Kailash Chand vs State
2010 Latest Caselaw 1004 Del

R-80
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 22nd February, 2010

+                        CRL.APPEAL NO.342/2006

       KAILASH CHAND                                ..... Appellant
                Through:            Ms.Rakhi Dubey, Advocate

                                    versus

       STATE                                        ..... Respondent
                         Through:   Ms.Richa Kapoor, Advocate

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

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

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

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

PRADEEP NANDRAJOG, J. (Oral)

1. After the prosecution closed its evidence, when

cross-examined under Section 313 Cr.P.C., the song sung by

the appellant was:-

„I do not know‟; „It is incorrect‟.

2. These are the two answers given by the appellant

to each and every incriminating circumstance on which he was

questioned save and except the last. To the question what did

he have to say? He replied that he was innocent. He never

committed the crime and that he was falsely implicated due to

suspicion.

3. The charge against the appellant was of having

raped and murdered Kumari „K‟ in the intervening night of 18 th

and 19th June, 2002.

4. With reference to the testimony of Ravi Saran PW-1,

a person living in the neighbourhood of the deceased; Mohan

Lal PW-2, another person residing in the neighbourhood of the

deceased; Kripa Kant PW-3 an ice cream vendor who sells ice

cream at a parlour in the colony in which the deceased and

PW-1 and PW-2 resided as also the testimony of Raju PW-4, the

father of the deceased and Jhabbu Singh PW-6, the younger

brother of Raju who also resides in the same building in which

Raju resides, the Trial Court has returned a finding that their

testimony establishes that Kumari „K‟ was seen in the

company of the appellant at around 9:30 PM on 18.6.2002.

That after he was apprehended and got medically examined,

the same revealed injuries on the appellant which were opined

to be of the same time as when Kumari „K‟ was sexually

assaulted, learned Trial Judge has found a second piece of

incriminating evidence against the appellant. The third piece

of incriminating evidence against the appellant is the report

Ex.PW-16/F as per which soil on the skirt and blouse Ex.3-A

and Ex.3-B respectively of the deceased, was similar in its

physical characteristics as the soil adhering to a trouser and a

T-shirt Ex.5-A and Ex.5-B respectively got recovered by the

appellant after his arrest and pursuant to his disclosure

statement.

5. That Kumari „K‟ was raped has been held to be

established with reference to the post-mortem report Ex.PW-

8/A of the deceased. Needless to state that the appellant was

opined to be capable of performing sexual intercourse has

been held established with reference to the MLC of the

appellant.

6. It is urged by learned counsel for the appellant that

the testimony of Raju PW-4 and Jhabbu Singh PW-6, the father

and the uncle of Kumari „K‟, does not inspire any confidence

and is contrary to their contemporaneous conduct which

preceded their statements made to the investigating officer

and as deposed in Court. With reference to the testimony of

Ravi Saran PW-1, Mohan Lal PW-2 and Kripa Kant PW-3, it is

urged that their conduct relevant at 9:30 PM on 18.6.2002 is

not in conformity with what they claim to have seen.

7. We shall be highlighting the factual basis of the

aforenoted two submissions urged by learned counsel for the

appellant. But, for the purposes of appreciating the

submissions made by the learned counsel, the backdrop facts

in relation whereto said submissions have been made need to

be noted.

8. At the midnight of the intervening night of 18 th and

19th June 2002; the time being 00:10 hours, DD No.3-A Ex.PW-

9/A, was recorded by the duty constable at PS Farsh Bazar on

the statement of Raju PW-4 who informed that his daughter

Kumari „K‟ aged 9 years was missing and in spite of efforts

made could not be located. The description of Kumari „K‟ and

the clothes she was wearing stands recorded in Ex.PW-9/A.

Nobody has been named as a suspect and it has not been

stated by Raju that somebody told him that he had seen his

daughter in the company of somebody at around 8 or 9 PM.

9. The unfortunate girl could not be found. Her dead

body was found in an area within the jurisdiction of PS Anand

Vihar, information whereof was noted by the duty constable at

PS Anand Vihar vide DD No.12-A, Ex.PW-5/C. It stands

recorded that the dead body of a girl aged around 7 years has

been noted near Nepali Mandir, Vishwas Nagar within the

jurisdiction of PS Anand Vihar.

10. Investigation of DD No.12-A, Ex.PW-5/C, was

entrusted to SI Dharam Singh who left for the spot along with

two police constables. This information was transmitted to

Insp.K.C.Sharma PW-16, SHO of PS Anand Vihar as also to SI

Madhukar Rakesh, both of whom also proceeded to the spot

where the dead body of the young child was noted. All officers

reached the said place around the same time.

11. It is obvious that Insp.K.C.Sharma PW-16, being the

senior most officer, took charge of the investigation.

12. The news of the dead body of a young girl being

found as aforenoted spread in the area and naturally reached

the family members of Kumari „K‟.

13. Raju PW-4, the father of Kumari „K‟ obviously

reached the spot hoping that the dead body of the young girl

was not that of his daughter. But, unfortunately for him, truth

was otherwise.

14. Raju met the police officers who reached the spot

and Insp.K.C.Sharma PW-16 recorded his statement Ex.PW-4/A

as per which Raju simply stated that he resided in House

No.8/31, Sahdev Gali, Vishwas Nagar and that his daughter

was missing since last night i.e. the night of 18.6.2002 and

that today morning he received information from somebody

that a dead body of a girl was noted near Nepali Mandir. He

reached the said spot and found his daughter lying dead.

15. It may be noted that even in the statement Ex.PW-

4/A which obviously has been recorded sometimes after 12:00

in the noon, Raju has not expressed his doubt on anybody

being the assailant of his daughter. He has not stated that

anyone told him that he had seen his daughter in the company

of some person.

16. A pair of chappal identified by the father of Kumari

„K‟ as those which Kumari „K‟ was wearing when she left her

house, a coin in sum of Rs.2/-, earth control and a hair clip

which were seized vide memos Ex.PW-4/B, Ex.PW-4/C and

Ex.PW-4/D. The dead body of the girl was taken into

possession and sent to the mortuary for post-mortem.

17. Dr.K.Goyal PW-8 working in the mortuary of Subzi

Mandi conducted the post-mortem of the deceased on

20.6.2002. But, before that something of importance

transpired.

18. Though not on record as to in what sequence did

the various public persons meet the investigating officer and

give their statements to him; but the case diary shows that on

19.6.2002 the investigating officer first recorded the

statements of Ravi Saran PW-1, Mohan Lal PW-2 and Kripa

Kant PW-3 under Section 161 Cr.P.C. Ravi Saran and Mohan

Lal told the investigating officer that at 8:30 PM on 18.6.2002

they were together outside the house of Ravi Saran which was

in Sahdev Gali, Vishwas Nagar i.e. adjoining house of Kumari

„K‟ and that they heard barking of a dog. Kumari „K‟ aged 9

years fell down due to fear of barking of dog. Appellant, a

relative of Raju picked up the girl in his lap and took her away.

Next day they learnt that Kumari „K‟ was missing and was

found dead. Kripa Kant PW-3, a person who sell ice cream at a

parlour in the locality informed the investigating officer that

around 9:00 PM, the appellant had come with a girl and

purchased ice cream. He later on learnt that the name of the

girl was Kumari „K‟.

19. It is apparent that the needle of suspicion pointed

towards the appellant who was apprehended on 19.6.2002.

He made a confessional-cum-disclosure statement and got

recovered a pant and a T-shirt which were taken into

possession by the investigating officer. The appellant was

sent for medical examination to Swami Dayanand Hospital on

20.6.2002 where he was examined at 1:50 AM by Dr.B.Nayak

PW-7 working as a CMO at the hospital.

20. In the MLC Ex.PW-7/A, apart from recording that the

appellant was a healthy male and was capable of performing

sexual intercourse, it is recorded that there were 6 injury

marks over the body of the appellant being as under:-

"1. There was a linear scratch mark of 3 cm long over suprasternal area of neck.

2. There was a linear scratch mark over right side of posterior aspect of the neck.

3. An abrasion of 2 cm x 1 cm over posterior aspect of lower right forearm.

4. There was an abrasion of .5 cm over ulnar border of right wrist.

5. An abrasion of 1 cm over ulnar border of left wrist.

6. An abrasion of ½ cm 2 inches below over posterior aspect of left elbow."

21. After the appellant was arrested on 19.6.2002, the

investigating officer recorded the statement of Raju PW-4 and

the statement of Jhabbu Singh PW-6 under Section 161 Cr.P.C.

Jhabbu Singh told the investigating officer that when he was

returning home at 9:30 PM on 18.6.2002 he saw Kailash with

the daughter of his brother Raju. He recognized Kailash as he

used to work as mason in the house of his sister. His niece

Kumari „K‟ was eating ice cream. He was not feeling well.

When he returned home he learnt that Kumari „K‟ was missing.

He tried to find out her whereabouts from the appellant, but

the appellant was not available. He went to sleep. In the

morning he tried to find out the appellant but could not meet

him. They all went to search for Kumari „K‟ and found her

dead body near Nepali Mandir.

22. The aforesaid sequences in which the statements

have been recorded by the investigating officer have been

noted by us with reference to the case diary which is available

with learned counsel for the respondent.

23. The post-mortem of Kumari „K‟ conducted by

Dr.K.Goyal PW-8 and as reflected in the post-mortem report

Ex.PW-8/A records 6 external injuries as under:-

"1. Diffuse contused abraded area over and around apple of adam extending on the right side neck upto 4 cm below right ear and on the left side upto 3 cm left to mid line in total area of 12 x 3.5 c m transversely and obliquely in diffused manner. There were 4-5 small contused areas of varying sizes between ½ x ½ cm to 1 x .75 cms over left side neck scattered obliquely over upper part of neck and blow the left mandible.

2. Both lips were bruised all over with multiple scratch abraded area with contusions in between scattered around the mouth and right cheek.

3. Abrasion 1 x 1 cm near left lateral cantus multiple tiny abrasions scattered vertically over right forearm dorsally and also over dorsum of right hand 2.5 x 2 cm over front of right knee.

4. Pattern bruises small in size 1.25 x 1 cm two in numbers about 1 cm apart each other over outer part of left arm at middle.

5. Upper and middle half of medial sides of both thighs were showing redness with few scratch marks at places.

6. Both labia majora were bruised. Internally vaginal walls were showing bruising in its initial part all around."

24. On internal examination the injuries and the

condition of muscle tissues around the neck were recorded as

under:-

"On reflexion of skin of neck there was subcutaneous and platysmal bruising seen all over front and sides of neck. Deeper neck muscles were also bruised with effusion of b lood. Both grater cornua of hyoid bone were found loose with massive bruising and clots around. Blood clots around thyroid cartilage and side of trachea were also present. Epiglottis and larynx were bruised. Soft tissues of neck also showed signs of early decomposition. Small amount of serosanguinous discharge present in trachea. Both lungs were oedematous, congested and frothy with early decomposition changes."

25. It was opined that cause of death was asphyxia

given upon pressure over neck structures consistently by

human grip i.e. manual strangulation.

26. As deposed to by Dr.K.Goyal after the post-mortem

he handed over the clothes of Kumari „K‟ to the investigating

officer.

27. While deposing in Court Ravi Saran PW-1 and

Kailash Chand PW-2 deposed that they were sitting outside the

house of Ravi Saran and heard barking of a dog. Kumari „K‟

daughter of Raju aged about 9 years fell down due to fear.

Appellant a relative of Raju took the girl in his lap and walk

towards Nakul Gali. The next day they learnt that Kumari „K‟

had died.

28. Kripa Kant PW-3 deposed that he sells ice cream

from a parlour which is situated on the 60 feet road near Nakul

Gali and that at 9:00 PM on 18.6.2002 the appellant came with

a girl and purchased ice cream.

29. Raju PW-4 deposed that his daughter was missing

since 8:00 PM on 18.6.2002 and she could not be traced. He

went to PS Farsh Bazar and lodged the complaint Mark PW-4/A

around 12:00 midnight. He learnt at around 11/11:30 AM on

19.6.2002 that a dead body of a girl was found near Nepali

Mandir. He went there and found his daughter lying dead. He

deposed that his statement Ex.PW-4/A was recorded by some

police officer. He deposed that the various seizure memos i.e.

Ex.PW-4/B, Ex.PW-4/C and Ex.PW-4/D were drawn in his

presence and the exhibits shown as seized from the spot were

lifted from the spot in his presence.

30. He further deposed that during investigation his

neighbours Mohan Lal and Ravi Saran told that the appellant

had removed his daughter. He went on to deposed of being a

witness to the arrest and the disclosure statement of the

appellant and recovery of a T-shirt and a pant at the instance

of the appellant.

31. Jhabbu Singh PW-6 deposed the facts as noted

hereinabove by us which stand mentioned in his statement

under Section 161 Cr.P.C. recorded by the investigating officer.

32. With reference to the testimony of Jhabbu Singh

PW-6, it is urged by learned counsel for the appellant that he is

a strange uncle of Kumari „K‟. As per him he saw Kumari „K‟ in

the company of the appellant at 9:30 PM. It is a fairly

unearthly hour for a young girl to be in the company of a

stranger. As per Jhabbu Singh, the appellant was a mason.

Counsel urges that it is strange that Jhabbu Singh did not

enquire from the appellant as to where he was taking his

niece. Further, learned counsel draws attention to the

testimony of Jhabbu Singh as per which when he came home

he learnt that Kumari „K‟ was missing. As per him he returned

home around 9:30 PM. As per him he tried to find out from the

appellant but could not meet him. Counsel further urges that

on being cross-examined Jhabbu Singh stated that when he

reached home wife of Raju was present and even from her he

learnt about Kumari „K‟ being missing. Counsel urges that

Jhabbu Singh, who claimed to be unwell, would naturally be

expected to tell his sister-in-law, if he had indeed seen the

appellant with Kumari „K‟, as deposed to by him. With

reference to the missing person‟s complaint Mark PW-4/A,

which we note has been exhibited as Ex.PW-9/A when ASI

Ombir PW-9 the scribe thereof appeared as a witness, learned

counsel urges that it is not believable that past 12:00 in the

midnight, Raju would not have known said fact. Further,

counsel urges that in any case this fact could not have been

not in the knowledge of Raju around 12:00 noon the next day

by which time the dead body of Kumari „K‟ was noted and

Raju‟s statement Ex.PW-4/A was recorded by Insp.K.C.Sharma

PW-16. Counsel urges that aforesaid features totally discredit

the testimony of Jhabbu Singh PW-6 and renders untrustworthy

the testimony of PW-1 to PW-3. With respect to the testimony

of PW-1 and PW-2, counsel urges that even their conduct is

suspect. Had they seen the daughter of their neighbour fall

down due to fear of barking dog, they would not have allowed

the appellant, who was no more than a stranger to the house

of Raju (being a mason) as deposed to by Jhabbu Singh PW-6,

to walk away with Raju‟s minor daughter.

33. There is logic in the criticism of the testimony of

Jhabbu Singh PW-6. Indeed, what he claims to have seen is

nothing but a bundle of lies. His contemporaneous conduct

and that of his brother clearly show that Jhabbu Singh saw

nothing of the kind which he claims to have seen at 9:30 PM

on 18.6.2002, for had he seen Kumari „K‟ with the appellant

said fact would be in the knowledge of Raju and was too

important for him not to tell the police.

34. It is apparent that the Jhabbu Singh is over stating a

case. But that does not mean that the Investigating Officer has

planted Jhabbu Singh.

35. As noted above, with reference to the case diary

maintained by Investigating Officer, we have noted that the

statements of the public witnesses were recorded in the

priority of the Kripa Kant being recorded first, followed by

statement of Ravi Saran, Mohan Lal and thereafter Jhabbu

Singh and the father of the girl on 19.06.2002. Further, the

statement of Kripa Kant, Ravi Saran, Mohan Lal was recorded

much before the time when the appellant was apprehended.

36. There is a probability that Jhabbu Singh, who is the

real paternal uncle of Kumari „K‟. with anger and revenge

picked up what was stated to the Investigating Officer by Kripa

Kant, Ravi Saran and Mohan Lal and told lies.

37. We thus have to eschew reference to the testimony

of Jhabbu Singh PW-6 as the same lacks credibility.

38. The submission of learned counsel for the appellant

that Ravi Saran and Mohan Lal have to be disbelieved on

account of the fact that they would not have let it pass when

the appellant took Kumari „K‟ towards Nakul Gali at 8:30 PM as

claimed by them for the reason it was an unearthly hour for a

stranger to walk away with a girl in the neighbourhood ignores

the testimony of Ravi Saran and Mohan Lal to the effect that

the appellant was a relative of Raju.

39. Now, learned counsel for the appellant urges that

as per the Jhabbu Singh PW-6 the appellant was mere

acquaintance of Raju as the appellant was mason and had

worked in the house of Jhabbu‟s sister and used to visit them.

40. It does happen that people in neighbourhood feel

that a frequent visitor to a house in the neighbourhood is a

relative. Indians are known for being un-officious about

everything. They do things un-officiously. They believe things

un-officiously. Thus, it is possible that Ravi Saran and Mohan

Lal, on the belief that the appellant was relative of Raju,

allowed him to pass by and their eyebrows never got raised

when they saw Kumari „K‟ being taken in his lap by the

appellant towards Nakul Gali.

41. Here comes the relevance of the post-mortem

report Ex. PW-8/A of Kumari „K‟.

42. We have noted in para 23 above the five external

injuries noted on her person by Dr.K.Goyal.

43. Highlighting injury Nos.3 and 4, it is apparent that

there was an abrasion on the left lateral cantus i.e. the left,

corner side, of the left eye. As part of injury No.3, it has been

recorded that there were multiple tiny abrasions scattered

vertically over right forearm dorsally, meaning thereby, behind

the back of the right forearm. The third set of abrasion noted

under the injury No.3 is over dorsum of right hand i.e. the back

of the right palm. The forth injury as part of injury at serial No.

3 are abrasions on the front right knee. Injury No.4 are pattern

bruises over outer party of the left arm at middle.

44. Are the said set of injuries not in sync with injuries

which a child would receive when he falls while running? A

person in movement, on tripping, would fall forward. The

hands would automatically outstretch to prevent the fall.

While tripping the knee may come into contact with the

surface when the person falls. The aforesaid injuries are

leaning in the said directions.

45. The post-mortem of Kumari „K‟ as deposed by Dr.K.

Goyal PW-8, was conducted on 20.06.2002. PW-1 and PW-2

had disclosed the fact to the Investigating Officer on

19.06.2002 that Kumari „K‟ had fallen when a dog had barked.

The dead body of the girl has corroborated the said fact that

Kumari „K‟ suffered a fall. That apart, the nature of the fall

injuries are in further reinforcement of what has been stated

by PW-1 and PW-2. The said two witness had not seen Kumari

„K‟ from close quarters so as to notice the exact injuries

sustained by Kumari „K‟. Thus, a very material part of the

testimony of PW-1 and PW-2 finds corroboration from the post-

mortem report of Kumari „K‟.

46. Let us now revisit the injuries on the appellant as

noted by Dr. B. Nayak PW-7 author of the MLC Ex.PW-7/A of

the appellant.

47. The injuries Nos.1 to 5 are clearly result of the

victim repelling the use of force. Injury No.6 i.e. an abrasion

over the posterior aspect of left elbow evidences either the

blunt force inflicted on the left elbow or the left elbow placed

on the ground in a crouching position and the body weight

transferred on the left elbow. This would be the position of the

appellant who would be on top of Kumari „K‟ when he was

performing the dirty act of sexual intercourse on the helpless

victim. The linear scratch mark on the suprasternal area of

neck and posterior aspect of the neck suggests a victim trying

to grab the neck and push it away. Abrasions over the lower

right forearm, ulnar border of right wrist and ulnar border of

left wrist are the possible result of the victim, who is being

throttled, catching the hands of the assailant to loosen the grip

on the neck of the victim.

48. Each and every injury on the appellant was opined

to be 25-26 hours old; appellant being examined at 1:50 AM on

20.06.2002; relate back the injuries to the time when the

young girl was assaulted.

49. When examined under Section 313 Cr.P.C. and it

being put to him that after he was arrested he was produced

before Dr.B.Nayak, who examined him and prepared the MLC

Ex.PW-7/A, the appellant sang the line "I don‟t know".

50. Question Nos. 28 and 29 and the answers thereof

read as under:-

"Q.28 It is in evidence against you that Dr.B.Naik had examined you and prepared the MLC which is Ex.PW- 7/A. What have you to say ?

Ans. I do not know.

Q.29 It is in evidence against you that all the injuries were appeared to be between 25 to 36 hours. What have you to say ?

Ans. I do not know "

51. We have already drawn the conclusions which flow

from the injuries upon the appellant as recorded in Ex.PW-7/A

and have highlighted the manner in which the said injuries are

suggestive of being caused by a victim who is being raped and

throttled.

52. In this backdrop, we find credibility in the testimony

of PW-1 to PW-3. Ignoring the testimony of PW-6, it has been

established that Kumari „K‟ was seen being taken by the

appellant towards Nakul Gali. Before PW-1 and PW-2 saw this,

they had seen Kumari „K‟, aged 9 years fall down due to fear of

a barking dog. They thought that the appellant who was a

relative of Kumari „K‟ would be probably taking her for some

medical treatment and for said reason their eyebrows were not

raised.

53. The evidence of the appellant being last seen with

Kumari „K‟ at around 8:30-9:00 PM; the dead body of the girl

being recovered next day and the unexplained injuries on the

person of the appellant, and as noted and reasoned above, are

sufficient evidence wherefrom the guilt of the appellant can be

inferred.

54. Even ignoring the fact that the shirt and pant got

recovered by the appellant were detected with mud having

same physical characteristic as was detected on the skirt and

blouse of the unfortunate victim, the said two incriminating

pieces of evidence are sufficient wherefrom the guilt of the

appellant can be inferred.

55. That Kumari „K‟ was raped is apparent from injury

No.6 as also from injury Nos.2 and 5 on her person.

56. The conviction of the appellant for the offence of

rape is, therefore, fully justified and sustainable.

57. It is urged by learned counsel for the appellant that

the possibility of the appellant trying to muffle the voice of his

victim and thereby causing her death due to asphyxia cannot

be ruled out and under the circumstances the conviction for

the offence of murder cannot be sustained needs to be noted

and rejected for the reason the post-mortem report does not

merely stop at the fact that unfortunate victim was deprived of

oxygen into her lungs. Asphyxia has been opined to be the

consequence of manual strangulation. Both greater cornua of

hyoid bones were found loose with massive bruises and clots.

The fact that the young child was throttled for a fairly long

duration is evidenced by the corresponding injuries on the

wrists of the appellant and on his neck,++ suggestive of

resistance offered by the victim.

58. We see no scope for an argument that the

possibility was of the appellant trying to muffle the cries of his

victim and not to do away with the victim cannot be ruled out.

59. In this connection it assumes importance that there

is evidence that the appellant was a regular visitor to the

house of the victim. The appellant was aware that if he leaves

the victim alive he would be leaving a potential witness. This

was his motive to kill the unfortunate victim.

60. Thus the conviction of the appellant for the offence

of having murdered Kumari „K‟ is fully justified.

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

62. Since the appellant is in jail we direct a copy of this

order to be sent to the Superintendent Central Jail, Tihar to be

made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 22, 2010 mm/mr