Delhi District Court
State vs Seeshpal, S/O. Attar Singh, on 5 October, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 0I : NORTH EAST / KARKARDOOMA
COURTS: DELHI.
FIR No. 175/2010
State Vs Seeshpal, S/o. Attar Singh,
1. R/o. Village Vana, PSIncholi, Tehsil
Mawana, Distt. Meerut, U.P.
Police Station Harsh Vihar
Convicted under section 363/376/302/201 IPC
ORDER ON SENTENCE:
05.10.2013
Pre: Ld. APP for the State.
Convict Seeshpal produced from JC.
Ms. Mohini, proxy for ld. Amicus Curiae for convict.
Arguments heard on point of sentence. Ld. APP for the State submits that since
prosecution has proved its case against convict Seeshpal for offence u/s
363/376/302/201 IPC. Ld. APP further submits that convict be awarded severe
punishment as he had committed a heinous crime against a minor child. Hence, he has
prayed for maximum sentence to the convict.
On the other hand, proxy for ld. Amicus Curiae for convict prayed that convict
is 48 years old and is facing trial regularly. Proxy for Ld. Amicus Curiae for convict
further submits that convict is in JC since inception of the case and stated that convict
belongs to a poor family and he is having responsibility of his family and convict is
SC No.16/2011
State v. Seeshpal 1/3
not a previous convict in any case. Proxy for Ld. Amicus Curiae for convict has
requested for lenient view and requested to release the convict for a period already
undergone.
Arguments heard. Record perused. From perusal of record, it is revealed that it
has been proved that accused Seeshpal had kidnapped the minor girl and murdered her
following the rape. Since convict was the uncle of victim i.e. brother of her father and
it was expected from him that he would have taken care of the victim but he acted
adversely from his responsibility. From the act of convict it has been established that
he had lost the faith of society and represented himself as a criminal in the society
which is against the humanity and society for which he does not deserve for any
leniency.
After considering the fact and circumstances of the present case, perusal of case
and considering the age of convict and responsibility of his family, this court by taking
a lenient view, comes to the conclusion that ends of justice will be met if the convict
Seeshpal is sentenced for 07 years R.I. for the offence u/s 363 IPC and fine of
Rs.5,000/ in default R.I. for one month, and is sentenced for life imprisonment
for the offence u/s 376 IPC and fine of Rs.5,000/ in default R.I. for one month,
and is sentenced for life imprisonment for the offence u/s 302 IPC and fine of
Rs.5,000/ in default R.I. for one month, and is sentenced for 03 years R.I. for the
offence u/s 201 IPC and fine of Rs.2,000/ in default R.I. for 15 days.
All the sentences shall run concurrently. Benefit of section 428 Cr. P.C. be also
given to the convict. Fine not paid.
SC No.16/2011
State v. Seeshpal 2/3
Copies of the judgment along with sentence order be given to the convict free of
cost forthwith. File be consigned to record room.
Since case against accused has been proved and he has been sentenced
accordingly, hence, parents of deceased are entitled for compensation. They may
approach DLSA for appropriate compensation.
PRONOUNCED IN THE OPEN
COURT ON THIS 05.10.2013. (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI.
SC No.16/2011
State v. Seeshpal 3/3
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0060502011
Sessions Case No. 16/2011
Assigned to Sessions. 07.03.2011
Arguments heard on 18.09.2013
Date of Judgment 27.09.2013
FIR No. 175/2010
State Vs Seesh Pal, S/o. Attar Singh,
2. R/o. Village Vana, PSIncholi, Tehsil
Mawana, Distt. Meerut, U.P.
Police Station Harsh Vihar
Under Section 363/376/302/201 IPC
JUDGMENT
1. Prima facie unfolded story of prosecution is that on 25.11.2010, complainant Pinki reached at police station Harsh Vihar and recorded her statement regarding missing of her daughter/victim, aged about 3 ½ years from her house to SI Mahesh Kumar. SI Mahesh Kumar had got recorded her statement Ex.PW2/A and upon her statement FIR No.175/2010 Ex.PW1/A u/s 363 IPC was registered. The investigation of the case was assigned to Inspector Dheeraj. Thereafter, Inspector Dheeraj along with his staff and the complainant visited the place of kidnapping i.e. front of house No. B1/930, Harsh Vihar, Delhi and in the meantime one lady namely Smt. Nemwati had disclosed that she had seen accused Seeshpal taking the SC No.16/2011 State v. Seeshpal 4/3 victim away sometime around noon or 1:00 p.m. towards the school and her statement was recorded in this regard. Inspector Dheeraj Singh had filled up missing persons form Ex.PW9/A and had sent messages through different forums throughout India. During the course of investigation, police had arrested accused Seeshpal and filed challan vide FIR No.175/2010 dated 25.11.2010 u/s 363/376/302/201 IPC for the prosecution of accused Seeshpal in the court of Ld. MM. Since section 207 Cr. P.C. has already been complied by Ld. MM. Since, this court being designated court for trial of the cases pertaining to child victims, hence, this case was sent by Ld. District & Sessions Judge, North East District, Karkardooma Courts, Delhi to this court for trial.
CHARGE:
2. On the basis of material available on record, this court vide order dated 17.03.2011 framed a charge against accused Seeshpal for the offence punishable u/s 363/376/302/201 IPC to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
3. In order to prove its case prosecution has examined 21 witnesses namely PW1 SI Mahesh Kumar, PW2 Smt. Pinki, PW3 Smt. Nemwati, PW4 S.I. U. Balashankaram, PW5 Ct. Shyam Lal, PW6 SI Pratap Singh, PW7 HC Hardayal Singh, PW8 Dr. Meghali Kelkar, PW9 Inspector Dheeraj Singh, PW10 Gautam, PW11 Dr. Devender Kumar, PW12 HC Sunil Kumar, PW13 Inspector K.K. Upadhyay, PW14 Ct. Rahul, PW15 Lady Ct. Parmila, PW16 Sh. Ravinder, PW17 SC No.16/2011 State v. Seeshpal 5/3 Sh. Heera Lal, PW18 Sh. Chhatarpal Singh, PW19 Satyabir Singh, PW20 SI Mukesh Kumar Jain and PW21 W/Ct. Priyanka.
4. PW1 SI Mahesh Kumar is the Duty Officer and he deposed that on 25.11.2010 he was posted at police station Harsh Vihar and was on duty from 4:00 p.m. to 12:00 night and at about 7:30 p.m., complainant Smt. Pinki w/o Sh. Mahipal came to his room and gave her statement regarding missing of her daughter/victim, aged about 3 ½ years from 24.11.2010. This witness has got recorded FIR Ex.PW1/A and copy of FIR was assigned to Inspector Dheeraj Kumar for investigation.
5. In his cross examination by Sh. Mohd. Hassan, Amicus Curiae for accused, this witness had denied to the suggestion that FIR is antedated and antetime.
6. PW2 Smt. Pinki is the mother of victim. This witness is a material witness being complainant. This witness has deposed that accused Seeshpal is known to her being the cousin of her husband. This witness had further deposed that she has three daughters and on 24.11.2010, she along with victim had gone to the house of her maternal fatherinlaw Sh. Satbir Singh at House No. B1/930, Harsh Vihar, Delhi and victim was playing in the Gali in front of house of Satbir when they returned to their house and her brother in law Tulsi Das has assured her that he will leave her daughter/victim at their house after some time.
7. This witness further deposed that Smt. Tarawati came at her house and told her that her daughter/victim is missing from Gali. She and other family members had made search of victim here and there in the area of Harsh Vihar, Sunder Nagari and Gagan SC No.16/2011 State v. Seeshpal 6/3 Vihar, but no clue came forward and on next day, she reached at police station Harsh Vihar at about 7:30 p.m. and got recorded her statement Ex.PW2/A regarding missing of her daughter/victim. This witness has stated that at the time of missing of victim, she was wearing pink colour Pajama and pink colour top. Thereafter, she along with three police officials had reached at the spot from where victim was found missing i.e. Gali, in front of house of Satbir Singh. There one Nemwati who is neighbpur of Satbir Singh had come at the spot and she told to police that she had seen the victim at about 12:00 noon on 24.11.2010 taking away by accused Seeshpal. Police had searched victim upto 10:00 p.m. on 25.11.2010 but no clue came forward on that day.
8. On 29.11.2010, in the noon time police officials had told to them that accused Sheesh Pal is in their custody and on the same day, it came into her notice from her devar that dead body of victim had been recovered.
9. This witness has correctly identified the clothes which had been worn by deceased on the day of incident. Pajami of deceased is Ex.P2, pink top Ex.P3 and grey high neck is Ex.P5.
10.In her cross examination by ld. Amicus Curiae for accused, this witness had denied to the suggestion that she had not mentioned the name of Satbir Singh and his wife Smt. Tarawati and of Sh. Tulsidas in the FIR as she was in connivance with them to save them that is why she had got recorded the FIR on 25.11.2010. Smt. Nemwati had told her that she had seen the accused taking victim with him before registration SC No.16/2011 State v. Seeshpal 7/3 of FIR. This witness further stated that accused Seeshpal had been residing in his neighbour in a tenanted room in the house of Rakesh Gurjar for last 1 ½ year and accused was on visiting terms at their house and was having sweet relations with her fatherinlaw, Sh. Vedpal. This witness further stated that she had heard about the bad character of accused and she also had noticed his bad character on one or two occasions during the period of 1 ½ years. Smt. Poonam, her sisterinlaw (nanad), who resides in Nathupura, Delhi, had also objected about the entry of accused at her house during her stay with her and she could not object personally as accused was her Jeth in relation. This witness had denied to the suggestion that victim was not able to identify the accused or that relations between her husband and accused were not cordial. This witness had denied to the suggestion that she had deposed against the accused at the instance of Satbir, his wife Tarawati, Tulsidas and Sh. Vedpal and other relatives due to family enmity or that Smt. Nemwati is false and fabricated witness being her friend.
11.This witness was cross examined by Ld. APP for the State as she was suppressing some material truth. In her cross examination by ld. APP for the State, this witness stated that she does not remember whether police had recorded statement of any other person except Smt. Nemwati in her presence at the spot. This witness admits that she had not mentioned the name of accused in the FIR because PW Nemwati had not met her by that time.
12.PW3 Smt. Nemwati. This witness deposed that Satbir Singh is her neighbour and Smt. Pinki w/o Mahipal is known to her as she used to visit along with her daughters SC No.16/2011 State v. Seeshpal 8/3 at the house of her neigbour Satbir Singh. This witness further stated that accused Seeshpal present in the court correctly identified is also known to her being the nephew of her neighbour Satbir Singh. This witness further stated that on 25.11.2010, she had seen 34 police officials along with Smt. Pinki at about 7:30 p.m. or 8:00 p.m. standing in their gali, in front of house of Satbir and it came into her notice that they were talking with each other regarding victim, aged about 3 ½ years and she had told to police at that time in the presence of Smt. Pinki that she had seen accused present in court taking away by saying that "toffee dilwaunga" to victim at about 12:00 noon on 24.11.2010 towards school by holding her hand from the place in front of the house of Satbir Singh.
13.In her cross examination by ld. Amicus Curiae, this witness denied to the suggestion that Smt. Pinki is her friend and she had been residing as tenant in a room of House No. B1/929, Gali No.34, Harsh Vihar, Delhi and there is 15 minutes walking distance between her house and house of Smt. Pinki. This witness stated that police officials had made some inquiries from other public persons including Jagpal, Sukhbir etc. who are her neighbours and are residing in House No.1/931, Gali No.34, Harsh Vihar, Delhi. This witness had voluntarily stated that some persons were playing cards in the vacant plot, in front of her house, they had also seen taking away of victim by accused.
14.This witness further stated that she had told to police in her statement that on 25.11.2010, she had seen 3 4 police officials along with Smt. Pinki at about 7:30 p.m. or 8:00 p.m. standing in their gali, in front of house of Satbir and that it had SC No.16/2011 State v. Seeshpal 9/3 come into her notice that they were talking with each other regarding the victim, aged about 3 ½ years. This fact was confronted with statement Ex.PW3/DA where it is not so recorded in this manner.
15.This witness further stated that she had told to police in her statement that on 24.11.2010 she had seen accused taking away victim towards school by holding her hand from the place, in front of the house of Satbir Singh. This fact was confronted with statement Ex.PW3/DA where it is not so recorded in this manner, however, it is recorded that she had seen accused taking away victim to get her toffee by him.
16.This witness further stated that she cannot tell about the colour of wearing clothes of deceased and accused had covered himself with a matiala colour blanket and she had not seen accused while doing any wrong act with deceased. This witness further stated that she cannot say where deceased was taken by accused or by anyone else. This witness had denied to the suggestion that she had given her statement to police after though next day at the instance of Smt. Pinki and her family as there were enemical relations between the accused and family of Smt. Pinki.
17.PW4 S.I. U. Balashankaram. This witness has proved his SOC report vide Ex.PW4/A.
18.PW5 Ct. Shyam Lal, Photographer, Crime Team, North East District, Delhi. This witness is the photographer who had taken 21 photographs from different angles of the dead body and spot where dead body was lying and blood stains were noticed. SC No.16/2011 State v. Seeshpal 10/3 This witness has proved photographs Ex.PW5/A1 to PW5/A21 and negative vide Ex.PW5/B.
19.PW6 SI Pratap Singh. This witness had joined the investigation of present case on 29.11.2010 along with I.O./Inspector K.K. Udadhyay, Lady Ct. Priyanka and Ct. Kavender and they had searched the suspect Seeshpal and kidnapped minor girl age about three years. At the instance of secret informer, they reached near temple at Kansal marg and apprehended accused Seeshpal. This witness has proved arrest memo Ex.PW6/A, personal search memo Ex.PW6/B and disclosure statement Ex.PW6/C of accused Seeshpal.
20.This witness stated that accused Seeshpal revealed in his disclosure statement that he can get recover dead body of deceased and can pointed out the place where he committed crime. Accused lead them at Anand Green Nursery from the place of broken wall of nursery and pointed out the dead body which was lying near the beri tree at a distance of 3235 steps from the broken wall. In his presence, I.O. had called crime team officials and information regarding recovery of dead body of victim was passed on to the complainant and his family and Ravinder, uncle of deceased came at aforesaid nursery and he had identified the dead body.
21.This witness has proved photographs vide Ex.PW5/A1 to Ex.PW5/A21 available on file which are depicting the aforesaid nursery and dead body. In his presence, I.O. had prepared pointing out cum recovery memo of dead body of victim vide Ex.PW6/D. In his presence, SOC report Ex.PW4/A was prepared by crime team SC No.16/2011 State v. Seeshpal 11/3 incharge.
22.In his presence, I.O. had lifted blood smeared earth as sample and earth control from the place near beri tree and converted the same into two separate parcels which were seized by the I.O. vide seizure memo Ex.PW6/E. In his presence, I.O. had prepared site plan of place of recovery of dead body vide mark 'T'.
23.In his presence, I.O. had prepared pointing out memo Ex.PW6/F at the instance of accused and accused was got medically examined vide MLC mark 'S'. In his presence, doctor had taken sealed wearing underwear of accused, blood of accused as sample which were delivered to Ct. Kavender along with sample seal after medical examination and same were also seized by I.O. vide seizure memo Ex.PW9/G.
24.This witness has correctly identified the clothes of deceased i.e. Pajami vide Ex.P2, pink top vide Ex.P3 and grey high neck vide Ex.P4 respectively which had been seen at the time of recovery of dead body at the instance of accused.
25.In his cross examination by ld. Amicus Curiae, this witness stated that secret informer had met them at Kansal Marg, Harsh Vihar at about 11:40 a.m. This witness further admits that Kansal Marg is in a thickly populated area and public persons were coming and going on Kansal Marg at that time and no public persons had joined investigation of this case despite the request of I.O. at the time of arrest of accused.
SC No.16/2011 State v. Seeshpal 12/3
26.This witness further stated that I.O. had prepared arrest papers of accused while sitting at police booth, Kansal Marg. Complainant had been residing at some distance ahead from Kansal Marg during that time. This witness had denied to the suggestion that he had never joined investigation of this case or that victim and accused were not searched by them or that accused was not arrested from the place, near Kansal Marg or that accused did not make any disclosure statement or that accused did not lead them to Nagpal Farm House or that no recovery of dead body was effected at the instance of accused or that accused had not pointed out any place in Harsh Vihar or that PW Ravinder had not joined any proceedings of this case in his presence or that I.O. had obtained thumb impression of accused on some papers at police station or that all the writing work was done later at police station or that he had put her signature as a witness on the documents of this case at police station at the instance of I.O. This witness further denied to the suggestion that accused has been falsely implicated in the present case at the instance of complainant and her family members as there were enmical relations between the accused and the family of complainant.
27.PW7 HC Hardayal Singh. This witness is the MHC(M). This witness has proved the entries of case property in the register No.19 vide Ex.PW7/A and Ex.PW7/B.
28.On 15.12.2010 sealed parcels along with two sample seals, forwarding letter etc. were sent to FSL, Rohini, Delhi, for analysis on the request of I.O. through Ct. Rahul vide RC No.98/21/10 and this witness has issued aforesaid road certificate. This SC No.16/2011 State v. Seeshpal 13/3 witness has proved the copy of RC No.98/21/10 vide Ex.PW7/C. This witness has also made endorsement in register No.19 to this effect vide Ex.PW7/A. On the same day, Ct. Rahul had handed over receipt to him regarding depositing the aforesaid sealed parcels vide Ex.PW7/E.
29.PW8 Dr. Meghali Kelkar, Senior Demonstrator, UCMS & GTB Hospital, Delhi. This witness has proved her detailed postmortem report vide Ex.PW8/A and opined cause of death asphyxia as a result of antemortem manual strangulation. This witness stated that five inquest papers were initialed and numbered by her vide Ex.PW8/B1 to Ex.PW8/B5.
30.In her cross examination by ld. Amicus Curiae, this witness stated that there is chances of detecting semen in vaginal and anal after five days and can be detected, however, chances may be decreased due to putrefaction.
31.PW9 Inspector Dheeraj Singh. This witness is the first investigating officer. This witness has deposed that on 25.11.2010 he was posted at police station Harsh Vihar as Addl. SHO and investigation of this case was assigned to him by the oral order of SHO and on that day, at about 9:00 p.m., copy of FIR Ex.PW2/A was delivered to him by DO/SI Mahesh Kumar.
32.During the course of investigation, this witness along with lady Ct. Promila and complainant Smt. Pinki had reached at the place of kidnapping of victim i.e. in front of H. No. B1/930, Gali No.34, Harsh Vihar, Delhi and there he had recorded SC No.16/2011 State v. Seeshpal 14/3 statement of Smt. Nemwati, supplementary statement of complainant and statement of Satvir, maternal fatherinlaw of complainant.
33.During the course of investigation, on 26.11.2010, this witness had filled up missing persons form vide Ex.PW9/A in connection of missing of victim of present case and on the same day, he had also filled up W.T. Message form in connection of present case to pass on the information regarding missing victim to the concerned police officials throughout India.
34.In his cross examination by ld. Amicus Curiae for accused, this witness stated that he had not prepared site plan of place of kidnapping. This witness had denied to the suggestion that it had come into his notice that on 24.11.2011, accused had kidnapped victim. This witness admits that he had not mentioned the name of accused in W.T. message form on 26.11.2011 and he had filed W.T. Message form regarding missing of victim, hence, details of accused were not necessary.
35.PW10 Gautam. This witness had identified the dead body of victim vide Ex.PW2/B4 and proved receipt of dead body vide Ex.PW10/A.
36.PW11 Dr. Devender Kumar, CMO GTB Hospital, Delhi, deputed by M.S., GTB Hospital for Dr. Prem. This witness has proved MLC of accused vide Ex.PW11/A on behalf of Dr. Prem.
SC No.16/2011 State v. Seeshpal 15/3
37.PW12 HC Sunil Kumar. This witness along with Ct. Kavinder and Sh. Ravinder, uncle of victim had gone to village Bana, P.S. Incholi, District Meerut, U.P. in search of accused Seeshpal and made search of accused Seeshpal in the village but his presence could not be produced there.
38.PW13 Inspector K.K. Upadhyay. This witness is the I.O. This witness had taken investigation of this case on 29.11.2010. During the course of investigation, he along with S.I. Pratap, Ct. Kavinder and lady Ct. Priyanka reached near Kansal Marg, Harsh Vihar and on pointed out of secret informer he had apprehended the accused. Accused was interrogated and he had made his disclosure statement vide Ex.PW6/C. Thereafter, he was arrested vide arrest memo Ex.PW6/A. This witness had called private videographer who had prepared videography of the investigation regarding leading to the place of recovery of dead body at the instance of accused at Anand Green Nursery, Nagpal Farm House, Govind Dham. This witness had inspected the place and notice one dead body on the pointing out of accused under the beri tree and that pajami of victim was down towards knee and noticed some multiple injury marks on face, neck and private part of victim and noticed blood stains on ground nearby the dead body.
39.This witness had called S.I. U. Balashankaram, Crime Team Incharge who had prepared SOC report vide Ex.PW4/A. This witness had recorded the statements of Heera Lal and Om Prakash, chowkidars and crime team officials. Accused had led this witness and other officials to the place of kidnapping i.e. in front of House NO.B1/930, Gali No.34, Harsh Vihar, Delhi and pointed out the same and prepared SC No.16/2011 State v. Seeshpal 16/3 pointing out memo Ex.PW6/F at the instance of accused. Thereafter, this witness had taken accused to GTB Hospital for his medical examination where he was medically examined vide MLC Ex.PW11/A. This witness had seized wearing underwear of accused and his blood as sample vide seizure memo Ex.PW6/G. This witness had recorded the statement of Gautam and Ravinder in connection of identification of dead body. This witness had collected postmortem report.
40.On 21.12.2010, this witness along with S.I. Mukesh Kumar Jain, Draughtsman reached at the place of recovery of dead body where he had inspected the spot and he had taken rough notes and measurements of the spot and prepared the scaled site plan vide Ex.PW13/D. This witness had collected DNA report.
41.In his cross examination by ld. counsel for accused, this witness had denied to the suggestion that HC Sunil along with Ct. Kavinder never gone to native place of accused Seeshpal.
42.PW14 Ct. Rahul. This witness on 15.12.2010 had taken five sealed parcels containing exhibits, two sample seals and forwarding letter vide road certificate No.98/21/10 from the custody of MHC (M) of police station Harsh Vihar to FSL, Rohini and deposited the same at FSL, Rohini. This witness has prove the photocopy of receipt vide Ex.PW7/E.
43.PW15 Lady Ct. Parmila. This witness had joined the investigation of this case with Inspector Dheeraj Singh on 25.11.2010 at about 8:30 p.m. and she along with him SC No.16/2011 State v. Seeshpal 17/3 and complainant left the police station and reached at the spot i.e. in front of house i.e. H. No.B1/930, Harsh Vihar, Delhi. In his presence, I.O. had recorded statements of Smt. Nemwati, Satbir and supplementary statement of complainant Smt. Pinki.
44.In her cross examination by ld. Amicus Curiae for accused, this witness had denied to the suggestion that she never joined investigation of this case or that she did not got to spot along with complainant or that I.O. did not interrogate anyone at the spot or that no statement of any witness was recorded at the spot or that no one told them about taking away the victim or that they had not made any search of victim and accused.
45.PW16 Sh. Ravinder. This witness is the brother of father of victim. This witness had stated that on 21.11.2010 his brother Mahipal had sustained injuries in a vehicular accident and after some days of aforesaid accident accused Seeshpal had come to meet his elder brother. This witness further stated that on 25.11.2010 it come into his notice from Smt. Nemwati that accused had taken his niece (deceased), 4 years old at about 11:00 a.m. on 24.11.2010 from the place in front of his maternal uncle Sh. Satbir. They searched victim here and there but in vain. His relative had lodged missing report at police station on receiving information from Smt. Nemwati, he and his relatives had visited native place of Seeshpal on 27.11.2010 but he was not present there.
46.On 29.11.2010, this witness was called by SI Pratap Singh at Nagpal Form, Bhopura, U.P. where he noticed some police officials with cameraman. When he reached SC No.16/2011 State v. Seeshpal 18/3 there some police officials along with accused was present there and S.I. Pratab Singh had shown him the dead body of victim, aged about 4 years. This witness had identified the dead body of victim.
47.In his cross examination by ld. counsel for accused, this witness had stated that Smt. Nemwati had not told any fact in his presence. This witness further stated that inside form its employee were also present when he reached there.
48.PW17 Sh. Heera Lal. This witness is the caretaker of Nagpal Form House. On 29.11.2010, he was present at aforesaid form house and on that day he had seen 45 police personnel including lady police near the form house. Accused Seeshpal was one of the two persons who were in civil dress. Accused Seeshpal had led the the police inside the jungle and got recovered a dead body of a female child, aged about 4 years from the bushes. This witness further stated that dead body was lying in the bushes of sarkanda.
49.In his cross examination by ld. Amicus Curiae, this witness had stated that he had gone at the place of recovery of dead body of his own and at the time of recovery of dead body one lady police official along with other police officials. This witness had denied to the suggestion put by Ld. APP for the State that dead body was not recovered in his presence and that he has deposed about the recovery of dead body at the instance of police.
50.PW18 Sh. Chhatarpal Singh. This witness is the videographer. On 29.11.2010 this SC No.16/2011 State v. Seeshpal 19/3 witness was called by one police official to make videography. This witness had accompanied him and reached at Kansal Marg police booth where police gypsy was found stationed and some police officials and accused Seeshpal present in the court was found sitting inside the gypsy. He had also made sit inside the gypsy when they reached at Tila More Choki, accused led the police party towards the Loni in Anand Green Nursary, Govind Dham, near Nagpal Farm House. There accused had led the police party towards the bushes near 'Beri ka Ped' and accused pointed out the place where dead body of a female child, aged about 3 years was lying. This witness had noticed that pajami of deceased was half down and some grass was wrapped on he face.
51.This witness had prepared a CD of the videography and on 07.12.2010 he handed over the same to police and it was seized vide memo Ex.PW13/C. This witness has proved CD vide Ex.P7 and original DVC vide Ex.P8.
52.In his cross examination by ld. Amicus Curiae for accused, this witness had denied to the suggestion that there is no recording of videography either in Ex.P7 or in Ex.P8.
53.PW19 Satyabir Singh. This witness has deposed that in the year 2010, he used to reside in Gali No.34, Harsh Vihar, Delhi. This witness further stated that deceased was the daughter of his Bhanja namely Mahipal and Mahipal used to reside in A Block which was situated at some distance from his house at that time and deceased was in visiting terms at his house.
SC No.16/2011 State v. Seeshpal 20/3
54.On 24.11.2010, deceased had visited her house and had left at about 12:00 noon and thereafter, she could not be found and they had searched for the deceased but she could not be found and thereafter, the matter was reported to police. Smt. Nemwati, residing in her neighbourhood, had told him that she had seen the Seeshpal while taking the deceased with him on 24.11.2010.
55.PW20 SI Mukesh Kumar Jain, Draughtsman, North East District, Delhi. This witness has proved scaled site plan vide Ex.PW13/D.
56.PW21 W/Ct. Priyanka. This witness on 29.11.2010 had joined the investigation of this case along with Inspector K.K. Upadhyay, Ct. Kavinder and S.I. Pratap and reached at Kansal marg. Accused Seeshpal present in the court today was with the I.O. One private videographer was also called at the spot and after that police team along with accused and the said private videographer went to Tilla More Chowki and after that from there they went to Anand Green Nursery Farm, Govind Dham, Bhopura and she was instructed to remain in police vehicle and I.O. withpolice staff and videographer as well as accused went there and after some she was called by the I.O. inside the farm house. One dead body of a female child aged about 34 years was lying under a berry tree among the sarkandas. Crime team was called by the I.O. The custody of dead body was handed over to her and on the direction of I.O. this witness took the dead body to GTB Mortuary and it was got preserved.
57.On 30.11.2010, the dead body was identified by Ravinder and Gautam. After SC No.16/2011 State v. Seeshpal 21/3 postmortem the doctor concerned had handed over her two sealed parcels sealed with the seal of MK containing clothes of deceased and sexual assault collection kit along with its sample seal and same were taken into possession vide seizure memo Ex.PW13/B.
58.In her cross examination by ld. Amicus Curiae, this witness had denied to the suggestion that no videographer was called at the spot or that she not seen the accused lead the police team towards tila mor chowk. Thereafter, P.E. was closed. STATEMENT OF ACCUSED U/S 313 CR. P.C.:
59.After prosecution evidence, statement of the accused u/s 313 Cr. P.C. was recorded where accused denied all the allegations and circumstances put to him. Accused Seeshpal claimed that he is innocent and falsely implicated in the present case and he had not led the police to any place, nor he had pointed out any dead body and no dead body had been recovered at his instance. Accused further claimed that he had been falsely implicated in this case due to previous enmity between him and the family of the victim. Accused had not preferred to lead any defence evidence.
60.Thereafter, case was listed for final arguments.
ARGUMENTS
61. Ld. APP for State has submitted that there are charges for the offences u/s 363/376/302/201 IPC against accused Seeshpal.
SC No.16/2011 State v. Seeshpal 22/3
62.Ld. APP for the State has argued that statement of PW Smt. Nemwati and parents of victim have supported the case of prosecution.
63.Ld. APP further submitted that I.O. and others PWs namely Ct. Priyanka, PW14 are the witnesses of recovery of dead body.
64.Ld. APP further submitted that W19 is the witness of fact that victim was in front of his house and accused had taken her. PW9 Inspector Dheeraj Singh. He had recorded statement of PW Smt. Nemwati during investigation. This PW had visited place of kidnapping of victim.
65.Ld. APP further submitted that DNA is not conclusive but does not hit the case of prosecution. Since the victim had been seen in the company of accused and her dead body had been recovered at the instance of accused. Hence, it was accused who raped and murdered the victim.
66.Ld. APP further submitted that PW8 had stated that sign of sexual assault were present on the dead body at the time of postmortem. PW8 had opined time since death five days and death was caused on 24.11.2010 itself.
67.Ld. APP further submitted that family of victim are known to accused. PW Smt. Nemwati had seen accused while taking the victim. From the testimony of PWs i.e. PW2 Complainant and PW3 Nemwati and other related material witnesses, it has been established that it was the accused who had taken the victim on 24.11.2010 and SC No.16/2011 State v. Seeshpal 23/3 her dead body was recovered from the place near Nagpal Farm House at the instance of accused on 29.11.2010. There are no circumstances which throw any doubt upon the case of prosecution.
68.Ld. APP further submitted that it was accused who had kidnapped and murdered the victim. Further postmortem report suggest that victim was raped and given multiple beatings before murder.
69.On these grounds, Ld. APP for the State has submitted that prosecution has proved its case u/s 363/376/302/201 IPC against accused Seeshpal beyond reasonable doubt.
70.On the other hand, Ms. Mohini, proxy counsel for Ld. Amicus Curiae for accused Seeshpal submits that this is the case of last seen.
71.Proxy counsel for Ld. Amicus Curiae further submits that accused had remained in Delhi and if he would have committed any crime he must have left the area.
72.Proxy counsel for Ld. Amicus Curiae further submits that place of recovery of dead body is far away from the house of accused.
73.Proxy counsel for Ld. Amicus Curiae further submits that there is no witness of rape and murder of victim and no witness of arrest of accused. On these grounds, ld. Amicus Curaie for accused has prayed for acquittal of accused Seeshpal from the charges.
SC No.16/2011 State v. Seeshpal 24/3 PERUSAL OF RECORD AND OPINION:
74.Arguments heard. Record perused. On perusal of record it is revealed that on 24.11.2010, Smt. Pinki along with her daughter, aged about 3 ½ years, victim & deceased in this case had gone to the house of her maternal fatherinlaw namely Sh. Satbir Singh at house number B1/930, Harsh Vihar, Delhi. The victim was playing in the street in front of the house of Satbir Singh in the day time when PW2 Smt. Pinki had returned to her house. Later on in the day time the wife of Satbir Singh namely Smt. Tarawati had found the victim missing from the street and thereupon she went to the house of Smt. Pinki to inform her about the same. Smt. Pinki along with her family members had searched for the victim on that day but she could not be found.
75.It is further revealed that on 25.11.2010, Smt. Pinki had made her statement Ex.PW2/A in the police station regarding missing of the victim. At the time of lodging missing report Smt. Pinki had stated in her statement, Ex.PW2/A, that the victim was wearing pink colour pajami and pink colour top. On the statement of the Smt. Pinki the present case vide FIR Ex.PW1/A was registered by SI Mahesh Kumar.
76.It is further revealed that on 25.11.2010 PW9 Inspector Dheeraj along with his staff and the complainant visited the place of kidnapping i.e. in front of house number B 1/930, Harsh Vihar, Delhi and in the meantime one lady namely Smt. Nemwati had disclosed him that she had seen accused Seeshpal taking the victim away sometime SC No.16/2011 State v. Seeshpal 25/3 around 12:00noon or 01:00pm towards the school and her statement was recorded in this regard vide Ex.PW3/D.
77.It is further revealed that on 26.11.2010, Insp. Dheeraj Singh had filled up missing persons form Ex.PW9/A and had sent messages through different forums throughout India. During the course of investigation Smt. Pinki had accompanied the police officials to the place from where victim went missing and in the meantime Smt. Nemwati had also come over there who was the neighbour of Satbir Singh.
78.It is further revealed that on 29.11.2010 while posted with P.S. Harsh Vihar, PW13 Insp. K.K. Upadhyay had received a secret information at about 11:40am that accused was present near a temple at Kansal Marg, Harsh Vihar, Delhi and thereupon he organized a raiding party comprising of police staff and reached near the temple at about 12:00noon and apprehended accused Seeshpal on the identification of secret informer and on interrogation he had made a disclosure statement Ex.PW6/C. Accused Seeshpal was arrested vide arrest memo Ex.PW6/A and his personal search was conducted vide memo Ex.PW6/B and pursuance of his disclosure statement accused led the Inspector K.K. Upadhyay and his team to a place at Anand Gram Nursery and pointed out the place, near a Beri tree at a distance of 3435 steps from the broken wall of aforesaid nursery and pointed out towards the dead body of a girl child, aged about 3 ½ years. It was noticed that the pajami of the victim girl was down towards knee and multiple injury marks were also on her face, neck and private parts.
SC No.16/2011 State v. Seeshpal 26/3
79.It is further revealed that the recovery proceedings of the dead body of the girl child (victim) had also been seen by PW17 Heera Lal who had joined in the raiding team by IO/Inspector K.K. Upadhyay and the entire proceeding leading to recovery of the dead body of the victim girl was also videographed by PW18 Sh. Chhatarpal Singh.
80.It is further revealed that PW18 Chhatarpal Singh had prepared the CD of videography which was seized by the IO vide seizure memo Ex.PW13/C. PW18 Chhatarpal had also produced the original DVC (digital video cassette) from which he had prepared the CD and had proved the CD as Ex.P7 and the original DVC is Ex.P8.
81.It is further revealed that dead body was seized vide seizure memocumpointing out memo Ex.PW6/D.
82.It is further revealed that PW4 SI U. Balashankaram had also inspected the scene of crime i.e. Anand Gram Nursery, near Nagpal Farm and Gopal Dham, Ghaziabad, U.P. and he had given his report Ex.PW4/A in this regard.
83.It is further revealed that PW5 Ct. Shyam Lal had also taken the 21 photographs of the scene of crime from different angles and proved the same i.e. Ex.PW5/A1 to Ex.PW5/A21 and negatives of the same are Ex.PW5/B1 to Ex.PW5/B21 respectively.
SC No.16/2011 State v. Seeshpal 27/3
84.It is further revealed that Insp. K.K. Upadhyay had also filled up the inquest form Ex.PW8/B2 and sent the dead body to the mortuary of GTB Hospital in the custody of lady Ct. Priyanka and SI Pratap for the preservation of the dead body. Insp. K.K. Upadhyay had also lifted the blood smeared earth and earth control from the spot and seized vide seizure memo Ex.PW6/E and Insp. K.K. Upadhyay had also prepared the site plan of the place of the recovery of the dead body Ex.PW13/A and indicated two places in it viz the place of rape and the place where the dead body was thrown after committing the rape.
85.It is further revealed that after completion of the proceedings at the spot, accused had led the Insp. K.K. Upadhyay and his team to the place of kidnapping i.e. in front of the H. No. B1/930, Harsh Vihar and pointed out the same and thereupon Insp. K.K. Ukpadhyay had prepared the site plan Ex.PW6/F.
86.It is further revealed that accused was medically examined vide MLC Ex.PW11/A and the doctor had opined that there was nothing to suggest that you were not capable of performing sexual intercourse and the exhibits collected during his medical examination were seized vide seizure memo Ex.PW6/G.
87.It is further revealed that Insp. K.K. Upadhyay had got the dead body of victim identified vide statements Ex.PW8/B4 and Ex.PW8/B5 and moved an application Ex.PW8/B1 for its postmortem.
SC No.16/2011 State v. Seeshpal 28/3
88.It is further revealed that the postmortem was conducted by the Dr. Meghali Kelkar vide postmortem report Ex.PW8/A in which she had opined the cause of death as 'Asphyxia as a result of antemortem manual strangulation'. Dr. Meghali Kelkar had also noted signs of recent vaginal anal penetration in her postmortem report.
89.It is further revealed that Insp. K.K. Upadhyay had seized the exhibits collected during the postmortem examination of the victim vide memo Ex.PW13/B and the exhibits were deposited in the Malkhana. Insp. K.K. Upadhyay had also seized the CD prepared by PW Chhatarpal vide memo Ex.PW13/C.
90.It is further revealed that on 15.12.2010, the samples/exhibits collected during the investigation of this case were sent to FSL Rohini through PW14 Ct. Rahul.
91.It is further revealed that on 21.12.2010, Insp. K.K. Upadhyay had got the measurements of the spot taken through PW20 SI/draughtsman Mukesh Kumar Jain and obtained the scaled site plan Ex.PW13/D from him.
92.It is further revealed that during the course of trial two biological reports Ex.PW13/E and Ex.PW13/F were filed in the court. The DNA report Ex.PW13/H was also filed in the court. As per the FSL report Ex.PW13/E human semen was detected on the vaginal and rectal smear of the victim and as per the FSL report number 2010/B5522/PHY121/12 on the examination of sweater, top & pajami of the victim and soil found at the spot were found to be having similar physical characters.
SC No.16/2011 State v. Seeshpal 29/3
93.Before reaching at any conclusion let the relevant sections i.e. 363/376/302/201 IPC be reproduced which are as under : Section 363 IPC: "Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
1. Whoever,
(a) being a police officer commits rape
2. within the limits of the police station to which he is appointed; or
3. in the premises of any station house whether or not situated in the police station to which he is appointed; or
4. on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
3. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.SC No.16/2011 State v. Seeshpal 30/3
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section - 302 IPC:
"302 Punishment for murder - Whoever commits murder shall be punished with death, or (Imprisonment for life), and shall also be liable to fine."
Section 201 IPC "Causing disappearance of evidence o offence, or giving false information to screen offender. Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence. shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life. and if the offence is punishable with [imprisonment for life] , or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years' imprisonment - and if the offence is punishable with imprisonment for any term not extending to then years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both."
94.Since it has been the case of prosecution that victim aged about 3 ½ years had been kidnapped by some unknown person when she was playing in the Gali in the day time on 24.11.2010. During the course of investigation, PW Smt. Nemwati who has been examined as PW3. This witness had stated to police in her statement and testimony before the court that she had been residing at her address for last three years and accused was also known to her being the nephew of her neighbour Satbir SC No.16/2011 State v. Seeshpal 31/3 Singh. This witness has stated that she had told the police at that time in the presence of Smt. Pinki that she had seen accused present in the court while taking away the victim my saying that "toffee dilwaunga" in afternoon hours towards school by holding her hands from place in front of house of Satbir Singh on 24.11.2010. In her cross examination, this witness reiterated her statement made to police.
95.Further, it has been the case of prosecution that on 29.11.2010 accused was arrested from Kansal Marg, Harsh Vihar, Delhi on pointing out of secret informer. Thereafter, he was interrogated and made his disclosure statement Ex.PW6/C bearing thumb impression of accused at point 'D' and in pursuance to his disclosure statement he had got recovered dead body of child from the jungle near Nagpal Farm House area.
96.PW2 Smt. Pinki and PW3 Smt. Nemwati are material witnesses in this case for the purpose of prosecution. PW2 is the complainant and PW3 is the witness who had seen accused while taking the victim. PW Smt. Pinki who is the complainant and mother of victim, this witness had stated that on 24.11.2010 she had gone to the house of her maternal uncle Satbir Singh along with the victim and at about 9:00 a.m. victim was playing in the Gali in front of house of Satbir Singh. On that day Smt. Tarawati w/o Sh. Satbir Singh had come at her house and told her that victim was missing from the gali. This witness had told that at the time of incident victim was wearing pink colour Pajami and pink colour top and that that there was one Nemwati had come at the spot and told to police in her presence that she had seen the SC No.16/2011 State v. Seeshpal 32/3 victim at about 12:00 noon on 24.11.2010 taking away by accused Seeshpal and police had recorded the statement of Nemwati to this effect and thereafter, on 29.11.2010 accused was arrested by the police. This witness had identified the wearing clothes of deceased during her examination. In her cross examination by Ld. Amicus Curiae for accused, this witness had denied to the suggestion that she had not named of Satbir Singh and his wife Tarawati and Tulsi Dass in FIR as she was in connivance with them to save them that is why she had got recorded the FIR on 25.11.2010. This witness had stated that she had also noticed bad character of accused one or two occasions during the period of 1 ½ years and that Smt. Poonam, her sisterinlaw (nanad), who resides in Nathupura, Delhi had also objected about the entry of accused at her house during her stay with her and this witness could not objected personally as accused was her Jeth in relation. This witness had not allowed the victim to accompany the accused and her husband had also objected for the company of victim with accused.
97.PW15 W/Ct. Parmilla, this witness had come at the spot along with inspector Dheeraj Singh on 25.11.2010 and in her presence PW Nemwati had disclosed that she had seen accused Seeshpal while taking away the victim at about 12:00 noon or 1:00 p.m. on 24.11.2010. In her presence, I.O. had recorded the statement of Smt. Nemwati, Satbir Singh and supplementary statement of PW Pinki.
98.PW16 Sh. Ravinder who is the uncle of victim. This witness had also stated as on same footing of Smt. Pinki that he had heard from Smt. Nemwati about taking away the victim by accused Seeshpal.
SC No.16/2011 State v. Seeshpal 33/3
99.PW17 Heera Lal is the caretaker of Nagpal Farm House, Bhopura, Ghaziabad, U.P. from where nearby the jungle police had recovered dead body of victim/child at the instance of accused. This witness had stated that on 29.11.2010, he was present at Nagpal Farm House, Delhi being a caretaker. He had seen accused Seeshpal while leading the police inside the jungle and got recovered the dead body of victim/child from the bushes. Dead body was lying in the bushes of sarkandas and PW18 Sh. Chhatarpal Singh, this witness had videographed the proceeding of recovery of dead body from the bushes. This witness had also identified the accused before the court and in his presence, accused had got recovered dead body of victim/child from the bushes, jungle near the Nagpal Farm House.
100.PW21 W/Ct. Priyanka is also the witness of recovery of dead body of the victim from Jungle near the Nagpal Farm House.
101.PW Dr. Meghali Kelkar, Senior Demonstrator, UCMS & GTB Hospital, Delhi who has been examined as PW8. This witness had got conducted the postmortem upon the dead body of victim on 29.11.2010. This witness has deposed as under :
"On general observation it was a dead body of a girl wearing grey sweater, pink jacket top and pink pyjama and wrapped in a plastic body bag. Pink pyjama was pulled down upto the mid thigh. Bluish ink like stains present on the pyjama and palms. Clothes were intact, eyes were closed, cornea were opaque, conjunctivae were congested, petechial haemorrhages were present. Fecal soiling was present. Rigormortis was passed off. Greenish black discolouration was present all over the body. Face was bloated and abdomen distended due to putrefaction. Loosening of scalp hairs and teeth were present.SC No.16/2011 State v. Seeshpal 34/3
Peeling of skin present. Mouth partially open. Tongue portuding out of mouth. Both lips were edematous, congested and abraded. Erythema of inner thighs were present. Soddening of the palms were present.
External antemortem injuries:
Injury No.1 Multiple scrap abrasions in and area of 14 x 4 cm present on lower face, chin and sub mental region. Injury No.2 Reddish blue contusion present on right side neck. Injury No.3 Reddish blue contusion four in numbers lying obliquely in a line in an area of 7 x 2 cm on right side face.
Injury No.4 Reddish blue contusion oval in shape present on right side upper neck.
Injury No.5 Reddish abrasion present on right side neck. Injury No.6 Reddish blue contusion oval in shape present on left side upper neck.
Injury No.7 Reddish abrasion present on left side abdomen. Injury No.8 Reddish scratch abrasions present on right wrist. Injury No.9 Reddish abrasion present on right wrist lateral aspect. Injury No.10 Multiple scratch abrasions in an area of 8.6 x 5 cm present on nose and around mouth.
Injury No.11 Multiple lacerations present on inner surface of both lips.
Injury No.12 Reddish abrasion present on vulva. Injury No.13 Reddish abrasion present on right groin. Injury No.14 Reddish abrasion present on right groin. Injury No.15 Reddish abrasion present on left groin. Internal examination :
Scalp, skull NAD. (No Abnormality
detected).
Brain was liquified.
Neck Extravasation of blood was present in
the soft tissues and muscles on both
side of neck.
Osteocartilaginous structure were NAD.
Ribcage NAD.
Lungs, Heart, Liver, Spleen, Kidneys were soft and flabby. Stomach contain 100 ml yellowish fluid. Walls NAD. Intestines contains gases of putrefaction. Walls soften.
Genetalia, Labia, Majora edematous, widely gaped with exposing underlying congested, reddish abraded, reddish blue contused, labia minora, hymenal tags and vaginal mucosa. Swabs were taken from various sites and smears slides were prepared. Hymen torn SC No.16/2011 State v. Seeshpal 35/3 completely with only few tags present at 12, 3, 6, 9, 11 o'clock position extending beyond the margin. Complete circumferential tears of anal mucosa just internal to orifice which was dilated 2.5 x 2.5 cm with flattening of the anal rugae and exposing underlying anal mucosa.
OPINION: Time since death about five days.
Cause of death : Asphyxia as a result of antemortem manual strangulation. There were signs of recent vaginal and anal penetration, however, swabs and smears were kept for analysis of presence of semen and semen grouping."
102.This PW had opined that time since death about five days which shows proximity of kidnapping and death of victim.
103.From the FIR suspicion has been shown to some unknown person but during the course of investigation, accused Seeshpal was arrested on pointing out of secret informer and he had got recovered dead body of victim from the jungle near Nagpal Farm House. Police had also got videographed recovery proceedings of the dead body and Dr. Meghali Kelkar stated before the court that cause of death was asphyxia due to manual strangulation and in her testimony Dr. Meghali Kelkar had opined time since death about five days. Since the case of prosecution is that victim was missing from 24.11.2010 and opinion of the doctor has also suggested time of death since five days. On close scrutiny of this fact, it shows that there is close proximity of time between the missing and death of victim as per postmortem report. As per the testimony of PW Smt. Nemwati, she had seen the accused while taking away the victim and further recovery of dead body on the instance of accused from the jungle near Nagpal Farm House had been effected. It establish that it was SC No.16/2011 State v. Seeshpal 36/3 the accused who had taken the victim from her lawful guardianship and further postmortem report also suggest that cause of death asphyxia as a result of antemortem manual strangulation and there were signs of recent vaginal and anal penetration and further postmortem report suggest time since death about five days.
104.No doubt that there is no independent witness to fact of rape and murder but the benefit of same can not be given because offence of rape always committed in a silent or lonely place or within the four walls of house.
105.Postmortem report in this case is very much conclusive evidence which is crying and suggesting that accused had given multiple beatings to the victim and had committed murdered following the rape.
106.Further, recovery of dead body has also been effected at the instance of accused in the presence of independent witnesses. Discovery of dead body at the instance of accused raised presumption that it was the accused who had committed the murder because there is no other circumstance which may show the innocence of the accused.
107.Since it has been proved that accused had kidnapped the victim and murdered and raped are the fact of same transaction. Hence, same are admissible.
108.Accused had stated in his statement u/s 313 Cr. P.C. that he had been falsely implicated in the present case and he had not led police to any place and he had not SC No.16/2011 State v. Seeshpal 37/3 pointed out any dead body. From the perusal of record and videography of recovery of dead body, it is clearly established that it was the accused who had led the police party and got recovered dead body of victim/child from jungle near Nagpal Farm House. Hence, explanation furnished by accused u/s 313 Cr. P.C. that he was innocent is immaterial when he had got recovered the dead body to the police from the jungle near Nagpal Farm House. Further accused had further stated in his statement u/s 313 Cr.P.C. that he had been falsely implicated in this case due to previous enmity between his and the family of the victim but in this regard it is made it clear it was PW 3 Smt. Nemwati who had seen the accused while taking the victim who is independent witness in this cast to this effect. Hence, submission of accused u/s 313 Cr. P.C. is immaterial on this fact.
109.Most clinching circumstances against the accused that PW Smt. Nemwati had seen him while taking away the victim on 24.11.2010. Further, absence of accused at his house in village Incholi, Meerut, U.P. when the police had raided his house. Thirdly, accused had led the police party and dead body of child was recovered from a jungle near Nagpal Farm House.
110.Testimony of PW Smt. Nemwati proved that the deceased was last seen in the company of accused. This is the circumstance which has probative value which proves that it was the accused and nobody else who had kidnapped and murdered the deceased following the rape. Hence, it is established that it was the accused who had taken the victim and committed murder following the rape and in view of circumstance as disclosed above an irresistible conclusion can be drawn that it was SC No.16/2011 State v. Seeshpal 38/3 the accused who had strangulated the deceased to death.
111.It is enough when the evidence comes on record from mouth of PWs that it was the accused who had taken the victim from her lawful guardianship and dead body was recovered at the instance of accused. It is sufficient to hold that it was accused who had kidnapped and murdered the victim. Further postmortem report suggest that victim was raped and given multiple beatings before murder.
112.Since accused had buried the dead body of victim under the soil in jungle near Nagpal farm House which shows his intention to destroy the evidence.
113.It is a settled law that circumstances from which an inference as to the guilt of accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances. Hon'ble Supreme Court in case titled as "Bhagat Ram v. State of Punjab, AIR 1954, SC 621" wherein it is laid down that :
"Where the case depend upon the conclusion drawn from the circumstance the cumulative effect of circumstances must be such as to negative the innocence of accused and bring home the offences beyond any reasonable doubt."
114.Since in this case, PW Smt. Nemwati who had seen the deceased in the company of accused on 24.11.2010 and since then neither accused nor victim returned back and lastly the dead body of victim was got recovered at the instance of accused on 29.11.2010. The last seen theory comes into play where the time gap between the SC No.16/2011 State v. Seeshpal 39/3 point of time when the accused and deceased were seen last alive and when the deceased was found dead is so small that possibility of any person other than accused being the author of crime become impossible.
115.The fact of present case has established the proximity of missing of victim and last seen in the company of accused on 24.11.2010 and recovery of the dead body of victim on 29.11.2010 and postmortem report also suggest that time since death about five days.
116.Hon'ble Supreme Court in case titled as "Rajender Prahladrao Wasnik v. State of Maharastra, 2012, CRLJ 1917 Supreme Court wherein it has held as under :
"It is settled principle of law that the evidence has to be read in its entirety. If, upon reading the evidence as such, there are serious loopholes or lacking in the case of the prosecution and they do not prove that accused is guilty then the Court would be justified in giving the benefit of doubt to the accused on the strength of a week FSL report. But when from evidence of mother of deceased it is clear that it was accused who took the deceased away on pretext of buying biscuits and the accused and deceased were last seen together by many witnesses from the village and it was established not only by substantial evidence but clearly by medical evidence as well, that minor girl had suffered serious injuries on her private parts and there were bite marks on her chest and she died because of rape and asphyxia, merely because the FSL report was inconclusive and did not connect accused to crime, benefit of doubt could not be given to accused."SC No.16/2011 State v. Seeshpal 40/3
117.From the close scrutiny of testimony of PWs i.e. PW2 Complainant and PW3 Nemwati and other related material witnesses, it has been established by prosecution that it was the accused who had taken the victim on 24.11.2010 and her dead body was recovered from the place near Nagpal Farm House at the instance of accused on 29.11.2010. There are no circumstances which throw any doubt upon the case of prosecution. Since act by which death of victim has occurred is direct act connected the death of deceased which shows the intention and knowledge on the part of accused as postmortem report suggest cause of death asphyxia due to manual strangulation and time since death about five days and it is further opined that there are signs of recent vaginal penetration.
118.Considering the facts and circumstances of this case, this court is of the view that prosecution had brought enough material which inspires the confidence of this court and this court is of the opinion that prosecution has proved its case beyond reasonable doubt against accused. Hence, this court held guilty accused Seeshpal for charges u/s 363/376/302/201 IPC.
119.COURT OBSERVATION: During the perusal of record, it is observed that Inspector Dheeraj Singh who had been the initial I.O. had not prepared site plan of the place from where victim had been taken away by the accused despite the fact that there were PWs Smt. Nemwati and Smt. Pinki present to this effect. Especially, when he had recorded statement of Smt. Nemwati at the place of kidnapping itself and that time PWs Satbir Singh and complainant were also present and this fact has been come in his cross examination.
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120.Moreover, he had also not filled up missing person form on 25.11.2010 despite the fact that he had received information regarding missing of victim on 25.11.2010. He was supposed to filled up missing persons form as soon as he received information. Copy of this judgment be sent to Commissioner of Police, Delhi, for necessary action and compliance against Inspector Dheeraj Singh for his negligence. PRONOUNCED IN THE OPEN COURT ON THIS 27.09.2013.
(RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI.
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