Gujarat High Court
Hirabhai Shankerbhai Raval vs State Of Gujarat on 26 July, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.A/689/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 689 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HIRABHAI SHANKERBHAI RAVAL.... Appellant
Versus
STATE OF GUJARAT.... Respondent
==========================================================
Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant
MR JM BUDDHBHATTI, ADVOCATE for the Appellant
MR RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for the Respondent
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 26/07/2017
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ORAL JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. The challenge in this appeal preferred under Section 374 of the Code of Criminal Procedure, 1973 ("the Code"), is against the judgment and order of conviction dated 10.08.2010, passed by the learned Additional Sessions and Fast Track Judge, Gandhinagar, in Special Atrocity Case No.35 of 2008, whereby the appellantaccused has been convicted of the offences punishable under Sections 302 and 376 of the Indian Penal Code, 1860 ("the IPC"), as well as Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the Atrocities Act").
2. The appellant has been sentenced to suffer rigorous imprisonment for life and pay a fine of rupees two thousand and rigorous imprisonment for one year in default thereof, for the offence punishable under Section 302 of the IPC. For the offence under Section 376 of the IPC, the Page 2 of 54 HC-NIC Page 2 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT appellant has been sentenced to suffer rigorous imprisonment for ten years and to pay a fine of rupees one thousand, in default of which, he would suffer rigorous imprisonment for six months. For the offence under Section 3(2)(5) of the Atrocities Act, the appellant has been convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of rupees five hundred, in default of which, he would undergo rigorous imprisonment for three months. All the above sentences are to run concurrently.
3. The case of the prosecution, based upon the compliant at Exhibit 27, is to the effect that when the complainant, Hargovanbhai Somabhai Parmar was taking a bath in the backyard of his house at about 9:00 am on 26.07.2008, he heard Ravina alias Kali, the daughter of his cousin brother Dineshbhai Kantibhai Parmar, as well as her brother and sister, shouting loudly. The complainant and one Savjibhai Shankarbhai Parmar, resident of the same Mohalla went running to the house of Dineshbhai Kantibhai Page 3 of 54 HC-NIC Page 3 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT Parmar and saw that Pushpaben, wife of Dineshbhai, aged 37 years (hereinafter referred to as "the deceased") was lying dead on a cot in a bleeding condition. They saw that her throat had been cut with some sharp weapon and her head had tilted towards her right shoulder. The quilt and pillow were soaked with blood. A blood stained axe was lying under the cot. Next to the cot and towards the wall, a driving licence was lying which was also stained with blood. The driving licence was in the name of Raval Hirabhai Shankarbhai, resident of Vasai, Taluka:
Vijapur, District: Mehsana, who is the appellantaccused. On questioning Ravina, the complainant was informed that the accused had illicit relations with the deceased and used to visit the house of the deceased frequently when Dineshbhai, the husband of the deceased, was not present. The accused had visited the house of the deceased at 9:00 pm the previous night, in the absence of her husband. Some time ago, during the festival of Dhuleti, the accused had hit the deceased with a "Paatli" (a wooden Page 4 of 54 HC-NIC Page 4 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT implement), for which the deceased had filed a complaint before the Vijapur Police Station. Nursing a grievance regarding that, the accused used to harass and threaten the deceased. The previous night, when the accused had visited the house of the deceased, he had given an axe blow to the deceased when she was sleeping on the cot and killed her on the spot. Thereafter, the accused had left the house of the deceased through the backdoor.
4. On receiving this complaint, the investigative machinery was set into motion. After the investigation was over and sufficient evidence was collected against the accused, a Chargesheet was filed in the Court of the Judicial Magistrate, First Class, Mansa. As the case was triable only by a Court of Sessions, the learned Judicial Magistrate committed the case to the Sessions Court.
5. Initially, the Charge at Exhibit 7 was framed under Section 302 of the IPC and Section 3(2)(5) of the Atrocities Act, against the appellant on Page 5 of 54 HC-NIC Page 5 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT 16.04.2009. Thereafter, on the basis of the statement of Dr.Nirmalsinh Narendrasinh Rathod, which revealed that the deceased had been subjected to rape, the prosecution moved an application at Ex.17 to add the charge of Section 376 IPC. The application was allowed and the Charge of Section 376 IPC, came to be added on 30.05.2009, vide Ex.8, whereby a revised Charge was framed against the accused.
6. In support of its case, the prosecution examined sixteen witnesses and adduced voluminous documentary evidence. After examining the entire oral and documentary evidence on record, the Trial Court arrived at a conclusion that the charge against the appellant stood proved on the basis of circumstantial evidence as there were no eyewitnesses to the crime. After discussing the entire evidence on record the Trial Court found that the chain of evidence linked the accused inextricably to the commission of the offence and proved his guilt beyond reasonable doubt. It, therefore, rendered the above mentioned judgment and order of conviction and Page 6 of 54 HC-NIC Page 6 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT sentence that is the subjectmatter of challenge before this Court.
7. In order to examine the veracity of the conclusion arrived at by the Trial Court, it would be fruitful to notice briefly, the salient features of the oral and documentary evidence brought on record.
8. PW1, Dr.Nirmalsinh Narendrasinh Rathod, has performed the postmortem on the body of the deceased. He has deposed at Ex.10. It was on the basis of his evidence that the Charge under section 376 IPC was added. He has described the condition of the body as well as the injuries found thereupon, which are corroborated by the injuries described in Column No.17 of the post mortem report prepared by him at Ex.12. The description of the injuries is as below:
"A CLW measuring 10 CM x 3 CM x 7 CM present on left side of neck extending upward up to mandible and downward upto to clavicle, laterally up to trapezius muscle medially up to involving trachea, esophagus and all muscles.
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CLW measuring 2 CM x 1 CM x 1 CM over (Rt.) sternoclavicular joint.
No abrasions or scratches present on genital region or body."
The above injuries were stated to be ante mortem. This witness states that the deceased had been subjected to sexual assault before death; therefore, during the postmortem examination, samples of blood, nails, axillary hair, pubic hair, vaginal swab middle and vaginal swab deep, were taken from the body of the deceased and handed over to the police for forensic analysis. The cause of death, as per the deposition of this witness as also stated in the postmortem report, is due to "haemorrhagic shock due to cut injury over left side of neck including trachea, esophagus, vertebra, neck vessels, muscles of neck". This witness states that the external injuries described in Column No.17 of the postmortem report can be caused by a heavy and sharp weapon such as an axe. On being shown the weapon of offence, this witness states that the said injuries could have been Page 8 of 54 HC-NIC Page 8 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT caused by this weapon. He adds that the internal injuries described in Column No.20 of the post mortem report could also have been caused by the Muddamal axe shown to him in the Court. The external and internal injuries suffered by the deceased would, in the ordinary course of nature, be sufficient to cause the death of a person. He further states that the nature of the injury inflicted on the neck of the deceased shows that more than one blow was inflicted.
9. In crossexamination by the defence, this witness states that there were no injuries on the body of the deceased to indicate that a scuffle took place. However, he adds that looking to the nature of the injuries described in Column No.17 of the postmortem report, there is a possibility of blood from the body of the deceased being sprayed upon the clothes of the accused.
10. On further examinationinchief by the Public Prosecutor, this witness states that the report of the Serological Analysis showed that there Page 9 of 54 HC-NIC Page 9 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT was blood of BGroup on the samples of hair, nails, pubic hair, etc. of the deceased. The vaginal swab was of the Bloodgroup `A'. The Serological Report further indicates that the deceased had been subjected to sexual intercourse before her death.
11. On further crossexamination by the defence, this witness states that the vaginal swab was of AGroup which bloodgroup could be of her husband.
12. The postmortem report at Ex.12 corroborates the oral evidence of PW1 in all respects.
13. PW2, Dr.Dharmisthaben Govindbhai Gosai, is the Medical officer serving at Mansa Civil Hospital. She was on duty on 27.07.2008 when, at about 7:00 pm, the accused was brought by the police for medical examination. She examined the accused after taking his consent found that he was conscious and cooperative. He himself stated that after having sexual intercourse, he had wiped himself. This witness has issued a Certificate of the injuries received by the Page 10 of 54 HC-NIC Page 10 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT accused, which is to be found at Ex.21. The oral evidence of this witness is corroborated by the said certificate. This witness has described the injuries found on the person of the accused and the examination done by her, as below:
"General Examination:
* Bath taken after last intercourse * Scratch mark present over the left knee joint about 4x0.5 cm in size * Abrasion over the lateral aspect of the knee joint.
* Scratch mark over the left leg below knee joint.
* Scratch mark over the right stain of tibia.
* Scratch mark over the right back of thigh.
* Multiple scratches over the lateral aspect of the right side of the neck. * Scratch mark over the left side of cheek and neck.
Local Examination:
No smegma over the glans penis. No tear of laceration around glans penis. I had taken sample and sent it to FSL for analysis which are as following.
(1) Blood
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(2) Nails (both)
(3) Axil Hair
(4) Pubic Hair
(5) Salivary swab
(6) Semen"
14. This witness states that the scratch injuries found on the neck and cheeks of the accused could have been caused by finger nails in a scuffle when the victim was trying to save herself. The graze injury on the left knee could have been caused by rubbing against a hard surface. This witness further states that if a person is trying to rape someone and the victim tries to save herself, injuries such as those received by the accused on his neck and cheek could be caused.
15. In crossexamination, this witness denies the suggestion that the said injuries, that could be sustained in a scuffle were not found on the body of the accused.
16. The complainant, Hargovanbhai Somabhai Parmar, has been examined as PW3 at Ex.26. He is not an eyewitness of the incident but arrived at the scene of offence after being intimated about it Page 12 of 54 HC-NIC Page 12 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT by Ravina, daughter of the deceased. He states that on 26.07.2008, at about 9:00 am, when he was taking a bath, he heard Ravina and her brother and sister, shouting. He, along with Savjibhai Shankarbhai Parmar, went running to the house of the deceased and saw her lying dead in a pool of blood on the cot, with her neck cut with a sharp instrument. The head of the deceased had tilted to the right side and a bloodstained axe was lying under the bed. The bedclothes and pillow were soaked with blood.
At the side of the cot, towards the wall, a driving licence stained with blood, was found. This was the original driving licence of the accused and had his photograph on it. This witness states that upon inquiring from Ravina about the incident, she replied that the accused came to their house at about 9:00 pm the previous day and stayed the night, as there was a loveaffair between the accused and the deceased. The accused used to visit the house of the deceased frequently. This witness narrates that the deceased had filed a case Page 13 of 54 HC-NIC Page 13 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT against the accused on the festival of Dhuleti when the accused had hit her on the head with a "Paatli". The accused, nursing a grudge against this, used to threaten the deceased. The accused came to the house of the deceased and killed her by inflicting a blow with a sharp weapon and ran away from the backdoor. The complainant, thereafter, informed Dineshbhai, the husband of the deceased and the police regarding the incident.
17. This witness was subjected to crossexamination, during which he stated that he came to know regarding the incident at about 8:30 am in the morning and filed the complaint at about 11:00 o'clock, after consulting his relatives. He denies the suggestion that he was tutored by his relatives regarding the manner in which to file the complaint. He states that his house is about three feet away from the house of Dineshbhai, and he could hear the shouts clearly when he was taking a bath in his backyard. He further states that he saw the dead body of the deceased from a distance of two to two and a half feet. He Page 14 of 54 HC-NIC Page 14 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT denies the suggestion that the licence of the accused was found from the quilt of the deceased. He further denies the suggestion that he had not seen the accused before this incident, though he admits that he did not see the incident taking place. He states that he was informed about the incident by the children of the deceased. He admits that he has not seen the accused and deceased talking together. This witness denies the suggestion that he is deposing falsely.
18. Ravina Dineshbhai Parmar, daughter of the deceased, who narrated the incident to the complainant, was aged about thirteen years on the date of her deposition. She has been examined as PW4 at Ex.28, after the Trial Court satisfied itself that she was capable of understanding the questions put to her as well as the sanctity of the oath and was capable of giving evidence. This child witness states that the incident took place on 25.07.2008. On the day of the incident, all the four children of the deceased, including herself, were at home Page 15 of 54 HC-NIC Page 15 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT with their mother. As there was a death in the family of their father, he had gone to Ahmedabad. That night, at about 9:00 pm, the accused came to their house. The deceased served tea to the accused and took some tea herself. Thereafter, all of them had dinner and went to sleep. This witness, along with her three brothers and sisters slept on a different bed and the deceased slept on another bed in the same room. The accused slept on same bedding on the floor. The door of the room was closed. When this witness woke at 9:00 am, she saw that her mother was lying on the bed in a pool of blood and a blood stained axe was lying under the bed. She started screaming upon which her uncle, the complainant, and other neighbourers, came rushing there. This witness states that when she awoke in the morning, she did not see the accused in the room. She further states that the accused frequently used to visit the house when her father was not at home. She, therefore, recognises the accused. She has identified the accused in the Court. When her father returned Page 16 of 54 HC-NIC Page 16 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT at about 10:00 am next day, she narrated the incident to him. The police questioned her and showed her the axe, which is the Muddamal weapon of offence, which she has identified as being the same one that was lying under the bed of the deceased.
19. This child witness was subjected to stiff cross examination. In spite of her young age, she has steadfastly stood by her version. She has fervently denied the suggestion that she was tutored to depose in the Court by any person, including her father. She has denied the suggestion that she has not stated certain things in her deposition that the has stated in her statement before the police. This witness has reiterated that she has previously stated that the accused came to her house at 9 o'clock at night and that she had not stated that he slept on the bed. She has further denied that she has not stated that the axe was lying under the bed. This witness further states that she has not `seen the incident taking place and adds that she is not accustomed to awaking at night.
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She further states that nobody knows where her father used to keep the axe. She denies the suggestion outright that the accused had not come to her house and that she is stating falsely.
20. The husband of the deceased, Dineshbhai Kantibhai Parmar, has been examined as PW5 at Ex.29. He states that he was not present at home on the day of the incident as he had gone to Ahmedabad, on account of the death of a relative. He was informed of the incident by his aunt, Champaben, at Ahmedabad, who had received a telephone call regarding the death of his wife. When he came home the next morning, he saw his wife lying dead on the cot with her neck cut and the pillow soaked with blood. Upon asking his daughter, Ravina regarding the incident, he was informed that the accused had come to the house the previous night at 9:00 pm. The deceased had made tea for him and given him food. The deceased and the accused were talking and there was an altercation between them. Thereafter, the children went to sleep and the Page 18 of 54 HC-NIC Page 18 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT accused slept on the ground under the cot of the deceased. When PW4 got up in the morning, she saw the dead body of the deceased and started shouting. This witness was informed by his daughter that the accused had killed the deceased. He states that the bloodstained axe was lying on the side of the bed and the driving licence of the accused was also lying there. This witness states that the accused knew that the deceased belonged to a Scheduled Caste. He states that he came to know from his daughter that the accused used to visit his house frequently in his absence and talk to the deceased. This witness further states that on one occasion, he had followed his wife the deceased and seen her with the accused who, upon seeing him, ran away. On Dhuleti day, when the deceased came home, he had seen that she had an injury on her forehead. Upon asking, she informed him that the accused had hit her with a "Paatli". The deceased had filed a compliant in the Mansa Police Station in this regard. Even after this incident, the accused continued to Page 19 of 54 HC-NIC Page 19 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT visit the house of the deceased.
21. In crossexamination, this witness states that the fact that the accused used to visit the house of the deceased was hidden by her from him. He further states that he was aware that his wife had an illicit relationship with the accused. He denies the suggestion that he used to beat the deceased on account of this or there were quarrels between him and the deceased regarding this. This witness further states that in the case under the Atrocities Act, filed by the deceased against the accused, the latter was acquitted and no appeal was filed by the deceased against the decision. This witness denies the suggestion that the deceased had kept the licence with the photograph of the accused with her before the date of the incident. He admits the fact that he is not an eyewitness to the incident.
22. From the testimony of this witness, who is the husband of the deceased, the aspect of the illicit relationship of the deceased with the Page 20 of 54 HC-NIC Page 20 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT accused is brought out.
23. PW6, Jayantibhai Ambalal Patel, is the Panch witness of the Panchnama of the Scene of Offence (Ex.34). It emerges from his testimony that the house of the deceased consisted of one room only. The dead body of the deceased was lying on one cot on a quilt which was bloodsoaked. There was a stool on which mattresses and clothes were kept. There were bloodstains on the clothes as well as on the mattresses. The walls near the cot of the deceased were bloodstained. Even the barrel used for storing foodgrains had blood stains on it. The driving licence with the photograph of the accused, which was found lying near the cot was also stained with blood.
24. The description of the scene of offence as given the Panchnama corroborates the oral testimony of the complainant in this regard.
25. PW7 Becharbhai Chhaganbhai Parmar is the Panch witness regarding the seizure of the shirt worn by the daughter of the deceased at the time of the incident. His deposition is at Ex.36.
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Natwarbhai Atmaram Parmar, who is a Panch witness of the seizure of the clothes worn by the deceased at the time of the deceased, has been examined as PW8 at Ex.39. He has supported the case of the prosecution. PW9, Bhalabhai Maghabhai Raval is the Panch witness of the Arrest Panchnama, whose deposition can be found at Ex.43. He has stated that on 27.07.2008, he was called to the Mansa Police Station and found one person in the custody of the police. This person was questioned in the presence of the Panch witnesses. He disclosed that his name is Hirabhai Raval (the accused). This witness describes the clothes worn by the accused, which were seized by the police. This witness also states that he has signed upon the Arrest Panchnama (Ex.44). He has identified his signatures on the slips that were inserted in the sealed box containing the clothes of the accused. This witness has proved the Arrest Panchnama at Ex.44.
26. PW10 Vinodchandra Kantilal Tanna, Circle Police Inspector, has prepared the map of the scene of Page 22 of 54 HC-NIC Page 22 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT offence. He has deposed at Ex.47. The map is at Ex.48 and illustrates the placement of the furniture and household goods contained in the oneroom house of the deceased. It also shows the placement of the weapon of offence.
27. PW11 Jasubhai Manilal Chaudhary is the Taluka Development Officer who has issued the Caste Certificate to the deceased. His deposition is at Ex.49. He states that he has issued the Caste Certificate to the deceased who belongs to the Hindu Chamar caste. The Caste Certificate has been produced at Ex.50 and has been proved by this witness.
28. PW12 Kishore Arvindkumar Sharma is the Scientific Officer who visited the scene of offence. He has taken away certain articles from there in the presence of Panch witness for sending them for forensic analysis. His deposition is to be found at Ex.53.
29. PW13 Vinubhai Khimabhai Delvadia is the Police Station Officer who has lodged the FIR. PW14 Popatji Pratapji Chavda is the Police Officer Page 23 of 54 HC-NIC Page 23 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT who received the telephonic information regarding the incident and noted it down in the Station House Diary. PW15 Manuji Jawanji is the Police Station Officer who produced the "Janwa Jog" register. These are formal witnesses and nothing much turns upon their depositions.
30. The Investigating Officer Bakulbhai Haribhai Gameti, has been examined as PW16 at Ex.66. He describes the scene when he arrived at the place of incident. He states that the Panchnama of the Scene of Offence was drawn up in the presence of Panch witness. There were bloodstains on the wall and samples were taken for examination. There were stains of blood on the floor as well. The control sample and bloodstained samples were taken from a distance of two feet for forensic examination. The bloodstained axe was also sent for examination. The procedural formalities followed by this witness have been described and it has been stated that he has taken statements of concerned persons. This witness states that he was informed by the child witness that there was a quarrel between the Page 24 of 54 HC-NIC Page 24 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT accused and the deceased. The first statement to be taken by him was that of the child witness. He further states that after the filing of the first Chargesheet, it was found that the accused had committed rape on the deceased, which fact emerged from the evidence of the doctor.
31. The Serological Report of the Forensic Science Analysis is at Ex.72. The nails, axillary hair and pubic hair of the deceased showed signs of human blood of BGroup. The vaginal swab of the deceased showed the presence of semen of A Group. The shirt worn by the accused at the time of the incident showed the stains of human blood of BGroup, which is the bloodgroup of the deceased. The petticoat worn by the deceased at the time of the incident showed semen stains of AGroup, which is the bloodgroup of the accused. The driving licence found lying on the floor at the spot showed the presence of blood of BGroup, which is the bloodgroup of the deceased. The axe also showed signs of the blood of BGroup as also the mattresses on the bed of the deceased. The blouse and petticoat of the Page 25 of 54 HC-NIC Page 25 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT deceased were also soaked with the blood of B Group. Further, the petticoat of the deceased had semen stains of AGroup, the bloodgroup of the accused.
32. The above, therefore, is the oral and documentary evidence on record, after the evaluation and appreciation of which the Trial Court concluded that the charge against the accused is proved beyond reasonable doubt.
33. In the background of the above evidence, Mr.J.M.Buddhbhatti, learned counsel for the appellant, has submitted as follows:
1) No offence under the Atrocities Act is made out against the appellant. The deceased and the appellant belonged to the same community, therefore the charge under the Atrocities Act cannot be sustained.
2) The offence under Section 376 of the IPC is not made out against the appellant. There was a loveaffair and illicit relationship between the appellant and the deceased. There was no Page 26 of 54 HC-NIC Page 26 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT enmity between them. In the case filed by the deceased under the Atrocities Act against the appellant, the appellant was acquitted, as is evident from the evidence of PW5, the husband of the deceased. As there was no enmity between the appellant and the deceased, no motive existed for the appellant to kill the deceased.
Merely because the driving licence of the appellant was found at the place of the incident, it cannot be assumed that the appellant is the perpetrator of the crime. Though it may be considered as an incriminating circumstance, however, it does not connect the appellant with the commission of the offence.
3) The weapon of offence was not sent for fingerprint analysis, therefore, it cannot be said that it was used by the appellant to commit the crime.
4) The evidence on record makes it clear that the house of the deceased consisted of only one room. All four children of the deceased were sleeping in that room. No man would commit an Page 27 of 54 HC-NIC Page 27 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT act of rape and murder in such circumstances. Any movement from the appellant would have woken up the children, therefore, the story of the prosecution is highly improbable.
5) There is no conclusive evidence to prove who killed the deceased. The Investigating Officer did not take any samples for analysis from the husband of the deceased. It is not known what the blood group of the husband of the deceased is, therefore, without ruling out all possibilities the liability regarding the commission of the crime cannot be fastened upon the appellant.
6) The injury on the person of the appellant has been denied by him. It has been mentioned in the Arrest Panchnama that there was a simple scratch mark on the left cheek of the accused and his right leg was grazed. The explanation of the accused in the Arrest Panchnama is that he sustained these injuries from the thorn bushes when was trying to escape from the police. Such injuries cannot implicate Page 28 of 54 HC-NIC Page 28 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT the accused in the commission of the offence.
7) No reliable and trustworthy evidence has been produced by the prosecution in order to connect the accused to the commission of the crime, therefore, the benefit of doubt deserves to be given to the appellant.
34. In support of the above submissions, learned counsel for the appellant has placed reliance upon the following judgments:
(i) Naresh Kumar v. The State of
Maharashtra - AIR 1980 SC 1168
(ii) Baldev Singh v. State of Haryana -
AIR 2009 SC 963
(iii) Subhash Chand v. State of
Rajasthan - (2002)1 SCC 702
(iv) Raj Kumar Singh alias Raju alias
Batya v. State of Rajasthan - AIR 2013 SC 3150
(v) Sujit Biswas v. State of Assam -
AIR 2013 SC 3817
35. Per contra, Mr.Ronak Raval, learned Additional Public Prosecutor, has strongly contended that in the present case, the chain of circumstances Page 29 of 54 HC-NIC Page 29 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT against the accused is complete. He has submitted that Ravina, the child witness and daughter of the deceased has stated in her deposition that, on the night of the incident, the deceased was sleeping on one cot whereas the four children of the deceased were sleeping on another cot. The accused was sleeping on the floor. The accused was, therefore, present at the house of the deceased when she was last seen alive. The original licence of the accused with his photograph on it was found near the bed on which the deceased was killed. Human blood of B Group, which is the blood group of the deceased, was found on licence. This incriminating circumstance was put to the accused but he could give no explanation in his statement under Section 313 of the Code and merely denied the same. It is not the case of the accused that he was at another place at the time when the incident took place. It is further stated that the conduct of the accused also points towards his guilt. It is stated in the Arrest Panchnama at Ex.44 that the accused ran away from the Page 30 of 54 HC-NIC Page 30 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT police and the explanation given by him for the scratches found on his cheek and graze mark found on his right knee (though the medical evidence states left knee) is not convincing. Had the accused not been involved in the commission of the offence, there was no reason for him to run away.
36. Learned Additional Public Prosecutor has submitted that the blood of BGroup (belonging to the deceased) was found on the shirt of the accused which was seized upon his arrest. Even when he was arrested, the shirt had dried blood stains on it, which is noted in the Arrest Panchnama. The weapon of offence, that is, axe, the pillow and quilt on the bed on which the deceased was found dead, were soaked with blood belonging to BGroup. Thus, all the circumstances pieced together, form a complete chain, which point only to the guilt of the appellant and no other person. Besides, PW2, Dr.Dharmisthaben Govindbhai Gosai, has also described the injuries on the person of the accused and has stated that the graze injury on Page 31 of 54 HC-NIC Page 31 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT left knee and the scratch marks on neck of the appellant could have been caused due to the scuffle that took place at the time when he was committing rape on the deceased. The doctor has further stated that the graze mark on the left knee of the appellant could have been caused due to scraping against a hard surface. The factum of sexual assault on the deceased is proved by medical evidence.
37. It is further submitted by the learned Additional Public Prosecutor that all the Panch Witnesses have supported their respective Panchnamas. The report of the FSL and the Serological Report prove that the blood of the deceased was found on the clothes of the appellant. The semen of the appellant was found in the vaginal swab taken from the body of the deceased.
38. It is further submitted that the Trial Court has properly analyzed all the incriminating circumstances against the appellant and has taken into consideration the aspect that all Page 32 of 54 HC-NIC Page 32 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT these circumstances, put together, form a chain that inevitably points out to the guilt of the appellant. The findings and the conclusion arrived at by the Trial Court, therefore, may not be disturbed and the judgment may be confirmed.
39. Learned Additional Public Prosecutor has relied upon a judgment of the Supreme Court in the case of Gajanan Dashrath Kharate v. State of Maharashtra - (2016)4 SCC 604, by submitting that under Section 106 of the Evidence Act, 1872, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. In the present case, the appellant has not discharged that onus of by explaining satisfactorily how his licence came to be found at the place of the incident.
40. In view of the above submissions, it is submitted that the appeal be dismissed.
41. This Court has heard learned counsel for the respective parties at length and given thoughtful consideration to the material on Page 33 of 54 HC-NIC Page 33 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT record as well as the respective submissions.
42. There is no doubt regarding the fact that the present is a case of circumstantial evidence and there is no eyewitness to the incident. It is now a settled position of law that the conviction of an accused person can be based solely upon circumstantial evidence. However, for such a finding to be arrived at, the prosecution is burdened with the duty of establishing its case beyond reasonable doubt. In doing so, the prosecution is required to stand on its own legs and cannot depend upon the weakness in the case that may be put up by the defence.
43. In the present case, however, the appellant has not led any evidence in defence. In his statement under Section 313 of the Code, the appellant has denied the incriminating circumstance regarding his original licence with his photograph being found in a bloodstained condition at the scene of offence. He has also denied his presence at the scene of the offence Page 34 of 54 HC-NIC Page 34 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT and has stated that he is innocent and the case against him is false and he has not committed the crime. However, no explanation is offered by him.
44. There is no eyewitness to the incident that took place in the oneroomed house of the deceased, in which her four children were sleeping on one bed and she was sleeping on the other bed when the crime took place. The accused was sleeping on the floor. This picture emerges from the deposition of the child witness Ravina, who saw her mother lying dead on the cot in a pool of blood at 9:00 am in the morning when she woke up.
45. The timehonoured principles of law regarding the conditions that are required to be fulfilled before the case against an accused can be said to be fully established on the basis of circumstantial evidence have been enumerated by the Supreme Court in Sharad Birdichand Sarda v. State of Maharashtra - (1984)4 SCC 116. The said principles are reproduced hereinbelow: Page 35 of 54
HC-NIC Page 35 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made: [SCC para 19, p.807 : SCC (Cri) p.1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is Page 36 of 54 HC-NIC Page 36 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
The abovequoted principles have stood the scrutiny of subsequent judicial precedents and are still firmly retrenched in the criminal jurisprudence of our country. It, therefore, remains to be seen whether, in the present case, the prosecution has succeeded in proving the chain of circumstance against the appellant beyond reasonable doubt in order to sustain his conviction. We are called upon to examine Page 37 of 54 HC-NIC Page 37 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT whether the chain of circumstances against the appellant is so complete and conclusive that it is incapable of any other explanation or hypothesis, except that of the guilt of the appellant. The circumstances should be such that they unerringly point out to the guilt of the appellant and none else.
46. In light of the above principles of law, we may now elaborate the incriminating circumstances against the appellant that are found from the material on record:
(1) It is established by the testimony of Ravina, the child witness who was present in the room when the incident took place, that the appellant came to the house of the deceased at 9:00 pm on the night between 25th and 26th July, 2008. Ravina states that the accused used to frequently visit the house of the deceased in the absence of her father. On the fateful day as well, Ravina's father, husband of the deceased, had gone to Ahmedabad due to the death of a relative. Ravina describes that the appellant Page 38 of 54 HC-NIC Page 38 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT had come to their house and the deceased had made tea for him. Both the accused and deceased took tea. Thereafter, the deceased gave food to the appellant and they all went to sleep, as described hereinabove. When Ravina awoke in the morning, she found her mother lying on the bed, soaked in a pool of blood. The pillow and bed clothes were also soaked with blood. She, therefore, started shouting, which brought PW3 to the spot who then filed a complaint on the basis of Ravina's narration.
(2) The next circumstance that emerges from Ravina's deposition is that the appellant used to visit the house of the deceased frequently in the absence of her husband, since there was an illicit relationship between them. Ravina was aged thirteen years when she gave her testimony.
The Trial Court has noted that it was only after ascertaining that she was capable of understanding the questions put to her and answering them that her deposition was recorded. The narration in the compliant corroborates the testimony of Ravina. From the above, it is clear Page 39 of 54 HC-NIC Page 39 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT that the deceased was last seen alive in the company of the appellant, who was very much present in her house on the night of the murder.
47. The theory of last seen together may not, by itself, form the basis of holding the appellant guilty of the offence. However, coupled with other circumstances, where the link of the incriminating chain has been satisfactorily proved to point towards the guilt of the accused, the circumstance of last seen together and the absence of any explanation by the accused is a relevant circumstance and provides an additional link to complete the chain of evidence against him. This principle of law has been reiterated by the Supreme Court in its recent judgment in the case of Anjan Kumar Sarma and others v. State of Assam - AIR 2017 SC 2617.
(3) The next incriminating circumstance against the accused is that his original driving licence was found in a bloodstained condition, lying on the floor near the cot on which the Page 40 of 54 HC-NIC Page 40 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT body of the deceased was found. The blood on the licence of the appellant was of BGroup, which has been found to be that of the deceased after forensic analysis. This incriminating circumstance was put to the appellant while recording his statement under Section 313 of the Code. However, the appellant did not give any explanation, leave alone any satisfactory explanation, regarding how his original driving licence with his photograph on it, came to be found at the spot. It can fairly be deduced that it may have fallen from his pocket during the scuffle between the deceased and accused just prior to her murder. The injuries on the person of the accused point out to a scuffle having taken place, as is clear from the evidence of Dr.Dharmishtaben.
(4) Another link in the chain of incriminating circumstances is that the shirt worn by the appellant at the time of his arrest on 27.07.2008, the day after the incident, had dried bloodstains on it. When put to forensic analysis it was found that there blood stains of Page 41 of 54 HC-NIC Page 41 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT GroupB blood which was the blood group of the deceased. The bloodstained axe, pillow and quilt on the bed on which the body of the deceased was found were also stained with blood of BGroup, namely, that of the deceased. (5) PW2, Dr.Dharmisthaben Govindbhai Gosai, who examined the appellant on 27.07.2008, states in her deposition that the appellant has given the history before her and stated that on 25.07.2008, he committed rape on the deceased. Thereafter, the physical examination of the appellant was conducted by this witness wherein it was found that the injuries, as already described hereinabove, were found. In the Arrest Panchnama, Ex.44, the explanation given by the appellant to the Panchas that is recorded, to the effect that he sustained scratches on his left cheek and a graze injury on his right knee due to thorns, while he was trying to evade the police. PW2 Dr.Dharmishtaben has further stated that the scratch marks on the cheek and neck of the appellant could have been caused in the scuffle that took place when rape was being Page 42 of 54 HC-NIC Page 42 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT committed by the appellant on the deceased and the graze marks on his left knee could have been caused by the scraping of the knee on a hard surface.
(6) Though the appellant, in his statement under Section 313 of the Code, denies the incriminating circumstance of the history given by him to PW2 and the injury received by him, however, there is no reason to disbelieve the testimony of this witness, who is a doctor, who has no axe to grind against the appellant. (7) The presence of the appellant at the scene of offence is proved by circumstantial evidence, namely the testimony of Ravina and the factum of the original driving licence of the appellant being found at the spot. The appellant used to visit the house of the deceased frequently in the absence of the husband of the deceased. On the day of the incident also, the husband of the deceased was not at home as he had gone to Ahmedabad. There was an illicit relationship between the appellant and the Page 43 of 54 HC-NIC Page 43 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT deceased which is stated by the child witness. This aspect is also alluded to by PW5, husband of the deceased in his testimony, wherein he states that the deceased used to hide the fact from him that the appellant visited her clandestinely. This witness further states that he was aware of the illicit relationship between the deceased and the appellant. He has further referred to the fact that the deceased had filed a case under the Atrocities Act against the appellant, who had hit her on her forehead with a "Paatli", in which the appellant was acquitted.
(8) The next link in the chain of incriminating circumstances against the appellant is that the vaginal swab taken from the body of the deceased showed the presence of semen of AGroup which belonged to the appellant. His presence at the spot as well as sexual assault by him on the deceased before her death is proved by this circumstance.
48. All the abovementioned circumstances form a Page 44 of 54 HC-NIC Page 44 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT complete chain that leaves no room for any other conclusion except the hypothesis of the guilt of the appellant. The facts established by evidence, as described hereinabove rule out the possibility of the involvement of any other person except the appellant in the commission of the offences with which he is charged.
49. As is clear from the above discussion, in the present case, the prosecution has been successful in establishing all the circumstances against the appellant. On the basis of the above chain of circumstances, we cannot but hold that the Trial Court has rightly come to the conclusion that the case against the appellant is proved beyond reasonable doubt.
50. It has been submitted on behalf of the appellant that no offence under the Atrocities Act is made out against the appellant, who belonged to the same community as the deceased. It is a fact, established by evidence of PW11, the Taluka Development Officer who issued Certificate to the deceased, that the deceased belonged to the Page 45 of 54 HC-NIC Page 45 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT Hindu Chamar caste, which is a Scheduled Caste. The appellant has not produced any material on record to prove that he also belongs to the same caste. On the contrary, his name is Hirabhai Shankarbhai Raval which, on the face of it, shows that he belongs to a different caste than that of the deceased.
51. It was next submitted on behalf of the appellant that the offence under Section 376 of the IPC is not made out as there was a loveaffair between the appellant and the deceased and no enmity existed between them. The evidence on record does point out to an illicit relationship between the appellant and the deceased. However, this relationship appears to have turned sour as the deceased had filed a case under the Atrocities Act against the appellant who had hit her with a "Paatli" and the appellant had threatened the deceased. The deceased was subjected to physical assault before her death, which is proved by the medical evidence on record. Therefore, this submission of the learned advocate for the appellant does not hold Page 46 of 54 HC-NIC Page 46 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT good in the face of the evidence on record.
52. It has further been submitted that there was no motive for the appellant to kill the deceased and merely because the driving licence of the appellant was found at the place of occurrence, it cannot be assumed that the appellant was the perpetrator of the crime. The presence of the appellant at the scene of offence on the night when the deceased was murdered is fully established. Ravina has stated that the appellant not only came to the house of the deceased but he also took tea and dinner and went to sleep on the floor near the cot of the deceased. The presence of the appellant is further fortified by his driving licence with his photograph on it, which was found stained with the blood of the deceased. The appellant, as per the evidence of Ravina, escaped through the backdoor after the incident and was not found in the morning when Ravina woke up. The fact that the shirt worn by the appellant when he was arrested was bloodstained and the blood turned out to be of the same group as that of Page 47 of 54 HC-NIC Page 47 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT the deceased, further establishes his presence. In such circumstances, when all the circumstances point out to the presence of the appellant at the spot, the presence or lack of motive, is immaterial.
53. The submission that the weapon of offence was not sent for fingerprint analysis does not detract from the case of the prosecution as the said axe had the presence of human blood of B Group on it which is the blood of the deceased. It is evident that the axe was used to kill the deceased. The injury sustained by the deceased on her neck could have been caused by the weapon of offence as per the testimony of the doctor who conducted the postmortem, therefore, the aspect whether it was sent for fingerprint analysis, or not, pales into insignificance.
54. The submission advanced by learned counsel for the appellant that the appellant could not have committed the crime when all four children were sleeping in the same room, is also not worthy of acceptance as nobody can guage the intention of Page 48 of 54 HC-NIC Page 48 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT a criminal mind when it is bent upon committing a crime. The crime appears to have been committed in the dead of night when all the four young children were sleeping on another cot, though in the same room. Ravina states that she is not accustomed to awaking during the night. It is only when the children awoke in the morning that they discovered their mother dead on the cot, with her neck cut. When other circumstances unfailingly implicate the appellant in the commission of the offence, the aspect that the children of the deceased were also sleeping in the same room has no relevance.
55. Learned counsel for the appellant has further submitted that there is no conclusive evidence to prove who has killed the deceased and the Investigating Officer did not take any samples for analysis from the husband of the deceased. This argument is absolutely irrelevant in the context of the evidence on record, as it has come in evidence that the husband of the deceased was not present at home, or even in the town, when the incident took place, having gone Page 49 of 54 HC-NIC Page 49 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT to Ahmedabad due to the death of a relative. He returned only the next day after the incident had taken place. When the husband of the deceased was not present at the time of the commission of offence, there was no requirement on the part of the Investigating Officer to take any samples from him.
56. The submission that the injuries on the person of the appellant were caused not due to any scuffle between the appellant and the deceased but due to thorn bushes when the appellant was trying to escape from the police, is such that instead of coming to the aid of the appellant, it would go against him. What was the need for the appellant to escape from the police if he had nothing to fear from the police? The injuries sustained by the appellant on his cheeks and neck were such as could have been caused by finger nails when the appellant was subjecting the deceased to physical assault before her death.
57. We may now refer to the judgments relied upon by Page 50 of 54 HC-NIC Page 50 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT learned counsel for the appellant. The first judgment on which reliance is placed is that in the case of Naresh Kumar v. The State of Maharashtra (supra), wherein the Supreme Court has held as below:
"3. ..... In the case of circumstantial evidence no such presumption can be drawn unless the circumstances proved are completely incompatible with the innocence of the accused. The appellant therefore cannot be convicted of murder."
Applying the above principles of law to the evidence on record in the present case, we find that the circumstances against the appellant have been completely proved and they are incompatible with the innocence of the appellant and clearly point out towards his guilt.
58. In Baldev Singh v. State of Haryana (supra), also relied upon on behalf of the appellant, the Supreme Court has reiterated the principles of law regarding the conditions precedent for conviction of the accused based upon circumstantial evidence and has also referred to Page 51 of 54 HC-NIC Page 51 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT the judgment in the case of Sharad Birdichand Sarda v. State of Maharashtra (supra), reproduced hereinabove. On the facts of that case, the Supreme Court held that the chain of circumstances had not been proved. However, such is not the factual scenario in the present case where the evidence is to the contrary.
59. In Subhash Chand v. State of Rajasthan (supra), also pressed into service on behalf of the appellant, the same principles of law regarding circumstantial evidence have been reiterated. As we find from the evidence on record in the present case that the chain of circumstances is complete, this judgment would not come to the aid of the appellant.
60. Learned counsel for the appellant has further relied upon the case in Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan (supra) and Sujit Biswas v. State of Assam (supra), in order to buttress his submission that suspicion, however strong, cannot take place of proof. In the present case, the evidence on record does Page 52 of 54 HC-NIC Page 52 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT not rest on mere suspicion but is based upon the much stronger pedestal of incriminating circumstances. The distance between "may be" and "must be" has been covered by cogent and impeccable evidence insofar as implication of the accused in the present case is concerned.
61. The cumulative effect of the above discussion leads us to the unavoidable and inevitable conclusion that the case against the appellant has been proved on the basis of circumstantial evidence, beyond any reasonable doubt. In our view, the Trial Court has arrived at the correct conclusion on the basis of the evidence on record.
62. The appeal, being devoid of merit, deserves to be dismissed and the judgment and order of conviction and sentence passed by the Trial Court, confirmed. Hence, the present appeal is dismissed.
63. The R & P be sent back to the Trial Court forthwith.
Page 53 of 54 HC-NIC Page 53 of 54 Created On Thu Jul 27 00:09:59 IST 2017 R/CR.A/689/2012 JUDGMENT (SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) sunil Page 54 of 54 HC-NIC Page 54 of 54 Created On Thu Jul 27 00:09:59 IST 2017