'^^E^^'^FT^.'^^.;:^ o HIGH COURT OF CHHATTISGARH AT BIL Division Bench Coram : Hon'ble Shri Dilip Raosaheb Deshmukh and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. ^. Cnminal Appeal No.U17-pf 2007 Ramnaresh and others versus State of Chhattisgarh Criminal Reference No.3 of 2007 State of Chhattisgarh versus Ramnaresh and others JUDGMENT FOR CONSIDERATION Sdf- Dilip Raosaheb Deshmukh Judge Hon'ble Shri Rajeshwar Lal Jhanwy Sd/- R.L.JHANWAR Judge Post for ^f.- 7-2009 Sd/- ^.-7-2009 (^.^ ^- HIGH COURT OF CHHATTISGARH AT BILASPt Division Bench lA- Coram : Hon'ble Shri Dilip Raosaheb Deshmukh and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. Appellants (InJail) Respondent Criminal AppealNo.1117 of 2007 1. Ramnaresh, aged 22 years, S/o Chhotelal Kewat, 2. Vishwanath Singh, aged 31 years, S/o Dhyan Singh Pav, 3. Amar Singh, aged 21 years, S/o Ramswaroop @ Ramsingh, 4. Ranjeet Kewat, aged 29 years, S/o Ganga Ram Kewat, All R/o Village Gullidand, P.S. Marwahi, Distt. Bilaspur (C.G.) versus State of Chhattisgarh, through Police Station Marwahi, District Bilaspur (C.G.) Criminal Appeal under Section 374(2) of the Code of Criminal Procedure Present: Smt. Fouzia Mirza and Shri R.K.Pali, counsel for the appellants/accused. Shri Bhaskar Payashi, Panel Lawyer for the State/respondent. ^ Appellant (Prosecution) Respondents (accused) Criminal Reference No.3 of 2007 State of Chhattisgarh, through Police Station Marwahi, District Bilaspur(C.G.) versus 1. Ramnaresh, aged 22 years, S/o Chhotelal Kewat, 2. Vishwanath Singh, aged 31 years, S/o Dhyan Singh Pav, 3. Amar Singh, aged 21 years, S/o Ramswaroop @ Ramsingh, 4. Ranjeet Kewat, aged 29 years, S/o » Ganga Ram Kewat, All R/o Village Gullidand, P.S. Marwahi, Distt. Bilaspur (C.G.) w Criminal Reference under Section 366(1) ofthe Code ofCriminal Procedure Present: Shri Bhaskar Payashi, Panel Lawyer for the State/appellant. Dr. Rajesh Pandey, counsel for respondents No.1 and 3/accused. Shri Arun Kochar, counsel for respondents No.2 and 4/accused. JUDGMENT (Delivered on this Wdav of July, 2009) The following Judgment of the Court was delivered by Dilip Raosaheb Deshmukh, J.: This judgment shall govern Criminal Appeal No. 1117/2007 preferred by the appellants/accused Ramnaresh, Vishwanath Singh, Amar Singh and Ranjeet Kewat and Criminal Reference No.3/2007 under Section 366(1) of the Code of Criminal Procedure (henceforth 'the Code') by Shri Ram Kumar Tiwari, the Additional Sessions Judge, Pendra Road, District Bilaspur in Sessions Trial No.403/2006. (2) The Additional Sessions Judge, Pendra Road, Distrist Bilaspur has, vide judgment dated 20-11-2007 delivered in Sessions Trial No.403/2006, convicted the appellants/accused Ramnaresh, Vishwanath Singh, Amar Singh and Ranjeet Kewat under Sections 449, 376(2)(g) and 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 10 years and fine of Rs.200/- each and in default additional rigorous imprisonment for 1 month under Section 449 ofthe Indian Penal Code, to imprisonment for life and fine of Rs.200/- each and in default additional rigorous imprisonment for 1 month under Section 376(2)(g) of the Indian Penal Code. Under Section 302 read with Section 34 of the Indian Penal Code, the appellants/accused were sentenced to death. (3) Admittedly, appellant Ranjeet is the brother of Indrajeet P.W.-1 and lives next door to his house. Sugaribai P.W.-12 is the mother of the deceased Rajkumari. Dhaniram P.W.-6 is also known as Rottam. (4) Prosecution case is that on the night of 9-8-2006, the date of Rakshabandhan, Indrajeet P.W.-1 had gone to Rajnagar to meet his father. His wife Rajkumari, the deceased was alone in the house with her b<vo minor children aged about 7 months and 3 years respectively. Sunita P.W.-2, Anita P.W.-3 and Belabai P.W.-5 had left the house of Rajkumari around 7 P.M. after watching television with her for sometime. Servant Dhaniram P.W.-6, aged 16 years, was present at the house and continued watching television after Rajkumari slept at about 9:30 P.M. Sunita P.W.-2, Anita P.W.-3, Belabai F.W.-5 and Dhaniram P.W.-6 had seen the appellants/accused with one Kamlesh P.W.-10 at the adjacent house of appellant Ranjeet. At about 10:30 P.M.7 all the appellants/accused consumed liquor at the house of appellant Ranjeet. At about 12 in the night, the appellants/accused arrived at the house of Rajkumari and told Dhaniram P.W.-6 that they would ravish Rajkumari and would kill him if he told this to anyone. Appellants Ramnaresh and Amar Singh sat with Dhaniram P.W.-6. Appellants Ranjeet and Vishwanath committed rape on Rajkumari after bringing her down from the cot. Thereafter, appellants Ranjeet and Vishwanath took Dhaniram P.W.-6 to the courtyard and appellants Ramharesh and Amar Singh entered the room of Rajkumari. After sometime, appellants Ramnaresh and Amar Singh emerged from the room and asked Dhaniram P.W.-6 to go inside. Dhaniram P.W.-6 denied, whereupon appellants Ranjeet and Vishwanath threatened to kill him if he did not go inside the room. Dhaniram P.W.-6 entered the room and saw that Rajkumari could not speak and was breathing very heavily. Blood was coming out ofher mouth and nose. On seeing this, -^ Dhaniram P.W.-6 left the room. The appellants/accused threatened Dhaniram P.W.-6 that he would be killed if he did not keep quiet. Appellants Ranjeet and Vishwanath asked Dhaniram P.W.-6 to inform Sugaribai P.W.-12, mother of Rajkumari that Rajkumari was not awaking fromsleep and leftfortheir homes after threatening to kill him. Dhaniram P.W.-6 went and informed Sugaribai P.W.-12 at about 3 A.M. that Rajkumari was fast asleep and would not awake. Sugaribai P.W.- 12 came to the house of Rajkumari and saw her lying dead with injury on the throat and private parts and blood oozing from her mouth and nostrils. *>! (5) On receiving information, Indrajeet P.W.-1 came to Village Gullidand and saw the dead body of Rajkumari. Merg Intimation Ex.P-1 was lodged by Indrajeet P.W.-1 in P.S. Marwahi at 10:50 A.M. on 10-8- 2006. Head Constable Jagmohan Panna P.W.-14 reached the place of occurrence and noticed that.dead body of Rajkumari was lying in a supine position on a black blanket. He prepared Naksha Panchayatnama Ex.P-3 on 10-8-2006 at 4 P.M. As mentioned therein, a small white piece of saree having blood like stains and red coloured pieces of broken bangles of right hand were seen lying near the dead body. On 10-8-2006, the piece of saree (Article A) approximately 1% feet in length and 3 feet in width having blood like stains at 6-7 places and 7 pieces of red bangles were seized by Head Constable Jagmohan Panna P.W.-14 from the place of occurrence. (6) Post mortem on the dead body of the deceased Rajkumari was conducted by a team of doctors comprising of Dr. Sheela Saha P.W.-7 and Dr. Mahesh Singh on 10-8-2006 at 2:10 P.M (Ex.P-12). The body was cold. Rigor Mortis was present in lower limbs and absent in both upper limbs. Eyes and mouth were semi-open. Blood mixed froth had oozed from the nostril and mouth. There were two abrasions ofthe size 0.5"x0.5" with scratch mark by nails below the angle of right mandible just in front of the sterno cleado mastoid muscle with anotlier scratch mark 1" in length above it. There was an abrasion on the left side of neck below the angle of mandible to mastoid process with scratch mark as shown in the diagram. There was an abrasion in the thigh of the size of 1"x0.5" with contusion 1"x1" present on both medial aspects of thigh. On internal examination, petechial haemorrhage was present in both lungs, righf side of heart was filled with blood while the left ventricle was empty. There were lacerations with abrasions 3 to 4 in number over perineum with blood mixed discharge. Uterus was ante- verted normal size. Two vaginal glass slides (Articles G1 and G2) were prepared, sealed and handed over to the Police Constable for chemical anal^sis. One orange saree and one green petticoat (Article F) with blood like and white stains, which were encircled and sealed, were also handed over to Police Constable No.310 Suresh Lakda, P.S. Marwahi for chemical analysis. It was opined that death was as a result of asphyxia due to strangulation (throttling). There was evidence of rape. Al] injuries were ante mortem in nature. Nature of death was homicidal. Time elapsed since death was 12 to 14 hours. (7) ^ Statement of Indrajeet P.W.-1 under Section 161 of the Code was recorded on 12-8-2006 in which he stated that his servant Dhaniram P.W.-6 had shown complete ignorance aboutcause ofdeath of Rajkumari. A doubt regarding involvement in the offence of one Bhupendra whom Rajkumari had married about 3 years prior to marrying Indrajeet P.W.-1, was cast. Statement of Dhaniram P.W.-6 under Section 161 of the Code was recorded on 12-8-2006 in which he narrated for the first time regarding the commissionof rape by the appellants/accused on Rajkumari. Statement of Dhaniram P.W.-6 ^7 under Section 164 of the Code was recorded by the Judicial Magistrate First Class, Bilaspur on 19-9-2006. The appellants/accused were arrested on 13-8-2006 between 3:30 and 4:10 P.M. On 13-8-2006 at 4:30 P.M., one full sleeves shirt (Article B) having blood like stains was removed from the body of appellant Ranjeet and seized vide Ex.P-7. On the same day at 4:50 P.M. one blue old nylon underwear (Article C) having blood like stains was removed from the body of appellant Vishwanath Singh and seized vide Ex.P-8. On the same day at 5:10 P.M.one old green nylon underwear (Article D) having blood like stains was removed from the body of appellant Amar Singh and seized vide Ex.P-9. On the same day at 5:15 P.M., one maroon nylon underwear (Article E) having blood like stains was removed from the body of appellant Ramnaresh and seized vide Ex.P-10. Slides Articles H1 and H2 of appellant Ranjeet, 11 and 12 of appellant Vishwanath Singh, J1 and J2 of appellant Amar Singh and K1 and K2 of appellant Ramnaresh were seized vide Ex.P-13 at 5:20 P.M. on 19-8-2006 from Police Constable Brijnandan Singh P.W.-13. Report of the medical examination of the appellants/accused was not produced in the documents under Section 173 of the Code. The doctor who examined the appellants/accused was also not cited as a witness. Seizure memo Ex.P-13 did not show that the slides were seminal slides. By memo Ex.P-21 dated 25-10-2006 of the Senior Superintendent of Police, Bilaspur the abovementioned articles were sent for chemical analysis to Forensic Science Laboratory, Raipur through Police Constable No.310 Suresh Lakda and were received in the Forensic Science Laboratory, Raipur on 6-11-2006 vide acknowledgment Ex. P-22. After completion of investigation, challan was filed against the appellants on 6-11-2006 before the Judicial Magistrate First Class, Pendra Road, who committed it for trial to the Court of Session on 15-12-2006. The learned -'•^*^,,. ,/^-^ ^ /^1 /^; iY "^ 7 Additional Sessions Judge, Pendra Road framed charfles under Sections 449, 376(2)(g) and 302 read with Section 34 of the Indian Penal Code against the appellants, who abjured the guilt. (8) ' During trial, report of the Forensic Science Laboratory, Raipur Ex.P-23 dated 31-7-2007 was produced and admitted in evidence under Section 293 of the Code bywhich presence of blood on Articles A, B, C, D, E, F1, F2 and presence of seminal stains and human spermatozoa on Articles C, D, E, F1, F2, G1, H1, 11, J1 and K1 was confirmed. Seminal stains and human spermatozoa was not found on Articles A and B. The seminal stains on Articles C, D, E, F1 and F2 were not sufficient for serological examination. The Slides Articles G2, H2, 12, J2 and K2 were preserved if D.N.A. Test was felt necessary. The prosecution examined as many as 16 witnesses. The appellants/accused examined Samelal D.W.-1 and Kamla D.W.-2 wife of Ranjeet to establish that the appellants/accused had slept in their respective houses between 9 to 10 P.M. on 9-8-2006. (9) Relying upon the sole testimony of Dhaniram P.W.-6, which was duly corroborated by medical evidence of Dr. Sheela Saha P.W.-7 and Sugaribai P.W.-12, the learned Additional Sessions Judge, Pendra Road convicted and sentenced the appellants/accused as shown in paragraph 2 supra. (10) Smt. Fouzia Mirza, learned counsel appearing for the appellants/accused in Criminal Appeal No.1117/2007 argubd that the testimony of Dhaniram P.W.-6 was not reliable because he did not disclose the names ofthe appellants/accused to anyone or even to the police till 12-8-2006. Laying stress on the testimony of Indrajeet P.W.-1 in paragraph 10 which revealed that on arrival at the scene of occurrence he had noticed that shining material (Jalposh) of the bangles worn by his wife Rajkumari was present on the right side of the body of Dhaniram P.W.-6 who told him that he had collected the broken bangles in a container which he did not hand over to the police, it was argued that the possibility that Dhaniram P.W.-6, who was undoubtedly present at the scene of occurrence, had committed rape and murder of Rajkumari and had falsely implicated the appellants could not be ruled out. According to the learned counsel for the appellants/accused, this possibility was further strengthened by the admission of Dhaniram P.W.-6 in paragraph 11 that the police had detained him at the police station for 8 days and in the lock-up for 4 days and had also beaten him. Appellant Ranjeet was not only married but was also the brother- in-law of the deceased. The fact that appellant Vishwanath was present at the time of taking the body of Rajkumari for post mortem examination and according to Sugaribai P.W.-12 on reaching the place of occurrence, appellant Ranjeet was seen carrying the minor daughter of Rajkumari in his arms and had also gone to call Rewa Lohar for Jhaadphoonkbe\\es the prosecution case that they were responsible for rape and murder of 'Rajkumari. The testimony of Kamla D.W.-2, the wife of appellant Ranjeet that on the date of occurrence appellant Ranjeet had slept at 9 P.M. in the house completely ruled out the participation of appellant Ranjeet in the offence. It was also argued that the testimony of Dhaniram P.W.-6 revealed that appellants Vishwanath and Ranjeet had, after entering the room where Rajkumari was sleeping, emerged from the room after half an hour and thereafter appellants Ramnaresh and Amar Singh went inside the room and came out after half an hour. Thus, if Rajkumari was alive when Ramnaresh and Amar Singh entered the room, the charge for commission of murder of Rajkumari against appellants Vishwanath and Ranjeet could t<i not be held to have been established. The fact that hyoid bone of Rajkumari was not fractured ruled out the possibility that Rajkumari was throttjed by four able bodied young men while causing her death after ravishing her. Lastly, it was argued that the testimony oT Dhaniram P.W.-6 was neither wholly reliable nor wholly unreliable and, therefore, unless it was corroborated in material particulars by reliable testimony, direct or circumstantial, conviction and sentence awarded against the appellants by the learned Additional Sessions Judge, Pendra Road was liable to be set aside. Learned counsel further argued that the prosecution had failed to establish that the appellants were potent and capable of sexual intercourse since no materia] was placed on reeord with the documents under Section 173 of the Code to show that the appellants were subjected to medical examination as required under Section 53A of the Code. So far as the presence of semen and human spermatozoa on the slides H1, 11, J1 and K1 was concerned, no material was produced by the prosecution as to who had prepared these slides. In other words, there was no material to show that the slides H1,11, J1 and K1 werethe seminal slides ofthe appellants. The memo Ex.P-13 also did not reveal that the slides seized by the police were seminal slides or were seized from the person who had prepared such slides. In the absence of any material to connect the slides H1, 11, J1 and K1 to the appellants the report Ex.P-23 of the Forensic Science Laboratory, Raipur was of no avail to the prosecut'on against the appellants. It was further argued that Sunita P.W.-2, Anita P.W.-3, Belabai P.W.-5 and Kamlesh P.W.-10, who were alleged to have seen the ^ppellants in the house of appellant Ranjeet on the night of 9-8- 2006 did not support fhe prosecution story and had turned hostile. The testimony of Dhaniram P.W.-6 not being of a sterling quality could not therefore form the basis for convicting the appellants under Sections 10 449, 376(2)(g) and 302 read with Section 34 of the Indian Penal Code. So far as Criminal Reference No.3/2007 by the learned Additional Sessions Judge, Pendra Road under Section 366(1) of the Code is concerned, on the above premises, Smt. Fouzia Mirza, learned counsel appearing for the appellants/accused in Criminal Appeal No. 1117/2007 argued that the appellants/accused were liable to be acquitted after givingthem benefitofa reasonable doubt. (11) Shri Bhaskar Payashi, learned Panel Lawyer appearing for the State in Criminal Appeal No.1117/2007 and Criminal Reference No.3/2007 argued in support ofthe impugned judgment and contended that presence of Dhaniram P.W.-6 at the place of occurrence was established by the prosecution beyond doubt. The non-disclosure of the occurrence by Dhaniram P.W.-6 to anyone till recording of statement under Section 161 ofthe Code bythe police on 12-8-2006 is explained by the fact that Dhaniram P.W.-6 was a boy of tender age of 16 years and would have been aghast and extremely frightened after witnessing the gruesome rape and murder by the appellants/accused on the wife of his master Indrajeet P.W.-1. Besides, the evidence led by the prosecution revealed that appellant Ranjeet was present through out when Indrajeet P.W.-1 returned home. Similarly, appellant Vishwanath had also accompanied the body of Rajkumari for post mortem. Thus, two of the appellants were constantly keeping a dose watch on Dhaniram P.W.-6, who, therefore, could not gather enough courage to disclose the commission of offence by the appellants/accused to anyone. Besides, according to Dhaniram P.W.- 6, he was under a threat by the appellants/accused that if he disclosed the incident to anyone, they would also kill him, which showed that the appellants/accused had not only intended but did commit murder of Rajkumari after committing gang rape on her. It was further argued that f A ,4) 11 since Rajkumari had bled from mouth and nose, the fact that presence of blood stains was confirmed on a white piece of saree showed that the appellants had gagged Rajkumari by that cloth and, therefore, she could not shout while being ravished by the appellants/accused. It was further argued that in the examination under Section 313 of the Code and the reply to Question No.28, the appellants, on being confronted with the testimony of Dhaniram P.W.-6, did not deny that they had gone to the house of Indrajeet P.W.-1 at night but merely showed ignorance. As regards the testimony of Indrajeet P.W.-1 in paragraph 10 referred above in paragraph 10 supra, it was argued that Dhaniram P.W.-6 and Investigating Officer R.P.Ahirwar Sub-Divisional Officer of Police P.W.- 15 were not confronted with it by the defence. While deriving support from Modi's Medical Jurisprudence and Toxicology (Twenty-Third Edition, Editors Shri K. Mathiharan and Shri Amrit K. Patnaik), it was argued that asphyxial death of Rajkumari due to throttling was clearly proved in view of the finding that petechial haemorrhage of lungs was present, right chamber was filled with blood while left chamber was empty and bloody froth was emerging from nostrils and mouth. During autopsy the hands of the deceased were not clenched because Rigor Mortis had passed away in the upper limbs. It was argued that if the windpipe was not completely closed, then by application of pressure on the throat bleeding would occur from the mouth and nostrils and death may not be instantaneous, but may be delayed and the person would be rendered insensible thereafter. So far as the confirmation of death penalty is concerned, it was argued that the gruesome rape and murder of the hapless sister-in-law on the Rakshabandhan Day by the brother- in-law in concert with three other co-accused was one of the most aggravating circumstances which would justify the extreme penalty, i.e., death sentence. It was further argued that the act of the ?9 12 appellants/accused was premeditated since before commission of rape they had assembled in the house of appellant Ranjeet and had consumed liquor. The manner in which a hapless young married woman with two minor children was raped and murdered by the appellants/accused in her house, the case squarely fell into the category of the rarest of rare cases and, therefore, death penalty awarded by the learned Additional Sessions Judge, Pendra Road was wholly justified and deserved confirmation bythe High Court. (12) Dr. Rajesh Pandey, learned counsel appearing for respondents No.1 and 3/accused namely Ramnaresh and Amar Singh in Criminal Reference No.3/2007, replying to the death reference, argued that the conduct of Dhaniram P.W.-6, the solitary witness was unnatural inasmuch as he did not disclose the names of the respondents/accused to anyone for 2 days. Learned counsel further argued that the testimony of Sugaribai P.W.-12 did not disclose that when Dhaniram P.W.-6 informed her, he was perplexed or was in a state of shock. It was further argued that according to Dhaniram P.W.-6 the offence had occurred sometime before midnight whereafter he had informed Sugaribai P.W.-12 and the testimony of Sugaribai P.W.-12 revealed that Dhaniram P.W.-6 had informed her at 3 A.M. Thus, there is material contradiction regarding the time when Dhaniram P.W.-6 actually informed Sugaribai P.W.-12. If the respondents/accused had committed the gruesome rape and murder of Rajkumari, they would not have asked Dhaniram P.W.-6 to inform Sugaribai P.W.-12, but would have simply threatened him to keep quiet. It was also argued that the testimony of Indrajeet P.W.-1 revealed that his brother Harjeet Prasad (which according to Shri Bhaskar Payashi, learned Panel Lawyer appearing for the State is a typographical error while recording evidence and should have been Ranjeet) was also present at the house 13 on the date of occurrence, but during investigation the whereabouts of Harjeet Prasad were not explored. It was further argued that the delay of 2 days in recording statement of Dhaniram P.W.-6 rendered his testimony unworthy of credit. The prosecution had miserably failed to prove that the respondents/accused had been medically examined to find out traces of skin in their nails or to prove that they were potent and capable of sexual intercourse. Breach of Section 53A of the Code during investigation was thus a serious lacuna, which created a serious dent in the prosecution story. The testimony of Dhaniram P.W.-6 would reveal that the needle of suspicion for being involved in commission of the offence also revolved around him. It was, therefore, incumbent upon the investigating officer to have got the pattern of nails of Dhaniram P.W.-6 examined during investigation. Learned counsel also submitted that conduct of respondent/accused Ranjeet in being present through out on the following day on arrival of Indrajeet P.W.-1 at the place of occurrence also ruled out his participation in the crime. The fact that the police had on 19-9-2006 got the statement under Section 164 of the Code of Dhaniram P.W.-6 recorded would go to show that the police wanted to pin him down to the statement recorded under Section 161 of the Code per force while detaining him in the lock-up. Learned counsel argued that the possibility that Dhaniram P.W.-6, whose presence at the scene of occurrence was not in dispute, had committed rape and murder of Rajkumari could not be ruled out. It was also argued that the prosecution had failed to bring home the guilt of the respondents/accused beyond the shadow of doubt and in the facts and circumstances awarding death penalty to the respondents/accused was wholly uncalled for because the case did not fall into the category of the rarest of rare cases. /F^^.' ."•^a^ ^ l'-a^ ^ "^ 14 (13) Shri Arun Kochar, learned counse] appe'aring for respondents No.2^and 4/accused namely Vishwanath Singh and Ranjeet Kewat in Criminal Reference No.3/2007 adopted the arguments advanced by Dr. Rajesh Pandey, learned counsel for respondents No.1 and 3/accused namely Ramnaresh and Amar Singh. (14) Having considered the rival submissions, we bave perused the . /• %f- record with utmost circumspection. There is absdlutoly