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AKHLAQ & OTHERS versus STATE OF U.P.

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Akhlaq & Others v. State Of U.P. - CRIMINAL APPEAL No. 1783 of 1981 [2006] RD-AH 11476 (14 July 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved.

Criminal Appeal No. 1783 of 1981

Akhlaq, Jamil & Imtiyaz   vs.   State of U.P.

***************        

Hon. M.C. Jain, J.

Hon. V.D. Chaturvedi, J.

(Delivered by Hon. V.D. Chaturvedi,J.)

This appeal is preferred against the judgment and order dated 10.08.1981 passed by Sri Ghanshyam Das, the then Ist Additional Sessions Judge, Bulandshshr, in S.T. No. 143 of 1980, whereby he convicted the appellant Jamil under Section 302/34 and Section 376 I.P.C. and appellants Akhlaq and Imtiyaz under Section 302/34 I.P.C. and sentenced them accordingly. The sentences of rigorous imprisonment for life and that of seven years were awarded for the offences of murder and the rape respectively.  There was a fourth accused Babu who was convicted and sentenced under sections 302 and 376 IPC. He preferred Crl. Appeal No. 1784 of 1981 which abated under order dated  15.9.2004 because of his death.

The facts which are relevant for the decision of the appeal may be summarized as under:-

P.W. 1 Samay Singh, the complainant of the case, submitted a written report Ex. Ka 1 at P.S. Kotwali, District Bulandshahr on 31.07. 1979 at 6.10 p.m., stating therein that on the date of  report he returned his house at 3 .30 p.m. after doing his duty. He asked from his younger daughter Km. Maya about his elder daughter Smt. Asha so that she might assist him in cutting fodder. Km . Maya told him that Asha had gone for easing herself about one hour earlier. After a little time, the complainant's wife also reached the house and on being asked she also told that Asha had gone for easing herself much time earlier. She expressed surprise as to why Asha had not come back. This delay caused suspicion. Therefore, the complainant and his wife went towards the jungle to trace out Smt. Asha. At about 5.00 p.m. the complainant saw one of the Chappals of smt. Asha lying near the field of Kanchhi near maize crop. The complainant along with Amarnath and Daulat, who were also accompanying him, entered into the field of Kanchhi, where they found that Smt. Asha was lying dead. A "Dhoti" was found tightly tied around her neck and the plants around her were lying uprooted. Her another chappal was lying near her. Her clothes were stained with blood. Hasali  of one tola gold and the gold ear-rings worn by her were found missing from her person.

This report Ex. Ka. 1 was scribed by Amar Nath S/o Pt. Faqir Chand, r/o village Tatarpur, District Bulandshahr. On submission of the report Ex. Ka. -1 at P.S. Kotwali, District Bulandshahr, a case under Section 302 and 394 IPC was registered.

The investigation of the case was conducted by sub Inspector Rameswar Prasad Gautam, (P.W.12). The autopsy on the dead body of Smt. Asha was conducted on 1.08.1979 at 10.00 a.m. by Dr. Surendra Pal Singh (P.W. 14). She was aged about 20 years. He found 18 ante-mortem injuries on her corpse. These injuries are reproduced as under:-

        1.Multiple abrasions 1cm - 1.5cm x 0.75cm -1cm in the area     6cm x 3cm on the central part of forehead

2.Contusion 2.5 cm.x 2cm on the front and sides of nose at the   root.

3.Abrasion 1 cm x 0.5 cm on the front of tip nose upper   surface.

4.Contusion 1-1/2 cm x 1 cm on the inner aspect of upper lip     in middle.

5.Lacerated wound ¾ cm x ½ cm x muscle deep on contused   area of injury no.4.

6.Contusion 1-1/2 cm x 1 cm on the inner side of lower lip in    the middle.

7.Lacerated wound 1cm x 1/2cm x muscle deep on lower lip in   the middle of injury no.6.

8.Contusion 1 cm x ½ cm on the under surface of tongue     in   the midline.

  9.Linear abrasion 4 cm long on Rt.cheek 8 cm below Rt.               lower eye lid.

   10.Abraded contusion 5cm x  1-1/2 cm on Rt.Cheek at             Mandibular area adjacent to mid line.

   11.Abrasion 2 cm x 1 cm on the left cheek on lower                         border of Mandibular region.

  12.Contusion 19 cm x 2cm on the front  and sides of neck              4cm posterior to chin.

  13.Contusion 2 cm wide all around the neck 1cm below                      injury no. 12.

    14.Contusion 9 cm x 6 cm on the left chest front side 2cm                 below left clavicle.

   15.Multiple abrasion 1 cm - 1-1/2 cm x0.5 cm -0.75cm in                      an area of 3cm x 2cm on injury no. 14.

   16.Abrasion ¾ cm x ½ cm on the back of left elbow joint.

   17. Abrasion 1-1/2 cm x ½ cm on the front of Rt.forearm                     11cm above Rt. Wrist joint.

  18.Lacerated wound 1-1/2 cm x ¾ cm x mucosa deep on                      the post wall of old ruptured hymen from 6 O'clock to 9           o'Clock position

The Doctor also found clotted blood on both the thighs.

Death had occurred due to asphyxia as a result of strangulation.

The slide of vaginal smear was sent to pathologist for examination and dead sperms were found in the same. P.W.7 Dr. P.C.  Agarwal had done the pathological test.

The  Baniyan, bra, Petticoat, shirt and ribbon of the deceased were also sent to the the Chemical Examiner who found blood stains on each of these clothes.

After recording the statements of the witnesses and after usual investigation, the I. O. submitted chargesheet Ex. Ka. -13 against the present accused appellants Akhlaq, Jameel and Imtiayz as also the charge sheet Ex.Ka -14 against the deceased accused Babu.

At the  trial 19 witnesses were examined by the prosecution.

The defence was of denial.

P.W.1 Samay Singh, the complainant and the father of the deceased, P.W. 2 Smt. Braham Devi (mother of the deceased ), P.W. 3 Smt. Kallo, P.W. 4 Bal Krishan P.W5 Rajpal, P.W. 6 Mahesh Chandra, P.W. 8 Sher Singh, P.W.9 Ram Krishna, P.W.10 Jai Prakash and P.W. 11 Jai Ram Singh were the witnesses of fact whereas the remaining witnesses P.W.7 Dr. P.C. Agarwal, P.W.12 S.I. Rameshwar Prasad Gautam (I.O.), P.W. 13 Head constable Om Prakash Tyagi, P.WA.14 Dr. Surendra Pal Singh, P.W.15 Constable Rajvir Singh, P.W. 16 Constable Ami Chand, P.W. 17 Head Constable Singh Pal Singh, P.W. 18 Sri Shyam Lal (Executive Magistrate) and P.W. 19 constable Tej Ram were formal witnesses.

Since it is a case of circumstantial evidence, hence it is needful to mention in brief the evidence adduced by the prosecution witnesses.

P.W.1 Samay Singh supported the facts mentioned in the FIR Ex. Ka-1 and also deposed that he identified the blood stained clothes of the deceased and the earrings of the deceased before the Identification Magistrate.

P.W.2 Smt. Braham Devi deposed that on the date of occurrence her daughter Smt. Asha went for easing herself and later her dead body was recovered from the field of Kanchhi and that she identified the clothes and ear-rings of the deceased before the Identification Magistrate.

P.W.3 Smt. Kallo w/o Daulat, younger brother of the complainant Samay Singh, deposed that on the date of occurrence at about 1.30 p.m.  she went for easing herself in the field of Omi, adjacent to the field of Kanchhi; that she saw there accused Babu, Jamil, Akhlaq and Imtiyaz coming out of the maize field of Kanchhi and going towards the east; that in the same evening she came to know that Smt. Asha was murdered and her dead body was lying in the field of Kanchhi.

P.W.4 Bal Krishan deposed that on the date of occurrence at about half past 1.00 p.m., he saw Smt. Asha going towards Pokhar; that after a little while, he saw the accused Akhlaq, who was following Smt. Asha; that after covering short distance he saw accused Imtiyaz, Babu and Jamil following accused Akhlaq; that in the evening he came to know that Asha was lying dead in the maize field of Khanchhi; that many persons assembled there to see her dead body; that he made it public there that enquiry should be made from Akhlaq, Imtiaz, Jamil and Babu.

P.W.5 Rajpal Singh deposed that on the date of occurrence at about 2.00 p.m. or quarter to 2.00 p.m. he heard accused Jamil and Babu talking together; that Jamil said to Babu, "Sandles are left"'; that accused Babu replied that "Hansli and ear-rings were enough. You should not be greedy any more";  that after a little while the accused Imtiyaz and Akhlaq in perplexed state were seen following the accused Jamil and Babu; that all the accused went towards Deharia; that he saw the said incident when he was easing in  the sugarcane field of Omi situated near the place of occurrence.

P.W.6 Mahesh Chandra is a witness before whom the extra-judicial confession was made by the accused Babu and Akhlaq. The witness deposed that three days after the occurrence he heard the whispering of persons at about half past 8.00 p.m; that he asked, 'who are you', whereupon one of them told that he was Babu Khan. He (this witness), therefore, reached where Babu along with Akhlaq was present. The witness asked them why they were being named in connection with the murder of Asha; that upon it Babu confessed that he had committed the blunder; that on being asked the accused Babu narrated that about 3-4 months back he had teased Asha whereupon  Smt. Asha abused him; that for the last two years the accused Akhilaq was having illicit relations with Asha; that on the date of occurrence accused Jamil reached to him (Babu) to borrow some money; that accused Imtiaz also reached there; that they saw accused Akhlaq following Asha; that he (Babu), Jamil and Imtiaz also followed accused Akhlaq; that Smt. Asha and accused Akhlaq entered into the maize field of Kanchhi; that they, therefore, also entered in the said field where they saw that Asha was enjoying the illicit relations with Akhlaq; that he (Babu) and Jamil also committed sexual intercourse with Asha against her consent; that Smt. Asha threatened to make it public. Therefore, all of them  committed her murder. Jamil, Imtiyaz and Akhlaq caught hold of her and he  (Babu) tightly tied the neck of Asha by her Dhoti; that consequently Asha died; that Jamil took her ear-rings and Hansli; that after making such confession, Babu asked the witness to help them by advising the complainant Samay Singh that Asha had already died and there was no advantage of making publicity of the said matter.

P.W.8 Sher Singh deposed that after the occurrence of murder of Smt. Asha, he asked accused Jamil regarding the truthfulness of what was being discussed in the village; that accused Jamil told that it was done by Akhlaq, Imtiaz, Babu and him; that Jamil told in detail that on the date of occurrence he reached accused Babu to borrow some money; that they saw that Akhlaq was going behind Asha; that Asha and Akhlaq both entered into the maize field of Kanchhi; that after a short time the accused Babu, Imtiyaz and he himself also reached there and saw Akhlaq was enjoying sex with Asha whereupon he and Babu expressed their desire to have sex with her but she refused and ran outside the field; that Babu pulled her inside; that he and Babu also committed sexual intercourse with her forcibly; that she threatened to disclose their misdeed  in the village; that he, Akhlaq and Imtiaz caught hold of her arms and legs and Babu strangulated her by her Dhoti and consequently she died ; that he took her Hansli and ear- rings. After making such narration and confession, Jamil asked this witness to protect him somehow.

P.W.9 Ram Khishan deposed that on 05.08.1979 accused Jamil and his mother Hamida reached the witness's shop and pledged a pair of ear-rings for Rs. 100/-; that on 21.08.1979 Darogaji with a constable along with the accused Jamil and witnesses Jai Prakash and Sri Krishan reached his shop; that on demand by Jamil, he gave the ear-rings Ex. 1 to the police; that Daroga sealed the ear-rings in a cover in the presence of the witnesses and obtained the signatures of the witnesses on the paper Ex. Ka. 3.

P.W. 10 Jai Prakash is a witness of the above recovery made at the instance of the accused appellant Jamil. He has supported the recovery.

P.W. 11 Jai Ram Singh deposed that on the date of occurrence he saw Smt. Asha going towards the field of Kanchhi; that accused Akhlaq was following her at a distance of 20-25 paces; that after a little while he saw the accused Imtiaz, Jamil and Babu also going in the same direction.

Remaining witnesses are of formal nature.

The learned trial judge, after recording the prosecution evidence and  the statements of the accused, convicted and sentenced the appellants as above.

We have heard Sri P.N. Mishra, learned counsel for the appellants and Sri Amar Jeet Singh, learned A.G.A. for the respondent. We have perused the record carefully.

The contention of the learned counsel for the appellants is that it is a case of circumstantial evidence; that circumstances brought on record do not form the complete chain of events so as to rule out the every hypothesis other than that no person, except the accused persons, committed the offence. It is also contended on behalf of the appellants that the omission of the name of P.W.2 Smt. Kallo w/o Daulat, (the younger brother of the complainant), in the FIR suggests that her testimony is not  trustworthy; that discovery of dead sperms from the vaginal smear of the deceased  shows only this much that sexual intercourse with the deceased had been done by some person before her death but  it fails to show that intercourse was done by the appellants and against her consent, hence conviction of the appellants for offence under section 376 IPC is unwanted and uncalled for. It is also contended that the recovery of the ear-rings at the pointing out of the accused -appellant Jamil, neither proves that he was in possession of the same nor his involvement in commission of rape on and murder of the deceased lady.

We do not agree with the contention of the learned counsel for the appellants that the evidence adduced by the prosecution does not form the complete chain of events. The evidence does form complete chain of events against the accused appellants clinchingly establishing their guilt.

We should point out that the presence of the lacerated wound on the post wall of old ruptured Hymen (injury no.18), the presence of sperms in vaginal smear and the presence of clotted blood on both thighs of the deceased  reveal the entire story that she was raped against her consent and thereafter  murdered by strangulation.  The presence of 18 ante-mortem injuries on her body further suggests that she struggled before her death. The number of injuries sustained by the deceased commensurate with the number of appellants involved in the offence.

P.W.6 Mahesh Chandra was the witness of extra judicial confession made before him by the deceased (accused appellant)Babu in the presence of the appellant Akhlaq. P.W.8 Sher Singh was also a witness of the extra judicial confession made before him by the accused Jamil. P.W. 4 Bal Krishan saw that Asha was going towards pokhar;  that accused Akhlaq followed the deceased Asha and thereafter the accused Imtiyaz, Babu and Jamil followed Akhlaq. This witness also stated that near the dead body, where a number of persons had assembled, he (this witness) said that enquiry should be made from Akhlaq, Imtiaz, Jamil and Babu. In the cross- examination, the witness told that the accused Akhlaq was 15 yards behind the deceased Asha and the accused Jamil, Imtiyaz and Babu were about 20-25 paces behind Akhlaq. P.W.11 Jairam Singh also saw the deceased Asha going towards the field of Kanchhi and Akhlaq  was following her. Further, he saw Akhlaq being followed by the appellants Imtiyaz, Jamil and Babu. Thus, P.W. 11 Jairam supported the version as stated by P.W.4 Bal Krishan. P.W.5 Rajpal Singh heard the conversation of  Jamil  and Babu to the effect that they had already taken the Hansli and ear-rings and must not be more greedy for taking Chappal /sandle; that Imtiyaz and Akhlaq also joined Jamil and Babu and all of the four appellants went to Daheria.

Moreover, it is also in the evidence that  Jamil pledged these  ear-rings at the shop of P.W.9 Ram Krishan and these ear- rings were recovered at the instance of the appellant Jamil in the presence of P.W.10 Jai Prakash. These ear-rings were sealed at the time of recovery and remained intact till they  were put up for identification by the Identification Magistrate P.W.18 Shyam Lal. P.W.1 Samay Singh and P.W. 2 Smt. Brahma Devi correctly identified the ear-rings. The evidence regarding the circumstances in which they   were taken off by the appellant Jamil from the person of the deceased and their recovery (at the instance of Jamil) and identification as being of the deceased leaves no room for doubt in the truthfulness of the prosecution story.   Even if the evidence of P.W.3 Smt. Kallo is not taken into account, the chain of events is complete and strong  enough to rule out every hypothesis other than the culpability of only the appellants.

The recovery of dead body of a young lady aged about 20 years, from the maize field, the presence of dead sperms in vaginal smear, laceration on old ruptured hymen (injury no. 18) and her murder by strangulation go to prove that she was gang raped against her consent and thereafter was murdered to conceal the guilt. Had the sexual intercourse been with the consent of the victim there would have been no occasion to cause injuries or to commit her murder. It is an extra judicial confession that only Akhlaq had illicit relations with the deceased; that accused Jamil and Babu  committed rape upon her against her consent. In the circumstances, we do not agree with the contention of the learned counsel for the appellants that the rape committed by the accused Jamil  and Babu is not proved. The appellant Jamil did commit rape on her and was involved in her murder with other appellants.

We should observe that in a case of circumstantial evidence, the offence is proved by different pieces of evidence. All the circumstances have to be considered together and not independently or separately.

The appellants counsel pointed out that Shyam Lal, uncle of P.W.6 Mahesh Chandra contested the election of Pradhan against Mushtiaq, the father of appellant Akhlaq; that Shyam Lal got defeated, hence P.W.6 Mahesh Chandra gave false evidence regarding extra judicial confession of Akhlaq and Babu. The enmity pointed out, is not a direct enmity between the witness and the accused Akhlaq. It is too remote. Moreover, no other infirmity in the statement of P.W.6 could be pointed out. We see no good reason to reject the testimony of P.W.6, Mahesh Chandra merely because his uncle got defeated in an election by the father of accused Akhlaq for the office of Pradhan.

No other point has been urged by the learned counsel for the appellants.

After considering the entire evidence produced by the prosecution, we find no infirmity in the finding of conviction and sentence recorded by the learned trial Judge against the appellants Akhlaq, Jamil and Imtiyaz. The appeal has no merit.

We dismiss the appeal and affirm the impugned judgment of conviction and sentences passed by the trial Judge.

The C.J.M. Buland Shahar shall cause the appellants Akhlaq, Jamil and Imtiaz arrested and lodged in jail to serve out the sentences passed against them by the trial Judge. He shall report compliance within two months from the date of the receipt of the copy of this judgment. Certify the judgment to the lower court immediately.

Dated:14.7.2006

Rps. Hsc/

 


Copyright

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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