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2013 DIGILAW 155 (UTT)

RAJU v. STATE OF UTTARAKHAND

2013-03-19

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Hon’ble Alok Singh, J. 1. In the present appeal, appellant is assailing the judgment and order dated 15.09.2008 / 16.09.2008 passed by Additional Sessions Judge/1st FTC, Dehradun in Sessions Trial No. 88 of 2005 whereby accused was convicted for the offences punishable under Section 302, 376 (1), 201 IPC and sentenced to undergo life imprisonment and to pay fine of Rs. 10,000/-, failing which to undergo six months additional rigorous imprisonment under Section 302 IPC, to undergo 10 years rigorous imprisonment and to pay fine of Rs. 5,000/- failing which to undergo three months additional rigorous imprisonment under Section 376 IPC AND to undergo three years rigorous imprisonment and to pay fine of Rs. 2,000/- failing which to undergo one month additional rigorous imprisonment under Section 201 IPC. All the sentences were ordered to run concurrently. 2. Brief facts of the present case, inter alia, are that PW3 lodged an FIR with police station Raiwala, District Dehradun on 23.06.2005 to the effect that on 22.06.2005 between 3.00 p.m. to 4.00 p.m. his daughter ‘A’, aged about 12 years, had gone to nearby jungle on natural call to relieve herself; when she did not return, a search was made for her and inquiries were made from the nearby people; in the morning of 23.06.2005, all the villagers started making search for ‘A’ and her dead body was found lying near the forest road towards Gwal Tappad in the jungle; on seeing the dead body, it appeared that she was raped before her murder. 3. Dead body of ‘A’ was taken into custody by the police and was sent for postmortem examination. Dr. Hemant Bhardwaj (PW10), who conducted the postmortem examination upon the dead body of ‘A’, opined that cause of death was asphyxia due to strangulation and before her murder, she was subjected to sexual abuse. He further opined that death could be caused between 3.00 p.m. and 4.00 p.m. on 22.06.2005. He further opined that there were multiple graze abrasions, on the hip and back of ‘A’. 4. Having lodged the report, police investigated the matter and filed a charge-sheet against accused appellant for the offences punishable under Section 302, 376(1), 201 IPC. Before the trial Judge, PW1 Suraj, PW2 Shail Devi, PW3 Dharam Singh, PW4 Bal Govind, PW5 Atar Singh, PW6 Bhola Singh Rawat, PW7 Baraf Singh Pokhariyal, PW8 Taj Kaluda, PW9 Balbeer Chauhan, PW10 Dr. 4. Having lodged the report, police investigated the matter and filed a charge-sheet against accused appellant for the offences punishable under Section 302, 376(1), 201 IPC. Before the trial Judge, PW1 Suraj, PW2 Shail Devi, PW3 Dharam Singh, PW4 Bal Govind, PW5 Atar Singh, PW6 Bhola Singh Rawat, PW7 Baraf Singh Pokhariyal, PW8 Taj Kaluda, PW9 Balbeer Chauhan, PW10 Dr. Hemant Bhardwaj, PW11 Mahendra Singh, PW12 Bhuwneshwar Sharma, PW13 SI Bhupendra Singh were examined. 5. The trial Judge, having considered the entire material available on record, has found the appellant guilty for the offences punishable under Section 376 (1), 302, 201 IPC and convicted & sentenced him, as mentioned hereinabove. 6. We have heard Mr. Pawan Mishra, Amicus Curiae for the appellant and Mr. Amit Bhatt, Deputy Advocate General (Criminal) assisted by Mr. V. P. Bahuguna, Brief Holder, for the State and have carefully perused the record. 7. PW3 Dharam Singh and PW2 Shail Devi have stated, on oath that they had no toilet in their house and on 22.06.2005, their daughter ‘A’ went to nearby jungle to answer the natural call and when she did not come back, after a considerable time, search was made for her and inquiries were made from neighbours but in vain. In the next morning, her dead body was found lying on the thoroughfare going towards Gwal Tappad in the forest. Suraj, aged about 14 years, was produced as PW1. Before recording his statement, learned trial Judge asked some questions in order to satisfy himself about the understanding of PW1 and then, recorded his statement. PW1 has stated that he was a student of Class IV and on the fateful day, between 4.00 p.m. and 5.00 p.m., he along with other children were playing near the fencing of forest; they had seen appellant coming from jungle; appellant was running and was sweating. He was cross-examined at length, however, defence was not able to shake his reliability. He was cross-examined at length, however, defence was not able to shake his reliability. PW4 Bal Govind has stated that his house was adjoining to the forest’s fencing and on 22.06.2005 at about 3.00 p.m. or 4.00 p.m. his sheeps were grazing in the forest and he was standing near his sheeps and goats, he, then noticed that appellant, brother-in-law of Rajendra, was carrying ‘A’ in his lap into the jungle; since girl was so innocent and young, he thought that she must have received injuries, therefore, Raju was carrying her in his lap just to help her. Meanwhile, his sheeps moved ahead, therefore, he also moved ahead with his sheeps. He has further stated that on the next day, after recovery of dead body of ‘A’, he realized that there was something fishy on yesterday evening, so he made statement to the police. PW5 Atar Singh has stated that on 22.06.2005, he had taken his sheep for grazing purpose in the nearby jungle where he saw Raju was breaking bushes and ‘A’ was lying near bushes. He thought perhaps ‘A’ would have fallen and he was helping her. Meanwhile, there were heavy winds started therefore, without having any suspicion, he came back to his house along with sheeps. He has further stated that when her dead body was found, he took no time to understand, who had committed the crime, so he had narrated the entire incident to the police. 8. Having perused the statements of PW1, PW4 and PW5, in our firm opinion, learned trial Judge was perfectly well within its jurisdiction to hold that prosecution has successfully proved that ‘A’ was last seen in the company of appellant in the jungle and appellant was seen coming out from jungle alone and his behaviour was not normal, as stated by the child witness PW1. 9. Not only this, appellant was arrested on 23.06.2005, itself and his underwear and undershirt were taken into custody and were sent for Forensic Examination and as per chemical examiner report, his underwear and undershirt were having human bloodstains. 10. In view of statements PW4 and PW5, appellant was last seen in the company of ‘A’ in the forest. 9. Not only this, appellant was arrested on 23.06.2005, itself and his underwear and undershirt were taken into custody and were sent for Forensic Examination and as per chemical examiner report, his underwear and undershirt were having human bloodstains. 10. In view of statements PW4 and PW5, appellant was last seen in the company of ‘A’ in the forest. Appellant was seen coming out from forest by PW1 alone and his clothes were found having human bloodstains, therefore, onus was of the appellant, as provided under Section 106 of the Indian Evidence Act, to prove that as to how his under garments received human bloodstains and he has not committed the crime. 11. Since prosecution has successfully proved its case and appellant has failed to discharge his onus to prove his innocence, therefore, the legal inference was rightly drawn by the trial court that he was the appellant, who had committed this crime. There is nothing on record to show as to why the PW1, PW4 and PW5 would falsely implicate the appellant, therefore, we find no reason to interfere with the judgment impugned. The appeal fails and is dismissed. 12. Let a copy of this judgment be sent to the court below for compliance along with lower court record.