IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1315 of 2001 (Old No. 1062 of 1992) Hanif alias Salim R/o Bhaisiya Farm P.S. Baspur District Nainital. ….....Appellant. Versus State of U.P. .……….Respondent. Ms. Krishi Shukla, learned Amicus Curiae on behalf of the appellant. Shri M.A. Khan, learned Brief Holder and Shri Harish Pujari, learned A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 23.05.1992, passed by IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 307 of 1990, whereby the accused/appellant- Hanif alias Salim is convicted under Section 302 and 201 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to undergo imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for a period of seven years under Section 201 I.P.C. 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 18.08.1990, at about 8:00 a.m. Km. Jai Nando (deceased), aged about 10 years, resident of Village Bhurpuri, had gone to cut grass in the field with her mother Manto Devi (P.W. 1). She was cutting grass at some distance from her mother. After Manto Devi went to her house to have some water and when came back, she did not find her daughter but some grass cut by her was lying there where she was left working. Manto Devi called her daughter but no one responded to the call. She came back to the village and started search for her daughter along with other villagers. When for two days whereabouts of Jai Nando could not be found, report was given to the police of police station Bazpur, that Jai Nando, is missing for more than two days. An entry was made in the general diary, extract of which is Ext. A-4. Said report was given by P.W. 3 Sukarne alias Sukhu, uncle of the deceased. Police made search on said report dated 20.08.1990. Next day i.e. 21.08.1990, when the witnesses disclosed the police that they suspect Hanif alias Salim (present appellant), as he was last seen near the field where the girl was cutting grass before missing, interrogation with him was made by the police and on his pointing out, dead body of deceased was recovered from a field, in the presence of the witnesses, which included P.W. 2. Ram Singh and P.W. 9 Moti Singh. A recovery memo (Ext. A-1) was prepared by the police 3 on 21.08.1990, in the presence of the witnesses and the accused. Thereafter inquest report (Ext. A-2) was prepared along with necessary papers by the police e.g. sketch of the dead body (Ext. A-8), police form No. 13 (Ext. A-7). The dead body was sent for post mortem examination through Constable Sohan Pal Singh (P.W. 6), and one Munan Khan, who took the dead body in a sealed condition for post mortem examination to Kashipur. The autopsy was conducted by P.W. 5 Dr. A.K. Richariya on the very day i.e. 22.08.1990, at about 4:00 p.m. The Medical Officer opined that the cause of death of the deceased was asphyxia due to strangulation. He also found vaginal tear present as ante mortem injury. The police after interrogating the witnesses and collecting the evidence submitted charge sheet (Ext. A-11) against accused Hanif alias Salim along with the papers prepared by it including site plan (Ext. A-10). 4. The Magistrate, on receipt of 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. Learned Additional Sessions Judge, to whom the case was transferred for trial, after hearing the parties, framed charge of offences punishable under Sections 302, 201 and 376 read with Section 511 I.P.C. against the accused/appellant Hanif alias Salim. A separate charge was framed against accused/appellant Hanif alias Salim under Section 376 I.P.C. Accused pleaded not guilty and claimed to be tried in respect of all the 4 charges. On this, prosecution got examined P.W. 1 Manto Devi, mother of the deceased, P.W. 2 Ram Singh, the witness of recovery of dead body of deceased on pointing out of the accused Hanif, P.W. 3 Sukrane, complainant, P.W. 4 Khim Singh (declared hostile), P.W. 5 Dr. A.K. Richariya, who conducted post mortem examination on the dead body of the deceased, P.W. 6 Constable Sohan Pal Singh, who took the dead body in a sealed condition for autopsy, P.W. 7 Moti Singh, son of Mohan Singh, resident of Chanakpur, witness of recovery of dead body, P.W. 8 Head Constable Devendra Pal Mishra, who made necessary entry in the general diary (Ext. A-4) regarding the missing report given by Sukhu, P.W. 9 Moti Singh S/o Misri Singh, another witness of the recovery of dead body of the deceased on pointing out of the accused Hanif, P.W. 10 Sub-Inspector Harish Chandra Singh, who arrested accused Hanif and in whose presence dead body of the deceased was recovered on pointing out of the accused, and P.W. 11 Vishnu Chandra Gautam, Investigating Officer. All documentary and oral evidence was put to the accused under Section 313 Cr.P.C. in reply to which he only admitted that deceased was minor daughter, aged 9 years of Smt. Manto Devi. He also admitted that his field was at some distance from the field of Manto Devi, but rest of the evidence was denied by him. In defence, D.W. 1 Charan Das, was examined, who stated that the accused was arrested at about 8:00 p.m. on 21.08.1990. After hearing the parties, the trial court found accused guilty of charge punishable under 5 section 302 and 201 I.P.C. After hearing on sentence, the trial court sentenced the convict to imprisonment for life under Section 302 I.P.C. and to rigorous imprisonment for a period of seven years under Section 201 I.P.C. Aggrieved by said judgment and order dated 23.05.1992 (when conviction was pronounced) and dated 25.05.1992 (when sentence was awarded), passed by IIIrd Additional Sessions Judge, Nainital, this appeal was filed before Allahabad High Court by the convict on 08.06.1992. The appeal is received under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussion, we think it just and proper to mention here what has been found by P.W. 5 Dr. A.K. Richaria, Surgeon, who conducted post mortem examination and prepared autopsy report (Ext. A-3). According to the Medical Officer, the deceased was aged 10 years. The dead body was about 4 days old. It was in a decomposed condition. He found frothy discharge present from the nose and nostrils. He further found gaping of vagina present, maggots present around vagina and anus. He also recorded vaginal tear as ante mortem injury. On internal examination, the Medical Officer found fracture in the hyoid bone. Cause of death was opined by him as asphyxia due to strangulation. The Medical Officer in his examination, has stated that the deceased could have died on 18.08.1990, by strangulating her after committing rape. In the cross examination, he ruled out the other reasons except of 6 asphyxia by strangulation. From the above medical evidence, it is established by the prosecution on record, that minor child Jai Nando was murdered after rape or attempt to commit rape. Now the question is who has done it. 6. P.W. 1 Manto Devi, mother of the deceased who had gone to drink water to her house, leaving her daughter Jai Nando cutting grass in the filed, has stated that she saw accused Hanif was present in near by field. As such, this witness has given the natural testimony of the fact that the accused was last seen by her near the field from where Jai Nando was found missing. Accused Hanif in his statement under Section 313, in reply to question No. 2, himself admits that he was working there, which is a place at some distance from the field of Manto Devi. 7. The most important evidence brought by the prosecution on record is recovery of the dead body of Jai Nando, on pointing out of the accused. In this connection, P.W. 2 Ram Singh, has stated that he accompanied the police party with accused Hanif on whose pointing out the police recovered the dead body of Jai Nando in a sugarcane field of Buta Ram. This witness has proved the recovery memo (Ext. A-1), prepared by the police. It is mentioned in the recovery memo that accused confessed the guilt and got recovered the dead body of Jai Nando (deceased) after taking the police and witnesses to some 40 steps inside sugarcane field of Buta Ram. The statement of 7 this witness gets corroboration from the statement of P.W. 7 Moti Singh, son of Mohan Singh and P.W. 9 Moti Singh, son of Mishri Singh, who are also witnesses of the recovery of the dead body on pointing out of the accused Hanif. However, P.W. 4 Khim Singh, did not support the prosecution story on this point and was declared hostile. P.W. 10 Sub Inspector Harish Chandra Singh, who led the police party after the interrogation of the accused and got prepared recovery memo (Ext. A-1), has also corroborated the above fact, stated by the witnesses P.W. 2 Ram Singh, P.W. 9 Moti Singh, son of Mishri Singh. Having gone through the statements of these three witnesses, this fact is proved beyond all reasonable doubt against the accused that he got the dead body recovered (after committing murder and concealing the same in the sugarcane field of Buta Ram). 8. P.W. 2 Ram Singh and P.W. 9 Moti Singh, son of Mishri Singh, are residents of Village Chanakpur. They have stated that they are not related to the deceased. As such, these two witnesses are independent witnesses of recovery of the dead body on pointing out of accused Hanif. Once said fact is established on record, and that important circumstance is read with the other circumstances, i.e. accused Hanif was last seen near the place where Jai Nando was working, by P.W. 1 Manto Devi, and the medical evidence adduced by P.W. 5 Dr. A.K. Richariya, the chain of circumstance, gets complete and rules out the possibility of commission of crime by anyone else. 8 9. Having considered the submissions of learned counsel for the parties and after carefully scrutinizing the evidence on record, recorded by the trial court, we do not find any reason to interfere with the conviction and sentence, recorded by the trial court against the appellant Hanif alias Salim, in its judgment. Therefore, the appeal is liable to be dismissed. The same is dismissed. If the appellant is on bail, his bail is cancelled. Registry is directed to send back the lower court record to see that accused/appellant Hanif alias Salim serves out the sentence, awarded by the trial court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 16.06.2008 Sweta 9 10 11 12 13