Ashok Kumar vs State
2008 Latest Caselaw 1090 Del

*                   HIGH COURT OF DELHI : NEW DELHI


+                          Crl. Appeal No. 394/2001


%            Judgment reserved on : 09.05.2008
             Date of Pronouncement : 22.07.2008


Ashok Kumar                                        ..... Appellant

                                     Through : Mr. Sumeet Verma,
                                                       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 against the judgment dated

22.04.1999 and sentence dated 26.04.1999 passed by Shri

Raghubir Singh, Additional Sessions Judge; Delhi in Sessions

Case No. 210 of 1996 (hereinafter referred to in short as the 'trial

Criminal Appeal No. 394 of 2001 1 of 35 Court'). By the impugned judgment, the Appellant has been

convicted under Sec. 302 of the Indian Penal Code (hereinafter

referred in short as the „IPC‟) and has been thus sentenced to

undergo life imprisonment and also to pay a fine of Rs.500/-,

failing which, the Appellant is required to undergo a further

rigorous imprisonment for a period of three (3) months. The

Appellant, being aggrieved by the impugned judgment, has

preferred the present Appeal under Sec. 374 (2) of the Criminal

Procedure Code (hereinafter referred to in short as „Cr P C‟).

2. In order to deal with the issues raised in the Appeal,

it would be important to set out briefly the case of the

prosecution in respect of the conviction of the Appellant in the

matter. The prosecution‟s case is as follows :--

3. On 25.04.1996, one Shri Kallan Khan, the father of the

deceased child, Shabana, lodged a missing person‟s complaint

with the Mangol Puri, Police Station (in short the said Police

Station) with respect to his child, Shabana. A Daily Diary (DD)

Entry No. 21A was made out at about 1.45pm, wherein, based

on Kallan Khan‟s statement it was recorded that his daughter,

Shabana, aged about seven (7) years, of medium built, wearing

salwar suit with red and white print, was missing since 4.00pm

on 24.04.1996.

Criminal Appeal No. 394 of 2001 2 of 35

4. The next day i.e. 26.04.1996 at about 2.30pm, the

said Police Station received a telephonic information from Shri

Kallan Khan that a foul smell was emanating from the adjoining

house. Upon receipt of the said information, an entry once again

was made in the Daily Dairy being DD No. 22A. Thereupon Sub-

Inspector (SI) Sanjay Daral alongwith Head Constable Satpal,

Head Constable Balbir Singh, Constable Bijender Singh and

Constable Ram Niwas left the Police Station to investigate the

matter further. On arrival at the place indicated by Shri Kallan

Khan, i.e. House bearing No. F-2/289, Mangol Puri, Delhi (in short

the „said premises‟) which is a house belonging to one Shri

Pancham Singh, who alongwith his three sons viz Ashok Kumar

(i.e. the Appellant/accused), Hem Raj and Suresh, resided in the

said premises at the relevant point in time, the Police found the

house locked. The Police team gained the access to the said

premises which comprised of an inner room. Upon a search

being carried out of the said premises, the Police team found the

body of the deceased child, Shabana, wrapped in a yellow

polythene stacked in a white sack on the shelf of the inner room.

Soon thereafter, Shri Rajender Bhatia, Additional Station House

Officer of Police Station, Mangol Puri, Delhi also arrived at the

crime scene and prepared an inquest report. He also recorded

the statement of the father of the deceased, Shri Kallan Khan.

Criminal Appeal No. 394 of 2001 3 of 35 Based on the aforesaid events at about 6.30pm, on 26.04.1996,

a First Information Report (FIR) was registered. The

investigating team after carrying out a search of the said

premises took into possession the following articles :- (i) a book

containing obscene literature, (ii) blood stained earth, (iii) One

blood stained underwear, which Shri Kallan Khan, identified as

one belonging to the deceased child. The underwear also found

to have pubic hair stuck on it. Based on the material seized, a

seizure memo was prepared by Inspector Rajinder Bhatia,

Additional Station House Officer, which was witnessed by Shri

Kallan Khan, the father of the deceased child.

5. On 27.04.1996, a Post Mortem was conducted by

Dr. K. Goyal. After the Post Mortem, the articles were handed

over by concerned Doctor to the Police and same were seized,

and a seizure memo to the same effect was prepared by SI

Sanjay Daral on the very same day i.e. 27.04.1996. The articles

taken into possession by SI, Sanjay Daral were a wooden box

containing the viscera of the deceased child; a sample bottle

containing the vaginal swab of the deceased, one plastic sack

containing a salwar, shirt/frock, an underwear, a gunny bag and

an envelope containing the sample of the blood of the deceased.

All these articles were seized by SI Sanjay Daral with the seal of

Dr. B Singh, Civil Hospital, Delhi. The Post Mortem carried out Criminal Appeal No. 394 of 2001 4 of 35 by Dr. K Goyal on 27.04.1996, at about 11.30 am, reveals that

there were abrasions between the left ear and left eye, cheek,

as well as, bruises on the middle of neck. The report opined that

all injuries appeared to be ante mortem and were caused by use

of blunt force. It further went on to opine that the pressure on

the neck structure was sufficient to cause death in the ordinary

course of nature. However, it pointedly records that no

definitive opinion could be given with respect to whether or not

the deceased child had been raped due to protrusion of external

genitalia on account of decomposition. The cause of the death

was given as asphyxia due to manual strangulation. The time

of the death is recorded as three (3) days prior to the date and

time of the Post Mortem.

6. After a great amount of effort and incessant search,

on 01.05.1996, the Appellant/ accused was apprehended and

arrested on being identified by Shri Kallan Khan, the father of the

deceased. On the very same day, a medical examination of the

Appellant was carried at Deen Dayal Hospital. In the Medical

Examination conducted by Dr. Pawan Bhargva, he opined that

there was no evidence to suggest that the Appellant was not

capable of having sexual intercourse. The semen and under

garment of the Appellant were sealed. On 02.05.1996, the

Police based on the information supplied by the Appellant,

Criminal Appeal No. 394 of 2001 5 of 35 discovered a metallic trunk at a place known as Village

Mukandpur, Delhi. The said box was also seized by the Police in

the presence of the victim‟s father, Shri Kallan Khan. The

metallic trunk was, as per the prosecution case, based on the

disclosure made by Appellant, attempted to be used by the

Appellant to stuff the body of the deceased, so as to enable him

to carry away the body of the deceased from the scene of the

crime. It transpired that when, the Appellant failed to fit the

body in the trunk, he carried the empty trunk and threw the

same away at the site at which it was found. The police found

blood stains on the inside of the trunk. Consequently, a piece of

the trunk with the blood stains was seized by the police. The

seized material was sent by the Police to the Forensic Science

Laboratory, Malviya Nagar, New Delhi (in short „FSL‟). In all,

thirteen (13) parcels were sent for analysis to the FSL which

included the Salwar and shirt worn by the deceased child and

the blood stained pillow found at the said premises amongst

others. The FSL report also confirmed that the blood stains found

on the pillow, underwear, ganji, frock/shirt, salwar, gunny bag,

metallic piece taken from the trunk, were of human origin of AB

Group. The semen stains on the salwar of the deceased and

underwear of the Appellant/ accused matched and had an

identical blood group which was of AB.

Criminal Appeal No. 394 of 2001 6 of 35

7. In view of the aforesaid material collected by the

Police, a report was filed with the Court and accordingly the trial

court framed charges against the Appellant on 16.09.1996. The

Charges framed against the Appellant were as follows :-

„... That between 24.04.96 and 26.04.96, at House No. F-289, Mangol Puri, you committed rape on Km. Shabana, aged 7/8 years, and thereby committed an offence punishable under Section 376 IPC.

Secondly, on the aforesaid date and place, you have committed the murder of Km.

Shabana by causing her death by strangulation, and thereby committed an offence punishable under Section 302 IPC, and within my cognizance.

And I hereby direct that you be tried by this Court for the above said offences. „

8. The Appellant pleaded not guilty and claimed trial.

Accordingly, trial was commenced against the Appellant.

9. At the trial, the prosecution examined Sixteen (16)

witnesses. The defence did not examine any witness.

10. At this stage, it is important to note that the

prosecution had listed brothers of the Appellant who were minors

at the relevant point of time namely; Shri Hem Raj (PW1) and

Shri Suresh (PW7), as their witness. However, they turned

hostile and hence, were cross examined by the Additional Public Criminal Appeal No. 394 of 2001 7 of 35 Prosecutor.

11. The prosecution in order to prove its case that the

Appellant had first raped the deceased and then caused death

by manual strangulation, relied upon the testimonies of the

following witnesses :--

12. Shri Bharat Chaudhary, (PW2) was examined, who

deposed that in January 1996, nearly three months before the

occurrence of the crime, an altercation had broken out between

the father of the Appellant / Accused and the father of the

deceased child, Shri Kallan Khan. The altercation ensued,

according to the said witness, on account of an attempt made by

the Appellant to molest the deceased child, Shabana. Since the

child‟s interest was involved, the matter was compromised

between the warring parties.

13. Head Constable Dharshan Kumar, (PW3) was

examined to prove the FIR (Ex.PW3/A) wherein, the information

with respect to the crime on receipt of the message from the

scene of the crime was recorded at about 6.30pm.

14. Smt. Anwari Devi (PW4) was examined to establish

that on 26.04.1996, she identified the body of the deceased

child, Shabana, in the said premises belonging to Shri Pancham

Criminal Appeal No. 394 of 2001 8 of 35 Singh, that is, father of the Appellant.

15. Head Constable Ram Niwas (PW5), was examined to

establish that on 27.041996, the material recovered after Post

Mortem was seized and, put into four (4) parcels with the seal of

Dr. B Singh, and was handed over to SI Sanjay Daral , who

prepared the seizure memo Ex.PW5/A.

16. Head Constable, Mool Chand PW6, was examined to

establish that the parcels received from the Inspector Rajender

Bhatia on 26.04.1996 and from SI Sanjay Daral on 27.041996

and those received on 01.05.1996 from the Inspector Rajender

Bhatia were received at the Malkhana of the said Police Station,

and duly entered in the Register No. 19 on various dates. The

said witness also deposed that on 18.06.1996, the thirteen (13)

parcels and (3) three samples were sent to the Central Forensic

Scientific Laboratory vide Certificate No. 140/21.

17. Dr. K Goyal (PW8), was examined to prove the Post

Mortem Report. Dr. K Goyal proved his Post Mortem Report and

deposed inter alia that the injuries referred to in the Post Mortem

Report were ante mortem in nature and were caused by blunt

force. He further opined that the pressure on the neck structure

was sufficient to cause death in the ordinary course of nature. He

opined that the cause of the death was manual strangulation Criminal Appeal No. 394 of 2001 9 of 35 which according to him occurred three (3) days prior to the Post

Mortem. As noted hereinabove, Dr. Goyal stated that no

definitive opinion could be given as regards the sexual assault as

the body had decomposed.

18. Constable Jogender Singh (PW10) was examined to

establish that thirteen (13) parcels and three (3) samples were

deposited with the Central Forensic Science Laboratory, Malviya

Nagar, New Delhi (in short CFSL) vide Certificate No. 140/21.

19. Constable Ramesh Kumar, (PW11) was examined to

establish that on 26.04.1996 he was posted at the said Police

Station, and that he was handed over special report by the Duty

Officer for delivery to the Senior Officers, as well as, the

Metropolitan Magistrate Shri Vinod Kumar.

20. Shri Kallan Khan (PW12) being the main witness of the

prosecution deposed that on 24.04.1996 at about 4.00 pm, he

found that his daughter, Shabana was missing. He further

deposed that he, accordingly informed the Police who requested

him to carry out the search of his daughter on his own. In his

testimony, he says that on 25.04.1996, at about 1pm, he lodged

a formal missing person‟s report with the Police. He further

deposed that on 26.04.1996, he discovered that a foul smell

was emanating from the said premises being adjoining house Criminal Appeal No. 394 of 2001 10 of 35 belonging to Shri Pancham Singh. He also stated that he,

thereafter went in search of his daughter and when he returned

at about 2.30 pm he found many people collected outside the

said premises from where the foul smell was emanating. Since

the said premises was locked from outside, he sought police help

by ringing the helpline number 100. The Police soon reached the

spot and broke open the lock of the said premises. On entering

the said premises, they found an inner room, the lock of which

was also broken. In the inner room of the said premises, they

found blood on the floor, and on a further search a sack was

discovered on the shelf of the room. Upon the sack being

brought down and opened it was found to contain a yellow

polythene bag. On opening the said yellow polythene bag, the

dead body of the Shabana was discovered and at that point of

time, she was wearing a shirt with red and white design;

however, the salwar was removed. He further deposed that on

a visual examination, it appeared that his daughter had been

raped and killed. He further deposed that the sons of Shri

Pancham Singh, namely Suresh and Hem Raj were missing since

25.04.1996. In his deposition, he further went on to say that Shri

Pancham Singh was away to his native place at Madhya Pradesh

for the last 10 - 12 days. He further went on to depose that he

suspected the Appellant as the perpetrator of the crime as on an

Criminal Appeal No. 394 of 2001 11 of 35 earlier occasion which took place in January 1996, he attempted

to commit the same act with his daughter, Shabana. He

accepted having given a statement to the Police (Ex.PW12/A). He

also deposed that from the scene of the crime, several articles

were seized such as the blood stained pillow vide memo

Ex.PW12/B, one book containing obscene literature, blood

stained earth, blood stained under wear with pubic hair stuck on

it which was sealed in his presence vide seizure memo

Ex.PW12/B.

Shri Kallan Khan, (PW12) further went on to state in his

deposition that he saw the Appellant being interrogated in the

Police Station on 02.05.1996 when in his presence, the Appellant

confessed to his guilt that he had raped and killed his daughter

and since, he could not fit the body in the metallic trunk, he had

stuffed the body in a polythene bag and the trunk with blood

stains was thrown away by him. He admitted his signature to

the disclosure statement of the Appellant being, Ex.PW12/C.

He also deposed that the Appellant took them to village

Mukandpur, Delhi where, in his presence, a metallic trunk was

recovered. He further deposed that a piece of the trunk with

blood stains was cut and seized vide seizure memo Ex.PW12/D,

on which he appended his signature at point A. He also identified

the metallic piece of the trunk (Ex. P-6), Salwar of the child (Ex.

Criminal Appeal No. 394 of 2001 12 of 35 P-7), shirt / frock (Ex. P-8) and polythene bag (Ex. P-9).

In his cross examination, Shri Kallan Khan (PW12) is stated

to have said that when he returned after searching for his

daughter on 26.04.1996, he found several people including his

sister Smt. Anwari Devi and Smt. Madina, his sister in law,

outside the said premises. He has stated in his cross

examination that the lock of the said premises where the crime

took place was not taken into possession by the police in his

presence. He stated in his cross examination that sons of Shri

Pancham Singh had not left the said premises in his presence.

He denied knowledge of the fact as to when the accused/

Appellant was arrested. He further stated in his cross

examination that on 02.05.1996, he was in the Police Station

between 8.00 to 10.00 am and he remained there for about 1 ½

hours. He further stated in his cross examination that no public

person was called when the Appellant / accused was

interrogated. In his cross examination, he further states that he

could not recollect the exact time when he left the Police Station

to go to Mukandpur village, where the trunk was discovered. He

denied that any public person gathered at the Mukandpur

village. He stated that he went to Mukandpur village in a police

vehicle alongwith a number of police personnel. He further

states in his cross examination that a metallic piece was taken

Criminal Appeal No. 394 of 2001 13 of 35 from the trunk found at Mukandpur village after procuring a

metal cutter from a neighbouring shop. However, he denied any

recollection as to who brought the said cutter. He accepted the

fact that salwar of the child and the underwear, as well as,

blood stained earth and other articles were recovered by the

police in his presence. He also admitted that the fact that

accused led the police to Mukandpur village to recover the trunk.

21. SI Sanjay Daral (PW13) was examined by the

prosecution to establish that upon receipt of information by the

Police Station he received a copy of DD No. 22A (Ex. 13A). He

stated in his deposition that upon reaching the crime scene it

was found that a foul smell was emanating from the said

premises and also that the door was locked from the outside.

He is stated to have deposed that the lock of the said premises

was opened with the help of a key, however, he did not recollect

from where the said key was procured. He deposed that the

body of the deceased was found in a sack on a shelf of the inner

room of the said premises and that the body of said child,

Shabana was identified by her father Shri Kallan Khan. He

further deposed that the place was photographed and blood

stained earth was taken and sealed. He also deposed that the

red coloured under wear of the girl child was found and was

seized alongwith a blood stained pillow and book containing Criminal Appeal No. 394 of 2001 14 of 35 obscene literature vide seizure memo Ex.PW12/B which bears his

signature at point B.

In his cross examination, SI Sanjay Daral (PW13) stated

that the information as regards foul smell was received at the

Police Station at about 4.20pm, whereupon he alongwith the

Constables left for the location indicated. The time span

between the receipt of information and their arrival at the spot

was given as 8-10 minutes. He further deposed in the cross

examination that the Additional Station House Officer, Inspector

Rajinder Bhatia reached the place between 4.30 to 5.00 pm. He

further deposed in his cross examination that information for

registration of the case was sent after two hours. He also

deposed that both the body and underwear were found in the

sack. He reiterated in his deposition that the articles were

seized from the scene of the crime.

22. Lady Constable Somna PW14, was examined to

establish that on 25.04.1996 she was working as Duty Officer at

the Police Station when Shri Kallan Khan, father of the deceased

child had come to record a missing person‟s report about his

daughter. She deposed that she had recorded the same and

made requisite entry against DD No. 21A. She further deposed

that on 26.04.1996 a telephonic message was received at the

Police Station that a foul smell was emanating from the said Criminal Appeal No. 394 of 2001 15 of 35 premises. The said information was recorded vide DD No. 22A

(Ex.PW13/A).

23. Inspector Rajinder Bhatia (PW15), was also examined,

who deposed that on 26.041996 he was posted as the Additional

Station House Officer at the said Police Station , and that at

about 4.20pm an information was received from Shri Kallan Khan

that a foul smell was emanating from the adjoining house at F-

289, Mangol Puri. He further deposed that the said information

was recorded in DD No. 22A which was marked to SI Sanjay

Daral and on receiving the said information, he reached the

indicated place where he found Shri Kallan Khan and other

persons at the spot. On reaching the indicated place he found

that the door of the said premises was closed and hence,

consequently, the same was opened. He reiterated the facts

which have been stated by the other witnesses about the

discovery of the body of the child on the shelf of the inner room

of the house. He further deposed that a private photographer

was commissioned and that, after preparing the brief facts of

the case (Ex.PW15/B), he also prepared the inquest report. He

further deposed that he recorded statement of Shri Kallan Khan

and Smt. Anwari Devi (PW4) who identified the body of the

deceased Ex. PW15/D. He proved the statement of Smt. Anwari

Devi (Ex.PW4/A). He deposed that he seized the articles Criminal Appeal No. 394 of 2001 16 of 35 referred to him and prepared the seizure memo (Ex.PW12/B) and

that the parcels were marked and sealed with the seal of RB and

were handed over to SI Sanjay Daral. He also deposed that he

prepared the site plan (Ex.PW15/F). He further deposed that on

27.04.1996 SI Sanjay Daral got the Post Mortem conducted and

that he deposited the exhibits received from the Hospital in the

Malkhana. Shri Rajinder Bhatia, (PW15) further deposed that

after searching for the Appellant / Accused at several places

including Muraini and other parts of UP, he received a

information that the Appellant was in Delhi and finally

apprehended the Appellant at the New Delhi Railway Station

near the tonga stand. He deposed that a personal search was

conducted (Ex.PW15/G) and accused was arrested on

01.05.1996. He further deposed that on 2.05.1996 the Appellant

was interrogated in the presence of Head Constable Om Parkash

and Shri Kallan Khan when his disclosure statement (Ex.PW12/C)

was recorded. He further deposed that based on the information

supplied by the Appellant, a metallic trunk was recovered from

the field in Mukandpur village vide memo Ex.PW12/B. On

recovery of the trunk, it was found discovered that inside of the

trunk was stained with blood and that a small piece of the trunk

was seized vide seizure memo Ex.PW12/D. He further deposed

that all the exhibits were sent to the CFSL and that, the

Criminal Appeal No. 394 of 2001 17 of 35 Appellant/ accused was medically examined on 01.05.1996 when

his semen, blood samples and pubic hair were preserved and

sent to CFSL.

In his cross examination, the witness Shri Rajinder Bhatia

(PW15), stated that when he reached the scene of the crime,

Smt. Anwari Devi was present. He has further deposed that he

did not recollect whether the door was locked or not from

outside. He stated that he did not take into possession any lock.

He denied the suggestion that the body was not discovered from

the said premises, that is, F 289, the house of Shri Pancham

Singh, the father of the Appellant/ accused who reportedly was

away to his native place, while other two younger brothers had

gone to attend to their respective jobs and were hence, not

present at that point in time. He stated that when the Appellant

was arrested, no person from the general public except Shri

Kallan Khan was joined, and it was the same position even when

the Appellant was interrogated. He stated that no public person

collected at the time of the recovery of the metallic trunk at

village Mukandpur. He stated in his cross examination that the

residential houses were at a distance of three kilometers from

the place where the metallic trunk was discovered. He further

deposed that on 01.05.1996 he seized semen and one sample

blood vide memo Ex.PW15/J. He also reiterated that on

Criminal Appeal No. 394 of 2001 18 of 35 02.05.1996 he had prepared the site plan (Ex.PW15/H) of the

place from where the metallic trunk was recovered.

24. HC Somna, PW16 was examined to establish that Shri

Kallan Khan had lodged a missing person‟s complaint on

25.04.1996 which was recorded vide DD no. 21A and also to

prove DD no. 22A (Ex.PW16/B).

25. The accused/Appellant in his statement under Section

313 Cr P C denied the case of the prosecution including the

knowledge of recovery of body from his house or the recovery of

the articles seized from the scene of the crime. He also denied

making of any disclosure statement to the police and in fact

stated that his signatures were taken on blank sheets of paper.

He however accepted the fact that his medical examination

(Ex.PW9/A) was conducted.

26. Learned Counsel for the Appellant in the background

of the evidence sought to be placed by the prosecution has

impugned the judgment of trial Court broadly on following

grounds:--

(i) that the conviction is based solely on the

circumstantial evidence which, if closely scrutinised, leaves

scope for various hypothesis and does not, as required by law

unerringly point to the guilt of the Appellant / Accused.

Criminal Appeal No. 394 of 2001 19 of 35

27. To buttress, the aforesaid general submission, learned

counsel for Appellant attempted to pick holes in the

prosecution‟s case by referring to the following :-

(i) the police while investigating the case had not associated the members of public as witness both when the body was recovered, as well as, when the metallic trunk was recovered at Mukandpur village, Delhi. It was also contended that with respect the recovery of body from a closed premises, the procedure prescribed under Section 100 Cr P C was applicable and being mandatory involvement of independent public witnesses was a must. In support of said submission, learned counsel for the Appellant has relied upon the judgment of Supreme Court in the case of State of Haryana v/s Jagbir Singh' reported in 2003(8) Scale 221 at page 225.

(ii) the learned counsel for Appellant submitted that in this case, it is evident that the body was planted in the house of the Appellant. According to him, two alternative hypothesis as to the persons apart from the Appellant who could have committed the crime, were available for examination in the present case; one in the form of a possibility of the person who had the key to the house and second, perhaps even the brothers of the Appellant.

(iii) the apparent contradictions in the depositions of Shri Kallan Khan (PW12) wherein he has stated that the lock of the house of the Appellant from which the foul smell was emanating was broken, as against the testimony of SI Sanjay Daral (PW13), who stated that the entry was gained by opening the lock with the help of key; the fact that they key and lock were not Criminal Appeal No. 394 of 2001 20 of 35 recovered is not disputed by the prosecution;

(iv) the deposition of the (PW15) seems to indicate that the Appellant was arrested at 2.00pm on 01.05.1996 from a tonga stand at New Delhi Railway Station after receipt of information that he was in Delhi on being spotted and identified by Shri Kallan Khan. As against this Shri Kallan Khan, (PW12) in his deposition has stated that on 02.05.1996 he had visited the Police Station to inquire about the case, it was then that he saw the Appellant being interrogated by the police, and further in his cross examination he denied the knowledge of the fact as to when the Appellant was arrested;

(v) and lastly, according to the Post Mortem Report the time of the death is stated to be three days prior to date and time of the Post Mortem. Thus, according to the information contained in the Post Mortem Report, the approximate time of death is 11.30am on 24.04.1996 in view of the fact that Post Mortem was conducted on 27.04.1996 at about 11.30am. This according to the learned counsel for the Appellant, clearly contradicts the deposition of Shri Kallan Khan, (PW12) who has stated in his deposition that the deceased child, Shabana went missing at about 4.00pm on 24.04.1996.

28. As against this, the Learned Additional Public

Prosecutor (APP) for the State relied upon the trial court

judgment to support the case of the prosecution. It was the

submission of the learned APP that looking at the totality of

circumstances, it is clear that the case of the prosecution is

Criminal Appeal No. 394 of 2001 21 of 35 proved beyond all reasonable doubt, in as much as:- (i) first, the

fact that the Appellant had an evil eye on the child, Shabana is

established by the testimony of Shri Bharat Chaudhary, (PW2)

who deposed that the Appellant had attempted to molest the

child in January 1996; (ii) second, the fact that the body of the

deceased child, Shabana was recovered from the house of the

Appellant, coupled with the fact that the recoveries were made

from the said premises, that is, the house of the Appellant which

included amongst others, the under wear of the child which had

blood stains of blood group of AB, as well as, the semen stains

on the salwar of the deceased child recovered from the said

premises were identical to the blood group of the Appellant and;

(iii) lastly, given the fact that the metallic trunk with the blood

group of the deceased was recovered at the behest of the

Appellant.

29. Having perused the evidence on record, and after

hearing submissions made by the learned counsel for Appellant,

as well as, the Learned APP, this Court has come to the

conclusion that the prosecution has been able to establish

beyond reasonable doubt, though based on circumstantial

evidence, that the Appellant is guilty of murder of the deceased

child, Shabana. In arriving at this conclusion, the following

Criminal Appeal No. 394 of 2001 22 of 35 material aspects are noted :--

30. A perusal of the testimony of Shri Bharat Chaudhary,

(PW2) clearly establishes that in January 1996, the Appellant had

attempted to molest the deceased child, Shabana. On account

of this, an altercation had broken out between the father of the

deceased Shri Kallan Khan, (PW12) and the father of the

Appellant, Shri Pancham Singh. In view of the fact that the

interest of the child was involved, the matter was amicably

settled between the feuding parties. It is to be noted that the

said witness, Bharat Chaudhary (PW2) vehemently denied the

suggestion made to him in the cross examination that no such

settlement had taken place or that the Appellant and his father

had not begged pardon of Shri Kallan Khan (PW12). Thus, a

reading of PW2 testimony clearly establishes that the Appellant

did not have honourable intentions towards the child Shabana.

What requires to be examined from hereon is, whether the

Appellant took this incident further and committed the crime he

is accused of. The first link in the chain is the prosecution‟s

evidence with regard to the discovery of the body of the

deceased child in the said premises, that is, the house of the

Appellant. In this regard, prosecution placed reliance on the

evidence of Smt. Anwari Devi (PW4), who is the sister of Shri

Kallan Khan, (PW12), that is, aunt of the deceased. In her Criminal Appeal No. 394 of 2001 23 of 35 deposition, Smt. Anwari Devi, (PW4) clearly stated that on

26.04.1996 she identified the body of the deceased child,

Shabana in the said premises, that is, the house of Shri

Pancham, who is father of the Appellant where admittedly the

Appellant resided at the relevant point in time. Smt. Anwari

Devi (PW4) identified her signatures on the identification memo

Ex.PW4/A. In the cross examination, the testimony of Smt.

Anwari Devi (PW4) remained unshaken. There was no suggestion

made to her with respect to discovery of the body of the child in

the said premises. The testimony of Smt. Anwari Devi (PW4) has

a ring of truth in it. Her testimony with respect to recovery of the

body of the child from the said premises has to be accepted.

31. The next link in the chain after having established

that the body of the deceased was found in the house of the

Appellant, is whether the Appellant could be linked to the

dastardly crime. With respect to the same, the prosecution

relied upon the scientific evidence to show that amongst other

articles seized from the scene of the crime on 26.04.1996 and

those seized on 27.04.1996, were the clothes of the deceased

child, which included the shirt, salwar and under wear of the

deceased child. Seizure memo being Ex.PW6/A dated 26.04.1996

was proved by Shri Rajinder Bhatia, Additional Station House

Officer, (PW15); and after, the Post Mortem was conducted on Criminal Appeal No. 394 of 2001 24 of 35 27.04.1996; articles received from the Hospital which included

the viscera of the deceased Shabana, one sample bottle

containing vaginal swab, one plastic sack containing the clothes

of the deceased, which included salwar, shirt, baniyan, one

envelope containing the blood on the cloth were put in their

respective parcels which were sealed with the seal of the

concerned doctor; were proved by SI Sanjay Daral, (PW13). The

medical examination of the Appellant was conducted on

01.05.1996 when in point of fact, his semen sample was

collected; a fact which the Appellant has accepted as correct in

an answer to the question made in his statement under Section

313 Cr P C. The forensic report which is Ex. A & B, its dispatch

and receipt was proved through deposition of Shri Rajinder

Bhatia (PW15), HC Mool Chand (PW6), and Constable Jogender

Singh, (PW10). The report of CFSL clearly indicates that the

semen samples found on the salwar of the child which was

seized on 27.04.1996 and the semen of the Appellant which was

taken on 01.05.1996 was found to be of same group i.e. AB

group. There is no denial that the semen of the Appellant does

have the same blood group i.e. AB. This when linked with the

recovery of trunk, which had blood stains of human origin with

blood group AB as per the CFSL report, the guilt of the Appellant

is squarely established. The recovery of the said trunk was made

Criminal Appeal No. 394 of 2001 25 of 35 at the behest of and pursuant to the disclosure statement of the

Appellant. It is well settled that a recovery made pursuant to the

disclosure statement is admissible under Section 27 of the Indian

Evidence Act. See Palukuri Kotayya v. Emperor, AIR 1947 PC

67, Delhi Administration v. BalKrishan AIR 1972 SC 3 and

Mohammad Inayatuallha v. State of Maharashtra, AIR 1976 SC

483.

The recovery of the trunk and the metallic piece of the

trunk with blood stains (Ex. PW12/D) is proved by the father of

the deceased child, Shri Kallan Khan (PW12); and Inspector

Rajender Bhatia PW(15), who specifically refers to the fact that

trunk was recovered from the fields in Mukundpur village which

is approximately 3 Kms away from the nearest residential

premises. Both the father Shri Kallan (PW12) and Inspector

Rajender Bhatia (PW15) stated in their deposition that at the

relevant time no person from the public collected at the site

where the metallic trunk was found. We find that their testimony

has a ring of truth in it. There is no animus alleged or

established with respect to these witnesses. The testimony of

these witnesses has to be accepted.

32. The submissions of the learned counsel for Appellant

that under Section 100 (4) Cr P C, it was mandatory on the part

of the police to involve public witness both at the time of Criminal Appeal No. 394 of 2001 26 of 35 recovery and identification of the body, in our view, is untenable.

A bare reading of the provision would show that the submission

is clearly fallacious. However, we intend to deal with this

submission in a greater detail since it effects investigations

conducted on a every day basis.

33. According to us, a clear distinction has to be drawn

between what the legislature intends as being mandatory as

against that which is desirable or directory. The settled

principle of interpretation is that the intendment of the

legislature is to be derived from the language used and the

setting in which the provision finds place in the statute.

34. For this purpose, we intend to examine the scheme of

the chapter in which Section 100 (4) Cr P C finds mention. The

said provision, that is, sub Section (4) of Section 100 Cr P C finds

mention in Chapter II of Cr PC. The said Chapter commences

with Section 91 which provides that whenever a Court or officer

in charge of the Police Station considers that the production of

any document or a thing is necessary or desirable for the

purpose of any investigation, inquiry, trial or other proceeding

before such court or officer, then the concerned person may

approach the court for issue of summons for production of such

document or thing. In this context under Section 92 power is

Criminal Appeal No. 394 of 2001 27 of 35 given in the Court to recover letter, telegrams or parcels from

postal and telegraph authorities in the manner prescribed.

Under Section 93 of the said Chapter where the Court has

reasons to believe that a person served with the summons or

orders will not comply with the same, it is empowered to issue

search warrant general or specific with respect to place of which

search or inspection is to be carried out. Section 94 deals with

a specific situation where search warrant is required in respect

of a place where the stolen property is deposited or where such

articles are deposited, sold or produced thereof. Similarly,

Section 95 deals with the search warrant and forfeiture with

respect to the publications of such newspaper, books or any

other documents containing matter which is punishable under

Section 124A, 153A, or 153B or Section 292 or 293 or 295A of

the IPC. Section 96 deals with the right of a person aggrieved

by forfeiture under Section 95 of the Cr P C to approach the

High Court for setting aside a declaration of forfeiture made

under Section 95 of Cr PC. Section 97 & 98 deal with warrants

of search issued with respect to the unlawful confinement of

persons. While Section 98, however, specifically deals with

unlawful abduction or detention of a woman or child under the

age of 18 years.

It is in this setting and scheme of the chapter II of the

Criminal Appeal No. 394 of 2001 28 of 35 Cr.P.C that, under the heading general provisions relating to

searches one finds the placement of Section 100 Cr P C. A

literal reading of the provisions of Section 100 (4) Cr P C would

show that it applies to a situation when in the process of

execution of a warrant (emphasis added), the police is required

to gain ingress into a closed place. In a closed place while

searching the place under sub Section (4) of Section 100 Cr P C,

it is required to obtain two or more independent and respectable

persons to witness the search. A bare reading of the provision

shows that this does not oust the general power of a Police

Officer to enter any premises without a search warrant. Consider

a situation where a police is in hot pursuit of a criminal, who

gains entry into a closed premises or the police receives

information or a tip off as regards a closed premises which is

being used for criminal activities or has information with it which

points to commission of a crime in premises located at place

which is not inhabitated by persons in close vicinity. Could it

then be said in such like a situation that the police cannot gain

entry till it complies with provisions of Section 100 (4) of the Cr P

C. To our mind, in such like situation and there could be myriad

possibilities, it would be tying up the police hand and foot, if we

were to hold that the police can gain entry to a closed premises

only with the aid of a search warrant and after it has gathered

Criminal Appeal No. 394 of 2001 29 of 35 two (2) independent public witnesses. To our mind, the answer

to this poser has to be an emphatic no. It is quite often seen

that speed and alacrity are essentials of a successful criminal

investigation. There is thus, according to us, no mandatory

requirement under Section 100 (4) Cr P C to involve two (2)

independent public witnesses every time access is sought to be

gained with respect to a closed premises, especially when, it is

not in pursuance of an execution of a warrant.

35. A division bench of Madhya Pradesh High Court in the

case of Madiya Chinna Obigadu v. State reported in AIR (32)

1945 Madras 523 dealing with a similar situation dealt with the

provisions of the Code prevailing at that point in time. Briefly,

the facts were that the Appellant / Accused had attacked and

killed the victim, however, the accused was chased by a persons,

who at the relevant time were sleeping next to the victim.

Accused was given hot chase which resulted in his entering his

own house. The police arrived at the scene and apprehended the

accused. In defence, his answer to the charges framed against

him, was that; the whole case was false; the blood stains on the

clothes were his own blood; and the dagger found on his person

was smeared with the blood by the head constable and; lastly

that all the evidence adduced by the prosecution was placed on

before the trial court due to enmity. Importantly in the cross Criminal Appeal No. 394 of 2001 30 of 35 examination conducted of a prosecution witness before the trial

judge it was noted as follows:-

„.. It has been elicited in his cross examination that he did not meticulously observe all the provisions of house searched in this case and that he did not search himself or the panchayatdars before going in.‟

While dealing with the aforesaid provision, the division bench,

observed that nothing was shown from the Code which required

that in case of emergency when the Police is not going for search

of any specified object, that it is required to search for

respectable citizens or have themselves searched before

conducting the search. The observations of Justice Mockett being

apposite are quoted below with profit:--

„ That observation is founded on an answer given in cross examination by the constable:

"I did not observe the precautions laid down in the Code of Criminal Procedure for the search of the house. I did not search myself or the three other persons before we went into the house."

Neither learned counsel before us are able to tell us clearly to what provisions of the Code this question was directed and Mr. Ethiraj can only suggest that must refer to Sec 102, Sub-S (3). Section 102, of course, relates to search warrants issued under S. 96 or 98, that is to say formal searches. We are not aware, in an emergency of this sort when the police are not going in for the purpose of a search for any specified object but for a general investigation, there is any provision of the Code which imposes on them the duty of searching respectable citizens or themselves before the public. Whether as a matter of convention Criminal Appeal No. 394 of 2001 31 of 35 these things may be done in order to remove any cause for subsequent criticism is another matter. But it would seem the learned Judge was misled by the question of counsel and the answer of the witness in supposing that the constable had neglected some actual provision of the Code. In the circumstances of this case, it would not be very surprising that with a man recently apprehended under very clear circumstances for murder the constable should at once go in and see what were the contents of his house.‟

36. The judgment cited by the appellant, i.e, State

of Haryana vs. Jagbir Singh & Anr. reported in 2003(8)

SCALE 221 does not deal with the provisions of Section 100

of Cr P C or a situation analoguous thereto and hence has no

relevance.

37. We may, however, add here that it may be desirable

for the police to involve independent public witnesses in

searches conducted by them even in situations not covered by

Section 100 of the Cr P C but as stated above, we cannot bring

ourselves to agree that there is a mandatory requirement of law

to the same effect.

38. The other aspect of the matter is what is evidentiary

value of recoveries made in such like situations. To our mind,

the evidentiary value of the material will have to be weighed

which would be specific to the facts and circumstances obtaining

in a particular case. It cannot be held as, contended by the

Criminal Appeal No. 394 of 2001 32 of 35 learned counsel for the Appellant, that recoveries made in such

situations are inadmissible. It is one thing to say that court will

have to closely determine what weight is to be given to the

recoveries made, it is another matter to ascrible illegality/

irregularity to the proceedings.

39. Now, in the light of the aforesaid discussions, let us

examine the recoveries made in the present case. The factum of

recovery of dead body and other articles pertaining to the child

is proved from the testimony of the official witnesses, as well as,

by the father (PW12) and Smt Anwari Devi (PW4) the aunt of the

deceased child. Their testimonies have a ring of truth in them

which remained substantially unshaken in respect of the core

aspects during their cross examinations. The witnesses cannot

be disbelieved simply because they are related. There is no such

principle of law. See observations of Supreme Court in the case

of Dalip Singh v. State of Punjab reported in AIR 1953 SC

364, and Masalti v. State of Uttar Pradesh reported in 1965

SC 202.

40. Furthermore, the fact that the semen of the blood

group „AB‟ which was found on the salwar of the deceased child

and the recovery of the blood stained trunk was made pursuant

to the disclosure statement of the Appellant / accused excludes

Criminal Appeal No. 394 of 2001 33 of 35 the possibility of any other person being involved when

juxtaposed with the other connected circumstances. What the

prosecution requires to prove is that a cummulative effect of

circumstances proved is so complete that it excludes the

possibility of the every other hypothesis and points

unequivocally to the guilt of the accused; though each

circumstance by itself may not be conclusive. This statement of

law has been enunciated by the Supreme Court in the case of C

K Raveendran v. State of Kerala reported in 2001 (1) SCC

225, at page 228, Paragraph 4.

41. With regard to the contradictions in the statement of

Shri Kallan Khan PW12 and SI Sanjay Daral PW13, as regards the

manner in which the access was gained to the said premises,

that is, the house of Shri Pancham. This apparent contradiction

has no relevance according to us if otherwise as

demonstrateable after putting together the evidence collected in

the case, the guilt of the Appellant / accused is established.

42. As regards the submission of the learned counsel for

the Appellant, with regard to the time of death being fixed by

virtue of Post Mortem Report as 11.30am on 24.04.1996, when

according to the testimony of Shri Kallan Khan (PW12) the child

was still alive as she went missing as per the testimony of PW12

Criminal Appeal No. 394 of 2001 34 of 35 only at about 4.00pm on 24.04.1996 has to be rejected since the

time of death in the Post Mortem report is an approximation and

hence, a margin of error of five to six hours will have to be

factored in. In these circumstances, we see no contradiction in

the testimony of Shri Kallan Khan (PW12).

43. As regards the submission of the learned counsel for

the Appellant that there is contradictions in the testimony of

PW15 & PW12 as to whether the Appellant was arrested on

01.05.1996 or 02.05.1996 is again according to us of not much

relevance as according to us the factum of the Appellant

arrested is not disputed. This is proved by Inspector Rajender

Bhatia PW15. We have no reason to doubt his testimony.

44. In view of the above discussion above, we find no

merit in the appeal and hence, the same is dismissed. The

conviction of the Appellant by the trial court is sustained.

                                             RAJIV SHAKDHER, J



                                             B N CHATURVEDI, J


July 22, 2008
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