Rajeev Kumar @ Sonu vs State
2010 Latest Caselaw 1484 Del

R-17
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision :17th March, 2010

+                     CRL.APPEAL NO.96/2008

        RAJEEV KUMAR @SONU                          ..... Appellant
                     Through:         Mr.Bhupesh Narula, Advocate.

                      versus

        STATE                                  ..... Respondent
                           Through:   Mr.M.N.Dudeja, 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 Reporter or not?                   Yes
     3. Whether the judgment should be reported in the Digest?
                                                             Yes


PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

10.10.2007, while convicting the appellant for the offence of

having raped and murdered Baby „S‟, in para 21 of the

impugned decision the learned Trial Judge has crystallized the

incriminating evidence against the appellant as under:-

"21. I have considered facts and circumstances of the case and submissions of Ld.Defence Counsel. I am of the opinion that although no person has seen the deceased being raped and killed by the accused. However the prosecution has led following

circumstantial evidence to nail the accused:

1. The postmortem report Ex.PW-4/A shows that the autopsy was started at 11:30 am and concluded at 1:00 pm on 17.1.2004. The time since death is opined to be about 19 hours. This shows that the death of the child could have taken place between 6 to 7:00 pm on 16.1.2004. This tallies with the testimonies of the witnesses (PW-1, PW-9, PW-10, PW-11) that the deceased child was missing from her house in the evening of 16.1.2004 and they started searching for the child at about 6:30 pm on that date.

2. Soon after the death of the child, accused was found by the above stated witnesses in his house and at that time he was pushing the child under the sofa of his room.

3. As per the testimony of PW-4 Dr.Arvind Theragaonkar, the examination of vagina showed hymen torn freshly and vaginal tear and recent bleeding was seen.

4. As per postmortem report Ex.PW-4/A the cause of death was opined to asphyxia due to strangulation caused by soft ligature material possibly with a chunni Ex.P2 which was recovered by PW-19 Inspector K.P.Kukrety at the instance of the accused.

5. The blood group of the deceased, as per FSL report Ex.PW-19/F was found to be of B group and the blood of the accused was to be of A group.

6. The pajami of the deceased was also sent to FSL and as per FSL report Ex.PW-19/F, it was having mixed stain of blood and semen. Sh.A.K.Srivastava, Senior Scientific Officer (called under Section 311 Cr.P.C.) testified that if semen of A group and blood of B group are mixed, the same would give AB group on analysis."

2. Learned counsel for the appellant does not dispute

that the FSL report Ex.PW-19/F concludes the issue that the

blood group of the deceased was „B‟ and that of the accused

was „A‟ and that the testimony of Shri A.K.Srivastava, the

Senior Scientific Officer establishes that if semen of group „A‟

and blood of group „B‟ was mixed up, the same would give

results of „AB‟ group. This was the blood group detected on

the underwear and the pajami of Baby „S‟.

3. Learned Trial Judge has referred to the testimony of

PW-1, PW-3, PW-9, PW-10 and PW-11 to hold that their

testimony establishes that the appellant was seen by them

push Baby „S‟ behind a sofa in his house. The girl was critical

and was unconscious at that point of time. She was rushed to

the hospital where unfortunately she died.

4. Criticizing the testimony of PW-1 and PW-3, learned

counsel for the appellant draws our attention to the admission

made by PW-1 during cross-examination to the effect that he

stated that when they were searching for Baby „S‟ the accused

met them in the park of the colony. PW-3 has stated that

when they were searching for Baby „S‟ the accused met them.

5. It is urged that if the accused had met PW-1 and

PW-3 outside his house, where was the occasion for the

witnesses to be seeing the accused try and hide Baby „S‟ by

pushing her body behind a sofa in his house.

6. Arjan Dass Khurana PW-1 is the maternal

grandfather of the victim and he deposed that his daughter

Kavita came to his shop and informed that his grand-daughter

Baby „S‟ aged 6 years is missing. He along with Gurumukh

Dass and Santosh Kumar started searching for Baby „S‟. She

could not be found till 8:00 PM. He informed PCR over number

100 and got announced in the colony Gurudwara about his

grand-daughter being missing. People in the locality joined

them to search Baby „S‟ and that when they were moving in

the colony they saw the chappal of Baby „S‟ outside the house

of the appellant and on peeping inside he saw the appellant

pushing Baby „S‟ under the sofa. They entered the house and

lifted the sofa. Baby „S‟ was unconscious. Appellant was

apprehended. He took the appellant to the police post. His

neighbour Nandlal Sachdeva removed Baby „S‟ to the hospital.

Later on he learnt that Baby „S‟ had died.

7. As noted above, on being cross-examined, he

stated that when they were searching for Baby „S‟ the accused

met them in the park of the colony.

8. Santosh Kumar PW-3 deposed that he joined the

mohallawallas to search Baby „S‟ and when they saw chappal

of Baby „S‟ outside the house of the appellant they entered the

house and saw the appellant pushing Baby „S‟ under the sofa.

Appellant was apprehended. Baby „S‟ was unconscious. His

uncle Nandlal Sachdeva took Baby „S‟ to the hospital. The

accused was taken to the police post.

9. As noted above, on being cross-examined he stated

that when they were searching for Baby „S‟ the accused met

them.

10. Nandlal Sachdeva PW-9 has deposed facts in

harmony with the earlier two witnesses. He, during cross-

examination, did not state that the accused met them when

they were searching for Baby „S‟.

11. Prem Chand PW-11 has also deposed in sync with

the earlier witnesses. Akin to Nandlal Sachdeva, even Prem

Chand has not stated that when they were searching for Baby

„S‟ the accused met them outside his house.

12. What actually happened has been disclosed with

graphic details by Shyam Lal PW-10. His testimony explains

the admissions of PW-1 and PW-3 when they were cross-

examined.

13. Shyam Lal has deposed as under:-

"On 16.1.2004 at about 8 pm we went to the house of Baby „S‟ as I had already an information that Baby „S‟ was missing from 6:30 pm. Relative of Baby „S‟ were searching her. I also started searching along with Arjun Dass, Santosh Kumar and others. At about 8:05 pm when we were crossing near the house of accused

Rajiv, we found the chappal of Baby „S‟ outside the house of accused. Santosh identified the chappal of Baby „S‟. At that time accused was standing outside his house. We asked him about the chappal and on our inquiry he got perplexed. We started going towards and when we covered four or five steps I saw towards the accused and found that he had entered in his house. I started running behind him and entered in his house. Arjun Dass, Prem and Santosh Kumar also entered in his house. We found that he was pushing the sofa set in his house. We found the leg of Baby „S‟ outside the sofa and the accused was trying to hide Baby „S‟ inside sofa. We raised a noise. Many people gathered there. We apprehended the accused. Baby „S‟ was unconscious. She was taken to hospital by Santosh and other people. We took the accused to the police post and handed over him to police. Later on I came to know that Baby „S‟ had died."

14. It is apparent that what actually happened was that

when the colony people were searching for Baby „S‟, their

search took them to the crossing near the house of the

appellant. They saw chappal of Baby „S‟ outside the house of

the appellant who at that point of time was standing outside

his house. He was questioned about the chappal outside his

house. Appellant got perplexed. The crowd moved towards

him. He ran inside and to hide his crime started pushing the

sofa inside the house to push it to the wall and at that point of

time Baby „S‟ was seen behind the sofa.

15. It is apparent that PW-1 and PW-3 have somewhat

blurred while deposing in Court. Graphic details have come

through the testimony of Shyam Lal PW-10.

16. Save and except the sole aberration herein above

noted in the testimony of PW-1 and PW-3, all eye-witnesses

have fully corroborated each other.

17. It is next urged that there is some conflicting

evidence as to whether chappal of Baby „S‟ was picked up by

the investigating officer from outside the house of the

appellant or whether somebody else picked up the chappal

and handed over to the investigating officer.

18. From the testimony of the various eye-witnesses

noted herein above it is apparent that a large number of

mohalla people had joined in the search to find Baby „S‟ and

under the circumstances there is bound to be some confusion

whether the chappal was allowed to remain at the spot, to be

lifted by the police or somebody picked up the chappal and

voluntarily handed over the same to the police.

19. What nails the guilt of the appellant is the eye-

witness account and the FSL report herein above noted.

20. We eschew reference to another controversy

pertaining to the recovery of a chunni at the instance of the

appellant, stated to be the ligature material used to

strangulate Baby „S‟. Our reason is that with so many people

participating there is bound to be confusion on trivial aspects

of the crime.

21. That the appellant was capable of performing sex

stands established with reference to the MLC Ex.PW-5/A of the

appellant. That Baby „S‟ was raped is not only established

from her MLC Ex.PW-16/A but even the post-mortem report

Ex.PW-4/A prepared by Dr.Arvind Thergaonkar PW-4 who

conducted the post-mortem. The same establishes the vagina

hymen freshly torn. There was a vaginal tear and bleeding

was seen. Abrasions were present on the right maxilla as also

below left eye, chin and left elbow. Contusion wounds were

found on the chin and the chest. Strangulation marks were

found around the middle of the neck. Internal examination

revealed that the thyroid, hyoid and cricoid cartilages were

congested. It was opined by him that a chunni could be a

ligature material used for the reason the injuries on the neck

suggested a soft ligature material being used.

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

23. 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 March 17, 2010 dk bainsla