Delhi District Court
Sc No. 19/04 1 State vs Jyotish Prasad Etc. on 2 August, 2008
SC No. 19/04 1 State Vs Jyotish Prasad etc.
Judgement FIR No. 112/04, PS IGI Airport
IN THE COURT OF SH VINOD KUMAR ADDL. SESSIONS JUDGE
NEW DELHI
SC No. 19/04
FIR No. 112/04
PS IGI Airport
State Vs 1 Jyotish Prasad S/o Faturi Shah
R/o Vill. Kishan Pur Tola, PS Amar Pur
Distt. Banka, Bihar
2 Ashish Kr. Kapri S/o Rajinder Kapri
R/o Sobhan Pur, PS Amar Pur,
Distt. Banka, Bihar
Date of Institution 16.7.2004
Date of arguments - from16.7.2008 to 30.7.2008
Date of Judgment 2.8.2008
JUDGMENT
1. Prosecution case in brief is that in early hours of 17.3.2004 Ms Dawn Emelie Griggs, aged about 60 years and an Australian citizen, reached IGI Airport from Australia in Flight No. CX753 and took a taxi no. DL1T2248 from prepaid booth at about 2:30 am. The driver of this taxi was accused Jyotish Prasad. It is alleged that this accused along with his co accused Ashish, who is also a taxi driver, were already planning to SC No. 19/04 2 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport loot some passengers. When accused Jyotish Prasad had taken this Australian lady in his taxi, she appeared to be an easy prey. After travelling a short distance, accused Ashish was also admitted in the taxi by accused Jyotish Prasad and then they took the taxi on a Kachha way towards jungle. On this she started shouting. It is alleged that accused Ashish caught hold of her and inserted a piece of cloth, which was available in the taxi for the cleaning purposes, in her mouth and thereby gagged her. Thereafter they stopped the car near a well in the jungle, snatched the purse of the lady from her waist. The lady resisted. She was therefore taken out from taxi and was dragged near bushes and thereafter they raped her one by one. The accused persons felt that if the lady is alive, she would report the matter to police. Therefore they used a screwdriver available in the taxi and caused injuries on her person. They also throttled her and killed her. Thereafter they took out the luggage of the deceased from the taxi and took search the same. They took out the currency and traveller's cheques etc. from the bags and threw the bags in the well which was dry.
SC No. 19/04 3 State Vs Jyotish Prasad etc.
Judgement FIR No. 112/04, PS IGI Airport
INVESTIGATION
2. On 17.3.04, one information was received at 10.50 am in the police station IGI Airport, Delhi that a dead body of a female was lying in jungle near Bharat Petroleum Gate, IGI Airport. This information was reduced to writing as DD no. 3A ( EXPW1/A). The said DD was marked to SI Suresh Chand (PW27) who left for the spot alongwith constable Anil Kumar. Inspector J.L. Meena (PW29) the Investigating Officer of the case came to know about this fact and he also made departure from police station IGI Airport vide DD No. 4A ( EXPW1/B) recorded at 10:55 am.
3. At about 11.20 am Investigating Officer had reached the spot in a government vehicle. A dead body of female foreign lady was lying in a jungle situated 300 metre away from Bharat Petroleum depot. Blood was lying at the spot and a piece of cloth was inserted in the mouth of that lady. Investigating Officer also noticed the injury near right eye, near nose of the deceased. Investigating Officer also noticed some bluish marks on her neck. One plastic bottle and spectacles was lying SC No. 19/04 4 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport near the dead body. The bottle was of Evian brand. After search near the spot, Investigating Officer found that some articles were lying in a dry well near the spot. The dry well was situated at about 150 metre away from the spot where dead body was lying. At the request of Investigating Officer, Murari Pandey ( PW16), who had also reached at the spot after seeing the police party, took out the articles from the well. The articles were one red bag middle size, two black bags and some loose papers, books and pair of shoes. A tag of Airlines CX753 was found affixed on all the three bags. The bags were checked. Two photocopies of passport were recovered from the said bag. One was of Australian passport and other was of British. The name of holder of passport was written as Dawn Emelie Griggs. The bag was also containing clothes, cosmetics articles, books etc.
4. One photograph was also recovered from her baggage and this photograph was also visible in the photocopies of passport. After comparison with the photograph and photocopy of passport, Investigating Officer came to know that dead body was of Dawn Emelie SC No. 19/04 5 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport Griggs. Investigating Officer prepared rukka EXPW29/A after making endorsement on DD No. 3 A. Rukka was handed over to constable Anil for registration of FIR. Crime Team and Dog Squad were also called. After sometime the Crime Team reached the spot and photographed the dead body place of incident and surrounding places. Photographs of bags etc. taken out from the well were also taken. Site was inspected by the Crime Team members and they also inspected the plastic bottle and other articles. The finger Print Team reached the spot and they lifted the finger print from the glass, one plastic lunch box and from one bottle of plastic and from the polythene pouch and a folder after taking the same out of the bags. These articles were separated and same were converted in sealed pulanda and sealed with seal of JLM and seized vide seizure memo EXPW5/C. The bags and articles were seized vide memo EXPW2/D . Bottle make Evian and spectacles were taken in possession and sealed with the seal of JLM. These two articles were seized in two separate pulandas and sealed with the seal of JLM and seized vide memo EXPW2/A . Blood stained earth and earth control was also lifted from the spot and were sealed separately and sealed with the seal of JLM and seized vide memo SC No. 19/04 6 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport EXPW2/C.
5. I.O. had found the earrings of deceased lying near the head and these earrings and the belongings of the lady which she was wearing at that time were removed and sealed with seal JLM and seized vide memo EXPW2/B. These articles were Citizen Watch, two rings, one Chutki, one Mala of stone, one ring on which ''Param Pita Shiv Parmatma'' was written. Investigating Officer prepared site plan EXPW29/B . Air tickets EXPW29/C and two copies of passports ( collectively EXPW29/E) which were recovered from the baggage of deceased were kept on record. Application for Traveller cheques recovered from the bag is EXPW29/D.
6. Form 25. 35(1B) was filled in. Constable Anil reached the spot after registration of FIR No 112/04 ( copy of the same is EXPW1/C).
7. Dead body was handed over to constable Anil and HC Jaibhagwan. An application EXPW29/G addressed to Incharge Safdarjung Hospital requesting him was also handed over to constable Anil to preserve the dead body for 72 hours was handed over to constable Anil. The finger print expert and crime team officials handed SC No. 19/04 7 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport over their report to the Investigating Officer. The crime team report is EXPW28/A. Thereafter Crime team officials and Dog squad officials left the spot. Investigating Officer left the spot alongwith SI Suresh Chand( PW27) and reached IGI airport ( Arrival) and Investigating Officer collected the details of flight from SI Surender Latia (PW8), who was posted at IGI Airport and to whom Investigating Officer had directed to collect the details from Immigration office. The photocopies of the Flight Chart which were handed over to Investigating Officer were seized vide memo EXPW8/A . Photocopy of disembarkation card, photocopy of flight manifesto record of Bureau of Immigration etc. are EXPW8/B,C,D&E. After reading these documents, the Investigating Officer came to the conclusion that passenger ( ie the deceased) had reached at IGI airport in the early morning by CX Flight. Thereafter, Investigating Officer searched for Delhi Tourism Booth, ITDC, Nitin Counter and prepaid booth. When Investigating Officer alongwith other police officials was verifying at the prepaid booth, prepaid taxi counter and contacted the prepaid taxi staff, one Mahenderpal ( PW3) the SC No. 19/04 8 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport Incharge of Prepaid Taxi Booth met them there. He provided a carbon copy of a voucher (EXPW3/B) which was issued in the name of the deceased and place of destination was shown as Karol Bagh and fare was written as Rs 250/. He also told police officials that taxi no DL1T 4428 had taken Dawn Griggs. This document which were provided by the prepaid taxi staff were seized vide memo EXPW3/A.
8. Investigating Officer also seized Photocopy of register EXPW3/C. The original register was later placed on judicial file during evidence and was also exhibited as EXPW3/C. In this register, the record of the taxies taken by the passengers from the Prepaid Booth is maintained. Investigating Officer started the search of taxi owner and taxi owner Rakesh (PW11) was found in the parking of IGI Airport. Notice u/s 133 MV Act was served upon him and it was asked from him that who was driving the taxi in the intervening night of 16/17304. He told Investigating Officer the name of driver as Jyotish Prasad (i.e. the accused herein). Rakesh made his reply on the same notice U/s 133 MV Act. The notice is EXPW29/J and reply is EXPW29/K. Thereafter, SC No. 19/04 9 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport owner of the taxi Rakesh Kumar led the police party to the house of Harender at Shahbad where accused Jyotish Prasad was residing as a tenant. He produced the accused before Investigating Officer. The accused was interrogated in the way near Shahbad road. The confession of accused Jyotish Prasad was recorded which is EXPW27/A. In this disclosure he stated the name of his accomplice as Ashish. Thereafter, accused was arrested in this case. His personal search was taken vide memo EXPW27/B. From the personal search of Jyotish Prasad, one purse containing one US Dollars, Rs 240/ one telephone diary, one driving licence and one mobile phone Nokia, one key of taxi maruti van no DL1T 4428 and one prepaid voucher EXPW3/D which was the driver's copy issued to drop passenger Griggs Dawn to Karolbagh. The voucher no of EXPW3/D was 88919. On this voucher , name of passenger was written as Griggs Dawn, taxi number was written as 4428. The same was taken in possession vide memo EXPW27/C.
9. Thereafter accused Jyotish Prasad led the police party to the taxi stand situated near IGI airport and pointed out the taxi No DL1T 4428.
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Taxi was seized vide seizure memo EXPW27/H. The driving licence of accused is Expw27/B1. Underwear EXS15 of Jyotish Prasad was also taken in possession which he was wearing and same was seized with seal of JLM and taken in possession vide memo EXPW27/D. Accused pointed out place of incident and he also identified the well where he dropped the belongings of accused. Accused also pointed out the sewer main hole where he had dropped some cards and passport of deceased Dawn Griggs after the offence. He also pointed out the place where he had concealed his share looted from the deceased.
10. Pointing out memo of place of occurrence is EXPW27/D. Pointing out memo of the well in which the bags of deceased were thrown is EXPW27/E. Pointing out memo of sewer hole is EXPW27/F. Pointing out memo of place where the dead body of deceased was lying is EXPW27/K.
11. Accused Jyotish Prasad led police to a gadda (well) which was 1415 feet deep. In presence of police party he entered the well and after digging some soil with the help of hand he took out a Potli and thereafter SC No. 19/04 11 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport he came out from the Gadda/ kachacha well alongwith the Potli. It was opened and checked. 300 Australian Dollars, Traveller Cheques 7 in number, four notes of Hongkong Dollars in denomination of 100/ each, 2 notes of Hongkong Dollars in denomination of 20/ each were found in the Potli. Traveller Cheques were in the name of Dawn E. Griggs ie the deceased. These articles were seized vide seizure memo EXPW27/G. Thereafter, Investigating Officer alongwith police officials again visited Prepaid Taxi parking . Crime Team officials had already been informed to inspect the recovered taxi. When the Investigating Officer alongwith other police officials reached there, they were already present there. Taxi was inspected by the members of the Crime Team and the Crime Team officials recovered one Jungli Gokharu from the right side tyre of rear seat. One Gokharu was recovered from the mat which was lying near rear seat and mud was also removed from all the four tyres. Some hair were also lifted from inside the taxi. The abovesaid articles were converted in sealed pulanda and sealed with seal of JLM and seized vide memo EXPW27/1. The Crime Team officials SC No. 19/04 12 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport submitted Crime Team Report which is EXPW28/B and Finger Print report is EXPW5/B regarding the finger prints lifted from taxi was prepared by Finger print expert on 17.3.04 which is related to the Taxi.
12. Finger Print Report EXPW5/A regarding the finger prints lifted from the articles of the bag of deceased was prepared by the finger Print Expert on 17.3.04 at the spot in the morning time. The taxi was seized and taken in possession vide seizure memo EXPW27/H. Thereafter Investigating Officer alongwith other police officials reached Prepaid Booth, situated at Arrival of IGI Airport. One Vijay Kumar (PW4) employee of Prepaid Taxi department met Investigating Officer there. Investigating Officer had verified facts from him. He informed Investigating Officer that he had issued the voucher/receipt of prepaid taxi for foreign lady namely Griggs Dawn. Statement of Vijay Kumar was recorded. Statement of HC Upender (PW15) was also recorded U/S 161 CrPC in whose presence deceased lady had boarded the taxi No DL1T4428 of Jyotish Prasad. Investigating Officer came back to the police station and deposited the case property in the malkhana.
SC No. 19/04 13 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
13. In his disclosure, accused Jyotish Prasad had disclosed the name of Ashish as his accomplice. Therefore, Investigating Officer started the search of co accused Ashish. Investigating Officer alongwith the other members of his staff, reached the taxi stand. The accused, Ashish Kumar was produced by one Kishanpal, owner of another taxi. Investigating Officer alongwith other police officials started interrogation of Ashish Kumar but he did not disclose anything and tried to mislead them. Accused Ashsish was handed over to SHO for further interrogation. Investigating Officer went to Safdarjung hospital for the postmortem of deceased alongwith the other police officials.
14. In the meantime Rajesh Kumar (PW25), Consul officer of Australian High Commission reached there and his Consular General of Australian High Commission also reached there. A team of doctors conducted postmortem. Dead body was handed over to Mr Josef who was appointed by the Australian High Commission (AHC) to collect the dead body. Thereafter Investigating Officer went to the court and accused Jyotish who was in the custody of SI Suresh was produced before SC No. 19/04 14 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport the concerned Metropolitan Magistrate and Investigating Officer obtained police custody remand of Jyotish Prasad. From the court the Investigating Officer came back to police station alongwith accused Jyotish Prasad.
15. On 18.3.04, accused Ashish was released with the direction to appear on the next day. On next day accused Jyotish was again interrogated who disclosed that he alongwith accused Ashish had thrown the passport of deceased and other documents in the sewer. He also disclosed that he had handed over weapon of offence ie Screw Driver to Ashish. He had disclosed these things on 17.3.04 and he also disclosed these facts on 19.3.04. Accused Ashish was again called in police station on 19.3.04 and was interrogated again. But he did not accept about the commission of offence. He was again released with the direction to visit police station on 20.3.04.
16. On 20.3.04, Jyotish led the police party at Sewer situated near Bharat Petroleum and sewer was searched with the help of contractor employee of airport. During search, five cards and one plastic cover was SC No. 19/04 15 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport recovered. On two cards, there was address of Australia and one card bore the address of USA. These articles were seized vide memo EXPW9/A .
17. Accused Ashish again visited the police station but he did not disclose anything and denied about the knowledge of the case. He was again released on 20.3.04 with direction to appear on 21.3.04.
18. On 21.3.04 The Investigating Officer interrogated Jyotish Prasad again regarding the involvement of accused Ashish. Accused Jyotish had disclosed in his disclosure statement EXPW27/A that the screw driver used in the crime was given by him to accused Ashish. Then accused Ashish was thoroughly interrogated and he also disclosed about commission of offence and about the share which he had received from the looted amount and screw driver. Disclosure statement of Ashish is EXPW27/J. Accused Ashish was arrested vide arrest memo EXPW13/A.
19. Accused Ashish had pointed out the place of offence vide pointing out memo EXPW27/K . He also pointed out the place where he SC No. 19/04 16 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport had thrown the luggage of deceased. Thereafter, accused Ashish took the police party 3035 steps away from the dry well and pointed out the place where he had thrown the screw driver after causing injury on the person of Griggs Emile. Thereafter he took out the screw driver EXA1 from silt ( Kichar). The Investigating Officer had prepared the sketch of screw driver which is EXPW27/N and seized the same vide memo EXPW27/P and he also prepared the rough site plan EXPW27/O regarding recovery of screw driver. Accused, Ashish again took the police party to the main hole sewer IGI airport and pointed out the place where he had thrown the cards and passport of deceased alongwith co accused Jyotish Prasad.
20. Employees of contractor Nasruddin ( PW9) were busy in search of passport in the sewer. In the end of sewer near Treatment Plant Jali, a passport was recovered. An Australian passport cover was taken out by employee of contractor and same was shown to the accused persons. Both accused ie Ashish and Jyotish Prasad identified the cover of Australian passport as the same which belonged to deceased and SC No. 19/04 17 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport which they had thrown in the sewer. The inner portion of the passport was damaged due to water. The passport cover was taken in possession vide memo EXPW9/B. The passport cover is EXP7. Statement of Nasrudin and Virpal who entered the sewer and searched these documents were recorded.
21. Thereafter accused Ashish led the police party in the jungle 350 metre away from Shahbad in Samalka side. He had pointed out the place and from the bushes he took out a white colour polythine which was opened and it was containing Rs 5400/ of Indian currency, 260 Australian dollar, 54 coins of different countries such as Australia, Neuziland, Hongkong etc. He also took out one shirt EXS17 from the bushes and told the Investigating Officer that he was wearing this shirt at the time of commission of offence. Shirt and other recovered articles were converted in two separate sealed pulandas and seized vide seizure memo EXPW27/Q. Investigating Officer had noticed some stains on the shirt. Thereafter, Investigating Officer came back to the police station alongwith accused Ashish and other staff. Accused Ashish was produced SC No. 19/04 18 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport in the court on next day ie on 22.3.04, in the court of Sh Ravinder Dudeja, Ld Addl. Chief Metropolitan Magistrate, New Delhi.. Investigating Officer obtained two days police custody remand. No recovery was effected during the Police remand.
22. Investigating Officer called SI Madan pal (PW10), Draughtsman who prepared a scaled site plan EXPW10/A on the instructions of the Investigating Officer .
23. On 23.3.04, both the accused persons were produced before the Doctor Sarvesh Tandon (PW26), Safdarjung hospital through SI Vivek Pathak. After medical examination of accused persons, SI Vivek Pathak had produced six pulandas duly sealed with the seal of Safdarjung hospital, reportedly containing scalp hair, pubic hair and blood gauze of both the accused persons alongwith sample seal of Safdarjung hospital. The memo is EXPW18/A. SI Vivek pathak (PW18)also handed over Investigating Officer the postmortem report of deceased and 9 sealed pulandas which were prepared by the doctor after the postmortem of Dawn Griggs Emile. These sealed pulandas were duly sealed with the SC No. 19/04 19 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport seal of Department of Forensic Medicine Safdarjung hospital and were seized vide memo EXPW18/B.
24. On 1.4.04, Investigating Officer again went to the jungle where accused persons had committed the offence. Investigating Officer lifted six Gokharus( wild thorns) from the place of incident as a sample. Same were converted in sealed pulanda and sealed with seal of JLM and pulanda of gokharus was seized vide memo EXPW29/N . During investigation finger prints of accused persons were collected by the Investigating Officer and were sent to Malviya Nagar for comparison.
25. On 22.4.04 exhibits of this case were sent to FSL Rohini through HC Ranbir (PW12).
26. On 28.4.04, the photographer of Crime Branch handed over photographs of this case to the Investigating Officer which were 22 in numbers are EXPW15/A.
27. 19.5.04, Investigating Officer went to British High Commission and employee of British High commission handed over him the photocopy of FAX regarding receipt of dead body by her son Adam SC No. 19/04 20 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport Spinner. The letter is EXPW23/B. Another letter is EXPW23/C. These original letters were seized on 2.6.04. The abovesaid two letters were seized vide memo EXPW23/A. Challan was prepared on 26.5.04 and was filed in the court . The case was committed to Sessions court on 8.6.04 and was allocated to this court which was being presided over by Sh S.L. Bhayana, the then Ld. Addl. Sessions Judge, New Delhi at that time.
28. When Investigating Officer went to FSL to collect the report in this case, they informed him that more blood of accused persons persons is required for comparison and detailed examination. An application was moved before Sh S.L. Bhayana, the then Ld Addl. Sessions Judge who permitted Investigating Officer to produce the accused persons before the doctor to collect blood samples vide order dt. 1.10.04.
29. On application of Investigating Officer, Sh S.L. Bhyana, Ld ASJ allowed him to collect the blood of both the accused persons vide order EXPW22/C. Thereafter accused persons were produced before the doctor on 7.10.04 and blood samples of both the accused persons were SC No. 19/04 21 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport collected by the doctor and Dr Sarvesh Tandon(PW26) handed over pulandas of blood sample to SI Anil Malik (PW22) alongwith sample seal of Department of Forensic Medicine.
30. On 8.10.04, both the pulandas of blood was handed over to SI Amleshwar Rai (PW21)to deposit the same in FSL Rohini.
31. On 22.11.04, HC Rawat Singh (PW17) had collected the result from FSL Rohini . On perusal of this report, Investigating Officer, offence of rape was also disclosed and therefore Investigating Officer incorporated Section 376(g) IPC in the supplementary chargesheet dt. 23.11.04 and said chargesheet was submitted in the court.
32. Since Blood group of both the accused persons was the same, the Investigating Officer again requested for DNA test to the FSL deptt and concerned pulandas of both the accused were again sent to FSL for DNA test. After collecting the DNA report supplementary chargesheet dt. 30.3.05 was submitted. The DNA report is EXPW6/K,L,M,N,O,P,Q.
33. DNA report indicates that the semen on the clothes of the deceased and the vaginal swab and slides of the deceased matched with SC No. 19/04 22 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport the semen on the underwears of both the accused persons as well as with their blood. It was therefore clear that both the accused persons had committed rape upon the deceased. As per DNA report the DNA profiles of the Biological fluid present on the source of the exhibits '14' (ie cotton wool swab said to be vaginal swab from the deceased, 15b,15c, 15d, ( ie microslides said to be vaginal slide from the deceased ) are identical with the profiles from the source of the exhibits '1' ( ie blood sample of accused Jyotish ), '8' ( ie underwear of accused Jyotish Prasad) and '3' ( ie blood sample of the accused Ashish) and '9' ( ie underwear of accused Ashish). CHARGE
34. A Charge for offence U/S 120B/ 394/ 397/ 404/302 201/34 IPC was framed against both the accused persons to which both accused persons pleaded not guilty.
35. After filing of supplementary chargesheet, a charge U/S 376 (g) IPC was also framed against both the accused persons to which they pleaded not guilty and claimed trial.
SC No. 19/04 23 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport PROSECUTION WITNESSES
36. In order to prove its case, prosecution examined as many as 30 witnesses in all.
PW1 is ASI Devi Ram. He has testified that on 17.3.04 he was posted at PS IGI Airport and was working as Duty officer. On that day at about 10.50 am he received wireless message and and same was recorded by him in DD register as DD 3 A and proved copy EXPW1/A. He further testified that he also recorded departure entry of Addl. SHO JL Meena vide DD no 4 A, copy is EXPW1/B. He has also recorded FIR of this case. Copy of the same is EXPW1/D. PW2 is HC Jaibhagwan. On 17.3.04 he was posted at PS IGI airport and on that day he accompanied inspector JL Meena to the spot in jungle near Bhart petroleum behind IGI airport.
PW3 is Mahenderpal . He has testified that on 17.3.04 he was posted as Incharge Prepaid Taxi Service Airport, terminal II and produced the record to the IO and same were seized vide memo EXPW3/A. He also produced photocopy of prepaid taxi register and SC No. 19/04 24 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport proved copy of voucher EXPW3/B issued to the deceased.
PW4 is Vijay Kumar Sharma. He has testified that on 17.3.04 he was posted at IGI Airport Terminal II at prepaid taxi booth as counter helper. He testified that at about 2.30 pm he filled the voucher at serial no. 88919 and he alloted taxi no. DL1T4428 to the passenger namely Griggs Dawn. Carbon copy of voucher is EXPW3/B. PW5 is SI NK Sharma, Finger Print Expert. He has testified that on 17.3.04, he was posted in the finger print Bureau as an expert. On receipt of call, he alongwith SI Vivek Pathak reached the spot. There a dead body of an old lady was lying . After examining the dead body he thoroughly searched the nearest area . From a dry well, some belongings of deceased were taken out and articles were examined by him. Chance prints were developed by him and his report is EXPW5/A. He also examined Maruti Van no. DL1T4428 and developed six chance prints and his report is EXPW5/B. PW6 is Sh A.K. Shriwastva, Sr. Scientific Officer. He has testified that he has examined all the parcels containing exhibits and SC No. 19/04 25 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport submitted his report including serological report on 19.11.04. He proved his report EXPW6/AG(collectively).
PW7 is Sanjay Kumar Jha, Finger Print Expert. He has testified that on 20.4.04, he received the case file alongwith lifted chance print marked Q1 to Q13. He proved his report EXPW7/A, EXPW7/B and EXPW7/C. PW8 is SI Surender Singh Lathia . He has testified that on 17.3.04, he joined investigation with inspector J.L Meena and went to Immigration department IGI airport and collected the record pertaining to the deceased and collected disembarkation card computer details etc and gave to the Investigating Officer and same were taken in possession vide respective memos.
PW9 is Nasrudin. He has testified that he is contractor of Sewer Safai (cleaning). ON 20.3.04, he deployed Veerpal and Rajesh to clean the sewer place . Some cards were recovered on that day and were seized vide memo EXPW9/A. On 21.3.04 labour was again deployed to search the other SC No. 19/04 26 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport documents . One cover of passport was also recovered and IO seized the same vide memo EXPW9/B. PW10 is SI Madanpal. He has testified that on 7.4.04 on the direction of Investigating Officer, he took rough notes and measurement of the spot and thereafter prepared scaled site plan on 15.4.04 which is EXPW10/A. PW11 is Rakesh Kumar. He has testified that that he is the owner of taxi no. DL1T4428 and on the day of offence, accused Jyotiswh Prasad was deployed its driver. He also produced original delivery receipt of this taxi, cash receipt etc to prove the ownership of the taxi. Photocopies of these documents are proved as EXPW11/AF. PW12 is HC Ranvir Singh. He has testified that on 19.4.04 he took 22 exhibits alongwith sample seal vide RC no 10/21/2004 to FSL Rohini and deposited the same.
PW13 is Praveen Kumar. He has testified that accused Ashish was their driver on taxi no DL1T3372 and on 21.3.04 he had signed the arrest memo of accused Ashish and same is EXPW13/A. SC No. 19/04 27 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport PW14 is HC Mohd Qamuruddin. He has testified that on 17.3.04 he was posted at police Head Quarter, Police Control Room. At about 10.30 am he received a message given by one Suresh that dead body of a lady is lying near bushes at Bharat Petrol Pump near IGI airport. Thereafter he filled up the form and forwarded the same for flashing the message. Original form is EXPW14/A. PW15 is HC Upender Singh. He has testified that on the intervening night of 16/17304, his duty was at prepaid booth. Vijay Kumar, clerk of prepaid booth handed over him the voucher of Taxi no. DL1T4428. He took the foreigner lady ( deceased) who boarded in taxi no. DL1T 4428. Accused Jyotish Prasad was driving the said taxi at the time when she boarded the said taxi. Witness correctly identified the photograph ( EXPW15/A) of that lady (ie the deceased).
PW16 is Murari Pandey. He has testified that on 17.3.04 at about 1.30 am at the direction of police, he reached near a well behind Bharat Petrol pump. He took out three bags and papers and plastic bag from the dry well. Same were seized by the police vide memo SC No. 19/04 28 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport EXPW2/D. PW17 is HC Rawat Singh. He has testified that on 19.4.04 he was posted at PS IGI airport as MHCM. On that day at the direction of the Investigating Officer, he handed over 22 sealed exhibits and three sample seals to HC Ranbir.
He further testified that on 22.11.04, he went to FSL Rohini and collected the report alongwith the exhibits and gave to MHCM Hariram.
PW18 SI Vivek Pathak has testified that on 23.3.04 he had joined the investigation of case alongwith Investigating Officer. Both accused were handed over to him for medical examination alongwith application in the name of Head of Department of Forensic science and Medicine, Safdarjung Hospital. He collected the postmortem report and exhibits related to deceased. Both the accused were also produced before doctor to collect the blood sample, scalp hair and pubic hairs. Doctor examined both of them and collected blood sample etc and same were handed over to him.
Postmortem doctor also handed over him nine exhibits related SC No. 19/04 29 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport to deceased. He further testified that he handed over six pulandas to the Investigating Officer and same were seized vide memo EXPW18/A. All the pulandas and seals remained intact in his possession.
PW19 is Darshan Kumar. He has testified that taxino DL1T 4428 was in his name and he had sold the same to one Rakesh. He also produced original RC and permit of the taxi which is EXPW19/B&C. PW20 is Parshuram Singh, Sr Scientific Officer. He has testified that on 13.9.04 he was posted at FSL Rohini. On that day he received three parcels from Biological Department. After examination, he submitted his detailed report EXPW20/A. PW21 is SI Amleshwar Rai. He has testified that on 8.10.04 he was posted at IGI airport. On that day he collected four blood samples in sealed condition and two sample seals of Department of Forensic Medicine and he deposited the same with concerned clerk of FSL.
PW22 is SI Anil Malik. He has testified that on 7.10.04, he was posted at PS IGI airport. On that day inspector J.L. Meena handed over him copy of order of Sh S.L. Bhayana, Ld ASJ and as per order he went SC No. 19/04 30 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport to Tihar jail and order was served to jail superintendent. He further testified that that he took both the accused to Safdarjung hospital and blood of both accused was collected. Doctor gave him four parcels and two sample seals and same were seized vide memo EXPW22/A&B. PW23 is constable Maan Singh. He has testified that on 17.3.04, he was posted at IGI airport. On that day duty officer handed over him three copies of FIR to deliver the same to Ld Addl. Chief Metropolitan Magistrate New Delhi, DCP IGI airport and Joint Commissioner of Police.
PW24 is Varun Gupta, Consular Officer, Australian High Commission . He has testified that on 2.6.04, he was posted as a Consular Officer in Australian Embassy. On 2.6.04, he handed over the two letters to the Investigating Officer which were seized vide memo EXPW23/A. Letter EXPW23/C was sent by Adam Spinner, son of deceased. It was regarding return of belongings of deceased. The second letter is EXPW23/B. It was regarding the receipt of dead body of deceased. Both the letters were received in the embassy by the Embassy SC No. 19/04 31 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport staff.
PW25 is Rajesh Kumar. He has testified that on 18.3.04, he was posted as Consular Officer in Australian High Commission. On that day, he had gone to Safdarjung hospital mortuary alongwith Jojef who was Undertaker staff of Morgan undertakers. After postmortem of Dawn Emile Greggs, her dead body was handed over to Joseph.
PW26 is Doctor Sarvesh Tandon. He has testified that on 18.3.04, he conducted postmortem examination on the dead body of deceased. He proved the postmortem report which is EXPW26/A. He further testified that he he also medically examined accused Jyotish Prasad and Ashish as EXPW26/B and EXPW26/C respectively.
PW27/1 is Josef David. He has testified that on 18.3.04, in presence of Rajesh Kumar, Counsular of Australian Embassy, he collected the dead body of deceased Dawn Emile Griggs from the mortuary of Safdarjung hospital. Same was seized vide memo EXPW24/A. PW27 is SI Suresh Chand. He has testified that on 27.3.04, he was posted at PS IGI Airport. On receipt of DD no 3 A, he reached at the SC No. 19/04 32 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport spot and found a dead body of a lady. He took part in the investigation with Inspector J.L. Meena.
PW28 is Inspector Ajeet Singh. He has also proved various investigation aspect and joined investigation with the Investigating Officer.
PW29, Inspector J.L. Meena is the Investigating Officer and has concluded the entire investigation.
STATEMENTS U/S 313 Cr.PC OF BOTH THE ACCUSED
37. After recording of evidence, statement of both the accused persons U/S 313 CrPC were recorded in which both the accused persons denied all the allegations and stated that they have been falsely implicated in this case.
38. Although during their statement U/S 313 CrPC both the accused persons preferred to lead evidence in defence but later on, they refused to lead evidence in defence.
39. Both the accused persons stated in their statement that the owner of the car has committed this offence. However, he was let off by SC No. 19/04 33 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport the police due to certain extraneous reasons and instead of him, police has falsely implicated them.
40. The present case is based on circumstantial evidence. Ld defence counsels have vehemently assailed the circumstances pressed by prosecution. I take the submissions of Ld Defence Counsels one by one. IS IT A CASE OF ROBBERY ?
41. It is argued by Ld defence counsels that neither it is a case of robbery nor it is a case of rape . Ld defence counsels have drawn my attention to the fact that jewellery was very much found on the dead body. Ld defence counsels have also drawn my attention to the recovery memo EXPW2/D vide which various articles which are collectively EXP5 belonging to the deceased were recovered from a well. Ld defence counsels have drawn my attention that these articles were contained in one Air Bag mentioned at S. No.1 and one black colour bag mentioned at S.No. 2 in the recovery memo EXPW2/D. Ld defence counsels have argued that the black bag mentioned at serial no. 2 contained various articles including three Traveller Cheques, an application for Traveller SC No. 19/04 34 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport Cheques of Common Wealth of Australia, one pouch containing antique jewellery and one small camera. It is argued by Ld defence counsels that it is very strange that accused persons did not take away these precious jewellery, camera and Traveller Cheques from this bag. Ld defence counsels have drawn my attention to note no. 2 at the end EXPW2/D in which it is stated the Crime Finger Print Bureau Team developed finger prints from some of the articles taken up from the articles of these bags. Ld defence counsels argue that as per prosecution case, these articles were lifted vide recovery memo EXPW5/C by SI N.K. Sharma, the Finger Print Expert from Finger Prints Bureau, PTS Malviya Nagar . Ld defence counsels argue that out of these articles, only one plastic glass was found to have the chance finger print of Jyotish Prasad.
42. Ld defence counsels argue that if the accused persons had checked the bags, they would not have left the jewellery, camera and Traveller cheques in the bag. Moreover, they would have also taken away the jewellery and watch from the dead body.
SC No. 19/04 35 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
43. In view of these circumstances, it is argued by Ld defence counsels that no robbery in the present case has been committed but case of robbery has been shown by the prosecution only with a view to connect the accused persons by falsely planting the case property which they had already recovered from the well.
44. I have considered the submissions of Ld defence counsels. First of all, I will take up the recovery memo EXPW2/D. As per this memo, the bags were recovered from a well situated at a distance of about 150200 metres away from the dead body.
45. The prosecution case is that accused persons kept some property with them but concealed the remaining property at various places with a view to evade detection and with a view that the same are later on collected by them. This is the reason that whereas these bags were thrown in the well, the passport of the deceased was thrown in sewer and some property was concealed in jungle by accused persons. It is pertinent to note that these three bags were lying in the dry well which was 3035 feet deep. This well is situated at the distance of about 150 SC No. 19/04 36 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport 200 metre away from the dead body as per the scaled site plan EXPW10/A prepared by the Draughtsman. The fact that these bags were not lying with the deceased, rather the same were lying in a well at some distance is an indication to the fact that the perpetrator of the offence have committed robbery and thereby concealed these bags in a dry well. It appears that soon after the offence, the offenders might not have considered it appropriate to carry the bags because they had to come back to the IGI Airport with the taxi in question to show that they had dropped the passenger at her destination. Ld defence counsels argue that if the intention was to rob the lady, why the jewellery and the wrist watch was not robbed. To answer this objection, it should be seen as to what jewellery was found on the person of the deceased. As per the memo EXPW2/B, the articles recovered from the body of the deceased were 1 Citizen Watch, 2 two rings, 3 one chutki, 4 one Mala of stone, 5 one ring on which Param Pita Shiv Parmatma was written. As per prosecution case, the accused had taken out the ear rings but found that the same were not of gold and therefore they threw it at the spot.
SC No. 19/04 37 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
When, Investigating Officer reached at the spot, he found the ear rings lying on the ground near the head of the deceased. It is clear that the jewellery and the watch on the person of the deceased were not of much value. Before passing of this Judgment, I again inspected the entire case property today ie on 2.8.2008 and had seen the antique jewellery which was lying in a bag. On seeing it, it is very clear that it cannot be said to be antique and costly. Rather it appears to be quite cheap jewellery available in the market. Therefore, there should not be any surprise that the culprits have not taken away any article from the person of the deceased and the jewellery from the bag.
46. It must not be forgotten that the offence in question took place in an isolated place in jungle where no electricity is available. In the early hours of morning, there must have been darkness. It appears that accused persons were only interested in money which they took away leaving all other articles. This is the reason that no article except the money and Traveller Cheques was recovered at their instance.
47. Ld Defence Counsels argue that prosecution has been unable to SC No. 19/04 38 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport prove that the money and Traveller Cheques etc which were recovered at the instance of accused persons was stolen from the possession of that lady. It is argued by Ld defence counsels that even as per the prosecution case, the bags etc were searched and money was taken out by the accused persons after death of the passenger. It is argued by Ld Defence Counsels that had accused persons taken away the property of Ms Dawn Griggs before her death, it would have been a case of robbery but if they had taken away these articles and money, an offence U/S 404 IPC only is disclosed.
48. I disagree with the submissions of Ld Defence Counsels. Section 390 IPC defines robbery. I reproduce the relevant portion of the definition as under:
When theft is robbery: Theft is ''robbery'' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
49. The emphasized portion of this definition would make it clear SC No. 19/04 39 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport that even if actual theft has not been committed before causing death but if death is caused in order to committing of the theft, still it would amount to robbery. In the present case, circumstances amply show that the death of Ms Dawn Griggs was committed in order to committing of theft of the articles which were later on recovered at their instance. In commission of this robbery, accused persons had voluntarily caused hurt to the unfortunate lady and therefore, I am of the opinion that prosecution has proved beyond reasonable doubt a case U/S 394/34 IPC against both the accused persons.
IS IT A CASE OF RAPE ?
50. Ld defence counsels have drawn my attention to the postmortem report of the deceased EXPW26/A. Ld defence counsels have drawn my attention that PW26 Doctor Sarvesh Tandon has testified in his cross examination that no injuries were found on internal and external genetalia part of the victim. Ld defence counsels have also drawn my attention to the testimony of PW26 in cross examination wherein he testified that in Brief Facts EXPW26/DA, there was no SC No. 19/04 40 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport mention of rape. Ld defence counsels further point out that in cross examination, Doctor Sarvesh Tandon ( PW26) testified that during postmortem there was nothing to suggest that there were internal or external injuries over her private parts. Ld defence counsels argue that although there are numerous injuries on the person of the deceased including abrasion over right buttock and adjoining area of the thigh in the posterior part, however, there is no injury inside or around vagina of the deceased. It is argued by Ld counsels that had it been a case of rape by two persons, the deceased would have got internal and external vaginal injuries. Ld defence counsels have taken me through the disclosure statements and and various memos prepared by the Investigating Officer wherein there is no mention of rape.
51. Ld defence counsels have argued that the story of rape has been introduced later on by the police because the Investigating Officer was under the pressure of two Governments ie the Indian Government and the Australian Government.
52. I am of the opinion that the pressure of government would SC No. 19/04 41 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport never be to falsely implicate any person, though there can be a concern for expeditious investigation. There should be no reason as to why the police would aggravate an offence. I would point out that though investigation in the present case is of very high order but at the same time the Investigating Officer has not been over zealous . He had been very circumspect in his investigation and he took his own time in arresting a man. As per the testimony of PW29, inspector J.L. Meena, although, the name of accused Ashish Kumar had already been disclosed by accused Jyotish in his disclosure statement EXPW27/A, however, accused Ashish was not arrested by Investigating Officer on very first day when he was produced before Investigating Officer. PW29 has testified that on 18.3.04, accused Ashish Kumar was produced by one Kishanpal . He was interrogated but was released with the direction to appear on the next day. He testified that accused Ashish was again called in police station on 19.3.04 and was interrogated again but accused did not disclose his involvement in the crime. Investigating Officer again called him on 20.3.04 but since accused Ashish did not disclose anything and SC No. 19/04 42 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport also denied about the knowledge of the case, Investigating Officer again released him on 20.3.04 with direction to appear on 21.3.04. On 21.3.04, the interrogation of accused Jyotish Prasad was almost complete and accused Jyotish Prasad again informed the police about the involvement of accused Ashish. Accused Jyotish Prasad also disclosed that he ( Ashish) will tell about the screw driver and his share of looted amount. On this, accused Ashish was thoroughly interrogated and he made a disclosure statement EXPW27/J and accordingly he was arrested. The entire conduct of Investigating Officer shows that he did not arrest the accused Ashish unless he was convinced about his involvement. The Investigating Officer was wise enough in not immediately arresting accused Ashish on the simple disclosure statement of accused Jyotish Prasad. It is pertinent to note that offenders are some times likely to make such disclosure statements to the police which might mislead the investigation. Therefore, an adept Investigating Officer would not be led by a simple disclosure of an accused, rather he would apply his investigating skills to check as to whether the disclosure SC No. 19/04 43 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport statements made by accused is convincing or not.
53. Ld defence counsels argue that the conduct of the accused Ashish in not running away is an indicator to his innocence. I disagree with the submissions of Ld defence counsels. The Investigating Officer ( PW29) has testified that he had bound down accused Ashish on an undertaking of one Kishan Pal Singh During evidence this court had seen the police file and found that there were three undertakings of Kishanpal Singh and Pabandinama of accused Ashish. Therefore, it is clear that Investigating Officer had taken sufficient steps to prevent the escape of accused Ashish. But at the same time he did not arrest him unless he deemed it necessary. Therefore, the investigation in the present case is fair and it cannot be said that this Investigating Officer was working under any pressure.
54. I would revert to the question as to whether the rape was committed on the deceased or not. The site plan EXPW10/A would show that the spectacles were found lying at point B which is at a distance of 2.30 metre from the dead body. Empty bottle of the deceased SC No. 19/04 44 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport was lying at point C which is at a distance of 13 metres from point A where dead body was lying. The bag and papers were found lying at point D which is 8.35 metres away from the point where dead body was lying. These distances of the articles would show that the lady (deceased) had put up a good struggle and that is why her articles were found lying scattered up to 13 metres from her dead body. The postmortem report EXPW26/B shows that there were as many as fourteen lacerated wounds, bruises and abrasion all over the body. Injury no. 14 shows grazed abrasion over the back. Injury no. 2 and injury no. 10 show fractures on her person. Injury no. 12 is abrasion over the right buttock and adjoining area of the thigh. Injury No. 13 shows three abrasions over the back of the right knee. All these injury show that this lady had struggled when she was lying on the back. A lady lying on her back on the ground and still struggling corroborates the prosecution case of rape. She is a lady of 60 years of age. PW26 has opined in his postmortem report that her vagina admitted three fingers. In such circumstances, it would be absurd to presume that she would SC No. 19/04 45 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport receive internal and external vaginal injuries.
55. Ld defence counsels have drawn my attention to the photograph of the deceased and submits that had she been subjected to rape, her Payjama and underwear would have been atleast partly taken out, however, the Payjama in the photograph appears to be worn up to a normal place. Ld defence counsels argue that it is very strange that the underwear and the Payjama of the deceased have not received any semen stains.
56. I strongly disagree with the submissions of Ld defence counsels. First of all, the shirt of deceased was quite up and her brazier is visible in the photographs. Secondly, her payjama is also quite low in the photographs of the deceased. This situation of the clothes of the deceased points out towards the possibility of a sexual assault upon her. Ld Additional Public Prosecutor argues that the Payjama of the deceased in worn up position is an indicator that this lady was first raped and thereafter she was murdered. After having been subjected to the rape, it appears that she got some opportunity and pulled up her underwear and SC No. 19/04 46 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport payjama and same should be the natural course for a lady to save her honour. However, that unfortunate lady could not save herself from the death .
57. On the other hand, Ld defence counsels argue that why the underwear and the payjama of this lady is not having semen stains.
58. I am afraid that Ld defence counsels are not arguing as per record. As per the FSL report in which description of the articles received by FSL is given, it is mentioned that EX16a ie payjama of the deceased was having yellowish brown stains. EX16d is the underwear of the deceased. As per report EXPW6/E, there appears to be some typographical mistake. This typographical mistake was noted by PW6 because at point B in EXPW6/E which is the report of Biology Division, EX16b( the shirt of the deceased ) is shown to have blood and semen stains mixed. And at point 'A' in this report EX16d ( the underwear of the deceased ) was shown having blood stains. However, this fact was contradictory to the RESULTS OF ANALYSIS EXPW6/G wherein blood is found to have been detected on EX16b ( ie the shirt of deceased) SC No. 19/04 47 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport and human semen was detected on EX16d ( the underwear of the deceased ). This situation has been explained by PW6 Doctor A.K. Shriwastva who prepared this report. This witness has testified on 20.7.06 as under:
''There is some typographical mistake in EXPW6/E at point A. EX16D ( underwear) should be read EX16B (shirt) and at point B in EXPW6/E, EX16B (shirt) should be read as EX16D (underwear).''
59. It is pertinent to note that this explanation by PW6 has not been controverted by Ld defence counsels. Therefore, if the above stated testimony of PW6 is read with the report EXPW6/E, it would be clear that blood and semen stains marks were found on the payjama EX16a and Underwear EX16d of the deceased.
60. In view of this fact, the only one inference is possible ie this lady after having been raped got some opportunity to pull up her underwear and payjama. I agree with Ld APP that the fact that the underewear and Payjama were up on the person of the deceased clearly proves that first she was raped and thereafter she was murdered.
LAST SEEN EVIDENCE SC No. 19/04 48 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
61. Sh. Vikas Arora, advocate for accused Jyotish Prasad has strongly assailed the last seen evidence of PW15 Head Constable Upendra. It is argued by Ld. Defence Counsels that this witness was on duty from 7:00 pm of 16.3.2004 to 8:00 am of 17.3.2004. As per the testimony of PW4 Vijay Kumar Sharma, the official manning the Prepaid Taxi Booth at IGI Airport has testified that at 2:30 am on 17.3.2004 a foreign lady namely Grigges Dawn reached their counter and asked for taxi for Karol Bagh. This witness filled the voucher and allotted taxi no. DL1T4428 and handed over the original voucher to HC Upendra (PW15) who took this lady to the taxi. Ld. APP has drawn my attention to the testimony of PW15, who has testified that he had taken the foreign lady Grigges Dawn to the taxi. Ld. Defence Counsel has assailed the testimony of this witness who testified that accused Jyotish Prasad was the driver of the said taxi at that time when foreign lady sat in the said taxi. Ld. Defence counsel has drawn my attention to the testimony of PW15, who states that in the cross examination that more than 500/700 foreigners used the services of prepaid taxi in a night in IGI Airport. This SC No. 19/04 49 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport witness also stated in his cross examination that because of volume and rush of passengers it is not possible to remember the faces of the passengers. Ld. Defence Counsel submits that it was the night time and in such situation it was the duty of the Investigating Officer to put the accused to Test Identification Parade affording this witness an opportunity to identify the accused. Ld. Counsel argues that neither this witness has identified accused Jyotish Prasad in a judicial Test Identification Parade nor he had identified the photograph of the deceased lady amongst the numerous photographs. Therefore the last seen evidence is of highly doubtful nature.
62. I have considered the submissions of Ld. Defence Counsel. It is correct that it was night when the lady approached the prepaid. However it must not be forgotten that prepaid booth situated at the Airport is well lit inside as well as from the outside. Therefore the possibility of darkness is not present here. PW15 HC Upendra in his cross examination by Sh. B. S. Chaudhary, advocate had stated that he had taken 45 passengers to the prepaid taxies on that night. In cross SC No. 19/04 50 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport examination by Sh. Vikas Arora, adv. he has clarified that it is not the part of his duty to take the passengers from prepaid booth to the concerned taxi but in case passenger informs that he is unable to trace taxi, then he assist him. In view of this explanation, his testimony that he had taken only 45 persons to the prepaid taxi is worthy of reliance. In such a situation it is not surprising that this witness was able to identify the driver of taxi no. DL1T4428 and its passengers and the photograph of the deceased. It is pertinent to note that he identified the accused and the photographs of the lady when his memory was quite fresh. Therefore in view of the three circumstances that (1) there was sufficient light because it was Airport. (2) PW15 only took 45 passengers to the taxi and (3) he identified Jyotish Prasad and the photograph of the deceased shortly after the incident when his memory was quite fresh, the last seen evidence cannot be discarded only because no judicial Test Identification Parade of the accused or the photographs of the deceased was conducted.
PREPAID VOUCHER SC No. 19/04 51 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
63. As per prosecution case the Investigating officer collected carbon copy of voucher no. 88919 Ex.PW3/B vide seizure memo Ex.PW3/A from PW3 Maheder Pal the Incharge of Prepaid Taxi service IGI Airport. As per prosecution case, the original of the same was handed over to PW15 HC Upendra Singh, who in turn gave it to the passenger. As per the prosecution case this original voucher Ex.PW3/D was recovered from the accused Jyotish Prasad vide memo Ex.PW27/C. Ld. Defence Counsel have argued that not only the voucher has been planted upon accused Jyotish Prasad but also the same has been forged. It is argued by Ld. Defence Counsel that as per prosecution case, this voucher was handed over to Grigges Dawn by HC Upendra (PW15) and therefore it should be in her possession. It is argued by Ld. Defence Counsel that Investigating Officer lifted this voucher from the dead body of the deceased and planted the same upon the accused. Ld. Defence Counsel argues that it is not believable that the accused Jyotish Prasad would pick up the slip/voucher from the possession of the deceased whereas he would be leaving from valuable things at the spot or in the well.
SC No. 19/04 52 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
64. Ld. Defence Counsel has drawn my attention to the carbon copy of the slip as well as the original slip and has argued that the word '' Griggs'' in the carbon copy Ex.PW3/B and the word ''Griggs'' in the original voucher recovered from the possession of accused Jyotish Prasad are in different writings. I have carefully perused both the slips and I am unable to accept the submissions of Ld. Defence Counsel. In fact, a careful perusal of word ''Griggs'' appearing on the original documents and on carbon copy would show that '' Griggs'' on carbon copy of voucher is exact carbon impression of the word '' Griggs'' written on the original voucher.
65. Ld. Defence Counsel argues that carbon copy of Ex.PW3/B does not bear the taxi number, whereas the original voucher Ex.PW3/D bears a no. 4428 in a different hand writing. It is submitted that this number is written in a hand writing which is different from the remaining hand writing on the documents.
66. I have perused both the documents and I find substance in the submissions of Ld. Defence Counsel that the carbon copy of the voucher SC No. 19/04 53 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport does not bear the taxi number whereas the original voucher bears the no. 4428 which is the taxi number. However I disagree that this number was added later on. Had it been a manipulated document, Investigating Officer would have written the full and complete taxi number instead of 4428. It is pertinent to note that full taxi no. Is DL1T4428. It is correct that this number is written in a different hand writing whereas the remaining voucher has been filled in different had but it must not be forgotten that at prepaid booth many persons work. PW3 is the Incharge of this booth whereas PW4 works as a counter helper. Therefore mentioning the taxi number in a different hand should not be viewed seriously. It is pertinent to note that PW4 Vijay Kumar Sharma has testified that he himself had filled the voucher and allotted the taxi number. His testimony that he himself had written the taxi no. remains uncontroverted. It is pertinent to note that taxi no. 4428 is written on the corner of the slip. Ld APP argues that it appears that the booth is not being efficiently run and taxi number is alloted later on. Along with Ex.PW3/B the carbon copy of voucher in question, there are 3 slips also SC No. 19/04 54 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport vide which the taxies were allotted to other persons. But in none of these slips the taxi number is not appearing. Ld APP submits that this leads to only one conclusion that prepaid taxi booth fills up all other particulars but the taxi number is filled up later on after detaching the original voucher. Ld. APP submits that this is done because first the police official searches for a taxi, checks its number and thereafter tells it to prepaid taxi booth employees.
67. Ld APP argues that there may be one more reason that the carbon paper is of short size. I have considered the submissions of Ld APP and the defence counsels. Whatever may be the reason but fact remains that the defence has not confronted PW4 with the original slip and has not asked as to why the taxi number appears on the slip and not on the carbon copy. There is no suggestion to PW4 or Investigating Officer that the taxi no. was added later on during investigation.
68. I have already held that had it been a manipulated document, the Investigating officer would have written the complete taxi number on the slip. In such circumstances, I do not find any substance in the SC No. 19/04 55 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport arguments of Ld Defence Counsels that taxi number was added in the voucher or manipulated.
69. Ld. APP argues that the presence of the original voucher with the driver can be due to two reasons. First, it normally happens that the constable at prepaid taxi booth provides a taxi to the passenger and hands over the original voucher to the taxi driver and such taxi driver after getting the signatures from the passenger on reaching the destination encashes it later on. The second reason could be that Jyotish Prasad picked it himself from the dead body with a view to encash the money because in that situation he would have a proof that he had left the passenger at her destination. I have considered all facts and circumstances. It must not be forgotten that in the present case the accused was looking for a prey to his evil designs and had already thought of a certain plan. He knew that if does not encash the voucher, he would not have any explanation about the whereabouts of the passenger. Therefore presence of this voucher with Jyotish Prasad is not unnatural and it does not appeal to reason that Investigating Officer SC No. 19/04 56 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport would plant it upon him.
RECOVERY OF THE UNDERWEAR OF ACCUSED ASHISH
70. Sh. B. S. Chaudhary, adv. for accused Ashish has argued that the offence was committed on 17.3.2004, whereas the accused Ashish was arrested on 21.3.2004. It is argued by Ld. Defence Counsel that recovery of underwear of accused Ashish is highly doubtful. Ld. Defence Counsel argues that in disclosure statement accused Ashish had stated that he had washed his pant worn by him at the time of offence. Ld. Defence Counsel argues that it would be very natural that he should have not kept his underwear unwashed for so many days. On the other hand Ld. APP has drawn my attention that offence was committed on 17.3.2004 and he was called by police on 18.3.2004. Therefore it is possible that the accused might not have got opportunity to wash the underwear. Ld. APP argues that his disclosure that he had washed his pant may or may not be true. Ld. APP has also drawn my attention to the testimony of PW29 wherein he has stated that accused Ashish was called at 10:00 am and was released at 5:00 pm. Ld. APP further argues that it appears that if SC No. 19/04 57 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport accused Ashish was released at 5:00 pm or so, accused might not have thought of washing his clothes.
71. I have considered the rival submissions. In this context I would point out that both the accused persons belong to a lower strata of society and cannot be expected to know that science has developed to such an extent that it can match the DNA from any part or fluid from the body. Even if it is presumed that accused had washed his underwear while taking bath, it is still possible that some strands of semen are left entangled in the fiber of the underwear. The fact remains that the semen was found in the underwear and this semen on DNA profile was connected to accused Ashish. In such circumstance, there is no doubt left in my mind that the underwear recovered belongs to him. Ld. Defence counsel argues that the simple fact that the semen of accused is available on his underwear does not connect him with the present crime. I am of the opinion that this circumstance cannot be seen in isolation. It is pertinent to note that the vaginal swabs and vaginal slides of the deceased were having human semen and the same were connected to SC No. 19/04 58 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport both the accused persons in DNA matching.
DNA MATCHING
72. Ld. Defence Counsels have strongly assailed the process of DNA matching . It is argued by Ld. Defence Counsels that the blood sample taken by the Investigating Officer during the trial was misused by the expert and he put some of the blood of the accused persons on the said semen stains and this is how the result is procured. Ld. Defence Counsels have drawn my attention to the evidence of Dr. A. K. Srivastava in which he has stated that no request was made by the Investigating Officer to preserve vaginal swabs etc for DNA comparison. Ld. Defence Counsels argue that despite this fact why he has kept those slides for further comparison by DNA profile. Ld. Defence Counsels have drawn my attention to the fact that Investigating Officer did not testify as to what amount of blood of accused persons was taken. It is further argued that even in the report EXPW6/L of PW6, it is nowhere written as to what quantity of blood of the accused persons is available in the containers. Ld. Defence Counsels argue that had the Investigating Officer and Dr. A. SC No. 19/04 59 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport K. Srivastava, noted the quality of blood taken, it would have been clear as to how much blood of the accused persons was taken, how much of it was consumed in the test and how much blood remained. Ld. Defence Counsel argue that all this should be read in conjunction with the testimony of PW26 who has testified that at the time of commission of postmortem there was no case of rape alleged by the Investigating Officer. Ld. Defence Counsels further argue that the Investigating Officer of the case was in a position to influence Dr. A. K. Srivastava to give a desired report. It is submitted that in his cross examination Dr. A. K. Srivastava had admitted that Investigating Officer had been visiting him.
73. I have considered the submissions of Ld. Defence Counsels. I am of the opinion that if Investigating Officer meets the concerned expert, the same does not impeach the impartiality of an expert witness. It is pertinent to note that the brutal killing of foreign lady had shocked the sensitivity of the public. When a woman is killed in isolated place, the possibility of her being raped are always high. Although Dr. Sarvesh Tandon (PW26) had stated that there was nothing to show rape or SC No. 19/04 60 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport sexual assault or that Investigating Officer had not presented it to be a case of rape but he took vaginal swabs and slides because the possibility of her being raped still existed. Similarly if Dr. A. K. Srivastava had saved all these slides etc. for further examination, nothing adverse can be drawn from it. In fact despite a long cross examination of PW26 and PW6 Dr. A. K. Srivastava, Ld. Defence Counsels could not shake their creditability. It would not be out of context to mention that scientists and doctors are not only honourable professions but their status as a witness also stands at a very high pedestal especially when they belong to the independent Institution like Forensic Science Laboratory . It is not the case of prosecution nor that of accused persons that their semen samples were taken by the doctors. Therefore, there is no possibility that semen of accused persons was planted on the clothes of the deceased and on the vaginal swabs/slides. PW26 has testified that he had taken vaginal swabs vaginal slides. These vaginal swabs and slides were found to be having semen of human origin as per FSL report. This scientific evidence is a proof that at the time of offence the deceased was raped, SC No. 19/04 61 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport rather she was gang raped. DNA matching proves beyond doubt that the semen on micro slides , vaginal swab, underwear and Payjama of deceased and underwears of accused persons belong to none other person than both the accused persons.
ARE THE RECOVERIES ADMISSIBLE U/S 27 OF INDIAN EVIDENCE ACT
74. It is argued by Ld defence counsels that all the recoveries were effected from the places which were accessible to the public and therefore the recoveries are not admissible U/S 27 of Indian Evidence Act.
75. I disagree with the submissions of Ld defence counsels. As per PW 29, the screwdriver was recovered when accused Ashish took out the same from the Kichar (silt). Accused also took out a polythene bag from the bushes and it was found to contain currencies of various countries including Australian Dollars. It is clear that it was in exclusive knowledge of accused Ashish that Australian Dollars are lying in a bag in the bushes. Accused Jyotish Prasad also got recovered the Australian Passport and cards from sewer. In fact, police had to do a lot of hard SC No. 19/04 62 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport work in recovering the same. Therefore the presence of these documents inside the sewer was also in exclusive knowledge of accused Jyotish Prasad. Accused also got recovered a Potli which was found to contain 300 Australian Dollars and Traveller Cheques in the name of the deceased. This Potli' was lying in a 1415 feet deep Kachha well. Therefore, this Potli was also well concealed and was in exclusive knowledge of accused Jyotish Prasad. Therefore, all the recoveries in the present case are fully covered U/S 27 of Indian Evidence Act. THE PROVED CIRCUMSTANCES AGAINST THE ACCUSED PERSONS
76. In view of the above discussion and evidence on record, following circumstances stand proved.
1. PW11 Rakesh the owner of taxi no. DL1T02248 has proved that on the fateful night accused Jyotish Prasad was the driver of the said taxi. This testimony is corroborated by PW15 Ct. Upendra who took Griggs Dawn to this taxi. PW15 has testified that accused Jyotish Prasad was the driver of the said taxi. The presence of the finger prints of accused Jyotish Prasad on the taxi and recovery of the voucher issued by prepaid booth in the name of deceased from the possession of SC No. 19/04 63 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport accused Jyotish Prasad leaves me in no doubt that Ms Griggs Dawn had boarded the taxi no. DL1T2248 being driven by accused Jyotish Prasad at 2.30 am on 17.3.2004. Furthermore, the register EXPW3/C recovered by Investigating Officer from the Prepaid Taxi Booth shows the number of the taxi at point A on the night of 16/17 March of the year 2004. In front of it, one number 919 is written. This number 919 should be read as 88919 because it is in continuation of the voucher numbers 88916 etc. This number is the number of the voucher issued by the Prepaid Taxi. Therefore, this register also proves that Ms Dawn Griggs was issued this voucher and was alloted taxi No. DL1T4428.
2. The taxi took away Ms Griggs Dawn at 2:30 am from IGI Airport. Accused Jyotish Prasad has not taken the defence that he had dropped this lady in Karol Bagh which was her destination. The defence of the accused that he was not the driver on the taxi stands falsified in view of evidence discussed above. This is an additional reasons to believe that accused himself had taken the deceased in his taxi inside the jungle where the dead body of Ms Griggs Dawn was found.
3. One finger print(Q7) of Jyotish Prasad was found on a plastic small glass which was placed in the bag found by the police inside the well. Accused Jyotish Prasad does not explain as to SC No. 19/04 64 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport how his finger prints were found on a glass which is lying in the bag of the deceased. The only inference is that accused Jyotish Prasad had searched the said bag before throwing the same in the well.
4. The recovery of hair inside this taxi matched with the hair of the deceased vide report EXPW6/G. The earth which was taken out from the tyres of the taxi matched with the earth which was taken up by the Investigating Officer in the possession from where dead body of the deceased was found. Further more there are Gokharu plants at that place and Gokharu were not only found from the tyres but also the same were found inside the taxi. This shows that this taxi had gone up to the place in jungle where the offence was committed. The presence of hair of the deceased in the taxi points out that the deceased had started resisting assault upon her when she was still inside the taxi.
5. The recovery of Australian dollars at the instance of accused Jyotish Prasad had not been explained by the accused. The deceased was an Australian lady who boarded his taxi on 17.3.2004 and just after a few hours from her death, the accused Jyotish Prasad got recovered Australian Dollars.
6. Recovery of the Traveller Cheques in the name of Ms Griggs Dawn at the instance of accused Jyotish Prasad further SC No. 19/04 65 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport connects the accused with the crime. Recovery of the cover of Australian Passport and the five phone cards recovered from the sewer at the instance of accused Jyotish Prasad and non explanation of this circumstance by him as to how he came to know about their presence in the sewer further corroborates the prosecution version of his involvement in the present crime.
7. The semen stains on the underwear and PAYJAMA of Ms Griggs Dawn and the semen taken by Dr. Sarvesh Tandon on the vaginal swabs and vaginal slides of the deceased are of the same DNA as that of accused Jyotish Prasad. This is a clinching evidence that accused Jyotish Prasad had committed rape upon her. The postmortem report shows the time of death as one and half day before autopsy. As per postmortem report Ex.PW26/A, the time of conclusion of postmortem was 3:00 pm on 18.3.2004. This means the death took place approximately about 3:00 am on 17.3.2008. It is pertinent to note that the place of incident is not far away from IGI Airport. It is clear from the fact that as per the noting on this rukka EXPW29/A, it was dispatched to police station at 1:00 pm on 17.3.2004. The FIR Ex.PW1/C would show that the first information was received in the police station at 1:10 pm on 17.3.2004 i.e. within ten minutes. Therefore it can be presumed that in a motor vehicle, the distance from IGI Airport SC No. 19/04 66 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport up to the spot can be travelled within 10 or 15 minutes. As per the testimony of PW4, this lady reached at the Prepaid counter at 2:30 pm. Therefore even if it is presumed that a taxi started from the airport at 2:45 pm, the same would have reached in the jungle at about 3:00 pm. This is the time around which the death of this lady has taken place. It is pertinent to note that there are two types of injuries on the person of the deceased. The scratches on her back which she might have received due to her struggle to save herself from being raped or from being killed and second the injuries which are responsible for her death. PW26 has testified that all the injuries were anti mortem in nature, fresh and of same duration. This evidence clearly points out to the fact that the rape and the murder were committed almost at the same time. Therefore it can be concluded without any hitch that the persons who committed rape upon her had committed her murder also.
8. The semen on the vaginal swabs/vaginal slides and clothes of the deceased was found matching with the semen on the underwear and DNA profiling of these things matched with the DNA of the blood of accused Ashish. Therefore it proves beyond reasonable doubt that accused Ashish also committed rape upon the lady. I have already stated that the rape and murder have taken place in quick succession. Involvement of SC No. 19/04 67 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport accused Ashish in commission of rape stands proved by scientific evidence. It is for him to explain that he was not involved in commission of the rape and murder of the lady. Non explanation of any circumstance in the present case is an additional reason to believe that accused Ashish was equally responsible for commission of murder of Ms Griggs Dawn.
9. The recovery of 260 Australian dollars just after four days of the offence corroborates the prosecution case against accused Ashish. Accused Ashish does not explain how this money came to him.
10.As per the description of articles in FSL report, the shirt recovered at the instance of accused Ashish was having muddy and darker stains. As per this report Ex.PW6/E this shirt recovered at the instance of accused Ashish was found having human blood of A group which belongs to the deceased. It is pertinent to note that both the accused persons in the present case are of O blood group. Accused Ashish has offered no explanation how the blood of the deceased was present on his shirt. This clinches the whole issue and proves beyond doubt that accused Ashish was also involved in committing murder of Ms Griggs Dawn.
I would note here that for my satisfaction I had called the entire case property and had again inspected the same .
SC No. 19/04 68 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
I directed the Niabcourt to put this shirt on the shoulders of accused Ashish. I found that this shirt fits accused Ashish.
11.A screw driver was recovered at the instance of accused Ashish. As per the testimony of PW26 Dr. Sarvesh Tandon the injury no.2 i.e. on the eye of this lady could have been possible by this PAYCHKAS(i.e the Screwdriver). This court asked a specific question as to how he can say that injury no.2 could be caused by this screw driver. The doctor answered "injury no.2 is typical of a screw driver seeing its size, shape and its depth." The injury was 2.5 cm deep and had fractured the underline bone. The dimension of the injury also matched the screw driver. Therefore this is a strong circumstance which proves the prosecution case that accused had committed murder of Ms Griggs .
12.The DNA profile of the blood of accused Ashish also matches the DNA profile of the semen taken on the vaginal swabs and vaginal slides of the deceased. Further more the DNA of the semen found on the underwear of accused Ashish also matched the DNA of the semen on vaginal swabs and vaginal slides. Accused Ashish has no explanation as to how his semen was found in the vagina of the deceased.
13.Accused Ashish pointed out the place where the offence had taken place vide pointing out memo Ex.PW27/K. He also SC No. 19/04 69 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport pointed out the place where he had thrown the luggage of the deceased. He also pointed out the dry well. He also took the police party to the man hole of the sewer at IGI Airport where he pointed out the place where the cards and the passport of the deceased were thrown. Although these pointing out of the places are not admissible under Section 27 of Indian Evidence Act but the same is admissible in evidence as the conduct of accused under Section 8 of Indian Evidence Act. This conduct of accused further corroborates the prosecution case about the involvement of accused Ashish.
WHAT THE ABOVE STATED CIRCUMSTANCES PROVE
77. The above mentioned proved circumstances lead to only one conclusion that accused Jyotish Prasad had taken Ms Griggs Dawn to the nearby jungle from IGI Airport prepaid booth. Somewhere on the route accused Ashish also joined him. The presence of hair of this lady inside the taxi show that some struggle had started by this lady inside the taxi. This can be on account of two reasons only. Either the accused persons molested her or robbed her of money etc. Thereafter both the accused persons took her near the well. The presence of semen of both the accused persons in the vagina and on the clothes of the deceased proves SC No. 19/04 70 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport that both of them had committed the offence of gang rape upon her. It is pertinent to note that the circumstances of the present case rule out the possibility of her voluntarily having sexual intercourse with the accused persons. The medical evidence has proved that almost at that very time she was throttled. The Investigating Officer had found a piece of cloth inside her mouth and injuries on her neck. The postmortem report shows that the cause of death was on account of asphyxia due to combined effect of throttling and gagging her. Although it is not specific as to which accused took dominant part in committing this murder but it must be remembered that the murder of this lady was not possible by one person. One blood stain of the deceased is available on the shirt of accused Ashish. There is one injury on the eye of the deceased. This matches with the screwdriver recovered at the instance of accused Ashish. Accused Jyotish Prasad had disclosed that this screwdriver was handed over to accused Ashish by him. In view of 1969 (2) Supreme Court Cases 872, the Supreme Court held that such disclosure of name of accused, to whom the case property was given, is admissible under SC No. 19/04 71 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport Section 27 of Indian Evidence Act. Thereafter, this screwdriver was recovered at the instance of accused Ashish. Therefore there is a complete chain connecting the PAICHKAS with the crime in question as well as both the accused persons with this crime. Ld. Defence Counsels have argued that even the possibility of use of some other screwdriver cannot be ruled out. Though prima facie submissions of Ld. Defence Counsels appear to be correct but this circumstance along with the gamut all other circumstances leaves me in no doubt that this screwdriver was used in causing injuries on the eye of the deceased. Therefore recovery of this screwdriver squarely connects both the accused persons with present murder. Both the accused persons have not shown any probability or circumstance to rebut the entire overwhelming evidence against them.
78. Ld. Defence Counsels have argued that the Investigating Officer has acted with a vehemence under the pressure of two Governments and that is why in the anxiety to prove this case, he has manufactured and doctored the evidence. I disagree with Ld. Defence Counsels. It is true SC No. 19/04 72 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport that Australian Government must have been quite anxious for her citizen abroad. It is also true that Government of India must also be concerned for the foreign guests. But this does not mean that Investigating Officer would create false evidence and would falsely implicate the person. In statement under Section 313 CrPC accused persons have taken defence that owner of the taxi has committed the offence but he was let off by the police due to extraneous reasons and instead falsely implicated them. Sh. Vikas Arora, adv. argued that police knew that this offence could not have been done by one person because it required at least two persons to rob, rape and murder her. That is why police falsely implicated two persons. I strongly disagree with the submission of Ld. Defence Counsels and I find their explanation substantially unacceptable. However there is some truth in the submissions of Ld. Defence Counsel that it was not possible to commit this multiple offence by one person. This submission in fact corroborates the prosecution case that the present offence was committed by two persons, who are none other than the present accused persons. The overwhelming evidence against the accused persons rule SC No. 19/04 73 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport out the possibility of the offence having been committed by Rakesh ( PW11) the Taxi owner. Ld defence counsels have drawn my attention to the testimony of PW28 Ajeet Singh Tokas, the member of Crime Team who testified in cross examination that the door of taxi was opened by him with the help of a key which was supplied by Additional SHO. Ld Defence counsels have drawn my attention to the testimony of PW5, the Finger Print Expert that accused Jyotish Prasad were not present with the police when he inspected the taxi. Ld defence counsels argue that the key of the taxi was taken by police from Rakesh ( PW11) and thereafter opened the car but later on planted it upon accused Jyotish Prasad. It is argued that this is how police saved Rakesh, the real offender and falsely implicate accused Jyotish Prasad.
79. I have considered the arguments of Ld defence counsels. In the testimony of PW11, it was nowhere suggested that he had given the key to the police. This key was recovered by the police in jamatalashi of Jyotish Prasad vide memo EXPW27/B. This was not enclosed in pulanda and therefore the same could have been used by the police. No SC No. 19/04 74 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport suggestion has been given to Investigating Officer that this key was taken by him from PW11, Rakesh. In these circumstances , I find no force in the arguments of Ld defence counsels that accused has been falsely implicated and the actual offence was committed by PW11, Rakesh.
80. The accused persons had been charged under Section 404/34 IPC. However since I am convicting accused persons for the offence under Section 394/34 IPC, I am not inclined to specifically convict them under Section 404 IPC.
81. I am not inclined to convict the accused persons under Section 397/34 IPC because it is not clear as to which one of the accused had committed robbery by showing the screwdriver or any deadly weapon.
82. Since there is no specific evidence of conspiracy on record and though prosecution alleges that accused Jyotish Prasad and Ashish conspired to rob and rape this lady, it would be appropriate if instead of applying Section 120B IPC, the liability of the accused persons is drawn under Section 34 IPC. Therefore I am not recording the conviction under Section 120B IPC. However, since the accused persons had thrown the SC No. 19/04 75 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport Passport etc in the sewer and concealed the the case property in the well and at other places, and thereby knowingly caused the evidence of commission of a capital offence, offence U/S 201/34 IPC also stands proved against both the accused persons.
83. All the circumstances proved by the prosecution lead to irresistible conclusion of the guilt of the accused persons under Section 394/302/201/34 IPC as well as under Section 376(2)(g) IPC.
84. I convict both of them accordingly.
Announced in open court on 2.8.08.
(VINOD KUMAR)
Additional Sessions Judge
Patiala House Courts
New Delhi
SC No. 19/04 76 State Vs Jyotish Prasad etc.
Judgement FIR No. 112/04, PS IGI Airport
IN THE COURT OF SH VINOD KUMAR ADDL. SESSIONS JUDGE NEW DELHI SC No. 19/04 FIR No. 112/04 PS IGI Airport State Vs 1 Jyotish Prasad S/o Faturi Shah R/o Vill. Kishan Pur Tola, PS Amar Pur Distt. Banka, Bihar 2 Ashish Kr. Kapri S/o Rajinder Kapri R/o Sobhan Pur, PS Amar Pur, Distt. Banka, Bihar Date of arguments : 4.8.2008 and 5.8.2008 Date of order : 11.8.2008 ORDER ON SENTENCE Present: Ld. APP for the state.
Convict Jyotish Prasad from J.C. with Cl. Sh. Vikas Arora, adv.
Convict Ashish from J.C. with Cl. Sh. B. S. Chaudhary, adv.
1. Ld. Additional Public Prosecutor argues that the victim in the present case was a foreign lady who had come to India in search of spiritual knowledge. Whereas the people had been coming to India from SC No. 19/04 77 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport all distant lands in quest of spirituality for last many centuries, now the India has made a place in international comity and Indian talent is being recognized in the fields of medicine, engineering as well as law. The credibility of India as a nation, however, stands dented with such type of offences. Ld. Additional Public Prosecutor argues that in the present case both the convicts belong to a poor strata of society and despite this fact Ld. Defence Counsels have performed exceedingly well which is worthy of the lawyers having its high standing in the Bar and have defended the convicts very professionally. Ld. APP argues that normally when a lawyer is appointed as Amicus Curie to defend a poor prisoner, such undertrial might have a feeling that had he been a rich person, his private lawyer would have defended him in better manner. Ld. APP further argues that normally the Amicus Curie advocates perform very well because they work with a spirit of service to the society. Still in case of conviction, the poor undertrial may entertain an idea that he is prejudiced because he was poor. Ld. APP argues that in such a situation the court also understands the state of mind of the convicts and therefore while SC No. 19/04 78 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport sentencing him, the court takes a sympathetic view towards such convicts.
2. Ld. APP argues that in the present case, not only both the counsels are privately engaged lawyers but also have excelled in their professional duties. Ld. APP submits that in these circumstances, the court should not have any sympathy with the convicts just because they are poor.
3. Ld. APP further argues that the courts had been taking a view for last so many years that a case based on circumstantial evidence should not end in award of death penalty. It is argued by Ld. APP that now times have changed. Earlier the circumstances pressed by the prosecution used to be based on the ocular testimony of witnesses e.g. last seen evidence, subsequent conduct of the accused, matching dimensions of injury and the weapon of offence etc. Mostly the scientific evidence used to be limited to matching of blood group. However now the science has progressed a lot and DNA testing has resulted in certitude. Ld. APP argues that all the heinous offences like terrorist SC No. 19/04 79 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport activities, rape cum murder etc. are committed in secrecy where no eye witness is available and therefore the most gruesome offences are based upon the circumstantial evidence. Ld. APP further argues that it is a settled law that witnesses may tell lies but circumstances don't. Ld. APP argues that the rule that the death penalty should not be awarded in the cases based on circumstantial evidence requires a relook. Otherwise this situation will result in miscarriage of justice because whereas all the terrorists and the perpetrators of heinous crime would be getting life imprisonment, whereas in the cases of family feuds involving numerous casualties would be getting death penalty.
4. Ld. APP prays that the convicts in the present case have dishonoured the nation as well as they have mutilated the great cultural principle of Indian civilization 'ATITHI DEVO BHAVA" i.e. a guest should be honoured like a God. Ld. APP argues that murder of this foreign lady is a stigma on the face of society, culture and our nation. Ld. APP argues that both the convicts are entitled to death penalty due to following reasons :
SC No. 19/04 80 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
1. It is a cold blooded and premeditated murder.
2. It is a murder of trust. A taxi driver is the custodian of a passenger and he works as his guardian. It is argued that convicts had killed the spirit of this principle.
3. It is a murder of a foreign lady, who can be said to be infirm due to old age.
4. Convicts killed a lady, who came in search of "Lord Shiva" to India but the convicts gave her the treatment of demons. They not only robbed her of her property but robbed her of her honour. They not only committed murder of her body but they committed murder of her soul also by subjecting her to to gang rape.
5. Convicts killed this lady, who was of the age of their mother, to satisfy their uncontrolled greed and lust for sex.
6. This offience has sent a shock wave in Indian society and the feelings of public outcry should be reflected in sentence of death to both the convicts.
7. The convicts have acted in most brutal way by raping an old lady and thereafter committing her murder.
8. The offences against the foreign tourists by the taxi drivers have increased to high proportions and only a death sentence would be a suitable deterrence to the prospective offenders.
5. Ld. Defence Counsels have drawn my attention to following circumstances and pray that the life imprisonment would be suitable to satisfy the consciousness of the society:
1. The court has not been able to determine as to which of the accused played a dominant role in commission of the murder.
2. The Indian law does not differentiate between murder of Indian citizen and a foreign citizen. There is no law that if a person commits murder of a foreign citizen, he would be sentenced to SC No. 19/04 81 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport extreme penalty.
3. No brutality has been committed by the convicts in commission of the murder.
4. It was not a premeditated or cold blooded murder.
5. The subsequent conduct of the convicts in not running away from Delhi and subjecting themselves to Law Enforcing Authorities is a circumstance favouring life imprisonment.
6. There is no previous criminal antecedents of the convicts.
7. Both the convicts belong to a very poor section of the society and death penalty would be a severe punishment not only to them but also to their families.
6. I have considered the rival submissions. The prosecution as well as defence are relying upon the Machhi Singh's and Bachan Singh's cases in their favour. I am of the opinion that in these two cases the Supreme Court has laid down the theoretical exposition of the circumstances which may fall in the category of "rarest of rare cases". With a view to form an objective opinion as to whether the case fell in the rarest of rare cases, the court should make a sincere effort to search the various pronouncements of the Supreme Court and to find out as to what the Supreme Court held in the cases where the facts and circumstances were similar. I have tried to search all the cases in which the question of death sentence or life imprisonment was before the Supreme Court. It is a well SC No. 19/04 82 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport recognized dictum that the facts of no two cases are similar and each case had its own peculiar facts and circumstances. However still, in order to look for precedence, the courts had been making an effort to compare the facts of two cases.
7. In an exercise to trace a judicial pronouncement by the Supreme Court in which the facts are similar to the case in hand, I have found only one case facts of which are nearest to this case. I refer to 1995 AIR SCW 510 "Dhananjoy Chatterjee V. State of West Bengal". In this case, a security guard in residential apartments was convicted under Section 376/302 IPC for raping and committing murder of a young girl of 18 years old. He was also convicted under Section 380 IPC for committing theft of a watch belonging to the mother of the deceased.
8. Perusal of the judgement would show that the victim had been killed by strangulation. At the time of commission of offence the victim had offered resistance. Para 6 of this judgement shows that there was no eye witness to this occurrence and entire case resisted on circumstantial evidence. Further more the presence of blood stains and marks of SC No. 19/04 83 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport violence of the face of deceased indicates that the victim had offered resistance but was helpless.
9. The facts of the case in hand are curiously very similar to the Dhananjoy Chatterjee's case. Here also the victim died due to throttling. There are marks of violence on the face of the deceased i.e. injury on her eye and other parts of her body. Here the accused persons are taxi drivers and their status is equivalent to security guards because duty of a taxi driver is to take a passenger to her destination safely.
10. However the distinguish point in these two cases is the age of victim. In Dhananjoy Chatterjee's case the victim was of 18 years old, whereas the present case the deceased is about 60 years of age.
11. If the facts of the present case are seen closely, it would be found that the gravity of the present case is more than the case before the Supreme Court. In Dhananjoy Chattrejee's case, accused committed theft of only one watch that, too, belonging to the mother of the deceased. Whereas in the present case both the convicts had committed robbery SC No. 19/04 84 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport and had robbed the entire belongings of the victim. It is pertinent to note that Dhananjoy Chatterjee was convicted under Section 380 IPC punishable with maximum sentence of seven years, whereas both the convicts herein are guilty of an offence under Section 394 IPC punishable upto life imprisonment.
12. In Dhananjoy Chatterjee's case the victim was of 18 years of age and it cannot be said that the said victim was a minor. Perusal of the said case would show that it was a crime of passion. However in our case the victim was of such an age that she should have been seen by the victims as a motherly figure. Committing rape of an old lady shows a mind which is more depraved than Dhananjoy Chatterjee's. Moreover if the elderly persons are not safe from the sexual assaults, how can young women have a feel of security in the very capital of India. Further more in Dhananjoy Chatterjee's case it was a rape by one person, whereas in this case the old victim has been gang raped by both the convicts. Therefore inDhananjoy Chatterjee's case the offender was convicted for commission of simple rape, whereas in the present case both convicts are SC No. 19/04 85 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport guilty of more serious offence punishable under Section 376(g) IPC.
13. Whereas Dhananjoy Chatterjee killed the victim by strangulating her and did not use any weapon, however in the present case the circumstances are more grave. In the present case the convicts inserted a piece of cloth in the mouth of the victim and gagged her so that she is unable to shout. The medical evidence shows that the victim died due to throttling and gagging, however the convicts also used a screw driver and caused grievous injury on the eye of the decease. Therefore the murder by the convicts is more brutal than the murder committed by Dhananjoy Chatterjee.
14. Cumulatively taken the facts of the present case are definitely much more grave than the Dhanajoy Chatterjee's case. It must not be forgotten that the victim in the present case was a foreigner lady, who was totally dependent upon the hospitality provided to her by our people. She was totally defenceless and unprotected. Convicts were in a position of dominance over her while she was sitting in the taxi. There is an element of breach of trust reposed on a taxi driver and breach of his SC No. 19/04 86 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport obligation towards a foreigner guest arriving in India.
15. All these circumstances to my mind make it out a rarest of rare case being much more grave than Dhananjoy Chatterjee's case referred above. I would likely to reproduce the relevant passages from this judgement which very appropriately apply to the facts of the present case.
16. I reproduce the relevant portion of 1995 AIR SCW 510 "Dhananjoy Chatterjee V. State of West Bengal" :
"13 We have given our anxious consideration to the question of sentence, keeping in view the changed legislative policy which is patent from Section 354(3), Cr.P.C. We have also considered the observations of this Court in Bachan Singh's case 1980 Cri LJ 636 : (AIR 1980 SC 898).
14. In recent years, the rising crime rate - particularly violent crime against women has made the criminal sentencing by the Courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different SC No. 19/04 87 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it in imposing sentences, in the absence of specific legislation. Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice SC No. 19/04 88 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The Courts must not only keeping in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. @pageSCW526
16. The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartments, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenceless schoolgoing girl of 18 years. If the security guards behave in this manner, who will guard the guards? The faith of the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear, the offence was not only inhuman and barbaric SC No. 19/04 89 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport but it was a totally ruthless crime of rape followed by, cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case. We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder without any provocation after committing rape on an innocent and defenceless young girl of 18 years by the security guard certainly makes this case a "rare of the rarest" cases which calls for no punishment other than the capital punishment and we accordingly confirm the sentenced death imposed upon the appellant for the offence under Section 302, I.P.C. are also confirmed along with the directions relating thereto as in the event of the execution of the appellant, those sentences would only remain of academic interest. This appeal fails and is hereby dismissed.
17. The Supreme Court found the case of Dhananjoy Chatterjee's SC No. 19/04 90 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport case to be a fit case for award of death penalty. The present case, to my mind is a fitter one.
18. In the present case it is pertinent to note that it cannot be said that there was no premeditation. Although the target of the convicts was not a fixed person but they were having an eye on some defenceless tourist. A foreign tourist specially a lady is the easiest prey. As per the evidence on record, when the victim hired the taxi in question, only convict Jyotish Prasad was sitting in the car as a driver. Convict Ashish joined him soon thereafter in very early hours of the day shows that both the convicts had some prior planning for commission of offence.
Therefore I do not find any substance of Ld. Defence Counsels that it was not a premeditated murder.
19. All the aggravating circumstances which were present in the Dhananjoy Chaterjee's case are also seen in the present case as discussed above. The only mitigating factors in favour of the convicts is their poverty. However this mitigating circumstance was also present in Dhananjoy Chatterjee's case, who was only a security guard. But SC No. 19/04 91 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport Supreme Court did not give any weightage to this circumstance. In the present case the aggravating circumstances are so overwhelming that imposition of life imprisonment upon the convict would be wholly inadequate.
20. Ld. Defence Counsels have referred to a few authorities in which Supreme Court held that death penalty should not be awarded in the cases based on circumstantial evidence. However Dhananjoy Chatterjee's case was also based on circumstantial evidence and death penalty was awarded. To my mind, while considering the question of death penalty, the court is to see the degree of accuracy in evidence. In the present case there is a very high degree of certitude and therefore I am unable to restrain myself from awarding maximum punishment in this case.
21. In order to put the record straight, it is made clear that Sh. Vikas Arora, adv. was appearing for Jyotish Prasad as a private counsel. He had also filed a Vakalatnama which is on record. The order sheet dated 30.7.2004 shows that my Ld. Predecessor appointed Sh. Vikas Arora, adv.
as Amicus Curie to defend accused Ashish. However Sh. B. S. SC No. 19/04 92 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport
Chaudhary, adv. filed Vakalatnama on behalf of accused Ashish later on and Sh. B. S. Chaudhary, adv. is representing accused Ashish as a private counsel since start of the present trial.
22. Considering all facts and circumstances I sentence both the convicts to rigorous imprisonment for ten years and a fine in the sum of Rs.1000/ each under Section 394 IPC. In default of payment of fine they shall undergo simple imprisonment for one month each.
23. I further sentence both the convicts to rigorous imprisonment for seven years and a fine in the sum of Rs.1000/ each under Section 201 IPC. In default of payment of fine they shall undergo simple imprisonment for one month.
24. I further sentence both the convicts to imprisonment for life and a fine in the sum of Rs.1000/ under Section 376(g) IPC. In default of payment of fine they shall undergo simple imprisonment for one month each.
25. I award death sentence to both the convicts under Section 302 IPC. Both the convicts be hanged till death. However this sentence be SC No. 19/04 93 State Vs Jyotish Prasad etc. Judgement FIR No. 112/04, PS IGI Airport not executed till confirmation by High Court of Delhi. Sentence warrants be prepared. The present judgement along with entire trial court record is being sent to High Court of Delhi for confirmation.
Announced in the open court on 11.8.2008.
(VINOD KUMAR) Additional Session Judge Patial House Courts New Delhi