^aKte^ ^' f.^^ HIGH COURT OF CHHATTESSARH AT BILASPUR Crimjnal Appeal No.716 of 1993 &IVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA <& HON'BLE MR.R.L.JHANWAR, JJ. Yashwant Kumar Kalar' Versus State of M.P. (now Chhattisgarh) JU&GMENT FOR CONSIDERATION Sd/- - T.P.Sharma : Judge .0 I^S'Sil Hon'ble Mr.R.L.Jhanwar, J. _-£l^- Sd/- R.L. Jhanwar Judge Post for Judgmeiit on : ^^J5/4/2Q1^ Sd/- JU t> 6 E 19/4/2010 .^ssase^^ ff^\- "ViS! '^'^ciis, ,/'^<'': HI6H COURT OF CHHATTESGARH AT BILA_SPUR Criminal Appeai No.716 of 1993 DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.L.JHANWAR, JJ. APPELLANT RESPON&ENT Yashwant Kumar Kalar, s/o Barhku Kalar, aged about 22 years, residence of village Marhwa, Police Station Bilaigarh District Raipur. Versus State of M.P., through 5.0. Bilaigarh, Oistrict Raipur. (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- AArsJndira Tripathi, counsel for the appellant. Mr.Ashish Shukla, Government Advocate for the State/respondent. JU&6MENT (Delivered on 19th April, 2010) The judgment of the Court was delivered by T.P.5harma, J.;- 1. Challenge in this appeal is to the judgment of conviction <& order of sentence dated 8.6.1993 passed by the Additional Sessions Judge, Baloda Bazaar, in Sessions Case No.315/91, whereby & whereunder learned Additional Sessions Judge after- holding the appellant guilty for commission of rape and culpable homicide amounting to murder of (Soutarhinbai convicted the appellant under Sections 376 & 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and imprisonment for life. 2. Conviction is impugned on the ground that without there being any credible and clinching evidence and inadmissible evidence of &ukalabai (PW-2) and /• :• ^yy^.. •7,-^. '-- ;-' -•''. \^- .^/•'' :'^'^. '^*:,: ;^.-y ^ Sotilal (PW-3), the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that 2.3.1991 (Soutarhinbai (since deceased) went along with Dukalabai (PW-2) out of her house for collecting cow-dung, the appellant wos present near the place of incident viz., Chouhabahra Nala, the appellant taking the benefit of her loneliness committed forcefully intercourse with her, rounded her sari in her neck and pressed the neck and caused her death. The appellant dragged dead body of Goutarhinbai and has thrown the same in the canal. Dead body was floating in the water. Dead body was noticed by the villagers. Bedul, husband of the deceased has lodged merg intimation vide Ex.P/10. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses, inquest over the dead body of (Soutarhinbai was prepared vide Ex.P/1. Drag mark was found near the place of incident. One bamboo's basket (Tokri) with dun9 was seized from the spot vide Ex.P/2. Chappals were seized near the place of incident vide Ex.P/3. Spot map was prepared by the investigating officer vide Exs.P/6 <& P/ll. Ciuring the course of inquiry of merg, Dukalabai (PW-2) and Sotilal (PW-3) were interrogated and dehati nalishi was recorded vide Ex.P/12. On the basis of dehati nalishi, F.I.R. was registered vide Ex.P/12A. Clothes and slides were seized vide Ex.P/17. Dead body of the deceased was sent for autopsy to Primary Health Centre, Bilaigarh vide Ex.P/7/\. Dr.Chandrashekhar Patel (PW-7) conducted autopsy vide Ex.P/7 and found following symptoms and injuries; i) Froth blood flow was from nostrils, tongue protruded and beaten by teeth, pupils we.re. dilated and redness, fiscal matter was found in anal aperture and private part were diluted. Mud was found over the body; ii) One lacerated wound of 3.5 cm. x 2.5 cm. over upper part of left eyebrow; iii) Abrasion of 2.5 cm. x 2 cm. over right elbow joint; iv) Abrasion of 1.5 cm. x1cm. and 2 cm. x 1 cm. over back; '* ^ ..^, i / /' /u' ^—f v) Two abrasions of |- cm. x .5 cm. and .5 cm. x i cm. over upper part of neck just below the chin; vi) Abrasion of 2 cm. x ^ cm. over back; vii) Abrasion of 2 cm. x 1 i- cm. over right knee; viii) Abrasion of 1 |- cm. over ri9ht cheek; ix) Abrasion with laceration of 1 i- cm. x .5 cm. over upper part of vagina; On internal examination, semen like fluid was found inside the private part of the deceased which was taken out and sealed. Fracture of 9 and 10t left ribs and rapture of spleen was found. Cause of death was asphyxia as a result of throttling and she was subjected to intercourse before her death. Query was made relating to commission of rape vide Ex.P/SA. The doctor has answered that the deceased was subjected to intercourse at the time of incident. During the course of investigation, the accused was interrogated, he was taken into custody, he made disclosure statement of his clothes vide Ex.P/4. Clothes of the accused were recovered at his instance vide Ex.P/5. Patwari prepared spot map vide Ex.P/13. The accused was sent for medical examination. Dr.Chandrashekhar Patel (PW-7) examined the accused vide Ex.P/9. One abrasion of 1 i- cm. x 1 cm. was found over his left hand and one abrasion of 1 cm. x .5 cm. over his left knee. He was capable to commit intercourse. Seized articles were sent for chemical examination. Presence of semen and human spermatozoa was confirmed in vaginal slide of the deceased, underwear of the appellant, blood on the clothes of the deceased and vaginal slide of the deceased. 4. Statements of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1973 (in short 'the Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Baloda Bazaar, who in turn committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge, Baloda Bazaar" received the case on transfer for trial. ^ y 5. In order to prove the guilty of the accused/appellants, the prosecution has examined as many as 10 witnesses. Statement of the accused/appellant WGS recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication on the ground of enmity in the crime in question. 6. After affronting an opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the appellant as afor'ementioned. 7. Vl/e have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 8. Learned counsel for the appellants vehemently argued that although this is unfortunate murder after committing rape of deceased Goutarhinbai, but only on account of unfortunate rape and murder, liability could not be fastened upon the appellant without any admissible and legal evidence. In case of charge of rape and murder, heavy duty is cast upon the prosecution for strict proof of the offence beyond all shadow of doubt. In the present case, as per evidence of the prosecution witnesses, rape and murder of deceased Soutarhinbai is not substantially disputed. The prosecution has tried to connect the appellant in the crime in question on the basis of evidence of Dukalabai (PW-2) and Gotilal (PW-3) who have claimed themselves as eyewitnesses, their evidence are contradictory to their statements recorded under Section 161 of the Code and even their evidence are contradictory to the evidence of each other. Dukalabai (PW-2) has clear'ly deposed in her evidence that firstly she saw the incident, then Gotilal (PW-3) came, she took basket containing cattle dung and went for her house, but as per evidence of Sotilal (PW-3) after leaving the place of incident by Dukalabai (PW-2) he has seen the incident committed by the appellant. This evidence clearly shows that there were two incidents of two rape and Two murder of one person by the appellant which is not legally possible. They have concealed the fact for long time, even being asked by •^•s.- / ,' Y ',' i the relatives of the deceased and the police, but when the police took them to the police station, then they have stated the aforesaid fact after long delay. This conduct of the witnesses is suspicious and is not worth of credence for convicting the appellant for commission of heinous offence of rape and murder. Suspicion, however strong it may be, cannot take the place of legalproof. 9. Learned counsel placed reliance in the matter of Shankar © Tunu v. State of C.6. and other connected matters in which this Court has held that late disclosure of the fact of commission of mur-der by the witnesses and non-disclosure of the fact at the time of inquest, although present, creates doubt on the credibility of the witnesses. Learned counsel further placec' reliance in the matter of Ramkeshra ©Rameshwar v. State of C.6. and other connected matters in which this Court has held that on the basis of statement of the sole eyewitness whose presence is doubtful at the time of occurrence, conviction of the accused is not proper. Learned counsel also placed reliance in the matter of Mahmood v. State of Uttar Pradesh in which the Apex Court has held that in a case dependent wholly on circumstantial evidence, the Court before recording a conviction on the basis therefore must be firmly satisfied- (a) that the circumstances from which the inference of guilt is to be drawn, have been futly established by unimpeachable evidence beyond a shadow of doubt; (b)that the circumstances are of a deter-minative tendency unerringly pointing towards the guilt of the accused; and (c) that the circumstances, taken collectiveiy, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. '2008 (1) C.6.L.J. 210 (DB) 22008 (3) C.6.L.J. 86 (DB) 3AIR 1976 SC 69 :-s. / i < ,1 Learned counsel placed reliance in the matter of Chittu alias Hemant & others v. State of M.P. (Now C.6.) in which this Court has held that conflict between the evidence of sole eyewitness and medical evidence, delayed identification, omission of name of the accused, though knew the eyewitness, makes the case doubtful. Learned counsel further placed reliance in the matter of Muluwa S/o Binda and others v. The State of Madhya Pradesh in which the Apex Court has held that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. 10.0n the other hand, learned State counsel supported the judgment impugned and argued that though There are some discrepancies in the evidence of Dukalabai (PW-2) and Sotilal (PW-3), but they are rustic villagers residing for away from the city area, therefore, discrepancies, omissions and contractions are natural. They have substantially corroborated the case of the prosecution. The evidence of Dukalabai (PW-2) and fiotilal (PW-3) have been well corroborated by the medical evidence. The offence took place on 2.3.1991 and merg was recorded on the same day at 8.15 p.m. at night against the unknown person. On second day i.e. 3.3.1991 named dehati nalishi was recorded. Statements of Dukalabai (PW-2) and Sotilal (PW-3) Exs.D/2 and 0/3 have been recorded on 3.3.1991. Their statements have been recorded within time and name of the appellant finds place in the dehati nalishi and F.I.R. recorded on the basis of dehati nalishi. Even otherwise the defence has not asked any question relating to delay in recorded their statements to the investigating officer who has recorded their statements. Learned counsel further argued that the Court below has rightly convicted and sentenced the appellant as aforementioned. 4 2005 (2) C.6.L.J. 67 5AIR 1976 SC 989 ^. VtWscs-Si 11. Learned counsel placed reliance in the matter of State of U.P. v. Satish in which the Apex Court has held that delay in examination of the witnesses by investigating officer does not ipso facto make prosecution version suspected. The defence is required to ask the question to investi9ating officer for such delay and in the absence of any such question, any delay in recording the statement of the witnesses is not fatal to the prosecution. Learned counsel further placed reliance in the matter of Vijay Kumar Arora v. State (Government of NCT of belhi) in which the Apex Court has held that delay in recording the statement of the witnesses is not fatal to the prosecution unless the investigating officer is asked the question of delay in recording the statement and explanation is sought from as to why their statements were recorded late. 12. In order to appreciate the argument advanced on behalf of the parties, we have examined the material available on record. In the present case, homicidal death as a result of ante-mortem fatal injuries of the deceased has not been substantially disputed by the appellant, on the other hand, otherwise also established by the evidence of Dr.Chandrashekhar Patel (PW-7) and autopsy report Ex.P/7 which reveals that eight injuries were found over the body of the deceased including fracture of leff 9 and 10 ribs, rupture of spleen and the evidence of throttling of neck and death was homicidal in nature. The prosecution has also adduced evidence of commission of rape before death of the deceased. Ex.P/1 inquest report shows the injury over private part of the deceased. He has opined that sexual intercourse had been committed upon the deceased before her death. Slide was sent for chemical examination vide Ex.P/14. Presence of semen and spermatozoa has been confirmed vide Ex.P/15 by Forensic Science Laboratory. The deceased was married woman of 25 years. In case of intercourse with her with her consent there was no occasion for any abrasion or laceration upon her private part and injuries upon her other part of the bodies. Injury of her private part and upon other parts and presence 'AIR 2005 SC 1000 7(2010) 2 SCC 353 .;>?'-'• y" if y'^XT*F. /'' ? i'- ' ^i'--' "I / ^^' .K1 :'-€.•!/'' -riSi^^"" of semen and spermatozoa in her vagina clearly proves that she has been subjected to rape before her death. 13.As regards the complicity of the appellant in the crime in question, conviction is substantially based on the evidence of Dukalabai (PW-2) and Gotilal (PW-3), alleged eyewitnesses. Dukalabai (PW-2) has deposed in her evidence that on the date of incident she along with deceased Soutar'hinbai went for collecting dung, they were collecting dung separately. After sometime she saw that deceased Soutarhinbai was lying in pit in canal and the appellant had inserted her penis in the vagina of the deceased. When deceased Goutarhinbai get up, then the appellant rounded sari of (Soutarhinbai on her neck and tied, then deceased Soutarhinbai fell down in the land, the appellant dragged Soutarhinbai towards canal at that time,the accused saw her then he rushed towards her and threat her that if she will narrate the incident to anybody then he will kill her, then she came on the top of canal where she had collected dung in basket. Sotilal came and with the help of Gotilal she took the basket with dung and went to her. house. Oefence has cross-examined this witness at length. In para 11 of her cross-examination she has admitted that the incident took place on Saturday and on second day police came and they took her and (Sotilal to police station Bilaigarh where they reached between 11 to 12 at noon and again came back at 3 p.m. On second day, again police came and recorded her statement and she narrated the incident. In para 15 she has stated that at the time of collecting dung when she saw Gautarhinbai at that time, the appellant was committing intercourse with her. In para 16, she has deposed that she has not seen that the appellant and the deceased were scuffling, but she has seen that the appellant was inserting his male organ in private part of the deceased. According to para 17 of her cross- examination, she has also seen that at the time of commission of the offence of intercourse by The appellant, sari was thrust in the mouth of the deceased and was also upon the neck of the deceased. She has also stated in para 20 of her cross-examination that she has stated the poiice that the ^saS ^' -&.•< ^**>h 4 -4 appellant rushed towards her and has threatened, but this fact does not find place in her previous statement Ex.D/2. 14.In para 23, she has admitted that she had not talked with Sotilal. Kishno was also present there. In para 24, she has admitted that at the time of keeping basket with her head, the appellant rushed towards her and asked about his buffalos which she stated that she has not seen. As per paras 26, 27 and 28 of her evidence, even being asked she has not disclosed the fact that she had seen the incident and she has 9iven false explanation, but in para 34 she has stated that she was under threat, therefore, firstly she has not disclosed this fact. 15. Gotilal (PW-3) has deposed in his evidence that at that time on the request of Dukalabai (PW-2) he helped her for keeping basket in her head, then Dukalabai went towards her house, then he went for collecting goats. At the time of collecting goats he saw the incident that the appellant was dragging one woman by tying her neck by sari and he put her in the pit filled with water. While he was going towards his house along with goats, then the appellant came to him and asked that whether he has seen his buffalos which he told that his buffalos were grazing near canal. He has also deposed that when he was informed by his father that somebody has killed his sister-in-law (Bhabhi) Gautarhinbai, then he told that he has seen the incident and the appellant has dragged one woman, but he has not identified the woman whether she was Gautarhinbai or not. In his cross-examination he has admitted the presence of Kishno. He has also admitted that except relating to putting of basket over the head of Dukalabai, he has not talked with Dukalabai. He has also admitted that the police came to his house, police took him, Dukalabai and Kishnu to police station and again they came back but police did not assault him. In para 16 he has admitted that on second day between 7 to 8 a.m. he has disclosed the incident. 16. Definitely there are some omissions and contradictions in the evidence of the aforesaid witnesses. Sotilal (PW-3) has specifically deposed that when :^^(?£.... . -.-•"»*'%. .'' y. ^ 'i 10 he came to his house, his father informed him that somebody has murdered of his sister-in-law Sautarhinbai then he disclosed the incident.to him. Firstly, the police interrogated him, then he told the incident to him. Ex.D/3 is recorded by the police on 3.3.1991 i.e. on the date of investigation when the police has registered dehati nalishi. Dehati nalishi Ex.P/12 also reveals that Dukalabai and Gotilal have seen the incident. Dukalabai has not disclosed the fact on the same day even being asked by the relatives of the deceased which she has explained that she was under threat given by the accused although that has not been corroborated by her previous statement Ex.D/2, but Ex.D/2 and Para 24 of her cross-examination which clearly reveals that while she was going to her house along with dun9 in basket, then the appellant rushed towards her and asked about his buffalos which she replied that she has not seen which shows that this witness has seen the incident, but when the appellant rushed towards her then she afraid of, therefore, she had not disclosed the fact that she has seen the incident for sometime, but finally during the course of investigating on second day she has disclosed the fact to the police which the police recorded on 3.3.1991 vide Ex.D/2. 17. Defence has much stressed on the point of conflict and contradiction between the evidence of Dukalabai (PW-2) and Sotilal (PW-3) and submitted that if the evidence of both the persons is considered, then there can be two incidents which they have seen separately. 18. We have minutely examined the evidence of both the witnesses. Dukalabai (PW-2) has deposed in her evidence that when she saw the deceased and accused at that time, the deceased was lying in the land ad the accused was inserting his male organ in private part of the deceased (Sautarhinbai and he committed intercourse with her, at that time sari of Sautarhinbai was thr-ust in the mouth of the deceased and was also upon her neck. Thereafter, when she get up then, the appellant tied sari on her neck and drag9ed towards canal, meanwhile the appellant rushed towards her and threatened her, but the fact relating to threat given by the appellant is not ••:"<•'.''.\: /•''/ ! (/ 11 corroborated by her previous statement Ex.D/2, but para 24 of her evidence and Ex.t)/2 reveals that when the appellant rushed towards her while he was going towards her house with basket containing dung then she afraid of. The evidence of Sotilal (PW-3) reveals that he has not seen the commission of intercourse with the deceased by the appellant, but he has seen the incident while the appellant was dragging woman towards canal. The evidence of both the witnesses clearly shows that they have seen different part of the incident. First part of the incident was seen by Dukalabai and Gotilal (PW-3) has second part of the incident. There is no conflict or contradiction between the evidence of both the witnesses. 19. Assistant Sub Inspector Arun Kumar Sakhariya (PW-9) has conducted investigation. He has deposed in paras 13 to 14 of the evidence that he has recorded statement of Dukalabai and Gotilal vide Exs.D/2 and D/3 according to statement given by them. Defence has cross-examined these witnesses in detail. In para 19, he has admitted that on 3.3.91 at about 8.30 a.m. he reached to the village and prepared inquest and sent dead body for autopsy. He has specifically admitted in his evidence that at the time of sending dead body, he did not know that who has committed murder of Sautarhinbai. He has admitted in para 26 of his cross-examination that he has recorded dehati nalishi on the basis of statement of the witnesses. In para 29, he has admitted that on 3.3.91 at about 9 p.m. he came to know that the appellant has committed murder of (Sautarhinbai, then he inquired about the appellant, he was not present in the village. On 5.3.1991 between 11 to 12 at noon, Sub Inspector J.P.Dubey caught hold the appellant who was hidden himself near village Madwa. Defence has cross-examined this witness in detail, but has not asked anything that why he has recorded the statement of Dukalabai (PW-2) and (Sotilal (PW-3) after considerable delay. Their statements were recorded on 3.3.91, second day of the incident. During the course of inquiry of merg and on the basis of their statements, dehati nalishi Ex.P/12 was recorded. There is no delay in recording the statements of Dukalabai (PW-2) and Gotilal (PW-3). Even otherwise, /;f C 12 defence has not asked anything relating to delay in recorded the statements of these witnesses. 20.As held by this Court in the matter of Shankar ©Tunu (supra), witness was disbelieved on the 9round of delay of 5 days in recording the statement, but in the present case, the incident was informed on 2.3.91 at about 8.15 p.m. and statements of the witnesses were recorded on the second day within 24 hours at the time of registering dehati nalishi. The fact of the case of Shankar @ Tunu (supra) is distinguishable to that of the present case. 21.As held by this Court in the matter of Ramkeshra ©Rameshwar (supra), presence of sole eyewitness was disbelieved and on the ground of non-examination of material witness, conviction of the accused persons we.re set aside, but in the present case, the evidence of Dukalabai (PW-2) and Sotilal (PW-3) clearly reveal that