IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Reference No. 01 of 2009 S tate of Uttarakhand ...…………. Applicant / Appellant Versus Tota Ram S/o Sri Lala Ram R/o Village Pardholi, P.S. C.B. Ganj, District Bareilly. ...…………. Convict / Respondent Mr. Nandan Arya, A.G.A. with Mr. P.S. Bohara, Brief Holder, present for the applicant / State. Mr. R.P. Nautiyal, Advocate, with Ms. Jyoti Joshi, Advocate, present for convict / respondent. Along with Criminal Jail Appeal No. 26 of 2009 Tota Ram S/o Sri Lala Ram R/o Village Pardholi, P.S. C.B. Ganj, D istrict Bareilly. ...………… Appellant (in jail) Versus State Uttarakhand ...…………. Respondent 2 Mr. R.P. Nautiyal, Advocate, with Ms. Jyoti Joshi, Advocate, present for the convict / appellant. Mr. Nandan Arya, A.G.A., with Mr. P.S. Bohara, Brief Holder, present for the respondent State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Hon. Prafulla C. Pant, J. (oral) This reference has been made under Section 366 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), by the Sessions Judge, Champawat, for affirmation of the sentence of death awarded by said court against the convict / appellant Tota Ram under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.). Convict / appellant Tota Ram has been further convicted under Section 376 of I.P.C., and sentenced to rigorous imprisonment for period of ten years, and also directed to pay fine of ` 5,000/- vide impugned judgment and order dated 22.08.2009, passed by Sessions Judge, Champawat, in Sessions Trial No. 12 of 2006. Against said order, appeal has also been filed by the convict. 2) Heard learned counsel for the parties and perused the lower court record. 3) It is a case of murder of a female child, after committing rape on her. Prosecution story, in brief, is that on 09.05.2006, Shivani, a minor child, aged seven years, resident of Tanakpur, had gone in the evening, 3 out of her house on invitation in her neighbourhood, to attend a birthday of a child. She did not return home. Next day i.e. on 10.05.2006, P.W. 1 Amzad Hussain (informant), P.W. 2 Kasid Ali, and some others saw dead body of a female child lying near railway line in Tanakpur, within the limits of Village Manihar Goth. They saw that there was bleeding from the private parts of the female child and suspected that she has been subjected to rape before commission of her murder. P.W. 1 Amzad Hussain got scribed report (Ext. A –1) through one Atik-ur-Rehman and gave it to the police, on the basis of which the police registered Crime No. 357 of 2006, relating to offences punishable under Section 302 and 376 of I.P.C., at about 08:20 P.M., at police station Tanakpur, against unknown person. The investigation was taken up by P.W. 11 Inspector Rakesh Chand Thapliyal. The inquest report (Ext. A – 2) was prepared on the very day (10.05.2006) in the presence of Atik-ur-Rehman, Amzad Hussain (P.W. 1), Kasid Ali (P.W. 2), Shahid Ali and Abid Hussain (P.W. 3). The police further got prepared other necessary papers and sent the dead body for postmortem examination. P.W. 10 Dr. A.M. Raturi conducted autopsy on 11.05.2006, at 04:15 P.M., and prepared postmortem examination report (Ext. A –8). In said report he observed that the maggots were seen in the cavity of the nose and mouth. Tongue was found pressed in between the teeth. Vagina wide opened with marked injury present through which larva could be 4 seen. Vaginal slides were taken and sent for examination. Pleura and lungs were found congested. On internal examination of generation organs tear of vagina wall was noticed. The finding given by the Medical Officer in the autopsy report was that the deceased had died 2-4 days back due to ante mortem haemorrhage and asphyxia leading to her death. P.W. 10 Dr. A.M. Raturi in his statement opined that the deceased might have died after suffering injuries due to sexual intercourse by an adult person. From the medical evidence adduced by P.W. 10 Dr. A.M. Raturi read with the autopsy report (Ext. A –8) it is proved on the record that Shivani (deceased) had died homicidal death and she was subjected to rape before her death. Now, we have to examine whether the prosecution has successfully proved it or not, that convict / appellant Tota Ram committed rape on Shivani, and murdered her. We have also to see whether it is a case of rarest of rare in nature, which deserves sentence of death. 4) P.W. 1 Amzad Hussain (informant) has stated that on 10.05.2006, he heard talking people that a dead body of a female child is lying near railway line behind Jat Farm. He further stated that he along with Atik-ur- Rehman, Abid (P.W. 3), Shahid and others went to the spot and saw the dead body of a female child. He has described that there was bleeding from the private parts of the girl. The witness further states that he got 5 scribed the report (Ext. A –1) through Atik-ur-Rehman, and gave it to the police. He further states that thereafter police took the dead body in their possession, and prepared inquest report (Ext. A –2). 5) P.W. 2 Kasid Ali, resident of Village Manihar Goth, has corroborated the statement of P.W. 1 Amzad Hussain, who states that some women told him and other persons of the village that a dead body of a female child is lying near railway line behind Jat Farm. He has further corroborated that there was bleeding from the private parts of the girl. This witness has also proved that fact that the police prepared inquest report (Ext. A –2) in his presence and in the presence of other witnesses. 6) P.W. 3 Abid Hussain is also witness of preparation of inquest report, and has corroborated the testimony of P.W. 1 Amzad Hussain and P.W. 2 Kasid Ali. 7) P.W. 4 Smt Kiran is the mother of the deceased. She states that she is originally resident of C.B. Ganj, Bareilly, but used to live in Tanakpur in a rented accommodation with one Ramesh. She further told that accused Tota Ram is cousin of Ramesh. She further states that she had five children. Two of them used to live with her father-in-law, and three were 6 living with her, which included Shivani (deceased), aged seven years, and Rekha, aged three years. P.W. 4 Smt. Kiran further states that accused Tota Ram also used to live with Ramesh in her room. Regarding the incident of 09.05.2006, the witness states that on said date there was a birthday of son of one Raju in the neighbourhood where Shivani had gone, and did not come back. She further states that on that day she had given accused Tota Ram some money by which he bought meat and two quarters of alcohol. P.W. 4 Smt. Kiran further states that her father Kamta and accused Tota Ram took liquor and had meat in dinner. Thereafter, according to this witness at about 07.30 P.M., there was failure of electricity and though she tried to search for Shivani, but Ramesh told her that she (Shivani) might have slept in the house of Raju (the neighbour where she had gone to attend birthday of a child), and in the morning he would bring her back. The witness further discloses that about 10:30 P.M., she woke up and noticed that accused Tota Ram was not on his bed. He came back around 11:45 P.M., and called her –‘BHABHI! BHABHI!’. P.W. 4 Smt. Kiran further told that she reluctantly rose from the bed and opened the door. Accused Tota Ram asked her not to wake up Ramesh. He (Tota Ram) took her out behind a shop. On this, she asked him as to what was the matter. On this, accused Tota Ram told her if he divulged the truth, she would oust him. The witness further narrates that accused Tota Ram, on her promising him that she 7 would not disclose anything to anyone, made the confession to her that he has committed rape on Shivani, and she has been killed by him. Having gone through the entire statement of P.W. 4 Smt. Kiran, we found that her statement is natural and trustworthy and cannot be disbelieved. In the cross-examination she has frankly admitted that Ramesh was her paramour. 8) P.W. 5 Kishor is the witness of recovery of panty (a lower undergarment) of the victim which was recovered on pointing out of the accused Tota Ram. This witness has stated that a pair of chappals and a panty (a lower undergarment of the deceased) were recovered by the police on pointing out of the accused Tota Ram on 17.05.2006, from a place behind the gate of Jat Farm. This witness proved the memorandum of recovery (Ext. A –3). On perusal of said document, we find that recovery memorandum is not only signed by the witnesses, but also by the accused Tota Ram himself. 9) P.W. 6 Nanku is the witness who has stated that on the day of incident he had last seen Shivani with accused Tota Ram. The witness states that it was the evening of Tuesday on 09.05.2006, when he had shared liquor with P.W. 5 Kishor, and gave some sweets to Shivani and her younger sister, who went back. Soon after sometime, he saw accused Tota Ram taking 8 Shivani towards railway line at about 10:00 P.M. – 10:30 P.M. The witness further states that he could not suspect any foul play as the accused Tota Ram used to live in the house of the victim. In the cross- examination, this witness has stated that there was no light at that point of time, but it was not that dark in which he could be unable to see and identify Tota Ram and Shivani. 10) P.W. 7 Santosh Saxena is a shopkeeper, who has stated that accused had given him a bag containing clothes to keep in the shop, which was given by him to the police on 17.05.2006. The witness further states that the police prepared memorandum (Ext. A –4) of recovery of the clothes, which included underwear of the accused. 11) P.W. 11 Inspector Rakesh Chand Thapliyal, the Investigation Officer, has stated that he got sent the clothes for chemical analysis. Ext. A –16 is the report of the Forensic Science Laboratory in which it is mentioned that on item No. 2 (panty of the victim) and item No. 5 (underwear of the accused) sperms were found. P.W. 9 Dr. Vinod Kumar Joshi, who had medically examined the accused Tota Ram on 18.05.2006, has observed in his report (Ext. A –7) that there was contusion with swelling on the upper part of penis of the accused. 9 12) Having re-assessed the evidence on record, we agree with the trial court that the prosecution has successfully proved the circumstances completing the chain against the accused Tota Ram that he committed rape on the deceased, and murdered her. 13) On behalf of the convict / appellant it is argued that there was no source of light in which P.W. 6 Nanku could see the accused as such his testimony should not be believed. However, we do not find much substance in the argument for the reason that the accused was known to the witness, and even if there was no electric light, there was no difficulty for the witness to identify the known person (accused) going with the deceased. 14) It is also argued on behalf of the convict / appellant that the dead body of the deceased was shown unknown as mentioned in the inquest report, and as such, it cannot be said that it was body of Shivani. We have examined the evidence on record carefully, and find that it is proved by the Investigating Officer P.W. 11 Rakesh Chand Thapliyal that on the date of postmortem examination the face of the girl was opened and identified by Smt. Kiran (P.W. 4) that it was that of her daughter Shivani. 15) It was also contended that convict / appellant Tota Ram has been falsely implicated. In this connection, it is submitted that had Tota Ram committed 10 rape on the daughter of P.W. 4 Kiran, she could have easily lodged first information report against him, but she kept quite. In our opinion, the reason for keeping mum on the part of mother of the deceased is not difficult to be found from the record. It has come on the record that P.W. 4 Smt. Kiran was living separately from her husband with one Ramesh in Tanakpur in a rented accommodation with her three children. She admitted in her cross-examination that Ramesh was her paramour. She has further disclosed that accused Tota Ram was cousin of Ramesh. It is also stated by the witness (P.W. 4) that accused Tota Ram also used to live in the same room in which she along with Ramesh used to stay. She has stated that in the intervening night of 9th and 10th of May 2006, after commission of crime, accused called her in the night, took her silently out and confessed to her only after she promised him that she would not say anything to anyone. With that confidence accused made extra judicial confession to the mother of the deceased. In such circumstances, we find that there was sufficient reason for keeping quite on the part of P.W. 4 Smt. Kiran in not disclosing anything to the police at her instance. 16) However, on the point of sentence, though, we agree with the trial court that the offence is gruesome and heinous in nature, but it has also come on the record that accused committed the crime in a drunken state and made confession immediately thereafter to the mother of the victim, repenting for what he had done. Considering that 11 aspect of the matter, we are of the view that it would meet the ends of justice if we commute the sentence to the imprisonment for life. 17) Accordingly, the reference made by the trial court stands answered, and instead of confirming the sentence of death awarded by the trial court, we commute the sentence to imprisonment for life against the convict Tota Ram. The conviction recorded by the trial court under Section 376 and 302 of I.P.C. against accused Tota Ram is confirmed. The sentence awarded against him by learned Sessions Judge, Champawat, under Section 376 of I.P.C., is also confirmed. The appeal filed by the convict is dismissed to the extent of conviction and sentence awarded against him under Section 376 of I.P.C. However, the appeal stands partly allowed on the point of sentence passed under Section 302 of I.P.C., as modified above. Let a copy of this judgment be sent to the trial court, with reference to its letter No. 638 / 2009, in Sessions Trial No. 12 of 2006, dated August 22, 2009. Also, a copy of this judgment be sent to the Superintendent of jail concerned, where the convict Tota Ram is lodged. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) Dt. November 19, 2010. H. Negi 12