Delhi District Court
State vs Mukesh Kumar on 13 December, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.42/10
FIR No.545/05
U/s 363/376/302 IPC
PS Okhla Industrial Area
State
Vs.
Mukesh Kumar S/o Munna Lal
R/o D Block, Bilu Ka Makan
Near Kela Devi Mandir
Lakadpur, Faridabad
Haryana
.......... Accused
Challan filed on : 07.10.05
Received by Fast Track Court on:19.10.2010
Reserved for Order on : 06.12.2010
Date of Pronouncement : 08.12.2010
JUDGMENT
Briefly stated the facts of the prosecution case are that on 12.06.05 complainant Sunita came to PS Okhla Ind. Area and got recorded her statement which is Ex.PW12/A. In her statement she has alleged that she is residing with her family in jhuggi S32/118 Sonia Gandhi Camp, Pul State Vs.Mukesh Kumar FIR no.545/05 Page No. 1 of 44 Prahladpur, New Delhi and she is permanent resident of village Bhangia, PS Dumria, PO Kevla Kalan, District Gaya, Bihar. Her husband is doing the work of barber in Sharma Market on the shop of Gyaneshwar. One boy Mukesh also used to work with her husband but he has left the job from there about 34 months back. He had visited her jhuggi once or twice. Mukesh came to her jhuggi in the morning on 12.6.05 and asked her for Rs. 1500/ for purchase of fridge. She told him that she will not give any money without the consent of her husband. Then he asked for Rs.150/ for purchase of grinding machine(masala pisne wali machine). But she refused. Then he took her daughter Neha aged about 3 years for getting toffee and to meet her father. He had told that he will leave Neha after about half an hour. When neither Mukesh nor Neha turned up after half an hour, she sent information to her husband through Rajesh, her neighbourer. Her husband came at the jhuggi and informed that Mukesh and Neha did not reach him at the shop. She suspects that Mukesh had taken her daughter somewhere after kidnapping her. Accused was arrested and his disclosure statement was recorded wherein he admitted his guilty. The investigation was done and after completing the investigation the accused was challaned to the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 19.10.05.
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3. The charge against the accused Mukesh has been framed u/s 364/376/302 IPC on 15.2.06 to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 13 witnesses.
5. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and ld.counsel on behalf of the accused I have perused the testimonies of all the PWS.
8. PW1 Jaleshwar is the owner of barber shop where father of deceased Neha was working and he has deposed in his testimony that he is State Vs.Mukesh Kumar FIR no.545/05 Page No. 3 of 44 running a barber shop. Accused Mukesh worked as barber for 15 days and thereafter removed from the work as his work was not satisfactory. One Manoj Thakur was also working at his shop. On 12.6.05 one person Rajesh came to him and enquired as to whether Mukesh has brought Neha and he replied that Mukesh has not come to his shop and Mukesh left the shop that he is going in search of Neha. He identified the dead body of Neha vide statement Ex.PW1/A.
9. PW2 Rajesh is the neighbourer of complainant Sunita. He has deposed that in his presence Mukesh took the police near empty container depot and pointed the place and stated that he murdered Neha with knife after committing wrong act and thereafter threw her dead body in the said container. The container was checked and it was found to contain naked dead body and frock, chappal and underwear of Neha were lying near the dead body. The same were seized by the police. Blood was lifted from the spot. He identified the shirt Ex.P1. He has further stated that accused pointed out the knife near railway line and accused stated that it was the same knife with which he murdered Neha. The seizure memo of knife is Ex.PW2/A and it was taken into possession vide memo Ex.PW2/B. He signed the memos Ex.PW2/C & D. He identified the clothes, knife and tagri(thread worn around waist).
State Vs.Mukesh Kumar FIR no.545/05 Page No. 4 of 44
10. PW3 Dr.Sanjeev Lalwani has conducted the post mortem on the dead body of Neha and proved the Post Mortem report. He also gave the subsequent opinion after examining the weapon of offence and identified the knife ExP4 before the court.
11. PW4 W/ASI Shanti has deposed that she recorded FIR no. 545/05 u/s 363 IPC on the basis of rukka sent by SI Sunil. The copy of FIR is Ex.PW4/A.
12. PW5 HC Ram Pal has deposed that he was summoned by SI RS Naruka and he reached at container bearing PCIU 3286726 measuring about 20 feet which was empty and its door was open and dead body of a girl aged about 3 years were found in naked condition. He took 15 photographs which are Ex.PW5/B1 to 15 and negatives are Ex.PW5/A1 to A15.
13. PW6 Ajay Pratap Singh is the witness who was working in container depot and he has deposed that he had seen the deadbody of a girl child in a naked condition lying in the container. Chappal and blood was also lying there. He informed the police
14. PW6A Ct.Jai Prakash has deposed that on 12.6.05 while State Vs.Mukesh Kumar FIR no.545/05 Page No. 5 of 44 present in beat, SI Sunil alongwith complainant Sunita, her husband Manoj, Rajesh s/o Rajpal and accused Mukesh met them in Sonia Gandhi Camp. Sunita was left in jhuggi and they proceeded to Empty Container Depot where accused pointed out towards one container and told them that he had brought Baby Neha in the said container and committed rape with her. He also told that he cut the stomach of Neha with a knife and committed her murder. On opening container dead body was found in naked and her belongings were lying aside. Pointed out memo is Ex.PW2/C. Crime team took the photographs. The dead body was seized vide memo Ex.PW6/A. The belongings of deceased were seized vide memo Ex.PW2/A. Accused got recovered a blood stained knife which was seized vide memo Ex.PW2/B. Pointing out memo of the place of recovery of knife is Ex.PW2/D. He identified the case property.
15. PW7 Insp.A.M.Gorwal has deposed that Insp.Sunil informed him from container depot about recovery of dead body of kidnapped girl and thereafter he alongwith staff reached there where accused Mukesh and police team was present alongwith supervisor Ajay Pratap Singh. Dead body was lying inside the vacant container and belongings of deceased were lying aside. He called crime team who took the photographs. The articles lying at the spot were taken into possession vide memo Ex.PW2/A. He conducted inquest proceedings Ex.PW7/A. He prepared the rough site State Vs.Mukesh Kumar FIR no.545/05 Page No. 6 of 44 plan Ex.PW7/B.. Accused got recovered knife, sketch of which is Ex.PW7/C and pointing out memo of knife is Ex.PW2/D which was taken into possession vide memo Ex.PW2/B. On 13.6.05 post mortem was got conducted and blood sample was taken into possession vide memo Ex.PW7/E. He seized the articles vide memo Ex.PW7/F and after post mortem the dead body was handed over to Manoj Thakur vide receipt Ex.PW7/G. SI Mahesh prepared the scaled site plan and he sent the exhibits to FSL and collected the reports which are Ex.PW7/1 and Ex.PW7/J and K. He identified the case property.
16. PW8 SI RS Naruka is the witness from crime team and he reached at Tuglaqabad where dead body of girl was lying in container. A blue coloured T.Shirt, Hawai Sleeper and one light blue coloured underwear were also lying on the spot. He inspected the spot and Ct.Rampal took the photographs. He submitted his report which is Ex.PW8/A.
17. PW9 HC Shokender has deposed that he was on patrolling duty on 12.6.05 when SI Sunil Kumar, Rajesh Kumar and Manoj Kumar met him and accused Mukesh was also with them. He was directed to join the investigation and then they reached in container depot where accused Mukesh pointed out a container and disclosed that he had raped the girl and State Vs.Mukesh Kumar FIR no.545/05 Page No. 7 of 44 murdered her inside the empty container. They entered into the container and found a naked dead body of a girl aged about three years and there was mark of injury between stomach and private park of the body. Blue Tshirt, light blue under wear, sleeper and Tagari was also lying there. Accused Mukesh thereafter pointed out railway line where he had hidden the knife with which he had killed the deceased girl. Pointing out memo is Ex.PW2/B. The dead body was sent for post mortem. He identified the knife Ex.P1.
18. PW10 Sunita is the complainant and mother of deceased Neha who was raped and murdered by accused. She narrated the entire incident and proved the arrest memo of accused Ex.PW10/A, his personal search memo Ex.PW10/B and his disclosure statement Ex.PW10/C. She identified the clothes of her daughter.
19. PW11 SI Mahesh has prepared the scaled site plan which is Ex.PW11/A.
20. PW12 Insp.Sunil Kumar is the first IO who recorded the statement of Sunita E.PW12/A, prepared rukka Ex.PW12/B and got the case registered. Complainant told him that her daughter had been taken by Mukesh. He interrogated Mukesh and recorded his disclosure Statement State Vs.Mukesh Kumar FIR no.545/05 Page No. 8 of 44 Ex.PW10/C. Thereafter accused got recovered the dead body from the container which was taken into possession vide memo Ex.PW6/A. The articles were seized vide memo Ex.PW2/A. Accused got recovered the knife vide pointing out memo Ex.PW2/D and sketch of knife is Ex.PW7/C. Accused was medically examined and case property was deposited in the malkhana. After medical examination doctor handed over blood gauze of accused, underwear, pubic hair. Post mortem was conducted and dead body was handed over to the father of deceased.
21. PW13 Sh AK Srivastav has examined the exhibits of this case and given his report Ex.PW7/I,J and K. the forwarding letter of Direction is Ex.PW13/A.
22. In the overall analysis of the testimonies of all the witnesses it is revealed that PW1 Jaleshwar is the owner of the shop where father of deceased as well as Mukesh used to work, PW2 Rajesh is the neighbourer of complainant, PW6 Ajay Pratap is working in container depot and PW10 Sunita is the complainant and mother of deceased Neha. These witnesses are the public witnesses. On perusal of the testimonies of these witnesses, it is revealed that none of these witnesses has witnessed the present case incident with their own eyes. So, there is no eye witness in this case and this case depend on circumstantial evidence. It is well settled law that observed State Vs.Mukesh Kumar FIR no.545/05 Page No. 9 of 44 by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujrat 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof it has been indicated by the court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. So, in this case first the prosecution has to establish the presence of accused Mukesh Kumar at the spot and with the deceased and that he took deceased Neha with him on the alleged date of incident. To prove this circumstance, the prosecution has examined PW10 Sunita who is the complainant in this case. She has stated in her statement that in the year 2006 she was residing in jhuggi at Badarpur. Accused Mukesh visited her house once prior to the incident. Accused was working in the shop of Jaleshwar alongwith her husband but he left the shop. In the year 2006 Mukesh came to her house at 8 a.m and asked a sum of Rs.1500/ from her State Vs.Mukesh Kumar FIR no.545/05 Page No. 10 of 44 as the same was to be given to her husband. She refused. Then he took her daughter Neha alongwith him on the pretext of giving toffee to her despite her protest. Accused exhorted that he will bring Neha after fetching her the toffee. Accused took Neha away but did not return back. When her daughter did not return, she asked her neighbourer to go to the shop of her husband and enquire about Mukesh and her daughter. Rajesh came back alongwith her husband to her house and she narrated the entire story. Her husband went in search of daughter. However, he met accused Mukesh on the way who was in a drunken condition. Her husband asked Mukesh in respect of daughter Neha but he replied that he has already left Neha. There upon her husband informed the police on telephone. Police came and eqnuired from accused regarding Nera and he disclosed that he had killed Neha and her dead body is lying in a boggie of the train under the Badarpur pul. Accused was arrested vide arrest memo Ex.PW10/A and his personal search was conducted vide memo Ex.PW10/B. He made disclosure statement which is Ex.PW10/C. When accused took her daughter she was wearing light blue Tshirt and light blue chappal. She was wearing a halka kala sa underwear. In cross examination conducted by the Ld. APP for the State she admitted that the date of incident is 12.6.05. Photograph Ex.P5/1 to 15 are shown to her and she identified the same are of her daughter Neha. She identified the cloths of Neha as blue Tshirt Ex.P1, Chappal Ex.P2, Underwear Ex.P3, Tagri Ex.P5 and she has stated that these were worn by State Vs.Mukesh Kumar FIR no.545/05 Page No. 11 of 44 her daughter on the day of incident. I have also perused her cross examination. She has stated in cross examination that she has seen accused Mukesh before incident and she used to know him. On the date of incident Mukesh had come to her residence at about 8.00 a.m. By putting this question it has been admitted by the defence that on the day of incident accused Mukesh had come to the house of complainant at 8 a.m. She told Rajesh that her daughter had been taken by Mukesh and did not turn up at about 9 a.m. She does not know at what time her husband and Rajesh came back. It takes about 510 minutes to reach the shop where her husband used to work. Her husband Mukesh and Rajesh came back to her house at about 11 a.m. Mukesh was drunken when he came to her house. At about 12 noon police came to their residence. She put her thumb impression on papers in police station at about 4 p.m. She has stated to the police that accused was in drunken condition when he reached her house. She went to PS after her husband and Mukesh had reached there, it was about 4/5 p.m. Accused had disclosed in the presence of police and her husband that he had killed her daughter. She is illiterate. None of the police official has tutored her as how to depose in the court. In view of the statement of PW10 Sunita, mother of deceased she has specifically stated in her statement that Neha, her daughter has been taken by accused Mukesh on 12.06.05 in the morning. Allegedly Neha was found murdered in naked condition in the container on the same day. Even in cross examination it has been admitted State Vs.Mukesh Kumar FIR no.545/05 Page No. 12 of 44 by the defence counsel that accused Mukesh had visited the house of PW10 at about 8 a.m. No defence evidence has been led by the accused in this respect. In his statement u/s 313 Cr.PC and in reply to Question no.1, accused has replied in affirmative that on 12.6.05 at about 8 am he went to the jhuggi of Smt. Sunita where Sunita and her daughter Neha were present and he was known to them as Sunita's husband was working as barber in the same shop where he was working. So, presence of accused at the house of complainant has been successfully established by the prosecution. Further PW10 has stated that accused Mukesh has taken deceased Neha with him on 12.6.05. In reply to Question no.3 of statement u/s 313 Cr.PC, accused Mukesh has stated that he had taken deceased Neha and dropped back her to her house at about 9.30 a.m. So, it has been admitted by accused Mukesh that Neha has been taken by him on 12.6.05. Considering the deposition of PW6 Ajay Pratap Singh, an employee of container depot where the dead body of Neha was found, he, in cross examination has stated that he notice the dead body of girl at about 2.10 p.m. So, it is clear that murder had taken place before 2.10 p.m. Accused has stated in his statement that he left Neha at her house at about 9.30 a.m. But no defence evidence has been led by accused to prove that Neha was left by him at her house at 9.30 a.m. In view of the admission by accused in his statement u/s 313 Cr.PC, that he had taken deceased Neha on the 12.6.05 with him, the prosecution has been able to prove that deceased Neha was lastly seen with accused Mukesh by State Vs.Mukesh Kumar FIR no.545/05 Page No. 13 of 44 PW10 and even last seen evidence has been admitted by the accused himself in his statement u/s 313 Cr.PC. So, the presence of accused as well that he took Neha and that Neha was lastly seen with accused Mukesh on 12.6.05 has successfully been proved by the prosecution beyond any reasonable doubt. Allegedly Neha has been murdered on 12.06.05 itself and her dead body was seen by PW6 at about 2.00 p.m in the container. So, this clearly connect the present accused Mukesh with the present case crime.
23. PW1 Jaleshwar is the witness who was running barbar shop where father of deceased Neha as well as accused were working together. Both PW1 as well as PW10 has stated that before the date of incident accused had been removed from the shop as his work was not satisfactory.PW1 has not been cross examined by the Ld. defence counsel. So, it has been established by the prosecution that father of deceased as well as accused Mukesh were working together before this present case incident. Further PW1 has stated that on 12.6.05 one persons Rajesh came to him and enquired from him whether Mukesh had brought Neha to his shop. He replied in negative. Thereafter Manoj left his shop saying that he is going in search of Neha and thereafter he did not come back. PW2 Rajesh is the witness who came to the shop of PW1 for enquiring about Mukesh and Neha. Both PW1 and PW2 have given corroborative statements in this State Vs.Mukesh Kumar FIR no.545/05 Page No. 14 of 44 respect. In cross examination he has stated that he used to see accused Mukesh visiting the house of parents of deceased perhaps they were friends. He had not told in his statement before the police that accused took Neha on the pretext of getting her toffee but he has seen this and this is a fact. He admitted that mother of Neha told him about the fact that accused had taken Neha on the pretext of getting her toffee. Rest of the testimony of PW2 is regarding joining investigation which will be discussed a bit later alongwith the testimonies of police officials. However this circumstance also connect the accused with the present case crime.
24. Another circumstance is arrest of accused Mukesh. PW2 Rajesh has stated in cross examination that he does not remember the name of those two persons who had accompanied them to apprehend the accused to near theka at Surajkund. It was about 12 - 12.30 p.m when they brought the accused at jhuggi from near theka. Pw10 Sunita has stated that her husband went in search of Neha. However, he met accused Mukesh on the way who was in a drunken condition and her husband asked Mukesh in respect of daughter Neha but he replied that he has already left Neha. Thereafter, her husband informed the police. Police came and enquired from accused regarding Neha and he disclosed that he had killed Neha and her body is lying in a boggie of train under the Badarpur Pul. Accused was arrested vide memo Ex.PW10/A and his personal search was conducted State Vs.Mukesh Kumar FIR no.545/05 Page No. 15 of 44 vide memo Ex.PW10/B. PW10 in cross examination has stated that she put her thumb impression on papers in PS at about 4 p.m. She has not seen any articles recovered by police during the personal search of accused. No question has been put to PW10 by the Ld. defence counsel that accused has not been arrested by the police in her presence or that arrest memo does not bear her thumb impression. PW6A Ct.Jai Prakash has stated that he alongwith Ct.Shokender were present in their beat in the area of PS where SI Sunil Kumar alongwith complainant Sunita, her husband Manoj, Rajesh and accused Mukesh met them in Sonia Gandhi Camp and thereafter accused Mukesh pointed out the place of incident. In cross examination he has stated that accused was arrested in his presence. PW9 HC Shokender was with PW6A Ct.Jai Prakash and he has also stated that accused Mukesh was with SI Sunil, Rajesh Kumar and Manoj Kumar on 12.6.05 when he joined the investigation. No question has been put to PW6A or PW9 by the Ld. defence counsel that accused Mukesh was not present at that time with SI Sunil. PW12 SI Sunil Kumar in cross examination has stated that accused was arrested at jhuggi of complainant. This version of PW12 corroborate the version of PW2 Rajesh that accused was brought to Jhuggi as well as of PW10 that accused was arrested in the jhuggi by the police. So, arrest memo and personal search memo has successfully been proved by the prosecution. Ld. counsel for the accused has stressed that there are contradictions in the timings deposed by Pws regarding arrest of accused. I State Vs.Mukesh Kumar FIR no.545/05 Page No. 16 of 44 have considered the same but these contradictions are of trivial nature which can be possible due to lapse of time. So, this circumstance also connect the accused with the present case offence.
25. PW10 Sunita has stated that the disclosure statement of accused was recorded which is Ex.PW10/C. PW12 SI Sunil has also stated that he interrogated the accused and recorded his disclosure statement.PW2 Rajesh who is the public witness has stated that in his presence accused Mukesh took police official near empty container depot and there he pointed towards container and stated that he murdered Neha with knife after committing wrong act with Neha and thereafter threw her dead body in the said container. This version of PW2 has not been objected to by the Ld. defence counsel. He has further stated that on checking the container it was found to contain naked dead body of Neha and her belongings were lying there near the dead body. Blood was also lying there. These articles were seized by the police. He identified these articles. On cross examination by Ld. APP he identified the Tagri of deceased. PW10 Sunita has also identified the clothes and belongings of her deceased daughter before the court. PW6A Ct.Jai Prakash and PW9 HC Shokender have also corroborated the version of PW2 Rajesh, public witness that accused pointed out the container where he had raped the girl and murdered her inside the empty container and the dead body was found naked having State Vs.Mukesh Kumar FIR no.545/05 Page No. 17 of 44 injury between stomach and private part of the body. All the three witnesses have further corroborated the version of each other that accused pointed out the railway line where he had hidden the knife with which he had killed the deceased and he got recovered the knife. Their version has further been strengthened by PW12 Insp.Sunil Kumar as well as PW7 Insp.AM Gorwal. PW2 in cross examination has stated that he had signed some papers in police station and some at the place where container was lying. Till the time the police had taken the accused for recovery they were in PS, it was approx 1212.30 p.m. No question has been put to PW2 by the Ld. defence counsel that the accused has not pointed out the place of incident or place where he had hidden the weapon of offence i.e. knife. PW6A in cross examination has stated that he had seen the articles lying inside the container. IO prepared pointing out memo, seizure memo of the dead body, recovery of weapon of offence i.e. knife, site plan and IO prepared the seizure memos of articles lying in the container near the dead body and he also lifted the sample from spot and also prepared the seizure memo of the same. Disclosure statement of accused was recorded in his presence at Sonia Gandhi Camp. He was also present at the time of recovery of weapon. He admitted that disclosure statement of accused bears his signatures. The knife was having wooden handle and blade was covered with blood at the time of recovery. He has seen the knife at the spot and in the court during trial. By putting these questions to the witness, Ld.defence State Vs.Mukesh Kumar FIR no.545/05 Page No. 18 of 44 counsel has strengthened the case of the prosecution as each and every recovery, seizure and disclosure statement has been admitted in cross examination by the defence. PW9 HC Shokender Pal has stated in cross examination that IO did not interrogate the accused in his presence. SI told him that a girl had been kidnapped by accused and after raping her he had killed her and dead body has to be recovered. He admitted that it is not recorded in his statement u/s 161 Cr.PC and he has stated that same as this question has been asked to him. By putting this question, defence has confirmed about the facts of the case. In cross examination PW9 has further stated that inside container dead body, one blue T shirt, light blue underwear, slipper, tagri and some blood stains were found. There was stains of blood on the knife which was recovered between the track of railway line at the instance of accused. The knife was vegetable cutter type knife having brinjal coloured handle. He signed the seizure memo of knife. Here defence has admitted that the knife in question has been recovered at the instance of accused and place of recovery of knife has also been proved. PW10 Sunita in cross examination has stated that accused had disclosed that he had killed her daughter, in the presence of police and her husband. PW10 Sunita is an illiterate lady but she has given consistent statement before the court and she has even stated in cross examination that none of the police official has tutored her as to how to depose in the court. PW12 Insp. Sunil Kumar has also stated that accused pointed out the container State Vs.Mukesh Kumar FIR no.545/05 Page No. 19 of 44 where he committed rape and murder of deceased Neha and thereafter he got recovered the knife i.e. weapon of offence. PW7 Insp.AM Gorwal has prepared the sketch of knife which is Ex.PW7/C and its seizure memo Ex.PW2/B. The knife is Ex.PW2/B4. PW12 Insp.Sunil in cross examination has stated that it is correct that complainant Sunita was present while recording the disclosure statement of accused and she is cited as witness to disclosure statement. So, admission has come on record on the part of defence that disclosure statement of accused has been recorded by the police in the presence of complainant Sunita and in her statement PW10 Sunita has clearly stated that accused has disclosed to the police that he committed murder of her daughter. PW12 has further stated that he was present when weapon of offence, knife was recovered near railway track at the pointing out of accused and he has signed the recovery memo of knife. Admission has again come on record that knife has also been recovered at the instance of accused Mukesh. PW12 has identified the photograph of container in which the dead body was found lying and in cross examination he has stated that it is correct that the dead body of deceased was recovered from the same container of which the photograph are place on record. PW6 has stated that he noticed the dead body in container. PW2 has also corroborated the version of PW6. Both are public witnesses. Defence has also admitted that the dead body was found in the container. So, place of recovery of dead body of deceased girl Neha has been proved by the State Vs.Mukesh Kumar FIR no.545/05 Page No. 20 of 44 prosecution. PW7 Insp. AM Gorwal has further stated in cross examination that length of knife was 19 cm, blade was 10 cm and handle was 9 cm and he prepared the pointing out memo of recovered knife. There was blood stains on the knife when it was recovered. Even by way of cross examination the defence has further strengthened the case of the prosecution. The testimonies of police witnesses has been corroborated by the testimonies of PW2, 6 and 10 regarding investigation and they have deposed consistently in this case. On the basis of disclosure statement Ex.PW10/C of accused dead body of Neha as well recovery of weapon of offence i.e. knife has been effected. So, his disclosure statement is admissible in evidence. In view of the above discussions of the evidence of PWS, I am of the view that each and every witness has given consistent statement in respect of the investigation and therefore the prosecution has proved the place of incident i.e. container, pointing out memo by accused Mukesh, pointing out of place where knife has been thrown as well as recovery of knife. So, these circumstances also connect the accused with the present case offence.
26. PW3 Dr. Sanjeev Lalwani has conducted the post mortem on the dead body of Neha, 3years. On examination he found rigor mortis present all over the body. Dried blood stains were present over both lower limbs, chest abdomen and both upper limbs. He found the following State Vs.Mukesh Kumar FIR no.545/05 Page No. 21 of 44 injures:
1. Linear abrasion of size 4 cm with contusion 1 x 1 cm on left side chin.
2. Multiple linear cut marks, horizontally placed of size 6 to 18 cm on anterior chest wall situated 5 cm below nipple skin deep with clotted blood.
3. Incised wound of size 5x2cm x bone deep with clotted blood at right side of injury no.2 on anterior chest wall.
4. Linear cut wound on thoraco abdominal region anteriorly 10 cm in length situated 4 cm below injury no.2.
5. Incised wound of size 19x19 cm x abdominal cavity on anterior abdominal wall extending from 4 cm below xiphisternum to 1 cm above anal opening involving vaginal structures and exposing abdominal contents. There were tears in the stomach of size 5x4 cm on anterioro superior surface with spilling of contents. Small and large intestine alongwith mesentry and omentum were found cut at multiple places with gangrenous changes of intestine with mesentric haemetomos. Urinary bladder and vaginal vault involving pubic symphasis were splitted into two fragments with clotted blood.
27. The cause of death has been opined as haemorrhagic shock due to ante mortem injury no.5 which was sufficient to cause death in ordinary course of nature. Injury no.5 was caused by sharp edged weapon. The post mortem report is Ex.PW3/A. He preserved blood sample, gauze piece alongwith two anal and vaginal swabs. He has also given the subsequent State Vs.Mukesh Kumar FIR no.545/05 Page No. 22 of 44 opinion regarding weapon of offence and after examination he opined that injuries no.2,3,4 &5 could have been caused by the given knife. He proved the opinion as Ex.PW3/A. Even PW3 has identified the knife as Ex.P4 which was examined by him. In cross examination he denied the suggestion of Ld. defence counsel that the injuries as mentioned in post mortem report could be cause by strike of a moving vehicle having sharp edges with the body. No question/suggestion has been put by the ld. defence counsel to PW3 that he has not conducted the post mortem on the dead body of Neha or that he did not examine the weapon of offence and gave subsequent opinion. So, post mortem report Ex.PW3/A as well as subsequent opinion at point A1, A2 and A3 have been proved by the prosecution. PW3 has specifically stated that injuries found on the dead body of deceased were possible by the knife Ex.P4 examined by him. No question has been put by the Ld. defence counsel that he has not examined the knife. So, the prosecution has proved that injuries found on the dead body of deceased Neha were caused by the weapon of offence i.e. knife examined by PW3. The said knife has been recovered at the instance of accused from near railway track and recovery of knife has already been proved by the prosecution. So, medical evidence and subsequent opinion by PW3, both connect the accused with the present case crime.
28. PW4 WASI Shanti is the FIR recorder and he has brought the State Vs.Mukesh Kumar FIR no.545/05 Page No. 23 of 44 FIR register copy of which is Ex.PW4/A. Her testimony has been corroborated by PW12 Insp. Sunil Kumar gave rukka for registration of FIR. The copy of FIR is available on file. It was registered at 2.20 p.m. As per arrest memo accused was arrested at 4.15 p.m. So, plea of defence counsel that accused was arrested before registration of FIR has no force. Ld.counsel has drawn the attention of the court on different timings and recording of FIR. However, it is well settled law that FIR is not a substantive piece of evidence. Ld.defence counsel further submitted that the copy of FIR has been seen by the Ld.MM on 23.06.95 i.e. after about 11 days of recording of FIR. The FIR in this case has been registered u/s 363 IPC first and thereafter, after investigation challan was filed u/s 302/376 IPC. Since the FIR is not a substantive piece of evidence, the delay of 11 days in sending the copy of FIR to Ld. MM would not weigh in favour of the accused because it is not the delay in recording the FIR. So, copy of FIR has been duly proved by the prosecution in this case.
29. PW5 HC Ram Pal is the witness from crime team and he also reached at the spot where dead body of girl aged about 3 years was found in the container in naked condition. He proved the negatives Ex.PW5/A1 to 15 and print photographs Ex.PW5/B1 to 15. PW8 SI RS Naruka has prepared his report which isEx.PW8/A. I have also perused the said photographs. These photographs shows that brutal act has been committed by the State Vs.Mukesh Kumar FIR no.545/05 Page No. 24 of 44 accused. A naked child aged about 3 to 5 years is lying naked and smeared with blood. Her stomach has been cut to 1 cm above anal opening involving vaginal structures and exposing abdominal contents. Her clothes/belongings are lying aside. No question has been put to PW5 that he did not take the photographs. So, photographs Ex.PW/B1 to B15 has been proved by the prosecution.
30. PW6A Ct Jai Prakash has stated that the post mortem on the dead body of deceased Neha was conducted. PW7 Insp.AM Gorwal has summoned the crime team who took the photographs and he lifted the exhibits from the spot vide memo Ex.PW2/A. He conducted the inquest proceedings Ex.PW7/A and took the dead body into into possession vide memo Ex.PW6/A. He prepared rough site plan Ex.PW7/B.He prepared the sketch of knife Ex.PW7/C and recorded the statements of witnesses. He got conducted the post mortem and taken into possession the sealed pullanda containing vaginal swab, a sealed bottled containing anal swab of the deceased, blood sample vide memo Ex.PW7/E. He also took into possession the underwear of accused, blood sample and pubic hair with sample seal vide memo Ex.PW7/F.He sent exhibits to FSL. He identified the exhibits. In cross examination he has stated that he has not called any finger print expert as there was no chance prints available. No finger print were detected by crime team on weapon of offence. So, it has been made State Vs.Mukesh Kumar FIR no.545/05 Page No. 25 of 44 clear by the defence that there was no finger prints available at the spot. He collected the sample exhibits from the dead body through autopsy surgeon i.e Anal swab, vaginal swab and blood sample of the deceased. At the spot he met SI Sunil, Ct. Shokender, Ct. Jai Parkash, public witness Rajesh and Sh. Ajay Pratap,Sh. Manoj Kr father of deceased girl. He cannot tell the colour of container. Crime team consists of SI RS Naruka and one HC Photographer. Exhibits lifted from the spot include T shirt, one frock, one pair chappal and one tagri. He added sec.376 after disclosure of accused . PW9 HC Shokender was in the investigation with PW6A Ct.Jai Prakash and IO PW12. PW11 SI Mahesh has prepared the scaled site plan . No question has been asked by the ld. defence counsel that he has not prepared the scaled site plan. So, site plan Ex.PW11/A has been proved by the prosecution. PW10 Insp. Sunil Kumar is the first IO and he deposed and corroborated the testimonies of other police witnesses in respect of the investigation. Each witness of prosecution has given consistent and corroborative statement in this case and in cross examination their testimonies could not be shattered by the Ld. defence counsel. I have found some contradictions in the testimonies of witnesses adduced by the prosecution but they are of trivial nature and can be overlooked in view of the Judgement Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155.
State Vs.Mukesh Kumar FIR no.545/05 Page No. 26 of 44
31. To further connect the accused with the present case offence, the prosecution has examined PW13 AK Srivastava, Assistant Director (Biology) FSL, Rohini. He has examined the exhibits lifted by the IO as well as clothes etc handed over to him by the doctor. He proved the report of examination as Ex.PW7/1 to Ex.PW7/K. I have also perused the said result. Ex.PW7/I and K suggest that blood was detected on Ex.1 T Shirt, Ex.3 one piece of thread (Tagri), Ex.5 a piece of cotton wool swab described as blood in cotton wool, Ex.6 a piece of cotton wool, Ex.9a&b two pieces of cotton wool swab wrapped on a small wooden stick described as vaginal swab of deceased, Ex.11 a piece of gauze cloth having dark brown stains and Ex. 13 i.e. a piece of gauze cloth having dark brown stains. Blood could not be detected on Ex.2 one pair of sleeper, Ex.4 one underwear, Ex.7 four black filamentous material described as Hair, Ex.8 one knife, Ex.10a &10b two pieces of cotton wool swab wrapped on a small wooden stick described as Anal swab of deceased, Ex.12 one underwear and Ex.14 some black filamentous material described as pubic hair of accused. Human semen was detected on Ex.1 Tshirt having few dirty stains described as Tshirt of deceased, Ex9a&9b two pieces of cotton wool swab wrapped on a small wooden stick described as Vaginal swab of deceased, and Ex.12 one underwear. State Vs.Mukesh Kumar FIR no.545/05 Page No. 27 of 44 Semen could not be detected on Ex.4 one underwear sealed with the seal of AM , Ex.10a& 10b two pieces of cotton wool swab described as Anal Swab of deceased and Ex.14 some black filamentous material described as pubic hair of accused. As per report of biology human blood of 'B' Group was detected on Ex.1, Tshirt, Ex.9a cotton wool swab, Ex.9b cotton wool swab, Ex.11 Gauze piece, Ex.13 gauzed piece and semen of 'B' Group was detected on Ex.1 Tshirt, Ex.9A&B cotton wool swab and Ex.12 underwear.
32. Considering the above discussed FSL result it is revealed that Tshirt of deceased, Vaginal swab of deceased and Ex.12 underwear of accused Mukesh all bears the 'B' Group semen stains. So, it is crystal clear that vaginal swab of deceased was having the same group semen stain as that of accused Mukesh. This further makes clear that accused Mukesh has committed the rape of deceased Neha. In Parikh's Textbook of Medical Jurisprudence and Toxicology, it is stated that sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to State Vs.Mukesh Kumar FIR no.545/05 Page No. 28 of 44 the genitals or leaving any seminal stains. However, in the present case in hand seminal stains were found as per FSL result. This circumstance also connect accused Mukesh to the present case incident.
33. Blood could not be detected on the weapon of offence i.e. knife as per FSL result. The doctor PW3 who conducted the post mortem examination has given subsequent opinion that injuries sustained by the deceased were possible with the knife examined by him. It is stated in AIR 1976 SC 2423 in para 8 that : "It is the duty of the prosecution and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with the weapon. Failure to do so may sometimes, cause aberration in the course of justice." In this case knife has been produced before the doctor who conducted the post mortem. The knife was recovered at the instance of accused from near railway line and it was recovered in the presence of public witness PW2 Rajesh. Accused has himself admitted in his statement u/s 313 Cr.PC that he took deceased Neha on the alleged day of incident in the morning and thereafter she was found murdered in State Vs.Mukesh Kumar FIR no.545/05 Page No. 29 of 44 noon time. Admission of accused that he took deceased Neha is one of the strongest circumstance in this case to connect the accused with the present case offence. So, non presence of blood on the knife would not weigh in favour of accused.
34. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In this case PW10 Sunita complainant has stated that accused was known to her and her husband as previously he used to work with her husband. He asked her for Rs.1500/ but she refused State Vs.Mukesh Kumar FIR no.545/05 Page No. 30 of 44 and then he took her daugther Neha alongwith him on the pretext of giving her toffee. It has been admitted by accused that he took deceased Neha with him. From the photographs available on file, the dead body of child Neha is lying in naked condition. It also shows injury as her stomach has been cut from near her private part to chest. As per FSL result semen of 'B' group which is also the semen group of accused was detected. Allegedly accused was apprehended in drunken condition as per deposition of complainant when he came to her house. So, it is crystal clear that accused Mukesh has raped her and after committing such an act he committed her murder.So, the motive in this case was rape and it has been established by way of FSL result.
35. During the course of arguments Ld. defence counsel has drawn the attention of the court on various contradictions in the testimonies of witnesses as well as rukka and regarding recording of FIR. It is stated in AIR 1981 SC 1237 that : "The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects there".
36. I have considered the submissions of the Ld. counsel, but State Vs.Mukesh Kumar FIR no.545/05 Page No. 31 of 44 the contradictions pointed out by the Ld. defence counsel are of trivial in nature and can be over looked by the court as these can be possible due to lapse of time. It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.71011, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: '10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'.
It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 2627) that : 'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take State Vs.Mukesh Kumar FIR no.545/05 Page No. 32 of 44 utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, 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. Even in such a case the courts should look for some corroboration'.
37. Ld. defence counsel has relied upon case law 2010 (3) JCC 2024 Niranjan Panja Vs. State of West Bengal, 2010 (2) JCC 1563, 2007(2) JCC 1292 titled Gian Chand Vs. State, 2010 (1) JCC 391 titled Imran @ Pappu Vs. State, 2001(3) crimes 182 (SC), 2010 (20 JCC 1011 Mukesh Vs. State, 2006(2) JCC 1172, 2007 (2) JCC 1146, 2007(2) JCC 1142 titled Mohd. Aizaz Vs. State,2010 (2) JCC 1034 titled Dost Mohd. & Anr Vs. State, 1991 CRI. L.J.1809 Jaharlal Das Vs. State of Orissa. I have perused the said case law. All these case law are on circumstantial evidence on different issues. But keeping considering the facts of the present case in hand, with due respect I am of the view that these case laws are not applicable to the present facts and circumstances of the case.
38. In this case the prosecution has proved each an every State Vs.Mukesh Kumar FIR no.545/05 Page No. 33 of 44 circumstance to connect the accused and these circumstances are unerringly pointing towards the guilt of accused. Complete chain of circumstances has been formed by the prosecution.
39. In view of my above discussions, I am of the opinion that the prosecution has proved each and every circumstance by leading legal, reliable and unimpeachable evidence. The accused Mukesh has committed shocking, brutal, serious, heinous and dirty act. I therefore hold accused Mukesh Kumar guilty for the commission of offence punishable u/s 364/376/302 IPC and convict him thereunder. Announced in the open Court on 08.12.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Mukesh Kumar FIR no.545/05 Page No. 34 of 44 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.42/10 FIR No.545/05 U/s 364/376/302 IPC PS Okhla Industrial Area State Vs. Mukesh Kumar S/o Munna Lal R/o D Block, Bilu Ka Makan Near Kela Devi Mandir Lakadpur, Faridabad Haryana ......... Accused ORDER ON THE POINT OF SENTENCE Accused Mukesh Kumar has been held guilty for the commission of offence u/s 364/376/302 IPC and convicted thereunder.
2. I have heard the arguments on the point of sentence. During the course of arguments it has been submitted on behalf of accused/convict Mukesh that he is young boy of 26 years of age. He is unmarried. He is first offender and not previous convict. Even no other case is registered or pending against him. He has burden of his old aged parents. His father is aged about 65 years and mother State Vs.Mukesh Kumar FIR no.545/05 Page No. 35 of 44 is aged about 55 years. He is the only son in the family. His parents has no source of income. Ld. Defence counsel further submitted that at the time of awarding death penalty, the court must have considered the mental condition, age, probability of the offence, probability of rehabilitation of accused in the society and in consideration of the antecedents of convict, lenient view may kindly be taken against him.
3. On the other hand Ld. APP for the State has contended that it is the rarest of the rare case in view of the facts and circumstances established on record during trial of the case and he prayed that the convict may be awarded death penalty.
4. In view of the above submissions of Ld. Defence counsel as well as Ld. APP for the State, I have carefully considered the arguments. In this case a girl child of about four years has been raped and thereafter murdered. The accused has committed a brutal and gruesome act. In Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 the Apex court has held that death penalty should not be imposed except in rarest of rare cases and for ascertaining the existence or absence of 'special reasons', the court must pay due regard both to the crime and the criminal as well as the aggravating and mitigating circumstances. Their Lordships observed that though all murders are cruel but cruelty may vary in its degree of culpability and it is only when the culpability assumes proportion of the extreme depravity that 'special reasons' can legitimately be said to exist. Accordingly to their Lordships one of the aggravating circumstances in which the State Vs.Mukesh Kumar FIR no.545/05 Page No. 36 of 44 Court may impose penalty of death in its discretion is when it involves exceptional depravity. Some of the mitigating circumstances to be taken into account in the exercise of discretion are :
(i) That the offence was committed under the influence of extreme mental or emotional disturbance.
(ii) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(iv) The probability that the accused can be reformed and rehabilitated. (The state shall by evidence prove that the accused does not satisfy the condition (iii) and (iv) above).
(v) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(vi) That accused acted under the duress or domination of another person.
(vii) 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.
5. In the present case, the aggravating circumstances are :
(i) The victim was aged about 4 years and daughter of his colleague with whom, the convict was working and earning his livelihood.
(ii) Instead of taking care of the daughter of his colleague, he acted in extremely brutal, grotesque and biabolic manner so as to arouse extreme indignation of the society in committing rape of 4 years old child and thereafter committed her murder by slaughtering her stomach right from above her private part upto chest. State Vs.Mukesh Kumar FIR no.545/05 Page No. 37 of 44
(iii) The victim was not in a position to resist or defend being only four years old.
(iv) The convict has not shown any post murder repentance for the crime and so it is just in the realm of imagination whether he can be reformed.
(v) The convict was under no duress or domination of another person except that his entire being was so much suffused with lascivious impulses that he viewed the minor daughter of his colleague as a sex object.
(vi) The convict was not morally justified in committing the rape resulting into her murder.
(vii) The convict was not suffering from any mental defect.
(viii) There is nothing to suggest that the crime was committed under the influence of emotional disturbance.
6. The only mitigating circumstance is that the convict is a young man of 26 years. The relevant point for consideration is whether age alone can be considered as a mitigating factor. In this regard reference can be made to a Judgment reported as Narayan Chetanran Chaudhary & Anrs. Vs. State of Maharashtra, JT 2000 (10) SC 78 wherein their Lordships confirmed the following observation of Mumbai High court:
"..... the question arises whether the single circumstance of the accused being too young, should be good enough for us to award lighter punishment or not. We have not been able to lay our hands upon any observations of the Apex Court and none has been brought to our notice during the course of arguments that, even if all the aggravating circumstances are present in a particular given case, single circumstance of the accused being too young or too State Vs.Mukesh Kumar FIR no.545/05 Page No. 38 of 44 old would outweigh other aggravating circumstances and the court must on the basis of a single circumstance grant lighter punishment. Having given our deep and thoughtful consideration and after giving due weight to the mitigating as well as aggravating circumstance which have been referred to above, we are of the view that the accused in the present case must be given death sentence. The present is one of the rarest of rare cases in which infliction of extreme penalty is called for."
In State of Maharashtra Vs. Suresh, JT 1999(9) 513, the Apex Court, while disposing of the appeal of the State against the Judgment of Mumbai High Court whereby the High Court set aside the Judgment of the trial court convicting the respondent on the basis of circumstantial evidence of having committed rape and murder of four years girl and his sentence to death by the trial court, observed in para 28 as under: "It is disconcerting that a case like this in which the prosecution has presented such reliable and formidable circumstances forming into a completed chain and pointing unerringly to the irresistible conclusion that the little girl Gangu was raped and killed by none other than the respondent himself, ended in unmerited acquittal from the Division Bench of the High court. Criminal Justice unfortunately became a casualty in this case when the High Court side stepped all such circumstances and exonerated the culprit of such a grotesque crime"
It was further observed in Para 29 that : "We, therefore set aside the impugned judgment and restore the conviction passed by the trial court. Regarding sentence we would have concurred with the Sessions court's view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty inspite of the fact that this case is State Vs.Mukesh Kumar FIR no.545/05 Page No. 39 of 44 perilously near the region of 'rarest of the rare cases' envisaged by the Constitution Bench in Bachan Singh Vs. State of Punjab, 1980 (2) SCC 684."
7. In a case reported as Laxaman Nayak Vs. State of Orissa, AIR 1995 SC 1387, the appellant had been convicted by the trial court of having committed rape and murder of his niece aged 7 years on the basis of circumstantial evidence mainly consisting of the victim last seen in the company of appellant. Conviction and death sentence of the appellant was confirmed by the High court. Their Lordships rejecting the appeal and upholding the sentence of death held that the evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated cold blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of the rarest of rare case attracting no punishment other than the capital punishment.
8. In case Sushil Murmu Vs. State of Jharkhand, 2004 1 AD(SC) 262, Hon'ble Supreme Court while upholding death sentence awarded to the appellant who had sacrificed a young child of 9 years for appeasing the deity observed in para 22 as under: "Proportion between crime and punishment is a good respected in principle, and inspite of errant notions, it remains a strong influence in the determination of sentence. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly State Vs.Mukesh Kumar FIR no.545/05 Page No. 40 of 44 disproportionate punishment has some very undesirable practical consequences".
9. In a case reported as Dhananjoy Chatterjee @ Dhanna Vs. State of West Bengal, 1994(1) Crimes 319, Their Lordships while confirming the death sentence of the appellant who had raped and murdered a school going girl observed that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years by the security guard certainly makes this case a 'rare of the rarest cases' which call for no punishment other than the capital punishment.
10. In Machchi Singh Vs. State of Punjab, AIR 1983 SC 957 it has been observed in para 33 : "one of the categories of rarest of rare case may be when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment 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 community...."
11. Their Lordships also observed that in order to apply the guidelines, interalia, the following question may be asked and answered: State Vs.Mukesh Kumar FIR no.545/05 Page No. 41 of 44 (1) Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death sentence? (2) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
12. Their Lordships observed that if upon taking an overall global view of all the circumstance in the light of the aforesaid proposition and taking into account the answers to the questions posted herein above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
13. Now the question before this court is as to what is the answer to the questions posted by Their Lordships. I am of the considered view that the answer is that a child by mere act of taking birth is thrust into an unfamiliar world and is entirely at the mercy of adults who might or might not look after him/her, yet this very vulnerability and infantile dependence gives him the power to touch responsive chords in adults who can, more often take pleasure in caring for him/her. It is inconceivable that a baby child can arouse the devouring demon in a man, more particularly whom she saw being visiting terms with her family, to the extent of sexually wanting her. Nothing can be more degrading, dehumanizing if to satisfy his prurience, a person views four years daughter of his colleague as an object of sexual satisfaction and thereafter slaughtering her stomach right from above her private part upto stomach. Therefore the convict has committed a brutal, barbaric, gruesome and diabolical act by raping and thereafter committing murder of four years old girl who was yet to know about the ups and downs of State Vs.Mukesh Kumar FIR no.545/05 Page No. 42 of 44 the life. In my considered view there is something uncommon about this crime and the circumstances of the crime are such that there is no alternative but to impose death sentence.
14. In view of the above answer to the questions posted by Their Lordships in Machi Singh' case (supra) as well as the principles of Law laid down by the Apex court in the Judgments referred herein above, I am of the considered view that the present case is the rarest of the rare cases requiring the sentence of death penalty u/s 302 IPC. I, accordingly, sentence the convict Mukesh Kumar u/s 302 IPC to suffer the punishment of death and he shall be hanged by the neck till he is dead and also to pay fine of Rs.5000/ and in default of payment of fine he is ordered to suffer RI for one Month.
15. Convict is further ordered to undergo RI for ten years and to pay fine of Rs.5000/ u/s 364 IPC and in default of payment of fine to further undergo SI for one month.
16. Convict is further ordered to undergo RI for ten years and to pay fine of Rs.5000/ u/s 376 IPC and in default of payment of fine to further undergo SI for one month.
17. File be put up before the Hon'ble High court immediately for confirmation of death sentence awarded to convict Mukesh Kumar. State Vs.Mukesh Kumar FIR no.545/05 Page No. 43 of 44
18. All the sentence of convict Mukesh shall run concurrently. Copy of this order on the point of sentence and copy of Judgment be given to convict free of cost.
19. Notice be issued to Jail Superintendent to keep the convict in safe custody till the confirmation of death sentence by the Hon'ble High court. File be consigned to record room.
Announced in the Open Court on 13.12.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Mukesh Kumar FIR no.545/05 Page No. 44 of 44