Full Text
HIGH COURT OF DELHI
Date of reserving
JUDGMENT
Date of Decision: 22nd July, 2026 IN THE MATTER OF:
RAM CHANDER @ CHHOTU .....Appellant
Through: Mr. Hans Raj Singh and Mr. Gaurav Nagar, Advs.
Through: Mr. Nawal Kishore Jha, APP for State with Insp. Shailender Kumar and SI
Sonu Kumar, PS Okhla Industrial Area.
Ms. Astha, Adv. (DHCLSC) with Ms. Megha Singh, Adv. for prosecutrix with prosecutrix in person.
1. William Shakespeare one of the world‟s most famous playwright in his play Romeo and Juliet wrote, “what is in name? That which we call a rose by any other name would smell as sweet.”
2. More or less similar sentiments echoed on the Indian soil in the words of 15th Century Indian mystique poet and saint Kabirdas when he said “जाति न पूछो साधु की, पूछ लीतजये ज्ञान। मोल करो िरवार का, पडा रहन दो म्यान॥”. In English, it would go as “Don‟t ask about the saint‟s caste, ask about his knowledge instead. Judge a sword by its own worth, not by the scabbard it rests in”, so to say that it is about not judging the people by external things like background, caste, looks or appearance, respects someone for their wisdom, character and ability. In other words, do not judge the book by its cover and do not judge the persons by the names rather look at what they do, not what they are called.
3. Had it been so that the names would have determined the personality, then every Ramchandra in India would have been upholder of values and would have been Maryadapurshottam. All this goes on to show that the names, however, fancy, ideal or meaningful they are, it is not the name but the person who matters. It had been a common practice in the north heartland of India and to some extent even now to name children as „RAM‟ or invariably the first part of the name would contain Ram, as in Islam it is invariably found that „Mohammad‟ comes before any other part of the name of a score of Muslim persons. The idea and expectation in naming kids with such names is to expect them to be like their names. It can be seen that in every religion there is a tendency of naming the children by deriving from the God, Godly or Saintly figures from their respective religious and mythology texts and no religion is an expectation to this. But names do not shape the personality, person, conduct and behaviour etc.
4. In these circumstances, philosophy of „Karmyog‟ given by Lord Krishna in GITA seems more near, close and practical, which emphasize on the deeds (Karma) which are of utmost importance irrespective of the name or any other thing. So any Ram Chander in this world may not have all those virtues which Lord Rama of Satyug had and upheld. The present Appellant Ram Chander is no exception to what goes on in Kalyug irrespective of Name.
5. The indispensible facts against the backdrop of which the the instant appeal emerged are as below. A young girl of about 13 years of age went missing from her house and trepidated by the long absence, the mother of the girl lodged a complaint on 06.04.2006 suspecting that she has been kidnapped by someone inasmuch as the child was missing from 04.04.2006 and could not be tracked or traced down till 06.04.2006. In fact the elder sister of the girl went to the local police post on that very day when the child went missing but no FIR was registered, rather and entry in Daily Dairy was made on 04.04.2006.
6. Based upon the said complaint (Ex. PW-2/A) made by the mother of the child on 06.04.2006 the FIR No. 264/2006 under Section 363 of the Indian Penal Code, 1860 (IPC) was registered by the Police Station Okhla Industrial Area, New Delhi.
7. The efforts put in by the police officials could not bear any fruit. However, the breakthrough came in the case on 09.04.2006 when the brother of the missing girl and her uncle came to the police post and informed the Investigating Officer ASI Shri Ram that they came to know about the whereabouts of victim / prosecutrix and the Appellant herein that they are staying somewhere in Madangir area of South Delhi.
8. A raid was proposed to be conducted accordingly. The team consisting of the brother and uncle of the prosecutrix, together with Constable Brij Mohan and the Investigating Officer went out in the area of Madangir. They, after some time, spotted the prosecutrix and the Appellant coming from the side of Khanpur, while the raiding team was present at the Madangir bus stand. On the pointing out and identification of the brother and the uncle of the prosecturix, both were apprehended.
9. The requisite proceedings of recovery, recording of statement, medical examination of the prosecutrix and the Appellant at AIIMS etc. were carried out. On conclusion of the investigation, a chargesheet was filed and in view of what has been stated by the prosecutrix in her statement under Section 164 (Ex. PW-12/A), coupled with the MLC and the FSL results, Section 376 IPC was added in the chargesheet.
10. To the charge framed under Section 363 and 376 IPC, the Appellant pleaded not guilty. He was, ultimately, held responsible and convicted upon the testimony of 15 prosecution witnesses examined in this context. That too after taking into account his explanation, under Section 313 Cr.P.C. and the submissions and contentions raised on behalf of the Appellant. The learned Trial Court did not find the explanations and submissions potent enough to acquit the Appellant. Through the impugned judgment of conviction dated 29.08.2008, the Appellant was held guilty, convicted and sentenced as detailed below:
┌─────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ SL. No. Section Sentence Fine │ ├─────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. 376(1) IPC 07 years Rs 300/- (in default of │ │ Rigorous which to undergo │ │ Imprisonment Simple Imprisonment │ │ (RI) (SI) for 10 days) │ │ 2. 363 IPC 01 year Simple Rs 200/- (in default of │ │ Imprisonment which to undergo │ │ (SI) Simple Imprisonment │ │ (SI) for 10 days) │ │ Signature Not Verified │ │ CRL.A. 925/2008 Ram Chander @ Chhotu vs. State Page 4 of 15 │ │ Signed By:PRIYA │ └─────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
20. In such circumstances, if the prosecutrix was not a willing party or was not under some kind of force or coercion then she had all the reasons to raise alarm and save herself. What made her keep quite is anybody‟s guess as it is not that the Appellant had threatened her with any harm or with any weapon. This dents the prosecution‟s case to some extent especially when the counsel for the Appellant is able to show that the prosecutrix was more than 18 years of age.
21. Section 361 IPC which defines kidnapping is reproduced herein below for ready reference:
22. The bare reading of Section 361 which defines kidnapping from the lawful guardianship clearly indicates that in case of a female the age should be 18 years or below. In the instant case it has been brought on record that the victim was 18.[4] years of age with the reading of margin of error in favour of the Accused / Appellant. Thus, this takes away the case from the ambit of Section 361 IPC. This is all the more evident from the fact that the act of the Appellant cannot be put in the frame of „Takes Away‟ or „entices any minor‟. By taking away one is supposed to do something which may vitiate or affect the willingness of the persons so taken away.
23. Although the victim / prosecutrix herein has deposed that on her refusal to accompany the Appellant, he forcibly made her to sit in a TSR, this in itself, on the face of it, does not appear to reason, logic and the circumstances existing at the time of the so-called forcible taking away by the Appellant and the post incident conduct and circumstances. The other aspect is that the victim might have been enticed away in some manner. In the instant case the enticement does not seems to be there in view of the categorical statement made by the prosecutrix that she was in a way forcibly, made to sit in the TSR. It is, thus, to be ascertained as to whether the act of the Appellant fits into the definition of „Taking Away‟ the prosecutrix.
24. If the testimony of the victim / prosecutrix is taken into account in totality then it is evident that no element of force was there and if at all some sort of force was there, the same did not remain constantly present as the prosecutrix had ample opportunities and occasions to frustrate the act of the Appellant if it was against her will or that she had either not consented or acquiesced to it or that she was not a willing party.
25. As noted herein above also that the prosecutrix herself has admitted in her cross-examination that she was taken to Kalkaji Temple and it was occasion of „Navaratri‟, when the temple was full of people. She was taken in a public transport amidst the public gaze, police presence can very well be visualized at the temple at that particular point of time. In these circumstances if the victim was being moved or taken away against her will or without her consent then she should have raised alarm and attracted the attention of the people so as to save herself from the clutches of the Appellant especially when she had ample opportunities and was not under any kind of threat etc. There is no answer as to why no such attempt was made by the prosecutrix as she admits categorically in her cross-examination that she did not complain to anyone nor raised alarm qua her so-called forcible kidnapping. In such circumstances, the offence under Section 363 for which the Appellant has been charged and punished seems to be not made out.
26. The second set of allegations/charge and the conviction of the Appellant is under Section 376 IPC. The evidence on record reflects that the Appellant and the prosecutrix lived together for 2-3 days and during those days, as per the version of the prosecutrix she was raped by the Appellant. The MLC Ex. PW-8/A of the prosecutrix reflects in the alleged history given by her, that she was forcibly taken away by the Appellant who raped her two times on 07.04.2006.
27. The hymen was found absent as mentioned in the MLC Ex. PW-8/A. No external injuries were found by the Doctor. Nevertheless it does indicate that sexual activity took place but that cannot be conclusive evidence. The Doctor had prepared certain slides of the vaginal smear which were handed over to the police official for forensic examination. As per the endorsement on MLC Ex. PW-8/A the clothes of the prosecutrix were given to a woman in whose house the victim was discovered. The slides so taken were sent to FSL, where those were subjected to the analysis from the forensic stand point. The clothes (undergarment) of the prosecutrix was seized through seizure memo Ex. PW-11/C on 09.04.2006 and was also sent for forensic examination and analysis. Apart from the clothes of Appellant and his blood sample through seizure memo Ex. PW11/A.
28. The FSL report Ex. PX reflects presence of semen on one underwear seized, presumably of the victim and the other may also be belonging to the prosecutrix as it is not clear. The blood in gauze was also taken but then there is no conclusive opinion about the blood group so as to connect the Appellant with the semen traces which were found on the underwear of the prosecutrix. However, the circumstances strongly points out to the fact that it could not have been semen of anybody else except the Appellant, for the simple reason that it was the Appellant who took away the victim on 04.04.2006 and since then, as per the material available on record, the prosecutrix was in the care, custody and control of the Appellant. They were apprehended on 09.04.2006 when they were seen coming together from the side of Khanpur thus in view of what has been deposed by the prosecutrix in her testimony there is no possibility of anybody else having been responsible for the act and presence of the human semen. The position with regard to the slides of the vaginal smear is unclear as no traces of human semen were noticed.
29. The evidence on record indicates only one possibility when taken into consideration with the medical record FSL result and the testimony of the victim that it could not be anybody else except the Appellant whose semen it was, although there is no conclusive scientific evidence in this context but the circumstantial evidence is indicative and points out towards this conclusion, may not be exclusively only but very strongly. However, two aspects are there which put a question mark on the report of Forensic Science Laboratory. The MLC Ex. PW-8/A has an endorsement in the hands of the Doctor concerned that clothes of the prosecutrix were handed over to a woman in whose house she i.e. the prosecutrix was discovered. In these circumstances, where from and which clothes were handed over to the Doctor and what are the clothes which were sent for the FSL examination.
30. The FSL result Ex. PX also becomes questionable in view of the cuttings made in the report which have not been authenticated by anyone. The impact of those cuttings may or may not be affecting the case vitally but then it definitely vitiates the FSL result and makes it vulnerable. In such circumstances, the FSL result cannot be fully relied upon.
31. Another dimension to the case of the prosecution is added by the fact that the police officials have not brought the correct facts on record inasmuch as in terms of the endorsement made by the Doctor, which definitely stands out from what was told by the prosecutrix, that she was discovered at a house and not at the bus stop. Whereas, the brother and uncle of the prosecutrix and the police officials have deposed that the prosecutrix was recovered while she was coming along with Appellant from the side of Khanpur towards the bus stop of Madangir where the police team along with the brother and uncle of the prosecutrix were present. Why these facts have been brought differently as both these facts cannot be true. The case of the prosecution gets a rubbing on this count and no palpable factors are forthcoming along any cogent explanation.
32. The conduct of the prosecutrix however, appears to be questionable as no attempt whatsoever was made by her at any point of time to avoid the situation in which she landed up right from the inception. She had ample occasions and opportunities to not to go with the Appellant either forcibly or voluntarily in the TSR if she was not willing. If at all she was taken under some kind of enticement to Kalkaji Temple on a Navaratri day, and she was not a willing party she, as any ordinary person, should have raised alarm. No such attempt was made by her and then again when she was taken away from one place to the another in some sort of public transport, then also she has chosen not to protest or raise alarm. She according to her own testimony, was raped by the Appellant but still she kept moving with him from one house to another without attempting to escape or raise alarm or by doing anything in order to save herself.
33. She was spotted coming normally from the side of Khanpur to the Madangir bus stand along with the Appellant in broad daylight as if she was accompanying him and not being dragged or taken away or forced to move with the Appellant. Again no attempt to save herself, raise alarm or anything was there. Why nothing of that sort was resorted to by the prosecutrix is the riddle about which no appropriate answer is forthcoming. All these give reasons to put a question mark on the credibility and veracity of the versions of prosecutrix and in turn to the prosecution‟s case.
34. As noted herein-before, the circumstances unequivocally points out towards the complicity of the Appellant in the act of committing the rape, but then element of doubt cannot be ignored which too, has sneaked in the absence of any conclusive scientific evidence connecting the Appellant with the act of rape. This primarily stems from the fact that the kind of resistance, protest etc. which should have been there, in the case when the prosecutrix was not a willing party which is not there. It is not the case of the prosecution, as nothing has been deposed by the prosecutrix, that she was put under some kind of potent threat of harm by the Appellant, which prevented her from raising alarm, protesting or trying to run away and save herself. There is no reference of any potential physical harm, threat oral or physical or use of any arm or weapon to extend and make the threat potent enough.
35. As per the Ossification test the prosecutrix could be anywhere between 14 to 16.[4] and if the testimony of the PW-7 Dr. Anindita Sinha is taken into consideration then margin of error of two years is an acceptable norm recognized by both the streams, that is, medical and legal. This brings the age of the prosecutrix to 18.[4] years, as the margin of error is to be read in favour of the Accused / Appellant. The relevant part of the testimony of PW-7 reads as below:- “It is correct that there is a error of two years either side while determining age.”
36. In these circumstances, how far the Appellant can be held responsible for doing something against the will of the prosecutrix forcibly or otherwise. This becomes all the more relevant when the conduct of the prosecutrix at the appellate stage is also taken into consideration apart from her shaky evidence full of improbabilities. She has appeared more than once before the Appellate Court, identified by the IO where she has repeatedly stated that she does not want any action against the Appellant as she had herself accompanied him and that the Appellant had no fault.
37. Thus, taking into account the entire gamut of facts and circumstances it appears unsafe to act upon the testimony of such a witness, which has not been conclusively supported by scientific and forensic evidence leaving scope for error. Additionally, on the scale of probabilities and improbabilities, also prosecutrix‟s version is highly improbable and do not appeal to reason and logic in a given set of facts and circumstances. As such, the Appellant is given the benefit of doubt.
38. As a result, the appeal is allowed. Bail bonds stand discharged.
39. Copy of the judgment be transmitted to the learned Trial Court and the Prison Authorities for information and necessary compliance.
VIMAL KUMAR YADAV, J JULY 22, 2026/hk/NY