COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [CHAPTER VIII, RULE 32(2)(b)] Description of the case. (1) Criminal Appeal no. 210 of 2004 Pawan S/o Nandan Singh Mer R/o Ritha P.O. Mukteshwar Patti Satboong, at present R/o Tulsi Nagar C/o Vijay Singh Haldwani, District Nainital. … Appellant. Vs. State of Uttaranchal … Respondent. (2) Criminal Appeal No. 215/2004 Aamir S/o Hamid Ali, R/o Mohalla Sahukara , Town and P.S. Bilaspur, District Rampur ( U.P.) .. Appellant. Vs. State of Uttaranchal … Respondent. (3) Criminal Appeal No. 216/2004 1. Babu S/o Aleem Ansari R/o Dadon P.S. Dadon District Aligarh ( U.P.) 2. Arjun S/o Bala Singh R/o Kasba Mela Ghat Road P.S. Khatima, District Udham Singh Nagar … Appellants. Vs. State of Uttaranchal .. Respondent. (4) Criminal Reference No.6 of 2004. A.F.R. (Approved for reporting) Not approved for reporting. ( Hon’ble Mr. Justice Irshad Hussain) ( Hon’ble Mr. Justice B.S. Verma) Date 12-07-2005 In the High Court of Uttaranchal, at Nainital. (1) Criminal appeal No. 210 of 2004 Pawan S/o Nandan Singh Mer R/o Ritha P.O. Mukteshwar Patti Satboong, at present R/o Tulsi Nagar C/o Vijay Singh Haldwani, District Nainital. … Appellant. Vs. State of Uttaranchal … Respondent. Sri Navneet Kaushik, Sri Kailash Joshi, learned counsel for the appellant. Sri D.K.Sharma, learned G.A. assisted by Sri Amit Bhatt, learned A.G.A. (2) Criminal Appeal No. 215/2004 Aamir S/o Hamid Ali, R/o Mohalla Sahukara , Town and P.S. Bilaspur, District Rampur ( U.P.) .. Appellant. Vs. State of Uttaranchal … Respondent. Sri Sudhir Kumar, learned counsel for the appellant. Sri D.K.Sharma, learned G.A. assisted by Sri Amit Bhatt, learned A.G.A. (3) Criminal Appeal No. 216/2004 (1) Babu S/o Aleem Ansari R/o Dadon P.S. Dadon District Aligarh ( U.P.) (2) Arjun S/o Bala Singh R/o Kasba Mela Ghat Road P.S. Khatima, District Udham Singh Nagar … Appellants. Vs. State of Uttaranchal .. Respondent. Sri S.P.S. Panwar, Senior Advocate, assisted by Sri H.C. Pathak, learned counsel for the appellants. Sri D.K. Sharma, learned G.A. assisted by Sri Amit Bhatt, learned A.G.A. (4) Criminal Reference No. 6 of 2004 Coram: Hon’ble Irshad Hussain, J. Hon’ble B.S. Verma, J. Dated: 12-07-2005 (Per: Hon’ble Irshad Hussain, J.): These three criminal appeals under Section 374 (2) of the Code of Criminal Procedure ( for short ‘Code’) from convictions of the four accused and criminal reference under Section 366 of the ‘Code’ for confirmation of sentences of death of all of them arise out of the judgment dated 28-6-2004 passed by Sri G.K. Sharma, Additional Sessions Judge/Fast Track Court, Nainital in Sessions Trial No. 166/2003. 2- Brief facts of the case are as follows:- Victim of the case Km. Sushma aged about six years was the daughter of informant Amar Sing Bisht ( P.W.4) a migrant labourer from Nepal residing in the locality known as ‘Rajmahal’ Hotel Compound’ Mallital, Nainital. She went missing since 8 A.M. on 25-9-2003 when she left her home to ease herself. Her search by the informant and others did not yield any result till night. According to the prosecution the informant along with his three acquaintants namely Veer Bahadur ( P.W.2), Puran ( P.W.3) and Mangal ( P.W.5) residents of the same locality deiced to sit awake in that locality during the night with a hope that the girl may be found on her return or to be brought there by other in the night. At about 1.00 or 1.30 A.M. ( in the night) four person were seen coming from the side of the road right up to the vacant plot of Sardar Ji in that locality. These four person were seen throwing the dead body of the girl from gunny bag in the said plot. When they were returning after doing the said job they were arrested by the informant and his companions by raising alarm. There arrested persons disclosed their names as Babu, Amir, Pawan and Arjun and all of them were stated to have made extra-judicial confession of their involvement in the commission of crime of rape, carnal intercourse, murder and causing disappearance of evidence by disposing of the dead body of the victim in the said plot. They were then taken to the police station P.S. Mallital, Nainital where the informant lodged the written report, Ext. Ka.3, on the basis of which check F.I.R., Ext. Ka.11 was drawn at 2 A.M. on 26.9.2003 to register a case under Sections 302, 201, 34 I.P.C. against these four accused, vide G.D. Report No. 2, Ext. Ka.12. 3- Investigation of the case was taken up by S.H.O. Sri Bachan Singh Rana ( P.W.11) in whose presence the case was registered. After completing the initial formalities at the Police Station he left for the place where the dead body was thrown by the accused and on reaching there inspected the site. Inquest was held on the dead body of Km. Sushma at 6.30 A.M. and inquest report, Ext. Ka.2 ( also referred and proved by P.W.4) was then prepared. The dead body was packed and sealed in a packet and was dispatched for post mortem along with relevant documents including that of the inquest. The post mortem was conducted the same day, that is, 26.9.2003 at 1.05 P.M. by Dr. K.S. Dhami (P.W.1). From the police station accused were sent for medical examination. However injury report of accused Pawan was filed on record on the trial. Investigating Officer attached the relevant items from the site. The Investigating Officer on his return to the police station examined accused persons and on the disclosure statement of accused Babu and Aamir recovered a two feet long electric wire of yellow colour from the room of the house of Ramesh Moonga situate near the Sanwal School and where accused were then residing, vide memo, Ext.Ka.6-A. The wire was stated to be used by the accused to strangulate the victim by neck to commit her murder. The under wear of the accused were attached on 27-9-20063 while they were in District Jail, Nainital, vide memo, Ext. Ka.6 and these were sent for chemical examination. The accused volunteered to have their confession recorded by finally only accused Ameer agreed to it and accordingly his statement under Section 164 of the ‘Code’ Ext. Ka.7, was recorded on 7-10-2003 by Sri Mahendra Kumar Joshi ( P.W.8), Special Judicial Magistrate, who was also then incharge Chief Judicial Magistrate, Nainital. As per the report of the Chemical Examiner of the Government Lab, Agra, Ext. Ka.22 human semen and spermatozoa were detected all the four under wears of these accused and also on the Paijama of the victim. Human blood was found and the clothes of the victim only. On completion of the usual formalities of the investigation, charge sheet, Ext. Ka. 21 was submitted against these accused on 1.11.2003. Accused on being committed to the court of Sessions faced the trial. 4- Prosecution in order to bring home guilt to the accused relied upon the evidence of eleven witnesses. P.W.1, Dr. K.S. Dhami held autopsy on the dead body of Km. Sushma at 1.05 P.M. on 26-9-2003 and prepared the autopsy report, Ext. Ka.1. He observed following abnormal features in the dead body and ante-mortem injury:- Labia-majora were separated. Hymen ruptured. Reddish secretion was present inside the vagina. Rectum-had laceration and abrasion around the external region. On separation of gluteal fold large rectal canal was visible, which was dilated. The spinsters were damaged and there was blood in the anal canal. Mucosa was also damaged. ( Rectal and vaginal smear were taken for test ). There was well defined ligature mark on the upper part of neck slightly depressed and encircling the neck horizontally and completely. Colour was reddish and margins were ecchymosed. On dissection of ligature mark there was extravession of blood in to the sub cutaneous tissue under the ligature mark as well as adjacent structures. Cyanosis present over the face, lips and ears. 5- On internal examination larynx and trachea was found congested and there was bloody forth present. Lungs were congested. Right chamber of heart was full of blood whereas left chamber was empty. In the opinion of the Medical Officer death occurred about half to one day ago due to asphyxia as a result of strangulation. He also opined that the rape and unnatural intercourse with the victim and thereafter, her death was caused some time between 8 A.M. to night hours of 25/26.9.2003. 6- P.W.2, Veer Bahadur; P.W.3 Puran; P.W.4 informant Amar Singh and P.W.5 Mangal are the witnesses of the fact that the appellants were seen throwing the dead body of the victim where-after these appellants were arrested and were brought to the police station. The appellants are stated to have confessed their guilt before these witnesses of the fact as soon as they were arrested near the place where the dead body was thrown, P.W.6, Girija Shankar Yadav is Deputy Jailor, District Jail, Nainital and he gave evidence regard attachment of under-wears of the four accused while they were in the jail on 27-9-2003 vide memo, Ext. Ka.6. P.W.7, Vishnu is one of the Panch witness of the inquest and also of recovery of electric wire on the disclosure statements of accused Babu and Aamir. P.W.8, Sri Mahendra Kumar Joshi was posed Special Judicial Magistrate, Nainital on 7.10.2003 and on that day he recorded the confessional statement under Section 164 of the ‘Code’ of accused Aamir. P.W.9, Constable Mohammad Lal and P.W.10, constable Brijpal Sharma formally proved the relevant G.D. entries pertaining to the registration of the case and also the report, Ext. Ka.10 and check F.I.R. of the case, Ext. Ka.3 P.W.11, Inspector Bachan Singh Rana is the Investigating Officer of the case and he proved relevant documents prepared in the course of the investigation of the crime. 7- Accused pleaded not guilty and contended that they have been falsely implicated in the case by the police. They urged that they were picked-up by the police and were not arrested by the witnesses from near the place of the alleged recovery of the dead body of the victim and that their under-wears were not attached by the police. No evidence in defence was adduced. 8- As is evidence, the case of the prosecution rests on circumstantial evidence. The learned Sessions Judge on the basis of his appreciation of the evidence on record came to the conclusion that complete chain of circumstances establish beyond reasonable doubt that all the four accused and none else committed rape, carnal intercourse on the victim Km. Sushma and thereafter in pursuance of their common intention committed her murder and to screen themselves from legal punishment disposed of the dead body at the plot from where they were arrested and they were accordingly held guilty, convicted and awarded death sentence under Section 302/34 I.P.C.; life imprisonment under Section 376 I.P.C. life imprisonment and fine of Rs. 1000/- each under Section 377 I.P.C. and in default of payment of fine to suffer further imprisonment of six months and seven years R.I. and fine of Rs. 2000/- each under Section 201.34 I.P.C. and in default of payment of fine to suffer further imprisonment of six months R.I. per judgment dated 28-6-2004, which is under challenged in these appeals. 9- According to the learned Addl. Sessions Judge, following seventeen incriminating circumstances were satisfactorily established by the evidence of the prosecution:- (1) Km. Sushma deceased, the daughter of informant Amar Singh ( P.W.4) left her house to ease herself at about 8 A.M. on 25-9-2003. (2) Km. Sushma thereafter did not return to her house and whole day’s search for her whereabouts did not prove fruitful. (3) The same day missing report, Ext. Ka.10 was lodged at the police station some time in the evening between 4 P.M. to 8 P.M. (4) In the night between 25/26-9-2003 when the informant and others were out side their residential premises with a hope that Km. Sushma may return or she may be brought there by some-one, these accused were at about 1.30 in the night, seen coming towards the vacant plot of Sardar Ji with a gunny bag where they threw the dead body of Km. Sushma (5) The four witnesses namely, Veer Bahadur, Puran, Amar Singh and Mangal then raised alarm and apprehended all the four accused at that spot. (6) That these accused on being arrested made extra-judicial confession of their guilt before the witnesses. (7) The arrested accused were then taken to the police station and F.I.R. was lodged. (8) A piece of wife said to have been used to strangulate the victim by neck was recovered on the disclosure statements and at the instance of accused Aamir and Babu. (9) The under-wears of the accused was attached on being removed from their person in the jail and chemical examination report affirmed that these were found stained with human semen and spermatozoa. (10) One of the accused Aamir confessed his guilt before a Judicial Magistrate. (11) The medical evidence support the prosecution case that before murder Km. Sushma was subjected to rape and carnal intercourse. (12) The medical evidence further indicate that the offences of rape, carnal intercourse and murder in all probability were committed by more than one culprits. (13) Witnesses of the fact Veer Bahadur, Puran, Amar Singh and Mangal were not having any grudge and enmity against the accused and further that these witnesses were not maintaining any special relations with the police and it was highly improbable that they could have falsely implicated the accused in the case. (14) The accused failed to give any explanation as to how the dead body of Km. Sushma came in to their possession and the circumstance that they were found disposing of the dead body make out a strong incriminating circumstance of their involvement and participation in the commission of the crimes. (15) The fact that the victim was subjected to rape and carnal intercourse itself indicate the mental bent up of mind of the accused and further the motive to commit her murder and then attempt to dispose of her dead body surreptitiously to screen themselves from legal punishment. (16) Confirmation of presence of semen and spermatozoa on the under wears of these accused. (17) Taking of vaginal and anal/rectal smear of the victim and the confirmation of human blood, human semen and spermatozoa in it by the expert. 10- Learned Senior Advocate, Sri S.P.S. Panwar, and other learned counsel for the accused argued at length and not only assailed the inferences drawn by the learned Additional Sessions Judge in regard to the above mentioned incriminating circumstances but also submitted that the entire trail stand vitiated on account of the accused having been denied the opportunity to exercise their statutory right to be defended by a pleader as is the mandate of the Constitution of India and as envisaged by Section 303 as well as Section 304 of the ‘Code’ and also by reason of the fact that the counsel appointed under Section 304 of the ‘Code’ to defend the two accused was not given fair opportunity to prepare and conduct the case effectively on their behalf. Learned Senior Advocate also argued that a competent lawyer was not appointed by the learned Additional Sessions Judge to defence the accused despite the fact that the offence with which the accused were charged was punishable with capital punishment and the learned Additional Sessions Judge thus failed to gauge the importance and gravity of the case in legal and proper perspective while providing the lawyer at the expense of the State. On the other hand learned G.A. persuasively submitted that no prejudice whatsoever was caused to the accused by reason of an aberration in compliance of the legal provisions and further that the evidence of the prosecution was analyzed in a proper legal background to see as to whether or not the incriminating circumstances which emerged in the case stand proved satisfactorily. According to him the findings of guilt was recorded on legal and admissible evidence and on the basis of complete chain of incriminating circumstances formed to establish beyond reasonable doubt the involvement of the accused in the commission of the crimes and that the murder having been committed in a ghastly and gruesome manner, the capital punishment was rightly awarded in the case. 11- In regard to the submission that the trial stand vitiated for want of compliance of the constitutional mandate as well as the legal provisions it need to be stated that the accused were committed to the court of Sessions on 20-12-2003 by the C.J.M., Nainital and when the accused were brought before the court of Sessions in pursuance of the commitment if the case date for framing of the charge was fixed by the Sessions Judge, Nainital. The date fixed for the purpose was 2.3.2004. Before this date the sessions trial was transferred to the court of Additional Sessions Judge/ I F.T.C., Nainital for disposal according to law and on receipt of the record this transferee court fixed 16-3-2004 for framing of the charge. This Additional Sessions Judge took up the case for this purpose on 16-3-2004 and in the presence of all the four accused framed charges against them for the offences as mentioned above and for the commission of which the accused were later on convicted. The order sheet of the said date does not reflect the presence of the defence lawyer or even the public prosecutor before the learned Additional Sessions Judge and perhaps the charges were framed after perusal of the documents of the prosecution without referring that the Judge was of the opinion that there were grounds for presuming that the accused have committed offences which are exclusively triable by the court as envisaged by Section 228 of the ‘Code’. Record also reveal that till that date neither the accused have engaged their own lawyer nor they were provided with a defence lawyer at the expense of the stated as provided under Sections 303 and 304 of the ‘Code’. The learned Additional Sessions Judge however after framing the charges and making an endorsement that the accused pleaded not guilty and claimed to be dried. Fixed 24-3-2004 for recording of the evidence of the prosecution and directed the prosecution witnesses to be summoned. On 24-3-2004 A.D.G.C. (Criminal) moved an application for adjournment of the trial in view of the prosecution witnesses having not been served with summons and on his prayer the trial was adjourned to 7.4.2004 for recording of the evidence of the prosecution. However no lawyer was appointed on this date also as Amicus Curiae for the accused. On 7.4.2004, as is evident from the record and the order sheet of the said date, three prosecution witnesses, P.W.1, P.W.2, and P.W.3 were examined by the prosecution, and on the same day Sri M.A. Khan, Advocate was appointed Amicus Curiae. The Amicus Curiae cross examined all these three witnesses on behalf of two accused Babu and Aamir only which indicate that only these two accused were provided the Amicus Curiae by the learned Additional Sessions Judge. The witnesses were cross-examined by a lawyer on behalf of other two accused Pawan and Arjun which indicate that they have engaged the lawyer of their choice after the charges against them have already been framed in the trial. 12- There can be no doubt that although the charge were framed against the accused on 16-3-2004 without the accused being represented by their counsel and without recording of the satisfaction of the Judge that there are grounds for presuming that the accused have committed the offences with which they were being charged as envisaged by Section 228 of the ‘Code’, but we are of the considered view that there was enough evidence and material available on record at that time to form an opinion that there was sufficient ground for proceeding against the accused. The reason being that at the stage of framing of the charge the Judge is not required to enter in to detailed scrutiny and consideration of the material and evidence which is available in the form of the record of the investigation or the documents submitted with the charge sheet and therefore as the allegations stated against the accused supported by the collected evidence even the above infraction in the compliance of the legal provision do not indicate any prejudice having been caused to the accused and in a situation like this the above aspect would not entail vitiate of the entire trial against the accused. 13- Amicus Curiae to the two accused in the case was provided on the day, that is, 7.4.2004 when three prosecution witnesses were examined in the trial. Sri M.A. Khan, Advocate was appointed Amicus Curiae for the two accused and he proceeded to cross- examine all the three witnesses on that date itself. Learned Senior Counsel Sri Panwar submitted that a duty is case of Sessions Judge to see that raw and inexperienced juniors are not appointed to defend an accused in capital punishment cases and in support of the argument learned counsel pressed in to service the reported decisions Panchu Gopal Das vs. State; A.I.R. 1968 Cal. 38, and Mohd, Kunnumal vs. State of Kerala; A.I.R. 1963 Ker. 54. The argument was advanced on the assumption that the Amicus Curiae appointed by the learned Additional Sessions Judge was an inexperienced Advocate. But we find nothing on record to sustain the submission made in that behalf. It appear that Sri. M.A. Khan, Advocate was practicing in criminal side in the Sessions Court at Nainaital and judicial notice can be taken of the fact that he is at present a Brief Holder of the State of Uttaranchal in the High Court and is conducting criminal appeals in the High Court. This indicate that Sri Khan has long standing as a criminal lawyer and was rightly appointed as Amicus Curiae to defend the accused in capital punishment case. Further he was assigned the case to defend the two accused at the expense of the state on the day when the three prosecution witnesses were examined but the learned Amicus Curiae had not sought adjournment to avail some time to prepare the case. This indicate that the learned Amicus Curiae has not felt handicapped and must have prepared the case to his satisfaction so as to proceed with the cross examination of the witnesses on that very day and looking at the cross-examination of the witnesses we do not find that for this reason any prejudice was accused to the two accused for whom he was appointed Amicus Curiae. Therefore neither the ratio of the reported decisions cited at the bar is applicable to the facts of the case nor the argument that in the face of the facts of the case retrial, after setting aside the judgment under appeal appear justified, can not legally be sustained. 14- Coming to the facts and the incriminating circumstances of the case learned counsel of the appellants argued that even if such facts as Km. Sushma deceased went missing at 8 A.M. on 25-9- 2003; she did not return to her house the whole day and despite search her whereabouts were not known; the missing report was lodged that very day; the victim was subjected to rape and carnal intercourse in the night between 25/26-9-2003 and thereafter she was strangulated to death, are satisfactorily established and proved, the other relevant facts such as the accused were seen coming towards the vacant plot of Sardar Ji with a gunny bag at about 1.30 in the night of 25/26-9-2003 and were seen throwing the dead body of Km. Sushma; they were then arrested at the spot; that they on their arrest confessed their guilt before the witnesses; that they were taken to the police station soon after the arrest and the under- garments of the accused were found stained with human semen and spermatozoa and that of the victim Km. Sushma also, were not proved for want of reliable and credible evidence