Himachal Pradesh High Court
Anil Chauhan Alias Anu vs State Of Himachal Pradesh on 13 March, 2018
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Criminal Appeal No. 338 of 2016
Judgment reserved on : 2.1.2018
Date of Decision : March 13 , 2018
Anil Chauhan alias Anu ...Appellant
r Versus
State of Himachal Pradesh ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice, Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes.
1
For the appellant : Mr. V.S. Rathour, Advocate, for the appellant.
For the respondent : Mr. Ashok Sharma, Advocate General with
Mr. M.A. Khan, Addl. A.G. and Mr. J. K. Verma, Dy. A.G. for the respondent-State.
Sanjay Karol, ACJ.
Assailing the judgment dated 31.5.2014, passed by learned Addl. Sessions Judge-I, Shimla, H.P., in Sessions Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 2Trial No. 2-R/7 of 2013, titled as State of H.P. vs. Anil Chauhan alias Anu, whereby the accused stands convicted .
of the offences punishable under the provisions of Section 452, 364, 376 (2)(f) and 302 of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced to undergo rigorous imprisonment for a period of 5 years and pay fine of `5,000/- and in default thereof, to further undergo imprisonment for a period of six months for offence under Section 452 of the IPC; rigorous imprisonment for a period of 6 years and pay fine of `10,000/- and in default thereof, to further undergo imprisonment for a period of one year for offence under Section 364 of the IPC; life imprisonment and pay fine of `10,000/- and in default thereof, to further undergo imprisonment for a period of one year for offence under Section 376(2)(f) of the IPC; and life imprisonment and pay fine of `10,000/- and in default thereof, to further undergo imprisonment for a period of one year for offence under Section 302 of the IPC, he has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973.
::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 32. In crux it is the case of the prosecution that on 23.7.2012, accused Anil Chauhan, after committing house .
trespass with an intent of causing hurt, not only assaulted complainant Rajinder (PW-1) and his wife Anita (PW-2) but forcibly took away their minor daughter, aged two and a half years (name concealed) and after committing sexual assault, murdered her. As such, accused stands charged for having committed offences punishable under the provisions of Sections 452, 364, 376(2)(f) and 302 of the IPC, to which he did not plead guilty and claimed trial.
3. The accused stands convicted on all counts and directed to serve the requisite sentence of imprisonment as also pay fine. Correctness of findings returned by the learned trial Court is subject matter of the present appeal.
4. We have heard Mr. V.S. Rathour, learned counsel, on behalf of the appellant as also Mr. Ashok Sharma, learned Advocate General, on behalf of the respondent-State. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 4 interference is made out at all. We find the findings returned by the trial Court to be based on complete, correct .
and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. Prosecution has been able to prove its case, beyond reasonable doubt.
5. From the evidence emanating from the record, it is clear that none saw the accused commit rape and kill the deceased. Such fact is sought to be established by the prosecution by way of circumstantial evidence. With regard to the offence of house trespass and kidnapping/abduction of the minor, prosecution seeks to establish the charge both by way of direct and circumstantial evidence.
6. It is a settled principle of law that prosecution has to establish the guilt of the accused beyond reasonable doubt and more so in relation to the charged offence which is sought to be established by way of circumstantial evidence. It is also a settled proposition of law that when there is no direct evidence of crime, the guilt of the accused can be proved by circumstantial evidence, but then the ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 5 circumstances from which the conclusion of guilt is to be drawn, should be fully proved and such circumstances must .
be conclusive in nature, to fully connect the accused with the crime. All the links in the chain of circumstances must be established beyond reasonable doubt, and the proved circumstances should be consistent, only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial evidence, the Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence.
7. The charge of house trespass and abduction is sought to be established by direct evidence, through the testimonies of eye witnesses Rajinder (PW-1), Anita (PW-2), Meera Devi (PW-3) mother of the accused, who has not supported the prosecution and Hukam Singh (PW-4).
8. The charge of murder and rape is sought to be established by way of circumstantial evidence through the testimonies of Rajinder (PW-1), Anita (PW-2), Hukam Singh (PW-4), Biru (PW-5) and Suchitra Devi (PW-13) and documentary evidence i.e. disclosure statement, memo of ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 6 recovery and scientific evidence. Significantly all these persons are independent witnesses.
.
9. By way of medical evidence through the testimonies of Dr. Piyush Kapila (PW-9) and Dr. Dalip Sharma (PW-14) as also Const. Kuldeep Singh (PW-6) and Const. Karun Kishore (PW-18), prosecution has tried to corroborate such ocular evidence.
10. Record reveals that with the recording of 19 prosecution witnesses, statement of the accused under Section 313 Cr.P.C. was also recorded. Significantly not only from the admission made by him in such statement but also from the line of cross examination of the prosecution witnesses and the defence sought to be established through the testimonies of two witnesses, his wife Babli (DW-1) and brother Sushil Kumar (DW-2), factum of the presence of the accused, on the fateful night i.e. 23.7.2012 at 9.30 p.m., in a drunken condition, at the house of the complainant, stands admitted. He has taken a defence that while he was crossing the house of the complainant, he was given beatings with a danda, as a result of which he sustained injuries. Hearing the cries, his mother (PW-3), wife (DW-1) ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 7 and brother (DW-2) reached the spot and took him away to his house. What happened thereafter is only a concocted .
story, for in the middle of night (at about 1.30 a.m.), police came and took him to the police station.
11. It is in this backdrop we proceed to examine the evidence led by the prosecution.
12. From the testimony of J. D. Bhardwaj (PW-10) it is evident that complainant Rajinder (PW-1) was employed by him. On 23.7.2012 at about 9.30 p.m., complainant called him on phone informing that the accused was quarrelling.
On his asking, Anita made him speak with Babli (DW-1) who was requested to ask the accused not to indulge in such acts. Same night at about 10.15 p.m., he telephonically lodged the complaint at Police Station Rohru vide Rapt No. 42(A) (Ext. PW-19/A), informing that the accused was giving beatings to the complainant and his family members. Later on, complainant also informed that his daughter was missing. Now significantly there is no cross examination of the witness on this aspect. In fact, it would be fruitful to reproduce the exact cross examination part of his testimony which reads as under:
::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 8"Anita informed me that Anil has consumed excessive liquor and due to that reason we are .
unable to control him. House of accused Anil is quite nearer to my house. Anita also informed me that they are trying to take Anil to her home".
13. Now this version stands corroborated by police officer SI Bhupender Pal (PW-19) who was posted as ASI Police Station, Rohru, who further states that alongwith other police officials, same night, he reached the house of the complainant where they found the accused to have been caught by three - four persons. Complainant (PW-1) got his statement under Section 154 Cr. P.C. (Ext. PW-1/A) recorded which led to the registration of F.I.R No. 73/2012, dated 24.7.2012 (Ext. PW-15/A) under the provisions of Section 364 IPC registered at Police Station Rohru, Distt.
Shimla, H.P. Whereabouts of the missing girl were inquired from the accused who was detained under the supervision of HC Puran Chand (PW-16), but since accused did not disclose anything, police party went searching for the child.
At about 4.30 a.m., police returned to the house of the complainant. The accused was sent for medical examination for the reason that there were stains of blood on his clothes.
::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 9While in police custody, the following morning i.e. 24.7.2012, in the presence of independent witnesses .
Suchitra Devi (PW-13) - a Ward Member and Hukam Singh (PW-4), accused made a disclosure statement (Ext. PW-4/A) to the effect that after picking the deceased from the house of the complainant and after committing assault, threw her in the river at a place, of which only he had knowledge and could get identified.
r Resultantly accused took the police and the witnesses to the spot and got recovered dead body of the deceased.
14. What really transpired in the house of the complainant stands narrated by witnesses. We now proceed to examine their testimonies.
15. As already observed, Babli (DW-1) and Sushil Kumar (DW-2), in their testimonies have already admitted not only their presence but also that of accused at the spot.
According to these witnesses, accused who was totally drunk, was beaten up by the complainant and his wife and after hearing cries, they reached the spot and took him away. Babli states that after reaching house accused had sex with her and went off to sleep and Sushil slept in ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 10 another room with his mother. Well we are not inclined to accept the version of these witnesses to be true, believable .
or probable, for none of the witnesses reported the matter either to police officials who were present on the spot or to the neighbours/public representatives/ authorities concerned. In fact, such defence stands taken for the first time only in Court. It is not that complainant was an influential person. Equally it is not their case that his employer, J. D. Bhardwaj (PW-10), had exercised or exerted any undue influence. In fact, it is not the suggested case of the accused that investigation was misdirected for having been conducted under the influence of any person or out of motivation and malice. One cannot ignore the fact that the complainants are not local persons. They are Nepali nationals and labourers. They had come to serve their master just seven months prior to the occurrence of the incident. Neither the complainant, nor his wife, much less their master, was harboring any animosity with the accused or his family members. The plea of false implication, in our considered view, is not well founded, much less probable.
::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 1116. Here we may also observe what the Doctor who conducted the medical examination of the accused had to .
state about the injuries on the body of the accused. Dr. Dalip Sharma (PW-14) testifies that on medical examination accused was smelling of alcohol. On medical examination, he found certain injuries on the body of the accused and that being, abrasion on the right arm, multiple abrasion on right elbow, abrasion on front of neck, as also injury on the penis which could be caused as a result of sexual intercourse. MLC (Ext. PW-14/B) stands duly proved by him.
17. Now when we notice the testimony of Dr. Piyush Kapila (PW-9) who conducted the post mortem of the dead body of the deceased, we notice him to have testified the deceased to have sustained the following injuries:
"Face:
1. Pressure abrasion in an area of 3 X 1 cm on left zygomatic area, Pale yellowish to brown just below Left eye on lateral aspect, post mortem in nature.
2. Brown yellowish parchmentised pressure abrasion on upper eye lid on medial aspect, transverse, 1 cm X 0.2 cm postmortem in nature.
3. A linear pressure abrasion, transversely placed on left Lower mandibular margin, measuring 3 X 0.2 cm, Pale, Postmortem in nature.::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 12
4. 0.2 X 0.2 cm brownish yellow abrasion, 1 cm below outer aspect of Lower right eye lid, .
Postmortem in nature.
5. 1 X 0.2 cm yellowish abrasion on medial aspect of right eye over nasal area, postmortem in nature.
6. 1 X 0.2 cm yellowish, brown abrasion on right side of roof of nose just medial to inner right canthus, postmortem in nature.
Note: No injury was found on inner aspect of lips, frenulum or mucosa, however abrasion was present on upper lip (visible outside)."
Also following injuries were found on her private parts:
"Perineal Area: Blood fluid still oozing out of vagina and blood stains present on medial aspects of thighs and perineal area.
Gross abrasion reddish on inner aspect of Labia Minora alongwith reddish contusions as well as in Labia majora and adjoining vaginal opening.
Hymen ruptured at 6 O'Clock position with 2nd degree perineal tear, comprising of rupture of subcutaneous tissue, mucosa and skin of forchette almost reaching to upper margin of anus. Laceration measures 3 cm X 2 cm X muscle deep. Vaginal swab was taken for DNA profiling. 1 cm X 0.2 cm laceration was present skin deep on 6 O'Clock Position on Midline posterior to anal opening. All injuries mention in perineal region are antemortem in nature."::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 13
The post mortem report is Ext. PW-9/D. Dr. Kapila has categorically opined {(Ext. PZ) on application (Ext. PW-
.
19/M)} that before her death, deceased was subjected to sexual intercourse.
18. We now examine as to what the complainant has to say about the events which took place on the spot.
19. Complainant (PW-1), who is a labourer, states that on 23.7.2012 at about 9 p.m., accused came to his house and after entering the kitchen, started abusing his wife (PW-2). When she went out, accused slapped her.
Immediately she called for the family members of the accused who came and took him away. However on their asking, both he and his wife hid in the orchard. At that time, their daughter was sleeping inside the house. Soon, accused freed himself from his family members and after entering the room of their house picked her and went towards the river side. All this, they watched from the orchard. Soon thereafter he alongwith Biru and Kagu went to trace the girl when they met the accused near the river.
At that time, the girl was not with him. Since she was not traceable, he informed his employer, who in turn, informed ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 14 the police and same day police reached his house, where he got his statement (Ext. PW-1/A) recorded which was thumb .
marked.
20. The testimony of this witness is inspiring in confidence. We see no reason to disbelieve the version so narrated by him. We do not find his credit to have been impeached in any manner. He is a reliable witness. As already observed he had no reason to falsely implicate the accused or depose as such, in Court. The cross examination part of his testimony is only in the line of what we have discussed earlier. But what further, rather unrebuttedly, stands deposed by this witness in his cross examination, is that the accused was under the influence of liquor and that even his brother had gone to trace the deceased.
21. Even Anita (PW-2), wife of the complainant, has corroborated such version and we do not find her to have deposed falsely. Her credit also cannot be said to have been impeached in any manner.
22. At least, to such extent, the charge of the prosecution, with regard to the accused having entered the house of the complainant; abused his wife; slapped her and ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 15 taken away the minor child from the house stands established by the ocular version of the witnesses. We have .
already noticed that such fact stands corroborated by their employer.
23. We may also observe that Meera Devi (PW-3), mother of the accused, stepped into the witness box but did not support the prosecution. She was declared hostile and cross examined by the Public Prosecutor. But however, unrebuttedly even she admits that "It is correct that we took with us Anil from the dera of Rejinder but Anil was reluctant to come with us". ...... "It is correct that after hearing noise of my son I along with my son and daughter in law reached near that septic tank" and "We took Anil with us as he was heavily drunken". She states that only on the basis of suspicion, police and the complainant falsely implicated her son. In our considered view, this witness, does not shatter the prosecution case, in any manner. Her version that the complainant and his wife were giving beatings to the accused with danda and rod and that the accused fell down near the septic tank and sustained injuries, is not believable. We discount such version, for the ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 16 matter not having brought to the notice of anyone. It is an afterthought. She has not deposed truthfully. In fact, feigns .
ignorance about certain facts. Though she states that after taking the accused home, she bolted the room and went off to sleep, but, does not remember as to when the police came. Now this version is totally unbelievable, in fact, stands belied through the testimony of Sushil Kumar (DW-
2), according to whom he was sleeping with his mother and when the police came, he opened the door and at that time they took the accused to the spot.
24. Version of such of the eye-witnesses who have supported the prosecution, stands corroborated by circumstantial evidence, that being the disclosure statement (Ext. PW-4/A) recorded by SI Bhupinder Pal (PW-
19) in the presence of Hukam Singh (PW-4) and Suchitra Devi (PW-13). Both the independent witnesses are local residents and did not harbour any animosity against the accused. They have testified about the disclosure statement to the effect that after committing sexual assault on the minor, accused killed her and threw her dead body in the river. We can take notice of the fact that river is not ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 17 adjacent to the house of the complainant. It is at a distance and the child could not have walked to the place where the .
dead body was recovered. The child did not die as a result of drowning but as a result of shock and hemorrhage. The accused took the police and the witnesses to the place of crime and got recovered the dead body, proceedings in relation thereto, were got prepared and proven as Ext. PW-
4/B). r
25. Statements of independent witnesses as also police officials with regard to such circumstance are totally believable and inspiring in confidence. Suchitra Devi is categorical that in the police station accused made disclosure statement (Ext. PW-4/A) and thereafter got the body recovered. None knew about the place where the dead body was lying. To similar effect is the statement of Hukam Singh.
26. The Investigating Officer SI Bhupender Pal (PW-
19) states that for DNA profiling, opinion of the expert was obtained. As per opinion of the expert (Ext. PX) who conducted the DNA test, samples of blood of the deceased found on clothes (Exhibit-4a & Exhibit-4b), vaginal swab ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 18 (Exhibit-5), belongings of the deceased (Exhibit-6), matched with the DNA profile of blood found on the clothes (Exhibit-
.
12a, Exhibit-12b, Exhibit-12d) worn by the accused.
Testimony of police officials on the issue of collection of incriminating articles and case property and after sealing having kept the same in safe custody and not tampered at all, till the time of deposit at the FSL Junga, stands duly established by the Investigating Officer (PW-19), HC Amrit Singh (PW-8) and Const. Karun Kishore (PW-18). We need not elaborately discuss their testimonies, for such fact is seriously not disputed before us.
27. Thus, the ocular version as also the documentary evidence clearly establishes complicity of the convict in the alleged crime. The prosecution witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable.
28. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offences he stands charged for. There is sufficient, convincing, cogent and reliable evidence on record to this effect. The ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 19 circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses.
.
The guilt of the accused stands proved beyond reasonable doubt to the hilt. It cannot be said that the accused is innocent or not guilty or that he stands falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved.
29. Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence that accused Anil Chauhan after committing house trespass with an intent of causing hurt, not only assaulted complainant Rajinder and his wife Anita, but forcibly took away the deceased, a minor aged two and a half years and after committing sexual assault, murdered her.
30. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the ::: Downloaded on - 15/03/2018 23:00:48 :::HCHP 20 trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, .
irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Findings of conviction cannot be said to be erroneous or perverse. Hence, the appeal is dismissed.
31. Appeal stands disposed of, so also pending application(s), if any.
Records of the Court below be immediately sent back.
(Sanjay Karol), Acting Chief Justice.
(Ajay Mohan Goel), Judge.
March 13 , 2018 (PK)
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