HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha_= J. Criminal Appeal No. 1220 of 1994 Raghunath Gada Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration .Sti/m Sunil Kumar Sinha Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA ( l Sdl- C‘hief Jusu'ce Judge g‘ Sd/- sUNIL KUMAR SINHA/V/ 7/ Jude 7_\ ? / ‘S avgg/X Q/Q t Post for Judgment 11/02/2011 g \ \ + &@j HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gugta, c.J. & Hon’ble Shri Sunil Kumar SinlELJ. Criminal Appeal No. 1220 of 1994 APPELLANT Raghunath Gada S/o Mayaram Gada, aged 26 years, Resident o‘f Vyasnagar, P.S. Pamgarh, District— Bilaspur M.P. Versus The State of Madhya Pradesh (Now State of Chhattisgarh). RESPONDENT (Criminal Apgeal under Section 374 (2) of The Code of Criminal / ProcedlgL 1973) Appearance: Mr. Rajesh Jain, Counsel forthe appellant. ‘ Mr. Kishore Bhaduri, Additional Advocate General for the State. JUDGMENT (22.02.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 27‘“ of June, 1994 passed in Sessions Trial No. 110/1987 by the Second Additional Judge to the Court of Sessions Judge, Bilaspur. at (2) By the impugned judgment, the appellant has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- o (3) 2 Criminal Appeal No. 1220 of 1994 The facts, briefiy stated, are as under:- Deceased- Kirti Bai was aged about 11-12 years. She was studying in 6th Standard in Maharani Laxmi Bai School, Bilaspur. On 22.10.1986, as usual, she was present in the school. The allegations are that at about 9 a.m., the appellant went to her school and stated to the Head Mistress that the father of the deceased namely- Chatram (P.W.7) has met with an accident, therefore, he may be permitted to take the deceased with him. The deceased identified the appellant, therefore she was allowed by the school authorities to go with the appellant. Since, the deceased was residing with her maternal uncle- Rameshwar Prasad (P.W.4) and she did not return to his house in the evening and his daughter Nand Kishori (P.W.6) who was also studying in the same school returned all alone, Rameshwar Prasad (P.W.4) lodged a report in concerned police station, which was reduced into writing in Rajnamcha Sanha (Ex-P-5). On inquiry, the Head Mistress of the school gave information on 22.10.86 that a person came to their school and told that the father of the deceased had met with an accident, his leg has been imputed, he resides near the house of father of the deceased and the deceased also identified that she knows him, therefore she was allowed to go alo_ng with that person. Based on these facts, the First Information Report (Ex-P-27) was registered. The appellant- Raghunath has inimical relations with the father of the deceased.0n 23.10.86, three photographs of the appellant (framed in 1 photo frame) was seized by the Investigating s Conviction Sentence Under Section 363 l.P.C. R.l for seven years. Under Section 364 l.P.C. R.I for Ten years. Under Section 366 l.P.C. R.l for Ten years. Undei’Section 376 l.P.C. R.l for Life. Under Section 302 l.P.C. R.l for Life. 3 Criminal Appeal No. 1220 of 1994 Officer vide seizure memo/Panchnama Ex-P—24, from the possession of the wife of the appeiiant. Those photographs were shown to the Head Mistress Smt. C.K. Rai, Smt. J. Morya ,(teacher-P.W.8) and Peon- Ramswaroop @ Swaroop Ram. They immediately identified that the person, whose photograph Was shown to them was the person who took the deceased with him on 22.10.86. The appeiiant was taken into custody on 25.10.86. He gave a discovery statement under Section'27 of the Evidence Act (Ex-P-13) and the dead body i of the deceased was seized at his instance from the Bushes in Mopka—Khar vide recovery memo Ex-P-14. The discovery memo was also about the school bag of the deceased, which according to the appellant was thrown by him near Gandhi Chowk (a place in Bilaspur city). but it could not be recovered from that place. Infact, prior to the discovery, one Mohshin Khan (P.W.10) saw the school bag and finding the name of ' the deceased as also the name of her school in the articles in the bag, deposited the bag in the school. The inquest on the body of the deceased (Ex-P-15) was prepared and the dead body of the deceased was sent for post mortem to Government Hospital, Bilaspur vide memo Ex-P—1. The post (5 mortem examination was conducted by a team of three doctors including Dr. (Smt.) A. Jain (P.W.1). They found that the deceased was young girl aged about 12 years; pubic and auxiliary hairs were not developed; breast was not developed; and there were multiple abrasions on‘her body. The abrasions were on both the thighs, upper and lower side of both the knees, on both the legs, on ankle joint; on both the hands; on upper portion of chest and nipples; and on face. Clotted blood was present on nostrils and mouth. There fwas a circular ligature mark on the neck. A cloth was present around the neck. Hymen was ruptured and there was lacerated wound of about 1/2 inch on the p‘erineal tear. There were multiple abrasions all over the perineum and clotted blood was present s 4 Criminal Appeal No. 1220 of 1994 in vagina. The injuries were anti-mortem. She was wearing a white Terricote Blouse and a Blue Skirt (schooi uniform). The autopsy surgeons opined that the deceased was subjected to forcible sexuai intercourse prior to her death and the cause of death was asphyxia due to strangulation and it was homicidal in nature. The post mortem report is Ex—P-2 and the query report is Ex—P-3-A. On 30.10.86, a Test identification Parade (TIP) was conducted by Executive Magistrate- Ramanand Singh (P.W.2). In the Said TIP, the appellant was duly identified by Smt. J. Morya (P.W.8). The identification memo is Ex-P-4. The cloth (Gamcha) seized from the body of the deceased was also put for identification and was duly identified to be that of the appellant. The appellant was also sent for his medical examination on 26.10.86. He was examined by Dr. Dilip Kumar Katoliya (P.W.23). He noticed following injuries on the ‘ person ofthe appellant:- (i) Abrasion, 1x1/2x.15 c.m. on the left side of the cheek, black brownish. (ii) Abrasion, 1/2x1/4 c.m. on the lower side of left clevicular region. (iii) There were four other abrasions also on the left clevicular region. (iv) Abrasion, 1/2 c.m. on the lower portion of the right knee. (v) Abrasion, 1 c.m. on the right elbow, brownish in colour. He opined that the above injuries could be caused by hard and rough objects within durationof 22 to ?7 hours. The appellant was found fit to perform sexual intercourse. The injury report of appellant is Ex-P-31-A. After completion of investigation, the charge sheet was filed in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the matter to the concerned Sessions Court . from where, it was received on transfer by Second Additional Judge to the Court of Sessions Judge, Bilaspur, who K§ Xf 5 Criminal Agpeal No. 1220 of 1994 conducted the trial and convicted and sentenced the appellant as aforementioned. (4) There were no eye-witnesses to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which the Session Judge relied and has convicted the appellant:- 'i. The appellant was identified as the person who went to the school and took the deceased with him on the false pretext of the accident of father of the deceased; ii. The dead body of the deceased was recovered from the bushes in Mopka Khar at the instance of the appellant iii. There were many injuries on the body and the doctors opined that the deceased died homicidal death and she was subjected to forcible sexual intercourse prior to her death; iv. There were many injuries on the person of the appellant which he could not explain v. Sumaro (P W 19) had seen the appellant With a girl of tender age wearing school dress and vi. Gamcha, which was found around the neck of the deceased was identified to be that of the appellant. (5) Mr. Rakesh Jain, learned counsel appearing on behalf of the appellant, argued that there was no proper identification of the appellant, therefore, it was not proved that it was the appellant, who took the deceased with him on 22.10.86. He also assailed the recovery of the dead body at the instance of the appellant and argued that the appellant has been falsely implicated in this case. ’TT \ 6 Criminal Appeal No. 1220 of 1994 (6) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard Iearned counsel for the parties at Iength and have also perused the records of the session’s case. (8) ln Dhananjoy Chhatteriee —Vs- State of W.B. (1994) 2 SCC 22, the Supreme Court held “In a case based on circumstantial evidence, the circumstances from which the conclusion 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 guiltof 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. It needs no reminder that legally established circumstances and not merely indignation of the court can from the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." a 7 Criminal Appeal No. 1220 of 1994 (9) In Bodh Rai alias Bodha and others —Vs- State of Jammu and Kashmir, AIR 2002 SC 3164, the Supreme Court held that in a case based on circumstantial evidence,,the circumstances from which the conclusion of guilt is to be dawn have to be fully established and all the circumstances so established should be of conclusive nature and tendency. They must point‘ only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. This is what the Supreme Court’said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the appellant . has been established beyond a reasonable doubt. (10) Now we shall consider the circumstances held to be proved by the learned Session Judge. So far as the first circumstance regarding identification vof the appellant is concerned, Smt. J. Morya (P.W.8) has been examined in this regard. Smt. J. Morya (P.W.8) Was a teacher in the school in which the deceased was studying. She de‘pose‘d that on the fateful day at about 8:00-8:15'a.m., she was sitting in the staff room. A person was talking with the Head Mistress. He was a, talking to call some student . On this,the Head Mistress asked s 8 Criminal Agpeal No. 1220 of 1994 her about the deceased, on which she replied that she is a student of her class. Thereafter; the deceased was called along with her bag. Smt. J. Morya (P.W.8) asked the deceased ‘as to whether she knows that person?. When the deceased identified the appellant saying that she knows him, then she was allowed to go with the appeilant. Smt. J. Morya (P.W.8) identified the deceased in the Court, saying that he is the person who came to their school for taking the deceased. She also proved the proceeding of Test Identification Parade (TIP) conducted on 30.10.86. She had proved the contents of proceeding of (TIP) Ex—P-4. She had also proved the entries of the school register containing the name of the deceased showing that she was the student of their institution,and according to attendanCe register, on 22.10.86 she was marked present in the class room. Smt. J. Morya (P.W.8) was cross-examined by the defence, but the defence has not be able to elicit any such circumstance on which either her evidence may be discarded or it may be said that she was falsely implicating the appellant in the present crime. ln para 11 of the cross examination, she- categorically stated that she had identified the appellant, who is the person who took the deceased with him. t a (11) Ramanand Singh (P.W.2) is the Executive Magistrate, who conducted the (TIP). 'He has proved the proceedings of the . TIP and has deposed that the appellant was duly identified by 9 Criminal Aggeal No. 1220 of 1991 Smt. J. Morya (P.W.8) and another witness namely Smt. C.K. Rai. (12) Mr. Jain has argued that the photographs of the appeHant were shown to Smt. J. Morya (P.W.8), therefore, the entire proceeding of Tl_P vitiates, and it was not established that the appellant was duly identified by the above witness. We find no force in the argument of Mr. Jain. The case of the prosecution is that when it came to the notice of the police that a person saying him to be nearer to the family of the deceased had taken the deceased, they made an inquiry in the village and found that the appellant alone was missing from the village. With a view to further investigate the matter by showing photographs to the school authorities, the photographs of the appellant were seized by the police from the possession of the wife of the appellant and a panchnama/seizure memo was prepared. The Investigating Officer thereafter visited the school with the photographs of the appellant and shown the photographs to the school authorities including Smt. J. 'Morya (P.W.8), who immediately identified that the person whose photograph was shown had taken the deceased with him on 22.10.86. It is after this preliminary investigation, the appellant was taken into custody and his discovery statement was recorded and the dea'd body etc. were recovered at the instance of the appellant which were hidden in the bushes in Mopka Khara. After s 10 Criminal Appeal No. 1220 of 1994 completion of the above investigation, the Test identification Parade was conducted on 30.10.86, in which also Smt. J. Morya (P.W.8) identified the appeilant and she also identitjed him in the trial during the course of recording of her evidence. (13) ln Ronny —Vs- State of Maharashtra AIR 1998‘ S.C. 1251, the Supreme Court held that the identification of the accused by’a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in Court and that the absence of corroborative evidence by way of test identification parade would not be material. (14) ln George —Vs- State of Kerela AIR 199$ S.C. 1376, the Supreme Court further held that the identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.l. parade corroborates the same. ln other words, want of evidence of earlier identification in a T.l. parade does not affect the admissibility of the evidence of identification in Court. (15) ln Dastagir Sab and another —Vs- State of Karnataka (2004) 3 S.C.C. 106, the Supreme Court held that non-holding of T.l. parade would not by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the 11 Criminal Appeal No. 1220 of 1994 prosecution case; wouid depend upon the facts and circumstances of each case. (16) In case on hand, Smt. J. Morya (P.W.8) has identifiedsthe appellant on dock. ln the cross examination, nothing could be brought against the said evidence and the evidence of‘dock— identification is intact. The photographs were shown to this witness to 'get the clue in investigation which resulted into interrogation of the appellant, who gave his discovery statement and got the dead body recovered from the place where it was hidden. When the appellant was identified on dock and there was substantive evidence of identification of the appellant, the above Corroborative evidence would hardly be material. We have already held that the testimony of Smt. J. Morya (P.W.8) could not be assailed by the defence. in the above facts and circumstances, we are of the view that the learned Sessions Judge has rightly held that the appellant was duly identified as a person who went to the school and took the deceased with him on the false pretext of the accident of father of the deceased. (17) So far as the circumstance of recovery of the dead body at the instance of the appellant is concerned, it comes in the evidence that when on 25.10.86 the appellant was taken into custody and his memorandum statement (Ex—P43), under “Section 27 of the Eviden'ce Act, was recorded by the 12 Criminal Appeal No. 1220 of 1994 Investigating Officer, he disclosed that the dead body of the deceased was thrown by him in Mopka-Khar (Forest Area) and the school bag was aiso thrown at a particdlar place” This statement was recorded before Maharathi, Murarilal ‘ and Basant. Thereafter the dead body was found from the place indicated by the appellant and a seizure Panchnama (Ex-P-14) was prepared. Murarilal has been examined as P.W.12. He was village Sarpanch. He clearly deposed that the appellant disclosed to the police that he has kept the dead body of the deceased in Mopha-Khar (Forest Area) and has thrown the’ school bag at a place near the school. Nothing adverse could ‘ be brought in his cross examination. ln this manner, it was established that the dead body was hidden in the bushes in Mopka—Khar (Forest Area) and it was recovered at the instance of the appellant and it was incriminating circumstance against him. (18) According to the doctors, who perform the autopsy, the deceased was subjected to forcible sexual intercourse prior to her death and she has received multiple injuries and her death was homicidal. The appellant has also received multiple injuries which were proved by Dr. Dilip Kumar Katoliya (P.W.23). If we look into the injuries of the appellant, there were multiple abrasions on cheek, face; clevicular region, elbow & knee. These injuries appear to have been caused on account of s i 13 Criminal Appeal No. 1220 of 1994 f7§£;‘:. resistance by the deceased and were 'incriminating. The appellant did not offer any explanation to these injuries. (19) So far as the circumstance No. V & Vl are concernedi‘they may not be much incriminating against the appellant. Somaru (P.W.19) deposed that he had seen one school dressed girl of aged about 5-6 years in the company of the appellant. He had not deposed about the day, date etc, therefore, it was not ' established that on which date/day he had seen the girl in the company of the appellant. The identification of Gamcha would / also not be incriminating against the appellant, it was a common article and it was not established beyond all reasonable doubts that the said Gamcha, infact, was belonging to the appellant. (20) ln the above facts and circumstances, we find that the first four circumstances were fully established against the appellant. It was established that Kirthi Bai was studying in 6‘“ Standard in Maharani Laxmi Bai School, Bilaspur. She was present in her school on 22.10.86. The appellant went to her school and took her with him on the false pretext of the accident of her father. When the deceased did not return, a report of missing was lodged. Thereafter, the photographs of the appellant were seized and they were shown to the school authorities including Smt. J. Morya (P.W.8) who, identified the appellant by s 14 Criminal Apgeal No. 1220 of 1994 photographs. The appellant was taken into custody and his memorandum statement u/s 27 of the Evidence Act was recorded and the dead body of the deceased was recovered from the bushes in Mopka-Khar (Forest Area) at the instance of the appeilant. There were many injuries on the body. The death was homicidal. The deceased was subjected to forcible sexual intercourse prior to her death. Even the appellant also sustained many injuries, which were not explained by him. All above circumstances were of conclusive nature and tendency. They were pointing only towards the guilt of the appellant. The chain of the above circumstantial evidence was complete and the circumstances Were sufficient to hold the appellant guilty of the aforesaid offences. (21) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the appellant, therefore, is liable to be dismissed and is hereby dismissed. 4;; Sdl- . Sdll- j Chief Justice 1 SunilKumarSinha Judge l ’ ** ., Judge Rahul (Q.