Delhi District Court
State vs . Tasleem @ Hattu on 26 May, 2012
1 FIR No. 294/2008
PS Bawana
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. 56/09
Unique I.D No. 02404R0016552009
State Vs. Tasleem @ Hattu
S/o Sh. Shamshuddin
R/o Kachhi Colony, Behind Shiv Temple,
Deep Vihar, Pansali, Delhi.
FIR No. : 294/2008
Police Station : Bawana
Under Sections : 302/201/506/376 IPC
Date of committal to session court : 14.01.2009
Date on which judgment was reserved: 22.05.2012
Date of which judgment announced: 25.05.2012
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2 FIR No. 294/2008
PS Bawana
JUDGMENT:
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 25.08.2008 complainant Shamsuddin (PW7) lodged a written complaint in the Police Station Bawana for the registration of the case against his son Tasleem for murdering her daughter Nazmeen @ Gudiya that he lives at Kacchi Colony, behind Shiv Mandir, Deep Vihar, Pansali, Delhi. He is having six sons and a daughter. The name of his daughter is Nazmeen @ Gudiya, aged 12 years. On 23.08.2008 at about 4.00 PM in the day time death of his daughter had occured under unnatural circumstances whose dead body was buried on 24.08.2008 in cemetery (Kabristan) at Mangolpuri as per customs. He has been told today by his son Salman that Gudiya has been murdered by his elder brother Tasleem , he (Salman) had seen on 23.08.2008 at 3.00 PM by peeping through window that Tasleem had asked Gudiya to do the "ganda kaam", which was refused by Gudiya and had told to complain to Papa, on which Tasleem had lifted Gudiya by her neck and had told what she would tell papa let she be killed and Tasleem while pressing the neck of Gudiya, by dragging her mouth with 2 of 71 3 FIR No. 294/2008 PS Bawana a pillow killed her.
Tasleem had threatened him (Salman) and due to fear he (Salman) kept quiet and the said incident has been disclosed to him today by his son (Salman). He be given justice and legal action be taken against Tasleem.
On this complaint, a case u/s 302/201/506 IPC was registered and investigation was carried out by Inspector H.S. Meena. During the course of investigation Inspector H.S. Meena, alongwith complainant Shamsuddin and police staff reached at Kabristan, Mangolpuri, where Shamsuddin while pointing out the grave of her daughter Nazmeen @ Gudiya had stated that on 24.08.2008 he had buried the dead body of his daughter Nazmeen @ Gudiya as per customs regarding which a pointing out memo was separately prepared and the grave was kept under police protection. In the kabristan, in one corner, the complainant shamsuddin identified the clothes of his daughter Nazmeen @ Gudiya which were thrown there after torning them at the time of her burial, which were seized vide a seizure memo. At the instance of complainant Shamsuddin site plan of the 'Grave' and of the kabristan was prepared. During the course of investigation police on 26.08.2008 reached at the house of complainant Shamsuddin, where eye witness Salman, aged 14 years was met, who was interrogated and his 3 of 71 4 FIR No. 294/2008 PS Bawana statement was recorded. At his instance the place of incident was inspected and site plan was prepared. The place of incident inside the room had already been disturbed. One mattress and two pillows kept outside the room under a shade at the instance of complainant Shamsuddin were taken into police possession.
Statement of witness Amit, aged 10 years was recorded. After completion of process for disinterment of the dead body of the deceased, on 28.08.2008, in the presence of SDM Narela Sh. Kunal, Autopsy Surgeon Sh. K. Goel, the family members of deceased, the act of disinterment of dead body was done.
Crime team was called. Site and dead body were got inspected and photographed. Inquest proceedings was conducted. Complainant Shamsuddin and Feroz Khan S/o Shamsuddin identified the dead body. Dead body identification statements were recorded. Dead body was sent to BJRM Hospital for postmortem. Postmortem was got conducted on the dead body of Nazmeen @ Gudiya and after postmortem the dead body was handed over to the relatives/heirs. The exhibits from the mortuary were obtained and seized. Postmortem report was obtained in which doctor had opined, cause of death is Asphyxia as a result of manual pressure over neck (Throttling) Injuries No. (1) & (2) are antimortem, No. (1) is caused by 4 of 71 5 FIR No. 294/2008 PS Bawana manual grip over neck No. (2) is consistent with attempt of sexual intercourse. Manual pressure over neck structure is sufficient to cause death in ordinary course of nature. Time since death is about 5 days.
On the basis of postmortem report and the statements of the witnesses, Section 376 IPC was added.
On 30.08.2008 accused Tasleem @ Hattu was arrested, who was interrogated, who also made a disclosure statement which was recorded. Accused Tasleem @ Hattu also pointed out the place of incident and the pointing out memo was prepared. He was medically examined vide MLC No. 2097/08 dated 31.08.2008 and after his medical examination, the sealed exhibits handed over by the doctor were taken into police possession. Case property was deposited in malkhana. Statements of Salman @ Nevla and Amit were got recorded Under Section 164 Cr.P.C. Scaled map of the site were got prepared from draftsman. Exhibits were sent to FSL.
Upon completion of necessary further investigation challan was prepared for the offences u/s 302/201/506/376 IPC against accused Tasleem @ Hattu and was sent to the court for trial.
5 of 71 6 FIR No. 294/2008 PS Bawana
2. Since the offences u/s 302/376 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 376 (2) (f)/302/506/201 IPC against accused Tasleem was made out. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has examined twenty one witnesses. PW1 Firoz, PW2 Amit, PW3 Dr. N. Masand, Medical Officer, Maharsi Balmiki Hospital, Pooth Khurd, Delhi, PW4 Sh. Salman @ Nevla, PW5 Dr. K. Goel, Aruna Asaf Ali Hospital, Delhi, PW6 SI Manohar Lal, PW7 Shamsuddin, PW8 Inspector Sanjay, PW9 HC Kirti Ballabh, PW10 Vijay Singh, PW11 Constable Hansraj, PW12 Sh. Kunal, IAS Deputy Commissioner, Saiha Mizoram, PW13 HC Satya Pal, PW14 HC Joginder, PW15 HC Suresh Kumar, PW16 Ms. Sunena Sharma, Metropolitan Magistrate, Mahila Courts, East District, Karkardooma, Delhi, PW17 Pooran Pant, PW18 Indresh Kumar Mishra, Senior Scientific Officer 6 of 71 7 FIR No. 294/2008 PS Bawana (Biology), FSL, Rohini, Delhi, PW19 Constable Dharampal, PW20 Inspector H.S. Meena and PW21 HC Suresh Kumar, MHC(M).
5. In brief the witnessography of the prosecution witnesses is as under: PW1 Firoz is the brother of deceased who deposed that on 28.08.2008 he alongwith his father and IO reached at the graveyard (kabristan) Mangolpuri. The SDM Narela and one Mr. Goel were already present. His father identified the grave (kabar) of his sister Nazmeen @ Gudiya. Thereafter, said kabar was dug and dead body of Nazmeen was taken out which was identified by him and his father and as that of Nazmeen @ Gudiya. The dead body was shifted to mortuary, BJRM Hospital and after postmortem the dead body was handed over to them. He proved his statement regarding identification of dead body Ext. PW1/A signed by him at PointA. PW2 Amit is the neighbour of accused Tasleem @ Hattu, who was playing with Salman, Gudiya (sister of Salman @ Nevla) and other boys on the day of incident and deposed regarding the pre and post incident.
7 of 71 8 FIR No. 294/2008 PS Bawana PW3 Dr. N. Masand, Medical Officer, Maharasi Balmiki Hospital, Pooth Khurd, Delhi, who deposed that on 31.03.2008 he examined the patient Tasleem @ Hattu and after examination he was of the view that there was nothing to suggest that Tasleem @ Hattu was not capable of performing sexual act and proved the MLC of accused Tasleem @ Hattu Ext. PW3/A signed by him at PointA. PW4 Sh. Salman @ Nevla, who is the younger brother of accused Tasleem @ Hattu who deposed regarding the incident and proved his statement recorded u/s 164 Cr.P.C Ext. PW4/A bearing his thumb marks at PointA, B & C. He also proved the mattress Ext. P1 and the two pillows Ext. P2 & P.3.
PW5 Dr. K. Goel, Aruna Asaf Ali Hospital, Delhi, who conducted the postmortem on the dead body of Nazmeen and proved the postmortem report Ext. PW5/A. PW6 SI Manohar Lal is the draftsman who deposed that on 07.11.2008 he was called by IO Inspector H.S. Meena (PW20) at the spot i.e House of Shamsudin, Kuchi Colony, Deep Vihar, Near Sector24, 8 of 71 9 FIR No. 294/2008 PS Bawana Rohini. He alongwith IO went to the spot from PS. He inspected the spot alongwith IO and took rough marginal notes and measurements at the spot. On the basis of rough marginal notes and measurements, he prepared the scaled site plan Ext. PW6/A signed by him at PointA. He further deposed that on the same day he also went to the graveyard (Kabar) of Gudiya and at the instance of IO took the rough notes and measurement and on that basis he prepared the scaled site plan on 08.11.2008 Ext. PW6/B signed by him at pointA. After preparing the scaled site plans he had destroyed marginal notes and measurements as such he has not brought the same.
PW7 Shamsuddin is the father of the deceased Nazmeen @ Gudiya, on whose complaint the present case was registered. He proved his complaint made to the police Ext. PW7/A signed by him at PointA. He also proved the clothes (Ext. P4 to Ext. P7) of deceased Nazmeen @ Gudiya which were taken by the police after sealing the same vide memo Ext. PW7/B signed by him at PointA. He proved the seizure memo of the one mattress and two pillows (Ext. P1 to Ext. P3) which were also taken into possession by the police vide memo Ex. PW7/C. He also proved the seizure of dead body after its identification for the purpose of postmortem vide memo Ext. PW7/D, the statement regarding identification of deadbody 9 of 71 10 FIR No. 294/2008 PS Bawana of his daughter Gudiya Ext. PW7/E, the pointing out memo of the grave where his daughter was buried Ext. PW7/F signed by him at PointA. PW8 Inspector Sanjay Gade who deposed that after receiving the message from the IO Inspector H.S Meena, SHO Bawana, he went to the spot i.e Graveyard of Mangolpuri at about 2.00 PM alongwith mobile crime team as he was the incharge of the same. He proved the carbon copy of the crime team report Ext. PW8/A signed by him at PointA. PW9 HC Kriti Ballabh who joined investigation of the case with IO Inspector H.S. Meena (PW20) and deposed on the investigational aspects. Besides proving the other memos also proved the seizure memo Ext. PW9/B signed by him at PointA vide which the sealed pullandas and the sample seal handed over by the autopsy surgeon after the postmortem on the dead body of deceased Nazmeen were seized.
PW10 HC Vijay Singh is the Duty Officer, who proved the endorsement of the SHO at point MarkA on the complaint Ext. PW7/A and deposed that he made a kaymi DD entry no. 14A/15A regarding registration of FIR vide his endorsement at point MarkB on Ext. PW7/B (be read as 10 of 71 11 FIR No. 294/2008 PS Bawana Ext. PW7/A) and proved the copy of the FIR Ext. PW10/A. PW11 Constable Hans Raj, who was working as photographer in the mobile crime team took photographs of the spot and the dead body from different angels and proved the negatives as Ext. PW11/1 to Ext. PW11/10 and the photographs as Ext. PW11/11 to Ext. PW11/20.
PW12 Sh. Kunal, IAS, Dy. Commissioner Saiha Mizoram, who deposed that on 26.08.2008 he was posted as SDM of Narela SubDivision on that day he on the request of SHO PS Bawana Ext. PW12/A vide endorsement at pointA gave the permission to him to disinter the body of deceased from the Mangolpuri cremation ground and on 28.08.2008 the body of deceased disintered from the grave in his presence .
PW13 HC Satya Pal, who deposed that on 04.11.2008 on the instructions of IO he collected the exhibits from MHC(M) vide RC No. 183/21/2008 in sealed condition and got deposited the same in FSL Rohini and after depositing the same he handed over the copy of acknowledgment to MHC(M) and till the exhibits remained in his custody the same were not tampered with in any manner.
11 of 71 12 FIR No. 294/2008 PS Bawana PW14 HC Joginder, who deposed that on 28.08.2008 he alongwith SHO H.S.Meena , HC Kirti Ballabh, complainant Shamsuddin and his son Firoz reached at Kabristan, Mangolpuri where they met SDM Narela and autopsy surgeon and crime team. He took the dead body of the deceased to BJRM hospital mortuary and after the postmortem examination, the exhibits were handed over to him by the doctor and he handed over the same to the IO which were seized vide memo Ext. PW9/B signed by him at Point B. PW15 HC Suresh Kumar is the motorcycle rider who handed over the envelopes at the residence of Ld. MM, DCP (O/D), Joint CP Northern Range and ACP Sultanpuri on govt. motorcycle no. DL1SN5599.
PW16 Ms. Sunena Sharma, Metropolitan Magistrate, Mahila Courts, East District, Karkardooma, Delhi who recorded the statements u/s 164 Cr.P.C of witness PW2 Amit Ext. PW12/A and that of witness PW4 Salman Ext. PW12/B (also Ext. PW4/A) and after recording the statements allowed the copy of the same be given to the IO vide her order Ext. PW12/C signed by her at PointA. 12 of 71 13 FIR No. 294/2008 PS Bawana PW17 Inspector Pooran Pant is the Incharge PP Shahbad Dairy, PS Bawana who deposed that on 30.08.2008 he joined the investigation with SHO H.S. Meena, Ct. Dharam Pal and HC Kirti and accused Tasleem @ Hattu was arrested, at the identification of Beat Constable Dharam Pal vide arrest memo Ext. PW17/A and his personal search was conducted vide memo Ext. PW17/B and also proved his disclosure statement Ext. PW17/C. He also proved the pointing out memo Ext. PW17/D of the house at Deep Vihar, Pansali pointed out by accused Tasleem @ Hattu where he (accused Tasleem @ Hattu) had committed the crime.
PW18 Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology), FSL Rohini, Delhi, who examined the contents of the parcels biologically and serologically and proved the biological report Ext. PW18A and serological report Ext. PW18/B signed by him at PointA respectively.
PW19 Constable Dharampal who joined investigation of the case with IO Inspector H.S. Meena (PW20) and deposed on the investigational aspects. Besides proving the other memos also deposed that he took the accused Tasleem @ Hattu to MB Hospital for medical examination and after his medical examination the concerned doctor had given six pullandas and 13 of 71 14 FIR No. 294/2008 PS Bawana one sample seal sealed with the seal of MB Hospital Pooth Khurd which were seized by the IO vide seizure memo Ext. PW19/A signed by him at PointA. PW20 Inspector H.S. Meena is the Investigating Officer of the case, who deposed on the investigational aspects and proved various memos and also deposed that he prepared a site plan of the places from where clothes were recovered at the instance of PW7 Shamsudin and also of the place of kabar of his daughter Nazmeen @ Gudiya Ext. PW20/B, (previously marked as MarkA). He also proved the site plan Ext. PW20/C (previously marked as MarkC) of the place where accused Tasleem committed wrong act with deceased and also murdered her. He also proved the letter written to autopsy surgeon Ext. PW20/D, the brief facts Ext. PW20/E, form Ext. PW20/F, request application for postmortem Ext. PW20/G, the carbon copy of the memo Ext. PW20/H vide which after postmortem the deadbody was handed over to the heirs of the deceased and deposed that he procured the FSL results Ext. PW18/A, Ext. PW18/B and Ext. PW20/J and filed in the Court.
14 of 71 15 FIR No. 294/2008 PS Bawana PW21 HC Suresh Kumar, who is the MHC(M) who proved the relevant entries of the register no. 19 as Ext. PW21/A, Ext. PW21/B, Ext. PW21/C, Ext. PW21/D and also proved the copies of the road certificates as Ext. PW21/E, Ext. PW21/F and the copies of the acknowledgment given by the FSL of the acceptance of the case property as Ext. PW21/G & Ext. PW21/H. The testimonies of the material prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
6. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
7. Statement of accused Tasleem @ Hattu was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. Accused Tasleem @ Hattu opted not to lead any defence evidence.
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8. Ld. Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and the accused has been falsely implicated in this case at the instance of his younger brother Salman in collusion with his father and investigating officer of the case.
9. While the Ld. Addl. PP for the state on the other hand submitted that prosecution has proved its case beyond reasonable doubt against the accused.
10. I have heard the Ld. Addl. PP for the state and Ms. Poonam Mahajan, Ld. Amicus Curiae for the accused and have also carefully perused the entire record.
MEDICAL EVIDENCE:
11. PW5 Dr. K. Goel, who conducted the postmortem on the dead body of deceased Nazmeen and proved the postmortem report Ext. PW5/A. It is pertinent to reproduce the testimony of PW5 Dr. K. Goel who in his examination in chief has deposed that 16 of 71 17 FIR No. 294/2008 PS Bawana "On 28.08.2008 I was posted at BJRM Hospital and on that day I conducted postmortem on the deadbody of Nazmeen aged about 12 years female daughter of Shamsudin which was sent by Inspector H.S. Meena of PS Bawana. On 26.08.2008 SHO Bawana moved an application regarding exhumation of above said dead body and body was exhumed on 28.8.2008 in the presence of SDM, undersigned, SHO Bawana, crime team and other staff and after exhumation body was taken to mortuary BJRM hospital where further process of postmortem examination was carried out.
The body was under the state of decomposition having blacking discolouration all over body, cuticle was peeled off all over body at places. There was gas stiffening. Hair were peeling off.
On external examination following injuries were found:
1. There was diffuse pinkish area over front of neck scattered over both sides of mid line and upper middle part in total area 6 inches x 3 inches transversely. The skin colour of surrounding area was dark greenish black.
2. There was bruising seen at external vaginal orifice at 5 to 9 O' clock positions. No tearing or lesitation (laceration) seen internally or externally. Signs of decomposition were seen in internal part Any other external injury, if present, was inconseiuous (inconspicuous) due to decomposition.
17 of 71 18 FIR No. 294/2008 PS Bawana INTERNAL EXAMINATION:
On exploration of neck, there was subcupaneous (subcutaneous) and platysmal muscle using (show massive bruising) along with signs of decomposition. The deeper neck muscles were also showing bruising with extravasation of blood in neck layers along with signs of decomposition. There was subluxation of right greater corcua (cornua) of hyoid bone with inward moment (movement) having (with) massive bruising.
OPINION The cause of death was axphysia (asphyxia) as a result of manual pressure over neck. (throttling). Injuries no. 1 & 2 were antemortem in nature. Injury no. 1 was caused by manual grip over neck. Injury no. 2 was consistent with attempt of sexual intercourse. Manual pressure over neck was sufficient to cause death in ordinary course of nature. Time since death was about five days.
The following articles were preserved, sealed and handed over to police:
1. The sheet in which the body was found wrapped.
2. Blood sample of the deceased in gauze piece.
3. Two teeth of the deceased.
4. Vaginal swab of the deceased.
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5. Four bottles containing sand from all four sides of the body collected from the graveyard.
My detailed postmortem report is Ex. PW5/A which bears my signatures at Point A & B."
PW5 Dr. K. Goel was not crossexamined on behalf of accused despite grant of opportunity. Therefore, the testimony of PW5 Dr. K. Goel remained unchallenged.
From the perusal of the postmortem report Ext. PW5/A and the opinion that the cause of death was asphyxia as a result of manual pressure over neck. (throttling). Injuries no. 1 & 2 were antemortem in nature. Injury no. 1 was caused by manual grip over neck. Injury no. 2 was consistent with attempt of sexual intercourse. Manual pressure over neck was sufficient to cause death in ordinary course of nature. Thus it stands duly proved on record that the death of deceased Nazmeen @ Gudiya was homicidal in nature.
AGE OF NAZMEEN @ GUDIYA (SINCE DECEASED):
12. PW4 Salman @ Nevla, during his crossexamination has 19 of 71 20 FIR No. 294/2008 PS Bawana specifically deposed that the age of her sister Gudiya was in between 11 to 12 years at the time of incident.
PW7 Shamsuddin, the father of Nazmeen @ Gudiya (since deceased) in his examinationinchief has categorically deposed that "I have six sons and one daughter. Her name was Najmeen @ Gudiya, aged about 1112 years."
There is nothing in the crossexamination of PW7 shamsuddin, on this aspect so as to impeach his creditworthiness. Moreover during his statement recorded U/s 313 Cr.P.C accused Tasleem @ Hattu has not denied the factum of age of his sister Nazmeen @ Gudiya that she was not aged about 1112 years.
In reply to the question No. 23 that as per PW7 Shamsuddin his father, he has one daughter Nazmeen @ Gudia, aged about 11/12 years i.e his (accused's) sister. Accused Tasleem @ Hattu during his statement u/s 313 Cr.P.C has stated that yes, Nazmeen @ Gudiya is his sister.
20 of 71 21 FIR No. 294/2008 PS Bawana The relevant part of statement u/s 313 Cr.P.C of accused Tasleem @ Hattu reads as under: "Q.23 It is in evidence that as per PW7 Shamsudin your father, he has one daughter Nazmeen @ Gudiya, age about 11/12 years i.e your sister. What you have to say?
Ans. Yes, Nazmeen @ Gudiya is my sister."
In view of above and in the circumstances, it stands established on record that Nazmeen @ Gudiya (since deceased) was aged between 11 to 12 years on the date of the incident.
EYE WITNESS TO THE INCIDENT:
13. The whole case of the prosecution hinges on the testimony of PW2 Amit, PW4 Salman @ Nevla, PW7 Shamsuddin corroborated by other prosecution witnesses in material particulars.
Now, let the testimonies of PW2 Amit, PW4 Salman @ Nevla and PW7 Shamsuddin be perused and analysed.
21 of 71 22 FIR No. 294/2008 PS Bawana PW4 Salman @ Nevla, who is the witness to the preoccurence as well as the witness to the occurence, who in his examination in chief has deposed that his brother Tasleem had taken away forcibly her sister Nazmeen @ Gudiya from the place where they were playing with Binoo, Bishan and later on he (PW4) reached at his house and witnessed the committal of galat kaam upon Nazmeen @ Gudiya and of her murder by accused Tasleem.
It is pertinent to reproduce the examinationinchief of PW4 Salman @ Nevla in which he has deposed that "I reside at the above given address alongwith my brothers, father and one sister Nazmeen @ Gudiya. My mother had expired.
On 23/8/08 my father had gone on his work at about 9.00 am. I alongwith Amit, Binoo, Bishan & Gudiya were playing outside our house near the house of Vinod. There at about 2.00 pm accused present in the court today Tasleem @ Hattu came and took the Gudiya with him by holding her hand. After about 15 minutes Gudia again came to us and told Amit that accused Tasleem is pressing/gagging her mouth with a pillow. We thought that Gudiya is joking and thereafter Gudiya stayed with us. After about 20 mts. Accused again came there and asked Gudiya to accompany him but Gudiya refused and then accused took her forcibly alongwith him. After sometime Gudiya again came to us and told that Tasleem @ Hattu is again 22 of 71 23 FIR No. 294/2008 PS Bawana pressing/gagging her mouth. Thereafter, I left Gudiya at the house of Vinod. There at the house of Vinod accused again came at about 3 pm and asked me to fetch a rickshaw to return the TV and VCD which accused had hired and took Gudiya again with him on a cycle. I asked my friend Amit who was with me to fetch a rickshaw and I went directly to my house. I found the door of the house closed and bolted from inside and I heard the sound of TV. Thereafter, peeping through the window I saw that an obscene movie was being played on the TV and accused was asking Gudiya to do galat kaam/gandi baat with him Gudiya told the accused that she will tell these things to her father (who is my father also). Accused told that you will tell these things to father hence I am killing you and he hold the neck of Gudiya with his hand and lifted her in the air. Thereafter, accused made Gudiya to lay down on the mattress and thereafter he put off his pants and started doing gandi baat with her while lying upon her person. Thereafter, accused put towel/angocha inside the mouth of Gudiya and thereafter pressed/gagged her mouth/face with a pillow. Accused put on his pant and when he was about the open the door I ran away and from a distance I saw that Hattu had plucked some leaves/grass from the roadside and again went inside the house. Thereafter, I went to the house of Vinod and there I told my friends not to disclose about my presence to the accused. Accused came at the house of Vinod and handed over the key of house to me and told me, 'chupchap ghar ja, Gudiya so rahi hai'. I took Amit to my residence and there I saw inside the house that Gudiya was lying on the mattress and one pillow was there on her face. I removed that pillow from her face as well as said angocha from her mouth and Gudiya was not breathing at that time. I was weeping, accused also came there I told him that Gudiya had deied but he did not both and, 'usko koi farak nahin pada' and even there was no tear in his eyes. Accused called my father and when I was about to tell the whole incident to my father, my friend Amit asked me to keep mum otherwise 23 of 71 24 FIR No. 294/2008 PS Bawana accused will kill us also. My sister was burried in the graveyard/kabristan on 26/08/08 and I told whole story to my father on 27/8/08.
At this stage, Ld. APP seeks permission to ask leading questions pertaining to above dates. Heard allowed.
I am illiterate. I do not remember the dates exactly. It is correct that Gudiya was burried on the next day of her death and I narrated the whole incident to my father on the day next to the day on which the Gudiya was burried."
PW4 Salman @ Nevla further deposed that IO prepared site plan at his instance. He proved his statement u/s 164 Cr.P.C Ext. PW4/A and proved the case property, mattress Ext. P1 and two pillows Ext. P2 & Ext. P3.
From the aforesaid narration of PW4 Salman @ Nevla it is very clear that he was present at the time when her sister Nazmeen @ Gudiya was playing with other children and she was forcibly taken away by his brother accused Tasleem @ Hattu and later on when he (PW4) reached at his house, he witnessed the committal of galat kaam upon Nazmeen @ Gudiya and of her murder by accused Tasleem @ Hattu.
24 of 71 25 FIR No. 294/2008 PS Bawana Moreover, the testimony of PW4 Salman @ Nevla, an ocular witness is in consonance with the postmortem report Ext. PW5/A (medical evidence) as has been discussed here in before under the heading "Medical Evidence".
During his cross examination PW4 Salman @ Nevla has deposed "The age of my sister Gudia was in between 11 to 12 years at the time of incident. I and my brother accused Tasleem alongwith deceased remained in the house and all other members used to leave the house at about 9 am for their work. At around 3 pm accused had taken Gudia from the house of Vinod with him. Accused asked me to fetch a rickshaw 1015 minutes before the time he had taken Gudia with him. My sister had never complained against accused Tasleem previously of dragging her mouth to me. She was living with Tasleem happily prior to the incident. Gudia had also not complained that accused forced her to see offseen (obscene) movies and attempted to do galat kam with her. My father did not inquire about the Gudia between 23.8.2008 to 25.08.2008. 1015 persons came to her house on the occasion of Teeja for study purpose. I am illiterate. It is correct that Gudia was ill at the time before incident as she was suffering little fever. I have peeped from the window where accused and Gudia was present at 3.10 pm on 23.8.2008. I have stated to my father when Gudia was buried i.e on 24.8.2008. My father buried Gudia in the graveyard, Mangolpuri. At the time no police official met with my father. Police official visited our house on 25.8.2008. Police had seized two pillows and one mattress. It is wrong to suggest that I am deposing falsely to implicate the accused in a false case. It 25 of 71 26 FIR No. 294/2008 PS Bawana is also wrong to suggest that entire writing work was done with collusion of the police officials."
The testimony of PW4 Salman @ Nevla has been corroborated by PW2 Amit, who was playing with him and Gudiya (since deceased) who is the witness to the preoccurence as well as to the post occurence, who in his examinationinchief has deposed that "I reside at the above address (House near Malik Properties Kachi Colony, Deep Vihar, Pansali, Delhi). It was Saturday on that day and at about 2.00 pm I alongwith Gudiya (sister of Salman @ Nevla), Binu @ Binod, Bishan and Salman were playing near the house of Bittoo. There Tasleem @ Hattu accused present in the court today (correctly identified) came and took away his sister Gudiya forcibly with him. After 10 or 15 minutes Gudiya came to us running and told that his brother Hattu is pressing/gagging her mouth with a pillow. I thought that she is joking. After about 20 minutes accused Tasleem again came there and took Gudiya with him. After sometime Gudiya again came to us and told that accused Tasleem @ Hattu is trying to kill her by pressing her mouth and also confining her in a room. Thereafter, I & Salman left Gudiya at the residence of Vinod.
At about 3 pm accused came at the house of Vinod and asked Salman to fetch a rickshaw for delivering TV & VCD and accused again took Gudiya forcibly with her. Salman asked me to fetch a rickshaw and told me that he is going to his house. I went to a rickshaw puller namely 26 of 71 27 FIR No. 294/2008 PS Bawana Ramu who resides in the neighbourhood and told him to reach at the house of Khan uncle as the son of Khan uncle is calling him for delivering TV & VCD. Ramu told me that he will go to the house of Khan uncle at about 4.00 pm. When I was going towards the house of Salman my mother called me and I went to my house. After sometime Salman came to me weeping and told me, "my brother Tasleem @ Hattu had killed my sister Gudiya. I went to the house of Salman alongwith him and saw that Gudiya was lying on a mattress and a red colour pillow was on her face which was removed by Salman and at that time Gudiya was not taking breath. Salman told me that he will narrate the entire story to his father but I asked him to keep mum otherwise accused will kill us also. After 2 days Salman told this incident to his father."
From the aforesaid narration of PW2 Amit, it is very much clear that he was present at the time when he was playing with PW4 Salman @ Nevla, Nazmeen @ Gudiya and other children and she was forcibly taken away by accused Tasleem @ Hattu and later on he alongwith PW4 Salman @ Nevla reached at place of occurence found that Gudiya was lying on a mattress and a red colour pillow on her face and she was not taking breath.
During his cross examination PW2 Amit has deposed that 27 of 71 28 FIR No. 294/2008 PS Bawana "My friend Salman is 4 or 5 years older to me and the Gudiya was younger to Salman. I studied in Nagar Nigam Prathmik Vidayala, Rohini, Sector25. The distance between my house and the house of Bittoo where we were playing is about 9 or 10 meter. Accused Taslim @ Hattu had taken Gudiya thrice. I do not remember the exact time when Gudiya came to us again but it must have been around 2.15 pm which I am telling only by way of approximation. We had enquired the time for 2.00 pm from the mother of Vinod when she was going for her work. She goes to work everyday around 2.00 pm. There is no numbering on the houses of kachi colony, Deep Vihar. I made Gudiya sit in the house of Vinod at about 2.30 pm. Before the arrival of Hattu at the house of Vinod, I myself, Vinod, Bishan, Gudiya & Salman @ Nevla were there. Gudiya was sitting inside the house of Vinod and we were playing gilli danda in the street at the gate of house of Vinod. At the house of Vinod sister of Vinod was there with Gudiya and one brother of Vinod namely Dinesh was taking food. Vinod and Bishan are brothers. It is correct that when Hattu came to take Gudiya from the house of Vinod, his sister and Dinesh were present. Hattu asked Salman to fetch a rickshaw and Salman instead of going himself asked me to fetch a rickshaw and told me that he is going to his house. It is correct that when I left to fetch a rickshaw Salman was drinking water at the house of Vinod and my that time had not left to his house. When Salman informed me regarding the murder of Gudiya by Hattu and I accompanied him to his house, at that time my mother was sleeping and my one younger sister and younger brother was also at home. While leaving the house I did not inform my mother as she was sleeping but I informed my younger brother and I told the same to the police officials also. I can say that Gudiya was not taking breath as Salman had observed this fact by putting his finger near the nostrils of Gudiya in my presence whether or not she was breathing and accordingly we came to know that she was not breathing. Salman had narrated me the 28 of 71 29 FIR No. 294/2008 PS Bawana whole incident at my house when he had come to call me and thereafter I went alongwith him to his house. We did not stay in the house of Salman for a long time and just after being confirmed that Gudiya has died we left the house of Salman. Shortly after Salman removed the pillow from the face of Gudiya and confirmed that Gudiya had died we left the house of Salman. Salman also removed Gamcha/angocha from the mouth of Gudiya which was of red colour. I do not know whether the pillow was of form or rooi which was of some white in colour from inside but I do not remember the colour of outer cover of pillow. The police officials did not obtain any signature or thumb impression on the statement. I can write my name. The police officials recorded my statement after making requisite enquires from me. It is further incorrect to suggest that I have deposed falsely against the accused Hattu as Salman who is my friend asked me to do to save Salman. It is further incorrect to suggest that I have deposed falsely against the accused Hattu as Gudiya was my friend. It is further incorrect to suggest that Hattu did not kill Gudiya. It is further incorrect to suggest that Salman killed Gudiya. It is further incorrect to suggest that I am deposing falsely at the instance of complainant."
Inspite of incisive crossexamination of PW2 Amit and PW4 Salman @ Nevla as reproduced hereinabove nothing material has been brought out on the record so as to impeach their creditworthiness. In the witness box they have withstood the test of crossexamination and their testimonies are consistent throughout. On careful perusal and analysis of testimonies of PW2 Amit and PW4 Salman @ Nevla. I find that their testimonies are natural, clear, cogent, consistent, trustworthy and inspires 29 of 71 30 FIR No. 294/2008 PS Bawana confidence. There is nothing in their statements to suggest that they had an animus against the accused to falsely implicate him in the case.
Time since death in postmortem report Ext. PW5/A has been opined as about 5 days, by PW5 Dr. K. Goel. Concides with time when accused Tasleem @ Hattu was present with Nazmeen @ Gudiya (since deceased). Prosecution discharged its initial burden of proving that accused Tasleem @ Hattu and Nazmeen @ Gudiya (since deceased) were together at place and time of close proximity of death of Nazmeen @ Gudiya.
Accused Tasleem @ Hattu was under an obligation to explain how and under what circumstances he had left Nazmeen @ Gudiya (the deceased), his complete denial becomes additional link in prosecution case. The absence of such an explanation both in the Section 313 Cr.P.C statement by accused and his omission to lead any evidence in this case has an adverse impact on his plea.
The testimony of PW4 Salman @ Nevla that he narrated the whole incident to his father on the day next to the day on which the Gudiya was burried is corroborated by his father PW7 Shamsuddin to whom he disclosed the incident on 25.08.2008 regarding which PW7 Shamsuddin in his examination in chief has deposed that his son Salman (PW4) told him 30 of 71 31 FIR No. 294/2008 PS Bawana that he was under fear and has not stated yet but Gudiya was killed by Tasleem by dragging her mouth with the pillow on 23.08.2008 and a towel was put inside her mouth. He also stated that accused has also did sexual assault with her.
The statement of PW7 Shamsuddin is relevant Under Section 6 & 8 of The Indian Evidence Act, 1872 as soon after the incident he was disclosed on 25.08.2008 by PW4 Salman @ Nevla about the commission of the offence by accused Tasleem and soon thereafter, on 25.08.2008 itself complaint Ext. PW7/A was made by PW7 Shamsuddin to the police.
PW7 Shamsuddin has also deposed that accused Tasleem also misled him by approaching him at his workplace telling him that something had happened with Gudiya. It is pertinent to reproduce the relevant part of examination in chief of PW7 Shamsuddin. It reads as : "I have six sons and one daughter. Her name was Najmeen @ Gudia, aged about 1112 yrs. I used to went from my house to my work place at about 9 am. On 23.8.2008 I asked my daughter Gudia to take food but she was not well but I have given food of my own and she had taken only one chapati and thereafter I went to my work place. On that day Gudia was 31 of 71 32 FIR No. 294/2008 PS Bawana having little fever. At about 4.30/5 pm my son/accused Tasleem @ Hattu came to my work place i.e in a shop Hanuman Chowk, Begum Pur and told me that something had happened with Gudia my daughter. I told him that inspite of came to me who would have taken her to hospital and when I returned to my house, I came to know that accused Tasleem had already taken my daughter to the hospital. She was already expired. Accused Tasleem has gone to work place after he has taken Gudia to hospital and brought back in the house.
On the next day i.e On 24.08.2008 she was kept in the graveyard at Mangol Puri as per our customs. On 25.08.2008 there was a function Teeja in our house and number of children used to come to our house for studies. My son Salman asked me to call Gudia also but I told him that Gudia was not at all in the house. Then my son Salman told me that he was under fear and has not stated yet but Gudia was killed by Tasleem by dragging her mouth with the pillow on 23.8.2008 and a towel was put inside her mouth. He also stated that accused has also did sexual assault with her. Thereafter, I made a complaint to the police which is Ex. PW7/A signed by me at point A."
During his crossexamination PW7 Shamsuddin has negated the suggestions that he is deposing falsely at the instance of police officials or that he wanted to implicate the accused in a false case as he did not like him as he was living with his inlaws house.
32 of 71 33 FIR No. 294/2008 PS Bawana There is nothing in the cross examination of PW7 Shamsuddin so as to impeach his creditworthiness.
14. Ld. Counsel for the accused submitted that PW4 Salman @ Nevla in his examination in chief has deposed that "There at the house of Vinod accused again came at about 3 pm and asked me to fetch a rickshaw to return the TV and VCD which accused had hired and took Gudiya again with him on a cycle." Meaning thereby that by the time when accused took Gudiya again TV and VCD should be there but no TV and VCD was recovered on the spot and no witness states that these were there and there is no evidence that they have been returned.
I have carefully perused and analysed the evidence on record. PW4 Salman @ Nevla in his examinationinchief has categorically stated that when he went to his house, he found the door of the house closed and bolted from inside and he heard the sound of T.V. Thereafter, peeping through the window he saw that an obscene movie was 33 of 71 34 FIR No. 294/2008 PS Bawana being played on the T.V and accused was asking Gudiya to do galat kaam/gandi baat with her.
PW4 Salman @ Nevla was not crossexamined on this aspect. Nor any suggestion was put to him during his entire lengthy and incisive crossexamination regarding the T.V and VCD.
In the circumstances, it is on the record as an established fact that T.V and VCD were there, when accused took Gudiya again to the house. As regards the nonrecovery of T.V and VCD, PW20 Inspector H.S. Meena in his cross has specifically deposed that "On a visit on 25.08.2008 to the house of Shamsuddin no CD, VCR, DVD player was recovered as the spot had already been disturbed".
In view of above prosecution discharged its initial burden of proving T.V and VCD at the place and time of close proximity of death of Gudiya.
34 of 71 35 FIR No. 294/2008 PS Bawana The accused was under an obligation to explain, how and under what circumstances they (T.V, VCD) were missing from the scene of crime, his complete denial and absence of an explanation in the Section 313 Cr.P.C statement, becomes an additional link in prosecution case.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
15. Ld. Counsel for the accused submitted that PW4 Salman @ Nevla in his crossexamination has deposed that "My sister had never complained against accused Tasleem previously of dragging her mouth to me. She was living with Tasleem happily prior to the incident. Gudia had also not complained that accused forced her to see offseen (obscene) movies and attempted to do galat kam with her."
The perusal and analysis of the testimony of PW4 Salman @ Nevla clearly indicates that he has deposed as to what had been observed and came to his knowledge while living in the family prior to the date of incident. His testimony is clear, natural, unblemished, convincing, cogent, 35 of 71 36 FIR No. 294/2008 PS Bawana trustworthy and inspires confidence.
Nothing more can be read in this part of cross examination of PW4 Salman @ Nevla regarding which the said plea has been raised by the Ld. counsel for the accused. Further Ld. Counsel for the accused failed to explain as to what benefit she intends to reap from such plea.
In the circumstances, the plea so raised is of no assistance and consequence to the accused.
16. Ld. Counsel for the accused submitted that PW4 Salman @ Nevla in his crossexamination has deposed that "It is correct that Gudiya was ill at the time before incident as she was suffering from little fever."
Ld. Counsel for the accused failed to explain as to object and purpose for raising such plea and as to what benefit she intends to reap from such plea.
36 of 71 37 FIR No. 294/2008 PS Bawana For the sake of argument, if it is taken that such plea has been raised with the object that Gudiya died because of fever, is totally unfounded and devoid of substance, in view of the postmortem report Ext. PW5/A wherein PW5 Dr. K. Goel has opined "The cause of death was axphysia (asphyxia) as a result of manual pressure over neck. (Throttling). Injuries no.1 & 2 were antemortem in nature. Injury no. 1 was caused by manual grip over neck. Injury no. 2 was consistent with attempt of sexual intercourse. Manual pressure over neck was sufficient to cause death in ordinary course of nature.........."
In the circumstances, there is no substance in the plea so raised by the counsel for the accused.
17. Ld. Counsel for accused submitted that PW7 Shamsuddin in his examinationinchief has deposed that "My son Salman asked me to call Gudia also but I told him that Gudia was not at all in the house."
Meaning thereby that by that time PW7 shamsuddin was not sure of the death of his daughter.
37 of 71 38 FIR No. 294/2008 PS Bawana I have carefully perused and analysed the evidence on record. The said plea appears to have been raised after misreading the testimony of PW7 Shamsuddin in a pick and choose manner. PW7 Shamsuddin in his examinationinchief has very specifically deposed that on 24.08.2008 she (Gudiya) was kept in graveyard at Mangolpuri as per their customs. On 25.08.2008 there was a function Teeja in their house and number of children used to come to their house for studies. His son Salman (PW4) asked him to call Gudiya also but he (PW7) told him (PW4 Salman) that Gudiya was not at all in the house. Then his son Salman told him that he was under fear and has not stated yet but Gudiya was killed by Tasleem by dragging her mouth with pillow on 23.08.2008 and a towel was put inside her mouth. He (PW4 Salman) also stated that accused has also did sexual act with her.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
18. Ld. Counsel for accused submitted that PW7 Shamsuddin in his crossexamination has deposed that 38 of 71 39 FIR No. 294/2008 PS Bawana "Prior to the incident number of times deceased complained of beating by the accused but she never complained about his character."
The perusal and analysis of the evidence of PW7 Shamsuddin clearly indicates that he has deposed as to what had come in his knowledge in an ordinary manner as the head of the family, about accused Tasleem prior to the date of incident. His testimony is natural, unblemished, convincing, trustworthy and inspires confidence. Nothing more can be read in this part of crossexamination of PW7 Shamsuddin regarding which the said plea has been raised by the Ld. Counsel for accused. Further Ld. Counsel for accused failed to explain as to what benefit she intends to reap from such plea.
In the circumstances the plea so raised is of no assistance and consequence to the accused.
19. In view of above and in the circumstances, I am of the considered opinion that prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 23.8.2008 at about 2.00 pm in his house at Kachi Colony, Shiv Mandir at Deep Vihar Pansali, Delhi, accused Tasleem @ Hattu committed rape upon his sister 39 of 71 40 FIR No. 294/2008 PS Bawana Nazmeen @ Gudiya aged about 12 years on the mattress (Ext.P1) lying on the floor of the room after showing her blue film and after raping her sister Nazmeen @ Gudiya accused Tasleem @ Hattu pressed the neck of her sister and thereafter, pressed her mouth with pillows (Ext. P2 & Ext. P3) with the intention of causing bodily injury which he knew was sufficient in the ordinary course of nature to cause death and after committing murder of her sister Nazmeen @ Gudiya accused Tasleem @ Hattu criminally intimidated his younger brother PW4 Salman @ Nevla, eye witness of the incident not to disclose the incident to anybody and threatened PW4 Salman @ Nevla also to kill and after causing murder of his sister Nazmeen @ Gudiya accused after believing that he had committed murder of his sister Nazmeen @ Gudiya caused disappearance of evidence by putting some grass into the mouth of deceased Nazmeen @ Gudiya with the intention to protect himself from legal punishment.
I, accordingly, hold accused Tasleem @ Hattu guilty for the offences punishable u/s 376(2)(f)/302/506/201 IPC and convict him 40 of 71 41 FIR No. 294/2008 PS Bawana thereunder.
DISINTERMENT OF DEADBODY OF NAZMEEN @ GUDIYA AND ITS IDENTIFICATION:
20. PW9 HC Kirti Ballabh has deposed that on 28.08.2008 he joined investigation and on that day he alongwith IO and with other staff went to Graveyard, Mangolpuri complainant and his son Feroz were also with them where SDM Narela alongwith autopsy surgeon along with their team also came there. Crime team was also arrived at the spot. In the presence of SDM dead body of the child was dug out from the graveyard and the dead body was sent to BJRM Hospital for postmortem after the dead body was identified by father of the deceased through constable Yogender. Crime Team inspected the spot and got the spot photographed.
His testimony has been corroborated by PW1 Firoz, PW5 Dr. K. Goel, PW7 Shamsuddin, PW8 Inspector Sanjay Gade, PW11 Ct. Hans Raj, PW12 Sh. Kunal, IAS Deputy Commissioner, Saiha, Mizoram, PW14 HC Joginder and PW20 Insp. H.S. Meena.
41 of 71 42 FIR No. 294/2008 PS Bawana PW1 Firoz in his examination in chief has deposed that "On 28.08.2008 I alongwith my father and IO reached at the graveyard (kabristan) Mangolpuri. The SDM Narela and one Mr. Goel were already present. My father identified the grave (kabar) of my sister Nazmeen @ Gudiya. Thereafter, said kabar was dug and dead body of Nazmeen was taken out which was identified by me and my father and as that of Nazmeen @ Gudiya. The dead body was shifted to mortuary, BJRM Hospital and after postmortem the dead body was handed over to us. My statement regarding identification of dead body Ext. PW1/A signed by me at Point A."
PW5 Dr. K. Goel in his examination in chief has deposed that "On 28.08.2008 I was posted at BJRM Hospital and on that day I conducted postmortem on the deadbody of Nazmeen aged about 12 years female daughter of Shamsudin which was sent by Inspector H.S. Meena of PS Bawana. On 26.08.2008 SHO Bawana moved an application regarding exhumation of above said dead body and body was exhumed on 28.8.2008 in the presence of SDM, undersigned, SHO Bawana, crime team and other staff and after exhumation body was taken to mortuary BJRM hospital where further process of postmortem examination was carried out.
PW7 Shamsuddin in his examination in chief has deposed that 42 of 71 43 FIR No. 294/2008 PS Bawana "On 28.8.2008 SDM along with one doctor and police persons came to Mangol Puri graveyard (Kabristan). At my instance and identification of grave of my daughter the body of my daughter was taken out after digging the grave. The body was found in decomposed condition. I identify the dead body of my Gudia. The dead body was taken into possession for the purpose of postmortem vide memo Ex. PW7/D signed by me at pointA. Deadbody was removed to mortuary BJRM hospital. My statement regarding identification of deadbody of my daughter Gudia was recorded, same is Ex. PW7/E signed by me at pointA. After postmortem deadbody was handed over to me we have buried the deadbody in the graveyard on the same day. My statement was also recorded. I have also signed the pointing out memo of the grave where my daughter was buried and same is Ex. PW7/F signed by me at point A."
PW8 Insp. Sanjay Gade in his examination in chief has deposed that "On 28.08.2008, after receiving the message from the investigating officer Inspector SS Meena, SHO Bawana, I went to the spot i.e Grave Yard of Mangolpuri, Delhi at about 2.00 pm alongwith Mobile Crime Team as I was the incharge of the same. Constable Hans Raj, photographer of mobile team took photographs of the scene of incident from different angels on my direction. In my presence, dead body was taken out from the graveyard. Number of persons and police officials were present at the spot. SDM of the area and autopsy surgeon also came at the spot. The deadbody was identified by the father of the deceased namely Shamsudin. I remained at the spot from 2.00 pm to 3.45 pm. After preparing the crime team report, I handed over the same to the IO. The original report is not in the judicial file. I have brought the carbon copy of the report, same is marked PW8/A 43 of 71 44 FIR No. 294/2008 PS Bawana which is signed by me at pointA."
PW11 Ct. Hans Raj in his examination in chief has deposed that "On 28.08.2008 I was working as photographer in mobile crime team outer distt. on that day I went to spot alongwith SI Sanjay I/C of mobile crime team at graveyard, Mangolpuri where SDM, autopsy surgeon were found present at the grave yard taken out after digging the land which was identify by Shamsudin which belongs to which (his) daughter Gudia @ Nazmeen. I took the photographs of the spot and i.e body from different angles. The 10 negatives are Ex. PW11/1 to Ex. PW11/10 & the photographs are Ex. PW11/11 to PW11/20."
PW12 Sh. Kunal, IAS Deputy Commissioner, Saiha Mizoram in his examination in chief has deposed that "On 26.08.2008 I was posted as SDM, of Narela SubDivision. On that day, I on the request of SHO, PS Bawana which is Ex. PW12/A vide endorsement at point A gave the permission to him to disinter the body of deceased from the Mangolpuri cremation ground. Further on 28.08.2008 the body of the deceased was disintered from the grave in my presence.
Prior to disinter the body SHO of concerned PS disclosed me the facts of the present case and when the body was disintered the same was identified by her father and the body was sent for postmortem. I order regarding the disinter the body. Same is Ex. PW12/A which bears my 44 of 71 45 FIR No. 294/2008 PS Bawana signatures at point A. When the body was disinter the same was decomposed condition. The body was seized vide memo already Ex. PW7/D which bears the signatures of father of deceased at point A."
PW14 HC Joginder in his examination in chief has deposed that "On 28.08.2008, I was posted as constable in P.P. Shahbad Dairy, P.S. Bawana. On that day, I alongwith SHO H.S. Meena, HC Kirti Ballabh, complainant Shamsudeen and his son Firoz reached at Kabristan, Mangolpuri where we met SDM Narela and autopsy surgeon and crime team. The dead body was taken out from the grave. The dead body was identified by Shamsudeen belonging to his daughter Nazmeen @ Guddi. The dead body was seized vide memo Ex. PW7/D bearing my signature at point B. Crime team inspected the spot and took the photograph and I took the dead body of the deceased to BJRM Hospital mortuary. IO also reached in the mortuary. Postmortem examination on the body of the deceased was got conducted and after postmortem examination, doctor handed over pullandas which I handed over to the investigating officer and the same were seized vide memo Ex. PW9/B bearing my signature at point B. IO recorded my statement."
PW20 Insp. H.S. Meena in his examination in chief has deposed that "On 28.08.2008 both the SDM of the area and the autopsy surgeon were contacted telephonically and the time was fixed at 2.00 PM for reaching at the grave/spot. Accordingly, we reached at the spot and there SDM, autopsy surgeon with his team as well as the crime team had also 45 of 71 46 FIR No. 294/2008 PS Bawana reached. Shamshudin and his son firoz had also reached there. In the presence of SDM and autopsy surgeon the grave of Najmeen @ Guriya was dug out. The body so retrieved from the grave which was in the decomposition stage was identified by Shamshudin and his son Firoz. Which was got photographed from the crime team and the crime team also inspected the spot. The dead body was taken into custody vide memo Ex. PW7/D signed by me at PointC and thereafter, the dead body was sent through Ct. Joginder to the mortuary of BJRM Hospital. Statements of witnesses were recorded. Thereafter, SDM and autopsy surgeon left, we alongwith Shamshudin and his son Firoz reached at BJRM Hospital. After preparing the inquest papers, brief facts, filling up of Form No. 25.35 (1) B, request for conducting the postmortem on the dead body was made to the incharge mortuary BJRM Hospital. The brief facts is Ex. PW20/E, Form is Ex. PW20/F and request application for postmortem is Ex. PW20/G, all signed by me and also got identified the dead body by Shamshuddin and his son Firoz and their statements were also got recorded to this effect. Same are Ex.PW7/E & Ex. PW1/A signed by me. I got conducted the postmortem. After postmortem the dead body was handed over to the heirs of the deceased and memo in this regard was prepared, the carbon copy of which is Ex. PW20/H signed by me at pointA. After postmortem the doctor handed over the exhibits which were taken into possession vide memo Ex. PW9/B signed by me at PointC. I also recorded the statements of the witnesses. On returning to the PS the case property was deposited in the malkhana with the MHC(M)."
PW6 SI Manohar Lal also proved the scaled site plan of grave (kabar) of Nazmeen @ Gudiya. He deposed that on 07.11.2008 he alongwith IO (PW20 Inspector H.S. Meena) went to the graveyard (kabar) of Gudiya 46 of 71 47 FIR No. 294/2008 PS Bawana and at the instance of IO took the rough notes and measurement of grave (kabar) of Gudiya and on that basis he prepared the scaled site plan on 8.11.2008 the same is Ex.PW6/B signed by him at point A. From the aforesaid narration of the said prosecution witnesses it stands established on record that on 28.08.2008 the dead body of Nazmeen @ Gudiya was disintered from Graveyard Mangolpuri and was identified as dead body of Nazmeen @ Gudiya by PW1 Firoz vide his statement Ext. PW1/A and by PW7 Shamsuddin vide his statement Ext. PW7/E. There is nothing in the crossexamination of said witnesses so as to impeach their creditworthiness. Their testimonies are unblemished, clear, cogent, creditworthy and inspires confidence.
21. Ld. Counsel for accused submitted that PW7 Shamsuddin in his cross examination has deposed that SDM came alongwith 1516 person including police official but none of the witness states that any of the public persons were present at the spot. While PW1 Firoz in his examinationin chief has deposed that only two persons SDM and Mr. Goel was present.
47 of 71 48 FIR No. 294/2008 PS Bawana I have carefully perused and analysed the evidence on record. The evidence of various witnesses as discussed & reproduced hereinabove clearly establishes on record that the dead body of Gudiya was disintered on 28.08.2008 and postmortem was conducted on it by PW5 Dr. K. Goel who proved the postmortem report Ex. PW5/A. PW8 Insp. Sanjay Gade in his examination in chief has clearly deposed that number of persons and police officials were present at the spot (Graveyard Mangolpuri).
Even otherwise nonmentioning of the presence of public persons in the statements of other prosecution witnesses regarding which plea has been raised by Ld. Counsel for accused, does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Moreover, there are bound to some discrepancies in the narration of witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. (Ref. Leela Ram Vs. State of Haryana (1999) 9 SCC 525).
22. Ld. Counsel for accused submitted that PW8 Insp. Sanjay Gade in his crossexamination has deposed that "I had directed the IO to lift the 48 of 71 49 FIR No. 294/2008 PS Bawana exhibits but I am not aware how many exhibits were picked by him." Meaning thereby that exhibits were lifted by the IO only not by the crime team and no mentioning was there whether the crime team arrived in his presence or not and who was the photographer of crime team/or public photographer.
As far as the said plea of Ld. Counsel for accused is concerned, the same is totally devoid of substance. Ld. Counsel for accused failed to explain as to with regard to which lifting of 'Exhibits' from spot, she has crossexamined the PW8 Insp. Sanjay Gade. In his examinationinchief PW8 Insp. Sanjay Gade as reproduced hereinabove has specifically deposed that he was the Incharge of crime team and Ct. Hans Raj, Photographer of mobile team took photographs of the scene of incident from different angles on his direction. Moreover, PW20 Insp. H.S. Meena in his examinationinchief has clearly deposed that, after postmortem the doctor handed over the 'exhibits' which were taken into possession vide memo Ext. PW9/B signed by him at Point 'C' (the details of which are mentioned in the seizure memo Ext. PW9/B).
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23. As regard the plea of Ld. Counsel for the accused that there are contradictions in the testimony of the prosecution witnesses in the timings, place and disinterment of dead body. I have carefully perused and analysed the evidence of the prosecution witnesses namely PW9 HC Kirti Ballabh, PW1 Firoz, PW5 Dr. K. Goel, PW7 Shamsuddin, PW8 Insp. Sanjay Gade, PW11 Ct. Hans Raj, PW12 Sh. Kunal and PW14 HC Joginder as discussed and reproduced hereinabove. On careful perusal and analysis, I did not find any material contradiction in the testimony of the said prosecution witnesses on the aspect regarding which the plea has been raised by the Ld. Counsel for the accused except for the minor contradictions which are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence. Moreover, there are bound to be some discrepancies in the narration of witnesses when they speak out details.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
50 of 71 51 FIR No. 294/2008 PS Bawana In the circumstances there is no substance in the plea so raised by the Ld. Counsel for the accused.
24. Ld. Counsel for accused submitted that PW6 SI Manohar Lal has deposed in his examination in chief that the scaled site plans were prepared on 08.11.2008, meaning thereby after three months of the incident.
I have carefully perused the record and the evidence of PW6 SI Manohar Lal. No doubt the scaled site plans as per PW6 SI Manohar Lal of the spot i.e house of Shamsuddin, Kuchi Colony, Deep Vihar, Near Sector24, Rohini Ext. PW6/A and that of graveyard (kabar) of Gudiya Ext. PW6/B were prepared on 08.11.2008, after about three months of the incident. PW6 SI Manohar Lal in his examinationinchief has specifically deposed that on 07.11.2008 he was called by IO Inspector H.S. Meena (PW20) at the spot i.e House of Shamsudin, Kuchi Colony, Deep Vihar, Near Sector24, Rohini. He alongwith IO went to the spot from PS. He inspected the spot alongwith IO and took rough marginal notes and measurements at the spot. On the basis of rough marginal notes and measurements, he prepared the scaled site plan Ext. PW6/A signed by him at PointA. He further deposed that on the same day he also went to the 51 of 71 52 FIR No. 294/2008 PS Bawana graveyard (Kabar) of Gudiya and at the instance of IO took the rough notes and measurement and on that basis he prepared the scaled site plan on 08.11.2008 Ext. PW6/B signed by him at pointA. From the testimony of PW6 SI Manohar Lal it is clearly indicated that he prepared the scaled site plans Ext. PW6/A and Ext. PW6/B on 08.11.2008 on the next day of his visits to spots on 07.11.2008. In the circumstances, there is no delay on the part of PW6 SI Manohar Lal. However, despite grant of opportunity no explanation was obtained from IO PW20 Inspector H.S. Meena on this aspect during his crossexamination. For not availing of such opportunity now it does not lie in the mouth of the accused to raise such a plea. Moreover, it does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
25. Ld. Counsel for the accused submitted that exhibits were deposited in the FSL after the delay of about three months on 04.11.2008 of the date of incident on 23.08.2008, therefore, there is full chance of tampering of the same.
52 of 71 53 FIR No. 294/2008 PS Bawana PW13 HC Satya Pal who deposed that on 04.11.2008 on the instructions of IO he collected the exhibits from MHC(M) vide RC No. 183/21/2008 in sealed condition and got deposited the same in FSL Rohini and after depositing the same he handed over the copy of acknowledgment to MHC(M) and till the exhibits remained in his custody the same were not tampered with in any manner.
During his crossexamination PW13 HC Satya Pal has deposed that "It is wrong to suggest that I tampered with the exhibits or I did not deposit them in the office of FSL in sealed condition."
No doubt, as per PW13 HC Satya Pal, the exhibits were deposited in FSL on 04.11.2008 of about more than two months of the date of incident.
Investigating agency was expected to expedite the deposition of exhibits in the FSL. But the deposition of exhibits on 04.11.2008 in FSL, from the date of incident on 23.08.2008 does not by itself lead to the inference that the exhibits were tampered with. Moreover, in view of FSL 53 of 71 54 FIR No. 294/2008 PS Bawana report Ext. PW20/J, describing the parcels/exhibits, with seals intact and tallied with the specimen seals as per forwarding letter (FSL Form) and in view of the testimony of PW21 HC Suresh Kumar, MHC(M), the theory of suspicion of tampering of exhibits does not hold water, who in his examinationinchief has deposed that "One pullanda sealed with the seal of KG BJRM Hospital containing four bottles having sand was also sent through Constable Satpal on 4.11.2008 to FSL Rohini vide road certificate No. 182/21/08 and the entry was made infront at point A of entry at Sl. No. 278/08 Ex. PW21/C."
In the circumstances, there is no substance in the plea of suspicion of tampering of exhibits, so raised by the Ld. Counsel for the accused.
VIRILITY OF ACCUSED TASLEEM & HATTU :
26. PW3 Dr. N. Masand in his examinationinchief has deposed that "On 31/3/08 I was posted at Maharshi Valmiki hospital as Medical Officer. On that day one Tasleem S/o Shamsuddin was brought in the casualty at about 1.25 am by const. Dharampal Singh with alleged history of sexual assault by Tasleem @ Hattu. I had medically examined him vide MLC Ex. PW3/A signed by me at point A and was of the view that there 54 of 71 55 FIR No. 294/2008 PS Bawana was nothing to suggest that the Tasleem @ Hattu was not capable of performing sexual act."
During his cross examination PW3 Dr. N. Masand has deposed that "My duty hour was 9 pm to 9 am. No other person was there alongwith Tasleem except Const. Dharampal. I cannot tell if the police constable told me about the time of incident. I have taken six sample of the accused."
From the aforesaid narration of PW3 Dr. N. Masand, it is clear that there was nothing to suggest that accused Tasleem @ Hattu was not capable of performing sexual act.
There is nothing in his crossexamination so as to impeach his creditworthiness.
In the circumstances, it stands established on the record that accused Tasleem @ Hattu was capable of performing sexual act.
55 of 71 56 FIR No. 294/2008 PS Bawana BIOLOGICAL AND SEROLOGICAL EVIDENCE :
27. PW18 Indresh Kumar Mishra in his examinationinchief has deposed that "On 04.11.2008, 11 parcels in sealed condition was received by FSL Rohini, same was assigned to me for analysis purpose. I examined the contents of parcel after opening the seal, biologically and serologically. My biologically detailed reports is Ex. PW18/A and serologically report is Ex. PW18/B signed by me at point A respectively."
As per FSL report Ext. PW18/A, the description of articles contained in parcel reads as under: DESCTRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel 'A' : One sealed cloth parcel sealed with the seal of "HSM"
containing exhibits 'A(i)', 'A(ii)', 'A(iii)' and 'A(iv)'.
Exhibit'A(i)' : One dirty shawl.
Exhibit'A(ii)' : One dirty cut/torn lady's shirt.
Exhibit'A(iii)' : One dirty cut/torn salwar.
Parcel 'B' : One sealed cloth parcel sealed with the seal of "HSM"
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containing exhibits 'B(i)', 'B(ii)' & 'B(iii)'.
Exhibit'B(i)' : One dirty mattress. Exhibit'B(ii)' : One dirty pillow. Exhibit'B(iii)' : One dirty pillow. Parcel 'C' : One sealed cloth parcel sealed with the seal of "KG
BJRM HOSPITAL MORTUARY" containing exhibit 'C'.
Exhibit 'C' : One white cloth piece having soily material described as 'Sheet in which body of deceased found wrapped'. Parcel 'D' : One sealed envelope sealed with the seal of of "KG BJRM HOSPITAL MORTUARY" containing exhibit 'D'.
Exhibit 'D' : Light brown gauze cloth piece described as 'Blood gauze piece'.
Parcel 'E' : One sealed glass bottle sealed with the seal of of "KG BJRM HOSPITAL MORTUARY" containing exhibit 'E'.
Exhibit 'E ' : Gauze cloth piece described as 'Vaginal swab'. Parcel 'F' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39" containing exhibit 'F', kept in an injection vial.
Exhibit 'F' : Yellowish white foul smelling liquid described as 'Semen'.
57 of 71 58 FIR No. 294/2008 PS Bawana Parcel 'G' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39" containing exhibit 'G', kept in an injection vial.
Exhibit 'G' : Few strands of hair described as 'Pubic hair'. Parcel 'H' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39" containing exhibit 'H', kept in an injection vial.
Exhibit 'H' : Few nail clippings described as 'Nail scrapings'. Parcel 'I' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39" containing exhibit 'I'.
Exhibit 'I' : Gauze cloth piece having brown stains described as 'Blood sample in gauze piece'.
Parcel 'J' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39" containing exhibit 'J', kept in an injection vial.
Exhibit 'J' : Damp cotton wool swab on a wooden stick described as 'Swab from coronal sulcus'.
Parcel 'K' : One sealed cloth parcel sealed with the seal of 58 of 71 59 FIR No. 294/2008 PS Bawana "CASUALTY MB HOSPITAL POOTH KHURD DELHI39" containing exhibit 'K', kept in an injection vial.
Exhibit 'K' : Damp cotton wool swab on a wooden stick described as 'Swab form penile shaft'.
The results of the analysis reads as under: RESULTS OF ANALYSIS 1 Blood was detected on exhibits 'D' and 'I'.
2 Blood could not be detected on exhibits 'A(i),' 'A(ii),' 'A(iii),' 'A(iv),' 'B(i),' 'B(ii),' 'B(iii),' 'C,' 'E,' 'G,' 'H,' 'J,' and 'K'. 3 Human semen was detected on exhibit 'J'.
4 Semen could not be detected on exhibits 'A(i),' 'A(ii),' 'A(iii),' 'A(iv),' 'B(i),' 'B(ii),' 'B(iii),' 'C,' 'E,' 'G,' 'H,' and 'K'. 5 Report of serological analysis in original is attached herewith.
The Serological Report Ext. PW18/B reads as under: Exhibits Species of origin ABO Grouping/ Remarks Blood stains:
59 of 71 60 FIR No. 294/2008 PS Bawana 'D' Blood stained Human No reaction gauze cloth piece 'I' Gauze cloth piece Human No reaction Semen stains:
'F' Semen sample Sample was putrefied hence no opinion.
'J' Cotton wool swab No reaction From above, it is indicated that human semen was detected on exhibit 'J' and the blood was detected on exhibit 'D' and 'I' but as per serological report no opinion has been expressed on exhibits 'J', 'D' and 'I' as "No reaction".
The incident is of 23.08.2008 and the burial of dead body of Nazmeen @ Gudiya was done on 24.08.2008 and the disiniterment of dead body was on 28.08.2008 and PW5 Dr. K. Goel in his examination in chief has deposed that the body was under the stage of decomposition having blacking discolouration all over body, cuticle was peeled off all over body at places. There was gas stiffening. Hair were peeling off.
This may be the reason for nondetection of semen on exhibit E. (vaginal swab) of Nazmeen @ Gudiya (since deceased).
60 of 71 61 FIR No. 294/2008 PS Bawana ARREST AND POINTING OUT OF PLACE OF INCIDENT BY ACCUSED TASLEEM @ HATTU :
28. PW17 Insp. Puran Pant in his examinationinchief has deposed that "On 30.08.2008 I was posted as Incharge PP Shahbad Dairy, PS Bawana. On that day I alongwith SHO H.S. Meena, Ct. Dharampal and HC Kirti were in the investigation of this case. When we reached at 80 Feet road, Opp. Deep Vihar, Pansali, at the identification of beat Constable Dharampal accused Taslim who is present in the court today (correctly identified) was arrested vide arrest memo Ex. PW17/A signed by me at pointA. His personal search was also conducted vide personal search memo Ex. PW17/B signed by me at pointA. Accused was interrogated by the IO and his disclosure statement was recorded which is Ex. PW17/C signed by me at pointA. Thereafter, accused pointed out the house at Deep Vihar, Pansali after going inside the house where he had committed the crime vide pointed out memo Ex. PW17/D signed by me at pointA."
His testimony has been corroborated by PW9 HC Kirti Ballabh, PW19 Ct. Dharampal and PW20 Inspector H.S. Meena.
61 of 71 62 FIR No. 294/2008 PS Bawana From the aforesaid narration of PW17 Inspector Puran Pant it is clear that on 30.08.2008 accused Tasleem @ Hattu was arrested vide arrest memo Ext. PW17/A and his personal search was conducted vide memo Ext. PW17/B and the disclosure statement made by the accused Tasleem @ Hattu Ext. PW17/C was also recorded and the accused pointed out the house at Deep Vihar, Pansali after going inside the house where he had committed the crime and in this regard pointing out memo Ext. PW17/D was prepared.
Inspite of incisive cross examination there is nothing in the cross of said PWs so as to impeach their creditworthiness.
In view of above and in the circumstances, it stands established on record that accused Tasleem @ Hattu was arrested on 30.08.2008 vide arrest memo Ext. PW17/A, his personal search was conducted vide memo Ext. PW17/B, he made a disclosure statement Ext. PW17/C and also pointed out the place of incident where he committed the crime vide pointing out memo Ext. PW17/D. 62 of 71 63 FIR No. 294/2008 PS Bawana MOTIVE FOR CRIME :
29. In cases where ocular evidence is forthcoming, absence of motive or absence of proof of motive is an insignificant factor [Ref. Madan Lal @ Manohar @ Motta Vs. State 184 (2011) DLT 160 (DB)].
PW4 Salman @ Nevla is the ocular witness to the incident who has very categorically deposed regarding the committal of crime by accused Tasleem @ Hattu, his brother as discussed here in before and has been held to be worthy of credence.
It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes however, the motive is shrouded in a mystery and it is difficult to locate the same. (Molu Vs. State of Haryana AIR 1976 SC 2499). It is true that the motive for the assault was a trivial (plucking of mangoes) one but human nature being what it is, murders are known to have taken place for lesser motives (Jagdish Vs. State of Madhya Pradesh AIR 63 of 71 64 FIR No. 294/2008 PS Bawana 1981 SC 1169).
In the circumstances, so far as motive for crime is concerned this assumes secondary importance in view of ocular testimony of PW4 Salman @ Nevla.
30. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Tasleem @ Hattu in the commission of the offences u/s 376(2)(f)/302/506/201 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Tasleem @ Hattu beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Tasleem @ Hattu. I, therefore, hold the accused Tasleem @ Hattu guilty for the offences u/s 376(2)(f)/302/506/201 IPC and convict him thereunder. Announced in the open Court today on 25th Day of May, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
64 of 71 65 FIR No. 294/2008 PS Bawana IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI Sessions Case No. 56/09 Unique I.D No. 02404R0016552009 State Vs. Tasleem @ Hattu S/o Sh. Shamshuddin R/o Kachhi Colony, Behind Shiv Temple, Deep Vihar, Pansali, Delhi.
FIR No. : 294/2008 Police Station : Bawana Under Sections : 302/201/506/376 IPC ORDER ON SENTENCE : 1. Vide my separate detailed judgment dated 65 of 71 66 FIR No. 294/2008 PS Bawana
25.05.2012 accused Tasleem @ Hattu has been convicted for the offences punishable u/s 376(2)(f)/302/506/201 IPC.
2. Ms. Poonam Mahajan, Ld. Amicus Curiae for convict Tasleem @ Hattu submitted that he is aged about 22 years and is fifth class pass and is a poor person and was doing the welding work. She further submitted that his mother has expired about three months back and is having the aged father and three brothers. She further submitted that his father did not give him share in the property. She further submitted that he is married having the wife and four years old daughter and is the sole bread earner in the family and there is none to take care of them. She further submitted that he is not a previous convict and is running in JC since 31.08.2008. He is not involved in any other case and is the victim of circumstances and is having clean antecedents and his conduct during the course of trial was very co operative and prayed for leniency.
3. On the other hand, Ld. Addl. PP for state submitted that convict be dealt with strictly and severest punishment be given to deter him from committing the same offence in future and no leniency be shown to him. He further submitted that he has committed very serious and grave 66 of 71 67 FIR No. 294/2008 PS Bawana offences of committal of rape and murder of his own younger sister, aged about 12 years and also criminally intimidated his younger brother Salman @ Nevla the eye witness and also caused disappearance of evidence. He further submitted that sisterly relation has been killed by the convict. He even prayed for imposition of death penalty upon the convict for the offence u/s 302 IPC.
4. I have heard the Ld. APP for the state and the Ld. Counsel for the convict Tasleem @ Hattu at length on the quantum of sentence.
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that: "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
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6. It has been held in State of Karnataka Vs. Murlidhar 2009 IV AD (S.C.) 1 that: "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The 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 victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime 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".
7. Convict Tasleem @ Hattu on 23.08.2008 at about 2.00 PM in his house at Kachi Colony, Shiv Mandir at Deep Vihar Pansali, Delhi, committed rape upon his sister Nazmeen @ Gudiya aged about 12 years on the mattress (Ext. P1) lying on the floor of the room after showing her blue film and after raping her sister Nazmeen @ Gudiya convict Tasleem @ Hattu pressed the neck of her sister and thereafter, pressed her mouth with pillows (Ext. P2 & Ext. P3) with the intention of causing bodily injury 68 of 71 69 FIR No. 294/2008 PS Bawana which he knew was sufficient in the ordinary course of nature to cause death and after committing murder of her sister Nazmeen @ Gudiya convict Tasleem @ Hattu criminally intimidated his younger brother PW4 Salman @ Nevla, eye witness of the incident not to disclose the incident to anybody and threatened PW4 Salman @ Nevla also to kill and after causing murder of his sister Nazmeen @ Gudiya convict after believing that he had committed murder of his sister Nazmeen @ Gudiya caused disappearance of evidence by putting some grass into the mouth of deceased Nazmeen @ Gudiya with the intention to protect himself from legal punishment.
8. Undoubtedly brutality is involved in every incidence of murder but that brutality by itself will not bring it within the ambit of the rarest of rare cases, for the purposes of the death penalty; (Ref: Subhash Ram Kumar Bina @ Vakil v. State of Maharashtra, AIR 2003 SC 269).
However, keeping in view the aggravating circumstances visavis the mitigating circumstances, the present case in my considered opinion does not fall in the category of rarest of rare cases which could call for imposition of death penalty upon the convict.
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9. Having regard to all the facts and circumstances of the case coupled with the submissions made by the convict, I am of the considered opinion that the ends of justice can be met by sentencing convict Tasleem @ Hattu to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/ in default thereof to further undergo Rigorous Imprisonment for a period of one year u/s 302 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 3,000/ in default thereof to further undergo Rigorous Imprisonment for a period of six months u/s 376(2)(f) IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs. 1,000/ in default thereof to further undergo Rigorous Imprisonment for a period of three months u/s 506 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs. 1,000/ in default thereof to further undergo Rigorous Imprisonment for a period of three months u/s 201 IPC. All the substantive sentences shall run concurrently. The period already undergone by the convict during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convict free of costs.
70 of 71 71 FIR No. 294/2008 PS Bawana Announced in the open Court today on 26th Day of May, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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