Delhi District Court
State vs . (1) Tek Chand on 31 August, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Session case No. 786/07
Unique Case ID No. 02404R0161372007
State Vs. (1) Tek Chand
S/o Tika Ram
R/o E-424, Jahangir Puri,
Delhi.
(Convicted)
(2) Phool Singh
S/o Sh. Hari Singh
R/o J-202, Jahangir Puri,
Delhi.
(Convicted)
FIR No. 06/07
Police Station: Jahangir puri.
Under Section: 302/363/377/511/34 Indian Penal Code
Date of committal to sessions court: 9.5.2007
Arguments heard on: 11.8.2010
Judgment announced on: 16.8.2010
JUDGMENT:
As per the allegations, on 2.1.2007 both the accused Tek Chand and Phool Singh kidnapped one boy namely Hunny @ Kali S/o Kishan Kumar aged 6 years out of the lawful guardianship of his parents and commit sodomy/ carnal intercourse which is against the order of nature on the said child. It is also alleged that both the accused caused the death of child Hunny by squeezing his testicles.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 1BRIEF FACTS:
Case of the prosecution:
The case of the prosecution is that on 3.1.2007 pursuant to the receipt of DD no. 45B at police station Jahangir Puri Inspector Inderjeet Singh reached Pump House BJRM Hospital Mortuary Complex, Jahangir Puri where he found that the dead body of a boy around 5-6 years hanging on the grill of window near the boundary wall of the complex in the back side of the old pump house. The dead body was in a naked condition and blood was noticed on the mouth of the child and on the penis and there was a swelling on the testicals and the tongue of the dead body was found outside the mouth. The neck of the child was encircled with a cloth and two knots were found on the cloth which was found on the neck of the dead body and some blood was found on the ground just below the penis of the dead body. The clothes of the child were also lying near the spot. No eye witness was found at the spot, Rukka was prepared and the present FIR was got registered. In the meanwhile the father of the child namely Kishan Kumar reached the spot and identified the dead body as that of his son namely Hunny @ Kali. One tea vendor Harish also met Inspector Inderjeet Singh and informed the police that he had seen Tek Chand and Phool Singh (accused before this court) with the deceased child Kali at about 8:00 pm on 2.1.2007 (one day prior) and they were going inside the hospital complex.
On 6.1.2007 a secret information was received that the accused wanted in the present case were present near Jahangir Puri Bus Terminal and on the basis of said information both the accused Tek Chand and Phool Singh were apprehended, St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 2 interrogated and arrested wherein they made their disclosure statements admitting their involvement in the crime.
CHARGE:
Ld. Predecessor of this court had settled the charges against both the accused under Sections 262/302/377/34 Indian Penal Code to which they pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as 23 witnesses.
Public witnesses/ eye witnesses:
PW1 Pran Nath is the grandfather of the deceased boy who has deposed that his grandson namely Hunny @ Kali aged about 5 years had gone missing on 2.1.2007 and they searched for him. According to him, they went to the police station Janhangir Puri to make a complaint where they were told to come next day after making more search for him, but on 3.1.2007 they came to know that the dead body of a child was hanging by the grill on the fencing of BJRM Hospital pursuant to which they went there and found that it was his grandson. He has deposed that on 4.1.2007 he also identified the dead body of his grandson in the mortuary of BJRM Hospital and his statement to this effect was recorded which is Ex.PW1/A and after postmortem the dead body was handed over to them vide receipt Ex.PW1/B. PW2 Kishan is the father of the deceased boy who has deposed that he has four children, the fifth was deceased Hunny @ Kali who was aged about 5-6 years and was slightly retarded St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 3 (though in the later part of his examination he has denied the aspect of retardation of the child). According to him, Hunny @ Kali used to roam around a lot with the children in the gali and in the compound of BJRM Hospital which is situated near his house.
On 02.01.2007 when his son Hunny @ Kali did not return home till the evening, they started searching him in the neighbourhood after which they went to the police station on the same night and were directed to return with the photograph of the child. Thereafter they went to the Prayas Institute and gave them information about the missing of the child. He has deposed that on 03.01.2007 they came to know that dead body of a child had been discovered in the BJRM Hospital compound, which was hanging by the grill pursuant to which his father and mother reached the spot and identified the body of his son and he also reached there subsequently where police was already present. PW2 has deposed that the body was sent to Mortuary BJRM Hospital for postmortem examination of the dead body and his statement regarding the identification of the dead body was recorded which is Ex.PW2/A and the dead body was handed over to them after postmortem examination vide receipt Ex.PW1/B. The witness has also deposed that one Harish who runs a tea stall had told him that he had seen his son Hunny @ Kali in the company of PWD employees namely Phool Singh and Tek Chand after which he made inquiries from Phool Singh and Tek Chand about his child and they pushed him outside the building. He has correctly identified the accused Phool Singh and Tek Chand in the court.
In his cross-examination the witness has deposed that his deceased son was not mentally retarded and was a student of St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 4 Nursery in a government school situated nearby. According to him, his son used to return from school at 5.00 pm and play outside his house in the gali itself, till about 7:00 PM but on the day of occurrence he had not gone to school. He has testified that on 02.01.2007 he started searching for the child when he did not return home till 9:00 PM as it was the first occasion when his son had not returned home till 9:00 PM. According to this witness, Harish resides opposite his house. He has admitted that almost all residents of the gali had come to know on 02.01.2007 itself that his son was missing and they had searched for the child on 02.01.2007 in the adjoining galis, from the relations and also from other persons whom he knew. The witness has further deposed that they went to the police station at about 12:00 AM (midnight) and immediately, after reaching police station, they left for Prayas Institute in search of the child. He has deposed that when he first went to the police station, police noted down the name of his child, description and his address and advised him to bring a photograph of the child and to search for him in the Prayas Institute. He has also deposed that on 03.01.2007 he had met Harish in the morning when he was leaving for work but at that time Harish did not give him any information and it is only in the evening that Harish had told his family members that he had seen deceased in the company of accused Phool Singh and Tek Chand but did not give the above said information directly to him.
PW3 Harish has deposed that he has a Tea Shop at the main gate of BJRM hospital and opens his shop from 4:00 AM in the morning till 11:00 PM. According to him, on 02.01.2007 at about 8:00 PM he had seen the child namely Kali with the accused persons present in court who were all going inside the hospital.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 5The witness has deposed that Kali lived in the house opposite his house and accused Phool Singh worked in a BJRM hospital as Safai Karamchari and both the accused persons reside in the area of police station Jahangirpuri and used to remain in the hospital even during the night.
In his cross-examination the witness has deposed that his house is about half a kilometer away from the hospital and on 02.01.2007 he had reached home at about 10:30 PM and came to know that Kali had been missing. According to him, the grandmother of child had come to his shop at about 9:30 PM to enquire about the child and he told her to look nearby for the child as he used to play in the area of hospital or around. He has further deposed that he did not inform the grandmother of child that he had seen the child with accused persons as the child used to frequently visit that area. The witness has further deposed that on 02.01.2007 he did not speak to Kishan Kumar in the night since he had gone off to sleep shortly after reaching home and that he left for his shop at about 4:00 AM on 03.01.2007 and return home at 12:00 Noon to take rest till 5:00 PM. The witness has also deposed that on 03.01.2007 he was sleeping in the afternoon, when his mother informed him about the death of Kali at about 3:00 PM and thereafter he went to his shop, which is outside the hospital as his mother was feeling unwell and he sat at the shop. He has further deposed that he did not meet the family members of deceased on 03.01.2007 and reached the police station about 6:30 PM and remained at the police station for about 25 minutes. PW3 has testified that he told the police that he had seen deceased Kali entering the hospital with the accused persons but he is not aware the rank of the officials who recorded his statement.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 6PW4 Parmod Kumar has deposed that in the year 2007 he was employed as a private Safai Karamchari at BJRM Hospital and had been deputed at the mortuary since one and half year prior to the occurrence. He has correctly identified both the accused persons in the court since according to him, accused Tek Chand and Phool Singh were often seen in the BJRM Hospital and accused Tek Chand used to wash the private vehicles of staff members of BJRM Hospital and accused Phool Singh was employed in the PWD Office as sewer-man. According to him, both of them used to sleep in the premises of the hospital itself and on 2.1.2007 at about 11:00 am he was doing his duty at the mortuary and when he reached the staff room, he came across a polythene bag containing halwa. He has deposed that he consumed some of it and in the meantime accused Tek Chand came there and claimed that the polythene bag belonged to him and took away the remaining Halwa.
In his cross-examination the witness has deposed that he is not aware of the duty hours of the accused persons at BJRM Hospital and he is also not aware if the accused persons had any permission from any authority to sleep in the premises of BJRM Hospital. He has, however, admitted that both the accused were not employed by the government authorities in the hospital and states that he never saw the accused persons sleeping in the hospital premises.
PW5 Gulshan Kumar has deposed that in the year 2007 he possessed a contract from PWD, Delhi for maintenance of sewer of BJRM Hospital in the name of his company Gee Kay Enterprises which was registered from Delhi Central Circle No.1, Vide No. 8360 for the period w.e.f. 7.7.2005 to 22.4.2008.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 7According to him, he had employed accused Phool Singh and one Rakesh as a sewer man to attend the complaints pertaining to the sewage system of the BJRM Hospital. He has deposed that accused Phool Singh used to sleep in the labour room of PWD Office at BJRM Hospital and necessary permission in this regard had been granted by Sh. A.K. Shukla, A.E. PWD to attend the complaints at odd hours. He has correctly identified the accused Phool Singh in the court.
In his cross-examination the witness has admitted that there was no permission on the record for Phool Singh to sleep in the hospital premises but according to him, Sh. A.K. Shukla, A.E. had handed over the keys of PWD Office consisting of two floors to the accused Phool Singh with the directions to clean the office and also to sleep there unofficially. He has also admitted that he never saw accused Phool Singh sleeping in the PWD Office and has deposed that Rakesh who was the other sewer man, told him that accused Phool Singh possessed the keys to the PWD office and used to often sleep in PWD Office whenever he fought with his family members.
PW6 A.K. Shukla has deposed that he was posted in BJRM Hospital sub-division No. 1, Division-13, Jahangir Puri and he remained posted there from 2005 to May 2007. According to him, accused Phool Singh was working with him as sewer man under his supervision during the period of his posting at BJRM Hospital. He has deposed that the accused Phool Singh had been deputed at the hospital through a Contractor M/s. Gee Kay Enterprises through an agreement but he does not remember the number of the agreement. He has also deposed that the accused Phool Singh used to attend calls even at odd hours and had been St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 8 granted permission to stay in the Labour Room on the first floor in the premises of BJRM Hospital. He has proved having submitted the report Ex.PW6/A which he prepared on the basis of official record. The witness has correctly identified the accused Phool Singh in the court.
In his cross-examination the witness has deposed that he has no personal knowledge if accused Phool Singh was present in the hospital premises on the intervening night of 2nd and 3rd January 2007. He has testified that the accused Phool Singh was duty bound to be present on all seven days of the week.
Medical Witnesses:
PW11 Dr. Neeraj Chaudhary has deposed that on 6.1.2007 one Tek Chand was brought to BJRM Hospital by Constable Paras Ram for medical examination and Dr. Jagdeep examined the patient and on local examination no external fresh injury was found, secondary sexual characters were well developed; axillary hair present; testis were well developed and there were no epididymitis. According to the witness, there was nothing to suggest that patients was unfit for sexual intercourse.
He has proved the MLC of Tek Chand which is Ex.PW11/A and deposed that the undergarments and blood sample were sealed and handed over to the police official, however, the patient refused to give his semen sample. According to PW11, Dr. Jagdeep was working under his supervision and he has identified the handwriting and signatures of Dr. Jagdeep on the MLC. The witness has also proved having examined one Phool Singh and on examination no external fresh injury was found, secondary sexual characters were well developed and there were no epididymitis.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 9According to the witness, there was nothing to suggest that patients was unfit for sexual intercourse. He has proved the MLC of accused Phool Singh which is Ex.PW11/B and deposed that the undergarments and blood sample were sealed and handed over to the police official, but the patient Phool Singh refused to give his semen sample.
In his cross-examination the witness has denied that he recorded the incorrect age of patient Phool Singh. He is unable to tell if Tek Chand had stated his age to be 56 years which Dr. Jagdeep wrongly recorded as 50 years. According to him, he has not given any observation that the patient were capable of ejaculation of semen.
PW18 Dr. Upender Kishore has proved having conducted the postmortem on 4.1.2007 on the dead body of Hunny @ Kali aged about 6 years and there was alleged history of found hanging naked with a piece of cloth, one end tied with the grill of the window at old pump house in the premises of BJRM Hospital on 3.1.2007. According to the witness, on general examination no cloth over the body was found, ligature material was a T-shirt around the neck on the right side of the neck fixed type single, peepal tree leaves attached with ligature material, inner aspect of both lips - NAD. The witness has deposed that the deceased was averagely built, rigor mortis well developed, postmortem staining were present on both the legs, eyes partially opened, sub conjunctival haemorrhage present, cornea hazy, mouth partially opened, tongue protruded and caught between teeth brownish in colour, nails bluish, dried blood stains present at left angle of mouth, at the tip of penis, dried up stains of urine present on the thigh. According to the witness, the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 10 external antemortem injuries are:
1. Multiple abrasion of size .5 x .5 cm present in an area of 4 x
3 cm present over the right side middle of cheek,
2. Reddish abrasion of size 1 x.5 cm present over the right side middle of neck,
3. Reddish abrasion of size .5 x .5 cm present over the right side middle of chin,
4. Reddish abrasion of 1.5 x .5 cm present over the right side of neck. 1.5cm below the right mastoid,
5. Reddish abrasion of size 1.5x.5cm present over the front of right shoulder in the middle,
6. Reddish abrasion of size 2x.5cm present over the right side upper middle back of chest,
7. Reddish bruise of size 1x.5cm present over the inner middle aspect of left thigh,
8. Ligature mark obliquely placed 7 cm in length present over the front and left side of neck, 2 cm broad in the midline and placed 5cm below the chin, 2 cm broad on the left side of neck and 6cm below the left ear, on the right side of neck 3 cm broad and 1.5cm below the angle of mandible, the mark placed above the thyroid cartilage brownish in colour.
He has also deposed that on internal examination he found that extravasation of blood in the both frontal region with bruising under the scalp, skull bone intact, brain oedematous and congested, on fine dissection of neck the skin below the mark is parchment like, no fracture of thyroid cartilage and hyoid bone seen, no hemorrhage present in the subcutaneous tissues of neck and muscles. He has also deposed that all internal organs were congested, stomach contained about 150 gms semi digested St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 11 Gajar Ka Halwa (watery), abnormal smell-nil. He has further deposed that Sctorum oedematous on dissection, oedema present alongwith the bruising with haematoma of the both the testicles, prominent on the left testicle and the surrounding soft tissues, Anal canal- no injury present. He has also deposed that the findings are suggestive of postmortem hanging, no feature of sodomy with disproportionate organ. The witness has further deposed that cause of death in this case was shock due to antemortem injury to the testicles produced by blunt force impact/squeezing; Death is possible in ordinary course of nature and injuries sufficient to cause death and time since death was about 1½ day. The witness has further deposed that he also preserved ligature material, blood in gauze piece, anal swab, nail clippings both hands. He has proved his detailed report which is Ex.PW18/A. Police Witnesses/ Official Witnesses:
PW7 HC Mahender Singh is a formal witness being the Duty Officer who has proved that on 3.1.2007 at about 7:30 pm he had received a rukka from Ct. Rajpal sent by Inspector Inderjeet Singh, on the basis of which he had recorded the FIR No.06/07 carbon copy of which is Ex.PW7/A and computer copy of the same is Ex.PW7/B. The witness has also proved his endorsement on the rukka which is Ex.PW7/C and according to him, he also made DD no.30-A regarding commencement of lodging of FIR and 31A dated 3.1.2007 regarding conclusion of recording of FIR and handing over copies of the FIR to Ct. Raj Pal for sending to senior officers and the Ld. Magistrate. The St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 12 copy of DD No. 30A is Ex.PW7/D and copy of the DD No. 31A is Ex.PW7/E. PW8 Ct. Dalbir Singh is also a formal witness being the photographer. He has deposed that on 9.1.2007 on the asking of the Investigating officer he alongwith other member of Crime Team went at Court Pump House BJRM Hospital Mortuary Complex, Jahangir Puri where he took 10 photographs of a child who was hanging on the window grill and also of the nearby area. According to the witness, the boy was in naked condition and after preparing the photographs he handed over the same to the investigating officer. He has proved the photographs which are Ex.PW8/a to Ex.PW8/10 and the negatives are Ex.PW8/11 (collectively).
PW9 SI Baljeet Singh has deposed that on 3.1.2007 he was posted as Incharge Crime Team and on the asking of investigating officer he alongwith other members of the Crime Team went at Old Pump House, BJRM Hospital near Mortuary where he found a dead body of a child aged about 5-6 yeas in necked condition hanging from a grill on a window. He has proved having inspected the spot and prepared the Crime Team report which is Ex.PW9/A. PW10 Virender Kalonia has deposed that on 3.1.2007 he was working as a Telephone Operator and officiating as PA to MS, BJRM Hospital. According to him, on that day at about 4:30 pm someone told him that dead body of a child was hanging from the window grill of Old Pump House near the mortuary which information he passed on to his senior officers and on their directions he made a call to PCR from the phone of Medical Superintendent i.e. phone no. 27636955.St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 13
PW12 SI Manohar Lal is the draftsman who has proved that on 12.3.2007 he was called by the investigating officer Inspector Inderjeet Singh Dahiya and at the instance of investigating officer he prepared rough notes and took the measurement for preparing the scaled site plan. According to him, on the basis of same, he prepared the scaled site plan with references which site plan is Ex.PW12/A and after prepared the scaled site plan be destroyed the rough notes.
PW13 SI Mahavir Singh has deposed that on 3.1.2007 he was posted in PCR and on the day on person namely Birender had given information from telephone no. 27636955 on the basis of which he filled the PCR form copy of which is Ex.PW13/A. PW14 ASI Bijender Singh has deposed that on 3.1.2007 he was posted in police station Jahangir Puri and on that day he received DD No. 45B pursuant to which he along with Ct. Subhash went to the spot i.e. Pump House, BJRM Hospital Mortuary Complex. According to him, he noticed that one boy was hanging with the grill of the window and in the meantime, Addl. SHO Inspector Inderjeet Singh along with Ct. Rajpal also reached who also inspected the spot and many persons gathered there. He has deposed that the age of boy was 5-6 years and was hanging in naked condition and the tongue of the dead body was outside the mouth and blood was also noticed in the mouth and the penis of the dead body and the testis were swollen and the neck was rounded with the cloth. According to the witness, on the side of the dead body the clothes of the boy including one black colour jeans pant and one red woolen jacket (and one black jacket) were lying and the piece of cloth rough the neck of the boy was St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 14 also lying. He has deposed that in the meantime father of the boy namely Kishan Kumar reached the spot and identified the dead body of his son Hunny @ Kali after which the investigating officer picked up from the spot the aforesaid jacket and the pant the piece of cloth wrapped in the neck of the dead body. According to PW14 the blood stains were lifted the spot with the help of paper and were kept in a plastic dibbi sealed with the seal of ISB and the jeans pant (black colour) and Red colour woolen jacket and the remaining piece of cloth wrapped around the neck of the dead body were also seized from the spot and kept in three different pullandas and sealed with the seal of ISB and the piece of cloth which was wrapped around the neck with which the child was handing from the grill of window was also kept in a pullanda. He has proved that all the aforesaid pullandas were seized vide memo Ex.PW11/A. The witness has further proved that the investigating officer prepared the rukka and sent it to the police station for registration of FIR through Ct. Raj Pal and dead body was sent to the BJRM Hospital under his supervision alongwith Ct. Subhash and he got the body preserved at the mortuary for 72 hours and Ct. Subhash was deputed to guard the same. The witness has duly identified the case property i.e. black jeans pant which is Ex.P-1; Black jacket which is Ex.P-2; Red jacket which is Ex.P-3; Torn T-shirt which is Ex.P-4, piece of cloth which is Ex.P-5 and logo of ELANZA which is Ex.P-5.
In his cross-examination the witness has deposed that he reached the spot within three minutes of receiving the information and there were about 50 public persons present at the spot but Operator of Pump House was not available. According to him, the feet of the body were about six inches above the ground St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 15 and the body was hanging with its head towards the sky and there was dried pool of blood under the feet of body.
PW15 Ct. Raj Pal has deposed that on 3.1.2007 he alongwith Inspector Inderjit Singh went to the spot where they met ASI Vajinder Singh along with Ct. Subhash. According to them, they noticed that a dead body of child was hanging with drill of the window and was in naked condition and the tongue was protruding out. He has deposed that some clothes and blood was lying there and efforts were made to get the dead body identified. He has testified that in the meantime one Kishan Kumar came who claimed himself to be the father of the child namely Hunny @ Kali. The witness has proved that the investigating officer prepared the rukka and he went to police station along with the rukka and got the case registered and after registration of the case, he handed over the copy of FIR and original rukka to the investigating officer. The witness has also deposed that the investigating officer also recorded the statement of one Harish Kumar a tea vendor having a tea stall at the gate of hospital.
In his cross-examination the witness has deposed that Kishan Kumar who identified the dead body, reached the spot about 45 minutes after he had reached the spot. According to him, during the next 45 minutes no other police men except ASI Vajinder, Ct. Subhash, himself and Inspector Inderjit Singh reached the spot. He does not aware whether the tea vendor was called or he reached of his own. The witness has deposed that one Subhash and Satish who worked in the mortuary, disclosed to the investigating officer the names of the accused persons and they did not join the search outside the hospital. According to the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 16 accused, one of the accused lived in J Block and other in E Block and therefore, they searched their respective residences also. He has further deposed that both the accused had pucca houses built in 25 sq. yards plot and family members of the accused persons were available in their respective house but he is not aware their numbers or details.
PW16 HC Anup Singh is a formal witness who has proved that on 3/4.1.2007 on the directions of the Duty Officer he took the copy of FIR to the residence of Area MM and other senior officers of police on his official motorcycle no. DL-1SN- 4127.
PW17 Inspector Inderjeet Singh is the investigating officer of the present case and has deposed that on 03.1.07 he alongwith Ct. Rajpal reached at pump house BJRM Hospital Mortuary complex, Jahangirpuri for investigation of DD No. 45 B on government Motorcycle No. DL-1SL-5605 where he met ASI Bijender Singh along with Ct. Subhash and some public persons. According to him, he found that one naked dead body of a child around 5/6 years was hanging on the grill of window near the boundary wall of the complex in the back side of old pump house and there was blood in the mouth of the child and also on the penis and there was swelling on the testicles. The witness has further deposed that the tongue of the dead body was found outside the mouth and the neck was rounded with the cloth and two knots were found on the cloth which was founded on the neck of the dead body. PW17 has deposed that some blood was found on the ground just below the penis of the dead body and from two paces away of the dead body, the clothes of the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 17 child were lying which consist of one jeans pant of black colour and one red colour warm jacket containing cap. One half piece of the cloth which was found around the neck of the dead body was also found near the clothes of the child. According to the witness, they tried to get identify the dead body of the child and in the meantime one Kishan Kumar came there who identified the dead body belonging to his son Kali @ Hunny aged around 6 years but no eye witness was found there and hence he prepared the rukka Ex.PW17/A which rukka was handed over to Ct. Rajpal for getting the FIR registered and crime team was called at the spot. He has also testified that blood was lifted from the spot with the help of cotton and put up into a plastic dibbi and converted into pullanda and sealed with the seal of ISB; jeans pant of black colour and red colour woolen jacket with remaining pieces of the clothes, one torn piece of cloth and one piece of cloth which was found rounded on the neck of the dead body, the logo of garments and one cloth strip were put up into pullandas and sealed with the seal of ISB and seized vide memo Ex.PW14/A. He has further testified that in the meanwhile Ct. Rajpal came back at the spot and handed over to him the copy of FIR and original rukka and the crime team also reached and inspected the spot and took the photographs. According to the witness, the dead body was sent to mortuary in the custody of Ct. Subhash after which he prepared the site plan Ex.PW17/B and made inquiries. He has proved having recorded the statement of Kishan Kumar, father of the deceased Kali and of tea vendor- Harish to the effect that he had seen the accused persons with deceased Kali at about 8.00pm on 2.1.07 and they were going inside the hospital complex and thereafter he searched for accused Phool Kumar and Tek Chand St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 18 but could not found. The witness has also proved having prepared the inquest papers on 4.1.07, the request for postmortem examination is Ex.PW17/C, Brief facts are Ex.PW17/D and Form 25:35 is Ex.PW17/E. According to PW17 the dead body was identified by Kishan Kumar and Pran Nath vide their statements Ex.PW2/A and Ex.PW1/A after which the postmortem examination on the dead body of deceased Kali was got conducted after which the postmortem was handed over to the LRs of the deceased vide receipt Ex.PW1/B. He has also proved that after the postmortem examination doctor handed over to Ct. Subhash 4 sealed pullanda sealed with the seal of FMT BJRM Hospital alongwith sample seal alleged to be containing (1) ligature material (2) blood sample in gauze pieces (3) anal swab and (4) nail clippings of the deceased and Ct. Subhash handed over the same to him which were seized vide memo Ex.PW17/E. The investigating officer has also proved that on 6.1.2007, he received a secret information that accused wanted in this case are present near Jahangirpuri Bus terminal and if raided they can be apprehended and accordingly he recorded DD No 10A in this regard, copy of which is Ex.PW17/F and he alongwith SI Ramesh, HC Hansroop, Ct. Inderjeet prepared raiding party and left the Police Station along with secret informer at around 6.30 am. He has deposed that on the way he asked 3-4 public persons to join the raiding party but none agreed and went away without disclosing their names and addresses and thereafter they reached Jahangir Puri bus terminal where at the instance of secret informer, they apprehended the accused Phool Singh and Tek Chand. He has stated that the accused were interrogated and accused Phool Singh and Tek Chand were arrested vide memos St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 19 Ex.PW17/G and Ex.PW17/H; their personal search was conducted vide memos Ex.PW17/J and Ex.PW17/K and their disclosure statements Ex.PW17/L and Ex.PW17/M were recorded. Thereafter the accused pointed out the place i.e. the juice shop opposite main gate of BJRM Hospital from where they had taken away the deceased Kali on 2.1.07 at about 8.00pm, vide pointing out memo Ex.PW17/M-1 (wrongly mentioned as PW17/M) and thereafter accused pointed out the place i.e the room towards outer ring road in the BJRM Hospital compound, where they had hung the body of the child on the grill, vide pointing out memo Ex.PW17/N. The witness has also deposed that accused also pointed out the place i.e the room on the first floor of PWD office which is situated in the BJRM hospital compound where they had attempted to commit unnatural offence and killed the child, vide pointing out memo Ex.PW17/O after which both the accused were sent for medical examination in custody of Parasram and Ct. Inderjeet who handed over to him their MLCs and handed over to him pullandas sealed with the seal of MS BJRM Hospital containing undergarments, blood sample and sample seal of the respective accused which he seized vide memo Ex.PW20/A and Ex.PW20/B. The witness has further deposed that on 7.1.07, he collected the postmortem report and recorded statement of Pramod Kumar who is the employee in BJRM Hospital mortuary to the effect that accused Tek Chand has brought Gajar Halwa and had taken from him some halwa and taken away the remaining halwa alongwith him. He has proved that on 25.2.2007, the exhibits of this case alongwith FSL form were sent to CFSL Kolkata through Ct. Paras Ram and after depositing the same he had deposited the receipt with MHC(M).
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 20The witness has further deposed that on 12.3.07, SI Manohar Lal draftsman took rough notes and measurements of the spot at his instance for preparing scaled site plan and thereafter on the basis of the same he prepared scaled site plan on 13.3.07 and handed over the same to him. PW17 has also deposed that on 26.3.07, he recorded statement of one Gulshan Kumar who was the contractor of PWD and had hired the services of accused Phool Singh in BJRM Hospital where sewerage work was going on. The witness has proved having recorded the statement of Shri A.K. Shukla, AE, PWD who had handed over to him the copy of the contract with Gulshan Kumar and had also given in writing that accused Phool Singh was employed by M/s. Gee Kay Enterprises for attending day to day complaints of blockage of sewerage etc. and was allowed to stay in the labour room located in the PWD inquiry office at first floor meant for resting of the government labours to attend the odd hour complaints of the hospital, which report is Ex.PW6/A. According to him, after completion of investigations the challan was prepared and the same was filed in the court and later on FSL result Ex.PX was collected and filed in the court.
The witness has duly identified both the accused in the court as well as the case property i.e. one black jeans Ex.P1, black jacket Ex.P2, red jacket Ex.P3, torn T shirt Ex.P4, pieces of cloth Ex.P5, logo of Elanza pieces and one cloth strip which is Ex.P7.
In his cross-examination the witness has deposed that the spot where the dead body was found, would be visible only if somebody passes through the area but according to him, the place is not frequently visited. He has also deposed that the PWD store in whose grill the dead body was found, was not a functional room St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 21 and it was lying locked and was not in use. He has further deposed that there was no missing report regarding the child in police station Jahangir Puri and he has no knowledge if Kishan Kumar the father of the child had come to the police stated prior to 3.1.2007. He has denied that the statements of Harish and other documents including the memos etc. were prepared and fabricated subsequently in order to falsely implicated the accused persons. According to him, the secret information was received by him at 6 am in the morning but he did not pass on the same to the ACP and the DCP concerned but had only informed the SHO. The witness has denied the various suggestions put by the Ld. counsel for the accused persons.
PW19 Ct. Pradeep Kumar has deposed that on 3.1.2007 at about 4:48 pm the wireless operator of police station Jahangir Puri got recorded an information that dead body of a child is hanging from the window of PWD Pump House E Block Jahangir Puri which information was received from PCR. The witness has proved that accordingly he recorded the said information vide DD No. 45 B in the roznamcha and handed over the same to ASI Vijender Singh for necessary action who along with Ct. Subhash left for necessary action. The copy of the said DD is Ex.PW19/A. PW20 HC Parash Ram has deposed that on 3.1.2007 he was posted as Constable at police station Jahangir Puri and was on patrolling duty and when he reached booth of BJRM Hospital, he met SI Ramesh Kumar and accused Phool Kumar and Tek Chand who were got medically examined. According to him, after medical examination doctor handed over the sealed pullanda allegedly containing under garment and blood sample of the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 22 accused along with the sample seal. He has deposed that thereafter he and Ct. Inder Jeet handed over the same to the investigating officer which was seized by him vide memo Ex.PW20/A & Ex.PW20/B. The witness has further deposed that on 25.2.2007 on the instruction of the investigating officer he took 8 sealed pullandas and sample seal from MHCM vide RC No. 49/21/07 and deposited the same in FSL Calcutta and thereafter he deposited the receipt with the MHCM. He has proved that the sealed pullanda remained intact during his custody and he did not allow anyone to interfere with it. Leading question regarding the date of medical examination of the accused was put on which he has admitted that the accused was got medically examined by him on 6.1.2007 and not on 3.1.2007.
PW21 HC Suraj Bhan is the MHC(M) who has deposed that on 3.1.2007 Inspector Inderjeet Singh deposited two pullandas sealed with the seal of ISB in the malkhana vide entry no.2966 in register no.19 and on 4.1.2007 Inspector Inderjeet Singh again deposited 4 pullandas sealed with the seal of FMT BJRM Hospital alongwith one sample seal in the malkhana vide entry no. 2967. According to the witness, on 6.1.2007 Inspector Inderjeet Singh deposited personal search articles of accused Phool Singh and Tek Chand as well as one pullanda alleged to be containing undergarments and blood samples of Tek Chand, both sealed with the seal of MS BJRM Hospital along with one sample seal and at the same time one pullanda alleged to be containing undergarments and blood samples of Phool Singh, both sealed with the seal of MS BJRM Hospital along with one sample seal, which were deposited in malkhana vide entry no. 2981 in register no.19. He has proved the aforesaid entries which are Ex.PW21/A St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 23 to Ex.PW21/C. According to the witness, on 25.2.2007 as per the instructions of investigating officer he handed over 8 sealed pullandas alongwith sample seals and FSL form to Ct. Parasram vide RC No. 49/21/2007 which is Ex.PW21/D for depositing the same in CFSL Kolkata and after depositing the aid articles Ct. Parasram handed over to him the acknowledgment/ receipt of CFSL which is Ex.PW21/E. He has proved that there was no tampering with the said pullandas during the period said pullandas remained with him.
PW22 SI Ramesh Kumar deposed that on 6.1.2007, he was posted as Sub Inspector in Police Station Jahangirpuri and on that day investigating officer Inspector Inderjeet Singh received a secret information that accused wanted in this case were present near Jahangirpuri Bus terminal and if raided they could be apprehended. He has deposed that accordingly, Inspector Inderjeet Singh recorded DD No.10A and prepared raiding party alongwith him, HC Hansroop, Ct. Inderjeet and left the police station alongwith secret informer at around 6.30 am. According to him, on the way investigating officer asked 3-4 public persons to join the raiding party but none agreed and went away without disclosing their names and addresses after which they reached Jahangirpuri bus terminal from where at the instance of secret informer they apprehended the accused Phool Singh and Tek Chand. The witness has further deposed that investigating officer again asked 3-4 public persons to join the investigation but none agreed and went away without telling their names and addresses and thereafter the accused were interrogated and accused Phool Singh and Tek Chand were arrested vide memo Ex.PW17/G and Ex.PW17/H and their personal search was St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 24 conducted vide memo Ex.PW17/J and Ex.PW17/K and their disclosure statements Ex.PW17/L and Ex.PW17/M were recorded. According to the witness the accused pointed out the place i.e. the juice shop opposite main gate of BJRM Hospital from where they had taken away the deceased Kali on 2.1.07 at about 8.00 pm vide pointing out memo Ex.PW17/M-1 (wrongly mentioned as PW17/M). The witness has further deposed that accused pointed out the place i.e. the room towards outer ring road in the BJRM Hospital compound, where they had hung the child on the grill, vide pointing out memo Ex.PW17/N and thereafter accused also pointed out the place i.e the room on the first floor of PWD office which is situated in the BJRM hospital compound where they had attempt to commit unnatural offence and killed him, vide pointing out memo which is Ex.PW17/O. The witness has further deposed that accused Phool Singh and Tek Chand were sent for medical examination in custody of Parasram and Ct. Inderjeet and after medical examination Ct. Inderjeet and Ct. Parasram handed over to the investigating officer their MLCs and also handed over to IO pullandas sealed with the seal of MS BJRM Hospital containing undergarments, blood sample and sample seal of the respective accused which were seized by the investigating officer.
In his cross-examination the witness has deposed that he is not aware if Inspector Inderjeet Singh passed on the secret information to the senior officer. According to him, the distance between the police station and Jahangir Puri bus stand is about 100 meters. He has deposed that the investigating officer did not take any action against the persons who had refused to join the proceedings outside the police station. He has admitted that there St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 25 is a road near the grill where the dead body of the child was found and that people, traffic etc. keep moving on the road but according to him, there is a boundary wall of the compound between the spot and the road.
PW23 Ct. Subhash has deposed that on 3.1.2007 he along with ASI Vijender Singh reached Pump House, BJRM Hospital Mortuary Complex in connection with DD No. 45 B and after some time Inspector Inderjeet along with Ct. Rajpal reached at the spot. According to him, investigating officer inspected the spot and one dead body of a child aged about 5-6 years was found hanging on the grill of the window in naked condition on the back side of Pump House. He has deposed that the tongue was found outside the mouth and some blood was found on the penis and there was some swelling in the testicles and neck was rounded with a cloth. According to the witness, some blood was also found just below the penis of dead body and from paces away of the dead body the clothes of the child were lying which consisted of one jeans pant of black colour and one red warm jacket containing cap and one half piece of the cloth which was found around the neck of the dead body was also found near the cloth of the child. The witness has also deposed that in the meantime one Sri Kishan Kumar came at the spot and had identified the dead body belonging to his son Kali @ Hunny aged about 6 years after which the dead body was sent to mortuary under his supervision and ASI Vijender Singh and dead body was kept preserved there fore 72 hours and was remained in his supervision. PW23 has further deposed that on 4.1.2007 the investigating officer got conducted the postmortem examination after which the dead body was handed over to the relatives of the deceased. According to the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 26 witness, doctor handed over to him 4 sealed pullands containing blood sample, anal swab, nail clippings and clothes along with sample seal and he handed over the pullanda to the investigating officer Inspector Inderjeet which were seized vide memo Ex.PW17/E. Statement of accused/ defence witness:
Statements of both the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence has been put to them which they have denied. The accused Tek Chand has stated that he was working in the hospital mortuary since last one year before his arrest and earlier he was running a canteen in Delhi University. According to him, PW Harish is his brother in law in relation but not real one who had taken Rs.25,000/- from him when he was running his canteen in Delhi University. He has stated that his wife expired in 2006 after which he became mentally upset and stopped the canteen and joined the hospital on private basis. He has further stated that when he asked Harish to return his money, Harish refused to return the same due to which reason, he had enmity with him and has given a false statement against him. According to the accused Tek Chand, Harish was also arrested by police officials before his arrest and the police officials took him on 4.1.2007 at about 3:15 pm from the hospital and he remaining the custody for two days where he was beaten. He has further stated that the police had demanded Rs.15,000/- from him. According to the accused Tek Chand and he does not know the deceased Kali nor is he familiar with the accused Phool Singh.St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 27
The accused Phool Singh has stated that he was working as a Plumber on contract basis in PWD Office and his working hours were from 9 am to 5 pm. According to him, he does not know anything about this case and he is innocent and has been falsely implicated in the present case.
FINDINGS:
I have heard the arguments advanced before my by the Ld. Addl. Public Prosecutor for the State and also by the Legal Aid Counsel appearing on behalf of the accused. I propose to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 28
Sr. Name of the Details of Deposition No. witness PUBLIC WITNESSES
1. Pran Nath (PW1) He is the grandfather of the deceased child Hunny @ Kali and has deposed on the following aspects:
1. That his grandson Hunny @ Kali had gone missing on 2.1.2007.
2. That they searched him in the neighbourhood and then went to police station to make a complaint.
3. That on 3.1.2007 they came to know that dead body of a child was hanging by the grill on the fencing of BJRM Hospital.
4. That he went to the spot and found that the dead body was that of his grandson.
He has proved having identified the dead body of his grandson in the mortuary of BJRM Hospital vide his statement Ex.PW1/A and received the body after postmortem vide receipt Ex.PW1/B. St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 29
2. Kishan Kumar He is the father of the deceased who has (PW2) proved the following:
1. That his son Hunny @ Kali aged 5-6 years was a student of Nursery class and after his school, he used to roam and play with the children in the gali and also in the compound of BJRM Hospital which is situated near his house.
2. That on 2.1.2007 Hunny @ Kali did not return home till 9:00 pm and they started searching him in the neighbourhood.
3. That they went to the police station on the same night and were directed to return again with the photograph of the child. They were also sent to Prayas.
4. That he also went to Prayas to look for his missing child but could not find him.
5. That on 3.1.2007 they came to know that a dead body of a child had been discovered in the BJRM Hospital compound which was hanging by the grill.
6. That his father and mother reached at the spot and identified the dead body as that of his son Hunny @ Kali and he also reached here when his statement was recorded by the police which is Ex.PW2/A.
7. That one Harish who runs a tea stall outside the BJRM Hospital had told them that he had seen Hunny @ Kali in the company of PWD employees namely Phool Singh and Tek Chand on 2.1.2007 (one day prior) but did not give this information to him directly.
8. That he made inquiries from Phool Singh and Tek Chand but they pushed him outside the building.
He has correctly identified both the accused Phool Singh and Tek Chand in the court.
3. Harish (PW3) This witness is having a tea shop on the main gate of BJRM Hospital and is a witness who had last seen the deceased child alive with both the accused at 8:00 am on 2.1.2007. He has proved the following:
1. That he has a Tea Shop on the main gate of BJRM Hospital and open his shop from 4 am till 11 pm and during this period his St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 30 mother sits from 12:00 pm (noon) to 5:00 pm while he goes to take rest.
2. That on 2.1.2007 at about 8:00 pm he saw the child Kali with the accused persons Tek Chand and Phool Singh at 8:00 pm and they were all going inside the hospital (BJRM).
3. That Kali lived in the house opposite to his house and accused Phool Singh used to work in BJRM Hospital and the child frequently used to come to the hospital compound to play with children.
4. That both the accused used to remain in the hospital even during the night.
5. That on 2.1.2007 he did not speak to Kishan Kumar as he had gone to sleep and on 3.1.2007 left for his shop at 4:00 am and it was only on 3.1.2007 in the afternoon that he came to know of the death of Kali and went to Police Station at 6:30 pm to inform them that he had seen Kali with Phool Singh and Tek Chand entering the hospital.
He has correctly identified both the accused Phool Singh and Tek Chand in the court.
4. Parmod Kumar The said witness was employed as a private (PW4) Safai Karamchari at BJRM Hospital in the year 2007 and has deposed on the following aspects:
1. That in the year 2007 he was deputed on duty at the mortuary of BJRM Hospital.
2. That accused Tek Chand used to wash the private vehicles of the staff members of BJRM Hospital and accused Phool Singh was employed in the PWD Office as sewer- man.
3. That both the accused used to sleep in the premises of hospital itself.
4. That on 2.1.2007 at about 11:am he was doing his duty at the mortuary and when he reached the staff room, he came across a polythene bag containing halwa.
5. That he consumed some Halwa when in the meantime accused Tek Chand came and claimed that the polythene bag belongs to him and took away the remaining Halwa.
He has correctly identified both the accused persons in the court.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 315. Gulshan Kumar He is the contractor under whom the accused (PW5) Phool Singh was employed. He has proved the following:
1. That in the year 2007 he possessed a contract from PWD for maintenance of sewer of BJRM Hospital in the name of his company Gee Kay Enterprises.
2. That his company was registered from Delhi Central Circle no.1 Vide no. 8360 for the period w.e.f. 7.7.2005 to 22.4.2008 (which is not disputed by the accused Phool Singh).
3. That he had employed Phool Singh and one Rakesh to attend the complaints pertaining to sewage system of the BJRM Hospital.
4. That accused Phool Singh used to sleep in the labour room of PWD Office at BJRM Hospital for attending to the complaints at odd hours and necessary permission in this regard had been granted by Sh. A.K. Shukla, A.E. He has correctly identified the accused Phool Singh in the court.
6. A.K. Shukla He was the Assistant Engineer posted in (PW6) BJRM Hospital who has granted the permission to accused Phool Singh to sleep in the hospital premises. He has proved the following:
1. That he was posted in BJRM Hospital Sub Division No.1, Division-13, Jahangir Puri and remained posted there from 2005 to May 2007.
2. That accused Phool Singh was working with him as Sewer man under his supervision at BJRM Hospital.
3. That Phool Singh had been deputed at the hospital through a contractor M/s. Gee Kay Enterprises through an agreement.
4. That accused Phool Singh used to attend calls even at odd hours and had been granted permission to stay in the Labour Room on the first floor in the premises of BJRM Hospital.
He has proved having submitted the report Ex.PW6/A which according to him was prepared on the basis of official record. He has correctly identified the accused Phool Singh in the court.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 32MEDICAL WITNESSES:
7. Dr. Neeraj He has proved the MLCs of both the accused Chaudhary (PW11) Tek Chand and Phool Singh which are Ex.PW11/A and Ex.PW11/B according to which there was nothing to suggest that patients were unfit for sexual intercourse. The witness has proved that both the accused Phool Singh and Tek Chand refused to give their semen samples (on which aspect there is no rebuttal by the accused persons.
8. Dr. Upender This witness has proved having conducted the Kishore (PW18) postmortem on the dead body of deceased child Hunny @ Kali. He has proved his detailed report Ex.PW18/A according to which the cause of death was shock due to antemortem injury to the testicles produced by blunt force impact/ squeezing and death is possible in ordinary course of nature and the injuries were sufficient to cause death. According to the witness the findings are suggestive of postmortem hanging. The witness has specifically deposed that all internal organs were congested and the stomach of deceased child was containing 150 gms semi-digested Gajar Ka Halwa (watery) and the mouth was partially opened, tongue protruded and caught between teeth brownish in colour, nails bluish, dried blood stains present at left angle of mouth, at the tip of penis, dried up stains of urine present on the thigh. The witness has further proved that cause of death in this case was shock due to antemortem injury to the testicles produced by blunt force impact/ squeezing; Death is possible in ordinary course of nature and injuries sufficient to cause death and time since death was about 1½ day.
POLICE/ OFFICIAL WITNESSES
9. HC Mahender He is a formal witness being the duty officer Singh (PW7) who has proved having recorded the present FIR copy of which is Ex.PW7/A on the bais of the rukka received from Ct. Rajpal sent by Inspector Inderjeet Singh.
10. Ct. Dalbir Singh This witness has proved having taken 10 (PW8) photographs at the spot which photographs are Ex.PW8/1 to Ex.PW8/10 and the negatives are Ex.PW8/11 collectively.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 3311. SI Baljeet Singh He is the crime team incharge who has proved (PW9) having inspected the spot and prepared the crime team report which is Ex.PW9/A.
12. Virender Kalonia This witness was working as a Telephone (PW10) Operator and officiating as PA to Medical Superintendent, BJRM Hospital. He has proved that on 3.1.2007 at about 4:30 pm he received an information that dead body of a child was hanging from the window grill of Old Pump House near the Mortuary pursuant to which he informed the PCR.
13. SI Manohar Lal He is the draftsman who has proved having (PW12) prepared the scaled site plan which is Ex.PW12/A.
14. SI Mahavir Singh He is a formal witness who has proved that on (PW13) 3.1.2007 on the basis of information received from one Birender he filled the PCR Form which is Ex.PW13/A.
15. ASI Bijender Singh He has proved that on 3.1.2007 on receipt of (PW14) DD no. 45B he alongwith Ct. Subhash went to spot i.e. Pump House, BJRM Hospital Mortuary Complex, Jahangir Puri where he noticed that dead body of one boy aged 5-6 years was hanging with the grill of the window. The tongue of the dead body was outside the mouth and blood was also noticed in the mouth and the penis of the dead body.
According to him, there were swelling on the testis and the neck was rounded with the cloth and clothes of the child was lying near the spot. He has proved the various investigation proceedings conducted by investigation officer Inspector Inderjeet Singh in his presence.
16. Ct. Raj Pal (PW15) This witness has accompanied the investigating officer to the spot and has proved that he was handed over the rukka by Inspector Inderjeet Singh which he took to the police station and after getting the FIR registered he handed over the copy of FIR and original rukka to Inspector Inderjeet Singh.
17. HC Anup Singh He is a formal witness who has delivered the (PW16) copy of FIR at the residence of the Area MM and other senior officers of police.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 3418. Inspector Inderjeet He is the investigating officer of the present Singh (PW17) case who has proved the various investigation proceedings conducted by him.
19. Ct. Pradeep Kumar He is the wireless operation who has proved (PW19) having received the information from PCR on 3.1.2007 at about 4:48 pm that dead body of a child is hanging from the window of PWD pump house, E Block Jahangir Puri pursuant to which he recorded DD No. 45B in the roznamcha.
20. HC Parash Ram He is a formal witness who has proved having (PW20) got medically examined both the accused persons on 6.1.2007. He has also proved that on 25.2.2007 he had taken 8 sealed pullandas from the MHC(M) and deposited the same in the FSL Kolkata.
21. HC Suraj Bhan He is the MHC(M) who has proved the various (PW21) entries regarding deposit of various pullandas on different dates. He has also proved that on 25.2.2007 he handed over 8 pullandas along with FSL form to Ct. Parasram for depositing the same to CFSL Kolkata.
22. SI Narender Kumar This witness has proved that on 6.1.2007 on (PW22) the basis of secret information both the accused Tek Chand and Phool Singh were arrested.
23. Ct. Subhash He has accompanied ASI Vijender Singh and (PW23) has corroborated his testimony in toto.
Coming now to the microscopic examination of evidence against the accused persons. I have considered the testimonies of the various witnesses and the evidence on record. At the very outset, I may observe that this is one case where there is no direct ocular evidence and the entire evidence on record is last seen and circumstantial.
Firstly in so far as the identity of both the accused persons are concerned, both the accused Tek Chand and Phool Singh were working at Babu Jagjiwan Ram Memorial Hospital.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 35PW4 Pramod Kumar who is employed as private Safai Karamchari at BJRM Hospital has deposed that the accused Tek Chand used to wash the private vehicles of the staff members at BJRM Hospital and accused Phool Singh was employed in PWD as sewer-man. His testimony finds a corroboration from the testimony of PW5 Gulshan Kumar who states that in the year 2007 he possessed a contract from PWD for maintenance of sewer of BJRM Hospital in the name of his company namely M/s. Gee Kay enterprises which was registered from Delhi Central Circle No.1, vide no. 8360 for the period w.e.f. 7.7.2005 to 22.4.2008, which is not disputed by the accused Phool Singh. PW5 has deposed that he had employed accused Phool Singh as a sewer- man to attend the various complaints pertaining to the sewage system of BJRM Hospital, Jahangir Puri. This being so, the presence of both the accused in the premises of the hospital stand established.
Secondly the case of the prosecution is that both the accused Phool Singh and Tek Chand used to sleep in the premises of the hospital itself since Phool Singh was deputed to attend to calls/ complaints even at odd hours and for this purpose permission had been granted by the Assistant Engineer to him to use the labour room on the first floor of the office. In this regard PW4 Pramod Kumar who was employed as private Safai Karamchari at BJRM Hospital, has in his examination in chief specifically deposed that both the accused used to sleep in the premises of the hospital itself though in his cross-examination he has denied that he had stated to the investigating officer that accused persons used to sleep in the hospital premises and states that he had told the investigating officer that they were usually St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 36 present in the hospital. However, PW5 Gulshan Kumar has in his examination in chief stated that necessary permission had been taken for Phool Singh for sleeping in Labour Room which was granted by Sh. A.K. Shukla, A.E., PWD to attend the complaints at odd hours, though when the witness was cross-examined he stated that he never saw Phool Singh sleeping in the office. According to Gulshan Kumar, one Rakesh who was the other sewer-man at the hospital told him that accused Phool Singh had possessed the keys of the PWD office and used to often sleep in the office whenever he fought with his family members. Sh. A.K. Shukla, Assistant Engineer, PWD who has been examined as PW6 has corroborated the testimony of PW5 to the extent that Phool Singh the accused in the present case had been working as sewer- man under his supervision and had been deputed at the hospital through a contractor M/s. Gee Kay Enterprises. According to him, the accused Phool Singh used to attend the calls even at odd hours and had been granted permission to stay in the Labour Room on the first floor in the premises of BJRM Hospital and he had submitted a report which is Ex.PW6/A which had been prepared by him on the basis of the official record. The perusal of Ex.PW6/A shows that it was prepared by the Assistant Engineer on the basis of the official record which proves that Phool Singh had been granted permission to stay in the hospital in the labour room located in the PWD Enquiry Office at First Floor meant for resting of the government labourers in order to enable them to attend complaints at odd hours. The oral testimony of PW6 A.K. Shukla, Assistant Engineer, PWD coupled with his report Ex.PW6/A proves that the accused Phool Singh had been working as sewer-man at BJRM Hospital and was deputed to attend the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 37 complaints even during odd hours and had been permitted to stay in the labour room on the first floor of the premises of the hospital for which purpose he had the keys of the said Block. Therefore, presence of accused Phool Singh in the said building during night in routine is expected, presumed and stands established till the contrary is proved. Further, this court also cannot ignore and over look the fact that the accused Tek Chand was not a salaried employee of the BJRM Hospital and in fact was only doing small private jobs like cleaning of private vehicles and often stayed back in the hospital premises on many occasions. Pramod Kumar (PW4) who has specifically deposed that the accused Tek Chand used to clean the private vehicles of the staff members, often used to sleep in the premises of the hospital itself. Even on the date of incident i.e. 2.1.2007 he (Pramod Kumar) had met Tek Chand in the hospital when he had consumed Gajar Ka Halwa kept in the polythene in the staff room to which Tek Chand objected and took away the polythene containing remaining Halwa. PW3 Harish had also seen Tek Chand entering inside the hospital complex. Therefore, under these circumstances, no benefit can be given to the accused Tek Chand merely because there was no written record of his presence in the hospital premises.
Thirdly it is an admitted case that the deceased master Hunny @ Kali was a small child of about 5-6 years, who according to the deposition of his father Kishan Kumar (PW2) used to roam a lot with the children in the gali and in the compounds of the BJRM Hospital as his house is situated near BJRM Hospital after his school hours. He has proved that on 2.1.2007 Hunny @ Kali did not return home till late evening i.e. till 9:00 PM on which he tried to search for him and even went to St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 38 Prayas Institute but could not trace him but later on 3.1.2007 they came to know that the dead body of a child had been discovered in the BJRM Hospital compound hanging on the grill which he found to that of his child. His statement proves that the deceased Master Hunny @ Kali was a resident of E-1611, Jahangir Puri, Delhi which is situated near the BJRM Hospital and therefore, under these circumstances, the frequent presence of the child in the hospital compound is only natural.
Fourthly PW3 Harish who is the neighbour of the deceased is a witness who had last seen the deceased child Kali with the accused persons on 2.1.2007 at about 8:00 pm while he was going inside the hospital. The 'Last Scene' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
It is settled law that when there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. (Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992).
In the present case it is evident from the postmortem report dated 4.1.2007 that the postmortem was conducted at 11:00 St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 39 am and the time of death is reported to be one and a half days ago i.e. in the intervening night of 3/4 January 2007. It is evident from the scaled site plan Ex.PW12/A that the dead body of the deceased child was found hanging on the grill of the window situated on the outer-wall (adjoining the boundary wall) of the PWD store of the BJRM Hospital on 3.1.2007 in the afternoon and therefore the time gap when the accused Phool Singh and Tek Chand and the deceased child Hunny @ Kali were seen alive i.e. on 2.1.2007 at about 8:00 pm which was the peak of winter season, is so small that the possibility of the accused being the author of crime becomes probable and cannot be ruled out.
Fifthly the Ld. Counsel form Delhi Legal Services Authority appearing on behalf of the accused persons has vehemently argued that no reliance can be placed on the testimony of PW3 Harish who is the neighbour of the deceased in view of the fact that despite being aware that the child had gone missing he did not inform anybody about this fact of having seen the accused persons with the deceased child and it was only later when the dead body was found that he had disclosed the same which raises a suspicion on the authenticity and correctness of the story put forward by him.
I have considered the submissions made by the Ld. Counsel in this regard. PW3 Harish in his cross-examination has given an explanation for the aforesaid and according to him, on 2.1.2007 he had reached home at 10:30 pm and when the grandmother of the child had come to his shop at about 9:30 pm to enquire about the child he told her to look nearby as the child used to play in the area of hospital but he did not mention to her that he had seen the child with the accused persons since the child used to St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 40 frequently visit that area. According to him, he did not speak to the father of the child and on the next date i.e. 3.1.2007 he left for his shop at about 4:00 am and returned home at about 12:00 noon and took rest till 5:00 pm and during the intervening period it was his mother who managed the shop but it was only when he was sleeping at about 3:00 pm that he was informed about the death of Kali by his mother, that he told the police on the same date that he had seen the deceased Kali entering the hospital with the accused. It may be noted that the witness Harish is a Tea Vendor who has a shop at the entrance of the hospital. The deceased child Kali was a child of his neighbour and known to him. The said child used to frequent that area and it is only natural that he would have noticed the child entering the hospital with the accused persons who were also working in the hospital and would have known the child previously for which reason he did not notice anything strange. It is only natural that when the child did not return till the next day and his body was found hanging from the grill, that things must have fallen in place for this witness. Further, in his cross- examination he has specifically denied the suggestion that Kali had not entered the hospital with the accused persons or that the child had himself loitered inside the hospital. PW3 Harish has very specifically deposed that he told the police that he had seen the deceased Kali with the accused persons. This being so, there is no reason to disbelieve his testimony though the same is required to be read with due care and caution.
Sixthly the testimony of PW4 Pramod Kumar is also very material since he is the witness who had last seen the accused Tek Chand with a polythene bag containing Halwa. This witness has in his oral testimony deposed two material aspects first that St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 41 both the accused Phool Singh and Tek Chand were often seen in BJRM Hospital since accused Tek Chand used to wash the private vehicles of staff members and accused Phool Singh was employed in the PWD office as sewer-man and both the them used to sleep in the premises of the hospital itself and second that on 2.1.2007 at about 11:00 am he was doing his duty at the mortuary and he reached the staff room he came across a polythene bag containing Halwa some of which he consumed when in the meantime accused Tek Chand came and claimed the polythene bag as belonging to him and took away the remaining Halwa. The said witness has not been cross-examined on this aspect of the accused Tek Chand taking away the remaining Gajar Ka Halwa and therefore, this aspect having gone unrebutted is deemed to be admitted by the accused persons. The time gap between the witness PW4 Pramod Kumar having seen the accused Tek Chand with the Gajar Ka Halwa, followed by the accused Tek Chand being seen by PW3 Harish with the child (8:00 pm while entering the hospital) and the death of the child whose postmortem report proves the presence of the Gajar Ka Halwa in his stomach, is so small that it cannot be a mere coincidence and the possibility of accused Tek Chand being involved in the offence is probable, more so as the accused Tek Chand in his statement under Section 313 Code of Criminal Procedure is unable to explain the reason of his implication by PW3 Harish and also the presence of Gajar Ka Halwa in the stomach of the deceased child.
Seventhly the postmortem report of the deceased child Hunny @ Kali has been duly proved by Dr. Upender Kishore who has been examined as PW18 and it is evident from the said postmortem report which is Ex.PW18/A that all internal organs St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 42 were congested and the stomach contained about 150 gms semi- digested Gajar Ka Halwa (watery). This shows that the child before his death had been given Gajar Ka Halwa which he consumed. This Gajar Ka halwa according to the prosecution had been brought by the deceased Tek Chand, part of which had been consumed by PW4 which aspect he has duly proved and has gone unrebutted.
Eighthly the postmortem report of the child which is Ex.PW18/A duly proved by Dr. Upendra Kishore shows that the cause of death was shock due to ante-mortem injury to the testicles produced by blunt force impact/ squeezing. PW18 Dr. Upendrer Kishore has specifically opined that death is possible in ordinary course of nature and injuries (squeezing of testicles) were sufficient to cause death. It is evident from the postmortem report Ex.PW18/A that ligature mark present on the neck was not the cause of death and the hanging was postmortem. It is proved that that the death of the child had been caused on account of shock due to injuries to the testicles which aspect is confirmed from the fact that when the scrotum was dissected, edema was found to be present along with bruising with haematoma of both the testicles which was more prominent on the left testicle and the surrounding soft tissues. The opinion that the death is possible in ordinary course of nature is compatible with the nature of injuries present on the body of the child as evident from the postmortem report Ex.PW18/A which report has gone unrebutted and un-controverted as the doctor has not been cross-examined by the accused persons.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 43Ninethly Dr. Neeraj Chadhary (PW11) has proved the MLC of accused Phool Singh which is Ex.PW11/B and that of accused Tek Chand which is Ex.PW11/A. It is evident that both the accused persons Phool Singh and Tek Chand who were examined on 6.1.2007 i.e. after almost 4 days of the incident had refused to give their semen samples and no valid explanation is forthcoming for the same due to which reason an adverse inference is liable to be drawn against both the accused.
Tenthly it is evident from the seizure memo of the clothes of the accused persons including their undergarments, which are Ex.PW20/A and Ex.PW20/B that the said undergarments were seized on 6.1.2007 i.e. almost 4 days of the alleged incident. The said garments had been sent to FSL for examination and the report of the FSL Ex.PX do not show any positive results for semen obviously so as the accused would not have preserved the said undergarments for 4 days. They would either have either washed them or changed them. This being so, the accused having refused to give their semen samples to the doctor, an adverse inference is liable to be drawn against them.
Eleventhly it is evident that the place where the dead body of the child was found hanging on a grill of a room situated in the PWD Store which is the same block where the accused Phool Singh had been granted permission to stay over night in the labour rest room situated on the first floor of which block he had the keys. This is an isolated area and it has been observed by this court from the photographs taken by the Crime Team and duly proved by PW8 Ct. Dalbir as Ex.PW8/1 to Ex.PW8/10 that the spot in question is an isolated spot present on one side of the hospital with a boundary wall of the hospital in front of the same St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 44 and trees and shrubs around it due to which reason it is not easily visible to persons and can be seen only if somebody comes to the area. It may specifically observed that this room on the ground floor is in the same block i.e. the Mortuary Block where the labour room is situated on the first floor which was being used by the accused persons.
Twelvethly the aspect of attempt to sodomize the child also stands established not only from the postmortem report but also from the photographs placed on record which also show that the child had been brutalized and the evidence of sodomy is writ large from the fact that the scrotum had been squeezed and blood was found dripping on the ground at the place where the body was found hanging. The fact that the tongue of the child was protruding out and was caught under his teeth and there were signs of dried urine on the thighs shows the extent of brutality inflicted upon the child and proves the level of force used on the genitals of the child resulting into his death as a result of shock.
Lastly both the accused had preferred not the lead any evidence and there is no history of animosity between the family of the deceased with the accused persons. They have simply denied that they used to sleep in the labour room or that on the date of incident had taken the child inside the hospital. However, in so far as the accused Tek Chand is concerned, the testimony of PW4 Pramod Kumar was put to him during his statement under Section 313 Code of Criminal Procedure that Pramod Kumar had consumed some Halwa when in the meanwhile he came and claimed the polythene containing Halwa to be belonging to him and took away the remaining Halwa with him, on which he stated that he did not know about the same. An attempt has been made St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 45 by the accused Tek Chand to discredit the testimony of Harish who according to him had taken Rs.25,000/- from him and when asked to return the same became inimical but he has not produced any evidence in support of what he has said and it appears that the story of his having lending the money to Harish has been concocted and is an after thought.
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying these principles to the facts and circumstances of the present case it is evident that the identity of both the accused have been established beyond doubt. The St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 46 deceased was a helpless child not yet physically and mentally developed who used to frequent the hospital complex to play with other children. It has been proved that on the date of incident, the accused who used to work in BJRM Hospital complex and stay there over night to attend to complaints at odd hours in the labour room on the first floor, taking advantage of the physical and mental condition of the child took him inside the hospital complex at 8:00 pm which was seen by a tea vendor Harish who has been examined as PW3, where the child was given Gajar Ka Halwa brought by the deceased Tek Chand which he consumed as evident from the postmortem report. The medical evidence proves that the attempt was made to sodomize the child who resisted which fact is evident from the fact that the child had received injuries all over his neck, face and chest region and thereafter in order to remove all evidence of their misdeeds, the accused squeezed the testicles of the child, as a result of which force, the child died due to shock. The brutality of the accused did not stop there. In order to remove all evidences of the crime, they took the naked body of the child on the ground floor and hung the same on the grill of the window of the PWD Store house on the outer side adjoining the boundary wall an area not much frequented by persons with the help of a piece of cloth and threw the clothes of the child near his body which body was discovered on the next day. The testimony of the last scene witness who had last seen the child alive with the accused persons coupled with the testimony of PW4 Pramod Kumar who had eaten part of the Gajar Ka Halwa brought by accused Tek Chand which Halwa was also detected in the stomach of the deceased child (150 gms) and the testimony of Sh. A.K. Shukla, Assistant Engineer, PWD proving St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 47 that the accused had been permitted to use the labour room on the first floor and that they had been using the said room as such; undisputedly points towards the guilt of the accused persons and none else. This opinion of this court is strengthened from the fact that both the accused after their arrest refused to give their semen samples for which an adverse inference is drawn against them.
In view of my aforesaid discussion, I hereby hold that the prosecution has been able to prove that both the accused persons kidnapped the child Hunny @ Kali aged about 6 years out of the lawful guardianship of his parents and therefore, I hold the accused Tek Chand and Phool Singh guilty of the offence under Section 363 read with Section 34 Indian Penal Code. Further, it has been proved that both the accused persons attempted to commit sodomy/ carnal intercourse on child Hunny @ Kali and hence, I hold both the accused Tek Chand and Phool Singh guilty of the offence under Section 377 read with Section 511 Indian Penal Code. It is also proved that both the accused caused the death of child Hunny @ Kali and therefore, I hold them guilty of the offence under Section 302 read with Section 34 Indian Penal Code and convict them accordingly.
Be listed for arguments on sentence on 25.8.2010.
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.8.2010 ASJ-II (NW): ROHINI
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 48
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Session case No. 786/07 Unique Case ID No. 02404R0161372007 State Vs. (1) Tek Chand S/o Tika Ram R/o E-424, Jahangir Puri, Delhi.
(2) Phool Singh S/o Sh. Hari Singh R/o J-202, Jahangir Puri, Delhi.
FIR No. 06/07Police Station: Jahangir Puri. Under Section: 302/363/377/511/34 Indian Penal Code Date of Conviction: 16.8.2010 Arguments heard on: 25.8.2010 Date of Sentence: 31.8.2010 APPEARANCE: Present: Sh. Taufiq Ahmed, Addl. Public Prosecutor for the State.
Both the convicts in judicial custody with Sh. Umesh Gupta, Legal Aid Counsel.
ORDER ON SENTENCE:
Vide my separate judgment dated 16.8.2010 both the accused persons namely Tek Chand and Phool Singh have been held guilty of the offences under Sections 363/377/511/302/34 Indian Penal Code.St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 49
Both the accused in the present case namely Tek Chand and Phool Singh were earning their livelihoods at Babu Jagjiwan Ram Hospital, Jahangir Puri. The accused Tek Chand who was employed at Sewer-man was authorized by the Assistant Engineer, PWD to stay over night in the Rest Room of the hospital in the PWD Block in order to attend urgent complaints at odd hours. The accused Tek Chand was privately working in the hospital complex and earning his livelihood by doing the work of cleaning of vehicles of the staff members of the hospital and often stayed in the hospital with Phool Singh. The deceased Hunny @ Kali was a small child of 5-6 years who was living in the vicinity of the Hospital and often came to the hospital compound to play with other children. On 2.1.2007 one Harish who was having a tea stall at the main gate of the hospital saw both the accused Tek Chand and Phool Singh entering into the Hospital complex at 8:00 pm along with the child Hunny @ Kali, which was the last time the child was seen alive by anybody and on the next day i.e. 3.1.2007 the naked body of the child in a brutalized condition was found hanging on the grill of the window of the PWD Store which window was facing towards the boundary wall of the hospital.
The investigations revealed that an attempt had been made to sodomize the child who offered resistance as evident from the injuries received all over his body and he was brutally murdered by squeezing his testicles. Both the accused have been nailed on the basis of the testimony of Harish the tea owner who had last seen the child going with the accused persons and also by the testimony of Pramod who had consumed part of Gajar Ka Halwa brought by Tek Chand on 2.1.2007 traces of which Halwa were found in the stomach of the deceased child during the postmortem.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 50The Assistant Engineer, PWD Sh. A.K. Shukla has given a report and had also deposed in the court conclusively proving that the accused Phool Singh had been permitted to use the Labour Room situated on the first floor of the complex and the medical evidence conclusively prove the use of brutal force upon the child. This being the background of the case, both the accused Tek Chand and Phool Singh have been held guilty of the offences under Section 363 read with Section 34 Indian Penal Code, Section 377 read with Section 511 Indian Penal Code and Section 302 read with Section 34 Indian Penal Code.
I have heard arguments on the point of sentence. Sh. Umesh Gupta, Ld. Legal Aid Counsel has vehemently argued that the convict Tek Chand is aged about 59 years having a family of one son and one daughter both unmarried. It is argued that the convict is totally illiterate and has a tea shop and is in judicial custody w.e.f. 6.1.2007 till date. Further, the convict Phool Chand is stated to be 60 years old having a family comprising of wife, one married son, one married daughter and one unmarried son. He is a sewer-man by profession and is totally illiterate and is in judicial custody w.e.f. 6.1.2007 till date.
Sh. Taufiq Ahmed, Ld. Addl. Public Prosecutor has vehemently argued that the gruesome act of the convicts Tek Chand and Phool Singh who attempted to sodomize a small child aged 5-6 years and killed him to remove all traces of the offence, only reflects a depravity of exceptional nature. He has argued that the act of both the convicts reflect that they have become a menace to the society particularly small children and the brutality with which they had murdered the helpless child, calls for awarding Capital Punishment to both the convicts. The Ld. St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 51 Prosecutor has also placed his reliance on the judgments in the case of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts Phool Singh and Tek Chand. He has also submitted that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
On the other hand Ld. Legal Aid Counsel appearing on behalf of the convicts has prayed that the convicts may be awarded minimum punishment as prescribed by law under the facts and circumstances of the case as the case of the convicts does not fall within the category of "Rarest of the Rare Cases"
warranting extreme punishment of death. It is also argued that the basic principal of criminal jurisprudence is that the death sentence should be awarded in exceptional cases but the minimum sentence i.e. life imprisonment is a general rule and nothing exception is involved in this case and there is no aggravating circumstances in this case but the mitigating circumstances are involved i.e. convicts are aged persons and there was no pre-plan or motive to commit murder. He has pointed out that there is no direct evidence in the case to connect the accused persons with the offence and the entire evidence is circumstantial.
I have considered the submissions made before me and also considered the various authorities. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 52 aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt and it is also required to be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Delhi High Court in its judgment dated 31.8.2009 in criminal appeal no.528/2009 and death reference number 1/2009 has observed that the Court has to see as to whether the case falls in the category of the Rarest of Rare i.e an extreme form of being extremely rare within the larger category of rare or not. Thus, it has to be established that the case falls in the category of the rarest of the rare. Making a reference to their earlier decision as rendered in death reference number 1/2008, titled State Vs. Raj Kumar Khandelwal Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Ms. Justice Indermeet Kaur of the Delhi High Court also referred to the summary of various judicial pronouncements as made by them while considering the mitigating factors and the aggravating factors which judicial pronouncements are briefly summarized as under:-
A bird's eye view of various judicial decisions reveal that Courts have St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 53 considered the under noted circumstances, as mitigating: lack of any prior criminal record as held in the decision reported as 2006 EWHC 1555 (OQ) In Re. Butters';
the age of the offender being too young or too old as held in the decision reported as AIR 1974 SC 799 Ediga Anamma Vs. State of Andhra Pradesh; the character of the offender i.e how the offender is perceived in the society by men of social standing; the probability of the offenders' rehabilitation, reformation and re- adaptation in the society; whether the offence was committed under a belief by the assailant that he was morally justified in doing so; or that the accused acted under the duress or domination of another person as held in the decision reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab; commission of the offence at the spur of the moment without any premeditation; or the offender being provoked (for instance by prolonged stress) in a way not amounting to the defence of provocation, as held in the decisions reported as 2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821 A. Devendran Vs. State of Tamil Nadu; a belief by the offender that the murder was St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 54 an act of mercy as held in the decision reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State (Delhi Administration); a guilty plea by the offender or his voluntarily surrendering before the authorities and his being genuinely remorseful as held in the decisions reported as (2008) EWHC 92 (QB) In Re. Rock and (2006) EWHC 1555 (QB) In Re. Butters'; that the offender acted to any extent in self defence; that his intention was merely to cause serious bodily harm rather than to kill; that the victim provoked or in any way contributed to the crime, as held in the decision reported as AIR 1999 SC 1699 Kumudi Lal Vs. State of U.P. Lastly, in the decisions reported as AIR 2007 SC 2531 Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka and 2007 Cri. L.J. 1806 Shivu & Anr. Vs. High Court of Karnataka & Anr., it was held that in cases of conviction being based on circumstantial evidence a lenient view should be taken on the issue of sentence.
Aggravating factors/circumstances have been opined to be; the accused having undergone previous convictions and his St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 55 proving to be a future danger/threat or menace to the society considering aspects like criminal tendencies, vagabond lifestyle, drug abuse etc. as per the decision reported as (2008) EWHC 719 (QB) In Re.
Miller; offender being in a dominating position to the victim or in a position of trust and has abused the trust; anti social or socially abhorrent nature of the crime i.e where the offence arouses social wrath and shakes the confidence of the people in any social institution; a crime committed for a motive which evinces total depravity and meanness for instance, a financial gain; where the magnitude of the crime is large i.e there are more than one victim;
where the crime is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse extreme indignation of the community as held in the decision reported as 1983 (3) SCC 470 Machhi Singh Vs. State of Punjab; significant degree of planning or premeditation and lack of remorse as held in the decision reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of Assam; the victim being vulnerable due to age or physical infirmity as held in the decision reported as 2008 (110) Bom.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 56LR. 373 State of Maharashtra Vs. Haresh Mohandass Rajput; mental or physical suffering inflicted on the victim before the death; victim being a public service provider or performing a public duty at the time when the crime was committed, as held in the decision reported as (1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the offender attacking sovereign democratic institutions as held in the decision reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru Vs. State".
Further, hon'ble Mr. Justice Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal Vs. State (Crl. Appeal No. 528/09 decided on 31.8.2009) examined another important facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249 wherein the Hon'ble Supreme Court of India had observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of law. That ought not to be done, save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.
Hon'ble Mr. Justice Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 57 sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the Ordinary Category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a Higher Category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip said benefit being extended by directing that the accused shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the case of Shree Gopal Vs. State (Supra) was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years. It is, therefore, evident that the courts should draw a virtual balance sheet listing the mitigating and the St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 58 aggravating circumstances against each other and then form an opinion as to where does the fulcrum rest. The various aggravating circumstances are to be considered in the light of the aforesaid mitigating circumstances which also includes in itself the aspect of age of the convict and his conduct during the course of trial.
I may further add that the object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The hon'ble Supreme Court has while considering the sentencing policy in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 has observed that:
"........law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 59 sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the move for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration......"
The Hon'ble Court has further observed that:
"...........The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct.
It ordinarily allows some significant discretion the the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 60 sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread......"
"......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 crime with equal severity is not unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the 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 through then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment had some very St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 61 undesirable practice consequences.."
Further in the case of Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463 it has been held by the Hon'ble Supreme Court that:
"......Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc...."
Also in the case of Dennis Councle MCGDautha Vs. State of Callifornia reported in 402 US 183: 27 L.D. 2d 711, as relied by the Hon'ble Supreme Court in the case of Siddarama and Ors. Vs. State of Karnataka it has been observed that :
".......no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 62 assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished....."
Hence in the words of Mr. Justice A. Pasayat as held in the case of Siddarama and Ors. Vs. State of Karnataka it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be.
The aggravating circumstance in the present case is that the crime has been directed against the helpless child of 5-6 years who had been brutally killed by convicts when they failed to satisfy their carnal desire. The mitigating circumstances being the age of the accused persons (who are both aged 59 and 60 years) and the fact that they are not previous offenders.
Offences directed against the small children particularly sexual and unnatural offence are often committed in secrecy by persons known to such children as they are an easy prey. In case of any resistances, the victim who is not physically and mentally developed is often silenced forever, as has happened in the present case and therefore, the need to treat these offences on a different footing.
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 63I am reminded of the story of legendary Bharat son of Shakuntala after whom our great Country has been named, who was brought up (literary) by the most dangerous/ carnivorous animals of the Jungle with utmost love and affection. Our ancient texts depict numerous instances where a human child has been brought up by an animal most lovingly. Well, this was so in the Sat Yuga when children were safe even with animals but what about the Yuga today. It is revolting to find the so called humans preying on small children for satisfaction of their carnal lust. They are beasts in human form and are a disgrace to man kind.
It horrifies me to see how our children, particularly those who spend their childhood on streets on roads for the reasons of abject poverty are subjected to unimaginable exploitation of worst kind. Budding lives, fall prey to the lust of perverts who do not hesitate to inflict brutal force of highest order upon helpless children. The gruesome crime, committed in the present case upon a small child of 5-6 years by persons old enough to be his grandfathers is revolting and has left me stunned. These convicts have done the unthinkable what even an animal would not do and to call these persons human is an insult to the entire humanity. The photographs of the small child with protruding tongue caught between his teeth, blood present on his mouth and drops of blood dripping from his penis on the ground with dried urine on his thighs, symptomatic of the pain that the child must have suffered while being silenced forever by squeezing of his testicles with the limp body of the child hanging on the grill of the hospital with its head turned towards sky, as if questioning his maker as to what he did to deserve such an end. The signs of struggle all over the body of the deceased child speak St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 64 volumes of what he had undergone before this death. What would shock the conscious of any person is the fact that after having silenced the child; as if that was not enough, the mutilated body of the child was displayed on the grill of the hospital, they very sight of which (as reflected in the photographs) left me sleepless for many nights as it would have done to many others. The cry of my soul being to ensure that justice is done to this child Hunny @ Kali.
I, therefore, hold that this case certainly cannot be put on the same pedestal as any other murder case. Punishment in every case does send a message to the community. Keeping in mind the sentiments of the community and the message which must travel to the community at large so as to deter similar other such like offenders, punishment in the present case has to be exemplary. The brutality with which the crime has been committed reflects extreme depravity bringing this case into the category of Rare Case, if not 'Rarest of Rare' which calls for the exercising of alternative options by the court. I therefore, award the following sentences to the convict Tek Chand:
1. He is sentenced to Rigorous Imprisonment for a period of Seven years with fine for a sum of Rs.2,000/- for the offence under Section 363 read with Section 34 Indian Penal Code.
In default of payment of fine the convict shall undergo simple imprisonment for a period of 15 days.
2. He is also sentenced to Rigorous Imprisonment for a period of Five years with fine for a sum of Rs.2,000/- for the offence under Section 377 read with Section 511 Indian Penal Code. In default of payment of fine the convict shall St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 65 undergo simple imprisonment for a period of 15 days.
3. He is further sentenced to Rigorous Imprisonment for life till his natural death (Till the rest of his life/ actual life till natural death) and fine for a sum of Rs.50,000/- (Rs. Fifty Thousand only) for the offence under Section 302 read with Section 34 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.50,000/-, if recovered, shall be paid to the family of the deceased Hunny @ Kali as compensation under Section 357 Cr.P.C.
All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict Tek Chand for the period already undergone by him during the trial.
Further, I award the following sentences to the convict Phool Singh:
1. He is sentenced to Rigorous Imprisonment for a period of Seven years with fine for a sum of Rs.2,000/- for the offence under Section 363 read with Section 34 Indian Penal Code.
In default of payment of fine the convict shall undergo simple imprisonment for a period of 15 days.
2. He is also sentenced to Rigorous Imprisonment for a period of Five years with fine for a sum of Rs.2,000/- for the offence under Section 377 read with Section 511 Indian Penal Code. In default of payment of fine the convict shall undergo simple imprisonment for a period of 15 days.
3. He is further sentenced to Rigorous Imprisonment for life till his natural death (Till the rest of his life/ actual life till St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 66 natural death) and fine for a sum of Rs.50,000/- (Rs. Fifty Thousand only) for the offence under Section 302 read with Section 34 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.50,000/-, if recovered, shall be paid to the family of the deceased Hunny @ Kali as compensation under Section 357 Cr.P.C.
All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict Phool Singh for the period already undergone by him during the trial.
The convicts are already in judicial custody. They are sent to custody for serving the remaining sentence.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to both the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 31.8.2010 ASJ (NW)-II: ROHINI
St. Vs. Tek Chand & Anr., FIR No. 6/07, PS Jahangir Puri Page No. 67