IN THE HIGH COURT OF UTTARANCHAL, NAINITAL. No. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING. [(Chapter VIII, Rule 32(2)(b)] Criminal Appeal No. 1954/2001 (Old No. 1327/1992) Deep Chand Appellant. Vs. State Respondent. Date on 07-03-2006 A.F.R. (Approved for Reporting) Not Approved for Reporting (B.C. Kandpal, J.) Date : 07-03-2006 In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 1954/2001 (Old No. 1327/1992) Deep Chand S/o Banarasi Jamadar R/o Village Jakhaki P.S. Raipur, District Bijnor at present Sweeper Veterinary Hospital Augastmuni District Rudraprayag ……. Appellant. Versus State …… Respondent. Sri Alok Singh, Senior Advocate, learned counsel for the appellant. Sri G.S. Sandhu, learned A.G.A. for the State. Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: 07-03-2006 The appellant has preferred this criminal appeal against the judgment and order dated 26-6-1992, passed by the Sessions Judge, Chamoli, in S.T. No. 18/1991, whereby he convicted accused/appellant for an offence punishable under Sections 302, 376 and 201 I.P.C. and sentenced him to undergo life imprisonment under Section 302 I.P.C.; ten years R.I. under Section 376 I.P.C. and further five years’ R.I. under Section 201 I.P.C. However, all the sentences to run concurrently. 2- Brief facts of the case are that Chandra Lal was employed as Sub Post Master in Post Office at Augustmuni, and he was residing along with his family in a Government Quarter at Augustmuni. On 15-4-1991 at about 4 P.M. Km. Sumanlata aged about 11 years, the daughter of Chandra Lal had gone to her school to attend extra classes. When Chandra Lal after the office hours arrived at his house, he did not find Km. Sumanlata in the house and he became perturbed. Then he went out of his house to search his daughter and he went to her school and there he found that the school building was locked and thereafter he went to Km. Anita, the teacher of the school of his daughter and inquired about the whereabouts of his daughter from her and then Km. Anita told him that Km. Sumanlata had already gone back from the school at 5 P.M. Chandra Lal thereafter along with his friend Bendi Lal Tamta went to his in –laws house in village Bharatpur, about 12 kilometers away from Augastmuni and found that Km. Sumanlata had not come to his in- laws house. Then he returned back to Augustmuni in the same night along with his brother in law Vijay Kumar. Then they went to Tilwara at the house of Rajendra Kumar, the another brother in law of Chandra Lal, where he was posted as Pharmacist. There also whereabouts of Km. Sumanlata were not know. Then they along with Rajendra Kumar reurned back to Augastmuni. On the next day, i.e. 16.4.1991, at about 6 A.M. Chandra Lal, along with his brother in laws Vijay Kumar and Rajendra Kuma and Raghubir Lal and Sundar Lal had started the search of Km. Sumanlata and again went towards the school of Km. Sumanlata. There they saw the dead body of Km. Sumanlata in the dry water chamber tied in gunny bag. It was found that Km. Sumanlata was wearing a frock only and was naked below her waist. They also saw blood marks at places and sign of dragging and following the blood marks and sign of dragging, they reached near the quarter of the peons of veterinary hospital of Augastmuni and blood marks were seen up to the gage of the house of accused Deep Chand. Chandra Lal was sure that the murder of his daughter was committed by Deep Chandra and hence he went to Police Chauki Augastmuni and there he wrote written report, Ext. Ka. 1 and gave it at the Chauki. 3- On the basis of the written report, Dheeraj Singh, constable clerk posted at Police Chauki Augastmuni prepared chick F.I.R., Ext. Ka.9 and registered a case in the G.D. at report No.7 at about 7.30 A.M., Ext. Ka 10 on 16-4-1991. Asadu Lal, Station Officer in charge P.S. Ukhimath, District Chamoli started the investigation of the crime. He recorded the statements constables posted at Police Chauki Augastmuni and started the search of the accused. He came to know from an informer that the accused was sitting and concealing himself below a tree in the nursery situate near the veterinary hospital at Augustmuni. The I.O. arrested the accused on 16.4.1991 at about 11 A.M. During arrest the accused tried to escape but after chase by the policemen he was caught. The accused confessed his guilt before the I.O. and told that on 15-4- 1991 he had committed rape on Km. Sumanlata and murdered her. He also confessed his guilt before witnesses Rajendra Prasad Goswami and Chandra Singh. The accused handed over a blood- stained gunny bag, material Ext.8, from inside his quarter, which was used by him to wipe out the blood marks in the floor of his room. The accused also handed over the Kudal, material Ext. 6, a pair of shoes, material Ext 5, and blood-stained underwear, material Ext.7 after taking our from underneath the cot lying in his room. The I.O. took the aforesaid articles in his possession and prepared memo Ext. Ka.5. The I.O. also prepared site plan, Ext. Ka. 11 of the place of seizure of these articles after inspection. On the pointing of the accused, the I.O. got recovered the dead body of Km. Sumanlata, kept in a gunny bag, from inside a dry water tank and prepared recovery memo, Ext. Ka.2 and also prepared site-plan, Ext. Ka.12 of the place of recovery of the dead body. Photographs of the dead body, material Exts. 1 and 2 were taken at the spot. Thereafter the I.O. performed the inquest on the dead body of Km. Sumanlata with the help of accompanying S.I. Mehar Chand Khanna and prepared inquest report, Ext. Ka.6. The dead body was sealed at the spot and letter, Ext. Ka.15, was prepared to the C.M.O. for post mortem. The I.O. also prepared sample seal, Ext. Ka.16, letter to reserve Inspector of Police, Ext. ka.17 and the dead body was handed over to constable Swyambar Dutt and other lady constables for post mortem. The I.O. also took in to possession the blood-stained and plain earth at the residence of the accused, material exhibits ka. 9 and Ka. 11 respectively and sealed it separately at the spot. He also collected blood-stained grass, material Ext. 10 from the said passage and sealed it also at the spot. He also prepared recovery memo of seizure of blood-stained grass and the earth, Ext. Ka.3. The I.O. also prepared site plan of the place of recovery, Ext. Ka. 11. He also took in to possession the underwear, material Ext. 11 of the accused, and prepared memo Ext. Ka.4. Thereafter on the same day, i.e. 16.4.1991, the I.O. took the accused to the police chauki Augastmuni, and made entries of the arrest of the accused in the G.D. at report No. 12, at 14.30 hours, the G.D. entry is Ext. Ka.12. 4- On 17.4.1991 the Sri Johari Lal, Station Officer, P.S. Ukhimath took the investigation of the case from Sri Asadu Lal. Sri Johary Lal recorded the statements of the various witnesses and submitted his report, carbon copy of which is Ext. Ka.19, before the C.J.M. Chamoli for sending the case property for chemical examination. He also submitted his report to the C.J.M. for recording the statement of accused U/s 164 Cr.P.C. and the statement of the accused was recorded U/S 16 Cr.P.C. by the C.J.M Chamoli on 17-4-1991. After completion of investigation he submitted charge sheet, Ext. Ka.20 against the accused on 31.5.1991. The I.O. also received the chemical examiner’s report, Ext. Ka.21 regarding the case property and submitted it in the case. 5- On committal to the court of Sessions, the Sessions Judge framed charges under Sections 376, 302, 201 I.P.C. against the accused, to which he pleaded not guilty and claimed to be tried. 6- In order to prove its case, the prosecution has examined in all 10 witnesses. Out of these, P.W.1 Chandra Lal is the complainant of the case and father of deceased Km. Sumanlata. He has proved the written report, Ext. Ka.1. He has narrated the facts of the case and about the missing of Km. Sumanlata and the search made by him. This witness also corroborated the prosecution version about the finding of dead body of Km. Sumanlata inside a dry water tank, kept in a gunny bag and also the blood marks and sign of dragging upto the residence of accused Deep Chand. 7- P.W.2, Pratham Das, next door neighbour of accused Deep Chand. This witness was posted as messenger in the veterinary hospital at Augustmuni. This witness has stated that on 15-4-1991 he had gone to village Margaon to see the ill buffalo of Jitar Singh and at about 6 P.M. he returned back and thereafter straightway went to Vijaynagar and from there he returned to his residence at about 8.30 P.M. on the same day. He further deposed that when he returned at this residence, Deep Chand demanded phenyl from him because according to him there were warms in his latrine. After 10 or 15 minutes when Deep Chand had gone from his house after taking phenyl, this witness also gone at the room of Deep Chand accused because he had to stitch foul in a Saree and there was no sufficient light in his room and when he reached in the room of accused, he had seen that his entire room was wet and accused Deep Chand and his son were lying on the cot. He further stated that the accused had told him that he was not feeling well and he wanted to sleep and at that time he was very much frighten. In the next morning at about 6.20 A.M. the accused was arrested by the police. 8- P.W.3, Vijay Kumar and P.W.4, Rajendra Kumar are the witnesses of fact. They have narrated about the search of Km. Sumanlata, deceased made by them along with the complainant Chandra Lal. They have corroborated the statement of Chandra Lal, P.W.1 and also deposed about the recovery of dead body and other circumstances of blood marks, sign of dragging etc. 9- P.W.5, Rajendra Prasad is the witness of memos of recovery of the dead body and other case properties. He has narrated about the recovery of dead body, seizure of blood stained and plain earth, Kudal, gunny bag, underwere etc. He also proved the inquest report, as he was also appointed as panch, at the time of inquest of the dead body. 10- P.W.6, Shrada Nand is the photographer. He had taken photographs of the dead body of the deceased and proved the photographs material exhibits 1 and 2 and its negatives exhibits 3 and 4. 11- P.W.7, Dr. Mayank Upadhyaya, has performed autopsy on the dead body of Km. Sumanlata on 17-4-1991 at 10 A.M. in the District Hospital Gopeshwar, Chamoli and proved post mortem report, Ext. Ka.7. According to this witness on external examination he found that the body was average built, pale looking. Rigor mortis passed away from upper as well as lower parts of the body. Hands and feet washerman like, clotted blood was present long inner aspects of thigh and legs. Eyes were closed, mouth half open, clotted blood was present over both ears. The doctor has found the following ante-mortem injuries on the person of the deceased Km. Sumanlata:- (i) Incised wound present over left side of scalp vertically placed, 11 cm above inner end of left eye-brown, size of the wound was 4cm x 1cm x bone deep. (ii) Lacerated wound 4cm x 1cm x brain deep, over left occipital bone. Margins were bluish in colour. (iii) Incised wound 5cm x 1cm x bone deep present over right side of forehead. Clotted blood present along with margins of the wound. (iv) Linear abrasion 12cm horizontally placed over left side of face, starting from middle ending in to an incised wound. Size of the wound was 4.5cm x .5cm x bone deep, over left cheek bone. Colour bluish black. (v) Incised wound 3.5 cm x .5 cm x muscle deep, starting from left lower end of nose transversally placed. Clotted blood present over the margin. (vi) Incised wound 7cm x 1cm x cutting through upper lip upto mucosa, 1cm above and along left side of upper lip. (vii) Incised wound 3cm x 1.5cm x bone deep in front of left ear horizontally placed. (viii) Incised wound 7.5cm x 2cm x 5cm deep behind left ear, descending backwards, cutting through left mastoid bone. (ix) A linear contusion 14cm x 2cm transversally placed over upper front and left part of neck between chin and firings. Base pale margins chocolate brown colour. Multiple abraded contusions varying in size from 1cm x 1cm to 4cm x 1cm present below and along injury No.9 bluish black in colour. (x) A contusion 4cm x 1.5 cm bluish black in colour present over inner aspect of right elbow. (xi) An abraded contusion 6cm x 5cm bluish black present over outer aspect of left elbow. On examination of genital, the Medical Officer found that Moro pubic, labia Majora Minora intact. Hymen easily admitting index finger. Posterior tear radially present. Post commisures intact. Vaginal smear from posterior fornix sent to Pathologist for the presence or absence of sperms. In internal examination fracture of left occipital bone 3cm long was found. Main brains torn below occipital bone fracture. Brain was lacerated and congested below left occipital bone fracture. On the base of skull clotted blood and fracture of middle cranial fesses present. In the opinion of the doctor the cause of death of the deceased was shock and haemorrhage as a result of ante-mortem injuries. Sign of penetration was present. Vaginal smear report as per Pathologist Dr. Anil Rathi was as under: The vaginal smear shows plenty of partly autolysins ephithehalcells and occasional leucocytes. No deficient structure of living or dead sperm could be detected in the smear sample. Duration of death about 36 to 42 hours. This witness also proved the hand writing and signatures of Dr. B.H. Rizvi who has prepared the injury report, Ext. Ka.8. of accused Deep Chand. Dr. Rizvi had medically examined the injuries of accused Deep Chand on 16-4-1991 at 10-40 P.M. in the Hospital and has prepared the injury report, Ext. Ka.8. The doctor has noted following injuries on the person of the accused:- (i) Swelling and contusion 3cm x 2cm on right hand above writs joint. (ii) One abrasion .5cm x.1cm on posterior aspect of right forearm. (iii) One contusion 5cm x 2cm on anterior aspect of left forearm. (iv) One abrasion 1cm x .2cm above right ear. (v) Contusion and swelling on left side of head. (vi) Swelling on lip. (vii) Multiple abrasion on abdomen measuring 2cm x .5cm to 1cm x .2cm. In the opinion of the doctor injuries were simple in nature and cause by hard and blunt object and were about 10 to 12 hours old. 12- P.W.8, S.I. Asadu Lal is the first Investigating Officer. He has narrated about the steps taken by him during the investigation and also proved the prosecution papers prepared by him at the time of the investigation as referred above. 13- P.W.9, Johari Lal is the second I.O. of the case. This witness also narrated about the investigation carried by him and proved the letter, Ext. Ka.19 written by him to C.J.M. for chemical examination of the case property and charge sheet, Ext. Ka.21 submitted by him. 14- P.W.10 Sri Amarjeet Singh, the then C.J.M. Chamoli had recorded the statement of the accused Deep Chand U/S 1764 Cr.P.C. and he has proved the said statement Ext. Ka.22. 15- After conclusion of prosecution evidence, the statement of the accused was recorded U/S 313 Cr.P.C. He has denied the allegation of the prosecution. In regard to his confessional statement, he stated that Sri Johari Lal had threatened him that he should make confession about the guilt otherwise he would not be left. He also stated that he was beaten by the Police Officer due to which he became unconscious and his medical examination was conducted. The accused did not adduce any kind of evidence in his defence. 16- After assessment of the evidence on record and hearing the counsel for the parties, the Sessions Judge came to the conclusion that the prosecution was able to prove its case beyond reasonable doubt against the accused and accordingly held him guilty for the offences U/Ss 302, 376 and 201 I.P.C. and sentenced him as aforesaid. 17- Feeling aggrieved, the accused has preferred the appeal. 18- We have heard the learned counsel for the accused/appellant, learned G.A. and perused the record. 19- This case rests on circumstantial evidence. It is true that there is no eye witness in the case from whose evidence it can be said that the accused/appellant Deep Chand ( hereinafter called as ‘appellant’) had committed rape upon the deceased Km. Sumanlata and murdered her and thereafter intentionally causing her dead body to disappear in order to screen himself from the legal punishment. 20- The question which arises for our consideration is the present case is, whether Km. Sumanlata was raped, murdered and thereafter was thrown in a tank tied in a gunny bag by the appellant, as has been alleged by the prosecution. The prosecution has tried to prove the complicity of the appellant in this case on the following circumstances:- (A) Blood-stains found at the place, where the dead body of the deceased Km. Sumanlata, was discovered and these blood-stains were followed up to the room of the appellant. (B) The conduct of the appellant at the time of his arrest that he tried to escape his arrest by the police. The conduct of the appellant also to wipe-out the blood-stains inside his room with a gunny bag. (C) The recovery of the incriminating articles, i.e., Kudal, which was used as a weapon in the commission of murder of Km. Sumanlata ( material Ext. 6), underwear of the deceased Km. Sumanlata ( material Ext. 7), a pair of blood- stained shoes, belonging to the appellant ( material Ext.5), underwear of the appellant ( material Ext.12), at the instance of the appellant. (D) The confession made by the appellant under Section 164 Cr.P.C., which was recorded by the Chief Judicial Magistrate Chamoli. (E) The report of Chemical Examiner ( Ext. Ka.20) showing spermatozoa on the under-wear of the deceased ( material Ext. 7) and the underwear of the appellant ( material Ext. 12), as well as frock and swaitor of the deceased Km. Sumanlata. (F) Report of the Chemical Examination showing human blood in the recovered Kudal, underwear of appellant and under-were of the deceased. 21- Learned counsel for the appellant has argued that the prosecution has utterly failed to establish the guilt of the appellant beyond reasonable doubt. He has tired to place before us certain infirmities, lacunas, as well as latches in the prosecution case, which according to him are serious in nature and creating serious doubt on the authenticity of the prosecution case. 22- The first and foremost argument advanced by the learned counsel for the appellant is that the first information report in this case is anti-timed and has been lodged after due deliberation and consultation, hence cannot be relied upon. He has pointed out our attention towards the statement of P.W.1, Chandra Lal, who has stated in his deposition before the court that the Police Inspector had arrived at his residence at 3 O’clock in the day and had taken him at the Police Chauki, where he had written the report, Ext. Ka. 1 and gave it there. He has also invited our attention towards the statement of Asadu Lal, P.W.8, who is the Investigating Officer of this case and who has stated that the F.I.R. of this case was lodged at 7-30 A.M. on 16-4-1991 and immediately after the registration of the case he started commencing the investigation and had gone to arrest the accused. He has further submitted that according to P.W.8 Asadu Lal, the accused was immediately arrested and he was brought at his residence and on his confession the dead body of the deceased was recovered from the tank. Therefore, according to the submission, advanced by the learned counsel for the appellant, the first information report becomes absolutely doubtful and unreliable and in any case it could not have been lodged at 7.30 A.M. on 16- 4-1991, in view of the infirmities in the evidence of prosecution witnesses. 23- The record reveals that there is no doubt that the complainant of the case, P.W.1, Chandra Lal has deposed in his statement that the Police Inspector had come to him in the day at 3 O’clock and took him to the Police Station, where he prepared the written report and lodged it there, but the deposition of this witness further reveals that in paragraph-9 of his cross-examination, he has specifically stated that the F.I.R. was lodged at 7 – 7.30 A.M. This witness has denied the suggestion given by the defence that he has given the statement after tutoring him. This witness has further deposed in his cross-examination that the later statement given by him, that the F.I.R. was lodged at 7 – 7.30 A.M., is correct. His statement finds support from the evidence of P.W.8, Asadu Lal, who is the Investigating Officer of this case, as according to him the F.I.R. was lodged at 7.30 A.M. at Police Chauki, Augastmuni. This witness proved the F.I.R. prepared by Dheeraj Singh, Constable Clerk and copy of G.D. No.7 at 7.30 A.M. dated 16-4-1991 (Ext. Ka.9 and Ext. Ka.10). There is nothing on the record on behalf of the defence that he was in any way inimical with the accused. Hence there is no reason for false implication of the appellant in this case. There is no cross-examination in this regard by the defence and there is noting to disbelieve the statement of P.W.1, Chandra Lal, complainant, as well as P.W.8, Asadu Lal, I.O. The statement of the complainant in this regard finds corroboration from the evidence of Vijay Kumar and Rajendra Kumar, P.W.3 and P.W.4 respectively, who have stated in their evidence that the gunny bag in the dry water tank, near the veterinary hospital, was found at 6.30 A.M. and thereafter complainant Chandra Lal had gone to Police Chauki immediately. There is nothing on record to suggest that P.W.3 and P.W.4 are deposing falsely in this case pertaining to the fact of recovery of dead body of deceased Km. Sumanlata. Therefore, we are of the view that there is no delay in lodging the first information report and the first information report can be said to have been lodged at the time, i.e., 7.30 A.M., as has been alleged by the prosecution. 24- Learned counsel for the appellant has next submitted that factum of the recovery of the dead body of the deceased, as well as seizure of the incriminating articles, at the instance of the accuses/appellant, creates grave doubt on the authenticity of the prosecution case. 25- We have carefully examined the entire evidence available on the record in this regard. The statement of Asadu Lal, P.W.8 (I.O.) is clear that after the arrest of the accused, he brought him to his residence, where the appellant made his confessional statement and led him to the place where the dead body of the deceased was discovered and then at the instance of the accused the dead body was recovered and thereafter on the pointing out of the accused the other incriminating articles, viz., Kudal, under-were of the deceased, under-wear of the accused, a pair of blood-stained shoes belonging to accused and the blood-stained gunny bag were handed over to the police after taking all these articles from underneath the cot lying in his room. The recover memo has