Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 885 of 2001 Amrit Bhattacharya, S/o Anil Bhattacharya, R/o Transit Camp Rudrapur, District Udham Singh Nagar ………..Appellant. Versus State ……..Opposite Party. Mr. Suresh Chandra Mishra, Amicus Curiae and Ms. Geeta Parihar, Advocate, for the appellant. Mr. Amit Bhatt, Additional Government Advocate, for the State-Opposite Party. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral – Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 22.09.1999, passed by learned Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 31 of 1998, whereby accused / appellant Amrit Bhattacharya is convicted under Sections 376 and 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The appellant is sentenced by the trial court to rigorous imprisonment for a period of ten years and also directed to pay fine of Rs.8,000/- under Section 376 2 I.P.C., and imprisonment for life under Section 302 I.P.C.. (2) Heard learned Amicus Curiae for appellant and Additional Government Advocate for State and perused the lower court record. (3) Prosecution story in brief is that on 15.06.1998 complainant Manohar Dev Nath (P.W.2), who was a rickshaw puller, had gone for work to earn his wages, and his wife Geeta Rani (P.W.1) had also gone to work in the house of Tilak Raj, where he used to work as a maid servant. They left their minor daughter Seema (deceased) aged 8-9 years all alone in the house. The complainant’s two sons Sapan and Madan were also out in connection of their work. At about 11.30 a.m. when complainant Manohar Dev Nath returned to his house to have his meals, he found his daughter Seema lying in unconscious condition and she was bleeding from her private parts. He immediately took her to the Hospital where she was declared dead. Suspecting that Seema was murdered after committing rape on her complainant Manohar Dev Nath lodged First Information Report (Ext.A-1) with Police Station Rudrapur on the very day i.e. 15.06.1998 at about 12.45 noon. The complainant did not name anyone in the First Information Report. A Crime No. 540 of 1998 was registered on the basis of the First Information Report at Police Station Rudrapur, relating to offences punishable under Sections 302 and 376 I.P.C.. P.W.10 Sub Inspector Harbansh Singh started the 3 investigation of the case. He went to the Government Hospital, Rudrapur, took the dead body of Seema in his possession and prepared the Inquest Report (Ext.A- 12). He also prepared Police Form No. 13 (Ext.A-13), Sketch of the Dead Body (Ext.A-14), Letter to Chief Medical Officer (Ext.A-15) and got sent the dead body in a sealed condition for postmortem examination. P.W.4 Dr. S.C. Koranga, conducted the post mortem examination on the very day i.e. 15.06.1998 at about 11.00 p.m. (23.00 hours) on the dead body of the deceased and recorded three ante mortem injuries which included lacerated wound in the private parts of the deceased and opined that the deceased had died due to shock on account of ante mortem injuries. The Medical Officer prepared Autopsy Report (Ext.A-3). Meanwhile, the Investigating Officer inspected the spot and took simple soil and blood stained soil from the house of the complainant and prepared Memorandum Ext.A-2 and Site Plan (Ext.A-17). He interrogated some of the witnesses. On 17.06.1998, the investigation was taken over by Sri Ram Lakhan Singh (P.W.6), In-charge Inspector of Police Station, who further interrogated the witnesses Har Bhajan Singh (P.W.3), Sardul Singh, Nitya Nand Shah (P.W.7) and others. He got arrested the accused / appellant Amrit Bhattacharya with the help of Sub Inspector Ravi Tyagi (P.W.5). The Investigating Officer took undergarments and pants of accused in his possession and got sent the same for chemical examination along with undergarments of the deceased (Seema). Chemical Examiner reported that semen was found in the undergarments of the 4 deceased and that of the accused. The undergarments of the deceased also contained human blood of group B. The pants of the accused also found containing human blood but could not be classified. After completing investigation, the Investigating Officer submitted charge sheet (Ext.A-6) against accused Amrit Bhattacharya for his trial in respect of offences punishable under Sections 376 and 302 I.P.C.. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. The learned Sessions Judge, after hearing the parties, on 09.11.1998, framed charge of offences punishable under Sections 376 and 302 I.P.C. to which the accused Amrit Bhattacharya pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Geeta Rani, mother of the deceased, P.W.2 Manohar Dev Nath, father of the deceased, P.W.3 Har Bhajan Singh, a neighbour of the deceased, P.W.4 Dr. S.C. Koranga, who conducted post mortem examination on the dead body of the deceased, P.W.5 Senior Sub Inspector Ravi Tyagi, who arrested the accused Amrit Bhattacharya, P.W.6 Ram Lakhan Singh, to whom investigation was transferred and who completed the investigation, P.W.7 Nitya Nand Shah, before whom accused / appellant said to have made extra judicial confession, P.W.8 Manish Chhavra, who told that he had seen accused coming out of house of complainant on the day of incident at about 11.00 5 a.m., P.W.9 Charanjeet, who is witness of arrest of accused, and P.W.10 Sub Inspector Harbansh Singh, who started the investigation. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. to which he alleged the same to be false. He alleged that Nitya Nand Shah (P.W.7) was his (accused’s) neighbour, who used to work for Tilak Raj Behad, Member of Legislative Assembly and as such he has been falsely implicated in the crime. It is further stated by him that he is father of five children. Accused at the end of his examination under Section 313 Cr.P.C. submitted that he does not know the complainant or his family. However, no evidence in defence was adduced. After hearing the parties, the trial court found that the prosecution has been successful in proving the charge of offences punishable under Sections 376 and 302 I.P.C. against accused / appellant Amrit Bhattacharya. After hearing on sentence, the trial court sentenced the convict to imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for ten years and also directed to pay fine of Rs.8,000/- under Section 376 I.P.C.. Aggrieved by said judgment and order dated 22.09.1999, passed by learned Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 31 of 1998, this appeal was filed before Allahabad High Court along with delay condonation application on 19th January 2000. The appeal along with delay condonation application was received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. On 13.04.2005, the delay 6 condonation application was allowed by this Court and appeal was admitted. Sri Dinesh Chauhan, the counsel for the appellant stated on 05.05.2005 that he has no instructions in the appeal, as such Sri Suresh Chandra Mishra, Advocate, was appointed Amicus Curiae to assist the Court on behalf of the appellant, and paper book of the record was made available to him. (5) This is a case of circumstantial evidence and this Court has to see whether the prosecution has established the chain of circumstances on record to prove that the accused Amrit Bhattacharya has committed murder of the deceased (Seema) after committing rape on her. (6) Before further discussions, we think it just and proper to mention here the ante mortem injuries recorded by P.W.4 Dr. S.C. Koranga, who conducted post mortem examination on the dead body of Seema, aged 8-9 years on 15.06.1998 at about 11.00 p.m. (23.00 hours) and prepared Autopsy Report (Ext.A-3). The ante mortem injuries mentioned in the post mortem examination report are being reproduced below:- (i) Contusion in an area of 5cm x 3cm on right side of neck just lateral to thyroid cartilege. Brownish in colour (size from 3 x 2 cm to 2 x 2 cm). 7 (ii) Contusion 3cm x 2cm present over middle of right clevicle, colour brownish. (iii) Lacerated wound involving the vagina (Hymen + lobia, and clitoris) size 6.5cm x 2.5cm x 4cm. Whole vagina was stained with clotted blood and fluid. The Medical Officer opined that the deceased had died due to shock on account of ante mortem injuries. (7) P.W.1 Geeta Rani, mother of the deceased (Seema) has stated that on the day of incident her husband, a rickshaw puller, had gone for work. Her sons also had gone for their work in a shop. She herself had gone to house of Tilak Raj, where she used to work. It is further stated by her that her minor daughter, aged 8- 9 years remained at home all alone. At about noon, when she came back from her work she saw a crowd near her house and the people told her that her daughter (deceased) was unconscious and her husband (Manohar Dev Nath) had taken her (deceased) to Hospital. According to this witness she then rushed to the Hospital and saw that her daughter was lying dead. P.W.1 Geeta Rani has further stated that her daughter was subjected to rape and she was murdered. She has further stated that there was also mark of injury on the neck of the deceased. P.W.1 Geeta Rani has further stated that later her neighbours Sardul Singh and Har 8 Bhajan (P.W.3) told her that they had seen accused Amrit Bhattacharya going inside her house and coming out of it after 10-15 minutes. (8) P.W.2 Manohar Dev Nath, complainant and father of the deceased, has also stated that on the day of incident his wife had gone to the house of Tilak Raj where she used to work and he had gone with his Rickshaw. At his house his daughter Seema aged 8-9 years was all alone. P.W.2 Manohar Dev Nath has further stated that at about 11.30 a.m. when he came back to his house to have his meals, he found his daughter lying unconscious and she was bleeding from her private parts. The witness has further stated that he took his daughter to the Hospital where he was told that she (deceased) was dead. Thereafter, according to this witness he got lodged First Information Report (Ext.A-1) with the Police. P.W.2 Manohar Dev Nath has further stated that accused Amrit Bhattacharya was acquainted to him and he used to come to his house. He has further stated that he used to treat him as brother-in-law (MUHBOLA BEHNOI). This witness has also stated that after the incident he was told by Har Bhajan (P.W.3) and Sardul Singh, both neighbours, that they saw Amrit Bhattacharya on that day coming to his (complainant’s) house and going out of it in a nervous condition after some 10-15 minutes (before complainant came back to his house at 11.30 a.m. and saw her daughter lying unconscious). 9 (9) P.W.3 Har Bhajan Singh has stated on oath that on the day of incident he saw accused / appellant Amrit Bhattacharya going in the house of the complainant and coming out of said house. This witness has further stated that complainant came back to his house and took his daughter to Hospital. He too saw that she (deceased) was being taken to Hospital, bleeding from her private parts. This witness has also stated that in his presence, the Police took the blood stained soil and simple soil and prepared memorandum (Ext.A-2). (10) P.W.8 Manish Chhavra has also corroborated the statement of P.W.3 Har Bhajan Singh that on the day of incident the accused Amrit Bhattacharya went inside the house of the complainant and came out at about 11 a.m. in a nervous condition. The witness has further stated that later on he came to know that Seema was raped and murdered. (11) P.W.7 Nitya Nand Shah, who is resident of Transit Camp to which place accused Amrit Bhattacharya belongs, stated on oath that after the incident, when Police was in search of Amrit Bhattacharya, he came to him and asked him to save him. Though the said statement as such does not disclose any extra judicial confession, but it certainly indicates the conduct of the accused subsequent to the incident. (12) On behalf of accused / appellant Amrit Bhattacharya, learned Amicus Curiae argued that 10 P.W.3 Har Bhajan Singh was throughout with the complainant after he came back to his house on 15.06.1998 and as such had he seen the accused coming or going out of the house of the complainant he would have disclosed it before the First Information Report was lodged with the Police. We do not find much force in the argument for the reason that merely one circumstance that the accused was seen by Har Bhajan Singh by itself was no sufficient for the witness to conclude that the person who was seen coming out of the house had committed rape or murder, particularly when P.W.3 Har Bhajan Singh is a neighbour and he was not aware of the fact that whether the girl (victim) was all alone inside the house or not. It is only after several persons of the neighbourhood were interrogated that Har Bhajan Singh (P.W.3), Sardul Singh and Manish Chhavra (P.W.8) all had seen only Amrit Bhattacharya coming and going out of the house of the complainant about half an hour before complainant reached in his house. None of the witnesses, namely, P.W.2 complainant Manohar Dev Nath, P.W.3 Har Bhajan Singh and P.W.8 Manish Chhavra had any enmity with the accused, as such there is no reason why the complainant and all his neighbours speak against the accused Amrit Bhattacharya. (13) Learned Amicus Curiae next contended that no gynecologist was got examined as to whether actually rape was committed on the victim before she was murdered or not as such the trial court has erred in its 11 finding in concluding that the girl (victim) was raped and murdered. We are unable to accept the contention of learned Amicus Curiae appearing for the appellant for the reason that it is not a case where the victim was alive after rape as such there was no reason for the Investigating Officer to have opinion from a gynecologist as the only natural examination was the post mortem examination which was got done and it has come on the record that there was lacerated wound on the private parts of the victim. (14) Having gone through the entire evidence on record and after discussing the evidence as above we concur with the finding of the trial court that prosecution has successfully established chain of circumstances to prove that accused Amrit Bhattacharya has committed rape on a minor girl Seema, aged 8-9 years and while doing so committed her murder. (15) For the reasons as discussed above, we do not find force in this appeal, which is liable to be dismissed. The same is dismissed. Accused / appellant is in jail. The Registry is directed to send the copy of this judgment to the Superintendent of Jail concerned. Lower Court Record be sent back to the trial court. (B.S. Verma, J.) (Prafulla C. Pant, J.) 17.10.2008 NS 12