Criminal Appeal No. 394 of 2001 1 of 35 * HIGH COURT OF DELHI : NEW DELHI + Crl. Appeal No. 394/2001 % Judgment reserved on : 09.05.2008 Date of Pronouncement : 22.07.2008 Ashok Kumar ..... Appellant Through : Mr. Sumeet 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. This is an Appeal against the judgment dated 22.04.1999 and sentence dated 26.04.1999 passed by Shri Raghubir Singh, Additional Sessions Judge; Delhi in Sessions Case No. 210 of 1996 (hereinafter referred to in short as the 'trial Criminal Appeal No. 394 of 2001 2 of 35 Court'). By the impugned judgment, the Appellant has been convicted under Sec. 302 of the Indian Penal Code (hereinafter referred in short as the „IPC‟) and has been thus sentenced to undergo life imprisonment and also to pay a fine of Rs.500/-, failing which, the Appellant is required to undergo a further rigorous imprisonment for a period of three (3) months. The Appellant, being aggrieved by the impugned judgment, has preferred the present Appeal under Sec. 374 (2) of the Criminal Procedure Code (hereinafter referred to in short as „Cr P C‟). 2. In order to deal with the issues raised in the Appeal, it would be important to set out briefly the case of the prosecution in respect of the conviction of the Appellant in the matter. The prosecution‟s case is as follows :-- 3. On 25.04.1996, one Shri Kallan Khan, the father of the deceased child, Shabana, lodged a missing person‟s complaint with the Mangol Puri, Police Station (in short the said Police Station) with respect to his child, Shabana. A Daily Diary (DD) Entry No. 21A was made out at about 1.45pm, wherein, based on Kallan Khan‟s statement it was recorded that his daughter, Shabana, aged about seven (7) years, of medium built, wearing salwar suit with red and white print, was missing since 4.00pm on 24.04.1996. Criminal Appeal No. 394 of 2001 3 of 35 4. The next day i.e. 26.04.1996 at about 2.30pm, the said Police Station received a telephonic information from Shri Kallan Khan that a foul smell was emanating from the adjoining house. Upon receipt of the said information, an entry once again was made in the Daily Dairy being DD No. 22A. Thereupon Sub- Inspector (SI) Sanjay Daral alongwith Head Constable Satpal, Head Constable Balbir Singh, Constable Bijender Singh and Constable Ram Niwas left the Police Station to investigate the matter further. On arrival at the place indicated by Shri Kallan Khan, i.e. House bearing No. F-2/289, Mangol Puri, Delhi (in short the „said premises‟) which is a house belonging to one Shri Pancham Singh, who alongwith his three sons viz Ashok Kumar (i.e. the Appellant/accused), Hem Raj and Suresh, resided in the said premises at the relevant point in time, the Police found the house locked. The Police team gained the access to the said premises which comprised of an inner room. Upon a search being carried out of the said premises, the Police team found the body of the deceased child, Shabana, wrapped in a yellow polythene stacked in a white sack on the shelf of the inner room. Soon thereafter, Shri Rajender Bhatia, Additional Station House Officer of Police Station, Mangol Puri, Delhi also arrived at the crime scene and prepared an inquest report. He also recorded the statement of the father of the deceased, Shri Kallan Khan. Criminal Appeal No. 394 of 2001 4 of 35 Based on the aforesaid events at about 6.30pm, on 26.04.1996, a First Information Report (FIR) was registered. The investigating team after carrying out a search of the said premises took into possession the following articles :- (i) a book containing obscene literature, (ii) blood stained earth, (iii) One blood stained underwear, which Shri Kallan Khan, identified as one belonging to the deceased child. The underwear also found to have pubic hair stuck on it. Based on the material seized, a seizure memo was prepared by Inspector Rajinder Bhatia, Additional Station House Officer, which was witnessed by Shri Kallan Khan, the father of the deceased child. 5. On 27.04.1996, a Post Mortem was conducted by Dr. K. Goyal. After the Post Mortem, the articles were handed over by concerned Doctor to the Police and same were seized, and a seizure memo to the same effect was prepared by SI Sanjay Daral on the very same day i.e. 27.04.1996. The articles taken into possession by SI, Sanjay Daral were a wooden box containing the viscera of the deceased child; a sample bottle containing the vaginal swab of the deceased, one plastic sack containing a salwar, shirt/frock, an underwear, a gunny bag and an envelope containing the sample of the blood of the deceased. All these articles were seized by SI Sanjay Daral with the seal of Dr. B Singh, Civil Hospital, Delhi. The Post Mortem carried out Criminal Appeal No. 394 of 2001 5 of 35 by Dr. K Goyal on 27.04.1996, at about 11.30 am, reveals that there were abrasions between the left ear and left eye, cheek, as well as, bruises on the middle of neck. The report opined that all injuries appeared to be ante mortem and were caused by use of blunt force. It further went on to opine that the pressure on the neck structure was sufficient to cause death in the ordinary course of nature. However, it pointedly records that no definitive opinion could be given with respect to whether or not the deceased child had been raped due to protrusion of external genitalia on account of decomposition. The cause of the death was given as asphyxia due to manual strangulation. The time of the death is recorded as three (3) days prior to the date and time of the Post Mortem. 6. After a great amount of effort and incessant search, on 01.05.1996, the Appellant/ accused was apprehended and arrested on being identified by Shri Kallan Khan, the father of the deceased. On the very same day, a medical examination of the Appellant was carried at Deen Dayal Hospital. In the Medical Examination conducted by Dr. Pawan Bhargva, he opined that there was no evidence to suggest that the Appellant was not capable of having sexual intercourse. The semen and under garment of the Appellant were sealed. On 02.05.1996, the Police based on the information supplied by the Appellant, Criminal Appeal No. 394 of 2001 6 of 35 discovered a metallic trunk at a place known as Village Mukandpur, Delhi. The said box was also seized by the Police in the presence of the victim‟s father, Shri Kallan Khan. The metallic trunk was, as per the prosecution case, based on the disclosure made by Appellant, attempted to be used by the Appellant to stuff the body of the deceased, so as to enable him to carry away the body of the deceased from the scene of the crime. It transpired that when, the Appellant failed to fit the body in the trunk, he carried the empty trunk and threw the same away at the site at which it was found. The police found blood stains on the inside of the trunk. Consequently, a piece of the trunk with the blood stains was seized by the police. The seized material was sent by the Police to the Forensic Science Laboratory, Malviya Nagar, New Delhi (in short „FSL‟). In all, thirteen (13) parcels were sent for analysis to the FSL which included the Salwar and shirt worn by the deceased child and the blood stained pillow found at the said premises amongst others. The FSL report also confirmed that the blood stains found on the pillow, underwear, ganji, frock/shirt, salwar, gunny bag, metallic piece taken from the trunk, were of human origin of AB Group. The semen stains on the salwar of the deceased and underwear of the Appellant/ accused matched and had an identical blood group which was of AB. Criminal Appeal No. 394 of 2001 7 of 35 7. In view of the aforesaid material collected by the Police, a report was filed with the Court and accordingly the trial court framed charges against the Appellant on 16.09.1996. The Charges framed against the Appellant were as follows :- „… That between 24.04.96 and 26.04.96, at House No. F-289, Mangol Puri, you committed rape on Km. Shabana, aged 7/8 years, and thereby committed an offence punishable under Section 376 IPC. Secondly, on the aforesaid date and place, you have committed the murder of Km. Shabana by causing her death by strangulation, and thereby committed an offence punishable under Section 302 IPC, and within my cognizance. And I hereby direct that you be tried by this Court for the above said offences. „ 8. The Appellant pleaded not guilty and claimed trial. Accordingly, trial was commenced against the Appellant. 9. At the trial, the prosecution examined Sixteen (16) witnesses. The defence did not examine any witness. 10. At this stage, it is important to note that the prosecution had listed brothers of the Appellant who were minors at the relevant point of time namely; Shri Hem Raj (PW1) and Shri Suresh (PW7), as their witness. However, they turned hostile and hence, were cross examined by the Additional Public Criminal Appeal No. 394 of 2001 8 of 35 Prosecutor. 11. The prosecution in order to prove its case that the Appellant had first raped the deceased and then caused death by manual strangulation, relied upon the testimonies of the following witnesses :-- 12. Shri Bharat Chaudhary, (PW2) was examined, who deposed that in January 1996, nearly three months before the occurrence of the crime, an altercation had broken out between the father of the Appellant / Accused and the father of the deceased child, Shri Kallan Khan. The altercation ensued, according to the said witness, on account of an attempt made by the Appellant to molest the deceased child, Shabana. Since the child‟s interest was involved, the matter was compromised between the warring parties. 13. Head Constable Dharshan Kumar, (PW3) was examined to prove the FIR (Ex.PW3/A) wherein, the information with respect to the crime on receipt of the message from the scene of the crime was recorded at about 6.30pm. 14. Smt. Anwari Devi (PW4) was examined to establish that on 26.04.1996, she identified the body of the deceased child, Shabana, in the said premises belonging to Shri Pancham Criminal Appeal No. 394 of 2001 9 of 35 Singh, that is, father of the Appellant. 15. Head Constable Ram Niwas (PW5), was examined to establish that on 27.041996, the material recovered after Post Mortem was seized and, put into four (4) parcels with the seal of Dr. B Singh, and was handed over to SI Sanjay Daral , who prepared the seizure memo Ex.PW5/A. 16. Head Constable, Mool Chand PW6, was examined to establish that the parcels received from the Inspector Rajender Bhatia on 26.04.1996 and from SI Sanjay Daral on 27.041996 and those received on 01.05.1996 from the Inspector Rajender Bhatia were received at the Malkhana of the said Police Station, and duly entered in the Register No. 19 on various dates. The said witness also deposed that on 18.06.1996, the thirteen (13) parcels and (3) three samples were sent to the Central Forensic Scientific Laboratory vide Certificate No. 140/21. 17. Dr. K Goyal (PW8), was examined to prove the Post Mortem Report. Dr. K Goyal proved his Post Mortem Report and deposed inter alia that the injuries referred to in the Post Mortem Report were ante mortem in nature and were caused by blunt force. He further opined that the pressure on the neck structure was sufficient to cause death in the ordinary course of nature. He opined that the cause of the death was manual strangulation Criminal Appeal No. 394 of 2001 10 of 35 which according to him occurred three (3) days prior to the Post Mortem. As noted hereinabove, Dr. Goyal stated that no definitive opinion could be given as regards the sexual assault as the body had decomposed. 18. Constable Jogender Singh (PW10) was examined to establish that thirteen (13) parcels and three (3) samples were deposited with the Central Forensic Science Laboratory, Malviya Nagar, New Delhi (in short CFSL) vide Certificate No. 140/21. 19. Constable Ramesh Kumar, (PW11) was examined to establish that on 26.04.1996 he was posted at the said Police Station, and that he was handed over special report by the Duty Officer for delivery to the Senior Officers, as well as, the Metropolitan Magistrate Shri Vinod Kumar. 20. Shri Kallan Khan (PW12) being the main witness of the prosecution deposed that on 24.04.1996 at about 4.00 pm, he found that his daughter, Shabana was missing. He further deposed that he, accordingly informed the Police who requested him to carry out the search of his daughter on his own. In his testimony, he says that on 25.04.1996, at about 1pm, he lodged a formal missing person‟s report with the Police. He further deposed that on 26.04.1996, he discovered that a foul smell was emanating from the said premises being adjoining house Criminal Appeal No. 394 of 2001 11 of 35 belonging to Shri Pancham Singh. He also stated that he, thereafter went in search of his daughter and when he returned at about 2.30 pm he found many people collected outside the said premises from where the foul smell was emanating. Since the said premises was locked from outside, he sought police help by ringing the helpline number 100. The Police soon reached the spot and broke open the lock of the said premises. On entering the said premises, they found an inner room, the lock of which was also broken. In the inner room of the said premises, they found blood on the floor, and on a further search a sack was discovered on the shelf of the room. Upon the sack being brought down and opened it was found to contain a yellow polythene bag. On opening the said yellow polythene bag, the dead body of the Shabana was discovered and at that point of time, she was wearing a shirt with red and white design; however, the salwar was removed. He further deposed that on a visual examination, it appeared that his daughter had been raped and killed. He further deposed that the sons of Shri Pancham Singh, namely Suresh and Hem Raj were missing since 25.04.1996. In his deposition, he further went on to say that Shri Pancham Singh was away to his native place at Madhya Pradesh for the last 10 – 12 days. He further went on to depose that he suspected the Appellant as the perpetrator of the crime as on an Criminal Appeal No. 394 of 2001 12 of 35 earlier occasion which took place in January 1996, he attempted to commit the same act with his daughter, Shabana. He accepted having given a statement to the Police (Ex.PW12/A). He also deposed that from the scene of the crime, several articles were seized such as the blood stained pillow vide memo Ex.PW12/B, one book containing obscene literature, blood stained earth, blood stained under wear with pubic hair stuck on it which was sealed in his presence vide seizure memo Ex.PW12/B. Shri Kallan Khan, (PW12) further went on to state in his deposition that he saw the Appellant being interrogated in the Police Station on 02.05.1996 when in his presence, the Appellant confessed to his guilt that he had raped and killed his daughter and since, he could not fit the body in the metallic trunk, he had stuffed the body in a polythene bag and the trunk with blood stains was thrown away by him. He admitted his signature to the disclosure statement of the Appellant being, Ex.PW12/C. He also deposed that the Appellant took them to village Mukandpur, Delhi where, in his presence, a metallic trunk was recovered. He further deposed that a piece of the trunk with blood stains was cut and seized vide seizure memo Ex.PW12/D, on which he appended his signature at point A. He also identified the metallic piece of the trunk (Ex. P-6), Salwar of the child (Ex. Criminal Appeal No. 394 of 2001 13 of 35 P-7), shirt / frock (Ex. P-8) and polythene bag (Ex. P-9). In his cross examination, Shri Kallan Khan (PW12) is stated to have said that when he returned after searching for his daughter on 26.04.1996, he found several people including his sister Smt. Anwari Devi and Smt. Madina, his sister in law, outside the said premises. He has stated in his cross examination that the lock of the said premises where the crime took place was not taken into possession by the police in his presence. He stated in his cross examination that sons of Shri Pancham Singh had not left the said premises in his presence. He denied knowledge of the fact as to when the accused/ Appellant was arrested. He further stated in his cross examination that on 02.05.1996, he was in the Police Station between 8.00 to 10.00 am and he remained there for about 1 ½ hours. He further stated in his cross examination that no public person was called when the Appellant / accused was interrogated. In his cross examination, he further states that he could not recollect the exact time when he left the Police Station to go to Mukandpur village, where the trunk was discovered. He denied that any public person gathered at the Mukandpur village. He stated that he went to Mukandpur village in a police vehicle alongwith a number of police personnel. He further states in his cross examination that a metallic piece was taken Criminal Appeal No. 394 of 2001 14 of 35 from the trunk found at Mukandpur village after procuring a metal cutter from a neighbouring shop. However, he denied any recollection as to who brought the said cutter. He accepted the fact that salwar of the child and the underwear, as well as, blood stained earth and other articles were recovered by the police in his presence. He also admitted that the fact that accused led the police to Mukandpur village to recover the trunk. 21. SI Sanjay Daral (PW13) was examined by the prosecution to establish that upon receipt of information by the Police Station he received a copy of DD No. 22A (Ex. 13A). He stated in his deposition that upon reaching the crime scene it was found that a foul smell was emanating from the said premises and also that the door was locked from the outside. He is stated to have deposed that the lock of the said premises was opened with the help of a key, however, he did not recollect from where the said key was procured. He deposed that the body of the deceased was found in a sack on a shelf of the inner room of the said premises and that the body of said child, Shabana was identified by her father Shri Kallan Khan. He further deposed that the place was photographed and blood stained earth was taken and sealed. He also deposed that the red coloured under wear of the girl child was found and was seized alongwith a blood stained pillow and book containing Criminal Appeal No. 394 of 2001 15 of 35 obscene literature vide seizure memo Ex.PW12/B which bears his signature at point B. In his cross examination, SI Sanjay Daral (PW13) stated that the information as regards foul smell was received at the Police Station at about 4.20pm, whereupon he alongwith the Constables left for the location indicated. The time span between the receipt of information and their arrival at the spot was given as 8-10 minutes. He further deposed in the cross examination that the Additional Station House Officer, Inspector Rajinder Bhatia reached the place between 4.30 to 5.00 pm. He further deposed in his cross examination that information for registration of the case was sent after two hours. He also deposed that both the body and underwear were found in the sack. He reiterated in his deposition that the articles were seized from the scene of the crime. 22. Lady Constable Somna PW14, was examined to establish that on 25.04.1996 she was working as Duty Officer at the Police Station when Shri Kallan Khan, father of the deceased child had come to record a missing person‟s report about his daughter. She deposed that she had recorded the same and made requisite entry against DD No. 21A. She further deposed that on 26.04.1996 a telephonic message was received at the Police Station that a foul smell was emanating from the said Criminal Appeal No. 394 of 2001 16 of 35 premises. The said information was recorded vide DD No. 22A (Ex.PW13/A). 23. Inspector Rajinder Bhatia (PW15), was also examined, who deposed that on 26.041996 he was posted as the Additional Station House Officer at the said Police Station , and that at about 4.20pm an information was received from Shri Kallan Khan that a foul smell was emanating from the adjoining house at F- 289, Mangol Puri. He further deposed that the said information was recorded in DD No. 22A which was marked to SI Sanjay Daral and on receiving the said information, he reached the indicated place where he found Shri Kallan Khan and other persons at the spot. On reaching the indicated place he found that the door of the said premises was closed and hence, consequently, the same was opened. He reiterated the facts which have been stated by the other witnesses about the discovery of the body of the child on the shelf of the inner room of the house. He further deposed that a private photographer was commissioned and that, after preparing the brief facts of the case (Ex.PW15/B), he also prepared the inquest report. He further deposed that he recorded statement of Shri Kallan Khan and Smt. Anwari Devi (PW4) who identified the body of the deceased Ex. PW15/D. He proved the statement of Smt. Anwari Devi (Ex.PW4/A). He deposed that he seized the articles Criminal Appeal No. 394 of 2001 17 of 35 referred to him and prepared the seizure memo (Ex.PW12/B) and that the parcels were marked and sealed with the seal of RB and were handed over to SI Sanjay Daral. He also deposed that he prepared the site plan (Ex.PW15/F). He further deposed that on 27.04.1996 SI Sanjay Daral got the Post Mortem conducted and that he deposited the exhibits received from the Hospital in the Malkhana. Shri Rajinder Bhatia, (PW15) further deposed that after searching for the Appellant / Accused at several places including Muraini and other parts of UP, he received a information that the Appellant was in Delhi and finally apprehended the Appellant at the New Delhi Railway Station near the tonga stand. He deposed that a personal search was conducted (Ex.PW15/G) and accused was arrested on 01.05.1996. He further deposed that on 2.05.1996 the Appellant was interrogated in the presence of Head Constable Om Parkash and Shri Kallan Khan when his disclosure statement (Ex.PW12/C) was recorded. He further deposed that based on the information supplied by the Appellant, a metallic trunk was recovered from the field in Mukandpur village vide memo Ex.PW12/B. On recovery of the trunk, it was found discovered that inside of the trunk was stained with blood and that a small piece of the trunk was seized vide seizure memo Ex.PW12/D. He further deposed that all the exhibits were sent to the CFSL and that, the Criminal Appeal No. 394 of 2001 18 of 35 Appellant/ accused was medically examined on 01.05.1996 when his semen, blood samples and pubic hair were preserved and