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2010 DIGILAW 544 (MP)

Haricharan v. State of M. P.

2010-05-12

S.K.GANGELE, S.S.DWIVEDI

body2010
JUDGMENT Dwivedi, J. -- 1. The appellant has preferred this appeal under section 374(2)of the Code of Criminal Procedure aggrieved by the judgment of conviction and sentence dated 8th November, 2001 passed -by the Additional Sessions Judge, Ganjbasoda, District Vidisha in Sessions Trial No. 139/2000, whereby, the appellant has been found guilty for the offences punishable under sections 363,366, 376(2)(f) and also section 302 of the Indian Penal Code and sentenced to three years' rigorous imprisonment with fine of Rs.2001-, five years' rigorous imprisonment with fine of Rs.2001-, ten years' rigorous imprisonment with fine Rs.2001- and imprisonment for life with a fine of Rs.2001- respectively and in default of payment of fine, he has to suffer further one month's rigorous imprisonment on each count. All sentences are directed to run concurrently. 2. Briefly stated facts of the case are, on 23.9.1999 one Mathura Prasad (PW1) lodged a first information report at Police Station Basoda, District Vidisha that on the last night of 22.9.1999 at about 10 p.m. when he was in the temple situated at village Pachma at that time one Kanchan Bai and Sandhya came to him and stated that the appellant-accused Haricharan forcibly taken away his minor girl Sita BaL He immediately rushed to him then on the way his wife Keshar Bai (PW7) met him and she also stated that the appellant-accused forcibly taken away the minor girl Sita Bai with him. He searched the minor girl Sita Bai and the appellant accused, but both of them were missing. On 25.9.1999, the dead body of the minor girl Sita Bai was found in a well situated in the village concerned. On the basis of this information, the police registered a case, prepared an inquest report and prepared inquest Panchnama of the dead body of Sita Bai, a minor girl aged about ten years and sent the dead body of the deceased Sita Bai for post-mortem examination. The post mortem examination has been performed by Dr. D.K. Jain (PW8) with a penal of three doctors and found the dead body was in decomposed condition, there are injury marks on the abdominal area and on the private part of the dead body, there are also swelling in the vaginal area of the deceased. The death found to be caused within three to five days. The private part of the deceased had been examined by lady Assistant Surgeon Dr. The death found to be caused within three to five days. The private part of the deceased had been examined by lady Assistant Surgeon Dr. Hansa Shah (PW9) and she also found that the blood was oozing from the private part of the dead body and labia mejora and labia minora are also found 0 be bluish in colour, two slides have also been prepared in respect of the vagina discharge and the hymen was also found to be raptured. The slides after sealing it properly given to the constable for its further chemical examination and proved the report EX.P-18. During investigation, the statements of witnesses have been recorded, the appellant-accused has been arrested and after due investigation, a charge-sheet has also been filed. 3. The appellant-accused abjured the guilt and his defence is of false implication. The learned trial Court after due appreciation of the entire evidence on record by the impugned judgment held the appellant-accused guilty for the offences punishable under sections 363, 366, 376(2)(f) and also under section 302 of the Indian Penal Code and sentenced him as stated hereinabove; aggrieved by which, the appellant has preferred this appeal. 4. Heard the learned counsel for the appellant as well as learned Public Prosecutor appearing for the State and perused the record. 5. It is submitted on behalf of the appellant that no eye-witness is available against the appellant, on the basis of which, this can be found proved that the appellant is the person who committed murder of deceased Sita Bai. The prosecution is rest upon only on the circumstantial evidence of last seen with the deceased and that itself is not a conclusive proof for the guilt of the accused and the learned trial Court has wrongly held the appellant-accused guilty for the alleged offences. 6. The learned counsel for the appellant has also placed reliance on a decision of the apex Court in the case of State of Punjab v. Sarup Singh [ AIR 1998 SC 2899 ], wherein, it is held that "only on the basis of circumstantial evidence of last seen with the deceased, no inference about the guilt of the accused-Sarup Singh can be drawn on the basis of circumstancial evidence of last seen". Therefore, prayed for setting aside the impugned judgment of conviction and sentence passed by the trial Court. 7. Therefore, prayed for setting aside the impugned judgment of conviction and sentence passed by the trial Court. 7. The learned Public Prosecutor for the State supported the impugned judgment and prayed for dismissal of the appeal. 8. To bring home the charges as levelled against the appellant, the first mitigating circumstance available against the appellant is that he IS the person who had forcibly taken away the deceased minor girl Sita Bai with him. For this, the prosecution had examined Sandhya (PW6) as witness, who clearly stated that when she together with Sita Bai returning from the temple to their house, at that time near culvert, the appellant accused Haricharan came and he caught the deceased Sita Bai and took her forcibly with him. Sita Bai started weeping but the accused had assured her that he will give her something, then this witness immediately rushed to the house of the Sita Bai and narrated the incident to her mother and then she also informed to the father who was at that time in the temple concerned. In detail cross-examination of this witness, some minor contradiction has been brought by the defence with regard to narration of the incident to the father of Sita Bai in the temple, which is not there in the previous statement of PW 1 recorded during investigation. For this minor contradiction, the entire statement of Sandhya (PW6), who is admittedly a child aged about 12 years who actually saw the appellant accused forcibly taking Sita Bai with him, can be disbelieved. who also narrated that when she has been informed about, forcibly kidnapped of her daughter Sita Bai by the appellant-accused, then she immediately rushed to the spot and she also saw the appellant-accused going towards village Semari with her minor daughter Sita Bai. Thereafter she immediately rushed to her husband and narrated about the incident. In the cross-examination of this witness, nothing substantial came, on which basis the aforesaid statement that this witness Kesarbai also saw the appellant-accused with Sita Bai, the deceased going towards village Semari can be disbelieved. 10. The aforesaid witness Sandhya (PW6) and Kesarbai (PW7) and Mathura Prasad (PW 1) father of the deceased also stated that the dead body of the Sita Bai was found in a well situated in the village concerned. 10. The aforesaid witness Sandhya (PW6) and Kesarbai (PW7) and Mathura Prasad (PW 1) father of the deceased also stated that the dead body of the Sita Bai was found in a well situated in the village concerned. Then, Mathura Prasad (PW 1) immediatly informed the police and lodged the report EX.P-l. The police came on the spot and the dead body of deceased Sita Bai was recovered from the well on 25.9.1999. The appellant-accused forcibly kidnapped the minor girl SitaBai on 22.9.1999. The time of death is ascertained by the autopsy surgeon by the statement of Dr. D.K. Jain (PW8) and after the examination of the dead body found that the death is occurred within three to five days. This period clearly indicates the point of time 22.9.1999 when the accused was lastly seen with the deceased Sita Bai when he forcibly taken away the deceased Sita Bai with him. 11. The motive of causing death of Sita Bai is also apparent on the basis of statement of a medical witness Dr. Hansha Shah (PW9), who had examined the private part of the deceased Sita Bai and found that the hymen had been raptured and blood was oozing from the private part. This clearly indicates that before her death, the deceased Sita Bai was subjected for the forcibly intercourse by the accused and thereafter she had been thrown in a well from where the dead body has been recovered nearabout three days after the incident. 12. Thus, the a foresaid circumstances, clearly indicates the involvement of the appellant-accused in the incident that he actually kidnapped the minor girl Sita Bai and thereafter committed rape (In her and then for saving himself from the punishment for the alleged offences of rape, he threw the prosecutrix Sita Bai into a well from where three days after the dead body has been recovered; 13. Thus, we are of the considered opinion that the circumstantial evidence of last seen with the accused as stated by the Sandhya (PW6) and Kesarbai (PW7) and thereafter recovery of dead body from the well which is found to be dead nearabout three days before recovery and this also supported by the medical evidence that the before the death, the deceased Sita Bai was subjected to forcibly intercourse, thus, chain of circumstances are so conclusive, on the basis of which an inference can be drawn that the accused-appellant is the person who kidnapped the minor girl Sita Bai, committed rape on her and thereafter threw her into a well and thereby caused her death. 14. The learned counsel placed reliance on the decision of the apex Court in the case of Sarup Singh (supra), but the facts of the aforesaid case are different to the facts of the present case. In the aforesaid case, only on the basis of recovery of certain articles from the possession of the accused, on the point of circumstantial evidence of last seen, the apex Court has held that the chain of circumstances are not conclusive therefore affirmed the acquittal of the accused Sarup Singh. 15. In the present case, there are ample evidences available on record which indicate that the appellant-accused forcibly taken away the minor girl Sita Bai with him, thereafter as per medical evidence, rape has been committed on her and thereafter she had been thrown into the well and thereby also caused death of the minor girl Sita Bai. The death is also found to be of the same period when the accused was lastly seen with the deceased and in such circumstance, the evidences available against the accused are sufficient to held him guilty for the aforesaid offences. 16. The Hon'ble apex Court in the latest decision in the case of Manivel and others v. State of Tamil Nadu [ (2008)12 SCC 748 ], while dealing with the circumstantial evidence of last seen with the deceased after discussing the entire case law on the point has held hereas under: "14. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish [ (2005)3 SCC 114 , it was noted as follows: "22. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish [ (2005)3 SCC 114 , it was noted as follows: "22. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2." "15. In Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh [ (2006) 10 SCC 172 ], it was noted as follows: "27. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the Courts should look for some corroboration." 17. Similar view has been reiterated by the apex Court in another decision in the case of Kusuma Ankama Rao v. State of Andhra Pradesh [ (2008) 13 SCC 257 ], wherein while accepting the circumstantial evidence of last seen with the deceased has held herein under: "10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of Andhra Pradesh [ (1996)10 SCC 193 ], wherein it has ,been observed thus: "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further,' the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 18. Considering the aforesaid law laid down by the Hon'ble apex Court, we are of the considered opinion that the circumstantial evidence available against the accused is that he is the person who has forcibly taken away the deceased Sita Bai with him and the medical evidence supported the fact that the rape has been committed on deceased Sita Bai, her death is also within the period when the appellant-accused has kidnapped the prosecutrix Sita Bai. Therefore, the chain of circumstances are so complete on which basis inference can be drawn against the appellant-accused that he is the person who committed the aforesaid offence of kidnap, commission of rape on the deceased and also caused death of the deceased by throwing her into a well. 19. Thus, in view of the a for said discussion, we are of the considered opinion that the learned trial Court has rightly held the appellant-accused guilty for the offences punishable under sections 363, 366, 376(2)(f) and also under section 302 of the Indian Penal Code and also rightly sentenced him for these offences and, therefore, the aforesaid findings of conviction and sentence recorded by the trial Court are hereby affirmed. The appeal preferred by the appellant-accused being devoid of any substance, is dismissed accordingly.