Delhi District Court
Sc No. 6/2008 1 State vs Ranjeet on 10 February, 2010
SC No. 6/2008 1 State Vs Ranjeet
FIR No. 488/2007
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGEI, NORTH DISTRICT, DELHI
SC No. 6/2008
FIR No. 488/2007
PS Timar Pur
U/s 363/376/302 IPC
State Vs Ranjeet
S/o Joginder Sharma
R/o Village Malka, P.O. Ratali,
P.S. Chhettan, Distt. Kharagta (Bihar)
Date of institution : 29.1.2008
Date of arguments : 8.2.2010 & 9.2.2010
Date of Judgement : 10.2.2010
JUDGEMENT
1. The prosecution case in brief is that complainant Suresh Shah (PW1), who is a Rickshaw puller, had five children. The third child, Ms R., was aged five years. Complainant and the accused both were the tenants in the house of one Zohra Singh, which is situated in gali no.17, Gopal Pur, Delhi. On 3.7.2007 complainant was plying his rickshaw and was coming back to his house at about 7:45 pm, he found that accused was taking his daughter Ms R. in his lap. On query by Sh. Suresh Shah, accused stated that he was taking his daughter for a stroll. Thereafter the complainant came SC No. 6/2008 2 State Vs Ranjeet FIR No. 488/2007 back to his house at 9:00 pm and asked his wife Smt. Paramsheela (PW3) about his daughter but she told that she was missing. Sh. Suresh Shah asked from the accused and accused stated that he had left her and that she might have gone to house of her Nani. It is alleged that Sh. Suresh Shah and his wife went to the house of maternal grand mother of Ms R. but she also stated that she had not come to her house. On this they came back to their house and found that accused was also missing. Complainant made an information number 100 with PCR, which was recorded in PCR form Ex.PW6/A. This information was conveyed to police station and one DD entry no. 65B Ex.PW10/A was recorded at PS Timarpur.
2. On 3.9.2007 ASI Shiv Kumar (PW18) was posted at PS Timar Pur. On that day ASI Shiv Kumar received a copy of DD no. 65B which is Ex.PW10/A. Thereafter, ASI Shiv Kumar along with Ct. Bikkar Singh (PW17) reached at gali no.17, village Gopalpur, where one Suresh met them. ASI Shiv Kumar recorded his statement Ex.PW1/A and made endorsement Ex.PW18/A on the same and sent it to police station for registration of FIR through Ct. Bikkar Singh, who went to the police station Timarpur and got the FIR registered. after the registration of FIR Ct. Bikkar Singh came back to the spot along with original rukka and carbon copy of FIR SC No. 6/2008 3 State Vs Ranjeet FIR No. 488/2007 and handed over the same to ASI Shiv Kumar. They had searched for accused as well as kidnapped girl. Then they went with complainant in search of the accused and kidnapped girl and reached jhuggi of Nand Lal, Mukherji Nagar. There complainant Suresh Shah pointed out a person, who was coming from the side of Mukherjee Nagar and told that he was Ranjeet, who has kidnapped, his daughter namely Ms. R. Accused Ranjeet was apprehended and was arrested vide arrest memo Ex.PW1/B. The personal search of accused was conducted vide memo Ex.PW1/C. Accused was interrogated and he made his disclosure statement vide Ex.PW1/D.
3. ASI Shiv Kumar called the SHO Inspector Ramphal (PW19) at the spot and he himself conducted the investigation further. Pursuant to his disclosure statement accused led us to a pond, which was at a distance of 2025 meters away from cut Gopalpur Ringh road and he pointed out the dead body of Ms. R. in the shallow water of the pond near bushes. The dead body was taken out. A pointing out cum recovery memo was prepared by Inspector Ramphal, which is Ex.PW1/E. Crime team was called at the spot and got the spot photographed. Accused Ranjeet also pointed out the some bushes and got recovered a light pink colour Kachhi, stated to be of deceased Ms. R. The Kachhi was taken into SC No. 6/2008 4 State Vs Ranjeet FIR No. 488/2007 possession and converted into sealed parcel and sealed with the seal of RPS and seized vide seizure memo Ex.PW1/F. SHO sent the dead body in the custody of Ct. Bikkar Singh to Subzi Mandi Mortuary, where he preserved the dead body for postmortem.
4. Thereafter the accused led them to his house situated in gali no.17, Gopalpur and got recovered one towel which was hanging on a hook. Accused stated he was wearing this towel at the time of the offence. The towel was sealed in pulanda with seal of RPS and seized vide memo Ex.PW1/G. The seal after use was handed over to Suresh, the complainant.
5. The postmortem on the dead body was conducted in Subzi Mandi Mortuary and after the postmortem the dead body was handed over to complainant vide receipt Ex.PW1/I. Then ASI Shiv Kumar handed over all the documents to SHO Inspector Ramphal and he was relieved. Exhibits were deposited in the PS Malkhana. Accused was sent to hospital for his medical examination. Dr. Preeti (PW4) examined the accused vide MLC Ex.PW4/A. She seized the under garments and blood sample of the accused, sealed the same and handed over the same to Ct. Jogender along with sample seal, which was seized vide Ex.PW12/B. SHO reached mortuary of Aruna Asaf Ali Hospital for getting postmortem conducted on the dead body. The dead body was SC No. 6/2008 5 State Vs Ranjeet FIR No. 488/2007 identified by Sh. Suresh Shah vide Ex.PW1/H and by one Deepak Kumar vide Ex.PW11/A. Postmortem was conducted and after the postmortem, dead body was handed over to Suresh Shah vide Ex.PW1/I. SHO collected the postmortem report on 24.9.2007.
6. On 28.9.2007, exhibits were sent to FSL through Ct. Rajesh Kumar, SHO collected PCR Form Ex.PW6/A. He prepared the site plan from the spot at the time when dead body of Ms. R. was recovered which is Ex.PW19/A and recorded the statements of witnesses. SHO got the scaled site plan prepared which is Ex.PW14/A and collected the photographs Ex.PW8/A1 to Ex.PW8/A5. He collected the result from FSL and filed the same in the court which is Ex.PX containing three sheets.
7. After completion of the investigation, the charge sheet was filed in the Court of Ld. Metropolitan Magistrate, who committed the case to Sessions Court vide his order dated 22.1.2008. The case was assigned to this court and after hearing the arguments, my Ld. Predecessor framed a charge under Section 363/376/302/201 IPC, to which accused pleaded not guilty and claimed trial.
8. In order to prove its case prosecution examined PW1 Suresh Shah, who is the complainant and father of the deceased. He testified that he has five children out of which four are daughters. The victim is his third child and at the time of the offence her age SC No. 6/2008 6 State Vs Ranjeet FIR No. 488/2007 was 4 and half years. On 3.9.2007 at about 7:45 pm he was returning to his house on rickshaw, he being a rickshaw puller. He stated that accused is known to him because he and the accused, both, are tenants in the house of Johra Singh. He testified that when he was slightly away from his house, he saw accused carrying his daughter (deceased) in his lap. She called him (i.e. PW1) and he stopped the rickshaw. He asked the accused as to where he was taking his daughter, on which accused replied that he was taking her for a walk. PW1 testifies that thereafter he went to garage to park his rickshaw as the same was on rent and returned to his house at about 9:00 pm. He asked his wife Paramshila (i.e. PW3) about the child Ms R. and she told that she was missing. PW1 testifies that he told his wife that Ms R. was taken by the accused for a walk. After about five minutes, accused also came and on being asked, he told that he had left Ms R. on the way and that she might have gone to her maternal grand mother's house. PW1 along with his wife went to the house of the mother of his wife (i.e. the maternal grand mother of the deceased). But she told that Ms R. had not come there. Therefore PW1 along with his wife returned to their house and when they tried to contact the accused, accused was found missing. PW1 testifies that he informed PCR about missing of his daughter. Police reached and recorded his statement SC No. 6/2008 7 State Vs Ranjeet FIR No. 488/2007 Ex.PW1/A and they went out for search of Ms R. and the accused. PW1 further testifies that when he along with the police reached near Nand Lal Jhuggi in Gopalpur, he saw accused coming from the side of Mukherjee Nagar. Accused was apprehended and he made his disclosure statement Ex.PW1/D, pursuant to which he got recovered the dead body of Ms R. lying in the mud of the pond and the accused also got recovered the underwear of Ms. R. PW1 testifies that accused also got recovered a towel from his house. PW1 also identified the dead body.
PW2 Smt. Rajo is the mother in law of complainant. She testified that on 3.9.2007 complainant had come to his house in search of his daughter Ms R. She testified that Ms R. had not come to her house on that day. She also testified that Suresh (PW1) had told her that Ms R. was taken by Ranjeet.
PW3 Smt. Paramsheela, is the wife of complainant. She testified that her daughter was missing since 8:00 pm and when her husband came back to the house at about 9:00 pm, she told this fact to him. She testified that her husband told her that she was taken away by accused Ranjeet. She further testified that when accused Ranjeet came at about 9:00 pm, her husband inquired from him about Ms R, on which accused told her that she might have gone to her Nani's house. Accordingly she along with her husband SC No. 6/2008 8 State Vs Ranjeet FIR No. 488/2007 went to her mother's house. The mother of this witness told her that Ms R had not come there.
9. PW4 Dr. Preeti, Medical Officer Aruna Asaf Ali Government Hospital, testified that she had examined accused vide MLC Ex.PW4/A and she did not find any external injury on the person of accused. She seized under garments and blood sample of the accused and after sealing the same were handed over to Ct. Jogender along with the sample seal and the patient was referred to forensic expert for opinion.
10. PW5 Dr. S. Lal, the Forensic expert, Subzi Mandi Mortuary, Aruna Asaf Ali Government Hospital testified that he had examined the accused on 4.9.2007 with alleged history of rape on 3.9.2007. He observed following injuries on his person :
1. Multiple reddish bluish bruises intermingling to each other to forming large wound of size 20x7 CM over bilateral gluteal region.
2. Linear reddish bluish bluish of size 6x1 CM present over back of right lower chest, horizontally placed.
Doctor found the accused to be capable of performance of sexual intercourse. He proved his report as Ex.PW5/A.
11. PW5 also conducted postmortem examination of the deceased and found that the deceased was wearing a mustard colour Kurti, SC No. 6/2008 9 State Vs Ranjeet FIR No. 488/2007 which was wet and stained with mud. Bleeding from nostril was present mixed with blood and mud. The oral cavity was filled with mud and nails were cyanosed. PW5 found following antemortem injuries on her person :
1. Vaginal tear present of size 5x2 CM x muscle deep present over 6 'O' clock position and extend to anus and surrounded by contusion over vaginal wall.
2. Reddish scratch abrasion 2.8x0.1 CM over right side forehead, 7 CM above the eyebrow and 4 CM from mid line and obliquely placed.
3. Reddish scratch abrasion 3x0.1 CM over right side forehead placed 1.5 CM below the injury no.2.
4. Multiple linear reddish scratch abrasion varies in size from 2.5 CM x 0.1 CM to 1.0 CM x 0.1 CM over right side of face in area of 4x3 CM, just lateral to angle of eye.
5. Pressure abrasion reddish in colour (nails mark) 0.4x0.2 CM over left side face, 3 CM left to ala of nose.
6. Pressure abrasion red in colour (nails marks) 0.3 CM x 0.2 CM on left side face 1 CM below the injury no.5.
7. Pressure abrasion red in colour (nails marks) 0.4x0.2 CM over left side face placed 2 CM left to angle amount.
8. Pressure abrasion red in colour SC No. 6/2008 10 State Vs Ranjeet FIR No. 488/2007 (nails marks) of size 0.3 x 0.2 CM over left side face placed 1 CM outer to injury no.7.
9. Pressure abrasion red in colour (nails marks) of size 0.3 x 0.2 CM over left side face placed just outer to angle of mouth.
10. Linear reddish abrasion 5x0.1 CM present over right side upper neck, obliquely placed and 7 CM below the tip of mastoid process.
11. Linear reddish abrasion 4x0.2 CM present over right side upper neck, obliquely placed, 2 CM below the angle of mandible.
12. Linear reddish abrasion 4x0.1 CM present over front of upper neck, horizontally placed, 2.5 CM blow the tip of chin.
13. Linear reddish abrasion 5x0.2 CM present over left side upper neck, horizontally placed, 4 CM below the lower border of mandible.
14. Multiple nails mark (pressure abrasion) in are of 2.5 x 1 CM in middle front of neck placed 4 CM above the sternal notch.
15. Reddish bruise 1x0.5 CM over left side face over cheek.
16. Multiple reddish abrasion in area of 10x5 CM over lower back of abdomen in middle.
12. PW5, on internal examination of the dead body also found, on dissection, muddy fluid reaches upto bronchiole and blackish SC No. 6/2008 11 State Vs Ranjeet FIR No. 488/2007 muddy fluid. The doctor opined the cause of death to be asphyxia due to ante mortem drowning and homicidal in nature. Injuries present over body were anti mortem in nature and recent in duration. Injury no.2 to 14 could be possible to cause by nails and injuries no.1, 15 and 16 produced by blunt force impact. He further opined that the injuries present over vagina indicates the sexual intercourse/assault before death. PW15 testified that rectal and vaginal swab were preserved for semen analysis. A gauge piece soaked in the blood of the deceased was also taken. The clothes of the deceased were also preserved and after sealing all these exhibits under the seal of CMO, handed over the same to Investigating Officer along with sample seal. He proved the postmortem report as Ex.PW5/B.
13. PW6 Ct. Anju Bala testified that on 3.9.2007 she was constable in PCR Head Quarter. At 9:06 pm on 3.9.2007, she received a call from telephone no. 9971247091 and the caller disclosed his name as Suresh. He stated that the prosecutrix was missing since 7:45 pm. PW6 testifies that she recorded this information in PCR form, which is Ex.PW6/A. PW7 HC Dharam Singh proved FIR Ex.PW7/A. PW8 Ct. Naresh took the photographs of the place, where the dead body of the girl child was lying.
SC No. 6/2008 12 State Vs Ranjeet FIR No. 488/2007 PW9 Inspector Sube Singh is the Incharge of Mobile Crime Team. he reached at the spot and got the scene of occurrence photographed.
PW10 HC Rambir Singh recorded DD no. 65B Ex.PW10/A. PW11 Deepak testified that he identified the dead body of his sister.
PW12 HC Kirpal Singh deposited the pulandas in Malkhana. PW13 Ct. Jogender Singh took the two pulandas from doctor along with sample seal and the MLC of the accused.
PW14 Ct. Sonu Kaushik prepared scaled site plan Ex.PW14/B of the place where the dead body was found.
PW15 Ct. Rajesh Kumar collected the pulandas from MHC(M) and deposited the same in FSL.
PW16 HC Anil Kumar is MHC(M), who proved relevant entries of depositing the pulandas in register no.19, which is Ex.PW16/A. He also proved the copy of RC no. 189/21 as Ex.PW16/B vide which the exhibits were sent to FSL.
PW17 Bikkar Singh accompanied ASI Shiv Kumar and took part in investigation.
PW18 ASI Shiv Kumar and PW19 Inspector Rampal Singh are the Investigating Officers.
14. In statement under Section 313 CrPC accused denied all the SC No. 6/2008 13 State Vs Ranjeet FIR No. 488/2007 accusations but he did not examined any witness in his support.
15. Ld. Public Prosecutor submits that this is a case based upon the circumstantial evidence and has pressed following circumstances against the accused :
(1) Last seen of Sh. Suresh Shah (PW1), the father of prosecutrix who saw the accused taking away his daughter.
(2) The dead body of the deceased was found shortly thereafter i.e. on 4.9.2008.
(3) The conduct of the accused also incriminates him. When the complainant made inquiry from the accused, accused told that he had left this child on the way and she might have gone to maternal grand mother's house. Prosecution alleges that this explanation was found to be false. Further when PW1 and PW2 i.e. the parents of the deceased went to the house of the maternal grand mother of the deceased and when they came back to their house, they found that the accused was missing.
(4) The conduct of accused having pointed out the dead body and the underwear of the deceased.
(5) Recovery of towel having the blood stains of the same blood group as that of the deceased.
(6) When the accused was taken to hospital for his medical examination, Dr. Preeti (PW4) seized her under garments and SC No. 6/2008 14 State Vs Ranjeet FIR No. 488/2007 blood sample of the accused. As per the FSL report the human semen was found on the underwear (Ex.3A) of accused and the blood was deducted on the underwear as well as the Baniyan (Ex.3/A and Ex.3/B) of the deceased. Ld. Additional Public Prosecutor submits that A is the blood group of the deceased and the towel (Ex.2) recovered at the instance of accused and Baniya (Ex.3/B) were found to have blood stains on human origin having A group. Ld. Additional Public Prosecutor argues that the presence of blood of the deceased on the towel recovered by the police at the instance of the accused and the Baniyan seized by Dr. Preeti are a sure short evidence of the culpability of the accused. Accordingly Ld. Additional Public Prosecutor argues that the evidence on record fully inculpates the accused and accordingly the accused should be convicted for the offence of rape as well as for causing her murder.
16. Ld. Counsel for accused has strongly assailed the prosecution case. Ld. Defence Counsel has drawn my attention to PCR for Ex.PW6/A. It is argued that this form would show that the PCR received the information at 21:06 i.e. at 9:06 pm on 3.9.2007. Ld. Defence Counsel has drawn my attention that in this information, PW1 has simply informed the police about the missing of his daughter and it is no where stated that accused had taken away the child. It is argued by Ld. Defence Counsel that had the complainant SC No. 6/2008 15 State Vs Ranjeet FIR No. 488/2007 suspected the accused, he would have named the accused in his information to the police.
17. Ld. Defence Counsel has further assailed the recovery of the dead body at the instance of the accused. Ld. Defence Counsel has drawn my attention to the scaled site plan Ex.PW14/A and submits that the fish pond where the dead body was found is very near to a road and easily accessibly to the public. It is submitted that it is no where stated that when the accused pointed out the dead body, it was so concealed that it could have been in knowledge of the accused. Ld. Defence Counsel argues that presence of the dead body outside the pond was in full public view and therefore its exclusive knowledge cannot be attributed to the accused. It is further argued by Ld. Defence Counsel that in fact the accused was brought to the police station and it was some public persons, who informed the police about the presence of the dead body in the pond. Ld. Defence Counsel argues that the accused did not lead the police to the pond. Ld. Defence Counsel argues that the prosecution version of recovery of dead body at the instance of accused becomes highly doubtful because the testimonies of the witnesses in this regard are of divergent nature. For example whereas PW1 testifies in cross examination that he along with accused and police had reached near the dead body on foot, the SC No. 6/2008 16 State Vs Ranjeet FIR No. 488/2007 police officials namely ASI Shiv Kumar (PW18) has testified that he along with the accused and Ct. Bikkar Singh had reached near the dead body by motorcycle and complainant was asked to follow them. Further PW1. the complainant, testifies that accused himself had taken the dead body of the pond where as PW17 SI Bikkar Singh testifies that the dead body was pushed by him and the accused jointly.
18. It is further argued by Ld. Defence Counsel that it would be highly doubtful that the accused would take the child while wearing a towel to the place of spot because for this purpose, he had to pass through the crowded lanes of the locality. It is argued that the blood on the towel and the Baniyan of the accused, has been planted by the police.
19. Ld. Defence Counsel argues that the confession Ex.PW1/D was never made by the accused and accused was forced to put his signatures on his fake confession/disclosure statement by subjecting him to third degree method. Ld. Defence Counsel has drawn my attention to the testimony of PW5 Dr. S. Lal, who in his cross examination admitted that injury no.1 and 2 on the person of accused was caused by a linear object i.e. Danda. It is argued that due to this reason the entire disclosure statement should be discarded.
SC No. 6/2008 17 State Vs Ranjeet FIR No. 488/2007
20. Ld. Defence Counsel has further argued that as per the testimonies of the witnesses, many tenants apart from the accused and the complainant were residing in the house of Johra Singh. However police did not join anyone of them in investigation at the time of recovery of the towel. It is argued by Ld. Defence Counsel that whereas the complainant i.e. PW1 has testified in cross examination that the towel was recovered from outside the room of the accused, the police officials are testifying that the same was recovered from inside the room. Therefore, it is argued that the entire recovery of the towel becomes of highly doubtful nature.
21. Ld. Defence Counsel further argues that the semen was not detected on the vaginal swab or any of the clothes of the deceased. It is further argued that police had the opportunity to plant blood stains upon the towel and baniyan etc.
22. Ld. Defence Counsel therefore argues that the disclosure statement of accused, recovery of dead body and the underwear of the deceased as well as the recovery of towel becomes highly doubtful. Accordingly Ld. Defence Counsel prays for benefit of doubt and consequentially the acquittal of the accused.
23. I have considered the submissions of the parties. As per the testimony of PW1 Suresh Shah, the father of the victim, he had seen his daughter in the lap of the accused at about 7:45 pm. When SC No. 6/2008 18 State Vs Ranjeet FIR No. 488/2007 this witness returned to his home at about 9:00 pm, his wife told that Ms R. was missing. The natural conduct of this witness was to seek explanation from the accused. Accused told him that he had left Ms R. on the way and she might have gone to her maternal grand mother's house. When PW1 along with his wife PW3 went to the house of the maternal grand mother (examined as PW2) of the victim, they came to know that Ms R. had not come to her house. On this PW1 and PW3 came back to their house and found the accused missing. This might have created some doubt about the complicity of the accused in missing of the victim but a reasonable man would not likely to implicate a person specially a neighbour unless he is very definite about the involvement of such a neighbour in an offence. Therefore it is natural for PW1 to give a cryptic information to PCR about the missing of her child. It is only when the police came to the house of PW1 Suresh Shah, that he narrated the entire incident to the police. The sequence of the incidents are quite natural and I do not find any ground to disbelieve the last seen evidence on the sole ground that PW1 did not mention the name of accused as kidnapper in the information to PCR. I am of the opinion that testimony of PW1 that he had seen the accused taking his daughter at about 7:45 pm is worthy of credence.
SC No. 6/2008 19 State Vs Ranjeet FIR No. 488/2007
24. I also do not find any substance in the submissions of Ld. Defence Counsel that the pointing out of the dead body at the instance of the accused is no covered under Section 27 of Indian Evidence Act. The testimony of PW1, PW17, PW18 would show that when accused was apprehended, he made a disclosure statement and led the police to the pond and pointed out the dead body. The witness does not state as to how he came to know about the presence of the dead body of the victim in the pond. It is pertinent to note that accused was arrested quite late in the night and the dead body was lying on the shallow bank of the pond and the area is surrounded by the bushes as reflected from the site plan Ex.PW4/A. Therefore even if the pond might have been visible and accessible to the public, the dead body could not have been detected due to darkness of the night and the presence of the bushes. Further the underwear of the deceased was found at the instance of the accused in the bushes, where the rape was committed as per prosecution case. PW19 Inspector Rampal Singh has specifically testified that accused Ranjeet led them to inside the fish pond, where he pointed out a place near the bushes, where the dead body of the victim was lying in shallow water. Therefore it is clear that the presence of the dead body at the spot was in special knowledge of the accused and it was his responsibility to SC No. 6/2008 20 State Vs Ranjeet FIR No. 488/2007 explain as to how he came to know about this fact. Further, as per the testimony of PW19, the underwear of the victim was recovered at the instance of the accused from the bushes more specifically shown in site plan Ex.PW14/A at point B. This shows that the underwear was not visible to the public at large and the presence of underwear in the bushes was in exclusive knowledge of the accused. Therefore not only the recovery of dead body and the underwear of the victim is relevant and admissible in evidence under Section 27 of Indian Evidence Act, the conduct of the accused pointing out and getting recovered the dead body and its underwear soon after his arrest is a relevant fact under Section 8 of Indian Evidence Act. I may refer to AIR 1979 Supreme Court 400 and 2005 Crl. L. J. 3959.
25. Ld. Defence Counsel has tried to assail the disclosure statement of accused on the ground that the thumb mark of the accused was taken on it by using third degree method and the two injuries on the buttocks of the accused with a danda clearly indicate this fact. I disagree with the submissions of Ld. Defence Counsel. The judicial record would show that the accused was produced before Duty Magistrate on 4.9.2007 i.e. the date of arrest itself and was being continuously produced before Ld. Metropolitan Magistrate till committal of the case but he never made any complaint in this SC No. 6/2008 21 State Vs Ranjeet FIR No. 488/2007 regard. In fact in statement under Section 313 CrPC also he did not make any mention of beating by police to extort the confession or to compel him to place his signatures on his disclosure statement. The accused was medically examined vide MLC Ex.PW4/A but this MLC does not reflect that accused had given any history of beating by police. In these circumstances I do not find any substance in the defence arguments that the disclosure statement should be discarded being a result of coercion.
26. I also do not find any substance in the arguments of Ld. Defence Counsel that there is any contradiction in the testimony of PW1 and the police officials. All the witnesses have stated that they had reached the spot along with the accused on the motorcycle but complainant was asked to follow them. This means that the complainant i.e. PW1 had reached the spot on foot. PW1 specifically testifies that they had gone there on foot and that he with accused and police had gone there. There were two police officials accompanying them and the motorcycle was carted to the place where dead body was recovered. This portion of testimony in cross examination is clearly not contradictory to the testimonies of the police officials. The substance of both the testimonies are that the complainant had reached to the pond on foot and the police officials along with the accused were on SC No. 6/2008 22 State Vs Ranjeet FIR No. 488/2007 motorcycle. I also do not find any contradiction in the testimony of PW1 and PW17. Both of them have stated that accused himself had taken out the dead body from the pond. PW17 simply says that he had also joined the accused in taking out this dead body. In fact the contradictions pointed out by Ld. Defence Counsel are no contradiction at all. These are minor variations which are liable to be ignored.
27. Ld. Defence Counsel has assailed the recovery of towel on the ground that no tenant from the neighbourhood was joined in the investigation. I do not find any substance in this argument. The tenants of the premises, where accused and complainant reside, must naturally be known to both of them, therefore in such circumstances the immediate neighbours are likely to take a neutral stance. It was night time and the Investigating Officer (PW19) has stated in cross examination that the neighbours were not present at that time. However complainant and PW18 ASI Shiv Kumar have testified that a few persons had collected when they reached at the house of the accused. Therefore it appears that it is only out of lapse of memory, that Investigating Officer is testifying that no neighbour was present. However I am convinced that a few persons from the neighbourhood must be collected. However the testimony of the police officials as well as the complainant cannot SC No. 6/2008 23 State Vs Ranjeet FIR No. 488/2007 be discarded solely on this ground. I may point out that there is no enmity between the accused and complainant i.e. PW1. Rather both of them appear to be at good terms. This is the reason that when the accused was taking the victim in his lap for a walk, PW1 did not suspect anything foul. In such circumstance there is no reason as to why PW1 would falsely implicate the accused and falsely testify against him. The testimonies of the police officials find full support from PW1 and therefore I have no hesitation in accepting the prosecution version that the towel was recovered at the instance of the accused. Ld. Defence Counsel had assailed the recovery of towel on the ground that as per the police officials, the same was recovered from inside the room of accused, whereas as per PW1, the towel was hanging on a peg outside the room. I am of the opinion that the state of mind of PW1 at that time must have been of a person under emotional turmoil and unbearable shock. This witness came to testify before this court after about one year from the incident. The circumstances on account of the death of her daughter must have completely overtaken his persona. On the other hand the police officials, adept in such type of investigations, must be acting with a cool temperament and with objectivity. Therefore the minor variations of PW1 in this regard has to be ignored. It must be remembered that PW1 is very categorical that SC No. 6/2008 24 State Vs Ranjeet FIR No. 488/2007 the towel was recovered at the instance of the accused from the peg. Similarly PW19 Inspector Rampal Singh have testified that the towel was hanging on a hook and recovered by the police at the instance of the accused. Therefore the testimonies of PW1 and police officials are consistent and worthy of reliance despite the fact that no public witness except PW1 was joined by the police at that time.
28. It is argued by Ld. Defence Counsel that how could an accused wear a towel for the purpose of committing this offence and how he would go out of his house with the child while wrapping a towel around his waist through the crowded lanes. I am of the opinion that once a towel with the blood stains of the deceased is recovered at the instance of the accused, it is for the accused to explain how the blood stains of the deceased reached there. No one has seen the offence. It is only as per the confession statement, which is not admissible in evidence, that the prosecution is alleging that accused was wearing this towel at the time of the offence. But there is no direct evidence to support this version. Therefore the court has before it a simple circumstance that a towel was recovered at the instance of the accused from his room, which bore blood stains of the deceased. Ld. Defence Counsel has argued that there were many nail marks on the person of the deceased but the doctor did SC No. 6/2008 25 State Vs Ranjeet FIR No. 488/2007 not check the nails of the accused so as to ascertain as to whether there was any blood or skin of the deceased in the nails of the accused. I am of the opinion that there is some lapse on the part of the Investigating Officer and the doctors in this regard but this lapse is not of such a nature which may lead to acquittal of the accused.
29. In view of above discussions, I am of the opinion that the prosecution has proved all the circumstances as mentioned above. Now the question is as to whether the circumstances proved by the prosecution, as enumerated in para 15 of the judgement, complete the chain of circumstances in such a manner that no link is missing. The prosecution has proved that the victim was last seen with the accused at about 7:45 pm on 3.9.2007. PW1 the father of the deceased lodged FIR at about 11:50 pm as per the rukka Ex.PW18/A. The dead body of Ms R. was found at the instance of accused at about 2:00 pm (as reflected in cross examination of PW1). This entire sequence shows that within a few hours of the last seen together with the accused, Ms R. was found raped and killed (as per the medical evidence). The underwear of the deceased was recovered at the instance of the accused from bushes near the pond where dead body of Ms R. was found. The postmortem shows that vaginal tear was present over 6 O'Clock SC No. 6/2008 26 State Vs Ranjeet FIR No. 488/2007 position and extended to anus surrounded by contusion over vaginal wall. This proves that the victim was raped. The postmortem shows that the prosecutrix was killed by drowning. The shortness of time between last seen together and rape and murder leads to only one conclusion that the victim was raped and murdered by one person. The blood gauge of the victim was examined and as per FSL report, the blood group of the victim was 'A'. The blood group of A was found on the baniyan worn by the accused. This baniyan was seized by the doctor (PW4), who had medically examined the accused and the same was sealed by the doctor and handed over to Ct. Jogender. Therefore there was no chance for the police to plant blood stains on the baniyan of the accused. Accused has failed to explain as to how the blood stains of group A of the deceased was found on his baniyan (under garment). The recovery of towel bearing blood stains of A group (which is the blood group of the deceased) from the room of the accused further corroborates the prosecution case. Accused does not say that his own blood group is A. Accused also does not say that the blood on the baniyan and the towel had fallen from his own injury. Accused has not offered any explanation to any of the circumstantial evidence proved by the prosecution against him. This situation leaves me in no doubt that it is the accused himself SC No. 6/2008 27 State Vs Ranjeet FIR No. 488/2007 who has kidnapped, raped and murdered Ms R. In fact the chain of circumstances is so complete that it leaves no missing links and leads to only one unmistakable conclusion i.e. the guilt of the accused. I therefore hold that the prosecution has proved its case beyond reasonable doubt against the accused. In view of this complete chain, I am not inclined to convict the accused under Section 201 IPC because the main offence stands proved.
30. I therefore convict the accused under Section 363/376/302 IPC. Announced in the open court on 10.2.2010.
(VINOD KUMAR) Additional Sessions Judge1 North District, THC, Delhi SC No. 6/2008 28 State Vs Ranjeet FIR No. 488/2007 IN THE COURT OF SH. VINOD KUMAR ADDITIONAL SESSIONS JUDGEI, NORTH DISTRICT, DELHI SC No. 6/2008 FIR No. 488/2007 PS Timar Pur U/s 363/376/302 IPC State Vs Ranjeet S/o Joginder Sharma R/o Village Malka, P.O. Ratali, P.S. Chhettan, Distt. Kharagta (Bihar) ORDER ON SENTENCE
1. Arguments on sentence heard. Ld. Additional Public Prosecutor has vehemently argued for death penalty in the present case. It is argued that a child of the five years of age was not only raped but also she was killed by the convict in most brutal manner. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW5 Dr. S. Lal, who conducted postmortem of the dead body found numerous nail marks (injury no.6, 7 and 8) on the face of the deceased and multiple nail marks on the neck (injury no.14) and numerous other abrasions and scratches on the person of the deceased child. It is argued that these injuries are the result of the force used by the convict while he was trying to drown the child and the victim was resisting. Ld. Additional Public SC No. 6/2008 29 State Vs Ranjeet FIR No. 488/2007 Prosecutor argues that the offence is rarest of rare nature because the child was not murdered during the course of committing the rape rather she was murdered by drowning her after the rape. Ld. Additional Public Prosecutor has drawn my attention to injury no.1 noted by PW5 Dr. S. Lal, which shows vaginal tear present over 6 O'Clock position and extend to anus. It is argued that on account of such force used by the convict during the rape, the child must be weeping inconsolably. Therefore with a view to destroy the evidence, the convict drowned her in the shallowness of the pond. It appears that he kept her mouth drowned in the mud till she died. Ld. Additional Public Prosecutor has drawn my attention to the postmortem report, which shows that on dissection, it was found that the muddy fluid had reached upto the bronchiole and the blackish muddy fluid mixed with frothy blood was coming out on squeezing of. Ld. Additional Public Prosecutor argues that the child was killed in a most torturous manner and except death, no other sentence would be appropriate.
2. On the other hand, Ld. Defence Counsel argues that this is a case based on circumstantial evidence and it has been held in numerous authorities that death penalty should not be awarded if the case is based upon circumstantial evidence. It is further argued that in the present case there is no eye witness and that the SC No. 6/2008 30 State Vs Ranjeet FIR No. 488/2007 circumstances proved against the appellant are not so overwhelming that a highest degree of certitude in prosecution evidence is obtained. It is argued by Ld. Defence Counsel that the entire prosecution case hinges upon last seen evidence, pointing out of the dead body, which was not concealed, or which was not in exclusive possession or knowledge of the convict and one blood stain on the Baniyan of the convict himself. It is argued that in view of this nature of evidence, the award of death penalty would not appropriate.
3. Ld. Defence Counsel in her support has referred to Bantu @ Naresh Giri Vs State of M.P. 2002 (1) Crimes 79 SC in which a school girl of six years was raped and thereafter killed by the convict but the Supreme Court did not maintain the death sentence. Ld. Defence Counsel has further referred to Sebastian Vs State of Kerala JT 2009 (13) SC 136, wherein the accused was convicted for the rape of a child aged 2 years and her murder. It is argued by Ld. Counsel that Hon'ble Supreme Court considered the young age (of 24 years) to be a mitigating factor. It is further argued that Hon'ble Supreme Court also held that when the conviction rests on circumstantial evidence, the death penalty should not ordinarily be awarded. Ld. Defence Counsel argues that Hon'ble Supreme Court placed reliance on Swami Shradhanand Vs State of Karnataka SC No. 6/2008 31 State Vs Ranjeet FIR No. 488/2007 (2008) 13 SCC 767 and substituted the death penalty with life imprisonment with a direction that convict must not be released from the prison for rest of his life. Ld. Defence Counsel further argues that Sebastian Vs State of Kerala is an authority of Supreme Court, which is later in time than Shivaji (supra) as referred to by Ld. Additional Public Prosecutor. Hence Ld. Defence Counsel has raised a strong plea against death penalty.
4. Before discussing the case law cited by Ld. Additional Public Prosecutor and Ld. Defence Counsel, I would like to draw a balance sheet of aggravating and mitigating factors. In the present case the victim is only 5 years of age and is an innocent child totally unable to defend herself. The convict lives in her neighbourhood and is in position of trust vis a vis the victim. Further, after commission of the rape, the murder of the child was committed in most brutal, grotesque, diabolical manner. I may point out that the child was killed by drowning her in the shallow muddy water of the pond. The mud had reached to the bronchioles of the victim. The nail marks and injuries on her face show that convict had used the force to keep her mouth in the muddy water, which led to her death. The postmortem shows numerous injuries on the body of the child, which shows that she has died an extremely painful death. All these circumstances are aggravating factors, which falls squarely SC No. 6/2008 32 State Vs Ranjeet FIR No. 488/2007 into the parameters laid down by Bachan Singh Vs State of Punjab 1980 (2) SCC 648 and Machhi Singh Vs State of Punjab 1983 (3) SCC 470, wherein the Supreme Court held that death penalty would be a suitable punishment when the collective conscience of the community is so shocked, that it will expect the holder of judicial power center to inflict death penalty. The Supreme Court also held that the community may entertain such sentiments in following circumstances :
1. When the murder is committed in an 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 evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or coldblooded murder for gains of a person visavis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
3. When murder of a member of Scheduled Caste.................
4. When the crime is enormous in proportion.......................
5. When the victim of murder is an SC No. 6/2008 33 State Vs Ranjeet FIR No. 488/2007 innocent child, or helpless woman or old or infirm person or a person visa vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
5. Therefore the aggravating circumstances of the present case are such a nature which fit in the above stated criteria to determine as to whether the collective conscience of the community expects the death penalty to an offender.
6. Ld. Defence Counsel, while referring to Sebastian (supra) argues that the young age of the convict is a mitigating factor. It is further argued that in the above stated authority, the Supreme Court had taken a case based on circumstantial evidence to be a mitigating factor. No other mitigating factor has been brought to the notice of this court.
7. I have perused the Sebastian Vs State of Kerala cited by Ld. Defence Counsel and I find that in this authority, Shivaji Vs State of Maharashtara 2008 IV AD (CR) SC 665 has not been referred. In Shivaji, the Supreme Court considered as to whether or not the circumstantial based conviction should be taken to be the mitigating factors. I quote para 40 and 41 of the judgement, which are as under :
SC No. 6/2008 34 State Vs Ranjeet FIR No. 488/2007
40. The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play. In fact in most of the cases where death sentence are awarded for rape and murder and the like, there is practically no scope for having an eye witness. They are not committed in the public view. But very nature of things in such cases, the available evidence is circumstantial evidence. If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstances, would amount to consideration of an irrelevant aspect. The plea of learned Amicus Curiae that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable.
41. The case at hand falls in the SC No. 6/2008 35 State Vs Ranjeet FIR No. 488/2007 rarest of rare category. The circumstances highlighted above, establish the depraved acts of the accused, and they call for only one sentence, that is death sentence.
8. The above stated observations of Supreme Court have clearly held that a conviction based on circumstantial evidence cannot be treated to be a mitigating circumstance. So far as young age is concerned, the same cannot be taken as a mitigating factor because such offences are the offences of passion and are committed by the people of young age. In Shivaji (supra) the convict was also of a young age. Therefore in view of the gravity of the offence, the young age of the convict cannot be taken to be a mitigating factor.
9. In view of this discussion, it is clear that the aggravating factors in favour of death penalty are overwhelming whereas there is no mitigating circumstance.
10. However the court has to further inquire as to whether a punishment lesser than death would be wholly inadequate and would the punishment as prescribed in Shradhanand's case be a fit punishment in this case.
11. In this regard I would again refer to Shivaji (supra) where the Supreme Court was discussing the question of proportion between crime and the punishment. The Supreme Court observed as under :
SC No. 6/2008 36 State Vs Ranjeet FIR No. 488/2007
28. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences.
The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those consideration that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
12. The Supreme Court has in this judgement taken note of the departure in imposing severe sentences in the offences of gravest nature and inflicted death penalty to an offender convicted of rape of a child and her murder. In back drop of this judgement, it is necessary to analysis Sebastian case, cited by Ld. Defence Counsel. Ld. Defence Counsel has also referred to Bantu @ Naresh Giri Vs State of MP 2002 (1) Crimes 79 Supreme Court wherein the SC No. 6/2008 37 State Vs Ranjeet FIR No. 488/2007 Supreme Court held that act of raping a child of 6 years and murdering her due to gagging her mouth and nostril at the time of incident was not rarest of rare cases.
13. A careful perusal of these two cases cited by Ld. Defence Counsel would show that in Bantu, the death of the victim was caused while committing rape and Supreme Court specifically noted that there were no injuries on the deceased and it was probable that death might have occurred because of gagging her mouth and nostrils by accused at the time of incident so that she may not raise hue and cry and that death was accidental and unintentional one.
14. In Sebastian the Supreme Court was dealing with the rape cum murder of a two years child but it is not clear as to how and in what manner the death of the child was caused.
15. Therefore in both the cases, it appears that the death of the child was caused during the commission of the rape. However in Shivaji, the Supreme Court was considering a case where the child was murdered after raping her. In this case the convict, after raping the child, killed the child by stabbing her. The facts of this case in hand can be compared to Shivaji's case and not with the facts of Sebastian and Bantu as referred by Ld. Defence Counsel. The convict herein has raped the child and thereafter killed her by SC No. 6/2008 38 State Vs Ranjeet FIR No. 488/2007 drowning her in the pond. In order to understand the ghastliness of the offence, it is necessary to understand as to how much painful the process of death would have been for the victim when the convict were forcing her in the muddy water of the pond. The postmortem report shows that the mud had reached the bronchioles of the child. This child was 5 years old and could not have drowned in the shallow water unless she was forced by the convict. Even a thought as to how painful her death might be sends shivers down the spine. To my mind the offence is of extreme depravity and sentencing the convict even to his entire life, to my mind, would be a wholly inadequate sentence.
16. In Laxman Naik Vs State of Orissa (1994) 3 SCC 381 a 7 years old girl was raped and murdered by the accused. The case rested upon circumstantial evidence of last seen together, false representation of accused about the whereabouts of the deceased and seizure of incriminating articles. While confirming the death sentence the Supreme Court observed as under :
"The hard facts of the present case are that the appellant is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant and while reposing such faith and confidence SC No. 6/2008 39 State Vs Ranjeet FIR No. 488/2007 in the appellant must have believed in his bonafides and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the appellant. The victim was a totally helpless child there being n one to protect her in the desert where she was taken by the appellant misusing her confidence to fulfill his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act."
"The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of this crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment SC No. 6/2008 40 State Vs Ranjeet FIR No. 488/2007 and consequently the sentence of death imposed upon the appellant for the offence under Section 302 must be confirmed".
17. In Dhananjay Chatterjee alias v. West Begal, MANU/SC/0626/1994 : [1994]1SCR37 a young girl of 18 years of age was raped and murdered by the Security Guard of the building. The Supreme Court confirmed the death sentence by holding that "the offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case. A real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl of 18 years, by the security guard certainly makes this case a "rarest of rare" case which calls for no punishment other than the capital punishment."
18. In Kamta Tiwari v. State of M.P. MANU/SC/0722/1996 :
1996CriLJ4158 an innocent helpless girl of seven years was raped by a person who was in a position of her trust. The Supreme Court SC No. 6/2008 41 State Vs Ranjeet FIR No. 488/2007 maintained the death sentence by observing that there were no mitigating circumstances but found aggravating circumstances aplenty,. The following observation of the Supreme Court may be quoted :
"When an innocent helpless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a "rarest of rare" cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes."
19. I may also refer to decision of the Supreme Court in Molai and Anr. v. State of Madhya Pradesh. 2000 All 355. This was a case where a 16 years old girl was preparing for her 10th examination in her house, was raped and thereafter murdered by strangulating her by using her undergarment. Her body was then dumped in the septic tank. It was held that there were no mitigating circumstances and it confirmed the capital punishment.
SC No. 6/2008 42 State Vs Ranjeet
FIR No. 488/2007
20. In State of Maharashtra v. Bharat Dahiwala
MANU./SC0700/2001 : 2002CriLJ218 a three years old girl was raped and murdered. The Sessions Court had sentenced the accused to death but the High Court had acquitted him. After considering the evidence, the Supreme Court observed that the case was perilously near the region of rarest of rare cases as observed by the Supreme Court in Bachan Singh v. State of Punjab, MANU/SC/0111/1990 : 1980CriLJ636. However, since the High Court had acquitted the accused, the Supreme Court in the circumstances imposed a sentence of life imprisonment.
21. The case on hand has all that is required to inflict death penalty. It in the category of rarest of rare cases. In fact, in the above stated authorities, the Supreme Court has consistently held such cases to be rarest of rare in nature. The deceased was just 5 years old. She came from a poor family and her father was a rickshaw puller. The deceased was a vulnerable innocent child. The convict was her neighbour. The relations between the convict and the family of the deceased were cordial. The deceased thus trusted the convict. The convict took advantage of this situation. He took her to a desolate place near the pond. There he raped her and killed her by drowning her in muddy shallow water of the pond. The SC No. 6/2008 43 State Vs Ranjeet FIR No. 488/2007 postmortem report indicate the brutality of the crime. There were as many as 16 injuries on the person of the deceased. In such circumstances I am of the opinion that the offence falls within the rarest of rare cases and is fit to award the capital punishment.
22. In view of these circumstances I award following sentences to the convict :
1. I sentence the convict to rigorous imprisonment for seven years and a fine in the sum of Rs.1000/ under Section 363 IPC. In default of payment of fine, the convict shall further undergo simple imprisonment for one month.
2. Convict is further sentenced to imprisonment for life and a fine in the sum of Rs.1000/ under Section 376 IPC. In default of payment of fine he shall further undergo simple imprisonment for one month.
3. The convict is sentenced with death penalty and a fine in the sum of Rs.1000/ under Section 302 IPC. In default of payment of fine he shall undergo simple imprisonment for one month. The convict be hanged by neck till he is dead.
23. However the capital punishment shall not be executed till its confirmation by Hon'ble High Court. The entire proceedings be submitted to Hon'ble High Court for confirmation in compliance of Section 366 CrPC.
24. The convict is in judicial custody. He is sent to custody for serving the sentence. The convict is in judicial custody since his arrest. Therefore benefit under Section 428 CrPC be given to him SC No. 6/2008 44 State Vs Ranjeet FIR No. 488/2007 and the period undergone by him during trial should be adjusted against the sentence at point no.1 above.
25. The convict is informed that he has a right to prefer an appeal against this judgement.
Announced in the open court on 3.3.2010.
(VINOD KUMAR) Additional Sessions Judge1 North District, THC, Delhi