Chiranji Lal vs State
2009 Latest Caselaw 2893 Del

*                      IN THE HIGH COURT OF DELHI

%                               Date of Decision : 29.07.2009

+                       CRL. APPEAL No.307/2007

      CHIRANJI LAL                       ...Appellant
                Through : Mr.Sudhakar Singh, Advocate for
                          Ms.Rakhi Dubey, Advocate.

                                versus

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


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

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

2. To be referred to the Reporter or not?                  Yes

3. Whether judgment should be reported in Digest?           Yes


: PRADEEP NANDRAJOG, J. (Oral)

1. The judgment and order under challenge is dated

14.9.2006. The appellant has been convicted for the offence

punishable under Section 364-A IPC; the offence punishable

under Section 376 IPC and the offence punishable under

Section 302 IPC.

2. The unfortunate victim of the crime is a young girl

named Manju aged 9 years.

3. With reference to the testimony of PW-1 and PW-2

the learned Trial Judge has held that it stands established that

ransom in sum of Rs.50,000/- was demanded over the

telephone to release Manju under threat of physical harm to

her. With reference to the testimony of Manish Gaur PW-6 the

learned Trial Judge has held that it stands proved that on

25.11.2001 the appellant and the deceased had stayed in an

inn at Jodhpur. With reference to the testimony of Gafur Khan

PW-10, ASI Swarup Singh PW-11 and Inspector Narayan Singh

PW-15 the learned Trial Judge has held that it stands

established that the dead body of Manju was for the first time

noted and hence recovered on 30.11.2001 from a spot near

the railway line within the jurisdiction of PS Pokharan, District

Jaisalmer, Rajasthan and that footprints were lifted in a mould

as recorded in the memo Ex.PW-11/C, which footprints, with

reference to the imprints of the sole tallied with the sole of the

slippers worn by the appellant when he was arrested near

Pokharan Railway Station on 5.12.2001. With reference to the

post-mortem report Ex.PW-14/A and the testimony of

Dr.S.L.Jangin, the learned Trial Judge has held that it stands

established that Manju was raped before she died. The

learned Trial Judge has also referred to the report Ex.PW-20/E

of the Forensic Science Laboratory as per which the vaginal

cervical swab of the deceased taken by PW-14 showed

presence of human semen.

4. Manju aged 9 years could not be found by her

parents on 23.11.2001 till late evening. Her father Sita Ram

PW-2 went to the police station and lodged a missing persons

report as per DD No.18A, Ex.PW-8/A.

5. Wireless message was flashed to inform all missing

persons' squads about Manju being missing.

6. The father of Manju suspected that the appellant

had kidnapped Manju, for the reason, the appellant was

related to Manju's father; being the son of his paternal uncle,

and was missing from his house since 23.11.2001. Manju's

father went to the police station and his statement Ex.PW-2/E

noting said fact was recorded by SI Ajit Malik and pursuant

thereto the FIR Ex.PW-5/A was registered for an offence

punishable under Section 363 IPC. The appellant was named

as a suspect.

7. No headway could be made by the police at Delhi.

A telephone was received on 2.12.2001 at telephone

No.2174122 by Madan Lal PW-1 who was told to convey to Sita

Ram, the father of Manju, that Manju was in the custody of the

caller and that he would hear from the caller what next to do.

Madan Lal informed said fact to Sita Ram. Another call was

received at the said number and Madan Lal handed over the

phone to Sita Ram. The caller demanded Rs.50,000/- to

release Manju and threatened that Manju would be harmed if

the money was not paid. Immediately, Sita Ram informed said

fact to the police which was noted vide DD No.11-B, Ex.PW-

20/B.

8. Another call was received informing that the

ransom should be paid near Pokharan Railway Station District

Jaisalmer on 5.12.2001.

9. A raiding party consisting of Inspector Abhirup

Banerjee PW-20, SI Kailash Chand PW-19, Const.Vinod PW-16,

HC Ramesh PW-18 and Const.Babu Lal (not examined) was

constituted. Accompanied by the father of the girl i.e. Sita

Ram and Madan Lal PW-1 they all left for Pokharan in the night

of 3.12.2001 and reached Pokharan the next day.

10. As these events were unfolding in Delhi, unknown

to the parents of Manju and the police at Delhi, certain events

were unfolding in Pokharan and they related to Manju.

11. Gafur Khan PW-10, deployed as a key man to check

railway lines at Pokharan, saw the dead body of a young girl at

around 12:00 noon on 30.11.2001. He passed on the

information to Ugam Singh PW-4, who in turn informed the

local police. ASI Swarup Singh PW-11 received the information

from Ugam SIngh and before proceeding to the spot where the

dead body was seen informed Inspector Narayan Singh PW-15.

Both the police officers reached the spot and saw the dead

body of a young girl wearing coffee coloured printed frock and

a yellow pullover. They noted footprints on the loose wet soil

leading upto the dead body. They summoned a photographer

who took photographs of the deceased as also the footprints

on the loose wet soil. Using plaster of paris, the police officers

lifted the mould of the footprints. The dead body was seized

and sent for autopsy. A board consisting of Dr.U.S.Sodha,

Dr.R.P.Bissa and Dr.S.N.Jangin was constituted for the post-

mortem which was conducted on 1.12.2001. They noted

ligature marks around the neck. Hyoid bone was fractured.

Hymen was absent. Multiple tear injuries on the vagina were

noted. It was opined that the young girl, who was then

unidentified, was raped before she was murdered. Cause of

death was opined to be asphyxia due to strangulation. The

horrifying death of the young girl received extensive media

coverage in the local newspapers published and printed in

District Jaisalmer, but nobody came forward to give any clues

to the local police at Pokharan.

12. Needless to state, an FIR Ex.PW-15/A, for the

offence of rape and murder was registered at the local police

station in Pokharan. At the spot where the dead body of the

unfortunate young girl was found, conducting spot

proceedings, the rough site plan Ex.PW-15/C was prepared by

Inspector Narayan Singh recording the spot where the dead

body was found near a railway line and the spot where the

footprints were seen on loose moist soil. The seizure of the

dead body of the young girl was recorded in the seizure memo

Ex.PW-4/B.

13. The date 5.12.2001 arrived, being the date notified

by the caller for ransom to be delivered near railway station at

Pokharan. The raiding party consisting of the police officers

names whereof have been noted in para 9 above concealed

themselves. Sita Ram the father of the girl carried a bag in his

hand containing fake money. The time was around 10:30 AM.

Sita Ram saw the appellant approaching him. He gave the

pre-agreed signal to the raiding party to spring out from their

hiding places. The police personnel pounced upon the

appellant and apprehended him at the spot. They interrogated

him. Inspector Abhirup Banerjee recorded the statement

Ex.PW-1/A made by the appellant as per which he confessed to

the crime of having kidnapped Manju as also demanded

ransom for her release. He admitted having raped Manju and

thereafter having murdered her, stating that he could not have

left Manju alive for had she survived as an eye-witness his fate

was sealed. He disclosed in his statement that he could take

the police officers to the place where he had thrown the body

of Manju. The appellant also disclosed that he and Manju had

stayed at an inn in Jodhpur and that he can show the inn to the

police officers.

14. Since the police personnel from Delhi expected to

recover the dead body of Manju from the place where they

would have been led by the appellant, before proceeding for

the spot they gave information at the local police station

requiring assistance from the local police. Thus, the police

team from Delhi proceeded independently to the undisclosed

destination where the appellant would have led them to and

simultaneously ASI Swarup Singh PW-11 left the police station

on being informed of the presence of the team of police

officers from Delhi to reach railway station Pokharan. The

appellant led the police personnel to the same spot from

where the body of Manju was seized by the local police at

Pokharan on 30.11.2001 as recorded in the pointing out memo

Ex.PW-1/D.

15. In the meanwhile, Inspector Narayan Singh PW-15,

the SHO of PS Pokharan also reached the spot. He produced

the photographs of the dead girl which were taken at the same

spot on 30.11.2001 being Ex.PW-3/A1 to Ex.PW-3/A6 and

Ex.PW-20/1 to Ex.PW20/4, which included the photographs of

the footprints taken from near the spot where the body of

Manju was found. Sita Ram and Madan identified the dead

body of the young female as that of Manju. Inspector Narayan

Singh PW-15 had a hawk's eye. He noticed that the imprint

created on the soil by the sole of the slippers worn by the

accused were similar to the footprints they had seen on

30.11.2001 and in respect whereof mould by using plaster of

paris were lifted. Accordingly, the slippers worn by the

appellant were seized as recorded in the memo Ex.PW-1/C.

16. The appellant was produced before the Area

Magistrate and transit remand was obtained. He was taken to

Jodhpur. He led the police team to 86 Jaswant Sarai near

railway station Jodhpur and stated that he and Manju had

stayed at the said sarai on 25.11.2001. Manish Gaur PW-6, the

nephew of Rajender Gaur, the proprietor of the inn, handed

over a register Ex.P-14 which was seized vide memo Ex.PW-

6/A by Inspector Abhirup Banerjee. His statement was

recorded as per which he informed that he was student of

B.A.Final Year in Jodhpur and the inn belonged to his uncle

Rajender Gaur, in whose absence he used to manage the inn

and that the appellant along with a young girl aged 7 - 8 years

who was calling appellant 'Papa' had stayed in the inn. The

girl was wearing a printed frock and a mustered coloured

pullover. He identified the entry Mark 'A' in the register as

evidencing the stay of the appellant along with the young girl

in the inn and stated that in his presence the appellant had

signed in the register at point 'B' against the entry Mark 'A'.

17. Inspector Abhirup Banerjee seized, as recorded in

the seizure memos Ex.PW-13/G and Ex.PW-19/B, the record of

the inquest proceedings, the entries recorded in the daily

diaries as also the FIR registered at PS Pokharan for the

obvious reason the FIR registered at Pokharan stood

transferred to Delhi since the first offence pertaining to Manju

i.e. kidnapping took place at Delhi.

18. After a few days the FSL report Ex.PW-20/E was

received pertaining to the vaginal cervical swab taken after

post-mortem was conducted on the dead body of Manju as per

which semen was detected on the swab.

19. To cut the long story short, the various police

officers whose names have been noted herein above proved

the respective role played by them as also proved the various

memos prepared from time to time and the seizures effected.

The father of the girl Sita Ram PW-2 and his neighbour Madan

Lal PW-1 stood their ground and proved having received

ransom calls under threat of harm to Manju. The proof of dead

body of Manju being seized from the spot shown in the site

plan Ex.PW-15/B was duly proved through the testimony of

Inspector Narayan Singh PW-15 and ASI Swarup Singh PW-11

who also proved having lifted the footprints from near the

place where the dead body of Manju was seized. The various

officers of Delhi Police proved the apprehension and the formal

arrest of the appellant at near Railway Station Pokharan; his

disclosure statement and the pointing out by him of the place

where the dead body of Manju was seen. Manish Gaur PW-6

deposed and proved that the register Ex.P-14 was maintained

pertaining to the guests who stayed at the inn of his uncle. He

proved the entry Mark 'A' in the register showing that on

25.11.2001 the name of the appellant was shown as a visitor

who had stayed in the inn on 25.11.2001. He proved the

signatures of the appellant at point 'B' against the entry Mark

'A'. He deposed that the appellant was accompanied by a

young girl aged 7 - 8 year who was addressing him as 'Papa'

and was wearing a printed frock and a mustered coloured

pullover. He deposed that the photograph shown to him in

Court i.e. the photograph of Manju was of the same girl whom

he had seen in the company of the appellant and had stayed in

his inn along with the appellant on 25.11.2001.

20. Indeed, it is apparent that the case against the

appellant is fairly watertight. The recovery of the register

Ex.P-14 pursuant to the disclosure statement of the appellant

attracts Section 27 of the Evidence Act. It was not within the

knowledge of the investigating officer that the appellant had

stayed in an inn at Jodhpur. Information pertaining to the stay

at the inn in Jodhpur was given by the appellant. Subsequent

facts proved the truthfulness of the information inasmuch as

the register Ex.P-14 was seized from the inn at Jodhpur on

being handed over by Manish Gaur who also turned out to be a

witness to the appellant and the deceased staying in the inn

on 25.11.2001. The register bears the signature of the

appellant against the entry recording his name and address as

a resident visitor in the inn. The appellant had no business to

take Manju to Jodhpur without the consent and permission of

her parents. It is obvious that the appellant did so without the

consent of the parents of Manju and said fact alone, standing

by itself, establishes that the appellant has committed the

offence of kidnapping Manju. Manju being with the appellant

on 25.11.2001 requires the appellant to establish as to when

he parted company with Manju. There being no explanation

from his side, it is apparent that the logical presumption would

be that the appellant committed two further crimes i.e. raping

Manju and then killing her.

21. There is further evidence of the involvement of the

appellant in the two further crimes. The same is the design of

the sole of the slippers worn by the appellant when he was

apprehended matching the footprints lifted from near the spot

where the body of Manju was recovered.

22. The offence punishable under Section 364A IPC

stands completed on the testimony of PW-1 and PW-2 who

have clearly deposed that ransom calls were received. It is not

a fortuitous circumstance that even before he was arrested,

the appellant was named by the father of Manju as the caller

demanding ransom. The appellant is the cousin of Manju's

father and therefore credence has to be given to the fact that

Manju's father could recognize his voice over telephone.

23. To drive a further nail into the coffin of the

appellant is the fact that he was found missing since

23.11.2001 i.e. the day when Manju went missing. The last

nail in the coffin is the apprehension of the appellant from near

the railway station at Pokharan, the place where the ransom

amount had to be paid. The appellant has rendered no

satisfactory explanation as to what he was doing in Pokharan.

24. To be fair to the appellant we must note the

submissions made by his counsel during hearing of the appeal

in Court today and thereafter deal with the same.

25. With reference to the cross-examination of Gafur

Khan PW-10 it is urged that as per Gafur Khan the dead body

of the girl which he saw near the railway line on 30.11.2001

was naked. Counsel urges that the seizure memo Ex.PW-4/B

prepared after the post-mortem of the girl and when her

personal clothes were handed over by the doctors to PW-15

show the seizure of a frock and a sweater. Thus, counsel

urges that the dead body seen by Gafur Khan and the one

which was sent for post-mortem could not be of the same

person.

26. With passage of time memory fades. Gafur Khan

has appeared in Court on 23.4.2004 i.e. after two years and six

months of his having seen the dead body of the girl. He is

partially correct for the reason the photographs of the dead

body of the young girl show her to be partially nude, in that,

belly down, the body is exposed. The underwear has been

pulled down till the knee. What is important to be noted is

that the photographs of the dead body of the girl show her

wearing a chocolate coloured frock and a mustered coloured

sweater. In this connection the testimony of Manish Gaur PW-

6 is important. He deposes that the girl whom he saw in the

company of appellant was wearing a printed frock and a

mustered coloured sweater.

27. The second submission urged is that the site plan

Ex.PW-15/B shows the head of the dead girl directed towards

the west and the legs towards the east; whereas the memo

Ex.PW-15/F shows the reverse i.e. the head pointing towards

the east and the legs towards the west.

28. The argument needs to be noted and rejected for

the simple reason, it is apparently a case of a writing mistake.

While writing the directions in which the body was lying, the

reverse of the actual has been noted.

29. To constitute the charge of rape it has to be shown

that the accused was capable of sexual intercourse. To

complete the narrative, we note that the appellant was

medically examined and as recorded in the MLC Ex.PW-7/A it

stands conclusively opined that the appellant was capable of

performing sex.

30. We find no merit in the appeal which is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE JULY 29, 2009 Dharmender