missing girl was found unconscious on the roof of an adjoining house belonging k Moharpai She was taken to Escorts Hospital Faridabad. Med Singh, husband of the complainant, who was away to village Milakpur, was informed Med Singh, father of the deceased, made a statement, Ex. PA, at about 10.00 P.M., on 20 2003, which was endorsed vide Ex PA/1 by Tara Chand, ASI and led to the registration of the formal FIR No 197 dated 20.3.2003, Ex PA/2, at Police Station City Ballabgarh at 10 10 P M., on 20.3.2003. The report was initially registered under section 328 of the Indian Penal Code, but after medical examination and the passing away of the deceased, sections 302 and 376 of the Indian Penal Code were added. In his statement, Ex.PA, Med Singh stated that Dharmender, attempted to kill his daughter by administering poison as earlier also the appellant had teased his daughter The appellant was arrested on 22.3.2003 and suffered a disclosure statement, Ex. PD, on 26.3.2003 admitting that he had raped the deceased and, on account of fear administered poison to her After she became unconscious, he threw her on the roof of Mona pal. The appellant stated that he had concealed an aluminium vial containing poison in a godrej cupboard in his room and could get it recovered. The appellant got recovered an aluminum vial with the words ROGOR' in 'English' and Zahar in 'Hindi' from a cupboard, Inside his room vide recovery memo Ex PD/2 The appellant pointed out Bajrang Beej Bhandar, as the shop from where he had purchased the insecticide, vide demarcation memo Ex DA/1.
4. Dr. Sudhir Khurana, Medical Officer, B.K. Hospital, Faridabad, a member of the Board of doctors, who conducted the post mop tern found the following injuries on the person of the deceased.
- "1. Reddish purple contusion were present all around the neck extending upward upto chin anteriorly and lobules of both pinna laterally and occipital region of scalp posteriorly and interiorly upto upper 3 cm of the chest near base of neck, on dissection substaneous collection of blood was present. Lobuse of both, ears were swollen and contuse.
- 2. Contusion and diffused swelling on the right side of forehead. It was purplish in colour
- 3. On opening both eyes. balls were bulging and sub-conjuctival haemorrhage were present.
- 4. Contusions were present on both axilas and lateral aspect of chest on both sides. It was reddish in colour and there was subcutaneous collection of blood.
- 5. Small abrasion with clotted blood on the dorsum of both elbows, lambar region and dorsum of left foot.
- 6. Abrasion 6 cm x 1/2 cm on the left groin clotted blood was present.
- 7. Small circular canula on the right side of the neck and right inguinal regions"
6. Upon consideration of the contents of the report, the Additional Sessions Judge, Faridabad, framed charges under sections 302. 328 and 376 of the Indian. Penal Code, but as the appellant pleaded not guilty, directed the prosecution to lead evidence.
- The prosecution has examined the following witnesses :
8. PW 2 Om Wati, mother of the deceased girl, has deposed that they were sleeping on the roof of their house. She woke up at 10.00 PM., and found that her daughter was missing She raised an alarm that attracted her neighbours, who began searching for the deceased She has also deposed that the police arrived and began searching for her daughter Her daughter was ultimately found on the root of Moharpal's house, which is by the side of the house of Teeka. The deceased was taken to Hospital. She admitted while making her statement that she suspected Dharmender. During her cross-examination, she admitted that the police were informed by Vinod who resides near her house and has a telephone. The police came after halt an hour, but she could not state for how long the police remained.
9. PW 3 is Ved Parkash son of Kanhiya Lal, who resides in the neignbourhood of the appellant and the complainant. He has deposed that upon hearing a noise. he came out of his house and was told that Med Singh's daughter has been abducted He immediately went to the roof and began searching for the girl. After some time, he went to the roof of Moharpal, where he saw the appellant Dharmender coming down by way of the staircase of his house and switching off the light. He began searching for the girl and eventually found her lying unconscious on the roof of Moharpal. During his cross-examination, he stated that he was alone when he searched the roof and before he searched the roof, Lal Singh and Budh Singh had already searched the roar He has admitted that the police arrived a short while after the gin as found. He has also admitted that he did not inform the police or Med Singh or any of his relations but straight away informed the police on 21.3.2003 that he had seen Dharmender coming down from the roof a short while before the girl was found and made a statement before the police for the first time in the evening of 21.3.2003. He has also admitted that after the daughter of Med Singh passed away, there was a massive demonstration and the G.T. Road near Ballabgarh was blocked by the villagers as they insisted that the culprit be apprehended.
10. PW4 Heti Ram son of Jai Ram, has deposed that on the night of 18.3.2003 he saw Dharmender throwing the girl on the root of Moharpal and thereafter he went to the roof and found the girl. He has also deposed that Ved Parkash PW3 was with him and saw everything. During his cross-examination, he has stated that he searched for the girl along with Ved Parkash. He has admitted that though he saw Dharmender throwing the girl, he did not chase Dharmender because the condition of the victim was very serious. He ha stated that the police arrived on 18.3.2003 and he told the police that he had seen Dharmender throwing the girl on to the roof of Moharpal but he was never called to the police station He has admitted that his statement was not recorded on 18.3.2003 or any time thereafter, except during the process of investigation.
11. PW 5 Sukhbir Singh son of Ram Singh is a witness of the recovery of blood stained pieces of cement and saliva, Ex. PC and a plastic container, Ex.P1, taken into possession on 21.3.2003 The disciosure statement made by the appellant is Ex. PD; the bottle of poison (pesticides) is, Ex P2 , and its recovery memo is Ex. PD/2.
12. PW 6 Dr. Sudhir Khanna, Medical Officer, B.K.Hospital, Faridabad, was a member of the Board of Doctors, who conducted the postmortem and found injuries referred to in the preceding paragraphs, on the person of the deceased. His final opinion after perusing the report received from the Chemical Examination is that death was on account of aluminium phosphide poisoning. He has also deposed about the difference of symptoms between aluminium phosphide and organo phosphorous poisoning.
13. PW 7 Sarwan Kumar, Draftsman, prepared the rough site plan Ex. PF, demarcating the house of Med Singh and other houses.
- PW 8 Ashok Kumar son on of Teeka Ram, has deposed that the appellant usually purchases pesticides from his shop and may have purchased the pesticides two days prior to Holi.
15. PW 10 Dr. S.K. Mittal, Senior Medical Officer, General Hospital, Ballabgarh, medico regally examined Dharmender and found that he was fit to perform sexual intercourse.
16. PW 11 Bhim Singh Head Constable, Police Post, Adarsh Nagar, Police Station, City Ballabgarh, tendered his affidavit Ex. PH into evidence.
17. PW 12 Shri Om, constable, tendered into evidence his affidavit Ex. PI.
18. PW 13 Dr Rakesh Singh Senior Medical Officer Escorts Hospital, Faridabad, medico-legally examined the deceased when she was brought to the hospital and deposed about her medical condition and corroborated the other medical evidence that the deceased died due to poisoning. He proved his medico-legal report Ex.P3.
19. PW 14 Dr Sandeep Bhattacharya, Senior Medical Officer, is Hospital Faridabad, proved his medical opinions Exs. PK/1, PK/2. PK/3 and PK/4 that the deceased was unfit to make a statement.
20. PW 15 Tara Chand,' Sub Inspector, P.P. Adarsh Nagar, Police Station City Ballabgarh, received the application. Ex.PA, from Med Singh, whereupon he inspected the spot on 21.3 2003, prepared a rough site plan, Ex.PL, recovered froth and saliva from the spot vide recovery memo dated 21.3.2003 Ex.PC; arrested the appellant on 22.3.2003; and on the night intervening 22" and 23" March, 2011, added the offence under section 302 of the Indian Penal Code He further deposed with respect to receipt of parcels of viscera, swabs, post mortem report, inquest papers etc., which were taken into possession by recovery memo, Ex.PN. On 27.3.2003, he collected the sealed parcels of vomit of the deceased, from Escorts Hospital, vide recovery memo Ex. PO During his cross-examination he admitted that information was received in the Police Post Adarsh Nagar, on 18.3.2003, and police officials went to the house of Med Singh and seal, hed for the girl He admitted that he was present at the village on the night of 18 3.2003 and forwarded the victim to Escorts Hospital, The case was registered on 20 3 2003 and statements of witnesses were recorded on 21.3.2003 He had also admitted that he did not go to the spot on 19th and 20th March, 2003.
21. PW 16 Randhir Singh, Sub Inspector, CIA, Faridabad, took over the investigation on 23 3.2003. He took into possession clothes worn by the deceased, got the appellant medico-legally examined, completed the investigation and filed a challan.
22. Upon conclusion of prosecution evidence, the incriminating circumstances appearing against the appellant were put to him under section 313 of the Code of Criminal Procedure. The appellant denied section evidence, pleaded innocence, but did not lead any evidence in defence apart from tendering revenue documents in order to prove that the prosecution witnesses are closely related to the cot la in ant Med Singh.
23. After considering the evidence on record. arguments addressed by the Public Prosecutor and the defence counsel, the trial court held that the prosecution has proved its case beyond doubt arid, therefore, convicted and sentenced the appellant as referred to in the opening part of the judgment.
24. Counsel for the appellant submits that the appellant has been convicted on suspicion and pressure from his co-villagers. The evidence on record, apart from being unreliable and unbelievable, is contradictory, based upon uncorroborated statements of close relatives and neighbours, recorded three days after the incident. The story, as set up by the prosecution, is that the appellant raped the deceased, administered poison, and then threw her on the roof of Moharpal's house. Though, admittedly, the deceased was discovered on the night of 18.3.2003 in the presence of a police party, but surprisingly, a report was loged only on 20.3.2003. The prosecution has failed to adduce evidence to satisfactorily explain this delay of almost two days in lodging the report and has concealed the proceedings recorded by the police on 18.3.2003 The fact that prosecution witnesses have admitted that police of Police Post. Malerna, was informed and police officials arrived at the spot within half an hour of the deceased being found missing, searched for her and the girl was discovered in their presence, clearly establishes that a report was lodged at the Police Post on 18.3.2003 The prosecution has withheld the message received at Police Post, Malerna and the proceedings recorded. PW 15 Tara Chand, Sub Inspector who apart from admitting that a message was received at Police Post Adarsh Nagar on 18.3.2003, has also admitted that the police went to the village, searched for the girl and after she was discovered, sent her to Escorts Hospital, but strangely enough has not produced this record. The statement of the complainant was recorded only on the evening of 20.3.2003 and of the witnesses on 21.3.2003. The Investigating Officer visited the site and recovered sample of vomit only on 21.3.2003. The prosecution has not explained this delay and the concealment of the police proceedings recorded on 18.3.2003. PW 3 Ved Parkash and PW 4 Heti Ram, who allegedly searched for the girl on the roof of house of Moharpal and saw the appellant coming down the stairs after throwing the deceased on trio roof of Moharpal respectively are not named in the FIR, though the FIR was recorded on the statement of Med Singh two days after the occurrence Their statements were not recorded at the spot when police officials were present 1 heir statements are false and were recorded under pressure from the villagers. The depositions are contradictory and inconsistent on material particulars. PW3 Ved Parkash has deposed that he saw the appellant coming down the staircase and switching off the light and that he (Ved Parkash) was all alone whereas PW 4 Heti Ram has deposed that Ved Parkash, PW 3, was with him when he saw the appellant throwing the body of the girl on to the roof of house of Moharpal. These witnesses did not make any statement to the police and kept silent for two days, though according to them, they were present when the police arrived.
25. It is further agreed that it is the positive case of the prosecution that the appellant administered poison to the deceased and therefore, got recovered a vial, Ex.P2, used while administering poison The poison recovered from the appellant is organo phosphorous based The report of the Chemical Examiner and the report received from the Forensic Science Laboratory reveals that the deceased died of consuming an aluminum phosphide based poison. The mere fact that there is evidence of sexual intercourse, does raise an Inference of rape. The medical examination of the deceased clearly establishes that she was used to, sexual intercourse. It is prayed that as there is no cogent evidence against the appellant, the appeal should be allowed.
26. Counsel for the State of Haryana, on the other hand, submits that the medical evidence, the report of Forensic Science Laboratory, statements of witnesses. who saw the appellant throwing the body and going down the stairs, leave no manner of doubt as to the appellant's guilt The trial court, has, therefore, rightly held against the appellant.
- It is further submitted that as the appellant was aware of the poison he had administered to the deceased, he misled the police by giving them a wrong vial of insecticides thereby causing unnecessary confusion It is further argued that delay has been satisfactorily explained and the contradictions are natural and irrelevant.
28. We have heard counsel for the parties, perused the impugned judgment passed by the trial court and considered the entire record.
29. The genesis of the appeal is the alleged rape and death of a minor girl. Conscious as we are of the sentiments of the complainant and the gravity of the alleged offence, we cannot lose sight of the fact that the appellant's case has to be decided on e anvil of law and not on the basis of sentiments or perceptions.
30. The appellant has been held quilty of rape and murder of a minor girl. The appellant is. admittedly, a neighbour of the deceased. The complainant is the father of the deceased The roof of he deceased's house is easily assessable from the appellant's house On the night of 18th March 2003, Om Wati, wife of the complainant, was sleeping on the roof of her house along with her daughters. The deceased, a daughter of Om Wati and Med Singh, complainant, was sleeping on a separate cot, Med Singh was away to another village on pilgrimage. Om Wati woke up at 10.00 P.M., and found that her daughter (the deceased) was not on her cot. She raised an alarm A number of neighbours gathered and began searching for the girl. In the meanwhile, as admitted by Om Wati, PW 2, a neighbour Vinod informed Police Post Malema by telephone, about the incident. The police arrived at Om Wati's house and made an effort to search for the girl, but she could not be found After about 45 minutes, the girl was recovered from the roof of Moharpal's house. in an unconscious star, and was frothing from the mouth She was removed to Escorts Hospital and her father was informed Med Singh, her father, arrived and then left for Escorts Hospital. The FIR was lodged two days after the incident on 20.3.2003 at 10.30 P.M under section 328 of the Indian Penal Code The statement refers to the appellant as the person who has administered poison to his daughter but does not make any reference to any person who saw the appellant The statements of witnesses were recorded under section 161 of the Code of Criminal Procedure on 21.3.2003. The police collected saliva etc. from the spot on 21003 and after the girl passed away, added section 302 IPC. The appellant was arrested on 22.3.2003. The appellant suffered a disclosure statement admitting that he had administered poison and could get a bold of poison recovered. The appellant got a bottle, Ex P7 recovered from a cupboard in his house, which as per Forensic Science Laboratory's report contained an organo phosphorous based poison The crucial witnesses are PW 1 Med Singh. father, PW 2 Om Wati, mother, PW 3 Ved Parkash, PW 4 Heti Ram. the doctors who treated the deceased and conducted the post mortem examination. The other material relied by the prosecution are-recovery of bottle containing poison, recovery of saliva, vomit, from the spot and the hospital, and the reports from the Forensic Science Laboratory.
31. The first argument relates to the delay in lodging the first information report, the initiation of investigation, the recording of statements of witnesses and collection of evidence. We are conscious that of lay by itself is insufficient to reject a prosecution case, but where delay is not explained and significant facts point to an attempt to find a convenient accused or feed the complainant's suspicion or facts and witnesses appear to be tailored to suit suspicion, a court would examine the evidence with great care so as to rule~ut the possibility of false implication, introduction of false witnesses and preparation of false evidence.
32. The deceased was found missing at 10.00 P.M. on 18.3.2003.
- Admittedly, Vinod, a neighbour, informed the police who arrived at the village and began a search for the deceased. The deceased was recovered in the presence of the police and referred to Escorts Hospital The first statement about the incident i.e. the statement of Med Singh, complainant, was recorded by the police on 20.3.2003 at 10. 00 P.M. The statements of other witnesses were also recorded on 20.3.2003 and the saliva and vomit etc. were recovered on 22.3.2003.
- (a) The deceased was found missing by her mother at 10.00 P.M. on 18.3.2003,
- (b) Admittedly the police were informed immediately and arrived within 45 minutes I he police made an attempt to search for the giri, but to no avail She was eventually on the roof of house of Moharpal, in the presence of the police.
- (c) PW 15 Tara Chand, Sub Inspector, Police Post, Adarsh Nagar, Police Station City Ballabgarh, has admitted that he was present with a police party at the village on the night of 18.3.2003 He has also deposed that they searched for the girl and that after she was discovered, he referred her to Escorts Hospital, Faridabad.
- (d) The presence of the police on the night of 18 3.20 admitted by all material witnesses, namely, PW 2 Om Wati, PW 3 Ved Parkash, and PW 4 Heti Ram.
- (e) No explanation is forthcoming as to why a report was not lodged on the night of 18 3 2003 itself and if lodged, what were its contents, its fate and why was it withheld from [tie court, The proceedings on the night of 18.3.2003 are not a part of the report filed under section 173 of the Code of Criminal Procedure;
- (f) The statements of the complainant and material witnesses. whose deposition form the basis of the conviction were recorded on 20th and 21.3.2003. respectively almost two/three days after the occurrence. No explanation is forthcoming for this delay.
- (g) The samples of cement, saliva and vomit etc. were recovered from the site only on 21.3.2003; and
- (H) If PW 1 Med Singh, father of the deceased, was not present in the village, the police should have recorded the statement of PVV 2 Om Watt and registered the FIR.
- (i) Admittedly, between 18.3.2003 to 21.3.2003, Ved Parkash PW 3 and Heti Ram, PW 4, the most signifcant witnesses, who saw the appellant, did not make any statement to anyone or to police at any point of time prior to the recording of their statement on 21.3.2003.
35. The prosecution was required to explain the delay particularly in recording the statements of the witnesses, PW 3 Ved Parkash and PW 4 Heti Ram who, allegedly, saw the appellant coming down the stairs of his house and one of whom, has, even deposed that he saw the appellant throwing the deceased over the wall on to the roof of house of Moharpal The absence of any explanation as to why they did not inform the police, or the family members on the night of 18.3.2003, itself raises a suspicion. The prosecution was also required to explain why their names are not mentioned in the statement made by Med Singh, to the police.
36. The trial court has considered the question of delay and held that it is irrelevant as delay can be attributed to the need to look after the girl before making a statement to the police. The finding, in our considered opinion, disregards the fact that the police arrived at the village within 45 minutes c1 incident the girl was recovered in the presence of the police and the Investigating Officer asked the family members to take the girl to hospital The police were present in the hospital and was actively seeking the opinion of doctors whether the deceased was fit to make a statement the complainant was also present in the hospital and therefore, nothing prevented the police from recording his statement on 19 3.2003 or during the day time of 20 3 2003 PW 2 Om Watt, PW 3 Ved Parkash, PW 4 Heti Ram and PW 15 Tara Chand Sub Inspector, have admitted that the entire village sat in protest on the G.T. Road abutting Ballabgarh. It is quite possible that the police may have refused to register a case and did so only after the agitation. If true, the police should have been honest enough to produce the proceedings of 18th March,2003, to set at rest any doubt about the truth of what transpired on the night of 18.3.2011. We are therefore, constrained to hold that the-unexplained delay in lodging the report and failure to produce proceedings of 18th March 2003 raises a serious doubt as to the correctness of the prosecution version.
37. The next argument relates to the alleged motive- PW 1 Med Singh father, and PW 2 Om Wati mother of the deceased have deposed that two months before the occurrence, the appellant was warned not to tease the deceased and a complaint was lodged with her father. We would not like to detain ourselves on the question of motive as motive is a double-edged weapon as it may be the cause of a crime as well as the reason for false implication.
38. The facts that require consideration and are crucial to the prosecution and the appellant's fate is the evidence adduced against the appellant. PW 1 Med Singh is the father of the deceased and PW 2 Om Wati is her mother. The deposition of Om Wati does not indict the appellant as she did not see the appellant with the deceased, but she merely suspected him of wrong doing. Similarly, Med Singh has no personal knowledge as he was away to another village, on a pilgrimage, returned in the morning and has only deposed about his belief that the appellant administered poison. The other evidence is the statements of PW 3 Ved Parkash, PW 4 Heti Ram, the evidence of recovery of a bottle of poison, got affected by the appellant in his disclosure statement. the medical evidence, the recovery of saliva, vomit and the reports of the Forensic Science Laboratory. We would, for a moment, disregard the delay and examine whether the statement of prosecution witnesses point unerringly to the guilt of the appellant.
39. PW 4 Heti Ram has deposed that while he and Ved Parkash were searching for the girl, he saw the appellant throwing the girl the roof of Moharpal s house whereas PW 3 Ved Parkash has deposed that he was alone when he was searching for the deceased. He has not deposed that he saw the appellant throwing the girl on the roof of the house but has deposed that he saw the appellant going down the stairs of his house and switching off the light.
40. The depositions of PW 3 Ved Parkash and PW 4 Heti Ram are the fulcrum upon which the prosecution rests its case and we would, therefore, repeat their depositions. PW 3 Ved Parkash has deposed that he saw the appellant going down the flight of stairs of his house and then switching off the light. In his cross-examination, he has stated that he was alone when he was searching for the deceased. PW 4 Heti Ram has deposed that he and Ved Parkash saw the appellant throwing the body of the girl from the roof of his house on to the roof of house of Moharpal. We may have accepted these contradictions as attributable to a bona fide lapse in memory of witness deposing after a long time but other factors persuade us to doubt the authenticity of their depositions. It is rather surprising that these witnesses did not raise any alarm or inform anyone, much less the mother of the deceased, the police party which, was, admittedly, present merit what they had seer and only came toward three days after the incident to record their statements As admitted by these witnesses, there was a huge agitation that led to the blockade of the G.T Road We have dealt with the delay in their statements but would like to once again place on record our belief that these witnesses were set up so as to feed the suspicion raised by the complainant If these witnesses had witnessed the appellant throwing the girl on Moharpal's roof or seen him coming down the stairs, they would have at least informed Om Wati, the police or others who had gathered or Med Singh when he came to the village in the morning and their names would have found mention in Med Singh initial statement, Ex. PA, recorded two days after the incident on 20.3.2003. We have examined the statement, Ex.PA and their depositions with a great degree of care, particularly in view of the fact that a girl is alleged to have been raped and murdered, but material contradictions, delay in coming forward, not informing the girl's mother or the police on 18.3.2003 when the police were present, not raising any alarm, not informing the complainant etc. leave us with no option but to hold that Ved Parkash, PW 3, and Heti Ram, PW 4, have not disclosed the truth. depositions of these witnesses, in our considered opinion, are contradictory inconsistent as to material particulars and do not inspire confidence.
41. The next piece of evidence that requires consideration is - the case set up by the prosecution that the appellant administered poison iron a bottle, that was got recovered at his instance The bottle admittedly contains an organo phosphorous based insecticide, but surprisingly the report prepared by the Chemical Analyst and submitted by the Forensic Science Laboratory reveals that the deceased died of aluminium phosphide poisoning It appears that as the deceased was frothing from the mouth and doctors suspected poisoning, the police, in order to fortify its case forced the appellant to suffer a disclosure statement and affect recovery of a poison/insecticide. The police however, got the wrong poison recovered The prosecution was required to explain this significant flaw in its case but as so often happens no explanation is forthcoming The argument accepted by the trial court to explain this lapse is that the appellant intentionally go the wrong poison recovered, is to far fetched to believe. The benefit of a flaw in the prosecution case has to be extended to the accused and not to the prosecution It appears that the true facts as to why the girl was missing from her bed and what happened thereafter have been concealed The onus to explain this serious flaw in the prosecution case lay upon the prosecution. Its failure to explain this change in the poison, allegedly. administered by the appellant to the deceased, strikes at the root of the prosecution case and as a circumstance fortifies our view that facts were tailored, evidence manufactured and witnesses procured so as to fulfil a pre-conceived notion of suspicion It is surprising that the police made no attempt even during the trial to rectify this defect no explain this contradiction. much less to discard this damaging evidence but instead relied upon this evidence as a circumstance to establish the culpability of the appellant.
42. We shall now deal with the medical evidence so as to ascertain arc made out I he medical examination of the deceased, reveals that the hymen was torn, semen stairs have been detected on clothes of the deceased, there by establishing that the deceased was subjected to sexual intercourse. The injuries found on the person of the deceased are as follows :
- "1 Reddish purple contusion were present all around the neck extending upward upto chin anteriorly and lobules of both pinna laterally and occipital region of scalp posteriorly and interiorly upto upper 3 cm of the chest near base of neck, on dissection sub-staneous collection of blood was present. Lobules of both ears were swollen and contuse.
- 2. Contusion and diffused swelling on the right side of forehead. It was purplish in colour.
- 3. On opening both eyes, balls were bulging and sub-conjuctival haemorrhage were present.
- 4. Contusions were present on both axilas and lateral aspect of chest on both sides. It was reddish in colour and there was subcutaneous collection of blood.
- 5. Small abrasion with clotted blood on the dorsum of both elbows, lambar region and dorsum of left foot.
- 6. Abrasion 6 cm x 1/2 cm on the left groin clotted blood was present.
- 7. Small circular canula on the right side of the neck and right inguinal regions."
44. PW 13 Dr. Rakesh Singh, Senior Medical Officer, Escorts Hospital, Faridabad, appearing as a prosecution witness, has deposed,, that there was no external mark of injury, but the prosecution did not choose to cross-examine this witness.
45. The medical evidence leaves no doubt that the deceased was subjected to sexual intercourse but whether this intercourse was consensual or forcible, would depend upon the evidence. The prosecution evidence regarding rape, is based upon injuries on the deceased the detection of semen on her clothes and on the underwear of Dharmender (the appellant) and the statements of ved Parkash and Heti Ram, PW 3 and PW 4, who, allegedly, saw the appellant going down the flight of stairs of his house and throwing the girl on to the roof of Moharpal respectively a few minutes before the girl was discovered We have already recorded our opinion as to the nature of statements of Ved Parkash PW 3 and Heti Ram PW 4 and would therefore, not repeat ourselves. It wears that the actual story of the incident has been concealed. It is rather surprising that a girl who is alleged to have been kidnapped from her bed, when her mother was sleeping on the adjoining bed, does not raise an alarm and though said to be brutally raped. is fully clothed, makes no noise, whether at the time of her kidnapping or at any time thereafter We have also examined the possibility that the appellant may have restrained her and prevented her from making any noise, but in the absence of evidence to raise such an inference the truth. as always lies somewhere in between and is apparently sealed between the lips of the deceased, the accused and her parents We would not like to speculate as to the truth of the matter but in view of the delay a loading the report, the withholding of relevant record with respect to police proceedings on the night of 18.3.2003. and material contradictions in the statements of prosecution witnesses, namely, Ved Parkash PW 3 and Heti Ram PW 4 the recovery of the wrong poison and that the truth may have been concealed i rave no option hit to hold that these facts cast a serious doubt on the prosecution story We, therefore, gram the benefit of doubt to the appellant, accept the appeal and acquit the appellant of all charges. The appellant be set at liberty forthwith. if not required in any other case a consequence, the criminal revision for echancement sentence stands dismissed.