IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Date of decision: 13.04.2007 Criminal Appeal No. 578 of 2001 (Old No. 170 of 1991) A.F.R. (Approved for Reporting) Not approved for reporting Date : 13.04.2007 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. 1 Reserved judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 578 of 2001 (Old No. 170 of 1991) Abdul Qayyum …………Appellant. Versus State ………….Respondent. Sri R.P. Nautiyal, learned Amicus Curiae for the appellant. Sri G.S. Sandhu, learned G.A. for the State. Coram: Hon’ble J.C.S. Rawat, J. Hon’ble Prafulla C. Pant, J. [Per Prafulla C. Pant, J.] This is an appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 7.12.1990 passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 74 of 1989, whereby appellant Abdul Qayyum has been convicted under Sections 302, 376, 363 & 201 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and the convict Abdul Qayyum is sentenced under section 302 of I.P.C. to imprisonment for life, under section 376 of I.P.C. to rigorous imprisionment for a period of ten years, under section 363 of I.P.C. to rigorous imprisonment for a period 2 of one year and under Section 201 of I.P.C. to rigorous imprisonment for a period of six months. (2) Heard learned counsel for the parties and perused the evidence on record. (3) The prosecution story in brief is that accused appellant Abdul Qayyum Bambaiya used to work in a Banana godown in Dhamawala, Dehradun. The house of P.W. 1 Ramjani (a washer man), is near said to-down. Accused Abdul Qayyum used to go to the house of Ramjani to get his clothes pressed. Ramjani had a daughter named Rashma aged five years. She got acquainted and attached with the accused Abdul Qayyum. On 5.2.1989 at about 7.15 p.m. accused Abdul Qayyum came in the house of Ramjani (P.W. 1) and took Rashma under the pretext of giving her sweets. He took her to the house of P.W. 3 Ramesh Kumar from where he bought biscuits for her. P.W. 9 Manohar Lal, another shop keeper, also witnessed the accused taking Reshma to the shop of Ramesh Kumar. When Reshma did not return home for sometime, her parents got concerned. They along with their relative P.W. 6 Wahid Ahmed inquired about Miss Reshma and made search for her in the nearby localities. Finally, they lodged the First Information report (Ext. A-1) on the very day at about 10.10 P.M. with Police Station Kotwali, Dehradun, after getting the same scribed from P.W. 2 Sunil Kumar Shahni. On the basis of the said report, check report (Ext. A- 23) was prepared by Head Constable Karmveer Singh. Initially the crime was registered under section 363 of I.P.C. 3 against accused Abdul Qayyum. Endorsement of making of said report was made by the Police in the general diary, an extract of which is Ext. A-24. The investigation was made by P.W. 14, Sub Inspector, Kaluram Sharma. Since the Police got information that accused Abdul Qayyum had gone towards E.C. Road in a three wheeler, Sub Inspector Kaluram Sharma along with Sub Inspector J.P. Juyal (P.W. 11) and others, rushed towards said direction. Near Dwarka stores accused seen at about 11.00 P.M. going in a three wheeler bearing Registration No. U.S.K. 7703. The Police got arrested the accused and interrogated him. An entry to this effect was made in the general diary, an extract of which is Ext. A 17. On interrogation, accused Abdul Qayyum told the Police that he can get the Reshma (victim) recovered. Sub Inspector Kaluram Sharma (Investigating Officer), Sub Inspector J.P. Juyal along with Ramjani, father of the victim and P.W. 6 Wahid Ahmed, accompanied the accused, who took them to a ruined building near Vijay Laxmi Transport, where Miss Reshma was found lying naked. Accused Abdul Qayyum admitted to the witnesses having committed rape on Reshma. A recovery memo (Ext. A-2), regarding recovery of Reshma, was go prepared. Police also recovered clothes, Sweater (Ext. 1), KURTA (Ext. 2) and SALWAR (Ext. 3) of the victim. A recovery memo (Ext. A-3) was made to this effect. The victim was lying in an injured condition. She was bleeding from her private parts. She was still breathing and alive. The Police took Miss Reshma immediately to the hospital. However, there she was declared brought dead. On this the crime was converted into one relating to offences punishable under Section 376, 302 & 201 of I.P.C.. Dead 4 body of Miss Reshma was taken into possession by the Police on the next day morning from the hospital and an inquest report (Ext. A-5) was prepared. Police also got prepared sketch of dead body (Ext. A-8), Police Form No. 13 (Ext. A-9), letters (Ext. A-10 & Ext. A-12) to the Chief Medical Officer requesting for postmortem examination. The dead body was sent for postmortem examination. P.W. 13 Dr. Kuldeep Dutta conducted the autopsy on the dead body on 6.2.1989 at about 2.00 P.M. and prepared the postmortem examination report (Ext. A-15). The said Doctor opined that the cause of death was asphyxia as a result of strangulation. On that very day accused was also got medically examined by P.W. 7 Dr. M.K. Choursia at 8.30 A.M., who recorded the injures on the person of the accused Abdul Qayyum and prepared report (Ext. A-6). Again the accused was got medically examined by P.W. 17 Dr. Gurpal Singh on 6.2.1989, who prepared report (Ext. A-27) and subsequently by P.W. 12 Dr. S.K. Nautiyal on 10.2.1989, who prepared report (Ext. A-13), as during this period the accused was sent on the police remand. Meanwhile, the Investigating Officer inspected the spot and prepared site plans (Ext. A-20 and Ext. A-21). He also interrogated the witnesses and the accused Abdul Qayyum was produced before Magistrate for recording statement under Section 164 of Cr.P.C. on 15.2.1989, in which the accused Abdul Qayyum admitted having acquainted with the girl and under intoxication committed ‘sin’. This statement was recorded by P.W. 18 M.C. Upreti, an Executive Magistrate, and the same is Ext. A-28 on the record. The clothes of the accused, taken by Police in their possession, were sent for chemical 5 examination. The Investigating Officer on completion of the investigation submitted charge sheet (Ext. A-22) against the accused Abdul Qayyum for his trial in respect of offences allegedly committed by him punishable under Sections 363, 376, 302 & 201 for I.P.C. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C. appears to have committed the case to the Court of sessions for trial. The learned Sessions Judge, after hearing the prosecution and the defence, framed charge of offences punishable under Sections 363, 376, 302 & 201 of I.P.C. against accused Abdul Qayyum, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ramjani, father of the deceased, P.W. 2 Sunil Kumar Shahni, who scribed the report (Ext. A-1), P.W. 3 Ramesh Kumar, the shopkeeper from where accused purchased biscuits for the victim, who saw him with her, P.W. 4 Zahida, mother of the deceased, P.W. 5 Dr. M.K. Dewadi, pathologist, who prepared report relating to spermatozoa on glans penis, P.W. 6 Wahid Ahmed, who witnessed the recovery of victim on pointing out of accused Abdul Qayyum and before whom accused made extra judicial confession, P.W. 7 Dr. M.K. Choursia, who medically examined the accused on 6.2.1989 at 8.30 A.M., P.W. 8 Umar Siddique, a witness of inquest report (Ext. A-5), P.W. 9 Manohar Lal, a shop keeper who runs his shop in front of Ramesh Kumar’s shop, from where he saw accused going with Reshma, P.W. 10 Sub Inspector R.S. Tolia, who prepared the inquest report with other police witnesses, P.W. 6 11 Sub Inspector J.P. Juyal, who is witness of arrest of accused Abdul Qayyum from a place near Dwarka stores where he was seen going in a three wheeler, P.W. 12 Dr. S.K. Nautiya, who medically examined the accused on 10.2.1989, P.W. 13 Dr. Kuldeep Dutta, who conducted postmortem examination on dead body of Miss Reshma, P.W. 14 Sub Inspector Kaluram Sharma, the Investigating Officer, P.W. 15 Constable Krishna Dutt, who took the clothes of accused in a sealed condition for chemical examination, P.W. 16 Head Constable Karmveer Singh, who prepared recovery memo of the clothes (Ext. A-5, A-6 & A-7) of accused taken in their possession by Police, P.W. 17 Dr. Gurpal Singh and P.W. 18 Sri M.C. Upreti, an Executive Magistrate, who recorded the statement of accused under section 164 of Cr.P.C.. The oral and documentary evidence was put to the accused, which he alleged to be false. However, no evidence in defence was adduced. The trial court after hearing the parties found accused guilty of the charge of offences punishable under Sections 363, 376, 302 and 201 of I.P.C.. After hearing on sentence the trial court sentenced the convict under Section 302 of I.P.C. to imprisonment for life, unde Section 376 of I.P.C. to rigorous imprisonment for a period of ten years, under section 363 of I.P.C. to rigorous imprisonment for a period of one year and under Section 201 of I.P.C. to rigorous imprisonment for a period of six months. Aggrieved by said judgment and order dated 7.12.1990, passed by learned Sessions Judge, this appeal was preferred by the accused before Allahabad High Court, from where it has been received by transfer under Section 35 of U.P. Reorganization Act, 2000, for its disposal. 7 (5) Before further discussions, it is pertinent to mention here the ante mortem injuries found on the person of the deceased Miss Reshma observed by P.W. 13 Dr. Kuldeep Dutta and mentioned in his report (Ext. A-15). The same are being reproduced below: (i) abrasion .5 cm x .5 cm on upper lip, (ii) contusion with cut 1cm x .5 cm on the upper lip (iii) contusion with swelling over left side of cheek in an area of 8 cm x 4 cm (iv) on the private parts vagina was contused and contained clotted blood in the cavity with multiple small abrasions. The aforesaid medical officer has also recorded the following anti mortem injuries, which were found on the neck of the deceased. (1) multiple abrasions around the neck just below chin in an area 6 cm X 4cm. (2) Two contusions just below the chin on the left side of hyoid bone. One on the right side measuring 2 cm X 1 cm multiple small abrasions. (3) Fracture of Hyoid bone with contusion of the neck. P.W. 13 Dr. Kuldeep Dutta at the time of post mortem examination further found following five injuries in the area 8 for abdomen and back of the deceased, which are also recorded in postmortem examination report (Ext. A-15):- (a) abrasion 2 cm X .15 cm over lateral aspect of the right side of abdomen. (b) abrasion 2 cm X 1 cm over right flouk just above the hyoid bone. (c) multiple abrasions over right side of scapular region in an area of 10 cm X 6 cm. (d) multiple abrasions over mid and lower back in an area of 15 cm X 8 cm. (e) Multiple abrasions over the right side of the abdomen in an area of 8 cm X 4 cm. In the opinion of the Medial Officer, the victim has died due to asphyxia as a result of strangulation. P.W. 13 Dr. Kuldeep Dutta has stated that he made two slides of the swab of vagina of the deceased and sent it for pathological examination. (6) It is also pertinent to mention the medical injuries found on the person of the accused Abdul Qayyum recorded by P.W. 7 M.K. Choursai, who prepared report (Ext. A-6) at about 8.30 A.M. on 6.2.1989. Following are the injuries and the observations made by the Medical Officer in his report:- (A) Contusion 8cm x 2cm back of right forearm in middle. (B) Abraded contusion 3cm x 2cm back of left forearm, 4cm above the wrist. 9 (C) Contusion 10cm x 4cm back of right leg in middle. (D) Contusion 15cm x 2cm right side back just below right scapula. (E) Penis well developed, circumcised, smegma absent, pubic hair not matted, glans not influenced or any signs of any wound present on its. (F) Abraded contusion 15 cm x 2 cm dorsum of left foot and trig-toe. The Medical Officer P.W. 7 M.K. Choursia states that he sent smear from glans penis to get examined whether the same is negative for spermatozoa or not. P.W. 5 M.K. Dewadi, pathologist has stated on oath that after examination he gave the negative report as to the presence of spermatozoa. (7) Following are the circumstances on the basis of which the trial court found accused appellant Abdul Qayyum guilty of the offences punishable under Sections 363, 376, 302 and 201 of I.P.C. (1) The accused was acquainted and attached to Miss Reshma (victim) as he used to visit the house of Ramjani (P.W. 1), father of the deceased (This fact is admitted by the accused in his statement under Section 164 of Cr.P.C. and corroborated by the witnesses). 10 (2) P.W. 1 Ramjani, father of the deceased and P.W. 4 Zahida, mother of the victim states that at about 7.15 P.M. on 5.2.1989 accused Abdul Qayyum took Reshma with him under the pretext of giving her sweets. (3) P.W. 3 Ramesh Kumar, a shopkeeper who runs his shop at 15-16 steps away from Ramjani’s house states that on 5.2.1989 in the evening accused brought Reshma in his shop and bought biscuits for her. This statement gets corroboration from the statement of P.W. 9 Manohar Lal, another shopkeeper, who runs his shop near the shop of Ramesh Kumar. (4) Reshma did not return home thereafter. (5) After P.W. 1 Ramjani, father of the victim, lodged First Information Report at 10.10 P.M., accused Abdul Qayyum was arrested at 11.00 P.M. and at his pointing out Reshma was recovered at 11.45 P.M. (6) Accused Abdul Qayyum made extra judicial confession at the time of the recovery of the victim in the presence of Wahid Ahmed (P.W. 6) and other witnesses. (7) Statement of P.W. 13 dr. Kuldeep Dutta, who prepared the postmortem examination report 11 shows that the deceased died due to asphyxia as a result of strangulation. The said report further discloses the injuries on the private parts of the deceased, which suggests the rape committed on her before she died. (8) The chemical examiner’s report dated 1/19th September 1989 suggests that clothes of accused contained human blood. The swab of the victim was also found containing human blood. (9) In the statement recorded on 15.2.1989 by Executive Magistrate under Section 164 of Cr.P.C., the accused admitted having committed ‘sin’ though he has stated that he was under intoxication at that time. The accused has further admitted in said statement that he used to go to the house of washer man (Ramjani) and has admitted that Ramjani’s daughter used to come to him. Accused Abdul Qayyum, in his statement has also stated that when he got conscious he saw that his hand was on the mouth of the victim and in nervousness, he left the victim there. (8) We have read and examined the evidence on record. The above circumstances are proved from the evidence on record and the chain of circumstances is complete as against the accused appellant. P.W. 1 Ramjani, father of the deceased has stated on oath that accused appellant Abdul Qayyum came to his house on 5.2.1989 and took Miss 12 Reshma aged five years on his lap. The accused told this witness that he would come back after giving sweets to Reshma, but he did not return back. On this , after making search, First Information Report (Ext. A-1) was lodged with the Police on that very day. The statement of this witness gets corroboration from the statement of P.W. 4 Zahida, mother of the victim. P.W. 2 Sunil Kumar Shahni has corroborated the fact that he scribed the report (Ext. A-1) on the dictation of Ramjani. P.W. 3 Ramesh Kumar has stated on oath that accused Abdul Qayyum brought Reshma to his shop and bought some biscuits for her. The statement of this witness gets corroboration from the statement of P.W. 9 Manohar Lal, who runs a shop in front of the shop of Ramesh Kumar. These two witnesses have last seen the accused taking victim with him. On the report of P.W. 1 Ramjani Police came into action and the accused was arrested on that very day at about 11.00 P.M. near Dwarka stores. Said fact is proved by P.W. 11 Sub Inspector J.P. Juyal, who has also proved the arrest memo on the record. This witness has stated that near Dwarka stores accused was seen going in a three wheeler bearing Registration No. U.S.K. 7703 and was apprehended. This fact is also proved on the record that the victim was found lying and she was recovered on pointing out of the accused Abdul Qayyum on the very day that is 5.2.1989 at 11.45 P.M.. This fact has been proved not only by P.W. 11, Sub Inspector J.P. Juyal, but also by P.W. 14 Sub Inspector Kaluram Sharma, the Investigating Officer. Recovery memo (Ext. A-2) in this regard was prepared by Sub Inspector J.P. Juyal and the same is proved on the record. This witness has also proved the recovery of the 13 clothes of the victim from the place of incident at about 00.15 hours of 6.2.1989. These two witness have also proved recovery memo (Ext. A-3) prepared in this regard. P.W. 6 Wahid Ahmed is one of the witnesses before whom the aforesaid recoveries were made. This witness has stated on oath that at the time of the aforementioned recoveries, accused Abdul Qayyum made extra judicial confession to him and the other witnesses present that he committed rape on Miss Reshma. The factum of commission of rape gets corroboration from medical evidence already discussed above. P.W. 8 Umar Siddique is the witness of the inquest report, which was prepared by P.W. 10 Sub Inspector R.S. Tolia, who not only proved the inquest report (Ext. A-5) but also proved the other necessary papers prepared i.e. sketch of the dead body (Ext. A-8), police form no. 13 (Ext. A-9), police form no. 33 (Ext. A-10) and letter (Ext. A-12) requesting the Chief Medical Officer for postmortem examination of dead body of the deceased. It has also come on the record that when the victim was taken to hospital there she was declared brought dead. P.W. 15 Constable Krishna Dutt has proved the fact that he took the clothes of the victim in a sealed condition for chemical examination. The chemical examiner’s report as discussed above earlier shows that in the clothes of the victim human blood was found. Lastly, P.W. 18 M.C. Upreti, an Executive Magistrate, who recorded the statement of accused Abdul Qayyum under Section 164 of Cr.P.C. has proved his statement (Ext. A-28). In this statement accused has admitted that he used to work in a banana go-down. The accused has further admitted that he used to go to the house of washer man (Ramjani). The 14 accused further admitted in his statement that daughter of Ramjani aged 5-6 years used to come with him. As to the incident, he simply states that on that day he was in a drunken state and does not remember except the fact that when he got conscious he saw the child (Reshma) naked. He further states that his hand was on her mouth. Accused Abdul Qayyum further told the Magistrate that in nervousness he left the victim there. At the end of his statement, he states that he has committed ‘sin’. (9) Statements of the prosecution witnesses are natural, reliable and trustworthy. Nothing has come from their lengthy cross-examination, which creates any doubt in the testimony of the witnesses. As such we are unable to accept the contention of the counsel for appellant that the appellant is innocent and falsely implicated. (10) From the evidence on record, the chain of circumstances is complete as against accused Abdul Qayyum and each circumstance gets corroboration from the other circumstances, which suggest one and only one probability that accused Abdul Qayyum has committed murder of Miss Reshma by strangulation and before that he has committed rape on her. (11) Learned Amicus Curiae on behalf of the appellant argued that offence punishable under Section 363 of I.P.C. is not made out against he accused Abdul Qayyum. In this regard he drew out attention to the definition of ‘kidnapping’ given in Section 361 of I.P.C.. Learned counsel argued that 15 since the girl was taken with the consent of the guardian as such it does not amount kidnapping. Had the accused brought back Reshma after giving her sweets, we would have accepted the above submission of learned Amicus Curiae. But since under the pretext of giving sweets by mis- representation instead of taking back the girl to her father, he took the girl to a lonely place for which the guardian had given no consent as such it cannot be said that the offence punishable under Section 363 of I.P.C. is not made out. (12) Second argument advanced on behalf of the appellant is that offence punishable under Section 201 of I.P.C. is not made out against the accused Abdul Qayyum. We have examined the evidence on this point and found that there is substance in the submission of learned Amicus Curiae and we are of the view that there is no evidence on record that after commission of rape and murder of the girl, accused caused disappearance of any evidence or created any false circumstance to suggest anything else to mislead the investigation. As such the conviction and sentence recorded by the trial court in respect of offence punishable under Section 201 of I.P.C. is liable to be set aside. (13) Lastly, on behalf of appellant it is also submitted by learned Amicus Curiae that statement under Section 164 of Cr.P.C. is not a clear cut confession made to the Magistrate by accused as such conviction cannot be based on such statement. We are of the view that the submission of learned Amicus Curiae is misconceived for the reason that the conviction recorded by the trial court is not solely based on 16 the statement under section 164 of Cr.P.C. rather that part of statement has only taken as a corroborative evidence to the other evidence produced by prosecution to prove the charge framed against the accused Abdul Qayyum. (14) From the above discussions, we are of the view that the trial court has rightly found accused Abdul Qayyum guilty of offences punishable under Section 363, 376 and 302 of I.P.C.. The sentence awarded by the trial court on these counts is also just and reasonable. Therefore, the appeal on these counts is liable to be dismissed. However, the appeal to the extent of conviction and sentence awarded against the accused in respect of offence punishable under section 201 of I.P.C. is concerned, it deserves to be allowed. From the charge of offence punishable under Section 201 for I.P.C. the appellant shall stand acquitted. But, the appeal is dismissed in respect of the conviction and sentence awarded by the trial court in respect of the offences punishable under Sections 363, 376 and 302 of I.P.C.. Information be sent to the Court concerned and the Superintendent of Jail concerned. (Prafulla C. Pant, J.) (J.C.S. Rawat, J.) Dt. 13th April, 2007 NS