Delhi High Court
Mohd. Mangan Insan @ Mangan Ali @ ... vs The State (Nct Of Delhi) on 3 July, 2018
$~R-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 110/2015
MOHD. MANGAN INSAN
@ MANGAN ALI @ ALI
@ MANGAT INSAN ..... Appellant
Through: Ms. Aishwarya Rao, Advocate
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through: Mr. K.S. Ahuja, APP for State
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
% 03.07.2018
Dr. S. Muralidhar, J.:
1. This appeal is directed against the impugned judgment dated
29th March 2014 passed by the learned Additional Sessions Judge („ASJ‟),
SE-01 in SC No.36/2013 arising out of FIR No.225/2011 registered at
PS Amar Colony convicting the Appellant for the offence punishable under
Section 363/376/377/302 Indian Penal Code („IPC‟) and the consequential
order on sentence dated 7th April 2014 whereby:
(i) For the offence punishable under Section 302 IPC, he was sentenced
to undergo rigorous imprisonment for life and payment of fine of
Rs.10,000/- and in default of payment of fine, to undergo further
simple imprisonment for 30 days;
(ii) For the offence punishable under Section 376 IPC, he was sentenced
to undergo rigorous imprisonment for seven years and payment of
fine of Rs.5,000/- and in default of payment of fine, to undergo
further simple imprisonment for 15 days;
(iii) For the offence punishable under Section 377 IPC, he was sentenced
to undergo rigorous imprisonment for five years and payment of fine
of Rs.5,000/- and in default of payment of fine, to undergo simple
imprisonment for 15 days; and
(iv) For the offence punishable under Section 363 IPC, he was sentenced
to undergo rigorous imprisonment for five years and payment of fine
of Rs.5,000/- and in default of payment of fine, to undergo simple
imprisonment for 15 days.
All sentences were directed to run concurrently.
Charge
2. The charge against the Appellant was that at around 9:00 pm on
10th June 2011, at J.J. Indra Camp, S.N. Puri, he kidnapped the deceased
minor, the three year old child of Shintu @ Shekhar (PW-6), from the lawful
guardianship of her parents. He was also charged with having raped the
minor girl in the bushes near the railway line near the wall of New Friends
Colony. He was further charged with having committed carnal intercourse
against the order of nature with the minor girl. Lastly, he was charged with
murdering the minor girl at the aforesaid place and time.
Version of the father of child
3. The father of the child (PW-6) has stated that at around 7:30 pm, his son,
Vinay (PW-8), accompanied by his daughter, the deceased minor, went to
the Mother Dairy booth at C-Market, S.N. Puri to buy milk. While PW-8
returned after 20 minutes, his daughter did not. Thereafter, PW-6 along with
his wife, his brother Vijay (PW-1) and others searched for her but she could
not be found even after an hour and a half. He thereafter lodged a complaint
with the PP Sri Niwas Puri (Ex.PW-6/A) and continued searching for her.
4. According to PW-6, on the following morning, i.e. on 11th June 2011, at
around 6 to 6.30 am, he was informed by someone that a child was found
lying near the railway tracks. He then went there and found his daughter
lying dead. She was naked with injury marks over her body. He then brought
her back to his jhuggi and the police also reached there. Sub-Inspector („SI‟)
K.P. Shah (PW-24) joined the investigation of the case along with Inspector
Govind Sharma (PW-25), who was the Station House Officer („SHO‟) of
PS Amar Colony. When they reached the house of PW-6, they found SI
Subhash Chand (PW-20) already present there.
Investigation
5. Initially, PW-20 had registered FIR No.225/2011 at PS Amar Colony
under Section 363 IPC on receipt of the complaint of PW-6 on
10th June 2011. At 7:00 am on the next morning, when PW-6 informed the
police about the dead body of the child having been located, PW-20 reached
there and then informed PW-25. Upon noticing several injury marks on the
body of the deceased, the SHO altered the FIR to be one under Section 302
IPC and took up the investigation.
6. The crime team was called to the spot. It appears that the dead body of the
child was first taken to the Department of Medicine and Emergency at
AIIMS at around 9:00 am on 11th June 2011 where it was first examined by
Dr. Rajesh Routray (PW-22). He, however, did not examine the body in
detail but referred the body for post-mortem examination which was
performed ultimately by Dr. Raghvendra Kumar (PW-16).
Post mortem
7. The post-mortem examination was conducted at 2:30 pm on
11th June 2011 and as many as thirty-one injuries were noticed all over the
body. These were in the form of contusions, abrasions, scratches, etc.
Among the grievous injuries were the following:
"-----
16. Blood is present inside anus. Anus is dilated. Anal wall is
seen contused. Two tears are present in anal sphincter, are at 6
o‟clock position another at 7 o‟clock position.
-----
25. On dissection of neck extravasation of blood is seen.
Muscles are seen contused. Neck lymph nodes and salivary
glands are congested. Thyrohyoid complex is compressed and
haematoma is present.
-----"
8. It was further noticed as under:
" On dissection, of skull, defused subscalp haematoma is
present over frontal region. On dissection of brain and
meninges, diffuse subdural haematoma of about 50 cc in size is
present over almost all the regions of brain also multiple
petechiae are seen in white matter.
Blood was present in orbital and aural cavities. Tip of
tongue was contused. Blood was present in trachea and
bronchi. Both lungs were congested, upper lobe of right lung
was contused. Multiple abrasions and contusions were present
over abdominal wall.
Large intestine was contused. Liver was congested.
Spleen was contused. Right kidney was contused and
perinephric haematoma was present. Both kidneys were
congested. Muscles of Pelvic wall were seen contused. Urinary
bladder and urethra were seen contused.
Genital organs: Labia majora, labia minora, vaginal wall,
cervical wall were seen contused. Posterior fornix was torn,
tear was seen in vaginal wall in posteriorly. Blood was present
in vagina cervix and uterus. Uterus was contused. One foreign
object (wooden piece) was recovered inside uterus and vagina.
Hymen was also torn.
Below waist, no clothes were present and body was in
nude condition. Blood stains were present over face, ear, nose
genital region, scalp hairs and buttocks."
9. The opinion expressed by PW-16 was that there was:
"Ante mortem strangulation combined with smothering and
head injury. These were sufficient to cause death individually
and combined effect in ordinary course of nature. There are
injuries present over body and genital which were suggestive
of natural sexual assault, unnatural sexual assault as well as
"torture". All injuries are antemortem in nature. The time since
death in this case was about 16:00 hours."
10. PW-16 collected the samples of the following and handed them
over to the IO:
"Scalp hair, vaginal swab, anal swabs, blood in gauze, uterus
in normal saline, foreign object (wooden piece) found inside
vagina, uterus and clothes and articles as mentioned in the
post mortem report."
Arrest
11. On 12th June 2011, PW-25 recorded the statement of PW-8 and Master
Vishal (PW-23) both of whom were about 5 years old at the time. They
informed him that they had seen the Appellant take away the deceased at
around 9:00 pm on 9th June 2011. According to PW-25, he then made efforts
to locate the Appellant at his address but he was not there. The information
given by the two children was that the Appellant was plying a rickshaw in
the same area.
12. According to PW-25, on the intervening night of 14th-15th June 2011, on
the basis of secret information, the Appellant was apprehended from the
railway tracks near S.N. Puri. The Appellant is stated to have made a
disclosure statement (Ex.PW-25/C).
13. The MLC of the Appellant (Ex.PW-13/A) was prepared by Dr. Hari
Prasad (PW-13) and records that an abrasion of dark brown colour
measuring 2 x 0.2 cm (parallel, two in number) was present over the middle
of the chest in anterior aspect. It also mentions an abrasion of dark brown
colour over the dorsal aspect of the forearm (left) near the elbow joint
measuring 4 x 3 cm. PW-13 collected the blood sample of the Appellant in
gauze, a penile swab with control, and the Appellant‟s underwear and pants
and handed them over to the IO. Since the Appellant, in his disclosure
statement, has purportedly named one more suspect, that person was also got
medically examined by the IO. According to PW-25, during the
investigation, nothing incriminating emerged against the said suspect.
14. It must be noticed at this stage that the reports of the Forensic Sciences
Laboratory („FSL‟) dated 21st September 2011 (Ex.PW-19/A, Ex.PW-19/B)
showed that while human semen was detected on the underwear of the
Appellant (Ex.17) it could not be detected on any of the other exhibits which
included the underwear of the child. The blood detected on some of the
exhibits, namely the blood stained earth, underwear and hair, were found to
be of human origin but their grouping could not be detected. The blood
found on the T shirt worn by the child was of blood group A which was her
blood group. The blood sample collected from the Appellant was found to
contain blood of group B. The semen stain on his underwear was also found
to be of B group.
Trial
15. At the end of the investigation, the charge sheet was filed and by the
order dated 17th November 2011, the trial Court framed charges against the
Appellant in the manner indicated hereinabove.
16. Two of the key witnesses for the prosecution, i.e. PW-23 and PW-8,
were children. PW-8 is the brother of the deceased minor and PW-23 is the
witness who is said to have last seen the deceased minor in the company of
the Appellant. Their depositions will be discussed in further detail hereafter.
17. When incriminating circumstances were put to the Appellant under
Section 313 Code of Criminal Procedure („Cr PC‟), he denied them. He
claimed to have been falsely implicated since he had a quarrel at a ration
shop one month prior to the incident with PW-1 (Vijay), the brother of
PW-6 who is the father of the deceased. However, no defence evidence was
led.
Impugned judgment of the trial Court
18. In the impugned judgment, the trial Court noted the argument made on
behalf of the counsel for the Appellant that the FSL reports had not
connected the Appellant with the offence. The trial Court observed that the
FSL results may have been inconclusive due to many reasons including
putrefaction of the samples, improper drawing of the samples, delay in
sending the samples to the FSL, etc. It was held, therefore, that this cannot
be a sole ground to acquit the Appellant when all other circumstances
pointed to his guilt.
19. Further, the fact that neither the weapon of offence nor the rickshaw of
the Appellant were recovered was also held not to weaken the case of the
prosecution since his guilt stood proved by the statements of the PWs. The
trial Court concluded that the prosecution had been able to prove the
following circumstances:
"1) The post mortem report of the deceased Ex.PW-16/A
proves that the victim died of natural sexual assault,
unnatural sexual assault as well of torture and 31 injuries
are found on the person of the victim and all the injuries
are opined to be ante mortem in nature;
2) The unshattered testimony of PW-23 prove that the
deceased was lastly seen in the company of the accused;
3) The testimony of PW-2, PW-3 and PW-6 prove the
presence of the accused near or around the place of
incident around the time when the deceased had died;
4) There was no long time gap between the time when the
deceased was seen in the company of accused and when
she died and as such, it rules out any third party
intervention;
5) The motive to commit murder was the lust of the accused
and the quarrel with the uncle of the deceased for money
which persuaded the accused to firstly commit rape as
well as unnatural offence with the deceased; and
6) The tender age of 3 years of the victim child who because
of her tender age is not capable to put much resistance
and is a helpless victim."
20. According to the trial Court, the circumstances proved formed a
complete chain which pointed unerringly to the guilt of the Appellant. By a
separate order on sentence, the Appellant was sentenced for each of the
offences with which he was charged in the manner indicated hereinbefore.
21. This Court has heard the submissions of Ms. Aishwarya Rao, learned
counsel for the Appellant, and Mr. K.S. Ahuja, the learned APP for the
State.
Law relating to circumstantial evidence
22. This being a case of circumstantial evidence, it would be pertinent to
recapitulate the law in this regard. The law is fairly well settled and the
duties of the Court in evaluating such evidence have been reiterated on a
number of occasions. In Mahmood v. State of UP (1976) 1 SCC 542, the
Supreme Court observed as under:
"It is well settled that in a case dependent wholly on
circumstantial evidence, the Court before recording a
conviction on the bias therefore must be firmly satisfied -
(a) that the circumstances from which the inference of guilt
is to be drawn, have been fully established by
unimpeachable evidence beyond a shadow of doubt;
(b) that the circumstances are of a determinative tendency
unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable
of explanation on any reasonable hypothesis save that of
the guilt sought to be proved against him."
23. In Tanviben Pankaj Kumar Divetia v. State of Gujarat (1997) 7 SCC
156, the Supreme Court explained the law thusly:
"The principle for basing a conviction on the basis of
circumstantial evidence has been indicated in a number of
decisions of this Court and the law is well settled that each and
every incriminating circumstance must be clearly established
by reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can be
safely drawn and no other hypothesis against the guilt is
possible. This Court has clearly sounded a note of caution that
in a case depending largely upon circumstantial evidence, there
is always a danger that conjecture or suspicion may take the
place of legal proof. The Court must satisfy itself that various
circumstances in the chain of events have been established
clearly and such completed chain of events must be such as to
rule out a reasonable likelihood of the innocence of the
accused. It has also been indicated that when the important link
goes the chain of circumstances gets snapped and the other
circumstances cannot, in any manner, establish the guilt of the
accused beyond all reasonable doubts. It has been held that the
Court has to be watchful and avoid the danger of allowing the
suspicion to take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between normal
certainty and legal proof. It has been indicated by this Court
that there is a long mental distance between "may be true" and
must be true" and the same divides conjectures from sure
conclusions."
24. In Gagan Kanojia & Anr. v. State of Punjab (2006) 13 SCC 516, the
Supreme Court opined:
"9. ... Indisputably, charges can be proved on the basis of the
circumstantial evidence, when direct evidence is not available.
It is well settled that in a case based on a circumstantial
evidence, the prosecution must prove that within all human
probabilities, the act must have been done by the accused. It is,
however, necessary for the courts to remember that there is a
long gap between 'may be true' and 'must be true'. Prosecution
case is required to be covered by leading cogent, believable and
credible evidence. Whereas the court must raise a presumption
that the accused is innocent and in the event two views are
possible, one indicating to his guilt of the accused and the other
to his innocence, the defence available to the accused should be
accepted, but at the same time, the court must not reject the
evidence of the prosecution, proceeding on the basis that they
are false, not trustworthy, unreliable and made on flimsy
grounds or only on the basis of surmises and conjectures. The
prosecution case, thus, must be judged in its entirety having
regard to the totality of the circumstances. The approach of the
court should be an integrated one and not truncated or isolated.
The court should use the yardstick of probability and appreciate
the intrinsic value of the evidence brought on records and
analyze and assess the same objectively.
10. We would proceed on the well-known principles in regard
to appreciation of the circumstantial evidence which were
noticed by the High Court in the following terms:
1) There must be a chain of evidence so far complete as not
to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused.
2) Circumstantial evidence can be reasonably made the
basis of an accused person's conviction if it is of such
character that it is wholly inconsistent with the innocence
of the accused and is consistent only with his guilt.
3) There should be no missing links but it is not that every
one of the links must appear on the surface of the
evidence, since some of these links may only be inferred
from the proven facts.
4) On the availability of two inferences, the one in favour of
the accused must be accepted.
5) It cannot be said that prosecution must meet any and
every hypothesis put forward by the accused however
far-fetched and fanciful it might be. Nor does it mean
that prosecution evidence must be rejected on the
slightest doubt because the law permits rejection if the
doubt is reasonable and not otherwise."
25. The Supreme Court in Anjan Kumar Sarma v. State of Assam (2017)
14 SCC 359 summarized the legal position as follows:
"(1) The circumstances from which the conclusion of guilt is
to be drawn should be fully established. The
circumstances concerned 'must' or 'should' and not 'may
be' established.
(2) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not the explainable on any other hypothesis
except that the accused is guilty;
(3) The circumstances should be of a conclusive nature of
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 shown that in
all human probability the act must have been done by the
accused [See: Sharad Birdhichand Sarda v. State of
Mahrashtra (1984) 4 SCC 116; M.G. Agarwal v. State of
Maharashtra AIR 1963 SC 200]."
Appellant 'last seen' with deceased
26. The first circumstance sought to be proved by the prosecution is that of
the victim being last seen in the company of the Appellant. In this regard,
reliance has been placed on the evidence of the two child witnesses, PWs 8
and 23.
27. The brother of the deceased (PW-8) was five years old at the time of the
incident and around seven years old at the time of being examined in Court.
It must be noted at the outset that his statement under Section 161 Cr PC had
already been recorded by the police. The learned trial Judge had recorded
the statement of this witness without administering oath after satisfying
himself that the witness was in a position to give clear and cogent answers.
28. In answer to the question as to whether PW-8 was accompanying his
sister when she went missing, he answered:
"Ans: Yes. I do not remember the date, but on Friday at about
07.00 pm, I along with Shanno, Ansh and one more child had
gone to the market to bring milk. The market at a little distance
from our jhuggi. When we were coming back after bringing
milk from the dairy, my sister Shanno was taken away by one
Ali, who was residing in the same locality/jhuggis. Ali was
residing at a distance of five houses away and used to ply a
rickshaw. Ali told me that I should go away with the milk and
he will come back after buying banana for Shanno. Ali had
taken Shanno in a rickshaw. I became busy in playing and on
the next date on Saturday, I saw the dead body of Shanno.
Q. Can you identify Ali?
Ans. Yes. Witness points out towards accused Mohd. Mangam
Insan @ Ali, present in the Court."
29. In his cross-examination, PW-8 accepted the suggestion that he had
narrated facts as told to him by his father but an overall reading of the
answer shows that he was also independently aware of the facts. He was
specifically confronted with his previous statement to the police (Ex.PW-
8/DA) regarding his identification of the accused. In response to the
question of whether he had seen the Appellant in the company of his uncle,
PW-1, he answered as under:
"Ans. No.
(Confronted with portion A to B in the statement Ex.PW-
8/DA of the witness recorded by the police, in response to the
question as to how he came to know about the name Ali that he
sometime used to roam with his Chacha Vijay). On asking
whether he had told this fact to the police, witness admits this
fact. He is again asked whether he had seen Ali roaming with
his Chacha Vijay. He denies having seen Ali with Vijay. Ali
had met Shanno on the way when I was bringing milk and took
her away from the midway. Ali had not taken Shanno while she
was playing outside. Child Vishal had not gone with me. He
was not playing with me. He is residing in the neighbourhood.
It is correct that I am deposing what has been told to me by my
father. It is correct that I did not know Ali before my father had
told me who he was."
30. It was clear that although he did not know the Appellant, "many people
used to call him as Ali". Although the learned counsel for the Appellant
submits that this child was at best a tutored witness and could not have
spoken in the manner he did without being asked to do so by his father, there
have been many aspects of the answers given by this child which indicate
that he knew the facts even independent of his father asking him to depose
to that effect. For instance, the witness makes it clear that the Appellant met
the deceased minor when she was returning from the market having bought
the milk and that the Appellant took her away then and not while the
deceased minor was playing. In other words, this child has withstood the
cross-examination.
31. At this stage, it would be appropriate for the Court to dwell upon the
legal position when it comes to evaluating the evidence of a child witness. In
Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341, it was
held as follows:
"A child witness if found competent to depose to the facts and a
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 Crl.A.
222/2002 Page 9 of 16 must be a reliable one and his/her
demeanour must be like any other competent witness and there
is no likelihood of being tutored."
32. In Ranjeet Kumar Ram v. State of Bihar 2015 (6) SCALE 529, it was
observed:
"Evidence of the child witness and its credibility would depend
upon the circumstances of each case. Only precaution which the
court has to bear in mind while assessing the evidence of a
child witness is that the witness must be a reliable one."
33. In Nivrutti Pandurang Kokate v. The State of Maharashtra (2008) 12
SCC 565, the Supreme Court highlighted the importance of the trial Judge
having to be satisfied that the child understands the obligation of having to
speak the truth and is not under any influence to make a statement. The
Court explained:
"The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any examination
which will tend to disclose his capacity and intelligence as well
as his understanding of the obligation of an oath. The decision
of the trial court may, however, be disturbed by the higher court
if from what is preserved in the records, it is clear that his
conclusion was erroneous. This precaution is necessary because
child witnesses are amenable to tutoring and often live in a
world of make-believe. Though it is an established principle
that child witnesses are dangerous witnesses as they are pliable
and liable to be influenced easily, shaken and moulded, but it is
also an accepted norm that if after careful scrutiny of their
evidence the court comes to the conclusion that there is an
impress of truth in it, there is no obstacle in the way of
accepting the evidence of a child witness."
Evidence of PW-23
34. Keeping the above legal discussion in mind, this Court has examined the
evidence of not only PW-8 but also that of PW-23 very carefully to
determine whether there are any material inconsistencies or contradictions.
PW-23 was another five year old child who happened to be easing himself
on a garbage dump when he noticed PW-8 and his sister returning from
Mother Dairy. When asked how he knew that the deceased has expired, PW-
23 very clearly stated that he had seen the Appellant take away the deceased
"by making her sit on a rickshaw at 8:00 pm. I was present near Khata at
that time". He specifically denied the suggestion that his parents had told
him what he had to speak in Court. At one point, when asked specifically
whether his parents had instructed him as to how he should depose in Court,
he replied, "Yes. They had told me that court mein jaa ke sahi sahi gawahi
deni hai".
35. PW-23 was cross-examined on two separate dates, i.e. 9th October 2012
and 13th November 2012 and he remained consistent that it was the
Appellant who took the deceased minor away on a rickshaw by telling PW-8
to go back home and that "he is going to fetch a banana for his sister".
Searching questions were put to PW-23 during the cross-examination but he
remained firm. For example, he said:
"On the day, I had seen Shanno with Ali, I had gone to school. I
had returned from the school at about 01:00 p.m. I had gone to
khatta, which was situated near my residence. It is correct that
there was darkness at 08:00 p.m. There was light coming from
the electric pole. Electric pole is on the road near the khatta.
That road goes towards Mother Dairy. All the vehicles
including bus pass through the said road. I had not seen Shanno
and Vinay, when they were going to bring milk from Mother
Dairy. I had seen them when they were returning. Vinay was
having „dolchi‟ (pot) in his had. Shanno was present with
Vinay. Vijay was going ahead whereas Shanno was coming
behind him. I was sitting in the khatta and was doing latrine. It
was wrong to suggest that Shanno and Vinay, both had gone
together. Voln. Shanno had lacked behind whereas, Vinay had
gone with the dolchi (pot). Then Ali had taken away Shanno on
his rickshaw."
36. This witness also knew that there was a quarrel between the Appellant
and PW-1 but he was quick to deny the suggestion that PW-1 had told him
about what he should speak in Court. He further stated, "It is wrong to
suggest that I am deposing falsely at the instance of Vijay as a quarrel had
taken place between Vijay and Ali". He stated as under:
"I know Ali since long before. Ali was residing at the jhuggies,
where Biharies reside. Jhuggi of Ali is at a distance from
khatta. I had not seen Ali after he had gone on his rickshaw
with Shanno. Police had not shown Ali to me after he was
apprehended. Police had apprehended Ali from his jhuggi in the
morning of the next day."
37. While it appears that there might be a minor contradiction in that PW-23
has stated that the Appellant was arrested from his jhuggi while the IO has
stated that he was arrested near the railway lines, this by itself cannot assail
the reliability of the witness.
38. The conclusion is that the PWs- 8 and 23 have corroborated each other
on all the material aspects and have stood firm during their respective cross-
examinations. Particularly as far as PW-23 is concerned, it does not appear
that he was told by anyone how he should depose in Court.
39. Learned counsel for the Appellant submitted that it was unusual that
neither PW-8 nor PW-23 spoke to anyone about what they noticed on
10th June 2011 and about the deceased having been taken away by the
Appellant. However, it is evident that as far as PW-23 is concerned, he
seems to have disclosed the same to an aunt on the following morning at
around 7:00 am. There could be many reasons why a child is unable to
convey all that he has seen and noted. There is nothing put to either child in
the cross-examination to elicit any particular reason why they did not
disclose to their respective parents about what they had noted on
10th June 2011 qua the deceased. The Court is not satisfied that this one
aspect of the children not speaking immediately about the deceased having
been taken by the Appellant should result in their entire testimonies being
discredited. Both child witnesses have been cross-examined extensively by
the defence and nothing in their answers has come to light which even
remotely suggests that they are speaking falsely. The Court is also unable to
appreciate why two young children would want to falsely implicate anyone
at all, let alone the Appellant. The Court is therefore satisfied that the
depositions of both child witnesses lend assurance to the Court of the
important circumstance of the Appellant taking away the deceased minor in
his rickshaw at around 8:00-9:00 pm on 10th June 2011 after which the child
was found dead near the railway tracks.
40. The Appellant was also seen by at least two prosecution witnesses
coming from the railway line side on the night of 10 th June 2011. The first is
Vijay, son of Kishan Pal (PW-2) (who incidentally has the same name as
PW-1), a neighbour of PW-6 who saw the Appellant coming from the
railway lines carrying a wooden stick. Likewise, Harish (PW-3), the brother
of PW-6, also noticed the Appellant at around midnight, coming from the
side of theka (liquor shop) and having a wooden stick. The Appellant was
not seen thereafter till he was arrested on the intervening night of
14th/15th June 2011 on the basis of secret information.
Arrest proved
41. On the aspect of the arrest of the Appellant, the IO (PW-25) was
subjected to intense cross-examination. Again, nothing that could help the
Appellant emerged as a result. With the Appellant not volunteering any
alternative version of where he might have been during this time, as he was
not seen by anyone after 9 pm on 10th June, 2011 till when he was arrested,
is another circumstance that works against the Appellant.
Motive established
42. The prosecution has also sought to establish the motive for commission
of the offence as arising out of the quarrel that had occurred, between
Appellant and the brother of PW-6. While the Appellant has urged that this
was the reason for his false implication, this circumstance actually works
against the Appellant with even PW-23 speaking about it apart from PW-1
himself. Neither witness has been shown to be stating falsehood on this
aspect.
Homicidal death
43. The medical evidence proves beyond all reasonable doubt that the death
was homicidal. While learned counsel for the Appellant tried to persuade
this Court that the FSL report does not connect the accused with the crime,
the overwhelming evidence of the prosecution witnesses on all other aspects
does prove beyond all reasonable doubt the other links in the chain of
circumstances.
44. At this stage, it was pointed out by learned counsel for the Appellant that
no attempt was made by the prosecution to have the wooden stick carried by
the Appellant compared to the wooden piece found in the body of the
victim. While this could be a lapse on the part of the investigating agency,
the Court is satisfied that the other evidence on record more than sufficiently
proves the case of the prosecution against the Appellant beyond reasonable
doubt.
Chain of circumstances establishes guilt
45. The Court concurs with the trial Court on each of the circumstances
forming the complete chain which have been held by the trial Court to have
been proved beyond reasonable doubt by the prosecution. The circumstances
that stand proved point unerringly to the guilt of the Appellant and no one
else in the commission of the crime.
Sentence
46. The crime in the present case is a ghastly one. A three year old girl has
been subjected to extreme brutality and sexual violence resulting in a
traumatic death. The Court is however surprised to find that the order on
sentence dated 7th April 2014 of the trial Court is perfunctory. For an
offence for which the alternative sentence is capital punishment, the trial
Court does not even appear to have discussed or considered that possibility.
It was necessary for the trial Court in a case as ghastly as this one to have
paid greater attention to the aspect of sentencing keeping in view the various
factors that have been discussed time and again in several judgments of the
Supreme Court and this Court. Learned APP submitted that while there is no
explanation why the State has not filed an appeal asking for the maximum
punishment, he urged this Court to consider his oral request in that regard at
this stage.
47. The Court is not inclined to consider the above plea of the State, without
an appeal being filed by it and at a stage when the appeal of the accused has
been finally heard and the judgment dictated. The Court notes that the
Appellant here was represented throughout the trial by amicus curiae. The
cross-examination of some of the key prosecution witnesses, other than the
child witnesses, appears to be perfunctory. The Court is left with the
impression that many more aspects of the case could have emerged had the
accused been able to afford a lawyer of his choice.
48. Also, the question of awarding the maximum penalty entails a separate
hearing and a detailed enquiry. The trial Court does not appear to have been
conscious of the need to undertake the mandatory exercise of calling for a
report of the probationary officer on the social background of the accused
and his conduct in prison. There was thus no material available for a
meaningful assessment of the aggravating and mitigating circumstances
preceding the awarding of the maximum sentence. The State has not
presented those relevant facts even at this stage.
Compensation to the family of the victim
49. While therefore the Court is not inclined to consider the plea for
enhancement of the punishment, it notes with some consternation that the
aspect of awarding compensation to the family of the victim has not been
touched upon by the trial Court. The Court finds that no reference has been
made by the trial Court to the victim compensation scheme that has been
framed and the compensation that is payable to the victim in terms thereof
under Section 357A Cr PC.
50. Therefore, the Court directs the Delhi State Legal Services Authority
(„DSLSA‟) in terms of Section 357A (5) Cr PC to forthwith undertake an
inquiry and within two months award and ensure disbursal of the appropriate
compensation to the family of the victim in terms thereof.
51. For this purpose, a certified copy of this judgment will be delivered
forthwith to the Secretary DSLSA with a further direction to submit a
compliance report to this Court within three months from the date of receipt
of the certified copy of this judgment. If no such compliance report is
forthcoming within the time stipulated, the Registry will place a note before
the Court for further directions.
52. With the above observations, the appeal is dismissed but, in the
circumstances, with no order as to costs. The trial Court record be returned
forthwith together with a certified copy of this judgment.
S. MURALIDHAR, J.
VINOD GOEL, J.
JULY 03, 2018
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