Allahabad High Court
Vinay Kumar Sharma vs State Of U.P. on 22 July, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Case :- CRIMINAL APPEAL No. - 7052 of 2006 Appellant :- Vinay Kumar Sharma Respondent :- State of U.P. Counsel for Appellant :- U.K. Saxena, Apul Mishra, Rahul Misra, Rajul Bhargava, Sharad Kumar Srivastava, Yogesh Kumar Srivastava, Yogesh Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Suneet Kumar,J.
Hon'ble Vikram D. Chauhan,J.
(Per: Vikram D. Chauhan, J.)
1. The present appeal is preferred against the judgment and order dated 09.11.2006 passed by Session Judge, Gautam Budh Nagar in Session Trial No. 237 of 1995 - State Vs. Vinay Kumar Sharma and another wherein the Appellant has been convicted under section 302 Indian Penal Code for life imprisonment and fine of Rs.15,000/-; under section 376 Indian penal code convicting the Appellant for a sentence of 10 years rigorous imprisonment and fine of Rs.5000/- and further convicting the appellant under section 201 Indian Penal Code with a sentence of three years rigorous imprisonment and fine of Rs.3000/-.
2. Heard Sri Rahul Misra, learned counsel for the Appellant; learned A.G.A. for the State and perused the lower court record with the assistance of the counsel for the parties.
3. There is one Ram Avtar Sharma who is resident of Village-Nar Mohammadpur within Police Station- Jahangirpur, District- Gautam Budh Nagar. The accused person is the next-door neighbour.
4. On 9th August, 1994 at about 10 am, the victim (aged about 12 years), daughter of Sri Ram Avtar Sharma had gone to the house of accused person to fetch water from the hand pump with a bucket in her hand but she did not return from there. She was searched out in the village and when she could not be found then her uncle (Anand Swaroop, S/o Ganga Ram ) on 9th August, 1994 lodged a missing report at 16.45 hours at P.S. Jahangirpur, District Gautam Budh Nagar being G.D. No.21 in respect of the missing of the Victim. In the aforesaid report it was mentioned that the victim girl had gone to bring water from house of Naresh.
5. On the said information, police came to the village and made search in the house of Naresh and other residents of the village but the girl/victim could not be traced.
6. On that very night, Badri Prasad (father of Appellant) came to the house of Suresh Chand Sharma (PW3) and asked for his help in disposing of the dead body of the girl in the canal after disclosing that she was killed by his son Vinay (Appellant), but Suresh Chand Sharma refused to oblige Badri Prasad.
7. On the next day, Suresh Chand Sharma (PW-3) disclose the aforesaid fact Ramavtar and other villagers.
8. On 10th August, 1994, Anand Swaroop gave another report at P.S. Jahangirpur that his niece (victim) has been murdered by Vinay Kumar Sharma, s/o Sri Badri Prasad Sharma and that her corpus is lying in the house of accused - Vinay Kumar Sharma. It was also stated that Vinay Kumar Sharma appears to have committed rape of the victim and, thereafter, has murdered her. It was also alleged that the father of Vinay Kumar Sharma, namely, Badri Prasad Sharma has aided in concealing the corpus of the deceased. The aforesaid report was entered in G.D. No.16 at 12.30 PM on 10th August, 1994. On the basis of the aforesaid, a case under section 302, 201 and 376 of the Indian Penal Code was registered against the accused persons.
9. The then Station House Officer of the police station concerned D.R.Nanoria (PW-6) took investigation of the case in his hand and came along with complainant - Anand Swaroop and other police personnel to the village. The house of the accused person was surrounded by villagers and both the accused person Vinay Kumar Sharma and Badri Prasad were present at the roof of the house.
10. On seeing the police party, both the accused person jumped into the courtyard of their house, where the bricks and bulleys were lying and they were apprehended and beaten by villagers.
11. The investigating officer arrested both the accused person and made enquiries from them. Appellant-accused person confessed to the crime and got recovered dead body of the victim which was wrapped in a gunny bag in a naked condition. The corpus of the deceased was concealed in a almirah of the eastern wall of the room of the Appellant-accused.
12. The body of the deceased was taken out from the bag in naked condition and her clothes namely underwear, Baniyan, salwar, kurta and bangles were also got recovered on 10th August, 1994. The recovery memo of the articles recovered along with corpus of the deceased from the house of Vinay Kumar Sharma (Appellant) is marked as Ex.Ka-1. The witnesses to the aforesaid recovery memo are Ramvir Sharma (PW1) and Dharmendra, S/o Jabar Singh.
13. Badri Prasad (father of Appellant) also got the bucket recovered from the house of the Appellant-accused. The recovery memo of the bucket is Ex - Ka 2. It is the case of the prosecution that the bucket that was recovered was the same bucket which was taken by the victim to the house of the Appellant. The witnesses to the aforesaid recovery memo are Ramvir Sharma and Dharmendra, S/o Jabar Singh.
14. The investigating officer also prepared the inquest report/panchnama dated 10/08/1984 from 13:30 hours to 14:30 hrs. The panchnama was marked as Ex Ka - 5 before the trial court.
15. The body of the deceased was sent for post mortem examination by the investigating officer, through Constable-Chandra Pal and Constable - Yogendra Yadav. In this respect Form 13 was prepared on 10th August, 1994 and the same was marked as Ex Ka - 6. The police form depicting the mark of injury was marked as Ex - Ka 7. The other connected papers were marked as Ex - Ka 8 and Ex - Ka 9.
16. The post mortem of the deceased girl was held on 10th August, 1994 at 4.15 PM by Dr. S.K. Sharma (PW-5) and the post mortem report was marked as Ex. Ka-3.
17. The Investigating Officer also prepared the site plan of the place of occurrence and the place of recovery of the articles and the dead body and the same was marked as Ex. Ka-4.
18. After concluding the investigation, the Investigating Officer has filed a chargesheet (Ex. Ka-10) under Sections 302, 201 and 376 I.P.C. against Appellant and Badri Prasad.
19. The charge was framed by the trial court against accused Vinay Kumar Sharma under Sections 376, 302 and 201 I.P.C. and a charge under Section 201 I.P.C. only was framed against the accused Badri Prasad. Both the accused denied the charges and claimed to be tried.
20. The prosecution in support of the case has examined 8 prosecution witnesses before the Trial Court.
21. Ramvir Sharma (PW1) is the witness of recovery of the dead body of the deceased girl and her clothes and bangles and gunny bag in which the dead body was kept. The aforesaid witness has supported the prosecution case and according to him when the police had arrived in the village, both the accused persons had jumped from the roof of their house and they were apprehended and beaten by the villagers with lathi and danda and as bricks and balli were lying where they had jumped, they have got themselves injured. After their arrest, on interrogation the accused Vinay Kumar Sharma had informed that the dead body of the victim/girl is lying concealed in the almirah of his room and he got the dead body recovered in his presence as well as the police and several villagers. Badri Prasad had brought the bucket of the deceased girl and gave it to the police. The aforesaid witness has proved the recovery memo being Ex. Ka-1 of the blood stained clothes, plastic bangles and bag (including body). The aforesaid witness has also proved the recovery memo being Ex. Ka-2 in respect of the recovery of the bucket. The witness has also proved the recovery of underwear, banyan, salwar and kurta, plastic bangles and the bag and the same are Material Ex. 1 to 6 respectively.
22. Anand Swaroop (P.W. 2) is uncle of the deceased. He has lodged the ''Gumshudgi' Report of the victim at Police Station - Jahangirpur on 9th August 1994 and again on 10th August, 1994 he has given the report to the police in which he has mentioned that he has come to know that accused Vinay Kumar (Appellant) has concealed the dead body of the victim in his house after committing rape and murder of the Victim. The witness has supported the prosecution case and has stated that the victim had gone to fetch water from the house of Naresh but the hand pump of Naresh was not functioning, therefore she had gone to the house of accused Vinay Kumar and thereafter she did not return and could not be found whereupon the missing report dated 9th August, 1994 was lodged by Anand Swaroop. On the next date, when the witness came to know from the villagers that accused Vinay (Appellant) has committed rape and murder of the victim and thereafter has concealed the corpus of the victim in his house, the witness had lodged another report dated 10th August, 1994 with the police station. He is also the witness of recovery of the dead body and the clothes of the deceased from the house of the accused person.
23. Suresh Chand (P.W. - 3) is the resident of the village. According to the aforesaid witness, Badri Prasad had come to him in the night on the date of incident and has asked for his help in getting the dead body of the victim girl disposed off by throwing the same in the canal. The witness has further stated that Badri Prasad had stated to him that the girl has been murdered by his son but the witness refused to oblige him.
24. Ghanendra Singh (PW-4) is the witness of the recovery of the dead body and clothes etc. of deceased and her bucket on 10th August, 1994 and their recovery memos Ex. Ka-1 and Ex. Ka-2. He has supported the prosecution case and has stated that the dead body of deceased was recovered from the house of accused Badri Prasad, who also brought a bucket from his house and gave it to the police. He has proved his signature on recovery memo Ex. Ka-2 and has also proved the bucket Material Ex.7 and its wrapper Material Ex.8.
25. Dr. S.K. Sharma (PW-5) had performed the autopsy of the dead body of deceased on 10th August, 1994 at 4.15 PM. He has supported the above facts on oath and has proved the post mortem report as Ex. Ka-3. According to him, at the time of the post mortem examination, the girl was dead by about 1-1/4 days and there were seven ante-mortem injuries on her body and the posterior fourchette of her vagina was lacerated, posterior vaginal wall was lacerated and her hymen was found freshly ruptured and two slides of her vaginal smear were prepared and were sent for pathological examination and the girl had died due to asphyxia, as a result of strangulation.
26. S.I. D.R. Nanoria (PW-6) is the Investigating Officer of the case. He has proved the site plan Ex. Ka-4 of the place of occurrence as well as of the place of recovery of the dead body of deceased and other articles and has also proved the 'Panchnama' of the dead body of the deceased as Ex.Ka-5 and its related documents, namely, police form no.13 Ex. Ka-6, sketch of the dead body Ex. Ka-7, letter to R.I. Ex.Ka-8, and letter sent to C.M.O. Ex. Ka-9. He has further proved the chargesheet Ex. Ka-10. He has also stated that the original 'Gumshudgi' report is not on file, but it was copied out in the G.D. and the original 'Gumshudgi' report was annexed with the G.D. which had already been weeded out, as per report (paper no.518) of the record keeper of the police department of Bulandshahar. He has also stated that on the basis of the report given at the Police Station on 10th August, 1994, at 12.30 PM no chik FIR was drawn and the case was registered by making entries in General Diary No.16, in which contents of the report were copied out. He has also stated that the G.D. of PS Jahangirpur, dated 10th August, 1994 has also been weeded out but the carbon copy of the General Diary No. Ex. Ka-11, is on file as paper no.10-A, which has been proved by him. He has also said that the accused persons were arrested by him and accused Vinay Kumar got the dead body and clothes of the deceased recovered.
27. Smt. Kusum (PW-7) is the mother of the deceased and is also a witness of seeing her daughter going to the house of accused-persons for taking water. She has supported the prosecution case on oath.
28. Constable Udham Singh (PW-8) is the 'Pairokar' of Police Station Jahangirpur and has stated that the original General Diary of Police Station Jahangirpur, dated 9th August, 1994 and 10th August, 1994 were summoned from the office of SSP Bulandshahar but according to report dated 16th September, 2000 Ex. Ka-12, of the SSP Office, the GDs were weeded out. He has also proved the true copies of GD No.21, dated 9th August, 1994 and GD No.16 dated 10th August, 1994 of PS Jahangirpur, as Ex.Ka-13 and Ka-14 respectively by stating that copies are in the hand writing of the then Head Moharrir Sh. Yogendra Prakash of the Police Station who had been posted with him.
29. The prosecution exhibited the following documents in support of prosecution case:-
Documents Exibit No. Prosecution Witness Recovery Memo Ex. Ka-1 P.W.-1 Recovery Memo Ex. Ka-2 P.W.-4 Postmortem Report Ex. Ka-3 P.W.-5 Site Plan Ex. Ka-4 P.W.-6 Panchnama Ex. Ka-5 P.W.-6 Form No.13 Ex. Ka-6 P.W.-6 Photo Naash Ex. Ka-7 P.W.-6 Report to Police Station Ex. Ka-8 P.W.-6 Report to CMO Ex. Ka-9 P.W.-6 Chargesheet Ex. Ka-10 P.W.-6 Nakal Rapat No.16 Ex. Ka-11 P.W.-6 Weeding out report 16.9.2002 Ex. Ka-12 P.W.-8 Chik FIR Ex. Ka-13 P.W.-8 Nakal Rapat No.16 Ex. Ka-14 P.W.-8
30. The Defence produced the following witness before the Trial Court:-
31. Lakhpat Singh (DW-1) was an Assistant Teacher at Primary School, Jahangirpur where at the time of the occurrence, Badri Prasad was working as the Head Master. He has brought the attendance register of the school pertaining to the year 1994 and on the basis of that register, he has stated that on 9th August, 1994, Badri Prasad had signed at 6.30 AM as a token of his arrival in the school and had again signed at 12.10 PM when he had left the school. He has proved the signature of Badri Prasad and has also filed the photocopy of the attendance register Ex. Kha-1. He has further stated that on 10th August, 1994, S.I. D.R. Nanoria of PS Jahangirpur, had visited the school and had inspected the attendance register and correspondence register of the school in his presence as well as in the presence of other teachers and had also made entry of inspection on those registers. He has also proved the photocopy of correspondence register as Ex. Kha-2. He has also stated that Sri Nanoria had prepared a memo regarding the inspection of the registers whereon, his signature and carbon copy of other were obtained and had given a carbon copy thereof to the school. He has filed the said carbon copy Ex. Kha-3 before the Court.
32. Aasin Ansari (DW-2) was working as Security Guard at Teletube Electronics Ltd., Kavi Nagar Industrial Area, Ghaziabad and has stated that whenever a new visitor used to visit the company to meet any employee, then, he is required to make entry on the visitor's register and, thereafter, he is allowed to go inside and the time of his entry and exit are mentioned and the Security Guard on duty also puts his signature thereof. He has brought the visitor register pertaining to the year 1994 and has stated that on 9th August, 1994 an entry in the name of Vinay Kumar Sharma is made in this register, whereon, his colleague Bhai Pal, Security Guard had also put his signature and there is another entry in the name of Vinay Kumar Sharma on that date, whereon, the security guard Surjeet Singh had put his signature. He has filed the photocopy of the entries of the said register pertaining to 9th August, 1994.
33. Raj Kumar Sharma (DW-3) is the brother of accused Vinay Kumar son of Badri Prasad and according to him, he was working as Assistant Manager (Accounts) in Teletube Electronics Ltd. on 9th August, 1994. He has also stated that he used to write letters to his father at the address of his school. He has proved the original letters dated 26th June, 1994 and 30th July, 1994 as Ex. Kha-6 and Kha-7 respectively. According to him, Appellant-Vinay Kumar is also known as Guddu and through letter dated 30th July, 1994, he had called accused Vinay Kumar to his company in respect of his service and on 9th August, 1994, accused Vinay Kumar had come to meet him at 11.30 AM and remained with him upto 1.15 PM and, thereafter, both of them had come on a scooter to his house and took lunch together. He has also stated that Vinay (Appellant) had gone to meet him at the factory at about 5.30 or 5.45 PM and on 10th August, 1994, he had seen off accused Vinay Kumar at the railway station at 9 AM for Khurja Junction.
34. As per the prosecution case on 9th August, 1994 at about 10 am, the victim (aged about 12 years), daughter of Ram Avtar Sharma had gone to the house of accused person to fetch water from the hand pump with a bucket in her hand but she did not return. She was searched out in the village and when she could not be found then her uncle (Anand Swaroop, S/o Ganga Ram ) on 9th August, 1994 lodged a missing report at 16.45 hours at P.S. Jahangirpur, District Gautam Budh Nagar being G.D. No.21 in respect of the missing of the Victim. The fact with regard to lodging the missing report dated 09.08.1994 of the deceased girl has been testified by Anand Swaroop (PW-2) before the trial court. The said witness has read the contents of the copy of the report dated 9.8.1994 and has admitted the contents are the same as has been given by him at the police station. Further P.W. 6 - Sub Inspector D.R. Nanoria has stated before the trial court that on 09.08.1994 he was posted as station house officer at Police Station - Jahagirpur, Where the missing report of the victim was lodged. He has further testified that the aforesaid missing report dated 09.08.1994 was entered in G.D. No 21 at 16:45 pm on the same day. Con. 473 Shri Udham Singh (PW-8) has stated before the trial court that the copy of GD no 21 has been written by H.M. Yogendra Prakash and has identified the writing of Yogendra Prakash. The fact regarding missing report dated 09.08.1994 has been proved by the prosecution.
35. On the same night, Badri Prasad (Father of Appellant) came to the house of Suresh Chand Sharma (PW-3) and asked for his help in disposing of the dead body of the victim in the canal after disclosing that she was killed by his son Vinay (Appellant), but Suresh Chand Sharma refused to oblige Badri Prasad. Suresh Chand Sharma (P.W. 3) has testified before the trial court that on 09.08.1994 he was sleeping at his house when Badri Prasad came to his house and informed that my son Vinay Kumar (Appellant) has killed Ram Avtar daughter/deceased and he should help him in disposing the dead body of the deceased in the river; Suresh Chand Sharma refused to help Badri Prasad in his design to dispose the body of deceased.
36. On the next day, Suresh Chand Sharma (PW-3) disclosed the said fact to Ramavtar. The said fact was testified by Suresh Chand Sharma (P.W.-3) before the trial court. Further, Anand Swaroop received information from villagers about the fact that the Appellant has murdered deceased and the body of the deceased is concealed in the house of Appellant.
37. On 10th August, 1994, Anand Swaroop gave another report at P.S. Jahangirpur that his niece (victim) has been murdered by Vinay Kumar Sharma, S/o Badri Prasad Sharma and that his corpus is lying in the house of Appellant-Vinay Kumar Sharma. It was also alleged that Vinay Kumar Sharma (Appellant) appears to have committed rape of the victim and, thereafter, has murdered the victim. It was also alleged that the father of Vinay Kumar Sharma, namely, Badri Prasad Sharma has aided in concealing the corpus of the deceased. The aforesaid report was entered into G.D. No.16 at 12.30 PM on 10th August, 1994. On the basis of the aforesaid, a case under section 302, 201 and 376 of the Indian Penal Code was registered against Appellant and Badri Prasad. The Report dated 10.8.1994 is marked as Ex. Ka.-14 before the Trial Court. The fact with regard to lodging report dated 10.08.1994 has been testified by P.W.-2-Anand Swaroop before the trial court. Further, P.W. 6-Sub Inspector D.R.Nanoria has stated before the trial court that on 10.08.1994 he was posted as station house officer at Police Station-Jahagirpur, where a report was lodged that Anand Swaroop has suspicion that victim has been raped and murdered by Vinay Kumar and body has been concealed by Vinay kumar and Badri Prasad. He has further testified that the aforesaid report dated 09.08.1994 was lodged as Case Crime No.101 of 1994, under Sections 302, 201, 376 Indian Penal Code. Con. 473 Shri Udham Singh (P.W.8) has stated before the trial court that the copy of Report No.16 dated 10.8.1994 has been written by H.M. Yogendra Prakash and has identified the writing of the Yogendra Prakash. Report No. 16 dated 10.8.1994 is marked as Exhibit K-14 before the Trial Court. The fact regarding lodging of report dated 10.8.1994 is proved by the prosecution.
38. The then Station House Officer of the police station, PW-6 D.R.Nanoria took investigation of the case in his hand and came along with complainant-Anand Swaroop and other police personnel to the village. The house of the accused person was surrounded by villagers and both the accused person Vinay Kumar Sharma and Badri Prasad were present at the roof of the house. On seeing the police party, both the accused person jumped into the courtyard of their house, where the bricks and bulleys were lying and they were apprehended and beaten by villagers. The said fact has been testified by PW-6 D.R.Nanoria, before the trial court.
" मुल्जिमान के मकान को भीड़ को घेर रखा था तथा दोनो मुल्जिम अपने घर की छत पर थे। जो मुल्जिमान छत पर थे उनमें से एक मुल्जिम विनय हाजिर अदालत था। दूसरा मुल्जिम आज नहीं आया है। दोनों मुल्जिमान हम पुलिस वालों को देखकर अपने मकान के आंगन में कूद गये, उसके बाद छत से कूदने के कारण चोटें आई और गांव वालों ने इनकी पिटाई कर दी। बा मुश्किल गांव वालों से मुल्जिमान को बचाते हुए अपने कब्जे में लिया।"
39. P.W.-1: Ramveer Sharma has also testified the said fact in his statement before the Trial Court "सूचना मिलते ही पुलिस थाना ज० पुर को सूचना दी तो तुरन्त ही करीब 1 बजे पुलिस गांव में आई। जब पुलिस गांव मे आई तो हाजिर अदालत मुल्जिमान विनय कुमार व बद्री प्रसाद अपने मकान के उपर वाले अढ़त में छिप गये। पुलिस को देखते ही भागने के इरादे से छत से नीचे कूद गये तो गांव की बहुत पब्लिक इकट्ठी हो गई थी। गांव वालों ने लाठी डंडों से भी मुल्जिमान को मारपीट किया। जहॉ पर मुल्जिमान छत से नीचे आंगन मे कूदे थे वहां पर ईट पत्थर व बहुत सारी बल्लियां पड़ी थी जिससे मुल्जिमान को हाथ पैरो मे चोट आ गई थी तभी पुलिस ने दोनों को आकर गिरफ्तार कर लिया और पूछताछ किया।"
40. P.W.-3 : Suresh Chand Sharma has testified the fact before the trial court.
"रामौतार ने पुलिस को खबर कर दी। गांव में जब पुलिस आई तो बद्री प्रसाद व विनय कुमार अपने घर की छत पर चढ़ गये। पुलिस के आने पर ये छत से कूदे और भागने लगे तो गांव वालो ने इनको पकड लिया।"
41. The investigating officer arrested both the accused person and made enquiries from them. The Appellant confessed to the crime and got recovered dead body of the victim which was wrapped in a gunny bag in naked condition. The corpus of the deceased was concealed in a almirah of the eastern wall of the room of the accused. The said fact has been testified by D.R. Nanoria (PW6) before the trial court.
"4. मुल्जिम विनय कुमार व बद्री प्रसाद को कब्जे में लेने के बाद उनका ब्यान केस डायरी में दर्ज किया गया। दोनो मुल्जिमान विनय अपने जुर्म का इकबाल करते हुए बताया कि कु० सुषमा उसके घर आंगन में हैण्डपम्प से बाल्टी लेकर पानी भरने आई थी उस समय मेरे घर पर कोई नही था मै अकेला था। जब वह पानी भरने लगे तो मैने अकेली देखकर, मेरी नियत खराब हो गई और मैने उसे हैण्ड पम्प के पास से ही उसे घसीटते हुए कमरे की तरफ ले गया। मैने अन्दर से किवाड बन्द कर उसे जमीन पर गिरा लिया और उसकी जबरदस्ती सलवार, चढढी उतारते हुए, उसके साथ बलात्कार करने की कोशिश की, उसके मुंह में उसकी सलवार व कुर्ती खीचकर उतारकर मुंह में ठुंस दी और बलात्कार करने की कोशिश की, लेकिन वह बलात्कार नही करने दे रही थी और लात घूंसों मार रही थी तब मैने उसके मुंह में अपने हाथों से मुक्के मारे। उसने गुस्से में आकर अपने मुँह से मेरे उँगली व अंगूठे पर दांतों से काट लिया और मैने गुस्से में आकर उसके सलवार व कुर्ते से उसका गला दबा दिया, जिससे वह मर गई। फिर मै घबरा गया। बलात्कार की इच्छा हुई, फिर मुझे ग्लानी हुई तो मेरा मन बदल गया। मैने फिर लाश को घर में रखी बोरी में अपने हाथ से डालकर उसी कमरे की पूर्वी दीवार में बनी अलमारी में छिपा दिया और किवाड़ बन्द कर मै बाहर चला गया। अगर मै गांव से भाग जाता तो लोग मुझपर शक करते इसलिए मै भागा नही, शाम को मेरे पिताजी बद्री प्रसाद जब स्कूल से आये तो मैने सारी बात उनको बताई। तब पिताजी की मदद से रात में घर से लाश निकालकर बाहर निकालने की योजना बनाई तभी गांव में पता लग गया।
5. मैने मुल्जिम विनय की निशानदेही पर मैने सुषमा की लाश बरामद की जिसका मौके पर ही नक्शा बनाया जो पत्रावली पर कागज सं० 6ए है मेरे लेख व हस्ताक्षर में है। इस पर प्रदर्श क-4 डाला गया। "
42. P.W.-1: Ramveer Sharma has also testified the said fact in his statement before the Trial Court "तभी पुलिस ने दोनों को आकर गिरफ्तार कर लिया और पूछताछ किया। पुलिस के पूछने पर विनय कुमार ने बताया कि सुषमा की लाश मेरे कमरे की आलमारी मे छिपा रखी है। पुलिस ने गांव वालो के सामने व मेरे सामने विनय कुमार के मकान से सुषमा की लाश को निकाला।"
43. P.W. 2 : Anand Swaroop has also testified the said fact in his statement before the Trial Court "मैंने इस बात की सूचना भी दिनांक 10.8.94 को लिखकर थाना जहागीरपुर पर दे दी थी। जिस सूचना पर पुलिस तभी गांव मे आई थी और मुल्जिमान विनय व बद्री प्रसाद के घर से अलमारी मे से जो कमरे मे थी के अन्दर से बोरे मे बन्द मेरी भतीजी सुषमा की लाश निकाली थी।"
44. P.W. 3 : Suresh Chand Sharma has also testified the said fact in his statement before the trial court.
"गांव में जब पुलिस आई तो बद्री प्रसाद व विनय कुमार अपने घर की छत पर चढ़ गये। पुलिस के आने पर ये छत से कूदे और भागने लगे तो गांव वालो ने इनको पकड लिया। तब पुलिस वालो को विनय ने बताया कि लड़की मेरे घर पानी भरने आई थी। उसने यह भी बताया कि लड़की के साथ उसने बुरा काम किया था। और लड़की के मुंह में कपड़ा डाल कर उसे मार दिया है। फिर विनय ने अपने घर में कमरे की आलमारी से कटटे में रखी हुई लाश निकाल कर दी। जब पुलिस ने बोरी खोली तो उसमें लड़की नग्न अवस्था में थी।"
45. The body of the deceased was taken out from the bag and her clothes namely underwear, Baniyan, salwar, kurta and bangles were also got recovered on 10th August, 1994. The recovery memo of the articles recovered along with corpus of the deceased from the house of Vinay Kumar Sharma is marked as Ex.Ka-1 before the trial court.
46. Badri Prasad (father of Appellant) also got the bucket recovered from the house of the accused. The recovery memo of the bucket is Ex. Ka 2. It is the case of the prosecution that the bucket that was recovered was the same bucket which was taken by the deceased to the house of the Appellant.
47. It is to be noted that under Section 8 of the Indian Evidence Act, 1872 the conduct of the accused is relevant if such conduct is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto. Section 8 of the Evidence Act is reproduced hereinbelow :-
"8. Motive, preparation and previous or subsequent conduct.- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto."
48. This section embodies the rule that the testimony of resgestae is allowable when it goes to the root of the matter concerning the commission of the crime. The conduct of a person involved in a crime becomes relevant if his conduct is related to the incident that happened. Where a crime has been committed, the court has to take into account both the previous and subsequent conduct of the accused pertaining to the commission of the crime. In certain cases, the previous conduct of the accused throws light on whether the accused is innocent or guilty whereas in some cases it is the subsequent conduct that becomes very important in determining the innocence or guilt of the accused. The Apex Court in the case of Anant Chintaman Lagu Vs. State of Bombay, AIR 1960 SC 500 observes thus :-
"(15)... A criminal trial, of course, is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material...".
49. The apex court in Pankaj v. State of Rajasthan, (2016) 16 SCC 192 has observed as under :-
"23. An objection was raised by the learned Senior Counsel for the appellant-accused that recovery of firearm at the instance of the appellant-accused was planted by the police and it could not have been relied upon. This Court, in a number of cases, has held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
50. Further, Hon'ble Supreme Court in A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714 in paragraph 9 has held:-
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.
51. It is submitted by the counsel for the Appellant that no disclosure statement of the accused was prepared by the police and as such the alleged recovery on the pointing out of the Appellant is highly doubtful. He is further submitted that no arrest memo was prepared by the police at the time of alleged recovery which creates doubt with regard to the prosecution case of recovery of the dead body from the house of the Appellant. Counsel for the Appellant further submits that the alleged recovery cannot be stated to be under section 27 of the evidence act.
52. The corpus of the deceased was recovered from the house of the Appellant on the basis of the information given by the Appellant to the investigating officer during investigation. The dead body of the deceased was recovered in naked condition from a bag along with the clothes which were kept in an almirah of the house. The investigating officer (P.W. 6) in his testimony has proved the factum of the recovery of the dead body of the deceased from the house of the Appellant on the information provided by the Appellant during the investigation. The investigating officer in his statement has further stated that the accused-appellant opened the room and the body of the deceased was recovered from the almirah in the house of the appellant. The witnesses have further proved the recovery memo dated 10.08.1994 being Ex. Ka-1. The clothes of the deceased were also recovered on the basis of the information provided by the Appellant-accused. The conduct of the Appellant-accused in providing information to the investigating officer with regard to the fact that the dead body of the deceased and clothes were hidden in the house of the Appellant-accused and subsequently thereafter Appellant had opened the room and aided in recovery of the body of the deceased and clothes, is an important circumstance/conduct admissible under section 8 of the Evidence Act.
53. Section 8 of the Evidence Act is independent of section 27 of the Evidence Act. Even in a case where the evidence under section 27 of the Evidence Act is not forthcoming, the evidence that the accused led to the spot where the dead body of the victim and the clothes were hidden and the said fact was confirmed by the subsequent recovery of the corpus of the victim and the clothes, can be looked into under section 8 of the evidence act.
54. The Apex Court in Prakash Chand v. State (Delhi Admn.), (1979) 3 SCC 90 has in respect of Section 8 of the Evidence Act observed as under :-
"8. It was contended by the learned Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by Section 162, Criminal Procedure Code. He relied on a decision of the Andhra Pradesh High Court in D.V. Narasimham v. State [AIR 1969 AP 271 : 1969 Cri LJ 1016 : 1969 MLJ (Cri) 687] . We do not agree with the submission of Shri Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162, Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act (vide Himachal Pradesh Administration v. Om Prakash [(1972) 1 SCC 249 : 1972 SCC (Cri) 88 : AIR 1972 SC 975] )."
55. The Hon'ble Supreme Court in Ghanashyam Das v. State of Assam, (2005) 13 SCC 387 has observed in para 5 :-
"5. Another incriminating circumstance which corroborates the case of the prosecution is that the appellant led the IO PW 12 to Kharbhanga riverside and pointed out the place where he had thrown away the khukri. According to the evidence of PW 12 the IO and PW 6, the khukri was recovered from the river with the help of a diver. Though both the courts have eschewed this circumstance from consideration on the ground that no information was recorded by PW 12 the IO so as to attract Section 27 of the Evidence Act, we are of the view that the evidence of PW 12 and PW 6 to the effect that the accused led them to the spot and pointed out the place where the khukri was thrown, which fact stands confirmed by its recovery, can be looked into to throw light on the conduct of the accused under Section 8 of the Evidence Act vide H.P. Admn. v. Om Prakash [(1972) 1 SCC 249 : 1972 SCC (Cri) 88] ."
56. In the case at hand, the factum of information related to the discovery of the dead body and other articles and the said information was within the special knowledge of the present appellant. Hence, the doctrine of confirmation by subsequent events is attracted and, therefore, we have no hesitation in holding that the recovery or discovery in the case at hand is a relevant fact or material which can be relied upon and has been correctly relied upon by trial court.
57. Learned counsel for the Appellant submitted that no reliance can be placed on the alleged recovery of the dead body of the deceased and related articles at the instance of the Appellant as according to P.W.3-Suresh Chand Sharma, he had come to know from Badri Prasad on the night of 09.08.1994 as to where the body of the victim was concealed and therefore it is unlikely that the police would wait till 1:15 PM on 10.08.1994 to recover the dead body at the instance of the Appellant. As per the prosecution case Anand Swaroop lodged report dated 10.08.1994 at the police station at 12:30 PM and thereafter the investigating officer has visited the village and at the instance of the Appellant recovered the dead body of the deceased from the house of the Appellant. It is to be noted that as per the testimony of Anand Swaroop he had received information that the deceased was raped and murdered by the appellant from the villagers in the morning of 10.08.1994 and on the aforesaid basis the report dated 10.08.1994 was lodged. It is further to be noted that as per the statement of P.W.3-Suresh Chand Sharma he had informed Ram Avtar about the information received from Badri Prasad on 10.08.1994. The report dated 10.08.1994 was lodged by Anand Swaroop and P.W.3 Suresh Chand Sharma has not stated that he had informed on Anand Swaroop about the information received from Badri Prasad. Under the facts narrated herein above, the police authorities have promptly taken action on the report dated 10.08.1994 and as such there is no unnatural circumstances which belies the story of the prosecution.
58. Learned counsel for the Appellant further submitted that the dead body of the deceased was recovered in the morning of 10.08.1994 much prior to the prosecution case that it was discovered at the instance of the Appellant on 10.08.1994 at 1:15 PM. In order to strengthen his argument the Counsel for appellant has drawn attention to Form No.13 according to which the dead body of the deceased was send to the headquarter at 3:30 PM on 10.08.1994 which was 42 km away from the police station. He submits that the according to the inquest report, the inquest was completed on 10.08.1994 at 2:30 PM and as such it took one hour for covering 42 km by vehicle on which the dead body was carried. It is submitted that it is highly improbable that in one hour distance of 42 km would be covered with the dead body specifically when the witness of recovery and inquest clearly stated that the investigating officer went to the police station with the dead body and from the police station they went to post-mortem house for post-mortem. The inquest report was prepared on 10.08.1994. As per the inquest report the inquest was completed at 14:30 pm at the village and thereafter the body of the deceased was sealed. Once the body of the deceased was sealed and taken into custody by the investigating officer, the body is required to be transported to the post-mortem in the custody of the police and as such the transportation of the body of the deceased would have been arranged at the behest of investigating officer. P.W.1 has stated that the investigating officer had gone to the police station along with corpus of deceased. It is to be noted that as per the form 13 (Ex. Ka. 16) the distance of police station from the place of occurrence was 4 km and the headquarter was at a distance of 42 km. It has not come in evidence as to nature of transport used for transportation of the body of the deceased after the inquest was completed. Once the body of the deceased sent to the post-mortem in the custody of the police then it would be presumed that the same was transported in the police vehicle at the earliest unless there is evidence to the contrary. The appellant before the trial court has not cross-examined the prosecution witness on this aspect. The coverage of distance of 42 km is a possibility and it cannot be accepted that the same was improbable.
59. Learned counsel for the Appellant submits that the Extrajudicial Confession of Badri Prasad to P.W.3 - Suresh Chand Sharma in the night of 09.08.1994 cannot be relied upon on the following count :-
a) Badri Prasad was acquitted by the trial court.
b) Badri Prasad has no reason to confess the guilt to P.W.3-Suresh Chand Sharma as he was not friendly with Badri Prasad.
c) If the appellant's wanted to dispose of the body of the deceased they could have thrown the same in the open space towards north - West of the house of the appellant
d) If Badri Prasad had informed about the concealment of the body of the victim in the house of Appellant then the aforesaid fact would have found mentioned in the second report lodged by Anand Swaroop.
e) Witness Suresh Chand Sharma is a close relative of informant and as such it is unlikely that Badri Prasad would seek help from P.W.3 - Suresh Chand Sharma.
f) If P.W.3 - Suresh Chand Sharma had very close relation with the deceased family then the said witness would have in natural course of conduct informed the family of the deceased in the night of 09.08.1994 and would have not waited till the next date.
60. As per the prosecution case, on 09.08.1994 Badri Prasad came to the house of P.W.3 - Suresh Chand Sharma on the very night and asked P.W.3 for help in disposing off the dead body of the deceased in the canal after disclosing that she has been killed by his son Vinay-Appellant. Suresh Chand Sharma (P.W.3) has deposed before the trial court that in the night of 09.08.1994 when he was sleeping at his house then Badri Prasad came to his house and asked for help in disposing of the body of the deceased who has been killed by his son Vinay-Appellant. The aforesaid witness has further deposed that on the next day at 6:30 AM the said witness met Ram Avtar. The said witness has further deposed that he had no visiting terms with Ram Avtar and in fact there was a dispute between him and Ram Avtar. It is further to be noted that Anand Swaroop in his testimony before the trial court has stated that on 10.08.1994 in the morning he came to know from the villagers that the Appellant had committed rape and murder of the deceased and the corpus has been concealed in the house of the Appellant.
61. It is further to be noted that Badri Prasad was charged under section 201 of the Indian penal code for disappearance of evidence, screening of the offender. The learned trial court while passing the impugned judgement has held that the circumstance that Badri Prasad had gone to seek help of P.W.3 or disposal of the dead body of the deceased is not sufficient to prove that Badri Prasad was involved in commission of the offence charged. Further, at the instance of Badri Prasad the bucket has been recovered which was taken by the deceased for fetching water from the house of the Appellant. The submission of the Counsel for the Appellant that Badri Prasad has been acquitted by the trial court and as such no reliance on the statement of P.W. 3 Suresh Chand Sharma can be made, is not tenable under law. It is also to be noted that the trial court in the impugned judgement has not rejected the testimony of P.W.3-Suresh Chand Sharma and further the conviction of the appellant cannot be set aside solely on account that Badri Prasad has been acquitted by the trial court.
62. The counsel for the Appellant further submitted that Badri Prasad had no reason to confess his guilt to Suresh Chand Sharma (P.W.3) as neither he had any influence over the police nor he was friendly with the Badri Prasad. It has not come in evidence that there was any enmity between Badri Prasad and Suresh Chand Sharma (P.W.3). The aforesaid witness was subjected to cross examination however no evidence has come with regard to any enmity between Badri Prasad and Suresh Chand Sharma. It is natural human conduct that in the course of distress the person seek help even of a stranger if he has confidence that he may receive some help to overcome his distress. Badri Prasad and Suresh Chand Sharma are resident of same village and must have been known to each other. Village is a small community and is a closely knitted society and as such seeking help from resident of Village is a natural phenomenon. It is to be noted that the Appellant was confronted under section 313 of the criminal procedure code with the evidence of P.W.3-Suresh Chand Sharma however the appellant has not set up any defence that Badri Prasad had never visited the house of Suresh Chand Sharma or there was any enmity between Badri Prasad and Suresh Chand. It is further to be noted that Badri Prasad was also confronted with the evidence of P.W.3-Suresh Chand Sharma however no defence was set up that there was any enmity with Suresh Chand Sharma or they were not on talking terms. Section 313 Cr.P.C prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution's evidence. That opportunity is a valuable one and cannot be ignored. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. Further in the cross examination of Suresh Chand Sharma no question with regard to the relationship of Badri Prasad and Suresh Chand Sharma has been put by the defence. There is no evidence to the effect that there was any enmity between Suresh Chand Sharma and Badri Prasad or they were not on talking terms. The level of relationship between Suresh Chand Sharma and Badri Prasad has not been put to challenge in cross examination. The submission of Leanard counsel for the appellant that Badri Prasad had no reason to confess the guilt to Suresh Chand Sharma is unfounded specifically when Suresh Chand Sharma has entered into the witness box and has testified that Badri Prasad disclosed the information to him and the aforesaid testimony of Suresh Chand Sharma could not have been shaken in the cross examination.
63. Learned counsel for the Appellant submitted that according to Suresh Chand Sharma (PW-3) when Badri Prasad disclosed about the dead body of the deceased concealed by them and thereafter Suresh Chand Sharma had informed the family of the deceased about the same then in the second report dated 10.08.1994 lodged by the informant -Anand Swaroop the name of PW-3 should have been mentioned in the aforesaid report. The report dated 10.08.1994 lodged by Anand Swaroop was to the effect that on 09.08.1994 missing report of the victim was lodged by Anand Swaroop however it has come to the knowledge that the corpus of the victim is concealed in the house of the Appellant and the appellant has committed rape and murder of the victim. Anand Swaroop (P.W.-2) in his statement before the trial court has stated that on 10.08.1994 he came to know from the villagers that the Appellant has committed rape and murder of the victim and the body of the victim was concealed in the house of the Appellant. It is further to be noted that Suresh Chand Sharma (P.W.3) in his testimony before the Trial Court has stated that he had informed Ram Avtar about the fact that Badri Prasad had disclosed to him that his son Vinay has raped and murdered the victim and that he wanted his help to dispose off the dead body of the victim. It is to be seen that Anand Swaroop received information about the commission of the offence by the Appellant from the Villagers and thereafter he is submitted report dated 10.08.1994 at the police station. It is further to be noted that the first information report is not an encyclopaedia and mere omission on part of Anand Swaroop to disclose the details of the source of information in the report dated 10.08.1994 would not demolish the prosecution case specifically when there are other incriminating evidence pointing towards the guilt of the Appellant.
64. It is urged by the counsel for the Appellant that Suresh Chand Sharma is a close relative of the first informant so it is unlikely that the accused would choose him to seek help in disposing of the body of the victim. The testimony of Suresh Chand Sharma (P.W.3) has been recorded before the Trial Court wherein it has been stated that Suresh Chand Sharma had no visiting terms with Ram Avtar and in fact there was a dispute between Suresh Chand Sharma and Ram Avtar (father of the victim). The aforesaid statement in the testimony of P.W.3 has not been shaken in the cross examination nor any material has been brought on record which could substantiate that the aforesaid statement of the P.W.3 was not true. Once there was a dispute/enmity between Suresh Chand Sharma and Ram Avtar then it could be inferred that Badri Prasad could have gone to Suresh Chand Sharma seeking help in disposing the body of the victim.
65. It is further submitted by the counsel for the Appellant that if Suresh Chand Sharma was having close relation with Ram Avtar and the said witness had knowledge in the night of 09.08.1994 with regard to rape and murder of the victim by the Appellant then there was no occasion for waiting till the morning hours for informing to the family members of the deceased. It is to be seen that as per the prosecution case Anand Swaroop had lodged the report dated 10/08/1994 on the basis of the information received in the morning of 10/08/1994 from the villagers. The testimony of Anand Swaroop indicates that he had received information about the murder of victim in the morning hour of 10.08.1994 and on the aforesaid basis the report dated 10.08.1994 was lodged. Testimony of Suresh Chand Sharma further specifies that Suresh Chand Sharma was having dispute with Ram avtar (father of the deceased). It has also come in evidence that Badri Prasad came to the house of Suresh Chand Sharma in the night when he was sleeping and informed about the misdeeds of the appellant. When Suresh Chand Sharma himself got the information late in the night hours on 09.08.1994 and thereafter had informed the father of the deceased the next date in the morning, there is nothing objectionable in this respect specifically when Suresh Chand Sharma had no visiting terms with Ramavtar and Anand Swaroop in his testimony has stated that he received information from the villagers in the morning of 10/08/1994. The information may have crossed from one ear to another as grapevine and as such was received by Anand Swaroop in the morning of 10.08.1994 and as such no issue can be raised with regard timing of disclosure of information by Suresh Chand Sharma.
66. Learned counsel for the Appellant has submitted that the Suresh Chand (P.W.3) in his testimony has stated that the police arrived in the village at 8.30 pm and went away at 1.00 pm. Learned counsel for the appellant has further drawn attention to the statement of PW4 Gyanendra Singh, who has stated that the police has arrived at 10 -11 pm and remained in the village for about 1 and ½ hours and accordingly, left at 12.30 pm. It is to be noted that the witnesses were examined before the Court after 8-9 years of the incident and after such a long period certain contradiction and discrepancies in the statement on the point of time on arrival of the police are natural as the memory of a person fades with the passage of time. The discrepancy pointed out by the learned counsel for the appellant is not of a nature which could demolish the prosecution case.
67. It is also to be noted that the Investigating Officer has proceeded from the police station in pursuance to the G.D. Entry No.16 along with other police personnel and when he arrived in the village crowd was present on the spot before whom the present appellant got recovered a bag from an almirah, which contained the dead body of the victim and her clothes. The body of the victim was found naked and her mouth, throat, hands and legs seamer with blood. The recovery memo being Ex.Ka.1 of the clothes of the deceased and bangles, bag has been prepared by the Investigating Officer. The testimony of P.W.1 Ramveer Sharma, P.W.3 Suresh Chand and P.W.4 Gyanendra Singh evidences the factum of recovery of the dead body of the victim and her clothes at the instance of the Appellant. The said witnesses has withstood the test of cross-examination and as such the testimony of the aforesaid witnesses cannot be discarded.
68. It is further submitted by the learned counsel for the appellant that in Column No.3 of the inquest report, the name of Anand Swaroop is mentioned as the person who has first informed the police station about the recovery of the dead body and this column does not contain the name of the accused Vinay Kumar and the aforesaid fact would demonstrate that the dead body was not recovered at the instance of accused-appellant Vinay Kumar from his house but the same was recovered from some other place. The aforesaid submission of the learned counsel for the appellant is not tenable on account of the fact that Anand Swaroop on 10th August, 1994 had lodged a report at the police station and on the aforesaid basis case under Section 376, 302 and 201 of the Indian Penal Code was registered. Anand Swaroop (P.W.-2) has mentioned that he had come to know that the dead body of the victim was lying in the house of Appellant. According to the prosecution case, the news of the dead body of the victim lying in the house of the Appellant came to the knowledge of Anand Swaroop through villagers and as such the aforesaid fact has been recorded in the report dated 10th August, 1994 and on the aforesaid basis the Investigating Officer has rightly mentioned the name of Anand Swaroop in Column No.3 in the inquest report as the person who has informed the police station about the whereabout of the body of the deceased at the first instance.It is to be noted that the Appellant was not the person who has informed at the police station about the recovery of the dead body but he is accused person at whose instance recovery of the dead body has been recovered by the police after the lodging of the report dated 10th August, 1994 by Anand Swaroop.
69. The learned counsel for the appellant has further submitted that the Investigating Officer has not taken the lock and key of the house of the accused in his possession nor any memo of lock and key was prepared by the investigating officer. It is settled law that omission on the part of the Investigating Officer cannot be the basis for refusing to accept the testimony of the witnesses. The evidence collected by the Investigating Officer are in the nature of corroborative or contradictory to the evidence given on oath before the court and as such the facts and circumstances brought before the court by way of testimony cannot be disregarded on the sole ground that there is omission on the part of the Investigating Officer in conducting the investigation specifically when such a omission does not goes to the root of the prosecution case. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions.
70. Hon'ble Supreme Court in State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715 has held in para 19:-
19..... It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. "
71. Learned counsel for the appellant has further submitted that in the Police Form No.13 being Ex.Ka.6 there is overwriting on the date and timing when the information was given to the police station. The original missing report was lodged on 09.08.1994 and the Investigating Officer in Form No.13 has recorded 09.08.1994 as the date when the information was received at the police station. It is to be noted that the initial report dated 09.08.1994 was subsequently converted into report under section 302, 201 and 376 Indian penal code by report dated 10.08.1994. The Investigating Officer being P.W.6 in a statement has testified the aforesaid fact and further the said fact is recorded in Exhibit Ka-14 . The alleged overwriting in Form No.13 only record the correct fact and the said overwriting will not in any manner dislodge the prosecution case.
73. It is further submitted by the counsel for the Appellant that when the police arrived at the house of the Appellant on the information that the dead body of the deceased was concealed in the house of the Appellant then 40 to 50 villagers were present inside the house of the Appellant and the aforesaid fact is indicative that the discovery of the dead body was not in terms of section 27 of the evidence act but was in fact a rediscovery. It is to be noted that recovery of the body of the deceased from is a important circumstance under section 8 of the Evidence Act. It is further to be noted that the P.W.8 in his testimony has stated that villagers have encircled the house of the appellant. There is no evidence to the effect that the villagers have entered into the house of the appellant. It is further to be noted that the Appellant was at the first floor of his house and thereafter jumped into the courtyard when the police came and thereafter the appellant has opened the room where the dead body of the deceased was concealed. It is not the case of the prosecution that the house of the Appellant was locked from outside and as such the prosecution case is tenable under law.
74. It is submitted by the counsel for the appellant that there is no signature of the accused on the recovery memo and as such the recovery memo is not tenable under law. The Investigating Officer is not required to obtain the signature of an accused in any statement attributed to him while preparing seizure-memo for the recovery of any article. There is no provision under law which mandates that the recovery memo is to be mandatorily signed by the accused person on whose instance the incriminating article has been recovered. While dealing with the same question, the Supreme Court in the matter of State of Rajasthan v. Teja Ram, (1999) 3 SCC 507 has held that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. The Supreme Court has observed in para 30 of its judgment as follows:--
"The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure memo would vitiate the evidence regarding recovery of the axes."
75. Learned counsel for the Appellant further submits that the original missing report dated 09.08.1994 and the subsequent report dated 10.08.1994 has not been submitted before the trial court. It is to be noted that as per the prosecution case the original report dated 09.08.1994 and 10/08/1994 has been weeded out. The prosecution has filed copies of GD No 21 dated 09.08.1994 being Ex Ka-13 and GD No 16 dated 10.8.1994 being Ex Ka-14 which contains the true account of the original report filed by P.W.2 - Anand Swaroop. In this respect the investigating officer, P.W.6 D.R.Nanoria in his testimony has stated that on receiving the missing report the extract of the same are copy in the General diary of the police station. It is submitted that on enquiry made by the trial court to the police, Bulandshahar, the Senior Superintendent of Police, Bulandshahar by paper number 51 has informed that the report has been weeded out. On account of weeding out of the original reports the copies of the same has been produced. The P.W.2-Anand Swaroop has proved the contents of his reports as mentioned in the copies of the General diary. In this reference the statement of P.W.2 - Anand Swaroop is quoted herein below :-
"गवाह को नकल रपट सं० 21 दिनांकित 9.8.94 समय16.45 बजे थाना जहॉगीर पुर बावत गुमशुदगी सुषमा पढ़कर सुनाई गई जिसे सुनकर गवाह ने कहा कि यह वही मजबून है जो मैने दिनांक 9.8.94 को थाना जहागीर पुर पर अपनी भतीजी सुषमा के गायब हो जाने के सम्बन्ध में दिया था। गवाह को नकल रपट नं० 16 समय 12.30 दिनांकित 10.8.94 थाना जहांगीर पुर का मजबून बाबत उसकी भतीजी सुषमा की लाश उसके पड़ौसी विनय कुमार के घर में छिपे होने व उसके साथ विनय द्वारा बलात्कार किये जाने व उसकी हत्या किये जाने तथा विनय व उसके पिता बद्री प्रसाद द्वारा लाश को (सुषमा) छिपाने की बावत पढ़कर सुनाया गया जिसे सुनकर गवाह ने कहा कि यह वही मजबून है जो मैनें अपनी तहरीरी रिपोर्ट दिनांकित 10.8.94 बावत अपनी भतीजी सुषमा के साथ मुल्जिम विनय कुमार के द्वारा बलात्कार किये जाने व उसकी हत्या किये जाने व मुल्जिमान विनय व बद्री प्रसाद के द्वारा उसकी लाश को घर में छिपाये रखने की बावत थाना जहांगीर पुर में दी थी।"
76. The contents of copy of the Gen diary being GD No 16 dated 10.8.1994 and GD No 21 dated 9.8.1994 has been duly proved by the P.W.2- Anand Swaroop. The prosecution has further brought on record the report dated 16.9.2002 of the office of Senior Superintendent of police, Bulandshahar that the report dated 09.08.1994 and 10.8.1994 is weeded out. The P.W.6 has further stated in his testimony that no chik FIR was brought on the basis of report dated 10/08/1994 and after the general diary entries have been made, the case was registered against the accused persons. The submission of the counsel for the Appellant that the prosecution has deliberately withheld the original report before the trial court as the aforesaid report reveals the name of other persons is without any substance.
77. Counsel for the Appellant has further argued that the charge of rape against Vinay Kumar (Appellant) is completely ruled out from the post-mortem report as well as the pathological report. In this respect it is to be noted that the post-mortem report as well as the testimony of P.W.5-Dr S.K.Sharma reveals that the posterior fourchette and the posterior vaginal wall of the deceased were lacerated and the hymen was freshly ruptured. The said witness has further stated that the above facts would demonstrate that something forcefully entered into the vagina of the deceased. The aforesaid witness has further testified that abrasion were found on the thigh of deceased which would have come from forcibly widening her legs. The doctor has opined that some hard object was inserted into vagina of deceased which caused rupture of the hymen and also lacerated the posterior wall of the vagina. Section 375 of the Indian penal code in the first explanation states that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. The injuries on the post-mortem report and the testimony of P.W.5 brings home irresistible conclusion that the vagina of the victim was penetrated. The circumstances in which the body of the victim was found is an indicator of fact that the victim was subjected to sexual abuse.
78. The counsel for the Appellant has further submitted that the P.W.5 in his testimony has stated that the two sides of vaginal seamer were sent for pathological examination. It is submitted that no pathological report was brought on record and as such it can be presumed that no spermatozoa was found in the vaginal seamer. In the present case Appellant has also been charged for an offence of rape. As per section 375 of the Indian penal code merely penetration is sufficient for constituting the offence of rape. The sperms can be found only when the person committing the offence has discharge the semen. The rape in the eyes of law can be committed if the vagina of the victim was penetrated.
79. Learned counsel for the Appellant has further submitted that on the date of alleged incident on 09.08.1994, the appellant was not present in the Village and had gone to meet his brother Raj Kumar Sharma at his factory in Ghaziabad. In this reference the defence has examined DW-2 Aasim Ansari and DW-3 Raj Kumar Sharma.
80. Literal meaning of alibi is "elsewhere". In law this term is used to express that defence in a criminal prosecution, where the party-accused, in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at that time. The plea taken should be capable of meaning that having regard to the time and place when and where he is alleged to have committed the offence, he could not have been present. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea of alibi is not one of the General Exceptions contained in Chapter IV IPC. It is a rule of evidence recognised under Section 11 of the Evidence Act.
81. When a plea of alibi is raised by an accused, it is for the accused to establish the said plea by positive evidence. Under Section 11 of the Evidence Act, 1872 collateral facts having no connection with the main fact except by way of disproving any material fact, proved or asserted can be admitted in evidence. In other words, the facts proved as such which make the existence of the fact so highly improbable as to justify the inference that it never existed, but such fact has to be established by the person who takes the plea. It is trite that a plea of alibi must be proved with absolute certainty so as to completely exclude the presence of the person concerned at the time when and the place where the incident took place.
82. It is submitted by the counsel for the Appellant that on the date of alleged incident, the Appellant was present at Ghaziabad. In this respect the defence has testified D.W.-2: Asin Ansari who is said to be working as Security guard in Delhi Teletube Company, Ghazaibad. The aforesaid witness was not on duty when the Appellant is alleged to have entered the aforesaid company premises. It is to be noted that as per the case of the Appellant, he is said to have entered the company premises at Ghaziabad on 09.08.1994 at 11:20 AM. In this respect the defence has submitted the visitor register of the above-mentioned company of the relevant date. The witness D.W.- 2 : Asin Ansari has stated that when the relevant entry in the visitor register was made he was not on duty and at that time one Bhaypal and Surjit were present at the duty. He has further testified that a person who is entering the premises of the aforesaid company, his identity is not verified at the gate of the company. The said witness has only identified the signatures of Bhaipal and Surjit Singh who were Security guard posted in the aforesaid company on the relevant date. It is further to be noted that the witness D.W.- 2 : Asin Ansari has not seen the Appellant entering the company premises at Ghaziabad on 09.08.1994 nor he has witnessed the exit of the Appellant from the company premises. As such on the basis of the testimony of D.W.- 2 : Asin Ansari it cannot be said that the Appellant had actually visited the factory on 09.08.1994.
83. The counsel for the Appellant has also relied upon the testimony of DW-3 : Raj Kumar Sharma who happens to be the real further of the accused - Appellant. The said witness has stated that the Appellant on 09.08.1994 at 11:30 AM had visited the factory at Ghaziabad to meet the aforesaid witness and remained there up to 1:15 PM and thereafter both of them had gone to take lunch at his residence and thereafter again came to meet at 5:30 PM. Learned AGA has submitted that the witness in question was an officer of the factory and therefore the possibility that he might have got the visitor register managed cannot be ruled out. It is to be noted that the visitor register is said to be having signature of the accused - appellant however the signature of the accused appellant in the order sheet of the trial court does not match with the signature in the aforesaid register with naked eye. There is no evidence to the effect that the signature on the register are that of the accused- Appellant. The witness DW-3 : Raj Kumar Sharma who is the real Brother of the Appellant and, therefore, the possibility that the aforesaid witness would depose in favour of the accused appellant to get him released from criminal prosecution cannot be placed out and safe reliance therefore cannot be made on the testimony of the aforesaid witness. The aforesaid testimony does not create any reasonable doubt with regard to the presence of the Appellant on 09.08.1994 at his village.
84. We also find no merit in the plea of alibi as it is just an excuse which has been put forward by the accused persons to escape the liability in law.
85. Learned counsel for the Appellant has further argued that all the witnesses namely PW-1 Ramvir Sharma, PW-2 Anand Swaroop, PW-3 Suresh Chand and PW-4 Ghanendra Singh belong to one family and therefore their testimony cannot be accepted. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Apex Court in Kartik Malhar Vs. State of Bihar, (1996) 1 SCC 614 has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
86. Merely because the witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. There is no bar in law on examining family members as witness. Evidence of a related witness can be relied upon provided it is trustworthy.
87. The Supreme Court in State of Uttar Pradesh Vs. Samman Dass, (1972) 3 SCC 201 observed as under:-
"23...It is well known that the close relatives of a murdered person are most reluctant to spare the real assailant and falsely involve another person in place of the assailant..."
88. In Khurshid Ahmed Vs. State of Jammu and Kashmir (2018) 7 SCC 429, Supreme Court on the issue of evidence of a related witness observed as under :-
"31. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."
89. Learned counsel for the Appellant has further argued that the wall in between the house of Ram Avtar and Appellant is 3 to 4 feet in height and as such it is impossible that a girl of 12 years age was forcefully raped in the house of the Appellant and no person would have heard protest and nobody would have seen anything specially when the occurrence took place in the daytime on 09.08.1994 in the village. It is to be noted that the deceased was child who was taken away by the Appellant and thereafter raped and murdered. As per the statement under section 313 Cr.P.C. the age of the accused was 38 years on 02.05.2006. The incident took place on 09.08.1994 that is 12 years from the date when the statement under section 313 Cr.P.C. was recorded. On the date of occurrence the Appellant was aged about 26 years. The appellant was at his prime young age and could have easily overpowered a child leaving her the chance to make any distress call. The house of the Appellant was having open land on the southern side and the place where the body of the deceased was found was on the northern side as such there was no chance for any person to have seen the occurrence once the victim had entered into the premises of the appellant. Even otherwise the recovery of the dead body of the deceased at the instance of the Appellant is indicative of the fact that the victim had gone to the premises of the Appellant on the fateful day.
90. It is submitted by counsel for the Appellant that in the present case co-accused Badri Prasad is acquitted by the trial court and no government appeal is preferred against the acquittal of Badri Prasad which shows that the learned trial court was not very confident about the prosecution story. Badri Prasad was charged under section 201 of the Indian penal Court for disappearing of evidence with the intention of screening the offender from legal punishment. Badri Prasad was not charged under section 302 of the Indian penal Code. The trial court has found no evidence against the aforesaid accused person and as such acquitted the aforesaid accused person and the same would not ipso facto be indicative that the prosecution story was false specifically when the dead body of the deceased was recovered at the instance of Appellant from his house.
91. It is argued by counsel for the Appellant that the offence of rape and murder is not substantiated as there is no blood stain on the clothes of the accused nor any blood is found in the almirah from where the dead body of the deceased was recovered in a gunny bag nor blood stained earth has been found from the place of occurrence. It is to be noted that the post-mortem of the deceased was held on 10.08.1994 and according to the post-mortem report the death occurred due to Asphyxia as a result of strangulation. The post-mortem report observes contusion and abrasions on the body of the deceased. Injury no 1 is a lacerated wound being muscle deep. The injuries on the deceased are not of such nature which would have spilled blood on the Earth or clothes of accused. The failure of the prosecution to recover the blood strained clothes of the accused by itself may not be a ground to disbelieve the prosecution case. It is to be seen that the gunny bag in which the dead body was found was blood stained. The nature of the injuries found on the body of the deceased would have stained the gunny bag but the same would not have the effect where the blood would have spilled on the earth. The failure of the investigation officer in recovering the blood stain from almirah where the body of the deceased was found may not disbelieve the prosecution story when there is other cogent evidence and circumstances to support the prosecution case. The argument of the Learned counsel for the Appellant sans merits and as such is liable to be rejected.
92. The counsel for the Appellant submits that as per the prosecution case on 09.08.1994 at about 10 AM the victim girl had gone to the house of accused Vinay Kumar Sharma to fetch water. In this regard the prosecution has examined P.W.-7-Smt. Kusum (mother of the deceased girl). The testimony of the aforesaid witness does not inspire confidence and appears to be an afterthought and the prosecution has failed to prove that the deceased girl had gone to the house of the Appellant to fetch water and as such the prosecution story cannot be relied upon
93. The Learned Counsel for the Appellant has further stated that the testimony of P.W. 7 has several discrepancy as under :-
a) The witness P.W.-7 - Smt Kusum in cross examination has stated that she went to the house of the Accused - Appellant to enquire about deceased girl and the Appellant informed her that she has gone to school. It is submitted that the conduct of the aforesaid witness is unnatural as she has not asked the accused Vinay about her bucket.
b) The witness P.W.-7-Smt Kusum in cross examination has stated that she had informed her husband-Ram Avtar Sharma and Devar-Anand Swaroop on the same day that the deceased girl had gone to the house of Appellant-Vinay to fetch water and thereafter she has not come back to her house. It is submitted by the counsel for the Appellant that the report dated 09.08.1994 lodged by Anand Swaroop at the Police Station-Jahangirpur with regard to missing of the deceased girl has specifically stated that the deceased girl went to house of Naresh to fetch water. In case P.W.-7-Smt Kusum had informed husband-Ram Avtar Sharma and Devar - Anand Swaroop then there was no occasion for Anand Swaroop to report on 09.08.1994 that the deceased girl went to house of Naresh. Similarly in the report dated 10/08/1994 to the police station there is no reference to the fact that the victim girl went to the house of Appellant - Vinay to fetch water.
94. It is to be noted that the trial court has rejected the testimony of P.W.-7 - Smt Kusum with regard to the fact that she had seen her daughter entering into the house of accused - appellant to fetch water.
95. The present case of the prosecution rests on the circumstantial evidence and there is no eye witness with regard to the occurrence. In the case of circumstantial evidence all the incriminating circumstances which points towards the guilt are required to be taken into consideration while coming to the conclusion with regard to the complicity of the accused. Merely on the ground that P.W.-7 - Smt. Kusum does not appear to be a reliable witness it cannot be stated that the fact that the deceased girl had gone to the house of the Appellant - Vinay Kumar Sharma is disproved, in case where there are other incriminating circumstances pointing towards the guilt of the accused person. The most important circumstance is the recovery of the dead body of the victim-girl from the house of the Appellant-Vinay Kumar. In case the aforesaid circumstance is proved by the prosecution beyond reasonable doubt then it can be accepted that the victim had gone to the house of the Appellant- Vinay Kumar.
96. It is also urged that on the basis of the report dated 09.08.1994, police had visited the village and made search of the victim - girl in the house of Naresh, Jai Prakash, Chandra Pal but the house of Accused-Vinay Kumar Sharma was not searched on 9.8.1994 by the police. On the aforesaid basis it is submitted that the case of the prosecution that the victim had gone to the house of the Appellant-Vinay Kumar is not reliable. It is to be seen that the police had made a search on 09.08.1994 on the basis of the report dated 09.08.1994 lodged by Anand Swaroop. The circumstance that the police had not searched the house of the accused Vinay Kumar on 09.08.1994 will not in any manner shake the prosecution case specifically when the dead body of the victim is recovered from the house of the Appellant -Vinay Kumar.
97. Anand Swaroop - PW 2 although in his statement before the trial court has stated that the victim girl was called by Vinay Kumar under the pretext of fetching water from his house however the aforesaid witness has not been examined by the defence counsel in this regard and no question has been put to him as to whether he had informed the investigating officer about the fact that the victim had gone to the house of accused Vinay Kumar. It is also to be noted that no questions were advanced to the Investigating Officer-PW-6 by the defence counsel in this respect.
98. The Investigating Officer-D.R.Nanoria (P.W. 6) has stated that when he reached the house of the accused, the accused person jumped from the terrace of their house and they were taken into custody by him. The arrest of the accused has been duly testified by the investigating officer. It is to be noted that mere omission on the part of the police will not negate the testimony of the examined witness. It is further to be seen that at the instance of the accused person the dead body, clothes of the victim and bag from the house of the accused person has been recovered and the recovery memo has been prepared. P.W.1-Ramveer Sharma has further testified that on 10.08.1994 when the police came to the village they had arrested the accused person and interrogated them.
99. It is also submitted by counsel for the Appellant that Ramvir Sharma (PW-1) in his statement before the trial court has stated that they had dispute with Badri Prasad and as such it is improbable that the victim - girl will go to the house of the Accused Vinay Kumar. Ramavtar is Ramveer Shamra brothers son. The house of Ramavtar is 50 yards away from house of Ramvir Sharma. Both persons are related however are living separately. Ramvir Sharma has stated in his testimony that he had dispute with Badri Prasad and the same would not mean that Ramavtar was also not on talking terms with Badri Prasad.
100. It is also urged on behalf of the Appellant that the report dated 09.08.1994 at 4:45 PM lodged by Anand Swaroop (PW-2) with the allegation that the victim was missing since 10 AM however there is no reference in the said report that the victim was seen entering the house of the Appellant- Vinay Kumar. The report dated 09.08.1994 alleges that the victim aged about 12 years went to the house of Naresh to fetch water however when she did not come back for a long time and was missing and as such the report was lodged. Anand Swaroop is uncle of Ram Avtar - Father of the Deceased. He is living in separate house. Naresh is son of Anand Swaroop and lives along with Anand Swaroop. The witness Anand Swaroop in his statement before the trial court has stated that the victim went to the house of Naresh to fetch water however the tap was not working and Appellant - Vinay Kumar called the victim on the pretext of taking water from his house. The accused has not cross-examined the witness Anand Swaroop as such there is no ground to disbelieve the testimony of Anand Swaroop. A contradiction or an omission which amounts to a contradiction if proved in accordance with the provisions of the Evidence Act, 1872 can impeach the credibility of the witness and can help in rejecting the evidence of the prosecution in criminal trials. Contradictions are to be proved in accordance with the Evidence Act otherwise they would have no evidentiary value and would not be admissible.
101. Hon'ble Supreme Court in Mahavir Singh v. State of Haryana, (2014) 6 SCC 716 has observed as under:-
"16. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised."
102. The Apex Court in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 has observed as under :-
"19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."
103. In the present case the Appellant has not cross-examined P.W.2 nor the contradiction has been proved in compliance with section 145 of the Evidence Act and as such the submission of the counsel for the Appellant is not sustainable.
104. The following incriminating circumstances are drawn by the prosecution against the Appellant which points towards the guilt of the Appellant :-
a) On 09.08.1994 a missing report of the deceased was lodged by Anand Swaroop (P.W.-2) with the allegation that at about 10.00 am on 09.08.1994, victim aged about 12 years had gone along with bucket to fetch water however did not come back.
b) On 10.08.1994 report was lodged by Anand Swaroop that the Appellant has murdered and raped the deceased and the body has been concealed in the house of the Appellant. The aforesaid information was lodged by Anand Swaroop on the information received from the villagers.
c) On the basis of the above-mentioned report dated 10.08.1994, the earlier missing report dated 09.08.1994 was converted into Case crime no 101 of 1994 under section 302, 201 and 376 of the Indian penal Code by the police.
d) On 10.08.1994 police visited the village and at the instance of the Appellant the body of the deceased, clothes, bangles were recovered from almirah in the house of the Appellant. The recovery memo was prepared by the investigating officer and the same was marked as Ex Ka-1 before the trial court.
e) On 10.08.1994 at the instance of Badri Prasad (father of Appellant) the bucket of the deceased was recovered from the house of the Appellant. The Recovery Memo was Prepared by the Investigating Officer and the same was marked as Exhibit Ka-2.
f) The panchayatnama of the deceased was conducted on 10.08.1994 in the presence of P.W.3- D.R. NaNoria. As per the panchayatnama the deceased died on account of injuries on the body of the deceased. The panchayatnama was marked as Ex. Ka-5 before the trial court.
g) The post-mortem of the deceased was held on 10.08.1994 by Dr. SK Sharma (P.W.5). As per the Post-Mortem Report lacerated wound, Contusion, abrasion were found on the body of the deceased. Posterior Fourchette lacerated, post vaginal wall also lacerated, freshly ruptured hymen. As per the post-mortem report the deceased died due to Asphyxia as a result of strangulation. The said witness has proved the post-mortem report.
h) The prosecution witnesses have proved the prosecution case beyond reasonable doubt and the Appellant has not been able to dislodge the prosecution case in cross examination.
i) The statement of the Appellant under section 313 of the criminal procedure code was recorded before the trial court. Appellant has not been able to explain the circumstance with regard to the recovery of the dead body of the victim (in naked condition) from the house of the Appellant.
105. The Appellant has failed to dislodge the prosecution case and no circumstance has been stated which would entitle the finding of conviction and sentence recorded by the trial court as per-se perverse. We are in agreement with the conviction and sentence recorded by the trial court in the impugned judgment.
106. In view of the aforesaid, the present appeal lacks merit and is, accordingly, dismissed.
107. Office is directed to return the record of the lower court forthwith along with a copy of this order.
Order Date:-22.7.2022
Bhaskar
(Vikram D. Chauhan, J.) (Suneet Kumar, J.)