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RAJU versus STATE OF PUNJAB.

High Court of Punjab and Haryana, Chandigarh

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RAJU v. STATE OF PUNJAB. - CRA-356-DB-1997 [2004] RD-P&H 5 (20 January 2004)

Crl Appeal No. 356-DB of 1997 1

Raju v. State of Punjab.

Present: Mr. R.S.Malik,Amicus-curiae , for the appellant Mr.A.S.Virk, Addl.Advocate General,Punjab.

PRITAM PAL,J:

Appellant, Raju (25 years), has brought this appeal against judgment and order of learned Sessions Judge, Hoshiarpur, dated October 12,1995, whereby he was convicted under Sections 302 and 376 of the Indian Penal Code and then sentenced to undergo R.I. for life with a fine of Rs. 1000/-, in default of payment of fine further to undergo R.I.

for four months under Section 302 of the I.P.C. He was further sentenced to undergo R.I. for 10 years with a fine of Rs. 500/-, in default of payment of fine to further undergo R I for two months under Section 376 of the I.P.C. However, both the substantive sentences were ordered to run concurrenty.

The prosecution story, as divulged by complainant Ram Crl Appeal No. 356-DB of 1997 2

Chand ( PW-6) at the trial, is like this:- On September 15,1994, at about 7.30. a.m. Usha Devi (10/11 years ) , a student of 5th

Class, since deceased , daughter of Ram Chand, complainant (PW-6), resident of Fattan Chak, had gone to village Mirpur to attend sports meet, but in the evening, she failed to return to her house, There-upon, Ram Chand, her father, in the company of Darshan Singh, a Member Panchayat, Dewan Singh Sarpanch and Kartar Singh, Lamberdar started searching her, but could not find any clue till late night. In the next morning i.e. on September 16,1994, they again started searching her and ultimately, her dead body was found lying in the sugarcane fields of one Parbhjinder Singh (PW-8). They further observed that her salwar had been removed and some of its portion was found wrapped around her neck . Her mouth was also found to have been gagged with some portion of the salwar. After making the enquiry from the surroundings, it was revealed that Usha Devi had taken water at the tubewell of one Billu Gujjar on September 15,1994. Further, it was also revealed that Raju appellant ( who was mistakenly described as Partap Bhaiya in the F.I.R.) had also followed her. Then said Raju was found missing.

There-upon, he (the complainant) became sure that her daughter was first Crl Appeal No. 356-DB of 1997 3

raped and then murdered by said Raju. After ascertaining the aforesaid facts, Darshan Singh, Member Panchayat, was left at the spot to guard the dead body and he (Ram Chand complainant) himself in the company of other members of the searching party, left for Police Station, Dasuya, for lodging the report. On the way, at Shrinhpur Chowk, the complainant met Gurnam Dass ASI (PW-12) and he then made his statement Ex.PH at 1.15 p.m., in the above narration of facts. Gurnam Dass ASI, then made his endorsement Ex.PH/1 and sent the same to Police Station, Dasuya through SPO Sukhjinder Singh for registration of the case, on the basis of which, formal FIR Ex.PH/2 was recorded under Sections 302/376/366 of I.P.C. by SI Harbans Singh against the appellant at 1.30.p.m. on September 16,1994. The ASI in the company of the complainant and other police officials went to the place of occurrence and prepared inquest report Ex.PC. He then sent the dead body for post mortem examination. At the spot, he also prepared rough site plan Ex.PL with its correct marginal notes in his hand. From the spot, he also collected blood stained earth vide recovery memo Ex.PJ. Further, he also found right foot print at the spot and so, he prepared the mould of Crl Appeal No. 356-DB of 1997 4

the same in the presence of Balbir Singh Head Constable and Amar Nath (PW-4). In that behalf, he also prepared report Ex.PG. On return to the Police Station, he deposited the aforesaid case property with MHC.

Thereafter, he searched for the accused/appellant, who was employed as a labourer with Prabhjinder Singh (PW-8), but he was found absconding.

On September 21,1994, at about 6/7.00 p.m., appellant Raju contacted his previous employer Charan Singh (PW-10) and then confessed his guilt before him and further asked him (Charan Singh) to produce him before the police. Charan Singh then advised him to come on the next morning as he was busy on that date, but thereafter, he did not turn up. It was on October 15,1994 that Dewan Singh, Sarpanch of village Fattan Chak had produced the appellant before Inspector/ S.H.O.Nirmal Singh (PW-11). There-upon, he was arrested and then produced before Sh.B.K.Gaur, Judicial Magistrate Ist Class, Dasuya, on October 16,1994 and there, an application Ex.PE was moved for taking his right foot print for comparison. Accordingly, right foot mould of the appellant Ex.P1 was taken by the police in the presence of the Judicial Magistrate, who made his endorsement Ex. PE/1 in that behalf.

Crl Appeal No. 356-DB of 1997 5

After completion of the formal investigation, report u/s 173 Cr.P.C. was prepared and filed in the Court by Inspector Nirmal Singh (PW-11), the then S.H.O, Police Station, Dasuya.

Appellant Raju was charge-sheeted for commission of offences punishable under Sections 376 and 302 of the I.P.C. by the learned trial Court, vide its order dated February 13,1995, to which he pleaded "not guilty" and claimed trial.

The prosecution, in order to substantiate its case, examined as many as 17 witnesses; namely, PW-1 Dr. Rajesh Kumar Bagga, Medical Officer, Civil Hospital, Dasuya, he conducted the post mortem examination on the dead body of Usha Devi and prepared his report Ex.

PA; he also gave medical opinion Ex.PD/1 of Raju appellant and found him fit to perform sexual intercourse; PW-2 Sh.B.K.Gaur, Judicial Magistrate Ist Class, Dasuya, in his presence, test mould of right foot of the appellant was taken; PW-3 Surinder Kumar, Draftsman, he prepared the scaled site plan Ex. PF of the place of occurrence; PW-4 Amar Nath, he is a witness to the recovery memo Ex.PG in respect of taking the mould of the right foot of the appellant from the spot; PW-5 Crl Appeal No. 356-DB of 1997 6

Ram Kishan, he had seen the appellant in a upset condition, while coming out of the sugarcane fields on September 15,1994 at about 2.00 p.m. PW-6 Ram Chand, he is father of deceased Usha Devi and lodger of the FIR; PW-7 Darshan Singh, Member Panchayat, he has corroborated the version of the complainant, being a member of the searching party; PW-8 Parbhjinder Singh, he is employer of the appellant and owner of the sugarcane fields from where dead body of Usha Devi was recovered; PW-9 Harvinder Singh, Photographer, he proved photographs Ex.P-3 to P-5 and negatives thereof as Ex.P-6 to P-8; PW-10 Charan Singh Safri, he was a previous employer of the appellant, before whom, he had made extra judicial confession; PW-11 Inspector Nirmal singh and PW- 12 Gurnam Dass ASI (PW-12), the role assigned to them has already been given while narrating the prosecution story; PW-13 MHC Resham Singh, PW-14 Constable Balkar Singh, PW-15 Head Constable Chamkaur; PW- 16 Head Constable Jaswant Singh and PW-17 Constable Tarlok Singh, submitted their respective affidavits Exs.PM,PN,PO,PQ and PR to prove the link evidence.

The learned Public Prosecutor, vide his statement dated June Crl Appeal No. 356-DB of 1997 7

14,1995, also tendered into evidence the reports of Forensic Science Laboratory Exs.PS, PT, PU and PU/1. According to report Ex.PU/1, crime mould of right naked foot taken from the scene of crime tallied with the test mould of right foot of Raju appellant.

After closure of the prosecution evidence, the appellant was examined in terms of Section 313 of the Code of Criminal Procedure,wherein he denied all the incriminating evidence appearing against him. In answer to last question, he stated as under:- "I am innocent. I was arrested from the

house of Mehar Singh with whom I was employed as a farm labourer in V. Fattan Chak and was falsely implicated in this case on suspicion"

However, he led no evidence in defence.

After appraisal of the entire evidence brought on the file and hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the appellant, as indicated in the opening part of this judgment. This is how feeling aggrieved, the appellant has come up in this appeal.

Crl Appeal No. 356-DB of 1997 8

We have heard the learned counsel for the parties and with their assistance have gone through the entire record carefully.

The main plank of argument of learned counsel for the appellant is that in this case, there is no direct evidence, which could connect the appellant with the commission of crime. At the second place, he also assailed the recovery memo Ex.PG in respect of taking the mould of right foot print from the place of occurrence. According to him, it was not possible to find a clear cut foot print from the spot as the land under the sugarcane crop was dry one. Further, he also argued that in the FIR, the complainant had given the name o f the suspect as Partap Bhaiya, whereas the appellant was never known as such. He then also made reference to the statements of Parbhjinder Singh, employer of the appellant and PW-11 Inspector Nirmal Singh and then contended that they both are not in unison with regard to the date of arrest of the appellant. At the fag end of his argument, the learned counsel also made reference to the medical opinion Ex..PD/1 consisted in the statement of of PW-1 Dr. Rajesh Kumar Bagga, who did not find any injury on the person of the appellant. According to the learned Crl Appeal No. 356-DB of 1997 9

counsel for the appellant, had he (appellant) committed an offence of rape, then deceased Usha Devi must have resisted and could have also caused injuries on his person. At the last leg of his argument, he contended that all these aforesaid points go a long way to show that the appellant was involved in this case falsely on the basis of suspicion only and as such, he could not have been convicted and sentenced by the learned trial Court.

On the other hand, Mr. A.S.Virk, learned Addl.A.G.

appearing on behalf of the State of Punjab has repelled the aforesaid points of arguments raised on behalf of the appellant and then supported the impugned judgment and order passed by the learned trial court. In the last, he also argued that no bias or animus has been alleged or suggested by the appellant against the complainant for involving him in this case falsely.

We have given our thoughtful consideration to the aforesaid points of arguments put-forth on behalf of the learned counsel for the parties and find no force in any of the pleas raised on behalf of the appellant for the reasons given hereinafter:- Crl Appeal No. 356-DB of 1997 10

Admittedly, in such like cases as that of the case in hand, direct evidence is not always available, especially where the victim is a minor female and defenceless, and at the same time, it is to be remembered that witnesses may tell a lie but the circumstances do not.

Here is a case before us where the circumstantial evidence brought on the file goes a long way to show that it was the appellant and none-else, who had first committed rape and then murdered Usha Devi,a victim in this case. First of all, taking the testimony of PW-5 Ram Kishan, he was the first person to see the appellant while coming out of the sugarcane fields after commission of crime at about 2.00.p.m. on the same date of occurrence i.e. September 15,1994. According to him, at that time, Raju appellant was visibly upset and when he tried to talk to him, he did not answer. His this version also goes unchallenged in his cross examination. Similarly, PW-10 Charan Singh Safri, who was previous employer of the appellant deposed that on September 21,1994, i.e. after about six days of the occurrence, appellant Raju had approached him for producing him(appellant) before the police. At that point of time, he had confessed his guilt. However, PW-10 Charan Crl Appeal No. 356-DB of 1997 11

Singh Safri who had contacts with the police, had asked him (appellant) to come on the next date, as on that day he was busy. But, thereafter, the appellant did not turn up. It was on October 15,1994 that Dewan Singh,Sarpanch of village Fattan Chak, had produced him before PW-11 Inspector Nirmal Singh. Accordingly, on the next day of his arrest, he was produced before Sh. B.K Gaur, Judicial Magistrate Ist Class, Dasuya, where his test mould of right naked foot Ex.P1 was taken vide endorsement Ex.PE/1 made on the application Ex.PE. Ultimatley, the said test mould of his naked right foot was sent to Forensic Science Laboratory, for comparison. According to report Ex.PU/1, crime mould of right naked foot taken from the scene of crime tallied with the test mould of right foot of Raju appellant. It has come in evidence of PW-7 Darshan Singh, Member Panchayat that there were no dry leaves of sugarcane lying on the ground at the place of occurrence The field was also not freshly irrigated. It is a matter of common knowledge that sugarcane fields are irrigated frequently and the land of such crop remains wet for a long time as Sun's rays and air do not touch the earth, especiallyin the inner side of the field of crop of sugarcane as heightof such Crl Appeal No. 356-DB of 1997 12

a crop is generally not less than 7/8'. In these given facts and circumstances of this case, it was quite possible and reasonable to conclude that there remained an impression of foot at the place of occurrence and as such, recovery memo Ex.PG prepared in that behalf by the Investigating Officer is fully believable. Thus, the report of the Forensic Science Laboratory Ex.PU/1 has scientifically connected the appellant with the commision of the crime in this case.

Now adverting to the medical evidence of the victim and the appellant, in this regard, PW-1 Dr. Rajesh Kumar Bagga, who had prepared the post mortem report Ex.PA of deceased Usha Devi, found the following injuries on her person:-

1. Multiple contusions and scratch marks were present on both cheeks,nostrils, chin and front of neck.

2. Multiple small abrasions on the right medial and lateral maleolus.

On examination of the genitalia blood stained fluid was found coming out of the vagina and multiple abrasions and scratch marks were present on the buttocks and in Crl Appeal No. 356-DB of 1997 13

perineal region around the external genitalia, sizes varying from 1 cm x to 4 cm x cm . Labia were swollen.

Lacerations present over the labia. Vaginal intritus was red & congested. Hymen was completely ruptured.

This Dr. has categorically opined that the victim was certainly subjected to rape. Further, in his opinion, cause of death was asphyxia due to smothering, which was sufficient to cause death in the ordinary course of nature.

Now adverting to the last contention of the learned counsel for the appellant regarding mentioning the name of appellant Raju as Partap Bhaiya in the FIR, in this regard, PW-6 Ram Chand, who is lodger of the FIR has clarified in his examination-in-chief that he had mis-described the name of Raju as Partap Bhaiya, as at that time, he was not aware of his correct name. His this clarification again goes unchallenged in his cross examination. Not only that PW-8 Parbhjinder Singh in whose field the appellant was working as a labourer at the time of occurrence has categorically stated that Raju appellant was his Crl Appeal No. 356-DB of 1997 14

agricultural labourer. He further stated that on September 16,1994, the dead body of Usha Devi, a victim in this case was found lying in his sugarcane fields. All these factors again go to confirm that there was a bonafide mistake on the part of PW-6 Ram Chand, while giving the name of appellant Raju in the FIR as Partap Bhaiya. Thus, on that account, no benefit can be derived by the appellant. The other relevant factor in this case is that after the commission of offence, the appellant remained absconding and in that behalf, there are statements of PW-12 Gurnam Dass ASI and PW-11 Inspector Nirmal Singh. They had searched for him but could not succeed. Ultimately on October 15,1994, he (appellant) was produced by Dewan Singh, Sarpanch of village Fattan Chak. However, as discussed above, in between i.e.on September 21,1994, the appellant had also contacted his previous employer PW-10 Charan Singh Safri to get him produced before the police. In that behalf, statement of PW-10 Charan Singh Safri was also recorded on September 23,1994, but as stated in the earlier part of the judgment, the appellant was asked to come on the next date, but he did not turn up. From the aforesaid conduct of the appellant, it can be safely inferred that after Crl Appeal No. 356-DB of 1997 15

committing the crime, he went on evading his arrest for about a month.

To sum up, immediately after the commission of crime, the appellant was seen upset by PW-5 Ram Kishan at about 2.00 p.m. on September 15,1994. Thereafter, on September 21,1994, he made an extra judicial confession and admitted his guilt before PW-10 Charan Singh Safri. The circumstantial evidence brought on the file also finds corroboration from the evidence consisted in the statement of PW-1 Dr.

Rajesh Kumar Bagga. Further, Forensic Science Laboratory's report Ex.PU/1, as discussed above, categorically connects the appellant with the commission of crime In that report, crime mould of right naked foot taken from the scene of crime tallied with the test mould of right foot of Raju appellant. All these factors go a long way to show that it was the appellant and none-else, who had committed the crime of this case.

In the result, this appeal fails and the same is hereby dismissed.

( PRITAM PAL )

JUDGE

NOV 08,2005 ( MEHTAB S.GILL)

RR JUDGE

Whether to be referred to Reporter or Not: Yes/No.

Crl Appeal No. 356-DB of 1997 16


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