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Delhi District Court

State vs . Sanjay@ Pintu on 28 May, 2010

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IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V: OUTER:
                     ROHINI: DELHI
SC NO. 100/08
FIR No. 327/05
P.S. Bawana
U/s 363/307 IPC
ID No. 02404R0982012005

State Vs. Sanjay@ Pintu
          S/o Sh. Raj Kumar
          R/o Jhuggi No. E-73-B-22,
          Sanjay Colony, Gokul Puri,
          Delhi.
               Date of Institution in Sessions Court: 22.11.2005
                   Date of transfer to this court:    1.12.2008
                               Date of Judgment:      22.05.2010

JUDGMENT

In brief, the prosecution story is that on 1.9.05 a DD No. 17 PP Shahbad Dairy was received, which was marked to SI Yog Raj for action. The crux of the said DD was that near Shahbad village turning near the tube well of Jai Singh one child was lying in an injured condition and police be sent to the spot.

2. On receipt of said DD No. 17 PP Shahbad Dairy, SI Yog Raj Singh reached the spot, where he met constable Subhash and constable Mandeep, who were already present there and at the spot one girl aged around 8 years was lying in an unconscious SC No. 100/08 FIR No. 327/05 2 condition and blood was also oozing out from her neck and blood was also oozing out from her head and her stomach was also burnt. Seening the condition of the said girl she was removed to M.B. Hospital on some private vehicle, while constable Mandeep guarded the spot. In the M.B. Hospital, the MLC of the injured child was obtained but no eye witness was found in the hospital. Thereafter, leaving the said child in the hospital, SI Yog Raj Singh again reached the spot, where he did not met any eye witness, and he wrote a rukka, on which an FIR U/s 307 IPC was registered at P.S. Bawana. Photographers were also called at the spot. The siteplan of the spot was also got prepared by SI Yog Raj Singh.

3. On 3.9.05 it became known to the IO that the mother and father of the injured girl had lodged a missing report at P.S. Gokul Puri vide DD No. 14A dt. 1.9.05 which was obtained by SI Yog Raj Singh and SI Yog Raj Singh also recorded the statement of the mother of the said child Madhu @ Champa U/s 161 Cr.P.C . On the identification of said Madhu @ Champa, accused Sanjay @ Pintu was arrested, who also confessed to his guilt vide his disclosure statement that he had taken Suman the injured child from her school in a TSR to sector 27 Shahbad Dairy area, where he attacked the said child with bricks and blade and as a result of which she became unconscious and taking her to be dead he ran away from the spot.

4. Thereafter, accused Sanjay @ Pintu was arrested in this case.

He also made a disclosure statement and in pursuant to his disclosure statement, his police remand was also obtained and he got recovered the blade, which he used for assaulting the said child Suman, which was also seized. SI Yog Raj Singh also tried to get recover the acid, which was used to burn the said child but despite his best efforts he could not get it recovered. The said minor girl Suman was also produced before the Ld. M.M and her statement U/s 164 Cr.P.C was also recorded. After obtaining the result on the MLC of injured, the relevant exhibits were sent to CFSL Rohini for Forensic Evaluation.

5. After completion of investigation(s), a charge sheet U/s 363/307 IPC was filed in the court for trial.

6. Upon committal of the case to the court of sessions, a charge U/s 363/307 IPC was framed against the accused vide order dt. 30.11.05 to which the accused pleaded not guilty and claimed trial.

7. Thereafter, the prosecution in order to prove its case, has examined 12 witnesses.

PW1 is Suman, the injured child, who has given two different versions, once when her examination in chief was recorded on 27.4.06, where she totally supported the prosecution version and secondly, when she was recalled for cross-examination on 11.2.08 when she turned hostile from her previous statement and stated SC No. 100/08 FIR No. 327/05 4 that she had deposed at the tutoring of the police officials.

PW2 is Madhu @ Champa, the mother of the injured child Suman and the wife of the accused, who has also similarly given two versions in the court, once in her examination in chief recorded on 27.4.06, when she totally supported the prosecution version and thereafter on 11.2.08, when she turned hostile from her previous version and resiled from her previous statement, stating that she had also deposed at the tutoring of the police officials.

PW3 is ASI Prem Singh, the duty officer , who had proved the copy of FIR Ex.PW3/A and endorsement on the rukka Ex.PW3/B. PW4 is Smt. Neelu, the teacher of Nagar Nigam Primary Model School(First shift) Gokul Puri, Delhi, where the injured child Suman was studying. She has turned hostile, as she has not supported the prosecution version.

PW5 is Constable Mandeep Singh, who on receipt of relevant information on 1.9.05 from PCR, that one girl was lying injured near the Delhi College of Engineering, went to the spot and carried out the initial investigation(s) alongwith SI Yog Raj Singh.

PW6 is constable Sachin, who also carried out some part in the investigation(s) including the arrest of the accused on 3.9.05.

PW7 is H.C. Subhash, who alongwith constable Mandeep reached near Delhi College of Engineering, where the injured Suman was lying in unconscious condition.

PW8 is Dr. Narender Kumar Solanki, from DDU hospital, who had examined the injured Suman on 1.9.05 vide MLC Ex.PW8/A. PW9 is ASI Ashok Kumar, who was the second IO of this case, who had carried out investigation(s) in this case after 28.9.05 and had filed the charge-sheet in the court.

PW10 is HC Rajpal, who alongwith the IO on 4.9.05 was present at the time of recovery of blade at the instance of accused, which he used to cause injuries to the injured child Suman.

PW11 is SI Mukhtiyar Singh, who had proved the DD No. 14A registered at P.S. Gokul Puri dt. 1.9.05, Ex.PW11/A, regarding the missing of the girl Suman from Gokul Puri area.

PW12 is SI Yograj Singh, the IO of this case, who has deposed regarding the investigation(s), as was carried out by him during the course of the present case.

8. Thereafter, the statement of the accused was recorded U/s 313 Cr.P.C, in which the defence of the accused was that he had been falsely implicated in this case, by the police in order to solve this case and some unknown person had inflicted the injuries upon his daughter and attempted to kill her and her step daughter Suman and her wife Madhu had deposed against him under pressure of the police officials. However, he chose not to lead any defence evidence.

9. I have heard the Ld. Counsel Ms. Sindhu Sakarwal as well as SC No. 100/08 FIR No. 327/05 6 Shri G.S. Guraya. Ld. Additional PP for the State.

10. Ld. Defence Counsel Ms. Sindhu Sakarwal, has argued that there is no evidence against the accused, as PW1 Kumari Suman has not supported the prosecution version in her cross-examination carried out by Ld. Defence counsel on 11.2.08 on which date she had stated that she had deposed at the tutoring of the police officials and as per the desires of the police officials and she did not knew the person who took her on 1.9.05 from the school and the accused was not the said person. Similarly, she has argued that PW2 Madhu, the mother of injured child Suman, has also stated in her cross-examination on 11.2.08, had also deposed at the tutoring of the police officials and she does not know the person who had taken her daughter on 1.9.05 from the school. Relying upon the said testimony(s) of PW1 Kumari Suman and PW2 Smt. Madhu, the Ld. Defence counsel has argued that the testimony of PW1 and PW2 have to be taken as a whole and not in isolation. Once, PW1 Kumari Suman and Smt. Madhu have not supported the prosecution version in their cross-examination and both of them have not stated that they have deposed in the court at the tutoring of the police officials, no reliance can be placed on their testimonies which had been given earlier at the tutoring of the police officials.

11. She has also argued that in the present case PW4 Smt. Neelu, the school teacher where said girl Suman was studying has also SC No. 100/08 FIR No. 327/05 7 not deposed against the accused and she had not supported the prosecution version that it was the accused who had taken away the said child from the school on 1.9.05. in her presence. Regarding the recovery of blade allegedly recovered at the instance of the accused pursuant to their disclosure statement, she had argued that the said recovery had been affected from an open place which was accessible to public at large and in these circumstances, she has argued that the accused deserves acquittal, as it is settled law that, if there are two views possible, one favouring the accused and other which goes against the accused, then the view which goes in favour of the accused has to be preferred.

12. On the other hand ld. Addl. PP for the State, has argued that the prosecution has been able to prove its case against the accused beyond any shadow of reasonable doubt, as PW1 the injured Suman had categorically supported the prosecution version in her testimony which was recorded on 27.4.06 regarding the time, place, manner of incident and the identity of the accused having caused injuries to her after taking her away from the school on the pretext that he wanted to deposit some money in her account by opening a bank account and PW2 has also supported the prosecution version in material particulars regarding the motive part, as she has categorically stated that accused was her second husband and after the marriage accused started beating her SC No. 100/08 FIR No. 327/05 8 daughters from the previous marriage namely Suman and Deepa, and he had also threatened her to leave the daughters with her parents, otherwise he will kill them, and she has also deposed that accused had threatened her that he will kill her daughter Suman within a weeks time. Ld. Addl. PP has also argued that the attempt of these witnesses during their cross-examination carried out on 11.2.08 to wriggle out from their earlier statements recorded in their examination in chief, wherein they had supported the prosecution version, shows that they have been won over by the accused, as their examination in chief was recorded on 27.4.06, whereas, their cross-examination was carried out on 11.2.08 almost after a gap of 22 months and in the intermediate period the accused had ample opportunities to win over the said witnesses. Ld. Addl. PP also argued that the turning hostile of PW4 the school teacher Ms. Neelu does not spoil the prosecution case, as the said teacher has categorically stated that on 1.9.05 the girl Suman was studying in her class and she was present in the first half, but she did not turn up the class after the lunch break, which leads sufficient corroboration to the testimony of PW1 that she had been taken from the school by the accused. He has also argued that in this regard the substantive testimony of PW1 has to be believed as she has categorically stated that it was the accused who had taken her away from the school on the pretext of opening bank account and SC No. 100/08 FIR No. 327/05 9 there is no reason why she would falsely depose against the accused, who was her step father, who would be providing food and shelter to her and her mother. He has also argued that recovery of blade lateron from the spot at the instance of accused pursuant to his disclosure statement also completely supports the prosecution version. Therefore, he has argued that the prosecution has been able to prove that the accused had carried out attempt to kill PW1 Suman after kidnapping her from the school, which is also corroborated by the medical evidence filed on the record, as the MLC Ex.PW8/A clearly corroborate the nature of injuries found on the body of the injured child Suman as per her testimony as PW1. Hence, he prayed that the accused deserves conviction.

13. I have gone through the rival contentions and have perused the record.

14. In the present case PW1 Suman in her deposition recorded on 24.4.06 has deposed that on Ist September last year accused who was her step father came to her school at about 10.00a.m. He took her out of the school saying that he wanted to deposit some money in her account and she was also told that her mother was already present in the bank. On the way he administered a medicine for fever to her and he also did not permit her to pick up her school bag saying that they will return to school very soon. They went on a three wheeler scooter and when they reached a lonely place, SC No. 100/08 FIR No. 327/05 10 accused put his hand on her mouth and hit a piece of brick on her head. He took out a blade from his pocket and slit her throat with the blade. He then took out a bottle from his pocket and poured an oil like substance on her stomach and left her behind at the spot. She regained her consciousness at the hospital. She also stated that her statement was also recorded before the Ld. M.M. U/s 164 Cr.P.C.

15. PW2 Smt. Madhu @ Champa, who was the mother of PW1 has stated that she was residing with her husband i.e. accused and she had 3 daughters two daughters were from her first husband and one was from accused and on 1.9.05 her elder daughter Suman went to school but she did not return, she made a call at 100 number to the police at 4.30p.m . She further stated that after her marriage with the accused in the year 2004, he started beating her daughters Suman and Deepa. He also threatened her to leave her daughters with her parents, otherwise, he will kill her daughters and about one week ago from the incident, her husband threatened her that he will kill her daughter Suman within a week's time and she had asked her husband about the Suman as she did not return from the school. Thereafter, she went to the school and asked the teacher, she told her that Suman was taken by her father, Sanjay at about 10a.m. She tried to search for her daughter, and police told her that her daughter was admitted in the hospital where she SC No. 100/08 FIR No. 327/05 11 identified her.

16. The examination in chief of PW1 and PW2 was carried out on 27.4.06, lateron on the prayer of the Ld. Defence counsel, the said witnesses PW1 and PW2 were allowed to be recalled for cross- examination vide order dt. 8.10.07. When the aforesaid witnesses were recalled for their cross-examination on 11.2.08 both of them took a different stand from their earlier statement recorded on 27.4.06, as PW1 stated that for the first time she was accompanied by the police officials in the court and police officials had tutored her and she had deposed as per the police officials and for the 2nd time, she was also accompanied by the police officials, and she has also deposed as per their desire and she does not know the person who took her on 1.9.05 from school and accused was not the said person.

17. Similarly, PW2 Smt. Madhu, also took a different stand and she also stated that she had deposed as per the tutoring of the police officials and for the 2nd time she was also accompanied by the police officials and she had deposed as per their desire and she does not know who was the person who took her daughter on 1.9.05 from school and the teacher Ms. Neelu did not tell her that accused Sanjay was the said person and that she had named the accused to be the person who had caused injuries to her daughter under some misconception.

18. From the cross-examination of PW1 and PW2 recorded on 11.2.08, it is apparent that both the witnesses had been won over by the accused in the integrum of 22 months, which elapsed between their examination in chief and their cross-examination carried out on 11.2.08 and in this regard the judgment of Hon'ble Supreme Court Khujji @ Surendera Tiwari Vs. State of M.P., 1991 Cr.L.J 2653, is clearly applicable to the facts of the present case, wherein it was held as under:

"Evidence of hostile witness cannot be rejected into merely because prosecution choose to treat him hostile and cross-examined him-

evidence of such hostile witness cannot be treated as affaced or washed off record altogether-same can be accepted to extent their version is found to be dependable on careful scrutiny thereof-if other evidence corroborate testimony of hostile witness same can be relied upon in reaching conclusions."

It has also been held in the said judgment at Para-7:

"The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination in SC No. 100/08 FIR No. 327/05 13 chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination in chief."

19. In view of aforesaid judgment, it is more than apparent that the accused who was the step father of PW1 Suman and husband of PW2 Madhu had won over both the said witnesses by putting pressure on them, to make them resile from their earlier statements given in the court on 27.4.06. It is not believable that a child of 8 years of age would depose falsely against her step father, if he had not done the criminal act, the very fact that in the first place she categorically deposed against the accused in her deposition on 27.4.06 shows that she was a truthful witness, as judicial notice can be taken of this fact that the child witnesses are not having the capacity to fabricate the evidence and because of their innocence they will always speak the truth.

20. Lateron, it seems that by putting pressure upon the said witness PW1 Suman, she had been made to resile from her earlier statement. The testimony of PW2 Madhu has also to be seen in the SC No. 100/08 FIR No. 327/05 14 similar light. She being the second wife of the accused had an ample reason to resile from her earlier statement, as probably she wanted to make peace with him and wanted to live with him under the same roof and there was no reason, why she would have falsely deposed against her real husband earlier. She has categorically deposed on 27.4.06 that the accused immediately after 2nd marriage used to beat her daughters including PW1 Suman and he had also threatened her to leave her daughters to her parents, otherwise he would kill them and he had also threatened one week before the incident that he would kill her. The aforesaid deposition of PW2 clearly provide clear cut motive on the part of the accused to cause serious injuries on the body of PW1.

21. Though, in the present case PW4 Ms. Neelu, the school teacher, where the PW1 was studying has not supported the prosecution version that it was the accused who had taken the said child from the said school in the 2nd half during the lunch break. However, she has categorically deposed that the said child was present in the class in the first half of 1.9.05 and she was absent in the 2nd half and she had also proved the attendance register in this regard which is Ex.PW4/A. The said assertion made by the said school teacher that PW1 Suman was present in the first half in the school on 1.9.05 has remained unchallenged.

22. This fact that PW1 Suman was present in the school in the first SC No. 100/08 FIR No. 327/05 15 half and the fact that PW1 has categorically deposed that it was the accused who had picked up her from the school on 1.9.05 at around 10a.m on the pretext that he wanted to take her to some place for opening the bank account and her mother was also present, clearly proves that it was the accused who had taken PW1 from the school on 1.9.05 without informing the school authorities and thereafter taking PW1 Suman to a lonely place, he had hit her with the piece of brick on her head and he had also took out a blade from his pocket and slit her throat with the blade and he also took out a bottle from his pocket and poured an oil like substance on her stomach.

23. The testimony of PW1 leaves no doubt that it was the accused who had caused such injuries on the body of PW1 Suman. The recovery of PW1 from a lonely place in the area of P.S. Bawana is proved by the testimony of PW5 Constable Mandeep and constable Subhash who had found her lying in an unconscious condition at a place near Delhi Engineering College in the area of P.S. Bawana, while she was having injuries on her neck and head and also on the stomach. Thereafter, she was shifted to M.B. Hospital, Pooth Khurd and nothing has come out in their cross-examination(s) which could cast any doubt on their testimony(s) in this regard. Though, PW10 H.C. Rajpal and PW12 SI Yograj Singh have also deposed that the accused after his arrest and pursuant to his disclosure statement SC No. 100/08 FIR No. 327/05 16 got recovered one blade from the bushes near the spot, but the said recovery of blade from an open plot of land does not inspire any confidence as PW10 H.C. Rajpal has admitted that the said place is an open area and the door of the room was opened.

24. Further PW12 IO/SI Yograj Singh, in his cross-examination has deposed that the plot is an open plot surrounded by a boundary. He does not remember the height of the boundary walls of the plot. There were multiple entrance(s) into the plot and the walls were also broken from several places. The testimony of PW10 and PW12 when read in conjunction regarding the recovery of blade at the instance of accused, does not inspire any confidence, as it is settled law that the recovery which is affected from an open place, which is accessible to public at large is no recovery in the eyes of law simply for the reason that the accused can at the most be fastened with the knowledge that some article was lying at such a place or accused may have seen somebody keeping the said article there.

25. Be that as it may, merely because the recovery of blade has not been proved in this case, does not in any way affect the prosecution story, as PW1 has categorically stated in her deposition which version of her has been found to be truthful and believable for the reasons discussed above, that it was the accused who slit her throat with a blade and secondly, the non-recovery of weapon SC No. 100/08 FIR No. 327/05 17 of offence used by the accused in this case is not fatal to the case of the prosecution.

26. From the testimony of PW1 and PW2 recorded on 27.4.06, the prosecution has clearly been able to prove the motive, manner, time and place of the incident.

27. However, in this case for the reasons best known to the IO, no doctor other than Dr. Narender Kumar Solanki PW8 had been cited as a witness in the list of witnesses, including the doctors who had given the opinion regarding the nature of injuries on the MLC of the injured PW1. Dr. Narender Kumar had only written words "fit for statement" on the said MLC Ex.PW8/A, and he had never examined the injured PW1 or had treated her nor he had given the opinion regarding the nature of injuries sustained by her on the said MLC. In the absence of said doctors being examined by the prosecution, the prosecution has failed to prove that nature of injuries which were caused on the person of PW1 were dangerous to her life, though, the prosecution has been able to prove from the testimony of PW1 that the accused had used a blade to slit her throat regarding which there is no doubt in view of the aforesaid discussion as a resultant prosecution has failed to prove that the accused had an intention to cause the death of PW1 or had taken an active step towards the commission of said act, by causing such injuries which would have been fatal or dangerous to life of PW1.

28. Consequently, the prosecution has failed to make out a case U/s 307 IPC. However, from the aforesaid detailed discussion, prosecution has been able to make out a case U/s 324 IPC only, as the corroborative medical evidence regarding the nature of injuries sustained by the PW1 has not been lead or proved on the record by the prosecution, simply because IO had not cared even to cite a single doctor in the list of witnesses during the trial, nor he made any prayer during the trial to examine any other important medical witness.

29. Regarding the offence U/s 363 IPC, it is the admitted case of the prosecution and the defence that the accused was the step father of the injured PW1 and was the husband of PW2 Madhu @ Champa.

30. The said offence U/s 363 CPC is not made out against the accused, as to make out an offence U/s 363 IPC, the prosecution had to prove that the accused had kidnapped the aforesaid girl Suman from the keeping of the lawful guardian of such minor girl, as the expression " lawful guardian" includes the legal guardian as well as the person who had become the guardian of the minor in a lawful manner. In the present case, as per the explanation to section 361 IPC, the word " lawful guardian" in the said section would also include any person lawfully entrusted with the care or custody of such minor or other person. It seems that the word SC No. 100/08 FIR No. 327/05 19 lawfully has been deliberately used in the said section, and it is of wider connotation than the words Legal Guardian and the word would mean, that whenever the relationship of a guardian and ward is established by means, which are lawful and legitimate, that relationship is intended to be included within the meaning of words lawful guardian as used in this Section, above legal position was held in Judgment AIR 1958 Bombay 381 State Vs. Ramji Vithal. The said judgment to my mind is squarely applicable to the facts and circumstances of the present case, and in this case the accused being the step father of PW1 Suman can be said to be the lawful guardian of the said minor girl , therefore, he simply could not have kidnapped her from his own lawful guardianship. Consequently, no offence U/s 363 IPC is brought home by the prosecution.

31. The net result of the aforesaid discussion is that prosecution has only been able to make out a case U/s 324 IPC against the accused beyond any shadow of doubt. Accordingly, the accused Sanjay @ Pintu stands convicted U/s 324 IPC. Now, to come up for hearing on the point of sentence on 26.5.2010.

Announced in the open court (Sanjeev Aggarwal) on dt. 22.5.2010. Addl. Sessions Judge:

Rohini Courts: Delhi.

IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V:

OUTER: ROHINI: DELHI SC NO. 100/08 FIR No. 327/05 P.S. Bawana U/s 324 IPC State Vs. Sanjay@ Pintu S/o Sh. Raj Kumar R/o Jhuggi No. E-73-B-22, Sanjay Colony, Gokul Puri, Delhi.

Order on the point of sentence: 28.5.10 Present: Sh. G.S. Guraya, Ld. Addl. PP for the state.

Ms. Sindhu Sakarwal, Ld. Counsel for the convict with the convict in person.

It is submitted by the Ld. Counsel for the convict, that the convict is having clean antecedents and he is not involved in any previous case and is a young person aged around 27 years and he has already spent about 2½ years in Judicial custody during the trial.

Therefore, it is prayed by the Ld. Counsel for the convict, that lenient view may be taken against him.

On the other hand Ld. Substitute PP for the state submits that strict punishment should be awarded to this convict, as he had attempted to kill her step daughter in most inhuman manner, by slitting her throat and pouring an oil like substance on her stomach and he further submits that a message should go to the society at large, that these type of crimes would not be allowed to go unpunished in a light way.

I have gone through the rival contentions, no doubt the convict had caused sharp injuries, on his step daughter by slitting her throat and pouring an oil like substance on her stomach, in an inhuman manner, as he was supposed to protect her, being her legal guardian instead of causing harm to her. Consequently, I am of the considered opinion that the ends of justice shall be met, if the convict is sentenced to the period already undergone by him during the trial U/s 324 IPC by extending benefit U/s 428 Cr.P.C. The convict is also SC No. 100/08 FIR No. 327/05 22 sentenced to pay a fine of Rs. 5,000/- U/s 324 IPC. In default of payment of said fine , the convict is directed to undergo SI for three months. The Ld. Amicus Curiae is discharged from this case. Copy of the judgment and order on the point of sentence be provided to the convict free of cost. File be consigned to record room.

   Announced in the open court           (Sanjeev Aggarwal)
   on dt. 28.5.10                        Addl. Sessions Judge:
                                          Rohini Courts: Delhi.




SC No. 100/08 FIR No. 327/05