Criminal Appeal Nos. 52, 294, 628 of 2003 1 of 29 * HIGH COURT OF DELHI : NEW DELHI + Crl.A. 52/2003 Judgment Reserved on : 22.05.2008 % Judgment delivered on: 22.07.2008 RAI SINGH ..... Appellant Through : Ms.Charu Verma, Advocate Versus STATE ..... Respondent Through : Ms.Richa Kapoor, APP AND 2. Crl.A. 628/2003 RAMESH @ PAPPU ..... Appellant Through : Ms.Charu Verma, Advocate Versus STATE (GNCT) OF DELHI ..... Respondent Through : Ms.Richa Kapoor, APP AND Criminal Appeal Nos. 52, 294, 628 of 2003 2 of 29 3. Crl.A. 294/2003 SADRE ALAM ..... Appellant Through : Ms.Charu Verma, Advocate versus STATE ..... Respondent Through : Ms.Richa Kapoor, APP CORAM : Hon’ble Mr. Justice B.N.Chaturvedi Hon'ble Mr. Justice Rajiv Shakdher 1. Whether the Reporters of local papers may be allowed to see the judgment ? 2. To be referred to Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Rajiv Shakdher, J. 1. These are Appeals under Section 374 (2) of the Cr.P C against the judgment dated 9.10.2002 and sentence dated 28.10.2002 passed by the learned Additional Sessions Judge, Delhi Shri M.S. Sabharwal in Sessions Case No. 40/1999 arising out of FIR No. 81/99 PS Samey Pur Badali. By virtue of the impugned judgment and order the Appellant, Rai Singh, in Criminal Appeal No. 52/2003 has been convicted with respect to Criminal Appeal Nos. 52, 294, 628 of 2003 3 of 29 offences under Section 364-A, Section 302, 201 and Section 34 of the Indian Penal Code, as also of an offence committed under Section 377 of the Indian Penal code. Similarly, by virtue of the impugned judgment the Appellant, Ramesh alias Pappu being Appellant in Criminal Appeal No. 628/2003 has been convicted for offences under Section 364-A/302/377/201 and 34 of IPC. It is important to note that there was no charge against Shri Ramesh @ Pappu under Section 377 of the IPC. Shri Sadre Alam, the Appellant in Criminal Appeal No. 294/2003 has been convicted and sentenced by the very same judgment for offences under Section 364-A/302/201 and Section 34 of IPC as also under Section 377 of the IPC. 2. We propose to dispose of all the three Appeals by a common judgment as they arise out of the same impugned judgment and order of sentence passed by the learned Additional Sessions Judge. 3. Before dealing with grounds set out in the Appeal, it would be important to state the case of the prosecution before the trial court. On 7.2.1999 one Shri Prempal Singh R/o N-41/E- 235, Jhuggi, JJ Camp, Suraj Park, Samaypur Badli, Delhi filed a Criminal Appeal Nos. 52, 294, 628 of 2003 4 of 29 missing person‟s report at around 8.00 pm with the Police Station at Samaypur Badli, Delhi (hereinafter referred to in short as the „said Police Station‟). In the report which is exhibited as Ex.PW8/A and which was diarized as Daily Diary Entry No. 31/B it is mentioned that he is a resident of N-41/E-235, Jhuggi, JJ Camp, Suraj Park, Samaypur Badli, Delhi; that today i.e 7.2.1999 since 1.00 pm, his son Pravesh aged about six years who was playing with some children is missing and has not returned home since then. He is further stated to have communicated that even though he had tried to search for the missing child on his own, they had not succeeded and consequently, the report was being filed with the said Police Station. He also supplied the description of his missing son, Parvesh who, he stated, was about 3 ft. in the height and was wearing at the relevant time a sweater having red and green colour stripes and white colour shorts. 4. The said Prempal Singh further went on to state that he had received this information about his child, Parvesh having gone missing on 7.2.99 at around 3.45 pm, when his wife telephoned him at his work place. Criminal Appeal Nos. 52, 294, 628 of 2003 5 of 29 5. Since the child could not be found, even after a missing person‟s report was lodged on 7.2.1999. Shri Prempal Singh on 9.2.1999 got an FIR registered (Ex PW9/A) under Section 363 of the IPC. The FIR briefly described the events which had transpired till then as follows:- Prempal Singh alongwith his family resided in a Jhuggi bearing No. N-41/E-235, Jhuggi, JJ Camp, Suraj Park, Samaypur Badli, Delhi; he worked as a labourer in a factory situated at B- 59, Wazirpur Industrial Area, Delhi-52, for the last 14 years and that he has been residing in the aforesaid premises for the last 10 years, his family comprised of his wife, Smt Santosh Devi, his two daughters, Rajni aged 12 years and Pooja aged 8 years, and a son aged, six years, who was missing since 7.2.1999; that on 7.2.1999 he had left for work at about 8.00 am when at around 3.45 pm, his wife Smt Santosh Devi informed him telephonically that their son Parvesh had gone missing; on receiving this information from his wife, he rushed home and looked for his son Parvesh in the neighbourhood; his attempts to locate his son met with failure, which is when, he had lodged a missing person‟s report with the Police Station on 7.2.1999. The prosecution based on the aforesaid background facts and Criminal Appeal Nos. 52, 294, 628 of 2003 6 of 29 circumstances, attempted to establish that on 10.2.1999, Shri Prempal Singh came to the Police Station with a ransom note written in Hindi which, according to him, was found by his wife placed in between two bricks outside their residence. The ransom note (Ex PW4/X) was taken in possession by the Police vide memo dated 10.2.1999 (Ex PW4/A). The said memo (Ex PW4/A) bears the signatures of Shri Prempal Singh PW8 and sub- Inspector Birender Singh (PW 15). 6. It is the prosecution‟s case that it is at this point in time that Prempal Singh (PW8) for the first time suspected the Appellant‟s Rai Singh and Ramesh @ Pappu as possible suspects in the case. The investigation of the case was taken over by Inspector Ved Prakash, the Station House Officer of the said Police Station. Taking the aforesaid suspicion forward a supplementary statement of Prempal Singh (PW8) was recorded by Inspector Ved Prakash. By way of his supplementary statement Shri Prempal Singh (PW8) is stated to have said that he was informed by the playmates of his child Parvesh, Keshav (PW2) and Rupesh (PW3) that Rai Singh had given a one rupee coin to Pravesh and asked him to accompany Ramesh @ Pappu for purchasing a sweet/candy, and that upon receiving the Criminal Appeal Nos. 52, 294, 628 of 2003 7 of 29 ransom note, his suspicion of Rai Singh and Ramesh being involved in the kidnapping of his child got confirmed. 7. It transpires that Inspector Ved Prakash made enquiries with the complainant, Prempal Singh, his wife Smt Santosh Devi, as well as, the two playmates of deceased Pervesh, Keshav (PW2) and Rupesh (PW3). Upon making enquiries endeavours were made to locate the appellants/accused Rai Singh, Ramesh @ Pappu and Sadre Alam. A police party finally apprehended the appellants/accused near the western yamuna canal adjacent to north of Khera Kalan, Bawana Road, Delhi, at around 7.00 am on 11.2.1999. 8. The appellants/accused were interrogated. Upon interrogation they made disclosure statements which led to the recovery of the body of the deceased child, Pravesh and the weapon of offence; a ligature (i.e Tagri). The appellants/accused guided the police party to a deserted DTC depot on the bank of western Yamuna canal. Inside the deserted depot which was locked and had a peripheral boundary wall which was about 14 ft. heigh, the body of the deceased child was found behind a cluster of reeds and bushes. The body of the deceased child was Criminal Appeal Nos. 52, 294, 628 of 2003 8 of 29 identified by Shri Prempal Singh (PW8). At that point in time when the body was recovered it was found that the clothes from the lower half of the body were removed and there was a abdominal wound. A ligature (i.e tagri) was found tied around the neck of the deceased child. A statement with respect to identification of the body was recorded by the investigating officer Mr. Ved Prakash both of the father of the child Prempal Singh (PW8), as well as, the uncle, that is, the brother of Prempal Singh, Shri Hardesh. The said statements are marked as Ex PW22/B and Ex PW22/C respectively. 9. Consequent thereto, the dead body was sent for post mortem. The post mortem was conducted on 12.2.1999 at about 12.30 pm in the afternoon. The post mortem was conducted by Dr.L.C.Gupta (PW16). The post mortem report notes that upon external examination it was found that both hands of the deceased child were tied together with a coloured Polythene; a colourless polythene was found around the neck as loose ligature; and that a ligature (tagri) with black coloured multilayer thread/string having two metal beads (Ghungru) found around the neck was used to strangulate the deceased child causing death by asphyxia. The report also noted that the Criminal Appeal Nos. 52, 294, 628 of 2003 9 of 29 child had been castrated and his testicles were found removed from the scorotum. Importantly, the report has also opined that the child had been sodomised. Consequently, an anal swab was taken for detection of semen stain and/or sperm etc. This report was proved by Dr. L.C.Gupta (PW16). Based on the post mortem, Inspector Ved Prakash (PW22) in his testimony has stated that when he was informed that the child had been sodomised on 13.2.1999 the Appellants/accused were once again interrogated with respect to the castration and sodomy of the child before being put to death. Based on information received, two out of the three accused, that is, Appellants; Rai Singh and Sadre Alam were sent for medical examination. Their medical examination was conducted on 13.2.1999 about 2.30 pm. During examination blood samples of both Rai Singh and Sadre Alam were also taken and sealed. In this examination opinion was sought of the experts as to whether the appellants/accused Rai Singh and Sadre Alam were capable of sodomy. The doctor concerned vide his opinion (Ex PW19/A) opined that both Rai Singh and Sadre Alam were capable of sodomy. On 15.2.1999 further investigation was carried out which resulted in, further disclosure being made. According to the prosecution, the Criminal Appeal Nos. 52, 294, 628 of 2003 10 of 29 appellant, Rai Singh led the police to the site near the Yamuna canal situated near Raja Vihar; being the place where he had hidden behind some bushes his shorts and trousers which he was wearing at the time of commission of the crime. The said shorts and trousers were seized vide seizure memo Ex PW 15/E and sealed with the seal of “VP”. Similarly, the other accused Sadre Alam is said to have pointed out the area where he had hidden the knife which was allegedly used to inflict injuries on the child. The said area was also adjacent to the area from where the clothes of the accused Rai Singh were recovered. A sketch of the knife was made, which is, marked as Ex PW 15/F. The said knife was seized vide seizure memo (Ex PW 16/G) and sealed with a mark of “BS”. The said recoveries made were deposited with the store room of the Police Station. In the interregnum the police claim that they had also seized a note book from the house of the accused Rai Singh which contained certain writings, in the form of verse. The said note book which is marked as P-2 was seized vide memo Ex PW12/A. The police also obtained specimen handwriting of the accused on blank sheets of paper marked as Ex PW22/N to Q. The sealed parcels received after the post mortem from the mortuary were sent to Criminal Appeal Nos. 52, 294, 628 of 2003 11 of 29 the CFSL for analysis. The CFSL vide its report dated 8.6.1999 (Ex PW 22/X) has given its opinion which we propose to discuss in the latter part of our judgment. 10. Based on the aforesaid, the police filed a report under Section 173 of the Cr.PC. By an order dated 8.9.1999 charges were framed against the appellants/accused. In so far as Rai Singh and Sadre Alam are concerned, an additional charge under Section 377 of IPC was also framed. The charges framed against all three accused Rai Singh, Ramesh @ Pappu and Sadre Alam read as follows:- “Firstly, that on 07.02.1999 during the day time after 12 pm you all in furtherance of your common intention kidnapped a minor Parvesh s/o Prem pal Singh from the street near Jhuggi of Prem Pal Singh at Suraj Park, Delhi within the jurisdiction of PS Samay Pur Badali with intention to cause his death or hurt to him in order to compel his parents to pay a ransom of Rs. 1.10 lac and thereby committed an offence punishable under Section 364A IPC, within the cognizance of this court. Secondly, that after so kidnapping the minor Parvesh on the aforesaid date and place you all in furtherance of your common intention committed his murder intentionally and knowingly by strangulation and cutting his testicals at a secluded place growing bushes surrounded with walls of DTC Depot, Western Yamuna canal, Bawan Road, within the jurisdiction of P S Samey Pur Badali and thereby committed an offence punishable under Section 302/34 IPC, within the cognizance of this court. Criminal Appeal Nos. 52, 294, 628 of 2003 12 of 29 Thirdly, that after intentionally and knowingly committed the murder of the said boy Parvesh Pal on the above said place mentioned above and after 12 pm on 07.02.1999, you all in furtherance of your common intention concealed his dead body under the bushes, threw his testicals in the Yamuna canal disposed off his clothes, as well as clothes of your co- accused Rai Singh as the knife used in the commission of offence so as to cause disappearance of the evidence of his murder and in order to save you from legal punishment and thus committed an offence punishable under Section 201/34 IPC, within the cognizance of this Court. “ 11. In addition the following identical charge was framed against the accused Rai Singh and Sadre Alam:- “That on 07.02.1999 after kidnapping the minor Parvesh Pal after 12 pm from his street near Jhuggi , Suraj Park, you took him to a deserted place in the four walls of DTC Depot, in the south of Bawana Road, Western canal, Bawan Road, within the jurisdiction of P S Samey Pur Badali and before committing his murder you had carnal intercourse with the said boy against the order of nature, and thereby committed an offence punishable under Section 377 IPC, within the cognizance of this court.” 12. The appellants pleaded that they were not guilty and claimed trial. Consequently, a trial was commenced and by the impugned judgment and order the appellants were convicted of the charges framed against them and sentenced for the offences as stated hereinabove. Criminal Appeal Nos. 52, 294, 628 of 2003 13 of 29 13. The learned counsel for the appellants has impugned the judgment of the trial court on the following grounds:- (i) there is no eye witness to the commission of the crime. The entire case of the prosecution is based on circumstantial evidence which requires the prosecution to establish with certainty every circumstance so that the court can come to a definitive conclusion with regard to guilt of the accused. It is the submission of the learned counsel for the Appellant that the test to be applied by the Court in the case of conviction based on circumstantial evidence is that all the circumstances, which are links in the chain, should unerringly point to the guilt of the accused and exclude every such hypothesis which establishes the innocence of the accused; (ii) the learned counsel for the appellants has submitted that there are several contradictions and inconsistencies in the testimony of the witnesses produced by the prosecution. In particular, the learned counsel has attempted to establish that the edifice of the prosecution‟s case is based on the last seen circumstance, which is, that the deceased child was last seen in the company of the appellants/accused, Rai Singh and Ramesh Criminal Appeal Nos. 52, 294, 628 of 2003 14 of 29 @ Pappu. This the learned counsel submitted is demolished upon a close scrutiny of the testimonies of the mother, Smt Santosh (PW1) and Keshav (PW2) and Rupesh (PW3) which form the basis of the last seen circumstance. An examination of the testimony of Smt. Santosh (PW1) scrutiny would show that she had based her testimony on what she had been told by the two child witnesses, Keshav (PW2) and Rupesh (PW3). While both Keshav (PW2) and Rupesh (PW3) had categorically stated that the deceased child Pravesh returned after having purchased the sweet/candy. The learned counsel further submits that as a matter of fact one of the child witness Rupesh (PW3) in the cross-examination had made a reference to only Rai Singh as the one who had offered the one rupee coin to the deceased child for purchasing the sweet. The learned counsel submits that there is no reference to the other accused Ramesh in the testimony of Rupesh (PW3). (iii) The learned counsel for the Appellants has also referred to other discrepancies, which is, that there is no mention in the missing person‟s report filed on 7.2.1999, or in the FIR registered on 9.2.1999 of the appellants as possible suspects. Criminal Appeal Nos. 52, 294, 628 of 2003 15 of 29 According to the learned counsel for the Appellants this fact attains importance in view of the fact that there was never any suspicion in the mind of the family as regards to the Appellants; the appellants have been named as accused only on the say so of the police. (iv) the learned counsel for the Appellants has further submitted that the ransom note on the face of it lacks credence. Firstly, for the reason that it does not with certainty give the location, time or place where the ransom money had to be paid and second, it makes no sense for the Appellants to have placed the ransom note outside the house of the deceased child on 10.2.1999 when, according to the post mortem report, the child had already been killed on 9.2.1999; (v) the counsel for the Appellants also submitted that the place where the crime is said to have been committed according to the prosecution; is highly unlikely and improbable. It is the learned counsel‟s submission that it would not have been possible for the Appellants to have scaled a fourteen (14) feet high boundary wall of the deserted DTC depot with a six year old child without aid of a ladder or some such equipment. It is Criminal Appeal Nos. 52, 294, 628 of 2003 16 of 29 contended that the prosecution has not recovered a ladder or any other such equipment which may have been used to scale the boundary wall. (vi) the learned counsel for the Appellants has also submitted that the recoveries allegedly made by the Appellants are plants and hence, have to be discarded; (vii) lastly, the learned counsel for the Appellants has submitted that the charge under Section 377 of the IPC against the accused Rai Singh has not been proved and the reasoning of the trial court on the aspect also cannot be sustained for the reason that there was no blood sample of the accused taken which could then have been matched with the rectal swab taken at the time of the post mortem of the deceased child. 14. Per contra, the learned Additional Public Prosecutor (APP) has submitted that the court would take cognizance of the fact that the deceased child was last seen with the accused Rai Singh and the Ramesh @ Pappu. In this regard, the learned APP seeks to place reliance on the testimony of the mother, Smt Santosh Devi (PW1) and Keshav (PW2) and Rupesh (PW3). Criminal Appeal Nos. 52, 294, 628 of 2003 17 of 29 15. The learned APP has attempted to meet the submission of the learned counsel for the Appellants that the Appellants/accused were not named either in the missing person‟s report lodged on 7.2.1999, or in the FIR registered on 9.2.1999 by taking recourse to the testimony of the father, Prempal Singh (PW1) that the complainant‟s suspicion became firm only after the receipt of the ransom note on 10.2.1999 which thereupon propelled the investigating officer, Shri Ved Prakash (PW22) to record a supplementary statement of the complainant, in which, he had categorically made a statement suspecting the role of the Appellant, Rai Singh in the kidnapping of his son Pravesh. 16. The learned APP has further submitted that after apprehending the Appellants, at the instance of the complainant the Appellants were interrogated. In the course of their interrogation on 11.2.1999 the Appellants made disclosure statements which led to the recovery of the dead body and the ligature used for strangulating the child Pravesh. The learned APP further submitted that upon receipt of information by the investigating officer Shri Ved Prakash from Dr.L.C.Gupta who conducted the post mortem it got revealed that the child Criminal Appeal Nos. 52, 294, 628 of 2003 18 of 29 Pravesh had been sodomised before being done to death. Consequently, further investigation was carried out which led to the recovery of the Knife used for inflicting abdominal wound, as well as, carrying out castration of the deceased child, as well as the recovery of the clothes worn by Rai Singh at the time of commission of the crime. The learned APP relied upon seizure memo of the clothes (Ex PW 15/E) which relates to the clothes i.e trousers and shorts worn by accused Rai Singh at the time of commission of the crime. The learned APP also placed before the court (Ex PW 15/G) which is the seizure memo pertaining to the Knife used in castrating, as well as, inflicting abdominal injuries on the deceased child. The learned APP also relied upon Ex PW 22/B and Ex PW22/C which were statements of the father of the deceased Shri Prempal Singh and the uncle, Shri Hardesh (PW7) whereby they identified the dead body of Pravesh which at the relevant point in time was lying behind the bushes, in the compound of the DTC depot, near Bawana Road. The learned APP also relied upon the post mortem report (PW16/A), the CFSL report (Ex PW22/Y), the ransom letter (Ex PW4/X), and the report of the handwriting expert to demonstrate that the accused had a common intention to abduct the child for ransom on 7.2.1999, Criminal Appeal Nos. 52, 294, 628 of 2003 19 of 29 and that they kidnapped the child after being sodomised by the accused Rai Singh had been done to death by manual strangulation. 17. Having heard the learned counsel for both the Appellants and the State and after perusal of the evidence on record, we are of the view that there are several crucial missing links in the evidence placed before the Court by the prosecution. The discrepancies in our view have arisen are largely due to crucial lapse in the investigation of the case by the police. 18. Our conclusion that the material placed before the court is not sufficient to convict the Appellants of the offences they are charged with, is based on the following:- 19. The first lacunae in the case is with regard to the reference of the prosecution on the testimonies of the mother Smt Santosh Devi (PW1), Keshave (PW2) and Rupesh (PW3) to establish last seen circumstance. A close scrutiny of the testimony of Smt Santosh Devi would establish that the case of