IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 465-DB of 2004 DATE OF DECISION : 31.08.2010 Raju Mandal .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr. Akshay Kumar Goel, Advocate, amicus curiae, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. In the present case, three accused, namely Raju Mandal (appellant herein), Ajay @ Raju @ Mota and Rajesh @ Raju, are alleged to have murdered Guddi, aged about 13 years, with common intention, after committing gang rape upon her. Accused Ajay @ Raju @ Mota could not be apprehended and he was declared proclaimed offender. Accused Rajesh @ Raju was minor at the time of commission of the offence and he was tried by the Juvenile Justice Board and the appellant was tried by the Court of Additional Sessions Judge, Faridabad for committing the offences under Sections 376 (2) (g) and 302 read with Section 34 IPC. Vide judgment dated 5.5.2004, the appellant was convicted and vide order 7.5.2004, he was Crl. A. No. 465-DB of 2004 -2- sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of 2 ½ years, under Section 376 (2) (g) IPC; and to undergo rigorous imprisonment for life and to pay a fine of ` 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of 2 years under Section 302 read with Section 34 IPC. Both the sentences were ordered to run concurrently. Against the said judgment and order, the appellant has filed the instant appeal. 2. As per the prosecution version, on the intervening night of 6/7.6.2003 in the area of Sanjay Colony, Sector 7, Faridabad, the appellant along with his aforesaid two co-accused committed gang rape upon Guddi without her consent forcibly and thereafter, with common intention, all the three accused persons committed her murder by strangulation. They were last seen by complainant Jagdish Chand (PW.1) on 6.6.2003 at 3.00 PM in the house of his maternal grand-mother, namely Smt. Nangi Devi (PW.2). On the intervening night of 6/7.6.2003 at about 12.30 AM, on hearing the voices of cries from the aforesaid house of his maternal grand-mother, Jagdish Chand again saw all the three accused running by coming out of the house and Guddi was lying dead in the room. Immediately thereafter, at 1.15 AM, he reported the matter to the police and made statement (Ex.PA) to SI Jai Parkash Incharge Police Post Sector 11, Faridabad, to the effect that he was a resident of Sanjay Colony, Sector 7, Faridabad and was running a tea stall near the railway station. About 20 days ago, accused Crl. A. No. 465-DB of 2004 -3- Rajesh @ Raju and Ajay @ Raju @ Mota had taken the house of his grand- mother on rent. They used to come occasionally in day and night time at the house. One week ago, accused Ajay @ Raju @ Mota along with his friend Rajesh @ Raju brought one woman to the house, to whom accused Ajay @ Raju @ Mota was stating to be his wife and before rising the day, he went with her. For the last 3-4 days, the appellant was also coming with them. On 6.6.2003 at 3.00 PM, all the three accused brought one girl aged about 13- 14 years, who was being called by the name of Guddi, to whom accused Ajay @ Raju @ Mota was disclosing as his sister-in-law (sister of wife) and they went to the rented premises. In the night, after closing the shop, he (complainant) went to his house and slept. In the night, at about 12.30 AM, on hearing the voices of cries from the house of his maternal grand-mother, he woke up and went to the aforesaid house of his maternal grand-mother, upon which he saw all the three accused running by coming out of the rented premises and Guddi was lying dead in the room. He made noise, which attracted his neighbour Mahesh (PW.3). He raised suspicion that all the three accused after sexually assaulting the girl had caused her death. On the basis of the aforesaid statement, the formal FIR (Ex.PA/2) was recorded. 3. SI Jai Parkash then went to the spot on 7.6.2003 and got prepared the photographs of the dead body of the deceased. He also prepared rough site plan (Ex.PI) of the place of occurrence. On the same day i.e. on 7.6.2003, the appellant and his co-accused Rajesh @ Raju were arrested. They made disclosure statements Ex.PC and Ex.PC/1. They were Crl. A. No. 465-DB of 2004 -4- got medico legally examined. 4. On 8.6.2003, a Medical Board, of which Dr. Meenu Kapoor (PW.11) was also a member, conducted post mortem examination on the dead body of the deceased and observed as under : “Face was congested and tongue was protruding between the teeth. Cyanosis of face and lips were swelling. Abdomen was distended and foul smelling gases were coming from the body. Bruises and contusions were present all around the neck and on dissection underlying tissues were effused with clotted and floid blood and hyoid bone was fractured. Internal Organs : Pleura was congested. Right and left lungs were congested and piece was sent for chemical examination. Right chamber of the heart contained blood which was sent for chemical examination. All the internal organs were congested and pieces were sent for chemical examination. Libia majora and minora were developed, public hair were scanty, hymen was torn with old and healed irregular margins. No fresh tear or bleeding was present. Vagina admitted two fingers loosely, uterus was normal in size.” The cause of death was opined to be asphyxia due to ante-mortem strangulation. Viscera was also taken from the body of the deceased, which was sent for chemical examination. 5. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offences under Sections 376 (2) (g) and 302 read with Section 34 IPC, to which he did not plead Crl. A. No. 465-DB of 2004 -5- guilty and claimed trial. 6. In support of its case, the prosecution examined 11 witnesses. 7. PW.1 Jagdish Chand is the complainant in this case, who has reiterated his entire version, as was stated by him to the police in his initial statement (Ex.PA). 8. PW.2 Smt. Nangi Devi had given her one room on rent to accused Rajesh alias Raju and Ajay @ Raju @ Mota. She has stated that the appellant along with his co-accused had brought a girl aged about 13-14 years in the rented premises. She further stated that in the night at about 12.30 AM, complainant Jagdish heard the noise of crying of the girl and he called her, as she was sleeping. Then she saw that the girl was lying dead. 9. PW.3 Mahesh, neighbourer of the complainant, has also fully supported the case of the prosecution regarding the finding of dead body of the deceased in the rented premises and the appellant along with his other two co-accused running from the spot. 10. PW.4 Dr. A.K. Gupta medico legally examined the appellant and proved his MLR as Ex.PD. 11. PW.10 SI Jai Parkash is the Investigating Officer of the case and he has also fully supported the case of the prosecution and proved all the material documents. 12. PW.11 Dr. Meenu Kapoor was a member of the Medical Board, who conducted the post mortem examination on the dead body of the deceased. She proved the post mortem report as Ex.PK. Crl. A. No. 465-DB of 2004 -6- 13. All the remaining witnesses, namely PW5 Hari Om, Photographer, PW.6 Anoj Kumar, Draftsman, PW.7 HC Mangal Chand, PW.8 HC Attar Singh and PW.9 Constable Subhash, are the formal witnesses. 14. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence. However, he did not lead any evidence in his defence. 15. The trial court, after considering the evidence on record and while relying upon the circumstantial evidence, as well as the medical evidence, led by the prosecution, convicted and sentenced the appellant, as indicated above. Hence, this appeal. 16. We have heard the arguments of learned counsel for both the parties and have gone through the impugned judgment as well as the trial court record. 17. Learned counsel for the appellant argued that in the instant case, which is based upon the circumstantial evidence, the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. According to him, the circumstantial evidence led by the prosecution is not sufficient to arrive at a definite conclusion that the alleged offence has been committed only by the appellant, as he was neither seen in the company of the deceased nor was arrested from the place of occurrence. Learned counsel further argued that version of the prosecution with regard to the Crl. A. No. 465-DB of 2004 -7- occurrence is improbable, as it is not possible that the appellant along with his co-accused took the deceased to the rented premises owned by Smt. Nangi Devi, sexually assaulted her and then committed her murder. 18. The case of the prosecution rests only on circumstantial evidence. When a case rests only on circumstantial evidence, then the offence of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Such circumstances must be cogently and firmly established, which should be of a definite tendency unerringly pointing towards the guilt of the accused. 19. In the instant case, the complainant in his statement (Ex.PA) to the police had specifically stated that on 6.6.2003 at about 3.00 PM, the appellant and his co-accused along with a girl, aged about 13-14 years, had come to the rented premises of his maternal grand-mother Smt. Nangi Devi (PW.2) and remained there upto mid-night. He further stated that at about 12.30 AM, he heard the voices of cries from the rented premises of his maternal grand-mother and he along with his maternal grand-mother Smt. Nangi Devi (PW.2) went to the rented premises, where they saw three boys running from there and the girl was lying dead. He raised noise, which attracted his neighbour Mahesh (PW.3). The complainant reiterated this version in the court while appearing as PW.1, which has been further supported by his maternal grand-mother Smt. Nangi Devi (PW.2) and Mahesh (PW.3). So, it has been proved on record beyond reasonable doubt Crl. A. No. 465-DB of 2004 -8- that on 6.6.2003 at about 3.00 PM, the complainant had lastly seen the appellant along with his co-accused in the company of the deceased, while entering the rented premises of his maternal grand-mother Smt. Nangi Devi. It has also been proved from the statements of complainant Jagdish Chand (PW.1) and his maternal grand-mother Smt. Nangi Devi (PW.2) that on the intervening night of 6/7.6.2003 at about 12.30 AM, when they reached the place of occurrence, they saw the appellant and his co-accused running away from there and the girl was found lying dead in the room. Then within one hour, the appellant and one of his co-accused were arrested by the police from the Railway Station. 20. As per the report of the Forensic Science Laboratory, Haryana, Madhuban (Ex.PH), aluminium phosphide (Celphos) was found in the viscera and the stomach of the deceased, meaning thereby that prior to her death, the deceased was also administered celphos. The Medical Board had opined that the cause of death of the deceased in this case was asphyxia due to ante-mortem strangulation. Further, at the time of conducting the post mortem examination on the dead body of the deceased, vaginal swabs on two sticks in a vial were taken and as per the report (Ex.PH/1), human semen was detected on Pyjama as well as on the swab taken from the vagina of the deceased. PW.11 Dr. Meenu Kapoor has also stated that hymen of the deceased was torn with old and healed irregular margins. The appellant was also medico legally examined by Dr. A.K. Gupta (PW.4) who observed that smegma was present underneath, precuse around corona glandis. The Crl. A. No. 465-DB of 2004 -9- posture of the photographs (Ex.P1 to Ex.P4), prove on record by PW.5 Hari Om, Photographer, show the dead body to be in a semi naked position and having piece of cloth around her neck. Thus, from the medical evidence, it has been established that before committing murder of the deceased, she was raped by the appellant. 21. In view of the above, the chain of circumstances is complete and it was the appellant and his co-accused who with common intention committed murder of one girl, namely Guddi, aged about 13 years, by strangulation, after committing gang rape upon her. Therefore, in our opinion, in the instant case, the prosecution has led sufficient evidence, which clearly establish the guilt of the appellant beyond shadow of reasonable doubt and the learned trial court was fully justify to convict and sentence him. 22. In view of the above, the impugned judgment of conviction and the order of sentence is upheld and the appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE August 31, 2010 ( MOHINDER PAL ) ndj JUDGE