Delhi District Court
State vs . Sanjay Kumar Valmiki on 31 May, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST) ROHINI COURTS: DELHI
Session Case No. 166/2011
Unique Case ID No. 02404R0286942011
State Vs. Sanjay Kumar Valmiki
S/o Jagdish Kumar Vailmiki
R/o Jhuggi Lohiya Camp,
Haiderpur, Delhi
Permanent resident of
Village Shesbaag
PS Sheshbaag, Mohalla Neechi
Nehlore, Kamla Cold Storage,
Distt. Badayun, U.P.
(Convicted)
FIR No.: 226/2011
Police Station: Maurya Enclave
Under Section: 302/363/376 (2) (f)/376/201 IPC
Date of committal to session court: 13.12.2011
Date on which orders were reserved: 26.4.2012
Judgment pronounced on: 11.5.2012
JUDGMENT:
(1) This case is a heart rendering tale of a thirsty child aged around 78 years belonging to an extremely poor family, who in the thick of summers wanders in search of water leaving her younger siblings in a park St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 1 while her mother has gone for her daily chores and does not return thereafter. At the gate of NDPL Office where a water cooler is installed and nobody objects to public persons, particularly children coming there to have cold water, the accused Sanjay Kumar Valmiki is present. Like a hungry vulture and a starving hound waiting for its kill, the accused on seeing the child pounces upon on her and takes her to the portion at the back of the NDPL office i.e. the switch gear room where none is present. It is there that he fulfills his hunger for sex and defiles the body of the hapless and helpless child by brutally raping her to satisfy his carnal desire; a small harmless child whose body is yet not developed so as to be even being capable of inviting anybody's lustful eyes. As per allegations, the accused has done the unthinkable; something which even an animal would not do i.e. to ravish the body of a small child. After fulfilling his hunger for sex he does not stop at that and uses brutal force by repeatedly hammering and clobbering the child with a 'Y' shaped steel rod (used for operating the switch gear panel) and smashing her head in order to hide his reprehensible and disgraceful act and cause disappearance of the identity. The injures on the body of the child as many as 15 in number reflect the brutality and force with which the innocent child had been battered to death. Further, as per allegations the accused then dumps the badly mutilated body of the child in the trench under the switch gear panel towards the corner of the room where nobody would have noticed the same in routine and it is there where the lifeless body of the child lay bundled for almost two days until the stink of St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 2 decomposition rang the alarm bells leading to a search for the source of the stink resulting into the discovery of the mutilated and decomposed body of the child.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 12.7.2011 one Shyam Paswan came to the Police Station Maurya Enclave and lodged a missing report in respect of his daughter 'U' (name of the victim is withheld as the case involves a child victim). He informed the police that on 11.7.2011 his wife namely Sunita who used to do domestic work in the Kothies, left his three children in the park at KU Block behind NDPL Office and went to her work and at about 4:00 PM when she returned, she did not find her eldest daughter namely 'U'. On the basis of the statement of Shyam Paswan, initially a case under Section 363 Indian Penal Code was registered. (3) On 13.7.2011 at about 6:15 PM vide DD No. 31A an information was received in the police station through PCR that a dead body of small girl aged about 8 years was lying in the electric Panel Room (also called as switch gear room) at NDPL Office, KU Block, Pitampura on which ASI Raju Yadav and SHO reached the spot where they found the dead body of a girl lying head down in one corner of the Switch Gear Room near transformer with her panty pulled down to her thighs. The body of the girl was in highly decomposed condition. Shyam Paswan was called to the spot who identified the dead body as that of his missing daughter 'U'. During St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 3 investigations a child Master Saroj and his uncle Dalip Paswan appeared before the Investigating Officer and got recorded their statements wherein Master Saroj informed the police that he often went to the tea stall outside the NDPL Office to help his uncle Dalip Paswan who is running the same and on 11.7.2011 he was at this tea stall helping his cousin namely Deepak (son of Dalip Paswan) when on the asking of Deepak he went to Mother Dairy KU Block for purchasing milk. According to Master Saroj, while he was going to purchase milk at the Mother Dairy he saw Sanjay (accused before this Court) who is the sweeper in the NDPL Office along with a small girl child aged about 810 years and thereafter when he returned back, he went to the temple situated inside the NDPL Complex to sit under the fan as it was very hot. According to Master Saroj, it was there that he heard the screams and cries coming from the NDPL Office on which he started peeping inside the wire mesh and saw the accused Sanjay Kumar Valmiki inside the room on which he asked Sanjay who was with him on which Sanjay told him that his (Sanjay's) brother was with him and rebuked him asking him to go away on which he (Saroj) went back to his uncle's tea stall.
Master Saroj told the police that on 13.7.2011 when the body of the child was discovered and taken by the police, he saw that it was of the same girl who was talking to Sanjay Kumar Valmiki at the gate when he was going to purchase milk and hence he told his uncle (Dalip Paswan) about the same. (4) On 14.7.2011 the postmortem of the deceased was got conducted and provisions of Sections 376/302 Indian Penal Code were St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 4 added after which the further investigations were handed over to Inspector Satyender Gosain. Accused Sanjay Kumar Valmiki was arrested pursuant to a secret information and during interrogation he admitted having committed the rape and murder of the victim but during his medical examination he refused to give semen sample. Pursuant to his disclosure statement the accused Sanjay Kumar got recovered the Y shaped steel rod used for operating transformers which is normally kept in the switch gear room as the weapon with which he had inflicted the fatal injuries upon the child. He also got recovered his clothes which he was wearing at the time of commission of offence. After completion of investigations, charge sheet was filed against the accused.
CHARGE:
(5) Charges were settled against the accused Sanjay Kumar Valmiki under Sections 363/376 (2) (f)/302/201 Indian Penal Code to which he pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as thirdly one witnesses. However, before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 5
List of witnesses:
Sr. PW No. Name Category of witnesses
No.
1 PW 1 SI Mahesh Kumar Draftsman
2 PW 2 Ct. Dalbir Crime Team Photographer
3 PW 3 Ct. Satish Police witness who had joined
investigations
4 PW 4 Ct. Rajbir Police witness who had joined
investigations
5 PW 5 HC Anand Swaroop Police witness who had joined
investigations
6 PW 6 W/HC Usha Duty Officer who has proved the
registration of the FIR
7 PW 7 SI Devender Crime Team Incharge who prepared
the report
8 PW 8 Ct. Sandeep Police witness who had joined
investigations
9 PW 9 Ct. Bijender Police witness who had joined
investigations
10 PW 10 W/Ct. Archana PCR official who had filled up the
PCR Form
11 PW 11 HC Hoshiyar Singh Duty Officer/ DD writer
12 PW 12 HC Radhey Krishan MHCM
13 PW 13 Mahesh Paswan Relative of the deceased who has
identified the dead body of the child
14 PW 14 Dalip Paswan Public witness/ owner of the tea stall
outside the NDPL Office
15 PW 15 Shyam Pawan Public witness/ father of the deceased
16 PW 16 Dr. J.V. Kiran Doctor from BSA Hospital who has
given the opinion regarding the
weapon of offence
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 6
17 PW 17 Dr. Florence Almeida Doctor from BSA hospital who has
examined the accused and has given
his opinion.
18 PW 18 Ms. Manisha Forensic Expert (Biological/
Upadhyaya Serological) who has proved the blood
reports.
19 PW 19 Ms. Shashi Bala Forensic Expert (DNA Fingerprinting)
who has proved the DNA
fingerprinting report.
20 PW 20 Shiv Kumar Zonal Officer of the NDPL having his
office on the first floor of the NDPL
building.
21 PW 21 Mrs. Sunita Mother of the deceased (witness of
last seen)
22 PW 22 Bhag Chand Zonal Officer (Associate) of the
NDPL having his office on the ground
floor of the NDPL building
23 PW 23 Dr. Vijay Dhankar Doctor from BSA Hospital who has
conducted the postmortem on the dead
body of the child
24 PW 24 Aarpan Supervisor of M/s. Sumeet Facilities
Pvt. Ltd.
25 PW 25 Master Saroj Child witness (witness who has last
seen the deceased child with the
accused and also heard her cries
coming from the switch gear room
where accused was present)
26 PW 26 Yog Ram Manager Operations with M/s. Sumeet
Facilities Pvt. Ltd. who has proved the
employment details of the accused
with their company
27 PW 27 Kuldeep Singh Security Guard posted at NDPL
Office in whose presence the weapon
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 7
of offence and clothes were got
recovered by the accused.
28 PW 28 Ct. Ram Chander Police witness who has remained with
the Investigating Officers during
investigations
29 PW 29 Ct. Sohanbir Police witness who has remained with
the Investigating Officers during
investigations
30 PW 30 ASI Raju Yadav Initial Investigating Officer
31 PW 31 Inspector Satyender Investigating Officer
Gosain
List of documents/ exhibits:
Sr. Document Details Proved by
No. Exhibit No.
1 Ex.PW1/1 Affidavit of SI Mahesh Kumar SI Mahesh
2 Ex.PW1/A Site plan Kumar
3 Ex.PW2/1 Affidavit of Ct. Dalbir Ct. Dalbir
4 Ex.PW2/A1 to Photographs
A19
5 Ex.PW2/B Negative
6 Ex.PW3/1 Affidavit of Ct. Satish Ct. Satish
7 Ex.PW3/A Seizure memo of exhibit
8 Ex.PW4/1 Affidavit of Ct. Rajbir Ct. Rajbir
9 Ex.PW5/1 Affidavit of HC Anand Swaroop HC Anand
10 Ex.PW5/A Seizure memo of Exhibits of Accused Swaroop
11 Ex.PW6/1 Affidavit of W/HC Usha W/HC Usha
12 Ex.PW6/A FIR
13 Ex.PW6/B Endorsement on Rukka
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 8
14 Ex.PW7/1 Affidavit of SI Devender SI Devender
15 Ex.PW7/A Crime Team Report
16 Ex.PW8/1 Affidavit of Ct. Sandeep Ct Sandeep
17 Ex.PW9/1 Affidavit of Ct. Bijender Ct. Bijender
18 Ex.PW10/1 Affidavit of W/Ct. Archana W Ct. Archana
19 Ex.PW10/A PCR Form
20 Ex.PW11/1 Affidavit of HC Hoshiyar Singh HC Hoshiyar
21 Ex.PW11/A DD No 31A Singh
22 Ex.PW12/1 Affidavit of HC Radhey Kishan HC Radhey
23 Ex.PW12/A Copy of Register No. 19 Entry No. Kishan
521/11
24 Ex.PW12/B Copy of Register No. 19 Entry No.
529/11
25 Ex.PW12/C Copy of Register No. 19 Entry No.
530/11
26 Ex.PW12/D Copy of Register No. 19 Entry No.
568/11
27 Ex.PW12/E Copy of Register No. 19 Entry No.
623/11
28 Ex.PW12/F Copy of RC 88/21/11
29 Ex.PW12/F1 Receipt of FSL
30 Ex.PW12/G Copy of RC No 89/21/11
31 Ex.PW12/H Copy of RC No. 96/21/11
32 Ex.PW12/H1 Receipt of FSL
33 Ex.PW13/A Dead body identification statement Mahesh Paswan
34 Ex.PW15/A Statement of Shyam Paswan Shyam Paswan
35 Ex.PW15/B Seizure memo of Hair
36 Ex.PW15/C Seizure memo of blood stained Wall
and Floor
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 9
37 Ex.PW15/D Dead body identification memo
38 Ex.PW15/E Dead body handing over memo
39 Ex.PW 16/A Request for opinion on the weapon of Dr. J V Kiran
offence
40 Ex.PW16/B Opinion on the weapon of offence
41 Ex.PW17/A MLC of Sanjay Kumar Valmiki Dr. Florence
(accused) Almeida
42 Ex.PW20/DX1 Copy of Identity Card Shiv Kumar
43 Ex.PW23/A Postmortem Report of the deceased Dr. Vijay
child Dhankar
44 Ex.PW24/A Attendance Register Sh. Arpan
45 Ex.PW24/B Seizure memo of attendance register
46 Ex.PW26/A Application for employment by
accused
47 Ex.PW26/B Appointment Letter relating to accused
48 Ex.PW26/C Appointment Letter relating to accused
49 Ex.PW26/D Terms & Condition of Service
50 Ex.PW26/E Bio Data of the accused
51 Ex.PW26/F Copy of Election card of Sonu who
stood guarantee for accused Sanjay
52 Ex.PW26/G List of posting/ Location of staff
indicating the posting of accused at
NDPL office
53 Ex.PW26/H Certificate u/s. 65B Evidence Act
54 Ex.PW26/I Purchase Order/Agreement between
M/s. Sumeet Facilities Pvt. Ltd. and
NDPL.
55 Ex.PW27/A Pointing out memo of the room Kuldeep Singh
56 Ex.PW27/ B Pointing out memo of the steel rod and
clothes of the accused
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 10
57 Ex.PW29A Arrest memo of accused Ct. Sohanbir
58 Ex.PW29/B Personal search memo of accused
59 Ex.PW29/C Disclosure statement of the accused
60 Ex.PW30/A Rukka ASI Raju Yadav
61 Ex.PW30/B Site plan
62 Ex.PW30/C Inquest Form
63 Ex.PW30/D Request for postmortem
64 Ex.PW30/E Brief facts
65 Ex.PW31/A ME of accused Sanjay Insp. Satyender
66 Ex.PW31/B Notice u/s. 91 Cr. PC Gosain
67 Ex.PW31/C Seizure memo of sample seal
68 Ex.PX1 DNA Finger Print Report Ms. Shashi Bala
(admitted by the
accused)
69 Ex.PX2 Serological report of FSL Ms. Manisha
70 Ex.PX3 Biological Report of FSL Upadhyay
(admitted by the
accused)
(7) Coming now to the testimonies of the various witnesses
examined by the prosecution:
Public witnesses/ eye witnesses:
(8) PW13 Sh. Mahesh Paswan has deposed that on 13.07.2011 he
received information from his brother in law Shyam Paswan in respect of missing of his daughter 'U' aged 8 years on which he reached to the house of Shyam Paswan on 14.07.2011. According to him, thereafter they went to St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 11 the police station after which they went to BSA hospital where he identified the dead body of 'U' before the police. Witness has further deposed that after the postmortem dead body was handed over to them and his statement in respect of identification of dead body was recorded which is Ex.PW13/A. He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted. (9) PW14 Dalip Paswan is running a tea stall outside the NDPL Office on the patri where he puts his rehri. He has deposed that his son Deepak Paswan aged 1213 years also helps him in the said business and his nephew Master Saroj Paswan S/o Mangal Paswan, aged about 10 years who is studying in class third in the MCD School EU Block Pitampura, also comes to the stall. According to the witness, 11.07.2011 he had to go somewhere and his son Deepak was sitting on his tea stall. He has further deposed that on 13.07.2011 a dead body of a small girl aged about 89 years was found in the NDPL Office and there was a big hungama and inquiries were made from him by the staff of the NDPL and also by the police in this regard. He has stated that on 14.07.2011 his nephew Master Saroj informed him that the girl whose dead body he had seen at the NDPL was of the same girl whom he (Saroj) had seen with Sanjay who was talking to her at the gate of the NDPL office about two days ago. According to Dalip Paswan, Master Saroj had identified the dead body of the girl which was recovered from the NDPL office as the same girl with whom Sanjay who was working in the NDPL Office as a Sweeper, was talking. He has deposed that Saroj St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 12 also informed him that while he (Saroj) was going to Mother Diary to purchase milk he had seen this girl talking to Sanjay at the gate of the NDPL and thereafter since it was very hot, therefore he (Saroj) after giving milk to Deepak went inside the NDPL complex and sat under the fan installed in the temple inside the complex. According to Dalip Paswan, Saroj also informed him that while he (Saroj) was sitting in the temple under the fan, he heard the screams (chikhane ki awaj sunai di) of some child from inside the power house on which he (Saroj) peeped inside the power house from the jali/ wire mesh when he found Sanjay there on which he asked Sanjay as to who was there with him on which Sanjay told him to run away as there was no body (usne Sanjay se poocha waha kaun hai, to Sanjay ne usko kaha koi nahi hai, bhag yaha se). The witness has further explained that since Master Saroj was a child, therefore he ran away and later when Saroj informed him about all this, he took him to the police station and produced before ASI Raju Yadav who recorded his statement and also the statement of Saroj. Witness has correctly identified the accused Sanjay Kumar Valmiki in the Court as the Sweeper at the NDPL Office.
(10) In his cross examination by Ld. Defence Counsel witness has deposed that he is running this tea stall for the last Seven to Eight years and has voluntarily added that prior to this his jija/ brother in law was running this tea stall. According to the witness, his tea stall is hardly 20 feet from the gate of the NDPL and has voluntarily added that the gate is visible from St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 13 his tea stall. Witness has further deposed that Saroj occasionally comes to his tea stall for playing and at the time when the dead body was found, Saroj was also present there. According to the witness, Saroj did not tell him anything at the time the dead body was found and has voluntarily added that Saroj went back and slept. Witness has further deposed that he had known Sanjay for only one to one and a half months prior to the incident and has voluntarily explained that prior to this he was not known to him. According to the witness, he did not make any inquiries from Deepak on 14.07.2011 and has voluntarily explained that Saroj had come of his own to him and told him whatever he had seen. He is not aware if there is a supervisor in the NDPL in the name of Arpan. He has further stated that he went to the police station in the morning at about 910 AM and his statement was recorded after about 1015 minutes of his reaching the police station when he told ASI Raju Yadav what was told to him by the child. According to Dalip Paswan, nobody else went with him to the Police Station. The witness has stated that his brother also resides with him along with his family which includes his nephew Master Saroj and has voluntarily explained that they all reside in the same house. He has stated that Shyam Paswan the father of the deceased child is not related to him and has specifically denied the suggestion that they belong to the same village and district and has voluntarily explained that Shyam Paswan is from Samastipur whereas he is from Darbhanga. Dalip Paswan has further explained that Shyam Paswan was known to him since only two months St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 14 prior to the incident. He has further deposed that he did not make any inquiries from his son Deepak who was sitting at the tea stall at that time to the extent if he had also heard some voices from the office at 34PM.
Witness has denied the suggestion that he has family relations with Shyam Paswan who is his close friend. He has further denied that Master Saroj has been planted as a witness on the asking of Shyam Paswan who is his close associate and friend.
(11) PW15 Shyam Paswan is the father of the deceased who has deposed that he is working as a baildar (Mazdoor) and had come to Delhi along with his family for work about 1516 days prior to the date of incident i.e. 11.7.2011. He has deposed that his wife used to work as a maid in the kothies KU Block, Pitampura, Delhi and at that time he was having total three children with him. He has testified that on 11.7.2011 he went for his job while his wife Sunita went in the Kothies for her work after leaving the children at KU Block Park near NDPL office and when she came there at about 4:00 PM she found that his elder daughter 'U' aged about 8 years was not present in the park. The witness has further deposed that she (his wife) tried to search 'U' and in the meanwhile he also returned from his work on which his wife told him about missing of 'U'. He has testified that they tried to search for her in the area but they could not trace the child. He has further deposed that at that time they were not having any photograph of his daughter and on 12.7.2011 they had gone to the police station where his statement Ex.PW15/A was recorded. The witness has explained that St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 15 whenever his wife used to leave for work she left her two younger children under the supervision of elder daughter 'U' in the park. He has further deposed that on 12.7.2011 he along with police officers tried to search for his daughter and thereafter on 13.7.2011 he was called by the police to the NDPL Office, KU Block, Pitampura where he reached at about 7:00 PM and found the dead body of his daughter inside the NDPL Office between the machines and the wall. According to him, blood was found scattered on the walls, floor and strands of hair lying on the floor. He has further deposed that the police lifted the strands of hair and kept them in a plastic box and sealed the same and seized vide memo Ex.PW15/B and has also proved that police also lifted the blood stained wall and floor after breaking it and converted the same into parcels and seized the same after sealing the same vide memo Ex.PW15/C. The witness has testified that the dead body of his daughter was taken to the hospital where its postmortem was conducted. According to him, on 14.7.2011 he along with Mahesh Paswan went to the hospital and identified the dead body of his daughter vide memo Ex.PW15/D and after postmortem he received the dead body of his daughter vide memo Ex.PW15/E. (12) In his crossexamination the witness has admitted that there is a tea stall outside the NDPL Office but he is not aware as to who is running the tea stall and has voluntarily added that he had come to Delhi about 15 days prior to the incident. According to him, he is not known to any Dalip Paswan. He has deposed that his daughter 'U' was not studying in any St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 16 school and states that he was about to put her in a school when the incident took place. The witness has also deposed that he did not inform the police on 11.7.2011 regarding the missing of his daughter and has voluntarily explained that he thought that she would have been somewhere around and they should first try to locate her. He has further testified that he had gone to the NDPL Office but he was not permitted to enter the building and has explained that he was told by the employees of the office that they had not seen any child there.
(13) PW20 Sh. Shiv Kumar is an employee of the NDPL (wrongly typed as MTNL at one place in the testimony whereas it should be read as NDPL) being the Zonal Officer having his office at NDPL office, KU Block, Pitampura. According to the witness, at the time of the incident on 11.07.2011 he was also posted in the said post and was on duty from 9:30 AM to 5:30 PM and his office is situated in the room at first floor. The witness has further deposed that on 11.07.2011 he was in his office from 9:30 AM to 12 noon after which he went to meet the Principal, Sarvodya School, ZP Block, Pitampura in connection with treeplantation which was to be done by their department where he stayed for about 1 1.5 hours and returned to his office only at about 11:30 PM where he worked till about 4 PM after which he went to attend the meeting in the NDPL circle office at A Block, Lok Vihar from where he got free at about 78 PM and returned home thereafter. He has also deposed that on the next day i.e. 12.07.2011 he was in the office through out the day from 9:30 AM to 5 :30 PM and during St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 17 this period did not notice anything abnormal. According to him, on 13.07.2011 he reached his office at about 9:30 AM and remained there for about 20 to 25 minutes after which he went to office of special maintenance of electric network, A Block, Lok Vihar where he stayed till about 1:30 PM and thereafter returned to Pitampura Office where he had his lunch but thereafter at about 3:00 PM he left his office for the District Office at GP Block. According to the witness, while he was at District Office GP Block, he received a call from his office that the MCD officials were stopping/ obstructing a digging work being done by their staff at GP Block and when he reached there, the MCD staff had left. It was then that in the meanwhile he (witness) received a call from his KU Block office that the dead body of a small girl had been found in the switch gear room on which he immediately came back to his office at KU Block, where he met Bhag Chand, the time keeper and the other staff of their department. According to the witness Shiv Kumar when he entered the switch gear room there was a stink/ smell coming out from the said room and noticed that the body was of a small girl aged about 810 years which was in the state of decomposition (fool rahi thi) and a foul smell was emanating. On seeing this he immediately telephoned to his senior officers and informed them about what had happened and thereafter dialed 100 number, after which the PCR reached the spot and conducted the proceedings. According to the witness the Investigating Officer had asked him about the attendance register which he (witness) had handed over to him (Investigating Officer) St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 18 later on and informed him that Sanjay was a sweeper in their sub station at NDPL KU Block who comes at 8AM in the morning and remains there till 4 PM during his duty hours. The witness has also stated that he informed the Investigating Officer that Sanjay was not the employee of the NDPL but was an outsourced employee from M/s. Sumeet Facilities Pvt. Ltd. and Aarpan was the supervisor under whose supervision Sanjay used to work. According to Shiv Kumar during the duty hours the out sourced employees were required to wear a dress comprising of dark green pants and white striped shirt. He has stated that he informed the Investigating Officer that Sanjay was on duty from 11.07.2011 to 13.07.2011 and the Investigating Officer also made inquiries from him regarding the presence of the children inside the NDPL complex on which he informed the Investigating Officer that they had a water cooler installed on the ground floor and also on the first floor where a number of children from the adjoining government schools and also the children of labours (majdoor) normally came inside the complex for drinking water and the NDPL employees never stopped them due to which reason the presence of children inside the NDPL complex was nothing abnormal and hence it is for this reason that perhaps no body noticed the presence of the deceased girl child inside the complex. (14) The witness has further deposed that on inquiry by the Investigating Officer regarding the weapon by which the deceased was allegedly killed, he (witness) informed the Investigating Officer that this 'Y; shaped steel rod was a switch gear operating handle which was normally St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 19 kept in the open rack in the breakdown room which room is normally used by the staff of the NDPL including on duty ZSO, the other staff and the labours. According to the witness, most of the time during summer season this room remained vacant on account of the fact that the labour and other staff are on field duty and they do not remain present inside the complex. He has correctly identified the accused Sanjay Kumar Valmiki who was working in their office as a Sweeper.
(15) In his cross examination by Ld. Defence Counsel the witness has deposed that he did not hand over the identity proof of his employment to the Investigating Officer and has voluntarily produced his identity card in the Court to prove his employment with NDPL copy of which card is Ex.PW20/DX1. According to the witness, apart from himself there are around approximately 50 other employees of the NDPL working in the same office and most of their work is in the field therefore no entry is made whenever an employee left the office since the employees very frequently leave the office for attending to the complaints and for other field activities. He has deposed that the room in question i.e. switch gear room is normally kept closed and rarely inspected and has explained that it is only in case of breakdown that the said room/ switch gear room is opened. (16) On a specific Court Question the witness has explained that the room is not locked but only kept closed with the help of the kundi/ latch and anybody is in a position to open the same.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 20 (17) Witness has further deposed that the said room is situated in the other corner of the building and has voluntarily added that it is adjoining a store and opposite a toilet. According to him, there is no watchman/ security guard on the main entrance gate of the NDPL office and has admitted that any public person could enter the building with no objection being raised. He has explained that they are having public dealings in the building and very frequently received complaints in person. The witness has further deposed that 11th, 12th and 13th of July, 2011 were not holidays but it is not in his knowledge if any public person had come inside the building to make inquiries regarding some missing child and has voluntarily explained that his office is situated on the first floor of the building due to which reason he is not aware of the same. Shiv Kumar has stated that he is known to Aarpan personally in official capacity since Arpan was the Supervisor but it is not within his knowledge if Arpan and Sanjay often quarreled with each other and has voluntarily explained that no such fight/ quarrel was ever brought to his notice. According to him, on 13.07.2011 police had come to the office at about 5:306PM. He has stated that first it was the PCR which had come and the local police reached the spot later. According to him, his statement was recorded on 15.07.2011 and has denied the suggestion that he was deposing falsely at the instance of the Investigating officer.
(18) This Court has specifically asked the witness Shiv Kumar to explain what he meant when he stated that he did notice anything abnormal St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 21 in the office between 11.7.2011 to 13.7.2011 and if during this period he had visited the room where the dead body was found, or the other rooms situated in the complex, on which the witness Shiv Kumar explained that when he said that there was nothing abnormal in the office between 11.7.2011 to 13.7.2011 he was only talking about his own room situated on the first floor on the other end. He has explained that even if there were some noises or voices coming from this switch gear room, it could not have reached his office, as the door to his room remains closed at the time when he is in the office because of the Air Conditioner. When this Court further questioned the witness about the status of the switch gear room and the adjoining rooms during the day time as to whether they were frequented by persons, to which Shiv Kumar explained that most of the time the switch room, Rest Room, toilets and the stores remained isolated because they are only used in case if something is required or in case if some employee wants to take rest and has further explained that most of the employees are out during the peak season for field work.
(19) PW21 Mrs. Sunita is the mother of the deceased and the witness of last seen. According to her, she had come to depose from his native village at Bihar and at the time of incident she was residing at jhuggies on rent at Haiderpur, which address she does not recollect and was working in the kothies as a domestic work and doing cleaning work (Jharu paucha). She has further deposed that she has four children of whom her eldest daughter was the victim 'U' who at the time of the incident was aged St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 22 about 89 years; younger to her is Bholu Kumari who at that time was seven years; followed by Shivani aged 4 years and then her son Ankush aged one and a half years. According to the witness, at the time of the incident on 11.07.2011 she had left her second daughter Bholu in the village and was in Delhi with her other three children. She has deposed that on the date of incident at about 3PM she left all her three children including the deceased at KU Block Park, Pitampura opposite the NDPL office, while she went for work in the kothies and when she returned at about 4PM her eldest daughter 'U' was not there. According to the witness, her younger daughter informed her that 'U' wanted to take water and had left her and the younger brother in the park stating that she was going to drink water and thereafter they had seen her going into the NDPL office. Witness has further deposed that when she did not find her daughter she went to the NDPL office and tried to search for her around the area but could not locate her, on which she informed her husband and thereafter she along with her husband went in search of her daughter in the area but the child could not be found and on 12.07.2011 her husband went to the police station and lodged the complaint. (20) The Addl. Public Prosecutor for the State with the permission of the Court, put leading questions to the witness, wherein she admitted that her statement was recorded by the police. She has also admitted that when she was about to go for her work in the kothies, her daughter 'U' told her that she was going to drink water and thereafter while leaving the two children she went away stating "mami main pani peenae ja rahi hun". St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 23 (21) In her cross examination by Ld. Defence Counsel the witness has deposed that she did not go inside the NDPL office to search for her daughter and has voluntarily explained that she had only asked one gentleman coming out from the NDPL office if he had seen her daughter inside the office on which the said person told her that he had not seen any child inside and hence she did not go inside and searched for her else where. The witness has admitted that there is a tea vendor outside the NDPL office and states she had also made inquiries from the tea vendor. She has voluntarily explained that it was the son of the chaiwala who was sitting outside the gate of NDPL who told her that he had not noticed any child going inside. The witness has stated that she did not see her daughter going inside the NDPL Office and has voluntarily explained that when she was going towards the kothies, the child simply told her "mami main pani peenae ja rahi hun" and thereafter went away.
(22) PW22 Sh. Bhag Chand is the Zonal Officer Associate (Time keeper) at Zone 508, KU Block, Pitampura with his duty hours 9:30 AM to 5:30 PM. According to him on 11.07.2011 he had reached his office at about 9:30 AM and at about 12 noon he along with his Zonal Manager Shiv Kumar went to ZP Block from where they returned to their office at 1:30 PM and had their lunch. Witness has further deposed that at about 2:30 PM he went to QU Block Pitampura at the house of Councillor, Rekha Gupta for getting a report signed from her and returned after about one hour and remained there till about 5:30 PM. According to him, on 12.07.2011 he St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 24 came to his office at 9:30 AM and remained there through out the day but did not notice anything abnormal. Witness has further deposed that on 13.07.2011 he came to his office at about 9:45 AM and while he was standing near the gate inside the complex near the service center, he noticed a foul smell and when he made inquiries the other persons also noticed this foul smell. The witness Bhag Chand has deposed that at that time Sanjay (accused) sweeper was present in the office and he (Bhag Chand) called Sanjay and asked him to search for the source of the smell and after about one and a half hour the accused Sanjay came and told him that he could not find anything. According to the witness, later some of the staff persons told him that he (Sanjay) had found some dead mice and he had thrown them away. Bhag Chand has deposed that despite the same the foul smell continued to emanate and at about 3:30 PM he noticed that the smell was increasing on which he called the supervisor Aarpan and told him to check the source of the smell. He has deposed that he also telephoned to the accused Sanjay who by that time had left the complex and directed Sanjay that he should remain in the complex as the foul smell was still coming but instead Sanjay told him that he had already left and despite his (Bhag Chand's) instructions Sanjay did not return. According to the witness, the Supervisor Aarpan who had come to the complex and was searching for the source of the foul smell, came to him at about 55:15 PM and informed him that a dead body of small girl aged about 810 years was lying in the electric panel room (also called as switch gear room) on which, he (witness) told the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 25 staff not to go to said room and thereafter immediately informed Sh. Shiv Kumar, Zonal Officer. The witness has further deposed that after some time Shiv Kumar reached the Zonal Office and made a PCR call at 100 number. According to the witness, the Investigating Officer had made inquiries from him about the attendance of Sanjay who was the sweeper in their sub station at NDPL KU Block on which he informed him (the Investigating Officer) that Sanjay used to come at 8AM in the morning and remained there till 4 PM during his duty hours. He also informed the Investigating Officer that Sanjay was not the employee of the NDPL but was out sourced from M/s. Sumeet Facilities Pvt. Ltd. and Aarpan was the supervisor under whose supervision Sanjay was working. Bhag Chand has also explained that the Supervisor Aarpan often made telephone calls in the office to inquire about the presence of Sanjay and sometimes even personally came to check him (Sanjay). According to him during the duty hours he (Sanjay) used to wear a dress comprising of dark green pants and white striped shirt and he also informed the Investigating Officer that Sanjay was on duty from 11.07.2011 to 13.07.2011. According to the witness Bhag Chand the Investigating Officer had also questioned him him with regard to the presence of children inside the NDPL complex on which he (witness) informed him (Investigating Officer) that they had a water cooler installed on the ground floor of the complex and also on the first floor and a number of children from the adjoining government school and also the children of labours (majdoor) and from the neighbourhood market came St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 26 inside the complex for drinking water and nobody stopped them and therefore the presence of children inside the NDPL complex was nothing abnormal. According to the witness Bhag Chand, he also informed the Investigating Officer that perhaps the deceased child had come to take water and no body noticed her presence inside the complex since the presence of child inside the complex for purposes of drinking water was something normal. Witness has also informed that on the evening of 13.07.2011 and on 14.07.2011 there was a "tor phor"/ rioting in the office of the NDPL because of the protest of the jhuggies walas. He has correctly identified the accused Sanjay Valmiki in the Court who was working in their office as sweeper.
(23) In his cross examination by Ld. Defence Counsel the witness has deposed that he is an employee of the NDPL and is paid by the NDPL. According to him under the rules, he is not answerable to any Councillor or elected representative and is only answerable to his department. He has further deposed that there are no written instructions by the department that he is required to leave the office and visit the house of the area Councillor as a part of his official duty. According to the witness, he had gone to the house of the area Councillor on the asking of Sh. Shiv Kumar and has voluntarily added that there were no written instructions. He has stated that he did not make any entry in the register while leaving the office. He has further deposed that there are 24 employees working at the NDPL office and his office is situated on the ground floor and has voluntarily added that St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 27 it is the first room from the entry. According to him, the switch gear room is the last room on the ground floor on the other end and is about 2530 meters away from his room and there is a toilet, store room near the switch gear room and has explained that no body normally visits that place. Witness has further deposed that the switch gear room normally remains open and is only closed with a latch/ kundi. According to him, the only way to the switch gear room is through the gallery in front of his room and has voluntarily explained that there is another way through the back side from where one can have access to the said room which is by jumping over the wall. He has further explained that he has a room cooler in his office and the door of his office normally remains open when he is present, otherwise it remain shut. The witness has denied the suggestion that even an outsider can have an access to the switch gear room. The witness Bhag Chand has explained that even if there is a loud noise coming from the switch gear room or cries or screams, it will not reach his room because the said room is situated at the other end. He has voluntarily explained that only in case if there is a blast in the switch gear room or a break down that the noise of the same would reach his room otherwise it is not possible in normal course for the voices from the switch gear room to reach his room. According to the witness, he did not inspect the switch gear room between 11.7.2011 to 13.07.2011 since it is not frequently visited or inspected and has explained that only when there is a fault that they visit the said room. According to the witness, there is no security guard or gate keeper on the main entrance St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 28 of the NDPL office.
(24) PW24 Sh. Aarpan is the Housekeeping Supervisor with M/s. Sumeet Facilities Pvt. Ltd. who has deposed that the accused Sanjay Balmiki (whom the witness has correctly identified in the Court) a resident of Haiderpur, Lohia Camp Jhuggi had been posted as a sweeper with NDPL and had joined the company on 03.05.2011. According to the witness, Sanjay had been employed on the guarantee of another employee namely Sonu who is also the house boy in the same organization. He has deposed that Sanjay was put on duty with NDPL on 07.05.2011 as Safai Karamchari and he (witness) used to supervise his work. The witness has further deposed that he personally used to go to the spot to supervise him (Sanjay) after every twothree days but was regularly making a telephone call to the duty officer at the NDPL office to inquire about his work and attendance. He has also deposed that Sanjay used to mark his attendance in their office and was given an official dress comprising of dark green pant and striped shirt. He has explained that Sanjay was on duty at NDPL office from 11.07.2011 to 13.07.2011 and he had personally supervised him in the office on 12.07.2011 when he had gone to the NDPL office for checking. The witness has testified that on 12.07.2011 when he (Arpan) had gone for checking, he noticed that Sanjay was only wearing the shirt provided by the office but not the dark green pant and when he asked Sanjay the reason for the same, he (Sanjay) told him that he had washed the pant which had not dried due to which reason he could not wear the same. The witness has St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 29 further deposed that on 13.07.2011 he had received a call from Sh. Bhag Chand Meena, employee of the NDPL at around 3:30 PM who told him that a foul smell was coming in the office and he should visit the office personally. On this he reached the site/NDPL office at about 4:305 PM where he found that Sanjay had already left from duty and was not present after which he (Arpan) personally checked the office and cabins on all the floors. According to the witness after he checked the stores, he came to switch gear room and it was there that he found a dead body of a small girl child aged about 810 years, lying between the panel and the wall from where the foul smell was emanating. On this he immediately informed Sh. Bhag Chand Meena of the same. The witness has further deposed that police had recorded his statement on 15.07.2011 and also on 25.07.2011. He has also proved having handed over the attendance register of their employees relating to the NDPL Pitampura Office to the Investigating Officer showing that Sanjay was on duty at NDPL Office, KU Block, Zone 508 Pitampura and his name is mentioned at serial No.10 of the attendance register which register bears his signatures at the end of every month. The witness has explained that at the end of the month, he submitted the attendance register in the accounts and pay department of their office and has proved the original attendance register which is Ex.PW24/A showing the name of accused Sanjay mentioned at point X. He has also proved the production cum seizure memo of the attendance register which is Ex.PW24/B bearing the signatures of their operational manager Yog Ram St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 30 at point A. (25) In his cross examination by Ld. Defence counsel the witness has deposed that he used to take the attendance of their employees on telephone and has denied the suggestion that on several occasions he had a quarrel with accused Sanjay over the attendance. He has explained that he did not personally hand over the attendance register himself and rather the same was handed over to the police by the manager Yog Ram (26) PW25 Master Saroj is the child witness aged about 1011 years who had last seen the deceased child alive standing with the accused Sanjay at the gate of NDPL office and after some time heard the cries and screams of the child coming from the switch gear room and when he peeped inside the said room he saw the accused Sanjay Kumar Valmiki who then mislead the child by telling him that it was his younger brother with him. Master Saroj has deposed that he is a student of class third at Prathmik Vidhayala EU Block, Pitampura, Delhi and his uncle/ chacha Daleep Paswan is running a tea shop outside the NDPL office where he often goes to help him. According to the child witness on 11.07.2011 he was at the tea stall of his uncle/ chacha, helping his cousin brother (i.e. son of his chacha) namely Deepak and on that day on the asking of his brother Deepak he had gone to Mother Dairy KU Block for purchasing Milk. Witness has further deposed that when he was going to purchase milk, he saw Sanjay (whom the child witness has correctly identified in the Court) who is the sweeper in the NDPL office while he was standing at the NDPL office St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 31 along with a small girl aged about 810 years. According to the child he thereafter went to the Mother Dairy for purchasing milk and after he came back and handed over the milk to his cousin brother Deepak, he went inside the NDPL complex to sit under the fan installed at the temple as it was very hot. He has deposed that while he was sitting under the fan, he heard the screams of a child (bache ke cheekne aur rone ke awaze) coming from NDPL Office, on which he (child witness) went towards the office and started peeping inside the wire mesh (jali) and he saw the accused Sanjay inside the room. According to the child he called out to Sanjay and asked him as to who was with him on which the accused Sanjay replied that it was his brother and thereafter rebukingly told him to run away (aap ke sath main kaun hai, usne kaha mere sath mera bhai hai.... Bhag ja yaha se). According to the child witness on this he immediately went back to the tea stall where his brother was sitting. The witness has further deposed that on 13.07.2011 he came to know that a dead body of a small girl was found in the NDPL office and when he saw the dead body of the child he found that it was the same girl who was standing with Sanjay when he was going to fetch milk. He has testified that he saw the police making inquiries from his uncle/ chacha and his cousin brother and therefore on 14.07.2011 he told his chacha Daleep Paswan about seeing the small girl whose body was found with Sanjay and also told him that he had heard screams and cries coming from inside the office. On this his chacha/ uncle St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 32 took him to the police station and informed the police about whatever he had told his uncle after which the police recorded his (witness's) statement. (27) In his cross examination by Ld. Defence counsel, witness has deposed that he goes to school daily and has explained that on the date of the incident he had come to his uncle's tea stall/ shop as it was summer vacations/ holidays. According to him, he had never seen this girl (deceased) in the area previously. He has denied the suggestion that the father of the deceased had come to the house of his chacha and is known to him. Child witness has explained that he had come to the Court along with his chacha/ uncle and has further explained that nobody told him what he was suppose to depose in the Court and has explained that he had deposed on the basis of what he had seen. According to the child witness the police was present at the spot when he (witness) had seen the dead body in the NDPL office but he did not tell the police officers present there that he had seen the deceased talking to the Sanjay and has voluntarily added that he was not aware that he had to tell the police ("pata nahi tha"). The witness has further explained that his uncle/ chacha was also present at the time the body was recovered but he did not tell anybody prior to 14.07.2011 that he had heard the crises of the child from inside the room and has voluntarily explained that it was nothing unusual. He has denied the suggestion that he was a planted witness of the police and has voluntarily added that whatever he said was true and correct and also that he had come to the Court of his own.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 33 (28) PW26 Sh. Yog Ram is the Manager Operations with M/s. Sumeet Facilities Pvt. Ltd. and his duty is to manage the site, supervision of the staff, administrative control, marketing etc. He has proved having handed over to the Investigating Officer the original attendance register pertaining to the employees, the original Bio data, application form for employment relating to Sanjay, letter for employment, appointment letter, conditions of appointment, certified copy of the work order between NDPL and M/s Sumeet Facilities Pvt. Ltd., computer generated copy of nominal role of the employees along with certificate U/S 65 B of the Evidence Act which were seized by the Investigating Officer vide production cum recovery memo Ex.PW24/B. He has proved the application of employment of Sanjay which is Ex.PW26/A; letter of appointment to employee Sanjay which is Ex.PW26/B; his appointment letter which is Ex.PW26/C; Terms and conditions which are Ex.PW26/D; copy of Bio Data of Sanjay Kumar which is Ex.PW26/E accompanied by his copy of election card and driving licence. According to Yog Ram, one Sonu another employee in the housekeeping had stood guarantee for Sanjay and the copy of election card of Sonu is Ex.PW26/F; computer copy of the nominal roll showing the name of Sanjay at serial No. 21 which is Ex.PW26/G running into two pages and the certificate U/S 65 B issued by Amit Kumar, Computer operator who had retrived the nominal role is Ex.PW26/H. He has further proved the purchase order/ agreement between NDPL and M/s. Sumeet St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 34 Facilities Pvt. Ltd. Which is Ex.PW26/I running into 19 pages bearing the signatures of Sanjay Saxena regional Head at point A on behalf of M/s Sumeet Facilities Pvt. Ltd. Witness has also correctly identified the accused Sanjay Balmiki in the court. According to him, his statement was recorded by the Investigating officer on 25.07.2011. (29) In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that the above documents handed over by him to the police had been created and fabricated in connivance with the NDPL officials. He has also denied the suggestion that he was deposing falsely at the instance of the NDPL Officials.
(30) PW27 Sh. Kuldeep Singh is a Security Personnel at NDPL Office out sourced from Walson Security, Aya Nagar, Mehrauli. According to Kuldeep Singh on 14.07.2011 he was on duty at NDPL office, Z508, KU Block from 9AM till 9 PM. He has explained that his duty is on the field where he is required to go with the NDPL staff who goes to the various sites. He has deposed that on 14.7.2011 at about 4:30 PM when he reached the NDPL office he saw large amount of "tor phor"/ damage had been done in the office and later he came to know that public persons had gathered and protested being agitated on the rape cum murder of a small child which had been committed in the office of the NDPL. Witness has further deposed that he was present in the office of the NDPL when ASI Raju Yadav and other police officials came there along with the accused whose name he does not recollect but can identify after which the witness correctly St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 35 identified the accused Sanjay Balmiki in the Court as the person who had accompanied them. According to Kuldeep Singh, he joined the police during the investigations and in his presence the accused Sanjay Balmiki took them to the room containing the electric panel/ gear which was situated at the end of the corridor of the ground floor and pointed out towards the said room as the same room where he had thrown the dead body of the girl, which pointing out memo of the room is Ex.PW27/A. The witness has further deposed that the accused thereafter led them to the staircase and got recovered a steel rod of a "Y" shape from under staircase with which he had killed the girl child. According to the witness, the said steel rod was about three feet but he does not recollect the exact size and the accused also informed that after the incident he had washed the rod and had hidden the same under the staircase. Witness has further deposed that thereafter this rod was converted into a parcel and sealed after which the accused took them to the staircase opposite the bathroom and from under the staircase he produced a polythene bag containing a pant of green color and a striped shirt and informed the Investigating Officer it was his official dress which he used to wear everyday and further told the investigating officer that he had washed the clothes after the incident and hidden the same under the stair case. Witness has proved that thereafter the pointing out memo and seizure memo of the steel rod and the clothes was prepared which is Ex.PW27/B. According to him, the pullandas were taken by the Investigating Officer and his statement was recorded by the Investigating St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 36 Officer at the spot itself. The witness has correctly identified the "Y" shape steel rod as got recovered by the accused which is Ex.P1 and the cloth in which it was seized which is Ex.P2. This Court has observed that the rod is approximately 23 feet and is a part of the operating machine in the shape of a "Y" shape handle.
(31) With the permission of this Court, leading questions were put by Ld. Addl. PP for the State, wherein the witness has admitted that ASI Raju Yadav and other officers along with the accused had come to the NDPL office at about 9 PM.
(32) In his cross examination by Ld. Defence Counsel, the witness has deposed that he had given his employment proof to the investigating officer. He has admitted that the switch gear room from where the recoveries were got effected was already open and it took about 3045 minutes in seizing the case property and the seal after use was kept by the Investigating Officer with himself. According to him, the documents were prepared while standing at the gate of the NDPL office and he had signed the documents after reading and going through the same. He has deposed that the accused did not disclose anything in his presence to the police and has voluntarily added that the accused only led them to various places and got recovered steel rod and clothes in his presence. Witness has further deposed that the police officials remained at the spot for about 3045 minutes and he left the NDPL office at about 9 PM. According to him, when he left the office the police officials still remained there and a few St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 37 public persons has also come on seeing the police party. Witness has deposed that the Investigating Officer did not ask any public persons to join the investigations in his presence. He has denied the suggestion that he did not join the investigations of the present case or that nothing was recovered in his presence. Witness has further denied the suggestion that accused Sanjay did not point out any place in his presence or that he was deposing falsely at the instance of the NDPL officials and the Investigating officer. Medical evidence/ witnesses:
(33) PW16 Dr. J.V. Kiran has deposed that on 6.8.2011 he received an application from Inspector Satyender Gosain seeking opinion on the weapon of offence which application is Ex.PW16/A and in this regard he also received a sealed packet sealed with the seals of SG containing Y shaped hollow steel rod. According to the witness, the long limb of the rod was hollow and measured 55.5 cms long with circumference of 8.5 cms; smaller limbs of the rod were solid, 7 cms long each and 7.5 cms circumference in the middle; design of arrows were present on the smaller limbs on both sides; the free ends of the small limbs showed a groove and the diameter of their free ends was 1.9 x 1.5 cms; the end of the longer limb which was away from the small limbs was 2.5 x 2.5 cm diameter and the end of the longer limb on the side where the smaller limbs were present was 2.7 x 2.7 cm diameter. He has proved that the injuries no.
1, 2 and 3 mentioned in the postmortem report are possible by the said St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 38 weapon of offence which opinion is Ex.PW16/B. The witness has further deposed that the weapon was resealed with the seal of Dr. BSA, DEPTT. OF FM, DELHI GOVT. and handed over to the Investigating Officer along with the report. The witness has identified the said Y shaped steel rod in the Court which is Ex.P1. According to him, it was produced in the cloth parcel duly sealed and after cutting the same cloth opinion was given and thereafter the weapon of offence was again sealed in the said cloth which torn cloth is Ex.P2.
(34) In his crossexamination the witness has denied the suggestion that he did not receive any sealed parcel or that he gave his opinion at the instance of the Investigating Officer.
(35) PW17 Dr. Florence Almeida has deposed that on 14.07.2011 he was posted as CMO at BSA Hospital, Rohini and on that day patient Sanjay Kumar S/o Sh. Jagdish Balmiki aged 21 years, male was brought for medical examination at about 11:45 PM. According to him, on local examination no evidence of any fresh obvious external injury seen, Adams apple well developed, mustache present, good muscular built, scrotum well developed with normal sized bilateral testis and penis well developed. He has proved that in his opinion there are no findings to suggest that the examinee/ accused cannot perform sexual intercourse. The witness has also deposed that he collected following samples:
i. Blood samples in plain vial
ii. Blood sample air dried on sterile gauze
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 39
iii. Scalp hair plucked
iv. Nail scrapping of both hands
v. Plucked pubic hair
vi. Smegma on slide from coronal scrapping
vii. Brown coloured underwear
(36) Witness has further deposed that the patient Sanjay refused to
give semen sample due to which reason he had given his advise to the Investigating Officer to follow up in the department of Forensic Medicine and the samples were sealed and handed over to HC Anand Swaroop. He has proved having prepared his detailed report which is Ex.PW17/A. He has correctly identified the accused Sanjay in the Court. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted. (37) PW23 Dr. Vijay Dhankar Specialist and HOD Forensic Medicine, Dr. BSA hospital has deposed that on 14.7.2011 he was on duty when he conducted the postmortem on the body of one child 'U' D/o Shyam Paswan, aged about 8 years on the request of ASI Raju Yadav of Police Station Maurya Enclave. According to him, the deceased was allegedly found dead at NDPL Office Pitam Pura and the child was wearing a green frock and black underwear. Witness has further deposed that Nail beds and lips were cyanosed and decomposition changes were present. According to the witness, on external examination the following injuries were found on the body:
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 40
i. An area of skin of size 2 x 2 cm was missing on the left side of forehead with underlying depressed fracture of skull.
ii. An area of skin of size 2.5 x 2 cm was missing on the middle of forehead with underlying depressed fracture of skull with pieces of bones missing.
iii. An area of skin of size 3 x 2 cm was missing on the right side of forehead with underlying depressed fracture of skull with pieces of bones missing.
iv. Laceration 1.5 x 1 cm present at outer end of right eyebrow.
v. Laceration 2 x 1 cm x bone deep, present 1cm below injury no. 4 mentioned above.
vi. Laceration 3 x 1 cm muscle deep present on right side of face 3cm in front of right ear lobe.
vii. Laceration 2 x 1 cm present on inner front of lower part of right side of neck placed 3 cm from midline. viii. Laceration 2 x 1 cm present on inner front of lower part of left side of neck placed 2 cm from midline. ix. Laceration 4 x 3 cm present on inner front of right side of chest placed 4 cm above and inner to right nipple. x. Laceration 3 x 2 cm present on midline of upper third of front of chest.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 41 xi. Laceration 4 x 3 cm present on inner front of middle third of left side of chest.
xii. Laceration 3 x 2 cm present on middle of front of chest. xiii. Contusion 4 x 3 cm present on outer back of middle of left arm.
xiv. Contusion 3 x 2 cm present on upper third of back of left forearm on the outer aspect.
xv. Abrasion 2 x 1 cm present on back of left hand at the base of thumb.
(38) The witness has further proved that on internal examination of the Head - on reflection of the scalp multiple foci of extravasation of blood was present in the area underlying the injuries on the frontal region; three depressed fractures were present; one measuring 3 x 2 cm and the other 2 x 2 cm each; Fissure fracture was present of the left temporal bone; Brain was partially liquified and showed reddish green discoloration. On examination of Pelvis hymen was torn at multiple places and only marginal mucosal tags were present. Internal organs were soft, flabby and discoloration was present. According to the witness, after postmortem examination he gave his opinion that Death was due to craniocerebral damage consequent to blunt force trauma to the head caused via injury no. 1, 2 and 3 mentioned above. The injury no. 1, 2 and 3, individually as well as combined St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 42 together along with injury no. 4 to 14, are sufficient to cause death in the ordinary course of nature. All injuries were antemortem in nature.
(39) Witness has further deposed that after postmortem the following exhibits which were taken from the body of the deceased by him which were sealed with the seal of the department and handed over to the Investigating Officer:
i. Nails
ii. Clothes
iii. Blood on gauze
iv. Teeth
v. Two vaginal swabs
vi. One anal swab
vii. One oral swab
viii. Maggots
(40) He has proved his detailed postmortem report which is
Ex.PW23/A running into six pages. On a specific Court Question the
witness has deposed that the time of death was approximately around three days and has voluntarily added that the body was in a state of decomposition. Further, on a Court Question the witness has explained that the internal injury no.2 (Pelvis) showing hymen was torn at multiple places and only marginal mucosal tags were present, proves the sexual assault on St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 43 the child prior to her death. The said witness has not been crossexamined by the Ld. Defence Counsel and his entire testimony has gone uncontroverted.
Forensic evidence/ witnesses:
(41) PW18 Ms. Manisha Upadhyaya Senior Scientific Officer (Biology), FSL, Delhi has deposed that on 19.08.2011 she received four sealed parcels, first parcel bearing the seal of SD, the two parcels bearing Dr. BSA, DEPT OF FM DELHI GOVERNMENT and fourth parcel bearing seal of RY. According to her after examining the same she gave her report Ex.PX2 according to which blood was detected on exhibits 1(a) (Gauze cloth piece containing the blood sample of the accused), 1(b) (blood sample), 1d (scrapping material), 2 (nail clippings along with skin/ fleshy material), 3a (baby frock), 3b (baby underwear) and 4 (hair) and human semen was detected on exhibit 1g (underwear of the accused). She has also proved having given the biological report which is Ex.PX3. The said witness has not been crossexamined by the Ld. Defence Counsel. (42) PW19 Ms. Shashi Bala Senior Scientific Officer (Biology), FSL, Delhi has deposed that on 24.08.2011 she received seven sealed forensic samples from SHO Maurya Enclave and one sealed parcel from Biological Division. According to her, five parcels were bearing the seal of Dr. BSA, DEPT OF FM DELHI GOVT, one parcel was bearing seal of SG, one parcel was bearing the seal of RY and the parcel received from the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 44 biological division was bearing the seal of MU FSL Delhi. [This parcel containing the blood sample of the accused had first gone to Biology Division, FSL Delhi where it was opened by Ms. Manisha Upadhayay Senior Scientific Officer (Biology) who after examining the same, resealed the same with the seal of MU FSL Delhi and sent the parcel to DNA Division for examination]. She has proved her report which is Ex.PX1. (43) According to the witness first she conducted the biological examination of the samples and the blood was detected on exhibits number No. 1, 4,6 and 1(a) and human semen was detected on 5 thereafter exhibit No.1, 4, 5(b), 6 and 1(a) were subjected to DNA isolation. According to the witness DNA was isolated from the sources of Ex.5(b) and Ex.1(a) but could not be isolated from the exhibit 1,4 and 6. She has further deposed that the STR analysis were used for each of the sample and data was thereafter analysed by her by using genoscan and genotype software. She has proved the result of analysis according to which the alleles from the source of Ex.5(b) i.e. the cotton wool swab of the victim are accounted in the alleles from the source of Ex.1(a) i.e. gauze cloth piece of the accused.
She has also proved that after conducting the DNA profiling/STR analysis of the Ex.5(b) and 1(a) with the source of Ex.1(a) i.e. gauze cloth piece of the accused she concluded that the accused is responsible for the biological stains i.e. seminal stains on the Ex.5(b) (cotton wool swab of the victim). She has not been crossexamined by the Ld. Defence Counsel St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 45 and his testimony has gone uncontroverted.
Police/ official witnesses:
(44) PW1 SI Mahesh Kumar is a formal witness being the Draftsman who in his examination in chief by way of affidavit which is Ex.PW1/1 has proved that on 3.9.2011 on being called by Inspector Satyender Gosain he went to the scene of crime at NDPL Office where he inspected the spot and prepared the rough notes on the basis of which he prepared the scaled site plan which is Ex.PW1/A and he handed over to Inspector Satyender Gosain. In his cross examination by Ld. Defence Counsel the witness has deposed that he had reached the spot at about 4 PM and remained there for about one hour.
(45) PW2 Ct. Dalbir is also a formal witness being the photographer who in his examination in chief by way of affidavit which is Ex.PW2/1 has proved that on 13.7.2011 on receiving the message from Control Room he along with Incharge Crime Team reached NDPL Office KU Block Pitampura where at the instance of ASI Raju Yadav he took the photographs of the scene of crime from different angles which photographs are Ex.PW2/A1 to Ex.PW2/A19. He has also placed on record the negatives of the photographs which are collectively Ex.PW2/B. (46) In his cross examination by Ld. Defence counsel, witness has deposed that he had gone to the spot along with crime team and reached St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 46 there at about 7:10 PM and remained there till 7:50 PM and he had taken the photographs on the directions of the Investigating officer. According to him public persons were present at the spot but they were present outside and nobody was permitted to come inside the room. He has denied the suggestion that he had taken the photographs after manipulation of the scene of crime.
(47) PW3 Ct. Satish is also a formal witness who in his examination in chief by way of affidavit which is Ex.PW3/1 proved that on 22.7.2011 on the directions of Inspector Satyender Gosain he went to BSA Hospital mortuary where doctor handed over to him total nine exhibits relating to the deceased which he in turn handed over to Inspector Satyender Gosain who seized the same vide memo Ex.PW3/A. He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
(48) PW4 Ct. Rajbir has in his examination in chief by way of affidavit Ex.PW4/1 proved that on 12.7.2011 at about 9:10 AM Duty Officer W/HC Usha gave him an original Tehrir along with FIR to deliver to ASI Raju Yadav and accordingly he delivered the same to ASI Raju Yadav at KU Block Park, Pitampura. According to him, ASI Raju Yadav recorded the statement of the complainant at 10:00 AM and he remained with ASI Raju Yadav during the search of the missing girl. (49) In his cross examination by Ld. Defence Counsel the witness has deposed that he did not make any departure entry when he left the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 47 police station and has voluntarily added that he was already on the area patrolling. According to him on that day they returned to the police station at about 3:303:45 PM after searching for the missing girl. (50) PW5 HC Anand Swaroop has in his examination in chief by way of affidavit which is Ex.PW5/1 proved that on the night of 14.7.2011 on the directions of Inspector Satyender Gosain he went to BSA Hospital for medical examination of the accused Sanjay Kumar along with SI Prem Singh and other staff. He has deposed that the doctor conducted the medical examination of the accused Sanjay and handed over to him a sealed box containing exhibits/ samples. He has proved that the doctor also handed over to him sample seal and MLC of accused Sanjay which he in turn produced before the Investigating Officer who seized the same vide memo Ex.PW5/A. In his cross examination by Ld. Defence counsel witness has denied the suggestion that doctor did not handed over any exhibits to him.
(51) PW6 W/HC Usha is the Duty Officer who in her examination in chief by way of affidavit which is Ex.PW6/1 has proved that on 12.7.2011 she received one rukka from ASI Raju Yadav on the basis of which she got registered the FIR No. 226/11 under Section 363 IPC through computer operator, copy of which FIR is Ex.PW6/A. She has also proved having made an endorsement on the rukka which is Ex.PW6/B and after registration of the FIR she handed over the original rukka and tehrir to Ct. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 48 Rajbir for delivering the same to ASI Raju Yadav.
(52) In her cross examination by Ld. Defence counsel the witness has deposed that she had received the tehrir at 8:15 PM and made her endorsement at 8:20 PM. According to her, it took her about 2025 minutes to record the FIR on the computer. Witness has denied the suggestion that the contents of the FIR have been changed and manipulated at the instance of the investigating officer at a later date.
(53) PW7 SI Devender is the Crime Team Incharge who in his examination in chief by way of affidavit which is Ex.PW7/1 has proved that on 13.7.2011 on receiving the message from Control Room he reached the scene of crime at NDPL Office KU Block Pitampura where he inspected the spot and prepared the Crime Team report which is Ex.PW7/A which he handed over to ASI Raju Yadav.
(54) During his cross examination by Ld. Defence Counsel the witness has deposed that he had received the message at about 6:55 in the evening and he reached the spot at about 7:05 PM. According to him, he met ASI Raju Yadav, SHO Police station Maurya Enclave and the remaining staff at the spot. Witness has further deposed that they could not lift any chance prints from the spot and except for the blood stains, bunch of human hairs they could not find any other exhibits. The witness has deposed that he did not seize anything and all the seizures were made by the Investigating officer. Witness has denied the suggestion that he prepared the report on the directions of the SHO/Investigating officer. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 49 (55) PW8 Ct. Sandeep Kumar has in his examination in chief by way of affidavit which is Ex.PW8/1 proved that on 24.8.2011 on the directions of Inspector Satyender Gosain he took seven sealed pullandas and two sample seals from the MHCM and deposited the same in the FSL Rohini. He has not been crossexamined by the Ld. Defence Counsel. (56) PW9 Ct Bijender has in his examination in chief by way of affidavit which is Ex.PW9/1, proved that on 19.8.2011 on the directions of Inspector Satyender Gosain he received four exhibits and one sample seal duly sealed vide RC No. 88/21/11 and seven exhibits and two sample seals duly sealed vide RC No. 89/21/11 from the MHCM and deposited the four exhibits and sample seals in FSL Rohini. According to the witness, one sample seal from the exhibits of RC No. 89/21/11 was also taken by the FSL along with the exhibits vide RC No. 88/21/11 but the exhibits vide RC No. 89/21/11 could not be deposited since one sample seal was short. He has deposed that one receiving copy of RC No. 88/21/11 and seven exhibits and one sample seal duly sealed were handed over to the MHCM along with the acknowledgment with regard to deposit of exhibits of RC No. 88/21/11. The witness has further proved that on 23.8.2011 he took an exhibit along with a request letter and went to Mortuary, BSA Hospital for issue of sample seal where Dr. J.V. Kiran handed over to him a sealed envelope which he (the witness) handed over to the Investigating Officer who seized the same. In his cross examination by Ld. Defence counsel the witness has denied the suggestion that the exhibits were tampered and changed while they were in St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 50 his possession.
(57) PW10 W/Ct. Archana has in her examination in chief by way of affidavit which is Ex.PW10/1 proved that on 13.7.2011 while posted in PCR (PHQ) when information was received from mobile no. 9818100432 regarding a dead body of a small girl aged about 10 years lying in KU Block, Ramlila Ground, NDPL Sub Station Pitampura, on which she completed the PCR form which is Ex.PW10/A and passed on the information. She has not been crossexamined by the Ld. Defence Counsel. (58) PW11 HC Hoshiyar Singh has in his examination in chief by way of affidavit Ex.PW11/1 proved that on 13.7.2011 while working as Duty Officer at Police Station Maurya Enclave at about 6:15 PM the Wireless Operator informed him that information was received that a dead body of a girl aged about 10 years was lying in NDPL sub station pursuant to which information he recorded vide DD No. 31A which is Ex.PW11/A. The said witness has not been crossexamined by the Ld. Defence Counsel.
(59) PW12 HC Radhey Kishan is the MHCM who in his examination in chief by way of affidavit which is Ex.PW12/1 has proved the various entries made by him in the Register No. 19 and 21. According to him on 13.07.2011 ASI Raju Yadav deposited in the malkhana three sealed parcels, duly sealed with the seal of RY vide RC No. 521/11 in register No. 19 copy of entry is Ex.PW12/A. He has further deposed that on 14.07.2011 Insp. Satender Gosain deposited in the malkhana two sealed St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 51 parcels, duly sealed with the seal of SG and personal search of the accused Sanjay Kumar vide entry No. 529/11 in register No. 19, copy of which is Ex.PW12/B. He has also proved that on 15.07.2011 Insp. Satender Gosain deposited in the malkhana seven sealed parcels duly sealed with the seal of the hospital after which he made entry at serial No. 530 in register No. 19, copy of which is Ex.PW12/C. Witness has further deposed that on 22.07.2011 Insp. Satender deposited in the malkhana nine sealed parcels duly sealed with the seal of hospital pursuant to which he made entry No. 568/11 in register No. 19, copy of which is Ex.PW12/D (running in one page). According to him Inspector Satender Gosain also deposited in the malkhana one sample seal of the hospital and he made entry in this regard at serial No. 623/11 in register No.19, copy of which is Ex.PW12/E. He has also proved the entries in register no.21 vide RC No. 88/21/11 dated 19.08.2011 copy of which is Ex.PW12/F; receipt issued by FSL which is Ex.PW12/F1; copy of RC No. 89/21/11 dated 19.08.2011 which is Ex.PW12/G (running into two pages); copy of RC No. 96/21/11 dated 24.08.2011 which is Ex.PW12/H (running into two pages) and receipt issued by FSL which is Ex.PW12/H1.
(60) In his cross examination by Ld. Defence counsel witness has admitted that the entry Ex.PW12/E does not reflect the date of deposit, however signatures of the Investigating Officer are present in the said entry. According to him, Investigating Officer did not hand over his seal to him at St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 52 any point of time.
(61) PW 28 Ct. Ram Chander has deposed that on 13.7.2011 he was posted at Police Station Maurya Enclave and was on emergency duty from 8 AM to 8 PM when at about 6:15 PM the duty officer received a call regarding a dead body of a child aged about 10 years lying inside the NDPL office at KU Block Pitampura. According to the witness, the information was recorded vide DD No. 31A which was marked to ASI Raju Yadav and thereafter, he along with ASI Raju Yadav went to the spot i.e. NDPL Office KU Block Pitampura where they found the dead body of girl child aged about 810 years lying in the eastern corner of the switch gear room. Witness has further deposed that ASI Raju Yadav informed the senior officers about the incident and Crime team was called who inspected the crime scene and the spot was photographed by them. According to the witness, the Investigating Officer ASI Raju Yadav lifted the exhibits from the spot and seized the same vide memo Ex.PW15/C. Witness has further deposed that the strands of hairs were also lifted by the Investigating officer from near the dead body which were duly sealed and seized vide memo Ex.PW15/B and the seal after use was handed over to him. He has also deposed that the Investigating Officer handed over to him an application to preserve the dead body on which he took the dead body to the BSA hospital mortuary. Further, on 14.7.2011 the Investigating Officer ASI Raju Yadav came to BSA Hospital Mortuary and got conducted the postmortem of the dead body which was identified by one Shyam Paswan (father) and Mahesh St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 53 Pawan (uncle) vide memo Ex.PW15/D and Ex.PW13/A after which the dead body was handed over to Shyam Paswan, the father of the deceased vide memo Ex.PW15/E. The said witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted. (62) PW 29 Ct. Sohanbir has deposed that on 14.07.2011 he was posted at Police station Maurya Enclave and on that day he joined the investigation with Inspector Satender Gosain and ASI Raju Yadav during which they reached near Gopal Mandir, GP Block, Pitampura, Delhi in search of accused. According to him, one secret informer met them and informed that accused Sanjay who was working in the office of NDPL was present near Haiderpur canal then they immediately reached there and at the instance of secret informer they apprehended accused Sanjay. The witness has further deposed that the accused was interrogated by Inspector Satender Gosain after which he was arrested vide memo Ex.PW29/A and his personal search was conducted vide Ex.PW29/B. According to him, after sustained interrogation of the accused Sanjay his disclosure statement was recorded by the Investigating officer vide Ex.PW29/C and thereafter they went to NDPL office in front of LU market, Pitampura, Delhi with accused Sanjay where Kuldeep met them and accused Sanjay pointed out the place of incident where he had committed rape and caused injuries to the victim pursuant to which pointing out memo was prepared by the Investigating officer vide Ex.PW27/A. The witness has also deposed that thereafter St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 54 accused Sanjay led them to the staircase on the ground floor and produced one polythene which was checked by the Investigating Officer and one pant and shirt were found in the polythene which the accused Sanjay disclosed that he was wearing at the time of incident. According to him accused Sanjay also produced one steel rod from that place and disclosed that he caused injuries to the victim by that rod after which Investigating Officer kept the clothes with polythene in a cloth pullanda and sealed the same with the seal of SG. He has testified that measurement of steel rod was taken by the Investigating Officer which was found about 2 feet long and the same was also kept in a cloth pullanda and sealed with the same seal after which both the pullandas were taken in possession by the Investigating Officer vide memo Ex.PW27/B. Witness has further deposed that Investigating Officer recorded statement of Kuldeep and thereafter they returned to the police station and Investigating officer recorded his statement. (63) He has correctly identified the accused Sanjay Kumar Valmiki in the Court and also identified the case property i.e. one Y shaped steel rod as the same rod which was got recovered by the accused Sanjay Kumar Valmiki, which is Ex.P1; cloth in which it was sealed which is Ex.P2; polythene containing one pant and shirt recovered at the instance of accused Sanjay and the torn cloth used by the Investigating officer, which polythene is Ex.P3, Pant is Ex.P4, Shirt is Ex.P5 and the torn cloth is Ex.P6. (64) In his cross examination by the Ld. Defence Counsel the witness has deposed that they left the police station on 14.07.2011 at about St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 55 6.25 PM and Investigating Officer made a departure entry in this regard in his presence. According to him, he did not make any departure entry himself but he does not remember the number of departure entry made by the Investigating Officer. Witness has further deposed that they used a private vehicle i.e. Wagon R of the Investigating Officer and they reached near the Gopal Mandir within five to six minutes. According to the witness, secret informer was already present there who gave secret information to the Investigating Officer in his presence. He has further deposed that Gopal Mandir was at a distance of five to ten paces from the place where secret informer gave information to the Investigating Officer but he does not remember whether Investigating Officer gave information to the higher officials or Police Station after receiving the secret information. According to him, accused Sanjay was apprehended at the distance of 1012 paces from the Gol Chakker near Haiderpur Canal and was coming towards the District Park but no public person was present when the accused Sanjay was apprehended by them but he does not remember the exact time when accused Sanjay was apprehended by them. He does not remember whether any person was informed by the Investigating Officer about the arrest of accused Sanjay and the documents were prepared by the Investigating Officer on the bonnet of the WagonR. The witness also does not remember as to how much time was taken by the Investigating Officer for preparation of arresting documents and states that disclosure statement of accused Sanjay was recorded at the spot where he was arrested. According St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 56 to him, it was written by the Investigating Officer and it took about fifteen minutes in recording of disclosure statement of accused. He has also deposed that they reached the office of NDPL at about 9.00PM and no other public person except Kuldeep was present there. According to him Kuldeep left the NDPL office at about 10.0010.30PM and first of all accused produced the polythene containing his clothes after which he produced the steel rod. Witness has further deposed that Investigating Officer took measurements of the steel rod by a plastic scale but he does not remember the exact time taken by the Investigating Officer for preparation of the pullanda of these articles. He has testified that the seal after use was handed over to him by the Investigating Officer but he does not remember whether any memo was prepared by the Investigating Officer about handing over the seal to him nor does he remember when he returned the seal to the Investigating Officer. Witness has deposed that the written work was done by the Investigating Officer at the place of recovery while sitting on the chairs in the NDPL office but he does not remember the exact time taken by the Investigating Officer for writing work in the NDPL office. He is unable to tell the sequence of preparation of documents. He has denied the suggestion that he did not join the investigation of this case or that nothing was recovered at the instance of the accused or that the alleged recovery was planted upon him. Witness has further denied the suggestion that the accused did not make any disclosure statement nor he pointed the place of incident or that the entire writing work was done while sitting in the police St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 57 station and the signatures of accused was obtained on blank papers which were later on converted into certain incriminating documents against the accused.
(65) PW30 ASI Raju Yadav is the initial Investigating Officer who has deposed that on 12.07.2011 he was posted at Police Station Maurya Enclave and on that day he was present at Police station due to night emergency duty. According to him on that day at about 7.30AM one person namely Shyam Paswan came to the police station and reported that his daughter 'U' aged about 8 years was missing on which he recorded the statement of Shyam Paswan vide Ex.PW15/A. The witness has proved having made endorsement on this statement vide Ex.PW30/A which he gave to the Duty Officer for registration of FIR. According to the witness, he along with Shyam Paswan went to the spot at KU Block Park, Pitampura and made inquiries there but no clues were found of the missing girl, meanwhile, Ct. Rajveer came there and handed over copy of FIR and original rukka to him. Witness has further deposed that he recorded the supplementary statement of Shyam Paswan and Ct. Rajveer and thereafter he returned back to the police station and got flashed the wireless message to all over India about the missing girl. The witness has also testified that on 13.7.2011 he was on emergency duty and on receiving the DD No. 31A Ex.PW11/A he along with Ct. Ram Chander reached at the NDPL Office KU Block, Pitampura where he found a dead body of a female child aged about eight to nine years on the eastern side of electric gear room between St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 58 the panel and the wall and foul smell was coming out on which he immediately called Shyam Paswan and Crime Time officials at the spot. According to the witness, Shyam Paswan reached there and identified the dead body as that of her daughter 'U', meanwhile, SHO also reached there and crime team officials also reached the spot. Witness has further deposed that the Crime Team officials inspected the spot and took the photographs of the scene of crime. According to the witness, the Crime Team Incharge after inspecting the site gave his report to him after which he (witness) lifted the hairs from the spot and kept the same in a plastic container and sealed the same with the seal of RY and seized the same vide memo Ex.PW15/B. Witness has further deposed that the blood spots from the wall was also taken and kept the same in a plastic container and sealed the same with the seal of RY; he also lifted earth control from the wall (brick piece) and kept the same in a plastic container and sealed the same with the seal of RY and both the pullandas were seized by him vide seizure memo Ex.PW15/C. The witness he proved having prepared the site plan which is Ex.PW30/B and has deposed that the dead body of 'U' was sent to BSA Mortuary through Ct. Ram Chander. Witness has further deposed that he also interrogated Shiv Kumar, Bhag Chand Meena, Arpan officials of NDPL after which he returned back to the police station and deposited the case property with the MHCM.
(66) He has deposed that on 14.7.2011 at about 8:45 to 9:00 AM, one Dalip Paswan along with Saroj Paswan came to the police station and St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 59 informed him that Saroj Paswan had seen the deceased with one NDPL Sweeper Sanjay Kumar at the gate of NDPL office on 11.7.2011 on which he recorded the statement of Dalip Paswan and Saroj Paswan. According to him thereafter he went to BSA Hospital Mortuary and filled the inquest form which is Ex.PW30/C. He has proved having recorded the statement of Shyam Paswan and Mahesh Paswan vide Ex.PW15/D and Ex.PW13/A respectively regarding identification of the dead body. According to him on his request postmortem was conducted on the dead body of deceased 'U' vide his request Ex.PW30/D. Witness has further deposed that he also prepared the brief facts which are Ex.PW30/E and after postmortem the dead body was handed over to Shyam Paswan vide Ex.PW15/E. According to him, he discussed with the Autopsy Surgeon who informed him that the dead was caused due to blunt object on which he returned back to the police station and investigations were handed over to Inspector Satender Gosain. Witness has further deposed that on the same day i.e. 14.7.2011 at about 6:25 PM he along with Inspector Satender Gosain and Ct. Somveer reached at Gopal Mandir Pitampura where one secret informer met them and informed the Investigating Officer that Sanjay sweeper of the NDPL wanted in this case was seen at G and JU Block round about near District Park, Haiderpur Canal Pitampura. According to the witness, they immediately reached there where at the instance of secret informer accused Sanjay was apprehended by them who was interrogated by the Investigating Officer. The witness has testified that initially the accused did not say anything but St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 60 on sustained interrogation he confessed about his involvement in the rape and murder of the victim. Witness has further deposed that thereafter the accused was arrested by the Investigating officer vide memo Ex.PW29/A and his personal search was taken vide Ex.PW29/B. According to him, the disclosure statement of the accused was recorded by the Investigating Officer vide Ex.PW29/C wherein he had disclosed that he can point out the place of incident and clothes and weapon of offence could be recovered, on which at the instance of the accused Sanjay they reached at NDPL Office KU Block, Pitampura, Delhi where one security person namely Kuldeep met them. The witness has further deposed that accused Sanjay lead them to the place of incident i.e. the electric gear room pursuant to which pointing out memo was prepared vide Ex.PW27/A and thereafter accused Sanjay led them to the staircase on the ground floor from where he produced one polythene which was checked by the Investigating Officer and one pant of green colour and one striped shirt were found which the accused Sanjay disclosed were those which he was wearing at the time of incident. According to him accused Sanjay also produced one steel rod from that place and disclosed that he had caused injuries to the victim by that rod after which Investigating Officer kept the clothes with polythene in a cloth pullanda and sealed the same with the seal of SG. Witness has deposed that measurement of steel rod was taken by the Investigating Officer during which it was found about 2 feet long and thereafter the rod was kept in a cloth pullanda and sealed with the same seal and both the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 61 pullandas were taken in possession by the Investigating Officer vide memo Ex.PW27/B. He has deposed that thereafter they returned to the police station where the Investigating Officer deposited the seized articles in the Malkhana. He has testified that on 03.09.2011 he alongwith Inspector Satender Gosain, SI Mahesh Kumar (Draftsman) reached the place of incident at NDPL office where SI Mahesh Kumar took the rough notes and measurement at his instance.
(67) The witness has correctly identified the accused Sanjay Kumar Valmiki in the Court and has also correctly identified the case property i.e. Y shaped steel rod as the same rod which was got recovered by the accused Sanjay Kumar Valmiki which rod is Ex.P1; the cloth in which it was sealed which is Ex.P2; one polythene with one green pant and one striped shirt and one torn cloth as the same polythene, recovered at the instance of accused Sanjay and the torn cloth bearing the seal of SG was used by the Investigating officer which polythene is Ex.P3, Pant is Ex.P4, Shirt is Ex.P5 and the torn cloth is Ex.P6.
(68) In his cross examination by Ld. Defence Counsel, the witness has deposed that he had inspected the entire NDPL Office on 13.07.2011 and left police station for Mortuary of BSA Hospital on 14.07.2011 at about 10.00AM. According to him on the same day i.e. on 14.07.2011 at about 6.25 PM he alongwith Investigating Officer and Ct. Sombir left the Police Station on a private vehicle of the Investigating Officer. The witness has St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 62 further deposed that Investigating Officer made the departure entry but he is unable to tell the number of the same. According to him, no person was asked to join the investigation at Gopal Mandir and accused Sanjay was apprehended at a distance of five to ten paces from the round about (gol chakker) towards the District Park. The witness has further deposed that they all were in police uniform and the secret informer pointed out towards the accused from a distance of 2530 paces. He has testified that accused Sanjay tried to run away on seeing the police party but about after twothree paces he was overpowered by them but their uniform was not torn during this process. According to the witness, threefour public persons were passing through the place at that time and Investigating Officer asked them to join the investigation but none agreed, however, Investigating Officer did not serve any notice to them. Witness has further deposed that accused Sanjay was arrested at about 7.35PM and Investigating Officer informed Bhag Chand Meena, Time Keeper of NDPL about the arrest of accused Sanjay. He has deposed that the disclosure statement of the accused was recorded while sitting on a pavement under the street light at the corner of District Park. According to him, they reached at the NDPL office at about 9.00PM and no other public person was present there except Kuldeep. According to him Kuldeep left the spot at about 10.0010.30PM and Investigating Officer did not prepare the site plan of the place of recovery in his presence. Witness has further deposed that Investigating Officer took measurement of the rod by a plastic scale and it took about 30 minutes in St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 63 sealing the case property. Witness has further deposed that pointing out memo was prepared in the electric gear room and recovery memo was prepared in the stair case from where the recovery was effected and first of all pointing out memo was prepared and thereafter recovery memos of clothes and rod were prepared in the NDPL office. He has denied the suggestion that he did not join the investigation of this case or that nothing was recovered at the instance of the accused or that the alleged recovery was planted upon him. Witness has further denied the suggestion that accused did not make any disclosure statement nor he pointed the place of incident or that the entire writing work was done while sitting in the police station. He has also denied the suggestion that the signatures of accused was obtained on blank papers which were later on converted into certain incriminating documents against the accused or that accused was not arrested in the manner as stated by him. He has further denied the suggestion that accused has been falsely implicated in the present case at the instance of NDPL officials and the Investigating Officer. (69) PW31 Inspector Satyender Gosain is the Investigating Officer who has deposed that on 14.07.2011 he was posted at Police Station Maurya Enclave as Inspector Investigation when in evening time investigation of this case was marked to him. According to him at about 6.25PM he alongwith ASI Raju Yadav and Ct. Somveer reached at Gopal Mandir Pitampura where one secret informer met them and informed him that Sanjay sweeper of NDPL wanted in this case was seen at G and JU St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 64 Block round about near District Park, Haiderpur Canal Pitampura. Witness has further deposed that they immediately reached there and at the instance of secret informer accused Sanjay was apprehended by them after which the accused was interrogated by him but initially he did not say anything and on sustained interrogation the accused confessed about his involvement in the rape and murder of the victim after which he was arrested by him vide Ex.PW29/A and his personal search was taken vide Ex.PW29/B. Witness has further deposed that the disclosure statement of the accused was recorded by him vide Ex.PW29/C wherein the accused disclosed that he can get recover the clothes and weapon of offence. According to the witness, thereafter they along with the accused reached at NDPL Office KU Block, Pitampura, Delhi where one security person namely Kuldeep met them and thereafter accused Sanjay led them to the place of incident i.e. the electric gear room pursuant to which the pointing out memo was prepared vide Ex.PW27/A. Witness has further deposed that thereafter the accused Sanjay led them to the portion of the staircase on the ground floor and produced one polythene from under the staircase which was checked by the him and one pant of green colour and one striped shirt were found in the polythene which the accused Sanjay disclosed that he was wearing the said clothes at the time of incident. According to him, accused Sanjay also produced one Y shaped steel rod from that place and disclosed that he had caused injuries to the victim by that rod on which he (the witness) kept the clothes with polythene in a cloth pullanda and sealed the same with the seal St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 65 of SG. He has deposed that measurement of steel rod was taken by him which was found about two feet long from top to bottom and thereafter it was kept in a cloth pullanda and sealed with the same seal and both the pullandas were taken in possession by him vide memo Ex.PW27/B. The witness has testified that he recorded the statement of Kuldeep and thereafter they returned to the police station and he deposited the seized articles in the Malkhana. He has deposed that the accused Sanjay was sent to BSA Hospital, Rohini under the supervision of SI Prem in the custody of HC Anand Swaroop vide his application for medical examination of accused Sanjay which is Ex.PW31/A. According to him, after medical examination HC Anand Swaroop handed over the custody of accused Sanjay to him with his MLC and HC Anand Swaroop handed over seven exhibits in respect of accused Sanjay to him in a sealed condition with the seal of SD with sample seal which he seized vide memo Ex.PW5/A. (70) The witness has also deposed that thereafter on 15.07.2011 he recorded the statement of Shiv Kumar, Bhagmal Meena and Arpan. He has testified that on 22.07.2011 he sent Ct. Satish to BSA Hospital for collection of exhibits of victim and Ct. Satish handed over to him the exhibits in respect of Victim 'U' in sealed condition with the seal of Department of FM Dr. BSA, DELHI GOVERNMENT which he seized vide seizure memo Ex.PW3/A. According to the Investigating Officer, on 23.07.2011 he issued a notice under Section 91 Cr.P.C. to Sh. Yog Ram vide Ex.PW31/B St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 66 pursuant to which on 25.07.2011 Yog Ram came to the police station and produced the documents related to the appointment of accused Sanjay after which he (witness) seized the bio data, application for appointment, letter of appointment letter, conditions of appointment, attendance register and other documents vide Ex.PW24/B which documents are Ex.PW24/A1, Ex.PW26/A to Ex.PW26/I. He has proved that on 04.08.2011 he went to BSA Hospital Rohini and collected the postmortem report which is Ex.PW23/A. According to the witness on 08.08.2011 on his direction Ct. Surjeet took the weapon of offence from the malkhana of the police station to Mortuary of BSA Hospital for opinion of the doctor which application in this regard is Ex.PW16/A and Ct. Surjeet handed over the opinion of the doctor Ex.PW16/B to him. He has testified that on 19.08.2011 exhibits of this case were sent to FSL Rohini through Ct. Bijender and at the evening time he (Ct. Bijender) informed him that seven exhibits and one sample seal could not be deposited in the DNA Division FSL Rohini because one sample seal of these seven exhibits was short and one of sample seal of these seven exhibits were inadvertently deposited in the FSL Rohini with four exhibits and one sample seal. He has further deposed that Ct. Bijender deposited these articles in seven exhibits and one sample seal again in the Malkana. The witness has also deposed that on 23.08.2011 he sent Ct. Bijender to the Mortuary of BSA Hospital for obtaining another sample seal and he (Ct. Bijender) returned back and handed over another sample seal of St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 67 DEPT. OF FM, DR. BSA, DELHI GOVT which he seized vide memo Ex.PW31/C and deposited the same in the Malkhana. According to the witness, on 24.08.2011 Ct. Sandeep deposited the above said seven exhibits and two sample seals to DNA Division of FSL Rohini.
(71) The witness has proved having recorded the statement of MHCM HC Radha Krishan on 25.08.2011. He has deposed that on 03.09.2011 he along with ASI Raju Yadav and SI Mahesh Kumar (Draftsman) reached the place of incident at NDPL office where SI Mahesh Kumar took the rough notes and measurement at the instance of ASI Raju Yadav and SI Mahesh Kumar handed over scaled site plan Ex.PW1/A to him. According to him, on 06.09.2011 he collected the PCR form Ex.PW10/A. He has further deposed that on 24.09.2011 Ct. Dalbir Singh handed over 19 photographs to him and during his investigation he recorded statements of witnesses and after completion of investigation he prepared the charge sheet against accused Sanjay Kumar Valmiki and filed the same in the court. He has correctly identified the accused Sanjay Kumar Valmiki in the Court and also correctly identified the case property i.e. one Y shaped steel rod as the same rod which was got recovered by the accused Sanjay Kumar Valmiki, which rod is Ex.P1 and the cloth in which it was sealed is Ex.P2; one polythene with one green pant and one striped shirt and one torn cloth bearing the seal of SG as the same polythene, pant and the shirt recovered at the instance of accused Sanjay which polythene is St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 68 Ex.P3; Pant is Ex.P4; Shirt is Ex.P5 and the torn cloth is Ex.P6. (72) In his cross examination by Ld. Defence counsel, the witness has deposed that on 14.07.2011 at about 6.25 PM he along with ASI Raju Yadav and Ct. Sombir left the Police station on his private vehicle and he made the departure entry but he is unable to tell the number of the same. According to him, the secret informer was already present near Gopal Mandir before their reaching and the place where the secret informer met them, is at a distance of about 2030 steps from Gopal Mandir. Witness has further deposed that he did not inform his senior police officer or police station about the secret information nor did he ask any public persons to join the investigation at Gopal Mandir. He has stated that when they reached at Gol Chakkar, twofour persons moved there but they did not disclose their names and address. He has testified that the accused Sanjay was apprehended at a distance of ten paces from round about (gol chakker) and the secret informer pointed towards the accused from a distance of 25 feet. According to him the accused Sanjay did not try to run away on seeing the police party but has voluntarily added that he (accused) accelerated his speed. Witness has further deposed that the accused was apprehended after ten to twenty paces and their uniform was not torn during this process. He has stated that the disclosure statement of accused Sanjay was recorded while sitting on the wall of footpath and it took about one hour in recording the disclosure statement. He also states that when they reached at the NDPL office at about 9.00 PM and no other public person was present there St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 69 except Kuldeep. Witness has further deposed that Kuldeep left the spot at about 10.30 PM and he did not prepare the site plan of the place of recovery and took measurement of the rod by plastic scale. According to the witness, it took about 2030 minutes in sealing the case property which seal after use was handed over to Ct. Sombir but no memo was prepared by him about handing over of the seal. He does not remember whether Ct. Sombir returned his seal to him or not and has stated that first of all pointing out memo was prepared and thereafter recovery memos of clothes and rod were prepared in the NDPL Office. According to him, all the writing work was done while sitting in one of the room of NDPL Office. He has denied the suggestion that he did not conduct the investigation of this case in a fair manner or that nothing was recovered at the instance of the accused. The witness has also denied the suggestion that the alleged recovery was planted upon the accused or that accused did not make any disclosure statement nor he pointed the place of incident. Witness has denied the suggestion that the entire writing work was done while sitting in the police station or that the signatures of accused was obtained on blank papers which were later on converted into certain incriminating documents against the accused. The Investigating Officer has also denied the suggestion that accused has been falsely implicated in the present case at the instance of NDPL officials or that the documents pertaining to the employment of accused Sanjay were fabricated later on in order to falsely implicate the accused in this case. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 70 STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(73) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein the incriminating material was put to him which he has simply denied. He has stated that he is innocent and has been falsely implicated in the present case by the NDPL Officials in collusion with the Investigating Officer to work out this blind murder case. According to him, he has nothing to do with the alleged offence. He has stated that the alleged documents of his employment have been fabricated by Yog Ram to implicate him at the instance of NDPL Officials. The accused however has preferred not to lead evidence in his defence despite opportunity in this regard. FINDINGS:
(74) I have heard the arguments advanced by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
PUBLIC WITNESSES:
1. Mahesh Paswan He is the uncle of the deceased who has proved having
(PW13) identified the dead body of the deceased at BSA hospital on
14.07.2011 vide statement Ex.PW13/A.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 71
2. Dalip Paswan This witness has deposed on the following aspects:
(PW14) 1. That he is running a tea stall outside the NDPL Office patri where he put his rehri where his son Deepak Paswan aged 1213 years also helps him and his nephew Saroj Paswan S/o Mangal Paswan, aged about 10 years who is studying in class third in the MCD School EU Block Pitampura, often comes to the tea stall for playing.
2. That on 11.07.2011 he had to go somewhere and his son Deepak was sitting on his tea stall.
3. That on 13.07.2011 a dead body of a small girl aged about 89 years was found in the NDPL Office and there was a big hungama and inquiries were made from him by the staff of the NDPL and police in this regard.
4. That on 14.07.2011 his nephew Saroj told him that the girl whose dead body he had seen at the NDPL gate was of the same girl whom he (Saroj) had seen with accused Sanjay who was talking to her at the gate of the NDPL office about two days ago.
5. That Saroj identified the dead body of the girl as the same girl with whom Sanjay was talking.
6. That the accused Sanjay (whom the witness has correctly identified in the Court) was working in the NDPL office as sweeper.
7. That Saroj also informed him that he had gone to Mother Diary to purchase milk and while he was coming back, he saw the small girl talking to Sanjay at the gate of the NDPL.
8. That Saroj further told him that it was very hot and therefore after he (Saroj) purchased the milk and gave it to his (witness's) son (Deepak), he (Saroj) went and sat under the fan installed in the temple inside the NDPL office.
9. That Saroj also informed him that while he (Saroj) was sitting in the temple under the fan, he heard the screams and cries (chikhane ki awaj sunai di) of some child from inside the power house on which he (Saroj) peeped inside the power house from the jali when he St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 72 found Sanjay present.
10. That Saroj thereafter inquired from Sanjay who was there on which Sanjay told him to run away as there was no body (usne Sanjay se poocha waha kaun hai, to Sanjay ne usko kaha koi nahi hai, bhag yaha se) on which Saroj ran away.
11. That on 14.7.2011 in the morning his nephew Saroj informed him about all what he had seen, he (Dalip Paswan) immediately brought Saroj to the police station and produced him before ASI Raju Yadav who recorded his statement and also the statement of Saroj.
3. Master Saroj He is a child witness (aged 11 years) who had last seen the (PW25) deceased 'U' with the accused Sanjay and thereafter heard the cries of the child coming from the room inside the complex and saw Sanjay in the said room who threatened him to go away. He has deposed on the following aspects:
1. That he is a student of class third at Prathmik Vidhayala EU Block, Pitampura, Delhi and his uncle/ chacha Daleep Paswan is running a tea shop outside the NDPL office where he often goes to help him.
2. That on 11.07.2011 he was at the tea stall of his uncle/ chacha, helping his cousin brother (i.e. son of his chacha) namely Deepak and on that day on the asking of his brother Deepak he had gone to Mother Dairy KU Block for purchasing Milk.
3. That when he was going to purchase milk, he saw Sanjay (whom the child witness has correctly identified in the Court) who is the sweeper in the NDPL office was standing at the NDPL office along with a small girl aged about 810 years and thereafter he went to the Mother Dairy and after purchasing the milk he came back and handed over the milk to his cousin brother Deepak after which he went to the temple inside the NDPL complex to sit under the fan in the temple as it was very hot.
4. That there he heard the screams and cries of a child (bache ke cheekne aur rone ke awaze) coming from St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 73 NDPL Office, on which he went towards the office and started peeping inside from the wire mesh (jali) and he saw Sanjay inside the room.
5. That he asked Sanjay as to who was with him on which Sanjay replied that it was his brother and asked him to go away (aap ke sath main kaun hai, usne kaha mere sath mera bhai hai..... bhag ja yaha se).
6. That thereafter he went to the tea stall where his brother was sitting.
7. That on 13.07.2011 he came to know that a dead body of a small girl was found in the NDPL office on which he saw the dead body of the child and found it was the same girl who was standing with Sanjay when he was going to fetch milk.
8. That he saw the police making inquiries from his uncle/ chacha and his cousin brother and therefore on 14.07.2011 he told his chacha Daleep Paswan about seeing the small girl whose body was found with Sanjay.
9. That he also told his uncle/ chacha that he had heard screams coming from inside the office on which his chacha took him to the police station where he informed the police about what he had seen.
4. Shyam Paswan He is the father of the deceased who has deposed on the (PW15) following lines:
1. That he is working as a baildar (Mazdoor) and about 1516 days prior to 11.7.2011 he came to Delhi along with his family for work.
2. That his wife was working as a maid in the kothies KU Block, Pitampura, Delhi and at that time he was having his three children.
3. That on 11.7.2011 he went for his job and his wife Sunita went in the Kothies for her work after leaving the children at KU Block Park near NDPL office and when she came there at about 4:00 PM she found that his elder daughter 'U' aged about 8 years was not present in the park.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 74
4. That his wife tried to search 'U' and in the meanwhile he also returned from his work on which his wife told him about missing of 'U'.
5. That they tried to search her in the area but she was not traced and at that time they were not having any photograph of his daughter.
6. That on 12.7.2011 they went to the police station where police recorded his statement which is Ex.PW15/A.
7. That whenever his wife used to leave the jhuggi for work she left her two other children in the supervision of elder daughter 'U' in the park.
8. That on 12.7.2011 he along with police officers also tried to search his daughter and on 13.7.2011 he was called by the police at NDPL Office, KU Block, Pitampura where he reached at about 7:00 PM and he found the dead body of his daughter inside the NDPL Office between the machines and the wall.
9. That blood was found scattered on the walls, floor and strands of hair lying on the floor.
10. That the police lifted the strands of hair and kept them in a plastic box and sealed the same and seized vide memo Ex.PW15/B.
11. That police also lifted the blood stained wall and floor after breaking it and converted into parcels and seized the same after sealing the same vide memo Ex.PW15/C.
12. That the dead body of his daughter was taken to the hospital where its postmortem was conducted.
13. That on 14.7.2011 he along with Mahesh Paswan went to the hospital and identified the dead body of his daughter vide Ex.PW15/D and after postmortem he received the dead body vide memo Ex.PW15/E.
5. Smt. Sunita She is the mother of the deceased who has deposed on the (PW21) following aspects:
1. That at the time of incident she was residing at jhuggies on rent at Haiderpur and was working in the kothies as a domestic work and doing Jharu paucha and has four children.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 75
2. That her eldest daughter 'U' was about 89 years and younger to her is Bholu Kumari who at that time was seven years followed by Shivani aged 4 years and youngest is her son Ankush aged one and a half years.
3. That at the time of the incident on 11.07.2011 she had left his second daughter Bholu in the village and was in Delhi with his other three children.
4. That at about 3PM she left all her three children including the deceased at KU Block Park, Pitampura opposite the NDPL office, while she went for work to the kothies and when she returned at about 4PM her eldest daughter 'U' was not there.
5. That while she was about to go for her work in the kothies, her daughter 'U' told her that she was going to drink water and thereafter while leaving the two children she went away stating "mami main pani peenae ja rahi hun".
6. That her younger daughter informed her that 'U' wanted to take water and had left her and the younger brother in the park stating that she was going to drink water and thereafter they had seen her going into the NDPL office.
7. That when she did not find his daughter she went to the NDPL office and tried to search for her around the area but could not locate her, on which she informed her husband and thereafter she along with her husband went to search for her daughter in the area but she (child) could not be found.
8. That on the next day i.e. on 12.07.2011 her husband went to the police station and lodged the complaint.
6. Shiv Kumar This witness is employed with the NDPL as Zonal Officer (PW20) and posted at KU Block, Pitampura. He has deposed on the following aspects:
1. That at the time of the incident on 11.07.2011 he was on duty from 9:30 AM to 5:30 PM and his office is situated in the room at first floor.
2. That on 11.07.2011 he was in his office from 9:30 AM to 12 noon after which he went to meet the Principal, St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 76 Sarvodya School, ZP Block, Pitampura in connection with treeplantation which was to be done by their department.
3. That he stayed at the school for about 1 1.5 hours and returned to his office at about 11:30 PM where he worked in his office till about 4 PM after which he went to attend the meeting in the NDPL circle office at A Block, Lok Vihar from where he got free at about 78 PM and returned home thereafter.
4. That on the next day i.e. 12.07.2011 he was in the office through out the day from 9:30 AM to 5 :30 PM and during this period he did not notice anything abnormal.
5. That on 13.07.2011 he reached his office at about 9:30 AM and remained there for about 2025 minutes after which he went to special maintenance of electric network, A Block, Lok Vihar where he stayed till about 1:30 PM and thereafter he returned to Pitampura Office where he had his lunch.
6. That at about 3:00 PM he left his office for the District Office at GP Block and while he was there, he received a call from his office that the MCD officials were stopping/ obstructing a digging work being done by their staff at GP Block.
7. That when he reached the GP Block, the MCD staff had already left and in the meantime he received a call from KU Block that the dead body of a small girl had been found in the switch gear room on which he immediately came back to his office at KU Block, where he met Bhag Chand, the time keeper and the other staff of their department.
8. That when he entered the room there was a stink/ smell coming out from the said room and noticed that the body was of a small girl aged about 810 years which was in the state of decomposition (fool rahi thi) and foul smell was emanating from the same.
9. That he immediately telephoned to his senior officers and informed them what had happened and thereafter dialed 100 number, after which the PCR reached the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 77 spot and conducted the proceedings.
10. That the Investigating Officer had asked him about the attendance register which he had handed over to him later on and informed him that Sanjay was the sweeper in their sub station at NDPL KU Block who comes at 8AM in the morning and remained there till 4 PM during his duty hours.
11. That he also informed the Investigating Officer that Sanjay was not the employee of the NDPL but was an out sourced employee from M/s. Sumeet Facilities Pvt.
Ltd. and Arpan was the supervisor under whose supervision Sanjay used to work.
12. That during the duty hours they (out sourced employees) used to wear a dress comprising of dark green pants and white striped shirt.
13. That he also informed the Investigating officer that Sanjay was on duty from 11.07.2011 to 13.07.2011 and the Investigating Officer also made inquiries from him regarding the presence of children inside the NDPL complex on which he informed him that they had a water cooler installed on the ground floor and also on the first floor.
14. That a number of children from the adjoining government school and also the children of labours (majdoor) normally come inside the complex for taking water and they have never been stopped.
15. That the the presence of children inside the NDPL complex was nothing abnormal and therefore perhaps no body noticed the presence of the deceased girl child inside the complex.
16. That on inquiry by the Investigating Officer regarding the weapon by which the deceased was allegedly killed, he informed him that it was a switch gear operated handle which is normally kept in the open rack in the break down room and that this room was normally used by the staff of the NDPL including on duty ZSO, the other staff and the labours.
17. That most of the time during summer season this room remained vacant on account of the fact that the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 78 labour and other staff are on field duty and they do not remain present in the room.
He has correctly identified the accused Sanjay Kumar Valmiki who was working in their office as sweeper.
7. Bhag Chand This witness was posted as Zonal Officer Associate (Time (PW22) Keeper) at Zone 508, KU Block, Pitampura who has deposed as under:
1. That on 11.07.2011 he reached his office at about 9:30 AM and at about 12 noon he along with his Zonal Manager Shiv Kumar went to ZP Block from where they returned to their office at 1:30 PM and had their lunch.
2. That at about 2:30 PM he went to QU Block Pitampura at the house of Counselor, Rekha Gupta for getting the report signed from her and returned after about one hour and remained there till about 5:30 PM.
3. That on 12.07.2011 he came to his office at 9:30 AM and remained there through out the day but did not notice anything abnormal.
4. That on 13.07.2011 he came to his office at about 9:45 AM and while he was standing at the gate inside the complex near the service center, he noticed a foul smell and when he made inquiries from other persons they too noticed a foul smell.
5. That Sanjay sweeper was present in the office whom he called and asked him to search for the source of the stink/ smell.
6. That after about one and a half hour Sanjay came and told him that he could not find anything and later on the other staff persons told him that he (Sanjay) had found some dead mice and he had thrown them away.
7. That on the same i.e. 13.7.2011 at about 3:30 PM he noticed that the smell was increasing and therefore called the supervisor Aarpan and told him to check as the foul smell was still coming and he also telephoned to Sanjay asking him to remain there as the foul smell was still coming but Sanjay told him that he had already left by that time and thereafter did not return. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 79
8. That the Supervisor Arpan came to the complex and searched for the source of foul smell and at about 55:15 PM Arpan came to him and informed him that a dead body of small girl aged about 810 years was lying in the electric panel room (also called as switch gear room).
9. That on this he (witness) directed the staff not to go to said room and immediately informed Sh. Shiv Kumar and after some time Shiv Kumar reached the Zonal Office and made a PCR call at 100 number.
10. That the Investigating Officer made inquiries from him about the attendance of Sanjay who was the sweeper in their sub station at NDPL KU Block on which he informed him (the Investigating Officer) that Sanjay used to come at 8AM in the morning and remained there till 4 PM during his duty hours.
11. That he also informed the Investigating Officer that Sanjay was not the employee of the NDPL but was an out sourced employee from M/s. Sumeet Facilities Pvt.
Ltd. and Aarpan was the supervisor under whose supervision Sanjay used to work.
12. That Aarpan used to make a call in the office to inquire about the presence of Sanjay and also came personally to check him (Sanjay).
13. That during the duty hours he (Sanjay) used to wear a dress comprising of dark green pants and white striped shirt and he also informed the Investigating Officer that Sanjay was on duty from 11.07.2011 to 13.07.2011.
14. That the Investigating Officer also made inquiries from him regarding the presence of children inside the NDPL complex on which he informed him (Investigating Officer) that they had a water cooler installed on the ground floor and also on the first floor and a number of children from the adjoining government school and also the children of labours (majdoor) and from the neighbourhood market normally came inside the complex for taking water and they (staff) never stopped them, therefore the presence of children inside the NDPL complex was nothing St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 80 abnormal.
15. That he had also informed the Investigating Officer that perhaps the child had come to take water and no body noticed her presence inside the complex as it was something normal.
16. That on 13.07.2011 in the evening and on 14.07.2011 there was a "tor phor"/ damage caused to the office of the NDPL because of the protest of the jhuggies wala. He has correctly identified the accused Sanjay Balmiki in the Court who was working in their office as sweeper.
8. Arpan (PW24) This witness is the housekeeping supervisor with M/s.
Sumeet Facilities Pvt. Ltd. and has deposed as under:
1. That the accused Sanjay Balmiki (whom the witness has correctly identified in the Court) a resident of Haiderpur, Lohia Camp Jhuggi had been posted as a sweeper with NDPL and had joined the company on 03.05.2011.
2. That he had been employed on the guarantee of one Sonu who is also the house boy in the same organization and was put on duty at the NDPL Office w.e.f. 07.05.2011 as Safai Karamchari and he (witness) used to supervise his work.
3. That he personally used to go to the spot to supervise him (Sanjay) after every twothree days but was regularly making a telephone call to the duty officer at the NDPL office to inquire about his attendance.
4. That Sanjay used to mark his attendance in their office and was given an official dress comprising of dark green pant and striped shirt.
5. That Sanjay was on duty at NDPL office from 11.07.2011 to 13.07.2011 and he had personally gone to supervise/ check him in the NDPL office on 12.07.2011.
6. That on 12.07.2011 when he went for checking he noticed that Sanjay only wearing the shirt provided by the office but not the dark green pant and when asked about the reason for the same, Sanjay informed him that he had washed the pant which had not dried due St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 81 to which reason he could not wear the same.
7. That on 13.07.2011 he had received a call from Sh.
Bhag Chand Meena, employee of the NDPL at around 3:30 PM who told him that a foul smell was emanating from the office and he was directed to visit the office personally on which when he reached the site/NDPL office at about 4:305PM he found that Sanjay had already left from duty and was not present at the site after which he personally checked the office and cabins on all the floors.
8. That after he checked the stores, he came to switch gear room and there he found a dead body of a small girl child aged about 810 years, lying between the panel and the wall from where the foul smell was emanating on which he immediately informed Sh.
Bhag Chand Meena of the same.
9. That police had recorded his statement on 15.07.2011 and on 25.07.2011 he handed over the attendance register of their employees relating to the NDPL Pitampura Office to the Investigating Officer showing that Sanjay was on duty at NDPL Office, KU Block, Zone 508 Pitampura and his name is mentioned at serial No.10 of the attendance register which register bears his signatures at the end of every month.
10. That at the end of the month, he submit the attendance register in the accounts and pay department of their office.
He has proved the original attendance register which is Ex.PW24/A showing the name of accused Sanjay mentioned at point X. He has also proved the production cum seizure memo of the attendance register which is Ex.PW24/B bearing the signatures of their operational manager Yog Ram at point A.
9. Yog Ram (PW26) This witness is working as Manager Operations with M/s.
Sumeet Facilities Pvt. Ltd. and has deposed on the following lines:
1. That his duty is to manage the site, supervision of the staff, administrative control, marketing etc. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 82
2. That he had handed over the original attendance register pertaining to the employees and also handed over original Bio data, application form for employment, letter for employment, appointment letter, conditions of appointment, certified copy of the work order between NDPL and M/s Sumeet Facilities Pvt.
Ltd., computer generated copy of nominal role of the employees along with certificate U/S 65 B of the Evidence Act which were seized by the Investigating Officer vide production cum recovery memo Ex.PW24/B.
3. That the application of employment of Sanjay is Ex.PW26/A; letter of appointment to employee Sanjay is Ex.PW26/B; his appointment letter is Ex.PW26/C; Terms and conditions are Ex.PW26/D;
Copy of Bio Data of Sanjay Kumar is Ex.PW26/E (which is accompanied by his copy of election card and driving licence).
4. That one Sonu another employee in the housekeeping had stood guarantee of Sanjay and the copy of election card of Sonu is Ex.PW26/F; computer copy of the nominal roll showing the name of Sanjay at serial No. 21 which is Ex.PW26/G running into two pages and the certificate under Section 65 B of Evidence Act issued by Amit Kumar, Computer operator who had retrieved the nominal role is Ex.PW26/H.
5. That the purchase order/ agreement between NDPL and M/s. Sumeet Facilities Pvt. Ltd. is Ex.PW26/I running into 19 pages bearing the signatures of Sanjay Saxena regional Head at point A on behalf of M/s Sumeet Facilities Pvt. Ltd.
Witness has also correctly identified the accused Sanjay Balmiki as the same person posted in the office of NDPL as an outsourced employee.
10. Kuldeep Singh This witness was posted as a Security Personnel at NDPL (PW27) Office from Walson Security, Aya Nagar, Mehrauli who has deposed as under:
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 83
1. That on 14.07.2011 he was on duty at NDPL office, Z508, KU Block from 9AM till 9 PM and his duty is the field along with the NDPL staff who visits the various sites.
2. That on that day at about 4:30 PM when he reached the NDPL office he saw large amount of "tor phor"/ damage had been done in the office and on inquiry he came to know that public persons had protested being agitated on the rape cum murder of a small child which had been committed in the office of the NDPL.
3. That he was present in the office of the NDPL when ASI Raju Yadav and other police officials came there at about 9:00 PM along with the accused.
4. That he joined the police in investigations and in his presence the accused Sanjay Balmiki took them to the room containing the electric panel/ gear which was situated at the end of the corridor of ground floor and pointed out towards the said room as the same room where he had thrown the dead body of the girl, which pointing out memo of the room is Ex.PW27/A.
5. That the accused thereafter led them to the staircase and got recovered a Y shaped steel rod from under staircase with which he had killed the girl child.
6. That the rod was converted into a parcel and sealed the same and thereafter the accused took them to the staircase opposite the bathroom and from under the staircase he produced a polythene bag containing a pant of green color and a striped shirt and informed the Investigating Officer it was his official dress which he used to wear everyday and had stated that he had washed the clothes after the incident and thereafter hidden the same under the stair case and the pointing out memo and seizure memo of the steel rod and the clothes was prepared which is Ex.PW27/B.
7. That the pullandas were taken by the Investigating Officer and his statement was recorded by the Investigating Officer at the spot itself.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 84
He has correctly identified the accused Sanjay Balmiki in the Court as the person who had accompanied them and got the recoveries effected. The witness has correctly identified the "Y" shape steel rod as got recovered by the accused which is Ex.P1 and the cloth in which it was seized which is Ex.P2. It has been observed by the Court that the rod is approximately 23 feet and is a part of the operating machine in the shape of a "Y" shape handle. MEDICAL EVIDENCE
11. Dr. J.V. Kiran This witness has deposed that on 6.8.2011 he received an (PW16) application from Inspector Satyender Gosain seeking opinion on the weapon of offence which application is Ex.PW16/A and in this regard he also received a sealed packet sealed with the seals of SG containing Y shaped hollow steel rod. According to the witness, the long limb of the rod was hollow and measured 55.5 cms long with circumference of 8.5 cms; smaller limbs of the rod were solid, 7 cms long each and 7.5 cms circumference in the middle; design of arrows were present on the smaller limbs on both sides; the free ends of the small limbs showed a groove and the diameter of their free ends was 1.9 x 1.5 cms; the end of the longer limb which was away from the small limbs was 2.5 x 2.5 cm diameter and the end of the longer limb on the side where the smaller limbs were present was 2.7 x 2.7 cm diameter. He has proved that the injuries no. 1, 2 and 3 mentioned in the postmortem report are possible by the said weapon of offence which opinion is Ex.PW16/B. The witness has further deposed that the weapon was resealed with the seal of Dr. BSA, DEPTT. OF FM, DELHI GOVT. and handed over to the Investigating Officer along with the report.
The witness has identified the said 'Y' shaped steel rod in the Court which is Ex.P1. According to him, it was produced in the cloth parcel duly sealed and after cutting the same cloth opinion was given and thereafter the weapon of offence was again sealed in the said cloth which torn cloth is Ex.P2.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 85
12. Dr. Florence This witness has deposed that on 14.07.2011 he was posted Almeida (PW17) as CMO at BSA Hospital, Rohini and on that day patient Sanjay Kumar S/o Sh. Jagdish Balmiki aged 21 years, male was brought for medical examination at about 11:45 PM. According to him, on local examination no evidence of any fresh obvious external injury seen, Adam apple well developed, mustache present, good muscular built, scrotum well developed with normal sized bilateral testis and penis well developed. He has proved that in his opinion there is nothing to suggest that the examinee/ accused cannot perform sexual intercourse. The witness has also deposed that he collected following samples:
i. Blood samples in plain vial ii. Blood sample air dried on sterile gauze iii. Scalp hair plucked iv. Nail scrapping of both hands v. Plucked pubic hair vi. Smegma on slide from coronal scrapping vii. Brown coloured underwear Witness has proved that the patient Sanjay refused to give semen sample due to which reason he had given his advise to the Investigating Officer to follow up in the department of Forensic Medicine and the samples were sealed and handed over to HC Anand Swaroop. He has proved having prepared his detailed report which is Ex.PW17/A. He has correctly identified the accused Sanjay in the Court.
13. Dr. Vijay Dhankar This witness is the Specialist and HOD Forensic Medicine, (PW23) Dr. BSA hospital who has proved that on 14.7.2011 he conducted the postmortem on the body of one child 'U' D/o Shyam Paswan, aged about 8 years on the request of ASI Raju Yadav of Police Station Maurya Enclave. According to him, the deceased was allegedly found dead at NDPL Office Pitam Pura and the child was wearing a green frock and black underwear. Witness has further deposed that Nail beds and lips were cyanosed and decomposition St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 86 changes were present. He has proved that on external examination the following injuries were found on the body:
1. An area of skin of size 2 x 2 cm was missing on the left side of forehead with underlying depressed fracture of skull.
2. An area of skin of size 2.5 x 2 cm was missing on the middle of forehead with underlying depressed fracture of skull with pieces of bones missing.
3. An area of skin of size 3 x 2 cm was missing on the right side of forehead with underlying depressed fracture of skull with pieces of bones missing.
4. Laceration 1.5 x 1 cm present at outer end of right eyebrow.
5. Laceration 2 x 1 cm x bone deep, present 1cm below injury no. 4 mentioned above.
6. Laceration 3 x 1 cm muscle deep present on right side of face 3cm in front of right ear lobe.
7. Laceration 2 x 1 cm present on inner front of lower part of right side of neck placed 3 cm from midline.
8. Laceration 2 x 1 cm present on inner front of lower part of left side of neck placed 2 cm from midline.
9. Laceration 4 x 3 cm present on inner front of right side of chest placed 4 cm above and inner to right nipple.
10. Laceration 3 x 2 cm present on midline of upper third of front of chest.
11. Laceration 4 x 3 cm present on inner front of middle third of left side of chest.
12. Laceration 3 x 2 cm present on middle of front of chest.
13. Contusion 4 x 3 cm present on outer back of middle of left arm.
14. Contusion 3 x 2 cm present on upper third of back of left forearm on the outer aspect.
15. Abrasion 2 x 1 cm present on back of left hand at the base of thumb.
The witness has further proved that on internal examination of the Head - on reflection of the scalp St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 87 multiple foci of extravasation of blood was present in the area underlying the injuries on the frontal region; three depressed fractures were present; one measuring 3 x 2 cm and the other 2 x 2 cm each; Fissure fracture was present of the left temporal bone; Brain was partially liquified and showed reddish green discoloration. On examination of Pelvis hymen was torn at multiple places and only marginal mucosal tags were present. Internal organs were soft, flabby and discoloration was present. According to the witness, after postmortem examination he gave his opinion that Death was due to craniocerebral damage consequent to blunt force trauma to the head caused via injury no. 1, 2 and 3 mentioned above. The injury no. 1, 2 and 3, individually as well as combined together along with injury no. 4 to 14, are sufficient to cause death in the ordinary course of nature. All injuries were antemortem in nature.
Witness has further proved that after postmortem the following exhibits which were taken from the body of the deceased by him which were sealed with the seal of the department and handed over to the Investigating Officer:
1. Nails
2. Clothes
3. Blood on gauze
4. Teeth
5. Two vaginal swabs
6. One anal swab
7. One oral swab
8. Maggots He has proved his detailed postmortem report which is Ex.PW23/A running into six pages. He has explained that the time of death was approximately around three days and that the internal injury no.2 (Pelvis) showing hymen was torn at multiple places and only marginal mucosal tags were present, establishes the sexual assault on the child prior to her death.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 88 FORENSIC EVIDENCE:
14. Ms. Manisha This witness has proved that on 19.08.2011 she received Upadhyaya four sealed parcels, first parcel bearing the seal of SD, the (PW18) Senior two parcels bearing Dr. BSA, DEPT OF FM DELHI Scientific Officer GOVERNMENT and fourth parcel bearing seal of RY.
(Biology), FSL According to her after examining the same she gave her report Ex.PX2 (not disputed by the accused) according to which blood was detected on exhibits 1(a) (Gauze cloth piece containing the blood sample of the accused), 1(b) (blood sample), 1(d) (scrapping material), 2 (nail clippings along with skin/ fleshy material), 3(a) (baby frock), 3(b) (baby underwear) and 4 (hair) and human semen was detected on exhibit 1g (underwear). She has also proved having given the biological report which is Ex.PX3 (not disputed by the accused).
15. Ms. Shashi Bala This witness has proved that on 24.08.2011 she received (PW19) Senior seven sealed forensic samples from SHO Maurya Enclave Scientific Officer and one sealed parcel from Biological Division. According (Biology), FSL, to her, five parcels were bearing the seal of Dr. BSA, DEPT Delhi OF FM DELHI GOVT, one parcel was bearing seal of SG, one parcel was bearing the seal of RY and the parcel received from the biological division was bearing the seal of MU FSL Delhi. [This parcel containing the blood sample of the accused had first gone to Biology Division, FSL Delhi where it was opened by Ms. Manisha Upadhayay Senior Scientific Officer (Biology) who after examining the same, resealed the same with the seal of MU FSL Delhi and sent the parcel to DNA Division for examination]. She has proved that after examination of samples she gave her report which is Ex.PX1.
She has further deposed that initially she conducted the biological examination of the samples and the blood was detected exhibits number No.1,4,6 and 1(a) and human semen was detected on Ex.5 thereafter exhibit No.1, 4, 5(b), 6 and 1(a) were subjected to DNA isolation. According to the witness DNA was isolated from the sources of Ex.5(b) and 1(a) but could not be isolated from the exhibit 1,4 and St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 89
6. She has further deposed that the STR analysis were used for each of the sample and data was thereafter analysed by her by using genoscan and genotype software.
Conclusion: Witness has proved the result of analysis according to which the alleles from the source of exhibit 5b i.e. the cotton wool swab of the victim are accounted in the alleles from the source of Ex.1(a) (gauze cloth piece of the accused). She has also proved that after conducting the DNA profiling/STR analysis of the Ex.5(b) and 1(a) with the source of the Ex.1(a) i.e. gauze cloth piece of the accused. She has concluded that the accused is responsible for the biological stains i.e. seminal stains on the Ex.5(b) (cotton wool swab of the victim).
POLICE/ OFFICIAL WITNESSES (Proving investigations)
16. SI Mahesh Kumar He is a formal witness being the Draftsman who has (PW1) proved the scaled site plan which is Ex.PW1/A.
17. Ct. Dalbir (PW2) He is the photographer who has proved the photographs which are Ex.PW2/A1 to Ex.PW2/A19 and the negatives of the photographs which are collectively Ex.PW2/B.
18. Ct. Satish (PW3) He is a formal witness who has proved that on 22.7.2011 on the directions of Inspector Satyender Gosain he went to BSA Hospital mortuary where doctor handed over to him total nine exhibits relating to the deceased which he in turn handed over to Inspector Satyender Gosain who seized the same vide memo Ex.PW3/A.
19. Ct. Rajbir (PW4) He is a formal witness who has proved that on 12.7.2011 at about 9:10 AM Duty Officer W/HC Usha gave him an original Tehrir along with FIR to deliver to ASI Raju Yadav and accordingly he delivered the same to ASI Raju Yadav at KU Block Park, Pitampura. According to him, ASI Raju Yadav recorded the statement of the complainant at 10:00 AM and he remained with ASI Raju Yadav during the search of missing girl.
20. HC Anand This witness has proved having got conducted the medical Swaroop(PW5) examination of the accused Sanjay Kumar and handed over to him a sealed box containing exhibits/ samples, sample St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 90 seal and MLC of accused Sanjay which he in turn produced before the Investigating Officer who seized the same vide memo Ex.PW5/A.
21. W/HC Usha She is the Duty Officer who has proved having recorded (PW6) the FIR copy of which is Ex.PW6/A and her endorsement on the rukka which is Ex.PW6/B.
22. SI Devender He is the Crime Team Incharge who has proved the Crime (PW7) Team Report which is Ex.PW7/A which he handed over to ASI Raju Yadav.
23. Ct. Sandeep This witness has proved that on 24.8.2011 he took seven Kumar (PW8) sealed pullandas and two sample seals from the MHCM and deposited the same in the FSL Rohini.
24. Ct. Bijender He has proved that on 19.8.2011 on the directions of (PW9) Inspector Satyender Gosain he received four exhibits and one sample seal duly sealed vide RC No. 88/21/11 and seven exhibits and two sample seals duly sealed vide RC No. 89/21/11 from the MHCM and deposited the four exhibits and sample seals in FSL Rohini. He has further proved that on 23.8.2011 he took an exhibit along with a request letter and went to Mortuary, BSA Hospital for issue of sample seal where Dr. J.V. Kiran handed over to him a sealed envelope which he (the witness) handed over to the Investigating Officer who seized the same.
25. W/Ct. Archna This witness has proved that on 13.7.2011 while posted in (PW10) PCR, PHQ information was received from mobile no.
9818100432 regarding a dead body of a small girl aged about 10 years lying in KU Block, Ramlila Ground, NDPL Sub Station Pitampura, on which she completed the PCR form which is Ex.PW10/A and passed on the information.
26. HC Hoshiyar He has proved that on 13.7.2011 while working as Duty Singh (PW11) Officer at Police Station Maurya Enclave at about 6:15 PM the Wireless Operator informed him that information was received that a dead body of a girl aged about 10 years was lying in NDPL sub station pursuant to which St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 91 information he recorded vide DD No. 31A which is Ex.PW11/A.
27. HC Radhey Kishan He is the MHCM who has proved the various entries made (PW12) in Register No. 19 and 21 which are Ex.PW12/A;
Ex.PW12/B; Ex.PW12/C; Ex.PW12/D; Ex.PW12/E;
Ex.PW12/F; Ex.PW12/F1; Ex.PW12/G; Ex.PW12/H and Ex.PW12/H1.
28. Ct. Ram Chander This witness has joined the investigations along with the (PW28) initial Investigating Officer ASI Raju Yadav and has proved the various proceedings conducted by ASI Raju Yadav.
29. Ct. Sohanbir He has joined the investigations along with Inspector (PW29) Satyender Gosian and ASI Raju Yadav and has proved the following documents:
Ex.PW29/A Arrest memo of accused Sanjay
Ex.PW29/B Personal search of the accused Sanjay
Ex.PW29/C Disclosure statement of accused Sanjay
Ex.PW29/D Seizure memo of cartridges
He has correctly identified the accused Sanjay Kumar Valmiki in the Court and also identified the case property i.e. one Y shaped steel rod as the same rod which was got recovered by the accused Sanjay Kumar Valmiki, which is Ex.P1; cloth in which it was sealed which is Ex.P2; polythene containing one pant and shirt recovered at the instance of accused Sanjay and the torn cloth used by the Investigating officer, which polythene is Ex.P3, Pant is Ex.P4, Shirt is Ex.P5 and the torn cloth is Ex.P6.
30. ASI Raju Yadav He is the initial Investigating Officer and apart from the (PW30) documents proved by various witness, he has proved the following documents:
Ex.PW30/A Endorsement on the statement
Ex.PW30/B Site Plan
Ex.PW30/C Inquest Form
Ex.PW30/D Request for postmortem
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 92
Ex.PW30/E Brief facts
The witness has correctly identified the accused Sanjay Kumar Valmiki in the Court and has also correctly identified the case property i.e. Y shaped steel rod as the same rod which was got recovered by the accused Sanjay Kumar Valmiki which rod is Ex.P1; the cloth in which it was sealed which is Ex.P2; one polythene with one green pant and one striped shirt and one torn cloth as the same polythene, recovered at the instance of accused Sanjay and the torn cloth bearing the seal of SG was used by the Investigating officer which polythene is Ex.P3, Pant is Ex.P4, Shirt is Ex.P5 and the torn cloth is Ex.P6.
31. Inspector He is the subsequent Investigating Officer of this case and Satyender Gosain apart from the documents proved by the various witnesses, (PW31) he has proved the following documents:
Ex.PW31/A Application for medical examination of accused Sanjay Ex.PW31/B Notice U/s. 91 Cr.P.C. to Yog Ram Ex.PW31/C Seizure memo of one sample seal (75) Coming now to the microscopic evaluation of the evidence against the accused.
Spot inspection by the Court:
(76) This court had conducted the spot inspection in terms of the provisions of Section 310 Code of Criminal Procedure on 2.5.2012. The observations made by the Court are enlisted as under:
➢ The park where the deceased child was last seen by her mother after which she came out by saying that she was going to have water, is hardly approximately 120 steps from the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 93 main road on which the NDPL office is situated and is hardly 6070 steps from the temple situated inside the NDPL office on the back side.
➢ There are two entries in the NDPL complex one on the side of passage at the side of the temple and other on the main road.
➢ It was observed that the gate opening on the side passage leading to the park normally remains closed and it is only the gate on the main road which remains open throughout. ➢ It was observed that a water cooler was installed near the complaint window on the front side where the complaints (of public) are noted down.
➢ It was further observed that there was a school adjoining the NDPL building on one side separated by a passage and another school on the back side with a boundary common to the NDPL complex. On both sides of the NDPL building and in front of the complex there are roads/ passage. ➢ It was observed that the switch gear room where the body of the child was found is towards the end of the building separated from rest of the building by a door installed at the end of the corridor which door normally remains closed (but not locked) and the visibility through the same is limited. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 94 ➢ It was also observed that the wire mesh divided the temple area from the switch gear room on the back side of the complex where there is a temple and on the Verandah in front of the temple, a fan is installed where the child Saroj was sitting at the time of incident. The visibility from this spot through the wire mesh towards the switch gear room is limited and it is not possible either from the wire mesh installed between the Verandah and Switch Gear Room to see the area around the panels where the body of the child was discovered. ➢ It was observed that there are trenches under the panels/ transformers of around one and a half to two feet deep with cables leading to the panels/ transformers. ➢ It was observed that it would not possible for anybody sitting on the complaint room or inside the rooms on the front side including the room of Bhag Chand Meena, room of Shiv Kumar or for anybody on the outside of the building to hear the cries coming from backside of the building which is completely separated by a door from the main portion/ building/ rooms where the official business takes place. ➢ It was also observed by the Court that the surrounding building which is a school is at a distance separated from this NDPL building by a gali/ passage. It is perhaps for this reason that the stink/ foul smell which spread in the NDPL building St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 95 was not noticed by the users of the adjoining building. On the one side of the Switch Gear Room (where the dead body was found lying) there is a vacant passage leading to the school and on the other side of the building, there is another passage leading to the park from where the child had come and it is for this reason that the foul smell which started emanating from the dead body on the third day, perhaps did not reach the residents of the area and also went unnoticed in the school. Ocular Evidence/ Last Seen evidence:
(77) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where circumstances, medical, forensic and other evidence corroborates and connects with the count given by the eye witness, there is no reason to reject his testimony. (78) Where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 96 Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story;
consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(79) Applying the settled principles of law to the facts of the present case, it is evident that the case of the prosecution is that the mother of the deceased namely Smt. Sunita used to work in the Kothies (as part time maid) and had left her children (including the deceased) in the park at KU Block. The prosecutrix (deceased) 'U' was the eldest aged about 89 years followed by Bholu Kumari aged about 7 years, Shivani aged 4 years St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 97 and Ankush 1 ½ years. On 11.7.2011 while Bholu was in the village, she left her three other children at KU Block Park behind NDPL Office and went to her work. When she returned at about 4:00 PM she could not find the prosecutrix and her younger daughter Shivani informed her that 'U' wanted to drink water and left her and younger brother in the park after which they had seen her going into the NDPL Office. Smt. Sunita (PW21) has in her testimony specifically deposed that while she was going to the Kothies, her deceased daughter 'U' told her that she was going to drink water stating "mammi main pani peenae ja rahi hun". These were the last words that the child had spoken to her mother and the last time when the mother of the child (PW21 Smt. Sunita) and her younger brother and sister had seen the deceased alive.
(80) Smt. Sunita (PW21) in her testimony does not state that she had seen the child going inside the NDPL office but it is evident that her body was found in the said office. It may be noted that the park where Sunita had left her children and from where the deceased child had gone in search of water is just behind the NDPL complex. It was observed by the Court during the spot inspection that the gate of this park from where the child came out is hardly around 120 steps from the main road/ gate of the NDPL office from where the child entered inside the complex and it hardly takes less than a minute to reach the said place. It is also established that a water cooler is installed inside the NDPL complex where cold water is available and it is normal for public persons, particularly children, to enter St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 98 the complex and take water from the said cooler. It is also observed that there is a school just adjoining the NDPL building on one side on the main road and also on the back side of the NDPL building adjoining the park and hence presence of children wanting to have cold water from the cooler inside the complex is a usual sight. Her testimony finds due corroboration from the testimony of the child witness Master Saroj (PW25) who has deposed that he had seen the deceased child talking to the accused Sanjay Valmiki at the NDPL complex while he was going to purchase for the tea stall from the Mother Dairy.
(81) The most material witness in this case is the child witness Saroj (PW25) aged about 11 years, who is the nephew of Dalip Paswan (who was running a tea stall outside the NDPL office) and had seen Sanjay Sweeper in the NDPL Office standing at the NDPL Office along with a small girl aged about 810 years when he was going to fetch milk for the tea stall. After the child Saroj came back from the Mother Dairy and handed over the milk to his brother, being extremely hot he went to sit under the fan installed in the temple, which temple is inside the NDPL complex, on the backside adjoining the switch gear room where the incident had taken place. While Saroj (PW25) was sitting there in the Verandah which is behind the switch gear room on the backside and adjoining the temple (as observed during the spot inspection), he heard the screams and cries of a child coming from inside the back side room (i.e. switch gear room). On this Saroj peeped inside the room through the wire mesh (which wire mesh St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 99 separates the said portion from the temple and as observed during the spot inspection from where it is possible to see inside the switch gear room to a limited extent) where he (Saroj) saw Sanjay whom he questioned as to who was with him. On this the accused Sanjay mislead Saroj by telling him that it was his younger brother and thereafter rebuked him and asked him to run away. The relevant portion of the statement of this child witness Saroj is reproduced as under:
"....... I am resident of the aforementioned Jhuggi and I am a student of class three at Prathmik Vidhayala EU Block, Pitampura, Delhi. My chacha Daleep Paswan is running a tea shop, at outside the NDPL office where I often go to help him. On 11.07.2011 I was at the tea stall of my chacha, helping my cousin brother (i.e. son of my chacha) namely Deepak. On that day on the asking of my brother Deepak I had gone to mother dairy KU Block for purchasing Milk. When I was going to purchase milk, I saw Sanjay (correctly identified by the child in the court) who is the sweeper in the NDPL office was standing at the NDPL office along with a small girl aged about 810 years. Thereafter I went to the mother dairy and after I came back after purchasing milk which I give to my cousin brother Deepak I went to the temple inside the NDPL complex to sit under the fan in the temple as it was very hot when I heard screams (bache ke cheekne aur rone ke awaze) coming from NDPL Office. I went towards the office and started peeping inside the wire mesh (jali) and I saw Sanjay inside the room and I asked him "aap ke sath main kaun hai, usne kaha mere sath mera bhai hai" and told me "bhag ja yaha se". Thereafter I went to the tea stall where my St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 100 brother was sitting.
On 13.07.2011 I came to know that a dead body of a small girl was found in the NDPL office and I saw the dead body of the child and found it was the same girl who was standing with Sanjay when I was going to fetch milk. I saw the police making inquiries from my chacha and my cousin brother and therefore on 14.07.2011 I told my chacha Daleep Paswan about seeing the small girl whose body was found with Sanjay and also told him that I had heard screams coming from inside the office on which my chacha took me to the police station where I informed the police about what I had seen and my statement was recorded....."
(82) I have gone through the above testimony of the child witness Master Saroj (PW25) aged about 1011 years and testing the same on the touchstone of truthfulness, credibility and probability, I may observe firstly there is nothing on record to suggest that there existed any history of dispute/ hostility between the family of the child witness/ child and the accused Sanjay Kumar Valmiki. Rather, the evidence on record suggests that Dalip Paswan the uncle/ chacha of the child witness Master Saroj who is running a tea stall outside the complex, was known to Sanjay Kumar Valmiki only in professional capacity since he had seen Sanjay Kumar Valmiki a Sweeper with the NDPL. It is only natural that Dalip Paswan would have known him as such because he was running a tea stall outside the complex and catered to the requirements of the employes of the NDPL and the other persons visiting the complex and Master Saroj his nephew St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 101 often came to his tea stall to play/ help him. Secondly it is evident from the record that Dalip Paswan is neither related nor in any manner closely associated with the family of the deceased child and her father Shyam Paswan (it is a coincidence that both share the same surname 'Paswan' but Dalip Paswan has explained that they do not even hail from the same area i.e. Dalip Paswan being from Darbhanga whereas Shyam Paswan belongs to Samastipur, Bihar). It is therefore evident that Dalip Paswan and Saroj have no personal interest in the matter. Thirdly it is evident from the deposition of Master Saroj that he is consistent and has supported the earlier version given by him to the police and has not only correctly identified the accused but also very succinctly and explicitly explained the details of the events as they had transpired. The child witness Saroj was subjected to a sustained crossexamination and has stuck to his version there being no material contradictions. Fourthly Dalip Paswan the tea vendor has explained that he is residing in a joint family and his nephew Saroj resides in the same house. It is also evident that Dalip has a young son Deepak virtually of the same age as that of Master Saroj and hence there is a little reason to doubt the version given by the witnesses that Saroj often came to the tea stall to play. In fact it is evident from the testimony of both Dalip Paswan and Saroj that on the date of the incident i.e. 11.7.2011 while Dalip Paswan had gone out in the afternoon it was the child Deepak (son of Dalip Paswan) who was managing the tea stall and the child Master Saroj was helping him and it was only when Saroj was going to fetch milk for the tea stall that he saw St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 102 Sanjay Kumar Valmiki along with the deceased child. His presence at the spot is natural and cannot be doubted. Lastly the argument of the Ld. Amicus Curiae that there was a delay of three days by the child witness Saroj in disclosing about the incident, I may observe that this arguments is factually incorrect since the body of the child was first discovered at about 5:10 - 5:15 PM on 13.7.2011 and prior to the same nobody was aware about her. In fact for the first time Master Saroj had seen the dead body was only in the late evening/ night hours when the police had come to the spot and had taken out the body after which there were making inquiries. This child informed about having seen the deceased child talking to Sanjay Kumar Valmiki to his uncle on the very next day (14.7.2011) in the morning when his uncle Dalip Paswan took the child to the police station and informed them about what the child had seen. There is nothing abnormal in his behaviour. Saroj (PW25) is a small child aged about 10 to 11 years and having seen the dead body of the deceased child (at night hours around 8:00 PM) whom he had seen talking to Sanjay, the likelihood of the child getting perplexed and confused or not reacting and disclosing anything to anybody out of fear, shock or disbelieve cannot be ruled out. It is only later that when the child was composed that he actually could absorbed what had transpired and informed his uncle about the aforesaid who immediately took him to the police station and informed the police about what the child had told him and it was only then that for the first time the needle of suspicion pointed towards the involvement of accused Sanjay Kumar Valmiki. It is St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 103 further borne out from the evidence that on the same day there were large scale public protests at the office of the NDPL whose officials had to face public wrath on account of the incident. The record (attendance register) reveals that Sanjay Kumar Valmiki did not report for duty. Search was made for him and it was later in the evening that a secret information was received on which he was apprehended and arrested pursuant to which he got recovered the 'Y' shaped rod as the weapon of offence and his clothes which he was wearing on the date of the incident. It is writ large that Saroj is a small child aged about 10 to 11 years and on seeing a dead body in a state of decomposition even an adult would get disturbed what to talk about a child. The delay if any is not such that it would give rise to any suspicion. Even otherwise, the DNA fingerprinting report leaves little reason to doubt the version given by the child witness. In view of the above I find the testimony of the child witness Master Saroj (PW25) truthful, credible, reliable and trustworthy on whose deposition this Court can safely place its reliance, also because it finds due corroboration and support from the medical, forensic and circumstantial evidence.
(83) After analysis of the testimony of the Child witness Master Saroj, the aspects which emerge from the same are as under:
➢ That the child witness (Master Saroj) used to help his chacha/ uncle Dalip Paswan at the tea stall outside the NPDL Office. (It was observed by this Court during the spot inspection carried out on 2.5.2012 under Section 310 Code of Criminal Procedure, that the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 104 tea stall is outside the NDPL Office next to the wall and hardly 20 steps away from the gate of NDPL Office and anybody coming and standing at the gate or entering/ leaving the office could be clearly visible without any obstruction).
➢ That on the asking of his cousin (namely Deepak) Saroj had gone to Mother Dairy at KU Block and when he was going he saw the accused Sanjay Kumar who was the Sweeper in the NDPL Office standing along with a small girl aged 8 to 10 years. ➢ That when he returned after purchasing the milk, he handed over the milk to his cousin brother Deepak and thereafter went inside the NDPL Office to the temple situated inside the complex on the back side to sit under the fan as it was very hot outside. (This Court has observed during the spot inspection that this temple is presence inside the NDPL complex itself with a large verandah with fans installed in the Verandah which is just adjoining the switch gear room with the wire mesh partition separating the said portion on the back side of the complex. A portion of the temple at the end of the passage inside the NDPL complex can be seen in photograph Ex.PW2/A19).
➢ That while Saroj was sitting under the fan near the temple, he heard the screams and cries of a child (bache ke cheekne aur rone ke awaze) coming from inside the NDPL Office on which he peeped inside the room through wire mesh when he saw the accused Sanjay St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 105 Kumar Valmiki inside the said room and called out to him. [During the spot visit by the Court it was observed that from the spot where the child was sitting under the fan near the wire mesh, a part of the room where the transformers/ switch gears/ panels are installed (switch gear room) is visible and if there is someone inside the said portion it is easy to hear the voices from the place where the fan is installed in the Verandah of the temple where the child was sitting and also to see inside the said room from where a small portion of the room is visible.] ➢ That on hearing the cries of a child, Saroj (child witness) asked accused Sanjay as to who was there with him on which the accused Sanjay told him that his brother was with him and told the child (Saroj) to run away (aap ke sath main kaun hai, usne kaha mere sath mera bhai hai and told him "bhag ja yaha se"). ➢ That the child Saroj thereafter came back to the tea stall outside where his brother was sitting.
➢ That on 13.7.2011 he came to know that dead body of a small girl was found inside the NDPL Office and he saw the dead body and found it of the same girl who was standing with Sanjay when he was going to fetch milk.
➢ That he saw the police making inquiries from his chacha Dalip Paswan (PW14) and his cousin Deepak and therefore on 14.7.2011 he told his chacha Dalip Paswan about seeing the small girl St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 106 with Sanjay (aspect finds corroboration from the testimony of Dalip Paswan).
➢ That he also told his chacha that he had heard the screams coming from inside the office on which his chacha/ uncle took him to the police station (aspect finds corroboration from the testimony of Dalip Paswan).
(84) The above testimony of child witness Saroj finds due corroboration from the testimony of Dalip Paswan (PW14) whom the child witness had first disclosed about the incident. The relevant portion of his testimony is as under:
"....... I am residing on the aforesaid address along with my family. I am running a tea stall outside the NDPL office patri where I put my rehri. My son Deepak Paswan aged 1213 years also helps me in the said business and my nephew Saroj Paswan, Son of Mangal Paswan, aged about 10 years who is studying in class 3 comes to shop for playing. My nephew studied in the MCD School EU Block Pitampura.
On 11.07.2011 I had to go somewhere, my son Deepak was sitting on my tea stall. On 13.07.2011 a dead body of a small girl aged about 89 years was found in the NDPL office and there was a big hungama and inquiries were made from me by the staff of the NDPL and police in this regard. On 14.07.2011 my nephew Saroj told me that the girl whose dead body he had seen at the NDPL gate was of the same girl whom he had seen with Sanjay who was talking to her at the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 107 gate of the NDPL office about two days before. He identified the dead body of the girl as the same girl with whom Sanjay was talking. The accused before the court (correctly identified) is working in the NDPL office as sweeper. Saroj also informed me that he had gone to mother diary to purchase milk and while he was coming back, he has seen the small girl speaking to Sanjay at the gate of the NDPL. He further told me that it was very hot and therefore after he purchased the milk and gave it to my son, he went and sat under the fan installed in the temple inside the NDPL office. He also informed me that while he was sitting in the temple under the fan, he heard the screems (chikhane ki awaj sunai di) of some child from inside the power house, on which he peeped inside the power house from the jali when he found Sanjay there. He asked Sanjay who was there on which Sanjay told him to run away as there was no body (usne Sanjay se poocha waha kaun hai, to Sanjay ne usko kaha koi nahi hai, bhag yaha se). Saroj was the child and therefore he ran away. When Saroj informed me about all this, I brought him to the police station where I produced him before ASI Raju Yadav who recorded my statement and also the statement of Saroj....."
(85) In fact Dalip Paswan (PW14) has identified the accused Sanjay Kumar in the Court whom he knew as Sanjay Kumar was working in the NDPL Office as Sweeper. I may observe that Dalip Paswan who is running a tea stall outside the NDPL office and his nephew Saroj (PW25) who is also helping him in the said tea stall, are the best witnesses who would have been available in the area in ordinary course as Dalip Paswan caters to the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 108 requirement of tea of the employees of the NDPL and other visitors to the office and it is for this reason that they are aware of the identity of the various employees including accused Sanjay Kumar. (86) The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person 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).
(87) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992]. (88) In the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 109 account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
(89) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 110 upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
(90) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and
place of last seen.
(v) Reasonableness of the explanation offered by the
accused.
(91) Now applying the settled principles of law to the facts of the
present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Sanjay Kumar is trustworthy or not. If yes, the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 111 effect thereto.
(92) It is evident that the deceased child was last seen alive first by her mother at around 3:00 PM on 11.7.2011 while she was leaving for her work and left the children behind in the park behind the NDPL office and while leaving the child followed her saying that she was going to have water ("mammi main pani peenae ja rahi hun"). Soon thereafter virtuarlly around the same time the child was also seen alive by the child witness Master Saroj in the company of the accused Sanjay Kumar when the child witness Saroj was going to purchase milk for the tea stall from Mother Dairy. Thereafter when Master Saroj came back after purchasing milk which he gave to his brother, the child came and sat in the Verandah outside the temple having a fan which portion is adjoining the Switch Gear Room (where the body of the child was found) and while he was sitting there, he heard the cries and screams of a child on which he peeped inside from the wire mesh portion which separates the Verandah from the electric/ Switch Gear Room from the back side from where he could notice the accused Sanjay Kumar Valmiki (Sweeper in the complex) inside the said room and on seeing him (Sanjay Kumar) the child inquired as to who was with him on which Sanjay Kumar mislead the child by saying that it was his brother and thereafter chided him to run away (aap ke sath main kaun hai, usne kaha mere sath mera bhai hai.... bhag ja yaha se). It is this which connects the accused Sanjay Kumar Valmiki with the offence. His presence at the spot where the crime had been committed stands established from the testimony St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 112 of Master Saroj (PW25) which coincides with the time when the child Master Saroj had heard the screams and cries coming from the Switch Gear Room and had made specific query from Sanjay Kumar. In his statement under Section 313 Code of Criminal Procedure the accused Sanjay Kumar has denied the said allegations and no explanation is forthcoming. The presence of the accused Sanjay Kumar inside the complex is natural and expected. It stands established from his employment details and attendance record that he (Sanjay Kumar) was an outsourced GroupIV employee who was posted at the NDPL Office and was available there on 11.7.2011, 12.7.2011 and also on 13.7.2011. It is also established from the said record which finds due corroboration from the testimonies of Shiv Kumar and Bhag Chand that his duty hours were from 8:00 AM to 4:00 PM and hence his presence at the spot at the time of incident cannot be doubted. (93) Further, it is evident from the postmortem report Ex.PW23/A that the postmortem examination was conducted on 14.7.2011 at 1:15 PM and the time since death was three days thereby establishing that the death of the deceased would have occurred on 11.7.2011 in the afternoon hours which coincides with the oral testimonies of Smt. Sunita (PW21) and Master Saroj (PW25) who had last seen the child alive around 3:00 PM. (94) I may note, that the body of the deceased child was recovered from the same room on the backside of the complex where the child Master Saroj had seen him when the child tried to peep inside this room through the wire mesh and on query Sanjay Kumar mislead him by saying that it St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 113 was his brother with him. Why was it that Sanjay mislead the child Master Saroj and thereafter chided him and asked him to run away. This is something which the accused should have explained which he did not do and hence it liable to be read against him.
(95) In view of the above I hereby hold that in the instant case there is a proximity between the last seen and the time of death of the deceased in as much as the deceased died on the afternoon hours of 11.7.2011 she was last seen in the company of accused Sanjay Kumar and the accused Sanjay Kumar has failed to explain when he parted company with the deceased child. In view of the above, I hereby hold that the fact that the deceased 'U' was last seen alive in the company of the accused Sanjay Kumar and further that Sanjay Kumar was seen in the same room when Master Saroj heard the cries of the child and went near the spot to inquire (by peeping through the wire mesh) on which Sanjay Kumar valmiki mislead Master Saroj stating that it was his brother with him and thereafter chided him to run away and thereafter the dead body of the child was discovered in the same room, which is highly determinative of the guilt of the accused Sanjay Kumar. Presence of the accused Sanjay Kumar at the spot on the date of incident:
(96) The case of the prosecution is that the accused Sanjay Kumar Valmiki was an outsourced employee who was posted at the office of NDPL at KU Block, Pitampura, Delhi. In this regard, the testimonies of Arpan (PW24) Housekeeping Supervisor and Yog Ram (PW26) Manager St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 114 Operations with M/s. Sumeet Facilities Pvt. Ltd. are relevant. PW26 Yog Ram has proved the application of employment in the name of Sanjay which is Ex.PW26/A; letter of appointment to Sanjay which is Ex.PW26/B;
appointment letter which is Ex.PW26/C; Terms and conditions which are Ex.PW26/D; copy of Bio Data of accused Sanjay Kumar which is Ex.PW26/E along with the copy of election card and driving licence of Sanjay; copy of election card of Sonu, another employee in the housekeeping who had stood guarantee of Sanjay, which is Ex.PW26/F; computer copy of the nominal roll showing the name of Sanjay at serial No. 21 which is Ex.PW26/G running into two pages and the certificate U/S 65 B issued by Amit Kumar, Computer operator who had retrieved the nominal role is Ex.PW26/H. He has further proved the purchase order/ agreement between NDPL and M/s. Sumeet Facilities Pvt. Ltd. which is Ex.PW26/I bearing the signatures of Regional Heard Sh. Sanjay Saxena. (97) The accused in his statement under Section 313 Code of Criminal Procedure has denied that he was employed and posted in the office of NDPL on the date of the incident, yet he has not led any evidence to prove the same. The aforesaid documentary evidence establishes that it was the employee of outsourced agency M/s. Sumeet Facilities namely Sanjay Kumar (accused) who was posted at the NDPL Office as Sweeper and was responsible for its cleaning.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 115 (98) PW24 Arpan who is the Housekeeping Supervisor with M/s. Sumeet Facilities has proved the original attendance register which is Ex.PW24/A showing the name of accused Sanjay Kumar at point X and also the production cum seizure memo which is Ex.PW24/B bearing his own signatures and also the signatures of their operational manager Yog Ram. This witness has proved that on the date of incident i.e. 11.7.2011 to 13.7.2011 the accused Sanjay Kumar was on duty at NDPL Office and he had personally supervised him in the office on 12.7.2011 when he came for checking. He has further proved that on 13.7.2011 he received a call from Bhag Chand Meena an employee of NDPL at around 3:30 PM who told him that a foul smell was coming from the office and he should visit the office personally on which he (Arpan) reached the NDPL office at about 4:305PM he found that the accused Sanjay had already left the duty. Both these witnesses i.e. Arpan (PW24) and Yog Ram (PW26) have correctly identified the accused Sanjay Kumar as the person who was employed at NDPL office and the employees of the NDPL namely Shiv Kumar and Bhag Chand corroborate the above testimonies of Arpan and Yog Ram. There is no reason why Shiv Kumar and Bhag Chand would have falsely implicated the accused by claiming that he was the Sweeper posted in their office. Hence, I do not find any merit in the defence raised by the accused that he was not employed as a Sweeper in the NDPL office. The testimonies of Arpan (PW24) and Yog Ram (PW26) coupled with the documentary record pertaining to the employment and posting of the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 116 accused Sanjay at the NDPL Office finds due corroboration from the oral testimonies of employees of NDPL i.e. Shiv Kumar (PW20) and Bhag Chand (PW22) and conclusively establishes the identity of the accused Sanjay Kumar as the person who was employed with M/s. Sumeet Facilities as Sweeper and posted at NDPL Office, KU Block Pitampura and his presence from 11.7.2011 to 13.7.2011.
Arrest of the accused Sanjay Kumar and recovery of weapon of offence and clothes of the accused:
(99) The case of the prosecution is that on 14.7.2011 pursuant to a secret information the accused Sanjay Kumar Valmiki was arrested from near District Park, Haiderpur Canal, Pitampura. On sustained interrogation the accused disclosed having committed rape and murder of the victim and pursuant to his disclosure statement Ex.PW29/C he got recovered the weapon of offence i.e. Y shaped steel rod and his clothes which he was wearing at the time of the incident, which were seized vide memo Ex.PW27/B. (100) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 117 confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(101) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
i. Anything, state of things, or relation of things, or capable of being perceived by the senses, ii. Any mental condition of which any person is conscious.
(102) It further provides five illustrations as to what would constitute a fact which are as under:
(a) That there are certain objects arranged in a certain
order in a certain place, is a fact
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain
intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 118 (103) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (104) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 119 (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 120 setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(105) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 121 this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 122 High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(106) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(107) In the said case the Hon'ble Supreme Court further went to explain that:
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 123
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(108) Coming now to the facts of the present case, I may note that as per the evidence on record the incident had taken place on 11.7.2011 between 3:00 to 4:00 PM and on 12.7.2011 the father of the child had made a complaint to the police and search of the child was made. On 13.7.2011 it was in the afternoon that a stink/ foul smell was noticed in the office of the NDPL which was increasing and a search with regard to the source of stink was made when Sanjay Kumar Valmiki left the complex and did not return St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 124 despite directions of Bhag Chand an employee of NDPL. At around 4:30 PM on 13.7.2011 Arpan the Supervisor of M/s. Sumeet Facilities Pvt. Ltd. which had outsourced Sanjay Kumar Valmiki and posted him at the NDPL office and had been called to the NDPL office, reached there and made a search for the source of foul smell. It was between 5:10 - 5:15 PM that he discovered the body of the child at the corner of the Switch Gear Room in the trench between the panel and the wall on which he informed Bhag Chand ZO(A) who in turn informed Shiv Kumar ZO both employes of the NDPL. After Shiv Kumar returned to the office he made a PCR call and it was at about 6:15 PM that vide DD No. 31A an information regarding the discovery of the dead body of the child was received at Police Station Maurya Enclave on which the police reached the spot at about 6:30 PM. The father of the child namely Shyam Paswan was thereafter called to the spot and it was at around 7:00 PM that he identified the dead body as that of his missing child 'U'. Information was given to the Crime Team at around 6:55 PM who reached the spot within ten minutes i.e. around 7:05 PM along with their photographer. No chance prints could be lifted from the spot. The photographer of the Crime Team took photograph of the scene of crime (Ex.PW2/A1 to Ex.PW2/A16) including that of the place where the dead body of the child was found and also of the body after it was removed from the trench and brought out. After taking photographs and preparing the report the Crime Team left the spot at about 7:50 PM and it was thereafter that the body of the child was removed to the Mortuary and the child St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 125 witness Saroj saw the body and identified the same as that of the child whom he had seen talking to Sanjay Kumar Valmiki at the gate of the NDPL complex on 11.7.2011. Initially the child Saroj did not disclose this fact to anybody on the night of 13.7.2011 when he saw the dead body (apparently being shocked and perplexed) and rather quietly went back home and slept. It is on the next day i.e. 14.7.2011 morning that he informed his uncle Dalip Paswan about the same and Dalip immediately took the child to the police station and produced him before ASI Raju Yadav between 8:45 to 9:00 AM. Thereafter the child was thoroughly interrogated by ASI Raju Yadav and his statement under Section 161 Cr.P.C. was recorded after which a search was made for the accused Sanjay Kumar Valmiki who did not report for duty on 14.7.2011 (as evident from the attendance register Ex.PW24/A). During the day (14.7.2011) there were loud public protests/ outcry on account of the incident and the office of the NDPL was stoned by the mob resulting into damage to property. In the evening a secret information was received by ASI Raju Yadav regarding the presence of the accused Sanjay Kumar Valmiki at District Park, Haiderpur, near the Gopal Mandir. On receipt of this information ASI Raju Yadav went to the spot where accused Sanjay Kumar was arrested at 7:35 PM and thoroughly interrogated wherein he disclosed about his involvement in the present case. He also disclosed to the Investigating Officer that he had killed the child with a Y shaped steel rod which he had hidden in the NDPL Office and also that the clothes which he was wearing had been washed by St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 126 him and kept in the NPDL Office. Pursuant to the above the Investigating Officer along with the accused and other members of the investigating team reach the NDPL office at about 9:00 PM where Kuldeep Singh the Security Guard was still present (his duty hours being from 9:00 Am to 9:00 PM) and was asked to join the investigations. It was in the presence of this Kuldeep Singh that the accused gets recovered the Y shaped steel rod and his clothes from the space under the stair case.
(109) It is evident that the place where the dead body was recovered was already within the knowledge of the police but it was not within the knowledge of the police that the injuries were caused to the victim/ deceased with the Y shaped steel rod which the accused got recovered from the place under the stairs of NDPL Office on which rod blood was detected during the examination of the FSL. It was only after the child witness Saroj was produced before the police at about 8:45 9:00 AM by his uncle that he told the police about seeing the accused Sanjay Kumar with the deceased child, that for the first time the police suspected his involvement and made efforts to search for him but for the fact that he did not report for duty (14.7.2011) and thereafter there was a huge public protest in the NDPL complex which was stoned by the angry mob. It was only in the evening that pursuant to a secret information the accused was arrested and interrogated on which he made a disclosure statement and got recovered the clothes from under the staircase and also the Y shaped steel rod which according to the accused he had washed and had no visible stains (FSL St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 127 examination revealed blood stains though it was not possible to identify the same). The injuries reflected in the postmortem report are compatible to the weapon of offence i.e. Y shaped steel rod and connects to the same (particularly injury no. 1, 2 and 3). The injury no. 1 and 3 on the body of the child i.e. depression and fracture of the skull on the left side of the forehead and area of skin of 2 x 2cms missing on the left side and the injury i.e. underlying depressed fracture of the skull with pieces of bones missing would have been caused by the two longer arms of the Y shaped rod with the injury on the middle of the forehead i.e. depressed fracture of skull with pieces of bone missing and underlying area of the skin of the size of 2.5 x 2 cms missing caused by the middle/ longer arm of the Y shaped rod and are in tune/ compatible to the weapon of offence, the end of the longer limb being away from the small limbs 2.5 x 2.5 cm diameter and the end of the longer limb on the side where the smaller limbs were present was 2.7 x 2.7 cm diameter and the top circumference being 8.5 cms showing that the rod would have covered both the sides of the forehead while the blow was inflicted on the head of the child with this rod with full force. It stands established from the nature of injury that the same was caused by this Y shaped steel rod (which is used for operating the transformers/ switch gears and was normally kept in the rack on the switch gear room and it was easily available to the accused).
(110) What turns on the fact that accused Sanjay Kumar got recovered the 'Y' shaped steel rod which weapon of offence was not in the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 128 knowledge of the police. Further, it is also evident that at the time of recovery of steel rod there were no visible signs of blood stains on the steel rod but it was only during the forensic examination it shows the presence of blood stains. The fact that accused Sanjay Kumar pointed out the place and got recovered the weapon of offence i.e. Y shaped steel rod, is a strong pointer towards the guilt of accused Sanjay Kumar.
Subsequent conduct of the accused:
(111) As per the provisions of Section 8 of the Indian Evidence Act, 1872 any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (112) The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. (113) It is hardly said that there any action without a motive.
Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 129 goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
(114) The case of the prosecution is that the conduct of the accused Sanjay Kumar Valmiki an outsourced employee of M/s. Sumeet Facilities who was posted as a Sweeper at the NDPL Complex, KU Block, Pitampura is such as would raise suspicion and point towards his guilt. In this regard it is argued that firstly on 12.7.2011 when Arpan came to inspect Sanjay Kumar Valmiki at the NDPL complex he was not wearing his green pant/ uniform given to him by the agency and on inquiry Arpan was told by Sanjay that the had washed the same and could be wear the pant as it was not dried. The Ld. Public Prosecutor submits that the conduct of Sanjay Kumar Valmiki in washing the clothes he was wearing on the date of the offence, point towards his guilt. Secondly it is pointed out that on 13.7.2011 when foul smell was noticed in the office of the NDPL and Sanjay was asked to trace out the source of the smell, he was highly evasive and soon left the office despite directions to stay at the spot till his Supervisor Arpan came there. It is submitted that this conduct of the accused Sanjay Kumar is also suspicious and relevant in determining his guilty. Lastly it is argued by the Ld. Public Prosecutor that the conduct of accused Sanjay Kumar St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 130 Valmiki in misleading Master Saroj (PW25) when questioned by him (Master Saroj) with regard to the cries of the child coming from inside the room (where the dead body of the child was found), is most relevant. Ld. Public Prosecutor has submitted that it is evident that the accused Sanjay Kumar was trying to conceal his misdeeds due to which reason he mislead the child Saroj telling him that it was his brother with him. (115) I have considered the submissions made before me. It has been duly established that while on duty from 8:00 AM to 4:00 PM the accused Sanjay Kumar Valmiki was required to wear the official uniform provided to him by the agency comprising of a pant of green color and a striped shirt. It also stands established from the testimony of Arpan (PW24) that on 12.7.2011 he came to NDPL office for checking when he noticed that the accused Sanjay Kumar was only wearing the shirt provided by the agency but was not wearing the dark green pant and when he asked the reason for the same, Sanjay told him that he had washed the pant which was not dried due to which reason he could not wear the same. This was immediately after the day the alleged offence was committed and explains the absence of blood stains on his clothes/ uniform which he was wearing at the time of the incident and establishes that he caused disappearance of evidence.
(116) Coming to the second limb of the argument, it stands established from the testimony of Shiv Kumar (PW20) and Bhag Chand Meena (PW22) both employees of NDPL having their offices in the same St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 131 complex, that on 13.7.2011 a foul smell was noticed in the office on which Bhag Chand asked Sanjay Kumar to search for the source of the smell but instead after one and a half hour the accused Sanjay Kumar came to him and told that he could not find anything and it was later that the other staff told him that Sanjay had found some dead mice which he had thrown away. This shows that Sanjay tried to skirt the main issue and mislead the officials of the NDPL with regard to the source of stink. Further, again on the same day when at about 3:30 PM, Bhag Chand noticed that the smell was increasing, he called the Supervisor Arpan (PW24) and told him to check as the foul smell which was still subsisting and continuing and it is at that time that Bhag Chand noticed that the accused Sanjay Kumar had already left the complex. When Bhag Chand again telephoned to accused Sanjay Kumar and asked him to remain in the complex, he was told by the accused that he had already left and could not return. This testimony of Bhag Chand Meena (PW22) finds due corroboration from the testimony of Arpan (PW24) who had come to the spot at about 4:30 - 5:00 PM and has testified that Bhag Chand Meena had telephone him asking him to personally come and check the foul smell which coming in the office on which he himself went to the NDPL Office when he found Sanjay Kumar missing. Thereafter Arpan himself checked the entire building and it was only after checking that he found the dead body of a girl aged about 810 years lying between the panel and the wall on which he immediately informed Bhag Chand Meena. This testimony of Arpan find due corroboration from the testimony St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 132 of Bhag Chand Meena (PW22) and also from the testimony of Shiv Kumar (PW20). It is this conduct of the accused Sanjay Kumar Valmiki in leaving the complex despite directions to the contrary which is relevant and raises a suspicion on him.
(117) Lastly master Saroj in his testimony has clearly explained that while he was sitting under the fan in the Verandah he heard loud screams and cries of the child on which he peeped inside the switch gear room and found Sanjay Kumar Valmiki present there. Master Saroj questioned Sanajy Kumar as to who was with him on which Sanjay misled him by saying that it was his brother and thereafter rebuked and chided him to run away (aap ke sath main kaun hai, usne kaha mere sath mera bhai hai.... Bhag ja yaha se). In his statement under Section 313 Cr.P.C. the accused Sanjay Kumar offers no explanation for the same but rather simply denies the above. It is only the accused who could have explained how he was seen in the switch gear room by the child and who was with him. The fact that the body of the child 'U' was recovered from the same room definitely points a finger on the accused and is determinative of his guilt.
Medical Evidence/ Cause of Death:
(118) Dr. Florence Almeda (PW17) has proved the MLC of the accused Sanjay Kumar which is Ex.PW17/A according to which there was nothing to suggest that the accused cannot perform sexual intercourse. He has proved having collected the following samples of the accused St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 133 Blood samples in plain vial Blood sample air dried on sterile gauze Scalp hair plucked Nail scrapping of both hands Plucked pubic hair Smegma on slide from coronal scrapping Brown coloured underwear The said witness has also proved that the accused Sanjay Kumar refused to give semen sample due to which reason he was referred to Forensic Department.
(119) Further, Dr. Vijay Dhankar (PW23) has proved the postmortem report of the deceased which is Ex.PW23/A according to which following external injures were found on the dead body of the deceased:
i. An area of skin of size 2 x 2 cm was missing on the left side of forehead with underlying depressed fracture of skull.
ii. An area of skin of size 2.5 x 2 cm was missing on the middle of forehead with underlying depressed fracture of skull with pieces of bones missing.
iii. An area of skin of size 3 x 2 cm was missing on the right side of forehead with underlying depressed fracture of St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 134 skull with pieces of bones missing.
iv. Laceration 1.5 x 1 cm present at outer end of right eyebrow.
v. Laceration 2 x 1 cm x bone deep, present 1cm below injury no. 4 mentioned above.
vi. Laceration 3 x 1 cm muscle deep present on right side of face 3cm in front of right ear lobe.
vii. Laceration 2 x 1 cm present on inner front of lower part of right side of neck placed 3 cm from midline.
viii. Laceration 2 x 1 cm present on inner front of lower part of left side of neck placed 2 cm from midline.
ix. Laceration 4 x 3 cm present on inner front of right side of chest placed 4 cm above and inner to right nipple. x. Laceration 3 x 2 cm present on midline of upper third of front of chest.
xi. Laceration 4 x 3 cm present on inner front of middle third of left side of chest.
xii. Laceration 3 x 2 cm present on middle of front of chest. xiii. Contusion 4 x 3 cm present on outer back of middle of left arm.
xiv. Contusion 3 x 2 cm present on upper third of back of left forearm on the outer aspect.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 135 xv. Abrasion 2 x 1 cm present on back of left hand at the base of thumb.
(120) He has further proved that the death was due to cranio cerebral damage consequent to blunt force trauma to the head caused via injury no. 1, 2 and 3 mentioned above and the injuries no. 1, 2 and 3, individually as well as combined together along with injury no. 4 to 14, are sufficient to cause death in the ordinary course of nature. The witness has further proved that the internal injury no.2 (Pelvis) showing hymen was torn at multiple places and only marginal mucosal tags were present, proves the sexual assault on the child prior to her death. He has also proved that after postmortem the following exhibits were taken from the body of the deceased by him:
Nails clothes Blood on gauze Teeth Two vaginal swabs One anal swab One oral swab Maggots (121) Further, Dr. J.V. Kiran (PW16) has proved that he had received a sealed pullanda containing a Y shaped steel rod recovered at the instance of the accused as the weapon of offence and after examining the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 136 said rod he opined that the injures no. 1, 2 and 3 mentioned in the postmortem report were possible by this weapon of offence Ex.P1 which opinion is Ex.PW16/B. He has correctly identified the said Y shaped steel rod in the Court as the alleged weapon of offence on the basis of which he had given his opinion.
(122) It is evident from the aforesaid that Firstly Dr. Florence Almeda (PW17) has proved having collected the blood sample of the accused Kumar Valmiki on air dried sterile gauze (which sample had been sent to the FSL for DNA test from which the DNA was extracted and hence connects the accused as the perpetrator of the crime on the child).
Secondly Dr. Florence Almeda (PW17) has proved that during the conduct of his medical examination the accused Sanjay Kumar Valmiki had refused to give his semen sample and the accused Sanjay Kumar has not cross examined Dr. Florence Almeda on this aspect nor in his statement under Section 313 Cr.P.C. the accused has offered any justification for his refusal and hence this conduct of the accused is liable to be read against him. Thirdly Dr. Vijay Dhankar (PW23) has proved that as many as fifteen injures were present on the body of the deceased child which were in the nature of fracture, lacerations, contusions and abrasions (which injuries are also evident from the photographs of the deceased child taken by the Crime Team at the time of discovery of the dead body, which photographs are Ex.PW2/A1, Ex.PW2/A8, Ex.PW2/A9, Ex.PW2/A13, Ex.PW2/A14, St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 137 and Ex.PW2/A16). The nature and extent of the injuries as above, reflect the brutality and the grotesque nature of the assault and how much the child must have suffered. Fourthly it has been established and proved by Dr. Vijay Dhankar (PW23) that the cause of death was craniocerebral damage consequent to blunt force trauma to the head caused via injury no. 1, 2 and 3 and the injuries no. 1, 2 and 3, individually as well as combined together along with injury no. 4 to 14, were sufficient to cause death in the ordinary course of nature. Fifthly it stands established from the postmortem examination that the hymen was torn at multiple places and only marginal mucosal tags were present. This according to Dr. Vijay Dhankar conclusively establishes that the sexual assault of aggravated/ brutal form/ Rape on the child victim prior to her death. In fact, the manner in which the hymen was torn at multiple places with only marginal mucosal tags present reflect the extent of pain and trauma which the child must have suffered during the sexual assault. Sixthly Dr. Vijay Dhankar has proved that after postmortem examination of the deceased, he had taken the samples of the vaginal swabs from the body of the deceased child (which swabs were sent to the FSL for DNA examination and connects the accused as the perpetrator of the crime). Lastly Dr. J.V. Kiran has proved that the 'Y' shaped steel rod which is Ex.P1 and had been got recovered by the accused as the weapon of offence, had been produced before him in a sealed pullanda and after examining the rod he opined that the injures no. 1, 2 and St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 138 3 as mentioned in the postmortem report were possible by this weapon Ex.P1. Here, I may observe that The injury no. 1 and 3 on the body of the child i.e. depression and fracture of the skull on the left side of the forehead and area of skin of 2 x 2cms missing on the left side and the injury i.e. underlying depressed fracture of the skull with pieces of bones missing would have been caused by the two longer arms of the Y shaped rod with the injury on the middle of the forehead i.e. depressed fracture of skull with pieces of bone missing and underlying area of the skin of the size of 2.5 x 2 cms missing caused by the middle/ longer arm of the Y shaped rod and are in tune/ compatible to the weapon of offence, the end of the longer limb being away from the small limbs 2.5 x 2.5 cm diameter and the end of the longer limb on the side where the smaller limbs were present was 2.7 x 2.7 cm diameter and the top circumference being 8.5 cms showing that the rod would have covered both the sides of the forehead while the blow was inflicted on the head of the child with this rod with full force. It stands established from the nature of injury that the same was caused by this Y shaped steel rod (which is used for operating the transformers/ switch gears and was normally kept in the rack on the switch gear room and it was easily available to the accused).
Forensic Evidence:
(123) The exhibits/ exhibits so collected by Dr. Florence Almeda (PW17) from the accused Sanjay; the samples collected by Dr. Vijay St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 139 Dhankar (PW23) from the dead body of the deceased and the weapon of offence i.e. 'Y' shaped steel rod got recovered by the accused had been sent to FSL for examination reports of which have been duly proved by Ms. Manisha Upadhaya (PW18) and Ms. Shashi Bala (PW19). (124) The FSL reports, though not disputed by the accused and are even otherwise admissible in evidence under Section 293 Code of Criminal Procedure. However, they have been duly proved by Ms. Manisha Upadhyay (PW18) and Ms. Shashi Bala (PW19). Ms. Manisha Upadhyay (PW18), Senior Scientific Officer, FSL has proved that initially she conducted biological examination on the samples and thereafter serologically examined the same. She has proved her reports Ex.PX2 and Ex.PX3 according to which blood was detected on Ex.1(b) (blood sample);
Ex.3(a) (baby frock); Ex.3(b) (Baby underwear) and blood of human origin was detected on Ex.1(a) (gauze cloth piece); Ex.1(d) (scrapping material); Ex.2 (nail clippings along with skin/ fleshy material) and Ex.4 (Hair) and semen was detected on Ex.1(g) (underwear of the accused). (125) Ms. Shahi Bala has proved the report of the FSL DNA Fingerprinting Unit which report Ex.PX1 shows that blood was detected on exhibit No. 1 (Y shaped steel rod); Exhibit No.4 (blood stained brick piece); Exhibit No.6 (gauze of victim) and Exhibit No.1(a) (blood sample of accused Sanjay Kumar collected by Dr. Florence Almeda) but blood could not be detected on exhibits 3(a) & 3(b) (shirt and pant of the accused naturally so as the same had been washed by him). Further, human semen St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 140 was detected on exhibit 5(b) (cotton wool containing swab/ vaginal swab of the victim taken by Dr. Vijay Dhankar) but semen could not be detected on exhibit 5(a), 7 & 8. Thereafter exhibits 1, 4, 5(b), 6 & 1(a) were subjected to DNA isolation and DNA was isolated from the source of exhibit 5(b) 7 1(a), but DNA could not be isolated from the source of exhibits 1, 4 & 6. Ms. Shashi Bala has proved that thereafter STR analysis was used for each of the sample and data was analysed by using genoscan and genotype software and the result of analysis established that the alleles from the source of exhibit 5(b) i.e. the cotton wool swab of the victim are accounted in the alleles from the source of Ex.1(a) (gauze cloth piece of the accused). After conducting the DNA profiling/STR analysis of the Ex.5(b) and Ex. 1(a) with the source of the Ex.1(a) i.e. gauze cloth piece of the accused it has been proved by Ms. Shashi Bala (PW19) the Forensic Expert that she gave the result of the DNA profiling which result conclusively establishes that the accused is responsible for the biological stains i.e. seminal stains on the Ex.5(b) (cotton wool swab of the victim).
(126) In view of the above, I hereby hold that the forensic evidence (DNA fingerprinting) conclusively connects the accused Sanjay Kumar with the offence of rape upon the child and also of causing injuries to the deceased with the 'Y' shaped iron rod which have been found to be containing the blood stains.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 141 Discrepancies & contradictions:
(127) Ld. Amicus Curiae appearing on behalf of the accused Sanjay Kumar has pointed out the various contradictions and discrepancies in the testimonies of the witnesses. He has argued that the witness Saroj (PW25) has remained silent for three days and did not disclose having seen the deceased child with the accused Sanjay Kumar even when the inquiries were being made from his uncle, which creates a doubt on his credibility.
He has also pointed out that the room from where the dead body was recovered is easily accessible to everyone who enters the NDPL Office as there is no security guard or watchman on the gate. He has argued that Deepak who is the son of Dalip Paswan the owner of the tea stall, was never inquired and Dalip Paswan (PW14) has admitted that he did not make any inquiry from his son Deepak who was sitting at the tea stall at that time if he had also heard some cries from the office. He has pointed out that no public witness was joined at the time of arrest of the accused and there is a contradiction in the testimony of Inspector Satyender Gosain (PW31) and ASI Raju Yadav (PW30) since ASI Raju Yadav (PW30) has stated that the accused was apprehended after twothree paces whereas Inspector Satyender Gosain (PW31) has stated that accused did not try to run away on seeing police party and was apprehended after ten to twenty paces. He has also argued that Ct. Sohanbir (PW29) has stated that it took about five to ten minutes in recording the disclosure statement of the accused whereas according to ASI Raju Yadav (PW30) it took about one hour in recording St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 142 the disclosure statement. He has further pointed out that there is a contradiction with regard to the place where the disclosure statement of the accused was recorded since according to ASI Raju Yadav (PW30) the disclosure statement of the accused was recorded while sitting on a pavement under the street light at the corner of District Park whereas Inspector Satyender Gosain (PW31) has stated that it was recorded while sitting on the wall of the footpath. Ld. Amicus Curiae has further argued that no site plan of the place of recovery was prepared by the Investigating officer and according to Ct. Sohanbir (PW29) the writing work was done by the Investigating Officer while sitting on the chairs in the NDPL office whereas according to Inspector Satyender Gosain (PW31) all the writing work was done while sitting in one of the room of NDPL office. He has argued that the aforesaid discrepancies and contradictions show that the accused has been falsely implicated in this case by the Investigating Officer at the instance of NDPL office.
(128) The Ld. Addl. Public Prosecutor has on the other hand submitted that all the above contradictions are minor and can be attributed to loss of memory or difference in the observation power from person to person wherein an object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. In so far as the time, place and distance of the proceedings conducted are concerned, he has argued that usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 143 expect people to make very precise or reliable estimates in such matters. He has argued that it depends on the time sense of individuals which varies from person to person and a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.
(129) I have considered the rival contentions. Before coming to the merits of the aforesaid arguments, I first proceeded to briefly discuss the relevant case law on the subject:
(130) In the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that: "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be.
Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial." (131) Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : "It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 144 a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
(132) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(133) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 145 witness who is well tutored can successfully made his testimony totally non discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(134) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 146 part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(135) Applying the settled principles of law to the facts of the present case, at the very outset I may observe that the argument of the Ld. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 147 Amicus Curiae regarding the delay of three days of child witness Saroj in disclosing about the incident as pointed out by the Ld. Defence Counsel is factually incorrect. In fact till 13.7.2011 nobody i.e. not even the police was aware about the death of the child and the dead body of the child lying in the switch gear room, what to talk of child witness Saroj. It is only on 13.7.2011 i.e. when the dead decomposed body was discovered after 5:00 PM and when police made inquires from his uncle Dalip Paswan what the child witness Saroj noticed and what had happened. He initially did not disclose anything to anybody and it was only on the next day i.e. 14.7.2011 in the morning that he disclosed his uncle Dalip Paswas that he had seen the deceased child with the accused Sanjay Kumar on which his uncle (Dalip Paswan) took him to police station. There is nothing abnormal in his behaviour. Saroj (PW25) himself is a small child aged about 10 to 11 years and having seen the dead body of the deceased child (at night hours around 8:00 PM) whom he had seen talking to Sanjay, the likelihood of the child getting perplexed and confused or not reacting and disclosing anything to anybody out of fear, shock or disbelieve cannot be ruled out. It is only later that when the child was composed that he actually could absorbed what had transpired and informed his uncle about the aforesaid who immediately took him to the police station and informed the police about what the child had told him and it was only then that for the first time the needle of suspicion pointed towards the involvement of accused Sanjay Kumar Valmiki. It is writ large from the evidence on record that for the first time the child St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 148 witness Master Saroj saw the body of the deceased child when the same was being removed to the mortuary which would have been after 7:50 to 8:00 PM (after the crime team left the spot). Initially the child witness Saroj did not react when he saw the police officials talking to various persons including his uncle Dalip Paswan. It is was only on the next day morning i.e. 14.7.2011 that he disclosed to his uncle Dalip Paswan about the same on which Dalip Paswan took him to the police station at around 8:45 -
9:00 AM after which the child was interrogated at length and his statement was recorded there. It is then, that for the first time the role of Sanjay Kumar Valmiki came under suspect. On the same day there were large scale public protests at the office of the NDPL whose officials had to face public wrath on account of the incident. The record (attendance register) reveals that Sanjay Kumar Valmiki did not report for duty. Search was made for him and it was later in the evening that a secret information was received on which he was apprehended and arrested. Pursuant to his disclosure he got recovered the 'Y' shaped rod as the weapon of offence and his clothes which he was wearing on the date of the incident. I may note that when Sanjay Kumar Valmiki was arrested and taken to the hospital he refused to give semen sample for which no justification is forthcoming and of course, this conduct is liable to be read against him. I may also note that the DNA Report which is Ex.PX1 confirms and establishes the involvement of the accused Sanjay Kumar as the alleles from the source of exhibit 5 (b) i.e. cotton wool swab of the victim were accounted in the alleles from the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 149 source of Ex.1 (a) i.e. gauze cloth piece of accused and it was concluded that the source of the Ex.1(a) i.e. gauze cloth piece of the accused is responsible for the biological stains on the Ex. 5(b) i.e. cotton wool swab of the victim. This report (DNA fingerprinting) leaves little reason to doubt the version given by the child witness.
(136) Further, in so far as the other discrepancies so pointed out are concerned, the witness Saroj is aged about 10 years and naturally even the adult persons present at the spot were in a state of complete shock on seeing the dead body in decomposition, what to talk of the child. As regards the contradictions in the timings, place and distance etc. I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the prosecution witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted in the present case. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation. All the discrepancies in the timings as pointed out by the counsel for the accused are to immaterial can be ignored attributing the same to the lapse of time as the material facts have been substantially proved by the prosecution.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 150 Killing of the child was after the commission of rape:
(137) As per the provisions of Section 299 Indian Penal Code who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
(138) Further, as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. (139) There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 151 the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;
the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 152 whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
(140) Coming now to the evidence on record in the form of oral testimonies of the child witness Saroj, mother of the deceased Sunita, Dalip Paswan, Shiv Kumar and Bhag Chand, Arpan, Yog Ram; documentary evidence in the form of employment details of the accused and his attendance register; medical evidence in the form of postmortem report of the child and MLC of the accused; Crime Team Report including the photographs of the scene of crime and the forensic evidence in the form of Serological, Biological and DNA Fingerprinting reports all unanimously connect and correlate with each other and unanimously point out towards the guilt of the accused.
(141) It is evident from the postmortem report of the deceased that as many as fifteen injures were present on the body of the deceased and three injuries were present on the head of the deceased which were inflicted with the 'Y' shaped iron rod got recovered by the accused. The injuries no. 1, 2 and 3 show that there was a fracture of the skull as a result of the blow given with the 'Y' shaped rod and the force was such that not only was there a depression but pieces of bones were found missing from the skull in the postmortem. This is clearly indicative of the intent of the accused Sanjay Kumar to cause death of the child and this he did to conceal his misdeeds. The medical evidence establishes that hymen was torn at multiple places and only marginal mucosal tags were present. This coupled with the fact St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 153 that the child Master Saroj had heard the cries and screams of the child coming from the switch gear room, establish that a brutal sexual assault/ rape was committed upon the child and Dr. Vijay Dhankar has clearly proved that this was prior to her death. This is clearly not a case where the child had died on account of the sexual assault but a case where after the sexual assault the child had been killed by smashing her head with a Y shaped rod and after her death her body was stuffed in the trenches between the wall and the panel and the photographs Ex.PW2/A2, Ex.PW2/A3, Ex.PW2/A9 and Ex.PW2/A11 show that after killing the child in order to cause disappearance of evidence the accused specifically went behind the panels and stuffed the child in the trenches by first lifting the cables and twisting the body and dumping it under the cable in order to hide the same. All the injuries found on the body of the child were antemortem in nature and hence cannot be held to be caused at the time when the body was being stuffed in the trench. It reflects that either the child when its body was being stuffed in the trench was still alive or the injuries in the form of contusions and abrasions were caused before she was stuffed in the trench. It exhibits the most brutal, gruesome and grotesque manner in which the child had been killed. This being the background, I hereby hold that the prosecution has been able to prove and substantiate the intention of the accused Sanjay Kumar Valmiki to cause death of the child 'U' as contemplated under Section 299 and 300 Indian Penal Code for which the accused Sanjay Kumar Valmiki is held guilty for the offence under Section St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 154 302 Indian Penal Code apart from the offence under Sections 363, 376 (2)
(f) and 201 Indian Penal Code.
FINAL CONCLUSIONS:
(142) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. 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.
(143) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 155 in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. As per the evidence on record the incident had taken place on 11.7.2011 between 3:00 to 4:00 PM and on 12.7.2011 the father of the child had made a complaint to the police and search of the child was made. On 13.7.2011 it was in the afternoon that a stink/ foul smell was noticed in the office of the NDPL which was increasing and a search with regard to the source of stink was made when Sanjay Kumar Valmiki left the complex and did not return despite directions of Bhag Chand an employee of NDPL. At around 4:30 PM on 13.7.2011 Arpan the Supervisor of M/s. Sumeet Facilities Pvt. Ltd. which had outsourced Sanjay Kumar Valmiki and posted him at the NDPL office and had been called to the NDPL office, reached there and made a search for the source of foul smell. It was between 5:10 - 5:15 PM that he discovered the body of the child at the corner of the Switch Gear Room in the trench between the panel and the wall on which he informed Bhag Chand ZO(A) who in turn informed Shiv Kumar ZO both employes of the NDPL. After Shiv Kumar returned to the office he made a PCR call and it was at about 6:15 PM that vide DD No. 31A an information regarding the discovery of the dead body of the child was received at Police Station Maurya Enclave on which the police reached the spot at about 6:30 PM. The father of the child namely Shyam Paswan was thereafter called to the spot and it was at around 7:00 PM that he identified the dead body as that of his missing child 'U'. Information was given to the Crime Team at around St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 156 6:55 PM who reached the spot within ten minutes i.e. around 7:05 PM along with their photographer. No chance prints could be lifted from the spot. The photographer of the Crime Team took photograph of the scene of crime (Ex.PW2/A1 to Ex.PW2/A16) including that of the place where the dead body of the child was found and also of the body after it was removed from the trench and brought out. After taking photographs and preparing the report the Crime Team left the spot at about 7:50 PM and it was thereafter that the body of the child was removed to the Mortuary and the child witness Saroj saw the body and identified the same as that of the child whom he had seen talking to Sanjay Kumar Valmiki at the gate of the NDPL complex on 11.7.2011. Initially the child Saroj did not disclose this fact to anybody on the night of 13.7.2011 when he saw the dead body (apparently being shocked and perplexed) and rather quietly went back home and slept. It is on the next day i.e. 14.7.2011 morning that he informed his uncle Dalip Paswan about the same and Dalip Paswan immediately took the child to the police station and produced him before ASI Raju Yadav between 8:45 to 9:00 AM. Thereafter the child was thoroughly interrogated by ASI Raju Yadav and his statement under Section 161 Cr.P.C. was recorded after which a search was made for the accused Sanjay Kumar Valmiki who did not report for duty on 14.7.2011 (as evident from the attendance register Ex.PW24/A). During the day (14.7.2011) there were loud public protests/ outcry on account of the incident and the office of the NDPL was stoned by the mob resulting into damage to property. In St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 157 the evening a secret information was received by ASI Raju Yadav regarding the presence of the accused Sanjay Kumar Valmiki at District Park, Haiderpur, near the Gopal Mandir. On receipt of this information ASI Raju Yadav went to the spot where accused Sanjay Kumar was arrested at 7:35 PM and thoroughly interrogated wherein he (accused) disclosed about his involvement in the present case. He also disclosed to the Investigating Officer that he had killed the child with a Y shaped steel rod which he had hidden in the NDPL Office and also that the clothes which he was wearing had been washed by him and kept in the NPDL Office. Pursuant to the above the Investigating Officer along with the accused and other members of the investigating team reach the NDPL office at about 9:00 PM where Kuldeep Singh the Security Guard was still present (his duty hours being from 9:00 AM to 9:00 PM) and was asked to join the investigations. It was in the presence of this Kuldeep Singh that the accused got recovered the Y shaped steel rod and his clothes from the space under the stair case. The accused after his medical examination was produced before the Ld. Illaka Magistrate on the next day. After the conduct of postmortem of the deceased and sending the exhibits to the FSL, the charge sheet was filed. (144) From the evidence on record the following facts stand established:
➢ That the accused Sanjay Kumar Valmiki was working as Sweeper in the NDPL Office through the outsourced agency M/s. Sumeet Facilities Pvt. Ltd. and was responsible for the cleaning work St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 158 in the NDPL Office.
➢ That on 11.7.2011 the accused Sanjay Kumar Valmiki was posted at the NDPL Office and attended his duties between 8:00 Am to 4:00 PM.
➢ That Dalip Paswan is running a tea stall outside the NDPL Office where his son Deepak and nephew Master Saroj are helping. ➢ That the mother of the prosecutrix used to work as maid servant in the Kothies and she left her children including the prosecutrix/ victim 'U' in the park at KU Block Park, behind NDPL office.
➢ That on 11.7.2011 at around 3:00 PM the mother of the prosecutrix left the prosecutrix 'U' (deceased) and while she was leaving, the prosecutrix also went out of the park and informed her mother (Smt. Sunita) that she was going to drink water. ➢ That Master Saroj had gone to the Mother Dairy to purchase milk and when he was going he saw the accused Sanjay Kumar Valmiki who was the Sweeper in the NDPL Office standing along with a small girl aged 8 - 10 years.
➢ That it is a normal sight that children come to the NDPL building for taking cold drinking water and nobody objects the same. ➢ That after giving milk (which he had purchased) to his brother Deepak, Master Saroj went inside the NDPL complex and sat under the fan of the temple situated on the backside of the NDPL St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 159 Office when he heard the screams of a child coming from the switch gear room on which he peeped inside the wire mesh and saw the accused Sanjay Kumar inside the room.
➢ That Master Saroj questioned Sanjay as to who was there with him on which the accused Sanjay explained that his brother was with him and thereafter chided Master Saroj asking him to go away by saying Bhag yahan se on which Saroj returned back to the tea stall.
➢ That Sanjay Kumar Valmiki first committed brutal rape on the child and thereafter in order to hide his misdeeds he killed her by repeatedly hammering and clobbering the child with a 'Y' shaped steel rod (used for operating the switch gear panel) and smashed her head in order to hide his reprehensible and disgraceful act and for causing disappearance of the identity.
➢ That the accused then dumped and stuffed the badly mutilated body of the child in the trench under the switch gear panel towards the corner of the room where nobody would have noticed the same in routine and it is there where the lifeless body of the child lay bundled for almost two days until the stink of decomposition rang the alarm bells leading to a search for the source of the stink resulting into the discovery of the mutilated and decomposed body of the child. ➢ That on 13.7.2011 when the stink reached the front side room of Bhag Chand it is then that the officials of the NDPL started St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 160 searching for the source of the stink ➢ That the accused Sanjay Kumar Valmiki tried to skirt the issue by claiming that some dead mice had been found in the complex which he had thrown away.
➢ That when the stink still persisted and the employee of NDPL Bhag Chand was not satisfied, he called the Supervisor Arpan to the complex but in the meanwhile Sanjay Kumar Valmiki left the complex and despite directions did not return. ➢ That Arpan came and inspected all the rooms and at about 5:10 - 5:15 PM found the dead body of the child in the switch gear room under the panel in the corner of the room. ➢ That the information was given to the police which information reached Police Station Maurya Enclave at 6:15 PM after which the police officials reached the spot at about 6:30 PM. ➢ That the Crime Team also reached the spot at about 7:05 PM and photographs of the spot including the dead body were taken and returned by 7:50 PM.
➢ That inquiries were made from the employees of NDPL and the tea vendor Dalip Paswan where the child Saroj was also present. ➢ That when the body of the deceased child was brought out at the gate, the child witness Saroj saw the body but did not tell anybody and went home and slept.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 161 ➢ That on the next day morning i.e. 14.7.2011 Saroj disclosed to his uncle that he had seen the accused Sanjay Kumar Valmiki talking to the girl (whose body was discovered) on 11.7.2011 on which Dalip Paswan immediately took Saroj to Police Station at about 8:45 - 9:00 AM without any loss of time after which the child Master Saroj was interrogated and his statement was recorded. ➢ That on the same date i.e. 14.7.2011 there was a public outcry when the news regarding body of the child being discovered in the complex spread in the area and the office of the NDPL was stoned. ➢ That accused Sanjay Kumar Valmiki did not attend to his duties on 14.7.2012.
➢ That at 6:30 PM ASI Raju Yadav received secret information regarding presence of the accused in the area of District Park Haiderpur near Gopal Mandir on which the accused was arrested. ➢ That after the accused Sanjay Kumar Valmiki was arrested, he made a disclosure statement regarding his involvement in the case and pursuant to the same got recovered his clothes which he was wearing at the time of the incident and also got recovered the weapon of offence i.e. Y shaped steel rod.
➢ That after arrest Sanjay Kumar Valmiki was taken to BSA Hospital where he refused to give his semen sample for which an adverse inference is drawn against the accused. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 162 ➢ That hymen of the child was torn at multiple places with marginal mucosal tags present, showing that rape in a brutal form had been committed on the child before her death. ➢ That the nature of injuries on the body of the child as many as 15 in number indicate the gruesome and the brutal manner in which she was subjected to rape and the ghastly and horrific manner in which she has been hammered to death.
➢ That the Forensic Evidence in the form of DNA fingerprinting report connects the accused with the semen stains detected in the vaginal swab of the deceased child and conclusively establishes that it was he who had committed rape on the child.
➢ That the injuries reflected in the postmortem report are compatible to the weapon of offence i.e. Y shaped steel rod and connects to the same.
➢ That the injury no. 1 and 3 on the body of the child i.e. depression and fracture of the skull on the left side of the forehead and area of skin of 2 x 2 cms missing on the left side and the injury i.e. underlying depressed fracture of the skull with pieces of bones missing would have been caused by the two longer arms of the Y shaped rod with the injury on the middle of the forehead i.e. depressed fracture of skull with pieces of bone missing and underlying area of the skin of the size of 2.5 x 2 cms missing caused by the middle/ longer arm of the Y shaped rod and are in tune/ St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 163 compatible to the weapon of offence, the end of the longer limb being away from the small limbs 2.5 x 2.5 cm diameter and the end of the longer limb on the side where the smaller limbs were present was 2.7 x 2.7 cm diameter and the top circumference being 8.5 cms showing that the rod would have covered both the sides of the forehead while the blow was inflicted on the head of the child with this rod with full force.
➢ That the injuries were caused by this Y shaped steel rod which had been got recovered by the accused which rod is used for operating the transformers/ switch gears and was normally kept in the rack on the switch gear room and it was available at the spot where crime was committed.
➢ That the death was caused due to craniocerebral damage consequent to blunt force trauma to the head caused via injury no. 1 and the injuries no. 1, 2 and 3, individually as well as combined together along with injury no. 4 to 14, are sufficient to cause death in the ordinary course of nature.
(145) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 164 The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(146) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (147) In view of the above, I hereby hold the accused Sanjay Kumar Valmiki guilty of having taken/ kidnapped the prosecutrix (deceased) 'U' aged about 8 years from the lawful guardianship of her parents within the intent to commit rape upon her; thereafter of having committed rape upon her; of having murdered her by hammering her head with steel rod. He is also held guilty of causing disappearance of the evidence of commission of offence by washing his clothes which he was wearing at the time of committing of aforesaid crime and concealed the steel rod which he used to kill the victim which he got recovered later on and of misleading the child Master Saroj by saying to him that it was his St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 165 brother with him and thereafter of concealing the body of the deceased child by stuffing the same in the trenches under the panels between the wall and panels in the corner of the room. The accused Sanjay Kumar Valmiki is hereby held guilty of the offence under Section 363, 376 (2) (f), 302 and 201 Indian Penal Code and accordingly convicted.
(148) However, before I end, I am pained to observe kind of indifference which the officials of the NDPL posted in the office/ spot where the incident took place have exhibited to the criminal happenings inside the building. It is surprising that in an office of a public undertaking having number of employees with public dealings round the clock, nobody appears to be bothered of what was going on inside. A child in broad day light was raped and murdered and surprisingly nobody notices the same till such time they themselves get affected by the stink of the decomposing body. Whose responsibility is this building (of the NDPL) or is it nobody's responsibility? A question which I pose is whether a building housing the office of a Public Undertaking be left to the mercy of lower functionaries and outsourced employees. These are the issues which one needs to address.
(149) Case be listed for arguments on sentence on 18.5.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 11.5.2012 ASJII(NW)/ ROHINI
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 166
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST) ROHINI COURTS: DELHI Session Case No. 166/2011 Unique Case ID No. 02404R0286942011 State Vs. Sanjay Kumar Valmiki S/o Jagdish Kumar Vailmiki R/o Jhuggi Lohiya Camp, Haiderpur, Delhi Permanent resident of Village Shesbaag PS Sheshbaag, Mohalla Neechi Nehlore, Kamla Cold Storage, Distt. Badayun, U.P. (Convicted) FIR No.: 226/2011 Police Station: Maurya Enclave Under Section: 302/376 (2) (f)/376/201 IPC Date of Judgment: 11.5.2012 Arguments concluded on: 26.5.2012 Date of Sentence: 31.5.2012 APPEARANCE:
Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State.
Convict Sanjay Kumar Valmiki in judicial custody with Sh. Rajneesh Antil Advocate/ Amicus Curiae.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 167 ORDER ON SENTENCE:
(1) This case is a heart rendering tale of a thirsty child aged around 78 years belonging to an extremely poor family, who in the thick of summers wanders in search of water leaving her younger siblings in a park while her mother has gone for her daily chores and does not return thereafter. At the gate of NDPL Office where a water cooler is installed and nobody objects to public persons, particularly children coming there to have cold water, the convict Sanjay Kumar Valmiki is present. Like a hungry vulture and a starving hound waiting for its kill, the convict on seeing the child pounces upon on her and takes her to the portion at the back of the NDPL office i.e. the switch gear room where none is present. It is there that he fulfills his hunger for sex and defiles the body of the hapless and helpless child by brutally raping her to satisfy his carnal desire; a small harmless child whose body is yet not developed so as to be even being capable of inviting anybody's lustful eyes. The convict does the unthinkable, something which even an animal would not do i.e. to ravish the body of a small child. After fulfilling his hunger for sex he does not stop at that and uses brutal force by repeatedly hammering and clobbering the child with a 'Y' shaped steel rod (used for operating the switch gear panel) and smashing her head in order to hide his reprehensible and disgraceful act and cause disappearance of the identity. The injures on the body of the child as many as 15 in number speak volumes of the brutality and force with which the innocent child had been battered to death. The convict then dumps the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 168 badly mutilated body of the child in the trench under the switch gear panel towards the corner of the room where nobody would have noticed the same in routine and it is there where the lifeless body of the child lay bundled for almost two days until the stink of decomposition ran the alarm bells leading to a search for the source of the stink resulting into the discovery of the mutilated and decomposed body of the child.
(2) The prosecution in order to establish the charges against the convict Sanjay Kumar Valmiki, has examined as many as Thirty One witnesses, the most material being the child witness Saroj (PW25) aged about 1011 years who has not only seen the convict Sanjay Kumar Valmiki an outsourced Sweeper at the office of the NDPL talking to the child victim/ prosecutrix 'U' but after sometime had also heard the cries and screams of the child coming from the switch gear room while he was sitting outside in the Verandah under the fan adjoining this room separated by a wire mesh and saw Sanjay Kumar inside the room when he inquired as to who was inside on which the convict told him that it was his brother. The evidence which actually nailed the convict Sanjay Kumar is the FSL/ DNA Fingerprinting report which has conclusively established that the semen stains present in the swab taken from the vagina of the deceased child belonged to him. The Forensic Report has established that the alleles from the source of exhibit 5(b) i.e. the cotton wool swab of the victim are accounted in the alleles from the source of Ex.1(a) i.e. gauze cloth piece of the convict Sanjay Kumar Valmiki and after conducting the DNA profiling/ St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 169 STR analysis it has been concluded that the convict Sanjay Kumar Valmiki is responsible for the biological stains i.e. seminal stains on the cotton wool swab of the victim. Thanks to the latest scientific technology and forensics which made it possible to identify the offender despite an attempt by him (offender) to destroy all evidence against him by mutilation of the body of the victim. It is the use of this technology (DNA fingerprinting) which has helped in conclusively establishing the guilt of the offender beyond doubt. (3) It is on the basis of the oral testimonies of the various witnesses examined by the prosecution particularly the child witness Saroj and his uncle Dalip Paswan, the medical and forensic evidence as above, that this Court vide judgment dated 11.5.2012 held the accused Sanjay Kumar Valmiki guilty of having kidnapped the prosecutrix (deceased) 'U' aged about 8 years from the lawful guardianship of her parents with the intent to commit rape upon her and of actually having committed rape upon her and then of having murdered the girl by brutally clobbering her with a 'Y' shaped steel rod and of causing disappearance of the evidence of commission of offence by washing his clothes which he was wearing at the time of committing of aforesaid ghastly crime and by concealing the Y shaped steel rod with which he had brutally killed his victim for which the accused Sanjay Kumar Valmiki has been held guilty of the offence under Section 363, 376 (2) (f), 302 and 201 Indian Penal Code. (4) Heard arguments on the point of sentence. The convict Sanjay Kumar Valmiki a young boy of 21 years is 5th class pass and is a Sweeper by St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 170 profession. He has a family comprising of father, mother, two elder & three younger brothers.
(5) Ld. Additional Public Prosecutor for the State has vehemently argued for death penalty in the present case. It is argued that a child of eight years of age was not only raped but also she was killed by the convict in a most brutal manner. Ld. Additional Public Prosecutor has pointed out that there were as many as 15 injuries on the body of the small child which are evident of the brutality and the force with which the convict had killed the child. He has argued that the offence is rarest of rare nature because the child was not murdered during the course of committing rape rather she was brutally murdered after the rape. Ld. Additional Public Prosecutor has argued that the child was killed in a most gruesome manner and except death, no other sentence would be appropriate. In this regard he has placed his reliance on the authorities of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580; Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and Mohd. Mannan @ Abdul Mannan Vs. State of Bihar reported in 2011 Crl.L.J. 3380 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Sanjay Kumar Valmiki.
(6) On the other hand the Ld. Amicus Curiae for the accused has argued that that this is a case based on circumstantial evidence and it has been held in numerous authorities that death penalty should not be awarded St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 171 if the case is based upon circumstantial evidence. It is further argued that in the present case there is no eye witness and that the circumstances proved against the convict are not so overwhelming that a highest degree of certitude in prosecution evidence is obtained. It is argued that in view of the nature of evidence, the award of death penalty would not be appropriate. In this regard, he has placed his reliance on the following authorities:
(a) Rameshbhai Chandubhai Rathod vs. State of Gujarat reported in 2009 (5) SCC 740.
(b) Amit @ Ammu Vs. State of Maharastra, reported in 2003 (3) Crimes 318 (SC).
(c) Sri Ashim Dutta @ Nilu Vs. State of West Bengal, reported in 1999 (I) Current Criminal Reports 540 (DB).
(d) Raja Ram Yadav Vs. State of Bihar reported in 1996 Crl.L.J. 2307 (SC).
(e) Ramji Lal Vs. State of Bihar, reported in 2000 Crl.L.J. 19 (SC).
(f) Allaudin Mian & Ors. Vs. State of Bihar, reported in 2000 Crl.L.J. 19 (SC).
(g) Machhi Singh & Ors. Vs. State of Punjab, reported in 1983 (3) SCC 470.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 172 (7) I have considered the submissions made before me and on these rival contentions, I take a stock of rulings relied upon by the parties. In the case of Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], it was held by the Hon'ble Supreme Court that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. The Hon'ble Court further cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) where the murder has been committed after previous planning and involves extreme brutality; or
(b) where the murder involves exceptional depravity. The mitigating circumstances which were mentioned were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 173 above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. (8) The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], where Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c)When the murder of an innocent child, a helpless woman is committed.
(9) The matter was further considered in Devender Pal Singh Vs. State of NCT of Delhi [AIR 2002 SC 1661], wherein, after examining both the aforementioned cases, it was held that when a murder is committed in an extremely brutal manner, or for a motive which suggests total depravity and meanness or where the murder is by hired assassin for money or St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 174 reward, or a cold blooded murder for gains, the death sentence is justified. Similar such observation was made even in the decision in Atbir Vs. Govt. of NCT of Delhi [JT 2010 (8) SC 372]. Relying on all these cases, Hon'ble Supreme Court, in Criminal Appeal Nos. 127130 of 2008 (C. Muniappan & Ors. Vs. State of Tamil Nadu) decided on 30.8.2010, confirmed the death sentence. The unprovoked attack on the bus and the burning of the bus by sprinkling petrol on the bus, and the death of three students as a result of such burning was viewed by Hon'ble Supreme Court as a barbaric and inhuman act of the highest degree. The offence was viewed as brutal, diabolical, grotesque and cruel, shocking the collective conscience of society. It was on that account that the death sentence was confirmed. (10) In Dhananjoy Chatterjee Vs. State of West Bengal [1994 (2) SCC 220], the murder was of a helpless girl who was raped and then murdered, the Hon'ble Supreme Court confirmed the death sentence while viewing the case as Rarest of Rare cases.
(11) In the case of Atbir Vs. Govt. of NCT of Delhi (supra), which was a case dependent upon a dying declaration, the allegation was that the accused had stabbed all the three persons of a family so that he and his brother could enjoy the entire property and money. The repeated stabbing of the deceased was viewed as the act for which the accused could be legitimately awarded death sentence. The incident therein had occurred on 22.1.1996 while the Sessions Judge had awarded the death sentence on St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 175 27.9.2004. The High Court had confirmed the death sentence on 13.1.2006 while Hon'ble Apex Court affirmed this sentence vide its judgment dated 9.8.2010, after taking the stock of the aggravating circumstances and mitigating circumstances, as pointed out in Bachan Singh Vs. State of Punjab (cited supra) and Machhi Singh & Ors. Vs. State of Punjab (cited supra), came to the conclusion that though Atbir was a young person of 25 years of age and had already spent 10 years in jail, that was not a mitigating circumstance in his favour. The three murders were held to be extremely brutal and diabolical, committed with deliberate design in order to inherit the entire property of Jaswant Singh without waiting for his death. In Sushil Murmu Vs. State of Jharkhand [AIR 2004 SC 394], which was a case of human sacrifice of a 9 years old child, Hon'ble Supreme Court found the accused guilty on the basis of circumstantial evidence. While culling out the aggravating circumstances, hon'ble Supreme Court once again named five circumstances on the basis of the earlier case law in Machhi Singh & Ors. Vs. State of Punjab (supra), Bachan Singh Vs. State of Punjab (supra) and Ediga Anamma Vs. State of A.P. [AIR 1974 SC 799]. In the said case, the Hon'ble Court recorded that the murder was a dastardly murder by sacrificing a hapless and helpless child of another for personal gain and to promote his fortunes by pretending to appease the deity or was a brutal act which is amplified by the grotesque and revolting manner in which it was committed. This case was even relied upon by the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 176 High Court while confirming the death sentence.
(12) In another decision in Gurdev Singh & Anr. Vs. State of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR 2003 SC 4187], the Hon'ble Supreme Court specifically held in Para 19 that there could be no fixed or rigid formula or standard for invoking extreme penalty of death sentence.
(13) In the case of Mohd. Mannan @ Abdul Mannan Vs. State of Bihar reported in 2011 Crl.L.J. 3380 Hon'ble Mr. Justice Chandramauli Kumar Prasad while dealing with an almost similar case of rape and killing of a child aged 7 years observed as under:
"......... 17. It is trite that death sentence can be inflicted only in a case which comes within the category of rarest of the rare cases but there is no hard and fast rule and the parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as rarest of the rare cases and although certain comprehensive guidelines have been laid to adjudge this issue but no hard and fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in deciding this question the number of persons killed is not decisive. Further crime being brutal and heinous itself do not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 177 community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and continue to be so, threatening its peaceful and harmonious coexistence. The court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balancesheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer, de hors their personal opinion and inflict death penalty. These are the broad guidelines with this Court had led for imposition of the death penalty....."
(14) Earlier the Hon'ble Apex Court in the case of Swami Shradhanand Vs. State of Karnataka reported in 2008 (13) SCC 767 also considered an alternative option and substituted the death penalty with life imprisonment with the directions that the convict must not be released for the rest of his life which principle was also applied by our own High Court in the case of Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 wherein Hon'ble Mr. Justice Pradeep Nandrajog in this case pertaining to the killing of an eye witness and injuring of his security officer in a shoot out by the accused in full public St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 178 view, examined this facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249. Hon'ble Mr. Justice Pradeep Nandrajog also considered the various alternatives available, in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. In the case of Santosh Kumar Satish Bhushan Bariyar Vs. State of Maharastra (Supra) the Hon'ble Supreme Court has highlighted the important facet pertaining to the sentencing procedure being the consideration of alternative options. Discussing the nature and the content of the Rarest of Rare dictum, the Hon'ble Apex Court in the above case had observed that a real and abiding concerned for the dignity of human life postulates resistance to taking a life through instrumentality of law. That ought not to be done, save in the rarest of rare cases, where the alternative option is unquestionably foreclosed. It was observed that imprisonment for life as penalty entails, is that the accused must remain in prison till his life i.e would never be set free from jail. The executive, however, has the power of remission under Section 433 Cr.P.C which is subject to the restriction imposed by section 433A Cr.P.C as per which a person sentenced to imprisonment for life or one whose sentence of death has been commuted to imprisonment for life cannot be released from prison St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 179 unless he/she has served at least 14 years of imprisonment. Hence, the alternative option considered by the Court was to pass a direction that the accused who has been held guilty would not be released from prison till a sentence more than 14 year imprisonment has been suffered by the accused who has been sentenced to undergo imprisonment for life. (15) I have also given my careful consideration to the various judgments relied upon by the Ld. Amicus Curiae i.e. in the case of Rameshbhai Chandubhai Rathod vs. State of Gujarat; Amit @ Ammu Vs. State of Maharastra,; Sri Ashim Dutta @ Nilu Vs. State of West Bengal; Raja Ram Yadav Vs. State of Bihar; Ramji Lal Vs. State of Bihar and Allaudin Mian & Ors. Vs. State of Bihar. I may mention that these authorities would not apply to the facts of the present case as the above judgments deal with cases where convictions were based on evidence which was either too weak or circumstantial with no direct credible evidence. In the present case the evidence is direct, conclusive and credible (in the form of testimony of the child witness Saroj and the DNA Fingerprinting Report).
(16) Coming now to the facts of the present case, before arriving at a decision whether the case falls in the category of rarest of the rare cases,this Court is required to list aggravating or mitigating circumstances and prepare balance sheet of the same before arriving at a decision. The division bench of our own High Court in case of State v. Raj Kumar Khandelwal St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 180 reported in 164 (2009) DLT 713 (DB) observed that for the said purpose circumstances can be listed under six heads :
(a) Circumstances personal to the offender.
(b) Preoffence conduct of the offender and in particular the motive.
(c) Contemporaneous conduct of the offender while committing the offence
(d) Post offence conduct of the offender
(e) Role of the victim in commission of the crime.
(f) Nature of evidence.
(17) Hon'ble High Court has also listed illustrations by way of judicial decision as to what amount to mitigating factors and aggravating factors. (18) Now, applying the same to the circumstances of the present case, the various mitigating and aggravating factors can be listed as under:
Sr. Mitigating Factors Aggravating factors
No
Circumstances personal to the offender
1 The convict does not have past Anti social/ Socially Abhorrent
criminal record. nature of crime
2 He was too young at the time The offence has been committed
of commission of offence in the circumstance which
arouses social wrath and on
soon after the discovery of the
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 181
mutilated body of the child in
the office of NDPL, public
anger spilled on the road and
there were huge protests
resulting into stone pelting and
destruction of public property
(office of the NDPL)
3 Nil Offence is of such a nature so
as to shake the conscience and
confidence of people.
Preoffence Conduct of the offender and in particular the motive.
4. Nil There is significant degree of planning/ premeditation on the part of the convict while luring away the child aged about 78 years who was unknown to him previously.
Contemporaneous Conduct of the offender while committing the offence
5. Nil Manner of killing is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
6. Nil Mental/ physical suffering inflicted on the victim before her death is immense Post Offence Conduct of the offender.
7. Nil Concealment, destruction/ dismemberment of the body by St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 182 mutilation of the same.
8. Nil Lack of remorse.
Role of the victim in commission of the crime
9. Nil. Victim was vulnerable because of her tender (around 78 years).
Nature of the evidence
10. Nil Direct evidence in the form of testimony of child witness Saroj who not only had last seen the convict with the victim but also heard her screams from the room where her body was recovered and had seen the convict Sanjay Kumar in the same room and questioned him on the same.
11 Nil Forensic Evidence in the form of DNA fingerprinting report connecting the semen stains taken from the vaginal swab of the victim to the convict.
12. Nil FSL (Biological) report showing the presence of blood stains on the 'Y' shaped steel rod/ weapon of offence got recovered by the convict.
(19) In the present case, the DNA Fingerprinting Report which has been held to be credible, finds due corroboration from oral evidence of the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 183 child witness Saroj, a witness who had not only last seen the convict with the child but had also heard the cries of the child and seen the convict in the switch gear room and questioned him with regard to the cries of the child. Moreover, the convict was not a boy in his teens rather a mature young man of 21 years of age and the victim a child of 78 years. I am of the view that convict Sanjay Kumar is not of such a young age that he could not fully comprehend his actions. He was not a person in his teens but a matured robust young man of 21 years and had not acted on sudden provocation or on being suddenly emotionally disturbed. The absence of any past criminal record and the young age of the convict, in my view, are not such mitigating factors as could overweigh and diminish the aggravating circumstances noted earlier in a manner so as to call for lesser punishment being imposed. (20) The victim on the other hand was a small child, on account of her tender age, neither her body was fully developed nor she was in a position to offer any resistance to the convict. The convict took the advantage of a helpless and defenceless child who could not even talk or try to escape or express herself and was an easy and vulnerable prey. How much of physical pain and agony the child must have suffered when the offence was being committed and despite her tender age, the convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the child and thereafter repeatedly hammered her to death. (21) The victim a frail child of hardly 78 years was incapable of arousing lust in any normal situation. The convict won the trust of the St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 184 thirsty child wandering in search of water, while the child did not understand his wicked desires as evident from the fact that the innocent child made no protest while she was taken away by the convict inside the NDPL office with the purpose of satisfying his sexual urge and she became an easy prey to the lust of the convict. The manner in which the hymen of the child is shown as torn at multiple places with only marginal mucosal tags present, indicate the gruesome and the brutal manner in which she was subjected to rape and the fifteen injuries on her body indicate the ghastly and horrific manner in which she has been hammered to death thereafter. The victim was an innocent child who did not provide any excuse much less a provocation for murder and the cruelty is appalling. (22) Hence, in the present case, there are only two mitigating factors which are in favour of the accused/convict i.e. no previous involvement and his age at the time of commission of offence whereas the aggravating factors are many which are as under:
➢ Anti social/ socially abhorrent nature of crime ➢ The offence has been committed in the circumstance which arouses social wrath and on soon after the discovery of the mutilated body of the child in the office of NDPL, public anger spilled on the road and there were huge protests resulting into stone pelting and destruction of public property (office of the NDPL).
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 185
➢ Offence is of such a nature so as to shake the
conscience and confidence of people.
➢ There is significant degree of scheming and
premeditation when the convict lured the child. ➢ Manner of killing is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community. ➢ Concealment, destruction/ dismemberment of the body.
➢ Lack of remorse.
➢ Victim was vulnerable because of her tender age (78
years).
(23) It is writ large that the aggravating circumstances far outweigh
the mitigating circumstances. From the facts as recapitulated above, it
would be seen that the present case falls in the category of rarest of rare cases, it meets four out of five circumstances as set out in Machi Singh's case for determining rarest of rare cases. The first circumstance being that the offence is such which may be taken as shocking the collective conscience of the community justifying infliction of death penalty. The murder had been committed in an extremely brutal, diabolical, revolting and dastardly manner with fifteen injuries being inflicted by the convict one after the another in succession. The second circumstance being the motive St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 186 for crime which evinces total depravity and meanness. This was a cold blooded murder for destroying of misdeeds without any immediate provocation. The third circumstance also gets attracted as it deals with child who belongs to a poor Scheduled Caste family (though its a different issue that the convict himself belongs to the same community being a Valmiki). The fourth condition does not get satisfied but the fifth condition is satisfied in as much as victim of the murder was an innocent child of 78 years who was helpless before the convict Sanjay Kumar Valmiki who was armed with steel rod. The brutality of the act as noted earlier is amplified by repeated injuries as many as fifteen, inflicted on the deceased in succession. The death was due to craniocerebral damage consequent to blunt force trauma to the head caused via injury i.e. fracture to the skull on both the right and left side with pieces of bones missing and on the forehead coupled with the other injuries which were sufficient to cause death in the ordinary course of nature. Further, the internal injury showing that hymen was torn at multiple places where only the marginal mucosal tags were present indicate the brutality with which the sexual assault was made on the child prior to her death. These demonstrate that the convict does not possess basic humanness and lacks the psyche or mind set which may be amenable for any reform as his psyche displayed during the commission of offence and later ravishing the girl indicates his highly corrupted mind set. It is writ large that the convict Sanjay Kumar Valmiki had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 187 This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society and their expectation from the authority conferred with the power to adjudicate, is to inflict the death sentence which is natural and logical [Ref.: Mohd. Mannan @ Abdul Mannan Vs. State of Bihar (Supra)].
(24) When I recollect the words of Gurudev Rabindra Nath Tagore "Where the mind is without fear and the head is held high........ Into that heaven of freedom, My Father, let his country awake". My head hangs in shame when I think to myself if this was the freedom we had bargained for?
Have we not, as a nation, failed to provide our children with a safe environment where they (children) can breathe in freedom; where they do not have the fear of being hounded and pounded and where the fear does not drive the helpless terrorized parents to sacrifice their daughters in wombs. Have we not failed to come up to the legitimate expectations of our people. (25) What the convict has done is unthinkable when even an animal would not do. The convict is a sex maniac and is a menace to the society and shall continue to be so and he can not be reformed. A cancerous cell, if not destroyed in time, destroys the entire body. So is the case with certain category of perpetrators of crime who if not removed from the circulation of the society would destroy it. The discovery of the mutilated/ decomposed body of the child in the NDPL office resulted into a huge public outcry where people's anger spilled on the streets and there was large scale stone pelting in the office of NDPL resulting into damage to public St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 188 property. Had the convict fallen into the hands of the angry mob, he surely would have been lynched and killed. Such was the public wrath. This Court cannot ignore the loud cry for justice by the society in this case involving heinous crime of rape on an innocent child of tender years and her grotesque killing and will respond by imposition of proper sentence least people loose faith in the Judicial System and take law into their hands. If the Justice System fails to act in time to come up to legitimate expectations of the society; people would stand up and act, for which then, we cannot blame them. There cannot be a disconnect between the sentence so imposed by the Court and the legitimate expectations of the society. Let those who mess with children know that the Justice System in India has Zero Tolerance for it and a single moment of madness can lead them to gallows. In a country of Gautam Budha and Mahatma Gandhi governed by faith believing in sacredness of all living creatures, urging the avoidance of harm and violence and practicing Ahimsa, the convict without a moment of remorse and regret even for once committed Bal Hatya and it is hence that the case falls within the category of rarest of the rare cases. There is one and only one sentence which a person charged with raping a child and killing her deserves. It is Death and the only place where such a person deserves to go is straight to the gallows where he is hanged by neck till he is dead.
(26) In view of the above I hereby award the following sentences to the convict Sanjay Kumar Valmiki:
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 189
(a) The convict is sentenced to death for offence punishable under Section 302 Indian Penal Code and fine of Rs.1,00,000/.
Accordingly he be hanged by the neck till he is dead. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of three months. The entire fine amount of Rs.1,00,000/ shall be given to the family of the deceased as compensation under Section 357 Code of Criminal Procedure.
(b) The convict is further sentence to undergo Rigorous Imprisonment (RI) for a period of five (5) years and fine of Rs.5,000/ for the offence punishable under Section 363 Indian Penal Code. In default of payment of fine, the convict is further sentence to undergo simple imprisonment (SI) for a period of one month.
(c) The convict is further sentence to undergo Rigorous Imprisonment (RI) for Life i.e. Rest of his Life and fine of Rs.10,000/ for offence punishable under Section 376 (2) (f) Indian Penal Code. In default of payment of fine, the convict is further sentence to undergo Simple Imprisonment (SI) for a period of two months. It is clarified that the convict shall not be considered for grant of remission.
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 190
(d) The convict is further sentence to undergo Rigorous Imprisonment (RI) for a period of three (3) years and fine of Rs.1,000/ for offence punishable under Section 201 Indian Penal Code. In default of payment of fine, the convict is further sentenced to undergo simple imprisonment (SI) for a period of 15 days.
(27) Benefit of Section 428 Cr.P.C shall be given to the convict for the period already undergone by him during the trial as per rules. (28) The death penalty reference is being sent to hon'ble High Court of Delhi for the confirmation of the same.
(29) The convict is also informed that he can file the appeal against the judgment within a period of 30 days as per Article 115 of The Limitation Act, 1963.
(30) Certified copy of the judgment and order on sentence alongwith duly attested copy of charge, evidence, statement of accused, exhibited documents be given to the convict, free of cost.
(31) The exhibits be preserved till the confirmation of death penalty by the Hon'ble High Court. The file be prepared as per Rule 34 of Chapter 24 Part B Vol. III of Delhi High Court Rules and be sent to Hon'ble High Court as per rules.
Announced in the open court (Dr. KAMINI LAU)
Dated: 31.5.2012 ASJII(NW)/ ROHINI
St. Vs. Sanjay Kumar Valmiki, FIR No. 226/2011, PS Maurya Enclave Page No. 191