^s ii!<W||l!t. HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar, JJ. Criminal Appeal No.182 of 2007 Appellant (in jail) Vs. Respondent. Pavan Kumar Dewangan @ Panchu Dewangan @ Ramesh Satnami @ Chotelal son of Jai Ram Dewangan, aged about 38 years, resident of Bogiakala, P.S. Saja, Distt. Durg (CG). State of Chhattisgarh through Police Station House Officer, Police Station, Amanaka, Raipur (CG). (Criminal Appeal underSection 374 (2)ofthe Cr.P.C.) Present: Mr. Vimalesh Bajpai, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyerforthe State. ORAL JUDGMENT (Deliveredon 6-7-2011) PerT.P. Sharma. J. -y 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-8-2006 passed by VIII Additional Sessions Judge (FTC) Raipur in Session's Trial No.79 of 2006, whereby and whereunder learned Sessions Judge after holding the appellant guilty for the commission of rape with prosecutrix below the age of 12yearsand her culpable homicidal death amounting to murder, convicted the appellant under Sections 302 & 376 (2) (f) IPC and sentenced him to undergo life imprisonment and to /) ti|«iasi pay fine of Rs.1000/-, in default of payment of fine to undergo further Rl for six months respectively. Both the sentences are dsirected to run concurrently. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. The case of the prosecution, in brief, on 18-2-2005 at about 12 noon, the present sappellant took unfortunate minor girl Chandrakanta aged below 12 years on his Luna moped and thereafter on cycle and committed rape upon her. After commission of rape he committed murder of Chandrakanta. Sahdeo, father (PW/1) of deceased Chandrakanta went to Mohan Nagar Police Station and lodged report (Ex.P/1C) about missing of his daughter and thereafter dead body of deceased was found near Jarvay Chuharikhar on 20-2-2005. Merg intimation was recorded vide Ex.P/3, first information report was lodged at Police Station, MohanNagar vide Ex.P/21, pieces of red coloured bangles, half burnt matoh stick, empty matoh box, half burnt light green coloured beedi and one water bottle were seized from the spot vide Ex.P/9. After summoning the witnesses vide Ex.P/10, inquest over the body of the deceased was prepared vide Ex.P/11 as unknown person. Dead body of the deceased was sent for autopsy to Ambedkar Hospital, Raipur vide Ex.P/18 where Dr. Shivnarayan Manjhi (PW/1) conducted post mortem vide Ex.P/1 and found the following injuries; i) contusion present on upper lip ~~! .•»•. left side just left to mid line size 1.5 x 0.8 cm read colour ecchymosis present underneath; ii) contusion present on upper lip right side adjoining the mid line size 1.2 x 0.8 cm red colour ecchymosis present underneath; iii) contusion present at right side facejust below the right^ear lobul adjoining right angle of mandible size 4 x 3 cm vertically oblique underneath skin red colour ecchymosis present; iv) contusion present on left side lateral and 2 cm below to left angle of mouth size 2 x 3 cm transverse oblique underneath skin read Gblour ecchymosis present; v) read colour ecchymosis presenton left side chest lateral aspect 10 cm below the tip of shoulder at level of post erior axillary line 4 x 3 cm area transverse oblique; vi) red colour ecchymosis present underneath scalp right side termporal region size 4 x 6 cm area and temporalismusotes are contused; vii) imfacted abrasion present on left thigh antero-medical aspect 4 cm above the knee in the size 1.5 cm diameter red in colour underneath skin; viii) imfacted abrasison present on left knee anterior aspect 0.5 cm diameter underneath red in colour; ix) imfacted abrasion present on left knee medical aspect 0.5 cm diameter red in colour; x) irregular imfacted abrasion present on left lower antero medical aspect at upper 1/3 part in area of3 x 2 cm vertically various shape and size ranging pin headed to 0.5 cm diameter; xi) linear abrasion present on public regionleft side 2 cm length transversely red in colour; xii) linear abrasion present on right side pubic region size 1.5 cm length red in colour and xiii) contusion present on back of '-;< 5. chest at mid line 19 cm below to cervical vectebra level size 4 x 4 cm area, underneath skin red colourmecchymosis present. Injuries onthe private part: Bruising present.over the vulva and the vaginal wall in patches with red clotted blood present in the vaginal canal in small quantity. Pact of blood is clotted. 3 (three) laceration present in the vagina - (1) at6 O' clock position which extends from hymen to the posterior vaginal wall and to the tear present in the posterior commissure. 3 cm lorag and 1.5 cm wide deep into the muscle of the posterior vaginal wall; (2) at 8 O' clock position in the vagina which is 2 cm x 0.8 cm superiicial ; (3) at 4 O' clock position in vagina 2.5 cm long x 1 cm width superficial. The hymen ruptured at described above. The vaginal canal admits three fingers easily. Anal canal including the sphincter the wall of lower part shows irregular multiple laceration, the wall is contused internally this region and contains little red clotted bldod and is dilated 3.5 cm diameter and canal opening. Slides of swab from vagina and anus, slide from surrounding of vagina were taken for further examination. Death was homidal in narture and cause of death was due to asphyxia as a result of smothering. Injuries on genital shows the sexual assault . Viscera of other parts of body were sealed. Sealed internal parts of body of deceased were seized vide Ex.P/19. During course of investigation, marksheet of deceased was seized vide Ex.P/6. One Luna moped was seized from PW/11 Udayram vide Ex.P/8. Four pieces of used Megna beedi /"• ^. 6. 7. 8. 9. 10. were seized from appellant vide Ex.P.12 and Herculus cycle was seized vide from appellant Ex.P/13. Spot map was prepared vide Ex.P/15. Accused was examined by Dr. D.N. Dewangan (PW/18) vide Ex.P/25 and opined that the appellant was capable to perform sexual intercourse. Seized articlesweresent to FSL, Raipur vide Ex.P/23 and report thereof is received vide Ex. P/24 in which human sperm was found on vaginal slides. After completing the in.vestigation, charge sheet was filed against the appellant inthe Cburt of Chief Judicial Magistrate, Raipur, who in turn committed thecase to the Court of Sessions Judge, Raipur. Learned VI llth Additional Sessions Judge, received the case on transfer, who framed charges under Section 302 and 376 of the Indian Penal Code against the appellant who abjured the guilt. Prosecution in order to establish the charge against the appellant examined 18 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. After hearing counsel for the respective parties, trial Court convicted and sentenced the appellant as aforesaid mentioned. We have heard learned counsel for the parties and perused the record ofthe trial court as also the impugned judgment Mr. Vimalesh Bajpai, learned counsel appearing for the appellant vehemently argued that conviction of the appellant is based on last seen theory which is a weak type of evidence. Conviction of •/ the appellant on sentimental ground based on last seen theory is not sustainable under the law. Prosecution was under obligation to prove the offence beyond all reasonable doubt by adducing clinching and credible avidence, but prosecution has failed to adduce such evidence. 11. On the other hand, Mr. J.A. Lohani, Penal Lawyer appearing on behalf of the State supported the impugned judgment and submits that convictjon is based on circumstantial evidence and last seen theory. The Gourt b^fow after considering all evidence and aspects of the case, has rightly convicted and sentenced the accused/appellant. He further submits that the evidence of PW/5 Manju, PW/4 Savitri Bai and PW/7 Sangita Patil, are sufficient for drawing inference that none else than the appellant had committed rape and murder of deceased Chandrakanta. 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalfofthe prosecution. 13. This is a case of brutal rape and murder of minor girl - Chandrakanta below age of 12 years which has not been disputed on behalf of the appellant. On the other hand, he has taken the defence that he has not committed such offence. Facturm of brutal rape and murder has also been established by the evidence of Doctor D.N. Dewangan (PW/1), autopsy report (Ex.P/1), school certificate ofdeceased vide Ex.P/6 relating to age in which her date of birth is shown as 7-8-1 994; slides of vaginal swab and other articles seized vide Ex.P/19, FSL report vide (^ •/ -a B—- 14. 15. Ex.P/24. The aforesaid documentary and ocular evidence are sufficient to establish the fact that minor girl below age of 12 years was ravishly raped and brutally murdered. As regards complicity of the appellant in the crime in question is concerned, conviction ^of the appellant is based on evidence of last seen theory. As per evidence of PW/3 Sahadeo Singh and PW/4 - Savitri, unfortunate parents of the deceased, appellant took two kids with hjm i.e., deceased Chandrakanta and PW/5 Manju. As per evidence of PW/5 Manju, 12 years child witness, her evidence has been recorded by the court below after satisfying it that the witness is able to understand the duty to speak truth and able to answer the question rationally. As per her evidence appellant along with his son Manoj came to her house by Luna Moped and told her younger sister Chandrakanta for purchasing Sandal he took unfortunate deceased Chandrakanta aged about 10 years with him by Luna Moped, thereafter, he took them to the house of Sanjay Patil where he demanded water and after drinking water in the house of PW-6 Sanjay Patil, he left his son and herself in the house of Sanjay Patil and went with deceased Chandrakanta. Even she told her sister Chandrakanta not to go with him, but despite her objection Chandrakanta accompanied the appellant and thereafter her sister went with the appellant and did not come back. As per evidence of PW/7 Sangita Patil, wife of Sanjay Patil, appellant cameto her house along with PW/5 Manju, Chandrakanta and his son and after drinking water he went from her house with one girl by Luna y 16. leaving the other girl there and thereafter he did not come back. PW/11 Udayram Sahu has deposed that the appellant came to his house by Luna along with one girl of 9 - 10 years age and after leaving his Luna at this house he took his cycle and went along with that girl and thereafter, he did not come back. Luna moped was seized vide Ex.P/8. Defence has cross examined this witness at length, who specifically deposed that present appellant had taken PW/5 Manju and her younger sister Chandrakanta on Luna from their house. They went to the house of Sanjay Patil from where after drinking water appellant went along with Chandrakanta on Luna leaving PW/5 Manju in the house of Sanjay Patil and thereafter appellant went to the house of PW/11 - Udayram Sahu where he left Luna and went on cycle of this witness with Chandrakanta and he did not come back, thereafter dead body of Chandrakant was found. The evidence of this witness shows that deceased was seen alive last ime in the company of the appellant and thereafter she was raped and her dead body was found. Last seen theory is also a strong circumstance. While dealing with the question of last seen together, the Supreme Court in the matter of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai has held that if the prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 of the judgment reads thus:- "19. The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, 1 (2003) 1 SCC 534 ^, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement underSection 313 Cr.P.C. they have not taken any specific stand whatsoever. In the evidence of PW-25, it is elicited that on 5.3.1985 in the afternoon when Vadivelu was produced before the said witness, he after interrogation allowed Vadivelu to go, but then it is found from his evidence that he instructed A-1 to keep a watch over Vadivelu. In such circumstances, it was incumbent upon A-1 to have explained to the cpurt in what circumstances they parted company. He has not given any explanation in this regard. On the contrary, the prosecution has established the fact that on the very day at about 5 p.m., Vadivelu was brought to the house of PW-1 by the appellants which was seen by PW-5. This part of the evidence of PW-5 has gone unchallenged in the cross- examination and, therefore, we will have to proceed on the basis that, what is stated by PW-5 in this regard is true, If that be so, the prosecution has established the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in thecompany of these appellants and, therefore, in the absence of any specific explanation from the appellants in this regard, and in view of the other incriminating circumstances against the appellants having been proved by the prosecution, an adverse inference will have to be drawn against these appellants as to their part in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement under Section 313 Cr.P.C., it is seen from the evidence of PWs.1 and 5 that A-1 told the said witnesses on the night intervening between 5-3- 1985 and 6-3-1985 that Vadivelu had escaped from the Police Station when he was allowed to sleep in the verandah ofthe Police Station. Thisexplanation given by A-1 to PW-1 which was also heard by ~< / /' 10 PWs.5 and 14, clearly shows that the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance ofA-1 making a false statement to PW-1 can also be taken as a circumstance against the appellants, in establishing the appetlants' guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that thg missing person was last seen in .the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph v. State ofKerala [2000 5 SCC 197]. Therefore, we are in agreement with the finding of the courts below that circumstance No,7 also stands established against the appellants." ^ While dealing with same question, the Supreme Court in the matter of Hatti Singh v. State of Haryana has held that in case of last seen together the evidence of last seen by itself is not of much significance. It may, however, provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. While dealing with same question, the Supreme Court in the matter of State of Goa v. Sanjay Thakran and another has held that in case of last seen together the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime. Para 34 of the said judgment reads thus:- "34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so srnall that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons 2 (2007)128cc 471 3 (2007) 3 SCC 755 11 seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to "light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes 'impos'sible, then the evidence of circumstahce of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case." 17. In the present case, virtually appellant has taken minor girl Chandrakanta with him by Luna Moped and thereafter leaving Lune Moped in the house of PW/11 Udayram, he took mior girl Chandrakanta by a bicycle from his house. This is not a case of simply last seen theory in which Chandrakanta was seen last time alive in the company of appellant, but appellant himself has taken minor girl Chandrakanta with him by a bycycl. Appellant 12 has not offered any explanation that where and when he left minor girl Chandakanta and in absence of such explanation, only inference would be possible that the appellant Pawan Kumar Dewangan has committed rape and murder of minor girl Chandrakanta below age 6f 12 years. 18. After appreciating the evidence available on record, learned Additional Sessions Judge, has convicted and sentenced the appellant as aforementioned. .' fc 19. On a close scrutiny ofthe evidence, we do not find any illegality or infirmity in the judgment impugned warranting any interference. This is a case of brutal rape and murder of 10 years old minor giri and the court below has already taken lenient view. We also do not find any ground for interference in the sentence imposed upon the appellant. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. REIJU Sd/- T.P. Sharma Judge Sd/- R.N. Chandrator Judge