Delhi District Court
S.C. No. 131/10 Fir No. 737/07 State vs . Pawan Kumar 1 /49 on 28 November, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 131/10
(Unique ID No.02403R0120492008)
FIR No. 737/07
PS: Mehrauli
U/S: 302/376/377/201 IPC
State
Versus
Pawan Kumar
S/o Samunder Singh
R/o H No. 26, Jhanda Colony
Asola, Fatehpur Beri, New Delhi
Date of Initial Institution : 14/01/2008
Date of Institution in this court : 01/11/2010
Date of Pronouncement Order : 28/11/2013
JUDGMENT
1. In this case police came into action on receipt of an information on 16.10.07 at 4.02 pm that one Anshika @ Anshu, aged 7 years, daughter of Ranbir Singh, is missing since 1.30pm from her house no. S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 1 /49 26, Jhanda Colony, Asola, Fateh Pur Beri. At the time when she went missing, she was wearing bluish colour salwar and chunni. This information was recorded vide DD no. 21 at PP Bhati Mines, PS Mehrauli and HC Rohtash Singh, HC Praveen Kumar were sent to the spot. They reached the spot and met Shashi, mother of the missing girl and Satinder, brother of Shashi. In the course of search of the missing girl a white colour plastic bag on which Laxmi Brand SFM Sodhi Flour Mill was printed, was found from a vacant plot near H No. 26, Jhanda Colony and inside that bag dead body of Anshika @ Anshu was found. HC Rohtash informed police station and thereafter SI Sandeep Solanki alongwith Inspector K P Kukreti reached the spot. Blood was coming out from mouth and nose of the deceased. A chunni was tied around her neck. Statement of Shashi Bala was recorded on which rukka was prepared and a case u/s 302/201 IPC was registered. Accused Pawan Kumar was suspected by the informant in her statement. The dead body was sent for postmortem and according to the postmortem report section 376 and 377 IPC were also added. On S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 2 /49 16.10.07 accused was interrogated and was subsequently arrested. After completion of the investigation charge sheet was filed. Since the offences u/s 376 and 377 IPC were exclusively triable by the Sessions the case was committed to this Court.
2. On 04.03.09 charge u/s 376/377/302/201 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution examined 18 witnesses and gist of their deposition is as under:-
3.1 PW-1 is Dr. Sushil Sharma appeared on behalf of Dr. Puneet Setia who had carried out postmortem of Anshika. It was stated that Dr. Puneet Setia has left the hospital and his present address is not known. He identified the handwriting of Dr. Puneet Setia on the postmortem report and proved the same vide Ex. PW 1/A. According to the postmortem report cause of death was asphyxia and cranio-
cerebral damage consequent upon strangulation and blunt force impact to head. These injuries were noted on the body of the deceased S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 3 /49 out of which one was produced due to ligature strangulation and two were produced by sharp point object while other three were produced by blunt force.
3.2 PW-2 is Shashi Bala, who is mother of the deceased has stated that at the time of incident she was living as a tenant in the house of Samunder Singh and accused Pawan Kumar was the eldest son of Samunder Singh, who was having a kiryana shop in the front of the house. She stated that on 16.10.07 at noon time Anshika was playing outside the house. Prior to that her both daughters were at the house of her mother who used to reside in the neighbourhood and were playing there. She had called her daughters from there as food was ready. Both of them came inside and after about 12.15 pm Anshika went outside. Accused was alone in the house and was present at the gate of the house keeping an eye on the children. At that time Pawan was alone as his father had left for the shop in the morning and his mother and sister left to visit some hospital to see somebody. At about 1.30 pm accused Pawan came and informed her that Anshika was S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 4 /49 playing outside on which she asked him as to what was his concern and let Anshika play outside. At about 2.15/230pm accused Pawan again came and told her that Anshika was not playing outside. She immediately went out and noticed Anshika to be missing. She searched for her and made inquiries from other children who told that other children had left Anshika and accused Pawan near the gate of the house before they left the place. She even searched her daughter at the house of her brother but her brother told that Anshika had not come to his house. Accused also joined the search on his scooter and took her here and there. She noticed that the hands of the accused Pawan were trembling while driving the scooter. Accused also made a call from her reliance phone to his mother informing her about missing of Anshika. Accused Pawan was very frightened (ghabraya hua tha), when he made the call to his mother. She also talked to his mother. Accused made a call to police and police came. However at the time of search accused did not allow other to go to roof top of the house. Accused remained with the police in the search and finally S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 5 /49 dead body of her daughter Anshika was found in a white plastic bag in a vacant plot adjacent to the house of the accused. Initially when the bag was seen it was considered to be a bag of garbage however when it was opened dead body of Anshika was found. She proved her statement recorded by police as Ex. PW 2/A. She also identified the accused in the court. In her cross examination she was confronted with her statement where the time of coming of accused was mentioned as 2.15pm and not 1.30pm. She was also confronted with her statement where trembling of hands of accused while driving the scooter was not mentioned nor the statement that accused had called his mother. Similarly she was also confronted with her statement that accused was not allowing anybody to go to the roof top of the house was not mentioned.
3.3 PW 3 Om Prakash stated he was running a Mother Dairy Booth at his house and Pawan was having a shop and used to take 4-5 kgs of packed milk from him daily. Whenever milk van came to supply milk, he used to inform Pawan and other buyers about the S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 6 /49 availability of milk. On 16.10.07 when milk van came at about 1.30 pm he visited the house of accused Pawan in order to inform him. He found shop of the accused to be closed which was situated in front of the house of the accused. He reached the house of the accused and peeped through the iron gate. Accused Pawan was on the roof top of the house in front of the room. He also saw Anshika alongwith Pawan standing there. From the gate itself he informed Pawan by shouting that milk van has arrived and he can take the milk from his shop, on which accused replied that he will come to his shop. The witness then returned back to his shop. However, accused did not come to take the milk on that day. At about 3.30 pm mother of Anshika came to his shop and was searching for Anshika. The witness informed her that she was with Pawan at the roof of his house. Later on Anshika was found murdered. Accused Pawan also tried to mislead by stating that one singadewala took away Anshika and at his instance they ran in one direction to search that Singhadewala but no such person was found. He identified the accused in the Court. In his cross- S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 7 /49 examination he stated that he came to know about the death of Anshika at about 6 pm. He also stated that he had informed the police officials that he had seen the accused with the girl. He denied the suggestion that he had not gone to call the accused on that day or that he had not seen the accused with Anshika on that day. 3.4 PW 4 Ct. Dhruv Dev Rana recorded DD no.21 dated 16.10.07 and DD no.33 dated 17.10.07 and proved them as Ex.PW 4/A and Ex.PW 4/B respectively.
3.5 PW 5 HC Rampal is the photographer who visited the spot alongwith crime team and proved the photographs as Ex. PW 5/1 to 30 and the negatives collectively as Ex. PW 5/31.
3.6 PW 6 Satinder is the brother of Shashi Bala, mother of the deceased. He stated that on 16.10.07 his sister Shashi Bala made a call to him and told him that Anshika was missing when she was playing. He reached at the house of Shashi Bala. At the gate he met accused who told him that he saw Anshika at about 2.00 pm at the gate and S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 8 /49 thereafter he left for the market. He alongwith other persons made searches for Anshika but could not find her. At about 3.45 pm he made a call to police by dialing 100. HC Rohtash alongwith Ct.Praveen reached there and they again started to search Anshika. At that time, the accused Pawan told some other fact that he saw Anshika sitting on a cart of a vegetable seller and saw her going towards the fields where vegetable sellers are generally present. Accused also joined them in search of Anshika. Finally they reached a vacant plot situated adjacent to the house of the accused where a plastic bag was noticed. On opening the bag dead body of Anshika was found. When they were searching for Anshika they wanted to go to the roof top of the house of the accused but he did not allow them to do the same and himself went to the roof top and informed them that Anshika was not there. He identified the accused present in the court. In his cross examination he stated that he had stated to police that accused had told him that he saw Anshika at about 2 pm at the gate, but on being confronted with his statement recorded u/s 161 Cr.P.C and Ex. PW 6/DA it was not S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 9 /49 found to be recorded there. Similarly the fact regarding Anshika sitting on the cart of vegetable seller and her going towards the fields was also confronted from Ex.P W 6/DA which was not found to be recorded there.
3.7 PW 7 Inspector Praveen Kumar is the Incharge of Mobile Crime Team, South District who stated that on 16.10.07 he visited the vacant plot at Jhanda Colony and inspected the same. He proved his report vide Ex. PW 7/A. 3.8 PW 8 HC Rohtash stated that on 16.10.07 on receipt of DD no. 21 he alongwith Ct.Praveen reached at H. No. 26, Jhanda Colony where he met Shashi Bala and Satinder who informed him that Anshika was missing. They made search. Dead body of the girl was discovered from a vacant plot at the right side of H. No.26 in a white plastic bag. He informed the police post incharge SI Sanjeev who came to the spot alongwith HC Suresh. SHO also reached at spot. SI Sanjeev recorded statement of complainant Sahashi Bala and as per S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 10 /49 the instruction he took rukka and got the FIR lodged at PS Mehrauli. After registration of FIR, SHO took over the investigations who was handed over copy of FIR and rukka by him. HC Suresh was sent for preservation of dead body. Crime team and dog squad was called and spot was inspected. Plastic bag was seized in his presence which was sealed with the seal of KPK and he proved the seizure memo as Ex. PW 8/A. On 17.10.07 IO seized medical exhibits pertaining to the dead body. They reached back to Jhanda colony and after interrogation accused was arrested vide arrest memo Ex. PW 8/B and his personal search memo was made vide Ex. PW 8/C. His shirt was seized vide memo Ex. PW 8/D. He identified the while colour plastic bag as Ex. P1 and shirt of the accused as Ex. P2. He also identified the accused in court. In his cross examination he stated that mother of the victim told him that victim was missing since 1.30 pm. He reached the spot at about 2.10 pm. Accused was present at his home when they remained at the spot.
S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 11 /49 3.9 PW 9 Mahender Kumar Kalra stated that the accused Pawan used to take gunny bag containing atta and chawal from his shop for sale at his shop. In the month of October, 2007 accused had also taken a gunny bag contain 50 kg in it. He came to know that one girl had died and her dead body was lying in the gunny bag. He identified the bag and the accused in the court. In his cross examination he stated that in the billing regarding the purchase of the gunny bag of aata and rice there used to be entry of batch number and serial number on the gunny bag. He admitted that on Ex. P1 there is no serial number or batch number mentioned. He admitted that he was not the only purchaser of gunny bag from Sodhi Flour Mills. He also admitted that people generally purchased empty gunny bags from his shop to carry goods and that other shops also sell atta and rice of the same brand. 3.10 PW 10 HC Suresh Chand stated that on 16.10.07 at about 6.00 pm he alongwith SI Sanjeev Kumar Solanki had gone to Jhenda Colony, Fateh Pur Beri where in the vacant plot near H. No.26 one dead body of the girl was found in a plastic gunny bag. Shashi Bala, S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 12 /49 mother of the deceased was at the spot. Her statement was recorded. SI Sanjeev Kumar Solanki prepared a rukka and HC Rohtash took the rukka to the PS. Crime team was called at the spot and photographs were taken. He alongwith Ct. Praveen took the dead body to AIIMS mortuary which was preserved there. Ct. Praveen remained in the hospital and he came back to the spot. The plastic bag was having blood stains. It was sealed by Insp. K P Kukreti in a pullanda which was sealed with the seal of KPK. Seal after use was given to HC Rohtash. On 17.10.07 IO had collected a pair of shoes worn by Anshika from the hospital which were seized vide seizure memo Ex. PW 11/A. In his cross examination he has stated that statement of Shashi Bala was recorded at about 7.00 pm. 3.11 PW 11 is SI Mahesh Kumar, Draftsman, Crime Branch who stated that he inspected the spot on 14.11.07 at the request of Inpsector K P Kukreti. He took rough notes and measurements at the instance of SI Sanjeev Solanki and proved the scaled site plan as Ex. PW 11/A. S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 13 /49 3.12 PW 12 Ct. Sandeep Shokeen deposed that on 26.11.07 he deposited sealed pullandas at FSL after taking them from MHC(M). 3.13 PW 13 W/SI Savita proved recording of FIR No. 1082/03 u/s 302 IPC and proved the copy of same as Ex. PW 13/A. 3.14 PW 14 SI Liyakat Ali proved recording of FIR no.737/07 u/s 302/201 IPC on 16.10.07 at 8.05 pm and proved the copy of the same as Ex. PW 14/A. 3.15 PW 15 ASI Uday Singh stated that on 16.10.07 he received copies of FIR and he alongwith Ct.Dara Singh delivered the copies to senior officers.
3.16 PW 16 Inspector Sanjeev Solanki deposed that on 16.10.2007, he was posted as SI in Police Post Incharge Bhati Mines, PS Mehrauli. DD entry no. 21 was received in PP Incharge Bhati Mines regarding missing of a girl aged about 7 years, it was entrusted to HC Rohtas. Thereafter, HC Rohtas alongwith Ct. Praveen reached at the spot i.e, S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 14 /49 26, Jhanda Colony, Asola Fatehpur Beri. On that day, at about 5.45 P.M., he received a call from HC Rohtas and he alongwith HC Suresh Chand reached at the spot after informing the SHO PS Mehrauli. At the spot HC Rohtas, Ct. Praveen and mother of the missing girl and maternal uncle (Mama) Sh. Satender met there. Adjacent to the house no. 26 which is a vacant and gated plot, where one white plastic bag (katta) was lying in which the blood stained dead body of minor girl was present. The said plastic bag was open and the face of the girl was outside the katta. The dead body of female girl was identified by her mother and her mama as Anshika @ Anshu D/o Sh. Ranvir Singh. Around the neck of the dead body of the Anshika, one chunni was tied and there was some bleeding from her mouth. He recorded the statement of the mother of the deceased girl namely Smt. Shashi Bala which he proved as Ex. PW 2/A. SHO of the Police Station Inspector K.P. Kukreti also came at the spot. The witness endorsed her statement as Ex. PW 16/A and prepared a rukka which was handed over to HC Rohtas and sent to PS Mehrauli for the registration of the S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 15 /49 case. In the meantime, Crime Team and Dog Squad also reached at the spot. Further investigation was taken over by SHO/Inspector K.P. Kukreti. HC Rohtas returned back the spot with the copy of the FIR and original rukka and handed over to SHO. The spot was photographed by the crime team. The plastic white colour bag (katta) was taken into possession after removing the dead body of Anshika from the said bag and kept in a white cloth and sealed the same with the seal of K.P.K. and taken into possession through Seizure memo Ex. PW 8/A. Laxmi Brand SFM (Sodi Floor Mill)was printed on the said katta. Some blood stain mark was also found on said plastic bag. The dead body of Anshika @ Anshu was sent to mortuary of AIIMS for further proceedings. Case property was deposited in the Malkhana and then he left for the PP. On 17.10.2007, he reached at AIIMS mortuary alongwith HC Rohtas meanwhile, IO/SHO also reached there. At the mortuary of the AIIMS Dr. handed over pair of shoes of Grey and Red colour on which WWW Puff.com was written on it which were seized vide seizure memo Ex. PW 11/A. After the post- S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 16 /49 mortem, doctors handed over eight exhibits, duly sealed with the seal of hospital, alongwith sample seal to Ct. Praveen who produced them before the IO and IO took them into possession through seizure memo Ex. PW 16/B. The dead body of Anshika was handed over to the family members. Thereafter, he alongwith IO/SHO, HC Rohtas and Ct. Praveen reached at the house no. 26 Jhanda Colony, Asola Fatehpur Beri where IO apprehended one Pawan Kumar S/o Samunder Singh who was also suspected by the complainant in her complaint and was the son of her landlord. He was arrested by the IO vide arrest memo Ex. PW 8/B. His disclosure statement, was proved as Ex. PW 8/F. Accused also pointed out the place where he committed rape and unnatural intercourse and murdered in his store/room situated at first floor and then kept her dead body in a bag which he threw at the said vacant plot touching with the wall of his house. The pointing out memo was proved as Ex. PW 8/G. Thereafter, accused also produced his cream colour stripes shirt before the IO which he seized vide seizure memo Ex. PW 8/D. Accused was got S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 17 /49 medically examined. Doctor handed over some exhibits in sealed condition duly sealed with the seal of hospital alongwith the sample seal which were seized vide seizure memo Ex. PW 8/E. He identified the accused , shoes of deceased, katta in Court. In his cross- examination he has stated that he reached the spot within 20-25 minutes after receiving the information and met the complainant, her brother Satender, HC Rohtas and Ct. Praveen there. Inspector Kukreti also reached the spot after one hour of his arrival. HC Rohtas was sent with Rukka for registration of FIR at about 7:20 p.m. The Crime Team and dog squad also reached the spot around 8:00 p.m. HC Rohtas came back at the spot with Rukka and FIR at about 8:45/9:00 p.m. He admitted that the complaint (Ex.PW2/A) of Shashi Bala contains the name of Pawan Kumar. He denied the suggestion that accused Pawan Kumar was arrested by the IO on 16.10.2007. 3.17 PW-17 ACP-K. P. Kukreti stated that on 16.10.2007, a DD No. 21 was received in PP-Bhati Mines, regarding missing of a girl- Anshika, aged about 7 years. It was marked to HC Rohtash, who S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 18 /49 alongwith Ct. Praveen, had gone to the spot i.e. 26, Jhanda Colony, Fatehpur Beri, New Delhi. After making the search, a dead body of a girl, wrapped in a plastic bag, was found in the vacant plot, adjacent to the complainant's house. HC Rohtash informed about it, to SI Sanjeev Solanki, In-Charge of PP-Bhati Mines, who had also gone to the spot, and after inspecting the spot, he informed him at about 5.45 PM, regarding discovery of the said dead body. Thereafter, he also reached the spot, at about 7.00 PM, where he met SI Sanjeev Solanki, HC Rohtash, Ct. Praveen, Shashi Bala (mother of deceased), Satender (maternal Uncle of deceased) and few other public persons and police personnel. SI Sanjeev Solanki recorded the statement of Smt. Shashi Bala (mother of the deceased), and sent the rukka to PS-Mehrauli, through HC Rohtash, at 7.20 PM. He called Crime Team and Photographer, on the spot. At about 9.00 PM, HC Rohtash came back on the spot, after getting the FIR registered at PS-Mehrauli. He had handed over the original rukka alongwith copy of FIR, at the spot. Thereafter, he started the investigation, got the spot inspected by the S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 19 /49 Crime Team and got the spot photographed from different angles. He got the dead body identified through her mother and maternal Uncle, at the spot, that of Anshika. He made site plan of the spot, as EX.PW17/A. The dead body was removed from the plastic bag, and sent to Mortuary, AIIMS, for preservation, through HC Suresh. The blood stained plastic bag, in which the body was wrapped, was taken into possession vide memo EX.PW8/A. No. 35-A, and deposited the case property in the Maalkhana. The said DD is EX. PW17/X. He proved his request to Autopsy Surgeon, for conducting the postmortem, as EX.PW17/B, and Form No. 25:35:1 (b), was proved as EX.PW17/C. He proved his request to Autopsy Surgeon for obtaining the opinion on the death of deceased-Anshika, as EX.PW17/D. Before postmortem, the dead body of deceased, was got identified through Rajbir Singh and Harinder Kumar, vide their statements, EX.PW17/E and EX.PW17/F. He also seized handed over eight pullandas alongwith one sample seal of the hospital from Ct. Praveen, vide seizure memo EX.PW16/B. After postmortem of S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 20 /49 the deceased, the dead body was handed over to her father, vide delivery memo EX.PW17/G. Thereafter, he alongwith SI Sanjeev Solanki, HC Rohtash and Ct. Praveen, again reached 26, Jhanda Colony, Fatehpur Beri, as suspicion was on Pawan Kumar. He was interrogated thoroughly, who confessed his crime i.e. having committed the murder of girl child - Anshika, after having sexually assaulting her, for last over 5-6 months. He recorded his disclosure statement EX.PW8/F. Accused was arrested vide arrest memo EX.PW8/B. He seized his blood-stained shirt of checkdaar and cream colour, which the accused was wearing at the time of committing the offence, and after converting it into pullanda, the same was duly sealed with seal i.e. 'KPK', and seized vide seizure memo already EX.PW8/D. Accused also pointed out the place of incident i.e. terrace of the ground floor of H. No. 26, Jhanda Colony, where, a store room was also located. Pointing out memo was proved as EX.PW8/G. Accused was got medically examined at AIIMS hospital. Exhibits were deposited in the Maalkhana. Exhibits of the case, were sent to S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 21 /49 FSL, through Ct. Sandeep, on 26.11.2007. Later on, FSL report was obtained from the FSL, and the same was submitted in the concerned Court, and the same was proved as EX.PW17/H. SI Sanjeev Solanki also obtained the age-proof of deceased-Anshika and of accused, and the same were proved as EX. J1 and H1. He also collected previous record regarding involvement of accused, and during investigation, it was found that the accused was found involved in a murder case in FIR 1082/03 of PS-Nangloi, and the copy of the said FIR is was proved as EX.PW13/A. Sections 376 and 377 IPC, were added on the basis of Post Mortem Report in the case. During the investigation, it was also revealed that accused Pawan used to run a shop of grocery right in front of his house, and was very familiar with the deceased- Anshika, to whom, he used to offer toffees/chocolate, in order to have close intimacy with her. One Om Prakash (Mother Dairy Booth owner) had revealed in his statement that on 16.10.2007, in the afternoon, as a routine, when he had gone to the shop of accused Pawan, to inform him to collect the milk pouches, the shop of accused S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 22 /49 was found to be closed, and he saw accused Pawan alongwith the girl- Anshika at the terrace of his house i.e. 26, Jhanda Colony, Fatehpur Beri, New Delhi, from the gate of the house, from where, one could easily see the inside portion of the house. This fact was revealed to the mother of the deceased, by Om Prakash, at 3.30 PM, when Shashi Bala, the mother of the deceased, while searching her daughter, had gone to enquire from Om Prakash. The other witness-Mahender Kalra, who used to supply the rice, wheat flour etc. to accused Pawan, from his shop in Harsh Roop Colony, Fatehpur Beri. Generally, he used to supply the flour (aata) of Laxmi Brand (Sodhi Flour Mill) and Sehrawat Flour Mill. He had identified the plastic bag of Laxmi Brand (Sodhi Flour Mill), in which he had supplied the wheat flour to him, few days back. The same was identified by him, at the spot also. From the inquiries and statement of Sh. Satender (Maternal Uncle of deceased), it has been revealed that the accused Pawan, on the day of incident, did not allow him to search in the terrace, stating that there is nothing there, and he had already searched that area. From the S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 23 /49 statement of Smt. Shashi Bala (Mother of deceased), the suspicious/unusual conduct came to notice, as on that day, prior to the discovery of the dead body of the girl-Anshika, twice he had, without any reason, told the mother of the girl that Anshika is there only playing on the road, just in front of the house, whereas, she had never asked the same from Pawan. On these basis, and on the basis of blood stains on shirt of accused Pawan, the charge-sheet was filed against him, in the Court. He identified shirt and plastic bag in Court. In his cross-examination he stated that he had received information from SI Sanjeev Solanki, at about 5.45 PM. When he reached the spot, there were 5 to 6 public persons including Complainant, Satender and Accused Pawan present, apart from police officials and the dead body was in the plastic bag/katta. The Crime Team alongwith Photographer and Dog Squad, reached after some time. The Dog Squad could not detect any solid clue. The plastic/katta was semi-open, however, face of the deceased was visible. At the time of postmortem, Doctor had seized the ligature material, and except ligature material, there was no S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 24 /49 other weapon of offence. As the injuries sustained by the deceased, were due to throwing by the accused, so there was no any weapon of offence, on the terrace as well as on the spot, from where the body was recovered. There was no any sharp-edged stone or metal object, on the place, from where the dead body was recovered. He recorded the statement of Satender at the spot, and also recorded the statement of public witnesses-Om Prakash and Mahender Kalra, and SI Sanjeev Solanki, HC Rohtash, Ct. Praveen, etc. SI Sanjeev Solanki typed the statements on his laptop at his dictation, and he signed the printouts of the same, after reading over the same to the witnesses. The printouts were taken from a nearby shop but he could not tell the name of that shop or its distance. SI Sanjeev Solanki came back in 10 minutes, after taking the printouts. By the time he reached at the spot, father of the deceased was already present at the spot. He inquired from him, but did not record his statement. He recorded the statements of public witnesses namely Mahender Kalra, Om Prakash, Satender etc., between 9.00 PM to 12.00 midnight. He stated that he had stated date S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 25 /49 of recording of statements of the witnesses as 16.010.2007, but inadvertently, 17.10.2007 was recorded in his examination-in-chief. Seizure work was done, prior to recording of statements of the witnesses. It took about 1 ½ hours in preparation of site plan, seizing of exhibits, sending the dead body to Mortuary for preservation and preparation of seizure memos. He did not read the rukka, it was independently sent by SI Sanjeev Solanki. SI Sanjeev Solanki had explained the facts of the case and rukka to him. In the rukka, the complainant raised strong suspicion against the accused. Another public witness-Om Prakash, in his statement, also stated that he had seen the deceased with accused. The accused was not arrested on 16.10.2007, because he had not confessed his crime. He came to know from the postmortem report that the deceased was being sexually assaulted for quite some time past, so his suspicion grew stronger and since the mother of the deceased girl had stated about the involvement of the accused person in the past in harassing and teasing the girl, and therefore, the accused was thoroughly interrogated and S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 26 /49 he confessed his involvement in the crime on 17.10.2007, and thereafter, he was arrested. He recorded the statement of mother of deceased on 17.10.2007, between 1.00-2.00 PM. Before preparing the site plan, he had inspected the place of incident i.e. terrace and nearby places of the incident. The place of incident was surrounded by other houses, but next to the house of the accused, there was a vacant plot. He did not inquire from the children with whom the deceased was playing, as they were not available at that time. He admitted that accused was available on the day of incident and during the investigation but he was not cooperating in the investigation, which was evident from the statement of Satender Singh - public witness and the complainant's statement. On the day of incident, he had interrogated the accused person, but he did not reveal the correct facts regarding the incident, despite asking him the relevant questions. The accused was asked about the whereabouts of the deceased girl- Anshika, as during the investigation from the complainant and the other witnesses i.e. Om Prakash, Satender, it came to knowledge that S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 27 /49 deceased girl was in the company of the accused person, and that he did not allow the search of the terrace to be carried by the family members of the deceased girl, prior to reaching of the police at the spot but he also tried to mislead the police not to got to the terrace or make search at the terrace. However, they went to the terrace during the investigation. He stated that the height of the roof of the house of the accused is about 10 Feet from the vacant plot, from where the dead body was recovered. The courtyard from the main entrance of the house of the accused is between 10 to 15 Feet. He could not tell whether there were any tree in that courtyard or not, but the site plan EX.PW11/A does not depict any tree. He stated that he had physically examined that house and according to him, there was no tree in the courtyard from main entrance to the house of the accused. He denied the suggestion that the accused was arrested on 16.10.2007. S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 28 /49 3.18 PW-18 Sh. Raj Kumar, Record Clerk of Deptt. of Forensic Medicine, AIIMS Trauma Centre, New Delhi, stated that Dr. Punit Setia, who examined Pawan Kumar on 17.10.2007 has left the services of the hospital. He brought the record of MLC bearing no. 132234/07 of Pawan Kumar, S/o Sh. Samunder Singh; aged about 27 years, male. As per record, on 17.10.2007 Dr. Punit Setia examined Pawan Kumar. He identified his handwriting and signature as per record on MLC bearing no. 132234/07 and the same was proved as Ex.PW18/A.
4. All the incriminating circumstances were put to the accused when he was examined u/s 313 Cr PC but he denied his involvement in the case. He stated that he has been falsely implicated in the case. He stated that at the relevant time, he was running a grocery shop and he was alone in house in those days. Shashi Bala, her tenant came to his shop and enquired from him if he had seen her daughter Anshika who was missing but he told her that he had not seen her. He took S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 29 /49 Shashi Bala on his scooter to search Anshika and then they came back to his shop. Police took him to police station. He, his father and his brother were tortured and he was made to confess a crime which he did not commit. However, he did not lead any defence evidence.
5. Ld. Addl. PP sought conviction of the accused for the offences of 302/376/377/201 IPC. It was argued that both Shashi Bala and Om Prakash saw accused with the deceased last and soon thereafter she was found dead in a plastic katta. This katta was identified by PW-9 Mahender Kalra to be purchased from him by the accused. It was argued that the accused tried to mislead all by saying that he saw Anshika going on a cart. He also did not allow anybody to go his roof. It was also argued that another case of similar nature was registered against the accused. According to prosecution, the circumstantial evidence is against the accused and therefore he be convicted.
S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 30 /49
6. On the other hand, Ld. Counsel for the accused stated that there is no direct evidence connecting the accused with the offence. He stated that there is no evidence that the accused had committed rape or unnatural offence with the deceased or that he killed her. On the contrary, the accused had himself searched for the deceased with her mother on his scooter. It was argued that there are improvements and time gaps in the deposition of the witnesses specially of PW-2 Shashi Bala and PW-3 Om Prakash in as much as both have improved the timings by one hour in their court depositions. It was stated that the accused was implicated at the instance of Om Prakash who wanted to purchase the property of the accused and on being refused, Om Prakash managed to falsely implicate the accused in this case. It has been argued that it is highly improbable that accused, if at all had to do such an act, would do it in store of his roof when he had the entire house available to him. Further it was argued that the circumstance that the accused did not flee from the spot, rather helped in search of the deceased show his bonafides. So far as the other case is S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 31 /49 concerned, the accused was acquitted in that case. As such, acquittal has been prayed by the Ld. Counsel for the accused. After conclusion of oral arguments, written submissions were also filed on behalf of the accused reiterating above arguments.
7. I have heard both the sides and have perused the records of the case. There is no eye witness to the offences of rape, unnatural sex and murder. The case thus rests on circumstantial evidence. In order to prove its case against the accused beyond reasonable doubt, in a case based on circumstantial evidence, the prosecution is duty bound to prove from the chain of circumstances that it was the accused and only the accused who killed the deceased and none else could have been author of the crime except the accused. All the links in the chain of circumstances must be proved; each and every circumstance must be so interlinked so as to lead to only one conclusion that it is only the accused who is guilty and all other conclusions must be excluded.
S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 32 /49
8. The prosecution has relied upon the depositions of PW-2 Shashi Bala - mother of the deceased and 'last seen evidence' of PW-3 Om Prakash. There is thus evidence on record that the accused was present at the spot at the time of the offence. The same has not been denied by the accused even in his examination u/s 313 Cr PC. So, the presence of the accused at the place of offence at the time of offence is not disputed. Deposition of PW-9 Mahender Kalra has been relied upon to the effect that the accused used to purchase flour from him in plastic gunny bag of SFM brand and the dead body of the deceased was found in one such plastic gunny bag. If the depositions of these witnesses are minutely observed it is noticed that their depositions are reliable. According to PW-2, on 16.10.2007, Anshika left her house to play outside the house after about 12:30 p.m and the accused, who was alone in the house at that time was also present at the gate of the house. At about 1:30 p.m, accused came to her and told her that Anshika was playing outside, at which she asked him as to what was his concern and Anshika should be left playing outside. At about S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 33 /49 2:15/2:30 p.m, accused Pawan again came and told her that Anshika was not playing outside. PW-3 Om Prakash stated that on 16.10.2007, milk-van came at about 1:30 p.m and he visited the house of Pawan to inform him about milk as Pawan used to take 4-5 k.g packed milk from him everyday. When he reached his house and peeped through the iron gate, he found accused on the roof top of the house with Anshika alongwith him. He informed Pawan by shouting that milk- van has come and he can take milk from the shop. So, according to PW-2, at about 1:30 p.m, Pawan came to Shashi Bala to inform her that Anshika was playing outside, at which he was told by her to let Anshika play outside. Thereafter, PW-3 Om Prakash came to the house of the accused to inform him about milk and he saw accused with Anshika on his roof top. Nobody has seen Anshika alive thereafter. From 2:30 p.m onwards, search for Anshika was made and when she could not be found after local searches, DD No.21 was got recorded at 4:02 p.m whereafter, police reached the spot and after search, the dead body of Anshika was recovered in a white plastic bag S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 34 /49 from the vacant plot near the house of the accused. The time gap between the last seen of Anshika with accused and missing of Anshika and recovery of her dead body from the vacant plot adjoining the house of the accused, is not too large so as to raise suspicion regarding complicity of any other person except the accused in the offence.
9. According to the defence, there are improvements and contradictions in the depositions of the aforesaid witnesses and hence they are unreliable witnesses. What is to be remembered and accepted that all persons do not have photographic memory. It is equally true that even if an incident is witnessed by five persons, it is quite possible that all of them may give different accounts of that very incident so far as minute observations are concerned and minor variations in this regard cannot make the prosecution case unworthy of acceptance. In a case like the present one, the accused persons would take all possible precautions to ensure that their acts are not noticed and witnessed by anyone and at the same time they may also S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 35 /49 achieve their ill object. A planning is made by them in their mind in this direction. This probability increases when the offender is known to the victim and even his proximity with the victim sometimes is not noticed as generally they are proximate to each other.
10. The argument raised by the defence counsel is that there is discrepancy in time as narrated by PW-2 Shashi Bala when accused came and talked to her. In Ex. PW-2/A the complainant stated that the accused first came to her at about 2.15 PM to tell her that Anshika was playing outside and then he again came to her at about 3.15 PM to inform her that Anshika was not playing outside. In her court deposition she gave these two timings as 1.30 PM and 2.15/2.30 PM respectively. Although it is correct that if the statement of the complainant Ex. 2/A is compared with her statement made in Court, there is some difference in time but the said difference is not too wide to be fatal for the prosecution. Similarly, time differences have been pointed in the statement recorded u/s 161 Cr PC of PW-3 Om Prakash S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 36 /49 and his court deposition. In his statement u/s 161 Cr PC he stated that the milk van came at about 1 pm while in court he stated that milk van came at about 1.30 pm. The statements are to be read in context with other circumstances. It is not the case of the accused that he was not present there at that time and was present elsewhere at that time. His defence is that he was at his shop and has been falsely implicated in this case. No material has been brought on record as to what enmity the complainant had got with him to implicate him falsely in this case. The defence raised is that the false implication is at the behest of Om Prakash. However, there is no material on record to substantiate such argument. Neither any suggestion was put to complainant Shashi Bala in this regard nor to Om Prakash that it was at the behest of Om Prakash that the accused was falsely implicated in this case. Although, a suggestion was given to Om Prakash that he deposed falsely to put pressure on father of accused for selling house to one Prakash. Again, no such stand was taken in the statement of accused recorded under Section 313 Cr.P.C. That apart, even no defence S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 37 /49 witness has been produced by the accused in support of this version that the implication of the accused in this case is at the behest of Om Prakash. All these shifting stands show the hollowness of the claims of defence.
11. What is relevant is that the accused first told to the complainant that Anshika was playing outside and after one hour, he informed her that Anshika was not playing outside. The behaviour is some what unnatural as there is nothing abnormal in a child playing outside the house. PW-3 Om Prakash also stated that he saw accused with Anshika on roof of accused when he went to the house of the accused to inform him that milk had come. Complainant and PW-3 Om Prakash are natural witnesses and the variations in the timings given by them are too minor as to discredit the deposition to witnesses.
12. There is a difference in Discrepancy and Contradiction. There is at the most only a discrepancy in deposition of witnesses regarding time and not a contradiction. Giving different timing of sighting of accused is, at the most, a case of discrepancy. Hon'ble Supreme Court in State of H. P. v. Lekh Raj (2000) 1 SCC 247 on the aspect of S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 38 /49 discrepancy observed as under:
"Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement."
13. It is well settled that courts are not to discredit depositions in case of minor variations. In Sucha Singh vs. St. Punjab AIR 2003 SC 3617 following relevant observation was made by the Court:
20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and others (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 39 /49 fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hyper sensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties." (Per Viscount Simen in Stirland v. Director of Public Prosecutor (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998).
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
14. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622, it was held :
"...Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 40 /49 probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant..."
15. Similar observations were made in A. Shankar vs. State of Karnataka 2011 (6) SCC 279 in the following words:
17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 41 /49 corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280].
16. An argument has been raised on behalf of the defence that even the FSL results are in favour of the accused. It has been stated that the blood found on the shirt of the accused was reported to be having 'no reaction' whereas the blood group of the deceased was 'O', as per the result of Biology Division of FSL. It is no more res-integra that the FSL results are not the final word and there has to be corroboration from other proved circumstances. Only a faint plea of alibi was taken by accused without leading evidence to prove it. The plea of alibi was thus not proved. Had the plea of alibi being proved on behalf of defence, it would have been a relevant factor that blood of 'O' group S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 42 /49 was not detected from the shirt. But it was not proved. It is true that as per the result of the Biology Division, the blood group of the deceased is found to be 'O' and the blood group on the shirt is found to be 'no reaction' but no benefit can be drawn from this conclusion as even on the plastic bag in which dead body of the deceased was found, the result is 'no reaction', although, blood was oozing from her mouth. The species of origin of blood on all the samples sent for examination in FSL was 'human', as per report. Laboratory analysis was done on 05.06.2008 i.e after more than 7 months. It so happens that the sample of blood are sometimes insignificant in quantity and due to lapse of time, the blood becomes disintegrated so make it difficult for the expert to detect the relevant characteristics of blood. In this regard, a very relevant observation was made by the Hon'ble Supreme Court in the case of Sunil Clifford Daniel vs. State of Punjab 2012 (9) AD-SC 313, in the following words:-
28. Most of the articles recovered and sent for preparation of FSL and serological reports contained human blood. However, on the rubber mat recovered from the car of Dr. Pauli (CW.2) and one other item, S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 43 /49 there can be no positive report in relation to the same as the blood on such articles has dis-integrated. All other material objects, including the shirt of the ac-
cused, two T-shirts, two towels, a track suit, one pant, the brassier of the deceased, bangles of the deceased, the under-garments of the deceased, two tops, dumb bell, gunny bag, tie etc. were found to have dis-inte- grated.
29. A similar issue arose for consideration by this Court in Gura Singh v. State of Rajasthan, AIR 2001 SC 330, wherein the Court, relying upon earlier judg- ments of this Court, particularly in Prabhu Babaji Navie v. State of Bombay, AIR 1956 SC 51; Raghav Prapanna Tripathi v. State of U.P., AIR 1963 SC 74; and Teja Ram (supra) observed that a failure by the serologist to detect the origin of the blood due to dis- integration of the serum, does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it is possible, either because the stain is too insufficient, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain, with some objectivity, no benefit can be claimed by the accused, in this regard.
30. Learned counsel for the appellant has placed very heavy reliance on the judgment of this Court in Sattatiya @ Satish Rajanna Kartalla v. State of Maha- rashtra, AIR 2008 SC 1184, wherein it was held that S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 44 /49 in case the Forensic Science Laboratory Report/Serol- ogist Report is unable to make out a case, that the blood found on the weapons/clothes recovered, is of the same blood group as that of the deceased, the same should be treated as a serious lacuna in the case of the prosecution.
The appellant cannot be allowed to take the benefit of such an observation in the said judgment, for the reason that in the aforementioned case, the re- covery itself was doubted and, in addition thereto, the non- matching of blood groups was treated to be a la- cunae and not an independent factor, deciding the case.
31. A similar view has been reiterated in a recent judgment of this court in Criminal Appeal No. 67 of 2008, Jagroop Singh v. State of Punjab, decided on 20.7.2012, wherein it was held that, once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group (s) loses significance.
32. In John Pandian v. State represented by Inspec- tor of Police, Tamil Nadu, (2010) 14 SCC 129, this Court held:
"....The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 45 /49 science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case."
(Emphasis added)
33. In view of the above, the Court finds it impossible to accept the submission that, in the absence of the report regarding the origin of the blood, the accused cannot be convicted, upon an observation that it is only because of lapse of time that the classification of the blood cannot be determined. Therefore, no advantage can be conferred upon the accused, to enable him to claim any benefit, and the report of disintegration of blood etc. cannot be termed as a missing link, on the basis of which, the chain of circumstances may be presumed to be broken.
17. Since seizure of shirt having blood stains is not under dispute, nothing turns on it that 'no reaction' was noted regarding those blood stains in FSL results.
S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 46 /49
18. Charge under Section 376 and 377 IPC was also framed against the accused. PW-1 Dr. Sushil Sharma deposed on behalf of Dr. Puneet Setia, who had carried out postmortem on the body of the deceased. There is nothing in the postmortem report which suggests that the deceased was subjected to rape or sodomy immediately before her death, although, the anus was found dilated, funnel shaped and vigoricity of anal wall were found diminished. Vaginal wall was found dilated and old healed tear was found present in hymen but no fresh injury was seen. The vaginal swab and anal swab were taken during postmortem and were sent to FSL but no semen was detected on these samples. Under these circumstances, the accused cannot be connected with the dilated anal cavity or vaginal cavity so as to be convicted for the offences under Section 376/377 IPC, although, as per his disclosure, he used to have sexual and unnatural intercourse with the deceased, but for the reason that such disclosure is hit by Section 25 of the Evidence Act and there is no other discovery of fact in this regard pursuant to the disclosure so as to be admissible under S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 47 /49 Section 27 of the Evidence Act. The doubt arises in such a situation and its benefit has to go to the accused. The accused is, therefore, acquitted for the offences under Section 376/377 IPC. However, so far as the offences under Section 302 and 201 IPC are concerned, there are sufficient evidences against the accused on record. The last seen evidence of PW-3 Om Prakash nails the accused that he was seen with the baby Anshika at about 1:30 p.m on his roof top. The accused has not given any explanation as to when he left her company. Rather the stand of the accused is of total denial, which apparently is false. It was also argued that the accused did not flee from the spot, which is a circumstance in his favour. On the contrary, had accused fled away from the spot, the suspicion over him would have become stronger as PW-3 Om Prakash had seen him with the deceased at about 1:30 p.m. The act of the accused in staying at the spot was only with a view to distract the investigation as he rather told that he had seen Anshika going on a cart with some vegetable seller. The body was found near the house of the accused which belies the statement that Anshika was S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 48 /49 seen going on a cart with some vegetable seller. No motive has been brought on record by the accused to show that Om Prakash had any enmity with the accused to falsely implicate him. PW-4 Mahender Kalra has identified the plastic bag, in which the dead body was found, which he had sold to the accused. Only because he had stated that such a katta may or may not belong to his shop, does not go in favour of the accused because even the accused used to purchase katta of the same brand from his shop, as per PW-4 Mahender Kalra. The dead body was found from the plot joining house of the accused. The chain of circumstantial evidence is complete that it was accused and none else, who had killed Anshika by strangulating her and then in order to destroy the evidence of offence, he put her dead body in a plastic katta and threw the same in the vacant plot adjoining his house. The accused is, thus, guilty of committing offences under Section 302 and 201 IPC, for which he is convicted.
Announced in the open Court. (Rajeev Bansal)
Dated:28.11.2013 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 49 /49
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 131/10
(Unique ID No.02403R0120492008)
FIR No. 737/07
PS: Mehrauli
U/S: 302/376/377/201 IPC
State
Versus
Pawan Kumar
S/o Samunder Singh
R/o H No. 26, Jhanda Colony
Asola, Fatehpur Beri, New Delhi
ORDER ON SENTENCE
1. Vide judgment dated 28.11.2013, the accused was convicted for the offences under Section 302 and 201 IPC. The matter is today listed for arguments on quantum of sentence.
2. Ld. Counsel for the convict has argued that at the time of the offence/arrest, convict was in the age group of 19-20 years and this S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 50 /49 offence is of the year 2007 and since then he is in custody. It has been stated that the convict is of tender age. Further, it is stated that although the convict has one younger brother but the said brother is not residing with his parents and is residing separately. His parents are of old age, in their sixties. It is stated that he is the only earning hand in his family and, therefore, a sympathetic consideration may be taken in passing the sentence against him.
3. Ld. Addl. PP has stated that the maximum sentence as prescribed by law may be imposed on the convict.
4. I have heard both the sides and have considered the records of the case. Baby Anshika, who died, was of 7 years of age. The conviction is under Section 302 and 201 IPC. The law prescribes a sentence of death or of life imprisonment and fine for the offence under Section 302 IPC. It is not a case where any special circumstances occur which warrant the imposition of death penalty in this case. Therefore, the convict is awarded a sentence of life S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 51 /49 imprisonment with a fine of Rs.15,000/- , in default of which, he shall suffer SI for a further period of one year.
5. For the offence under Section 201 IPC, law prescribes any sentence of any description upto the period of 7 years and fine. Having regard to the circumstances of the case, age of the convict and his family circumstances, I deem it appropriate to award the sentence of 5 years RI with a fine of Rs.10,000/-, in default of payment of which, a SI for a further period of 6 months shall run. Both the sentences shall run concurrently. Convict shall be entitled to the benefit of Section 428 Cr.P.C for the period already undergone by him. The fine amount of Rs.25,000/- imposed on the convict shall be paid as compensation to the parents of the deceased, if deposited. The parents of the deceased Anshika shall also be entitled to compensation as per Section 357A Cr.P.C from the State Government.
S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 52 /49
6. Copy of the judgment and sentence be given to the convict today free of cost.
Announced in the open Court. (Rajeev Bansal)
Dated:29.11.2013 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 131/10 FIR No. 737/07 State vs. Pawan Kumar 53 /49