Delhi High Court
Sanjay Dass vs State on 27 October, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 24th September, 2009
Judgment Delivered On: 27thOctober, 2009
+ Death Sentence Ref.04/2008
STATE Through: Ms. Richa Kapoor, A.P.P.
AND
SANJAY DASS (CONVICT)
Through: Mr. Sanjeev Sharma, Advocate
CRL.A.464/2009
SANJAY DASS .....Appellant
Through: Mr. Sanjeev Sharma, Advocate
VERSUS
STATE .....Respondent
Through: Ms. Richa Kapoor, A.P.P.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the
Digest? Yes.
PRADEEP NANDRAJOG, J.
1. The above captioned appeal and the death sentence
reference arise out of the judgment and order dated
04.10.2008 and the order on sentence dated 21.10.2008
passed by the learned Additional Sessions Judge in Sessions
Case No.09/2007 arising out of FIR No.295/2006 registered at
PS Roop Nagar. By virtue of the judgment and order dated
4.10.2008, Sanjay Dass has been convicted for offences under
Sections 302/307/376/379 IPC. It may be noted that Sanjay
Dass was charged for an offence punishable under Section 392
IPC but has been convicted for a lesser offence i.e. the offence
punishable under Section 379 IPC. Vide order on sentence, the
learned Additional Sessions Judge has imposed the extreme
penalty of death sentence on Sanjay Dass in respect of the
offence of murder punishable under Section 302 IPC. With
regard to the offence(two) punishable under Section 307 IPC,
he has been sentenced to undergo rigorous imprisonment for
10 years and pay fine in sum of Rs.1,000/- pertaining to the
injuries caused by him to Kumari X and Kumari Y; in default to
undergo SI for 3 months. With regard to the offence punishable
under Section 376 IPC, he has been sentenced to undergo
rigorous imprisonment for 10 years and pay fine in sum of
Rs.1,000/-; in default to undergo SI for 3 months. With regard
to the offence punishable under Section 379 IPC, he has been
sentenced to undergo rigorous imprisonment for 2 years and
pay fine in sum of Rs.500/-; in default to undergo SI for 1
month.
2. It is settled legal position that while dealing with a
reference for confirmation of a death sentence, the High Court
must consider the proceedings in all their aspects, reappraise,
reassess and reconsider the entire facts and law, and if
necessary, after taking additional evidence, come to its own
conclusions on the material on record in regard to the
conviction of the accused (and the sentence) independently of
the view expressed by Sessions Judge. Reference be made to
the decision of Supreme Court reported as State of Tamil Nadu
v Rajendran (1998) 8 SCC 679 wherein it was observed:-
"In performing its duty, the High Court is of necessity
bound to consider the merits of the case itself and has
to examine the entire evidence on record. The
legislature having provided in the confirmation
proceedings, a final safeguard of the life and liberty of
the subject in cases of capital sentences, the duty of
the High Court becomes more onerous to consider
independently the matter carefully and examine all
relevant material evidence and come to a conclusion
one way or the other. It is, therefore, the duty of the
High Court in a death reference to consider the
evidence afresh."
3. Accordingly, with the able assistance of learned Counsel
for the State and Sanjay Dass, hereinafter referred to as the
accused, we perused the entire evidence led at the trial while
hearing the reference and the connected appeal.
4. Criminal law was set into motion when at around 01.05
A.M. on 19.10.2006, an entry was made in the PCR Form
Ex.PW-19/A by HC Jai Kumar PW-19 to the effect that a call has
been received from the mobile number 9811042809 informing
that children have been murdered by the servants at 6/4,
Singh Sabha Road. HC Jai Kumar immediately transmitted the
aforesaid information to Police Station Roop Nagar where HC
Pawan Kumar PW-20, recorded the DD No.3A, Ex.PW-20/A, to
the effect that a wireless information has been received
informing that servants had murdered children at 6/4, Singh
Sabha Road, Roop Nagar.
5. On receiving a copy of the afore-noted DD entry, SI
Dharampal PW-40, accompanied by Const.Tejpal PW-25,
proceeded to the building bearing Municipal No.6/4, Singh
Sabha Road, Roop Nagar, Delhi. Simultaneously, Inspector
Baltej Singh PW-48, who also received the information
recorded in DD No.3A, reached the said building. On reaching
the said building, the aforesaid police officers learnt that three
children of Mr.Ramesh Kumar Aggarwal PW-10 and Nirmal
Aggarwal PW-23, who are residing at the second floor of the
said building, have been injured and removed to Sunder Lal
Jain Hospital. The children who were injured were a boy named
Pratham (herein after referred to as the "Deceased") aged 4
years, a girl named X aged 17 years and a girl named Y aged 9
years. (The real names of the two girls are not being disclosed
as the instant case pertains to the commission of the offence
of rape).
6. Leaving SI Dharampal PW-40, at the place of occurrence,
Inspector Baltej Singh PW-48 and Const.Tejpal PW-25,
proceeded to Sunder Lal Jain Hospital where they learnt that
the deceased has been brought dead at the hospital as
recorded in the MLC Ex.PW-2/C of the deceased. We note that
following was recorded on the MLC Ex.PW-2/C of the
deceased:-
"....Alleged H/o stab injury, incise wound over Lt
submandibular region at house at 12.45 AM on
19/10/06, brought in casualty by his relatives at 1:15
AM on 19/10/06 for medical aid.
L/E incise wound over Lt Submandibular region
.....
Child was declared brought dead....."
7. Inspector Baltej Singh PW-48 and Const.Tejpal PW-25,
further learnt that X and Y have also been admitted in the
hospital in an injured condition as recorded in their MLCs
Ex.PW-2/A and Ex.PW-2/B respectively. We note that following
was recorded on the MLC Ex.PW-2/A of X:-
"Alleged H/o stab injury, incise wound over anterior
aspect of neck and multiple incise wound over back at
home at 12.45 AM on 19/10/06, brought in casualty by
her relatives at 1:15 AM on 19/10/06 for medical aid.
L/E Deep incise wound over anterior aspect of neck
and multiple incise wound over back.
........
Shifted to OT
Admit in ICU"
8. We note that following was recorded on the MLC Ex.PW-
2/B of Y:-
"Alleged H/o stab injury, incise wound over anterior
aspect of submandibular region and Lt side neck Rt
index and middle finger injury at home at 12.45 AM on
19/10/06, brought in casualty by her relatives at 1:15
AM on 19/10/06 for medical aid.
L/E Incise wound over anterior aspect of
submandibular region, Lt side neck and Rt index and
middle finger.
Shifted to OT
Admit in ICU"
9. At the hospital, Inspector Baltej Singh PW-48 and
Const.Tej Pal met Ramesh Kumar Aggarwal PW-10, the father
of the children. Inspector Baltej Singh recorded the statement
Ex.PW-10/A of Ramesh Kumar Aggarwal and made and
endorsement Ex.PW-48/A thereon, and at around 04.00 A.M.
on 19.10.2006 forwarded the same through Const.Tejpal PW-
25, for the purposes of registration of an FIR. Const.Tejpal took
the endorsement Ex.PW-48/A to HC Pawan Kumar PW-20, who
recorded the FIR No.295/06 Ex.PW-2/B at 6.05 A.M. on
19.10.2006. In his statement Ex.PW-10/A Ramesh Kumar
Aggarwal stated that his family consists of his wife Nirmala
Aggarwal, three daughters Nikita Aggarwal, X and Y and his
son Pratham (deceased) and that they reside on the second
floor of the building bearing Municipal No.6/4 Singh Sabha
Road, Ghanta Ghar, Shakti Nagar, Delhi. That he had
employed a domestic servant named Sanjay (accused) on the
recommendation of a driver named Jeetu five days prior to
19.10.2006. The accused used to reside in a room constructed
on the roof of their residence. On 18.05.2006 in the evening he
was watching television along with his wife and children in his
room. At about 10.00 P.M. his three children i.e. X, Y and the
deceased left their room while the accused remained in his
room till 11.15 P.M. The accused was watching television and
pressing his legs till the time he remained in his room. At
about 11.15 P.M. the accused left from their room and he and
his wife went to sleep. At about 12.45 P.M. his daughter X who
was smeared with blood and writhing in pain suddenly came to
his room. After telling him that the accused had hit her, X fell
on the bed and became unconscious. In the meantime Y who
was also smeared with blood came there. She told him that the
accused had hit her and the deceased, upon which he and his
wife rushed to the room of their children where they saw that
the deceased was lying in a pool of blood with a knife stuck in
his neck. On seeing the same he raised an alarm and removed
his three children to Sunder Lal Jain Hospital with the help of
his neighbours and relatives. The deceased was declared as
brought dead at the hospital. The condition of both his
daughters was serious. The accused absconded from his
house. The accused has murdered the deceased and caused
injuries to both his daughters after committing a murderous
attack on them.
10. In the meantime, injured girl X was operated upon at
Sunder Lal Jain Hospital. The report Ex.PW-8/A of X prepared
by Dr.Seema Patni PW-8, the surgeon who operated X records
that she had multiple stab injuries on her chest and that ten
wounds were found on her person. Dr.Seema Patni PW-8,
made an endorsement on the MLC Ex.PW-2/A of X to the effect
that the injuries found on the person of X are dangerous in
nature.
11. Thereafter at about 1.50 A.M. X was examined by
Dr.Rakesh Kumar Gupta. The relevant portion of the case note
Ex.PW-11/C of X prepared by Dr.Rakesh Kumar Gupta reads as
under:-
"....Alleged H/o Assault
Pt has been stabbed at multiple places
1. Tracheal wound - already tube put
2. Left side of chest wall around 47th ICS horizontal 5-
9‟ cm long wound, sucking wound
3. Posterirly - 7-8 multiple wounds 2-3 ling vertically
and horizontally placed
All the wounds bleeding profusely mid line superior
wound has an discharge also....."
12. At about 3.15 P.M. Dr.Uma Rani Swain PW-9, conducted
the gynaecological examination of X. The relevant portion of
the gynaecological examination report Ex.PW-9/A prepared by
Dr.Uma Rani Swain reads as under:-
".....Local pan examination: Whole pubic area with
hair stained with fresh blood, bleeding and oozing
from introital injury.
Internal examination: fresh injury (cut) in the midline
of fourchette bleeding + size 1 cm and 4.5 cm deep,
hymen ruptured with multiple small bruises on it.
Fourchette cut extends upto hymen. No bleeding from
internal pa..."
13. Injured girl Y was also operated upon at Sunder Lal Jain
Hospital. The report Ex.PW-8/C prepared by Dr.Seema Patni
PW-8, the surgeon who operated Y records that multiple
wounds were found on her face and fingers and that a wound
was found on her neck. Thereafter Dr.Seema Patni PW-8, made
an endorsement on the MLC Ex.PW-2/B of Y to the effect that
the injuries found on the person of Y are simple in nature.
14. Injured girl Y was also examined by Dr.Rakesh Kumar
Gupta. The relevant portion of the case note Ex.PW-11/A of Y
prepared by Dr.Rakesh Kumar Gupta reads as under:-
"L/E
Multiple lacerated wound over Ant aspect and lateral
aspect of neck.
L/w over distal phalagx of Rt index, Rt middle and Lt
ring finger
L/w of about 1 cm x 0.5 cm over Rt shoulder."
15. At around 3.45 A.M. Dr.Uma Rani Swain PW-9, conducted
the gynaecological examination of Y. The relevant portion of
the gynaecological examination report Ex.PW-9/B prepared by
Dr.Uma Rani Swain reads as under:-
"Ext genitalia: healthy and normal no obvious
discharge or bleeding. Hymen intact. No sign of
injury...."
16. At about 5.15 A.M. Dr.Neetu made endorsements on the
MLCs Ex.PW-2/A and Ex.PW-2/B of X and Y respectively that
'Pt. is not fit for statement because of tracheotomy.'
17. After collecting the MLCs of the deceased, X and Y,
Inspector Baltej Singh PW-48, proceeded to the place of
occurrence. In the meantime, the crime team also reached the
place of occurrence; on being summoned. At the place of
occurrence, the police officials found that two bed sheets
which were spread on the beds which were lying in the room of
the children were stained with blood and that a foot print was
imprinted on one of the said two bed sheets; a blood stained
pyjama and an underwear were lying on the floor of the
children‟s room; a knife having an iron handle stained with
blood was lying in the children‟s room; a bunch of hair was
lying on the one of the bed lying in the children‟s room; a hair
was lying on the floor of the children‟s room; the floor of the
room of the parents of the children was stained with blood;
bed sheet which was found spread on the bed which was lying
in the room of the parents of the children was stained with
blood; the floor of a bathroom which was situated near the
children‟s room was stained with blood and that a knife was
lying outside the said bathroom. The police lifted the aforesaid
materials and seized the same vide memo Ex.PW-40/A.
18. ASI Manish Kumar Bhardwaj PW-26, Finger Print Expert,
lifted a chance print from a bathroom near the room of the
children and as per the report Ex.PW-26/A the same could not
be developed. HC Rajpal Singh PW-32, photographer, took 11
photos Ex.PW-32/A1 to Ex.PW-32/A11 of the place of
occurrence; negatives whereof are Ex.PW-32/B1 to Ex.PW-
32/B11.
19. SI Ajay Kumar PW-27, Incharge, Mobile Crime Team,
North District, examined the place of occurrence and prepared
the report Ex.PW-27/A, the relevant portion whereof reads as
under:-
"14. Articles examined and lifts SOE - Lot of blood
lying on the floor of the bed room and beds 1 Two
nives - one from bed room floor and other in the
bathroom window. 2 Three bed sheets with blood 3
Hair bunch 4 foot print on rt side bed sheet 5 Blood
sample with hair (floor) 6 earth control 7 one plastic
print (blood) found on the s/w board in bathroom 8
Blood soaked panty with underwear.....
ADVISE TO I/O OF THE CASE
1. ........
2. I.O. is advised to 1 send the D.B. for P.M. 2
Interrogate the parents, neighbours and corporate
3 to locate and interrogate servants 4 Also
interrogate injured ......." (Emphasis Supplied)
20. Inspector Baltej Singh PW-48, prepared the sketches
Ex.PW-48/B and Ex.PW-48/C of the two knives found at the
place of occurrence and the site plan Ex.PW-48/D of the place
of occurrence. Thereafter he prepared the inquest papers
Ex.PW-1/C1 to Ex.PW-1/C11 pertaining to the death of the
deceased. It may be noted here that the brief facts Ex.PW-1/C8
pertaining to the death of the deceased prepared by Inspector
Baltej Singh records that 'One knife has been recovered from
the place of occurrence'. It may be further noted that the
death report Ex.PW-1/C9 of the deceased prepared by
Inspector Baltej Singh records that the weapon used for
committing the death of the deceased was apparently a sharp
object.
21. Since the deceased was brought dead at the hospital, his
body was sent to the mortuary at Aruna Asaf Ali Government
Hospital, Sabzi Mandi, Delhi at 11.30 A.M. on 19.10.2006
where Dr.K.Goyal PW-1, conducted the post-mortem and
prepared the post-mortem report Ex.PW-1/A of the deceased
which records following external injuries on the person of the
deceased:-
"1. Incised punctured wound 1.8 X 0.5 cm
transversally placed over Lt front of neck about 2 cm
left to the midline at the level of just below apple of
Adam. The medial angle of the wound is more acute.
The shape of the wound is more or less spindle
shaped.
2. Two small cuticle deep cuts each 0.4 cm long
and about 1 cm apart each other over just below and
adjacent to middle part of mandible."
22. The doctor further opined that the cause of death of the
deceased is asphyxia consequent upon choking of trachea
(wind pipe) by blood clots as a result of injuries to major
vessels of left side of neck. The injuries were caused by sharp,
cutting, penetrating and straight weapon and that the same
were ante-mortem in nature. Injury no. (1) found on the person
of the deceased was sufficient to cause death in the ordinary
course of nature.
23. After conduct of the post-mortem, the doctor handed
over the clothes, scalp hair and blood sample of the deceased
on a gauze to HC Tejpal PW-33, who in turn handed over the
same to Inspector Baltej Singh PW-48, vide memo Ex.PW-33/A.
24. On the same day i.e. 19.10.2006 injured girls X and Y
were shifted from Sunder Lal Jain Hospital to Apollo Hospital.
Dr.Rakesh Kumar Gupta prepared the discharge summary
Ex.PW-11/B of Y, the relevant portion whereof reads as under:-
".....Lacerated wound Neck, fingers following on arm
Lt
Neck: Multiple lacerated deep wound in the neck
Hand: Multiple cut in different fingers
Lac from Rt shoulder
......
Wounds stitched in layers......."
25. On 19.10.2006 at about 5.15 P.M. X was examined by
Dr.Urvashi Prasad Jha PW-46. Since X was unable to speak as
she had undergone tracheotomy in her throat, she wrote her
statement Ex.PW-46/A and gave the same to the doctor. The
statement Ex.PW-46/A of X reads as under:-
"He tried to molest me. He entered inside me, took off
his clothes. It pained. I tried to fight. This all happened
in the end when he already stabbed me. He hurt all
three of us simultaneously. Firstly he stabbed my
younger sister, then me and then my brother. I don‟t
know his name, my mom must be knowing it. I had
seen him earlier also and I opened the light. He was
working in my house since about 1 week. I don‟t
remember his name. I think its Sanjay. (Emphasis
Supplied)
26. After some time Inspector Baltej Singh PW-48, made an
application Ex.PW-48/F before CMO, Apollo Hospital, for
recording the statement of Y. However, at about 10.45 P.M.,
the doctor opined that Y is not fit for giving a statement. The
doctor made an endorsement on the application Ex.PW-48/F
that 'Patient Y is very anxious and has been anti-xilotius. She
would be not fit for statement'. Likewise, at about 11.00 P.M.,
Dr.Gaurav Singhal PW-3, made an endorsement Ex.PW-3/A on
MLC Mark X of X that 'Pt not fit to talk at present as advised by
Dr.Anoop K Ganjoo'.
27. In the meantime, the police went about looking for the
accused as Ramesh Kumar Aggarwal, the father of the
children, indicted the accused as the person who caused death
of the deceased and inflicted injuries on girls X and Y. In the
early morning of 19.10.2006 the police received information
that the accused is present in Rishikesh pursuant to which
Inspector Vimal Kumar PW-29, accompanied by HC Yogender
PW-28, proceeded to Rishikesh where he arrested the accused
at 6.30 P.M. as recorded in the arrest memo Ex.PW-28/A.
28. On 20.10.2006 the accused was brought to Delhi and
handed over to Inspector Baltej Singh PW-48. On being
interrogated by Inspector Baltej Singh PW-48, in the presence
of SI Rishipal Singh PW-34, the accused made his disclosure
statement Ex.PW-34/A wherein he admitted that he caused the
death of the deceased; committed rape upon X and inflicted
injuries upon the person of X and Y. He further stated that he
had hidden the clothes which he was wearing at the time of
occurrence and that he can get recovered the same. Pursuant
thereto, the accused led Inspector Baltej Singh PW-48, SI
Rishipal PW-34 and SI Ramesh Dixit PW-35, to the place of
occurrence i.e. second floor, 6/4, Singh Sabha Road and got
recovered a pyjama, vest, underwear and handkerchief from
the roof of the room which was built upon the said floor. The
aforesaid clothes were seized vide memo Ex.PW-34/A. It may
be noted here that Prem Prakash Aggarwal PW-17, the brother
of the father of the children, was also present at the time of
the recovery of the said clothes. Inspector Baltej Singh PW-48,
prepared the site plan of the place of recovery of the said
clothes; being Ex.PW-48/I.
29. Thereafter SI Rishipal PW-34, took the accused to Hindu
Rao Hospital where Dr.Rakesh Kumar PW-4, examined the
accused. It may be noted here that MLC Ex.PW-4/A of the
accused records that no fresh external injury was found on any
part of the body of the deceased and that the secondary
sexual characters of the accused are well developed.
30. After conducting the medical examination of the accused,
the doctor handed over the blood sample of the accused on a
gauze to SI Rishipal PW-34, who in turn handed over the same
to Inspector Baltej Singh PW-48, vide memo Ex.PW-34/C.
31. On the same day i.e. 20.10.2006 at about 3.30 P.M. the
accused was examined by Dr.M.K.Panigrahi PW-12, for the
purposes of ascertaining whether he is capable to perform
sexual intercourse. The report Ex.PW-12/A prepared by
Dr.M.K.Panigrahi records that there is nothing to suggest that
the accused is not capable of performing sexual intercourse
and that no smegma was found in the external genitiala of the
accused.
32. On 21.10.2006 Y was discharged from Apollo Hospital. On
the same date Inspector Baltej Singh PW-48, recorded the
statement of Y under Section 161 CrPC. In her statement Y
indicted the accused as the person who caused the death of
the deceased; committed rape upon X and inflicted injuries
upon her and X.
33. On 22.10.2006 SI Rishipal PW-34, accompanied by HC
Sanjay PW-30, again took the accused to Hindu Rao Hospital
where he was examined by Dr.Hari Gupta PW-6. The MLC
Ex.PW-6/A of the accused records that no fresh external injury
was found on the person of the accused.
34. After conducting the medical examination of the accused,
the doctor handed over two vials containing scalp hair and
pubic hair of the accused to SI Rishipal PW-34, who in turn
handed over the same to Inspector Baltej Singh PW-48, vide
memo Ex.PW-30/A.
35. On the same day i.e. 22.10.2006 Inspector Baltej Singh
PW-48, collected pyjama, t-shirt and brassiere worn by X at the
time of her admission at Sunder Lal Jain Hospital, panty worn
by Y at the time of her admission at Sunder Lal Jain Hospital,
vaginal swabs of X and Y, urinal sample of X, blood which
oozed out from vagina of X and pubic hair of X from Sunder Lal
Jain Hospital and seized the same vide memo Ex.PW-9/C.
36. On 23.10.2006 the bed sheet seized from the room of the
children and having a foot print imprinted upon it was sent to
Sudhir Bhalla PW-14, Finger Print Expert, who opined that no
chance print could be developed by him for the reason no
ridges were found on the foot print imprinted upon the bed
sheet in question. He further opined that the said foot print be
got examined by physical and biology division of FSL, Delhi.
Sudhir Bhalla prepared the report Ex.PW-14/A in said regard.
Pursuant thereto, said bed sheet as also other articles which
were seized during investigation were sent to FSL where
Ravinder Kumar Jain PW-15, Finger Print Expert, examined the
foot print in question. Vide his report Ex.PW-15/B Ravinder
Kumar Jain opined that the said foot print is smudged and does
not disclose sufficient number of ridges hence no opinion can
be given regarding the said print.
37. On the same day i.e. 23.10.2006 SI Manohar Lal PW-38,
Draftsman, prepared the site plan to scale Ex.PW-38/A of the
place of occurrence; at the instance of Inspector Baltej Singh
PW-48.
38. On 23.10.2006 at about 8.00 P.M. Dr Gaurav Singh PW-3,
made an endorsement Ex.PW-3/B on the MLC Mark X of X that
'Not fit to talk at present'. On 24.10.2006 at about 12.00 P.M.
Dr.Sudha Kansal PW-7, declared X fit to give a statement as
evident from the endorsement Ex.PW-7/B made by her on the
MLC Mark X of X pursuant to which Inspector Baltej Singh PW-
48, of X under Section 161 Cr.P.C. In her statement X also
indicted the accused as the person who caused the death of
the deceased; committed rape upon her and inflicted injuries
upon her and Y. Additionally, X stated that the accused
removed a diamond ring from her finger at the time when he
was committing rape upon her.
39. On 24.10.2006 S.S. Rana PW-16, Security Supervisor,
Apollo Hospital, handed over the clothes which X and Y were
wearing at the time of their admission in Apollo Hospital and
the blood sample of X on a gauze to Inspector Baltej Singh PW-
48, who seized the same vide memo Ex.PW-16/A.
40. On 26.10.2006 Ramesh Kumar Aggarwal PW-10, the
father of the children, handed over a torn t-shirt and a pyjama
which Y was wearing at the time of the occurrence to Inspector
Baltej Singh PW-48, who seized the same vide memo Ex.PW-
10/B.
41. On 30.10.2006 the accused made another disclosure
statement Ex.PW-35/A wherein he stated that he removed a
ring from the finger of X at the time when he committed rape
upon her and that he hid the same in the pocket of the pyjama
which he was wearing at the time of the occurrence. Pursuant
to the aforesaid disclosure made by the accused, Inspector
Baltej Singh PW-48, made an application Ex.PW-36/A dated
31.10.2006 to the FSL for the return of the parcel containing
the pyjama which was worn by the accused at the time of the
occurrence. It be noted here that the application Ex.PW-36/A
records that 'His clothes were sealed on the spot without
thorough search as there was no information of any type
regarding the said diamond ring at that time. Further more it
was apprehended that too much handling/searching of the
clothes may disturb evidence........ and blood vigilance stains
of procutics and ..... of accused'. Dr.V.K.Goyal PW-36, Director,
FSL allowed the request of the Investigating Officer as evident
from the endorsement Ex.PW-36/B made by him on the
application Ex.PW-36/A.
42. After the return of the parcel in question by FSL,
Inspector Baltej Singh PW-48, checked the pyjama which the
accused was wearing at the time of the occurrence in the
presence of SI Ramesh Dixit PW-35, upon which a diamond
ring was found in the right pocket of the said pyjama. The
aforesaid ring was seized vide memo Ex.PW-35/B.
43. On 04.11.2006 Ajay Goel PW-41, Metropolitan Magistrate,
conducted the Test Identification proceedings of the ring which
was found in the pocket of the pyjama of the accused. X
participated in the said proceedings and identified the ring
found in the pocket of the pyjama as the ring which was
removed by the accused from her finger at the time when he
committed rape upon her. Ajay Goel prepared the record
Ex.PW-41/B of the said Test Identification proceedings.
44. The aforesaid seized materials viz; two bed sheets, an
underwear, a pyjama, a knife, one strand of hair and bunch of
hair seized from the room of the children; bed sheet seized
from the room of the parents of the children; knife recovered
from the bathroom situated near the room of the children;
scalp hair, blood sample and clothes of the deceased; pyjama,
t-shirt and brassiere worn by X at the time of her admission in
Sunder Lal Jain Hospital; underwear worn by Y at the time of
her admission in Sunder Lal Jain Hospital; vaginal swabs of X
and Y; urinal sample and pubic hair of X; blood which oozed
from the vagina of X; pubic hair, scalp hair and the blood
sample of the accused; clothes recovered at the instance of
the appellant; ring found in the pocket of pyjama of the
accused; shirt and pyjama worn by X at the time of her
admission in Apollo Hospital; the blood samples of X and Y;
clothes worn by the deceased at the time of occurrence and t-
shirt and pyjama worn by Y at the time of occurrence were
subjected to forensic evaluation at the FSL.
45. Vide FSL report Ex.PW-37/A, it was opined that blood was
detected on the two bed sheets, underwear, pyjama, knife and
one strand of hair seized from the room of the children; knife
recovered from the bathroom; clothes worn by the deceased at
the time of occurrence; pyjama, t-shirt and brassiere worn by X
at the time of her admission in Sunder Lal Jain Hospital;
underwear worn by Y at the time of her admission in Sunder
Lal Jain Hospital; vaginal swabs of X and Y; t-shirt worn by X at
the time of her admission in Apollo Hospital and t-shirt worn by
Y at the time of occurrence. It was further opined that human
semen was detected on the vaginal swabs of X and Y. That the
bunch of hair and one strand of hair seized from the room of
the children were found to be of human origin and that they
were dissimilar in most of their morphological and
microscopical characteristics from the hairs contained in
exhibit 23 i.e. pubic hair of X and the hair contained in exhibit
24 i.e. the scalp hair of the accused.
46. A close perusal of the FSL report Ex.PW-37/A shows that
38 parcels were sent by the Investigating Officer to FSL. Out of
the said 38 exhibits, 6 exhibits were hairs. Exhibit No.5 was the
bunch of hair seized from the room of the children. Exhibit
No.6b was one strand of hair seized from the room of the
children. Exhibit No.11 was the scalp hair of the deceased.
Exhibit 23 was the pubic hair of X. Exhibit 24 was pubic hair of
the accused. Exhibit No.25 was the scalp hair of the accused.
47. There is a serious anomaly in the FSL report Ex.PW-37/A.
The anomaly is that the FSL report Ex.PW-37/A records that
Exhibit No.5/bunch (few strands) of hair seized from the room
of the children is dissimilar from Exhibit No.24/scalp hair of the
accused. As already noted in para 46 above, exhibit no.24 was
pubic hair of the accused and not scalp hair of the accused as
recorded in the FSL report Ex.PW-37/A. Now the question
which arises is that what was compared with exhibit no.5.
Pubic hair of the accused or scalp hair of the accused?
48. To find the answer to the aforesaid question, we
summoned the record of the FSL pertaining to the present
case. A perusal of the record of the FSL shows that all the hairs
sent to FSL were examined by Anita Chhari PW-37. The results
of the hair examination conducted by Anita Chhari are
contained at pages 56-62 of the record of the FSL. After
conducting the said examinations, following conclusions were
arrived at by Anita Chhari, which are recorded at page 61 of
the record of the FSL:-
"i. Exhibit 5 (scalp hair) different from hair in
exhibit 23 & 24 (pubic hair)
(ii) Only one hair in exhibit 6b & as such no opinion
with respect to similarity or otherwise with exhibit 5
can be given.
(iii) Exhibit 5, exhibit 11, Ex.25,
No opinion is offered whether exhibit 5 is similar with
exhibit 11 & Ex.25
(i) From morphological and microscopical
examination, the hair in exhibit 5, 6b, 11, 23, 24 & 25
were found to be human in origin
(ii) Hair in exhibit 5 were found to be dissimilar in
most of the morphological & microscopical
characteristics with hair in exhibit 23 i.e. Pubic hair of
X & exhibit 24 i.e. Pubic hair of accused.
(iii) No further opinion."
49. Pursuant thereto, a rough report was prepared recording
therein the results of the hair examinations conducted by Anita
Chhari and the other examinations conducted at FSL with
respect to the case property. It is most relevant to note that an
error occurred while recording conclusion no. (ii) i.e. „hair in
exhibit 5 were found to be dissimilar in most of the
morphological & microscopical characteristics with hair in
exhibit 23 i.e. Pubic hair of X & exhibit 24 i.e. Pubic hair of
accused. The error which occurred was that exhibit 24 was
referred to as containing scalp hair of the accused. However,
said error was detected and duly corrected. The word „scalp‟
was stroked and word „pubic‟ was substituted in its place. It is
also relevant to note that conclusion no. (iii) that no opinion
could be offered whether exhibit 5 is similar to exhibit 11 and
25 was not recorded in the rough report. On the basis of the
aforesaid rough report, the FSL report Ex.PW-37/A was
prepared. Unfortunately, the error which had occurred in the
rough report and was corrected subsequently found its way in
the report Ex.PW-37/A. This practice of callously preparing
reports by the officials of FSL is seriously deprecated by this
court. It is expected that in future the officials of FSL would be
more careful and vigilant while preparing the reports.
50. The correct factual position is that the hair seized from
the spot (exhibit 5) was compared with pubic hair of X (exhibit
23) and pubic hair of the accused (exhibit 24). The result of the
said comparison was that the characteristics of exhibit 5 were
found to be dissimilar from the characteristics of exhibit 23
and 24. Additionally, the hair seized from the spot (exhibit 5)
was also compared with scalp hair of the deceased (exhibit 11)
and scalp hair of the accused (exhibit 25). However, no
conclusive opinion could be rendered with regard to the said
comparison.
51. Vide FSL report Ex.PW-37/B it was opined that blood
detected on the two bed sheets, underwear and strand of hair
seized from the room of the children was having O group;
blood detected on pyjama seized from the room of the children
and blood lifted from the said room was of human origin, group
whereof could not be determined; blood detected on the bed
sheet seized from the room of the parents, knife seized from
the bathroom and clothes of the deceased was having O
group; blood group of the deceased was O; no opinion could be
given about the group of blood sample of the accused as the
same had putrefied; blood detected on pyjama which X was
wearing at the time of her admission in Sunder Lal Jain
Hospital and t-shirt which Y was wearing at the time of her
admission in Apollo Hospital was of human origin, group
whereof could not be determined; no opinion could be given
about the group of blood sample of X and blood which oozed
from the vagina of X as the same had putrefied; blood
detected on shirt and pyjama which X and Y respectively were
wearing at the time of her admission in Apollo Hospital was
having O group and that no opinion could be given about the
group of semen which was found on the vaginal swabs of X
and Y.
52. Vide FSL report Ex.PW-37/C it was opined that blood was
detected on the vest, underwear and pyjama recovered at the
instance of the accused and that human semen was detected
on the said underwear and pyjama. Vide FSL report Ex.PW-
37/D it was opined that blood detected on the said vest was
having O group; blood detected on the said underwear and
pyjama was of human origin, group whereof could not be
determined and that no opinion could be given about the
group of semen which was detected on the said underwear
and pyjama.
53. Armed with the aforesaid materials, a charge sheet was
filed against the accused. Following charges were framed
against the accused:-
"S. No. Charge Offence
1. Section 302 IPC Causing death of
Deceased
2. Section 376 IPC Committing rape
upon X
3. Section 307 IPC Attempting to murder
X and Y
4. Section 392 IPC Committing robbery of
ring of X"
54. At the trial, the prosecution examined as many as 48
witnesses. With a view to have clarity in the analysis of the
evidence led by the prosecution, we segregate the witnesses
of the prosecution into 9 categories, clubbing in one category
witnesses who have thrown light on the same issue. We would
also be splitting, while noting, the testimonies of the
witnesses, whenever required pertaining to the evidence
throwing light on different facets/stages of the case of the
prosecution.
A Witnesses who participated in the preparation of the
necessary documents prepared by the police till the FIR was
registered: - HC Jai Kumar PW-19, HC Pawan Kumar PW-20, HC
Shiv Pratap Singh PW-24 and Const.Tej Pal PW-25.
55. HC Jai Kumar PW-19, deposed that the entry pertaining to
the incident in question was recorded by him in the PCR Form
Ex.PW-19/A. HC Pawan Kumar PW-20, deposed that the DD
entry Ex.PW-20/A, FIR Ex.PW-20/B and the DD entry Ex.PW-
20/C were prepared by him. HC Shiv Pratap Singh PW-24,
deposed that the copy of the FIR Ex.PW-20/B was delivered by
him to Ilaqa Magistrate and other senior police officials in the
early morning of 19.10.2006. Const.Tej Pal PW-25, deposed
that he took the endorsement Ex.PW-48/A prepared by
Inspector Baltej Singh PW-48, to the police station at about
04.00 A.M. on 19.10.2006 for the purposes of registration of an
FIR.
B Witnesses who prepared the documents pertaining to the
medical condition of the deceased, X and Y:- Dr.K.Goyal PW-1,
Dr.M.Arshad PW-2, Dr.Gaurav Singhal PW-3, Dr.Rakesh Kumar
PW-4, Dr.Hari Gupta PW-6, Dr.Sudha Kansal PW-7, Dr.Seema
Patni PW-8, Dr.Uma Rani Swain PW-9, Santosh Kumar
Upadhyaya PW-11, Dr.M.K.Panigrehi PW-12, S.S.Rana PW-16
and Dr.Urvashi Prasad Jha PW-46.
56. Dr.K.Goyal PW-1, deposed that he conducted the post-
mortem of the deceased and prepared the post-mortem report
Ex.PW-1/A of the deceased. He further deposed that he
handed over the clothes, scalp hair and blood sample of the
deceased on a gauze to the police.
57. Dr.M.Arshad PW-2, deposed that the MLCs Ex.PW-2/A,
Ex.PW-2/B and Ex.PW-2/C of X, Y and the deceased were
prepared by him. Dr.Gaurav Singhal PW-3, deposed that the
endorsements Ex.PW-3/A and Ex.PW-3/B was made by him on
the MLC Mark X of X and that tracheotomy tube inserted in the
throat of X was removed on 23.10.2006.
58. Dr.Rakesh Kumar PW-4, deposed that he medically
examined the accused on 20.10.2006 and prepared the MLC
Ex.PW-4/A in said regard. He further deposed that he handed
over the blood sample of the deceased to SI Rishipal after
conducting the medical examination of the accused. Dr.Hari
Gupta PW-6, deposed that he medically examined the accused
on 22.10.2006 and prepared the MLC Ex.PW-6/A in said regard.
He further deposed that he handed over two vials containing
pubic hair and scalp hair of the accused to SI Rishipal after
conducting the medical examination of the accused.
59. Dr.Sudha Kansal PW-7, deposed that she had prepared
the history sheet Ex.PW-7/A of X on 19.10.2006 of X and that
she made the endorsement Ex.PW-7/B on the MLC Mark X of X.
60. Dr.Seema Patni PW-8, deposed that she examined X at
about 01.00 A.M. on 19.10.2006. X had multiple stab injuries
all over her body, predominantly on the upper chest and
abdomen and that her neck was slit open. Tracheotomy tube
was put in the throat of X and that a chest tube was put in the
left side of the chest of X. Multiple blood transfusions were
given to X. She further deposed that she opined that the
injuries found on the person of X were dangerous in nature and
that the treatment record Ex.PW-8/A of X was prepared by her.
That she made the endorsement Ex.PW-8/B on the MLC Ex.PW-
2/B of Y and prepared the treatment record Ex.PW-8/C of Y.
61. Dr.Uma Rani Swain PW-9, deposed that she conducted
the gynaecological examination of X at about 3.15 P.M. on
19.10.2006 and prepared the report Ex.PW-9/A in said regard.
She further deposed that she conducted the gynaecological
examination of Y at about 3.45 A.M. on 19.10.2006 and
prepared the report Ex.PW-9/B in said regard. After conducting
the gynaecological examination of X and Y she handed over
the materials seized vide memo Ex.PW-9/C to the police.
62. Santosh Kumar Upadhyaya PW-11, deposed that he is
working as Record Clerk at Sunder Lal Jain Hospital and that
the case note Ex.PW-11/A of Y, discharge summary Ex.PW-11/B
of Y and the case note Ex.PW-11/C of X were prepared by
Dr.Rakesh Kumar Gupta. That Dr.Neetu made the
endorsements that 'Pt. is not fit for statement because of
tracheotomy' on the MLCs Ex.PW-2/A and Ex.PW-2/B of X and Y
respectively. That he can identify the handwriting and
signatures of Dr.Rakesh Kumar Gupta and Dr.Neetu.
63. Dr.M.K.Panigrehi PW-12, deposed that he examined the
accused on 20.10.2006 at about 3.30 P.M. to ascertain
whether the accused is capable of performing sexual
intercourse and that he prepared the report Ex.PW-12/A in said
regard. S.S.Rana PW-16, deposed that he handed over the
materials seized vide memo Ex.PW-16/A to the police.
64. Dr.Urvashi Prasad Jha PW-46, deposed that on
19.10.2006 X had written the account Ex.PW-46/A of the
incident in her presence. She conducted the gynaecological
examination of X at about 05.00 P.M. on 19.10.2006 and she
noted following injuries on the person of X:- (i) A torn hymen;
(ii) Circumferential tears between the hymen and the labia
minora with slight bleeding; and (iii) Tear in the fouchette with
slight bleeding which is suggestive of forced sexual vaginal
intercourse.
C Witnesses to prove the scientific evidence: - Ravinder
Kumar Jain PW-15, Dr.V.K.Goyal PW-36 and Anita Chhari PW-
37.
65. Ravinder Kumar Jain PW-15, deposed that the report
Ex.PW-15/A was prepared by him. Anita Chhari PW-37,
deposed that the FSL reports Ex.PW-37/A, Ex.PW-37/B, Ex.PW-
37/C and Ex.PW-37/D were prepared by her.
66. Dr.V.K.Goyal PW-36, deposed that the police made an
application Ex.PW-36/A for return of the parcel containing the
pyjama recovered at the instance of the accused and that he
made an endorsement Ex.PW-36/B on the said application
allowing the return of the said application.
D Witnesses to prove the documents prepared during the
investigation of the present case: - Sudhir Bhalla PW-14, ASI
Manish Kumar Bhardwaj PW-26 and ASI Ajay Kumar PW-27.
67. Sudhir Bhalla PW-14, deposed that the report Ex.PW-14/A
was prepared by him. ASI Manish Kumar Bhardwaj PW-26,
deposed that the report Ex.PW-26/A was prepared by him. ASI
Ajay Kumar PW-27, deposed that the report Ex.PW-27/A was
prepared by him.
E Witnesses to prove the culpability of the accused: - X PW-
21, Y PW-22, Ramesh Kumar Aggarwal PW-10, Nirmal Aggarwal
PW-23, Gurpreet Singh PW-5 and Jeetan Dass PW-39.
68. X PW-21, deposed that on 14.10.2006 her mother
employed the accused as a domestic servant. On 18.10.2006
at about 10.00 P.M. she, Y, the deceased and her parents were
watching television in the room of her parents. After
sometime, she, Y and the deceased went to their bedroom
where Y and the deceased went to sleep whereas she studied
for about half an hour. Thereafter she also went to sleep on
the bed on which the deceased was sleeping. At about 12.00
A.M. she heard the noise of weeping of Y upon which she woke
up and saw that the accused was sitting between the bed on
which she was sleeping and the bed on which Y was sleeping.
She immediately switched on the light and saw that the neck
and hands of Y were smeared with blood. The accused who
was carrying a knife in his hand rushed towards her. She tried
to open the door but the accused gave knife blows on her back
and the left side of her body due to which she fell down on the
floor. The accused went to Y, slit her throat and asked her to
remove her pant. In the meantime, the deceased also woke up
and started crying. Y asked the accused to allow her to go out
to drink water but the accused told her to drink water from the
tap in the bathroom which was situated in the said room. Y
went to the bathroom and the deceased started to follow Y.
When the deceased was about to enter the bathroom the
accused caught hold of the deceased from his neck. The
accused lifted the deceased from his neck, gave a knife blow
on his neck and threw him on her bed. The knife got stuck in
the neck of the deceased. She and Y requested the accused to
let them go out and told him that they would not disclose a
word about the incident to anyone. The accused went out of
the room and brought another knife from the kitchen. The
accused gave knife blows on her neck as also on the neck of Y.
Thereafter he removed her pyjama and under pant as also his
clothes. The accused tried to rape her but she managed to
save herself by taking a turn. The accused again gave a knife
blow on her back and committed rape upon her. While
committing rape upon her, the accused removed a ring from
the finger of her left hand. The accused again tried to rape her
but she fell down from the bed. The accused placed his fingers
on her nostrils to ascertain if she was alive or not. She stopped
her breath and the accused went out of the room. She asked Y
to go to the room of her parents and inform them about the
incident but she did not go as she was scared and
apprehended that the accused is present outside the room.
She and Y were bleeding from their necks. Thereafter she went
to the room of her parents by crawling on the floor. On
reaching there, she switched on the light upon which her
mother woke up. Her mother woke up her father. Her father
made her to lie down on the bed. She told her parents about
the incident. Her mother and her neighbours helped her to
wear clothes. Her father and her neighbours removed her, Y
and the deceased to the hospital. The pyjama and the
underwear recovered by the police from her room were worn
by her at the time of the occurrence. She caught the hair of
the accused when he assaulted her for the first time and that
some strands of hair of the accused came in her hand.
69. On being questioned as to why she did not raise an alarm
at the time of the occurrence, X stated that (Quote) 'I could
not raise any alarm because I had sustained injuries on my
neck. I had not struggled with the accused to save myself nor I
had fought with him. Vol. I had pulled his hairs.'
70. PW-22, deposed that on 18.10.2006 she, i.e. Y, the
deceased and her parents were watching television in the
room of her parents. At about 10.30 P.M., she, i.e. Y and the
deceased went to their bedroom where she and the deceased
went to sleep whereas X started studying. After sometime she
felt that someone was fondling her body upon which she woke
up. She saw that the accused was fondling her body with his
hand. She removed the hand of the accused from her body
upon which the accused pressed a knife on her neck as a
result of which blood started to ooze out of her neck. When
she removed his hand she also sustained injuries on her
fingers. The accused pushed her from the bed due to which
she fell down on the floor upon which she started weeping. On
hearing her noise X woke up and switched on the light. X tried
to open the door of the room but the accused attacked her
with knife. The accused gave two-three knife blows to X. X
caught the hair of the accused but fell on the floor. The
accused asked her to open her pant. She asked the accused to
let her go out as she wanted to drink water upon which the
accused told her to drink water from the tap in the bathroom.
In the meantime the deceased also woke up and started
crying. She went to the bathroom and the deceased started to
follow her. The accused caught hold of the deceased from his
neck, gave a knife blow on his neck and threw him on the bed.
The knife got stuck in the neck of the deceased. The accused
ran to the kitchen and brought another knife from there. The
accused inflicted several knife blows on her body. The accused
also gave knife blows on the neck and back of X. The accused
removed the under pant of X as also his clothes. Thereafter
the accused committed bad act with X. The accused made X to
lie on her bed and again committed bad act with her. (The
witness explained the meaning of „bad act‟ by stating that
(Quote) 'By bad act I mean that he laid himself on my sister'.)
The accused placed his fingers on the nostrils of X to ascertain
if she was breathing or not and went out of the room. After a
while X asked her to call their mother but she did not go as she
was scared. After sometime X herself went to room of their
parents by crawling on the floor. She followed X. She narrated
the whole incident to her parents. Her father and neighbours
removed her, X and the deceased to the hospital. She
sustained injuries on her neck and other parts of her body.
71. On being questioned as to why she did not raise an alarm
at the time of the occurrence, Y stated that (Quote) 'I did not
cry because I have received cut with knife on my neck...I did
not raise any alarm since I was injured. I was not having
injuries on my leg. I did not run out of the because it was
bolted from upside by a chitkani.' On being questioned about
the commission of rape by the accused upon X she stated that
(Quote) 'Accused kept on lying on my sister for 3-4 minutes. At
that time I was on my bed. The difference between the first
bad act and second bad act was half a minute. My sister has
tried to free her by moving herself on one side but accused
gave a knife blow to her. When my sister took a turn on one
side accused had given a knife blow to her. My sister had
taken a turn much after the accused laid on her....For the
second time, the bad act which the accused did with my sister
was on my bed. I was sitting on the same bed'. On being
questioned about the movement of the accused to the kitchen
the witness stated that (Quote) 'The accused left our bedroom
at around 12.30 a.m. The door was open when the accused
had left the bedroom to the kitchen to bring a knife. Within 5-
10 seconds, accused had returned back to the bedroom with a
knife. We did not try to run out of the bedroom because the
accused in the meantime had come to the bedroom again.'
72. Ramesh Kumar Aggarwal PW-10, the father of the
children, deposed that they employed the accused as a
domestic servant to work in their house five days prior to the
intervening night of 18/19.10.2006 on the recommendation of
a driver named Jeetu. They gave a room built on the roof of
their residence to the accused for his occupation. On
18.10.2006 he, his wife and three children namely X, Y and the
deceased were watching television in their room. The accused
who was pressing his legs was also present in the said room at
that time. At about 10.00 P.M., X, Y and the deceased went to
their bedroom. At about 11.15 P.M. he and his wife went to
sleep and the accused left their room. At about 12.45 P.M. X
who was soaked with blood and writhing in pain entered their
room all of a sudden. She told him and his wife that the
accused has inflicted injuries on her body and thereafter fell on
the bed. Meanwhile, Y who was also soaked with blood and
was weeping loudly came to their room and told them that the
accused has caused injuries to the deceased. On hearing the
same, he and his wife rushed to the room of their children
where they saw that the deceased was drenched with blood
and that a knife was stuck in his neck. The knife which was
stuck in the neck of the deceased did not belong to their
household. He pulled out the knife from the neck of the
deceased and threw it on the floor. The knife was taken away
by the accused. He raised an alarm upon which their
neighbours came to their residence. He and his neighbours
removed X, Y and the deceased to Sunder Lal Jain Hospital
where the deceased was declared as brought dead. The
doctors told him that the condition of X and Y was serious at
the time of their admission in the hospital. After sometime the
police arrived at the hospital and recorded his statement
Ex.PW-10/A. The accused managed to escape from their
house. On 26.10.2006 he handed over the t-shirt and the
pyjama which Y was wearing at the time of the occurrence to
the police. The date of birth of X and Y are 09.10.1989 and
28.07.1997 respectively as recorded in the birth certificates
Ex.PW-10/C and Ex.PW-10/D.
73. On being questioned about the time of removal of the
children to the hospital, the witness stated that (Quote) 'I
heard the screams of my daughters around 12.45 am on
19.10.06. I left for Sunder lal Jain Hospital around 12.50 to
12.55 am on 19.10.06. On the way to hospital I was
accompanied by my first floor neighbour Sh. Gurmeet Singh.'
On being questioned about the knife which was stuck in the
neck of the deceased the witness stated that (Quote) 'I had
removed the knife from the neck of my son and the same was
left at the spot. That knife remained on the spot when I left for
the hospital. I did not find that knife there in my house when I
came back at 10.00 am from the hospital'. On being
questioned about the presence of the accused after the
occurrence, the witness stated that (Quote) 'It is correct that
after my daughter came to my bedroom I along with my wife
and daughter had gone to the bedroom of my children. It is
correct that accused was not found present in the room or in
the house.'
74. Nirmal Aggarwal PW-23, the mother of the children,
deposed that on 14.10.2006 they employed the accused as a
domestic servant to work in their house. On 18.10.2006 she,
her wife and her three children namely X, Y and the deceased
were watching television in their bedroom. At about 10.30
P.M., X, Y and the deceased went to their bedroom. The
accused was also present in their bedroom up till 11.00 P.M.
and thereafter he also left from there. The accused used to
sleep in a room built on the roof of their house. At about 12.40
AM she heard the noise that of light being switched on upon
which she woke up and saw that X was smeared with blood
and was not having any undergarments on her person. She
woke up her husband and made X to lie on her bed. X told her
that she has been assaulted by the accused. In the meantime
Y also came there and told her that the accused has stabbed
her, X and the deceased. On hearing the same, she and her
husband rushed to the bedroom of the children where they
saw that a knife is stuck in the neck of the deceased. Her
husband pulled out the knife from the neck of the deceased.
They raised an alarm. She and her neighbours put on the
clothes on the person of X and removed the children to Sunder
Lal Jain Hospital. She had seen a knife in a bathroom situated
near the stair case of her house.
75. On being questioned about her movements after the
occurrence, the witness stated that (Quote) 'We had removed
our children from our house around 12.40 am for hospital. I
had not gone to sunder Lal hospital with my children but
remained in the house. I remained in my house upto 1.30/1.45
am. Thereafter police came and took me to Jain Colony in
search of the accused. SHO had taken me in the search of the
accused. I returned back to my house around 4.00 am....It took
about 1 hour to search out the house of my driver in Jain
Colony. At that time accused was not found in the house of
Jeetu. From there we had tone along with Jeetu to Jawahar
Nagar where jija of accused had been residing. Accused was
not found there also'
76. On being questioned about the knives recovered from
the place of occurrence the witness stated that (Quote) 'After
removing the knife from the neck my husband had thrown the
knife on the floor. When SHO was taking me in search of the
accused in my house before leaving the house I had gone to
the bathroom near the stair case where I noticed the knife.
Knife which was lying in the bathroom was taken into
possession by the police but I cannot say whether the other
knife was also taken in the possession.'
77. Gurpreet Singh PW-5, deposed that he was the neighbour
of the family of the children inasmuch he and the family of the
children used to reside in the different floors of the same
building in the year 2006. On the intervening night of
18.19/10.2006 at about 12.20 PM or 12.30 PM he was about to
go to sleep when he heard some noise but he ignored the
same. After a while he heard a voice saying that „my children
have been caused injuries‟. On hearing the same, he
immediately rushed to the second floor of the building in which
he used to reside as the voice was coming from there. Ramesh
Kumar Aggarwal, his wife, three daughters and one son were
residing on the second floor. The family of Ramesh Kumar
Aggarwal had employed one domestic servant. When he
reached the second floor, Mr.Ramesh Aggarwal and his wife
opened the door and told him that their children have been
killed by their servant and that their servant has absconded.
He saw that Ramesh Kumar Aggarwal was carrying the
deceased who was badly injured and was bleeding profusely. X
was lying on the bed in an injured condition while Y who was
also injured was standing in the room. He immediately offered
his help to Ramesh Kumar Aggarwal for removing the children
to the hospital. He also gave a call to the police from his
mobile having number 9811042809 and informed them about
the incident. Thereafter he along with Ramesh Kumar
Aggarwal removed the deceased to Sunder Lal Jain Hospital in
his own car while X and Y were also removed to the same
hospital by someone else.
78. On being questioned about the room in which the
occurrence took place the witness stated that (Quote) 'I had
seen the room where the incident took place. I had not seen
the knife lying in the room. I had seen the room of the children
where the incident took place after I came from the hospital.'
On being questioned about the arrival of the police at the
place of occurrence the witness stated that (Quote) 'I had
taken Pratham (the son of the complainant) to the hospital. We
had reached the hospital between 12.00 or 1.00 am. PCR came
at the house after we left for hospital. In my presence police
did not reach the hospital. I remained in the hospital only for 5
minutes. When I returned back to the house I saw the police
officials, present there.'
79. Jeetan Dass PW-39, deposed that he earns his livelihood
by working as a driver. He had taught driving to the wife of
Ramesh Kumar Aggarwal about 8-10 years prior to the year
2008. The wife of Ramesh Kumar asked him to get her a
domestic servant. Since he had provided a boy named Jheri to
her on an earlier occasion she again asked him to get her a
domestic servant. The boy he had earlier provided to wife of
Ramesh Kumar left her services. A person named Subash who
was known to him had requested him to arrange some job for
his brother-in-law. He asked Subash to meet the wife of
Ramesh Kumar for the job upon which Subash along with his
brother-in-law met her. After meeting Subash and his brother-
in-law wife of Ramesh Kumar gave him a telephonic call and
told him that she has employed the brother-in-law of Subash.
The accused is the brother-in-law of Subash. In the month of
October 2006 some police officials came to his house and
made inquiries about the accused whereupon he learnt about
the incident in question. He took the police officials to the
residence of Subash where they met Subash.
80. On being questioned about the presence of wife of
Ramesh Kumar Aggarwal at the time when the police came to
his house, the witness stated that (Quote) 'Wife of Ramesh
was also with them‟. On being questioned about the identity of
the accused the witness stated that (Quote) 'It is correct that I
had not seen accused present in the court before I had
referred him to the wife of Ramesh, complainant. Thereafter I
had seen the photograph of the accused in the newspaper and
after that I had seen him in the court. It is correct that I had
not physically seen the accused before even after he was
employed in the house of Ramesh.'
F Witnesses who participated in the investigation of the
present case:- HC Sanjay PW-30, HC Rajpal Singh PW-32, HC
Tejpal PW-33, SI Rishipal Singh PW-34, SI Manohar Lal PW-38,
SI Dharampal PW-40 and Inspector Baltej Singh PW-48.
81. We need not note the testimony of the aforesaid
witnesses for they have deposed facts regarding the
respective role played by them during investigation which
have already been succinctly stated by us in the preceding
paragraphs and in respect whereof not much submission were
made during arguments. However, where necessary to deal
with the submissions made by the learned counsel for the
accused, such part of the testimony of the relevant witness
should be noted.
G Witnesses to prove the arrest of the accused: - HC
Yogender PW-28 and Inspector Vimal Kishore PW-29.
82. HC Yogender PW-28, deposed that on 19.10.2006
pursuant to a secret information he along with Inspector Vimal
Kishore and other police officials had gone to Rishikesh to
arrest the accused. They apprehended the accused at about
6.30 P.M. on 19.10.2006 at Rishikesh. On being questioned
about the time when he left Delhi to go to Rishikesh the
witness stated that (Quote) 'We left Delhi at about 1.30 am on
19.10.2006....'
83. Inspector Vimal Kishore PW-29, deposed in harmony with
the evidence of HC Yogender. On being questioned about the
time when they left Delhi to go to Rishikesh the witness stated
that (Quote) 'We left Delhi at about 1.30 am on 19.10.2006....'
On being questioned about the time when he left Delhi to go to
Rishikesh the witness stated that (Quote) 'I left Delhi at 4.00 or
4.30 am on 19.10.06......."
H Witnesses to prove the recoveries effected at the
instance of the accused:- Prem Prakash Aggarwal PW-17, SI
Rishipal Singh PW-34, SI Ramesh Dixit PW-35 and Inspector
Baltej Singh PW-48.
84. SI Rishipal Singh PW-34, SI Ramesh Dixit PW-35 and
Inspector Baltej Singh PW-48, deposed that on 20.10.2006 at
about 11.00 A.M. the accused led them to the second floor, 6/4
Singh Sabha Road, New Delhi i.e. the residence of the children
and got recovered a pyjama, a vest, an underwear and a
handkerchief from the roof of the room which was built on the
said floor. Prem Prakash Aggarwal PW-17, the brother of the
father of the children, deposed that he was present at the time
of the said recovery. Additionally, SI Ramesh Dixit PW-35 and
Inspector Baltej Singh PW-48, deposed that on 30.10.2006 on
being interrogated the accused made his second disclosure
statement wherein he stated that the ring which was removed
by him from the finger of X at the time when he committed
rape upon her was kept by him in the right pocket of the
pyjama worn by him at that time. Pursuant thereto, the parcel
containing the said pyjama was brought from the FSL to the
police station. The said pyjama was checked upon which a
diamond ring was recovered from the right pocket of the said
pyjama.
I Witnesses to prove the dates of birth of X and Y: - Harish
Kumar PW-13, Geeta Arora PW-43.
85. Harish Kumar PW-13, produced the birth register
pertaining to year 1997. As per the said register, a female
child was born to Ramesh Kumar Aggarwal and Nirmala
Aggarwal on 28.04.1997.
86. Geeta Arora PW-43, Principal, Happy School, brought the
record pertaining to the admission of X and Y in the said
school. As per the said record, the dates of birth of X and Y
were 09.10.1989 and 28.04.1997 respectively.
87. In his examination under Section 313 Cr.P.C., the
accused admitted that on 14.10.2006 he was employed as a
domestic servant at the residence of Ramesh Kumar Aggarwal;
that in the night of 18.10.2006 he surreptitiously entered the
bedroom where X, Y and the deceased were sleeping; that he
gave a knife blow on the neck of the deceased and inflicted
injuries on the person of X and Y; that he raped X; that on
19.10.2006 he was arrested by the police at Rishikesh and that
he got recovered the clothes which he was wearing at the time
of the occurrence. The accused however denied having
removed a ring from the finger of X at the time when he
committed rape upon her. The accused further stated that he
committed the aforesaid acts to seek revenge from the father
of the children as he used to force him to commit homosexual
acts with him.
88. The accused did not lead any evidence in his defence.
89. Believing the evidence of X PW-21 and Y PW-22, to be
creditworthy, the learned Trial Judge has convicted the
accused of having murdered the deceased, attempted to
murder X and Y and raped X. With respect to the charge under
Section 392 IPC framed against the accused, the learned Trial
Judge has held that since there is no evidence to show that the
accused used force to remove the ring from the finger of X he
cannot be convicted for the offence of having committed
robbery of the ring of X. The learned Trial Judge held that the
accused is guilty of committing theft of the ring of X, an
offence punishable under Section 379 IPC. (We shall be noting
the reasoning of the learned Trial Judge with regard to
imposition of death penalty on the accused in the later part of
this judgment).
90. At the hearing, numerous arguments were advanced by
the learned counsel for the accused, which arguments can be
divided into following two categories:-
I Arguments pertaining to the correctness of the finding of
guilt of the accused returned by the learned Trial Judge.
II Arguments pertaining to the correctness of the
punishment awarded by the learned Trial Judge.
91. Arguments pertaining to the correctness of the finding of
guilt of the accused returned by the learned Trial Judge: -
Under this head, following 17 arguments were advanced by
the learned counsel for the accused:-
A The first submission advanced by the learned counsel for
the accused pertained to the age of the accused on the date of
offence. A faint plea was urged before us that accused was
juvenile on the date of offence(s) with which he is charged and
therefore he should have been tried in accordance with the
provisions of Juvenile Justice (Care and Protection of Children)
Act, 2000 read with Amendment (Care and Protection of
Children) Act, 2006. Notwithstanding that the plea of juvenility
was not raised before Trial Judge, in the interests of justice,
vide order dated 03.09.2009 we directed that ossification test
of the accused be conducted by a medical board of AIIMS to
ascertain the age of the accused. Pursuant to the said order,
Medical Superintendent, AIIMS, constituted a medical board
consisting of following members:-
"1. Dr.Sanjeev Lalwani - Chairman
Assistant Professor of Forensic Medicine
2. Dr.Ashu Seith Bhalla - Member
Assoc. Professor of Radio-diagnosis
3. Dr.Vijay Prakash Mathur - Member
Assistant Professor of C.D.E.R.
4. Dr.Kashipa Harit - Member Secy.
Department of Hospital Administration"
After conducting the physical, dental and radiological
examination of the accused, Board prepared the report dated
18.09.2009, relevant portion whereof reads as under:-
"PHYSICAL EXAMINATION
SECONDARY SEXUAL CHARACTERS- Fully Developed
GENITALS-Adult size fully developed genitalia with
bilaterally descended testis.
DENTAL CHARTING
Right Upper Jaw 1 to 7 8 th Partiall erupted
Right Lower Jaw 1 to 8
Left Upper Jaw 1 to 7 8 th Partially erupted
Left Lower Jaw 1 to 8
X-Ray - OPG- Report of Dental Radiological
Examination OPG X Ray seen wisdom molar (3rd
Molar) present and fully developed roots
Impression: Ages estimation between 18-22
years (Report Enclosed)
RADIOLOGICAL EXAMINATION (REPORT
ENCLOSED)
.....
Report of Radiological Examination-
1. X-ray B/L Humerus- AP & Elbow - B/L Conjoint
humeral epiphysis fused - BA > 17.5 years
2. X-ray B/L Knee - AP - B/L upper epiphysis fused
- BA > 18.5 years.
3. Pelvis - AP - Iliac crest fused - age > 20 years
4. X-ray Chest (Shoulder with Medial end of
Clavicle (B/L) - PA - Medial end of Clavicles fused
bilaterally: BA > 22 years
REPORT
Considering the findings of physical, dental and
radiological examination we are of the considered
opinion that BONE AGE of convict Sanjay Dass S/o
Sh.Asharfi Dass is more than 22 years."
Counsel for the accused contended that it is an
undisputed position that the margin of error in age ascertained
by radiological examination is to be taken as 2 years on either
side. Counsel therefore urged that age of the accused has to
be taken as 20 years on 18.09.2009 and 17 years on
18/19.05.2006 i.e. the date of the offence, meaning thereby,
that the accused was a juvenile on the date of the offence.
B The second submission advanced by the learned counsel
for the accused was predicated upon the competency of the
lawyer who defended the accused in the trial court and the
manner of the conduct of the trial of the accused. The first
limb of the submission advanced by counsel was that if an
accused is not able to engage a lawyer, the State at its
expense, must provide one to the accused and that the lawyer
so provided must be "competent". Counsel further urged that
it is duty of the court to see and ensure that the accused is
represented with diligence and competence by defence
counsel and where the defence falls below acceptable
standards at a criminal trial, it would amount to denial of
counsel‟ assistance. As per counsel, a perusal of the record of
the trial court shows that the lawyer appointed by the trial
court to defend the accused defended the accused in a most
slipshod manner inasmuch as he did not appear before the
trial court on many dates and did not subject witnesses of the
prosecution to any cross-examination. Counsel urged that the
incompetence of his lawyer frustrated the accused to no end
inasmuch as he could foresee the result of the trial and that
said frustration led the accused to plead guilty, therefore in
such circumstances, no credence should be given to so-called
admissions made by the accused in his examination under
Section 313 Cr.P.C. The second limb of the submission was
that many witnesses of the prosecution were examined in the
absence of counsel of accused which has greatly prejudiced
the accused for the reason their evidence has gone
unchallenged. Counsel urged that the trial of the accused must
be held to be vitiated on account of said serious infirmity and
as a result the conviction and sentence recorded against the
accused must also be set aside.
C The third submission advanced by the learned counsel
for the accused was that the evidence on record and other
circumstances of the case are suggestive of the fact that the
offence in question was committed by "two" persons. The said
submission was predicated upon the PCR form Ex.PW-19/A, DD
entry Ex.PW-20/A, crime team report Ex.PW-27/A and FSL
report Ex.PW-37/A. Counsel urged that the recordings
contained in the PCR form Ex.PW-19/A and DD entry Ex.PW-
20/A that "servants" had murdered the children probablizes
that the offence was committed by more than one person.
Counsel further urged that the said probability is further
increased by the recording contained in the crime team report
Ex.PW-27/A that „servants be located and interrogated‟.
Counsel urged that the finding contained in the FSL report
Ex.PW-37/A that semen was detected on the vaginal swabs of
both X and Y establishes that both the girls had sexual
intercourse on the date of the offence. Counsel urged the case
of the prosecution was that only X was raped by the accused
then the question which arises is that how come semen was
detected on the vaginal swab of Y. As per the counsel, the
conclusion which results from the above conspectus of facts is
that the offence was committed by two persons.
D The fourth submission advanced by learned counsel was
predicated upon the PCR form Ex.PW-19/A and the testimony
of Gurpreet Singh PW-5. Counsel urged that Gurpreet Singh
PW-5, deposed that he reached the place of occurrence
between 12.20 P.M. to 12.30 P.M. on the intervening night of
18/19.10.2006. Counsel urged that first endeavour of Gurpreet
Singh on reaching the place of occurrence should have been to
inform the police about the incident which was not the case
inasmuch he informed the police much later at 01.05 A.M. on
19.10.2006 as evident from the perusal of the PCR form
Ex.PW-19/A. Counsel urged that the gap of 35 minutes
between the time of reaching of Gurpreet Singh at the place of
occurrence and time of his informing the police about the
incident shows that the parents of the children and Gurpreet
Singh bought time to decide a strategy as to what should have
been told to the police before conveying information of the
incident to the police.
E The fifth submission advanced by learned counsel was
predicated upon the site plan Ex.PW-48/D of the place of
occurrence and the testimony of Gurpreet Singh PW-5. With
reference to the site plan Ex.PW-48/D counsel urged that it
showed there was a single entry into the flat where the crime
took place. Counsel urged that normal conduct of the parents
of children would have been to lock the door of the flat from
inside before going to sleep. Counsel urged that under the
circumstances, to gain an entry into the flat, somebody either
had to break inside or would make a friendly entry. Counsel
urged that the accused used to sleep on the room built above
the flat where the crime took place and therefore he could
have gained entry into the flat only by breaking inside. After
drawing attention of the court to the fact that there is no
evidence establishing forced entry into the flat, a half-hearted
plea was urged by the counsel that it is possible that the
children and in particular X may have allowed entry to
somebody known to her and that in probability the persons
allowed entry by X were two in number who misused the faith
of the young girl. Counsel then drew attention of the court to
the deposition of Gurpreet Singh PW-5, that the door of the flat
where the crime took place was opened by the parents of the
children at the time when he reached there on hearing the
alarm raised by the father of the children. Counsel urged that
the fact that the door was opened by the parents of the
children is suggestive of the fact that after those two persons
who committed the crime ran away the parents of the children
locked the door of their house, made a strategy as to what
should be conveyed to the outside world and after having
made the strategy raised an alarm.
F The sixth submission advanced by the learned counsel
was that the evidence of X and Y does not inspire confidence
as there are many improbabilities in their version of the
incident. The first improbability pointed out by the learned
counsel was that Y deposed that when she felt that somebody
was groping her the light of the room of switched off and that
she was able to recognize that the person groping her was the
accused. Counsel urged that how could Y recognize the
accused in darkness as the time when the offence was
committed was around 12.30 midnight. The second
improbability pointed out by the learned counsel was that Y
deposed that X was raped twice by the accused within a span
of one minute, which counsel contended was most improbable.
The third improbability pointed out by the learned counsel was
that X and Y deposed that they did not raise an alarm at the
time of the occurrence. Counsel urged that on sensing trouble
first thing which ought to have been done by X and Y was to
raise an alarm to attract the attention of her parents
particularly when the distance between the rooms of the
children and the parents was very less. As per counsel, the
conduct of X and Y of not raising an alarm is most unnatural
and raises a big doubt on their credibility. The fourth
improbability pointed out by the learned counsel was that Y
deposed that the accused did not lock their room at the time
when he out of their room to bring second knife from the
kitchen. Counsel urged that the most natural thing out to have
been done by X and Y in said circumstances was to run to the
room of their parents. Counsel urged that the failure of X and Y
to do the same raises a big question mark on the truthfulness
of their evidence.
G The seventh submission advanced by the learned
counsel was predicated upon the statement Ex.PW-46/A of X.
Counsel drew attention of the court to the recordings
contained in the statement Ex.PW-46/A of X that 'I don't know
his name, my mom must be knowing it...... I don't remember
his name. I think its Sanjay'. Counsel urged that the fact that X
is doubtful about the identity of the assailant in her statement
Ex.PW-46/A which is the first information given by X about the
incident is suggestive of the fact that X was tutored to falsely
implicate the accused.
H The eighth submission advanced by the learned counsel
was also predicated upon the statement Ex.PW-46/A of X.
Counsel urged that X stated in her statement Ex.PW-46/A that
she tried to fight the accused, which statement is patently
false inasmuch as no external injury was found on the person
of the accused as recorded in the MLCs Ex.PW-4/A and Ex.PW-
6/A of the accused.
I The ninth submission advanced by the learned counsel
was predicated upon the conduct of Nirmala Aggarwal, the
mother of the children, soon after the occurrence. Counsel
drew attention of the court to the deposition of Nirmala
Aggarwal PW-23, that she went with the police to look for the
accused soon after the occurrence. As per counsel, the said
conduct of a mother who has just lost his son and whose two
daughters are lying at the hospital is most abnormal.
J The tenth submission advanced by the learned counsel
was that the evidence on record and other circumstances of
the case strongly suggest that the knives recovered by the
police from the place of occurrence were planted. This
submission was predicated upon the brief facts Ex.PW-1/C8
pertaining to the death of the deceased, death report Ex.PW-
1/C9 of the deceased and the testimony of Ramesh Kumar
Aggarwal PW-10 and Gurpreet Singh PW-5. Counsel submitted
that the brief facts Ex.PW-1/C8 pertaining to the death of the
deceased records that one knife have been recovered from the
place of occurrence whereas as per the case of the
prosecution two knives have been recovered from there.
Counsel submitted that as per the prosecution two knives were
recovered from the place of occurrence by the time Inspector
Baltej Singh prepared the death report Ex.PW-1/C9 of the
deceased. Counsel urged had that been the case Inspector
Baltej Singh would not have recorded in the death report that
the death of the deceased was apparently caused by some
sharp object, instead would have recorded that the death of
the deceased was caused by a knife. Counsel urged that the
cluelessness of Inspector Baltej Singh about the weapon of
offence in the death report Ex.PW-1/C9 of the deceased is
indicative of the fact that the knives in question were planted
by the police. Counsel then urged that the deposition of
Rakesh Kumar Aggarwal PW-10, that the knife which was stuck
in the neck of the deceased was taken away by the accused
and Gurpreet Singh PW-5, completely demolishes the case of
the prosecution with respect to the recovery of the knives in
question. Counsel lastly urged that Gurpreet Singh PW-5,
deposed that he did not see any knife in the room where the
occurrence took place whereas as per the case of the
prosecution one knife was recovered from the said room.
Counsel argued that the cumulative effect of the aforesaid
discrepancies in the evidence on record when coupled with the
fact that no attempt was made by the investigating officer to
lift the finger prints from the knives in question leads to an
irresistible conclusion that the said knives were planted.
K The eleventh submission advanced by the learned
counsel was that the recovery of the clothes at the instance of
the accused is a doubtful recovery for the reason as per the
prosecution, the accused after committing the crime, took a
bath, changed his clothes and threw the clothes earlier worn
by him at the time of the occurrence on the roof before
fleeing. Counsel urged that Y claimed to have informed her
parents within 5 minutes of the accused leaving their room
and that Ramesh Kumar Aggarwal claimed to have raised an
alarm immediately thereafter. As per counsel, where was the
time for the accused to take a bath, change his clothes, wear
new clothes and throw the clothes changed by him on the roof.
L The twelfth submission advanced by the learned counsel
was that the recovery of the ring of X from the pocket of the
pyjama of the accused is a tainted recovery. Counsel first
urged that there is a fundamental fallacy in the story set up by
the prosecution with respect to ring of X. Counsel submitted
that had the accused removed ring from the finger of X as
claimed by the prosecution he would have done it for
pecuniary gain and therefore it does not appeal to common
sense that the accused would have taken the ring with him
and would not have left behind it in the pocket of his pyjama.
Counsel then contended that the fact that the accused did not
state a word about the ring of X in his first disclosure
statement and disclosed about the same only when factum of
removal of ring came into the knowledge of the police makes it
highly probable that ring was planted. Counsel urged that said
probability is further increased by the fact that police did not
find any ring in the pocket of pyjama of the accused at the
time of the seizure of the said pyjama.
M The thirteenth submission advanced by the learned
counsel was that predicated upon the FSL report Ex.PW-37/A.
Counsel urged that X deposed that she had tugged the hair of
the accused at the time of occurrence and that a bunch of
scalp hair of the accused came in her hand. Counsel urged
that the FSL report Ex.PW-37/A shows that hair which was
seized from the place of occurrence were not opined to be
those of the accused, which fact establishes the presence of
somebody else at the place of occurrence.
N The fourteenth submission advanced by the learned
counsel was that the evidence on record is suggestive of the
fact that police had malice against the accused. The said
submission is predicated upon an application filed by Inspector
Baltej Singh before trial court on 20.10.2006 for seeking
remand of the accused. The reason given by Inspector for
seeking the remand of the accused was that the accused is
required to be interrogated to ascertain the source of knife
used by him for committing the offence. Counsel urged that
the aforesaid reason is most flimsy inasmuch as the accused
had already disclosed the sources of knives used by him for
committing the offence in the alleged disclosure statement
made by him. Counsel further urged that the attempt of the
investigating officer to seek police remand of the accused
despite everything being cracked shows that investigating
officer wanted to plug any loophole which may be there in the
case of the prosecution. Counsel urged that the investigating
officer succeeded in giving effect to his malafide intention by
planting ring of X in the pocket of pyjama of the accused.
O The fifteenth submission advanced by the learned
counsel was predicated upon the testimony of ASI Manish
Kumar Bhardwaj PW-26 and Inspector Baltej Singh PW-48.
Counsel pointed out there is a material contradiction between
the testimony of the said witness in that ASI Manish Kumar
Bhardwaj deposed that Inspector Baltej Singh was present with
him at the place of occurrence between the period 2.00 A.M. to
5.00 A.M. on 19.10.2006 whereas Inspector Baltej Singh
deposed that he left the place of occurrence at about 2.45
A.M. on 19.10.2006 to go to Sunderlal Jain Hospital and
returned to place of occurrence at about 5.15 A.M.
P The sixteenth submission advanced by the learned
counsel was that the evidence pertaining to the arrest of the
accused is shrouded with great suspicion. The first suspicious
circumstance pointed out by the counsel was that HC
Yogender PW-28, deposed that pursuant to a secret
information he along with Inspector Vimal Kishore left Delhi at
about 01.30 A.M. on 19.10.2006 to go to Rishikesh. Counsel
urged that the incident happened at around 12.45 A.M. on
19.10.2006 and that if the accused was present at Rishikesh at
01.30 A.M. then he could not have committed the crime.
Counsel further urged that the police got first information
about the crime at 01.05 A.M. and therefore the fact that the
police got the information about the whereabouts of the
accused within 25 minutes of the receipt of the information of
the crime is most improbable. The second suspicious
circumstance pointed out by the learned counsel was that
Jeetan Das PW-39, deposed that he saw the photograph of the
accused in the newspaper. Counsel urged that the claim of the
prosecution was that the accused was arrested on 19.10.2006
itself therefore where was the time with the police to get
publish the photograph of the accused in the newspaper.
Q The last submission advanced by the learned counsel
was that the statement of Y under Section 161 Cr.P.C. was
recorded after considerable delay. Counsel urged that the
statement of Y was recorded on 21.10.2006 i.e. 2 days after
the incident and that there was no reason for the investigating
officer to wait for two days before recording the statement of Y
particularly when the injuries suffered by her were simple in
nature.
92. The first submission of the learned counsel that the
accused was a juvenile on the date of offence is based upon a
fallacy that the Medical Board has opined that the accused was
aged 22 years on 18.09.2009. Had the Medical Board opined
that the accused was aged 22 years on 18.09.2009 the
submission of the learned counsel would have carried some
weight but the fact of the matter is that Medical Board has
opined that the accused was aged "above 22 years" on
18.09.2009. The MLCs Ex.PW-4/A and Ex.PW-6/A and the
report Ex.PW-12/A of the sexual examination of the accused
and the order on sentence dated 21.10.2008 passed by the
trial court throw some light on the aspect of age of the
accused on the date of offence. The MLCs Ex.PW-4/A and
Ex.PW-6/A dated 20.10.2006 and 22.10.2006 respectively
record the age of the accused as 22 years. The report Ex.PW-
12/A of the sexual examination of the accused dated
20.10.2006 records the age of the accused as 20 years. The
report further records that the accused is married and is father
of a female child. It can reasonably be assumed that the
aforesaid recordings would have been made by the doctors on
the basis of the information provided to them by the accused.
The order on sentence dated 21.10.2008 records that amicus
curiae appointed by the court to defend the accused submitted
before the trial court that the accused was aged between 19-
20 years on the date of the offence, that he is a married
person and father of a female child. It can again be assumed
without any doubt that the aforesaid submission would have
been made by the counsel on the basis of the information
provided to him by the accused. Considering the aforesaid
recordings and the fact that the accused was married and was
having a female child on the date of offence, we hold that the
accused was aged 19-20 years on the date of offence. We
may hasten to add that the accused has very cleverly not
informed about the date and the year of his birth or the place
of his birth, thereby preventing an investigation into the
primary facts with reference to the record of the Registrar of
Births and Deaths or the village panchayat, depending upon
whether the accused was born in a rural or an urban area.
This has also prevented the issue to be investigated by
examining the parents of the accused.
93. To appreciate the second submission advanced by
learned counsel, it is necessary to take a bird‟s eye view of the
proceedings of the trial court.
94. On 07.02.2007 the present case was first time listed in
the court of Additional Sessions Judge. It may be noted here
that the trial court appointed Mr.Santosh Kumar Jha, Advocate
as amicus curiae to conduct the defence of the accused. The
case was adjourned to 23.02.2007 for hearing of arguments on
framing of charges against the accused. On 23.02.2007 the
arguments on framing of charges against the accused were
heard and the case was adjourned to 06.03.2007 for order on
charge. On the next dates i.e. 06.03.2007 and 08.03.2007 the
case was adjourned. On 09.03.2007 charges were framed
against the accused. The accused pleaded not guilty to the
charges framed against him and the case was adjourned to
18.04.2007 for the recording of prosecution evidence.
95. On 18.04.2007 three witnesses namely K.Goyal PW-1,
Dr.M.Arshad PW-2 and Dr.Gaurav Singhal PW-3 were
examined. It be noted here that counsel for the accused was
not present in the court on the said date and therefore the
witnesses could not be subjected to cross-examination. The
case was adjourned to 16.05.2007 for recording of the
remaining prosecution evidence.
96. On 16.05.2007 the witnesses; Dr.Rakesh Kumar PW-4,
Gurpreet Singh PW-5 Dr.Hari Gupta PW-6, Dr.Sudha Kansal
PW-7, Dr.Seema Patni PW-8 and Dr.Uma Rani Swain PW-9 were
examined. The said witnesses were not subjected to any cross-
examination by counsel for the accused. It is most relevant to
note here that the witnesses examined till this time were
formal witnesses. None of the said witnesses deposed
anything which was incriminatory to the accused in the
present case. On the same date Gurpreet Singh PW-5, the
neighbour of the children, was examined. He was the first
witness whose evidence incriminated the accused in the
present case. At the time of the cross-examination of the
witness, the accused pleaded guilty to the charges framed
against him. He also filed an application in said regard and the
same was taken on record by the trial court. The witness was
not subjected to any cross-examination by counsel for the
accused. Thereafter the witnesses; Ramesh Kumar Aggarwal
PW-10 and Santosh Kumar Upadhyaya PW-11 were partly
examined and the case was adjourned to 26.05.2007 for
recording of the remaining prosecution evidence and the
accused was directed to rethink over the guilty plea taken by
him.
97. On 26.05.2007 the examination-in-chief of the witnesses;
Ramesh Kumar Aggarwal PW-10 and Santosh Kumar
Upadhyaya PW-11, was completed and the other witnesses
Dr.M.K.Panigrehi PW-12, Harish Kumar PW-13, Sudhir Bhalla
PW-14, Ravinder Kumar Jain PW-15, S.S.Rana PW-16 and Prem
Prakash Aggarwal PW-17 were examined. The said witnesses
were not subjected to any cross-examination by counsel for
the accused. The accused filed a second application pleading
guilty to the charges framed against him.
98. On the next dates the case was adjourned. Thereafter on
13.09.2007 witness namely HC Jai Kumar PW-19 was
examined. It be noted here that counsel for the accused was
not present in the court on the said date. The case was
adjourned to 27.09.2007. On 27.09.2007 S.K.Jha, Advocate
appraised the court that he does not want to defend the
accused and in such circumstances, Mr.K.S.Rana, Advocate
was appointed as counsel for the accused. The case was
adjourned to 01.11.2007. On 01.11.2007 witnesses; HC Pawan
Kumar PW-20 and X PW-21 were examined. X PW-21, was
cross-examined at length whereas HC Pawan Kumar was not
subjected to any cross-examination by counsel for the
accused. On 2.11.2007 and 03.11.2007 Y PW-22 and Nirmala
Aggarwal PW-23 were examined and subjected to a lengthy
cross-examination. Thereafter on 3/4/5/6/7.12.2007 the
witnesses; HC Shiv Pratap Singh PW-24, Const.Tejpal PW-25,
ASI Manish Kumar Bhardwaj PW-26, SI Ajay Kumar PW-27, HC
Yogender PW-28, Inspector Vimal Kishore PW-29, HC Sanjay
PW-30 and Const.Ramesh Chand PW-31, were examined and
subjected to cross-examination.
99. On 07.12.2007 counsel for the accused requested the
trial court to allow him to cross-examine Ramesh Kumar
Aggarwal PW-10, which request was accepted by the trial court
and Ramesh Kumar Aggarwal was recalled. On the same date,
counsel for the accused cross-examined Ramesh Kumar
Aggarwal.
100. On the next dates i.e. 16/17/18.01.2008 the witnesses;
HC Rajpal PW-32, HC Tejpal PW-33, SI Rishipal Singh PW-34, SI
Ramesh Dixit PW-35, Dr.V.K.Goyal PW-36, Anita Chhari PW-37
and SI Manohar Lal PW-38 were examined and subjected to
cross-examination. On 17.01.2008 the accused filed third
application pleading guilty to the charges framed against him.
Vide order dated 17.01.2008 the trial court rejected all the
applications filed by the accused pleading guilty to the charges
framed against him. On the same date, counsel for the
accused filed an application before the trial court seeking
recall of the witnesses; Gurpreet Singh PW-5 and Prem Prakash
Aggarwal PW-17, which application was allowed by the learned
trial court.
101. On 02.02.2008 the witness; SI Dharampal PW-40 was
examined and subjected to cross-examination. On the next
date i.e. 04.02.2008 the witnesses; Gurpreet Singh PW-5 and
Ramesh Aggarwal PW-17 were cross-examined by counsel for
the accused. It may be noted here that the order sheet dated
04.02.2008 of the trial court records that the accused was
aggrieved by the fact that the court is not taking into
consideration the plea of guilt taken by him and tried to
disrupt the proceedings of the court.
102. On the next date i.e.03.03.2008 the accused filed an
application before the trial court seeking transfer of his case
from the court which was dealing with his case to another
court on the ground that the court which is dealing with his
case is not considering plea of guilt taken by him. In such
circumstances, the matter was placed before District and
Sessions Judge. On the same date, District and Sessions Judge
sent the matter back to the concerned court in view of the
submissions made by counsel for the accused that he does not
want the case to be transferred to another court.
103. On the next date 04.03.2008 the witness namely Ajay
Goel PW-41 was examined and subjected to cross-
examination. The accused filed yet another application
pleading guilty to the charges framed against him, which
application was again rejected by the trial court. On the next
dates the witnesses HC Arun Kumar PW-42, Geeta Arora PW-
43, Santosh Kumar PW-44 and Dr.Urvashi Prasad Jha PW-46
were examined and subjected to cross-examination.
104. On 03.05.2008 the accused filed an application before
the trial court for taking on record his confessional statement
recorded by Metropolitan Magistrate under section 164 Cr.P.C.,
which application was dismissed by the trial court. On
13.05.2008 Inspector Baltej Singh PW-48 was examined and
subjected to cross-examination. The evidence of the
prosecution was closed by the prosecutor. On 02.07.2008 the
statement of the accused was recorded under Section 313
Cr.P.C. wherein he virtually admitted all the incriminating
circumstances appearing against him. Thereafter the case
kept on getting adjourned.
105. On 26.07.2008 an envelope was received in the trial
court containing the confessional statement of the accused
recorded by Metropolitan Magistrate under Section 164 Cr.P.C.
The learned trial court refused to take into account the said
statement on the ground that Metropolitan Magistrate had no
jurisdiction to record the statement of the accused under
Section 164 Cr.P.C. during the conduct of the trial.
106. On 24.09.2008 after a perusal of its order sheets the trial
court found that the witnesses; K.Goyal PW-1, Dr.M.Arshad PW-
2 and Dr.Gaurav Singhal PW-3 and Dr.Rakesh Kumar were
examined in the absence of counsel of the accused. (It may be
noted here that learned trial court has wrongly noted that
Dr.Rakesh Kumar PW-4 was examined in the absence of
counsel of the accused. The correct factual position is that the
witness was examined in the presence of the counsel of the
accused but was not subjected to any cross-examination by
counsel). In that view of the matter, trial court gave an
opportunity to the counsel for the accused to recall the said
witnesses for cross-examination, which opportunity was not
availed by counsel on the ground that the said witnesses were
formal witnesses. Thereafter the arguments were heard and
the court passed the impugned judgment and order on
sentence.
107. None can belittle the right of every accused to be fairly
and adequately represented in a criminal trial, especially
where capital sentence is involved. Counsels play an important
role in the resolution of issues in an adversarial system. Every
accused has a right to meet the case of the prosecution on
even terms. Following observations of the U.S. Supreme Court
in the decision reported as Jon Richard Argersinger v Raymond
Hamlin (1972) 407 US 25 as approved by our Supreme Court in
the decision reported as Madhav Hayawadanrao Hoskot v
State of Maharashtra (1978) 3 SCC 544 epitomize the
quintessence of this processual facet:
" The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and educated
layman has small and sometimes no skill in the
science of law. If charged with crime, he is
incapable, generally, of determining for himself
whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without
the aid of counsel he may be put on trial without a
proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even
though he has a perfect one. He requires the
guiding hand of counsel at every step in the
proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction
because he does not know how to establish his
innocence. If that be true of men of intelligence,
how much more true is it of the ignorant and
illiterate or those of feeble intellect.
The right of one charged with crime to counsel may
not be deemed fundamental and essential to fair
trials in some countries but it is in ours. From the
very beginning our State and national constitutions
and laws have laid great emphasis on procedural
and substantive safeguards designed to assure fair
trials before impartial tribunals in which every
defendant stands equal before the law. This noble
ideal cannot be realized if the poor man charged
with crime has to face his accusers without a lawyer
to assist him."
108. Fair assessment of a counsel's performance has many
inherent difficulties. Different counsels would defend not in the
same way. No mechanical rule can be applied. To our mind,
the test in the decision of US Supreme Court reported as
Strickland v Washington (1984) 466 US 68 as laid down by
Justice O'Connor is the one to be applied; as extracted from
the head note:-
A. The proper standard for judging attorney
performance is that of reasonably effective
assistance, considering all the circumstances. When
a convicted defendant complains of the
ineffectiveness of counsel's assistance, the
defendant must show that counsel's representation
fell below an objective standard of reasonableness.
Judicial scrutiny of counsel's performance must be
highly deferential, and a fair assessment of
attorney performance requires that every effort be
made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. A
court must indulge a strong presumption that
counsel's conduct fall within the wide range of
reasonable professional assistance.
B. With regard to the required showing of prejudice,
the proper standard requires the defendant to show
that there is a reasonable probability that, but for
counsel's unprofessional efforts, the result of the
proceeding would have been different. A
Reasonable probability is a probability sufficient to
undermine confidence in the outcome. A court
hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury.
C. A number of practical considerations are
important for the application of the standards set
forth above. The standards do not establish
mechanical rules; the ultimate focus of inquiry must
be on the fundamental fairness of the proceeding
whose result is being challenged. A court need not
first determine whether counsel's performance was
deficient before examining the prejudice suffered
by the defendant as a result of the alleged
deficiencies. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, that course should be
followed."
109. The issue, therefore, has to be decided on the facts as
they emerge from the record: What are the facts emerging
from the record of the present case before us? Has the
incompetence of the first counsel of the accused led the
accused to make admissions in his statement under Section
313 Cr.P.C.
110. It is most relevant to note that the accused first time
pleaded guilty at the stage of the cross-examination when
Gurpreet Singh PW-5, who was the first witness who
incriminated him in the present case was examined. The fact
that the accused did not plead guilty on the occasions when
the formal witnesses who were examined prior to the
recording of evidence of Gurpreet Singh is of utmost
significance. The same is suggestive of the fact that the act of
the accused pleading guilty to the charges framed against him
had got nothing to do with the incompetence of his counsel or
any other fact. Another fact which stands out is that the
accused kept on pleading guilty even after the change of
counsel. The accused pleaded guilty 5 times after the change
of counsel. It is most significant to note that second counsel for
the accused diligently appeared in the court, effectively cross-
examined the witnesses of the prosecution and also cross-
examined the material witnesses of the prosecution who could
not be examined on previous occasion. If the accused was
intelligent enough to come to the conclusion that his first
counsel is incompetent and defending him in a shoddy manner
he could very well also see that his second counsel was most
competent, in that he was curing all the defects which had so
far occurred in his trial. From the above narrative of the
proceedings of the trial court it is clear that the accused was
persistent in pleading guilty throughout the conduct of the
trial. The extent of persistence of the accused to plead guilty
can be gauged from the fact that he even sought to get his
case transferred from one court to another for the reason the
court dealing with his case was not considering the guilty plea
taken by him. In the light of afore-noted facts, we do not agree
that with the learned counsel for the accused that the
incompetence of his first counsel led the accused to make
admissions in his statement under Section 313 Cr..P.C.
111. Insofar as the submission of learned counsel that the
accused has been prejudiced by the facts that some of the
witnesses of the prosecution were examined in the absence of
defence counsel and that the material witnesses of the
prosecution were not subjected to any cross-examination is
concerned, suffice would it be to state that from the above
narrative of the record of the proceedings of the trial it is
crystal clear said defects were detected and cured by the
learned trial court. The testimony of none of the material
witnesses of the prosecution has gone uncontroverted. The
learned trial court gave an opportunity to counsel for the
accused to recall and cross-examine the witnesses who were
examined in the absence of defence counsel.
112. Whether a conclusion can be drawn from the PCR Form
Ex.PW-19/A, DD entry Ex.PW-20/A and the crime team report
Ex.PW-27/A that the offence was committed by more than one
person?
113. Generally, the process of criminal law sets into motion
when the informant rings up number 100 and the said call is
received at the police control room which is centralized. The
duty officer at PCR thereupon notes the information provided
by the informant in the PCR form and conveys the said
information either over the telephone or wireless to the
concerned police station where the duty officer notes down the
same in the DD register. In the process there is likelihood that
duty officer at the PCR/police station can mix up facts while
noting down the information. In the instant case, the
probability of HC Jai Kumar PW-19, the scribe of PCR form
Ex.PW-19/A, wrongly hearing or noting the word „servant‟ as
„servants‟ cannot be ruled out. The error which crept in the
PCR form Ex.PW-19/A was bound to occur in the DD entry
Ex.PW-20/A as the DD entries are prepared on the basis of the
information recorded in the PCR form. Be that as it may, the
PCR form or DD entry are not substantive piece of evidence
inasmuch as they only set into motion the involvement of the
police in the investigation. By their very nature, DD entry and
PCR form are a cryptic recording of information received at the
PCR/police station.
114. Regarding the recording that „servants be located and
interrogated‟ contained in the crime team report Ex.PW-27/A,
it is quite likely that the aforesaid recording was made by SI
Ajay Kumar PW-26, on the basis of information contained in DD
entry Ex.PW-20/A.
115. With regard to submission pertaining to vaginal swab of
Y, it be noted here that the report Ex.PW-9/B of gynecological
examination of Y records that hymen of Y was found intact.
The question which thus arises is that how come semen was
found on vaginal swab of Y when she was not subjected to
sexual intercourse?
116. The answer to the aforesaid question lies in the
testimony of X and Y. As already noted herein above, both X
and Y deposed that the accused asked Y to remove her pant. Y
stated in her cross-examination that she sat on the bed on
which the accused raped X. These two depositions explain the
presence of semen on the vaginal swab of X. Though it is not
clear from the testimony X and Y whether Y did remove her
pant or not the fact, that semen was found on her vaginal
swab shows that Y did remove her pant. The fact of the matter
is that Y removed her pant as directed by the accused and sat
on the bed on which the accused raped X after removing her
pant. The semen of the accused fell on the bed sheet spread
on the said bed and the vagina of Y got stained with the
semen which had fallen on the bed sheet as she was sitting on
the said bed and her private parts were not covered by any
cloth.
117. Pertaining to the submission that the parents of the
children and Gurpreet Singh bought time before conveying
information of the incident to the police, it be noted here that
X deposed that at around 12.00 A.M. on 19.10.2006 she heard
the noise of weeping of Y upon which she woke up and saw
that the accused was present in her room. Y deposed that the
accused left their room at around 12.30 A.M. to bring a knife
from the kitchen and that she and X went to the room of their
parents within five minutes of the accused leaving their room
after committing the crime. Ramesh Kumar Aggarwal PW-10,
deposed that X came into his room at 12.45 A.M. whereas
Nirmala Aggarwal PW-23, deposed that X came into the said
room at 12.40 A.M. From the above depositions, it is clear that
the incident in question happened between 12.00 A.M. to
12.40/12.45 A.M. and that X and Y came into the room of their
parents at 12.40/12.45 A.M. It is further apparent that
Gurpreet Singh came to the place of occuence only after
12.40/12.45 A.M. Therefore, the testimony of Gurpreet Singh
that he reached the place of occurrence between 12.20 A.M. to
12.30 A.M. is not correct. In regard to exact time of an
incident, or the time duration of an occurrence, usually, people
make their estimates by guess work on the spur of the
moment at the time of interrogation. One cannot expect
people to make very precise or reliable estimates in such
matters. It depends on the time-sense of individuals which
varies from person to person.
118. The fifth submission advanced by the learned counsel is
based upon an assumption that the parents of the children
locked the main door of the flat after the accused left their
room and went to sleep at the room situated above said flat. It
has come on evidence on record that the parents of the
children were about to sleep at the time when the accused left
their room. It is quite possible that the parents of the children
went to sleep without locking the main door which gave an
opportunity to the accused to enter the flat and to sneak in the
room of the children. What is equally possible is that the
parents of the children did lock the door but the accused did
not go to his room but instead hid in the flat.
119. As regards the second limb of the fifth submission
advanced by learned counsel, the submission assumes from
the deposition of Gurpreet Singh „that door was opened by the
parents of the children‟ to mean that the door of the room was
unlocked by the parents. The word „opened‟ used by Gurpreet
Singh could on one hand imply that the door was locked, but
on the other hand it can also imply that the door was shut. It is
quite possible that the accused shut the door while fleeing
from the flat. It is also possible that an automatic lock was
fitted on the door, the accused shut the door while fleeing and
thus the same got automatically locked. In such
circumstances, nothing much turns on the aforesaid deposition
of Gurpreet Singh.
120. With regard to the submission that Y could not have
recognized that the accused was the person who was groping
her as there was darkness in the room at that time; there is no
evidence to show that there was absolute darkness in the
room. It is possible that moonlight or some light from outside
was coming into the room through a window or ventilator or
any other source which enabled Y to recognize the accused. It
is not out of place to mention here that the accused was well
familiar to Y as he was residing in her house since a week and
hence she could recognize him in faint light.
121. A perusal of the impugned judgment shows that the sixth
submission was also advanced before the trial court and the
same was dealt by it in following terms:-
"136. The age of "Victim No.3" is about 9 years. In
my opinion at such an age, a child can not be
supposed to have any idea about attributes of act of
"rape". The course of events deposed to by her are
quite compatible with version expected of a child. She
has specifically stated that accused laid himself on
"Victim No 2" twice and difference between two acts
was half a minute. In my considered opinion that is
the natural narration of an incident by an eye witness
suited to her age. Secondly the act of sexual
intercourse having been performed with the gap of
half a minute is can not be said to be impossible."
122. The aforesaid reasoning needs to be dealt with reference
to the testimony of X and Y. X deposed that when the accused
first tried to rape her she managed to save herself by taking a
turn upon which the accused gave a knife blow on her back
and raped her. Y deposed that the accused twice committed
"bad act" with X. She clarified that by the expression "bad act"
she meant that the accused laid himself on X. The said
clarification given by Y clears the air. The said clarification
makes it clear that by expression "bad act" Y meant that the
accused laid himself on X and not that the accused raped X. It
is not out of place to mention here that Y fully corroborates the
evidence of X by stating in her cross-examination that „my
sister has tried to free her by moving herself on one side but
accused gave a knife blow to her. When my sister took a turn
on one side accused had given a knife blow to her. My sister
had taken a turn much after the accused laid on her'. From a
cumulative reading of evidence of X and Y, the sequence of
events which emerges is that the accused laid himself on X in
order to rape her but X managed to save herself by taking a
turn upon which the accused gave a knife blow on the back of
X. Thereafter the accused again laid himself on X and raped
her. It is apparent that X was raped only once.
123. With regard to the submission pertaining to the conduct
of X and Y, we note the decision of Supreme Court reported as
Rana Pratap v State of Haryana (1983) 3 SCC 327 wherein it
was observed as under:-
"Yet another reason given by the learned Sessions
Judge to doubt the presence of the witnesses was that
their conduct in not going to the rescue of the
deceased when he was in the clutches of the
assailants was unnatural. We must say that the
comment is most unreal. Every person who witnesses
a murder reacts in his own way. Some are stunned,
become speechless and stand rooted to the spot.
Some become hysteric and start wailing. Some start
shouting for help. Others run away to keep
themselves as far removed from the spot as possible.
Yet others rush to the rescue of the victim, even going
to the extent of counter-attacking the assailants.
Every one reacts in his own special way. There is no
set rule of natural reaction. To discard the evidence of
a witness on the ground that he did not react in any
particular manner is to appreciate evidence in a
wholly unrealistic and unimaginative way."
124. In the decision reported as State of Karnataka v Yellapa
Reddy AIR 2007 SC 185 Supreme Court held that unless the
reaction demonstrated by an eye-witness is so improbable or
so inconceivable from any human being pitted in such a
situation it is unfair to dub his reaction as unnatural.
125. In the decision reported as Shivappa v State of Karnataka
AIR 2008 SC 1860 Supreme Court held that when the
occurrence took place in a ghastly manner, the fact that
witnesses became dumbfounded and did not shout would not
lead to a conclusion that they are untrustworthy.
126. In the backdrop of the aforesaid dictum, it needs to be
judged that whether the conduct of X and Y in not raising an
alarm at the time of the occurrence can be termed as
unnatural.
127. As already noted herein above, the accused attacked the
children while they were sleeping. X and Y were caught
unawares. The accused was acting under a fit of rage. The
extent of trauma faced by girls X and Y can be gauged from
the deposition of X and Y that Y refused to go to the room of
parents even after the accused had left their room after
committing the crime fearing that the accused might be
present outside their room. In view of the law laid down by
Supreme Court in afore-noted cases particularly in Rana
Pratap‟s case (supra) where Court has termed the conduct of a
witness becoming speechless on witnessing an incident as
natural, it cannot be said that the conduct of X and Y in not
raising an alarm at the time of occurrence was unnatural. In
the instant case, X and Y were not just the eye-witnesses but
also the victims.
128. The answer to the fourth improbability pointed out by
learned counsel lies in the testimony of Y. Y stated in her
cross-examination that the accused returned to their room
from the kitchen within 3-4 minutes of his leaving the room.
Where was the time for X and Y to comprehend that the
accused has left their room and that they should rush to the
room of their parents in the absence of the accused?
129. This takes us to the next two submissions advanced by
the learned counsel predicated upon the statement Ex.PW-
46/A of X. X was seriously ill at the time when she wrote her
statement Ex.PW-46/A. She had undergone tracheotomy and
the tracheotomy tube was still inside her neck. It is most
reasonable to assume that the mental faculties of X were slow
at that time because of which she took some time to
remember the name of the accused. What is significant to note
that X was able to correctly state that the name of the accused
was Sanjay, that he was their domestic servant and that he
was working in their house since last one week even when she
was seriously ill. Far from showing that X was tutored to falsely
implicate the accused statement Ex.PW-46/A goes a long way
in showing that X spoke the truth at the first available
opportunity.
130. To deal with the submission that the fact that no external
injury was found on the person of the accused belies the claim
of X that she tried to fight the accused, it is necessary to
reconstruct the scene of crime. The accused was armed with a
knife. The children were caught unawares as the accused
attacked them while they were sleeping. The accused was
under a fit of rage. He was inflicting injuries on X when she was
trying to stop him. X was badly injured by the accused. X was
defenceless. In these circumstances could X have managed to
injure the accused? The answer is an emphatic NO.
131. The next question which has arisen is that whether the
conduct of the mother of the children in going with the police
to look for the accused too soon after the occurrence can be
termed as unnatural. Different people react differently in
similar situations. In the facts of the present case it is
completely comprehensible that the mother of the children
was filled with fury against the accused and that her anger for
the accused outweighed her other emotions. We find nothing
unnatural in the conduct of mother of the children in assisting
the police in arresting the deceased too soon after the
occurrence.
132. Whether the knives seized by the police from the place of
occurrence were planted?
133. It is no doubt true that the brief facts Ex.PW-1/C8
pertaining to the death of the deceased records that one knife
was recovered from the place of occurrence. What is equally
relevant to note is the fact that the other documents which
were prepared contemporaneously with the brief facts Ex.PW-
1/C8 record that two knives have been recovered from the
place of occurrence. The crime team report Ex.PW-27/A
records that two knives were recovered from the place of
occurrence. The photographs of the place of occurrence show
the presence of two knives at the place of occurrence. The
police officials who participated in the spot investigation have
deposed that two knives were recovered from the place of
occurrence. Nirmala Aggarwal PW-23, has deposed about the
presence of two knives at the place of occurrence. In the light
of aforesaid overwhelming evidence on record establishing
that two knives were recovered by the police from the place of
occurrence it is apparent that the investigating officer
committed a lapse while preparing the brief facts Ex.PW-1/C8
of the death of the deceased. It is settled law that lapses by
investigating officer are not sufficient to throw out the case of
the prosecution, if it is otherwise established by cogent
evidence.
134. Insofar as the submission predicated upon the death
report Ex.PW-1/C9 of the deceased is concerned, the recording
contained in the report that the death of the deceased was
apparently caused by a sharp weapon is not indicative of the
cluelessness of investigating officer about the weapon of
offence but shows cautious behaviour of investigating officer.
Though the fact that two knives were recovered from the place
of occurrence indicates that the weapon of offence was knife,
but the same was not a conclusive proof. The picture would
have come out clearly only after the post-mortem of the
deceased. The investigating officer wanted to be completely
sure that the knife was the weapon of offence and therefore he
did not record in the death report that the knife was the
weapon of the offence.
135. It is true that Rakesh Kumar Aggarwal PW-10, deposed
that the knife which was stuck in the neck of the deceased was
taken away by the accused. But at the same time it is also
worth mentioning that the witness stated in his cross-
examination that 'I had removed the knife from the neck of my
son and the same was left at the spot. That knife remained on
the spot when I left for the hospital. I did not find that knife
there in my house when I came back at 10.00 am from the
hospital'. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up facts,
get confused regarding sequence of events, or fill up details
from imagination on the spur of the moment. A cumulative
reading of the aforesaid deposition made by Rakesh Kumar
Aggarwal PW-10, shows that he got carried away while
deposing facts and imagined that the knife which was stuck in
the neck of the deceased was taken away by the accused.
136. To deal with the submission predicated upon the
deposition of Gurpreet Singh PW-5, relating to the knives
recovered from the place of occurrence, it is necessary to
closely scrutinize the evidence of Gurpreet Singh.
137. Gurpreet Singh PW-5, deposed that he went to the room
where the occurrence took place but did not see any knife
there. He stated in his cross-examination that he went to the
said room after the arrival of the police at the place of
occurrence. It is possible that the police seized the knife which
was found in the room where the occurrence took place by the
time Gurpreet Singh went there. It is also possible that
Gurpreet Singh just did not see that a knife is lying in the
room. The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person's mind
whereas it might go unnoticed on the part of another.
138. With regard to the submission that no attempt was made
by the police to lift the finger prints from the knives recovered
from the place of occurrence, it is necessary to note the
testimony of ASI Manish Kumar Bhardwaj PW-26 and SI Ajay
Kumar PW-27.
139. From the narrative of the investigation given by us in the
preceding paras, it is evident that the crime team reached the
place of occurrence within few hours of occurrence. ASI Manish
Kumar Bhardwaj PW-26, deposed that he inspected the place
of occurrence, found a chance print from there and developed
the same. SI Ajay Kumar PW-27, Incharge, Crime Team,
deposed that he inspected the place of occurrence and
prepared the report Ex.PW-27/A on the basis of the said
inspection. Neither any question was put to the said witnesses
in their cross-examination regarding the lifting of finger prints
from knives in question nor was any suggestion given to them
that they did not make any attempt to lift the fingerprints from
the knives in question. Having given no opportunity to the
witnesses to explain the circumstance pertaining to lifting of
finger prints from the knives in question no adverse inference
can be taken against the prosecution. In taking the said view,
we are supported by the decisions of Supreme Court reported
as Rahim Khan v Khurshid Ahmad AIR 1975 SC 290, State of
UP v Anil Singh 1988 (Supp) SCC 686 and Sunil Kumar v State
of Rajasthan (2005) 9 SCC 298.
140. Whether the recovery of the clothes at the instance of
the accused is doubtful?
141. Counsel for the accused harped on the fact that the case
set up by the prosecution with respect to recovery of clothes is
fallacious as it was not possible for the accused to have taken
a bath before fleeing from the place of occurrence. The charge
sheet filed against the accused contains a recording that after
committing the crime the accused took a bath, changed his
clothes, threw the clothes changed by him on the roof and fled
from the place of occurrence. There is no evidence to show
that the accused took bath before fleeing from the place of
occurrence. However the first disclosure statement made by
the accused records that the accused took bath before fleeing
from the place of occurrence. It is possible that the accused
washed his face and hands after committing the crime and
referred his act of washing his face and hands as taking a bath
in his disclosure statement. Be that as it may, the fact of the
matter is that the witnesses to the recovery namely, Prem
Prakash Aggarwal PW-17, SI Rishipal Singh PW-34, SI Ramesh
Dixit PW-35 and Inspector Baltej Singh PW-48, have
corroborated each other on material particulars. The said
witnesses were subjected to lengthy cross-examination but
nothing could be elicited there from which could cast a doubt
on their credibility.
142. This takes us to the submissions advanced by learned
counsel with respect to the recovery of ring of X at the
instance of the accused.
143. Is the act of the accused leaving behind the ring of X in
the pocket of his pyjama improbable? Though we agree with
the learned counsel that the accused in all probability would
have removed the ring from the finger of X for pecuniary gain
it is possible that the accused panicked after committing the
crime and forgot to take out the ring from the pocket of his
pyjama before fleeing from the place of occurrence. The first
concern of the accused after committing the crime would have
naturally been to escape the place of occurrence and it is
completely comprehensible that he forgot to take out the ring
from the pocket of his pyjama in his hurriedness to escape
from the place of occurrence. We thus find nothing improbable
in the act of the accused in leaving the ring of X in the pocket
of his pyjama.
144. However, we do agree with the learned counsel that the
facts that the accused did not say a word about the ring of X in
his first disclosure statement; that the second disclosure
statement wherein the accused confessed about removing the
ring of X was made after recording of the statement of X under
section 161 Cr.P.C. i.e. after the time when the factum of
removal of ring of X by the accused came to the knowledge of
the police and that the police did not find any ring in the
pocket of pyjama of the accused at the time of the seizure of
the pyjama are strong pointers to the fact that recovery of ring
of X at the instance of the accused is tainted. Therefore, we do
not intend to use the fact of recovery of ring of X at the
instance of the accused as an incriminating circumstance
against the accused. However, we may add that it is settled
law that where there are eye witnesses to an incident whose
testimonies inspire confidence, minor issues pertaining to
recoveries etc. have to be considered as supporting evidence,
unless there is evidence of planting, for planting always is a
serious issue.
145. Before proceeding to consider the submission predicated
upon the FSL report Ex.PW-37/A we need to note the law on
the subject, pertaining to the testimony of a person who claims
to be an expert on an issue of scientific or technical
knowledge.
146. In Frye v. United States 54 App. D.C. 46 (1923) the Court
of Appeals for the District of Columbia described the device
concerning the admissibility of evidence of an expert, on a
subject of science, technology or special knowledge, in the
following words:
"Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this
twilight zone the evidential force of the principle
must be recognized, and while courts will go a long
way in admitting expert testimony deduced from a
well-recognized scientific principle or discovery, the
thing from which the deduction is made must be
sufficiently established to have gained general
acceptance in the particular field in which it
belongs."
147. Since evidentiary reliability is based on scientific validity,
the standard under which the test of reliability of the evidence
is: Whether the principles on which the testimony is based has
general acceptance in the field to which it (the opinion of the
expert) belongs and that the expert has based his opinion
keeping into account the said principles.
148. Thus, an expert opinion based on a methodology, which
diverges significantly from the procedures accepted by
recognized authorities in the field would not be evidentially
reliable.
149. Pertaining to evidentiary reliability of an expert opinion,
the Frye's test has three fundamental components:
(a) It has to be satisfactorily shown that the expert
evidence/opinion relates to a scientific, technical or
other specialized knowledge and that the theory or
technique applicable to the science, technology or
specialized field is based on a methodology,
hypothesis or tests which has/have been subjected
to peer review and publication i.e. there exists
standards controlling the techniques' operation and
the same are generally accepted and additionally
that it has been accepted that the relationship of the
technique to methods has been established to be
reliable keeping into account known or potential rate
of error.
(b) The author of the opinion qualifies to be called an
expert; by knowledge, skill, experience, training or
education. It has to be kept in mind that the level of
expertise may not affect the admissibility of
evidence of the expert but certainly affects the
weight to be accorded to the opinion of the expert.
(c) The proffered experts' testimony must reveal that
the methodology, hypothesis or techniques
applicable and the theory behind the principles
applicable have been applied by the expert and that
the expert is mindful of the known or potential rate
of error in the derivative of the technique or
methodology to the subject thereof. (Emphasis
supplied)
150. An expert should ensure that the opinion prepared by
him meets the standards laid down in Fyre‟s test.
151. With regard to hair examination, it is essential that
known hair sample meets appropriate standards in that there
are sufficient number of hair and that hair are representative
of any variation in body of the donor. An ideal hair sample
ought to have 50-100 randomly selected hair from a particular
region of body. (See Forensic Taphonomy by William D
Hugland and Marcella H Song and Wiley Encyclopaedia).
151. In the instant case, the task before Anita Chhari was to
compare hair seized from the place of occurrence with the
scalp hair of the accused. The number of strands of scalp hair
of the accused provided by the investigating officer to FSL was
inadequate. No conclusive opinion could have resulted from
the examination of scalp hair of the accused because of
inadequacy of the number of the strands. In that view of the
matter, Anita Chhari should have asked the investigating
officer to provide her with more strands of scalp hair of the
accused. Be that as it may, Anita Chhari conducted the
examination of the scalp hair of the accused despite the fact
that the same did not meet the standards required for a
successful examination. The results of the examination of
scalp hair of the accused came as expected. Since sample of
scalp hair of the accused did not meet the required standards
no conclusive opinion could be given by Anita Chhari on the
aspect that whether the hair seized from the place of
occurrence was similar to the scalp hair of the accused. The
results of the hair examination conducted by Anita Chhari did
not in any way help the prosecution. Anita Chhari only ended
up wasting her time and the resources of FSL.
152. Forensic science plays an important role in the criminal
justice system. It adjoins a missing link or strengthens a weak
link in the chain of investigation by furnishing an impartial
evidence, thereby helping the court to come to a conclusion
regarding the perpetrator of a given crime. It is expected that
in future the officials of FSL would not act in a mechanical
manner and apply their minds before proceeding to conduct
examination of the exhibits provided to them. If the sample
provided is inadequate or the suspected material is
inadequate, the report should so state without any opinion
being expressed.
153. The submission of learned counsel that the FSL report
Ex.PW-37/A establishes the presence of somebody else at the
place of occurrence is based upon a fallacy that the hair seized
from the spot was found to be dissimilar in most of their
morphological and microscopical characteristics from the scalp
hair of the accused inasmuch as exhibit 25 was wrongly typed
as exhibit 24 in the report. We have already held in preceding
paras that the error which had crept in the FSL report Ex.PW-
37/A was that expression „pubic hair of accused‟ was wrongly
typed as „scalp hair of the accused‟. Thus, the aforesaid
submission of learned counsel deserves no consideration.
154. Whether the application dated 20.10.2006 made by the
Investigating Officer before the court of Metropolitan
Magistrate is suggestive of the fact that the police had malice
against the accused. The answer is No. Rather it is indicative of
the fact that the investigating officer did not vigilantly read the
disclosure statement of the accused and was looking for the
answers unmindful of the fact that the said answers have been
supplied by the accused in his disclosure statement.
155. What is the effect of the contradiction pointed out by the
learned counsel between the testimony of ASI Manish Kumar
Bhardwaj PW-26 and Inspector Baltej Singh PW-48. There must
have been mayhem at the place of occurrence after the
incident. Lot many police officers arrived at the place of
occurrence. Inspector Baltej Singh PW-48, was coming/going
to/from the place of occurrence. In such mayhem, it is most
possible that ASI Manish Kumar Bhardwaj PW-26, did not
notice that Inspector Baltej Singh has left the place of
occurrence for a brief period. Be that as it may, it is settled
legal position that minor contradictions which do not hit at the
root of the case of the prosecution are to be ignored by the
courts.
156. With regard to the submission pertaining to the arrest of
the accused, it is necessary to cumulatively read the testimony
of the police officers who were part of the police team which
arrested the accused i.e. HC Yogender PW-28 and Inspector
Vimol Kishore PW-29. Inspector Vimal Kishore deposed that he
along with HC Yogender left Delhi at about 04.00/04.30 A.M. on
19.10.2006 to go to Rishikesh to arrest the accused. It is thus
apparent that an innocuous error has been committed by HC
Yogender in deposing the time when the police party left Delhi
to go to Rishikesh to arrest the accused.
157. Insofar as the receipt of secret information by the police
about the whereabouts of the accused is concerned, the
sequence of events which led to the arrest of the accused is
that Nirmala Aggarwal PW-23, the mother of the children, took
the police to the residence of Jeetan Das PW-39, the person
who had recommended the accused to her. Jeetan Das in turn
took the police to the residence of one Subash, the brother-in-
law of the accused and the person who recommended the
accused to him. Thereafter the police party proceeded to
Rishikesh to arrest the accused. From the said conspectus of
facts, it is apparent that the information about the
whereabouts of the accused was provided to the police by
Subash and not by a secret informer. This brings out the
tendency of the police to claim credit for every break through
that happens in a case. In the instant case, the overt
statement is inconsequential as the accused has admitted
when questioned under Section 313 Cr.P.C. that he was
arrested at Rishikesh at 6:30 PM on 19.10.2006.
158. Pertaining to the submission that the photograph of the
accused was got published by the police in the newspaper, it
be noted here that the incident happened on the intervening
night of 18/19.10.2006. The police got information of the
incident at about 1.05 A.M. on 19.10.2006. The police could
not have got published the photograph of the accused before
the morning of 20.10.2006. A perusal of the record of the trial
court shows that the accused was produced before the
Magistrate on 20.10.2006. It is apparent that PW-39 has
mixed up facts.
159. Has there been a delay in recording the statement of Y
under Section 161 Cr.P.C.? The medical evidence adduced by
the prosecution sheds some light on the said aspect. Y had
undergone tracheotomy as evident from the perusal of the
MLC Ex.PW-2/B of Y. The endorsement dated 19.10.2006 made
on the application Ex.PW-48/F by the doctor that 'Patient Y is
very anxious and has been anti-xilotius. She would be not fit
for statement' shows that Y was not fit to give a statement till
19.10.2006. The endorsement further brings out that Y was in
a disturbed mental state till 19.10.2006. In the light of the
above facts, the fact that the police recorded the statement of
Y on 21.10.2006 is completely justifiable.
160. Having dealt with the submissions advanced by the
learned counsel, we proceed to adjudicate upon the most
important question involved in the present case: Whether the
accused is guilty of the offence (s) with which he is charged
with.
161. In dealing with the said question, we first delineate the
salient features of the case of the prosecution.
162. The first feature is that X and Y are injured witnesses.
When the evidence of an injured eye-witness is to be
appreciated, the under-noted legal principles enunciated by
the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and
place of the occurrence cannot be doubted unless there are
material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must
be believed that an injured witness would not allow the real
culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary
value and unless compelling reasons exist, their statements
are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or minor
contradictions.
(e) If there be any exaggeration or immaterial embellishments
in the evidence of an injured witness, then such contradiction,
exaggeration or embellishment should be discarded from the
evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be
taken into consideration and discrepancies which normally
creep due to loss of memory with passage of time should be
discarded.
163. The second feature is that X is a victim of a sexual
offence. The appreciation which should be adopted by a court
while evaluating the evidence of a victim of sexual offence is
clearly discernible from the decision of Supreme Court
reported as Ranjit Hazarika v State of Assam (1998) 8 SCC 635
wherein it was observed as under:-
"The courts must, while evaluating evidence, remain
alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court
just to make a humiliating statement against her
honour such as is involved in the commission of rape
on her. In cases involving sexual molestation,
supposed considerations which have no material
effect on the veracity of the prosecution case or
even discrepancies in the statement of the
prosecutrix should not, unless the discrepancies are
such which are of fatal nature, be allowed to throw
out an otherwise reliable prosecution case. The
inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression
are factors which the courts should not overlook. The
testimony of the victim in such cases is vital and
unless there are compelling reasons which
necessitate looking for corroboration of her
statement, the courts should find no difficulty to act
on the testimony of a victim of sexual assault alone
to convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon
the same, as a rule, in such cases amounts to adding
insult to injury. Why should the evidence of a girl or
a woman who complains of rape or sexual
molestation be viewed with doubt, disbelief or
suspicion? The court while appreciating the evidence
of a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she
is a witness who is interested in the outcome of the
charge leveled by her, but there is no requirement of
law to insist upon corroboration of her statement to
base conviction of an accused. The evidence of a
victim of sexual assault stands almost on a par with
the evidence of an injured witness and to an extent
is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not
found to be self-inflicted, is considered to be a good
witness in the sense that he is least likely to shield
the real culprit, the evidence of a victim of a sexual
offence is entitled to great weight, absence of
corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial
credence in every case of rape. Corroboration as a
condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances. It
must not be overlooked that a woman or a girl
subjected to sexual assault is not an accomplice to
the crime but is a victim of another person's lust and
it is improper and undesirable to test her evidence
with a certain amount of suspicion, treating her as if
she were an accomplice. Inferences have to be
drawn from a given set of facts and circumstances
with realistic diversity and not dead uniformity lest
that type of rigidity in the shape of rule of law is
introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot
cling to a fossil formula and insist upon corroboration
even if, taken as a whole, the case spoken of by the
victim of sex crime strikes the judicial mind as
probable."
164. The third feature is that X and Y have corroborated each
other in material particulars.
165. The fourth feature is that X and Y have withstood the
cross-examination.
166. The fifth feature is that X and Y have been corroborated
by the medical evidence adduced by the prosecution in the
present case. The injuries found on the person of the
deceased, X and Y are in harmony with their depositions in
said regard. The deposition of X and Y that the accused had
raped her is corroborated by the testimony of Dr.Uma Rani
Swain PW-9 that hymen of X was found ruptured, a fresh injury
was found in the fourchette (area beneath the vaginal opening
where labia minora meet) and that the said injury is
suggestive of the fact that X was subjected to forced sexual
intercourse.
167. The sixth feature is that the sexual examination report
Ex.PW-12/A of the accused dated 20.10.2006 records that no
smegma was found in the external genetilia of the accused
which establishes that the accused had performed sexual
intercourse around the date of offence.
168. The seventh feature is that the scientific evidence
adduced by the prosecution also corroborates the case of the
prosecution. The facts that semen was detected on vaginal
swab of X and that blood and human semen was detected on
the clothes recovered at the instance of the accused
corroborate the case of the accused.
169. The eighth feature is that the parents of the children
deposed that X and Y deposed that immediately after the
occurrence X and Y came to their room and told them that the
accused has committed the crime. It is also relevant to note
that Gurpreet Singh PW-5 deposed that he went to the place
of occurrence on hearing the alarm raised by the parents of
the children, which alarm was raised by them soon after the
occurrence. In this regards, reference be made to following
observations of this Division Bench of this court in Criminal
Appeal No.453/2005 Sunny @ Bhola v State decided on
18.09.2009:-
"The principle of law embodied in Section 6 of the
Evidence Act is usually known as the rule of res
gestae recognized in English law. The essence of the
doctrine is that a fact which, though not in issue, is
so connected with the fact in issue as to form part of
the same transaction. that it becomes relevant by
itself. This rule is, roughly speaking, an exception to
the general rule that hearsay evidence is not
admissible. The rationale in making certain
statement or fact admissible under Section 6 of the
Evidence Act is on account of the spontaneity and
immediacy of such statement or fact in relation to
the fact in issue. But it is necessary that such fact or
statement must be a part of the same transaction. In
other words, such statement must have been made
contemporaneous with the acts which constitute the
offence or at least immediately thereafter. But if
there was an interval, however slight it may be,
which was sufficient enough for fabrication then the
statement is not part of res gestae.(See the
decisions of Supreme Court reported as Gentela
Vijayavardhan Rao v. State of A.P. 1996 (6) SCC 241
and AIR 1999 SC 3883 Sukhar v. State of Uttar
Pradesh)
The principles relatable to the rule of res gestae are
four in number:
1. The declarations (oral or written) must relate to
the act which is in issue or relevant thereto; they are
not admissible merely because they accompany an
act. Moreover the declarations must relate to and
explain the fact they accompany, and not
independent facts previous or subsequent thereto
unless such facts are part of a transaction which is
continuous.
2. The declarations must be substantially
contemporaneous with the fact and not merely the
narrative of a past.
3. The declaration and the act may be by the same
person, or they may be by different persons, e.g.,
the declarations of the victim, assailant and by-
standers. In conspiracy, riot and the declarations of
all concerned in the common object are admissible.
4. Though admissible to explain or corroborate or to
understand the significance of the act, declarations
are not evidence of the truth of the matters stated."
170. Tested on the aforesaid anvil of law, it is apparent that
there is spontaneity and immediate proximity as also
continuity between the occurrence and the statements made
by X and Y to their parents as also the statement made by the
parents of the children to Gurpreet Singh. Therefore, the
statements of the parents of X and Y and the statement of
Gurpreet Singh are admissible under Section 6 of the Evidence
Act. The necessary corollary of the above conclusion is that
the fact that X and Y implicated the accused as the assailant
too soon after the occurrence attaches a ring of truth to their
evidence.
171. The ninth feature is that the fact that X implicated the
accused as the assailant in her statement Ex.PW-46/A, which
statement was made by her when she was seriously ill goes a
long way in suggesting the culpability of the accused.
172. The tenth feature is that save and except the factum of
removal of the ring from the finger of X the accused admitted
all other incriminating facts appearing against him. In the
decision reported as State of Maharashtra v Sukhdeo Singh &
Anr (1992) 3 SCC 700 wherein Supreme Court observed as
under:-
That brings us to the question whether such a
statement recorded under Section 313 of the Code
can constitute the sole basis for conviction. Since no
oath is administered to the accused, the statements
made by the accused will not be evidence Stricto
sensu. That is why Sub-section (3) says that the
accused shall not render himself liable to
punishment if he gives false answers. Then comes
Sub-section (4) which reads:
(4). The answers given by the accused
may be taken into consideration in such
inquiry or trial, and put in evidence for or
against him in any other inquiry into, or
trial for, any other offence which such
answers may tend to show he had
committed.
Thus the answers given by the accused in response
to his examination under Section 313 can be taken
into consideration in such inquiry or trial. This much
is clear on a plain reading of the above sub-section.
Therefore, though not strictly evidence, Sub-section
(4) permits that it may be taken into consideration in
the said inquiry or trial. See State of Maharashtra v.
1968CriLJ95 . This Court in the case of Hate Singh v.
State of Madhya Bharat 1953 Cri. L.J. 1933 held that
an answer given by an accused under Section 313
examination can be used for proving his guilt as
much as the evidence given by a prosecution
witness. In Narain Singh v. State of Punjab
[1963]3SCR678 this Court held that if the accused
confesses to the commission of the offence with
which he is charged the Court may, relying upon that
confession, proceed to convict him. To state the
exact language in which the three-Judges Bench
answered the question it would be advantageous to
reproduce the relevant observations at pages 684-
685:
Under Section 342 of the Code of the
Criminal Procedure by the first sub-
section, insofar as it is material, the Court
may at any stage of the enquiry or trial
and after the witnesses for the
prosecution have been examined and
before the accused is called upon for his
defence. shall put questions to the
accused person for the purpose of
enabling him to explain any circumstance
appearing in the evidence against him.
Examination under Section 342 is
primarily to be directed to those matters
on which evidence has been led for the
prosecution to ascertain from the accused
his version or explanation if any, of the
incident which forms the subject-matter
of the charge and his defence. By Sub-
section (3), the answers give by the
accused may "be taken into
consideration" at the enquiry or the trial.
If the accused person in his examination
under Section 342 confesses to the
commission of the offence charged
against him the court may, relying upon
that confession, proceed to convict him,
but if he docs not confess and in
explaining circumstance appearing in the
evidence against him sets up his own
version and seeks to explain his conduct
pleading that he had committed no
offence, the statement of the accused can
only be taken into consideration in its
entirety."
173. The afore-noted features clinch the issue that the
accused is the perpetrator of the crime.
174. Arguments pertaining to the correctness of the
punishment awarded by the learned Trial Judge: - Under this
head, following 4 submissions were advanced by the learned
counsel for the accused:-
A The first submission advanced by the learned counsel for
the accused was with regard to the conviction of the accused
under Section 302 IPC for committing the murder of the
deceased. Counsel urged that the accused attacked the
deceased on a spur of moment and that he neither had any
intention to cause death of the deceased nor knowledge, that
injury inflicted by him would cause the death of the deceased,
could be attributed to him. The gist of the submission of
learned counsel was that clauses „firstly‟ and „thirdly‟ do not
apply in the present case. With respect to clause „thirdly‟ of
Section 300 IPC counsel pressed into service the decision of
Supreme court reported as Virsa Singh v State of Punjab AIR
1958 SC 465. With reference to the said decision, counsel
urged that the body part which was targeted by an accused
while inflicting injury and the ferocity of the blow given by the
accused are the factors which are to be taken note of while
determining whether clause „thirdly‟ applies in a given case.
Counsel urged that in the instant case knife injury was
inflicted by the accused in submandibular region of the
deceased. Counsel urged that the skin covering the said
region is very soft and therefore even a gentle blow on the
skin covering the said region would result in deep injuries to
the organ situated in the said region. The counsel culminated
his argument by contending that thus it cannot be said with
utmost certainty that the blow given by the accused on the
neck of the deceased was ferocious and therefore clause
„thirdly‟ cannot be applied in the present case. In a nutshell,
the submission of the counsel was that the offence which can
be made out against the accused is an offence punishable
under Section 304 Part II IPC. Alternatively, counsel urged that
at best the offence which stands made out is the offence
punishable under Section 304 Part I IPC.
B The second submission advanced by the learned counsel
was with regard to the conviction of the accused under
Section 307 IPC for attempting to murder X. Counsel urged
that in order to convict an accused under Section 307 IPC it is
essential to show that the accused had an intention to cause
„murder‟ of the victim. Counsel urged that the accused
inflicted injuries on the person of X in order to rape her and
therefore intention to cause death of X cannot be attributed to
the accused. Thus, the offence under Section 307 IPC for
causing the death of X is not made out against the accused.
As per counsel, the offence which stands made out against the
accused is the offence of causing hurt to X by dangerous
weapons i.e. an offence punishable under Section 324 IPC.
C The third submission advanced by the learned counsel
was with regard to the conviction of the accused under
Section 307 IPC for attempting to murder Y. Counsel urged
that the accused inflicted injuries on person of Y in order to
prevent her from obstructing him from raping X and therefore
intention to cause death of Y cannot be attributed to the
accused. Counsel urged that the nature of injuries inflicted by
the accused on the person of Y itself shows that the accused
did not have any intention to murder Y. Counsel urged that the
evidence adduced by the prosecution shows following two
injuries on the person of Y: - (i) lacerated wound on the neck
of Y and (ii) injuries on the fingers of Y. Counsel urged that
lacerated wounds are usually inflicted by blunt instruments. As
per counsel, the fact that lacerated wound was found on neck
of Y suggests that blunt side of the knife was used by the
accused to inflict an injury on the neck of Y which is indicative
of the fact that the accused attacked Y to injure her and not to
cause her death. Counsel then urged that injuries found on
fingers of Y are suggestive of the fact that she sustained said
injuries while defending herself. Counsel lastly urged that the
fact that the doctor opined that the injuries found on the
person of Y were simple in nature clinches the issue that the
accused did not intend to cause the death of Y. Thus, the
offence under Section 307 IPC for causing the death of Y is not
made out against the accused and that the offence which
stands made out against the accused is the offence of causing
hurt to Y i.e. an offence punishable under Section 323 IPC.
D The last submission advanced by the learned counsel
was that the learned trial court committed a grave illegality in
awarding death sentence to the accused. Counsel urged that
the present case does not fall in the category of "rarest of rare
cases" and thus the accused does not deserve death penalty.
175. Two offences involve the killing of a person. They are the
offences of culpable homicide and the more heinous offence of
murder. What distinguishes these two offences, is the
presence of special mens rea which consists of four mental
attitudes which are stated in Section 300 IPC as distinguishing
murder from culpable homicide. Unless the offence can be
said to involve at least one such mental attitude it cannot be
murder. The first clause says that culpable homicide is
murder if the act by which the death is caused is done with
the intention of causing death. The second clause deals with
acts done with the intention of causing such bodily injury as
the offender knows to be likely to cause death of the person to
whom injury is caused. The mental attitude here is two-fold.
There is first the intention to cause bodily harm and next there
is the subjective knowledge that the death will be the likely
consequence of the intended injury. The third clause discards
the test of subjective knowledge. It deals with acts done with
the intention of causing bodily injury to a person and the
bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death. In this clause the
result of the intentionally caused injury must be viewed
objectively. If the injury that the offender intends causing and
thus causes is sufficient to cause death in the ordinary course
of nature, the offence is murder and it is immaterial whether
the offender intended causing death or not and whether the
offender had a subjective knowledge of the consequences of
the act or not. The fourth clause comprehends dangerous act
which must in all probability cause death.
176. The academic distinction between murder and culpable
homicide not amounting to murder has vexed the Courts for
more than a century. The safest way of approach to the
interpretation and application of these provisions seems to be,
to keep in focus the key words used in the various clauses of
Section 299 and 300.
177. From a survey of case law on the point it emerges that
whenever a Court is confronted with the question whether the
offence is murder or culpable homicide not amounting to
murder on the facts of a case it will be convenient for it to
approach the problem in three stages. The question to be
considered at the first stage would be, whether the accused
has done an act by doing which he has caused the death of
another. Proof of such casual connection between the act of
the accused and the death leads to second stage for
considering whether that act of the accused amounts to
"culpable homicide" as defined in Section 299. If the answer
to this question is prima facie found in the affirmative, the
stage for considering the operation of Section 300 is reached.
This is the stage at which the Court should determine whether
the fact proved by the prosecution bring the case within the
ambit of any of the four clauses of the definition of murder
contained in Section 300. If the answer to this question is in
the negative the offence would be culpable homicide not
amounting to murder, punishable under the first or the second
part of Section 304 depending respectively on whether the
second or third clause of Section 299 is applicable. If this
question is found in the positive, but the case comes within
any of the exceptions enumerated in Section 300, the offence
would still be culpable homicide not amounting to murder,
punishable under the first part of Section 304. The above are
only broad guidelines and not cast iron imperatives. But
sometimes the facts are so intertwined and the second and
the third stages are so telescoped in each other, that it may
not be convenient to give a separate treatment to the matters
involved in the second and third stages.
178. Intent which is a state of mind can never be precisely
proved by direct evidence as a fact; it can only be deduced or
inferred from other facts. The nature of the weapon used,
body part of the victim which was targeted by the accused,
amount of force used by the accused, number of blows given
by the accused, antecedent and subsequent conduct of the
accused, the amount of preparation done by the accused are
some of the factors from which intention can be determined.
179. In the instant case, the accused gave "three" knife blows
on a vital part of body of the deceased i.e. neck of the
deceased which is evident from the post-mortem report
Ex.PW-1/A of the deceased which records that three injuries
were found on the neck of the deceased. Every sane person
must be presumed to intend the result that his actions would
normally produce. The fact that three knife blows were given
by the accused on a vital organ of the deceased are very
strong pointers to show that the accused intended to cause
the death of the deceased. Thus, the act of the accused
clearly falls under clause „firstly‟ of Section 300 IPC. In the
decision reported as Inder Singh v State 1995 Cri LJ 2627 (SC)
the accused had given a spear blow on the neck of the
deceased when he had fallen down on the ground. It was held
by Supreme Court that the said act of the accused clearly
showed his intention to cause the death of the deceased and
his conviction for murder required no interference.
180. Not only that, the act of the accused of inflicting three
knife injuries on the neck of the deceased was as imminently
dangerous that the accused must be presumed to have known
that in all probability it would cause death of the deceased. A
knowledge that the natural and probable consequences of an
act would be death is sufficient to bring culpable homicide
within the ambit of clause fourthly of Section 300 IPC.
Therefore, the conviction of the accused under Section 302
IPC for causing the death of the deceased is most proper.
181. To bring an offence within the ambit of Section 307 IPC
the prosecution must establish actus reus and mens rea. The
requisite intention be of any of the kinds referred to in Section
300 IPC and that knowledge being the alternative to intention
in clause „fourthly‟ of Section 300, if established, it too would
be sufficient. How do we gather the intention? It has to be
gathered from the nature of weapon used, the number injuries
inflicted, manner in which the weapon was used, seriousness
of the resultant injury, severity of the blow, part of the body
where injuries are inflicted and antecedent and subsequent
conduct of the accused.
182. The report Ex.PW-8/A of X records that ten wounds were
found on person of X meaning thereby, that ten knife blows
were inflicted by the accused on the person of X. The case
note Ex.PW-11/C of X records that wounds were found on the
neck, chest and back of X. X had to undergo tracheotomy. The
doctor opined that the injuries found on the person of X were
„dangerous‟ in nature. Both X and Y deposed that the accused
checked whether X is alive or dead before leaving the scene of
crime. An irresistible conclusion which results from the above
facts is that the accused attacked X with an intention to cause
her death or that he can be presumed to have known that
death of X was the natural and probable result of his act.
183. Insofar as the conviction of the accused under Section
307 IPC pertaining to the injuries caused to Y is concerned, it
may be noted here that the case note Ex.PW-11/A records that
injuries were found on neck, fingers and right shoulder of Y.
Except for the said document, no other medical document
pertaining to Y talks about the injury on the right shoulder of
Y. There is no empirical data to show the depth of wound
found on the neck of Y or the extent of damage suffered by Y
because of the said injury. It is true that tracheotomy was
undergone by Y as recorded in the MLC Ex.PW-2/B of Y but it
cannot be overlooked that sometimes there is no need to
perform a tracheotomy but the same is done by the doctors as
a precautionary measure. In such circumstances, we find it
difficult to hold that the accused injured Y with an intention to
cause her death or that he can be presumed to have known
that death of Y would be caused because of said injury.
184. Now the question which arises is that whether the
accused is guilty of causing „simple hurt‟ or „grievous hurt‟ to
Y.
185. Section 319, IPC defines the term hurt. Under Section
319, I.P.C., whoever causes bodily pain, disease or infirmity to
any person is said to cause hurt. Any hurt falling under any of
the clauses under Section 320, IPC is grievous hurt. A person
therefore, cannot be said that he has caused grievous hurt
unless the hurt caused is one of the kinds of hurt specified
under Section320, I.P.C. Therefore it is the duty of the Court to
give a finding on its own whether the hurt was simple or
grievous. The Court is not concerned with the classification
made by a doctor as to whether the hurt was simple or
grievous. A doctor is to describe the facts in respect of the
nature of injury and the Court is to decide whether the nature
of the injury described by the doctor comes within any of the
clauses of Section 320, I.P.C. Section 320 reads as follows:
"Grievous hurt: The following kinds of hurt only are
designated as "grievous":
First - Emasculation
Secondly - Permanent privation of the sight of either
eye.
Thirdly - Permanent privation of the hearing of either
ear.
Fourthly - Privation of any member of joint.
Fifthly - Destruction or permanent imparing of the
powers of any member or join.
Sixthly - Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or
tooth.
Eighthly - Any hurt which endangers life or which
causes the sufferer to be during the space of twenty
days in severe bodily paid, or unable to follow his
ordinary pursuits."
186. The situs of the injury inflicted upon the victim goes
a long way in determining that whether a hurt is a „grievous
hurt‟ in terms of clause eighthly of Section 320 IPC. In taking
this view, we are supported by decision of Supreme Court
reported as Niranjan Singh v State of UP AIR 2007 SC 2434
wherein it was observed as under:-
"The facts of the instant case show that Section 397
IPC was rightly applied. Any hurt which endangers
life is a grievous hurt. It would be seen that one of
the injuries was caused just below the nipple. The
term "endangers life" is much stronger than the
expression "dangerous to life". Apart from that in the
provision "attempt" to cause grievous hurt attracts
its application. The question whether the accused
attempted to cause death or grievous hurt would
depend upon the factual scenario. In the instant case
knife blow was given on the chest just below the
nipple. Considering the place where injury was
inflicted i.e. on the chest the High Court was right in
its view about the applicability of Section 397 IPC."
187. In the instant case, one of the injuries was inflicted by
the accused on the neck of Y. The case summary Ex.PW-11/B
of Y records that the wounds found on the person of Y were
„stitched in layers‟ which implies that the wounds were not
superficial but deep in nature.
188. When the afore-noted two facts are considered in the
light of decision of Supreme Court in Niranjan Singh‟s case
(supra) the result is that the accused is guilty of causing
grievous hurt by the use of a dangerous weapon or dangerous
means to Y i.e. an offence punishable under Section 326 IPC.
189. This takes us to the last leg of the judgment that
whether the death sentence has been rightly awarded to the
accused.
190. This court discussed the imposition of death sentence in
Death Reference No.1/2009 titled as State v Shree Gopal Maini
decided on 31.08.2009 in following terms:-
"1. To attract the penalty of death, it has to be
established that the case falls in the category of the
rarest of the rare. Thus, the Court has not to stop if it
finds the offence to be in the category of being rare.
The Court has to see further; whether it is in the
category of the rarest of the rare i.e. an extreme form
of being extremely rare, within the larger category of
rare has to be seen for.
2. In the decision reported as 1983 (3) SCC 470
Machhi Singh vs. State of Punjab it was held that
while considering the imposition of penalty in an
offence punishable with death, mitigating
circumstances have to be accorded full weightage
and a just balance has to be struck between the
aggravating and mitigating circumstances.
3. Courts are required to draw up a virtual balance
sheet, listing the mitigating and the aggravating
circumstances against each other and then forming
an opinion as to where does the fulcrum rest.
4. A Division Bench of this Court, of which one of
us, namely, Pradeep Nandrajog, J. was a member of,
drew up a chart with reference to various judicial
pronouncements of what have been considered as
mitigating factors and aggravating factors. The
decision is dated 8.5.2009 in Death Ref. No.1/2008
'State vs. Raj Kumar Khandelwal'. This very Bench
Coram: Pradeep Nandrajog, J. and Indermeet Kaur, J.
had summarized the said tabular chart in the decision
dated 6.8.2009 disposing of Crl.Appeal No.635/2007
'Rajesh Kumar vs. State' and the connected Death
Ref. No.2/2007 'State vs. Rajesh Kumar'. In para 72
and 73 of said decision, it was summarized as under:-
"72. A bird‟s eye view of various judicial
decisions reveal that Courts have considered the
undernoted circumstances, as mitigating: lack of
any prior criminal record as held in the decision
reported as 2006 EWHC 1555 (QB) In Re.
Butters'; the age of the offender being too young
or too old as held in the decision reported as AIR
1974 SC 799 Ediga Anamma vs. State of Andhra
Pradesh; the character of the offender i.e. how
the offender is perceived in the society by men
of social standing; the probability of the
offenders‟ rehabilitation, reformation and re-
adaptation in the society; whether the offence
was committed under a belief by the assailant
that he was morally justified in doing so; or that
the accused acted under the duress or
domination of another person as held in the
decision reported as 1982 (3) SCC 24 Bachan
Singh Vs. State of Punjab; commission of the
offence at the spur of the moment without any
pre-meditation; or the offender being provoked
(for instance by prolonged stress) in a way not
amounting to the defence of provocation, as held
in the decisions reported as 2008 EWHC 36 (QB)
Re. Rahman and AIR 1998 SC 2821 A.Devendran
vs. State of Tamil Nadu; a belief by the offender
that the murder was an act of mercy as held in
the decision reported as 1994 (Supply) 3 SCC
143 Janki Dass Vs. State (Delhi Administration); a
guilty plea by the offender or his voluntarily
surrendering before the authorities and his being
genuinely remorseful as held in the decisions
reported as (2008) EWHC 92 (QB) In Re. Rock
and (2006) EWHC 1555 (QB) In Re. Butters'; that
the offender acted to any extent in self defence;
that his intention was merely to cause serious
bodily harm rather than to kill; that the victim
provoked or in any way contributed to the crime,
as held in the decision reported as AIR 1999 SC
1699 Kumudi Lal vs. State of U.P. Lastly, in the
decisions reported as AIR 2007 SC 2531 Swami
Shradhanand @Murali Manohar Mishra vs. State
of Karnataka and 2007 Cri.L.J. 1806 Shivu & Anr.
vs. High Court of Karnataka & Anr. it was held
that in cases of conviction being based on
circumstantial evidence a lenient view should be
taken on the issue of sentence.
73. Aggravating factors/circumstances have
been opined to be; the accused having
undergone previous convictions and his proving
to be a future danger/threat or menace to the
society considering aspects like criminal
tendencies, vagabond lifestyle, drug abuse etc.
as per the decision reported as (2008) EWHC 719
(QB) In Re. Miller; offender being in a dominating
position to the victim or in a position of trust and
has abused the trust; anti social or socially
abhorrent nature of the crime i.e. where the
offence arouses social wroth and shakes the
confidence of the people in any social institution;
a crime committed for a motive which evinces
total depravity and meanness for instance, a
financial gain; where the magnitude of the crime
is large i.e. there are more than one victims;
where the crime is committed in an extremely
brutal, grotesque, diabolical, revolting or
dastardly manner so as to arouse extreme
indignation of the community as held in the
decision reported as 1983 (3) SCC 470 Machhi
Singh Vs. State of Punjab; significant degree of
planning or premeditation and lack of remorse as
held in the decision reported as AIR 2005 SC
2059 Holiram Bordoli Vs. State of Assam; the
victim being vulnerable due to age or physical
infirmity as held in the decision reported as 2008
(110) Bom.LR. 373 State of Maharashtra Vs.
Haresh Mohandass Rajput; mental or physical
suffering inflicted on the victim before the death;
victim being a public service provider or
performing a public duty at the time when the
crime was committed, as held in the decision
reported as (1977) 431 US 633 Roberts Vs.
Louisiana. Lastly, the offender attacking
sovereign democratic institutions as held in the
decision reported as 2003 (6) SCC 641 Navjyot
Sandhu @ Afsan Guru Vs. State."
.....
The latest decision of the Supreme Court
pertaining to imposition of a sentence of death
i.e. JT 2009 (7) SC 249 Santosh Kumar
Satishbhushan Bariyar vs. State of Maharashtra,
decided on 13.5.2009 has highlighted another
important facet pertaining to the sentencing
procedure; being the consideration of alternative
options.
Discussing the nature of the content of the
rarest of rare dictum, the Supreme Court
observed, that a real and abiding concern for the
dignity of human life postulates resistance to
taking a life through the instrumentality of law.
That ought not to be done, save in the rarest of
rare cases, when the alternative option is
unquestionably foreclosed.
Imprisonment for life as a penalty entails
that the accused must remain in prison till his life
i.e. would never be set free from jail. However,
the executive has the power of remission under
Section 433 Cr.P.C., which is subject to the
restriction imposed by Section 433-A Cr.P.C. as
per which a person sentenced to imprisonment
for life or one whose sentence of death has been
commuted to imprisonment for life cannot be
released from prison unless he/she has served at
least 14 years of imprisonment.
The alternative option considered by the
Courts, is to pass a direction that the accused,
who has been held guilty would not be released
from prison, till a sentence more than 14 years
imprisonment has been suffered by the accused,
who has been sentenced to undergo
imprisonment for life.
We need not note many and varied
authorities taking resort to said alternatively;
save and except a few. The option was
exercised in the decision reported as AIR 2002
SC 143 Jayawant Dattatraysuryarao & Ors. vs.
State of Maharahstra. The decision pertains to
the infamous shooting by gangsters at
J.J.Hospital, Mumbai. Lethal firearms were
procured; being AK-47 rifles, hand grenades,
revolvers etc. At midnight, shooting took place
at J.J. Hospital, a government hospital, having
1500 beds in Mumbai. The target was one
Shailesh Haldenkar under police protection.
Rival gangs were involved. Shailesh Haldenkar
belonged to one such gang and was in judicial
custody. Three persons were shot dead; being,
Shailesh Haldenkar, HC Chaintaman Gajanan
Javsen and Const. Kawalsingh Baddu Bhanawat.
Six other persons, being a patient and his
relatives, the ward watchman and two other
policemen were grievously injured. The Supreme
Court, while upholding the conviction of the
accused, did not concur with the sentence of
death which was imposed, and under the
alternative option, directed that the accused
would not be entitled to any commutation or
premature release. In the decision reported as
2008 (13) SCC 767 Swami Shraddhanand vs.
State of Karnataka same alternative option was
availed of i.e. it was directed that the convict
would not be released from prison till the rest of
his life.
In some of the decisions, noted in Swami
Shraddhanand's case (supra), in paras 60 to 63
of the said decision, i.e. the decisions reported as
Shri Bhagwan vs. State of Rajasthan 2001 (6)
SCC 296, Prakash Dhawal Khairnar (Patil) vs.
State of Maharashtra 2002 (2) SCC 35, Ram
Anoop Singh vs. State of Bihar 2002 (6) SCC 686
and Mohd. Munna vs. Union of India 2005 (7) SCC
417, it was directed that the accused shall not be
released before completing an actual term of 20
years‟ imprisonment.
We may only add that the said decisions
throw light of drawing distinctions between what
would be rare and what would be the rarest of
the rare. A sentence of life imprisonment can
thus be classified in two categories i.e. the
ordinary category whereby the Court leaves the
exercise of executive power at the discretion of
the executive, to be so exercised after 14 years
of imprisonment and grant remission; and a
higher category, where the Court, in a rare case,
but not the rarest of the rare, would clip said
benefit being extended by directing that the
accused shall undergo an actual sentence for a
higher period or even for the remainder of his
life. Such kinds of cases can be put in the
category of rare cases with appropriate direction
of not being entitled to the benefit of remission
till a fixed term of imprisonment is undergone.
Only after carrying out such an exercise should
the Court take resort to the extreme action in a
case which would be in the category of the rarest
of the rare."
191. Following aggravating circumstances have been noted by
the trial court against the appellant:-
I Being employed as domestic servant by the family of
the children the accused held a position of trust.
II The accused committed crime within 4-5 days of
joining the employment.
III The victims attacked by the accused were young.
IV The victims were innocent and had not instigated the
accused.
V The accused came to the place of occurrence with a
pre-determined intention of causing death of any
person who would prevent him from raping X which is
evident from the fact that the accused came armed
with a knife and that the said knife was not an ordinary
knife but appeared to be one kept by criminals.
VI The accused murdered the deceased in a diabolical
manner.
VII The victims were defenceless
IX The accused was a morally depraved person evident
from the fact that he raped X and inflicted serious
injuries upon X and Y at the place where the deceased
was lying murdered.
192. Only one mitigating circumstance has been noted by the
learned Trial Judge i.e. young age of the accused.
193. In our opinion, circumstance no. II noted by the learned
Trial Judge is not an aggravating circumstance. On the
contrary, the converse situation would have been an
aggravating circumstance. The learned trial court has also
missed noting two mitigating circumstances which are (i)
repentance of the accused and (ii) the accused was having a
wife and children.
194. In the decision reported as Bishnu Prasad Sinha v State
of Assam AIR 2007 SC 848 Supreme Court used the fact that
the accused showed repentance in his statement under
Section 313 Cr.P.C. as a mitigating circumstance. In the
decision reported as Vasharam Narhibai Rajpura v State of
Gujarat 2002 CriLJ 2930 the accused murdered his wife and
four daughters. One of the factors which weighed with
Supreme Court in converting death sentence to life
imprisonment was that the accused was father of a boy of a
tender age and that the boy would be deprived of parental
protection if death sentence is awarded to the accused.
195. Tested on the anvil aforesaid and keeping in view the
fact that the crime committed by Sanjay is more than a
murder of an ordinary category; having an aggravated content
of the diabolical manner in which the offence was committed,
we hold that the instant case falls in the category midway
between i.e. of a category where the appropriate sentence to
be imposed is of imprisonment for life with a direction that
Sanjay would not be considered for being granted remission till
he undergoes an actual sentence of 25 years.
196. The appeal and the death reference stand disposed of
confirming the conviction of the accused for the offence of
murder pertaining to the death of Master Pratham as also for
the offence of having attempted to murder Kumari X as also
for the offence of having raped Kumari X. The conviction of
the accused for the offence of attempting to murder Kumari Y
is modified, in that, pertaining to the injuries caused by him to
Kumari Y, the accused is convicted for the offence of causing
grievous hurt while using a dangerous weapon and by
dangerous means i.e. the offence punishable under Section
326 IPC. The accused is acquitted of the offence punishable
under Section 379 IPC for the reason we have found a taint in
the manner the ring has been recovered as discussed in para
144 above.
197. Pertaining to the offence punishable under Section 302
IPC we sentence the appellant to undergo imprisonment for life
with a direction that he would not be considered for premature
release till he undergoes an actual sentence of imprisonment
for 25 years. Thus, the confirmation of the sentence of death
is declined. For the offence punishable under Section 307 IPC
we maintain the sentence pertaining to the attempt to murder
Kumari X. For the offence punishable under Section 376 IPC
we maintain the sentence. For the offence punishable under
Section 326 IPC for the grievous injuries caused to Kumari Y
we sentence him to undergo imprisonment for 7 years.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
OCTOBER 27, 2009
mm / Dharmender
