Pramod vs State Nct Of Delhi
2009 Latest Caselaw 5149 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of decision : 11th December, 2009

+                          CRL. A. No. 167/2006

        PRAMOD                                   ..... Appellant
                            Through:   Mr.B.K.Kapoor, Advocate

                     versus

        THE STATE OF NCT OF DELHI       ..... Respondent
                      Through: Ms.Richa Kapoor, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?                     Yes

     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated 02.02.2005,

the appellant has been convicted for the offence punishable

under Section 366, Section 376 IPC and Section 302 IPC. For

the offence punishable under Section 302 IPC and Section 376

IPC, he has been sentenced to undergo imprisonment for life

for each offence and for the offence punishable under Section

366 IPC he has been sentenced to undergo rigorous

imprisonment for 10 years.

2. The appellant has been convicted for having raped and

murdered Kumari 'R', daughter of Sudhir Kumar PW-3.

3. A perusal of the impugned judgment shows that the

learned Trial Judge has relied upon four pieces of incriminating

evidence against the appellant.

4. The first incriminating evidence/circumstance is the

stated extra-judicial confession made by the appellant before

Sudhir Kumar PW-3. The second incriminating

evidence/circumstance is the MLC Ex.PW-1/A of the appellant

which records that when he was examined on 05.12.2002, two

injuries on his male sex organ, one being on the 'UMBLICUS'

and the other near 'FREANULUM' were noted and as per the

testimony of Dr.Vinay Kumar Singh PW-2, who had examined

the appellant after Dr.P.K.Dalmia PW-1 had examined him and

prepared the MLC in question, the injuries were opined to be

the result of forceful intercourse 4-5 days back. The third

incriminating circumstance/evidence is that the half button,

Ex.P-2 seized at the spot where the dead body of the young

girl was recovered was opined by the FSL to be the

counterpart of another half broken button on the shirt Ex.P-3,

which was got recovered by the appellant from his room

pursuant to his disclosure statement. The FSL report opined

the two half buttons to be similar in characteristics and the

counter part of each other. The fourth incriminating

evidence/circumstance is that the appellant led the father and

the neighbour of the girl to a hidden and a secluded spot

where the body of the girl was found i.e. the appellant had

knowledge of the spot where the dead body was lying and he

claimed that somebody handed over the map Ex.P-4/A to him

and told him that the body of the girl can be found as per the

plan but failed to explain who the person was.

5. It is apparent that the fate of the appellant would centre

where the aforesaid circumstances pressed into aid by the

learned trial judge have been proved by satisfactory evidence.

6. It is not in dispute that the appellant is the cousin of the

father of the deceased and resides in the same building in

which the deceased and her parents were residing. It is also

not in dispute that the landlord Raj Kishore PW-4 resides in the

adjoining building. It has not been disputed before us that the

deceased Kumari 'R' was aged about 7 years when the

unfortunate young girl was ravished and murdered and that

the appellant was aged 20 years when the crime took place.

7. The process of law was set into motion, when on

02.12.2002 DD No.13-A, Ex.PW-6/A, was recorded by the Duty

Officer at PS New Ashok Nagar recording that Sudhir Kumar

PW-3, the father of Kumari 'R' had reported that his daughter

was missing since 05.00 P.M. on 01.12.2002 and inspite of all

efforts made to find her, she could not be found. Needless to

state, a missing persons' complaint was registered at the

police station.

8. Efforts made to trace Kumari 'R' remained futile, till on

04.12.2002 the appellant lead PW-3, the father of the girl and

PW-4, the landlord of the building to the bushes near Chilla

Regulator and pointed out the same, informing that some

person handed over to him a map Ex.PW-4/A and informed

that the body could be found as per the plan. It be noted that

the place where the body was found is a secluded spot away

from the main road and is surrounded by thick bushes and

trees. It is not visible from the road. Needless to state, the

dead body of the young girl was found at the spot and

information thereof was given at the police station by PW-4 as

recorded in DD No.18-A, Ex.PW-6/B on 04.12.2002.

9. Armed with a copy of the DD No.18-A, SI Kishore Pandey

PW-11, accompanied by SI Jagtar Singh (not examined) and Ct.

Dilbagh (PW-8) left for the spot. At the spot SI Kishore Pandey

prepared the Tehrir Ex.PW-11/A by making an endorsement

beneath DD No.18-A and forwarded the same for FIR to be

registered for the offence of rape and murder, since with

reference to the injuries on the private parts of the dead body,

SI Kishore Pandey formed an opinion that the young girl had

been raped. At the police station the FIR was registered and

since it related to the offence of murder, as per office orders

issued by Delhi Police, requiring further investigation to be

conducted by an officer not below the rank of an Inspector,

Inspector O.P.Singh PW-12, the SHO of PS New Ashok Nagar

proceeded to the spot where the spot proceedings were jointly

conducted, with respect to the investigation, by SHO O.P.Singh

and SI Kishore Pandey.

10. The map Ex.PW-4/A stated to have been handed over by

the appellant to PW-3 was handed over by PW-3 to Inspector

O.P.Singh PW-12, who recorded said seizure vide Memo Ex.PW-

4/B. A chappal Ex.P-1 was seized as recorded in the Memo

Ex.PW-3/C. A half broken button Ex.P-2 was recovered from

the spot as recorded in the Memo Ex.PW-3/D. The appellant

was interrogated at the spot by Inspector O.P. Singh PW-12

with respect to how he came in possession of the map Ex.PW-

4/A. The appellant claimed that somebody has handed over

the same to him. He gave no explanation as to under what

circumstances and who gave the map to him. He was

interrogated further, and at that stage, made a disclosure

statement Ex.PW-3/B informing therein that he had committed

the offence of rape and murder of his cousin and that the shirt

which he was wearing at the time when he committed the

offence can be got recovered by him as he had kept the same

in his house. Thereafter, in the presence of PW-3 & PW-4, he

led Inspector O.P. Singh to his house and produced a shirt

Ex.P-3 which was seized as recorded in the Memo Ex.PW-4/C.

The same had a half broken button still stitched to the shirt.

11. The appellant was arrested and on the next date i.e. on

05.12.2002 was sent to Lal Bahadur Shastri Hospital for a

medical check-up where Dr.P.K. Dalmia PW-1 examined him

and prepared the MLC Ex.PW-1/A, noting therein the two

injuries on the male sex organ of the appellant; the injuries

being as recorded by us in para 3 above. On the same day the

appellant was examined at the same hospital by Dr.Vinay

Kumar PW-2, who opined with reference to the injuries noted

on the MLC Ex.PW-1/A, that the two injuries suggested forceful

intercourse 4-5 days back. He also opined that the appellant

was capable of sexual intercourse.

12. In the meanwhile, the dead body of the young girl, which

was recovered on 04.12.2002, was sent to the mortuary of Lal

Bahadur Shastri Hospital, where Dr.Vinay Kumar PW-2

conducted the post-mortem and prepared the post-mortem

report Ex.PW-2/B recording therein the presence of ligature

marks on the neck of the young girl. He opined that the cause

of death was 'asphyxia' due to strangulation. Various injuries

on the other parts of the body suggesting resistance by the

victim were noted. Pertaining to whether the young girl was

subjected to sexual intercourse, he noted the existence of

injuries on the 'labia majora' of the young girl.

13. The half button Ex.P-2 as also the shirt Ex.P-3 was sent

for forensic examination and as per the report Ex.PX it was

found that both half pieces of button were similar in respect of

colour, design, number of holes, diameter, thickness, distance

between the holes and diameter of holes. It was noted that

the broken edges of the two pieces of button were physically

fitted when placed in juxtaposition. It was opined that the

afore-noted features were sufficient to form an opinion that

the two pieces were of the one and the same button.

14. Conceding that the medical examination of the appellant

conducted on 5.2.2005 as recorded in the MLC Ex.PW-1/A

clearly established that the appellant had forceful intercourse

4-5 days back i.e. on 1.2.2005, counsel states that the

appellant being a young boy could have had sex with anyone.

This is hardly a satisfactory answer because having conceded

that the injury is the result of sexual intercourse, the appellant

had to explain as to with whom he had a sexual intercourse.

Normal sexual intercourse with a consenting partner would not

have resulted in the injuries to the male sex organ of the

appellant and the two injuries establish forced sex.

15. Not disputing the recovery of the half-broken piece of

button Ex.P-2 at the spot, learned counsel questions the

recovery of the shirt Ex.P-3 having thereon the other half piece

of the broken button by urging that no independent witness

has been associated with the recovery and hence the same is

doubtful.

16. The plea afore-noted ignores that the seizure memo

pertaining to the shirt Ex.P-3 is witnessed by PW-4 who is an

independent person and not the relation of the victim. That

apart, there is no question of the shirt Ex.P-3 being planted for

the reason a half-broken button on the same proved to be the

other half of the half-broken button Ex.P-1 found at the spot

where the dead body was found, establishes that he who was

wearing the shirt was present at the spot where the half-

broken button Ex.P-1 was found and thus the police could not

have planted the shirt for the reason before something can be

planted, it must be in the possession of he who recovers the

same.

17. The aforesaid recovery is sufficient evidence where from

any reasonable person can state with confidence that it

establishes the presence of the appellant at the spot where

the young girl was ravished and murdered as also the fact that

the button broke when the victim offered resistance.

18. Evidence establishes that the appellant led PW-3 and PW-

4 to the place where the dead body was recovered. The

explanation of the appellant that he learnt about the spot

when somebody gave to him the plan Ex.PW-4/A is a ruse. We

note that when examined under Section 313 Cr.P.C. the

appellant denied having handed over the plan. But, the

testimony of PW-3 and PW-4 establishes that the appellant led

them to the spot where the dead body was found. Thus, there

is evidence of the fact that the appellant had knowledge of the

spot where the dead body was lying. How did he gain

knowledge of the spot is a fact within his special knowledge

and he having not explained the same, an adverse inference

needs to be drawn against the appellant.

19. Excluding the extra-judicial confession made by the

appellant to PW-3, the aforesaid three pieces of evidence are

sufficient where from the guilt of the appellant can be inferred

and his innocence ruled out.

20. The order of conviction is legal and valid and so are the

sentences imposed.

21. The appeal is dismissed.

22. The appellant is in jail. Copy of this order be sent to

Superintendent, Central Jail, Tihar for being supplied to the

appellant.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

DECEMBER 11, 2009 Dharmender