IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 213 of 2005. Date of decision: 16-6-2008. ____________________________________________________________ Manoj Kumar Appellant. Versus- State of Himachal Pradesh Respondent. ___________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? . Yes. For the appellant : Mr. Jagdish Vats, Advocate. For the respondent : Mr. P.K. Sharma, Additional Advocate General with Mr. P.M. Negi, Dy. Advocate General. _________________________________________________________ Surjit Singh, J. (oral). Appellant Manoj Kumar has appealed against the judgment of the Sessions Court whereby he has been convicted of offences under Section 302 and 376 read with Section 511, I.P.C and sentenced to under-go rigorous imprisonment for life and to pay a fine of rupees 10,000/- in respect of offence under Section 302 I.P.C. and to under-go rigorous imprisonment for five years and to pay a fine of rupees 5000/-, in respect of offence of attempted rape. Facts as per prosecution evidence are as follows. Deceased Saraswati, a young woman of nineteen years, was married to Mungeshwar Singh. They lived in VMT Colony in Room No. 16 which had been allotted to PW1 Mungeshwar Singh, on account of his being an employee of VMP Spinning Mills at Baddi. In the adjoining Whether reporters of the Local papers are allowed to see the judgment? - 2 - room No.15, appellant-accused used to reside, he too being an employee of the aforesaid Spinning Mill. Mungeshwar Singh (PW1) had kept in his room one friend by the name of Arun Kumar. Both of them were employed in the same mill, i.e, VMP Spinning Mill at Baddi. Their duty hours were from 11.00 P.M.to 7.00 A.M. On 30-4-2003, PW1 Mungeshwar Singh accompanied by Arun Kumar left for duty at 10.15 P.M. When he returned at 7.15 A.M on the next following day, i.e., 1-5-2003, he found the door of his room lying open. On entering the room, he noticed the cot lying upside down. He also noticed his wife lying dead. Her mouth was tied with a piece of blue coloured cloth. A white shirt, belonging to PW1 Mungeshwar Singh, was found tied around her neck. On seeing the aforesaid situation, Mungeshwar Singh started crying. Attracted by his cries, Rakesh, Tankeshwar Bharti and Arvind reached there. With the help of the aforesaid persons, Mungeshwar Singh (PW1) un-tied and removed the cloth tied to cover the mouth of the deceased. Dead-body was taken to the gate of the colony in a Tata Sumo, belonging to one Des Raj. Police was informed. Police took into possession the cloth with which the mouth of the deceased was tied. It also removed the shirt which had been tied around the neck of the deceased. Ear-rings of the deceased were found lying on the spot. They were taken into possession vide memo Exhibit-PB. Broken bangles of the deceased were also lying on the floor of the room which were taken into possession vide memo Exhibit-PC. Some loose hair were also noticed on the floor of the room which were taken into possession vide memo Exhibit-PD. All the aforesaid articles were made into separate parcels and the parcels were sealed. Initially, it was reported to the Police by - 3 - PW2 Hem Singh Jamwal, vide statement Exhibit-PE, that it appeared to be a case of suicide. But the Police after inspecting the room and having recovered the aforesaid items, including broken pieces of bangles and hair on the spot, felt that it was a case of death caused by use of criminal force which was resisted by the deceased. Police also noticed traces of blood inside the finger nails of the deceased and so it started looking for the person who might have sustained injuries by means of finger nails. It started with the neighbourers. Appellant-accused who lived in the adjoining room No.15 was found to be having a number of abrasions and teeth bite mark on his person. He was arrested on suspicion. He made a disclosure statement leading to the discovery of his banyan and under-wear which he had kept hidden under the mattresses spread on his cot. The same were taken into possession vide memo Exhibit PW8/B. Appellant-accused was got medically examined. PW4 Dr. Gurmit Singh of P.H.C. Baddi conducted his medical examination on 2-5-2003 and noticed multiple linear abrasions i.e. scratches 1-2 mm in breadth of varying length mostly curved on the neck left side, on the chest, and both the hands with reddish scab. He also noticed tooth bite mark on right upper arm medially in the middle. The appellant was again examined at Community Health Centre, Nalagarh by PW9 Dr. Sunil Gupta who too noticed multiple abrasions on left side and middle part of upper and lateral side of chest. The abrasions were partly healed and had developed brown scab. PW9 conducted the medical examination of the appellant on 5-5-2003. This PW also took hair and blood samples of the appellant-accused for comparison with the loose hair recovered from the floor of the - 4 - room of the deceased and the blood noticed in the finger nails, which had been clipped by Dr. Sarita Agnihotri (PW19) at the time of the post mortem examination. Post mortem examination was conducted by PW19 Dr. Sarita Agnihotri. She found nine external injuries, as mentioned herein below, on the dead-body of Saraswati deceased:- “1. There was an abrasion surrounded by contusion of the adjoining tissues over the middle of forehead which was brownish in colour measuring 1 cm x 0.5 cm. 2. There was an abrasion near hairline on right side of forehead which was brownish in colour surrounded by contusion of the adjoining tissues measuring 0.5cm x 0.5cm. 3. There was an abrasion of 0.4cm x 0.5cm, size over nasal bridge, which was brownish in colour. 4. There was a scratch abrasion of 0.4cm x0.5cm size of left side of face, lateral to lateral canthus of left eye, obliquely placed, which was brownish in colour. 5. There was a scratch abrasion of 0.4cm x 0.5 cm size over left cheek obliquely placed which were brownish in colour. 6. There was scratch abrasion measuring 0.5cm x 0.6 cm, over right side of face above the upper lip, which was brownish in colour. 7. There was scratch abrasion measuring 0.4cm x 0.5 cm, over right side of face lateral to angle of mouth, brownish in colour. 8. There was three oval shaped bruises, measuring 1-5 cm x 2cm, each, over right side of upper part of neck, below the mandible, which were brownish and were parchment like appearance. 9. There were multiple bruises over left upper part of neck, below the mandible, which were brownish and dry and were parchment like appearance.” PW19 Doctor Sarita Agnihotri gave the opinion that the deceased had died due to violent asphyxia leading to cardio- pulmonary failure by means of throttling. Chemical Examiner gave - 5 - the opinion, vide report Exhibit PW19/A that the hair recovered by the Police from the floor of the room of the deceased matched with the sample hair of the appellant-accused. DNA test was conducted at the Central Forensic Science Laboratory Chandigarh by PW24 Rajiv Giroti Junior Scientific officer. He found that DNA profile obtained from the sample blood of the appellant-accused was consistent with the DNA profile of the blood found in nail clippings. Police could not collect any direct evidence of the crime. Trial Court charged the appellant-accused with the offences of murder and attempted rape and on his pleading not guilty, proceeded to try the appellant. Prosecution examined twenty four witnesses to bring the charge home to the appellant-accused. Evidence which the prosecution led during the course of trial was to prove the following circumstances: (i) Appellant-accused had an opportunity of committing the crime; (ii) Appellant-accused had multi abrasions and tooth bite mark on his person when examined by Dr. Gurmit Singh (PW4) on 2.5.2003. (iii) Hair recovered from the room of the deceased matched with the sample hair of the accused- appellant. (iv) DNA profile of the blood found in the nail clippings of the deceased matched with the DNA profile of sample blood of the appellant-accused. Accused-appellant denied his involvement in the commission of crime. He took the plea that he had another person staying with him in his room No.15 on the relevant night and his name was Arun Kumar and since said Arun Kumar was in his room throughout the night he could not have had the opportunity of going to the room - 6 - of the deceased. He also pleaded that there lived another man with the husband of the deceased in room No.16 itself and the possibility of that man having committed the crime could not be ruled out. Trial Court believed the prosecution version and concluded that the aforesaid circumstances (i) to (iv) stood proved to the hilt and the same made a complete chain pointing to no other hypothesis, but that of the guilt of the accused-appellant and consequently, convicted and sentenced him, as aforesaid. Law is very well settled that in a case based on circumstantial evidence, all the alleged circumstances must be proved conclusively and those circumstances should form a complete chain leading to one and only one hypothesis that it is the accused on trial and no-body else, who committed the crime. We have heard the learned counsel for the appellant as also learned Additional Advocate General and have also gone through the entire evidence on record and the statements of the accused under Section 313 of the Code of Criminal procedure (accused was examined under Section 313 Cr.P.C. thrice). It is not in dispute that the appellant-accused lived in a room adjoining the room of the deceased. Deceased lived in room No. 16 while the appellant-accused was in occupation of room No.15. It is also not in dispute that the husband of the deceased used to go for duty to the factory he was employed in, late in the night and return early in the morning, as his duty timings were 11.00 P.M. to 6.00 A.M. It is also borne out from the testimony of Mungeshwar Singh (PW1), the husband of the deceased, that on 30.4.2003, he - 7 - left his room at 10.15 P.M., leaving his wife alone in the room. Appellant-accused being a next door neighbour of the deceased was supposed to be knowing that the deceased was all alone in the house that night. His duty hours were during day time, those days. Thus, it stands established that the appellant-accused had the opportunity to enter the room of the deceased and to commit the crime. The appellant was arrested on 2.5.2003, when abrasions, apparently caused by finger nails, were found on his chest. He was taken to Dr. Gurmit Singh (PW4) of P.H.C. Baddi who, on examination, found multiple abrasions on his chest and both hands, dorsally with reddish scab, which according to the said witness, had been caused by scratches. The doctor also noticed tooth bite mark on the right upper arm. Appellant-accused told PW4 Dr. Gurmit Singh at the time of his examination that he had suffered abrasions due to scratching by nails. We see no reason to dis-believe the testimony of PW4 Dr. Gurmit Singh, which is corroborated by the testimony of PW21 Chaman Lal, who testified that he noticed scratch marks on the upper part of the chest of the appellant- accused and because of the presence of abrasions, he suspected him to be the killer of the deceased and took him into custody. The above discussed evidence conclusively proves that the appellant had multiple abrasions caused by nail scratches on his chest and tooth bite mark on his right upper arm. PW9 Dr. Sunil Gupta very categorically stated that he had taken the sample hair of the accused-appellant on 5th May, 2003 when he was produced before him, for the purpose, by the Police. - 8 - Appellant-accused also admitted in his statement under Section 313 of the Code of Criminal Procedure, recorded for the first time (on 11-1-2005) that his hair sample was taken by the aforesaid Doctor. Testimony of the Doctor is corroborated by a mention in the MLC Exhibit PW9/B that sample of hair of the appellant-accused had been taken and sealed in a parcel. PW18 A.S.I. Harjit Singh who inspected the spot soon after the registration of the case testified that he found hair Exhibit-P4 on the floor of the room and made the same into a cloth parcel and sealed that parcel with a seal that produced impression of letter ‘H’ of English alphabet. The aforesaid sealed parcel, containing the hair, recovered from the spot was sent to the Chemical Examiner along with the parcel containing the sample hair of the appellant- accused. Chemical Examiner who compared the two sets of hair reported, vide Exhibit PW19/A that the hair lifted from the spot tallied with the sample hair of the appellant-accused. Thus the circumstance that the hair of the appellant-accused was found on the spot also stands proved. Presence of hair of the accused at the scene of the crime conclusively proves that the appellant-accused had gone to the room of the deceased. Appellant-accused has not offered any explanation whatsoever for presence of his hair in the room of the deceased. Testimony of PW24 Rajiv Giroti and the two reports given by him, i.e, Ext. PW20/A and PW24/A prove that the DNA profile of the blood on the finger nail clippings of the deceased matched with the DNA profile of sample blood of the accused-appellant. PW19 Dr.Sarita Agnihotri who conducted the post-mortem of the dead- - 9 - body testified that she had taken the nail clippings of the deceased because she found traces of blood inside the nails and sealed those clippings into a parcel. Sample blood of the appellant- accused was taken by PW9 Dr. Sunil Gupta, who testified that he had taken blood sample of the accused-appellant on 5.5.2003, when the Police produced him, for the purpose at Community Health Centre, Nalagarh. Appellant-accused when initially examined, under Section 313 of the Cr.P.C., not only did not deny but rather admitted that his blood sample had been taken. The evidence referred to above thus conclusively establishes that the blood found in the finger nails of the deceased was that of the accused-appellant, which means that the deceased put-up resistance, when assaulted by the appellant-accused and caused abrasions on his chest and neck. Also there is a tooth bite mark on the right arm of the appellant-accused per testimony of PW4 Dr. Gurmit Singh and in the absence of any explanation for the said injury by the appellant-accused, it can legitimately be presumed that this injury was also caused by the deceased while saving her honor. From the evidence referred to herein above, it is clear that all the four circumstances, by proof of which the prosecution sought to connect the appellant-accused with the commission of the crime, stand fully established and these circumstances make a complete chain pointing to the guilt of the appellant-accused and to no other hypothesis. The fact that the deceased caused tooth bite injury and nail scratches on the chest and upper right arm of the accused-appellant, proves to the hilt that the appellant-accused - 10 - went to the room of the deceased with intent to commit rape on her and when she resisted his attempt he killed her. Net result of the above stated position is that there is no merit in the present appeal. The same is therefore dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. June 16, 2008. (bm)