Mohd.Islam vs State
2010 Latest Caselaw 2309 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: 22nd April, 2010
                        Judgment Pronounced on: 30th April, 2010

+                       CRL.APPEAL No.707/2008

       MOHD. ISLAM                           ..... Appellant
                Through:       Mr.S.B.Dandapani, Advocate

                               versus

       STATE                                  ..... Respondent
                    Through:   Ms.Richa Kapoor, A.P.P.

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

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

2.     To be referred to the Reporter or not?

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

PRADEEP NANDRAJOG, J.

1. With reference to the testimony of Kumari Gulnar

aged 10 years when she deposed in Court on 24.3.2005 and

was aged about 8½ years when the crime took place on

13.10.2003, the learned Trial Judge has held that the same

establishes that the deceased Gulfasha aged 12-13 years was

in the company of the appellant at around 7:30 PM; with

reference to the fact that the ball Ex.P-1 proved to be that of

Gulfasha in view of the testimony of her father Ihlal Ahmed PW-

1 was recovered from the jhuggi of the appellant the learned

Trial Judge has held that the same establishes that Gulfasha

was inside the jhuggi of the appellant; with reference to the

fact that after he was apprehended the appellant made a

disclosure statement Ex.PW-8/A admitting to having raped and

then murdered Gulfasha and while doing said act his shirt and

lungi got stained with blood which were got recovered by the

appellant as entered in the memo Ex.PW-8/C on which, as per

FSL report Ex.PW-15/G, only human blood could be detected

the learned Trial Judge has held that the said fact was

incriminating as it probablized that as the young unfortunate

girl bled when she was raped, her blood fell on the lungi of the

appellant; lastly with respect to the fact that the appellant

absconded from his jhuggi the learned Trial Judge has held that

the same evidences a guilty mind. Cumulatively read, all four

circumstances have been held to be sufficient circumstances

wherefrom the guilt of the appellant could be inferred for the

offence of having raped and murdered Gulfasha whose dead

body was found in the morning of 14.10.2003 near the dump

yard. Proof of the fact that Gulfasha was subjected to a sexual

assault is the post-mortem report Ex.PW-7/A, proved at the trial

by its author Dr.Anil Shandil PW-7, which show multiple bruises

and clear lacerated wounds on the face, lips and neck of the

young unfortunate girl. There were finger impression marks

with bruises on the neck with corresponding injuries inside the

neck in the form of extravasation of blood in the neck muscles

with fracture of thyroid, laryngeal and tracheal cartilages.

Further, in the genitals of the young unfortunate girl blood clots

were noted over labia majora and minora. Vaginal orfice had a

visible torn which was contused and lacerated. Hymen was

ruptured. Posterrior fourchette and wall of vagina was torn and

lacerated. Asphyxia caused my manual strangulation was the

cause of the death of the young girl. That the appellant was

capable of performing sex stands proved by the testimony of

Dr.Seema PW-13 who deposed that she was conversant with

the writing and signatures of Dr.Vinod Kumar, the author of the

MLC Ex.PW-13/A, which records the fact that the appellant was

capable of sexual intercourse.

2. During arguments in the appeal, learned counsel for

the appellant conceded to the position that the post-mortem

report of the deceased conclusively proves that Gulfasha was

raped and thereafter strangulated to death. That the offence

of rape and murder was committed was conceded; the only

issue raised was whether the evidence is sufficient wherefrom

the guilt of the appellant can be sustained.

3. With reference to the testimony of Ms.Sakina PW-4,

the grandmother of Gulfasha, learned counsel for the appellant

drew our attention to the fact that she admitted during cross-

examination that the appellant knew her for the last 17-18

years and she had never heard a word against the appellant of

his indulging in any illegal activity and hence urged that why

would the appellant commit such a depraving act. With

reference to the testimony of Gulnar PW-3 learned counsel

pointed out that Gulnar stated that the appellant was the Dada

(Grand-father) of Gulfasha, meaning thereby everybody

treated the appellant as a fatherly figure and said fact, urged

learned counsel, rendered it most improbable that the

appellant would commit the depraving crime. Conceding that

the appellant was arrested on 16.10.2003, learned counsel

urged that the appellant was lifted from the house of Khalil

Ahmed where he had gone on 13.10.2003 because both were

painters and had a joint work at hand and not from the place

as claimed by the prosecution. Thus, counsel urged that the

appellant never absconded. Questioning the recovery of the

ball Ex.P-1 from his jhuggi learned counsel urged that firstly no

public person being associated with the recovery the same

inspired no confidence and secondly there is no evidence that

the ball had a peculiar distinctive feature which rendered the

same an object of distinct identity and hence capable of being

identified as belonging to the deceased. Explaining the

circumstance of human blood being detected on the lungi

which was got recovered by the appellant from his jhuggi,

learned counsel urged that being a painter some red coloured

paint had fallen on the lungi and this was treated as a blood

stain. Lastly, learned counsel urged that the appellant was a

married person having children. His wife and children were in

the jhuggi on 13.10.2003 and as admitted during cross-

examination by Sakina PW-4, the grandmother of the

deceased, the jhuggi of the appellant was 4-5 jhuggis away

from the jhuggi of Sakina and it was thus impossible for it not

to be noticed that the deceased was first raped and then

murdered by the appellant in his jhuggi and the body disposed

of near a garbage dump.

4. With reference to the deposition of Gulnar PW-3, it

may be stated that she was aged 10 years when she deposed

and was aged 8½ years when her friend Gulfasha went missing

and suffered the unfortunate fate of being raped and then

murdered. Her testimony has to be appreciated keeping in

view her immature mind and hence a lack of expression to

convey her thoughts. At the forefront would be the question:

why would Gulnar tell a lie and that too on 14.10.2003 i.e. on

the very day when dead body of Gulfasha was discovered in

the morning? Why would she falsely state that she and her

friend, the deceased, were playing with a small ball belonging

to the deceased and both went to the house of her friend's

Dada i.e. the appellant, and why would she falsely state that

she i.e. Gulnar left for her house and at that time Gulfasha

stayed back in the jhuggi of the appellant? No answer is

forthcoming on record and indeed, neither from the cross-

examination of Gulnar nor from any other circumstance, could

it be brought out that Gulnar was either tutored or had a

motive to state a wrong fact. That Gulnar told the

investigating officer of what she deposed in Court at the very

first instance i.e. on 14.10.2003 lends credence to her

truthfulness.

5. A very important and a relevant fact has escaped

the notice of the learned Trial Judge, being the post-mortem

report Ex.PW-7/A of Gulfasha, proved at the trial by its author

Dr.Anil Shandil PW-7, which records that the stomach contents

of the deceased were consisting of rice and subji (vegetables).

This means that there was undigested rice and vegetables in

the stomach of Gulfasha. It is obvious that a meal taken by

Gulfasha had yet to be digested. It is obvious that Gulfasha

had taken a meal consisting of rice and subji at some point of

time not going backward by more than 2 hours when she was

murdered. The fact that she took rice and subji further

evidences the fact that she was in the company of somebody

whom she trusted and from whom she would accept a meal of

rice and subji. As deposed to by Gulnar, she and Gulfasha

were playing on the street at around 7:30 PM when Gulfasha

told her to accompany her to her Dada's house. Ihlal Ahmed

PW-1 the father of Gulfasha has not said that his daughter had

taken her supper. The greater probability is that Gulfasha took

a meal of rice and subji after she left her house while playing

with Gulnar. Another very important piece of evidence has

escaped the attention of the learned Trial Judge. The same are

the contents of the disclosure statement Ex.PW-8/A of the

appellant wherein apart from admitting to have committed the

crime, the appellant disclosed that when the young girl with

whom Gulfasha had come to his jhuggi had left, he fed rice and

vegetable dish consisting of potato and brinjals to Gulfasha and

when it became dark he raped Gulfasha during which act his

lungi got stained with the blood of Gulfasha and thereafter he

strangulated Gulfasha and threw her dead body. It has gone

unnoticed by the learned Trial Judge that the appellant had told

of having fed rice and vegetables to Gulfasha which exactly

corresponds to the contents in the stomach of Gulfasha which

were detected when post-mortem on her dead body was

conducted.

6. The argument of learned counsel for the appellant

that as per Gulnar, Gulfasha used to call the appellant as her

Dada i.e. grandfather and even Sakina PW-4, the grandmother

of Gulfasha stated that the appellant was a man of repute and

hence it was unbelievable that the appellant did the crime, is

neither here nor there for the reason, when would the devil

within overpower the good in a man is very difficult to

comment upon. The most pious men are found to be indulging

in the most nefarious activities. Every day, a controversy on

the issue of sexual abuse of young boys by priests is to be read

in the newspaper pertaining to the visit of the Pope to United

Kingdom. Only day before yesterday i.e. on 27.4.2010 it was

reported in the papers that a Cardinal, a person of a fairly high

standing in the Church, admitted to sexually abusing young

boys. What we want to convey is that the cloak of a stature

cannot be used as a cover, if otherwise there is good and

credible evidence pointing towards the guilt of a person. A

court of law is concerned with evidence brought before it and

save and except in such cases where character becomes

relevant, the same has to be eschewed.

7. The submission that the appellant never absconded

and he went to the house of Khalil Ahmed and stayed with him

as both were painters is a mere submission without any factual

basis, for the reason when examined under Section 313 Cr.P.C.

and while responding to the incriminating circumstance of his

absconding, the appellant only said that he was picked up from

the house of Khalil Ahmed and not apprehended as claimed by

the prosecution, without further stating that from 13.10.2003

till he was arrested on 16.10.2003 he stayed with Khalil

Ahmed, his friend. We further note that only a suggestion has

been given to the investigating officer that the appellant was

apprehended from the house of Khalil Ahmed and not as

claimed by the investigating officer; a fact which was denied by

the investigating officer.

8. The argument that the stain of paint on the lungi of

the appellant has been treated as blood as opined in the FSL

Report Ex.PW-15/G, has to be rejected for the simple reason no

such case was projected during trial. The author of the report

Ex.PW-15/G is an officer to whom Section 293 Cr.P.C. applies.

The report was tendered in evidence by the investigating

officer. The appellant never exercised his right to summon the

author of the report for cross-examination.

9. Merely because no public person was associated

with the recovery of the ball Ex.P-1 would not make the

recovery doubtful for the reason, as held by the learned Trial

Judge, the police witnesses Const.Ashok Tyagi PW-10, HC

Hansroop PW-8 and SI Dinesh Pal PW-14 who participated in

the recovery of the ball have duly supported the version of the

prosecution. No doubt it has not come in evidence that the ball

had any distinctive features, but parents do have an uncanny

eye to recognize the toys of their children. Gulfasha's father

Ihlal Ahmed PW-1 identified the ball Ex.P-1 as that of his

daughter. He was not subjected to any cross-examination on

the issue as to how come he could identify the said ball as that

of his daughter. Had he been examined on the issue, he would

have given some answers and then the matter could be

debated upon.

10. The last submission that the wife and children of the

appellant were residing with the appellant in his jhuggi and

thus it was impossible for the appellant to lure Gulfasha to his

jhuggi and first feed her, then rape her, then murder her and

finally disposed away her body is predicated as if there is

evidence on record that the wife and children of the appellant

were in the jhuggi of the appellant on 13.10.2003. No

suggestion has been given to the investigating officer or to any

other witness that the wife and children of the appellant were

in the jhuggi of the appellant in the late evening and the night

of 13.10.2003. The appellant has not even said so when he

was examined under Section 313 Cr.P.C. The wife or the

children of the appellant have not been examined in defence to

prove their presence in the jhuggi. Thus, the submission is

rejected, being found to be without any fact proved or even

suggested to the witness of the prosecution during trial.

11. We concur with the reasoning of the learned Trial

Judge and hence dismiss the appeal.

12. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent Central Jail Tihar to

be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

APRIL 30, 2010 dk/mm