Seesh Pal vs State on 18 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: November 03, 2017
% Judgment Delivered on: November 18, 2017

+ CRL.A. 541/2014

SEESH PAL ….. Appellant
Through: Mr.S.B.Dandapani, Advocate

versus

STATE ….. Respondent
Through: Ms.Kusum Dhalla, APP for the
State with Inspector Om Dutt
Vats SI Samrat Khatiyan PS
Harsh Vihar
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI
HON’BLE MS. JUSTICE REKHA PALLI
PRATIBHA RANI, J.

1. The appellant Seeshpal was prosecuted for commission of
offence punishable under Section 363/376/302/201 IPC. The Trial
Court vide its judgment dated 27th September, 2013 and order on
sentence dated 5th October, 2013 passed in Sessions Case No.16/2011
(in case FIR No.175/2010 registered at PS Harsh Vihar) held the
appellant guilty for the above charges and sentenced him as under:

(i) U/S 363 IPC RI for 7 years and fine of `5,000/-. In default of
payment of fine RI for 1 month.

(ii) U/S 376 IPC Sentenced for Life Imprisonment and fine of
`5,000/-. In default of payment of fine, RI for 1
month.

(iii) U/S 302 IPC Sentenced for Life Imprisonment and fine of

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`5,000/-. In default of payment of fine, RI for 1
month

(iv) U/S 201 IPC RI for 3 years and fine of `2,000/-. In default of
payment of fine RI for 15 days.

All the sentences were ordered to run concurrently.

2. FIR No.175/2011 under Section 363 IPC was registered on the
basis of statement made by PW-2 Smt. Pinki – mother of the child
victim who visited PS Harsh Vihar on 25th November, 2010 and
reported that her daughter ‘D’ (name withheld to conceal her identity),
aged about 3 ½ years had been missing since 24th November, 2010 and
that she was playing in the gali. At about 1:00 PM when PW-2 could
not see her daughter in the gali, she tried to search for her at the
nearby places and also with her relatives. On not being able to find
her daughter ‘D’, she personally visited the police station to lodge the
missing report. After giving description of her daughter and the
clothes she was wearing, PW-2 also stated that some unknown person
might have taken her away with some wrong intention. On her above
complaint Ex.PW-2/A, the FIR Ex.PW-1/A was registered under
Section 363 IPC and investigation was conducted by Inspector
Dheeraj Singh (PW-9) who sent wireless transmission (WT) message
and also informed DMPU.

3. On 25th November, 2010 when the Investigating Officer
Insp.Dheeraj Singh (PW-9) along with women Constable Parmila
(PW-15) reached the place from where the child got missing,
Smt.Nemwati (PW-3) resident of B-1/929, Gali No.34, Harsh Vihar,
Delhi informed that she had seen the child with Seeshpal who was

CRL.A. No.541/2014 Page 2 of 30
known to her being relation of her neighbour Satbir Singh (PW-19)
and also of Mahipal (father of the deceased), resident of A-Block,
Harsh Vihar. On 24th November, 2010 at about 12 noon appellant
Seeshpal was seen taking the child ‘D’ by holding her finger towards
Bhopura and she thought that he might be taking her for buying a
toffee for her and she came to know about missing of the girl child
only at that time.

4. On getting this clue, raid was conducted at the native place of
Seeshpal from where police came to know from his son that Seeshpal
had gone to Delhi to meet his brother Mahipal (father of child victim)
and had not returned thereafter. On 29th November, 2010 as Inspector
Dheeraj Singh proceeded on leave, the investigation was transferred to
Inspector K.K.Upadhyay. The appellant Seeshpal who was
apprehended on the basis of the secret information was interrogated
and he made disclosure statement. The appellant disclosed that on 24th
November, 2010 when he came to meet Mahipal and saw his daughter
playing outside the house of Sh.Satbir Singh (PW-19), he took the
child on the pretext of buying toffee. He brought the girl child to
Bhopura Gaon and in the bushes of Gopal Dham under a tree of Beri,
he committed wrong act. When the child said that she would tell her
mother, due to fear, he pressed her neck, killed her and threw her body
on the side of the tree of Beri on the sarkandas.

5. At the instance of the appellant the dead body of the child was
recovered from inside Anand Green Nursery, Nagpal Farm Hosue
which was accessed by him through a broken boundary wall. The
proceedings relating to recovery of the dead body at the instance of the

CRL.A. No.541/2014 Page 3 of 30
appellant were also got videographed through PW-18 Sh.Chhatarpal
Singh. Crime team was also summoned to examine the scene of the
crime which was also photographed. The dead body was sent for
post-mortem. The appellant was also sent for the medical
examination. After completion of investigation, the appellant was sent
to face trial.

6. The appellant was charged for committing the offences
punishable under Sections 363/376/302/201 IPC to which he pleaded
not guilty. The prosecution in order to bring home the guilt, examined
21 witnesses as well produced large number of documentary evidence
including the videography of the recovery of the dead body at the
behest of the appellant. The plea of the appellant in the statement
under Section 313 Cr.P.C. is of denial simpliciter and of false
implication. He has not examined any witness in his defence. On the
basis of the oral and documentary evidence including last seen
evidence, recovery of dead body at the instance of the accused and the
medical and scientific evidence produced by the prosecution, learned
Trial Court held that all these circumstances complete the chain which
points towards the guilt of the appellant and accordingly convicted
him and sentenced in the manner aforesaid.

7. Feeling aggrieved by his conviction and sentence awarded to
him in this case, the appellant Seeshpal has preferred this appeal.

8. We have heard Mr.S.B.Dandapani, learned counsel for the
appellant and Ms.Kusum Dhalla, learned APP for the State. Learned
counsel for the appellant has also filed written submissions.

CRL.A. No.541/2014 Page 4 of 30

9. Mr.S.B.Dandapani, learned counsel for the appellant, on
instructions, has submitted that the appellant does not dispute that the
child ‘D’ aged about 3 ½ years was brutally raped and strangulated.
The contention raised on behalf of the appellant is that from the
evidence led by the prosecution the guilt of the appellant has not been
proved beyond reasonable doubt and the chain of circumstantial
evidence is not complete so as to unerringly point out towards the
guilt of the appellant. Therefore, he deserves to be given benefit of
doubt. The learned counsel for the appellant has questioned the credit
worthiness of last seen evidence (testimony of PW-3 Nemwati)
contending that why she remained silent till the police reached the
spot to investigate the matter. A lot of hue and cry must have been
raised in the locality after the child got missing on 24th November,
2010 at about 1:00 PM but PW-3 Nemwati did not inform the family
of the deceased that the child was taken by Seeshpal. Thus, silence of
PW-3 Nemwati till 25th November, 2010 has to be to the advantage of
the appellant so as to extend him the benefit of doubt.

10. Learned counsel for the appellant has also contended that the
child ‘D’ got missing on 24th November, 2010 at about 1:00 PM. As
per PW-3 Nemwati she had seen the child being taken away by the
appellant and going towards Bhopura. The dead body of the child has
been recovered on 29th November, 2010 and postmortem has been
conducted on 30th November, 2010. As per postmortem report, the
time since death is five days, meaning thereby that the murder might
have been committed on 25th November, 2010. Thus, it cannot be said
that the time gap between the date of missing of the child and her

CRL.A. No.541/2014 Page 5 of 30
death was so short so as to rule out the presumption that no other
person could have committed the offence. It has also been contended
that learned Trial Court made a factual error in calculating five days
from the date of post mortem conducted on 30th November, 2016
thereby assuming that the date of kidnapping which is 24th November,
2010 and the date of death coincides. Further the place of occurrence
is a farm house duly guarded by the chowkidars. PW-17, Sh.Heera
Lal, Caretaker/Chowkidar of the farm house has been examined.
When the farm house was duly guarded by the chowkidar, it was not
possible for the appellant to take the child along with him without
being noticed by the chowkidar and this also creates doubt in the
prosecution case.

11. Learned counsel for the appellant has also contended that if
Pinki was informed by PW-3 Nemwati prior to registration of FIR,
that deceased was seen by her going with Seeshpal, then why she did
not name him in the FIR, has remained unexplained by the
prosecution. As per the complainant PW-2 Pinki, the appellant was a
bad character hence possibility of his false implication due to that
reason cannot be ruled out. PW-3 Nemwati stated that some persons
were playing cards but none of them has been examined as witness to
the ‘last seen’ evidence. No public witness was joined even at the
time of arrest of the accused and the DNA report also did not
conclusively prove that he was the offender. The appellant did not
abscond and remained in Delhi which fact was confirmed by his son to
the police when Delhi Police went to his native place in search of him.

CRL.A. No.541/2014 Page 6 of 30

12. Learned counsel for the appellant while contending that the
evidence led by the prosecution to prove that the dead body of the
child was recovered on the disclosure of the statement of the appellant,
has to be disbelieved for the reason that no public witness was joined
when the body was found. The appellant during his examination
under Section 313 Cr.P.C. denied having made the disclosure
statement or that the dead body was recovered at his instance. The
recovery of the dead body was videographed but there is no material
to ascertain that the video was played in the Court at the stage of
evidence or was seen by the Court. The Court relied upon the
videographer’s evidence that the body was discovered at the instance
of the accused/appellant but the learned ASJ did not
record/specifically mention that he had seen the video and satisfied
himself about the veracity of the police claim.

13. Learned counsel for the appellant has submitted that for not
preparing the site plan of the place from where the deceased got
missing and for non-filling the missing persons form, the IO was
indicted by the learned Trial Court.

14. Learned counsel for the appellant also contended that body of
the deceased was found at Anand Green Nursery, Nagpal Farm,
Govind Dham, Bhopura Road, Loni, U.P. This place did not belong to
or was in the possession of the accused. It is a private farm house
guarded by chowkidars Heera Lal and Om Prakash. They would have
noticed the accused taking the victim inside. Merely because the
deceased was seen by PW-3 Nemwati in the company of the appellant
is not sufficient to convict him in view of the decision of the Hon’ble

CRL.A. No.541/2014 Page 7 of 30
Supreme Court in Anjan Kumar Sarma and others v. State of Assam,
AIR 2017 SC 2617.

15. In the decision Anjan Kumar Sarma and others v. State of
Assam (Supra) relied upon by learned counsel for the appellant, the
missing girl was a fully grown up girl who developed intimacy with
one Jit Kakati and when she was with him for a considerable time, her
brother was informed about her spending considerable time in
bunglow at Sangsua Tea Estate. Her brother visited the bungalow and
found her sitting with Jit Kakati and the brother questioned the
conduct of Jit Kakati who expressed his intention to marry her and all
the accused alongwith deceased left the bungalow on two motorcycles.
Subsequently, when she could not be located, it was recorded that she
had eloped with Jit Kakati and thereafter her whereabouts were not
known. It was in the given facts of the case, it was held that the
circumstances of last seen together alongwith the absence of
satisfactory explanation were not sufficient for convicting the accused.

16. Here in the instant case, the victim is 3½ years old girl and the
accused is her paternal uncle who was about 45 years old at the time
of incident and the child was seen in his company by the neighbour
(PW-3 Smt.Nemwati).

17. Ms.Kusum Dhalla, learned APP representing the State has,
however, supported the judgment of the learned Trial Court,
convicting the appellant for committing the offence punishable under
Sections 363/376/302/201 IPC and the sentence awarded thereunder,
on the plea that when the police party raided the native place of the
appellant, he was not found present in the village. Rather it was

CRL.A. No.541/2014 Page 8 of 30
informed by his son that he had gone to Delhi to visit Mahipal (father
of the deceased) and this fact is not denied even by the appellant. It
has also been contended that the ‘last seen’ evidence in this case is
credible as the statement of PW-3 has been corroborated by the fact
that, on the disclosure of the appellant the dead body has been
recovered from Anand Green Nursery, Nagpal Farm House deep
inside which was away from public view. The postmortem report
confirmed that the child was subjected to rape before being
strangulated. There were 15 ante-mortem injuries on her body, vagina
and anal. The hymen was torn completely with only few tags present
at 12, 3, 6, 11 o’clock position extending beyond the margin.

18. We have gone through the material placed on record with the
assistance of learned counsel for the parties. The prosecution has
examined 21 witnesses which include the complainant, PW-3
Nemwati of ‘last seen’ evidence as well to prove the recovery of dead
body on his disclosure, statement of videographer, police officials
forming part of the investigating team at different stages, crime team
officials as well the medical and scientific evidence i.e. post-mortem
report and FSL result.

19. PW-2 Smt.Pinki is mother of the child victim who on 24th
November, 2010 along with her daughter ‘D’ (deceased) visited the
house of PW-19 Satbir Singh. PW-3 Smt.Nemwati, who on 25th
November, 2010 on seeing the police party near the place from where
the child got missing, informed that she had seen the deceased child
being taken by Seeshpal, who was also known to her as relative of
PW-19 Satbir and she thought that he was taking her to buy a toffee

CRL.A. No.541/2014 Page 9 of 30
for her. PW-19 Satbir Singh proved the visit of the complainant PW-2
Pinki along with her daughter ‘D’ to his house on that day and also
that ‘D’ went missing when she was playing outside his house.

20. PW-9 Inspector Dheeraj Singh is the first IO who was posted at
PS Harsh Vihar on 25th November, 2010 and was directed by the SHO
to conduct the investigation in case FIR 175/2010. He along with
Constable Promila, complainant PW-2 Pinki visited the place from
where the child got missing and PW-3 Nemwati made statement
before him about the deceased being last seen with Seeshpal, the
appellant.

21. PW-13 Inspector K.K.Upadhyay took over the investigation of
this case on 29th November, 2010. He along with his team
apprehended the appellant, on the basis of the secret information, on
29th November, 2010 and after arresting him vide arrest memo
Ex.PW-6/A, interrogated him and recorded his disclosure statement as
Ex.PW-6/C. Pursuant to the disclosure statement made by Seeshpal
he led the police party to Anand Green Nursery, Bhopura, Ghaziabad
and pointed out Anand Green Nursery, Nagpal Farm House, Gopal
Dham and through a broken portion of the boundary wall, he led the
police party inside the nursery and pointed out the place where he had
committed rape and thrown the dead body.

22. When the dead body was recovered, the pajami of the child was
down towards knees and there were multiple injuries on her face and
other parts of the body. The proceedings were videographed. Heera
Lal (PW-17) the chowkidar/caretaker of the said farm also reached on
seeing the police party. Crime team was summoned and site was also

CRL.A. No.541/2014 Page 10 of 30
got photographed from PW-5 Ct.Shyam Lal and SOC Report (scene of
crime report) Ex.PW-4/A was delivered to him. After conducting
necessary proceedings including identification of the dead body by the
uncle of the deceased PW-16 Ravinder, body was sent for post-
mortem.

23. PW-18 Chhatarpal Singh is the videographer who stated that on
29th November, 2010 he was called by the police for videography and
he along with the police and the accused Seeshpal accompanied the
police in Gypsy. The accused Seeshpal led the police towards Anand
Green Nursery, Nagpal Farm House and pointed beri ka ped (tree) and
the place where the dead body of female child, aged about 3 years was
lying. At that time the pajami of the deceased was half down. He
prepared the CD of videography on 7th December, 2010 and handed
over the same to the police (Ex.P-7) and original DVC (Ex.P-8).

24. PW-17 Heera Lal, chowkidar/caretaker of the farm had
corroborated the above facts.

25. PW-8, Dr. Meghali Kelkar, Senior Demonstrator, UCMS
GTB Hospital has conducted the postmortem on the dead body of
child victim. She has proved the postmortem report as Ex.PW8/A and
five inquest papers which were initialed and numbered by her as
Ex.PW8/B1 to B5.

26. No doubt that in a case based on circumstantial evidence, to
bring home guilt beyond reasonable doubt, the prosecution has to
establish that the circumstances proved, lead to one and the only
conclusion towards the guilt of the accused. The circumstances from
which an inference of guilt is sought to be drawn are to be cogently

CRL.A. No.541/2014 Page 11 of 30
and firmly established and must unerringly point towards the guilt of
the accused. In other words the circumstances so proved must form a
chain so complete that there is no escape from the conclusion that the
crime was committed by the accused and none else.

27. In the case Aftab Ahmad Ansari vs. State of Uttaranchal (2010)
2 SCC 583, it was held as under:-

‘In cases where evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to
be drawn should, in the first instance, be fully
established. Each fact must be proved individually and
only thereafter the Court should consider the total
cumulative effect of all the proved facts, each one of
which reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together is
conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that
one or more of these facts, by itself/themselves, is/are not
decisive. The circumstances proved should be such as to
exclude every hypothesis except the one sought to be
proved. But this does not mean that before the
prosecution case succeeds in a case of circumstantial
evidence alone, it must exclude each and every
hypothesis suggested by the accused, howsoever
extravagant and fanciful it might be.

There must be a chain of evidence so far complete as not
to leave any reasonable ground for conclusion consistent
with the innocence of the accused and it must be such as
to show that within all human probability, the act must
have been done by the accused. Where the various links
in a chain are in themselves complete, then a false plea
or a false defence may be called into aid only to lend
assurance to the Court.’

CRL.A. No.541/2014 Page 12 of 30

28. In the decision reported as Md.Mannan @ Abdul Mannan vs.
State of Bihar (2011) 5 SCC 317, the appellant was last seen going
with the deceased on a bicycle. The dead body of the child was
recovered on the basis of the disclosure statement made by him. The
Apex Court after considering the circumstantial evidence of the
grandfather of the deceased who had last seen the deceased going on
the bicycle of the appellant and thereafter she never returned, on the
basis of another witness who had seen the appellant getting the child
seated on his bicycle on the chowk and another witness who had seen
the appellant along with the deceased on the bicycle and the disclosure
statement made by the appellant leading to the recovery of the dead
body, held as under:

’15. From the evidence of the aforesaid witness it is
evident that the appellant was working as a mason in the
house of the grandfather of the deceased, PW.8 Debi
Kant Jha and the deceased was sent by him to the betel
shop to get betel.

Evidence of the prosecution witnesses further prove beyond all
reasonable doubt that appellant proceeded towards the betel
shop few minutes after the deceased left and it was the
appellant who was last seen with the deceased going together
on a bicycle. There is overwhelming evidence which proves
beyond any shadow of doubt that the statement given by the
appellant led to the recovery of the dead body of Kalyani from
the field. In our opinion, the circumstances so proved
unerringly point towards the guilt of the appellant and the
chain is so complete that there is no escape from the conclusion
that the crime was committed by the appellant and none else.
Accordingly we uphold the conviction of the appellant.’

CRL.A. No.541/2014 Page 13 of 30

29. In the light of the above principles, the circumstantial evidence
available on record has to be examined.

30. It is a case where there is no eye-witness to the occurrence and
the prosecution sought to bring home the charge on the basis of ‘last
seen’ and circumstantial evidence. These are:

(i) The appellant Seeshpal is related as brother to Mahipal, father
of the deceased, and both of them are from the same village.

(ii) The appellant Seeshpal came to Delhi from his village to meet
Mahipal.

(iii) PW-19 Satbir Singh is maternal uncle of Mahipal who is father
of the deceased. PW-2 Pinki along with her daughter ‘D’ visited the
house of Satbir Singh on 24th November, 2010 and the child ‘D’ was
playing in the gali.

(iv) PW-3 Nemwati, immediate neighbour of Satbir knew not only
Satbir but also his relatives including the complainant PW-2 Pinki, her
daughter ‘D’, her husband Mahipal as well as appellant Seeshpal as
relative of Satbir Singh.

(v) PW-3 Nemwati had seen the appellant Seeshpal going towards
Bhopura with ‘D’ holding her finger. She thought that he was taking
her to buy some toffee etc. for her.

(vi) PW-2 Pinki when realized that her daughter was missing, tried
to search for her everywhere and on not being able to find, reported
the matter to the police next day.

(vii) On seeing the police party at the spot on 25th November, 2010,
the first clue about the missing child came from PW-3 Nemwati who

CRL.A. No.541/2014 Page 14 of 30
informed that the child was seen in the company of the appellant who
was taking her towards Bhopura.

(viii) Raid by the police party at the village of the appellant revealed
that he was in Delhi to see his brother Mahipal, father of the deceased.

(ix) The appellant was arrested on 29th November, 2010 and on the
basis of the disclosure statement made by him, dead body of the child
was recovered from Anand Green Nursery, Nagpal Farm House.
Recovery of the dead body at the instance of the appellant/accused
Seeshpal was duly videographed by PW-18 Chhatarpal Singh.

(x) In the video film, which was played in the Court on 3rd
November, 2017 in presence of appellant and his counsel , the
appellant was seen getting down from the police Gypsy and thereafter
leading the police party towards Anand Green Nursery, Gopal Dham.
He could also be seen leading the police party to a boundary wall
made of bricks but broken at many places and at one place, it was so
low (at ground level) that the appellant just crossed the boundary wall
to lead the police party to the inner portion of the Nursery which was
dense green area with bushes and trees all around like a jungle. It
could be seen that the appellant was taking the three police officials
deep inside the green area and pointing out the place under a tree
where he did ‘galat kaam’ with the girl child and also the place where
he threw the girl child. One police officer was seen asking as to
whether he had thrown the girl child alive or dead to which he was
answering that since the girl was saying that she would inform her
mother, he killed her and threw her. Thereafter, the appellant could be
seen moving ahead and at some distance in the dense green area,

CRL.A. No.541/2014 Page 15 of 30
upper portion of the body of the girl child could be seen lying there
with lots of insects/flies on her face. Her body was partially hidden
under leaves and when the police party and the appellant reached
closer to the body of the girl child, her lower portion was also visible
which was in the same condition as could be seen in photographs
Ex.PW5/1 to 20. The body of the girl child was uncovered from her
private part and blood thereon was also visible as her pyajami was
lowered towards her knees.

31. The appellant had taken the child to the nursery/farm house by
accessing through a broken boundary wall. Thus, he could not have
been seen by the guards of the farm house namely Heera Lal and Om
Prakash.

32. PW-8 Dr.Meghali Kelkar has stated that on 30th November,
2010 she conducted postmortem on the dead body of child victim ‘D’
aged about 3½ years having height 99 cms and weight 15 Kg and
found as follows:

‘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. Mud stains,
weeds, grass present all over the clothes and body. 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. Peeling of skin present. Mouth partially
open. Tongue portuding out of mouth. Both lips were

CRL.A. No.541/2014 Page 16 of 30
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 7×2 cm on right
side face.

Injury No.4 Reddish blue contusion oval in shape
present on right side 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 grain
Injury No.14 Reddish Abrasion present on right grain

CRL.A. No.541/2014 Page 17 of 30
Injury No.15 Reddish Abrasion present on left grain.
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 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 (word anal not mentioned in postmortem
report) penetration, however, swabs and smears were
kept for analysis of presence of semen and semen
grouping.

CRL.A. No.541/2014 Page 18 of 30

Articles preserved:

a. Sealed pullanda containing No.1 sexual assault
examination kit with envelopes containing debbris, body
fluid, nail clipping/scrapping, in between fingers, plucked
scalp hairs, breast swab, vaginal secreation, cervical
mucus, culture specimen, vaginal washing, rectal swab,
oral swab, inner clothing (pyjama), two blood vials. 2.
Envelope containing outer clothing were sealed and
handed over to the police along with sample seal to the
police.’

33. In the instant case the DNA report is not negative and no
opinion could be given due to non-availability of DNA profile of
exhibit ‘lj2’ ‘ln2’. In the decision reported as Ramnaresh and Ors.
vs. State of Chhattisgarh (2012) 4 SCC 257, the report of FSL was
inconclusive but not negative and it was held that it could not provide
any material benefit to the accused.

34. No doubt there is a delay of one day in lodging of FIR but it is
proved from the testimony of the PW-2 Pinki, mother of the child that
she reported the matter to the police when her efforts to search her
daughter at her own level failed.

35. In Balram Singh Anr. v. State of Punjab, 2003 (11) SCC
286, it was observed by the Supreme Court that if the ocular evidence
adduced by the prosecution is worthy of acceptance the element of
delay in registering the FIR/complaint or sending the same to the
jurisdictional Magistrate by itself would not in any manner weaken the
prosecution case.

36. The contention of the learned counsel for the appellant that
appellant was a bad character and due to this reason he has been

CRL.A. No.541/2014 Page 19 of 30
falsely implicated in this case is liable to be rejected as in that event he
had no reason to visit the house of the complainant at Delhi nor he
would have been welcomed there. Further in case the complainant
had any intention to implicate the appellant, she would have named
him in the FIR and would not have stated that some unknown person
might have kidnapped her daughter.

37. In the instant case, inability of the prosecution to prove the
motive or non-existence of the motive to commit the murder of the girl
of tender age i.e. 3 ½ years is hardly of any significance. The intention
of the accused to kill the child victim when she stated that she will
inform her mother could be seen in the videography. Thus, the
intention to hide his crime was apparently the motive for committing
the murder of child victim as he was well known to the deceased and
her family.

38. The postmortem in this case was conducted on 30 th November,
2010 at about 11:00 AM and approximate time of death has been
given as ‘about five days’. Merely because learned Trial Court had
noted that the dead body was recovered on 29th November, 2010 and
the child was found missing from 24th November, 2010, counted five
days therefrom, though the postmortem was conducted on 30 th
November, 2010, that itself is not sufficient to extend any kind of
benefit to the appellant. It is by way of approximation that the time
since death is opined to be about five days. The use of word ‘about’
does not indicate the exact date and time of the death.

39. The child was seen in his company on 24 th November, 2010 and
thereafter her dead body was recovered on 29th November, 2010.

CRL.A. No.541/2014 Page 20 of 30

Prior to that she was brutally beaten and sexually abused which is
proved from the postmortem report of the child and the photographs of
the child Ex.PW5/1 to 20. How long the appellant kept the child alive
to satisfy his lust is a fact within his personal knowledge. The
distance between the place from where the child got missing and the
nursery/farm house in Ghaziabad is not too far so as to require long
travelling. The appellant during hearing of the appeal informed that it
was about fifteen minutes walking distance. From the statement of
IO PW-13 Insp. K.K.Upadhyay, it is proved that the appellant had
accessed entry into the farm house/nursery through a portion where
the boundary wall was broken. Hence, the Chowkidar PW-17 Heera
Lal, who had witnessed the recovery of the dead body at the instance
of appellant, had no occasion to notice the appellant entering the
nursery with the child who after sexually abusing her and causing
several injuries, had strangulated her and hidden her body on
sarkandas partially covered with green leaves. But for the disclosure
statement made by the appellant which led to the recovery of the body
of ‘D’ at his instance from deep inside the jungle and hidden by
branches of tree, the guard would not have come to know, so there
was no occasion for the watchman to notice the entry of the appellant
with a child and his exit alone after commission of the offence.

40. It is a well established legal principle that in cases based on
circumstantial evidence, where a false explanation is offered by the
accused during his examination under Section 313 Cr. PC. in respect
of the facts duly established by the prosecution, the said false denial
could supply a missing link in the chain of circumstances appearing

CRL.A. No.541/2014 Page 21 of 30
against him. The circumstances proved have been fully put to the
accused under Section 313 Cr.P.C. wherein he had denied the entire
case of the prosecution and preferred to enter his plea of simpliciter
denial. This in turn means that the circumstances so proved beyond
reasonable doubt are inconsistent with the accused’s innocence and
also show that he alone was the author of the crime.

41. The factum of taking away of child ‘D’ by the Appellant stood
proved from the statement of PW-3 Nemwati who saw the appellant
with the child.

42. PW-8 Dr.Meghali Kelkar who conducted the post-mortem of
the deceased opined that deceased child was raped and murdered and
there was presence of semen and 15 injuries on her body which were
anti-mortem in nature. The Appellant has failed to explain what
happened to the child thereafter till he got recovered the dead body of
the child from Gopal Dham, Bhopura. PW-11 Dr.Devender Kumar,
who examined the appellant had opined on the MLC Ex.PW-11/A that
there was nothing to suggest that the appellant was unable to perform
sexual intercourse. Thus, the accused who was last seen with the
deceased on 24th November, 2010 had failed to explain as to where the
child remained after being taken by him till he got her dead body
recovered from the jungle in Anand Green Nursery, Nagpal Farm
House, Gopal Dham, Bhopura. There is nothing to indicate that
anybody else, other than the accused could commit the rape and
murder of the deceased. The chain of circumstances of the case lead
to the only hypothesis that the accused and the accused alone was the
author of the crime. His simple denial of the entire case in itself is

CRL.A. No.541/2014 Page 22 of 30
also another circumstance to confirm the hypothesis that it was the
Appellant only who authored this crime i.e. murder of child ‘D’.
Therefore the learned Trial Court rightly convicted him for
committing offences punishable under Section 363/376/302/201 IPC.
Thus, the conviction of the appellant for committing the offences
punishable under Sections 363/376/302/201 IPC is upheld.
Life imprisonment till remainder of the natural life

43. In the instant case, the imprisonment of life was awarded to the
appellant for committing offences punishable under Section 376/302
IPC.

44. On the 3rd November, 2017 while viewing the CD played in the
Court, when the appellant was seen leading the police party for
recovery of the dead body, the appellant was given notice to submit
why the life imprisonment awarded to him for committing the
offences punishable under Sections 376 IPC and 302 IPC should not
mean the rest of his life. Ten days’ time was given to him to file his
response thereon.

45. Learned counsel for the appellant Mr. S.B.Dandapani has
submitted his response contending that as per Section 386 (b)(iii)
CrPC, in an appeal from a conviction, the appellate Court may with or
without altering the finding, alter the nature or the extent, or the nature
and extent, of the sentence, but not so as to enhance the same. It has
been further contended that if a substantial punishment for the offence
has been given by the Trial Court, after taking due regard to all the
relevant circumstances, there should be no interference by an appellate
Court to the detriment of an accused, especially when there is no

CRL.A. No.541/2014 Page 23 of 30
appeal by the State for enhancement on ground of inadequacy of the
sentence. It has also been contended that changing the life sentence to
life sentence till the remainder of the natural life of the convict would
amount to enhancement and therefore hit by the prohibition of
S.386(b)(iii) of the Code of Criminal Procedure.

46. It is a case where a 3 ½ year old child accompanied the
appellant, who was her uncle and after taking her on the pretext of
giving her toffee, the appellant not only sexually abused her but also
gave her beatings and strangulated her to hide his crime. He was seen
and heard in the Video recording that the child said that she would tell
her mother so he killed her. The motive of the crime apparently is that
after rape was committed, in order to hide his crime he committed
murder of the girl child of tender age who was daughter of his brother.

47. After the amendment to Section 376 IPC, the offences
punishable under Section 376(2) IPC have been made punishable with
rigorous imprisonment for a term which shall not be less than ten
years but which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of that person’s natural life
and shall also be liable to fine.

48. Section 376(2) prescribes imprisonment for life which shall
mean imprisonment for the remainder of such person’s natural life and
shall also be liable to fine.

49. In the instant case, the offence of rape committed by the
appellant on ‘D’ was prior to the amendment to Section 376 IPC but
even pre-amendment, the offence committed was under Section
376(2)(f) IPC and punishable with rigorous imprisonment for a term

CRL.A. No.541/2014 Page 24 of 30
which shall not be less than ten years but which may be for life and
also liable to fine.

50. Offence punishable under Section 302 IPC is punishable with
life imprisonment or death penalty. For the offences committed by the
appellant/convict, the maximum extent of punishment of either life
imprisonment or death is provided for under Section 302 IPC.

51. In the case Md.Mannan @ Abdul Mannan vs. State of Bihar
(Supra), in somewhat similar circumstances, the Supreme Court, while
maintaining the death penalty awarded by the Trial Court and
confirmed by the High Court, held as under:-

’18. When we test the present case bearing in mind what has
been observed, we are of the opinion that the case in hand falls
in the category of the rarest of the rare cases. Appellant is a
matured man aged about 43 years. He held a position of trust
and misused the same in calculated and preplanned manner.
He sent the girl aged about 7 years to buy betel and few
minutes thereafter in order to execute his diabolical and
grotesque desire proceeded towards the shop where she was
sent. The girl was aged about 7 years of thin built and 4 feet of
height and such a child was incapable of arousing lust in
normal situation. Appellant had won the trust of the child and
she did not understand the desire of the appellant which would
be evident from the fact that while she was being taken away by
the appellant no protest was made and innocent child was made
prey of the appellant’s lust. The postmortem report shows
various injuries on the face, nails and body of the child.

These injuries show the gruesome manner in which she was
subjected to rape. The victim of crime is an innocent child who
did not provide even an excuse, much less a provocation for
murder. Such cruelty towards a young child is appalling.

The appellant had stooped so low as to unleash his monstrous
self on the innocent, helpless and defenceless child. This act no

CRL.A. No.541/2014 Page 25 of 30
doubt had invited extreme indignation of the community and
shocked the collective conscience of the society. Their
expectation from the authority conferred with the power to
adjudicate, is to inflict the death sentence which is natural and
logical. We are of the opinion that appellant is a menace to the
society and shall continue to be so and he cannot be reformed.
We have no manner of doubt that the case in hand falls in the
category of the rarest of the rare cases and the trial court had
correctly inflicted the death sentence which had rightly been
confirmed by the High Court.

19. In the result, we do not find any merit in this appeal and
same is dismissed accordingly.’

52. Here in this case as per postmortem report Ex.PW-8/A the child
victim who was niece of the appellant was just 3 ½ years old having
height of 99 cms., hence incapable of arousing lust. She had been
brutally beaten, murdered after a violent sexual assault, as evident
from her post-mortem report. Even her cries could not be heard by
anyone in that lonely thick forest.

53. The learned Trial Court has awarded life imprisonment to the
appellant for committing the offences punishable under Section 376
IPC and 302 IPC.

54. In the case Duryodhan Rout vs. State of Orissa AIR 2014 SC
3345 various provisions as to what ‘life imprisonment’ means have
been dealt with at length. The question raised before the Supreme
Court was ‘whether the order of the Trial Court and upheld by the
High Court for the offence punishable under Section 376(f)/302/201
IPC shall run consecutively’. The question was answered as under:-

CRL.A. No.541/2014 Page 26 of 30

’16. Section 45 of the Indian Penal Code defines life as
“The word “life” denotes the life of a human being, unless the
contrary appears from the context”.

The word “imprisonment” has not been defined either in
the Code of Criminal Procedure or in the Indian Penal Code.

As per the General Clauses Act, 1897 Under Section
3(27) – “imprisonment” shall mean imprisonment of either
description as defined in the Indian Penal Code. The definition
of imprisonment under the General Clauses Act would,
therefore, in case of life imprisonment mean imprisonment for
life/imprisonment for the remainder of the convict’s life.

We are not in agreement with submission made on behalf
of the State that imprisonment for life has not been included in
the definition of term ‘imprisonment’ Under Section 3(27) of the
General Clauses Act, 1897.

17. Imprisonment for life is not confined to 14 years of
imprisonment. A reading of Section 55 Indian Penal Code and
Section 433 and 433A Code of Criminal Procedure would
indicate that only the appropriate Government can commute
the sentence for imprisonment of life for a term not exceeding
fourteen years or exceeds the release for such person unless he
has served at least fourteen years of imprisonment.

Section 57 of the Indian Penal Code merely relates to
calculating fractions of terms of punishment by providing a
numerical value of 20 years to life imprisonment.

Section 53 of the Indian Penal Code lists the punishments
to which offenders are liable under the Code which reads as
follows:

First-Death;

Secondly-Imprisonment for life;

Fourthly-Imprisonment, which is of two Descriptions, namely:

CRL.A. No.541/2014 Page 27 of 30

(1) Rigorous, that is, with hard labour;

(2) Simple
Fifthly-Forfeiture of property;

Sixthly-Fine.

Therefore, a person sentenced to life imprisonment is
bound to serve the remainder of his life in prison unless the
sentence is commuted by the appropriate Government in terms
of the Section 55, 433 and 433A of the Code of Criminal
Procedure.

18.In Gopal Vinayak Godse v. The State of Maharashtra and
Ors. MANU/SC/0156/1961 : AIR 1961 SC 600, the Constitution
Bench of this Court while dealing with the question as to
whether there is any provision of law whereunder a sentence
for life imprisonment, without any formal remission by the
appropriate Government can be automatically treated as one
for a definite period. In the said case this Court held:

5. If so, the next question is whether there is any
provision of law where under a sentence for life
imprisonment, without any formal remission by
appropriate Government, can be automatically treated as
one for a definite period. No such provision is found in
the Indian Penal Code, Code of Criminal Procedure or
the Prisons Act. Though the Government of India stated
before the Judicial Committee in the case cited supra
that, having regard to Section 57 of the Indian Penal
Code, 20 years’ imprisonment was equivalent to a
sentence of transportation for life, the Judicial
Committee did not express its final opinion on that
question. The Judicial Committee observed in that case
thus at p. 10:

Assuming that the sentence is to be regarded as one of
twenty years, and subject to remission for good conduct,
he had not earned remission sufficient to entitle him to
discharge at the time of his application, and it was
therefore rightly dismissed, but in saying this, Their

CRL.A. No.541/2014 Page 28 of 30
Lordships are not to be taken as meaning that a life
sentence must in all cases be treated as one of not more
than twenty years, or that the convict is necessarily
entitled to remission.

Section 57 of the Indian Penal Code has no real bearing
on the question raised before us. For calculating
fractions of terms of punishment the section provides that
transportation for life shall be regarded as equivalent to
imprisonment for twenty years. It does not say that
transportation for life shall be deemed to be
transportation for twenty years for all purposes; nor does
the amended section which substitutes the words
“imprisonment for life” for “transportation for life”
enable the drawing of any such all embracing fiction. A
sentence of transportation for life or imprisonment for
life must prima facie be treated as transportation or
imprisonment for the whole of the remaining period of
the convicted person’s natural life.’

55. The Constitution Bench in the case Muthuramalingam and Ors.
Vs. State rep. by Inspector of Police, MANU/SC/0783/2016 dealt with
the question “as to whether the court can direct life sentence and terms
sentences to run concurrently”. The question was answered thus:-

“32. …The Trial Court’s direction affirmed by the High Court is
that the said term sentences shall run consecutively. It was
contended on behalf of the appellants that even this part of the
direction is not legally sound for once the prisoner is sentenced
to undergo imprisonment for life, the term sentence awarded to
him must run concurrently. We do not, however, think so. The
power of the Court to direct the order in which sentences will
run is unquestionable in view of the language employed in
Section 31 of the Cr.P.C. The Court can, therefore, legitimately
direct that the prisoner shall first undergo the term sentence
before the commencement of his life sentence. Such a direction
shall be perfectly legitimate and in tune with Section 31. The

CRL.A. No.541/2014 Page 29 of 30
converse however may not be true for if the Court directs the
life sentence to start first it would necessarily imply that the
term sentence would run concurrently. That is because once the
prisoner spends his life in jail, there is no question of his
undergoing any further sentence. ….”

56. In view of the above, we clarify that the sentence of
imprisonment for life awarded to the appellant for the offence under
Section 376(2) IPC shall mean and be enforced as imprisonment for
the remainder of his natural life.

57. The appeal is dismissed.

58. LCR be sent back alongwith copy of this order.

59. Appellant be informed through the concerned Jail
Superintendent.

60. Copy of the order be also given dasti to learned counsel for the
appellant.

PRATIHBA RANI
(JUDGE)

REKHA PALLI
(JUDGE)
November 18, 2017
‘hkaur/st’

CRL.A. No.541/2014 Page 30 of 30

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