Criminal Appeal No.704-DB of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.704-DB of 2007
Date of decision: August 17, 2012
Chhotu Kumar son of kishan Lal, resident of village Birola at present Kusumpur Bhari, Basant Bihar, New Delhi.
State of Haryana
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P.NAGRATH
Present: Mr. Pawan Girdhar, Advocate,for the appellant. Mr. R.D.Sharma, Deputy Advocate General,Haryana
for the respondent.
(i) Whether Reporters of local papers may be allowed to see the judgment ?
(ii) To be referred to the reporter or not ?
(iii) Whether the Judgment should be reported in the Digest ?
This appeal is directed against the judgment and order of sentence dated 02.12.2005, rendered by the learned Additional Sessions Judge, Panipat, convicting the accused-appellant for offences punishable under Sections 376 and 302 of the Indian Penal Criminal Appeal No.704-DB of 2007 2 Code and awarding sentence of imprisonment for life on both the counts. Both the sentences were to run concurrently.
2. The prosecution story as unfolded at the trial is, that Het Ram, complainant a resident of Kusumpur Pahari, Basant Vihar, New Delhi, had come to village Bhodwal Majri to meet Sultan, his brother- in-law ( i.e. husband of sister of his wife ) on 18.7.2003 along with his wife Kunta, four daughters, including Vijay Laxmi, the victim, who was nine years old at that time, and Chhotu, appellant, his friend also a resident of Kusumpur Pahari New Delhi. The complainant and the appellant are both natives of Uttar Pradesh. On 19.7.2003 at about 3.00 pm, the appellant left village Bhodwal Majri saying that he was returning to Delhi. From that very time, the daughter of the complainant, Vijay Laxmi, the victim also disappeared. The complainant party made efforts to search for the girl, and on 22.7.2003 a report of the missing child was made at Police Station Samalkha.
3. On 25.7.2003 both Het Ram,complainant and Mahesh son of Sultan, were combing the area in search of the girl. They felt a foul smell emitting from the fields of 'jawar' located near railway station, Bhodwal Majri. They entered the field and found the naked dead body of Vijay Laxmi, deceased. The dead body was decomposed and in putrefied condition. The frock of the girl was lying nearby. The complainant suspected the appellant to have murdered the girl after committing rape on her. The appellant had come to the village Bhodwal Majri previously also along with Het Ram. Criminal Appeal No.704-DB of 2007 3
4. The Police party headed by SI Amar Nath of Police Station Samalkha, was present along with other officials at Bus Stand, Patti Kalyana, G.T. Road for patrolling and checking, where Het Ram met them. The complainant recorded his statement Ex,PE before SI Amar Nath, on the basis whereof FIR Ex.PE/1 was registered.
5. SI Amar Nath went to the spot, where the dead body of the child was lying. He called the photographer and photographs were taken. The frock of the child lying near the dead body was prepared into a sealed parcel and taken into possession vide memo Ex.PA. He prepared the inquest report Ex.PH of the dead body and also the rough site plan Ex.PO.
6. Dr. Sanjiv Malhotra, Department of Forensic Medicines, PGIMS, Rohtak conducted autopsy on the dead body and, in his opinion, the cause of death was manual strangulation, which was ante mortem, and sufficient to cause death in the ordinary course of nature. The doctor, however, did not give any specific opinion, as to whether, the child was raped before she was murdered.
7. It is further the prosecution story that in the evening on the same day, the Investigating Officer along with his team went to the house of Sultan in village Bodhwal Majri, the relative of the complainant, where the mother of the deceased child and Chhotu Ram appellant were present. On interrogation the statement of the appellant was recorded, who led the Police party to the place from where the dead body was recovered. Evidence was also collected by the Police regarding the victim last seen with the appellant on 19.7.2003 by examining PW4 Narain Singh and PW5 Lakhi Ram, Criminal Appeal No.704-DB of 2007 4 resident of village Bhodwal Majri.
8. On the above aspect the prosecution though relied upon the evidence of conduct of the appellant leading to the fields from where the dead body of the girl was recovered, by examining Nar Singh (PW-1) and Latur Singh (PW-3), but that evidence is inadmissible as it did not lead to the discovery of any fact and does not fulfill the ingredients of Section 27 of the Evidence Act and thus, is hit by Section 25 of the Evidence Act. On completion of the investigation, charge-sheet was presented against the appellant.
9. The prosecution in all examined 13 witnesses in support of its case. Ram Kishan, Kunta Devi wife of complainant and his son Mahesh Kumar were given up by the prosecution.
10. Thereafter, the appellant was examined under Section 313 Cr.P.C., and he denied all the incriminating circumstances appearing in the evidence of the prosecution against him. He further pleaded as under :
" I am innocent. I have not committed any crime as is mentioned in the present case. I had been working and living in Delhi in the neighbourhood of the complainant till the arrest in this false case. I had good visiting terms with the complainant. The wife of the complainant tried her best to woo myself but I never succumbed to all these attempts and considered her as my mother like figure. The complainant was of the impression that his wife had illicit relationship with me and this is the sole reason why I have been falsely named in the present false case. Being a destitute and belonging to scheduled caste, I have been made a scapegoat in this false case in place of original culprit who is the relative of the complainant and is resident of village Bhodwal Majri. Non-deposition Criminal Appeal No.704-DB of 2007 5 in the Court of complainant's wife Kunta Devi and Mahesh son of Sultan Singh also substantiate my
contentions hereinbefore said."
The appellant examined HC Raj Kumar as DW1 in defence.
11. The trial Court convicted and sentenced the appellant as aforesaid.
12. We have heard the learned Counsel for the appellant and the learned State Counsel and have perused the record of the case, quite carefully.
13. It would be appropriate to briefly refer to the evidence produced in the case.
14. PW2, Het Ram complainant, the father of the deceased girl belongs to New Delhi and PW1, PW3 to PW5 belong to Village Bhodwal Majri.
15. Nar Singh PW1 stated that his wife is the Sarpanch of the village. He stated that on 25.07.2003, Ram Phal and his paternal uncle, came to their house and informed that while they were harvesting their 'jawar' crop in the fields, they felt foul smell. PW1 took 2/3 persons along with him and saw body like structure from some distance. Because of the offensive odor smell coming from there, they came back home and made a telephonic call to the Police. After sometime, the police came and they went to the spot. The 'frock' of a girl child was lying nearby, which was prepared into a sealed parcel by the Police and memo Ex. PA, in this regard was attested by the witness.
16. Het Ram (PW-2), father of the girl testified the version, which he had reported to the Police. With regard to the Criminal Appeal No.704-DB of 2007 6 disappearance of his daughter he had also lodged a report at Police Station, Samalkha, on 22.07.2003. He is also one of the attesting witness to the memo Ex. PA, vide which 'frock' of his daughter (deceased) was taken into possession, by preparing a sealed parcel.
17. PW-3 Latur Singh stated that about 1¾ years back, appellant was arrested from the house of Sultan Singh. The Police took him to the spot from where the dead body was recovered.
18. PW-4 Narain Singh stated that on 19.07.2003, at about 2.30/3.00 pm he was present at the tubewell, installed in his fields, situated near the railway station. He saw that the appellant wearing black shirt and trouser, along with a girl aged about 8/9 years wearing frock, drank water from his tubewell and they went on the kacha path, towards 'jawar' crop fields. After that he saw the appellant on 25.07.2003 in the custody of Police in the same clothes, which he was wearing on 19.07.2003.
19. Lakhi Ram (PW-5), has his fields towards the southern side of the village. He stated that about 1¾ years ago, he had seen the appellant at about 4/4.30 p.m. wearing black shirt and trouser, going towards G.T. Road, walking swiftly. After 4/5 days, he saw the appellant in custody of the Police, at the tubewell of Narain Singh (PW4). The witness identified the appellant, to be the same person whom he had seen walking swiftly about 4/5 days before.
20. PW-6, Dr. Y.P. Singh, posted as Medical Officer, Government Hospital, Panipat on 25.07.2003, stated that he received application Ex. PF from the Police for conducting the postmortem examination on the dead body of a girl child. Since the dead body was in advanced stage of putrefication, it was referred to PGIMS, Criminal Appeal No.704-DB of 2007 7 Rohtak. The endorsement of the doctor is Ex. PF/1.
21. PW-7, Mukesh Kumar, photographer, took the photographs Ex. P1 and EX. P2 of the dead body lying in the fields of 'jawar' crop on 25.07.2003.
22. Dr. Sanjiv Malhotra (PW-8) was posted in the Department of Forensic Medicines, PGIMS, Rohtak on 26.07.2003. He conducted the autopsy on the dead body of Vijay Laxmi daughter of Het Ram, 9 years old female child. It was naked dead body emitting foul smell. Eye balls were missing, skin over the face was missing. The face; abdominal wall; both upper and lower limbs; pelvic area and organs of generation were showing gnawing effects. The vaginal swabs could not be taken. The doctor found the following injuries on the dead body:-
(i) There was a contusion of size 5 x 5 cms on the left side of the neck starting from the mid line and 3 cms below the angle of mandible. The underline tissues were showing ecchymosis.
(ii) There was a diffused contusions of size 2 x 2 cm on the right side of the neck. It was 2 cm below the angle of mandible. The underline tissues were showing ecchymosis.
In his opinion, the cause of death was manual strangulation, which was ante-mortem and sufficient to cause death in ordinary course of nature. The time that elapsed between the death and the postmortem examination, was between 3 to 7 days. Ex. PG, is the postmortem report. The doctor had also signed the inquest papers Ex. PH. He could not give specific opinion, if the child was raped before murder.
23. ASI, Rajinder Singh (PW-9) was posted as Moharrir Head Criminal Appeal No.704-DB of 2007 8 Constable (MHC) in Police Station Samalkha, with whom two parcels of clothes, one containing under-wear of the appellant and other the 'frock' of the victim, were deposited by the investigating officer on 25.07.2003. He entrusted these parcels to Constable Sukhwinder on 06.08.2003. for being deposited in the office of Forensic Science Laboratory (FSL), Madhuban. Constable Sukhwinder (PW-13) tendered his affidavit Ex. PR in this regard. Vide report Ex. PK, the Assistant Director, FSL, Madhuban, Haryana the human semen were detected on both the exhibits i.e. frock and 'under-wear'.
24. PW-10, Dr. A.K. Garg, Medical Officer then posted at CHC Samalkha, conducted the medico legal examination of the appellant, and found him to be physically fit and capable of committing sexual intercourse. Copy of his report is Ex. PL. Navy blue coloured underwear of the appellant was sealed and handed over to the Police alongwith the copy of the MLR and sample seal.
25. PW-11, Jai Pal, Patwari, prepared the scaled plan, Ex. PN on 11.08.2003 at the instance of Het Ram, complainant in respect of the fields, from where the dead body was recovered.
26. PW-12, Amar Nath, Sub Inspector (Retd.), is the investigating officer. He stated about taking into possession of the 'frock' lying near the dead body and preparing the same into a sealed parcel. He started the investigation on the statement of Het Ram, recorded by him.
27. The defence examined DW1, Head Constable Raj Kumar, who brought the daily diary register (DDR) dated 22.07.2003 of the Police Station, Samalkha and proved Ex. DB, the report lodged on that day by Het Ram, with regard to disappearance of his daughter. Criminal Appeal No.704-DB of 2007 9
28. Learned counsel for the appellant, has challenged the conviction of the appellant raising the following contentions:- (i) That the prosecution story of the appellant,accompanying the complainant and his family on 18.07.2003 is
(ii) That the prosecution evidence, regarding the victim last seen with the appellant is highly suspicious.
(iii) That the witnesses examined by the prosecution could not have possibly identified the appellant after one week, as they did not know him nor had seen him earlier in the village;
(iv) The circumstantial evidence relied upon by the prosecution does not form chain of events as would permit no conclusion other than one of guilt of the appellant; and
(v) That suspicion, however, grave cannot be a substitute of proof.
29. On the other hand, contention of the State Counsel is that the evidence of the victim last seen with the appellant convincingly proved by reliable witnesses, who have no ulterior motive to falsely implicate the appellant.
30. The first important factor would be that the appellant accompanied the complainant and his family from New Delhi for village Bodhwal Majri on 18.07.2003. The prosecution version to this effect is testified by PW-2, the father of the deceased. Learned Counsel for the appellant referred to the contents of DDR dated 22.07.2003 Ex.DB recorded at Police Station, Samalkha, in which this fact is not recorded. The DDR contains the version only to the effect that Het Ram and his family, came to village Bodhwal Majri on 18.07.2003 and that the girl, who was wearing a 'frock' went missing Criminal Appeal No.704-DB of 2007 10 at about 3.00 p.m. on 19.07.2003.
31. We are of the view that this was the usual casual approach of the Police, in recording such DDR reports, pertaining to a missing person, until it is revealed that some mishap had taken place with the girl. However, no question was put to the complainant (PW2) as to why the name of appellant having accompanied them to village Bodhwal Majri was not mentioned in the DDR. At that the complainant was not even aware, that his daughter has met a tragic end.
32. Otherwise there was absolutely no reason for Het Ram to set up an imaginary version and testified by him as PW2, that the appellant accompanied them to village Bodhwal Majri on 18.07.2003. PW2 stated in the cross-examination that the appellant was residing in his locality in Delhi and had been coming to his house quite often. Appellant was known to him for about 1½ / 2 years. This fact has been admitted by the appellant in his statement under Section 313 Cr.P.C. The complainant further stated that while they were preparing to come to Village Bodhwal Majri, the appellant expressed his desire to accompany them, to see the sister-in-law of Het Ram, who had suffered fracture of left arm. Even earlier to that, the appellant had come to his sister-in-law's house once or twice. While searching for his daughter, he had also gone to Delhi to enquire about the appellant and found that he had not returned there from village Bodhwal Majri. The above are the natural revelation of facts appearing in the cross-examination of the complainant making him a trust-worthy witness. The suggestion put to the complainant by way of defence that he had borrowed ` 25,000/- from the appellant with Criminal Appeal No.704-DB of 2007 11 an intention to not to return the money and thus falsely implicated the appellant in this case, has been denied. This plea was not even reiterated and is absolutely contrary to the defence plea taken by the appellant during his examination under Section 313 Cr.P.C.
33. SI Amar Nath PW12, stated in the cross-examination that after lodging the DDR report, the mother of the deceased had gone to Delhi in search of the appellant and it was found that he had gone to his native village in U.P. It was only after his arrival in Delhi that he was brought to village Bodhwal Majri by the mother of the child. It appears that on the strength of the above facts coming in cross- examination of PW-12 that during his examination under Section 313 Cr.P.C., the appellant set up a totally new defence that the wife of the complainant tried her best to woo him but he never succumbed to her attempts as he used to consider her as mother like figure and that the complainant was under an impression that his wife was having illicit relationship with him, which is the reason for his false implication in the case. This plea has to be rejected outrightly as the defence plea taken during the examination of the complainant (PW-2) is altogether different. The appellant has otherwise admitted that he was residing in the neighbourhood of the complainant and was on good visiting terms with them.
34. Learned counsel for the appellant contended that Kunta Devi, wife and Mahesh Kumar, son of the complainant have not been examined by the prosecution to corroborate the version. In view of the defence plea having been found to be absolutely false as it was set up during his examination under Section 313 Cr.P.C., in contradiction to the earlier defence plea taken in cross-examination Criminal Appeal No.704-DB of 2007 12 of the complainant (PW-2), the non-examination of the above witnesses causes no fatal injury to the prosecution case. Such an exercise was even not necessary, especially when the only ground taken to challenge the testimony of Het Ram was that he had borrowed ` 25,000/- from the appellant, which the complainant never intended to return. It is also a settled principle that it is not the quantity, but the quality of the evidence led by the prosecution, to support a fact in issue.
35. The above discussion leaves no manner of doubt that the prosecution version of the appellant accompanying the complainant on 18.07.2003 for village Bodhwal Majri or he left from there on 19.07.2003 could not be successfully attacked. The intention of the appellant, by offering himself to accompany Het Ram and family to village Bodhwal Majri by winning their confidence and his subsequent conduct reveals that he was keeping eye on the daughter of the complainant, for taking a chance to satisfy his sexual lust.
36. The other material circumstance relied upon by the prosecution, was in respect of the victim last seen with the appellant. For the appellant, there is two fold contention: (i) that the evidence of the last seen story, is not convincing; and (ii) that even if the evidence of the victim and the appellant last seen together is to be believed, this is not shown to be in proximity with the death of the victim, and therefore, the charges against the appellant would remain doubtful. Learned Counsel relied upon Ramreddy Rajesh Khanna Reddy and another V. State of A.P. (2006)10 Supreme Court Cases 172, Hatti Singh V. State of Haryana (2007) 12 Supreme Court Cases 471, Venkatesan V. State of Tamil Nadu (2008) 8 Supreme Criminal Appeal No.704-DB of 2007 13 Court Cases 456, State of Uttar Pradesh V. Ram Balak and another (2008)15 Supreme Court Cases 551, Sattatiya alias Satish Rajanna Kartalla V. State of Maharashtra (2008)3 Supreme Court Cases 210, and Criminal Appeal No.384-DB of 2002 titled Ravinder Kumar and another V. State of Haryana decided on 22.1.2008.
37. It is, therefore, to be seen whether the story of the victim and the appellant last seen together as held to be established by the trial Court is acceptable or not.
38. Narain Singh (PW-4) was present at the tubewell installed in his fields, situated near the Railway Station of the village on 19.07.2003. At about 2.30/3.00 p.m, he saw the appellant wearing black shirt and trouser alongwith a 8/9 years old girl child wearing frock, drank water from his tubewell and went towards the 'kacha' path leading to the fields. The appellant was wearing the same clothes, when he was seen in the custody of the Police on 25.07.2003.
39. Narain Singh (PW-4) has been extensively cross- examined, who withstood the test of scrutiny. The witness has no axe to grind with the appellant nor has any reason for falsely supporting the family of the complainant who belong to Delhi. The witness is a retired Subedar from the Army. The learned counsel for the appellant vehemently contended that the witness did not know either the appellant or the victim earlier, and there was no possibility of his identifying the persons whom he might have per chance seen about a week ago. The witness also stated in the cross-examination that he did not discuss with any resident of the village till 25.07.2003, of his having seen the victim and appellant together on 19.07.2003. Criminal Appeal No.704-DB of 2007 14
40. We are of the view that there was no occasion for the witness or anybody else to discuss about seeing the appellant and the victim together, as both were outsiders and not known to them. However, there is nothing improbable, rather it would be natural for both PW-4 and residents of a tiny village with a population of about 1500 people, to quickly recollect the identity of an outsider even after a gap of few days, especially when the said stranger is found wearing the same dress. This is exactly what PW-4, Narain Singh stated in the cross-examination that he recollected the description of the culprit and the clothes worn by him when he again saw him on 25.07.2003. The fact that in the statement made before the Police by the witness it was not recorded that the appellant and the child drank water from his tubewell is a minor contradiction. The witness rightly explained in the cross-examination that they did not speak to anybody about seeing the child in the company of the appellant as no occasion to build any sort of suspicion had arisen.
41. PW-4 has also been cross-examined on the location of the fields from where the dead body was recovered. PW-4 had seen the place where dead body of the child was recovered. It was at a distance of 3½ 'killas' from his fields on the kacha path. The field in which the dead body was found is abutting the kacha path.
42. Lakhi Ram (PW-5) the 'Namberdar' of the village Bodhwal Majri has similarly stated about seeing the appellant at about 4.00 or 4.30 p.m. wearing the black shirt and trouser on that day, walking swiftly towards the G.T. Road. After 4-5 days, he saw the appellant at the tubewell of Narain Singh, where the Police was also present. This witness was also extensively cross-examined and withstood the Criminal Appeal No.704-DB of 2007 15 test of scrutiny. When the witness saw the appellant walking swiftly, he was himself working in the fields. Otherwise, the appellant was not known to the witness prior to 19.07.2003.
43. The consistent statement of these witnesses coupled with of Het Ram, complainant belies the denial by the appellant that he did not come to village Bhodwal Majri on 18.07.2003 with Het Ram. The learned defence counsel did refer to the cross-examination of Het Ram (PW-2) to say that nobody informed him till 25.07.2003 about the appellant and his daughter seen together but that was obvious because no one knew about the fate which the girl had met during this period. Everybody was under an impression that the girl child was missing and it was so mentioned in the DDR dated 22.07.2003 (Ex. DB) also that the girl must have lost her way because she was new to the village.
44. The appellant has rather propounded one of the several defence(s) that in order to save the real culprit, he has been implicated falsely with ulterior motive, as already discussed. Let us examine that also.
45. PW-12 SI Amar Nath stated in the cross-examination that no other person was suspected of this crime. In the cross- examination Narain Singh (PW-4) stated that he does not know if any fight had taken place between four boys in front of his fields on 19.07.2003 and the Tata Sumo vehicle had struck the 'kacha' path in front of his tubewell. Another suggestion put to the witness was that Mahesh son of Sultan Singh was beaten up by the villagers on that day. Mahesh is 21/22 years old and then the suggestion is that in order to save the real culprit belonging to their own community, the Criminal Appeal No.704-DB of 2007 16 appellant has been falsely implicated. PW-5, Lakhi Ram has also denied the suggestion put to him by the defence that they have tried to save the real culprit.
46. There is infact not even an iota of evidence to enable the defence to cause suspicion on the prosecution evidence that the victim and the appellant were last seen together at a place which is near the fields, from where the dead body of the victim was recovered.
47. The site plan prepared by the investigating officer, is Ex. PO. As per the site plan, there is land of Lakhi Ram (PW-5) on two sides of the field from where the dead body was recovered. No question was put to Lakhi Ram (PW-5) about the distance between the place where the dead body was lying and his fields or from the spot where he saw the appellant walking swiftly.
48. It stands proved beyond any doubt that the girl went missing on 19.07.2003 and according to Dr. Sanjiv Malhotra (PW-8), the time of death and postmortem examination was between 3 to 7 days. The contention on behalf of the appellant that last seen theory comes into play when the time gap between the 'last seen together' and the death of the victim is so small and that possibility of a person other than the appellant being the author of the crime becomes probable, does not lend any support to the appellant, especially when the place where dead body was recovered was just closed by. It was for the appellant to explain where he left the girl after she was seen alive in his company and where he had himself gone.
49. It is proved in this case that the death of the girl was homicidal, which fact is not under challenge. From the report of the Criminal Appeal No.704-DB of 2007 17 Forensic Science Laboratory, Ex. PK, the doctor also found that the frock, which was sent for examination was having human semen. The underwear of the appellant was also though having human semen but that cannot be a crucial factor because no DNA test was done.
50. From the evidence led by the prosecution and the above discussion, the following circumstances stand convincingly proved:- (i) the appellant came to village Bodhwal Majri on 18.07.2003 along with Het Ram and his family and has has falsely denied this version;
(ii) the appellant left village Bodhwal Majri almost at the same time when the victim girl disappeared from the village; (iii) the victim was last seen with the appellant on 19.07.2003 and soon thereafter, the victim had died;
(iv) the death of the victim was homicidal;
(v) the appellant has not explained the circumstances as to where he left the girl child after they were last seen just close to the place from where the dead body of the girl child was recovered;
(vi) the human semen are found on the frock of the girl, recovered after 6 days from 19.07.2003 indicating the commission of rape on her.
51. The cumulative effect of all the circumstances would lead to the only hypothesis that it was the appellant, who caused the death of the victim after committing rape on her. These circumstances form such a chain of events as would permit no other conclusion except the one of guilt of the appellant and negative his innocence. The findings of the learned trial Court holding the appellant guilty of the charges framed against him, therefore, is based on correct appreciation of the evidence and the law applicable Criminal Appeal No.704-DB of 2007 18 to such cases.
52. The learned trial Court has, however, slightly erred in not imposing fine as a part of the sentence, which was mandatory. That, however, cannot provide any help to the appellant.
53. From the foregoing discussion, we find that the judgment of conviction and sentence dated 2.12.2005, recorded by the trial Court are based on the correct appreciation of evidence and law and the charges framed against him on both the counts have been rightly held to be proved. Accordingly, the findings recorded by it are affirmed. It is true that the trial Court erroneously did not impose any fine though mandated by law, nevertheless, we are not inclined to involve our suo-motu jurisdiction and enhance the sentence of the appellant in this regard, keeping in view, the social background of the appellant.
54. For the reasons recorded above, the appeal is devoid of merit and dismissed.
( Surya Kant ) ( R.P. Nagrath ) Judge Judge
August 17, 2012