IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Murder Reference No. 1 of 2009 Dated of Decision:- July 17, 2009 State of Haryana ..Prosecutor VERSUS Neel Kumar @ Anil Kumar ..Accused/Respondent 2) Criminal Appeal No. 268-DB of 2009 Neel Kumar @ Anil Kumar ....APPELLANT VERSUS State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present:- Mrs. Amita Arora, Advocate for appellant- Neel Kumar alias Anil Kumar. Sh. S.S.Randhawa, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. We will be deciding Murder Reference No. 1 of 2009 and Criminal Appeal No.268-DB of 2009 by the same order/judgment, as they arise out of the judgment/order dated 2.3.2009/6.3.2009 of the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri, convicting Neel 2 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 Kumar @ Anil Kumar son of Som Nath under Sections 302/376(2)(f)/201 IPC. Under Section 302 IPC, Neel Kumar @ Anil Kumar was awarded the death sentence. Under Section 376(2)(f) IPC, he was sentenced to undergo life imprisonment and to pay a fine of Rs.2,500/-, in default to further undergo R.I. for three months. Under Section 201 IPC, he was awarded the sentence for three years and to pay a fine of Rs. 1,000/-, in default to further undergo R.I. for one month. The learned trial Court in its wisdom acquitted Ramesh Kumar, Lakha, Tejbir and Gunga, all sons of Natha and convicted Neel Kumar alias Anil Kumar. State has not filed any appeal against their acquittal. The case of the prosecution is unfolded by the application Ex.P5 of Roopa Devi w/o appellant Neel Kumar given to Inspector Suraj Bhan at Shiv Chowk, Bilaspur. Roopa Devi stated in her application Ex.P5, that Neel Kumar alias Anil Kumar son of Natha is her husband. On 26.6.2007 she had gone to her parental home at Village Kesri after informing her husband. She could not come back to Village Bilaspur in the evening for some reason. On 26.6.2007 in the evening, she received a telephonic message that her husband Neel Kumar had committed rape upon her four year old daughter. On the next day i.e. on 27.6.2007, Roopa Devi accompanied by 5-7 members of her Biradari (Brotherhood), came to Village Bilaspur. A panchayat was convened, but the panchayat could not take any decision. She further stated, that Neel Kumar along with his brothers Ramesh Kumar, Lakha, Tejbir, Gunga had murdered her four year old girl Sanjana. They did 3 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 not reveal as to where the dead body of the girl was kept. She had a child of 15 days old in her lap, namely Salman, which the appellant along with her brothers took away from her. On the basis of this application Ex.P5, FIR Ex.P7 was registered on 28.6.2007 at 3.20 p.m. at Police Station Bilaspur. The special report reached the J.M.I.C., Yamuna Nagar on the same day at 4.35 p.m. The prosecution to prove its case brought into the witness box, Dr. Rajiv Mittal PW1, Dr. Ashwani Kashyap PW2, Roopa Devi PW3, Gulla PW4, C.Kamaljit Singh PW5, HC Nawab Singh PW6, ASI Raj Pal PW7, C.Mulakh Raj PW8, SI Madan Lal PW9, HC Waryam Singh PW10 and Mukesh Garg PW11, Sh. Narinder Singh ADC PW12, EHC Raj Kumar PW13, Madan PW14, HC Ish Pal Singh PW15, Joginder Singh PW16 and Inspector Suraj Bhan PW17. Learned counsel for the appellant has argued that there is 48 hours unexplained delay in recording of the FIR. Occurrence had taken place on 26.6.2007 at 2.30 p.m. and FIR Ex.P7 came into existence on 28.6.2007 at 3.20 p.m. This itself goes a long way in demolishing the case of the prosecution. This time was being utilized by the complainant to make up her mind as who to falsely implicate. There was matrimonial disharmony between the appellant and complainant Roopa Devi PW3. A petition for divorce was pending, which had been filed by Roopa Devi PW3 against the appellant. Roopa Devi PW3 had come to know about the rape of her child on 26.6.1997, but she did not take any steps to take the child to the hospital 4 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 or to inform the police. A mother would never tolerate the rape of her child by her father. If she had come to know about the rape on 26.6.2007, she should have taken steps immediately, to have the child treated. She would never have left the child in a critical condition with her husband and gone back to her parental house. Roopa Devi’s conduct is unnatural. She in fact had no knowledge about the rape and murder of her daughter. Ramesh Kumar, Gunga @ Yak, Tejbir and Lakha were falsely implicated. They were acquitted by the learned trial Court. State has not filed any appeal against their acquittal. This clearly shows that Roopa Devi PW3 at the time of recording of FIR Ex.P7 did not telling the truth. Appellant is being falsely accused of being a rapist and murderer by Roopa Devi PW3 and Gulla PW4. Learned counsel for the State has argued, that Roopa Devi PW3 in her testimony before the Court stated, that when she got a telephonic message about the rape of her child. On the next day she left for her in-laws’ house. On reaching she saw her daughter in a bad physical condition. She wanted to take the child to the hospital, but was prevented from doing so by the appellant. This showed the appellant to be a person of cruel mind. If somebody else had committed the rape on the minor child, the appellant, who was the father, would have been the first person to go to the police station and to take the minor child to the hospital. On the child not being given to the mother, Roopa Devi PW3 had no option but to go back to her parental house. In fact her 15 days son was snatched from her 5 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 by the appellant. Later on she received information that her daughter had been murdered by the appellant. The medical evidence clearly shows that the child was brutally raped. She at that time was in the custody of the appellant. There is no delay in lodging of FIR Ex.P7. On Roopa Devi PW3 reaching her husband house in Village Bilaspur on 27.6.2007, a panchayat was convened, though the appellant did not participate in the panchayat. Roopa Devi PW3 being a poor lady wanted to take the matter before the panchayat, but nothing was coming out she then wanted to take the child in her own custody, but was prevented from doing so by the appellant. Under the circumstances, appellant deserves no mercy. We have heard the learned counsel for the parties and perused the record with their assistance. The prosecution case is that on 26.6.2007 Roopa Devi PW3 was informed at Village Kesri Station, where she had gone to meet her parents, that her husband appellant Neel Kumar @ Anil Kumar had committed rape upon her daughter. The next day, i.e. on 27.6.2007 she along with her brothers and mother reached her matrimonial house in Village Bilaspur. She saw her daughter, who was in a critical condition. Thereafter a panchayat was convened in the village, but the matter could not be settled. Roopa Devi PW3, wanted to take her daughter for medical treatment but she was not allowed to do so by the appellant and was compelled to go back to Village Kesri on the same day. She then received information that appellant had killed her daughter. 6 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 Roopa Devi PW3 made a statement to this effect before SI/SHO Suraj Bhan PW17, where she met him at Shiv Chowk, Bilaspur and on the basis of this statement FIR Ex.P7 was registered on 28.6.2007 at 3.20 p.m. at Police Station Bilaspur. The special report reached the J.M.I.C., Yamuna Nagar on the same day i.e. on 28.6.2007 at 4.35 p.m. on the same day. Going by the sequence of events and a helpless mother first pleading before her husband i.e. appellant Neel Kumar and then pleading before the panchayat but not being successful to get justice, we do not find any delay in lodging of the FIR. Delay,if any, is adequately explained. Appellant did not ever allow her to take her 4/5 years old minor daughter to the hospital. There is no delay in lodging of FIR Ex.P7. Roopa Devi PW3 in her statement before the Court has stated, that when she met her daughter on 27.6.2009, her daughter confessed before her that appellant had committed rape on her. She had received a telephone call at her parental house on 26.6.2007 at 7.00 p.m. This call was made to her by her Jeth Ramesh Kumar. The panchayat consisted of her baradari was convened on 27.6.2007 by her in-laws. She along with her brothers and mother were part of this panchayat, but she did not get any justice from the panchayat. When she tried to take her daughter to the hospital, she was prevented from doing, but instead the appellant snatched her minor son aged 15 days. The defence has tried to make out a case that appellant is being falsely implicated, as a divorce petition was pending, which was filed by Roopa Devi PW3. Ex.D1 was the petition pending with the District Judge, 7 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 Yamuna Nagar at Jagadhri. Case No.97 dated 7.9.07 is endorsed on it. It is a petition under Section 13 of the Hindu Marriage Act for decree of divorce. This petition Ex.D1 was filed on 5.9.2007. Occurrence had taken place on 27.6.2007. There is a gap of three months in filing of the divorce petition and the occurrence of rape. The divorce petition was filed 3 months later. Roopa Devi PW3 could not have stayed with the appellant anymore after the gruesome act of her daughter being raped by her husband. It comes out that before commission of the offence, there was no dispute regarding the matrimonial relationship between Roopa Devi PW3 and appellant. It is not that only rape was committed on the minor child by appellant i.e. her father, but he kept her in a critical condition without any medical aid being given to her and later on committed her murder. Roopa Devi PW3 was informed, when she went back to her parents Village Kesri, about the murder of her daughter. If the appellant was innocent and his daughter had been raped by some one else, his immediate reaction would have been to take her to the hospital so that she could get medical care and thereafter he would have informed the police. Appellant did neither of the two. He was guardian of the child. It was his bounden duty to protect her, but instead he himself became the beast. Dr. Ashwani Kashyap PW2 has stated that he along with Dr. Deepika Gupta conducted the post-mortem examination on the dead body of the deceased, aged 4 years. They found the following injuries on her person:- 8 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 “ Bruise was present on neck front side size 10X4 cm. The child was wearing brown Langot, mouth was semi open, eyes were protruding and bloody froth was coming from mouth and nostril, face was turned blue, veins were engrossed and both the eyes were swollen. There was lacerated wound in vagina extending from anus to urethral opening admitting four fingers of size 6x4cm. Under lying muscles and ligaments were exposed and anus was also torn and on dissection uterus was perforated in the abdomen and rigor mortis was negative. Liver and spleen was congested and the cause of death was in this case in our opinion due to asphyxia because of throttling which is ante mortem in nature and was sufficient to cause death in ordinary course of events”. The medical evidence corroborates the ocular account and shows the appellant how brutally he committed rape on his own minor daughter. Gulla PW4 has corroborated the statement of Roopa Devi PW3. His testimony goes unshattered in his cross-examination. Inspector Suraj Bhan PW17, the Investigating Officer has stated that he along with Sh. Narender Singh, Sub Divisional Magistrate, Jagadhri exhumed the body, when the place where it was buried was pointed out in the burial place (Kabristan) of Village Bilaspur by Ramesh, brother of the appellant. Photographs of the dead body were taken. Appellant made his disclosure statement Ex.P23 and the blood stained bed- sheet was recovered from his Jhuggi, which was taken into possession vide 9 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 memo Ex.P24. Other clothes and articles were taken into possession vide documents Ex.P26, Ex.P27, Ex.P28, Ex.P29, Ex.P30 and Ex.P31. Hon’ble Supreme Court in Machhi Singh and others Vs. State of Punjab, AIR 1983 Supreme Court 957 has laid down the broad parameters and principles when death sentence is to be awarded: - “ 33. In this background the guidelines indicated in Bachan Singh’s case (supra) will have to be called out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh’s case: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 10 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 Hon’ble Supreme Court in Shivaji @ Dadya Shankar Alhat Vs. State of Maharashtra, 2008(4) R.C.R. (Criminal) 202 wherein also a 9 years old girl of 5th standard class was raped, has held as under: - “15. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed”. Hon’ble Supreme Court in Bachan Singh Vs. State of Punjab, 1980(2) SCC 684 has also held as under: - “132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and 11 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners’ argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the people’s representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognized legal sanction for murder or some types of murder in most of the civilized countries in the world, if the framers of the Indian Constitution were fully aware – as we shall presently show they were – of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before Parliament and presumably considered by it when in 1972-73 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest. We would, 12 Murder Reference No. 1 of 2009 and Criminal Appeal No. 268-DB of 2009 therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.” With the above observations and discussion, we are of the considered opinion that a case where a father after committing rape of his own daughter and then extinguishing her life will fall within the parameters of rarest of rare case. Appellant deserves no mercy and leniency. Reference No. 1 of 2009 forwarded by the Additional Sessions Judge, Yamuna Nagar is accepted. The death sentence awarded by the learned trial Court upon appellant Neel Kumar @ Anil Kumar is hereby confirmed. Appeal filed by Neel Kumar @ Anil Kumar bearing Criminal Appeal No.268-DB of 2009 is dismissed. This order shall not be complied with till the limitation for filing a Special Leave Petition before the Hon’ble Supreme Court does not expire. (MEHTAB S.GILL) JUDGE (JITENDRA CHAUHAN) July 17, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO