Delhi District Court
It Has Been Held In Ramesh Bhai & Anr. vs . State Of on 12 July, 2010
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE03, NORTH, DELHI.
FIR No.: 286/2002
PS: Subzi Mandi
U/s: 363/302/376/201/506 IPC
S.C. No.: 41/2010
Case ID No. 02401R0393842005
In the matter of:
State
Vs.
Sheeshpal
S/o Late Sh. Balwant
R/o House no. 71/272, Old Chandrawal
Mother Dairy Road, Majnu Ka Tila,
Civil Lines, Delhi
Date of receiving in Sessions Court : 3.6.2005
Arguments Heard : 10.5.2010, 24.5.2010.
1.6.2010, 9.7.2010
Date of Judgement : 12.7.2010
JUDGEMENT
Case Of Prosecution:
1. On 25.10.2002, the complainant Rajbir S/o Swaraj came to the police station Subzi Mandi and gave his complaint that he is a rag picker and residing at E103, Deepak Colony, Dilshad Garden, Delhi 95 with his family. On 3.10.2002 accused Sheeshpal came to his house at about 6.15 P.M. and informed him that his daughter Laxmi who had accompanied the S.C. No.: 41/2010 1/61 wife of accused Sheeshpal to Hindu Rao Hospital is missing. As per the complainant, thereafter he and his family members tried to search Laxmi here and there but she could not be found. After giving description of his daughter, the complainant further informed the police that accused Sheeshpal had also lodged a missing report of Laxmi in Subzi Mandi Police Station on 3.10.2002 and now he has come to know through some persons that Sheeshpal is a man of bad moral character and he has every suspicion that accused Sheeshpal has taken away his daughter somewhere by enticing her . On the complaint of complainant, the case was registered against accused Sheeshpal and investigation of the case was taken over by SI Parsuram. During the investigation of the case, SI Parshuram interrogated accused Sheeshpal and tried his best to search the missing girl Laxmi. After the transfer of SI Parshuram, further investigation of the case was taken over by SI Raman Pratap Singh. He also interrogated the accused and tried to search the missing girl. On 27.3.2003, the polygraph test of accused was got conducted in FSL, Malviya Nagar and the result was received on 7.4.2003. In the meanwhile, on 7.4.2003, on the basis of the order of Hon'ble High Court in Writ Petition no. 97/03 , it was ordered to transfer the case to Crime Branch. Accordingly, on 24.4.2003, the file was transferred to Anti Kidnapping Section, Crime Branch and further investigation was done by SI Shalender Kumar, SI Karan Singh and SI Daya Chand. The Polygraph Test of accused revealed "Deceptive Responses" and therefore SI Daya Chand did the investigation from different angles. The prior antecedents of accused was verified, his conduct and behaviour as well as his reputation in the area S.C. No.: 41/2010 2/61 was also verified. During the course of investigation, it was revealed that accused Sheeshpal has connections with many ladies and he is fond of ladies. The activities of accused Sheeshpal were observed and inquiries were made from his neighbours and their statements were also recorded. On 8.2.2005, SI Daya Chand made detailed inquiriy from one Asha who used to live with accused Sheeshpal as his wife but now has left him and shifted to Ambala since long. Her statement was also recorded. On the basis of her statement, interrogation was made from one Shivraj Singh @ Master, an acquaintance of accused Sheeshpal and his statement was also recorded.
From the statement of Asha and Shivraj Singh, it was revealed that accused Sheeshpal after killing the girl Laxmi had cut her body into pieces and threw the same into Yamuna River. After collecting sufficient evidence, on 13.2.2005 , accused Sheeshpal was arrested for the offence U/s 363/302/376/201 IPC and his disclosure statement was also recorded. From his house, one Tirpal, a wooden ladder, a scooter, 329 blank Identity Cards of MCD and some stamps were recovered. During investigation, every effort was made to recover the dead body of deceased from Yamuna River but it could not be found. Thereafter statement of witnesses were recorded, site of incident was inspected, local inquiry was made and scaled site plan was prepared. Exhibits of the case were sent to FSL for expert opinion and after completion of investigation, challan was filed in the court.
2. Since the offence U/s 376/302 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
S.C. No.: 41/2010 3/61 Charge Against The Accused:
3. Prima facie case under section 363/376/302/201 IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 37 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal Witnesses:
6. PW7 is Smt. Prakasho who stated that her daughter Asha was married to one Rajan in Ambala who belonged to Lucknow, U.P. But in the year 2001, Asha left Ambala without giving any information to anyone. Thereafter in the year 2004, she came to know that Asha is living in Delhi with accused Sheeshpal and during her living with accused, one girl was born in Delhi. She further stated that in the year 2004, Asha visited Ambala to meet her children and she never disclosed anything about accused and his behaviour to her.
7. PW8 is D.K. Sharma, Medical Record Clerk from Hindu Rao Hospital who brought the summoned record and stated that as per the record, on 12.9.2002, patient Asha W/o Sheeshpal was admitted in the hospital for delivery and she delivered a child on the same day and was discharged from hospital on 19.9.2002. He also proved the photocopy of discharge slip as Ex. S.C. No.: 41/2010 4/61 PW8/A.
8. PW14 is SI Mahesh Kumar, Drafts Man from Crime Branch who took rough notes and measurements of the spot and on the basis of those documents, prepared scaled site plan and proved the same as Ex. PW14/A.
9. PW 16 is Sh. Ashraf Ali, SDO from Minto Road Telephone Exchange who proved the factum of installation of one PCO near Inquiry Counter of Hindu Rao Hospital in the year 2002.
10. PW17 is Head Constable Naipal Singh who was posted as MHC (M) at P.S. Subzi Mandi on 13.2.2005. He proved the entries regarding deposition of case property in malkhana vide Ex. PW17/A and Ex. PW17/B.
11. PW19 is SI Krishan Chand who registered the FIR and proved the same as Ex. PW19/A.
12. PW20 is Head Constable Yashpal from Crime Branch who took the sealed pullanda from P.S. Subzi Mandi and deposited the same in FSL Rohini vide R.C. No. 156/21. He stated that till the sealed pullanda remained in his possession, nobody tampered with the same.
13. PW21 is Head Constable Hans Raj, Photographer from Crime Branch who on the instructions of Inspector Mahesh Tolia, videographed interior of the house no. N71/272 for about 20 minutes and handed over the video cassette to Inspector Mahesh Tolia.
14. PW22 is Head Constable Joginder Singh who proved the DD no.17 A dated 3.10.2002 regarding missing of deceased Laxmi as Ex. PW 22/A. He stated that the missing report of deceased Laxmi was also entered S.C. No.: 41/2010 5/61 in missing persons register and proved the same as Ex. PW22/B.
15. PW23 is Head Constable Mahender Singh who proved the copy of FIR No. 230/92 P.S. Civil Lines, U/s 302/201 IPC in which accused Sheeshpal was an accused as Ex. PW23/A.
16. PW24 is SI Raman Pratap who stated that on 10.02.2003 the case filed was marked to him for further investigation. During investigation he got pasted hue and cry notice and got the wireless message flashed and got published in newspaper the notice regarding missing of prosecutrix. He also interrogated the accused and took him to FSL Malviya Nagar and got his polygraph test conducted there . He further proved the report of polygraph test as Ex. PW 24/A.
17. PW 25 is SI Parshu Ram, who recorded the statement of complainant Rajbir on 25/10/2010 and proved the same Ex. PW 10/A. He stated that he searched for the missing girl as well as accused but none was found and thereafter he was transferred from Police station Subzi Mandi and file was handed over to MHC(R).
18. PW 26 is Constable A. Kumar Photographer from Crime Branch who took the photographs of H. No. 71/272, Old Chandraval, Madar Dairy Road, Majnu ka Tila and proved the same as Ex. PW 26/A - 1 to Ex. PW 26/A - 14 and negatives of the same as Ex. PW 26/A - 15 to PW 26/A - 42.
19. PW 27 is Head Constable Vijay Singh MHC(R) from PS Gokul Puri who proved the copy of FIR No. 207/95, PS Gokul Puri U/s 27/54/59/ Arms Act registered against accused Sheeshpal as Ex. PW 27/A.
20. PW 28 is Sh. Azad Singh, UDC, Care Taker Branch, Town Hall, S.C. No.: 41/2010 6/61 MCD who stated that he is entrusted with the duty of issuing I Cards to third and fourth class employees of MCD and the I Cards collectively Ex. P5 are forged I Cards because there is no serial no. on these I cards and the print of these I Cards is also different from I cards which are originally issued.
21. PW 29 is SI Karan Singh from Security, PM Cell. He stated that on 9/2/2004, the investigation of this case was assigned to him and he had joined the complainant several times and also tried to trace the missing girl Laxmi at different places including Bombay, Nagpur etc. He also got hue and cry notice issued and published and on 8/7/2004 he was transferred from Anti Kidnapping Section and file was handed over to Reader of ACP/AKS .
22. PW32 is Constable Sat Pal Singh who took the copy of PCR form pertaining to present case from PCR Record Room, Mangolpuri and proved the same as Mark XX. He further stated that he presented the same before IO of the case. IO took the same into possession vide seizure memo Ex. PW32/A.
23. PW33 is Head Constable Vijay Pal who was posted in Anti Kidnapping Section, Dev Nagar, Delhi on 27.4.2002 and took the video cassette and some photographs pertaining to the present case from dealing clerk of PTS, Malviya Nagar and handed over the same to Inspector Mahesh Tholia. He further stated that so long the sealed parcels remained in his custody, same were not tampered with.
24. PW 34 is Head Constable Ram Niwas who received the telephonic call from one Sheeshram on 3.10.2002 at about 2.49 P.M. regarding the missing of his daughter Laxmi . He filled up the said S.C. No.: 41/2010 7/61 information in call form and proved the copy of call form as Ex. PW34/A.
25. PW 37 is Dr. S.K. Lahiri, Consultant, Lie Detection FSL, Malviya Nagar who conducted polygraph examination of accused and proved the report as Ex. PW24/A. Medical Witnesses:
26. PW 13 is Dr. Akash Jhanjee, Junior Specialist Forensic Medicine, Subzi Mandi Mortuary, Delhi who examined the accused for expert opinion and potency test. He proved the MLC as Ex. PW13/A. Material Witness:
27. PW1 is Smt. Prem Devi @ Premo. She stated that her husband is a truck driver. Accused Shish pal and Asha used to reside in their neighbourhood as husband and wife and one daughter was born to them. Asha used to sit with her with her daughter but she never told her anything about the character of accused or about his daughter Laxmi who was killed by accused Sheeshpal. She further stated that Asha had also not told her anything about the previous wife of accused Sheeshpal or about his one issue who had been killed by the accused. She further stated that she does not know anything about this case.
28. PW2 is Mohina who stated that she know accused Sheeshpal present in the court as he was residing in her neighbourhood. He was working in MCD. His conduct and character was not good. He used to bring new ladies to his house daily. In the year 2002, he brought one girl namely Laxmi to his house. It was the month of September 2002 at about 10/10.30 p.m. she heard the cries of a girl coming out of the house of accused. S.C. No.: 41/2010 8/61 Thereafter that girl was not seen again and the accused lodged a missing report in respect of that girl. She further stated that at that time, one Asha was living with accused as his wife. In the morning, she asked Asha as to what happened in the night on which she started weeping and kept mum. Thereafter, after about 7/8 months, when accused started beating Asha and threatened to kill her, she came to her and narrated the entire incident to her and told that accused had killed Laxmi and after cutting her body into pieces, he threw the same in Yamuna river. The accused had also committed murder of his previous wife and child. The witness further stated that Asha had also shown her the marks of beatings by the accused on her back and she had also told her that accused had threatened her to kill in case she narrates this incident to anybody else. She stated that Asha used to share her feelings of sorrow with her being her neighbour. The witness also identified the photographs of deceased girl Laxmi in the court.
29. PW3 is Munni, mother of deceased Laxmi who stated that in the year 2002, she alongwith her husband and children were residing at Dlishad Garden, Delhi. She and her husband used to collect garbage. During that period, accused present in the court came to their house who was having some forms and asked them to fill up the forms for getting loan to which they refused but somehow he enticed her husband to fill up the forms and her husband filled up the forms. Thereafter accused continued visiting their house and told them that their loan has been sanctioned but they have to pay Rs. 20,000/ for disbursing the loan amount on which they paid Rs. 20,000/ to the accused. On 28.9.2002, accused came to their house in their absence S.C. No.: 41/2010 9/61 and told his son that "Tumhari Mummy Ko Bijli ne Pakad liya Hai" and asked him to sent her daugher Laxmi with him. Her son refused but accused on this pretext took her daughter from home. When they returned home after finishing their job, she asked her son as to where Laxmi has gone to which her son replied that Laxmi has been taken away by accused Sheesh Pal. As they did not know the address of the house of accused, so they enquired from one person who told them that accused Sheeshpal is serving in MCD and he can show the accused to them from a distance as he did not want to come in front of accused. Thereafter they met the accused and asked about their daughter to which accused replied that his wife has given birth to a child and so he had brought Laxmi from their house . She further stated that accused asked them to accompany him to his house and accused took them to his house where nobody was present and the house was locked. There he told them that Laxmi has gone with his wife to Hindu Rao Hospital for getting some medicine. Thereafter accused opened the lock of his house and made them sit in the house. They waited there for sometime and thereafter accused asked them to wait outside as he would bring Laxmi and his wife with children from the hospital. They waited outside the house of accused till 5 p.m. but accused did not return. Thereafter they came back to their house and for three days, they kept visiting the house of accused again and again but nobody was found there and the house was found locked. The neighbours of the accused asked her as to why she is visiting the house of accused again and again and they also told her that accused after kidnapping the girls, used to rape them and murder them and used to throw their bodies S.C. No.: 41/2010 10/61 in the Yamuna river after cutting them into pieces. Thereafter they went to the house of brother of accused Sheeshpal namely Ompal and asked him to help them in getting their daughter back from the accused on which Ompal told them that they should not approach him for this as Sheeshpal is a professional murderer and he has already killed about 28 girls and have thrown their body in Yamuna and he had also killed his legally wedded wife and children. This witness further stated that they were also informed by the persons of locality that accused used to bring ladies on the pretext of getting them employed and for securing loans from Government and used to rape them and kill them. Later on they came to know that accused very cleverly himself had lodged a complaint to the police at 100 number from Hindu Rao Hospital that Laxmi who was his daughter is missing from Hindu Rao Hospital. Thereafter they went to P.S. Seema Puri but police officials did not entertain them. Then they went to P.S. Subzi Mandi but police of P.S. Subzi Mandi also did not listen them and after their approach to Hon'ble High Court, the Crime Branch investigated the matter and accused was arrested by the Crime Branch after about 3 years of the occurrence. The accused was interrogated in their presence and he confessed his guilt. Accused also abused her and threatened her that he will also cut her into pieces and would throw her in the Yamuna river in front of the police.
30. PW 4 is Sonu, brother of deceased Laxmi. He stated that on 28.9.2002 he was present at home as he was not feeling well. On that day, Accused Sheeshpal came to his house and took his sister Laxmi with him on the pretext that his wife has delivered a child and she needs some care. He S.C. No.: 41/2010 11/61 refused the accused to send his sister with him but on his insistence, he sent his sister with accused. In the evening when his parents came back from their work and enquired about Laxmi, he narrated the entire incident to them. Thereafter his parents went to the house of accused to enquire about his sister but none was found in the house. After few days, accused came to their house and told them that Laxmi is missing from Hindu Rao Hospital. He further stated that accused had also lodged a missing report to show his bonafide at Police Station of Hindu Rao Hospital.
31. PW5 is Asha, wife of the accused who stated that she originally belongs to Ambala. Accused is her husband. She was married with the accused Sheeshpal in a temple in year 2001. She stated that prior to her marriage with accused, she was already married with one Rajan and had three children out of that wedlock. She stated that those children were living with their father. She further stated that she did not obtain divorce from her previous husband. Since her first husband was not keeping her well and was beating her after taking liquor hence she left her and came to Delhi by bus. Thereafter she took a TSR and went to Palam to her sister's house but she could not trace the house of her sister. She asked the driver of TSR to take her to some place where she can spend night and the said driver took her to the house of accused Sheeshpal and she stayed in his house. In the morning she wished to go to her sister's house and accused gave her Rs. 100/ and she went to Palam Village where her sister was residing. She found them and stayed with them for five/seven months and during this period, accused Sheeshpal kept on visiting her sister's house to meet her. She further stated S.C. No.: 41/2010 12/61 that when she stayed in the house of accused Sheeshpal, Munni was already there in the house of Shispal. She enquired from the accused about Munni and accused told her that Munni is his sister in law and she visits his house off and on. Wife of accused Sheeshpal had already expired as told to her by accused. She further stated that after her marriage with accused, Munni and her family members used to visit his house and Munni used to ask her to leave the house of accused Sheeshpal as she wanted to live with him being his sister in law. She gave birth to a female child in the ninth month of September 2002 at Hindu Rao Hospital. It was a ceasarian delivery. Deceased Laxmi came to her for looking after her during those days. Munni left her daughter Laxmi after 10/15 days of her delivery to her house. Accused Sheeshpal took her and Laxmi to Hindu Rao Hospital as she was having problem regarding her stitches. She stated that Laxmi was a tall girl but she was minor and from the hospital, she was found missing and her husband had lodged a report regarding missing of Laxmi. Her husband had also called at 100 number at P.S. Subzi Mandi. After the incident of missing of Laxmi, she went to her parent's house without disclosing this fact to her husband and remained outside from her house for more than one year. Her husband with one police official had gone to the house of Munni to enquire about Laxmi. Next day, mother of Laxmi came to her house and started shouting that where they have sent her daughter or whether they have sold her to someone. Thereafter she went to her parent's house after one or two months of the incident of missing of Laxmi as she came to know that her husband has started living with his friend Master and another lady namely S.C. No.: 41/2010 13/61 Reena. She further stated that once her daughter from her previous husband namely Kajal had come to the residence at Majnu Ka Tila as she had brought her with her for few days and at that time Kajal was 6/7 years of age.
32. PW6 is Sh. Raman Kumar, LDC from General Branch, MCD, Shahdara , North Zone, Delhi who stated that in the year 2005, he was posted as LDC in Shahdara North Zone in MCD and was on duty under the Assistant Commissioner of MCD, North Zone, as a diary dispatch clerk. During the official hours, IO of the case came at his office and he showed some impressions of the stamps of the Assistant Commissioner, Shahdara, North Zone and Licensing Inspector, Shahdara, North Zone. He told the IO that the impressions look like that of official stamps but none of the official stamps which remained in his possession were misplaced or stolen. He also identified accused Sheeshpal as his colleague.
33. PW9 is Suraj Bhan who stated that in the year 2002 near Diwali festival, he was sitting in front of house of Rajbir and playing cards. At about 4/5 p.m. accused came on a motorcycle and went inside the house of Rajbir. Thereafter accused brought the daughter of Rajbir and took her away on motorcycle.
34. PW10 is Rajbir, Father of deceased Laxmi who stated that on 28.9.2002, her daughter was taken away by the accused from his house. At that time, he was not present in the house. Thereafter he alongwith his wife and 45 other persons went to the office of accused in Shahdara as he did not know his residence. Accused was present there and he enquired him about S.C. No.: 41/2010 14/61 his daughter. On this accused became violent . PCR Van came and they alongwith accused were taken to Police Station Seelampur from where they were released after 2/3 hours. Thereafter they approached P.S. Seema Puri but they were directed to approach P.S. Subzi Mandi. Police at P.S. Subzi Mandi also did not record his complaint and after so many days, their complaint was got recorded by the police on the intervention of Hon'ble High Court. The witness further stated that once accused took them to Aligarh where they were beaten by Gundas and they escaped with difficulty.
35. PW15 is Shivraj Singh who stated that he is running a factory of stitching and he know accused Sheeshpal since 2002. Accused Sheeshpal was working as Sweeper in MCD. In 2002, accused came at his factory for making jacket. on 1.10.2002 he went to the house of accused for taking payment of Jacket delivered by him as he was running a factory of stitching. There he met Asha, the wife of accused. When he went at the house of accused for taking money then, accused was in latrin which was situated outside the house. At that time, Asha told him that one Laxmi was missing from the house since last night. In the house of accused, one wooden stair was kept. Asha told him that something was kept in the roof of the house. So he went on the roof while using the said wooden stairs and there he saw a black colour polythene bag and he felt some piece of flesh by touching of said polythene. Thereafter he returned back from the roof. Asha also told him that she had heard some noises in the previous night from the adjacent room of said house. At that time, Asha was afraid. In the meanwhile, accused returned back from the latrin and he threatened him and Asha that if S.C. No.: 41/2010 15/61 they disclosed anything to anybody, he will kill them. Thereafter he returned back to his house and did not receive any information regarding the pieces of flash in polythene after that. He also stated that before arrival of Sheeshpal from Latrine, he had also checked the bed of accused after opening the same but nothing was found.He further stated that he know the fact that accused Sheeshpal had killed his wife earlier and after killing his wife, accused had kept the dead body in a box. Accused Sheeshpal was fond of woman and he had illicit relations with the women and in the area of Chandrawal, local residents were scared about the presence of accused as he is a very dangerous man.
36. PW 18 is ASI Rajbir Singh who was present with the IO and other police officials during the investigation of the case. In his presence accused was arrested, his disclosure statement was recorded and case property was also recovered. He further identified the case property in the court.
37. PW 30 is Inspector Ram Avtar who alongwith Inspector Mahesh Toliya, SI Dayal Cahand, ASI Rajbir and other police staff apprehended and arrested the accused. Accused was interrogated in his presence and his disclosure statement was recorded. He further stated that in pursuance of disclosure statement, accused pointed out his house bearing 71/272, Old Chandraval and got recovered one wooden made staircase, one black tripal and one scooter which was seized vide seizure memo. The IO conducted search of the room of accused from where 7 rubber stamps and 329 blank MCD identity cards were recovered out of which 2 ID Cards were kept as S.C. No.: 41/2010 16/61 sample. He further identified the case property in the court .
38. PW31 is SI Shailender Tomar from Crime Branch, Delhi Police who stated that on 24.4.2003 he was posted as SI in Anti Kidnapping Section, Crime Branch. On that day, he was assigned the investigation of this case and accordingly he collected the case file from Reader of ACP. He contacted the complainant and examined him. The complainant had suspected accused Sheeshpal. He interrogated the accused and on the basis of suspicion shown by the complainant, conducted raids at Loni, Ghaziabad , Bhagpat and Mumbai and some other places but no clue qua the missing girl could come out. He also got published the advertisement in National Daily regarding missing of deceased Laxmi and got flashed WT message at All India Basis in this regard in addition to Hue and Cry notice. But no fruitful result could come out. Thereafter he was transferred from Anti Kidnapping Section and accordingly he deposited the case file to Reader of ACP.
39. PW 35 is SI Daya Chand who was assigned the investigation of this case on 12.8.2004. He interrogated the accused and made detailed inquiries from the neighbours of accused. On 13.2.2005, the investigation of the case was assigned to Inspector Mahesh Kumar Tholia. Thereafter, he alongwith IO of the case arrested the accused. Disclosure statement of the accused was recorded and recovered case property was also seized vide seizure memo. He also identified the accused as well as recovered case property in the court.
40. PW36 is Inspector Mahesh Tolia, IO of the case. He arrested the accused, recorded his disclosure statement, seized the recovered case S.C. No.: 41/2010 17/61 property vide seizure memo and after completion of investigation, filed the challan in the court. He also identified the accused and recovered case property in the court.
41. Statement of accused U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he has been falsely implicated in this case. He never kidnapped and killed Laxmi. He was picked up from his house on the pretext of making some inquiry on 10.02.2005 and was illegally detained upto 13.02.2005. He further stated that as the case was not being solved by the police officials and there was pressure from the public as well as from the media and from higher authorities to solve the case, therefore the police officials in hurry picked him up from his house and without collecting any evidence against him falsely booked him in this case. Nothing was recovered from his or at his instance. PW Munni and her husband Rajbir are having previous enmity with him with regard to money transaction as they had taken a loan of Rs. 50,000/ from him and in order to grab this money, they used to threaten him to implicate him in the case and other witnesses are also interested witnesses.
42. Accused further chose to lead evidence in defence and examined five witnesses in his defence.
43. DW1 is Sh. Mohd. Illiyas who stated that he know accused Shish Pal for the last about 14/15 years. Accused used to work in the MCD Office and he met him first time in the MCD Office in connection with his personal MCD work. He also know Munni Devi and her husband Rajbir who used to reside at Jhuggi Camp, Dilshad Garden. He Know that Munni Devi had S.C. No.: 41/2010 18/61 taken a loan of Rs. 50,000/ from accused and Munni Devi and the husband of Munni Devi used to quarrel with accused as and when accused demanded his money back from them. He had seen Munni Devi and Rajbir quarreling and shouting at Sheeshpal at the gate of MCD office and they were telling the accused that they would not return his money. Munni Devi had also requested him to make the accused Sheeshpal understand that they are unable to return his money. He further stated that accused Sheeshpal is bearing a good moral character and he has never heard anything against accused Sheeshpal. Munni Devi and her husband has implicated the accused in the case of kidnapping their daughter falsely, so that they can avoid making payment and grab the loan amount.
44. DW2 is Sh. Manohar Lal who also stated that accused had given a loan of Rs.50,000/ to Munni Devi and Rajbir during the year 2001 and during the year 2002, in his presence at the house of Shispal, some verbal altercation took place between accused and Munni Devi and her husband regarding loan money and in that altercation, they had threatened the accused to implicate him in a false missing case of their daughter.
45. DW 3 is Inspector K.S. Rawat, SHO P.S. SeemaPuri, Delhi who proved the complaint given by Munni Devi W/o Rajbir R/o E13, Deepak Colony, Dilshad Garden, Delhi against Munna, Ramesh and Smt. Parmeshwari to SHO, P.S. Seema Puri on 6.8.2002 as Ex. DW3/1.
46. DW 4 is Girish Kumar , Assistant Sanitary Inspector, MCD Office, Shahdara, North Zone who stated that as per record, one Sheeshpal S/o Balwant was Safai Karamchari in MCD Office. On 3.10.2002, his duty S.C. No.: 41/2010 19/61 as Safai Karamchari was at the site of Jyoti Colony,Near Durgapuri Chowk, Shahdara Zone, Delhi and Sheeshpal was present on duty from 7 a.m. to 3 p.m. He further proved the attendance register of Safai Karamchari of MCD for the month of October 2002 as Ex. DW4/A.
47. DW 5 is Bishambar Dayal Gupta who stated he used to do property dealing business in the year 2002 and during that period, he had arranged a house bearing no. C170, Amar Colony, East Gokal Pur, Delhi on rent for accused Sheeshpal and one Shivraj Singh. He also took his commission from the tenants as well as landlord as per the prevailing market rate and after that he never met any of them.
48. I have heard the Ld. APP for state as well as Ld. counsel for the accused and have carefully perused the record.
49. Admittedly there is no eye witness of the present case and entire case rests upon the circumstantial evidence. The law relating to circumstantial evidence is very clear and has been laid down by the Hon'ble Apex Court in various judgments again and again.
It has been held in Ramesh Bhai & Anr. Vs. State of Rajasthan 2009 VIII AD (S.C.) 313 that: "It has been consistently laid down by this court that where a case rests squarely on circumstantial evidence, the reference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, AIR 1977 SC 1063, Eraden & Ors. Vs. State of Hyderabad AIR 1956 SC 316, Erabhadrappa Vs. State of S.C. No.: 41/2010 20/61 Karnataka AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC 1224, Balvinder Singh Vs. State of Punjab AIR 1987 SC 350, Ashok Kumar Chatterjee Vs. State of M.P. AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances".
In Bhagat Ram Vs. State of Punjab AIR 1954 SC 621, it was laid down that : "Where the case depends upon the conclusion drawn from circumstances the cumulative effect of circumstances must be such as to negative the innocence of the accused and bring the offence home beyond any reasonable doubt".
In C.Chenya Reddy & Ors. Vs. State of A.P. 1996 (10) SCC 193, it has been observed that : "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence......"
In Padala Veera Reddy Vs. State of A.P. & Ors. AIR 1990 SC S.C. No.: 41/2010 21/61 79, it was laid down that : "When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(3) The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence"
50. The present case of prosecution is also based entirely on the circumstantial evidence as there is no eyewitness to the incident. I have considered the rival submissions made at bar and have carefully gone through the evidence on record. The case of prosecution is based on circumstantial evidence and the prosecution has claimed to have established its case by proving the circumstantial evidence.
51. In order to prove the guilt of the accused beyond reasonable doubt, it is bounden duty of the prosecution to establish that the circumstances concerned must have been established and the circumstances should be of a conclusive nature excluding every hypothesis except the one that proves the guilt of the accused. It is further required to prove that the S.C. No.: 41/2010 22/61 chain of circumstantial evidence is complete as not to leave any reasonable ground for the conclusion which is consistent with the innocence of the accused and it must have been shown that in all human probability, the offence must have been committed by the accused.
52. Ld. Counsel for the accused argued that one of the cardinal principles which has always to be kept in mind is that in our system of administration of criminal justice an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by producing evidence as may show him to be guilty of the offence with which he is charged. This initial burden of proving the guilt is on the prosecution and unless it relieves of that burden, the court cannot record a finding of guilt against him. He further argued that another golden thread which runs through the web of this administration of justice is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be accepted. In cases in which the court entertains reasonable doubt regarding the guilt of the accused, the benefit of doubt must be given to the accused and not to the prosecution. He further argued that in the present case, there is no eye witness of the case and chain of circumstantial evidence is not complete and the neighbours as well as wife of the accused have deposed in favour of the accused. He further argued that the witnesses who have deposed against the accused are either the parents of the missing girl with whom accused had a dispute as they had taken a loan from the accused and also from PW2, accused had property dispute. He S.C. No.: 41/2010 23/61 further argued that PW Shivraj Singh has also deposed against the accused as accused had not given the stitching charges of the jacket to PW Shivraj Singh. He further argued that accused was not present on that day and his attendance is marked in the MCD attendance register which also cast a doubt on the case of prosecution.
53. On the other hand, Ld. APP for the state argued that in the present case, the chain of circumstantial evidence is complete. He further argued that though there is no eye witness of the case but the evidence of PW4 Sonu, brother of missing girl and of PW9 in the present case is most important evidence. The accused was seen lastly in the company of deceased and therefore now the burden shifted upon the accused to explain where the girl went missing. He further argued that even the wife of the accused has admitted the presence of girl in their house and even one of the neighbour who has not supported the case of prosecution have admitted the presence of the girl Laxmi in the house of accused. In such circumstances, it is the duty of the accused to explain as to where that girl went missing. He further argued that PW15 has clearly stated that he saw pieces of flash in polythene which further proves the case of prosecution. He further argued that in the absence of any explanation forthcoming from the accused, the only presumption that can be raised against the accused is that he killed the girl and threw away her body in order to screen the evidence.
54. Admittedly in the present case, there is no eye witness of the entire incident. The whole case of the prosecution is based upon the circumstantial evidence. The most important circumstantial evidence on S.C. No.: 41/2010 24/61 which the entire case of prosecution rest in the present case is the testimony of PW4, PW9, PW3 and PW15. Admittedly the dead body in the present case has not been recovered. But it is a well settled principle of law that recovery of dead body is not sine qua non. Homicidal death can be proved even on the basis of circumstances provided such evidence unerringly leads to the only conclusion of the guilt of the accused. It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused caused the death of the person alleged to have been killed. But, the discovery of the dead body has never been considered as the only mode of proving the corpus delicti in murder. The 'body' doctrine is merely a rule of caution and not of law. The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross examination to bring out facts which may persuade a court to hold, that though consistent, their evidence is not acceptable for any other reason. If the court comes to the conclusion that the conduct of the witness is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the court may reject their evidence. Reliance is placed upon AIR 1981 SC 738.
55. In the present case also, the dead body of the deceased could not be recovered by the police. The circumstantial evidence which is available with the prosecution is the last seen evidence.
56. PW 1 is one Smt Prem Devi @ Premo who is the neighbour of the accused. She stated that her husband is a truck driver and Accused Shish S.C. No.: 41/2010 25/61 pal and Asha used to reside in their neighbourhood as husband and wife and one daughter was born to them. Asha used to sit with her with her daughter but she never told her anything about the character of accused or about his daughter Laxmi who was killed by accused Sheeshpal. She further stated that Asha also did not tell her anything about the previous wife of accused Sheeshpal or about his one issue who had been killed by the accused. She further stated that she does not know anything about this case. This witness has been cross examined at length by Ld. APP for the state. Though this witness has not supported the case of prosecution and is hostile on various points but she has admitted this fact that accused Sheeshpal and Asha used to reside in her neighbourhood as husband and wife and one daughter was also born to them. She has further stated that Asha never told her anything about the character of accused Sheeshpal or about his daughter Laxmi who was killed by the accused. Thus, she herself has stated that Asha did not tell her about their daughter Laxmi who was killed by accused Sheeshpal. In the present case, the name of deceased is also Laxmi and it seems that to the neighbours Laxmi was shown as daughter of the accused. Thus, PW1 though is hostile but has admitted that one Laxmi, the daughter of Sheeshpal was residing there. Though this witness is hostile but it is well settled principle of law that "that much part of the evidence of the witness can be taken into consideration if it corroborates or supports the case of the prosecution". In her cross examination by Ld. APP for the state, PW1 has further stated that accused Sheeshpal may be a bad character fellow but she does not know. This witness has not denied this fact that accused Sheeshpal is a bad S.C. No.: 41/2010 26/61 character fellow. She has merely stated that he may be a bad character fellow.
57. PW2 is one Mohina. This witness stated that she know the accused Sheeshpal present in the court as he was residing in her neighbourhood. He was working in MCD. His conduct and character was not good and he daily used to bring new ladies to his house. In the year 2002, he brought one girl namely Laxmi to his house. It was the month of September 2002 and at about 10/10.30 p.m. she heard the cries of a girl coming out of the house of accused. Thereafter that girl was not seen again and the accused lodged a missing report in respect of that girl. At that time, one Asha was living with accused as his wife. In the morning, she asked Asha as to what happened in the night on which she started weeping and kept mum. Thereafter, after about 7/8 months, when accused started beating his wife and threatened to kill her, his wife Asha came to her and narrated the entire incident to her and told that accused had killed Laxmi and after cutting her body into pieces, he threw the same in Yamuna river and accused had also committed murder of his previous wife and child. The witness further stated that Asha had also shown her the marks of beatings by the accused on her back and she had also told her that accused had threatened her to kill in case she narrates this incident to anybody else. This witness further stated that Asha used to share her feelings of sorrow with her being her neighbour. The witness further identified the photographs of girl Laxmi who was brought by the accused to his house and was killed by him. This witness has been cross examined at length by Ld. Defence counsel. In S.C. No.: 41/2010 27/61 her cross, this witness has admitted that there was a dispute between her and accused over a plot of land as accused had no door of his jhuggi and he constructed a door adjacent to her door forcibly. This witness has stated that she had seen Laxmi with her own eyes but she had not lodged any complaint regarding the cries of Laxmi heard on that day. This witness further stated that when she asked Asha in the morning, Asha started weeping and did not disclose her anything.
58. Ld. Defence counsel argued that the testimony of PW2 cannot be believed as she has a dispute with the accused and that is the reason, she has given a false statement against the accused. On the other hand, Ld. APP for the state argued that merely because the witness has a property dispute with accused is no ground to throw away her testimony.
59. No doubt PW2 herself has admitted in the court that she has a property dispute with the accused but merely because she has a property dispute with the accused which she herself has admitted in the court is no ground to throw away the testimony of this witness. The court can exercise caution while scrutinizing the evidence of this witness but merely because PW2 has a property dispute with the accused is no ground to throw away the whole testimony of PW2. This witness has duly identified the photographs of deceased Laxmi in the court and has stated that accused had brought the girl to his house in September 2002. PW1 has also admitted about Laxmi but she has stated that Asha never told her anything about the accused's daughter Laxmi who was killed by the accused. Thus, the presence of Laxmi at the house of accused Sheeshpal is not only admitted by PW2 but also by S.C. No.: 41/2010 28/61 PW1.
60. Ld. Defence counsel argued that PW2 heard the cries of girl coming from the house of accused but even then she did not make any report to the police which shows that the witness is deposing falsely. Merely because PW2 chose not to report the matter to the police is no ground to raise any presumption that witness is deposing falsely. Nowadays in city like Delhi, it has become common practice that nobody wants to interfere in the household affairs of their neighbours. PW2 is also no exception to this rule and if after hearing the cries from the house of her neighbour, she did not report the matter to the police, then for this no adverse inference can be drawn against her.
61. PW3 is Munni, mother of deceased Laxmi who stated that in the year 2002, she alongwith her husband and children were residing at Dlishad Garden, Delhi. She and her husband used to collect garbage. During that period, accused present in the court came to their house who was having some forms and asked them to fill up the forms for getting loan to which they refused but somehow he enticed her husband to fill up the forms and her husband filled up the forms. Thereafter accused continued visiting their house and told them that their loan has been sanctioned but they have to pay Rs. 20,000/ for disbursing the loan amount on which they paid Rs. 20,000/ to the accused. On 28.9.2002, accused came to their house in their absence and told his son that "Tumhari Mummy Ko Bijli ne Pakad liya Hai" and asked him to send her daughter Laxmi with him. Initially her son refused but accused on this pretext took her daughter from home. When they returned S.C. No.: 41/2010 29/61 home after finishing their job, she asked her son as to where Laxmi has gone to which her son replied that Laxmi has been taken away by accused Sheesh Pal. As they did not know the address of the house of accused, so they enquired from one person who told them that accused Sheeshpal is serving in MCD and he can show the accused to them from a distance as he did not want to come in front of accused. Thereafter they met the accused and asked about their daughter to which accused replied that his wife has given birth to a child and so he had brought the prosecutrix from their house . She further stated that accused asked them to accompany him to his house and accused took them to his house where nobody was present and the house was locked. Thereafter accused told them that Laxmi has gone with his wife to Hindu Rao Hospital for getting some medicine. He opened the lock of his house and made them sit in the house. They waited there for sometime and thereafter accused asked them to wait outside as he would bring Laxmi and his wife with children from the hospital. They waited outside the house of accused till 5 p.m. but accused did not return. Thereafter they came back to their house and for three days, they kept visiting the house of accused again and again but nobody was found there and the house was found locked. The neighbours of the accused asked her as to why she is visiting the house of accused again and the neighbours also told her that accused after kidnapping the girls, used to rape them and murder them and used to throw their bodies in the Yamuna river after cutting them into pieces. Thereafter they went to the house of brother of accused Sheeshpal namely Ompal and asked him to help them in getting their daughter back from the accused on which Ompal S.C. No.: 41/2010 30/61 told them that they should not approach him for this as Sheeshpal is a professional murderer and he has already killed about 28 girls and have thrown their body in Yamuna and he had also killed his legally wedded wife and children. They were also informed by the persons of locality that accused used to bring ladies on the pretext of getting them employed and for securing loans for the people from Government and used to rape them and kill them. Later on they came to know that accused had very cleverly himself had lodged a complaint to the police at 100 number from Hindu Rao Hospital that Laxmi who was his daughter is missing from Hindu Rao Hospital. Thereafter they went to P.S. Seema Puri but police officials did not entertain them. Then they went to P.S. Subzi Mandi but police of P.S. Subzi Mandi also did not listen them and after their approach to Hon'ble High Court, the Crime Branch investigated the matter and accused was arrested by the Crime Branch after about 3 years of the occurrence. The accused was interrogated in their presence and he confessed his guilt. This witness also identified the photographs of her daughter. In her cross, this witness has stated that she had lodged a report against the accused and his other three associates namely Master, Anil and one fair boy for committing rape upon her. Thereafter this witness volunteered herself that on 3.10.2002 accused Sheeshpal came to her house and informed her that he has traced her daughter and asked her to accompany him. On this she and her son went to his house as her husband was not present in the house at that time. Thereafter the accused left his son at his residence and took her to some unknown place near Chandrawal on his scooter. There he left her in a room S.C. No.: 41/2010 31/61 which was an underground room. There were 4/5 minor girls in that room. There the accused with his associates committed rape upon her for the whole night and in the morning the accused took her to his house from where she alongwith her son went to her own house. She stated that this is the reason why she had lodged complaint U/s 376 IPC against the accused. In her cross, this witness has further stated that the complaint was lodged by her orally at P.S. Subzi Mandi and no document to this effect was given to her. She further stated that she had got a copy at home regarding the complaint when accused and his three other associates committed rape upon her. From the cross examination of this witness, it is clear that this witness is a truthful witness and is not tutored one. She has clearly stated that she had given the complaint orally and no documents to this effect was given to her. She has also stated that no quarrel took place between her and the accused on 25.8.2003 and on 8.10.2003. She has admitted that she had given a complaint to Commissioner MCD on 7.11.2002 against the accused. She has also admitted that she was aware that cases were going on against the accused and FIRs have been lodged against the accused regarding the incident of killing his wife and daughter . This witness has denied the suggestion that accused had given Rs. 50,000/ to her and thereafter she refused to pay back the same when accused demanded the same and she implicated the accused falsely in the present case. Again on asking the date, the witness stated that accused took her daughter on 3.9.2002 whereas in chief, the witness has given the date as 28.9.2002. Counsel for the accused argued that there is clear contradiction in the testimony of PW3. It may be S.C. No.: 41/2010 32/61 mentioned that immediately in the next sentence, the witness has stated that she is illiterate and she might not be knowing the exact date. The witness herself has stated that she used to collect waste material from the houses and do the work of garbage collection. She is illiterate and therefore, in such circumstances, on asking again and again (since the witness is asked repeated incidents again and again),it seems that she has become slightly confused and for the same, no adverse presumption can be raised.
62. The witness has admitted that Ex. PW3/Dx and Ex. PW3/DX1 are the photocopies of the complaint made by her when the accused took away her daughter. It may be mentioned that Ex. PW3/Dx and Ex. PW3/DX1 are photocopies and there are different dates mentioned on this complaint. As at one place date of 17.10.2002 and at another places dates of 31.10.2002 , 7.11.2002 and 14.10. 2002 are mentioned. Whereas below the thumb impression of complainant, there is no date mentioned but from this it is clear that the incident is of the year 2002 and in these complaints also, the complainant has mentioned that the accused took away her daughter from her house without her consent or without the consent of her husband. In such circumstances, what is the significance of presence of accused at his duty on 25.8.2003 has not been explained by the counsel for accused. In the suggestion given to PW3, it is stated that accused had taken certificate from the department regarding his presence on duty on 25.8.2003. Defence counsel has failed to explain the significance of this duty with the incident of the present case.
63. In her cross, PW3 has admitted that after about 8 days of S.C. No.: 41/2010 33/61 28/9/2002 accused had informed them that Laxmi is missing and at that time PW3 was present in her house. PW3 has further admitted that accused had tried to help in the search of Laxmi. She had denied the suggestion that they returned to Delhi with the accused. This witness volunteered that they were taken to Aligarh for the search of their daughter where they were handed over to some persons of bad character so that they could be killed. Again a suggestion was given to this witness that they came to Delhi with the accused which fortifies the testimony of PW3 that they were taken to Aligarh by the accused only. This witness further stated that she alongwith her husband and son were beaten by those persons of bad character at Aligarh but they did not lodge any complaint at Aligarh because they wanted to save their lives. From the testimony of PW3 also it stands proved that it was the accused who took away the daughter of PW3 i.e. deceased Laxmi from the house of her parents.
64. The brother of the deceased Laxmi i.e. PW Sonu has been examined by the prosecution as PW 4. This witness also stated that on 28.9.2002 he alongiwth his sister Laxmi was present in their house and their parents had gone to collect garbage. He stated that despite his protest, accused took his sister Laxmi with him on the pretext that his wife has delivered a child and she needs some care. He stated that while the accused was taking away his sister on motorcycle he protested and there were some persons from Mohalla who were sitting in front of their house and playing cards at that time. This incident was also witnessed by them. Nothing material has come out of the cross examination of PW 4 . He has also S.C. No.: 41/2010 34/61 admitted during his cross that his parents went to bring back Laxmi from the house of accused but he does not know the reasons why Laxmi was not brought back by them. The reasons have already been supplied by PW3 in her testimony to corroborate the testimony of PW4. PW4 Sonu has also admitted that he had gone to Aligarh alongwith his father, Mausa and some other relatives to trace his sister Laxmi. He has volunteered that accused had taken them there. He stated that accused had come to take his sister on motorcycle. A suggestion has been given to PW4 that on 24.10.2002 PW4 alongwith his sister, parents and Mausa had gone to the house of accused. PW4 has deposed that he had gone to the house of accused only once alongwith his parents and his Mausa and sister were not with them at that time. He has also not given date of that visit in his answer. He has further stated that they had gone to Aligarh on 28th October 2002. Thus, the accused himself has given contradictory suggestions to the witnesses as at one place accused himself has stated that the accused had gone to Aligarh alongwith PW4, father of PW4 and Mausa and other relatives on 28.10.2002 in search of their daughter. If that is so, how the sister of PW4 can come to the house of accused on 24.10.2002 alongwith PW4 and her parents and Mausa has not been explained by the accused as accused himself has given a question to PW4 that on 24.10.2002 PW4 alongwith his sister, parents and Mausa had visited his house. In his cross , PW4 has further stated that he was ill on that day and accused had forcibly taken his sister.
65. So far as the DD entry regarding the missing of girl Laxmi is concerned , then they are dated 3.10.2002 and are Ex. PW22/A. Accused in S.C. No.: 41/2010 35/61 his statement U/s 313 Cr.P.C. has stated about this DD entry that it is a matter of record. Thus, the accused has tried to give evasive reply regarding this DD. So far as the PCR form Ex. PW34/A is concerned, then accused has stated that he does not know anything about it. In Ex. PW34/A, it is mentioned that information has been given by one Sheeshpal. If the information was given by accused himself and he had given the name of father of Laxmi as Sheeshpal then, why the accused has tried to conceal this fact from the court has not been explained by the defence counsel. The reply of the accused to DD as well as to the PCR form is evasive.
66. In Swapan Patra Vs. State of Best Bengal (1999) 9 SCC 242, Supreme Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra Vs. Suresh (2001) 1 SCC 471, where is has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. Supreme court has further held in this case that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and Ors. Vs. State of Rajasthan 2000 (5) SC 161.
67. In Anthony D'Souza Vs. State of Karnataka 2003 Crl.L.J. 434, the full bench of Supreme Court consisting of Hon'ble R.C. Lahoti, Brijesh Kumar and H.K. Sema, JJ opined in para 15 as under: S.C. No.: 41/2010 36/61
"By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination U/s 313 Cr.P.C. against the established facts that can be counted as providing a missing link for completing the chain".
68. Moreover the accused himself is making contradictory statement. He has stated that he cannot say about the PCR form but about the DD entries he has stated that it is a matter of record. If the girl Laxmi went missing from 3.10.2002 then a question has been put by the accused to PW Sonu that PW Sonu alongwith his sister, father, mother and Mausa came to the house of accused on 24.10.2002. If the girl went missing on 3.10.2002 then there was no occasion for PW Sonu to accompany his sister to the house of accused on 24.10.2002. It is not the case of accused that girl was found subsequently or that she did not go missing. Again a suggestion has been given to PW Sonu that on 28.2.2002 accused alongwith Sonu and his other family members went to Aligarh in search of Laxmi. This plea again is contradictory since if the girl Laxmi came with her parents and brother to the house of accused on 24.10.2002 then she could have only went missing between 24.10.2002 to 28.10.2002 and not prior to that. In such circumstances the DD entries are either false or fabricated one. Neither in respect of the PCR form Ex. PW34/A nor in respect of DD entry Ex. PW22/A, the accused has given any such answer. He has neither stated about these entries as to be false or incorrect nor he has stated that these are correct. Accused has given evasive reply regarding these documents for which only an adverse inference can be drawn against the accused. S.C. No.: 41/2010 37/61 Moreover the testimony of PW22 and PW34 have remain unchallenged and unshattered and no suggestion has been given to these witnesses that they are deposing falsely or that the PCR Form or DD entry is false and fabricated one and has been prepared subsequently.
69. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine his guilt. Hence, that piece of conduct which is not connected with the guilt of the accused is not relevant. At the same time, however, unnatural, abnormal or unusual behaviour of the accused after the offence may be a circumstance against him. Such conduct may be inconsistent with his innocence. Hence, conduct, which destroys the presumption of innocence can be considered as relevant and material.
70. One more witness PW Suraj Bhan has been examined by the prosecution as PW9. This witness has stated that in the year 2002 near Diwali festival, he was sitting in front of house of Rajbir and playing cards. At about 4/5 p.m. accused came on a motorcycle and went inside the house of Rajbir. Thereafter accused brought the daughter of Rajbir and took her away on motorcycle with him. Thus, this witness also corroborates the fact that deceased Laxmi was taken away on motorcycle by accused Sheeshpal as deposed by PW4 Sonu.
71. PW5 is Asha, wife of the accused who stated that she originally belongs to Ambala. Accused is her husband and she was married with accused Sheeshpal in a temple in year 2001. She stated that prior to her marriage with accused, she was already married with one Rajan and had three children out of that wedlock. She stated that those children were living S.C. No.: 41/2010 38/61 with their father. She further stated that she did not obtain divorce from her previous husband. Since her first husband was not keeping her well and was beating her after taking liquor hence she left him and came to Delhi by bus. Thereafter she took a TSR and went to Palam to her sister's house but she could not trace the house of her sister. She asked the driver of TSR to take her to some place where she can spend night and the said driver took her to the house of accused Sheeshpal and she stayed in his house. In the morning she wished to go to her sister's house and accused gave her Rs. 100/ and she went to Palam Village where her sister was residing. She found them and stayed with them for five/seven months and during this period, accused Sheeshpal kept on visiting her sister's house to meet her. She further stated that when she stayed in the house of accused Sheeshpal, Munni was already there in the house of Shispal. She enquired from the accused about Munni and accused told her that Munni is his sister in law and she visits his house off and on. Wife of accused Sheeshpal had already expired as told to her by accused. She further stated that after her marriage with accused, Munni and her family members used to visit his house and Munni used to ask her to leave the house of accused Sheeshpal as she wanted to live with him being his sister in law. She gave birth to a female child in the ninth month of September 2002 at Hindu Rao Hospital. It was a ceasarian delivery. Deceased Laxmi came to her for looking after her during those days. Munni left her daughter Laxmi after 10/15 days of her delivery to her house. Accused Sheeshpal took her and Laxmi to Hindu Rao Hospital as she was having problem regarding her stitches. She stated that Laxmi was a tall girl S.C. No.: 41/2010 39/61 but she was minor and from the hospital, she was found missing and her husband had lodged a report regarding missing of Laxmi. Her husband had also called at 100 number at P.S. Subzi Mandi. After the incident of missing of Laxmi, she went to her parent's house without disclosing this fact to her husband and remained outside from her house for more than one year. Her husband with one police official had gone to the house of Munni to enquire about Laxmi. Next day, mother of Laxmi came to her house and started shouting that where they have sent her daughter or whether they have sold her to someone. Thereafter she went to her parent's house after one or two months of the incident of missing of Laxmi as she came to know that her husband has started living with his friend Master and another lady namely Reena. She further stated that once her daughter from her previous husband namely Kajal had come to the residence of accused at Majnu Ka Tila as she had brought her daughter with her for few days and at that time Kajal was 6/7 years of age. Though this witness has not fully supported the case of prosecution but that much of the evidence can be taken into consideration which corroborates the case of prosecution. This testimony of PW5 who is the wife of accused also fortifies this fact that the girl Laxmi was at the house of accused alongwith the accused and his wife at the time, she went missing. PW5 Asha has stated that Laxmi was missing from Hindu Rao Hospital when they had gone to Hindu Rao Hospital and her husband had lodged a report regarding the missing of Laxmi to Police and also called on 100 number at P.S. Subzi Mandi and thereafter he went to the house of Munni to enquire about Laxmi but accused in his statement U/s 313 Cr.P.C. S.C. No.: 41/2010 40/61 Initially has totally denied this fact of the missing of Laxmi. He has denied this fact and stated that suspicion of Rajbir was base less and there was some dispute with regard to money transaction between him and Rajbir but subsequently in his additional statement he has stated that Laxmi came to his house with the consent of her parents and brother. He has stated that he did not bring her forcibly. This statement of accused is in clear contradiction to the testimony of his wife who has stated that the girl Laxmi alongwith her mother Munni came to stay in their house and thereafter Munni left after leaving Laxmi at their house. Not only the statement of accused is in contradiction to the statement of PW5 but also of PW4, brother of the missing girl Laxmi who has stated that Laxmi was forcibly taken by the accused on misrepresentation and despite his objection. Similarly PW9 one more witness had also seen the accused carrying the girl Laxmi on his motorcycle. Accused has further stated that he was having very good family relations with the parents of Laxmi and nobody stopped him from taking away Laxmi as everybody in the locality knew about the good family relations between him and the parents of Laxmi. Thus it stands proved that said Laxmi was living at the house of accused when she went missing.
72. According to PW5 said Laxmi went missing from Hindu Rao Hospital. In this regard DD no.17 Ex. PW22/A and Ex. PW22/B is important. As per Ex. PW22/A which is dated 3.10.2002 Laxmi D/o Sheesh Ram aged about 16 years was missing . The missing report was also entered in missing persons register Ex. PW22/B. Ex. PW22/A is a call made from Hindu Rao Hospital which is dated 3.10.2002. The same had been made by S.C. No.: 41/2010 41/61 the accused himself and it says that one girl Laxmi D/o Sheesh Ram is missing from Hindu Rao Hospital. PW34 has stated that on 3.10.2002 at about 2.49 p.m. he received a telephonic call from one Sheeshram regarding the missing of his daughter namely Laxmi from Hindu Rao Hospital. He filled up the information in PCR form Ex. PW34/A. Thus from the testimony of PW34, it is clear that accused himself gave the information regarding missing of Laxmi from Hindu Rao Hospital and made a call from Hindu Rao Hospital only on 100 number. In his defence accused has examined one witness DW 4 Girish Kumar , Assistant Sanitary Inspector, MCD Office, Shahdara, North Zone. He stated that as per the record, one Sheeshpal S/o Balwant was Safai Karamchari in MCD Office and on 3.10.2002, his duty as Safai Karamchari was at the site of Jyoti Colony, Near Durgapuri Chowk, Shahdara Zone, Delhi and Sheeshpal was present on his duty from 7 a.m. to 3 p.m. He brought the original attendance register of Safai Karamchari and as per entry no.41 for the month of October 2002, Shishpal S/o Balwant was on duty from 1st October 2002 to 8th October 2002. He further proved the attendance register of Safai Karamchari of MCD for the month of October 2002 as Ex. DW4/A. In his cross, this witness has admitted that the attendance register which he brought in the court does not bear any stamp on the same which can show that this register is of MCD and there is no certificate on the register issued by any officer of MCD regarding the attendance of Safai Karamchari. It is also admitted by DW1 that in the attendance register of safai Karamchari, there is no where mentioned that the attendance of Safai Karamchari were attended by any S.C. No.: 41/2010 42/61 officer, however there are signatures of someone and as per the procedure, the officers used to sign the same. He further stated that he cannot say who had signed in this register and this register is also not page marked. He has further admitted that he himself has not marked the attendance of workman in the register as he was not posted there. He has also admitted that none of Safai Karamchari has put their signatures in the register and word "P" is also not recorded anywhere for marking the presence of Safai Karamchari and only lines are marked against their presence. He has further stated that he does not know accused Sheeshpal whose attendance is marked at S. No. 41 as he is posted in this unit for the last 6 months. From this attendance register in which neither there are signatures of any Safai Karamchari nor word "P" is mentioned against their names and only lines are marked , no presumption can be raised that it truly depicts the attendance of any Safai Karamchari. Ld. APP for the state strongly argued regarding the admissibility in evidence of this register. He argued that from this register, it seems that none of the Safai Karamchari of MCD ever takes any leave and all the Safai Karamcharis on the given dates were present and this itself is contradictory seeing the conditions of sanitation in the city like Delhi. He further argued that mere marking of the attendance in the morning or in the evening does not show that the accused was present on his duty throughout the day. He argued that even if this attendance register is taken into consideration still from this register, no presumption can be drawn that if a person marks his attendance in the morning and also in the evening then he was present on the duty throughout the day and the he did not leave the site S.C. No.: 41/2010 43/61 for the whole day.
73. On the other hand, Ld. defence counsel argued that the attendance register of 3.10.2002 shows that accused was present on his duty in the MCD and had not gone anywhereelse and in such circumstances the accused could not have made the call. PW 5 who is the wife of accused has stated that the girl Laxmi went missing from Hindu Rao Hospital and her husband himself had made a call to PCR. The accused in his statement U/s 313 Cr.P.C. has given a very evasive and cryptic reply regarding the DD entry and PCR form and has stated that it is a matter of record or it is incorrect. Even if we take this fact that accused marked his attendance in the attendance register of MCD still from the marking of his attendance , no presumption can be drawn that he was present on his duty throughout the day. DW4 himself has stated that he joined the office from where he has brought the register for the last 6 months. There is no other witness produced by the accused who can depose about the fact that accused was present on the site on 3.10.2002 throughout the day. Thus, from this attendance register also no presumption can be raised that accused after marking his attendance in the MCD was present on his duty throughout the day. As per the PCR form, the information was received at 14:49 hours which means at around 2.49 p.m. In such circumstances, the possibility of accused marking his attendance in the morning and thereafter leaving the site cannot be ruled out. In the attendance register Ex. DW 4/A proved on record, there is no entry to show at what time accused left the office and therefore, mere marking of attendance does not prove the plea of alibi taken S.C. No.: 41/2010 44/61 by accused. Even the DD Ex. PW22/A is made at around 2.55 P.M. in the day time.
74. PW5 further stated that after the incident, she went to her parent's house and remained outside from her house for more than one year without disclosing this fact to her husband. The conduct of PW5 in this regard is quite strange. According to PW5, Laxmi went missing from Hindu Rao Hospital. If that was so, then why there was a need for PW5 to go from the house of accused without telling him. PW5 has stated that she was married with the accused and the accused is her husband. But it seems that without telling her husband, PW5 left her house and went to her parent's house where she stayed for almost more than one year as per her own testimony. If Laxmi went missing from the hospital, there was no need for PW5 Asha to leave her home and reside at her parent's house and that too without the knowledge of her husband. Why PW5 did not disclose this fact to her husband that she is leaving his house and going to her parent's house is a missing link in this whole incident which has not been explained by the accused. Even PW5 has not been cross examined by the accused regarding this fact. PW5 stated that she left her husband as she came to know that her husband has started living with Master and another lady Reena. But again a question arises as to why PW5 Asha did not object to her husband living with another lady or why she did not disclose this fact of leaving her husband's house to anybody including the accused. The conduct of PW5, wife of the accused in such circumstance raises a doubt and the answer of PW5 leaving her husband soon after the incident without disclosing her S.C. No.: 41/2010 45/61 husband for more than one year is supplied by PW15 who in his testimony has clearly stated that he alongwith Asha had seen the pieces of flash wrapped in a polythene on the Parchati of accused.
75. Facts are sometimes stranger than fiction. To hold that a particular version is improbable is not to disbelieve in its entirety or to find it to be false. Whenever there is exaggeration or imagination by witnesses and the court is satisfied that over and above the accused who had committed the crime, other persons were also roped in by the witnesses, the court must be on its guard and must weigh the evidence in its proper perspective in the light of what is reasonably expected from ordinary course of human conduct and infer what might have happened.
76. PW6 is Raman Kumar, LDC from General Branch, MCD, Shahdara , North Zone, Delhi. This witness stated that in the year 2005, IO of the case came at his office and he showed some impressions of the stamps of Assistant Commissioner, Shahdara, North Zone and Licensing Inspector, Shahdara, North Zone. He stated that the impressions looked like that of official stamps but none of the official stamps which remained in his possession were misplaced or stolen. Case of the prosecution is that accused used to allure the girls on the pretext of giving them employment or to get sanctioned loan for their family members from the government departments. While the accused was arrested and search of his house was made, some fake MCD stamps were also recovered from his house. The recovery of those stamps have been duly proved by the prosecution. From the statement of PW6 , it is clear that none of the official stamps were found missing from S.C. No.: 41/2010 46/61 the office and, therefore, the only presumption that can be raised is that stamps found in the possession of accused were fake. This witness proves the conduct of accused that he used to allure people on promise of getting them jobs or loan sanctioned from government.
77. PW8 is one D.K. Sharma who is also Medical Record Clerk from Hindu Rao Hospital. This witness corroborates the case of the prosecution that a female child was born on 12.9.2002 to patient Asha W/o Sheeshpal and thereafter she was discharged from the hospital on 19.9.2002.
78. PW7 is one Smt. Prakasho. She stated that she has four daughters and name of her third daughter is Asha who was married to one Rajan in Ambala who belonged to Lucknow U.P. In the year 2001, Asha left Ambala without giving any information to anyone . She further stated that thereafter in the year 2004 she came came to know that Asha was living in Delhi with accused Sheeshpal and during her living with Sheeshpal, one girl was born to her in Delhi. In the year 2004, Asha visited Ambala for meeting her children and Asha never disclosed anything to her about Sheeshpal and his behaviour. She was cross examined by Ld. APP for the state and in her cross examination, she has admitted this fact that in the year 2002 Asha came to Ambala and took her daughter Kajal to Delhi. She further stated that Asha again came in the year 2003 with Kajal and after handing over Kajal to her, she left Ambala for Delhi. Kajal informed her that during living in Delhi, Sheeshpal had beaten her badly and also broken her leg. She has also admitted that Kajal was scared of accused Sheeshpal and did not want to return to Delhi because she was scared of accused Shispal. In her cross by S.C. No.: 41/2010 47/61 Ld. Defence counsel, she has stated that she did not get Kajal treated for her injuries in Ambala and she cannot say if Kajal had sustained injuries while on her way to Ambala. No suggestion was put by the accused to this witness that he never gave beatings to Kajal and did not break her leg. From the statement of this witness also, it is clear that Kajal, the daughter of Asha from her previous husband was scared of accused Sheeshpal and she did not want to return to Delhi because she was scared of accused Sheeshpal. The reason she has given is that accused had beaten Kajal very cruelly and had broken her leg. So far as the breaking of leg is concerned, then no medical record has been filed by this witness on record but she has also admitted that she did not get Kajal treated for her injuries in Ambala. If the accused did not beat Kajal and did not break her leg then what can be the reason that Kajal was so much scared of accused Sheeshpal . No suggestion has been given to PW7 that Kajal was not scared of Sheeshpal or that he had not beaten her or did not break her leg. Neither any defence in this regard has been led by the accused. In such circumstances, the only reason that Kajal was so much scared of accused Sheeshpal was the behaviour/conduct of accused or the fact that accused had killed Laxmi. Though this witness has denied the suggestion given by Ld. APP for the state but if the accused had not given any beatings to Kajal or to Asha then what could be the reason that Kajal was so scared of accused as stated by PW7. PW10 is the father of deceased Laxmi. He has deposed on the lines of PW3 Munni, mother of Laxmi. He has also stated that accused became violent and PCR was called. Thereafter at P.S. Subzi Mandi his complaint was not recorded and S.C. No.: 41/2010 48/61 thereafter the case was registered at the intervention of Hon'ble High Court. He has also stated about the fact of taking them to Aligarh by accused.
79. PW 13 is Dr. Akash Jhanjee, Junior Specialist Forensic Medicine, Subzi Mandi Mortuary, Delhi who had examined the accused and has stated that there is nothing to suggest that the person examined is not capable of performing sexual intercourse. He proved his report as Ex. PW13/A.
80. PW14 is the Draft man who stated that on 22.2.2005 at the request of Inspector Mahesh Tholia, he visited the house of accused and who took rough notes and measurements of the spot at the instance of Asha W/o Sheeshpal and on the basis of those documents, prepared scaled site plan and proved the same as Ex. PW14/A.
81. PW15 is Shivraj Singh. This witness stated that he is running a factory of stitching and he know accused Sheeshpal since 2002. Accused Sheeshpal was working as Sweeper in MCD. In 2002, accused came at his factory for making jacket. On 10.2002 he went to the house of accused for taking payment of Jacket delivered by him. There he met Asha, the wife of accused. When he went at the house of accused for taking money then, accused went for natural call in latrin which was situated outside the house. At that time, Asha told him that one Laxmi was missing from the house since last night. In the house of accused, one wooden stair was kept. Asha told him that something was kept in the roof of the house. So he went on the roof while using the said wooden stairs and there he saw a black colour polythene bag and he felt some piece of flesh by touching of said polythene. S.C. No.: 41/2010 49/61 Thereafter he returned back from the roof. Asha also told him that she had heard some noises in the previous night from the adjacent room of said house. At that time, Asha was afraid. In the meanwhile, accused returned back from the latrin and he threatened him and Asha that if they shall disclose anything to anybody, he will kill them. He was also scared and therefore he returned back to his house. He also stated that before arrival of Sheeshpal from Latrine, he had also checked the bed of accused after opening the same but nothing was found. He further stated that he know the fact that accused Sheeshpal had killed his wife earlier and after killing his wife, accused had kept the dead body in a box. Accused Sheeshpal was fond of woman and he had illicit relations with the women and in the area of Chandrawal, local residents were scared about the presence of accused as he is a very dangerous man. This witness has been cross examined at length by counsel for accused but nothing material has come out of the cross examination of this witness.
82. Ld. Defence counsel argued that it is very strange that despite seeing the dead body of Laxmi cut into piece and wrapped in polythene and covered with Tripal on the roof of the room, PW15 did not report the matter to police or anybody else. It may be mentioned that PW15 has stated that alongwith him PWAsha also saw the dead body. Both of them also saw blood stains near the hand pump. If PW15 did not disclose this fact to anybody else or PW Asha also did not disclose this fact to anybody else and turned hostile, then there is no strange thing in it. Ld. App for the state argued that it is common now a days in city like Delhi that people do not S.C. No.: 41/2010 50/61 want to get themselves involved in the affairs of their neighbours or anybody else. He further argued that now a days, even if a person in accidental condition is lying on the road, nobody comes forward to take him to the hospital. Either he is left dying on the road or at the most some passers by informs on 100 number but nobody bothers to take an accident victim to the hospital. He further submitted that reason for this is that sometimes a person who brings the injured to hospital found himself either been made an accused or a witness in the case due to which he has to daily take rounds of the police station or the court. Ld. APP for the state further argued that it is a routine scene in the courts where the public witnesses if his chief examination or cross examination is deferred for one reason or other, then they do not want to come again in the court and always show their inability to come to the court. He further argued that people for the fear that they may be implicated by the police as an accused in any case or if made witness, then they will have to depose against the accused, does not come forward to report the matter to police. He further argued that in the present case also PW15 himself has stated that accused had killed his previous wife and kid also. Still the accused was roaming free , therefore the only impression that must be in the mind of PW15 was that if he will report the matter to the police, then he will be falsely implicated or accused will not leave him and for this fear PW15 who is a small business man did not report the matter to police. In my view, the submissions of Ld. APP for the state bears force and cannot be ignored. The only reason why PW15 did not come forward and report the matter to police is obvious that he was scared of S.C. No.: 41/2010 51/61 accused and further did not want to get himself involved in any police case or court case.
83. PW15 has admitted that he did not visit police station to intimate the police regarding this incident. He has also stated that there are two room in the house of accused . In the back room, his wife was staying and accused Sheeshpal was putting up in the front room. The bed in the room of accused is single bed and the bed in the room of Asha is also single. He stated that he cannot tell about the occupants of the back side of the house of accused or who was residing in the left or right side as he occasionally used to visit his house. He has stated that accused was to pay to him Rs. 400/450/ as consideration of stitching the jacket and he did not pay the same. This witness was cross examined on the point that accused had killed his previous wife and one kid and in the cross examination also he has stated that it is a known fact in the mohalla that accused had killed his previous wife and one kid and packed them in a box and disposed off in Yamuna. In his cross also he has admitted that he himself had seen the pieces of body /flash in the polythene of black colour with the help of stair case. The polythene was half tied and half opened and he got scared soon after seeing the pieces of body. He further stated that he cannot say as to how many polythene were there. The reply of this witness inspires confidence and he does not seem to be tutored witness as in that condition after seeing the pieces of body in a polythene, any person would get scare and it will not be possible for him to count the number of polythenes at that time and therefore if PW15 did not count the polythenes at that moment then for this no adverse inference can S.C. No.: 41/2010 52/61 be drawn. He has stated that Parchhati where the pieces of dead body were kept was wood made. A suggestion has been given to him that it was only after when the wife of accused gave statement to the police that PW15 also gathered courage and told the true facts to the police that accused has killed Laxmi. This suggestion has been put to the witness by the accused himself. This witness has again stated that he did not narrate the incident to anybody.
84. He has also admitted this fact that he accompanied accused Sheeshpal to Aligarh in search of deceased Laxmi and they were about 4/5 persons when they went to Aligarh and no clue could be gathered about Laxmi in Aligarh. PW Munni has also stated that one Shivraj Singh also accompanied them to Aligarh in search of Laxmi. From this fact also it is clear that PW15 is not lying in the court. Ld. Defence counsel argued that if PW15 had seen pieces of woman body/flash in the polythene in the house of accused, there there was no need for him to go to Aligarh. But as discussed above for the fear of accused and due to fear of the police case or court rounds, PW15 did not report the matter to anybody else and further since there were threats of accused to him, therefore it seems that he had no option but to accompany the accused to Aligarh in search of Laxmi.
85. A suggestion has been given to PW15 that since accused Sheeshpal did not pay the consideration for stitching of jacket, therefore he falsely implicated him in this case. It is hard to believe that merely because the accused did not pay stitching charges of Rs. 450/ to PW15, therefore PW15 falsely implicated the accused in the present case. S.C. No.: 41/2010 53/61
86. A witness cannot be branded as a liar and his evidence cannot be rejected outright even if part of his testimony is found to be doubtful or even incorrect. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. Ld. counsel for the accused argued that even if for argument's sake we say that PW15 saw the pieces of flash wrapped in polythene but that itself does not prove the fact that those pieces of flash were of missing girl Laxmi and there is no evidence that the pieces of flash found were of human body and were of missing girl Laxmi. On the other hand, Ld. APP for the state argued that the time gap of the accused bringing missing girl Laxmi from her house forcibly and thereafter hearing of cries of the girl by PW2 in the night and subsequently seeing of pieces of flash in the polythene by PW15 is so short that it can only be the flash pieces of missing girl Laxmi and none else. In my view, the submissions of Ld. APP for the state bears force. PW5 Asha has stated that she had given birth to a female child in September 2002. She has also admitted that Laxmi was there at that time at their house for looking after her. Accused in his statement has also admitted this fact. Now subsequently there is a missing report of Laxmi dated 3.10.2002. Prior to that it was on 1.10.2002 that PW15 visited the house of accused in the morning. There is also statement of PW2 to this effect that she heard the cries of a girl in the night and thereafter she made inquiries from Asha, wife of the accused and when Asha did not disclose anything, she kept mum. Thus, the overall circumstantial evidence proved by the prosecution only points out to one fact that the pieces of flash seen in S.C. No.: 41/2010 54/61 polythene by PW15 were of none else but of missing girl Laxmi.
87. A suggestion has been given to PW15 that in the year 2003 he alongwith accused Sheeshpal and one Reena used to live in C17 Gokulpuri. Accused has also examined one DW5 Sh. Bishambar Dayal who stated that he is doing the property dealing business . Accused Sheeshpal with one Shiv Raj Singh came to his shop of STD and PCO in the year 2002. They requested him to arrange two room set on rent and he took both of them in house bearing no. C 170, Amar Colony, East Gokal Pur. He showed them the accommodation and both of them agreed to live in the premises on rent as tenant. It may be mentioned that in the suggestion given to PW15 the year has been mentioned as 2003 whereas DW5 has stated that accused came with Shiv raj Singh in the year 2002. Further the address of the house has been given as C 17 Gokul Puri to PW15 whereas DW5 has stated that both of them took on rent C 170 Amar Colony, East Gokal Pur. Neither any rent receipts have been filed by the accused nor the same has been filed by DW5. DW5 has further stated that no rent deed was executed. Even this defence led by the accused is contradictory. If we believe the testimony of DW5 then as per DW5 the accused alongwith Shiv Raj Singh took the premises on rent in the year 2002 but the wife of the accused herself has stated that he delivered a baby in 12.9.2002 and was discharged from hospital on 19.9.2002 and at that time accused was living with him and Laxmi was also with them. The accused has not stated in his statement U/s 313 Cr.P.C. that he was not living at his house at that time when Laxmi went missing or that he was living with Shiv Raj Singh at some other address on rent at that time. S.C. No.: 41/2010 55/61 Moreover prior to examination of DW5 no such evidence has come on record. No suggestion has been given to prosecution witnesses PW3, 4 or 5 that accused was not living at his house at the time of incident or was living with Shivraj Singh and one Reena at some other address. Later on it was only after the incident that the accused started residing with Shivraj Singh and one Reena at some other address as per PW5 Asha herself. If we believe the testimony of PW5 that subsequently in the last leg of 2002, the accused started living with Shivraj Singh and Reena at some other address, still it shows the conduct of accused. Why the accused left his house and started living with Shivraj Singh and Reena at some other address has not been explained by the accused. This is the defence of the accused himself that in 2002, he alongwith Shivraj Singh took a house on rent and he started living with him there. If we believe this defence of the accused, then this conduct of the accused also raises a doubt and suspicion on the behaviour of accused. Moreover prior to examination of DW5, no such suggestion has been given to the prosecution witnesses during their cross examination and it seems to be an after thought story.
88. PW16 Ashraf Ali is one more witness who stated that the telephone number 3953497 belongs to PCO of Hindu Rao Hospital. The call is thus made from PCO of Hindu Rao Hospital also stands proved. PW18 is ASI Rajbir Singh who alongwith the IO and other police officials arrested the accused. He has duly proved the disclosure statement made by accused as Ex. PW18/C. He further stated that accused got recovered a plastic tarpaulin of black colour , one wooden ladder, one scooter and 329 ICards S.C. No.: 41/2010 56/61 of MCD which were blank and 7 rubber stamps. The witness from the MCD has already stated that though the seal impressions are same to that of MCD but they are not the original seals.
89. PW 28 is Azad Singh, UDC from Care Taker Branch who stated that the ICards shown to him by the IO were forged one . In his statement U/s 313 Cr.P.C., the accused has stated that nothing was recovered from him, neither the blank ICards of MCD or the rubber stamps or the Tripal. No explanation is forthcoming from the accused as to why the IO would plant the ICards in such a huge quantity upon the accused or why rubber seals shall be planted upon the accused by the IO. The recovery of blank I Cards or the rubber stamps are the connecting evidence since as per the prosecution, the accused used to allure the people to get them employed in the MCD or to get them loan sanctioned from the government departments and in lieu of that he used to extort the money from innocent persons. The impressions of the rubber stamps Ex. PW18/F has also been duly proved by the prosecution. Accused has stated in his statement U/s 313Cr.P.C. that the blank rubber stamps and ICards have been planted upon him. But why the IO would plant the same upon the accused has not been explained by him.
90. So far as PW19, PW20, PW21, PW22, PW23, PW24, PW26, PW27, PW28 and PW29 are concerned then they are the link witnesses of the case and have duly supported the case of prosecution. S.C. No.: 41/2010 57/61
91. PW35 and PW36 are the IOs and nothing material has come out of their cross examination.
92. PW37 is Dr. S.K. Lahiri who conducted the polygraph test upon the accused. He stated that he received a letter from SHO P.S. Subzi Mandi for polygraph examination of one suspect in case FIR No. 286/02. The suspect was examined on polygraph and after examination, he submitted his report Ex. PW24/A. PW37 has been cross examined and in his cross examination, this witness has stated that the questions which were asked by him from the accused Sheeshpal were on the basis of statement of accused and the available records. He stated that there were copy of FIR alngowith the statement of complainant as well as the statement of one Smt. Asha. He has also duly described the procedure for polygraph test. Though the report of polygraph test is not a substantive piece of evidence but it is a corroborative piece of evidence and can be used to corroborate the other material evidence or particulars against the accused. In the present case, the polygraph test is one more evidence against the accused regarding his behaviour with respect to missing of girl Laxmi. Since beginning till the end, accused has not admitted that said Laxmi was with him despite the fact that his wife has admitted this fact. Accused has stated that PW Mohina has enmity with him as he has property dispute with her. He has denied that she had seen the deceased Laxmi when she was brought by him at his house. Regarding the killing and keeping of the body in Tripal also, the accused has denied. He has stated that he never took the police officials to Yamuna S.C. No.: 41/2010 58/61 River near ISBT where he had disposed off the body in Yamuna River. The polygraph test though is a weak type of evidence and cannot be used to convict or acquit the accused but the mere fact that it is a weak type of evidence, does not establish the fact that this evidence can be thrown away without looking into the same. In the present case if cumulative effect of all the evidence against the accused alongwith polygraph test is taken then, it stands proved that it was the accused who forcibly took away the girl Laxmi from her parent's house and thereafter the girl went missing from the house of accused. Till date, accused has not been able to offer any satisfactory explanation regarding the missing of that girl Laxmi. It was his duty to look after the girl once the girl came to his house but for obvious reasons, the accused is not able to offer any satisfactory explanation.
93. In the present case, so far as the motive is concerned, though the witnesses have stated about the conduct of accused but the motive has not been fully proved by the prosecution as the ingredients of section 376 IPC have not been proved by the prosecution beyond reasonable doubt.
94. It has been held in 2009 Cr. L. J (NOC) 526 (Guahati) that " Murder trial Absence of proof of motive - Effect - Prosecution case, held would not become doubtful in view of enough clinching evidence pointing towards guilt of accused".
95. Thus, absence of the proof of motive in Criminal case does not shatter the case of prosecution, if otherwise the prosecution has been able to establish its case against the accused beyond reasonable doubt.
96. Thus, motive of the rape of deceased girl has not been proved by S.C. No.: 41/2010 59/61 the prosecution against the accused beyond reasonable doubt but that itself does not weaken the case of prosecution against the accused except for the fact that prosecution has not been able to prove the ingredients of section 376 IPC against the accused. Thus, so far as section 376 IPC is concerned, prosecution has not been able to prove the fact that accused committed rape upon the deceased before committing her murder. It is admitted fact that dead body in the present case has not been recovered till date and in the absence of any scientific or forensic evidence, the only evidence within the reach of prosecution was the testimony of the wife of accused but this witness has not supported the case of prosecution in this regard. Thus, so far as section 376 IPC is concerned then prosecution has failed to prove the same.
97. From the testimony of PW4, PW9 and PW3, it stands proved that the accused forcibly took away the girl Laxmi from her parent's house with the consent of her parents. From the testimony of PW2, it also stands proved that she heard the cries of a girl coming out from the house of accused in the month of September 2002 and when on the next day, she asked Asha, the wife of accused about the same, Asha started weeping and kept mum. As per the testimony of Asha herself, she left the house of her husband even without telling her husband. The conduct of Asha also creates a doubt as to why she left the house of her husband and did not return for more than one year after the missing of girl Laxmi. PW15 subsequently in the morning of 1.10.2002 visited the house of accused and found blood stains near hand pump and also the polythene packets covered with tripal on the parchatti of S.C. No.: 41/2010 60/61 the house of accused and when he touched the same, he found pieces of flash inside it. Thus, all the circumstances proved on record by the prosecution only points out towards the guild of accused.
98. In view of the abovesaid discussion, prosecution has failed to proved its case against the accused U/s 376 IPC beyond reasonable doubt. As such, accused is acquitted of the offence U/s 376 IPC. Prosecution has been duly able to prove its case against the accused U/s 363/302/201 IPC. As such, accused is held guilty and convicted for the offence U/s 363/302/201 IPC.
(MADHU JAIN) Additional Sessions Judge03 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 12.7.2010 S.C. No.: 41/2010 61/61