Delhi District Court
State vs . (1) Kalimullah on 30 May, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Session case No. 56/2011
Unique Case ID No.: 02404R0197362011
State Vs. (1) Kalimullah
S/o Mohd. Zafeer
R/o F280, JJ Colony,
Wazirpur, Delhi
(Convicted)
(2) Khalilullah
S/o Mohd. Zafeer
R/o D8, JJ Colony,
Wazirpur, Delhi
(Convicted)
(3) Mohd. Shabbir
S/o Mohd. MotiurRehman
R/o F319, JJ Colony,
Wajirpur, Delhi
(Convicted)
(4) Abdul Haseeb
S/o Abdul Hafeez
R/o H172, JJ Colony,
Wajirpur, Delhi
(Convicted)
FIR No.: 77/2011
Police Station: Bharat Nagar
Under Sections: 302/201/377/34 IPC, 23/26 of JJ Act and
16 Bonded Labour Act
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 1
Date of committal to session court: 23.8.2011
Date on which orders were reserved: 25.4.2013
Date on which judgment announced: 9.5.2013
JUDGMENT:
(1) As per the allegations, on or before 16.4.2011 at House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi the accused Kalimullah got deployed the child Mohin @ Moim aged about 1011 years in his factory and ostensibly procured a juvenile / child for the purpose of any hazardous employment and was having an actual charge or control over the said child, assaulted him in a manner like to cause such unnecessary mental or physical suffering. It has also been alleged that the accused Kalimullah compelled the child Mohin @ Moim aged about 1011 years to render a bonded labour. Further, as per the allegations the accused Kalimullah committed carnal intercourse with the child Moim @ Moim against the order of nature and committed the murder of the said child after causing injuries on his body with Sill (stone).
(2) It has also been alleged that on 16.4.2011 in furtherance of their common intention all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb knowingly or having reasons to believe that an offence of murder has been committed by Kalimullah, caused the evidence of the commission of murder to disappear with intention of screening the offender from legal punishment they all took the dead body of the deceased St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 2 Mohin @ Moim to Kabristaan for cremation.
BREIF FACTS / CASE OF THE PROSECUTION:
(3) The case of the prosecution is that on 16.4.2011 at about 6:43 PM an information was received at Police Station Bharat Nagar vide DD No. 27A that 1520 persons had brought the dead body of a boy aged about 1011 years from JJ Colony, Wazirpur for burial at Kabristaan Keval Park, Azadpur, Delhi and it appeared that the child had been murdered since there were injury marks on the body. The said call was marked to SI Deepak Dahiya and on being informed Inspector Ashok Kumar also reached the spot where he met SI Deepak Dahiya, Ct. Devender, ASI Durga Prashad, ASI Shashi Kumar and other staff. Inspector Ashok Kumar inspected the dead body and found various injuries on the dead body.
During inquiries Imam of the Kabristaan and one Rahees Khan informed the police that 1520 persons had come along with the dead body in the Mayyat from F Block, JJ Colony, Wazirpur, Delhi. Mohd. Khalilullah. Mohd. MotiurRehman and Chamman Ahmed were found present. Mohd. Khalilullah informed the police that the name of the child was Moim @ Chotu and was his relative but did not satisfactorily explain the injuries present on the body of the deceased. Mohd. Khalilullah further informed that the deceased was doing the work of Bindi with his elder brother Mohd. Kalimullah. Khaliullah further informed the police that on 16.04.2011 at about 3:00 PM when he went to his elder brother Kalimulla who was St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 3 residing at F280, JJ Colony, Wazirpur, Delhi he found the dead body of the child Moim but his brother Kalimulla was not present there and thereafter, he called some persons for the purpose of burial and thereafter they brought the dead body of the child to the Graveyard at Kewal Park. (4) The Tehrir was prepared by Inspector Ashok Kumar on which the present FIR was got recorded and the dead body was sent to Mortuary and his postmortem was conducted. During the course of investigation the police came to know that another child worker namely Rajjab Ali was kept in the house of one Shabbir Ahmad after which the child Rajjab Ali was recovered. On 20.04.2001 the Investigating Officer received information that other children were kept at Bhalaswa at the house of Gaffur pursuant to which two children namely Sayeed Ansari and another child was deaf and dumb were found and elder brother of deceased Moim namely Naseem were recovered and both the children were brought to JJ Colony to the house of Kalimullah. The child Sayeed Ansari also got recovered one bundle of bindi packing wrapper, one bundle of bindi packing wrapper and white and pink colour, one cartoon of kesari colour containing 64 strips of the bindi, one another kesari cartoon having raw material kept in the polythene, one diary medium size having the names of the children who were working with Kalimullah written in it, which articles were taken into possession by the Investigating Officer. Thereafter the children were produced before the Child Welfare Committee through Juvenile Officer and they were sent to Mukti Ashram by the Committee. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 4 (5) On 21.04.2011 pursuant to a secret informer the accused Kalimullah was apprehended from Inderlok Metro Station and was arrested. On 21.4.2011 Md. Khalilullah, Md. Shabbir and Md. Haseeb came to Police Station pursuant to the notices issued to them after which they were also arrested in this case. On day Police Custody remand of accused Kalimullah was obtained during which he got recovered an iron pipe used in the gas chulha. The statements of the child witnesses were for recorded through the Ld. MM under Section 164 Cr.P.C. After completion of investigations charge sheet was filed against the accused persons. CHARGE:
(6) Charges under Sections 377/302 Indian Penal Code, under Sections 23/26 of Juvenile Justice (Care and Protection of Children) Act and under Section 16 of Bonded Labour System (Abolition) Act were settled against the accused Kalimullah to which he pleaded not guilty and claimed trial. Further, charges under Sections 201/34 Indian Penal Code were settled against the accused Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb to which they pleaded not guilty and claimed trial.
(7) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 5
Prosecution witnesses:
Sr. PW No. Name of the witness Details
No.
1. PW 1 Ct. Kailash Kumar Police witness
2. PW 2 HC Suman Prashad Duty Officer
3. PW 3 Ct. Anil Police witness
4. PW 4 Ct. Devender Police witness
5. PW 5 Ct. Parvinder Singh Crime Team photographer
6. PW 6 SI Satpal Crime Team Incharge
7. PW 7 SI Manohar Lal Draftsman
8. PW 8 Ct. Sher Singh Police Witness
9. PW 9 Ct. Krishan Police witness
10. PW 10 Ct. Dev Narain Police witness
11. PW11 HC Sanjay Kumar MHCM
12. PW12 SI Pancham Singh DD Writer
13. PW 13 Dr. Neeraj Chaudhary Witness from BJRM Hospital
14. PW 14 Dr. Deepak Chugh Witness from BJRM Hospital
15. PW 15 Dr. V.K. Jha Autopsy Surgeon
16. PW 16 Dr. Rajeev Ranjan Member of the medical board
17. PW 17 Dr. Jitender Singh Member of the medical board
18. PW 18 Dr. Vijay Dhankar Member of the medical board
19. PW 19 Dr. Kunwar Sanjay Kumar Member of the medical board
20. PW 20 Dr. Gopal Krishna Witness from BJRM Hospital
21. PW 21 Smt. Khanija Khatoon Public witness
22. PW 22 Rajjab Ali Child witness/ eye witness
23. PW 23 Smt. Kanija Khatoon Public witness/ grandmother of the
deceased
24. PW 24 Smt. Nazma Khatoon Public witness/ mother of the deceased
25. PW 25 Rahis Khan Police witness
26. PW 26 Rahis Ahmed Public witness
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 6
27. PW 27 ASI Durga Prashad Police witness
28. PW28 Inspector Virender Police witness
Kadyan
29. PW29 Sh. Jitender Kumar FSL Expert
30. PW30 Mohd. MotiurRehman Public witness
31. PW31 Chakkan Ahmed Public witness
32. PW32 Balwan Public witness / transporter
33. PW33 Kamlesh Kumar Public witness/ Driver of Balwan
34. PW34 SI Deepak Dahiya Police witness
35. PW35 SI Satish Kumar Police witness/ Juvenile Welfare Officer
Note: There is no witness from PW36 to PW39 and inadvertently after PW35 the next witness started from PW40.
36. PW40 Sayeed Ansari Child witness
37. PW41 ASI Dev Raj Police witness
38. PW42 Inspector Ashok Kumar Police witness/ Investigating Officer List of documents:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW1/1 Affidavit of evidence of Ct. Kailash Ct. Kailash Kumar
Kumar (formal witness examined u/s.
296 Cr.P.C.)
2. PW2/1 Affidavit of evidence of HC Suman HC Suman Pashad
Prashad (formal witness examined u/s.
296 Cr.P.C.)
3. PW2/A DD No. 27
4. PW2/B Copy of FIR
5. PW2/C Endorsement on Rukka
6. PW3/1 Affidavit of evidence of Ct. Anil (formal Ct. Anil
witness examined u/s. 296 Cr.P.C.)
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 7
7. PW4/1 Affidavit of evidence of Ct. Devender Ct. Devender
(formal witness examined u/s. 296
Cr.P.C.)
8. PW5/1 Affidavit of evidence of Ct. Parvinder Ct. Parvinder Singh
Singh (formal witness examined u/s. 296
Cr.P.C.)
9. PW5/A1 to Photographs
PW5/A23
10. PW5/B Negatives of photographs
11. PW6/1 Affidavit of evidence of SI Satpal SI Satpal
(formal witness examined u/s. 296
Cr.P.C.)
12. PW6/A Crime Team Report
13. PW7/1 Affidavit of evidence of SI Manohar Lal SI Manohar Lal
(formal witness examined u/s. 296
Cr.P.C.)
14. PW7/A & Scaled site plans
PW7/B
15. PW8/1 Affidavit of evidence of Ct. Sher Singh Ct. Sher Singh
(formal witness examined u/s. 296
Cr.P.C.)
16. PW9/1 Affidavit of evidence of Ct. Krishan Ct. Krishan
(formal witness examined u/s. 296
Cr.P.C.)
17. PW10/1 Affidavit of evidence of Ct. Dev Narain Ct. Dev Narain
(formal witness examined u/s. 296
Cr.P.C.)
18. PW10/A Seizure memo of viscera box
19. PW10/B Handing over memo
20. PW11/1 Affidavit of evidence of HC Sanjay HC Sanjay Kumar
Kumar (formal witness examined u/s.
296 Cr.P.C.)
21. PW11/A Entry No. 240/11
22. PW11/B Entry No. 241/11
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 8
23. PW11/C Entry No. 243/11
24. PW11/D Entry No. 245/11
25. PW11/E Entry No. 16/21/11
26. PW11/F Entry No. 34/21/11
27. PW11/G FSL Receipt
28. PW11/H Entry No. 37/21/11
29. PW11/I FSL Receipt
30. PW12/1 Affidavit of evidence of SI Pancham SI Pancham Singh
Singh (formal witness examined u/s. 296
Cr.P.C.)
31. PW12/A DD No. 50B
32. PW13/A MLC of child Sayeed Ansari Dr. Neeraj Chaudhary
33. PW13/B MLC of child Rajab Ali
34. PW13/C MLC of child Moim
35. PW13/D MLC of accused Kalimullah
36. PW14/A MLC of Sayeed Ansari Dr. Deepak Chugh
37. PW14/B MLC of Rajab Ali
38. PW14/C MLC of Marta Naseem
39. PW14/D MLC of accused Kalimullah
40. PW15/A Postmortem Report Dr. V.K. Jha
41. PW15/B & Sketch diagram of weapons of offence
PW15/C
42. PW15/D Subsequent opinion
43. PW16/A Ossification report in respect of child Dr. Rajeev Ranjan, Dr.
Rajab Ali Jitender Singh, Dr.
44. PW16/B Ossification report in respect of child Vijay Dhankar and Dr.
Sayeed Ansari Kunwar Sanjay Kumar
45. PW16/C Ossification report in respect of child
Naseem @ Boka
46. PW23/A Statement regarding identification of Smt. Kanija Khatoon
dead body
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 9
47. PW24/A Statement regarding identification of Smt. Nazma Khatoon
dead body
48. PW24/PX1 Statement u/s. 161 Cr.P.C.
49. PW26/PX1 Statement u/s. 161 Cr.P.C. Rahis Ahmed
50. PW29/A Chemical analysis report Sh. Jitender Kumar
51. PW30/PX1 Statement u/s. 161 Cr.P.C. MotiurRehman
52. PW31/PX1 Statement u/s. 161 Cr.P.C. Chakkan Ahmed
53. PW34/A Application for preserving the dead body SI Deepak Dahiya
54. PW40/PX1 Statement u/s. 161 Cr.P.C. Sayeed Ansari
55. PW41/A Seizure memo of pieces of camphor, ASI Dev Raj
Lifebuoy soap along with its wrapper,
blood stained shirt & five wrapper of
camphor
56. PW41/B Seizure memo of wooden danda, stapler
and sil & batta
57. PW41/C Seizure memo of raw material for
making Bindis along with one medium
size diary
58. PW41/D Arrest memo of accused Kalimullah
59. PW41/E Personal search memo of accused
Kalimullah
60. PW41/F Disclosure statement of accused
Kalimullah
61. PW41/G Arrest memo of accused Khalilullah
62. PW41/H Personal search memo of accused
Khalilullah
63. PW41/I Arrest memo of accused Shabir
64. PW41/J Personal search memo of accused Shabir
65. PW41/K Arrest memo of accused Haseeb
66. PW41/L Personal search memo of accused
Haseeb
67. PW41/M Disclosure statement of Shabir
68. PW41/N Disclosure statement of Khalilullah
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 10
69. PW41/O Disclosure statement of Haseeb
70. PW41/P Seizure memo of iron gas pipe
71. PW42/A Rukka Inspector Ashok
72. PW42/B Rough site plan Kumar
73. PW42/C Possession taking memo of dead body
74. PW42/D Application for Autopsy
75. PW42/E Brief Facts
76. PW42/F Form 25.35
77. PW42/E1 Seizure of blood sample of accused
Kalimullah
78. PW42/F1 Site plan of graveyard
79. PW42/G DD No. 27A
80. PW42/H PCR Form
81. PW42/I Application for subsequent opinion
82. PW42/J Receipt regarding handing over of the
custody of Rajab Ali
83. PW42/K Receipt regarding handing over of the
custody of Sayeed and Boka
84. PW42/L & FSL Results
PW42/M
EVIDENCE:
(8) In order to prove its case the prosecution has examined as many
as Thirty Eight witnesses as under:
Public witnesses:
(9) PW21 Smt. Khanija Khatoon has deposed she is residing
alongwith her family comprising of two sons, one daughter. According to her, both her sons Sarfudin and Sarfela are married. Witness has further St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 11 deposed that Sarfudin is having four children comprising of two daughters and two sons and one child has recently born and Sarfela has only one daughter. According to the witness, the names of the sons of Sarfudin are Rajab who is eightnine years old and Aval who is two and a half years old.
Witness has further deposed that Shabir i.e. accused whom the witness has correctly identified in the Court is related to them being the Mamu of these children. She has testified that he (Shabir) told them that for securing the proper education to Rajab he would take him to Delhi where his own children were also studying. According to her, on this pretext he (Shabir) took Rajab to Delhi and they permitted him since he was teaching his own children also. The witness has further deposed that she used to talk to Rajab on telephone and he always told her that Shabir was keeping him properly.
(10) On Court Questions the witness has explained that when Moim was killed she was called to Delhi by the police and at that time Rajab was kept at Ibrahim Pur and when she saw him he has injuries mark on his body. According to the witness when she asked Rajab about the injures he told her that Kalimullah had given him a beating. She has further deposed that when she asked Rajab how he reached to Kalimullah, Rajab told her that Kalimullah is residing near the house of Shabbir and just that he had killed Moim Kalimullah had given him beating and has killed him. (11) In her cross examination by Ld. Defence Counsel the witness has deposed that she did not know Kalimullah nor he is not related to her. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 12 According to the witness, she had not seen Kalimullah giving beatings to Rajav nor she had handed over Rajab to Kalimullah and has voluntarily explained that they had sent him to Delhi along with Shabir for studying. Witness has denied the suggestion that she had made false allegations against Kalimullah at the instance of police and Rajab was never beaten by Kalimullah. Witness has also denied the suggestion that Rajab never told her that he was ever beaten by Kalimullah.
(12) PW22 Rajab Ali is the Child Witness aged about nine years and his statement has been recorded in vernacular in QuestionAnswer form without oath. He has stated that his family is comprising of his parents, grandmother and four brothers & sisters and he is the eldest son of his parents. According to the witness, he had come to Delhi from Bihar six days prior and previously also he had come to Delhi he stayed for two years. The witness has stated that he had come to Delhi for studying purposes in summer vacations along with his brother Shabir (accused) and was staying with Shabir in Delhi (Main Parne Likhne Ke Liye shabir Ke saath Garmi Ki chutti Main Aaya Tha aur uske saath Dilli Mein Rehta Tha). When asked how may days he stayed with Kallimullah the witness replied that he stayed with Kallimullah for a few days since he (Kallimullah) had beaten him after which Shabir got him treated and paid the expenses (Main Kam hi din raha. Usne Mujhe Maar Peet Kar Bhaga Diya. Shabir Ne Mera Ilaj Karaya. Uska Bahoot Kharcha Hua). According to the witness, he had come to Delhi twice and on first occasion St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 13 Kallimullah did not give him beatings but on second occasion Kalimmulah gave beatings to him (Main Do Bar delhi aaya. Pehli Baar Kalimulla Ne Mujhe Nahi Mara. Doosari Baar Mara). He has further stated that he was doing the work of Bindi with Kallimullah (Main Kalim Ke Paas Bindi Ka Kaam Karne Ke Liye Aaya). The child witness has also stated that Kallimullah used to pay Rs.10/ whereas his (Kallimullah's) brother used to pay him Rs.20/ despite that he was not working with him (Das Rupey deta Tha. Uska Bhai Bees Rupey deta Tha . Uske Yahan Kaam Bhi Nahi Karta Tha). He does not remember the name of the brother of Kallimullah but has correctly identified Khalilullah as brother of the accused Kalimullah in the Court.
(13) According to the witness, he was residing at the house of Khalilullah and on Sundays he used to go to the house of the brother of Khalilullah and on next day morning he used to go to the house of Kalimullah (Main Khaliulla ke ghar rehta tha. Sunday Ke din uske Bhai Ke Ghar Chala jata tha. Agle Din Subeh Subeh Khalimulla Ke ghar aata tha). He has further stated that he had worked with Kalimullah for ten days when he was tortured by Kalimullah and Shabir got him treated (Maini Uske yahan das din kaam kiya. Usne Mujhe Lohe Se Daga. Uske Baad Shabir Ne Mera Ilaj Karaya). During his examination in the Court the child witness has pointed out towards his buttocks in the Court and explained that Kalimullah had inserted the iron pipe in his private St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 14 parts pursuant to which he was unable to even walk and it was Shabir who used to take him to the toilet. When asked if Kalimullah had also put red chilli powder in his private parts (a fact which the child had earlier disclosed), the witness admitted the same and stated that it was Shabir who had got him treated. (Q. Tum Ko Wahan Lal Mirch Bhi Dali Thi? Ans. Ji. Kalimullah Ne Dali Thi. Again he said that Shabir Ne Hi Ilaj Karaya Tha). The witness has also stated that thereafter he was sent to the house of Shabir where his hairs from his head were got removed and Rs.5,000/ were given to the doctor for this treatment (Uske Baad Mujhe Shabir Ke Ghar Bhej Diya Jahan Mujhe Takla Karya. Paanch Hajar Rupey Kharch Kiye). When asked as to why his hairs were removed / cut the child witness has replied that Kalimullah hit him with a stapler on his head due to which he received injuries and it was Shabir who spent Rs. 5,000/, gave him medicines and clothes (Kalimullah Ne Sar Par steppler Mara Jisese Chot Aaye. Shabir Ne Paanch Hajar Kharch Kiye. Goliya Bhi di thi. Shabir Ne So Rupey Goliyo Ke Liye diye The. Kapde Bhi Diye The). According to the witness, when police had come then his grandmother had come from his house. He has further stated that from the Chowki he was taken to Boys Home and also took him to the hospital. He has stated that he had gone to the Court where he had told everything to uncle (Ld. MM) and had put his thumb impression. It has been observed by this Court that the statement of the child under section 164 Cr.P.C. is Ex.PX3 bearing his St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 15 thumb impression at point A. (14) When asked if he knew Moim and whether it was residing along with him and Kalimullah, the child witness replied that Moim was killed after he had left and not in his presence (Q. Kya Tum Moim Ko Jante Ho? Who Tumahare saath Rehta Tha Kalimullah Ke Paas? Ans. Mere Jaane Ke Baad Moim ko mara. Mere Samne Nahi Mara. Mere Jaane Ke Baad Mara).
(15) In his cross examination by Ld. Defence counsel, witness has admitted that when his statement was recorded by the Ld. MM he had told him that he was tortured by Kalimullah who had put red chilli powder in his private parts. However, when confronted with his statement Ex.PX3 the said fact is not found so recorded. According to the witness, he had been hit with the patri on his head. He has explained by gestures that it was a wooden plank on which one sit commonly called Pidi/ patra. The witness has further stated that he had told to the Ld. MM that Kalimullah had hit on his head. However, when confronted with statement Ex.PX3 the said fact is not found so recorded. According to the witness, police had met him outside the court and he had told them the manner in which he was beaten (Unhone batya tha ki mujhe ese ese mara). He has denied that police had told him that Shabir had spent money and has stated that he was told about the same in the Chowki. He has denied that he had not been beaten by Kalimullah or that he had given his statement on the tutoring of police and has insisted that he was beaten (Mujhe Maara Tha). St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 16 (16) PW23 Mrs. Kanjia Khatoon is the grandmother of deceased Moim who has identified his dead body in the hospital vide statements Ex.PW23/A and after postmortem dead body was handed over to them vide memo Ex.PW10/B. This witness was not cross examined by Ld. Defence Counsel despite opportunity given.
(17) PW24 Mrs. Nazma Khatoon is the mother of deceased Moim who has deposed that Shabir whom the witness has correctly identified in the Court who was having his maternal uncle's residence in her native place, had brought her son Moim to Delhi for studies. According to her she had spoken to her son Moim on phone who told her that he is well. She has testified that she came to know from the villagers that her son Moim expired on which she came to Delhi along with her mother and motherin law in order to perform the last rites of her son. She has also deposed that from the Railway Station she went to the police station from where she was brought to the mortuary of the hospital where she identified the dead body of her son Moim vide Ex.PW24/A and after postmortem dead body was handed over to them vide memo Ex.PW10/B. She has deposed that police did not record her statement.
(18) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein she has admitted that along with her son Moim, her other son Nasim who is dumb (unable to speak) had also come to Delhi. She has denied the suggestion that both of them were brought to St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 17 Delhi by Kalimullah and has voluntarily explained that Shabir had brought them to Delhi and said that he would educate them and also teach them work and give vocational training. The witness has also denied the suggestion that Kalimullah had told her that the life of her children would be made if she send them with him and has voluntarily explained that Shabir had told her this. She has further denied the suggestion that when she spoke to Moim on the phone he had told her that he was doing the work of making bindies and that Kalimullah used to frequently thrash him and has voluntarily explained that he had only stated that Shabir was keeping him well.
(19) The witness has been declared Hostile by Ld. Addl. PP for the State and during her cross examination by Ld. Addl. PP for the State, witness has denied the suggestion that accused Kallimullah is son of her distantly related Mausi and has voluntarily explained that she even does not know him. Witness has denied the suggestion that Kalimullah brought her son Moim and Nasim to Delhi about 34 months prior to the death of his son Moim; that Kalimullah asked her that he took her son to Delhi for their study and to teach them work and for that they will be well versed in life; that she sent her son Moim and Nasim with Kalimullah to Delhi; that whenever her son Moim spoke to her on phone and he told her that he was doing the job of making the bindi and he also told that Kalimullah used to beat him and she thought that since her son is a child and it may be possible that some mistakes were committed by them for which reason they St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 18 were being scolded. However, when confronted with her statement Ex.PW24/PX1 the above facts were found so recorded. According to her, she also did not tell the police that Kalimullah is the maternal uncle/mamu of the children. Witness has admitted that she came to Delhi with a police official who had come to her village to give her the information of the death of her son. She has also admitted that she came to know in Delhi that Kalimullah had beaten her son to death in the intervening night of 15/16.04.2011. According to her, she is not known to any Mohd. Zafaar. She has denied the suggestion that he is her relative and the father of Kalimullah. Witness has admitted that house of Kalimullah is situated in the same area and has voluntarily explained that it is about 56 meters away to her house but states that she never visited his house. Witness has further explained that she was able to tell the distance of his house only because she knew how far the area where his house is situated from her house and has voluntarily explained that she had never gone to his house. According to the witness she has never gone to the house of Shabir nor she know where his house is situated and has voluntarily explained that he had come to her house.
(20) The accused Kalimullah has been specifically put to the witness by the Ld. Addl. PP for the State but she refused to identify him stating that she does not know Kalimullah. Witness has denied the suggestion that she was deliberately not identifying accused Kalimullah before the court because he is related to her and due to the pressure of the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 19 relatives and religious leaders she was deliberately not identifying him. She has also denied the suggestion that she had been won over by Kalimullah and it is for this reason she was trying to save him. This witness was not cross examined by the Ld. Defence Counsel despite opportunity given.
(21) PW25 Sh. Rahis Khan has deposed he is residing in Gali No. 9, Block A, Part I, Mukandpur, Delhi for the last 78 years as a tenant. According to the witness, he is a daily wages labour and is also working as Consultant with Intazimia committee, Muslim Kadimi Kabristan, Kewal Park Road, Azadpur. According to him on 16th of the month he does not recollect but it was almost one year ago, it was around 5:00 PM, he saw around 2022 persons from JJ Colony Wazirpur had come to Kabristan with the dead body of the child. He has testified that he noticed that they were in a hurry to perform the burial of the child on which he got suspicious and asked them the reason for the same on which they told him that the child had expired in the morning and because it was summer season therefore they were in a hurry to perform his burial. According to the witness, he was not satisfied and therefore he immediately made a PCR call and informed the police. He has further deposed that after the police came and checked the body which he also saw, it was found that the body had large number of injury marks as if that the child had been beaten (mar pit ke nishan) and all these 2022 St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 20 persons had run away from the spot as soon as he had made the PCR call. (22) Leading questions were put by Ld. Addl. PP for the State, wherein the witness has deposed that the police had recorded his statement but he is not aware what they had recorded. Witness has denied the suggestion that before the police had come he had seen the body of the child by removing the cloth and finding injury marks on the same, he called the police and has voluntarily explained that he removed the cloth after the police came to the spot in their presence and on their directions. (23) In his cross examination by Ld. Defence counsel, witness has deposed that the police had shown him the statement in the morning on the day of his deposition in the court which he had read himself. (24) PW26 Sh. Rahis Ahmed has deposed he is residing at F282, JJ Colony, Wazirpur, Delhi and apart from the said house they have two other houses, i.e. F280 and F281, JJ Clony, Wazirpur. According to him at the time of the incident he was working with the Cable Operator as a line man and the ground floor of house No. F280 had been given on rent to Kallimullah R/o Madhubani, Bihar (whom the witness has correctly identified in the Court) since fourfive months prior to the incident. He is unable to tell the details of his family members and how many children used to reside along with him but states that he (Kalimullah) used to do the work of bindi making. Witness has further deposed that on 16.04.2011 he had gone to the school of his son for getting his admission done and he does not know anything about any incident.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 21 (25) Leading questions were put by Ld. Addl. PP for the State wherein he has witness has admitted that his statement was recorded by the police. According to the witness, he had told the police that the house has been given on rent to Kalimullah perhaps for Rs.1,500/ to 2,000/ per month but he is not sure about the actual rent. Witness has denied the suggestion that he had told to the police that accused Kalimullah was having four children and out of which his eldest child was of the age of 4 years and remaining children were below the four years; that except four children of Kalimullah four other children of age of 1012 years were also living in the said ground floor; that he asked Kalimullah not to take work from those children on which that Kalimullah told him that the other four children were his relatives and he used to teach them and also gave training for work; that in the intervening night of 15/16.04.2011 at about 1AM (midnight) he was returning from the house of his relative and when he reached at house No. 280, he heard the hue and cry of a child and also heard the weeping of the child, on which he knocked the door and made inquiries from accused Kalimullah who told him that one of the child became ill and he was treating the child by spiritual manner and also told that the child become ill very often but he (Kalimullah) did not open the door so he went to his house. However, when confronted with his statement Ex.PW26/PX1 the said facts were found so recorded. He has admitted that accused Kalimullah used to close the front door of the said house and used the side door for his use. Witness has denied the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 22 suggestion that on the said day at about 33:30 PM many public persons gathered in front of the accused of Kalimullah, he also reached there and at the same time Kalliulah came out from the house when asked as to what happened he replied that one child who was ill had died and he further told that the child was of his relative and he had already telephoned his relative; that he asked Kallilulah about the whereabouts of accused Kalimullah on which he replied that Kalimullah had gone to attend morning prayers; that he tried to see inside the house through the door and noticed that accused Shabir a resident of the same gali and accused Abdul Hasib were giving the bath to the child and preparing the shroud (kafan) and they were in hurry and child was covered with a cloth. However, when confronted with statement Ex.PW26/PX1 the above facts were found so recorded. According to him since it is a religious ritual not to show the body of the deceased to any body that is why he could not see the child. Witness has identified the accused Kalliluah in the Court as the brother of accused Kalimullah.
(26) The witness has further denied that he told to the police in his statement that at about 4 PM, he suggested Kalliluah to offer the "asar ki namaz" at 5 PM and thereafter took the body for burial at Kabristan but he told him that they would offer this prayer in the Kabristan itself; that they then removed the dead body in a vehicle and went away and he returned to his house; that at about 67 PM he came to know the name of that child was Moim who was having beating marks on his person; that Kallimullah St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 23 gave beatings to him in the night to kill and he heard the noises in the night and he was in suspicion in the night itself because Kalimullah used to beat all the children and that is why in the morning itself he ran away and as per planning Kallilulah, accused Shabir and accused Haseeb taken the dead body of the Moim to Kabristan. However, when confronted with statement Ex.PW26/PX1 the above facts were found so recorded. (27) The Ld. Addl. PP for the State has pointed out towards the accused Shabir and accused Abdul Hasseb and suggested to the witness that accused Shabir was residing in the same gali and was present in the house of accused Kalimullah and was giving bath to the dead body of Moim, for which the witness has stated that he is not known to accused Shabir. The Ld. Addl. PP for the State has also pointed out towards the accused Abdul Hasseb and suggested to the witness that accused Abdul Haseeb was present in the house of accused Kalimullah and was giving bath to the dead body of Moim and thereafter he removed the dead body along with accused Kalliulah to the Kabristan, for which the witness has stated that he is not known to Abdul Haseeb. He has denied the suggestion that he knew each family in the locality because he used to deals in cable work or that he has won over by the accused persons since they are related to him and being of the same religion. Witness has also denied the suggestion that due to pressure of the relatives of the accused persons he was not telling the truth before the court which was initially told by him to the police. This witness was not cross examined by Ld. Defence counsel St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 24 despite opportunity granted.
(28) PW30 Mohd. Motiur Rehman has deposed that he used to sell scent (itar) and muslim's cap (topi) near the Bari Masjid situated at JJ Colony, Delhi and he is not known to any person namely Khalilullah. According to him, on 16.04.2011 he was sleeping at his house and at about 34 PM he went to Masjid to ease himself and two persons namely Shabir and Hashim followed him and informed him that one boy was expired and told him to arrange a vehicle. Witness has further deposed that he inquired about the age of the boy and they told him that age of expired boy as 12 years after which he made a call to a driver for the vehicle after which one vehicle make TATA came there and was parked near the bus stop No.115. The witness has also deposed that when he was sitting at the tea stall for tea he saw funeral / mayat going and he also participated in the same being a ritual. Witness has further deposed that again he went to offer prayer at Azadpur and went to the burial ground and asked the Imam about the dead body but he found none over there. According to the witness, Imam told him that he would inform him as has suspicion about it, he further told him that the dead body was not related to him. Witness has further deposed that thereafter Imam after making inquiries from his committee persons they all informed the police control room by dialing 100 number. He has also deposed that he was taken to the Police station Adarsh Nagar and police make inquiries from him and he inform the police which he has told on that day.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 25 (29) Leading questions were put by Ld. Addl. PP for the State wherein she has admitted that police recorded his statement after interrogations. He has however denied the suggestion that on 16.04.2011 at about 3:304 PM Khallillulah came to his house and informed him that one boy who was working for making Bindi at the house of Kallimullah had died due to some illness. He has admitted that he called the TATA 407 for the pyre procession. Witness has denied the suggestion that he went to the house of Kalimullah at house No.F280, JJ Colony and saw that many persons were standing outside the house and when he entered into house, he saw that Khalliullah was standing there and Shabir and Mohd. Haseeb who were known to him were bathing the dead body of a boy and they just covered the dead body with a shroud (kafan) when he entered in the room and on this he was suspicious. The witness has further denied the suggestion that he wanted to remain inside of the house to see the dead body because he has suspicion but Khallimulah told him to go outside and he was in hurry. He has admitted that he met Chakan Ahmed and they both had taken tea at the tea shop but has denied the suggestion that at the burial ground Kalliullah, Shabir and Abdul Haseeb were showing haste is burring the dead body or that the name of the deceased child was Moim and his age was about 10 years and the relative of Kalimullah. He has further denied the suggestion that Rahis Khan member of the Kabristan committee was suspected after seeing the above said persons and he removed Kafan from the dead body and saw injury marks on the face and St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 26 the other parts of the body of the deceased. He has also denied the suggestion that when the police reached there Shabir and Abdul Haseeb slipped away from there and they did not allow Kalimullah to go away from there; that deceased Moim was working in the house of Kalimullah, brother of Khalliullah to make bindies along with 34 boys at his house and Kalimullah used to give beatings to him and due to serious beatings Moim had died. Witness has denied the suggestion that Kalimullah, his brother Khalliullah brought the dead body of Moim for buring the same after making conspiracy with Shabir and Abdul Haseeb after making the false facts to him. The witness is unable to identify the accused Khalliullah and Kalimullah in the Court but has correctly identified accused Abdul Haseeb and accused Shabir by pointing out towards them and also by name. However, in his crossexamination when the witness was confronted which his statement Ex.PW30/PX1 the above facts were found so recorded. He has denied the suggestion that he has not deposed the true facts before the court as he has been won over by the accused persons. (30) In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that Haseeb and Shabir accused asked him to call a vehicle for removal of dead body.
(31) PW31 Chakkan Ahmed has deposed that he is residing at E172, JJ Colony, Delhi along with his family and he is into business of sale of ice. According to him on 16.04.2011 at about 3:304 PM he was taking tea at a shop when he noticed that a funeral procession passing St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 27 through the area comprising of about 1520 persons and as a Muslim he joined the same and when they reached the cremation ground, he went to offer Namaj along with Motiur Rehman and Rahis who was a member of the Kabristan Committee and on his return did not find anybody as all the persons who had brought the coffin to the cremation ground had left the body and gone away. The witness has deposed that he told Rahis to make a call to the police and when the police came, he told them that he had joined the funeral procession from half the way. He has also deposed that the police opened the coffin and the body was of a small child aged about 1011 years whose name they later on came to know as Moim. Witness has further deposed that thereafter he came to the Police Station Adarsh Nagar with the local police where his statement was recorded. He has correctly identified the accused Khalliullah, Mohd. Shabeer and Abdul Haseeb as the persons who were accompanying the funeral procession but he is not aware of their names.
(32) Leading questions were put by Ld. Addl. PP for the State, wherein he has admitted that the police had interrogated him at Adarsh Nagar Police Station and his statement was recorded which is Ex.PW31/PX1 and he told the police, whatever he has stated to the court. Witness has admitted that he had joined the funeral procession on the asking of his friend Motiur Rehman. Witness has further deposed that he did not tell the police that Motiur Rehman had told him that the funeral St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 28 procession was of a small child and he did not tell the police the names of the accused whom he has identified in the court neither he told them that they are residents of JJ colony, Wazirpur. According to the witness, he also did not tell the police that the accused were in a hurry to bury the body as a result of which he became suspicious and had voluntarily explained that he became suspicious when the coffin was left at the spot unattended and every body had gone away from the burial ground. The witness has testified that there was no committee member due to which reason, he asked Rahis to make a PCR call. According to the witness he did not tell the police that Kallimullah is into business of making bindies and deceased child used to work with him nor he told the police that Khalliullah who is the brother of Kallimullah had conspired along with Shabir and Abdul Haseeb to bury the child in the burial ground and in pursuance to the same had collected persons to attend to the burial by giving them false information. Witness has further deposed that he also did not tell the police that these persons had murdered the child and thereafter tried to cause disappearance of evidence. However, when confronted with his statement Ex.PW31/PX1 the aforesaid facts were found so recorded. Witness has denied the suggestion that he has been won over by the accused due to which reason, he was not giving the complete facts. This witness was not cross examined by the Ld. Defence Counsel despite opportunity given.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 29 (33) PW32 Sh. Balwan has deposed he is into business of transport. According to him on 16.04.2011 Kallimullah had sent a request to his office for sending one vehicle LG at JJ Colony, Wazirpur for taking a coffin/ funeral procession to burial ground at Azadpur which was hired for Rs.800/. The witness has deposed that after about 34 PM he had send two vehicles on the given address at Wazirpur JJ Colony out of which one vehicle was returned as sufficient persons to join the funeral were not there and only vehicle bearing No. HR60C0334 was retained. According to the witness the said vehicle took the coffin and persons joining the funeral to Azadpur Burial ground and the driver of vehicle Kamlesh returned from the burial ground at about 6 PM. He has not been cross examined by the Ld. Defence Counsel despite opportunity given.
(34) PW33 Sh. Kamlesh Kumar has deposed he is a resident of Village Toripur Dahrauta, PS Mau, District Illahabad and is a driver by profession employed with Balwan who is running a transport company under the name and style of Balwan Transport company at Plot No. 519, Shehjada Bagh, Inder Lok. According to him on 16.04.2011 his owner Balwan asked him to take the vehicle i.e. Tempo/ TATA 407 bearing No. HR600334 to Wazirpur JJ colony for taking a funeral procession to burial ground at Azadpur and on his directions he took the vehicle to 115 Bus Stop, JJ colony, Wazipur at 4:30 PM and thereafter he took the coffin along with 1520 persons to Azadpur Burial ground where he left them. Witness has further deposed that after taking the hire charges/ rent of the vehicle, St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 30 he came back to the office of his owner and owner had send another vehicle but the same was returned as sufficient persons to accompany the funeral were not there. This witness was not cross examined by the Ld. Defence Counsel despite opportunity given.
(35) PW40 Master Said Ansari S/o Hasbul Ansari is the child witness aged about 11 years. He has been examined by this Court in Vernacular in QuestionAnswer form without oath. During the course of his examination this Court observed that the child witness was smelling of tobacoo/ Gutkha and when questioned by the Court as what he had consumed, but he had refused to admit that he had consumed anything. He does not support the prosecution case in any manner. (36) The witness has stated that they are three brothers and two sisters and his father is doing the work of selling bangles. According to the witness, he was not doing any work with anybody and he had come to Delhi to study. He has further stated that he does not remember the school and was learning alif, be or te at the house of Shabir without paying any fees to him. He has correctly identified the accused Shabir in the Court and stated that he had come from Bihar alone. When asked if he knew Kalimuddin and Moim, he refused stating that he is not known either to Kalimuddin or Moim. He has further stated that he had come from his house at Bihar from the morning train and had stayed at the house of Shabir.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 31 (37) Ld. Addl. PP put leading questions to the witness wherein he has stated that he does not remember if the police recorded his statement. Witness has denied the suggestion that his statement was recorded by the police under Section 161 Cr.P.C. which is Ex.PW40/PX1 wherein he had told the police that he used to work in the factory of accused Kalimullah; that besides him, Boka, Moim and Kalim also used to work in the factory of accused Kalimullah. He has however admitted that one Rajab due to fear of beatings by accused had left the work in the factory and had gone to accused Shabir. Witness has denied the suggestion that he had told the police in his statement that accused Kalimullah used to get the work done from them from 7:008:00 AM to 12:001:00 AM (midnight) and used to give them beatings; that one day accused Kalimullah had given beatings with hot iron rod on the hip of Rajab; that accused Kalimullah used to give them beatings with stapler, iron rod and dalgotni; that on 15.4.2011 accused Kalimullah had given beatings to Moim and had tied his hands and feet with rope and thereafter gave him beatings with dalgotni and sillbatta and also hit his head many times with the wall, due to which he became unconscious; that he had told the police that accused Kalimullah hit on the chest of Moim with sillbatta and after sometime Moim expired and this incident occurred in midnight.
(38) The child witness was declared hostile by the Ld. Addl. PP for the State and in his crossexamination the witness has denied the suggestion that Shabir had told him as to what he had to state before this St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 32 Court. He has denied the suggestion that he has been won over by the accused Kalimullah as he want to save him or that accused Kalimullah used to give beatings to me, Boka, Moim and Kaleem, with iron rods, stapler and dalghotni. The accused Kalimuddin was put to the witness who stated that he is not known to Kalimuddin. (Mujhe nahi pata ki ye kaun hai. Yeh jhooth hai ki mai Kalimuddin ko jaan ke nahi pehchan raha). This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity.
Witnesses of medical records:
(39) PW13 Dr. Neeraj Chaudhary has deposed that on 20.04.2011 patient namely Sayeed Ansari, aged about 12 years, male had been brought to the hospital for medical examination with alleged history of physical assault beaten by employer as told by the patient himself and as per local examination old scar marks were present on the forehead and at the time of examination there was no fresh injury (bleeding present on the body).
Witness has proved that MLC of the patient was prepared by Dr. Ranjeet which MLC is Ex.PW13/A which was prepared under the supervision of Dr. Meet.
(40) He has further proved that on 17.04.2011 one patient Rajab Ali, aged 8 years male was brought in the casualty for medical examination and as per local examination no fresh injury was seen at the time of examination. According to him, old scar marks over partieo occipital St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 33 region, old scar marks over the forehead and chin, multiple scar marks over neck and chest, old scar mark on epigastrium region, old scar marks 45 in number on both the forearms, multiple scar marks on back region and buttock region were found. According to the witness the MLC Ex.PW13/B in respect of the above patient was prepared by Dr. Saneesh under the supervision of Dr. Meet.
(41) The witness has also proved that on 20.04.2011 elder brother of Moim (i.e. Naseem) aged about 12 years, male was brought in casualty for medical examination with alleged history of physical assault and as per local examination five days old healing wound over forehead left side, old scar marks over forehead, old scar marks on the back of the body were present. He has testified that the MLC Ex.PW13/C of the above patient was prepared by Dr. Ranjeet under the supervision of Dr. Meet. (42) According to the witness on 21.04.2011 patient Kallimulla @ Kalim (accused) aged about 29 years male, was brought in casualty by police with alleged history of sexual assault and the patient was examined by Dr. Ranjeet who referred the patient to surgery SR and seen by Dr. Annu Babu and on local examination there was no fresh injury on the body. He has proved the MLC of accused Kallimulla which is Ex.PW13/D. (43) In his cross examination by Ld. Defence Counsel, the witness has admitted that all the patients whose MLCs have been proved by him were not examined in his presence. According to the witness he does not St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 34 have any personal knowledge about the MLCs and all the above MLCs were not prepared in his presence and he has deposed only on the basis of official records.
(44) PW14 Dr. Deepak Chugh has deposed on 25.04.2011 patient namely Sayeed Ansari, aged about 12 years male was brought to the casualty for medical examination for suspected sexual assault and the patient was examined by Dr. Hari Om Kumar who referred the patient to surgery SR and was examined by Dr. Yatender SR Surgery vide MLC Ex.PW14/A. According to him as per the endorsement by Dr. Yatender at encircled D it seems that the sexual assault was not done. (45) Witness has further deposed that on 25.04.2011 patient namely Rajab Ali aged about 8 years male was brought by the police for medical examination with suspicion of sexual assault and the patient was examined by Dr. Hari Om Kumar who referred the patient to surgery SR and was examined by Dr. Yatender SR Surgery vide MLC Ex.PW14/B. He has proved that as per the endorsement by Dr. Yatender at encircled D it seems that the sexual assault was not done.
(46) According to the witness on 25.04.2011 patient namely Marta Naseem aged about 12 years male was brought by the police for medical examination with suspicion of sexual assault and the patient was examined by Dr. Hari Om Kumar who referred the patient to surgery SR and was examined by Dr. Yatender SR Surgery vide MLC Ex.PW14/C. He has St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 35 testified that as per the endorsement by Dr. Yatender at encircled D it seems that the sexual assault was not done.
(47) Witness has further deposed that on 22.04.2011 patient namely Kalimullah S/o Mohd. Jafir, aged about 29 years male was brought to the hospital for medical examination and was examined by Dr. Yatender vide MLC Ex.PW14/D. According to him, as per the endorsement made by Dr. Yatender is at point C "accused unable to ejaculate semen at present. The semen cannot be preserved". This witness was not cross examined by the Ld. Defence Counsel despite opportunity given and hence his testimony has gone uncontroverted.
(48) PW15 Dr. V.K. Jha has deposed that on 21.04.2011 he had conducted the postmortem on the dead body of Moim S/o Samim, aged about 1011 years which body had been sent by Insp. Ashok Kumar of Police Station Bharat Nagar and identified by Ct. Dev Narain. According to the witness built of the body was moderate, rigormortis had passed off and postmortem staining was present at back, eyes were closed, Conjunctiva was congested and cornea was hazy, mouth was partially open and tongue was inside. He has proved that on examination following injuries were present on the dead body:
1. Diffuse bruise on left thigh, right and left glutean region, on the back of chest in saccral region, reddish brown in color of size varying from 15 cm x 9 cm to 6 cm x 3cm.St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 36
2. Bruise on left leg in the middle 9cm x 4cm grennish in color.
3. Multiple bruises on left arm right arm, left forearm, right forearm, left dorsum of head, reddish brown in color, size varying from 9cm x 4 cm, to 6 cm x 2cm.
4. Multiple bruise on front of chest size varying from 4cm x 2cm to 2 cm x 1 cm. Some of them are reddish brown in color and some of them are grennish and blackish.
(49) The witness has further proved that on internal examination of Head, there was subscalp hematoma on occipital and frontal region; on internal examination of chest there was bruising of intercostal muscles on 6,7 & 8 space on the right side and there was dislocation of ribs on costochondral junction on left side with intercostal bruising of 5,6,7 & 8 ribs of the left side; on internal examination of abdomen, there was laceration of right side of lever 9cm x 3cm x 1cm, abdominal cavity contain about 1.5 liter of liquid and clotted blood and there was tear laceration of about 1cm x 1cm on external anal sphincter at 2 O'clock position. According to him, after postmortem examination he opined the cause of death as combined effect of hemorrhagic shock and asphyxia consequent to repeated blunt forced impact diverted upon the body., Postmortem findings were consistent with repeated assault as evident from injuries of different durations, Liver laceration was ante mortem in nature excluding all other injuries being caused by blow over abdomen. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 37 The witness has proved having opined that time since death was approximately five days and total number of inquest papers were 14 in number which were returned to the Investigating Officer along with the Postmortem Report which is Ex.PW15/A. According to him, after postmortem examination clothes, blood gauze piece and blood and viscera were preserved in common salt sealed with sample seal of mortuary and Anal swab was preserved to rule out sodomy.
(50) Witness has further deposed that on 21.05.2011 Investigating Officer moved an application before him regarding subsequent opinion of weapon of offence and on that day he received four sealed packets duly sealed with the seal of AK. According to him on opening Parcel No.1 it found to contain "sill & batta"; Parcel No.2 was found to contain a Stapler; Parcel No.3 was found to contain a wooden stick and Parcel No.4 was containing gas iron pipe. He has testified that the detailed sketch diagram of the said weapon of offence was prepared by him which are Ex.PW15/B and Ex.PW15/C. According to him after examination of weapon of offence he gave his opinion which is Ex.PW15/D according to which injury No.1 and 2 injury as mentioned under the head internal examination of chest could have been caused by "sill and batta" and head injury could have been caused by "sill and batta", Injury No.3 and 4 could have been caused by stapler or gas iron pipe. He has proved that after examination all the packets were resealed with the sample seal of the mortuary. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 38 (51) He has also correctly identified the case property i.e. one sill and batta which are collectively Ex.P1; one stapler which is Ex.P2; one rusted iron gas pipe which is Ex.P3 and one wooden stick which is Ex.P4. (52) The FSL report which is Ex.PX7 collectively running into three pages has been shown to the witness in the court according to which report no semen has been detected on the anal swab.
(53) In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that he has not mentioned the durations of the injuries in the postmortem report and has voluntarily explained that the colour of the bruises have already been mentioned which depicts the durations of the bruises. According to him the injuries were both old as well as fresh durations and after seeing the postmortem report witness has clarified that all the injuries were of old durations. (54) On a specific Court Question the witness has explained that the last injury at serial No.2 and some of the injury at serial No.4 were of within 24 hours before death.
(55) He has denied the suggestion that his opinion on the cause of death is not based on medical science. According to the witness he can give his opinion regarding final cause of death after seeing the chemical analysis report of blood and viscera.
(56) PW16 Dr. Rajeev Ranjan (HOD) Radiology, BSA Hospital, PW17 Dr. Jitender Singh HOD (Ortho), PW18 Dr. Vijay Dhankar, St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 39 (HOD) Forensics and PW19 Dr. Kunwar Sanjay (Dental Surgeon) are all the members of the Medical Board. They have proved having examined the patient Rajjab Ali, Sayeed Ansari and Naseem @ Boka on 26.4.2000 and on the basis of physical, dental and radiological examination, they gave their report in respect of the patients. All the above witnesses have proved the report in respect of Rajjab Alli which is Ex.PW16/A according to which the estimated age of Rajjab Ali was between 7 to 9 years. They have further proved the report in respect of Sayeed Ansari which is Ex.PW16/B and as per their opinion the estimated age of Sayeed Ansari S/o Saibul Ansari was between 10 to 12 years. The above witnesses have also proved the the report in respect of Naseem @ Boka S/o Shamim which is Ex.PW16/C according to which the estimated age of Naseem @ Boka S/o Shamim was more than 11 less than 16 years. All the above four witnesses have not been cross examined by the Ld. Defence Counsel despite opportunity given and hence their testimonies have gone uncontroverted.
(57) PW20 Dr. Gopal Krishna has deposed that on 22.04.2011 patient namely Kalimullah, S/o Mohd. Jafir aged about 29 years male was brought to BJRM hospital for medical examination and was examined by Dr. Yatender and Dr. Susheel vide MLC Ex.PW14/D according to which "accused unable to ejaculate semen at present. The semen cannot be preserved". This witness was not cross examined despite opportunity St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 40 given and hence his testimony has gone uncontroverted. FSL witnesses:
(58) PW29 Sh. Jitender Kumar SSO (Chemistry), FSL Rohini has deposed that on 30.06.2011 one sealed parcel was received in the office of the FSL and same was marked to him for examination. According to the witness he opened the parcel and found three exhibits i.e. Ex.1A, 1B and Ex.1C. He has further deposed that after chemical, TLC and GCHS examination no common poison was detected in the exhibits. He has proved his detail report in this regard which is Ex.PW29A. This witness was not cross examined by the Ld. Defence Counsel despite opportunity given and hence his testimony has gone uncontroverted.
Police/ official witnesses:
(59) PW1 Ct. Kailash Kumar is a formal witness who has been examined by way of affidavit which is Ex. PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 22.06.2011 he collected the pullandas of this case and deposited the same at FSL Rohini and handed over the copy of RC and receipt of FSL to HC Sanjay MHC(M) CP.
This witness was not cross examined by the Ld. Defence Counsel despite opportunity and his testimony has gone uncontroverted. (60) PW2 HC Suman Prashad is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 41 per the provisions of Section 296 Cr.P.C.) wherein he has proved having lodged DD No.27A copy of which is Ex.PW2/A. He has also proved having recorded the FIR of the present case copy of which is Ex.PW2/B and his endorsement on the rukka which is Ex.PW2/C. This witness was not cross examined by the Ld. Defence Counsel despite opportunity and his testimony has gone uncontroverted.
(61) PW3 Ct. Anil is again a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 30.06.2011 he collected the viscera box of this case vide RC No. 37/21/11 and deposited the same in FSL Rohini vide receipt which he handed over to HC Sanjay MHC(M) CP. This witness was not cross examined the Ld. Defence Counsel despite opportunity and his testimony has gone uncontroverted. (62) PW4 Ct. Devender is a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has deposed that on 16.04.2011 he was on Emergency Duty along with SI Deepak from 8 AM to 8PM and when they were returning after attending a PCR call of theft by breaking car glass in front of H.No. 125 Bharat Nagar, the Duty Officer called SI Deepak Dahiya on his mobile phone and told that dead body of a boy has been brought to Azadpur Kabristan who has been murdered and murder has been committed in JJ Colony Wazirpur. According to him on the above St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 42 information he accompanied SI Deepak Dahiya to the place of occurrence where SHO Adarsh Nagar with staff was present and dead body of a boy kept in the iron coffin was also there and on checking of the dead body numerous red injury marks over the body were found. Witness has further deposed that meanwhile Insp. Ashok Kumar also reached at the spot who gave an application to SI Deepak Dahiya for deposition of dead body in BJRM hospital and Insp. Ashok Kumar took him to the place of occurrence at H. No. F280, JJ Colony Wazirpur where he got inspected and photographed the place of occurrence by the Crime Team. Witness has further deposed that at 10:40PM Insp. Ashok Kumar gave him a rukka and sent him to police station to get the case registered on which he went to Police Station and gave the rukka to Duty Officer HC Suman who lodged an FIR in computer and gave him a computer copy of FIR and original rukka. He has proved that he returned at the place of crime and gave a computer copy of FIR and original rukka to Insp. Ashok Kumar. (63) In his cross examination by Ld. Defence counsel, the witness has deposed that they had received the call at about 06:45 PM after which they reached the spot within 20 minutes i.e. by 7:057:10 PM. According to him there were few public persons present at the spot but is unable to tell their names and in his presence neither the SHO nor SI Deepak made the inquiries from the public persons. Witness has further deposed that he reached the Police Station by taking a lift on motorcycle along with the rukka in ten minutes i.e. about 10:15 PM. Witness has denied the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 43 suggestion that the FIR has been anti dated and ante time. (64) PW5 Ct. Parvinder Singh is a formal witness being the Crime Team photographer who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken the photographs of the place of occurrence and dead body which photographs are Ex.PW5/A1 to Ex.PW5/A23 and negatives of the same are collectively Ex.PW5/B. (65) In his cross examination by Ld. Defence counsel, the witness has deposed that he had reached the spot i.e. Kabristan along with the Crime Team at about 7 PM and has voluntarily explained that they had received the call at 6:30 PM. According to the witness when they reached the spot the dead body was lying in the coffin at Kabristan and has voluntarily explained that after the entry to the Kabristan there is another room where the dead body was kept. Witness has further deposed that coffin was open and there were no clothes on the body when he took the photographs. He has testified that there were public persons present at the spot when he took the photographs but he is unable to tell whether the photographs show the presence of the public persons and has voluntarily explained that he had only taken the photographs of the dead body and in some photographs some persons in civil dress are shown but he cannot tell whether they are public persons or police officials. (66) PW6 SI Satpal is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW6/1 St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 44 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the place of occurrence and prepared the Crime Team Report which is Ex.PW6/A which he handed over to the Investigating Officer. (67) In his cross examination by Ld. Defence Counsel, the witness has deposed that the dead body was not brought to the Kabristan in his presence and at the time they reached the spot the coffin was opened and the cloth over the dead body was also removed. According to him they reached the spot at about 7 PM and the clothes of the deceased child which he has mentioned in his report Ex.PW6/A were not seized in his presence by the Investigating Officer.
(68) PW7 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited both the places i.e. H.No. 280 Wazirpur JJ Colony and Kabristan Azadpur and having prepared the scaled site plans which are Ex.PW7/A and Ex.PW7/B. (69) In his cross examination by Ld. Defence Counsel, the witness has deposed that he had shown the various positions in the site plan on the basis of the information given to him by Insp. Ashok Kumar, particularly the spots marked A, B and C on Ex.PW7/A. (70) PW8 Ct. Sher Singh is again a formal witness who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 45 Section 296 Cr.P.C.) wherein he has proved that on 23.05.2011 he collected four pullandas sealed with the seal of AK containing Sil Batta, pieces of wooden stick, stapler and iron gas pipe vide RC No. 16/21/11 which he took to Dr. V.K. Jha in mortuary BJRM Hospital. According to the witness, Dr. V.K. Jha checked the exhibits in all four pullandas and handed over to him his report and khaka of gas pipe, sil batta, two pieces of stick and stapler (total three pages) and all four pullandas sealed with the seal of mortuary BJRM and he (witness) handed all four pullandas to HC Sanjay MHC(M) CP and handed over the three pages report to Insp. Ashok Kumar. This witness was not cross examined despite opportunity and hence his testimony has gone uncontroverted.
(71) PW9 Ct. Krishan is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 16.0442011 he delivered the Special Report at the residence of joint Commissioner of Police at 13, Mahadev Road, residence of DCP on Pusa road, residence of Addl. DCPI at Pandara road, residence of Addl. DCPII at Police Colony Andrews Ganj and ACP's residence at Chankyapuri and at the residence of Ld. ACMM at Shalimar Bagh on government motorcycle bearing No. DL1SS2577. This witness was not cross examined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 46 (72) PW10 Ct. Dev Narain is also a formal witness who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 21.04.2011 after the postmortem of deceased Moim in mortuary BJRM hospital doctor handed over to him viscera box, three pullandas duly sealed with the seal of FMT BJRM hospital Delhi and sample seal, which he handed over to Insp. Ashok Kumar who seized the same vide memo Ex.PW10/A. The witness has also proved that after postmortem the dead body was handed over to its relatives vide Ex.PW10/B. This witness has not been cross examined by the Ld. Defence Counsel despite opportunity given and hence his testimony has gone uncontroverted.
(73) PW11 HC Sanjay Kumar is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry No.240/11 in Register No.19 copy of which is Ex.PW11/A; copy of entry No.241/11 which is Ex.PW11/B; copy of entry No.243/11 which is Ex. PW11/C; copy of entry No.245/11 which is Ex.PW11/D (running into six pages); entry no.16/21/11 in Register No.21 copy of which is Ex.PW11/E; entry No. 34/21/11 copy of which is Ex.PW11/F; receipt issued by FSL copy of which is Ex.PW11/G; entry bearing no.37/21/11 in Register No.21 copy of which is Ex.PW11/H and receipt issued by FSL copy of which is Ex.PW11/I. This witness was not cross examined by the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 47 Ld. Defence Counsel despite opportunity and his testimony has gone uncontroverted.
(74) PW12 SI Pancham Singh is a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 16.04.2011 at about 6:10 PM a PCR call was received in police station Adarsh Nagr which was lodged vide DD No.50B by him which is Ex.PW12/A. This witness was not cross examined despite opportunity and his testimony has gone uncontroverted.
(75) PW27 ASI Durga Prashad has deposed on 16.04.2011 he was on Emergency Duty from 8.00AM to 8.00PM at Police station Adarsh Nagar and at about 6.10PM on receipt of DD No.50B Ex.PW12/A regarding a dead body being brought to the Kabristan pursuant to murder. According to him on receipt of the DD he alongwith Ct. Chaman reached at Kewal Park, Kabristan where they met some of the Committee members and there they found the dead body of a small child in an iron Taboot. According to him on opening the taboot they found that the dead body had a large number of injury marks and it appeared that there was a Maar Pitai with the said boy and they were informed by the committee officials that the dead body had been brought by Kalimullah R/o F Block JJ Colony Wazirpur, Delhi. Witness has deposed that further enquiry revealed that apart from Kalimullah, there was one Khalilullah amongst the persons who had brought the dead body to the burial ground. He has testified that in the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 48 meanwhile SHO also came to the spot and inspected the dead body and informed the PCR about the position since the place of incident fell within the jurisdiction of Police station Bharat Nagar. According to him after sometime SI Deepak came from Police Station Bharat Nagar with staff and Inspector Ashok Kumar also came after some time and he handed over the dead body to him.
(76) In his cross examination by Ld. Defence counsel, witness has deposed that he is not aware the names of any of the committee members who were present at the spot. He has denied the suggestion that he has given the names of Kalimullah and Khalilullah at the instance of the Investigating Officer or that no such name was given to him by any committee official.
(77) PW28 Inspector Virender Kadyan has deposed on 16.04.2011 he was posted at Police Station Adarsh Nagar as SHO and on that day at about 6.006.30PM a call was received in the Police Station vide DD No.50B Ex.PW12/A that dead body of a child had brought at Kabristan, Kewal Park, Azadpur, Delhi who had been murdered. According to him on receipt of this information he reached at the Kabristan where ASI Durga Prasad and Ct. Chaman were present alongwith some committee members and he also found that dead body of a child of aged about 1012 years was lying in an iron taboot. According to him on checking the dead body he found a large number of red coloured injury marks on the dead body on various places and it appear to be a homicidal St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 49 case where the child appeared to have died on account of severe beatings. He has testified that on further inquiry he came to know that the dead body had been brought by some persons from the area of F Block, JJ Colony Wazirpur. Witness has further deposed that since the said area fell under the jurisdiction of Police Station Bharat Nagar, he informed the Control Room about the position and also informed the Crime Team. He has also deposed that after sometime SI Deepak Kumar and Inspector Ashok Kumar and other staff from Police Station Bharat Nagar came to the spot and in the meanwhile the officials of the Crime Team also reached there. Witness has further deposed that the body of the child was handed over to them and on 17.04.2011 Inspector Ashok Kumar recorded his statement. This witness was not cross examined despite opportunity. (78) PW34 SI Deepak Dahiya has deposed that on 16.04.2011 he was posted at Police Station Bharat Nagar and on that day he was on Emergency Duty from 8 AM to 8 PM along with Ct. Devender who was also on emergency duty and at about 6:43 PM while he was attending another call within jurisdiction of Police Station Bharat Nagar regarding the breaking of a window of a car, he received a telephonic information from duty officer regarding DD No. 27A and asked him to reach Azadpur, Burial Ground, Kewal Park road where a dead body of a child had been brought with injury marks on his body. Witness has further deposed that on receipt of this information, he and Ct. Devender went to burial ground at Azadpur where SHO Adarsh Nagar, Insp. Virender Kadyan was also St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 50 present along with his staff and on inquiry SHO Insp. Virender Kadyan informed him that the dead body of a child of 1011 years had been brought by some persons from JJ colony Wazirpur having injury marks all over the body. The witness has further deposed that he thereafter opened the coffin and checked the body himself and found injury marks all over the body on which he immediately informed the SHO Police Station Bharat Nagar and after the SHO came to the spot, on his directions he took the dead body to BJRM Hospital mortuary. Witness has further deposed that there Investigating Officer moved an application to the Incharge Mortuary, carbon copy of which is Ex.PW34/A to preserve the dead body. According to him, he thereafter left Ct. Dev Narain to guard the body after which he returned and till the body remained in his presence, it was not tampered.
(79) In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that he did not record the statement of any one on the spot.
(80) PW35 SI Satish Kumar has deposed that on 17.04.2011 he was posted at Police Station Bharat Nagar as Juvenile Welfare Officer and on that day he had joined the investigations of this case along with Insp. Ashok Kumar and at about 1:30 PM (after noon) he accompanied the Investigating Officer at F319, Wazirpur JJ colony, Delhi, as they came to know that one child namely Rajab Ali who was working with Kallimullah could be traced at F319. According to the witness when they reached the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 51 second floor of the house, then they found a small child of about 8 years along with one lady and they interrogated the lady who told them that the child was his nephew/ bhanja and disclosed the name of the child as Rajab Ali. He has testified that he made inquiries from the child who informed that he was resident of Madhubani Bihar and had been working with Kallimullah in his bindi factory, situated at F280, ground floor, Wazirpur for the last many years and he further informed that Kallimullah used to give beatings to him. During the examination of the witness an objections was raised by the Ld. Defence Counsel being a hearsay U/s 162 Cr. P.C, however the said objection was overruled since the information was being directly given by the child to whom the beatings have been inflicted). He has also deposed that the child also shown them the old injury marks on his body and Investigating Officer recorded the statement of the child under Section 161 Cr.P.C. and thereafter on the directions of the Investigating Officer he took the child for his medical examination at BJRM hospital and after his medical examination conducted, he produced the child before the CWC Kingsway camp after which the child was left at Mukti Ashram, Ibrahimpur. He has testified that on 20.04.2011 he was called by the Investigating Officer at F280, JJ colony, Wazirpur where he went and found that two more children had been recovered. According to the witness, the children were interrogated and they found that one child was deaf and dumb and therefore they could make inquiries from one child only. He has further deposed that thereafter both the children were St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 52 taken to BJRM hospital for their medical examination and after their medical examination both the children were produced before the CWC after which on the directions of the CWC, the children were taken to children home for boys at Mukti Ashram, Ibrahimpur and admitted them. He has also deposed that again on 25.04.2011 he accompanied the Investigating Officer and three children were taken to BSA hospital for getting their medical examination conducted to rule out sexual assault and their ossification test regarding age determination were also conducted. (81) In his cross examination by Ld. Defence counsel, witness has deposed Investigating Officer had not given him directions in writing and all directions were oral. Witness has admitted that he had gone with the Investigating Officer to JJ colony in his vehicle. According to him the name of the lady whom they had met on the second floor was Farida but he is not aware if Farida's statement was recorded by the Investigating Officer and has voluntarily explained that he had only made inquiries in his presence but not recorded her statement. Witness has denied the suggestion that the child Rajab Ali did not make any statement to the Investigating Officer informing him that he was working with Kallimullah or that Kallimullah used to beat him. Witness has also denied the suggestion that the child did not show any injury marks to him regarding the said beatings. According to him, the Investigating Officer made inquiries from the neighbours regarding the child but did not record their statement in his presence. He has further deposed that they had gone to the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 53 house of Kallimullah after the statement of the child was recorded. According to the witness the accused Kallimullah was also in police custody at that time and one person from the police station was on guard on the house. He has further deposed that the Investigating Officer made inquiries from the neighbours around the house of Kallimullah regarding Rajab Ali but did not record any statement of the neighbours in his presence. According to him the statement of the child Rajab Ali was recorded in the house itself. He has denied the suggestion that no statement of Rajab Ali was recorded nor he made any allegations against Kallimullah. Witness has also deposed that only he appeared before CWC along with the child and not the Investigating Officer and Farida was not accompanying the child to the CWC but Farida was orally informed that the child was being produced before CWC. According to him, nothing was given in writing to Farida as to where they were taking the child nor did he send any information to the parents of the children, informing them that the children had been produced before the CWC and has voluntarily explained that Investigating Officer must have informed but he also inform the raiding staff who was already in Madhubani Bihar and asked them to inform their families. The witness has testified that no information was sent to the families in writing. He has also deposed that Farida had told the Investigating Officer that the child was residing there for the last 34 years. According to the witness, at the time these children were recovered no NGO was informed and has voluntarily explained that the NGO were St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 54 informed later on. He has further deposed that the CWC told them that they were no longer required in the issue and they had associated the NGO "Bachpan Bachao". He has admitted that the two children recovered later on had been recovered by the Investigating Officer before he reached the spot and has voluntarily explained that he was only given the information regarding the recovery of the children, when he reached the spot. Witness has denied the suggestion that no child had made any statement to the Investigating Officer or that all the statements of the children were recorded by the Investigating Officer of his own only to create evidence against the accused Khallimullah.
(82) PW41 ASI Devraj has deposed that on 16.4.2011 he was posted as ASI at Police Station Bharat Nagar and on that day DD No. 27A was received to SI Deepak Dahiya that 1220 persons of JJ Colony had brought one dead body of a child who had sustained injuries in Adarsh Nagar Kabristan, Kewal Park Azadpur. According to him on this information SI Deepak Dahiya left for the spot and he along with SI Satish Kumar, HC Mukesh, Ct. Anil, Ct. Deepak, Ct. Om Prakash and Ct. Dev Narayan reached F Block, JJ Colony, Wazirpur and on reaching there he came to know that the dead body of a child had been taken to Kabristan from House No. F280. He has testified that they remained at the spot and after sometime Inspector Ashok Kumar reached there and he handed over to him a copy of DD No.27A. Witness has further deposed that in the meanwhile, Crime Team was also called by the Investigating Officer and Crime Team St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 55 inspected the spot and the photographer took the photographs after which the Investigating Officer lifted some pieces of Camphor (Kapoor) lying on the bench in the room and prepared a parcel of the same. He has also deposed that Investigating Officer also lifted one Lifebuoy soap and its wrapper lying there and prepared a parcel of the soap and the wrapper and Investigating Officer affixed the seal of AK on the said parcels. According to him in the back room one blood stained shirt of a small child was lying which was lifted by Investigating Officer who prepared a parcel and affixed the seal of AK on the same and five wrapper of the Camphor were also lying in the room of northern direction and Investigating Officer also prepared a parcel of the same and affixed the seal of AK. He has proved that the Investigating Officer seized the aforesaid parcels vide memo Ex.PW41/A. (83) According to the witness, on 20.4.2011 he again joined the investigations with Investigating Officer Inspector Ashok Kumar and on that day in the search of accused Kalimullah and the victim children they reached Delhi Railway Station after which they reached JJ Colony Wazirpur where a secret informer met the Investigating Officer and informed that Ajimullah the relative of accused Kalimullah was residing in the area of Bhalswa Dairy and victim children could be present there. Witness has further deposed that on this information, they reached Bhalswa JJ Colony where one person namely Gaffur met them and informed that one person had left two children in the street and now the said children St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 56 were with him. He has further deposed that on inquiry the names of the children were known as Sayeed Ansari S/o Saidal Ansari and the other boy was deaf and dumb. Witness has also deposed that the name of the father of deaf boy was told by Sayeed Ansari as Shami Ahmed. According to him, the investigating Officer inquired from Sayeed Ansari who gave his statement regarding his working in the factory of accused Kalimullah from 8:00 AM to 12:00 AM and also about incidents of beatings and also told the Investigating Officer that he could get recover the weapons with which he was given beatings by the accused Kalimuillah. He has also deposed that thereafter both the children led them to House No. F280, JJ Colony where the children pointed out towards the house and also pointed one wooden danda broken into two pieces, total length of the two pieces was 34.7 cms; one stapler make Kangaroo; one silbatta and one packing of rope bundle and informed them that the children were given beatings by the accused with the aforesaid articles. The witness has proved that the Investigating Officer prepared separate parcels of the aforesaid parcels and affixed the seal of AK on the said parcels and seized the same vide seizure memo Ex.PW41/B. According to the witness thereafter both the children pointed out the inner room of the said house where the raw material in plenty was lying which was used for preparing the Bindi i.e. one packet of red and yellow colours of packet of Bindi; one packet of Bindi packing wrapper of while and green colour; one kesari colour box containing 64 straps of Bindi; one kesari colour box containing white coloured straps of St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 57 Bindis and one medium size diary on the front page of which 'multi colour note book' was written and the first page of the diary the name of Mohd. Kalimullah was written in blue pen. According to him, in the inner pages of the diary, names of the children Sayeed, Rajab, Moim, Nasim, Ashraf, Mohd. Kalim and Khalil working in the factory of accused were written. He has proved that the Investigating Officer prepared five parcels separately of the aforesaid articles and seized the same vide memo Ex.PW41/C. (84) The witness has testified that on 21.4.2011 he again joined the investigations with Investigating Officer Inspector Ashok Kumar and on that day he along with the Investigating Officer and other staff was present at JJ Colony Wazirpur where a secret informer came and informed the Investigating Officer that the accused Kalimullah was present near Inderlok Metro Station and was waiting for his known person. According to the witness the Investigating Officer requested fourfive passersbye to join the proceedings but no one agreed and left without disclosing their names and addresses. He has also deposed that they immediately reached near Inderlok Metro Station where at the pointing out of the secret informer Investigating Officer apprehended the accused Kalimullah (whom the witness has correctly identified in the Court) who was standing near Rithala Railway Line. The witness has explained that he knew accused Kalimullah previously as he was victim in one case investigated by him. Witness has further deposed that Investigating Officer interrogated the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 58 accused and then arrested him vide memo Ex.PW41/D, his personal search was conducted vide memo Ex.PW41/E and thereafter the Investigating Officer recorded the disclosure statement of the accused vide Ex.PW41/F. Witness has also deposed that they came to the Police Station along with the accused and coaccused namely Haseeb, Khalilullah and Shabir were already present at the Police Station and they were also arrested by the Investigating Officer. The witness has proved the arrest memo and personal search memo of accused Khalilullah which are Ex.PW41/G and Ex.PW41/H; the arrest memo and personal search memo of accused Mohd. Shabir which are Ex.PW41/I and Ex.PW41/J and the arrest memo and personal search memo of accused Haseeb which are Ex.PW41/K and Ex.PW41/L. Witness has further deposed that thereafter the Investigating Officer recorded the disclosure statements of the accused Shabir, Khalilullah and Haseeb which are Ex.PW41/M to Ex.PW41/O respectively.
(85) He has testified that on 22.4.2011 he again joined the investigations with the Investigating Officer and on that day all the accused were produced before the concerned court from where accused Khalilullah, Shabeer and Haseeb were sent to Judicial Custody and Investigating Officer obtained one day police custody remand of the accused Kalimullah. According to him during the police custody remand the accused led the police party to House No. F280, JJ Colony, Wazirpur, Delhi and got St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 59 recovered one old iron pipe lying below the gas stove which the Investigating Officer measured and its length and width came to be 29.5 cm and 1.5 cm respectively after which the Investigating Officer prepared the parcel of the same and affixed the seal of AK and seized the same vide memo Ex.PW41/P. (86) He has correctly identified all the accused in the Court and also identified the case property i.e. one sill and batta which are collectively Ex.P1; one stapler which Ex.P2; one rusted iron gas pipe which is Ex.P3; one wooden stick which is Ex.P4; one packet of rope bundle which is Ex.P5; one packet of red and yellow colours of packet of Bindi which is Ex.P6; one packet of Bindi packing wrapper of white and green colour on which the words in English 'Narayna Designer Bindi' are written which is Ex.P7; one kesari colour box containing 64 straps of Bindi which are collectively Ex.P8; one kesari colour box containing white coloured straps of Bindis which are collectively Ex.P9; one medium size diary on which 'multi colour note book' written which is Ex.P10; some pieces of Camphor which are collectively Ex.P11; one Lifebuoy soap along with the wrapper which are collectively Ex.P12; one blood stained shirt as the same as recovered from the House No. F280, JJ Colony which shirt is Ex.P13 and some pieces of Camphor as the same as recovered from the Room No. F280, JJ Colony (the house of accused Kalimullah) from northern directions which are collectively Ex.P14.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 60 (87) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that Sayeed Ansari and other child deaf and dumb did not tell anything in his presence to the Investigating Officer as stated by him in the examination in chief including working in the factory of Kalimullah and incidents of beatings. He has also denied the suggestion that both the children did not lead the Investigating Officer and did not get recover the articles mentioned by him in his examination in chief from House No. F280, JJ Colony, Wazirpur. The witness has further denied the suggestion that accused Kalimullah was not arrested in the manner as stated by him in his examination in chief or that he was called by the Investigating Officer on phone to the Police Station and he thus surrendered in the Police Station. He has also denied the suggestion that no disclosure statement of accused was recorded which is stated by him as Ex.PW41/F. Witness has admitted that no public witness was joined at the time of recording of said disclosure statement. He has denied the suggestion that no disclosure statement was made by accused Kalimullah and he was forced to sign the said statement in the police station. According to him the disclosure statement of other three accused which are Ex.PW41/M, PW41/N and Ex.PW41/O respectively were recorded at the Police Station. Witness has admitted that no public witness was joined at the time of recording the said disclosure statements. Witness has denied the suggestion that the recovery of other articles as stated by him from the house of accused Kalimullah were not effected in his presence or that the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 61 concerned memos were prepared at the police station at the instance of the Investigating Officer.
(88) PW42 Insp. Ashok Kumar is the Investigating Officer of the present case who has deposed that on 16.04.2011 he was posted at Police Station Bharat Nagar as ATO and on that day, he received information vide DD No. 27A that one dead body of a child was brought at Graveyard at Azadpur, Kewal Park road and the dead body was having injury marks on which he reached there. According to him SI Deepak Dahiya along with Ct. Devender of Police Station Bharat Nagar along with the staff of Police Station Adrash Nagar and ASI Durga Prasad, ASI Shashi Kumar and other staff of Police Station Adrash Nagar were present. Witness has further deposed that he noticed that one dead body of a child aged about 1011 years was wrapped in a white clothes and was kept in iron coffin. According to the witness, he inspected the dead body and found that there were injury marks on the person of the dead body and some blood stained marks were also present there on the face and the chest etc. He has further deposed that the Imam Sh. Rahis Khan was also present there and on enquiry he told that the said dead body was brought from Fblock, JJ colony, Wazir Pur, Delhi for its burial and about 1520 persons were also present who came with the dead body for burial in the graveyard. According to him one person namely Mohd. Khalilulla, Chakkan Ahmad and Moti Ur Rahman were also present there and on enquiry, Md. Khalilulla told that the name of the dead body of the child was Moim @ St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 62 Chottu S/o Shammi Ahmad, R/o Distt. Madhubani, Bihar who was of his relative. Witness has further deposed that he also made enquiries regarding the injuries marks on the person of the dead body but he (Khalilullah) could not replied satisfactorily and informed him that the said child was working with his elder brother Kalimulla and used to make bindis and was also reside there. According to him Khalilullah further told that on 16.04.2011 at about 3:00 PM when he went to his elder brother Kalimulla who was residing at F280, JJ colony, Wazirpur, Delhi he found the dead body of the said child Muin but his brother Kalimulla was not present there and thereafter, he called some persons for the purpose of burial and thereafter they brought the dead body of the child to the Graveyard at Kewal Park. According to him, thereafter he left SI Deepak Dahiya at the spot to safeguard the dead body whereas he along with other staff went to F280, Ground Floor, JJ Colony, Wazirpur along with Khalilullah. He has testified that Crime Team was also called there who inspected the scene of the crime and took the photographs of the scene of the crime. The witness has further deposed that no eye witness was present there and thereafter, he prepared the rukka which is Ex.PW42/A which he handed over to Ct. Devender for registration of the FIR on which Ct. Devender left the spot and went to Police Station. The witness has proved having prepared the rough site plan of the spot i.e. the house of the accused Kalimulla which is Ex.PW42/B and Ct. Devender returned back handed over the copy of the FIR and rukka to him. Witness has further deposed St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 63 that he also took into possession the dead body of the child Muin vide Ex.PW42/C from the house of the Kalimulla and lifted the pieces of Camphor lying in the room on a bench, some red colour soap lying on the bench and one blood stained shirt of a child of black and white, voilet and Saleti and also wrapper of the camphor which were kept into the separate parcels and were taken into possession vide Ex.PW41/A and the dead body was sent to BJRM hospital for postmortem through Ct. Dev Narayan. He has also deposed that he prepared a request for preservation of the dead body for 72 hours which is Ex.PW42/A and thereafter during the course of investigation he came to know that one another child worker namely Rajjab Ali was kept in the house of coaccused Shabbir Ahmad on which they went to the house of accused Shabbir Ahmad and the child Rajjab Ali was recovered. According to him, coaccused Shabbir was not present at that time however, his wife Farida was present there. The witness has testified that the Juvenile Welfare Officer was called and statement of Rajjab Ali was got recorded and after his medical examination he was sent to Child Welfare Committee and they send the said child to Mukti Ashram. He has further deposed that on 18.04.2011 he tried to search the accused persons but they could not be traced.
(89) The witness has further testified that on 20.04.2001 he received information that other children were kept at Bhalaswa on which they went to Bhalaswa at the house of Gaffur at the instance of the secret informer where two children namely Sayeed Ansari and the other child was deaf St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 64 and dumb were found and elder brother of deceased Muin namely Naseem were recovered and both the children were brought to JJ Colony to the house of Kalimulla. According to him child Sayeed Ansari told that Kalimulla used to give beatings to the children for taking the work on which he recorded the statement of child Sayeed Ansari. He has also deposed that the child Sayeed got recovered weapon of offences from the house of accused Kalimulla by disclosing that he used to give beatings by those weapons. Witness has further deposed that they found one wooden danda having two pieces and one side was burnt on measurement total length of danda was 34.7 cm, one stapler having black handle, one silbatta, one polythene having packing robe. According to the witness the child informed them that on the day of incident Kalimulla tied the hands and legs of Muin and the sill was kept on his chest and hip after which he (Muin) was given gave beatings with the danda. He has further proved having prepared the memo Ex.PW41/B. According to the witness the child Sayeed Ansari also got recovered one bundle of bindi packing wrapper, one bundle of bindi packing wrapper and white and pink colour, one cartoon of kesari colour containing 64 strips of the bindi, one another kesari cartoon having raw material kept in the polythene, one diary medium size having written the name of the children who were worked with him which articles were taken into possession by preparing a parcel and sealed and taken into possession vide memo Ex.PW41/C. Witness has further deposed that both the children were got medically examined and produced before the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 65 Child Welfare Committee through Juvenile Officer and they were sent to Mukti Ashram by the Committee. According to him on 21.04.2011, he received the secret information that accused Kalimulla was present at Inderlok Metro Station on which he along with ASI Devraj and secret informer reached at Inderlok where the secret informer pointed out towards the accused Kalimulla on which the accused Kalimulla was apprehended. Witness has further deposed that he made enquiries from him after which the accused Kalimulla was arrested vide memo Ex.PW41/D, his personal search was got conducted vide Ex.PW41/E and his disclosure stated was recorded vide Ex.PW41/F. According to the witness, in his disclosure statement the accused disclosed that he could get recovered the weapon of offence which were used to give beatings to the children i.e. sill paththar, stapler, danda, iron pipe and rope from his house. The witness has clarified that he had already issued notice to Md. Khalillua, Md. Shabbir, Md. Haseeb to join the investigation and on 21.04.2011, they all came to Police Station and he made enquiries from them. Witness has further deposed that thereafter, they were arrested vide memo Ex.PW41/G, PW41/I, PW41/K and their personal search were conducted vide memo Ex.PW41/L, Ex.PW41/J, Ex.PW41/H and they were interrogated and they made their disclosure statement vide memo Ex.PW41/M, Ex.PW41/N, Ex.PW41/O. Witness has further deposed that accused Shabbir, Khaliulla and Md. Haseeb were sent into judicial custody and he St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 66 obtained one day Police Custody remand of accused Kalimulla. He has testified that in pursuance to his disclosure statement the accused Kalimulla led them to house No. 280, JJ Colony, Wazirpur and got recovered an iron pipe used in the gas chulha which was sealed with the seal of AK and taken into possession vide memo Ex.PW41/P. (90) The witness has further proved that on 21.04.2011 he moved an application for Autopsy which is Ex.PW42/D, prepared brief facts which are Ex.PW42/E and filled Form 25.35 which is Ex.PW42/F and also recorded the statement of witnesses regarding the identification of the dead body which are Ex.PW23/A and Ex.PW24/A. He has testified that after postmortem dead body was handed over to its claimant vide memo Ex.PW10/B and after postmortem doctor handed over sealed parcel of exhibits of deceased, which was seized vide memo Ex.PW10/A. According to him, on 21.04.2011 accused Kalimulla was taken to the hospital for medical examination and doctor handed over the sealed parcel of the blood sample of accused Kalimulla which was seized vide Ex.PW42/E. According to the witness on 17.04.2011 he also prepared the site plan of the graveyard which is Ex.PW42/F. He has proved the attested copy of the DD No.27A which is Ex.PW42/G and having collected PCR form which is Ex.PW42/H. He has further deposed that he also got recorded the statement Rajjab Ali and Sayeed Ansari under Section 164 Cr.P.C. after their recovery and their bone age determination was also got St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 67 conducted. He has also deposed that after recovery of the articles/ weapon of offence they were got deposited with the MHC(M) on the same day and he collected the postmortem report from the doctor. Witness has further deposed that on 21.05.2011 he collected four sealed parcels from the MHC(M) for obtaining the subsequent opinion and moved his application which is Ex.PW42/I which was produced before the Autopsy Surgeon with the Postmortem Report. According to him the Autopsy Surgeon opened the sealed parcel and gave opinion along with sketch of the weapon of the offences and handed over all the four parcels after affixing a seal and case property was deposited with the MHC(M). He has further deposed that on 22.06.2011 the exhibits were sent to the FSL through Constable after obtaining it from the MHC(M).
(91) According to the Investigating Officer, on 30.06.2011 he called Draftsman Manohar Lal and he along with Manohar Lal visited the Graveyard and House of the accused at F280, JJ Colony, Wazirpur where Manohar Lal took rough notes and measurement of the scene of the crimes for preparation scaled site plan at his instance and after preparation of the scaled site plan he handed over same to him and on the same day, he sent the sealed parcel of the viscera to FSL. He has further deposed that on 17.04.2011 the custody of the child Rajjab Ali was handed over to the Child Welfare Committee and the receipt in this regard is Ex.PW42/J. According to him, on 20.04.2011 two children namely Saiyyad and Bokka @ elder brother of Muin were handed over to the CWC and they had given St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 68 receipt in this regard which is Ex.PW42/K. He has testified that during the course of investigations he recorded the statement of the witnesses under Section 161 Cr.P.C. The witness has tendered the FSL result Ex.PW42/L & Ex.PW42/M into evidence under Section 293 Cr.P.C. (92) He has correctly identified all the accused in the Court and also identified the case property i.e. one sill and batta which are collectively Ex.P1; one stapler which is Ex.P2; one rusted iron gas pipe which is Ex.P3; one wooden stick which is Ex.P4; one packet of rope bundle which is Ex.P5; one packet of red and yellow colours of packet of Bindi which is Ex.P6; one packet of Bindi packing wrapper of white and green colour on which the words in English 'Narayna Designer Bindi' are written which is Ex.P7; one kesari colour box containing 64 straps of Bindi which are collectively Ex.P8; one kesari colour box containing white coloured straps of Bindis which are collectively Ex.P9; one medium size diary on which 'multi colour note book' is written as the same as recovered from House No. F280, JJ Colony (the house of accused Kalimullah) which diary is Ex.P10 and the diary is having the name of Md. Kalimulla and also name of Sayeedadvance Rs.4,500/ kaam pe baitha 30.12.2010, RajjabRs.3,500/ kaam pe baitha 30.12.2010, Muin kaam pe baitha 06.01.2011 ko, Naseem advance Rs.2,000/ kaam pe baitha 06.08.2011, Asraf Rs.600/ kaam pe baitha 01.02.2011 ko paise paya Rs.100/, 14.02.2011 ko kaam pe ootha, 17.02.2011 ko kaam pe baitha, 03.03.,2011 ko kaam pe se ootha. Md. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 69 Kalimu Rs.6,250, Kaam pe baitha 23.03,2011 ko fazlu ko Rs.1,000/ rupya diya on 07.04.2011 & diary also reflect other transactions of the worker and the work. The witness has also correctly identified some pieces of Camphor which are collectively Ex.P11; one Lifebuoy soap along with the wrapper which are collectively Ex.P12; one blood stained shirt as the same as recovered from the House No. F280, JJ Colony (the house of accused Kalimullah) which shirt is Ex.P13; some pieces of Camphor as the same as recovered from the Room No. F280, JJ Colony (the house of accused Kalimullah) from northern directions which are collectively Ex.P14; two pieces of the clothes as that the dead body of the child was found wrapped in graveyard which are collectively Ex.P15; one small sized shirt as it was recovered from the house of accused Kalimulla which is Ex.P16 (the collar of the said shirt having no. 30 size).
(93) In his cross examination by Ld. Defence Counsel, the witness has deposed that he did not make any separate departure entry for this matter as he was already away from the police station and had made a departure entry for going to attend a meeting with the DCP (North West) but he has not made any arrival entry after return to the police station regarding the receipt of the information and visit to graveyard and has voluntarily stated that there was no requirement because a specific tehrir mentioning the fact had been sent to the police station by him of which a separate DD entry pursuant to which the FIR was registered. According to St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 70 the witness he has not filed the said departure entry alongwith the charge sheet. He has denied the suggestion that he did not file the departure entry because he had not gone to the graveyard. Witness has also deposed that he did not write the statement of Khalilulla or any other person when he reached the burial ground and had recorded the statement of Khalilullah after the registration of FIR. According to him before the registration of the FIR when he had made inquiries from Khalilulla about the dead body he did not record his statement. He has denied the suggestion that he did not record the statement of Khalilulla because he did not disclose to him either the name of the deceased or his other details. Witness has denied the suggestion that Khalilulla had never disclose that deceased was working with his brother Kalimulla and was doing the work of manufacturing of bindis. Witness has denied the suggestion that Khalilulla never told him that on 16.04.2011 at about 3.00PM when he went to his elder brother Kalimulla who was residing at F280, JJ Colony, Wazirpur, Delhi where he found the dead body of the said child Muin but his brother Kalimulla was not present there. He has also denied the suggestion that Khalilulla did not tell him that he called some persons for the purpose of burial and thereafter they brought the dead body of the child to the Graveyard at Kewal Park. He has admitted that he did not write any statement of Khalilulla prior to the registration of the FIR. Witness has denied the suggestion that he did not make any such statement and that is why he did not write any such statement or that Khalilulla merely told him that he had only come to the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 71 graveyard as an ordinary mourner or that he had no other knowledge about the death of the deceased. He has further denied the suggestion that child Sayeed Ansari told him that Kalimulla used to give beatings to the children for taking work or that the objects namely one wooden danda, stapler, sill batta have no relevance with this case. The witness has further denied the suggestion that child Sayeed told him that Kalimullah used to tie the hands and legs of Muin and used to keep sill on the chest and hips of Moim and also gave beating to him (Moim) with danda. Witness has denied the suggestion that he had illegally detained the brothers of Kalimulla in the police station in order to pressurize him and it is on account of this pressure that Kalimulla surrendered in the police station or that accused Kalimulla did not make any disclosure statement or that his signatures were forcibly obtained on the disclosure statement Ex.PW14/F. According to him the disclosure statement is in his handwriting. He has admitted that first page of disclosure statement does not bear the signatures of Kalimulla and has voluntarily stated that the signatures of Kalimulla is present on the backside of first page. Witness has further deposed that this disclosure statement was recorded at the police station and has admitted that disclosure statement of all the accused persons does not bear the signatures of any public person. According to the witness, he ha tried to join public person before recording of disclosure statement but none agreed. He is unable to tell the names and addresses of the persons who had refused to join the investigation. Witness has admitted that the names and addresses St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 72 of the said persons who had refused to join do not find reflected in the case diaries or in any other documents. He has denied the suggestion that he did not make any attempt to join public persons. The witness has further admitted that the disclosure statements of Mohd. Shabbir, Khalilulla and Mohd. Abdul Haseeb which are Ex.PW41/M, Ex.PW41/N and Ex.PW41/O respectively, were recorded in the police station. He has denied the suggestion that all these statements have been recorded by him of his own or that the signatures of the said accused were obtained by force or that the above accused did not make any disclosure statement or that it is for this reason that it does not bear any signatures of public persons. He has also denied the suggestion that Kalimulla in pursuance of disclosure statement did not lead them to 280F, JJ Colony Wazirpur or that he did not got recovered an Iron pipe used in the gas chulha. He has admitted that at the time of recovery of seizure of the Iron pipe of gas chulha, there was no public witness. Witness has denied the suggestion that there was no public witness because there was no recovery or seizure of iron pipe of gas chulha or that Rajjab Ali and Sayeed Ansari did not make any statement or that statements recorded U/s. 164 Cr. P. C. were on his tutoring. Witness has further denied the suggestion that no object like Silbatta, stapler etc. were recovered. Witness has admitted that the diary Ex.P10 was recovered alongwith other articles and a memo was prepared which is Ex.PW41/C. He has admitted that this memo is not signed by any public witness and and the child Sayeed Ansari on whose instance the diary and other articles St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 73 were recovered vide memo Ex.PW41/C. Witness has denied the suggestion that no such recovery was effect that is why no public witness has signed this memo. The witness has further admitted that the place of recovery is surrounded by residential houses and has voluntarily explained stated that nobody joined the proceedings. He has denied the suggestion that he did not make any effort to join public witness or that the said documents does not bear any signatures of the public witness because no such recovery had been effected. The witness has also denied the suggestion that diary Ex.P10 has been falsely implanted upon the accused to falsely implicate him in this case. According to the witness, the article mentioned in Ex.PW41/A were recovered voluntarily by them and this memo also does not bears signatures of any public person. Witness has denied the suggestion that no such recovery had been effected or that during the investigation he came to know that the accused are innocent even then he falsely implicate them in the present case.
STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:
(94) After completion of prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to them which they have denied. The accused Kalimullah has stated that he is innocent and has been falsely implicated in the present case. According to the accused he himself surrendered in the Police Station and did not make any disclosure statement to the police. He St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 74 has stated that he has nothing to do with the alleged incident and the case property, if any, has been planted upon him.
(95) The accused Khalilullah, Mohd. Shabbir and Abdul Haseeb have stated that they are innocent and have been falsely implicated in the present case. According to the accused they did not make any disclosure statement to the police and their signatures have been obtained forcibly.
They have stated that they have nothing to do with the alleged incident. The accused have preferred not to examine any witness in their defence. FINDINGS:
(96) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public witnesses:
1. Smt. Khanija This witness is the grandmother of one of the child Rajab
Khatoon (PW21) Ali recovered from the custody of the accused. She has
deposed on the following aspects:
1. That she is residing alongwith her family
comprising of two sons Sarfudin and Sarfela, one daughter.
2. That Sarfudin is having four children comprising of two daughters and two sons and one child was St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 75 recently born and Sarfela has only one daughter.
3. That the names of the sons of Sarfudin are Rajab who is eightnine years old and Awal who is two and a half years old.
4. That Shabir i.e. accused whom the witness has correctly identified in the Court is related to them being the Mamu of these children.
5. That Shabir told them that for securing the proper education to Rajab he would take him to Delhi where his own children were also studying.
6. That on this pretext Shabir took Rajab to Delhi and they permitted him since he was teaching his own children also.
7. That she used to talk to Rajab on telephone and he always told her that Shabir was keeping him properly.
8. That when Moim was killed she was called to Delhi by the police and at that time Rajab was kept at Ibrahim Pur and when she saw Rajjab there were injuries mark on his body.
9. That when she asked Rajab about the injures he told her that Kalimullah had given him a beating.
10. That when she asked Rajab how he reached to Kalimullah, Rajab told her that Kalimullah is residing near the house of Shabbir and just that he had killed Moim Kalimullah had given him beating and has killed him.
2. Rajab Ali (PW22) He is a Child Witness aged about nine years and his statement has been recorded in vernacular in Question Answer form without oath. He has stated as under:
1. That his family is comprising of his parents, grandmother and four brothers & sisters and he is the eldest son of his parents.
2. That he had come to Delhi from Bihar six days prior and previously also he had come to Delhi he stayed for two years.
3. That he had come to Delhi for studying purposes in summer vacations along with his brother Shabir St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 76 (accused) and was staying with Shabir in Delhi.
4. That he stayed with Kallimullah for a few days since he (Kallimullah) had beaten him after which Shabir got him treated and paid the expenses (Main Kam hi din raha. Usne Mujhe Maar Peet Kar Bhaga Diya. Shabir Ne Mera Ilaj Karaya. Uska Bahoot Kharcha Hua).
5. That he had come to Delhi twice and on first occasion Kallimullah did not give him beatings but on second occasion Kalimmulah gave beatings to him.
6. That he was doing the work of Bindi with Kallimullah (Main Kalim Ke Paas Bindi Ka Kaam Karne Ke Liye Aaya).
7. That Kallimullah used to pay Rs.10/ whereas his (Kallimullah's) brother used to pay him Rs.20/ despite that he was not working with him (he has correctly identified the accused Khalilullah in the Court).
8. That he was residing at the house of Khalilullah and on Sundays he used to go to the house of the brother of Khalilullah and on next day morning he used to go to the house of Kalimullah.
9. That he had worked with Kalimullah for ten days when he was tortured by Kalimullah and Shabir got him treated (Maini Uske yahan das din kaam kiya. Usne Mujhe Lohe Se Daga. Uske Baad Shabir Ne Mera Ilaj Karaya).
10. During his examination in the Court the child witness has pointed out towards his buttocks in the Court and explained that Kalimullah had inserted the iron pipe in his private parts pursuant to which he was unable to even walk and it was Shabir who used to take him to the toilet.
11. That Kalimullah had put red chilli powder in his private parts and it was Shabir who had got him treated.St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 77
12. That thereafter he was sent to the house of Shabir where his hairs from his head were got removed and Rs.5,000/ were given to the doctor for this treatment
13. That Kalimullah hit him with a stapler on his head due to which he received injuries on his head and his hairs had to be removed and it was Shabir who spent Rs.5,000/, gave him medicines and clothes
14. that when police had come then his grandmother had come from his house.
15. That from the Chowki he was taken to Boys Home and also took him to the hospital.
16. That he had gone to the Court where he had told everything to uncle (Ld. MM) and had put his thumb impression (statement of the child under section 164 Cr.P.C. is Ex.PX3 bearing his thumb impression at point A).
When asked if he knew Moim and whether it was residing along with him and Kalimullah, the child witness replied that Moim was killed after he had left and not in his presence.
3. Smt. Kanija She is the grandmother of deceased Moim who has Khatoon (PW23) identified his dead body in the hospital vide statement Ex.PW23/A and after postmortem dead body was handed over to them vide memo Ex.PW10/B.
4. Smt. Nazma She is the mother of deceased child Moim who has deposed Khatoon (PW24) as under:
1. That Shabir who was having his maternal uncle's residence in her native place, had brought her son Moim to Delhi for studies.
2. That along with Moim, her other son Nasim who is dumb (unable to speak) had also come to Delhi.
3. That she had spoken to her son Moim on phone who told her that he was well.
4. That she came to know from the villagers that her son Moim expired on which she came to Delhi along with her mother and motherinlaw in order to perform the last rites of her son.St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 78
5. That she came to know in Delhi that Kalimullah had beaten her son to death in the intervening night of 15/16.04.2011
6. That from the Railway Station she went to the police station from where she was brought to the mortuary of the hospital where she identified the dead body of her son Moim vide Ex.PW24/A and after postmortem dead body was handed over to them vide memo Ex.PW10/B. This witness has turned hostile on the aspect that when she spoke to Moim on the phone he had told her that he was doing the work of making bindies and that Kalimullah used to frequently thrash him .
5. Rahis Khan He is an independent witness who has deposed on the (PW25) following aspects:
1. That he is working as Consultant with Intazimia committee, Muslim Kadimi Kabristan, Kewal Park Road, Azadpur.
2. That on 16th of the month he does not recollect but it was almost one year ago, it was around 5:00 PM, he saw around 2022 persons from JJ Colony Wazirpur had come to Kabristan with the dead body of the child.
3. That he noticed that the said persons were in a hurry to perform the burial of the child on which he got suspicious and asked them the reason for the same on which they told him that the child had expired in the morning and because it was summer season therefore they were in a hurry to perform his burial.
4. That he was not satisfied and therefore he immediately made a PCR call and informed the police.
5. That after the police came and checked the body which he also saw, it was found that the body had large number of injury marks as if that the child had been beaten (mar pit ke nishan) and all these St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 79 2022 persons had run away from the spot as soon as he had made the PCR call.
6. Rahis Ahmed He is the landlord of the accused Kalimullah and has (PW26) deposed on the following aspects:
1. That at the time of the incident he was working with the Cable Operator as a line man and the ground floor of house No. F280 had been given on rent to Kallimullah R/o Madhubani, Bihar since fourfive months prior to the incident for Rs.1,500/ to 2,000/ per month.
2. That Kalimullah used to do the work of bindi making.
He has identified the accused Kahlilullah in the Court as the brother of accused Kalimullah. He has turned completely hostile on the allegations against the accused Kalimullah and also on the identity of the accused Shabir and accused Abdul Hasseb.
7. Mohd. Motiur He is an independent witness who used to sell scent (itar) Rehman (PW30) and muslim's cap (topi) near the Bari Masjid situated at JJ Colony, Delhi. He has deposed on the following lines:
1. That on 16.04.2011 at about 34 PM he went to Masjid to ease himself and two persons namely Shabir and Hashim followed him and informed him that one boy had expired and told him to arrange a vehicle.
2. That he inquired about the age of the boy and they told him that age of expired boy as 12 years after which he made a call to a driver for the vehicle after which one vehicle make TATA came there and was parked near the bus stop No.115.
3. That when he was sitting at the tea stall for tea he saw funeral / mayat going and he also participated in the same being a ritual.
4. That he met Chakan Ahmed and they both had taken tea at the tea shop.
5. That again he went to offer prayer at Azadpur and went to the burial ground and asked the Imam about the dead body but he found none over there.St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 80
6. That Imam after making inquiries from his committee persons informed the police control room by dialing 100 number.
He has also turned hostile on the allegations against the accused Kalimullah and Khalilullah and unable to identify them in the Court but he has correctly identified accused Abdul Haseeb and accused Shabir by pointing out towards them and also by name.
8. Chakkan Ahmed He is also an independent witness who is residing at E172, (PW31) JJ Colony, Delhi along with his family and is into business of sale of ice. He has deposed as under:
1. That on 16.04.2011 at about 3:304 PM he was taking tea at a shop when he noticed that a funeral procession passing through the area comprising of about 1520 persons and as a Muslim he joined the same on the asking of MotiurRehman.
2. That when they reached the cremation ground, he went to offer Namaj along with Motiur Rehman and Rahis who was a member of the Kabristan Committee.
3. That on his return he did not find anybody as all the persons who had brought the coffin to the cremation ground had left the body and gone away.
4. That he told Rahis to make a call to the police and when the police came, he told them that he had joined the funeral procession from half the way.
5. That the police opened the coffin and the body was of a small child aged about 1011 years whose name they later on came to know as Moim.
He has correctly identified the accused Khalliullah, Mohd. Shabeer and Abdul Haseeb as the persons who were accompanying the funeral procession but he is not aware of their names.
9. Balwan (PW32) This witness is a transporter by profession who has deposed on the following aspects:
1. That on 16.04.2011 Kallimullah had sent a request to his office for sending one vehicle LG at JJ Colony, Wazirpur for taking a coffin/ funeral St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 81 procession to burial ground at Azadpur which was hired for Rs.800/.
2. That after about 34 PM he had send two vehicles on the given address at Wazirpur JJ Colony out of which one vehicle was returned as sufficient persons to join the funeral were not there and only vehicle bearing No. HR60C0334 was retained.
3. That the said vehicle took the coffin and persons joining the funeral to Azadpur Burial ground and the driver of vehicle Kamlesh returned from the burial ground at about 6 PM.
10. Kamlesh Kumar He is a Driver by profession and is an employee of Balwan (PW33) (PW32). He has deposed as under:
1. That he employed with Balwan who is running a transport company under the name and style of Balwan Transport company at Plot No. 519, Shehjada Bagh, Inder Lok.
2. That on 16.04.2011 his owner Balwan asked him to take the vehicle i.e. Tempo/ TATA 407 bearing No. HR600334 to Wazirpur JJ colony for taking a funeral procession to burial ground at Azadpur.
3. That on his directions he took the vehicle to 115 Bus Stop, JJ colony, Wazipur at 4:30 PM and thereafter he took the coffin along with 1520 persons to Azadpur Burial ground where he left them.
4. That after taking the hire charges/ rent of the vehicle, he came back to the office of his owner.
5. That his owner had send another vehicle but the same was returned as sufficient persons to accompany the funeral were not there.
11. Sayeed Ansari He is a child witness aged about 11 years and was (PW40) examined by this Court in Vernacular in QuestionAnswer form without oath. He does not support the prosecution case in any manner and has been declared hostile by the prosecution. He has stated as under:
1. That they are three brothers and two sisters and his father is doing the work of selling bangles.St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 82
2. That he was not doing any work with anybody and he had come to Delhi to study.
3. That he was learning alif, be or te at the house of Shabir without paying any fees to him.
He has correctly identified the accused Shabir in the Court and stated that he had come from Bihar alone. When asked if he knew Kalimullah and Moim, he refused stating that he is not known either to Kalimullah or Moim.
Witnesses of medical record:
12. Dr. Neeraj This witness has proved the MLCs of the children Sayeed Chaudhary Ansari, Rajab Ali and Naseem and also the MLC of (PW13) accused Kalimullah which are Ex.PW13/A, Ex.PW13/B, Ex.PW13/C and ex.PW13/D respectively. According to the MLCs:
1. The child Sayeed Ansari was having old scar marks on the forehead.
2. The child Rajab Ali was having old scar marks over partieo occipital region, old scar marks over the forehead and chin, multiple scar marks over neck and chest, old scar mark on epigastrium region, old scar marks 45 in number on both the forearms, multiple scar marks on back region and buttock region.
3. The child Naseem was having five days old healing wound over forehead left side, old scar marks over forehead, old scar marks on the back of the body.
4. There was no fresh injury on the body of accused Kallimulla @ Kalim.
13. Dr. Deepak This witness has proved the MLCs of Sayeed Ansari, Rajab Chugh (PW14) Ali and Naseem with regard to suspected sexual assault which MLCs are Ex.PW14/A, Ex.PW14/B and Ex.PW14/C which rule out the possibility of sexual assault on the children.
He has also proved the MLC of the accused Kalimullah S/o Mohd. Jafir which is Ex.PW14/D according to which accused was unable to ejaculate semen at present. The semen could not be preserved.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 83
14. Dr. V.K. Jha This witness has proved the postmortem report of the (PW15) deceased child Moim S/o Samim aged about 1011 years which postmortem report is Ex.PW15/A. He has proved that on examination following injuries were present on the dead body:
1. Diffuse bruise on left thigh, right and left glutean region, on the back of chest in saccral region, reddish brown in color of size varying from 15 cm x 9 cm to 6 cm x 3cm.
2. Bruise on left leg in the middle 9cm x 4cm grennish in color.
3. Multiple bruises on left arm right arm, left forearm, right forearm, left dorsum of head, reddish brown in color, size varying from 9cm x 4 cm, to 6 cm x 2cm.
4. Multiple bruise on front of chest size varying from 4cm x 2cm to 2 cm x 1 cm. Some of them are reddish brown in color and some of them are grennish and blackish.
The witness has further proved that on internal examination of Head, there was subscalp hematoma on occipital and frontal region; on internal examination of chest there was bruising of intercostal muscles on 6,7 & 8 space on the right side and there was dislocation of ribs on costochondral junction on left side with intercostal bruising of 5,6,7 & 8 ribs of the left side; on internal examination of abdomen, there was laceration of right side of lever 9cm x 3cm x 1cm, abdominal cavity contain about 1.5 liter of liquid and clotted blood and there was tear laceration of about 1cm x 1cm on external anal sphincter at 2 O'clock position. According to him, after postmortem examination he opined the cause of death as combined effect of hemorrhagic shock and asphyxia consequent to repeated blunt forced impact diverted upon the body., Postmortem findings were consistent with repeated assault as evident from injuries of different durations, Liver laceration was ante mortem in nature St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 84 excluding all other injuries being caused by blow over abdomen. The witness has proved having opined that time since death was approximately five days and total number of inquest papers were 14 in number which were returned to the Investigating Officer along with the Postmortem Report and after postmortem examination clothes, blood gauze piece and blood and viscera were preserved in common salt sealed with sample seal of mortuary and Anal swab was preserved to rule out sodomy.
He has also proved the sketch diagram of the weapons of offence which are Ex.PW15/B and Ex.PW15/C which he had examined and gave his opinion which is Ex.PW15/D according to which injury No.1 and 2 injury as mentioned under the head internal examination of chest could have been caused by "sill and batta" and head injury could have been caused by "sill and batta", Injury No.3 and 4 could have been caused by stapler or gas iron pipe. He has also correctly identified the case property i.e. one sill and batta which are collectively Ex.P1; one stapler which is Ex.P2; one rusted iron gas pipe which is Ex.P3 and one wooden stick which is Ex.P4.
15. Dr. Rajeev Ranjan They are all the members of the Medical Board and have PW16 (HOD) proved having examined the patient Rajjab Ali, Sayeed Radiology, BSA Ansari and Naseem @ Boka on 26.4.2000 and on the Hospital; Dr. basis of physical, dental and radiological examination, Jitender Singh they gave their report in respect of the patients. All the PW17 HOD above witnesses have proved the report in respect of Rajjab (Ortho); Dr. Vijay Ali which is Ex.PW16/A according to which the estimated DhankarPW18 age of Rajjab Ali was between 7 to 9 years; report in (HOD) Forensics respect of Sayeed Ansari which is Ex.PW16/B according and Dr. Kunwar to which the estimated age of Sayeed Ansari S/o Saibul SanjayPW19 Ansari was between 10 to 12 years and report in respect of (Dental Surgeon) Naseem @ Boka S/o Shamim which is Ex.PW16/C according to which the estimated age of Naseem @ Boka S/o Shamim was more than 11 less than 16 years.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 85
16. Dr. Gopal Krishna This witness has proved the MLC of the accused (PW20) Kalimullah which is Ex.PW14/D according to which the accused was unable to ejaculate semen and hence the semen could not be preserved.
FSL witness:
17. Jitender Kumar This witness has proved the Chemical Analysis Report / PW29, SSO Viscera Report which is Ex.PW29/A according to which (Chemistry), FSL no common poison was detected in the exhibits. Rohini Police / official witnesses (proving investigations)
18. Ct. Kailash Kumar He is a formal witness who has proved that on 22.06.2011 (PW1) he collected the pullandas of this case and deposited the same at FSL Rohini and handed over the copy of RC and receipt of FSL to HC Sanjay MHC(M) CP.
19. HC Suman He is a formal witness being the Duty Officer who has Prashad (PW2) proved having lodged DD No.27A copy of which is Ex.PW2/A; having recorded the FIR of the present case copy of which is Ex.PW2/B and his endorsement on the rukka which is Ex.PW2/C.
20. Ct. Anil (PW3) He is again a formal witness who has proved that on 30.06.2011 he collected the viscera box of this case vide RC No. 37/21/11 and deposited the same in FSL Rohini vide receipt which he handed over to HC Sanjay MHC(M) CP.
21. Ct. Devender This witness has deposed on the following aspects:
(PW4) 1. That on 16.04.2011 he was on Emergency Duty along with SI Deepak from 8 AM to 8PM.
2. That when they were returning after attending a PCR call of theft by breaking car glass in front of H.No. 125 Bharat Nagar, the Duty Officer called SI Deepak Dahiya on his mobile phone and told that dead body of a boy has been brought to Azadpur Kabristan who has been murdered and murder has been committed in JJ Colony Wazirpur.
3. That on the above information he accompanied SI Deepak Dahiya to the place of occurrence where SHO Adarsh Nagar with staff was present and dead St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 86 body of a boy kept in the iron coffin was also there and on checking of the dead body numerous red injury marks over the body were found.
4. That meanwhile Insp. Ashok Kumar also reached at the spot who gave an application to SI Deepak Dahiya for deposition of dead body in BJRM hospital and Insp. Ashok Kumar took him to the place of occurrence at H. No. F280, JJ Colony Wazirpur where he got inspected and photographed the place of occurrence by the Crime Team.
5. That at 10:40PM Insp. Ashok Kumar gave him a rukka and sent him to police station to get the case registered on which he went to Police Station and gave the rukka to Duty Officer HC Suman who lodged an FIR in computer and gave him a computer copy of FIR and original rukka.
6. That he returned at the place of crime and gave a computer copy of FIR and original rukka to Insp.
Ashok Kumar.
22. Ct. Parvinder He is a formal witness being the Crime Team photographer Singh (PW5) who has proved having taken the photographs of the place of occurrence and dead body which photographs are Ex.PW5/A1 to Ex.PW5/A23 and negatives of the same are collectively Ex.PW5/B.
23. SI Satpal (PW6) He is a formal witness being the Crime Team Incharge who has proved having visited the place of occurrence and prepared the Crime Team Report which is Ex.PW6/A which he handed over to the Investigating Officer.
24. SI Manohar Lal He is a formal witness being the Draftsman who has (PW7) proved having visited both the places i.e. H.No. 280 Wazirpur JJ Colony and Kabristan Azadpur and having prepared the scaled site plans which are Ex.PW7/A and Ex.PW7/B.
25. Ct. Sher Singh He is again a formal witness who has proved the following (PW8) aspects:
1. That on 23.05.2011 he collected four pullandas sealed with the seal of AK containing Sil Batta, St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 87 pieces of wooden stick, stapler and iron gas pipe vide RC No. 16/21/11 which he took to Dr. V.K. Jha in mortuary BJRM Hospital.
2. That Dr. V.K. Jha checked the exhibits in all four pullandas and handed over to him his report and khaka of gas pipe, sil batta, two pieces of stick and stapler (total three pages) and all four pullandas sealed with the seal of mortuary BJRM.
3. That he handed all four pullandas to HC Sanjay MHC(M) CP and handed over the three pages report to Insp. Ashok Kumar.
26. Ct. Krishan He is a formal witness being the Special Messenger who (PW9) has proved that on 16.0442011 he delivered the Special Report at the residence of Joint Commissioner of Police, residence of Addl. DCPI, residence of Addl. DCPII, residence of ACP and at the residence of Ld. ACMM on government motorcycle bearing No. DL1SS2577.
27. Ct. Dev Narain He is also a formal witness who has proved that on (PW10) 21.04.2011 after the postmortem of deceased Moim in mortuary BJRM hospital doctor handed over to him viscera box, three pullandas duly sealed with the seal of FMT BJRM hospital Delhi and sample seal, which he handed over to Insp. Ashok Kumar who seized the same vide memo Ex.PW10/A. The witness has also proved that after postmortem the dead body was handed over to its relatives vide Ex.PW10/B.
28. HC Sanjay Kumar He is a formal witness being the MHCM who has proved (PW11) the entry No.240/11 in Register No.19 copy of which is Ex.PW11/A; copy of entry No.241/11 which is Ex.PW11/B; copy of entry No.243/11 which is Ex.
PW11/C; copy of entry No.245/11 which is Ex.PW11/D (running into six pages); entry no.16/21/11 in Register No. 21 copy of which is Ex.PW11/E; entry No. 34/21/11 copy of which is Ex.PW11/F; receipt issued by FSL copy of which is Ex.PW11/G; entry bearing no.37/21/11 in Register No.21 copy of which is Ex.PW11/H and receipt issued by FSL copy of which is Ex.PW11/I. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 88
29. SI Pancham He is a formal witness being the DD Writer who has Singh (PW12) proved that on 16.04.2011 at about 6:10 PM a PCR call was received in police station Adarsh Nagar which was lodged vide DD No.50B by him which is Ex.PW12/A.
30. ASI Durga This witness has deposed on the following aspects:
Prashad (PW27) 1. That on 16.04.2011 he was on Emergency Duty from 8.00AM to 8.00PM at Police Station Adarsh Nagar.
2. That at about 6.10PM on receipt of DD No.50B Ex.PW12/A regarding a dead body being brought to the Kabristan pursuant to murder he alongwith Ct. Chaman reached at Kewal Park, Kabristan where they met some of the Committee members and there they found the dead body of a small child in an iron Taboot.
3. That on opening the taboot they found that the dead body had a large number of injury marks and it appeared that there was a Maar Pitai with the said boy.
4. That they were informed by the committee officials that the dead body had been brought by Kalimullah R/o F Block JJ Colony Wazirpur, Delhi.
5. That further enquiry revealed that apart from Kalimullah, there was one Khalilullah amongst the persons who had brought the dead body to the burial ground.
6. That in the meanwhile SHO also came to the spot and inspected the dead body and informed the PCR about the position since the place of incident fell within the jurisdiction of Police station Bharat Nagar.
7. That after sometime SI Deepak came from Police Station Bharat Nagar with staff and Inspector Ashok Kumar also came after some time and he handed over the dead body to him.
31. Inspector This witness has proved the following aspects;
Virender Kadyan 1. That on 16.04.2011 he was posted at Police Station (PW28) Adarsh Nagar as SHO and on that day at about St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 89 6.006.30PM a call was received in the Police Station vide DD No.50B Ex.PW12/A that dead body of a child had brought at Kabristan, Kewal Park, Azadpur, Delhi who had been murdered.
2. That he reached at the Kabristan where ASI Durga Prasad and Ct. Chaman were present alongwith some committee members.
3. That he found the dead body of a child of aged about 1012 years was lying in an iron taboot.
4. That on checking the dead body he found a large number of red coloured injury marks on the dead body on various places and it appear to be a homicidal case where the child appeared to have died on account of severe beatings.
5. That on further inquiry he came to know that the dead body had been brought by some persons from the area of F Block, JJ Colony Wazirpur.
6. That since the said area fell under the jurisdiction of Police Station Bharat Nagar, he informed the Control Room about the position and also informed the Crime Team.
7. That after sometime SI Deepak Kumar and Inspector Ashok Kumar and other staff from Police Station Bharat Nagar came to the spot and in the meanwhile the officials of the Crime Team also reached there.
32. SI Deepak Dahiya This witness has deposed on the following aspects:
(PW34) 1. That on 16.04.2011 he was posted at Police Station Bharat Nagar and on that day he was on Emergency Duty from 8 AM to 8 PM along with Ct.
Devender who was also on emergency duty.
2. That at about 6:43 PM while he was attending another call within jurisdiction of Police Station Bharat Nagar regarding the breaking of a window of a car, he received a telephonic information from duty officer regarding DD No. 27A and asked him to reach Azadpur, Burial Ground, Kewal Park road where a dead body of a child had been brought with injury marks on his body.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 90
3. That on receipt of this information, he and Ct.
Devender went to burial ground at Azadpur where SHO Adarsh Nagar, Insp. Virender Kadyan was also present along with his staff.
4. That on inquiry SHO Insp. Virender Kadyan informed him that the dead body of a child of 1011 years had been brought by some persons from JJ colony Wazirpur having injury marks all over the body.
5. That he thereafter opened the coffin and checked the body himself and found injury marks all over the body on which he immediately informed the SHO Police Station Bharat Nagar.
6. That after the SHO came to the spot he took the dead body to BJRM Hospital mortuary where the Investigating Officer moved an application to the Incharge Mortuary, carbon copy of which is Ex.PW34/A to preserve the dead body.
7. That he left Ct. Dev Narain to guard the body after which he returned and till the body remained in his presence, it was not tampered.
33. SI Satish Kumar He is the Juvenile Welfare Officer and had joined the (PW35) investigations with Insp. Ashok Kumar. He has proved the following aspects:
1. That on 17.4.2011 at about 1:30 PM (after noon) he accompanied the Investigating Officer at F319, Wazirpur JJ colony, Delhi, as they came to know that one child namely Rajab Ali who was working with Kallimullah could be traced at F319.
2. That when they reached the second floor of the house, then they found a small child of about 8 years along with one lady.
3. That they interrogated the lady who told them that the child was his nephew/ bhanja and disclosed the name of the child as Rajab Ali.
4. That he made inquiries from the child who informed that he was resident of Madhubani Bihar and had been working with Kallimullah in St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 91 his bindi factory, situated at F280, ground floor, Wazirpur for the last many years and he further informed that Kallimullah used to give beatings to him.
5. That the child also showed them the old injury marks on his body after which the Investigating Officer recorded the statement of the child under Section 161 Cr.P.C.
6. That on the directions of the Investigating Officer he took the child for his medical examination at BJRM hospital and after his medical examination conducted, he produced the child before the CWC Kingsway camp after which the child was left at Mukti Ashram, Ibrahimpur.
7. That on 20.04.2011 he was called by the Investigating Officer at F280, JJ colony, Wazirpur where he went and found that two more children had been recovered.
8. That the children were interrogated and they found that one child was deaf and dumb and therefore they could make inquiries from one child only.
9. That thereafter both the children were taken to BJRM hospital for their medical examination and after their medical examination both the children were produced before the CWC after which on the directions of the CWC, the children were taken to children home for boys at Mukti Ashram, Ibrahimpur and admitted them.
10. That again on 25.04.2011 he accompanied the Investigating Officer and three children were taken to BSA hospital for getting their medical examination conducted to rule out sexual assault and their ossification test regarding age determination were also conducted.
34. ASI Dev Raj This witness has joined the investigations along with the (PW41) Investigating Officer and has proved the various investigation proceedings. He has proved the following St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 92 documents:
Ex.PW41/A Seizure memo of pullandas containing Camphor (Kapoor) lying on the bench in the room, Lifebuoy soap & its wrapper, blood stained shirt of a small child and five wrapper of the Camphor lying in the room of northern direction Ex.PW41/B Seizure memo of the pullandas containing one wooden danda broken into two pieces, one stapler make Kangaroo; one silbatta and one packing of rope bundle.
Ex.PW41/C Seizure memo of pullandas containing packet of red and yellow colours of packet of Bindi; one packet of Bindi packing wrapper of while and green colour; one kesari colour box containing 64 straps of Bindi; one kesari colour box containing white coloured straps of Bindis and one medium size diary.
Ex.PW41/D Arrest memo of accused Kalimullah
Ex.PW41/E Personal search memo of accused
Kalimullah
Ex.PW41/F Disclosure statement of accused
Kalimullah
Ex.PW41/G Arrest memo of accused Khalilullah
Ex.PW41/H Personal search memo of accused
Khalilullah
Ex.PW41/I Arrest memo of accused Shabir
Ex.PW41/J Personal search memo of Shabir
Ex.PW41/K Arrest memo of accused Haseeb
Ex.PW41/L Personal search memo of Haseeb
Ex.PW41/M Disclosure statement of Shabir
Ex.PW41/N Disclosure statement of Khalilullah
Ex.PW41/O Disclosure statement of Haseeb
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 93
Ex.PW41/P Seizure memo of gas iron pipe
35. Inspector Ashok He is the Investigating Officer of the present case and has
Kumar (PW42) proved the investigations conducted by him. Apart from the
documents already proved by the various witnesses, he has proved the following documents:
Ex.PW42/A Rukka
Ex.PW42/B Rough site plan of the house of Kalimullah
Ex.PW42/C Dead body possession memo
Ex.PW42/D Application for autopsy
Ex.PW42/E Brief facts
Ex.PW42/F Form 25.35
Ex.PW42/E1 Seizure memo of blood sample of accused Ex.PW42/F1 Seizure memo of site plan of graveyard Ex.PW42/G Attested copy of DD No.27A Ex.PW42/H PCR Form Ex.PW42/I Application for subsequent opinion Ex.PW42/J Receipt from CWC in respect of Rajjab Ali Ex.PW42/K Receipt from CWC in respect of Sayeed and Boka Ex.PW42/L FSL Result (biological) Ex.PW42/M FSL Result (Serological) (97) Coming now to the microscopic evaluation of the evidence against the accused.
Medical Evidence:
(98) Dr. Neeraj Chaudhary (PW13) has proved the medical examination report of the various children who were got recovered from the custody of the accused and who according to the prosecution had been St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 94 forcibly pushed into hazardous work and kept in confinement and tortured.
The details of medical record of these children are put in a tabulated form as under:
Sr. Name of MLC exhibit History Injuries Age as per No. the Child No. ossification report 1 Sayeed Ex.PW13/A Alleged Old scar marks were 10 to 12 Ansari history of present on the years aged 12 physical forehead and at the years assault beaten time of examination by employer there was no fresh as told by the injury patient himself 2 Rajab Ali Ex.PW13/B Old scar marks over 7 to 9 years aged 8 partieo occipital years region, Old scar marks over the forehead and chin, multiple scar marks over neck and chest, Old scar mark on epigastrium region, Old scar marks 45 in number on both the forearms, Multiple scar marks on back region and buttock region.
3 Elder Ex.PW13/C history of Five days old healing 11 to 16
brother of physical wound over forehead years
Moin assault left side,
(Marta old scar marks over
forehead,
Naseem)
old scar marks on the
aged about
back of the body
12 years
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 95
(99) Dr. Neeraj Chaudhary has also proved the MLC of the accused
Kalimullah which is Ex.PW13/D according to which there was no fresh injury. Further, Dr. Deepak Chugh (PW14) has proved that the above children were also medically examined for suspected sexual assault vide MLCs Ex.PW14/A, Ex.PW14/B & Ex.PW14/C according to which no sexual assault was done with the above children.
(100) Dr. Deepak Chugh (PW14) and Dr. Gopal Krishna (PW20) have proved the accused Kalimullah S/o Mohd. Jafir was also examined vide MLC Ex.PW14/D and as per the endorsement made by Dr. Yatender the accused was unable to ejaculate semen and hence semen could not be be preserved.
(101) PW16 Dr. Rajeev Ranjan (HOD) Radiology, BSA Hospital, PW17 Dr. Jitender Singh HOD (Ortho), PW18 Dr. Vijay Dhankar, (HOD) Forensics and PW19 Dr. Kunwar Sanjay (Dental Surgeon) are all the members of the Medical Board who have proved having the children Rajab Ali, Sayeed Ansari and Naseem @ Boka on 26.4.2000 and on the basis of physical, dental and radiological examination, they gave their report in respect of the patients which are Ex.PW16/A, Ex.PW16/B & Ex.PW16/C. They have proved that the estimated age of Rajab Ali was between 7 to 9 years; the estimated age of Sayeed Ansari was between 10 to 12 years and the estimated age of Naseem @ Boka was more than 11 less than 16 St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 96 years.
(102) Dr. V.K. Jha (PW15) has proved that on 21.04.2011 he had conducted the postmortem on the dead body of Moim S/o Samim vide postmortem report Ex.PW15/A. According to him, built of the body was moderate, rigormortis had passed of and postmortem staining was present at back, eyes were closed, Conjunctiva was congested and cornea was hazy, mouth was partially open and tongue was inside. He has proved that on examination following injuries were present on the dead body:
1. Diffuse bruise on left thigh, right and left glutean region, on the back of chest in saccral region, reddish brown in color of size varying from 15 cm x 9 cm to 6 cm x 3cm.
2. Bruise on left leg in the middle 9cm x 4cm grennish in color.
3. Multiple bruises on left arm right arm, left forearm, right forearm, left dorsum of head, reddish brown in color, size varying from 9cm x 4 cm, to 6 cm x 2cm.
4. Multiple bruise on front of chest size varying from 4cm x 2cm to 2 cm x 1 cm. Some of them are reddish brown in color and some of them are grennish and blackish.
(103) The witness has further proved that on internal examination of Head, there was subscalp hematoma on occipital and frontal region; on internal examination of chest there was bruising of intercostal muscles on 6,7 & 8 space on the right side and there was dislocation of ribs on St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 97 costochondral junction on left side with intercostal bruising of 5,6,7 & 8 ribs of the left side; on internal examination of abdomen, there was laceration of right side of lever 9cm x 3cm x 1cm, abdominal cavity contain about 1.5 liter of liquid and clotted blood and there was tear laceration of about 1cm x 1cm on external anal sphincter at 2 O'clock position. According to him, after postmortem examination he opined the cause of death as combined effect of hemorrhagic shock and asphyxia consequent to repeated blunt forced impact diverted upon the body., Postmortem findings were consistent with repeated assault as evident from injuries of different durations, Liver laceration was ante mortem in nature excluding all other injuries being caused by blow over abdomen. The witness has proved having opined that time since death was approximately five days and anal swab was preserved to rule out sodomy. Dr. V.K. Jha has further proved having examined the weapons of offence i.e. sill & batta; Stapler; wooden stick and gas iron pipe sketch diagram of which weapons of offence are Ex.PW15/B and Ex.PW15/C after which he gave his opinion which is Ex.PW15/D according to which injury No.1 and 2 injury as mentioned under the head internal examination of chest could have been caused by "sill and batta" and head injury could have been caused by "sill and batta", Injury No.3 and 4 could have been caused by stapler or gas iron pipe. He has also identified the said St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 98 articles which had been produced before him i.e. one sill and batta which are collectively Ex.P1; one stapler which is Ex.P2; one rusted iron gas pipe which is Ex.P3 and one wooden stick which is Ex.P4. (104) The final opinion regarding the cause of death was kept pending since the anal swabs were preserved and sent for examination to rule out the possibility of sodomy. However, in the Court after the FSL report Ex.PX7 was shown to the witness Dr. V.K. Jha, he opined that no semen has been detected on the anal swab thereby ruling out sodomy. (105) In his cross examination Dr. V.K. Jha has denied that he had not mentioned the durations of the injuries in the postmortem report but has voluntarily explained that the color of the bruises have already been mentioned which depicts the durations of the bruises. He has explained that the last injury at serial No.2 and some of the injury at serial No.4 were of within 24 hours before death.
(106) An objection has been raised by the Ld. Defence Counsel that Dr. V.K. Jha having withheld the final opinion regarding the cause of death, his opinion before the Court is not admissible in evidence and is liable to be rejected. In this regard I may observe that in so far as the Cause of Death and time of death is concerned, a definite opinion has also been given by the doctor that the death was a combined effect of hemorrhagic shock and asphyxia consequent to repeated blunt forced impact diverted upon the body and the subsequent opinion with regard to the same has only been kept pending to rule out any poisoning or other St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 99 cause of death which may emerge on account of forensic examination. In this regard the FSL report Ex.PW29/A is very clear according to which no common poison were detected in the exhibits. There is no reason to doubt the final opinion given by Dr. V.K. Jha which confirms the injuries present on the body of the deceased. I may also observe that the photographs of the dead body placed on record Ex.PW5/A2. Ex.PW4/A15 to Ex.PW5/A23 show the various injury marks all over his body. How much the child Moim would have suffered before his death? With his ribs cracked and the lungs punctured on account of the pressure exerted upon him and injuries on his private parts and internal injuries on the head, he could not survive the trauma all these injuries being on the vital organs. He was a small child and convict Kalimullah knew that these injuries were so imminently dangerous that in all possibilities they would have caused the death of the child and he inflicted these injuries without any excuse for incurring this risk.
(107) Further, as all the injuries mention on the bodies of the children i.e. deceased child Moim and also the rescued children Sayeed Ansari, Rajab Ali and Naseem showing old injury marks which are similar in nature, this indicates that the children were subjected to a similar kind of physical torture. From the MLC of the child Sayeed Ansari it stands established that he himself had given a history to the doctor of assault by employer. How is it that these children who were in the custody of the accused Kalimullah received injuries? The accused is the best person who St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 100 could have offered an explanation with regard to the same without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. None of the accused who are related to each other have been able to offer any explanation as to how these children who were in their custody received injuries.
(108) In view of the above, I hereby hold that the medical evidence on record is compatible to the prosecution case and Ocular Evidence which has come on record.
Forensic Evidence:
(109) The case of the prosecution is that the viscera of the deceased was preserved which was sent to FSL to rule out the possibility of poisoning of the deceased prior to his death. Sh. Jitender Kumar (PW29) Sr, Scientific Officer (Chemistry), FSL Rohini has proved and chemical examination report which is Ex.PW29/A according to which after chemical, TLC and GCHS examination no common poison was detected in the exhibits.St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 101
(110) The Biological and Serological reports have been admitted by the accused which are Ex.PW42/L and Ex.PW42/M showing that no semens could be detected on the anal swabs. Further, I may observe that blood has not been detected on the iron gas pipe, wooden stick / danda, stapler and sil & batta the alleged weapons of offence and there is a valid explanation forthcoming. All the injuries suffered by the deceased were internal and there was no active bleeding and it is this which explains the absence of blood.
The accused Kalimullah had arranged for a vehicle to take the body to Burial Ground, Azadpur:
(111) The case of the prosecution is that it is the accused Kalimullah who had arranged for the vehicle to carry the dead body of the child to the Burial Ground, Azadpur. In this regard the prosecution has examined Balwan (PW32) a Transporter by profession who is running the business of Transport under the name and style of Balwan Transport Company at Plot No. 519, Shehjada Bagh, Inder Lok, Delhi. According to Balwan (PW32) on 16.4.2011 on a request from Kalimullah he had sent one vehicle LG at JJ Colony Wazirpur for taking a coffin / funeral procession to burial ground at Azadpur which was hired for Rs.800/. He has further proved that after about 34 PM he had sent two vehicles on the given address at Wazirpur JJ Colony but one vehicle was returned as there were not sufficient to join the funeral and only vehicle bearing No. HR60C0334 was retained.
According to the witness, the said vehicle was taken by his driver Kamlesh St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 102 who returned from Burial Ground, Azadpur at about 6:00 PM. Kamlesh (PW33) has corroborated the testimony of his owner Balwan to the effect that on 16.4.2011 the directions of the owner of Balwan Transport Company he had taken the vehicle i.e. TATA 407 bearing no. HR60C0334 to 115 Bus Stop, JJ Colony, Wazirpur at 4:30 PM and took the coffin along with 1520 persons to Azadpur Burial Ground where he left them and after taking the hire charges he came back to the office of his owner. The aforesaid aspect has not been controverted by the accused since both the said witnesses have not been crossexamined by the Ld. Defence Counsel. I hereby hold that the prosecution has successfully proved that it was the accused Kalimullah who had had arranged for a vehicle to take the body to Burial Ground, Azadpur. Accused Kalimullah was doing the business of making Bindis:
(112) The case of the prosecution is that the accused Kalimullah was doing the business of making Bindis from premises No. F280, JJ Colony, Wazirpur, Delhi where he got employed small children. In this regard the prosecution has placed its reliance on the testimony of child witness Rajab Ali (PW22) who was working with the accused Kalimullah and the statement of the landlord Rahis Ahmed (PW26).
(113) Coming first to the child witness Rajab Ali (PW22), he has very specifically stated that he was doing the work of Bindi with the accused Kalimullah who used to pay him Rs.10/. Though the witness St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 103 Rahis Ahmed (PW26) has turned hostile on the allegations against the accused Kalimullah, yet he has proved that he had given his house bearing No. F280, Ground Floor JJ Colony, Wazirpur, Delhi on rent to the accused Kalimullah which the accused for doing the work of bindi making. The version given by both Rajab Ali and Rahis Ahmed finds due corroboration from the testimonies of the police witnesses who had gone to the house of the accused Kalimullah and found the raw material for preparing bindis which material was duly seized and produced in the Court. Even the accused Kalimullah in his statement under Section 313 Cr.P.C. admitted the aforesaid aspect of doing the work of manufacturing of Bindis on the given address and does not dispute the same.
(114) Therefore, I hereby hold that the prosecution has been able to prove that the accused Kalumullah was doing the business of bindi making from premises No. F280, Ground Floor, JJ colony, Wazirpur, Delhi.
Accused Shabir was getting children to Delhi on the pretext of good education after which the children were put in employment in factories manufacturing Bindi's:
(115) The case of the prosecution is that it is the accused Shabir who used to bring children from remote areas of Bihar to Delhi by using his influence as he is closely related to the families of the children on the pretext of providing them good education and living to them. However, St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 104 once the child was brought in Delhi, they were put in employment in the factories for manufacture of Bindi's. In this regard the testimonies of the grandmother of rescued child Rajab Ali namely Khanija Khatoon (PW21), mother of the deceased child Moim namely Nazma Khatoon (PW24) and the child Rajab Ali (PW22) become relevant. Both Khanija Khatoon and Nazma Khatoon have stated that it was the accused Shabir who had brought the children to Delhi on the pretext of providing better education to the child. Here, I may note that this pretext of good education for children has been introduced in the Court for the first time perhaps to escape legal consequences / to secure benefit to the accused Shabir who is related to them. This, I observe because the child witness Rajab Ali has in this statement specifically stated that he had come to Delhi twice. He has further explained that the first time when he had come to Delhi and was employed with Kalimullah he was treated properly but it was on second occasion when he had again come to Delhi that the accused Kalimullah did not treat him well. Rajab Ali has also explained that accused Kalimullah used to pay him Rs.10/ for Bindi making whereas Khalilullah used to pay Rs.20/ for the same.
(116) I may observe that the evidence on record confirms that the victim children belong to very extremely poor families residing in remote areas of Bihar and were being brought to Delhi for purposes of employing into the business of bindi making (child labour). None of the child has stated in the Court that he was being sent to school for education nor have St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 105 the accused lead any evidence to show that in Delhi the children had been put in some school so as to justify their presence in Delhi with them.
Rather on the contrary the Juvenile Welfare Officer has not only proved the recovery of the child Rajab Ali from the house of Shabir but also of the child Naseem (the deaf & dumb brother of deceased child Moim) and Saayeed Ansari from the house of one Gaffur (who interestingly not been cited as a witness nor arrayed as an accused). It is writ large that in the present case the issue involved is of Child Trafficking for purposes of labour and then employment in factories during which period these children faced confinement and torture. This being the background, the parameters with regard to appreciation of evidence has to be different. It stands established that the children belong to the remote areas of Bihar where there is no source of livelihood with the families living in abject poverty and facing illiteracy and hence the children had been sent to Delhi with Shabir who was related to them. This being the background the onus of now proving as to how these children reached to the accused Kalimullah and disproving the case put forward by the prosecution regarding rescue of these children from the custody of Shabir & Gaffur and regarding the presence of brutalization marks on their bodies, shifts upon the accused being a fact which was in the best knowledge of the accused (Section 106 of Indian Evidence Act) which onus they have not been able to successfully discharge.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 106 (117) Hence, under these circumstances, I hereby hold that it was the accused Shabir who had been given the custody of the children Rajab Ali, Moim, Naseem and Sayeed Ansari by their families and brought to Delhi and were ultimately rescued from the house of Shabir and Gaffur. It also stands established that at the time when the children were rescued all of them were having multiple bruises and old scar marks on their bodies (as also discussed herein above in medical evidence) which injuries / scar marks certainly tell the tale which this court will not overlook. This is one of those rare cases where the circumstances particularly the medical evidence showing injuries present on the bodies of the children coupled with the presence of the children in the custody of accused persons tell a story.
(118) It stands established that the accused were having the custody of the children and under the given circumstances if something had happened to the children it was for the accused to offer an explanation by leading evidence to explain the same, which they have not done and hence by the application of the principle of res ipsa loquitur I hereby hold that the case in hand relates to procurement and exploitation of children from poor families who have been subjected to Labour (Child Labour in the factories of Bindi manufacturing) by confining their movements and subjecting them to immense mental and physical torture in the hands of the accused Kalimullah.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 107 Destruction of evidence by performing the last rites of the deceased child Moim:
(119) The case of the prosecution that the deceased Moim was a small child who had been brought from a remote village of Bihar and put in hazardous work of making Bindis along with the accused Kalimullah who regularly used to torture him and inflicted injuries on him. After the unnatural death of the child, the accused Kalimullah in order to screen himself from legal punishment made an attempt to destroy the evidence by secretly burying the dead body of the child Moim in which his brother Kalilullah, Mohd. Shabbir and Abdul Haseeb assisted him. In this regard the prosecution has examined Mohd. MotiurRehman (PW30) a resident of the same area and one Chakkan Ahmed (PW31) who is also a resident of the same area. Here, I may observe that both MotiurRehman and Chakkan Ahmed have confirmed the presence of each other at mayyat / funeral procession.
(120) In so far as Mohd. MotiurRehman (PW30) is concerned, he is aged about 50 years and into the business of selling scent (iter) and Muslim's caps near Bari Masjid situated at JJ Colony, Delhi. He has deposed that on 16.04.2011 at about 34PM he went to Masjid to ease himself when two persons namely Shabir and Hashim informed him that one small boy had expired and told him to arrange for a vehicle. On this he asked for the age of the boy and they told him that age of expired boy was 12 years after which he made a call to a driver for the vehicle after which one vehicle make TATA came there and was parked near the bus stop No. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 108
115. The witness has deposed that while he was sitting at the tea stall for tea he saw funeral (mayat) of a dead body passing on which he also participated in the same being a ritual. Thereafter from the funeral ground he again went to offer prayer at Azadpur and on his return went to the Burial Ground where did not find anybody and hence asked the Imam about the dead body on which the Imam told him that he had his suspicion and after he made inquiries from the persons accompanying the body they all went away after leaving the body and the committee persons have informed the Police Control Room by dialing 100 number. He has turned hostile on the presence of the accused Khalilullah, Shabbir and Haseeb at the spot. He admits that his statement was recorded by the police but he denies having told the police that on 16.04.2011 at about 3:304:00 PM Khallillulah came to his house and informed him that one boy who was making Bindis at his house had died due to some illness. He has admitted that he met Chakkan Ahmed and the fact that they both had taken tea at the tea shop but has denied that at the Burial Ground Khalilullah, Shabir and Abdul Haseeb were showing haste in burying the dead body.
He has further admitted that the name of the deceased child was Moim who was about 10 years and was a relative of Kalimullah. (121) Further, Chakkan Ahmed who was present with Motiur Rehman has also been examined as PW31 and has confirmed the presence of the witness MotiurRehman and Rahis Ahmed along with St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 109 him at the cremation ground. He is aged about 55 years and is into the business of sale of ice. He has proved that on 16.4.2011 at about 3:304:00 PM when he was taking tea at a shop, he noticed that a funeral procession passing through the area comprising of about 1520 persons on which he joined the same. He has stated that when they reached the cremation ground, he went to offer Namaj along with Motiur Rehman and Rahis who was a member of the Kabristan Committee but on return they did not find any person who had brought the coffin to the cremation ground as they had gone away. On this he told Rahis to make a call to the police and when the police opened the coffin, they found the dead body of a small child aged about 1011 years whose name they later on came to know as Moin. He has identified the accused Khalliullah, Mohd. Shabeer and Abdul Haseeb by pointing out towards them as the persons who were accompanying the funeral procession but he is not aware of their names. In his crossexamination he has admitted that he had joined the funeral procession on the asking of his friend Motiur Rehman but has denied having told the police that Motiur Rehman had told him that the funeral procession was of a small child. He has stated that he did not tell the police that the accused were in a hurry to bury the body as a result of which he became suspicious and has explained that he became suspicious when the coffin was left at the spot unattended and every body had gone away from the burial ground. He has also explained that St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 110 there was no committee member due to which reason, he asked Rahis to make a PCR call.
(122) Rahis Khan has partly corroborated the testimonies of Moti urRehman (PW30) and Chakkan Ahmed (PW31) to the extent that at about 5:00 PM he saw 2022 persons from JJ Wazirpur Colony has come to Kabristan along with the dead body of the child and were in a hurry to perform the burial of the child on which he got suspicious. According to him, he asked them the the reasons for the same on which the said persons told him that the child had expired in the morning and because it was summer season therefore they were in a hurry to perform his burial. However, not being satisfied he immediately mare a PCR call and informed the police after which the police came and checked the body and it was found that the body had large number of injury marks as it that the child had been beaten (mar pit ke nishan). The testimony of Rahish Khan finds due corroboration from the PCR form Ex.PW42/H according to which Rahis Khan had informed the PCR that a mayyat of the boy had been brought in the Kabristan whose murder had been committed and request that police be sent. It was only thereafter at 18:21 (6:21 PM) that the police reached the spot and reported that the persons who had brought the Mayyat had gone away after leaving the dead body when the Kabristan Committee tried to verify the dead body. This also confirms the testimonies of MotiurRehman and Chakkan Ahmed. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 111 (123) It is evident from the above that MotiurRehman (PW30) and Chakkan Ahmed (PW31) have corroborated each other on material particulars to the effect that when they reached the Burial Ground they met Rahis Khan. MotiurRehman is a resident of the same area and has turned hostile on the identity of the accused persons but it is the witness Chakkan Ahmed (PW31) who has stood by his version and has identified the accused Khalliullah, Mohd. Shabeer and Abdul Haseeb in the Court. There is no history of enmity between Mohd. Chakkan with any of the accused and his testimony appears to be natural, probable and credible. There is no reason to disbelieve the same. Here, I may observe that the accused Shabir is related to the deceased child being his maternal uncle (Mama) in relation and it was he who was instrumental in getting these boys to Delhi (i.e. victim/ deceased Moim & his deaf and dumb brother Naseem, Rajab Ali and Sayeed Ansari etc.) as borne out from the testimony of the child witnesses and also from the testimonies of the family members of the deceased. The accused Khalilullah is the brother of the accused Kalimullah which relationship is not disputed and his close relationship with the accused Kalimullah explains the hurry to bury the body of the deceased child. There is no reason why they would have been falsely implicated in the present case.
(124) I may note that before shifting a dead body to the coffin there are certain religious rituals which are performed and one of them is to have a last sight of the dead body when the face of the deceased is shown to the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 112 near and dear ones. I am sure that the body of the child Moim must have been bathed and then covered with a shroud after performing these rituals. It is impossible that these persons specially Khalilullah, Mohd. Shabir and Abdul Haseeb who were performing the last rites of the deceased child Moim would not have seen the multiple bruises and injuries on the body of the child particularly when the child was bathed and wrapped in a shroud before being put into a coffin (compulsory ritual). This act of the accused Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb all of whom are closely related by blood or kinship and are residing together in the same area of not rushing the child to the hospital at the first instance for seeking confirmation of his death; not informing the police regarding the unnatural death of the child; hurriedly arranging and performing the last rites of the child and that too in the absence of his immediate family i.e. parents etc. who were in Bihar; leaving / abandoning the dead body of the child in the burial ground when members of the Kabristan Committee became suspicious of their conduct and made inquiries from them are all indicative of the fact that they had acted in consortium and had shared common intention to the extent of causing disappearance of the evidence of crime i.e. unnatural death of the child Moim with an intent to screen the main offender i.e. Kalimullah from legal punishment.
(125) It, therefore, stands established that all the accused i.e. Kalimullah, Khalilullah, Mohd. Shabeer and Abdul Haseeb had all accompanied the dead body of the child to Burial Ground without St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 113 informing the family of the deceased child Mohin @ Moim or the police of the unnatural death of the child, knowingly that an offence of murder has been committed by Kalimullah, in an attempt to cause the evidence of the commission of murder to disappear with intention of screen the offender Kalimullah from legal punishment.
Ocular evidence / allegations against the accused Kalimullah:
(126) Ocular evidence/ eye witness count is the best evidence in any case. The case of the prosecution is that the child Moim aged about 910 years had been procured from his native village at Bihar and was put in hazardous employment where his freedom of movement was restricted and he was compelled to work as bonded labour. During this period he was subjected to extreme brutally and assaulted on number of occasions in a manner which was likely to cause his death. According to the prosecution, taking advantage of the abject poverty of their families, backwardness and illiteracy, these small children were being brought to Delhi from their villages by the accused on the pretext of providing them with good education in Delhi but in Delhi they were subjected to extreme form of mental and physical cruelty, brutality and torture.
(127) In this regard the prosecution has relied upon the statements of the children recovered from the house of the accused Shabir and Gaffur who are all belonging to the same community (Muslims) and were in one form or the other related to the accused persons either by blood or by St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 114 kinship. When the statements of this child witnesses Rajab Ali and Sayeed Ansari were recorded in the Court, only Rajab Ali supported the earlier version which he had given during the inquiry / investigations but not Sayeed Ansari despite the fact that at the time of his recovery he had made a statement to the Ld. MM under Section 164 Cr.P.C. wherein he stated that the accused Kalimullah used to torture them and had killed Moim by giving beatings to him.
(128) The prosecution has also placed its reliance on the testimony of Smt. Khanija Khatoon (PW21) the grandmother of one of the rescued child Rajab Ali and also on the testimony of the child Rajab Ali (PW22).
Coming first to the testimony of Khanija Khatoon (PW21), the relevant portion of her testimony is as under: "...... I am residing alongwith my family comprising of two sons, one daughter. Both my sons are married.
The names of my sons are sarfudin and Sarfeala.
Sarfudin is having four children comprising of two daughters and two sons. One child has recently born. Sarfeala has only one daughter. The names of the sons of Sarfudin are Rajab and Aval. Rajab is eight to nine years old and the younger one is two and a half years old. Shabir the accused before this court(correctly identified) is related to us and is the Mamu of these children. He told us that for securing the proper education to Rajab he will take him to Delhi where his own children are also studying. On this pretext he took Rajab to Delhi and we permitted him since he was teaching his own children also. I used to talk to Rajab on telephone and he always told me that Shabir St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 115 was keeping him properly.
Court question How did you come to Delhi?
Ans. When Moim was killed I was called to Delhi by the police.
C.Q. Then what happened?
Ans. At that time Rajab was kept at Ibrahim pur and when I saw him he has injuries mark on his body.
C.Q. Did you ask Rajab how you received injuries?
Ans. He told me that Kalimullah had given him a beating.
C.Q. Did you ask Rajab how he reached to Kalimullah?
Ans. He told me that Kalimullah is residing near the house of Shabbir and just that he has killed Moim Kalimullah had given him beating and has killed him...."
(129) In her crossexamination Khanjia Khatoon has explained that Kalimullah is not related to her nor she had seen Kalimullah giving beatings to Rajab and has explained that they had sent Rajab Ali to Delhi along with Shabir for purposes of studies. It is evident from her testimony that Shabir had brought the child Rajab Ali to Delhi on the pretext of securing proper education for him but once in Delhi the child was put in hazardous work and subjected to extreme brutality and was rescued from the house of Shabir and sent to Mukti Ashram at Ibrahimpur and this aspect has been duly proved by Juvenile Welfare Officer SI Satish (PW35).
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 116 (130) SI Satish Kumar (PW35) has proved that on 17.04.2011 at about 1:30 PM (after noon) he accompanied the Investigating Officer at F319, Wazirpur JJ Colony, Delhi since they came to know that one child namely Rajab Ali who was working with Kallimullah could be traced there and when they reached the second floor of the house of Shabir, they rescued the child Rajab Ali who informed him that he had been working in the Bindi Factory with Kallimullah used to inflict injuries upon him, on which the child was produced before the Child Welfare Committee after which the child was left at Mukti Ashram, Ibrahimpur. He corroborates and confirms the testimony of Khanija Khatoon in this regard. In fact this SI Satish had rescued not only Rajab Ali but also the deaf & dumb brother of the deceased child Moim namely Naseem and also the child Sayeed Ansari who has turned hostile in the Court on the aspect of allegations of torture but admits his presence in Delhi with the accused (this is despite the fact that on his rescue there were large number of injury marks / scars found present all over his body which were similar to the injury marks found on the bodies of other children and he had himself told the doctors i.e. Dr. Ranjeet and Dr. Meet that these were on account of physical assault by the employer).
(131) Rajab Ali (PW22) is the most important star witness of the prosecution whose testimony is highly incriminating qua the accused Kalimullah. During the examination of this child witness Rajab Ali this St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 117 Court observed that there were a number of injury marks on his body and the child was not having any hair on his head. The child witness explained to the Court in details about the various atrocities which were committed upon him by the accused. The relevant portion of the statement of Rajab Ali which was recorded in vernacular in questionanswer form, is as under:
Q. Tumahara Naam Kya Hai?
Ans. Rajab.
Q. Tumahare Pita Ka Naam Kya Hai?
Ans. Sarfudin.
Q. School Jaate Ho?
Ans. Madarse Mai Alif Bey Parta Hun.
Q. Ghar Main Kaun Kaun Hai?
Ans. Maa, Baap, Dadi aur char bhai bahen hain.
Q. Sabse Bada Kaun Hai?
Ans. Main Sabse Bada Huin . Mujhse Choti Ek Behan Hai, Ek aur Behan Hai . Phir Bhai Hai.
Q. Aaj Tum Kahan Se Aaye Ho?
Ans. J.J. Colony, Delhi se.
Q. Bihar se Kab Aaye Ho?
Ans. 6 Din Pehle Aaya Huin.
Q. Pehle Bhi tum delhi aaye The?
Ans. Ji.
Q. Kitne Saal Pehle Dilli aaye the?
Ans. Do Saal Dilli Main Raha .
Q. Kiske Paas Dilli Main rehte The?
Ans. Main Parne Likhne Ke Liye shabir Ke saath Garmi Ki chutti Main Aaya Tha aur uske saath Dilli Mein Rehta Tha.
Q. Shabir tumara kaun lagta hai?
Ans. Shabir Mera Bhai Lagta Hain.
Q. Tum Kitne Din Kalimulla Ke Ghar Rahe St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 118 Ans. Main Kam hi din raha. Usne Mujhe Maar Peet Kar Bhaga Diya. Shabir Ne Mera Ilaj Karaya. Uska Bahoot Kharcha Hua.
Q Tum Kitni Baar Delhi Aaye?
Ans. Main Do Bar delhi aaya. Pehli Baar Kalimulla Ne Mujhe Nahi Mara . Doosari Baar Mara.
Q. Tum Kalimulla Ke Paas Kya Kaam Karte the?
Ans. Main Kalim Ke Paas Bindi Ka Kaam Karne Ke Liye Aaya.
Q. Kalimulla tumhey Paise Bhi deta Tha?
Ans. Das Rupey deta Tha. Uska Bhai Bees Rupey deta Tha . Uske Yahan Kaam Bhi Nahi Karta Tha.
Q. Kalimulla Ke Bhai Ka Naam Kya Hai?
Ans. Uska Naam Mujhe Yaad Nahi Hai.
At this stage witness identified Khaliullah as brother of the accused Kalimullah whom he identified in the court today.
Q. Tum Kiske Paas Rehte The?
Ans. Main Kalimullah ke ghar rehta tha. Sunday Ke din uske Bhai Ke Ghar Chala jata tha. Agle Din Subeh Subeh Kalimullah Ke ghar aata tha.
Q. Tumne Kalimulla Ke Din kitne din kaam kiya?
Ans. Maini Uske yahan das din kaam kiya. Usne Mujhe Lohe Se Daga. Uske Baad Shabir Ne Mera Ilaj Karaya.
Witness has pointed out towards his buttocks and says that he had inserted the iron pipe in his private part and thereafter child has stated that he was unable to even walk and it was Shabir who took him to toilet. Q. Tum Ko Wahan Lal Mirch Bhi Dali Thi?
Ans. Ji. Kalimullah Ne Dali Thi. Again he said that Shabir Ne Hi Ilaj Karaya Tha.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 119
Q Phir Kya Hua?
Ans. Uske Baad Mujhe Shabir Ke Ghar Bhej Diya
Jahan Mujhe Takla Karya(removed my hair). Paanch
Hajar Rupey Kharch Kiye.
Q. Tumhe Kaise Pata Chala Ki Paanch Hajar Rupey
Kharch Hua?
Ans. Doctor Ko Diya.
Q. Tumhe Takla Kyon Kiya?
Ans. Kalimullah Ne Sar Par steppler Mara Jisese Chot Aaye. Shabir Ne Paanch Hajar Kharch Kiye. Goliya Bhi di thi. Shabir Ne So Rupey Goliyo Ke Liye diye The. Kapde Bhi Diye The.
Q. Jab Police Aayee Thi to tumahare Ghar Se Kaun Aaya tha?
Ans. Dadi aaye thi.
Q. Jab police Aayee uske baad tumehe kahan le gaye?
Ans. Chowki Se Jahan Bachey Rakhte Hain wahan Le Gaye. Pulice Hospital Le Gaye the.
Q. Aur Kahan Gaye The?
Ans. Court Gaye The.
Q. Court Mein uncle ne is case ke bare main poocha
tha?
Ans. Ji. Maine uncle ko saari Baat Batai Thi.
Q. Tumne Angootha Lagaya Tha?
Ans. Ji.
Court observation: Statement of the child is already Ex. PX3 bearing his thumb impression at point A. Q. Kya Tum Moim Ko Jante Ho? Who Tumahare saath Rehta Tha Kalimullah Ke Paas?
Ans. Mere Jaane Ke Baad Moim ko mara. Mere
Samne Nahi Mara. Mere Jaane Ke Baad Mara.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 120
(132) The child witness Rajab Ali has explained that he had been
brought to Delhi on two occasions and that he was doing the work of manufacturing of Bindis. On the first occasion he also working with Kalimullah and states that he had never beaten him at that time and it was on the second occasion that he had given beatings. He has stated that after he was beaten by Kalimullah, it was Shabir who got him treated. He has explained that Kalimullah used to pay Rs.10/ to him and his brother (i.e. Khalilullah) used to pay Rs.20/ to him. He has identified the accused Khalilullah as the brother of the accused Kalimullah and has explained that he used to reside with Khalilullah. During the course of examination the child witness had pointed out towards his buttocks and informed this Court that the accused Kalimullah had inserted the iron pipe in his private parts and thereafter put red chilli on his wounds after which he was unable to walk and it was Shabir who used to take him to the toilet and had also got him medically treated. Here, I may note that these injury marks are also reflected in the MLC of the child as proved by Dr. Neeraj Chaudhary. This Court also noticed that the head of the child Rajab Ali had been tonsured and when inquired as to why there were no hairs on his head the child explained that Kalimullah had hit him with a stapler on his head on which he received head injury and it was Shabir who got him treated due to which reason his hairs had to be removed. This court also noticed the old injury marks on the head of the child which were St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 121 visible (the said injury also finds reflected in the MLC of the child). This child has confirmed that his statement under Section 164 Cr.P.C. was recorded by the Ld. MM which is Ex.PX3. It is evident that for the first time in the Court he has explained about the insertion of the iron pipe in his private parts and also the injuries on which head which according to him, was inflicted with the help of piddi/ wooden plank (Patra) but both these injuries find indicated in the MLC of child Ex.PW13/B and the head injury was also visible to the Court and hence there is no reason to disbelieve the version given by the child Rajab Ali or reject the same. (133) Ld. Defence Counsel has vehemently argued that the child Rajab has improved upon his earlier statement given to the Ld. MM and is a tutored witness due to which reason his statement cannot be relied. I have considered the submissions made and I may observe that Rajab Ali is a reliable witness. The injuries which have been inflicted upon his body not only find reflected in his MLC but also have been observed by this Court during his examination in the Court. It was only on the asking of the Court as to how he suffered the injuries that the child witness explained the nature of the injuries and how he had suffered the same. Merely because the child has not given the details of the same in his earlier statement would not be material since independent corroboration is forthcoming to the same from the medical evidence which injuries have also been observed by the Court. When asked if he was known to Moim the child has explained that after he had gone from the house of Kalimullah, Moim St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 122 was beaten but it was not in his presence. The grandmother of this child namely Smt. Khanija Khatoon (PW21) has confirmed that when she met Rajab in Ibrahimpur she had seen injury marks on his body and when she asked Rajab how did he receive injuries, he told her that Kalimullah had beaten him and he also told her that Kalimullah killed Moim and that he had given beatings to him (deceased Moim). It is writ large that at the time of the incident the child witness was in a state of trauma not only because of the injuries inflicted upon him but also on account of death of another child (Moim) who was with him and hence when his grandmother asked him about the injuries not only did he tell her about the injuries caused to him by Kalimullah but also told her what had happened to Moim i.e. Kalimullah had given beatings to Moim and killed him which conduct is only natural and probable.
(134) I may observe that it is not only child witness Rajab Ali but similar types of injuries have also been observed to be present on the body of the deceased Moim and so also on the bodies of the other children (i.e. Naseem and Sayeed Ansari) who had been rescued from the same place which injuries are of various durations (as reflected from the MLC). This cannot be a mere coincidence. Though the mother of the deceased namely Nazma Khatoon (PW24) has not completely supported the prosecution case yet she has proved that the deceased child Moim and his deaf and dumb brother (Naseem) had been brought to Delhi by Shabir who is related to them. I may note that on the one hand she has denied that the accused St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 123 Kalimullah is distantly related to them being the son of her Mausi yet in her crossexamination by the Ld. Addl. PP she admits that she knew the house of Kalimullah which was near to her house showing that she was trying to conceal the fact that she was previously known to the accused Kalimullah and his family. She has admitted that she came to know in Delhi that Kalimullah had beaten her son to death in the intervening night of 1516.4.2011 but states that she is not aware who Kalimullah is, which is rather strange since she had admitted being aware of the house of Kalimullah which is near her house at her native village. (135) When the entire incriminating evidence was put to the accused Kalimullah he simply gave vague replies and denied the same stating that he has been falsely implicated. He has denied having given any beatings to Moim or Rajab but no defence has been led by him to controvert the statement of child witness Rajab Ali and the evidence which has come on record against him. I may also observe that one of the rescued child namely Sayeed Ansari (PW40) has turned totally hostile and did not support the prosecution case. It was the child Sayeed Ansari who got recovered the weapons of offence i.e. iron gas pipe, sil & batta, wooden stick and stapler from the house of Kalimullah with which the accused Kalimullah used to give beatings to them, which aspect has been proved by the Juvenile Welfare Officer SI Satish (PW35), ASI Dev Raj (PW41) & Inspector Ashok Kumar (PW42) and the medical evidence confirms the use of these weapons i.e. sil & batta, stapler and gas iron pipe. This child St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 124 Sayeed Ansari has been apparently won over. His presence at Delhi is established not only from the documents showing his rescue and subsequent production before CWC and then being handed over to his family but has not been disputed by him. His MLC reflects the presence of a number of injury marks and also establishes the fact that he himself had told the doctor that the same were due to assault by the employer. It is also not disputed that he was recovered by the Police from the house of Shabir and when interrogated by the Juvenile Welfare Officer had informed that he was employed with Kalimullah in his Bindi factory which version has been duly proved by the Juvenile Welfare Officer. There is no reason to doubt the version given by the doctors which has been duly proved by the prosecution and also confirms to the version given by the child at the first instance to the Juvenile Welfare Officer. Here, I may observe that there is no reason for this Court to disbelieve the version given by the Juvenile Welfare Officer. The Hon'ble Supreme Court has in the case of Tahir Vs. State, (1996)3 SCC 338, observed that no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was also similarly observed in the case of Aner Raja Khimavs. The State of Saurashtra, AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others and hence it is not proper and permissible to doubt the evidence of police officers as Judicial approach St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 125 must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. Recently in the year 2010, the Hon'ble High Court of Delhi also took a similar view in the case of Aslam & Ors. (Mohd.) vs. State, 2010 III AD (Delhi) 133 and hence I hold that first the version given by the rescued children to the Juvenile Welfare Officer which has been duly proved by the said officer (SI Satish Kumar) cannot be suspected.
(136) Further, the Autopsy Surgeon has specifically proved that the injury No.1 and 2 injury as mentioned under the head internal examination of chest (bruising of intercostal muscles on 6,7 & 8 space on the right side and there was dislocation of ribs on costochondral junction on left side with intercostal bruising of 5,6,7 & 8 ribs of the left side) could have been caused by "sil and batta", the head injury (subscalp hematoma on occipital and frontal region) could have been caused by "sill and batta"
and the Injury No.3 (Multiple bruises on left arm right arm, left forearm, right forearm, left dorsum of head, reddish brown in color, size varying from 9cm x 4 cm, to 6 cm x 2cm) and Injury No.4 (Multiple bruise on front of chest size varying from 4cm x 2cm to 2 cm x 1 cm) could have been caused by stapler or gas iron pipe. These are the articles which were got recovered by the rescued child Sayeed Ansari and the police were were not aware of the same earlier. The circumstances of the case particularly the injuries on the body of the deceased and also on the bodies of other children speak for themselves. It is writ large that the most material St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 126 witnesses in the case are persons related to each other and to the accused by blood, kinship, community and religion. They are persons who hail from remote areas of Bihar and by reasons of abject poverty, illiteracy & lacking income generating opportunities sent their children to Delhi.
These victims are children who were under the custody of the accused persons and hence it is now for the accused to explain how these children who were in their custody and were rescued and recovered from their possession, had multiple injury marks on their bodies which they have not been able to explain.
(137) In view of my discussion as aforesaid and on the basis of the evidence i.e. ocular which finds due corroboration from the circumstantial and medical evidence the following facts stand established and proved:
➢ That the accused Kalimullah is doing the business of making Bindis from House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi belonging to Rahis Ahmed.
➢ That the accused Khalilullah is the real brother of the accused Kalimullah and is also into the business of manufacture of Bindi's. ➢ That the accused Shabir had brought children to Delhi from remote areas of Bihar on the pretext of securing good education for them in Delhi but once in Delhi he employed these children for making Bindis with Kalimullah where they were virtually held captive with their movements severely restricted and were subjected to extreme form of mental and physical brutality and torture. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 127 ➢ That the deceased child Moim S/o Shamim aged about 910 years and his brother Naseem (deaf & dumb child), Sayeed Ansari and Rajab Ali were also brought to Delhi by Shabir on the pretext of providing good education.
➢ That once in Delhi, these children which includes deceased child Moim were employed with accused Kalimullah who is involved in the business of manufacturing of bindis and was hence having the actual custody of these children.
➢ That the accused Kalimullah used to frequently thrash these children working with him and gave beatings to them with stapler, sil & batta, wooden stick and iron gas pipe which signs of brutality and torture on the bodies of these children are evident from the MLCs of children Sayeed Ansari, Rajab Ali and Marta Naseem. ➢ That the child Moim could not bear the physical torture inflicted upon him by the accused Kalimullah and expired on 16.4.2011 on account of the same.
➢ That after the child Moim expired the accused Kalimullah hurriedly arranged for a vehicle bearing No. HR60C0334 from Balwan Transport Company to take the body of the child to cremation ground in order to remove all traces of his crime in which his brother Khalilullah, Shabir and Abdul Haseeb assisted him. ➢ That the accused Kalimullah, Khalilullah, Shabir and Haseeb amongst others took the dead body to Burial Ground Azadpur in St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 128 which Mayat public persons namely MotiruRehman and Chakkan Ahmed also joined.
➢ That at Burial Ground Azadpur the accused were in a hurry to perform the burial of the child on which Rahis Khan a member of the Kabristan Committee and other persons got suspicious and a call was made to the PCR.
➢ That the PCR came and on checking the body it was found that the body was having multiple injury marks as if the child had been badly beaten.
➢ That by the time police arrived at the Kabristan the accused Khalilullah was present (along with MotiurRehman and Chakkan Ahmed) and he (Khalilullah) informed the police that the name of the child was Moim @ Chotu and was his relative but could not satisfactorily explain the injuries present on the body of the deceased;
➢ That Khalilullah further informed that the deceased was doing the work of manufacturing of Bindis with his elder brother Mohd. Kalimullah.
➢ That thereafter an FIR was got recorded and the dead body was sent to Mortuary and its postmortem was conducted.
➢ That during the course of investigations the police came to know that another child worker namely Rajab Ali was kept in the house of Shabir Ahmad after which the child Rajab Ali was recovered. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 129 ➢ That again on 20.04.2011 the Investigating Officer received information that other children were kept at Bhalaswa at the house of one Gaffur pursuant to which two children namely Sayeed Ansari and the other child who was deaf and dumb and was later revealed to be Naseem the elder brother of deceased Moim were recovered after which both the children were brought to JJ Colony to the house of Kalimullah.
➢ That the children got recovered the raw material for preparing bindis and the weapon of offence i.e. sill & batta, wooden stick and stapler with which the accused Kalimullah used to torture them. ➢ That on 21.04.2011 pursuant to a secret informer the accused Kalimullah was apprehended from Inderlok Metro Station and was arrested after which the accused Khalilullah, Shabbir and Haseeb were arrested on the same date i.e. 21.4.2011.
(138) In this background, I hereby hold that the prosecution has been able to prove that the accused Kalimullah got deployed the child Mohin @ Moin aged about 1011 years in his factory at House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi the accused Kalimullah and ostensibly procured a juvenile / child for the purpose of hazardous employment and having an actual charge or control over the said child, assaulted him in a manner like to cause such unnecessary mental or physical suffering.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 130 (139) It has also been proved that on 16.4.2011 the accused Kalimullah inflicted injuries upon the child Moim with the stapler, sil & batta, gas iron pipe and wooden stick, which the accused Kalimullah knew that were so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and this act he (Kalimullah) committed without any excuse for incurring the risk of causing death or such injuries, which cause death of the child Moim for which the accused Kalimullah is held guilty of the offence under Section 302 Indian Penal Code.
(140) It has further been proved by the prosecution that on 16.4.2011 in furtherance of their common intention all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb knowingly or having reasons to believe that an offence of murder has been committed by Kalimullah, caused the evidence of the commission of murder to disappear with intention of screening the offender from legal punishment they all took the dead body of the deceased Mohin @ Moin to Kabristaan for cremation, for which I hereby hold all the accused guilty of the offence under Section 201/34 Indian Penal Code.
(141) In so far as the allegations against the accused Kalimullah of having committed carnal intercourse with the child Moim @ Moin against the order of nature, the medical & forensic evidence on record rules out the possibility of sodomy due to which reason the accused Kalimullah is hereby acquitted of the charge under Section 377 Indian Penal Code. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 131 Whether the provisions of Section 23/26 of Juvenile Justice (Care and Protection) Act and the Section 16 of Bonded Labour System (Abolition) Act would apply or not:
(142) The case of the prosecution is that the accused Kalimullah compelled the child Moim aged about 1011 years to render a bonded labour. The charge sheet has been filed under the provisions of Section 16 of Bonded Labour System (Abolition) Act. I may observe that the Bonded Labour System means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor. However, there is nothing on record nor any evidence to show that any of the child so recovered from the custody of accused was employed as a bonded labour as per the definition provided under the Bonded Labour System (Abolition) Act.
(143) In so far as the provisions of Section 23 and 26 of Juvenile Justice (Care and Protection) Act are concerned, it stands established that the accused Shabir had procured the children from remote areas of Bihar on the pretext of good education and brought them to Delhi after which they had been exposed to the mental and physical sufferings in the hands of accused Kalimullah. It further stands established that both the accused Kalimullah and his brother Khailiullah are into the business of bindi making which involves the use of harmful chemical / gum for the purposes of sticking of bindi's which chemical cause addiction and its sustained inhalation over a period of time is extremely harmful for the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 132 human respiratory system and considered hazardous for children. It stands establishes that the accused Kalimullah who was having the actual charge and control over the juveniles / children willfully neglected them while confining them and deprived them of free movement, good food and due love, care and nurturing and also tortured them in a manner causing mental and physical suffering to the children (i.e. deceased Moim and Rajab Ali).
It further stands established that the accused Kalimullah ostensibly procured these children from Shabir for the purposes of hazardous employment i.e. bindi making and held them captive. (144) Therefore, I hereby hold the accused Kalimullah guilty of the offence under Section 23 read with Section 26 of Juvenile Justice (Care and Protection) Act. He is, however, acquitted of the charge under Section 16 of Bonded Labour Abolition Act.
(145) Further, in so far as the accused Khalilullah and Shabir are concerned, sufficient evidence has come on record in the form of statement of the victim/ child Rajab Ali and the medical record of the various rescued children (Sayeed Ansari, Rajab Ali and Naseem) and the deceased child Moim that not only was there a primafacie violation of the provisions of Section 23/26 of Juvenile Justice (Care and Protection) Act but also with regard to the violation of provisions of Child Labour (Prohibition and Regulation) Act. Information of this should have been sent by the Investigating Officer to the Labour Commissioner which has not been St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 133 done. No prosecution of these persons i.e. Shabir and Khalilullah and also Gaffur (from whose house the children Naseem and Rajab Ali were recovered) has either been recommended or initiated and I wonder why? FINAL CONCLUSIONS:
(146) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(147) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 134 in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. It stands established that the accused Kalimullah is doing the business of making Bindis from House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi belonging to Rahis Ahmed; that the accused Khalilullah is the real brother of the accused Kalimullah and is also into the business of manufacture of Bindi's; that the accused Shabir had brought children to Delhi from remote areas of Bihar on the pretext of securing good education for them in Delhi but once in Delhi he employed these children for making Bindis with Kalimullah where they were virtually held captive with their movements severely restricted and were subjected to extreme form of mental and physical brutality and torture.
(148) It also stands established that the deceased child Moim S/o Shamim aged about 910 years and his brother Naseem (deaf & dumb child), Sayeed Ansari and Rajab Ali were also brought to Delhi by Shabir on the pretext of providing good education; that once in Delhi, these children which includes deceased child Moim were employed with accused Kalimullah who is involved in the business of manufacturing of bindis and was hence having the actual custody of these children; that the accused Kalimullah used to frequently thrash these children working with him and gave beatings to them with stapler, sil & batta, wooden stick and iron gas pipe which signs of brutality and torture on the bodies of these children are evident from the MLCs of children Sayeed Ansari, Rajab Ali and Marta St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 135 Naseem.
(149) It further stands established that the child Moim could not bear the physical torture inflicted upon him by the accused Kalimullah and expired on 16.4.2011 on account of the same; that after the child Moim expired the accused Kalimullah hurriedly arranged for a vehicle bearing No. HR60C0334 from Balwan Transport Company to take the body of the child to cremation ground in order to remove all traces of his crime in which his brother Khalilullah, Shabir and Abdul Haseeb assisted him; that the accused Kalimullah, Khalilullah, Shabir and Haseeb amongst others took the dead body to Burial Ground Azadpur in which Mayat public persons namely MotiruRehman and Chakkan Ahmed also joined; that at Burial Ground Azadpur the accused were in a hurry to perform the burial of the child on which Rahis Khan a member of the Kabristan Committee and other persons got suspicious and a call was made to the PCR. (150) It also stands established that the PCR came and on checking the body it was found that the body was having multiple injury marks as if the child had been badly beaten; that by the time police arrived at the Kabristan the accused Khalilullah was present (along with MotiurRehman and Chakkan Ahmed) and he (Khalilullah) informed the police that the name of the child was Moim @ Chotu and was his relative but could not satisfactorily explain the injuries present on the body of the deceased; that Khalilullah further informed that the deceased was doing the work of manufacturing of Bindis with his elder brother Mohd. Kalimullah; that St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 136 thereafter an FIR was got recorded and the dead body was sent to Mortuary and its postmortem was conducted.
(151) It further stands established that during the course of investigations the police came to know that another child worker namely Rajab Ali was kept in the house of Shabir Ahmad after which the child Rajab Ali was recovered; that again on 20.04.2011 the Investigating Officer received information that other children were kept at Bhalaswa at the house of one Gaffur pursuant to which two children namely Sayeed Ansari and the other child who was deaf and dumb and was later revealed to be Naseem the elder brother of deceased Moim were recovered after which both the children were brought to JJ Colony to the house of Kalimullah; that the children got recovered the raw material for preparing bindis and the weapon of offence i.e. sill & batta, wooden stick and stapler with which the accused Kalimullah used to torture them; that on 21.04.2011 pursuant to a secret informer the accused Kalimullah was apprehended from Inderlok Metro Station and was arrested after which the accused Khalilullah, Shabbir and Haseeb were arrested on the same date i.e. 21.4.2011. (152) The medical evidence on record establishes the extent of brutality committed upon the deceased child aged about 1011 years. There was subscalp hematoma on occipital and frontal region; bruising of intercostal muscles on 6,7 & 8 space on the right side and there was dislocation of ribs on costochondral junction on left side with intercostal bruising of 5,6,7 & 8 ribs of the left side; laceration of right side of lever St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 137 9cm x 3cm x 1cm and tear laceration of about 1cm x 1cm on external anal sphincter at 2 O'clock position which injuries according to the Autopsy Surgeon could have been caused by the Sill & Batta, stapler or gas iron pipe recovered from the house of the accused Kalimullah. (153) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (154) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 138 (155) This being the background, I hereby hold that the prosecution has been able to establish and prove beyond reasonable doubt that the accused Kalimullah got deployed the child Mohin @ Moin aged about 1011 years in his factory at House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi the accused Kalimullah and ostensibly procured a juvenile / child for the purpose of hazardous employment and having an actual charge or control over the said child, assaulted him in a manner like to cause such unnecessary mental or physical suffering for which the accused Kalimullah is hereby held guilty of the offence under Section 23 r/w 26 of Juvenile Justice (Care & Protection of Children) Act, 2000. (156) It has also been proved that on 16.4.2011 the accused Kalimullah inflicted injuries upon the child Moim with the stapler, sil & batta, gas iron pipe and wooden stick, which the accused Kalimullah knew that were so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and this act he (Kalimullah) committed without any excuse for incurring the risk of causing death or such injuries, which cause death of the child Moim for which the accused Kalimullah is held guilty of the offence under Section 302 Indian Penal Code.
(157) It has further been proved by the prosecution that on 16.4.2011 in furtherance of their common intention all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb knowingly or having reasons to believe that an offence of murder of the child Moim had St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 139 been committed by Kalimullah, caused the evidence of the commission of murder to disappear with intention of screening the offender from legal punishment they all took the dead body of the deceased Moim to Kabristaan for cremation, for which all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb are hereby held guilty of the offence under Section 201/34 Indian Penal Code. (158) However, the prosecution is not successful in establishing and proving the allegations against the accused Kalimullah for the offence under Section 16 of Bonded Labour System (Abolition) Act, 1976 and under Section 377 Indian Penal Code for which he (Kalimullah) has been acquitted.
(159) Be listed for arguments on sentence on 21.5.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 9.5.2013 ASJII(NW)/ ROHINI
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 140
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE II (NORTHWEST): ROHINI COURTS: DELHI Session case No. 56/2011 Unique Case ID No.: 02404R0197362011 State Vs. (1) Kalimullah S/o Mohd. Zafeer R/o F280, JJ Colony, Wazirpur, Delhi (Convicted) (2) Khalilullah S/o Mohd. Zafeer R/o D8, JJ Colony, Wazirpur, Delhi (Convicted) (3) Mohd. Shabbir S/o Mohd. MotiurRehman R/o F319, JJ Colony, Wajirpur, Delhi (Convicted) (4) Abdul Haseeb S/o Abdul Hafeez R/o H172, JJ Colony, Wajirpur, Delhi (Convicted) FIR No.: 77/2011 Police Station: Bharat Nagar Under Sections: 302/201/377/34 IPC, 23/26 of JJ Act and 16 Bonded Labour Act St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 141 Date of Conviction: 9.5.2013 Arguments concluded on: 28.5.2013 Date of Sentence: 30.5.2013 APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
All the four convicts namely Kalimullah, Khalilullah, Shabir and Haseeb in Judicial Custody with Sh. B.S. Sharma Advocate.
ORDER ON SENTENCE:
The present case relates to trafficking of children from remote areas of Bihar to Delhi on the pretext of good education but in Delhi they are forcibly pushed into hazardous work and kept in confinement and tortured. One such child was the deceased Moim who could not bear the extreme brutality and torture inflicted upon him by the accused Kalimullah.
As per allegations, on or before 16.4.2011 at House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi the accused Kalimullah got deployed the child Moim aged about 1011 years in his factory of bindi making and ostensibly procured a juvenile / child for the purpose of employment in the factory of Bindi making and was having an actual charge or control over the said child, assaulted him in a manner like to St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 142 cause such unnecessary mental or physical suffering. It was also alleged that the accused Kalimullah compelled the child Moim aged about 1011 years to render a bonded labour and also that the accused Kalimullah committed carnal intercourse with the child Moim against the order of nature and committed the murder of the said child after causing injuries on his body with Sill & Batta, stapler, gas iron pipe and wooden stick.
It was alleged by the prosecution that on 16.4.2011 in furtherance of their common intention all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb knowingly or having reasons to believe that an offence of murder of the child Moim had been committed by Kalimullah, caused the evidence of the commission of this murder to disappear with intention of screening the offender from legal punishment they all took the dead body of the deceased Moim to Kabristaan for cremation.
On the basis of the testimonies of the various witnesses examined by the prosecution particularly the other victim children namely Rajab Ali and Sayeed Ansari (who were recovered from the house of accused Kalimullah & Shabir); the family members of the deceased child; the public witnesses who had joined the funeral procession and also on the basis of the forensic and medical evidence on record, this Court vide a detail Judgment dated 09.5.2013 has held the accused Kalimullah guilty of the offence under Sections 23 r/w 26 of Juvenile Justice (Care & Protection of Children) Act, 2000 and 302 Indian Penal Code. He has St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 143 however been acquitted of the charges under Section 16 of Bonded Labour System (Abolition) Act, 1976 and Section 377 Indian Penal Code. Further, all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb have been held guilty of the offence under Section 201/34 Indian Penal Code.
Vide judgment as aforesaid this Court has observed that it stands established that the accused Kalimullah was doing the business of making Bindi's from House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi belonging to Rahis Ahmed; that the accused Khalilullah is the real brother of the accused Kalimullah; that the accused Shabir had brought children to Delhi from remote areas of Bihar on the pretext of securing good education for them in Delhi but once in Delhi he employed these children for making Bindi's with Kalimullah where they were virtually held captive with their movements severely restricted and were subjected to extreme form of mental and physical brutality and torture. It also stood established that the deceased child Moim S/o Shamim aged about 910 years and his brother Naseem (deaf & dumb child), Sayeed Ansari and Rajab Ali were also brought to Delhi by Shabir on the pretext of providing good education; that once in Delhi, these children which includes deceased child Moim were employed with accused Kalimullah who is involved in the business of manufacturing of Bindi's and was hence having the actual custody of these children; that the accused Kalimullah used to frequently thrash these children working with him and gave beatings to them with St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 144 stapler, sil & batta, wooden stick and iron gas pipe which signs of brutality and torture on the bodies of these children are evident from the MLCs of children Sayeed Ansari, Rajab Ali and Marta Naseem.
It also stands established that the child Moim could not bear the physical torture inflicted upon him by the accused Kalimullah and expired on 16.4.2011 on account of the same; that after the child Moim expired the accused Kalimullah hurriedly arranged for a vehicle bearing No. HR60C0334 from Balwan Transport Company to take the body of the child to cremation ground in order to remove all traces of his crime in which his brother Khalilullah, Shabir and Abdul Haseeb assisted him; that the accused Kalimullah, Khalilullah, Shabir and Haseeb amongst others took the dead body to Burial Ground Azadpur in which Mayat public persons namely MotiruRehman and Chakkan Ahmed also joined; that at Burial Ground Azadpur the accused were in a hurry to perform the burial of the child on which Rahis Khan a member of the Kabristan Committee and other persons got suspicious and a call was made to the PCR. It has also been established that the PCR came and on checking the body it was found that the body was having multiple injury marks as if the child had been badly beaten; that by the time police arrived at the Kabristan the accused Khalilullah was present (along with MotiurRehman and Chakkan Ahmed) and he (Khalilullah) informed the police that the name of the child was Moim @ Chotu and was his relative but could not satisfactorily explain the injuries present on the body of the deceased; that Khalilullah further St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 145 informed that the deceased was doing the work of manufacturing of Bindi's with his elder brother Mohd. Kalimullah after which an FIR was got recorded and the dead body was sent to Mortuary and its postmortem was conducted. It has also been established that during the course of investigations the police came to know that another child worker namely Rajab Ali was kept in the house of Shabir Ahmad after which the child Rajab Ali was recovered; again on 20.04.2011 the Investigating Officer received information that other children were kept at Bhalaswa at the house of one Gaffur pursuant to which two children namely Sayeed Ansari and the other child who was deaf and dumb and was later revealed to be Naseem the elder brother of deceased Moim were recovered after which both the children were brought to JJ Colony to the house of Kalimullah;
that the children got recovered the raw material for preparing Bindi's and the weapon of offence i.e. sill & batta, wooden stick and stapler with which the accused Kalimullah used to torture them.
It also stands established that on 21.04.2011 pursuant to a secret informer the accused Kalimullah was apprehended from Inderlok Metro Station and was arrested after which the accused Khalilullah, Shabbir and Haseeb were arrested on the same date i.e. 21.4.2011.
This court has further observed that the medical evidence on record establishes the extent of brutality committed upon the deceased child aged about 1011 years. There was subscalp hematoma on occipital and frontal region; bruising of intercostal muscles on 6,7 & 8 space on the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 146 right side and there was dislocation of ribs on costochondral junction on left side with intercostal bruising of 5,6,7 & 8 ribs of the left side; laceration of right side of lever 9cm x 3cm x 1cm and tear laceration of about 1cm x 1cm on external anal sphincter at 2 O'clock position which injuries according to the Autopsy Surgeon could have been caused by the Sill & Batta, stapler or gas iron pipe recovered from the house of the accused Kalimullah.
In view of the above background, this court has concluded that the prosecution has been able to establish and prove beyond reasonable doubt that the accused Kalimullah got deployed the child Mohin @ Moin aged about 1011 years in his factory at House No. F280, Ground Floor, JJ Colony, Wazirpur, Delhi the accused Kalimullah and ostensibly procured a juvenile / child for the purpose of hazardous employment and having an actual charge or control over the said child, assaulted him in a manner like to cause such unnecessary mental or physical suffering for which the accused Kalimullah has been held guilty of the offence under Section 23 r/w 26 of Juvenile Justice (Care & Protection of Children) Act, 2000. It has also been proved by the prosecution that on 16.4.2011 the accused Kalimullah inflicted injuries upon the child Moim with the stapler, sil & batta, gas iron pipe and wooden stick which the accused Kalimullah knew that were so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and this act he (Kalimullah) committed without any excuse for incurring the risk of St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 147 causing death or such injuries, which cause death of the child Moim for which the accused Kalimullah is held guilty of the offence under Section 302 Indian Penal Code. It has further been proved by the prosecution that on 16.4.2011 in furtherance of their common intention all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb knowingly or having reasons to believe that an offence of murder of the child Moim had been committed by Kalimullah, caused the evidence of the commission of murder to disappear with intention of screening the offender from legal punishment they all took the dead body of the deceased Moim to Kabristaan for cremation, for which all the accused namely Kalimullah, Khalilullah, Mohd. Shabir and Abdul Haseeb have been held guilty of the offence under Section 201/34 Indian Penal Code. The prosecution was however not successful in establishing and proving the allegations against the accused Kalimullah for the offence under Section 16 of Bonded Labour System (Abolition) Act, 1976 and under Section 377 Indian Penal Code for which he (Kalimullah) has been acquitted.
Heard arguments on the point of sentence. The convict Kalimullah is stated to be aged about 32 years having a family comprising of wife and four sons. He is 6th class pass and is in the profession of making bindi.
The convict Khalilullah is stated to be aged about 30 years having a family comprising of wife, one daughter and two sons. He is St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 148 totally illiterate and is in the profession of making bindi.
The convict Mohd. Shabir is stated to be aged about 31 years having a family comprising of aged widow mother, two sisters, wife, one daughter and two sons. He is totally illiterate and is in the profession of making bindi.
The convict Abdul Haseeb is stated to be aged about 63 years having a family comprising of wife, three daughters and four sons. He is totally illiterate and is in the profession of making bindi.
Ld. Counsel appearing on behalf of the convicts has vehemently argued that in so far as the convict Kalimullah is concerned, the case does not fall in the category of Rarest of Rare rather it is a simple case of murder and hence it is prayed that a lesser sentence of Life may be awarded. Further, in so far as the convicts Khalilullah, Mohd. Shabir and Abdul Haseeb are concerned it is submitted that their case falls within the first proviso of Section 201 IPC. It is argued that the convicts are first time offenders and are not involved in any other case. He requests that a lenient view be taken against them.
The Ld. Additional Public Prosecutor on the other hand has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that the case of convict Kalimullah falls within the category of Rarest of Rare and keeping in view the facts and circumstances of the present case, there is no St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 149 alternative before this court but to impose death sentence upon the convict Kalimullah. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life. He further submits that if this Court is of the view that the present case does not fall within the category of Rarest of Rare, then it certain falls within the category of Rare Case. In so far as the convicts Khalilullah, Mohd. Shabir and Haseeb are concerned, he prayed that a strict punishment by awarded to them keeping in view the allegation involved.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 150 accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 151 The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
However, in the year 2009 while considering a Death Reference in Criminal Appeal no.528/2009, Death Reference Number 1/2009 the Hon'ble High Court of Delhi in its judgment dated 31/8/2009 observed that the Court has to see as to whether the case falls in the category of the Rarest of Rare i.e an extreme form of being extremely rare within the larger category of rare or not. The Hon'ble Court observed that it has to be established that the case falls in the category of the rarest of the rare and hence while making a reference to their earlier decision as rendered in death reference number 1/2008, titled State Vs. Raj Kumar Khandelwal, Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Ms. Justice Indermeet Kaur of the Delhi High Court and by further referring St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 152 to the summary of various judicial pronouncements as made by them while considering the mitigating factors and the aggravating factors summarized as under: "........ A bird's eye view of various judicial decisions reveal that Courts have considered the under noted circumstances, as mitigating: lack of any prior criminal record as held in the decision reported as 2006 EWHC 1555 (OQ) In Re. Butters'; the age of the offender being too young or too old as held in the decision reported as AIR 1974 SC 799 Ediga Anamma Vs. State of Andhra Pradesh; the character of the offender i.e how the offender is perceived in the society by men of social standing; the probability of the offenders' rehabilitation, reformation and readaptation in the society; whether the offence was committed under a belief by the assailant that he was morally justified in doing so; or that the accused acted under the duress or domination of another person as held in the decision reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab; commission of the offence at the spur of the moment without any premeditation; or the offender being provoked (for instance by prolonged stress) in a way not amounting to the defence of provocation, as held in the decisions reported as 2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821 A. Devendran Vs. State of Tamil Nadu; a belief by the offender that the murder was an act of mercy as held in the decision reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State (Delhi Administration); a guilty plea by the offender or his voluntarily surrendering before the authorities and his being genuinely remorseful as held in the decisions reported as (2008) EWHC 92 (QB) In St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 153 Re. Rock and (2006) EWHC 1555 (QB) In Re.
Butters'; that the offender acted to any extent in self defence; that his intention was merely to cause serious bodily harm rather than to kill; that the victim provoked or in any way contributed to the crime, as held in the decision reported as AIR 1999 SC 1699 Kumudi Lal Vs. State of U.P. Lastly, in the decisions reported as AIR 2007 SC 2531 Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka and 2007 Cri. L.J. 1806 Shivu & Anr. Vs. High Court of Karnataka & Anr., it was held that in cases of conviction being based on circumstantial evidence a lenient view should be taken on the issue of sentence. Aggravating factors/circumstances have been opined to be; the accused having undergone previous convictions and his proving to be a future danger/threat or menace to the society considering aspects like criminal tendencies, vagabond lifestyle, drug abuse etc. as per the decision reported as (2008) EWHC 719 (QB) In Re. Miller; offender being in a dominating position to the victim or in a position of trust and has abused the trust; anti social or socially abhorrent nature of the crime i.e where the offence arouses social wrath and shakes the confidence of the people in any social institution; a crime committed for a motive which evinces total depravity and meanness for instance, a financial gain; where the magnitude of the crime is large i.e there are more than one victim; where the crime is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse extreme indignation of the community as held in the decision reported as 1983 (3) SCC 470 Machhi Singh Vs. State of Punjab;
significant degree of planning or premeditation and St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 154 lack of remorse as held in the decision reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of Assam; the victim being vulnerable due to age or physical infirmity as held in the decision reported as 2008 (110) Bom. LR. 373 State of Maharashtra Vs. Haresh Mohandass Rajput; mental or physical suffering inflicted on the victim before the death; victim being a public service provider or performing a public duty at the time when the crime was committed, as held in the decision reported as (1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the offender attacking sovereign democratic institutions as held in the decision reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru Vs. State".....". Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal in Crl. Appeal No. 528/09 decided on 31.8.2009 examined another important facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249 wherein the Hon'ble Supreme Court of India had observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of law. That ought not to be done, save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.
The Hon'ble Mr. Justice Pradeep Nandrajog further considered the various alternatives available to him in the light of Section 433 Cr.P.C. St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 155 and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the Ordinary Category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a Higher Category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip said benefit being extended by directing that the accused shall undergo an actual sentence for a higher period or even for the remainder of his life. It was observed that such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 156 considered for being grant of remission till he undergoes an actual sentence of 20 years. It is, therefore, evident that the courts are required to draw a virtual balance sheet listing the mitigating and the aggravating circumstances against each other and then forming an opinion as to where does the fulcrum rest.
Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factor as pointed out by the Ld. Counsel is that the convict Kalimullah is a young boy and has no previous criminal involvement. The aggravating factors are that he had committed the murder of a child aged 1011 years who had been brought to Delhi from their villages by taking advantage of the abject poverty of their families, backwardness and illiteracy by offering tall dreams of good life and education but in Delhi they were subjected to extreme form of mental and physical cruelty, brutality and torture.
Every child is a gift of God - a gift which must be nurtured with care and affection, with in the family and society. But unfortunately in our country due to socioeconomic and cultural problems, the code of child centeredness has been replaced by neglect, abuse and deprivation, particularly in the poverty afflicted illiterate sections of the society. Child labour is a complex problem that is basically rooted in poverty. In the world conference held in Stockholm it was pointed out that it is very difficult to workout any data pertaining to child abuse under the existing circumstances and according to a survey of the child Labour undertaken on St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 157 orders of the Hon'ble Supreme Court, the total number of such labours in India is 5,00,000 (Five Lacs) as on record which does not appear authentic. However, another survey shows that the position of India in terms of child labour is not an appreciable one. With a credible estimates ranging from 60 to 115 million, India has the largest number of working children in the world.
I may observe that every child has a right to a joyful childhood and of growing up in a safe and nurturing environment with protection of family and society. Child Labour is a serious problem which is intimately related to extreme poverty and illiteracy. In the present case after the death of the child Moim other children were also rescued and was found that they all came from remote villages of Bihar and belonged to extremely poor families of total havenots who do not have any other means to raise their income except the human asset (i.e. child) to invest a bid to supplement it. These children contributed to the pool income of the family to fulfill their needs and hence despite the fact that the plight of these children which had been extremely miserable on account of sheer exploitation by their own kith & kins and their employment at an age when they should be enjoying their childhood, there is very little that could be done. Unfortunately in the present case on account of the close association and familial / community ties between the families of the convicts and the victim children, the evidence from the side of the families was lacking reflecting a total social and familial apathy towards the plight of these children. Be that as the case St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 158 may be, in so far as this Court is concerned, having come to know about the manner in which these children were trafficked and brought to Delhi and put in employment after keeping them in confinement during which period they have been subjected to most brutal treatment, no leniency can be shown to the violator. The telltale injury marks on the bodies of these children confirm and establish the kind of torture they have endured. How much the child Moim would have suffered before his death? With his ribs cracked and the lungs punctured on account of the pressure exerted upon him and injuries on his private parts and internal injuries on the head, he could not survive the trauma. He was a small child and convict Kalimullah knew that these injuries were so imminently dangerous that in all possibilities they would have caused the death of the child and he inflicted these injuries without any excuse for incurring this risk. Child Rajab Ali was a little more fortunate than the deceased child Moim for it was Shabir who came to his rescue and got provided medical treatment to him when convict Kalimullah had brutalized him by inserting an iron rod in his private parts and thereafter put red chilli on his wounds as a result of which the child was totally bed ridden and was unable to walk for a number of days. The injury marks on the head of Rajab Ali as a result of which he had to be tonsured for purposes of treatment which were even visible to the Court when the child appeared for his statement, indicate the extent to which Kalimullah could go. In this background, convict Kalimullah deserves no leniency. Not only is he St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 159 responsible for the death of the child Moim but is also guilty of the torture which he had been inflicting on the other children including the child Rajab Ali. He is the one, who is responsible for snatching away the life and childhood out of these children. His case cannot be put on the same pedestal as other ordinary murder case but at the same time it also does not fall within the category of Rarest of Rare Case. In my considered view his case falls within the category of Rare Case calling for consideration of alternative options. I therefore, award the following sentences to the convict Kalimullah:
1. For the offence under Sections 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life with the directions that he shall not be considered for grant of remission till he undergoes an actual sentence of Twenty (20) Years and fine for a sum of Rs.1,00,000/ (Rs. One Lac) In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Six Months. The entire fine of Rs.1,00,000/ (Rs. One Lac) if recovered, shall be given to the family of the deceased child Moim as compensation under Section 357 Cr.P.C.
2. For the offence under Sections 201 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three (3) Years and fine to the tune of Rs.2,000/. In default St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 160 of payment of fine the convict shall further undergo Simple Imprisonment for a period of One week.
3. For the offence under Section 23 (providing for maximum punishment of six months or fine or with both) read with 26 of Juvenile Justice (Care & Protection of Children) Act, 2000 (providing for maximum punishment of three years and fine) the convict is sentenced to Rigorous Imprisonment for a period of Three (3) Years and fine for a sum of Rs.5,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days.
All the sentences shall run concurrently.
Further, in so far as the convicts Khalilullah, Mohd. Shabir and Abdul Haseeb are concerned, they have only been held guilty under Section 201/34 Indian Penal Code. The convicts are first time offender and are not involved in any other case and hence a lenient view is taken against them. Therefore, the convicts Khalilullah, Mohd. Shabir and Abdul Haseeb are sentenced to Rigorous Imprisonment for a period of Three (3) Years (each) and fine to the tune of Rs.2,000/ (each) for the offence under Section 201 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of One Week (each).
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Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
Before ending, I may observe that in so far as the accused Khalilullah and Shabir are concerned, sufficient evidence has come on record in the form of statement of the victim/ child Rajab Ali and the medical record of the various rescued children (Sayeed Ansari, Rajab Ali and Naseem) and the deceased child Moim that not only was there a primafacie violation of the provisions of Section 23/26 of Juvenile Justice (Care and Protection) Act but also with regard to the violation of provisions of Child Labour (Prohibition and Regulation) Act. Information of this should have been sent by the Investigating Officer to the Labour Commissioner which has not been done. No prosecution of these persons i.e. Shabir and Khalilullah and also Gaffur (from whose house the children Naseem and Rajab Ali were recovered) has either been recommended or initiated and I wonder why?
In this view of the matter it would be desirable that the Deputy Commissioner of Police (NorthWest) get the further investigations conducted preferably through a senior officer duly sensitized into issues relating to Child Trafficking / Child Labour on the aspects highlighted herein above in accordance with law particularly on the issues of trafficking/ procurement of these children for purposes of Child Labour St. Vs. Kalimullah Etc., FIR No. 77/2011, PS Bharat Nagar Page No. 162 on payment of meager amount by curtailing their freedom of movement at workplace with lacking of basic facilities like toilets. Further, information is also required to be sent to the Labour Commissioner for initiating appropriate proceedings in accordance with law and hence I hereby direct that a copy of the Judgment and Order be placed before the Ld. CMM (NorthWest) for passing appropriate directions in this regard in accordance with law. One copy be sent to the Commissioner of Police, Delhi for necessary compliance in accordance with law.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with their jail warrant.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 30.05.2013 ASJ (NW)II: ROHINI
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