D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 1 of 130 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 24th September, 2009 Judgment Delivered On: 27thOctober, 2009 + Death Sentence Ref.04/2008 STATE Through: Ms. Richa Kapoor, A.P.P. AND SANJAY DASS (CONVICT) Through: Mr. Sanjeev Sharma, Advocate CRL.A.464/2009 SANJAY DASS …..Appellant Through: Mr. Sanjeev Sharma, Advocate VERSUS STATE …..Respondent Through: Ms. Richa Kapoor, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the Digest? Yes. PRADEEP NANDRAJOG, J. 1. 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 2 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 3 of 130 2. It is settled legal position that while dealing with a reference for confirmation of a death sentence, the High Court must consider the proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law, and if necessary, after taking additional evidence, come to its own conclusions on the material on record in regard to the conviction of the accused (and the sentence) independently of the view expressed by Sessions Judge. Reference be made to the decision of Supreme Court reported as State of Tamil Nadu v Rajendran (1998) 8 SCC 679 wherein it was observed:- “In performing its duty, the High Court is of necessity bound to consider the merits of the case itself and has to examine the entire evidence on record. The legislature having provided in the confirmation proceedings, a final safeguard of the life and liberty of the subject in cases of capital sentences, the duty of the High Court becomes more onerous to consider independently the matter carefully and examine all relevant material evidence and come to a conclusion one way or the other. It is, therefore, the duty of the High Court in a death reference to consider the evidence afresh.” 3. Accordingly, 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. 4. 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 4 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. 5. On 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 5 of 130 as the instant case pertains to the commission of the offence of rape). 6. Leaving 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.PW-2/C of the deceased:- “....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.....” 7. 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 6 of 130 ........ Shifted to OT Admit in ICU” 8. 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” 9. 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. Const.Tejpal took the endorsement Ex.PW-48/A to HC Pawan Kumar PW-20, who recorded the FIR No.295/06 Ex.PW-2/B at 6.05 A.M. on 19.10.2006. 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 7 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. That he had employed a domestic servant named Sanjay (accused) on the recommendation of a driver named Jeetu five days prior to 19.10.2006. 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 8 of 130 brought dead at the hospital. The condition of both his daughters was serious. The accused absconded from his house. The accused has murdered the deceased and caused injuries to both his daughters after committing a murderous attack on them. 10. In the meantime, injured girl X was operated upon at Sunder Lal Jain Hospital. The report Ex.PW-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. Dr.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. 11. 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:- “....Alleged H/o Assault Pt has been stabbed at multiple places 1. Tracheal wound – already tube put 2. Left side of chest wall around 47th ICS horizontal 5- 9‟ cm long wound, sucking wound 3. Posterirly – 7-8 multiple wounds 2-3 ling vertically and horizontally placed D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 9 of 130 All the wounds bleeding profusely mid line superior wound has an discharge also.....” 12. 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...” 13. Injured girl Y was also operated upon at Sunder Lal Jain Hospital. The report Ex.PW-8/C prepared by Dr.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. 14. 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 10 of 130 Multiple lacerated wound over Ant aspect and lateral aspect of neck. L/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.” 15. 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....” 16. 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.’ 17. 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 11 of 130 children‟s room; a knife having an iron handle stained with blood was lying in the children‟s room; a bunch of hair was lying on the one of the bed lying in the children‟s room; a hair was lying on the floor of the children‟s 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 children‟s 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. 18. ASI Manish Kumar Bhardwaj PW-26, Finger Print Expert, lifted a chance print from a bathroom near the room of the children and as per the report Ex.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.PW- 32/B11. 19. 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 12 of 130 “14. Articles 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. 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 CASE 1. ........ 2. 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) 20. 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. 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.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’. 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 13 of 130 21. Since 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:- “1. 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. The medial angle of the wound is more acute. The shape of the wound is more or less spindle shaped. 2. 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.” 22. 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. 23. 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 14 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. 24. On the same day i.e. 19.10.2006 injured girls X and Y were shifted from Sunder Lal Jain Hospital to Apollo Hospital. Dr.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.......” 25. On 19.10.2006 at about 5.15 P.M. X was examined by Dr.Urvashi Prasad Jha PW-46. 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:- “He tried to molest me. He entered inside me, took off his clothes. It pained. I tried to fight. 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 don‟t 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. I don‟t remember his name. I think its Sanjay. (Emphasis Supplied) D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 15 of 130 26. After 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.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’. 27. 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. 28. On 20.10.2006 the accused was brought to Delhi and handed over to Inspector Baltej Singh PW-48. 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 16 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. Inspector Baltej Singh PW-48, prepared the site plan of the place of recovery of the said clothes; being Ex.PW-48/I. 29. Thereafter SI Rishipal PW-34, took the accused to Hindu Rao Hospital where Dr.Rakesh Kumar PW-4, examined the accused. 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. D.Sen.Ref.4/2008 & Crl.A.464/2009 Page 17 of 130 30. After 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. 31. 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. 32. 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. 33. 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.Hari Gupta PW-6. 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 18 of 130 34. After 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. 35. 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. 36. 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