…1… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.536 of 2000. Reserved on:12.07.2011. Decided on: August 10, 2011 ____________________________________________________ State of H.P. …Appellant. Versus Ramesh Kumar & Another …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? Yes. For the appellant: Mr.R.K.Sharma, Sr.Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For respondent No.1: Mr.Rajesh Verma, Legal Aid Counsel. For respondent No.2: Mr. Ashok Chaudhary, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of Code of Criminal Procedure against the judgment dated 30.6.2000, passed by Learned Sessions Judge, Hamirpur, H.P., in Sessions Trial No. 04 of 2000, acquitting the accused- respondents for the offences under Sections 376(2) (g) and 302 read with Section 34 of the Indian Penal Code in respect of the offence of sexual assault and murder of victim / deceased. 2. The prosecution story, in brief, is that on 6.5.1999, …2… victim / deceased aged about 11 years, a student of 6th standard of Government Senior Secondary School, Rail, District Hamirpur, did not come back from the school. Despite exhaustive search also her whereabouts were not known. Subsequently, Smt.Meena Kumari (PW.1), the mother of the victim / deceased, made search along with Chanchla Devi and her husband. During search, the victim / deceased was found lying on the ground in Gamtyala Nullah, face towards sky, tied with dupatta around her neck. On seeing the dead body, Sh.Basudev (PW.3), the father of the victim / deceased, became speechless and regained consciousness after being fetched water, PW.3 was giving signal by raising two fingers. (PW.3) was admitted in District Hospital for treatment w.e.f. 6.5.1999. On being discharged on 9.5.1999, when reached home, he disclosed the incident to his elder brother. In the mean time, Jai Chand (PW.9), a retired teacher while coming to Rail, came across both the accused, to whom accused- respondents confessed that they have raped and killed the victim / deceased. The accused-respondents were arrested on 9.5.1999. After investigation, accused persons were charged for the aforesaid offences and were tried by learned Sessions Judge. 3. In order to prove its case, prosecution examined as many as 25 prosecution witnesses, whereas, the accused through their statements under Section 313 of Cr.P.C., have …3… denied the prosecution case and pleaded their innocence. 4. PW-10, Dr.N.S.Dogra, Medical Officer, District Hospital, on application (Ex.PW.10/A) of the prosecution, conducted the post-mortem examination of the victim / deceased on 7.5.1999 and noticed following injuries on her person:- 1. A bruise on the right cheek purplish red in colour 4 cm x 3 cm almost circular. 2. Ante-mortem imprint abrasion just below the left eyebrow 0.75 cm x 0.5 cm. 3. Ante-mortem three abrasions on the posterior lumber region. Upper 0.5.cm x 0.5 cm. Middle 3 mm x 3mm lower, 5 mm x 3mm. Dark red and dry. Dr.N.S. Dogra (PW.10) also noted mark of ligature on the neck and also observed white dupatta present around the neck transversely at the level of thyroid cartilage single loop with single knot at right side of the neck. Bamboo leaves with a wooden piece in the layers of dupatta, soiled with blood stains at multiple places were noticed. After medical examination, it was revealed that there was grooved ligature mark which was hard leathery parchment like and was situated at thyroid cartilage transversely and absent at back of neck and extended anteriorly and laterally towards both sternocleidomistoid muscles posterior borders ligature mark 9 cm x 3 cm on left side and 10 cm x 3 cm on right side. Position of knot has been shown in the diagram in his post-mortem examination report. …4… PW-10 has observed as below:- “Mark of ligature and ligature. White dupatta present around the neck transversely at the level of thyroid cartilage single loop with single knot at right side of neck. Bamboo leaves with a wooden piece in the layers of Dupatta. Dupatta was soiled with blood stains at multiple places. Dissection of neck Ecchynosis present under the ligature mark. 1. Subcutaneous tissue above the ligature congested. 2. Strap muscles congested and swollen above the ligature. 3. Fracture of both the superior horns of the thyroid cartilage present. 4. Hyoid bone intact.” PW-10 has further observed as under:- “White salwar torn anteriorily through stitch line 33 cm and in the perineal region 28 cm. Brown underwear torn transversely through stitch line 6.5 cm in the area covering vaginal region with hardened stain on the perineal region. Pubic hair matted with dried secretions on labia majora. Auxiliary hair present. Breast not fully developed. Hymen absent. Vagina admits one finger (index). No lacerations detected in the vagina or introitus. Secretions present. Uterus – nulli – parous. Cervix normal. No injury detected on private parts. Swab for smear was taken from stains from laiba introitus, vagina and uterus. Pubic hair preserved. Nail clippings taken for analysis. Dry leaves of bamboo tree and straw on hair, Dupatta and clothes pubic region.” PW.10 Dr.N.S. Dogra in his opinion has indicated that victim / deceased died due to ante-mortem strangulation leading to asphyxia and subsequently indicated clear opinion …5… that the victim / deceased was sexually assaulted. 5. Dr.K.C.Kaushal (PW.11), the then Medical Officer in District Hospital, Hamirpur, took the blood samples of accused Ramesh Kumar and Sushil Kumar on 19.7.1999. Blood samples were sealed in a parcel and were handed over to Bakshi Ram. 6. Smt.Meena Devi (PW.1), the mother of the victim / deceased, has stated that she had one son aged about 14 years and one daughter studying in Senior Secondary School, Rail. On 6.5.1999, her daughter went to school but did not return back. On inquiry from other students, she was told by one Nisha Kumari that the victim / deceased separated from Soni-Ki-Kothi to take up the short-cut path, however, when PW.1 went alongwith her husband / Basudev (PW.3) in search of victim / deceased, after observing the dead body of her daughter in Gamtyala Nullah, (PW.1) cried loudly, then her husband and Chanchla Devi also arrived at the spot. PW.1 noticed salwar and underwear in torn condition and also teeth- biting signs on the face of victim / deceased. Duptatta was tied around the neck. Victim / deceased was wearing white trouser and coloured shirt as her school uniform. School bag was also lying on the side of the dead body. PW.1 also noticed that her daughter / (victim / deceased) was subjected to sexual intercourse and thereafter she was killed. Many other persons assembled on the spot. Her husband became speechless on seeing the dead body of victim / deceased. …6… PW.1 has further stated that her Jeth (elder brother of her husband) also came on the spot, on whose information, police came on the spot. 7. Sh.Hari Om Sharma (PW.2) in his endeavour to support the prosecution case has stated that he was informed by his son Aman about the death of victim / deceased, when he went to the spot, he also observed the dead body of the victim / deceased lying in Gamtyala Nullah. Hari Om Sharma (PW.2) has further stated that police came on the spot on the information given by him. One Chappal of the victim / deceased was recovered on the path. In cross-examination, Sh.Hari Om Sharma (PW.2) reiterated his statement made in examination in chief. PW.2 has also indicated that villagers from Baroti, Rohal and Darkola had also arrived on the spot. 8. Sh.Basudev Sharma (PW.3), the father of the victim / deceased, stated in the same manner as has been stated by Sh.Hari Om Sharma (PW.2). In addition PW.3 has also stated that in his endeavour to search of victim in the company of his wife (PW.1), one another lady, namely, Chanchla, he noticed both the accused on 6.5.1999, going at a distance of 50 yards from the dead body of the victim / deceased, in the meantime, Basudev Sharma (PW.3) heard the cries of his wife (PW.1) and on reaching the spot, PW.3 observed that victim / deceased was lying dead PW.3 became speechless and was …7… taken to hospital for treatment. PW.3 has further stated that he remained in hospital till 9.5.1999, except he was taken to his house on 7.5.1999 for participating in the cremation ceremony of his daughter. In cross-examination, Sh.Basudev Sharma (PW.3) has stated that he had seen both the accused on the fateful day and after that he observed them on 3.4.2000 in the Court while making deposition. PW.3 has further stated that on 10.5.1999 or 11.5.1999, he was neither taken by the police to identify the accused nor any identification parade was conducted by the police. PW.3 has further stated in cross-examination that on 7.5.1999 onwards, accused Ramesh Kumar, Sheelu, Shashi Kumar, Naresh Kumar and one Ravi Kumar were interrogated and there were many bushes and trees near the Nullah where the dead body was lying. PW.3 has stated that he was mentally alert on 6.5.1999, and on 7.5.1999, he neither talked to any doctor or nurse nor anybody. It was only 9.5.1999, PW.3 spoke to the doctor and nurse present in the hospital. Police also arrived at the hospital on the very same day. On 9.5.1999, PW.3 deposed the incident to his elder brother Satya Dev Sharma. PW.3 had noticed the presence of both the accused at a distance of 15-20 yards on 6.5.1999. Though there appears minor contradiction, that on 6.5.1999 Satya Dev Sharma had also arrived on the spot, who informed the police and on his information, police had arrived at the place of occurrence at …8… about 5.30 or 6.00 P.M., however, since Sh.Basudev (PW.3) became speechless after observing the dead body of victim / deceased, as such, PW.3 informed his elder brother about the incident only on 9.5.1999. 9. PW-2, Hari Om Sharma, BDC Member, had supported the prosecution case by stating that he also noticed dead body of victim lying face upward wearing school uniform, salwar and underwear of the deceased were in torn condition. PW-2 has further stated that dupatta was tied around the neck of the deceased. PW-3 Basudev became speechless after observing the dead body of the victim. 10. PW-4, Chanchla Devi, an independent witness, who accompanied Meena Kumari (PW-1) and Basudev (PW-3), the father of victim, also observed the dead body of the victim in the same condition as has been observed by PW-2, PW-4 has also stated that PW-1 started crying and on hearing her cries, PW-4 also reached at the spot, followed by Basudev (PW-3). They noticed that the neck of deceased was tied with dupatta and after seeing the same, PW-3 lost his voice and was only able to give signal. In cross- examination, PW-4 reiterated her testimony as made in examination-in-chief. 11. PW-5, Nisha Kumari, has stated that she was studying in the same school where the deceased was studying. PW-5 has deposed that victim / deceased used to accompany her while going to school, though PW-5 was of different village. …9… PW-5 further deposed that on 6.5.1999, PW-1 Meena Devi, the mother of victim, enquired from PW-5 about the whereabouts of victim, upon which, PW-1 was apprised by PW-5 that victim separated from her on the way known as “Sonaro-ka-Kotha” on the pretext that her mother would come to meet her. PW-6, Hans Raj, witnessed the dead body and stated that police conducted the inquest Ext.PW-6/A which bears his signatures along with Satya Dev. PW-7, Raj Kumar, Photographer, had took photographs of the dead body at ‘Gumtayala Nala’ which are Ext.P-4 to Ext.P-9 and their negatives are Ext.P-10 to Ext.P-15. PW-8, Bipan Kumar, an independent witness, has stated that he was running a Halwai shop at Rail where both the accused Ramesh and Sushil Kumar came to the shop of PW-8 and accused Sushil Kumar purchased sweets and Samosas of `10/- at around 1 or 1.30 P.M. on 6.5.1999. PW-8, in his cross-examination, has further stated that accused came and purchased sweets and went away. PW-9, Jai Chand, (a retired teacher in the year 1990) stated that on 8.5.1999, at about 8.30 A.M., while going from his house to Rail came across accused persons in the house of Bhagwan Dass in village Baroti where both the accused confessed that they raped and killed the victim and requested PW-9 to save them. PW-9 advised them to go to Police Station and PW-9 accordingly went to Rail and narrated …10… the incident to the police. On 9.5.1999, PW-9 was associated by the police in the investigation and half pant (white in colour), having two pockets on both sides, was got recovered as handed over by accused Sushil Kumar to the police, was taken into possession by the police vide memo Ext.PW-9/A. PW-9, however, witnessed the seizure memo. PW-9 further stated that village of accused Ramesh was about 2 kilometers from his village and he knew accused Ramesh since past as he was working as a labourer on a tractor by which sand, Bajri and stones were collected. PW-9 further stated in cross examination that when he visited the house of father of victim (Basudev PW-3) on 6.5.1999 and to the spot, where the dead body of victim was lying, at that time Bikram Chand, Krishni Devi, Paino Ram, Shivo Devi, Kehro Devi, Kulwant Singh, Asha Devi and accused Sushil Kumar were also present at the spot. When dead body of victim was lifted from Gamtayal Nala, accused Sushil Kumar accompanied the dead body of deceased up to Naunghi and the accused, along with other villagers, participated the cremation of the victim / deceased. Again on 9.5.1999, PW-9 went to the police, however, on 8.5.1999, PW-9 attended his school, namely, High School, Bari and the distance of the school was 3 – 4 kilometers from the house of PW-9. 12. PW-12, Madan Lal, at the relevant time, was posted as Language Teacher in Senior Secondary School, Rail …11… and was Class-Incharge of 6th standard in which the victim was the student. PW-12 had produced the original attendance register indicating that on 6.5.1999, victim / deceased was present in the school right from 8 A.M. to 2 P.M. and Ext.PW-12/A was the true extract of the original attendance register. PW-12 further stated in cross-examination that on 5.5.1999, victim was absent from school and has also denied that the victim was absent from school on 6.5.1999. Testimony of PW-12 indicates that the victim had attended the school on 6.5.1999. PW-13, Partap Singh, after visiting the spot, prepared Shajra Aks Ext.PW-13/A, Misal Haquiat Ext.PW-13/B and Khasra Girdawari Ext.PW-13/C. PW-14, Constable Partap Chand, tendered affidavit Ext.PW-14/A and on 6.5.1999, statement Ext.PW-1/A was received by PW-14 through Constable Pardeep Kumar and on the basis of such statement, F.I.R. Ext.PW-14/B was recorded on 8.5.1999, three samples were received from Hamirpur through Constable Khem Raj, out of which one was containing viscera, the other was containing clothes of the deceased and the third one was containing the slides. PW-14 has further stated that he received a telephonic message from Hari Om Sharma (PW-2) about the incident and thereafter report Ext.PW-14/C was recorded. 13. PW-15, Charan Singh, LHC, had taken out the case property from the office of Superintendent of Police and deposited the same in FSL Junga. PW-16, HC Ravinder Singh, …12… PW-17, Constable Roshan Lal, PW-18, LHC Khem Raj and PW-19, Constable Kuldeep Singh are the formal police official witnesses. 14. PW-20, Dr.R.P.Narotra, Medical Officer, PHC, Sera, on the police application Ext.PW-20/A, examined accused Ramesh Kumar on 9.5.1999 at about 6.30 P.M. and found him capable to perform sexual intercourse. PW-20 has also stated that underwear worn by accused Ramesh Kumar was sealed in a parcel and swab of gland penis were taken and sealed and on the application Ext.PW-20/C of Police Department, accused Sushil Kumar was also examined. He was also found capable to perform sexual intercourse. In cross-examination, PW-20, has stated that no injury was found on the penis of accused Ramesh Kumar. Similarly no injury was found on the private part of accused Sushil Kumar. PW-21, Dr.K.C.Chopra, administered treatment to PW-3 Basudev on 6.5.1999 at 10 P.M. regarding his ailment that he was not speaking after observing dead body of his daughter, though the patient was understanding everything and obeying the verbal commands. PW-21, in his cross-examination, has stated that he also examined PW-3 (Basudev) on 8.5.1999 and 9.5.1999, who, due to psychological trauma, was not able to speak, however, was able to write. 15. PW-22, HC Prabhu Ram and PW-23, MHC Baljit Singh, are formal witnesses. PW-24, Rulia Ram Sharma, …13… Statistical Assistant in the Office of Additional Registrar (Deaths & Births), Zonal Hospital, Hamirpur, verified the birth certificate of victim / deceased. PW-25, SI / SHO, Bakshi Ram, investigated the case after proceeding to the spot, prepared inquest papers, took into possession Chappal, school bag of the deceased and got conducted the post mortem examination of the victim and arranged sending PW-3 to Hospital and during investigation also gathered information that the accused persons had purchased sweets on the said date and arrested both the accused persons on 9.5.1999 and took into possession half pant of accused Sushil Kumar vide Ext.PW-9/A and got examined both the accused in CHC Nadaun. PW-25 has further deposed that on 8.5.1999, he made the search of the accused and recorded the statement of Jai Chand (PW-9), who disclosed that the accused had confessed the offence before him. On 9.5.1999, accused Ramesh Kumar and Sushil Kumar were arrested and accused Sushil Kumar produced his half pant which was taken into possession vide memo Ext.PW-9/A and the accused identified the place of incident. On such indication, spot map Ext.PW- 25/B was prepared. On the same day, both the accused were medically examined in CHC Nadaun. On 13.5.1999, an application was preferred to CMO for blood sample of accused for DNA purpose and after obtaining the blood sample, the same was deposited with MHC Nadaun intact. …14… PW-25 has further stated that on 6.6.1999, after receiving the chemical report from Junga, blood sample of both the accused, along with other case property, was sent to Director DNA, Calcutta and on 17.6.1999, the Constable returned with the case property back as the Laboratory at Calcutta failed to analyze the sample due to over load and advised to send the same to any other laboratory. PW-25 has further stated that on 23.6.1999, PW-25 procured Sajra Aks PW-13/A, Misal Haquiat Ext.PW-13/B and Khasra Girdawari Ext.PW-13/C from Patwari and the case property, which was returned from Calcutta, was again sent to DNA Test to Hyderabad through Constable Partap Chand and Roshan Lal. The case property, except the blood samples, was retained by the laboratory at Hyderabad and the officer who brought the blood samples was advised to bring the fresh blood samples as the earlier blood samples had degraded. On 19.7.1999, application Ext.PW-11/A was given to Chief Judicial Magistrate in order to take the blood samples of the accused. Identification cards were separately prepared which are Ext.PW-11/B and Ext.PW-11/C and the blood samples of both the accused were taken and deposited with MHC, Nadaun intact. On 20.7.1999, the blood samples of both the accused were sent for DNA test to Hyderabad through HC Prabhu Ram and Roshan Lal. On receipt of report of DNA test, supplementary challan prepared and was filed in the Court. Treatment chart Ext.PW-21/A and prescription slip of Basudev …15… Ext.PW-21/A was also prepared. DNA report Ext.25/C, along with identification cards, were received with the report. The first blood sample of the accused, which was sent to Hyderabad, was not found suitable for test vide Ext.PW-25/D. Receipt of blood sample at DNA Hydrabad Ext.PW-25/E was also considered. PW-25, however, has not stated that the accused participated in the last ceremony of the victim / deceased. 16. Ext.PW-11/B, one sample sealed with three seals of ‘DHH’ along with sample seal was taken regarding accused Ramesh Kumar and one sample sealed with seal ‘DHH’ along with sample regarding accused Sushil Kumar was also sent for Centre for DNA Fingerprinting and Diagnostics, CCMB Campus, Uppal Road, Hyderabad and Ext.PW-25/C dated 24.12.1999 whereby the exhibits on being examined by Dr.G.V.Rao, Scientist, Centre for DNA Fingerprinting and Diagnostics, DBT, Ministry of Science and Technology, Government of India, Hyderabad, has given a conclusion, which is extracted as below:- “DESCRIPTION OF SOURCE: Name of sample Collected / Received on Exhibit CDFD No. Underwear of accused Ramesh Kumar 08.07.1999 A 2313 Vaginal swab of deceased 08.07.1999 B 2314 Swab taken from L Mabora of deceased 08.07.1999 C 2315 …16… Swab taken from L Maoora of deceased 08.07.1999 D 2315/1 Underwear of deceased 08.07.1999 E 2316 Vaginal swab slide of the deceased 08.07.1999 F 2317 Vaginal tubes of the deceased 08.07.1999 G 2317/1 Vtfrine swab of deceased 08.07.1999 H 2318 Pubic hairs of deceased 08.07.1999 I 2319 M. Pubic 08.07.1999 J 2319/1 Blood sample of accused Ramesh Kumar Identification Card No.1 23.7.1999 K 2320 Blood sample of accused Shillu @ Sushil Kumar Identification Card No.2 23.7.1999 L 2321 White Salwar of deceased 08.07.1999 M 2322 Shirt schemeez 08.07.1999 N 2323 Underwear 08.07.1999 O 2324 White Dupatta 08.07.1999 P 2325 Ear ring and nose pin 08.07.1999 Q 2326 All the above exhibits were subjected for DNA isolation. However, source of exhibit A (underwear of accused Ramesh Kumar), source of exhibit E (underwear of deceased), source of exhibit H (Vtfrine swab of deceased), source of exhibit K (blood sample of accused Ramesh Kumar) and source of Exhibit L (blood sample of accused Shillu @ Sushil Kumar) have yielded DNA suitable for analysis. The other exhibits did not yield DNA suitable for analysis, hence they were not examined. STR analysis was used for each sample. RESULT OF EXAMINATION On comparison of the DNA fingerprints of the source of exhibit A (underwear of accused Ramesh Kumar), exhibit E (underwear of deceased), exhibit H (vtfrine swab of deceased), source of exhibit K (blood sample of accused Ramesh Kumar) and exhibit L (blood sample of accused Shillu @ Suyshil Kumar), it is concluded that the source of exhibit H (vtfrine swab of the deceased) is comparable with the DNA fingerprints of the …17… source of exhibit A (underwear of accused Ramesh Kumar) and exhibit K (blood sample of accused Ramesh Kumar). Hence the DNA of sources of exhibits A and H cannot be excluded from the same source as that of source of Exhibit K. The source of Exhibits A & H do not match with that of source of exhibit L (blood sample of accused Shillu @ Sushil Kumar). CONCLUSION The above test (STR analysis) is sufficient to conclude that: 1) the source of exhibit A (underwear of accused Ramesh Kumar), exhibit H (vtfrine swab of the deceased) and exhibit K (blood sample of accused Ramesh Kumar) are from one and the same person i.e., accused Ramesh Kumar; 2) the source of exhibit L (blood sample of accused Shillu @ Sushil Kumar) does not match with the sources of exhibits A and H (underwear of accused Ramesh Kumar and vtfrine swab of the deceased respectively).” 17. On analysis of the prosecution witnesses and materials on record, we notice that both the accused had made confessional statement before PW-9 (Jai Chand) on 8.5.1999 at 8.30 A.M. while PW-9 going to Rail from his house accused / respondents came across PW-9 near the house of Bhagwan Dass in village Baroti when both the accused made extra judicial confession which reads as “Dono doshiyon ne mana tha ki unhone Shakuntla Devi, putri Basudev, se balatkaar kiya tha aur use maar dala tha, Ab police un per shuk kar rahi hai, unhone mujhe Bachane ka agraha kiya tha” (both the accused confessed that they have raped and killed Shakuntla, daughter of Basudev. Now the police have suspected their hands and they requested me to save them.) …18… Such extra judicial confession was made by both the