i^- . . •' Coram: HON'BLE MR.T.P.SHARP^A & HON'BLE MR.R.LJHANWAR, JJ. Criminal ot 2064 DIEharan S/'o Baliram. Lodhi aged about 28- 'years R/o Gangduwari • P.S. Pathariya, District Biiaspur (C.G.) Versys Stats of Chhattjsgarh, Through • P.S. APPELLANT (In Jai!) ^' RESPQNDENT Pathariya DisSrict-Biiaspyr C.G. (CRMSNAL APPEAL UNDER SECTiON 374 (2) OF THE CODE OF CRiMiNAL PROCEDURE, 1973) Pressnt:- •Mr.Abhijjt'SarRar.counseiforthsappeSiant. . ' Mr.Sandeep Yadav; Dy.Govt.Advocate for the State. '-,• . . (Passsdon 15th September, 2010) The judgment of the Court was passed by TP.Sharma, J.:- 1. Chajtenge In this appea! is to the judgment. of CGnvictiGR &.order of sentence dated 31.7.2004 passed by the Speclal Judge appointed under Atrodtiss Act and Addltionai Sesslons Judge, BliaspMr. in Speclal Crlmlnai Case No. 104/03, whereby and whereunder learned Speclsl Judge after hoiding the appellant guilty for commission of rape with mlnor giri Anju Bas. and .cuipsbEe hornicide amountlng to her murder on ths . ground that she Is member of Scheduied Caste convicted under Sections 376 and 302 of the I.P.C. and Sectlon 3 (2) (5) of the Scheduied Castes and Schediiied Tribes (Preventlon of Atrocitles) Act, 1989 (for short ithe Act, 1989') sentenced hlm to undergp jmprisonment for life on each count. , 2. Convlction is impugned on the ground that wlthout'thsre belng any iota of evldence, the triaj Court has .convicted & sentenced the appellant gs aforementtonsd and thereby committed JISegaiity. c^ ^ 3. Case ofthe prosecutlon, in brief, is that on the fatefui day of 28.4.2003 at about 5 p.m. the present appeiiant, nelghbor of Smt.Bimia Bal (PW-1) unfortunate maternal grandmother of 10 years aged giri Anju (slnce deceased) was resldsng in nelghborhood of the appellant aSong with maternsi grandfather Anjii. On 28.4..2003, the present appelisnt came to the house of Smt.Bimla. Bai (PW-1) and cailsd Anju, he took hsr to his house, but she dld not return to her house. Smt.Bimia Bai (PW-1) went trice to the house of the appeisant fonnqulrlng her granddaughter whom the appeiiant told that Anju had gone to shop, she inquired from shopkeeper, but shopkeeper snformed that she has not come to shop. Thereafter, she caijed Kotwar anci other persons and went'to'tne'house of' the appeSiant, but after locking ,the house, the' sppeilant fied. Smt.BimIa Bal (PVV-1) Immediately wsnt to the PoSice Statlon along v»lth other persons and iodged the-F.I.R. vide Ex.P/5. She aiso iodged merg Intimatlon vlde Ex.P/6. InvestlgatiRg offlcsr left for the scene of occurrence and after summonjng the Vv'ltnesses vlds Ex.P/1, Inqusst over the dead body of the decsased after opening the lock of room clossd by the appeilant vlde Ex.P/2. Dead body of the deceased 'was sent for -.' autopsy to Communlty Health. Centre, Mungeli. Team 'of doctor conslstlng Dr.Dohare, Dr.Smt.U. Surya'w'snshi and Dr.D.R.SJnghraui conducted autopsyvide Ex.P/B and found foSiowsng circumstancss: i) Mufiar rounding the neck of ths deeeased and neck was tled with mufiar. ii) Tonguewas protrudlng. ili) BSood was comlng out from ths noss and mouth. Iv) Her age Vv'as about 10 years.: .Hsr secondapy' sexual v/ere undeveSoped. v) Biood was ciotted over thlgh. vi) Hymen Vu'as ruptured and Internal private 'part was aiso ruptured up to the anterlor wali of anus of 2" x 3/4" x ^" vli) Ciotted/flusd biood was present. Foecai matter on anus was prssent. vllO Lacerated wound of 2" x %" x %" Vv'as found on ante cateral aspect of middle portion of left arm. ^^^^. ^ i%) Llgature mark vvas found around the neck wlth knot compresslon on right side of nsck, length 30 cm., breadth 1 Yz cms. and Vscm. deep. ^ x) Muitipie abrasions Vv'ere found overthigh, parletal reglon, face andback. Cause of death was asphyxla and probabiy she has been subjected to sexuai JntercGurse. Sisdes of vaglna! smsars were taken and sealed and given to the constable. Patwari prepared spot msp vide Ex.P/3. Hsr ^ caste certificate Ex.P/7 was seszsd. Her record relating to date of blrth Ex.P/tCs was selzed. Spot map was prepared by inYestlgatlng offlcer vlde Ex.P/11. One plastic bag 'vvas seized from the house ofthe accused vide Ex.P/13. Bloodstalned, piain solS and dle blood nesrthe privste part ofthe deceased were selzed vlde Ex.P/14. SSIdes and underA'ear ofthe deceased were selzed vide Ex.P;/17. Muflar was selz^d vide Ex.P/18. Undervvearwas seized from the accused vide Ex.P/19. 4. Statements of the wltnesses Vv'ere recorded under Section 161 of the Cods of Crlmlnaj Procedure, 1973 (hereinafter referred to'as-'the Code') ,.^ and after completion of investigatlon, charge sheet was flted In the Court of Judjoial h4agtstrate First Class, Munge!!, who jn turn commstted the cass to the Cou.rt of Specisl Judge (Atrocities), Biiaspur. 5. !n order to prove the gullt of the accused/appeSSant, the prosecution has examined as many ss 16 witnssses.. Statement'of the accused/appeJiant was recorded under Section 313 of the Code where he denled the clrcumstances appearing against him and pleaded Innocence and false Impiicatson in the crime In question. 6. After provSding opportiinity of hearing to the partles, iearned Speciaj Judge and Addltjona! SessEorsS Judge; Biiaspur convscted & sentenced the sppeilant as aforsmentloned. 7. We havs heard learned. counsei for'the parties, perused the judgment impugned and record of the tria!. Court. , , 8. Learned counssi for the appeilsnt vehsmently srgued that In the present case, the convjction is on conjectures and surmises without any tegaS and ciinching evldence. Evldence adduced on behaif of the •''T'"^ '^ -^ v 4 ^; €. .& prosecutloR is sufficlent for casting doubt that the present sppeiSant may have committed the offence but has not deflnlte conciusion that oniy the appeliant has committed ths aforesaid offencs. The present appeiiant has been convjctsd forthe offence punishable under Sections 376 and 302 of the I.P.C. and Section 3 (2) (5) of the Act,1989 in order to prove serious and helnous ot'fence, decree ofstandsrd of proof is hlghsr, but in the present case, ths prosecution has not adduced evidence of steriing quality. On the other hand, learned State counsei supported the judgment impugned and argued that.this Is a case in w'nich the present appsl!ant has committed rs.pe wlth 10 ysars aged mlnor glrl Anju and commltted her murder vvho v^as his nelghbor. Evldence adduced on behatf of the prosecution is sufflcient for drswing inference'that on!y the appeSiant has commltted the aforesa.id offence and except the sppeilant none has committed the offence. 10.Sn order to appreclate the arguments advanced on behsif of the partles, we have examined the evidsnce adducsd on behaif of the prosecutlon. 11.1n the present ease, homicidal death as a result of fstal injuries and commlssEon of sexua! Intercourse Vv'ith 10 years aged mlnor giri has not been substantiaiiy disputed cn behaif ofthe appesSant, on the other hand, also established by the evldence of Dr.D.R.SJnghroul (FW-S) who has ctearly deposed that cause of death was asphyxia and ISgature marR was found sround the neck. Her hymen and pnvate part 'A'ere found ruptured. These evidences are sufflcisnt for dravvlng inferencs that she has been stsbjected to sexual intercourse and thereafter her hQmicldal death has been caused. .12.As regards the compiidty of the appeiSant in the crlme In que3tlon,the conviction ss based on the foiiowing circunistantlal evjdence: I)- The prssent appeliant has caiSed deceased Anju just before one hour of the Incldent. 11) Anju went with the appeilant to hls house. ili) Matsma! grandmother of the deceased repeatedly vlslted the house of the appeEiant for msklng snqulry sbout her '<-. granddaughter Anju whom the appeiiant repjled that Anju had gone to shop. iv) Smt.BImEa Bai (PW-1) has aiso made an inqulpy from shopkeeper about ths prosecutrix '-»vhom shopkeeper told that Anju had not come to his shop. v) Smt.Bimia Bai (PVV-1) Immedjately told the Inddent to Patei and Sarpanch and went to the house of ths appejiant, then the appeliant locked hls room and fled from the house. '\,/ vi) When lock of the room of the appeiiant was opened by KGtA'ar, then dead body of deceased Anju Vv'as found in iRjured coRdltlGn In the room of the appeijant. vil) The appeliant has not offered any expianatioR as to how Anju dled, who has caused injuries to Anju, how laceratlon and rapture of hymen and prlvate part of Anju occurrsd, how dead body of Anju in injured condjticn was found sn his room and how he has locked the room and fted from the house. 13.!n order to prove the. aforesaid clrcumstances, the. prosecution has examjned Smt.Bimla Bai (PW-1), maternsl grandmother of unfortunate prosecutrix Anju, who has deposed jn her evidence that just before one hour ot'the ineident, the appeiiant c§meto his house and caEled Anju, he took her to his house for provlding semi (sabji). Thereafter she went to the house of the appeiiant for caillng Anju. House oftne appellant is near to the house of Smt.Blmia Bai (PW-1). Anju was not present. When she ssked sbout Anju, then the appeilant told her that.she has gone to shop. She trice vlsited to the 'house of the appellsnt and thereafter,went to shopkeeper and asked about Anuu, then shopkeeper told her that Anju has not come to his shop. Thereafter she calted Patei, Sarpanch and other persons and told the incidsnt and also toid that the appellant has offered faise explanatlon, then they went to tne house of the appejlant, but the appeilant locked the room' and fled from the house. Kotwar opened the room, then they saw dead body of her granddaughter covered wlth clothes. She has aiso ststed that she vvent to the Poiice Statlon snd loaged the F.1.R. in her detali cross-examsnstloR she has admittsd that the appeJiant is her neighbor. In para 21 , she has admltted that when the apps!!ant came and caSSed Anju, then Anju followed hlm. !n J Y^.. her detailed cross-examsnation, the appeliant has not been abie to eiidt anything in her cross-examiRatson to dlscredjt her testimony. Udrika Bal (PW-2), Hasan Mohammad (PW-3) and Ashok Kumar (PW-10) have corroborated ths svidence of Smt.Bimia Bai (PW-1). Rldhj Ram (PW-11), Ramesh Kumar (PW-12), Dongraha (PW-13) and Janak Ram have also partially corroborated the evidence of Smt.BJmja Bal (PW-1). 14.Evldence ofths aforesald v^ltnesses are suffldent fordrawjng inference that Anju was calied by the appellant, Anju v»'ent to the house of the appeilant, she did not come back to her house, her maternai grandmother Smt.Blmia Bsl (PVV-1) trice vlsited to the house of the appeSSant andasked about Anju, then the eppeilant has given false explanstion that Anju has gQne to shop, but shopkeeper has not supported-the csse ofthe appeiSant and has told that Anju has not come to his shop, Thereefter, she went to the house of ths appeliant aiong wlth Patei, Sarpanch and other persons, then the appeliant fSed from the house after locklng ths room. Room was opened by Kotvvar where Injured desd body of 10 years aged gsr! Anju was found. On examinatlon, doctor has oplned that dsath was homicidal in nature. her hymen and A vaglna were found ruptured which were suggestive the fact that she hss been subjected to sexual intercourse. 15.it the aforesaid circumstances are conslclered together, then oniy evldence would be possibie that the present appeilant js the person who has committed the offence of rape and murder of Anju. 16.As per the settled !aw In order to convlct an accused based on the circumstantial evldence, the Apex Court In the case of Dhananjoy ChatSerjee v. State of Vtf.B. has heid that: "in a case based on circumstantlal evldence, the circumstances from which the condusion of guiit is to be drawn have not only to be fuliy established but ateo that ali the circumstances so estab!lshedshou!d be of a conclusive nature snd consistent oniy wsth the hypothesls of the guiit cf the accused. Those circumstances should not be capable of bslng explalned by any othsr hypothesis except the gul'it of She accused and the chain of the evidence must be so compiete as not to ieave any reasonabie ground for the beiief consistent with the jnnocence of the accused. !t needs !{1994)2SCC220 ^""^ •- ^ S ^SSQ ^^^a^^^- €.- ;. t... no remjndsr that Segaiiy establlshed clrcumstances and not mereiy indignation of the court can form the basis of conviction and the more serious the crime, the greater shouid be the care taken to scrutlnize the evidence iest suspsclon takes the place of probf." 17.!n case of convictlon based on clrcumstantiai evidence, as heid by the Apex Court In the matter of C. Clianga Reddy v. State of A.P.2, the prosecution Is requlred to adduce evldence and such svldence must satlsfylng the folio'w'lng tests: - I. the clrcumstances from whlch an inference of guilt is sought to be dravv'n, must be cogently snd firmly established; il. those circumstances shouid of a definite tendency unerringly pointing towardsthe guiit of thesccused; iii. the clrcumstances taken cumuistively should form a chain so complete that there Is no escape from the concluslon thatwlthln ali human probabiiltythe crime v/as committed by the accused and none elss; and Iv. the circumstantial evidence in order to sustaln coRvlctlon ^ must be compiste and incapabie of expSanation of any other hypothesis than that oftne gulit ofthe aceused and such evidencs should not only be conssstent wlth the guilt of the accused but should be Inconststent wlth hls jnnocence. 18.in the present case, If we have examined the clrcumstances proved by the prosecution cn the basis of aforesald touchstone, then oniy hypothesis wouid be posslbSe that the present appeSiant has commltted the offence and except the appsliant nobody has commltted rape and murder of Anju and that compiete exciude the possibjiity of Innocency of the appeilant, but evldence adduced on behatf of the prosecution is not sufflcjent for proving the fact thst the appellant has commltted the offsnce on the ground of caste of deceased Anju, therefore, convlctlon & sentence of the appelSant under Section 3 (2) (5) of the Act, 1989 are not sustainabie underthe iaw. ; AiR 1996 SC 3390 : (19^) 10 SCC 193 ^ -^^ ""<^.,, ,^ B/- <;.. 19-For the foregoing reasons, the appeat is partly aiiov»ed. Conviction & sentence ofthe appeiiant under Sectlons 376 and 302 ofthe I.P.C. are hereby malntalned. However, convictlon & sentence of the appejiant under Sectlon 3 (2) (5) of the Act, 1989 are hersby set aslde. Sd/- T.P.Sharma Judge Sd/- R.L. Jhanwar Judge l': 'L-