Delhi District Court
State vs . Lal Dev Parsad on 12 August, 2009
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IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No. 121/08
State Vs. Lal Dev Parsad
S/o Ramji Parsad
R/o Vill. Channa, Dr.Girjapur,
P.S. Mehraura, Distt. Chhapra,
Bihar.
Also at:
Jhuggi, Near factory no. F-1862,
DSIDC, Narela, Delhi.
FIR No.302/05
PS Narela
U/s 302/377/354/366/363 IPC.
Date of Institution in Sessions Court: 18.10.2005
Date of transfer to this Court: 4.12.2008
Date of Judgment: 6.8.2009
JUDGEMENT:
In brief the prosecution story is that on 18.6.05, DD No.29A was received at PS Narela. On the receipt of said DD entry, the then Addl. SHO P.S. Narela, Inspector Injerjit alongwith constable Anil Kumar reached the spot, that was near factory no. F 1862 DSIDC, Narela, in front of which there was a jhuggi, where SI Bhagwat Parsad 2 and constable Ramesh were already present and in the meanwhile SHO P.S. Narela had also reached the spot and there they came to know that the injured had been removed to M.B. Hospital, Pooth Khurd by an PCR vehicle, where doctors had declared the injured brought dead vide MLC No. 1050/05, whose name was known as Suman D/o Sh. Ram Dayal and the crime team was called to the hospital and crime team also took the photographs of the deadbody. Thereafter, the deadbody was sent to Mortuary of M B Hospital. Thereafter, the inspector Inderjeet (IO of this case) came back to the spot alongwith the crime team. Thereafter, he again came back to BJRM Hospital where the mother of the deceased Smt. Sunita met him and got recorded her statement.
2. The complainant Smt. Sunita made a statement before the police that she was residing at the jhuggi infront of factory F 1862 DSIDC, Narela alongwith her children and her husband and she was cleaning job in the factory F 1862 DSIDC, Narela and her husband was a rickshaw puller carrying goods and she had got 4 children i.e. three daughters and one son and the name of her elder 3 daughter was Suman aged around 9 years and other daughters namely Usha and Nisha were aged around 7 years and 4 years respectively. In their adjoining jhuggi one Guddoo Parshad was also residing alongwith his family who was selling Dal-Chawal on hand cart(Rehari) and the uncle of the said Guddoo Parshad namely Lal Devi frequently visited him from Sonepat and he had developed intimacy with his husband.
3. And yesterday evening on the asking of said Lal Dev Parshad, her husband had cooked fish and rice. Thereafter, both of them had consumed liquor and all of them went to sleep at 12.00 p.m in the night. At that time she alongwith her daughters Suman, Usha and son Deepak had slept on a plastic polythene sheet on the door of the jhuggi and her husband alongwith her daughter Nisha had slept on the rickshaw Rehari standing outside the jhuggi and Lal Dev Pd. had gone to sleep in the jhuggi of Guddoo Parshad.
4. At around 3 a.m when she got awake, due to crankling sound of polythene, on which she was sleeping, at that time she saw that the uncle of Guddoo, Lal Dev was putting her daughter Suman on 4 the plastic sheet. She confronted and asked him, from where he had brought her daughter Suman to which he told her that she was sleeping at some other place and thereafter she tried to wake her up by touching her and felt that she was not responding and she called her daughter to wake up but she did not. Thereafter, on seeing the face of the said Lal Dev Parshad she understood that he had done something wrong with her daughter. Thereafter, she immediately woke up her husband and seeing this Lal Dev ran away from the spot and she told her husband that said Lal Dev Parshad had killed her daughter Suman and on hearing her cries neighbourers also gathered. Police was informed. On the basis of the said complaint an FIR U/s 302/363 IPC was lodged at P.S. Narela.
5. The postmortem of the deceased child Suman was got conducted at BJRM Hospital and the deadbody after verification was handed over to her parents. The accused was arrested on the same evening of the incident after obtaining the opinion on the postmortem report and after the completion of investigation(s) a 5 charge-sheet U/s 363/302/354/377 IPC was filed in the court.
6. Upon committal of the case to the court of Sessions, a charge U/s 363/366/354/377/302 IPC was framed against the accused vide order dt. 1.6.2006, to which the accused pleaded not guilty and claimed trial.
7. The prosecution thereafter in support of its case has examined 20 witnesses.
PW1 is SI Rajesh Kumar from the Mobile Crime Team, who inspected the spot and has proved his report Ex.PW1/A. PW2 is Smt. Sunita, the complainant and the star witness of the prosecution. She has proved her complaint as Ex.PW2/A, on the basis of which the present FIR was registered.
PW3 is Ram Dayal, the father of the deceased Suman. PW4 is Dr. Anand Bihari, Medical Officer at RHTC, Najafgarh, Delhi, who had medically examined the accused on 18.6.05 and had prepared his MLC Ex.PW4/A. PW5 is Dr. Jai Kumar, Medical Officer at MB Hospital Pooth Khurd, Delhi, who had examined the deceased Suman on 18.6.05 6 and had prepared her MLC Ex.PW5/A. PW6 is SI Manohar Lal, the Draftsman, who had prepared the scaled siteplan Ex.PW6/A. PW7 is Guddu Prasad, another star witness of the prosecution and nephew of the accused.
PW8 is Constable Ajay Singh, the special messenger, who took the copy of FIR and delivered the same to Senior Officers. PW9 is H.C. Anil Kumar, who had participated in the investigation.
PW10 is constable Sushil, the photographer, who had taken the photographs of the deceased Suman in the hospital and of the spot which are Ex.P1 to P6 and the negatives are Ex.P7 to Ex.P12. PW11 is Rajbir, the neighbourer, who had informed the police regarding the incident.
PW12 is W/HC Sumitra, the duty officer, who had recorded the FIR Ex.PW12/A on 18.6.05 and she has proved the relevant DD entries as Ex.PW12/C and Ex.PW12/D and she has also proved the endorsement on the rukka Ex.PW12/B. 7 PW13 is constable Ranbir Singh, who had taken the nine sealed pullandas from the MHC(M) duly sealed and had deposited the same with CFSL Kolkata vide RC No. 146/21/05 on 27.7.05. PW14 is Constable Ramesh who had reached the spot alongwith IO and had participated in the investigation. PW15 is Dr. Anil Shandil, who had conducted the postmortem on the body of the deceased Suman on 18.6.05 and who had given his opinion regarding the cause of death.
PW16 is constable Chander Bhan of the PCR control Room, police Head Qrs., who had stated that on 17/18-6-2005 he had received the PCR call regarding the incident vide PCR form Ex.PW16/A. PW17 is HC Satpal, the MHC(M) during the relevant time, with whom various pullandas were deposited by the IO and who had kept them in safe custody.
PW18 is Constable Anil Kumar, who took active part in the investigation(s) alongwith the IO SI Inderjeet Singh. PW20 is Sh. Suresh Babu, Asstt. Director, CFSL Kolkatta, who 8 had proved his forensic report Ex.PW20/A and Ex.PW20/B. PW19 is IO Inspector Inderjeet Singh, who has deposed regarding the entire investigation(s) as was conducted by him during the course of the present case.
8. Thereafter, the statement of the accused was recorded under section 313 Cr.P.C, in which the defence of the accused was that, since he had a quarrel with the mother of the deceased over the drain water and she had eye on his jhuggi, which she wanted to grab, therefore, mother and father of the deceased had falsely implicated him in this case and police was in connivance with them and they wanted to solve the present case somehow and he also stated that he wanted to lead Defence Evidence, but lateron on 2.4.09 it was submitted by the ld. Defence Counsel Sh. Ajay Chadha that the accused does not want to lead Defence Evidence. Thereafter, the matter was listed for final arguments. Thereafter, an application U/s 311 Cr.P.C. was moved on behalf of the State for recalling Sh. Suresh Babu Asstt. Director, CFSL Kolkatta for proving the Forensic report, which was allowed vide detailed order 9 dt. 2.7.2009. Thereafter, the said witness was examined as PW20 and discharged and supplementary statement of the accused Lal Dev Parshad was also recorded U/s 313 Cr.P.C.
9. I have heard Sh. Ajay Chadha, Ld. Amicus Curiae for the accused and Sh. G.S. Guraya, Ld. Addl. PP for the state and have perused the record.
10. In the present case, the ld. Addl. PP has argued that the entire case of the prosecution is based upon the circumstantial evidence and the prosecution by various incriminating circumstances has proved on the record, that it was only the accused, who had committed the murder of the deceased Suman aged 9 years old child, in a most ghastly manner and the accused before killing her had also sodomized her by having a carnal intercourse with her against the order of nature and accused had also outraged the modesty of the said child and that accused had also kidnapped the said minor girl Suman from the lawful guardianship of her parents with the intention of forcing her to illicit intercourse and the Ld. Addl. PP has argued that in the present 10 case, the prosecution has proved by leading evidence on the record beyond any sort of reasonable doubt that accused had committed offence(s) U/s 363/366/354/377/302 IPC.
11. On the other hand it has been argued by Ld. Amicus-curiae Sh. Ajay Chadha, that there are material contradictions in the testimony of PW2 complainant Smt. Sunita and PW3 Sh. Ram Dayal, which makes their testimonies unbelievable, as the incident had not taken place in the closed building or house and it has taken place outside the jhuggi. He has argued that as per the PW2 Smt. Sunita her husband was sleeping at a distance of less than 5 feet and she has further admitted that there was no child in between her and Suman and therefore, he has argued that it is unbelievable that if the accused had lifted the child from there from where, the said child was sleeping, then why her mother did not hear any sound at the time of lifting the child. Whereas, she heard the sound when the child was being kept back. He has further argued that PW3 in his cross-examination has stated that there was no space between the place where his wife was sleeping and the Rehari where he was 11 sleeping and he has argued that it is next to impossible, that neither the husband nor the wife had heard any sound, while the accused was taking away their minor daughter, nor any other child had heard anything. Therefore, he has argued that the entire prosecution story on this account alone becomes doubtful. He has also argued that the FSL Report in this case also does not support the prosecution story as nothing incriminating has come in the FSL report to connect the accused as no semen or blood of the accused has been found on the specimen/samples taken from the body of the deceased and the said FSL report was inconclusive, the benefit of which should go to the accused. He has also argued that in the present case no scientific evidence at all, has been collected by the prosecution, the benefit of which should also be given to the accused. Therefore, he has argued that in the present case, the accused had been implicated at the behest of the PW2 and PW3 who wanted to grab the jhuggi of the accused, therefore, he has prayed that accused deserves to be acquitted.
12. In the present case, there is no direct evidence and the entire 12 case of the prosecution is based upon circumstantial evidence. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be satisfied-
(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:-
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him".
13. However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091- AIR 11952 SC 343 and stated the five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence as follows:
14. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
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It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' arid 'must be or should be proved'.....
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they; should exclude every possible hypothesis except the one to the proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. The following circumstances were pressed into service by the prosecution for establishing the guilt of the accused persons:- 14
(1) Accused Lal Dev Parsad had developed intimacy with the father of the deceased Suman, Ram Dayal.
(2) On the day of occurrence i.e. on 17.06.2005, both of them had consumed fish, rice and liquor together. (3) Accused slept in the Jhuggi of his nephew Guddu Parsad PW7 after drinking session at around 12:00 p.m. (4) Complainant Sunita slept with her children on plastic sheet outside her jhuggi while her husband Ram Dayal was sleeping nearby on Handcart(Rehari).
(5) Complainant Sunita saw accused Lal Dev Parsad, putting her daughter Suman on polythene sheet in the night at 3a.m.
When she called Suman, she was not responding.
(6) When the complainant Sunita reacted by saying to the accused that he had killed his daughter, accused ran away from the spot.
(7) Thereafter, she woke up her husband Ram Dayal and told him about the entire incident and also called the police through PW11.
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(8) Accused was also arrested on the same evening of 18.6.09 and he got recovered Taat (Jute) bag from nearby, on which he had committed the ghastly act.
(9) The postmortem report and the opinion given by the doctor also duly corroborates the prosecution story regarding the sodomy on the body of the deceased child Suman before her death and her death being caused by strangulation.
16. After appreciation of the evidence, it has to be seen whether the prosecution has been able to prove the various circumstances beyond reasonable doubt, as enumerated above.
17. The circumstances No. 1,2 & 3 are taken up together as they are interconnected with each other.
18. It has come in the testimony of PW2 complainant Sunita, that accused who is the Chacha of one Guddu Parsad who was resident of nearby jhuggi had become friendly with his husband and had been coming to their jhuggi. In the cross-examination, the said fact has not been disputed by the Ld. Amicus-curiae that there was no friendly terms between the husband of PW2 and the accused, as no 16 suggestion has even been put to the said witness in her cross- examination. Rather, PW7 Guddu Parsad, who has the nephew of the accused has also deposed in his examination in chief that his uncle had maintained the relations with his neighbour Ram Dayal as they both used to indulge in drinking sessions together and the said fact has not been disputed in the cross-examination of said witness. The deposition of said witness PW7 is very relevant as he is related to the accused and despite that he has supported the prosecution story, as generally there is a tendency amongst the relatives to save the accused somehow. The accused also in his statement U/s 313 Cr.P.C. has admitted that he was having friendly terms with Ram Dayal's family, though, he denied that same can be termed as intimacy. In these circumstances, in view of the aforesaid discussion, prosecution has been able to prove the circumstance no.1 beyond any sort of reasonable doubt.
19. Regarding the circumstance no.2, PW2 Smt. Sunita has deposed that on the night of incident on the asking of accused, her husband had asked her to cook fish and rice. Similarly, PW7 the 17 nephew of the accused has also deposed that on the date of incident both of them had consumed fish and they also consumed liquor on the night and there is no cross-examination of the PW2 on this aspect. Similarly, no question has been put to PW2 that on the date of occurrence, her husband and the accused had not consumed liquor and rice. As not even a suggestion in this regard has been put to the witness PW2 Smt. Sunita. Even otherwise, accused in his statement U/s 313 Cr.P.C. has also admitted that he had consumed rice and fish but he denied that he had consumed any liquor. However, from the unshaken testimony of PW2 and PW7, it has been proved by the prosecution that accused had consumed fish and rice alongwith liquor with the husband of PW2 Smt. Sunita on the fateful night. Even the accused and complainant's family having fish and rice is corroborated by the postmortem report Ex.PW15/A wherein during the postmortem of Suman , Chawal and fish have been found in her stomach. Therefore, prosecution has been able to prove this circumstance no.2 also beyond any reasonable doubt.
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20. Regarding the circumstance no.3, again PW2 Smt. Sunita has stated that accused had dinner with her husband, where both of them had taken fish and rice and thereafter after the completion of dinner they went to sleep and PW7 has also stated that after consuming the fish as well as liquor at about 12 p.m in the night accused came to his jhuggi to sleep, this fact that the accused after having dinner with the husband of PW2 had gone to sleep in the jhuggi of PW7, has remained unrebutted as no question has been put to the said witness in the cross-examination that accused was not present in the jhuggi after the completion of dinner party and liquor session. Therefore, the prosecution has also been able to prove this circumstance beyond any sort of reasonable doubt, from the testimony of the aforesaid witnesses. Therefore, the circumstances 1,2 & 3 are decided in favour of the prosecution and against the accused.
21. Circumstances No. 4, 5 & 6 are taken up together as they are also interconnected.
22. Regarding the circumstance No.4, it has been deposed by PW2 19 Complainant, Smt. Sunita that on the night of the incident after having dinner, she slept with her two daughters namely Suman aged 9 years and Usha aged 7 years and his son Deepak 2 years old on the door of jhuggi on a big polythene and at some distance her husband was also sleeping on his Rehari with his another daughter Nisha aged 6 years.
23. She further deposed that at around 3a.m, she heard the crankling noise of polythene on which she was sleeping with her children and she saw that accused Lal Dev was making her daughter lie on the polythene. She asked from where he was bringing her daughter, he replied that Suman was sleeping somewhere else and he had only brought her to sleep with her. She touched her daughter and felt something strange, she was not responding. She called for Suman and she did not reply and then she reacted by addressing the accused and telling him that he had killed her daughter. It has been argued by ld. Amicus-curiae that there are material contradictions in the testimony of PW2 complainant and PW3 the husband of the complainant Ram Dayal 20 on this point, which is fatal to the case of the prosecution. As he has argued that PW2 in her cross-examination has admitted that her husband was sleeping at a distance of less than 5 feet from her and deceased Suman was sleeping on the same polythene, as she was towards her back side and there was no other child between her and Suman and she also stated that Rehari of her husband was placed at a distance of 5 feet from the place of her jhuggi. Whereas, it is argued by the ld. Defence Counsel that PW3 in his cross- examination has stated that on the date of occurrence he had placed his rickshaw/rehari immediately adjoining to the place where his wife and children were sleeping and there was no intervening space of any person to enter and he came to know about the incident at about 3 a.m.
24. Therefore, he has argued that it is next to impossible that though, PW2 allegedly heard the crankling noise of polythene and saw the accused putting down the deceased Suman on the said polythene, at the same time, her husband who was sleeping on the Rehari next to her had heard nothing, which is not possible as PW3 21 has himself admitted in his cross-examination that there was no space where his children and wife were sleeping and where he was sleeping and he was even woken up by the cries of his wife. This shows that the entire prosecution story is false.
25. I have considered the said contention. To my mind the said arguments of ld. Amicus-curiae is without any substance, firstly, it has been proved by the prosecution that PW3 had consumed liquor alongwith the accused and after consuming liquor person becomes dull from mind and his consciousness is not same as that of the person who has not consumed any liquor, as the liquor tends to blur the consciousness of a person. Secondly, it is admitted case that PW2 Smt. Sunita and PW3 Ram dayal were jhuggi dwellers and they were the persons doing blue collar jobs and they were not doing any white collar job, therefore, the sleep of PW2 and PW3 was that of a person(s) doing blue collar job, which is generally very sound as they physically workout throughout the day, therefore, they also get physically more tired and therefore, their sleep is very sound. Since, PW3 Ram Dayal had also consumed liquor, 22 therefore, he was not in complete consciousness at that time, so as to hear the crankling noise of polythene, which her wife had heard as she had not consumed any liquor. Both PW2 and PW3 have stated in their cross-examination that there was sufficient street light outside the jhuggi at that time, meaning thereby that there was sufficient light at the time of occurrence, to enable the PW2 to identify the accused as it was not complete darkness at that time, therefore, she had ample opportunity to establish the identity of the accused in this case.
26. Even otherwise, the testimony of PW2 and PW3 regarding the place, where they were sleeping can not be said to be material contradiction which could affect the credibility of the prosecution case.
27. PW2 Smt. Sunita has stated that thereafter she rushed towards her husband and woke him up and in the meanwhile accused had fled away from the spot and on account of alarm raised, neighbours and other persons from the factory had collected there. PW3 Ram Dayal during the cross-examination by ld. Amicus Curiae, has also 23 stated that he came to know about the incident at 3 a.m when his wife had woke him up and told him, though, he had not seen the accused doing any offence.
28. As discussed above, the testimony of PW2 Smt. Sunita has been found to be consistent and credible and nothing has comeout in her cross-examination which could affect the credibility of her statement and as discussed above, she has also stated in her cross-examination that there was sufficient street light outside the jhuggi at that time. Therefore, she had ample opportunity to identify the accused whom she knew previously.
29. As discussed above, the presence of the accused on the date of incident has already been established while discussing circumstances no. 1,2&3 and from the testimony of PW2 it has also been proved that the accused ran away from the spot, when the complainant PW2 reacted by asking accused that he had killed his daughter. This conduct of the accused, running away from the spot when he was confronted by the mother of the deceased PW2 "what he had done with her" is relevant u/s 8 of the Indian Evidence Act. 24
30. PW7 Guddu Parsad has also corroborated the statement of PW2 Smt. Sunita, as she had stated that, at about 2.30a.m wife of Ram Dayal raised an alarm and he and his wife woke up and came to know that accused had left the elder daughter of Ram Dayal namely Suman in a dead condition in their jhuggi and there is no cross-examination also on this aspect. Therefore, in the present case, the conduct of PW2 immediately raising an alarm after seeing her daughter dead, which would be natural reaction of any mother is also corroborated by the testimony of PW7 who is none other than the nephew of accused.
31. Therefore, the conduct of accused become relevant in this case, if he was innocent, he should have explained from where he had taken the deceased Suman and why he was placing her back on the polythene sheet and what had happened to the deceased and why she was not responding and why she was dead at that time and why he was putting her back on the polythene sheet, therefore, the onus shifted upon the accused, to explain under what circumstances there was a need of shifting the deceased Suman to 25 the place where she was sleeping especially, when he was not even sleeping at the same jhuggi, but he was sleeping in the jhuggi of his nephew PW7 Guddu Parshad and he had no business to shift the said minor child without the consent of her parents in the dead middle of the night. In the absence of any explanation put by the fourth accused, why he had shifted Suman on the fateful night and his failure to explain satisfactorily the circumstance(s) leading to her shifting there, leads to only one inference that the accused had committed the murder of deceased.
32. As per Section 103 of the Indian Evidence Act, which is reproduced as under:
Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
33. In view of section 103 of Evidence Act, the onus shifted upon the accused by proving on preponderance of probabilities, that he did not kill the deceased Suman and he was merely shifting her, 26 where she was sleeping to the place, where her mother was sleeping and when he was seen by the mother of the deceased Suman putting her on the plastic sheet. The accused in this case has failed to give any satisfactory explanation, as to why he was carrying the Suman in the dead of night and why at that time she was not speaking anything and was found dead by her mother, accused is under an obligation to furnish some sort of explanation for the same but he was failed to explain.
34. PW2 in her cross-examination has stated that they had taken food at 11/12p.m and similarly, PW7 Guudu Parshad has stated that after consuming fish as well as liquor at about 12.00p.m in the night accused came to his jhuggi and went to sleep. As discussed above, the testimony of both the witnesses PW2 and PW7 has been found to be trustworthy, from the aforesaid evidence, it is clear that accused Lal Dev came back to the jhuggi of his nephew at about 12.00p.m night from the jhuggi of Ram Dayal and thereafter, he went to sleep. The time since death at the time of conducting the postmortem has been mentioned as approximately 27 12 hours and the said postmortem was conducted at 1 p.m. on 18.6.05 and from the testimony of PW7 it has been established that accused Lal Dev Parshad came back to his jhuggi to sleep there at 12 p.m. night and PW2 has stated that at about 3.a.m she woke up due to the crankling noise of polythene on which she was sleeping outside her jhuggi and therefore, time during which the deceased could have been killed was between 12p.m night and between 3a.m and the distance between the jhuggi of Ram Dayal and the Jhuggi of Guddu Parshad can not be said to be such, that accused after going there to sleep could not have come back. The time of death as per the postmortem report Ex.PW15/A also matches with the time during which the deceased Suman had been killed, which is approximately 12 hours since death which means that she may have been killed at about 1 a.m. On 18.6.05. Therefore, the accused had ample opportunity to come back from the place where he was sleeping and thereby killing the deceased Suman. Therefore, the prosecution has been able to prove circumstances No. 4,5,6&7 beyond any reasonable doubt from the testimony(s) of 28 the aforesaid witnesses who have deposed in favour of the prosecution.
35. Circumstances No. 8 & 9 are taken up together as they are also interconnected.
36. Regarding the circumstance No. 8, PW18 Constable Anil Kumar and PW19 IO Inderjeet Singh are the recovery witnesses of the prosecution alongwith PW3 Ram Dayal.
PW18 Constable Anil has deposed that accused was arrested at the instance of secret informer from the bus stop village Bhorgarh. Similar, is the testimony of PW19 who deposed that at the instance of secret informer accused was arrested from the bus stop Bhorgarh on 18.6.05 in the evening. Both the said witnesses have stated that accused made a disclosure statement Ex.PW18/C and got recovered a Jute bag on which he had raped the girl after laying down on the same, which was seized vide memo Ex.PW3/D. However, PW19 in his cross-examination has admitted that the Jute bag was kept in the open space and similarly PW18 in his cross- examination has also admitted that the said jute bag Ex.P1 was 29 lying in a plot having walls from both sides but there was no gate and the plot was opened from one side. Similarly, both PW19 and PW18 have admitted that public persons were present at the time of recovery, but nobody was joined in the investigation. In these circumstances, since the said Tat had been recovered from an open plot, the same can not be said to be a recovery U/s 27 of the Indian Evidence Act pursuant to disclosure statement as has been held in Judgment AIR 1964 MP 30 "No discovery if body recovered in open field pursuant to the information of the accused". Further it has been held in judgment AIR 1976 SC 483 "stolen drums discovered in pursuance of the statement from a place accessible to all. Insufficient to convict the accused." Therefore, in view of the aforesaid settled law, the said recovery of Tat has not been satisfactorily proved by the prosecution.
37. Regarding the circumstance no. 9 Dr. Anil Shandil PW15, who had conducted the postmortem on the body of the deceased, in his examination in chief has stated that following External Injuries were found on the body of deceased child:
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1. Multiple pressure abrasion with bruising and crescentic marks over front and sides of neck and base of chin, varying in size from 0.8x0.4 cm to 1.5cm x .5 cm, reddish brown in colour.
2. Bruised tear with abrasion and laceration extending from the anal marging into the anus itself with adherent spects of blood, reddish in colour at 9,11,12,1,5,6,7, O'clock position antero postero, laterally.
38. PW 15 Dr. Anil Shandil had also given his final opinion regarding the cause of death. He has stated that "the cause of death is asphyxia resulting from manual strangulation by other party. Postmortem findings are consistent with forceful penetration of anus/anal canal by erect hard penis and time since death is approximately about 12 hours". No worthwhile cross-examination of the PW15 has been carried out by the Ld. Amicus Curiae which could throw any doubt on the findings given by him in his postmortem report Ex.PW15/A.
39. The external injury no. 2 as mentioned above, clearly point out 31 that the deceased child Suman was sodomized by the accused before strangulating her to death, as the cause of death has been given as asphyxia resulting from manual strangulation and postmortem findings are also found consistent with forceful penetration of anus/anal canal by erect hard penis. The said doctor had also preserved the clothes of the deceased as well as her anal and vaginal swab for determination of semen, contents of semen etc. and the same were lateron sent to CFSL Calcutta for Forensic opinion.
40. The Ld. Amicus Curiae has vehemently argued, that in this case nothing has come out in the said forensic report which has been proved on the record by PW20 Sh. Suresh Babu, which reports are Ex.PW20/A and Ex.PW20/B respectively. Therefore, he has argued that there is nothing on the record to connect the accused with the commission of offence, as scientific investigation does not point out towards the culpability of the accused. I perused the said reports which are Ex.PW20/A and Ex.PW20/B respectively. Exhibit 8-B which was, two glass slides of the deceased taken from 32 her anus have tested positive for semen tests and the report Ex.PW20/B regarding the origin of the said semen has come to be human. This finding itself is sufficient to nail down the accused with the offence in question, as the same is also consistent with the finding in the postmortem report Ex.PW15/A, whereby the child had been sodomized before her death and PW15 Dr. Anil Shandil has opined that the said findings are consistent with forceful penetration of anus/anal canal by erect hard penis and the origin of the said semen has also been reported as human, therefore, ruling out any foul play by the prosecution. Therefore the medical opinion also supports the prosecution version. Consequently, the prosecution has also been able to prove the circumstance no.9 against the accused beyond any reasonable doubt. Though, the prosecution has failed to prove the circumstance no.8 against the accused, but the same is not material to the out come of present case, as even otherwise chain of other circumstantial evidence(s) discussed above including the ocular evidence of the prosecution witnesses and the failure of the accused to give any plausible explanation for 33 his presence at the jhuggi of Ram Dayal at 3 a.m on the fateful night of 18.6.05 has been proved beyond any sort of reasonable doubt indicating the culpability of the accused in the present case.
41. Applying the principle laid down in the judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622(Supra), and also the judgment of Hon'ble Supreme Court in Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091=AIR 1952 SC 343(Supra), I am of the considered view, that it has been proved beyond any reasonable doubt by the prosecution, by unimpeachable evidence by aforesaid chain of circumstances as discussed above, which is so complete, which only leads to the conclusion, that it was only the accused who had committed the murder of deceased Suman and no one else and the circumstantial evidence lead on the record, is absolutely inconsistent and incompatible with the innocence of the accused and there is no circumstance brought on record by the accused suggesting his innocence or the possibility that any one else might have committed the aforesaid ghastly act. Therefore, the circumstance(s) proved by 34 the prosecution form a chain so complete which leads only to the conclusion, regarding the culpability of the accused Lal Dev Parshad regarding the murder of the deceased Suman.
42. Regarding the offence U/S 363/366 IPC, the prosecution has failed to prove the said charge(s), as there is no evidence on the record that the deceased Suman had been kidnapped by the accused from the lawful guardianship of her parents, with an intention of forcing her to illicit intercourse, as there is no prosecution witness who has been examined on the record to say that he had seen the accused taking away or enticing the deceased minor girl Suman on the fateful night of 18.6.05. Therefore, the prosecution has failed to make out a case U/s 363/366 IPC.
43. Regarding the offence U/s 354/377 IPC, the medical evidence as mentioned above i.e. in the postmortem report Ex.PW15/A clearly suggests, that the deceased was sodomized before she was strangulated to death and the doctor had also opined regarding the same in his opinion that "the cause of death is asphyxia resulting from manual strangulation by other party. 35 Postmortem findings are consistent with forceful penetration of anus/anal canal by erect hard penis and time since death is approximately about 12 hours". In view of the said conclusive medical evidence lead on the record, the prosecution has been able to prove by an necessary inference that accused had an carnal intercourse with the deceased child Suman against the order of nature and for proving the same, it has been laid down in Sec. 377 IPC that penetration is sufficient, therefore, the prosecution has also been able to prove its case U/s 377 IPC beyond any sort of doubt.
44. Regarding the offence U/s 354 IPC, it is settled law that even a minor child is having modesty and the test for ascertaining whether modesty has been outraged is the action of the offender, such as could be perceived as one which is capable of shocking the sense of decency of a woman 1996 Cr. LJ 381. Further it has been held in a judgment State of Punjab v Major Singh AIR 1967 SC 63 1967 Cr.LJ 1, where the accused walked into the room where a female child of seven and half months was sleeping, stripped himself 36 naked below the waist and kneeled over her and fingering her vagina ruptured the hymen causing an injury, it was held that the accused committed an offence under the section.
45. In the present case, no doubt accused could not have sodomized the child Suman without taking off her clothes and by doing so he definitely outraged the modesty of the said minor child Suman. Though, the said minor child was not capable of resisting the accused, therefore, from the aforesaid discussion, the prosecution has also been able to prove its case U/s 354 IPC beyond any doubt.
46. The net result of the above discussion, is that the accused Lal Dev Prasad stands convicted under Section(s) 302/377/354 IPC. Now to come up for hearing on point of sentence on 10.8.09.
Announced in the open court (Sanjeev Aggarwal)
on dt. 6.8.2009 Addl. Sessions Judge:
Delhi.
37
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No. 121/08
State Vs. Lal Dev Parsad
S/o Ramji Parsad
R/o Vill. Channa, Dr.Girjapur,
P.S. Mehraura, Distt. Chhapra,
Bihar.
Also at:
Jhuggi, Near factory no. F-1862,
DSIDC, Narela, Delhi.
FIR No.302/05
PS Narela
U/s 302/377/354 IPC.
ORDER ON THE POINT OF SENTENCE
12.08.2009
Present: Sh. G.S. Guraya, Ld. Addl. PP for the State.
Sh. Aseem Bhardwaj, Ld. Amicus-curiae for the convict Lal Dev Prasad.
I have heard the convict as well as amicus-curiae on the point of sentence and also the Ld. Addl. PP for State. It is submitted by Ld. Amicus-curiae Sh. Aseem Bhardwaj that the convict is not a 38 hardened criminal and he is only 34 years of age and he had no previous history of involvement in any crime and that he had three minor children and wife to look after and there is nobody to look after them. It is also submitted that the convict is also having ailing old parents to take care and one unmarried sister. Therefore, he prays that a lenient view may be taken against him.
On the other hand it is submitted by the ld. Addl. PP Sh. G.S. Guraya, on behalf of the State, that the convict deserves appropriate punishment for the ghastly act, he had killed a young girl aged around 8 years and also sodomized her to fulfill his lust and his behaviour does not deserve any leniency and moreover the punishment in such cases should be a lesson for the society at large . He further submits that by awarding appropriate punishment the cry of the society for justice should also be met. Therefore, it is prayed that strict punishment should be awarded to the convict.
I have gone through the rival contentions. In the present case, the convict had committed the most gory act of killing a young girl, aged only 8 years in most inhuman manner and the convict had also 39 sodomized her before strangulating her to death in a beastly manner without any feeling for value of human life, In these circumstances, though no ground for capital punishment is made out as the same has not even been pressed by the State, however, a message should go to the society at large, that such kind of crimes do not pay. In these circumstances, I sentence, the convict Lal Dev Prasad S/o Sh. Ramji Prasad, to undergo rigorous imprisonment for life and I further sentence the convict to pay a fine of Rs. 2,000/- U/s 302 IPC and in case of default of payment of fine he shall further undergo SI for 2 months.
I further sentence the aforesaid convict Lal Dev Prasad, to undergo rigorous imprisonment for five years and I further sentence the convict to pay a fine of Rs. 2,000/- U/s 377 IPC and in case of default of payment of fine, he shall further undergo SI for 2 months.
I further sentence the aforesaid convict Lal Dev Prasad, to undergo rigorous imprisonment for two years U/s 354 IPC.
The above mentioned sentences are directed to run 40 concurrently to each other. The benefit of the period already under gone by the convict during the trial shall be extended to the convict by giving him benefit under section 428 Cr. P.C. This court will be failing in its duty in not appreciating the efforts put in by the young counsels in this case, the Ld. Amicus-curiae Sh. Ajay Chadha and Sh. Aseem Bhardwaj, who are discharged.
Copy of the judgment and that of sentence be given to the convict free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 12.08.2009 Addl. Sessions Judge
Rohini Courts: Delhi.