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Durvijay v. State Of U.P. - JAIL APPEAL No. 6532 of 2004 [2007] RD-AH 8530 (7 May 2007)


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Crl. Jail  Appeal  No. 6532    of  2004

Durvijai Vs. State


Reference No. 19 of 2004


Hon'ble Imtiyaz Murtaza, J.

Hon'ble Amar Saran,  J.

(Delivered by Hon'ble Amar Saran, J.)

Heard Sri  V.P. Srivastava, Sr. Advocate, learned amicus curiae for the appellant and Sri R.K. Singh, learned AGA, for the State.

This criminal jail appeal no. 6532 of 2004 has been filed by appellant Durvijai Singh against a judgement and order dated 25.11.2004 passed by Addl. Sessions Judge/FTC No. 8, Banda, convicting and sentencing the appellant to 5 years' RI and a fine of Rs. 1000/- under section 363 IPC. In default of payment of fine, the appellant has to undergo one month's RI and to 10 years' RI and a fine of Rs. 3000/- under section 376 IPC. In default of payment of fine, the appellant had to undergo a further 3 months' RI. The two sentences were to run concurrently. Under section 302 IPC the appellant has been sentenced to death and a fine of Rs. 5000/-. In default of payment of fine, he has to undergo a sentence of 3 months' RI.

Criminal Reference No. 19 of 2004 has also been preferred by the Court of Sessions under section 366 Cr.P.C. for confirmation of the sentence of death awarded to the appellant.

The prosecution case was that the informant Santu, resident of Khaipar, PS Kotwali, district Banda, had come to his sasural in Suturkhana. His five-year-old daughter Kajal had been staying at his sasural for some time. On the evening of 3.2.2004 at about 7 pm the appellant Durvijai took the girl along with him on pretext of getting her sweets. When Durvijai returned at 10 pm the informant questioned him about the whereabouts of his daughter as she had gone along with him. Thereupon Durvijai replied that he had earlier dropped her home. The next morning at about 7 a.m. when some persons of the mohalla were returning after easing themselves, they saw the dead body of a girl lying in the maidan. Then the appellant Durvijai was strictly questioned, upon which he confessed to have raped and murdered the girl. Then the persons of the mohalla and the crowd which had gathered there belaboured Durvijai severely and took him to the police station. An FIR of the said incident was lodged on 4.2.04 at 7.50 a.m. by Santu, father of the deceased Kajal, at case Crime No. 56 of 2004, under sections 363/366/376/302 IPC, at PS Kotwali, district Banda, which was at a distance of 2 km from the place where the dead body was recovered in mohalla Suturkhana.

A chik report was prepared by PW 7 HCP Chaturbhuj Singh after the informant Santu filed his written report which bore his signature. The accused had been brought to the police station by the informant Santu, Shiv Bhawan Tewari, Nawal Kishore, Kallu Rajput, Ram Bahadur, and Shivveer Singh.  

Thereafter PW 12, V.K. Srivastava, SHO P.S. Kotwali, Banda assumed investigation of the case. He recorded the statements of the informant and the other persons who had brought the accused along with them at the police station itself. As the accused was admitting to his guilt, he submitted a report to the magistrate concerned for recording the statement of the  accused under section 164 Cr.P.C. After that he proceeded to the police station where he examined the position of the corpse which was described in his case-diary. A small stick was penetrating into the vagina of  the girl and she was lying naked, at about 10 or 15 paces from a ''lamend' tree. He conducted inquest and examined the dead body along with the inquest witnesses and prepared the inquest papers (Exts. Ka 11). The witness also proved the challan nash, photo nash, letter for CMO, letter for RI and sample seal was prepared on the spot under his writing and signature which were annexed as annexures Ka 12 to Ka 16. After the inquest, the dead body was taken for postmortem through constables Ramesh Chandra and Amar Singh. The inquest proceedings took half an hour from 9.25 to 9.55 am. After that he inspected the spot on the pointing out of the informant and prepared the site-plan (Ext. Ka 17). He also prepared recovery memos, which are exhibits Ka 4 to Ka 7. When the accused was asked about his underwear he stated that after bathing he had washed that and his father Puran Singh would make a disclosure about that. As the accused had been beaten by the public, hence he was sent for medical examination. The medical examination report dated 4.2.2004 at 10.45 am prepared by the medical officer, District Hospital, Banda, UP, revealed the following injuries on the accused:

1.Multiple contusion over right side of back 19 cm x 12 cm placed over right scapular area.

2.Multiple contusion over left side of back placed below scapular area 20 cm x 14 cm.

3.Contusion on left arm dorsal aspect 6 cm x 3 cm placed 4 cm below left shoulder joint.

4.Contusion on  right arm dorsal aspect 7 cm x 2.5 cm placed 3 cm below right shoulder joint.

5.Contusion on right gluteal area 4 cm x 3 cm.

6.Contusion on left gluteal area 6 cm x 3 cm.

Opinion: All the injuries were simple in nature caused by hard blunt object. Duration was fresh.

The postmortem was conducted on the deceased on 4.2.2004 at 2.30 pm by PW 10 Dr. A.K. Bhardwaj at District Hospital, Banda. According to the postmortem report (Ext. Ka 8). The deceased was 5 years old and half a day had passed since her death. Rigor mortis was present in the upper and lower limbs although it had passed off from the neck and decomposition had not set it. He found the following ante mortem injuries on the deceased:

1.Multiple abrasions over an area of 4cm x 4 cm left side face just below eye.

2.Lacerated wound 1 cm x 0.5 cm x muscle deep right side face 2.5 cm from angle of mouth.

3.Abrasion two in number 1 x 1 cm 0.5 cm apart right side neck 2.5 cm below angle of mandible.

4.Abrasion 0.5 s 0.3 cm let side neck 3.0 cm below angle of mandible.

5.Incised wound 1.2 cm x 0.2 cm x muscle deep over left side chin.

6.Incised wound 1.0 x 0.3 x muscle deep 1 cm lateral to injury no. 5.

7.Multiple abrasions over 1.0 cm x 0.4 cm over left ear.

8.Contusion 4 x 3 cm over forehead middle part.

9. Contusion 4 cm x 3.0 cm over occipital region o/s subdural @ intra cerebral haematoma present underneath injury.

10.Lacerated wound 3.5 cm x 1.5 cm x muscle deep over vagina extending into vaginal cavity - slide taken for examination from vagina.

11.Lacerated wound 2.2 x 0.3 cm over medial side of left middle finger of hand.

12.Contusion 1.5 cm x 0.5 cm over root of nose.

Note: Mud was present over body parts LL, Arms.

There was intra cerebral haematoma present over occipital lobe corresponding to injury no. 9. The Stomach contained 100 gms semi-digested food. The small intestine contained white creamy material and faecal matter was  present in the large intestine. The gall bladder was half full. The cause of death was shock and coma as a result of ante mortem injuries. There was blood present on the frock, T-shirt, sweater, scarf and black thread (Exts. 6 to 10). Slides of the vaginal smear were sent for pathological examination through constables. According to the doctor, the deceased could have died on 3.2.2004 between 8  and 10 pm.

After examining the accused PW 12, SHO V.K. Srivastava again went to the room of the accused where his father Puran Singh was present. His father Puran Singh handed over the underwear which was in the process of drying, which he sealed (Ext. Ka 4). After that he recorded the statement of Puran Singh who expressed regret for the deed of his son. Puran Singh also told him that he had been beaten by the public when he was trying to save his son. Hence the investigating officer got him medically examined on 4.2.2004 at 1.15 pm by the medical Officer, District Hospital, Banda and one abrasion over left side of forehead 6 cm x 2 cm placed at lateral angle of eye-ball was seen and he complained of pain over his chest.

After that the I.O. recorded the 161 Cr.P.C. statements of PW 8 Chhotey Lal, who had collected the underwear of the accused from his house and sealed it. He also recorded the statements of Chhotu, Smt. Maya and Ravindra Kumar @ Dibbi. After he recommenced investigation on 5.2.2004 he recorded the statements of Smt. Jhanka Devi, PW 4, Smt. Bachchi, PW 2, Smt. Jaikali, PW 5 and Banwari Lal. He also examined the inquest witnesses, Shiv Pujan Tewari, Nawal Kishore and Raj Bahadur. On 6.2.2004 he recorded the statement of inquest witness Kallu Singh. On 20.3.2004 after completing the formalities of the investigation he submitted the charge-sheet in the Court. The recovered items were sent to the Forensic Laboratory, Agra, which in its report dated 10.8.2004 (Ext. Ka 19) has found human blood on the frock, T-shirt, sweater, scarf, blood-stained earth, wooden stick and on the beige underwear of the accused and the light blue underwear of the deceased. On the frock and on the underwear of the accused human seminal stains were seen but no seminal stains were found on the T-shirt, sweater and light blue underwear of the deceased.

A Charge under sections 363, 376, 302 IPC was framed against the appellant by the learned sessions judge on 24.7.2004, who pleaded not guilty and claimed to be tried.

Twelve prosecution witnesses have been examined in this case. PW 1 Santu was the informant and father of the deceased. He had gone to his sasural in mohalla Sutarkhana five days prior to the incident. His daughter Kajal, aged 5, had been residing there from sometime. On the date of incident at about 7 pm the accused had induced his daughter to go with him. He and his other family members had seen Kajal going with the accused Durvijai. When the girl did not return for a long time although Durvijai had returned, then he and other family members enquired from Durvijai as to the whereabouts of Kajal. Durvijai claimed to have earlier reached Kajal home. On the next day (4.2.2004) the persons who had gone to ease themselves, on returning back, informed him that in the  maidan (field) they had seen a girl lying dead. Then the informant and others went to the house of Durvijai and apprehended him. On strictly questioning him, he answered that he had killed the child by committing rape on her. There was a crowd of mohallawallas there who took Durvijai to the place of occurrence and gave him a beating. He dictated the report to Ram Suman Rajput and they took the accused to the police station, leaving some mohallwallas near the dead body. He reached the police station along with the written report and the accused at about 7.45 am. After that the police had proceeded to the spot and completed the written formalities.

PW 2 Smt. Bachchi is the Sali (sister in-law) of the informant. She had adopted her sister Jhanka's daughter Kajal. On the date of the incident, the appellant had taken away the girl Kajal to the rented quarters of his father Puran Singh at about 7 pm by tempting her with ''peanuts and pattis'. He had got the patti from Dimpi's shop. In the night he appeared to have raped the girl. Smt. Bachchi and others kept searching for the girl but she could not be found. At 10 pm when Durvijai returned home, Kajal was not with him. When they asked him where the girl was, he started making contradictory statements. Sometimes he would say that she would return the next morning and at other times, he would say that his mind was not working. Then PW 2 and others became suspicious against the accused in the night itself. The body of the deceased was found in the maidan ahead of the house of Vir Singh @ Mahavir Singh. Then the neighbours caught hold of Durvijai and questioned him severely and gave him a beating. He then admitted to have committed rape and killed the girl. They then took the accused to the police station at about 8 or 9 am. The police arrived and completed the written formalities.

PW 3, Smt. Mewa, has deposed that Puran's son Durvijai used to reside in a rented room in her house. They used to sell Itra (perfumes). When Durvijai was carrying her niece Kajal on his back, she had asked him where he was taking her in the night. Then Durvijai had answered that he was going to get her pattis at Dimpi's shop. When the girl did not return for 2 or 2 ½ hours, then Smt. Mewa and others started searching for her. When

Durvijai returned alone at 10 pm they asked him where Kajal was, then he replied that he had dropped her at home, but as Durvijai appeared to be little nervous, these  people kept searching in the night. In  the morning it was reported that Kajal's dead body was lying near the tank of Vir Singh @ Mahavir singh. Then these witnesses and others reached there and found the body. After that Santu and other mohallawallas caught hold of Durvijai and questioned him severely, whereupon he disclosed that he had committed rape on Kajal and caused her death.

PW 4, Smt. Jhanka Devi has deposed that as her younger sister Bachchi did not have any child, hence she had given her daughter in adoption to her. The accused Durvijai used to live as tenant in the house of her brother Pratap and Ballu. A day prior to the discovery of the dead body of the child at about 7 pm Durvijai after tempting Kajal that he would get her patti at Dimpi's shop had carried her and taken her away on that pretext. Smt. Jhanka Devi and other family members and neighbours kept searching for Kajal. Even when Pratap's wife Mewa had questioned Durvijai where he was taking Kajal, he replied that he was going to get her pattis. When Durvijai returned after 3 hours and was questioned about the whereabouts of Kajal, he replied that he had dropped her at their place. He then contradicted himself and said that she would be recovered by the next morning. He further stated that at that time his mind was not functioning. During the night this witness kept searching for Kajal. In the next morning some persons who had gone ahead of Vir Singh's farm stated they had seen a girl-child's dead body near the tank there. When Smt. Jhanka and others went to the spot, they found Kajal's dead body. Immediately Santu, Pratap and other neighbours caught hold of Durvijai and strictly questioned him and after being beaten by them, he confessed to have killed the girl. Then they took Durvijai to the place where the corpse was lying. He then began to apologise that he had murdered the deceased after committing rape on her. After that Santu and others took Durvijai to the police station. The next morning the investigating officer had come and questioned the witnesses at their places.  

PW 5, Smt. Jaikali is another neighbour of Kajal's adopting  relatives. She is also a witness of last seen who had seen Durvijai taking Kajal at about 6 pm. When he had returned at 10 pm without the girl, he was questioned but he stated that he had left the girl there earlier. He was saying that the girl would be found by the next morning and at that time his mind was not functioning. The whole night Babu and other relations kept searching for Kajal. The next morning when some persons returned back from the tank near Veer Singh's farm, after easing themselves, they informed the witnesses that they had seen the dead body near the tank, whereupon the witnesses went there  and identified Kajal's corpse. After that Durvijai was apprehended by Santu and his relatives and when he was given a beating and questioned strictly, he confessed to have raped and murdered the girl. After that Santu and others took Durvijai to the police station. By 8 or 9 am the police arrived at the spot and completed the written formalities.

PW-6 Ravindra Kumar Gupta @ Dimpi is a shopkeeper to whose shop the appellant had taken the deceased Kajal for buying her peanut pattis. This allegation was confirmed by this witness who deposed that the appellant Durvijay had brought Kajal to his shop on 3.2.2004 at about 7.40 pm. and had purchased pattis worth one rupee from his shop. The appellant was known to him  from before as he used to make purchases from his shop. On later seeing the body of the recovered the next day, he recognised the corpse to be of the same girl whom the appellant Durvijay had brought to his shop the previous day.

Apart from the aforesaid six witnesses of fact,  PW-7 H.C.P. Chaturbhuj Singh, PW-8 Chottey Lal, PW-9 Kallu Singh, PW-10 Dr. A.K. Bharadwaj, PW-11 Dr. S.K. Bajpayee, PW-12 S.H.O. V.K. Srivastava, have been examined as formal witnesses.

PW-7 H.P.C.Chataurbhuj Singh prepared a  chik F.I.R. on the basis of the F.I.R. at P.S. Kotwali on 4.2.2004 and made the G.D. Entry  (Ext. Ka 3) on the basis of the same.

PW 8 Chottey Lal is the witnesses of the recovery of the  "Kathai" (beige) underwear of the appellant from his house on 4.2.2004 at 11 of 12 A.M. which was handed over by the appellant's father Pooran Singh to the police and has proved the sealing and preparation of the recovery memo (Ext. Ka 4) by the police.  The said underwear had been washed and was lying on the Khaprail (tiles) of the house for drying.

PW-9 Kallu Singh Rajput is a witness of the inquest, and recovery  of a 1 ½ feet long stick which was inserted in the vagina of the deceased whose recovery memo was exhibit Ka-5, the recovery of plain and blood-stained earth from the spot (exhibit Ka 6 ) and the underwear of the deceased which was lying at about 20 or 22 paces from the dead body (Exhibit Ka-7).

PW-10 Dr. A.K. Bharadwaj, conducted the postmortem as already described herein above.

PW-11 Dr. S.K.Bajpayee, who  was  a Pathologist in District Hospital Banda, examined the slide of the decease's vaginal smear, but found it negative for spermatozoa. His original report and photocopy are marked Exhibits Ka 9 and 10.

PW-12 SHO V.K. Srivastava was the investigating Officer who conducted the investigation of this case as has been described hereinabove

It has been argued by Sri V.P. Srivastava that the evidence in the case for establishing the complicity of the accused in the offence is not reliable. The accused had been implicated out of suspicion and even his father's name and address was not mentioned in the chik F.I.R. which gave rise to suspicion as the accused was residing in that house with his father. The appellant was not said to have been arrested immediately after the incident at the spot. The evidence of last seen was insufficient and does not complete the chain of circumstances and the extra-judicial confession was not voluntary as some witnesses have admitted that the accused was tortured before he confessed and it would be unsafe to record a conviction on the basis of such flimsy evidence, and that in any case this was not the rarest of rare case where only a sentence of death was justified.  

On the other hand, it was contended by the learned AGA that there was sufficient evidence in for the form of last seen evidence, extra-judicial confession recoveries of semen and blood stains on the clothes and other evidence  to conclusively establish the complicity of the accused in this offence and the chain of circumstances was complete, and in  any case there was no reason whatsoever for false implication of the accused.

After a careful examination of the evidence on the record and after examining the rival contentions of the prosecution and the defence and examining the case law on the point, we are of the view that there is sufficient evidence for recording the guilt of the appellant in this case.

The principles for appreciating a case of circumstantial evidence have been aptly enunciated in the case of Padala Verabira Reddy Vs. State of AP: 1989 Supp (2) SCC 706, in paragraph 10, on pages 710-711 as follows:

"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Likewise the same principles as in Padala Verabira Reddy's case (supra) are reiterated in a number of  pronouncements of the Apex Court viz. Sharad Birdhi Chand Sarda vs. State of Maharashtra, AIR 1994 SC 162, Shivaji Saheb Rao Bobade vs. State of Maharashtra, AIR 1973 SC 2622, Dhananjoy Chatterjee vs. State of West Bengal, JT 1994(1) SC 33, and Laxman Naik Vs. State of West Bengal  that in a case of circumstantial evidence, the circumstances against the accused must be firmly established, the circumstances must irrefutably point towards the guilt of the accused, the chain of circumstances should in all human probability suggest that the accused alone had committed the crime, and the circumstances should only be consistent with the guilt of the accused and inconsistent with his innocence.

Tested in the light of the aforesaid criteria, we think that in the present case the evidence unerringly points to the guilt of the accused and the evidence is inconsistent with any other hypothesis but the guilt of the accused.

Thus there is clear evidence of the deceased having been last seen with the accused by five witnesses, PW-1 Santu, the informant, who was the father of the victim Kajal, PW-2 Smt. Bacchi, who was the Sali (wife's sister) of the informant who had adopted the deceased, PW-3 Smt. Mewa who was the Mami (wife of maternal uncle) of the deceased, PW-4 Smt. Janki Devi mother of the deceased, and PW-5 Jai Kali Devi. They have unanimously deposed that at about 7 P.M. on the fateful evening  (i.e. of 3.2.2004), the appellant Durvijay took the five year old deceased Kajal along with him by offering her the temptation of getting her some peanut pattis. As Durvijay used to reside in that house (which was the informant Santu's Sasural) and known to the witnesses no suspicion may have been aroused about his intentions, and no serious objection appeared to have been raised against the appellant taking away the little girl for getting her the promised sweets.

        The evidence of PW-6 Ravindra Kumar Gupta @ Dimpi who was the shopkeeper, to whose shop the appellant had taken the deceased for getting her Peanut Pattis on 3.2.2004 at about 7.45 PM is also corroborative of the last seen evidence given by the PWs 1 to 5. Moreover, this witness states that on the next morning when the dead body was recovered he identified the dead body to be of the same girl who had been brought by the appellant the previous evening to his shop for purchasing the Peanut Patti. He also gives a good reason for knowing the accused  from before because he states that the  accused used to purchase items from his shop. The fact that this witness is unable to describe the frock worn by the deceased although he describes  the appellant's clothes only shows the natural quality and freedom from tutoring of this witness. Also no reason whatsoever is suggested for this witness to falsely implicate the appellant in giving this evidence of last seen.

      Likewise simply because Pws 2 to 4 are relations of the informant PW 1 and the deceased and PW-5 is their neighbour, no good reason exists why the witnesses PWs  1 to 5 should falsely implicate the appellant if he had no concern with this crime. It is also not very  significant  that PW-1 has stated that the Government Pleader had instructed him what he should depose. Very often, as the learned trial judge has rightly observed, that Government pleaders  question witnesses about an incident before he gives evidence in Court to prevent them from being baffled and confused by the astute skills of the cross-examining counsel, so nothing turns on the mere admission of the witness that he was guided by the public prosecutor as to what he should depose. This suggestion alone  would certainly provide no ground for discarding the testimony of the witnesses which appears to be very natural and uncontrived in the circumstances.

Moreover when the appellant returned at 10 PM in the night all alone without the girl and was questioned by the witnesses  as  to where the girls was, he gave conflicting replies. He first stated that he had dropped her back earlier, then changed this version and stated that she would be found by next morning and then he again stated that his mind was not working. Recovery of the girl's corpse the next morning near a tank adjoining the fields of Balbir Singh @ Mahabir Singh by persons who had gone to ease themselves there and the inconsistent and vacillating replies of the appellant when he was questioned the previous night about the whereabouts of the deceased are additional pointers to his guilt.

The time between which the appellant took away the deceased (i.e. 7 PM the previous evening) and the recovery of her corpse on  4.2.2004 at 7 AM the next morning is too short for any suggestion that after the appellant had dropped her back home in the night (as he was claiming) the 5 year old deceased could have wandered off somewhere on her own and someone else could have committed her rape and murder. This claim of dropping the deceased in the evening therefore definitely appears to be an exaggeration. This is not a case where a grown up abductee is said to have gone away with an accused person and after several days the dead body is recovered and a plausible argument  is raised that the last seen evidence may not be sufficient because it could not be ruled out that after the alleged abductor left the abductee she/he may have become a victim of a crime causede by someone else in the intervening period. Such a speculative possibility is however inconceivable in the circumstances of the present  case where the appellant claims to have dropped back the 5 year old to her home in the night prior to his return at 10 p.m.

As after the recovery of the dead body at 7 a.m. the next morning near the field of Mahabir, the witnesses had apprehended the accused and questioned him severely whereupon he had confessed to having raped and murdered the girl, the learned defence counsel relying on the cases of Ahir Raja Kheema AIR 1956 Sc 217, Meera Ibrahim 1967 CRILJ 860,  2005 (1) JIC 149 (SC) Raj Kumar Vs. State of M.P.  And 2005 (10) SCC 322 Rahul @ Rao Sahab has argued  that such an extra- judicial confession which was preceded by some third degree measures must be discarded. In the present case, we find however that the said extra-judicial confession appears to be corroborated by another circumstance that the washed underwear of the appellant contained seminal stains and blood stains which was also found on the frock of the deceased. Human blood stains were also seen on the T-shirt, sweater, scarf, plain earth piece of stick which was inserted in the vagina of the deceased and the underwear of the deceased.

The washing of his underwear by the appellant which was handed over to the police by his father when it was drying on the  Khaprail (tile roof) of the house the next morning is also another suspicious circumstance for connecting the accused with the crime.  It appears that he had sought to wash his underwear in order to make the seminal stains and blood stains disappear, which may have been present on the underwear, but he failed in that endeavour as the pathologist's examination report revealed  presence of blood and semen stains on the underwear. The deceased also had an injury on her head which had resulted in intra cerabral haematoma over the occipital lobe and abrasions and incised wounds on her body which were consistent with the case of criminal assault on her which has been admitted by the appellant in his extra judicial confession.

In a Full Bench decision in the case of  Emperor Vs. Misri, 1909 ILR(XXXI) 592, it has been held that where an accused had got recovered certain ornaments of the deceased because she was given an inducement, while in police custody, that nothing would happen to her if she got the ornaments recovered. The court held that whatever limitation would be placed on the admissibility of the evidence in view of the fetters contained in Sections 24 to 27 of the Evidence Act, the evidence of that accused, that she went to a particular place and got the ornaments recovered, was relevant to the conduct of the accused and was admissible under Section 8 or other preceding sections of the Indian Evidence Act.

In the case of  State Vs. N.M.T. Joy Immaculate, (2004) 5 SCC 729,  it has been held by the Apex Court that even if it was assumed that an order granting police custody was illegal, the search and seizure under such an order does not become automatically vitiated. Paragraph 15 of the aforesaid report may be usefully extracted: 15. The law of evidence in our country is modeled on the rules of evidence which prevailed in English law. In Kurma Vs. R (All ER 236, an accused was found in unlawful possession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under:

The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained."  

It is also not of much significance that the father's name of the appellant was not mentioned in the FIR even though the accused was living in that house with his father. As admittedly Santu the informant and father of the deceased Kajal belonged to another Village Khaipar and had only come to visit his Sasural in village Sutarkhana a few days before the incident. The Sessions Judge has rightly observed that in such circumstances it was not necessary for him to know the father of the accused or he might have been temporarily confused about the name at the appellant's father when he lodged the report at PS Kotwali. In fact the non-mention of the father's name is an indicator of the genuineness of the report. If the FIR was tutored and had indeed been brought into existence subsequently, as a result of consultation then the name of the father and his residence would definitely have found a place in the FIR and the absence of the name only shows the un-premeditated,  natural and untutored quality of the FIR which is a guarantee of its genuineness and reliability.

In this context it has been rightly emphasized in several cases that there should be no exaggerated devotion to the rule of benefit of doubt, and the society also has a legitimate need for social justice. In this context it has been sapiently observed by the Apex Court in paragraphs 20, 21 and 22 of Sucha Singh v. State of Punjab, AIR 2003 SC 3617:

"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and others (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840) . A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties." (Per Viscount Simen in Stirland v. Director of Public Prosecutor (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.

21.In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra (1974 (1) SCR 489 (492-493) : AIR 1973 SC 2622 : 1973 Cri LJ 1783, para 6

". . . . . . .The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. . . . . . . . . . ."

". . . . . . . . . .The evil of acquitting a guilty person light heartedly as a learned author Clanville Williams in 'proof of guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. . . . . . . . ."

". . . . . . . .a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. . . . . . . . ."

22.The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal (AIR 1988 SC 2154). Similar view was also expressed in Gangadhar Behera and others v. State of Orissa (2002 (7) Supreme 276). 1989 Cri LJ 288 (AIR 2002 SC 3633)" (Emphasis added).  

On summarizing the evidence and testing the same in the light of the pronouncements of the apex Court spelled out above we find that the chain of circumstances elicited in this case in all human probability suggest that the accused alone has committed the crime, and the circumstances are only consistent with the guilt of the accused and incompatible with his innocence. These circumstances are:

1.There is consistent evidence of last seen i.e. of the deceased Kajal being taken away by the appellant on the pretext of buying her some peanut pattis which has been mentioned by as many as five witness. There is no good reason, for the said five witnesses to falsely implicate the appellant for this crime.

2. PW-6 Ravindra Kumar Gupta @ Dimpi, the shopkeeper, has also corroborated the evidence of last seen given by PWs 1 to 5 and stated that the accused had brought the deceased to his shop for purchasing  peanut pattis for her for a rupee. He knew the accused  who was his old customer from before and he recognized the corpse that he saw next morning, to be of the same girl that the appellant had brought to his shop the previous evening. No reason is suggested for false implication of the appellant by this witness.

3.Inconsistent explanations were given by the accused when he returned at 10 PM alone after taking away the girl with him at about 7 PM to the effect that he had earlier dropped her to her house or she would return back by the next morning or that his mind was not functioning at that time.

4.The dead body was recovered very soon the next morning at 7 AM and there was no reason to suppose that in the intervening period after the accused claimed to have dropped her home in the night, the five year old could have wandered off somewhere and been raped and murdered by someone else, giving a lie to the appellant's claim of dropping the girl home  sometime in the evening.

5.The accused had been apprehended by the witnesses before whom he confessed to having raped and murdered the girl when he was severely questioned by them.

6.The said confession was confirmed by the presence of blood and semen on his underwear and the presence of bloodstains on the underwear and other clothes of the deceased and semen of her frock.

7.The attempt of the accused to try to destroy  the evidence by washing the underwear which was recovered the next date at 11 or 12 AM from his house and was handed over by his father Pooran Singh to the police and which revealed the presence of semen and blood stains on pathological examination.

However, one last question remains as to what should be appropriate sentence in this case, and whether this was the rarest of rare case where only an award of death sentence was justified and the other option of life imprisonment unquestionably foreclosed. In a recent decision of the apex Court in Amrit Singh V. State of Punjab, Cr. Appeal No. 1327 of 2005 decided on 10.11.2006 involving rape of a 7-8 year old child where the ante mortem injuries showed bleeding from the vulva, dry leaves in the hairs, mouth open and froth trickling out from left angle, but there was no evidence of strangulation and excess of bleeding appeared to be the cause of death, and shock and haemorrhage and not asphyxia had been described as the cause of death, the apex Court concluded that even though the offence of brutal rape "may look heinous , but under no circumstances, it can be said to be a rarest of rare case" justifying a death sentence and awarded imprisonment for life. The act of the appellant Amrit Singh therein was described as a momentary lapse on seeing a lonely girl at a secluded place.

The present case may also suggest loss of control on part of the appellant who may have got overwhelmed by sexual desire which may have led him to commit this crime. Also  he does not appear to have been completely successful in having intercourse with the girl as the pathologist's report indicated that seminal smear was negative for spermatozoa, and perhaps it was due to frustration in not being able to successfully complete the act of coitus that he may have inserted the stick in the vagina and conceivably may have even banged her head on the ground causing the 4 cm x 3.0 cm contusion over the subdural occipital region with intra cerebral haematoma present underneath the injury which  may have caused her death. But that is not to say that no offence of rape has been disclosed, as partial penetration is also sufficient for constituting an offence of rape, and the learned Sessions Judge is justified in convicting the appellant also under section 376 IPC. But it should be kept in mind that the accused did not run away immediately after the incident, and when he had returned home after the incident at 10 p.m. he was giving incoherent replies and even saying that his mind was not working. The next day also the public were easily able to apprehend the accused after the dead body was discovered and he had not absconded. These are mitigating circumstances suggesting a mental lapse about the consequences which may have resulted in the criminal act.  

Again in Surendra Pal Shivbalakpal, v. State of Gujarat, 2004 Cri. L.J. 4642 where the accused who was a migrant labourer aged 36 years and was found involved in the kidnapping, rape and murder of a little girl, and where the cause of death was asphyxia and the dead body of the deceased Savitri @ Sanju was even discovered in pursuance of the statement of the appellant under section 27 of the Evidence Act. However the death sentence awarded by the Courts below was altered by the Apex Court to a sentence of life imprisonment on the grounds that there was no evidence that the appellant was earlier involved in any other criminal offence. He was a migrant labour from U.P. and living in impecunious circumstances and it could not be said that he would be a menace to society in future, and no material was placed to support such a contention by the prosecution. Hence the Hon'ble Supreme Court did not think that it was a 'rarest of rare case' calling for the death penalty, and instead awarded life imprisonment. We think to some extent the position of the present accused is similar, and this is not also the rarest of rare case where the death penalty is the only option.

The result is that the conviction and sentence of the appellant to 5 years R.I. under section 363 IPC and a fine of Rs. 1000, in default one month's R.I., and a sentence of 10 years R.I. under section 376 IPC and a fine of Rs. 3000, in default 3 months R.I. awarded by the learned Sessions Judge are upheld. However the sentence of death awarded by the learned Sessions Judge under section 302 IPC is altered to a sentence of imprisonment for life. However the additional fine of Rs. 5000 under section 302 IPC, and in default 3 months R.I. awarded by the trial Judge is upheld. All the sentences shall run concurrently. The Reference for confirmation of the death sentence under section 366 Cr.P.C is rejected. With the aforesaid modification the appeal is dismissed.  

Dated: 7.5.2007            



Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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