IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1192 of 2001 Old Criminal Appeal No. 1052 of 1997 Dated of Decision: 17.03.2010 Manoj Kumar …Appellant (In Jail) Versus State of Uttarakhand …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. S.K. Agarwal, learned Sr. Advocate assisted by Mr. Navneet Kaushik Advocate for the appellant. Mr. Rajendra Singh, Advocate for the complainant. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. Accused-Manoj Kumar stood trial for the offences punishable under Sections 302 and 201 of the IPC for committing murder of Km. Bharti a young girl of 17 years. He has been convicted by the judgment and order dated 14.05.1997 passed by the IInd Additional Sessions Judge, Haridwar in Sessions Trial No. 62 of 1994. The accused has been acquitted under Section 201 IPC and has been convicted under Section 302 IPC and was sentenced to undergo life imprisonment and Rs. 20,000/- as fine, out of which a sum of Rs. 15,000/- was to be paid to the father of deceased. In case fine was not paid, the accused was ordered to further undergo five years of rigorous imprisonment. The criminal trial was set in motion on an application-dated 24.08.1993 submitted by Ved Prakash, father of deceased Km. Bharti Sharma to Station House Officer, Police Station Manglore. It was submitted that on that date at about 7:10 a.m. he, as well as his wife, had left for their duties and his daughter-Km. Bharti was alone at the house. When he came 2 back from his college, he found his daughter hanging from the roof with the help of a bed-sheet. However, on 26.08.1993 Vinod Sharma (PW-2) came to meet Ved Prakash in the night and informed him that he alongwith one Kushal Pal had visited his house on 24.08.1993 at about 11:00 a.m., when they made a call by entering inside the main gate of the house, no one responded. When they again called, Manoj Kumar, the owner of betel shop, immediately came out of the room of Masterji’s house and informed them that PW-1 Ved Prakash (Masterji) was not at home and no one was present in the house. Thereafter they left his house. Accordingly Ved Prakash submitted another application on 26.08.1993 (Ex. Ka-1) to Station House Officer, Police Station Manglore giving all the facts disclosed to him by Vinod Kumar Sharma (PW-2). Statement of Vinod Kumar Sharma (PW-2) was recorded by the Investigating Officer, S.I. D.G. Tyagi, (PW-6) on 26.08.1993 itself in the night. During the investigation, the Investigating Officer searched for the accused but he was not found at his house. On 26.08.1993 accused Manoj Kumar made a confessional statement before Sanjay Sharma (PW-4) at about 9:00 p.m. The state is reproduced below:- “I have committed the murder of Masterji’s daughter. You have influence over the police and therefore, kindly save me from the police. I am living in the neighbourhood of ‘Masterji’ and was on visiting terms with him. Materji’s daughter Km. Bharti had been giving me smile and therefore, I was felt sure that she was in love with me. On 24.08.1993 when Km. Bharti’s parents had left for the duties, I entered into the house of Masterji at about 10:45 a.m., Km. Bharti was cleaning utensils. I went inside the bedroom and called Bharti but she did not come to me. On finding her alone, I got tempted and in order to fulfill my lust, I dragged Km. Bharti inside the bedroom and fell her on the bed. She scratched my face with both of her hands, therefore, I pressed both her hands on the 3 backside. In the process my arm was placed in front of her mouth. Thus, she gave bite on my left arm. In order to free my left hand, I gave pressure with my right hand on the neck of Km. Bharti. She became unconscious on account of pressure on her neck with my bangle in the right hand. I thought she had died. Accordingly I hanged her with the help of a bed-sheet with the fan by making her sit on a stool placed on the bed. Thereafter I removed the stool. Meanwhile, I heard someone calling ‘Masterji’. Initially I did not respond but when again the same call was made, I went out and saw two persons standing on the main gate, they were enquiring about Masterji, I informed them that Masterji was not in the house, therefore, they left the place. I also quietly left the house of Masterji and went to my betel shop. Please get the matter settled. I have committed a mistake.” The statement of Sanjay Sharma (PW-4) in this regard was recorded by the Investigating Officer. The accused Manoj Kumar was arrested on the information of a secret informer on 27th August 1993. He was got medically examined by Dr. M.D. Oja (PW-3). S.I. Rajesh Kumar Sharma got prepared the Panchnama, got the dead body of Km. Bharti and the scene of crime photographed and prepared the site plan. The Investigating Officer recorded the statements of the witnesses. The accused moved an application for making confessional statement before the Magistrate. Later on, he refused to make the statement before the Magistrate. On completion of the investigation, the challan was presented and the accused was charge sheeted under Sections 302 and 201 of the I.P.C. to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as eight witnesses PW-1 Ved Prakash, the complainant, father of deceased, Vinod Kumar Sharma (PW-2) is the witness who had last seen the accused coming out of the house of Ved 4 Prakash, Dr. M.D. Ojha (PW-3) medically examined the accused on 27th August 1993 and found the following injuries on his body. (i) Long abrasion 3 c.m. x .5 c.m. Clotted blood on the left side of the face. There were several abrasions on the face, which were parallel to injury no. 1. (ii) Abrasion on right cheek 2 c.m. x .1 c.m., 5 c.m. from right ear. (iii) A human bite on the left-hand 4 c.m. x 3 c.m. Impressions of teeth were visible, the injury was 14 c.m. below the elbow. (iv) Swelling on both side of the face. (v) Abrasion 3 c.m. x .1 c.m. on the left forearm, 6 c.m. from the wrist. As per the opinion of the doctor, all the injuries were 3-4 days old. Injuries no. 1, 2 and 5 could be the result of by scratching with the nails. Injury no. 3 could be possible by biting with the teeth. All the injuries were found to be simple and the injuries could have been caused on 24th August 1993 at 11:00 a.m. Sanjay Sharma (PW-4) is the member of the Bhartiya Janata Party and was the Municipal Councellor (Nagar Adhyaksh). He was the resident of the same place i.e. Manglore. The betel shop of the accused is situated very close to the medical shop of this witness. Both of them were having good relation and were on visiting terms. Therefore, the accused made an extra judicial confession before him. Dr. A.K. Jain (PW-5) conducted the postmortem on the person of deceased Km. Bharti. On examination he found the following ante mortem injuries. 5 (i) Ligature mark 14 c.m. x 3 c.m. on the front side of the neck between cheek and larynx and along the side of mendible (lower jaw) going obliquely upward. There was a gap between left ear and the backside, which could be cause of the knot. (ii) Ecchymoses was found present. No external injury was found on the person of the deceased. On internal examination, the memberane of the brain were found congested. Larynx and trachea were found congested. Left and right lungs found congested and swollen. One di-section of the lungs froth with blood came out. Right ventricle was found full of blood while left ventricle was found to be empty. Oesophagus was congested. Semi digested food was found in the stomach. Small intestine contained digested food and large intestine contained faecal matter. Liver and Kidney were congested. As per the opinion of the doctor the cause of death was on account of Asphyxia by hanging. The death could have been caused one day prior to conducting of the postmortem. Ante mortem injuries on the person of deceased were sufficient to cause death. S.I. D. G. Tyagi (PW-6) conducted the investigation. Head Constable Kailash Chand Tyagi (PW-7) registered the F.I.R. and S.I. Rajesh Kumar Sharma (PW-8) also partly conducted the investigation. When examined under Section 313 Cr.P.C. the incriminating evidence was put to the accused, which he denied in toto and pleaded false implication. In defence the accused Manoj Kumar produced Rajesh as DW-1. We have heard Mr. S.K. Agarwal, learned Sr. Advocate assisted by Mr. Navneet Kaushik, learned counsel for 6 the appellant, Mr. Rajendra Singh, learned counsel for the complainant and Mr. S.S. Adhikari, learned A.G.A. for the State and having gone through the evidence and material available on record. Since there is no ocular evidence, therefore, the entire prosecution rests on circumstantial evidence. The prosecution relied on the following circumstances before the trial court:- (i) Last seen. (ii) Extra judicial confession. (iii) Injuries on the person of accused-Manoj Kumar. (iv) Absence of accused-Manoj Kumar from his house at the time of occurrence. (v) Medical evidence. Learned counsel for the appellant argued that testimony of Vinod Kumar Sharma (PW-2) who is alleged to have last seen the accused in the house of Ved Prakash Sharma around 11:00 a.m. is not at all reliable. Learned counsel for the appellant pointed out that initially father of the deceased informed the police that he found his daughter hanging from the iron angle of the roof with the bed sheet but introduced the story with regard to accused Manoj Kumar having murdered his daughter after two days of the occurrence. It is argued that it was in fact a simple case of suicide and not of homicide. The prosecution has concocted the entire evidence after due deliberation and consultation. Learned counsel further pointed out that the chain of circumstances brought on record is not so complete as to fasten the guilt upon the accused squarely. The presence of 7 Vinod Kumar Sharma (PW-2) at the time alleged by him or his having seen the accused at the house of the complainant cannot be relied, as there is no independent corroborative evidence to prove his presence there. It is pointed out that as per Vinod Kumar Sharma (PW-2), he went to Toma which is near Ambala on 24th August 1993 itself and came back on 26th August 1993 in the night. It is highly impossible and improbable that he would go straight from the bus stand to the house of Ved Prakash to disclose the fact that he had seen Manoj Kumar at his house. He further pointed out that Rajesh (DW-1) who is also resident of village Jhabiran, categorically stated that he had accompanied Vinod Kumar at the house of Ved Prakash on 24th August 1993. On the same day he as well as Vinod and many other persons had gone to Haridwar where the postmortem of the dead body was conducted. He further stated that they all stayed at Haridwar and the last rite of Masterji’s daughter was performed at Haridwar only. Learned counsel for the appellant further urged that if Vinod Kumar Sharma was present on 24th August 1993 itself at the house of Ved Prakash (PW-1), he would have certainly disclosed about his visit to his house at about 11:00 a.m. in the morning, however, he had actually not visited his house nor had seen the accused there. Learned counsel also attacked the testimony of Sanjay Kumar Sharma (PW-4) before whom the accused is alleged to have made extra judicial confession. He argued that the evidence of extra judicial confession should not be relied until and unless it is corroborated by some independent evidence. He pointed out that the evidence of Sanjay Kumar Sharma (PW-4) does not inspire confidence. It does not stand to reason as to why accused would go to Sanjay Sharma (PW-4) as there is nothing on record to show that the accused could repose confidence in Sanjay Sharma (PW-4). He pointed out that Sanjay Sharma (PW-4) joined the investigation 8 and was one of the signatory to memos prepared by the Investigating Officer. It appears that he was highly interested witness and was close to Ved Prakash, father of the deceased. He further pointed out that even Harinder Singh who is alleged to have been present alongwith Sanjay Sharma (PW-4) at the time of the alleged extra judicial confession having been made by the accused, has not been produced. Learned counsel for the appellant further pointed out that the injuries on the person of the accused could not be three or four days old. In case the injuries were caused at the alleged time of occurrence, the doctor would have noted the scab in the injuries. The injuries appear to have been later on manufactured on the person of the accused by the police in order to falsely implicate him. He pointed out that at the time of the arrest of the accused no injuries were noted in the general diary by the Investigating Officer. Learned counsel for the appellant further pointed out that even the medical evidence does not support the prosecution. No flesh and blood was found in the nails of the deceased and noted by the Investigating Officer in the inquest report, therefore, the causing injuries by the deceased on the person of the accused is not proved. It is further argued that in the postmortem report no injury except the ligature mark was found on the person of the deceased, which shows that no violence was practiced on the person of the deceased before her death, therefore, it is prima facie, a case of suicide. On the other hand Sri S.S. Adhikari, learned A.G.A. argued that the entire chain of circumstances to prove the guilt of the accused has been successfully proved by the prosecution. The extra judicial confession made before Sanjay Sharma (PW- 4) by the accused cannot be, by any stretch of imagination, said 9 to be unreliable. It is argued that Sanjay Sharma (PW-4) was Municipal Councellor (Nagar Adhyaksh) and member of Bhartiya Janata Party at the relevant time. He was running a medical store in the very close vicinity of Betal Shop run by the accused. In these circumstances, the accused could very well repose confidence in him. As the police was searching for him, he wanted someone influential to save him from the police. He further argued that the accused was found absent from his house at the time of the occurrence and the accused was arrested on the basis of a secret information after three days. Besides the above circumstances, the injuries found on the person of the accused, which were opined to be 3-4 days old by the doctor, coinciding with the time of occurrence. On careful consideration of the rival submissions and the material available on record, we find that the prosecution has been able to prove the complete chain of circumstances, which points out the finger of guilt towards the accused alone. The Court has to keep in mind that in cases where the evidence is of circumstantial nature, the facts from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of circumstances so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. In the present case, first of all, the testimony of Vinod Sharma who had seen the accused in the house of the complainant at about 11:00 a.m. on the date of occurrence 10 appears to be reliable and trustworthy. This witness is not related to complainant nor it is proved that he was inimically disposed towards the accused. He explained the reason of his visit to the house of ‘Masterji’. According to him, he had come alongwith Kushal Pal who wanted to enquire about the admission of his son for the matriculation examination. Though Vinod Kumar was known to Ved Prakash for the last about more than ten years but he categorically denied having any relationship with him. Their villages were only at a short distance i.e. about 3-4 kilometers. He was thoroughly cross examined by the defence counsel, however, nothing could be pointed out that this witness had any enmity with the accused who was also known to the witness. The testimony of Vinod Kumar Sharma (PW-2) is corroborated by the extra judicial confession having been made by the accused before Sanjay Sharma. Sanjay Sharma was the Municipal Councellor (Nagar Adhyaksh) at the relevant time. He belonged to the Bhartiya Janata Party and was certainly having influence over the police on account of the post he was holding at that time. The shops of the accused and Sanjay Sharma were in the very close vicinity. In these circumstances, it is quite possible that accused reposed confidence in Sanjay Sharma. He expected to have some respite at the hands of Sanjay Sharma as police was already in the look out for him. He had given a detailed account of the occurrence to Sanjay Sharma. According to him the deceased in order to save herself had scratched his face as well as she had bitten on his left arm. The injuries having been suffered by the accused on his face and left arm is fully corroborated by the medical evidence. As per the testimony of Dr. M.D. Ojha, the accused was having several abrasions on both sides of his face. Injury no. 3 on his left hand as on account of mouth bite, which was having teeth impression. 11 The argument of the learned counsel for the appellant to the effect that the injuries on the person of accused could have been manufactured on the date of his arrest as on medical examination scab was not noted by the doctor on the abrasion. This argument cannot be accepted. The clotted blood was found over the abrasion and it may be possible that the doctor inadvertently did not mention the scab having developed over the abrasion. Such inadvertent mistakes have to be ignored as these do not go to the root of the case. The sequence of occurrence narrated by the accused is fully supported from the fact that the abrasions could have been caused by scratching by the deceased in order to save her from the clutches of the accused. The Investigating Officer might not have checked the nails of the deceased while preparing the inquest report. The mere inadvertence on the part of the Investigating Officer and the medical officer cannot override the fact that the accused was having the abrasions on his face and an impression of mouth bite on his left hand. In order to rebut the medical evidence against the accused, he has not been able to give any explanation with regard to the injuries found on his body. It is not possible that the accused would allow the police or any body else to manufacture these injuries on his body. The prosecution has been able to prove the complete chain of evidence i.e. the extra judicial confession made before Sanjay Sharma wherein the accused has narrated the detail account of the occurrence, which is fully supported by the last seen evidence of Vinod Kumar, the injuries on the person of the accused caused by the deceased during the course of occurrence, absence of the accused from his shop and house from the date of occurrence. 12 Learned counsel for the appellant further pointed out that from the ligature mark and the hyde bone having been broken, it is clearly a case of suicide by hanging. We are unable to accept the argument raised by the learned counsel for the appellant. The facts of present case is quite different and unusual. In the extra judicial confession the accused clearly stated that when he pressed throat of the deceased with his hand, the deceased Bharti became unconscious on account of the pressure of his bangle (Kada). He thought that Bharti died and in these circumstances, he tried to give it a colour of suicide by hanging her body with the help of the bed sheet on the fan hanging on the roof. He made her sit on the stool placed on the bed and hanged her body with the help of a bed sheet and thereafter removed the stool beneath her. It is quite possible that Bharti was in the state of unconscious when accused hanged her with the fan. She died on account of asphyxia by hanging and in the process hyde bone was broken as well as ecchymoses also occurred. We are fully convinced with the evidence on record, which is pointing out finger of guilt towards the accused and none else. In view of the above discussion, we do not find any ground to interfere with the judgment and order passed by the learned trial court and find no merit in the appeal and the same is dismissed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 17.03.2010