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2015 DIGILAW 2887 (ALL)

BHURA @ JITENDRA v. STATE OF U. P.

2015-09-15

NAHEED ARA MOONIS, SHASHI KANT GUPTA

body2015
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This Criminal Appeal has been preferred by the appellants against the judgment and order dated 2.9.1982 passed by II Additional Sessions Judge, Bulandshahr in S. T. No. 415 of 1980, State v. Bhura and another, under Sections 302/34 and 376 of the Indian Penal Code (in short “the IPC”), Police Station Chatari, District Bulandshahr whereby the accused appellants have been convicted under Section 302/34 IPC and sentenced to undergo for life imprisonment. The appellant No. 1, Bhura was further held guilty under Section 376 I.P.C. and was sentenced to undergo seven years R.I. Appellant No. 2, Lokesh has also been held guilty of the charge under Section 376 I.P.C. read with Section 34 I.P.C. and was sentenced to undergo seven years R.I. Under Section 376/34 I.P.C. 2. The prosecution story, in nutshell, is as follows : 3. On 5.8.1979, one Nem Singh, husband of the deceased (Tarawati) lodged an F.I.R. (Ext. Ka-3) at the Police Station concerned alleging therein that on 5.8.1979 while he was sitting out side his house, his wife (deceased) resident of village Sultanpur Biloni left the house in the afternoon in order to scrape grass. After a little while the informant alongwith his brother Ram Singh and two labourers namely Kangali and Komal Singh proceeded to their agricultural field for weeding grass. When they were passing through the field of one Ranvir Singh, they heard the shrieks emanating from there. Hearing this, the complainant and the witnesses who were accompanying him rushed to the field. They had hardly proceeded a few steps into the field when they saw accused Bhura committing rape on the deceased Tarawati while co-accused Lokesh was pressing both her hands with his knees and had also stuffed cloth into her mouth. As soon as the complainant reached near the place of occurrence both the accused fled away from the scene hurriedly picking up their Tehmads lying there. Blood was oozing out from the nostrils of Tarawati. She had died on the spot. She was at that time carrying an eight months’ foetus in her womb. After hearing the hue and cry a number of villagers rushed to the spot. 4. Thereafter, the complainant went to P.S. Chatari and submitted a written report(Ext. Ka.1). An F.I.R (Ext. Blood was oozing out from the nostrils of Tarawati. She had died on the spot. She was at that time carrying an eight months’ foetus in her womb. After hearing the hue and cry a number of villagers rushed to the spot. 4. Thereafter, the complainant went to P.S. Chatari and submitted a written report(Ext. Ka.1). An F.I.R (Ext. Ka.3) was lodged on its basis vide Case Crime No. 186, under Section 302/376 IPC.The station officer of P.S. Chatari was not present at the police station and was away for some official work. The F.I.R was registered at 7.15 p.m., and its entry was made in the G.D. copy (Ext. Ka-4). The Head Moharir of P.S. Chatari had sent a copy of the F.I.R. through a constable to the station officer who was at that time camping at police out post Pandrawa. He received the copy of the F.I.R. at 10 p.m.. He reached the place of occurrence from the police out post Pandrawal in the morning next day i.e. 6.8.1979 and prepared a Panchayatnama (Ext. Ka-5) of the dead body of deceased Tarawati. The constable carried the dead body to Bulandshahr for post-mortem examination alongwith the papers Ext. Ka-6 to Ka-10. The Investigation officer also prepared a site plan of the place of occurrence Ext. Ka-11. He had also taken into possession a sickle, a Chadar and scrapped grass from the place of occurrence and prepared memo Ext. Ka-12 and thereafter gave it into the supurdgi of one Ram Singh. After completing investigation, the investigating officer submitted a charge-sheet in the case. 5. The accused denied charges and claimed to be tried. Accused Bhura and Lokesh are nephew and uncle by relation. Their case is that they are Thakurs by caste while the complainant and the witnesses are Lodh Rajputs. Relations between the Thakurs and Lodhrajputs have been inimical due to Pradhani elections which has led to their false implication. 6. In order to prove its case the prosecution had examined Nem Singh P.W.2, Kangali P.W.3, Komal P.W.4 as eye-witnesses while Dr. D.B. Singh P.W.1, constable Raj Bahadur P.W.5, H.C. Rameshwar Dayal P.W.6 and Hukum Singh S.I. P.W. 7 were also examined. 7. P.W. 2 Nem Singh is the complainant and eye-witness of the incident in this case. 6. In order to prove its case the prosecution had examined Nem Singh P.W.2, Kangali P.W.3, Komal P.W.4 as eye-witnesses while Dr. D.B. Singh P.W.1, constable Raj Bahadur P.W.5, H.C. Rameshwar Dayal P.W.6 and Hukum Singh S.I. P.W. 7 were also examined. 7. P.W. 2 Nem Singh is the complainant and eye-witness of the incident in this case. He stated that on the date of occurrence he was going from his house alongwith Ram Singh, Kangali and Komal to his field. As soon as they reached near the field of Ranvir Singh, they heard shrieks from there, upon which they rushed to the scene of occurrence and saw that accused persons had pinned deceased Tarawati down to the ground, accused Bhura was committing rape on her and co-accused Lokesh was pressing both her hands with his knees and had also stuffed cloth into her mouth. As soon as the accused and the other witnesses saw him, they ran away from the spot hurriedly picking up their Tehmads lying there. They chased them to some distance but the accused ran and escaped. Her nostrils were bleeding and she was dead. According to him, Tarawati was carrying an eight months’ foetus in her womb. He got a report Ext. Ka-2 of this occurrence written from Sri Babu Ram Verma and went to P.S. Chatari where he reached in the evening and submitted the report. Next day in the morning Sub Inspector of Police came to his village and he showed him the sickle, chadar and the scrapped grass which was handed over to him by the complainant. He had also identified the Dhoti, shirt and a petticoat Ext.5 to 7 belonging to his wife which she was wearing at the time of occurrence. 8. Eye-witness, P.W. 3 Kangali and PW. 4 Kamal also supported the prosecution case. P.W 6 H.C. Rameshwar Dayal stated that he was posted as Head Moharrir of P.S. Chatari on 5.8.79. On that day at 7.15 p.m. Nem Singh submitted a written report Ext. Ka-3 at the police station on the basis of which he wrote an F.I.R. Ext. Ka-3 and G.D. No. 24 whose copy is Ext. Ka-2. He further stated that he had sent the papers regarding this incident to the Station officer. 9. P.W.-7 Hukum Singh stated that on 5.8.79 he was posted as Station officer of P.S. Chatari. Ka-3 at the police station on the basis of which he wrote an F.I.R. Ext. Ka-3 and G.D. No. 24 whose copy is Ext. Ka-2. He further stated that he had sent the papers regarding this incident to the Station officer. 9. P.W.-7 Hukum Singh stated that on 5.8.79 he was posted as Station officer of P.S. Chatari. On that day he had gone to village Kanehra to make an enquiry regarding a dispute about a mosque. From the village Kanhera he came to the police out post Pandarawal at night. At about 10 p.m. Constable Vijay Singh of P.S Chatari came at the police out post Pandrawal and handed over the relevant papers to him regarding the murder of Tarawati. He came at the police out post of Pandrawal at night and next morning he left for the place of occurrence alongwith the police force. He reached the field of Ranvir Singh and prepared a Panchayatnama. A piece of Dhoti worn by Tarawati was stuffed into her mouth. After preparing the Panchayatnama and sealing the dead body, alongwith the copy of F.I.R. and other documents it was sent to Bulandshahr Hospital for post-mortem with constable Raj Bahadur and Sardar Singh. Thereafter he prepared a site plan Ext. Ka-11. He also took into possession the sickle, scrapped grass and a chadar from the place of occurrence and prepared memo Ext. Ka-12 and gave these articles into the supurtagi of Ram Singh who is the brother of Nem Singh. He also proved G.D. Copy Ext. Ka-14 and Ka-15. 10. P.W.5 Constable Raj Bahadur Singh stated that on 6.8.1979 he was posted at the police out post Pandrawal. On that day he reached the place of occurrence where the station officer sealed the dead body of Tarawati and sent it through him and another alongwith copy of F.I.R. and other documents to Bulandshahr for post-mortem examination. Post-mortem was conducted by the Doctor on 7.8.79. He was handed over the clothes taken off from the dead body of Tarawati by the Doctor which he deposited at the police station. 11. P.W. 1 Dr. D.B. Singh stated that on 7.8.1979 at about 7.40 a.m. he had performed post-mortem examination on the dead body of Tarawati which was brought by constable Raj Bahadur and Sardar Singh. He had found the following injuries on her person. 11. P.W. 1 Dr. D.B. Singh stated that on 7.8.1979 at about 7.40 a.m. he had performed post-mortem examination on the dead body of Tarawati which was brought by constable Raj Bahadur and Sardar Singh. He had found the following injuries on her person. (i) Lower two central incisor teeth broken, sockets filled with blood clots. (ii) Abrasion 4" x 3" on back of left arm middle. (iii) Abrasion 1" X 1" on inner aspect Rt. Leg middle. 12. The post-mortem report further reveals that foetus was absent and was lying in between the thighs of the deceased and was attached with the umbilicus. He also found one cloth piece filling the oral cavity hanging outside partly. In his opinion death was caused due to asphyxia as a result of suffocation. He further stated that death could have been caused two and half days prior to conducting of post-mortem. He has proved post-mortem report Ext. Ka-2. 13. Learned counsel for the appellants has submitted that the story of the eye-witness that upon hearing the shrieks of the deceased, they reached the spot is unbelievable because the deceased was not in a position to scream when the cloth was stuffed into her mouth. 14. Learned counsel for the appellants, while referring to the charges framed by the Court below dated 19.8.1980, further submitted that by order dated 19.8.1980 the Court below framed charges against the appellants only under Section 302/34 and 376 read with Section 511 I.P.C. whereas by means of the impugned judgement dated 2.9.1982 the appellant Bhura has been convicted under Section 302 read with Section 34 I.P.C. and under Section 376 IPC and appellant Lokesh inter alia under Section 376 read with Section 34 IPC. After the framing of charges, the same were never altered from 376 read with Section 511 IPC to that under Section 376/34 I.P.C, therefore, the conviction of the appellant under Section 376 read with Section 34 I.P.C was illegal and the impugned order of conviction is liable to set aside on this ground alone. 15. While referring to the post-mortem report, he further submitted that the medical evidence does not support the case of the prosecution version and does not indicate that any rape was committed on the prosecutrix. 16. 15. While referring to the post-mortem report, he further submitted that the medical evidence does not support the case of the prosecution version and does not indicate that any rape was committed on the prosecutrix. 16. It was further submitted that from the bare perusal of the post-mortem report and the testimony of the eye-witnesses it is evident that there was no intention to commit murder. At the most, it can be alleged that there may be an intention to only commit rape and therefore no offence under Section 302 I.P.C is at all made out against the appellant. 17. He further submitted that the eye-witnesses are chance witnesses and it is most improbable that at the fag end of the day i.e. at 2.30 p.m., any body would engage two labourers for removing the grass of his agricultural field and in support his contention he relied upon Section 114 of Evidence Act. Referring to the post-mortem report, it was further submitted that as per the medical evidence the stomach of the deceased was found empty and this fact itself indicates that the alleged incident had not taken place around 2.30 p.m. but must have taken place in the morning hours when she had gone to the field for easing herself. 18. Referring to the statement of concerned Doctor Mr. D.B. Singh as well as the eye-witnesses, he further submitted that there is material contradictions as to whether cloth stuffed in her mouth was taken out or was still there at the time when the dead body was sent for post-mortem. 19. It was further submitted that from perusal of the facts and circumstances of the case, it appears that in the morning of the fateful day when the deceased had gone to the field for easing herself, some unknown persons attempted to commit rape on her and when she resisted, they inserted cloth into her mouth just to prevent her from shouting and consequently she died due to asphyxia caused by suffocation. The appellants have been implicated due to the local village party bandi and political rivalry. 20. The appellants have been implicated due to the local village party bandi and political rivalry. 20. It was further urged that even if the part of the story regarding rape is accepted then also it cannot be said that the gagging of the mouth of the deceased by stuffing cloth into her mouth was done with the intention of causing death, it was intended only to prevent her from raising an alarm and the appellant had no intention to cause such bodily injury which may result into death. 21. Per contra, Mr. Rajeev Gupta, learned A.G.A, appearing on behalf of the State, supported the impugned judgement and order of conviction and submitted that the accused have committed a very heinous offence and have not only committed rape in an inhuman manner but have also committed murder of an innocent pregnant lady by dragging her into a field and gagging her mouth by stuffing cloth into it while she was out for scrapping grass and in the said process also caused death of her eight months foetus. 22. Heard Mr. Brijesh Sahai and Sri Gaurav Kakkar, learned counsel for the appellant as well as Sri Rajeev Gupta, learned A.G.A. For the State. Since the prosecution story has already been referred to in the earlier part of the judgment, we need not reiterate it in great details. 23. Perusal of the prosecution story in brief shows that the deceased who was carrying a foetus of eight months was allegedly dragged by the appellants into the field and after pinning her down her both the hands were pressed with knees by the appellant No. 2 Lokesh and cloth was stuffed into her mouth in order to prevent her from shouting and in the said process she died due to asphyxia as a result of suffocation. The alleged offence appears to have been committed in an inhuman, brutal and barbaric manner. The said gruesome incident has been witnessed by the P.W. 2, the husband of the deceased, other eye-witness P.W. 3, P.W. 4, who had reached at the spot on hearing the shrieks of deceased emanating from the nearby field. 24. Learned counsel for the appellant also invited attention to some contradictions in the testimony of the witnesses. The said gruesome incident has been witnessed by the P.W. 2, the husband of the deceased, other eye-witness P.W. 3, P.W. 4, who had reached at the spot on hearing the shrieks of deceased emanating from the nearby field. 24. Learned counsel for the appellant also invited attention to some contradictions in the testimony of the witnesses. It is true that there are some discrepancies and contradictions in the statements of the witnesses with regard the alleged cloth in the mouth of the deceased as the P.W. 2 had stated that he had taken out the cloth from the mouth of the deceased at the spot, but the post-mortem report indicates that a cloth was found filling the oral cavity hanging outside partly. In our view, all such contradictions are minor in nature and when rustic witnesses like the P.W. 2, P.W. 3 and P.W. 4 depose in the Court, after lapse of a considerable period of time of the incident, some contradictions are bound to creep in their evidences and does not dilute the testimony of the witnesses as well as the case of the prosecution and the accused persons cannot get benefit of such minor contradictions which does not go to the root of the matter. Admittedly, all the eye-witnesses have unequivocally deposed that the mouth was stuffed with cloth and it finds support from the post-mortem report also. Merely because the P.W. 2 had stated that he had taken out the cloth from her mouth at the spot would not in any manner discredit the testimony of the eye-witness particularly when the cause of death was admittedly due to asphyxia as a result of smothering. Cause of death has not been challenged by the appellants. Thus, we do not find any force in the submission so made by the learned counsel for the appellants. 25. So far as the question of ante timing of lodging of F.I.R is concerned, it is evident from the record that no question was ever put to the eye-witnesses with regard to the possibility of ante timing of the F.I.R. before the trial Court, the appellant cannot be permitted to take such plea at this stage that the F.I.R. was ante timed. The learned counsel failed to show any circumstances which could possibly be taken into consideration for holding the F.I.R. ante timed. The learned counsel failed to show any circumstances which could possibly be taken into consideration for holding the F.I.R. ante timed. There is thus no reason to hold that the F.I.R. was ante timed. 26. As far as the question raised by the learned counsel for the appellants that no body, in fact, had seen the incident and the eye-witnesses were chance and interested witnesses and were set up by the proecution to depose falsely against the accused is concerned, it is significant to note that in cross-examination the complainant had deposed that his wife Tarawati left the house while he was present in the house. She had left the house at about 2.00 p.m. The complainant as well as other witnesses present at the house had seen her going away from the house. When she left the house she was carrying with her a sickle and chadar which later on were found in the field of Ranvir Singh near the place where her dead body was lying. These articles were taken into possession by the Investigation officer and have been exhibited. 27. According to PW 3 and P.W. 4, they had gone with Nem Singh for removing weeds as labourers. In their testimonies they have fully supported and corroborated the statement of the P.W. 2 Nem Singh and we do not find any infirmity or material contradiction to reject their testimony. The complainant P.W. 2 was subjected to extensive cross-examination and has given a consistent, uniform and credible version of the incident and proved his presence on the spot. No justifiable reason is shown as to why he being the husband of the deceased should chose to falsely implicate the accused persons letting the real culprit to escape. He has given valid reasons for being present at the spot at the relevant time. There is no evidence on record as to prove that the route taken by the complainant to reach his field was a longer route than the other possible route. Hence, there is no reason to disbelieve the statement of Nem Singh that he was passing from near the place of occurrence alongwith the other witnesses to reach his field. Witnesses Komal and Kangali have denied any relationship with the complainant Nem Singh. Defence was not able to show any relationship of P.W. 12 with the witnesses Komal Singh and Kangali. Witnesses Komal and Kangali have denied any relationship with the complainant Nem Singh. Defence was not able to show any relationship of P.W. 12 with the witnesses Komal Singh and Kangali. Thus, we find no reason to doubt the presence of the eye-witnesses on the spot. 28. As far as the contention of the appellant that the medical evidence does not indicate any sign of rape on the person of the deceased and except two minor injuries there is no external injuries on the person of the deceased is concerned, it is not disputed that at the time of death of the deceased, she was pregnant and had a eight months’ foetus, the abortion was caused due to violence on her person and since the foetus had come out from her body, the concerned doctor could not find any evidence of rape because the vagina or smear of vagina could not furnish any evidence. It is significant to note that, as per post-mortem report, injuries were also found on the thigh and arm of the the deceased and these two injuries corroborates the oral evidence of violence on her person. Moreover, the evidence is that the accused committed rape by stuffing the cloth into the mouth of the deceased and the appellants Lokesh pressed both her hands with his knees making her totally helpless and immobile. In such a situation, the prosecutrix was not in a position to offer any resistance. Therefore, under the circumstances absence of several external injuries on her person was quite natural. 29. The record further reveals that the deceased had left the house at about 2.00 p.m. and as as per statement of her husband (P.W.1), she had not eaten any thing since morning on the fateful day and, under these circumstances, it was but natural to find the stomach empty, and therefore we do not see any force in the contention so made by the learned counsel for the appellant in this regard. 30. 30. Analyzing the facts of the case appearing from record and the arguments placed by the learned counsel appearing for the parties, the factual position which emerges is that the appellants attempted to prevent the victim from offering any resistance by stuffing cloth in her mouth which led to suffocation (“asphyxiation”) and consequential death, the acts of the appellants would fall within the four corners of Section 300 I.P.C. which provides as follows: 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— (Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— (Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— (Fourthly)—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 31. The question with regard to the intention on the part of the accused/appellants to cause death depends upon the facts and circumstances of each case, no hard and fast rule can be laid down, Section 300 of the Code as quoted above provides that subject to the exceptions contained therein culpable homicide will be murder, if the act by which the death is caused with intention of causing death. Undisputedly commission of offence has been proved by P.W. 2 Nem Singh, who is the husband of the deceased and two other independent witnesses Kangali and Komal P.W. 3 and P.W. 4 respectively, coupled with the statement of Dr. B. Singh, who had conducted the autopsy on the dead body of the deceased who had specifically stated that the death had been caused due to suffocation by stuffing cloth, which was found in her mouth. B. Singh, who had conducted the autopsy on the dead body of the deceased who had specifically stated that the death had been caused due to suffocation by stuffing cloth, which was found in her mouth. There was motive, intention and knowledge on the part of the appellants, which led to the death of the deceased and it cannot be said that the incident had occurred on the spur of moment without there being any intention of causing death, we are therefore of the opinion that the appellants have rightly been found guilty of commission of offence under Section 302/34 IPC. 32. Thus, on the basis of foregoing discussions, we are of the view that prosecution has been able to establish beyond reasonable doubt that accused-appellants had committed the murder of deceased Tarawati on the date, time and place mentioned in the First Information Report and also in the manner alleged by the prosecution. 33. Thus, trial Court’s finding that accused-appellants are guilty of committing the offence inter alia under Section 302 read with 34 IPC is in accordance with law. Framing of the charges only under Section 376 read with Section 511 I.P.C but awarding sentence under Section 376/34 I.P.C. is of no importance in the instant case where both the appellants have been found guilty of the charge punishable under Section 302/34 I.P.C. Therefore, no prejudice has been caused to the accused-appellant in the matter. No interference is required on mere technicalities. 34. In view of the foregoing discussions and on close scrutiny of the entire evidence, we do not find any illegality, infirmity or perversity in the impugned judgment and order passed by the trial Court, as the learned Trial Court has not committed any error of law or fact in convicting the appellant No. 1 Bhura under Section 302 read with 34 IPC. and Sections 376 I.P.C. and appellant No. 2 Lokesh under Section 302/34 I.P.C. and under Section 376/34 I.P.C. 35. Consequently, the appeal being bereft of any merit is hereby dismissed. The conviction and sentence of the accused-appellants hure and Lokesh is affirmed. Since both the accused-appellant are on bail, their bail bonds are cancelled. The trial Court concerned is directed to get the accused-appellants arrested and sent them to jail to serve the sentence awarded to them by the trial Court. 36. The conviction and sentence of the accused-appellants hure and Lokesh is affirmed. Since both the accused-appellant are on bail, their bail bonds are cancelled. The trial Court concerned is directed to get the accused-appellants arrested and sent them to jail to serve the sentence awarded to them by the trial Court. 36. The record of the trial Court alongwith copy of this judgement be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. 37. Compliance report be also submitted to this Court.