Death Ref.No.01/2010 Page 1 of 50 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 28th April, 2010 Judgment Pronounced on: 7th May, 2010 + DEATH REF. 01/2010 In the matter of:- DEATH REFERENCE 01/2010 pertaining to Sessions Case No.6/2008. In Re : STATE Through : Ms.Richa Kapoor, A.P.P. and Mr.M.N.Dudeja, A.P.P. AND RANJEET ….Accused Through : Mr.Rajesh Mahajan, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. The post-mortem report Ex.PW-5/B of deceased Rakhi aged 5 years, proved at the trial by the author thereof Dr.S.Lal PW-5, not only proves that Rakhi was raped but also the fact that she was strangulated to death. A vaginal tear Death Ref.No.01/2010 Page 2 of 50 extended to the anus of the unfortunate young girl. 15 other injuries, most of them around the neck, had tell tale sign of nail marks evidencing the young girl being manually strangulated. Muddy water had reached the bronchiole, establishing that the young girl had died due to asphyxia not resulting from manual strangulation but from drowning. Indeed, Sh.Rajesh Mahajan learned counsel for the accused Ranjeet did not dispute that Rakhi was raped and an attempt was made to manually strangulate her to death and when the body became lifeless, not realizing that there was some life in Rakhi, her body was thrown in muddy water and the final cause of death of Rakhi was by drowning. 2. What was debated before us was whether it stands proved that the appellant is the rapist and the murderer of Rakhi as held by the learned Trial Judge and if yes, whether the appropriate sentence should be death penalty. 3. Vide impugned judgment and order dated 10.2.2010, Ranjeet has been convicted for the offence of having kidnapped Rakhi from near her house at around 9:00 PM on 3.9.2007 and thereafter committing rape upon Rakhi followed by murdering her. Vide order dated 3.3.2010, Ranjeet has been sentenced to death. Death Ref.No.01/2010 Page 3 of 50 4. Accordingly, the learned Trial Judge has made a reference to this Court in compliance with Section 366 Cr.P.C. 5. As per the mandate of law we had perused the entire evidence with the assistance of learned counsel for the parties when the Reference was heard on 28.4.2010 and thus would be deciding the Reference noting the arguments advanced, uninfluenced by the findings returned by the learned Trial Judge, of course, we would be reflecting upon the reasoning of the learned Trial Judge as and when appropriate and if required to be so done. Indeed, in a case where penalty imposed is to hang the convict by the neck till he is dead i.e. death sentence, it is the duty of the Appellate Court to re- peruse the entire evidence and return reasoned findings. 6. The first document available which leads to the proof of Rakhi missing is Ex.PW-6/A; a PCR form filled up by Const.Anju Bala PW-6. The PCR form is in four parts and thus has been filled up at four different points of time; fairly close to each other. As deposed to by Const.Anju Bala PW-6, she was posted as a constable in the Police Control Room (HQ) from 8:00 PM on 3.9.2007 to 8:00 AM the next day and on 3.9.2007 at 9:06 PM she received a call from telephone No.9971247091. The caller disclosed his name as Suresh and informed her that his daughter Rakhi aged 5 years, shallow colour, wearing a Death Ref.No.01/2010 Page 4 of 50 white vest and a black underwear but without footwear was missing from 7:45 PM, which time she inadvertently recorded in the PCR form Ex.PW-6/A as 8:45 PM. It may be noted that the first entry in the PCR form Ex.PW-6/A, apart from recording as afore-noted, further records that the address of the informant was Gali No.17, Gopal Pur in front of STD booth. She further deposed that a police control room van reached the place and a personnel in the van confirmed to her that aforesaid information was correct. It may be noted that the second entry in the PCR form Ex.PW-6/A records the time as 9:26 PM and arrival of the PCR van at the spot and that the information received and as recorded initially at the police control room is correct. There is another entry, being the third which is a very cryptic entry. It records that ASI Shiv Kumar had reached the spot at 9:36 PM. The last entry records in Devnagari script: Paune saat se laapata hai. 7. Unfortunately, neither the Public Prosecutor, nor the counsel for the accused questioned Const.Anju Bala as to on what basis and on whose information she wrote at the bottom of the form by way of the third entry therein that the child was missing since 6:45 PM. 8. For record it may be noted that the police control room conveying to the police station Timarpur the said Death Ref.No.01/2010 Page 5 of 50 information of Rakhi being missing stands recorded vide DD No.65B, Ex.PW-10/A, proved by the author thereof HC Ranbir Singh PW-10, which records that the police control room has informed that Rakhi daughter of Suresh aged 5 years was missing since 8:45 PM from Gali No.17 Gopal Pur in front of the STD booth. That the child was wearing a white coloured vest and a black coloured underwear. 9. The second document which leads to the proof of Rakhi being missing and additionally throws light on the accused i.e. Ranjeet is the statement Ex.PW-1/A made by Suresh Shah, the father of Rakhi, and as recorded by ASI Shiv Kumar PW-18. It stands recorded in the statement Ex.PW-1/A that Suresh Shah is a rickshaw puller and resides as a tenant in the house of Zora Singh along with his family. Rakhi aged 5 years was his third daughter. Today evening at 7:45 PM when he was returning after plying rickshaw he saw Ranjeet with his daughter in his lap. He asked where was he taking his daughter. Ranjeet responded that he was taking her for a stroll. He went to his house at 9:00 PM and learnt from his wife that his daughter Rakhi was missing. He saw Ranjeet when Ranjeet reached his room and asked him where was Rakhi. Ranjeet replied that he had left Rakhi who may have gone to the house of her Naani. He and his wife went to the house of Death Ref.No.01/2010 Page 6 of 50 Rakhi’s Naani who also resides in Gopal Pur but learnt that Rakhi had not gone there. He and his wife returned to their house and found Ranjeet missing and thus he informed the police. 10. Making an endorsement Ex.PW-18/A beneath the statement Ex.PW-1/A, and as recorded therein, ASI Shiv Kumar PW-18 dispatched the rukka at 11:50 PM, recording therein that the time of the occurrence was 7:45 PM. Const.Bikker Singh PW-17 took the rukka to the police station where HC Dharam Singh PW-7 recorded the FIR Ex.PW-7/A and made a recording vide DD No.3A of FIR being registered. He made an endorsement Ex.PW-7/B on the rukka recording that he had entered DD No.3A at 00.10 hours on 4.9.2007 i.e. 10 minutes past midnight in the intervening night of 3rd and 4th September 2007. 11. We may note at the outset that Const.Anju Bala, HC Ranbir Singh, ASI Shiv Kumar, Const.Bikker Singh and HC Dharam Singh have deposed the relevant facts to prove the PCR form Ex.PW-6/A, DD No.65B Ex.PW-10/A, the statement Ex.PW-1/A, the endorsement Ex.PW-18/A beneath the statement Ex.PW-1/A, the endorsement Ex.PW-7/B on the endorsement Ex.PW-18/A and DD No.3A as also the FIR Ex.PW- 7/A being recorded/prepared at the time mentioned therein. Death Ref.No.01/2010 Page 7 of 50 None of them have been cross-examined on said aspect. However, we would be failing not to note that an argument was predicated upon the contents of the CDTS Trained Expert Report Ex.PW-9/A; with respect to the contents of said report that it was apparent that the FIR was ante timed. We would be highlighting the submission as we proceed along and reach the stage of our narratives pertaining to Ex.PW-9/A. Submissions were made that the FIR was ante timed based on the testimonies of Rajjo PW-2, Paramshila PW-3 and Deepak PW- 11, which we shall be noting at the appropriate stage. 12. It may be noted here itself, an argument which we would be dealing at the appropriate stage, that with reference to the fourth entry in the PCR form Ex.PW-6/A where it was recorded: Paune saat se laapata hai, it was argued that somebody must have said that and in all probability that somebody has to be Suresh Shah and this means that Rakhi was missing since 6:45 PM and thus Suresh Shah could not have seen her with Ranjeet at 7:45 PM as stands recorded in the statement Ex.PW-1/A of Suresh Shah. 13. It is apparent that if Rakhi had to be found out, Ranjeet had to be traced. As deposed to by ASI Shiv Kumar PW-18, Suresh Shah told him that Ranjeet used to drive trucks of kilns in the area of Mukherjee Nagar and suggested that Death Ref.No.01/2010 Page 8 of 50 they should look for Ranjeet in that area and accordingly he i.e. ASI Shiv Kumar PW-18 accompanied by Suresh Shah PW-1 and Const.Bikker Singh PW-17 proceeded to Mukherjee Nagar where trucks used to be parked and as deposed to by the three, Ranjeet was spotted near jhuggi of Nand Lal in Mukherjee Nagar and was apprehended and immediately arrested as per arrest memo Ex.PW-1/B, which records the time of arrest as 1:30 AM i.e. the middle of the intervening night of 3rd and 4th September 2007 and thus the date mentioned on the arrest memo is 4.9.2007. Further, as deposed to by ASI Shiv Kumar, Const.Bikker Singh and Suresh Shah; on being interrogated by ASI Shiv Kumar, Ranjeet made a disclosure statement Ex.PW-1/D, not only admitting to the crime but disclosing that after raping Rakhi at a secluded place near Gopal Pur cut he pressed the mouth of Rakhi and threw her in a water pond having water and also threw her underwear which he had removed before raping her and that a towel which he was wearing when he raped Rakhi got stained with blood which he could get recovered from his house and that he could also get recovered the underwear of Rakhi and could lead them to the place where he had thrown the dead body of Rakhi. Death Ref.No.01/2010 Page 9 of 50 14. Thus, through the mouth of Ranjeet facts came to the knowledge of ASI Shiv Kumar which showed that two more cognizable offences of rape and murder were committed and hence the information was passed on by him to the police station, a fact deposed to by ASI Shiv Kumar and confirmed by Insp.Ram Pal Singh PW-19, who immediately proceeded to Gopal Pur for the reason as per the departmental instructions issued in the National Capital Territory of Delhi, cognizable offence of murder has to be investigated by an officer not below the rank of Inspector. Needless to state, in the FIR which had stood registered for the offence punishable under Section 363 IPC, Section 201 IPC, Section 376 IPC and Section 302 IPC were added. 15. Indeed, as deposed to by Insp.Ram Pal Singh, ASI Shiv Kumar, Const.Bikker Singh and Suresh Shah, Ranjeet led the four to a pond near Gopal Pur at a distance of about 20 to 25 meters from the turning from Gopal Pur towards Ring Road. As recorded in the pointing out memo Ex.PW-1/E the dead body of Rakhi was recovered on the pointing out of the spot by Ranjeet. The body was fished out from the pond. Thereafter, Ranjeet pointed to a spot a little away from the pond, where from a pink coloured underwear Ex.P-1 was seized as entered in the memo Ex.PW-1/F. As deposed to by Insp.Ram Pal Singh Death Ref.No.01/2010 Page 10 of 50 he drew up the memos and as deposed to by ASI Shiv Kumar and Suresh Shah they signed as witness since they had witnessed the recovery of the dead body of Rakhi as also that of the underwear Ex.P-1. As deposed to by Insp.Ram Pal Singh he summoned the Crime Team. 16. Insp.Sube Singh PW-9 was posted as in-charge Mobile Crime Team, North District, and as deposed to by him he reached Gopal Pur and saw the dead body of a young girl near a pond and he inspected the spot and got the scene photographed and finally prepared the ‘CDTS Trained Expert Report’ Ex.PW-9/A. Photographer Const.Ramesh PW-8 who was a part of the Crime Team took photographs Ex.PW-8/A1 to Ex.PW-8/A5, and as deposed to by him, negatives thereof were Ex.PW-8/B1 to Ex.PW-8/B5. The photographs are obviously hazy since they were shot in the darkness of the night. A flash was used and over exposure to the light has resulted. This is visible to whosoever sees the photographs, but what needs to be noted is that the photograph Ex.PW-1/A5 shows the pond adjacent to where the dead body of Rakhi was lying. The other photographs of Rakhi show her without an underwear and only with a vest. 17. Relevant would it be to note, since an argument was advanced with reference to the contents of Ex.PW-9/A, Death Ref.No.01/2010 Page 11 of 50 that against Column No.2 where it is printed: ‘FIR/DD No.’ it has been written 65. Against Column No.8 where it is printed: ‘Date and Time of Examination’ it stands recorded: 4.9.07 - 2:30 AM to 3:30 AM. The argument advanced relatable to this document was that where was the question of the FIR being registered till 3:30 AM as claimed by the prosecution for the reason had it been so, the Crime Team which filled up the form Ex.PW-9/A would have so done after inspecting the spot and since time recorded in the Form when the team remained at the spot is 2:30 AM to 3:30 AM it was apparent that the Form was filled up after 3:30 AM. Learned counsel highlighted that since only DD entry was referred to in the Form it had to be inferred that the FIR was ante timed. 18. As deposed to by Const.Bikker Singh PW-17, Insp.Ram Pal Singh handed over the dead body of Rakhi to him for being taken to the Subzi Mandi mortuary and thus he parted company. Insp.Ram Pal Singh, ASI Shiv Kumar and Suresh Shah, as deposed to by the three, came to the room on rent with Ranjeet, which happened to be in the same building in which Suresh Shah resided and as recorded in the pointing out-cum-recovery memo Ex.PW-1/G Ranjeet picked up a towel Ex.P-2 which was hung on a peg on the wall inside the room Death Ref.No.01/2010 Page 12 of 50 and handed over the same to Insp.Ram Pal Singh stating that this was the towel which he was wearing when he raped Rakhi. 19. Though referred to as a towel, Ex.P-2 would be better described in vernacular. It is a gamcha, a multipurpose piece of cloth which can be used as a male wrap-around, a towel, a sheet spread and if needed after folding, as a head rest. 20. As deposed to by Insp.Ram Pal Singh he filled up the inquest papers, which we note have not been exhibited but are to be found at pages No.409 and 413 of the Trial Court Record. Since an argument was advanced in relation to the contents thereof, it may be noted that in the brief facts pertaining to the inquest it was written that as per the confession of Ranjeet he had raped and strangulated Rakhi and on the other document pertaining to the inquest against Column No.12 where it was indicated that information be sought as to in what manner or by what weapon or instrument marks or injuries appear to have been committed, it stands written: ‘Strangulation by hand.’ The argument was that Insp.Ram Pal Singh having not sought an opinion whether death could be by drowning suggested that he was not even aware that the body was fished out from a pond and thus his claim of being present when the pointing out-cum-recovery Death Ref.No.01/2010 Page 13 of 50 memo Ex.PW-1/E and other relatable memos were drawn is suspect. 21. As noted in para 1 above, post-mortem on the dead body of Rakhi was conducted by Dr.S.Lal PW-5, who, as deposed to by him handed over the vest of Rakhi as also her blood sample on a gauze with vaginal and rectal swabs to the investigating officer. 22. Ranjeet was taken to Aruna Asaf Ali Hospital where Dr.Preeti PW-4 examined him at 9:30 AM on 4.9.2007, as recorded on the MLC Ex.PW-4/A. She noted no external injury on Ranjeet and hence so wrote on the MLC Ex.PW-4/A. As deposed to by Dr.Preeti PW-4 she seized the undergarments which Ranjeet was wearing and handed over the sealed packet to the investigating officer. As per endorsement Ex.PW-5/A at the rear of the MLC Ex.PW-4/A, and as deposed to by Dr.S.Lal PW-5, Ranjeet was produced before him at 11:00 AM and after examining Ranjeet he wrote his observations and opinion pertaining to the physical examination of Ranjeet vide endorsement Ex.PW-5/A. He wrote in the endorsement that there were multiple reddish bluish bruises intermingling with each other, forming a large wound on the gluteal region of Ranjeet as also linear reddish bluish bruise of size 6 cm x 1 cm over back of right lower chest. He opined, a fact deposed to Death Ref.No.01/2010 Page 14 of 50 by him, that he found nothing which was suggestive or determinative of the incapacity of Ranjeet to indulge in sexual intercourse. Relevant would it be to note qua said injuries that on being cross-examined Dr.S.Lal stated that it was correct that said injuries could be possibly caused by a linear object i.e. a ‘danda’. 23. The various exhibits which were seized as afore- noted i.e. the underwear Ex.P-1 of Rakhi, the towel Ex.P-2 got recovered by Ranjeet, the vest of Rakhi, her blood sample on a gauze and her vaginal and anal swab as also the undergarments of Ranjeet which Dr.Preeti claims to have handed over to the investigating officer as per memo Ex.PW- 4/B were sent for forensic examination and as per report Ex.PX human blood group whereof was ‘A’ were detected on the blood stained gauze i.e. was the blood group of Rakhi; human blood of same group was detected on the towel Ex.P-2 as also the vest (stated to be that of Ranjeet). On the underwear, stated to be that of Ranjeet, only human blood could be detected and not the group thereof. No blood could be detected on the underwear Ex.P-1 and the vest of Rakhi. Semen could be detected only on the underwear of Ranjeet. 24. The controversy pertaining to the underwear and the vest alleged to be worn by Ranjeet when he was Death Ref.No.01/2010 Page 15 of 50 apprehended may be noted. Neither the vest nor the underwear of Ranjeet were produced in Court and identified as the ones which were seized. 25. Suresh Shah PW-1 deposed facts in complete conformity with his statement Ex.PW-1/A and no improvements, contradictions or embellishments were pointed out to us between his testimony in Court and the statement Ex.PW-1/A. Inter alia he deposed that at 7:45 PM on 3.9.2007 he saw Ranjeet carrying his daughter slightly away from his house and that he parked his rickshaw in a garage and returned to his house at 9:00 PM. In addition to the facts disclosed in his statement Ex.PW-1/A he proved by deposing that he witnessed the arrest of Ranjeet who made a disclosure statement Ex.PW-1/D and pursuant thereto led the police to a pond near Gopal Pur Road cut and pointed out the place wherefrom the dead body of his daughter was recovered as also pointed out the place wherefrom the underwear Ex.P-1 of his daughter was recovered and that thereafter he led the police to his house and got recovered the towel Ex.P-2. He affirmed his signatures on all pointing out cum recovery memos. During cross-examination he clarified that apart from himself and Ranjeet there were 10-15 other tenants in the building owned by Zora Singh. He clarified that the distance Death Ref.No.01/2010 Page 16 of 50 between his house and the garage where he parked his rickshaw was a 10-15 minutes walk. He stated that the towel Ex.P-2 was hung on a peg outside the room of Ranjeet. On being questioned as to who all were present at the place where the dead body of his daughter was found he replied that no public person and none of his relatives was present. 26. Smt.Rajjo PW-2 the mother-in-law of Suresh deposed that on 3.9.2007 her son-in-law Suresh came to her house searching for his daughter. During cross-examination she stated that she reached the house of Suresh at 8:00 PM by which time the police came. It may be noted that the learned Trial Judge has noted his observations qua Smt.Rajjo by recording that she is hard of hearing and is understanding the questions with great difficulty and that she does not understand Hindi properly. 27. Smt.Paramshila PW-3, wife of Suresh deposed that on the 3rd of a month in the year 2007 which month she could not recollect by the English calendar but was the month of Bhadrapad her daughter Rakhi went missing at around 8:00 PM. Her husband came home at 9:00 PM and told her that Rakhi was with Ranjeet. Around same time Ranjeet returned and upon inquiry from her husband replied that Rakhi may have gone to her Naani’s house. She and her husband went to Death Ref.No.01/2010 Page 17 of 50 her mother’s house who told them that Rakhi had not come to her house. They returned to their house and saw Ranjeet missing. The husband informed the police. On being cross- examined she deposed that Rakhi was playing outside at 7:30 PM and she alone searched for Rakhi till 3:00 AM and since Rakhi could not be found, as advised by her brother she slept. 28. Dr.Preeti PW-4 proved the MLC Ex.PW-4/A and stated that she handed over the undergarments of Ranjeet to Const.Jogender after duly sealing the same. Dr.Preeti has not been cross-examined. Dr.S.Lal PW-5 proved the post-mortem report Ex.PW-5/B of Rakhi and his endorsement Ex.PW-5/A at the back of Ranjeet’s MLC Ex.PW-4/A and during cross- examination stated that injuries noted by him on Ranjeet could possibly be caused by a ‘danda’. Const.Anju PW-6 proved the PCR form Ex.PW-6/A with the clarification as noted in para 6 above. HC Ranbir Singh PW-10 deposed that he recorded DD No.65B, Ex.PW-10/A when he received wireless message from the PCR of Rakhi D/o Suresh missing. He has not been cross- examined. HC Dharam Singh PW-7 deposed that he received the tehrir and registered the FIR Ex.PW-7/A at 12:10 midnight and hence recorded the date 4.9.2007. He deposed that the endorsement Ex.PW-7/B on the tehrir was in his handwriting. Relevant would it be to note that no suggestion regarding ante Death Ref.No.01/2010 Page 18 of 50 timing of the FIR was given to HC Dharam Singh and the only suggestion given was that he did not register the FIR, a fact denied by him. Const.Ramesh PW-8 deposed that he took the photographs, negatives whereof were as noted in para 16 above. Insp.Subey Singh PW-9 proved the report Ex.PW-9/A, contents whereof and the controversy relating thereto have been noted in para 17 above. 29. Const.Bikker Singh PW-17, ASI Shiv Kumar PW-18 and Insp.Rampal Singh PW-19 deposed facts pertaining to the investigation conducted and