Delhi District Court
State vs . Raju on 20 October, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 156/2011
Unique Case ID No.: 02404R0227862011
State Vs. Raju
S/o Sh. Nathu
R/o Prem Nagar,
(Near Babu Ki Gumti),
PS Baldeogarh,
Distt. Tikamgarh,
Madhya Pradesh
(Convicted)
FIR No.: 134/11
Police Station: Adarsh Nagar
Under Section: 302/377 Indian Penal Code
Date of committal to sessions Court: 5.11.2011
Date on which orders were reserved: 24.9.2012
Date on which judgment announced: 5.10.2012
JUDGMENT:
(1) As per allegations of the prosecution on or after 23.5.2011 sometime at open field, Jal Board, near Road No.51, Azadpur, Delhi the accused Raju committed carnal intercourse with the child namely Sohan S/o Achchey Lal, aged about 10 years against the nature. It is also alleged that thereafter the accused Raju committed the murder of said child namely Sohan by strangulating him with the Baniyan. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 1 BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 24.5.2011 at about 11:26 AM a telephonic information was received in Police Station Adarsh Nagar though one Sumit Bhardwaj S/o Surajbhan Bhardwaj that near Road No.5 in the open ground of Jal Board, the dead body of a boy aged about 8,10 years was lying. Pursuant to the said information SI Chander Bhan along with Ct. Pradeep and Ct. Pooran mal reached the spot i.e. ground of Delhi Jal Board, near Road No.51, Azadpur, Delhi where they found the dead body of a boy aged about 810 years on the grass ground and one underwear was found with the dead body and one baniyan was found wrapped around the neck of the deceased, right eye was missing and two sleepers were also found at the spot. Efforts were made to got identified the dead body but the same could not be identified. On the basis of the DD No. 10A the rukka was prepared and the present FIR was got registered.
(3) At about 2:453:00 PM one Achchey Lal came to the spot and identified the dead body as that of his son Sohan. Achchey Lal informed the police that one Raju who is the maternal uncle/ mama of his wife, had come to his house in a drunken state on 23.5.2011 and he (Achchey Lal) asked Raju to stay at home while he himself went to purchase ration but when he returned, he did not find his son Sohan and Raju were not found present. Achchey Lal further informed the police that when he inquired in the neighbourhood the Chowkidar Umesh St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 2 Mukhiya told him that he had seen Sohan going along with Raju at about 8:00 - 8:15 PM. Thereafter efforts were made to trace out Raju but he could not be found. On 25.5.2011 the accused Raju was apprehended from his house and during interrogation he admitted his involvement in the present case and also disclosed that he had committed carnal intercourse with the child and after which strangulated him with his own vest (Baniyan). The accused Raju also disclosed that he threw his underwear in the bushes while running away from the spot. The accused was thereafter arrested in this case and he got recovered his underwear which he was wearing at the time of the incident. On 3.6.2011 the postmortem report of the deceased was received wherein the Autopsy Surgeon had confirmed the aspect of carnal intercourse with the child before his death on which the provisions of Section 377 Indian Penal Code were added. After completion of investigations charge sheet was filed against the accused. CHARGE:
(4) Charges under Sections 302/377 Indian Penal Code were settled against the accused Raju to which he pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Eighteen Witnesses as under:
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 3
Public witnesses:
(6) PW7 Sh. Dhani Ram has deposed that on 24.05.2011 he came to know about the murder of his nephew Sohan and on receiving the information he went to BJRM hospital mortuary where he identified the dead body of his nephew Sohan. According to him, at that time he was residing in Delhi on a rent and was informed by Achay Lal that Sohan had been murdered. He has proved that his statement regarding identification of body was recorded which is Ex.PW7/A. He has further deposed that after the postmortem he received the body of Sohan vide receipt Ex.PW7/B. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony has gone uncontroverted.
(7) PW8 Sh. Sumeet Bhardwaj has deposed that on 24.05.2011 he was going with his buffalo for grassing them in the field/ jungle near Delhi Jal Board Office and he let his buffalo free in the grassing in the area. According to the witness, in the bushes he noticed a body of a child aged approximately 1012 years who was wearing blue color shorts and his neck was strangulated by a blue color vest on which he made a call at 100 number. He has deposed that when police came there he proceeded with his buffalo for another place for grassing in the jungle.
(8) In his cross examination, the witness has deposed that there was fencing on the two sides of the ground where the dead body was St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 4 lying and on one side there was nala and other side was open. He has further deposed that he is not aware whether any guard of Delhi Jal board remained there or not. According to him, at about 11:1511:30 AM police reached the spot.
(9) PW9 Sh. Mahesh Chand Aggarwal has deposed that he was in the profession of construction and he had purchased the land at B44, Kewal Park, Azadpur, in the name of his wife Smt. Uma Aggarwal. According to the witness, the construction work was going on the said site and the contract of the construction was given to private thekedar Anwar Ali. He has testified that the labour which was arranged by Anwar Ali used to stay/ live at the said site and Sh. Achay Lal and one Surender who were the masons working at the instructions of contractor Anwar Ali, used to live on the said site. According to the witness, on the night of 23.05.2011 he came to know from his watchman Umesh who was working at his site that the child of Achay Lal was missing on which he (witness) told him (Umesh) to search the missing boy and if he not found informed to the police accordingly. The witness has further deposed that on the next day on 24.05.2011 when he visited the site he came to know that the son of Achay Lal had been murdered and his body was lying in the bushes situated near Delhi Jal Board. He has also deposed that in the late hours of 24.05.2011 one Inspector from Police Station Adarsh Nagar came to his house and recorded his statement and he told to him all the facts. This witness was not cross St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 5 examined by Ld. Counsel for the accused and hence, his testimony has gone uncontroverted.
(10) PW10 Umesh Mukhiya is a witness of last seen and has deposed that he was working as watchman at B44, Kewal Park whose owner was Mahesh Aggarwal who was constructing a building on the said site. He has further stated that prior to deputing him watchman at the site, he was the domestic servant of Mahesh Aggarwal. He has also deposed that on 02.05.2011 Mahesh Aggarwal directed him to guard the site as watchman and the contract of construction was given to private contractor Mr. Anwar Ali who was getting construction on the said site by masons Achay Lal and Surender and both Achay Lal and Surender used to live with their family on the said site. According to the witness, on 23.05.2011 at about 5:30 PM a boy under the influence of liquor came at the site and when he inquired about his identity, the sister in law of Achay Lal told him that the name of visitor is Raju and he was her maternal uncle in relation after which all the labourer, masons went upstairs at the first floor where they used to live and he remained at his duty on the ground. The witness has further testified that at about 8:15 PM he noticed that accused Raju (whom the witness has correctly identified in the Court) was talking with the son of Achay Lal namely Sohan. He has further deposed that when he was cooking food he noticed that accused Raju was going and Sohan was accompanying him and when Raju went upstairs with Yashoda and other labourers Achay St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 6 Lal was not present there. He has testified that at about 9:00 PM when Achay Lal came at the site he inquired about his son, he told him that Sohan had gone with his relative namely Raju but when they did not return Achay Lal and his family members started searching of Sohan and Raju and thinking over the circumstance that his son had gone away with his relative Raju they may be returned some late hours. The witness has also stated that on 24.05.2011 at about 12:00 - 1:00 PM they came to know that a body of a child was lying in the bushes near Delhi Jal Board on which Achay Lal, his family members and others went there and identified the body of Sohan S/o Achay Lal. He has specifically deposed that lastly he had seen Sohan Lal in the company of accused Raju when he was going outside from the said site at about 8:158:30 PM on 23.05.2011. According to the witness, he was interrogated by the police wherein he had stated the aforesaid facts. (11) In his cross examination, the witness has deposed that he had studied upto 5th class and his statement was recorded on 24.05.2011. According to him, B44, Kewal Park i.e. under construction building was constructed upto three stories. He has further deposed that on 23.05.2011 in the evening time labourer went upstairs and he was cooking his food in the parking of said building on the ground floor and family of Achay Lal used to reside at first floor. The witness has also deposed that there was no gate on the ground floor however there was wall on the sides of the parking area. He is not aware of the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 7 measurement of the parking area. The witness has testified that by reading its facial gesture he concluded that Raju was drunk. He has further deposed that he does not remember color of the clothes worn by accused Raju. According to PW10, accused Raju came to the spot on foot and the rickshaw on which accused was sitting was about 1012 steps away from the place where he was cooking his food and about 67 other labourers were working on the site. He has also deposed that he never met Raju prior to the day of the incident and after 23.05.2011 he had not seen the accused. The witness has further deposed that police did not show him any photo of accused during investigations. He has also stated that the deceased Sohan remained in the company of accused for about 15 minutes on rickshaw. According to him, neither Sohan nor Raju came inside the building after he saw them sitting on the rickshaw and even after preparation of his meals he remained on ground floor in parking area. He has further deposed that he was the only person as a guard in the building and there was street light outside the building. He has denied the suggestion that Sohan came back to the building again after 8:15 PM but he could not see him due to his busyness in preparation of meals. PW10 has further deposed that Achchey Lal asked him about his son at about 8:309:00 PM and after that he tried to search his son outside the building. He has denied the suggestion that he has deposed falsely at the instance of the Investigating Officer or that he did not see the deceased in the company of accused lastly at about St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 8 8:158:30 PM. The witness has also denied the suggestion that he was tutored to depose against the accused or that accused had not visited them at the building. He has further denied the suggestion that he identified the accused at the instance of the Investigating Officer. (12) PW13 Achchey Lal Kushwaha is the father of the deceased who has deposed that he used to work at labour and earlier he was residing at H.No. B44, Kewal Park, Azadpur, Delhi. According to the witness, he alongwith his wife and four children were residing at the Kewal Park house and his two cobrothers (Sadhoo) namely Bhura and Surender were also residing with him with their family members. He has deposed that his father in law namely Har Lal Kushwaha was also residing with him. The witness has further deposed that he knew accused Raju who is the maternal uncle of his wife Bhagwati and was residing at Vishnu Garden and used to work as Masson (Mistri) and used to visit their house. According to the witness, on 23.05.2011 at evening time he took his wife Bhaagwati to Parmanand Hospital as she was ill and after one or two hours he returned back when accused Raju met him at his house and was under the influence of liquor. He has testified that he asked accused Raju to take dinner with them and thereafter his sister in law namely Yashoda W/o Surender told him that there was no ration in the house on which he went to the nearby shop to purchase the ration and at about 8.008.30PM he returned back to his house. He has further deposed that accused Raju was not present at his St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 9 house at that time and his son namely Sohan aged about 12 years was also not present at the house and was missing on which they searched him but Sohan could not be traced. According to the witness, thereafter they asked Chowkidar Umesh Mukhia about his son who told him that his son Sohan and accused Raju had gone towards the shop. The witness has testified that they waited for Sohan and Raju upto 9.00 PM and thereafter at about 10.00 PM he along with his cobrother searched both Sohan and Raju in the area upto 12 Midnight but both could not be recovered and they returned back to their house thinking that accused Raju took Sohan with him at his house. PW13 Achchey Lal has further deposed that on the next day morning i.e. on 24.05.2011 they again searched for his son Sohan when they came to know that the dead body of one boy was found in the bushes of ground of Delhi Jal Board at Kewal Park on which he immediately reached there where police was already present and he identified the dead body as of his son Sohan. The witness has also deposed that police made inquiries from him on which he told all the facts to them that his son was missing since last night at about 8.00PM and that he (Sohan) was accompanied with accused Raju at that time. According to him, police seized one pair of plastic chappal from the place near the dead body and kept the same in a cloth pullanda and sealed the same with a seal, but he does not remember about the impression of the seal, after which the pullanda was seized vide memo Ex.PW13/A. He has also deposed that police lifted blood stained earth St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 10 and some earth from the spot and kept the same in a separate small plastic container and sealed the same and both pullandas were seized by the police vide Ex.PW13/B. The witness has proved that the baniyan of deceased Sohan was found around his neck and he was wearing one blue colour underwear and Blue and black marks were found on the front side on the body of deceased Sohan. He has also deposed that thereafter he along with with the police went to Vishnu Garden at the house of accused Raju but he was not present there and thereafter they returned back at his house.
(13) According to the witness Achchey Lal, on the next day i.e. on 25.05.2011 he went to BJRM Hospital where he identified the dead body of his son Ex.PW13/C and after postmortem dead body was handed over to him vide Ex.PW13/D. He has also deposed that on 26.05.2011 he came at the police station Adarsh Nagar at about 2.00 PM and asked about the culprits from the Investigating Officer of this case and thereafter he alongwith the police reached at the Gali no.6, Vishnu Garden at the house of accused Raju where the accused Raju was found sleeping at the third floor of the house. He has testified that he identified the accused Raju before the police on which police interrogated but Raju did not tell anything. However, on sustained interrogation accused Raju confessed that he committed the murder of Sohan after committing sodomy with him. He has proved that thereafter police arrested the accused Raju vide memo Ex.PW13/E and St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 11 his personal search was conducted vide memo Ex.PW13/F after which the disclosure statement of the accused was recorded in detail vide Ex.PW13/G. He has further deposed that Ram Prashad brother of accused Raju was also called there and was informed about the arrest of accused Raju and thereafter accused pointed out the place of incident from where the dead body was recovered vide pointing out memo Ex.PW13/H. He has further deposed that at the instance of accused Raju one underwear of accused Raju was recovered at a distance of 7075 paces towards the south direction from the place of incident and police kept the same in a cloth pullanda and sealed the same and seized the same vide seizure memo Ex.PW13/I and accused Raju is correctly identified by this witness. He has further deposed that police recorded his statement.
(14) With the permission of the Court, the Ld. Addl. PP for the State put leading questions to the witness wherein he has admitted that police put the seal of BKS on the above said pullanda in his presence and further admitted that one police officer SI Chander Bhan handed over one envelop containing some blood gauze sample which was also kept in a cloth pullanda by the Investigating Officer and sealed the same with the seal of BKS and seized vide seizure memo Ex.PW13/J. (15) He has correctly identified the case property i.e. one pair of slippers of plastic as belonging to his son Sohan and recovered from St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 12 the place of incident which are Ex.P1 collectively; one underwear belonging to his son and found with the deceased which is Ex.P2; one baniyan belonging to his son and found wrapped around the neck of the deceased at the spot which is Ex.P3 and one underwear as recovered at the instance of the accused Raju which is Ex.P4.
(16) In his cross examination, the witness has deposed that his statement was recorded by the police at the spot on 24.05.2011 and his second statement was recorded by the police after arrest of the accused. He has further deposed that he was 8th standard passed and he put his signatures on his statement recorded by the police. He has further deposed that he is not aware about the contents of those statement signed by police as it was not in Hindi language. He has also deposed that on 23.5.2011, at about 7:307:45 PM, he found the accused Raju at the ground floor of the house B44, Kewal Park, Azadpur where he was residing at that time at first floor along with his family. According to him, at about 8 PM, he went to purchase ration when accused Raju was present at his house. According to the witness, the accused Raju was alone at that time and his son Sohan was playing just in front of his house. He has testified that Umesh Mukhiya was residing at a distance of seven to eight meters from his house and was the chowkidar of the building. The witness has further deposed that Umesh was sitting on a cot just at the gate of the jhuggi but did not accompany them while they searched his son Sohan and has voluntarily stated that Umesh Mukhiya St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 13 remained at the gate of his Jhuggi and was looking around the area also. He has testified that he had told to the police on 24.5.2011 that accused Raju had taken away his son Sohan on 23.5.2011 at about 88:30 PM which fact was told to him by Umesh Mukhiya. The witness has stated that police did not record statement of Umesh Mukhiya in his presence. He has admitted that till 26.5.2011 he was not aware who killed his son and has deposed that he went to the house of accused Raju only on 26.05.2011 with police after his son was missing. He has testified that accused Raju was having a mobile phone earlier but he does not remember his mobile number and has voluntarily stated that the accused Raju was not having any mobile phone at the time of incident. PW13 has further deposed that he had talked with the accused Raju on his mobile phone six months prior to the incident and did not make any call to accused Raju between 23.05.2011 to 26.05.2011 as he was not having any mobile phone number of Raju. The witness has further deposed that he made inquiries in the neighbourhood but could not get any substantial information regarding his son. He has also deposed that he did not visit the house of the accused on 23.05.2011 or 24.05.2011 and was aware about the residential address of accused on the date of incident. He has denied the suggestion that accused Raju did not visit his house on 23.05.2011 or that chowkidar Umesh Mukhia had not told him that his son Sohan had gone with accused Raju towards the shop. The witness has also denied the suggestion that police tutored him to St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 14 depose against the accused or that accused did not make any disclosure statement in the present case or that accused did not point out any place of incident or that no underwear was recovered at the pointing out of the accused. He has also denied the suggestion that all the documents were prepared in the police station or that he signed the document without knowing the sanctity of the documents.
Medical Witnesses:
(17) PW11 Dr. V.K. Jha has deposed that on 25.05.2011 he was posted at BJRM Hospital and on that day he conducted the postmortem examination on the dead body of Sohan S/o Sh. Achhey Lal, aged about 10 years which body was sent by Insp. Vinod Kumar Singh of Police Station Adarsh Nagar and the dead body was identified.
According to the witness, the deceased was wearing underwear, Baniyan faint blue in colour was tied around the neck and body was smeared with soil and sand. He has testified that built of the body was moderate, rigormortis had passed of and postmortem staining was present at back. The witness has further deposed that on right eye there was irregular lacerated wound and left eye was normal, Conjuctivae was putrefied, Cornea was putrefied, Mouth was partial opened and Tongue was clinched between teeth. According to him, he had observed following external injuries on the dead body of the deceased:
1. Multiple abrasion present on front of chest, front of St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 15 abdomen and left face.
2. Multiple bruises on right side of face.
3. Horizontally placed ligature mark present on front and sides of the neck of length 18 cm and breath 3 cm.
(18) He has proved that on internal examination tissue underneath the ligature mark was bruised and hematoma was present and all viscera were congested and on examination of the rectum there was tear noted on anal canal and bruised at 11 O'clock position. The witness has further deposed that after postmortem examination he opined the cause of death as Asphyxia as a result of ligature strangulation inflicted by other party and ligature mark was anti mortem in nature and sufficient to cause death in ordinary course of nature and time since death was approximately 41 hours. The witness has testified that a total number of inquest papers were nine in number were returned to the Investigating Officer along with the postmortem report. He has further deposed that clothes, blood gauze piece ligature material, anal swab for presence of semen was sealed with the sample seal of mortuary. He has proved his postmortem report which is Ex.PW11/A. (19) After seeing the semen analysis report from Judicial file and after perusal of above said Postmortem Report and anal swab report St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 16 he was of the opinion that the cause of death was Asphyxia as a result of ligature strangulation inflicted by other party and Ligature mark was anti mortem in nature and sufficient to cause death in ordinary course of nature and the postmortem findings was consistent with sodomy before death with deceased.
(20) The witness Dr. V.K. Jha has further deposed that on 26.05.2011 he was CMO on duty and on that day the accused Raju S/o Sh. Nathu, aged about 24 years was examined under his supervision for sexual capability by Junior Resident Dr. Praveen Kumar who referred the patient to surgery resident where Dr. Yatender examined the patient and opined that the accused was capable of doing sexual assault vide detail MLC which is Ex.PW11/B bearing his signatures at point A, bearing signatures of Dr. Parveen Kumar at point B and bearing the signatures of Dr. Yatender at point C which he duly identified having seeing Dr. Parveen Kumar at Dr. Yatender as writing and signing during course of his official duties.
(21) This witness was not crossexamined by the Ld. Defence Counsel for the accused and hence, his testimony has gone uncontroverted.
(22) PW12 Dr. Deepak Chugh has deposed that on 10.06.2011 he was posted at BJRM Hospital as CMO and on that day patient Raju was brought by police for medical examination and blood sample St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 17 collection. He has proved that he examined the patient Raju S/o Sh. Nathu, aged 24 years vide MLC Ex.PW12/A. This witness was not crossexamined by Ld. Defence Counsel for the accused and hence his testimony has gone uncontroverted.
Police/ Official witnesses:
(23) PW1 Ct. Subhash Kumar is a formal witness being the photographer posted at Crime Team and has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 24.05.2011 he was posted at Crime Team, North West Distt., Delhi as photographer and on receipt of message from Duty Officer Control Room, North West, District, he alongwith SI M.D. Meena reached the place of incident i.e. plane area, Jal Board Ground, near Road No. 51, Adarsh Nagar, Delhi. The witness has proved that at instance of SI M.D. Meena and SI Chander Bhan he took several photographs of the scene of crime from different angles which photographs are Ex.PW1/A1 to Ex.PW1/A9 and the negatives of the same are Ex.PW1/B collectively.
(24) In his cross examination, the witness has deposed that he reached at the spot at about 12:35 PM and about eightten police officials and 1214 public persons were gathered there when he reached at the spot.
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 18 (25) PW2 SI M. D. Meena is a formal witness being the Crime Team Incahrge and has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 24.05.2011 on receipt of message from Duty Officer, Control Room, North West Distt. he along with Const. Subhash photographer reached the place of incident i.e. plane area, Jal Board Ground, near Road No. 51, Adarsh Nagar, Delhi. According to the witness, at the instance of SI Chander Bhan he along with his team inspected the scene of crime and Const. Subhash took photographs of the scene of crime from different angles. The witness has proved having handed over the crime team report which is Ex.PW2/A. (26) In his cross examination, the witness has deposed that he reached the spot at about 1:05 PM and remained there till about 1:35 PM. He has testified that about seven to eight police persons and 4045 public persons were also gathered there and has voluntarily stated that they were at some distance from the scene of crime. The witness has also deposed that residential place was about 500600 meters away from the spot of the incident and there was no office of Delhi Jal Board on the spot and has voluntarily stated that it was only a vacate plain ground.
(27) PW3 Ct. Sachin is also a formal witness and has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 24.05.2011 on receipt St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 19 of copy of FIR in covered envelop from duty officer, Police Station Adarsh Nagar, North West Distt., Delhi after which he delivered it to the residences of Hon'ble Ilaqa Magistrate, Joint Commissioner of Police, Deputy Commissioner of Police, Addl. Deputy Commissioner of Police and Assistant Commissioner of Police on private motorcycle bearing No. DL1SS1265.
(28) In his cross examination, the witness has deposed that he was posted at police station Adarsh Nagar since 01.07.2010. According to the witness, the name of illaka magistrate is Sh. Neeraj Gaur and he a delivered copy of FIR at Kamla Nagar to the Ld. Illaka magistrate at his residence.
(29) PW4 HC Radhey Shyam is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 24.05.2011 while he was working as MHC(M) in police station Adarsh Nagar, Delhi he received four sealed parcels sealed with the seal of BKS and three seizure memos from Inspector Binod Kumar Singh on which he made the entries in register No.19 for the same vide Mud No. 3414/11 copy of which is Ex.PW4/A (running into four pages). The witness has also deposed that on 25.05.2011 he received six sealed parcels sealed with the seal of FMT BJRM Hospital Delhi, one sample seal and one seizure memo from Insp. Binod Kumar Singh after which he made entries in register No. 19 for the same vide Mud No. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 20 3415/11 copy of which is Ex.PW4/B. According to him, on 26.05.2011 he received one sealed parcel sealed with the seal of BKS, one sealed parcel sealed with the seal of MS BJRM Hospital one sample seal and two seizure memos from Insp. Binod Kumar Singh after which he made the entries in register No. 19 for the same vide entry No. 3417/11 copy of which is Ex.PW4/C (running into four pages). He has testified that on 10.06.2011 he received one sealed parcel sealed with the seal of MS BJRM, one sample seal and one seizure memo from Insp. Binod Kumar and made the entries in register No.19 for the same vide entry No. 3423/11 copy of which is Ex.PW4/D (running into two pages).
According to him, on 14.06.2011 on the directions of Insp. Binod Kumar Singh, he handed over the 13 sealed parcels and three sample seals of case FIR No. 134/11 under sections 302/377 IPC P.S. Adarsh Nagar to Const. Puran Mal to deposit the same on FSL Rohini vide RC No. 38/21 copy of which is Ex.PW4/E and R C No. 39/21/11 dated 14.06.2011 copy of which is Ex.PW4/F. He has testified that on 14.06.2011 Const. Puran Mal handed over the receipt of FSL vide No. FSL 2011/B3125 Dt. 14.06.2011 after depositing the parcels and sample seals of FIR No. 134/11 after depositing the parcels and sample seals of FIR No. 134/11 u/s 302/377 IPC P.S. Adarsh Nagar, Delhi in FSL Rohini, Delhi. He has proved that the parcels and sample seals remained intact till they were in Mal Khana. The witness has also proved the acknowledgment of FSL, St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 21 copy of which is Ex.PW4/G. (30) In his crossexamination the witness has admitted that one more person i.e. malkhana munshi remained at malkhana with him and the keys of malkhana remains with him always. He has denied the suggestion that if he was on leave or he went to Court in evidence he leave his keys with malkhana munshi. He has denied the suggestion that writing on Ex.PW4/E and Ex.PW4/F were not in his handwriting or that he fabricated the documents at later stage at the instance of the Investigating Officer. He has admitted that he did not take signatures of the depositor of case property in register No. 19. He has denied the suggestion that he did not take signatures as he fabricated the records at the later stage.
(31) PW5 W/ASI Saroj Devi is a formal witness being the Duty Officer and she has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.). She has deposed that on 24.05.2011 she was deputed as Duty Officer in Police Station Adarsh Nagar from 8 AM to 4 PM and on that day at about 11.26 AM a telephone call by Sumit Bhardwaj R/o 21, Kewal Park, Azadpur was received at police station Adarsh Nagar, Delhi and she recorded the same vide DD No.10 A which is Ex.PW5/A. According to her, on that day she received a rukka through Const. Puran written by SI Chander Bhan at about 2.55 PM on the basis of which she got recorded the FIR on computer vide FIR No.134/11 under Section 302 IPC of the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 22 present case copy of which is Ex.PW5/B. She has proved her endorsement on the rukka which is Ex.PW5/C. The witness has deposed that she handed over the copy of FIR and original ruqqa to inspector Binod Kumar Singh for investigation.
(32) In her cross examination, the witness has denied the suggestion that entry made by her is anti time and anti dated. According to her, the Duty Officer Room was on ground floor and computer room was on the first floor of the police station. She has further deposed that she does not know how to operate computer and she does not remember the name of the computer operator working on that day. She has further deposed that she was the only Duty Officer sitting on that day at that particular time and it took about 40 minutes in typing of FIR. She has denied the suggestion that FIR was not typed in her presence or that she was not working as Duty Officer on the day of the incident.
(33) PW6 SI Manohar Lal is a formal witness being the Draftsman and has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 16.06.2011 he was posted in North West Distt as a Draftsman and that on that day on the request of Insp. Binod Kumar Singh he reached the place of occurrence i.e. plane area, Jal Board Ground, near Road No. 51, Adarsh Nagar, Delhi where he prepared the rough site plan of the place of occurrence. He has proved that on St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 23 17.06.2011 he handed over the scaled site plan which is Ex.PW6/A to Insp. Binod Kumar Singh.
(34) In his cross examination, the witness has deposed that he along with Insp. Vinod Kumar Singh reached the spot of occurrence at about 3:00 PM. He has denied the suggestion that he did not visit the spot of occurrence or that he prepared the site plan on the instructions of the investigating officer in a mechanical manner. (35) PW14 Ct. Pradeep has deposed that on 10.06.2011 he was posted at Police Station Adarsh Nagar and on that day he along with Inspector Binod Kumar Singh reached at Rohini Court where the accused Raju was taken in the custody with the permission of the court. He has testified that the accused was taken to BJRM Hospital, Jahangir Puri where he was medically examined there and his blood sample was taken after which doctor handed over blood sample in bottle and blood sample on cotton gauze of the accused Raju in sealed condition with the seal of MS BJRM H J.PURI DELHI with the sample seal and Inspector Binod Kumar Singh seized the same vide seizure memo which is Ex.PW14/A after which accused Raju was produced before the court and was sent to Judicial Custody. He has correctly identified accused Raju. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony has gone uncontroverted. \ (36) PW15 Ct. Puran Mal has deposed that on 24.05.2011 he was posted at Police Station Adarsh Nagar and on that day at about St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 24 11.30AM after receiving the DD No.10A he alongwith SI Chander Bhan and Ct. Pradeep reached at Delhi Jal Board Ground near Red Light Road No.51, Azadpur, Delhi where they saw dead body of a boy aged about eight to ten years old in the bushes of the ground and a blue colour underwear and one blue colour baniyan wrapped around the neck of the deceased. He has further deposed that SI Chander Bhan called the Crime Team officials and photographer and made announcements for the identification of the dead body in the area but no eye witness was found there and the dead body was not identified. The witness has proved that SI Chander Bhan prepared the rukka on DD No.10/A and thereafter he (witness) went to Police Station Adarsh Nagar for the registration of FIR along with rukka at about 2.40 PM. He has further deposed that he reached the Police Station and FIR was got registered after which copy of the FIR and rukka were handed over to Inspector Binod Kumar Singh for further investigations and he alongwith Inspector Binod Kumar Singh reached at the spot. The witness has testified that SI Chander Bhan handed over one envelop containing blood in cotton gauze with blotting papers to the Investigating Officer who kept the same in a cloth pullanda sealed with the seal of BKS and seized the same vide memo Ex.PW13/J. He has further deposed that two plastic slippers were recovered near the dead body and the same was also sealed in a cloth pullanda with the seal of BKS and seized vide seizure memo Ex.PW13/A. The witness has proved that blood stained St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 25 earth and earth sample were also lifted by the Investigating Officer who had kept the same in a separate small plastic container and sealed with the seal of BKS and seized vide Ex.PW13/B and Achchey Lal identified the dead body of the deceased as that of his son. (37) The witness has also deposed that on 25.05.2011 he along with Inspector Binod Kumar Singh reached BJRM Hospital where Ct. Pradeep was already present with the dead body of Sohan and the postmortem was conducted and after which the dead body was handed over to Achchey Lal. According to him, the doctor handed over six pullandas containing the clothes, blood samples and other exhibits of the deceased in sealed condition with the seal of BJRM Hospital with a sample seal to him which he in turn handed over to the Investigating Officer who seized the same vide memo Ex.PW15/A. He has testified that on 14.06.2011 MHC (M) HC Radhey Shyam handed over eight pullandas in sealed condition with a sample seal vide RC No.38/21/11 and 39/21/11 to him to be deposited at the FSL, Rohini Delhi after which he deposited the same and handed over the receipt of acknowledgment and RC to the MHC(M) Radhey Shyam. He has proved that the seal was intact and the case property was not tampered while they remained in his custody. He has also proved the copy of the RC which are Ex.PW4/E and Ex.PW4/F and the copy of the acknowledgment which is Ex.PW4/G. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 26 (38) He has identified the case property i.e. one pair of slippers of plastic which are Ex.P1 collectively; one underwear Ex.P2; one baniyan which is Ex.P3; one plastic container with blood stained earth which is Ex.P5; one plastic container with earth which is Ex.P6 and one envelop with gauze cloth piece having light brown stains wrapped in a paper which is Ex.P7.
(39) In his cross examination, the witness has deposed that they reached the spot by 11.3011.45AM and Achchey Lal reached at the spot at about 3.003.30PM but he is not aware as to who called Achchey Lal and states that when he reached the spot after registration of FIR Achchey Lal was already present there. He has deposed that dead body was not got identified when he went from the spot for registration of the FIR and Achchey Lal was not called in his presence. The witness has also deposed that SI Chander Bhan did not call Achchey Lal before he went from the spot for registration of FIR. According to the witness, he remained at the spot till about 4:30 PM on 24.05.2011 and Achchey Lal was present at the spot when he left the spot finally on 24.05.2011 at about 4:30 PM. He has further deposed that the Investigating Officer prepared the seizure memos in his presence at the spot before he left the spot. He has deposed that he is not aware if Achchey Lal gave information about the culprits to the Investigating Officer nor does he recollect if statement of Achchey Lal was recorded by the Investigating Officer at the spot. He has denied the suggestion that he did not join the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 27 investigations with the Investigating Officer or that he put his signatures on the documents at the police station at the instance of the Investigating Officer. The witness has also denied the suggestion that nothing was seized in his presence from the spot. According to him, there was no clue about the culprit till he left the spot and has voluntarily deposed that the Investigating Officer was collecting information about the culprit in the area. He has denied the suggestion that he has deposed falsely at the instance of the Investigating Officer. (40) PW16 SI Chander Bhan has deposed that on 24.05.2011 he was posted at Police Station Adarsh Nagar and on that day after receiving of DD No. 10A at about 11.26AM which is Ex.PW5/A, he along with Ct. Pradeep and Ct. Puran reached the spot i.e. ground of Delhi Jal Board, Near Road no.51, Azadpur Delhi. He has further deposed that he found a dead body of a boy aged about eight to ten years on the grass of the ground and one underwear was with the dead body, one baniyan was found wrapped around the neck of the dead body and right eye was missing which appeared to be eaten by some animal and two slippers were also found at the spot. According to the witness, he tried his best to identify the dead body and made announcement in the area but the dead body could not be identified. He has testified that he called the crime team officers and the photographer took photographs and crime team incharge prepared his report which is Ex.PW2/A. He has proved having prepared the rukka which is St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 28 Ex.PW16/A after observing all the facts on Ex.PW10/A. The witness has also deposed that Ct. Puran was sent to police station alongwith rukka for registration of FIR and meanwhile Achchey Lal came at the spot about 2.453.00PM and identified the dead body of his son namely Sohan. The witness has also proved that in the meanwhile FSL team from FSL Rohini reached the spot and they also inspected the site and FSL Official Smt. Poonam lifted blood in a cotton gauze from the spot and kept the same in a blotting paper and handed over the same to him in an envelop. According to the witness, after some time Inspector Binod Kumar Singh came at the spot being the Investigating Officer of the case along with Ct. Puran. He has testified that he handed over the envelop containing blood in cotton gauze with blotting paper to Inspector Binod Kumar Singh who kept the same in a cloth pullanda and sealed the same with the seal of BKS and seized it vide seizure memo Ex.PW13/J. The witness has also stated that Inspector B.K.Singh seized the pair of slippers from the spot and sealed the same with the seal of BKS and seized the same vide memo Ex.PW13/K; that Inspector B K Singh also lifted blood stained earth and earth control from the spot and kept the same in a separate plastic containers and sealed with the seal of BKS and seized the same vide seizure memo Ex.PW13/B. He has further deposed that Inspector B K Singh prepared the site plan at his instance and recorded statements of the witnesses. According to the witness, dead body was sent to BJRM Hospital St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 29 through Ct. Pradeep vide his application Ex.PW16/B. (41) This witness has identified the case property i.e. one pair of slippers of plastic which is Ex.P1 collectively; one underwear which is Ex.P2; one baniyan which is Ex.P3; one plastic container with blood stained earth which is Ex.P5; one plastic container with earth which is Ex.P6 and one envelop with gauze cloth piece having light brown stains wrapped in a paper which is Ex.P7.
(42) In his cross examination, the witness has deposed that he reached the spot at about 11:3011:35 AM and Acchay Lal himself came to the spot at about 2:453 PM. According to the witness, when Acchay Lal came to the spot, he and Ct. Pardeep were present there. He has further deposed that there were some public persons available at the spot at the time of his arrival. The witness has testified that the statement of Acchay Lal was recorded at about 5 PM by Insp. Binod Kumar in his presence and no other family member from the family of Acchay Lal was interrogated till 5 PM. He does not remember if any reference with regard to one Umesh Mukhiya came during the interrogation on 24.05.2011 in his presence or not. He has also deposed that Acchay Lal did not tell him anything about Umesh Mukhiya and has voluntarily stated that Achchey Lal was weeping at that time and was not in a position to say anything. The witness has further deposed that it was very difficult for them to control Achchey Lal from his St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 30 condition. According to him, he alone left the spot at about 7 PM and team of FSL came to the spot after 3 PM. The witness has testified that Ct. Puran left the spot at about 2:40 PM and came back along with Insp. Vinod Kumar at about 4 PM. He has denied the suggestion that statement of Acchay Lal was not recorded in his presence or that Acchay Lal had not given any statement on 24.05.2011. (43) PW17 SI Shri Bhagwan has deposed that on 26.05.2011 he was posted at Police Adarsh Nagar and on that day he joined the investigations of this case with Inspector Binod Kumar Singh, Ct. Jitender, SI Chander Bhan, Ct. Krishan Gopal and Achchey Lal and thereafter at the instance of Achchey Lal they reached at Gali No.6, Vishnu Garden at the house of accused Raju where the accused Raju was found sleeping at the third floor of the house and Achchey Lal identified accused Raju before them. He has further deposed that the Investigating Officer interrogated the accused Raju but he did not tell anything, however, on sustained interrogation the accused Raju confessed that he committed the murder of Sohan after committing Sodomy with him. He has proved that thereafter the Investigating Officer arrested the accused Raju vide memo Ex.PW13/E and his personal search was taken vide memo Ex.PW13/F. He has further deposed that the Investigating Officer recorded his disclosure statement in detail vide memo Ex.PW13/G. The witness has also deposed that Ram Prashad brother of accused Raju was also called there who was St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 31 informed about the arrest of accused Raju and thereafter accused pointed out the place of incident from where the dead body was recovered and pointing out memo was prepared vide memo Ex.PW13/H. According to him, at the instance of accused Raju one underwear of accused Raju was recovered at a distance of 7075 paces towards the south direction from the place of incident and the Investigating Officer kept the same in a cloth pullanda and sealed the same and seized the same vide seizure memo Ex.PW13/I. The witness has correctly identified the accused Raju and the case property i.e. one underwear got recovered by the accused Raju which is Ex.P4. (44) In his cross examination, the witness has deposed that he joined the investigations on 26.05.2011 from the police station itself and Achhay Lal joined them from the gate of police station and they left the police station at about 2:40 PM in a private car i.e. TATA Indica belonging to the Investigating Officer. According to the witness they reached gali No. 6, Vishnu Garden at about 3:30 PM and the accused was found at the third floor of under construction building. He has deposed that there may be four - five rooms on the third floor of the said building but he is not aware if any other public person available in that building on the ground floor was asked by the Investigating Officer to join the investigations or not. According to the witness, they remained in that building till 6:00 PM and intimation regarding arrest of accused was given to the brother of the accused namely Ram Parshad St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 32 through telephone who came to the spot at about 44:15 PM. He has further deposed that in the presence of said Ram Parshad papers of arrest of accused, personal search memo, disclosure statement were recorded but he is not aware if Ram Parshad was made a witness to any of the document prepared in his presence. He has also deposed that Ram Parshad did not accompany them to the place of pointing out and they proceeded towards the place of pointing out in same Indica car. He has further deposed that the place of pointing out is about eight to ten kilometers from the place of arrest of accused. The witness has further deposed that it took them around 4045 minutes in reaching the place of pointing out where they remained for about 1½ 2 hours. He has admitted that when they reached the spot of pointing out there was darkness and that at the spot of pointing out there was no street light and has voluntarily stated that they were having search lights with them. The witness has also deposed that pointing out memo was prepared by the Investigating Officer at the spot itself in search light and when he signed the pointing out memo, signatures of only accused Raju was appended on it. He has testified that underwear recovered from the spot was lying in the south side of the place of pointing out. He has denied the suggestion that he did not join the investigations in the present case or that he had signed all the documents while sitting in the police station. He has also denied the suggestion that accused did not give any disclosure statement and that accused did not point out any place of St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 33 occurrence or that no underwear was recovered at the instance of the accused.
(45) PW18 Inspector Binod Kumar Singh is the Investigating Officer of the present case and has deposed that on 24.05.2011 he was posted at Police Station Adarsh Nagar as Inspector (investigations) and after registration of FIR No. 134/11 investigations of this case was marked to him and Duty Officer handed over DD No. 10A Ex.PW5/A, original Rukka Ex.PW16/A and copy of the FIR to him for further investigation on which he alongwith Ct. Puran reached the place of incident at Delhi Jal Board Ground near road no.51, Azadpur, Delhi where SI Chander Bhan met him. He has further deposed that he found the dead body of a boy aged about 810 years on the grass of the ground and one underwear was with the dead body, one baniyan was found wrapped around the neck of the dead body and right eye was missing which appeared to be eaten by some animal and two slippers were also found at the spot and Achchey Lal father of deceased was also present. He has also deposed that SI Chander Bhan handed over the envelop containing blood in cotton gauze with blotting paper to him and he kept the same in a cloth pullanda and sealed the same with the seal of BKS and seized vide seizure memo Ex.PW13/J. The witness has proved having seized the pair of slippers from the spot vide memo Ex.PW13/K after sealing the same with the seal of BKS; having lifted blood stained St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 34 earth and earth control from the spot and kept the same in a separate plastic containers and sealed with the seal of BKS and seized the same vide seizure memo Ex.PW13/B and having prepared the site plan Ex.PW18/A at the instance of SI Chander Bhan. He has further deposed that he recorded statements of witness and dead body was sent to BJRM Hospital through Ct. Pradeep. The witness has further deposed that he searched the accused Raju and he alongwith Achchey Lal reached the house of accused Raju at Vishnu Garden but he was not present at his house after which he reached at the house of Achchey Lal and recorded statement of Achchey Lal, Umesh Mukhia, Sumit Bharadwaj and Mahesh Chandra Aggarwal and thereafter he returned to the police station and deposited the seized articles in the Malkhana. According to him, on the next day on 25.05.2011 he went to BJRM Hospital and recorded statement of Achchey Lal vide Ex.PW13/C and Dhani Ram Ex.PW7/A about the identification of the dead body. He has proved having prepared the brief facts vide Ex.PW18/B; having filled the inquest form vide Ex.PW18/C and after postmortem he handed over the dead body of Sohan to Achchey Lal vide Ex.PW13/D. The witness has testified that after postmortem Ct. Puran handed over six pullandas in sealed condition with the seal of BJRM Hospital with the sample seal to him and he seized the same vide seizure memo Ex.PW15/A and he recorded statements of witnesses and deposited the seized articles in the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 35 Malkhana. He has also deposed that on 26.05.2011 Achchey Lal came at the police station and he (Inspector B.K. Singh) joined him (Achchey Lal) in the investigations and also included SI Shri Bhagwan and Ct. Jitender, SI Chander Bhan and Ct. Krishan Gopal and thereafter at the instance of the Achchey Lal they reached at H.No. 221/66A, Gali No.6, Vishnu Garden, Khyala Delhi at a under construction house. The witness has testified that the accused Raju was found sleeping at the third floor of the house and Achchey Lal identified accused Raju before them after which he interrogated the accused accused Raju but he did not tell him anything and on sustained interrogation accused Raju confessed that he committed the murder of Sohan after committing Sodomy with him. He has proved having arrested the accused Raju vide arrest memo Ex.PW13/E and his personal search was taken vide memo Ex.PW13/F after which he recorded his disclosure statement in detail vide Ex.PW13/G. The witness has also deposed that Ram Prashad brother of accused Raju was also called there and was informed about the arrest of accused Raju and thereafter he (Ram Prashad) put his signature on the arrest memo Ex.PW13/E at point F. The Investigating Officer has further deposed that thereafter the accused pointed out the place of incident from where the dead body was recovered vide pointing out memo which is Ex.PW13/H and at the instance of accused Raju one underwear of accused Raju was recovered at a distance of 7075 paces St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 36 towards the south direction from the place of incident. He has deposed that he kept the same in a cloth pullanda and sealed the same with seal of BKS and seized the same vide seizure memo Ex.PW13/I. He has proved having recorded the statements of witnesses and he returned back to the police station and deposited the seized articles in the Malkhana of the police Station. He has testified that thereafter accused Raju was sent to BJRM Hospital with Ct. Jitender for medical examination and after some time Ct. Jitender returned back with accused Raju and handed over the MLC and accused Raju to him. According to the witness Ct. Jitender also handed over one sample of the accused in sealed condition with the seal of BJRM Hospital with sample seal to him which he seized vide seizure memo Ex.PW18/E. He has proved having deposited the seized articles in the Malkhana and recorded statements of the witnesses and collected postmortem reports. He has further deposed that on 10.06.2011 he alongwith Ct. Pradeep reached at Rohini Courts and accused Raju was taken into custody with the permission of the Court on his application Ex.PW18/F and was taken to BJRM Hospital and after medical examination he (witness) collected the MLC of the accused. According to this witness, doctor handed over blood sample in bottle and blood sample on cotton gauze in sealed condition with the seal of MS BJRM H J.PURI, DELHI with one sample seal to him and seized the same vide seizure memo Ex.PW14/A and deposited the same in the Malkhana. The witness has testified that St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 37 on 14.06.2011 exhibits of this case were sent to FSL Rohini through Ct. Puran and on 16.06.2011 scaled site plan was got prepared through SI Manohar Lal. He has also deposed that during his investigations he collected photographs and crime scene report Ex.PW18/G of FSL Officials. He has further deposed that he recorded statements of the witnesses during his investigation and after completion of the investigation he submitted the charge sheet against the accused Raju. (46) The witness has further proved that he collected the FSL results i.e. biological report Ex.PW18/H (running into three pages) and serological report Ex.PW18/I with forwarding letter Ex.PW18/J after which he submitted the supplementary charge sheet against the accused Raju. He has also deposed that he collected the FSL examination report Ex.PW18/K (running into two pages) and submitted the supplementary charge sheet against the accused Raju.
(47) He has correctly identified the accused Raju in the Court and also identified the case property i.e. one pair of slippers of plastic which are Ex.P1 collectively; one underwear Ex.P2; one baniyan Ex.P3; one underwear Ex.P4; one plastic container with blood stained earth which is Ex.P5; one plastic container with earth which is Ex.P6 and one envelop with gauze cotton piece having light brown stains wrapped in a paper which is Ex.P7.
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 38 (48) In his crossexamination, the witness deposed that on 24.05.2011 he reached at the spot at about 4.004.30PM and SI Chander Bhan and Achchey Lal met him at the spot and Ct. Pradeep also present at the spot. He has further deposed that he alongwith Achchey Lal and Ct. Puran left the spot at about 5.005.15 PM in search of the accused Raju at Vishnu Garden whereas SI Chander Bhan with Ct. Pradeep was present at the spot and at Vishnu Garden they searched the accused in one three storied under construction building but could not found the accused. The witness has also deposed that no one was available at that time in the said building and Achchey Lal did not give any telephone number of accused Raju. According to the witness they remained at Vishnu Garden till 6.006.30 PM and thereafter they visited B44, Kewal Park, Azadpur, Delhi and reached there at about 7.00.715PM. The witness has also deposed that the place of recovery of dead body is about threefour kilometers from B44, Kewal Park, Azadpur, Delhi. He has admitted that Shiv Mandir is situated between place of incident and the house of the victim and that he did not examine Pujari of the Shiv Mandir and chowkidar of the Delhi Jal Board office. He has testified that he tried to examine the neighbours of the house of the accused but it was an underconstruction house and no neighbour was found there. He has also deposed that other labours were also not found in the house from where the accused had been arrested and that accused Raju pointed out the spot of incident in the evening time of 26.5.2011. He has St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 39 also deposed that there was street light on the main road nor there was any street light at the place of incident. He has also deposed that the ground from where the dead body was recovered was covered from one side with the wall of Delhi Jal Board office and the ground was open from three sides. According to the witness, the ground was a big one and the main road no. 51 is situated at a distance of about 4045 paces from the place of recovery of dead body. He has also deposed that the 80 Feet road towards Jahangir Puri is about 150 yards away from the place of recovery of dead body. He has admitted that there is no source of light on the vacant land. He has stated that the bushes were about five feet in height. He has denied the suggestion that there was no light at the place of incident from the street light situated at main road and that the street lights have been installed at a height. The witness has also denied the suggestion that he did not investigate the case fairly or that the accused Raju has been falsely implicated in this case. He has further denied that he prepared all the documents at the police station or that he obtained the signatures of the witness at the police station. He has further denied the suggestion that accused did not point out the place of incident or that nothing was recovered at the instance of the accused persons. The witness has denied that Umesh Mukhia was tutored to depose against the accused or that accused Raju did not make any disclosure statement.
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 40 STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(49) After completion of prosecution evidence, the statement of the accused Raju was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him, which he has denied. He has admitted that he was under the influence of liquor on 23.5.2011 as he had taken the liquor with his Jija and has stated that he and his Jija had gone to purchase the ration. According to the accused, only his Jija had accompanied him to the shop and the child was not with them and the child was sitting in the rickshaw at the house itself. The accused has stated that he is innocent and has been falsely implicated in the present case. He has admitted that he is known to the complainant being related to him but has denied that he had done anything wrong with the child.
He has further stated that he did not take the child with him on the date of incident. According to the accused, the evidence has been created against him only to falsely implicate him in the present case to salve the incident, as the place had failed to apprehend the actual culprit. The accused has further stated that eh has nothing to do with the alleged incident and has denied having made any disclosure statement or got recovered his underwear. However, the accused has preferred not to lead any evidence in his defence.
FINDINGS:
(50) (51) St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 41 (52) St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 42
Identity of the accused:
(53) In so far as the identity of the accused Raju is concerned there is no dispute. The accused Raju, a resident of Vishnu Garden and used to work as mason, is closely related to the deceased child Sohan being the maternal uncle (Mama) of his mother Bhagwati and used to visit the father of deceased. He has been correctly identified by Achchey Lal Kushwaha (PW13) and Umesh Mukhiya (PW10) as the person with whom he had seen the child. The accused has been named and identified by Achchey Lal Kushwaha (PW13) the father of the deceased child and also by Umesh Mukhiya (PW10) who had last seen the accused with the child Sohan at about 8:008:15 PM and had even inquired about his identity when the sister in law of Achchey Lal Kushwaha told him that he was a visitor and her maternal uncle in relation. In view of the aforesaid, I hereby hold that the identity of the accused Raju stands established.
Medical evidence/ case of death:
(54) Dr. V.K. Jha (PW11) has proved having conducted the postmortem examination on the body of the deceased vide his report Ex.PW11/A. He has proved that the deceased was wearing underwear, Baniyan faint blue in colour was tied around the neck and body was smeared with soil and sand; built of the body was moderate, rigor mortis had passed of and postmortem staining was present at back. He St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 43 has further proved that on right eye there was irregular lacerated wound and left eye was normal, Conjuctivae was putrified, Cornea was putrefied, Mouth was partial opened and Tongue was clinched between teeth. According to him, there were following external injuries on the dead body of the deceased:
1. Multiple abrasion present on front of chest, front of abdomen and left face.
2. Multiple bruises on right side of face.
3. Horizontally placed ligature mark present on front and sides of the neck of length 18 cm and breath 3 cm.
(55) He has further proved that on internal examination tissue underneath the ligature mark was bruised and hematoma was present and all viscera were congested and on examination of the rectum there was tear noted on anal canal and bruised at 11 O'clock position. The witness has also proved that the cause of death was Asphyxia as a result of ligature strangulation inflicted by other party and ligature mark was anti mortem in nature and sufficient to cause death in ordinary course of nature.
(56) Dr. V.K. Jha has also proved that the time of death was approximately 41 hours. Here, I may observe that the postmortem was St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 44 conducted on 25.5.2011 at about 2:00 PM and therefore, under these circumstances, the time of death as opined by the Autopsy Surgeon was approximately 9:00 PM on 23.5.2011.
(57) The above medical evidence which has not been controverted by the accused at all conclusively establishes Firstly the use of force on the child before his death as a result of which on the right eye there was an irregular lacerated wound (as per the Crime Team Report Ex.PW2/A one eye of the child was missing and the photographs placed on record which are Ex._______ show the presence of blood on the ground underneath indicating that the deceased was hit on which blood came out from the right eye); Secondly the sodomization of the child before his death (on examination of rectum there was tear noted on anal canal and bruised at 11 O'clock position) and Lastly the cause of death being compatible to strangulation (tissue underneath the ligature mark was bruised, hematoma was present, mouth was partial opened and Tongue was clinched between teeth).
(58) In view the above, I hereby hold that the medical evidence on record is compatible with the prosecution version. Forensic Evidence:
(59) The FSL Reports which are Ex.PW18/H and Ex.PW18/I have been duly proved by the Investigating Officer PW18 Inspector B.K. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 45 Singh (otherwise admissible in evidence under Section 293 Cr.P.C.) and not disputed by the accused. A perusal of the said reports show that semen stains were found present on the underwear of the accused which he himself got recovered after his arrest as the same which he was wearing at the time of the incident, thereby connecting the accused Raju with the alleged offence.
Ocular Evidence and last Seen:
(60) Ocular evidence/ eye witness count is the best evidence in any case but unfortunately in the present case the entire case of the prosecution based on the last seen evidence and circumstantial evidence.
The case of the prosecution is that the accused Raju is in close relation of the family of the deceased being the maternal uncle (Mama) of Bhagwati the mother of the deceased child. On 23.5.2011 the accused Raju had gone to the house of the deceased where his father Har Lal Kushwaha and two cobrother of Achchey Lal namely Bhura and Surender were also residing. At that time the accused Raju was under
the influence of liquor. It is also the case of the prosecution that Achchey Lal Kushwaha had taken his wife to Parmanand Hospital as she was sick and she he returned, he found the accused Raju under the influence of alcohol. He asked Raju to take dinner with them but his sister in law namely Yashoda told him that there was no ration in the house on which Achchey Lal went to purchase ration from a nearby shop. At about 8:008:30 PM when he returned back, the accused Raju St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 46 was not at home and his son Sohan aged 12 years was also not present there. Thereafter, they searched for the child and was told by chowkidar Umesh Mukhiya (PW10) that his son and the accused had gone towards the shop. Achchay Lal Kushwaha thereafter waited for Sohan and Raju uptill 9:00 - 10:00 PM nut thereafter he and his cobrothers went in search of Sohan till midnight and thereafter returned home thinking that since the child Sohan was with Raju they would return at anytime. On the next day morning i.e. 24.5.2011 they again searched for Sohan but later came to know that a dead body of a boy was found in the bushes of the ground of Delhi Jal Board at Kewal Park on which Achchey Lal immediately went there and identified the dead body as of his son Sohan. Umesh Mukhiya (PW10) has corroborated the testimony of Achchey Lal to the extent that he had seen the child Sohan and the accused Raju going together at about 8:158:30 PM. (61) Coming first to the testimony of the father of the child namely Achchey Lal Kushwaha (PW13), the relevant portion of the same is as under:
"......Earlier I was residing at H.No. B44, Kewal Park, Azadpur, Delhi. I alongwith my wife and four children were residing at the Kewal Park house and my two cobrothers (Sadhoo) namely Bhura and Surender were also residing with me with their family members. My father in law namely Har Lal Kushwaha was also residing with me. I used to work as labour. I know accused Raju who is maternal uncle of my wife Bhagwati St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 47 and he was residing at Vishnu Garden and used to work as Masson (Mistri) and used to visit our house.
On 23.05.2011 at evening time I took my wife Bhaagwati to Parmanand Hospital as she was ill and after one or two hours I returned back and accused Raju met me at my house and he was under the influence of liquor. I asked accused Raju to take dinner with us . Thereafter my sister in law namely Yashoda W/o Surender told me that there was no ration in the house. Thereafter I went to the nearby shop to purchase the ration and at about 8.008.30PM I returned back to my house. Accused Raju was not present at my house at that time. My son namely Sohan aged about 12 years was also not present at the house at that time and he was missing and we searched him but he could not be traced.
Thereafter we asked Chowkidar Umesh Mukhia about my son who told me that my son Sohan and accused Raju had gone towards the shop. We waited for Sohan and Raju upto 9.00PM and thereafter at about 10.00PM I alongwith my co brother searched both Sohan and Raju in the area upto 12 Midnight but both could not be recovered and we returned back to our house thinking that accused Raju took Sohan with him at his house.
On the next morning i.e. on 24.05.2011 we again searched for my son Sohan then we came to know that the dead body of one boy was found in the bushes of ground of Delhi Jal Board at Kewal Park. I immediately reached there. Police was already present there. I identify the dead body as St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 48 of my son Sohan. Police made inquiries from me and I told all the facts to them that my son was missing since last night at about 8.00PM and he was accompanied with accused Raju at that time ....."
(62) Coming now to the testimony of Umesh Mukhiya (PW10) who is an independent witness having no relations with the accused or with the family of the deceased and was the Chowkidar/ watchman at B44, Kewal Park in which the construction was going on where the family of the deceased was residing. The relevant portion of his testimony is as under:
".......I was working as watchman at B44, Kewal Park. The owner of the said site is Mahesh Aggarwal who is constructing a building on the said site. Prior to deputing me watchman at the site, I was domestic servant of Mahesh Aggarwal and when Mahesh Aggarwal started constructions on the said site. On 02.05.2011 Mahesh Aggarwal directed me to guard the site as watchman. The contract of construction was given to private contractor Mr. Anwar Ali. Anwar Ali was getting construction on the said site by masons Achay Lal and Surender. Achay Lal and Surender used to live with their family on the said site.
On 23.05.2011 at about 5:30 PM a boy under the influence of liquor came at the site, when I inquired about his identity the sister in law of Achay Lal told me that the name of visitor is Raju and he is her maternal uncle in relation. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 49 Thereafter all the labourer, masons went upstairs at the first floor where they used to live and I remained at my duty on the ground. At about 8:15 PM I noticed that accused Raju present in the court today (correctly identified by the witness) was talking with the son of Achay Lal, namely Sohan.
When I was cooking food I noticed that accused Raju was going and Sohan was accompanying him. When Raju went upstairs with Yashoda and other labourers Achay Lal was not present there. At about 9PM when Achay Lal came at the site he inquired about his son, I told him that Sohan had gone with his relative namely Raju but when they did not returned Achay Lal and his family members started searching of Sohan and Raju. Thinking over the circumstance that his son had gone away with his relative Raju they may be returned some late hours.
On 24.05.2011 at about 121PM we came to know that a body of a child lying in the bushes near Delhi Jal Board. Achay Lal, his family members and others went there and they identified the body of Sohan S/o Achay Lal.
Lastly I had seen the Sohan Lal in the company of accused Raju when he was going outside from the said site at about 8:158:30 PM on 23.05.2011. I was interrogated by the police and whatever I stated today I had told the same to the IO......"
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 50
(63) Both these witnesses have been crossexamined at length and it is evident from their crossexamination that the family of the deceased was residing at the construction itself being the labourers and masons. There was no gate on the ground floor but there was wall on the sides of the parking area. Both these witnesses have corroborates each other on the aspect that the accused was drunken/ intoxicated at the time of the incident. In fact Umesh Mukhiya (PW10) has specifically stated that he had seen the accused Raju sitting on a rickshaw which was about 10 to 12 steps away from the place where he was cooking his food. He has also explained that he was never shown the photographs of the accused Raju nor he had even seen him after the incident. Therefore, there is no reason why he would have falsely implicate the accused. He has further explained that the deceased Sohan remained in the company in the accused for about fifteen minutes on rickshaw and neither Sohan nor Raju came inside the building after he saw them sitting on rickshaw. The witness Umesh Mukhiya has also explained that there is sufficient light in the area there being a street light outside the building and has denied the suggestion that he had not seen the accused or anybody being busy in preparation of his meals. (64) Before coming to the merits of the case, I may observe that the 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 51 other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(65) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref:
Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].
(66) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 52 and in what circumstances the victim suffered the death or should own he liability for the homicide....." (67) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities.
The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 53 hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
(68) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(69) Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Raju is trustworthy or not. If yes, the effect thereto.
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 54 (70) I may observe that there is no reason to doubt the version given by Umesh Mukhiya there being no history of animosity between him and the accused Raju nor is this the case of the accused. Umesh Mukhiya was never known to the accused and there was sufficient light in the area and hence the possibility of this being a case of mistaken identity is ruled out. The accused Raju in his statement under Section 313 Cr.P.c. has admitted that he had gone to the house of the deceased on the date of incident but has denied that the child had accompanied him. (Reference be made to question no. 11 of the statement of accused under Section 313 Cr.P.C.). When the statement of Achchey Lal was specifically put to the accused to the extent that after Achchey Lal came back to his house from Parmanand Hospital where he had taken his wife Bhagwati, he found him (accused) under the influence of liquor, the accused Raju as admitted that he was under the influence of liquor and has explained that he had taken the liquor with his Jija on that day. Further, when confronted with the statement of Achchey Lal (PW130 to the extent that since there was no ration in the house therefore he (Achchey Lal) went to nearby shop and at about 8:00 or 8:30 PM when he returned back he found that the accused was not present at his house (Question no. 12 of the statement of accused under Section 313 Cr.P.C.) on which the accused has denied the same and has stated that it was in fact he and his own Jija who had gone to purchase the ration, meaning thereby that he was present in the area at the time of the incident and St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 55 also the aspect that there was no ration in the house on which the same had to be purchase. Also, when confronted with the statement of Achchey Lal that his son Sohan aged 12 years was also not present at his house on which he along with his family members searched for Sohan but he could not traced and thereafter he Achchey Lal asked the Chowkidar Umesh Mukhiya about Sohan who told him that Sohan and Raju had gone towards the shop; the accused Raju denied the said allegation and again stated that only his had accompanied him to the shop but the child was not with them and the child was sitting in the rickshaw at the house itself.
(71) For the sake of convenience the relevant portion of the statement of the accused Raju recorded under Section 313 Cr.P.C. is as under:
Q11: It is in evidence against you that according to PW13 Achchey Lal Kushwaha, on 23.05.2011 at the evening time he took his wife Bhagwati to Sant Parmanand Hospital as she was ill and after one or two hours he returned to his house where you met him and you were under the influence of liquor. What you have to say about it?
Ans: It is correct that I was under the influence of liquor as I had taken liquor with my Jija on that day.
Q12: It is in evidence against you that according to PW13 Achchey Lal Kushwaha, he asked you to take dinner with him and thereafter his sisterin law Yashoda told him (witness) that there was no ration St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 56 in the house and thereafter he (PW13) went to the nearby shop to purchase the ration and at about 8.00 or 8.30 PM he returned back to his house with ration and found that you were not present at his house at that time. What you have to say about it?
Ans: It is incorrect. In fact, it was me and my Jija who had gone to purchase the ration.
Q13: It is in evidence against you that according to PW13 Achchey Lal Kushwaha, his son Sohan aged about 12 years was also not present at his house and he along with his family members searched for him but he could not be traced and thereafter he asked chowkidar Umesh Mukhiya about his son who told him that his son Sohan and you had gone towards the shop. What you have to say about it?
Ans: It is incorrect. Only my Jija had accompanied me to the shop. The child was not with us. The child was sitting in the rickshaw at the house itself. Q14: It is in evidence against you that according to PW13 Achchey Lal Kushwaha, he along with his family members waited for Sohan and youself till 9.00 PM, and thereafter at about 10.00 PM he along with his brothers searched for Sohan and you in the area till 12.00 midnight but both could not be traced and thereafter they returned back to their house thinking that you took Sohan with you at your house.
What you have to say about it?
Ans: It is incorrect. The child Sohan was not with me.
(72) It is evident from the aforesaid that the accused has admitted that he was present in the house; that he was under the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 57 influence of liquor and that the child was sitting on the rickshaw thereby corroborating the testimony of Umesh Mukhiya (PW10) to the extent that he had seen the child sitting on the rickshaw. The only aspect which the accused Raju has denied is that the child had not accompanied him and states that it was his Jijia who had accompanied him. In order to prove his defence, it was necessary for the accused Raju to have produced his Jija who he claimed remained with him, whom he has not produced in the Court. The Jija of the accused being in close relation was the best witness who would have under any circumstances depose in his favour but the accused has failed to produce his Jija in the Court whom he alleged had gone with him for purchase of ration from the shop. It appears that the attempt of the accused is to mislead the Court. The explanation given by the accused is improbable and does not find any corroboration from the material on record. Rather, on the contrary Umesh Mukhiya (PW10) who is truthful and credible witness has specifically pointed out towards the accused as the person who was present with the child and with whom he had seen the deceased child going at about 8:158:30 PM. The time of time as per the postmortem report is around 9:00 PM on 23.5.2011 and the child was last seen alive in the company of the accused at around 8:158:30 PM.
(73) Therefore, in the instant case there is a proximity between the last seen and the time of death of the deceased in as much as the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 58 deceased Sohan died at about 9:00 PM on 23.5.2011 and was last seen in the company of accused Raju at about 8:158:30 PM and the accused has failed to explain when he parted company with the deceased and where. In view of the above, I hereby hold that the fact that the deceased Sohan was last seen alive in the company of the accused Raju is highly determinative of the guilt of the accused. Recovery of the underwear of the accused :
(74) The case of the prosecution is that after the arrest of the accused on 25.5.2011 he during his sustained interrogation admitted his involvement in the commission of the offence of sodomy and thereafter strangulation of the deceased child with his own vest/ Baniyan vide his disclosure statement Ex.PW3/G. Pursuant to the said disclosure the accused not only lead the police to the place where he had sodomized and strangulated the child and pointed out the place where the dead body of the child had been recovered but also lead them to the bushes where he had thrown his own underwear after wiping his private parts with the same after commission of the offence of sodomy and strangulation.
(75) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 59 of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(76) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(77) It further provides five illustrations as to what would constitute a fact which are as under:
(a) That there are certain objects arranged in a certain order in a certain place, is a fact
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 60 (78) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
(79) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)"
and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 61 Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 62 knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(80) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 63 not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 64 case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(81) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 65 The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(82) In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place"
where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 66 statement of the accused would be admissible in evidence......"
(83) Applying these settled principles of law to the facts of the present case, I may observe that the fact that the child had been sodomized and strangulated and the place where the dead body had been found, was already in the knowledge of the Police and hence, under the given circumstances it cannot be held to be incriminating against the accused. However, after fulfilling his carnal lust by sodomizing the child, the accused not only killed the child for the fear of being exposed but thereafter threw his own underwear (which the accused was wearing at the time of the incident) after wiping his private parts, are the facts which were not in the knowledge of anybody including the Police. The recovery memo Ex.PW13/I has been duly proved by Achchey Lal Kushwaha (PW13), SI Sri Bhagwan (PW17) and Inspector B.K. Singh (PW18) which recovery memo also bear the signatures of the accused Raju. The fact that the underwear was got recovered by the accused Raju himself and the FSL report confirms the presence of semen stains on the underwear, is a strong pointer towards the guilt of the accused Raju.
Strangulation material:
(84) The case of the prosecution is that the child had been strangulated with his own Baniyan which was the strangulation St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 67 material. Here, I may observe that the dead body of the child was discovered on 24.5.2011 at 11:26 AM by Sumit Bhardwaj after which information was given to the local police. When police reached the spot they found the dead body of the child and a baniyan was found wrapped around the neck. Immediately Crime Team was called to the spot and the photographs of the scene of crime were taken. The photographs Ex.PW1/A3, Ex.PW1/A6, PW1/A7 and Ex.PW1/A9 show the presence of Baniyan wrapped around the neck of the deceased. The Crime Team Report Ex.PW2/A also reflects the presence of the baniyan around the neck of the deceased and Autopsy Surgeon Dr. V.K. Jha (PW11) has specifically proved that when the body was produced before him, the baniyan was wrapped around the neck which according to him was the strangulation material which acted as a ligature and was the material with which the ligature strangulation had been inflicted by the other party. This testimony of the Autopsy Surgeon has gone totally uncontroverted. The opinion of the autopsy surgeon finds due corroboration from the circumstantial evidence in the form of Crime Team Report and the photographs and also from the oral testimony of PW8 Sumit Bhardwaj who has specifically deposed that the Baniyan was found around the neck of the deceased.
(85) In view of the above, I hereby hold that the prosecution has successfully proved the deceased child Sohan was strangulated with his own Baniyan.
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 68
Apprehension and arrest of the accused:
(86) The case of the prosecution is that the accused Raju had gone to the house of his niece Bhagwati (mother of the child) and was under the influence of liquor at that time. Thereafter, while the father of the child namely Achchey Lal Kushwaha (PW13) went for purchasing the ration, the accused Raju under the influence of alcohol lured the child to the open ground of Delhi Jal Board where he sodomized the child but since the child offered resistance, he thereafter strangulated the child and left the body in the fields/ open ground and thereafter absconded. The deceased child was last seen in the company of the accused Raju at about 8:15 - 8:30 PM on 23.5.2011 and tehreafter the child did not return home on which his parents started searching for him and it was only in the next day morning that some passerbye/ villager who was passing in the area alongwith his cattle who noticed the dead body and immediately informed the police. It is only thereafter that the police made inquiries from the Chowkidar of the building Umesh Mukhiya (PW10) and came to know that the child had been last seen with the accused. Soon thereafter efforts were made by the police to search the accused and even the father of the deceased Achchey Lal Kushwaha (PW13) went along with the police to the house of accused Raju but he was not found present there. On 25.5.2011 the postmortem of the deceased was got conducted and on 26.5.2011 the father of the deceased along with police reached the house of the accused Raju at St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 69 Vishnu Garden where the accused was found sleeping and it was on the identification of Achchey Lal Kushwaha the accused Raju was apprehended. The aspect of arrest of the accused from his residence on 26.5.2011 has been duly proved by the police witnesses i.e. SI Sri Bhagwan (PW17) and Inspector B.K. Singh (PW18) which finds due corroboration from the testimony of Achchey Lal Kushwaha (PW13) the father of the deceased child who had join the police investigations.
(87) Ld. Defence Counsel has vehemently argued that the accused has been falsely implicated and for three days when the police could not locate the real culprit they have in order to work out the present case, falsely implicated the accused Raju. He has submitted that had the accused been guilty he would absconded and would not have been available in his house, which is not the case. Ld. Addl. PP for the State on the other hand has pointed out that it is evident from the case diaries that for the first time police came to know about the child being last seen with the accused Raju on 24.5.2011 itself when the dead body of the child was discovered. He submits that there is no history of dispute or any kind of animosity between the family of the father of the deceased and the independent witness Umesh Mukhiya (PW13) with the accused and there is no reason why they have falsely implicated the accused. He submits that the bare perusal of the case diaries would show that sufficient efforts were made by the police to trace out the accused Raju but he was not found available in his house and it is this St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 70 conduct of the accused which is liable to be read against the accused. (88) I have considered the rival contentions and I find merit in the submissions made by the Ld. Addl. PP. It is strange that the accused being in such close relation with the family of the deceased and has admitted his presence with the family of the deceased on 23.5.2011, would not be available to attend the last rites of the child. The question which troubles the mind of the Court is where was the accused during this period of two days when the family of the deceased child came to know about this tragic incident. Being so closely related he was not were to be found. It is this conduct of the accused which is suspicion and there is no reason for this Court to doubt the version given by the police that they had made efforts on 24.5.2011 and 25.5.2011 to trace the accused. The accused does not dispute that he was arrested on 26.5.2011 and in fact this aspect of his arrest from his house at the instance and pointing out of the father of the deceased child, stands established and proved.
FINAL CONCLUSIONS:
(89) 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 recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 71
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.
(90) Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused Raju stands established. He is the maternal uncle (Mama) of the mother of the child Sohan. From the testimonies of the various prosecution witnesses the following aspects emerge:
➢ That construction work was going on at H.No. B44, Kewal Park, Azadpur, Delhi which contract was given to private thekedar Anwar Ali.
➢ That the labours which was arranged by Anwar Ali used to stay/ live at the said site.
➢ That Achay Lal Kushwaha (father of the deceased) along with his wife and four children were residing at the said St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 72 construction side along with his two cobrothers (Sadhoo) namely Bhura and Surender being the masons/ labours. ➢ That the accused Raju who is the maternal uncle of the wife of Achchey Lal namely Bhagwati, was residing at Vishnu Garden and used to work as Masson (Mistri) and used to visit the house of Achchey Lal Kushwaha.
➢ That on 23.05.2011 at evening time Achchey Lal took his wife Bhaagwati to Parmanand Hospital as she was ill and when he returned back the accused Raju met him at and was under the influence of liquor at that time.
➢ That Achchey Lal asked accused Raju to take dinner with them but his sister in law namely Yashoda W/o Surender told Achchey Lal that there was no ration in the house. ➢ That thereafter Achchey Lal went to the nearby shop to purchase the ration and at about 8.008.30PM he returned back to his house but the accused Raju was not present at my house at that time and his son Sohan aged about 12 years was also not present at the house.
➢ That they searched Sohan but he could not be traced and thereafter they asked Chowkidar Umesh Mukhia about Sohan who told him that Sohan and accused Raju had gone towards the shop.
➢ That on the next morning i.e. on 24.05.2011 Achchey Lal St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 73 and his other relatives again searched for Sohan when they came to know that the dead body of one boy was found in the bushes of ground of Delhi Jal Board at Kewal Park.
➢ That Achchey Lal immediately reached there and identified the dead body as of his son Sohan.
➢ That the deceased child was last seen alive in the company of the accused Raju by the Chowkidar Umesh Mukhiya. ➢ That efforts were being made to trace out the accused Raju but he could not be apprehended and ultimately on 25.5.2011 the accused Raju was apprehended from his house at Vishnu Garden.
➢ That pursuant to his arrest the accused Raju got recovered his underwear which he had thrown in the bushes near the spot of incident after wiping out his private parts after committed the offence of sodomy.
(91) The medical evidence on record establishes Firstly the use of force on the child before his death as a result of which on the right eye there was an irregular lacerated wound; Secondly the sodomization of the child before his death (on examination of rectum there was tear noted on anal canal and bruised at 11 O'clock position) and Lastly the cause of death being compatible to strangulation (tissue underneath the ligature mark was bruised, hematoma was present, mouth was partial opened and Tongue was clinched between teeth).
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 74 (92) Further, the forensic evidence on record shows that semen stains were found present on the underwear of the accused which he himself got recovered after his arrest as the same which he was wearing at the time of the incident, thereby connecting the accused Raju with the alleged offence. There is a proximity between the last seen and the time of death of the deceased in as much as the deceased Sohan died at about 9:00 PM on 23.5.2011 and was last seen in the company of accused Raju at about 8:158:30 PM and the accused has failed to explain when he parted company with the deceased and where.
(93) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (94) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 75 not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical and circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
(95) In view of the aforesaid, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Raju of having committed carnal intercourse with the child Sohan S/o Achchey Lal, aged about 10 years against the nature and of committing the murder of child Sohan by strangulating him with the Baniyan for which he is hereby held guilty of the offence under Section 377 and 302 Indian Penal Code.
(96) Be listed for arguments on sentence on 11.10.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 5.10.2012 ASJII(NW)/ ROHINI St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 76 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 156/2011 Unique Case ID No.: 02404R0227862011 State Vs. Raju S/o Sh. Nathu R/o Prem Nagar, (Near Babu Ki Gumti), PS Baldeogarh, Distt. Tikamgarh, Madhya Pradesh (Convicted) FIR No.: 134/11 Police Station: Adarsh Nagar Under Section: 302/377 Indian Penal Code Date of judgment : 5.10.2012 Arguments concluded on: 18.10.2012 Date of Sentence: 20.10.2012 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Raju in judicial custody with Sh. Deepak Sharma, Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide my detailed judgment dated 5.10.2012 the accused Raju has been held guilty of the offence under Section 377 and Section St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 77 302 Indian Penal Code and accordingly convicted.
As per allegations of the prosecution the child Sohan aged about 10 years was residing with his parents and other family members on the under construction site at H. No. B44, Kewal Park, Azadpur, Delhi. The accused Raju is the maternal grandfather (Nana) of the child being the maternal uncle (Mama) of his mother namely Bhagwati and was a frequent visitor to the family of the child. On 23.5.2011 the accused Raju visited the residence of the deceased child and consumed alcohol along with the maternal grandfather of the child (his own Jija) after which he lured the child and took him to the open fields/ grounds belonging to Jal Board, near Road No.51, Azadpur. It is there that he firstly committed committed carnal intercourse against the order of nature with the child namely Sohan S/o Achchey Lal and thereafter in order to conceal his crime, he in a most brutal manner killed the child Sohan by strangulating him with his own Baniyan. The matter did not end there. The accused thereafter removed his underwear which he was wearing at the time of incident and wiped his penis and threw the same into the bushes in the same ground which he did in order to remove all evidence of his evil act.
On the basis of the testimonies of the various prosecution witnesses particularly the witness Umesh Mukhiya who had last seen the child alive with the accused, the medical, forensic and other circumstantial evidence on record, this Court vide judgment dated St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 78 5.10.2012 observed that the identity of the accused Raju stood established. He is the maternal uncle (Mama) of Bhagwati the mother of the deceased child Sohan (Nana/ maternal grand father in relation). It also stood established that that Acchey Lal is a labour and at the time of the incident he was residing at under construction house at H. No. B44, Kewal Park, Azadpur, Delhi along with his wife, four children, his two cobrothers (Sadhoo) namely Bhura and Surender and his father in law namely Har Lal Kushwaha; that accused Raju a Mason (Mistri) by profession a resident of Vishnu Garden is the maternal uncle/ Mama of the wife of Acchey Lal namely Bhagwati used to frequently visit their house; that on 23.05.2011 at evening time Acchey Lal took his wife Bhagwati to Parmanand Hospital being ill and returned after about one to two hours; that on his return accused Raju met Acchey Lal at his house and at that time Raju was under the influence of liquor and Acchey Lal asked accused Raju to take dinner with them; that Yashoda W/o Surender who is the sister in law of Acchey told him that there was no ration in the house on which Acchey went to the nearby shop to make purchases; that at about 8.008.30 PM when Acchey Lal returned to his house both Raju and his son Sohan aged about 12 years were missing; that Acchey Lal and his family tried to search for the child Sohan but the child could not be traced on which they made inquiries from the Chowkidar/ guard of the building namely Umesh Mukhia about Sohan and it was Umesh Mukhiya who told him that he had seen St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 79 Sohan and Raju going towards the shop; that Acchey Lal and his family waited for Sohan and Raju till 10.00PM and thereafter he alongwith his cobrothers searched for Sohan and Raju in the area till 12 Midnight but could not succeed and thereafter thinking that perhaps Sohan would be with Raju at his house they returned; that on the next morning i.e. on 24.05.2011 Acchey Lal and his family again searched for Sohan when they came to know that the dead body of a male child was found in the bushes of ground of Delhi Jal Board at Kewal Park on which they immediately reached there and found the dead body to be of his son Sohan; that the Chowkidar/ Guard Umesh Mukhiya had lastly seen the deceased child Sohan Lal in the company of accused Raju when he was going outside from the said site at about 8:158:30 PM on 23.05.2011; that efforts were made to trace out the accused Raju but he could not be apprehended and ultimately on 25.5.2011 the accused Raju was apprehended from his house at Vishnu Garden; that pursuant to his arrest and disclosure statement the accused Raju got recovered his underwear which he had thrown in the bushes near the spot of incident after wiping his penis with the same after sodomizing the child.
It also stands established that there was a proximity between the last seen alive in the company of the accused Raju and the time of death of the deceased child Sohan in as much as according to the postmortem report the deceased Sohan had expired at around 9:00 PM on 23.5.2011. Before his death the child was last seen in the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 80 company of accused Raju at about 8:158:30 PM and the accused Raju has failed to explain when he parted company with the deceased and where (being a special circumstance which would have been in the knowledge of the accused under Section 106 of the Evidence Act). The medical evidence established the aspect of use of force on the child before his death as a result of which there was an irregular lacerated wound on the right eye of the deceased and the Autopsy Surgeon does not say that the said injury was caused after his death (i.e. postmortem injury); the aspect of sodomization of the child before his death (on examination of rectum there was tear noted on anal canal and bruised at 11 O'clock position) and the cause of death was strangulation (tissue underneath the ligature mark was bruised, hematoma was present, mouth was partial opened and Tongue was clinched between teeth). Further, the forensic evidence established that semen stains were found present on the underwear of the accused which he himself got recovered after his arrest as the same which he was wearing at the time of the incident, thereby connecting the accused Raju with the alleged offence. In view of the above, the accused Raju has been held guilty of the offence under Section 302 and Section 377 Indian Penal Code.
Heard arguments on the point of sentence. The convict Raju is stated to be a young boy of 25 years having a family comprising of aged widow mother, three elder brothers (unmarried) and four married sisters. He is totally illiterate and is a Mason by profession. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 81 Ld. Amicus Curiae appearing on behalf of the convict has vehemently argued that the convict is a young boy having no previous criminal involvements. Ld. Counsel prays for a lenient view against the convict.
On the other hand the Ld. Addl. PP for the State has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict. He has argued that the convict has done worst kind of a crime since he had used force upon the deceased child about ten years of age, committed sodomy upon him and thereafter strangulated him with his own Baniyan. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 82
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 83 by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a
helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 84 and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
In the case of Shivaji Vs. State of Maharashtra the Hon'ble Apex Court considered as to whether or not circumstantial based conviction should be taken to be the mitigating factor and had observed that the plea that in case of a circumstantial evidence, death should not be awarded, is without any logic. It was also observed that if the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms the foundation for conviction, that have nothing to do with the question of sentence as has been observed in various cases while awarding death sentence. The Hon'ble Court was of the view that to treat circumstantial evidence as St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 85 mitigating circumstances would amount to consideration of an irrelevant aspect and in a case which falls in the Rarest of Rare category death sentence should be awarded.
However, the Hon'ble Apex Court in the case of Swami Shradhanand Vs. State of Karnataka reported in 2008 (13) SCC 767 considered an alternative option and substituted the death penalty with life imprisonment with the directions that the convict must not be released for the rest of his life.
The question now before this court is whether a punishment lesser than death would be wholly inadequate or whether the alternative option as proposed in the case of Swami Shradhanand Vs. State of Karnatka reported in 2008 (13) SCC 767 and Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 would be adequate.
The latest decision in the case of the Hon'ble Apex Court pertaining to the imposition of death sentence in the case Santosh Kumar Satish Bhushan Bariyar Vs. State of Maharastra decided on 13.5.2009 reported in JT 2009 (7) SC 249 the Hon'ble Court has highlighted the important facet pertaining to the sentencing procedure being the consideration of alternative options. Discussing the nature and the content of the Rarest of Rare dictum, the Hon'ble Apex Court observed that a real and abiding concerned for the dignity of human life St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 86 postulates resistance to taking a life through instrumentality of law. That ought not to be done, save in the rarest of rare cases, where the alternative option is unquestionably foreclosed. It was observed that imprisonment for life as penalty entails, is that the accused must remain in prison till his life i.e would never be set free from jail. The executive, however, has the power of remission under Section 433 Cr.P.C which is subject to the restriction imposed by section 433A Cr.P.C as per which a person sentenced to imprisonment for life or one whose sentence of death has been commuted to imprisonment for life cannot be released from prison unless he/she has served at least 14 years of imprisonment.
The alternative option considered by the Court was to pass a direction that the accused who has been held guilty would not be released from prison till a sentence more than 14 year imprisonment has been suffered by the accused who has been sentenced to undergo imprisonment for life.
Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal (Supra) in a case pertaining to the killing of an eye witness and injuring of his security officer in a shoot out by the accused in full public view, examined this facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 87 Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249. Hon'ble Mr. Justice Pradeep Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a higher category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip the said benefit being extended to the convict by directing that the convict shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 88 in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years.
Now I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Raju is a young boy and has no previous criminal record. The aggravating factors are the convict was related to the deceased child aged about 10 years being the maternal uncle (Mama) of his mother. The extent of force used upon the child is evident from the fact that there was injury on the right eye of the deceased child and the convict in order to ensure that his crime (sodomy) does not come to light, brutally strangulated the child after committing the ghastly offence.
Lately cases of aggravated sexual assault on children including sodomization of male children are on rise. The deceased child was the vulnerable prey for the convict. It makes no difference whether the victim is a male child or a female child, the physical pain and trauma (physical, emotional and physiological) faced by the child is the same. A male child is as much at a risk as a female child. Ironically, these offences are committed by those who are closely St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 89 related and known to the child.
In the present case the offence has been committed by a person who is the maternal grandfather (Nana) in relation to the child. This is nothing short of betrayal of trust, the child Sohan must have reposed in the convict. While Acchey Lal the father of the child had gone to the market to make purchases of ration so that the convict who was their guest could be served dinner, the convict on his part was satisfying his hunger for sex by committing carnal intercourse against the order of nature upon the child of Acchey Lal. What the convict has done is unthinkable. This category of perpetrators of crime who if not removed from the circulation of the society would destroy it. This Court cannot ignore the loud cry for justice by the society in this case involving heinous crime of sodomization of an innocent child of tender years and his grotesque killing and will respond by imposition of proper sentence least people loose faith in the Judicial System and take law into their hands. If the Justice System fails to act in time to come up to legitimate expectations of the society; people would stand up and act, for which we cannot blame them. There cannot be a disconnect between the sentence so imposed by the Court and the legitimate expectations of the society. Let those who mess with children know that the Justice System in India has Zero Tolerance for it and a single moment of madness can lead them to a life behind the bars. St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 90
This being the background, the ghastly, inhuman act of the convict cannot be condoned and a substantive, stern sentence if not imposed upon him would be travesty of justice. The message to be sent by the Court has to be loud and clear, and that is "do not mess with a child" and any person who meddles with the child male or female in any manner shall not be spared come what may. The present case cannot be put on the same pedestal as other ordinary murder case but at the same time it also does not fall within the category of Rarest of Rare Case. The case in my view falls within the category of a Rare Case calling for consideration of alternative options. I hereby award the following punishment to the convict Raju:
1. For the offence under Section 302 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for life 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 for a sum of Rs.1,00,000/ (Rs. One Lac). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of six months. The entire fine amount of Rs,1,00,000/ if recovered shall be given to the family of the deceased child as compensation under Section 357 Cr.P.C.
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 91
2. For the offence under Section 377 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) years and fine for a sum of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
It is clarified that the sentences shall run consecutively (i.e. first for the offence under Section 302 IPC and thereafter for Section 377 IPC i.e. 30 years). Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial in the present case as per rules.
Before ending I may observe that while considering the various aspects of sentencing a sexual offender cannot be treated at par with other offenders. Criminal Jurisdictions world over have recognized the requirement of drawing a separate sentencing policy (alternative sentences) and need for separate prisons for male sex offenders (Reference may be made to the Nottingham Prisons for male sex offenders UK) wherein a specific treatment plan (medical as well as psychological) is designed for these offenders who sign up for it during their prison term. (Reference may be made to HMP Whatton Prison - Nottingham). It is time to take a note of the same and explore these possibilities as a part of major Prison Reforms in India. Keeping in view the nature of the offence committed by the convict in the St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 92 present case, I am convinced that there is a desirability of keeping him as well as others of his kind (male sex offenders) separately from other offenders (perhaps in a separate barrack which can be created for such offenders) wherein a specific plan is designed for them (i.e. for their treatment or otherwise). Copy of this order is directed to be placed before the Director General (Prisons), Delhi for exploring the above possibilities and appropriate action as per rules.
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 of sentence be given to the convict free of costs and another copy be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 20.10.2012 ASJII(NW)/ ROHINI
St. Vs. Raju, FIR No. 134/11, PS Adarsh Nagar Page No. 93