Research › Search › Judgment

Chhattisgarh High Court · body

2015 DIGILAW 8 (CHH)

Raju v. State of Madhya Pradesh

2015-01-07

MANINDRA MOHAN SHRIVASTAVA, NAVIN SINHA

body2015
JUDGMENT Navin Sinha, Actg. C.J. 1. The Appellant stands convicted under sections 376 and 302 IPC to life imprisonment separately on both counts along with fine of Rs. 10,000/- on each count. In the event of failure to pay the fine, he was required to undergo one year further rigorous imprisonment on the default count as ordered on 19.3.1999 by the 3rd Additional Sessions Judge, Bastar at Jagadalpur in Sessions Trial No. 199 of 1998. 2. It is the case of the prosecution that the body of the deceased girl child aged approximately seven years was found on 15.3.1998 in an abandoned house 20-25 meters from where she resided with her parents in rented accommodation. The Appellant was the son of the landlord. The body on recovery was taken to the hospital by PW2, Bharti and PW3, Mohanlal, the parents of the deceased, where she was pronounced dead. Merg intimation was received from the hospital leading to FIR, Exhibit P13 registered by the Police on 16.3.1998 at about 12:05 pm. The postmortem of the deceased was conducted on 16.3.1998 at about 11:30 am noticing that froth was coming out of the nostrils. The eyes were popping and the mouth was open. There was strangulation mark around the neck on the level of the cartilage. The cause of death was asphyxia due to strangulation homicidal in nature confirming that she had been sexually assaulted before strangulation. 3. On 8.7.2014 during the pendency of the appeal, the Appellant raised an objection that he was a juvenile under 18 years of age on the date of occurrence. The Court directed an enquiry under Section 7(A) of the Juvenile Justice (Care of Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). The enquiry report has been received from the Court of the 3rd Additional Sessions Judge, Bastar at Jagdalpur. The Appellant himself examined apart from leading evidence of his elder brother. The Sessions Judge called for the records from the Maharani Hospital, Jagdalpur, where the Appellant and his brother claimed he had been born on 24.5.1982 and also from the Revenue Officer, Jagdalpur Municipal Corporation. No entries with regard to the Appellant or name of his parents was found in the hospital records and none was found in the birth and death register of the Corporation. No entries with regard to the Appellant or name of his parents was found in the hospital records and none was found in the birth and death register of the Corporation. As the Appellant stated that he had never gone to school and he possessed no other documentary evidence regarding his age, the Sessions Judge ordered bone ossification test by the medical board under Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007(hereinafter called 'the Rules'). The medical report opines that on the basis of his present estimated age of 35-40 years, he was approximately 19 or above years of age on the date of occurrence, i.e. 15.3.1998. 4. In Abuzar Hossain Alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 it has been held that a concession of one year could be given in cases of such assessment of age. That leaves the Appellant as 18 or above years of age on the date of occurrence. The plea of juvenility is therefore not available to him as under Section 2(k) of the Act to claim juvenility the person must not have completed 18 years of age. The plea of juvenility is therefore rejected. 5. Learned Counsel for the Appellant submitted that Merg intimation 14 of 1998 recorded on receipt of information from the Maharani Hospital, Jagdalpur, as mentioned in the FIR has not been exhibited. It is not known what may or may not have been written in the Merg intimation with regard to the manner and nature of occurrence and how the death occurred. The possibility that the death may have occurred in a different manner at another location in an offense committed by another cannot be ruled out. The benefit of doubt must be given to the Appellant. It was next submitted that Dr. Pradeep Pandey, who had given an opinion by Exhibit P11 on police query if death could have been caused by the seized gunny bag and had also conducted postmortem of the deceased, had not been examined by the prosecution and no explanation has been given for the same. This has caused serious prejudice to the Appellant as he has been denied the opportunity to cross-examine him. This has caused serious prejudice to the Appellant as he has been denied the opportunity to cross-examine him. The extra judicial confession allegedly made by the Appellant to PW4, Pappu @ Ravindra was not reliable at all and not worthy of credit because the witness has not explained that if the Appellant had told him of having killed the deceased, why the witness did not go and inform this fact to any other. 6. Learned Counsel for the State opposing the appeal submitted that the body was found inside the abandoned house in a dark corner on information given by the Appellant to the mother of the deceased, PW2. When the witness could not see anything in the darkness, the Appellant lit a match stick and removed the gunny bag from over the body which had been placed in a sitting position with the hands in the lap. No challenge has been raised to the statement of the witness that the Appellant led her to the body. Similarly no challenge has been raised that the extra judicial confession was never made by the Appellant to PW4 or that it had not been made voluntarily. 7. We have considered the respective submissions and also the evidence on record. 8. PW1, Kanhaiyalal, uncle of the deceased deposed that PW3, Mohanlal, father of the deceased came to him and informed that the deceased had left home at about 12.30 pm and was not to be seen. The witness identified the Appellant as the son of the landlord of PW3, and also that the body was found in the abandoned house opposite the Appellant's house. He deposed that the Appellant had taken the others to the abandoned house. The Appellant removed the jute bag from a corner below which the body of the deceased was in a sitting position. The deceased was then taken to the Hospital where she was pronounced dead. He proved the Inquest report Exhibit P1 and the seizure of the gunny bag, marked Exhibit P2 as also the clothes of the deceased, marked Exhibit P3. The memorandum of the Appellant, marked Exhibit P4 was also proved by the witness including the consequent seizure Exhibit P5 of the powder tin with oil in it. The witness also proved Exhibit P7 the underwear of the Appellant seized by the Police. The memorandum of the Appellant, marked Exhibit P4 was also proved by the witness including the consequent seizure Exhibit P5 of the powder tin with oil in it. The witness also proved Exhibit P7 the underwear of the Appellant seized by the Police. The witness further deposed that the eyes of the deceased were popping and the tongue was protruding with froth coming out from the nostrils. 9. PW2, Bharti, deposed that her daughter, the deceased, was sitting outside the house. When her father came back home in the evening she was not to be seen. The Appellant on query by the witness had stated that she may go and look in the abandoned house. She went to the abandoned house with the Appellant but did not see her daughter. The Appellant then took her to a corner and lit a match stick, removed the gunny bag revealing the body of the deceased in the corner and in a sitting posture with the hands folded and tongue sticking out. She brought the child home in her lap after which the child was taken to the hospital by PW3, the father. Significantly in cross-examination, the Appellant did not put any question to the witness with regard to her deposition that he had accompanied the witness to the abandoned house, lit a match stick in the darkness and removed the gunny bag to show her where the body of the deceased was lying. This part of the evidence of PW2 having gone completely unchallenged is a very strong corroborative factor against the Appellant. 10. PW3, Mohanlal, father of the deceased stated that the child was missing since noon and was not to be seen till the evening. At about 7.00 pm, the Appellant told him to go and look in the abandoned house when the body was recovered after the Appellant removed the gunny bag. He also proved the Inquest report. Again, in cross-examination no question has been put by the Appellant to the witness with regard to discovery of the body in the abandoned house attributable to the information given by the Appellant. 11. PW4, Papu @ Ravindra, a friend of the Appellant, deposed that at about 1.30 pm on the date of occurrence while he was sitting near the shop the Appellant came to him and made enquiry that how does one come to know if a person is dead. 11. PW4, Papu @ Ravindra, a friend of the Appellant, deposed that at about 1.30 pm on the date of occurrence while he was sitting near the shop the Appellant came to him and made enquiry that how does one come to know if a person is dead. The witness told him that breathing stops and the heart also stops beating. The Appellant kept quite. The witness asked him why he was asking such questions. The Appellant asked the witness to first bring tobacco for him. The Appellant then informed the witness that he had killed somebody. On enquiry made with regard to identity of the deceased, the Appellant informed that he had killed the daughter of his tenant with his own hands by covering the mouth as she was throwing stones at him. Significantly, again in the cross-examination, the Appellant did not even deny or question not having met the witness on that day much less was any question put or suggestion made that he never made any extra judicial confession to the witness with regard to his having killed the deceased. No question was also put that the extra judicial confession had not been made voluntarily or that it was made under any duress except a very bald suggestion that in the month of January he had a fight with the witness. 12. PW5, Dr. Somesh Pandey conducted the medical examination of the Appellant on 16.3.1998 at 1.35 pm and proved the report, Exhibit P8. No smegma was found on the penis of the Appellant. The witness deposed he suspected semen like stains on the underwear of the Appellant seized and marked Exhibit P10. The witness also proved Exhibit P11, the report of Dr. Pradeep Pandey on the query made by the Police identifying the signature of the latter as working with him in the Hospital. 13. PW7, Dr. Smt. S. Pandey deposed that since the victim was a female the postmortem was conducted by her along with Dr. Pradeep Pandey and proved the postmortem report Exhibit P12 conducted on 16.3.1998 stating that death had taken place around 18 to 24 hours earlier. In cross-examination she stated that there were no injuries on the person of the deceased and if resistance had been offered there would have been some external injuries on the body. Pradeep Pandey and proved the postmortem report Exhibit P12 conducted on 16.3.1998 stating that death had taken place around 18 to 24 hours earlier. In cross-examination she stated that there were no injuries on the person of the deceased and if resistance had been offered there would have been some external injuries on the body. But we find from the Forensic report that blood was found under the nails of the deceased which is but an indication of resistance that may have been offered by the minor deceased girl child with her limited strength and capability over that of a male who was at least 11 years elder to her. 14. PW8, Mehtab Singh Goliya is the Investigating Officer. He proved having recorded the FIR and the Exhibits referred to as also the forensic report marked Exhibit P20 along with spot map Exhibit P21. 15. There is no direct evidence available by way of an eye witness with regard to the Appellant having committed the crime. The forensic report does not confirm presence of semen or blood stains in his underwear. No injury or smegma has been found on his penis. Blood has however been found under nails of the deceased. 16. The Appellant in his statement under Section 313 Cr.P.C has acknowledged that he is the son of the landlord. Quite obviously the Appellant therefore enjoyed the confidence of the minor child. She perhaps saw no reason to doubt the conduct and intention of the Appellant and may have voluntarily accompanied him to the abandoned house reposing faith in him. The body after the assault was put in a sitting position with hands in the lap, a normal sitting posture obviously to give an impression otherwise. 17. The Appellant has not denied having made the extra judicial confession much less has he contended that it was not made voluntarily. An extra-judicial confession undoubtedly is a very weak piece of evidence. It has to be established that it was made by the maker, that it was made voluntarily by the maker of his own volition without any external influence, undue pressure or coercion. The person to whom he made the extra-judicial confession was his own friend. An extra-judicial confession undoubtedly is a very weak piece of evidence. It has to be established that it was made by the maker, that it was made voluntarily by the maker of his own volition without any external influence, undue pressure or coercion. The person to whom he made the extra-judicial confession was his own friend. The Appellant does not deny that he had met PW-4 on the fateful day asked questions to him and then disclosed that he had killed the deceased identifying her as the daughter of his tenant. The Appellant likewise does not deny taking the mother of the deceased to the abandoned house and on her saying that she cannot see the child, lit a match in the darkness at the particular corner to reveal the dead body covered by a gunny bag. Taking into consideration all attending surrounding circumstances, the extra-judicial confession made voluntarily can also be the foundation for a conviction. There is no theory in criminal jurisprudence that an extra judicial confession cannot be the foundation for a conviction. It shall depend much on the facts and circumstances of each case. The victim was a seven years old minor girl. We see no reason why PW2, the mother of the minor victim child would be deposing falsely against the Appellant to implicate him. Indeed not a whisper of suggestion has been made on behalf of the Appellant in this regard. 18. In R. Kuppuswamy v. State (2013) 3 SCC 322 it was held as follows with regard to extra judicial confession:-- "11. It is unnecessary, in the light of above pronouncements, to embark upon any further review of the decisions of this Court on the subject. The legal position is fairly well settled that an extra-judicial confession is capable of sustaining a conviction provided the same is not made under any inducement, is voluntary and truthful. Whether or not these attributes of an extra-judicial confession are satisfied in a given case will, however, depend upon the facts and circumstances of each case. The legal position is fairly well settled that an extra-judicial confession is capable of sustaining a conviction provided the same is not made under any inducement, is voluntary and truthful. Whether or not these attributes of an extra-judicial confession are satisfied in a given case will, however, depend upon the facts and circumstances of each case. It is eventually the satisfaction of the court as to the reliability of the confession, keeping in view the circumstances in which the same is made, the person to whom it is alleged to have been made and the corroboration, if any, available as to the truth of such a confession that will determine whether the extrajudicial confession ought to be made a basis for holding the accused guilty." 19. The fact that the deceased was found in a corner of an abandoned house at a place shown by the Appellant to PW2 in the light of a matchstick lit by him is not in dispute. The victim was then taken to the hospital by her parents. The Police was informed by the hospital authorities after which the FIR was registered. In the facts of the case, with no intervening circumstances absence of the Merg intimation as an exhibit is not such a relevant material the absence of which may become fatal to the case of the prosecution. No prejudice has been caused to the Appellant as it is not his case that the deceased was killed in any other manner. The sequence of events culminating from the time of the child going missing to the recovery of the body, role played by the Appellant in the same, the body being taken to the Hospital, is all cohesive leaving out any doubt that the death may have taken place in any other manner committed by another. 20. The postmortem of the deceased was conducted by PW7, Dr. Smt. S. Pandey along with Dr. Pradeep Pandey. The fact that Dr. Pradeep Pandey may not have been examined, in our opinion, is not very crucial again so as to give the benefit of doubt to the Appellant because he may have been denied the opportunity to cross-examine him. 20. The postmortem of the deceased was conducted by PW7, Dr. Smt. S. Pandey along with Dr. Pradeep Pandey. The fact that Dr. Pradeep Pandey may not have been examined, in our opinion, is not very crucial again so as to give the benefit of doubt to the Appellant because he may have been denied the opportunity to cross-examine him. His opinion at Exhibit P.11 in response to the Police query with regard to gunny bag, is not substantial evidence by itself when it stands established beyond doubt from the postmortem report that the deceased was sexually assaulted and then strangulated leading to the eyes popping out, the tongue protruding and froth coming out from the nostrils. 21. The fact that no blood or semen stains may have been found on the underwear of the Appellant seized on 16.3.1998 in the forensic report leaves us unimpressed. If the occurrence had taken place on 15.3.1998 at noon and the seizure of the underwear was made on 16.3.1998 at 1.35 pm, we can legitimately presume that being an under garment, the Appellant had changed the one he was originally wearing on the next day. Absence of any injury to him on the penis when he is alleged to have sexually assaulted the minor also leaves us unimpressed. Likewise absence of smegma is but corroborative of sexual intercourse as if would take approximately twenty four hours to accumulate as noticed in State of Karnataka v. Mahabaleshwar Gourya Naik 1992 Supp (3) SCC 179 observing as follows:-- "13. ...The presence of smegma was inconsistent with a recent intercourse and that it would take about 24 hours to accumulate if the smegma is rubbed during intercourse. See Parikh's Textbook of Medical Jurisprudence and Toxicology, page 439." 21. In State of H.P. v. Gian Chand (2001)6 SCC 71 , the victim was a minor girl aged 5 years and 6 months. Considering the claim for absence of any external injuries on the body of the victim or absence of injuries on the penis of the accused, it was observed as follows : "15. ....... So is the case with the absence of external marks of violence on the body of the victim. In case of children who are incapable of offering any resistance external marks of violence may not be found (See Modi's Medical Jurisprudence, 22nd Edn. p. 502). ....... So is the case with the absence of external marks of violence on the body of the victim. In case of children who are incapable of offering any resistance external marks of violence may not be found (See Modi's Medical Jurisprudence, 22nd Edn. p. 502). It is true that marks of external injury have not been found on the person of the accused but that by itself does not negate the prosecution case. Modi has opined (See Modi, ibid, p. 509) that even in the case of a child victim being ravished by a grownup person it is not necessary that there should always be marks of injuries on the penis in such cases. Further, it is to be noted that about two days had elapsed between the time of the incident and medical examination of the accused within which time minor injuries, even if caused, might have heard." 23. We cannot loose sight of the fact that the victim was a minor child. She was waiting to flower into youth. Life was snuffed out of her due to naked lust by a person whom she trusted as known to her but who betrayed her trust. In Gian Chand (2001)6 SCC 71 (supra) it was further observed as follows : "17. In State of Punjab v. Gurmit Singh one of us, Dr. A.S. Anand, J. (As his Lordship then was) has thus spoken for the Court:-- "A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case." 24. We therefore find no reason to interfere with the conviction of the Appellant. The bail bonds of the Appellant are cancelled and he is directed to surrender forthwith and/or be taken into custody for serving out the remaining period of sentence. 25. The appeal is dismissed. Appeal Dismissed.