Ramesh @ Bajrangi vs State
2008 Latest Caselaw 1089 Del

*                   HIGH COURT OF DELHI : NEW DELHI

+                            Crl.A.313/2004

%                       Judgment reserved on : 15.05.2008
                        Judgment delivered on: 22.07.2008

RAMESH @ BAJRANGI                              ..... Appellant
                                 Through : Ms. Purnima Sethi,
                                          Advocate
                                 versus

STATE                                          ..... Respondent
                                   Through : Ms.Richa Kapoor, APP

CORAM :
Hon'ble Mr. Justice B N Chaturvedi
Hon'ble Mr. Justice Rajiv Shakdher
1. Whether the Reporters of local papers may
   be allowed to see the judgment ?
2. To be referred to Reporters or not ?
3. Whether the judgment should be reported
    in the Digest ?

Rajiv Shakdher, J.

1. This is an Appeal under Section 374 (2) of Cr.PC against judgment

dated 4.2.2004 and sentence dated 7.2.2004 passed by the Additional

Sessions Judge, Smt. Asha Menon in Case No. 5/2000. By virtue of the

aforesaid judgment the Appellant has been convicted of offences under

Section 363/376/302/201 of the Indian Penal Code (hereinafter referred

to in short as „IPC‟). As regards conviction under Section 201 IPC, the

Appellant has been sentenced to five (5) years rigorous imprisonment

with fine of Rs.1000/-, in default of which, the Appellant has been

sentenced to undergo a further rigorous imprisonment for two (2)

months. In so far as offence under Section 363 of IPC is concerned, the

Appellant has been sentenced to undergo seven (7) years rigorous

imprisonment with fine of Rs. 3,000/-, in default of which, the Appellant

has been sentenced to undergo a further rigorous imprisonment of four

(4) months. As regards conviction under Section 302 IPC is concerned,

the Appellant has been sentenced to imprisonment for life with fine of

Rs.5,000/- failing which he is to undergo a further rigorous

imprisonment for six (6) months. Lastly, for the offence under Section

376 of IPC, the Appellant has been sentenced to life imprisonment with

fine of Rs.5,000/- failing which he is to undergo a further rigorous

imprisonment for a period of six (6) months.

2. The Appellant being aggrieved by the impugned judgment has

preferred the present Appeal before this Court.

3. For the purpose of disposal of the Appeal, it would be necessary

to detail out the case set up by the prosecution.

4. The prosecution‟s case is that in the night intervening 5/6 th June,

1999 a child aged four (4) years named Komal was kidnapped from her

house bearing No. 461, JJ Colony, Shakarpur, Delhi. On 6 th June, 1999

itself at about 6.45 a.m the Police Station at Saraswati Vihar, New Delhi

(hereinafter referred to in short as the „Police Station‟) was informed

telephonically that a girl named Komal D/o Shri Rajesh Kumar @

Sanjay was missing. A report to the said effect was entered into the

roznamcha. A copy of the same was prepared and issued to S.I Anil

Kumar for necessary action. The requisite information was entered in

the Daily Diary as Entry No. 41A (Ex.PW17/A).

5. Two hours later on the same day i.e 6.6.1999, at about 8.45 am,

the dead body of the girl Komal was found lying in the drain near J

Block, Shakarpur. The information was entered in the Daily Diary as

Entry No. 2A (Ex.PW 17/B). A copy of the report was prepared and

marked to sub-Inspector (SI) Dinesh Pal who alongwith Constable Jasraj

left for the site indicated hereinabove. At about 8.50 am on the same

day (i.e 6.6.1999) another entry being Daily Diary No. 3A ( Ex PW 17/C)

was made wherein it was recorded that Assistant sub-Inspector

Dharam Singh and operator Constable Devender had also left the

Police Station to assist in conduct of investigations at the spot

indicated in the information received by the Police. The said team was

also accompanied by Inspector Suraj Prakash Yadav. By 10.30 am the

Duty Officer at the Police Station through Constable Jasraj received

requisite information from investigating team at the site to register an

FIR under Sections 363/302/201 IPC. The said information was

recorded in Daily Diary Entry No. 5A (Ex PW 17/D). By about 11.10 am

on 6.6.1999 information with regard to the crime was sent to senior

officers. This information was recorded as DD Entry No. 6A (Ex PW17/E)

in the records of the Police Station.

6. In the interregnum while the investigating team was collecting

details with regard to the commission of the crime and requisite

material a secret information was received at about 3.00 pm by

Inspector R.N.Sharma (PW27) through an informer that the Appellant

who had recently been released from jail for commission of a similar

crime could perhaps be a possible suspect in respect of the

commission of crime in the instant case. This information received

from the informer was reduced to writing vide Ex PW23/B, which was,

identified by sub-Inspector Dinesh Pal and also bears the signatures of

Inspector R.N.Sharma (PW27) on receipt of abovesaid information, the

police record was checked whereupon it was discovered that an FIR

No. 384/1991 (Ex PW 27/C) under Section 363 of IPC in the same Police

Station had been registered, and the prosecution of the Appellant had

already taken place under Sections 302/384/201/120B/34 of the IPC. It

transpires that the Appellant has since been acquitted in that case.

7. Accordingly, the police surrounded the house of the

Appellant/accused being the House No. J-501/512 JJ Colony, Shakarpur,

Delhi. The Appellant/accused was then taken to the Police Station

where he was interrogated. The Appellant/accused Ramesh @ Bajrangi

made a disclosure statement (Ex PW1/E), which was, counter signed by

Inspector R.N.sharma (PW27). It is the prosecution‟s case that the

disclosure statement led to the recovery of the clothes worn by the

Appellant/accused at the time of the incident, in particular, the

underwear that he wore at the time when he was apprehended. His

disclosure statement also led to the discovery of the location where

the clothes of the deceased child had been burnt by the

Appellant/accused. The prosecution placed reliance on seizure memo

Ex PW14/A and pointed out memo Ex PW23/C. The said exhibits were

proved by SI Dinesh Pal (PW23). The Inspector Shri R.N.Sharma

(PW27) arrested the Appellant/accused and prepared a personal search

vide memo Ex PW1/D. The underwear which the appellant/accused was

wearing was taken into possession and was put in a parcel and sealed

vide memo Ex.PW14/C. At this point in time sub-Inspector Dinesh Pal (

PW23), Constable Devender, father of the deceased child Shri Rajesh

@ Sanjay (PW1) alongwith the grand mother Smt Ramwati (PW2) were

also present.

8. According to the prosecution, the Appellant/accused thereupon

accompanied the police to the DDA Park, Near Subhash Palace and

pointed out the place from where the dead body was recovered. The

Appellant/accused is also said to have guided the police team to a

nearby Peepal tree where the clothes of the deceased child were burnt

by him. As stated above, the police took the burnt clothes into

possession and prepared a parcel which was sealed and marked "RN"

in the presence of the grandmother Smt Ramwati (PW2) and the father

Shri Rajesh (PW1). It is the prosecution‟s case that both Smt Ramwati,

the grandmother (PW2) and Rajesh (PW1) identified what remained of

the burnt clothes of the deceased child, Komal. The remanants of the

clothes were put into a parcel. A memo was prepared being Ex

PW14/A. The said memo bear the signatures of both Rajesh (PW1) and

Ramwati (PW2). The said memo was also signed by Police personnel

sub-Inspector Dinesh Pal and sub-Inspector Devender. The police

thereafter lifted a small piece of the earth from the area and seized it

vide memo Ex PW2/A. An unscaled site plan was also prepared being

Ex PW27/D which bears the signatures of Inspector R.N.Sharma (PW

27).

9. Based on the disclosure statement; the clothes worn by the

Appellant at the time of commission of the crime being a trouser and a

T-shirt were also recovered from his house situated at J-501,

Shakarpur, Delhi. The clothes which were stained were again sealed

and marked "RN" and taken into possession vide memo Ex PW 14/B.

The said memo was counter signed by Inspector R.N.Sharma (PW27).

Thereafter the exhibits were deposited in the Malkhana and the body

was sent for post-mortem. However, the post-mortem could not take

place till 12.00 pm on 7.6.1999. The post-mortem was conducted by

Dr.K.Goyal (PW3), who deposed that on external examination he found

the following injuries:-

"1. There was sticky substance present over left inguinal region, dry and adhered consistency was like Semen. The Swab was taken from the substance for chemical analysis.

2. There was defuse bruising over front and left side of neck with few crescentric irregular scratches of size varying between .72 to 1 cm resembling nail marks over left side of neck. Bruising and scratches were scattered irregularly."

10. Dr.K.Goyal (PW3) has also proved the post-mortem report

(PW3/A). Dr.K.Goyal (PW3) was of the opinion that the cause of death

was asphyxia due to manual strangulation. He also opined that the

neck injuries and the vaginal injuries were ante mortem in nature. He

specifically opined that the vaginal injuries were consistent with

forcible attempt of sexual intercourse. In his opinion, the time of death

was about thirty five (35) hours prior to the date and time of conduct

of the post-mortem.

11. In the meanwhile on 7.6.1999 the police had also got a medical

examination conducted of the Appellant, at the Deen Dayal Upadhyay

Hospital. The Appellant at that time was accompanied by Head

Constable Baljeet. The medical examination revealed that there were

no external injuries on the person of the Appellant and also that he was

not incapable of sexual intercourse. Based on the aforesaid material

and evidences collected by the Police a challan was filed in the trial

court, and by an order dated 24.8.2000 the following charges were

framed against the Appellant:

"That in the night intervening 5/6-6-1999 you kidnapped Komal (minor) girl aged about 4 years from JJ Colony, Shakarpur, Delhi from the lawful guardianship of Rajesh Kumar @ Sanjay, her father and thereby committed offence punishable under Section 363 IPC and within the cognizance of this Court.

Secondly that on the aforesaid date, time and place after kidnapping minor girl Komal you committed rape on her and thereby committed an offence punishable under Section 376 IPC and within the cognizance of this court.

Thirdly that on the aforesaid date, time and place after committing aforesaid offences, you committed murder of Komal and thereby committed an offence punishable under Section 302 IPC and within the cognizance of this court.

Fourthly that on the aforesaid date, time and place after committing murder of Komal, you threw the dead body of Komal in the Nala near J-Block DD Park in order to cause the evidence of said murder to disappear with the intention of screening yourself from legal punishment of the aforesaid offences and thereby committed offence U/S 201 IPC and within the cognizance of this court.

And I hereby direct that you be tried for the said charges by this court."

12. The trial court upon perusal of the evidence placed before it, as

stated above, came to the conclusion based on circumstantial

evidence that the Appellant had committed the offences in respect of

which he was charged and accordingly convicted the Appellant under

Sections 363, 376, 302 and 201 of the IPC. The Appellant being

aggrieved preferred the present Appeal.

13. The prosecution in order to establish its case against the

Appellant examined twenty nine (29) witnesses. The Appellant‟s

statement under Section 313 of the Cr.PC was also recorded. The

Appellant, however, in defence has not led any evidence. The learned

counsel for the Appellant has impugned judgment of the trial court on

the following grounds:-

(i) the testimony of Smt Ramwati (PW2) is inconsistent and is full of

improvements and embellishments when read alongwith the statement

of the said witness made under Section 161 of Cr.PC;

(ii) while the father of the deceased child Rajesh @ Sanjay (PW1)

submitted that it was his brother Rakesh Kumar (PW5) who had gone

to the spot i.e the drain where the body of the deceased child was

discovered; the brother (PW5) in his cross-examination has stated that

no proceedings had taken place in his presence;

(iii) the testimony of the father of the deceased child Rajesh @

Sanjay (PW1) was full of contradictions, in as much as, in the cross-

examination when confronted with the statement made under Section

161 Cr.PC he denied that the Appellant/accused was arrested in his

presence. PW1 also denied that the underwear of the Appellant was

taken possession of and put into a parcel and sealed in his presence.

PW1 had also denied in his cross-examination, when confronted with

the statement made under Section 161 Cr.PC that the Appellant was

the one who had taken the police party to the spot where the body of

the deceased child was recovered or also at the spot where the burnt

clothes of the deceased child were found. PW1 also denied in his cross-

examination that he had identified the burnt pieces of clothes of the

deceased child which the police claim to have taken into their

possession and sealed in his presence;

(iv) The CFSL report based on which the prosecution has

attempted to connect the Appellant with the crime could not

have fixed the culpability on to the Appellant since the

blood group of the Appellant/accused was not mentioned in

the report;

(v) the reliance by the prosecution on the testimony of Shri Virender

Singh (PW10) as a witness who had last seen the Appellant with the

deceased child ought not to be believed as he was not an uninterested

and an independent witness and;

(vi) Lastly, it was also contended that the grandmother (PW2) has in

her testimony stated that the police had apprehended some other

persons also on suspicion who have been let off, while the Appellant

has been falsely implicated in the present case.

14. As against this the learned APP has contended that the

prosecution has been able to prove the guilt of the Appellant/accused

beyond reasonable doubt. For this purpose, the learned APP seeks to

rely upon the testimony of the grandmother of the deceased child

(PW2), the father, Shri Rajesh (PW1), and the mother of the deceased

child (PW7), as also the testimony of Virender Kumar (PW10) who had

seen the Appellant carry away a child of the same age at

approximately the same time. The learned APP relies upon recoveries

of articles made based on the disclosure statement of the

Appellant/accused, in particular, the underwear worn by him at the

time of commission of crime. The scientific evidence in the form of

CFSL report (Ex PW4/A) and the post mortem report (Ex PW3/A) to

connect the Appellant to the crime.

15. Having heard learned counsel for the Appellant and the State and

perused the evidence on record, we are of the view that the

prosecution has been able to establish the guilt of the

Appellant/accused beyond reasonable doubt. Our conclusion is based

on the following material evidence brought on record:-

16. It has been established by virtue of the testimonies of the father

Shri Rajesh Kumar (PW1), the grandmother (PW2) Smt Ramwati and

the mother of the deceased child (PW7); that the child was sleeping on

a cot in the house which was partly protruding outside the house and

at that point of time the grandmother who was inside the house was

preparing her evening meal after she had returned from the vegetable

market; the deceased child Ms.Komal was found missing when the

father Rajesh (PW1) alongwith his wife returned to their house between

12.00 pm-1.00 am after finishing his business of lending on hire T.Vs

and VCRs and lastly, that Smt Ramwati the grandmother (PW2) had

found the Appellant loitering in the vicinity of the house, in particular,

proximate to the location where the deceased child Komal was

sleeping on the cot in the doorway of the house. On this point the

testimony of PW2 is firm and that in the cross-examination there is no

suggestion to the contrary made to Smt Ramwati (PW2) by the

defence.

17. The fact that the Appellant had picked up the deceased child

while the other family members were not around is established by

virtue of the testimony of Shri Virender Singh (PW10) who is a witness

who last saw the Appellant carrying a child in his arms when the said

witness Virender Singh (PW10) was returning from his brother‟s house

at Shakarpur and proceeding to his house which is J-461, JJ Colony,

Shakarpur, Delhi i.e the house of the deceased child. Shri Virender

Singh (PW10) has deposed that when he was returning home he ran

into the Appellant who was evidently carrying a child of about four (4)

years in his arms; the child was rested on his chest across the

shoulders of the Appellant, and when he asked the Appellant where he

was going at that odd hour he is stated to have said that he was

coming back after getting some medicine for his niece. It is noted that

Shri Virender Kumar (PW10) has specifically stated in his cross-

examination that since the Appellant was a resident and a neighbour of

the locality he was aware of his previous antecedent and that he had

no difficulty in recognizing the Appellant due to the fact that even

though it was a late hour of the night he was able to recognize the

Appellant due to the street light in the vicinity. Shri Virender Singh

(PW10) has denied the suggestion made to him in his cross-

examination that he was falsely deposing as he was a friend of the

father of the deceased child. Based on the testimonies of PW1, PW2

and PW10 there is no difficulty in coming to the conclusion that the

deceased child was sleeping on a cot which was protruding outside the

doorway of the house when the Appellant, proximate in time and space

was not only found in the vicinity but was also seen with a child of

approximately the same age.

18. The remaining facts with respect to the discovery of the body of

the deceased child are borne out from the testimonies of Smt Ramwati

(PW2), Shri Rakesh Kumar (PW5) and two youngmen i.e Sonu Nagar

(PW6) and Ajay (PW8). The testimonies of the said witnesses

established that Sonu (PW6) and Ajay (PW8) discovered the body of

the deceased child in the drain at Subhash Palace, DDA Park and that

they gave the said piece of information to the family. Upon receipt of

information, necessary communication was sent to the Police Station.

Upon receipt of information the duty officer recorded the said

information in DD Entry No. 2A at around 8.45am (Ex PW17/B). A copy

of the report was prepared and entrusted to sub-Inspector Dinesh Pal

who alongwith Constable Jasraj left for the site. This was followed by

other police officers i.e Assistant sub-Inspector Dharam Pal and

operator Constable Devender also proceeding to the spot where the

dead body was found. The said information was entered into vide DD

Entry No. 3A (Ex PW17/C).

19. In the meanwhile, the police was informed by an informer that

the Appellant had earlier being apprehended in an another case being

FIR No. 384/91 with regard to commission of similar offence under

Section 363 of the IPC read with Section 302 of the IPC. The said

information which was received by the police on 7.6.1999 at about

3.00 pm was recorded vide Ex PW23/B. The said information which was

reduced to writing bears the signatures of Inspector R.N.Sharma PW27,

sub-Inspector Dinesh Pal PW 23.

20. Based on the aforesaid information, the police apprehended the

Appellant. The Appellant made a disclosure statement (Ex PW1/E). The

said disclosure statement led to the recovery of the remanant‟s of the

clothes of the deceased child from under a Peepal tree, and the clothes

worn by the Appellant/accused i.e the trouser and T-shirt, as well as,

the underwear that he wore at the time of commission of the crime.

The remanant‟s of the clothes of the deceased child were identified by

the father (PW1). It is well settled that the recoveries made pursuant

to the disclosure statement made by the Appellant/accused are

admissible to the extent it leads to the discovery of the said fact. See

observations of the Supreme Court in the case of Delhi

Administration vs. Bal Kishan AIR 1972 SC 3; Mohd. Inayatullah

vs. State reported in AIR 1976 SC 483. The aforesaid, when linked

with the testimony of Dr.A.K.Srivastava (PW4) who deposed that blood

and semen was found both on the underwear (Ex 1) of the

appellant/accused and on the vaginal swab (Ex-7) and further went on

to state that because blood and semen had got mixed, that is, there

was an overlapping and hence, the forensic analysis revealed AB

blood group; coupled with the observations in the post-mortem report

(EX PW3/A) wherein it has been observed that a sticky substance was

present in the left inguinal region which was dry and had consistency

like semen, and given the fact that in the medical examination (Ex P

21/A) of the accused on 7.6.1999 revealed that there were no external

injuries on the person of the Appellant, and also the opinion of the

doctor issuing the said report that the appellant was capable of sexual

intercourse; the only conclusion that could be drawn is that upon the

appellant having forceful sexual intercourse with the deceased child

the blood of the child got mixed with the semen of the Appellant which

was smeared on to his underwear.

21. A careful perusal of the post-mortem report injury shows that

there were injuries on the vagina which were ante-mortem. In our

view, the underwear of the appellant/accused was stained with the

blood of the child when the appellant had forceful sexual intercourse

with the child. This resulted in the underwear of the appellant/accused

being stained with not only the blood of the child which obviously

ozzed out due to vaginal injury but also his own semen. There were, as

stated above, no fresh external injuries found on the person of the

appellant/accused as found in this medical examination. Thus, the

Appellant‟s semen, the traces of which were found both on the body of

deceased child as is evident from the vaginal swab and that on the

underwear of the Appellant got mixed up as noted above. The very fact

that the Appellant had no injuries on his person the blood in this case

could only be that of the deceased child which as noted above got

mixed up with the semen of the Appellant in the instant case.

22. The opinion of Dr. K. Goyal (PW3) who conducted the autopsy

clearly opines that the deceased child had been subjected to a forceful

sexual intercourse and that the death of the child, Komal had taken

place on account of asphyxia due to manual strangulation of the

deceased. Dr.K.Goyal has proved the said post-mortem report Ex

PW3/A.

23. In view of the aforesaid facts and circumstances, we have no

difficulty in coming to the conclusion that the prosecution has been

able to prove beyond a reasonable doubt that the Appellant was guilty

of the offences charged. The Appeal has no merit and is thus

accordingly, dismissed.

                                    RAJIV SHAKDHER, J



                                    B N CHATURVEDI, J


July      , 2008
mb