Criminal law was set into motion when at around 01.05 A.M. on 19.10.2006, an entry was made in the PCR Form Ex.PW-19/A by HC Jai Kumar PW-19 to the effect that a call has D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 3 of 130 been received from the mobile number 9811042809 informing that children have been murdered by the servants at 6/4, Singh Sabha Road.HC Jai Kumar immediately transmitted the aforesaid information to Police Station Roop Nagar where HC Pawan Kumar PW-20, recorded the DD No.3A, Ex.PW-20/A, to the effect that a wireless information has been received informing that servants had murdered children at 6/4, Singh Sabha Road, Roop Nagar.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 3 of 130On receiving a copy of the afore-noted DD entry, SI Dharampal PW-40, accompanied by Const.Tejpal PW-25, proceeded to the building bearing Municipal No.6/4, Singh Sabha Road, Roop Nagar, Delhi.Simultaneously, Inspector Baltej Singh PW-48, who also received the information recorded in DD No.3A, reached the said building.On reaching the said building, the aforesaid police officers learnt that three children of Mr.Ramesh Kumar Aggarwal PW-10 and Nirmal Aggarwal PW-23, who are residing at the second floor of the said building, have been injured and removed to Sunder Lal Jain Hospital.The children who were injured were a boy named Pratham (herein after referred to as the "Deceased") aged 4 years, a girl named X aged 17 years and a girl named Y aged 9 years.(The real names of the two girls are not being disclosed D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 4 of 130 as the instant case pertains to the commission of the offence of rape).D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 4 of 130Leaving SI Dharampal PW-40, at the place of occurrence, Inspector Baltej Singh PW-48 and Const.Tejpal PW-25, proceeded to Sunder Lal Jain Hospital where they learnt that the deceased has been brought dead at the hospital as recorded in the MLC Ex.PW-2/C of the deceased.We note that following was recorded on the MLC Ex."....Alleged H/o stab injury, incise wound over Lt submandibular region at house at 12.45 AM on 19/10/06, brought in casualty by his relatives at 1:15 AM on 19/10/06 for medical aid.L/E incise wound over Lt Submandibular region .....Child was declared brought dead....."Inspector Baltej Singh PW-48 and Const.Tejpal PW-25, further learnt that X and Y have also been admitted in the hospital in an injured condition as recorded in their MLCs Ex.PW-2/A and Ex.PW-2/B respectively.We note that following was recorded on the MLC Ex.PW-2/A of X:-"Alleged H/o stab injury, incise wound over anterior aspect of neck and multiple incise wound over back at home at 12.45 AM on 19/10/06, brought in casualty by her relatives at 1:15 AM on 19/10/06 for medical aid.L/E Deep incise wound over anterior aspect of neck and multiple incise wound over back.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 5 of 130Shifted to OT Admit in ICU"We note that following was recorded on the MLC Ex.PW- 2/B of Y:-"Alleged H/o stab injury, incise wound over anterior aspect of submandibular region and Lt side neck Rt index and middle finger injury at home at 12.45 AM on 19/10/06, brought in casualty by her relatives at 1:15 AM on 19/10/06 for medical aid.L/E Incise wound over anterior aspect of submandibular region, Lt side neck and Rt index and middle finger.Shifted to OT Admit in ICU"At the hospital, Inspector Baltej Singh PW-48 and Const.Tej Pal met Ramesh Kumar Aggarwal PW-10, the father of the children.Inspector Baltej Singh recorded the statement Ex.PW-10/A of Ramesh Kumar Aggarwal and made and endorsement Ex.PW-48/A thereon, and at around 04.00 A.M. on 19.10.2006 forwarded the same through Const.Tejpal PW- 25, for the purposes of registration of an FIR.Tejpal took the endorsement Ex.PW-48/A to HC Pawan Kumar PW-20, who recorded the FIR No.295/06 Ex.In his statement Ex.PW-10/A Ramesh Kumar Aggarwal stated that his family consists of his wife Nirmala Aggarwal, three daughters Nikita Aggarwal, X and Y and his D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 6 of 130 son Pratham (deceased) and that they reside on the second floor of the building bearing Municipal No.6/4 Singh Sabha Road, Ghanta Ghar, Shakti Nagar, Delhi.The accused used to reside in a room constructed on the roof of their residence.On 18.05.2006 in the evening he was watching television along with his wife and children in his room.At about 10.00 P.M. his three children i.e. X, Y and the deceased left their room while the accused remained in his room till 11.15 P.M. The accused was watching television and pressing his legs till the time he remained in his room.At about 11.15 P.M. the accused left from their room and he and his wife went to sleep.At about 12.45 P.M. his daughter X who was smeared with blood and writhing in pain suddenly came to his room.After telling him that the accused had hit her, X fell on the bed and became unconscious.In the meantime Y who was also smeared with blood came there.She told him that the accused had hit her and the deceased, upon which he and his wife rushed to the room of their children where they saw that the deceased was lying in a pool of blood with a knife stuck in his neck.On seeing the same he raised an alarm and removed his three children to Sunder Lal Jain Hospital with the help of his neighbours and relatives.The deceased was declared as D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 7 of 130 brought dead at the hospital.The condition of both his daughters was serious.The accused absconded from his house.In the meantime, injured girl X was operated upon at Sunder Lal Jain Hospital.The report Ex."....Alleged H/o Assault Pt has been stabbed at multiple placesTracheal wound - already tube put2. Left side of chest wall around 47th ICS horizontal 5- 9 cm long wound, sucking woundPosterirly - 7-8 multiple wounds 2-3 ling vertically and horizontally placed D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 8 of 130 All the wounds bleeding profusely mid line superior wound has an discharge also....."D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 8 of 130The report Ex.PW-8/C prepared by Dr.A.464/2009 Page 9 of 130L/w over distal phalagx of Rt index, Rt middle and Lt ring finger L/w of about 1 cm x 0.5 cm over Rt shoulder."At around 3.45 A.M. Dr.Uma Rani Swain PW-9, conducted the gynaecological examination of Y. The relevant portion of the gynaecological examination report Ex.PW-9/B prepared by Dr.Uma Rani Swain reads as under:-"Ext genitalia: healthy and normal no obvious discharge or bleeding.Hymen intact.No sign of injury...."At about 5.15 A.M. Dr.Neetu made endorsements on the MLCs Ex.PW-2/A and Ex.PW-2/B of X and Y respectively that 'Pt. is not fit for statement because of tracheotomy.'After collecting the MLCs of the deceased, X and Y, Inspector Baltej Singh PW-48, proceeded to the place of occurrence.In the meantime, the crime team also reached the place of occurrence; on being summoned.At the place of occurrence, the police officials found that two bed sheets which were spread on the beds which were lying in the room of the children were stained with blood and that a foot print was imprinted on one of the said two bed sheets; a blood stained pyjama and an underwear were lying on the floor of the D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 10 of 130 childrens room; a knife having an iron handle stained with blood was lying in the childrens room; a bunch of hair was lying on the one of the bed lying in the childrens room; a hair was lying on the floor of the childrens room; the floor of the room of the parents of the children was stained with blood; bed sheet which was found spread on the bed which was lying in the room of the parents of the children was stained with blood; the floor of a bathroom which was situated near the childrens room was stained with blood and that a knife was lying outside the said bathroom.The police lifted the aforesaid materials and seized the same vide memo Ex.PW-40/A.PW-26/A the same could not be developed.HC Rajpal Singh PW-32, photographer, took 11 photos Ex.PW-32/A1 to Ex.PW-32/A11 of the place of occurrence; negatives whereof are Ex.PW-32/B1 to Ex.SI Ajay Kumar PW-27, Incharge, Mobile Crime Team, North District, examined the place of occurrence and prepared the report Ex.PW-27/A, the relevant portion whereof reads as under:-D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 11 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 11 of 130Articles examined and lifts SOE - Lot of blood lying on the floor of the bed room and beds 1 Two nives - one from bed room floor and other in the bathroom window.I.O. is advised to 1 send the D.B. for P.M. 2 Interrogate the parents, neighbours and corporate 3 to locate and interrogate servants 4 Also interrogate injured ......." (Emphasis Supplied)Inspector Baltej Singh PW-48, prepared the sketches Ex.PW-48/B and Ex.PW-48/C of the two knives found at the place of occurrence and the site plan Ex.PW-48/D of the place of occurrence.PW-1/C8 pertaining to the death of the deceased prepared by Inspector Baltej Singh records that 'One knife has been recovered from the place of occurrence'.The medial angle of the wound is more acute.The shape of the wound is more or less spindle shaped.Two small cuticle deep cuts each 0.4 cm long and about 1 cm apart each other over just below and adjacent to middle part of mandible."The doctor further opined that the cause of death of the deceased is asphyxia consequent upon choking of trachea (wind pipe) by blood clots as a result of injuries to major vessels of left side of neck.The injuries were caused by sharp, cutting, penetrating and straight weapon and that the same were ante-mortem in nature.Injury no. (1) found on the person of the deceased was sufficient to cause death in the ordinary course of nature.After conduct of the post-mortem, the doctor handed over the clothes, scalp hair and blood sample of the deceased D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 13 of 130 on a gauze to HC Tejpal PW-33, who in turn handed over the same to Inspector Baltej Singh PW-48, vide memo Ex.PW-33/A."He tried to molest me.He entered inside me, took off his clothes.It pained.This all happened in the end when he already stabbed me.He hurt all three of us simultaneously.Firstly he stabbed my younger sister, then me and then my brother.I dont know his name, my mom must be knowing it.I had seen him earlier also and I opened the light.He was working in my house since about 1 week.PW-48/F that 'Patient Y is very anxious and has been anti-xilotius.She would be not fit for statement'.Likewise, at about 11.00 P.M., Dr.Gaurav Singhal PW-3, made an endorsement Ex.PW-3/A on MLC Mark X of X that 'Pt not fit to talk at present as advised by Dr.Anoop K Ganjoo'.In the meantime, the police went about looking for the accused as Ramesh Kumar Aggarwal, the father of the children, indicted the accused as the person who caused death of the deceased and inflicted injuries on girls X and Y. In the early morning of 19.10.2006 the police received information that the accused is present in Rishikesh pursuant to which Inspector Vimal Kumar PW-29, accompanied by HC Yogender PW-28, proceeded to Rishikesh where he arrested the accused at 6.30 P.M. as recorded in the arrest memo Ex.PW-28/A.On being interrogated by Inspector Baltej Singh PW-48, in the presence of SI Rishipal Singh PW-34, the accused made his disclosure D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 15 of 130 statement Ex.PW-34/A wherein he admitted that he caused the death of the deceased; committed rape upon X and inflicted injuries upon the person of X and Y. He further stated that he had hidden the clothes which he was wearing at the time of occurrence and that he can get recovered the same.Pursuant thereto, the accused led Inspector Baltej Singh PW-48, SI Rishipal PW-34 and SI Ramesh Dixit PW-35, to the place of occurrence i.e. second floor, 6/4, Singh Sabha Road and got recovered a pyjama, vest, underwear and handkerchief from the roof of the room which was built upon the said floor.The aforesaid clothes were seized vide memo Ex.PW-34/A. It may be noted here that Prem Prakash Aggarwal PW-17, the brother of the father of the children, was also present at the time of the recovery of the said clothes.It may be noted here that MLC Ex.PW-4/A of the accused records that no fresh external injury was found on any part of the body of the deceased and that the secondary sexual characters of the accused are well developed.A.464/2009 Page 16 of 130After conducting the medical examination of the accused, the doctor handed over the blood sample of the accused on a gauze to SI Rishipal PW-34, who in turn handed over the same to Inspector Baltej Singh PW-48, vide memo Ex.PW-34/C.On the same day i.e. 20.10.2006 at about 3.30 P.M. the accused was examined by Dr.M.K.Panigrahi PW-12, for the purposes of ascertaining whether he is capable to perform sexual intercourse.The report Ex.PW-12/A prepared by Dr.M.K.Panigrahi records that there is nothing to suggest that the accused is not capable of performing sexual intercourse and that no smegma was found in the external genitiala of the accused.On 21.10.2006 Y was discharged from Apollo Hospital.On the same date Inspector Baltej Singh PW-48, recorded the statement of Y under Section 161 CrPC.In her statement Y indicted the accused as the person who caused the death of the deceased; committed rape upon X and inflicted injuries upon her and X.On 22.10.2006 SI Rishipal PW-34, accompanied by HC Sanjay PW-30, again took the accused to Hindu Rao Hospital where he was examined by Dr.The MLC Ex.PW-6/A of the accused records that no fresh external injury was found on the person of the accused.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 17 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 17 of 130After conducting the medical examination of the accused, the doctor handed over two vials containing scalp hair and pubic hair of the accused to SI Rishipal PW-34, who in turn handed over the same to Inspector Baltej Singh PW-48, vide memo Ex.PW-30/A.On the same day i.e. 22.10.2006 Inspector Baltej Singh PW-48, collected pyjama, t-shirt and brassiere worn by X at the time of her admission at Sunder Lal Jain Hospital, panty worn by Y at the time of her admission at Sunder Lal Jain Hospital, vaginal swabs of X and Y, urinal sample of X, blood which oozed out from vagina of X and pubic hair of X from Sunder Lal Jain Hospital and seized the same vide memo Ex.PW-9/C.On 23.10.2006 the bed sheet seized from the room of the children and having a foot print imprinted upon it was sent to Sudhir Bhalla PW-14, Finger Print Expert, who opined that no chance print could be developed by him for the reason no ridges were found on the foot print imprinted upon the bed sheet in question.He further opined that the said foot print be got examined by physical and biology division of FSL, Delhi.Sudhir Bhalla prepared the report Ex.PW-14/A in said regard.Pursuant thereto, said bed sheet as also other articles which were seized during investigation were sent to FSL where Ravinder Kumar Jain PW-15, Finger Print Expert, examined the D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 18 of 130 foot print in question.A.464/2009 Page 18 of 130On the same day i.e. 23.10.2006 SI Manohar Lal PW-38, Draftsman, prepared the site plan to scale Ex.PW-37/A was prepared.Unfortunately, the error which had occurred in the rough report and was corrected subsequently found its way in the report Ex.PW-37/A. This practice of callously preparing reports by the officials of FSL is seriously deprecated by this court.It is expected that in future the officials of FSL would be more careful and vigilant while preparing the reports.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 24 of 130The correct factual position is that the hair seized from the spot (exhibit 5) was compared with pubic hair of X (exhibitThe result of the said comparison was that the characteristics of exhibit 5 were found to be dissimilar from the characteristics of exhibit 23 D.Sen.Ref.4/2008 & Crl.Additionally, the hair seized from the spot (exhibit 5) was also compared with scalp hair of the deceased (exhibit 11) and scalp hair of the accused (exhibit 25).However, no conclusive opinion could be rendered with regard to the said comparison.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 25 of 130Vide FSL report Ex.PW-37/B it was opined that blood detected on the two bed sheets, underwear and strand of hair seized from the room of the children was having O group; blood detected on pyjama seized from the room of the children and blood lifted from the said room was of human origin, group whereof could not be determined; blood detected on the bed sheet seized from the room of the parents, knife seized from the bathroom and clothes of the deceased was having O group; blood group of the deceased was O; no opinion could be given about the group of blood sample of the accused as the same had putrefied; blood detected on pyjama which X was wearing at the time of her admission in Sunder Lal Jain Hospital and t-shirt which Y was wearing at the time of her admission in Apollo Hospital was of human origin, group whereof could not be determined; no opinion could be given about the group of blood sample of X and blood which oozed from the vagina of X as the same had putrefied; blood detected on shirt and pyjama which X and Y respectively were D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 26 of 130 wearing at the time of her admission in Apollo Hospital was having O group and that no opinion could be given about the group of semen which was found on the vaginal swabs of X and Y.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 26 of 130Vide FSL report Ex.PW-37/C it was opined that blood was detected on the vest, underwear and pyjama recovered at the instance of the accused and that human semen was detected on the said underwear and pyjama.Vide FSL report Ex.PW- 37/D it was opined that blood detected on the said vest was having O group; blood detected on the said underwear and pyjama was of human origin, group whereof could not be determined and that no opinion could be given about the group of semen which was detected on the said underwear and pyjama.Armed with the aforesaid materials, a charge sheet was filed against the accused.Following charges were framed against the accused:-D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 27 of 130PW-20/B and the DD entry Ex.PW- 20/C were prepared by him.HC Shiv Pratap Singh PW-24, deposed that the copy of the FIR Ex.Tej Pal PW-25, deposed that he took the endorsement Ex.PW-48/A prepared by D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 28 of 130 Inspector Baltej Singh PW-48, to the police station at about 04.00 A.M. on 19.10.2006 for the purposes of registration of an FIR.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 28 of 130Hari Gupta PW-6, Dr.Sudha Kansal PW-7, Dr.Seema Patni PW-8, Dr.Uma Rani Swain PW-9, Santosh Kumar Upadhyaya PW-11, Dr.M.K.Panigrehi PW-12, S.S.Rana PW-16 and Dr.K.Goyal PW-1, deposed that he conducted the post- mortem of the deceased and prepared the post-mortem report Ex.PW-1/A of the deceased.He further deposed that he handed over the clothes, scalp hair and blood sample of the deceased on a gauze to the police.M.Arshad PW-2, deposed that the MLCs Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C of X, Y and the deceased were prepared by him.Gaurav Singhal PW-3, deposed that the endorsements Ex.PW-3/A and Ex.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 29 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 29 of 130Rakesh Kumar PW-4, deposed that he medically examined the accused on 20.10.2006 and prepared the MLC Ex.PW-4/A in said regard.He further deposed that he handed over the blood sample of the deceased to SI Rishipal after conducting the medical examination of the accused.Hari Gupta PW-6, deposed that he medically examined the accused on 22.10.2006 and prepared the MLC Ex.PW-6/A in said regard.He further deposed that he handed over two vials containing pubic hair and scalp hair of the accused to SI Rishipal after conducting the medical examination of the accused.Sudha Kansal PW-7, deposed that she had prepared the history sheet Ex.PW-7/A of X on 19.10.2006 of X and that she made the endorsement Ex.PW-7/B on the MLC Mark X of X.X had multiple stab injuries all over her body, predominantly on the upper chest and abdomen and that her neck was slit open.Tracheotomy tube was put in the throat of X and that a chest tube was put in the left side of the chest of X. Multiple blood transfusions were given to X. She further deposed that she opined that the injuries found on the person of X were dangerous in nature and that the treatment record Ex.PW-8/A of X was prepared by her.D.Sen.Ref.4/2008 & Crl.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 30 of 130Uma Rani Swain PW-9, deposed that she conducted the gynaecological examination of X at about 3.15 P.M. on 19.10.2006 and prepared the report Ex.PW-9/A in said regard.She further deposed that she conducted the gynaecological examination of Y at about 3.45 A.M. on 19.10.2006 and prepared the report Ex.PW-9/B in said regard.After conducting the gynaecological examination of X and Y she handed over the materials seized vide memo Ex.Neetu made the endorsements that 'Pt. is not fit for statement because of tracheotomy' on the MLCs Ex.PW-2/A and Ex.PW-2/B of X and Y respectively.That he can identify the handwriting and signatures of Dr.Rakesh Kumar Gupta and Dr.M.K.Panigrehi PW-12, deposed that he examined the accused on 20.10.2006 at about 3.30 P.M. to ascertain whether the accused is capable of performing sexual intercourse and that he prepared the report Ex.PW-12/A in said D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 31 of 130 regard.S.S.Rana PW-16, deposed that he handed over the materials seized vide memo Ex.PW-16/A to the police.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 31 of 130Urvashi Prasad Jha PW-46, deposed that on 19.10.2006 X had written the account Ex.PW-46/A of the incident in her presence.She conducted the gynaecological examination of X at about 05.00 P.M. on 19.10.2006 and she noted following injuries on the person of X:- (i) A torn hymen;(ii) Circumferential tears between the hymen and the labia minora with slight bleeding; and (iii) Tear in the fouchette with slight bleeding which is suggestive of forced sexual vaginal intercourse.C Witnesses to prove the scientific evidence: - Ravinder Kumar Jain PW-15, Dr.V.K.Goyal PW-36 and Anita Chhari PW-Ravinder Kumar Jain PW-15, deposed that the report Ex.PW-15/A was prepared by him.Anita Chhari PW-37, deposed that the FSL reports Ex.PW-37/A, Ex.PW-37/B, Ex.PW- 37/C and Ex.PW-37/D were prepared by her.V.K.Goyal PW-36, deposed that the police made an application Ex.PW-36/A for return of the parcel containing the pyjama recovered at the instance of the accused and that he D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 32 of 130 made an endorsement Ex.PW-14/A was prepared by him.ASI Manish Kumar Bhardwaj PW-26, deposed that the report Ex.PW-26/A was prepared by him.ASI Ajay Kumar PW-27, deposed that the report Ex.PW-27/A was prepared by him.X PW-21, deposed that on 14.10.2006 her mother employed the accused as a domestic servant.On 18.10.2006 at about 10.00 P.M. she, Y, the deceased and her parents were watching television in the room of her parents.After sometime, she, Y and the deceased went to their bedroom where Y and the deceased went to sleep whereas she studied for about half an hour.Thereafter she also went to sleep on the bed on which the deceased was sleeping.At about 12.00 A.M. she heard the noise of weeping of Y upon which she woke D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 33 of 130 up and saw that the accused was sitting between the bed on which she was sleeping and the bed on which Y was sleeping.She immediately switched on the light and saw that the neck and hands of Y were smeared with blood.The accused who was carrying a knife in his hand rushed towards her.She tried to open the door but the accused gave knife blows on her back and the left side of her body due to which she fell down on the floor.The accused went to Y, slit her throat and asked her to remove her pant.In the meantime, the deceased also woke up and started crying.Y asked the accused to allow her to go out to drink water but the accused told her to drink water from the tap in the bathroom which was situated in the said room.Y went to the bathroom and the deceased started to follow Y. When the deceased was about to enter the bathroom the accused caught hold of the deceased from his neck.The accused lifted the deceased from his neck, gave a knife blow on his neck and threw him on her bed.The knife got stuck in the neck of the deceased.She and Y requested the accused to let them go out and told him that they would not disclose a word about the incident to anyone.The accused went out of the room and brought another knife from the kitchen.The accused gave knife blows on her neck as also on the neck of Y. Thereafter he removed her pyjama and under pant as also his clothes.The accused tried to rape her but she managed to D.Sen.Ref.4/2008 & Crl.The accused again gave a knife blow on her back and committed rape upon her.While committing rape upon her, the accused removed a ring from the finger of her left hand.The accused again tried to rape her but she fell down from the bed.The accused placed his fingers on her nostrils to ascertain if she was alive or not.She stopped her breath and the accused went out of the room.She asked Y to go to the room of her parents and inform them about the incident but she did not go as she was scared and apprehended that the accused is present outside the room.She and Y were bleeding from their necks.Thereafter she went to the room of her parents by crawling on the floor.On reaching there, she switched on the light upon which her mother woke up.Her mother woke up her father.Her father made her to lie down on the bed.She told her parents about the incident.Her mother and her neighbours helped her to wear clothes.Her father and her neighbours removed her, Y and the deceased to the hospital.The pyjama and the underwear recovered by the police from her room were worn by her at the time of the occurrence.She caught the hair of the accused when he assaulted her for the first time and that some strands of hair of the accused came in her hand.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 35 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 33 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 34 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 35 of 130On being questioned as to why she did not raise an alarm at the time of the occurrence, X stated that (Quote) 'I could not raise any alarm because I had sustained injuries on my neck.I had not struggled with the accused to save myself nor I had fought with him.I had pulled his hairs.'PW-22, deposed that on 18.10.2006 she, i.e. Y, the deceased and her parents were watching television in the room of her parents.At about 10.30 P.M., she, i.e. Y and the deceased went to their bedroom where she and the deceased went to sleep whereas X started studying.After sometime she felt that someone was fondling her body upon which she woke up.She saw that the accused was fondling her body with his hand.She removed the hand of the accused from her body upon which the accused pressed a knife on her neck as a result of which blood started to ooze out of her neck.When she removed his hand she also sustained injuries on her fingers.The accused pushed her from the bed due to which she fell down on the floor upon which she started weeping.On hearing her noise X woke up and switched on the light.X tried to open the door of the room but the accused attacked her with knife.The accused gave two-three knife blows to X. X caught the hair of the accused but fell on the floor.The accused asked her to open her pant.She asked the accused to D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 36 of 130 let her go out as she wanted to drink water upon which the accused told her to drink water from the tap in the bathroom.In the meantime the deceased also woke up and started crying.She went to the bathroom and the deceased started to follow her.The accused caught hold of the deceased from his neck, gave a knife blow on his neck and threw him on the bed.The knife got stuck in the neck of the deceased.The accused ran to the kitchen and brought another knife from there.She followed X. She narrated the whole incident to her parents.Her father and neighbours removed her, X and the deceased to the hospital.She sustained injuries on her neck and other parts of her body.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 37 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 36 of 130A.464/2009 Page 37 of 130On being questioned as to why she did not raise an alarm at the time of the occurrence, Y stated that (Quote) 'I did not cry because I have received cut with knife on my neck...I did not raise any alarm since I was injured.I was not having injuries on my leg.I did not run out of the because it was bolted from upside by a chitkani.' On being questioned about the commission of rape by the accused upon X she stated that (Quote) 'Accused kept on lying on my sister for 3-4 minutes.At that time I was on my bed.The difference between the first bad act and second bad act was half a minute.My sister has tried to free her by moving herself on one side but accused gave a knife blow to her.When my sister took a turn on one side accused had given a knife blow to her.My sister had taken a turn much after the accused laid on her....For the second time, the bad act which the accused did with my sister was on my bed.I was sitting on the same bed'.On being questioned about the movement of the accused to the kitchen the witness stated that (Quote) 'The accused left our bedroom at around 12.30 a.m. The door was open when the accused had left the bedroom to the kitchen to bring a knife.Within 5- 10 seconds, accused had returned back to the bedroom with a knife.We did not try to run out of the bedroom because the accused in the meantime had come to the bedroom again.' D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 38 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 38 of 130Ramesh Kumar Aggarwal PW-10, the father of the children, deposed that they employed the accused as a domestic servant to work in their house five days prior to the intervening night of 18/19.10.2006 on the recommendation of a driver named Jeetu.They gave a room built on the roof of their residence to the accused for his occupation.On 18.10.2006 he, his wife and three children namely X, Y and the deceased were watching television in their room.The accused who was pressing his legs was also present in the said room at that time.At about 10.00 P.M., X, Y and the deceased went to their bedroom.At about 11.15 P.M. he and his wife went to sleep and the accused left their room.At about 12.45 P.M. X who was soaked with blood and writhing in pain entered their room all of a sudden.She told him and his wife that the accused has inflicted injuries on her body and thereafter fell on the bed.Meanwhile, Y who was also soaked with blood and was weeping loudly came to their room and told them that the accused has caused injuries to the deceased.On hearing the same, he and his wife rushed to the room of their children where they saw that the deceased was drenched with blood and that a knife was stuck in his neck.The knife which was stuck in the neck of the deceased did not belong to their household.He pulled out the knife from the neck of the deceased and threw it on the floor.He raised an alarm upon which their neighbours came to their residence.He and his neighbours removed X, Y and the deceased to Sunder Lal Jain Hospital where the deceased was declared as brought dead.The doctors told him that the condition of X and Y was serious at the time of their admission in the hospital.After sometime the police arrived at the hospital and recorded his statement Ex.PW-10/A. The accused managed to escape from their house.On 26.10.2006 he handed over the t-shirt and the pyjama which Y was wearing at the time of the occurrence to the police.The date of birth of X and Y are 09.10.1989 and 28.07.1997 respectively as recorded in the birth certificates Ex.PW-10/C and Ex.PW-10/D.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 39 of 130A.464/2009 Page 40 of 130 the hospital.I did not find that knife there in my house when I came back at 10.00 am from the hospital'.On being questioned about the presence of the accused after the occurrence, the witness stated that (Quote) 'It is correct that after my daughter came to my bedroom I along with my wife and daughter had gone to the bedroom of my children.Nirmal Aggarwal PW-23, the mother of the children, deposed that on 14.10.2006 they employed the accused as a domestic servant to work in their house.On 18.10.2006 she, her wife and her three children namely X, Y and the deceased were watching television in their bedroom.At about 10.30 P.M., X, Y and the deceased went to their bedroom.She had seen a knife in a bathroom situated near the stair case of her house.A.464/2009 Page 41 of 130On being questioned about her movements after the occurrence, the witness stated that (Quote) 'We had removed our children from our house around 12.40 am for hospital.I had not gone to sunder Lal hospital with my children but remained in the house.I remained in my house upto 1.30/1.45 am.Thereafter police came and took me to Jain Colony in search of the accused.SHO had taken me in the search of the accused.I returned back to my house around 4.00 am....It took about 1 hour to search out the house of my driver in Jain Colony.At that time accused was not found in the house of Jeetu.From there we had tone along with Jeetu to Jawahar Nagar where jija of accused had been residing.Accused was not found there also'On being questioned about the knives recovered from the place of occurrence the witness stated that (Quote) 'After D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 42 of 130 removing the knife from the neck my husband had thrown the knife on the floor.When SHO was taking me in search of the accused in my house before leaving the house I had gone to the bathroom near the stair case where I noticed the knife.On hearing the same, he immediately rushed to the second floor of the building in which he used to reside as the voice was coming from there.Ramesh Kumar Aggarwal, his wife, three daughters and one son were residing on the second floor.The family of Ramesh Kumar Aggarwal had employed one domestic servant.When he reached the second floor, Mr.Ramesh Aggarwal and his wife opened the door and told him that their children have been killed by their servant and that their servant has absconded.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 43 of 130 He saw that Ramesh Kumar Aggarwal was carrying the deceased who was badly injured and was bleeding profusely.X was lying on the bed in an injured condition while Y who was also injured was standing in the room.He immediately offered his help to Ramesh Kumar Aggarwal for removing the children to the hospital.He also gave a call to the police from his mobile having number 9811042809 and informed them about the incident.Thereafter he along with Ramesh Kumar Aggarwal removed the deceased to Sunder Lal Jain Hospital in his own car while X and Y were also removed to the same hospital by someone else.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 43 of 130On being questioned about the room in which the occurrence took place the witness stated that (Quote) 'I had seen the room where the incident took place.I had not seen the knife lying in the room.I had seen the room of the children where the incident took place after I came from the hospital.' On being questioned about the arrival of the police at the place of occurrence the witness stated that (Quote) 'I had taken Pratham (the son of the complainant) to the hospital.We had reached the hospital between 12.00 or 1.00 am.PCR came at the house after we left for hospital.In my presence police did not reach the hospital.Jeetan Dass PW-39, deposed that he earns his livelihood by working as a driver.The wife of Ramesh Kumar asked him to get her a domestic servant.Since he had provided a boy named Jheri to her on an earlier occasion she again asked him to get her a domestic servant.The boy he had earlier provided to wife of Ramesh Kumar left her services.A person named Subash who was known to him had requested him to arrange some job for his brother-in-law.He asked Subash to meet the wife of Ramesh Kumar for the job upon which Subash along with his brother-in-law met her.After meeting Subash and his brother- in-law wife of Ramesh Kumar gave him a telephonic call and told him that she has employed the brother-in-law of Subash.The accused is the brother-in-law of Subash.In the month of October 2006 some police officials came to his house and made inquiries about the accused whereupon he learnt about the incident in question.He took the police officials to the residence of Subash where they met Subash.On being questioned about the presence of wife of Ramesh Kumar Aggarwal at the time when the police came to D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 45 of 130 his house, the witness stated that (Quote) 'Wife of Ramesh was also with them.On being questioned about the identity of the accused the witness stated that (Quote) 'It is correct that I had not seen accused present in the court before I had referred him to the wife of Ramesh, complainant.Thereafter I had seen the photograph of the accused in the newspaper and after that I had seen him in the court.HC Yogender PW-28, deposed that on 19.10.2006 pursuant to a secret information he along with Inspector Vimal Kishore and other police officials had gone to Rishikesh to arrest the accused.They apprehended the accused at about 6.30 P.M. on 19.10.2006 at Rishikesh.On being questioned about the time when he left Delhi to go to Rishikesh the witness stated that (Quote) 'We left Delhi at about 1.30 am on 19.10.2006....'Inspector Vimal Kishore PW-29, deposed in harmony with the evidence of HC Yogender.On being questioned about the time when they left Delhi to go to Rishikesh the witness stated that (Quote) 'We left Delhi at about 1.30 am on 19.10.2006....' On being questioned about the time when he left Delhi to go to Rishikesh the witness stated that (Quote) 'I left Delhi at 4.00 or 4.30 am on 19.10.06......."D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 47 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 47 of 130SI Rishipal Singh PW-34, SI Ramesh Dixit PW-35 and Inspector Baltej Singh PW-48, deposed that on 20.10.2006 at about 11.00 A.M. the accused led them to the second floor, 6/4 Singh Sabha Road, New Delhi i.e. the residence of the children and got recovered a pyjama, a vest, an underwear and a handkerchief from the roof of the room which was built on the said floor.Prem Prakash Aggarwal PW-17, the brother of the father of the children, deposed that he was present at the time of the said recovery.Additionally, SI Ramesh Dixit PW-35 and Inspector Baltej Singh PW-48, deposed that on 30.10.2006 on being interrogated the accused made his second disclosure statement wherein he stated that the ring which was removed by him from the finger of X at the time when he committed rape upon her was kept by him in the right pocket of the pyjama worn by him at that time.Pursuant thereto, the parcel containing the said pyjama was brought from the FSL to the police station.The said pyjama was checked upon which a diamond ring was recovered from the right pocket of the said pyjama.In his examination under Section 313 Cr.P.C., the accused admitted that on 14.10.2006 he was employed as a domestic servant at the residence of Ramesh Kumar Aggarwal; that in the night of 18.10.2006 he surreptitiously entered the bedroom where X, Y and the deceased were sleeping; that he gave a knife blow on the neck of the deceased and inflicted injuries on the person of X and Y; that he raped X; that on 19.10.2006 he was arrested by the police at Rishikesh and that he got recovered the clothes which he was wearing at the time of the occurrence.The accused however denied having removed a ring from the finger of X at the time when he committed rape upon her.The accused further stated that he committed the aforesaid acts to seek revenge from the father of the children as he used to force him to commit homosexual acts with him.The accused did not lead any evidence in his defence.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 49 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 49 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 50 of 130D.Sen.Ref.4/2008 & Crl.Notwithstanding that the plea of juvenility was not raised before Trial Judge, in the interests of justice, vide order dated 03.09.2009 we directed that ossification test of the accused be conducted by a medical board of AIIMS to ascertain the age of the accused.Pursuant to the said order, Medical Superintendent, AIIMS, constituted a medical board consisting of following members:-"1. Dr.Sanjeev Lalwani - Chairman Assistant Professor of Forensic Medicine2. Dr.Ashu Seith Bhalla - Member Assoc.Professor of Radio-diagnosisVijay Prakash Mathur - Member Assistant Professor of C.D.E.R.Kashipa Harit - Member Secy.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 51 of 130Department of Hospital Administration"After conducting the physical, dental and radiological examination of the accused, Board prepared the report dated 18.09.2009, relevant portion whereof reads as under:-"PHYSICAL EXAMINATION SECONDARY SEXUAL CHARACTERS- Fully Developed GENITALS-Adult size fully developed genitalia with bilaterally descended testis.DENTAL CHARTING Right Upper Jaw 1 to 7 8 th Partiall erupted Right Lower Jaw 1 to 8 Left Upper Jaw 1 to 7 8 th Partially erupted Left Lower Jaw 1 to 8 X-Ray - OPG- Report of Dental Radiological Examination OPG X Ray seen wisdom molar (3rd Molar) present and fully developed roots Impression: Ages estimation between 18-22 years (Report Enclosed) RADIOLOGICAL EXAMINATION (REPORT ENCLOSED) .....Report of Radiological Examination-X-ray B/L Humerus- AP & Elbow - B/L Conjoint humeral epiphysis fused - BA > 17.5 yearsThe MLCs Ex.PW-4/A and Ex.PW-6/A and the report Ex.PW-12/A of the sexual examination of the accused and the order on sentence dated 21.10.2008 passed by the trial court throw some light on the aspect of age of the accused on the date of offence.The MLCs Ex.PW-4/A and Ex.Neither any question was put to the said witnesses in their cross-examination regarding the lifting of finger prints from knives in question nor was any suggestion given to them that they did not make any attempt to lift the fingerprints from D.Sen.Ref.4/2008 & Crl.The above captioned appeal and the death sentence reference arise out of the judgment and order dated D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 1 of 130 04.10.2008 and the order on sentence dated 21.10.2008 passed by the learned Additional Sessions Judge in Sessions Case No.09/2007 arising out of FIR No.295/2006 registered at PS Roop Nagar.By virtue of the judgment and order dated 4.10.2008, Sanjay Dass has been convicted for offences under Sections 302/307/376/379 IPC.It may be noted that Sanjay Dass was charged for an offence punishable under Section 392 IPC but has been convicted for a lesser offence i.e. the offence punishable under Section 379 IPC.Vide order on sentence, the learned Additional Sessions Judge has imposed the extreme penalty of death sentence on Sanjay Dass in respect of the offence of murder punishable under Section 302 IPC.With regard to the offence(two) punishable under Section 307 IPC, he has been sentenced to undergo rigorous imprisonment for 10 years and pay fine in sum of Rs.1,000/- pertaining to the injuries caused by him to Kumari X and Kumari Y; in default to undergo SI for 3 months.With regard to the offence punishable under Section 376 IPC, he has been sentenced to undergo rigorous imprisonment for 10 years and pay fine in sum of Rs.1,000/-; in default to undergo SI for 3 months.With regard to the offence punishable under Section 379 IPC, he has been sentenced to undergo rigorous imprisonment for 2 years and pay fine in sum of Rs.500/-; in default to undergo SI for 1 month.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 1 of 130Accordingly, with the able assistance of learned Counsel for the State and Sanjay Dass, hereinafter referred to as the accused, we perused the entire evidence led at the trial while hearing the reference and the connected appeal.The accused has murdered the deceased and caused injuries to both his daughters after committing a murderous attack on them.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 6 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 7 of 130PW-8/A of X prepared by Dr.Seema Patni PW-8, the surgeon who operated X records that she had multiple stab injuries on her chest and that ten wounds were found on her person.Seema Patni PW-8, made an endorsement on the MLC Ex.PW-2/A of X to the effect that the injuries found on the person of X are dangerous in nature.Thereafter at about 1.50 A.M. X was examined by Dr.Rakesh Kumar Gupta.The relevant portion of the case note Ex.PW-11/C of X prepared by Dr.Rakesh Kumar Gupta reads as under:-At about 3.15 P.M. Dr.Uma Rani Swain PW-9, conducted the gynaecological examination of X. The relevant portion of the gynaecological examination report Ex.PW-9/A prepared by Dr.Uma Rani Swain reads as under:-".....Local pan examination: Whole pubic area with hair stained with fresh blood, bleeding and oozing from introital injury.Internal examination: fresh injury (cut) in the midline of fourchette bleeding + size 1 cm and 4.5 cm deep, hymen ruptured with multiple small bruises on it.Fourchette cut extends upto hymen.No bleeding from internal pa..."Injured girl Y was also operated upon at Sunder Lal Jain Hospital.Seema Patni PW-8, the surgeon who operated Y records that multiple wounds were found on her face and fingers and that a wound was found on her neck.Thereafter Dr.Seema Patni PW-8, made an endorsement on the MLC Ex.PW-2/B of Y to the effect that the injuries found on the person of Y are simple in nature.Injured girl Y was also examined by Dr.Rakesh Kumar Gupta.The relevant portion of the case note Ex.PW-11/A of Y prepared by Dr.Rakesh Kumar Gupta reads as under:-"L/E D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 9 of 130 Multiple lacerated wound over Ant aspect and lateral aspect of neck.D.Sen.Ref.4/2008 & Crl.D.Sen.Ref.4/2008 & Crl.2 Three bed sheets with blood 3 Hair bunch 4 foot print on rt side bed sheet 5 Blood sample with hair (floor) 6 earth control 7 one plastic print (blood) found on the s/w board in bathroom 8 Blood soaked panty with underwear..... ADVISE TO I/O OF THE CASE1. ........Thereafter he prepared the inquest papers Ex.PW-1/C1 to Ex.PW-1/C11 pertaining to the death of the deceased.It may be noted here that the brief facts Ex.It may be further noted that the death report Ex.PW-1/C9 of the deceased prepared by Inspector Baltej Singh records that the weapon used for committing the death of the deceased was apparently a sharp object.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 12 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 12 of 130Since the deceased was brought dead at the hospital, his body was sent to the mortuary at Aruna Asaf Ali Government Hospital, Sabzi Mandi, Delhi at 11.30 A.M. on 19.10.2006 where Dr.K.Goyal PW-1, conducted the post-mortem and prepared the post-mortem report Ex.PW-1/A of the deceased which records following external injuries on the person of the deceased:-Incised punctured wound 1.8 X 0.5 cm transversally placed over Lt front of neck about 2 cm left to the midline at the level of just below apple of Adam.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 13 of 130On the same day i.e. 19.10.2006 injured girls X and Y were shifted from Sunder Lal Jain Hospital to Apollo Hospital.Rakesh Kumar Gupta prepared the discharge summary Ex.PW-11/B of Y, the relevant portion whereof reads as under:-".....Lacerated wound Neck, fingers following on arm Lt Neck: Multiple lacerated deep wound in the neck Hand: Multiple cut in different fingers Lac from Rt shoulder ......Wounds stitched in layers......."On 19.10.2006 at about 5.15 P.M. X was examined by Dr.Since X was unable to speak as she had undergone tracheotomy in her throat, she wrote her statement Ex.PW-46/A and gave the same to the doctor.The statement Ex.PW-46/A of X reads as under:-I tried to fight.I dont remember his name.I think its Sanjay.A.464/2009 Page 14 of 130A.464/2009 Page 14 of 130After some time Inspector Baltej Singh PW-48, made an application Ex.PW-48/F before CMO, Apollo Hospital, for recording the statement of Y. However, at about 10.45 P.M., the doctor opined that Y is not fit for giving a statement.The doctor made an endorsement on the application Ex.Inspector Baltej Singh PW-48, prepared the site plan of the place of recovery of the said clothes; being Ex.PW-48/I.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 15 of 130Thereafter SI Rishipal PW-34, took the accused to Hindu Rao Hospital where Dr.Rakesh Kumar PW-4, examined the accused.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 16 of 130D.Sen.Ref.4/2008 & Crl.On 23.10.2006 at about 8.00 P.M. Dr Gaurav Singh PW-3, made an endorsement Ex.PW-3/B on the MLC Mark X of X that 'Not fit to talk at present'.On 24.10.2006 at about 12.00 P.M. Dr.Sudha Kansal PW-7, declared X fit to give a statement as evident from the endorsement Ex.PW-7/B made by her on the MLC Mark X of X pursuant to which Inspector Baltej Singh PW- 48, of X under Section 161 Cr.P.C. In her statement X also indicted the accused as the person who caused the death of the deceased; committed rape upon her and inflicted injuries upon her and Y. Additionally, X stated that the accused removed a diamond ring from her finger at the time when he was committing rape upon her.On 24.10.2006 S.S. Rana PW-16, Security Supervisor, Apollo Hospital, handed over the clothes which X and Y were wearing at the time of their admission in Apollo Hospital and D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 19 of 130 the blood sample of X on a gauze to Inspector Baltej Singh PW- 48, who seized the same vide memo Ex.PW-16/A.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 19 of 130On 26.10.2006 Ramesh Kumar Aggarwal PW-10, the father of the children, handed over a torn t-shirt and a pyjama which Y was wearing at the time of the occurrence to Inspector Baltej Singh PW-48, who seized the same vide memo Ex.PW- 10/B.On 30.10.2006 the accused made another disclosure statement Ex.PW-35/A wherein he stated that he removed a ring from the finger of X at the time when he committed rape upon her and that he hid the same in the pocket of the pyjama which he was wearing at the time of the occurrence.Pursuant to the aforesaid disclosure made by the accused, Inspector Baltej Singh PW-48, made an application Ex.PW-36/A dated 31.10.2006 to the FSL for the return of the parcel containing the pyjama which was worn by the accused at the time of the occurrence.It be noted here that the application Ex.PW-36/A records that 'His clothes were sealed on the spot without thorough search as there was no information of any type regarding the said diamond ring at that time.Further more it was apprehended that too much handling/searching of the clothes may disturb evidence........ and blood vigilance stains of procutics and ..... of accused'.V.K.Goyal PW-36, Director, D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 20 of 130 FSL allowed the request of the Investigating Officer as evident from the endorsement Ex.PW-36/B made by him on the application Ex.After the return of the parcel in question by FSL, Inspector Baltej Singh PW-48, checked the pyjama which the accused was wearing at the time of the occurrence in the presence of SI Ramesh Dixit PW-35, upon which a diamond ring was found in the right pocket of the said pyjama.The aforesaid ring was seized vide memo Ex.PW-35/B.On 04.11.2006 Ajay Goel PW-41, Metropolitan Magistrate, conducted the Test Identification proceedings of the ring which was found in the pocket of the pyjama of the accused.X participated in the said proceedings and identified the ring found in the pocket of the pyjama as the ring which was removed by the accused from her finger at the time when he committed rape upon her.Ajay Goel prepared the record Ex.PW-41/B of the said Test Identification proceedings.The aforesaid seized materials viz; two bed sheets, an underwear, a pyjama, a knife, one strand of hair and bunch of hair seized from the room of the children; bed sheet seized from the room of the parents of the children; knife recovered from the bathroom situated near the room of the children; scalp hair, blood sample and clothes of the deceased; pyjama, D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 21 of 130 t-shirt and brassiere worn by X at the time of her admission in Sunder Lal Jain Hospital; underwear worn by Y at the time of her admission in Sunder Lal Jain Hospital; vaginal swabs of X and Y; urinal sample and pubic hair of X; blood which oozed from the vagina of X; pubic hair, scalp hair and the blood sample of the accused; clothes recovered at the instance of the appellant; ring found in the pocket of pyjama of the accused; shirt and pyjama worn by X at the time of her admission in Apollo Hospital; the blood samples of X and Y; clothes worn by the deceased at the time of occurrence and t- shirt and pyjama worn by Y at the time of occurrence were subjected to forensic evaluation at the FSL.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 21 of 130Vide FSL report Ex.PW-37/A, it was opined that blood was detected on the two bed sheets, underwear, pyjama, knife and one strand of hair seized from the room of the children; knife recovered from the bathroom; clothes worn by the deceased at the time of occurrence; pyjama, t-shirt and brassiere worn by X at the time of her admission in Sunder Lal Jain Hospital; underwear worn by Y at the time of her admission in Sunder Lal Jain Hospital; vaginal swabs of X and Y; t-shirt worn by X at the time of her admission in Apollo Hospital and t-shirt worn by Y at the time of occurrence.It was further opined that human semen was detected on the vaginal swabs of X and Y. That the D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 22 of 130 bunch of hair and one strand of hair seized from the room of the children were found to be of human origin and that they were dissimilar in most of their morphological and microscopical characteristics from the hairs contained in exhibit 23 i.e. pubic hair of X and the hair contained in exhibit 24 i.e. the scalp hair of the accused.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 22 of 130A close perusal of the FSL report Ex.PW-37/A shows that 38 parcels were sent by the Investigating Officer to FSL.Out of the said 38 exhibits, 6 exhibits were hairs.Exhibit No.5 was the bunch of hair seized from the room of the children.Exhibit No.6b was one strand of hair seized from the room of the children.Exhibit No.11 was the scalp hair of the deceased.Exhibit 23 was the pubic hair of X. Exhibit 24 was pubic hair of the accused.Exhibit No.25 was the scalp hair of the accused.There is a serious anomaly in the FSL report Ex.PW-37/A. The anomaly is that the FSL report Ex.PW-37/A records that Exhibit No.5/bunch (few strands) of hair seized from the room of the children is dissimilar from Exhibit No.24/scalp hair of the accused.As already noted in para 46 above, exhibit no.24 was pubic hair of the accused and not scalp hair of the accused as recorded in the FSL report Ex.Pubic hair of the accused or scalp hair of the accused? D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 23 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 23 of 130After conducting the said examinations, following conclusions were arrived at by Anita Chhari, which are recorded at page 61 of the record of the FSL:-"i. Exhibit 5 (scalp hair) different from hair in exhibit 23 & 24 (pubic hair)(ii) Only one hair in exhibit 6b & as such no opinion with respect to similarity or otherwise with exhibit 5 can be given.(iii) Exhibit 5, exhibit 11, Ex.25, No opinion is offered whether exhibit 5 is similar with exhibit 11 & Ex.25(i) From morphological and microscopical examination, the hair in exhibit 5, 6b, 11, 23, 24 & 25 were found to be human in origin(ii) Hair in exhibit 5 were found to be dissimilar in most of the morphological & microscopical characteristics with hair in exhibit 23 i.e. Pubic hair of X & exhibit 24 i.e. Pubic hair of accused.(iii) No further opinion."Pursuant thereto, a rough report was prepared recording therein the results of the hair examinations conducted by Anita Chhari and the other examinations conducted at FSL with respect to the case property.The error which occurred was that exhibit 24 was referred to as containing scalp hair of the accused.However, said error was detected and duly corrected.The word scalp was stroked and word pubic was substituted in its place.At the trial, the prosecution examined as many as 48 witnesses.With a view to have clarity in the analysis of the evidence led by the prosecution, we segregate the witnesses of the prosecution into 9 categories, clubbing in one category witnesses who have thrown light on the same issue.We would also be splitting, while noting, the testimonies of the witnesses, whenever required pertaining to the evidence throwing light on different facets/stages of the case of the prosecution.A Witnesses who participated in the preparation of the necessary documents prepared by the police till the FIR was registered: - HC Jai Kumar PW-19, HC Pawan Kumar PW-20, HC Shiv Pratap Singh PW-24 and Const.HC Jai Kumar PW-19, deposed that the entry pertaining to the incident in question was recorded by him in the PCR Form Ex.PW-19/A. HC Pawan Kumar PW-20, deposed that the DD entry Ex.PW-20/A, FIR Ex.B Witnesses who prepared the documents pertaining to the medical condition of the deceased, X and Y:- Dr.K.Goyal PW-1, Dr.M.Arshad PW-2, Dr.Gaurav Singhal PW-3, Dr.Rakesh Kumar PW-4, Dr.A.464/2009 Page 30 of 130 That she made the endorsement Ex.PW-8/B on the MLC Ex.PW- 2/B of Y and prepared the treatment record Ex.PW-8/C of Y.PW-9/C to the police.Santosh Kumar Upadhyaya PW-11, deposed that he is working as Record Clerk at Sunder Lal Jain Hospital and that the case note Ex.PW-11/A of Y, discharge summary Ex.PW-11/C of X were prepared by Dr.Rakesh Kumar Gupta.That Dr.PW-36/B on the said application allowing the return of the said application.A.464/2009 Page 34 of 130 save herself by taking a turn.The accused inflicted several knife blows on her body.The accused also gave knife blows on the neck and back of X. The accused removed the under pant of X as also his clothes.Thereafter the accused committed bad act with X. The accused made X to lie on her bed and again committed bad act with her.(The witness explained the meaning of bad act by stating that (Quote) 'By bad act I mean that he laid himself on my sister'.) The accused placed his fingers on the nostrils of X to ascertain if she was breathing or not and went out of the room.After a while X asked her to call their mother but she did not go as she was scared.After sometime X herself went to room of their parents by crawling on the floor.On the way to hospital I was accompanied by my first floor neighbour Sh.Gurmeet Singh.' On being questioned about the knife which was stuck in the neck of the deceased the witness stated that (Quote) 'I had removed the knife from the neck of my son and the same was left at the spot.That knife remained on the spot when I left for D.Sen.Ref.4/2008 & Crl.The accused was also present in their bedroom up till 11.00 P.M. and thereafter he also left from there.The accused used to sleep in a room built on the roof of their house.At about 12.40 AM she heard the noise that of light being switched on upon which she woke up and saw that X was smeared with blood and was not having any undergarments on her person.She woke up her husband and made X to lie on her bed.X told her that she has been assaulted by the accused.In the meantime Y also came there and told her that the accused has stabbed D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 41 of 130 her, X and the deceased.On hearing the same, she and her husband rushed to the bedroom of the children where they saw that a knife is stuck in the neck of the deceased.Her husband pulled out the knife from the neck of the deceased.They raised an alarm.She and her neighbours put on the clothes on the person of X and removed the children to Sunder Lal Jain Hospital.On the intervening night of 18.19/10.2006 at about 12.20 PM or 12.30 PM he was about to go to sleep when he heard some noise but he ignored the same.After a while he heard a voice saying that my children have been caused injuries.I remained in the hospital only for 5 D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 44 of 130 minutes.When I returned back to the house I saw the police officials, present there.'D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 44 of 130D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 45 of 130As per the said register, a female D.Sen.Ref.4/2008 & Crl.D.Sen.Ref.4/2008 & Crl.Believing the evidence of X PW-21 and Y PW-22, to be creditworthy, the learned Trial Judge has convicted the accused of having murdered the deceased, attempted to murder X and Y and raped X. With respect to the charge under Section 392 IPC framed against the accused, the learned Trial Judge has held that since there is no evidence to show that the accused used force to remove the ring from the finger of X he cannot be convicted for the offence of having committed robbery of the ring of X. The learned Trial Judge held that the accused is guilty of committing theft of the ring of X, an offence punishable under Section 379 IPC.(We shall be noting the reasoning of the learned Trial Judge with regard to imposition of death penalty on the accused in the later part of this judgment).At the hearing, numerous arguments were advanced by the learned counsel for the accused, which arguments can be divided into following two categories:-A.464/2009 Page 53 of 130 the trial court shows that the lawyer appointed by the trial court to defend the accused defended the accused in a most slipshod manner inasmuch as he did not appear before the trial court on many dates and did not subject witnesses of the prosecution to any cross-examination.PW-27/A and FSL report Ex.PW-37/A. Counsel urged that the recordings contained in the PCR form Ex.PW-19/A and DD entry Ex.PW-37/A that semen was detected on the vaginal swabs of both X and Y establishes that both the girls had sexual intercourse on the date of the offence.PW-19/A. Counsel urged that the gap of 35 minutes between the time of reaching of Gurpreet Singh at the place of occurrence and time of his informing the police about the incident shows that the parents of the children and Gurpreet Singh bought time to decide a strategy as to what should have been told to the police before conveying information of the incident to the police.The reason given by Inspector for seeking the remand of the accused was that the accused is required to be interrogated to ascertain the source of knife used by him for committing the offence.PW-6/A dated 20.10.2006 and 22.10.2006 respectively record the age of the accused as 22 years.The report Ex.PW- 12/A of the sexual examination of the accused dated 20.10.2006 records the age of the accused as 20 years.The report further records that the accused is married and is father of a female child.It can again be assumed D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 66 of 130 without any doubt that the aforesaid submission would have been made by the counsel on the basis of the information provided to him by the accused.Considering the aforesaid recordings and the fact that the accused was married and was having a female child on the date of offence, we hold that the accused was aged 19-20 years on the date of offence.We may hasten to add that the accused has very cleverly not informed about the date and the year of his birth or the place of his birth, thereby preventing an investigation into the primary facts with reference to the record of the Registrar of Births and Deaths or the village panchayat, depending upon whether the accused was born in a rural or an urban area.This has also prevented the issue to be investigated by examining the parents of the accused.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 65 of 130The case was adjourned to 23.02.2007 for hearing of arguments on framing of charges against the accused.On 23.02.2007 the arguments on framing of charges against the accused were D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 67 of 130 heard and the case was adjourned to 06.03.2007 for order on charge.On the next dates i.e. 06.03.2007 and 08.03.2007 the case was adjourned.On 09.03.2007 charges were framed against the accused.The accused pleaded not guilty to the charges framed against him and the case was adjourned to 18.04.2007 for the recording of prosecution evidence.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 67 of 130On 18.04.2007 three witnesses namely K.Goyal PW-1, Dr.M.Arshad PW-2 and Dr.Gaurav Singhal PW-3 were examined.It be noted here that counsel for the accused was not present in the court on the said date and therefore the witnesses could not be subjected to cross-examination.The case was adjourned to 16.05.2007 for recording of the remaining prosecution evidence.On 16.05.2007 the witnesses; Dr.Rakesh Kumar PW-4, Gurpreet Singh PW-5 Dr.Hari Gupta PW-6, Dr.Sudha Kansal PW-7, Dr.Seema Patni PW-8 and Dr.Uma Rani Swain PW-9 were examined.The said witnesses were not subjected to any cross- examination by counsel for the accused.It is most relevant to note here that the witnesses examined till this time were formal witnesses.None of the said witnesses deposed anything which was incriminatory to the accused in the present case.On the same date Gurpreet Singh PW-5, the neighbour of the children, was examined.He was the first witness whose evidence incriminated the accused in the D.Sen.Ref.4/2008 & Crl.At the time of the cross-examination of the witness, the accused pleaded guilty to the charges framed against him.He also filed an application in said regard and the same was taken on record by the trial court.The witness was not subjected to any cross-examination by counsel for the accused.Thereafter the witnesses; Ramesh Kumar Aggarwal PW-10 and Santosh Kumar Upadhyaya PW-11 were partly examined and the case was adjourned to 26.05.2007 for recording of the remaining prosecution evidence and the accused was directed to rethink over the guilty plea taken by him.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 68 of 130On 26.05.2007 the examination-in-chief of the witnesses; Ramesh Kumar Aggarwal PW-10 and Santosh Kumar Upadhyaya PW-11, was completed and the other witnesses Dr.The said witnesses were not subjected to any cross-examination by counsel for the accused.The accused filed a second application pleading guilty to the charges framed against him.On the next dates the case was adjourned.Thereafter on 13.09.2007 witness namely HC Jai Kumar PW-19 was examined.It be noted here that counsel for the accused was not present in the court on the said date.The case was D.Sen.Ref.4/2008 & Crl.On 27.09.2007 S.K.Jha, Advocate appraised the court that he does not want to defend the accused and in such circumstances, Mr.K.S.Rana, Advocate was appointed as counsel for the accused.On 01.11.2007 witnesses; HC Pawan Kumar PW-20 and X PW-21 were examined.X PW-21, was cross-examined at length whereas HC Pawan Kumar was not subjected to any cross-examination by counsel for the accused.On 2.11.2007 and 03.11.2007 Y PW-22 and Nirmala Aggarwal PW-23 were examined and subjected to a lengthy cross-examination.Thereafter on 3/4/5/6/7.12.2007 the witnesses; HC Shiv Pratap Singh PW-24, Const.Tejpal PW-25, ASI Manish Kumar Bhardwaj PW-26, SI Ajay Kumar PW-27, HC Yogender PW-28, Inspector Vimal Kishore PW-29, HC Sanjay PW-30 and Const.Ramesh Chand PW-31, were examined and subjected to cross-examination.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 69 of 130On 07.12.2007 counsel for the accused requested the trial court to allow him to cross-examine Ramesh Kumar Aggarwal PW-10, which request was accepted by the trial court and Ramesh Kumar Aggarwal was recalled.On the same date, counsel for the accused cross-examined Ramesh Kumar Aggarwal.On the next dates i.e. 16/17/18.01.2008 the witnesses; HC Rajpal PW-32, HC Tejpal PW-33, SI Rishipal Singh PW-34, SI D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 70 of 130 Ramesh Dixit PW-35, Dr.V.K.Goyal PW-36, Anita Chhari PW-37 and SI Manohar Lal PW-38 were examined and subjected to cross-examination.On 17.01.2008 the accused filed third application pleading guilty to the charges framed against him.Vide order dated 17.01.2008 the trial court rejected all the applications filed by the accused pleading guilty to the charges framed against him.On the same date, counsel for the accused filed an application before the trial court seeking recall of the witnesses; Gurpreet Singh PW-5 and Prem Prakash Aggarwal PW-17, which application was allowed by the learned trial court.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 70 of 130On 02.02.2008 the witness; SI Dharampal PW-40 was examined and subjected to cross-examination.On the next date i.e. 04.02.2008 the witnesses; Gurpreet Singh PW-5 and Ramesh Aggarwal PW-17 were cross-examined by counsel for the accused.On the next date i.e.03.03.2008 the accused filed an application before the trial court seeking transfer of his case from the court which was dealing with his case to another court on the ground that the court which is dealing with his D.Sen.Ref.4/2008 & Crl.In such circumstances, the matter was placed before District and Sessions Judge.On the same date, District and Sessions Judge sent the matter back to the concerned court in view of the submissions made by counsel for the accused that he does not want the case to be transferred to another court.On the next date 04.03.2008 the witness namely Ajay Goel PW-41 was examined and subjected to cross- examination.The accused filed yet another application pleading guilty to the charges framed against him, which application was again rejected by the trial court.On the next dates the witnesses HC Arun Kumar PW-42, Geeta Arora PW- 43, Santosh Kumar PW-44 and Dr.Urvashi Prasad Jha PW-46 were examined and subjected to cross-examination.On 03.05.2008 the accused filed an application before the trial court for taking on record his confessional statement recorded by Metropolitan Magistrate under section 164 Cr.P.C., which application was dismissed by the trial court.On 13.05.2008 Inspector Baltej Singh PW-48 was examined and subjected to cross-examination.The evidence of the prosecution was closed by the prosecutor.On 02.07.2008 the statement of the accused was recorded under Section 313 Cr.P.C. wherein he virtually admitted all the incriminating D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 72 of 130 circumstances appearing against him.Thereafter the case kept on getting adjourned.On 24.09.2008 after a perusal of its order sheets the trial court found that the witnesses; K.Goyal PW-1, Dr.M.Arshad PW- 2 and Dr.Gaurav Singhal PW-3 and Dr.Rakesh Kumar were examined in the absence of counsel of the accused.(It may be noted here that learned trial court has wrongly noted that Dr.Rakesh Kumar PW-4 was examined in the absence of counsel of the accused.In that view of the matter, trial court gave an opportunity to the counsel for the accused to recall the said witnesses for cross-examination, which opportunity was not availed by counsel on the ground that the said witnesses were formal witnesses.Thereafter the arguments were heard and D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 73 of 130 the court passed the impugned judgment and order on sentence.The learned trial court gave an opportunity to counsel for the accused to recall and cross-examine the witnesses who were examined in the absence of defence counsel.Whether a conclusion can be drawn from the PCR Form Ex.PW-19/A, DD entry Ex.PW-27/A that the offence was committed by more than one person?Generally, the process of criminal law sets into motion when the informant rings up number 100 and the said call is received at the police control room which is centralized.The duty officer at PCR thereupon notes the information provided D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 78 of 130 by the informant in the PCR form and conveys the said information either over the telephone or wireless to the concerned police station where the duty officer notes down the same in the DD register.The error which crept in the PCR form Ex.PW-19/A was bound to occur in the DD entry Ex.PW-20/A as the DD entries are prepared on the basis of the information recorded in the PCR form.PW-9/B of gynecological D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 79 of 130 examination of Y records that hymen of Y was found intact.The question which thus arises is that how come semen was found on vaginal swab of Y when she was not subjected to sexual intercourse?D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 79 of 130The answer to the aforesaid question lies in the testimony of X and Y. As already noted herein above, both X and Y deposed that the accused asked Y to remove her pant.Y stated in her cross-examination that she sat on the bed on which the accused raped X. These two depositions explain the presence of semen on the vaginal swab of X. Though it is not clear from the testimony X and Y whether Y did remove her pant or not the fact, that semen was found on her vaginal swab shows that Y did remove her pant.The fact of the matter is that Y removed her pant as directed by the accused and sat on the bed on which the accused raped X after removing her pant.The semen of the accused fell on the bed sheet spread on the said bed and the vagina of Y got stained with the semen which had fallen on the bed sheet as she was sitting on the said bed and her private parts were not covered by any cloth.Pertaining to the submission that the parents of the children and Gurpreet Singh bought time before conveying information of the incident to the police, it be noted here that X deposed that at around 12.00 A.M. on 19.10.2006 she heard D.Sen.Ref.4/2008 & Crl.It depends on the time-sense of individuals which varies from person to person.Where was the time for X and Y to comprehend that the accused has left their room and that they should rush to the room of their parents in the absence of the accused?This takes us to the next two submissions advanced by the learned counsel predicated upon the statement Ex.PW- 46/A of X. X was seriously ill at the time when she wrote her statement Ex.PW-46/A. She had undergone tracheotomy and D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 86 of 130 the tracheotomy tube was still inside her neck.It is most reasonable to assume that the mental faculties of X were slow at that time because of which she took some time to remember the name of the accused.What is significant to note that X was able to correctly state that the name of the accused was Sanjay, that he was their domestic servant and that he was working in their house since last one week even when she was seriously ill.Far from showing that X was tutored to falsely implicate the accused statement Ex.PW-46/A goes a long way in showing that X spoke the truth at the first available opportunity.The accused was armed with a knife.The children were caught unawares as the accused attacked them while they were sleeping.The accused was under a fit of rage.He was inflicting injuries on X when she was trying to stop him.X was badly injured by the accused.X was defenceless.In these circumstances could X have managed to injure the accused? The answer is an emphatic NO.The next question which has arisen is that whether the conduct of the mother of the children in going with the police to look for the accused too soon after the occurrence can be D.Sen.Ref.4/2008 & Crl.Different people react differently in similar situations.In the facts of the present case it is completely comprehensible that the mother of the children was filled with fury against the accused and that her anger for the accused outweighed her other emotions.We find nothing unnatural in the conduct of mother of the children in assisting the police in arresting the deceased too soon after the occurrence.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 87 of 130Whether the knives seized by the police from the place of occurrence were planted?It is no doubt true that the brief facts Ex.PW-1/C8 pertaining to the death of the deceased records that one knife was recovered from the place of occurrence.What is equally relevant to note is the fact that the other documents which were prepared contemporaneously with the brief facts Ex.PW- 1/C8 record that two knives have been recovered from the place of occurrence.The crime team report Ex.PW-27/A records that two knives were recovered from the place of occurrence.The photographs of the place of occurrence show the presence of two knives at the place of occurrence.The police officials who participated in the spot investigation have deposed that two knives were recovered from the place of occurrence.Nirmala Aggarwal PW-23, has deposed about the presence of two knives at the place of occurrence.In the light D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 88 of 130Though the fact that two knives were recovered from the place of occurrence indicates that the weapon of offence was knife, but the same was not a conclusive proof.The picture would have come out clearly only after the post-mortem of the deceased.The investigating officer wanted to be completely sure that the knife was the weapon of offence and therefore he did not record in the death report that the knife was the weapon of the offence.But at the same time it is also worth mentioning that the witness stated in his cross- examination that 'I had removed the knife from the neck of my son and the same was left at the spot.That knife remained on the spot when I left for the hospital.I did not find that knife there in my house when I came back at 10.00 am from the hospital'.A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment.A cumulative reading of the aforesaid deposition made by Rakesh Kumar Aggarwal PW-10, shows that he got carried away while deposing facts and imagined that the knife which was stuck in the neck of the deceased was taken away by the accused.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 89 of 130To deal with the submission predicated upon the deposition of Gurpreet Singh PW-5, relating to the knives recovered from the place of occurrence, it is necessary to closely scrutinize the evidence of Gurpreet Singh.Gurpreet Singh PW-5, deposed that he went to the room where the occurrence took place but did not see any knife there.He stated in his cross-examination that he went to the said room after the arrival of the police at the place of occurrence.The powers of observation differ from person to person.What one may notice, another may not.An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.D.Sen.Ref.4/2008 & Crl.Having given no opportunity to the witnesses to explain the circumstance pertaining to lifting of finger prints from the knives in question no adverse inference can be taken against the prosecution.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 91 of 130There must have been mayhem at the place of occurrence after the incident.Inspector Vimal Kishore deposed that he along with HC Yogender left Delhi at about 04.00/04.30 A.M. on 19.10.2006 to go to Rishikesh to arrest the accused.It is thus apparent that an innocuous error has been committed by HC Yogender in deposing the time when the police party left Delhi to go to Rishikesh to arrest the accused.PW-2/B of Y. The endorsement dated 19.10.2006 made on the application Ex.The eighth feature is that the parents of the children deposed that X and Y deposed that immediately after the occurrence X and Y came to their room and told them that the accused has committed the crime.It is also relevant to note that Gurpreet Singh PW-5 deposed that he went to the place of occurrence on hearing the alarm raised by the parents of the children, which alarm was raised by them soon after the occurrence.A.464/2009 Page 126 of 130Following aggravating circumstances have been noted by the trial court against the appellant:-The accused is acquitted of the offence punishable under Section 379 IPC for the reason we have found a taint in the manner the ring has been recovered as discussed in para 144 above.D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 129 of 130

Relevant sections: Section 307 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 379 in The Indian Penal Code; Section 300 in The Indian Penal Code; Section 376 in The Indian Penal Code; Section 392 in The Indian Penal Code; Section 397 in The Indian Penal Code; Section 326 in The Indian Penal Code; Section 304 in The Indian Penal Code; Section 313 in The Indian Penal Code; Section 323 in The Indian Penal Code; Section 320 in The Indian Penal Code; Section 324 in The Indian Penal Code