Winterfell High Court, ESSOS.

Amy v. Rex on 3rd May 2004

IN THE HIGH COURT OF WINTERFELL

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 123 of 2004

BETWEEN:
AMY GONSLAVES ………………
APPELLANT

-v-

REX GONSLAVES …...….………..

RESPONDENT

CRIMINAL APPEAL UNDER SEC. 372 OF CODE OF CRIMINAL PROCEDURE, 1973

JUDGEMENT:
D.K.S. CHANDRACHUD, J.
1. ‘Rape’ is the dark reality in today’s society that devastates a women’s soul, shatters her self-
respect and for a few, purges their hope to live. Its shakes the insight of a woman who once was
a ‘happy person’, and had no clue of being victim of the said horrifying and nightmarish
encounters where the daughter had been raped by none else but her own progenitor. This case
is of rape and murder of Appellant’s daughter named Missy. Appellant Amy was married to a
man named Rex. During the subsistence of the marriage, Amy was treated with cruelty, both
mental and physical by Rex. He even concealed that he had already been married and divorced
once before. However, for the sake of her children, Amy never raised her voice.
2. After their marriage, at the instance of Rex, the couple migrated to another country called
Monte Fisher, wherein Amy gave birth to two children, a boy named Georgie and a girl named
Missy. Being the head of the family, Rex dumped Amy and his minor daughter Missy, who was
barely a year old then, in Essos. Rex fled with Georgie to a city called Mure in Riverrun.
3. In 2004, Rex returned to Essos on the pretext of business and abducted his daughter Missy,
raping and brutally murdering her in sheer anger. Worried for her daughter’s whereabouts, Amy
forthwith preferred a Writ Petition (Habeas Corpus) before the High Court of Winterfell to get
back the custody of her minor daughter, only to find out about the cold blooded murder of
Missy.
4. Upon registration of FIR, the Investigating Officer (“IO”) arrested Rex who is the accused for
committing the offences of kidnapping, raping and murdering Missy and concealing her body.
The body of victim was thereafter sent for post-mortem, after collection of vaginal swabs,
photographs, blood, DNA, hair/nail/semen samples.1 The Medical Board opined the cause of
death could be hemorrhage and shock due to head injury.
5. Subsequently, upon filing of chargesheet, charges were framed under the concerned Sections of
the Essos Penal Code, 1860 and Protection of Children against Sexual Offences Act, Essos,
1870 against Rex based on circumstantial evidence. The Prosecution attempted to rely upon the
un-rebutted testimonies of its witnesses namely Amy, the Doctor and the IO, corroborated by
the circumstantial evidence.
6. After assessment of evidence on record and hearing learned counsel for the parties, learned
Trial Court (Ld. Sessions Judge) acquitted Rex since it was of the opinion that the prosecution
could not establish his guilt which is a believed to be the impugned order due to absence of any
direct evidence.
7. Aggrieved by the order, the appellant has filed the instant appeal on the following grounds:-
i. That there was sufficient evidence on record to point the guilt of the accused;
ii. That the diabolical nature in which crime was committed indicates nothing but the
pervert nature of the accused which was previously confirmed by his previous antecedents.
iii. That the most important evidence i.e. the vaginal swab report of the prosecutrix was
nowhere mentioned and produced before the trial court, & possibility of withholding the same
cannot be discarded in limine.
iv. That the accused was last seen with the victim, and according to last seen theory in
criminal jurisprudence, the accused has to categorically state as to what had happened with the
victim, which the accused can’t explain at any stage thereby.
v. That there is adverse burden on the accused to prove his innocence, which he didn’t
discharge in the trial court.
Dissatisfied with the order passed by the Learned Trial Court, the present petitioner has approached
this Court by filing an appeal u/s 372 of Criminal Procedure Code, 1973 which reads as follows:-
SECTION 372: No appeal to lie unless otherwise provided:

1
As mentioned in the Problem Sheet.
‘No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this
Code or by any other law for the time being in force.
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court
acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and
such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction
of such Court.’
8. The Learned Counsel for the Appellant argued that in the case of Tuklalyadav v. The State of
Jharkhand2, it was held that the proviso to Section 372 of Code of Criminal Procedure, 1973
confers a statutory right upon the victim, as defined under Sec. 2(wa) of Code of Criminal
Procedure, 1872 to prefer an appeal against an order passed by the trial court either acquitting
the accused or convicting him/her for a lesser offence or imposing inadequate compensation.
9. The Learned Counsel for the Appellant also argued that in the case of Satya Pal Singh v. State
of M.P. And Ors3 wherein the Full Bench, after interpreting the proviso to Section 372 read
with Section 2(wa) of the Cr.P.C., has held that the mother of the victim has locus standi to
prefer an appeal, being a private party coming under the definition of victim under Section
2(wa) of the Cr.P.C. in the light of their legislative history has held that the right to prefer an
appeal conferred upon the victim or relatives of the victim by virtue of proviso to Section 372 is
an independent statutory right.
10. The Learned Counsel for the Appellant argued that the Trial Court’s judgment is an impugned
one. The entire approach of the Trial Court as it appears from the judgment is absolutely
misconceived, perverse and resulted into miscarriage of justice. In the Case of Aruvelu & Anr.
v. State4, it was held that the appellate court would be justified in reversing the judgment of
acquittal if there are substantial and compelling reasons and when the judgment of the trial
court is found to be perverse judgment. In the instant case, there are enough substantial and
compelling reasons which make the very judgment of Trial Court perverse.
11. The Learned Counsel for the Respondent argued that it has provided all the relevant evidences
which are produced by the Forensic Department and the Trial Court has also taken into all the
evidences while passing the order of acquittal. It is free from perversity. In Atley v. State of
U.P.5, it has been laid down by this Court that it is open to the High Court on an appeal against
an order of acquittal to review the entire evidence and to come to its own conclusion, of course,
keeping in view the well-established rule that the presumption of innocence of the accused is
not weakened but strengthened by the judgment of acquittal passed by the trial court which had

2
Cr. Appeal (S.J) No. 1281 of 2016
3
Cr. Appeal No. 1315 OF 2015
4
Cr. Appeal No. 1233-1234 of 2002
5
AIR 1955 SC 807
 the advantage of observing the demeanor of witnesses whose evidence have been recorded in its
presence.
12. The Learned Counsel for the Respondent also argued that Dwarka Dass & Ors vs State Of
Haryana6 the criminal jurisprudence of the country proceeds on the basis that a person is
innocent and the burden rests on the prosecution to prove beyond all reasonable doubts as
regards the guilt of the accused persons. In the instant case, the appellant has not proved beyond
all reasonable doubt, thus, the appeal against the acquittal of respondent is not maintainable in
the Hon’ble Court of Winterfell.
13. Before this Court, learned counsel for the appellant, in order to substantiate the guilt of the
accused-respondent Rex, has tried to project that the prosecution was successful in
demonstrating an unbroken chain of circumstances, clearly establishing the culpability of the
accused. In fact, endeavor at the hands of the learned counsel for the appellant was to project an
unbroken chain of circumstances to establish the guilt of the accused. Despite the defects in
investigation and lack of medical evidence, learned counsel for the appellant expressed
confidence, to establish the guilt of the accused-respondent. In this behalf, it is essential to
record various heads under which submissions are advanced at the hands of the learned counsel
for the appellant. The submissions advanced by the learned counsel for the appellants are being
recorded hereunder:
(a) First and foremost, learned counsel for the appellant, in order to connect the accused with
the crime under reference, extensively relied upon the evidence produced by the prosecution to
show that the accused-respondent was last seen with the victim.
(b) Learned counsel for the appellant, then referred to the medical evidence produced by the
prosecution, so as to contend that there are nail-scratch marks on the front side of the body,
which the victim may have caused to the accused in persuasion of resistance. Learned counsel
seeks the attention towards non-examination of vaginal swabs despite of the fact that
investigating agency had collected the same. Being the most vital evidence, if produced, it
would have clearly indicated towards culpability of the accused-respondent. Nonetheless, the
same has been withheld by the investigating agency. Furthermore the medical report of the
accused clearly states that there were injury on the private parts of the accused which cannot
occur under normal circumstances, other than that of forced sexual intercourse.
(c) It was also the submission of the learned counsel of the appellant, that at the time of the
recovery of the body of the victim, the same was found to be covered with a shirt with stripes. It
was submitted, that the aforesaid shirt was identified as the shirt worn by the accused-
respondent. In this behalf, reliance was placed on testimony of PW-1, namely Amy who had

6
Cr. Appeal No. 1143 of 2002.
 identified the shirt as a white shirt with lines. And in ordinary course of nature, it is obvious that
a wife has knowledge about the dress and wardrobe of his husband.
(d) It was also the submission of the learned counsel for the appellant that the report of the
Forensic Science Laboratory was sufficient to confirm, that the accused respondent was the one
who was involved in the commission of such barbaric crime under reference. In this behalf, it
was pointed out that the victim was shown to have blood group “O+ve”. According to the
report of the FSL, the panties worn by the deceased victim, the white shirt which was found on
the body of the victim, the T-shirt dumped in wardrobe of the accused-respondent house (at the
time he was apprehended) were all found with blood stains. The forensic report reveals that
blood stains on all the above articles were of blood group “O+ve”. It was therefore, the
submission of the learned counsel for the appellant, that the accused-respondent was
unmistakably shown to be connected with the crime.
(e) Last but not the least, learned counsel for the appellant invited this Court’s attention to the
statement tendered by the accused u/s 313 CrPC. During the course of his above testimony, he
was confronted with the evidence of relevant independent witnesses depicting, that the victim
was last seen in company of the respondent. He was also confronted with the fact, that he
himself had informed the search party that the deceased victim may be found at certain field. It
is submitted, that the accused-respondent who had special knowledge about the whereabouts
of the deceased, was bound to explain and prove when and where he had parted from the
company of the victim, Missy. It was submitted that during the course of his deposition u/s 313
CrPC, the accused could not tender any satisfactory explanation.
14. Per contra, the learned counsel for the respondent argued that during the occurrence of the
whole incident, the accused person was not present with the deceased, in fact, the accused and
the deceased were not last seen together also and further stated that appellant being a related
witness and having strained relations with the accused had deposed false evidence before the
Court. In this regard, the counsel for the appellant rebutted the same and relied on the case of
Kapildeo Mandal v. State of Bihar7, where the Apex Court held that the evidence of the
witness cannot be discarded solely on the basis of her relation with deceased and strained
relations with the accused.
15. The learned counsel for the respondent submits that in case of Sharad Birdhichand Sarda v.
State of Maharashtra8, while dealing with circumstantial evidence, it has been held that the
onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in
prosecution cannot be cured by false defence or plea. The conditions precedent before
conviction could be based on circumstantial evidence, must be fully established. They are:
7
AIR 2008 SC 505.
8
AIR 1984 SC 1622.
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned `must or should' and not `may be' established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that the
accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
16. The learned counsel for the Appellant argued that the accused had committed the act of rape
and murder, and in doing such a heinous crime, it is obvious that the accused must choose a
secluded place, where no person is present in order to be an eye-witness. Reliance was put on
the case of Amit v. State of Maharashta9 where there was close proximity between the event
of accused having been seen with the deceased and the factum of death, subsequently the Apex
Court has convicted the accused u/s 300 and 376, IPC. The counsel further submits that in the
case of Trimukh Morati Kirkan v. State of Maharashtra 10, the Apex Court laid down that
based on circumstantial evidence where no eye-witness account is available, there is another
principle of law which must be kept in mind. The principle is that when an incriminating
circumstance is put to the accused and the said accused either offers no explanation or offers an
explanation which is found to be untrue, then the same becomes an additional link in the chain
of circumstances to make it complete.
17. It has been also argued by the learned Counsel for the appellant that in case of State of
Rajasthan v. Kashi Ram11, the Apex Court held that: ‘If he fails to offer an explanation on the
basis of facts within his special knowledge, he fails to discharge the burden cast upon him by
Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused
fails to offer a reasonable explanation in discharge of the burden placed on him, that itself
provides an additional link in the chain of circumstances proved against him’’. And in the
instant case, where the accused-respondent is in knowledge of whereabouts of the deceased, it
is crystal clear that the accused-respondent is fully connected with the heinous crime, under
reference. There could be no room for thinking in the circumstances established in this case,
that anyone else other than the accused-respondent have raped and killed the deceased. This

9
2003 Cri. L.J. 3873 (SC).
10
2004 10 SCC 681.
11
2006 AIR SCW 5768.
 view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v.
Rajendran12]
18. In the instant case, medical evidence clearly states that the cause of death is anti-mortem rape
and a huge shock caused by the head injury. And here the prosecution story is fully established
as all the incriminating circumstances cumulatively point towards the involvement of accused-
respondent in this heinous crime which further stood corroborated by MLC report. Here the
location of incriminating material or dead body is disclosed by accused-respondent, but he
cannot explain in which manner he came to know the same, so the court must presume that the
accused-respondent is consciously connected with the alleged offence. All the circumstances
prove clearly the guilt of accused and accused alone.
19. The learned counsel for the respondent humbly submitted that cardinal principal of criminal
jurisprudence is that a case can be said to be proved only when there is certain and explicit
evidence and no pure moral conviction13 and in the present matter at hand the prosecution has
completely failed in order to adduce certain evidence, which cannot boomerang upon the
accused to prove his innocence. Where a case rests squarely on circumstantial evidence, the
inference of the guilt can be justified only when all the incriminating facts and circumstances
found to be incompatible with the innocence of the accused 14, and in the instant case the pivotal
incriminating circumstance has been disproved as the DNA profile generated from the semen
found on the underwear (panties) of the deceased did not match the DNA profile generated
from the blood sample of the respondent15.
20. To rebut this contention, the learned counsel for the appellant has referred to the MLC report of
the victim which categorically stated that hymen of the victim was not intact, which shows
nothing but the commission of barbaric rape on the deceased prosecutrix. Learned counsel for
the appellant submits that there was non-examination of vaginal swabs, despite the fact that
same has been collected by the Investigating Agency 16. Learned counsel submits that vaginal
swabs can be detected up to 9 days from the intercourse 17 and in the present case the dead
body has been recovered in the span of 5 days and the said vaginal swab has been collected by
investigating agency, but whilst the FSL report states nothing about the DNA profiling of
Vaginal swab and only categorically state that semen found on the underwear of the victim did
not match with the DNA profile generated from the blood of the accused 18. In the rape cases,
the traces of vaginal swab are utmost necessary to prove the guilt of the accused beyond all
12
(1999) 8 SCC 679.
13
Hanumant v. State of Madhya Pradesh, (1952) SCR 1091.
14
Dadya Shankar Alhat v. State of Maharashtra, AIR 2009 SC 56.
15
As per the Clarification provided by the organizers.
16
As per Para 7 of the Problem Sheet.
17
Modi’s Medical Jurisprudence and Toxicology, 23rd edition.
18
As per the Clarification provided by the organizers.
 reasonable doubt, and in the present matter at hand the investigating agency or FSL has
knowingly compromised with the vital evidence of the case. The lacuna of the investigating
agency can’t be said to weaken the prosecution case when there are enough incriminating
circumstances against the accused. Learned counsel also submits that when the chain of
circumstances are complete in order to establish the guilt of the accused, the same cannot be
rejected based on medical expert report. Reliance is placed on catena of judgments. 19 Mere
absence of injury on the private part of accused cannot rule out the possibility of rape, neither
can the absence of semen or even the presence of it, is necessary to constitute the offence of
rape and the case of prosecution cannot be dissolved merely because of the non-conclusiveness
of medical evidence.
21. Furthermore the appellant counsel submits that the trial court failed to raise the statutory
presumption against the accused-respondent of his involvement in the commission of the
offences u/s 29 &30 of the POCSO Act. Reliance is placed on M. Narsinga Rao v. State of
Andhra Pradesh20. He submits that the accused failed to rebut the statutory presumption by
leading any evidence, or by probablising a defence.
22. Learned counsel for the respondent argued that a presumption u/s 29 and 30 of POCSO Act
cannot be raised against the respondent, because the prosecution is bound to establish its own
case first, before the onus is shifted upon the accused. In this regard, reliance was placed on
Sahid Hossain Biswas v. State of W.B. 21, wherein it was held that “……It is therefore, an
essential prerequisite that the foundational facts of the prosecution case must be established by
leading medical evidence before the aforesaid statutory presumption (u/s 29, 30) is triggered in
to shift the onus on the accused to prove the contrary. Learned counsel for the respondent
submits that there are many inconsistencies in the case of the prosecution and the present
appellant has falsely implicated the respondent due to her strained relations with the respondent
and as a vendetta of revenge the present appeal lies upon.
23. We have heard learned counsel for the parties at considerable length and given our thoughtful
consideration to the arguments advance by them. We have also perused Trial Court record and
the written submissions filed by both the counsels. On the contentions raised and urged before
this court at the hearing, the questions that fall for consideration are the following-
I. Whether the present appeal should be allowed in the Hon’ble High Court of Winterfell?
II. Whether the finding of DNA profiling report is erroneous?
III. Whether the change of circumstances is so complete to establish the guilt of the accused?

19
Anil Rai v. State of Bihar, (2001) SCC 1009; Punjab Singh v. State of Haryana, AIR 1984 SC 1233.
20
AIR 2001 SC 318; See also Shamnsahib M. Multtani v. State of Karnataka, AIR 2001 SC 921; Dhanvantri B. Desai v.
State of Maharashtra, AIR 1964 SC 575.
21
(2017) 3 CALLT 243 (HC).
Maintainability of the Instant Appeal in the Judicature of Winterfell
24. In the present appeal against acquittal, the appellate Court has power to re-appreciate/review
evidence. The Court must come to the conclusion that the view taken by a trial Judge while
acquitting the accused cannot be the view of a reasonable man as the materials on record. In an
appeal against acquittal, the High Court is entitled to re- appreciate the evidence if it is found
that the view taken by the acquitting Court was not a possible view or that it has a
perverse or infirm or palpably erroneous view.
25. In the case of K. Gopal Reddy v. State of Andhra Pradesh22, it was held that where the trial
court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender
reasons and takes a view of the evidence which is barely possible, it is not only open to the
High Court but it is also obvious duty to interfere with the order of acquittal in the interest of
justice, lest the administration of justice be brought to ridicule. Here the question which arises
before this court is that whether the mother of the victim/ prosecutrix can be regarded as an
independent witness? In the opinion of this court there is no legal bar to exclude the mother of
prosecutrix/victim from being considered as an independent witness, merely on account of their
relationship.
26. The Supreme Court has held that if the trial court has resorted to perverse application of the
principles of evidence or had showed lack of appreciation of evidence, then the appellate court
may reappreciate the evidence and reach its conclusion. 23 When the trial Court has overlooked
the important aspects of the case and has handled the evidence in a most unreasonable manner
and reached the conclusion as it did on unsustainable grounds, the view of evidence taken by
the trial Court is manifestly erroneous and reasons assigned are utterly unsustainable. The Court
on looking into the facts and circumstances of the case considers the present appeal is
maintainable before this Hon’ble court because the trial court ignored the loopholes where the
blood and semen samples of the accused can be compromised and weighed the circumstantial
evidence inappropriately to acquit the accused-respondent which is untenable and bad in the
eyes of Law.

Findings of DNA Profiling, How Much Conclusive and How Much Erroneous
27. Medical evidence plays the most pivotal role in rape cases. Learned trial court found the
medical evidence and MLC report to corroborate the fact that deceased victim has been raped as
during her medical examination it was found that her hymen was not intact. But as to FSL
report, the learned trial court disbelieved the prosecution case stating the reason that DNA

22
(1979) 1 SCC 355: 1979 SCC (Cri.) 305,311: 1980 Cri.L.J. 812.
23
Lal Mandi v. State of W.B., (1995) 3 SCC 603:1995 SCC (Cri.) 560.
 profile generated from the semen found on the underwear of the deceased victim did not match
the DNA profile generated from the blood sample of the accused. Here the collection of semen
found on the underwear of the deceased creates an iota of doubt, as to its admissibility also. The
counsel for the appellant contended that the non-examination of vaginal swabs by the
investigating agency despite of collecting the same will not affect the prosecution case at all.
The counsel has placed reliance upon Modi’s Medical Jurisprudence and Toxicology, 23rd
edition, the relevant extract of the same is reproduced below:
“The presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943)
from 30 minutes to 17 days and by Morrison (1972) upto 9 days in the vagina and 12 days in the
cervix. However, in the vagina of a dead woman, they persist for a longer period.”
28. On this point, in the opinion of this Court, swabbing of mouth, vagina and anus for sperm
detection should always be performed on rape victims. However, in the instant case, the non-
examination of the vaginal swab of the victim by the FSL will not prove fatal to the case of the
prosecution, particularly in the background where there are sufficient incriminating
circumstances against the accused. It is vivid that a very causal and cavalier approach has been
adopted by FSL doctors while examining the body of the victim. We should not forget that if a
girl is raped, a part of our society is laid down, deprecated and insulted and it is not always pre-
planned, that who would be next, it can be anyone amongst us who can at any point in time face
such drastic and terrible reality prevalent in our society. Therefore, the Court directs that stern
actions to be taken against the negligent FSL doctors, without any delay.

Circumstantial Evidence Sufficient for Conviction

29. We have given our thoughtful considerations to the submission advanced at the hands of the
learned counsel for both sides. It is pertinent to state that prosecution has duly proved the
complete chain of circumstances and the same is sufficient to prove that the accused is the
perpetrator of the crime. In the instant case, all the evidence are such as would point to the
inference of guilt to the accused alone and where no alternative explanation is given by
accused, conviction can be based on the complete chain of circumstantial evidence.

30. In the light of the established facts and adduced evidences on record, the hypothesis unerringly
convergent to the guilt of the accused is cogently established by the prosecution during the trial
stage and henceforth, the order of acquittal passed by the learned Trial Court under the charges
levelled against the accused-respondent suffers from patent legal infirmities leading to the
miscarriage of justice. The impugned judgment shows that the approach of the Trial Court
 borders on perversity. Furthermore, the Trial Court failed to raise the statutory presumption
u/s 29 & 30 of POCSO Act, which the Trial Court was bound to raise in view of the mandatory
nature of the language used in the said provisions.

31. It is appalling to see that rape rears its ugly façade almost every day. The facts and
circumstances of the present case shakes the morality of the society. It is beyond imagination
that how any father can stoop down to a level of satisfying his sexual lust with his own
daughter? A daughter always looks up to her father as a shield of her dignity and honour which
is an intrinsic facet of a family especially father-daughter relationship. It shocks human
conscience when the sanctity of father-daughter relationship is ravaged in such a sordid manner
and the protector becomes violator. In such a case the offence assumes a greater degree of
vulnerability which shall not go unpunished. There can never be a graver heinous crime than
the father being charged of raping his daughter. It is the gravest sin, where the most platonic
relationship is shattered by an extreme pervert and shameful act of nonetheless but one’s own
father.

ORDER:

32. In the facts and circumstances of the present case, this court is satisfied that there are enough
incriminating circumstances against the accused-respondent. Hence, we set aside acquittal of
accused-respondent and hold him guilty of the offences punishable under sections 5, 6 of POCSO
Act, 2012; under sections 376, 376AB r/w Section 300,302,201,362,364,366 of IPC, 1860 and
impose a life imprisonment against the said accused. Resultantly, the order of acquittal by the
Learned Trial Court Judge is set aside with regard to the respondent. A copy of this order be sent to
the Learned Sessions Judge and the Jail Superintendent for compliance and the respondent be
informed accordingly.

33. Criminal Appeal No.123 is allowed and with above modification.

Pending application(s), if any, shall stand disposed of.