Allahabad High Court
Raju Alias Rajaram Son Of Sri Mukundi Lal ... vs State Of U.P. on 21 November, 2007
Author: Amar Saran
Bench: Imtiyaz Murtaza, Amar Saran
JUDGMENT Amar Saran, J.
1. Capital Criminal Jail Appeal No. 813 of 2006 has been preferred by the appellant Raju alias Raja Ram against the sentence of death under Section 302 IPC awarded by the Additional Sessions Judge, Court No. 1, district Mahoba, by his order dated 13.1.2006. As a death sentence was awarded in this case a Criminal Reference No. 2 of 2006 has also been submitted to the High Court for confirmation of the sentence under Section 366 of the Code of Criminal Procedure. As an application under Section 391 read with 367 of the Code of Criminal Procedure has also been moved on behalf of the appellant by Sri L.K. Pandey, Advocate on 16.11.2006 for summoning the general diary of police station Mahobkanth, district Mahoba. pertaining to the period from 22.11.2004 to 28.11.2004 and injury report of the appellant who was examined by the doctor in jail on 26.11.2004, 27.11.2004, 28.11.2004 and the mulahija register from District Jail, Mahoba, in respect of which we had reserved orders, the same shall also be disposed of by the present judgement.
2. Heard Sri K.P. Pathak, Sri L.C. Pandey and Sri Manoj Gautam for the appellant and Sri R.K. Singh and Sri A.K. Singh, learned A.G.A. for the State. The prosecution allegations were that on 22.1 1.2004 at about 5 p.m. Km. Dropadi aged about 10 years, niece of the informant Ram Pal had left her house to fetch some sugarcane for Puja (prayers). which was to be performed in her home. When the informant's brother Thakur Das returned from his field, his wife disclosed that Dropadi had gone to fetch sugarcane and had not returned, although it had become dark. Then Thakur Das and the informant went out to search for Dropadi. One Khiladi Pal told them that Dropadi had come to the Athai (village platform) at about 6 p.m., when the appellant, who was standing nearby, told her that she should follow him and he would get her some sugarcane. Then Dropadi left with Raju, the appellant. The informant and his brother kept searching for Dropadi and Raju, but they were unsuccessful. They even looked for Dropadi and Raju among their relations and among the relations of Raju.
3. On 25.11.2004 the Station Master of Railway Station Ghutai Sri Cailuram Gupta and Ramkishun Patel informed them that they had met Raju Kachhi. the appellant, who had told them that he had to go to Delhi. On 26.1 1.2004 at about 9 a.m. when the informant and his relations accompanied by the villagers of his village viz. Murlidhar. Ramlal, Ramsanehi, Raju son of Babulal Tiwari, Bhaarat Singh. Bharat Lal, Jaichandra Shivdayal, Arvind, Jairam and Ram Sahai were searching for his niece and reached near the railway line of Ghutai railway station, they were informed by Ganeshi Nai of village Pipan that Raju alias Raja Ram was standing near the railway quarters. Thereupon, the aforesaid team of persons went towards the railway quarters. As they did not find Raju there, they started walking along the railway line towards the bridge where they saw Raju standing by the river. He began to run on seeing these persons but they apprehended him at about 10 a.m., after administering a beating to him. When the informant and the villagers inquired about Dropadi, lie was initially silent, but when he was given a beating, then Raju revealed that he had hidden the dead body of Dropadi in the Arhar field near the railway station and that he was regretting his mistake. He admitted to having committed rape on the girl and to have murdered her and admitted hiding her dead body. On the direction of the appellant Raju Kachhi, a search party reached near the thickly grown Arhar field of Tai Rajput, where Raju pointed out the dead body of Dropadi, which was lying in a naked condition. The informant and other villagers then apprehended Raju and brought him to the railway station leaving some persons to keep watch over the dead body. The informant thereafter proceeded to lodge the report scribed by Bhaarat Singh Tomar at P.S. Mahobkanth at 1.15 p.m. on 26.11.2004. The report was registered at case crime No. 480 of 2004 under Section 376, 302, 363 IPC. The prosecution has examined Ram Pal, the informant as P.W.I, who has reiterated the version mentioned in his F.I.R., in his examination in chief about the disappearance, search for Dropadi. The apprehension of the appellant, and the lodging of the report etc.
4. He further mentions that the appellant Raju belonged to village Ghurahat, but he was staying in the village with his Bua (aunt), as he was involved in some murder in village Ghurahat. It is admitted in cross examination that the bua and phoopha of Raju are related to the informant, and the appellant Raju and his father used to work as labourers in Delhi. At the time of incident however, he was residing in the village, The informant further admits that on the 23rd he had gone to lodge the report, then the police apprehended Rajus father and kept him in the lock up for 4 or 5 days. He however denies that Raju had come from Delhi to get his father released. He could not say as to whose field Dropadi had gone to bring sugarcane but she had informed her mother that she was going to fetch sugarcane. At about 5 p.m. she had gone to the public square of the village (Athai) to fetch sugarcane After searching for Dropadi in the entire village and all the houses, the seach party had gone to the haar to look for her. Even the next morning about 8-10 persons were searching for Dropadi. His three brothers had searched for Dropadi among their relations and the younger brother Harnarain had gone to Ghutai to search for Dropadi. The appellant was missing from the village for 4 days. It was denied that the appellant was mentally unsound. He also denies that the appellant or his father had wrongly taken possession of his house and hence he had falsely implicated them. He admits that Raju was first caught hold of by the villagers who were accompanying him. First Ramsanehi caught hold of Raju. Raju tried to bite him. but he was given two slaps by the villagers Ramsanehi and Bharat Lal. The appellant was also tied up with a towel. Ramsanehi had not received any injury, as a result of the bite. The informant claims to have written the report at the railway station with a pen carried by Bhaarat Singh and paper provided by the Station Master Lallu Babu and they had then taken appellant along with the written report to the Police Station. A number of villagers Ramsanehi, Bharat Lal, Bhaarat Singh. Shivdayal, Jaichandra, Raju Tiwari, Arvind, Ram Sahai, Ramlal etc., accompanied him to the Police Station. The police went to the place, where the dead body was recovered on 26th at about 2 p.m. Before that the villagers had gathered there. The dead body was picked up from near the railway line, and was brought to the Police Station, sealed there and sent to the hospital for post mortem.
5. P.W. 2 Khilari claims to have known the appellant from the 'previous two years, as he was residing with his aunt (bua). On 22.11.2004 at about 6 p.m. he was present at the Athai in front of Surendra Patel's house, the appellant was talking to the deceased Dropadi there and telling her that she could come with him and he would get her the sugarcane that she wanted. Then Dropadi went along with appellant Raju in the direction of the fields. At about 7 or 8 p.m. on the same night, Dropadi's father Takur Das and uncle came to the Athai, who were told by this witness that Raju had taken Dropadi away to get her some sugarcane in the direction of the fields. At that time Dropadi was aged 10 years. Later he came to learn that Raju had committed Dropadi's murder after committing rape on her. Raju was also involved in some murder of a thakur of his previous village Ghurhat. For that reason, he was staying with his bua and phoopha in the village of incident. In his cross examination, this witness denied being friendly to the thakurs, who were inimical to the appellant and to have falsely implicated him on that account. Only Raju was standing near him at the Athai and being "ekadashj" the ladies were taking religious rounds of the temple after their kartik bath. He did not notice whether the women, who were doing rounds of the temple, saw Raju talking to Dropadi. Me admitted that in the village sugarcane was grown at 2 or 4 places. The said fields were about 1 km. from the village. He did not stop Raju and Dropadi from going away. On the 4th day, which was Kartik Poornima, he learnt about the death of the deceased Dropadi. He denied that the appellant Raju or his father had illegally taken possession of Ram Pal's house. He had no information whether Ram Pal moved any application for getting the house vacated from Raju or his father. After disappearance of Dropadi, he did not see Raja Ram's father or mother in the village.
6. P.W. 3 Bharatlal had deposed that Raju belonged to village Ghurahat, but he had been staying with his bua and phoopha in village Ghutai, because he had committed some murder in his own village. Raju had taken away the 10 year old girl Dropadi, daughter of Thakur Das with him, who belonged to Ghutai. The dead body of the girl was found on 26.1 1.2004 in an Arhar field near the railway station, belonging to Tai Lodhi Rajoli wale. On 26.11.2004 at about 9 a.m., this witness along with the informant Ram Pal and other villagers were going to search for Dropadi and Raju alias Raja Ram. On the way Ganeshi Nai of Pipari met them. He informed them that Raju was standing near the railway quarters of village Ghutai, but when they reached that spot, they did not find Raju present there, hence they walked by the side of the railway line in the direction of village Dulara. When they reached the railway crossing near the bridge by the side of a drain, they saw Raju, who started running on seeing these persons. However they surrounded Raju and caught hold of him. When they caught hold of Raju, he disclosed that he had committed rape on Dropadi in the Arhar field near the railway station and then murdered her. He had hidden the dead body in the Arhar field. That year the Arhar crop was 5 or 6 feet high and it was very thick. Then Raju proceeded ahead and these persons followed him to the field of "Tai Lodhi of Rajoli wale". In the southern side of the field Raju pointed out the dead body of the deceased. These witnesses left some persons with the dead body and these witness Bharatlal, Bhaarat Singh, Ram Pal and others took Raju alias Raja Ram to the Police Station Mahobkanth. where Ram Pal handed over a report, which he had got written outside. The report was scribed by Bhaarat Singh resident of village Ghutai. On the basis of the report a case was registered against Rata Ram. He had no enmity with Raju alias Raja Ram. The house where Raju alias Raja Ram appellant resided was 15-20 houses away from this witness's house. Ram Pal himself had gone to Bharatlal's house to call him to search for Dropadi. All the persons had come together to call him. Then they proceeded towards the Station. They were looking for Raja Ram because they had learnt that Raja Ram had taken away Dropadi. Raju was standing in the field, which was 1 or 2 fields away from the railway bridge. Each of the fields was at least about 100 feet long. First Bharat Singh and Ram Pal caught hold of the accused. After the appellant started running on seeing the witnesses, Raja Ram was given one or two slaps when he tried to bite his captors. Ram Pal and Bharat Singh gave Raju one or two slaps. This witness Bharatlal, Bhaarat Singh and Ram Pal tied Raju's hand with a towel. At that time Raju was wearing a shirt and a blue pant. The clothes of Dropadi were not lying near the dead body and she was absolutely naked. Dropadi's body was lying at the place where there was blood. They did not ask the accused how many days earlier he had killed Dropadi. The accused replied that the girl had died as a result of rape on her. They went to Police Station on a tractor. He did not know who was the owner of the he tractor. At the Police Station they met the Munshi and Daroga, and they handed over the appellant to them. When the Investigating Officer asked them to give a report, they came out, obtained paper from a shop, wrote the report on it. and then returned to the Police Station. After registering the case, the police proceeded to the spot and they sealed the dead body and thereafter sent it for postmortem. These witnesses had gone with the deceased girl for getting the post mortem done at Mahoba. They did not take the dead body to the Police Station. They brought the dead body to Mahobakanth on a jugar vehicle. From Mahobakanth they took the dead body on a jeep to Mahoba. When they reached the Police Station, the father of Raja Ram was not in custody. The place where the dead body was found fell in the jurisdiction of another village. He denied that there was any dispute between Rajaram and Rampal over a house. He was the village Pradhan. He denied that the informant was of his party. The informant stated that in fact he had contested elections against him. He denied that he had made Rampal contest to divide the vote only for winning the elections or that he was deposing falsely at the instance of Rampal. He denied that Rajaram was not arrested or that nothing was recovered in his presence.
7. P.W. 4 Bhaarat Singh has deposed that the appellant was resident of village Ghurhat, and was residing with his aunt and uncle, because he was involved in some murder of a Thakur of his village. Raju had taken away Dropadi along with him on 22.1 1.2004 which was 10 months prior to the deposition. Dropadi was the niece of Rampal Kachhi. On 26.11.2004 he was sitting with a resident of his village Bharatlal Pradhan that Dropadi's uncle Rampal and his relations Ramsanehi, Jairam, Ram Sahai, Jaichandra and Arvind arrived there and requested them to search for his niece, who was missing. Then this team proceeded in the direction of the railway station to trace out Dropadi and Raju. Near the Railway Station they met Ganeshi Nai of village Pipari. He disclosed that Raju had been standing near the railway quarters. They reached there, but Raju was not found. They started walking to the side of the railway line towards village Dulara. On the railway bridge of the river they saw Raju standing at the side of river. He started running on seeing the witnesses, but he was surrounded and caught hold of. On being apprehended he confessed that he had raped Dropadi and committed the murder. Then he disclosed that the dead body was lying near the Station in the Arhar field of Tai Lodhi. Raju was pleading for forgiveness. He proceeded ahead and took them to the southern merh of the field where the dead body of Dropadi was lying. Raju disclosed that this was Dropadi's dead body. After leaving 4-5 persons near the dead body, they came to the Railway Station along with Raju alias Rajaram. There he scribed the report, on the dictation of Rampal Kachhi. He read over the report to Rampal, wherein Rampal appended his signature. A number of villagers had accompanied Raju after he was caught to the police station where he taken in custody. Rampal handed over the written report. The informant had come to the village from the police station along with other villagers and the Investigating Officer had come to the village and recorded his statement. His house was adjoining the house of Rampal. At the house of Bharatlal, this witness Bhaarat Singh, Ramsanehi and the brother of Bharatlal were sitting where Rampal had come to call him. They all proceeded empty handed. They went towards the Railway Station. Rampal had told them that he had searched everywhere. The party did not search all over the village, Rampal disclosed that on 26th the Station Master Babu Lalluram Gupta and Ramkishun Patel had told them that Raju had been seen standing near the railway line. He did not disclose this fact to the Investigating Officer. Ganeshi met them about 20-25 metres before the Station. They met the accused on the railway bridge over the Bogi nadi. Raju started running on seeing them towards Pipari village. The accused had run 3 or 4 furlongs, when he was apprehended by Ramsanehi and Shivdayal first. When the appellant tried to bite them, then they had given him 2 or 3 slaps. Ramsanehi and Shivdayal had slapped him and tied his hands behind his back. Jaichandra tied his hand behind his back. All the persons did not assault him.
8. Blood was lying near the dead body, which was naked. No clothes of the deceased were found near the body. When Raju was asked how the girl Dropadi had died, he replied that she died as a result of rape committed by him. They went to the police station on a tractor where a disclosure was made about the fact and the report was given to the Investigating Officer by Rampal. The report was scribed by this witness at the railway station. He denied that he scribed the report outside the station. He denied that there was any tenancy dispute between Rampal and Rajaram. By the time the witness returned from the police station, the police had already reached the spot and was conducting the inquest and had practically completed the inquest by then and the signatures of the witnesses had been taken. They saw injuries on the body of the deceased. The body was carried to Mahobkanth on a jugar vehicle and it was taken to Mahoba on a jeep. The uncle (mama) and the informant had gone with the dead body to Mahoba. Apart from the two none else had gone to Mahoba. He denied having falsely implicated the accused because he was partisan to Rampal. Apart from the aforesaid four witnesses of fact, six others witnesses have been examined.
9. P.W. 5 Constable Muharrir Ram Milan Sing, who prepared the chik F.I.R. and G.D. (Ext. Ka-3) on 1.15 p.m. on 26.11.2004 at Police station Mahobkanth. He denied having lodged a false report in collusion with the informant. P.W. 6 Constable Kamlakant states that the inquest on the body of the deceased Dropadi was filled in by H.C.P. Badri Prasad. He along with Subrati carried the dead body along with the police papers, challan nash, photo nash, letter for R.I., letter for C.M.O. and deposited the same at the mortuary at the time of postmortem. After postmortem he deposited the papers at the police station. The body was taken to Mahoba straight way and not taken to police station. P.W. 7 Zameerul Hasan was S.O., Police station Pan wan. On the date of incident, as the S.O. of P.S. Mahobkanth was on leave, hence the CO. Kulpahar directed him to proceed to the place of incident and to commence investigation. He entered nakal chik, naked rapat in the case diary and recorded the statement of the informant Rampal at the spot. On the pointing out of the informant, he inspected the spot and prepared the site plan (Ext. ka-4). He also recorded the statements of the witnesses Laxmiraj, Lekhraj and the accused Raju alias Rajaram. He also recorded the statement of the writer of the chik report Constable Ram Milan Singh on 28.11.2004. He copied out the postmortem in the case diary. On 2.12.2004 the investigation was transferred to A.K. Singh, S.O., P.S. Mahobkanth. The arhar crop in the field in which the dead body was lying was four feet high. The accused had been caught hold by the public and he had no knowledge that the accused had any injury. If there were any injury on the accused, it would have been in the G.D. He had reached the place of incident 3.15 p.m. on 26.11.2004. He received nakal chik, nakal rapat through Constable Ramesh Chandra at the place of incident. P.W. 8 S.I. Badri Prasad Tiwari, who was posted as S.I., P.S. Mahobkanth on 26.11.2004. He conducted the inquest on the dead body of Dropadi, aged 10 years, daughter of Thakur Das Kushwaha. resident of village Ghutai, at the place of incident, i.e. in the arhar field of Tai Kachhi falling in the boundary of village Rajauni, Police Station Mahobkath. The body was lying in a naked condition. He made Laxmiram, Shakar Lekhraj, Mohan Lal and Deep Chandra, who were present at the spot as witnesses of inquest. Lie handed over the dead body to Constable Kamlakant Pathak and Home guard Subrati for postmortem. The inquest paper was marked as (Ext. Ka-5). He prepared photo lash, letter for C.M.O., letter for R.I., which was marked as (Ext. Ka-7 to Ka-9). He left the police station at about 2 p.m. for the place of incident, where he arrived prior to any other police personnel. At that time 30-40 persons were present there. He denied that there was any overwriting where 2.50 was scribed in the inquest and claims that the ink had sprayed. He also found that the Arhar crops at the place where the dead body was lying were about 4 or 5 feet high. He did not find blood near the dead body, but he saw the dead body and there was blood on its private parts. He had described the injury on the dead body in the panchaxat nama. He had seen blood on the mouth of the deceased. He could not see whether the blood would have fallen on the ground. He reached the spot at about 2.50 p.m. One hour thereafter the I.O. reached there. Constable Kamlakant, Constable Naval and Home guard Sukhrati had accompanied him. There were other police personnel with the I.O., but their names he did not remember. Even the CO. had come. He denied that he had completed the inquest proceedings and prepared the connected papers in the police station. The corpse was carried on a jeep to the police headquarters directly from the place of incident, whereas the I.O. returned with him to the police station. From two days prior to the incident, the S.O. was on leave and returned only two days after the incident. By seeing the dead body it did not appear that the murder had been committed elsewhere and body had been thrown there.
10. P.W. 9 S.I. A.K. Singh was the S.O. of P.S. Mahobkanth on 3.12.2004. On orders of the CO. Kulpahar, the investigation was transferred to him from S.O. Police Station Panwari. On 4.12.2004 he recorded the statement of witness Khilaripal. He prepared the site plan of the place of incident on 4.12.2004 (Ext. Ka-10). On 9.12.2004 he sent the case property to the Legal Scientific Laboratory. Agra. On 12.12.2004 he recorded the 161 Cr.P.C. statements of the witnesses of Panchayatnama Shankar, Mohal Lai, Deepchandra, scribe of F.I.R. Bharat Singh, Bharat Lal, Jai Chandra, Shiv Lal, Arvind, Jairam, Ram Sahai, Ram Lal and Murlidhar. On 14.12.2004 he recorded the statements of Lallu Ram Gupta and Ganeshi Nai. Thereafter on being satisfied that a case was made out, he submitted a charge sheet under Sections 363, 376 and 302 IPC bearing charge sheet No. 57/2004 in Court (Ext. ka-11). He denied having locked up Mukundi, father of the accused Rajaram in the police station from before the incident. According to him, the witness did not disclose that the ladies, who were to take the bath of Kartik Purnima, were present at the spot, and were taking rounds of the temple. Me did not recollect that there was any temple near the place where the girl is said to have been abducted. He mentioned the relevant material in the site plan, but did not mention the well, temple etc. there, as it was not necessary. As the witness Khilari disclosed where Dropadi was standing it was indicated in the site plan, but as he had not divulged the place where he was sitting, it was not shown in the site plan. He claimed to have recorded the statement of Khilari in the village, but failed to recollect in whose house he had recorded the statement. During investigation he had no knowledge that the accused was working as a labourer in Delhi. He has not recorded the complete statements of thewitnesses Jai Chandra, Shiv Dayal, Arvind, Bharat, Ram Lal and Ram Sahai etc., but only mentioned that they supported the statements of Bharat Lal and Bharat Singh. He denied not having recorded the statements of the aforesaid witnesses, or that the charge sheet was submitted on the basis of wrong facts. P.W. 10 Dr. C.S. Gautam was posted as Medical Officer in District Hospital, Mahoba on 27.11.2004. He conducted the postmortem on the dead body of Dropadi, aged 10 years on 2.10 p.m. The body bore the following injuries:
(1) Contusion 8 cm x 2 cm on nose and right eye.
(2) Abraded contusion 17 cm x 15 cm on right side of chest 7 cm below the right clavicle.
(3) Abrasion 10 cm x 4 cm on right side of abdomen 4 cm above the anterior superior iliac spine.
(4) Abrasion 10 cm x 6 cm on outer middle part of right gluteal rigion.
(5) Abrasion 10 cm x 6 cm on anterior aspect of right knee.
(6) Abraded contusion 13 cm x 7 cm on anterior aspect of left knee.
(7) Contusion 15 cm x II cm on outer aspect of left thigh just below the left hip joint.
(8) Abrasion 5 cm x 5 cm on left side of abdomen just above the left iliac crest (9) Abrasion 15 cm x 14 cm on back of abdomen just above the iliac crests.
(10) Vaginal tear 2 cm x 1 cm x whole vaginal length posteriorly.
The vagina was ruptured in upper part just behind the cervix 3.5 cm x 3 cm in size. The cause of death was shock and haemorrhage due to ante mortem injuries. The vaginal smears and a swab were prepared and handed over for the(sic) Three long loose hairs found over the perineum and upper part of left thigh were preserved. The body was average built, eyes were closed and mouth was semi-open. Blood stained discharge was seen from the nostrils and mouth. Marbling was present on upper part of chest Maggots were present at nostrils and mouth, rigor mortis had passed off. The abdomen was distended with gases and greenish discolouration was present on right side of lower part of abdomen; face and genitalia were swollen up. According to the Doctor the cause of death were the injuries received by the girl during the course of rape committed on her. The time of death could be between 23rd and 25th November 2004 as per the injuries received from the aforesaid rape. In cross examination he admitted that injuries No. 1 and 2 might be due to fall. Injuries No. 3. 4, 5 and 8 were due to friction. Injuries No. 6 and 7 were due to abrasion and fall. He could not tell the time when the injuries were received in injury No. 10. There was some colligated blood. The injuries were received one day (24 hours) after death. The charge was framed against the accused under Sections 363, 376 and 302 IPC by the Trial Judge on 24.5.2005.
11. In his defence in 313 Cr.P.C. the appellant pleaded ignorance and denial and claimed that he had been falsely implicated due to party bandi and enmity and the witnesses P.W. 1 to P.W. 4 had deposed because they were associates of the informant and co-villagers and the witnesses P.W. 5 to P.W. 10 had deposed because they were public personnel. He did not lead any evidence in his defence. The contentions raised by the learned Counsel for the appellant were as follows:
(1) The case is based on the circumstantial evidence and the chain of circumstances was not so complete that they only resulted in an exclusive inference of guilt of the accused.
(2) The evidence of the witness of last seen P.W. 2 Khilari was not reliable because he did not make any effort to prevent the girl Dropadi from going with the accused Raju alias Raja Ram, nor did he lodge any protest with the accused, who was taking away the girl Dropadi for getting her sugarcane. He had in fact falsely implicated the appellant at the instance of Thakur Das who was inimical to the appellant. He was also a chance witness who gave no good reason for his presence at the athai (3) His 161 Cr.P.C. statement was also recorded after some delay on 4.12.2004 and there is no satisfactory explanation for this delay. The so called F.I.R. cum arrest memo dated 26.11.2004 could not be read in evidence and was hit by Section 162 of the Code of Criminal Procedure, because prior to lodging of the F.I.R., some information must have been communicated to the police station by way of a gumsudagi or other report nominating the accused or some other persons, as the father of the accused was taken into custody.
(4) The so called extra-judicial confession was inadmissible in evidence because the F.I.R. which contained an extra judicial confession could not be read in evidence. The information had been elicited as a result of administering a beating on the accused and hence it was hit by Section 24 of the Evidence Act. The extrajudicial confession was also not put to the appellant under Section 313 Cr.P.C.
(5) The corpse of the deceased Dropadi could have already been discovered earlier as some foul smell may have been emanating from it and assigned to the appellant subsequently when he was arrested.
(6) The time of death when the postmortem was conducted as per the opinion of doctor on 27.11.2004 at 2.10 p.m. was 2 Vi days earlier. The date and time when the rape was said to have been committed as mentioned in paragraph 2 and 3 of the charge, was also shown as 24/25.11.2004. This would imply that the murder would have taken place on 24th November 2004 and it was not understandable on the evidence, where the accused could have kept the deceased after admittedly taking her away with him on 22.11.2004 for getting her some sugarcane.
(7) There was no evidence to suggest that the sugarcane was sold at the athai (village market square).
(8) The mother of the deceased Smt. Shyawan Wali before whom the deceased was said to have left her home was not produced. The time when the deceased was taken away was given as 6 p.m. in the evidence whereas it was shown as 5 p.m. in the charge.
(9) There was no explanation why the missing clothes of the deceased girl were not found at the spot, where the body was lying, nor the same were recovered at the instance of the appellant.
(10) The women, who were supposed to be going for their prayers at the temple at the time when the girl was led away by the appellant, have not been examined, nor the persons whose field was near the field where the dead body was found have been examined.
(11) There was no explanation why the accused was not medically examined for injuries on his penis etc. (12) In any case no case under Section 302 IPC was disclosed and at the highest the case would be a case under Section 304 Part 1 or 2 IPC, as the cause of death was rape and as such the sentence of death awarded to the appellant was not justified.
12. On the other hand the learned A.G.A. had contended that the chain of circumstances were complete for establishing the complicity of the appellant in this offence and there was absolutely no reason for his false implication. Every report of communication of any information to the police station about a crime cannot be treated as an F.I.R. and hence the present F.I.R., which was lodged after apprehending the accused, who had confessed to having committed rape on the deceased and causing her death could not be said to be inadmissible, especially as the dead body of the deceased had been discovered in the midst of the 4 or 5 feet high thickly grown Arhar field, at the instance of the appellant, and it would be too much to suggest that the dead body had been planted there and the discovery subsequently shown on the pointing out of the appellant. No prejudice was caused to the accused, even if the extra-judicial confession was not specifically put to the accused. So far as the error in the charge was concerned, it was a curable irregularity under Sections 212 and 464 Cr.P.C. especially as nothing material would turn on the fact whether the charge described the time of incident as 5 p.m. or 6 p.m. Likewise the date and time of incident, which is mentioned in the charge as 24/25.11.2004 is not material. The same is based on the opinion of the doctor and not on any eye witness account and the doctor cannot give conclusive evidence of the time of death as the doctor's estimate is only an opinion evidence. It was immaterial whether some additional witnesses such as the women and farmers whose fields were near the field where the dead body was found, have been produced or not and there is no need to multiply witnesses in a criminal case especially when outsiders are reluctant to give evidence in a trial. There is little reason to cast doubt on the reliability of P.W. 2 Khilari, the witness of last seen and the witness cannot be faulted for failure or laches of the Investigating Officer in recording his evidence at an earlier point of time.
13. This is a case of circumstantial evidence. The principles for appreciation in a case of circumstantial evidence have been aptly enunciated in Padala Verabira Reddy v. State of A.P. 1989 Supp (2) SCC 706 in paragraph 10, on pages 710-711, which we respectfully adopt. The principles laid down are as follows:
10.(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
Tested in the light of the above principles we are of the opinion that on the facts of the present case the circumstances cogently lead to an inference of guilt, they point unerringly towards the guilt of the accused, the chain appears to be complete and incapable of any other explanation other than the guilt of the accused. It should be noted that it would not be proper to make a fetish of minor lapses in the investigation process and as this Court is concerned that no innocent person should be punished, it is equally concerned that the guilty should not escape punishment on hyper technical arguments, as that would result in the erosion of confidence of people in the system of justice. In this connection it has aptly been observed in paragraphs 20, 21 and 22 of Sucha Singh v. State of Punjab that undue stress cannot be given to the rule of benefit of doubt to the detriment of the legitimate need of society for social justice:
20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. See Gurbachan Singh v. Satpal Singh and Ors. . Prosecution is not required to meet any and every hypothesis put forward by the accused See State of U.P. v. Ashok Kumar Srivastava . A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. See Inder Singh and Anr. v. State Delhi Admn . Vague hunches cannot take place of judicial evaluation. 'A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties. Per Viscount Simen in Stirland v. Director of Public Prosecutor 1944 AC (PC) 315 quoted in Slate of U.P. v. Anil Singh . Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra ...The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace even hunch, hesitancy and degree of doubt....
...The evil of acquitting a guilty person light heartedly as a learned author Clanville Williams in 'proof of guilt' has sapient I y observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless....
...a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....
22. The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal . Similar view was also expressed in Gangadhar Beliera and Ors. v. State of Orissa Emphasis added.
14. So far as the argument by the learned Counsel for the appellant that the evidence of last seen was unreliable is concerned, it may be noted that we find absolutely no reason not to rely on the last seen evidence of Khilari P.W. 2, as the place from where the girl was take away was the village market square and it is not at all unnatural for this witness or for others to assemble there. It was also not of any significance that when Raju appellant offered to get Dropadi sugarcane, which was not available at the square, she went along with him and this witness did not even protest as he might have had no suspicion of the intentions of Raju at that stage. Apart from the fact that this witness was not related to Dropadi, this could have been another reason for absence of protest by this witness, when Raju started taking away Dropadi for getting her some sugarcane. Moreover, informant P.W. I has stated that Raju's bua and phoopha with whom he was residing in the village of incident Ghutai was paternally related to him. Inspite of this fact this witness had deposed against Raju, which was a further testimonial to the reliability of this witness, and the absence of any reason for his false implication of the appellant if he was not indeed a witness of last seen. Also he states that from the very evening, i.e. from about 7 or 8 p.m. when Dropadi's father Thakur Das and uncle Rampal came looking for her he informed them about her going away with Raju. There is also no substance in the bald and unsubtantiated suggestion that Khilari had falsely deposed against the appellant at the instance of Thakur Das. If there was any delay in examining this witness by the Investigating Officer who examined him on 4.12.2004 it was also explainable, as the Investigating Officer P.W. 9 S.I. A.K. Singh, who was the S.O. of Mahobkath was on leave at the time when the body was recovered and the accused was apprehended by the villagers and initially the investigation was conducted on the oral orders of CO. Kulpahar by the S.O. P.S. Panwari P.W. 7 Zameerul Hasan, who might have omitted to record his statement at that stage, but he was not asked any question about the omission and in any case nothing material turns on this minor laches in the investigation, if any.
15. In a catena of decisions of the apex Court Re: Ambika v. Stale J Delhi Administration AIR 2000 SC 718, Dhananjai Singh v. State of Punjab , Dharmendrasinh v. State of Gujarat et al that defects or laches on part of the investigation officer cannot result in discarding the entire prosecution version, if the evidence is otherwise reliable. But the court has to be circumspect and cautious in evaluating the evidence. The evidence in this case has been adjudged in this light. In any case in the present case the alleged defects are of a very minor and technical nature, which can hardly impact on the prosecution case.
16. The third submission of the learned Counsel for the appellant about the inadmissibility of the F.I.R. in the light of Section 162 Cr.P.C. as some information must have already been given to the police station after Dropadi's disappearance on 22.11.2004 also has no legs to stand. In the first place there is no material to suggest that any such information was given to the police station implicating the appellant and the application moved by the appellant in this Court on 16.11.2006 for summoning the general diary of the police station pertaining to dates 22.11.2004 till 28.11.2004 is also only in the nature of roving enquiry, which cannot be permitted in a Court of law, and no such prayer can be granted without any basis to allow such a prayer. Not much advantage can be taken of an admission in the cross examination by P.W. 1 informant Ram Pal that when they have gone to the police station on 23rd to lodge report, the police had locked up Raju's father and released him after 4 or 5 days. It has been held in Binay Kumar Singh v. State of Bihar , Tapinder Singh v. State of Punjab that any cryptic information to a police station such as a gumsudagi report or a telephonic information cannot treated as an F.I.R. so as to bar the admissibility of a proper F.I.R. when it comes into existence. In any case, an F.I.R. is only meant for setting in motion the process of investigation and its contents can only be put to the maker of the F.I.R. for contradicting or corroborating the version given in evidence and for no other purpose.
17. Conning to the next point raised by the learned Counsel for the appellant that the extra judicial confession made by the accused could not be relied on as the F.I.R. itself could not be read because some document in the nature of an F.I.R. must already have been in existence and also that as the information was elicited due to beating, it must be excluded from consideration in view of Section 24 of the Evidence Act. This question is no more res-integra that even if some opinion has been improperly obtained, if the said information is otherwise admissible and corroborated by the circumstances, then there is no prohibition or bar on the consideration of the said information. In the Full Bench decision of Emperor v. Misri 1909 ILR (Vol. XXXI) 592 (Allahabad Series) it was held that if on the promise of pardon, an accused went along with the police and got some jewellery recovered the evidence of recovery was admissible under Section 8 of the Evidence Act, as evidence of conduct of an accused after the crime and the same is not subject to any limitation such as those mentioned under Section 27 of the Evidence Act. In Motibur Rahman and Anr. v. State of Assam where there was evidence of last seen, a false explanation and recovery of the dead body, but no statement had been recorded of the accused, preceding the recovery of the dead body, which could have been read under Section 27 of the Evidence Act, the conviction was upheld as the Court inferred that the accused had knowledge of the concealment, which was only available to him and which established his complicity in the offence. This case applies on all fours with the present case where on the apprehension of the accused, the corpse was produced by the accused from the thickly grown Arhar field of Tai Lodi Rajput, when the crop was 41/4 feet high.
The fifth argument of the learned Counsel for the appellant that the body was already discovered by some independent source and it was planted on the appellant has only to be stated to be rejected. It is a completely implausible suggestion that the body had already been discovered because smell was emanating from it and then the witnesses were waiting for four days after the recovery of the body for the accused to be apprehended and then to place the naked body of the 10 year old girl in the field simply to cast liability for the offence on the accused who was unconnected with the crime. Notably no such suggestion of such an earlier recovery of the dead body and its planting on the appellant in the aforementioned situation has even been made to any witness and for this reason such an argument is wholly imaginary. It is true that under Section 313 Cr.P.C. the making of the extra judicial confession has not been put to this accused, but in our view the accused had sufficient knowledge of this allegation against him and as held in State of Punjab v. Swarn Singh that if the evidence of an accused was recorded in this presence and he had an opportunity to cross-examine, in the absence of prejudice, even if some circumstance is not specifically put to an accused in his statement under Section 313 Cr.P.C. the said evidence shall not become inadmissible.
18. Moreover as observed above, the factum of recovery of the dead body, which was hidden in the field by the accused, after his arrest is clearly admissible against him in view of Section 8 of the Evidence Act and it clearly goes to show that the accused had knowledge of concealment of the body at the point where it was hidden which fact was not known to any other person until the accused was apprehended by the villagers and he led them to the said dead body. This itself is a clinching circumstance to establish the complicity of the accused in the offence irrespective of whether the alleged extra-judicial confession is not taken into account, or his statement is not considered admissible under Section 27 of the Evidence Act. Not much importance can be given to the next contention of the learned Counsel for the appellant that as according to the doctor the death had taken place 2 1/2 days before 27.11.2004 at 2.10 p.m. (when the postmortem was conducted, i.e. on 24/25.1 1.2004, which is before the version given in the charge. This cannot be explained on the prosecution version as the girl is said to have been abducted by the accused on 22.11.2004 and it is not understandable where the appellant would have kept the deceased for over two days, until he committed rape on her on 24.25.11.2004 as alleged. The doctor's opinion that the death had taken 2 Vi days and no earlier than his post mortem examination on 27.11.2004 at 2.10 p.m. can not be uncritically accepted as gospel truth because maggots were present in the nostrils and mouth, rigor mortis had completely passed off and other symptoms of discolouration of the body were present. It is well settled that the estimate of the doctor about the time of death is only an opinion evidence as held in Ram Swaroop v. State of U.P. 2000 SCC (Cri) 484 and in Jai Karan v. State of U.P. 2003 (12) SCC 655.
19. In the absence of prejudice we think that nothing material on the discrepancy in the time when the girl is said to have been abducted by the appellant, which was shown as 5 p.m. in the charge when it was 6 p.m. in the evidence. Under Section 215 of the Code of the Criminal Procedure no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, could be regarded at any stage of the case as material unless an accused is in fact misled by such error or omission, and it has in fact occasioned a failure of justice. Likewise under Section 464 of the Code of Criminal Procedure no finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge, unless a failure of justice has in fact been occasioned thereby.
20. In view of the circumstances above mentioned, it was of no significance that the mother of the deceased Smt. Shyamanwali has not been examined or that the women, who were taking the rounds of the temple when Dropadi left the athai with the appellant or the persons whose fields were near the place where the dead body was found, have not been examined. There is no need to multiply the number of the witnesses, for it is the quality and not the quantity of witnesses that counts. Moreover, the relevant version has already been elicited by the witnesses, who were produced and it a well known though unfortunate fact that witnesses in India are notoriously reluctant to give evidence in matters or to get embroiled in a dispute with which they have no concern and regard the same as a civil dispute between the litigating parties. In this connection the following lines from paragraph 11 of AIR I988 SUPREME COURT 696 Appabhui v. State of Gujarat are pertinent:
11. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.
The point about the clothes of the girl being missing and their non-production is also of little importance, if the body was found lying in the field and the clothes could well have been thrown elsewhere or picked up by some persons or taken away by animals. All those would be questions in the realm of speculation and do not detract from the value of the prosecution evidence that has been adduced in this case. In any case, no question was put to the witnesses in this regard.
21. The absence of medical examination of the accused or as to whether he had any injury on his penis etc., is also of little importance as the essential evidence for establishing the complicity of the accused in this offence is the discovery of the hidden dead body at the instance of the accused from the field and absence of his medical examination is not very material. Moreover, the medical evidence clearly establishes that rape had been committed on the deceased. In the vaginal slide swab also seminal stains and human blood and spermatozoa were found, which also clinches the charge of rape. As the rape was of little girl, it is even possible that the accused might not have received any injury on his penis, hence there was no need for medical examination. Also as held in AIR 2004 SUPREME COURT 2636 "State of Chhattisgarh v. Derha" absence of injuries on the accused is not fatal if the accused was examined after some days. In this case the Apex Court reversed the acquittal by the High Court. The disappearance of the accused after the incident and his apprehension only after four days is another circumstance, which suggests his complicity in the offence. We also find that a bald suggestion that the accused was living in some house belonging to the informant has not been substantiated by any material on record and the prosecution case is clear that the accused was residing with his bua in the village as he was involved in some crime in his own village (although no evidence about the same has been adduced, and we may disregard the latter assertion.
22. We further find that there is absolutely no reason for false implication of the accused, if he was not concerned with this offence. The suggestion that informant Thakur Das was inimical to him and had prevailed on the witnesses to falsely implicate the accused has not been substantiated. In this view of the matter we do not think that any error has been committed by the trial Court in recording the conviction of (he appellant. The non-recording of the conviction of the appellant also under Section 376 IPC by the trial court, an offence whereunder is also disclosed is not very material, as the maximum sentence has already been awarded under Section 302 IPC.
23. However, there is substance fn the last contention of the learned Counsel for the appellant that the cause of death in this case was apparently due to injury No. 10, which was a vaginal tear and which had ruptured the vagina in the upper part, behind the cervix 3.5 cm x 3 cm in size. However, as the cause of death as per the postmortem report was due to ante-mortem injuries, but there does not appear to be any other injury, which was on a vital part we think that the ends of justice would be made, if the sentence of death awarded to the appellant is set aside. Precisely this view was taken by the Apex Court in a recent decision dated 10.1 1.2006 in Criminal Appeal No. 1327 of 2004 in the case of Amrit Singh v. State of Punjab wherein in similar circumstances the Court observed that as the death was not the result of strangulation, but in consequence of the rape perpetrated on the victim the Apex Court observed that it would be improper to award the death penalty and the case could not be said to be the rarest of rare cases. It was further stated in the said decision that the manner in which the deceased was raped may be brutal, but it could have been a momentary lapse on the pail of the appellant who committed the act with the victim girl in the secluded place, hence the Apex Court converted the death penalty awarded to the appellant to a sentence of imprisonment for life.
24. We do likewise and also allow this appeal to that limited extent that while confirming the conviction of the appellant under Section 302 IPC we reduce the sentence from death penalty to rigorous imprisonment for life. The death reference is accordingly rejected.