Lal Dev Prasad vs State
2010 Latest Caselaw 1673 Del

i.1
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision:25th March, 2010

+                             CRL.APPEAL NO.216/2010

        LAL DEV PARSAD                            ..... Appellant
                  Through:          Mr.S.B.Dandapani, 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 the Reporter or not?

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

PRADEEP NANDRAJOG, J. (Oral)

1. With consent of learned counsel for the parties,

while admitting the appeal on 2nd March 2010, it was directed

that the appeal would be listed for hearing today in the

category of 'After Notice Miscellaneous Matters'.

2. Accordingly, the appeal has been heard for final

disposal today.

3. Believing the testimony of Smt.Sunita PW-2, the

learned Trial Judge has convicted the appellant for the offence

of having sodomised Baby 'S' as also for having murdered

Baby 'S'.

4. That Baby 'S' was sodomised stands established

through her post-mortem report Ex.PW-15/A proved at the trial

by Dr.Anil Shandil PW-15. External injury No.2, being a bruised

tear with abrasion and laceration extending from the anal

margins into the anus itself with adherent specs of blood, show

that Baby 'S' was sodomised.

5. That Baby 'S' was strangulated to death as a result

of manual strangulation is evidenced from external injury No.1

on the neck of Baby 'S' which records multiple pressure

abrasion with bruising and crecentic marks over front and

sides of neck and base of chin. Indeed, the internal

examination shows extravassation of blood in the neck

muscles and the tissues. Cause of death recorded is asphyxia

resulting from manual strangulation.

6. Information of Baby 'S' being found dead next to

her mother in the jhuggi where Baby 'S' slept with her mother

in the intervening night of 17th and 18th June 2005 was

reported at the local police station by Rajbir PW-11, a jhuggi

dweller in the same complex, as deposed to by Rajbir himself.

The information was recorded at the police station vide DD

No.29A at 3:45 AM i.e. when dawn had yet to rise on the

horizon and it was still night time of the intervening night of

17th and 18th June 2005.

7. Copy of DD No.29A was entrusted to SI Bhagwat

Prasad for investigation and accompanied by Insp.Ramesh PW-

14, he i.e. SI Bhagwat Prasad went to the place where the

crime was committed i.e. the jhuggi cluster opposite factory

No.F-1862, DSIDC Complex, Narela. As deposed to by

Insp.Inderjeet Singh PW-19, he was the Addl.SHO of PS Narela

and even he received information of the crime and even he left

for the spot, where he met SI Bhagwat Prasad and

Const.Ramesh. Since, in the meanwhile the PCR officers had

removed Baby 'S' to MB Hospital, he proceeded to the

hospital, where he learnt that Dr.Jai Kumar PW-5, the Medical

Officer of MB Hospital had, after examining Baby 'S', declared

her 'brought dead', as per MLC Ex.PW-5/A. Insp.Inderjeet

Singh took a copy of the MLC and he met the mother of Baby

'S', namely, Smt.Sunita PW-2, whose statement Ex.PW-2/A was

recorded by him. Making an endorsement Ex.PW-19/A

beneath the statement of Smt.Sunita, he sent the same for FIR

to be registered recording, therein that the time of dispatch of

the teherir was 11:30 AM on 18.6.2005.

8. Vide DD No.9A, the FIR Ex.PW-12/B was registered

for the offence of murder at PS Narela by HC Sumitra PW-12.

9. In her statement Ex.PW-2/A, Smt.Sunita informed

that along with her husband and children she was residing at a

jhuggi opposite factory No.1862 and her husband used to ply

rickshaw on hire to transport material in between the factories

at Narela. She was blessed with 4 children and eldest being a

daughter, Baby 'S', aged 9 years. That the appellant used to

visit their jhuggi complex and was a friend of her husband.

Last night she prepared fish curry and rice. Her husband and

the appellant consumed alcohol. The family members i.e. her

children ate fish curry and rice. The appellant and her

husband completed their drinking session by 12:00 midnight

and took food. She i.e. Sunita slept along with her daughter

Baby 'S' and her son Deepak next to the door of their jhuggi.

They unrolled a plastic sheet on the floor and all three i.e. she,

her daughter Baby 'S' and her son Deepak slept thereon. Her

husband slept on his rehri parked just outside along with her

other daughters. Appellant went to sleep in the jhuggi of one

Guddu (Guddu Prasad PW-7) which was adjoining their jhuggi.

Around 3:00 in the night, the crackling sound of plastic sheet

disturbed her sleep and as she opened her eyes she saw the

appellant place her daughter Baby 'S' next to her on the

plastic sheet. She enquired from the appellant as to where

from was he bringing her daughter. He responded that he saw

her daughter sleeping elsewhere. She shook her daughter

who did not respond. She sensed something wrong. She

yelled. The appellant ran away. Jhuggi dwellers in the

neigbourhood gathered and somebody informed the police

who took her daughter to the hospital.

10. Needless to state, the appellant was the suspect.

He was searched out and apprehended the same day and was

got medically examined at RHTC Najafgarh by Dr.Anand Bihari

PW-4 who wrote on the MLC Ex.PW-4/A that the appellant was

capable of sexual intercourse and that smegma was absent on

the penis of the appellant. As deposed to by Dr.Anand Bihari,

he took the semen sample and blood sample of the appellant

and handed over the same along with the undergarment and

loose pubic hair of the appellant to the investigating officer.

11. The slides prepared from the anal swab and the

vaginal swab of the young unfortunate girl, were sent for

forensic examination and relevant would it be to note that

semen has been detected on the swab pertaining to the anal

swab.

12. Deposing in Court as PW-2, Smt.Sunita, the mother

of the deceased fully supported the case of the prosecution

and has deposed substantially in sync with her statement

Ex.PW-2/A.

13. Nothing has been shown to us with reference to her

testimony which discredits her version.

14. Ram Dayal PW-3, the father of the young

unfortunate girl, on being cross-examined stated that there

was no place between his rickshaw rehri and the place where

his wife and children were sleeping and that there was no

intervening space for any person to enter.

15. Guddu Prasad PW-7 has deposed that at around

12:00 PM in the intervening night in question the appellant

came to his jhuggi to sleep after consuming liquor and eating

fish and rice at the jhuggi of Ram Dayal. He deposed that at

around 2:30 AM, wife of Ram Dayal raised an alarm. He i.e.

Guddu Prasad and his wife woke up and learnt that the

appellant had left Baby 'S' in her jhuggi in a dead condition.

He deposed that the mother of the child was so saying.

16. Relevant would it be to note that Guddu Prasad has

not been cross-examined save and except a suggestion put to

him which he admitted, that he did not see the accused

commit the offence.

17. Suffice would it be to state that the testimony of

Guddu Prasad would be res gestate evidence of the conduct of

the mother of Baby 'S' i.e. Smt.Sunita PW-2. Her

contemporaneous utterance in the middle of the night that the

appellant had fled after leaving her daughter next to her in her

jhuggi, as deposed to by PW-7, corroborates what has been

deposed in Court by Smt.Sunita.

18. Two submissions have been urged at the hearing of

the appeal before us. Firstly that the testimony of the father

of the victim as also the fact that there were jhuggies nearby,

render it improbable that the appellant would be in a position

to commit the crime as sought to be proved. The second

submission is that DNA analysis of the semen sample of the

appellant with reference to the semen detected on the anal

swab of the deceased not having been done, the appellant

should be entitled to the benefit of a doubt.

19. As regards the first plea, suffice would it be to state

that it has not been disputed that Baby 'S' was found dead

next to her mother in the jhuggi where she and her mother

slept, with her father sleeping on the rehri at the door outside

the jhuggi. That Baby 'S' has been sodomised and smothered

to death is also not in dispute. That a crime has been

committed is not in dispute.

20. Now, Baby 'S' could be sodomised and strangulated

to death either in the jhuggi itself where she slept or

somebody took her out and after committing the offence

brought her back. That Baby 'S' was sleeping next to her

mother with her father sleeping outside renders it next to

impossible that she could be sodomised inside the jhuggi and

then strangulated to death. It is apparent that the young girl

who was in deep slumber was removed to a spot somewhere

else and after the crime was committed, to confuse the

investigator, she was brought back.

21. We note that the month of June in Delhi is a fairly

hot and humid month. It is difficult to sleep in a jhuggi till the

temperature cools. It is apparent that the young victim slept

late night and was in deep slumber. She was aged 9 years.

Experience tells us that children of the said age have a deep

sleep and in their sleep can be shifted from place to place. We

have seen this and experienced this whenever there are

marriage functions in the families. As elders party late night,

children sleep. They are shifted from the drawing room to the

bed room of the house without their sleep being disturbed.

22. It is apparent that the appellant could move into

the jhuggi where Baby 'S' was sleeping and lifted her and took

her to some other spot. After subjecting the poor little girl to a

sexual assault and strangulating her, he brought her back.

Thus, nothing much turns on the admissions of the father of

the girl that there was no place for anyone to enter the jhuggi.

23. That the father of the young girl detected nobody

move into the jhuggi is explainable. He was drunk. That PW-2

could not detect anyone enter her jhuggi when her daughter

was removed is explainable because she was in deep slumber.

Be that as it may, the fact of the matter remains that

somebody has removed her daughter away and has brought

her back. The only issue is as to whether the appellant is the

person.

24. From the testimony of PW-2 it is apparent that the

appellant was seen by her as the person putting her daughter

besides her side at around 3:30 AM in the night.

25. Guddu Prasad PW-7 has categorically deposed that

around 12:00 in the night the appellant came to sleep in his

jhuggi. He has deposed to the res gestate conduct of PW-2.

Relevant would it be to note that he has not deposed that

when all this was happening, the appellant was still sleeping in

his jhuggi. It is apparent that the appellant was nowhere to be

seen at around 3:30 AM in the night. His abscondence is

another piece of circumstantial evidence against him.

26. That no smegma was found on the penis of the

appellant the day next is also indicative of that he had

indulged in a sexual relationship. We note that the appellant

has nowhere explained the circumstances under which

smegma was not detected on his penis. We note that as per

the MLC the appellant had not undergone circumcision.

27. No doubt it was desirable to subject the semen of

the appellant to a DNA analysis with reference to the semen

detected on the anal swab of Baby 'S' but that does not mean

that Courts should close its eye to the clinching evidence

brought on record, which nails the guilt of the appellant.

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

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

this decision be sent to the Superintendent, Central Jai, Tihar

to be supplied to the appellant.

30. We express our gratitude to Mr.S.B.Dandapani,

learned counsel for the appellant and Mr.M.N.Dudeja, learned

counsel for the State for having enabled this Court to decide

the instant appeal within less than a month of the same being

admitted.

31. It is of reassurance to the judicial system and to the

citizens of this country that the stigma of judicial delays is

being successfully wiped out. The trial of the instant case has

proceeded fairly fast. The appellate disposal has also been

quick.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

March 25, 2010 dk