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2005 DIGILAW 2248 (ALL)

Raj Kumar v. State of U. P.

2005-11-18

G.P.SRIVASTAVA, IMTIYAZ MURTAZA

body2005
IMTIYAZ MURTAZA, J. ( 1 ) THIS criminal appeal has been filed against the judgement and order dated 28. 3. 2004 and sentence dated 5. 8. 2004 passed by Addl. Sessions Judge, J. P. Nagar in S. T. No. 388 of 2000 whereby the appellant Raj Kumar has been convicted and sentenced to death under Section 302 I. P. C. and imprisonment for life under Section 376 i. P. C. ( 2 ) THE brief facts, mentioned in the report lodged by Sheel Chandra are that on 9. 10. 2000 at about 9 p. m. his daughter Km. Rinki aged about 8 years was returning to her house from his shop. While she was going back to her house she was enticed away by Raj Kumar. When his daughter did not return they started searching her and announcement was also made from the loud speaker of Ramlila. In the morning the dead body of his daughter was found in the field of Girish Tyagi. It is alleged that raj Kumar strangulated her after committing rape. After registration of the case Han Maya Sharma had commenced investigation. He reached at the place of occurrence and on his direction S. I. Late raja Vats prepared the inquest report. He recorded the statement of Sheel chandra, Sanjai, Shiv Om, Raj Kumar, stya Prakash and Suresh and also prepared the site plan, which is Ext. Ka-13. He also prepared the recovery memo of blood stained and plain earth, which is ext Ka-14. S. I. Raja Vats had also prepared letter to the" C. M. O. Ext. Ka-15. He had arrested the accused. The chik report was prepared by Sunil Kumar, Ext. Ka-16 and G. D. entry, Ext. Ka- 17. ( 3 ) THE post-mortem of the deceased was conducted by Dr. Sunil kumar. He had mentioned the age of the deceased about 8 years and probable time of death was also 3/4 day. He noted the following ante mortem injuries on the body of the deceased: 1. Abraded contusion (tooth bite)in oval fasion 4 cm. X 2. 5 cm. over right cheek. 2. Abraded contusion (tooth bite)in oval fashion 4 cm. x 2 cm. over left cheek. 3. Abraded contusion 9 cm. x 3 cm. over front of neck. He noted the following ante mortem injuries on the body of the deceased: 1. Abraded contusion (tooth bite)in oval fasion 4 cm. X 2. 5 cm. over right cheek. 2. Abraded contusion (tooth bite)in oval fashion 4 cm. x 2 cm. over left cheek. 3. Abraded contusion 9 cm. x 3 cm. over front of neck. ( 4 ) THE doctor also examined the vagina of the deceased and found no scratch marks over thigh, labia minor lacerated and hymen lacerated with bleeding. In the internal examination he found fracture of cornea of hyoid bone with congested trachea and bleeding in underlying tissues and in the opinion of the doctor cause of death was asphyxia as a result of strangulation. ( 5 ) AFTER the submission of charge sheet, the case was committed to the court of Session. The prosecution had examined 7 witnesses in support of its case. P. W. I Sheel Chand, P. W. 2 khachedu, P. W. 3 Shiv Om, P. W. 4 Dr. N. B. Sharma, P. W. 5 Sunil Kumar, P. W. 6 s. I. Shiv Raj Singh and P. W. 7 Hari Maya sharma. The case of the defence was of denial. ( 6 ) P. W. 1 Sheel Chandra, informant deposed that the occurrence had taken place about 1 year and four months back. His daughter Km. Rinki brought tea at his Pan shop, situated at Dhabarsi Bus stand. He had also given her money but she did not reach home. He had started search for his daughter. Anant had seen her alongwith Raj Kumar in the Mela. Announcement was also made from the loud speaker. In the field of Geerish Tyagi her dead body was recovered. His wife had also seen blood in the private part of the deceased. He further deposed that Raj kumar had committed rape. There were injuries on her cheek and she was strangulated. The report was scribed by shivam Patrakar and he had made his thumb impression over it, the report is ext. Ka-1. He also stated that the time of occurrence there was a Ramleela Mela. She had left his Pan shop at 9 p. m. Anant kumar had told him that he had seen his daughter alongwith Raj Kumar. His daughter was studying in class IV. His shop was opened up to 10 p. m. His daughter use to come at his shop occasionally. She had left his Pan shop at 9 p. m. Anant kumar had told him that he had seen his daughter alongwith Raj Kumar. His daughter was studying in class IV. His shop was opened up to 10 p. m. His daughter use to come at his shop occasionally. Raj Kumar also used to come and sit at his shop. He further deposed that after about 6 days of lodging of the report he had given another application to Daroga alongwith photograph of the deceased, which is paper no. 5. ( 7 ) P. W. 2 Khachedu deposed that he knew the appellant Raj Kumar and sheel Chandra. The occurrence had taken place about one year and six months back. The daughter of Sheel chandra had come to see Mela. The Mela was in the village Dhabarsi. He had also gone to see the Mela. He stated that he saw Raj Kumar offering Rainki to eat. He alongwith Anand, Suresh and Sanjai had also seen them. After some time both were missing. They had searched for rinki and Raj Kumar but could not find them. Announcement was also made from the loud speaker. At about 9 p. m. Raj Kumar came out from the field of gireesh Tyagi and he was in a disturbed condition. They had inquired Rinki but he was very much disturbed and he had denied to have seen Rinki and told that he had gone to meet the call of the nature. In the morning, the dead body of rinki was recovered from the field of gireesh Tyagi and they had seen Raj kumar coming out of this field. ( 8 ) P. W. 3 Shiv Om stated that he saw Raj Kumar taking away Rinki towards School. He did not inquire only because accused and the informant were friends. After the announcement from the loud speaker he came to know that Raj kumar had deliberately taken away the girl. Her dead body was recovered in the morning. Accused had taken away the girl in his presence and committed murder after committing rape. ( 9 ) P. W. 4 Dr. N. B. Sharma conducted the pathological test of vagina smear. The report is Ext. Ka-2. He did not find any sperm dead or alive. ( 10 ) P. W. 5 Dr. Sunil Kumar conducted the post-mortem examination of the deceased. ( 9 ) P. W. 4 Dr. N. B. Sharma conducted the pathological test of vagina smear. The report is Ext. Ka-2. He did not find any sperm dead or alive. ( 10 ) P. W. 5 Dr. Sunil Kumar conducted the post-mortem examination of the deceased. ( 11 ) P. W. 5 Shiv Raj Singh deposed that he was posted as Station House officer. Initially the investigation was conducted by Hari Maya Sharma and he started the investigation 13. 10. 2000. After the conclusion of the investigation he had submitted the charge sheet against the accused which is Ext. Ka-3 The inquest report was prepared by S. I. Raja Vats and he had also prepared the relevant paper for the post-mortem examination, which are Ext. Ka-4 to 12. P. W. 7 Hari Maya Sharma had investigated case. P. W. 7 Hari Maya sharma stated that on 10. 10. 2000 he was posted as Second Officer in P. S. Adampur. This case was registered in his presence and he had commenced the investigation. He had instructed Late S. I. Raja Vats to prepare the inquest memo. He recorded the statements of Sheel chand, Sanjay, Shiv Om, Raj Kumar, satya Prakash and Suresh. He had also prepared the site plan, recovery memo of blood stained and plain earth which are ex. Ka 13 and 14. He further deposed that the letter to C. M. O. was prepared by S. I. Raja Vats which is Ext. Ka. 15. He had arrested the accused and thereafter investigation was transferred to S. O. Shiv ram. The chik F. I. R. was prepared by Con. Sunil Kumar which is Ext. Ka. 16 and he had also prepared the G. D. entry and copy of the G. D is Ext. Ka. 17. ( 12 ) THE Sessions Judge after considering the evidence on record convicted the appellant as aforesaid. Hence this appeal. ( 13 ) WE have heard the learned counsel for the appellant and A. G. A. for the State and also perused the entire record. ( 14 ) IT is a case of circumstantial evidence. Ka. 17. ( 12 ) THE Sessions Judge after considering the evidence on record convicted the appellant as aforesaid. Hence this appeal. ( 13 ) WE have heard the learned counsel for the appellant and A. G. A. for the State and also perused the entire record. ( 14 ) IT is a case of circumstantial evidence. It has been laid down by the apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. ( 15 ) IN the case of Padala Veera reddy v. State of Andhra Pradesh, the apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (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 with in 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 the 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. " The case at hand has to be gauzed in the background of the aforesaid principles. ( 16 ) THE counsel for the appellant had seriously challenged the findings of the trial court urged that there is no evidence to show that the appellant had committed this offence. It is further argued that even if the circumstances are accepted in toto, they do not form a complete chain of circumstances and, therefore, could not have been relied upon for holding the appellant guilty. It is further argued that even if the circumstances are accepted in toto, they do not form a complete chain of circumstances and, therefore, could not have been relied upon for holding the appellant guilty. ( 17 ) THE evidence of P. W. 1 Sheel chand shows that he was not an eye witness of the occurence. He only stated that Km. Rinky had brought tea for him at 8. 30 P. M. and thereafter she did not return home. P. W. 2 Khacheru and P. W. 3 shiv Om deposed that they had seen rinky alongwith appellant. P. W. 2 khacheru stated that he went to see Mela from a shop and in the Mela he saw Raj kumar offering sweets to Km. Rinky. He also stated that this was seen by Anand, sanjay and Suresh. Thereafter, appellant and Km. Rinky were not there and they could not find them. He also deposed that raj Kumar was seen coming out of the girish Tyagis filed at 9. 00 O Clock and when he was asked abut Rinky he was very frightened and denied having seen her. The dead body of Rinky was recovered from the field of Girish Tyagi from which Raj Kumar was seen coming out. P. W. 3 Shiv Om had also supported the testimony of P. W. 2 Khacheru. He is also a shop-keeper and he was also present in the Mela. He stated that he had seen Raj kumar taking away the girl alongwith him towards school. He did not interfere because he knew that Raj Kumar and sheel Chand are friends. He had also heard the announcement on the loudspeaker. He had disclosed to the police after the recovery of the dead body. P. W. Khacheru and P. W. 3 Shiv Om were extentively cross examined but nothing could elicited to discredit their testimony about the circumstance of last seen of the deceased with the appellant. The testimony of both the witnesses is consistent and credible. P. W. 3 Shiv Om deposed that he had seen the girl alongwith Raj kumar from his shop. P. W. 2 had seen Raj kumar offering sweets to the girl in Mela, thereafter he was seen coming out of the field in a disturbed position from where the dead body was recovered. Dr. Sunil kumar P. W. 5 had conducted the postmortem on 10. 10. P. W. 2 had seen Raj kumar offering sweets to the girl in Mela, thereafter he was seen coming out of the field in a disturbed position from where the dead body was recovered. Dr. Sunil kumar P. W. 5 had conducted the postmortem on 10. 10. 2000 at about 5. 00 P. M. and in the opinion of the doctor probable time since death was about 3/4 day in the evidence he deposed that the death of Km. Rinky was possible at 9 p. m. The appellant was last seen alongwith the deceased after 8. 30 P. M. This clearly shows that deceased was last seen alongwith the deceased and thereafter she was found murdered. The case of the appellant is of denial. The evidence on the record fully establishes that the deceased was last seen alongwith the appellant and immediately thereafter she was murdered. The appellant was also seen coming out of the field from where the dead body of the deceased was recovered. The incriminating circumstances were put to the accused and he could not give any explanation whatsoever and instead his answer was of complete denial. His false denial also provides an additional link in the chain of the circumstances. In the case of Ganesh Lal v. State of Rajasthan, the Apex Court had observed: "this court had held that a false answer offered by the accused on his attention being drawn to such circumstance renders the circumstance capable of inculpating him. The court went on to say that in a situation like this such a false answer can also be counted as providing a "missing link" for completing the chain of circumstantial evidence" ( 18 ) IN our opinion the circumstances from which an inference of guilt is sought to be drawn are unerringly pointing towards guilt of the accused and the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that with in all human probability the crime was committed by the appellant and none else: and the circumstantial evidence is complete and incapable of explanation of any other hypothesis than that of the guilt of the appellant. The Sessions judge rightly recorded finding of conviction and we concur with the same. ( 19 ) LASTLY the question arises about the sentence imposed upon the appellant. The Sessions judge rightly recorded finding of conviction and we concur with the same. ( 19 ) LASTLY the question arises about the sentence imposed upon the appellant. ( 20 ) IN our view this is not a fit case for confirming the sentence of death, and it cannot be held that the other option of awarding life sentence is unquestionably foreclosed. In our opinion, the quality of evidence may be taken into account even for determining whether a sentence of life or death would be more appropriate, even if the Court is of the opinion that there is sufficient evidence for confirming the conviction of the appellant under section 302 I. P. C. The evidence adduced in this case even if true and reliable for convicting the appellant under section 302 IPC is not safe enough for "putting out a life" as the Apex Court had observed in the case of Sureshv. State of U. P. ( 21 ) CONSIDERING the facts and circumstances of the case we are of the view that a sentence of imprisonment for life to the appellant would meet the ends of justice. ( 22 ) WHILE affirming the conviction of the appellant under section 302 I. P. C. we set aside death sentence and convert the same to life imprisonment. The conviction and sentence of the appellant for life imprisonment under Section 376 i. P. C. is also maintained. ( 23 ) APPEAL is accordingly dismissed with the above modification in the sentence. ( 24 ) APPELLANT is in jail, he shall be kept there to serve out the sentence as modified by this court. ( 25 ) REFERENCE made by learned Sessions Judge for confirmation of death sentence is rejected. Appeal dismissed with modification in sentence. . .