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2003 DIGILAW 2504 (ALL)

RAGHUWAR DAYAL; CROSS APPEAL v. STATE OF U P

2003-10-22

UMESHWAR PANDEY, VISHNU SAHAI

body2003
VISHNU SAHAI, J. Raguhwar Dayal was charged by the Additional Sessions Judge (Court No. 3), Aligarh in Sessions Trial No. 190 of 2002 for offences punishable under Sections 376 and 302 of the Indian Penal Code. Vide judgment and order dated 23-5-2003 the learned Judge convicted and sentenced him in the manner stated hereinafter: (i) Under Section 302 IPC to death; and (ii) Under Section 376 IPC to imprisonment for life and a fine of Rs. 5,000. 2. Aggrieved by his conviction and sentence Raguhwar Dayal has preferred, in this Court, Criminal Appeal No. 2403 of 2003. Capital Sentence Reference No. 8 of 2003 arises out of the reference made by the learned Trial Judge under Section 366 (1) Cr. P. C. to this Court for confirmation of the death sentence of Raguhwar Dayal. 3. Since Criminal Appeal No. 2403 of 2003 and Capital Sentence Reference No. 8 of 2003 arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment. 4. Shortly stated the prosecution case runs as under: The informant Satish PW 1 is the son of deceased Kalawati. On the night of 7/8-11-2001, the informant and Om Prakash were sleeping in the shed, outside the room of Jai Prakash, the uncle of the former, situated in a jungle at the outskirts of mohalla Nagaichapada within the limits of Police Station, Atraulidistrict Aligarh, Kalawati was sleeping outside her room, which was situated at a distance of 8-10 paces from where the place, where the informant was sleeping. An electric bulb was burning there. At about 4. 00 a. m. the informant heard the cries of bachao-bachao (save-save ). Thereupon, he and Om Prakash got up from their sleep and proceeded to the place where Kalawati was sleeping. The informant found Kalawati and the appellant Raguhwar Dayal in a naked condition. Raguhwar Dayal was sitting and strangulating Kalawati with his hands. Seeing the informant and Om Prakash he tried to run away, but they apprehended him on the spot. Thereafter, the informant saw that his mother Kalawati was dead, on account of injury on neck. His impression was that the appellant had raped and thereafter killed her. Immediately thereafter a number of persons reached the place of the incident. Seeing the informant and Om Prakash he tried to run away, but they apprehended him on the spot. Thereafter, the informant saw that his mother Kalawati was dead, on account of injury on neck. His impression was that the appellant had raped and thereafter killed her. Immediately thereafter a number of persons reached the place of the incident. Then the informant scribed his FIR (Exihibit Ka-1) and alongwith Om Prakash, some others and the appellant proceeded to Police station Atrauli, where he lodged his FIR and the appellant was taken in custody. 5. The evidence of SI Dhan Ram PW 2 shows that on 8-11-2001 he was posted as Head Moharrir at Police Station Atrauli and registered the FIR and prepared the Chik FIR. It is pertinent to mention that the FIR was lodged on the said date at 6. 10 a. m. and on its basis a case under Sections 376 and 302 IPc was registered against the appellant. A perusal of the Chik FIR also shows that the distance between the place of the incident and the police station was two kilometres. 6. The evidence of SO Rajendra Singh Rathi PW 6 shows: On 8-11-2001 the FIR was lodged in his presence. He immediately took over the investigation and left for the place of the incident, where the prepared the site plan (Exhibit Ka-12 ). On his dictation, SI Uday Veer Baliyan PW 4 performed the inquest on the corpse of the deceased. He thereafter sent it for autopsy. On the said date, he also recorded the statements of the appellant, the informant, witness Om Prakash and others. 7. The evidence of Constable Ran Singh PW 5 shows: On 8-11-2001 he was posted at Police Station Atrauli and in his presence the underwear, which appellant Raguhwar Dayal was wearing was seized under a recovery memo (Exhibit Ka-2), by Head Moharrir Dhan Ram PW 2, on which the thumb impression of the appellant was also taken. His evidence shows that after recovery the underwear was sealed. It is pertinent to mention that the said underwear was sent to the serologist, who found on it semen stains. 8. The evidence of SO Rajendra Singh Rathi shows that on completion of the investigation the appellant was charge-sheeted. 9. The autopsy on the corpse of the decease Kalawati was conducted, at 4. It is pertinent to mention that the said underwear was sent to the serologist, who found on it semen stains. 8. The evidence of SO Rajendra Singh Rathi shows that on completion of the investigation the appellant was charge-sheeted. 9. The autopsy on the corpse of the decease Kalawati was conducted, at 4. 00 p. m. on 8-11-2001 (the date of incident) by Dr. Sayeed Mohammad PW 3, who found on it the ante-mortem injury enumerated below: Multiple abraded contusions in an area of 12 cm x 8 cm on front of neck and inferior surface of lower jaw. On dissection underneath tissue is congested and echymosed. Both cornea of hyoid bond fractured. The cause of death spelt out in the post-mortem report was asphyxia as a result of throttling. It is pertinent to mention that a perusal of the post-mortem report shows that the autopsy surgeon prepared two vaginal smears, sealed them, and handed them over to the Constable who had brought the corpse for sending them to the pathology laboratory for examination about the presence of spermatoza. It is pertinent to mention that in his deposition in the trial Court Dr. Sayeed Mohammad reiterated the said cause of death and stated that the deceased could have died on 8-11-2001 at 4. 00 a. m. on account of the ante-mortem injury suffered by her. He also stated therein that on 21-11-2001 he examined the slides of the deceased and noticed on them spermatozoa. His report is Exhibit Ka-5. 10. The case was committed to the Court of Sessions in the usual manner, where the appellant was charged for offences punishable under Sections 302 and 376 IPC. He pleaded not guilty to the charges and claimed to be tried. His defence was of denial. During trial, in all, the prosecution examined six witnesses. One out of them namely, the informant Satish furnished ocular account. The learned trial Judge accepted the account furnished by Satish, as also the report of the serologist, which showed the presence of semen stains on the underwear recovered from the appellant and convicted and sentenced him in the manner stated in paragraph 1. Hence, this appeal and reference. 11. We have heard Mr. The learned trial Judge accepted the account furnished by Satish, as also the report of the serologist, which showed the presence of semen stains on the underwear recovered from the appellant and convicted and sentenced him in the manner stated in paragraph 1. Hence, this appeal and reference. 11. We have heard Mr. G. P. Dixit for the appellant Raguhwar Dayal and the Additional Public Prosecutor for the State of U. P. in Criminal Appeal No. 2403 of 2003 and the Additional Public Prosecutor for the State of U. P. and Mr. G. P. Dixit for the applicant in Capital Sentence Reference No. 8 of 2003. We have also perused the depositions of the prosecution witnesses the material exhibits tendered and proved by the prosecution, the statement of the appellant recorded under Section 313 Cr. P. C and the impugned judgment and in our view, Criminal Appeal No. 2403 of 2003 deserves to be partly allowed and the reference made by the learned trial Judge for confirmation of death sentence of Raguhwar Dayal warrants to be rejected. 12. It would become manifest from the above that the learned Trial Judge has based the conviction of the appellant on the ocular account furnished by Satish PW 1 and the report of the serologist, which shows presence of semen stains on the underwear recovered from the person of the appellant. In our judgment, both these pieces of evidence inspire confidence. We now propose, furnishing our reasons for reaching the said conclusion. We would first like to deal with the ocular account furnished by Satish. 13. The evidence of Satish shows: He is the son of the deceased Kalawati. At the time of the incident, he, alongwith his mother Kalawati was living in a house mohalla Nagaichapada within the limits of Police Station Atrauli, District Aligarh. In the jungle situated at the outskirts of the said mohalla, there was a room belonging to his uncle Jai Prakash and 8-10 paces therefrom was that of his mother Kalawati. Some times he and his mother used to sleep in their house in mohalla Nagaichapada and some times in jungle. On the night of 7/8-11-2001, he, Om Prakash and Kalawati were sleeping in the jungle, he and Om Prakash outside the room of Jai Prakash and Kalawati outside her room. At about 4. Some times he and his mother used to sleep in their house in mohalla Nagaichapada and some times in jungle. On the night of 7/8-11-2001, he, Om Prakash and Kalawati were sleeping in the jungle, he and Om Prakash outside the room of Jai Prakash and Kalawati outside her room. At about 4. 00 a. m. he and Om Prakash on hearing the cries of bachao-bachao (save-save) got up from their sleep. He saw that Kalawati and the appellant were naked and the appellant was sitting and strangulating her with his hands. The appellant tried to run away, but he and Om Prakash rushed and caught hold of him. In the meantime, some other persons also collected. Thereafter, he, Om Prakash and some others took the appellant to Police Station Atrauli, where he lodged his FIR. At the police station the appellant was taken in custody. 14. We have gone through the evidence of Satish and make no bones in observing that we find him to be a wholly credible witness. In the first place, he has explained his presence on the place of the incident. He has stated that some times he used to sleep at his house in mohalla Nagaichapada and sometimes at the room of his uncle Jai Prakash in the jungle. His cross-examination shows that the Kalawati at about 6. 00-6. 30 p. m. after taking dinner used to go to her room in the jungle, sleep there, and in the morning used to come alongwith milk. His evidence also shows that the place where he was sleeping was at a distance of 8-10 paces from the place where his mother was sleeping. In our view, bearing in mind the said distance it was natural for him and Om Prakash to have heard the cries of Kalawati bachao-bachao (save-save) (which she raised on being strangulated by the appellant) and to have seen the incident. Secondly, the manner of incident as furnished by him is corroborated by medical evidence. He stated that on hearing the cries of Kalawati he woke up saw her and the appellant naked, and the appellant strangulating her with his hands. It is pertinent to mention that the autopsy surgeon Dr. Sayeed Mohammad PW 3 found on Kalawatis neck a multiple abraded contusion in an area of 12 cm x 8 cm, which was accompanied by fracture of hyoid bone. It is pertinent to mention that the autopsy surgeon Dr. Sayeed Mohammad PW 3 found on Kalawatis neck a multiple abraded contusion in an area of 12 cm x 8 cm, which was accompanied by fracture of hyoid bone. It is also pertinent to mention that the autopsy surgeon in his deposition in the trial Court stated that the said injury could be caused as a result of strangulation by hands. It is significant to mention although Satish was extensively cross-examined but nothing could be scored out therefrom which could impair his credibility on the substratum of the prosecution case or show that he nursed any rancour or ill-will against the appellant. 15. For the said reasons, in our view, the evidence of Satish inspires confidence and alone is sufficient to sustain the conviction of appellant. 16. Assurance to the ocular account furnished by Satish is forthcoming by the prompt FIR of the incident lodged by him and by his handing over the appellant, at the Police Station, at the time of the lodging of the FIR. It is pertinent to mention that the incident took place on 8-11-2001 at 4. 00 a. m. and the FIR was lodged the same morning at 6. 10 a. m. by him at Police Station Atrauli, which was situated at a distance of two kilometres from the place of the incident. It is significant to mention that in this prompt FIR of the incident the essential features of the prosecution case, including the time of the incident the manner of assault, the spot arrest of the appellant and the factum of his brought to the police-station have all been mentioned. In our judgment, this prompt FIR of the incident lends a seal of assurance to the claim of Satish of having seen the incident and about the appellant being arrested on the spot. 17. In the instant case, the final nail in the coffin of the appellant is his spot arrest. As we have mentioned earlier, at the time of the lodging of the FIR the informant handed him over to the police it is significant to point out that the appellant has not been able to dislodge his spot arrest. 17. In the instant case, the final nail in the coffin of the appellant is his spot arrest. As we have mentioned earlier, at the time of the lodging of the FIR the informant handed him over to the police it is significant to point out that the appellant has not been able to dislodge his spot arrest. It is pertinent to mention that the evidence of Constable Ran Singh PW 5 shows after lodging of the FIR the underwear which the appellant was putting on was seized under a recovery memo. It is pertinent to mention that the underwear was sent to the serologist who found on it semen stains. 18. In our judgment, the evidence of Satish establishes that the appellant committed the offence under Section 302 IPC and his evidence coupled with circumstantial evidence established that he also committed the offence under Section 376 IPC. We have seen that in respect of the offence punishable under Section 302 IPC. Satish has given direct evidence, which is corroborated by medical evidence. Coming to the offence punishable under Section 376 IPC, we find that the evidence of Satish shows that when he woke up on hearing the cries of Kalawati bachao-bachao he found that she and the appellant were naked. This evidence, coupled with the serologist finding semen stains on the underwear of the appellant and autopsy surgeon finding sperms in the slides containing her vaginal smear, is sufficient to warrant the inference that prior to murdering her, the appellant had also raped her. 19. For the said reason, in our view, the prosecution has proved the guilt of the appellant on both the counts, namely, under Sections 302 IPC and 376 IPC. 20. We would be failing in our fairness if we do not refer to the main submissions canvassed by Mr. G. P. Dixit, learned Counsel for the appellant. 20-A. Firstly, Mr. Dixit contended that it would be hazardous to sustain the conviction of the appellant on the solitary testimony of Satish PW 1, who being the son of the deceased Kalawati is a highly interested witness. We have reflected over his submission and do not find any merit in it. G. P. Dixit, learned Counsel for the appellant. 20-A. Firstly, Mr. Dixit contended that it would be hazardous to sustain the conviction of the appellant on the solitary testimony of Satish PW 1, who being the son of the deceased Kalawati is a highly interested witness. We have reflected over his submission and do not find any merit in it. In view of the provisions contained in Section 134 of Evidence Act which provide that "no particular number of witnesses shall be required for proof of any fact" there is no impediment in law in recording/sustaining a conviction on the testimony of a solitary witness. So far as Satish being an interested witness is concerned the law enjoins that the testimony of an interested witness should only be examined with caution and not mechanically rejected. We have exercised the said caution and have found it trustworthy. It is significant to mention that he had no rancour or ill-will against the appellant and in our judgment in the absence of the same would not have falsely implicated him. For the said reasons this submission fails. 20-B. Secondly, Mr. Dixit urged that since Satish has admitted in cross-examination that he is a married man, having wife and children, on the night of the incident, he would have slept with them at his house in mohalla Nagiachpada, which was situated at a distance of half kilometre from the room of his uncle Jai Prakash in jungle and not outside the said room. The evidence of Satish shows that he used to sometimes sleep at his house in Nagiachpada and sometimes in jungle. Since the mother of Satish used to sleep in her room in jungle and Jai Prakash was the uncle of the appellant and the evidence of Satish is, he, his father, Jai Prakash and other members of the family used to jointly live in a house in mohalla Nagaichapada, it is obvious that relations between Satish and Jai Prakash were good and therefore, we see no reason to disbelieve Satish that on the night of the incident he and Om Prakash were sleeping outside Jai Prakashs room in jungle. Hence, this submission fails. 20-C. Thirdly, Mr. Dixit contend that Om Prakash, who is also an eye-witness of the incident and the other witnesses, who came subsequently should have been examined. Hence, this submission fails. 20-C. Thirdly, Mr. Dixit contend that Om Prakash, who is also an eye-witness of the incident and the other witnesses, who came subsequently should have been examined. He urged that they could have deposed about the factum of spot arrest of the appellant. In our judgment, it is not the quantity but the quality of the evidence adduced by the prosecution, which alone matters. Since the evidence of Satish is of a flawless quality, the failure of the prosecution to examine Om Prakash or any other witness is inconsequential. 20-D. Fourthly, Mr. Dixit urged that the time of the incident is doubtful. He contended that Satish in his cross-examination stated that the deceased used to take her food at 6. 00-6. 30 p. m. and then go to her room in jungle, but Dr. Sayeed Mohammad (the autopsy surgeon) in the stomach of the deceased found two ounces of pasty food. Mr. Dixit pointed out that Dr. Sayeed Mohammad in his cross-examination stated that food becomes pasty between 4-6 hours. Mr. Dixit urged that this means that the deceased was done to death sometimes between 10. 30 p. m. and 12. 30 a. m. on the night of 7/8-11-2001 and not at 4. 00 a. m. as is the prosecution case. We have reflected over the said submission and do not find any merit in it. The submission proceeds on the misconceived premise that the preceding evening deceased had taken food at 6. 00-6. 30 p. m. However, there is no evidence to warrant this inference. The informant was asked as to what time the deceased used to take food but was not asked at what time the previous night she had taken food. In our judgment, it may be that the deceased took food in the late hours of the night and therefore, the autopsy surgeon found two ounces of pasty food present in her stomach. Hence, this submission also fails. 20-E. Fifthly, Mr. Dixit urged that the informants claim that an electric bulb was burning on the place of the incident is open to grave doubts because in his statement in the trial Court he admitted that he was stating about light for the first time. In our judgment, merely for this reason the existence of electric light cannot be disbelieved. Dixit urged that the informants claim that an electric bulb was burning on the place of the incident is open to grave doubts because in his statement in the trial Court he admitted that he was stating about light for the first time. In our judgment, merely for this reason the existence of electric light cannot be disbelieved. That apart, the appellant was known to the informant from before the incident and it is common knowledge that known persons can be recognised by the timbre of their voice, gait etc. and he was also arrested on the spot. 20-F. Sixthly, Mr. Dixit contended that the story of the spot arrest of the appellant appears to be a tissue of lies and the case of the appellant that the police arrested him from his house appears to be more probable. In this connection, Mr. Dixit invited our attention to the FIR wherein the informant Satish has stated that he had brought the appellant to the Police Station. Mr. Dixit pointed out that this cannot be believed because the FIR was lodged on 8-11-2001 at 6. 10 a. m. and SI Uday Veer Baliyan PW 4, who performed the inquest on the corpse of the deceased stated that when he reached the place of the incident at 6. 30 a. m. he saw the appellant there. We have examined the aforesaid submission of Mr. Dixit and in our view the evidence of SI Baliyan does not belie the spot arrest of the appellant. It is pertinent to mention that the informant in his cross- examination has stated that immediately after lodging of the FIR he alongwith Investigating Officer returned to the place of the incident. It may be that the Investigating Officer also brought the appellant there for the purposes of interrogation. It may also be that the aforesaid statement of SI Baliyan was on account of lapse of memory. In our judgment, on the face of the entry in the General Diary of Police Station Atrauli pertaining to the registration of the case, wherein it has been mentioned that the informant has brought the appellant to the Police Station, the factum of spot arrest of the appellant cannot be doubted. Further, there was no reason for the police to have arrested the appellant from his house. After all there was no enmity between it and the appellant. Further, there was no reason for the police to have arrested the appellant from his house. After all there was no enmity between it and the appellant. Hence, this submission also fails. 20. G. Finally, Mr. Dixit urged that the instant case does not warrant that the appellant be sentenced to death for the offence punishable under Section 302 IPC and a sentence of imprisonment for life would meet the ends of justice. We find merit in the said submission. To us it appears that the intention of the appellant was only to rape the deceased and the manner in which he committed the murder i. e. by strangulating the deceased with hands shows that when after being raped by the appellant, the deceased raised cries bachao bachao (save-save) on the spur of the moment he decided to murder her and consequently strangulated her to death by his hands. In our view, had it been a pre-planned murder, the appellant would have come armed with a weapon and murdered the deceased. For the said reasons in our view the instant case would not fall in the category of "rarest of rare" and a sentence of imprisonment for life for the offence under Section 302 IPC would meet the ends of justice. Coming to the sentence of the appellant for the offence under Section 376 IPC we find that the learned trial Judge has sentenced him to imprisonment for life and a fine of Rs. 5,000. Considering the fact that in the late hours of the night, when the deceased was sleeping, he stealthily came and raped her, he does not deserve any sympathy and his sentence does not warrant any reduction. 21. In the result: A. Criminal Appeal No. 2403 of 2003: The appeal is partly allowed. Although we maintain the conviction of appellant Raghubar Dayal for offences punishable under Sections 302 IPC and 376 IPC and the sentence of imprisonment for life and fine of Rs. 5,000 on the later count but we reduce his sentence from death to imprisonment for life on the former count. We direct that the sentences of the appellant on both the counts shall run concurrently. The appellant is in Jail and shall serve out his sentence. B. Capital Sentence Reference No. 8 of 2003: The reference is rejected. Appeal allowed and reference rejected. .