State Vs. Naresh Kumar @ Chuttan vs Naresh Kumar @ Chuttan Vs. State
1999 Latest Caselaw 994 Del

ORDER

R.S. Sodhi, J.

1. By Criminal Appeal No. 505 of 1998, Naresh Kumar, appellant, seeks to challenge the judgment and order of the learned Additional Sessions Judge in Session Case No. 11 of 1996, arising out of FIR No. 320/94, Police Station, Seelampur, under Sections 363/376/302/201 IPC dated 30th October, 1998, whereby the learned Judge has held the appellant guilty for the commission of offences under Sections 363, 376 and 302 IPC and, consequently, order dated 2nd November 1998, whereby further sentence the appellant as follows:

    "1.  The  convict is therefore sentenced to death by  hanging  by      the neck till dead and also to pay a fine of Rs. 10,000/- I/D  to      suffer R. I. for nine months under Section 302 I.P.C. 
     

 2.   Accused/convict also sentenced to R. I. for five years and a      fine  of  Rs.  5,000/- I/D four months R. I.  under  Section  363 
     I.P.C. 
 

     3.   The  accused/convict  is further sentenced to R.I.  for  ten      years and fine of Rs. 5,000/- I/D four months R. I. under Section      376 I.P.C. 
 

     Substantial sentences shall run concurrently and the sentences in      default  shall run one after the other after the expiry  of  substantial sentences."  
 

2.   Murder  Reference 5 of 1998 is for confirmation of sentence  of  death awarded  by  the learned additional Sessions Judge by his  order  dated  2nd November, 1998. 
 

3.   We  propose  to  dispose off the Criminal Appeal as  also  the  Murder Reference by this judgment. 
 

4. The case put up by the prosecution briefly is that on 16th May, 1995, Savita, aged about 6 years, daughter of Cheddi Lal, went to visit her uncle, Kamlesh Chand Gupta, residing at A-106, Shastri Park, accompanied by her grand-mother. Savita is stated to have gone to play with some neighbourhood children and at about 6.30 p.m. could not be traced. Kamlesh Chand Gupta and other members of the family went out in search of her. At about 9.30 P.M. on 16th May, 1995, Kamlesh Chand Gupta made a missing persons report in the police post, Shastri Park, which was recorded in Daily Diary at Entry No. 20.

5. Savita could not be located throughout the night of 16th May, 1995. Consequently, on 17th May, 1995, a case under section 363 IPC was registered on the basis of the Daily Diary Entry No. 20.

6. At around 11.30 a.m. on 17th May, 1995, an information was received through Police Control Room that a body of a female child was lying in the DDA shopping complex, Shastri Park. The Police as also Kamlesh Chand Gupta and Cheddi Lal reached the shopping complex whereupon they found the body to be that of Savita, lying in the urinals. A look at the body indicated that a jute rope was tied around her neck, while the other end was tied to a pipe outside the grill. A piece of cloth was found vaging her mouth and blood was seen oozing from the nose and vagina. A small broken bangle, some burnt match sticks, one kisan bidi wrapper, one silver wrapper (panni) and one silver paper rolled as a pipe were also found near the body.

7. The body, as also the articles were taken into possession; inquest proceedings and post-mortem conducted. On 19th May, 1995, the accused was arrested from near the railway line, Dharampura close to the Yamuna bridge. He was medically examined. On finalisation of investigation, challan was presented which resulted in sessions case No. 11 of 1996.

8. The prosecution, to establish their case, examined as many as 19 witnesses. PW-1, Dr. Anil Kohli, deposed as to the cause of death and also to the factum of forcible intercourse. He exhibited the post-mortem as Ex. PW-1/A while his report regarding rape is Ex. PW-1/B. PW-3, Dr. J.S. Dalal, medically examined the accused and deposed to the effect that there was nothing to suggest that the accused was not capable of performing sex. His report Ex. PW-3/A further suggests that there was no injury of any type on the accused. PW-4, ST Mahesh Kumar, was the draftsman who took measurements of the site on 29th May, 1995 and prepared a site plan, Ex. PW4/A, on 7th June, 1995. PW-5, Constable Padma Nabhan, visited the spot with the photographer on 17th May, 1995 at around 12.30 p.m. and exhibited the photographs as Ex. P-1/5-8 which are the positives and Ex. P-1/A-4 the negatives. PW-6, Head Constable, Ram Pal, received copies of the Daily Diary Entry No. 20 dated 16th May 1995, regarding the missing report of Savita and on 1 7th May, 1995, handed over the investigation to SI Ram Avtar. PW-7, Head Constable, Daya Nando, is the Head constable, Moharar Malkhana. He deposed to the effect that SI Ram Avtar, deposited parcels with him on 17th May, 1995. PW-8, Head Constable, Inderjeet, was in-charge of the Dog squad. He deposed to the effect that the dogs could not go beyond the DDA flats, therefore, gave no lead to the case PW-10, Head Constable Ajit Singh, recorded the FIR No. 320 of 1995, Ex. PW-10/A on 17th May, 1995, at around 9.27 a.m. on the basis of the rukka from SI Avtar Singh. PW-11, Head Constable Rajinder Singh, deposed as to the items of recovery and memo prepared. Ex. PW-8/B. He along with SI Ram Avtar and Kamlesh Chand Gupta arrested the accused on 19th May, 1995, from near Yamuna bridge railway line. PW-12, Ram Chander, is the mainstay of the prosecution case as he deposed to the effect that on 16th May, 1995, at around 6.30 p.m. he saw his grand-daughter Savita, with the accused who was holding her hand. He is stated to have narrated this incident on 17th May, 1995, at 10.30 a.m. to Cheddi Lal and Kamlesh Chand Gupta. He further deposed that at 10.30 a.m. on 17th May 1995, he came to know about the female child's body lying in the urinal and went there, his statement was recorded on 17th May, 1995 in the evening. PW-13, father of the deceased, Cheddi Lal, deposed to the effect that the deceased went missing at 6.30 P.M. on 16th May, 1995, and deposes about Ram Chander telling him of seeing savita with the accused. on 17th of May, 1995, he identified the body of the deceased. PW-15, Kamlesh Chand Gupta, who lodged the FIR identified the body and also deposed to the effect that on 17th May, 1995, Ram Chander had informed him about the last sighting of the deceased with the accused. PW-17, Abrar, deposed to the effect that the accused used to take charas and liquor etc., and also smoked bidi, generally kisan bidi PW-18, is SI Ram Avtar, the Investigating Officer, while PW-19 is Uttam who also was cited as witness to prove that he had seen the accused with the deceased on 16th May, 1995 at around 6.30 p.m.

9. We have been taken through the evidence as also the entire record of the case. Learned counsel for the accused-appellant, Mr. S.K. Sharma, has strenuously argued that this case is based on circumstantial evidence, mainly hanging on "last seen" which is sought to be proved by the prosecution through ram Chander, PW-12, and thereafter, feebly, by introducing PW-19. He, has painstakingly taken us through the evidence of PW-12, Ram Chander, Pw-13, Cheddi Lal and Pw-15, Kamlesh Chand Gupta and uttam PW-19. He argued that the prosecution has failed to prove their case beyond reasonable doubt and, therefore, contends that the appellant's appeal be accepted.

10. We have given our careful consideration to the oral evidence and other material forming part of the record. Analysing the last seen evidence pressed into service by the prosecution, we find that Ram Chander, PW-12, has stated in his examination-in-chief that on 16th May, 1995, around 6.30 p.m., after he had closed his shop, he had seen the accused holding the hand of his grand daughter, Savita. On 17th May, 1995, when he came to open his shop around 10.00 a.m., he met Cheddi Lal, PW-13, and Kamlesh Chand, PW-15, they were both together when, at that time, Cheddi Lal told Ram Chander that Savita was missing since the previous evening, whereupon, Ram Chander, PW-12, told them that he had seen Savita with the accused at about 6.30 p.m. on 16th May, 1995, Ram Chander, PW-12, further stated that at 11.30 a.m. on 17th May, 1995 he came to know that a body of a female child was lying in DDA Shopping Centre, Shastri Park. He went to see the body and found that it was of Savita. In his cross-examination this witness stated that he had come to his shop at about 10.00 a.m,. and had stayed there for the whole day. If this be true, then his further statement :

"I met the police at about 11.30 a.m. on 17.5.95 at the shopping complex, I did identify the dead bdoy. I stayed at the shopping complex where the body was found till about 2.30 p.m. that day. I did not sign any paper that day at that place. I do not remember whether statement of any person was recorded by the police or not as I was in a distressed mood after seeing the dead body of the child. My statement was also not recorded there. My statement was recorded by the police on 17.5.95 after the dead body had been left at the mortuary and it was recorded at the shopping complex in the evening time. I left the mortuary before sun setting but I do not remember the exact time and the police also came there with me. Police and several other public persons were present at mortuary".

is contradictory. It has come in evidence that at the time of discovery of the body in the urinal block of the shopping complex, Ram Chander, PW-12, Cheddi Lal, PW-13 and Kamlesh Chand, PW-15, reached the spot. Police is also stated to have reached at about the same time. All three witnesses as also the Investigating officer and other members of the police party were present at the spot and documentation prepared. But we find that in none of the statements recorded at the spot nor any document prepared, bears the witness to the fact that savita was last seen with the accused.

11. Our attention has been drawn to PW-15/A, 15/B and 15/D-1. These are statements of Kamlesh Chand, PW-15, recorded by the Investigating officer on 17th May, 1995. Nowhere in these statements is there a mention of Kamlesh Chand, PW-15, having been informed by Ram Chander about Savita being with the accused at about 6.30 p.m. on 16th May, 1995. In one of the statements, PW-15/B, Kamlesh Chand mentions that he suspects the accused, Naresh, has taken the girl by enticing her. It is this suspicion which appears to have been subsequently sought to be converted to proof by introduction of Ram Chander whose statement was then recorded in the evening of 17th May, 1995, to suggest that on the morning of 17th may, 1995 at around 10.00 a.m., he had informed Ram Chander and Cheddi Lal of the accused being with the deceased at 6.30 p.m. on 16th May 1995. We may also mention that cheddi Lal's statement prior to 19th may, 1995, nowhere mentions Ram Chander informing him about the factum of Savita being last seen with the accused. Last but not the least, Cheddi Lal and Kamlesh Chand in their statements before the court do not support Ram Chander, PW-12, inasmuch as PW-12 having told Cheddi Lal and Kamlesh Chand while both were together of the last seen incident. Further there is no evidence on record to show that the accused was present in the house where Savita had gone to play on 16th May, 1995, or that while playing with the other children, she (Savita) visited the room of the accused and, therefore, the accused had an opportunity to entice her away. These missing links in the chain of circumstances are being absent. There has been, it appears, a desperate attempt on the part of the prosecution to establish the circumstances of last seen through PW-19, Uttam. He sells vegetables on a cart and roams about in the streets. His statement was recorded on 20th May, 1995, by the police. In his evidence before the court, he states that it was perhaps 16th May 1995, at about 6.30/6.45 p.m., he saw the accused, Chuttan, passing by him holding the hands of a girl aged about 4-5 years. He further states that on the next date when he came in the area of Shastri Park to sell vegetables, he noticed a large crowd in the DDA shopping complex. He went towards the crowd, entered the urinal block and saw the same girl lying there whom he had seen with the accused on the previous day. But in his cross-examination, he says "I did not tell the police that I had seen the deceased with Chuttan on the previous day." This witness does not inspire confidence as his behaviour is most irrational. Having seen the dead body of child who he had noticed with the accused on the previous evening, it should have been natural for him to have informed the police or even the relatives that he had seen this child with the accused on the previous evening. It also defies comprehension that this witness should keep silent till 20th May, 1995, when his statement was recorded per chance.

12. The next event in the chain of circumstances that was sought to be proved was to the effect that the accused smoked a particular brand of bidis, namely, 'Kisan' and that a wrapper of kisan brand bidi was found close to the body of the deceased in the urinals. To prove this, the prosecution introduced, PW-17, Abrar, who in his statement before the court says that he know the accused for the last twenty years. The accused used to take charas and liquor and also smoked bidis. He further went on to say that the accused generally smoked kisan bidis and he also smoked the same brand of bidis. From the testimony of this witness it is sought to be made out that the wrapper of kisan bidi belonged to the accused. We are afraid, we cannot subscribe to this deduction on the basis of ipse dixit of this witness. Merely, because the accused usually smoked kisan bidi does not ipso facto mean that the bidi wrapper belonged to the accused. There is no evidence to show that the accused purchased this bidi bundle. There is no evidence to identify that this bidi bundle wrapper was purchased by the accused; as also there is no evidence that kisan bidi was not a popular brand and was not easily available in the market. In this view of the matter, it is not possible to hold that the proverbial chain of circumstances is complete so as to lead to the hypothesis that the accused and only the accused could have caused the murder of Savita.

13. Yet another circumstance that needs to be pointed out here is the medical evidence that has been adduced by the prosecution to establish that Savita was sexually assaulted and raped before or at the time of the crime. This is borne out from the deposition of the Doctor, PW-1, Dr. Anil Kohli, who opines that injury No. 9 mentioned in the post mortem report was possibly due to forcible sexual intercourse. He has given his detailed report (Ex-PW-1/B) and has further confirmed that forcible intercourse has been committed on the deceased.

14. Dr. J. S. Dalal, PW-3, examined the accused and deposes that Ex. PW-3/A is the MLC prepared by him after examining the accused. There is nothing to suggest that the accused was not capable of performing sex. A reading of the MLC further says that there was no injury noticed on the penis of the accused. From this it can safely be inferred that the accused did not commit sexual intercourse with the deceased, Savita, aged 6 years. The under-garments of the accused taken into possession and the blood-stained clothes recovered from the dead body as also the semen swabs taken by the Doctor during post morterm examination gave no positive result to connect the accused with the crime.

15. We are, therefore, unable to uphold the judgment of the learned Additional Sessions Judge dated 30th October, 1998, in Sessions Case No. 11 of 1996, arising out of FIR No. 320 of 1995 police station, Seelampur and the same is set aside. Criminal Appeal No. 505 of 1998 succeeds. Consequently, the conviction of the appellant vide judgment dated 30th October, 1998, and the sentence awarded vide order dated 2nd November, 1998, are set aside. The appellant, Naresh a Chuttan, is acquitted of all charges and, if not wanted in any other case, shall be released from custody forthwith. Murder reference No. 5 of 1998 stands answered accordingly.