STAILA SAYYED Vs. STATE

JUDGEMENT

(1.) THESE appeals challenge the judgment of the learned Additional sessions Judge (hereinafter referred to as the "trial court") dated 13th february 2004 and 19th February 2004 in Session Case No. 54/2001 arising out of the FIR No. 174/2000 registered at Police Station Vasant Vihar in respect of offences under Sections 395/396/376/411/402 read with Section 120-B of the Indian Penal Code (hereinafter referred to as "ipc") and Section 25/54/59 of the Arms Act. By the impugned judgment the trial court convicted all the six accused to undergo imprisonment for life and fine. The case of the prosecution is as follows:

(2.) IN our view, the above reasoning of the trial court, to say the least, is unsatisfactory. The learned counsel for the accused having made a significant plea that the chance prints were not compared with the accused's finger prints, such a plea has been rejected in an absolutely inexplicable manner while holding that this plea could not succeed as the finger prints of the accused were not taken for comparison, to show whether the prints were those of the deceased. The trial court judgment on this ground alone deserves to be set aside because if the prosecution on whom the burden of proof lay, had chosen not to take finger prints of the accused, it is evident that the non-taking of the finger prints of the accused and non comparing of the finger prints of the accused with the chance prints lifted from the spot leaves this court with no option but to conclude that the prosecution was wary of comparison of finger prints lifted from the spot of this incident with those of the accused. The obvious reason is that the prints may not have matched. We cannot also not lose sight of the fact that the entire case is based on the circumstantial evidence of the recovery resulting from the disclosure statements of the accused persons. In light of this, this scientific evidence attains crucial importance and the prosecution has been wholly unable to explain why the fingerprints of the accused were not taken and compared with the prints lifted from the spot of the incident. Similarly, the prosecution's own case was that the deceased was raped and semen sample lifted from her body by taking a vaginal swab. Even though the semen samples of the accused were taken, they were not compared with the vaginal swab. This vital discrepancy which goes to the root of the prosecution case has been totally ignored by the trial court and vitiates the judgment. In our view, these two basic lacunae baled on non utilization of scientific evidence to establish the presence and participation of the accused goes to the root of the prosecution case and leaves this court with no other option but to conclude that the prosecution was conscious that the finger prints on the spot and vaginal swab of the deceased if compared to the finger prints and semen of the accused would not have matched. The trial court has unfortunately glossed over these two circumstances, resulting in a gross miscarriage of justice.

(3.) THE next plea raised by the learned counsel for the accused was that no public person was joined at the time of arrest of the accused and all the witnesses to the recovery are police officials. The reasoning of the trial court even on this issue indeed shows little regard to objective assessment of the prosecution evidence led before it. The plea that the police witnesses could not be relied upon is indeed based on the position of law laid down by the hon'ble Supreme Court in the judgment discussed hereinafter. The Apex court is of the view that such recoveries "do not inspire confidence" and had ordered for acquittal in the case of Sanspal Singh v. State of Delhi, (1998)2 SCC 371. It was observed by the Hon'ble Supreme Court in this case that: