Delhi High Court

Sanjay Kumar vs State on 7 February, 2014

Author: Kailash Gambhir

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Judgment delivered on: February 07, 2014

+     CRL.A. 988/2011
      SANJAY KUMAR                                    ..... Appellant
                      Through:       Ms. Rakhi Dubey, Advocate

                        Versus

      STATE                                             ..... Respondent
                        Through      Ms. Richa Kapoor, Additional
                                     Public Prosecutor for the State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                             JUDGMENT

KAILASH GAMBHIR, J

1. By this appeal filed under Section 374 of the Code of Criminal

Procedure 1973 (hereinafter referred to as Cr.P.C), the appellant herein

seeks to challenge the impugned judgment and order on sentence dated

25.11.2010 and 7.12.2010, respectively, whereby the learned Additional

Sessions Judge convicted the appellant for committing an offence

punishable under Section 302 Indian Penal Code, 1860 (hereinafter

referred to as "IPC") and sentenced him to undergo imprisonment for life

together with payment of fine of Rs. 10,000/- and in default thereof to

further undergo simple imprisonment for 6 months.

2. The case in hand unfolds one of the most horrific stories wherein a

minor girl who had not even seen six summers of her life, became victim

of the lustful desire of her neighbour. The deceased went to a vacant plot

to play with her friends and brother, where the accused lured the minor

girl to accompany him, by offering to get her a samosa. The innocent girl

being oblivious of the heinous and lustful intentions of the accused,

readily agreed and after informing her brother, went with the accused. It

was this vulnerable situation that encouraged the accused, who was

already having an evil eye on her, to harm and destroy the innocent life.

The accused in order to fulfil his momentary lust raped the innocent soul

and the inhumanity of his conduct was further aggravated when in order

to hide his sinful act, he brutally murdered her. It is inconceivable that for

the gratification of one's carnal desire, a human can turn into a devil, who

does not even spare an innocent child of such a tender age. It is upsetting

that a human life has zilch value for a few.

3. The facts of the case in brief are as under:-

"That on 26.10.2007, information was received regarding a dead

body lying near Oberoi farm at Police Station Kapashera, Delhi which

was recorded as DD No.24/A. SI Munshi was assigned the said DD on

which he along with Constable Naresh and constable Prem, proceeded

towards the spot and found Bamboo Singh with his son Vikram at the

spot. Meanwhile SI A.K Singh and Inspector Amrit Kumar then SHO

also arrived at the spot. The dead body was identified by Bamboo Singh

as Babli Kumari, his daughter, aged about seven years. Injuries on the

body of the victim i.e. forehead, head, face and private parts were visible.

Statement of Bamboo Singh was recorded wherein he complained that his

daughter went missing since previous evening after she had gone to play

with her brother Vikram and other children near his house. He clarified

that though he had been searching for the girl at his own level but had

also lodged a missing report at PS Kapashera on 26.10.2007. Lastly, he

stated that he was informed by his son Vikram that on 25.10.2007 at

about 07:00 pm Babli was taken by Sanjay on the pretext of giving her a

samosa. On seeing the dead body, Bamboo Kumar expressed suspicion

that Babli has been murdered by accused Sanjay."

4. To prove its case the prosecution in all examined 19 witnesses.

After the conclusion of the prosecution evidence, the accused was

examined under Section 313 Cr.P.C. and in his statement he admitted the

fact that he was living in a room, behind the room of the complainant,

Bamboo Kumar Singh. He also admitted that Bamboo Kumar Singh use

to live in a room in the house of Chetram near Ice Factory, Village

Kapashera, New Delhi with his family including his six years old

daughter, Babli (deceased). He also admitted that the deceased, Babli

was playing with the children including her brother Vikram in a vacant

plot behind her house on the evening of 25.10.2007 at about 7.00 p.m. He

also admitted that on 26.10.2007 at about 4.15 p.m., some children of the

locality informed the father of the deceased that a dead body of one

female child was lying in a vacant plot No. 8/26/1, near Oberoi Farm,

Kapashera, New Delhi.

5. Rest of the incriminating evidence as were put to him, were denied

by him. In fact he pleaded his innocence and his false implication by the

complainant at the instance of the landlord. He also categorically stated

that the entire evidence against him is false and fabricated. He also

claimed that in fact he was helping the complainant in searching his

daughter the entire night. He also stated that Yograj, son of the landlord

of Bamboo Kumar Singh had gone to the said plot and after his return

Yograj started beating him. The accused, however, did not adduce any

evidence in his defence.

6. Addressing arguments on behalf of the appellant Ms. Rakhi Dubey,

Advocate vehemently contended that the appellant has been falsely

implicated in the said case without their being any incriminating evidence

brought on record to prove his involvement in the commission of the said

offence beyond reasonable doubt. Counsel further contended that the

name of the appellant was roped in by the prosecution after the dead body

of the girl child was recovered from a vacant plot and before that even the

complainant never named appellant in the kidnapping of his daughter.

Contention raised by the counsel for the appellant was that DD No. 24A

was recorded by the police at 04.48 p.m., through which the police got

information about the dead body of a girl child lying in a vacant plot. The

police started investigation at around 5.30 p.m. At 6.15 p.m. the statement

of the father of the deceased (PW10) was endorsed for recording an FIR

and consequently the FIR was registered at 6.30 p.m. Counsel for the

appellant submitted that the father of the deceased for the first time

introduced the name of the appellant in his rukka statement wherein he

stated that his son Vikram had informed him on 26.10.2007 at about 4.00

a.m. that the appellant took away the deceased on the pretext of offering

her a 'samosa'. Counsel also submitted that no missing report was lodged

by the father of the deceased. Counsel further submitted that it is highly

unnatural that a father would not ask his son about his missing daughter

although he kept searching for her desperately till the said fact was

disclosed to him. Counsel further argued that the father of the deceased

was informed by his son at 4.00 a.m., however, no steps were taken by

him to inform the police about the involvement of the accused Sanjay

behind the kidnapping of his daughter. Counsel also argued that the story

of PW7 Vikram having fever and going off to sleep, is hard to be

believed as no father would wait for his child to wake up, when both the

children were playing together sleep when his other child got missing and

untraceable.

7. Counsel also argued that the police could easily arrest the appellant

from his house and this fact would clearly show that the appellant was

easily accessible and had he committed such ghastly crime, then he would

have certainly fled away. Counsel also submitted that the police

recovered the blood stained shirt, blood stained pant and underwear with

white stains from the room of the appellant in pursuance of his disclosure

statement, whereas the appellant in his disclosure statement stated that he

can get the underwear of the deceased recovered. Counsel also argued

that even the disclosure story is not in line with the post-mortem report,

as in his disclosure statement the accused stated that he raped the

deceased and then murdered her, but as per the post-mortem report the

deceased was first murdered and thereafter raped and the vaginal injuries

were not ante mortem.

8. Another contention raised by the counsel for the appellant was that

as per the post-mortem report, the deceased was badly injured with

various lacerated wounds over her body. However, the prosecution failed

to prove that the blood, which was found on the recovered clothes of the

appellant was that of the deceased, as the blood found on the clothes of

the deceased and that of the appellant, was of blood group B, which is the

blood group of the appellant and not of the deceased. Counsel also argued

that as per the CFSL report there has no reaction of blood group on the

semen found on the underwear and the vaginal swab.

9. Counsel also argued that PW7 Vikram was a child of 11 years and

his statement was not recorded before the magistrate, in order to rule out

the possibility of any tutoring. Counsel also argued that even at the time

of recording of his statement before the Court, the learned Trial Court

failed to take any precaution of ascertaining whether the child fully

understands the duty of speaking truth before the court of law. Counsel

thus submitted that it would be totally unsafe to rely on the testimony of

PW7 being a witness for last seen evidence. In support of her argument

counsel placed reliance on the judgment of State v. Rahul, reported in

2013 IV AD (Delhi) 745. Another contention raised by the counsel for

the appellant was that the abrasion on the penis of the appellant cannot be

used against him as an incriminating evidence, as it was not put to the

accused for explanation at the time of recording his statement under

Section 313 Cr.P.C. Based on these submissions counsel for the appellant

strongly pleaded for the acquittal of the appellant.

10. Refuting the said submissions of the counsel for the appellant Ms.

Richa Kapoor, learned APP for the State vociferously submitted that the

prosecution has fully succeeded to prove the case against the appellant

beyond any shadow of doubt and the learned Trial Court has discussed

each and every aspect of the case. Counsel also submitted that PW7,

Vikram is a witness of last seen evidence, as he had seen the accused

taking the deceased on the evening of 25.10.2007 after alluring her to buy

her a samosa. Counsel further submitted that the appellant has not taken

any defence that there was any kind of motive either on the part of the

child Vikram, his father or the landlord PW-2 to falsely implicate the

appellant in the said case. Counsel also submitted that the appellant in his

statement recorded under Section 313 Cr.P.C. admitted his presence on

the spot at the relevant time and, therefore, he cannot take shelter under

the bogus plea of false implication. Counsel also argued that the

complicity of the appellant is also proved with the help of medical and

scientific evidence proved on record by the prosecution. Counsel also

argued that the appellant has failed to offer any explanation of the injury

found on his penis, as per the MLC report proved on record as Exhibit

PW-8/A and in the absence of any such explanation, there cannot arise

any doubt about an involvement of the appellant in the commission of the

said deadly crime. Based on these submissions counsel for the respondent

strongly urged for upholding the impugned judgment and order on

sentence passed by the learned Trial Court.

11. We have heard learned counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by the counsel for the parties. We have also perused the records of the

learned Trial Court.

12. The case in hand is based on circumstantial evidence and the

principles to base a conviction of an accused on circumstantial evidence

are well settled. In the matter of Sharad Birdhichand Sarda v. State of

Maharashtra, (1984) 4 SCC 116, the Hon'ble Supreme Court has laid

down five tests to be satisfied in a case based on circumstantial evidence:

"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved, and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

13. In the present case, a girl child of 6 years went missing on the

evening of 25th October, 2007. She had gone to play with other children

alongwith her brother - Vikram to a vacant plot at the back of her house.

The girl did not return till 09:00 p.m. and the father of the deceased,

Bamboo Kumar (PW-10) desperately started searching for her. As per

PW-10 he lodged a missing report of his daughter, with the local Police

Station on 26th October 2014. At 04:15 pm when PW-10 was at his house,

some children informed him that the dead body of a girl was lying at a

vacant plot near Oberoi Farm, Kapashera, Delhi. On hearing such

shocking news, he reached at the said plot and found his daughter lying

dead with several injuries on her face, forehead and head with blood

spread all over. He immediately revealed this fact to his landlord -

Yograj @ Kalu who in turn informed the police. PW-10 in his statement

categorically stated that during the day hours he was informed by his son,

Vikram that on the last evening he was told by his sister, Babli that she

was leaving with accused - Sanjay to eat samosa and thereafter, Vikram

had himself seen Sanjay accompanying Babli. In his very first statement,

PW-10 raised a suspicion on the accused Sanjay behind such brutal

murder of his daughter. On the said statement of complainant - Bamboo

Kumar (PW-10), FIR was registered. The spot was inspected by the crime

team, one brick, one shirt and some garbage; all stained with blood were

found and seized by the police. The police also found that the blood was

oozing out of the private part of the deceased girl, which suggested that

the deceased girl was even raped. The accused was arrested on the same

night while he was coming out from his house. In his disclosure

statement, he got recovered a shirt, a pant and an underwear worn by him

at the time of commission of the crime. The body of the deceased was

sent to Deen Dayal Upadhyay Hospital for post mortem while the

accused was medically examined at Safdarjang Hospital.

14. As per the post mortem report proved on record as Ex.PW-11/A,

the cause of the death of the deceased as opined by the doctor was due to

combined effect of throttling (manual), smothering and head injury

caused by a forceful, blunt impact using weapon like brick or stones etc.

As per the MLC, the manner of death was homicidal and the intercourse

was performed after the death of the deceased, causing lacerations,

bruises on vaginal wall, collection of haematoma in vaginal canal and

rupturing of cervix of uterus. The time of death opined in the post mortem

report was 40-42 hours since death. As per the MLC of the appellant

proved on record as Ex.PW-8/A and PW-10/DA, there was nothing to

suggest that the accused was not capable of performing sexual

intercourse. On local examination of external genitalia of the accused at

his glance penis, abrasion of 0.6 x 0.4 cm was found.

15. As per the biological and serological analysis of the brick, shirt,

garbage material, blood stained clothes of both the accused and deceased

and blood samples of both the accused and the deceased, the expert

concluded that the blood present on the shirt, pant of the accused, frock,

inner of the deceased and on the shirt found on the spot was of blood

group 'B'. Semen stains were also detected on the underwear of the

accused as well as on the vaginal swab of the deceased.

16. As already stated above, there is no direct evidence as to who

committed the said barbaric and horrendous crime. The only question

which is most fundamental one is whether the prosecution succeeded in

proving with cogent and clinching evidence of all the links in the chain of

circumstantial evidence, to drive home the guilt of the accused totally

inconsistent with the plea of his innocence.

17. Dealing with the first contention raised by the counsel for the

appellant that the father of the deceased in his court statement stated that

his son Vikram informed him at about 4.00 a.m. on 26.10.2007 that the

appellant took away the deceased on the pretext of offering her a samosa,

then why no steps were taken by him to inform the police about the

involvement of the accused Sanjay behind the kidnapping of his daughter.

Counsel also argued that the story of PW-7, Vikram having fever and

going off to sleep, is hard to be believed, as no father would wait for his

one child to sleep when his other child was missing and untraceable.

Counsel argued that no missing report was lodged by the father of the

complainant and it is also highly unnatural that a father would not ask his

son about his missing daughter although he kept searching for her

desperately till he was informed about the said incident.

18. In the present case, PW-10 testified in his court deposition that the

accused was going with the deceased on the evening of 25th October 2007

as was told to him by his son Vikram and the said testimony of PW-10

remained unchallenged and unrebutted. PW-10 in his cross-examination

clarified as to why he did not wake up his son because his son Vikram

was suffering from fever and he went to sleep when he returned home,

after playing at the vacant plot along with other children. The time of

4.00 a.m. for giving such information by his son Vikram has been rightly

held to be due to typographical error by the learned Trial Court and

possibly this time could be 4.00 p.m. or some other time on 26th October

2007. Nevertheless, the time, as to when he was told by Vikram, about

the said fact of accused in the company of deceased is not of much

significance as PW-10, in his very first statement, disclosed to the police

that it was during day hours that his son told him that appellant was

accompanying the deceased, Babli for offering her samosa. We therefore

do not find any force in the contention raised by the counsel for the

appellant with regard to the said time of 4.00 a.m., stated by PW-10 in his

cross-examination. Further as per the prosecution, at 04:15 p.m., PW-10

was informed by some children of their locality that the dead body of a

girl was lying in Oberoi Farms, Kapashera and thereafter PW-10

immediately informed about the said incident to the police and thus DD

No.24A was recorded at 04:48 p.m. Moreover we also cannot lose sight

of the fact that the defence has not attributed any motive against PW-10

to falsely implicate him in the said case. It is an undeniable fact that there

was no enmity or any kind of hostility between the accused and the

complainant, as both of them were tenants under the common landlord

and were residing as neighbours.

19. The next contention raised by the counsel for the petitioner was

that the police could easily arrest the appellant from his house and this

fact would clearly show that the appellant was easily accessible and had

he committed such ghastly crime then he would have certainly fled away.

In the matter of Baboo and others vs. State of Madhya Pradesh reported

in AIR1994SC171, the Hon'ble Supreme Court held that the

circumstance that the accused did not abscond cannot be stretched to the

extent of rejecting the evidence of other witnesses. Thus we are not

persuaded by this contention of the counsel for the appellant, as merely

because the accused got apprehended from his house, the evidence

indicating his guilt cannot be put into cold storage and it cannot be

concluded that the accused has not committed the said offence.

20. The next contention raised by the counsel for the appellant was that

the police recovered the blood stained shirt, blood stained pant and

underwear with white stains from the room of the appellant in pursuance

of his disclosure statement, whereas the appellant in his disclosure

statement stated that he can get the underwear of the deceased recovered.

This argument of the counsel is worth outright rejection as it is clearly

stated by the accused in his disclosure statement that he could get the

recovery of his underwear as well as the underwear of the deceased done.

Thus merely because the underwear of the deceased could not be

recovered, it cannot be said that the recovery of the underwear of accused

is not upon his information.

21. The next contention raised by the counsel for the appellant was that

when the police found a shirt from the place of incident then how another

male shirt could be recovered from the room of the accused. Although the

shirt which was recovered from the spot was also found to be carrying the

same blood group 'B', but on perusal of the endorsement of the police on

the rukka statement, there is reference to the presence of many torn off

clothes near the garbage, out of which one blood stained shirt was also

found. We therefore cannot attach any significance to the recovery of a

blood stained shirt from the spot, it being a part of many other torn old

clothes, to raise suspicion on the prosecution case, which otherwise finds

corroboration from all other corners.

22. We also find no force in the contention raised by the counsel for

the appellant, that in the disclosure statement made by the appellant, he

confirmed, that he first raped the victim and then murdered her whereas

the post mortem report states that the deceased was murdered first and

thereafter raped. In the present case no charge was framed against the

appellant under Section 376 IPC and therefore, no evidence to this effect

was led by the parties and in this background, the question whether the

deceased was raped first or raped thereafter becomes totally irrelevant.

23. The next contention raised by the counsel for the appellant was that

the blood, as on the clothes of the deceased and that of the appellant t was

of B group, i.e. the blood group of appellant and not of the deceased

although the deceased had suffered grievous injuries. As per the FSL

report, the blood found on the frock and the inner of the deceased i.e.

Exhibit 8a and 8b was blood group "B" and also the blood found on the

shirt and trouser of the accused i.e. Exhibit 4a and 4b was of blood group

"B". Further the injuries were substantially suffered by the deceased only

and the blood on all these exhibits was certainly of deceased and not of

appellant. Thus it appears that the blood group of the deceased was also

of "B" group and therefore the appellant cannot be allowed to take

advantage of this fact by contending that the blood found on all these

exhibits is of accused and not deceased. We therefore do not find any

merit in the argument of the counsel for the appellant.

24. Dealing with the next contention raised by the Counsel for the

appellant that PW-7-Vikram was a child below 11 years of age, therefore

the learned magistrate was required to take due precaution to test his level

of understanding the entire situation and speaking of truth, before the

court and also to rule out all the possibilities of his being a tutored child.

This contention raised by the counsel for the appellant had some force

and therefore it is essential for this court to examine the credibility of this

witness properly. It is a settled legal position under section 118 Indian

Evidence Act, 1872, the evidence of a minor cannot be rejected solely on

the ground that he is a minor and a minor as also a competent witness like

any other witness if he understands the nature of question put to him and

is in a position to give rational answers to it. In the matter of Dattu

Ramrao Sakhare v. State of Maharashtra reported in (1997) 5 SCC 341

it was held as follows :

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."

25. In the present case, PW-7 at time of his court deposition clearly

stated that he had personally seen his sister - Babli going with the

accused person - Sanjay to eat samosa at 7 p.m. He further deposed that

he disclosed this fact to his father on the next day in the morning. PW-7

was thus a witness of last seen evidence. The defence did not put any

question to him to dispute the presence of the accused with Babli on the

said evening of 25th October 2007, thus the statement of this witness

remained uncontroverted. Further the accused in his statement recorded

under Section 313 of Cr. P.C. admitted the fact that the deceased Babli

was playing with other children including her brother Vikram in a vacant

plot behind his plot. The cross-examination of PW-7 if read in

conjunction with the statement recorded under Section 313 of Cr. P.C.,

unequivocally suggests that not only the accused was aware of the fact

that the deceased Babli was playing at the vacant plot behind his house

alongwith her brother Vikram but he was also present in the said vacant

plot. The evidence of this witness also find corroboration from the Post

mortem report of the deceased according to which the death of the

deceased would have occurred at around 6:00 to 8:00 p.m. on 25.10.2007

i.e. around the time when this witness saw the accused accompanying the

deceased.

26. In this background, even though the magistrate did not record his

opinion that if the child understands the duty of speaking truth, yet

considering the fact that there is nothing on record to suggest that at any

stage the said child witness had shown any kind of nervousness or

hesitation in giving evidence before the court of law and that his evidence

is fully supported by other evidences, the statement of PW-7 cannot be

discarded as a whole.

27. We further do not find any force in the contention raised by the

learned counsel for the appellant that the evidence of abrasion found on

the penis of the accused was not put to the appellant while recording his

statement under Section 313 of Cr. P.C. as both the said MLCs Ex.PW-

8/A and Forensic Report-Ex.PW-10/DA were put to him through

question No.16 and in response, the accused admitted the same to be

correct.

28. In view of all these circumstances, we have no manner of doubt

that the prosecution has satisfactorily and firmly established the following

evidence on record:-

I. The evidence of the accused being last seen with the

deceased, given by PW-7 well corroborated by the testimony

of PW-10 as well as the post mortem report as stated above.

II. The recoveries made at the instance of accused supported by

the evidence of Yograj (PW-2) who was a witness to the

recovery of pant, shirt and underwear from the room of the

appellant.

III. The FSL report proved on record as Ex.PW-18/A fully

establishing the fact that the blood found on the shirt and

pant of the accused match with the blood detected on the

clothes of the deceased, i.e. baby frock and inner wear and

also that the human semen were also detected both on the

underwear as well as the vaginal swab of the deceased.

IV. The MLC of the accused clearly showing that the glance

penis of the accused was found reddened under surface and

there was a presence of abrasion of 0.6 x 0.4 cm.

V. The failure of the accused during his examination under

section 313 Cr.P.C. to give any explanation of all these

injuries. With this local injury on the glance penis of the

appellant of which no explanation came forth from the

accused either in his defence or while recording his

statement under Section 313 of Cr. P.C., there can arise no

doubt on the complicity of the appellant in the commission

of the said brutal crime.