DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {1} IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: CHAMPA VS. STATE OF RAJASTHAN D. B. Criminal Appeal No.623 of 2004 against the judgment dated 03.06.2004 passed by the learned Additional Sessions Judge (Fast Track), Bali in Sessions Case No.52/2003. And D. B.Crmnl Jail Appeal No.759 of 2004 **** Date of Judgment :::: 15 July, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Shambhoo Singh, for the appellant. Mr. AR Nikub, Public Prosecutor. By the Court(per Hon'ble Joshi,J.) This order will decide D.B. Criminal Appeals No. 623/2004 and 759/2004 against the judgment dated 03.06.2004 of Additional District and Sessions Judge (Fast Track), Bali passed in Sessions Case No. 52/2003. Out of these appeals, Appeal No.759/2004 has been preferred by the appellant as Jail Appeal and Appeal No. 623/2004 has been preferred as representative appeal. The brief facts of the case are that on 02.03.2003, PW-3 Sava Ram lodged a report Ex.P/16 in Police Station Nana that his house is situated in Selto Ki Phali and he used to work at Chamunderi and at his residence, his wife resides with his sons DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {2} and daughters. On 27.02.2003, in the evening, his daughter Champi aged about 9 years, along with another daughter Singri aged about 11 years, after taking their meals, went to Ven Field for playing with other children. While Champi was playing in the field with the other children, accused-appellant Champa came there, took her from there near a tree of “borli”. Later on, he went along with Champi near the hand-pump. Jagga Ram S/o Shri Mansa Ram, Singri D/o Sava Ram and Megi D/o Waga Ram saw Champa taking Champi towards the hand-pump and this fact was also seen by Deva S/o Gaja Ram and Bhera S/o Navaji. In the night, his daughter Champi did not return to home. His family members thought that Champi might have slept at any place but on the second day also, Champi did not return to home, then his wife started to search her and on being inquiry Jagga Ram, Singri and Megi told her about the fact of taking Champi by Champa. They also inquired from Champa but he refused to see Champi anywhere. On dated 01.03.2003, in the night at about 8.00 pm, dead body of his daughter was found in the field of Vagta Ram and no cloth was found on her body and there were injuries on the face and other parts of the body and the dead body was covered with big stones. His daughter Champi was kidnapped/abducted by accused-appellant Champa on 27.02.2003 in the night from the Ven Field and after committing rape with Champi, she was caused to death by stones. On this report, FIR No.34/2003 under Sections 363, 366-A and 376(2)(F) IPC was registered and investigation commenced. DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {3} During the course of investigation, accused-appellant Champa was arrested. Statements of witnesses were recorded by the Investigating Officer. Autopsy was conducted on the body of the deceased. Medical examination of the body of accused-appellant Champa was conducted for determining sexual capability. Information under Section 27 of the Indian Evidence Act was recorded by the Investigating Officer and on the basis of that information, the clothes, which were worn by deceased Champi were recovered and after usual investigation, charge-sheet under Sections 363, 366, 376(2)(F) and 302 IPC was presented in the court of Civil Judge (SD), Bali from where the case was committed to the Court of Additional District & Sessions Judge, Bali and further the case was transferred for trial to the court of Additional District & Sessions Judge (Fast Track), Bali. The learned trial court charged the accused-appellant for the commission of offence of Sections 363, 366, 376(2)(F) and 302 IPC. The accused-appellant did not plead guilty and claimed to be tried. The prosecution examined as many as 14 witnesses, namely, PW-1 Ratan Singh, PW-2 Megha, PW-3 Sava Ram, PW-4 Deva Ram, PW-5 Soma, PW-6 Dr. Mahendra Kumar Dabi, PW-7 Deva Ram, PW-8 Meghi, PW-9 Niranjan Pratap Singh, PW-10 Puna, PW-11 Madho Singh, PW-12 Dashrath Singh, PW-13 Sumer Singh and PW-14 Kishanlal. The incriminating evidence as adduced by the prosecution was put to accused for explanation under Section 313 Cr.P.C. and the accused-appellant examined no evidence his defence. DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {4} The learned trial court framed the following points for consideration and for deciding the above referred sessions case:- (1)Whether accused Champa kidnapped deceased Champi from the lawful possession of father of Champi without his consent? (2)Whether accused appellant kidnapped Champi with the intention of committing rape with her? (3)Whether accused-appellant committed rape with deceased Champi? (4)Whether accused-appellant, on the same date, place and time, while inflicting the injuries on her head, chest, shoulder and other parts of the body, caused death of deceased Champi? The learned trial court, while appreciating the evidence adduced by the prosecution, decided all the above four points in favour of the prosecution and found the accused-appellant guilty of the offence under Sections 363, 366, 376(2)(F) and 302 IPC and sentenced him as under:- (i) Section 302 IPC Life Imprisonment and Rs.3,000/- as fine and to further undergo six months' rigorous imprisonment in default of payment of fine. (ii) Section 376(2)(F) IPC 10 years' rigorous imprisonment and Rs.2,000/- as fine and to further undergo three months' rigorous imprisonment in default of payment of fine. (iii) Section 366 IPC 7 years' rigorous imprisonment and Rs.1,000/- as fine and to further undergo two months' rigorous imprisonment in default of payment of fine. (iv) Section 363 IPC 3 years' rigorous imprisonment and Rs.500/- as fine and to further undergo one month's rigorous imprisonment and in default of payment of fine. DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {5} The learned trial court further ordered to serve the above sentences concurrently. Learned counsel for the accused-appellant, while assailing the judgment of the learned trial court vehemently argued that the learned trial court convicted the accused-appellant relying upon the circumstantial evidence available on record. He further argued that there is no eye witness of the commission of the offence and the learned trial court also not appreciated the fact of delay in lodging the FIR. The counsel for the accused- appellant argued that delay in lodging the FIR has not been reasonably explained by the prosecution. The learned counsel for the accused-appellant also argued that so far as the circumstantial evidence is concerned, the prosecution could not constitute an unbroken chain leading towards infallible conclusion of guilt of the accused because the dead body of the deceased Champi could not be found for two days and meanwhile, the dead body was completely decomposed and the evidence of rape as produced by the prosecution cannot be relied upon. The learned counsel for the accused-appellant also contended that there is a complete lack of motive in the evidence produced by the prosecution and in absence of the proved motive, the conviction of the accused-appellant is not sustainable and thus deserves to be set aside. Per contra, learned Public Prsecutor vehemently defended the judgment of the learned trial court and argued that PW-1 Sava Ram, who is the father of deceased Champi, was out of DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {6} station at the time of the incident and he deposed in his evidence that at the relevant time he was at Chamunderi on duty and his wife came there and informed him that his daughter Champi is untraceable and then he immediately rushed to his residence and he inquired from his brother's son Jagga Ram who told him that Champi went with accused-appellant Champa, then he went to the accused-appellant's house. The accused-appellant refused regarding the whereabouts of Champi. PW-1 Sava Ram further deposed that then he started to search Champi in other places and ultimately he found the dead body of Champi and there were large stones lying on the dead body of the deceased. Then, he reported the matter to the police through FIR Ex.P/16. As per the contentions of the learned Public Prosecutor, the delay in lodging the FIR was well explained and so far as the motive is concerned, the medical evidence very well established the fact of commission of the offence of rape with Champi and the motive for committing the rape is itself sufficient ground for upholding the judgment of conviction of the learned trial court. The learned Public Prosecutor argued that there is reliable evidence on the record regarding the last seen circumstance against the accused-appellant and the prosecution has proved each essential circumstance by leading the trustworthy evidence of PW-7 Deva Ram PW-8 Meghi which lead to infallible conclusion of the guilt of the accused. During the course of arguments, learned counsel for the accused-appellant also argued that two witnesses, named in the FIR as the eye witnesses, had not been examined by the DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {7} prosecution and non-examination of Singri D/o Sava Ram is fatal for the prosecution to prove the guilt of the accused. We have considered the rival contentions argued by both the parties. As per the record available, PW-1 Ratan Singh is the witness of only sending the samples to the Forensic Science Laboratory and he proved the receipt Ex.P/3 of the sealed articles. PW-2 Megha deposed that police prepared the site memo Ex.P/4 in-front-of him and further he admitted that Ex.P/4 bears his signature. He also deposed about the execution of memo Ex.P/6, Ex/P/7, Ex.P/8, Ex.P/9, Ex.P/10 and Ex.P/11 and arrest memo of the accused-appellant Ex.P/12 and the recovery of the clothes of the deceased Champi Ex.P/13 and further he proved the execution of memo Ex.P/14 and Ex.P/15. PW-3 Sava Ram is the father of the deceased, who after searching Champa, lodged FIR Ex.P/16 in the police station. As per his statement, on the date of incident, he was on duty at Chamunderi and his wife came there and informed him about the disappearance of Champi. Then, he came and inquired from Jagga Ram who told him that Champi went with Champa. PW-4 Deva Ram is the witness before whom Investigating Officer prepared the memo of injuries found on the dead body of Champi and blood stained soil and simple soil samples were collected and a button and coin of Rs.2/- were taken in possession by the Investigating Officer. DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {8} PW-5 Soma is the witness of memo of panchnama of dead body Ex.P/7. PW-6 Dr. Mahendra Kumar Dabi deposed about the examination of the injuries on the body of the deceased as well as regarding the fact of autopsy conducted by him. As per his statement, the external injuries, which were found on the body of the deceased were as under:- (i)Lacerated wound – 2 ½ inch X 2 ½ inch X ½ inch, over antero superior aspect of left shoulder. (ii)Lacerated would – 2 inch X 2 ½ inch X ½ inch, over left lateral aspect left groin. (iii)Lacerated wound – 3 inch X 2 ½ inch X Bone deep, over left temporal region of head. Underlying temporal bone fractured. (iv)Left parietal bone also fractured. Effused blood present outside the fracture. (v)Brain matter underlying the fractured bone (parietal and temporal) is severely congested and lacerated at placed. (vi)Meninges are also congested and blood stained and torn at the site of fracture. On external and internal genital examination, the following injuries were found on genital parts of the deceased Champi :- [A] External genital examination : (i) Pubic hair absent (ii) Labia majora swollen (iii) Labia minora swollen and congested (iv) Clitoris swollen and congested (v) Forchette swollen and congested (vi) Perineal tear present, size 1cm x 1cm [B] Internal genital examination : (i) Hymen – ruptured and lacerated at multiple places (ii) Internal region of vagina deeply congested and multiple lacerations and tears present, clotted blood also present. Vaginal swab taken for chemical analysis for presence of spermotozoa DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {9} As per evidence deposed by P.W.6 Dr. Mahendra Kumar Dabi, injuries were ante-mortem in nature and the cause of death was shock due to injury on vital part of body (brain). P.W.6 Dr. Mahendra Kumar Dabi further deposed that in the opinion of Medical Board, rape was committed with the deceased Champi. This witness also deposed that he also examined potency of the accused Champa and he was found capable of sexual intercourse. The evidence of P.W.6 Dr. Mahendra Kumar Dabi remained unshattered even in the cross-examination. PW-7 Deva Ram is also a witness who saw the deceased with Champa at 9.00 PM near the hand-pump and he also deposed about the fact that later on he saw the dead body of deceased Champa and there were injuries on chest, stomach and private parts of Champi. PW-8 Meghi deposed about the fact of last seen as she deposed that in the night, when the children were playing in the farm, accused Champa came there and took Champi with him. PW-9 Narsingh Pratap Singh is the Investigating Officer. PW-10 Puna is the photographer. PW-11 Madho Singh is also the Investigating Officer. PW-12 Dashrath Singh is also the Investigating Officer who conducted the investigation as Circle Officer of the area. PW-13 Sumer Singh was at the relevant time, in-charge of the Malkhana of the Police Station, Nana. PW- 14 Kishanlal is the witness who brought the samples to the FSL and brought the receipt of the malkhana articles in the police station. DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {10} Accused-appellant, in his examination under Section 313 CrPC, stated the prosecution evidence is false and further he narrated that he did not commit crime and he was falsely implicated. We have scanned and evaluated the evidence available on record in the light of the arguments made by both the parties. From the evidence on record, it is admitted fact that the offence was committed on dated 27.02.2003 and the dead body of the deceased Champi was recovered on 02.02.2003. As per statement of PW-3 Sava Ram, when his wife came at Chamunderi, he immediately rushed to his village and started to search his daughter Champi but he could not find and later on 02.03.2003, her dead body was found in the field. As per prosecution story, there is no eye witness in this case who saw the accused-appellant committing rape as well as murder but there is circumstantial evidence against him and as per the evidence available on record, there are three sets of circumstantial evidence; (i) the accused was seen by PW-8 Meghi, while he was taking deceased Champi from the field where the children were playing; (ii) he was seen in the night at 9.00 PM by PW-7 Deva Ram near the hand-pump when he was taking Champi with him; and (iii) recovery of shirt and half-pant of deceased as per the information recorded under Section 27 of the Indian Evidence Act. So far as the first and second circumstantial evidence are concerned, PW-7 Deva Ram and PW-8 Meghi are the concerned witnesses who had been examined by prosecution. Out of these DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {11} witnesses, PW-8 Meghi deposed that when they were playing in the field, accused-appellant Champa came over there and took Champi from the field and PW-7 Deva Ram deposed that in the night at about 9.00 PM, he saw the accused with deceased Champi near the hand-pump. We have examined the cross- examinations of these witnesses and there is no contradiction or infirmity in the statements of these two witnesses and their presence at the relevant time at the place shown in their statement was natural and further there is no contradiction in their statements to the story as adduced by the prosecution during trial. Therefore, in our considered view, the evidence against the accused-appellant regarding seeing the deceased Champi last with the accused-appellant Champa is well established. So far as the third circumstantial evidence is concerned, we have pondered over the contention of the learned counsel for the accused-appellant but the recovery of clothes, which were worn by deceased Champi, at the instance of the information given by the accused-appellant under Section 27 of the Indian Evidence Act, is proved by the Investigating Officer and that had been corroborated by independent witness PW-2 Megha. The basic principle for basing the conviction solely on circumstantial evidence is that the inference of guilty can be justified only when all incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person. Circumstances from which inference of guilt of accused is to be drawn, has to be proved beyond reasonable DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {12} doubt and have to be shown to be closely connected with principle fact sought to be inferred on those circumstances. It is the cardinal principle of criminal jurisprudence that to convict an accused on the basis of circumstantial evidence, the prosecution has to prove each essential circumstance by leading trustworthy evidence and the circumstances so proved, must constitute an unbroken chain leading towards infallible conclusion of guilty of the accused. In this case, during the course of trial, the prosecution examined two witnesses regarding the fact of last seen of deceased with the accused-appellant and so far as motive of the accused-appellant to cause death of deceased Champi is concerned, it can very well be inferred from the fact that before causing the death of deceased Champi, the accused-appellant committed rape with Champi and the fact of committing rape had been corroborated by the evidence of Dr. Mahendra Kumar Dabi PW-6. Therefore, the contentions of the learned counsel for the accused-appellant does not sustain and the evidence produced by the prosecution during the course of trial does inspire the faith and appears to be trustworthy. So far as the lodging of the FIR with three days' delay is concerned, it is admitted fact that the incident took place on 27.02.2003 and on the next day, mother of deceased Champi went to her husband, informed about missing of Champi and for two days Champi was searched by her father and soon after finding the dead body on the next day, PW-3 Sava Ram informed the police and lodged the FIR in the concerned police station. DB Criminal Appeal No.623/2004 [Champa Vs. State of Rajasthan] {13} Therefore, no inordinate delay can be said to have been occurred in filing the FIR in the concerned police station. Regarding the non-examination of the witnesses named in the FIR, it is well-settled principle of law that it is quality of evidence which is important and not the quantity of evidence. Moreover, this is not a case of substitution of partisan witnesses in place of any independent witnesses, therefore, non- examination of witnesses named in the FIR does not affect the trustworthiness of the prosecution story. In view of the aforesaid discussion made and in the entirety of the facts and circumstances of the case, the prosecution has proved the charges levelled against the accused- appellant and, therefore, the judgment of the learned trial court does not suffer from any infirmity or illegality and it deserves to be affirmed. Accordingly, the judgment of conviction and order of sentence of the accused-appellant Champa under Sections 302, 363, 366 and 376(2)(F) IPC is affirmed and the appeals filed against the judgment and order dated 03.06.2004 passed by the learned Additional Sessions Judge (Fast Track), Bali in Sessions Case No.52/2003 deserves to be dismissed. Accordingly, the Appeals No. 623/2004 and 759/2004 are dismissed. [Kailash Chandra Joshi],J. [Prakash Tatia],J. /skm/