' hjyt^ CP0000066429 IN 7BE HIGH COOfiT QF JBBICATURE AT J'ABALPUB eKSHIBI&L APPEAI. N0. 33^ OF 19^''i.i-;n i; - •W-i'*'.- i iiiiiiii ^ APPEtLMiT; IIN^JAILF. RESPGNBEHT; aaju alias Rajkuaiar S^<S Araeerchand'&ajput^ aged aboat 22 ^'ears.resident of villa^e Bj.neshpaay; Police Station- Gai3arpar^" Tahsll - Bajpar, Dis^€.Nainj.tai,(U.P.) a^ . -^ • VERSHS . ., State of Madhya Pradesh. CRIHXNAL APPEAX. UNDEB SECTIOH 37^1(2) OF THE, CGDE OF CRXHINAL PBQCEBUKB, 1973 -I . . ^ / t?^ HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Criminal Appeal No. 399 OF 1997 Raju @ Rajkumar Vs. ? State of M.P. JUDGEMENT FOR CONSIDERAIIQBL- • Sd/- \ DHDtENDRA MISHRA Judge HON'BLE SHRI L.C.BHADOO .J. ^y^ Sd/- L.C.BHADOU Judge ^' POST FOR JUDGMENT ON &° FEBRU^Y^OOS Sd/- Dhirendra Mishra Judge s / B ^ BEI B;!!' @^s '^' K11 ^J^-:.L';-L-'^.'^'-^SE^^^^I^^SI^^^^?fr? f3Z - ! DIViSION BENCH: HON'BLE SHR! L.C.BHADOO & HON'BLE SHRI DHIRENDRA MISHRA, JJ CRIMINAL'APPEAL N0. 399 of 1997 Raju Vs. l.- Shri R.K.Jain, iearned counsel forthe appellant. Shri U.N.S.Deo, tearned Govt. AdvocaSe with Shri M.P.S.Bhatia, iearned Panel Lawyerforthe respondent/State. Dhirendra Mjshra, J JUDGMENT ( 20.02.2006) The appellant has. preferred this appeai under Section 374(2) ofthe Code ofCriminal Procedure against the impygned judgment dated 05.12.1996 passed bythe learned Additional Sessions Judge, Baloda Bazar, Distt- Raipur in S.T.No.107/96 whereby learned Additional Sessions Judge has convicted the accused/appellant under Sections 302, 363, 366 and 376 of the Indian Penal Code and sentenced him to undergo life imprisonment with fine of Rs.5,000/, in default R.l. for one year under Section 302 ofthe IPC, R.l. for seven years with fine of Rs.1,000/-, in default one year R.l. for the offences under Sections 363 & 366 of the IPC and R.l. for ten years with fine of Rs.1,000/, in default R.i. for one yearunder Section 376 ofthe IPC. 2. The case ofthe prosecution, in brief, isthat compiainant Meena Kumari lodged a report in Police Station-Baioda Bazar on 05.12.1995 at about 7.30 / a.m. informing t()&t on 04.12.1995 at about,8.00 p.m. appellant came in his t'ruck, parked the.same inside the factory and came to her hotel, took tea and bhajia and:a!so offered bhajla to her daughter (since deceased) aged about five years and thereafter enticed her and took her on his back and went somewhere. When he did not return she sent her son Suman to search them, however, he cp.uld aiso'npt spot them. After some time the appellant came @ alone and enquired about his fish. On being asked about her daughter, he said that he had left his daughter there only whereupon she was frightened and narrated the incident to Sarpanch-Bhojram and Panch-Baburam. They also enquired from the appeliant and searched in the vicinity. Raju ran away and entered in the cement piant. He was further brought from the plant and asked. However, the appellant ran away on the pretext of easing himself. "_ff iaburam and Bhuwan went by truck to' catch him and he was caught near Arjuni and brought back. Thereafter the compiainant in tbe company of other villagers and appellant went to the police station and lodged the report. After registering the offence the poiice went to the scene of occurrence, recorded memorandum (Ex.P/5) of the appellant, discovered the dead body of Shakuntala and prepared Panchanama (Ex.P'4) after giving notice to the witnesses vide Ex.P/3. Dehati merg intimation of Ex.P/13 was recorded on 05.12.1995atabout9.30a.m. afterdiscovery ofthe dead body. On the basis ofmemorandum ofthe appeNant, merg intimation of Ex.P/14 was recorded at about 8.10 p.m. The dead body was sent for postmortem to Govt. Hospital, ialoda Bazar vide Ex.P/9 where Dr.R.S.Tiv/ari (P.W.12) and Dr. Joshi (P.W.13) conducted postmortem over the dead body and submitted the report of Ex.P/17. During investigation sahnar of the deceased was seized vide Ex.P/2 and underwear of the appellant was seized vide Ex.P/6. Kurti and underwear ofthe deceased in a sealed packet sent bythe doctorwere selzed vide Ex.P/7. Spot map was got prepared by Halka Patwari vide Ex.P/8. The accused v«as medically examined and report of the doctor is Ex.P/18. The appellant vras arrested vide arrest memo of Ex.P/15 on 05.12.1995 at about 20.15 hours. The seized articles i.e. dothing of the appellant and the deceased were sent for chemical examination to Forensic Science Laboratory vide Ex.P/16. After completion ofthe investigation charge sheet Vias fiied in the Court of Ad^iitional Chief JudicialMagistrate, Baloda Bazar who in turn committed ti>ie,-6ase to the Court of Sessions Judge, Raipur and the same was received on transferbythe learned Additional Sessions Judge fortriai. 3. . Learned Additional Sessions Judge framed charges under Sections 363, 36.6-A, 376 %n<i 302 ofthe [ndian Penal Code. 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The evidence adduced by the prosecution for establishing the guilt of the accused may be summarized as under; (a) That on the date of incident at about 8.00 p.m. appeilant came to the hoterof complainant Meena Bai and took her daughter baby Shakuntala on his back in the name of playing by inducing her towar^ds the culvert. (b) Thatafter half an hourwhen Shakuntala did not return she sent her son Suman to cal! her (Shakuntala) for meal. However, Suman came back and informed that Shakuntaia is not there. (c) That immediately thereafter accusedcame to her hotel and on enquiry he said that he had left the girl nearthe culvert. (d) That the accused initially accompanied the complainant in searching the girl, however, accused went towards his truckthereafter. (e) . That when the complainant could not trace her daughter Shakuntala in the locaiity (mohalla) she started weeping and-;thereafter accused was brought to the hotel from where he escaped at about 2.00-3.00 a.m. in the night. (f) That the compiainant sent Babulal (P.W.4) and Bhuwan (P.W.3)to search the accused/appellant. (g) That Babuia! and Bhuwan found the accused/appeilant near Arjuni on road and took him to Bhatapara and thereafter from Bhatapara to Police Station- Baloda Bazar. (h) That on the memorandum ofthe accused/appellant that he has concealed the dead body of Shakuntala in the pit of the mines, the poiice discovered the same. (i) Th^ft on the examination ofthe dead body at the time of inquest vagina of the deceased was found slightly open, however, no extemal injuries were spotted. (j) Ttiat in the postmortem injuries as described in the foregQJng paragraphs were found on the person of the •l !•: ^/2 deceased and cause of death was asphyxia caused by suffocation. 11. The doctor performing autopsy, in paragraph -7 of his statement has opined that in the instant caSe asphyxia could be caused by poisoning, by suffocation, by smothering or closure of mouth and nostrils, by throttling, by hanging or even by faliing in watw. Sinc^the doctor has not found any ofthe symptoms available in the case of hanging and strangulation as detaiied in the medical jurisprudence by Dr. Modi, so possibility of death of deceased Shakuntala by hanging or strangulation is ruled out. The presence of froth in the nostrils, blood maed froth in the iungs, presence of 250 ml fluid in the stomach ars some of the symptoms which are availabte in the caseofdeath due to drowning. Similarly, bruises and abrasions on the cheeks and molar region or on the lower jaw are found m the case of forcible smothering if there is struggle. ^ 12. Learned trial Court on the basis of the statement of the complainant Meena Bai has arrived at theconclusion that the appeliant took deceased Shakuntala on ftis back by inducement and thereby kidnapped her with an intention to commit rape as P.W. 4 Baburam had found the hymen of the deceased ruptured and P.W. 8 Bhojram Sahu has stated that vagina of Shakuntaia was svuullen and P.W. 12 Dr. Tiwari has also found reddishness over the exterior part of the vagina and redness over libia majora and minora and therefore, the learned trial Court held the appellant guilty under Section 363, 366-A and 376 of the iPC. Simiiarly, the appeliant has also been held guitt for causing homicidal death of minor Shakuntala on the basis of circumstantial evidence of such as - i) that the appeltant was iast seen together with the deceased vAen she was alive; ii) that the appellant tried to run away frpm/he place of incident on a fatse excuse and vi@s subsequently on the memorandum of the appellant dead body of Shakuntaja was recovered from the pit which was very smail having oniy 6 inch water and it was not possible for anyone to die after faling in the said pit; iv) that none ofthe wtnesses-have stated that the dead body was floating and the body was. found mu^ed face down over the water. Therefore, it cannot be , , ; te said that Shakuntala after reaching there fell in the said pit and died due to drovming. Thus on the basis ofthese circumstances learned Court below has inferred friat the appellant tried to commit rape on the deceased by forcing his penis into her vagina and when deceased Shakuntala might have tried to scream, the accused might have smothered her mouth, as a resutt ofwhich she died due to suffocation and the abrasions present over various parts of her body may be because of writhing. f 13. Learned counsel for the -appeliant submits that the question of kidnapping of the deceased does not arise as the complainant had hersetf stated that her daughter used to accompany the appellant on earlier occasions aiso and there is no evldence of rape available on record. The doctor performing autopsy has categorically stated that hymen of the deceased was not ruptured and the same was intact and reddishness present over libia majora and minora and over exterior part of vagina may be as a result of scratches, she might have sustained during drovming in the mud. It is further argued t'hat the dead body ofthe deceased was not discovered on the basis of memorandum of the appel'ant as from the evidence avaiiable on record i( would be evicfent that villagers had a!ready recovered the dead body even before the memorandum ofthe appeltant was recorded. 14. Meena Bai - mother ofthe deceased has stated that she runs a hotel in viilage Rawan where the accused came often. On the date of incident also appetlant came there at about 8.00 p.m., took her daughter Shakuntai for playing as he used to take. Shakuntala for playing eariier also. Hovrever, after halfan hour she sent her son Suman to call her (Shakuntala) fortaking meals but Suman returned and informed that the girl was not there. After return of her son Suman.accused came to her hotel and on being asked about the girl. he informed^tiat he had left the girl near the hotei. The accused went up to the culvert fo search her daughter under it and he has stated that ifhe does hot find her, he shall mform. The complainant went towards village to search her daughter and the accused who had come wth the truck for loading cement went towards his truck.-,.She started v/eeping after reiurn from iocality (mohalla) as she CDyld not locate her daughter and enquired from other viilagers. One Janak Lodar brought the accused to the hotel who stayed in the, m •^sioAC.uy—^rL^J^.^IT" 'ss"B hotel througholit night and ran away at about 2.00-3.00 p.m. whereupon she sent Babulal (P.W.4) and Bhuwan (P.W.3) to search the accused who caught the accused and tookto Balocta Bazar Poiice Station at about 6.00 a.m. in the following day. She lodged the report of Ex.P/1 in the .police station and returned to the village -Rawan at about 10.00 a.m. and then peopie informed her that her daughter Shakuntala was lying in the pit. The accused has shown her salwar which her daughter was weapfng on the date of incident. She has admitted that truckers stationed their trucks in front of her hotel and take tea and on the date of incident also sdme truck drivers, conductors, passersby and security guards had come to her hotel. On thesame day the accused took tea in her hotel at aboutS.OO p.m. and thereafter again returned on 7.30 p.m., at that time other customers were not present except herself and her kids. The accused stayed in her hotel for 20 minutes. The gate ofthe Modi Cement plant is far offwhich is approximateiy 1 furlong. He took her daughter on his back in the name of eating grQundnul. The cuh/er is just 15 ft (10 hands) avray from her hotel and sound may be heard from the culvert in the hotel. There is continuous vehicular movement overthe culvert. Halfan hour after taking her daughter the accused came back in her hotel and said that he had left her daughter near cuivert. Since the day the accused took her daughter she could not see her. She had.famiiy retations with the accused and therefore she never suspected him as he did not do any act which could create suspicion. 15. P.W. 2 Suman son ofthe complainant has stated that on the date of incident her mother Meena Kumari sent him to searcli Shakuntala, however, he could not locate his ^sister. Thereafter, his mother went to search Shakuntala but she could not find her also. On the followng day Shakuntala was fpund iying dead in a pit. In the cross-examination he has stated that / culvert is situat^d at a smal! distance from their hotel and whenever they find '• / time they usefl to go and play there. The pit is on the right side of the canal which isfar offfrom the road where my sister was found lying and the pit was filled Vi/ith water. He has further stated that it is correct to say that the persons go there to answer the call of nature. He alone had gone to search her at about 8.00 p.m. --..,. ~f •"^ © ''<../ 16. P.W. 3 Bhuwanlal Sahu has stated that compiainant came to him and enquired about her daughter- and informed that her daughter is missing. Thereafter, he also started searching the giri along with others. The accused Raju vras aiso searching with them, howevsr, in the meanwhile, accused Raju disappeared which created suspicion in the mind of Meena Kumari who asked him to go and report in Bhatapara and Bgfloda Bazar Police Station whereupon he and Babuial were proceeding to Bhatapara. However, on way near Arjunee they savrf the accused by the side of the road stopping their truck by waving his hand and after seeing them in the truck, the accused became apoiogetic whereupon they asked him to accompany them to Police Station- Bhatapara. .After reaching poiice station they met one constable and informed him about thte incident. However, only constabie was there and S.O. was coming in the morning. Theystarted for Batoda .Bazar as Ravi/an comes within the jurisdiction of Baloda Bazar. No seizure was made in his presence. When they returned from Baioda Bazar police station to viilage Rawan they found that crowd vras gathered and Shakuntala was iying there. Dead body of Shakuntala was lying in a muddy pit. In the corss-examination he has stated that the pit where the incident took p!ace is 200 ft. away from the hotel of Meena Bai and there was only 6 inch water in the pit. He has further stated that he met Meena Bai in Baloda Bazar. In the night Msena Bai came to his house at about 11.00-11.30 p.m. and she was accompanied by 4-5 persons including the accused. He has further stated that he met Raju at about 5.00 a.m. beside the road. Report\was iodged by Meena Bai in his presence. 17. . P.W. 4 Baburam has stated that on the date of incident when he was returning after working he found big crowd near the culvert and his children were also there and they informed him that daughter of Ranjan is missing. He went near th9/culvert and found saiwar ofthe deceased. The appeilant was •• / sitting near bertree and on being asked he told that he brought Shakuntala up to the culvert and had left here there. After some time he vias to!d that appellant had escaped on the excuse of urination and on search they could not tacate him. However, they found the appeltant near Arjuni vAiie they were proceeding.towards Bbatapara, took him tothe Police Station- Bhatapara and from there they proceeded to Baioda Bazar Police Station by a truck. On 10 being asked by the police constable the appeliant confessed m a hotel and staled that he has throtMi the girl in a pit. Thereafter, they handed over the appeilant to the poiice and took the appellant tovi/ards the place of incident. He reached with the police on the spot and found the dead body of baby Shakuntala which was iying under one and half feet deep v/ater face down. He has further stated that after taking out the dead body from the pit, he cleaned the mud from her body and Mspected her vagina and found the vagina torn. He stated that he did not find. any blood. He has further stated that accused had shown the spot where the dead body vi@s iying, the villagers were agitated and were ready to beat the appellant whereupon the police brought the appellant back to~the po!ice station. He has admitted his signature over Ex.P/4 - inquest report and Ex.P/5 - memorandum. However, he stated that accused did not tell before him that he will lead where he has concealed the dead body ofthe girl. He has ateo admitted his signature over Ex.P/6 and stated that sal\A@r and underwear of the girl were seized through this document. In the cross-examination he stated that police has not recorded his statement and stated that number of persons were sitting over the culvert who were residents of viilage Pounsari and had reached there for taking wine in the nearby !iquor shop. He has further stated that thousands of persons had gathered at the place of Incident and they were in agitated mood. Police force v«gs deployed and they were threatening that they v/ould beat the accused whereupon Police took the accused to the police station. PW-8 Bhojram Sahu has also deposed in the similar line. He is the witness ofinquest, memo of Ex P-5 and seizure of underwear of the accused of Ex P-6. In the cross examination he has stated thal p.olice interrogated the appellant in the police station in the morning in the presence of Meenabai, Bhuwan, Baburam and Shera and himself. The appellant was further interrogated near canal when he mentioned aboyt the spot. During interrogation in police station also he had narrated the/incident andalso disc!osed about the spot. Hovrever, his statement wss recorded near the place where the dead body was iying. Thereafter, police took the accused inside Modi Cement Plant. 18. . So far as^'the cireumstance ofthe deceased when she was aiive being !ast seen in t'he company ofthe accused is concerned, from the statement of 11 ^' PW-1 Meenabai it is evident that appellant took Shakuntala on his back in the name of playing by indueement of providing groundnut and thereafter the dead body of Shakuntala MWS found beside the canal in a pit. Immediateiy after the appellant took the deceased with him, intensive search_.of Shakuntala was made in the vicinity-and at ail the placeswtiere she couid be found and her dead body was ultimately found in the morning. Meena Bai has also stated in paragraph 13 of her statement that sinc6 the accused took the girl she did not see her daughter. Thus from (he perusat of the evidence of Meenabai circumstance ofthe deceased being last seen with the accused when she was alive is established. 19. The'second circumstance required to be established bythe prosecution is the conduct ofthe accused afterthe ineident. 20. Learned counsel for the appellant submits that just half an