1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Mujahid Ali vs. State of Rajasthan (1)D.B.Criminal Appeal No.1037/2004 State of Rajasthan vs. Mujahid Ali (2)D.B.Criminal Appeal No.508/2005 Date of Judgment :: 18th February, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. DL Mothsra, for the appellant. Mr. KR Bishnoi, PP, for the State. (In DBCr.Appeal No.1037/2004) Mr. KR Bishnoi, PP, for the appellant State. (In DBCr.Appeal No.508/2005) .... BY THE COURT : (PER HON'BLE MATHUR,J.) By judgment and order dated 29.8.2003, learned Additional Sessions Judge, Bhadra, District Hanumangarh, convicted the appellant for the offences punishable under Sections 302, 376(2)(F) and 201 of the Indian Penal Code and also sentenced him as under:- 2 Under Section 376(2)(F) IPC : Rigorous imprisonment for life term with fine of Rs.10,000/-, to further undergo one year's simple imprisonment in default of payment of fine. Under Section 302 IPC : Rigorous imprisonment for life term with fine of Rs.10,000/-, to further undergo one year's simple imprisonment in default of payment of fine. Under Section 201 IPC : Three years' rigorous imprisonment with fine of Rs.5,000/-, to further undergo six months' simple imprisonment in default of payment of fine. To assail the conviction and sentence aforesaid, this appeal is preferred. The facts of the case, as emerging out from the record, are that on 21.2.2002 at about 7:30 PM one Khusi Mohd. submitted a written report (Ex.P/15) to the Station House Officer of Police Station Bhadra with assertion that he is a resident of Ward No.1, Town Bhadra and his sister Smt. Khurshida w/o Farookh Ali, resident of Taranagar was staying with him these days. In the evening, at about 4:00 PM when he returned from his employment, his sister Khurshida informed about missing of her daughter Sayra, aged six 3 years. He made search of the girl in neighbourhood and also made an announcement in this regard from loud speaker of the Masjid situated in the colony. On getting no adequate information about the girl, he alongwith his brother Malakdeen and Ameen made intense search and while doing so they found dead body of Sayra near Bhadra Canal, an Forest Department's land. At that time the salwar worn by Sayra was down upto knees and a salwar tightening thread was wrapped around her neck. Marks of bleeding were also existing on her vagina. On receiving this written information, investigation was initiated after registering a case. During the course of investigation photographs of dead body were taken, site plan was made, foot print moulds near the place wherefrom body was found, were taken and the postmortem of the body was also made by a competent medical board. The clothes worn by deceased girl, vaginal swab and marks of blood found were sent for forensic examination to the Forensic Science Laboratory. On 22.2.2002, accused appellant was arrested and after completing necessary investigation he was charge-sheeted for the offence punishable under Sections 376(2)(F), 302 and 201 IPC. Being exclusively triable by Sessions court, the matter was committed on 15.4.2002 to the court of learned Additional Sessions Judge, Nohar and then the same was transferred to Additional Sessions Judge, Bhadra for holding trial. 4 During the course of trial the prosecution supported its case by getting 16 witnesses examined and by placing reliance on 69 documents, those were exhibited. The accused appellant was put forth for examination as per provisions of Section 313 Cr.P.C., wherein he denied all the allegations. In defence the accused appellant produced one witness Ibrahim as DW-1 and also three documents Ex.D/1 to Ex.D/3. After considering evidence available, learned trial court by the judgment impugned convicted and sentenced the accused appellant. While assailing validity of the conviction recorded and sentence awarded, the contention of counsel for the appellant is that the entire case of the prosecution is based on circumstantial evidence and the trial court failed to appreciate that the circumstances available in no way are completing the chain to reach at the conclusion that the accused appellant committed the offence as alleged. Counsel for the appellant has also pointed out certain contradictions in the statements of PW-16 Hemchand Meena, the investigating officer. He has also pointed out that the recoveries made and relied upon are highly doubtful, thus, the appellant deserves acquittal. As per counsel for the appellant the accused was initially arrested merely on basis of bald suspicion and no reason or circumstance is disclosed for such suspicion. 5 While meeting the arguments advanced by counsel for the appellant, it is contended by learned Public Prosecutor that the instant one is a case where a heinous crime is executed by the appellant and that is established adequately by the prosecution. Learned Public Prosecutor has categorically contested each and every contention raised by counsel for the appellant. We have given our anxious consideration to the arguments and also examined the entire record. While supporting the conviction and sentence awarded, learned Public Prosecutor urged that though the present one is a case having no eye witness, but the chain of circumstances establishes guilty of the accused appellant beyond shadow of doubt. The investigating agency quite tenaciously collected the evidence and proved the same with all efficacy and truth. Learned Public Prosecutor in detail pointed out all the facts established and asserted that as a matter of fact trial court was quite lenient in awarding the sentence. A request, therefore, is made to accept the State appeal for enhancing the sentence. As stated in introductory paras, investigation was initiated in the instant matter on receiving a written report (Ex.P/15) submitted by Khusi Mohd. Prior to submission of report Ex.P/15, the 6 Station House Officer of Police Station, Bhadra on 21.2.2002 at about 6:05 PM received a telephonic message that a dead body is lying behind the residence of Leeluram Patwari near Canal. On receiving this information, the Station House Officer alongwith other police officials proceeded to the place where body of deceased girl found. On spot, the Station House Officer received a written report and proceeded with the investigation. The Investigating Officer appeared in witness box as PW-16 and in quite detail he narrated all the circumstances existing. PW-16 stated that after receiving written report from Khusi Mohd. he found certain foot marks at the spot and those were moulded through plaster of paris. The moulds of the foot marks were again taken for left and right legs near the canal bridge. The aforesaid foot marks were taken in presence of Malakdeen and Ameen. As per PW- 16, accused Mujahid Ali was arrested in presence of motbir Shakur Khan and at that time accused Mujahid Ali voluntarily informed that he committed ill-deeds with child and killed her. The accused also disclosed the place where the rape was committed and strangulated the girl. A report in this regard was prepared and in presence of motbirs Malakdeen and Sarfudin. Accused Mujahid Ali also voluntarily disclosed the facts relating to pant and shirt worn by him at the time of incidence and those were recovered from residential house of the accused in presence of Malakdeen and Sarfudin. During the course of arrest 7 the accused also voluntarily informed about chappals worn by him and those too were recovered from his residence alongwith a gogals. The recovery of aforesaid material too was made in presence of Malakdeen and Sarfudin. On basis of disclosure statement of accused an iron box was also recovered in which dead body of girl was carried by the accused. The recovery of the aforesaid box was also made in presence of Malakdeen and Sarfudin. All the articles recovered during the course of investigation were produced before the court and those were verified by PW-16 Hemchand Meena. PW-1 Malakdeen in his statements with all confidence identified all recovered articles. The case of the prosecution is also supported in totality by Khusi Mohd. (PW-2) and Khurshida (PW-4). It is also important to note that independent witnesses Madi Devi (PW-6), Aasmin (PW-7) and Savitri (PW-3) also stated in quite definite terms that they saw accused Mujahid Ali carrying a box. This is the box which is said to be used to transport dead body of girl child. It is also pertinent to note that the zip of the pant which was recovered at the instance of the accused and the box recovered were having blood stains and those were matching with the blood group of the accused. The State Forensic Science Laboratory's report Ex.P/52 also found that right foot chappal impressions reproduced in the moulds were tallying with right foot 8 chappal recovered during investigation. The left foot chappal impressions reproduced in the moulds too were tallying with left foot chappal sole impression Ex.Gha/L. In view of the evidence discussed above, we are of the view that there is no breakage of the circumstantial chain to disbelieve the prosecution case as accepted by the trial court. The appeal preferred by the accused, therefore, is having no merit and deserves rejection. Accordingly, the same is dismissed. The other appeal i.e. DBCr.Appeal No.508/2005, preferred by State of Rajasthan for seeking enhancement of the sentence is also heard, but in totality of the facts and circumstances we are of the view that instant one is not a case of rarest of rare nature demanding even enhancement of the life term imprisonment by the capital sentence, thus, this appeal too is dismissed. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.