Crl.A. 635/2007 & Death Ref. 2/2007 Page 1 of 59 * IN THE HIGH COURT OF DELHI % Judgment reserved on: 27.07.2009 Judgment delivered on: 06.08.2009 + CRL. APPEAL 635/2007 RAJESH KUMAR …Appellant Through : Ms.Vasudha V.Indurkar, Advocate. versus STATE (GOVT. OF NCT OF DELHI) …Respondent Through : Mr.Pawan Sharma, APP. DEATH SENTENCE REF. NO.2/2007 STATE : Through : Ms.Richa Kapoor, APP. AND RAJESH KUMAR : Through : Ms.Vasudha V.Indurkar, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. This Court has received a Death Reference for confirmation of the death sentence inflicted upon the accused Rajesh Kumar. Rajesh Kumar has also filed an appeal challenging the judgment and order dated 12.3.2007 Crl.A. 635/2007 & Death Ref. 2/2007 Page 2 of 59 convicting him for the offence of having murdered Master Anshul aged 4½ years and Master Harshit aged 9 months. The unfortunate boys were the children of Mukesh Sethi and Sangeeta Sethi. We shall refer to Rajesh Kumar as „The appellant‟. The appellant is the husband of Alka who is the unfortunate sister of Mukesh Sethi. In other words, the appellant has been convicted for murdering the nephews of his wife. 2. The entire evidence against the appellant finds mention in the statement Ex.PW-1/A of Sangeeta PW-1, which is the First Information given to the police on the basis of which the FIR has been registered, as also the endorsement Ex.PW-32/A made by Inspector Ram Chander PW-32 under the said statement, which was dispatched from the place of occurrence at 6:30 PM for the FIR to be registered. 3. The statement Ex.PW-1/A reads as under:- “I have been residing at 2/129, II floor, Subhash Nagar, New Delhi with my family members for last 7-8 months. Before that I was residing in a flat provided by the corporation at Ashok Nagar. Smt.Alka Dhingra was also residing there in the neighbour hood. Smt Alka Dhingra and her husband Rajesh Dhingra ofter visited us even after our shifting to the present address. Today i.e.28.7.2003, I was present at my house and both my children Anshul aged 4 ½ years and Harshit aged about 9 months had slept around 2.30PM. at about 3:00 PM my brother-in-law(husband of the sister of my husband) Rajesh Kumar s/o Raj Kumar, r/o 53/16 Ashok Nagar came to my house and demanded water from me. I gave him water whereupon he asked for more water and requested me to cook food for him as Crl.A. 635/2007 & Death Ref. 2/2007 Page 3 of 59 he was feeling hungry. When I was about to go to the kitchen for cooking food when my younger son got up and I held him in my arms whereupon Rajesh suggested me to give him the child and asked me again to cook food quickly. Then I went to kitchen but my son kept on crying. Then I came back to bedroom from kitchen and witnessed that Rajesh had lifted my son by securing his feet and hit him against the floor. I took away my child from him. Though he attempted to snatch my son from me but I managed to take him to my neighbour and raised an alarm. My neighbour Pinki who resides in House no.2/130, took my son downstairs. Then, Rajesh bolted the door of the bed room from inside. I could only hear the scream of my elder son to the effect “maa, maa”. But, subsequently I could not hear anything. In the meantime, our neighbours Bahadur Singh, Preetam Das Negi and other persons had come up stairs. The police also arrived there. They tried to get the door open but Rajesh did not open. On peeping inside the bed room through the ventilator, Rajesh was found standing in the room whereas my son Anshul was found lying in a pool of blood. Then the police broke open the door and overpowered Rajesh. Rajesh broke the glass of dressing table and slit open the throat of my son with a piece of the glass. My son died on the spot. My younger son has been removed to the hospital for treatment. Rajesh committed the murder of my son in order to teach a lesson to my sister-in-law (husband‟s sister).” 4. The endorsement Ex.PW-32/A reads as under:- “While on official duty and on getting wireless message, I, inspector Ram Chander alongwith my staff SI Vijay Pal and Ct. Kamal reached house number 2/129, Subhash Nagar, New Delhi i.e. the place of occurrence by an official vehicle and found ASI Jagpal Singh already present there alongwith HC Naresh and Ct. Dinesh. After going upstairs on the second floor of the house, Ct. Dinesh and Ct. Sukhbir Singh produced to me one person namely Rajesh Kumar, son of Raj Kumar, resident of 53/16, Ashok Nagar, Delhi who was already nabbed just on the spot. They also stated that they have broken open the door of the bed room, over powered Rajesh and the dead body of a boy named Anshul is lying there. At this I the inspector moved Crl.A. 635/2007 & Death Ref. 2/2007 Page 4 of 59 ahead and saw inside the room from its door and found the dead body of a boy namely Anshul lying in a pool of blood on the floor near the door. His throat was found slit open and he was wearing a white vest. The glass of the dressing table which was kept near the dead body was also found broken and the pieces thereof were found scattered near the dead body. Some of the pieces were stained with blood. Blood stains were also splattered over the wall. It appears from the scene of crime that the accused having broken the glass of dressing table committed the murder of child Anshul by slitting his throat with a piece of glass. The other child Harshit aged 1 year has already been removed to the hospital. After having left the staff at the spot, I, the inspector alongwith SI Inder Singh reached Chanan Devi hospital, Janak Puri and found a small kid, Harshit son of Mukesh Sethi, resident of 2/129 Subhash Nagar admitted in the hospital vide MLC No. 593 dated 28.7.2003. after obtaining MLC, I the inspector returned to the spot where the complainant Smriti Sangeeta Sethi came across me and got her foregoing statement recorded. The contents of the aforesaid statement, inspection of the dead body, perusal of MLC and the spot reveal the commission of an offence punishable under Section 302/307 IPC. Hence, the writing is being got sent to the police station through Const.Kamal No.1619/W for the purpose of the registration of a case (FIR). After registration of a case, its number may please be communicated. The higher authorities and crime team have already arrived at the spot. The special report may be sent to the concerned officers through special messenger. I, the inspector am busy with the investigation at the spot. Date and hour of occurrence : 28.7.2003 At 3:15 PM.” 5. We commence our narratives from the beginning. As recorded in the PCR Form Ex.PW-27/A, the duty officer in the Police Control Room received a call from a number 20056630 at 15:38 hours on 28.7.2003 informing that a man has entered a house in Subhash Nagar and had assaulted two Crl.A. 635/2007 & Death Ref. 2/2007 Page 5 of 59 children and had locked the door from inside. Another call was made to the Police Control Room over mobile No.9810458303 as recorded in the PCR Form Ex.PW-31/A noting that the informant had informed that a man had murdered two children inside House No.2/129 Subhash Nagar near Arya Samaj Temple. 6. Each time, on receipt of afore-noted information, the duty officer at the police control room relayed the information to the concerned police station i.e. PS Rajouri Garden, where the duty constable recorded the said information by way of entries in the daily diary register, being DD No.11, Ex.PW-16/A at 3:35 PM and DD No.12, Ex.PW-16/B at 3:50 PM. 7. ASI Jagpal PW-22 was handed over a copy of both the DD entries and was deputed to investigate. He took along with him HC Naresh PW-19 and Const.Sukhbir PW-24. The three police officers reached House No.2/129 Subhash Nagar. A crowd had gathered outside the house. Mr.Bahadur Singh PW-4 a resident of House No.2/130 Subhash Nagar i.e. the immediate neighbour and one Mr.Negi (not examined as a witness), were present in the gathering and told the police officers that the assailant had locked himself in a room on the second floor of House No.2/129 Subhash Nagar. The officers climbed up the staircase and reached the second floor and Crl.A. 635/2007 & Death Ref. 2/2007 Page 6 of 59 knocked at the door. The man inside did not oblige. The three police officers had a peep inside through the ventilator above the door and were horrified to see the body of a male child, smeared with blood and the neck badly cut. Blood was splattered all over the room. They had no option but to break open the door and apprehend the man inside who was none else but Rajesh Kumar, the appellant. 8. Inspector Ram Chander PW-32, the SHO of PS Rajouri Garden, was conveyed the information about a man killing two children on the second floor of House No.2/129 Subhash Nagar. He reached the house and by that time the appellant had been apprehended by ASI Jagpal Singh, HC Naresh and Const.Sukhbir. 9. The scene at the house was chaotic. The lady of the house Sangeeta Sethi was dumbfounded. She was hysterical and crying bitterly. She was in no state to be questioned. Except to grieve over the death of her young son and be concerned about the life of the other who had been removed to the hospital, the unfortunate mother could render no immediate assistance to the police. Of course, she was not expected to be concerned with the procedures of the law. Her concern was her younger son Harshit who had already been removed to the hospital by Sanjeev Narula PW-5, who is the Crl.A. 635/2007 & Death Ref. 2/2007 Page 7 of 59 elder brother-in-law of Mukesh Sethi, the husband of Sangeeta Sethi. 10. On learning that Harshit had been removed to Chanan Devi Hospital, Insp.Ram Chander went to the hospital and learnt that Harshit was in an unconscious state. He collected the MLC Ex.PW-8/A of Harshit and returned to the spot. 11. By this time Sangeeta had somewhat regained her composure. She told as to what had happened. Her statement Ex.PW-1/A was recorded. If correct, which evidences that being the husband of her sister-in-law, Sangeeta welcomed the appellant when he reached her house and as he demanded water to quench his thirst, she gave him a glass of water and on his expressing a desire to feed his hunger, she proceeded to the kitchen to bring food. Her two sons Master Anshul and Master Harshit were sleeping in the room. As the mother left, Master Harshit awoke from his sleep and started crying. Rajesh Kumar told her that he would comfort the child. Assured that her young son was in the safe, warm and loving hands of his uncle, unaware of the impeding danger to her children, Sangeeta proceeded to the kitchen but returned without the food because the cries of her child Harshit did not stop and probably she thought that she should first comfort her son. What she saw when she took the first Crl.A. 635/2007 & Death Ref. 2/2007 Page 8 of 59 step inside her living room was horrific. Rajesh Kumar had her son Harshit in his hands, but not in the comforting hands of an uncle but the destructive hands of a demon. Rajesh Kumar was holding the child from the feet and within a flash smashed the child, head down, on the floor. The child yelled, howled and screamed. Sangeeta rushed to snatch her child from the destructive hands of Rajesh Kumar, who made an attempt to once again smash the head of the child on the floor. Sangeeta managed to snatch Master Harshit from the hands of Rajesh Kumar. Instinctively, she rushed to the door. She yelled and cried for help. Pinki PW-3 a resident of the second floor of the neighbouring building was the first person to be seen by Sangeeta. The child i.e. Master Harshit was handed over by Sangeeta to Pinki. Events continued. The devil in the appellant was at work. To the utter disbelief, horror and shock of Sangeeta and Pinki, the door of the living room was locked from inside and Sangeeta could hear the frantic and desperate cries of her second son viz. Anshul who was crying „Ma Ma‟ (mother mother). Suddenly, there was a deafening silence. The cries of the young child were heard no more. He was killed inside the room. The weapon was a broken piece of glass picked up after breaking the dressing table glass inside the living room. Crl.A. 635/2007 & Death Ref. 2/2007 Page 9 of 59 12. Inspector Ram Chander recorded the statement Ex.PW-1/A of Sangeeta Sethi and made an endorsement Ex.PW-32/A on the same. He sent the same through Const.Kamal at 6.30 PM for registration of an FIR. HC Rajesh Tyagi PW-17, the duty officer at PS Rajouri Garden, recorded the FIR Ex.PW-17/A at 6:50 PM on basis of the statement of Sangeeta Sethi and sent a copy of the FIR back to the spot with Const.Kamal. Const.Amarender PW-8 was handed over the FIR to be delivered to the Area Magistrate and he left the police station at around 7:20 PM and returned at 10:10 PM. 13. At the spot, the crime team, consisting of SI Manoj Kumar PW-15 (a finger print expert) and Const.Ram Niwas PW- 14, a photographer also reached. SI Manoj Kumar inspected the site and lifted three chance prints Q-1, Q-2 and Q-3 from a broken pieces of glass in the room. Const.Ram Niwas took 27 photographs Ex.PW-14/A-1 to Ex.PW-14/A-27 of the spot from different angles; negatives whereof are Ex.PW-14/B-1 to Ex.PW-14/B-27. 14. From the room in which the dead body of Anshul was lying, Inspector Ram Chander seized a broken piece of glass Ex.P-1 which was lying on the chest of Anshul, as recorded in Ex.PW-2/A. He further seized glass pieces Ex.P-3 scattered near Anshul, a pair of blood stained chappals Ex.P-2 and the blood lying on the spot on a gauze as recorded in the Crl.A. 635/2007 & Death Ref. 2/2007 Page 10 of 59 seizure memo Ex.PW-2/B. A titan make wrist watch Ex.P-8 lying in the room stated to be belonging to the accused as also a Bajaj Chetak scooter having registration No.DL-4SL-2434 parked outside the house also stated to be belonging to the appellant were seized as recorded in Ex.PW-2/C and Ex.PW- 2/D. The rough site plan Ex.PW-32/B was prepared noting the spots from where pieces of broken glass, the dead body of Master Anshul were lifted as also the dimensions of the room. 15. Even police officer who had reached for investigation and were men of steel with strong emotions, found their composure abandoning them. So horrifying and diabolic was the manner of the crime that even they thought that no sane person was capable of acting with such extreme brutality, cruelty and bestiality. The appellant is the son-in-law of the family. They could never imagine that sharing such a close bond with the family, the appellant could act thus if he was in his senses. In all fairness to the appellant the investigating officer called for a psychiatrist namely Dr.Rajat Mishra PW-7, who did not find an abnormality in the behavior of the appellant wherefrom he could be certified as an insane person. His report pertaining to the mental condition of the appellant, Ex.PW-7/A was furnished. 16. The dead body of Master Anshul was seized and sent to the mortuary of DDU Hospital where Dr.Lalit Kumar Crl.A. 635/2007 & Death Ref. 2/2007 Page 11 of 59 PW-13 conducted the post-mortem and gave his report Ex.PW- 13/D recording therein the following external injuries: “1. Incised wound (1 x 0.5 cm x chip to bone) Lt. to midline on forehead 2 cm above the medial end of Lt eyebrow and is place vertically and its margin is clear, regular and sharp. 2. Bluish red contusion (4 cm x 2 cm) on Lt side of forehead 1.5 cm above Lt eyebrow. 3. Incised wound linear immature (2.5 cm) placed vertically oblique. 4. Incised wound (4 cm x 1.5 cm x chip to bone) on occipital region of head (occipital protuberance) and is placed horizontally and margins are regular. 5. Incised wound (1 x 0.5 cm x chip to bone) on Lt parietal protuberance and placed vertically and margins are regular and clear. 6. Incised wound (2 cm x 0.5 cm x chip to bone) 2 cm above the injury No.5 in Lt parietal region and margins are regular, sharp and clear. 7. Incised wound (9 cm x 7.5 cm x chip to cervical spine) on Lt side of neck in front and is place obliquely and extending from angle of mandible on Lt side to suprasternal mortem expansion all underlying muscle/vessel/arms. 8. Incised wound (3 cm x 1 cm x chip to bone) on back of Lt elbow joint. 9. Linear incised wound (2 cm in length) on Rt shoulder in front and is placed obliquely. 10. Incised wound (2.5 cm x 1.5 cm x 1 cm) 1.5 cm below the linear border of mandible on Lt side and in front and below the chin nave on Lt side and is placed horizontally. The margin of wound are clear, regular and sharp. 11. Bluish red contusion (6 cm x 6 cm) on Lt side of mear anterior axillary fold on Lt axilla.” Crl.A. 635/2007 & Death Ref. 2/2007 Page 12 of 59 17. He opined that Anshul had died due to haemorrhagic shock occasioned by the cutting of his juggler vein and blood vessels. He opined that injuries 4 to 7 were collectively sufficient to cause instant death. After the post- mortem Dr.Lalit Kumar handed over the white sandoz vest on the body of Harshit as also his blood sample on a piece of gauze which were seized as recorded in the memo Ex.PW- 30/A. 18. The investigation being complete; the appellant being found not to be insane, the police personnel left for the police station. The appellant was formally arrested as recorded in the arrest memo Ex.PW-32/F at 10:00 PM. His shirt Ex.P-5 and his pant Ex.P-4 which were stained with blood were seized as recorded in the memo Ex.PW-12/A. 19. At the police station the investigating officer obtained the specimen finger prints Ex.PW-23/C of the appellant. 20. Unfortunately Master Harshit could not survive and died the same night. This information being made available to the investigating officer he proceeded to the hospital where Harshit died. The dead body was seized and sent for post- mortem to DDU Hospital where Dr.Lalit Kumar conducted the Crl.A. 635/2007 & Death Ref. 2/2007 Page 13 of 59 post-mortem and prepared the report Ex.PW-13/C recording therein the following 6 injuries on the body of the young boy:- “1. Contusion bluish red in colour (4 cm x 3 cm) on Rt side of forehead. 2. Bluish red contusion (3 cm x 2 cm) on Lt side forehead. 3. Bluish red contusion (5 cm x 3 cm) on Rt temporal region. 4. Bluish red contusion (1.5 x 1 cm) in uppermost part of Rt ear pinna. 5. Bluish red contusion (5.5 cm x 3.5 cm) on Lt temporal region. 6. Bluish red contusion (3.5 x 2.5 cm) on Rt side of occipital region.” 21. He opined that death was caused due to laceration of the brain and internal haemorrhage. After the post-mortem a sandoz vest worn by Anshul and his blood sample on a piece of gauze was handed over as recorded in the memo Ex.PW- 30/B. 22. The investigating officer recorded the statement of Pinki PW-3, Bahadur Singh PW-4, Sanjeev Narula PW-5, Mukesh Sethi PW-2, Charanjeet Singh PW-11 and Sukhvinder Singh PW- 10. Each informed the police officer of the time they reached the house where the crime took place and the circumstances under which they reached as also what they saw. 23. The blood stained vests of Harshit and Anshul as also their blood sample handed over by Dr.Lalit Kumar after Crl.A. 635/2007 & Death Ref. 2/2007 Page 14 of 59 the post-mortem; the blood stained shirt and pant of the appellant as also the blood stained articles which were lifted from the room were sent to a serologist at the Forensic Science Laboratory and the report Ex.PW-34/B was obtained by the investigating officer as per which blood group of Anshul was opined to be of group „AB‟. The glass pieces and the swab containing the blood lifted from the room were detected with the presence of human blood of group „AB‟. Human blood of same group was detected on the pant and shirt of the appellant as also on the vest of Master Anshul. The blood group of Master Harshit was detected as group „B‟ and blood of said group was detected on the vest of Master Harshit. 24. The chance fingerprints Q-1, Q-2 and Q-3 as also the specimen fingerprints Ex.PW-23/C of the appellant taken by the investigating officer when the appellant was in police custody were sent to a fingerprint expert, Kalpana Sharma PW- 23, who opined vide report Ex.PW-23/A, that the chance fingerprint Q-1 matched the specimen fingerprint S-1 pertaining to the right hand middle finger of the accused. 25. The appellant was sent to trial. He was charged with the offence of murdering Anshul and Harshit. 26. At the trial, Sangeeta PW-1, the unfortunate mother of the two children, deposed that she was a housewife and was living on the second floor of house No.2/129, Subhash Nagar at Crl.A. 635/2007 & Death Ref. 2/2007 Page 15 of 59 the time of the occurrence. Her elder son was named Anshul and the younger was named Harshit. Their age was 4½ years and 8 months respectively. The incident took place at around 3:00 PM on 28.7.2003 when she was present in her house and her sons were sleeping in the bed room. Appellant came and asked for water. She gave him water. Appellant wanted a meal. She went to the kitchen and heard cries of Harshit. She returned and picked up Harshit. Appellant told her to give the child to him and cook meals for him. She gave her child to the appellant and went to the kitchen. Her son cried continuously even in the arms of the appellant and suddenly the crying stopped. She went to the bed room and saw that her son was being held from his legs by the appellant who was hitting the child on the floor. Her other son was sleeping on the bed in the same room. She snatched her son from the appellant and rushed to Pinki‟s house and handed over her unconscious son to Pinki and rushed back, by which time the appellant had bolted the door. She raised an alarm. She heard her son crying „Ma Ma‟. Suddenly the cries died down. By that time her neighbour Pritam Singh and Bahadur as also a few other persons gathered. The police arrived and a police person climbed a table and through a ventilator saw the dead body of her son and the appellant standing nearby. They pushed opened the door. She saw her son with his throat slit. A piece Crl.A. 635/2007 & Death Ref. 2/2007 Page 16 of 59 of glass, stained with blood, was lying on the chest of her son. The dressing table glass