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2016 DIGILAW 3640 (ALL)

CHHOTEY v. STATE OF U. P.

2016-11-07

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT By the Court.—Heard Sri Gopeshwar Sahai Bisaria, learned amicus curiae for the appellant, Sri Awadhesh Narayan Mulla assisted by Mrs. Manju Thakur and Sri J.K. Upadhyay, learned AGAs for the State and perused the record of this appeal. 2. By way of instant criminal appeal, challenge has been made to the judgment and order of conviction dated 6.3.1995 passed by III-Additional Sessions Judge, Hamirpur, in Sessions Trial No. 216 of 1994 State v. Chhotey, arising out of Case Crime No. 149 of 1994, under Sections 376, 302 IPC, Police Station Maudaha, District Hamirpur whereby the appellant has been sentenced to seven years rigorous imprisonment on the first count and life imprisonment on the second count. Sentences shall run concurrently. 3. Facts as incarnated refers to the context that the first informant Ram Lal son of Mangi Basor, resident of village Chhimauli, Police Station Maudaha, District Hamirpur, lodged a written report at Police Station Maudaha on 7.5.1994 at 05:30 p.m., regarding the incident which took place around 2:00 p.m. on 7.5.1994 in some Nala near Gwarpatta, village Chhimauli. Accused-appellant Chhotey, resident of Village Chhirka, Police Station Khanna, District Hamirpur, was engaged in playing musical instruments on the occasion of marriage ceremony with the first informant who had formed a band party comprising of three persons in all and the accused-appellant was one of them. 4. On the fateful day i.e. 7.5.1994, the first informant and the accused-appellant were playing musical instruments in the marriage ceremony organized by Bhaiyadin Kewat at his home at Village Chhimauli. It was in the afternoon that the accused-appellant said to the first informant that he is going to chew betel and he went to his (informant’s) home and enticed away his grand-daughter aged 10 years from his house and took her to Nala located at western side of the village, when he was sighted by Gajodhari wife of Rajawa and others. In Nala near Gwarpatti, he committed rape upon the victim. Upon shrieks of the victim, Pooran, Ram Sanehi, Bandar, Fakkar who were grazing cattle in nearby places, reached at the spot and saw the victim lying naked and the accused-appellant was sexually assaulting her and he tried to disassociate himself from her. No sooner did the accused-appellant see these persons than he tried to flee away from the scene of occurrence. However, he was chased and caught at a short distance by them. No sooner did the accused-appellant see these persons than he tried to flee away from the scene of occurrence. However, he was chased and caught at a short distance by them. They took him to the place where the victim was lying where it transpired that the victim had expired. The accused-appellant confessed before them to have committed the offence and strangulated the victim to death. The aforesaid persons took the accused-appellant to the village. Thereafter, he was taken to the police station where the First Information Report was lodged against the accused appellant around 5:30 p.m. on 7.5.1994 at Case Crime No. 149 of 1994 under Sections 376, 302 IPC, Police Station Maudaha, District Hamirpur. Check FIR is Ext. Ka-11. 5. On the basis of the aforesaid Check FIR, relevant entries were made in General Diary at Serial No. 31 at 5:30 p.m. under aforesaid sections of IPC at aforesaid crime number, which general diary entry is Ext. Ka-12. 6. Investigation was entrusted to PW-5 who swung into action and started investigation. He recorded statement of various prosecution witnesses and statement of the accused-appellant Chhotey who was brought at the police station by the first informant and arrested. Besides he proceeded to the place of occurrence, held inquest of the deceased. Record reflects that inquest report was prepared on 7.5.1994. Its preparation commenced at 6:30 p.m. and completed at 8:00 p.m. the same day. The Investigating Officer after concurring with the opinion of inquest witnesses, prepared relevant papers Exts. Ka-2, 3, 4 and 5 for sending the dead body for post-mortem examination in order to ascertain real cause of death. The Investigating Officer also took simple and blood stained soil from the spot and prepared memo of the same Ext. Ka-7. Besides, he also took into possession underwear of the deceased from place of occurrence and prepared memo of the same Ext. Ka-8. Besides, he also completed other formalities like preparation of map of site plan of the occurrence Ext. Ka-9. After 20.5.1994, investigation was entrusted to another Inspector O.P. Singh, who in the like manner after completing formalities in this case and investigation filed charge-sheet against the accused-appellant which is Ext. Ka-10 which charge-sheet has also been proved by Sri Krishna Bali Misra PW-5. 7. Record further reveals that post-mortem examination on the cadaver of the deceased was conducted by Dr. Ka-10 which charge-sheet has also been proved by Sri Krishna Bali Misra PW-5. 7. Record further reveals that post-mortem examination on the cadaver of the deceased was conducted by Dr. P. Anand PW-4, in mortuary at Hamirpur on 8.5.1994 at 3:30 p.m. who found following ante-mortem injuries on the dody of the deceased; (1) Lacerated wound of vagina and labia majora; with perineal tear in posterior aspect 5 cm x 3 cm x cavity deep. Membranes hymen ruptured. (2) Abraded contusion on left side of neck 7 cm x 3 cm, 3 cm below and medial to left ear. Brownish parchment like skin in the groove. On being cut, ecchymose present. 8. In the opinion of the doctor, cause of death was asphyxia as a result of strangulation. Duration was stated to be 24 hours. This post-mortem examination report Ext. Ka-1 was proved by Dr. P. Anand. 9. Thereafter, the case of the accused-appellant was committed to the Court of Sessions fromwhere it was madeover for trial and disposal to the Court of the aforesaid Additional Sessions Judge, who after hearing the prosecution and accused-appellant on the point of charge, was prima facie satisfied with the case and framed charges under Sections 376, 302 IPC. Charges were framed and readover and explained to the accused-appellant who abjured charges and claimed to be tried. 10. The prosecution was asked to adduce its testimony whereupon the prosecution produced in all five witnesses. A brief sketch of the same requires mention at this stage as ut infra : 11. Ram Lal PW-1 is the first informant and he has proved lodging of the First Information Report. He is not an eye-witness of the occurrence. Bandar PW-2 and Fakkar PW-3 are the two eye-witnesses of the incident and they have described the incident in detail and about the fact that they caught the accused-appellant on the spot chasing him a few paces. Dr. P. Anand PW-4 has conducted post-mortem examination on the dead body of the deceased on 8.5.1994 and has proved the same as Ext. Ka-1. Sri Krishna Bali Mishra PW-5 is the Investigating Officer. He conducted investigation of this case from 7.5.1994 to 20.5.1994 and during this period, he held inquest of the deceased and also prepared various papers besides recording statement of various prosecution witnesses and accused-appellant Chhotey. He also prepared site plan and various memos. Ka-1. Sri Krishna Bali Mishra PW-5 is the Investigating Officer. He conducted investigation of this case from 7.5.1994 to 20.5.1994 and during this period, he held inquest of the deceased and also prepared various papers besides recording statement of various prosecution witnesses and accused-appellant Chhotey. He also prepared site plan and various memos. After 20.5.1994, the investigation was taken over by another Investigating Officer, O.P. Singh who, after completing investigation, filed charge-sheet against the accused-appellant Ext. Ka-10-which charge-sheet has been proved by this witness (PW-5). This witness also proved relevant entries made in the Check FIR Ext. Ka-11 and the concerned G.D. entry Ext. Ka-12 whereby the case was registered against the accused-appellant. 12. Evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he denied his implication in this incident and claimed to have been falsely implicated in this case on account of enmity. The defence did not lead any evidence on its turn. 13. As a sequel to it, the case was posted for extending arguments pros and cons by the parties and after vetting the case on merits, the learned trial Court returned finding of conviction against the accused-appellant and convicted him under Sections 376, 302 IPC - ut supra. 14. Consequently, this appeal. 15. It has been vigorously contended by Sri G.S. Bisaria, amicus curiae for the appellant that this is a case of blind murder. The accused-appellant has been falsely implicated in this case on account of enmity with father of the victim nurtured against the accused-appellant. In fact, no one has witnessed the incident. There is no point for the accused-appellant to commit the crime in question. A lady Gajodhary wife of Rajwa is stated to have seen the accused-appellant enticing away the victim, but she has not been produced by the prosecution before the trial Court, for the reasons best known to it. All the witnesses of fact, particularly Bandar PW-2 and Fakkar PW-3 were, at the relevant point of time, participating in the wedding feast and were taking meal. 16. Learned counsel for the accused-appellant has further stressed that inquest report does not bear on the top of it the case crime number which shows that till and upto the time of preparation of the inquest report, no First Information Report was lodged against the accused-appellant. 16. Learned counsel for the accused-appellant has further stressed that inquest report does not bear on the top of it the case crime number which shows that till and upto the time of preparation of the inquest report, no First Information Report was lodged against the accused-appellant. That way, the First Information Report is ante time. The case of the prosecution has not been proved beyond reasonable doubt and the entire prosecution story on the whole is full of doubt and infirmity. 17. While retorting to the aforesaid submissions, Sri A.N. Mulla, learned AGA has strenuously urged that it is a case where presence of the prosecution witnesses on the spot is, under circumstances, natural and their testimony is clinching, consistent and inspiring confidence. The entire episode is coherently stitched together in such a manner that any possibility of false implication of the accused-appellant in this case, per se, stands ruled out and no worthy argument has been extended on behalf of the accused-appellant as to how and why the real culprit will be spared and in place of him, the accused-appellant will be falsely implicated in this case. Learned trial Judge after considering the entire gamut of testimony on record vis-a-vis facts has justifiably returned the finding of conviction and has passed appropriate sentence against the accused-appellant. 18. We have also considered rival submissions - ut supra - of the parties. 19. After considering the rival submissions and perusing record of this case, the moot point that arises for adjudication of this appeal relates to the fact whether the prosecution has been able to prove the charges under Sections 376, 302 IPC against the accused appellant beyond reasonable doubt and the incident was in fact witnessed by Bandar PW-2 and Fakkar PW-3, respectively. 20. On the very outset, we may have a glance over contents of the First Information Report which on the face discloses fact that the incident in question took place some time in the afternoon on 7.5.1994. Prior to the incident, the accused-appellant was playing musical instruments in some marriage ceremony that was being solemnized at the house of Bhaiyadin Kewat in village Chhimauli. This music party consisted of the first informant (PW-1), accused-appellant and Ramesh who is son of brother-in-law of the first informant. 21. Prior to the incident, the accused-appellant was playing musical instruments in some marriage ceremony that was being solemnized at the house of Bhaiyadin Kewat in village Chhimauli. This music party consisted of the first informant (PW-1), accused-appellant and Ramesh who is son of brother-in-law of the first informant. 21. In the aforesaid backdrop of alleged facts, we have before us factual testimony of three prosecution witnesses of facts on various different facets of the aforesaid case. Ram Lal PW-1 has testified about particular fact that on the day of the occurrence i.e. 7.5.1994, he alongwith accused-appellant and one another Ramesh were playing their respective musical instruments in marriage ceremony at the house of Bhaiyadin Kewat in village Chhimauli. It was in the afternoon when the accused-appellant said to him that he is going to chew betel and he left the scene. Thereafter, Ram Lal PW-1 came to know about the incident through villagers and the two eye-witnesses of the occurrence namely Bandar PW-2 and Fakkar-3, respectively. 22. In this view of the matter, the presence of the accused-appellant in the village on the day of the marriage ceremony at the house of Bhaiyadin Kewat is proved to the magnitude that he was part of the band party and each member of the band party played his respective musical instruments. His departure from the house of Bhaiyadin Kewat in the afternoon is also proved. Nothing adverse has emerged from cross-examination of PW-1 which may throw any doubt on this particular aspect of this case. 23. In this context, testimony of both the so-called eye-witnesses assumes importance, for the reason that they have testified about the occurrence in unison on point of occurrence that it was around 2:00 to 2:30 p.m. when they heard shriek of the victim from the side of Nala and they rushed towards the spot where they saw the accused-appellant positioned upon the victim and the accused-appellant had tightened grip over her neck with his hand. As soon as the accused-appellant saw these witnesses, he left the victim and tried to flee away from the scene but he was chased by these witnesses upto 50-60 paces and was caught by them (PW-2 and PW-3, respectively) and by another persons. 24. As soon as the accused-appellant saw these witnesses, he left the victim and tried to flee away from the scene but he was chased by these witnesses upto 50-60 paces and was caught by them (PW-2 and PW-3, respectively) and by another persons. 24. Testimony reflects that the accused-appellant was taken to the village then to police station and report was lodged at Police Station Maudaha, District Hamirpur at 5:30 p.m. Inquest of the victim was held around 5:30 p.m. the very same day. In the opinion of inquest witnesses, it was suggested that though it is case of rape but dead body be sent for post-mortem examination in order to ascertain real cause of death. Therefore, relevant papers were prepared for sending the dead body of the deceased for post-mortem examination. The post-mortem examination on the cadaver of the deceased was conducted by Dr. P. Anand PW-4, on 8.5.1994 at 3:30 p.m. who noted that injury No. 1 is specific and sufficient to establish fact of sexual assault upon the victim. 25. Here we may refer to the specific testimony of Dr. P. Anand PW-4 that ante-mortem injuries and particularly one on the vaginal part of the victim was stated to be indicative of sexual assault, consequently asphyxia was denoted as cause of death due to strangulation. This particular testimony of doctor witness appears on page 30 of the paper-book. In the opinion of the doctor, death could have been caused around 2:00 p.m. on 7.5.1994. Dr. P. Anand has proved post-mortem examination report Ext. Ka-1. Thus, medical testimony qua testimony of witnesses of fact Bandar PW-2 and Fakkar PW-3 is consistent with version and allegations of the prosecution that offence of rape was committed by the accused-appellant upon the victim on 7.5.1994 around 2:00 to 2:30 p.m. The accused-appellant was seen by Bandar PW-2 and Fakkar PW-3 at that point of time on the spot. 26. 26. Now relevant point that engages our attention relates to specific fact whether presence of the aforesaid two eye-witnesses on the spot was not natural and they are not telling the truth and are trying to falsely implicate the accused-appellant in this case, then we find on careful perusal of entire testimony that after taking wholesome view of testimony, no reasonable or satisfactory cause has either been shown or assigned for false implication of the accused-appellant by the prosecution witnesses of fact in this case. Moreso, the first informant has no direct motive for falsely implicating the accused-appellant in the commission of such ghastly murder of his grand-daughter. No plausible reason suggested by the defence as to why the real culprit has been spared by the first informant. 27. Relevant to take note of fact that during course of the trial, point of juvenility of the appellant was agitated but this urge was found to be stale and bald by the trial Court, for the reason that no worthy document in support of claim of juvenility was ever produced so that claim of junvenility could be sustained in substance. The claim so rejected was not challenged before any appropriate forum. With that finding, it is obvious that fact of juvenility of the appellant has also been considered and rejected, out and out, by the trial Court which claim cannot be reappraised at this stage for above specific reasons. A clear reference of this fact appears in the impugned judgment of the trial Court. Thus finding of the trial Court on point of juvenility on account of being unchallenged becomes final against the appellant. 28. Coming back to the meritorial aspect of this case, as disclosed above we may obverse that in catena of cases, this Court (High Court) as well as Hon’ble Apex Court have elaborately laid down law that in cases where testimony of the prosecution witnesses appears to be clinching, inspiring confidence and consistent with the version of the prosecution case then testimony so forthcoming is to be relied and acted upon by the Courts and finding of guilt based on such testimony can be recorded. 29. Similar is position of eye-witnesses account in this case. The accused-appellant was caught on the spot while he was in the process of committing the offence. 29. Similar is position of eye-witnesses account in this case. The accused-appellant was caught on the spot while he was in the process of committing the offence. The presence of the prosecution witnesses of fact on the scene of occurrence is very natural and specific at that relevant point of time when they were grazing their cattle near the place of occurrence. As soon as they heard shriek of the victim, they rushed to the spot and then they saw the occurrence with their naked eyes and caught the accused-appellant after chasing him 50-60 paces. Nothing appears on record to show that either the first informant or prosecution witnesses were inimical or entertaining any grudge towards the accused-appellant. Moreso, there is no plausible reason or circumstance either apparent or implicit which may give credence to any theory of false implication with ulterior motive. In this way, we also notice that learned trial Judge has taken just and consistent view of testimony on record and has justifiably recorded finding of conviction and awarded appropriate sentence against the accused-appellant which judgment of conviction and imposition of sentence need not be interfered with by us in this appeal. 30. Accordingly, we uphold the judgment and order of conviction dated 6.3.1995 passed by III-Additional Sessions Judge, Hamirpur, in Sessions Trial No. 216 of 1994 State v. Chhotey, arising out of Case Crime No. 149 of 1994, under Sections 376, 302 IPC, Police Station Maudaha, District Hamirpur. 31. In the result, the instant appeal being devoid of merit is dismissed. 32. In this case, appellant Chhotey is in jail. He shall serve out the remaining sentence imposed upon him by the trial Court. 33. Let a copy of this judgment/order be certified to the Court concerned for necessary information and follow up action.