Uttarakhand High Court
Pawan Saini vs State Of Uttarakhand on 25 February, 2020
Author: N.S. Dhanik
Bench: Sudhanshu Dhulia, N.S. Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Jail Appeal No. 24 of 2014
Pawan Saini ..........Appellant
Versus
State of Uttarakhand ......Respondent
Present:- Mr. Rajesh Joshi, Advocate for the appellant.
Mr. J.S. Virk, AGA assisted by Ms. Shivali Joshi and Mr. Pankaj Joshi,
Brief Holders for the State.
Coram: Hon'ble Sudhanshu Dhulia, J.
Hon'ble N.S. Dhanik, J.
Hon'ble Sudhanshu Dhulia, J. (Oral) This is an appeal arising out of the judgment and order dated 16.04.2014 passed by the learned District & Sessions Judge, Nainital in Session Trial No. 120 of 2013, whereby the present appellant has been convicted under Sections 302/376/511 and Section 10 of the Protection of Children from Sexual Offences Act, 2012 and has been sentenced to undergo rigorous imprisonment for life with a fine of Rs.5,000/- (Rupees Five Thousand only) under Section 302 of IPC, to undergo five years of rigorous imprisonment with a fine of Rs.5,000/- (Rupees Five Thousand only) under Section 376/511 of IPC, and to undergo rigorous imprisonment for a period of five years with a fine of Rs.5,000/- (Rupees Five Thousand only) under Section 10 of the Protection of Children from Sexual Offences Act, 2012, with default stipulations. All the sentences were directed to run concurrently.
22. The case of the prosecution in short is as follows:-
The incident is of 12.04.2013 for which the accused/present appellant was charged for raping and thereafter strangulating to death a girl child of 10 years of age, inside a jungle called "Jwalavan", in Ramnagar, District Nainital. As per the prosecution case, the parents of the girl child were working as labourers for loading and unloading of river bed material for a contractor, near Ramnagar. Like her parents, the present appellant/accused was also engaged in a similar kind of work. The present appellant/accused belongs originally to Bijnor (Uttar Pradesh), whereas the parents of the girl child belong to Muradabad (Uttar Pradesh), and it is the work which has brought them to the tarai (plain areas) of Uttarakhand in Ramnagar, Nainital, where they are engaged by a contractor for loading and unloading the river bed material, used for building purposes. They also have their temporary shelter near this work place.
3. On that fateful day i.e. on 12.04.2013, there was no work of loading and unloading of river bed material, and therefore, the present accused/appellant had consumed liquor in the morning and was going towards the jungle. The girl child (victim), who was known to the appellant/accused requested that she will also go along with him inside the jungle. The accused then agreed to take the child along with him. Once the two were inside the jungle, the appellant/accused tried to molest her and then raped her which the child resisted, and in order to remove any witness, the accused ultimately decided to strangulate the girl child to death. After finishing this dastardly act, the appellant comes back to the place 3 where he used to reside along with the parents of the girl child. Meanwhile, when the parents of the girl child returned from the local bazaar and did not find their daughter, they raised an alarm and a search was made inside the jungle as well, but in vain. The appellant too pretended to be busy in the search, along with the remaining persons. At some point of time, the parents of the victim and other persons had their suspicion on the present appellant and thereafter he was beaten up by the parents of the girl and other villagers, after which he confessed to his crime. Immediately thereafter the matter was informed to the police and an FIR was lodged by the father of the girl child on 13.04.2013 at about 02:55 PM at Police Station Ramnagar, District Nainital.
4. The FIR states that the informant (Sriram) is engaged in the work of loading and unloading of river bed material of river "Kosi" and stays near "Jwalavan" forest along with his wife and 10 years girl child. Yesterday i.e. on 12.04.2013 which was a Friday and a holiday for them, his wife had last seen their 10 years old girl going along with the accused Pawan Saini (appellant/accused), towards the jungle. The informant then states that Pawan Saini is known to them, and his daughter used to call him "mama". Later he and his wife went to the local bazaar to purchase household items. When they returned in the evening, and did not find their daughter, a search was made for her daughter, but she could not be located. Today i.e. on 13.04.2013, when the search was made again, "Rukhsana" who works as a contractor disclosed that yesterday at about 11:00 AM, she had seen their daughter going with Pawan Saini towards the jungle. When Pawan Saini was confronted, he initially denied but later when he was being beaten up, he confessed that he 4 had taken their daughter to the jungle where he strangulated her to death. The FIR further states that Pawan Saini was in their custody and a case be instituted against him.
5. Subsequent to the lodging of the first information report at Police Station Ramnagar, District Nainital on 13.04.2013 at about 02:55 PM, the Inspector Vijay Singh Chaudhary who is PW 7 goes to the place where Pawan Saini was being held by the villagers. The accused then confesses his crime of raping and thereafter strangulating the girl child to death. He was taken to the jungle where on his pointing out the dead body of the deceased was recovered, which was hidden under wild shrubs. The body was recognized by the parents of the deceased, to be of their daughter Raj Kumari. The victim was strangulated to death by the accused by a lohi (shawl), which was also recovered about 20 paces away from where the body of the deceased was recovered. The matter was reported to the nearest Magistrate under the provisions of Section 174 of CrPC. Thereafter under the provisions of Section 174 of CrPC, the inquest report was prepared. The inquest was conducted between 02:55 PM to 05:30 PM. The body of the deceased was lying straight. Her feet were towards north and her head towards south. Her mouth was open and tongue was protruding out. The inquest report states that the body was beginning to get decomposed and had maggots all over it and there were flies all around the body as well, and a foul smell was also coming from the body. There was blood coming out from the nose and the mouth of the deceased. There were blisters on the mouth of the deceased. Marks of injuries were also noticed on her neck. The upper portion of both the eyes was swollen. There was an injury on her right 5 earlobe and her neck was also swollen. There were injuries on the bottom of her left hand thumb. All around the portion of the vagina was swollen and blood along with other liquid was also oozing out from her vagina. A blue mark injury was also noticed on her right hand.
6. The body was sealed and sent for postmortem examination. The postmortem examination was conducted on the very next day i.e. on 14.04.2013. The postmortem report noticed the following ante-mortem injuries:-
"1. Lacerated wound 2.5 cm x 2.5 cm on left thenar aspect of hand.
2. Abrasion 3.0 cm x 1.5 cm present on the back of right elbow.
3. Ligature mark of varying width (1.5 cm to 3 cm) encircling neck below thyroid cartilage and slight furrow, without any gap.
4. No external injuries seen around vagina, hymen not intact.
5. Hair pluckable with slight force, nails intact, teeth not loosen.
6. Eggs of flies present at many places.
7. Hair recovered from right hand of Rajkumari & preserved."
7. Two vaginal smear were also prepared and sent for examination.
8. The cause of death as per the postmortem report is asphyxia as a result of "strangulation". The postmortem report also states the materials which were 6 on the body of the deceased were handed over to the police, which are as follows:-
"(1) White-green check salwar (2) Half sleeve kurta (3) Plastic bangle (Kada) on right hand (4) Wrist band on her right hand (5) Neck Chain (6) Ear tops"
9. The most important piece of evidence here was hair which were found on the right hand of the deceased, which were noticed during the postmortem, and which were sealed in an envelope and handed over to the police for forensic examination.
10. Meanwhile, the accused was taken on remand on 14.04.2013 and was examined by the learned Magistrate the next day, under Section 164 of CrPC. The learned Magistrate before whom the accused was brought for recording the statement under Section 164 of CrPC, adopted a proper procedure. He first asked the age of the accused and his qualifications, which the accused says to be 23 years and he had studied till Class IX. Then a specific question was put to the accused whether he is giving this statement under any fear, coercion or threat, to which he replies in negative. Another specific question was also put to the accused whether the police had asked him to give this statement, to which he denies and say there was no pressure from the police. He was also apprised by the learned Magistrate that the statement which he will now give will be read against him in the court of law, which he understood. After doing this, the learned Magistrate records his satisfaction that the 7 accused is giving this statement on his own free will and not under any threat, fear or coercion.
11. In his statement under Section 164 CrPC, the accused says that on 12.04.2013 which was Friday at about 09:00 AM in the morning he had consumed liquor, in company of his three friends. After leaving their company he returned to his "jhuggi"*. He was carrying the remaining liquor with him, which he consumed in his "jhuggi", and had some food as well. By this time, he was totally drunk and in that state of intoxication proceeded towards the nearby jungle. He then states that adjacent to his hut are the hutments of other labourers as well, including the "jhuggi" where the deceased Raj Kumari stays with her parents. When he was going towards the jungle, Raj Kumari insisted that he should take her along, and then they both proceeded towards the jungle. Half way to the jungle, he even asked the girl to return, but she refused. When the two were inside the jungle, the girl hugged him, as she was scared inside the jungle. He was then sexually aroused and raped her. When he saw blood coming out of the vagina of the victim, he got scared. The girl also threatened to report the matter to her parents. He then killed the girl child by holding the victim from behind and strangulating her with the "shawl", he was carrying. After two to three minutes of struggle, the victim gave up and died. He then left the spot, reached his jhuggi and went to sleep. He had already made up his mind to tell her parents that Raj Kumari had not gone with him in the jungle, but unfortunately there were some persons who had seen Raj Kumari with him, and he was caught, as he was later beaten up by the villagers and * A temporary hut or shack 8 was forced to disclose as to how he had done the child to death.
12. After investigation the police ultimately filed the charge-sheet against the appellant under Sections 302/363/376 and 201 of IPC. The matter was thereafter committed to the Sessions by the learned Chief Judicial Magistrate and charges were ultimately framed by the Sessions Judge, Nainital against the accused under Sections 363/376/302/201 and Section 10 of the Protection of Children from Sexual Offences Act, 2012 on 19.08.2013. There is some discrepancy here regarding the very framing of charges as charges should have been framed under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and not under Section 10 of the Protection of Children from Sexual Offences Act, 2012, as it is a case of "aggravated penetrative sexual assault", and not just of "aggravated sexual assault". All the same, at this stage, it has no material significance.
13. The prosecution in order to establish its case examined as many as 12 witnesses. Thereafter the accused gave his statement under Section 313 of CrPC and after evaluating the entire evidence, the trial court convicted the appellant.
14. PW1 Sriram is the informant and the father of the deceased. He elaborates what he had already stated in the first information report that day i.e. 12.04.2013 was a Friday, when labourers do not work and generally go to the local bazaar to purchase household items and vegetables for the week. He recognizes the accused in the court and says that he is related to his wife and his daughter used to call him "mama". On 12.04.2013 at 9 about 11:00 AM, the accused has taken his daughter to the jungle which was seen by his wife and others as well. This was not unusual as the accused was known to them. When they returned from the market at about 05:00 PM and did not find their daughter, they tried to search for her. Later Rukhsana who works as a contractor informed him that she had seen their daughter along with Pawan Saini going towards "Jwalavan" on 12.04.2013. After that some other neighbours also informed him that they had also seen his daughter going along with Pawan Saini towards jungle, these persons were, Gopi Chand and Harish Chand. In the night when they were looking for their daughter, the accused Pawan Saini was also with them and he was deliberately taking them to wrong places to make sure that the search party does not locate the dead body. Next day this witness along with other persons confronted the accused as not only Rukhsana but other persons had also seen his daughter along with the accused and when force was applied, the accused confessed his crime and said that he has killed his daughter. He then went to the police station to lodge the first information report. He also says that he had gone with the police and on the pointing out of the accused the body of the deceased was recovered, etc. He also says that the accused had confessed before the police that he had raped the deceased before actually putting her to death. This witness is also a witness to the recovery of the body of the deceased as well as shawl and other articles which were recovered. Near the body of the deceased was also recovered black "chappal". The two bundles which were opened were containing the shawl and other black "chappal". This witness recognizes the shawl as of the accused and black "chappal" of his daughter. This witness was cross-examined by the defence particularly as to why 10 nothing has been said by him about the rape in the first information report, to which he satisfactorily answers that when initially the crime was confessed by the accused before him and other villagers, the accused had not disclosed about committing any act of rape. This the accused only confessed before the police at the time of discovery of the dead body and the shawl. This appears to be correct, from the perusal of the documents and the chronology of events.
15. PW 2 is the mother of the deceased who reiterates what has been stated in the FIR. She states that initially even when their daughter was not located by the time they had returned to their house at about 05:00 PM, they asked many villagers about the whereabouts of their daughter, including Pawan Saini who did not disclose anything. It was only later when several persons pointed the fact that they have seen their daughter last time along with Pawan Saini then the accused was confronted and a disclosure was made by him about the crime.
16. PW 3 B.D. Joshi is the doctor who conducted the autopsy on the body of the deceased, where he noticed the ante-mortem injuries on the body of the deceased. He states that from the right hand of the deceased were recovered some hair, which were sealed in an envelope and were sent for forensic examination. This witness states that injury no. 3 is the fatal injury which caused the death which is identified by the ligature mark i.e. "ligature mark of varying width 1.5 cm x 3 cm encircling neck below thyroid cartilage with slight furrow without any gap". In his cross-examination, he says that the ligature mark was around the neck without any gap which establishes this to be a case of strangulation.
11Moreover, it was not done by any piece of cable or a rope, which would have shown a precise width of the ligature mark all around the neck, but in this case the width of the ligature mark though is without any gap and is all around the neck, yet differs in its width from 1.5 cm x 3 cm, which again shows that this could have been done by a "shawl" or any other means of strangulation, but a rope.
17. Apart from PW2, the witnesses who had last seen the victim with the accused going towards the jungle are PW 4 and PW9.
18. PW 4 Gopi Ram in his statement says that he knows the informant as they are neighbours, and are engaged in the same work as labourers. He then says that he knows the deceased as well as Pawan Saini as he had come to stay with them in the same place about two weeks prior to the incident. This witness further says that on 12.04.2013 at about 11:00 AM, he had seen the daughter of the informant going along with the accused towards the jungle. The accused had a kind of "chadar" or "shawl" in his hand. In the evening when Sriram and his family returned from bazaar and could not find their daughter, a search was made for the missing daughter. He even told Sriram that he had seen their daughter at about 11:00 AM along with the accused. He states that Pawan Saini was confronted initially on the basis of mere suspicion as till then there was nothing to link him with the crime, but the accused confessed his crime when he was beaten up and thereafter the police report was lodged and the body of the deceased was discovered on the pointing out of the accused. This witness is a witness of the inquest as well as the discovery of the dead body and other articles.
1219. PW 9 Rukhsana is the wife of Gaffar and she is 36 years of age. She states that she is illiterate and does the work of a contractor in "Jwalavan". She also has a "jhuggi" at the same place as the informant and the accused. She further states that the accused is also a labourer and does the work of loading and unloading of the river bed material. He is also a tractor driver. On the fateful day, she asked the parents of the deceased to accompany her to the jungle to collect wood for the fire but they refused and said that they have enough firewood and instead they would be going to the local bazaar for purchase of household items. It was a holiday for the labourers as there was no work of loading and unloading on Friday. At about 11:00 AM, she went towards the jungle, when she received a call from her husband at 11:00 AM, which came on her mobile. While she was talking to her husband, she saw that the accused was holding the hand of the girl child and the two were going towards the jungle. At about 05:00 PM when the parents of the deceased returned from the market but did not find their daughter, this witness informed them that she had seen their daughter along with Pawan Saini going towards the jungle. Initially when Pawan Saini was confronted, he denied the accusations, and stated that Raj Kumari is his niece and he cannot harm her. But later when the accused was beaten up, he confessed his crime of raping and then murdering the girl child. This witness was also put to lengthy cross-examination as her evidence was doubtful but the defence could not prove in any manner that the evidence of this witness is doubtful in any manner.
1320. PW5 constable 321 Mahendra Singh Sirari, PW6 Harish Chandra and PW7 Inspector Vijay Singh Chaudhary are merely formal witnesses. They are either the police personnel who had lodged the FIR at the police station or they were the witnesses to the recovery and stuck to their statement before the court.
21. PW8 is Sri Rahul Srivastava who was working as a Judicial Magistrate on 15.04.2013 and had recorded the statement of the accused under Section 164 of CrPC was then examined. In his examination-in-chief, he recognized the statement of the accused given before him under Section 164 of CrPC. He then says that an application was made before him by the police for taking the accused into remand, which he granted. He gave twenty-four hours' time to give statement under Section 164 of CrPC. He denies the question put to him by the defence that the accused was brought before him on 14.04.2013 itself and confessed of his crime before him. He denies and says that the statement of the accused was recorded in the court the next day on 15.04.2013.
22. Constable 731 Deep Kumar is PW 10, who has collected the hair and blood sample of the accused, PW 11 is Dr. Usha Bhatt, Pathologist, Base Hospital Haldwani, who had gone with PW 10 to collect the hair and blood sample of the accused and PW 12 is S.I. Ravindra Kumar, who had taken the accused before the Magistrate for his statement under Section 164 CrPC, are formal witnesses.
23. An important evidence which was placed before the court by the prosecution is the forensic report which indeed the most incriminating evidence against the accused. As we have already referred above in the 14 postmortem report on the right hand of the deceased were discovered few hair, which were recovered and placed in a sealed envelope and sent for the forensic examination. On forensic examination this hair matched with the hair of the accused. The forensic examination report dated 23.07.2013 was made as Exhibit A-34. This was sent in a sealed envelope of which a DNA profile was made in the forensic lab at New Delhi, which is taken up as Exhibit 3 in the forensic lab report. The sample of the hair of the accused was taken by Dr. Usha Bhatt (PW11) on 18.04.2013 after obtaining orders from the learned Magistrate and sent for the forensic examination. A DNA profile was also made of three hair samples which were taken from the body of the accused.
24. There were three samples, as follows:-
(a) Few strands of black hair described as 'hair from scalp' wrapped in a paper,
(b) Few strands of small black hair described as 'hair from chest' wrapped in a paper, and
(c) Few strands of small black hair described as 'pubic hair' wrapped in a paper.
25. The DNA profile which was prepared, matched with Exhibit 34, the report states that the DNA profile generated from the hair found on the hand of the deceased was found to be consistent with the DNA profile of Pawan Saini (Source of exhibit-2: Liquid Blood Sample; exhibit-4a: Scalp hair; exhibit-4b: Chest hair and exhibit- 4c: Pubic hair).
26. It is by now well settled that DNA report in such cases is a clinching piece of evidence, unless the defence can make a dent in the report itself. The learned 15 counsel for the appellant Sri Rajesh Joshi has therefore questioned the very existence of hair samples on the hand of the deceased. According to him, hair were not recovered from the hand of the deceased since there is no mention of hair in the inquest report. The theory which he puts forward is that these hair were taken from the accused later and implanted by the Investigating Officer.
27. This contention of the learned counsel for the appellant is based primarily on the fact that when the inquest report was prepared on 13.04.2013, which was during day time, between 02:55 PM to 05:00 PM, though minute observations were reported in the inquest report, but the report nowhere states that on the right hand of the deceased they have discovered hair.
28. All the same, this argument of the learned counsel for the appellant is not logically or pragmatically appealing. Under sub-section (1) of Section 174 of CrPC, the inquest report has to be prepared with a very limited purpose. The purpose of an inquest under Section 174 of CrPC is to see whether the death has been caused due to any unnatural reasons. The inquest report has to see as to what is the apparent cause of death. It has to describe any apparent wound on the body, fracture, marks of injuries which may be found on the body and then it must give its opinion as to the manner in which the death was caused, and by what weapon the injuries have been caused. In the present case merely because the inquest report does not disclose hair on the right hand of the deceased would not mean much. Nor will this give any benefit to the accused for the simple reason that the inquest report has a very limited purpose and in its true sense it is not a substantive piece of evidence.
1629. Moreover, after the inquest was completed on 13.04.2013, the body was sealed and was opened on the postmortem table, which was done the next day on 14.04.2013. The doctor who is the only person who has examined the body after it was sealed in the inquest noticed strands of hair on the hand of the deceased as it is expected from the doctor to have noticed such hair because in a postmortem such minute examination of the body has to be done by an expert, both externally and internally. The strands of hair have been duly noticed, recovered and placed as an exhibit in an envelope by the doctor. Therefore, there can be no manner of doubt as to the recovery of strands of hair from the right hand of the deceased at the time of the postmortem was conducted. This theory of planting of hair between inquest postmortem is also logically improbable. Inquest was made on 13.04.2013 and postmortem on 14.04.2013. After the inquest the body was sealed and opened on 14.04.2013 by the doctor. The hair samples of the accused were only taken on 18.04.2013 after order of the learned Magistrate. By the time the hair samples were taken, postmortem had already been conducted.
30. In the case of Mukesh Kumar and another vs. State (NCT of Delhi) and others, reported in (2017) 6 SCC 1, it has been clearly held by the Hon'ble Apex Court that DNA profile is an important piece of evidence. It must be taken into consideration unless it is shown to be dented.
31. In the present case, we have no reason to doubt the veracity of the forensic report or to doubt the manner 17 in which the recovery of hair sample was done by the prosecution.
32. But even if for a moment we discard the forensic report, which in itself is a conclusive piece of evidence against the accused, there are other incriminating evidences also against the accused. These are in form of last seen evidence of PW2, PW4 and PW9. The recovery of the dead body has been done at the instance and the pointing out of the accused. There are independent witnesses to the recovery which is duly testified in the court and the statement of the accused given under Section 164 of CrPC before the learned Magistrate. The veracity of which cannot be in doubt particularly when the Magistrate himself was examined as a witness in the court and gave a categorical statement that the accused was under no pressure or threat or fear at the time when he gave the evidence before him. There are too many evidences which point only to one direction which is the guilt of the accused. The chain is complete. Even though it is a case of circumstantial evidence, but the prosecution has been able to prove its case beyond reasonable doubt.
33. Considering all these factors, we find no ground for interference in the matter. Consequently, the criminal appeal is dismissed. The judgment and order dated 16.04.2014 passed by the learned District & Sessions Judge, Nainital in Session Trial No. 120 of 2013 is upheld.
34. Heard on the sentence.
35. Considering the facts and circumstances of the case, we are of the opinion that there is no occasion for us 18 to interfere with the sentence as well. The appellant is in jail. He shall undergo the sentence.
36. Let a copy of this judgment along with the lower court record be sent to the concerned trial court for onward compliance.
(N.S. Dhanik, J.) (Sudhanshu Dhulia, J.) 25.02.2020 25.02.2020 Ankit/