l CF0000060738 Division Beépk (Friminal) EN T‘i§§ HIGH COURT (31" JUDICIATURE" AT JABALFUR ’ crimnal Appeal No. 2$ 2} cm 1997 ( Memoranc‘imn oji appeal under Sectitm 37¢ (2) Cr.i*,c:.) Marian Qé) Ma¥§éndra S311. 3/c-v-Komal Prasw Seal. agaa about 22 yaars. resident o£ Ra}ga.tnar,thana Balco Nagar.‘l‘ah$11 Korba aistmct Eilaspur. APPELLAE’I' I Véx‘stw : The state of Madhya Prgaésh¢hrongh tlm wistrict Magistrate. Korba District Bilaspur (MPh wsmnnam £9,1 io ‘1 gags ’ 37 n u 5 N, . W HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH VlsmN BENCH} Criminal Aggea! No.2521 of 1997 Mannu @ Mahendra Soni . Versus — The State of Madhya Pradesh (Now Chhattisgarh) And Criminal Ap_peal No.584 of 1998 ‘The State of Madhya Pradesh (Now Chhattsgarh) —Versu& Mannu @ Mahendra Soni JUDGMENT FOR CONSIDERATION / r- f 5di- L.c.BHAD0° 7— 09—2—2006 /’1 w/ HON’ELE MR. JUSTICE DHIRENDRA MISHRA I; \ > WTT " DHmENDRA MISHRA Judge ' 1° ~2—20‘05 I I POST FOR JUDGMENT 0N, 10‘“ FEBRUARY, 200a Sdl- ” L.C.BHADO Judge _ (omé-é’oo'e @ j O ”$0 HIGH COURT OF JUDICATURE AT BILASPUR {CHHATHSGARHI DIVISION BENCH*: - HON‘BLE SHRI L.C. BHADOO AND HON’BLE SHRI DHIRENDRA MISHRA, JJ. Criminal Aggeal No.2521 of 1997 Mannu @ Mahendra Som‘ - Versus - The State of Madhya Pradesh (Now Chhamsgarm And, Criminal Apgeal No.584 of 1998 The State of Madhya Pradesh (Now Chhattisgarh) -Versus— ‘- questioned the legality and correctness of the judgment of conwction and I order of sentence dated 17~9—97 passed by learned Addmonal Sessrons i . Judge Korba In ST No 171/96 whereby learned Addmonal Sesstons Judge after holding the accused/appellant guilty for commlSSIqn of offence thtder Sections 363 366 A 376 302 and 201 ofthe i P C sentenced him to undergo R l for 7 yeais & pay a fne of Rs 500/— in default of payment of f'ne to further undergo R i for 6 months under Section 363 ofthel P C ' to undergo R i for 7 years & pay a fne of Rs 500/- in default of payment i Mannu @ Mahendra Soni I Present: - iShriAwadII Tripathi, Advocate: Forthe appellant in Cr. A. I No2521l97‘ Shn U N S Deo Addl Pubhc Prosecutor {with Shn Akhll Mishra Panel Lawyer For the State/respondént 3 Shn U N S Deo Addi Public Prosecutor ‘ ‘ ‘wlth ShnAkhII Mlshra Panel Lawyer Forthe State/appellant in r Cr. A. No.584/98. I ‘Shri Awadll Tripathi, Advocate: For the respondent. ‘ I I I J u D G M E N T I (Delivered on [eye February, “006) The foIIovAng judgment ofthe Court was delivered by L C Bhadco J - 1. By Cnmmal Appeal No 2521 of 1997 the accused/anpellant has Z7 of fine to further undergo R.l. for 6 months under Se‘ction‘366-A of the I.P.C., to undergo R.l. for 10 years & pay a fine of Rs.5001~.,; in default of payment of fine to further undergo RJ. for 6 months under Section 376 of the l.P.C., to undergo R.l. for life under Section 302 ofthe l.PtC. and to undergo R.l. for 3 years & pay a fine of Rs.500/—, in defauit of payment of fine to further undergo‘RJ. for 6 months under Section 201 of the i,P.C.i The State Government has also preferred Criminai Appeal No.584/98 under Section 377 of the Cr.P.C‘ on the ground of inadequacy of the sehtence imposed upon the accused and looking to the facts and ‘cirjcumstanoes death sentence be i‘mposed upon the accused. Both these ap‘beals are relating to the same crime and arising out of same judgment therefore, they are being disposed of by this common judgment. i u , . The case of the_prosecution, in brief, is that in the evening of 26‘“ January 1996 minor girl Uttra Kumari aged about 8 years was playing with the children near the house. However, when she did not return to her house at the time of dinner i.e. 7 p.m., father of Uttra Kumari started searching Uttra Kumari When her whereabouts could not be known‘ Nanki father of girjl Uttra Kumari made a missing report on 27—1—96 at 7.45 a.m. at the outpost of police chowky Rajgamar to the effect that on 26‘“ J'anuaiy 1996 his daughter Uttra Kumari aged about 8 years was playing along with Atish Kumar Chouhan, aged about 8 years and Sampa Bai?Patel, aged about 7 years near the house. After some time, children left for their residence and Uttra Kumari was standing all alone near the Mahua bush. A‘n‘er watching the picture on television, he returned to his house at about 7 pm and Uttra Kumari was not at the residence to take dinner. The seiarch was made in the vicinity but her whereabouts could not be known. On receiving this report, missing report No.1/96 was entered in the Roljnamcha Sana. Again missing report Ex.—P/3 was given by‘Nanki father of Uttra Kumari on 27 1 96 in the police outpost Raigamar The Villagers and police started searching Uttra Kumari . Accused Mannu @ Mahendra Soni was in poiice custody in connection wtth Crime No 0196 under Sections 457 and 380 of the i PP and was brought in police outpost in the intervening night of 29””130‘“ Ja‘nuary 1996 On enquiry, he made a memorandum Ex P/15 on 30—1 96 at 9 a m tothe i effect that in the evening of 26-1 96 he took Uttra Kumari on aishop where he purchased biscuits and after giVing those biscuits to Uttra ifumari took ‘ her towards Pareba Darha rivulet. After committing rape on her, fearing that she would disciose this incident, he murdered her by pressing her *‘u. ‘ .- $‘2/ neck and threw the body of Uttra Kumari in the “Pareba Darrya” rivulet. He also threw one green colour shaw1 of Uttra Kumari in the rivq‘let. I can get the body and shawi recovered Based on this memorandum a search was made and shavw was recovered at about 11 a m from the ‘nvulet under Ex P/16 in the presence of Dllrp Kumar Patel and Radhe Shyam The body of Uttra Kumart was atso located and Panchanamas Ex *P/12 at 9 45 a n1 & Ex P/14 at 10 45 a m ofthe body of deceased Uttra Kumarl were prepared after gNIng notice Ex PI13 to the Panchas . While m the police custody the accused gave a memorandum Ex P117 on 30‘” January 1996 at about 1430 hours regarding his whrte pant and printed shirt which he was wearing at the time of commission of offence The accused disclosed that he can get the same recovered Based on this memorandum pant and shlrt were recovered from the re51dence of the i accused under Ex.—Pl18. As some button ofthe shrrt was foiund mlssmg, therefote, one red colour button along with thread was recovered at the instance of accuséd from the bank of rivulet under Ex.-P/19, The nail of the accused was taken into possession under Ex.—P/20. One slide from the vaginal part ofthe deceased and clothes of the deceased which were found on the body were taken into possession under Ex.-Pi21. The site plan Ex.-P/22 of the place of occurrence was prepared. The dead body was photographed and sent for postmortem examination to the Government 100 Bedded Hospital, Korba where Dr. R.K. Divya conducted the postmortem on the body of Uttra Kumari and prepared the postmortem report Ex.—P/43 in which he opined that the cause of death is asphyxia se}condary to smothering, fracture of nasal bone, laceration of lower lip right side present, ante-mortem and the death was homicidal in nature. Thie site plan Ex.~P/11 of the place of occurrence was also got prepared from Patwari Shri Babulal Maitri. l . The merg intimation Ex.—P/32 was given to the P.S. Balco and based on that merg intimation F.l.R. Ex.~P/31 was registered on 30-1-96. Based on another merg intimation Ex P/10 F l R Ex ~P/9 was registered without i number The recovered articles were sent for chemical examination to the Forensic Science Laboratory, Sagar from where reports Ett P/38 Ex- ; -, a W39 and Ex P/40 were received The injuries on the body ofthe accused were examined by Dr R K Divya on 31 1 96 and Injury report Ex P/44 was prepared Aner completion of investigation charge sheet was filed against the accused in the Court of Judicial Magistrate Korba who in turn «x. \ Z}; committed the case to the Sessions Judge, Bilaspur from were learned Additional Sessions‘Judge received the case on transfer. i Learned Additional Sessions Judge aher hearing counsei for? the parties and perusal of the record was of the opinion that prim'a faoie offences under Sections 363 366-A 376 302 and 201 ofthe i P C were made out against the accused therefore charges were framed read over and explained to the accused but he abjured the charges . The prosecution in order to estabiish the charges against the accused examined 15 Witnesses Statement of the accused was recorded under ‘ Section 313 of the Cr P C in which‘he denied the eVidence ofiprosecution land Circumstances appeaiing against him and pleaded innocence He also ‘pi’oduced two Witnesses in defence namely, DW-1 Kalyan Singh Thakur and DW:2 Kamal Prasad Banjare. Learned Additional Sessions Judge after hearing arguments of Additional Public Prosecutor and counsel for the accused conVIcted and sentenced the accused as mentioned in para—1 ofthis Judgment. 8. We have heard learned counsel for the parties. 9i The homicidal death of Uttra Kumari is not in dispute. 10.As ‘far as involvement of the accused/appellant in crime in question is concerned, there is no direct evidence in this matter and the prosecution case rests on the circumstantial evidence. lt is settled law that in a case based on circumstantial evidence, the circumstances from which the con‘clusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only With the hypothesis of the guilt of the accused Those Circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for, the belief consistent with the innocence of the accused The Circumstances established means legally established Circumstances and not merely indignation ofthe court can form the basis of conVIction and the more serious the crime the greater should be the care taken to scrutinize ethe eVidence lest suspICIon takes the place of proof. Since the trial Court has convicted the accused under Sections 363, 366—A, 376, 3‘02 and 201 of the l.P.C. based on the circumstantial evidence and sentenced him to various sentences as mentioned in para—1 ofthis judgment and the State \\ Government has also filed criminal appeal under Sectionii377 of the i i \i i i i i (Jl ‘ gv‘ Cr.P.C. for enhancement of the sentence to capital punishment on the ground of inadequacy ofthe sentence imposed by the trial Cetin, we have to consider the circumstances carefully bearing the principles noticed above in mind 11 ln order to connect the accused With the crime in question the prosecution has tried to establish followmg circumstances against the accused ~ (i) The accused was seen in the company of Uttra ; Kumari when she was last seen alive ‘ (ii) The dead body and shawl of Uttra Kumari were ‘ recovered at the instance of the accused as per l the Information given by‘him under Section 27 of the EVidence Act (iii) The pant shirt and missmg button of shiit of the i ‘V accused were recovered at the instance of accused and , Blood was found on the naii of the accused ’and human semen was found on the slide which was l l taken from the vagina ofthe deceased -l t 12 Now we shall pioceed to scrutinize and examine the eVidence of the prosecution whether the prosecution has been able to establish the crime against the accused based on the circumstances mentioned above bearing in mind the prinCiples mentioned above for recording conViction based on the Circumstantial eVidence (i) Last seen alive ln order to prove this Circumstance the prosecution has examined two Witnesses namely PW-‘i' Atish Kumar aged about 7 years and PW 8 Ram Gopal ln order to conVict the accused based on the lastl seen the Hon ble Apex Court in the matter of BODHRAJ ALIAS BODHA AND OTHERS V STATE OF JAMMU AND KASHMIR reported in (2002) 8 SCC 45, held that. ‘the theory of last seen comes into play where the time gap between the pomt of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that posSibility of any person other than the accused being the authoi ofthe crime becomes imposSible " The Court further held that ‘lt would be hazardous to come to a concluSion of gwlt in cases where there is no other positive eVidence to conclude that the accused and the deceased were last seen together.” Again, in the matter of Subhash Chand v. State of R’ajasthan reported in {2002) 1 Supreme CoUrt Cases 702 the Hon'ble Apex Court held that: ‘ ....... To constitute evidence of last seen together, the evidence must deflnitely’permit an inference being drawn that the victim and the accused were seen together af a point of time in close proximity with the time and date of commission of crime. . In the matter of State of Karnataka Vs. M.V. Mahesh reported in (2003) 3 Su‘preme Court Cases 353 the Hon'ble Apex Court held that: ........ Mereiy being seen last together is noti enough. What has to be established in a easel of this nature is defnite evidence to indicatei that Beena had been done to death of whichl the respondent Is or must be aware as atsoi proxtmate to the time of being last seen‘ l : together ....... " ln view of the above law laid down by the Hon’ble Apex (iiouit before com/toting an accused based on the last seen together theory, the Court Is required to ascertain from the legal clinching eVidence that the time-gap between the point of time when the deceased and the accused were seen last together alive and the death of deceased must be so close and proximate that an inference regarding the guilt of accused can be drawn and there is no possibility of coming any third person in’betWeen the last seen together and death of the deceased. There must be unerringly clinching legal evidence that should point towards the involvement of the accused in commission of murder. Further, it is unsafe to convict a person i based on the last seen theory unless the last seen coupled with other circiumstances is indicator of the fact that the accused is the author ofthe crime i 13.Based on the above settled law laid down by the Hon‘ble Apex Court in the;above judgments, if we examine the evidence of PW-7 Atish Kumar and PW-8 Ram Gopal, PW-8 Ram Gopal is the person to whose shop, on thelfateful day, the accused is said to have taken deceased Uttra Kumari t and Atish Kumar for giving them biscuits after purchasing the same from Ram Gopals shop He has stated that on 26 January 1996 at about I pm accused Mannu @ Mahendra came to his shop and purchased biscuits Theie were 2-3 boys With him, out ofwhich one was Atish Kumar to whom l know. Whether any girl was with the accused or not he does l not imow as he was not able to see due to the darkness. As the boy came in front of him that is why he was able to identify him. The accused purchased one packet of biscuit costing Rs. 2.50/- and thereafter he left. "On 27‘” January 1996 he came to know about the death of: daughter of *‘v. 5%. I\ ‘ Nanki From the above evidence it cannot be inferred thht when the accused went to purchase biscuits from the shop of Ram Gopal deceased v Uttra Kuman was With him as such the ewdence of PW~8 Ram Gopal rs of no assistance and help to the prosecution for provmg the circumstance that Uttra Kumari was seen last with the accused when she was alive. 1 4. PW-t Nanki, father of the deceased, in para-11 of his evidence has l stated that on 26m January 1996 one shop keeper ofthe shop which is existing in their vicinity had told him that your child and 3 4 more children were playing Accused Mannu was distributing biscuits to them in front of his shop after purchasing from him Where Mannu had gone he does not know The police people also enquired from the Shopwala Why this fact was not mentioned in the report Ex.-P/2 by Nanki which was lodged in the mori‘h'n‘g of 27‘“ January 1996 itself creates doubt about the last seen theory ofthe deceased with the accused when she‘was alive. 15 Now coming to the evrdence of PW—7 Atrsh Kumar who was aged about 7 years at the time of grvrng his evrdence he has stated in hrs evrdence that last year he was studyingrn class-1. ln the month of January he was playing with Dharmeen @ Uttra Kumari at his residence. :He and she were playing and no other person was there, at that time,-acctrsed Mannu came and took him and Dharmeen @ Uttra Kumari to a shop where he t ‘ purchased biscuits. out ofwhich he gave 5 biscuits to him andie biscuits to Dharmeen @ Uttra Kumari and thereafter he went to his residence He had not met wrth Dharmeen @ Uttra Kumari Where Dharmeen @ Uttra Kumari went he does not know He also does not know where accused Malnnu went ln the cross examination this Witness has statdd that in the night when the incident happened, Nanki had not come to his house to enquire about the whereabouts of Uttra Kumari However next day morning Dilip and 3 4 persons along iMth Nankr also came Orr enquiry by them he informed them that when he went to the house hanneen @g Uttra Kumari was standing under the Mahua bush and same fact he disclosed to the police lt is correct to say that Drlip asked him to tell biscuit story It is also true that on being told by him he gave a statement to the police lt rs correct that his father and Drlip are friends in this regard rt rs relevant to look at the law lard down by Apex Co rt regarding placrng reliance on the evrdence of a child Witness The Hon'ble Apex Court in the matter of ARBIND SINGH V $TATE OF BIHA reported in 1995 Supp (4) Supreme Court Cases 416 held that. Mi 37 “Child witness is prone to tutoring and Hence: court should look for corroboration particularly} when the evidence betrays traces oftutoring.” i in that case PW—2 Poonam Kumari, who was the daughter of the deceased and appellant. was the child witness and the Court after eerutinizing the evidence reached to the conclusion that there were imdrovements in the etatement of the child witness, as in her first statement she did not say that her mother was hanged. Subsequently, she said that her mother was hanged by electric wire, she later said that she‘ was hanged with the help of a jute string and in her statement recorded under Section 164 of Cn.,P.C. she stated that her father had thrdm a jute string around the neck of her mother and killed her. Therefore, the Court reached to the conclusion that the child witness was notEC‘gnsistent inher version and there was tutoring on certain aspects. Therefore, the Court held that implicit faith and reliancecannsot be placed on her testimony since it was not corroborated by any inde‘pendent and reliable evidence. Child witness is prone to tutoring and hence the Court should look for corroboration particularly when the evidence portrays traces of tutoring. ln another decision, in the matter of PANCHHI AND OTHERS V. STATE OF U.P. reported in AIR 1998 Supreme: Court 2726 the Hon'ble Apex Court held that: “lt cannot be said that the evidence of a child ‘- witness would always stand irretrievably stigmatized. lt is not the law that if a witnessis r a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a j child witness must be evaluated more carefully ‘ and with greater circumspection because a ‘ child is susceptible to be swayed by what l others tell them and thus a child witness is an j i easy prey to tutoring.” Y The.Hon'ble Apex Court, in another decision, in thegrma‘tter of SURYANARAYANA vs. STATE OF KARNATAKA reported in 2001 (1) Crimes 99 (so) held that: ’ “Evidence of a child cannot be rejected per se, ‘ but the court as a rule of prudence, is required ‘ to consider such evidence \M'th close scrutiny " and only on being convinced about the quality , of statements and its reliability, base conviction , by accepting the statement of the child witness. ‘1 The evidence of child cannot be discardedjonly _ ‘on the ground of her/his being Teen age. v’The E evidence of a child witness would require the l court to scrutinize the evidence with care and \/ r €%3 caution. When the witness is shown to have! stood the test of cross—examination and there? is no infirmity in the evidence, the prosecutioni can rightly claim a conviction based upon thei said testimony alone. Corroboration ofa testimony of a child Witness is not a rule but at measure of caution and prudence Some, discrepancies in the statement of a child witness ‘cannot be made the ba5is for, discarding the testimony.” . i l T xerefore, before placing reliance on the evidence of a child witness the Court has to scrutinize the evidence of a child very carefully and with circumspection as the children are prone to tutoring Based on the above principle if we look into the evidence of PW—7 Atish Kumai’ in the first instance this Witness has not stated that the accused took Dharmeen @ Uttra’ Kumari along With him after prowding the biscuits. Onithe contrary, i t this witness has stated that he returned to his house and Dharmeen @ Uttra Kymari wasstanding under the Mahua bush. He‘has not stated that the accused was also standing there. Moreover, in para-6 ofihis evidence, he has stated that whatever Dillp asked him he informed the police. Nanki, father of the deceased, in the morning of 27m Januaiy 1996 made a missing report Ex.—P/2 at the police outpost Rajgamar and in that report Nanki very clearly mentioned that on 26-1-96 Uttra Kumari along with this witness namely Atish Kumar and one Sampa Bai Patel aged about 7 years were playing near the residence. After some time children len for their residence and Uttra Kumari was standing ail alone near the bush. When Nanki mentioned this fact in the report Ext-P/2 that on the fateful day Uttra Kumari was playing with Atish Kumar PW~7, they left to their residence, thereafter she was seen standing alt aione under the bush and enquires were made from PW-7 Atish Kumar then why this fact of putchasing of biscuits by the accused from the shop of PW-8 Ram Gopal and providing the same to Uttra Kumari and PW-7 Atish Kumar was not mentioned in this report. This fact creates a doubt about the reliability of eVIdence of PW—7 Atish Kumar speCIally With reference to paras-6 and 7 of the eVidence in which he has stated that he disclosed biscUits thing to Diiip Whatever statement he made to the police was made as told by Diiip. in para 5 of his eVidence he has also stated that Dilip Nanki and 3- m persons came to