IN THE HIGH COURT OF DELHI AT NEW DELHI
Death Sentence Reference No. 1 of 2006
Reserved on : October 03, 2006
10.10.2006
Date of Decision: October 10, 2006
State ............... Petitioner
Through Mr. Ravinder Chadha,
APP.
versus
$ Mohd. Sheikh Noor Hussain ............. Respondent
Through Mr. Hem C. Vashisht,
Adv.
W I T H
CRIMINAL APPEAL NO. 271 OF 2006
Mohd. Sheikh Noor Hussain ............. Appellant
Through Mr. Hem C. Vashisht,
Adv.
Versus
$ State ............... Respondent
Through Mr. Ravinder Chadha,
APP.
CORAM:
HON'BLE MR.JUSTICE R.S.SODHI
HON'BLE MR.JUSTICE P.K.BHASIN
1.Whether Reporters of local papers may be allowed to see the judgment?
YES
2.To be referred to the Reporter or not? YES
3.Whether the judgment should be reported in the digest? YES
J U D G M E N T
R.S.SODHI, J:
1. While the State, in Death Sentence Reference No. 1 of 2006, supports
and justifies the judgment of conviction dated 20th March, 2006 and order of
sentence dated 31st March, 2006 of the trial court in Sessions Case No.
79/2004, accused-appellant, Mohd. Sheikh Noor Hussain, seeks to challenge the
judgment and order whereby the learned Judge has held him guilty under Section
302 IPC as also under Section 376(2)(f) IPC and sentenced him to death and a
fine of Rs.500/- for the offence punishable under Section 302 IPC; imprisonment
for life and a fine of Rs.500/- for the offence punishable under Section
376(2)(f) IPC in Criminal Appeal No.271 of 2006.
2. Brief facts of the case, as have been noted by the learned Additional
Sessions Judge, are as follows :
?Prosecution case is that accused who was also known by the name of Suljan was
residing with his family consisting of his wife Rabia (PW1), one daughter named
Jannati, aged 3 years and son Jannat aged 1? years in jhuggi cluster near cement
godown Safdarjung Railway Station, Netaji Nagar within the jurisdiction of
Police Station Sarojini Nagar. PW1 used to work as a part time domestic servant
in the nearby colony. On 24.6.2002, PW1 left her jhuggi in the morning for her
duty leaving behind her minor daughter and son in the company of her accused
husband. At about 9.30 a.m., PW1 returned her jhuggi and found that her
daughter Jannati (hereinafter to be referred as the victim) was weeping loudly
and her husband was standing naked in the jhuggi. The girl was lying on the
cot with injury marks on head and face and was bleeding from her vagina. When
PW1 enquired her husband about such condition of her daughter, he put on his
pant and ran away from there. PW1 chased her accused husband but he managed to
escape. Seeing PW1 chasing her husband, Jubeda (PW4), a neighbour of PW1 also
chased the accused. However, PW1 returned to her jhuggi and found that her
neighbour Meenu, w/o Rehman had removed her daughter to Safdarjung Hospital.
Dr. Rekha Trikey (PW6) prepared the MLC Ex. PW 6/A of the victim with history of
assault by the father of the girl as told by Meenu. Duty Constable Sunil Kumar
(PW6) gave telephonic information at about 10.45 a.m. about admission of a 3
years aged girl with unknown name, by one lady Meenu, r/o jhuggi cement godown,
in injured condition to P.S. Sarojini Nagar which was recorded vide D.D. No.30-
B. Copy of this DD entry was handed over to SI Seema Singh (PW16) through HC
Sukhbir Singh. PW 16 and constable Pramod (PW 7) went to the hospital and found
the girl admitted in injured condition and Meenu was also present there who
informed PW 16 that the girl had been raped by her father. In the meantime, PW
1 also reached in the hospital. PW 16 recorded the statement of PW1, which is
Ex. PW 1/DA on record. PW 16 made endorsement for registration of FIR on the
basis of which FIR No.252/02 Ex. PW 9/A was registered u/s 376 (2) (f)/323 IPC.
PW 16 received a sealed parcel and a sample seal from the doctor through duty
const. which were taken into possession. PW 16 took up the investigation of the
case and went to the place of occurrence. PW 16 prepared the site plan Ex. PW
16/2. PW 16 found a blood stained underwear of the victim lying on the bed
sheet of a cot. The bed sheet was found wet. Both these articles were sealed
with the seal of SST and were taken into possession. IO did not find the
accused in his jhuggi. At about 1 p.m., Jubeda (PW 4) found the accused in
Nehru Park. Accused is alleged to have made an extra-judicial confession about
having committed the rap of his daughter. Accused accompanied Jubeda. When
accused and Jubeda were near the cement godown, constable Jai Singh (PW 3) met
them. Jubeda handed over the accused to Constable Jai Singh. In the meantime,
SI Seema Singh (PW 16) on way to the police station met PW 3 with the accused in
bis custody near the gole chakkar Netaji Nagar. PW 3 handed over the accused to
PW 16 who then took the accused to his jhuggi. Accused produced his black
colour underwear before the IO. The IO took his underwear into possession in
presence of Jubeda, Meenu, Ct. Pramod and Ct. Jai Singh vide memo Ex. PW 3/D.
The IO arrested the accused and sent him to Safdarjung Hospital where his MLC
was prepared on the same day but he was not found having any injury on his
person. Accused was again medically examined on 25.6.2002 whereby he was found
capable of performing sexual act. The duty constable from Safdarjung Hospital
on 25.6.2002 at about 3.00 a.m. reported that the victim expired in the hospital
and this information was recorded as DD No.6A as a result of which investigation
of this case was converted to the investigation u/s 302/376(2) (f) IPC.
Thereafter, the investigation of the case was transferred to Additional SHO
Inspector Ishwar Singh (PW 17) who completed the inquest proceedings and moved
an application for conducting postmortem examination of the dead body of the
victim. Dr. Chadrakant (PW 18) conducted the postmortem. PW 17 recorded the
statement of remaining witnesses. PW 17 collected the MLC of the victim, the
MLC of the accused and postmortem report. The sealed parcels were sent for
examination at FSL, Malviya Nagar. As per FSL the underwear of the victim and
the accused were found having blood stains of human origin. Thereafter, charge
sheet was filed for trial of the accused u/s 302/376 (2) (f) IPC.
Charge u/s 376(2)(f) IPC and 302 IPC was framed against the accused to which he
pleaded not guilty and case was put to trial.?
3. The Prosecution, in order to bring home its case, examined as many as
19 witnesses. Of these, PW-1 is Smt. Rabiya, the wife of the accused who is
also the complainant. PW-2 is Doctor Joginder Kumar who proved that he
medically examined the accused whereby the accused was found capable of
performing a sexual act. PW-3 is Constable Jai Singh who joined the
investigation with the Investigating Officer, SI Seema Singh, along with other
Police Officers. PW-4 is Smt. Jubeda, a neighbour of the complainant and a
material prosecution witness who apprehended the accused and produced him before
the Investigating Officer and witnessed the proceedings conducted by the
Investigating Officer regarding recovery of the underwear of the accused and
other articles from his jhuggi. PW-5 is Smt. Meenu, another neighbour of the
complainant, who joined investigation with the Investigating Officer. This
witness turned hostile. PW-6 is Dr. Rekha Tirkey who proved the injuries on
the person of the victim by proving her MLC, Ex. PW-6/A. PW-6A is Constable
Sunil Kumar who informed the Police Station Sarojini Nagar about the admission
of the victim in an injured condition on 24.6.2002 at 10.45 a.m. and again
informed about death of the victim on 25.6.2002 in the Hospital. He also proved
that the doctor handed him over a sealed parcel, which he handed over to the
Investigating Officer. PW-7 is Constable Pramod Kumar who joined investigation
with Investigating Officer. PW-8 is Constable Vandana who proved that she
recorded DD No. 30-B on 24.6.2002 and handed over the copy of the same to Head
Constable Sukhbir Singh. PW-9 is Head Constable Surender Singh who proved that
he recorded the FIR of the case and proved the copy of the same as Ex. PW-9/B.
PW-10 is Head Constable Dharampal who proved the deposit of the case property in
sealed condition by the Investigating Officer on 24.6.2002 and by Inspector
Ishwar Singh on 26.6.2002. PW-11 is ASI Puran Singh who proved that he recorded
DD No. 6-A regarding death of the victim informed from the Hospital by Duty
Constable on 25.6.2002 at 3.00 a.m. PW-12 is Constable Dilbag Singh who proved
that he deposited the sealed parcels at Forensic Science Laboratory. PW-13 is
Constable Sunil who joined investigation with the Investigating Officer on
26.6.2002. PW-14 is SI Madan Pal who proved that he prepared the scaled site
plan. PW-15 is Constable Krishanbir who delivered the special report to the
Area Magistrate and senior Police Officer. PW-16 is SI Seema Singh, the
Investigating Officer of the case. PW-17, is Inspector Ishwar Singh, the second
Investigating Officer who proved that he moved an application for conducting
postmortem on the dead body of the victim. He also proved that he received four
sealed bottles from the doctor, which he deposited in the malkhana, and he also
collected the FSL reports, Ex. PW-17/E and Ex. PW-17/F. PW-19 is Dr. Chander
Kant who conducted postmortem on the dead body of the victim and proved the
postmortem report, Ex.PW-18/A.
4. PW-1, Rabia, states that she is wife of the accused, Mohd. Sheikh Noor
Hussain, and is working as a maid servant. She had two children, one male and
the other female. The daughter, Jannati, was aged about 3 years and the son 2
years of age. On the fateful day, she had gone to work at the kothi and left
the children in the custody of her husband at home. On return after 2-3 hours,
she saw Jannati lying on a cot in an unconscious condition. She called Meenu and
Jubeda from the nieghbourhood. Her husband was standing outside the jhuggi. She
told Meenu and Jubeda that her husband had killed the daughter. She also goes
on to state that she stated so out of anger for the reason that her husband used
to ill treat her. People gathered at the spot and her husband ran away. The
child was taken to the hospital at around 4.00 p.m. She was in an unconscious
condition and died at 8.00 p.m. She states that she was called to the Police
Station after two days where her statement was recorded and that she made a
wrong statement before the Police out of anger. The witness was cross-
examined by the Additional Public Prosecutor, but she did not support her
previous statement. On a court question as to what happened to her daughter and
how she died, the witness answered that her daughter was having fever but when
she returned from work, she had injuries on her person upon which she was taken
to the hospital. The child was injured on the hand and the head. This witness
was cross-examined by counsel for the accused to the effect that the witness had
been working as a part-time maid for the last 7-8 months and had left the
children with her husband everyday. Her husband had never misbehaved with any
of the children at any time.
5. Another witness is PW-3, Constable Jai Singh, who deposes that on
24.6.2002 he was posted at Police Station Sarojini Nagar and, while patrolling,
came to know that Mohd. Sheikh had committed rape on her daughter and that she
was admitted in Safdarjang hospital. On this, he went to the hospital to know
the condition of the child. At the hospital SI Seema Singh, Constable Pramod
Kumar and Constable Sunil Kumar met him. Constable Sunil Kumar produced a
small bottle which was sealed with the seal of ?SJH? and a sample seal and the
same were taken into possession vide seizure memo Ex. PW-3/A. The witness goes
on to say that Jubeda produced the accused before the Investigating Officer who
arrested him vide arrest memo, Ex. PW-3/C. Thereafter the accused, while in
Police custody, led them to the jhuggi at Netaji Nagar and from there got
recovered one kachha which was wrinkled. The same was converted into a parcel
vide memo Ex. PW-3/D.
6. PW-4, Jubeda, states that about 10-11 months back at about 9/10 a.m.
she was separating papers near railway line and saw one woman running behind
her husband raising an alarm ?parkro pakro?. The lady, on inquiry, told her
that her husband had given some injuries to her daughter and that she was
following him to apprehend him. This witness also followed the accused but
could not apprehend the him. Thereafter, they came to the jhuggi and found
people gathered and that the condition of the girl was serious. The witness
goes on to say that the mother of the deceased informed her that the accused had
injured the child. She also told her that the child was naked and was having
injuries on her private part. The injuries were caused by her husband. This
witness had personally seen the injuries which were bleeding. The child was
removed to the hospital. The witness further goes on to say that on the same
day she found the accused in Nehru Park and brought him to the Police Station.
The accused thereafter took the police party to the jhuggi from where he got
recovered an underwear.
7. The case of the Prosecution primarily revolves around the statement of
PW-1 as also PW-4. Of these witness PW-1 appears to have turned hostile. But
from a close analysis of her statement, it is evident that on the fateful day
she had left the children of the family in the custody of her husband and on
return after about 2 hours found that the girl child badly wounded and the
husband standing outside the jhuggi. Upon confrontation, the husband ran away.
This part of the testimony of PW-1 has not been challenged by the accused.
There is also no explanation offered by the accused as to how the child of the
family received injuries and, to say the least, and the nature of injuries
received by the child that have been set out in the postmortem report by PW-18,
Dr. Chanderkant which are as follows :
?1. Abraded contusion middle of scalp, size 4 cms x 2 cms.
2. Fracture lower 1/3rd of left humerus
3. Fracture of left elbow.
4. Well defined teeth mark on the upper part of back towards midline left side
lateral to left scapular region, size in an areas of 4 cms.x 4 cms.
5. Well define teeth mark on right miaxillary region in an area of 3 cms. X 3
cms.
6. Well defined teeth mark on right cheek extended towards right mandible base
in an area of 3 cms. X 2 cms.
7. Multiple abrasion on right sub-mandibular region in an area of 6 cms. X 3
cms.
8. Abrasions on forehead right side, above right eye brow in an area of 2
cms. X 2 cms.
9. Multiple, variable size abrasions tip of nose in an area of 3 cms. X 2
cms.
10. Well defined bite mark on left cheek in an area of 4 cms. X 3 cms.
11. Abrasions in the right inguinal region size 2 cms. X 2 cms.
12. Local examination of private part irregular tearing of hymen at various
places, clotted blood present at the torn margins. Tearing of vaginal wall at 6
O' clock and 4 O' clock position, clotted blood present, uterus normal.
During international examination, I noted the following findings :
1. There was extravasation of blood under scalp in the both frontal and both
parietal region, generalised subarchnoid, haemorrhage on superior surface of
both hemispheres. Brain was congested with petechael haemorrhages oedematous.
2. Both lungs were congested and oedematous
3. Stomach contained semi digested, semi liquid contents with healthy mucosa.
4. Liver, kidneys and spleen were congested.
I gave approximate time since death about 33 hours. In my opinion cause of death
cause shock, head injury and tearing of vagina with other associated injuries,
antemortem in nature, and collectively and injury No. 12 individually sufficient
to cause death in ordinary course of nature, injuries No. 4, 5, 6, 9 and 10 were
likely to be caused by human bite and injury No. 12 was caused by insertions of
firm, long object like penis.?
8. Counsel for the appellant submitted that there is no eye witness to the
occurrence and that mere presence of the injuries on the child is no conclusion
that the appellant has caused the injuries. He also submitted that the forensic
reports do not show that the underwear of the accused has the blood of the child
on it. He also submitted that on medical evidence no injury was found on the
appellant's penis. Therefore, the Prosecution has not been able to discharge
its onus probandi. However, we find that the circumstantial evidence brought
on record by the Prosecution reveals that the children of the family were left
in the custody of the appellant. The appellant had admitted also this fact in
his statement under Section 313 Cr.P.C. It was for the appellant to explain how
the child was injured and, in particular, the nature of injuries received by the
child. The incriminating circumstances noted by the trial court are as follows :
(1) PW1 had left her jhuggi on 24.06.2002 in the morning leaving behind
the victim in the care of the accused.
(2) On returning the jhuggi at about 9.30 a.m. PW1 found that the victim
was unconscious and was having injuries on her head and mouth and was bleeding
from her vagina.
(3) PW1 found the accused outside the jhuggi who ran away as people
collected.
(4) Leaving behind the victim in that very condition, PW1 chased the accused
but the accused made his escape good
(5) Meenu (PW5) took the victim to the Safdarjang hospital in absence of PW1.
(6) Meenu gave the history of the condition of the victim to the doctor as
assault by the father of the victim.
(7) Accused did not return his jhuggi and was later on apprehended by jubeda
(PW4) on the same day in the afternoon.
(8) Jubeda (PW4) handed over the accused to Const. Jai Singh (PW3) who then
handed him over to PW16 SI Seema Singh, the IO.
(9) On medical examination vide MLC dated 24.6.2002 accused was not found
having any injury. Accused was found capable of doing sexual act.
9. Taken cumulatively, the evidence on record conclusively establishes
that it was the appellant who, while being the custodian of his child, has
caused her injuries which resulted in her death. The chain of circumstances is
complete, leading to only one hypothesis of guilt. In that view of the matter,
we uphold the conviction of the appellant under Section 302 IPC.
10. As regards his conviction under Section 376(2)(f) IPC, we find that
the scientific evidence, namely, the CFSL report does not support the
Prosecution's case of rape. Firstly, the underwear which is stated to be blood
stained is not proved to have been worn by the accused at the time of the
incident; secondly, the blood stains do not match those of the deceased.
Further, there is no injury on the accused found during the medical examination.
Consequently, we acquit him of the charge under Section 376(2)(f) IPC.
11. Coming to the question of sentence, although this is a case which is
repulsive and gruesome in nature, yet we find that the accused comes from the
poorest strata of society and it cannot be ruled out that there is no
possibility of the accused being reformed and rehabilitated into the society nor
is there any evidence to show that the accused would continue to commit acts of
violence as would constitute threat to the society. In this view, we feel that
ends of justice would adequately be met if the sentence of death is converted to
sentence of 'imprisonment for life' together with a fine of Rs.500/- and in
default of payment of fine, further simple imprisonment for one year. Ordered
accordingly.
12. The Death Sentence Reference stands answered accordingly and the
appeal disposed of in the above terms.
[R.S.SODHI]
JUDGE
[P.K.BHASIN]
JUDGE
October 10,2006
jt.
