Delhi High Court
State vs Bharat Kumar @ Manoj @ Mannu on 18 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: September 09, 2014
% Judgment Delivered on: September18 , 2014
+ DEATH SENTENCE REF. 7/2013
STATE ..... Petitioner
Represented by: Mr.Varun Goswami, APP for State
with Inspector Satyavir Singh,
SHO/Bharat Nagar, Inspector
Sunder Singh, SHO/Palam
Village, HC Ramphool & HC
Pushap Raj, MHC(M), C.P.
versus
BHARAT KUMAR @ MANOJ @ MANNU ..... Respondent
Represented by: Mr.K.Singhal, Advocate.
+ CRL.A. 1662/2013
BHARAT KUMAR @ MANOJ @ MANNU ..... Appellant
Represented by: Mr.K.Singhal, Advocate.
versus
STATE ..... Respondent
Represented by: Mr.Varun Goswami, APP for State
with Inspector Satyavir Singh,
SHO/Bharat Nagar, Inspector
Sunder Singh, SHO/Palam
Village, HC Ramphool & HC
Pushap Raj, MHC(M), C.P.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
Death Ref. 7/2013 & Crl.A. 1662/2013 Page 1 of 31
MUKTA GUPTA, J.
1. Karuna (name changed) aged just 6 years was too young to realise
that on November 15, 2010 in the evening when she stepped out of the
house she would never return to the loving arms of her mother and the
comfort of her father.
2. The process of law was set into motion on November 15, 2010 by
Bhupender Poddar PW-3 the father of Karuna who stated that he had gone to
his night duty at 8.30 PM. Between 10.30 to 11.00 PM he received a phone
call from his wife informing that their daughter Karuna was missing and was
not traceable at home. Bhupender rushed back home. Both he and his wife
frantically searched their missing daughter but could not find her. At 11.45
Bhupender made a PCR call from his mobile No. 9716811943. When the
PCR and local Police visited his house he got recorded his statement
Ex.PW-3/A informing that his daughter Karuna aged 6 years, height
approximately 3 feet, fair complexion, round face, medium built wearing
red-white flowered shirt, black coloured jeans pant, black colour string
around the neck and yellow coloured chappal, playing outside the home at
about 8.30 PM was not traceable. Thus he suspected that someone had
enticed his daughter and kidnapped her and legal action be taken. On the
statement FIR No. 230/2010 under Section 363 IPC was registered at PS
Palam Village.
3. SI Chand Singh who was assigned the investigation searched Karuna
by making inquiries from the local residents and neighbours. He met Ms.
Rosy @ Kaka PW-1 residing in the neighbourhood of Bhupender who
informed that she had seen the missing girl Karuna going towards main road
with another neighbour i.e. Bharat Kumar on November 15, 2010 at about
8.30 PM and the child was eating something. Statement of Rosy was
recorded and enquiries were made from the parents of Bharat, however they
could not give any definite answer. Moreover, Bharat Kumar could not be
found at his residence on that day i.e. November 16, 2010. Further search of
Karuna was made.
4. On November 18, 2010 at 11 O'clock an information was received
vide DD No. 15A at PS Dwarka South informing that one 8-10 year old girl
was lying dead near Petrol Pump near Ganga Apartment, Sector-6, Dwarka.
ASI Dharampal was deputed to go to the spot. It appeared to him that the
deceased was raped and murdered and the deceased being a little girl of
around 8 years he was of the opinion that she must be of some
neighbourhood area and thus he sent message to the Police Station and
control room which was also received at PS Palam Village and recorded
vide DD No. 16A at 1.45 PM.
5. On receipt of this information from the Control Room, SHO, PS
Palam Village and other officials reached the spot. SI Chand Singh also
reached the spot along with Bhupender. The dead body was identified to be
that of Karuna. Her black colour jeans pant and her yellow sleepers were
lying near her body. She was wearing one bangle, however the other bangle
was lying broken near her body. There was a black thread around the neck
of Karuna. One used packet of Kurkure was also lying, one big stone
having blood and hair on it was also lying near the dead body. Blood was
also lying on the grass and soil. Front tooth of Karuna was also broken.
Articles were seized in the presence of Bhupender who signed the seizure
memo Ex.PW-3/B. Dr.Rachna Pandey prepared the MLC of Karuna and
declared her brought dead and post-mortem was done by Dr.Yogesh Tyagi.
Again Police and Bhupender went to the house of Bharat Kumar, however
he was not available.
6. On the night of November 18th and 19th, 2010 Insp. Satbir Singh PW-
30 who was assigned the investigation after the body was recovered received
secret information that Bharat Kumar had been seen at the bus stand of
Manglapuri. Accordingly Bharat Kumar was arrested vide memo Ex.PW-
26/A. Pursuant to the disclosure statement Ex.PW-26/C made by Bharat
Kumar his clothes i.e. jeans pants, shirt and underwear were recovered from
the house of his maternal uncle in village Jhawli, district Alwar, Rajasthan.
The underwear had been washed but however there were certain stains on
the clothes and thus the same were seized. Bharat Kumar also pointed out
the place from where he boarded a TSR with Karuna and the STD shop from
where he had purchased the packet of Kurkure. Bharat Kumar also pointed
out the place of incident. Vide Ex.PW-26/A Bharat Kumar was medically
examined and his blood sample, semen samples, public hair sample were
taken vide seizure memo Ex.PW-26/A.
7. During the course of trial the prosecution examined 30 witnesses
when an application was filed by the learned APP under Section 311 Cr.P.C.
for summoning Dr.Dhruw Sharma from FSL Rohini. When the matter was
listed for final arguments learned APP pressed his application and pointed
out that at the time of post-mortem on the body of deceased doctor had taken
samples of vaginal swab and during the medical examination of Bharat
Kumar, his blood, semen and pubic hair were taken which were sent to FSL
for analysis, however due to inadvertence the I.O. did not request the FSL
authorities to conduct DNA profile in respect of the exhibits, hence the
application be allowed.
8. Vide order dated November 16, 2012 the learned Trial Court observed
that samples of deceased and accused were already there with the
prosecution and thus directed that samples/exhibit No. 7 and 11 which were
sent to the FSL authority be sent for further DNA profiling. On November
26, 2012 again the matter was taken up on an application filed by I.O. for
breaking seal of exhibits and resealing the seal before the learned MM and
giving the specimen seal so that the same can be deposited with the FSL
Rohini. This was done and matter was fixed for November 30, 2012 when
the investigating officer informed that the FSL authorities were contacted
and they had advised that fresh blood samples of Bharat Kumar would be
required for DNA analysis. Hence fresh blood samples were also taken and
the same were sent for DNA profiling.
9. After the receipt of DNA report, 6 more witnesses were examined.
Bharat Kumar also examined his father as DW-1. Pursuant to arguments the
learned Trial Court on the basis of evidence on record convicted Bharat
Kumar for offences punishable under Sections 363/376/302 IPC vide the
impugned judgment dated November 11, 2013 and awarded the sentence of
imprisonment for 3 years with fine of `3000/- for offence punishable under
Section 363 IPC, imprisonment for life and a fine of `50,000/- for offence
punishable under Section 376 IPC and sentence of death for offence
punishable under Section 302 IPC with fine of `50,000/-. Thus in the
Criminal Death Reference 7/2013 before this Court, the State seeks
confirmation of the sentence of death to Bharat Kumar and by Criminal
Appeal No. 1662/2013 Bharat Kumar challenges his conviction.
10. Since this is reference under Section 366 Cr.P.C. in terms of the
decision of Supreme Court in AIR 1957 SC 469 Jumman Vs. State of
Punjab, and (1975) 3 SCC 39 Charan Singh and Ors. Vs. State of Punjab
this Court is required to reappraise the entire evidence and relook at the facts
and law.
11. The prosecution led the evidence of 36 witnesses to prove its case.
Rosy @ Kaka PW-1 is a witness of last seen. She deposed that on
November 15, 2010 she was cleaning the floor outside her house when she
saw Bharat living in a house opposite her house in the same gali. On that
day at about 7.30/8.00 PM she had seen Karuna aged about 5 years residing
in the neighbourhood playing in the gali. Then she saw Bharat taking
Karuna along with him towards main road. The evidence of this witness has
been challenged on the ground that there was a previous enmity between the
families and in the cross-examination this witness admitted that Bharat had
assaulted her brother-in-law due to which her brother-in-law had sustained
head injuries. This witness was recalled for examination on an application
filed by Bharat Kumar under Section 311 Cr.P.C., however in further cross-
examination she again denied that she was deposing falsely or that she had
not seen Bharat Kumar while taking away Karuna.
12. Bhupender Poddar PW-3 father of Karuna deposed that on November
15, 2010 he had gone for his duty at 8.30 PM. At about 10.30 - 11.00 PM
he received a phone call from his wife informing that Karuna was not
traceable at home. He immediately came back home and searched his
daughter, however he could not find her and thus he went to PS Palam
where he informed SI Ranvir Singh regarding the missing of his daughter.
He also made a call at 100 number at about 11.45 PM on that night. Thus
the PCR and local Police reached his home and his statement was recorded
vide Ex.PW-3/A on the basis of which FIR No. 320/2010 was recorded
under Section 363 IPC. He disclosed the steps taken by SI Chand Singh for
searching his daughter. According to him SI Chand Singh accompanied him
to Phase-I, Manglapuri where they searched for his daughter when Rosy
informed that she had seen his daughter with Bharat Kumar on November
15, 2010 at about 8.30 P.M. Statement of Rosy was recorded. SI Chand
Singh made inquiries from the parents of Bharat, however they did not give
any definite answers and even Bharat Kumar could not be found on that day.
On November 18, 2010 he was again joined in the operation to search when
SI Chand Singh received a phone call at about 2 PM informing that the dead
body of a girl child had been found at Sector-6, Dwarka. He along with SI
Chand Singh went to the spot where SHO and other Police officials were
already present. He saw his daughter lying in the park. He further deposed
that the black colour jeans pant and yellow sleeper of his daughter were
lying by the side, she had one bangle in her one hand and other bangle was
broken, she was wearing black thread around her neck. He identified the
dead body to be that of his daughter Karuna and according to him it
appeared that somebody had killed her by brutally smashing her head
against the stone. He also noticed partial dried blood lying at the spot near
the dead body. He exhibited the various recoveries made in his presence.
The suggestion given to Bhupender in his cross-examination was that Bharat
Kumar had also accompanied Bhupender for searching his daughter on
November 15 and 16, 2010 which fact was denied by Bhupender, however
he admitted that father of Bharat Kumar was also searching his daughter in
his community and further stated that he was not making the searches with
them and appeared to be nervous.
13. Raghuvinder PW-7 is the witness who first saw the dead body of a
girl child aged about 6/7 years lying in the park and made the PCR call. He
deposed that in November 2010 he was working on a contract with DDA to
clean the DDA parks by levelling and dressing the grounds. On November
18, 2010 at about 11 AM he along with his labour was present in the DDA
park, Sector-6 behind Petrol Pump when they saw dead body of a girl child
aged 6-7 years lying in the park. He immediately informed the PCR from
his mobile number 9811667959. PCR reached in five minutes. This witness
has not been cross-examined.
14. Dr.Yogesh Tyagi PW-18 conducted the post-mortem examination of
Karuna and noticed the following external injuries:
(1) Fresh abrasions are present over (a) back of left hand,
vertically placed 3x2 cms. (b) Right hypochondrial region 3x1
cms (c) Midline front of neck of size 2x1 cms, 1.0 cms above
suprasternal notch.
(2) Fresh lacerated wounds over (a) right index finger distal
phalanx 1x0.5x0.5 cms (b) Left great toe, 4th and 5th toes, and
1x0.5x0.5 cms each (c) Right small toe 0.5x0.5x0.5 cms (d)
middle of forehead, vertically placed, 2.5x0.5xbone deep (e) left
eyebrow, horizontally placed, 2.5x0.5x0.4 cms (f) Right
forehead 5x3xbone deep, skin and soft tissue is missing (g) Left
forehead 7x5xbone deep, skin and soft tissue is missing (h)
Vertically placed over left upper lip and left side nose,
4x0.5xbone deep (i) right side of chin of size 3x2xcms bone
deep, horizontally places with fracture of mandible. (j) Left chin
3x2cms x bone deep. (k) Tip of chin of size 1x1x0.5 cms.
(3) Fresh contusion of (a) right eye with hemorrhage of
conjunctiva (b) Right angle of mandible 5x5 cms with fracture
of right ramus of mandible with extravasations of blood.
15. Besides the above noted external injuries he also noticed a fresh tear
in the vaginal opening at 6 O'clock position of the size 1.5 x 0.5 x 1.0 cms,
Multiple customs and multiple tears were present all around on vaginal walls
and few maggots were present all around vaginal opening. Dr.Yogesh Tyagi
exhibited the post-mortem report vide Ex.PW-18/A and opined the cause of
death to be shock due to injuries to head and face produced by multiple
blunt force impact. All injuries were ante-mortem in nature. Injuries over
the head and face were individually and collectively sufficient to cause death
in ordinary course of nature. Injuries present in vagina were suggestive of
sexual intercourse. Time since death was 3-4 days. Dr.Yogesh Tyagi
deposed that he had taken the samples of vaginal swab and blood of
deceased and handed over the sealed parcels to the Police along with sample
seals.
16. As noted above the investigation was handed over from SI Chand
Singh PW-27 to Inspector Satbir Singh PW-30 after the recovery of the dead
body. Inspector Satbir Singh deposed that on November 18, 2010 he was
posted as SHO PS Palam Village and at 1.45 PM duty officer informed
about recovery of the dead body of a female child in DDA park, Sector-6,
Dwarka the description of which was similar to the missing girl in case FIR
No. 230/2010. He went to the Police Station and made departure vide entry
No.17A and directed I.O. of case FIR No. 230/2010 SI Chand Singh to reach
the spot along with the complainant. When he reached the spot, PCR Van,
Crime Team, SHO Dwarka South, ASI Dharampal of PS Dwarka South and
other staff of PS Dwarka South were present along with senior officers.
After some time SI Chand Singh reached with the complainant Bhupender
who identified the dead body to be of his daughter. He also identified her
clothes, Chappal, black colour thread around her neck and the description
tallied with the particulars in the hue and cry notices. Photographs of the
dead body and scene of crime were taken and rough site plan was prepared.
All exhibits were seized along with the blood stained pant, blood stained
stone, blood stained earth and straws, chappal, one empty packet of Kurkure,
one plastic broken bangle and earth control vide memo Ex.PW-3/A which
was also signed by the complainant. He further deposed that since Bharat
was suspected in this matter they tried to trace him. On the night
intervening November 18/19th an information was received that Bharat
Kumar was seen at the bus stand of Manglapuri and thus he was arrested
vide memo Ex.PW-26/A. Bharat Kumar made a disclosure statement where
after Inspector Satbir Singh accompanied by HC Surender Singh PW-26 and
Ct.Om Prakash PW-22 went to Alwar with Bharat Kumar. In the village
Bharat Kumar took them to the house of his maternal uncle Mangeram and
from the house he took out one polythene containing one blue coloured
jeans, blue colour underwear and one shirt which was seized vide memo
Ex.PW-10/A. The exhibits were sent to FSL. This version of PW-30 is duly
corroborated by Ct.Om Prakash PW-22 and HC Surender Singh PW-26. As
per the FSL report Ex.PXY blood was detected on the pants of the deceased,
cemented stone, blood stained earth, frock and T-shirt of the deceased, scalp
hair of the deceased, jeans pant of Bharat Kumar, though the blood group of
the deceased was found to be 'B' group, however the jeans pant though
opined to be human blood but gave no reaction.
17. As noted above on the application of the prosecution under Section
311 Cr.P.C. the Court vide order dated November 16, 2012 directed the I.O.
to make arrangements for sending the samples/ exhibits pertaining to the
deceased and accused particularly sample No.7 and 11 to the FSL authority
which were the vaginal swab of the deceased and the semen sample of
Bharat Kumar. The investigating agency sent 11 exhibits which included
two fresh blood samples of Bharat Kumar which were taken after due
permission of the Court vide order dated November 30, 2012 along with 9
other samples.
18. The prosecution examined Dr.Dhruw Sharma PW-31 who conducted
the DNA finger printing and on comparison from vaginal swab of the
deceased which was Ex.7 in the earlier report of the FSL and the blood
gauze of the accused which was Ex.10 in the earlier report opined that male
DNA profiles were generated in the vaginal swab of the prosecutrix and the
blood stained gauze of Bharat Kumar and the STR analysis (DNA profiling
data) is sufficient to conclude that allelic data of blood stained gauze of
Bharat Kumar were found to be similar to the allelic data of vaginal swab of
the prosecutrix.
19. The dispute is not with regard to the Karuna being kidnapped, raped
and murdered but that the same was not done by Bharat Kumar and that he
was falsely implicated. Learned counsel for the appellant Bharat Kumar
assails the last seen evidence, recovery of blood stained clothes at his
instance from the house of his maternal uncle at village Jhawli, Alwar and
the DNA evidence.
20. Merely absence of Bharat from his house could not have aroused such
a strong suspicion unless it was coupled by the statement of Rosy that he
had been last seen with her, that immediately after recovery of the dead
body all efforts were made by the investigating agency to arrest Bharat
Kumar
21. As regards the last seen evidence of Rosy PW-1 it is contended that
her version is full of contradictions; though Rosy stated that her statement
was recorded on November 16, 2010, however Bhupender in his cross-
examination stated that he came to know on November 18, 2010 that his
daughter had been seen with Bharat Kumar; Bhupender further stated that he
had not met Rosy on November 16th or 17th; further Ct.Rakesh Kumar stated
that efforts were made to locate the girl but no clue was found and he did not
depose anything about the statement made by Bhupender or recorded by SI
Chand Singh; HC Surender Singh stated that he made enquiries from Rosy
on November 17, 2010 and SI Ranvir Singh did not state anything about last
seen evidence.
22. In relation to the last seen evidence it may be noted that Rosy
categorically stated that on the next day the Police came to her house,
enquired from her and recorded her statement when she informed that she
had seen Bharat taking Karuna towards the main road after 7.30/8.00 PM.
This witness clarifies in her cross-examination that when she saw Karuna
playing with her younger sister there was no one else in the gali at that time
except Bharat and those children. She further stated that police had made
general enquiries from her on November 16, 2010 when Karuna could not
be found anywhere and till that time though she did not have any suspicion
on the accused but only that he was missing from the gali. It is thus evident
from the testimony of this witness that though she did not see Bharat taking
away Karuna on November 15, 2010 but saw him present when Karuna and
her sister were playing when no one else was present in the gali. This
coupled with the fact that Bharat was missing from the house raised her
suspicion on Bharat. Version of Rosy is corroborated by SI Chand Singh
PW-27 who stated that he received the complaint Ex.PW31/A, PW-27/A on
which FIR was registered and flash and WT messages sent, took the
photographs and made efforts to trace the girl. He further stated that on
November 16, 2010 he searched the girl and recorded the statements. He
made enquiries from the neighbours of the complainant i.e. Rosy, Rukmani
and Chagan Lal during investigation of the case. He made enquiries from
Rosy on November 17, 2010 for the first time and on the same day he
recorded her statement who told her that she had seen Karuna in company of
Bharat Kumar. He further stated that he had suspicion on Bharat when he
was informed on November 18, 2010 at about 12 noon that he was missing
since the night of November 15, 2010. Further Insp.Satbir Singh stated that
after sending the dead body to mortuary for post-mortem he along with the
father of deceased and relatives made enquiries in the locality and came to
know that one Bharat was suspected in the matter and thus efforts were
made to trace Bharat. It may be noted that the dead body was taken to the
hospital at 6.00 PM and Bharat was arrested on the intervening night of
November 18/19, 2010 at about 12.20 AM. It is thus apparent that the
suspicion on Bharat was not formed immediately on receipt of the dead
body but was based on multiple factors which included the statement of
Rosy and the information that Bharat was absent from his house since the
night of November 15, 2010 etc. Merely because there is a difference in the
statement of Rosy and SI Chand Singh as to whether her statement was
recorded on November 16, 2010 or November 17, 2010, version of Rosy
cannot be belied.
23. Learned counsel for Bharat Kumar contends that with regard to
recovery of blood stained clothes of Bharat at his instance from the house of
maternal uncle, the arrest of Bharat Kumar itself is doubtful as he was
arrested hardly 200 meters away from his house, no public witness was
joined and within 10 minutes of the arrest personal search, disclosure etc.
statements were recorded and a taxi booked for leaving for outstation at
12.30 AM. Bharat Kumar was not medically examined immediately after
arrest but at 4.00 PM on November 19, 2010. No log book, taxi booking,
payment etc., have been proved. No outstation permission have been proved
nor any arrival and departure entry from PS or corresponding entry at PS
Alwar. Further, no local person was associated at village Jhawli. Moreover,
the jeans pant allegedly seized at the instance of Bharat Kumar gave no
reaction and hence was not connected with the offence.
24. As noticed above Inspector Satbir Singh has deposed about the arrest
and recoveries made at Alwar. The version of Insp.Satbir Singh qua arrest is
corroborated by HC Surender Singh who was a signatory to the arrest memo
Ex.PW-26/A. HC Surender Singh PW-26 stated that in view of the fact that
Bharat Kumar was missing from his house since day of incident and he was
lastly seen with the girl when she was alive they tried to search Bharat
Kumar. A secret information was received that Bharat Kumar had come at
Manglapuri bus stand and hence he was apprehended from behind a
stationed bus at the instance of a secret informer.
25. The raiding team to Alwar along with Insp. Satbir Singh was of HC
Surender and Ct. Om Prakash i.e. PW-26 and PW-22. They had all gone in
the private vehicle of Babloo PW-10. Babloo deposed that he was a taxi
driver on taxi No. DL-1YC-1021. In November 2010 he was called to the
Police station and his taxi was hired for going to Alwar. He took permission
to go out of station from his employer. He along with IO, two Constables
and Bharat went to Alwar in his taxi. Bharat Kumar took them to a house in
a gali and brought out a polythene bag having one blue colour blood stained
jeans pant, one underwear and one striped T-shirt. He also identified his
signatures at point 'A' on Ex.PW-10/A the seizure memo of the clothes. He
also deposed that after reaching to Delhi Bharat Kumar took them to a shop
in the area of Palam and then to the park at Sector-6, Dwarka. Nothing
material has been elicited in the cross-examination of this witness. Further
version of Insp. Satbir Singh is also corroborated by Ct. Om Prakash and HC
Surender Singh who have deposed in sync with him. Thus, we have no
reason to doubt the evidence of the witnesses regarding recovery of the jeans
pant, stripped shirts and underwear of Bharat from the house of his maternal
uncle at Alwar at the instance of Bharat Kumar. No doubt, as per the FSL
report the blood grouping could not be given because of no reaction,
however the jeans pant of Bharat Kumar was stained with blood of human
origin as per the FSL report Ex.PXY.
26. Before further considering the evidence of Dr. Dhruv Sharma and the
other witnesses i.e. Ct.Sushil Kumar PW-32 who took 11 sealed pullandas
from MHCM on December 7, 2012 and deposited the same in FSL Rohini
vide RC No. 142/22/12 and obtained an acknowledgement vide Ex.PW-32/B
from the FSL; HC Nihal Singh PW-33 who took Bharat Kumar from the jail
on December 5, 2012 to the DDU hospital and obtained the blood samples;
PW-34 HC Ramphool MHCM of Palam village who received the various
exhibits from Inspector Sunder Singh PW-35 the then SHO PS Palam
village who produced the two sealed pullandas containing samples of
prosecutrix before the learned Magistrate got them re-sealed and seized vide
Ex.PW-34/A and took permission from the learned Sessions Judge for
obtaining fresh blood samples and on his directions were deposited 11
sealed pullandas at FSL Rohini and Dr.Vinal Sharma PW-36 who deposed
regarding the MLC of Bharat Kumar Ex.PW-35/A when his blood samples
were taken; it would be appropriate at this stage to note the contention of the
learned counsel for the appellant so that they can be dealt along with their
testimonies as noted above.
27. The main ground on which learned counsel for Bharat Kumar has
assailed the prosecution case is the non-proving of the link evidence
resulting in the DNA report which thus vitiates the entire trial. According to
him there is no material that the exhibits which were first sent to the FSL
were kept in proper custody and no tampering of the same was done after
fresh blood samples of Bharat Kumar were taken and manipulated resulting
in the report of DNA. It is alleged that DNA report has been prepared at the
instance of the investigating officer and manipulated to create false evidence
against Bharat Kumar. Even otherwise the custody of the samples itself is
broken and tainted and thus DNA result has no value in the eyes of law.
28. A perusal of the evidence on record shows that vide Ex.PW-3/B
following articles were seized from the spot which were given parcel serial
numbers 1 to 7 and sealed with the seal of 'SSK' by Insp. Satbir Singh in the
presence of SI Chand Singh and Bhupender who witnessed the recoveries:
"1. One jeans pant, black coloured (sic), approximately 2
feet whereon stains of blood and fluid were found, in front there
is the button of tongue and metal and a red coloured tailor
label is there whereon TV web-jeans is written below on the
right side. The same was placed into a plastic poly bag and a
parcel was prepared with the help of white cloth and SL no.1
was given.
2. One plastic, used yellow coloured pair of chappal. The
same was placed into a plastic polythene and a parcel was
prepared with the help of white clothes and SL No.2 was given.
3. One blood smeared stone whereon stains of blood and
fluid are found and many hairs are stuck on the same stone.
The same was placed in a plastic polythene and a parcel was
prepared with the help of white clothes and SL No.3 was given.
4. Blood smeared soil, grass and straw was picked up from
below the dead body from the place of occurrence and the same
was placed into a plastic poly bag and was converted into a
parcel with the help of white clothes and SL No.4 was given.
5. An empty kurkure (printed) packet was picked up from
the place of occurrence and the same was placed into a plastic
polythene and converted into a parcel with the help of white
clothes and SL No.5 was given.
6. Earth Control was taken from the place of occurrence
and the same was placed into a polythene bag and the same
was converted into a parcel with the help of white clothes and
SL No.6 was given.
7. One broken light red-yellow coloured plastic bangle was
placed into a plastic polythene and converted into a parcel with
the help of white clothes and the same was given SL No.7.
All the aforesaid parcels bearing SL No.1 to 7 were
sealed with the seal of S.S.K. and were duly taken into the
police possession as a piece of evidence and the seal was
handed over to S.I. Chand Singh after its use."
29. Further, after the post-mortem of Karuna, Dr.Yogesh Tyagi PW-18
handed over her (1) clothes (2) vaginal swabs (for microscopic examination
to detect sperm, micro chemical test for semen, blood grouping and cross
matching with accused) (3) blood on gauze; which were also seized and
deposited in the malkhana. Pursuant to the arrest of Bharat Kumar his
clothes i.e. jeans pant, underwear and T-shirt were seized at his instance
from the house of his maternal uncle at Alwar. After medical examination
of Bharat Kumar 3 sealed parcels along with sample seals were handed over
to Insp. Satbir Singh containing the blood sample, semen sample and pubic
hair sample of Bharat Kumar all sealed with the seal of CMO DDU Hospital
along with sample seal which were seized vide memo Ex.PW-26/E. PW-9
HC Mahender Singh the MHCM appeared in the witness box and deposed
that on November 19, 2010 he was posted as Moharar Malkhana at PS
Palam village and on that date Insp.Satbir Singh deposited 16 sealed parcels
along with 7 sample seals and articles of personal search of accused. He
deposited the same in Malkhana and exhibited the entry at serial number 876
in Register No.19 vide Ex.PW-9/A. The original register was seen and
returned by the Court. He further deposed that on February 2, 2011 on the
directions of the investigating officer he had sent 12 sealed parcels along
with their respective sample seals to FSL Rohini through Ct.Anil Rana vide
RC No. 57/21, copy of which he exhibited as Ex.PW-9/B. He also exhibited
the copy of the acknowledgement issued by the FSL Rohini vide Ex.PW-
9/C. He further deposed that so long as the exhibits remained in his custody
the same were intact and nobody tampered with the same. This witness has
not been cross-examined and thus his testimony has gone unchallenged.
30. The FSL report was prepared on July 20, 2011 and received by
Ct.Anil who appeared as PW-23. PW-23 on February 2, 2011 deposited the
sealed exhibits along with sample seal to FSL Rohini vide RC No.57/21 and
handed over the acknowledgement to MHCM and deposed that as long as
the exhibits remained in his custody they were intact and not tampered with.
The FSL report PXY notes receipt of 12 sample parcels with seals intact.
The description of the articles and the result of analysis are reproduced as
under:
"Description of Articles Contained in parcel
Parcel '1' : One sealed cloth parcel sealed with the seal
of "SSK" containing exhibit '1'.
Exhibit '1' : One dirty baby pants described to be of
deceased from scene of crime on which no
hair could be found.
Parcel '2' : One sealed cloth parcel sealed with the seal
of "SSK" containing exhibit '2'.
Exhibit '2' : One cemented stone piece having darker
stains and few strands of hair sticking.
Parcel '3' : One sealed cloth parcel sealed with the seal
of "SSK" containing exhibit '3', kept in a
plastic dibba.
Exhibit '3' : Earth with vegetative debries described as
'Blood stained earth'.
Parcel '4' : One sealed polythene bag parcel sealed with
the seal of "DFMT DDU Hospital"
containing exhibits '4a' and '4b' described
to be of deceased.
Exhibit '4a' : One baby frock having darker stains and
few strands of hair.
Exhibit '4b' : One baby T-shirt having few strands of hair.
Parcel '5' : One sealed polythene bag parcel sealed with
the seal of "DFMT DDU Hospital"
containing exhibit '5', kept in a plastic
container.
Exhibit '5' : Bunch of black hair described as 'Scalp hair
of deceased'.
Parcel '6' : One sealed polythene bag parcel sealed with
the seal of "DFMT DDU Hospital"
containing exhibit '6', kept in a plastic
container.
Exhibit '6' : One strand of black hair described to be
'from pubic area of deceased'
Parcel '7' : One sealed cloth parcel sealed with the seal
of "DFMT DDU Hospital" containing
exhibit '7', kept in a tube.
Exhibit '7' : Cotton wool swab on stick described as
'Vaginal swab kept in two tubes'.
Parcel '8' : One sealed paper envelope sealed with the
seal of "DFMT DDU Hospital" containing
exhibit '8'.
Exhibit '8' : Brown gauze cloth piece described as
'Blood in gauze of deceased'.
Parcel '9' : One sealed cloth parcel sealed with the seal
of "SSK" containing exhibits '9a', '9b' and
'9c' described as clothes of accused Bharat
Kumar.
Exhibit '9a' : One jeans pants.
Exhibit '9b' : One underwear.
Exhibit '9c' : One T-shirt.
Parcel '10' : One sealed cloth parcel sealed with the seal
of"CMO DDU Hospital" containing exhibit
'10'.
Exhibit '10' : Gauze cloth piece having brown stains
described as 'Blood sample of accused'.
Parcel '11' : One sealed cloth parcel sealed with the seal
of "CMO DDU Hospital" containing exhibit
'11', kept in a plastic container.
Exhibit '11' : Gauze cloth piece described as 'Semen
sample of accused'.
Parcel '12' : One sealed cloth parcel sealed with the seal
of "CMO DDU Hospital" containing exhibit
'12', kept in a plastic container.
Exhibit '12' : Bunch of black hair described as 'Pubic
hair of accused'.
RESULT OF ANALYSIS.
1. Blood was detected on exhibits
'1','2','3','4a','4b','5','8','9a' & '10'.
2. Blood could not be detected on exhibits '9b' and '9c'.
3. Human semen was detected on exhibits '7' and '11'.
4. Semen could not be detected on exhibits
'1','4a','4b','6','9a' and '9c'.
5. On the basis of macroscopic and microscopic
examination hairs in exhibits '2','4a','4b','5','6' and '12' were
found to be human in origin. Hair in exhibits '2', '4a', '4b'
and '5' were similar in most of their characteristics but found
different to hair in exhibit '12'. Hair in exhibit '6' could not be
matched due to less number of hair (only one) in it.
6. Report of serological analysis in original is attached
herewith.
NOTE: Remnants of the exhibits have been sealed with the
seal of 'DS FSL DELHI'.
31. As per the report of the serologist the findings are as under:
Exhibits Species of origin ABO Grouping/
Remarks
Blood stains:-
'1' Baby pants Human No reaction
'2' Stone with hair Human No reaction
'3' Blood stained earth Human No reaction
'4a' Baby frock Human 'B' Group
'4b' Baby T shirt Human 'B' Group
'5' Scalp hair Human No reaction
'8' Blood stained gauze Human 'B' Group
'9a' Jeans pants Human No reaction
'10' Gauze cloth piece Human 'B' Group
Semen stains:-
'7' Vaginal swab ------ No reaction
'11' Gauze cloth piece ------ 'B' Group
32. As noted above, at the fag end of the trial, the prosecution realized
that DNA analysis was not done and thus an application under Section 311
Cr.P.C. was filed. Vide order dated November 16, 2012 the learned Trial
Court allowed the application under Section 311 Cr.P.C. and the Court
directed the investigating officer to make arrangements for sending the
samples/ exhibits pertaining to the deceased/ accused particularly sample
No. 7 & 11 to the FSL authority for further profiling. An application was
moved to seal the exhibits so that the same could be sent to reseal the
exhibits by breaking the seal with the sample seal so that they could be sent
to FSL Rohini. Further on an application by the investigating officer that
FSL authorities have advised that fresh blood samples of the accused be also
taken for DNA analysis, hence permission was taken to take the fresh blood
samples for comparison which was also done. Thus Bharat Kumar was
produced in DDU hospital wherein Dr.Vinal prepared the MLC and
collected blood samples of Bharat Kumar.
33. Dr.Vinal Sharma PW-36 appeared in the witness box and deposed
regarding the same. Thus out of the 12 samples sent earlier 9 samples plus 2
fresh blood samples of Bharat Kumar taken on December 5, 2012 and sealed
with the seal of DDU were sent to FSL for DNA analysis. Ct.Sushil Kumar
PW-32 appeared in the witness box and deposed regarding the taking of the
11 sealed pullandas with 3 sample seal from MHCM and depositing the
same in FSL Rohini and exhibited vide RC No. 142/21/12 copy of which
was exhibited as Ex.PW-32/A. He also took the acknowledgement from the
FSL which was handed over to MHCM photocopy of which was exhibited
as Ex.PW-32/B. HC Ramphool who was posted as MHCM in PS Palam
village deposed about handing over the pullandas on November 26, 2012 to
be produced before the learned Magistrate to be resealed with the seal of the
Court with sample seal and that on December 7, 2012 he handed over 11
sealed pullandas with 3 sample seals to Ct.Sushil Kumar to be deposited in
the FSL Rohini and also exhibited the copy of the RC and the
acknowledgement. He also deposed that on April 26, 2013 Ct.Balwan
handed over the FSL result along with 11 sealed pullandas to him.
34. One of the grievance of the learned counsel for Bharat Kumar is that
though in the first instance 12 samples were sent, however in the second
time only 11 samples were sent to the FSL out of which two were of fresh
blood samples. So it is not known which 3 samples were not sent.
35. Though none of the witnesses were cross-examined on this aspect and
thus no challenge was made during trial on this count, however the same is
amply clear by the second FSL report Ex.PW-31/A which also notes the
earlier exhibits. The same is as under:
"DESCRIPTION OF PARCELS & CONDITION OF SEALS
Seals intact as per F.A.'s Letter
Sealed cloth parcels : 02
Total : 11 (Eleven)
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
Parcel '1' : One sealed envelope sealed with the seal of
"PS" containing exhibit '1' described in
FSL 2011/B-524.
Parcel '2' : One sealed envelope sealed with the seal of
"DS FSL DELHI" containing exhibit '4'
described in FSL 2011/B-524.
Parcel '3' : One sealed envelope sealed with the seal of
"DS FSL DELHI" containing exhibit '6'
described in FSL 2011/B-524
Parcel '4' : One sealed envelope sealed with the seal of
"DS FSL DELHI" containing exhibit '7'
described in FSL 2011/B-524 now marked
as exhibit '4'.
Exhibit '4' : Vaginal swab (02) on sticks kept in two
tubes.
Parcel '5' : One sealed envelope sealed with the seal of
"DS FSL DELHI" containing exhibit '8'
described in FSL 2011/B-524.
Parcel '6' : One sealed envelope sealed with the seal of
"PS" containing exhibits '9a', '9b' & '9c'
described in FSL 2011/B-524.
Parcel '7' : One sealed envelope sealed with the seal of
"DS FSL DELHI" containing exhibit '10'
described in FSL 2011/B-524 now marked
as exhibit '7'.
Exhibit '7' : Brownish gauze cloth piece described as
blood in gauze of accused.
Parcel '8' : One sealed envelope sealed with the seal of
"DS FSL DELHI" said to contain exhibit
'11' described in FSL 2011/B-524.
Parcel '9' : One sealed envelope sealed with the seal of
"DS FSL DELHI" said to contain exhibit
'12' described in FSL 2011/B-524.
Parcel '10' : One sealed cloth parcel sealed with the seal
of "CMO DDU Hospital" containing exhibit
'10'.
Exhibit '10' : Dark brown liquid in a tube described as
blood sample of accused.
Parcel '11' : One sealed cloth parcel sealed with the seal
of "CMO DDU Hospital" containing exhibit
'11'.
Exhibit '11' : Gauze cloth piece described as blood in
gauze of accused.
DNA EXAMINATION
Exhibit '4' (vaginal swab of prosecutrix), and exhibit '7'
(Blood stained gauze of accused) were subjected to DNA
isolation. DNA was isolated from exhibit '4' and '7'. Male
DNA profiles were generated in exhibit '4' (vaginal swab of
prosecutrix) & exhibit '7' (Blood stained gauze of accused).
DNA was amplified using Identifier plus STR amplification kit
and Gene Mapper IDx software was used for analysis.
RESULT OF ANALYSIS
Allelic data of exhibit '7' were found to be accounted in allelic
data of exhibit '4'.
CONCLUSION
STR analysis (DNA profiling) data is sufficient to conclude that
the allelic data of exhibit '7' (Blood stained gauze of accused)
were found to be similar to allelic data of exhibit '4' (vaginal
swab of prosecutrix).
NOTE: Remnants of the exhibits have been scaled with the seal
of "DS FSL DELHI"."
36. It is thus evident that from the earlier exhibits cemented stone earlier
Ex.2, blood stained earth earlier Ex.3 and scalp hair of the deceased earlier
Ex.5 were not sent and rightly so as the same were not relevant for the DNA
examination.
37. It was next contended by the learned counsel for the appellant that
though fresh blood samples were taken, however the analysis was done
through the old samples which was not possible as they were not maintained
at a temperature of 10 degree celcius. Dr.Dhruv Sharma PW-31 had
appeared in the witness box and deposed that they had received 11 parcels
on December 7, 2012 and he isolated the DNA from the vaginal swab of the
prosecutrix and the blood sample of accused and found that allelic data in
the DNA of blood sample of accused accounted for the allelic data in the
DNA isolated from vaginal swab of the prosecutrix and thus he opined that
the allelic data in both of these samples is similar. This witness was recalled
for cross-examination and he stated that dried blood stained gauze, semen
stained gauze does not require any preservation at all. He further deposed
that these can give good result even if kept at room temperature and it is not
essential that these samples should be kept at 20 degree centigrade
temperature and these kind of exhibits give good result even if kept at 40
degree centigrade temperature for a long time and nor was it necessary that
these exhibits should be kept in air tight container. According to him DNA
can be isolated from such dried exhibits after a period of several years. He
stated that he isolated the DNA from Ex.4 (vaginal swab) and Ex.7 (blood
gauze of the accused) which he had earlier also examined in the year 2011.
He clarified that he did not isolate the DNA from Ex.10 and 11. Thus, the
cross-examination of this witness clarifies that there was no tampering and
the fresh blood samples even though taken were neither used for
examination nor for tampering.
38. The request of the investigating officer for fresh blood samples have
also been assailed by the learned counsel for the appellant that though the
application was on the advice of FSL expert, however this was not the
requirement of the FSL expert. Again Dr.Dhruw Sharma has been cross-
examined and he did not deny that he had asked for fresh blood samples. He
only stated that he did not remember whether any Police official had
approached him for comparison of DNA profile in this case and that he had
opined that DNA could not be isolated from the previous exhibits.
39. The custody of samples has been assailed on the ground that in
Register No.19 Exhibit PW-9/A, though deposit entries have been made,
their corresponding entries for the samples to be sent to FSL and receipt of
the FSL report have not been made. Though we may note that PW-9 HC
Mahender Singh MHCM who brought the Register and deposed about
sending of the samples to FSL vide the Road Certificate Ex.PW-9/B and the
acknowledgement of case acceptance vide Ex.PW-9/C has not been cross-
examined, however to satisfy ourselves we called for the entire record and it
was explained by the prosecution that on the start of every year the pending
entries in which action is to be taken are carried forward in red ink in the
fresh register and in the said carry forward register the entries with regard to
sending of the samples to FSL and the receipt of the report are mentioned.
The original carry forward register was produced for our perusal.
40. As noted above the prosecution has examined sufficient witnesses i.e.
HC Mahender Singh, Ct.Anil and HC Ramphool in this regard and they
have exhibited the relevant copies of the relevant certificates, originals of
which had been brought in the Court. Hence we find no merit in this
contention of learned counsel for the appellant.
41. The defence of Bharat Kumar in his statement under Section 313
Cr.P.C. is of false implication and he examined his father Chagan Lal DW-1
who deposed that on November 15, 2010 he returned home at about 6.00
PM. His son Bharat was present at home at that time. He was having fever.
Hence he brought two Crocin tablets from a nearby medical shop and
administered the same to him. At about 6.45/7.00 PM they heard a
commotion and saw many people gathered in the gali of their house. He
also went there and came to know that minor girl Karuna daughter of
Bhupender had gone missing. He along with two neighbours Sohan Lal and
Roshan Lal set out to search the missing girl. They searched her in the
entire colony till late night but they could not find her and thus they returned
home. On November 18, 2010 Police officials came to their home and took
him and his son to the Police Station. They were detained in the Police
station. He was released after 6 days but his son was not released and is still
in custody. As regards the version of Chagan Lal regarding searching of
Karuna even PW-1 has deposed that father of Bharat Kumar tried to trace
the girl. However, most importantly Chagan Lal does not depose that
Bharat Kumar was at home from the night of November 15, 2010 to
November 18, 2010. His testimony is absolutely silent on this aspect. As
regards Chagan Lal also being detained in the Police Station along with his
son for 6 days, it may be noted that in this regard Chagan Lal has lodged no
complaint. It may be noted that SI Chand Singh is not a witness to the arrest
memo and arrest was made by Insp. Satbir Singh.
42. Considering the evidence on record we uphold the conviction of
Bharat Kumar for offences punishable under Section 363/376/302 IPC.
43. The appellant Bharat Kumar has been awarded sentence of death for
the offence of murder, subject to confirmation by this Court. In the decision
reported as (2014) 4 SCC 292 Mahesh Dhanaji Shinde v. State of
Maharashtra the Supreme Court noted the decision in (2013) 5 SCC 546
Shankar Kisanrao Khade Vs. State of Maharashtra wherein it was held that
to award the death sentence, "crime test" has to be fully satisfied, that is,
100% and "criminal test"0%, that is, no mitigating circumstances favouring
the accused. If there is any circumstance favouring the accused, like lack of
intention to commit the crime, possibility of reformation, young age of the
accused, not a menace to the society, no previous track record, etc. the
"criminal test" may favour the accused to avoid the capital punishment.
44. In Khade case (supra) the Supreme Court analyzed the species of
cases where the victim was raped and murdered. The analysis of the various
decisions would demonstrate that the deadlock between a life sentence and a
death sentence was resolved primarily by finding out whether the offence of
rape and murder was a momentary lapse or was it premeditated and further
whether the victim died as a consequence of rape and not because of any
overt act by the accused.
45. In the decision of this Court State Vs. Ravi Kumar & Ors. Death
Reference 1/2014 decided on August 26, 2014 we have already noted that
the sexual offenders can be classified as Criminal Sexual Psychopaths who
are least dangerous, Sexually dangerous persons and Dangerous and violent
sexual predators and offenders who lack empathy and remorse. The first
category does not inflict any physical pain on the victim, the second
category while perpetrating the crime cause grotesque suffering in the victim
and the last category causes not only grotesque suffering in the victim but
even defiles the victim after the crime. Bharat Kumar falls in the second
category who not only perpetrated crime but caused grotesque suffering on
the victim by raping a minor girl of tender age of 6 years and thereafter
committing her murder by smashing her head with a stone. Thus, Bharat
Kumar is Sexually dangerous person and not a Dangerous sexual predator
and offender. Hence, the solution to the present case is not by removing
Bharat Kumar from the earth but guarding the society against him so that he
does not act dangerously to other innocent lives.
46. While awarding the punishment besides considering the aggravating
and the mitigating factors it has also to be considered whether the question
of reformation of the offender is foreclosed. In the decision reported as
(2008) 13 SCC 767 Swamy Shraddananda (2) Vs. State of Karnataka a three
judge bench of the Supreme Court discussed the power of the Court to direct
that an actual period of incarceration be undergone by the convict without
remissions/commutations by the executive so that the convict serves out
imprisonment for the remainder of the natural term of his life. This
alternative was held to be a substitute for the death sentence and viewed
differently and segregated from the ordinary life imprisonment given as the
sentence of first choice. It was further held that formalization of a special
category of sentence though for an extremely few number of cases shall
have the great advantage of having the death penalty on the Statute book but
to actually use it as little as possible really in the rarest of rare cases. This
was held to be only a reassertion of the Constitution Bench decision in AIR
1982 SC 1325 Bachan Singh Vs. State of Punjab.
47. In our opinion, the ends of justice would be met by awarding a
sentence of imprisonment for life to Bharat Kumar with the direction that no
remission would be granted to him before completion of 25 years of actual
imprisonment with a fine of `1 lakh and in default of payment of fine to
undergo simple imprisonment of one year for the offence punishable under
Section 302 IPC. Ordered accordingly. The fine, if recovered, will be paid
to the parents of Karuna as compensation. The sentences as awarded by the
learned Trial Court for offences punishable under Sections 363 IPC and 376
IPC are maintained.
48. The death sentence is answered in the negative. The appeal is
disposed of accordingly.
49. T.C.R. be returned.
50. Two copies of the judgment be sent to the Superintendent Central Jail
Tihar one for his record and the other to be handed over to the appellant.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
SEPTEMBER 18, 2014
'ga'
