Madhya Pradesh High Court
Dhillan @ Rajkumar Kori vs State Of M.P. on 1 November, 2017
Bench: Sheel Nagu, Ashok Kumar Joshi
1 CRA.364/2004
HIGH COURT OF MADHYA PRADESHBENCH AT GWALIOR
DIVISION BENCH
Hon'ble Shri Justice Sheel Nagu.
&
Hon'ble Shri Justice Ashok Kumar Joshi.
Criminal Appeal No.364/2004
Dhillan alias Rajkumar S/o
Baijnath Kori, aged 21 years,
R/o Haripura Meet Market Road
Dabra, District Gwalior Appellant
Versus
State of M.P. through Police
Station Dabra, District Gwalior Respondent
................................................................................................
For appellant:- Shri Pawan Vijayvargiya,
learned counsel.
For respondent/State:- Shri B. B. Sharma, learned
Public Prosecutor.
.................................................................................
JUDGMENT
( /11/2017) Per Ashok Kumar Joshi, J. -
This criminal appeal under Section 374 of Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 25.02.2004 passed by the Second Additional Sessions Judge, Dabra District Gwalior in sessions trial No.161/2003, whereby appellant has been convicted under Section 302 of the IPC and sentenced to life imprisonment with fine of Rs.5,000/- and also convicted under Section 376 of the IPC and sentenced to undergo 10 years RI with a fine of Rs.1,000/-. In default of fine, appellant has been 2 CRA.364/2004 directed to undergo 3 years RI in relation to fine imposed under Section 302 of IPC and to undergo additional 1 year RI in relation to fine imposed under Section 376 of IPC.
(2) Prosecution's case, in brief, is that on the date of incident, i.e., 11.03.2003 complainant Rasheed Khan (PW-6) intimated at police Station Dabra at 11:00 PM that in the evening of that day at about 7:00 PM, his seven years old minor daughter (deceased) had gone from his house with daughter of Hari Kori, but his daughter had not returned back till that time, thereafter, his daughter was searched, but was found missing. Complainant Rasheed Khan's intimation was recorded at sanha No.682 of the rojnamcha (Ex.P-5) at Police Station. On next day i.e. 12.03.2003 at about 7:30 AM a marg report (Ex.P-6) was recorded on the basis of intimation given by Rasheed Khan that her daughter Chandni was not found in the night despite search but on next date about 7:00 AM his neighbours intimated him that the dead body of his daughter is lying near the temple of Goddess Kali. Thereafter, J.V.S. Chauhan, SHO Dabra (PW-16) on 12.03.2003 at 08:00 AM reached in the lane situated behind the temple of Goddess Kali and intimated panch-witnesses to remain present vide safina form (Ex.P-8) and in the presence of complainant and other panch-witnesses after inspecting the dead body, prepared the inquest memo (Ex.P-9) and the underwear of the deceased was lying at about 20 feet away from the dead body. A mark of abrasion was present with redness on her left 3 CRA.364/2004 cheek. The private parts of the deceased were seen by her mother Husna and it was found that there was bleeding from her private part and frock of the deceased was stained with the blood and swelling was found over the neck of the deceased. In the marg inquiry, the above mentioned underwear of the girl was sealed and seized by the seizure memo (Ex. P-13) and spot map (Ex.P-7) of the place was prepared, wherefrom the dead body was recovered. In the inquest memo (Ex.P-9), it was recorded that during the marg enquiry, it was found and in the opinion of the panch-witnesses, in last evening after 7 AM, deceased was taken by the appellant behind the lane of temple of Goddess Kali and was raped, thereafter, was murdered by throttling her neck. The dead body of the deceased was sent for postmortem.
(3) Dr. Urmila Mathur (PW-5) with companion doctors started postmortem of the deceased at 10:00 AM on 12.03.2003 and found that rigor mortise was present and tongue of the deceased was pressed between her teeth and mouth, hands, legs and both knees were entangled with the soil and frock was also entangled with soil and lower part of the body was stained with the blood and so many signs of abrasion were present over the neck and lower abdominal, private part, both thighs and upper part of the legs were having blood and in the opinion of the doctors conducting postmortem report, all injuries were antemortem and the inner surfaces of private parts and vagina's outer part were injured and passage of the 4 CRA.364/2004 vagina was ruptured up to the anus. Private parts including the urinary tube were deeply lacerated and blood was present in the inner and outer side of the vaginal passage and in the opinion of doctors, all these injuries could be caused by forcefully rape. Two slides of the vaginal smear of the deceased were prepared and green colored frock found on the dead body was sealed by the doctors. The reason of the death was asphyxia including the forceful rape within 24 hours from starting of postmortem and its report (Ex.P-4) was recorded.
(4) FIR (Ex.P-21) was registered by the Investigator J.V.S. Chauhan at 12:30 PM on
12.03.2003 against the appellant on the basis of missing person report and marg inquiry. Appellant was arrested on 12.03.2003 at 14:45 PM vide arrest memo (Ex.P-14) and at the time of his arrest, there were marks of abrasion over his both knees and elbows. Appellant was sent for his medical examination and was examined on 13.03.2003 at Dabra hospital by Dr. S.K. Gupta (PW-12), who found abrasions over both knees and both elbows of the appellant appearing to be caused within 48 hours and his private part was also examined and smegma was not found present in the penis and he was found capable for committing intercourse and appellant's medical report (Ex.P-17) was recorded. His semen slides, pubic hairs, worn underwear and vest were also sealed in a packet by the examining Dr.S.K.Gupta and sent to the relating police station. During the investigation with an 5 CRA.364/2004 application dated 30.04.2003 all sealed material were sent to FSL Gwalior.
(5) According to the received report of FSL, Gwalior (Ex.P-19), on the deceased's frock, slide, swab and on appellant's underwear and appellant's slide, clots of semen and human sperms was found and on deceased's frock, slide and swab and on vest of the appellant blood was found and for determining the source and nature of the blood materials were sent to FSL, Sagar.
(6) According to the report of the FSL Sagar (Ex. P-22) human blood of group "O" was found on frock of the deceased and vest of the appellant. After completing the formalities of the investigation, charge- sheet was filed before the CJM, Dabra, who committed the arisen case to the Sessions Judge, Gwalior, who transferred the sessions trial to Second Additional Judge, Dabra.
(7) Appellant denied the framed charges under Sections 376 and 302 of IPC. Before the trial Court, Anil Vishwakarma (PW-1), Najim Khan (PW-2), Jahur Beg (PW-3), Babulal (PW-4), Dr. Urmila Mathur (PW-5), Rasheed Khan (PW-6), Smt. Husna (PW-7), Ramswaroop (PW-8), Kamta Prasad (PW-9), Rajendra Singh (PW-10), Ramji Saran (PW-11), Dr. S.K.Gupta (PW-12), Ram Prakash (PW-13), Chandra Pal Singh (PW-14), R.V.S. Bhadoriya (PW-15), J.V.S. Chauhan (PW-16) and Dr. Raj Saini (PW-17) were examined. It was the defence by the appellant that he has been 6 CRA.364/2004 falsely implicated. Defence witnesses Devilal (DW-1) and Vinod Kumar Jha (DW-2) were examined to establish the good behavior of the appellant. The trial Court relying on the evidence of the prosecution witnesses, convicted appellant for charged offences and sentenced him as aforesaid, hence, this appeal.
(8) Learned counsel for the appellant vehemently contended that there is no any eyewitness of the incident and both of the alleged prosecution witnesses regarding having seen deceased girl lastly with the appellant Anil Vishwakarma (PW-1) and Babu Lal (PW-4) had not supported prosecution and these witnesses were declared hostile. Deceased's father Rasheed Khan (PW-6) and brother Najim Khan (PW-2) have deposed that they had seen the appellant coming from the lane in the night at 11 PM in puzzled state, but this important fact is not mentioned in the FIR and according to FSL report, human blood of "O" blood group was found on vest of the appellant and frock of the deceased girl, but there is no evidence that deceased's or appellant's blood group is "O" and the doctor who sealed the vest of the appellant, did not take appellant's signature on any paper, hence the factum of seizure of appellant's vest is not reliable and the chain of circumstantial evidence was not complete, but the learned lower Court erred in convicting and sentencing the appellant, hence, it is prayed that appeal be allowed and appellant be acquitted.
(9) On the other hand, learned Public Prosecutor contended that learned trial Court has properly and 7 CRA.364/2004 legally appreciated the evidence available on record and prays for dismissal of appellant's appeal.
(10) Dr. Urmila Mathur (PW-5) deposed that on 12.03.2003 in the morning at 9:30 AM she started the postmortem of seven years old deceased girl with Dr. V.P. Mathur and Dr. S.C. Gupta, wherein it was found that tongue of the deceased was pressed between teeth and rigor mortise was present. Deceased face, head, forearms, hand, feet and both knees were coated with mud and her frock was also soiled with mud and the lower part of the dead body was badly soiled with blood and multiple abrasions were present over left side of her neck and abrasions were also present at the level of thyroid and four small abrasions were present on right side of the neck, three abrasions were present on left side of the cheek and contusion on left side of neck of size 4cmx2cm was present. Deceased lower abdominal perineum, both thighs were badly soiled with blood and all the injuries were antemortem in nature.
(11) In postmortem, it was found that the private part of the deceased, the hole of the vagina was badly lacerated and lacerated wound in perineum was present. This lacerated wound of vagina was extended up to the urethra and bleeding was present in vagina and perineum, thighs were also stained with the blood and the injuries of the private parts of the deceased were caused by hard and blunt object and were appearing result of forceful intercourse. Dr. Urmila Mathur (PW-5) also deposed that only a green colored 8 CRA.364/2004 frock was found on the dead body which was soiled with blood and mud which was packed and sealed and no any underwear was found on the body. Two slides of vaginal fluid and one slide of vaginal swab were prepared and vaginal swab was also packed and sealed, and after postmortem, the same were sent to the relating police station through a sainik. In the opinion of the doctors conducting the postmortem, the deceased has died due to asphyxia caused by throttling resulted into respiratory arrest and injuries on perineum and vaginal area were appearing as a result of forceful intercourse and deceased had died within 24 hours from starting of the postmortem. Dr. Urmila Mathur proved her signature on the postmortem report (Ex.P-4).
(12) According to FSL Gwalior's report (Ex. P-19), on deceased frock, semen and human sperms were found and in prepared slides of vaginal smear and sealed vaginal swab, semen and human sperms were found, hence, it was proved that the deceased was raped before causing her murder. Hence, it was proved from medical and other evidence available on record that deceased was raped and her death was homicidal in nature.
(13) The mother of the deceased Husna (PW-7) deposed that on the date of incident, her daughter had gone for eating food in the reception of marriage ceremony and her husband Rasheed Khan (PW-6) had returned to their house at 7:00 PM in the evening, but when her daughter did not return to house, then she 9 CRA.364/2004 went to search her, then near generator and tent Anil Vishwakarma (PW-1) met her and he intimated her that he had seen her daughter with Dhillon alias Rajkumar, thereafter, her husband (PW-6) and son Najim Khan (PW-2) went for searching deceased girl. Her husband Rasheed Khan (PW-6) had totally corroborated the evidence of his wife and deposed that when he with his son Najim Khan (PW-2) had gone to search for his girl, Anil Vishwakarma (PW-1) standing near generator informed that he had seen his girl with the appellant at 9:00 PM, thereafter, he gave missing person intimation at police station. His intimation recorded in rojnamcha (Ex.P-5) is signed by him but in this rojnamcha report (Ex.P-5), recorded at 11:00 PM, this fact is not mentioned that Anil had intimated the complainant Rasheed Khan and his son Najim Khan that he had seen his daughter with appellant at 9:00 PM.
(14) Anil (PW-1) did not depose above mentioned fact in his deposition given before the Court and he was declared hostile by prosecution and questions of the nature of cross-examination were asked to him by the prosecution. Complainant's son Najim Khan (PW-2) also not deposed this fact that Anil had disclosed the above mentioned fact in his presence and Najim Khan (PW-2) was also declared hostile by the prosecution. The learned counsel for the appellant argued that as this fact is missing in rojnamcha report (Ex.P-5) lodged by the father of the deceased at 11:00 PM and Anil (PW-1) and Najim Khan (PW-2) have not supported 10 CRA.364/2004 complainant's evidence on this point and the other alleged witness of last seen of the deceased with appellant, Babulal (PW-4) has also not deposed this fact and he was also declared hostile, hence, it is argued that the alleged most important circumstance of last seen of deceased with appellant was not proved.
(15) It is true that Anil (PW-1) and Babulal (PW-
4), both hostile declared prosecution witnesses had not deposed that they have seen deceased girl on last occasion alive with the appellant in night, but some important facts had come in deposition of Anil (PW-1).
(16) Anil (PW-1) deposed that on the date of incident, i.e., 11.03.2003 at about 09:30-10:00 PM, when he was standing near generator (place near to his house), there somebody told to a person named Dhillon that he had won Rs.6,500/-, thereafter, Bejuram went to brought father and mother of the deceased girl and Bejuram told to the father and mother of deceased i.e. Rasheed Khan and his wife (Husna) that their son was stating that he has won Rs.6,500/-, then the parents of the deceased girl told that their son would be advised by them and, thereafter, parents of the deceased girl went to their house and on the date of incident, there was a marriage at the house of Rakesh Kori and he had seen the deceased girl in the tent of marriage ceremony at about 9:30 in the night and at about 10:45 PM of the same night Dhillon (appellant) removed all the children from the tent and, thereafter, table and chairs were arranged in the tent and he took food with his children 11 CRA.364/2004 in the tent and, thereafter, he went to his house and slept in the night.
(17) After declaring hostile witnesses Anil (PW-1) and Babulal (PW-4) denied the suggestions relating to facts, which they had stated in their relating police statements to the effect that each of them had seen the deceased girl being taken by the appellant after catching her hand and going towards the temple of Goddess Kali. Each of them denied that in the next morning in the same lane of temple of Goddess Kali, deceased's dead body was found, which was seen by them, but Babulal (PW-4) deposed that on the date of incident there was marriage of his nephew.
(18) It is significant to mention here that appellant's father's name is Baijnath. Hostile declared Anil (PW-1) clearly deposed that before the incident appellant's father had brought father of the deceased Rasheed Khan and his wife and complained that their son Najim Khan was spreading the rumour that he has won Rs.6,500/- and, thereafter, father and mother of the deceased stated that they would advised their son. Hostile declared Najim Khan deposed in his cross- examination that on the date of incident in the night at about 09:30 PM, when he was going to his work place, then in the way appellant had met him, who after seeing him started abusing to him and muslims, then he went back to his house and intimated his parents and, thereafter, went to his work and in next morning the dead body of his sister was lying near the temple of Goddess Kali.
12 CRA.364/2004(19) After declaring Nazim (PW-2) hostile, he admitted the suggestion given by the prosecutor that he had stated in his police statement (Ex.P-2) that in the night during the search of his sister, he had seen the puzzled appellant coming from the lane of the above mentioned temple. Rasheed Khan (PW-6) also deposed that after lodging rojnamcha report (Ex. P-5) at police station Dabra, when he and his son Najim Khan were returning from police station then both of them have seen puzzled appellant coming from the lane of above-mentioned temple, but at that time, he did not give much attention to this fact and when in next morning it was brought to his knowledge that his daughter's dead body is lying near the above- mentioned temple then he lodged marg report (Ex. P-
6) at Police Station Dabra. Much stress has been given by the counsel for the appellant that the fact of seeing, coming of puzzled appellant at about 11:00 PM from the lane of temple is missing in marg report (Ex. P-6) lodged by father of the deceased.
(20) It is true that the above-mentioned fact is missing in rojnamcha report which was lodged at 07:30 AM on 12.03.2003, but it is significant to mention here that according to the evidence of Sub- Inspector J.V.S. Chauhan (PW-16) after lodging of the marg intimation, he reached on spot of the incident and prepared spot map (Ex. P-6) and issued safina form (Ex. P-8) and in presence of panch-witnesses recorded inquest memo (Ex.P-9) and at that time, the dead body of the deceased girl lying behind the temple 13 CRA.364/2004 of Kali and her underwear was lying away at a distance of 20 feet from the dead body and blood was oozing from the private parts of the deceased and her frock was also stained with the blood and he sent the dead body for postmortem alongwith his signed application (Ex. P-20). Sub-Inspector J.V.S. Chauhan (PW-16) has clearly deposed in his cross-examination (para-4) that in the morning of 12.03.2003 from 08:00 AM to 10:00 PM he had recorded the statements of Rasheed Khan (PW-6), Husna (PW-7), Najim Khan (PW-2), Anil (PW-
1), Babulal (PW-4) and Jahoor Beg (PW-3) during marg enquiry and in marg enquiry he found that appellant had murdered and raped the deceased, hence, he himself lodged FIR (Ex. P-21) against the appellant at 12:30 PM and on the same date, he arrested the appellant vide arrest memo (P-14).
(21) It is clearly mentioned in the inquest memo (Ex. P-9) signed by Rasheed Khan and Najim Khan and three other panch-witnesses that it has come in the marg enquiry and in the opinion of the panch- witnesses that on the previous day i.e. 11.03.2003 after 07:00 PM appellant took the deceased girl in the lane of above-mentioned temple and committed rape and, thereafter, by throttling her neck, he murdered her. The inquest memo (Ex. P-9) was prepared before the registration of FIR by the same investigator. In inquest memo, the hand written time 07:00 PM on 12.03.2003 is recorded as time of death of the deceased. Hence, it is clear from the deposition of Sub- Inspector J.V.S.Chauhan that on recording statements 14 CRA.364/2004 by him under marg enquiry it has come to his knowledge that appellant had raped and murdered the deceased girl.
(22) It is significant to mention here that the police statements recorded by T.I. R.V.S. Bhadoriya (PW-15) after registration of the FIR were produced with the charge-sheet before the Court. It is also clear that during the cross-examination of Sub-Inspector J.V.S. Chauhan (PW-16), no attempt was made on behalf of the appellant for bringing the statements recorded by him during the marg enquiry on record, hence, the recording of facts that deceased girl was raped and murdered by the appellant in the inquest memo (Ex.P-9) in which marg enquiry is also indicated. Hence, the above-mentioned facts deposed by Rasheed Khan (PW-6) and Najim Khan (PW-2) got corroboration from this inquest memo (Ex.P-9) and by deposition of J.V.S.Chauhan (PW-16).
(23) The mother of the deceased Husna (PW-7) had clearly deposed that the appellant is a neighbour of them, who resides in a nearby house and hostile declared prosecution witness Anil & Babulal were also neighbours. It is common tendency that generally the neighbours try not to depose anything against their neighbours, otherwise their relation would be strained. But hostile declared Anil has clearly deposed that appellant was present in the tent of the relating marriage, where some children were also present and there a dispute had occurred relating to rumour allegedly spread by Najim Khan that appellant had won 15 CRA.364/2004 or lost sufficient money in gambling and in relation to this rumour, the parents of the deceased girl were called by the father of the appellant. Najim Khan has also deposed that at the same time, appellant was abusing him. In these proved facts and circumstance, it could not be said that there is no evidence against the appellant to connect him with the incident.
(24) Turning of some prosecution witnesses hostile, is not a uncommon or abnormal phenomena and almost in every criminal case, some of the prosecution witnesses and even in some cases, victims and complainants turns hostile. It is clear that deceased and appellant were resident of same mohalla and hostile declared prosecution witnesses are also resident of same locality. It is well settled that such portions of the hostile declared prosecution witnesses could be relied on, which got support from the evidence of other witnesses.
(25) It is clear from the total deposition of hostile declared Jahoor Beg (PW-3) that in cross-examination (para-3) he deposed that in the night of the incident he had talked with Rajkumar (appellant) and Kallan and at that time they were not in drunken state and in cross- examination he deposed that Kallan was running and and on his asking Kallan had not told him all facts and in cross-examination he deposed that he was well acquainted with Kallan, but he did not know any person named Dhillan, but in cross-examination (para-
3) he had clearly deposed that in night two persons named Rajkumar and Kallan had met him. According to 16 CRA.364/2004 the prosecution's case, appellant Rajkumar's other name is Dhillan. After declaring Jahoor Beg hostile, he clearly admitted on suggestions of the Additional Public Prosecutor that on the date of incident, in the night Rajkumar and Kallan have met him near the temple and at that time Kallan was puzzled and on his asking, Kallan had stated that in drunken state he had raped a girl and that girl had died in the night.
(26) In last two lines of the para-2, Jahoor Beg (PW-3) clearly deposed that in night Kallan had met him, but he clearly deposed that the accused, present in the Court room at the time of recording of his deposition had disclosed these facts to him and he did not know the name of the present accused in the Court room, whereas in cross-examination he had clearly stated the name of Rajkumar, which is appellant's another name. It is clear from the total deposition of Jahoor Beg (PW-3) that he tried to deviate from his previous statement, but he clearly admitted that the present accused in the Court room at the time of recording of his evidence had told him that in drunken state he had raped the girl and the girl had died in the night. In all these facts and circumstances, it is clear that it was only the appellant who had made extrajudicial confession regarding rape with the girl and, thereafter, death of the girl before Jahoor Beg (PW-3). Looking to the total deposition of Jahoor Beg (PW-3), the argument of appellant's counsel could not be accepted that his statement is not helpful to the prosecution.
17 CRA.364/2004(27) Much emphasis has been given by the appellant's counsel on the fact that Dr. S. K. Gupta (PW-12) who after appellant's physical and sexual examination sealed his underwear and vest (baniyan) and prepared sealed slides of semen of appellant and his pubic hairs did not take appellant's signature on any paper regarding seizure of appellant's above- mentioned clothes. Generally, doctors who examined the victims or accused persons, do not prepare any seizure memo and did not take signatures of the examined person on their medical report, but only due to this alleged lacuna, the evidence Dr. S.K. Gupta could not be doubted because he is an independent witness and public officer and police constable Ram Prakash (PW-13) had clearly deposed that on 13.03.2003 at police station Dabra in his presence hospital employee Ramswaroop (PW-8) had brought Rajkumar's clothes in a sealed packet and other material which were seized by Head Constable - Rajendra Singh (PW-10) vide seizure memo (Ex.P-12) in his presence and seizure memo is having his signatures of above mentioned witnesses also. Head Constable-Rajendra Singh Chauhan (PW-10) and Ramswaroop (PW-8) have also proved above- mentioned facts and making of seizure memo (Ex.P-
12) by Rajendra Singh.
(28) Hospital employee Ramswaroop (PW-8) has deposed that on 12.03.2003, on his producing a sealed packet from Dabra hospital, seizure memo (PW-11) regarding seizure of the sealed packets of frock of 18 CRA.364/2004 deceased and her sealed vaginal smears slides and vaginal swab was prepared at police station Dabra and seizure memo (Ex.P-11) is having his signature. Police Constable Ram Prakash (PW-13) and Head Constable Chandrapal Singh (PW-14), who prepared the seizure memo (Ex.P-11) have also proved these facts and also proved other signatures on seizure memo (Ex. P-11).
(29) Dr. Raj Saini (PW-17) and his report (Ex.P-
22) established that on 14.10.2003 in FSL Sagar, where he was working as senior scientific officer had examined the relating materials and on seized vest of the appellant and on frock of the deceased girl human blood of blood group "O" was found on each of above mentioned articles. According to Regional FSL Gwalior's report (Ex.P-19) spots of semen and human sperm were found on frock of the deceased girl, slides of the vaginal smears of the deceased and vaginal swab of the deceased and on underwear and semen slide of the appellant and blood was found on the frock of the deceased, vaginal semen slide and vaginal swab of the deceased and on vest of the appellant and for determining the source of the blood and its blood group, relating articles were sent for further analysis to FSL Sagar.
(30) Placing reliance on the case of Sukhjit Singh Vs. State of Punjab (2014) 10 SCC 270, it has been argued by appellant's counsel that incriminating facts relating to seized materials were not brought to appellant under Section 313 of Criminal Procedure Code, but it is clear from the questionnaire prepared 19 CRA.364/2004 by the trial Court for examination of the appellant that separate and specific questions such as question No.68, 69, 70, 71 and 72 were asked to the appellant on 16.02.2004 under his additional examination as accused, but appellant has not offered any explanation regarding presence of human blood of "O" blood-group on his seized vest (baniyan) and frock of the deceased girl. Hence, in such different aspect of the relating case, above mentioned citation does not provide any help to the appellant.
(31) Learned counsel for the appellant gave much emphasis on the fact that there is no evidence in this case that deceased was having "O" blood group and there is no evidence regarding human blood group of the appellant. Hence, he vehemently argued that the above-mentioned FSL reports are not helpful to the prosecution and the trial Court had erred in placing reliance on it to connect appellant with the incident. This argument is devoid of substance. It is well established that when human blood of any particular group is found on accused's clothes, then the accused is duty bound to explain reason for it. It is true that there is no evidence on record that on the point that the deceased or appellant was having "O" blood group, but the presence of blood of same human blood group "O" on frock of the deceased girl sealed by the lady doctor, who conducted her postmortem and on the vest of the appellant sealed by another male doctor, who medically and sexually examined the appellant, clearly establishes the connection of appellant with the 20 CRA.364/2004 incident and charged offences and in our considered opinion the learned trial Court had not committed any error in placing the reliance on this important circumstance connecting the appellant with the rape and murder of the deceased girl.
(32) Much emphasis has been given by the counsel of the appellant that according to evidence of police constable Ramji Saran (PW-11), the copy of the FIR (Ex.P-21) was delivered by him in the Court of JMFC, Dabra on 13.03.2003 and argued placing reliance on some citations that the prompt compliance of Section 157 of Cr.P.C. is not proved in this case by the prosecution and, hence, the FIR and prosecution's case is doubtful. In this case according to arrest memo (Ex. P-14) of the appellant proved by Sub-Inspector (investigator) J.V.S.Chauhan (PW-16) appellant was arrested on 12.03.2003 at 14:45 hours (02:45 PM), whereas FIR (Ex. P-21) recorded on the same date i.e. 12.03.2003 at 12:30 PM and according to the evidence of other police officials, in marg enquiry, the name of the accused had appeared as culprit of the incident. It is well established that only on the basis of the late receiving of the copy of the FIR by the relating Court, otherwise a prompt investigation and reliable prosecution case could not be discarded only on this ground.
(33) We are of the considered opinion that the trial Court has properly and legally appreciated the evidence available on record and in this case, the chain of circumstantial evidence was complete and all these 21 CRA.364/2004 proved circumstances had proved beyond any reasonable doubt that it was only the appellant who committed the charged offences. It is clear that appellant's appeal is not having any substance.
(34) Consequently, the appeal filed by the appellant under Section 374 of Cr.P.C. is dismissed and the above-mentioned conviction and sentence of the appellant as recorded by the above-mentioned trial Court are affirmed. The result of this appeal be intimated to the appellant through the concerned Jail Superintendent. With a copy of this judgment, the record of the trial Court be immediately sent back.
Ashish* (Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
/11/2017 /11/2017