Rabinder Mishra @ Rabin Mishra @ ... vs State Govt Nct Of Delhi
2012 Latest Caselaw 4387 Del

22
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 25.07.2012

+      CRL.A. 419/2011

RABINDER MISHRA @ RABIN MISHRA @ RAMIN MISHRA
                                          ..... Appellant
                    Through Mr. Bhupesh Narula and Mr.
                            Yash Tandon, Advocates.
             versus

STATE GOVT NCT OF DELHI                     ..... Respondent

Through Mr. Sanjay Lao, APP for State.

Inspector Mahender Singh, PS-

Palam.

SI Ajay Pratap, PS-Tilak Nagar.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (oral)

This appeal by Rabinder Mishra impugns judgment dated 12 th

July, 2010 passed by the Additional Sessions Judge convicting him

under Section 302/363/201 of the Indian Penal Code, 1860 (IPC for

short). The appellant also impugns order on the point of sentence

dated 15th July, 2010 by which the appellant has been sentenced to

rigorous imprisonment for life and pay a fine of Rs.2,000/- under

Section 302 IPC, in default of payment of fine, undergo simple

imprisonment of two months. The appellant stands sentenced to

rigorous imprisonment for three years and pay a fine of Rs.1,000/-

under Section 363 IPC and in default of payment of fine, undergo

simple imprisonment of one month. Lastly, the appellant has been

sentenced to rigorous imprisonment of three years and a fine of

Rs.1,000/- under Section 201 IPC and in default of payment of fine,

undergo simple imprisonment of one month.

2. At the very outset, we may notice that the appellant was also

tried for the offence under Sections 366 and 376 IPC, but has been

acquitted for the said charges.

3. The allegation against the appellant is that he had committed

murder of the child „P‟ aged 6 years, daughter of Ram Pati and Amla

Devi and sister of Kiran. They had appeared as PW-3, 6 and 4

respectively. The learned Additional Session Judge has accepted the

case of the prosecution that the appellant had lifted and taken away

child „P‟ on 7th March, 2004 at 7.00 P.M. Subsequently her body was

found in a gutter in a park on 20th March, 2004. The appellant

absconded and was subsequently arrested on 25th June, 2004 from his

native village in Bihar.

4. There is no direct evidence and the case of the prosecution is

based upon circumstantial evidence. The circumstances relied upon by

the prosecution are; (i) Last seen (ii) Recovery and (iii)

Abscondence.

5. As far evidence of last seen is concerned, the prosecution relies

upon testimony of PW-3 Ram Pati, PW-4 Kiran, and PW-6 Amla Devi,

in addition to the testimony of PW-7 Girdhari, a shopkeeper. PW-4

Kiran is a sister of the deceased. When her statement was recorded in

the Court on 23rd March, 2007, she was 10 years of age. In March,

2004, her age would be about 7 years. Her statement was recorded

without oath after the Court had put questions to PW-4 to verify

whether she could understand Hindi and give answers satisfactorily.

PW-4 has stated that she and her sister „P‟ were playing near their

Jhuggi on the occasion of Holi festival. The appellant came and

inquired about her parents. She told him that they were not at home.

After some time the appellant again came and inquired about her

parents. She again replied that her parents were not at home.

Thereafter, the appellant asked why he was not being served with food

and liquor. He took sister of PW-4 Kiran, with him on the pretext that

he would get her biscuits and balloons. She objected, but the appellant

carried her sister on his shoulder and went to the shop of Girdhari and

purchased biscuits and balloon for her sister and took her away on his

shoulder. When PW-4 Kiran objected, she was slapped and told that

after feeding her sister „P‟ he would sent her back to the house. In the

evening she narrated the incident to her parents. However, in the

cross-examination she stated that she had not told anyone from the

neighbourhood that the appellant had taken away her sister. She had

not informed the police. She stated that police and her parents told her

to narrate the facts before the Court as advised and suggested by them.

In the end of the cross examination, she admitted that the appellant had

not taken away her sister in her presence. After permission PW-4

Kiran was re-examined by the Additional Public Prosecutor. In the re-

examination also she reiterated that she had not seen her sister being

taken away by the appellant in her presence. The relevant portion of

the examination and re-examination of PW-4 Kiran are reproduced

below:-

"Police and my parents also told me to narrate this fact before the Court as advised/suggested by them. I have no knowledge about my statement in the Court. Police came to our house at about 10.04.2004. My parents tried to search my sister on the same day when she went missing. Police also inquired from me about the age of my sister and her name. I had not told anything to the police. It is correct that accused had not taken away my sister in my presence. It is incorrect to suggest that I am deposing falsely.

Re-examination by Sh. G.S. Guraya, Substitue Addl. P.P. for the State after permission.

It is incorrect to suggest that accused had taken away my sister in my presence. It is incorrect to suggest that I am deposing falsely."

6. Before we go to the statement of PW-3 Ram Pati, it will be

relevant to refer to the statement of PW-6 Amla Devi, the mother of

the deceased „P‟. In her statement she has stated that the appellant

used to visit their house and on 7th instance (March, 2004) about three

years ago around Holi, the appellant had come to their house and

remained there till 3-4 p.m. At about 5-6 p.m. the appellant went out

of the house and took her daughters „P‟ and Kiran. Kiran came back,

but „P‟ thereafter never returned. She searched her daughter „P‟ in the

locality, but she could not be found. After about 15 days, body of

child „P‟ was located. She identified the dead body of child „P‟, who

was about 6 years of age. In the cross-examination, PW-6 admitted

that she had searched for her daughter „P‟ in Jhuggies and then in the

Tilak Nagar area and in the area where the appellant used to visit. She

stated that no other public person, except the shopkeeper Girdhari, had

told her that he had seen her daughter being taken away by the

appellant. She and her husband had gone to the police station for

lodging a report. The police had also accompanied them in search of

their daughter in different areas. She denied the suggestion that the

accused had come to their house and had taken liquor on 6th March,

2004 with her husband and her husband had to pay an amount of

Rs.1500/- to the appellant and there was altercation between her

husband and the appellant on the issue of settlement of the accounts of

tea shop.

7. It is noticeable that there are substantial differences on material

aspects in the statements made by PW-4 Kiran and PW-6 Amla Devi.

PW-4 had stated that her parents were not at home and the appellant

twice inquired about her parents who were not at home. Thereafter,

appellant had taken away child „P‟ on his shoulder. She had objected.

As per the statement of PW-6 Amla Devi, the appellant was with them

in their house till 5-6 P.M. and in the presence of PW-6, he had taken

both the daughters Kiran and „P‟ with him. What is interesting and has

been brought to our notice is that statement of PW-6 Amla Devi was

not recorded under Section 161 Code of Criminal Procedure,

1973(Cr.P.C. for short). The so called statement given by Amla Devi

under Section 161 Cr.P.C. in fact is not her statement. It is a statement

made by a male. The said statement does not refer to the factual matrix

stated by PW-6 Amla Devi in her examination-in-chief. The statement

appears to be as that of Girdhari, who had appeared as PW-7 in the trial

court. In other words, Statement of PW-6 Amla Devi under Section

161 attributed to her, is not her statement. Her presence and what has

been averred and stated by her becomes a grave suspect. Other

discrepancies in her statement and creditworthiness have been

examined below.

8. PW-3 Ram Pati is the father of the deceased-‟P‟. In his

examination-in-chief he has stated he knew the appellant and his

daughter Kiran had told him that the appellant had met Kiran and „P‟

when they were playing outside their jhuggi and he took child „P‟ with

him on the pretext that he would give biscuits to child „P‟. On

objection by Kiran, the appellant had slapped her. On the next day i.e.

8th March, 2004, he had made search for the appellant, who used to

pull rickshaw near Kesho Pur Mandi. He went to Kesho Pur Mandi

and inquired from the appellant about her daughter. On this, the

appellant made an excuse that he was going to get his slippers but did

not return. He contacted and made inquiries from PW-7 Girdhari, who

told him that the appellant had come to his shop with child „P‟ and had

purchased biscuits and balloons for her. The appellant was carrying

child „P‟ on his shoulder. Rickshaw of the appellant was lying there

but when the appellant did not return. PW-3 took the rickshaw to the

police station Tilak Nagar. The rickshaw was seized vide memo

Ex.PW3/A. Thereafter, statement of PW-3 Ram Pati Ex.PW3/B was

recorded. Police could not trace child „P‟. Later on dead body of child

„P‟ was found and he had gone to DDU Hospital along with his wife to

identify the dead body of child „P‟. After about three months the

appellant was arrested from Bihar and brought to Delhi.

9. In the examination-in-chief PW-3 Ram Pati has stated that the

appellant was the same person, who had visited them on 7th March,

2004 and also had dinner in his jhuggi. In the cross-examination PW-3

Ram Pati stated that on 7th March, 2004 it was the day of Holi and a

holiday. The appellant had come to his house and consumed liquor at

his house. A reading of the said statement in the examination-in-chief

and the cross-examination, it is apparent that the appellant had come or

had remained in the house with PW3, Ram Pati on 7th March, 2004. He

had dinner and liquor with PW-3 Ram Pati. As noticed above, PW-4

Kiran in her statement had stated that the appellant had come to their

house about 7 p.m. and taken away her sister. PW-6 Amla Devi had

stated that at about 5-6 p.m. the appellant had come to their house and

had taken out her daughters along with him. Thereafter, child „P‟ was

not found. This is contrary to what PW-3 Ram Pati has stated i.e. the

appellant had dinner and had consumed liquor with him in their house.

Thus as per the version and testimony of PW-3, Ram Pati, the

appellant was with them even after 7 P.M. Prosecution is unable to

explain the discrepancies in the different versions given by PW3, 4 and

6.

10. The first complaint made by PW-3 Ram Pati in the police station

on 8th March, 2004 was recorded as DD No.18B is marked Ex.PW4/A.

The complaint reads and states that at about 10:40 in the morning Ram

Pati had come to the police station and stated that her daughter „P‟ age

6 years had gone missing since 7 p.m. on 7 th March, 2004. PW-3 did

not mention or name any person as a suspect. Name of appellant is not

mentioned. But this is contrary to version and testimony of PW4 and

PW6. A reading of Ex.PW4/A and the statement of PW-3 clearly

shows that the stories put up by the prosecution and the statement of

PW-3, 4 and 6 are not reliable. PW-4 Kiran in her statement had

specifically stated that he had narrated the incident of the appellant

taking away child „P‟ with him in the evening to her parents. PW-6

Amla Devi, as noticed above, had stated that the appellant was with

them till 5-6 p.m. and had taken away her daughters „P‟ and Kiran with

him. Thereafter, her daughter „P‟ went missing. PW-3 has also stated

that he had gone out to search for her daughter and had also gone to the

place where the appellant was residing, but neither the appellant nor

her daughter was available there. It is quite clear that till 10.40 a.m. on

8th March, 2004, PW4 and PW6 did not suspect that the appellant was

involved. Till that time, PW-4 Kiran had also not told them about the

alleged behaviour of the appellant and the fact that he had taken child

„P‟ on shoulder at about 7 p.m. on 7th March, 2004. PW3 as observed

has contradicted the prosecution version by stating that the appellant

had dinner and liquor with him.

11. It has come on record that at about 6.25 p.m. on 8th March, 2004

PW-3 Ram Pati had made a supplementary statement to the police in

which he had made allegations against the appellant. The statement is

marked as Ex.PW3/B. This was the first time that the appellant was

implicated and mentioned as a suspect by PW3. In this statement Ram

Pati had mentioned about the inquiries made from Girdhari.

12. Girdhari had appeared as PW-7 before the trial court. He has

stated that on 7th March, 2004 at about 7 p.m., the appellant had come

to his kiosk with a girl of tender age, who may be about 3-4 years old.

He knew the father of the girl as Zaleem and Zaleem used to address

the appellant as his brother. The appellant had purchased balloons and

biscuits for the said girl and left. On the next day, wife of Zaleem i.e.

PW6 Amla Devi was weeping and she made inquiries whether he had

seen her daughter as she was missing since yesterday. He told her that

the appellant had come to his kiosk with child „P‟. The said facts were

narrated by PW-7Girdhari to the police on 10th March, 2004. He had

also identified the appellant as a person with whom he had seen the

girl. He identified the photographs of child „P‟. In the cross-

examination he has stated that the appellant used to reside with the

family of the deceased.

13. It is noticeable that statement of PW-7 Girdhari under Section

161 was recorded on 10th March, 2004. There is, as noticed above,

another statement under Section 161 which is attributed to Amala Devi

recorded on 9th March, 2004. The said statement if read carefully,

indicates that it states facts narrated and attributed to be within the

knowledge of PW-7 Girdhari. They match and are similar to the

statement of PW-7 Girdhari recorded on 10th March, 2004 under

Section 161 Cr.P.C. As per the statement of PW-7 Girdhari, wife of

Ram Pati, had come to him on 8th March, 2004 inquiring about her

daughter „P‟ and at that time he had told her that the appellant had

come to his kiosk with her daughter. PW-4 Kiran, on the other hand, is

clear and categorical that she had seen the appellant with her sister at

the shop of Girdhari, where the appellant had purchased biscuits and

balloons for her. She was slapped when she objected to the appellant

taking away child „P‟ with her. Further, she stated that she had

narrated the entire incident to her parents in the evening. PW-3 Ram

Pati in his statement had stated that he had gone and spoken to PW-7

Girdhari and at that time he was alone. Thus, his wife PW6 was not

with her. Further, as per PW7, the appellant was residing in the house

with PW3 and PW6. This is not the case of the prosecution. The said

aspect is material in the facts of present case, as the prosecution relies

and claims that the appellant was last seen and was with the child „P‟ at

7 P.M. on 7th March, 2004.

14. We may note that the prosecution has not been able to state and

explain why the statement of Girdhari was recorded on 10 th March,

2004, when on 8th March, 2004, the full facts were known to them.

PW3 and PW6 as per the prosecution version were aware that Girdhari

had seen the appellant with child „P‟ and had purchased biscuits and

balloons from the shop of Girdhari on 7th March, 2004 in the evening.

As per the statement of PW-3 Ram Pati, the appellant remained in his

house and had dinner and liquor with him. As per the statement of

PW-7 Girdhari, the appellant use to stay in the same house with PW-3

Ram Pati and PW-6 Amla Devi. Their daughter had gone missing since

7 p.m. In case there was involvement of appellant in the said abduction

and disappearance of child „P‟, the presence of appellant in the house,

having dinner and alcohol with the father PW3 is contradictory. The

prosecution story suffers from inconsistencies which cannot be

reconciled. It is not possible to visualize and accept that the appellant

had dinner in the house and had also consumed liquor with Ram Pati,

PW-3, even when child „P‟ had gone missing after being taken away

by the appellant.

15. In view of the aforesaid, we find inherent contradictions in the

allegations made by the prosecution and statements made of the

witnesses with regard to the allegation of last seen. The same has not

been established.

16. On the question of recovery, we find that the trial court

disbelieved the version of the prosecution recording as under:-

"39. The recovery of panty of the child at the instance of accused on 30.6.04 pursuant to his disclosure statement Ex.PW13/D does not inspire confidence, as the said recovery had been affected from the same place from where earlier the dead body of the deceased had been recovered on 20.03.04. As per the testimony of PW13 H.C. Munesh Pal, PW14 Inspector Mahender Singh and PW16 Inspector Pratap Singh, the said panty was recovered from near the gutter near the spot from where the dead body was earlier found. As per the deposition of aforesaid witnesses, the said panty was not found concealed underneath the earth or any tree or like place. In any case, the recovery of said panty almost after 4 months of the incident from the place, where earlier dead body of the deceased had been recovered does not appear to inspire any confidence, as at the time of recovery of deadbody, the police would have thoroughly scanned the placed of the said recovery and they would have thoroughly searched for all the vital clues pertaining to the present case in the vicinity of the area, thereafter the said panty was found lying nearby the same place which escaped the notice of the police officials on 20.3.04.

40. Further as per FSL report nothing has come out of the said panty to connect the accused with the same. Even otherwise, as per the testimony (s) of PW13, PW14 and PW16 no public witness was joined at the time of said recovery of panty from the said place,

which also makes said recovery doubtful. In these circumstances, the said recovery of panty of the deceased child pursuant to the disclosure statement of the accused on 30.6.04 has not been proved by the prosecution, but the prosecution has been able to prove that accused was arrested on 25.6.04 from his native place at Bihar. The aforesaid circumstance no.(5) is decided accordingly."

17. Dead body of child „P‟ was found on 20th March, 2004 in a

DDA Park near Keshav Pur Village. Prosecution has placed on record

DD No.7A Ex.PW5/A. The said DD entry records that wireless

operator had informed the reporting room that a dead body was found

in a park in front of CRPF camp, DDA Flat, Keshav Pur Village.

Subsequently, another DD entry No.52B Ex.PW12/A was recorded.

The said DD entry states that a decomposed body was found in the

gutter of the DDA Park, Keshav Pur, opposite Ring Road.

Subsequently, the said body was identified by PW-3 Ram Pati and

PW-6 Amla Devi as that of child „P‟. At that time, the police had

searched the area and had seized belongings/clothes of child „P‟. PW-

12 had stated that he had shifted the dead body to the DDU Hospital

mortuary. The appellant was arrested on 25th June, 2004 and had made

disclosure statement on 30th June, 2004 marked Ex.PW-13/D. On the

basis of the said disclosure statement, panty of child „P‟ was allegedly

recovered from the park. The park in question was known. Recovery of

panty of child „P‟ is recorded and attributed after a period of more than

three months. It is difficult to believe that panty of the girl would have

remained in the park for three months. The area in question was

sanitized by the police after the dead body was found in the gutter on

20th March, 2004. We have seen the site plan of the park, which is

marked Ex.PW9/A. The said site plan refers to a gutter at the site.

There is another site plan Ex.PW16/E. The said site plan was prepared

on 30th June, 2004 after the alleged disclosure and recovery. The site

plan indicates the gutter, and the location where the body and panty

were found. The second circumstance, therefore, has also not been

established.

18. The third circumstance relied upon by the prosecution is

abscondence. It is clear from the testimony of PW-3 Ram Pati that

atleast till 8th March, 2004, the appellant was in Delhi. In the evening

on 7th March, 2004, even after the alleged abduction and murder of

child „P‟, the appellant was with PW3 and PW6. It appears that till

that time suspicion and fingers were not pointed towards the appellant.

Child „P‟ was missing from 7 p.m. on 7th March, 2004. Thus as per the

prosecution case, at least till 12 noon on 8th march, 2004 the appellant

was certainly available and was seen by the PW-3. As per the

statement of PW-3 Ram Pati, the appellant had dinner in the house of

PW-3 and PW-6 Amla Devi. He had also consumed liquor with PW-3

in the night. The appellant was arrested from his native village on 25th

June, 2004.

19. The Supreme Court in Sk. Yusuf Vs. State of West Bengal,

(2011) 11 SCC 754, has observed as under:

"25. Both the courts below have considered the circumstance of abscondance of the Appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: Matru @ Girish Chandra v. The State of U.P. AIR 1971 SC 1050; Paramjeet Singh @ Pamma v. State of Uttarakhand : AIR 2011 SC 200; and Rabindra Kumar Pal @ Dara Singh v.

Republic of India : (2011) 2 SCC 490) Thus, in view of the law referred to hereinabove, mere abscondance of the Appellant cannot be taken as a circumstance which give rise to draw an adverse inference against him."

In the present case, the abscondence we do not think can be

treated as positive circumstance which confirms hypothesis of guilt.

20. In the present case, we are not sativsfied that the prosecution has

been able to make out a case and establish by circumstantial evidence

that the appellant was involved and has committed murder of child „P‟

or had abducted her. The cumulative effect of evidence on record does

not establish the case beyond reasonable doubt. The appellant is

entitled to benefit of doubt. The impugned judgment and order on

sentence are set aside. The appeal is allowed. The appellant will be

released forthwith, if not required to be detained in any other case.

SANJIV KHANNA, J

S.P.GARG, J JULY 25, 2012 NA