SHAKALU Vs. STATE

JUDGEMENT

(1.) THIS is an appeal filed by the appellant against the judgment dated 28th July, 2003 and the order of sentence dated 31st July, 2003 passed by the learned Additional District & Sessions Judge, Karkardooma Courts, Delhi convicting the appellant for offences under Sections 377/302 IPC and sentencing him to life imprisonment and a fine of Rs. 10,000/- for an offence under Section 302 IPC and rigorous imprisonment for a period of 10 years and a fine of Rs. 5000/-. In the event of default of payment of fine of Rs. 10,000/- and Rs. 5000/- he is further directed to undergo imprisonment of 2 years and one year respectively.

(2.) BRIEFLY stated the prosecution case against the appellant is that on 16th September, 2001 PW 1 Rameshwar s/o Badri Prasad resident of Village Kadgi, PS Kasdol, District Raipur, Chattisgarh lodged a complaint with the police station of New Ashok Nagar that his son Viren aged about 5 years was missing since evening. On the basis of the aforesaid information a DD entry No. 59 B Exhibit PW 1/B was recorded by the police. It is further the case of the prosecution that on 19th September, 2001 PW 1 Rameshwar again visited the police station and lodged a fresh complaint Ex.PW1/A about the suspicion that his son might have been kidnapped/enticed by someone. On the basis of the said report a DD Entry No. 10A, exhibit PW 4/1 was recorded. Endorsement was made on the said statement by the police which is exhibit PW4/1 and an FIR Ex.PW4/2 was registered and the same was given to ASI Surender Pal Singh, PW4. The said FIR was registered under Section 363 IPC and the same was given to ASI PW4 for the purpose of investigation. It is alleged that PW-4 ASI Surender Pal Singh, as a consequence of this, visited the spot, made enquires and found the dead body of Viren lying in a room on the ground floor of a multistory building of SFS Flats which was under construction. It was found that on the dead body of the deceased Viren one cement pillar was lying on the head and face. On the basis of the detection of the dead body the FIR was converted from Section 363 to 377/302/201 IPC and investigations were carried out. A dog squad was summoned to the spot which had a dog by the name 'Don' who had taken a smell of the stone which was purported to be found lying on the deceased and thereafter the dog is purported have taken the police party on to the first floor of the same building to a room where accused Sukalu was staying. The dog took the rounds of the said room and thereafter stood by the side of the appellant indicating as if the appellant was the person who is purported to have committed the crime. Then, the accused was arrested. The investigating officer collected and seized the blood stained pillar, blood stained earth and the same was sealed in a pullanda with a seal of G. S. vide seizer memo Exhibit P1. The dead body of the deceased was sent to Lal Bahadur Shastri Hospital for the post mortem. Statements of the witnesses under Section 161 Cr.PC were recorded. The appellant Sukalu, Davender, Salam Kumar and Sushil Kumar were living in the room in the same building under construction. They were interrogated and thereafter the accused is purported to have made a disclosure statement Ex.PW12/C admitting his crime as a consequence of which he was arrested. On the next day, the appellant was taken to Lal Bahadur Shastri Hospital where Dr. L. C. Gupta, collected his blood sample and examined him physically as to whether he is fit to perform the sexual intercourse. It is also alleged by the prosecution that on the date of examination by Dr. Gupta, the appellant is purported to have made an extra judicial confession before the Dr. Gupta that he had committed the unnatural sex with five boys and six girls apart from subjecting the deceased Viren to unnatural sexual intercourse. After investigation the challan was prepared and filed in the competent court.

(3.) THE prosecution in support of its case had examined 13 witnesses, PW1 Rameshwar S/o Badri Prasad the father of the deceased/ complainant who lodged the missing report about his son originally on 16th September, 2001 which was recorded by DD No. 59 B Exhibit which is PW1/B. It is further stated by him in his testimony that his son Viren who was aged five years, his body was found in a room on the ground floor in a building which was under construction in Kondli. This fact was informed to him by one Phool Singh whereupon he went to the said room and found his dead body lying with a three foot cement slab on his neck. He, thereafter, approached the police once again and lodged a fresh report with the police on the basis of which an FIR originally under Section 363 IPC was registered which is Exhibit PW 4/1 and the same was handed over to ASI Surender Pal Singh who came to the spot and thereafter got the said FIR converted from 363 to 377/302 IPC. Rameshwar has also testified to the effect that after detection of the dead body of his son, the appellant was interrogated. He is purported to have made a disclosure statement and also pointed out to the place of having committed the unnatural act on the deceased son. The appellant pointed to the place where this heinous act was committed by him exhibit PW 1/D, it is also stated by him that the police party had brought a dog squad, on 19th September, 2001 itself who had smelled the place where the dead body of the deceased was found and thereafter the dog took the lead and went to the room where the appellant was living. The police interrogated the appellant and other occupants of the said room whereupon the appellant is purported to have been arrested. He has proved various documents identification of the dead body of his son, receipt of dead body after postmortem which are Ex.PW1/F and Ex.PW1/G respectively. He has also identified slab Ex.P-1. The witness was cross examined but nothing has been brought about in his cross-examination which could discredit his testimony except that there is variation in the account furnished by him as to how the body of the deceased was detected as against the version given by PW-4 ASI Surinder Pal Singh. But it seems that the version given by PW-1 is more plausible whereas the version given by the IO seems to be concocted one.