DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 1 of 51 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 10.07.2009 + DEATH SENTENCE REFERENCE 2/2008 STATE ... Petitioner/Appellant - Versus – JYOTISH PRASAD & ANOTHER ... Respondents Advocates who appeared in this case:- For the Petitioner/Appellant : Mr M.N. Dudeja For the Respondent No.1 : Mr Vikas Arora For the Respondent No.2 : Mr Navin Chawla WITH + CRL. A. 768/2008 JYOTISH PRASAD ... Appellant - Versus - STATE (NCT OF DELHI) ... Respondent Advocates who appeared in this case:- For the Appellant : Mr Vikas Arora For the Respondent : Mr M.N. Dudeja AND + CRL. A. 90/2009 ASHISH KUMAR KAPRI ... Appellant - Versus - STATE OF NCT OF DELHI ... Respondent Advocates who appeared in this case :- For the Appellant : Mr Navin Chawla For the Respondent : Mr M.N. Dudeja DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 2 of 51 CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE V.B. GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in Digest ? YES BADAR DURREZ AHMED, J 1. These appeals and the death sentence reference arise out of the judgment dated 02.08.2008 and the order on sentence dated 11.08.2008 passed by the learned Additional Sessions Judge, Patiala House Courts, New Delhi in Sessions Case No.19/2004 arising out of FIR No.112/2004 registered at police station IGI Airport. By virtue of the impugned judgment, the appellants Jyotish Prasad and Ashish Kumar Kapri have been convicted under Sections 394/302/201/34 IPC as well as under Section 376 (2)(g) IPC. The learned Additional Sessions Judge, by the impugned order on sentence, imposed the extreme penalty of death sentence on both the appellants in respect of the offence of murder punishable under Section 302 IPC. With regard to the conviction under Section 394 IPC, the appellants were sentenced to undergo rigorous imprisonment for 10 years each and also to pay a fine in the sum of Rs 1,000/- each and in default of the payment of such fine, they were to undergo simple imprisonment for one month each. With regard to the offence under Section 201 IPC, the appellants were DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 3 of 51 sentenced to undergo rigorous imprisonment for seven years alongwith a fine in the sum of Rs 1,000/- each. In default of payment of fine, they were required to undergo simple imprisonment for one month. As regards their conviction under Section 376 (g) IPC, the appellants were directed to undergo imprisonment for life as also to pay a fine in the sum of Rs 1,000/- each and in default thereof to undergo simple imprisonment for one month. 2. The prosecution case is that in the early hours of 17.03.2004, Ms Dawn Emelie Griggs aged about 60 years, an Australian citizen, arrived at the Indira Gandhi International Airport (hereinafter referred to as ‗IGI Airport‘) from Hongkong on board Flight No. CX-753. At the said airport, she took a taxi bearing No. DL-1T-2248 from the prepaid taxi booth at about 2.30 a.m. The driver of this taxi is alleged to be the appellant Jyotish Prasad. The allegation is that the appellant Jyotish Prasad alongwith the appellant Ashish, who is also a taxi driver, were already planning to loot some passenger. The allegation goes further that when the appellant Jyotish Prasad had taken the said Ms Griggs in his taxi, she appeared to be an easy prey. After driving a short distance, the appellant Ashish was also admitted into the taxi by the appellant Jyotish Prasad. Thereafter, they took the taxi onto an unpaved (kachha) passage towards the jungle around the airport area. On this, Ms Griggs started shouting. It is alleged that Ashish caught hold of her and DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 4 of 51 gagged her mouth with a piece of cloth which was in the taxi and which was used for cleaning purposes. The prosecution case goes further in that the appellants stopped the taxi near a well in the jungle and snatched her waist purse. She was then taken out from the taxi and dragged near the bushes and thereafter, raped by the appellants one by one. Thereafter, the appellants used a screw driver which was available in the taxi and caused injuries on her person. They throttled her by pressing her neck and also by gagging her and thereby killed her. It is further alleged that they took out the luggage of the deceased from the taxi, opened the same and searched through her luggage for valuables. They took out the currency and travellers cheques, etc. from the bags which they threw in a dry well nearby and then disappeared. 3. At about 10.50 a.m., on 17.03.2004, an information was received at the police station IGI Airport, Delhi that a dead body of a female was lying in the jungle near the Bharat Petroleum Gate of IGI Airport. The information was reduced to writing as D.D. No.3-A (Exhibit-PW-1/A). The said information was marked to PW-27 (SI Suresh Chand) who left for the spot alongwith Constable Anil Kumar. PW-28 (Inspector J.L. Meena), who was the investigating officer in this case, came to know about this fact and he departed from the police station IGI Airport by recording the same in D.D. No.4-A (Exhibit-PW-1/B) at 10.55 a.m. When the investigating officer (IO) reached the spot at about 11.20 DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 5 of 51 a.m., he found a dead body of a female of foreign origin lying in the jungle about 300 metres away from the Bharat Petroleum Depot. There was blood lying at the spot and a piece of cloth was found inserted in the mouth of the corpse. The investigating officer (J.L. Meena) also noticed injuries near the right eye and nose of the deceased. He also noticed bluish marks on her neck. One plastic bottle and spectacles were found lying near the dead body. The bottle was of Evian brand. After conducting a search, the investigating officer found some articles lying in a dry well about 150 metres away from where the dead body was lying. One Murari Pandey (PW-16) at the request of the investigating officer took out the articles from the well. The articles comprised of one red bag of medium size, two black bags and some loose papers, books and a pair of shoes. A tag of the airlines mentioning CX-753 was found affixed on all the three bags. On checking the contents of the bags, two photocopies of the passports were recovered. One was an Australian passport and the other was a British passport. The name of the holder of both the passports was Dawn Emelie Griggs. A photograph was recovered from the baggage and the photographs of Dawn Emelie Griggs were also visible in the photocopies of the passports. The investigating officer compared the photograph as appearing in the photocopies of the passports with that of the dead body and came to the conclusion that the dead body was of Dawn Emelie Griggs. DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 6 of 51 4. After sometime, the crime team reached the spot and photographed the dead body, place of incident and the surrounding areas. Photographs of the bags taken out from the well were also taken. The site was inspected by the crime team members and they also inspected the plastic bottle and other articles. The finger print team also reached the spot and they lifted finger prints from the glass, one plastic lunch box and from one bottle of plastic and from the polythene pouch and a folder after taking the same out of the bags. The articles which were recovered were sealed in parcels with the seal of JLM and seizure memos were prepared. Blood stained earth and earth control were also lifted from the spot and were sealed separately with the seal of JLM (initials of the investigating officer) vide separate seizure memos Exhibit-PW-2/C. 5. The investigating officer had also found the ear rings lying near the head and the said ear rings and other belongings of the lady and those which were found on her dead body were removed and sealed vide seizure memo Exhibit-PW-2/B. The said other belongings, included a Citizen watch, two rings, one chutki, one stone necklace, one ring on which the following words were inscribed — ―Param Pita Shiv Parmatma‖. After completing the other investigative procedures and after the finger-print expert and the crime team officials handed over DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 7 of 51 their reports, the investigating officer left the spot alongwith PW-27 (SI Suresh Chand) and reached IGI Airport. The investigating officer collected details of the flight from PW-8 (SI Surender Latia), who was posted at IGI Airport and who was deputed by the investigating officer to collect details from the Immigration Office. Photocopies of the flight chart were seized vide memo Exhibit-PW-8/A. Photocopies of the disembarkation card, photo copies of the flight manifesto, record of the Bureau of Immigration, etc. were taken. The said documents were marked as Exhibit-PW-8/B, C, D and E). On going through the said documents, the investigating officer arrived at the conclusion that the deceased Ms Griggs had arrived at IGI Airport in the early hours by Flight No.CX-753 from Hongkong. In order to cross-check as to the mode of transport taken by her, upon her arrival at the Delhi Airport, the investigating officer went to the prepaid taxi booth / counter. At the said counter, one Mahender Pal (PW-3) was found to be in charge of the prepaid taxi booth. He provided a carbon copy of a voucher (Exhibit-PW-3/B), which was issued in the name of the deceased. The said voucher indicated the destination as Karol Bagh and the fare for the journey was indicated as Rs 250/-. The said PW-3 (Mahender Pal) told the investigating officer that as per their records, Ms Griggs had boarded taxi No. DL-1T-4428. The document, which was provided by the PW-3 (Mahender Pal) was seized vide memo Exhibit-PW-3/A. It may be relevant to point out that the investigating officer also seized DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 8 of 51 the photocopy of the register maintained at the prepaid taxi booth and the same was marked as Exhibit-PW-3/C. The original register was also later on placed on the judicial file during evidence and it is exhibited as Exhibit-PW-3/C. It is the case of the prosecution that this register contains the record of the taxies which are allotted to passengers from the said prepaid booth. 6. Armed with the information hitherto gathered by him, the investigating officer searched for the owner of the taxi. Apparently, the taxi owner PW-11 (Rakesh Kumar) was found in the parking lot of IGI Airport. He was asked as to who was driving the taxi in the intervening night of 16th / 17th March, 2004. The said taxi owner PW-11 (Rakesh Kumar) is alleged to have told the investigating officer that it was driven by the appellant Jyotish Prasad. 7. The sequence of events, according to the prosecution, which followed, is that thereafter, the said PW-11 (Rakesh Kumar) led the police party to the house of one Harender at Shahbad where the appellant Jyotish Prasad was residing as a tenant. The appellant Jyotish Prasad was found at that place. It is stated that the appellant Jyotish Prasad was then taken to the parking lot where the taxi was parked and he was interrogated on the way near Shahbad Road. Apparently, the appellant Jyotish Prasad confessed to the crime vide Exhibit-PW-27/A. DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 9 of 51 He is also stated to have named appellant Ashish as his accomplice. Jyotish Prasad was arrested and his personal search was conducted vide memo Exhibit-PW-27/B. He was found to be in possession of one purse containing one US dollar, Rs 240/- in Indian currency, one telephone diary, one driving licence, one Nokia mobile phone, one key of a vehicle and one prepaid voucher (Exhibit-PW-3/D), which was the driver‘s copy issued by the prepaid taxi booth. Exhibit-PW-3/D bore the number 88919 and, on it, ‗Griggs‘ was written separately. The passenger‘s name was given as ―Mr Griggs Daun‖. The taxi number ―4428‖ was written in hand. The said voucher (Exhibit-PW-3/D) was taken into possession vide seizure memo Exhibit-PW-27/C. Jyotish Prasad is then said to have led the police party to the taxi stand near IGI Airport and to have pointed out the taxi bearing registration No. DL- 1T-4428 which was seized vide seizure memo Exhibit-PW-27/H. At the parking lot, the underwear, which Jyotish Prasad was wearing, was also taken into possession and sealed vide memo Exhibit-PW-27/D. Thereafter, the appellant Jyotish Prasad took the police party to the place of incident and pointed out the same and also identified the well where he dropped the belongings of the deceased. He is alleged to have also pointed out the sewage manhole where he is alleged to have dropped some cards and the passport of the deceased, after the offence. He is also said to have pointed out the place where he concealed his share of the loot. Pointing out memos Exhibit-PW-27/D, 27/E, 27/F DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 10 of 51 and 27/K were prepared. The appellant Jyotish Prasad is said to have led the police party to a well which was 14-15 feet deep and in the presence of the police party he entered the same and after digging some soil, with his hands, he took out a bundle (potli) and thereafter he came out of the well. When the said bundle was opened, it was found to contain 300 Australian dollars, seven travelers cheques, four currency notes of Hongkong dollars in the denomination of 100 dollars each and two currency notes of Hongkong dollars in the denomination of 20 dollars each. The travelers cheques were found to be in the name of Dawn E. Griggs. The said articles were seized vide seizure memo Exhibit-PW-27/G. The investigating officer alongwith the police officials then once again visited the prepaid taxi parking lot at the IGI Airport. The crime team officials had been informed to inspect the recovered taxi and when the investigating officer arrived at the parking lot, the crime team members were present. Thereafter, the taxi was inspected by the members of the crime team who recovered one junglee gokhroo (wild thorn) from the right hand side rear tyre of the vehicle. One such gokhroo was also found from the mat which was lying near the rear seat and the mud was also removed from all the four tyres. Some hair were also lifted from inside the taxi. The above articles were placed in a sealed parcel vide seizure memo Exhibit-PW-27/1. Finger prints were also lifted from the taxi by the finger print expert on 17.03.2004. The investigating officer then once again visited the DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 11 of 51 prepaid taxi booth situated in the arrival section of IGI Airport. There, he met one Vijay Kumar (PW-4) who was an employee working at the said booth. PW-4 (Vijay Kumar) informed the investigating officer that it was he who issued the voucher / receipt of the prepaid taxi in respect of the foreign lady, namely, Griggs Dawn. Consequently, the statement of Vijay Kumar was recorded. The investigating officer also recorded the statement of PW-15 (Head Constable Upender) in whose presence Ms Griggs had boarded the taxi No. DL-1T-4428. Thereafter, the investigating officer returned to the police station and deposited the case properties in the malkhana. 8. Since Jyotish Prasad had named Ashish as his accomplice, the investigating officer searched for Ashish. At the taxi stand, appellant Ashish Kumar was allegedly produced by one Kishan Pal, who was the owner of another taxi, but upon interrogation, Ashish Kumar did not disclose anything. He was handed over to the Station House Officer for further interrogation. The investigating officer then went to Safdarjung Hospital for the purposes of getting the post mortem examination conducted on the dead body of Ms Emelie Dawn Griggs. It is also pertinent to note that in the meantime, the Consul Officer and Consular General of the Australian High Commission had also arrived at the Safdarjung Hospital. A team of doctors conducted the post mortem examination and thereafter, the dead body was handed over to one Mr DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 12 of 51 Josef who had been appointed by the Australian High Commission to collect the dead body. 9. On 18.03.2004, appellant Ashish was released after interrogation with the direction to appear at the police station on the next day. On 19.03.2004, when Jyotish Prasad was again interrogated, he apparently disclosed that he, alongwith Ashish, had thrown the passport of the deceased and other documents in the sewer and that he had handed over the screw driver to Ashish. Consequently, Ashish was again called to the police station on 19.03.2004 and was interrogated. He did not reveal anything and as such, he was released with the direction to visit the police station again the next day. On 20.03.2004, Jyotish Prasad is alleged to have led the police party to the sewer situated near the Bharat Petroleum depot. The sewer was searched with the help of the contractor / employees of the airport and in the course of the search, five cards and one plastic cover were recovered. On 20.03.2004, Ashish visited the police station, but as before, he did not disclose anything and denied knowledge about the case. He was allowed to go home with the direction to appear again on 21.03.2004. On 21.03.2004, Ashish was thoroughly interrogated and gave information with regard to the screw driver and the looted amount. Consequently, Ashish was arrested vide arrest memo Exhibit-PW-13/A. Ashish, thereafter, took the police party to the place of occurrence and at a DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 13 of 51 distance of about 30-35 steps away from the dry well in which the luggage had been recovered pointed out the place where he had thrown the screw driver. Thereafter, he took out the screw driver Ex. A-1 from the mud (kichar). The investigating officer prepared the sketch of the screw driver Exhibit-PW-27/N and seized the same vide Exhibit-PW- 27/P. In the meanwhile, the employees of the contractor Nasruddin (PW-9) were busy in the search of the passport in the sewer. At the end of the sewer near the treatment plant jail (mesh), an Australian passport cover was recovered. Allegedly, both the appellants identified the cover of the Australian passport as the same belonging to the deceased which they had thrown in the sewer. The passport cover (Exhibit-P-7) was taken into possession vide memo Exhibit-PW-9/B and the statements of Nasruddin and Virpal, who had entered the sewer and searched for this document, were recorded. It is then alleged that the appellant Ashish led the police party to a place at a distance of about 350 metres from Shahbad on the Samalkha side where he pointed out the place amongst the bushes and took out a white polythene bag which, when opened, was found to contain Rs 5,400/- in Indian Currency, 260 Australian Dollars, 54 coins of different countries, including Australia, New Zealand and Hongkong. He also took out one shirt (Exhibit-S-17) from the bushes. The shirt and the other recovered articles were seized and placed in separate sealed parcels vide seizure memo Exhibit-PW-27/Q. DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 14 of 51 10. On 23.03.2004, both the appellants were produced before Dr Sarvesh Tandon (PW-26) at Safdarjung Hospital for medical examination. After conduct of the said examination, six parcels duly sealed with the seal of Safdarjung Hospital reportedly containing scalp hair, pubic hair and blood gauze of both the appellants were collected. The same were seized vide memo Exhibit-PW-18/A by SI Vivek Pathak (PW-18), who also handed over to the investigating officer the post mortem report of the deceased and 9 sealed pulandas (parcels), which were prepared by the doctor after the conduct of the post mortem examination of the dead body of Dawn Emelie Griggs. The said parcels were duly sealed with the seal of the Department of Forensic Medicine, Safdarjung Hospital and were seized vide seizure memo Exhibit-PW-18/B. The contents of the 9 parcels seized as per memo Exhibit-PW-18/B were as under:- ―1. One white colour cloth parcel sealed with the seal of ―Department of Forensic Medicine, S.J.H., India‖ bearing the words ―P.M. No.399/2004 dt. 18.3.2004 signature and date.‖ 2. One glass phial sealed with the seal of ―Department of Forensic Medicine, S.J.H. India‖ containing the scalp hair of deceased Ms. Dawn Emelie Griggs, aged 59 years/F, R/o P.O. Box 243 Byron Bay NSW Australia, P.M. No.399/2004 dt. 18.3.2004‖ and bearing a slip of paper on which some words were written. 3. One glass phial sealed with the seal of aforesaid seal bearing a (slip of papers) on which some detail were written, containing the blood Gauze piece of DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 15 of 51 deceased. 4. One glass phial sealed with the seal of aforesaid seal bearing a (paper) slip on which the aforesaid details were written and containing a cloth piece of mouth. 5. One glass phial sealed with the seal of aforesaid seal bearing a (paper) slip on which the aforesaid details were written, containing the pubic hair. 6. One glass phial sealed with the seal of aforesaid seal and bearing a (paper) slip on which aforesaid detail were written and containing the nail clippings of left hand. 7. One glass phial sealed with the aforesaid seal and bearing a (paper) slip of a aforesaid details containing vaginal swab (4) in number. 8. One glass phial sealed with the aforesaid seal having a (paper) slip with some detail thereon, containing vaginal slides (4) in number. 9. A glass phial sealed with the aforesaid seal having a (paper) slip with the aforesaid detail and containing the nail clippings of right hand.‖ 11. On 01.04.2004, the investigating officer went to the jungle where the dead body had been recovered and lifted six gokhroos (wild thorns) from the place of incident by way of samples vide seizure memo Exhibit-PW-29/N. Finger prints of the accused persons had also been collected by the investigating officer and were sent to the Finger Prints Bureau, Crime Branch, Delhi Police, Delhi at Malviya Nagar for comparison with the finger prints lifted from the articles in the baggage and the taxi. The extracts collected from the medical examination of the appellants and those collected upon the conduct of post mortem DEATH SENTENCE REF.2/08&CRLA Nos.768/08 & 90/09 Page No. 16 of 51 examination of body of the deceased were sent to the Forensic Science Laboratory, Rohini, Delhi on 22.04.2004 through PW-12 (Head Constable Ranbir). 12. The challan was filed in court on 26.05.2004 and the case was committed to the Sessions Court on 08.06.2004. It is alleged that when the investigating officer went to the Forensic Science Laboratory, Rohini to collect the report in this case, they informed him that some more blood of the accused persons would be required for comparison and detailed examination. Consequently, an application was moved before the learned Additional Sessions Judge, who by an order dated 01.10.2004, permitted the investigating officer to produce the appellants before the doctor for the purposes of collecting blood samples. Thereafter, the appellants were produced before the doctor on 07.10.2004 at Safdarjung Hospital and their blood samples were taken. The same were taken into possession and put in separate sealed containers as per seizure memo Exhibit-PW-22/A dated 07.10.2004. On 08.10.2004, the same were handed over to PW-21 (SI Amleshwar Rai) for depositing