Delhi District Court
The State vs Sanjay Dass S/O Sh Asarfi on 21 October, 2008
IN THE COURT OF SH BABU LAL ADDL SESSIONS JUDGE
DELHI
SC No 09/07
The State Versus Sanjay Dass S/o Sh Asarfi
Dass, R/O Village PO Bheja,
District Madhubani, Bihar.
FIR No 295/06
P.S. Roop Nagar
U/s 302/307/376/392 IPC
ORDER ON SENTENCE
1. Vide my judgment dated 4.10.08, I had convicted
Sanjay Dass U/s 302/307/376/379 IPC. I have heard
Addl PP for the State and Ld Amicus Curiae on the point
of sentence.
2. It has been argued by Addl PP that wife of
complainant had employed convict on 14.10.06 as a
domestic aid and on the night intervening 18/19.10.06l
the convict sneaked into the bedroom of his three minor
children at midnight with intention to commit rape on his
1
daughter. He has submitted that he was armed with a
knife which shows that he had intention to go to the
extent of killing any one if any resistance was put in his
way to committing rape on victim No 2. He has
submitted that convict placed knife on the neck of victim
No 3 and when victim No 2 put on the light and when
victim No 3 wanted to go inside the bathroom to save
herself on the pretext of taking water, she was followed
by victim No 1. However, it was the accused who had
picked up victim No 1, aged about four years, by taking
his neck into his arms and raising him upwards and
thereafter he slit his throat, threw him on the bed with
knife stuck in his neck. He has also submitted that when
knife, accused was armed with, stuck up in the neck of
victim No 1, he rushed to the adjoining kitchen, brought
another knife from there and thereafter attacked victim
No 2 and victim No 3 and gave knife blows on their
necks. He has submitted that convict has committed
murder of victim no 1 and made attempt on the lives of
2
victim No 2 and 3 by inflicting injuries on their necks.
He has submitted victim No 2 could be saved only
because she was removed to Apollo Hospital where she
was operated upon. Tracheotomy was conducted on her.
He has submitted that accused gave knife blows on the
back of victim No 2 to break her resistance and thereafter
forcibly committed rape upon her. Consequently she
sustained tear injuries on her vagina because of forcible
act of rape committed by convict. He has submitted that
whole floor was splattered with bloood, victim No 1 was
dying with knife stuck in his neck whereas victim No 2
was bleeding profusely from injuries on her neck and in
that situation convict had committed act of forcible
sexual intercourse on her, therefore, keeping in view
magnitude of the criminal acts committed by the convict
and the circumstances under which offences were
committed by him, case qualifies to be 'rarest of rare
cases', warranting award of 'capital punishment' to the
convict.
3
3. On the other hand, ld Amicus Curiae has
submitted that convict was between 19-20 years of age on
the date of commission of offence, he is not a previous
convict, nor is he a habitual offender, nor is he involved
in other case. He has submitted that he is a married
person and has a wife and a female child to support and
he is sole earning member of his family. He has also
submitted that the convict has been wronged by the
complainant because he was compelled to to have
homosexual relations with him. He has also submitted tht
all the circumstances should be kept in mind while
awarding sentence to the convict. He has also submitted
that convict has shown remorsefulness in his conduct,
therefore, case by its nature does not qualify to be 'rarest
of rare cases' so as to warrant award of extreme penalty.
On the other hand, it is submitted that keeping in view
age, character and antecedents of the convict, he deserves
mercy of the court, hence, a lenient view be taken.
4. It may be mentioned that Indian Penal Code
4
declares various acts as offences and provides for
punishment in case a person is found guilty o committing
any of them. Penologists have propounded number of
approaches and theories of punishment but they can be
categories broadly in three categories on the basis of their
objectives:- (1) Retributive theory ( 2) Deterrence theory
and (3) Reformative theory.
5. In modern civilized world with emphasis on
human rights and human dignity, barbaric and inhumane
penal sanctions have been outlawed by the civilized
States. If at all in certain part of the world, retributive
principles of penology are adhered to, they can only be
referred to as primitive in nature and unsuited to civilized
way of life. In the retributive theory, even the victim or
his family members are allowed active participation in
inflicting punishment by way of revenge so as to give
psychological solace to the victim or his family members.
These principles have no place in place in our country
wedded to human dignity and respect for human rights.
5
6. So far as reformative theory is concerned, it gives
more emphasis on rehabilitation and reclamation rather
than on retribution. However, these principles are
applied where offences are not serious and where accused
has not been found guilty of grave charges like
committing murder. Therefore, these principles are not
attracted to serious offences like present ones. The
provisions have been made in the Probation of Offenders
Act and under section 360 Cr.P.C. where reformative
methods are resorted to in the expectation of reclaiming
the offender. But they are only applicable where offences
are punishable with imprisonment for not more than 10
years. Therefore, in the present case, these principles can
not be applied.
7. Another basis on which criminal liability of a
convict is determined is the principle of deterrence.
According to this theory, its objective is to deter a
criminal from committing similar acts in future. But
emphasis in this theory is on prospective acts of the
6
offender rather than liability for his past act. Off late a
debate had ensued in European countries that ''just desert''
is the governing principle in the field of sentencing. The
first systematic principle of proportionability of sentence
was expounded about 200 years ago by Cesare Beccaria (
Crime and Punishment) and Jeremy Bentham ( Principles
of Moral and Legislation). These writers called
positivist utilitarians had advocated award of graded
penalties- based on objectives of general deterrence.
Norval Morris has observed that concept of desert
defines relationships between crimes and punishments on
a continum between unduly lenient and the excessively
punitive within which the just sentence may be
determined on other grounds. He has also observed that
desert is not a defining principle; it is a limiting principle.
The concept of '' just desert'' sets the maximum and
minimum of the sentence that may be imposed for any
offence and helps to define relationships between crime
and punishment; it does not give any more fine-tuning to
7
the appropriate sentence than that. The fine-tuning is to
be done on utilitarian principles.
8. Question will arise as to what are the determining
factors of '' just desert''. In this regard, Professor Andrew
Von Hirsch in his book'' Past or Future Crimes -
Deservedness and Dangerousness in the Sentencing of
Criminals' has observed that central principle of a desert
rationale for sentencing is '' commensurability''.
Sentences should be proportionate in their severity to the
gravity of offenders' criminal conduct. The criterion for
deciding quanta of punishments should, according to this
principle, be retrospective and focus on the
blameworthiness of the defendant's actions. The
prospective considerations- the effect of the penalty on
the future behaviour of the defendant or other potential
offenders- should not determine the comparative severity
of penalties.
9. In the aforesaid discussion, concept of
''proportionability'' is based on two other concepts,
8
namely, 'gravity of offence' and 'severity of
punishments'. Gravity of offence or seriousness of
offence has further two major components (1) harm,
caused to the victim and (2) culpability of offender.
According to Professor Andrew von Hirsch 'harm' refers
to the injury done or risked by the criminal act whereas
'culpability' refers to the factors of intent, motive and
circumstances that determine how much the offender
should he held accountable for his act. The 'culpability',
in turn, affects the assessment of 'harm'. The
consequences that should be considered in gauging the
harmfulness of an act should be those that can fairly be
attributed to the actor's choice and not unforseeable
consequences of his act.
10. Off late in State of Washington and
Pennsylvania, commissions have been appointed by the
State to lay down guidelines governing principles of ''
desert rationale''. Even in Finland amendments were
carried out in Criminal Code and it has added that
9
'' punishment shall be measured so that
it is in just proportion to the harm and
risk involved in the offence and to the
degree of guilt of the offender
manifested in the offence''.
11. Thus in certain jurisdictions, principles of
''commensurability'' have been enacted in the Statutes
itself.
12. In India, we do not have any statutory provisions
governing sentencing. However, a plenthora of judicial
decisions has emerged whereby Hon'ble High Courts and
Hon'ble Supreme Court have laid down guidelines which
have bearing on the issue of sentencing. In India also
principle of '' desert'' and ''commensurability'' have
been recognized.
13. In Shivaji @ Dadya Shankar Alhat vs State of
Maharastra, 2008 IX AD ( SC) 538, it has been held that
Judges in essence affirm that punishment ought always to
fit the crime; yet in practice sentences are determined
largely by other considerations which are correctional
needs of the perpetrator and sometime the desirability of
10
keeping him out of circulation and sometime even the
tragic result of his crime. It has been observed that
inevitably these considerations cause a departure from
just desert as the basis of punishment and create cases of
apparent injustice that are serious and widespread. It has
also been observed that proportion between crime and
punishment is the goal respected in principle, and in spite
of errant notions, it remains a strong influence in the
determination of sentences. In order to bring a balance
of proportionability between crime and punishment, their
lordships have laid down that aggravating and mitigating
factors and circumstances under which crime has been
committed are to be delicately balanced on the basis of
really relevant circumstances in a dispassionate manner
by the Court.
14. Secondly, it was observed that evaluation of
circumstances should be germane to the circumstances of
perpetration of crime. It was held that (1) approach
should be to protect society and to deter the criminal, in
11
achieving avowed object of law by imposing appropriate
sentence, (2) sentence should reflect the conscience of the
society and sentencing process has to be stern where it
should be, (3) Social impact of the crime, e.g. where it
relates to offences against women, dacoity, kidnapping,
misappropriation of public money, treason and other
offences involving moral turpitude which have great
impact on social order, and public interest, can not be lost
sight of and per se require exemplary treatment. (4) The
imposition of appropriate punishment is the manner in
which the Court responds to the society's cry for justice
against the criminal, therefore, court should impose
punishment befitting crime so that Courts reflect public
abhorrence of the crime. (5) The court must not only
keep in view the rights of the criminal but also the rights
of the victim of the crime and the society at large while
considering imposition of appropriate punishment.
15. In Ravji vs State of Rajasthan 1996(2) SCC 175,
it has been held that it was the nature and gravity of the
12
crime but not the criminal, which are germane for
consideration of appropriate punishment in the criminal
trial. It was also observed that Court will be failing in its
duty if appropriate punishment is not awarded for a crime
which has been committed not only against the individual
but also against the society.
16. So far as relevancy of factors to be taken into
consideration for award of punishment for crime, their
lordships have further held that they must not be
irrelevant but it should conform to and be consistent with
the atrocity and brutality with which the crime has been
perpetrated, the enormity of the crime warranting public
abhorrence and it should respond to the society's cry for
justice against the criminal. It was also observed that if
for extremely heinous crime of murder perpetrated in a
very brutal manner without provocation, most deterrent
punishment is not given, the case of deterrent punishment
will lose its relevance.
17. From the observations made by their lordships of
13
Hon'ble Supreme Court referred to above, it is clear that
Court should adhere to principle of 'proportionability'
and 'commensurability' while awarding sentence to the
convict. Secondly Court is required to go into all the
aggravating and mitigating factors brought on record in
order to reach right conclusion.
18. For offence U/s 302 IPC, only two sentences
have been prescribed by the statute (1) Capital
punishment, or (2) sentence of imprisonment for life.
The court has to make a choice between the two
sentences. U/s 354 Cr.P.C. Court is required to give
special reasons for awarding capital sentence to the
convict. Secondly, the Court can award capital sentence
only where on the basis of facts brought on record case
qualifies to be ''rearest of rare cases''. What are those
cases or the circumstances which have reflection on the
case to make it out to be a rarest of rare case. In Machi
Singh vs State of Punjab 1983 ( 3) SCC 470. It was held
that (i) the extreme penalty of death need not be inflicted
14
except in gravest cases of extreme culpability. (ii)
Before opting for the death penalty, the circumstances of
the ' offender' also require to be taken into consideration
along with the circumstances of the ' crime'. ( iii) Life
imprisonment is the rule and death sentence is an
exception. In other words, death sentence must be
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to
relevant circumstances of the crime, the option to impose
sentence of imprisonment for life can not be
conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant
circumstances. (iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up and in doing
so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the
option is exercise.''
19. In another case Devender Pal Singh vs State of
15
NCT of Delhi, 2002 ( 5) SCC 234, their lordships have
laid down circumstances which make out the case rarest
of rare cases. These criteria have been approved by
Hon'ble Supreme Court in Shivaji @ Dadya Shankar
Alhat vs State of Maharastra ( Supra).
20. Another important aspect of sentencing is the
extent of relevancy of discretion or ideological preference
of a judge for making choice of sentence for a convict out
of multiple alternative sentences. In this regard in
Devender Pal Singh vs State of NCT( Supra) it was held
by their lordships of Hon'ble Supreme Court that personal
opinion as regards desirability or otherwise of retaining
death penalty should not come any way in inflicting
capital punishment when collective conscience of the
community is shocked, that it will expect the holders of
judicial power centre to inflict death penalty.
21. Ld Amicus Curiae has submitted that enormity of
crime is only of the factors but not the sole determining
factor, therefore, when alternative sentence of life
16
imprisonment can be awarded, capital sentence should be
avoided by the court.
22. To press his contention, he has relied upon an
authority reported as Sardar Khan vs State of
Karnataka, AIR 2004 SC 1695. It was a dowry death
case. In that context, their lordships had observed that
brutality in taking away life of the victim is only one of
the factors which is required to be taken into
consideration for coming to the conclusion that the case is
one of the rarest of rare cases warranting imposition of
death penalty. It was also observed that imposition of
imprisonment for life is a rule and imposition of capital
sentence is an exception. To rely upon the conclusion,
their lordships had relied upon Prem Sagar vs
Dharamvir & Ors 2004 (1) SCC 113. In that case, the
wife was killed by husband by kicking her on her
stomach when she was pregnant as a result of which she
had died. In those circumstances, their lordships came to
the conclusion that it was not the case which qualified to
17
be rarest of rare cases warranting award of extreme
penalty.
23. Ld Amicus curiae has also relied upon Ronny vs
State of Maharastra AIR 1998 SC 1251. In that case,
accused were found guilty of triple murder with robbery
and rape. In that case imprisonment of life was awarded.
However, reasons for awarding life imprisonment to the
accused was that three accused persons were involved in
the alleged offence and there was no evidence on record
nor it was possible to come to the conclusion as to which
of the accused had played what role. Since it was not
possible to say as to whose case fell within rarest of rare
case, capital sentence was avoided. However,
observations were made by their lordships categorising
the cases where the capital sentence could be passed:- (1)
where culpability of the accused has assumed depravity,
(2) where accused is found to be an ardent criminal and
menace to the society or (3) where the crime is
committed in an organized manner, and is gruesome
18
cooled blooded, heinous and atrocious, or where an
innocent and unarmed persons are attacked and murdered
without any provocation. The above four cases, it was
held, would present special reasons for the purpose
section 354(3) Cr.P.C.
24. He has also relied upon another authority
reported as Lokman Shah and another vs State of West
Bengal AIR 2001 SC 1760. In this case, accused/
appellant had joined unlawful assembly and was proved
to have caused death, it that context it was held that it was
not rarest of rare case. The reason given by their
lordships was that accused had acted in rage of fury blind
folded by communal frenzy in a communal riot,
therefore, in that context it was held that accused
deserved alternative sentence of life imprisonment.
However, this is not the case in the present case.
Sentiments of the accused were not hurt by the victims,
they were innocent and unarmed. The accused had
committed the crime in a well calculated and pre-
19
meditated manner, therefore, present authority is not
attracted to the facts of the present case.
25. I may add that in order to determine the enormity
of the crime, the number of victims would not per se
bring the case in rarest of rare category. For this
proposition of law Samshulkanwar vs State of UP AIR
1995 SC 1748 and Sheikh Ashique vs State of Bihar
1993 ( 3) SCC 392 can be referred to.
26. Another important authority of Hon'ble Supreme
Court governing the issue Sushil Murmu vs State of
Jharkhand AIR 2004 SC 394. Relying upon Bachan
Singh vs State AIR 1980 SC 898, their lordships pointed
out the following circumstances which would qualify a
case to be ''rarest of rare cases''.
(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability ( ii) Before
opting for the death penalty the circumstances of the
offender also require to be taken into consideration along
with the circumstances of the crime. (iii) Life
imprisonment is the rule and death sentence is an
exception. Death sentence must be imposed only when
life imprisonment appears to be a altogether inadequate
punishment having regard to the relevant circumstances
20
of the crime, and provided, and only provided, the option
to impose sentence of imprisonment for life can not be
conscientiously exercised having regard to the nature and
circumstances of the crime and lal the relevant
circumstances. (iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up and in doing
so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the
option is exercised.
27. It was also held that in rarest of rare cases when
collective conscience of the community is so shocked and
it will expect the holders of the judicial power centre to
inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. Their lordships
also catalogued cases where community may entertain
such sentiment in the following circumstances :-
(1) when the murder is committed in extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the
community. (2) when the murder is committed for a
motive which envinces total depravity of meanness; e.g.
murder by hired assassinee, money or reward or a cold
blooded murder for gains of a person vis-a-vis whom the
murderer is in a dominating position or the position of
trust, or murder is committed in course for betrayal of the
motherland. (3) when murder of a member of a
21
scheduled Caste or minority community etc is committed
not for personal reasons but under circumstances which
arouse social wrath or in cases of bride burdning or
dowry deaths or when murder is committed in order to
remarry for the sake of extraction dowry once again or to
marry another woman or on account of infatuation. ( 4)
when the crime is enormous in proportion. For instance
when the multiple murders, say of all or almost all the
members of a family or a large number of persons of a
particular caste, community, or locality is committed. (5)
When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person
vis-a-vis when the murderer is in a dominating
position a public figure generally lowed and respected
by the community.
28. Their lordships had also pointed out that
sometime it is the correctional needs of the perpetrator
that are required to justify a sentence and sometimes the
desirability of keeping him out of circulation and
sometimes even the traffic result in his crime are the
considerations which warrant departure from just desert
as the basis of punishment and creates cases of patent
injustice that are serious and widespread.
29. In another authority reported as Mahesh vs State
of MP AIR 1987 SC 1346, their lordships made the
following pertinent observations
22
''it will be mockery of justice to permit the accused to
escape extreme penalty of law when faced such evidence
and such cruel acts. To give lesser punishment for the
accused would be to render the justicing system of this
country suspect. The common man will lose faith in
courts. In such cases, he understands and appreciates the
deterrence more than reformative jargone.
30. Now coming to aggravating factors of the case,
convict was employed by the wife of the complainant as
domestic aid and he was being paid for that. It is not the
case of convict that he was not paid his dues. Moreover
he was employed on 14.10.06 and he committed the
gruesome crimes on the night intervening 18/19.10.06 i.e.
within 4-5 days. In the judgment, it has been found that
allegations of sexual impropriety levelled by the convict
against the complainant are afterthought. Victim No 1
was four years of age, victim No 2 was 17 year of age
and victim No 3 was 9 years of age. They all were
innocent persons who had, in no way, hurt the sentiments
of convict. Convict sneaked into their bedroom armed
with knife determined to commit rape of victim No 2
even though for that purpose, he might take life of the
23
victims. He was armed with knife. Knife was not
ordinary but appears like one kept by criminals. This
shows his pre-meditation.
31. He picked up victim No 1 from his neck by his
arms, raised him upwards and slit throat of innocent boy
of four years and threw him on the bed with knife stuck
in his neck. He was a small boy. He was innocent. He
was defenceless, had not put up any resistance. The
helpless and imploring face of innocent child did not
arouse any trace of kindness in the heart of convict. It
clearly shows that act of the convict was diabolic of
superlative degree and cruel in execution. Victim No 1
was profusely bleeding.
32. Whole floor had been splattered with blood, the
convict rushed to adjoining kitchen, brought another
knife and inflicted injuries on the neck of victim No 2
which were quite serious. He also inflicted injuries on
the neck of victim No 3 with knife and thus he entered
into mindless killing spree. There was blood all over the
24
floor and the bedroom was virtually turned into site of an
abattoir.
33. The life of victim No 1 was withering away in
helplessness but this view did not arouse any any
compunction or compassion in the heart of convict nor
did this view deter him from committing further crime.
Rather he gave knife blows on victim No 2 and 3 and
forcibly committed rape on victim No 2. In such a
mahem, if accused could perform act of forcible sexual
intercourse with victim No 2, it only shows a depraved
character of his mind.
34. The only circumstance which goes in favour of
convict is that now he is 22 years of age and was between
19-20 years of age at the time of commission of offences
by him. However, in my opinion, the age is not the sole
criterion to inflict lesser penalty. In Dhanajoy
Chatterjee vs State of West Bengal 1994 ( 2) SCC 220,
the convict was 27 years of age at the time he was
awarded the capital sentence. Here the accused is 22
25
years of age. Therefore, in view of above authority, I am
of the view that age of convict in itself is not such a
mitigating factor as to over-weigh against overwhelming
aggravating factors against him. Keeping this factor in
mind, it was observed by their lordships that measure of
punishment in a given case must depend upon the
atrocity of the crime, the conduct of the criminal and
defenceless and unprotected state of the victim. It was
also observed that Court must not keep in view the rights
of the criminal but also rights of the victim of crime and
the society at large while considering imposition of
appropriate sentence.
35. After applying the guidelines of Hon'ble Supreme
Court on the facts of the present case, I am of the view
that present case is a rarest of rare cases. The convict had
acted in a well calculated and pre-meditated manner,
committed murder of a four years boy in a gruesome
manner by slitting his throat. He entered into mindless
killing spree and attacked victim Nos 2 and 3. When the
26
life was withering from the body of victim No 1 and
blood had been splattered on whole of the floor of
bedroom, in that scenario even he did not desist from
committing rape on victim No 2. Keeping in view the
enormity and diabolic manner in which convict
committed the crime, I am of the view that it qualifies to
be rarest of rare cases warranting extreme penalty of
death to the convict. Therefore, in view of reasons given
above, I sentence the convict as follows:-
(1) for offence U/s 302 IPC, I sentence the convict with
death and impose a fine of Rs 1,000 upon him. In default
of payment of fine, he shall undergo SI for three months.
The convict be hanged by his neck till his death.
Sentence of death awarded to the convict is subject to
confirmation by Hon'ble High Court of Delhi.
(2) For offence U/s 307 IPC, I sentence the convict with
rigorous imprisonment for a period of 10 years and
impose of fine of Rs 1,000 upon him. In default of
payment of fine, he shall undergo SI for three months.
(3) For offence U/s 376 IPC, I sentence the convict with
rigorous imprisonment for a period of 10 years and
impose of fine of Rs 1,000 upon him. In default of
payment of fine, he shall undergo SI for three months.
(4) For offence U/s 379 IPC, I sentence the convict with
rigorous imprisonment for a period of 2 years and impose
27
of fine of Rs 500 upon him. In default of payment of
fine, he shall undergo SI for one month.
36. A certified copy of the judgment and order of
sentence be given to the convict free of cost to enable him
to file an appeal against judgment and sentence, if he so
desired. Sentences of imprisonment awarded to the
convict shall run concurrently. Any period during which
convict has remained in custody during investigation,
inquiry and trial shall be set off against the sentences of
imprisonment awarded to convict. The convict has also
been apprised that he has a right to appeal against
judgment and sentence before Hon'ble High Court within
a period of thirty days. Record of the case be placed
before Hon'ble High Court for confirmation. Jail
warrants be accordingly prepared.
Announced on the Open Court
on 21.10.08 (BABU LAL)
ADDL SESSIONS JUDGE
DELHI
28
IN THE COURT OF SH BABU LAL ADDL SESSIONS JUDGE
DELHI
SC No 09/07
The State Versus Sanjay Dass S/o Sh Asarfi
Dass, R/O Village PO Bheja,
District Madhubani, Bihar.
FIR No 295/06
P.S. Roop Nagar
U/s 302/307/376/392 IPC
Arguments heard on 24.09.2008
Judgment pronounced on 04.10.2008
JUDGMENT
1. Prosecution has filed the present challan against accused Sanjay Dass U/s 302/307/376/392 IPC. Facts as alleged in the challan are that complainant Ramesh Kumar along with his wife and children had been residing in a home on Singh Sabha Road, Shakti Nagar, Delhi. He was in need of a domestic aid, therefore, his wife requested Jeetan Dass @ Jeetu, who used to teach her 29 driving to arrange for a domestic servant to work in her house. Jeetan Dass recommended the name of accused and sent him to the house of the complainant to serve as a domestic aid. He was employed by the wife of the complainant on 14.10.06. Accused continued to work in the house of the complainant. He was given a room at the roof of the house to live in.
2. On the night intervening 18/19.10.06, complainant along with his wife and children including accused were sitting in the bedroom of complainant and were watching TV. At about 10.00 p.m. two daughters and son of the complainant retired to their bed room. Accused remained in the bedroom of complainant upto 11.15 p.m. as he had been pressing his legs but thereafter he also left the bedroom and retired to his room. At about 12.55 a.m. daughters of the complainant entered his bedroom and they were crying that they had been assaulted by Sanjay Dass. Two daughters of the complainant were having injuries on their neck and were 30 profusely bleeding. They also told that accused had also stabbed son of the complainant with knife. When complainant and his wife entered the bedroom of their children, they found that their son was lying on the bed in the pool of blood with knife stuck up in his neck.
3. During the course of investigation, it transpired that after slitting the throat of son of the complainant, knife had stuck up in his neck, therefore, accused went out of the room to the kitchen, brought another knife from there and gave knife blows on the neck of both the daughters of the complainant. Thereafter, accused removed his own clothes and clothes of elder daughter of the complainant and forcibly committed rape upon her. With the help of neighbours and relatives, complainant removed all his three children to Sunder Lal Jain Hospital. In Sunder Lal Jain Hospital, son of the complainant was declared brought dead whereas his elder daughter who was injured in the incident was declared unfit for the statement. Subsequently both the injured 31 daughters of the complainant were removed to Apollo Hospital where both of them were treated.
4. Police reached the spot, place of incident was got photographed, chance prints were lifted, both blood stained knives were taken into possession, blood samples were lifted from the spot. Dead body of the son of the complainant aged 4 years was sent for postmortem examination. As per postmortem report, one incised punctured wound over left front of neck below apple of Adam and two small cuticle deep cuts over just below and adjacent to middle part of left mandible were found present. Cause of death was opined to be asphyxia consequent upon choking of trachea by blood clots as a result of injuries to major vessels of left side neck caused by sharp, cutting, penetrating and straight weapon. All the injuries were opined to be ante mortem in nature and were sufficient in ordinary course of nature to cause death.
5. Incised wound over anterior aspect of neck and 32 multiple incised wounds over back of elder daughter of the complainant were found present. Injury present on the neck of elder daughter of the complainant was opined to be dangerous. Medical evidence allegedly corroborated the version given by daughters of the complainant regarding rape. According to medical report, hymen of elder daughter of the complainant was found torn with circumferential tears between hymen and labia miora also with slight bleeding. Tear in fourchette with slight bleeding were present which were suggestive of forced sexual vaginal intercourse.
6. Injuries on the person of younger daughter of complainant were opined to be simple. Blood samples, vaginal swab handed over by the doctor in Apollo Hospital were taken into possession by the p;olice.
7. On 19.10.06 accused was arrested from village Tapovan, Rishikesh. He was brought to PS Roop Nagar on 20.10.06. During the course of investigtion, accused is alleged to have made disclosure statement about 33 clothes he was wearing at the time of incident. Thereafter, he is alleged to have led the police party to the roof of his room in the house of complainant and got recovered blood stained baniyan, pyjama, underwear and handkerchief from atop the roof of his room. He was also got medically examined. Sample of his pubic hair, scalp hair and blood were taken in Hindu Rao Hospital.
8. After elder daughter of the complainant regained consciousness and was declared fit for statement, 24.10.06 her statement was recorded. In her statement, she had disclosed that while she was raped by the accused, he had also removed a gold ring from her finger. Accused was interrogated regarding whereabouts of the ring which he had allegedly removed from the finger of elder daughter of the complainant. By that time, accused had been remanded to judicial custody. At the request of police, production warrants of the accused were issued and he was allowed to be interrogated by police by ld M.M. on 30.10.06. During the course of interrogation, he 34 allegedly disclosed that a gold ring had been kept by him in the pocket of his pyjama which he had thrown on the roof of room in which he had been residing. By that time pulanda containing clothes of the accused had been sent to FSL. However, same was taken back by the IO from FSL. Pulanda was again opened and from the pocket of the pyjama of the accused, a gold ring was allegedly recovered. Ring was separately sealed in a pulanda. TIP of the ring was held by ld M. M. in which elder daughter of the complainant had identified her ring.
9. All the samples of this case were sent to FSL.
FSL prepared their reports. After completion of the investigtion, police came to the conclusion that it was accused who was responsible for the incident, therefore, challan U/s 302/307/376/392 IPC was filed in court against him.
10. After supplying copies of challan and documents filed therewith, ld M.M. committed the case to Court of Sessions which in turn assigned the case to this court for 35 trial in accordance with law.
11. Charges U/s 302/307/376/392 IPC was framed against the accused to which he pleaded not guilty and claimed a trial.
12. In order to prove its case, prosecution in all has examined as many as 48 witnesses. In order to appreciate evidence on record, it will be appropriate to summarize the evidence under relevant heads.
13. It should be noted that accused is alleged to have committed rape, therefore, a duty has been enjoined on this court to conceal identity of the victim. Therefore, in the present case, deceased son of the complainant will be referred to as '' Victim No 1'', elder daughter of the complainant whom accused had allegedly raped, will be referred to as '' Victim No 2'' and younger daughter of the complainant will be referred to as '' Victim No 3''. Ocular evidence of victims and other witness
14. I will start from the testimony of complainant Ramesh Kumar Aggarwal, PW-10. In his testimony, he 36 has deposed that he had been residing along with his wife, three daughters and son in a house in Shakti Nagar, Delhi, address of which has been given in the challan. It is deposed that five days prior to incident, accused was employed by his wife as a domestic aid at the requet of one Jeetu. He was given a room on the roof of his house i.e. on the roof of second floor. He has testified that one of his three daughters was not present in the house on the day of incident as she had gone to Calcutta. On 18.10.06, he along with his wife, two daughters and one son were watching TV in his room. According to him, accused Sanjay Dass was also watching TV with them. At about 10.00 p.m., his children left his bedroom and retired to their bedroom. Accused kept on watching TV and continued to give comfort to him by pressing his feet. At about 11.15 p.m., he along with his wife went to sleep and accused left the room.
15. He further deposed that at about 12.45 a.m. his elder daughter entered his room, put on light. According 37 to him, she was soaked in blood and was crying loudly in pain that accused Sanjay Dass had caused injuries and thereafter she fell down on the bed immobile. She also told him that accused had caused injuries to '' Victim No 1'', therefore, he along with his wife, rushed to bedroom of their children. On entering the bedroom, they found their son lying on the bed drenched in blood and a knife was stuck in his neck. According to this witness, handle of the knife was of iron and it was an old knife which did not belong to his home. He pulled out the knife from the neck of '' Victim No 1'' and threw it on the floor. With the help of his neighbours and relatives, he removed all the children to Sunder Lal Jain Hospital where '' Victim No 1'' was declared brought dead. Both of his daughters were admitted in the hospital in precarious condition. Police came to the hospital and recorded statement of the complainant which has been proved as Ex PW10/A. Blood stained clothes of '' Victim No 3'' were handed over to police in the hospital. Clothes of '' Victim No 3'' 38 consisted of pink coloured top having cutting like a shoe and word SPORTS was embroidried thereon and a pyjama of pink colour. According to this witness, these clothes were worn by '' Victim No 3'' on the day of incident. These clothes are deposed to have been taken into possession by the police vide memo Ex PW10/B. According to him date of birth of '' Victim No 2'' is 9.10.1989 and of '' Victim No 3'' is 28.4.1997. Photocopy of birth certifies have been proved as Ex PW10/C and Ex PW10/D.
16. In his cross examination, he has stated that his statement was recorded by police at 4.00 a.m. in the morning. He has denied that Inspector Baltej Singh was with him from 1.30 a.m. to 4.00 a.m. According to him, his statement was also recorded on 26.10.06 regarding recovery of clothes of '' Victim No 3''. He has also stated that it was he who had pulled out knife from the neck of his son and was left at the spot which remained there when he had left for the hospital. According to him, he 39 did not find that knife when he came to his house at 10.00 a.m.
17. Wife of the complainant has been examined as PW-23. PW-23 Smt Nirmal Aggarwal in her testimony has testified that she had employed accused Sanjay Dass as domestic aid on 14.10.06. She has also stated that on the night intervening 18/19.10.06 her two daughters '' Victim No 2'' & 3'' and his son '' Victim No 1'' were watching TV in her bedroom. She has also testified that accused was also there in the bedroom and was watching TV. At about 10.30 p.m. her children retired to their bedroom and at about 11.00 p.m. accused also left the bedroom and they went to sleep. According to her, accused used to sleep in the room situated on the roof of their house. At about 12.40 a.m., it is deposed, she heard the sound of switching on the light in her bedroom, she woke up and saw that elder of her two daughters '' Victim No 2'' was smeared in blood and was not having undergarments on her person. She is deposed to have 40 awakened the complainant. She is deposed to have told her that she had been assaulted by accused Sanjay. In the meantime, her younger daughter '' Victim No 3'' also entered the bedroom and she also told that accused Sanjay Dass had stabbed all the three children. She along with her husband rushed to bedroom of her children and saw that her son was lying on the bed with knife stuck in his neck, therefore, it was removed by her husband. Alarm was raised by her. She is deposed to have put clothes on '' Victim No 2''. In the meantime, neighbours came and she is deposed to have removed her children to Sunder Lal Hospital with the help of neighbours. According to her, her son '' Victim No 1'' was declared dead in the hospital. Accused absconded from her house. According to her, there was a bathroom situated near staircase of her house where a knife was found lying. The knife had been washed off. She has identified the knife which was stuck up in the neck of ''Victim No 1'' as Ex P-9. She has identified the knife which was kept in 41 kitchen of her house as Ex P-10.
18. In her cross examination, she has also stated that after removing knife from the neck of '' Victim No 1'', her husband had thrown the same on the floor. She has also stated that before leaving the house, she had gone to the bathroom near the staircase where she noticed a knife lying there. That knife was separately taken into possession by the police. According to her, her children were removed to hospital within 10-15 minutes. Secondly, she had not locked the house before going with SHO.
19. '' Victim No 2'' has been examined as PW-21. In her testimony, her version is that accused had been employed by her mother as a domestic aid on 14.10.06. On 18.10.06, she along with her mother, father, sister '' Victim No 3'' and brother ''Victim No 1'' had been watching TV in the bedroom of their parents. At about 10.30 p.m. all the three children retired to their bedroom to sleep. '' Victim No 1 and 3'' went asleep but she 42 continued her studies for half an hour and thereafter she too went to sleep. At about 12.00 night, she is deposed to have heard noise of weeping of ''Victim No 3'', therefore, she woke up, put up light and saw that accused Sanjay was sitting between her bed and bed of ''Victim No 3''. It is deposed that accused was carrying a knife in his hand and he rushed towards her. She tried to open the door by unfastening chatkani but in the meantime accused gave knife blows on her back and on left side of her body, therefore, she fell down on the floor.
20. It is deposed that ''Victim No 3'' was crying, accused went to her and slit her throat with kife. Accused asked her to remove her pant. In the meantime, ''Victim No 1'' woke up and started crying. ''Victim No 3'' asked the accused to allow her to go out to take water but accused asked her to take water from the tap in the bathroom. '' Victim No 3'' went to the bathroom and '' Victim No 1'' followed her and while he was in the process of entering the bathroom, accused caught hold of 43 him from his neck, picked him up while holding him from his neck and slit his throat. Thereafter, he threw him on the bed and knife remained stuck in his neck.
21. According to this witness, since knife had stuck up in the neck of ''Victim No 1'', accused went out of the room and brought another knife from the kitchen of the house. He is deposed to have give blow with that knife on the neck of '' Victim No 3''. With the same knife, he also gave blow on the neck of this witness. She has deposed that thereafter accused removed her pyjama and under pant, removed his own clothes and tried to rape her. She is deposed to have taken a turn on one side but accused again gave a knife blow on her back. He made this witness straight on the floor and committed rape upon her.
22. According to this witness, in this process, accused had also removed ring from the finger of her left hand. Accused put ''Victim No 2'' on the bed of ''Victim No 3'' and again tried to rape her but she was not in a 44 mental state to comprehend as to what had happened. According to her, she fell down from the bed, accused checked her breath by placing his fingers before her nostrils to ascertain if she was alive but she had stopped her breath and thereafter accused is deposed to have slipped away from the room.
23. This witness i.e. ''Victim No 2'' is deposed to have asked ''Victim No 3'' to go to the room of their parents to inform them about the incident but she was scared and did not go out of the room apprehending that accused must be present outside the room.
24. ''Victim No 2 and 3'' were bleeding from their neck. ''Victim No 2'' reached the room of her parents creeping ( khisekte khisekte) on the floor, opened the gate of bedroom of her parents and switched on the light. Her mother is deposed to have woken up. According to her, she told her parents that accused had done all that had happened to her. Her mother is deposed to have helped her put on clothes and with the help of neighbours, her 45 parents removed all the three children to Sunder Lal Jain Hospital. According to this witness, ''Victim No 1'' was declared dead in Sunder Lal Jain Hospital and ''Victim No 2 & 3'' were medically examined there. Both ''Victim Nos 2 & 3'' were removed to Apollo Hospital.
25. This witness has identified her pyjama and underwear, which she was wearing at the time of incident, as Ex P-1 and Ex P-2. This witness has also identified piece of shirt and brassiers both deposed to have been blood stained as Ex P-20 and P-21. She has stated that she was wearing the same at the time of incident. She has identified one blood stained pyjama which was given to her mother to wear as Ex P-19.
26. She has identified night suit consisting of top and pyjama worn by ''Victim No 3'' at the time of incident as Ex P-3 and P-4.
27. This witness has also identified blood stained underwear, kurta, pyjama and baniyan which were worn by ''Victim No 1'' at the time of incident as Ex P-11 to P- 46
14.
28. She has also identified one pyjama, underwear and baniyan as Ex P-5 to P-7 to be the same which were worn by accused at the time of incident. She has identified the handkerchief of accused as Ex P-8.
29. The knife with which accused had slit throat of '' Victim No 1'' and which had stuck up in his neck has been proved as Ex P-9. Another kitchen knife which accused had brought from the kitchen and had assaulted ''Victim No 2 & 3'' has been proved as Ex P-10.
30. Two bedsheets stained with blood which were spread on the bed of bedroom of children have been proved as Ex P-15 and Ex P-16. Blood stained bedsheet which was spread in the bedroom of parents of the children has been proved as Ex P-17. All the above articles are deposed to be smeared in blood.
31. According to this witness, she was called to join TIP of the ring which she was wearing at the time of incident and which accused had taken away from the 47 finger of her hand. Ring has been proved as Ex P-18.
32. She has also deposed that at the time of incident, she had caught hold of the accused from his hair when he had assaulted her for the first time and some of his hair had come into her hands. These hairs are deposed to have been taken into possession by the police.
33. In her cross examination, she has stated that first of all, accused had assaulted ''Victim No 3'' with knife and that was a folding knife. She has stated that second knife Ex P-10 is the knife which was lying in the kitchen of her house and was used by the accused.
34. So far as situation of the kitchen is concerned, this witness has explained the kitchen from where accused had brought the knife was situated in between bedroom of ''Victim Nos 1 to 3'' and bedroom of their parents. The size of kitchen has been given around 10'x12' in size. She was specifically asked as to why she had not raised noise and she replied that first of all she had sustained injuries. She has also stated that she had 48 not struggled with accused to save myself nor she had fought with him. But she has added that he had pulled his hairs.
35. ''Victim No 3'' has been examined as PW-22. She is about 10 years old. Mutatis mutandis she has also deposed to the same effect as PW-21. According to her also, she, her sister and her brother ( '' Victim No 1 to 3'') were watching TV in the bedroom of their parents. At about 10.30 p.m. they retired to their bedroom to sleep. She is deposed to have occupied the bed which was on the side of bathroom. ''Victim No 1'' is deposed to have slept on another bed in the same room. Her sister continued to study in the bedroom and after a short while ''Victim No 2'' also went to sleep. According to her, she felt that somebody was scratching her body, therefore, she woke up and saw that accused was fondling his hand on her body. When this witness is deposed to have removed hand of accused from her body, he assaulted her with knife in her neck and pressed the knife as a result of 49 which she sustained injury and blood started oozing out. According to this witness, when she tried to remove hands of the accused, she also sustained injuries on her fingers of both the hands.
36. Accused is deposed to have pushed this witness from the bed and laid her on the floor. When she started weeping, her sister ''Victim No 2'' woke up and she put on the light. When ''Victim No 2'' tried to unfasten chatkani to open the door, accused attacked her with knife and gave 2/3 knife blows to her. It i deposed that accused asked this witness to open her pant, therefore, she got scared. She asked the accused to allow her to take water and accused asked her to take water from the tap in the bathroom of the bedroom itself. In the meantime, it is deposed, her brother ''Victim No 1'' also woke up, started weeping and followed her in the bathroom. Accused is deposed to have caught hold of '' Victim No 1'', picked him up from his neck, slit his throat with knife he was having in his hand and laid him on the bed. It is deposed 50 that knife stuck up in the neck of ''Victim No 1''.
37. It is deposed by PW-22 that accused Sanjay ran to the kitchen, brought another knife and gave many blows to this witness with that knife. Accused also gave knife blows to her sister ''Victim No 2'' on her back and side of her body. It is deposed that accused removed underpant of '' Victim No 2'', removed his own under clothes also and thereafter committed rape on her. He is again deposed to have laid '' Victim No 2'' on the bed and again committed rape. Thereafter accused is deposed to have checked by placing his fingers against nostrils of '' Victim No 2'' to judge if she was breathing or not and thereafter he went away.
38. It is deposed that ''Victim No 2'' asked her to call her mother but due to fear, she did not go out of the room. It is deposed that after some time ''Victim No 2'' went to the bedroom of her parents and she also followed her and narrated the whole incident to their parents. Their father is deposed to have removed all the children to Sunder Lal 51 Jain Hospital.
39. This witness (PW-22) has identified undergarment which she was wearing at the time of incident as Ex P-22.
40. She has also identified knife Ex P-9 and has stated that this very knife was initially in the hand of the accused and with which he had assaulted her.
41. She has identified another knife as Ex P-10 to be the same which accused had brought from the kitchen and had given blows to them.
42. In her cross examination, she has explained that kitchen was between bedroom of the victims and bedroom of their parents. She has also stated that she did not cry because she had received cut wounds with knife in her neck. She has admitted that she had not stated to the police that accused had done bad acts with her sister. She has also stated tht she did not raise alarm because she was injured. She has also stated that she did not run out of the room because it was bolted from upside by a 52 chatkani. When she was asked if ''Victim No 2'' had tried to save her from the accused, she had replied that her sister had tried to free her by moving herself on one side but accused gave a knife blow to her. She has also stated that when her sister took a turn on one side, accused had given a knife blow to her.
43. She has also stated that accused had gone out of the room where incident had taken place to bring knife from the kitchen. According to this witness, accused came back witin 5-10 seconds to bedroom with knife. She has also explained that she did not go out to the bedroom during this span of 5-10 seconds because in the meantime, he had come to the bedroom again.
44. According to her, they had gone to bedroom of their parents after about five minutes of the incident. So far as sequence of blows given to victims is concerned, she has stated that first blow of knife was given to her on her throat. She has admitted that blow as given before light was put on. She had admitted that she did not raise 53 alarm because she had sustained injuries on her throat. She has denied that door of their bedroom had been bolted from outside and this is why she could not go out of the bedroom.
45. PW-39 is Jeetan Dass @ Jeetu. He is the peson who had recommended the accused to wife of complainant for employment. It is deposed that he had recommended accused for employment to the wife of the complainant. In her testimony, PW-23 Ms Nirmal Aggarwal has deposed that accused was employed by her as domestic aid at the request of Jeetan Dass. This witness has stated that a person Subhash who was known to him had requested him that his brother in law was unemployed and he should search out some job for him. According to him, he asked Subhash to meet wife of the complainant Ramesh and he along with brother in law i.e. accused met her. This witness has also stated that Smt Nirmal Aggarwal had made a telephonic call to him that boy was proper for work and she was keeping him. He 54 has identified that boy sent for employment as accused Sanjay Dass. According to this witness, in October, 2006, police came to him and made inquiries about the accused. The police had taken him for search of accused Sanjay Dass and also made inquiries about Subhash, therefore, he had taken the police to the house of Subhash.
46. In his cross examination, this witness has stated that he had not physically seen the accused before even after he was employed in the house of Ramesh. However, no suggestion has been put to this witness nor to PW 21,22 and 23 denying this fact. In other words, it has not been disputed on behalf of accused that he had been employed by wife of complainant on 14.10.06 as domestic aid.
47. PW-5 Gurpreet Singh is neighbour of the complainant who had helped the complainant to take injured children to the hospital. In his testimony, he has testified that on the night intervening 18/19.10.06 at 55 about 12.20 or 12.30 a.m. he was about to go to sleep when he heard a noise which he initially ignored but later on he heard the noise to the effect that ''injuries have been caused to the children'' mere bachho ko mar diya''. He is deposed to have taken it a ccall of distress so, he reached the second floor of the house. Mr and Mrs Aggarwal are deposed to have opened the door and told that their servant had killed their children and had vanished.
48. He saw that Ramesh Kumar Aggarwal was carrying ''Victim No 1'' who was badly injured and was profusely bleeding. He has also stated that ''Victim No 2'' was lying on the bed in badly injured condition while '' Victim No 3'' was standing in the same room in injured condition. He is deposed to have given a ring at number 100 from his mobile No 9811042809. Thereafter he helped Ramesh Aggarwal in removing children to Sunder Lal Jain hospital in his own car. In his cross examination, he has stated that they had reached the hospital between 12.00 or 1.00 a.m. This witness is 56 deposed to have remained in the hospital only for five minutes and thereafter he returned back to his house where police was present. According to him, it might be 1.00 or 1.15 a.m. when he returned to his house where SHO and DCP were present. His statement is deposed to have been recorded by the IO in the morning hours. He has also stated that he had not seen knife lying in the room.
Medical Evidence in respect of victims:-
49. PW-2 Dr M. Arshad had firstly examined Pratham in Sunder Lal Jain Hospital. He has testified that on 19.10.06 at about 12.45 a.m. He had medically examined ''Victim No 1'' aged about 4 years. He has also testified that on examination, he found incised wound over sub mandibular region. He has declared ''Victim No 1'' as ''brought dead''. He has proved MLC of '' Victim No 1'' as Ex PW2/C. PW-33 Hc Tejpal had taken the dead body of ''Victim No 1'' from Sunder Lal Hospital to mortuary, Subzi Mandi.
57
50. PW-1 Dr K. Goel had conducted postmortem on the dead body of deceased ''Victim No 1'' on 19.10.06.
The dead body was identified by PW-18 Gopal Dass Khajanchi. PW-1 Dr K.Goel had found the following injuries on the person of deceased :-
Internal Examination
1. incised punctured wound 1.x x 0.5 cm transversely placed over left front of neck just below adam's apple.
2. Two small cuticle deep cuts each 0.4 cm long and about 1 cm apart each other over just below and adjacent to middle part of left mandible.
Internal examination '' On exploration of injury No 1, there were clean cuts in subcutaneious tissues, platysma muscle. Left sided common carotid artery and left internal jugular vein were completely severed. There was left sided cut in trachea just near its starting point exposing its canal, penetrating cut in the oesophagus. There was cut impression over second inter vertebral disc about .75 cm long. Trachea was full of blood clots. Blood was present all over left side neck. Approximate depth of the wound was about 5.00 58 cm.
51. The cause of death was opined to be asphyxia consequent upon choking of trachea by blood clots as a result of injuries to major vessels of left side neck caused by sharp, cutting, penetrating and straight weapon. All the injuries were opined to be ante-mortem in nature. According to the doctor, injury No 1 was sufficient in ordinary course of nature to cause death. Postmortem report has been proved as Ex PW1/A.
52. Clothes, scalp hair, blood sample in gauze piece of deceased were sealed and handed over to police. Application of police for conducting postmortem examination has been proved as Ex PW1/B. 12 inquest papers received by the doctor have been proved as Ex PW1/C-1 to C-12.
53. PW-18 is Gopal Dass Khajanchi. He has testified that he had identified dead body of his nephew ''Victim No 1'' at the time of postmortem examination. He has also stated that after postmortem, he had received dead 59 body vide receipt Ex PW18/A.
54. PW-2 Dr M Arshad was working in Casualty of Sunder Lal Jain Hospital. He has testified that on 19.10.06 at about 1.15 a.m. he had medically examined injured ''Victim No 2'' and had observed incised wound over anterior aspect of neck and multiple incised wounds over back. According to him, patient was unconscious and was having cold and clamming skin. Crepetation was opined to be present ( i.e. fluid was present inside the chest). The patient was admitted in ICU. Her MLC has been proved as Ex PW2/A.
55. PW-8 Dr Seema Patni, surgeon, Sunder Lal Hospital had attended to ''Victim No 2'' was brought in casualty on 19.10.06at 1.47 p.m. The witness has deposed that ''Victim No 2'' had multiple stab injuries all over her body, predominantly on the upper chest and abdomen and her neck was slit open. According to her, she was in shock and was immediately taken to ICU. She has testified that tracheastomy tube was put and her 60 respiration was restored. She has opined that injures present on the person of ''Victim No 2'' were dangerous in nature. She has proved treatment record of injured as Ex PW8/A.
56. PW-9 is Dr Uma Rani Swain, was Gynaecologist in Sunder Lal Jain Hospital. She had gynaecologically examined ''Victim No 2''. According to her on gynaecological examination of ''Victim No 2'', she found that whole pubic hair area was stained with fresh blood and there was bleeding and oozing from injuries. According to her, there was fresh injury in the midline of fourchette with bleeding measuring 1cm x 4.5 mm deep, hymen was ruptured posteriorily with multiple small bruises on it. Fourchette cut extended upto hymen. Dressing was done. Undergarments of prerna were sealed and handed over to police. She has deposed that sample of pubic hair, vaginal swab and secretion stained with blood and urine were taken. She has proved her report as Ex PW9/A. 61
57. PW-47 Dr Subhash Aggarwal has also proved that injured ''Victim No 3'' and ''Victim No 2'' were admitted in Sunder Lal Hospital on 19.10.06. She has proved MLC of ''Victim No 3'' as Ex PW2/B, her discharge slip as Ex PW11/B. He has also proved MLC of ''Victim No 2'' as Ex PW2/A. Copies of case sheets of ''Victim No 2 and 3'' have been proved s Ex PW11/A and 11/C.
58. PW-11 Santosh Kumar Upadhyay, record clerk, Sunder Lal Jain Hospital has also proved case note of '' Victim No 2'' as Ex PW11/A and her discharge slip as Ex PW11/B. Medical case note of ''Victim No 2'' have been proved as Ex PW11/C. He has also proved MLC of victim No2 and 3 as Ex PW2/A and 2/B respectively.
59. Thereafter, patient '' Victim No 2 & 3'' were shifted to Apollo Hospital on 19.10.06. In Apollo Hospital, PW-3 Dr Gaurav Singhal had examined '' Victim No 2'' and had found her unfit for statement vide his endorsement Ex PW3/A. PW-7 Dr Sudha Kansal was 62 posted as Sr Consultant in ICU, Apollo Hospital. She had medically examined ''Victim No 2''. According to her, there were multiple abrasions over the neck and chest of the patient. She has proved history sheet of the patient as Ex PW7/A. On 24.10.06 she declared ''Victim No 2'' fit for statement vide her endorsement Ex PW7/B.
60. PW-46 Dr Urvashi Prasad Jha had also gynaecologically examined '' Victim No 2'' in Apollo Hospital on 19.10.06 and found the following injuries on her''
1. her hymen was torn.
2. circumferencial tears were found between hymen and labia minora with slight bleeding.
3. there was tea in fourchette with slight bleeding suggestive of forced sexual vaginal intercourse.
61. She has proved her report as Ex PW46/1.
62. PW-2 Dr M.Arshad had also examined ''Victim No 3'' in Sunder Lal Jain Hospital. According to him, 63 incised wound over anterial aspect of sub mandibular region, left side neck and right index and middle finger were found present. He has proved her MLC as Ex PW2/B.
63. PW-8 Dr Seema Patni of Sunder Lal Jain Hospital had examined MLC of '' Victim No 3'' and gave opinion Ex PW8/B that injuries sustained by her were simple in nature caused by sharp weapon. According to her, she had operated upon ''Victim No 3'' and had done saturing on fingers right index, middle left ring finger, left thumb. She has proved her report in this regard as Ex PW8/C.
64. PW-9 Dr Uma Rani Swain had also gynaecologically examined ''Victim No 3'' and had found that hymen was intact, there was no sign of injury on her private parts. She has proved her report in this regard as Ex PW9/B. PW-44 Sh Santosh Kumar, record clerk, Sunder Lal Jain Hospital has proved prescription slip of '' Victim No 3'' prepared by Dr H.K. Pankaj as Ex 64 PW44/A. Medical evidence in respect of accused
65. PW-4 Dr Rakesh Kumar, CMO, Hindu Rao Hospital had medically examined, accused Sanjay Dass on 20.10.06. According to him, there was no fresh external injury on any part of his body, his pubic area was clean and his sexual characters were well developed. His blood sample was taken. MLC of accused has been proved as Ex PW4/A.
66. PW-6 Dr Hari Gupta, Sr Resident, H.R.Hospital had also medically examined the accused and has stated that there was no sign of fresh external injury. According to him, no abnormality was detected in the accused. His MLC has been proved as Ex PW6/A.
67. PW-12 Dr M.K. Panigrehi had also medically examined accused on 20.10.06. According to him, there was no physical abnormality in the accused and he was conscious and oriental. He has opiend that penis of the accused was well developed adult type and no deformity 65 was present thereon No external injury over the shaft, glance or prepuce of penis of accused was observed by this witness. According to him, accused was capable of performing sexual intercourse. He has proved MLC of accused as Ex PW12/A. Evidence of date of birth of victims
68. The age of '' Victim No 1'', as per record of the prosecution was 4 years. This fact has not been challenged on behalf of the accused. PW-43 is Ms Geeta Arora, Principal of Happy School, Padam Chand Marg, Darya Ganj, New Delhi. According to her, '' Victim No 2'' & 3 were admitted in her school and their date of birth were recorded in the school record as per date of birth certificate issued by MCD. According to her, date of birth of ''Victim No 2'' is 9.10.1989. Certified copy of admission and withdrawal has been proved as Ex PW43/B, certified copy of MCD birth certificate has been proved as Ex PW43/B and certified copy of Admission form has been proved as Ex PW43/C. 66
69. She has also deposed that date of birth of '''' Victim No 3'''' is 28.4.1997. Certified copy of admission register has been proved as Ex PW43/D, certified copy of birth certificate issued from MCD has been proved as Ex PW 43/E and certified copy of admission form has been proved as Ex PW43/F.
70. PW-13 Harish Kumar is sub registrar, Civil Line Zone, Health Department, Delhi. He has stated that as per entry at SlNo 1410 dated 2.5.97 a female child was born to Smt Nirmala Aggarwal wife of Sh Ramesh Aggarwal, Shakti Nagar, Delhi on 28.4.1997. He has proved photocopy of extract of register as Ex PW13/A. This is in respect of ''Victim No 3''.
Evidence collected during investigation
71. PW-19 Hc Jai Kumar was posted in PCR headquarters. He has testified that on the night intervening 18/19.10.06 at about 1.05 a.m. He had received a telephonic call from telephone No 9811042809 that at 6/4 Singh Sabha Road that a servant had killed 67 children. He is deposed to have mentioned this information in PCR form and further communicated the information to PCR van and Senior Officers. He has proved copy of PCR form as Ex PW19/A.
72. PW-20 Hc Pawan Kumar was postedd at PS Roop Nagar as duty officer on 19.10.06. He has deposed that on receipt of information from PCR regarding killing of children at aforesaid address, he recorded DD No 3A Ex PW20/A and gave copy thereof to SI Dharam Pal who left for the spot along with Ct Tej Pal.
73. PW-40 is SI Dharam Pal and PW-25 is Ct Tejpal who had left for the spot on receipt of DD No 3A Ex PW20/A. They have deposed that when they reached home where incident had taken place, they came to know that injured persons had been removed to Sunder Lal Jain Hospital. It was revealed there that servant Sanjay was involved in the incident. In the meantime, SHO Inspector Pratima Sharma along with Inspector Baltej Singh also reached there. It is deposed that they inspected the room 68 of the children where one knife, one underwear , pajami, some hairs, all stained in blood were ling in the room. Blood trills were also found right from room of the children to bedroom of Ramesh Aggarwal, their father. Bedsheet of bedroom of the children as well as of the room of Ramesh Aggarwal were found stained with blood. They are deposed to have inspected the bathroom where another knife stained with blood was found. In the meantime, crime team had also reached the spot. SI Ajay Kumar is deposed to have inspected the site and prepared his report Ex PW27/A.
74. PW-32 Hc Rajpal Singh had taken 11 photographs of the scene of crime from different angles. Photographs have been proved as Ex PW32/A-1 to A-11 and negatives have been proved as Ex PW32/B-1 to B-
11.
75. PW-26 ASI Manish Kumar Bhardwaj, is Finger Print expert. He is deposed to have inspected the site and found one visible blood chance print on electric switch 69 board of the bathroom which was got photographed and after developing the chance print, was sent to Finger Print Bureau, Malviya Nagar. He has proved his report as Ex PW26/A.
76. PW-48 is Inspector Baltej Singh. He is deposed to have taken over investigation of this case from SI Dharampal on the night intervening 18/19.10.06. He had left SI Dharampal at the spot, and he along with Ct Tejpal had reached Sunder Lal Hospital. He has testified that he obtained MLCs of injured. According to him victim No1 was declared ''brought dead'' and victim Nos 2 & 3 were found admitted in ICU. He recorded statement of complainant Ramesh Kumar Ex PW10/A, made endorsement thereon Ex PW28/A and got the case registered by sending rukka to PS through Ct Tejpal.
77. PW-20 Hc Pawan Kumar had recorded FIR in this case. Copy of the FIR has been proved as Ex PW20/B.
78. From Sunder Lal Jain Hospital, Inspector Baltej 70 Singh had returned to the spot. He had taken into possession, two blood stained bedsheets, blood stained pyjami with underwear, one blood stained knife with iron handle, some hairs from the bedsheets of the children and hairs from the floor. Blood samples were also lifted from the bathroom. One blood stained knife was also taken into possession from window of the bathroom. Blood samples were also lifted from the bedroom of the complainant. Blood stained bed sheet from the bedroom of the complainant was also taken into possession. It is deposed that aforesaid articles were first converted into separate pulandas, seals of BS were affixed thereon and thereafter they were seized vide memo Ex PW40/A. Prior to that sketches of knife were prepared which have been proved as Ex PW48/B and 48/C. Site plan of the place of incident has been proved as Ex PW48/D.
79. Dead body of ''Victim No 1'' was got sent to mortuary, postmortem was got conducted. Inquest papers have been proved as Ex PW1/B, PW1/C-7 to PW1/C-11 . 71 Clothes of '' Victim No 1'', sample of his scalp hair, his blood sample were taken into possession vide memo Ex PW33/A. Dead body of '' Victim No 1'' was handed over to relative vide receipt Ex PW8/A.
80. '' Victim No 2 & 3'' were shifted to Apollo Hospital. He has proved his request Ex PW18/F made to the doctor to record statement of the injured but injured were declared unfit for statement.
Evidence of Arrest and disclosure made by accused
81. On 19.10.06 PW-29 Inspector Vimal Kisore along with Hc Yogender and Ct Kamal had been dispatched to Risikesh, Uttranchal in connection with investigation of this case on the basis of a secret information. He is deposed to have received information that accused Sanjay Dass was seen going towards village Tapovan. On the way to Tapovan, on the pointing out of a secret informer, accused Sanjay Dass was apprehended at 6.30 p.m. Accused was arrested vide memo Ex 72 PW28/A and his personal search was conducted vide memo Ex PW28/B. Accused was brought to Delhi on the morning of next day and was handed over to IO of this case.
82. He is deposed to have been interrogated. He is deposed to have made disclosure statement on 20.10.06 regarding whereabouts of clothes worn by him at the time of incident. Disclosure statement of accused has been proved as Ex PW34/A. In pursuance of disclosure statement, accused led the police to the room on the second floor of the house where incident had taken place and which was given to accused to reside. From the roof of that room, accused got recovered one baniyan, pyjama, underwear and handkerchief. Same were converted into pulanda, were sealed with seal of BS and were taken into possession vide memo Ex PW34/B. Accused is deposed to have been got medically examined and his blood sample was taken into possession vide memo Ex PW34/C. 73
83. PW-17 Prem Parkash Aggarwal, brother of the complainant had also witnessed recovery of clothes of accused at his instance on 20.10.06 and has also deposed to the same effect that he got recovered his four clothes from the roof of room which was occupied by him.
84. PW-48 Inspector Baltej Singh has further testified that on 23.10.06, he is deposed to have sent parcel of bed sheet to Finger Print Bureau in sealed condition and its report was collected on the same day but no opinion could be given regarding footprint on the bed sheet due to sample being unfit. On 24.10.06 ''Victim No 2'' was declared fit for statement, therefore, her statement was recorded at Apollo Hospital. Three pulandas duly sealed with seal of Inderprastha Apollo Hospital containing clothes of ''Victim No 2 and 3'' were taken into possession vide memo Ex PW16/A. Blood sample of '' Victim No 3'' collected from Sunder Lal Jain Hospital were taken into possession vide memo Ex PW48/G. On 26.10.06, blood stained clothes/ night suit of ''Victim No 74 3'' were taken into possession vide memo Ex PW10/B after converting them into pulanda and affixing seal of BS thereon.
85. It is further deposed that during the course of investigation, in her statement ''Victim No 2'' had stated that her finger ring was also taken away by accused at the time of incident. He is deposed to have made application before ld M.M. for issuance of production warrants of accused. It is deposed that with permission of ld M.M., accused was interrogated. Accused is deposed to have disclosed that ring of ''Victim No 2'' was lying in his pyjama. It is deposed that pulanda containing pyjama had already been sent to FSL, therefore, it was taken back from FSL and after opening the pulanda, diamond and gold ring was taken out from the pyjama of accused which was taken into possession vide memo Ex PW35/B. Pulanda is deposed to have been resealed with seal of BS and was deposed in the malkhana.
86. PW-36 Dr V.K.Goel, Director, FSL, Delhi has 75 also deposed that on 31.10.06 request was made by the IO of this case for return of pulanda No14 deposited with FSL. It is deposed that pulanda sealed with seal of BS was handed over to IO and receipt in this regard was taken. Photocopy of letter written by IO in this regard has been proved as Ex PW36/A, permission of FSL authorities in this regard has been proved as Ex PW36/B.
87. PW-48 has further testified tht on 4.11.06 TIP of ring was conducted by PW-41 Sh Ajay Goel, M.M. Application for TIP in this regard has been proved as Ex PW41/A, TIP proceedings have been proved as Ex PW41/B. It is deposed by PW-41 Sh Ajay Goel, ld M.M. that during the course of TIP, ring Ex P-18 was identified by '' Victim No 2''.
88. PW-38 SI Manohar Lal had prepared scaled site plan of the place of incident which has been proved s Ex PW38/A.
89. PW-24 Hc Shiv Partap Singh had delivered copies of the FIR to ACP, DCP, ACMM at their 76 residence.
90. PW-16 Sh S.S.Rana, Security Supervisor, Apollo Hospital has deposed that on 24.10.06 he had handed over pulandas of blood sample, clothes of '' Victim No 2'' &3 sealed with seal of Apollo Hospital to the IO which were taken into possession vide memo Ex PW 16/A.
91. PW-15 Sh Ravinder Kumar Kain, Finger Print Expert has deposed that on 14.2.06 he had examined chance print Q-1 but found it unfit for comparison. He has proved his report in this regard which is Ex PW15/B which was made on application Ex PW15/A.
92. PW-42 Hc Arun Kumar is MHCM. He has deposed that on 1910.06 13 pulandas out of which 10 were sealed with seal of BS and 3 were sealed with seal of AAA CH Delhi, were deposited in the malkhana vide entry Ex PW42/A. He has further testified that on 20.10.06 pulandas containing clothes of the accused and another pulanda of blood sample of the accused were deposited in the malkhana vide entry Ex PW42/C. He 77 has also deposed that on 22.10.06, 10 pulandas out of which 2 were sealed with seal of HRH containing pubic hair and scalp hair of accused and other 8 pulandas, conaining clothes of ''Victim No 2 and 3'', vaginal swab, urine sample, pubic hair were deposited in the malkhana vide entry Ex PW42/D. On 24.10.06 four pulandas having stamp of Apollo Hospital and containing clothes of Victim No 2 & 3 were deposited in the malkhana vide entry Ex PW42/E. He has also testified that on 26.10.06 one pulanda sealed with seal of BS containing top and pyjama of victim No3 was deposited in the malkhana vide entry Ex PW43/F.
93. He has further testified that on 23.10.06 pulanda No1 was sent to Finger Print Bureau through SI Rishipal. He has further deposed that on 30.10.06 30 pulandas were sent to FSL through Ct Ramesh Chand vide RC Ex PW42/G. PW-31 Ct Ramesh Chand has also deposed to the same effect that on 30.10.06 he had deposited 30 pulandas in FSL, Rohini.
78
94. On 31.10.06, PW-42 Hc Arun Kumar is deposed to have received two pulandas sealed with seal of BS and same were deposited in the malkhana vide entry Ex PW42/H. On 4.11.06, pulanda bearing Sl No 31 was handed over to Inspector Baltej Singh for TIP and he had made entry in this case which is Ex PW42/I. It is further deposed that on 6.11.06 pulanda bearing Sl No 14 and 31 sealed with seal of BS and AG were sent to FSL through Ct Ramesh Chand vide RC No 109/21. Entry in register No 19 in this regard has been proved as Ex PW42/J and copy of RC has been proved as Ex PW42/K. Forensic Evidence
95. On 30.10.06 30 pulandas were sent to FSL for analysis. PW-37 is Mrs Aita Chhari, Senior Scientific Assistant, FSL, Rohini. She has testified that she had carried out blood examination, semen examination and hair examination on exhibits received in her office. As per her reports Ex PW37/A and Ex PW37/B, human blood was detected on (1) pyjami and under wear of 79 ''Victim No 2'', (2) top and pyjama of ''Victim No 3'', (3) kurta, pyjama and underwear of ''Victim No 1'', (4) on the two bedsheets spread in the bedroom of victims as also on the bedsheet spread in the bedroom of complainant on which ''Victim No 2'' had fallen and (5) on knife Ex P-9 ( which had stuck in the neck of '' Victim No 1'') as also on knife Ex P-10 which accused had brought from the kitchen. As per report Ex PW37/C, human blood was also detected on pyjama, underwear and baniyan which accused was wearing at the time of incident.
96. As per reports referred to above, blood group of victims was ''O''. Blood of ''O'' group was detected on underwear Ex P-2 of ''Victim No 2'', pyjama Ex P-4 and under pant Ex P-22 of '' Victim No 3'', baniyan Ex P-8 of accused Sanjay Dass, on knife Ex P-10 which he had brought from kitchen and is deposed to have inflicted injuries on the person of victims, kurta, pyjama and baniyan Ex P-12 to P-14 of ''Victim No 1'', on two bedsheets Ex P-15 and P-16 spread in 80 bedroom of victims as also on the bedsheet Ex P-17 spread in the bedroom of parents of victims. She has stated that regarding semen stains on underwear and pyjama, no opinion could be given due to inconclusive result. She has proved her reports in this regard as Ex PW37/C and Ex PW37/D.
97. It has been argued by Addl PP that it has been proved on record that accused was employed by the wife of the complainant as domestic aid on 14.10.08 and this fact has not been disputed by the accused. It is argued that accused remained at the house of the complainant till night intervening 18/19.10.06 and thereafter he was found missing. It is argued that ''Victim No 2 and 3'' are the injured witnesses who had sustained injuries at the hands of accused, therefore, their presence at the spot can not be doubted. It is also argued that testimony of '' Victim No 2 & 3'' is the primary evidence of the incident in which both have stated that it was the accused who had slit throat of ''Victim No 1'', had made attempt on the lives of 81 '' Victim No 2 & 3'', he had committed rape on ''Victim No 2'' and had committed robbery of fold diamond ring of ''Victim No 2'' on her finger by forcibly removing her gold and diamond ring from her finger. He has argued that testimony of ocular witnesses is duly corroborated by medical evidence and recovery of clothes worn by the accused at the time of incident. These clothes have been found to be stained with human blood. He has argued that there are no reasons to disbelieve the testimony of victims, therefore, case of the prosecution stands proved beyond reasonable doubt.
98. On the other hand, ld Amicus Curiae for accused has argued that incident is alleged to have taken place on the night intervening 18/19.10.06 at 12.40 a.m. whereas FIR in this case was recorded at 6.05 a.m. and thus there was a delay of five and half hours in loding of FIR. He also argued that wife of the complainant remained with SHO from 1.30 a.m. to 4.00 a.m., had visited PS Roop Nagar also but her statement was not recorded, therefore, 82 it is a circumstance which casts a serious doubt on the veracity of the prosecution story.
99. In their statements, ''Victim Nos 2 & 3'' ( i.e. PW- 21 and PW-22) both have stated that incident had taken place at night on 19.10.06 at about 00.45 hours. FIR in this case was recorded at 5.00 a.m. Rukka has been proved as Ex PW48/A. It was dispatched for PS at 4.50 a.m. PW- 48 Inspector Baltej Singh in his testimony has given reasons for delay in sending rukka and recording of the FIR. According to him, condition of mother of victims was not good. Even as per endorsement of the Doctor in Ex PW2/A and Ex PW2/B ( MLC of '' Victim No 2 & 3'') which was made at 5.00 a.m. on 19.10.06, both the victims were not fit for statement because of tracheastomy.
100. In Ashok Kumar Chaudhary vs State of Bihar AIR 2008 SC 2436, it was held that merely because of delay in lodging FIR, prosecution case can not be thrown out if delay is properly explained. In the case in hand, 83 complainant had only one son i.e. ''Victim No 1''. Accused had slit his throat and he was lying with knife stuck up in his neck at home. Victim nos 2 & 3 had also been attacked by the accused on their necks and because of injuries, they were not in a position to narrate the incident. Even they were declared unfit for statement by the Doctor and there appears an endorsement in this regard in MLC of victims Ex PW2/A and Ex PW2/B. All the three children were bathed in blood, the life of only son was at stake, one can well imagine the mental stage of a mother and father in such a situation, so, their mother was also not in fit statement of mind to give statement. Therefore, only alternative available with the police was to record statement of father of the victims which they did by 4.50 a.m. and thereafter FIR was recorded at 5.00 a.m. In this situation, it can not be said that there was delay in lodging FIR.
101. In Ramdas and others vs State of Maharastra 2006 AIR SCW 5675, it has been held that there may be 84 cases where there is direct evidence to explain delay. Even if in the absence of direct explanation, there may be host of circumstances appearing on record which may provide reasonable explanation for the delay. The circumstances brought on record provide sufficient explanation for delay.
102. It has been argued by ld Amicus Curiae that neither victim Nos 2 nor '' Victim No 3'' raised any alarm when they were assaulted and thus conduct of these two victims is incompatible with involvement of accused in the present case. Secondly, it is argued that according to PW-10 Ramesh Aggarwal, both the ''Victim Nos 2 & 3'' were crying loudly which shows that there was no disability on their part to speak, therefore, it is a circumstance which negatives the hypothesis that accused was involved in the present case.
103. While evaluating this argument, it should be noted that there is no universal pattern of human behaviour in response to a particular stimuli or situation 85 in a particular incident. All depends upon attitude or personality of a person how he will respond to a given situation. But while evaluating the conduct and deciding whether conduct is incompatible with guilt of any person, factors which are required to be kept in mind are age, sex of victims, attendant circumstances in which they were placed, apprehension of more harm are some of the circumstances which bring change in the behaviour of a person.
104. In the present case, ''Victim No 2'' was 17 years of age whereas ''Victim No 3'' was 9 years of age. They had seen the accused slitting throat of their brother with their own eyes. According to testimony of PW-1 who conducted postmortem examination the dead body of '' Victim No 1'', throat was slit just below apple of Adam. When throat is slit in such a fashion, blood gushes out of the wound. I have seen the photographs of the room where incident had taken place which are exhibited as Ex PW32/A-1 to A-11. The whole of the floor is splattered 86 with blood. Accused had inflicted injuries on the neck of ''Victim Nos 2 & 3'' also. ''Victim No 2'' had been raped by accused. In such a mahem a child of 17 years and 9 years of age respectively can not be expected to behave in such a fashion as to raise a noise. Accused indulged in a killing spree by repeatedly inflicting injuries with knife on ''Victim No 1 to 3'' turn by turn. and such a spectacle was sufficient to send a chill through spine of a man of strong nerves. Circumstances were such which as make children of tender age like ''Victim Nos 2 & 3'' stunned and dumb founded, therefore, it can not be expected that person placed under such circumstances would behave normally.
105. In Shivappa and others vs State of Karnataka AIR 2008 SC 1860, it was held that in the circumstances, witness becomes dumb founded and can not shout, then conduct keeping in view the nature of offence was probable. In Vijay Pal Singh vs State of NCT of Delhi, AIR 2001 SC 2405, where a mother was a witness to 87 murder of her son and no hue and cry was raised by her when son was shot at, in that situation it was held that no fixed pattern of natural behaviour can be laid down as different persons would react differently. In this scenario, it was held that evidence of mother could not be doubted.
106. Ld Amicus curiae has further argued that accused is alleged to have sneaked into the room of children with knife with which he is alleged to have assaulted '' Victim No 1'' and which had stuck up in his neck. He has argued that PW-48 Inspector Baltej Singh in his testimony has stated that knife Ex P-9 was recovered from the room itself whereas PW-10 Ramesh Aggarwal, complainant, has stated that knife had been carried away by the accused. It is also argued that PW-23 Smt Nirmal Aggarwal had stated that her husband had removed the knife from the neck of '' Victim No 1'' and had thrown the same on the floor. It is argued that when the knife had been carried away by the accused, then the recovery of 88 knife Ex P-9 from the place of incident is mysterious.
107. PW-10 Ramesh Kumar Aggarwal was examined on 16.5.07. In his statement, he has described the knife as having handle of iron, it was an old one and it did not belong to his house. He has also stated that he had pulled out the knife from neck of ''Victim No 1'' and had thrown it on the floor and said knife was taken away by Sanjay Dass. He was cross examined on 7.12.07 and in his cross examination, he had specifically explained that he had removed the knife from neck of his son which was left at the spot. According to him, the knife remained there at the spot when he had left for hospital but when he came back home at 10.00 a.m. he did not find the same.
108. PW-48 Inspector Baltej Singh is specific that knife Ex P-9 was there in the room where the incident had taken place and same was taken into possession from there. It is not the case of complainant Ramesh Kr Aggarwal that he had seen the accused leaving the house. He has given explanation about the knife. PW-48 89 Inspector Baltej Singh is specific that knife Ex P-9 was recovered from the room where incident had taken place. PW-48 had taken the knife into possession at the place of incident whereas complainant was in the hospital and did not come to his house. PW-32 Hc Raj Pal Singh has proved the photographs of the room where the incident had taken place. In photograph Ex PW32/A-1 a knife of the same description appears lying in the pool of a blood. Therefore, I do not find any inconsistencies in the testimony of witnesses so far as recovery of knife is concerned.
109. Ld Amicus Curiae has further submitted that in the report of FSL, knife Ex P-9 ( Ex P-4 shown in report Ex PW37/A and 37/B) no blood was detected on it, therefore, it is suggestive of the fact that same had been subsequently introduced.
110. I have perused the reports Ex PW37/A , 37/B and Ex PW37/C respectively. Iron handled knife Ex P-9( Ex 4 given in report Ex PW37/B) human blood was traced 90 thereon. However, the group of the blood could not be detected. The second knife which accused had brought from the kitchen has been given as Ex P-10 in the evidence ( Ex 8 given in report Ex PW37/B). On this knife human blood of O group was detected. It, therefore, can not be said that no human blood was detected on Ex P-9 or it has been subsequently introduced or that recovery of this knife is doubtful.
111. It may be mentioned that according to reports of FSL, the blood gauze of ''Victim No 1'' was sent for analysis and according to report Ex PW37/B, the blood group of deceased ''Victim No 1'' was found to be O group. The shirt, baniyan, underwear of the deceased which were taken into possession by police were sent to FSL, they were given exhibits 13a, 13B, 13C and 13d in report Ex PW37/B. They have been given Ex P-11 to P- 14 when in the court when they were exhibited. On shirt, pyjama and baniyan, 'O' group of blood was detected whereas on underwear of deceased human blood was 91 detected. It, therefore, can not be said that knives were not used by accused in commission of the offence or there is any kind of reasonable doubt about their recovery from the place of incident.
112. It has further been argued by ld Amicus Curiae that recovery of clothes at the instance of accused is doubtful inasmuch as there is a variance in the testimony of witnesses as to in whose presence they were recovered. He has argued that recovery of clothes t the instance of accused is a manipulation to fasten the accused in this case.
113. Ld Amicus Curiae has pointed out that PW-35 Rakesh Dixit has stated in his statement that clothes were recovered from roof of the room on 2nd floor and it was Rishi Pal who had climbed the ladder to reach the roof. According to him Prem Parkash was not on the roof at the time of recovery of clothes. He has also pointed out that according to PW-17 Prem Parkash, clothes were taken away by the police but they were not sealed, hence, the 92 prosecution story that they were sealed into a pulanda at the place of incident is doubtful. He has also pointed out that testimony of PW-17 clearly shows that no memos were prepared at the place of incident and that recovery memos in this case were fabricated subsequently and signatures of Prem Parkash were obtained there.
114. I do not find any force in this contention. PW-29 Inspector Vimal Kishore had arrested the accused from Rishikesh on 19.10.08 at about 6.30 p.m. He was brought to Delhi and around 1.15 a.m. On 20.10.06 he was handed over to police of PS Roop Nagar. PW-48 Inspector Baltej Singh had interrogated the accused in PS Roop Nagar and he had made disclosure statement Ex PW34/A about whereabouts of clothes which were worn by him at the time of incident. Thereafter he is deposed to have taken the police to the house of the complainant and from the roof of the room on the second floor which was given to him for his residence, he got recovered one pyjama, underwear, handkerchief and baniyan which 93 were sealed by him with the seal of BS and were taken into possession vide memo Ex PW34/B.
115. It is argued by ld Amicus Curiae that disclosure statement Ex PW34/A is not signed by any independent witness but by SI Rishipal and Ct Sanjay Kumar which raises a doubt on the veracity of alleged disclosure statement.
116. All the witnesses are certain that all the clothes were recovered from atop the roof of the room in which he had been residing. Recovery memo Ex PW34/B mentions that one underwear of cherry colour, one handkerchief, one tracksuit and pyjama having three orange colour stripes were sealed in pulanda with seal of BS. This memo has been signed by Prem Parkash Aggarwal. The recovery had taken place on 20.10.06 whereas evidence of this witness was recorded in the court on 26.5.07 and was cross examined in the court on 4.2.08. He had identified clothes Ex P-5 to P-8 as the same which were recovered from the roof of the room 94 built on the second floor. He is specific that police personnel had climbed on the roof with the help of make shift ladder. It is, therefore, clear that accused had led the police party to the room which was given to him to reside by the complainant. He had for the first time disclosed his knowledge about certain clothes to the IO of this case which to his knowledge were lying at a certain place i.e. on the roof top of his own room. It is true that there is a slight variation in the testimony of witnesses, so far as specific role performed by a particular witness in recovery of clothes, but such variations are hardly of any significance. It stands proved on record that it was the accused who had furnished the information that his clothes were lying on roof of the room which was given to him to reside. He led the police party from the top of the roof of that room, his clothes Ex P-5 to P-8 were recovered.
117. In Mohd Inaytullah vs State of Maharastra AIR 1976 SC 483 their lordships of Hon'ble Supreme Court 95 had decided the scope and relevancy of a statement made by the accused U/s 27 of the Evidence Act. It was held that whole of the statement of the accused does not become admissible. It was held that all parts of statement of confessional nature are to be excluded. Only that portion of the statement which ''distinctly relates to the facts discovered'' in consequence of information furnished by the accused are relevant. In other words, disclosed fact which are relevant would be (i) recovery of a particular object in consequence of information given by the accused (ii) knowledge of the accused as to place from where it had been recovered and ( iii) knowledge of the accused as to the presence of that articles at that particular place. In the factual matrix of a particular case, the court has to draw inference if the recovery effected at the instance of the accused connects him with the alleged offence.
118. In view of this authority, I am of the view that part of the information given by the accused is admissible 96 to the extent that to his knowledge certain clothes were lying on the roof of the room on the second floor in which he had been residing, clothes Ex P-5 to P-8 were lying. I am, therefore, of the view that it can not be said that clothes Ex P-5 to P-8 were not recovered at his instance.
119. So far as argument regarding preparation of recovery memo Ex PW34/B is concerned or sealing the recovered clothes Ex P-5 to P-8 into pulanda with seal of BS is concerned, in Ex PW34/B it has been specifically mentioned that clothes were recovered were sealed into pulanda with seal of BS and were taken into possession. This recovery memo has been signed by PW-17 Prem Parkash Aggarwal in his own handwriting. He must have gone through this memo before he signed it. It is not his case that he did not sign this memo on place of recovery. It is not case of PW-17 that he had signed Ex PW34/B in the PS. Rather in his examination in chief, he is specific that after recovery of clothes they were sealed 97 into pulanda with seal of BS and were taken into possession Ex PW34/B. In view of the reasons given above, I am of the view that it can not be said that there is any kind of doubt about recovery of clothes Ex P-5 to P-8 at the instance of the accused. Even otherwise, there is no doubt about prosecution case tht they were sealed in pulanda with seal of BS and were taken into possession at the place of recovery.
120. It has further been argued by ld Amicus Curiae that ''Victim No 2'' ( PW-21) has specifically stated that she had pulled hair of accused and some of his hairs had come into her hand which were taken into possession by the police. It is also submitted by him that he was subjected to medical examination and sample of his scalp hair were also taken and both questioned hair and sample hairs were sent for comparison to FSL but report is negative, therefore, there is nothing on record to connect the accused with the hairs recovered from the place of incident.
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121. No doubt after the accused was arrested, he was sent to H.R. Hospital where his blood sample, sample of scalp hair and pubic hair were taken. Some of the hairs had also been recovered from the spot. They were sent to FSL and report Ex PW37/A has been received. The report regarding these hairs is that they were human hair in origin, however, no specific report has been given in respect of these hairs. But absence of any specific opinion regarding similarity between the hairs recovered from the place of incident and sample scalp hair of the accused is not the conclusive. There is substantial corroborative evidence on record which go to corroborate testimony of ''Victim No 2 and 3''.
122. In FSL report Ex PW37/B, bedsheets recovered from the bedroom of victims were stained with human blood of 'O' group. The knife with which '' Victim No 1'' was assaulted and given Ex P-9 ( Ex 4 in FSL report) was stained with human blood. The second knife which accused had brought from kitchen Ex P-10 (Ex 8 in FSL 99 report) has been opined to be stained with human blood of 'O' group. Shirt, pyjama, baniyan and underwear of '' Victim No 1'' have been opined to be stained with human blood and except underwear all other clothes were stained with human blood of 'O' group. Clothes worn by '' Victim No 2'' were stained with human blood, underwear was stained with human blood of 'O' group, similarly T shirt and pyjama worn by ''Victim No 3'' were found stained with human blood and pyjama specifically with blood group of O.
123. The clothes of the accused which were worn by him at the time of incident and which were recovered from atop the roof of his room were sent for expert opinion to FSL. They have been given Ex 14a,14b, 14c and 14d in report of FSL Ex PW37/A, Ex PW 37/C and Ex PW 37/D. Blood was detected on all these clothes except 14d. Similarly human semen was detected on Ex 14b and 14c i.e. underwear and pyjama of accused. The presence of blood and human semen on the clothes of the 100 accused is important corroborative evidence to corroborate the testimony of ''Victim No 2 and 3'' that it was he who is the author of the crime.
124. After interrogation of the accused, he had made disclosure statement about clothes worn by him at the time of incident which he had thrown on the roof of the room in which he had been residing. He led the police party to the room referred to above and got recovered his clothes from atop the roof of the room, they were sealed in pulandas and were sent to FSL. PW-48 Inspector Baltej Singh, IO in this case has specifically stated that when accused was interrogated regarding whereabouts of gold ring of ''Victim No 2'' with permission of the court. He had disclosed that ring was lying in the pocket of his pyjama. IO is deposed to have moved an application before FSL for return of the pulanda, brought it back, opend it and the ring was recovered from the pocket of pyjama. TIP of the ring was conducted by ld M. M. TIP proceedings in this regard have been proved as Ex 101 PW41/B. In the course of TIP, ring was identified by '' Victim No 2''. Recovery of ring removed by the accused from the finger of ''Victim No 2'' is a circumstance which corroborates the testimony of ''Victim Nos 2 & 3''.
125. Ld Amicus Curiae has submitted that according to report of FSL, blood group on the clothes of the accused is opined to be O group but there is no evidence on evidence as to what was blood group of the accused. According to him if the blood group of accused is also O, the presence of blood on his clothes as also traces of human semen is hardly of any incriminating value.
126. It is true that blood sample of the accused sent to FSL putrified and no opinion could be given about his blood group. It is also true that there is no evidence on record as to what is the blood group of the accused. But one fact is clear that blood group of ''Victim No 1'' was O. All the three bedsheets taken into possession are opined to be stained with human blood of group O. No doubt even blood sample of ''Victim No2 and 3'' putrified and 102 no opinion regarding their blood group has been given. However, accused has given no explanation as to how human blood came on his clothes. It is not his case that he had sustained any injury. It is not his case that he had entered into any fight with any person. The incident had taken place on the night intervening 18/19.10.06 around 12.20 a.m. Thereafter accused had absconded. His blood stained clothes were recovered from roof of his room where he had been residing. It is not his case that he was not wearing the clothes exhibited in the court and which are stained with human blood on the day of incident.
127. He was arrested on the evening on 19.10.06 from Rishikesh and was brought to Delhi. From these circumstances, it can safely be inferred that soon after the incident he had changed clothes and had thrown blood stained clothes worn by him at the time of incident on the roof of the room in which he was residing. If he had gone out in those very clothes stained with blood, it would have aroused the suspicion of police and would 103 have led to his apprehension. In the factual matrix of the case, accused changed clothes and threw blood stained clothes on the roof of his room was consistent with his guilt. In the absence of any explanation from the side of the accused, it can not be said that evidence produced against the accused does not corroborate the prosecution case.
128. It has further been argued by ld Amicus Curiae that according to report of FSL regarding analysis of vaginal swab of '' Victim No 2'', no epithelial cells were detected from the clothes of the accused and if at all he had committed rape, such cell would have been there on his clothes. It is argued that circumstance shows that accused is innocent.
129. The incident had taken place at 00.45 hours on the night intervening 18/19.10.06. Accused was arrested on evening of 19.10.06, he was brought to Delhi on 20.10.06. His clothes were recovered on 20.10.06. The clothes were exposed to the sunlight. Secondly, if 104 epithelial cell could not be detected on his clothes, it does not mean that statement of the victims should not be believed. Both the victim Nos 2 and 3 ( PW21 and 22) in their testimony have given a vivid description of course of events which had taken place. They have specifically named the accused to be the person responsible for the episode. It is not his case that he was not employed in the house of the complainant. He has not denied that upto 11.00 p.m. On 18.10.06 he had been serving the complainant. He has not even disputed that soon after the incident i.e. night intervening 18/19.10.06 after 12.45 a.m. he was found missing from the house. He fled away to Rishikesh from there he was arrested. No plausible explanation has been given as to why he fled away from the house of the complainant.
130. Ld Addl PP has submitted that charge against the accused was framed by my ld Predecessor on 9.3.07 and he had moved application before the court that he wanted to plead guilty but same was declined. He has submitted 105 that when his application was rejected by this court, he moved an application before ld CMM for getting his statement U/s 164 Cr.P.C. recorded which was assigned to ld M. M. who recorded statement of the accused in which he made a confessional statement which may be taken into account. On the other hand, ld Amicus Curiae has submitted that when application of the accused to plead guilty had been rejected by the court, his statement U/s 164 Cr.P.C. carries no meaning and the same can not be read against him.
131. Accused had moved an application in this case that he wanted to plead guilty. That application was rejected vide order dated 16.5.07. The reason for rejection was that when the charges were framed against the accused, he had pleaded not guilty. When accused had not pleaded guilty, trial must continue and cultimate in its logical conclusion. He again moved application before me which was disallowed vide my order dated 17.1.08. Then he moved an application before ld ACMM 106 for getting his statement recorded U/s 164 Cr.P.C which was marked to ld M.M. who recorded his statement U/s 164 Cr.P.C. which was received in this court from court of ld M. M. Accused had moved an application for inclusion of his statement U/s 164 Cr.P.C. in evidence. In my opinion, a Magistrate entertains the jurisdiction to record statement U/s 164 Cr.P.C., either confessional statement of the accused or statement of a witness, only during the course of investigation. Once the investigation is over and challan has been filed against the accused, he ceases to have jurisdiction to record a confessional statement as provided U/s 164(1) Cr.P.C. Secondly, in the present case, accused is not the witness but is an accused. Therefore, even if he moved an application before ld M.M. since trial of the accused was going in this court, he did not have any authority to record the confessional statement. When he did not have any authority to record confessional statement during the course of trial, no cognizance can be taken of such a 107 confessional statement.
132. There is another reason to discard the alleged statement of accused made U/s 164 Cr.P.C. A confessional statement is a statement in which accused admits the facts in term of the offence or nearly all the facts which go to constitute an offence. A statement made by the accused containing exculpatory statement can not be said to be a confessional statement.
133. In the present case, accused has made a statement which is inculpatory as well as exculpatory in nature. Therefore, such a statement does not qualify to be a confessional statement, hence, can not be taken into account.
134. It has further been argued by ld Amicus Curiae that ''Victim No 3'' in her testimony has not specifically stated that ''Victim No 2'' was raped by accused. According to him, her version was that accused had laid himself on her sister which had been stated by her as a 'bad act'. He has argued that her further version is that '' 108 Victim No 2'' was raped twice by the accused and time gap between first act and second act was only half a minute. He has argued that first of all, she is not specific about the rape and secondly, if at all her reference is construed to be reference of act of sexual intercourse by accused, successive sexual intercourse with a difference of about half minute is unbelievable.
135. On the other hand, ld APP has submitted that '' Victim No 2'' ( PW 21) has specifically deposed that she had been raped by accused and her testimony is corroborated by medical evidence which rules out any kind of embellishment in the prosecution case.
136. The age of ''Victim No 3'' is about 9 years. In my opinion at such an age, a child can not be supposed to have any idea about attributes of act of ''rape''. The course of events deposed by her are quite natural compatible with version expected of a child. She has specifically stated that accused had laid himself on ''Victim No 2'' twice and difference between two acts was 109 half a minute. In my considered opinion that is the natural narration of an incident by an eye witness suited to her age. Secondly the act of sexual intercourse having been performed with the gap of half a minute is can not be said to be impossible.
137. '' Victim No 2'' ( PW-21) in her statement has specifically stated that accused had given a knife blows on her neck, thereafter, he removed her pyjama and pant, he removed his own clothes and tried to rape her. She is also specific that she took a turn to save her, but he again gave a knife blow at her back, accused made her straight on the floor and committed rape upon her. She has also stated that he put her on the bed of ''Victim No 3'' and again tried to rape but she was not in such a mental condition as to comprehend what had happened and she fell down from the bed. She was medically examined by Dr Uma Rani Swain for the first time in Sunder Lal Hospital and her MLC has been proved as Ex PW2/A. She has found that there was fresh injury in the midline of 110 fourchette with bleeding, hymen was ruptured with multiple small bruises, fourchette cut extended upto hymen.
138. Subsequently she was removed to Apollo Hospital where she was examined by Dr Urvashi Parsad Jha PW-46. She has proved her MLC Ex PW46/1. She has also opined that hymen was torn, there were circumferential tears between hymen and labia minora with slight bleeding. There were tears in fourchette with slight bleeding and aforesaid injuries suggested forced sexual vaginal intercourse. She had examined the patient from gynaecological point of view. The medical evidence of these two gynecologists clearly goes to prove that '' Victim No 2'' had been forcibly raped.
139. Ld Addl PP has submitted that even in his statement U/s 313 Cr.P.C., accused has admitted that he had slit the throat of '' Victim No 1'', and had committed rape on '' Victim No 2'' which is an admission on his part.
140. Ld Amicus Curiae has submitted that accused had 111 also made disclosure of certain facts as to how he was treated by the complainant and that also should be taken into consideration.
141. Statement of accused U/s 313 Cr.P.C was recorded in this case. In answer to the question, he had admitted that on 18.10.06 victim Nos 1 to 3, complainant and his wife and he himself were watching TV in the bedroom of the complainant and at about 10.30 ''Victim Nos 1 to 3'' had retired to their bedroom. He has also admitted that at about 11.00 p.m. the complainant and his wife also retired to sleep and he went to his own room to sleep. He also admitted that at 12.00 night, he sneaked into bedroom of victim Nos 1 to 3, however, he has denied that he gave knife blows on the neck and hands of ''Victim No 3''. He has even admitted that he was present in the bedroom of victim Nos 1 to 3 but has denied that he gave knife blows to victim Nos 1 to 3 at that time. He has also admitted that he gave knife blows to '' Victim No 2''. He has also admitted that he inflicted injuries on the 112 neck of '' Victim No 1'' and the knife stuck up in his neck. He has admitted that he had brought another knife from the kitchen and gave knife blows on ''Victim No 2''. He has also admitted that he committed rape upon ''Victim No 2''.
142. At the end, he has stated in his statement that after he had joined house of the complainant, the complainant Ramesh Kumar used to ask him to massage him with oil. According to him, he used to ask him to spread mattress on the floor, ask him to bolt the door, he used to lie down on the mattress and asked him to massage him on the allurement of Rs 100 or 150 extra. According to him, complainant used to wrap a towel around his waist and did not have any undergarments on his body, he would remove the towel and would ask him to massage his penis, to masturbate him and not to disclose all these secrets to his wife. According to him, he also used to compel him to have homosexual relations with the complainant and which he did. He has stated 113 that these things were repeated by the complainant regularly.
143. First of all, I may mention complainant Ramesh Kumar was examined in the court on 16.5.07, and he was subjected to cross examination on 26.5.07. No question was put to him eliciting information on the facts stated by the accused in his statement. He was recalled for cross examination on 7.12.07 when he was duly represented by an Amicus Curiae. Ld Amicus Curiae had had an interview with the accused before conducting the case. No such suggestions were put to this witness.
144. Rather it should be noted that PW-5 Gurpreet singh was examined on 16.5.07. After his examination in chief was over, legal aid counsel was present and at that time he repeatedly stated before the court and he was remorseful of his act and in order to clear his conscience, he admitted the acts done by him. At that time, he had also stated before my ld Predecessor that having seen '' Victim No 2'' taking bath, he could not control himself, 114 therefore, went to her room and since she tried to call her parents, he inflicted injuries on her person in order to commit sexual intercourse.
145. It is well settled law that any fact which is admitted by accused in his statement U/s 313 Cr.P.C, can be read against him. In his statement U/s 313 Cr.P.C he has admitted that on 14.10.06 he was employed by wife of complainant as domestic aid and on 18.10.06 at midnight he had sneaked into bedroom of ''Victim Nos 1 to 3''. He has admitted the fact that he gave two knife blows to victim No2 but has denied having given any knife blows to '' Victim No 1'' and 3. However, he has admitted that knife which he used in inflicting injuries on neck of '' Victim No 1'' stuck up in his neck and he brought another knife from the kitchen and gave blow with the knife on '' Victim No 3'' as well as ''Victim No 2''. He has taken contradictory stand if he slit the throat of '' Victim No 1''. However, he is definite that the knife stuck up in the neck of ''Victim No 1''. He has also taken 115 contradictory stand on the point if he gave any knife blow to ''Victim No 2''. However, it is admitted by him that he had committed rape upon ''Victim No 2''.
146. When accused has not disputed that he was employed with complainant and on fateful day he had sneaked into bedroom of '' Victim No 1'' to 3, had forcibly raped ''Victim No 2'', are admissions on his part of offences alleged against him. This is an additional ground to believe the testimony of ''Victim No 2 and 3''.
147. The testimony of '' Victim No 2 and 3'' can not be disbelieved inasmuch as they are the witnessed who had sustained injuries. Injuries on ''Victim No 2'' were present on her neck and back side of her body. Injuries on ''Victim No2'' have been opined to be dangerous. Injuries on ''Victim No 3'' are also present on the neck and fingers of the hands. This shows that she had tried to resist the attack of the accused and in that process, she had sustained injuries. No explanation is forthcoming from the side of accused, as to how ''Victim No 1'' 116 happened to sustain fatal injury on his neck. Accused has admitted his presence in the room and has also admitted that he had forcibly raped ''Victim No 2''. Therefore, I am of the view that version as given by ''Victim No 2 and 3'' can not be doubted in any manner.
148. No other point has been argued on behalf of the accused.
149. In view of above discussion on the basis of evidence on record the following facts stand proved on record conclusively and beyond reasonable doubt emerge against the accused:-
(1) On 14.10.06 accused was employed as a domestic aid by the wife of the complainant and this fact has not been disputed by the accused.
(2) On 18.10.06 victim No1 to 3 along with their parents and the accused were watching TV in the bedroom of the complainant.
(3) At about 10.30 p.m. Victim Nos 1 to 3 had retired to their bedroom.
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(4) At about 11.00 p.m. the complainant and his wife also went to sleep and accused also retired to his room on the second floor of the house of the complainant, these facts have not been disputed by the accused.
(5) At about 12.45 a.m. accused sneaked into the bedroom of '' Victim No 1'' to 3 and kept the knife on the neck of '' Victim No 3'' and her movements attracted the attention of '' Victim No 2''.
(6) '' Victim No 2'' switched on the light and accused was found sitting in between her bed and bed of '' Victim No 3''.
(7) When '' Victim No 2'' tried to open the door of the bedroom, he gave knife blows on left side of her back as a result of which she fell down.
(8) '' Victim No 3'' when tried to cry, accused gave knife blows on her person and asked her to remove her under pant and when in order to save her, she asked accused to allow her to take water, he asked her to take water from the bathroom itself.
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(9) When '' Victim No 3'' went to the bathroom to take water, ''Victim No 1'', aged 4 years, brother of '' Victim No 2 & 3'' had followed her and when he was in the process of entering the bathroom, accused caught hold of him from his neck, picked him up while holding him from his neck, slit his throat and threw him on the bed and the knife stuck up in his neck.
(10) Accused went out of the room to the kitchen and brought another knife and again gave a knife blow on ''Victim No 3''.
(11) With the same knife, accused gave a blow on the neck of '' Victim No 2'' and asked her to remove her clothes.
(12) He removed his own clothes and tried to rape '' Victim No 2'' and when she tried to save her he gave knife blows on her back.
(13) Accused straightened ''Victim No 2'' on the floor and forcibly committed rape upon her twice.
(14) While leaving the room, he removed gold 119 ring from the left hand of ''Victim No 2''.
(15) He checked if victim No 2 was alive by placing her fingers against her nostrils and thereafter fled away.
(16) He washed himself in the bathroom and left the kitchen knife in the bathroom from where it was recovered.
(17) ''Victim No 2'' went to bedroom of her parents and informed them that it was the accused who had caused injuries on their person and had raped her.
(18) All the three victims were removed to Sunder Lal Jain Hospital where they were medically examined. ''Victim No 1'' was declared ''brought dead'' in the said hospital.
(19) According to postmortem report, there was punctured wound sizing 1.8 x 0.5 cm just below apple of Adam and two small deep cuts on left mandible. Left side common carotid artery and left internal jugular vein were completely severed. There was left side cut inter 120 chea just near its starting point exposing its canal.
Trachea was full of blood clots. The depth of the wound was about 5 cm.
(20) Cause of death has been opined to be asphyxia consequent upon choking of trachea ( windpipe) by blood clots as a result of injury to major vessels of left side neck by sharp, cutting, penetrating and straight weapon.
(21) Incised wound over anterior aspect of the neck and multiple incised wound over the back were found on '' Victim No 2''.
(22) Injury on the person of '' Victim No 2'' were opined to be ''dangerous''.
(23) Incised wounds over the anterior aspect of sub mandibular region and left side neck and on right index and middle finger were found on the person of '' Victim No 3''. These injuries were opined to be simple.
(24) Accused absconded soon after the incident and was arrested by police from Risikesh on 19.10.06. 121
(25) On interrogation, he had made a disclosure statement about blood stained clothes worn by him at the time of incident and he got recovered his clothes ( Underwear, baniyan, pyjama, handkerchief and ) from atop the room on the second floor of the house in question he had been residing in.
(26) These clothes were sent to FSL and as per report of FSL on his baniyan was stained in human blood of 'O' group and underwear and pyjama were opined to be stained with human blood.
(27) Underwear and pyjama of accused which he was wearing at the time of incident were found stained with human semen.
(28) After recovery of blood stained clothes at his instance when he was interrogated about whereabouts of gold ring of '' Victim No 2'', he disclosed that same was in the pocket of pyjama and subsequently the parcel containing his clothes was taken back from FSL and from pocket of pyjama, ring Ex P- 18 was recovered. 122
(29) In the judicial TIP, '' Victim No 2'' had identified gold ring to be the same which she was wearing at the time of incident and which had been taken away by the accused.
(30) On the clothes which were worn by the deceased at the time of incident blood of 'O ' group was detected.
(31) Human semen was detected on vaginal swab of '' Victim No 2''.
(32) The medical examination of '' Victim No 2'' had revealed that she had suffered injuries on her private parts and was subjected to rape.
(33) As per medical examination of accused, nothing abnormal was found which could have disabled him to perform sexual intercourse.
(34) In his statement U/s 313 Cr.P.C. accused has admitted that on the fateful night, he sneaked into the bedroom of ''Victim Nos 1 to 3''.
(35) He has also admitted that he had given knife 123 blows to ''Victim No 2'' and thereafter committed rape upon her.
(36) His stand regarding slitting throat of victim No 1 is contradictory. However, he has also admitted that knife which he had used in inflicting injuries on neck of ''Victim No 1'' stuck in his neck.
(37) His stand as regards causing injuries to ''Victim No 3'' is also contradictory. However, he has admitted that he went out of the bedroom of children, brought another knife from the kitchen adjacent to bedroom and gave knife blows on the neck of ''Victim No 3''
150. On the basis of facts proved on record and as narrated above, I come to the conclusion that it was the accused who had slit the throat of '' Victim No 1''. Injuries on the person of '' Victim No 1'' were caused intentionally by the accused and which have been opined to be sufficient to cause death in ordinary course of nature. Therefore, it stands proved on record beyond 124 reasonable doubt that accused has committed murder of '' Victim No 1''.
151. The accused is also proved to have assaulted '' Victim No 2 and 3'' with knives. He had inflicted injuries on the neck of '' Victim No 2'' and injuries have been opined to be dangerous in nature. She had undergone tracheotomy which saved her life. Accused had also inflicted injuries with knives on the neck of '' Victim No 3''. Though the injuries on the person of '' Victim No 3'' have been opined to be simple nevertheless injuries have been inflicted on vital part of her body i.e. her neck.
152. In order to determine whether the offence was U/s 307 IPC or not, the Court is required to determine ( 1) whether the accused had intention or ( 2) whether he had any knowledge or ( 3) he committed the offence in such circumstances, that if he had caused the death of the person on whom he had inflicted injuries, he would be guilty of murder. Accused knew very well that he was inflicting injuries on the neck of '' Victim No 2'' and 3. 125 Injuries on '' Victim No 2'' were of dangerous nature and certainly if she had died of the injuries sustained by her, accused would have been guilty of murder. Similarly, accused had chosen the neck to inflict injuries on '' Victim No 3'' also. Even if the injuries were opined to be simple, nevertheless, he had chosen the delicate part like neck to inflict injuries. If the artery in the neck had been cut off, it would have led to the death of '' Victim No 3''. It was per chance that injuries was not inflicted on the artery and therefore, '' Victim No 3'' could be saved. But from part of body of victim No 2 and 3 chosen by the accused, nature of weapon used by accused i.e. two different types of knives and force with which he had used the knives on '' Victim No 2'' ( which had caused dangerous injuries on her person ), it is clear that he knew that if death of victim Nos 2 and 3 ensued, he would be guilty of murder. Therefore, from facts proved beyond reasonable doubt on record, accused has also been found guilty U/s 307 IPC.
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153. Accused is proved to have asked '' Victim No 2'' to remove undergarments, he removed his own clothes and thereafter attempted to commit rape upon her. When she tried to save herself by moving on one side, accused inflicted injuries on her back with knife and thereafter forcibly had sexual intercourse with her. She was 17 years of age at the time of incident. Accused had inflicted injuries on the neck of '' Victim No 2'' to dissuade her to resist his attempt to commit rape. When she tried to save herself, he stabbed her at her back. In these circumstances, it can not be said that '' Victim No 2'' submitted to the accused voluntarily. Rather she was raped at the point of knife and accused had used the knife to dissuade her from putting up resistance.
154. I am, therefore, of the view that it also stands proved on record beyond reasonable doubt that accused has committed rape on '' Victim No 2''. Accordingly, I hold that accused is guilty for offence u/s 376 IPC.
155. Accused has also been charged U/s 392 i.e. for 127 robbery. Prosecution has alleged that after committing rape on '' Victim No 2'', he had removed gold ring from her finger and had taken away the same with him while leaving the spot. In her testimony, PW-21 ( ''Victim No 2'') has stated that accused had removed her gold ring from her finger. Robbery has been defined U/s 390 IPC. In case of robbery, either there is ''theft'' or there is an ''extortion''. ''Theft'' becomes robbery when in committing theft or in order to commit theft or in carrying away or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause hurt etc. Similarly ''extortion'' is robbery only where the offender at the time of committing extortion puts the victim in fear of instant death or instant hurt etc to induce him/ her to deliver the property. The prominent difference between ''theft'' and ''extortion'' is that in case of former, the offender moves the property dishonestly whereas in case of later victim himself delivers the property in consequence of fear 128 induced in him by the offender. In the present case, the simple evidence is that after committing rape on the '' Victim No 2'', accused removed gold ring from her finger and slipped away with the same. The use of knife by accused or causing injury with knife by the accused earlier may be with a view to dissuade her from putting up resistance or to silence '' Victim No 1'' and '' Victim No 3'' from raising noise but he did not inflict injury in order to commit theft or in committing theft or in taking away the property obtained in theft. Therefore, when accused simply removed the ring from the finger of '' Victim No 2'' without use of force, he can not be convicted u/s 392 IPC. His act squarely falls within the definition of theft which is punishable U/s 379 IPC. Accordingly, I am of the view that prosecution has proved beyond reasonable doubt that accused has committed offence U/s 379 IPC.
156. In view of the reasons given above, I hold that prosecution has proved its case beyond reasonable doubts 129 that accused has committed offneces U/s 302/307/376/379 IPC. Accordingly, I hold accused Sanjay Dass guilty U/s 302/307/376/379 IPC and convict him thereunder.
Announced on the Open Court
on 04.10.08 (BABU LAL)
ADDL SESSIONS JUDGE
DELHI
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