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Himachal Pradesh High Court · body

2015 DIGILAW 934 (HP)

Chetan Kumar v. State of H. P.

2015-07-23

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment Sureshwar Thakur, J. The instant appeal is directed by the accused/appellant against the impugned judgment rendered on 15.10.2013 by the learned Sessions Judge, Solan, District Solan, H.P., in Session Trial No. 11-NL/7 of 2011, whereby, the learned trial Court convicted and sentenced the accused/appellant for his having allegedly committed offences punishable under Sections 376 and 302 read with Section 34 of the IPC. 2. The brief facts of the case are that the complainant Sanarul Sheikh is resident of West Bengal. He is presently working in PNG Sarvotam Company at Baddi and is residing in a Jhuggi at Judi Kalan with his wife and daughter Sarjina Khatun. His wife is also working in a company and likewise, his daughter Sarjina Khatun was also working in a Jeep factory which manufactures Torches. On 10.2.2011, he and his wife had gone to the place of their service but their daughter did not go to work as she was not feeling well. In the evening hours, Sahib Ali and Mithu Munshi came to the complainant, Sanarul Sheikh, where he was working and they told him that his daughter Sarjina Khatun, had been seen by one Kolina with Munirul Sheikh and Chetan Kumar on which he came back to his Jhuggi and found Sarjina Khatun missing. They went in search of her, but could not find her during whole night and day. They had also gone to the rooms of Munirul Sheikh and Chetan Kumar, and they were also found missing. The said Munirul Sheikh was residing in the vicinity of the complainant in a Jhuggi, who is also hailing from West Bengal, whereas Chetan Kumar is a resident of Uttarakhand and both of them were good friends. On 11.2.2011, the police received information through telephone from some unknown person about one dead body of a girl in Balad Khad above the depot of timber and that information was reduced into writing comprised in Ex.PW15/F. On the basis of this information, the SHO, ASI Kalyan Singh, ASI Tapender Singh, HHC Jasbir Singh, C. Sher Singh, Lady constable Leela Devi went to that place in a government vehicle No. HP-12-C-5442 and information about it had also been telephonically given to Dy. Superintendent of Police and Superintendent of Police, Baddi. Superintendent of Police and Superintendent of Police, Baddi. When they reached the spot they found a dead body of a girl aged about 15 years, which was lying in half naked position near the river. The face of the dead body was towards the ground. Her salwar and underwear had been placed in between her both legs and were entangled in between her thighs and knees. Her neck had been tied with Dupatta and blood was oozing from her mouth and was also lying on the earth. HHC Jasbir Singh was sent to nearby huts to call the persons from there so as to identify the dead body. Many people came from the hut colony and Suresh Kumar from Gram Panchayat had also come there. The information about the dead body had also reached the complainant Sanarul Sheikh, on which he and Sahib Ali, had also visited the spot. The complainant, Sanarul Sheikh, identified the dead body of his daughter Sarjina Khatun, who had then recorded his statement Ex.PW1/A to the police which was reduced into writing and was attested by Inspector/SHO Hem Raj. This statement, Ex.PW1/A was sent to the police station, Barotiwala for registration of the FIR through H.C. Kuldeep Singh and on receipt of this statement Ex.PW1/A, the FIR Ex.PW7/A was registered in the police station. The police conducted the investigation into the case and during the course of investigation, lifted the blood stained earth and grass from the spot and preserved it in a plastic container and the same was packed in a piece of cloth and was sealed with six seals of seal impression “Y” and was taken into possession vide memo Ex.PW1/B in the presence of Sanaul Sheikh and Suresh Kumar. Controlled sample of soil from some distance had also been lifted and similarly, the same had also been preserved in a similar plastic container and was sealed with six seals of seal impression M and was taken into possession vide memo Ex.PW1/C in presence of witnesses. Controlled sample of soil from some distance had also been lifted and similarly, the same had also been preserved in a similar plastic container and was sealed with six seals of seal impression M and was taken into possession vide memo Ex.PW1/C in presence of witnesses. A pair of lady/s chappal was lying at a distance of about 30-=35 feet away from the dead body which were identified by the complainant Sanarul Sheikh to be of his daughter and the same were also lifted from there and were sealed in a piece of cloth with 7 seals bearing seal impression ‘R’ and were taken into possession vide memo Ex.PW1/D in the presence of witnesses. The police prepared inquest report and also took the photographs of the dead body with the digital camera. Site plan of the place from where the dead body was recovered had been prepared. The dead body was sent for postmortem examination. During the course of post mortem examination of the deceased seven injuries were found on the body of the deceased. Multiple abrasions and bruise marks were found on her face. Ligature marks extending all around the neck were found therein. Bilateral hyoid bone suffered fracture. Occurrence therein of nasal and oral bleeding was observed. Laceration in anterior part of the tongue had also been detected. Her hymen was found ruptured and vaginal tear was present at the external orifice. Heart, lungs of the deceased had been preserved in a jar. Similarly, the kidney, liver and spleen of the deceased were preserved in a separate jar and her stomach, small intestine, large intestine and uterus were preserved in a separate jar. Her pubic hair and blood sample from her heart were also been preserved. For DNA profiling samples were taken from the skull hair, lips, and skull bone of the deceased. Swabs were also taken from the posterior vaginal wall, cervical swab and from the introtitus of the deceased. All the samples were packed in a cloth and were sealed with seal impression MO CH, Nalagarh and had been handed over to the police for the purpose of chemical anaylsis. The clothes of the deceased and Dupatta had also been sealed separately and were handed over to the police. After post mortem examination, the dead body had been handed over to the complainant vide separate memo. The case property had been deposited with MHC, P.S., Barotiwala. The clothes of the deceased and Dupatta had also been sealed separately and were handed over to the police. After post mortem examination, the dead body had been handed over to the complainant vide separate memo. The case property had been deposited with MHC, P.S., Barotiwala. The search for the accused also started. Accused Chetan Kumar was residing in the house of Mahinder Singh, therefore, the said house and the room in which accused Chetan Kumar was residing was searched by the police in the presence of Mahinder Singh and Sahib Ali but the accused Chetan Kumar was found missing and from his room an identity card and a registration letter had been recovered which were taken into possession by the police vide separate memo in presence of the witnesses. 3. During the course of the investigation, it had been found that on 10.2.2011, accused Munirul Sheikh had taken Sarjina Khatun to the room of accused Chetan Kumar. They stayed there for 30 minutes and went away. Accused Chetan Kumar had also followed them and after the occurrence they had run away from Judi-Kalan. Many attempts were made by the police for their search but accused Munirul Sheikh could not be found anywhere. He could not even be found in his home State West Bengal but accused Chetan Kumar had been found in his home town Rampur and was brought to police station, Barotiwala on 10.03.2011 for interrogation and was accordingly arrested. During the course of his interrogation, he had made disclosure statement Ex.PW4/A to the police in the presence of Shri Achhar Pal Kaushal, Pradhan, Gram Panchayat, Batauli Kalan and ASI Kalyan Singh to the effect that he could show and identify the place where the dead body of Sarjina Khatun had been thrown and on the basis of this statement, he led the police to the place in Balad Khad near Timber Depot and shown the place where he had thrown the dead body of Sarjina Khatun and to this effect the police prepared the identification memo in the presence of witnesses Achhar Pal Kaushal and Suresh Kumar and also prepared the site Plan Ex.PW15/E. It was the same place from where the dead body had been recovered as reflected in the earlier site plan Ex.PW15/B. The accused Chetan Kumar was got medically examined from Dr. Rajinder Kumar and he was found capable of doing sexual intercourse. Rajinder Kumar and he was found capable of doing sexual intercourse. His pubic hair, semen and blood samples had been preserved for the purpose of DNA profiling and his underwear had also been sealed separately and were handed over to the police and same had been deposited by the police with MHC, P.S., Barotiwala. The different case properties deposited with MHC were sent by him to FSL Junga for chemical analysis vide road certificates through constables Chander Shekhar and Balvinder Singh, who deposited these articles with FSL, Junga in the same condition in which they were handed over to them. FSL, Junga had sent the reports Ex.PW10/B to Ex.PW10/H and Ex.PW10/J. The reports of the FSL, Junga were shown to the doctor, who had conducted postmortem of the deceased and then the doctor had given final opinion that human blood and semen had been detected on vaginal swab of Sarjina Khatun and that she was subjected to sexual intercourse before her death. The cause of death was opined to be asphyxia owing to hanging and duration between the injury and death being immediately within few minutes and between death and post mortem the duration being 12 to 48 hours. 4. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court against accused Chetan Kumar only since other co-accused Munirul Sheikh could not be arrested despite best efforts put in by the police and he stood declared as proclaimed offender. 5. Accused/appellant Chetan Kumar was charged for his having committed offences punishable under Sections 376, 302 read with Section 34 of the IPC by the learned trial Court to which he pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution examined 20 witnesses. On closure of the prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and in defence examined one witness. 7. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 8. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. 7. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 8. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned counsel appearing for the appellant has concertedly and vigorously contended that the findings of conviction recorded by the learned trial Court are not based on a proper appreciation of evidence on record, rather, they are sequelled by gross misappreciation of material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 9. On the other hand, the learned Assistant Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the learned Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 10. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 11. Both, accused/appellant Chetan Kumar and accused Munirul Sheikh, were good friends. Accused Chetan Kumar faced trial for his having committed offences punishable under Sections 376, 302 read with Section 34 of the IPC. He stood convicted and sentenced by the learned trial Court. However, co-accused Munirul Sheikh remained under absconsion throughout the period accused Chetan Kumar faced trial. A complaint qua the factum of minor Sarjina Khatun having been subjected to forcible sexual intercourse by both the accused and thereafter hers having come to be put to death by hanging, was lodged by PW-1 Shri Sanarul Sheikh, the father of the deceased Sarjina Khatun. The entire edifice of the prosecution case rests upon circumstantial evidence, hence, entailing the prosecution to prove each of the links in the chain of circumstances. The primary link in the entire chain of circumstances against the accused is harboured upon the motive of both the accused. The motive of both the accused is founded upon theirs having enticed or allured deceased minor Sarjina Khatun with the motive of subjecting her to forcible sexual intercourse. The factum of both having subjected the deceased minor Sarjina Khatun to forcible sexual intercourse stands proved by the testimonies of PW-10 Dr.Jyotsna Gupta and PW-11 Dr. The motive of both the accused is founded upon theirs having enticed or allured deceased minor Sarjina Khatun with the motive of subjecting her to forcible sexual intercourse. The factum of both having subjected the deceased minor Sarjina Khatun to forcible sexual intercourse stands proved by the testimonies of PW-10 Dr.Jyotsna Gupta and PW-11 Dr. Gagan Jain, who proved postmortem report Ex.PW10/A. They while having conducted the post mortem examination on the body of deceased minor Sarjina Khatun on consummation whereto they prepared Ex.PW10/A, have enunciated therein the factum of occurrence of vaginal injuries on the body of deceased subjected to postmortem besides, they have spelt out in Ex.PW10/A, the factum of the hymen of the deceased minor Sarjina Khatun having stood ruptured as also have pronounced therein the factum of existence of vaginal tear at the external orifice. Moreover, they during the course of their examinations-in-chief have deposed that after receiving the report from the FSL and its unveiling the factum that human blood and semen was detected on exhibit-10 (vaginal swabs of deceased minor Sarjina Khatun), they hence were prodded to conclude that sexual intercourse had taken place. Now, when apart from the factum of formidable opinion having been recorded in Ex.PW10/A qua the deceased having been subjected to forcible sexual intercourse, both PW-10 and PW-11 in Ex.PW10/A have, recorded therein the existence of the following injuries on her person:- “1. Bruises and abrasions present on the back of both the shoulders and lumbar region. 2. Dark brown coloured grazed abrasions present on the scapular area of the back. 3. Multiple linear abrasions on the back of left upper thigh. 4. Anteriorly bruises present on the right shoulder. 5. Multiple bruise marks and abrasions on both arms. 6. A single dark brown bruise on the right ingunal region. 7. Bruises also present on the areola of the left nipple (Breast) Face Injury:- Multiple abrasions and bruise marks on the face. Neck Injuries:- Ligature mark extending all around the neck. Bilateral hyoid bone fracture. Nasal and Oral bleed. Tongue protrusion. Laceration in anterior apart of the tongue.” They have deposed that ligature mark was found all around the neck with bilateral hyoid bone fracture. In sequel they have deposed that the cause of demise of deceased minor Sarjina Khatun was asphyxia owing to hanging. Bilateral hyoid bone fracture. Nasal and Oral bleed. Tongue protrusion. Laceration in anterior apart of the tongue.” They have deposed that ligature mark was found all around the neck with bilateral hyoid bone fracture. In sequel they have deposed that the cause of demise of deceased minor Sarjina Khatun was asphyxia owing to hanging. The opinion of PW-10 and PW-11 qua the deceased minor having been subjected to forcible sexual inter course besides, thereafter hers having come to be hanged leading to asphyxia has not been shred apart by the defence counsel on his subjecting these witnesses to cross-examination. In sequel, the opinion rendered by PW-10 and PW-11 qua the cause of demise of minor Sarjina Khatun acquires force and vigour. Dupatta, Ex.PW10/5 was tied by the accused around the neck of the deceased minor Sarjina Khatun for hers being hanged with it. Ex.PW10/B, records the fact that the Dupatta used by the accused to hang the deceased minor Sarjina Khatun would beget the ligature marks as found occurring, as spelt out in Ex.PW10/A, all around the neck of the deceased besides, would beget the fracture of her hyoid bone sequelling asphyxia which led to her demise. Besides, with Ex.PW10/B pronouncing the fact that the weight bearing capacity of Dupatta Ex.PW10/5 is 100 kg, consequently, it can be formidably concluded that hence it was the item or the material used by both the accused to hang the deceased minor Sarjina Khatun sequelling asphyxia which begot her demise. 12. The further link evidence which connects the accused/appellant in the commission of the offence for which he stood charged and tried by the learned trial Court, is constituted or comprised in the report of FSL Ex.PW10/F whereunder the Assistant Director, DNA Division, State Forensic Science Laboratory, Junga on analyzing/comparing the blood existing on the clothes {P-12a (shirt) and P1-12b (salwar)} of the deceased with the blood sample of accused Chetan Kumar (Ex.P-3) also sent for analysis to it, has recorded therein a formidable and conclusive opinion that blood stains or smears of blood existing on the clothes of the deceased i.e. shirt and salwar of the deceased belong to the accused. The aforesaid opinion of the FSL comprised in Ex.PW10/F accentuates an inference that the accused was hence last in the company of the deceased especially when the blood stains or blood smears found on the clothes of the deceased which she was last wearing at the time of occurrence, on comparison with the blood sample of accused Chetan Kumar has been opined by the Assistant Director, DNA Division, FSL, Junga to be belonging to the accused Chetan Kumar. The evidence conveying the aforesaid factum constituted in Ex.PW10/F comprises proof of a formidable or potent link in the chain of circumstances for concluding that hence the deceased minor Sarjina Khatun as portrayed by the depositions of PW-10 Dr. Jyotsna Gupta and PW-11 Dr. Gagan Jain, was subjected by the accused to forcible sexual intercourse besides, hanged with Dupatta Ex.PW10/5 begetting asphyxia sequelling her demise. 13. The factum of both the accused having been last seen in the company of deceased Sarjina Khatun for empowering this Court to conclude that the aforesaid factum while comprising also an important link in the chain of circumstances for fostering a deduction that hence the guilt of the accused stands unflinchingly substantiated, is embedded in the testimony of PW-18 Kumari Kolina. She in her deposition recorded on oath is firm and categorical that in the morning of 10.02.2011, she had seen both the accused in the company of deceased minor Sarjina Khatun while they were proceeding towards Wooden bridge. She has continued to depose that when in the afternoon she had gone to bring rice from the shop then accused Chetan met her on the way and when she enquired from him as to where coaccused and Sarjina Khatun were, the accused responded by saying that she had nothing to do with them. She has also deposed that accused Chetan had threatened to kill her, in case, she discloses it to any other person. Furthermore, she has also deposed that Sahib and Mithu met her while they were sitting in a tea shop when she was returning home and she narrated the entire incident to them, whereafter both of them went to the father of Sarjina Khatun and apprised him. Furthermore, she has also deposed that Sahib and Mithu met her while they were sitting in a tea shop when she was returning home and she narrated the entire incident to them, whereafter both of them went to the father of Sarjina Khatun and apprised him. The deposition of PW-18 stands corroborated by the deposition of PW-19 qua the factum of hers having disclosed to him and Sahib the fact of hers having last seen the deceased in the company of the accused. The depositions of both the aforesaid prosecution witnesses do not portray that they bear any animosity towards the accused for hence being constrained to depose against them besides, when their depositions portray a ring of naturalness, obviously then credibility is to be imputed to their testimonies. Moreover, when their testimonies have remained unshred during the course of their exacting cross-examination by the defence counsel, consequently, they reinforcingly acquired a hue of truth or veracity. In aftermath, the factum of the deceased minor Sarjina Khatun having been last seen in the company of the accused stand fortifyingly substantiated. On substantiation of the factum of the accused having been last seen in the company of the deceased, a crucial and formidable link in the chain of circumstances when hence stands convincingly proved by potent evidence necessarily then it is an invincible pointer towards the guilt of the accused. 14. Preponderantly, the accused/appellant during his interrogation recorded a disclosure statement comprised in Ex.PW4/A in presence of PW-4 Achhar Pal Kaushal, Pradhan, Gram Panchayat, Bhatoli Kalan, and ASI Kalyan Singh qua the place where the dead body of deceased minor Sarjina Khatun had been thrown by him. 14. Preponderantly, the accused/appellant during his interrogation recorded a disclosure statement comprised in Ex.PW4/A in presence of PW-4 Achhar Pal Kaushal, Pradhan, Gram Panchayat, Bhatoli Kalan, and ASI Kalyan Singh qua the place where the dead body of deceased minor Sarjina Khatun had been thrown by him. The witnesses to the disclosure statement of accused Chetan Kumar, comprised in Ex.PW4/A, wherein he unveiled his knowledge qua the place where the dead body of the deceased had been thrown by him, in their depositions recorded on oath have proved the factum of the disclosure statement of the accused comprised in Ex.PW4/A having been volitionally made by him besides when thereto the accused led the police accompanied by PW-4 Achhar Pal Kaushal, in consonance with the recitals in the disclosure statement comprised in Ex.PW4/A, to the place where the dead body of the deceased minor Sarjina Khatun was thrown by him, qua which memo Ex.PW2/A was prepared, underscores the fact that the accused hence was in the know of the place where he had thrown the dead body of the deceased after perpetration of forcible sexual intercourse upon her, whereafter, he by hanging her with Duptatta murdered her. In sequel, when the accused was in the know of the place where he had thrown the body of the deceased constituted by the factum of his having unveiled in his disclosure statement comprised in Ex.PW4/A its location, in pursuance whereto he led the police and PW-4 to the place where he had thrown the dead body of the deceased and its sequelling the preparation of Ex.PW2/A, foments an obvious conclusion that the dead body of Sarjina Khatun was hence dispensed with by the accused at the location denoted in Ex.PW2/A. As a natural corollary then it has to be concluded with aplomb that the aforesaid proof fillips an inference of the accused having committed the offences for which he stood charged, tried and convicted by the learned trial Court. 15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom the analysis of material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 16. 16. Hence, the appeal is dismissed and the impugned judgment of the learned trial Court is affirmed and maintained. Records be sent back.