Delhi District Court
State vs . Rabinder Mishra @ Rabin Mishra, on 15 July, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No. 257/09
FIR No.145/04
PS Tilak Nagar
U/s 302/201/376/363/366 IPC
ID No. 02404R6286002004
State Vs. Rabinder Mishra @ Rabin Mishra,
@ Ramin Mishra S/o Late Raj Pati Mishra,
R/o Village Meghol, PS Khodarand Pur,
Distt. Begu Sarai, Bihar.
Date of Institution in Sessions Court :17.11.2004
Date of transfer to this Court : 14.01.2009
Date of Judgment : 12.07.2010.
JUDGEMENT
1. In brief, the prosecution story is that on 08.03.2004, complainant Ram Pati appeared before SI Mahender Singh and got recorded his statement, which read as under:-
"That he was selling food on the pavement, near Subhash Nagar Mode. Yesterday on 07.03.2004, at around 7:00 p.m, his daughter Pushpa, aged 6 years, St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 2 whose description was also given in the said complaint had gone to play outside his house with his another daughter Kiran, aged 10 years, and near Sauchalya of their jhuggies, their known person Rabin Mishra S/o Dalpati came there and took his daughter Pushpa on the pretext of getting her biscuits by taking her on his shoulder. When, his another daughter Kiran stopped him, he slapped her.
Kiran told this fact to him and he waited for Rabin Mishra till 12:00 night at Keshav Pur Mandi, where he was driving cycle rickshaw and used to sleep there, but he was not found there, and today in the morning, he had lodged a missing complaint of his daughter at PS Tilak Nagar and when he reached back at Keshav Pur Mandi, at that time Rabin Mishra was present there along with his cycle rickshaw and when he asked him about his daughter Pushpa. He on the pretext of getting his chapples slipped away.
Thereafter, he asked the Pan Seller near his jhuggi, who told him that yesterday on 07.03.2004, he had seen Rabin Mishra along with his daughter at around 7:00 p.m, and he gave biscuits and balloons St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 3 to Pushpa after buying the same from his shop. Thereafter, Rabin Mishra had taken away Pushpa on his shoulder and he had complete suspicion that the said Rabin Mishra had enticed away his daughter Pushpa.
2. On the said complaint, an FIR U/s 363 IPC was registered at PS Tilak Nagar and a DD No.18B had already been recorded during the day time, regarding the missing of the daughter of Ram Pati at PS Tilak Nagar. The investigation(s) were taken up by SI Mahender Singh, who flashed wireless message through out India, regarding the missing child.
3. The abandoned cycle rickshaw of the said accused Rabin Mishra was seized by the police and statement of the owner of the cycle rickshaw Dalip Kumar was also recorded.
4. On 20.03.2004, vide DD No. 52B, an information was received at 11:05 p.m, that at PS Vikas Puri vide DD No.7A, one dead body of a girl, aged around 10-11 years was lying in front of DDA Flats in the park in decomposed condition. Further investigation(s) were handed St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 4 over to Inspector Pratap Singh.
5. During investigation(s) by the Inspector Pratap Singh, the said dead body was identified through its clothes. Inquest proceedings were got conducted. After conducting the postmortem at DDU Hospital, the dead body was handed over to the relatives and clothes of the deceased and other articles, which were found on the body of the deceased were also seized. The cause of death was opined as due to manual strangulation and sexual attempt (rape) could not be ruled out. Relevant samples were sent to CFSL Hyderabad for forensic evaluation.
6. On 25.06.2004, SI Mahender Singh and HC Manish Pal arrested accused Rabinder Mishra from his native village, who made a disclosure regarding his involvement in the present case, and pursuant to his disclosure statement, the site plan of the spot was prepared and the accused also got recovered one panty of the deceased after digging the earth underneath which it was lying, which was also seized.
St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 5
7. The accused was also medically examined at DDU Hospital. His semen sample, blood sample and other samples were also seized and his sexual competency was also obtained vide MLC. The relevant samples pertaining to the accused were also sent to CFSL Hyderabad.
8. After completion of the investigation(s), a charge sheet U/s 363/376/302/201 IPC was filed in the court.
9. Upon committal of the case to the court of session, a charge U/s 363/366/376/302/201 IPC was framed against the accused vide order dt. 13.01.2005, to which he pleaded not guilty and claimed trial.
10. Thereafter, the prosecution in support of its case has examined 18 witnesses.
PW1 is Lakhan, who had identified the dead body of the deceased at mortuary of DDU Hospital on 21.03.2004. PW2 is HC Balbir Singh, who has proved the copy of the FIR Ex.PW2/A. PW3 is Ram Pati Paswan, the father of the accused and the St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 6 star witness of the prosecution.
PW4 is Kumari Kiran, the sister of the deceased and other star witness of the prosecution.
PW4A is W/HC Krishna, who has proved the DD No.18B, Ex.PW4/A. PW5 is ASI Sunita Dutta, who has proved the DD No.7A, dt. 20.03.2004 Ex.PW5/A. PW6 is Amla Devi, the mother of the deceased.
PW7 is Girdhari, a public witness and main witness of last seen.
PW8 is Dalip Kumar, the owner of the cycle rickshaw, used to be driven by the accused HC Pawan Kumar, another formal witness, inadvertently has also been numbered as PW8.
PW9 is SI Mahesh Kumar, who has proved the scaled site plan Ex.PW9/A. PW10 is HC Ram Swaroop, who was MHC(M) at PS Tilak St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 7 Nagar, with whom various case properties were deposited during the investigation and were sent to CFSL Hyderabad.
PW11 is ASI Parsuram, another formal witness, who had deposited certain sealed parcels of this case at CFSL Hyderabad, PW12 is ASI Mange Ram, who was posted at PS Vikas Puri on 20.03.2004 and who had spotted the dead body of a girl, lying in a gutter/sewerage near Keshav Pur Village, DDA Park.
PW13 is HC Manish Pal, who had arrested the accused along with SI Mahender Singh on 25.06.2004 from his native place, and who is also a witness of recovery.
PW14 is Inspector Mahender Singh, who was the initial I.O of this case, and who had also arrested the accused with PW13 on 25.06.2004 and is a recovery witness.
PW15 is HC Pawan Kumar, who had taken the sealed parcels to CFSL Hyderabad on 26.07.2004.
PW16 is Inspector Pratap Singh, the I.O of this case, who has deposed regarding the investigation(s), as were carried out during St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 8 the course of the present case.
PW17 is Dr. Bhavna from DDU Hospital, who has proved the MLC of the accused, prepared by Dr. Vishal Sehgal in his absence Ex.PW17/A, by way of secondary evidence.
PW18 is Dr. B.N. Mishra, autopsy surgeon, DDU Hospital, who has proved the postmortem report of the deceased Ex.PW18/A.
11. Thereafter, statement of the accused U/s 313 Cr. PC was recorded, in which the defence of the accused was that he had been falsely implicated in this case and he never made any disclosure statement and he had lend Rs. 17,000/- to PW3. When he asked his money back, there was an altercation between them and since PW3 never wanted to return the money, therefore, PW3 falsely implicated him in this case. However, he chose not to lead any defence evidence.
12. I have heard Ld. Amicus-curiae Ms. Bindiya Malhotra and Sh. G.S. Guraya, Ld. Addl. PP for the state and perused the record.
13. In the present case, there is no direct evidence and the entire St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 9 case of the prosecution is based upon circumstantial evidence. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be 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 t hat of the guilt sought to be proved against him".
14. However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091- AIR 11952 SC 343 and stated the five golden principles constituting the Panchsheel of the proof of a case based on circumstantial evidence as follows:
St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 10 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' arid 'must be or should be proved'.....
(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 be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they; should exclude every possible hypothesis except the one to the proved, and 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 St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 11 must show that in all human probability the act must have been done by the accused.
15. The following circumstances were pressed into service by the prosecution for establishing the guilt of the accused:-
1) The deceased Pushpa and her sister Kiran were seen by their mother PW6 Amla Devi, in company of accused while leaving her house on 7.3.04 at 5-6p.m. Accused carried the deceased on his shoulder and on protest by Kiran he slapped her.
2) The deceased(Pushpa) was lastly seen in the company of accused by PW7 (Girdhari) the Panwari on 7.3.04 at about 7.00p.m when accused purchased balloons and biscuits for her from his shop and thereafter he left with the deceased child.
3) The child Pushpa was thereafter not seen alive by any one and her deadbody was recovered in a highly decomposed St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 12 condition from Vikaspuri area from a Gutter on 20.3.04.
4) That when on 8.3.2004 the father of the deceased child (Pushpa) asked accused about the whereabouts of his daughter, accused ran away after leaving his rickshaw and chappals.
5) Accused was arrested on 25.6.04 from his native place at Bihar. He also made a disclosure statement and thereafter he made another disclosure statement Ex.PW16/D dt. 30.6.04 and got recovered the underwear of the deceased child from near the place, from where deadbody of deceased child had been recovered earlier.
6) Postmortem report corroborates the prosecution story of manual strangulation and rape.
16. After appreciation of the evidence, it has to be seen whether the prosecution has been able to prove the various circumstances beyond reasonable doubt, as enumerated above.
17. Regarding the circumstance (1), PW6 Amla Devi has deposed St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 13 that on 7th instance about three years ago in the month around Holi, accused came to their house and he remained in their house till 3- 4p.m. At about 5-6p.m he went out of the house and he took her daughters Pushpa and Kiran alongwith him. However, Kiran was sent back by him and he took Pushpa alongwith him. Her daughter Pushpa thereafter never returned. They searched their daughter Pushpa in the locality but she was not found. Then they lodged a report with the police and the deadbody of her daughter Pushpa was recovered lateron after about 15 days and she had also given a photograph of her daughter to the police.
18. The aforesaid witness was subjected to extensive cross- examination by the Ld. Amicus Curiae but nothing material could come out in her cross-examination except, the fact that the witness PW6 Amla Devi stated in her cross-examination that her statement was not recorded by the police during the investigation(s). In any case, even if this fact is taken into consideration that no statement of this witness was recorded by the police during the St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 14 investigation(s), the same is not fatal to the case of the prosecution, as the statement recorded by the police during investigation(s) can only be used for the purposes of contradicting a witness during the trial with his/her previous statement and it is not a substantive evidence in itself, as substantive evidence of the witness is his/her deposition recorded in the court and any witness who knows about the case can come and depose in the court, irrespective of the fact whether his statement had been recorded by the police in the investigation(s) or not.
19. From the cross-examination carried out by the Ld. Amicus Curiae of the aforesaid witness PW6, who is the mother of the deceased nothing has come out which could show that the aforesaid witness was not a truthful witness or was a planted one or was giving wrong version.
20. Regarding the deposition of PW4 Kumari Kiran, who was a child witness, when she was examined on 23.3.07, and therefore, court also put some preliminary questions to the said witness, to St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 15 test her competence to depose in the court before recording her deposition. After being satisfied so, her deposition was recorded. However, no oath was administered to the said witness PW4, as she was found to be below 12 years of age. She in her deposition has stated that Pushpa was her younger sister and about 3 years ago on the occasion of Holi Festival she and her sister Pushpa were playing near their jhuggi, accused whom she correctly identified in the court came there and enquired about their parents, she told him that they were not at home. After some time he came and again enquired about their parents and his reply was the same and he just asked them being Holi Festival, why they were not serving food and liquor to him. Thereafter he took her sister Pushpa with him on the pretext that he will get her balloons and biscuits. Then he carried her sister on his shoulder and went towards the shop of Panwari Girdhari and he purchased biscuits and balloons for her and carried out Pushpa away on his shoulder. When she objected, he also slapped her and he also told her that after feeding St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 16 her sister Pushpa he will get her back to their house. She came back to her house and in the evening she narrated this to her parents.
21. However, in the cross-examination PW4 Kumari Pushpa has stated that the accused was known to them as he was on visiting terms with their family and they also used to accompany accused and accused never scolded them and he used to took them away even in the presence of their father and mother. She further stated that she had no knowledge about her statement in the court and she had not told anything to the police. She further stated that it was correct that the accused had not taken away her sister in her presence. Thereafter, the said witness was again re-examined by the Ld. Public prosecutor, despite her cross-examination she struck to the stand that accused had not taken away her sister in her presence.
22. Since the deposition of PW4 Kumari Kiran has to be appreciated as a whole and not in isolation of her cross- St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 17 examination, since PW4 in her cross-examination has stated that she had no knowledge about her statement in the court and she had not told anything to the police and further the accused had not taken her sister in her presence and despite being subjected to re- examination by the Ld. Public Prosecutor, she struck to the said stand in her re-examination. Consequently, the testimony of PW4 is not acceptable. Same is discarded and it appears that she was not present at the time when the accused took away her sister Pushpa alongwith him on the date of incident. However, from the clear cut and truthful testimony of PW6, it has been established by the prosecution that the deceased Pushpa and her sister Kiran were seen by their mother PW6 Amla Devi while leaving her house on the date of incident at about 5-6p.m. The circumstance no.1 is decided accordingly.
23. Regarding the circumstance no.2, PW7 Girdhari is the most important witness of the prosecution. He in his deposition has stated that he was having a Kiosk near Sham Nagar Jhuggies and St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 18 he sells toffees etc. and other eatables and it was the day of Holi on 7.3.04 at about 7p.m, accused whom he correctly identified in the court, came to his Kiosk and one girl that was of tender age may be around 3-4 years, who was the daughter of his brother was with him and he used to call the father of the girl as Zaleem and Zaleem used to address the accused as his brother. The accused purchased balloons and biscuits for the girl and left and on the next day when he came to his shop wife of said Zaleem was weeping and she made inquiries from her whether she had seen her daughter as she was missing since yesterday and he told her that she was with the accused when he came to his kiosk and police also made inquiries from him and he had also narrated the same facts to the police on 10.3.04. Lateron on 30.6.04 when the police came with the accused he had also identified him to be the person with whom he had seen the girl and after seeing the photograph Ex.PA on the record, the aforesaid witness stated that this was the same girl who was with the accused when he visited his kiosk. St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 19
24. In the cross-examination of aforesaid witness PW7 Girdhari the identity of the deceased girl and that of accused has been clearly established, as PW7 has stated that the name of the said girl may be Pushpa. The girl happened to visit his Kiosk on earlier occasions as well, as she was residing in the jhuggies behind the Kiosk and he knew the family of girl for the last about 10 years and he also knew the accused since that very period also, as Zalim had told him that the accused was his brother. Consequently, since the PW7 Girdhari knew the family of the girl and the accused for the last about 10 years, therefore, there was no doubt regarding the identity of the accused and the deceased in the mind of the said witness PW7 which has been clearly established by his testimony in the court. Further the testimony of PW7 Girdhari, that on the next day when he came to his shop wife of said Zaleem was weeping and she made inquiries from him that whether he had seen daughter who was missing since yesterday is corroborates by the testimony of PW6 Amla Devi, who in her cross-examination has also stated St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 20 that she searched for her daughter in the jhuggies and then in the Tilak Nagar area. No other public persons except the shopkeeper had told her about seeing of the accused taking away her daughter Pushpa. The name of the said shopkeeper was Girdhari and Girdhari had informed her that the accused had left with a girl after providing her with eatables and other articles.
25. Consequently, the testimony of PW6 matches on this score, that PW7 on the next day narrated the fact that he had seen the accused in the company of the deceased Pushpa when he came to his Kiosk for buying balloons and biscuits. Nothing else has come out in the cross-examination of PW7 besides the fact that he stated in his cross-examination that he had not signed his statement and the police officials wanted to read over the statement to him but he said that he had already read it. No fault can be found in the same, as the statement U/s 161 Cr.P.C recorded by the police officials is not required to be signed by a witness and in this case the witness was cocksure about the statement given by him to the police and St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 21 he even stated that there was no need to read over the same, as he had already read the same which shows the truthfulness of the account given by the aforesaid witness.
26. Once the prosecution has been able to establish by way of positive evidence on the record that accused was lastly seen in the company of the deceased on 7.3.04 at about 7 p.m when the accused purchased balloons and biscuits for her from a shop and thereafter he had left with the deceased child, the onus shifted upon the accused by virtue of Section 106 of the Indian Evidence Act, that he should offer some sort of description as to what happened to the deceased after 7 p.m on 7.3.04, as the said fact was only within the knowledge of accused, as to what he did after said time when he was lastly seen with the deceased. It is not the case of the accused in his statement U/s 313 Cr.P.C that he had left the deceased shortly afterwards somewhere or that he had left the deceased at the house of her parents and he was seen by certain persons shortly after wards or he was seen by some St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 22 persons leaving the deceased at her house. The said fact was especially within the knowledge of the accused and the burden to prove the same was upon him.
27. It has been held in judgment State v. Mir Mohammad Omar (2000) 8 SCC 382 that " The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
28. It has also been held in judgment Sucha Singh v. State (2001)4 SCC 375 that " the Section would apply to cases where the prosecution has succeeded in proving facts for which reasonable inference can be drawn regarding the existence of St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 23 certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer an explanation which might drive the court to draw a difference inference."
29. In view of the aforesaid Section 106 of the Indian Evidence Act, the accused was under an obligation to give some sort of explanation as to what he did with the deceased as the deceased was not seen alive by anyone thereafter. In the absence of any explanation furnished by the accused either in his defence or in his statement U/s 313 Cr.P.C, and from the clear cut testimony of PW7 Girdhari as discussed above, the circumstance no.2 has been proved by the prosecution beyond any reasonable doubt, the same is decided in favour of the prosecution and against the accused.
30. Regarding the Circumstance no.3, PW6 Amla Devi has categorically stated as discussed above, that after that day when Ravinder Mishra took her daughters Pushpa and Kiran alongwith him, her daughter Kiran came back to the house, whereas Pushpa never returned and they searched for their daughter in the locality St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 24 but she was not found and they lodged a report with the police and the deadbody of the Pushpa was recovered lateron after about 15 days and they had also given the photograph of their daughter to the police. Consequently, it is apparent that after 7.3.04 no one else had seen Pushpa alive anywhere including the place where she was residing or near it. This is borne of by the testimony of PW6 her mother and also by the testimony of PW3 Ram Pati Paswan, the father of the deceased who had also stated on the same lines, as he has deposed that on 7.3.04 her daughter Pushpa was missing from their house. He searched of his own and then on next day i.e. 8.3.04 in the morning he reported the matter to P.S. Tilak Nagar, regarding the missing of his daughter and he also told the police regarding the identity and description of his daughter who was wearing a Hawai Chappal and yellow colour clothes. He has further deposed that after 10 days of recording of the FIR, it was told to him by the police that deadbody of his daughter had been recovered and he went to DDU Hospital alongwith his wife and St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 25 identified the deadbody of his dauthter Pushpa and police recorded his statement Ex.PW3/A in this regard.
31. Regarding the recovery of deadbody of deceased PW12 ASI Mange Ram has stated that on 20.3.04 he was posted at P.S. Vikas Puri and on that day he received a DD No. 7A which is Ex.PW5/A. Thereafter, he alongwith constable Satender went to the spot i.e. Kesho Pur village, DDA Park, near Ring Road and there he noticed that one deadbody of a girl was lying in a gutter/sewerage. The deceased was wearing yellow colour shirt and there were bangles of red and white colour. There were also ear rings and the deceased was also wearing one Tabiz with blue thread. The deadbody was recovered from the gutter and the crime team was also called to the spot. The deadbody was shifted to DDU Hospital mortuary and message was flashed in different police stations regarding the recovery of deadbody.
32. He also got recorded DD No. 52B Ex.PW12/A P.S. Tilak Nagar and further investigation(s) were carried out by Inspector Pratap St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 26 Singh of P.S. Tilak Nagar. Nothing has come out in the cross- examination of PW12 except the fact that he was subjected to the cross-examination on the point that no public witness was joined at the time of recovery of the deadbody,to which he stated that none of the public witness agreed to join the investigation(s). No fault can be found in the said conduct of PW12 ASI Mange Ram, as the reluctance of public witnesses these days to join investigation(s) is well known, especially in those cases where a deadbody had been recovered, public persons would be most reluctant to join investigation(s).
33. PW16 IO Inspector Pratap Singh has also deposedthat on 20.3.04 he received a DD No. 52 B regarding the deadbody of a girl in decomposed condition in DDA Park, Keshav Pur, opposite Ring Road and he verified the contents of said DD entry and description recorded in the DD entry and on verifying the records of P.S. Tilak Nagar, it was revealed that FIR No. 145/04 i.e. present FIR had already been registered at P.S. Tilak Nagar, wherein the description St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 27 of missing girl resembled with the description of the deadbody and the clothes mentioned in the DD entry.
34. He called the complainants of said case FIR No. 145/04 and asked them to reach at mortuary of DDU Hospital and in the mortuary in the morning of 21.3.04 complainant and his wife were present, where Ram Pati Paswan and Lakhan had identified the deadbody of their missing daughter. Nothing has come out in the cross-examination of PW16 regarding the recovery of the deadbody from Kesho Pur area on 20.3.04 or regarding the identity of the deceased. Since, the deadbody of the deceased was identified by her father Ram Pati Paswan, there can not be any doubt about the same, as the identity of the deadbody matched with the DD No. 18B recorded at P.S. Tilak Nagar dt. 8.3.04 wherein the detailed description/identity of the missing girl Pushpa was earlier mentioned. Consequently, from the aforesaid discussion, the prosecution has been able to prove the circumstance no.3 beyond any doubt.
St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 28
35. Regarding the circumstance No.4, the prosecution has examined PW3 Ram Pati Paswan, the father of the deceased who has stated that after his daughter Kiran told him that accused Rabinder Mishra had taken away his daughter Pushpa, on the pretext that he will give biscuits to her and he made a search for accused, as he used to pull rickshaw near Kesho Pur Mandi and he tried to inquire from accused, who met him there. On this accused made an excuse before him that he was going to get his chappals and had not returned. The rickshaw of the accused was also lying there and he did not turn up and therefore he took the rickshaw to P.S. Tilak Nagar, which was seized vide Ex.PW3/A. This fact that the accused was plying rickshaw is proved by PW8 Dilip Kumar, who has also deposed that he had given one rickshaw on rent to the accused, who after his brother left for a native place was plying the rickshaw after taking the same on hire from him. He also identified the accused in the court, as the person to whom he had given the rickshaw on hire.
St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 29
36. This conduct of accused when PW3 Ram Pati Paswan met him on the next day, that of running away on the pretext of getting his chappals is also a relevant circumstance against the accused showing the conduct of the accused immediately after the incident and the said conduct is relevant U/s 7 & 8 of the Indian Evidence Act being the fact which is occasion, cause or fact of the fact in issue i.e. murder and the same is also relevant U/s 8 of the Indian Evidence Act to show the subsequent conduct of the accused after the incident i.e. when he was lastly seen in the company of the deceased child Pushpa by PW7 Panwari Girdhari. If the accused had nothing to hide from the father of the deceased PW3 Ram Pati Paswan then there was no occasion for the accused to run away from the spot, where he met the father of the deceased on the pretext of getting his chappals, and therefore it appears that when the accused was confronted by the father of the deceased about the whereabouts of the deceased, accused became panicky and ran away from the spot leaving behind his rickshaw, which he used St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 30 to ply after taking it on hire. Consequently, present circumstance no. 4 has also been proved by the prosecution beyond any doubt. Consequently, the same is decided in favour of the prosecution and against the accused.
37. Regarding the circumstance no.5, the prosecution has examined PW13 H.C. Munesh Pal and PW14 Insp. Mahender Singh, both of them have stated that on 25.6.04 they visited village Mangol P.S. Khudawanpur District Begusarai, Bihar, acting upon secret information the accused present in the court was apprehended from the village and he was interrogated and arrested and he also made a disclosure statement Ex.PW13/C and he was produced before the concerned Magistrate and he was brought to Delhi with the permission of CJM concerned and while they were at Bihar they received an information from p.S. Tilak Nagar that deadbody of missing girl had been recovered and the accused was also produced before the Ld. M.M. Tis Hazari Court, and police remand was obtained and during the investigation(s) by Inspector St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 31 Partap Singh the accused made another disclosure statement Ex.PW13/D and accused got affected the recovery of one panty of victim from inside the DDA Park near Keshavpur village, near ring road adjacent to the corner of Keshavpur Water Supply and Sewerage Treatment Plant. The said panty was also seized vide memo Ex.PW3/D.
38. PW16 IO Inspector Partap Singh has also corroborated the testimony of PW13 & PW14 regarding the recovery of one panty of the deceased from the gutter nearby the spot from where the deadbody of the deceased was found pursuant to his disclosure statement made before him Ex.PW13/D. The accused admitted in his statement U/s 313 Cr.P.C that he was apprehended from his village but he stated that he never made any disclosure statement.
39. The recovery of panty of the child at the instance of accused on 30.6.04 pursuant to his disclosure statement Ex.PW13/D does not inspire any confidence, as the said recovery had been affected from the same placefrom where earlier the deadbody of the deceased St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 32 had been recovered on 20.3.04. As per the testimony of PW13 H.C.Munesh Pal , PW14 Inspector Mahender Singh and PW16 Inspector Partap Singh, the said panty was recovered from near the gutter near the spot from where the deadbody was earlier found. As per the deposition of aforesaid witnesses, the said panty was not found concealed underneath the earth or any tree or like place. In any case, the recovery of said panty almost after 4 months of the incident from the place, where earlier deadbody of the deceased had been recovered does not appear to inspire any confidence, as at the time of recovery of deadbody, the police would have thoroughly scanned the place of said recovery and they would have thoroughly searched for all the vital clues pertaining to the present case in the vicinity of the area, from where the said panty was recovered and it was not possible, thereafter the said panty was found lying nearby the same place which escaped the notice of the police officials on 20.3.04.
40. Further as per FSL report nothing has come out on the said St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 33 panty to connect the accused with the same. Even otherwise, as per the testimony(s) of PW13, PW14 and PW16 no public witness was joined at the time of said recovery of panty from the said place, which also makes said recovery doubtful. In these circumstances, the said recovery of panty of the deceased child pursuant to the disclosure statement of the accused on 30.6.04 has not been proved by the prosecution, but the prosecution has been able to prove that accused was arrested on 25.6.04 from his native place at Bihar. The aforesaid circumstance no.(5) is decided accordingly.
41. Regarding the circumstance no.6, the prosecution has examined PW18 Dr. B.N. Mishra, Autopsy Surgeon from DDU Hospital, who has deposed that after conducting postmortem of the deceased Pushpa aged 6 years, female, he found the following injuries on her body:
1. Whole body was highly putrified, the facial bones (maxilla, mendibles, frontal bone, eye orbits found exposed due to advance stage of decomposition and maggots activity present, St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 34 big missing of upper incisor teeth (four).
2. No ligature mark was present over the posterior part of the neck. However, the anterior part of the neck was destroyed by maggots.
3. Right greater cornua of the hyoid bone was fractured (suggestive of strangulation-manual strangulation).
4. The injuries into the soft tissue of neck could not be explored due to destruction by setup of putrefaction and maggots activity.
5. A haematoma composed of about 3-4 ml of blood detected adjacent to posterior commissure of vagina, rest of vaginal part is destroyed by putrefaction and vaginal canal occupied by maggots. Regarding rupture of hymen and other associated injuries could not be possible due to destruction of area by maggots and putrefaction.
As per internal examination:-
St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 35 The hyoid bone of the neck was found fractured. Rest of the part, regarding specific injury could not be explored/detected due to setup of high decomposition and destruction by maggots. He also proved his postmortem report as Ex.PW18/A. However in response to Court Question: Whether there was any finding of sexual assault prior to death on the body of deceased?
He stated that he can not say whether there was any finding of sexual intercourse except that one blood clot was present in the vaginal canal, but he cannot say conclusively, whether there was any sexual intercourse, which took place prior to the death in the present case.
42. From the postmortem report, it is apparent that when the postmortem on the body of deceased was performed by Dr. B.N. Mishra, it was highly putrefied due to maggots activity and he also found that right greater cornua of hyoid bone was fractured. The very fact that hyoid bone which is found in the neck was fractured is suggestive of manual strangulation, as in case of small children the St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 36 hyoid bone is very flexible, therefore it is not easily fractured/broken except when great amount of force is imparted upon the neck.
43. The aforesaid doctor has also opined in his postmortem report that the cause of death in this case was due to manual strangulation. Time since death as per the postmortem report has been opined to be two weeks prior to the postmortem examination, which also matches with the prosecution story, when the deceased Pushpa was lastly seen with the accused on 7.3.04 at about 7p.m. Therefore, the postmortem report also clearly corroborates the prosecution story and excludes the hypothesis that any other person, other than the present accused may have caused the death of the deceased child Pushpa.
44. Regarding the charge U/s 363 IPC, from the aforesaid prosecution evidence more specifically from the testimony of PW3 Ram Pati Paswan, PW6 Amla Devi and PW7 Girdhari, the prosecution has been able to prove that the accused had taken the deceased Pushpa after enticing her with balloons and biscuits from St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 37 the lawful custody of her guardian PW3 and PW6 without their consent. Consequently, the prosecution has been able to make out a case U/s 363 IPC.
45. Regarding the offence U/s 366 & 376 IPC, from the clear cut testimony of Autopsy Surgeon Dr. B.N. Mishra, who in his examination in chief in reply to court question has stated that he can not say, whether there was any finding of sexual intercourse except that one blood clot was present in the vaginal canal, but he can not say conclusively, whether there was any sexual intercourse which took place prior to death in the present case. In view of the said categorical deposition of Autopsy Surgeon PW18 Dr. B.N. Mishra, the prosecution has failed to prove that there was any sexual assault on the body of deceased Pushpa by accused prior to death and there no other evidence in this regard was lead by the prosecution. Consequently, prosecution has failed to make out a case U/s 366/376 IPC.
46. Regarding the offence U/s 201 IPC, from the aforesaid St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 38 overwhelming evidence lead by the prosecution, especially by the circumstance No. 1,2,3&4, the only inference which can be drawn from the mass of said evidence is that accused after committing the offence of killing Pushpa had caused, disappearance of the body of the deceased by throwing it into Gutter, so as to screen himself from legal punishment and therefore accused had caused disappearance of the deadbody of the deceased after killing her with the intention to screen himself from the said legal punishment for the offence so committed by him. Consequently, the prosecution has been able to make out a case U/s 201 IPC as well.
47. Now, it has to be seen whether from the aforesaid circumstance(s), which have been established by the prosecution beyond any sort of doubt, whether the circumstance(s) so established unerringly points towards the guilt of the accused and whether the circumstances taken collectively are incapable of explanation of any reasonable hypothesis, save that of guilt of the accused and whether the circumstances proved by the prosecution St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 39 form a chain so complete, so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
48. From the aforesaid detailed discussion, the prosecution has been able to prove the circumstance(s) no. 2,3,4 &6 against the accused beyond any sort of doubt. Though, the prosecution has failed to prove the circumstance no.5 against the accused, as the prosecution has failed to prove the recovery of underwear of the deceased child pursuant to the disclosure statement of the accused recorded on 30.6.04 and the prosecution has also failed to prove the circumstance no.1 fully i.e when the accused was carrying the deceased on his shoulder on protest by Kiran he slapped her, but as discussed above the same is not material to the outcome of the present case, as even otherwise chain of other circumstantial evidence discussed above and failure of the accused to give any plausible explanation, as to where and how he had left the St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 40 company of the deceased Pushpa, after she was lastly seen together with him by PW7 Girdhari on the fateful day i.e. on 7.3.04. cumulatively proves beyond any sort of reasonable doubt, the culpability of the accused in the present case.
49. Applying the principle laid down in the judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622(Supra), and also the judgment of Hon'ble Supreme Court in Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091=AIR 1952 SC 343(Supra), I am of the considered view, that it has been proved beyond any reasonable doubt by the prosecution, by unimpeachable evidence by aforesaid chain of circumstances as discussed above, which is so complete, which only leads to the conclusion, that it was only the accused who had committed the murder of deceased Pushpa and no one else and the circumstantial evidence lead on the record, is absolutely inconsistent and incompatible with the innocence of the accused and there is no circumstance brought on record by the accused suggesting his St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 41 innocence or the possibility that any one else might have committed the aforesaid ghastly act. Therefore, the circumstance(s) proved by the prosecution form a chain so complete which leads only to the conclusion, regarding the culpability of the accused Rabinder Mishra regarding the murder of the deceased Pushpa.
50. The net result of the above discussion, is that the accused Rabinder Mishra @ Rabin Mishra stands convicted under Section(s) 302/363/201 IPC. Now to come up for hearing on point of sentence on 15.07.2010.
Announced in the open court (Sanjeev Aggarwal)
On dt. 12.07.2010 Addl. Sessions Judge
Rohini Courts: Delhi.
St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 42 IN THE COURT OF SH. SANJEEV AGGARWAL ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI SC No. 257/09 FIR No.145/04 PS Tilak Nagar U/s 363/302/201 IPC ID No. 02404R6286002004 State Vs. Rabinder Mishra @ Rabin Mishra, @ Ramin Mishra S/o Late Raj Pati Mishra, R/o Village Meghol, PS Khodarand Pur, Distt. Begu Sarai, Bihar.
ORDER ON THE POINT OF SENTENCE 15.7.10 Present: Sh. G.S. Guraya, Ld. Addl.PP for the state.
Convict produced from J.C with Amicus Curiae Ms. Bindiya Malhotra.
It is submitted by Ld. Amicus Curiae, that the convict is having clean antecedents and he is not involved in any previous case and he is aged around 46 years of age and he has old and ailing mother and father to look after, and he belongs to a very poor family St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 43 and therefore she prays that a lenient view may be taken against him.
On the other hand Sh. G.S. Guraya, Ld. Addl. PP for the state submits that strict punishment should be awarded to this convict, as he had killed a minor child in a most inhuman manner, by strangulating her to death after kidnapping her, and he further submits that a message should go to the society at large, that these type of crimes would not be allowed to go unpunished in a light way. He further submits that convict had killed the child in a premeditated and cruel manner and therefore, strict punishment should be awarded to him. He prays that capital punishment should be awarded to the convict.
I have gone through the rival contentions, no doubt the convict had caused the death of deceased Pushpa, a child aged around 6 years by strangulating her, after enticing her with biscuits and balloons in a most diabolical manner, which shakes the conscious of this court. However, the case of the convict does not fall in the category of rarest of rare cases, as per various judgments of the St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar 44 Hon'ble Apex Court laid down from time to time. Consequently, I am of the considered opinion that the interest of justice shall be met, if the convict is sentenced to rigorous imprisonment for life and is also sentenced to pay a fine of Rs. 2,000/-, U/s 302 IPC, in default of payment of fine, the convict shall further undergo SI for two months. The convict is further sentenced to rigorous punishment for three years and a fine of Rs. 1,000/-, U/s 363 IPC, in default of payment of fine, the convict shall further undergo SI for one months. He is further sentenced to rigorous punishment for three years and a fine of Rs. 1,000/-, U/s 201 IPC, in default of payment of fine, the convict shall further undergo SI for one months. All the sentences to run concurrently. Copy of the judgment and order on the point of sentence be provided to the convict free of cost. Ld. Amicus-curiae is discharged from this case with the words of appreciation for the assistance rendered by her. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
on dt. 15.07.2010 Addl. Sessions Judge:
Rohini Courts: Delhi.
St. Vs. Rabinder Mishra FIR No. 145/04 P.S. Tilak Nagar