Sec.366 and sec. 376 (2)(g) - gang rape of I.P.C - Sec.114 A and sec.157 of Indian Evidence Act - Minor was gang raped -one of the accused was caught while committing rape and others fled away - all are known persons - No external injuries - Doctor found the victim was not virgin - FSL report clearly found semen on the clothes of victim and also clothes of accused - delay in giving report by morning is not at all delay as they were frightened - when prosecutrix deposed that she was gang raped with out her consent - automatically sec.114 A of evidence Act came in to play and court has to believe that the act was done with out her consent -No individual committal of offence need not be proved specifically as all accused are bound to answer the same even though their clothes found no semen parts - High court order of acquittal was set aside and Apex court allowed the appeal of state = State of Rajasthan .… Appellant Versus Roshan Khan & Ors. ….. Respondents = 2014 ( January vol - 1 ) judis. Nic. In / S.C. / file name = 41148

Sec.366 and sec. 376 (2)(g) - gang rape of I.P.C - Sec.114 A and sec.157 of Indian Evidence Act - Minor was gang raped -one of the accused was caught while committing rape and others fled away - all are known persons - No external injuries - Doctor found the victim was not virgin - FSL report clearly found semen on the clothes of victim and also clothes of accused - delay in giving report by morning is not at all delay as they were frightened - when prosecutrix deposed that she was gang raped with out her consent - automatically sec.114 A of evidence Act came in to play and court has to believe that the act was done with out her consent -No individual committal of offence need not be proved specifically as all accused are bound to answer the same even though their clothes found no semen parts  - High court order of acquittal was set aside and Apex court allowed the appeal of state = 
Yet the High Court has come to  the  conclusion  that
          the report (Ext.P-1) must have been filed at about 11.15  am.  and
          was ante timed to 6.00 a.m.  For this conclusion, we do  not  find
          any evidence, but only a surmise that Ext.P-1 must have been typed
          at the court premises after 11.00 a.m.
Ext. P-39, which is the report under Section 293,    Cr.P.C.  of  the
FSL, Rajasthan, gives the following descriptions of the articles and  result
of examination:
                       “Description of Articles
|Packet Parcel No.    |Exhibit No. marked by|Details of exhibits  |
|                     |me                   |                     |
|A.                   |1                    |Vaginal Swab         |
|“                    |2                    |Vaginal smear        |
|B.                   |3                    |Salwar               |
|“                    |4                    |Kameej               |
|1.                   |5                    |Pants                |
|2.                   |6                    |Pants                |
|“                    |7                    |Underwear            |
|3.                   |8                    |Pants                |
|4.                   |9                    |Pants                |
|“                    |10                   |Underwear            |
|5.                   |11                   |Pants                |
|“                    |12                   |Underwear            |
|A.                   |13                   |Underwear            |

                            Result of Examination

Human semen was detected in exhibit No.1, 2 (from packet marked A), 3, 4
(from B), 5 (from 1), 7 (from 2), 8 (from 3) & 10 (from 4).

Semen was not detected in exhibit No.6 (from 2), 9 (from 4), 11, 12 (from
5) & 13 (from A).

Exhibit No.1, 2 (from A) have been consumed during the examination.

                                         (Dr. PRABHA SHARMA)”



14.     Thus, the evidence of the prosecutrix (PW-2) is clear that  all  the
six  respondents,  Akbar,  Jangsher,  Roshan,  Yakoob,  Kadar   and   Shafi,
committed rape on her without her consent and forcibly.   This  evidence  of
the  prosecutrix  (PW-2)  is  also  corroborated  by  the  evidence  of  the
informant (PW-1), who had himself witnessed Akbar  committing  rape  on  the
prosecutrix.  PW-2 had also  informed  PW-1  soon  after  the  rape  by  the
accused persons that not only Akbar but the other five respondents also  had
forcibly committed rape on her.  The evidence of PW-1 and PW-2 that all  the
six respondents had committed rape on the prosecutrix is  also  corroborated
by the complaint (Ext.P-1) made by PW-1 to the police within a few hours  of
the incident as provided in Section 157 of the  Indian  Evidence  Act.  
As  we  have  already
          noticed, the prosecutrix (PW-2) has deposed categorically that all
          the six persons had raped her without her  consent  and  forcibly.
          Section 114A of the Indian Evidence  Act,  1872  clearly  provides
          that in a prosecution for rape under clause (g) of sub-section (2)
          of Section 376, IPC, where sexual intercourse by  the  accused  is
          proved and the question is whether it was without the  consent  of
          the woman alleged to  have  been  raped  and  she  states  in  her
          evidence before the Court that she  did  not  consent,  the  Court
          shall presume that she did not consent.  Since the prosecutrix (PW-
          2) has categorically said that sexual intercourse was committed by
          the accused without her consent and forcibly,  the  Court  has  to
          draw the presumption that she did not give consent to  the  sexual
          intercourse committed on her by the accused persons.  The  defence
          has not led any  evidence  to  rebut  this  presumption.   In  our
          considered opinion, the High Court could not have, therefore, held
          that there were circumstances to show that PW-2 had  gone  on  her
          own and on this ground acquitted the respondents.
From Ext.P-31 read with Ext.P-39, it is also  clear  that  human
          semen was detected from the pants of Akbar and  Jangsher  and  the
          underwears of Safi and Yakub.  As per the medical  evidence,  four
          persons had committed rape on the prosecutrix.  Explanation  1  to
          Section 376(2)(g), IPC, states that where a woman is raped by  one
          or more in a group of  persons  acting  in  furtherance  of  their
          common intention, each of the persons  shall  be  deemed  to  have
          committed gang rape within the meaning of the  sub-section.   This
          Court has, therefore, consistently held that where there are  more
          than one person acting in furtherance of their common intention of
          committing rape  on  a  victim,  it  is  not  necessary  that  the
          prosecution should adduce clinching proof of a  completed  act  of
          rape by each one of the accused on the victim. 
The judgment of the High Court is thus contrary to the  evidence
          on record and is liable to be set aside.  We accordingly set aside
          the judgment of the High  Court  acquitting  the  respondents  and
          restore the judgment of the trial court convicting the respondents
          for the offences  under  Sections  366  and  376(2)(g),  IPC,  and
          maintain the  sentences  imposed  for  the  two  offences  on  the
          respondents by the trial court.

      19.   The appeals are accordingly allowed.  The  respondents  will  be
          taken into custody forthwith to undergo  the  remaining  sentence.

2014 ( January vol - 1 ) judis. Nic. In / S.C. / file name = 41148
Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NOs. 79-80 of 2005

State of Rajasthan                                            .… Appellant

                                   Versus

Roshan Khan & Ors.                                   ….. Respondents




                               J U D G M E N T

A. K. PATNAIK, J.


      These are appeals by way of Special Leave under  Article  136  of  the
Constitution against the judgment dated 21.11.2003  of  the  Rajasthan  High
Court, Jodhpur  Bench,  setting  aside  the  judgment  of  the  trial  court
convicting the respondents of the offences  punishable  under  Sections  366
and 376(2)(g) of the Indian Penal Code, 1860 (for short ‘IPC’).
Facts
     2. The facts very briefly are that  on  28.04.1999  Ruliram  lodged  a
        complaint at the Bhadra Police  Station  in  District  Hanumangarh,
        stating as follows: There was a marriage of  the  daughter  of  his
        brother Gyan Singh for  which  a  feast  was  arranged  by  him  on
        27.04.1999.  His 15-16 years old daughter, who was  slightly  weak-
        minded, disappeared.  When she did not return for quite some  time,
        he and others started searching her.  At about 9.00 p.m., a milkman
        informed him that he had seen six boys taking away a  girl  towards
        Kalyan Bhoomi.  About 1.00 a.m. on 28.04.1999, when Ruliram was  on
        a scooter with Gyan  Singh  still  looking  for  his  daughter,  he
        noticed five boys  in  the  light  of  the  scooter  near  the  old
        dilapidated office building of the Sheep and  Wool  Department  and
        all the five, seeing the light of the scooter fled.  When they went
        into the old building, they found Akbar having  sexual  intercourse
        with his daughter and she was shouting.  They caught hold of  Akbar
        who later informed them  that  all  the  remaining  five  had  also
        performed sexual intercourse with his daughter and  they  knew  the
        remaining  five  persons.   The  police  registered  a  case  under
        Sections 147 and 376, IPC, and carried out investigation and  filed
        a charge-sheet against the six respondents under  Sections  376/34,
        IPC, and the case was committed for trial.

     3. In the course of trial before the Additional Sessions Judge,  Nohar
        Camp, Bhadra, the prosecution examined as many as  nine  witnesses.
        Ruliram was  examined  as  PW-1,  his  daughter  (prosecutrix)  was
        examined as PW-2, and Dr. Ramlal, who had  medically  examined  the
        prosecutrix, was examined as PW-7 and the report  of  the  Forensic
        Science Laboratory was marked as Ext.P-39.
The Additional Sessions
        Judge relied on the evidence of PW-1, PW-2 and PW-7 and the  Ext.P-
        39 and convicted the six respondents under  Section  376(2)(g)  and
        Section 366, IPC, by judgment dated 18.11.2000, and  after  hearing
        them on the question  of  sentence,  sentenced  them  for  rigorous
        imprisonment for ten years each and a fine of Rs.5,000/-  each,  in
        default a further sentence of two months rigorous imprisonment each
        for  the  offence  under  Section  376(2)(g),  IPC,  and   rigorous
        imprisonment for four years each and a fine of Rs.3,000/- each,  in
        default a further sentence of one month rigorous imprisonment  each
        for the offence under Section 366, IPC.   
The  Additional  Sessions
        Judge, however, directed that the sentences for  the  two  offences
        are to run concurrently and upon deposit of  fine  by  the  accused
        persons, a compensation of Rs.25,000/- be paid to the prosecutrix.


     4.  The respondents filed criminal appeals before the High  Court  and
        the High Court held in the impugned judgment that the deposition of
        the prosecutrix (PW-2) was not believable and the evidence  of  Dr.
        Ramlal (PW-7) did not corroborate the  prosecution  story  in  some
        respects.  
The High Court further held that the evidence  given  by
        Ruliram (PW-1) that the prosecutrix was only aged 14  years  cannot
        be believed and that she could be aged up to  19  years  and  there
        were circumstances to suggest that she went with the respondents on
        her own.  
The High Court was also of the view that the delay on the
        part of Ruliram (PW-1) to lodge the FIR on 28.04.1999 at 11.00 a.m.
        when the incident came to his knowledge at 1.00 a.m.  cast  serious
        doubts on the prosecution case.  The  High  Court  accordingly  set
        aside the judgment of the Additional Sessions  Judge,  allowed  the
        appeals and acquitted all the six respondents of the charges.




Contentions of learned counsel for the parties:

5.    Dr. Manish Singhvi, learned counsel for the State submitted  that  the
High Court should not have disbelieved the evidence  of  PW-1  and  PW-2  as
there was no enmity between these witnesses and  the  accused  persons.   He
referred to the evidence of PW-1, PW-2  and  PW-7  as  well  as  FSL  report
(Ext.P-39) to show that a case of gang rape by the six accused  persons  had
been established beyond reasonable doubt.  He  further  submitted  that  the
High Court could not have held that  there  were  circumstances  to  suggest
that the prosecutrix could have gone on her own with  the  accused  persons.
He relied on Section 114A of the Indian Evidence Act,  1872  which  provides
that where sexual intercourse by the accused is proved and the  question  is
whether it was without the consent of the woman alleged to have  been  raped
and she states in her evidence before the Court that she  did  not  consent,
the Court shall presume that she did not consent.   He  submitted  that  the
High Court has lost sight of this presumption  under  Section  114A  of  the
Indian Evidence Act.

6.    Dr. Singhvi next  submitted  that  the  High  Court  should  not  have
entertained doubts about the prosecution story on the  ground  of  delay  in
lodging the FIR.  He  submitted  that  no  father  would  like  to  lodge  a
complaint making a false allegation of rape of his daughter.  He  relied  on
the decision of this Court in
Balwant Singh and Others v.  State  of  Punjab [(1987) 2 SCC 27]
in which a similar  contention  that  the  father  of  the
prosecutrix had lodged the FIR  on  account  of  previous  enmity  with  the
accused was rejected on the ground that a father  of  the  proscutrix  would
not falsely involve his daughter in a case of rape by the accused.

7.    Dr. Singhvi finally submitted that the prosecutrix in this case was  a
mentally deficient girl and was vulnerable to sexual abuse  and,  therefore,
the High Court should have been  sensitive  while  deciding  the  case.   He
cited the decisions of this Court in State of H.P. v. Gian Chand  [(2001)  6
SCC 71] as well as in Tulshidas Kanolkar v. State of Goa [(2003) 8 SCC  590]
in support of this submission.  He submitted that in the  present  case  the
trial court had rightly convicted the respondents  under  Sections  366  and
376(2)(g),  IPC  but  the  High  Court  reversed  the  conviction   of   the
respondents and acquitted them of the charges.  He submitted that on  almost
similar facts this Court in State of Rajsthan v. N.K. [(2000) 5 SCC 30]  has
set aside the judgment of the High Court and restored the conviction of  the
accused persons by the trial court.

8.    In reply, Mr. Mukesh Sharma, learned counsel for  respondent  Nos.  1,
2, 3, 4 and 6, 
submitted that
Dr. Ramlal (PW-7) has not found any injury  on
the private parts of the prosecutrix and that he has found only  some  marks
of eczema.
He further submitted that
PW-1 has only  stated  that  with  the
help of the scooter light, he saw five persons running away but he  has  not
been able to properly identify these five persons, namely, respondents  Nos.
1, 2, 3, 4 and 6.
He submitted that
as he had only found Akbar  (respondent
No.5) having sexual intercourse with the prosecutrix, no case of  gang  rape
under Section 376(2)(g), IPC, is made out.

9.    Mr. Sidharth Dave, amicus curiae for respondent No.5,  
submitted  that
the prosecution story that the prosecutrix was  a  mentally  deficient  girl
has not been proved.
He argued that, on the  contrary,
the  doctor  (PW-7)
has opined that the mental condition  and  equilibrium  of  the  prosecutrix
were normal.
He next submitted that the
High Court has rightly come to  the
conclusion that the FIR was actually lodged at 11.00 a.m. on 28.04.1999  and
had been ante timed to  6.00  a.m.  on  28.04.1999.  
He  argued  that  this
manipulation casts serious doubts on the prosecution  story  that  rape  has
been committed on the prosecutrix.
He submitted that
Dr. Ramlal (PW-7)  has
found on examination  of  the  prosecutrix  that  there  was  one  posterior
perineal tear of the size 1/4” x 1/8” x 1/8” caused within 24 hours and  had
also given his opinion that this injury may result from  the  fall  on  some
hard surface  and,  therefore,  a  case  of  rape  by  Akbar  had  not  been
established beyond reasonable doubt.
He submitted that the  view  taken  by
the High Court was a plausible one on the facts of this case and should  not
be interfered with an appeal under Article  136  of  the  Constitution.  
He
relied on the judgment of this Court
in State of  Rajasthan  vs.  Shera  Ram[(2012) 1 SCC 602]
in support of this submission.



Findings of the Court

10.    We have perused the evidence of  informant  (PW-1).   He  has  stated
that 28.04.1999 was the date of marriage  of  Manju,  the  daughter  of  his
brother Gyan,  and  during  dusk  time  on  27.04.1999,  his  daughter  (the
prosecutrix), who was 14 years old and not mentally balanced,  had  gone  to
call the ladies of the locality but did not return.
He searched the  entire
village and thereafter he went on the scooter driven  by  his  brother  Gyan
Singh towards village Rajpura and on the way a milkman told  them  that  six
boys catching the hand of a girl  were  taking  her  towards  the  cremation
ground.
They went searching for the prosecutrix  in  the  cremation  ground
but did not find her there.
Thereafter,  they  turned  the  scooter  towards
village Motipura and they found that  five  persons  were  standing  in  the
cluster  of  keekar  trees  near  the  Bhedia  Daftar  (an  old  dilapidated
building) and on seeing them,  five  persons  fled  away.   When  they  went
inside the dilapidated building they found that the prosecutrix  was  crying
and Akbar was lying over her and having sexual intercourse with  her.
 PW-1
has also stated that the five persons who fled away  are  Roshan,  Jangsher,
Yakoob, Shafi and Kadar.  
He has  also  said  that  all  the  aforesaid  six
persons are residents of his Mohalla (locality) and were present  in  Court.
PW-1 has further stated that by the time they reached the Bhedia Daftar,  it
was about 1.00 a.m. of 28.04.1999 and he took the prosecutrix and  Akbar  to
the Police Station and submitted the complaint (Ext.P-1)  at  6.00  a.m.  of
28.04.1999.

11.     We have also perused the evidence of prosecutrix   (PW-2).  She  has
stated that 
when the marriage of the daughter of his uncle Gyan was to  take
place, she had gone out at dusk time from her house to call ladies  to  sing
songs and on the way she met Akbar who told her that her uncle  was  looking
for her.   
Then  she  accompanied  with  Akbar  proceeded  further  and  met
Jangsher near the railway crossing who also told  her  that  her  uncle  was
looking for her.  
She then started walking and Akbar and  Jangsher  followed
her and after some time she found Shafi and Yakoob and all the four  persons
started following her and after some time she saw Kadar and Roshan  and  all
the six persons took her to a  bridge  on  the  road  and  from  there  they
brought her to the tree of Tali in  the  field.   
Thereafter,  all  the  six
persons made her fall  beneath  the  Tali  tree  forcibly  and  removed  her
salwar, caught hold of her and took her to a distance  of  two-three  fields
and then to a hut.  
Then they took her to  Bhedia  Daftar  where  also  they
committed sexual intercourse with her and when Akbar was committing rape  on
her, PW-1 and her uncle came and the remaining five persons fled away.   
She
has stated that  all  these  six  accused  persons  belong  to  her  Mohalla
(locality) and they were present in Court.   She  has  also  identified  six
accused persons in Court.  
She has categorically stated  that  all  the  six
persons committed rape on her without her consent and forcibly.

12.   We have also read the evidence of Dr.  Ramlal  (PW-7)
He  has  stated
that he has examined the prosecutrix and prepared  the  medical  examination
report (Ext.P-15) and he had not found any mark  of  injury  on  her  hidden
parts, breast, thighs and forearm.  
He has further  stated  that  her  hymen
was already ruptured and there was one posterior perineal tear of  the  size
1/4” x 1/8” x 1/8” caused within 24 hours.
His opinion is that  prosecutrix
was habitual to sexual intercourse and there was  nothing  to  suggest  that
she had not been raped but the  vaginal  swab  and  smear  slides  could  be
tested to find out the presence of sperms.  
PW-7 has also examined  all  the
six accused persons and also stated that their  pants  and  underwears  were
taken into possession and sealed and delivered to  the  SHO,  Bhadara.  
The
SHO, Bhadara, has been examined as PW-9 and he has  stated  that  he  handed
over the pieces of medical evidence received from  the  Medical  Officer  of
Govt. Hospital, Bhadara to the in-charge of the Malkhana  and  later  on  he
got all such evidence in eight packets sent to the FSL, Rajasthan  for  test
and the FSL, Rajasthan, submitted the test report (Ext.P-39).

13.    Ext. P-39, which is the report under Section 293,    Cr.P.C.  of  the
FSL, Rajasthan, gives the following descriptions of the articles and  result
of examination:
                       “Description of Articles
|Packet Parcel No.    |Exhibit No. marked by|Details of exhibits  |
|                     |me                   |                     |
|A.                   |1                    |Vaginal Swab         |
|“                    |2                    |Vaginal smear        |
|B.                   |3                    |Salwar               |
|“                    |4                    |Kameej               |
|1.                   |5                    |Pants                |
|2.                   |6                    |Pants                |
|“                    |7                    |Underwear            |
|3.                   |8                    |Pants                |
|4.                   |9                    |Pants                |
|“                    |10                   |Underwear            |
|5.                   |11                   |Pants                |
|“                    |12                   |Underwear            |
|A.                   |13                   |Underwear            |

                            Result of Examination

Human semen was detected in exhibit No.1, 2 (from packet marked A), 3, 4
(from B), 5 (from 1), 7 (from 2), 8 (from 3) & 10 (from 4).

Semen was not detected in exhibit No.6 (from 2), 9 (from 4), 11, 12 (from
5) & 13 (from A).

Exhibit No.1, 2 (from A) have been consumed during the examination.

                                         (Dr. PRABHA SHARMA)”



14.     Thus, the evidence of the prosecutrix (PW-2) is clear that  all  the
six  respondents,  Akbar,  Jangsher,  Roshan,  Yakoob,  Kadar   and   Shafi,
committed rape on her without her consent and forcibly.   This  evidence  of
the  prosecutrix  (PW-2)  is  also  corroborated  by  the  evidence  of  the
informant (PW-1), who had himself witnessed Akbar  committing  rape  on  the
prosecutrix.  PW-2 had also  informed  PW-1  soon  after  the  rape  by  the
accused persons that not only Akbar but the other five respondents also  had
forcibly committed rape on her.  The evidence of PW-1 and PW-2 that all  the
six respondents had committed rape on the prosecutrix is  also  corroborated
by the complaint (Ext.P-1) made by PW-1 to the police within a few hours  of
the incident as provided in Section 157 of the  Indian  Evidence  Act.  
Dr.
Ramlal (PW-7) has opined after  medically  examining  the  prosecutrix  that
there was nothing to suggest that  she  had  not  been  raped.  
To  confirm
whether rape was committed on the prosecutrix by the  six  accused  persons,
the vaginal swab and vaginal smear as well  as  salwar  and  kameej  of  the
prosecutrix and the pants and underwears of the accused  persons  were  sent
by the letter (Ext.P-31) to the FSL, Rajasthan, and as  per  the  report  of
the FSL, Rajasthan (Ext.P-39), human semen was detected in the vaginal  swab
and vaginal smear (Exts.1 & 2 from packet ‘A’), salwar  and  kameej  of  the
prosecutrix (Exts.3 & 4 from packet ‘B’), two pants (Ext.5  from  packet  1,
and Ext. 8 from packet 3) and two  underwears  (Ext.7  from  packet  2,  and
Ext.10 from packet 4).  The medical evidence, therefore,  also  corroborates
the evidence of PW-1 and PW-2 that there was sexual intercourse between  the
prosecutrix and the accused persons.
      15.   We cannot accept the submission of Mr. Siddharth  Dave,  learned
          amicus curiae for respondent No.5 that the finding  given  by  the
          High Court that the prosecutrix may have  gone  with  the  accused
          persons on her own is a plausible one and should not be interfered
          with under Article 136 of the Constitution.  As  we  have  already
          noticed, the prosecutrix (PW-2) has deposed categorically that all
          the six persons had raped her without her  consent  and  forcibly.
          Section 114A of the Indian Evidence  Act,  1872  clearly  provides
          that in a prosecution for rape under clause (g) of sub-section (2)
          of Section 376, IPC, where sexual intercourse by  the  accused  is
          proved and the question is whether it was without the  consent  of
          the woman alleged to  have  been  raped  and  she  states  in  her
          evidence before the Court that she  did  not  consent,  the  Court
          shall presume that she did not consent.  Since the prosecutrix (PW-
          2) has categorically said that sexual intercourse was committed by
          the accused without her consent and forcibly,  the  Court  has  to
          draw the presumption that she did not give consent to  the  sexual
          intercourse committed on her by the accused persons.  The  defence
          has not led any  evidence  to  rebut  this  presumption.   In  our
          considered opinion, the High Court could not have, therefore, held
          that there were circumstances to show that PW-2 had  gone  on  her
          own and on this ground acquitted the respondents.

      16.   From Ext.P-31 read with Ext.P-39, it is also  clear  that  human
          semen was detected from the pants of Akbar and  Jangsher  and  the
          underwears of Safi and Yakub.  As per the medical  evidence,  four
          persons had committed rape on the prosecutrix.  Explanation  1  to
          Section 376(2)(g), IPC, states that where a woman is raped by  one
          or more in a group of  persons  acting  in  furtherance  of  their
          common intention, each of the persons  shall  be  deemed  to  have
          committed gang rape within the meaning of the  sub-section.   This
          Court has, therefore, consistently held that where there are  more
          than one person acting in furtherance of their common intention of
          committing rape  on  a  victim,  it  is  not  necessary  that  the
          prosecution should adduce clinching proof of a  completed  act  of
          rape by each one of the accused on the victim.  (see Om Prakash v.
          State of Haryana [(2011) 14 SCC 309],  Ashok  Kumar  v.  State  of
          Haryana [(2003) 2 SCC 143], Bhupinder  Sharma  v.  State  of  H.P.
          [(2003) 8 SCC 551], Pardeep Kumar v. Union Admn.  [(2006)  10  SCC
          608] and Priya Patel v. State of M.P. [(2006) 6 SCC 263]).   Thus,
          we cannot accept the submissions of  Mr.  Mukesh  Sharma,  learned
          counsel for respondent nos.1, 2, 3, 4 and  6,  and  Mr.  Siddharth
          Dave, learned amicus curiae for respondent No.5, that the  medical
          evidence do not establish  a  case  of  gang  rape  under  Section
          376(2)(g), IPC.

      17.   The High Court, however, has considered the delay on the part of
          informant (PW-1) to lodge the FIR as a relevant  factor  to  doubt
          the prosecution story.  We find that PW-1 has explained the  delay
          in his evidence.  He has stated that after he found  his  daughter
          at about 1.00 a.m. on 28.04.1999 at the Bhedia Daftar  with  Akbar
          and after the five other accused persons had fled,  they  returned
          to their house at 2.00 a.m.  and  remained  at  their  house  till
          before sunrise  and  thereafter  lodged  the  FIR  at  the  Police
          Station.  He has further stated that the delay from 2.00  a.m.  to
          6.00 a.m. in lodging the report was on account of  the  fact  that
          his wife was sick and he was also  frightened  and  there  was  no
          other person to go to the police station.  He has also stated that
          he returned home from the police station at about 9.00  a.m.   The
          SHO of Bhadara Police Station has in his evidence stated  that  on
          28.04.1999 the  informant  appeared  in  the  police  station  and
          produced  a  written  report  (Ext.P-1)  before  him.   In  cross-
          examination on behalf of the accused-Roshan, Shafi and Yakoob, PW-
          9 has stated that Ext.P-1 was produced before him at 6.00 a.m.  on
          28.04.1999.  Yet the High Court has come to  the  conclusion  that
          the report (Ext.P-1) must have been filed at about 11.15  am.  and
          was ante timed to 6.00 a.m.  For this conclusion, we do  not  find
          any evidence, but only a surmise that Ext.P-1 must have been typed
          at the court premises after 11.00 a.m.  Thus, the report (Ext.P-1)
          was filed by   PW-1 at 6.00  a.m.  in  the  morning  reporting  an
          incident that he had witnessed between 1.00 a.m. and 2.00 a.m.  on
          28.04.1999 and the period from 2.00 a.m.  to  6.00  a.m.,  in  our
          considered opinion, has been sufficiently explained by PW-1 in his
          evidence that he could not leave his wife alone until sunrise.  As
          has been rightly submitted by Dr. Singhvi, no father would lodge a
          false complaint that his daughter has been gang-raped.   The  High
          Court should not have doubted the prosecution story on the  ground
          of delay in lodging the FIR.

      18.   The judgment of the High Court is thus contrary to the  evidence
          on record and is liable to be set aside.  We accordingly set aside
          the judgment of the High  Court  acquitting  the  respondents  and
          restore the judgment of the trial court convicting the respondents
          for the offences  under  Sections  366  and  376(2)(g),  IPC,  and
          maintain the  sentences  imposed  for  the  two  offences  on  the
          respondents by the trial court.

      19.   The appeals are accordingly allowed.  The  respondents  will  be
          taken into custody forthwith to undergo  the  remaining  sentence.




                                                               .……………………….J.
                                                           (A. K. Patnaik)



                                                               ………………………..J.
                                                           (Gyan Sudha
Misra)
New Delhi,
January 15, 2014.

Sec.5 of Limitation Act - Delay of 481 days in filing special leave petition - Moving file from department to another department is not a valid reason for condoning the delay - Limitation Act equally applies to the Govt. Bodies also - it is settled law that only in the absence of gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice - Moving file from department to another department is not a valid ground - Apex court dismissed the petition = State of U.P. Thr. Exe. Engineer & Anr. …. Petitioner(s) Versus Amar Nath Yadav …..Respondent(s) = 2014 ( January vol - 1 ) judis.Nic. In / S.C. / file name = 41147

Sec.5 of Limitation Act - Delay of 481 days in filing special leave petition - Moving file from department to another department is not a valid reason for condoning the delay - Limitation Act equally applies to the Govt. Bodies also - it is settled law that only in the absence of gross  negligence  or deliberate inaction or lack of bona fides, a liberal  concession  has to be adopted to advance substantial justice - Moving file from department to another department is not a valid ground - Apex court dismissed the petition =
There is a delay of 481 days in filing this Special Leave Petition  and
     by means of present application petitioner seeks condonation thereof.
 In the application the petitioner  has  attributed  the  delay  to  the
     moving of file from one Department/ Officer to  the  other.  We  hardly
     find this to be a sufficient explanation for condoning such an abnormal
     delay. 
2014 ( January vol - 1 ) judis. Nic. In / S.C. / file name = 41147

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
               SPECIAL LEAVE PETITION (CIVIL) NO. _882_/ 2014
                    (Arising out of CC No. 20855 of 2013)

    State of U.P. Thr. Exe. Engineer & Anr.                  ….
    Petitioner(s)
                                   Versus
    Amar Nath Yadav
    …..Respondent(s)

                               J U D G M E N T
     A.K. SIKRI, J.




  1. There is a delay of 481 days in filing this Special Leave Petition  and
     by means of present application petitioner seeks condonation thereof.
  2. In the application the petitioner  has  attributed  the  delay  to  the
     moving of file from one Department/ Officer to  the  other.  We  hardly
     find this to be a sufficient explanation for condoning such an abnormal
     delay. This Court in the case of Postmaster General and Ors. vs. Living
     Media India Ltd.; (2012) 3 SCC 563 has deprecated such practices on the
     part of the Government Authorities/ Departments in the following words:-


           “It is not in dispute that the  person(s)  concerned  were  well
           aware or conversant  with  the  issues  involved  including  the
           prescribed period of limitation for taking up the matter by  way
           of filing a Special Leave Petition in this  Court.  They  cannot
           claim that they have a separate period of  limitation  when  the
           Department was possessed with competent  persons  familiar  with
           Court proceedings. In the absence of  plausible  and  acceptable
           explanation, we are posing a question why the  delay  is  to  be
           condoned mechanically merely because the Government or a wing of
           the Government is a party before us.


           Though we are  conscious  of  the  fact  that  in  a  matter  of
           condonation of delay 
when  there  was  no  gross  negligence  or
           deliberate inaction or lack of bona fides, 
a liberal  concession
           has to be adopted to advance substantial justice, 
we are of  the
           view that in the facts and circumstances, Department cannot take
           advantage of various earlier decisions. 
The claim on account  of
           impersonal machinery and inherited bureaucratic  methodology  of
           making several notes cannot be accepted in view  of  the  modern
           technologies being used and available.  
The  law  of  limitation
           undoubtedly binds everybody, including the Government.


           In our view, it is the right time to inform all  the  government
           bodies, their agencies and instrumentalities  that  unless  they
           have reasonable and acceptable explanation  for  the  delay  and
           there was bona fide effort, there is no need to accept the usual
           explanation that the file was  kept  pending  for  process.  The
           government departments are under a special obligation to  ensure
           that they perform their duties with  diligence  and  commitment.
           Condonation of delay is an exception and should not be  used  as
           an anticipated benefit for the Government Departments.  The  law
           shelters everyone under the same light and should not be swirled
           for the benefit of a few.


           Considering the  fact  that  there  was  no  proper  explanation
           offered by the Department for the  delay  except  mentioning  of
           various dates, according to us,  the  Department  has  miserably
           failed to give any acceptable and cogent reasons  sufficient  to
           condone such a huge delay. Accordingly, the appeals  are  liable
           to be dismissed on the ground of delay.


  3. We further find that in identical circumstances in similar type of case
     which also arose against the award of the Labour Court, upheld  by  the
     High Court this court had refused to condone the  delay  and  dismissed
     the Special Leave Petition on that ground. That was  CC  No.  5368/2013
     titled State of  U.P.  &  Ors.  vs.  Hanuman  which  was  dismissed  on
     11.3.2013. We had summoned the file of that  case  and  find  both  the
     cases are almost similar. Therefore, there  is  no  reason  to  take  a
     different view. We thus, dismiss this SLP on the ground of delay.


                                 …........................................J.
                                                        [K.S. RADHAKRISHNAN]








                                 …........................................J.
                                                                [A.K. SIKRI]


     New Delhi
     January 10, 2014

Sec.376 and Sec.302 I.P.C - Medical report and evidence ruled out the rape and only suggested attempt to rape - Homicidal death proved - who committed the offence left unproved - Sniffer dogs pointed the son of Pw16 - Alleged Eye witness who heard cries of victim with accused never disclose this fact at any time before the police - Last seen theory failed as the victim has gone to purchase some sweet thing after the alleged detention in a house of accused but the keys of house of accused were with the PW 16 as the mother of accused handed over it to her which was returned by her to the accused at 2 P.M. - No explanation for the injuries on accused - Prosecution cast doubts on it's fair investigation - High court rightly acquitted the accused - state appeal was dismissed = State of Gujarat …..Appellant Vs. Ratansingh @ Chinubhai Anopsinh Chauhan …..Respondent = 2014 ( January – Vol-1) Judis.Nic.in/ S.C./ file name =41146

  Sec.376 and Sec.302 I.P.C - Medical report and evidence ruled out the rape and only suggested attempt to rape - Homicidal death proved - who committed the offence left unproved - Sniffer dogs pointed the son of Pw16 - Alleged Eye witness who heard cries of victim with accused never disclose this fact at any time before the police - Last seen theory failed as the victim has gone to purchase some sweet thing after the alleged detention in a house of accused but the keys of house of accused were with the PW 16 as the mother of accused handed over it to her which was returned by her to the accused at 2 P.M. - No explanation for the injuries on accused - Prosecution cast doubts on it's fair investigation - High court rightly acquitted the accused - state appeal was dismissed =

 As per PW16(Shakriben),who is the neighbour  of  the  respondent,  she
had seen the three girls playing in the courtyard of  the  respondent.   She
further stated that the respondent drove  away  Parul  and  Saroj  and  then
caught the victim and pushed her  into  his  house.   Thereafter  she  heard
cries of the victim and then she heard sound of beating.   She  has  further
stated that she went into the house thereafter but  was  threatened  by  the
respondent that if she talked to anyone  in the town, he would kill her  and
her son. She has further stated that  the accused had arrived at about  2.30
p.m. on the day of the incident and he was drunk. He tried to push open  the
rear door of the house.  
The  witness  said  that  mother  of  the  accused,
Divaliben had given the key of the house to her  and,  therefore,  she  gave
the key to the accused. 
The witness has further stated that on the next  day
when mother of the victim was searching the victim, she told  her  that  she
had  not  seen  the  victim  and  she  joined  the  search.  During   cross-
examination, the witness has  admitted  that  she  had  not  stated  in  her
statement before police that the accused had intimidated her. 
She says  that
she does not know whether the victim had gone to purchase Gutka packet.  The
distance between her house and the house of the accused is 25  to  30  feet.
She says that she did not tell her husband or her son  about  the  incident.
She admits that she did not state before police that, at  the  time  of  the
incident, she went into the house after  washing  clothes  and  sat  in  the
house and, at that time, accused had intimidated  her  that,  if  she  tells
anyone in the village, he would kill her and her son. She  admits  that,  on
the day of incident as well as on the next day, when people  were  searching
for the girl, she did not tell anyone about the incident.

“From the above discussion of evidence, it is  clear  that  even
           according to doctor, there was no bleeding injury  on  penis  of
           the accused.  There was  no  bleeding  injury  to  the  deceased
           either. There were no internal injuries in  the  vagina  of  the
           deceased. Against this, if the results of vaginal swab are seen,
           presence of blood and semen is found. How this could  have  been
           found  is  a  question  which  has  remained   unexplained   and
           unanswered. This would cast heavy doubt about the reliability of
           investigation. That apart, the group has  remained  unidentified
           so far as vaginal swab is concerned.

           If evidence of Shakariben is seen and, even as  per  prosecution
           case, the incident occurred in the house of the accused and this
           is tried to be proved through deposition of Shakariben, who says
           that accused pushed the deceased into his house and, thereafter,
           she heard cry of the deceased and then sound of beating. As  per
           the prosecution case, blood stains of the group of the  deceased
           were found in the house of the accused  at  various  places.  No
           trace of semen was found in  the  house  of  the  accused.  But,
           surprisingly, at the place where the dead body was found,  semen
           was found on the ground. That was of the group of  the  accused.
           If the incident occurred in the house, the traces of semen ought
           to have been found in the house and not at the place  where  the
           dead body was found. No motive is indicated for the  accused  to
           murder the deceased immediately after pushing her into the house
           and, if the rape or attempted rape was committed  in  the  house
           followed by alleged murder, there  would  have  been  traces  of
           semen in the house. These factors have remained unexplained  and
           seem to have gone unnoticed by the trial court.”

There is another aspect highlighted by the High Court  which  is  very
pertinent and cannot be ignored.  After the incident when  sniffer  dog  was
brought to the site.  The said dog had tracked to the house of PW16 and  not
the respondent.  
In fact, on this basis the son of  PW  16  was  even  taken
into custody by the police and was detained for 2 days.  Thereafter, he  was
allowed to go inasmuch, as per the police he had not committed any  offence.
 This version has come from the testimony of  PW16  herself. 

 In fact, on this basis the son of  PW  16  was  even  taken
into custody by the police and was detained for 2 days.  Thereafter, he  was
allowed to go inasmuch, as per the police he had not committed any  offence.
 This version has come from the testimony of  PW16  herself.  On  the  other
hand, I.O. has totally denied that son of  PW16  was  ever  detained  for  2
days.  There is no such entry  in  the  daily  diary  as  well.   From  this
evidence  appearing  on  record,  the  High   Court   has   concluded   that
investigation cannot be considered as honest inasmuch as it  would  indicate
to two possibilities, namely:

      (1) The investigating officer did not detain or interrogate the son of
      PW16 for 2 days.  If that is so he failed in his duty when the sniffer
      dog tracked to the house of PW16.

      (2) If I.O. had detained the son of PW16, then  case  diary  does  not
      record the events correctly and he is not telling the truth before the
      Court.



      That apart, it also  speaks  volumes  about  the  reliability  of  the
investigation and evidence collected, more so when no explanation is  coming
forward as to why the son of  PW16  was  released  by  the  police  and  the
respondent arrested.

20.   We, thus, agree with the findings of the High Court that the  evidence
led by the prosecution does not establish a complete chain of  circumstances
to connect the accused with the murder of Komal, the  deceased.   There  are
significant defects and shortcomings in the  investigation;  witnesses  have
come out with contradictory version; and have made significant  improvements
in their versions  in  their  depositions  in  the  Court.   In  a  case  of
circumstantial evidence, it would be unwise  to  record  conviction  on  the
basis of such a scanty, weak and incomplete  evidence.  As  the  prosecution
has not been able to prove the charges  beyond  reasonable  doubt,  agreeing
with the conclusions of the High Court we dismiss the present appeal.

2014 ( January – Vol-1) Judis.Nic.in/ S.C./ file name  =41146                             
 
                                                          [Reportable]

                       IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.403/2007

State of Gujarat                                           …..Appellant

            Vs.

Ratansingh @ Chinubhai Anopsinh Chauhan            …..Respondent



                       J U D G M E N T

A.K.SIKRI,J.

1.    The present appeal is directed against the final  judgment  and  order
dated 14th September 2006 passed by the Hon’ble High  Court  of  Gujarat  in
Criminal Confirmation Case No.9 of 2004 with Criminal  Appeal  No.1915/2004,
setting aside the judgment and order passed by the Ld.  Additional  Sessions
Judge and second Fast Track Court in Sessions Case No.4/2004 convicting  the
respondent under Section 376,302 and 201 IPC for the  offence  of  rape  and
murder of a seven year old girl and punishing him with  sentence  of  death.
The High Court found severe loopholes and shortcomings  in  the  prosecution
story, rendering it unbelievable and thereby  acquitted  the  respondent  in
the aforesaid case.

2.    The prosecution case, in nutshell,  was  that  the  respondent/accused
was the neighbour of the deceased  girl  Komal  aged  7  years  r/o  village
Bhammiya.
On the day of incident i.e.  16.8.2003  the  victim  was  playing
with her  two  friends  viz.  Parul  and  Saroj  in  the  courtyard  of  the
respondent. 
The respondent/accused came to his house between 15.00 to  15.30
hrs. and scolded the girls for playing  there.  Parul  and  Saroj  ran  away
whereas, however, the deceased girl was forcibly caught  by  the  respondent
and pushed her into his house and he shut the door.
Shakriben  Chandrasinh,
a neighbour who was washing clothes, heard the cries  of  victim  which  got
silent after sometimes. 
Thereafter Savitaben mother of  the  deceased  girl,
who returned from work at about 16.00 hrs.  and  not  finding  her  daughter
started searching for the victim along with  Shakriben.  
A  day  after  the
incident, dead body of the victim was recovered from a nearby field  wearing
a white frock with undergarment missing, which  was  later  found  from  the
hedge  falling  between  the  house  of   the   respondent   and   Shakriben
Chandrasinh.
A  complaint  was  lodged  and  FIR  registered  by  Arvindbhai
Khatubhai, the  father of the victim.
The police started  investigation  and
recorded the statements of witnesses. Necessary samples were also  collected
during the investigation and sent to FSL.  The dead  body  of  the  deceased
was sent for the post mortem which was conducted by  Dr.  Shashikant  Nagori
between 16.45 hrs. &  17.45  hrs.  on  17.8.2003.  The  post  mortem  report
mentioned following injuries:-

      *     Abrasion on both thighs, both knees and bruises over the legs.

      *     The injuries found on labia majora had a swelling of 3 x 2  cms.
      on right majora and  abrasion  on  left  majora,  such  injuries  were
      possible in an attempted rape. There was penetration  on  the  private
      parts of the victim girl.

      *     The presence of injuries on left mastoid region, which was  bone
      deep and brain matter had come out of the wound.

      *     There was haematoma  over  whole  skull  on  both  parietal  and
      frontal region and blood was oozing out of the left ear.

      *     There was a depressed fracture of  skull  on  frontal  and  left
      parietal region.

            The doctor opined that the injuries were sufficient in  ordinary
      course of nature to cause death and it was homicidal death.

3.    The respondent was arrested after two days i.e. on  19.8.2003  from  a
nearby village, who had allegedly fled  after  committing  the  offence.  On
search, a suicide note purportedly written by the respondent  was  recovered
from his pocket.  Besides, blood stained clothes  and  blood  group  of  the
deceased was noticed on other articles.  He  was  found  to  have  sustained
injuries on his person, which was recorded in  the  arrest  panchnama.
Upon
disclosure of  the accused, the grinding stone used in  inflicting  injuries
on head of the deceased was recovered from his house.   After  the  recovery
of the stone, a panchnama  of  recovery  of  the  stone  was  drawn  in  the
presence of panch witnesses on 20.8.2003.   
Thereafter  discovery  panchnama
of the articles was drawn which were concealed beneath the  steel  cupboard.
After the completion of investigation, the charge  sheet  was  filed  before
the Ld. Chief Judicial Magistrate, Godhra on  22.8.2003.   After  committal,
the case was registered as Sessions Case No.4 of  2004  and  charge  against
the respondent accused was framed under Sections  376,302  and  201  of  the
IPC. The  respondent  denied  the  charge  and  claimed  to  be  tried.  The
prosecution examined 23 witnesses in support of its case. None was  examined
by the accused in his defence. The statement of the respondent was  recorded
under Section 313 of the Cr.P.C. On 7.10.2004  the  learned  Sessions  Judge
after examining the oral and documentary evidence, returned the  finding  of
guilt and convicted the respondent for the offence of rape and murder.   The
learned Sessions Judge awarded capital punishment for the offence of  murder
u/s 302 and imprisonment for life and fine of Rs.1000/- for the  offence  of
rape u/s 376 and in default to undergo SI for 3 months.
The record  of  the
case was forwarded to the High Court u/s 366 of the Cr.P.C. for approval  of
the death  sentence  awarded  by  the  Sessions  Court.   
The  accused  also
preferred Criminal Appeal No.1915/2004 before  the  High  Court  of  Gujarat
against the judgment and order dated 7.10.2004.

      The Impugned Judgment:

4.    As is clear from the above, the precise charge against the  respondent
was of raping the minor girl Komal and thereafter murdering her.   The  High
Court, on the basis of medical evidence namely  the  post-mortem  report  of
the deceased found that it  was  case  of  homicidal  death.   There  is  no
quarrel about the same and this aspect is not  disputed  by  the  respondent
before us as well.

5.    As far as charge of rape is concerned, the High  Court  observed  that
there  was  no  direct  evidence  and  medical   evidence   was   the   only
circumstantial evidence which  could  be  relied  upon.  
It  discussed  the
evidence of Dr. Nagori to this effect, who had conducted the post mortem  on
the dead body.  
It was found that there was swelling of  3x2  cms  on  right
labia majora and abrasion over left labia majora. 
It  is  also  recorded  in
the postmortem notes that as per  vagina  examination,  it  was  found  that
little finger passed with difficulty and there was no internal  injury.  
The
post mortem notes also indicated abrasions on both thighs,  both  knees  and
bruises over  legs.  
In  his  deposition,  the  doctor  has  deposed,  after
describing the injuries, that  the  injuries  found  on  labia  majora  were
possible in an attempted rape. 
During cross-examination he deposed that,  if
there was penetration of penis in  the  vagina,  there  was  possibility  of
internal  injuries.  He  stated,  in  terms,  that  from  the  post   mortem
examination, in the instant case, there was no penetration of penis  in  the
vagina.

6.    On the basis of aforesaid, the High Court acquitted  that  offence  of
rape was not proved by  the  prosecution  beyond  reasonable  doubt  and  it
could, at the most, be considered an attempted rape.  
The  finding  of  the
trial court recording the conviction for offence of rape under  section  376
of the IPC has, accordingly, been set aside.
It is primarily on the  ground
that even if it is to be accepted that  in  a  case  of  rape  of  a  minor,
complete penetration of penis with emission of semen and  rupture  of  hymen
is not necessarily to be established,  in  the  instant  case,  the  medical
evidence clearly suggests that there was no  penetration  at  all  i.e.  the
factor which influenced the High Court to set aside the conviction based  on
section 376, IPC.

7.    The High Court, thus, proceeded on the basis  that  the  deceased  was
murdered and there was an attempted rape on  her.  
It  then  addressed  the
central issue viz.
whether the respondent could be connected with  the  said
murder and attempted rape.
It was a case  of  circumstantial  evidence,  in the absence of any eye witness.
After discussing  the  evidence,  the  High
Court  found  that  prosecution  had  failed  to  establish  the  chain   of
circumstances could connect the accused with the crime. 
There were  material
contradictions and inconsistencies in the depositions of  various  witnesses
etc. which did not form a complete chain.
The High Court has,  accordingly,
set aside the order of conviction of the trial court  as  unsustainable  and
acquitted the accused of the charges.
It  is,  inter-alia,  held  that  the
evidence led by the prosecution on last seen together  cannot  be  accepted.
It is not only contradictory, inconsistent and improbable, but also suffers from vice of improvements and therefore, it sounds unreliable.  
As  regards
injuries found on chest and back of the person  of  accused  are  concerned,
which the prosecution tried to show as injuries caused with  nail,  possibly
by the deceased, the High Court has discounted this prosecution  version  on
the ground that the Post Mortem note  does  not  indicate  presence  of  any
traces of skin of the accused in the nail of the deceased.
As per  the  High
Court the investigation is not  found  to  be  independent,  trustworthy  or
reliable, the evidence does not establish a complete chain of  circumstances
to connect the accused with the crime.   
There  are  major  defects  in  the
investigations which  render  it  doubtful  when  the  case  is  founded  on
circumstantial evidence.  It, thus, set aside  the  judgment  of  the  Trial
Court on the ground that the conviction cannot be recorded on  such  scanty,
weak and incomplete evidence.



      The Arguments:

8.    The learned counsel for the State argued  that  High  Court  committed
grave  error  in  holding  that  there  was  no  complete   chain   of   the
circumstances connecting the respondent to the  incident.   He  pointed  out
that certain samples of blood, clay etc. were collected from  the  spot  and
FSM report (Ex.54) was obtained therefrom  which  was  duly  proved  in  the
trial court through witness No.20-Chandubhai Nagjibhai Pargi who had  stated
in his deposition that  on  receiving  the  message  from  control  room  on
17.8.2003 he along with FSL Mobile Van had gone to  the  place  of  incident
and collected the following samples:

            -    Clay with blood from the place of incident.

      Clay bearing doubtful spot recovered from the  place  in       between
                 two legs.

           -     Control clay recovered from the place at the distance of 5
                 feet from the dead body.

           -     Clay bearing pan padiki spittle recovered from  the  place
                 at the distance of 7 feet from the dead body.

           -     One red colour knickers bearing spots from the vada behind
                 the house of Chandrasinh Laxmansinh  Chauhan,  situated  in
                 the south direction from the dead body.







      9.    He further drew the attention  of  this  Court  to  post  mortem
 report (Ex.7) containing external examination of the deceased. As  per  the
 said post mortem report, the following aspects were established:

|1.  |Condition of the clothes whether |                             |
|    |wet with water, stained with     |Stained with blood           |
|    |blood, soiled with vomit or      |                             |
|    |foecal matter.                   |                             |
|2.  |Injuries to external genitals,   |Swelling (hemetomal) 3x2 cm  |
|    |indication of purging.           |over Rt.Labia mejora abrasion|
|    |                                 |over lt.labia mejora.        |
|3.  |Surface wounds and injuries their|a.Abrasions over medical     |
|    |natural position, dimensions     |upper of both thighs.        |
|    |(measured) and directions to be  |b.Abrasions over both knee.  |
|    |accurately stated: their probable|c.Bruises over both legs.    |
|    |ages and cause to be noted.      |                             |




10.   He also pointed out that opinion as to the cause or probable cause  of
death recorded by the Medical Officer was “cause of death is shocked due  to
head injury leading to skull injury over brain”.  He also pointed  out  that
cloth of the deceased was stained with blood and there were  abrasions  over
medial upper both thighs, over  both  knees  and  bruises  over  both  legs.
According  to  the  learned  counsel,  this  shows  that  the  deceased  was
subjected        to        sexual        assault        and        murdered.


11.   In order to connect the accused with the said  incident,  the  learned
counsel referred to the testimony of PW12, Saroj who was playing along  with
Parul and deceased on the fateful day, on the courtyard of the residence  of
the accused when the accused reached there and  scolded  these  girls.   His
submission was that there was no cross-examination by the  defence  on  this
aspect and from this testimony it stood proved that the  deceased  was  last
seen with the accused, as PW12 had categorically stated that she  and  Parul
left the place but the deceased remained there.  He further  submitted  that
this was corroborated by  the  neighbour  Shakriben  Chandrasinh  (PW16)  as
well.

12.   In nutshell, the submission of the learned counsel for the  State  was
that the circumstances formed a complete  chain  of  events  connecting  the
crime to the accused inasmuch as: 
(1)  the  victim  was  last  seen  in  the company of  the  accused;  
(2)  certain  samples  were  collected  from  the
residence of the accused including plaster bearing  blood,  blood  taken  on
thread by rubbing from ground floor of  western  wall,  support  (datto)  of
wooden plate bearing blood spots, pieces  of  paper  affixed  on  the  metal
barrel, bearing blood spots etc.; the blood on the aforesaid  as  found  was
of “B” Group which is the blood group of the deceased; 
(3)clay  from  thighs with semen from the deceased was collected and semen was found to be of  “O” Group which is  that  of  the  accused;  
(4)  the  medical  evidence,  which clearly nails the respondent and there could be no other  person  who  would have committed this crime.

      Our Analysis:

13.   Since it is a case of  circumstantial  evidence  and  the  prosecution
case starts with the theory of last seen, the first place is as  to
whether
the prosecution has been able to conclusively and  beyond  reasonable  doubt
prove that the deceased was last seen in the company of the respondent.
For
this  purpose, as already noted above, the prosecution has relied  upon  the
testimonies of PW12,PW16,PW17 and PW18.
The paramount  question  is  as  to
whether testimonies of these witnesses is  reliable.  
The  High  Court  has
found certain inherent contradictions in the depositions  of  the  aforesaid
witnesses on the basis of which it has come to the  conclusion  that  it  is
difficult to accept their version, which is  even  contrary  to  each  other
about the details of the events.  No doubt PW12, Sarojben was  playing  with
the deceased and Parul on the grounds of the residence of  the  accused  and
when  respondent  reached  the  spot,  he  asked  them  to  left.
  However,
thereafter 
whether the deceased remained there  and  was  not  seen  at  all
thereafter till her dead body was found , is a pertinent question.   
As  per
the prosecution version itself the deceased had left that place;  elbeit  at
the asking of the respondent who had sent her  to  the  market  to  purchase
Vimal Gutka and she returned back to the  respondent  after  purchasing  the
said Gutka, to hand it over to the  deceased.  
Whether  it  is  conclusively
proved that she returned back to the  respondent?
Here,  according  to  the
High Court, there are various  contradictions  in  the  depositions  of  the
witnesses.
As per PW7, the shopkeeper from where the deceased had  gone  to
purchase Gutka, the deceased had come to his shop on that date  at  about  3
p.m. She purchased eatable ( and not Gutka) for Rupee one and then she  went
away.
During cross-examination, he stated that it  had  not  happened  that
the victim had come to his shop to purchase Vimal Gutka.  
So  according  to
him deceased had come  to  his  shop  to  purchase  some  eatable.
He  also
admitted that in his statement before the police on  19th  August  2003,  he
had not stated that the deceased had come to his shop to  purchase  eatable.
On specific question put to him in the cross-examination as to  why  he  did
not tell the police about  the  victim’s  visit  to  his  shop  to  purchase
eatable, he did not give any specific reply.

14.   As per PW16(Shakriben),who is the neighbour  of  the  respondent,  she
had seen the three girls playing in the courtyard of  the  respondent.   She
further stated that the respondent drove  away  Parul  and  Saroj  and  then
caught the victim and pushed her  into  his  house.   Thereafter  she  heard
cries of the victim and then she heard sound of beating.   She  has  further
stated that she went into the house thereafter but  was  threatened  by  the
respondent that if she talked to anyone  in the town, he would kill her  and
her son. She has further stated that  the accused had arrived at about  2.30
p.m. on the day of the incident and he was drunk. He tried to push open  the
rear door of the house.
The  witness  said  that  mother  of  the  accused,
Divaliben had given the key of the house to her  and,  therefore,  she  gave
the key to the accused. 
The witness has further stated that on the next  day
when mother of the victim was searching the victim, she told  her  that  she
had  not  seen  the  victim  and  she  joined  the  search.  During   cross-
examination, the witness has  admitted  that  she  had  not  stated  in  her
statement before police that the accused had intimidated her.
She says  that
she does not know whether the victim had gone to purchase Gutka packet.  The
distance between her house and the house of the accused is 25  to  30  feet.
She says that she did not tell her husband or her son  about  the  incident.
She admits that she did not state before police that, at  the  time  of  the
incident, she went into the house after  washing  clothes  and  sat  in  the
house and, at that time, accused had intimidated  her  that,  if  she  tells
anyone in the village, he would kill her and her son. She  admits  that,  on
the day of incident as well as on the next day, when people  were  searching
for the girl, she did not tell anyone about the incident.

15.   Apart from the aforesaid omissions on the part of  PW16  and  PW17  in
not mentioning to the police when they gave  their  statements,  immediately
after the incident, the High Court has also analyzed their statements  along
with deposition of  PW12  and  found  them  to  be  inconsistent  and  self-
contradictory in the following manner:

            “From depositions of these three witnesses, the prosecution  has
          tried to establish the circumstances of the  accused  having  been
          seen in company  of  the  deceased  last.  But  scrutiny  of  this
          evidence leads us to negative  this  aspect.  According  to  PW12-
          Saroj, she was playing with the victim and Parul.  Accused arrived
          around 3O’ clock and shouted  “Ladidiyo”  (meaning  young  girls).
          Therefore, she and Parul ran away and the victim was left  behind.
          She says that accused sent the victim  to  purchase  a  packet  of
          Vimal. She also says that, thereafter, she went home and was doing
          lesson. She saw the victim going with a packet of Vimal to give it
          to the accused. Therefore, necessarily, if her  say  is  taken  at
          face value, then also the victim was seen going to  the  house  of
          accused with a packet of Vimal and  if  she  did  factually  reach
          there, at that point of time, neither Saroj nor Parul was present.

            Against the above situation emerging from deposition  of  Saroj,
          if deposition of Shakariben (Ex.49) is seen, she  says  that  when
          Saroj, the victim and Parul were playing in the courtyard  of  the
          accused, the accused arrived and drove away Parul  and  Saroj  and
          caught  hold  of  the  victim  and  pushed  her  into  the  house,
          whereafter she heard cry of the victim and then sound of  beating,
          meaning thereby that when the deceased was taken into  the  house,
          that was the last point of time when she was seen  in  company  of
          the accused and, at that point of time, both Saroj and Parul  were
          present, which is just contrary to what Saroj  says.  Viewed  from
          another angle, Shakariben does not speak of any even taking  place
          before the victim was pushed into the  house  and  thereafter  the
          incident has occurred, as  against  the  say  of  Saroj  that  the
          accused sent the victim to get a  packet  of  Vimal.  Necessarily,
          therefore, what Shakariben saw was not the last point of time when
          the victim and the accused were together. The victim was  seen  by
          Saroj at a later point of  time  and  also  by  witness-Himatbhai.
          Parul has not been examined  by  the  prosecution  as  a  witness.
          Therefore, the evidence regarding the accused seen last in company
          of the deceased, as led by the prosecution,  is  inconsistent  and
          self-contradictory.

            That apart, the conduct of PW16 seems to be unnatural  and  thus
          unworthy of reliance.  The High Court has rightly observed that it
          does not inspire  confidence  for  several  reasons,  namely:  (1)
          though she claims to have the  witness  the  accused  pushing  the
          victim into the house and then hearing her cry followed  by  sound
          of beating, she did not take any steps to rescue her. (2) She  did
          not even tell about this incident to anyone, including her husband
          and son till 19th August 2003 when her statement was recorded. (3)
          Even in her statement to the police she has omitted to  state  the
          aforesaid  purported facts.(4) On the next day  of  the  incident,
          when the search for the victim was on, she still  kept  quite  and
          did not disclose the incident to anybody.   Strangely,  she  joins
          the group searching for the victim.(5) There is no explanation  as
          to when and why the respondent could have intimidated her.  As per
          the sequence of events narrated by her, the respondent  came;  she
          gave him the key of his house; the respondent went  to  his  house
          and shouted at girls; the two other girls went away and respondent
          pushed the victim into house; and thereafter she (the witness went
          to her house). If these sequences are to be  seen,  there  was  no
          occasion for the accused to intimidate her.

            As far as evidence of PW12,Saroj is concerned, she  stated  that
          she had lastly seen the deceased going with packet of  Vimal.  She
          simply presumed that the victim was going to give the said  packet
          to the accused. However, she did not see the deceased  going  with
          packet of Vimal Gutka to the respondent as she specifically stated
          that after seeing the deceased carrying the packet  of  Vimal  she
          went home and started doing her lesson.  There is no  evidence  to
          show that the deceased reached the house of the  accused  and  met
          him.  In fact, there is some contradiction even on the purchase of
          the item inasmuch as  as  per  PW17  the  deceased  had  purchased
          eatable whereas PW-12 says that she was carrying Vimal Gutka. PW17
          has specifically said that the deceased had  not  purchased  Vimal
          Gutka from him. From the aforesaid testimonies of Saroj Shakariben
          the High Court has also observed that from both the evidence taken
          together, prosecution story cannot be believed inasmuch as if  the
          situation is examined from a different angle, if what  Saroj  says
          had happened, then what Shakariben says could not  have  happened,
          because according to Shakariben, on arrival, the  accused  shouted
          at the girls and  drove  away  Parul  and  Saroj  and  pushed  the
          deceased into the house and, if what Shakariben says  is  correct,
          what Saroj says could not have happened. The doubt assumes greater
          strength because of certain circumstances which would be discussed
          in the paragraphs to follow.

            Examined from any angle, the evidence led by the prosecution  on
          last seen together aspect cannot  be  accepted.  It  is  not  only
          contradictory, inconsistent and improbable, but  it  also  suffers
          from vice  of  improvements  and,  therefore,  to  us,  it  sounds
          unreliable. The case is founded on circumstantial  evidence.  This
          is one of the major circumstances pressed by the  prosecution.  We
          also find that the investigation is not carried out  properly  and
          does not inspire confidence. The evidence on  last  seen  together
          aspect, therefore, cannot be accepted as a link in  the  chain  of
          circumstances leading to exclusive  hypothesis  of  guilt  of  the
          accused.”




16.   We are in agreement with the aforesaid analysis  of  the  evidence  by
the High Court and, therefore, hold that prosecution has not  been  able  to
establish, with clinching evidence that the deceased was seen lastly in  the
company of the accused.

17.   Even the medical evidence on which strong reliance was placed  by  the
learned counsel for the State, is of no help to  arrive  at  the  conclusion
that guilt of the respondent stands proved  beyond  reasonable  doubt.  When
the respondent was arrested on 19th August  2003  a  Panchnama  (Ex.14)  was
drawn.  In that it is recorded that the  accused  had  abrasions  on  chest,
back and shoulder caused by nail and also that there  was  swelling  on  his
penis and swelling on skin with abrasion.   Immediately  after  his  arrest,
the respondent was sent for medical check up.  As  per  the  medical  report
(Ex.17) there were injuries on chest and back  which  is  described  by  the
doctor as linear abrasions. There were no foreign particles  in  his  nails.
The doctor also admitted in his cross-examination that  he  did  not  notice
any  injury  on  the  penis  of  the   accused.    Therefore,   this   shows
contradiction between the recording of medical condition  in  the  Panchnama
and the medical examination conducted by the  doctor,  in  so  far  as  they
relate to the injury on  the  penis  of  the  respondent.   High  Court  has
rightly observed that the Panchnama has recorded abrasions and therefore  it
could not have disappeared within such a short time.  It reflects  adversely
on the prosecution case.  As regards injuries found on  chest  and  back  of
the respondent, they are tried to be shown as injuries caused with  nail  of
the deceased. However, the post mortem note does not  indicate  presence  of
any traces of skin  of  the  accused  in  nail  of  the  deceased.  Further,
comments of the High Court  in  the  impugned  judgment  about  the  medical
evidence, pertinent for our purposes, are reproduced below  as  we  entirely
agree with the said analysis:

           “From the above discussion of evidence, it is  clear  that  even
           according to doctor, there was no bleeding injury  on  penis  of
           the accused.  There was  no  bleeding  injury  to  the  deceased
           either. There were no internal injuries in  the  vagina  of  the
           deceased. Against this, if the results of vaginal swab are seen,
           presence of blood and semen is found. How this could  have  been
           found  is  a  question  which  has  remained   unexplained   and
           unanswered. This would cast heavy doubt about the reliability of
           investigation. That apart, the group has  remained  unidentified
           so far as vaginal swab is concerned.

           If evidence of Shakariben is seen and, even as  per  prosecution
           case, the incident occurred in the house of the accused and this
           is tried to be proved through deposition of Shakariben, who says
           that accused pushed the deceased into his house and, thereafter,
           she heard cry of the deceased and then sound of beating. As  per
           the prosecution case, blood stains of the group of the  deceased
           were found in the house of the accused  at  various  places.  No
           trace of semen was found in  the  house  of  the  accused.  But,
           surprisingly, at the place where the dead body was found,  semen
           was found on the ground. That was of the group of  the  accused.
           If the incident occurred in the house, the traces of semen ought
           to have been found in the house and not at the place  where  the
           dead body was found. No motive is indicated for the  accused  to
           murder the deceased immediately after pushing her into the house
           and, if the rape or attempted rape was committed  in  the  house
           followed by alleged murder, there  would  have  been  traces  of
           semen in the house. These factors have remained unexplained  and
           seem to have gone unnoticed by the trial court.”




18.   The High Court has also       expressed  its  doubts  on  recovery  of
grinding stone from the house of the respondent  which  was  allegedly  used
for committing murder of the deceased.  It is pointed out by the High  Court
that evidence suggests that the officer of the  FSL  was  summoned  on  19th
August 2003 who inspected the place of incident and instructed  the  Inquiry
Officer to recover the stone which was, accordingly, recovered.   It  is  so
stated in his report as  well  as  in  his  deposition.  Thus,  as  per  the
deposition of the officer of FSL, stone was recovered on 19th  August  2003.
As against this, as per discovery Panchnama drawn on 23rd  August  2003  the
said grinding stone  was  recovered  from  beneath  steel  cupboard  at  the
instance of the respondent.  How this recovery could  have  taken  place  if
the stone had already been recovered on 19th August 2003.  This casts  doubt
about the aforesaid documents and the discovery of stone itself.

19.   There is another aspect highlighted by the High Court  which  is  very
pertinent and cannot be ignored.  After the incident when  sniffer  dog  was
brought to the site.  The said dog had tracked to the house of PW16 and  not
the respondent.
In fact, on this basis the son of  PW  16  was  even  taken
into custody by the police and was detained for 2 days.  Thereafter, he  was
allowed to go inasmuch, as per the police he had not committed any  offence.
 This version has come from the testimony of  PW16  herself.  On  the  other
hand, I.O. has totally denied that son of  PW16  was  ever  detained  for  2
days.  There is no such entry  in  the  daily  diary  as  well.   From  this
evidence  appearing  on  record,  the  High   Court   has   concluded   that
investigation cannot be considered as honest inasmuch as it  would  indicate
to two possibilities, namely:

      (1) The investigating officer did not detain or interrogate the son of
      PW16 for 2 days.  If that is so he failed in his duty when the sniffer
      dog tracked to the house of PW16.

      (2) If I.O. had detained the son of PW16, then  case  diary  does  not
      record the events correctly and he is not telling the truth before the
      Court.



      That apart, it also  speaks  volumes  about  the  reliability  of  the
investigation and evidence collected, more so when no explanation is  coming
forward as to why the son of  PW16  was  released  by  the  police  and  the
respondent arrested.

20.   We, thus, agree with the findings of the High Court that the  evidence
led by the prosecution does not establish a complete chain of  circumstances
to connect the accused with the murder of Komal, the  deceased.   There  are
significant defects and shortcomings in the  investigation;  witnesses  have
come out with contradictory version; and have made significant  improvements
in their versions  in  their  depositions  in  the  Court.   In  a  case  of
circumstantial evidence, it would be unwise  to  record  conviction  on  the
basis of such a scanty, weak and incomplete  evidence.  As  the  prosecution
has not been able to prove the charges  beyond  reasonable  doubt,  agreeing
with the conclusions of the High Court we dismiss the present appeal.



                                             ………………………………….J.
                                                      (K.S.Radhakrishnan)



                                             ………………………………..J.

(A.K.Sikri)
New Delhi,
January10, 2014