Kamal Kumar vs State
2009 Latest Caselaw 490 Del

*                      IN THE HIGH COURT OF DELHI

                      Judgment reserved on : February 02, 2009

%                     Judgment delivered on : Feburary 11, 2009

+                                 CRL.A.826/2006

       KAMAL KUMAR                                ..... Appellant
               Through:           Mr.Rajiv Thukral, Advocate.

                                  versus

       STATE                                       ..... Respondent
                       Through:   Mr.Pawan Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

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

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.

1. The instant appeal challenges the judgment and

order dated 18.08.06 and the order dated 19.08.2006 passed by

the learned Additional Sessions Judge, New Delhi, in Sessions

Case No.62/2002 arising out of FIR No.119/2002 registered at

Police Station, Ambedkar Nagar. By virtue of the impugned

judgment and order, the learned Trial Judge has held the

appellant guilty of committing offences punishable under

Sections 354/363/302 IPC and sentenced him to undergo

imprisonment for life and pay a fine of Rs.2000/-, in default to

undergo SI for 2 months for offence punishable under Section

302 IPC; RI for two years and pay a fine of Rs.1,000/-, in default

to undergo SI for 1 month for offence punishable under Section

363 IPC; RI for one year and pay a fine of Rs.500/-, in default to

undergo SI for 1 month for offence punishable under Section 354

IPC and has further directed that all the sentences awarded to

the appellant shall run concurrently.

2. A synoptical resume of the prosecution case is that

the police swung into action when pursuant to a wireless

information DD No.80B, Ex.PW-11/A, was recorded by Const. Siri

Kishan PW-11, at 12.36 A.M. on 19.03.2002 at Police Station

Ambedkar Nagar to the effect that a resident of F-200, Dakshin

Puri has informed that a girl named Vaishali daughter of Brijesh

was missing since morning. ASI Shamsher Singh PW-15, was

handed over a copy of the DD Entry. Accompanied by Const.

Jagat Singh PW-10, he reached the place from where said

information was sent i.e.F-200, Dakshin Puri, where they learnt

that Brijesh had gone searching for his daughter Vaishali. At

around 3-3.15 A.M. on 19.03.02 ASI Shamsher Singh PW-15

recorded the statement Ex.PW-3/A of Brijesh, and made an

endorsement Ex.PW-15/B thereon and forwarded the same at

3.30 A.M. through Const. Jagat Singh PW-10 to the police station

for registration of a FIR. HC Umed Singh PW-8, registered the

FIR, being No.119/02 under Section 363 IPC, Ex.PW-8/A.

Thereafter the matter was handed over to SI Balraj Singh PW-17,

for further investigation.

3. In his statement Ex.PW-3/A, Brijesh stated that he is a

resident of F-200, Dakshin Puri and is a driver by occupation.

That yesterday i.e.18.03.02 since 9.30 P.M., his daughter

Vaishali aged about 8 years who was wearing cream colored

shirt and yellow and black colored skirt is missing. That some

people from the neighbourhood as also his sister-in-law Anita

had told him that Vaishali was last seen sitting in the lap of

Kamal i.e. the appellant. That he is fully confident that Kamal

and his associate Vicky had kidnapped his daughter.

4. Since Brijesh PW-3, had told the police that baby

Vaishali was last seen in the company of the appellant, the

needle of suspicion pointed towards the appellant. The police

went about searching for him and apprehended him on 19.03.02

at about 8.00 A.M.

5. On being arrested and interrogated the appellant

made a statement, Ex.PW-2/A, admitting his guilt and disclosed

that on 18.03.02 at around 9.30 P.M. he had taken baby Vaishali

on the pretext of giving ice-cream to her to the nearby jungle

where he tried to commit sexual intercourse with her and had

killed her by banging a piece of stone on her head when she had

tried to resist him and stated that he could get recovered the

dead body of baby Vaishali.

6. Since the appellant had made a disclosure statement

and volunteered to get recovered the dead body of baby

Vaishali, SI Balraj Singh PW-17, accompanied by ASI Shamsher

Singh PW-15 and Const. Jagat Singh PW-10, also accompanied

by Brijesh PW-3 and Joseph PW-2 went along with the appellant

to the place wherefrom appellant stated that he could get

recovered the dead body. The appellant led the team to

Jahanpanah jungle and vide pointing out memo, Ex.PW-2/B,

pointed out the place where the dead body of baby Vaishali was

lying. The body was recovered.

7. SI Kunwar Sahib Singh PW-13, as also Const. Giri Raj

PW-14, from the crime team were summoned to the spot where

the dead body of baby Vaishali was lying. 37 photographs,

Ex.PY/1 to Ex.PY/37; (negatives whereof are Ex.PX/1 to Ex.PX/37)

were taken. SI Balraj Singh PW-17, prepared the site plan Ex.PW-

17/A; recording therein the place at point 'A' where the dead

body of baby Vaishali was found lying. Blood sample earth,

sample earth control, one blood stained stone and a pair of

slippers lying at the spot were lifted and seized vide memo

Ex.PW-2/C. The pant of the appellant which he was wearing at

that time was seized vide memo Ex.PW-2/E. Thereafter ASI Chet

Ram (Fingerprint expert) PW-16, was called and he lifted the

chance fingerprints from the dead body and blood stained stone

seized from the spot, but could not develop any print.

8. The body of baby Vaishali was sent to mortuary of

AIIMS, where Dr.Sanjeev Lalwani PW-1, conducted the post-

mortem on 19.03.2002 and gave his report, Ex.PW-1/A recording

the following injuries on the body of the young girl:-

"1. Froth at mouth and nostril.

2. Rigour mortis seen all over the body.

3. Hair of scalp were blood stained.

4. Post mortem staining was seen on back and dependent parts except pressure areas.

5. Blood stains were seen on right knee. Dorson of right hand, mouth, nostril, left side face, right neck, right shoulder and right upper arm.

6. Eyes and mouth were partially open, nails were blue. No signs of decomposition. Greenish material (Gulal) sticked on right and left leg anteriorily, laterally and medially, both sides of neck, right shoulder and left forearm injuries.

a. Linear abrasions on right leg, lower part medially 5 cms in length and reddish brown colour.

b. Linear abrasion medial border of right scapula 5 cms in length dried reddish brown in colour.

c. Contused abrasion 1 x 1 cms on left side forehead reddish brown in colour.

d. Multiple concrete small confused abrasions in an area of £ x 3 cms lateral to left eye brow over left temple reddish brown in colour.

e. Multiple concrete small contused abrasion on tip of nose 1 x .5 cms and on left cheek in an area of 9 x 5 cms reddish brown in colour.

f. Bluish colour contusion in left perorbital region with swelling and underlying extra vasation of blood.

g. Linear abrasion 1.5 cms on right leg lower part near ankle reddish brown in colour.

h. Linear abrasion on left leg .5 cms posteriorily in lower part.

i. Multiple concrete small abrasion on right and left knee cap.

j. Multiple concrete small abrasion on left leg lower part anterolaterally.

k. Bluish colour contusion 4 x 2.5 cms on right leg upper one third anteromedially with underlying extra vasation of blood.

l. Contusion bluish coloured 1 x 0.5 cms on left leg lower one third, anteromedially with underlying extra vacation of blood.

m. Abrasion 1 x 0.5 cms medial border of left scapula reddish brown in colour.

n. Lacerated wound 1.5 x 1 cms on right parieto occipital region 8.5 cms posterior superior to right ear pinna bone deep with bleeding on dissection underlying sub-scalp extra vasation of blood was present. Scull shows depressed fracture 4.3 cms in right parital bone with fissured fracture at right paritotamporal region, extending to right side occipital bone, right frontal bone right temporal bone and floor of middle cranial fossa on right side. Linear fissure fracture in mid line of occipital bone upto foreamen magnum underlying brain congested, oedematous with defused subdural haematoma prominent on right parito temporal region and on inferior aspect on right side. The cut section shows few petechial intracerebral haemorrhage on right side cerebrum."

9. He recorded presence of blood stains in upper part

inner side of right labia with congestion of fourchette in labia.

The hymen was found intact. He opined that the child died due

to coma resulting from the head injuries which could be caused

by blunt force and were sufficient to cause death in the ordinary

course. He opined that the possibility to commit sexual

intercourse could not be ruled out.

10. The clothes of the young girl, vaginal swabs and a

gauze containing the blood of the young girl were handed over

to the police vide memo Ex.PW-9/A.

11. On 20.03.2002 at around 2 P.M. Const. Rakesh PW-

12, took the appellant to the AIIMS, where Dr.Chittaranjan

Behera PW-6, conducted his medical examination. The MLC of

the appellant, Ex.PW-6/A, dated 20.03.2002, records that no

fresh external injury was found on the person of the appellant;

smegma was absent and that there is nothing to suggest that

the appellant was not capable of performing sexual act. The

blood sample of the appellant was handed over to the police

which was seized vide seizure memo Ex.PW-12/A.

12. On 26.03.2002 the investigation of the case was

entrusted to Inspector Jagdish Yadav PW-18, who at the relevant

time was posted as Additional SHO at Police Station Ambedkar

Nagar. PW-18 got prepared the scaled site plan of the place of

the recovery of dead body, being Ex.PW-5/A, from SI Mahesh

Kumar PW-5, and sent the seized materials to the Forensic

Science Laboratory for scientific examination. Vide FSL reports

Ex.PX and Ex.PY it was opined that human blood of group 'B'

was detected on skirt and top of the deceased which she was

wearing at the time of the commission of the offence; human

blood was detected on stone piece and blood sample earth

seized from the spot; human blood was detected on the pant of

the appellant (group thereof could not be ascertained) which

was seized at the time when he pointed out the dead body of

baby Vaishali; semen could not be detected on the vaginal swab

of the deceased.

13. Needless to state, the appellant was sent for trial.

Charges were framed against the appellant for having

committed offences punishable under Section 363/376/302 IPC.

14. At the trial, apart from examining the police officers

associated with the registration of the FIR and the investigation

as also the doctor who recorded the MLC of the appellant and

the doctor who conducted the post-mortem of the deceased;

Joseph, uncle of the deceased was examined as PW-2. Brijesh,

father of the deceased was examined as PW-3; Anita, aunt of

the deceased was examined as PW-4. Sunita, mother of the

deceased was examined as PW-5.

15. Joseph PW-2, the brother-in-law of the father of the

deceased deposed that Vaishali was missing from her house on

18.3.2002. Everybody searched for her but could not be traced.

That Anita had informed having seen Vaishali with the appellant

at around 9.30 PM. He deposed that the appellant was

apprehended in his presence and his disclosure statement

Ex.PW-2/A was recorded by the police in which he admitted

having killed Vaishali. He took the police to Jahanpanah forest

and pointed out the spot where his niece was killed. That the

police seized a stone stained with blood, earth control, blood-

stained earth and a pair of chappals from the spot vide seizure

memo Ex.PW-2/C. The dead body of Vaishali was seized as per

seizure memo Ex.PW-2/D. That the pant of the appellant was

seized as recorded in seizure memo Ex.PW-2/E. He was cross-

examined and in cross-examination stated that Brijesh

contacted him at around 10.15 PM to search for Vaishali. He

joined Brijesh to search Vaishali and went to the house of his

sister Anita PW-4 hoping that she could give some information

and that Anita told them that she had seen the appellant with

Vaishali. That thereafter they reached the house of the

appellant around 12.30 midnight but he was not present. That

thereafter the police was informed of baby Vaishali being

untraceable.

16. Brijesh PW-3, father of the deceased deposed that his

daughter was missing after around 9.30 PM and when they were

searching for her Anita told him that his daughter was seen by

her with the appellant at about 9.30 PM. He deposed of having

informed the police and his statement Ex.PW-3/A being

recorded. He deposed the facts as deposed to by Joseph

pertaining to the apprehension of the appellant and his making

a disclosure statement and recovery of the dead body of his

daughter. In cross-examination he stated that when Anita told

him that she had seen his daughter in the lap of the appellant

everybody went to the house of the appellant who was not

present in his house and that he was apprehended by the police

after a few hours.

17. Anita PW-4, the sister-in-law of the father of the

deceased, deposed that on 18.03.2002 at about 9.30 P.M. she

had seen the deceased in the lap of the appellant in the outskirt

of the street when she had gone out for a walk with her family.

On being cross-examined she stated that around 12 midnight

when she learnt that father of Vaishali was searching for her she

disclosed said fact to Vaishali's father.

18. Sunita PW-7, the mother of the deceased, deposed

that her daughter had gone out to play in the street while she

was wearing chappals and did not come back.

19. In his statement recorded under Section 313 Cr.P.C.

the appellant denied everything. He stated that the police had

arrested him from his house in the evening of 19.03.2002 at

around 5.00 P.M. and therefore, there was no question of

leading the police to the place from where the dead body of the

deceased was recovered at his instance.

20. As already noted herein above, holding that the

prosecution has been able to establish the chain of

circumstances which inevitably connect the appellant to the

crime of kidnapping the deceased, attempting to outrage her

modesty and murdering her, the learned Trial Judge has

convicted the appellant of committing offences punishable

under Sections 363/354/302 IPC. Insofar as the defence of the

appellant predicated upon the time of his arrest by the police is

concerned, learned Trial Judge has held that the testimonies of

Brijesh PW-3 and Joseph PW-2, various memos prepared by the

police, recordings in the post-mortem report of the deceased

Ex.PW-1/A to the effect that inquest papers were received on

19.03.2002 at 2.45 P.M. and that autopsy on the dead body of

the deceased was conducted on 19.03.2002 at 3.15 P.M. and the

fact that no witness was examined by the appellant to establish

that the police had arrested him from his house at around 5.00

P.M. on 19.03.2002 corroborate the version of the prosecution

that the appellant was arrested in the morning hours of

19.03.2002 and that the dead body of the deceased was

recovered at his instance. However, holding that the prosecution

has not been able to establish beyond reasonable doubt that the

appellant had raped the deceased before murdering her, the

learned Trial Judge acquitted him of the charge of having

committed an offence punishable under Section 376 IPC.

21. From a perusal of the decision the circumstances

held established by the prosecution, evidencing the guilt of the

accused and other attendant circumstances of the case pointing

towards the guilt of the appellant can be enumerated as under:-

I The deceased was last seen in the company of the

appellant at around 9.30 PM on 18.03.2002.

II The deceased went missing since 9.30 PM on

18.03.2002.

III The appellant was not present in his house or

otherwise traceable when the family members of the

deceased as also people from the neighborhood were

looking for him to know the whereabouts of the

deceased.

IV The appellant made a disclosure statement admitting

his guilt in the presence of Brijesh PW-3 and Joseph

PW-2.

V The dead body of the deceased was recovered at the

instance of the appellant in the presence of Brijesh

PW-3 and Joseph PW-2.

VI The appellant admitted to have killed the deceased

by banging a piece of stone on her head and human

blood was detected on a piece of stone found lying at

the place of recovery of the dead body.

VI Human blood was detected on the pant of the

appellant which he was wearing at the time of the

recovery of the dead body.

VII No witness was examined by the appellant in support

of his defence that the police had arrested him from

his house in the evening of 19.03.2002 or to prove

his presence at some other place at the time when

prosecution claimed to have recovered the dead

body of the deceased at his instance.

22. At the hearing of the appeal, under-noted 5

submissions were advanced by the learned counsel for the

appellant to break the chain of evidence as found established by

the learned Trial Judge:-

A First submission was that there is a material variation

regarding the time of disappearance of the deceased

between the initial version stated by Brijesh PW-3,

father of the deceased, based whereon DD Entry

No.80-B Ex.PW-11/A was recorded by the police and

the subsequent versions stated by him at various

stages.

B As a limb to the first submission, the counsel next

urged that there is an apparent contradiction

between the initial version stated by Brijesh PW-3,

father of the deceased, based whereon DD Entry

No.80-B Ex.PW-11/A was recorded by the police and

the evidence adduced by the prosecution.

C Third submission urged was that the learned Trial

Judge while appreciating the ocular evidence led by

the prosecution did not attach due importance to the

fact that all the witnesses examined by the

prosecution to prove circumstances connecting the

appellant with the commission of the offence,

namely, time of missing of the deceased, the

deceased last seen in the company of the appellant,

the alleged confession of the crime by the appellant

and discovery of dead body of the deceased at the

instance of the appellant were 'interested' witnesses.

D Fourth submission urged was that the fact that the

appellant is not visible in even a single photograph

out of 37 photographs taken by the police at the

time when allegedly dead body of the deceased was

recovered at his instance strongly probablizes the

defence of the appellant that the dead body was not

recovered at his instance and that he was arrested

by the police only after the recovery of the dead

body.

E Last submission urged was that the photographs

Exhibits PY/1 to PY/37 taken by the police evidence

that big rocks were lying on the ground from where

the dead body of the deceased was recovered

therefore the appellant ought to have sustained

some injury if he had committed or attempted to

commit forcible sexual act with the deceased at the

said area whereas the MLC of the appellant Ex.PW-

6/A records that no external injury was found on the

person of the appellant.

23. With respect to the first submission, the learned

counsel for the appellant drew attention of this Court to the

depositions of Brijesh PW-3, and Joseph PW-2 to the effect that

Brijesh PW-3, had given initial information to the police on

19.03.2002 at around 12.30 A.M. about the disappearance of the

deceased as also to the DD Entry No.80B Ex.PW-11/A wherein it

is recorded that an information has been received that the

deceased is missing since morning of 18.03.2002. The learned

counsel further submitted that the depositions of the said two

witnesses prove that the DD Entry No.80B Ex.PW-11/A was

recorded on the basis of the information given by Brijesh PW-3.

The learned counsel sought to impress upon this court that the

fact that Brijesh PW-3, father of the deceased, had initially

stated that the deceased was missing since morning hours of

18.03.2002 and that he had changed his subsequent versions

namely statement given to the police under Section 161 Cr.P.C.

Ex.PW-3/A and testimony before the court to state that the

deceased was missing since 9.30 P.M. on 18.03.2002 strongly

probablizes that the said change was incorporated by PW-3 to

bring his version in line with the account of Anita PW-4, that she

had seen the deceased in the company of the appellant at 9.30

PM on 18.03.2002 and therefore, the appellant was falsely

implicated by the family of the deceased.

24. The second submission advanced by the learned

counsel was also predicated upon a recording contained in the

DD Entry No.80B Ex.PW-11/A to the effect that the deceased

was wearing shoes at the time of her disappearance. The

counsel argued that the fact that a pair of slippers was

recovered from the place of recovery of the dead body of the

deceased which were attributed to the deceased establishes

that Brijesh PW-3, was not a truthful witness and that the

appellant was falsely implicated by him and his family members.

25. In dealing with the afore-noted two submissions, it

would be most relevant to note the cross-examination of Brijesh

PW-3. In his cross-examination, neither any suggestion was

given to PW-3 that he had initially stated to the police that the

deceased is missing since morning and that she was wearing

shoes at the time of her disappearance nor any question

pertaining to recording of said statements in DD Entry 80B

Ex.PW-11/A was put to the said witness. Had he been cross-

examined, we would have had the benefit of his explanation on

said discrepancies. However, we are of the opinion that the

same are not fatal. The reason is obvious, Brijesh is a driver and

as deposed by him used to leave the house early morning. The

same would have happened on the unfortunate day i.e.

18.3.2002 and therefore he may have told the police that his

daughter was wearing shoes when she left the house and that

she had left the house in the morning. His disturbed mental

condition at 12.30 PM when his young daughter could not be

located has to be kept in mind. It is quite possible that on

returning home from work PW-3 Brijesh was informed by his wife

that their daughter is missing and he just assumed that their

daughter did not return to the home from the school and is

missing since morning and must be wearing shoes at the time of

her disappearance as she had disappeared while going or

coming back from school and on basis of said assumption he

informed the police without ascertaining correct/complete facts

regarding disappearance of their daughter from his wife. It is

equally possible that mother of the deceased being in a

perplexed state because of disappearance of her daughter was

not able to narrate complete/correct facts pertaining to the

disappearance of the deceased to her husband.

26. Be that as it may, it is settled law that mere congruity

or consistency is not the sole test of truth of the depositions.

Discrepancy has to be distinguished from contradiction.

Whereas contradiction in the statement of the witness is fatal for

the case, minor discrepancy or variance in evidence will not

make the prosecution's case doubtful. (See the decision of the

Hon'ble Supreme Court reported as State of Himachal Pradesh v

Lekh Raj & Anr 1999 (9) Supreme Today 155).

27. With reference to the third submission advanced by

the learned counsel for the appellant that the material witnesses

of the prosecution were 'interested' witnesses it would be

apposite to note the following dictum of law laid down by the

Hon'ble Supreme Court in the decision reported as State of

Rajasthan v Smt. Kalki & Anr (1981) 2 SCC 752.

"As mentioned above the High Court has declined to rely on the evidence of P.W.1 on two grounds : (1) she was a "highly interested" witness because "she is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one is the possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents." (Emphasis supplied)

28. It is relevant to note that the witnesses have

supported each other in material particulars. It is further

relevant to note that the said witnesses were cross-examined at

length but nothing tangible could be extracted to create a

shadow of doubt on their respective testimonies. No motive has

been imputed by the appellant on the said witnesses for falsely

implicating him.

29. In such circumstances, particularly in the view of the

law laid down by the Hon'ble Supreme Court in Kalki's case

(supra), mere relationship with the deceased cannot be a

ground for discarding the testimonies of the said witnesses.

30. With reference to the fourth submission advanced by

the learned counsel for the appellant regarding the non-visibility

of the accused in the photographs taken by the police at the

time of recovery of the dead body of the deceased, suffice

would it be to state that the perusal of the said 37 photographs

shows that the same have been taken with a view to capture

the positioning of the dead body and the surroundings of the

area and not to ascertain the presence of the people present at

the said time. Invariably, photographs of certain police officials

who were conducting the investigation have also appeared. The

fact that there is no photograph of any public witness or that of

the appellant do not create a dent in the version of the

prosecution that the dead body of the deceased was recovered

at the instance of the appellant when otherwise the evidence

led by the prosecution particularly the testimonies of Brijesh

PW-3 and Joseph PW-2 and other circumstances of the case

enumerated herein above point towards the said fact.

31. Insofar as the last submission of the learned counsel

is concerned that had the appellant committed or attempted to

commit forcible sexual act with the deceased at the area where

her dead body was recovered then in such situation he ought to

have sustained some injury whereas no external injury was

noted on his person as per his medical examination begs the

question whether the appellant had committed or attempted to

commit forcible sexual act with the deceased at the place where

her dead body was found. It is quite possible that the appellant

had committed or attempted to commit forcible sexual act with

the deceased at some other place and had subsequently

brought the deceased to the place of the recovery of the dead

body for the purposes of only killing her as big rocks were

present at the said place which could have facilitated the

appellant in killing her.

32. We note that the appellant has not examined any

family member to prove that he was picked up from the house

at 5.00 PM on 19.3.2002. The appellant has not explained as to

how blood of human origin came on his pant. We note that

smegma was absent on the sex organ of the appellant. We note

that as per the post-mortem report the possibility of an attempt

to commit rape cannot be ruled out. We note that the

prosecution has established that the appellant was absconding

from his house till late night and in fact was apprehended at

around 8.00 AM in the morning of 19.3.2002. He has not

explained as to under what circumstances he was not in his

house in the night; he was expected to be in his house in the

night. We find that Anita has established that the appellant was

last seen by her with the deceased in his lap at around 9.30 PM.

We note that Anita had disclosed said fact to the father of the

deceased when the crime had not even been detected. We find

that Anita has no motive to falsely implicate the appellant.

33. We find no merits in the appeal. The appeal is

dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE February 11, 2009 Dharmender