IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting. (Chapter VIII, Rule 32 (2) (b) Description of the Case. Criminal Appeal No. 194 of 2002 decided on 08-12-2003 Sewa Singh & another Vs. State of Uttaranchal Criminal Reference No. 2 of 2002 Approved for reporting ______________________ Not approved for reporting Date of decision 08.12.2003 Initial of Judge Note- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARANCHAL AT NAINTIAL. Crimianl Appeal No. 194 of 2002 1- Sewa Singh S/o Jagta Singh R/o village Hasanpur ( Chachar ) P.S. Kichha District Udham Singh Nagar. 2- Mukhtyar Singh S/o Harbhajan Singh R/o village Hasanpur (Chachar) P.S. Kichha District Udham Singh Nagar ..Appellants. Vs. State of Uttaranchal …Respondent. AND Criminal Reference No. 2 of 2002 Sri Khalil Ullah Khan, Advocate learned counsel for appellants. Sri Raman Shah, Advocate learned A.G.A. for respondent-state. Date: 08-12-2003 Coram: Hon’ble S.H. Kapadia, C.J. Hon’ble Irshad Hussain, J. (ORAL JUDGMENT): (Per: Hon’ble Irshad Hussain J.) This is an appeal under section 374 (2) of Code of Criminal Procedure, 1973 ( for short ‘Code’) against the judgment dated 12-7-2002, whereby both the appellants were convicted and sentence of death was passed under section 302 I.P.C.read with section 34 I.P.C. They were also convicted and sentenced to undergo R.I. for five years each under section 377 I.P.C. read with section 34 I.P.C. and R.I. for four years each under section 377 I.P.C. read with section 34 I.P.C. They were, however, acquitted of the charge under section 201 I.P.C. Appellant Sewa Singh was further acquitted of the charge under section 4/25 Arms Act. 2- Criminal reference under section 366 of the ‘Code’ is submitted by Sessions Judge, Udham Singh Nagar in view of the sentence of death passed against both the appellants, per aforesaid judgment in Sessions Trial Nos. 378/2002 and 379/2000, which were consolidated for trial. 3- Both the appellants aged about 22 years are cousin brothers. They are residents of village Hasanpur within the circle of P.S. Kichha District Udham Singh Nagar. Km. Sukhvinder Kaur aged about 20 years, victim in the instant case, was the daughter of Massa Singh ( P.W.1 ) of the same village. She was a teacher in Shahji pUblic School, Uttam Nagar within the circle of P.S. Baheri. She used to leave her house at about 7.00 a.m. for the school and used to return in the after-noon at about 2.00. This was her routine on school days. 4- As per the prosecution version on 19-8-2000 also she left her house for the school but failed to return till late evening hours. Her father, Massa Singh and other villagers then started making search of her. At about 12.30 in the night between 19/20-8-2000 the dead body of Km. Sukhvinder Kaur was found lying in half naked state with injuries in the sugarcane field of Sukhchain Singh of village Uttam Nagar situate adjacent to the Uttam Nagar-Hasanpur ‘Kuchha Rasta’. The sugar cane field is the part of the territory of village Hasanpur. The victim had sustained fatal injuries of sharp edged weapon some time after 1.30 p.m. when she was returning to her house from the school. It was apparent that the victim was forcibly taken inside the sugar cane filed with evil intention on her chastity and when she put resistence she was killed at that spot. 5- Informant, Massa Singh thereafter got prepared the written report (Ext.Ka.1) by scribe Baz Singh and lodged it at P.S. Kichha at 01.05 a.m. on 20-8-2000, whereby check F.I.R. ( Ext. Ka.6) was prepared and case under section 302/201 I.P.C. was registered against unknown assailant. Investigation of the case was taken up by incharge of police station S.I. Ram Lakhan Singh Yadav ( P.W.10). 6- As part of the investigation services of Sniffer Dog was decided to be taken and as a consequence thereof Dog Handler Shasank Sekhar Shukla (P.W.110 from the dog squad of U.P. C.B.C.I.D. stationed at Bareilly reached with Sniffer Dog ‘Goldie’ at the scene where the dead body of the victim was lying. The dog was given smell of the deceased and thereafter the dog on tracking went towards village Hasanpur and on reaching at the house of appellant Mukhtyar Singh started barking. The dog wanted to enter inside the house, and soon as appellant Mukhtyar Singh came out the dog started barking on him. Thereafter, the dog tracked towards the house of appellant Sewa Singh and started barking there also and when said appellant came out of the house he too was singled out for barking upon by the dog. 7- In view of above and out of suspicion both the appellants were picked up by the police and were sent for their medical examination at Community Health Centre, Kichha District , Udham Singh Nagar. Medical Officer Incharge Dr. S.H. Chauhan (P.W.9) examined appellant Sewa Singh the same day i.e. 20-8-2000 at 2.00 p.m. and prepared injury report ( Ext. Ka. 10). The following injuries were found on the person of the said appellant. (1) Abrasion of size 6 cm x .25 cm present on right side waist, 30 c.m. away form nevus, redish in colour. (2)Two small abrasions of size 3 c.m. x .25 c.m. and 4 c.m. x .25 c.m. on right side of upper abdomen, redish in colour. 8- Appellant Mukhtyar Singh was thereafter examined at 2.10 p.m, and injury report ( Ext. Ka. 11) was prepared. On his person following injuries were detected:- (1) Abrasion 1 c.m. x .05 c.m. on right shoulder. (2) Three abrasions of size 1.5 c.m. x .5 c.m.; 2 c.m. x .5 c.m. and .5 c.m. x .5 c.m. on left shoulder having direction anterior to posterior. 9- In the opinion of the Medical Officer injuries of these appellants were caused by blunt object, these were simple in nature and were probably caused about 24 hours before the medical examination. Medical Officer gave out the probability that these injuries could be sustained by finger nails at about 1.30 p.m. on 19-8-2000. 10- After medical examination the two appellants were let-off and were not detained in connection with the said crime. 11- Meanwhile Investigating Officer Ram Lakhan Singh Yadav ( P.W.10) had as part of the investigation seized hair from the ‘Salwar’ of the deceased lying there at the spot, vide seizure memo ( Ext. Ka.12). Thereafter, he got the inquest held on the dead body of deceased Sukhvinder Kaur. S.S.I. Kunwar Virasat Ali was deputed for this purpose. Inquest report ( Ext. Ka.13) and relevant documents viz., sample seal, letter to C.M.O., challan report, diagram of the dead body ( Exts. Ka. 14 to 17) were also then prepared. The dead body was then packed and sealed and dispatched for post mortem through constables Anil Kumar and Lekhraj. From near the dead body one pair of sandle, one purse, a book, a dot pen, a small mirror, four toffees (chocolates), six papers relating to school, one currency note of Rs. 50/- and two of Rs. 10/- each, two pouches of shampoo and thread roll were seized vide memo ( Ext. Ka.18). He also seized blood-stained and plain earth vide memo ( Ext.Ka. 19) from the place of incident and thereafter he prepared site plan ( Ext.Ka.20). After post mortem the clothes of the deceased were received and relevant articles and the clothe were sent to Forensic Science Lab, Agra for expert report. 12- The appellants were arrested on 29-9-2000 at about 12.30 p.m. in the presence of Surendra Singh ( P.W.4) and Devendra Singh and on the disclosure statement the clothes namely a pair of trouser, shirt and under-wear of appellant Sewa Singh and a pair of trouser, shirt, under-wear and head ‘Patki’ of appellant Mukhtyar Singh were recovered from the house of appellant Sewa Singh as these were kept there in a polethene bag and these clothes the appellants were wearing at the time of the occurrence. The clothes being blood stained were sent to Forensic Science Lab for expert report. The disclosure statement ( Ext. Ka.2) and recovery memo ( Ext.Ka.3) were also prepared. 13- On 29-8-2000 itself on the disclosure statement of appellant Sewa Singh blood-stained knife was recovered from the bushes on the periphery of the Hasanpur Bhanga Canal, vide memo ( Ext. Ka.4) Site plan of the place of the recoveries ( Exts. Ka. 21 and Ka.22) were also prepared by the investigating officer. He recorded the statements of the witnesses and on completion of the investigation submitted charge-sheet ( Ext. Ka.24) against both these appellants under sections 302/201/376/377 I.P.C. on 22-9-2000. 14- Sub Inspector Balbir Singh ( P.W.12) took up the investigation of the case pertaining to recovery of the knife and he submitted charge-sheet (Ext. Ka. 27) against the appellant Sewa Singh under sections 4/25 of the Arms Act on 3.10.2000. 15. During the course of investigation statements of the witnesses recorded revealed that the appellants made extra-judicial confession before witnesses Kulwant Singh (P.W.2) and Paramjeet Singh (P.W.3). it was also disclosed that the two appellants were seen coming out of the sugarcane field of Sukhchain Singh at abaout 2.15 p.m. on 19-8-2000 by witness Amarjeet Singh (P.W.5) and another person and at that time both the appellants were looking nervous and perturbed. 16- As per the prosecution autopsy on the dead body of deceased Sukhvinder Kaur was conducted by Dr. H.L. Kushwaha (P.W.6) at 4.00 p.m. on 20-8-2000 and autopsy report ( Ext. Ka.5) was prepared. Medical Officer detected white fluid in anus and vagina and there was an abrasion around anus. Smear of fluid was prepared on sides and swabs in phials were taken. (They were later on sent to Forensic Science Lal Agra). Ant-mortem injuries detected were as under:- (1)Incised wound 4”(inch) at level of thyroid cartilage wedge shaped 2” wide, margins sharp, underneath structure cut on thyroid cartilage, neck muscles, both side carotid artery, internal jugular vein and nerves. (2)Tow incised wounds of size 1 cm x ½ cm x bone deep at medial end of both side of clavical. Margins sharp. (3)Two incised wounds on nipple of left breast at 11 O’ clock and 4 O’clock position, each of size 1” x ½”, margins sharp and everted. On exposure the two wounds went deep piercing left ventricle of heart which was empty. (4)Three stab injuries around umbilicus ( two left side are below umbilicus). On exposure there is blood in cavity and piercing injury under-neath went upto small intestine. (5) Incised wound on central part of left buttock 1 cm x ½ cm x 1 cm deep. ¼”x bone deep. Margins sharp, everted. (6) Incised wound on center of left buttock 1 cm x ½ cm x 1cm deep. Margins sharp, everted. (7) Multiple abrasions on lateral aspect of left thigh and upper left side of buttock. (8) A small abrasion on right upper eye-lid. 17- There was semi solid food material in the stomach and digested food material and gases in small and large intestine. 18- In the opinion of the Medical Officer death occurred due to haemorrhage and shock as a result of ante-mortem injuries, about 1 ½ day ago. 19- As stated above tow sessions trials were registered on the criminal cases being committed to the Sessions for trial. Sessions Trial No. 378/2000 pertain to the offences under sections 302,376,377,201 I.P.C. whereas Sessions Trial No. 379/2000 related to the offence under section 4/25 Arms Act against appellant Sewa Singh alone. These were consolidated and were decided by the learned Sessions Judge, Udham Singh Nagar per judgment dated 12.7.2002 as stated above. 20- Appellants pleaded not guilty and contended that they have been falsely implicated by the police. they gave out that they were picked up on 20-8-2000 and were kept confined by the police at the police station till 29-8-2000 and they were again medically examined on 30-8-2000. They admitted that they were medically examined on 20-8-2000 by P.W.9, Dr. S.H. Chauhan. 21- In order to prove its case the prosecution examined as many as 12 witnesses and relied upon the documents referred above besides Forensic Science Lab report ( Ext.Ka.23). Reference to witnesses except P.W.7, Smt. Rajvinder Kaur, real sister of the deceased and P.W.8, S.I. Ram Singh, the Head Moharir of the police station when the F.I.R. was lodged had already been made above. P.W.7 was examined as witnesses of motive and P.W.8 was examined to formally prove the check F.I.R. and G.D. reports etc. We shall however discuss the evidence of the witnesses in the later part of the judgment with reference to the circumstances relied upon against the appellants in this case. 22- At the conclusion of the trial, on appraisal of the evidence of the prosecution and after considering the circumstances the learned Session Judge found the prosecution case as alleged proved with regard to the offences referred above and convicted and sentenced the appellants as aforesaid per judgment and order dated 12-7-2002. 23- We have heard the learned counsel for both the parties and have carefully perused the evidence and material on record with the help of both of them and have also gone through the impugned judgment. 24- There is no direct evidence and the prosecution case solely rests on circumstantial evidence. The circumstances are:- (1)The two appellants made extra-judicial confession before Kulwant Singh (P.W.2) and Paramjeet Singh (P.W.3). (2)The appellants were seen coming out of the sugar cane field of Sukhchain Singh at about 2-2.15 p.m. on 19-8-2000. (3)The medical evidence as to the post mortem of the dead body of the victim and the injury reports of the appellants. (4)Recovery of blood and semen stained clothes form the house of appellant Sewa Singh on the disclosure statements of the appellants. (5) Forensic Science Lab report, Ext. Ka.23. (6) Recovery of blood-stained knife on the disclosure statement of appellant Sewa Singh. 25- Learned counsel for the appellants contended that the circumstantial evidence in the case has not been appraised by the learned Sessions Judge within the parameters settled by a catena of decisions of the Apex Court and neither circumstances are sufficient to complete a chain to prove the guilt of the appellants nor they exclude every possible hypothesis of innocence of the appellants; that the prosecution story is improbable and the prosecution had not given the true version of the incident before the learned Sessions Judge; that the evidence of extra-judicial confession does not prove that these were true and voluntary; that the deceased was not lastly seen alive in the company of the appellants; that the medical evidence fail to prove the commission of offence of rape or even the attempt as well as unnatural intercourse with the deceased; that the appellants were not taken into custody according to law on 20-8-2000 and the medical evidence in regard to their injuries has no relevance to the incident; that the report of the Forensic Science Lab is also not positive in the sense that the clothes have blood-stains of the same group as that of the deceased; that there is also no positive report about the swab and smear taken from the private part of the deceased and that the evidence of recovery of the knife has no relevance when it was not connected to injuries of victim by the evidence of medical officer. The learned counsel also referred to alleged infirmities in the investigation of the case and submitted that the conviction of the appellants can not legally be sustained. 26- The learned A.G.A. on the other hand has supported the findings of the learned Sessions Judge and submitted that no inference is warranted in the impugned judgment in view of the facts and circumstances of the case and particularly the fact that the complete chain of circumstances having been established by the prosecution it point out only towards the guilt of the appellants. 27- Having giving anxious thought on the matter in the light of the respective submissions of the learned counsel we are of the considered view that the criticism against the impugned judgment except the offence under section 377 I.P.C. is unwarranted and the arguments against it carry no weight in the peculiar facts and circumstances of the case. 28- We may at the out set state that law relating to circumstantial evidence was laid down by the Apex Court a far back as in the year 1952 in the matter of Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh; ( AIR 1952 SC 343), wherein it was observed thus: “ It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only wit the hypothesis of the guilt of the accused. Again. The circumstances should be a conclusive nature and tendency and they should be such as to exclude every hypothesis by the one proposed to be proved. In other words, there mst be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 29- A reference may also be made to a later decision in Sharad Birdhichand Sarda Vs. State of Maharashtra ; (AIR 1984 SC 1622). The learned counsel for the appellants also placed reliance on this decision. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution can not be cured by false defence or plea. The conditions precedent in the words of the Apex Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hyp0othesis except that the accused is guilty: (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 30- It is in the light of the above settled legal principles that we have to scrutinize the material on record while appreciating the evidence of the prosecution witnesses examined to prove the chain of circumstances in order to establish the guilt of the appellants. 31- One of the important circumstances highlighted to fasten the guilt on the appellants pertain to extra-judicial confession of the appellants made before P.W.2, Kulwant Singh and P.W.3 Paramjeet Singh. Their evidence was not relied upon by learned Sessions Judge on the ground that they have not cared to take the informant and the police in to confidence soon aftrer the confessions were made by the appellants. Before taking up the re-appraisal of the evidence we would like to refer the law on the point. In Narayan Singh and others Vs. State of Madhya Pradesh; (1985) 4 Supreme Court Cases 26 Their Lordships of the Supreme Court have cautioned that it is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak about such a confession. In a later decision in Gora Singh Vs. State of Rajasthan; (2001) 2 SCC 205 the Apex Court laid downs the principle relating to extra-judicial confession and when the same can be relied upon by the court it was laid down that- “It is settled position of law that extra-judicial confession, if true and voluntary it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it can not be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement.” 32- In a recent decision in State of Rajasthan Vs. Rajaram; 2003 AIR SCW 4097 Their Lordships of the Apex Court have observed that- “An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to the confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.” It was further observed that- “If the evidence relating to extra-judicial confession is credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration is matter of prudence and not an invariable rule of law.” 33- In the light of the above settled principles we would now analyse the evidence of the two witnesses of extra-judicial confession examined in the case. 34- P.W.2, Kulwant Singh testified that on 26-8-2000 at about 2.00 p.m. appellants Sewa Singh and Mukhtyar Singh came to him and told that they have made a blunder and police is after them. On being enquired they told him that on 19-8-2000 at about 1.30 p.m. On account of their lust for sexual pleasure, they caught hold of Km. Sukhvinder Kaur at Bhanga Canal and forcibly took her into sugar cane filed of Sukhchain Singh and they one after the other committed forcible rape on her. They also stated that after committing the rape they strangulated the neck of the said victim by her head scarf and also assaulted her by wielding knife to commit her murder. The incident had come to the notice of the police and they claimed that they were even picked up by the police on 20-8-2000 and were subjected to medical examination and thereafter let-off by the police. The appellants sought the help of the witness so that they may be protected from the clutches of the law enforcing machinery. The witness had then refused to come to the rescue of the appellants and even reprimanded for their unlawful act and commission of offence. 35- The witness was cross-examined with a view to show that he has no status in the society and, therefore, was not in a position to help the appellants and it can not be believed tha the appellants were so indiscreet in selecting such a person for their help. Merely because it is so, we do not find any substance in the argument of the learned counsel that the witness was not a man of status and could not be help to the appellants.. Any person of good character who is serious about his own occupation and do not participate in political or social activities may very well be chosen to seek help and in fact it all depends upon the psychological make up and approach of the person seeking help by making confession before such a person of good character instead of selecting a man having political links and attached to any social organization. The appellants are by their profession tillers of the land and therefore considering their own