State vs Mohd. Sheikh Noor Hussain
2006 Latest Caselaw 1777 Del

JUDGMENT

R.S. Sodhi, J.

1. While the State, in Death Sentence Reference No. 1 of 2006, supports and justifies the judgment of conviction dated 20th March, 2006 and order of sentence dated 31st March, 2006 of the trial court in Sessions Case No. 79/2004, accused-appellant, Mohd. Sheikh Noor Hussain, seeks to challenge the judgment and order whereby the learned Judge has held him guilty under Section 302 IPC as also under Section 376(2)(f) IPC and sentenced him to death and a fine of Rs. 500/- for the offence punishable under Section 302 IPC; imprisonment for life and a fine of Rs. 500/- for the offence punishable under Section 376(2)(f) IPC in Criminal Appeal No. 271 of 2006.

2. Brief facts of the case, as have been noted by the learned Additional Sessions Judge, are as follows:

Prosecution case is that accused who was also known by the name of Suljan was residing with his family consisting of his wife Rabia (PW1), one daughter named Jannati, aged 3 years and son Jannat aged 11/2 years in jhuggi cluster near cement godown Safdarjung Railway Station, Netaji Nagar within the jurisdiction of Police Station Sarojini Nagar. PW1 used to work as a part time domestic servant in the nearby colony. On 24.6.2002, PW1 left her jhuggi in the morning for her duty leaving behind her minor daughter and son in the company of her accused husband. At about 9.30 a.m., PW1 returned her jhuggi and found that her daughter Jannati (hereinafter to be referred as the victim) was weeping loudly and her husband was standing naked in the jhuggi. The girl was lying on the cot with injury marks on head and face and was bleeding from her vagina. When PW1 enquired her husband about such condition of her daughter, he put on his pant and ran away from there. PW1 chased her accused husband but he managed to escape. Seeing PW1 chasing her husband, Jubeda (PW4), a neighbour of PW1 also chased the accused. However, PW1 returned to her jhuggi and found that her neighbour Meenu, w/o Rehman had removed her daughter to Safdarjung Hospital. Dr. Rekha Trikey (PW6) prepared the MLC Ex. PW 6/A of the victim with history of assault by the father of the girl as told by Meenu. Duty Constable Sunil Kumar (PW6) gave telephonic information at about 10.45 a.m. about admission of a 3 years aged girl with unknown name, by one lady Meenu, r/o jhuggi cement godown, in injured condition to P.S. Sarojini Nagar which was recorded vide D.D. No. 30-B. Copy of this DD entry was handed over to SI Seema Singh (PW16) through HC Sukhbir Singh. PW 16 and constable Pramod (PW 7) went to the hospital and found the girl admitted in injured condition and Meenu was also present there who informed PW 16 that the girl had been raped by her father. In the meantime, PW 1 also reached in the hospital. PW 16 recorded the statement of PW1, which is Ex. PW 1/DA on record. PW 16 made endorsement for registration of FIR on the basis of which FIR No. 252/02 Ex. PW 9/A was registered Under Section 376 (2) (f)/323 IPC. PW 16 received a sealed parcel and a sample seal from the doctor through duty const. which were taken into possession. PW 16 took up the investigation of the case and went to the place of occurrence. PW 16 prepared the site plan Ex. PW 16/2. PW 16 found a blood stained underwear of the victim lying on the bed sheet of a cot. The bed sheet was found wet. Both these articles were sealed with the seal of SST and were taken into possession. IO did not find the accused in his jhuggi. At about 1 p.m., Jubeda (PW 4) found the accused in Nehru Park. Accused is alleged to have made an extra-judicial confession about having committed the rap of his daughter. Accused accompanied Jubeda. When accused and Jubeda were near the cement godown, constable Jai Singh (PW 3) met them. Jubeda handed over the accused to Constable Jai Singh. In the meantime, SI Seema Singh (PW 16) on way to the police station met PW 3 with the accused in his custody near the gole chakkar Netaji Nagar. PW 3 handed over the accused to PW 16 who then took the accused to his jhuggi. Accused produced his black colour underwear before the IO. The IO took his underwear into possession in presence of Jubeda, Meenu, Ct. Pramod and Ct. Jai Singh vide memo Ex. PW 3/D. The IO arrested the accused and sent him to Safdarjung Hospital where his MLC was prepared on the same day but he was not found having any injury on his person. Accused was again medically examined on 25.6.2002 whereby he was found capable of performing sexual act. The duty constable from Safdarjung Hospital on 25.6.2002 at about 3.00 a.m. reported that the victim expired in the hospital and this information was recorded as DD No. 6A as a result of which investigation of this case was converted to the investigation Under Section 302/376(2) (f) IPC. Thereafter, the investigation of the case was transferred to Additional SHO Inspector Ishwar Singh (PW 17) who completed the inquest proceedings and moved an application for conducting postmortem examination of the dead body of the victim. Dr. Chadrakant (PW 18) conducted the postmortem. PW 17 recorded the statement of remaining witnesses. PW 17 collected the MLC of the victim, the MLC of the accused and postmortem report. The sealed parcels were sent for examination at FSL, Malviya Nagar. As per FSL the underwear of the victim and the accused were found having blood stains of human origin. Thereafter, charge sheet was filed for trial of the accused Under Section 302/376 (2) (f) IPC.

Charge Under Section 376(2)(f) IPC and 302 IPC was framed against the accused to which he pleaded not guilty and case was put to trial.

3. The Prosecution, in order to bring home its case, examined as many as 19 witnesses. Of these, PW-1 is Smt. Rabiya, the wife of the accused who is also the complainant. PW-2 is Doctor Joginder Kumar who proved that he medically examined the accused whereby the accused was found capable of performing a sexual act. PW-3 is Constable Jai Singh who joined the investigation with the Investigating Officer, SI Seema Singh, along with other Police Officers. PW-4 is Smt. Jubeda, a neighbour of the complainant and a material prosecution witness who apprehended the accused and produced him before the Investigating Officer and witnessed the proceedings conducted by the Investigating Officer regarding recovery of the underwear of the accused and other articles from his jhuggi. PW-5 is Smt. Meenu, another neighbour of the complainant, who joined investigation with the Investigating Officer. This witness turned hostile. PW-6 is Dr. Rekha Tirkey who proved the injuries on the person of the victim by proving her MLC, Ex. PW-6/A. PW-6A is Constable Sunil Kumar who informed the Police Station Sarojini Nagar about the admission of the victim in an injured condition on 24.6.2002 at 10.45 a.m. and again informed about death of the victim on 25.6.2002 in the Hospital. He also proved that the doctor handed him over a sealed parcel, which he handed over to the Investigating Officer. PW-7 is Constable Pramod Kumar who joined investigation with Investigating Officer. PW-8 is Constable Vandana who proved that she recorded DD No. 30-B on 24.6.2002 and handed over the copy of the same to Head Constable Sukhbir Singh. PW-9 is Head Constable Surender Singh who proved that he recorded the FIR of the case and proved the copy of the same as Ex. PW-9/B. PW-10 is Head Constable Dharampal who proved the deposit of the case property in sealed condition by the Investigating Officer on 24.6.2002 and by Inspector Ishwar Singh on 26.6.2002. PW-11 is ASI Puran Singh who proved that he recorded DD No. 6-A regarding death of the victim informed from the Hospital by Duty Constable on 25.6.2002 at 3.00 a.m. PW-12 is Constable Dilbag Singh who proved that he deposited the sealed parcels at Forensic Science Laboratory. PW-13 is Constable Sunil who joined investigation with the Investigating Officer on 26.6.2002. PW-14 is SI Madan Pal who proved that he prepared the scaled site plan. PW-15 is Constable Krishanbir who delivered the special report to the Area Magistrate and senior Police Officer. PW-16 is SI Seema Singh, the Investigating Officer of the case. PW-17, is Inspector Ishwar Singh, the second Investigating Officer who proved that he moved an application for conducting postmortem on the dead body of the victim. He also proved that he received four sealed bottles from the doctor, which he deposited in the malkhana, and he also collected the FSL reports, Ex. PW-17/E and Ex. PW-17/F. PW-19 is Dr. Chander Kant who conducted postmortem on the dead body of the victim and proved the postmortem report, Ex.PW-18/A.

4. PW-1, Rabia, states that she is wife of the accused, Mohd. Sheikh Noor Hussain, and is working as a maid servant. She had two children, one male and the other female. The daughter, Jannati, was aged about 3 years and the son 2 years of age. On the fateful day, she had gone to work at the kothi and left the children in the custody of her husband at home. On return after 2-3 hours, she saw Jannati lying on a cot in an unconscious condition. She called Meenu and Jubeda from the nieghbourhood. Her husband was standing outside the jhuggi. She told Meenu and Jubeda that her husband had killed the daughter. She also goes on to state that she stated so out of anger for the reason that her husband used to ill treat her. People gathered at the spot and her husband ran away. The child was taken to the hospital at around 4.00 p.m. She was in an unconscious condition and died at 8.00 p.m. She states that she was called to the Police Station after two days where her statement was recorded and that she made a wrong statement before the Police out of anger. The witness was cross-examined by the Additional Public Prosecutor, but she did not support her previous statement. On a court question as to what happened to her daughter and how she died, the witness answered that her daughter was having fever but when she returned from work, she had injuries on her person upon which she was taken to the hospital. The child was injured on the hand and the head. This witness was cross-examined by counsel for the accused to the effect that the witness had been working as a part-time maid for the last 7-8 months and had left the children with her husband everyday. Her husband had never misbehaved with any of the children at any time.

5. Another witness is PW-3, Constable Jai Singh, who deposes that on 24.6.2002 he was posted at Police Station Sarojini Nagar and, while patrolling, came to know that Mohd. Sheikh had committed rape on her daughter and that she was admitted in Safdarjang hospital. On this, he went to the hospital to know the condition of the child. At the hospital SI Seema Singh, Constable Pramod Kumar and Constable Sunil Kumar met him. Constable Sunil Kumar produced a small bottle which was sealed with the seal of "SJH" and a sample seal and the same were taken into possession vide seizure memo Ex. PW-3/A. The witness goes on to say that Jubeda produced the accused before the Investigating Officer who arrested him vide arrest memo, Ex. PW-3/C. Thereafter the accused, while in Police custody, led them to the jhuggi at Netaji Nagar and from there got recovered one kachha which was wrinkled. The same was converted into a parcel vide memo Ex. PW-3/D.

6. PW-4, Jubeda, states that about 10-11 months back at about 9/10 a.m. she was separating papers near railway line and saw one woman running behind her husband raising an alarm "parkro pakro". The lady, on inquiry, told her that her husband had given some injuries to her daughter and that she was following him to apprehend him. This witness also followed the accused but could not apprehend the him. Thereafter, they came to the jhuggi and found people gathered and that the condition of the girl was serious. The witness goes on to say that the mother of the deceased informed her that the accused had injured the child. She also told her that the child was naked and was having injuries on her private part. The injuries were caused by her husband. This witness had personally seen the injuries which were bleeding. The child was removed to the hospital. The witness further goes on to say that on the same day she found the accused in Nehru Park and brought him to the Police Station. The accused thereafter took the police party to the jhuggi from where he got recovered an underwear.

7. The case of the Prosecution primarily revolves around the statement of PW-1 as also PW-4. Of these witness PW-1 appears to have turned hostile. But from a close analysis of her statement, it is evident that on the fateful day she had left the children of the family in the custody of her husband and on return after about 2 hours found that the girl child badly wounded and the husband standing outside the jhuggi. Upon confrontation, the husband ran away. This part of the testimony of PW-1 has not been challenged by the accused. There is also no explanation offered by the accused as to how the child of the family received injuries and, to say the least, and the nature of injuries received by the child that have been set out in the postmortem report by PW-18, Dr. Chanderkant which are as follows:

1. Abraded contusion middle of scalp, size 4 cms x 2 cms.

2. Fracture lower 1/3rd of left humerus

3. Fracture of left elbow.

4. Well defined teeth mark on the upper part of back towards midline left side lateral to left scapular region, size in an areas of 4 cms.x 4 cms.

5. Well define teeth mark on right miaxillary region in an area of 3 cms. X 3 cms.

6. Well defined teeth mark on right cheek extended towards right mandible base in an area of 3 cms. X 2 cms.

7. Multiple abrasion on right sub-mandibular region in an area of 6 cms. X 3 cms.

8. Abrasions on forehead right side, above right eye brow in an area of 2 cms. X 2 cms.

9. Multiple, variable size abrasions tip of nose in an area of 3 cms. X 2 cms.

10. Well defined bite mark on left cheek in an area of 4 cms. X 3 cms.

11. Abrasions in the right inguinal region size 2 cms. X 2 cms.

12. Local examination of private part irregular tearing of hymen at various places, clotted blood present at the torn margins. Tearing of vaginal wall at 6 O' clock and 4 O' clock position, clotted blood present, uterus normal.

During international examination, I noted the following findings:

1. There was extravasation of blood under scalp in the both frontal and both parietal region, generalised subarchnoid, haemorrhage on superior surface of both hemispheres. Brain was congested with petechael haemorrhages oedematous.

2. Both lungs were congested and oedematous

3. Stomach contained semi digested, semi liquid contents with healthy mucosa.

4. Liver, kidneys and spleen were congested.

I gave approximate time since death about 33 hours. In my opinion cause of death cause shock, head injury and tearing of vagina with other associated injuries, antemortem in nature, and collectively and injury No. 12 individually sufficient to cause death in ordinary course of nature, injuries No. 4, 5, 6, 9 and 10 were likely to be caused by human bite and injury No. 12 was caused by insertions of firm, long object like penis.

8. Counsel for the appellant submitted that there is no eye witness to the occurrence and that mere presence of the injuries on the child is no conclusion that the appellant has caused the injuries. He also submitted that the forensic reports do not show that the underwear of the accused has the blood of the child on it. He also submitted that on medical evidence no injury was found on the appellant's penis. Therefore, the Prosecution has not been able to discharge its onus probandi. However, we find that the circumstantial evidence brought on record by the Prosecution reveals that the children of the family were left in the custody of the appellant. The appellant had admitted also this fact in his statement under Section 313 Cr.P.C. It was for the appellant to explain how the child was injured and, in particular, the nature of injuries received by the child. The incriminating circumstances noted by the trial court are as follows:

(1) PW1 had left her jhuggi on 24.06.2002 in the morning leaving behind the victim in the care of the accused.

(2) On returning the jhuggi at about 9.30 a.m. PW1 found that the victim was unconscious and was having injuries on her head and mouth and was bleeding from her vagina.

(3) PW1 found the accused outside the jhuggi who ran away as people collected.

(4) Leaving behind the victim in that very condition, PW1 chased the accused but the accused made his escape good

(5) Meenu (PW5) took the victim to the Safdarjang hospital in absence of PW1.

(6) Meenu gave the history of the condition of the victim to the doctor as assault by the father of the victim.

(7) Accused did not return his jhuggi and was later on apprehended by jubeda (PW4) on the same day in the afternoon.

(8) Jubeda (PW4) handed over the accused to Const. Jai Singh (PW3) who then handed him over to PW16 SI Seema Singh, the IO.

(9) On medical examination vide MLC dated 24.6.2002 accused was not found having any injury. Accused was found capable of doing sexual act.

9. Taken cumulatively, the evidence on record conclusively establishes that it was the appellant who, while being the custodian of his child, has caused her injuries which resulted in her death. The chain of circumstances is complete, leading to only one hypothesis of guilt. In that view of the matter, we uphold the conviction of the appellant under Section 302 IPC.

10. As regards his conviction under Section 376(2)(f) IPC, we find that the scientific evidence, namely, the CFSL report does not support the Prosecution's case of rape. Firstly, the underwear which is stated to be blood stained is not proved to have been worn by the accused at the time of the incident; secondly, the blood stains do not match those of the deceased. Further, there is no injury on the accused found during the medical examination. Consequently, we acquit him of the charge under Section 376(2)(f) IPC.

11. Coming to the question of sentence, although this is a case which is repulsive and gruesome in nature, yet we find that the accused comes from the poorest strata of society and it cannot be ruled out that there is no possibility of the accused being reformed and rehabilitated into the society nor is there any evidence to show that the accused would continue to commit acts of violence as would constitute threat to the society. In this view, we feel that ends of justice would adequately be met if the sentence of death is converted to sentence of 'imprisonment for life' together with a fine of Rs. 500/- and in default of payment of fine, further simple imprisonment for one year. Ordered accordingly.

12. The Death Sentence Reference stands answered accordingly and the appeal disposed of in the above terms.