Madhya Pradesh High Court
Vrindawan vs State Of M.P. on 7 July, 2022
Author: Rajeev Kumar Shrivastava
Bench: Gurpal Singh Ahluwalia, Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH
AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR
SHRIVASTAVA
CRIMINAL APPEAL NO.289 of 2012
Between:-
VRINDAWAN, SON OF LATE
KOMAL, CASTE:- ADIWASI,
AGED 22 YEARS, RESIDENT OF
VILLAGE NOWKUND, POLICE
STATION KURWAI, DISTRICT
VIDISHA (MP)
.... APPELLANT
(SHRI B.K.KULSHRESHTHA- ADVOCATE FOR
APPELLANT )
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION KURWAI,
DISTRICT VIDISHA
....RESPONDENT
2
(SHRI SANJAY KUMAR SHARMA - PUBLIC
PROSECUTOR FOR THE RESPONDENT
/STATE )
Reserved on : 30-06-2022
Delivered on : 7th July, 2022
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This appeal coming on for final hearing, Hon'ble Shri
Justice Rajeev Kumar Shrivastava, passed the following:
JUDGMENT
The present criminal appeal has been preferred by appellant- Vrindawan from jail, challenging the judgment of conviction and sentence dated 8th September, 2011 passed by Second Additional Sessions Judge, Vidisha (MP) in Sessions Trial No 334 of 2010, by which he has been convicted u/S. 302 IPC and sentenced to undergo Life Imprisonment with fine of Rs.1,000/-, u/S 376(1)(f) IPC, sentenced to undergo rigorous imprisonment of Ten Years with fine of Rs.1,000/- and further u/S. 201 IPC, sentenced to undergo RI of three years with fine of Rs.500/- and in default thereof, he has been further directed to undergo 5 months, 5 months and 3 months additional imprisonment respectively. All sentences have been directed to 3 run concurrently.
(2) Prosecution case, in brief, is that on 25-03-2010 Nand Lal (PW1) Chowkidar of village Nowkund gave an information to Police Kurwai to the effect that grand-daughter [hereinafter referred to as the ''deceased- prosecutrix (X)''] of Boonda Bai (PW2) of his village disappeared from where on 02-03-2010. He further informed that at about 05:00 in the evening Guman Adiwasi of village stated that the deceased prosecutrix (X) was lying in the drain water. On the basis of such information, merg no.11/2010 (Ex.P1) was recorded & the investigation was triggered. Photographs of deceased were taken. Drain water and a shawl of brown colour were seized vide Ex.P2. Spot map Ex.P3 was also prepared. After observing required proceedings pertaining to lash panchanama and issuance of safina form Ex.P4, naksha panchanama Ex.P5 was prepared. Postmortem of the deceased was conducted on the basis of requisition form Ex.P6-A, the report of which is Ex.P6 given by Dr. PK Jain (PW5). Viscera, sample of fluid, tibia bone of leg, clothes and 4 sample of seal were seized vide Ex.P8. On the basis of requisition Ex.P7A, the accused was examined and found to be fit for intercourse by physician vide Ex.P7. After enquiry, FIR Ex.P11 was registered against accused vide Ex.P12 and thereby, the police arrested the accused. Before entire process, the missing person report Ex.P18 was registered on the basis of information given by Boonda Bai, grand-mother of deceased- prosecutrix(X) on 24-03-2010. Seized articles were sent for their chemical analysis to FSL, Sagar and FSL, Bhopal, reports of which are Ex.P13 & Ex.P14. Thereafter, the statements of witnesses were recorded.
(3) After completion of investigation, a charge sheet was filed against the appellant- accused under Sections 302, 376, 201 of IPC before the Court of competent jurisdiction where- from it was committed to the Court of Session. The Sessions Court framed charges against the accused under Sections 302, 376(1)(f), 201 of IPC to which the appellant- accused abjured his guilt, pleaded complete innocence and prayed for trial. 5 During trial, under Section 313 CrPC, the statement of accused was also recorded in which he belied the prosecution story and stated that for the last three years, he at Anand Nagar in Bhopal was working as a labourer with Ganesh Sahu and he has falsely implicated in the matter. However, the accused did not examine not a single witness in support of his defence. The prosecution, in support of its case, examined as many as 12 witnesses. (4) The trial Court, after appreciating the entire evidence, led by the prosecution and relying on the same, found charges against appellant as proved and accordingly, convicted and sentenced him for the offences as mentioned above in paragraph 1 of this judgment.
(5) The learned counsel for the appellant contended that the judgment passed by the Trial Court is contrary to law. The Trial Court has not properly appreciated the evidence of prosecution witnesses. There are material contradictions and omissions in evidence of Boonda Bai (PW2) the grand-mother of deceased- prosecutrix (X) and Pooja (PW3), the elder sister of deceased- 6 prosecutrix (X) which have not been considered by the Trial Court. It is further contended that Pooja (PW3) is a tutored witness, therefore, her evidence is not reliable. It is further contended that there was no enmity of the appellant with deceased-prosecutrix(X), therefore, no question is made out on the motive of appellant for commission of murder of deceased prosecutrix (X). Therefore, the appellant is entitled for acquittal and impugned judgment of conviction and sentence deserves to be set aside.
(6) Per contra, learned State Counsel supported the impugned judgment and submitted that there being no infirmity in the impugned judgment of conviction and sentence and the findings arrived at by Trial Court do not require any inference by this Court. Hence, prayed for dismissal of this appeal. (7) The crux of the matter is whether the appellant- accused has murdered the deceased- prosecutrix (X) who is a minor girl aged around 7 years after committing rape with her and causing disappearance of evidence from the offence he committed. 7 (8) We have heard learned counsel for the parties and perused impugned record as well as gone through the evidence of prosecution witnesses .
(9) Nand Lal (PW1) who is Chowkidar of Village Nowkund in his deposition stated that the villagers Bhikam and Guman informed him regarding a corpse lying in a drain and thereafter, he went there and on seeing corpse, he informed Police Kurwai where a report of incident was lodged vide merg intimation Ex.P1.After lodging report, the police reached the village and sent corpse of deceased-prosecutrix (X) to the hospital bringing out her dead body from drain water. Police seized some clothes of the deceased along with drain water collected in a bottle vide seizure memo Ex.P2 and thereafter, prepared the spot map Ex.P3 and after preparation of safina form Ex.P4 Naksha Panchanama of dead body of the deceased-prosecutrix (X) and lash panchanama Ex.P5 were prepared. This witness in para 7 of his statement deposed that he did not know how the deceased- prosecutrix (X) died. This witness in para 8 admitted 8 that he had filled the drain water in a bottle. This witness deposed that the villagers alleged that accused Vrindawan committed murder of deceased-prosecutrix (X) and this witness in para 11 of his cross-examination admitted that the villagers had seen the accused with the deceased-prosecutrix (X). This witness denied that he is making a false statement at the instance of police.
(10) Boonda Bai (PW2) who is the grand-mother of deceased- prosecutrix (X) in her evidence deposed that on the date of incident, she had gone for selling grams (Chane) and returned back at 05:00 in the evening. In the morning of next day, she went to lodge a report at Police Station Kurwai. This witness in para 4 of her cross-examination deposed that the day on which she lodged a missing report of her grand-daughter deceased- prosecutrix (X) at police, next day of that, the police came to village and this witness also denied that she is making false a statement in collusion with accused.
(11) Pooja (PW3) who is the elder sister of deceased- 9 prosecutrix in her evidence deposed that after death of her father and mother, she was living with her grand-mother Boonda Bai. She identified the accused in the Court, who is her uncle in relative. This witness admitted that in the evening the accused took the deceased-prosecutrix (X) away. This witness in para 7 of her cross-examination admitted that on arrival of her grand-mother, she narrated the incident. This witness in para 8 deposed that the corpse of deceased-prosecutrix (X) is lying in a drain and this fact was narrated by Kakku and Bhikam. This witness denied that she did not inform to her grand-mother that accused Vrindawan took her sister deceased- prosecutrix(X) away.
(12) Guman (PW4) who is a labourer of village in his deposition stated that he had informed to Chowkidar about dead body of deceased lying in a drain and thereafter, the Chowkidar informed the Police. This witness in para 03 of his cross-examination admitted that safina form Ex.P4 and Naksha Panchanama Ex.P5 were prepared in his presence. 10 (13) Dr. P.K.Jain (PW5) in his evidence deposed that on 26- 03-2010, he conducted postmortem of deceased- prosecutrix (X) and given following opinion:-
''The dead body of a female lying in supine position. Limbs semiplexed. Eyes closed, mouth open and tongue protruding out of mouth. Scalp hair easily removed. Dead body bearing black T- shirt and printed shirt. Skin peeling off. Body swallowed due to decomposition. Wrinkles of skin due to immersion in water. Rigor moritis disappear. Bangles two in number in right hand and four in left hand. Portion of below the ear was absent and eaten by animal. Nails are blue and easily removed. Tip of fingers removed. Swelling on neck. Anal canal protruding out of anal. Laceration present on anterior vaginal side. Stage of decomposition moderate. '' According to this witness, no definite opinion about cause of death may be given. Probably, the death of deceased is 3-4 days from the time of examination. Tibia bone is preserved for postmortem examination.
Dr. PK Jain ( PW5) in his evidence deposed that he had also examined the accused and the appellant accused in his presence admitted commission of rape and has not denied the exact version which is given during his examination by 11 prosecution side. This witness has disclosed the fact that the deceased did not receive any injury on her private part by falling or come into contact of penetrating thing. It is further admitted by this witness that he has not given size of injuries sustained by deceased in his report Ex.P6 and admitted that he did not disclose about size of injuries. This witness further stated that in absence of lady doctor posted at Primary Health Centre, postmortem of the deceased- prosecutrix (X) was conducted by him. In continuation, this witness further stated that while seeking opinion by police on the point of committing rape by accused-appellant, he has disclosed about the history which is recorded in Ex.P7.
(14) Kunwar Singh (PW6) is a labourer of village in para 2 of his examination-in-chief stated that when the deceased
-prosecutrix (X) lost missing on the said day, the villagers saw her roaming with accused. After the incident when she had gone to village, grand-mother of deceased- prosecutrix(X) informed him that accused committed rape with her grand-12
daughter in a drunken condition and threw her in a drain. Khilua brought the accused before him and when he asked to go to the Police Station Kurwai, then the accused denied and thereafter, he made a call to police at Chhola Check-post and got arrested to the accused. The accused admitted before him and Khilua, that he committed murder of the deceased. This witness further in para 6 of his cross-examination deposed that on 16th July, the accused got arrested at Chhola Check-post. He denied that the accused did not admit before him regarding commission of murder of the deceased-prosecutrix(X). This witness also denied that he is making a false statement against the accused.
(15) Kamal (PW7) is a labourer of village in his examination- in-chief deposed that he had seen that on the date of incident accused had taken away deceased (X) and he returned alone at around 07:00 in the evening and on the next day morning, the police had come to village and his statement was also recorded. (16) Gajju (PW8) in his examination-in-chief as well as in 13 para 4 of his cross-examination deposed that on the date of incident, he had seen that accused with deceased-prosecutrix (X) was roaming and he did not know where they had gone thereafter. This witness in para 5 of his cross-examination denied that he is giving a false evidence against the accused at the instance of Kunwar Singh as well as at the instance of police in regard to give a reward if somebody caught hold of the accused.
(17) Halku Ram (PW9) who was posted as Head Constable (Writer) at Police Station Kurwai in para 1 of his evidence deposed that on the information given by Chowkidar Nand Lal of village Nowkund that dead body of an unknown girl is flowing in a drain, on the basis of which merg no.11/2010 under Section 174 of CrPC was recorded vide Ex.P1. Rahim Khan (PW11) who is also a photographer in his evidence deposed that he had gone to the spot to get the dead body of deceased photographed and prepared photographs of deceased vide Ex.P8 to Ex.P10.
14(18) Jeewan Lal (PW11) in his deposition stated that on 29- 03-2010 he was on the post of Sweeper at Community Health Centre, Kurwai and on the said date, the sealed articles were handed over by Hospital for producing same before Police and thereafter, Head Constable had seized the same vide seizure memo Ex.P8. Suresh Kumar Sharma (PW8) who was the Head Constable of Police Station Kurwai supported the same version as given by sweeper Jeewan Lal. Shri Sharma (PW8) in his evidence deposed that the accused was arrested vide arrest memo Ex.P12. Report of seized articles was received from FSL, Sagar vide Ex.P14 and so also report from FSL, Bhopal was also received vide Ex.P17. This witness deposed that the missing report was lodged by Boonda Bai, the grand-mother of deceased (X) which is Ex.P18 and he had also recorded statements of the witnesses.
(19) In view of conspicuous description made above, this Court has no hesitation to hold that the prosecution has successfully proved the guilt of appellant- accused beyond 15 reasonable doubt. The implication of accused is proved by the prosecution witnesses and medical evidence as well. No doubt, the accusation is based on circumstances but the chain of circumstances is complete in all angles as some of villagers of the vicinity had seen the accused-appellant roaming with deceased- prosecutrix (X). Kunwar Singh (PW6), Kamal (PW7) and Gajju (PW8) have specifically in their evidence deposed in their evidence about the ''last seen theory''. On getting information from Bhikam and Guman, the dead body of deceased- prosecutrix was recovered from a drain by the police. It is further proved on record that the accused himself has taken a shelter and revealed before one of the villagers namely Kunwar Singh (PW6) and also Khilua about the commission of murder of deceased. The accused-appellant has also concealed the evidence by hiding the dead body of deceased- prosecutrix in a drain and thereby causing disappearance of evidence punishable under Section 201 of IPC. Therefore, on the basis of evidence as well as law laid down in the matter of Ramreddy 16 Rajeshkhanna Reddy {(2006) 10 SCC 172} placing reliance on the judgment in the case of Anil Kumar Singh vs. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar vs. State of A.P. (2005) 7 SCC 603, the point of ''last seen'' which has governed the field as held by the Hon'ble Apex Court as under:-
"The last seen theory, furthermore, comes into play, where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration. [Held in the case of State of U.P. v. Satish (2005) 3 SCC 1141.]"
(20) The Hon'ble Apex Court in case of Hatti Singh vs. State of Haryana, reported in 2007(2) CCSC 802 (SC), relying on the earlier decision of Ramreddy Rajesh Khanna Reddy vs. State of A.P., reported in {(2006) 10 SCC 172}, has held as under:-
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last-seen alive and the deceased is found 17 dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration."
(21) Similarly, in another decision of State of U.P. v. Satish, reported in {(2005) 3 SCC 114}, again the Hon'ble Apex Court has held as under:-
"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together. It would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws.3 and 5."
(22) It can be safely held that there is no one except appellant who is the author of crime. In the present case at hand, the veracity of witnesses has been tested on the basis of 18 circumstances and marshalling the prosecution evidence keeping in mind the aforesaid circumstances. The entire prosecution story reflects that the present matter is a serious as well as heinous in nature, where the accused- appellant had taken away the deceased prosecutrix (X) who is a minor girl and thereafter committed rape with her and in order to disappear the offence of commission of rape and murder, the appellant- accused had hidden the dead body of the deceased- prosecutrix (X) by throwing it in a drain and the same was recovered by police on getting information by the Chowkidar of the village.
(23) As a consequence thereof, prosecution has successfully proved the appellant guilty and chain of circumstances is also complete pointing out towards the guilt of accused and none else. The trial Court has not committed any error in convicting and sentencing appellant for commission of aforesaid offences. (24) Having regard to the facts and circumstances of crime and considering the relevant facts as the prosecutrix is a minor 19 girl was subjected to rape and murder at the hands of accused- appellant, therefore, the jail sentence awarded by the trial Court is adequate. In the result, appeal fails and is hereby dismissed. (25) Accordingly, the judgment of conviction and sentence dated 8th September, 2011 passed by Second Additional Sessions Judge, Vidisha (MP) in Sessions Trial No 334 of 2010 affirmed.
(26) Since the appellant is in jail, therefore, he be directed to serve out the remaining jail sentence awarded by the Trial Court.
The final outcome of appeal filed by the appellant from jail be communicated to concerning Jail Authorities concerned as well as copy of this judgment along with record be sent to trial Court concerned for necessary information.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
Digitally signed by MAHENDRA BARIK
Date: 2022.07.07 17:19:16 +05'30'