State (Delhi Administration) vs Panna Lal @ Panditji @ Baba @ Sardar
1992 Latest Caselaw 626 Del

JUDGMENT

Anil Dev Singh, J.

(1) Monstrous acts of kidnapping, rape and murder of innocent .child Nitu, who was barely 2 years old, have been attributed by the prosecution to the accused.

(2) Believing the prosecution story the learned Additional Sessions Judge by his judgment and order dated February 7,1992 convicted the accused under Section 302 Ipc and awarded death sentence to him for committing the murder of the said child and has made this reference for confirmation of the same. He has also convicted the accused of kidnapping and raping Nitu and sentenced him to suffer life imprisonment under Section 376, two years rigorous imprisonment under Section 363 Indian Penal Code and five years rigorous imprisonment under section 366 Indian Penal Code Besides the accused was sentenced to pay a fine of Rs.200.00 each under Sections 376 and 366 Ipc, in default whereof to suffer R.I for further periods of one year on each count.

(3) The accused has filed an application (Cr.M. No.87 of 1992) under Section 482 Criminal Procedure Code . wherein it has been prayed that the application may be treated as an appeal against the judgment of the learned Sessions Judge. Learned counsel appearing for the accused reiterated the prayer made in this . application. In the interest of justice, this application is treated as an appeal. Both the appeal and the reference are being disposed of by this judgment.

(4) The case of the Prosecution in short is as under:

(5) The accused, who was called Sardar, Baba and Pandit, used to visit the tent of Shallu, mother of Nitu in Majnu Ka Tilla, for taking Chhang. On December 28,1986 at about 7.30 P.M he kidnapped the deceased and raped and murdered her the same day around 8 P.M. Her body was found the next day i.e. December 29,1986 at about 10.30 A.M. in the Jamuna sand field near Sai Baba Mandir, Majnu Ka Tilla. About 40 to 50 yards from the body a chappal (Ex.P.2) belonging to the accused was found.

(6) On the date of kidnapping, viz December 28, 1986 at about 9.15 P.M. itself a report was lodged by Smt. Shallu with police station (for short "P.S.") Civil Lines, Delhi at about 9.15 -P.M. to the effect that her daughter aged two years was missing since 7.30 P.M. from tent No.3 Chhangpura, Majnu Ka Tilla,Delhi. This report was registered as D.D.No.19A (Ex.PW-2/D). On 29th December,1986 at about 10.35 A.M. Dr.Jagdish Chandra, a Bims practicing at Chhangpura, Majnu Ka Tilla, informed the police control room on telephone that Nitu aged two years about whom a missing report dated December 28,1986 was lodged with P.S. Civil Lines has been found dead in front of " Sai Baba Temple near Majnu Ka Tilla". This report was transmitted by P.C.R. to P.S Civil Lines and the same was registered by the latter a., DD.No.6A dated December 29,1986. On receipt of this information Si Ram Singh of P.S Civil Lines accompanied by constable Rattan Lal reached the spot where the dead body of Nitu was lying. At the site Si Ram Singh recorded the Fir as given by Shallu. According to the report Shallu suspected "a Sardar" who used to frequent her tent for consuming Chhung but on the fateful day he did not consume Chhung and instead asked for tea. The Fir was sent by Si Ram Singh to the P.S. Civil Lines for purposes of registration of the same. The police thereupon registered the case under Sections 363, 366,376 and 302 Indian Penal Code From the site of the incident a black chappal of left foot (EX.PW 2) was recovered. A pubic hair was lifted from the thigh of the deceased Nitu, besides her sweater and Pyjami(Pyjamas) were seized from the spot and samples of blood stained sand were also lifted. The dead body of Nitu was sent for postmortem and the same was conducted by Dr.L.T.Ramani of Civil Hospital on the same day at 4 P.M.

(7) The doctor while noticing the injuries on her body observed as follows; "EXTERNAL Injuries 1. Extensive bruising over both inner aspects of thighs/groins, reddish in colour. 2. Laceration on the inner aspect of labia majora skin deep .on the left side 1" x1/4" and muscle deep on the right labial fold of 1-1/4" x 1/2" size. These lacerations extended up to anal orifice vertically in midline. Vagina could admit two fingers owing to continuity between vaginal orifice and anal orifice through intervening laceration. 3. There is another laceration 1/2" long skin Jeep at 9 0' clock position in the vaginal wall. Clotted blood was present over genetalia. No evidence of semen deposit or foreign material was seen. Vaginal swab was preserved.

(8) The doctor was of the opinion that the child was sexually assaulted and death was caused due to suffocation. Doctor placed the time of death as 20.00 hrs before the post mortem i.e. about 8 P.M. on December 28,1986.

(9) The accused, who was arrested on January 9, 1987, was examined by Dr.K.L.Sharma, Chief Medical Officer, Ram Manohar Lohia Hospital. The examination of the accused revealed partially healed linear abrasion in an area of 2 cm over corona and partially healed scab over fermium. The injuries were opined to be 10 to 12 days old. The prosecution also alleges that after his arrest, the accused made a disclosure statement pursuant to which the other chappal Ex.P.3 forming pair with Ex.P.2 was recovered from the drain behind Sai Baba Temple. On completion of the investigation the accused was arraigned under Sections 302,376, 366 and 363 Indian Penal Code The trial of the accused led to his conviction and sentence by the learned Additional Sessions Judge as stated above.

(10) The prosecution case is based purely on circumstantial evidence. In a case resting on circumstantial evidence chain of circumstances must be proved completely. If the facts that form a chain of circumstances inescapably point to the guilt of the accused only then he can be convicted and not otherwise. The tests to be applied for determining whether circumstantial evidence should lead to the conviction of the accused have been authoritatively laid down in various judgments of the Supreme Court. These tests are:- 1.The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. 3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

(11) If any authority is required for the proposition the same can be found in the following decisions of the Supreme Court:-    1.GAMBHIRVs. State of Maharashtra . Prem Thakur Vs. State of Punjab . Gian Singh Vs. State of Punjab . Padala Veera Reddy Vs. State of Andhra Pradesh and others, .`D.Soni VS. State of Gujarat .   

(12) The trial court has held that circumstantial evidence undisputably points to the guilt of the accused. Now the question to be examined is whether the trial court was right in its conclusion.  

(13) While assailing the conclusion reached by the learned Additional Sessions Judge, learned counsel Ms. Neelam Grover appearing for the the accused challenged his conviction and submitted that the accused has been wrongly implicated in the case and the circumstantial evidence is not incompatible with his innocence. She submitted that the chain 'of circumstantial evidence is not complete and does not lead to. the irresistible conclusion that it was the accused who committed the crime.

(14) According to the learned counsel the evidence relating to the fact that the deceased was last seen in the company of the accused is extremely fragile, untrustworthy and cannot be relied upon.

(15) In so far as the medical evidence is concerned, her criticism was that it would be highly speculative to hold that the injuries on the penis of the accused are the result of penetration in an infantile vagina and Dr. K.L. Sharma therefore was not right in his opinion.

(16) In so far as the recovery of chappals were concerned, learned counsel submitted that no accused will leave such an incriminating piece of evidence at the site. According to her, chappal was planted near the body of the deceased. In any event she submitted that even if the recovery of the chappal of the accused was to be believed it cannot lead to. the inference that it was the accused who raped and murdered Nitu. Learned counsel however did not dispute the factum of rape of the child though she disputes the commission of the same by the accused.

(17) On the other hand learned counsel for the State Mr.P.S.Sharma submitted that all the circumstances conjointly point towards the guilt of the accused and the chain of circumstances is so complete that it is incompatible with his innocence.

(18) We have considered the respective submissions of the learned counsel for the parties and have gone through the record of the case. At this stage it will be relevant to refer to the testimonies of Smt.Shallu, Public Witness 2, mother of the deceased, witnesses who had last seen the deceased with the accused, namely, Ms. Mehto and Dr. Jagdish Chander and doctors, namely, Dr. L.T.Ramani and Dr.K.L.Sharma.

(19) According to Shallu, she lodged report of disappearance of her daughter, Nitu on. December 28,1986 with the police. Till the lodging of the report P.3 (DD No. EX.P.W 2/D) she had no information that the accused had kidnapped the child as no body had told her by then that Nitu was seen in the company of the accused on the fateful evening. According to her the accused had started visiting her tent three years before the incident. But after the incident he had stopped coming. She also deposed to the fact that She had seen the chappals Ex.P.2 and P.3, which the accused used to wear. She categorically stated that chappal Ex.P.2 and P.3 belonged to the accused. She further stated that residents of the nearby tents knew her daughter and they could recognise her. On the day of the incident she did not enquire from Mehto about the disappearance of her daughter although she searched her and enquired about her from many residents of nearby tents. According to her, Mehto resided in a tent which was at some distance from her tent. Since nobody on December 28,1986 told her about the accused having kidnapped her daughter hence she did not cast her suspicion on him in her reportEx.PW2/D.It is further in her evidence that till about 8.10 AM. next day nobody told her that her daughter had been decoyed by the accused or someone else. She also stated that the accused used to give toffees to her daughter and used to show affection. On the day in question also he visited the tent but did not consume Chhang. She has gone on to state that he had come in the evening just before the closure of the shop and took tea. He also gave toffees to Nitu. The closure time of the shop according to the witness was 7.30 P.M.

(20) Pw 4 Mehto who lived in the same area stated that she knew the daughter of Shallu. She also knew the accused who also used to visit her tent for consuming Chhang. According to her a day earlier to the recovery of the dead body of the deceased, the accused had brought Nitu in his lap and purchased some toffees from her khokha She did not come to know on the night of the incident that Shallu's daughter was missing. She came to know only the next morning.

(21) At this stage it is significant to note that she made a statement under Section 161 Criminal Procedure Code . to the police on December 29,1986 itself that is on the date when the dead body was recovered.

(22) DR.JAGDISH Chander, Public Witness Ii who practiced as B.I.M.S. doctor at Majnu Ka Tilla, stated that on the day of the incident at about 7 Pm he had seen the accused carrying the deceased in his lap. On December 29, 1986 at about 10 Am one tall Tibetan came to him and told him that Shallu's daughter, who was missing, was lying dead in Yammuna sand behind Sai Baba Mandir at Majnu Ka Tilla. Thereupon he telephoned the police and after arrival of the police he accompanied them to Yamuna bank behind Sai Baba Mandir and found Nitu lying dead. The witness, who is also a witness to recoveries and seizure memos., stated that a pubic hair 1-1/2" long was lifted from left thigh of the child and was sealed in a foil. A chhapal of left foot Ex.P.2 was lying at a distance of about 40-50 paces from the dead body, buried in the sand, which was also seized and sealed by the police. On January 9,1987 in his presence the accused led the police party to the drain ( Ganda Nala) behind Tibetan tents and got recovered another chappal (EX.P.3)of right foot after taking it out from the mud of the Nala. According to him he had told Shallu that he had seen the accused carrying the child in his lap.

(23) DR.K.L.SHARMA(PW 13) who examined the ac-cused on January 9,1987 stated that the accused was having injuries on his private part and there was partially healed linear abrasion in an area of 2 Cm. over corona and partially healed scab over fermium about 0.5 cm. in length. According to his examination there was nothing to suggest that the accused was incapable of performing sexual intereourse. The time of the injuries over glans penis and fermium was 10 or 12 days old. He further opined that the injuries sustained by the accused were decidedly the result of forcible sexual intercourse with an infantile vagina.

(24) Dr. L.T. Ramani, Public Witness 5, who performed the post mortem upon the deceased on December 29,1986 at 4 Pm, opined that the injuries over her genitalia were ante mortem and were caused due to sexual assault on her. Death of the child, according to him, was due to suffocation consequent upon chocking of respiratory passage with sand. The doctor was recalled and in his further examination he reiterated that though the immediate cause of death was suffocation consequent upon choking of respiratory passage with sand, even otherwise with such extensive injury to the genitalia of the child death Would have necessarily resulted. He further opined that in the case of a child the vagina is very small and hymen is deeply situated making male genital organ almost impossible to penetrate into the genital track but in rare cases of brutal sexual assault, as in the instant case, the forcible penetration of the male organ leads to gross damage to the tissues of posterior vaginal wall and fermium extending to anal orifice and in such extensive damage, there would be profuse bleeding resulting in death.

(25) In his statement under Section 313 the accused has denied the commission of offence by him. He has also denied the recovery of chappals. However, he has admitted that chappal Exs.P.2 and P.3 belong to him. In this regard the following question was put to him : Q.1"It is further in evidence against you that chappals Ex.P.2 and P.3 belong to you what have you to say? Ans.' It is correct."

(26) From the testimony of Mehto (Public Witness 4) it clearly emerges that the deceased was last seen in the lap of the accused. Mehto has categorically stated that the accused brought the child in his lap and purchased some toffees from her shop on the previous evening of the incident. She did not mention this fact to Shallu on the fateful night as she was not aware of the disappearance of the child. The accused was known in the area and there was no reason for Mehto to get suspicious on seeing the deceased in the lap of the accused that evening. It is also in evidence that the accused used to provide toffees to children including Nitu and his conduct in carrying the child must have appeared normal to Mehto and therefore did not arouse any suspicion in her mind. The only criticism levelled by Ms.Grover against the statement of Mehto was that she failed to dispose the fact of accused carrying the child on the evening of incident to Shallu. According to the learned counsel it was not possible that Mehto did not come to know about the kidnapping of the child as Shallu was searching the child in the area that evening. We are not impressed by this argument of the learned counsel. Mehto in her cross - examination has denied the suggestion that she had come to know of the kidnapping of the child on the night of the incident.

(27) Learned counsel for the accused pointed out that Dr.Jagdish Chander stated that he had seen Nitu with the accused on the fateful evening and had told Shallu about the same by vesting her tent around 10 P.M. but Shallu denies any such visit or information from Dr.Jagdish Chander. It is contended by the learned counsel that his statement does not match with the testimony of Shallu.

(28) We have gone through the Hindi version of the statement of the witness. What has come is that he told Shallu that he had seen the accused playing with her daughter. Then he goes on to say that he had not seen the police in Shallu's tent at 10 P.M. He also stated that he visited the tent of Shallu. Statement of the witness recorded in Hindi does not suggest that Dr.Jagdish Chander had told Shallu on that very night before she had lodged the missing report with the police about the accused carrying the child. Since at the time of lodging of the missing report (EX.PW 2/D) Shallu was not aware that the accused had kidnapped the child, there was no occasion for her to cast her suspicion on the accused. In any event learned counsel for the accused cannot make much of the said discrepancy, as pointed out by her, as Mehto had also seen accused with the child in the company of the accused. As already pointed out, we are inclined to accept the testimony of Mehto who is a disinterested witness. Whether Dr.Jagdish Chander informed Shallu at 10 P.M. the same night or on the next day about the fact of the accused carrying the child would not make much difference.

(29) In the light of the foregoing evidence we hold that the deceased was last seen in the lap of the ac-cused on the evening of December 28,1986.

(30) In so far as the question of rape of the child is concerned, the same has been cogently established. The medical evidence on record to which reference has already been made corroborates and supports the prosecution story that the child was sexually assaulted and raped. Learned counsel foe the accused has not disputed the fact that the child was raped. Therefore this aspect of the matter may not detain us any further.

(31) There is no dispute that Chappal Ex.P.2 belongs to the accused. The accused has admitted this fact in his statement. According to Shallu (Public Witness 2), Dr.Jagdish Chander (Public Witness 11), Si Ram Singh (Public Witness 17), and Mangal Dass (Public Witness 7) the said chappal was found lying near the place of the incident. According to the witnesses, namely Ram Singh and Dr.Jagdish Chander the other chappal (Ex.P 3) was discovered from the drain pursuant to the disclosure statement of the accused. Chappal (Ex.P.3) has also been admitted by the accused to belong to him. This incriminating piece of evidence is also a firm link in the chain of the circumstantial evidence against the accused. There is no reason to believe that the chappal (EX P 2) was planted at the site by the police.

(32) The other vital piece of circumstantial evidence is the injuries which were found on the penis of the accused. Dr.K.L. Sharma stated that the accused was capable of performing sexual intercourse and the injuries over his glans penis and fermium were between 10 or 12 days old. The accused was arrested on January 9,1987 and was examined on the same day by Dr. K.L.Sharma. The duration of the injuries coincides with the date of the sexual as suit on the deceased. According to the doctor the injury sustained by the accused was decidedly as a result of forcible sexual intercourse with an infantile vagina. This opinion of the doctor has not been challenged in cross-examination. The injury on the accused is indicative of disparity in size between the penis and hymnal orifice. Penetration into a very tight hymnal orifice may produce injury to the foreskin, fermium or glans penis. The existence of injury on the person of the accused lends credence to the prosecution story and is a strong piece of circumstantial evidence which militates against innocence of the accused. The accused has failed to explain the injuries in his statement even though, a specific question was put to him regarding the existence of the said injuries.

(33) It is also noteworthy that the accused after the incident did not visit the tent of Shallu even though previously he was a regular visitor thereto.

(34) From the scanning of the evidence, the following circumstances appear to have been established and they point to the guilt of the accused. 1.The deceased was last seen in the lap of the accused around 7.30 P.M. on December 28,1986 where after she was not seen alive and only her dead body was found on December 29,1986 which bore the marks of sexual assault. 2. It is clear from the post mortem report that the victim lost her life around 8 P.M. on December 28,1986 almost immediately after the accused was seen with her. 3. A black chappal of left foot belonging to the accused was found near the body of the deceased. 4. The other chappal forming a pair with the chappal found at the site of the incident was recovered from a drain (Gandnala) pursuant to the disclosure statement made by the accused. . 5. The accused when arrested on January 9.1987 was found to have injuries over corona and fermium and according to doctor K.L. Sharma, Chief Medical Officer of Ram Manohar Lohia Hospital they were 10 to 12 days old, decidedly caused as a result of forcible sexual intercourse with an infantile vagina. The time of the said injuries coincides with the date of the incident: 6. The accused after the incident stopped visiting the tent of Shallu though previously he was frequently visiting the same.

(35) In our view these circumstances have been fully established and the chain of evidence furnished by them is so complete as does not leave any reasonable doubt for the conclusion that the accused is guilty of kidnapping and rape. The evidence proved by the prosecution is not inconsistent with his guilt and does not militate against the hypothesis of his innocence. Though the object of lust of the accused remained muted as she was snatched from life but the circumstantial evidence has spoken volumes against him of his diabolical act. It is nauseating to find that the child of two years has been a victim of lust and passion of a pervert. Chilling crime of rape of hapless child deserves maximum punishment prescribed by law. In our opinion therefore, the learned Additional Sessions Judge was entirely right in imposing life imprisonment Along with fine ofRs.200.00 on the accused in respect of offence under Section 376 Indian Penal Code Accordingly we maintain the conviction and sentence of the accused under Section 376 Indian Penal Code passed by the Additional Sessions Judge by his judgment and order dated February 7,1992. We also uphold the convictions and sentences passed against the accused under Sections 366 and 363 IPC.

(36) In so far as the conviction and sentence of the accused under Section 302 Indian Penal Code is concerned we are of the opinion that it is not a case in which the accused can be convicted for the murder of the deceased. According to the statement of Dr.L.T.Ramani the immediate cause of death of the child Nitu was suffocation. Since the henious crime was committed in sand field the child must have inhaled sand resulting in blockage of respiratory passage. This hypothesis tallies with the medical evidence.

(37) It is not established that death of Nitu was caused due to profuse bleeding from the injuries consequent upon rape. It is difficult to hold that if the child had not died of suffocation, she would have certainly died of bleeding. This finding would be in the realm of speculation and we cannot accept the submission of the learned counsel for the State that Nitu in any case would have died because of the- injury caused to her due to rape. Nevertheless it is correct that the injuries were of such a serious nature that if the child had not died of suffocation, she was likely to die of bleeding. Though the accused cannot be attributed with the intention to cause murder yet he can be-imputed with knowledge that the injuries caused by his devilish act were likely to cause death. Therefore it appears appropriate to convict him under Section 304 Part Ii Indian Penal Code instead of Section 302 1PC. Accordingly the conviction of the accused is altered from one under Section 302 Indian Penal Code to Section 304 Part Ii Indian Penal Code and sentenced to undergo ten years rigorous imprisonment, which will run concurrently with the sentences awarded to the accused on other counts.

(38) In the result the appeal succeeds and is allowed in part to the extent indicated above and Murder Reference is rejected.

(39) Before parting with the judgment, we must observe that Ms. Neelam Grover, who appeared as amices Curiae in the matter, argued the case with great ability and clarity. We record our appreciation for the work done by her.

(40) A copy of this judgment be sent to the accused.