Allahabad High Court
Kuldeep Alias Bholu S/O Amar Jeet vs State Of U.P. on 2 August, 2007
Equivalent citations: 2008 CRI. L. J. (NOC) 96 (ALL.) = 2007 (6) ALJ 338, 2008 (1) AJHAR (NOC) 319 (ALL.) = 2007 (6) ALJ 338 2007 (6) ALJ 338, 2007 (6) ALJ 338
Author: R.N. Misra
Bench: Imtiyaz Murtaza, R.N. Misra
JUDGMENT R.N. Misra, J.
1. This appeal has been preferred by the appellant Kuldeep alias Bholu against the judgment and or in dated 14.9.2005 passed by Shri S. Lal, the then Addl. Sessions Judge, Court No. 3, Bulandshahr in Sessions Trial No. 869 of; 2003, by which the appellant has been convicted for the offences punishable under Sections 376(g)(2) and 302 read with Section 34 of the Indian Penal Code and Section 4/25 Arms Act. The appellant has been sentenced to death under Section 302 read with Section 34 IPC and fine of Rs. 5000/-only. Further, he has been awarded life imprison and fine of Rs. 5000/- only under Section 376(g)(2) IPC. He has further been awarded one year R.I. and fine of Rs. 2000/- only under Section 4/25 Arms Act and in default of payment of fine, he Las been awarded simple imprisonment for 1 year and 5 months. All the sentences have been ordered to run awarded to the appellant therefore, the learned Sessions Judge has referred this matter under Section 366 of the Criminal Procedure Code for confirmation by this Court.
2. The facts giving rise to this case are as under:
That the complainant-informant Govardhan was a resident of village Samkola, Police Station Gulaothi district Bulandshahr and appellant was a resident of village Naya Bansh situate in the same police station. On 22.8.2003, the complainant/informant along with his daughter and wife Smt. Chameli had gone to. collect grasses from his agricultural field situate outside of his village. His wife and daughter. were returning back home and the complainant-informant stayed at his field. It was about 5:30 PM, when the daughter and wife of the complainant-informant reached near the Arhar field of Sonvir. The appellant along with two others namely Mukesh Kumar alias Sonu and Yogendra met them there. They had a knives and country made pistols. They dragged the daughter of the complairant-informant in the Arhar field ana one of ther. put country made pistol on the temple of Smt. Chameli. One by one they committed rape upon the daughter of the complainant-informant by gagging her mouth with stabbed by the accused persons. Smt. Chameli raised alarms and the complainant-informant and other villagers who were working in the nearby fields, reached there and saw the incident. The accused persons ran away from the spot. The complainant-informant and other villagers brought the victim to Savita Nursing Home situate in Kasba Gulaothi for her treatment but she was declared dead by the doctor.
3. On 22.8.2003 at about 8:15 PM, the complainant/informant went to the police station Gulaoti along with the dead body of the girl and lodged FIR Ext.Ka-1 there. The police registered a case on crime No. 153 of 2003 under Section 376 and 302 IPC as is evident from Chik Ext.Ka-2 and G.D. Ext.Ka-3. Sub Inspector D.P. Upadhyay prepared the letter's to R.I. and CMO Exts.Ka-18 and Ka-19 respectively, Challan Ext.Ka-20 and sealed the dead body and sent it for the post-mortem'' examination. Dr. Dinesh Kumar of District Hospital, Bulandshahr conducted the post-mortem examination, the report of which: is Ext.Ka-4. The Investigating Officer, Upendra Kumar proceeded to the place of occurrence, inspected it and prepared site-plan Ext.Ka-7, took blood stained and plain mud and prepared memo Ext.Ka-8. The calwar of the deceased was also taken by Sub Inspector D.D. Upadhyay, who prepared chef memo Ext.Ka-9. Sri Upadhyay also took in possess'-on a 'Chunari' of the deceased and prepared memo Ext.-21. The Investigating Officer arrested all the three accused persons and on 12.9.2003 on the pointing out of appellant, a knife was recovered from the field of Jaswant situate near the place of occurrence. The memo Ext .Ka-11 was prepared by him. All the recovered materials along with the clothes etc. of the deceased "were sent to the Forensic Lab, Agra, the report of which is Ext.Ka-22. The Investigating Officer recorded the statements of the witnesses and after being satisfied with the inquest Ext.Ka-16 of the dead body, Photo Ext.Ka-17 and Kuldeep for the offences punishable under Sections 376 and 302/34 of the Indian Penal Code, which is Ext. Ka-13. Another charge-sheet under Section 25 of the Arms Act was also submitted by the Investigating Officer, which is Ext.Ka-5. It ray be pointed out here that the other co-accused Mukesh @ Sonu and. Jogendra were declared juvenile be the competent Board and their cases were separated. The appellant was tried by the learned Sessions judge, Court No. 3, Bulandshahr. He denied the allegations levelled against him and alleged his false implication in this case. He was charged for the offences punishable under Section 376(g)(2), 302 read with Section 34 IPC and 4/25 Arms Act.
4. In support of its case, the prosecution has examined Smt. Chameli PW-1, Govardhan PW-2 and Dharampal PW-3 as eye-witnesses of the occurrence. PW-4 Head Constable Sewaram was examined to prove the chik and G.D. of the registration of the case on the basis of written, report of the complainant, Dr. Dinesh Kumar PW-5 was examined to prove the rots mortem report, Anil Kumar PW-6 was examined to prove the registration of the case under Section 4/25 Arms Act on crime No. 181 of 2003 on the basis of written recovery memo of Sub Inspector Upendra Kumar. This case was, registered on 12.9.2003 at about 11:50 AM, Constables Manveer Singh PW-7 was examined who had transmitted the dead body to the mortuary along with the relevant papers, Sub Inspector Upendra Kumar PVJ-8 was examined as Investigating Officer of the case, Constable Wazid Ali was examined to prove the registration of the case crime No. 161 of 2003 under Section 25 of the Arms Act, Constable Sheodan Singh PW-10 was examined as witness of recovery of knife on the pointing out of the ac caused and Sub Inspector D.D. Upadhyay PW-11 was examined to prove the inquest and other relevant papers. The accused did not examine any witness in his defence.
5. After hearing the parties and considering the evidence on the record, the learned Trial Court found the prosecution case fully proved and convicted the appellant and passed sentences against him referred to earlier and aggrieved by the same he has preferred this appeal.
6. We have heard, the learned Counsels for the parties and perused the evidence on record. It may be pointed out here that counsel in amicus curiae was appointed by this Court for the appellant.
7. This fact is not disputed that Km. Greta aged about 16 years died on 22.8.2 00 3 due to injuries. The post-mortem report Ext. Ka-4 conducted by Dr. Dinesh Kumar PW-5 on 23.8.20 03 at 4:30 PM deceased.
(1) Incised wound 3.0 cm X cavity deep on Lt. Side of middle of chest, 9 cm below the left nipple at "7 O clock" position.
(2) Incised wound 2.0 cm X 1.0 cm X cavity deep on Rt. Side of middle of chest, 10 cm below the Rt. nipple at "5 O clock" position.
(3) Incised wound 3.0 cm X 1.0 CM X cavity deep on Lt. Side upper part of abdomen, 5.0 cm above the umbilicus at "10 O clock" position.
(4) Incised wound 1.5 cm X 1.0 cm X cavity deep on Lt. Side middle of abdomen 1.5 cm. away from umbilicus at "3 O" clock position.
(5) Incised wound 3.0 cm X 1.0 cm X cavity deep on Lt. Side of abdomen middle part 6.5 cm. away from umbilicus at "3 O clock" position.
(6) Incised wound 3.0 cm X 1.0 cm X cavity deep on Left Side lower part of abdomen, 8.0 cm. medial to Left of iliac crast. Loop of small intestine coming out from wound.
(7) Incised wound 3.0 cm X 1.0 cm X muscle deep on Rt. side lower part of chest, 12 cm below the the Rt. Nipple, at 6 O clock" position.
(8) I.W. size 2.0 cm X 1.0 cm X muscle deep on Rt. side if chest, 13 cm below the Rt. nipple at "7 O clock" position.
8. All the injuries were caused by sharp cutting weapon like knife. In the opinion of Doctor the duration of the death was about one day. According to the prosecution case, the incident had taken place on 22.8.2003 at about 5:30 PM. Thus, the time given by 'the prosecution, corresponds with the opinion of the Doctor.
9. Now the main question which is to be decided in this case is that who had caused these injuries. According to the FIR, there were three persons namely Mukesh alias Sonu and his other two associates. When the police interrogated the prosecution witnesses the names of Kuldeep alias Bholu and Yogendra came into picture. As we have discussed earlier, the accused Mukesh alias Sonu and Yogendra were deckared juvenile offenders and their cases were separated. Only the present appellant was tried by the Sessions Court. In the FIR smt. Chameli her husband Govardhan and some vilage people were named as eye-witnesses of the occurrence. The prosecution has examined Chameli, Govardhan and Dharampal as eye-witnesses of the occurrence. They have given the complete picture of the incident.
10. P.W-1 Chameli is the mother of the deceased. She has stated that at the relevant date she had gone to her agricultural field situate outside the village. Her husband and daughter were also with her. She had collected grasses. She along with her daughter were coming back to her house. The bundle of grasses was on the head of the deceased. Her husband remained working at his agricultural field. When she reached near the 'Arhar' field of Sonveer at about 5:30 PM, all the three accused persons were there and they forcibly dragged the deceased in the 'Arhar' field and all of them raped her daughter one by one and during the incident she was covered by the accused persons one by one and threatened by country made pistol. She raised alarms and her husband and other villagers who were working in the nearby fields reached there and saw the incident. The accused persons ran away from there. The girl was lying naked in the 'Arhar' field and 'Chunari' was puting her mouth, so she could not raise alarms.
11. PW-2 Govardhan has stated that when he heard the alarms raised by his wife Smt. Chameli, he reached to the 'Arhar' field of Sonveer. He was working in his field, situate near the 'Arhar' field of Sonveer. He has also repeated the fact that her wife and daughter had collected grass from the field and were coming back to the house and in the way this incident took place. When he reached at the 'Arhar' field of Sonveer along with Dharampal, Gangu, Imrat, Shanti and her husband Mahaveer and others who were working in their fields near the place of occurrence, he saw that all the accused persons namely Mukesh alias Sonu, Kuldeep alias Bholu and Yogendra were stabbing her daughter by knife and ran away when they saw the village people there.
12. PW-3 Dharampal Singh has stated that he was cutting fodder in his agricultural field situate near the field of Govardhan. He heard the alarm situate at a distance of about 50 yards from the place of occurrence. Govardhan, Rajendra, Gangu, Imrat, Shanti and Mahaveer were also with him. They were also working in their fields near the place of occurrence. When they reached to the 'Arhar' field of Sonveer they saw that Mukesh alias Sonu, Kuldeep alias Bholu and Yogendra were stabbing the daughter of Smt. Chameli by knife. The deceased was lying in the naked condition in the 'Arhar' field and 'Chunari' was put in her mouth. The accused persons ran away when they saw, them.
13. The motive behind the occurrence as disclosed by PW-1 Smt. Chameli was that about 4 days back to the incident in question co-accused Sonu had chased her daughter and her daughter had complained to her whereupon she and her husband had complained to Shreepal, the father of accused sonu. Shreepal has assured Govardhan that in future Sonu would not do any act against his daughter. This annoyed Sonu and with the help of other two associates Yogendra Kuldeep alias Bholu, he had committed this crime. A very lengthy cross-examination was made by the defence from these witnesses but no question was asked about the motive alleged by the PW-1. In his statement under Section 313 Cr. P.C. the appellant denied the motive alleged by the prosection. Question, Nos. 7 and 8 were put to him regarding motive. He replied that the motive alleged by the prosecution was false. As we have discussed above, the motive j has been proved by Smt. Chameli. Therefore, the prosecution version regarding motive is believable and we think that this was sufficient for committing this crime. The prosecution version is that the appellant Kuldeep alias Bholu and Yogendra were associates of Mukesh alias Sonu. All the three accused persons were resident of village Nayabansh police station Gulaoti district Bulandshahr. The complainant was resident of village Samkola. There Was no other enmity between the parties. The appellant so could not say any reason for false implication Therefore, there were least chances of false implications.
14. In their cross-examinations, all the three witnesses have given details of the occurrence and satisfactorily replied the question put to them. PW-1 Smt. Chameli has stated at page 4 that her agricultural filed was situate towards east of 'Arhar' field of Sonveer and in between their fields there was a filed of Omveer. The Investigating Officer has shown the adjoining field in the site plan Ext. Ka-7. The 'Arhar' field of Sonveer has been shown towards south of 'Jwar' field of Jaswant and towards north of 'maize' field of Sonveer, towards east of the place of occurrence there was grove of Mahipal and towards west there was 'Jwar' field of Sonveer himself, towards south-east and west portion of agricultural field of Sonveer there was Nali. PW-1 has further stated at page 4 that at the time of incident 'Jwar' crop was there on the field of Omveer. The height of 'Arhar' crops on the field of Sonveer was near to the normal height of men. The 'Jwar' and 'maize' crops towards outh-west side of 'Arhar' crop had also almost the same height. The learned Counsel for the appellant has argued that no one could see the incident from his field surrounding Arhar field of Sonveer due to the height of the crops. But this argument is not based on evidence. This is specific case of prosecution that hearing the alarms raised by Smt. Chameli who was present on the spot, her husband and other village who were working in the nearby fields, reached there and saw the incident. This is not the case of prosecution that they saw the incident from their fields side. Further at page 5 Smt. Chameli has stated that when she reached near the 'Arhar' field of Sonveer, she saw that sonu son of Shreepal was standing near the med of the field alongwith his two associates. Suddenly, they caught hole the deceased and dragged , her about 15 steps in the 'Arhar' field. One. of them put country made pistol on her temporal region. Mukesh put off the salwar of deceased and put 'Chunari' in her mouth and committed rape. After that Kuldeep alias Bholu and Yogendra also committed rape on the deceased one by one. The accused persons in that sequence one by one covered her and threatened by country made pistol. Due to fear and shock she became the silent spectator of the gruesome crime. But suddenly she cried and the persons working in the nearby fields reached their including her husband. At page 7 she has stated that first of all Sonu had stabbed her daughter and after that Kuldeep alias Bholu and after that Yogendra stabbed her. All the accused persons have knives; and Katta with them. When all the accused persons were stabbing the deceased she had raised alarms. When her husband and other village people reached there the accused persons ran away and she took out 'Chunari' from the mouth of the deceased and seeing the condition of her daughter she became unconscious. She was in a position to see the things but was not in a position to talk. In such situation this was not unnatural. Due to shock and fear the semi-unconsciousness generally occurs. She has further stated on the same page that since 'Chunari' had been put in her daughter's mouth therefore, she could not speak. When she regained consciousness she came to know that her daughter had been shifted to hospital. PW-2 Govardhan and PW-3 Dharampal have stated that the deceased was immediately shifted from the place of occurrence to Savita Nursing Home, Gulaoti where the Doctor declared her dead. The FIR Ext.Ka-2 was lodged by Govardhan at the police station. PW-1 has stated at page 9 that she had also reached the police station where her husband and other village people were present. She narrated the entire story to the police. She had also stated the police about the motive alleged earlier. The dead body was also taken to the police station from the Nursing Home by PW-2 and other village people. At page 9 and 10 PW-1 has stated that when she reached the police station, the dead body has already been sealed by the police.
15. In his cross-examination at page 4, PW-2 Govardhan has stated that when he reached the 'Arhar' field of Sonveer he saw that his wife was lying unconscious in the Nali and she could not gain consciousneess even after 5 or 6 minutes. At gain he has stated that when his wife could not gain consciousness he raised alarms and Rajendra, Shanti, Imrat and others reached there. They made the search of the girl and found her lying in the naked condition in the 'Ahrar' field of Sonveer.
16. The learned Counsel for the appellant has argued that there is a major contradiction in the statement of PW-1 and PW-2. According to the PW-1 she became unconscious when her husband and other village people reached there but according to PW-2 she became, unconscious before his reaching there. But this is not the major contradiction. This proves that Smt. Chameli, along with her daughter was present there at the time of incident and hearing her alarms, her husband and other village people working in the nearby field reached there. PW-2 has further stated that leaving his unconscious wife there, he shifted the deceased to the Nursing Home Gulaoti with the help of the village people, where she was declared dead. He has further stated at pace 6 that he haa taken her daughter from the place of occurrence in a Bullock Cart and he engaged taxi outside of his village and went to Kasba Gulaoti in Savita Nursing Home. First of all he had consulted Doctor Hasrat of his village who was resident of village Mahantgarhi and when he advised to shift the victim to better hospital, he proceeds to Kasba Gulaoti. In the entire process about two hours time had been spent. When the Doctor of the Nursing Home at Gulaoti have declared the victim dead, he went to the police station Gulaoti along with the deceased and lodged the FIR there at 8:15 PM. Thus, there was no delay in lodging, the FIR. At page 8 PW-2 has denied the suggestion of the defence that the FIR was lodged in the midnight.
17. In the FIR Ext. Ka-2 only accused Mukesh alias sonu was named, later on in his statement under Section 161 Cr. P.C. PW-2 named other two persons Kuldeep alisd Bholu and Yogendra. At page 8 question was put by the Court to him and he replied that at the time of dictating the FIR to Rakesh Kumar of his village he could not remember the name of Kuldeep and Yogendra and that is why they were not named, but this was mentioned there that Sonu and his two associates had committed crime. As we have discussed earlier, the accused persons were resident of another village, therefore, in such a shocking situation where the young daughter of the father was raped and murdered by three person and dead body was lying before him, this was but natural for the shocked father to be mentally disturbed and that is why he could not immediately name the other two accused persons in the FIR, but during interrogation all the witnesses disclosed the names of all accused. No. suggestion or question has been put to PW-2 that he was not acquainted with the accused persons prior to the incident in question. Therefore, the explanation given by the PW-2 is acceptable.
18. PW-3 Dharampal has stated at page 3 than his agricultural field was situate towards north of the field of Jaswant where he was working and from where he had reached the spot. The site-plan Ext. Ka-7 prepared by the Investigating Officer shows that the agricultural filed of Jaswant was situate towards north of the field of Sonveer. Thus, there was a gap of only one field between the place of occurrence and field of PW-3. At page 4 he has stated that he had already told the Investigating Officer that after hearing the alarms raised by Smt. Chameli, he had reached the spot. He had not told the Investigating Officer that he had reached there by hearing the alarm raised by Govardhan. He had also admitted this fact that there was a Nali towards south-east and west, of the field of Sonveer and the naked body of the deceased was found about 14 steps inner side in the agricultural field of Sonveer. At page 5 he has also stated this fact tnat when the 'Chunari' was taken out from the mouth of Km. Geeta the word Sonu had come out from her mouth and after that she could not speak. Smt. Charreli fell down on the earth and became unconscious. Jasveer had carried the victim on his back to her house from where she was shifted for medical aid. First of all, Dr. Hasrat of the village was consulted and immediately she was shifted to Gulaoti Nursing Home. He had also gone to Nursing Home on bicycle. He remained in the Nursing Home for about 10 minutes and, at that time the victim was conscious. The learned Counsel for the appellant has argued that when the victim was conscious in the Nursing Home, why she did not tell the name of the appellant? In this connection we have discussed earlier the statement of PW-1 and PW-2 that the victim was not in a position to speak. The position of injuries also support the prosecution version because the deceased had sustained several wounds on the Chest, abdomen and at different places. The wounds were deep and enough bleeding had occurred. In the opinion of Doctor also she died due to shock and haemorrhage as a result of ante-mortem injuries. The liver, intestine, pleura, peritoneum and right lungs were cut down. In such shocked and injured situation no one could be expected to speak. At page 6 he has stated that he had also gone to the police station and after his visit, the FIR was lodged there. At page 7 he has stated that, after the incident and before lodging the FIR he had no talks with Govardhan regarding this incident. A specific question was put by the Court and at page he replied that when he reached the spot the appellant Kuldeep (who was present in the Court at that time) was stabbing the deceased and his two assicuates Mukesh and Yogendra were also there.
19. PW-8 Sub Inspector Upendra Kumar, the Investigating Officer has stated that on his direction Sub Inspector D.D. Upadhyay had prepared the inquest and 'Chunari' which had been put in the mouth of the deceased, was taken by him in the presence of Dharamveer and Ajay Kumar. At page 12 this witness had stated that the 'Chunari' was taken cut from the mouth of the deceased in his presence. PW-1 Smt. Chameli and PW-3 Dharampal have stated that the 'Chunari' put in the mouth of deceased had been taken out by Smt. Chameli herself at the place of occurrence. On the basis of this contradiction the learned counsek for the appellant has argued that the presence of eye-witnesses on spot became doubtful. He also argued that if the version given by the eye-witnesses is found to be correct then the Investigation was tainted. But the position has been clarified by Sub Inspector D.D. Upadhyay PW-11 himself. In his very examination-in-chief he has stated that 'Chunari' was given to him by the village people at the time of preparation of inquest and had told him that the said 'Chunari' had been put by the accused in the mouth of the deceased at the time of committing rape and murder. Thus, there remains no doubt in the fact that the 'Chunari' put in the mouth of deceased at the time of crime was taken out by PW-1 Smt. Chameli as has been stated by the prosecution witnesses and it was handed over to the police. Moreover, this is not believable that without taking out the 'Chunari' from the mouth of the deceased she was shifted to the hospital and even in the hospital the same could not be removed and in the same position the body was shifted to the police station. As is evident from the statement of the prosecution witnesses, the Victim was alive when they reached to the place of occurrence. She whispered the name of Sonu and after that she could not speak. It appears that while in the way to the hospital she succumbed to her injuries.
20. In the inquest report, the Sections of IPC were not mentioned in the front page. PW-11 Sub Inspector D.D. Upadhyay has admitted this fact. On this thesis, the learned Counsel for the appellant has argued that till the preparation of the inquest the detauks if the crime were not know and that is why the Sections of the crime were not noted down by the police officers in the inquest. But this argument is baseless because at page 2 of the inquest, the Sections of the Indian Penal Code 376, 302 have been mentioned. It appears to be a clerical mistake by the police. The learned Trial Court has rightly observed that merely on the oasis of this clerical mistake it could not be presumed that till the preparation of the inquest the accused were not known and the FIR had not been lodged.
21. It was also argued by the learned Counsel for the appellant that the chik report was sent to the Chief Judicial Magistrate, Bulandshahr on 22.8.2003 and a special report was also delayed, therefore, it was also, clear that the report was ante-timed. But this argument has also no force. The learned Trial Court has rightly observed that delay in sending the report is not fatal for the prosecution as has been held in the case of Sunil Kumar v. State of Rajasthan 2005 (1) SCJ 487 and no question was put to the Investigating Officer regarding delay in sending the report to the Magistrate. The statement of Smt. Chameli was not recorded by the Investigating Officer at the police station though she was present at the time of preparation of inquest report. The Investigating Officer has explained at page 7 that at that time the mental condition of the lady was not satisfactory therefore, she could not be interrogated at the police station. At page 15 the Investigating Officer Upendra Kumar has admitted this fact that at the Place of occurrence the plants of Arhar were broken but he could not show it in the site-plan. The. law is very clear on this point. The learned Trial Court had discussed this fact also the judgment. The learned Trial Judge has rightly relied on a number of cases in which it has been held that on account of defective and scanty investigation, the prosecution case cannot be thrown but and accused cannot be, given benefit of the same because it would tantamount to play in the hands of police as has been held in the case of Karnail Singh v. State of Madhya Pradesh 1995 (6) JT 437.
22. The accused persons did not claim their identification. They did not dispute their identity. Nowhere, it has been suggested that they were not known to the prosecution witnesses. The learned Counsel for the appellant has argued that no injury was found on the private part of the deceased, therefore, there was no possibility of rape. But this argument is also not acceptable because in the light of prosecution evidence it is clear that the victim was forcibly dragged in the 'Arnar' field by the accused person and county made pistol was put on the temporal region of her mother and as the victim was raped by three young persons, hence, she was not in a position to offer any resistance and consequently, no injury on the private part sustained by her. The learned Trial Court has rightly cited the cases of Dastgir Sab v. State of Karnataka AIR 2004 : AIR SCW 518 and Guru Charan v. State of Karnataka , in which it has been observed; that it is not necessary that the injury must be there on the private part of the victim to prove the. rape. There was fault on the part of the Doctor conducting the post-mortem examination. He did not examine the hymen of the deceased whether it was intact or torn. The learned Counsel for the appellant has argued on the basis of pathology report that no spermatozoa was found in the slide. This argument is also not acceptable. The learned Trial Court has rightly relied upon In the case of State of Himachal Pradesh v. Lekhraj 2000 (3) SCC 247, in which it has been held that discovery of dead or mobile spermatozoa in the vagina or in the servix of the prosecutrix is not a conclusive proof that the victim was not subjected to sexual intercorse. In the Indian spcoety no parent can scoop down to. this level to putforwar their young unmarried daughter levelling the charge of rape on some innocent persons without am ill-will. The 'salwar' and some other articles of the victim had been sent to the Forensic Lab, Agra. The report is Ext. Ka-22. The report shows that on the 'Salwar' the human semen was found. This was sufficient to prove the prosecution case that the victim was raped. A funny defence has also been taken by the appellant in his statement under Section 313 Cr. P.C. which cannot be accepted. The statement is quoted below:
Salwar mein Veerya, Darogaji ne vadi se milkar apne pas se lagaya hai.
23. On the pointing out of the appellant, the police recovered a knife, from the 'Jwar' field situate towards north to the place of the occurrence. This recovery was made on 12.9.2003 whereas the incident had taken on 12.8.2003. The Investigating Officer Upendra Kumar has proved this recovery. The site plan of the recovery, place is Ext.Ka-12. PW-10 constable Shepdn singh was also witness of this recovery. He has proved the same. In their cross-examinations nothing could be found against the prosecution regarding the recovery of the knife.
24. It has been argued by the learned Counsel for the appellant that no independent witness of recovery has been produced by the prosecution hence, the recovery of knife on the pointing out of the appellant is highly doubtful. In our opinion this argument has no force because in the recovery memo Ext.Ka-11, itself, the Recovery Officer has clearly mentioned that he tried his best to get public witnesses but no one was ready to be a witnesses due to fear. Now a days no one likes to indulge in the matters of others due to his safety or other reasons. In the case of Krishna Mochi v. State of Bihar , following observations have been made by the Hon'ble Apex Courtr:
It is a matter of common experience that in the recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher Even in ordinary cases, witnesses are not inclined to depose for one or other reasons. They do not have courage to depose against an accused because of threats to their life.
25. In the case of Appa Bhai v. State of Gujrat 1988 (Supp.) SCC 241, the following observation have been made:
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 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.
26. In the case of State (NCT of Delhi) v. Navjot Sandu , the Hon'ble Apex Court has made it clear that if recovery is made on the basis of information given by the accused persons and particularly when the recovery is made on their pointing out, the entire facts disclosed by the accused persons are admissible in evidence. In the case of Antrt Singh v. State of Rajasthan , it has been observed by the Hon'ble Apex court that where the evidence of I.O. who recovered the material object is convincing, the evidence as to recovery need not be rejected on the ground that seizure witness did not support the prosecution version. In the case of State Government of N.C.T. of Delhi v. Sunil 2001 SCC (Crl.) 248, It has been observed by the Hon'ble Apex Court that the Cour has to consider the evidence of the Investigatin Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. Thus, the recovery of knife made by the Investigating Officer is fully proved and the learned Trial Court has rightly relied on it.
27. Lastly, the question that arises for serious consideration is whether imposition of death penalty to accused Kuldeep alias Bholu is justifies in the facts and circumstances of this case.
28. Under the old 'Code of Criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life time could be awarded in exceptional circumstances, that too after advancing special-reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A. constitutional Bench of the Supreme Court in the case of Bechan Singh v. State of Punjab AIR 1980 page 898. while upholding the constitutional aridity of the death sentence voiced that as a legal principle death sentence is still awardable it only in rarest of rare cases when the alternative option. of lesser sentence is unquestionably foreclosed.
29. The Apex Court in the case of Ram Pal v. State of U.P. 2003 (47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident. Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make then see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance. In the case of Indrajit Mallah v. State of Uttar Pradesh 2005 (3) JIC 298 (All), the Division Bench of this Court has also reduced sentence to life imprisonment in which servant had killed the son of his master aged about 6 years for some dispute between them.
30. Considering the over all circumstances of the case, this! case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life tern stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellant Kuldeep alias Bholu would meet the ends of justice.
31. We, therefore, reduce the sentence of death penalty of appellant Kuldeep alias Bholu to imprisonment for life.
32. In the result:
(A) The appeal of Kuldeep alias Bholu is dismissed with the modification that the death penalty imposed by learned Trial Court on the appellant is reduced to life imprisonment.
(B) The reference No. 9 of 2005 stands rejected.
(C) The appellant Kuldeep alias Bholu is in Jail. He shall remain in jail to serve out the sentence awarded by the learned Trial Court and confirmed by us with the above modification.
33. The appeal is dismissed of accordingly.