Allahabad High Court
The State Of U.P. vs Ramesh Harijan S/O Mantake on 23 March, 2007
Author: Amar Saran
Bench: Amar Saran, R.N. Misra
JUDGMENT Amar Saran, J.
1. Renu, a five or six year old girl, had been sent by her mother Smt. Batashi Devi, resident of village Hahi to stay with her maternal grandmother Smt. Phulpatta in village Muradipur. The two villages were about 2/4 miles apart and fell in the same police station Haraiya. The child had been sent by her mother to live with her grandmother because her grandmother was a poor old widow who was virtually blind and Renu could have been of some help to her grandmother. As Smt. Phulpatta's house had fallen down she used to sleep in the house of accused-opposite party Ramesh son of Manteku.
2. In the morning of 30.1.1996 Renu was found lying dead on her cot in the house of Ramesh. When the information of the death of Renu reached her mother Batashi Devi, she came from her village Hahi to village Muradipur and on being informed that her daughter had died in the night due to paralysis she buried the dead body by the side of the Manorama river with the help of some villagers. Thereafter, it appears that Smt. Batashi heard a rumour that her little girl had not died from paralysis but had actually been raped and murdered by the respondent Ramesh. This prompted Smt. Batashi to return to village Muradipur where she was informed by Shitla Prd. Verma, Jata Shanker and other persons of the village Muradipur that her daughter had been raped and murdered by Ramesh. Thereupon with the aid of the village zamindar Kunwar Dhruv Narain Singh she proceeded to lodge a report at police station Haraiya on 2.2.1996 at 6.10 pm, which inter alia contained the above mentioned disclosures, and expressed a suspicion that her daughter had been raped and murdered, and for ascertainment of the truth it was necessary that her daughter's dead body be exhumed from the ground and postmortem be conducted on it.
3. On the order of the SDM, Haraiya, the body was dug out on 3.2.1996 at about 9 or 9.30 am. After inquest by the SDM, Haraiya, which was scribed by SI Ramayan Giri, the body was sent for postmortem.
4. The postmortem was conducted by Dr. Sanjai Kumar Verma on 3.2.1996 at 4.30 pm. It showed that the age of the child Renu was about 5 years. Rigor mortis had ended. Some reddish serum was coming out of her nostril and death appeared to have taken place 4 days earlier. There were some grains of rice sticking on the chest of the child and the whole body was covered with mud and sand. The stomach was distended. The ante-mortem injuries were as follows:
Contusion 4 cm x 2 cm over the right side face below the right ear lobules on upper part of the neck.
Contusion 5 cm x 3 cm over the left side face in front and above tragus of the left ear.
Abraded contusion 4 cm x 3 cm over the back of the right shoulder joint & scapular region.
Contusion 3 cm x 2 cm over the upper part of the left scapula and back portion of the shoulder tip.
Abraded contusion 4 cm x 1 cm on each side of orifice and labia majora.
Abraded with tearing of labia majora of both sides 2 cm x 1 cm.
5. Hymen absent, lower part of vagina badly lacerated and pubic lower part upper abdomen, and vaginal tear up to upper part of Guel orifice.
6. The internal examination of the supra pubic region on opening the abdomen revealed that blood and gases were present and the lower part of the uterus had a bloodstained tear 1 cm by 1 cm. The cause of death was shock and haemorrhage. According to the doctor the death could have taken place on 30.1.1996 between 9 or 9.30 pm and that he opined that if a hard object like a human penis was inserted in the vagina it could have caused the injuries Nos. 7 and 6. The doctor took superficial and deep vaginal smears and swabs and handed them over to the police for pathological examination. The serologist report dated 29.3.1996 showed that the vaginal swab and vaginal smear as also the piece of white cloth and a piece of kathari on which the deceased was lying and which had been cut out by the investigating officer contained human blood. The kathari, white cloth and vaginal swab also contained human spermatozoa.
7. To establish its case, the prosecution has relied on the FIR lodged by Batashi Devi and scribed by Kunwar Dhruv Narain Singh, which was lodged at PS Haraiya on 2.2.1996 at 6.10 pm (Ext. Ka-1). The GD entry on the basis of the said report was made by head constable Rudal Yadav vide report No. 24 (Ext. Ka 3) which was proved by SI Ramayan Giri (PW 12), who was present at the police station when the report was lodged and who sent information by wireless to the SDM, Haraiya and other authorities and then proceeded to the place where the body was buried by the banks of Manorama river and who then exhumed the corpse and conducted the inquest as already described above. PW 12 further mentions that after the postmortem report reached the police station on 3.7.1996 at 7.50 pm, then Crime No. 22 of 1996 was assigned and a case was registered under Section 376 and 302 1PC against the accused respondent.
8. In order to prove its case the prosecution has examined PW 1 Kunwar Narain Singh, who was contacted by Smt. Batashi Devi (PW 2) mother of Renu when she came from village Hahi after learning that Renu had been done to death, and who took her to the police station to lodge the report.
9. PW 3 Smt. Sumiya Devi, PW 4 Smt. Urmila Devi, PW 6 Hira Devi, PW 9 Sona Devi, are other witnesses of fact who have however not supported the prosecution case in Court, and have disowned their statements to the investigating officer and were declared hostile. The prosecution has also examined PW 5 Ram Prasad @ Prasadi, PW 10, Bhikari, who have disclaimed the recovery by the police in their presence, of the Orhna (sheet for covering) and Bichauna (sheet for lying), and have only admitted to putting their thumb impressions on plain paper given to them by the investigation officer. They were also declared hostile.
10. PW 7 Jata Shanker Singh, PW 8 Shitla Prasad Verma, who were eye-witnesses claim to have been passing near the house of the accused, where on hearing some noise they flashed their torches and saw the accused Ramesh committing rape on a 6 or 7 year old girl. On their cries the accused is said to have run away leaving the girl behind.
11. The other witnesses are formal. They are PW 11 Dr. Ajai Kumar Verma, Senior Medical Officer, district hospital Basti, who conducted the postmortem as described above on 3.2.1996 at 4.30 pm on the body of Kumari Renu. PW 12 Ramayan Giri, who conducted the inquest on the dictation of SDM, Hariya, in whose presence the FIR was lodged by Smt. Basati on 2.2.1996 at 6.10 p.m. and the GD prepared by head constable Rudal Yadav who was instrumental in exhuming the dead body as described above and thereafter scribing the inquest, and PW 13 SI Sharafat Hussain, who was the SHO of PS Haraiya, who started investigating the case which was registered in his presence on 3.2.1996 and who made the necessary entries about the registration of the case etc. on 3.2.1996. He also recorded the statement of the head constable Rudal Yadav. He proceeded to the place of incident in village Muradipur and recorded the statements of Smt. Batashi Devi and thereafter those of Phulpatta Devi, Urmila, Sumitra Devi, Dhruv Narain Singh and Shitla Prasad Verma and searched for the accused. In the night of 3/4.2.1996 at about 4.45 am he was successful in apprehending the accused near the bridge on the river Manorama while he was waiting for some transport. After locking up the accused in the police station he gave a direction for sending him to the Court of the Magistrate on 4.2.1996. Me again reached the place of incident where he prepared the site-plan on the pointing out of the informant, and her mother and noted the place which was situated in the front part of the house of the accused between the western and northern portion where the corpse of the deceased was found lying on a cot has been indicated in his site-plan (Ext. Ka-14). He was thereafter shown the hut of Smt. Phulpatta where he cut out blood-stained portions of the kathari (thin mattress) on which the body of the deceased was found lying and the white sheet with which Renu was covered, and prepared fards of the same marked (marked as Ext. Ka 15). He also recorded the statements of the witnesses of recovery. He then proceeded to the site with the informant and other villagers where the body was dug out on the bank of Manorama river and prepared its site-plan (Ext. Ka 16). On 6.2.1996 he recorded the statements of Jata Shanker Singh, Sona, Hira and some others. Thereafter he recorded the statements of the other witnesses such as the SDM, the doctor, the inquest witnesses etc. and sent the cut out pieces of cloth and kathri and the vaginal smears and swabs for pathological examination through Constable Hosala Prasad Pandey. He submitted the charge-sheet on 9.3.1996 (Ext. Ka 17).
12. PW 14 Constable Hosala Prasad Pandey was a formal witness who carried the bundles etc. relating to the case to the chemical examiner at Lucknow and deposited the receipt (Ext. Ka 18) at the police station.
13. The defence of the respondent was of denial. He pleaded ignorance about the incident and claimed that earlier the people of his clan used to work as labourers in the house of Dhruv Narain but when his father became a peon in the collectorate of Siddhartha Nagar they stopped working there, hence he had been falsely implicated in the case. He examined one witness Gangaram in defence who stated that after Manteku, the father of the accused, got a job as a collectorate peon and started living in Naugarh for the past 13 or 14 years they stopped working for Dhruv Singh which annoyed zamindar Dhruv Singh who falsely implicated the respondent in retaliation. He himself had taken a loan of Rs. 8000/-from Manteku which enabled him to open a beetle shop at the cinema hall Haraiya. In his cross-examination he admitted that at the time of the incident the deceased was staying with her maternal grandmother in her hut behind his house. He thereafter stated that at the time of the incident Renu and her grandmother used to sleep at the house of Ramesh. However he immediately resiled from this statement and said that the house of Ramesh used to be locked and all his family members were staying at Naugarh. But again he contradicted himself by saying that 4 or 6 days before the incident all the family members of Ramesh had come from Naugarh to the village and 4 days after the incident they went back to Naugarh but as Ramesh had been arrested in connection with this incident, he could not go back to Naugarh. He admitted that the grandmother of the deceased had virtually become blind at the time of incident. Zamindar Dhruv Singh was the chairman of the Nagar Palika, Haraiya at the time of the incident. He denied having falsely deposed in favour of the accused because he belonged to his caste i.e. because he was a Harijan or that he had falsely deposed in favour of Ramesh because he had got economic help from his father Manteku.
14. Learned I Addl. District and Sessions Judge, Basti, by his judgement and order dated 2.2.1999 in ST No. 312 of 1996 has been pleased to acquit the appellant who was charged under Sections 376, 302, 201 IPC. Against the said judgment the State has preferred the instant government appeal which was admitted by a Division Bench consisting of Hon. G.P. Mathur and Hon. U.S. Tripathi, JJ. on 11.10.2001. Non-bailable warrants were issued against the respondent and the record was summoned and the appeal was directed to be listed in March, 2002. The respondent was taken into custody. However, on 26.4.2002 the Division Bench consisting of Hon. S.K. Agarwal and Hon. K.K. Misra, JJ. observed that as they could not hear the appeal because of pressure of work they were granting bail to the respondent. On 12.12.2006 we heard this appeal but on the request of the learned Counsel for the respondent Sri Ramesh Kumar Tripathi the case was posted for hearing on 14.12.2006. As it could not be taken up on that date, it was heard on 15.12.2006. On the request of the learned Counsel the case was posted for 19.12.2006 when we heard the learned Counsel for the respondent and reserved our judgement.
15. Basically learned Counsel for the respondent reiterated the grounds for acquittal mentioned in the order of the learned sessions judge acquitting the respondent. The grounds for acquittal were:
(1) The four witnesses who were examined in order to prove the prosecution allegations that they had seen the accused Ramesh carrying Renu in his lap prior to the incident, viz. PW 3 Smt. Sumitra Devi, PW 4 Smt. Urmila Devi, PW 6 Smt. Hira Devi and PW 9 Smt. Sona Devi have failed to support the prosecution case and have stated in Court that on learning about the death of Renu they reached her grandmother's house where they found her dead body lying and learnt that her death was the result of paralysis. According to the learned judge, nothing has been elicited from the witnesses from which it could be concluded that they had turned hostile.
(2) PW 5 Ram Prasad @ Prasadi and PW 10 Bhikari have not supported witnessing the recovery of the pieces of 'kathari' and white sheet by the police.
(3) PW 1 Kunwar Dhruv Narain Singh claims to have written the FIR on information given by the informant Smt. Batashi Devi. He disclaims having any personal knowledge of the incident. However, the prosecution has made this witness depose that after the lodging of the report in the police station he called for Ramesh and as a result of his cajolery and persuasion Ramesh made an extra judicial confession of having participated in the incident. The witness claimed to have given this information to the police but the investigating officer has not supported this claim. There is also some contradiction between the statement in his examination-in-chief wherein this witness claims that he called this accused in the night to his house and the concluding portion of his cross-examination wherein he states that the accused had voluntarily come to his house. He was unable to recollect whether he had given this information to the police. He mentioned that the said extra judicial confession was made by the accused in the presence of Shitla Prasad Verma and Jata Shanker but both these witnesses have not supported this claim and Shitla Prasad Verma has in fact stated that he met PW 1 Dhruv Narain Singh one week after the incident. It was accordingly observed by the learned judge that the extra judicial confession of the accused made to this witness Dhruv Narain Singh was not reliable.
(4) Although PW 2 Smt. Batashi Devi also does not have any personal knowledge of the incident, in her examination-in-chief she has stated that PW 1 Dhruv Narain Singh had called the accused and enquired about the incident and the accused had admitted his complicity. However, the trial judge has given importance to the contradiction that this witness has stated in her cross-examination that PW 1 Dhruv Babu disclosed to her at the police station that the accused had murdered her daughter, hence the extra judicial confession to this witness is also not reliable.
(5) The circumstance that after committing the crime outside with the little girl the accused brought the corpse of the deceased back and placed it on her cot, has not been supported by any prosecution witness. The trial judge further observed that the prosecution has not been able to give any evidence to show that on the night of the incident Renu was sleeping in the house of the accused or that the dead body of Renu was found lying in the cot inside the house. The factum of the body lying in the house of the accused is also not mentioned in the FIR. Smt. Phulpattta Devi, the grandmother of the deceased, who could have been the best witness to prove this fact about the dead body lying in the house of the accused has not been examined by the prosecution and the prosecution could give no reason for her non-examination.
(6) The remaining two witnesses of fact PW 7 Jata Shanker Singh and PW 8 Shitla Prasad Verma belong to two villages which were 15 to 16 kms from the place of incident and they had been staying in the house of PW 1 in the village of incidence for the last 15 to 16 years to look after his agriculture. According to the prosecution version and the site-plan prepared by the investigating officer, these two witnesses saw the deceased Renu in the lap of the accused at point 'A' near a tree on the west of the house of the accused Ramesh. The said witnesses, who possibly were produced for proving this version, however, have vastly exaggerated their version in the Court and they now state that they heard the cry of the child and in the torch light they saw rape being committed on the child. On their cries other villagers arrived at the spot. The accused thereafter ran away leaving Km. Renu behind at the spot. Hence, these two witnesses discredited the version of the corpse of Renu lying in the cot in the house of the accused. If these witnesses had seen the incident and the cries had attracted the villagers and if the girl had been spotted lying on the west of the house at the spot alleged, there was no reason for the villagers not to have chased the accused or to have made efforts to apprehend him, nor in failing to lodge the report on the night of the incident itself and the mother of the deceased Smt. Balashi would not have been told that Km. Renu had died due to paralysis enabling her corpse to be buried. From this the learned sessions judge drew an inference that these two witnesses had not seen the incident and that they were liars. They have only deposed what was desired by the prosecution.
(7) From the prosecution evidence it was apparent that PW 1 was a big agriculturist and that the ancestors of the accused and other harijans of the village used to work as labourers. However, on account of the fact that the accused's father had got a government job, he did not work at Dhruv Narain's farm and neither did his family members work for him. Even the witness Gangaram had been able to set up a beetle shop with the assistance of the father of the accused which prevented the defence witness and others to work for Dhruv Narain, hence the accused had been falsely implicated by Dhruv Narain.
The Crucial Circumstance
16. We have carefully perused and analysed the evidence on record and the grounds for acquittal and the arguments of the learned Counsel for the respondent and the learned AGA.
17. The basic fallacy in the order of acquittal results from failure to appreciate the importance of the crucial circumstance in this case. There can be no denial of the fact that after the incident the mother of Renu Smt. Batashi Devi, PW 2, was called from her village Hahi and on being informed by the villagers that the little girl had died in the night as a result of paralysis, possibly due to cold she had proceeded to bury the child on the river bank with the help of the villagers. We think that the version given by this witness is very natural and believable that on the next date after the incident she heard some rumours that the accused had committed rape with her daughter and which had caused her death. After two days, i.e. on 2.2.1996, she went to the house of Dhruv Narain Singh. There Jata Shanker Singh and Shitla Verma informed her that on the night of the incident at about 9 pm the accused was sitting under a tree along with Renu. On this Dhruv Narain Singh called for Ramesh who confessed that he had done a very wrong thing leading to the death of Renu and began pleading for forgiveness. Thereafter on her suggestion Dhruv Narain wrote out the report which was lodged at P.S. Haraiya. On the basis of her FIR, which was lodged at the police station on 2.2.1996 at 6.10 p.m. the body of the deceased was dug out on 3.2.1996 at 9 or 9.30 a.m. on the orders of SDM, Haraiya. As pointed out above the corpse clearly showed marks of rape and injuries which had resulted in the death of Renu. There is not even a whisper or suggestion that the FIR was not lodged on the date alleged. Also the fact that the deceased had died as a result of the rape committed on her by the accused, was mentioned in the FIR, and which was in existence even prior to the retrieval of the dead body from under the ground. This fact was the most important circumstance which clinchingly established that the two witnesses PW 7 Jata Shanker and PW 8 Shitla Verma had actually last seen the deceased along with the accused and also the truth and reliability of the extra judicial confession wherein the accused had admitted to have committed rape on the girl, because this information came to light at a time when the body was lying under the ground. It may be noted that Smt. Batashi had earlier been made to understand that her daughter had died as a result of paralysis. In the light of this crucial circumstance we find that the conclusions of the trial judge for acquitting the accused cannot be sustained.
18. So far as the first point relating to women witnesses PWs 3, 4,6 and 9, not supporting the prosecution version is concerned, we think that the learned judge is wrong in the finding that these witnesses have not turned hostile. They had in fact been declared hostile and were cross-examined. So far as PW 3 Smt. Sumia Devi and PW 4 Urmila Devi are concerned, we find that both gave a deliberate ambiguous answer that they did not know whether in the night of the incident Renu was sleeping with her grandmother in her own house or in the house of the accused Ramesh. They did not have the courage to state clearly that the deceased and her grandmother were sleeping in her grandmother Smt. Phulpatta's house. Realizing the absurdity of the claim, these two witnesses did not have even have the courage to state that the girl had died due to paralysis. So far as witnesses PW 6 Hira Devi and PW 9 Smt. Sona Devi are concerned, they again appear to have resiled from their 161 Cr.P.C. statements and to have reiterated that PW 3 Smt. Sumiya and PW 4 Smt. Urmila were not even examined by the investigating officer and probably the deceased had died as a result of paralysis. We know this paralysis theory has been completely demolished by the postmortem examination report which clearly shows the cause of death of the deceased to be injuries and rape. We, therefore, think that for some extraneous reasons these four witnesses are not at all interested in speaking the truth and have made up their mind to protect the accused. It is quite possible that the witnesses might have been won over by the father of the accused Manteku who had a government peon's job and who has admittedly given money to the defence witness to set up a beetle shop and we would not be surprised if Manteku had bought out these poor Harijan women witnesses as well. We, therefore, think that the inference of the learned trial judge that there was nothing to suggest that these witnesses had turned hostile was arbitrary and perverse.
19. So far as the second point relating to the witnesses PW 5 Ram Prasad @ Prasadi and PW 10 Bhikari turning hostile and not supporting the recovery of the cutting of the "kathari" on which the deceased was said to be lying, is concerned, they also appear to have been won over by the father of the accused, perhaps for similar reasons as suggested for witnesses PWs 3, 4, 6 and 9 and they too appear to be resiling from the truth. The factum of taking the material exhibit, and preparing of the recovery memo with regard to the same, and sending the cut out portions to the serologist, who found blood and semen on them, (vide report dated 21.3.1996, Ext. Ka 21) cannot be disputed. The serological report also revealed that the vaginal swab which was taken by the doctor was also human blood and semen stained.
20. It has now been emphatically declared by the apex Court that a Court is not helpless if it feels that witnesses are being won over, and the Court is not to act as a mere tape recorder, but to make an active effort to unravel the truth. In paragraph 58 in Zahira Habibullah H. Sheikh v. State of Gujarat AIR 2004 SC 3114 the apex Court has clearly taken note of this problem and made the following observations:
58. The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot set swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code.
(Emphasis added).
21. As emphasized by the apex Court in Gura Singh v. State of Rajasthan AIR 2001 SC 330, Bhagwan Singh v. State of Haryana and Rabindra Kumar Dey v. State of Orissa et al that it is always possible to accept even part of the testimony of a hostile witness that the Court finds acceptable and credit worthy. There is no reason to discard the testimony of a hostile witness in toto.
22. The third ground for acquittal describing some confusion and contradictions in the testimony of PW 1 Dhruv Narain Singh, who was not an eye-witness and claims to have written out the FIR on the basis of the information from Batashi Devi are not very material. We also think that nothing significant turns on minor contradictions and confusion about the time when the extra judicial confession was made to PW 1 Dhruv Narain, whether it was before the FIR was lodged (as stated by PW 2, Smt. Batashi Devi) or after the lodging of the FIR, whether it was the result of this witness calling the accused Ramesh or whether Ramesh himself went to him and volunteered the information. Likewise the allegation of the failure of this witness to mention this fact to the investigating officer, is not fatal for the prosecution case. As mentioned above. the most natural version was given by the mother of the deceased PW 2 Smt. Batashi Devi in her examination-in-chief that she had returned to village Muradipur on hearing rumours of her daughter having been raped by the accused resulting in the child's death. This mother had initially buried her daughter at the banks of the Manorama river because she was made to understand that the 5 year old deceased had died as a result of paralysis in the night. Therefore she was initially not even interested in nominating this accused and did not even think that a crime had been committed. It was only after her meeting the witness PW 1 Dhruv Narain Singh, who called PW 7 Jata Shanker Singh and PW 8 Shitla Prasad Verma, who disclosed that they had seen the little girl along with the accused at 9 pm on the night of the incident and thereafter his summoning of the accused Ramesh who admitted to having committed rape on the girl and to have pleaded for forgiveness, that she appears to have decided to proceed to lodge the FIR and to request exhuming of the corpse of her deceased child for post mortem examination. As already noted above, the veracity and sanctity of this extra judicial confession is established from the fact that even when the body was buried under the ground the factum of rape on the body had come to light in the extra judicial confession of the accused which was confirmed and corroborated by the postmortem report and the medical evidence. Therefore, the usual argument that ordinarily an evidence of extra judicial confession is of weak character, has no application, in the facts of this case. Even the fact that Shitla Pd. Verma and Jata Shanker Singh did not admit that the accused had made the extra judicial confession in their presence, or the claim of PW 8 Shitla Pd. Verma that he met PW 1 Dhruv Narain Singh one week after the incident, is of no consequence. We see no reason why the investigating officer PW 13, SI Sharafat Hussain would depose in his evidence in Court that he had recorded the statements of Shitla Prasad Verma on 3.2.1996 and of Jata Shanker on 6.2.1996 if indeed Shitla Prasad Verma was away from the village for a week, and we think that Shitla Prasad Verma has made this averment in his cross-examination owing to some confusion or a memory lapse.
23. Likewise, the fourth ground for acquittal that there was some contradiction in the statement of PW 2 Smt. Batasi Devi, who had personal information of the incident as to whether the version mentioned in the examination-in-chief that Dhruv Narain Singh had called the accused who had disclosed about the incident to her and then they had proceeded to lodge the report was correct or whether the version mentioned in her cross-examination that Dhruv Narain Singh had disclosed to her at the police station that the accused had murdered her daughter, Renu and that was taken as another reason for not believing the extra judicial confession to her. It is obvious to us that Smt. Batasi Devi is an illiterate rustic woman and it appears that her statement in the examination-in-chief that Dhruv Narain Singh called for the accused after she met him who made the extra-judicial confession about the incident appears to be much more natural and believable in the circumstances mentioned. There was no reason for Smt. Basati Devi to have gone to the police station with Dhruv Narain to lodge the report if already she did not have the information about the complicity of the accused and the version as given in the extra-judicial confession of the accused as we have shown above was indeed borne out when the body of the deceased was dug out and the medical evidence confirmed the version in the extra-judicial confession that he had committed rape on the child causing her death.
24. So far as 5th ground of acquittal that the prosecution has not given any satisfactory evidence about the deceased lying on the cot in the house of the accused was concerned, and the accused having brought the deceased back and having placed her on the cot, it may be noted that in her FTR it is Smt Batashi Devi had stated that because her mother was very poor, she usually used to reside in the house of Ramesh accused and that her daughter was staying with her those days in village Muradipur. In their evidence PW 1 Kunwar Dhruv Narain Singh had stated in his examination-in-chief that Batashi Devi's daughter Renu was residing with her nani (maternal grandmother). Their family was very poor and that Renu's grandmother's house had collapsed, hence she used to sleep in the night along with her grand daughter Renu in the house of Ramesh from prior to the incident and that on the night of 30.1.1996 she was found lying dead on a bed in Ramesh's house. Significantly, there is no denial of these allegations in the cross-examination of PW 1 Dhruv Narain Singh. Even PW 2 Smt. Batashi Devi has stated in her examination-in-chief that her mother Phulpatta was very poor and that her Chhappar on her house had collapsed, hence she used to sleep in the house of Ramesh who lived nearby and that her daughter also used to sleep with her grandmother in the house of Ramesh. From one line that the body was lying on her door of her house before it was taken for burial at the banks of Manorama river, it cannot be inferred that the deceased had not slept in the house of the accused but at this house. Significantly, it has not even been suggested to this witness that the house of her mother in village Muradipur had not collapsed or that her mother Smt. Phulpatta and the girl used to sleep in Smt. Phulpatta's house and not in the house of the accused. Truth has a strange way of surfacing, and even the defence witness at one part of his cross-examination has blurted out that the deceased and her grand mother used to sleep in Ramesh's house, although he has immediately resiled from this admission. This position of the body lying on a cot in the khapraila house of Ramesh Harijan is shown in the site-plan prepared on 4.2.1996 (Ext. Ka 14). No doubt this site-plan was prepared after the second investigating officer Sharafat Hussain, PW 13, who was the regular in charge of the police station had returned from leave and the location of the cot was pointed out by Smt. Batashi Devi and other witnesses. It would have been better if some other witnesses had been examined to support this fact such as Smt. Phulpatta Devi, the mother of Smt. Batashi Devi. But as admittedly Smt. Phulpatta Devi was a very old woman who was virtually blind, the mere non-production of Smt. Phulpatta Devi was not fatal for the prosecution case because there was sufficient evidence to connect the accused with the offence, as noted above. Even to the investigating officer PW 13 Sharafat Hussain there is no direct suggestion that the dead body was not found at the place mentioned in the site-plan and that it was found in Smt. Phulpatta Devi's house or that St. Phulpatta Devi's house had not collapsed. To a specific question to the accused under Section 313 Cr.P.C. that the site-plan (Ext. Ka 14) had been prepared by the investigating officer after inspecting the spot, he had simply answered that he did not know how the site-plan was prepared in this manner. He did not even care to mention specifically that the dead body was not lying in his house but in Phulpatta's house. No doubt some confusion has arisen because the witnesses PWs 7 Jata Shanker Singh and PW 8 Shitla Prasad Verma had deposed that they had seen the accused at point 'A1 in the lap of the accused who was at some distance from his house and cot and under what circumstances the accused got the deceased back to her cot in his house has not been clarified. However, the circumstances of the case are such that if the body of the deceased was not found lying on the cot in the house of the accused where she used to normally sleep with her grandmother it would have aroused the suspicion of her mother, Smt. Batashi Devi and she would not have meekly agreed to take the body for burial merely because she was told by the persons present that the deceased had died due to paralysis in the night. From all these circumstances, we think that the trial Court has erred in reaching the conclusion that there was no material to suggest that the deceased used to sleep in Ramesh's house with her grand mother simply because the prosecution has failed to produce affirmative evidence to show that the body of the deceased was lying on a cot in the house of Ramesh after the incident or because it has not succeeded in bringing the circumstances on record as to how the body was placed on the cot in his house after commission of the crime by Ramesh.
25. So far as the 6th ground for acquittal that the versions deposed by the alleged eye-witnesses PW 7 Jata Shanker Singh and PW 8 Shitla Prsasad Verma that on hearing cries they had arrived at the spot and by means of torch lights seen the commission of the rape by the accused. The)' had raised a cry, whereupon other villagers had arrived and the accused had fled the spot. This version appears to be an exaggeration and a departure from their versions to the investigating officer and shown in the site-plan, which had described the deceased being seen in the lap of the accused at point 'A' near a tree on the west of the house of Ramesh. It is well-known that witnesses are prone to exaggerating matters, especially as in India where unfortunately lawyers and investigating and prosecuting authorities think that tutoring witnesses to make them appear as eye witnesses, who must furnish details of even that part of a crime that they have not actually witnessed maybe the only way to secure a conviction. Whereas the truth is that if the witness sticks to the whole truth, and discloses only that part of the version that he himself has witnessed, his testimony will actually be that much more firm and reliable. Looking to these difficulties in the prosecution disclosure of its case, it has become settled by a catena of authorities now, that simply because the witnesses exaggerates on one or two points is no ground to discard their entire testimony, if the same is confirmed by circumstances. There is great wisdom in the old saying that witnesses may lie but circumstances tell the truth. In the present case whereas the version disclosed to the investigating officer was only that these witnesses had seen the girl in the lap of the accused under the tree. They might have thought that he was trying to help the girl ease herself and, thereafter these witnesses may have left the spot. Only subsequently they might have learnt that the girl had died the previous night. This may have given rise to a suspicion in their minds that the girl had been raped and murdered by the accused in whose house she used to spend the nights with her old grandmother. This version appears far more probable. However, even if the complete version of these two witnesses, of their being actual eye-witnesses of the rape is not believed, this much is certain that these two witnesses saw the child with the accused in the night of the incident and her body was found in a cot at his house. Also that the accused on being called by the village landlord Dhruv Narain Singh admitted to have committed rape on Km. Renu and to have caused her death, which fact was corroborated when the already buried body of Km. Renu was dug out and the postmortem and serological examiner's version confirmed the presence of injuries and marks of rape on the girl. In such circumstances the evidence of these witnesses for connecting the accused with the crime is wholly adequate irrespective of the circumstance that the witnesses have indulged in exaggerations on some aspects. The fact that the home villages of these two witnesses were 15-16 kms away is also immaterial because admittedly they used to look after the cultivation and do other work for Dhruv Narain Singh and thus their presence and residence in the village at the time of incident cannot be held to be improbable. No enmity of these witnesses with the accused has even been suggested. Because of the discrepancies the evidence of these witnesses needs to be carefully scrutinized and to be accepted if their evidence is reliable on the whole. The following lines in paragraph 3 of the Apex Court decision in Sukhdev Yadav v. State of Bihar may be usefully perused:
3. It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account. In Appabhai v. State of Gujarat 1988 Suppl SCC 241, this Court in paragraph 13 of the report observed:
... The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may he discarded. The discrepancies which do shake the basic version of the prosecution case may he discarded. The discrepancies which are due to normal errors of perception or observation should not he given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such facts, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses now a days so on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy....
(Emphasis added).
26. On the same lines we find the following observations in Sucha Singh v. State of Bihar , paragraph 18 at pages 3622 and 3623 which examines a conspectus of decisions on the point:
18. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana . Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one tiling, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must he disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, hut it is not what may he called 'a mandatory rule of evidence.' (See Nisar Ali v. State of Uttar Pradesh . Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also he acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See (Gurcharan Singh and Anr. v. State of Punjab . The doctrine is a dangerous one specially in India for if a whole body of the testimony were to he rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to he appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to he insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must he disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrah s/o Beli Nayata and Anr. v. State of Madhya Pradesh ) and Ugar Ahir and Ors. v. State of Bihar . An attempt has to he made to, us noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to he made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh and Balaka Singh and Ors. v. State of Punjab . As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. AIR 19S1 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may he. Material discrepancies ore those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. . Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.
(Emphasis added).
27. On these criteria we find it safe to rely on the testimony of these two witnesses for establishing the complicity of the accused in the crime as their evidence is independently corroborated in material particulars by other circumstances on record, in spite of their entire testimony in Court not being complete acceptable.
28. The last ground for acquittal that PW 1 Dhruv Narain Singh. a large agriculturist and village landlord had falsely implicated Ramesh because Ramesh's father Manteku had got a peon's job in the Collectorate and was able to dissuade other Harijans for working for Dhuv Narain, appears to be far fetched. There is no evidence that Ramesh or his father used to work for Dhruv Narain. Even if the father of Ramesh got a government job of peon, he could never have been in a position to dissuade all the Harijans in the village from working for Dhruv Narain. As we have already noted that in this case initially the name of Ramesh did not even figure. If Dhruv Narain was interested in falsely implicating the respondent, he would have induced Smt. Batashi to lodge the report at the initial stage itself nominating the accused, and to have discouraged, her from burying the body of the child. Only after Smt. Batashi Devi returned from her village Hahi to the village of incident Muradipur after two days on hearing rumours of the rape and murder of her daughter, she met the witnesses Shitla Prasad Verma and Jata Shanker Singh and the accused also made an extra judicial confession to her, perhaps on the prompting of PW 1 Dhruv Narain Singh, and only thereafter she appears to have lodged the report. The version and the extra judicial confession by the accused were corroborated by the injuries etc. on the exhumed dead body of the child.
29. The principles for appreciating the evidence in appeals against acquittal under Section 378 Cr.P.C have been aptly enunciated by the apex Court in Bhagwan Singh v. State of U.P. , State v. Satish and Ors. : , State of M.P. v. Dharkole and a catena of other authorities which emphasize that the "golden thread" that runs in appeals against acquittals is that an order of acquittal reinforces the presumption of innocence in favour of an accused, and that if two views of the evidence are possible, one of which is favourable to the innocence of the accused and the other pointing to his guilt, the former is to be preferred. But it has also been clarified that the aforesaid limitations are only judge made, and where there appears to have been a miscarriage of justice because criminal Courts are as interested in punishing the guilty as in exonerating the innocent, either because important evidence has been ignored or undue weight given to unimportant circumstances, then it is incumbent upon the superior Court to review the evidence in its entirely and to interfere with an order of acquittal.
30. In this regard it would be appropriate here to allude to paragraph 7 of Bhagwan Singh v. State of M.P. :
7. We do not agree with the submission of the learned Counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial Court even if it found that the view taken by the trial Court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate Court but a Judge-made guidelines for circumspection. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to re appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the trial Court which may not be disturbed in the appeal is such a view winch is based upon legal and admissible evidence. In the instant case the trial Court acquitted the respondents by not relying upon the testimony of three eve-witnesses, namely, Kiran (P. W. 7), Mukesh (P. W 12) and Jagdish (P. W. 22) on considerations which apparently appeared to be extraneous. Such findings of acquittal apparently are based upon erroneous views or the result of ignoring legal and admissible evidence with the result that the findings arrived at by the trial Court are held to be erroneous. The High Court has ascribed valid reasons for believing the statements of those witnesses by pointing out the illegalities committed by the trial Court in discarding their testimonies. The High Court has also rightly held that the trial Court completely ignored the basic principles of law in criminal jurisprudence which entitles the accused to claim the benefit of right of self defence. Without there being any legal and admissible evidence but swayed by finding some injuries on the person of the accused, the trial Court wrongly held that the respondents were justified in causing the death of three persons in exercise of their right of self-defence. No fault, therefore, can be found in the judgment of the High Court on this ground.
(Emphasis added).
31. In paragraphs 20, 21 and 22 of Sucha Singh v. State of Punjab it has been emphasized that undue stress cannot be given to the rule of benefit of doubt to the detriment of the legitimate need of society for social justice:
20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and Ors. AIR 1990 SC 200. Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava . A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from_ being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and Anr. v. Stale (Delhi Admn.) AIR 197S SC 1091. Vague hunches cannot take place of judicial evaluation. "A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties." (Per Viscount Simen in Stirland v. Director of Public Prosecutor 1944 AC (PC) 315 quoted in State of U.P. v. Anil Singh . Doubts would be called reasonable if they are free from a zest for (distract speculation. Law cannot afford any favourite other than truth.
21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobadc v. State of Maharashtra ... The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are ahvays good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt....
...The evil of acquitting a guilty person light heartedly as a learned author Clanville Williams in 'proof of guilt' has sapiently observed, goes much beyond the simple, fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless....
...a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....
22. The position was again illuminatingly highlighted in State of U.P. v. Krishna Copal . Similar view was also expressed in Gangadhar Behera and Ors. v. State of Orissa (Emphasis added).
32. In the light of the aforesaid principles we think that the grounds for acquittal in the instant case are illegal unwarranted and based on a misappreciation of the evidence because of attachment of undue weight to unimportant discrepancies and inconsistencies, which has resulted in a miscarriage of justice. In this view of the matter the acquittal of the accused by the trial Court is set aside. The accused is hereby convicted and sentenced under both Sections 302 IPC and 376 IPC.
33. The last question that arises is as to what should be the appropriate sentence in this case. In a recent decision of the apex Court in Amrit Singh v. State of Punjab Cr. Appeal No. 1327 of 2005 decided on 10.11.2006 involving rape of a 7-8 year old child where the antemortem injuries showed bleeding from the vulva, dry leaves in the hairs, mouth open and froth trickling out from left angle, but there was no evidence of strangulation and excess of bleeding appeared to be the cause of death (which was similar to the position in the present case where also the postmortem report did not indicate asphyxia, and shock and haemorrhage had been described as the cause of death), the apex Court concluded that even though the offence of brutal rape "may look heinous but under no circumstances, it can be said to be a rarest of rare case" justifying a death sentence and awarded imprisonment for life. The act of the appellant Amrit Singh therein was described as a momentary lapse on seeing a lonely girl at a secluded place.
34. Again in Surendra Pal Shivbalakpal v. State of Gujarat 2004 Cri. L.J. 4642 where the accused who was a migrant labour aged 36 years and was found involved in the kidnapping, rape and murder of a little girl, and where the cause of death was asphyxia and the dead body of the deceased Savitri @ Sanju was even discovered in pursuance of the statement of the appellant under Section 27 of the Evidence Act. However the death sentence awarded by the Courts below was altered by the Apex Court to a sentence of life imprisonment on the grounds that there was no evidence that the appellant was involved earlier in any other criminal offence. He was a migrant labour from U.P. and living in impecunious circumstances and it could not be said that he would be a menace to society in future, and no material was placed to support such a contention by the prosecution. Hence the Hon'ble Supreme Court did not think that it was a 'rarest of rare case' calling for the death penalty, and instead awarded life imprisonment.
35. In the instant Government appeal against acquittal, where the accused was released pursuant to his acquittal dated 2.2.99, and thereafter on admission of the Government Appeal and issuance of non-bailable warrants therein he was taken into custody on 7.12.2001. However he was again released on bail by orders of this Court dated 26.4.2002 and thereafter he has remained on bail. There is no material on record to suggest that he committed any offence or misused the bail granted to him in any manner. In this view of the matter and in the light of the observations in the aforesaid two decisions of the Hon'ble Supreme Court we do not think that this is 'a rarest of rare case' where only a sentence of death must be awarded and the option of awarding life imprisonment is unquestionably foreclosed. We think that the ends of justice would be met if the respondent accused Ramesh Harijan is sentenced to imprisonment for life both under Sections 302 and 376 IPC. Both the sentences shall run concurrent.
36. The accused, Ramesh Harjan, is on bail. His bail bonds are cancelled and sureties are discharged. He should be taken into custody forthwith to serve out the sentence awarded to him.
The office is directed to communicate this order to the CJM concerned within a week for compliance.