Delhi High Court

Deepak Kumar @ Bhupender Kumar @ ... vs State (Govt. Of Nct) Of Delhi on 8 September, 2015

$~Part-A (R-46)
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                CRIMINAL APPEAL No.1200/2012
                                        Date of decision: 8th September, 2015
        DEEPAK KUMAR @ BHUPENDER KUMAR @ DEEPU YADAV
                                     ..... Appellant
                    Through Mr. Ajay Verma & Ms. Neha Singh,
                    Advocates.

                          versus

        STATE (GOVT. OF NCT) OF DELHI               ..... Respondent

Through Ms. Aashaa Tiwari, APP along with Inspector Om Prakash, P.S. Khyala.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.K.GAUBA

SANJIV KHANNA, J. (ORAL):

Deepak Kumar @ Bhupender Kumar by the judgment under challenge

dated 19th March, 2010 has been convicted under Sections 302, 363, 376 and

201 of the Indian Penal Code, 1860 (IPC, for short) for having committed

offence of kidnapping, rape and murder of an eight year old female child,

destroying evidence and giving false information to escape punishment.

2. By order on sentence dated 8th April, 2010, the appellant has been

sentenced to imprisonment for life, fine of Rs.1 lac and in default, to undergo

rigorous imprisonment for a period of one year for the offence under Section

302 IPC, imprisonment for life, fine of Rs.1 lac and in default, to undergo

rigorous imprisonment for one year for the offence under Section 376(f) IPC,

Rigorous imprisonment for seven years, fine of Rs.20,000/- and in default, to

undergo Rigorous imprisonment for three months for the offence under

Section 363 IPC and rigorous imprisonment for three years, fine of

Rs.20,000/- and in default, to undergo rigorous imprisonment for a period of

three months for the offence under Section 201 IPC. Against each awarded

sentence, it is recorded shall run concurrently even in the event of the fine not

being realised. Entire fine realised shall be awarded as compensation to the

parents of the deceased/victim under Section 357 of the Code of Criminal

Procedure, 1973 (Cr.P.C.). The order on sentence states that life

imprisonment would mean imprisonment for the rest of the life, i.e., whole of

the remaining period of the appellant.

3. We have heard learned amicus curiae and the counsel for the State and

are inclined to affirm the findings recorded by the trial court convicting the

appellant for the offences under Sections 363, 376, 302 and 201 IPC for the

reasons set out below.

4. The victim has been described as „N‟ and it is not disputed that she was

about eight years of age as mentioned in the post-mortem report marked

Exhibit PW-10/A. Rajeshwari Devi (PW-12), mother of „N‟, has testified that

her daughter was about eight years old at the time of incident. The appellant

and PW12 used to work in the same factory. The appellant would visit

PW12‟s house to help her daughter „N‟ in studies by giving her free tuition.

On 23rd March, 2009, the appellant came to their house and had taken her

daughter „N‟ with him on the pretext that he had brought a rabbit and wanted

to gift the rabbit to her as he had to return to his native place on account of

death of his brother. PW-12, after initial hesitation, had allowed her daughter

„N‟ to go with the appellant at about 6-6.30 P.M. When her daughter did not

return till about 7 P.M., PW-12‟s husband had gone out in search of his

daughter. Later on, PW-12 learnt that her daughter had died. In her cross-

examination, PW-12 has stated that her husband had returned home after

night duty (9 P.M. to 9 A.M.) and was sleeping at the time when her daughter

„N‟ had gone out with the appellant. PW-12 has accepted that she had not

gone with her husband but her brother-in-law Kameshwar had gone with her

husband looking for her daughter.

5. Almost identical deposition is made by Rajeshwar Ram (PW-13),

husband of PW-12 and father of „N‟. PW-13, however, claimed that PW-12

had woken him up to inform that the appellant wanted to take their daughter

to see the rabbit and bring her home. PW-13 identified the appellant. PW13

affirmed having gone looking out for and in search of the appellant with his

brother after his daughter „N‟ did not return home. At about 11 P.M., they

had succeeded in meeting the appellant at the Khyala Bus Stand and had

inquired about his daughter „N‟. Appellant had then disseminated ignorance

claiming that he had dropped „N‟ near her house after handing over the rabbit

to her. Agitated, PW-13 had confronted the appellant asserting that his

daughter had not reached home. There was an exchange of caustic words and

quarrel ensued. Public gathered and at that time PW-13‟s brother Kameshwar

made a call on number 100. Police reached the said location and had

recorded PW-13‟s statement (Exhibit PW-5/B) resulting in registration of the

FIR No. 59/2009. Thereafter, PW-13 along with the appellant-Deepak Kumar

and the police officers had proceeded to the police station where the appellant

was interrogated.

6. Rajeshwar Ram (PW-13) has deposed that on sustained interrogation,

the appellant broke down and took the police team to a jungle near Chokhandi

behind Park Hospital. Over there, dead body of his daughter „N‟ was

recovered on the pointing out of the appellant. He identified the site plan

Exhibit PW-13/A which bears the thumb impression at point „A‟, seizure

memo of underwear of „N‟, her slippers, polythene of mustard oil, brick etc.,

which were seized vide seizure memo Exhibit PW-13/B. PW-13 proved the

disclosure statement made by the appellant marked Exhibit PW-13/D on

which PW-13 had put his thumb impressions at points „A‟ and „B‟. Nine

photographs taken at the spot were identified by PW-13 and marked Exhibit

PW-2/1 to 9. The said photographs were taken by Constable Raj Kumar

(PW-2), who had also proved the positives as Exhibit PW-2/1 to 9 and the

negatives as PW-2/10 to 18.

7. SI Ram Singh (PW-5) has deposed as being on emergency duty in the

Police Station Khyala on 23rd March, 2009 from 8 P.M. to 8 A.M. DD entry

No. 76B (Exhibit PW-5/A) regarding quarrel in front of Park Hospital was

marked to SI Ram Singh (PW-5). On reaching the Khyala Bus Stand, PW-5

had seen a crowd and had met the appellant and Rajeshwar Ram (PW-13).

PW-5 had proceeded to record the statement of Rajeshwar Ram (PW-13)

marked Exhibit PW-5/B, made endorsement marked Exhibit PW-5/C and the

FIR in question was registered. In his cross-examination, PW-5 has averred

that the appellant was wearing a pant and T-shirt and brother of Rajeshwar

Ram (PW-13) was also present. Subsequently, other police officers had come

to the spot. Some public persons were present but they did not join the

investigation and had left the spot.

8. Constable Mahesh Kumar (PW-8) has testified that he was posted in

Police Station Khyala in the intervening night of 23rd and 24th March, 2009

and being on night patrol duty, he had reached the spot near Park Hospital.

Over there, he was handed over the tehrir and had proceeded to the police

station to register the FIR. Rajeshwar Ram (PW-13) and an uncle of the

victim and the appellant were present there and they had subsequently come

to the police station. At this stage, we may record that the FIR No. 59/2009

was recorded at about 1.05 A.M. on 24th March, 2009 in the Police Station

Khyala.

9. ASI Azad Singh (PW-9) was in-charge of the Mobile Crime Team,

West District and had along with Constable Raj Kumar and HC Udham

Singh, visited the jungle behind the Park Hospital from where the dead body

was recovered. He had prepared an inspection report and handed over the

same to the IO. The crime scene report Exhibit PW-9/A affirms recovery of

the dead body of the girl „N‟ and the seizure memo of material/evidence

found at the said spot.

10. On the question of the disclosure statement and recovery being

admissible under Section 27 of the Evidence Act, we also have the testimony

of Constable Sukhbir (PW-15). The said witness has deposed about his

presence at the Khyala Bus Stand where the appellant was apprehended. PW-

15 also deposed that Rajeshwar Ram (PW-13) and his brother Kameshwar

were also present. All of them, including the appellant, came to the police

station where the appellant was subjected to interrogation and disclosure

statement (Exhibit PW-13/D) was recorded and signed by PW-15 at point „C‟.

Thereafter, the appellant had taken the police team and PW-13 to Chokhandi

behind Park Hospital where the dead body of „N‟ was recovered. The dead

body was identified by Rajeshwar Ram (PW-13) and Kameshwar. Crime

team was called to the spot and photographs were taken. The appellant had

identified the half brick which was used to give blows and injury to the

victim. The half brick (Exhibit P-1) was seized with the seal of AKC and

kept in a plastic bag. Underwear and slippers of the victim were seized and

sealed with the seal of AKC. One big blood-stained stone was found, sealed

and seized. Blood-stained earth and earth control samples were lifted from

the spot vide seizure memo Exhibit PW-13/B. PW-15 had identified the said

case properties in the court. In his cross-examination, PW-15 has stated that

they had reached at Chokhandi jungle at 6 A.M. and earlier, they had reached

the bus stand at 2 A.M. We agree that there may be some variation and

discrepancy with regard to the time but this is natural and normal and does not

in any way negate the core and fundamental factual assertion and facts proved

against the appellant.

11. Inspector Anil Kumar Chauhan‟s (PW-16) deposition is almost

identical on the factum of his proceeding to the bus stand near Khyala after

the FIR was registered and meeting Rajeshwar Ram (PW-13) and his brother

Kameshwar and the appellant. SI Ram Singh (PW-5) had handed over

custody of the appellant to Inspector Anil Kumar Chauhan (PW-15). The

appellant was brought to the police station with Rajeshwar Ram (PW-13) and

others. The appellant was arrested vide memo Exhibit PW-13/F which

records the time of arrest as 5.15 A.M. on 24th March, 2009. The appellant

was thoroughly interrogated. PW-16 had recorded the disclosure statement

of the appellant marked Exhibit PW-13/D and thereafter, at the behest and

instance of the appellant, dead body of the victim „N‟ was recovered from

Chokhandi jungle near Sant Nagar Extension. Rajeshwar Ram (PW-13) and

Kameshwar had identified the said dead body as that of „N‟. Crime team was

also called to the spot for investigation which took photographs of the spot.

He identified the photographs marked Exhibit PW-2/1 to 9, articles and the

evidence collected from the spot in the form of blood-stained half brick,

mustard oil, underwear of the victim, one pair of chappal of the victim, one

big size blood-stained stone, earth control, etc. Inquest papers were presented

to the autopsy surgeon for post-mortem. Dr. B.N. Mishra (PW-10), the

autopsy doctor, had handed over to PW-16, four sealed parcels having

clothes of the victim, vaginal swab, ligature material and blood in a gauze

piece, which were seized vide seizure memo Exhibit PW-15/B. The appellant

also was taken for medical examination. The doctor after examination had

handed over a sealed parcel containing the pant, shirt, underwear, vest, blood

samples, semen sample of the appellant along with sample seal, which were

seized vide seizure memo Exhibit PW-15/A. The said samples were shown to

PW-16 and identified by him in the court. In his cross-examination, PW-16

has accepted that he had reached the bus stand at about 2 P.M. and had made

inquiries. They left for the police station after 20-30 minutes. The appellant

and Rajeshwar Ram (PW-13) had remained at the police station between 3

A.M. to 5.15 P.M. and thereafter, they had left for the Chokhandi jungle

where the dead body of „N‟ was found.

12. The post-mortem on the dead body of the deceased, as noticed above,

was conducted by Dr. B.N. Mishra (PW-10) and the post-mortem report

Exhibit PW-10/A records that the eyes and mouth of the deceased were partly

open and ENT bleeding was present. The face and the scalp hair were stained

with blood and dirt. One lacerated wound 1.2x1 cm deep bone was present on

the left side of the forehead, another lacerated wound 3 cm x 2 cm deep bone

was present at the lateral angle of the left eye with crushed margins. There

were wounds on the upper and lower lips also with multiple indentation of

teeth with reddish bruises. Ligature mark was present around the neck at the

level of thyroid cartilage with horizontal placement measuring 24 cm in

length and 0.2 cm in width. Other bruises with multiple haemorrhagic spot on

the soft tissue were noticed. Left ear pinna was bruised and reddish brown in

colour. On internal examination, it was observed that the deceased had

suffered fractures on left parietal and temporal bone of the skull. There was

massive extra-dural and sub-dural haemorrhage on the frontal left parietal

temporal, vertex and occipital region of the brain. The cause of death, it was

opined to be the combined effect of asphyxia and coma caused by

strangulation and head injury by a blunt object. On the question of sexual

assault prior to death, it was noticed that hymen was ruptured and blood clots

were found to be present in the vaginal canal. Exhibit PW-10/A records that

posterior forchettae was ruptured upto anus. Vaginal mucosa was present,

congested lacerated hymen was ruptured. The said doctor also prepared a

vaginal swab for forensic examination. As per the FSL report marked

Exhibits PW-17/A, 17/B and 14/A, human semen was detected on the vaginal

swab Exhibit P-15. However, the blood group could not be ascertained as

there was no reaction. The FSL report, therefore, confirms that the deceased

„N‟ had been subjected to forceful sexual assault. The report also proves

blood was found on several exhibits, including the brick, slipper, stone piece,

etc. Blood was also detected on the underwear and the vest which the

appellant was wearing. Noticeably, the appellant was also medically

examined by Dr. Alok Kumar (PW-11) vide MLC Exhibit PW-11/A at about

1.40 P.M. on 24th March, 2009. The said MLC records presence of superficial

injuries and bruises, which were present on the body of the appellant.

13. At this stage, we would like to also refer to the statement of the

appellant under Section 313 Cr.P.C. and notice the answers given:-

"Q.1. It is in further evidence against you that you were working in a factory where Rajeshwari was working. N* was weak in studies. You told Rajeshwari that you are 10th pass and you can teach N* and you also told Rajeshwari that you can teach N* without fees. Thereafter you started visiting the house as tutor of N*. What you have to say?

A. It is correct.

Q.2. It is in evidence against you that on N* aged 8 yrs. was the daughter of Smt. Rajeshwari Devi w/o Rajeshwar Ram R/o RZ 123, Khayala. What you have to say?

A. It is correct that N* was the daughter of Ms. Rajeshwari Devi but I do not know her age.

Q-3. It is in further evidence against you that on 23.03.2009 you have reached at the house of Rajeshwari Devi. You told Rajeshwari that you have brought a rabbit from village and you also told that you wish to give rabbit to N* and you have told this version to N*. You had also told to Rajeshwari you had to go to village (native place) as your brother had expired. You also submitted that due to this reason you want to give the rabbit to N*. You repeatedly requested Rajeshwari to send Neha with you but Rajeshwari was not agreed. You told Rajeshwari that you will take N* with you and you will also come back with „N‟. Rajeshwari allowed N* to go with you. It was around 6.00-6.30pm. What you have to say?

A. It is correct that I had told Rajeshwari that I had rabbit for N*. Rest of the incriminating evidence is wrong as I had not told that my brother had expired or that I had to go to my native place nor had requested Rajeshwari to send her daughter with me. N* had not gone with me on my request. N* had accompanied me on her own, without my request and without her mother sending her with me.

Q-4. It is in further evidence against you that thereafter Rajeshwari Devi waited for N* but N* did not return. At the time when N* left house his father was in the house but he was sleeping. At about 7.00pm Rajeshwari Devi informed her husband about going of „N‟ with you. Rajeshwar Ram father of N* left house in the search of N* after informing her wife that he is going in the search of N*. What you have to say?

A. I do not know. I had left N* at Shani Bazar during the day time on 23.03.09. I do not know about the rest.

XXXXX

Q-8. It is in further evidence against you that in the night time you lead the police party in the jungle situated near Chokhandi behind Park Hospital and dead body of N* was recovered on your pointing out. Police had prepared the site plan Ex.PW13/A. Photographer was called at the spot. One polythene of mustard oil, stone/brick was also recovered on your pointing out. Same were converted into sealed pulenda and seized vide seizure memo Ex.pw13/B. Seizure memo of dead body is Ex.pw13/C. A kachhi of N*, slipper of N*, a dori (which was using in the commission of offence) were also recovered by the police and same were also converted into sealed pulenda and seized. What you have to say?

A. It is correct that I was taken to the spot from where the body of N* was recovered but I did not take the police to the spot as I have neither raped nor murdered „N‟. I do not about the documents."

(N* is the deceased victim, name withheld)

14. Appellant has also accepted that he was arrested vide arrest memo

Exhibit PW-13/F and he was personally searched vide memo Exhibit PW-

13/G. He affirmed as correct that he was medically examined to ascertain his

age. In response to question No. 28, the appellant had stated as under:-

"Q. 28. Do you want to say anything else?

A. I have not committed any offence. I have neither raped nor murdered N*. I am not aware about any of the documents which have been prepared during investigation against me. I am innocent and have been falsely implicated in this case by the police. Hence, I may be acquitted."