Delhi District Court
State vs . Uday Kumar Yadav on 17 November, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 27/2012
Unique Case ID: 02404R0075942012
State Vs. Uday Kumar Yadav
S/o Sita Ram,
R/o Vill.: Hussepura, Panchrukhia
Police Station : Shebganj
District : Muzzaffarpur, Bihar.
(Convicted)
FIR No. : 477/2011
Police Station : Narela
Under Section : 363/376 (2) (f) / 380 Indian Penal
Code.
Date of committal to Sessions Court : 02.04.2012
Date on which orders were reserved : 18.10.2012
Date on which judgment pronounced : 07.11.2012
JUDGMENT
Brief Facts:
(1) As per the allegations, in the intervening night of 24/25.09.2011 between 10:00 PM to 4:00 AM, at Jhuggi in front of G1149, DSIDC Narela, Delhi, the accused Uday Kumar Yadav kidnapped the child / prosecutrix 'M' aged one year, from the lawful State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 1 guardianship of her father and thereafter he (Uday Kumar Yadav) took the child to the nearby Park situated behind the Jhuggi and committed rape upon the child / prosecutrix 'M' aged one year. It is also alleged that the accused Uday Kumar Yadav also committed theft of the mobile phone make GFive bearing No. 9981705439 belonging to the complainant Kamlesh Kumar Yadav.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 25.9.2011 on receipt of DD No. 11B, SI Rajbir Singh along with Ct. Baljeet reached at the spot i.e. G1149, DSIDX, Bhorgarh, Narela, Delhi, and came to know that the PCR officials had already taken a one year old girl child to the SRHC Hospital. The police did not find any eye witness at the spot and hence they reached the SRHC Hospital where the child / prosecutrix 'M', aged one year, was found admitted and thereafter the child was referred to BSA Hospital for further medical examination. The mother and father of the prosecutrix were present in the hospital and SI Rajbir Singh recorded the statement of Kamlesh Kumar, the father of the child. The complainant Kamlesh Kumar told the police that on 24.9.2011 at about he along with his wife and daughter child 'M' were sleeping inside his jhuggi.
According to him, his daughter child 'M' was sleeping between him and his wife and in the morning at about 4:00 AM, when he woke up, State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 2 he did not find his daughter on which he made inquiries from his wife about his daughter 'M' was and his wife told him that she also did not know. He further told the police that thereafter he searched for his daughter in the neighbourhood but could not be traced. Thereafter, he decided to inform the police at 100 number but he saw that his mobile phone make GFive bearing the SIM No. 9981705439 was also missing. The complainant has further told that police that he borrowed somebody's phone and made a call at 100 number and after some time PCR Van came to his house. According to the complainant, in the meantime they heard the cries of a child from the nearby park situated behind his jhuggi and when they went there, they saw that his daughter 'M' was lying in the open park on the grass in naked condition and blood was oozing out from her private parts. Thereafter, the PCR officials immediately took the child to the SRHC Hospital and she was medically examined.
(3) On the basis of the statement of complainant Kamlesh Kumar, a rukka was prepared by the police and the FIR was registered. Thereafter, during investigations, it has come on record that on 25.9.2011 a call was made to the police at 100 number from the robbed mobile belonging to the complainant on the basis of which the accused Uday Kumar Yadav was traced / tracked and arrested in this case. After completing the investigations, the charge sheet was filed in the court.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 3 CHARGE:
(4) Charges under Section 363/376 (2) (f)/380 Indian Penal Code were settled against the accused Uday Kumar Yadav to which he pleaded not guilty and claim trial.
EVIDENCE:
(5) In order to discharge the onus upon it the prosecution has examined as many as twenty five witnesses.
Public Witnesses:
(6) PW13 Kamlesh Kumar has deposed that threefour month from today he was residing at Delhi, at jhuggi No. G1149, Industrial Area of Narela, near Shani Bazar along with his wife Radha and his daughter Muskan, aged about one year old and he was doing the work of labour. He does not remember the exact date, month and the year and states that about 34 months back the date of his examination, he slept in his jhuggi with his wife and daughter 'M' at about 9:00 PM. He has deposed that his daughter child 'M' aged one year was sleeping between him and his wife Radha in the jhuggi and at about 4 AM when he woke up he found that his daughter 'M' was not present in the jhuggi. According to the witness he asked his wife Radha about 'M' but she was also searching for his daughter 'M' and thereafter they both and the neighbourhood persons searched for his daughter 'M' but she could not be traced and thereafter they made State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 4 a call on 100 number from the mobile of a chowkidar. According to the witness, he also found his mobile phone model G5 bearing mobile No. 9981705439 missing from under his pillow and thereafter he made call on 100 number from the mobile phone of chowkidar. The witness has deposed that the police also reached at the spot and they also search for his daughter 'M'. He has deposed that thereafter they heard a voice of crying of a child from the nearby park and they reached there. According to the witness he found his daughter 'M' in naked condition on grass ground and the blood was coming out from her private parts and her frock and underwear were also found near her and thereafter he along with his wife and some persons with the help of the police took his daughter to a big hospital where medical examination of his daughter was conducted. His daughter remained admitted in the hospital for about three days.
According to the witness, police recorded his statement vide Ex.PW13/A bearing his signatures at point A and his mobile phone was not recovered.
(7) Ld. APP for the State with permission of the court put leading questions to the witness as he was not giving the complete details wherein the witness has admitted that he put his signatures on Ex.PW13/A at point A on the same morning of the day of incident and his daughter 'M' was admitted in the hospital at the morning time on the day of incident. He has further admitted that the day of State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 5 incident was 25.09.2011. He is not aware as to who committed the above said incident with his daughter. He admits that his daughter 'M' was kidnapped by the assailant from his jhuggi and thereafter rape was committed on her in the park. He further admits that he came to know later on that one Uday Kumar Yadav kidnapped his daughter 'M' and committed rape with her in the park. (8) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he does not recollect the names of the neighbours who accompanied him for searching his daughter. He further admits that police did not record statement of his neighbours in his presence. He has denied that the police had told him that rape had been committed on his daughter and has voluntarily explained that he has seen that his daughter was missing from the jhuggi and had found her in the near by park in naked condition while there was bleeding on her private parts. He has admitted that his daughter had also discharged "latrine" at the place where she was found. He admits that he could find his daughter and only when the police reached the spot and he went in search for her. The witness has admitted that the place where he found his daughter is a virtual jungle with large number of trees and bushes. He has further admitted that large number of dogs and cats also roam around in that area. According to the witness one Chowkidar was also present in the area. He has deposed that the police did not record his statement State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 6 in his presence and his statement was recorded in the hospital. He has admitted that large number of persons reside in the jhuggi cluster where he was residing. Witness has denied that large number of people get up early in the morning at around 22:30 and go to ease themselves in the area where his daughter was found. He has admitted that most of the jhuggi persons go to the open ground to ease themselves. Witness has denied that his child must have gone to the ground of her own. According to him the police came at about 4 AM.
(9) PW19 Raj Kumar @ Bhoolan has deposed that he has been residing at the above said address along with his elder brother Chottey Lal since 45 years and was working in a sleeper (chappal)factory situated at I2141 DSIDC, Narela. According to him, in the year 2011 he was having a mobile phone make SAMSUNG TATA Indicom bearing mobile No. 9250649240 which was given to him by his employer Devi Lal and he purchased the above said mobile number from a shop at Mangol Puri and produced his ID proof to him but he used another ID proof for the above said mobile phone. According to the witness, on 24.09.2011 at about 1115 p.m. he slept at the above said address on the Balkoni(chajja) and kept his above said mobile phone near his pillow and on the next morning on 25.09.2011 at about 7 a.m. when he woke up he found that his mobile phone was missing from there. The witness has State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 7 deposed that he tried to search his mobile phone in the house but same could not be found and at about 9 a.m. he went to his factory for his work and in the evening he also searched his above said mobile phone in the house. According to the witness, he also asked his friends if they had taken away his mobile and after two days police met him at his work place and also asked him about his missing phone and also asked him whether he had made any call at 100 number from his mobile phone on 25.09.2011 at about 305 a.m. and he informed them that he had not given any call at 100 number by his mobile at about 305 a.m. on 25.9.2011 and his mobile phone was theft by someone in the intervening night 2425.09.2011. The witness has deposed that after about one and a half - two months police informed him that his mobile phone has been recovered. The witness has deposed that he can identify the above said mobile phone if shown to him. It has been observed by the Court that the Investigating Officer had failed to produce the case property/ mobile in the Court and hence the Ld. Addl. PP was directed to proceed further with the examination of the witness after sending information to the DCP concerned regarding the conduct of the Investigating Officer. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted. (10) PW24 Radha has deposed that she is a housewife and is having two daughters namely 'M' aged two years and Khushi aged 6 State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 8 months. According to the witness, on the intervening night of 2425.9.2011 she along with her family were residing in Delhi in a Jhuggi at Bhorgarh and used to work as labours at Bhorgarh. The witness has deposed that at the relevant time her daughter 'M' was aged about one year. According to the witness, on the said day after finishing the work they came to their jhuggi at about 9:0010:00 PM and went to sleep and 'M' was sleeping in between her (witness) and her husband. The witness has deposed that at about 4:00 AM in the morning when she woke up, she found that 'M' was missing and their mobile phone was also found missing. According to the witness, she asked her husband about 'M' and thereafter made a search for her and thereafter her husband made a call on 100 number from the mobile phone of one neighbour after which the police came there and started searching her daughter. The witness has deposed that when they reached near the park, they heard the cries of a child and they saw that 'M' was there and blood was coming out from her private parts. According to the witness, thereafter they came to the Police Station and her daughter was taken to Hospital for treatment and they came to their Jhuggi. She has deposed that she did not come to know as to what had happened with her daughter. She deposed that she does not know the accused who is standing in the Court. The witness has deposed that the police made inquiries from her and recorded her statement and she told the above said facts to the Police. The witness State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 9 has stated that she has nothing else to say.
(11) Ld. Addl. PP for the State with due permission of the court put leading questions to the witness as she was not giving the complete details. The witness has admitted that she had told the police in her statement that on the intervening night of 24/25.9.2011 when they found their daughter in a naked condition in the park and blood was coming out from her private parts, she came to know that Uday Kumar Yadav S/o Sita Ram R/o Village Husepura Pachsakhiya, Police Station District Sahebganj, Distt. Mujjafaurpur, aged 20 years had lifted her daughter and also their mobile phone and committed rape with her daughter in the park and while committing the rape, he also inserted the first finger of the left hand inside the private parts of her daughter and when she started crying loudly, he escaped. The witness has further admitted that she had told the police in her statement that she also came to know that accused made a call on 100 number by mobile phone Tata Indicom Samsung No. 9250649240 which he lifted from Sector B4, Narela from a house. According to the witness, she was unable to tell the above said facts properly in her examination in chief due to lapse of time but now she had recollect these facts which are correct to her knowledge and recorded by the IO which is Ex.PW24/PX.
(12) The accused Uday Kumar Yadav has been specifically put to the witness but she submits that she did not see the accused State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 10 Uday Kumar at or near park. According to the witness, she even did not see the accused later on in police custody at any point of time. The witness has denied that she came to know that accused Uday Kumar Yadav was apprehended by the Police but when confronted with statement Ex.PW24/PX from point A to A this fact is so recorded. The witness has denied that she told the said fact to the police or that the same was correctly recorded by the police on her dictation.
(13) In her cross examination by Ld. Defence Counsel, the witness has deposed that she has never heard the name of Uday Kumar Yadav till today. She admits that she had not given the name of Uday Kumar to the police. She further admits that at the time of incident they were sleeping on the earth. According to the witness, she had told the police in her statement that they were sleeping on the earth in Jhuggi but when confronted with Ex.PW24/PX the word 'Thakt numa bistar' has been mentioned but word 'earth' is not mentioned. The witness has deposed that the police did not record statement of any other public person in her presence. She admits that the said park was adjacent to the rear wall of their Jhuggi. According to the witness, the child 'M' was not in a age to be able to walk. She has denied that wolves used to reside in the said park/ jungle. The witness deposed that she was not having any enmity with any person. According to the witness, the place where they used to State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 11 work was at a short distance from their Jhuggi. The witness has denied that the injuries sustained to her daughter were caused due to bite of a wild animal. She has denied that her husband was the owner of Tata Indicom Samsung mobile and has voluntarily added that she does not know the make or number of the mobile phone of her husband which he used to keep at the relevant point of time. Medical Evidence:
(14) PW9 Dr. Dolly Bansal has proved the handwriting and signatures of Dr. Archana on the MLC No. 103/11. According to the witness, the MLC No. 103/11 of prosecutrix 'M' D/o Kamlesh Kumar, female, one year old dated 25.09.2011 is in the handwriting to Dr. Archana which is Ex.PW9/A bearing signatures of Dr. Archana at point A and B. According to this MLC, Muskan, child victim was earlier medically examined at Satyawadi Raja Harish Chand Hospital and with alleged history of rape. According to this MLC Dr. Archana collected eight samples from the above said 'M' and handed over the same to L/Ct. Pooja in sealed condition with sample seal. In her cross examination by Ld. Defence Counsel, the witness has admitted that this MLC was not prepared in her presence and the above said patient was not examined in her presence.
According to the witness, Dr. Archana did not put her signatures on this MLC in her presence and he (witness) has no personal State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 12 knowledge of this case.
(15) PW10 Dr. Anvita Kaushik has produced the attested true copy of MLC No. 1281/11 of prosecutrix 'M' D/o Kamlesh Kumar, female, one year old on 25.09.2011 and same is Ex.PW10/A bearing his signatures at point A. This witness has not been cross examined on behalf of the accused and the entire evidence has gone uncontroverted.
(16) PW11 Dr. Sapna has deposed that on 25.09.2011 she was posted at SRHC Hospital, Narela, Delhi as SR and on that day the prosecutrix 'M' D/o Kamlesh Kumar, female, one year old was brought at the hospital by a PCR Official for medical examination with alleged history of missing of child over night and mother complaint of bleeding of per vaginal. According to the witness, she medically examined above said 'M' at about 5:40 AM and after her medical examination she prepared the MLC No. 1281/11 vide Ex.PW10/A bearing her signatures at point B and C. The witness has deposed that the child was uncooperate during the examination and in the local examination she (witness) found that genital part was dirty and matted with soil, slight swelling and bruising was present on the vaginal and inner area and tendered to touch, waterly discharge present and slight bleeding per vagina was present and hymen was freshly ruptured. According to the witness thereafter she referred the patient to BSA Hospital, higher center for further State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 13 examination and treatment. In her cross examination by Ld. Defence Counsel, the witness has denied that the injuries on the private part of the child could have been received on account of a fall or insect bite and has voluntarily explained that the rupture of the hymen indicates rape.
(17) PW17 Dr. Avdesh has deposed that on 15.12.2011 he was working in SRHC hospital as Casualty Medical Officer and on that day Uday Kumar Yadav was brought to the hospital by Ct. Naresh for medical examination and he medically examined him vide MLC No. 1846/11 which is Ex.PW17/A bearing his signatures at point A. The witness has deposed that in his opinion, it could not be said that the patient was not able to perform sexual intercourse and his blood sample was collected by him and handed over the same to the Investigating Officer in sealed condition along with sample seal. Witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
FSL / Forensic Evidence:
(18) PW12 V. Lakshmi Narasimhan has deposed that on 2.12.2011 she had received two parcels in the FSL duly sealed with the seal of RS and on opening the first parcel it was having one CD containing to audio files and the relevant file name is "avts_narela g block92506492401_7CF4.wav". The witness has deposed that the State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 14 speaker starts with the word "ek aadmi ka......" was marked as Ex.Q1. The witness has deposed that in the second parcel one audio cassette containing original specimen voice sample was found and the said specimen of speaker (Rahul) was marked as Ex.S1.
According to the witness on 21.12.2011 she received one another parcel sealed with the seal of RS containing one audio cassette which contained original specimen voice sample of Uday Kumar Yadav which was marked as Ex.S2.
(19) According to the witness, the auditory analysis of recorded speech samples of speakers marked Ex.Q1, Ex.S1 and Ex.S2 and subsequent acoustic analysis of speech sample by using CSL (Computerized Speech Lab) revealed that the voice of the speaker Ex.Z1 is similar / matched to the voice of speaker Ex.S2 in respect of their acoustic cues and their linguistic, phonetic features. Hence the voice exhibits of speakers marked Ex.Q1 and Ex.S2 are the possible voice of same person (Uday Kumar Yadav). The witness has deposed that the case exhibits were resealed with the seal of FSL, VLN, Delhi and forwarded to the SHO PS Narela. The detailed report in this regard is Ex.PW12/A. (20) In the cross examination, the witness has deposed that the instrument used for matching the voice sample was CSL (Computerized Speech Lab). According to the witness, she had State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 15 carried out auditory and spectrographic analysis. The witness has deposed that in auditory analysis they carry out the phonetic and linguistic method and in spectrographic analysis they analyze the formants / resonance frequencies and other phonetic features by use of filters both narrow and wide. The witness has denied the suggestion that she has carried the analysis in routine without any application of mind. Witness has also denied that the above result has been given on the instruction of the IO. According to the witness, the voice sample of both Rahul and Uday Kumar were taken at FSL Rohini. The witness has admitted that she had not taken these samples and has voluntarily explained that some scientific assistant must taken the same. She deposed that the voice sample place before her in the form of CD was original on the basis of the seal present on the CD which tallied with the details on the FSL form. (21) PW25 Shashi Bala Pahuja has proved the DNA report Ex.PW25/A prepared by Sh. D. S. Paliwal and has identified his signatures at point A being well conversant with the same having seen him while signing during the course of official duties. According to the witness, as per the report, the DNA was isolated from the source of exhibit '1d1' (Microslide), '1d2' (Microslide) and '2' (Blood sample of Uday Kumar Yadav) and DNA Profile were generated for the exhibit 1d1, 1d2 and 2 by using AmpFL STR MiniFiler PCR Amplification Kit, however, DNA could not be State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 16 isolated from the source of exhibit 1d3, 1e, 1f1, 1f2 and 1f3. STR analysis was used for each of the samples. Data was analyzed by using Gene Mapper IDX Software. The witness has further deposed that the alleles from the source of exhibit '2' (blood sample of Sh. Uday Kumar Yadav) are accounted in alleles from the source of exhibit '1d1' and '1d2' (Microslides). The witness has further deposed that the DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that DNA profile generated from the biological stains i.e. seminal stains present on the source of exhibits '1d1 and 1d2' (Microslides) is similar with DNA profile from the source of exhibit '2' (blood sample of Sh. Uday Kumar Yadav).
(22) In her cross examination by Ld. Defence Counsel, the witness has deposed that the exhibit numbers put on the samples as reflected in the report have been put by the examiner as per the observations given in the report. The witness has deposed that by using the above technique the accuracy of 99.999 percent can be obtained. A question was put to the witness by Ld. Defence Counsel whether there could be a 100 percent matching in a report which question was disallowed being hypothetical more so because it was observed that the report does not indicate a 100 percent matching. The witness has denied that the report has been given on the asking State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 17 of the IO or has been changed only to implicate the accused. Electronic Evidence:
(23) PW14 Pawan Singh has produced the record pertaining to mobile No.9525514056 which in the name of Rajakeshi Devi W/o Ramaageya Ray, R/o 106, Gadha, Gadha Town / Village Gadha Hassan, Anchal, Paru, Distt. Muzzaffarpur, Bihar. The customer application form is Ex.PW14/A (ORS) and the copy of election ID Card in support of the identity is Ex.PW14/B. The call detail record of the mobile No.9525514056 with effect from 24.9.2011 to 30.10.2011 is Ex.PW14/C (collectively running into eight pages) each page bearing the official seal and his initials at point A. He has also brought the certificate under Section 65B Evidence Act which is Ex.PW14/D bearing his signatures at point A. (24) In his cross examination by Ld. Defence Counsel, the witness has denied that the CDR has been manipulated and interpolated at the instance of the investigating officer. He has also denied that he is not competent to issue the certificate under Section 65 B of Evidence Act.
(25) PW15 M. N. Vijayan has produced the record pertaining to mobile No.9250649240 which in the name of Puneet Sabharwal S/o Anil Sabharwal, R/o 833A, Paschim Puri, New Delhi. The State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 18 customer application form is Ex.PW15/A (ORS) and the copy of driving license in support of the identity is Ex.PW15/B. The call detail record of the mobile No. 9250649240 with effect from 15.9.2011 to 1.12.2011 is Ex.PW15/C (collectively running into three pages) each page bearing the official seal and his initials at point A. He has also brought the certificate under Section 65B Evidence Act which is Ex.PW15/D bearing his signatures at point A and the Cell ID location Chart corresponding to the above said CDR is Ex.PW15/E bearing official seal and his signatures at point A. (26) In his cross examination by Ld. Defence Counsel, the witness has denied that the CDR has been manipulated and interpolated at the instance of the investigating officer. He has further denied that he is not competent to issue the certificate under Section 65 B of Evidence Act.
(27) PW16 Vishal Gaurav has produced the record pertaining to mobile No.9981705439 which is in the name of Bahadur S/o Dhooman, R/o House No. 140/2, Village Shah Nagar, Distt. Panna, Madhya Pradesh. The customer application form is Ex.PW16/A (ORS) and the copy of election ID Card in support of the identity is Ex.PW16/B (running into two pages). The call detail record of the mobile No.9981705439 with effect from 15.9.2011 to 1.12.2011 of Delhi Circle is Ex.PW16/C (one page) and of Madhya State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 19 Pradesh Circle is Ex.PW16/D, (one page), bearing the official seal and his initials at point A. The witness has also brought the certificate under Section 65B Evidence Act which is Ex.PW16/E bearing his signatures at point A and the Cell ID Chart is Ex.PW16/F (one page) bearing the official seal and his initial at point A. (28) In his cross examination by Ld. Defence Counsel, the witness has denied that the CDR has been manipulated and interpolated at the instance of the investigating officer. He has further denied that he is not competent to issue the certificate under Section 65 B of Evidence Act.
Police Witnesses:
(29) PW1 Ct. Narender has been examinedinchief by way of affidavit which is Ex.PW1/1. In his cross examination, the witness has deposed that he received tehrir after 7:00 AM for recording the FIR. According to him took about 45 minutes for recording the FIR and thereafter he handed over the print out to Duty Officer. The witness does not remember the exact time when he handed over the print out to the duty officer. He has denied the suggestion that the time of the recording of the FIR is antitimed. (30) PW2 Ct. Dipti Singh has been examinedinchief by way of affidavit which is Ex.PW2/1. The witness has relied upon the arrest memo of the accused which is Ex.PW2/A, his personal search State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 20 vide Ex.PW2/B and disclosure statement which is Ex.PW2/C. In his cross examination by Ld. Defence Counsel, the witness has deposed that he was on duty for 24 hours. He further deposed that he come to district court Rohini at 9 AM along with SI Rajbir Singh but he does not know at which time accused Uday Kumar had met them. He further deposed that he does not know at which time accused made the disclosure statement but his disclosure statement was recorded at the police station. According to the witness, he and SI Rajbir were present when the accused made disclosure statement but he do not know at which time the accused pointed out the place of incident.
Witness has denied that many persons were present there or that no public person was made witness by the IO at that time. The witness has deposed that the park is near G Block side near Shani Bazar. According to the witness, the disclosure statement was recorded by SI Rajbir and he (witness) was sitting in the same room but he does not know who signed the disclosure statement. According to the witness, the information about the arrest of the accused was given to the brother in law of the accused by the IO.
(31) PW3 HC Jagdish has tendered his examination in chief by way of affidavit which is Ex.PW3/1 bearing his signatures at point A and B. He has relied upon the documents i.e. FIR copy of which is Ex.PW3/A bearing his signatures at point A (Original seen and returned) and endorsement on rukka is Ex.PW3/B bearing his State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 21 signatures at point A. In his cross examination by Ld. Defence Counsel, the witness has admitted that there is an over writing on Ex.PW3/B at point X and the number has been changed. On court question as to why is this over writing, the witness has explained that there was a mistake in the number since initially in the rojnamcha 475 was written which was then changed to 477.
(32) PW4 Ct Rakesh has tendered his examination in chief by way of affidavit which is Ex.PW4/1 bearing his signatures at point A and B. He has deposed that on 19.12.2011, the voice sample of the accused was recorded in his presence at FSL, Rohini after which a audio cassette was prepared and after sealing the same with the seal of RS and deposited in the malkhana. This witness has not been cross examined on behalf of the accused and the entire evidence has gone uncontroverted.
(33) PW5 Ct Ravinder has tendered his examination in chief by way of affidavit which is Ex.PW5/1 bearing his signatures at point A and B. Witness has relied upon documents i.e. DD No. 8B copy of which is Ex.PW5/A and DD No.11B copy of which is Ex.PW5/B. (original DD entries seen and returned). This witness has not been cross examined on behalf of the accused and the entire evidence has gone uncontroverted.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 22 (34) PW6 Ct. Raj Kumar has tendered his examination in chief by way of affidavit which is Ex.PW6/1 bearing his signatures at point A and B. According to him on 25.9.2011 SI Rabir Singh handed over him the tehrir which he took to Police Station Narela and handed it over to the Duty Officer. The witness has further deposed that the Duty Officer thereafter handed over to him copy of FIR and original rukka which he handed over to SI Rajbir Singh at the SRHC hospital. In his cross examination by Ld. Defence Counsel, the witness has deposed that he received the tehrir at 7:35 AM at Satya Raja Harish Chander Hospital (SRHC Hospital). According to him, he was handed over the copy of the FIR and the original Tehrir after about 3045 minutes but the exact time he does not recollect.
(35) PW7 W/Ct. Seema Tyagi has tendered his examination in chief by way of affidavit which is Ex.PW7/1 bearing his signatures at point A and B. He has proved the PCR form which is Ex.PW7/A. This witness has not been cross examined on behalf of the accused and the entire evidence has gone uncontroverted. (36) PW8 HC Sultan Singh has tendered his examination in chief by way of affidavit which is Ex.PW8/1 bearing his signatures at point A and B. He has relied upon the entry in Register No. 19 vide Mud No. 505 dated 25.09.2011 copy of which is Ex.PW8/A, State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 23 Mud No. 670 dated 14.12.2011 copy of which is Ex.PW8/B, Mud No. 672 dated 15.12.2011 copy of which is Ex.PW8/C, Mud No. 674 dated 19.12.2011 copy of the same is Ex.PW8/D, entry in Register No. 21 vide RC No. 267/21/11 dated 21.11.2011 copy of which is Ex.PW8/E and RC No. 249/21/11 dated 02.12.2011 copy of which is Ex.PW8/F. (37) The witness has deposed that some entries are not mentioned in his affidavit due to inadvertently. On request of the Ld. APP for the state, permission was to examine the witness in this respect wherein the witness has deposed that he made entry in the register No. 19 vide Mud No. 428 on 04.10.2011 about the deposit of the exhibits by SI Rajbir Singh vide EX PW 8/G. SI Rajbir Singh also deposited audio cassette in the malkhana vide Mud No. 553 on 10.10.2011 vide EX PW 8/H. Copy of the RC No. 268/21/11 is EX PW 8/I. Copy of receipt of FSL are EX PW 8/J1, EX PW 8/J2 and EX PW 8/J3. (Original entries and original FSL receipt seen and returned). On court question the witness was asked to explain why Ex.PW8/B Mud No. 672 showed two dates i.e. 15.12.2011 and 17.12.2011 on which the witness has explained that initially the blood sample was received in the malkhana on 15.12.2011 on which the entry was made vide Mud No. 672 and later in the same case the semen sample was received on 17.12.2011 from the same hospital State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 24 and hence no separate Mud Number was given and the entry was made on the same Mud number. This witness has not been cross examined on behalf of the accused and the entire evidence has gone uncontroverted.
(38) PW18 Ct. Ajay has deposed that on 25.09.2011 he was posted at police station Narela and on that day he went to Delhi police control room for collection of a recorded CD. According to the witness, Insp. Incharge Control Room of PCR handed over one CD to him and same was brought by him at the police station Narela and the same was kept in a cloth pullanda by SI Rajbir and sealed the same with the seal of RS and thereafter same was seized by the IO vide seizure memo Ex.PW18/A bearing his signatures at point A. In his cross examination by Ld. Defence Counsel, the witness has deposed that he went to the Police Control Room at about 10:00 AM and returned to the police station at about 4:00 PM. The witness has brought the CD from the police control room in an envelope which was not sealed. According to the witness, he left police control room with CD at about 2:00 PM. The witness has deposed that the distance between police Head Quarter PCR control room and the police station is about 40 Kms. and he covered the distance between PCR control room and PS Narela on bus. The witness has denied that he made tampering with the CD.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 25 (39) PW20 HC Ashok Singh has deposed that on 17.12.2011 he was posted at police station Narela and on that day he along with SI Rajbir Singh and accused Udey Kumar reached at G Block, DSIDC Narela, Delhi at the instance of accused Udey Kumar and at the instance of accused Udey Kumar one mobile phone make SAMSUNG of TATA Indicom was found in the plastic panni in the bushes and the mobile phone was checked by SI Rajbir after its battery was taken out from the mobile phone and mobile phone was kept in a cloth pullanda and sealed with the seal of RS and IO seized the pullanda vide seizure memo Ex.PW20/A. The witness has deposed that thereafter, they returned back to the police station and IO deposited the seized pullanda in the Mal Khana and he also deposited the seal in the Mal Khana. The witness has deposed that on 18.12.2011 he along with SI Rajbir and accused Udey Kumar Yadav reached at the jhuggi G Block DSIDC Narela at the instance of the accused Udey Kumar and he pointed out one jhuggi in front of factory G1149 and disclosed that he kidnapped one female child of aged about one year from that jhuggi who was sleeping with her parents and he also disclosed that he committed theft of one mobile phone make G Five from that jhuggi and IO prepared the pointing out memo which is Ex.PW20/B. The witness has deposed that accused Udey Kumar also pointed out the place a park behind the above said jhuggi where he had committed rape upon the above said State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 26 female child and the pointing out memo was prepared by the IO vide Ex.PW20/C. The witness has deposed that IO also prepared the site plan of the above said places. The witness has correctly identified the accused Udey Kumar in the court. He has deposed that he can identify the above said seized mobile phone if shown to him. Here, it may be observed that the case property/ mobile phone was not produced by the Investigating Officer despite opportunity and hence, the Addl. PP for the State was directed to proceed further with the examination of the witness with further directions to place the conduct of the Investigating Officer before the senior officers. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(40) PW21 HC Ravinder Kumar has deposed that on 14.12.2011 he was posted in the anti snatching cell of Outer District, Delhi and on that day he along with SI Ajay Karan Sharama, SI Sumit Kumar, Const. Dharmender, Const. Rajesh, Const. Vikrant and secret informer reached at J Block, DSIDC Narela at about 7 p.m. after receiving the secret information that the offender who kidnapped one female child aged about one year and committed rape with her was going to come at J block DSIDC, Narela, Delhi. According to the witness, SI Ajay Karan Sharma asked 45 public persons to join the police proceedings but none agreed and left the place without informing their names and addresses on one pretext or State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 27 the other. According to the witness, at about 715 p.m. at the instance of secret informer accused Udey Kumar was apprehended by them who was sitting on the heap of the concretes (concrete ke dher par) and he tried to run away from there and after 2025 paces he was apprehended by them and he (accused) disclosed his name as Udey Kumar. The witness has deposed that formal search of the accused was taken by SI Ajay Karan Sharma and one mobile phone make Nokia of black colour recovered from the left pocket of his pant. According to the witness, SI Ajay Karan Sharma kept the mobile phone in a cloth pullanda and sealed the same with the seal of AKS, prepared the seizure memo of the phone. The witness has deposed that SI Ajay Karan Sharma arrested the accused Udey Kumar and his personal search was taken and his disclosure statement was recorded by the SI Ajay Karan Sharma. According to the witness, the accused Udey Kumar disclosed that he kidnapped one female child aged about one year from a jhuggi in front of the G 1149 factory DSIDC Narela. The witness has deposed that the accused also disclosed that he had also committed the theft of a mobile phone from that jhuggi and he committed the rape on the above said female child in the park behind the above said jhuggi. According to the witness, thereafter, at the instance of accused Udey Kumar they reached at the factory J2980, DSIDC, Narela and one mobile phone make Nokia was produced by one Rupesh which was State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 28 sealed by the IO with the seal of AKS and seized the same after preparation of the seizure memo and he (witness) does not remember the IMEI number and mobile number of that phone now but SI Ajay Karan Sharma have mentioned IMEI number and mobile number in the seizure memo. The witness has correctly identified accused Udey Kumar in the court. The witness has deposed that he can identify the above said seized mobile phone if shown to him. (41) The witness has correctly identified the mobile phone make Nokia of black and silver colour (one battery was found in the mobile phone and there was no SIM in the mobile phone) and battery, as the same which was recovered from the possession of accused Udey Kumar during his formal search. Mobile Phone and battery are collectively Ex.P1. The witness has also correctly identified the one mobile phone make Nokia of black and silver colour bearing IMEI No. 359544/01/118141/3, battery, one SIM card of reliance mobile bearing No. 89910 and 51410000179565, as the same which were produced by Rupesh and same are collectively Ex.P2. The witness has correctly identified Rs.131/ as the same which were recovered from the accused Udey Kumar during his personal search. (42) In his cross examination by Ld. Defence Counsel, the witness has deposed that he joined the investigation with SI Ajay Karan Sharma for two days and they departed their office at about 6 p.m. on 14.12.2011 and reached at the spot at about 7 p.m. and there State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 29 was a darkness. According to the witness, there was electricity light at the spot which was situated at a distance of 10 15 feet on a factory. He has deposed that the IO prepared 45 documents about the above said proceeding at the spot. He has further deposed that SI Ajay Karan did not mark any specific identification marks on the above said mobile phone. The witness has admitted that such types of mobile phones are easily available in the market and has voluntarily explained that these mobile phones have specific IMEI numbers at the time of recovery. The witness has denied that the mobile phone Ex.P1 was not recovered from the accused Udey Kumar. He has deposed that he returned the seal of AKS to SI Ajay Karan after two days after deposit of the case property in the Mal Khana. According to the witness, the case property was not deposited in the Mal Khana by the IO in his presence. He has further denied that he did not join the investigation with SI Ajay Karan or that the above said mobile phones were not recovered in his presence. He has deposed that they returned back to their office at about 10 p.m. on 14.12.2011 and his statement was recorded by SI Ajay Karan on the same night at the spot. He has deposed that SI Rajbir IO of this case recorded his statement on the next day on 15.12.2011 at his office. According to the witness, Rupesh met them at the factory J Block, 2980 DSIDC on 14.12.2011 and he along with the whole team met Rupesh there. He has admitted that the State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 30 mobile phone Ex.P2 was produced by Rupesh but the same was recovered at the instance of accused Udey. He does not remember the time when Rupesh met them. He does not remember whether SI Ajay Karan recorded statement of Rupesh and states that he put his signatures on seizure memo. He also does not remember whether the other workers were also present in the factory or not. He further does not remember whether the IO had asked the public persons to join the proceedings. According to the witness, SI Ajay Karan prepared the site plan of the place of recoveries of both mobile phone. He has denied that he is deposing at the instance or that the IO had not recorded the disclosure statement or that no site plan of the spot was prepared by the IO.
(43) PW22 SI Ajay Karan Sharma has deposed that on 14.12.2011 he was posted in the above said office. He has deposed that since October, 2011 on the directions of the DCP Outer District, he was assisting the investigation of this case. He has further deposed that he had obtained photo copies of the call details, phone No. 9981705439 of father of victim 'M' and on scrutiny of the call details it was found that on the night of 25.09.2011 the SIM of this mobile phone was used in some other mobile set. According to the witness, on 26.09.2011 another SIM card was used in the stolen G Five mobile phone which belonged to the father of the victim and on the analysis of the mobile phone call details, it was found that the State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 31 SIM of the stolen mobile phone of father of victim was used in the phone instrument of one Rupesh Kumar who was working in factory at J2790, DSIDC, Narela, Delhi. The witness has deposed that on enquiry at the said premises it was found that earlier Uday Kumar Yadav used to live in this room and he had left suddenly for his native place in Bihar somewhere near Diwali. The witness has deposed that on further enquiry it was found that a phone number being used by Uday Kumar was used in a phone instrument was used for making calls on 25.09.2011 with the SIM of the stolen mobile phone of father of victim 'M'. The witness has further deposed that it was established through the CDRs that Uday Kumar Yadav was using this mobile phone and he was making calls to his wife in Bihar (subscriber IDEA Bihar) through the stolen mobile phone and SIM of father of the victim. According to the witness, efforts were made at his native place in Muzzafarpur to apprehend the accused Uday Kumar but it was found that he had left for Delhi some five six days back.
(44) The witness has further deposed that on 14.12.2011 he was present at his office when informer came at their office and gave secret information that accused in this case Uday Kumar Yadav has been seen roaming in the area of J Block , DSIDC, Narela and if a quick raid is conducted he can be arrested and he immediately informed his senior officers and on their directions he formed a State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 32 raiding party including SI Sumit, HC Ravinder, Const. Rakesh, Const. Dharminder and Const. Vikrant and proceeded for further necessary action along with the informer vide DD No. 4 ASC/OD dated 14.12.2011 on private vehicles. The witness has further deposed that on reaching J Block DSIDC he asked four five passersby to join the police proceedings but all of them left the spot citing genuine excuses and without disclosing their names and addresses. According to the witness, due to paucity of time no notice could be served upon them. He has deposed that without wasting any further time he formed a raiding party along with the present police staff and made search for the accused Uday Kumar Yadav. The witness has deposed that after around 30 minutes informer pointed out towards the person sitting on a concrete block (concrete ka dher) and told him that this is the accused Uday. He has deposed that on seeing the police party, Uday tried to flee but he along with the police staff ran for about 20 steps and apprehended him. The witness has deposed that he then interrogated Uday regarding the incident pertaining to this case and on his fisting mobile phone make Nokia of black colour was recovered from the front left pocket of the pant which he was wearing. According to the witness, on checking the IMEI number of this mobile phone, it was found that this was the same mobile phone which was used in making calls on the night of 25.09.2011 in which the SIM of the stolen mobile phone of father of State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 33 victim was used. The witness has deposed that, on further interrogation Uday Kumar Yadav disclosed that on the night intervening 24/25/09.2011 he had stolen two mobile phones and while stealing the mobile phone from a jhuggi at G Block DSIDC Narela he had taken away small one year girl who was sleeping between her parents. The witness has deposed that the accused had then taken the girl to a park behind the said jhuggi and had tried to rape her. The witness has deposed that he recorded his disclosure statement in detail and sealed the mobile phone recovered from the accused Uday Kumar Yadav with the seal of AKS and he has mentioned all the descriptions of the mobile phone with IMEI number in the seizure memo. According to the witness he arrested the accused Uday Kumar and took his personal search and after this the accused had pointed out the place from which he had stolen the mobile phone along with the girl which he recorded vide pointing out memo. The witness has deposed that he had also prepared the site plan of the spot where accused Uday Kumar Yadav was arrested and then he proceeded to J block, DSIDC Narela where he had met Rupesh Kumar who produced a mobile phone make Nokia 6300 in which the SIM of the stolen mobile phone of father of victim was used. According to the witness, he had mentioned the IMEI number and other details while preparing the seizure memo of this mobile phone and the phone was converted into a pullanda with the help of State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 34 white cloth and sealed with the seal of AKS which seal after use was handed over to HC Ravinder and thereafter he prepared the seizure memo of this mobile phone. According to the witness, he thereafter returned back to their office and made their arrival DD No. 6 dated 14.12.2011 and he prepared the Kalandra under Section 41.1(b)(a)
(d)/102 Cr.PC. and produced the accused with Kalandra before the court on 15.12.2011 and informed police of police station Narela about the arrest of the above said persons vide DD No. 57 B dt. 15.12.2011 P.S. Narela. Witness has deposed that SI Rajbir IO of the case contacted him on 15.12.2011 and he recorded his statement. The witness has correctly identified the accused Uday Kumar Yadav in the court.
(45) The witness has correctly identified the mobile phone make Nokia of black and silver colour (one battery was found in the mobile phone and there was no SIM in the mobile phone) and battery, as the same which was recovered from the possession of accused Udey Kumar during his formal search. Mobile Phone and battery are collectively Ex.P1. The witness has also correctly identified the one mobile phone make Nokia of black and silver colour bearing IMEI No. 359544/01/118141/3, battery, one SIM card of reliance mobile bearing No. 89910 and 51410000179565, as the same which were produced by Rupesh and same are collectively Ex.P2. The witness has correctly identified Rs.131/ as the same which were recovered State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 35 from the accused Udey Kumar during his personal search. (46) The witness has deposed that the accused Uday Kumar Yadav was found with mobile phone Ex.P1 bearing IMEI No. 353533027583650 and the accused used the SIM of the mobile No. 9981705439 of father of the victim on 25.09.2011 at about 9:39 and at 9:40 p.m. and the same is mentioned at point X on Ex.PW16/C. The witness has further deposed that the mobile phone Ex.P2 produced by Rupesh Kumar bearing the IMEI No. 35954401181410 and the SIM of mobile No. 9981705439 of father of the victim was used on this mobile phone Ex.P2 according to call details Ex.PW16/C. (47) In his cross examination by Ld. Defence Counsel, the witness has deposed that he did not collect the documents regarding the ownership of the above said mobile phone. According to the witness, the SIM found in the mobile phone Ex.P2 belonging to Rupesh was being used by Rupesh. The witness has deposed that he did not ask for any bill for the said mobile from the said Rupesh. He has denied that he cannot tell the IMEI No. of the Nokia phone recovered from the possession of accused Uday Kumar and has voluntarily explained that he can tell the IMEI number after operating the same by putting the battery. The witness has denied the suggestion that unless they have the original receipt it is not State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 36 possible to connect the accused with the IMEI number and has voluntarily explained that after operating the phone one can retrieve the IMEI number and the user of the phone can be ascertained from the call details record of the said set. The witness has deposed that he never met the father of the victim. According to the witness he has not trace out from the operator of the SIM the particular ID proof of the person to whom the SIM is used and has voluntarily explained that the phone number 9981705439 which was stolen is mentioned in the FIR as being used by the father of the victim. The witness is unable to tell to whom the phone No. 9818518358 is issued which was being used by the accused and has voluntarily explained that as he has not made any enquiry regarding the same. Witness is unable to tell to whom the phone No. 9525514056 is issued which was being used by the wife of the accused in Bihar and has voluntarily added that as he has not made any enquiry regarding the same. The witness ha denied the suggestion that the phone No. 9525514056 was not belonging or issued to the relative of the accused. According to the witness, Rupesh had used the SIM of the stolen mobile phone in his own instrument as he had found this SIM hidden in the window of the room where accused Uday Kumar Yadav was living. The witness has further denied that no mobile phone was recovered from Uday Kumar Yadav because the mobile phone which was shown to be recovered was not having the SIM card. The witness has further State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 37 denied that Uday Kumar accused has not pointed out the spot of incident. According to the witness he prepared two seizure memos at the spot where he arrested the accused. He has deposed that there was sufficient light in the area which was coming from the factories situated there. He has deposed that he did not record the statement of any police officers nor he record the statement of Rupesh. The witness has deposed that he reached to Rupesh because of the CDR call details of his mobile phone. According to the witness, he had obtained the thumb impression of Rupesh on the seizure memo of the mobile phone produced by him. The witness has deposed that he did not make any enquiry regarding the mobile phone TATA Indicom. The witness has denied the suggestion that he had not disclosed the name of Bachey Lal knowingly to conceal the facts from the Hon'ble court and has voluntarily added that he has mentioned all the details of Bachey Lal in the kalandra through which he produced the accused before the concerned court. Witness has denied that he is deposing falsely at the instance of IO to prove the case or that no disclosure statement was recorded by him. According to the witness, he went to the spot and prepared the pointing out memo but not the site plan. The witness has deposed that all the team people were present there along with him at the spot. The witness has further deposed that they reached the spot at around 9 p.m. and they returned to their office at around 10 p.m. The witness has denied that he is State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 38 deposing falsely or that he has not joined the investigation. (48) PW23 SI Rajbir Singh has deposed that on 25.9.2011 he was posted at Police Station Narela and on that day at about 4:55 AM he received DD No. 11 B Ex.PW5/B regarding missing of a female child of one year and also about missing of one mobile phone. According to the witness, he along with Ct. Baljeet reached at the spot Jhuggi in front of G1149, DSIDC Narela, but there he came to know that victim female child was recovered from the park and she was taken to the SRHC Hospital but no eye witness was found there also. The witness has deposed that he along with Ct. Baljeet reached at the SRHC hospital and came to know that female child was referred to the BSA hospital. He has deposed that the parents of the female child met him at SRHC hospital and he recorded the statement of Kamlesh Kumar father of the female child vide Ex.PW13/A. The witness has deposed that he collected the MLC of the female child 'M' and thereafter he prepared the rukka Ex.PW23/A which bears his signatures at point A and send the Ct. Raj Kumar along with rukka for registration of the FIR who met him in the SRHC hospital. The witness has deposed that Ct. Raj Kumar came there and handed to him copy of FIR and original rukka for further investigations and thereafter, he went to BSA Hospital where Dr. Archana handed over the exhibits of female child 'M' to him in sealed condition along with the sample seal and he seized the same State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 39 vide memo Ex.PW23/B. The witness has deposed that thereafter, they returned back to the police station and deposited the seized articles in the malkhana. The witness has deposed that thereafter, he obtained the call details of the mobile phone by which the caller made call at 100 number and he came to know that Puneet Sabbarwal was the owner of the mobile phone and thereafter on further investigations he came to know that the mobile phone 9250649240 was used by Raj Kumar on the day of incident. According to the witness, he contacted Raj Kumar and he informed him that the said mobile was missing from the intervening night of 2425.9.2011 and he had not made call by his mobile phone to 100 number at about 3:05 AM. The witness has deposed that he informed about the progress of the case to the higher officers and then antisnatching cell of the outer district was directed to assist in the investigations of this case.
(49) The witness has deposed that on 15.12.2011 he received information from the police of anti snatching cell of outer district that accused Udai Kumar was arrested by them and two mobile phones were recovered from him. According to the witness he reached at Rohini court complex where SI Ajay Karan Sharma produced the accused Udai Kumar Yadav before Ld. MM with a Kalandra under Section 41/102 Cr.PC and with the permission of the court he interrogated the accused and recorded his disclosure statement vide State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 40 Ex.PW2/C. The witness has deposed that he arrested the accused Udai Kumar vide Ex.PW2/A and conducted his personal search vide memo Ex.PW2/B. The witness has deposed that the court of Ld. MM handed over all the documents of the Kalandra submitted by SI Ajay Karan Sharma before the court, to him for further investigation. According to the witness, he obtained the four days Police Custody Remand of the accused and during the remand period on 17.12.2011, the accused pointed out the place where he kept the mobile phone and at his instance one mobile phone make Samsung - Tata Indicom was recovered from behind the JP Dharamkanta, DSIDC. The witness has deposed that he converted the mobile phone into a pullanda and sealed the same with the seal of RS and took the same into possession vide memo Ex.PW20/A and they returned at the police station and deposited the case property in the Malkhana. The witness has deposed that on the next date on 18.12.2011 the accused pointed out the place from where he kidnapped the female child aged about one year and also committed the theft of mobile phone and he prepared the pointing out memo vide Ex.PW20/B. The witness has further deposed that the accused also pointed out the place where he tried to commit the rape upon the female child and he prepared the pointing out memo Ex.PW20/C. He prepared the site plan from where the mobile phone was recovered vide Ex.PW23/C and State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 41 prepared the site plan of the place from where the female child was kidnapped and where the accused tried to commit rape with her vide Ex. PW23/D. The witness has deposed that the accused Uday Kumar Yadav was produced at HRHC Hospital Narela Delhi for medical examination for 15.11.2011 and he collected the MLC. The witness has deposed that during his investigation, he has also collected the MLC of the female child from the BSA Hospital. The witness has further deposed that during his investigation, the accused Uday Kumar was taken to FSL Rohini Delhi with the permission of the court and his voice sample was obtained by the FSL officials and the sample original audio cassette and one copy of the sample audio cassette were seized by him vide seizure memo Ex. PW23/E and the said audio cassettes were kept by him in a cloth pullanda and sealed the same with the seal of RS in the presence of Const. Rakesh and Const. Ved Prakash, after which the same were deposited in the Mal Khana. The witness has deposed that he collected one recorded CD from the police control room about the call dated 25.09.2011 and kept the same in a cloth pullanda and sealed the same with the seal of RS and seized the same vide seizure memo Ex.PW18/A and also deposited the same in the Mal Khana. He has further deposed that the above said exhibits were sent to FSL Rohini for expert opinion and he collected the expert opinion Ex.PW12/A. According to the witness, on 21.12.2011 the accused was taken to the FSL with the State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 42 permission of the court for taking his blood sample on his application which is Ex.PW23/F and his blood sample was taken there. The witness has deposed that he recorded the statement of witnesses during his investigation and after completion of investigation, he submitted the charge sheet against the accused. He has correctly identified the accused Uday Kumar Yadav in the court. The witness has also identified the mobile phone of TATA Indicom SAMSUNG CDMA phone bearing No. A000001D64A4B0 and one battery and one SIM card of TATA Indicom bearing No. A100001580307E (8070C350) taken from the mobile phone which was shown to the witness. He has correctly identified these articles (mobile phone, battery, SIM) as recovered at the instance of the accused Uday Kumar Yadav which mobile phone, battery and SIM are collectively Ex.P3.
(50) In his cross examination by Ld. Defence Counsel, the witness has deposed that the mobile phone TATA Indicom was recovered from the bushes near JP Dharmkanta. He admits that the JP Dharmkanta is a public place and everybody can approach that area. He did not call any public person to join the investigation while the mobile phone was recovered. He admits that the mobile phone Ex.P3 belonging to Raj Kumar. He has denied that they had planted the mobile phone Ex.P3 upon the accused Uday Kumar to save Raj Kumar. He did not collect the ownership document of mobile phone State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 43 No. 9981705439 from the service provider. According to him he had not asked for the ID proof of the operator of mobile No. 9712867386 nor he asked any operator of the ownership proof of mobile No. 9818518358, 9525514056 and also 9712867386. The witness has denied that the accused Uday Kumar have been falsely implicated in this case or that he had not conducted the investigation fairly. He admits that he has not submitted the call detail records of his mobile phone with charge sheet and has voluntarily explained that he had made Nodel Officer as witnesses in the list of witness of the record of the mobile phone. Witness has admitted that Raj Kumar did not make any complaint about missing or theft of his mobile phone and that this fact was not verified from any independent witness. He further admits that no public person was joined at the time when the accused pointed out the place of recovery and has pointed out the place of occurrence. He has denied that accused did not point out any place of recovery and the places where he had committed the crime or that he tried to save the real culprits Bachey Lal and Raj Kumar or that the false charge sheet has been filed against the accused.
STATEMENT OF ACCUSED &DEFENCE EVIDENCE:
(51) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 44 in which all the incriminating evidence / material was put to him which he has denied. However, he has not examined any witness in defence. According to the accused he is innocent and has been falsely implicated by the police only to solve the present case and to save the real culprit. He has explained that on the day of alleged incident, he had taken liquor and became unconscious and when he regained his consciousness, he started to go to his home and came out of the park when he heard noise from behind the bushes. The accused has further stated that he went near the bushes and he saw a person was there along with a female child and the child was crying. He asked that person what he was doing with the child on which he told his that the child has got injuries. According to the accused, he got suspicious and he wanted to call the police at 100 number but since he was not having a mobile, he saw that person was having a mobile.
He took the mobile from that person and made a call at 100 number and in formed the police and thereafter he went to his home and after some time the police has falsely implicated him in this case. The accused has further stated that he did not do anything wrong upon the child in fact he helped the police by making a 100 number call. However, he did not examined any witness in defence. FINDINGS:
(52) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 45 considered the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed on behalf of the accused. My findings are as under:
No Eye Witness to the Incident:
(53) This case pertains to kidnapping and rape of an year old toddler (who was sleeping with her parents in the jhuggi) by an unknown person. The child/ toddler Baby 'M' who was sleeping with her parents in her Jhuggi was kidnapped at night and was thereafter found abandoned in a public park in the early morning hours. The best evidence in any case is ocular count but unfortunately there is no eye witness to the incident since at the time the toddler was kidnapped she was sleeping in the Jhuggi between her parents and it was at 4:00 AM in the morning that the parents realized that she was missing. The child herself is too small to recognize or identify anybody (being hardly one year old) and the entire prosecution case is based upon the circumstantial, medical, forensic and electronic evidence.
Age of the Prosecutrix:
(54) The child prosecutrix was one year old at the time of the incident, which aspect has not been disputed by the accused and has gone uncontroverted.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 46 Medical Evidence:
(55) The medical record / MLC Ex.PW10/A of the child victim 'M' has been duly proved by Dr. Anvita Kaushik (PW10) and Dr. Sapna (PW11). Further, Dr. Avdesh (PW17) has duly proved the MLC of the accused vide Ex.PW17/A. Dr. Anvita Kaushik (PW10) and Dr. Sapna (PW11) have duly proved that the toddler/ child aged one year, was brought to the hospital by PCR Officials with alleged history of missing overnight and was found to be bleeding P/V in a public park after which the child was immediately sent for gynecological examination / opinion and was found to have been subjected to sexual assault, but the the parents of the child initially refused for internal examination of the child. At the time when the child was brought to the hospital on 25.9.2011 at about 5:45 AM, she was running a temperature 103 degree, her pulse 120 p/m, having cough and cold with high fever. She was having bruises over her lower chest and abdomen and was uncooperative during examination. On local examination her genital parts were found to be dirty and matted with soil, slight swelling and bruising was present on the vagina and inner area which was tender to touch, watery discharge was present, slight bleeding per vagina was present, hymen was freshly ruptured and internal examination under anesthesia was opined under opinion patriatiaom (which State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 47 internal examination was initially refused by the parents of the child). Further, the child was also referred to the higher center for further management at BSA Hospital and it is evident that the doctor of the said hospital had also given similar findings as given by the previous hospital (SRHC Hospital). Thereafter, exhibits of the child victim were collected at BSA hospital by Dr. Archana on 25.9.2011 vide MLC No. 103/11 whose signatures have been proved by Dr. Dolly Bansal (PW9).
(56) Dr. Avdesh (PW17) has proved the MLC of the accused vide Ex.PW17/A and has proved that it could not be said that the accused was not capable of performing sexual intercourse. He has further proved the collection of the blood sample of the accused which were sealed and handed over to the Investigating Officer. (57) In view of the above, I hold that the medical evidence which has come on record, conclusively establishes the commission of aggravated sexual assault and rape upon the child. Her hymen was freshly ruptured and there were bruises on her chest and lower abdomen. The incident took place in the month of September 2011 when the child was kidnapped from the jhuggi while she was sleeping between her parents and after the incident she was left abandoned in a public park as result of which the child had developed high fever, cough and cold and was bleeding P/V at the time she was recovered by her parents and the police. The medical State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 48 evidence is hence compatible with the prosecution case i.e. aggravated sexual assault / commission of rape upon the child.
Electronic Evidence:
(58) The case of the prosecution is that on the intervening night of 24/25.9.2011 in DSIDC, Narela the accused Uday Kumar Yadav had committed the theft of two mobile phones first belonging to Raj Kumar (PW19) and second belonging to Kamlesh Kumar father of the child/ toddler Baby 'M' and while committing theft of the mobile phone of Kamlesh Kumar make GFive, the accused also picked up/ kidnapped the child/ toddler baby 'M' who was sleeping between her parents and took her to the adjoining park where he committed rape upon her (penetration of human organ) and also digital rape (penetration by use of first finger as per his own disclosure) resulting not only rupturing her hymen but also her anal cavity. It is also the case of the prosecution that about one hour prior to the present incident the accused Uday Kumar Yadav had committed theft of another mobile phone make SAMSUNG TATA Indicom having SIM No. 9250649240 from one Raj Kumar @ Bhoolan a resident of the same area (which mobile phone was later recovered from the possession of the accused Uday Kumar Yadav at the time of his arrest). In the morning of 25.9.2011 the accused Uday Kumar Yadav had used this stolen mobile phone of Raj Kumar State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 49 having SIM No. 9250649240 to make a call at 100 number to the police (which he did in order to divert the investigations). (59) After the report was lodged with the police regarding the incident of kidnapping and rape of the toddler Baby 'M' and the theft of mobile phone of her father Kamlesh Kumar (details of mobile phone and SIM given in the FIR i.e. make G5 bearing no.
9981705439) which was found to be having the IMEI No. 358932034783490. The said number was put on surveillance and it was hence that after the analysis of the entire call details that the police could ultimately reach to the accused Uday Kumar Yadav. (60) The Call Detail Records of the same have been placed before this Court and duly proved by the various Nodal Officers from the Service Providers i.e. Pawan Singh (PW14), M.N. Vijayan | (PW15) and Vishal Gaurav (PW16).
(61) Pawan Singh (PW14), Nodal Officer, Idea Cellular Ltd., has proved the call detail record of mobile No. 9525514056 which is in the name of Rajakeshi Devi W/o Ramaageya Ray, R/o 106, Gadha, Gadha Town / Village Gadha Hassan, Anchal, Paru, Distt. Muzzaffarpur, Bihar, with effect from 24.9.2011 to 30.10.2011 vide Ex.PW14/C. (62) M. N. Vijayan (PW15) the Nodal Officer from TATA Teleservices Ltd. has proved the call detail record of mobile No. State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 50 9250649240 which is in the name of Puneet Sabharwal S/o Anil Sabharwal, R/o 833A, Paschim Puri, New Delhi, with effect from 15.9.2011 to 1.12.2011 vide is Ex.PW15/C. (63) Vishal Gaurav (PW16) Nodal Officer, Bharti Airtel Ltd. has proved the call detail record of mobile No.9981705439 which is in the name of Bahadur S/o Dhooman, R/o House No. 140/2, Village Shah Nagar, Distt. Panna, Madhya Pradesh, with effect from 15.9.2011 to 1.12.2011 of Delhi Circle vide Ex.PW16/C and of Madhya Pradesh Circle vide Ex.PW16/D. (64) The case of the prosecution is that during this period the mobile set of the father of the victim (i.e. Kamlesh Kumar) which was allegedly stolen by the accused Uday Kumar was used by inserting various SIMs the details of which were consolidated and the users of the same were interrogated. The electronic evidence in the form of Call Detail Records indicated that the accused Uday Kumar Yadav who was found with the mobile phone Ex.P1 with IMEI No. 353533027583650 (at the time of his arrest by the Anti Snatching Cell) had used SIM No. 9981705439 belonging to the father of the victim on 25.9.2011 at 9:30 to 9:40 AM as evident from the CDR Ex.PW16/C at point X. The mobile phone bearing IMEI number 359544011181410 having SIM No. 9981705439 (belonging to Kamlesh Kumar father of the victim) was produced by one Rupesh State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 51 Kumar.
(65) The witness SI Ajay Karan Sharma (PW22) has duly proved having collected the various Call Detail Record which complete the sequence of events leading to the accused. It has come on record that the mobile phone of Raj Kumar (PW19) was stolen on the intervening night of 24/25.9.2011 and it was from this phone that a call was made to 100 number at 3:00:29 hours and at 3:04:37 hours on 25.9.2011. This mobile set of Raj Kumar was got recovered by the accused Uday Kumar Yadav pursuant to his apprehension and disclosure. The FSL Report of Spectrographic Analysis (Voice Analysis) proves that this call was made by the accused Uday Kumar Yadav (not Raj Kumar) and this he did in order to evade and shift the liability of the crime committed by him and to divert the investigations. The accused Uday Kumar Yadav could not succeed in his designs and before he could complete/ conclude the call, the battery of the mobile phone got discharged. As per the report of the Spectrographic Analysis the voice of the caller (making 100 number call) matched with the voice of the accused (which fact even the accused Uday Kumar Yadav does not deny). (66) After the Call Detail Records were collected and analyzed, the Investigating Officers interrogated Raj Kumar S/o Mahajan Prashad, Brijesh Kumar S/o Sohan Yadav, Rupesh Kumar S/o Rajender Mandal and Naresh Kumar (the owner of the factory) State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 52 and it was revealed that the mobile set bearing IMEI No. 35954401118140 which was having SIM No. 9712867386 belonged to Brijesh Kumar S/o Sohan Yadav R/o F1741, DSIDC, Narela, Delhi who had given the said mobile set for use to his friend Rupesh Kumar S/o Rajender Mandal R/o J2790, DSIDC, Narela, Delhi. This Rupesh Kumar was staying in a room in factory No. J2790, DSIDC, Narela which room was given to him by his employer in which room earlier Uday Kumar Yadav (accused before this Court) was staying. Rupesh informed the police that after he shifted into this room he found the above SIM bearing No. 9981705439 (belonging to the father of the victim) and he started used the same on the mobile set being used by him bearing IMEI No. 35954401118140 (which set was given to him by Brijesh Kumar). (67) The Investigating Officer SI Ajay Karan Sharma (PW22) has proved that after he found the SIM of the stolen mobile phone of the father of the victim (bearing No. 9981705439) being used in the phone instrument of Rupesh Kumar working in J2790, DSIDC, Narela, he made inquiries from the owner of the premises and it was then confirmed that earlier Uday Kumar Yadav (accused before this Court) was residing in the said room and he suddenly left the premises somewhere near Diwali.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 53 (68) When the accused was arrested by the Anti Snatching Cell a Kalandra under Section 41.1 read with Section 102 Cr.P.C. was prepared and filed before the Ld. MM which Kalandra is a part of the present judicial record and admissible perse (Kalardra proceedings neither denied nor controverted by the accused). It is borne out from the said Kalandra that since the Call Detail Records of IMEI No. 353533027583650 revealed that SIM No. 9015906021 was used in the said mobile instrument (so recovered from the possession of the accused Uday Kumar Yadav), inquiries were made with regard to the ownership of this SIM No. 9015906021 and it was found to be belonging to one Bachchey Lal S/o Rama Ram working at Factory No. 1078, DSIDC, Narela as Security guard. This Bachchey Lal was then interrogated and he revealed that he was a friend of Uday Kumar Yadav (accused) and this phone set (bearing IMEI No. 353533027583650) was given to him by Uday Kumar Yadav when he was going to Bihar and Uday Kumar had asked him to use the same till his return to Delhi. According to Bachchey Lal this mobile set bearing IMEI No. 353533027583650 was returned by him to Uday Kumar Yadav on his return to Delhi. This explains the use of the mobile set bearing IMEI No. 353533027583650 on SIM No. 9015906021 belonging to Bachchey Lal during this period when Uday Kumar Yadav was allegedly in Bihar and which mobile set Ex.P1 was recovered from his possession when he was apprehended State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 54 by the Anti Snatching Cell Outer District.
(69) From the analysis of the Call Detail Records as herein above the sequence of events which emerge is as under:
➢ That on 25.9.2011 at 3:00:29 hours and at 3:04:37 hours 100 number calls were made by the accused Uday Kumar Yadav through SIM No. 9250649240 from the mobile set make SAMSUNG belonging to Raj Kumar (PW19) which was stolen from Raj Kumar on the same intervening night i.e. 24/25.9.2011 (in his statement under Section 313 Cr.P.C. the accused Uday Kumar Yadav admits having made a call on 100 number which aspect is also independently established from the report of the Spectrographic Analysis but does not satisfactorily explain how the phone came into his possession). After his arrest the accused got recovered the said mobile set (having IMEI No. A000001D64A4B0) belonging to Raj Kumar which was seized vide memo Ex.PW20/A. ➢ That on the same day i.e. 25.9.2011 at about 9:40 PM the SIM of the father of the victim (No. 9981705439) was used on mobile set having IMEI number 353533027583650 which is Ex.P1 (which mobile set was recovered from the possession of the accused at the time of his arrest by the Anti Snatching Cell). The said call is shown at point X on State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 55 Ex.PW16/C. ➢ That on 26.9.2011 a SIM No. 9818518358 was used in the mobile phone set of the father of the victim bearing IMEI No. 358932034783490 and between 4:19 PM to 4:24 PM calls were made and received on phone number 9525514056 i.e. the number used by the family/ wife of the accused at Muzzafarpur Bihar (establishing that it was the accused Uday Kumar Yadav who was using this set to make calls to his family).
➢ That the SIM No. 9818518358 was earlier used in the mobile set having IMEI number 353533027583650 which is Ex.P1 (which mobile set was recovered from the possession of the accused at the time of his arrest by the Anti Snatching Cell) i.e. the mobile set in which the SIM No. 9981705439 belonging to the father of the victim was used (connecting the accused Uday Kumar Yadav with the theft of mobile of Kamlesh Kumar/ father of the victim indicating that it was Uday Kumar who was using the SIM on different mobile sets).
➢ That from 15.11.2011 to 18.11.2011 SIM of the father of the victim (i.e. 9981705439) was used in mobile set bearing IMEI No. 35954401118140 (belonging to Brijesh Kumar State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 56 which mobile set was given by Brijesh Kumar to his friend Rupesh Kumar for his use and Rupesh had found this SIM lying in the room where he had shifted which room was previously under occupation and use of Uday Kumar Yadav).
(70) In view of the above, I hold that the electronic evidence in the present case has been duly proved and has not been controverted. The Certificates under Section 65 Indian Evidence Act have also been placed on record and duly proved in accordance with law establishing the correctness of this record. The electronic evidence hence completes the sequence of events pointing out towards the guilt of the accused in committing theft of mobile phones of both Raj Kumar and Kamlesh Kumar which mobiles/ SIMs he had intermittently used (as indicated from the Call Detail Records). Forensic Evidence conclusively connects the accused Uday Kumar Yadav with the incident of theft of mobile phones and rape of the toddler Baby 'M':
(71) The case of the prosecution is that the accused Uday Kumar Yadav had committed theft of two mobile phones from the area DSIDC Narela, one belonging to Raj Kumar and the other belonging to Kamlesh Kumar. While committing the theft of the mobile phone from the Jhuggi of Kamlesh Kumar, he saw the child/ State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 57 toddler Baby 'M' sleeping between her parents whom he kidnapped and took to the nearby ground where he committed rape on her and thereafter abandoned her there at the same place. It is further the case of the prosecution that at 3:00:29 hours and 3:04:37 hours PCR calls were made from the No. 9250649240 (belonging to Raj Kumar) which call could not be completed as the battery of the phone got discharged. The caller could only speak a few words which were recorded in the auto recording machine in the Central Control Room.
When the call detail records were collected it was found that the above call was made from SIM No. 9250649240 from the mobile set bearing IMEI No.A000001D64A4B0 (stolen phone set belonging to Raj Kumar) in which the SIM bearing No. 9981705439 (stolen from Kamlesh Kumar father of the child victim) was also used/ inserted in the above mobile set bearing IMEI No. A000001D64A4B0 (belonging to Raj Kumar) indicating that the person who had made the PCR call from the stolen mobile of Raj Kumar was also in possession of the stolen mobile of Kamlesh Kumar and was using his SIM.
(72) The Investigating Officer collected voice recording from the Central Police Control Room in order to conclusively establish the identity of the person who had made this call. The voice sample of Uday Kumar (accused) from whose possession the stolen mobile set of Raj Kumar bearing IMEI No. A000001D64A4B0 was State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 58 recovered, was taken and sent to FSL Rohini for Spectrographic/ Voice Analysis. Sh. V. Laxminarain (PW12) is the forensic expert who has duly proved the report Ex.PW12/A wherein he has concluded that the CD received from the Delhi Police wherein speaker the starts with the word '.....ek admi ka ....' matched with the voice of the accused Uday Kumar Yadav. The witness has further proved that the voice samples taken were subjected to examination by using Phonetic and Linguistic Method and in Spectrographic Analysis and it was confirmed that the voice of the caller matched with that of the accused Uday Kumar Yadav but not the voice of the other suspect. The report Ex.PW12/A has not been disputed by the accused Uday Kumar Yadav since he in his statement under Section 313 Cr.PC has admitted that it was he who made a call to the police at 100 number from the said mobile. Hence, under these circumstances it stands established that it was Uday Kumar Yadav (accused) who made a 100 number call to the police from mobile set having IMEI No. A000001D64A4B0 and SIM No. 9250649240 (stolen mobile of Raj Kumar).
(73) Further, the evidence on record establishes that the exhibits of the child / toddler which were collected by the doctor on 25.9.2011 which included vaginal secretions, vaginal swab, oral swab etc. after which the doctor sealed the same with the seal of SD State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 59 BSA Hospital which were handed over to the Investigating Officer. The MHCM has duly proved that on 25.9.2011 the above exhibits duly sealed with the seal of SD BSA Hospital along with the sample seal of the Hospital were deposited in the Malkhana by the IO along with the copy of the Seizure Memo containing the above details. The witness from the FSL Ms. Shashi Bala Pahuja has also proved that when the samples were received by her they were duly sealed with the above seal of SD (belonging to the Doctor of BSA Hospital). This conclusively establishes that the samples so collected from the child/ toddler at the first instance on 25.9.2011 were intact when they reached the Analyst at FSL Rohini.
(74) The Ld. Defence Counsel has vehemently argued that the Investigating Agency in order to work out a blind case has falsely implicated the accused Uday Kumar Yadav by tampering with the original exhibits of the victim (toddler) and planted the samples at a later stage. This argument on the face of it is highly fallacious and improbable. The exhibits/ samples were taken from the child/ toddler on the very day of her examination i.e. 25.9.2011 and sealed with the seal of SD BSA Hospital which fact has been established from the seizure memo of the exhibits which is Ex.PW23/B. Further, it is evident from the DNA/ Finger Printing Report Ex.PW25/A that the exhibits/ samples were received in the DNA Unit on 21.12.2011 in sealed condition duly sealed with the seal of State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 60 SD (Doctor of BSA Hospital). There is nothing on record to show that the seals had been tampered, rather on the contrary the prosecution has proved that the seals were intact during the period they remained in the possession of MHCM and deposited with the FSL. There is, therefore, no possibility of the samples being tampered or replaced at a later stage as argued by the Ld. Defence Counsel.
(75) Ms. Shashi Bala Pahuja (PW25) has duly proved the DNA Finger Printing Report prepared by Sh. D.S. Paliwal, SSO (Biology), DNA FP Unit, FSL Rohini which is Ex.PW25/A. I may observe that it is evident from the report that the microslides containing white spot of faint smear (vaginal smear of the child/ toddler) was subjected to DNA Finger Printing Analysis. Ms. Shashi Bala has proved the isolation of DNA from the source of Ex.1d1, 1d2 (Microslides having white spot of faint smear) and from source '2' (i.e. blood sample of the accused Uday Kumar Yadav) after which DNA profile were generated for the Ex.1d1, 1d2 and 2 by using AmpFL STR MiniFiler PCR Amplification Kit. She has further proved that the report establishes that the alleles from the source of exhibit '2' (blood sample of the accused Uday Kumar Yadav) were accounted in alleles from the source of Ex. 1d1 and 1d2 (Microslides of smear extracted from vaginal swab/ smear of the State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 61 child/ toddler).
(76) From the DNA Profiling (STR Analysis) performed on the exhibits provided it was concluded that DNA profile generated from the biological stains i.e. seminal stains present on the source of Ex. 1d1 and 1d2 (Microslides of vaginal smear of the child / toddler showing the presence of white faint smear) is similar with DNA profile from the source of Ex. '2' (blood sample of accused Uday Kumar Yadav).
(77) The Ld. Defence Counsel has cross examined Ms. Shashi Bala at length and she in her crossexamination has specifically stated that an accuracy of 99.99 percent could be obtained by using the above technique. The argument put forwarded by the Ld. Defence counsel is that the above results cannot be taken as accurate since the microslides were having only one small white spot of faint smear which is supposed to be dim, faded and weak and hence logically cannot show a 100% accuracy report. He has also argued that there are high chances of tampering with the exhibits and this creates a doubt on the purity of the samples and the result showing a high level of accuracy is doubtful.
(78) I have considered the submissions made before me and at the very outset I may observe that the argument so put forth by the Ld. Counsel is only hypothetical and without any basis and having no connection with the results placed before this Court and duly proved State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 62 by the Analyst. He has not been able to highlight any kind of infirmity in the collection procedure of the samples nor he has been able to prove any kind of tampering at the time of collection of exhibits or when they were sent to the FSL. As already observed herein above, the samples so collected from the child/ toddler at the first instance on 25.9.2011 by the doctors at BSA Hospital i.e. at the time when the identity of the assailant was not even known were intact when they reached the Analyst at FSL Rohini. Where then is the question of the samples being tampered with? (79) Further, the arguments raised by the Ld. Defence Counsel to the effect that there is a doubt on the purity of the samples making the results doubtful, is an argument which is highly unscientific, vague and improbable. The Analyst has duly explained the procedure used for arriving at the results of the analysis and the Genotype data of the exhibits of both the microslides prepared from the smear of the toddler/ child and from the blood sample of the accused which data confirm the conclusions so arrived at by the Analyst.
(80) I may also note that there is independent circumstantial evidence apart from the electronic evidence which confirm the involvement of the accused Uday Kumar Yadav in the ghastly offence against the child (which is independent to the DNA Finger Printing Report). The accused Uday Kumar Yadav himself in his State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 63 statement under Section 313 Cr.P.C. has admitted the following aspects:
➢ His presence in the park/ ground at the time when the offence was committed on the child;
➢ The fact that the child was having injuries on her body; ➢ That he made a telephone call to the police on 100 number from a mobile phone (bearing IMEI No. A000001D64A4B0 and SIM No. 9250649240 which was the stolen mobile phone of Raj Kumar but does not satisfactorily explain as to how it came into his possession).
(81) I may observe that the accused Uday Kumar Yadav having admitted that he made a call to 100 number, he was under an obligation to explain how this mobile from which he had made a call (stolen mobile of Raj Kumar) came into his possession being a fact within his special knowledge (under Section 106 Evidence Act).
According to the accused (in his statement under Section 313 Cr.P.C.), on the date of incident he had consumed liquor and became unconscious and when he regained consciousness and started to go to his house and came out of the park, he heard the noise from behind the bushes. According to the accused, when he went near the bushes he saw one person along with a female child which child was crying State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 64 and when he asked that person what he was doing with the child, he told him that the child had sustained injuries on which he became suspicious and wanted to make a call at 100 number. The accused has further explained that since he did not have any mobile phone he saw that person was having a mobile phone and he took the mobile phone from that person and made a call at 100 number and informed the police after which he went to his house. After giving my due consideration to the above statement made by the accused I hold that the explanation given by him does not cut much ice. It is neither believable nor probable and stands completely demolished by the electronic and the forensic evidence which has come on record as discussed herein above. If it was some other person who had sexually assaulted the child then under these circumstances it would not be possible that the seminal stains matching with the DNA Profile of the accused could have been found in the vaginal smear collected from the victim soon after the assault. Further, the conduct of the accused Uday Kumar Yadav himself is highly dubious and unnatural. Assuming what Uday Kumar Yadav has told to the Court in his statement under Section 313 Cr.P.C. is correct, the questions which arise are Firstly why did the accused Uday Kumar Yadav not raise an alarm or catch hold of the said person when he saw him assaulting the child? Secondly who was the said person and why no description details etc, have been provided? Thirdly what was Uday State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 65 Kumar doing in the park at the time of the incident and in case if he saw that the child had been sexually assaulted then why did he leave the child in such a condition and run away with the mobile phone (stolen from Raj Kumar which was got recovered by him after his arrest)? No answers are forthcoming to the same. I hereby hold that the defence so raised by the accused and his explanation is nothing but a sham and an after thought more so because had it been so that he had informed the police about the incident (as claimed by him in his statement under Section 313 Cr.P.C.) the CD containing the voice recording which was subjected to Spectrographic Analysis would have contained the complete recording of the information so given to the police and not the incomplete words spoken by him i.e. '...ek aadmi ka...'.
(82) Hence in view of the aforesaid electronic record coupled with the DNA Finger Printing Report and the Spectrographic Analysis Report I hold that it is none else but the accused Uday Kumar Yadav who is the author of the offence of rape committed on the child/ toddler Baby 'M' and there is little space for any doubt that any other person could have been the author of the said offence. Sequence of events proved:
(83) The parents of the victim i.e. PW13 Kamlesh Kumar and PW24 Radha have duly proved the sequence of evident from State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 66 kidnapping of the child who was sleeping with them on the intervening night of 24/25.9.2011, who had been kidnapped by somebody and thereafter the child was found in a public park with high fever and bruises on her body and bleeding from her vagina, watery discharge, hymen freshly ruptured and the child was immediately taken to the hospital for medical examination and the stolen phone of the father of the victim was put on tracking. They have further proved that the accused Uday Kumar Yadav was arrested in their presence. The accused has not lead any evidence in his defence to controvert the evidence led by the prosecution. I hereby hold that the prosecution has been able to successfully establish Firstly the charges relating to theft of mobile phones belonging to Raj Kumar and Kamlesh Kumar (which were used by the accused Uday Kumar Yadav as established from the call detail records); Secondly the charges relating to kidnapping of the toddler Baby 'M' and Lastly the charges relating to the aggravated sexual assault and rape committed on the child/ toddler Baby 'M' by the accused Uday Kumar Yadav.
FINAL CONCLUSION:
(84) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 67 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.
(85) Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various prosecution witnesses, medical, forensic, electronic and other circumstantial evidence on record, the following facts stand established:
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 68 ➢ That on the intervening night of 24/25.9.2011 the child/ toddler Baby 'M' aged one year, was sleeping between her father Kamlesh Kumar and mother Radha inside her Jhuggi at G1149, Narela Industrial Area, near Shani Bazar, Narela.
➢ That the accused Uday Kumar Yadav was passing through the area and when he saw the child sleeping between her parents, he picked the child and also picked up the mobile phone of her father lying there and thereafter he took the child in the adjoining park and committed aggravated sexual assault/ rape upon her resulting into only rupturing her hymen and also her anal cavity and thereafter he abandoned the left the child and left her lying at the spot itself.
➢ That in the morning at about 4:00 AM (on 25.9.2011) the parents of the toddler realized that she was missing and searched for her in the neighbourhood but she could not be traced.
➢ That the father of the child/ toddler namely Kamlesh Kumar also found his mobile phone model G5 having SIM No. 9981705439 missing from under his pillow. ➢ That thereafter Kamlesh Kumar made a 100 number call from the mobile phone of a chowkidar.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 69 ➢ That after PCR officials reached the spot the parents of the child/ toddler and the police started to search for the child in the area when they heard the cries of a child coming from the nearby park.
➢ That the father of the child/ toddler, neighbours and the police reached the park/ ground and found the toddler/ child Baby 'M' lying on the grass in a naked condition and blood was oozing out from her private parts.
➢ That the toddler Baby 'M' was immediately rushed to BSA Hospital where medical examination of the toddler/ child 'M' was got conducted which established the commission of rape upon her.
➢ That on medical examination of the toddler/ child found to be running a temperature of 103 degrees, her pulse was 120 p/m and she was having cough and cold. Bruises were present over the lower chest and abdomen of the toddler and her genital parts were found to be dirty and matted with soil with slight swelling and bruising present on the vagina and inner area which was tender to touch with watery discharge present and slight bleeding per vagina. The hymen was found freshly ruptured.
➢ That the mobile phone of Kamlesh Kumar father of the victim bearing SIM No. 9981705439 was put on State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 70 surveillance.
➢ That on the same intervening night i.e. 24/25.9.2011 the mobile phone of another person namely Raj Kumar residing in the same area was also stolen bearing SIM No. 9250649240, IMEI No. A000001D64A4B0 and PCR calls on 100 number had been made from the said mobile phone at 3:00:29 hours and 3:04:37 hours.
➢ That the Call Detail Records of the above mobile bearing SIM No. 9250649240, IMEI No. A000001D64A4B0 were also retrieved and it was found that the person who was in possession of the stolen mobile phone of Kamlesh Kumar was also using the stolen mobile phone of Raj Kumar and calls were made to Muzzafarpur Bihar from both the said mobiles.
➢ That the Call Details Record indicate that it was Uday Kumar Yadav who was using both the stolen mobiles and had made calls to his family at Bihar.
➢ That the Investigating Officer got collected the voice recordings of the caller who had made the 100 number call from the stolen mobile phone of Raj Kumar and the same was sent to the FSL for Spectrographic/ Voice Analysis.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 71 ➢ That after analyzing the call detail records of the stolen mobile of Raj Kumar, Kamlesh Kumar and of the number used by the family of Uday Kumar Yadav at Bihar the Investigating Officer could reach to Uday Kumar Yadav who was thereafter apprehended and arrested.
➢ That the accused Uday Kumar Yadav pursuant to his arrest made a disclosure statement admitting his involvement in the present case and also got recovered the stolen mobile of Raj Kumar bearing IMEI No. A000001D64A4B0.
➢ That the SIM of Kamlesh Kumar bearing No. 9981705439 which was being used in mobile set bearing IMEI No. 35954401118140 was recovered from the Rupesh Kumar who had subsequently shifted in the room which was initially used by Uday Kumar Yadav which SIM he had found in the said room and started using on his own mobile set (belonging to Brijesh Kumar). (86) That the exhibits of the toddler/ child Baby 'M' were sent to the DNA Finger Printing for analysis and the blood sample of the accused was also sent from which the DNA could be extracted. The DNA Finger Printing Report conclusively establishes that the DNA profile generated from the biological stains i.e. seminal stains present State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 72 on the source of microslides of smear present in the vaginal secretion of the child was similar with DNA profile from the source of blood sample of the accused Uday Kumar Yadav. It is this which conclusively connects the accused Uday Kumar Yadav with the commission of the offence of aggravated sexual assault/ rape on the child and nails him down.
(87) There are two stages in criminal prosecution. First obviously is commission of 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 Police Station e on the part of the investigation does not negate the offence.
(88) 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. 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 State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 73 and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(89) I hereby hold that the prosecution has been able to successfully establish the charges relating to theft of mobile phones belonging to Raj Kumar and Kamlesh Kumar (which were used by the accused Uday Kumar Yadav as established from the call detail records); the charges relating to kidnapping of the toddler Baby 'M' and the charges relating to the aggravated sexual assault and rape committed on the child/ toddler Baby 'M' by the accused Uday Kumar Yadav beyond reasonable doubt for the accused is held guilty for the offence under Section 363/380/376 (2) (f) Indian Penal Code and accordingly convicted.
(90) I may observe that this is a unique case where the ghastly offence had been committed on a toddler with no clues whatsoever so much so that even the parents of the toddler were not aware of the author of the crime. Had it not been for the excellent work done by the initial Investigating Officers who had cracked this case on the basis of electronic surveillance and analysis of data and the forensics (Spectrographic Analysis and DNA Finger Printing) came to the aid of the Investigating Agencies as a handy tool. It was only then that the accused Uday Kumar Yadav could be actually cornered and the credit for the same is required to be given to this team of the State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 74 investigators for the efficient use of the aforesaid investigation techniques.
(91) Be listed for arguments on sentence on 9.11.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 07.11.2012 ASJ (NW)II: ROHINI
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 75
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 27/2012
Unique Case ID: 02404R0075942012
State Vs. Uday Kumar Yadav
S/o Sita Ram,
R/o Vill.: Hussepura, Panchrukhia
Police Station : Shebganj
District : Muzzaffarpur, Bihar.
(Convicted)
FIR No. : 477/2011
Police Station : Narela
Under Section : 363/376(2)(f)/380 Indian Penal Code
Date of judgment: 07.11.2012
Arguments concluded on: 9.11.2012/16.11.2012
Date of sentence: 17.11.2012
APPEARANCE:
Present: Sh. P. K. Verma, Addl. Public Prosecutor for the State.
Convict Uday Kumar Yadav in judicial custody with Sh. Rakesh Kumar Sharma Advocate.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 76 ORDER ON SENTENCE:
This is a unique case where the ghastly offence of rape was committed on a toddler aged about one year who was kidnapped while she was sleeping with her parents. There were no clues whatsoever of the offender. This case was cracked on the basis of electronic surveillance and analysis of electronic data and the forensics (Spectrographic Analysis and DNA Finger Printing) came to the aid of the Investigating Agencies as a handy tool.
According to the prosecution is that in the intervening night of 24/25.09.2011 the accused Uday Kumar Yadav had committed theft of two mobile phones from the area DSIDC Narela, one belonging to Raj Kumar and the other belonging to Kamlesh Kumar and while committing the theft of the mobile phone from the Jhuggi of Kamlesh Kumar, he also picked up / kidnapped the child/ toddler Baby 'M' whom he saw sleeping between her parents. He thereafter took the toddler to the nearby park / open ground and committed rape on her and thereafter abandoned her there at the same place. It was also the case of the prosecution that at 3:00:29 hours and 3:04:37 hours PCR calls were made from the No. 9250649240 (belonging to Raj Kumar) which call could not be completed as the battery of the phone got discharged. The caller could only speak a few words which were recorded in the auto recording machine in the Central Control Room. When the call State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 77 detail records were collected it was found that the above call was made from SIM No. 9250649240 from the mobile set bearing IMEI No.A000001D64A4B0 (stolen phone set belonging to Raj Kumar) in which the SIM bearing No. 9981705439 (stolen from Kamlesh Kumar father of the child victim) was also used/ inserted in the above mobile set bearing IMEI No. A000001D64A4B0 (belonging to Raj Kumar) indicating that the person who had made the PCR call from the stolen mobile of Raj Kumar was also in possession of the stolen mobile of Kamlesh Kumar and was using his SIM.
On the basis of the testimonies of the various prosecution witnesses including the parents of the toddler/ child namely Kamlesh Kumar (PW13) and Smt. Radha (PW24); the medical, forensic and electronic evidence on record this Court vide judgment dated 7.11.2011 held the accused Uday Kumar Yadav guilty of the offence under Sections 363, 380 and 376 (2) (f) Indian Penal Code and convicted him accordingly.
This Court vide this judgment observed that the prosecution has been able to successfully establish beyond doubt that on the intervening night of 24/25.9.2011 the child/ toddler Baby 'M' aged one year, was sleeping between her father Kamlesh Kumar and mother Radha inside her Jhuggi at G1149, Narela Industrial Area, near Shani Bazar, Narela; that the accused Uday Kumar Yadav was passing through the area picked up the mobile phone of Kamlesh State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 78 Kumar (father of the victim) and when he saw the child sleeping between her parents he also picked the child / toddler and thereafter he took the child in the adjoining park and committed aggravated sexual assault/ rape upon her resulting into rupturing of her hymen and also her anal cavity and thereafter he abandoned the child and left her lying at the spot itself; that in the early morning at about 4:00 AM (on 25.9.2011) the parents of the toddler realized that she was missing and searched for her in the neighbourhood but she could not be traced; that the father of the child/ toddler namely Kamlesh Kumar also found his mobile phone model G5 having SIM No. 9981705439 missing from under his pillow; thereafter Kamlesh Kumar made a 100 number call from the mobile phone of a chowkidar; that after PCR officials reached the spot the parents of the child/ toddler and the police started to search for the child in the area when they heard the cries of a child coming from the nearby park; that the father of the child/ toddler, neighbours and the police reached the park/ ground and found the toddler/ child Baby 'M' lying on the grass in a naked condition with blood oozing out from her private parts; that the toddler Baby 'M' was immediately rushed to BSA Hospital where medical examination of the toddler/ child 'M' was got conducted which established the commission of rape upon her; that on medical examination of the toddler/ child found to be running a temperature of 103 degrees, her pulse was 120 p/m and she was having cough and State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 79 cold, bruises were present over the lower chest and abdomen of the toddler and her genital parts were found to be dirty and matted with soil with slight swelling and bruising present on the vagina and inner area which was tender to touch with watery discharge present and slight bleeding per vagina and the hymen was found freshly ruptured.
It has also been established that the mobile phone of Kamlesh Kumar father of the victim bearing SIM No. 9981705439 was put on surveillance; that on the same intervening night i.e. 24/25.9.2011 the mobile phone of another person namely Raj Kumar residing in the same area was also stolen bearing SIM No. 9250649240, IMEI No. A000001D64A4B0 and PCR calls on 100 number had been made from the said mobile phone at 3:00:29 hours and 3:04:37 hours; that the Call Detail Records of the above mobile bearing SIM No. 9250649240, IMEI No. A000001D64A4B0 were also retrieved and it was found that the person who was in possession of the stolen mobile phone of Kamlesh Kumar was also using the stolen mobile phone of Raj Kumar and calls were made to Muzzafarpur Bihar from both the said mobiles; that the Call Details Record indicate that it was Uday Kumar Yadav who was using both the stolen mobiles and had made calls to his family at Bihar; that the Investigating Officer got collected the voice recordings of the caller who had made the 100 number call from the stolen mobile phone of Raj Kumar and the same was sent to the FSL for Spectrographic/ State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 80 Voice Analysis; that after analyzing the call detail records of the stolen mobile of Raj Kumar, Kamlesh Kumar and of the number used by the family of Uday Kumar Yadav at Bihar the Investigating Officer could reach to Uday Kumar Yadav who was thereafter apprehended and arrested; that the accused Uday Kumar Yadav pursuant to his arrest made a disclosure statement admitting his involvement in the present case and also got recovered the stolen mobile of Raj Kumar bearing IMEI No. A000001D64A4B0; that the SIM of Kamlesh Kumar bearing No. 9981705439 which was being used in mobile set bearing IMEI No. 35954401118140 was recovered from the Rupesh Kumar who had subsequently shifted in the room which was initially used by Uday Kumar Yadav which SIM he had found in the said room and started using on his own mobile set (belonging to Brijesh Kumar).
Further, the exhibits of the toddler/ child Baby 'M' were sent to the DNA Finger Printing for analysis and the blood sample of the accused was also sent from which the DNA could be extracted. The DNA Finger Printing Report conclusively established that the DNA profile generated from the biological stains i.e. seminal stains present on the source of microslides of smear present in the vaginal secretion of the child was similar with DNA profile from the source of blood sample of the accused Uday Kumar Yadav and it is this which conclusively connected the convict Uday Kumar Yadav with State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 81 the commission of the offence of aggravated sexual assault and also rape (i.e. penetration of human organ) on the child and nailed him down.
I have heard arguments on the point of sentence. The ld. Counsel for the convict has argued that the convict Uday Kumar Yadav is a young boy of 21 years having a family comprising of aged father, mother, wife and one daughter. He is 5th class pass and is a labour by profession and not involved in any other case. It is argued that the convict is the sole bread earner of his family and any harsh view would be detrimental to his entire family and hence the Ld. Counsel prays for leniency.
The Ld. Addl. PP for the State on the other hand has prayed for an exemplary punishment for the convict Uday Kumar Yadav keeping in view the nature of the offence which he has committed on a toddler aged one year. He submits that the convict is not entitled to any leniency.
I have considered the rival contentions. The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:
"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 82 In the case of Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922, the Hon'ble Apex Court observed that: "Rape destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."
It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:
Socioeconomic, status, religion, race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 83 Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. If unreported cases were to be included, the figure would be much high but most of the cases are not reported by the victims because of the various reasons such as family pressure, behaviour of the police, the unreasonably long and unjust process and application of law and resulting consequences thereof.
I may observe that child sexual abuse are dark realities in Indian society like in any other nation. 53 percent of our children are sexually abused, according to a statistic from a survey done by the Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child sexual abuse State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 84 happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly threequarters of upper and middle class Indian girls are abused by a family member often by an uncle, a cousin or an elder brother.
This unfortunate case relates to rape of an innocent toddler aged about one year who was picked up in the middle of the night by the convict who had entered the house of the victim to commit theft of mobile phone. The convict while committing theft of the mobile phone belonging to Kamlesh Kumar (father of victim) even kidnapped the toddler (victim) who was sleeping between her parents, whom he took to a nearby park and raped, and as if this was not enough, he after committing the chilling offence in order to cover up his shameful deeds and to escape his liability, made a call at 100 number but for the fact that luck ran out for him when the battery of the mobile phone from which he was making the call got discharged.
What the convict has done is unimaginable, unthinkable and chilling. This something what even an animal would not do. How can a child so small as one year arouse the lust of another? The State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 85 medical record of the child speaks volumes of the immense trauma, physical pain and agony which the helpless/defenceless toddler must have undergone when the convict went on to commit the ghastly, abominable, inhuman and barbaric act upon her frail body. If she (victim) has survived this ordeal it is by sheer providence. Had it not been for the timely medical attention, she would have certainly died.
Crime against children shakes the conscious of the society and courts of law are required to exercise zero tolerance for such offences. Law is designed to protect the innocent. The convict is a predatory pedophile who is a menace to the society who does not spare even a one year old child. His being at large is hazardous to the community and hence the desirability of keeping him out of circulation in the community. The convict deserves no mercy and is required to be inexorably punished in severest terms and hence there can be no room for any sympathy. I hereby award the following sentences to the convict Uday Kumar Yadav:
1. For the offence under Section 363 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of 7 (Seven) Years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a further period of one month.
2. The convict is sentenced to Rigorous Imprisonment for Life State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 86 with the directions that he shall not be considered for any remissions unless he has undergone an actual sentence of Twenty (20) years and fine to the tune of Rs.50,000/ for the offence under 376 (2) (f) Indian Penal Code. The total fine amount of Rs.50,000/ (Rs. Fifty Thousand), if recovered, shall be paid to the toddler Baby 'M' through her natural guardian under Section 357 Cr.P.C. as compensation. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of five months.
3. For the offence under Section 380 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of 5 (five) Years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a further period of one month.
All the sentences shall run consecutively [first for the offence under Section 380 IPC i.e. for 5 years; thereafter under Section 363 i.e. for 7 years and thereafter for Section 376 (2) (f) IPC i.e. for Life]. It is directed that the convict Uday Kumar Yadav shall not be considered for any remissions unless he has undergone an actual sentence of Twenty (20) years of imprisonment. (Ref : Swami Shradhanand Vs. State of State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 87 Karnataka reported in 2008 (13) SCC 767 and Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.08.2009; Santosh Kumar Satish Bhushan Bariyar Vs. State of Maharashtra decided on 13.05.2009 reported in JT 2009 (7) SC
249. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
Coming now to the aspect of compensation to the victim, I may observe that rape of a child/ toddler not only affects her alone but such an incident leaves a devastating impact on her entire family who equally suffer in silence. The victim at the time of the incident was hardly aged about one year. It is cases like these which the Ministry of Women and Child development needs to target for Restorative Justice so that necessary support is provided to the victim. The Hon'ble Apex Court has time and again observed that the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon'ble Mr. Justice S. Saghir Ahmed and Justice Kuldip Singh (Ref:
Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 88 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
Therefore in order to provide Restorative and Compensatory Justice to the victim (a toddler aged one year) who requires medical attention and rehabilitation, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant a compensation to the tune of Rs.1,00,000/ (Rs. One Lac) to the victim 'M' daughter of Sh. Kamlesh Kumar, R/o Village Shah Nagar, Police Station Shah Nagar, District Panna, Madhya Pradesh which amount shall be used for her welfare and rehabilitation under the supervision of Welfare Officer so nominated by the Government of NCT of Delhi, Department of Women and Child Development [Ref.:
Hari Kishan & State of Haryana Vs. Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 and Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922].
A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi; Chief Secretary, GNCT of Delhi;
Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 89 Development), GNCT of Delhi for information and necessary action under intimation to this Court.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he 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.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 17.11.2012 ASJ (NW)II: ROHINI
State Vs. Uday Kumar Yadav, FIR No. 477/2011, PS Narela Page 90