CRA No.D-415-DB of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.D-415-DB of 2008 Decided on: 05.12.[SECTION]2 [ENTITY] s/o Sh. [ENTITY], r/o Village Badala, Tehsil and District Hissar. Appellant Versus [ENTITY] Respondent
CORAM HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE S.P.BANGARH Present Mr. [ENTITY], Advocate, for the appellant.
Mr.[ENTITY], Additional Advocate General, Haryana for respondent.
S.P.BANGARH, J The appellant has assailed the judgment of conviction dated 05.05.2008 and order of sentence dated 14.05.2008, passed by the learned Sessions Judge, Hissar in [CASE NUMBER], instituted on 22.05.2006, emanating from FIR No.106 dated 09.04.2006, under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] ('[ACT]' for short) of Police Station, Narnaund, whereby, he was convicted for commission of offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] and sentenced to undergo imprisonment for life and to pay fine of `5,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two years for commission of offence punishable under [SECTION] [ACT], to undergo rigorous imprisonment for life and to pay fine of `2,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for commission of offence punishable under [SECTION], and to undergo rigorous imprisonment for five years and to pay fine of `2,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for commission of offence punishable under [SECTION] [ACT]. All the substantive sentences imposed upon the appellant were ordered to run concurrently and period already undergone by him in custody, during investigation and trial, was ordered to be set off against the substantive sentences.
Case of the prosecution is that X (name kept concealed) daughter of [ENTITY] (complainant) was a student of 4th standard. On 08.04.2006, she had gone to see the marriage party of son of [ENTITY], but she did not return. She was searched for whole of night, but no clue about her could be found. On 09.04.2006, [ENTITY] son of [ENTITY] resident of Badala noticed a corpse lying in the field of his brother [ENTITY] and informed the villagers. Thereupon, the complainant (father of the deceased X) along with his brother [ENTITY], [ENTITY] and other persons went to the field of [ENTITY] and found X lying dead there. Her neck had been tied with a string and she was subjected to rape by some unknown person. She was murdered through strangulation and her corpse was thrown in the field in order to conceal the evidence. Complainant left [ENTITY] and [ENTITY] at the spot and went to police to report the matter and the police met him in the way and [ENTITY], ASI, Incharge police post recorded, the statement ibid Ex.PB of complainant [ENTITY] (father of the deceased X), which was read over and explained to the complainant who put his signature, thereon, in token of its correctness. [ENTITY], ASI put his endorsement Ex.PB/1, thereon, and sent the same to the Police Station, where formal FIR Ex.PB/2 was recorded by [ENTITY], ASI.
Thereafter, [ENTITY], ASI visited the place where the corpse of X was lying. He took the photographer with him and the latter took photographs of the corpse of the deceased X, as also, of the place of occurrence. [ENTITY], ASI lifted the blood stained earth and one pair of chappal and converted those into a parcel, which was sealed by him with his seal bearing impression 'RR'. He later seized that parcel vide memo Ex.PM, which was signed by [ENTITY] and [ENTITY]. He also prepared inquest report Ex.PH on the corpse of the deceased X and sent the same to the mortuary for autopsy along with request Ex.PG through [ENTITY] EHC and [ENTITY], Constable. He also prepared rough site plan of place where the corpse of deceased X had been lying. He also recorded the statements of [ENTITY] and [ENTITY].
In the meantime, [ENTITY], Station House Officer of the Police Station Narnaund also came at the spot and took up the investigation of this case. On 10.04.2006, [ENTITY], [ENTITY] produced [ENTITY] before [ENTITY] SHO in the presence of [ENTITY], ASI, who was arrested and interrogated. During interrogation, appellant made a confessional statement regarding commission of rape upon X and her murder and he also took the police party to the place of occurrence, where rape was committed upon the deceased. SHO prepared site plan Ex.PO and also recorded the disclosure statement Ex.PQ of the appellant, which was thumb marked by the latter and attested by [ENTITY], [ENTITY] and [ENTITY], ASI. Memo with regard to pointing out of place of rape by the appellant Ex.PQ/1 was also prepared, which was attested by [ENTITY], [ENTITY] and [ENTITY], ASI on the same day.
On 10.04.2006 itself, appellant was medico-legally examined at General Hospital, Hansi and doctor handed over sealed parcel containing the clothes of the appellant, which was seized by [ENTITY] SHO, vide recovery memo Ex.PR, which was attested by [ENTITY], ASI. On 20.04.2006, [ENTITY] , ASI recorded statements of [ENTITY] and [ENTITY], Patwari. On 25.04.2006, he also recorded the statements of [ENTITY] and [ENTITY], both Evening Head Constables.
During investigation, it transpired that appellant made extra judicial confession of his guilt before [ENTITY], [ENTITY] of village Badala (PW15) to the effect that he committed rape, as also, committed sodomy upon X (deceased) and later, he strangulated her neck with string of his payjama. Clothes of the deceased, blood stained earth, vaginal swab and underwear of appellant were sent to the Forensic Science Laboratory, Haryana, Madhuban, Karnal and the latter vide report containing two pages Ex.PT and Ex.PT/1 declared blood stained earth insufficient for analysis, pant of human origin and shirt material disintegrated.
After completion of investigation, Station House Officer of Police Station Narnaund, instituted police report under [SECTION] of the [ACT] ('[ACT]' for short) before the learned Illaqa Magistrate to the effect that it appears that the appellant has committed offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT].
On presentation of police report, copies of documents, as required under [SECTION] [ACT] were furnished to the appellant and the case was committed to the Court of Session for trial, who, framed charge under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] against the appellant, whereto, latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined [ENTITY], EHC as PW1, [ENTITY], ASI as PW2, [ENTITY], EHC as PW3, [ENTITY]. EHC as PW4, Dr.[ENTITY], Medical Officer, General Hospital, Hansi as PW5, Dr.[ENTITY], Medical Officer, General Hospital, Hansi as PW6, [ENTITY]. HC as PW7, [ENTITY], [ENTITY] as PW8, [ENTITY] as PW9, [ENTITY] son of [ENTITY] as PW10, [ENTITY] (complainant) as PW11, [ENTITY] as PW12, [ENTITY] ASI as PW13, [ENTITY], SI as PW14 and [ENTITY], [ENTITY] of village Badala as PW15 and closed evidence after tendering Forensic Science Laboratory report Ex.PT and Ex.PT/1.
After the closure of the prosecution evidence, the appellant was examined under [SECTION] [ACT], wherein, he denied the allegations of prosecution, pleaded innocence and false implication in this case.
Appellant gave his own version that he was arrested in this case in the evening of 09.04.2006 by the police and was implicated due to party faction in the village in this case at the instance of [ENTITY], [ENTITY]. He further stated that he has not made any confessional statement and all the witnesses have been cooked up by the police only to strengthen the case.
Appellant was called upon to enter in defence, but he closed the same without examining any witness in defence.
After hearing both the sides, learned trial Court vide impugned judgment and order of sentence, convicted and sentenced the appellant, as described in the first paragraph of this judgment. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court, has come up in this appeal with prayer for acceptance, thereof, and for acquittal of the charge framed against him.
Learned counsel for the appellant and learned Additional Advocate General for the respondent have been heard and record of the learned trial Court perused with their assistance.
First of all, it is to be seen as to what prosecution witnesses have deposed against the appellant:-
PW1 [ENTITY], EHC tendered his affidavit Ex.PA in evidence.
PW2 [ENTITY], ASI also testified that on 09.04.2006, when he was posted in police station Narnaund, received statement Ex.PB of [ENTITY] with endorsement Ex.PB/1 of [ENTITY], ASI and on the basis, thereof, he recorded formal FIR Ex.PB/2. He further testified that he made his endorsement Ex.PB/3 on Ex.PB and sent special report through [ENTITY] EHC to Illaqa Magistrate and to higher police officers.
PW3 [ENTITY], EHC also tendered in evidence his affidavit Ex.PC.
PW4 [ENTITY], EHC also tendered in evidence his affidavit Ex.PD.
PW5 Dr.[ENTITY], Medical Officer testified that on police request Ex.PE, on 10.04.2006, he medico-legally examined [ENTITY] son of [ENTITY], 23 years male, resident of Badala having history of performing rape, who was moderately built, well nourished male having abrasion on both the knees; there was an abrasion on the left cheek in between left eye and left ear; there was no bleeding in both the lesions. Another abrasion was seen on the forehead on right side. All the injuries were covered with the scabs. Duration of the injuries was declared between 24 to 48 hours. He did not have any spinal chord deformity; he had well developed beard, mustaches, pubic and auxiliary hairs. His external genitalia, i.e testis, scrotum and penis were well developed and there was no injury to the penis or glans; smegma was absent. He further opined that there was nothing to suggest that why he cannot perform sexual intercourse. He further testified that he handed over to the police, sealed parcel containing underwear of [ENTITY] having six seals along with sample seal. He brought the original MLR and proved carbon copy Ex.PF, thereof. He further testified that injuries on the person of [ENTITY] could be sustained by nails by a lady saving herself from the assailant at the time of her rape; possibility of injuries could be possible at about 08:30 p.m on 08.04.2006.
PW6 Dr. [ENTITY] also testified that on 09.04.2006, on police request Ex.PG, followed by inquest proceedings Ex.PH, a board of doctors was constituted to conduct the autopsy on the corpse of X daughter of [ENTITY] consisting of him and Dr.[ENTITY]. They started autopsy at 05:15 p.m on 09.04.2006. He further testified that it was corpse of eight years old female, resident of Badala; length of the body was 4'3" and there were four well defined and slightly depressed ligature mark in the middle and upper part of front of neck originally placed. The four sides on the left side collectively joint laterally continues posteriorly; length was 27 cm, breadth 0.2 cm to 0.5 cm, posteriorly breadth was 1.0 cm. The four sides on right sides first joint and form two ligature marks and afterwards one continued posteriorly. There was a reddish abrasion on the right side of the neck size 0.75 x 0.5 cm. He also testified that after the description of the ligature mark around neck, the other injuries were the following:-
1. [ENTITY] was ruptured. Clotted blood was present size 2.5 cm x 2 cm. Easily admitting one finger:
2. There was injury to perennial area, size was 3 cm x 2.5 cm, clotted blood was present and
3. Two reddish contusion over the left feet were there of size 5 cm x 4 cm and 4 cm x 4 cm.
He further testified that in his opinion, cause of death was due to asphyxia as a result of strangulation; it was ante-mortem in nature and sufficient to cause death in ordinary course of nature. There were vaginal perennial injuries (anal injuries) and these injuries were possible by vaginal intercourse and anal intercourse. The probable duration of injury and death was variable and between death and post-mortem was 12 to 24 hours. He further testified that after autopsy, he handed over the corpse, autopsy report, police papers (No.1 to 16) duly signed by them, glass vial having vaginal swabs, parcel containing clothes of deceased, parcel of [ENTITY] which was removed from the neck of deceased X and sample of seals to the police.
PW7 [ENTITY], HC tendered in evidence his affidavit Ex.PK.
PW8 [ENTITY], [ENTITY] [ENTITY] testified that on the pointing of [ENTITY] and [ENTITY], [ENTITY], he prepared scaled site plan Ex.PL with correct marginal notes.
PW9 [ENTITY] testified that on 09.04.2006, he went to the spot and took eight snaps of the corpse, which are Ex.P4 to Ex.P11 and negatives, thereof, are Ex.P12 to Ex.P19.
PW10 [ENTITY] testified that her niece X was aged about 8/9 years and at about 8/9 p.m, she had gone to see the marriage of some [ENTITY] boy in the village Badala, who did not return and they searched her throughout the night, who could not be found and on the next day, he was told by [ENTITY] that a corpse of a girl was lying in the fields of wheat crop and, thererupon, he, along with [ENTITY] and [ENTITY] went to that field and identified that corpse of his niece and then [ENTITY] was sent to inform the police and he along with his brother [ENTITY] remained near the corpse and found that clothes of the deceased were torn and she was having blood stains and a knot was tied over her neck i.e string of the clothing was tied. He further testified that police came to the spot and inspected the spot and lifted chappal of the deceased, as also, the blood stained earth from near the corpse of the deceased X and those articles were sealed into a parcel, that was seized vide memo Ex.PM.
PW11 [ENTITY] complainant testified that her daughter, aged about eight and half years was a student of 4th standard and about one year and one and half months back, at about 08/08:30 p.m, she had gone to see the marriage of [ENTITY] and she did not return. He further testified that they searched her throughout the night and in the next morning, [ENTITY] told that a corpse of a girl was lying in a field and thereupon, he alongwith his brothers [ENTITY] and [ENTITY] went to that place and found the corpse of her daughter, who was subjected to rape and after strangulation with string of salwar or payjama, she was killed and a string was around her neck. He further testified that he left both his brothers on the spot and when he was going to lodge the report with the police, police met him near water works and his statement was recorded. String Ex.P21, which was tied around her neck, was produced during the deposition of this witness.
PW12 [ENTITY] testified that on 08.04.2006, when he was returning from his field, [ENTITY] and X deceased daughter of [ENTITY] of his village were going towards the field and they met him near the pond of the village and on the next day at about 04:30 p.m, he learnt about missing of X and he came to know that she has been raped and strangulated to death and he gave his statement to the police.
PW13 [ENTITY], ASI partly investigated the case and deposed on the lines of investigation.
PW14 [ENTITY], SI also partly investigated the case and also deposed on the lines of investigation.
PW15 [ENTITY], [ENTITY] of village Badala testified that he is the [ENTITY] of the village Badala and appellant came to him on 10.04.1006 at 09/09:30 p.m, and told him that on 08.04.2006 at about 08:30 p.m, he enticed away X (deceased), daughter of [ENTITY], aged about eight years to the fields of [ENTITY] and committed rape and sodomy with her and apprehending that she might reveal these facts to her parents, he strangulated her with the string of payjama. He further testified that he has committed a mistake and police has come to know about this fact and he further requested him (PW15) to produce him before police, so that he can serve the sentence for the crime he has committed and, thereupon, he took him to police and in the way, near water works of his village, [ENTITY], ASI, as also, SHO were found present, before whom, the appellant was produced and the police arrested him and then the appellant was interrogated who made statement Ex.PQ and, thereafter, he took the police also to the place of occurrence where he committed rape, as also, sodomy with the deceased and pointing memo Ex.PQ/1 was also prepared.
Learned counsel for the appellant mainly contended that there was no injury on the back of the deceased, therefore, due to absence of this injury, it is arduous to hold that the rape was committed upon the deceased. He also contended that there was delay in lodging the FIR, as also, the witness who saw lastly the appellant and deceased together is not reliable. He also contended that extra judicial confession, allegedly suffered by the appellant before PW15 [ENTITY], is also not reliable. He also contended that [ENTITY], alleged witness, who had seen the corpse of the deceased lying in the field of [ENTITY], has also not been examined.
On the other hand, learned Additional Advocate General for the respondent contended that the impugned judgment and order of sentence do not suffer from any illegality or infirmity and, therefore, these should not be interfered and while, on the contrary, these should be upheld and affirmed.
We have given our thoughtful consideration to the contentions raised by both the learned counsel for the parties and do not find any merit in the contentions raised by learned counsel for the appellant. So far as, the lodging of FIR is concerned, that cannot be held to be fatal to the case of prosecution, as the appellant was not named as accused. This delay could be held to be fatal to the prosecution, if the appellant had been named as accused therein, and then it would have been open to the appellant to canvass that the delay has been used for foisting a false case upon him. So, the contention raised by the learned counsel for the appellant, in this regard, being devoid of merit is, hereby, repelled.
In his examination under [SECTION] [ACT], the appellant has taken a stand for the first time of party faction in the village. Strange enough, he did not put any suggestion to the prosecution witnesses that he has been implicated falsely in this case due to party faction in the village. So, this plea that the appellant has been implicated in this case due to party faction in village is perfunctory in nature and the same having not been corroborated by any evidence must be repelled.
So far as, the last seen evidence of PW12 is concerned, the same cannot be held to be unreliable, as contended by the leaned counsel for the appellant as the evidence of this witness, who was subjected to very lengthy cross examination during trial, could not be shattered. Even, it was not put to PW12 that there was party faction in the village and due to this reason, he testified against the appellant. Evidence of PW12 was rightly not repelled by the learned trial Court. The fact remains that the appellant was seen with the deceased X before the occurrence. That being so, it was for the appellant to explain as to when he departed from the company of the deceased. In the absence of such explanation, it must follow that the deceased was in the company of the appellant, when she died unnatural death due to strangulation with string. There is nothing on the record to suggest that the deceased committed suicide. So, it was death due to strangulation and only the appellant had occasion to do so as, he was lastly seen in the company of the deceased by PW12.
Hon'ble Delhi High Court in Rohit Dhingra and another v. State [SECTION]2(2) JCC 820, held that the cases where prosecution relied on evidence of deceased having been lastly seen in the company of the accused, too are species of circumstantial evidence cases. On the basis of this judgment, reliance can be placed upon the testimony of PW12 and it has to be held that the appellant committed the murder of deceased, as he was lastly seen in her company by PW12.
Reliance can also be placed upon Rajendra Pralhadrao Wasnik v. The State of Maharashtra [SECTION]2(2) RCR (Crl.) 696, wherein, the victim was aged three years and there was no eye witness. Accused was convicted and sentenced to death on the basis of last seen evidence, which was successfully proved by the prosecution. In this judgment, accused failed to explain circumstances in his statement under [SECTION] [ACT], he only stated that the false case was registered against him.
The facts of the case in hand and of the case covered by the judgment of the Hon'ble Apex Court ibid are similar and, therefore, on the basis of evidence of PW12 having seen deceased and appellant lastly together, the latter must be held guilty of commission of murder of the former.
Even evidence of last seen is not the only evidence in this case, there is also evidence of PW15 before whom, the appellant suffered extra judicial confession of his guilt of having killed the deceased after commission of rape. PW15 was also subjected to very lengthy cross examination by the learned counsel for the appellant before the learned trial Court, but long cross examination failed to elicit anything worth the name which could possibly cause any dent in his testimony. No suggestion has been put to this witness that due to party faction in the village, he deposed against the appellant. Even when the police went to the village for getting conducting medical examination upon the boys of the village, appellant left that place for fear of being caught up by the police there and that would have created a lot of tension in the appellant and therefore, in order to mitigate his psychological pain, he disclosed his guilt before PW15, who was the then [ENTITY] of the village.
Indeed, no suspicious circumstance surrounding extra judicial confession has been pointed out by the learned counsel for the appellant. This extra judicial confession could be held to be doubtful only, if it would have been proved on the record that the same is surrounded by suspicious circumstances. It was held in Munna Kumar Upadhyaya @ Munna Upadhyaya v. State of A.P. Tr. Pub. Prosecutor [SECTION]2(3) Recent Apex Judgments (R.A.J) 185 that extra judicial confession if voluntary and true and made in a fit state of mind, the same can be relied upon by the Court. It was also held that a confession can be relied upon and conviction can be founded, thereon, if the evidence about the confession comes from the mouth of the witnesses, who appeared to be unbais not even remotely inimical to the accused and in respect of whom, nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused. No such circumstance has come on the record to connect that PW15 had a motive of attributing extra judicial confession to the appellant.
Reliance can also be placed upon the judgment of Hon'ble Supreme Court of India in Aftab Ahmad Anasari v. State of Uttaranchal [SECTION]0(1) JT 424, wherein, accused who committed rape and murder made confession before a person for the reason that he was ex- sarpanch of the village and he was under an impression that witness would be able to help him by approaching the police. In this judgment, extra judicial confession was relied upon to convict the accused by holding that though extra judicial confession is considered to be a weak type of evidence by the Courts, yet it was held that there is neither any rule of law nor had any prudence that the evidence furnishing extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence leading to extra judicial confession can be acted upon, if the same comes from the mouth of witness, who appears to be unbaised and in support of him, even remotely nothing is brought out, which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. No motive can be ascribed to PW15 to testify falsely in this case and to ascribe extra judicial confession to the appellant. So, the judgment (supra) is fully applicable to the case of respondent.
Sniffer dogs in this case were also pressed into service. Probably they could not point towards the appellant as by that time, he would have changed his clothes. Medical evidence of PW6 indicates commission of rape and sodomy upon the deceased aged about eight years. She was strangulated by the appellant, as per his extra judicial confession suffered before PW15.
So far as, the absence of injury on the back of the deceased is concerned, it was held by the Hon'ble Calcutta High Court in [PRECEDENT], that the absence of injury on the back of prosecutrix is not fatal. So, due to absence of injury on the back of the prosecutrix, it cannot be held that she was not raped.
Hon'ble Allahbad High Court in [PRECEDENT], held that the fact that no injury on the back of the prosecutrix was shown in the medical evidence, will not be sufficient for discarding testimony of the prosecutrix, as also, medical evidence.
Question no.10 was put to the appellant during his examination under [SECTION] [ACT] to the effect that injuries were found having abrasions on both the knees and also on his left cheek in between left eye and left ear and also on forehead on right side, which were covered with scabs. The appellant in his answer failed to explain the circumstances, whereunder, he suffered these injuries. In the absence of such explanation, it must be held that victim (deceased) resisted rape and caused injuries to the appellant with her nails.
Even PW5 Dr. [ENTITY], Medical Officer, who conducted medical examination on appellant testified that possibility of injuries on his person having been sustained by nails from a lady saving herself from the assailant at the time of rape could be possible, as also, these injuries could be possible at about 08/08:30 p.m on 08.04.2006, which is the time and date of commission of rape and murder of X (deceased). Evidence of PW5 during cross examination could not be shattered. He categorically testified during cross examination that the injuries on the face of [ENTITY] could not be possible by fall. He also testified that injuries on the penis of a person who committed rape on a virgin girl are not necessary. He denied the suggestion of the learned counsel for the appellant before the trial court that injuries on the person are bound to occur if he commits rape on a virgin girl. So, medical evidence confirms commission of rape and sodomy upon X (deceased) and her death later through strangulation with a string.
In view of last seen evidence of PW12, as also, in view of evidence of extra judicial confession of the appellant given by PW15, it must follow that only the appellant committed rape and sodomy upon the deceased and strangulated her to death. Learned trial Court, thus, rightly held him guilty of commission of offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] and rightly convicted and sentenced him vide impugned judgment of conviction and order of sentence, which ought to be and are, hereby, upheld and affirmed.
Resultantly, the appeal fails and is, hereby, dismissed.
([ENTITY]) ([ENTITY]) JUDGE JUDGE December 05, [SECTION]2 mamta