RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 71 Of 2005 Jaypal …Appellant Versus State of Uttaranchal …Respondent February 28, 2011 CORAM:- HON’BLE MRS. JUSTICE NIRMAL YADAV, J. HON’BLE MR. JUSTICE SUDHANSHU DHULIA, J. Present: Smt. Pushpa Joshi, Advocate for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State. (Per: Nirmal Yadav, J.) This appeal, under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), has been preferred by accused Jaypal, challenging the judgment and order dated 6.5.2005, passed by Additional Sessions Judge/II F.T.C., Udham Singh Nagar in Sessions Trial No. 329/2003, State v. Jaypal, whereby accused Jaypal has been convicted under Section 302 IPC and sentenced to life imprisonment and a fine of Rs. 5000/-. In default of payment of fine, he has further been directed to undergo imprisonment for one year. He has also been convicted under Section 364 IPC and sentenced to five years’ rigorous imprisonment and a fine of Rs. 1000/-, in default, to undergo three months’ imprisonment. He has further been convicted under Section 201 IPC and sentenced to five years’ rigorous imprisonment and a fine of Rs. 1000/-, in default, to undergo three months’ imprisonment. The appellant Jaypal has also been convicted under Section 376 read with Section 511 IPC and sentenced to seven years’ 2 rigorous imprisonment and a fine of Rs. 1000/-, in default, to undergo three months’ imprisonment. All the substantive sentences have been directed to run concurrently. 2. The criminal law was set in motion on application Ex. Ka-1 submitted by PW1 Smt. Anita, mother of the prosecutrix (name withheld, and hereinafter referred to as ‘X’). According to the complainant, she was working as Safai Karamchari in Riverdale International School, Bazpur. On 18.8.2003 at about 4 pm, her daughter ‘X’, aged about 10 years, was playing at her house, when accused Jaypal came there and took her daughter towards the jungle on the pretext of cutting woods. Some other children, namely, Arun and Pooja were also playing with her daughter ‘X’. They were sent away by accused Jaypal. When complainant came back at her house at about 6 pm, she did not find her daughter in the house. She was informed by Arun and Pooja that her daughter had been taken away by Jaypal. Her daughter ‘X’ was seen in the company of Jaypal by PW2 Mahesh and PW5 Dharmveer, when she was being taken away by accused. Complainant searched for her daughter, but she could not be traced. She suspected that Jaypal might have killed her daughter. 3. On the basis of complaint Ex. Ka-1, chick FIR Ex. Ka-4 was recorded by PW6 Constable Clerk Rajendra Pal Singh on the same day at 10.45 pm. The investigation of the case was conducted by PW8 S.I. Mouinuddin. He inspected the place of occurrence and prepared site plan Ex. Ka-8. The accused was arrested and interrogated on 3 22.8.2003 by PW7 Inspector D.C. Dhondhiyal. On interrogation, the accused disclosed the facts and on his pointing out, the dead body of prosecutrix ‘X’ was recovered on 23.8.2003 at 1 am, which was identified by her mother Anita (PW1). Recovery memo Ex. Ka-3 was prepared at the spot. Thereafter inquest report Ex. Ka-9 was prepared by the Investigation Officer. Along with the inquest report, other papers, viz., sketch of the dead body Ex. Ka-11, sample seal Ex. Ka-13, police form no. 13 Ex. Ka-12 and letter to C.M.S. Ex. Ka-10 were also prepared and dead body was sent for the post-mortem. 4. On completion of the investigation, challan was presented and accused was chargesheeted under Section 302/201 IPC, 364 IPC and 376 read with Section 511 IPC, to which he pleaded not guilty and claimed trial. 5. The prosecution, in order to prove its case, examined as many as eight witnesses. PW1 Anita, mother of prosecutrix ‘X’, is the first informant. PW2 Mahesh and PW5 Dharmveer are the witnesses, who had last seen the prosecutrix ‘X’ in the company of accused Jaypal. PW4 Saran Kumar was present at the time of recovery of dead body. PW6 Constable Clerk Rajendra Pal Singh is a formal witness, who had recorded the chick FIR. PW7 Inspector D.C. Dhondhiyal arrested and interrogated the accused. PW8 S.I. Mouinuddin is the Investigating Officer. 6. PW3 Dr. Madan Mohan conducted the post- mortem on the dead body of prosecutrix ‘X’ and prepared 4 the post-mortem report Ex. Ka-2. He found the following ante mortem injuries on the person of deceased: (i) Ligature mark 22 cm x 2.5 cm on the front side around the neck below thyroid gland, situated 5.5 cm below chin, 6 cm below left ear and continued 6.5 cm below right ear. On internal examination, the subcutaneous tissues under the mark were found ecchymosed. Underlying hyoid bone was found to be fractured. (ii) Vaginal tear was at 5 O’clock position with dilation on vaginal orifice. 7. According to Doctor, the dead body was in advanced decomposed stage. Maggots were present all over the body. Scalp was absent and skull was exposed. Whole body was distended. Tongue was protruding between the teeth. Eyes bulged & badly destructed. Part of periorbital region bulged and tip of nose was lost. Parts of both ear were also lost. About 2-3rd part of lower end of right thigh was lost. Right femur was exposed. Tibia and fibula of left leg were exposed. Part of left heel was also lost. Remaining part of chin also lost. Teeth were loose in their sockets. Hair and nails could easily be pulled out. The membranes, lungs and other parts of the body were found soft and decomposed. Cause of death was opined to be asphyxia due to strangulation. 8. When examined under Section 313 CrPC, the accused denied the allegations and the incriminating evidence put to him and pleaded false implication. According to him, he was arrested by the police during 5 the night of 18.8.2003. He was detained in the police station for 4-5 days and was given beatings. 9. We have heard Smt. Puspha Joshi, learned Counsel for the appellant and Mr. Prabhakar Joshi, learned Brief Holder for the State and have carefully scrutinized to the trial court record. 10. Learned Counsel for the appellant argued that it is a case of circumstantial evidence and the prosecution has miserably failed to prove the complete chain of circumstances. It is pointed out that PW2 Mahesh and PW5 Dharmveer belonged to the community of complainant. Their presence at the time and place, where they are alleged to have seen the accused with the prosecutrix ‘X’, is highly improbable. Both of them are chance witnesses. PW5 Dharmveer was working as Helper on the Combined Machine of Harkaran Singh, while PW2 Mahesh was working at Ranjeet Nagar Farm. She further argued that both of them are highly interested witnesses. PW2 Mahesh was working with the same employer in whose school the complainant Anita was working. Learned Counsel argued that if PW2 Mahesh and PW5 Dharmveer had seen the accused taking the prosecutrix ‘X’ towards the jungle and if they had disclosed the said fact to the complainant, the complainant and the witnesses would have certainly gone towards the jungle in search of the prosecutrix ‘X’. There is nothing on record to indicate that any of the above- mentioned witnesses or the complainant along with other villagers had tried to search the prosecutrix ‘X’ in the jungle. If they had made some efforts, they would have 6 certainly noticed the body of prosecutrix ‘X’ at the place where it is alleged to have been recovered on the pointing out of the accused. 11. Learned Counsel for the appellant pointed out the discrepancies and contradictions in the statement of PW2 Mahesh and PW5 Dharmveer. She pointed out that Mahesh, in his cross-examination, stated that after he had seen the accused with prosecutrix ‘X’ on the culvert of river Lebda, he went back to his house, and when Anita (PW1) came to his house at 7.30 pm, he disclosed about the prosecutrix ‘X’ having seen by him going with accused Jaypal. Even PW5 Dharmveer stated that he had disclosed to Anita about the prosecutrix ‘X’ having seen by him with Jaypal at about 6 pm in his house, whereas Anita has stated that both the witnesses had met her at the culvert of river Lebda. 12. Learned Counsel for the appellant pointed out that even the recovery of dead body in the manner stated by the prosecution is highly doubtful. It is argued that it is evident from the evidence on record that accused was arrested by the police during the night of 18.8.2003 and on the next day i.e. 19.8.2003, Ratnakar, leader of Balmikis, had staged a dharna and gheroed the police station to hand over the accused Jaypal to them so that they could award punishment to him. This fact is corroborated from the cross-examinations of PW1 Anita and PW4 Saran Kumar. Saran Kumar admitted in the cross-examination that police had arrested Jaypal from his house on the same day and the police station was also gheroed on the same day. Learned Counsel further 7 pointed out that according to the prosecution, the dead body was recovered at 1 am on 22.8.2003. However, there is nothing on record to show that there was any source of light at the place where the alleged recovery was made. Neither the Investigating Officer PW8 S.I. Mouinuddin, nor PW4 Saran Kumar, the witness of recovery has disclosed about the source of light. This fact creates serious doubt in the prosecution story. 13. Learned Counsel for the appellant further argued that even the medical evidence does not support the prosecution case. As per the post-mortem report, the dead body was in a highly decomposed condition and maggots were present allover the body. The skull was exposed and the scalp was absent. It is argued that in case, dead body was found in the water of Lebda river, maggots could not be present on the dead body. Learned Counsel further argued that in case, dead body was thrown in the Lebda river, it would have been certainly noticed by some villagers during the period of four days after the alleged occurrence and the recovery at the behest of accused is manipulated by the prosecution in order to show that the chain of circumstances is complete. 14. On careful consideration of the entire evidence, we are unable to accept the arguments advanced by learned Counsel for the appellant. There is no dispute that prosecution case rests upon circumstantial evidence. The prosecution has proved the following circumstances: 8 (i) The last seen evidence of Mahesh (PW2) and Dharmveer (PW5) at about 4 pm on 18.8.2003. (ii) The recovery of dead body at the behest of accused Jaypal. (iii) The medical evidence supports the prosecution case so as to complete the chain of evidence to prove the guilt of accused. 15. The last seen evidence consisting of PW2 Mahesh and PW5 Dharmveer, both of them have categorically stated that they had seen the prosecutrix ‘X’ going with Jaypal, accused, at about 4 pm on 18.8.2003. On their enquiry as to where he was taking the prosecutrix ‘X’, accused told them that he was going to jungle for cutting woods. Both these witnesses were strenuously cross-examined by the defence, but nothing could be elicited to discard their testimony. The only contradiction pointed out in their statement is with regard to the place they disclosed the fact of their having seen the prosecutrix ‘X’ with accused Jaypal. This could possibly be because of lapse of time as the statement of PW2 Mahesh was recorded after about nine months and the statement of PW5 Dharmveer was recorded almost after a year. Even this discrepancy is insignificant. The learned defence counsel could not point out any reason for both these witnesses to falsely implicate the accused, except that they belong to the same community to which the complainant belongs. We are unable to agree with this contention of the learned Counsel. 16. The testimony of the aforesaid two witnesses finds support from the medical evidence. Dr. Madan 9 Mohan clearly stated that the death of prosecutrix ‘X’ could have occurred five days prior to the date of conducting the post-mortem. The reason behind death was found to be asphyxia on account of strangulation, and a vaginal tear was found and vaginal orifice was found dilated, which could be possible only if the accused had committed or tried to commit rape on the prosecutrix ‘X’, who was just 10 years old at the time of occurrence. To our mind, this appears to be a very brutal act upon a child of very tender age, who was possibly not able to resist or raise any alarm against an able-bodied person. 17. The recovery at the behest of the accused further completes the chain of circumstances. PW4 Saran Kumar was present at the time of recovery, which was made at the behest of the accused. Saran Kumar is an independent witness. There is no suggestion that he was in any way related to complainant or biased against the accused. The learned Counsel argued that according to this witness, police had arrested the accused on the same day from his house, which corroborates the defence version. This argument raised by the learned Counsel cannot be accepted, as PW4 Saran Kumar admitted that he was not present in his house on the date of occurrence. He had gone to Khatima on that day and he was informed about this incident by her family members and, therefore, he could not tell whether the accused was arrested by the police on the same day or thereafter. 18. The argument of the learned Counsel that if the dead body was found from the Lebda river, the maggots could not have been found on the body of the 10 deceased. This argument itself has no legs to stand as the body was recovered under the Date tree. 19. From the entire evidence and material available on record, we are of the opinion that the prosecution has been able to successfully establish the complete chain of evidence, which certainly points out finger of guilt towards the accused. It is well proved that the prosecutrix ‘X’, a girl aged 10 years, was taken away from her house by the accused Jaypal. He was last seen in the company of the prosecutrix ‘X’ by PW2 Mahesh and PW5 Dharmveer, who disclosed this fact to PW1 Anita, mother of the deceased. Her dead body was found on the fifth day of the occurrence, on the pointing out of the accused himself. Both the witnesses, who had last seen the accused accompanying the prosecutrix ‘X’, have no axe to grind with the accused. The medical evidence, as discussed above, fully supports the prosecution case, which clearly shows that the prosecutrix ‘X’, a girl of very tender age, was subjected to sexual assault in a very brutal manner and thereafter she was strangulated to death. 20. In view of our foregoing discussion, we do not find any merit in the appeal and no ground for the interference with the impugned judgment and order of the trial court is made out. 21. Consequently, the appeal is dismissed. The judgment and order dated 6.5.2005, passed by Additional Sessions Judge/II F.T.C., Udham Singh Nagar in Sessions Trial No. 329/2003, State v. Jaypal, is hereby 11 affirmed. We uphold the conviction of the accused and sentence awarded to him by the trial court. 22. Let a copy of this judgment be sent to the trial court for its compliance. Office is directed to send back the trial court record. (Sudhanshu Dhulia, J.) (Nirmal Yadav, J.) prabodh