IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI. [CASE NUMBER]. Unique Case ID No. [ENTITY] Vs. 1. [ENTITY], S/o Sh. Shyam Dev Singh, R/o Village Khera Bansoi, PO Basatpur, Distt. Siwan (Bihar). 2. [ENTITY], S/o Sh. Ram Nandan Prasad, R/o Village Gaurav Nagar, PS Parwalpur, Distt. Nalanda (Bihar). 3. [ENTITY], S/o Sh. Murti Pandey, R/o Village Shiv PO GOI, PS Chand, Distt. Kamoor, Bihar. Date of Institution : 22.7.2011. FIR No.60 dated 10.4.2011. U/[SECTION] [ACT] [ACT]. Date of reserving judgment/Order : 10.1.2013. Date of pronouncement : 14.1.2013. JUDGMENT
1. The accused person [ENTITY] has been facing trial for the offences punishable under [SECTION] [SECTION] [ACT] and accused [ENTITY] and [ENTITY] for the offence under [SECTION] [ACT].
2. Brief facts, in nutshell, are that [ENTITY], resident of House No.280, Sultan Master's house, Gali no.1, near Hanuman Mandir, Kapashera, New Delhi, got recorded his statement that his daughter (name withheld as per the dictum of Apex Court and hereinafter referred to as the 'S') aged about three years, who had worn a brown colour skirt was missing since the evening of April 9, 2011 as told to him by his wife [ENTITY]. He had thought that she might have gone to the room of her grandparents but she was not found there. His minor daughter has been enticed away by someone. On the basis of this statement, FIR u/[SECTION] [ACT] was lodged. SI [ENTITY] during investigation tried to trace the minor girl and got issued W.T. Message and sent letter to Delhi Doordarshan, NCRB and CIC/CBI.
3. It is further case of the prosecution that on 10.04.2011, ASI [ENTITY] reached near Hansraj Gupta Farm House on receipt of DD No.16A regarding recovery of the dead body of a minor girl aged about 2/3 years lying near Gupta Farm House, Primary School, Bijwasan Road but dead body was not found. On getting the information regarding recovery of a dead body, SI [ENTITY] alongwith Constable [ENTITY] also reached Gupta Farm House, inspected the spot and found blood on both the trunks of a tree situated outside Gupta Farm House near railings.
4. Prosecution further alleges that on inspection SI [ENTITY] also found that there is a main gate of farm house and eastern side wall of said farm house has already fallen. There was no wall on eastern side. The main gate of farm house is situated on the southern direction of the South Western side of the said farm house and railings are found present from the main gate till broken wall, where many bushes have grown up and, on inspection, blood was found present on the earth soil at the distance of 20 feets inside from the trees planted near railing towards eastern side. It is further alleged that a blood strained brown colour skirt of a minor child was also found which was lying at a distance of 16 feet from railing on the North East side and at a distance of 320 feet from the blood stained earth soil and a white colour cloth alongwith a pair of plastic chappals was also found in the northern side of the said farm house. It is further alleged that crime team was summoned and SI/IO contacted [ENTITY] who told SI [ENTITY] that his aunt has brought the dead body of his daughter to his residence which was found lying near Gupta Farm House. SI [ENTITY] left Constable [ENTITY] to guard the scene of crime and himself went to the house of complainant and found the dead body of prosecutrix, lying in a half naked condition from the lower side and blood with intestines was oozing out not only from the vagina but from the rectum. The crime team was also summoned at the house of [ENTITY] and HC [ENTITY] was left at the house of [ENTITY]. SI [ENTITY] alongwith [ENTITY] again went to Gupta Farm House, where [ENTITY] identified the blood stained skirt worn by the deceased. In the meantime, SI [ENTITY], Incharge Crime Team alongwith photographer reached the scene of crime and took photographs of blood stained earth soil, skirt, chappal etc. Thereafter, Crime Team also took photographs of the dead body at the house of [ENTITY] and then the dead body was sent for postmortem examination to DDU Hospital. Sealed sample received from doctor after the autopsy were seized by IO. During investigation, IO apprehended five persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] as [ENTITY] and [ENTITY] were on night duty on 09.4.2011 as security guard in the Gupta Farm House and [ENTITY] was on duty from 8.00 a.m. On 10.4.2011, whereas [ENTITY] and [ENTITY] were gardeners and [ENTITY] alongwith his family was residing in farm house.
5. It is also the case of prosecution that all five suspects were medically examined in Safdarjung Hospital, where on the medical examination of accused [ENTITY], scar/injury on his penis was observed. Thereafter, accused [ENTITY] confessed his guilt and made a confession/disclosure statement and pointed out the guard room where he raped and murdered 'S' and further got recovered his pant which was worn by him at the time of committing the offence and some blood stains were also found under the pant near zip of the pant. Accused [ENTITY] also confessed his guilt that he had thrown the dead body of 'S' outside the farm house, which was lying inside. As he had informed Manager of farm house Sh. [ENTITY] as well as the Walsons Security Company, accused [ENTITY] reached the spot and asked [ENTITY] to throw the dead body outside the farm house. Call details of [ENTITY] and accused [ENTITY], [ENTITY] were summoned and location of accused [ENTITY] and [ENTITY] was found near the farm house. Accused [ENTITY] disclosed that he was on duty w.e.f. 9.00 p.m. to 9.00 a.m. in the intervening night of 9/10.04.2011 and no reliever was there so accused [ENTITY] reached Gupta Farm House, whose duty was to check and brief the security guards posted at various farm houses including Gupta Farm House and in order to save the name of his security company, he had thrown the dead body with the help of [ENTITY] outside the farm house. Accused persons were produced in the court. [ENTITY]ment of child witnesses was got recorded under [SECTION] [ACT] including that of [ENTITY], who had found the dead body of 'S' lying near Gupta Farm House and had brought her grandmother [ENTITY] to the spot who took the dead body of 'S' to the house of [ENTITY]. Samples were sent to FSL and chargesheet filed.
6. After completion of the investigation, Charge Sheet was laid before the concerned court.
7. Upon committal of the case to the court of Sessions, following Charge was framed against accused [ENTITY] on 08.8.2011 :
"That on 09.4.2011 at about 7.00 p.m. from near Gupta farm house, Bijwasan Road, New Delhi, within the jurisdiction of PS Kapashera, you kidnapped [ENTITY], a minor D/o Mohd. [ENTITY], aged about 3 years, out of keeping of her lawful guardian without his consent with an intention to force her to illicit intercourse with you and you thereby committed an offence punishable u/[SECTION] [ACT] and within the cognizance of this court.
Secondly, on the abovesaid date and time, after kidnapping the prosecutrix [ENTITY], you took her to your Guard room where you forcibly raped [ENTITY] ( a minor aged about 3 years) D/o Mohd. [ENTITY] and you thereby committed an offence punishable u/s.376(2)
(f) [ACT] and within the cognizance of this court.
Thirdly, on the abovesaid date, time and place, you committed murder of Baby [ENTITY], aged about 3 years, and you thereby committed an offence punishable u/[SECTION] [ACT] and within the cognizance.
Fourthly, on the abovesaid date, time and place, after committing rape of Ms. [ENTITY] (a minor) you caused the material evidence to disappear by throwing the dead body of [ENTITY] in the farm house and by throwing the skirt and the newspaper with which you had cleaned your semen at different places in the farm house, and by hiding your own clothes which you were wearing at the time of incident with intention to screen yourself from the legal punishment and you thereby committed an offence punishable u/[SECTION] [ACT] and within the cognizance of this court.
8. On the same date, following Charge was framed against accused [ENTITY] and [ENTITY] :
"That on 10.4.2011 at about 11.00 a.m., you both in furtherance of common intention of you both, caused the material evidence to disappear by throwing the dead body of [ENTITY] outside the farm house with intention to screen yourself/offender from the legal punishment and you thereby committed an offence punishable u/[SECTION] [ACT] and within the cognizance of this court.
9. The accused pleaded not guilty to the aforesaid charges and hence trial was held. During the course of trial, prosecution has examined 42 witnesses. The accused were examined u/[SECTION] [ACT] on 07.01.2013 where all the incriminating evidence put to them was denied by them and all of them claimed innocence. They, however, did not lead any evidence in defence.
10. Before proceeding further I would like to discuss briefly the evidence led by the prosecution to prove its case.
PW1 WSI [ENTITY] was working as Duty Officer in PS Kapashera on 10.04.2011 and during her duty, she received QST from Control Room Operator to the effect that the dead body of a minor girl is lying near Hans [ENTITY] Farm House at Bijwasan Road and she entered the said information as DD No.16A (Ex.PW1/A) in the register.
PW2 is HC [ENTITY], who on 10.04.2011 was working as Duty Officer from 12 midnight to 8 a.m. And at about 12.30 a.m., on receipt of rukka, he registered FIR No.60/11 Ex.PW2/A and made his endorsement Ex.PW2/B. PW3 is [ENTITY], father of the deceased, who got lodged his complaint Ex.PW3/A regarding missing of her daughter at PS Kapashera. On 10.04.2011 at about 10.00 a.m., this witness came to know that deceased had been found dead lying near Shiv Ram Gupta Farm House and thereafter, this witness alongwith police went to the scene of crime where police seized the blood from the trunk of tree, blood stained soil, skirt of deceased, blood stained soil inside the farm house, one blood stained white colour cloth and one pair of plastic slippers of deceased vide seizure memo Ex.PW3/B and this witness has identified following parcels in which case property was lying :
Parcel No.R1, containing bark of tree, which is Ex.P1.
Parcel No.R2, containing blood stained earth, which is Ex.P2.
Parcel No.R3, containing black strands of hair, which is Ex.P3.
Parcel no.R4, containing baby skirt, which is Ex.P4. Parcel No.R5, containing dirty piece of cloth having few brownish stains, which is Ex.P5. Parcel No.R6, containing a pair of slippers, which is Ex.P6.
PW4 is [ENTITY], who on 09.4.2011 was playing at Hanuman Mandir near the house of 'S' at about 8 p.m. with his friends and he saw that the deceased 'S' was going towards Deepan Hospital in the direction of Gupta Farm House. He stopped her, brought her to her house and thereafter went to his home to have food. On 10.04.2011 he learnt from his sister that 'S' was not traceable and went in her search alongwith his family members and at 11.30 a.m., he saw the dead body of deceased 'S' near the wall of Gupta Farm House.
PW5 is Const. [ENTITY] who on 10.04.2011 reached at the scene of crime i.e. [ENTITY] and took some photographs there. Then he went to H.No.280, Gali No.1, Kapashera, where dead body of deceased 'S" was kept and he took the photographs Ex.PW5/A1 to Ex.PW5/A13 with corresponding negatives Ex.PW5/B (collectively).
PW6 is Dr. [ENTITY], who on 14.04.2011 medically examined accused [ENTITY] vide MLC Ex.PW6/A and made following observations :
1. Abrasion present over corona glandis.
2. [ENTITY] present.
3. No [ENTITY].
PW7 is ASI [ENTITY] who on 10.04.2011 was Incharge Crime Team and inspected the scene of crime and prepared the crime report Ex.PW7/A. PW8 is [ENTITY], who was playing in the evening of 09.04.2011 near Hanuman Temple in Gali No.10 and had seen that deceased was going towards [ENTITY] Farm House time and again.
PW9 is Master [ENTITY] who on 10.04.2011 accompanied PW4 [ENTITY] for tracing the deceased and saw that deceased was lying dead outside the wall of Gupta Farm house.
PW10 is [ENTITY], who was running a tea stall near Gupta Farm House, where accused [ENTITY] used to take tea daily but on 10.04.2011, accused [ENTITY] had not come for tea.
PW11 is [ENTITY], the mother of deceased 'S', who also deposed on the line of PW3 [ENTITY] (her husband).
PW12 is ASI [ENTITY] was Incharge Mobile Crime Team, who on 14.04.2011 inspected the scene of crime/occurrence where accused [ENTITY] pointed out the place in the security guard room where some blood was lying and accused [ENTITY] also got recovered one blue coloured pant and this witness prepared his report Ex.PW12/A. PW13 is Dr. [ENTITY], who examined accused [ENTITY] on 14.04.2011 and his report is already Ex.PW6/A and had opined that there is nothing to suggest that he was not capable of performing sexual intercourse.
PW14 is [ENTITY], who accompanied PW12 ASI [ENTITY] and took photographs of security guard room and place where accused [ENTITY] got recovered his pant. The photographs are Ex.PW14/A1 to Ex.PW14/A8 with corresponding negatives Ex.PW14/B. PW15 is WHC [ENTITY] who on 10.04.2011 recorded the information regarding lying of a dead body of 2-3 years old girl near Hansraj Gupta Farm House in CRDD No.10 April 111280317 (Ex.PW15/A).
PW16 is SI [ENTITY] who received the information from South West Control Room that a dead body of 2- 3 years girl was lying near Hansraj Gupta Farm House and recorded this information at page no.271 of wireless log book which is Ex.PW16/A. PW17 is [ENTITY], aunt of PW3 [ENTITY] saw dead body of deceased lying near the wall of the farm house and brought it to the house of PW3, thinking it to be alive but later on came to know that she has already expired.
PW18 is [ENTITY], who received information from his father Sh. [ENTITY] who had been informed by Sh. [ENTITY], Manager of Gupta Farm House regarding lying of a dead body of girl in his farm house.
PW19 is Const. [ENTITY], who on 07.6.2011, prepared the scaled site plan Ex.PW19/A. PW20 is Dr. [ENTITY], who conducted the postmortem of deceased vide report Ex.PW20/A. PW21 is [ENTITY], who took accused [ENTITY] for his medical examination and doctor handed over sealed parcel alongwith one seal to the IO vide seizure memo Ex.PW21/A. Accused [ENTITY] was arrested vide arrest memo Ex.PW21/B and his personal search memo is Ex.PW21/C. After interrogation, accused [ENTITY] was arrested vide arrest memo Ex.PW21/D and his personal search was conducted vide memo Ex.PW21/E. Thereafter Crime Team inspected the spot and IO took the blood, blood stained earth and earth control from the spot and seized the said parcel vide seizure memo Ex.PW21/F. Thereafter, accused [ENTITY] pointed out the place where he had thrown the dead body of the prosecutrix which is Ex.PW21/G. On 15.4.2011, accused [ENTITY] arrested vide arrest memo Ex.PW21/H and his personal search memo is Ex.PW21/J. On 20.4.2011, accused [ENTITY] again medically examined and doctor took the sample of hair of the accused [ENTITY] from different body parts and sealed the same vide seizure memo Ex.PW21/K. This witness identified the following parcels :
Parcel No.R7, containing blood stained piece of floor which is Ex.P7.
Parcel No.R8, containing dark grey colour pant which is Ex.P8.
PW22 is Sh. [ENTITY], uncle of deceased, who identified the dead body of deceased vide Ex.PW22/A. PW23 is Const. [ENTITY], who got conducted the medical examination of accused [ENTITY] and thereafter he took the accused [ENTITY] to Forensic Medicine Department of Safdarjung Hospital.
PW24 is [ENTITY], Secretary of Mr. [ENTITY], who received a telephonic call from accused [ENTITY] regarding lying of a dead body of a girl in farm house.
PW25 is [ENTITY], owner of Gupta Farm House. On 10.4.2011 at about 10.00 a.m., this witness received a call from Mr. [ENTITY] PW24 regarding lying of a dead body in the farm house where security guards were provided by Walsons comapny.
PW26 is Mr. [ENTITY], who is Area Manager of Walsons Security Company Pvt. Ltd., and deposed that they had deployed three security guards in Gupta Farm House namely [ENTITY], [ENTITY] and [ENTITY]. He received call from accused [ENTITY] regarding lying of a dead body in the farm house. This witness has brought the original record of the company i.e. appointment letters in respect of accused [ENTITY], [ENTITY] and [ENTITY] with their attendance sheet for the month of April, 2011 for the period 01.4.2011 to 09.4.2011 which is Ex.PW26/A. PW27 is Ms. [ENTITY], Ld. M.M., who received applications Ex.PW27/A, Ex.PW27/E and Ex.PW27/I for recording statement of [ENTITY], [ENTITY] and [ENTITY] and same are recorded Ex.PW27/B, Ex.PW27/F & Ex.PW27/J and the proceedings regarding recording of statement are Ex.PW27/C, Ex.PW27/G and Ex.PW27/K respectively and applications of IO regarding supplying of copy of the statements are Ex.PW27/D, Ex.PW27/H and Ex.PW27/L respectively.
PW28 is Const. [ENTITY] who on 29.4.2011 took 18 sealed parcels alongwith respective sample seals to FSL Rohini for depositing the same and handed over the acknowledgment to the MHC(M).
PW29 is Const. [ENTITY], who took the deceased to DDU Hospital for postmortem and after postmortem doctor handed over the exhibits to SI [ENTITY] which he seized vide seizure memo Ex.PW29/A. After postmortem, dead body of the deceased was handed over to the father of the deceased, who identified the same vide Ex.PW29/B. PW30 is HC [ENTITY], who joined investigation alongwith SI [ENTITY] on 10.4.2011.
PW31 is SI [ENTITY], who joined investigation alongwith IO on 10.4.2011 and 15.4.2011.
PW32 is Const. [ENTITY], who collected sealed parcels from MHC(M) and taken the same to FSL Rohini, but only three exhibits could be deposited concerning with the DNA and rest of the parcels he got deposited in the MHC(M) on the same day.
PW33 is ASI [ENTITY], who reached Gupta Farm House on receipt of DD No.16A and left the spot after reaching of SI [ENTITY].
PW34 is [ENTITY], General Manager of Walsons Services Pvt. Ltd. On 10.4.2011, an information was received in his office from Field Supervisor [ENTITY] that a dead body of a small girl was lying in the farm house.
PW35 is [ENTITY], who proved customer application form Ex.PW35/A in respect of mobile no. 9868129679 owned by [ENTITY] as well as certificate under [SECTION] of [ACT] Ex.PW35/B. PW36 is [ENTITY], who proved the record pertaining to mobile no.9717199943 for the period of 09.4.2011 to 11.4.2011 which is Ex.PW36/A and scan copy of customer application form is Ex.PW36/B. Call details of mobile no.9650768419 for the period of 09.4.2011 to 11.4.2011 is Ex.PW36/c and customer application form alongwith ID proof of mobile no.9650768419 is Ex.PW36/D and certificate under [SECTION] of [ACT] is Ex.PW36/E and Cell ID Chart of call detail is Ex.PW36/F. PW37 is SI [ENTITY], who prepared rukka Ex.PW37/A, site plan Ex.PW37/B and site plan of the spot is Ex.PW37/C. PW38 is IO/Inspector [ENTITY], who recorded the disclosure statement of accused [ENTITY] Ex.PW38/A. FSL reports are Ex.PW38/B, Ex.PW38/C & Ex.PW38/D respectively and this witness had identified the following parcels :
Parcel No.4, containing mud/soil of feet of the deceased which is Ex.PY1.
Parcel No.EC1, containing piece of floor sample lifted from guard room which is Ex.PY2.
Parcel No.EC2, containing soil lifted from the place where accused threw the girl which is Ex.PY3. Parcel No.EC3, containing mud/soil lifted from the way where girl entered the farm house, which is Ex.PY4.
Parcel No.R8, containing grey colour pant which is Ex.P8.
PW39 is [ENTITY], who had seen MLC which were prepared by Dr. Mrinal [ENTITY], which are Ex.PW39/A, Ex.PW39/B, Ex.PW39/C & Ex.PW39/D. PW40 is [ENTITY], who on 29.4.2011 received 18 sealed parcels alongwith respective sample seals and examined all the exhibits and prepared her report Ex.PW38/C and her serological report is Ex.PW40/A. PW41 is Ms. [ENTITY], who on 20.4.2011 received four sealed parcels including three exhibits and one blood sample and prepared detailed DNA fingerprinting report which is already Ex.PW38/B. In her opinion, the DNA fingerprint profiling performed on the exhibits 2B1, 2B2 and 2B3 is responsible for the biological stains on the exhibit 4.
PW42 is HC [ENTITY], who on 10.4.2011 deposited six sealed parcels in the Malkhana and he made entry in the register at serial No.969 which is Ex.PW42/A. On 11.4.2011, he again deposited six sealed parcels in the Malkhana at serial No.969 which is Ex.PW42/B. On 14.4.2011, he again deposited six sealed parcels in the Malkhana at serial No.972 which is Ex.PW42/C. On 20.4.2011, he again deposited three sealed parcels in the Malkhana at serial No.975 which is Ex.PW42/D. On 25.4.2011, on the direction of the IO, three sealed parcels were sent to FSL Rohini vide RC No.05/21, which is Ex.PW42/E. On 29.4.2011, 18 sealed parcels were sent to FSL Rohini vide RC No.10/21 which is Ex.PW42/G and the acknowledgment regarding depositing of the said exhibits is Ex.PW42/H.
11. I have heard Ld. APP for the [ENTITY] and Ld. Counsel appearing for the accused and have perused the entire material on record.
12. Ld. APP submitted that the evidence on record establishes that the deceased was last seen going towards Gupta Farm House as deposed by the witnesses particularly PW4 [ENTITY] and PW8 [ENTITY] and thereafter dead body of the deceased was found lying near Gupta Farm House which was brought by PW17 [ENTITY] to the house of PW3 [ENTITY]. He submitted that prosecution has been successful in establishing the chain of events which lead to the death of the deceased and every link in the chain of circumstances is complete and points to the guilt of the accused [ENTITY] that he raped and murdered the minor girl 'S'. He further submitted that prosecution has proved that accused [ENTITY] and [ENTITY] threw the dead body of 'S' outside the farm house in order to destroy the evidence of crime and shield the offender. According to him, the accused are liable to be convicted for the offence charged with.
13. Per contra, Ld. Counsel for the accused submitted that the accused are innocent and have been falsely implicated in this case. He submitted that there was great hue and cry in the area over rape and murder of a three years old girl and the police was under intense pressure to nab the culprits. According to him, when the police could not find the real culprits, accused [ENTITY], the night guard at farm house, appeared to be a soft target to them and projected him to be the perpetrator of the ghastly crime. He would submit that scar found on the penis of accused [ENTITY] was caused by police itself during his illegal confinement in police custody before his actual arrest. He would also argue that the DNA profiling relied upon by the prosecution is faulted and no conclusion regarding guilt of accused can be drawn from it. So far as accused [ENTITY] and [ENTITY] are concerned, the Ld. Counsel submitted that there is no evidence on record to show that they threw the dead body of 'S' out of the farm house except their own alleged disclosure statements which are not admissible in evidence. He prayed for acquittal of all the accused.
14. Needless to mention that Ld. APP for the [ENTITY] as well as Ld. Defence Counsel took me through whole material on record which includes voluminous oral as well as documentary evidence.
15. By now, it is evident that the case of the prosecution rests squarely on the circumstantial evidence. There is no direct eye witness to the crime. Experience shows that very rarely are crimes committed in full public view at a public place. Often, the crimes including rape and murder are accomplished secretly far from public gaze so as to avoid their detection. In such cases, the culprits are tracked either on the basis of last seen together or other circumstances appearing on the scene including motive of crime, from which their guilt is inferred. Such type of evidence is called as 'circumstantial evidence. In cases based upon circumstantial evidence, burden upon the prosecution is heavier to prove each and every circumstance leading to the death of the deceased, beyond any reasonable doubt. The facts and circumstances so established should lead to only one inference i.e. the guilt of the accused and should be complete without any missing link in the same so as not to leave any reasonable ground for a conclusion inconsistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
16. It is settled principle of law that such evidence must satisfy the following tests :
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
(ii) Those circumstances should be of such tendency which point towards guilt of the accused.
(iii)The circumstance, taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else and
(iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanations of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
17. PW20 Dr. [ENTITY] had conducted the postmortem of the deceased 'S' in terms of his report Ex.PW20/A and had observed following injuries :
(1) Multiple scratches and nail marks were present on the face, bilateral arms and lower abdomen and thighs with reddish brown in colour. (2) Multiple bruises of different shape and size were present on the both upper and lower limbs, back, medial aspect thigh, left inguinal region and mons pubis with reddish brown in colour.
(3) The vagina and anus were extensively dilated and ruptured with tearing of perineum which caused communicated both orifices with regard to severity of the injury minimal amount of blood and blood clots revealed into the anal and vaginal introitus and appeared peri mortem in nature with collection of sufficient amount of clotted blood into the vicinity of the wound alongwith lacerated all tissue adjacent to wound. The loops of intestines protruded through anus (common introitus) with dark in colour due to set up of putrefaction (initial stage).
18. On internal examination, the genital organs i.e. vagina, labia minora alongwith anal cannal were severally lacerated and torn off due to forcefully penetration of improportionate penile organs during the act of intercourse as detailed mentioned in injury no.3.
19. In the opinion of doctor, the cause of death was due to neurogenic shock caused by forcefully and painfully committed sexual intercourse. All injuries were ante mortem in nature. Injury nos.1 and 2 were inflicted during the course of scuffle while injury no.3 was caused by forcefully penetration of improportionate penile organs during the act of intercourse and same was sufficient to cause death in ordinary course of nature and in his opinion, the cause of death is homicide with sexual assault.
20. Therefore, it is proved that the deceased died of homicidal death with sexual assault and time of death is approximately 1 day from the time of conducting postmortem.
21. Now the question arises whether the prosecution has been successful in proving that the deceased 'S' was raped and murdered by accused [ENTITY] and her dead body was thrown out of the farm house by accused [ENTITY] and [ENTITY] in order to conceal the crime and shield the offender.
22. PW3 is the father of the prosecutrix/deceased 'S' who made his statement Ex.PW3/A to SI [ENTITY] (PW37) regarding missing of his daughter 'S' since evening of 09.4.2011. PW3 has further stated that his wife PW11 Ms. [ENTITY] had told him that deceased 'S' who was wearing brown skirt is missing since 8.00 p.m. who was playing outside his residence and he tried to trace her on his own but she was not found and therefore he lodged the abovesaid complaint. SI [ENTITY] (PW37) prepared rukka Ex.PW37A and got lodged FIR (Ex.PW2/A) under [SECTION] [ACT]. The testimony of PW3 is corroborated by PW11 and other child witnesses namely PW4 [ENTITY], PW8 [ENTITY] who had deposed that deceased was playing and she was going towards farm house but she was sent to her home by PW5 [ENTITY] and next morning she was found dead.
23. It may be noted here that the dead body of deceased 'S' was found outside Gupta Farm House by PW4 [ENTITY]. When he was tracing the deceased, he found the dead body of 'S' lying near a tree near Gupta Farm House, he went back to his house and brought her grandmother (PW17) to the spot. PW16 received a call regarding lying of a dead body of a girl outside of Gupta Farm House and he entered call vide entry Ex.PW16/A. Testimony of PW4 is further corroborated by PW9 [ENTITY] that he alongwith PW4 were tracing the deceased and after seeing the dead body of deceased, PW4 went back to his house and came back with PW17 [ENTITY] and PW17 took the dead body of the deceased to the house of PW3 [ENTITY]. PW17 has also testified to this effect. This evidence is further corroborated by the testimony of PW33 ASI [ENTITY], who on receipt of DD No. 16A reached at Gupta Farm House but could not find the dead body and he informed the police station Kapashera in this regard. This fact is further fortified by the testimony of PW37, SI [ENTITY] who has stated that when he searched Gupta Farm House alongwith Constable [ENTITY] he contacted PW3 ([ENTITY]) who disclosed to him that his aunt, PW17 has already been taken the dead body of deceased to the house of PW3. This fact is further fortified by the testimony of PW7 Incharge Crime Team and PW Const. [ENTITY], who had taken photograph of the dead body of deceased 'S' in the house of PW3. Therefore, from the testimonies of these witnesses, it can be safely held that the dead body of the deceased 'S' was found lying near the tree outside Gupta Farm House.
24. Now coming to the recovery of blood stained bark taken out by PW37 SI [ENTITY] from the two trunks of the tree from where the dead body of deceased 'S' was taken by PW17 to the house of PW3 as well as of articles recovered by PW37 inside the farm house including one brown colour skirt, blood stained earth soil and one white blood stained cloth etc. PW37 has deposed that on 10.4.2011, he went to the scene of crime and he inspected the spot and found blood present on the bark of two trunks of the tree and seized the same as well as other articles. The details of which are as under :
Parcel No.4, containing mud/soil of feet of the deceased which is Ex.PY1.
Parcel No.EC1, containing piece of floor sample lifted from guard room which is Ex.PY2.
Parcel No.EC2, containing soil lifted from the place where accused threw the girl which is Ex.PY3. Parcel No.EC3, containing mud/soil lifted from the way where girl entered the farm house which is Ex.PY4. Parcel No.R8, containing grey colour pant, which is Ex.P8.
25. The abovesaid articles are recovered from inside the farm house and these articles namely skirt and chappal worn by deceased 'S' are duly identified by PW3 even at the time of recovery of the same as well as in the court.
26. Even the blood recovered from the spot in terms of recovery memo Ex.PW3/B is found to be human origin on Ex.P4 (soil from feet of deceased 'S') Ex.PR4 (skirt of the deceased), Ex.R2 (blood stained earth) as detailed in the report Ex.PW38/C.
27. It is relevant to mention here that the persons who were owner and concerned with the security of the Gupta Farm House have deposed that they had knowledge regarding lying of a dead body of a minor girl in the said farm house. PW25 Shri [ENTITY], owner of the said house has deposed that he received a call from his Manager of Farm House Sh. [ENTITY], PW24 that a dead body has been lying in his farm house and security guard at his farm house is appointed by Walson Security Agency.
28. Testimony of this witness is further corroborated by PW24, Sh. [ENTITY] that accused [ENTITY] made a call to him on 10.4.2011 informing him that a dead body of a girl child is lying inside the farm house. PW26 Mr. [ENTITY] who is the Area Manager of Walson Security Agency has deposed that a call from accused [ENTITY] was received in the office of his agency regarding lying of dead body in the Gupta Farm House. PW26 has proved on record the appointment letters and attendance sheet of the Walson Security Agency in respect of the accused persons namely [ENTITY], [ENTITY] and [ENTITY] (Field Supervisor). Appointment letters of accused [ENTITY], [ENTITY] and [ENTITY] is proved in terms of Ex.PW26/A, Ex.PW26/B and Ex.PW26/C respectively and their attendance is proved in terms of the attendance register Ex.PW26/D and Ex.PW26/E for the months of April and March, 2011 qua [ENTITY] and [ENTITY] and in terms of Ex.PW26/F qua accused [ENTITY] (as Field Supervisor).
29. It may be noticed that from the testimonies of the abovesaid witnesses, it is proved on record that the dead body of the deceased 'S' was found inside the Gupta Farm House and blood stained belongings of the deceased alongwith blood stained soil was also recovered from the farm house and the accused were on duty on the fateful intervening night of 09/10.4.2011 in the Gupta Farm House.
30. So far as disclosure made by accused [ENTITY] is concerned, it is relevant to note that accused [ENTITY] was apprehended on suspicion and on his medical examination, injury is found on his penis and on interrogation, he suffered a disclosure statement confessing his guilt. At his instance, a pointing out memo was prepared and he pointed out the place where he committed rape and murder of the deceased in the security guard room and at his instance, IO got recovered blood stained pieces of earth floor, earth control and earth soil nearby the pieces of floor. The accused [ENTITY] also got recovered his pant having blood stains, which was allegedly worn by him at the time of committing rape and murder of the deceased and same was taken into possession vide recovery memo Ex.PW21/F. The said recovery is an admissible piece of evidence.
31. PW12 ASI [ENTITY] has deposed that he visited the scene of offence and security guard room on 14.4.2011 and he noticed blood stains on the floor of said room and photographer of his team took photographs of scene of crime and he prepared the report.
32. PW14 [ENTITY], the photographer of the Crime Team, who visited the scene of crime on 14.4.2011 and he took photographs of the scene of crime namely that of the security guard room has proved the said photographs. PW21 proved the following exhibits :
Parcel No.R7, containing blood stained piece of floor, which is Ex.P7.
Parcel No.R8, containing dark grey colour pant, which is Ex.P8 and as per these exhibits, human blood is found present on the following exhibits in terms of report Ex.PW40/A.
33. Here it is noteworthy that till 14.4.2011 the police was in dark about the place where the deceased had been raped and murdered and by whom. It is only when accused [ENTITY] made disclosure statement (Ex.PW38/A) that the police got to know that he is the offender. Pursuant to his disclosure statement, accused [ENTITY] pointed out to the police, the guard room on the right side of the main gate of Gupta Farm House where he had committed rape on the minor girl. Pointing out memo is Ex.PW21/F. Blood stains were found on the floor of the guard room, it was got photographed and the I.O. (PW38) lifted a portion of blood stained floor and earth control from the guard room and seized the same.
34. Thus the fact that the deceased had been raped in the aforesaid guard room, where blood stains also were noticed on the floor, was discovered by the police for the first time pursuant to the disclosure statement of accused [ENTITY]. Accused [ENTITY] had also got recovered a light blue colour pant, which he had worn at the time of commission of crime and blood was found at the base of the zip of the pant. The accused got recovered the pant from beneath the stones near a dry tree towards Taneja Farm House. According to FSL report Ex.PW38/C, blood and human semen were detected on this pant.
35. In the decision reported as Prabhoo vs. [ENTITY] of U.P., AIR 1963 SC 1113, an axe, a shirt and a dhoti which were found to be stained with human blood were recovered from the house of the accused, at his instance. Supreme Court clarified the provisions of [SECTION] of the [ACT] by laying down that any statement of the accused that with a particular weapon of offence, he had committed the murder is not admissible under [SECTION] of the [ACT] as it does not lead to any discovery of fact within the meaning of [SECTION] of the [ACT] and even the statement of of the accused that blood stained shirt and dhoti belong to him is not such a statement which leads to any discovery within the meaning of [SECTION], it was laid down that it is fallacious to treat the fact discovered within [SECTION] as equivalent to the object produced; the fact discovered embraces the place from which the object was produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. It was held that this is not legally permissible to admit evidence of the alleged statement of the accused that the axe had been used to commit the murder or statement that the blood stained shirt and dhoti were his. It was held that from mere production of the blood stained articles by the accused, one cannot come to the fact that the accused committed the murder in as much as the fact of production cannot be said to be consistent only with guilt of the accused and inconsistent with his innocence, for the reason it is quite possible that someone else committed the murder and kept the blood stained articles in the house of the accused and that the accused might have produced the said articles when interrogated by the police.
36. In [ENTITY] of Maharashtra vs. Suresh, 2000 (1) SCC 471, the Supreme Court held :
"26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he choses to refrain from telling the court or to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in [SECTION] of the [ACT]."
37. In the instant case, the accused [ENTITY] has nowhere stated that he come to know from some other person that the deceased was raped and murdered in the guard room and the offender has hid his pant in the stones. Evidently, he was the only person, who knew the place where the minor girl had been raped and murdered and showed that place to the police. In [PRECEDENT], the Supreme Court said that discovery of fact referred to in [SECTION] of the [ACT] is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused to it.
38. Hence the relevant portion of the disclosure statement of accused [ENTITY] where he says that the girl 'S' was raped and killed in the guard room, her dead body was then thrown on the grass inside the farm house, he had hid his pant beneath the stones outside the farm house and got the same recovered, is admissible in evidence in view of [SECTION] of the [ACT] and can be relied upon. Therefore it stands proved that the deceased was raped and murdered in the security guard room at Gupta Farm House, thereafter her dead body was thrown on the grass inside the farm house and these facts were within the knowledge of accused [ENTITY] alone.
39. The testimony of PW27, the Area Manager of M/s. Walsons Security Company Pvt. Ltd., it is proved that accused [ENTITY] and [ENTITY] were on night duty as security guards in the Gupta Farm House on 9/10.4.2011 and accused [ENTITY] was the Supervisor. Accused [ENTITY] was on duty from 8.00 a.m. on 10.4.2011. It has also come on record that [ENTITY] and [ENTITY] were employed as gardeners in the farm house and [ENTITY] was residing in the farm house alongwith his family. It appears from the prosecution case that all the five were initially suspects in this case and were got medically examined. Amongst them only accused [ENTITY] was found to have an abrasion mark on his penis. He was first examined by PW6 on 14.4.2011, who made following observations on the MLC :
(1) Abrasion present over corona glands. (2) [ENTITY] present.
(3) [ENTITY] absent.
40. The accused was then referred to Forensic department for detailed examination. There he was examined by PW13 on the same date i.e. 14.4.2011. According to the deposition of PW13, he had found pinkish partially healed abrasion (scab fallen off) 1 X 0.5 cm on right side front of chest, upper aspect in the mid clavicular region. He also found thickening of skin over scrotum. Both tests were present. On retraction of prepuce, whitish smegma was present all over the glans. The mucosal skin showed reddish raw area in the upper part of penile shaft. The frenulum showed old scar injuries. He opined that the accused was capable of performing sexual intercourse.
41. The injury found on the upper part of the penis of the accused clearly shows that this was suffered by him on account of forceful penetration. PW13 has deposed in the cross examination that this penile injury was fresh, about 24 hours old with plus minus of 8 hours on either side. It was on this basis that the Ld. Counsel for the accused argued that the accused was examined by PW13 on 14.4.2011 and hence the accused would have suffered the penile injury either on 13.4.2011 or 12.4.2011 and same cannot be related to the incident dated 9/10.4.2011. He submitted that this injury was caused to him by the police officials whilst he was in illegal custody in the police station before his actual arrest on 14.4.2011.
42. In my opinion, the arguments of the learned Counsel are without any basis and hence meritless. It was for the accused to explain when and in what circumstances did he suffer such penile injury. He has remained silent when questions regarding the same were put to him on his examination u/[SECTION] [ACT]. (See Q. Nos.27 & 28). The purpose of examining an accused under [SECTION] [ACT] is to put to him all the incriminating material against him and provide an opportunity to him to state his case. It is obligatory on the part of the accused while being examined under [SECTION] [ACT], to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (see-The [PRECEDENT]; [ENTITY] of Maharashtra vs. Suresh (2000) 1 SCC 471; and Musheer Khan vs. [ENTITY] of Madhya Pradesh, (2010) 2 SCC 748).
43. In Pradeep Singh vs. [ENTITY] of Rajasthan, AIR 2004 SC 3781, accused had not given any explanation for the presence of blood stains on his pant and skirt. He had simply pleaded false implication. Presence of blood on his clothes was found to be incriminating circumstance against him. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement u/[SECTION] [ACT]. Keeping silent and not furnishing any explanation for such circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him.
44. Thus, since the accused [ENTITY] has failed to explain how & when did he suffer injury on his penis and how blood came to be present on the zip of his pant, which he got recovered pursuant to his disclosure statement, as aforesaid, these are positive circumstances inculpating him in the offence for which he has been charged.
45. PW41, the Senior Scientific Officer (Biology), DNA Fingerprinting Unit, FSL, Delhi, had performed DNA profiling of the blood sample of accused [ENTITY] (Ex.4) and the vaginal as well as anal swab of the deceased (Ex.2B1, 2B2 & 2B3). As per report (Ex.PW38/B) source Ex.4 is responsible for the biological stains on exhibits 2B1, 2B2 and 2B3 as allels from source Ex.4 are accounted in the allels from source Ex.2B1, 2B2 and 2B3. The learned Counsel for the accused had argued that this report cannot be relied upon as it is a faulty one prepared at the instance of the police officials. However, the Ld. Counsel has failed to explain the basis of his argument. There is nothing in the cross examination of this witness to suggest so. The argument seems to have been put forward only for the sake of the arguments.
46. It cannot be disputed that in the past 20 years, DNA typing has enhanced the ability of the forensic scientists to characterize biological evidence and has greatly influenced the way the law enforcement community conducts criminal investigations. DNA plays an important role in modern forensic science. Today, DNA fingerprinting has become one of the primary methods of identifying people and solving crimes. DNA stands for Deoxyribonucleic Acid. It is the genetic material of a human cell. It can also be described as the blueprint of an organism. DNA is contained in blood, semen, skin cells, tissues, organs, muscle, brain cells, bone, teeth, hair, saliva, mucus, perspiration, fingernails, urine, feces etc.
47. The chemical structure of everyone's DNA is the same. The only difference between people is the order of base pairs. There are so many millions of base pairs in each person's DNA that every person has a different sequence. From these sequences every person could be identified solely by the sequence of their base pairs. Instead, scientists are able to use a shorter method due to repeating patterns in DNA. These patterns do not, however, give an individual "fingerprint" but they are able to determine whether two DNA samples are from the same person, related people, or non related people. This is called DNA fingerprinting or profiling.
48. The DNA profiling conducted in the present case cannot be flawed in any manner and the report Ex.PW38/B is absolutely credible and reliable. Thus it stands proved that DNA of semen stains found in the vaginal swab and anal swab of the deceased match with the DNA of accused [ENTITY] extracted from his blood sample. This leads to inevitable conclusion that accused [ENTITY] had committed rape upon the deceased and he is the perpetrator of the crime.
49. One more circumstance needs to be noted here which reflects upon the conduct of the accused [ENTITY] and also points towards his complicity in the offence. PW10 has deposed that the accused used to take tea at his tea stall daily in the morning but he did not come to take tea on 10.4.2011. Accused had also admitted this in his statement u/[SECTION] [ACT] but did not give any reason for such unusual conduct.
50. The assessment of the evidence lead by the prosecution in totality reveals that following circumstances stand proved :
(i) Deceased 'S' went missing from the evening of 09.4.2011;
(ii) PW4 and PW8 had seen the deceased going towards farm house again and again. They stopped her and brought her back to house;
(iii)Deceased had been raped and killed on the night intervening between 09.4.2011 & 10.4.2011;
(iv)The dead body of deceased was found outside Gupta Farm House in the morning of 10.4.2011;
(v) Accused [ENTITY] was on night duty as a security guard alongwith [ENTITY] in the Gupta Farm House on the night intervening between 09.4.2011 & 10.4.2011;
(vi)The blood stained frock and chappal of the deceased were recovered from inside Gupta Farm House;
(vii)Accused [ENTITY], pursaunt to his disclosure statement, pointed the guard room in the farm house where deceased had been raped and killed and also the place inside the farm house where her dead body had been thrown on the grass after her death;
(viii)Blood stains were found on the floor of the guard room and on the grass;
(ix)Accused also got recovered his pant from beneath the stones outside the farm house and there were blood stains on the base of the pant's zip;
(x) The accused [ENTITY] has failed to explain how he came to know that the deceased had been raped & murdered in the guard room and then her dead body was thrown in the grass. He also failed to explain blood stains on his pant;
(xi)An abrasion was found on the penis of accused [ENTITY] during his medical examination, which also he has not explained;
(xii)DNA in the blood of accused matched with the DNA present in the vaginal & anal swab of the deceased; and
(xiii)The accused [ENTITY] did not take tea on the tea stall of PW10, where he used to take tea daily in the morning and he has not furnished any particular reason for the same.
51. The circumstance nos.VII, VIII, IX, X, XI, XII and XIII unerringly point towards the guilt of the accused [ENTITY] and are inconsistent with his innocence. Therefore, the prosecution has been successful in proving that the accused [ENTITY] raped & murdered the minor girl 'S'.
52. So far as accused [ENTITY] and [ENTITY] are concerned, it is manifest from the testimony of PW26 that [ENTITY] was posted as security guard in Gupta Farm House on 09/10.4.2011 and [ENTITY] was the Field Supervisor. PW24 deposed that he received a call from accused [ENTITY] on 10.4.2011 at 10 a.m. that dead body of one small girl was lying in the farm house. He conveyed the information to his employer, the owner of the farm house i.e. PW25 who directed him to reach the spot and tell the security guard at the farm house to inform police. PW26 has deposed that accused [ENTITY] informed him on 10.4.2011 at about 10.15 a.m. that the dead body of a small girl was lying in the farm house. He directed [ENTITY] to reach there and inform the place.
53. It is quite apparent from the testimony of aforesaid witnesses that accused [ENTITY] and [ENTITY] were present in the farm house on 10.4.2011 at 10 a.m. and had seen the dead body of 'S' inside the farm house. Later on, the dead body was discovered outside the farm house. In the absence of any explanation either from accused [ENTITY] or from accused [ENTITY] as to how the dead body reached outside the farm house, it can safely be concluded that they had thrown the dead body out of the farm house.
54. However prosecution has not lead any evidence to show that accused [ENTITY] and [ENTITY] knew the offender at that time and they threw the dead body out of farm house in order to shield the offender. At that time, as per the case of the prosecution itself, it was unknown to everybody as to who had committed the offence. Hence, in my opinion, there is no material on record to convict these two accused for the offence u/[SECTION] [ACT]. It appears that they threw the dead body out of the farm to protect the reputation and goodwill of their employer company and to show that the dead body was not found inside the farm house.
55. Resultantly, accused [ENTITY] is hereby convicted of having committed offences punishable u/[SECTION] and [SECTION] [ACT]. However, accused [ENTITY] and [ENTITY] are hereby acquitted.
Announced in open (VIRENDER BHAT) Court on 14.1.2013. Addl. Sessions Judge (Special Fast Track Court) Dwarka Courts, New Delhi.