Allahabad High Court
Sanjeev vs State Of U.P. on 10 August, 2017
Bench: Ramesh Sinha, Umesh Chandra Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement Reserved on: 16.05.2017 Judgement Delivered on :10.08.2017 Case :- JAIL APPEAL No. - 204 of 2016 Appellant :- Sanjeev Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Sanjay Kumar Sharma A C Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Umesh Chandra Srivastava,J.
(Delivered by Hon'ble Umesh Chandra Srivastava,J.) This Jail Appeal has been filed against the judgement and order dated 28.06.2013 of Additional Sessions Judge, Court No.-3, J.P. Nagar passed in Sessions Trial No. 188 of 2010 arising out of Case Crime no. 103 of 2010 under sections 364, 302, 201, 376, 511 I.P.C., P.S. Amroha Nagar, District J.P. Nagar by which appellant has been convicted and sentenced to undergo life imprisonment and to pay Rs. 10,000/- as fine for the offence under section 302 I.P.C., rigorous imprisonment of three years and to pay Rs. 10000/- as fine for the offence under section 201 I.P.C., rigorous imprisonment of ten years and to pay Rs. 5000/- as fine for the offence under section 364 I.P.C. and rigorous imprisonment of ten years and to pay Rs. 5000/- as fine for the offence under section 376 I.P.C. and it is also provided that in case of default in payment of fine he shall have to undergo additional imprisonment of six months with another stipulation that all sentences shall run concurrently.
2. In brief, the prosecution case as set out in the F.I.R. is that deceased Sumbul aged 9 years, who was the resident of Mohalla Turk Colony Danishmandan, P.S. Amroha Nagar, District J.P. Nagar along with her younger sister Tahira had gone to Dr. Faizal Road in Mohalla Peergarh, Amroha, J.P. Nagar in the evening of 28.01.2010 at about 7 p.m. to buy a mobile recharge coupon. When she reached to the shop she found that it was closed. A young boy standing near the shop met her and offered her to take her to another shop which she agreed and accompanied him while her younger sister Tahira came back home. When Sumbul did not come back home for more than half an hour, her father Ajeem Ahmad along with other people of the locality went in search of her but she was not traceable. Later her dead body was spotted next day morning at about 10 a.m. in the campus of Government Inter College, Amroha near hostel of the college. Thereafter, father of Sumbul got report of the incident written and went to Police Station Kotwali, District Amroha same day at 10:30 a.m. and submitted the report there which was registered at case crime no. 103 of 2010 under sections 364, 302, 201 I.P.C. against unknown person. The written report of the incident was scribed by one Mushid Hussain. The written report and chick F.I.R. are Ext. A-1 and Ext.A-3.
3. Investigation of the incident was under taken by Inspector Vinod Kumar, the then S.H.O. of P.S. Kotwali Nagar, Amroha, who rushed to the place where dead body of Sumbul was lying and got inquest proceedings of the dead body of the deceased done same day i.e. 29.01.2010. Postmortem on the body of the deceased was also done same day at 4:30 p.m. at District hospital, J.P. Nagar by Dr. Pradeep Agarwal. At the time of postmortem examination both eyes of the deceased were closed, her mouth was open and hyoid bone of neck was broken. Besides above, following Ante-mortem injuries were also found on the person of the deceased.
1. Abraded contusion 7 cm X 4 cm over front of neck with no definite pattern not continuous posteriorly.
2. Abraded contusion over left side of face 1 cm X 1 cm.
3. Abraded contusion over left side of nose.
4. Hymen found ruptured. Vagina admitting finger, no bleeding or injury (contusion or abrasion seen). Swelling of labia is present.
5. Trachea grossly congested with fracture of hyoid bone.
6. Right lung congested, rest NAD
7. Left lung congested, rest NAD
8. Right ventricle full of blood, left NAD.
9. 100 ml of solid chyme present.
10. Gallbladder congested, rest NAD.
11. Spleen congested, rest NAD
12. Kidneys congested, rest NAD As per opinion of Doctor, the cause of death of deceased was asphyxia as a result of strangulation. The postmortem report of the deceased is Ext. Ka-2.
4. The name of appellant came into light during investigation. Thereafter, inspector Vinod Kumar arrested appellant from Gandhi Murti Turn on 02.02.2010 and recorded his statement who confessed the guilt. After investigation, the Investigating Officer submitted chargesheet against the appellant under sections 364, 302, 201, 376, 511 I.P.C. in the court of concerned Magistrate who committed the case to the Court of Sessions. The learned Sessions Judge framed the charges against appellant under sections 363, 302, 201, 376, 511 I.P.C. to which appellant did not plead guilty and claimed to be tried.
5. Prosecution examined 5 witnesses, namely P.W.-1 Ajeem Ahmad, P.W.-2 Tahira, P.W.-3 Dr. Pradeep Agarwal, P.W.-4 C.P. Kiran Pal Singh and P.W.-5 Inspector Vinod Kumar to prove the charges.
6. P.W.-1 Ajeem Ahmad is the father of the deceased and first informant of the case. He has deposed that deceased Sumbul along with her younger sister Tahira had gone to Dr. Faizal Road in the evening of 28.01.2010 at about 7 p.m. for recharging a mobile. He has further stated that the shop to which she had gone was closed and an unknown young boy who was standing near the shop met her there and offered her to take her to another shop for mobile recharging which she agreed and accompanied him while her younger sister Tahira came back home. He has further stated that on being returned home Tahira told him about deceased having gone with an unknown boy for mobile recharging and also that she could identify the boy on his coming before her. He has further stated that when Sumbul did not come back home for more than half an hour, he along with other people of the locality went to market in search of her but she was not traceable. He has further stated that dead body of Sumbul was spotted in the morning of 29.01.2010 at about 10 a.m. in the campus of Government Inter College, Amroha near hostel of the college. He has proved the written report Ext. Ka-1 which he had submitted at P.S. Kotwali Nagar Amroha, same day at 10:30 a.m. after the recovery of dead body of Sumbul. In cross examination, he has stated that Tahira had identified the appellant at P.S. Kotwali Nagar, Amroha, she had not identified him in jail.
7. P.W.-2 Tahira is the younger sister of deceased Sumbul who was only seven years old at the time of incident. She has stated that she along with deceased had gone to a mobile recharging shop at Dr. Faizal road in the evening of 28.01.2010 between 7-8 p.m. but the shop was closed. She has further stated that appellant, whom she has named Vinod, was present near the shop and he offered Sumbul to take her to another shop for mobile recharging which she readily agreed and accompanied him while she came back home. She has further stated that after coming back home she told her father about Sumbul having gone with an unknown boy to another shop for mobile recharging and also that she could identify the boy on his coming before her. She has also stated that when deceased did not come back home her father went in search of her same night but she was not traceable. She has also stated that later dead body of Sumbul was spotted next day morning at about 10:00 a.m. in the campus of Government Inter College, Amroha near hostel of the college. She has also stated that she had identified appellant in the police station among 3 persons.
8. In cross examination she has said that when she along with Sumbul was going to Dr. Faizal road in the evening of 28.01.2010, Sajiya and Sitara met with both of them on the way and thereafter they all four went to the mobile recharging shop. She has also stated that when they all four were going to shop for mobile recharging there was electricity in the lane, but when Sumbul met the unknown boy and the boy offered her to take her to another shop then there was no electricity. She has also stated that appellant had been shown to her at the police station by the Sub-Inspector and that she did not know the boy who offered Sumbul to take her to another shop from before and also that the said boy had met Sumbul near the tea shop of Naresh but she could not see him properly as there was no electricity at that time.
9. P.W.-3 Dr. Pradeep Agarwal had conducted the postmortem examination on the dead body of Sumbul. He has proved the postmortem report i.e. Ext. Ka-2 and also the ante-mortem injuries found on her person at the time of postmortem examination. He has stated that deceased was strangulated to death and probably she was killed on 28.01.2010 at about 7 p.m. and she was sexually assaulted also before being killed.
10. In cross examination he has stated that deceased was done to death any time between 12 to 24 hours before the postmortem examination. He has also stated that ordinarily tongue comes out and eyes get spread when any one is strangulated but these features were not present in the case of deceased. He has also stated that if a 10 years old child is strangulated to death then in a normal course urine and stool would come out while it was not so in the present case. He has also stated that sign of penetration was present on the vagina of the deceased, however, no blood was present on her clothes.
11. P.W.-4 C.P. Kiran Pal Singh has proved the chik F.I.R. Ext. Ka-2 and copy of G.D.
12. P.W.-5 Inspector Vinod Kumar has stated that F.I.R. of the incident in question was lodged in his presence and he had undertaken the investigation of the case. He has also stated that he had recorded the statements of scribe of the chick F.I.R. and scribe of the written report at the police station, Kotwali Nagar Amroha before proceeding to place of occurrence. He has further stated that he had recovered two notes of Rs. 10 denomination and a coin of Rs. 2 along with a coupon and a paper slip containing Sim number of a mobile phone from a Nali along the boundary wall of the Government Inter College Amroha. He has also stated that he had arrested the appellant on 02.02.2010 from Gandhi Murti Turn on the information received from some informer. He has proved chargesheet Ext. Ka-5, site plan Ext. Ka-6 and memo of recovery Ext. Ka-7. He has also proved inquest report Ka- 12 which was prepared by S.I. V.R. Vikram. In cross examination he has said that since witnesses had identified the appellant and appellant himself had confessed the guilt, therefore, he did not think it necessary to put him to test identification parade.
13. The learned Sessions Judge after having heard the arguments of learned counsel of both sides and having considered the evidence brought on record by the prosecution came to conclusion that prosecution has proved the charges against appellant under sections 364, 302, 201, 376 I.P.C. beyond doubt. He accordingly held the appellant guilty for the aforesaid offences and sentenced him to undergo life imprisonment and to pay Rs. 10,000/- as fine for the offence under section 302 I.P.C., three years rigorous imprisonment and to pay Rs. 1000/- fine for the offence under section 201 I.P.C., ten years rigorous imprisonment and to pay Rs. 5000/- as fine for the offence under section 364 I.P.C. and ten years rigorous imprisonment and to pay Rs. 5000/- as fine for the offence under section 376 I.P.C. and also provided that in default of payment of fine appellant will have to undergo six months additional imprisonment by his judgement and order dated 28.06.2013, against which the present appeal has been filed.
14. We have heard Shri Sanjay Kumar Sharma, Advocate learned Amicus Curiae for the appellant, Shri Ashish Pandey, learned AGA for the State and have also perused the materials brought on the record.
15. A short question which arises for considering in the present appeal is whether conviction of appellant could be based on the sole testimony of a child witness who is not even an eyewitness of the incident but only claims to have seen deceased in the company of the appellant before her death.
16. Learned Amicus Curiae has submitted that P.W.-1 Ajeem Ahmad, who is the father of the deceased, is not an eyewitness of the incident. He has further submitted that as per prosecution story and the evidence of P.W.-1 Ajeem Ahmad and P.W.-2 Tahira, dead body of deceased Sumbul was spotted in the morning of 29.01.2010 at about 10 a.m. in the campus of Government Inter College Amroha Nagar near hostel of the college. He has further submitted that P.W.-1 Ajeem Ahmad is also a witness of the fact that when his daughter Km. Tahira came back home in the evening of 28.01.2010 after deceased Sumbul having accompanied an unknown boy to another shop for mobile recharging, she not only told him about deceased having gone with some unknown boy for mobile recharging but she also told him that she could identify the boy Sumbul accompanied on his coming before her. Thus, submission of learned Amicus Curiae is that P.W.-1 Ajeem Ahmad being not a witness of the fact that she had seen deceased having gone with appellant for mobile recharging, nor of the fact that appellant committed rape and murder of Sumbul before him, nor of any other fact relevant for fastening liability upon appellant for the offences in question in any manner, appellant cannot be held guilty for the offences on the basis of evidence of this witness.
17. Regarding testimony of P.W.-2 Km. Tahira, learned Amicus Curiae has submitted that she is also not an eye witness of the incident that appellant committed the incident in question before him. She is only the witness of the fact that when she had gone along with deceased to Dr. Faizal road in the evening of 28.01.2010 at about 7 p.m. for mobile recharging appellant met deceased at the mobile recharging shop which was then closed and he offered her to take her to another mobile shop to which deceased agreed and accompanied him. The learned Amicus Curiae has further submitted that it is proved from the evidence of Km. Tahira that when appellant is said to have met deceased at the mobile shop there was no electricity, and in that situation it was not possible for her, who was only then 7 years old, to identify the appellant by his face as appellant was not known to her from before but she had seen him for the first time when he met the deceased at the mobile recharging shop.
18. Learned Amicus Curiae has further submitted that Km. Tahira who was only 7 years old at the time of incident, had not given any description of appellant such as his features, complexion, length, constitution of body etc., so that she could identify him on his coming before her. His submission is that when the witness had not given any description of the appellant for fixing his identity, it was the duty of the Investigating Officer to hold test identification parade to reach any definite conclusion regarding culpability of the appellant for the offences he was charged. He has submitted that Investigating Officer purposely did not hold any test identification parade to fix identity of the appellant and the reasons he has assigned for not holding test identification parade are not so strong and convincing so that the same may be believed. His submission is that when P.W.-5 Inspector Vinod Kumar was put question why after appellant being arrested was not put to test identification parade to fix his identity he replied that since witnesses had already identified him and appellant had also confessed his guilt, he did not think it necessary to hold test identification parade. He has no where said that he had called Tahira to police station and she had identified the appellant. He has submitted that the reason assigned by the Investigating Officer for not holding test identification parade of the appellant is not convincing at all as he knew that there was no direct evidence and the case was entirely based on the last seen evidence of a child witness. Thus he has submitted that when Investigating Officer deliberately did not hold test identification parade and filed chargesheet against appellant without any cogent and reliable evidence, there was no reason for the learned trial court to hold appellant guilty for the offences of kidnapping, rape and murder.
19. Learned Amicus Curiae has also submitted that though P.W.-2 Km. Tahira identified appellant in Court but in cross examination she has admitted that appellant after being arrested had been shown to her at the police station. The submission of learned Amicus Curiae is that this admission of Km. Tahira that appellant had been shown to her at the police station at the time of his arrest clearly indicates that Investigating Officer had already decided to implicate appellant in the offence and this was the reason that instead of holding test identification parade he called Km Tahira to police station and showed appellant to her so that she could easily raise her finger against him in Court saying he was the person who met Km. Sumbul at the mobile recharging shop and offered her to take her to another shop on the pretext of getting her mobile recharged. He has thus submitted that the act of Investigating Officer not holding test identification parade of appellant who was not named in the F.I.R. and showing appellant to a seven years old child witness at the police station does not only make entire investigation doubt full but it is also indicative of the fact that Investigating Officer being under pressure to work out the case involving kidnapping, rape and murder of a nine year old girl made appellant the victim of the case by falsely implicating him in the offence. He has thus submitted that since in the case in hand basic principles of law of identification were deliberately not followed by the Investigating Officer but he being in hurry to work out the case any how falsely implicated appellant, a poor young boy without any other evidence against him, and in the absence of evidence there could be no culpability of appellant in the offence, it was not desirable for the learned Court below to hold appellant guilty for the offences of kidnapping, rape and murder on the basis of sole evidence of a child evidence who in fact was not a witness of the incident.
20. Per contra, learned AGA has submitted that it is true that appellant is not named in the F.I.R. and this is also true that there is no eye witness account against him, however, Km. Tahira, a child witness, who has no reason to falsely implicate appellant in the offence, has not only identified appellant in court but she has also stated that she had seen deceased in the company of appellant at a mobile recharging shop offering her to take her to another shop for mobile recharging as the shop where deceased had gone was closed and deceased agreeing the offer and accompanying him. His submission is that time gap between the period deceased was seen in the company of appellant and she was killed being not so long, the only inference which could be drawn is that it were none other but the appellant who took deceased with him under the garb of getting her mobile recharged and taking her to a lonely place in the campus of Government Inter College made her victim to his lust and then killed her. Thus, he has submitted that since deceased was lastly seen in the company of appellant and thereafter her dead body was recovered and in between the period she was lastly seen and her dead body was recovered there was no probability of deceased being with others, the only inference which could be drawn is that it were appellant who killed her after committing rape upon her and nobody else.
21. After having heard the submission of learned counsel of both sides and having gone through the evidence of P.W.-2 Km. Tahira and P.W.-5 Inspector Vinod Kumar, we find that there is no eyewitness account of the incident against appellant and the only evidence which has come against appellant is that deceased was lastly seen in his company on 28.01.2010 at about 7 p.m. by P.W.-2 Km. Tahira, her sister. According to evidence of Km. Tahira as given in Court, she along with deceased had gone to Dr. Faizal road in the evening of 28.01.2010 at about 7 p.m. for mobile recharging where appellant met the deceased at a mobile recharging shop and as the said shop was closed, he offered her to take her to another shop for mobile recharging. As per further statements given by P.W.-2 Km Tahira, she had seen appellant for the first time at the mobile shop where she had gone along with deceased for mobile recharging. But, prosecution has failed to bring evidence on record to connect that in fact it were appellant who took deceased with him on the pretext of mobile recharging and done her to death after committing rape upon her. It was the duty of prosecution to bring all connecting evidence on record to demonstrate how the name of appellant came into light, who identified appellant during investigation which made Investigating Officer to reach a definite conclusion that it were appellant who took deceased with him with intention to commit rape upon her and killed her after sexually assaulting her.
22. On reading statement of P.W.-5 Inspector Vinod Kumar it appears that name of appellant came into light in the statements of two witnesses namely Ansar Hussain and Muzahir Hussain who told him that after suspecting appellant to be involved in the offence they had taken Km. Tahira to Batwal turn where appellant was seen coming pulling a rickshaw and after seeing the appellant Tahira immediately identified him and said him to be the same boy who met deceased at the mobile recharging shop and offered her to take her to another shop which deceased agreed and accompanied him. They also told him that after being known that it were appellant who had taken deceased with him they inquired about him and then it revealed that appellant was residing in one of the quarters meant for the employees of the Government Inter College. When the above facts are being claimed to have come to the notice of Investigating Officer through Ansar Hussain and Muzahir Hussain who claimed that Tahira had identified appellant in their presence, it was the duty of the Investigating Officer to hold test identification parade of the appellant to reach any conclusion about the culpability of appellant in the offence. But, the Investigating Officer has miserably failed to do so. The reasons assigned by the Investigating Officer for not holding test identification parade in a case like such where only a child witness claims to have seen deceased in the company of appellant is fatal to prosecution as without such test it is almost impossible to hold appellant guilty for the offences.
23. Prosecution has failed to examine the witnesses who claim that child witness Tahira had identified appellant in their presence. Though it is true that the said witnesses are not the witness of fact that they had seen deceased in the company of appellant. But, since it is claimed that Tahira had identified appellant in their presence, therefore, there evidence was necessary to be brought on the record to connect appellant with the crime. But, prosecution having failed to bring that evidence on record by not examining those witnesses, we find that in the absence of their evidence it is very difficult to base conviction of appellant only on the basis of evidence of child witness P.W.-2 Km. Tahira who even does not claim to have seen appellant committing the incident, but she claims to have seen deceased in the company of appellant in the evening of 28.01.2010 at about 7 p.m. while her dead body was recovered next day morning at 10 a.m. that is after seventeen hours of the alleged last seen.
24. P.W.-2 Km Tahira, who claims to have identified appellant in court has nowhere said in her statements that Ansar Hussain and Muzahir Hussain had taken her to Batwal turn where she had seen appellant pulling a rikshaw and after seeing him she had immediately identified him and had said that it were appellant who had taken Sumbul with him on the pretext of getting her mobile recharged from other shop. What she has said in this regard is that after arrest appellant had been shown to her at the police station. This statement of Km Tahira that before seeing appellant in court appellant had been shown to her at the police station clearly shows that she had not identified appellant at Batwal turn before two witnesses namely, Ansar Hussain and Muzahir Hussain, but appellant after being arrested had been shown to her at the police station by the investigating officer and in that case this witness having correctly identified in court has no meaning nor on the basis of said identification any culpability of appellant in the offence may be proved. It also shows that since Tahira did not know appellant from before and for this reason she could not identify him in court, therefore, appellant had been shown to her at the police station and it was all done in the name of working out a case which involved the rape and murder of a nine year old poor girl. It is also proved from the evidence that there is nothing against appellant to implicate him in the offence in any manner. The child witness Km. Tahira has admitted that when appellant met deceased at the mobile shop in the evening of 28.01.2010 at about 7 p.m. there was no electricity. In the absence of electricity it was not possible for her to record the image of appellant in her eyes and mind as this could only be possible in presence of sufficient light only. The admission made by Tahira in her cross examination that appellant had been shown to her at the police station indicates that it was purposely got done so that there may not be any difficulty to the child witness in identifying him in court. Km Tahira had not given any description of the appellant either to her father or any prosecution witness and in the absence of this it was again not possible for a seven year old child to identify appellant in court after the lapse of a considerably long period as her statement in court was recorded after one and half year of the incident. The conviction recorded against appellant under sections 364, 302, 201, 376, 511 I.P.C. is based on the evidence of Km Tahira only who is not an eyewitness of the incident. When Tahira did not know appellant from before and there was no electricity when appellant met deceased and offered her to take her to another mobile shop for mobile recharging which she agreed and accompanied him and there is no other evidence on record to connect appellant in the crime in any manner, it could be said that in the absence of necessary evidence it was not desirable for the learned trial court to hold appellant guilty for the offences under sections 364, 302, 201, 376, 511 I.P.C.
25. Since we do not find any evidence against appellant to hold him guilty for the offences he has been charged, the impugned judgement and order passed by the court below holding appellant guilty and sentencing him to undergo life imprisonment and to pay Rs. 10000/- fine for the offence under section 302 I.P.C., to under go rigorous imprisonment for three years and to pay Rs. 10000/- fine for the offence under section 201 I.P.C., to undergo rigorous imprisonment for 10 years and to pay Rs. 5000/- fine for the offence under section 364 I.P.C. and to undergo rigorous imprisonemt for ten years and to pay Rs. 5000/- for the offence under section 376 I.P.C. and in default to undergo additional imprisonment of six months cannot be allowed to sustain and the same are therefore set aside and appellant is acquitted under the aforesaid all charges. Jail Superintendent is directed to immediately release appellant from jail if not detained/required in any other case. Appeal stands allowed accordingly.
26. Before parting with we feel it necessary to record that the manner in which investigation in the present case was done by the Investigating Officer Inspector Vinod Kumar was most unfair. He did not hold investigation in the matter in question in proper and right way but he completed the job assigned to him in a very casual manner without realizing that a 9 year old child was not only killed in the incident and she was sexually assaulted also before being killed. Looking to seriousness of the matter, it was the duty of Inspector Vinod Kumar to carry out investigation in a right and fair manner and implicate the person who was really involved after collecting strong and cogent evidence against him which he utterly failed. He did not hold test identification parade of the appellant to fix his identity in the offence because he was inclined to any how solve the case and this was the reason he implicated appellant in the offence without collecting any evidence against him. He did not even consider the gravity of the offence and got appellant charge sheeted knowing well that in absence of any evidence it would not be possible for a court of law to convict him for the offences he was booked. This deliberate act of the Investigating Officer is very serious and not liable to be excused.
27. We therefore, direct Director General of Police to hold inquiry against the erring Police Official if not already retired by a competent Senior Police Officer who shall complete the inquiry in a fixed time frame and suitable action would be taken against the Official on being found guilty. Registrar General is directed to send certified copy of judgement to the concerned Sessions Judge and Director General of Police for necessary compliance.
28. Shri Sanjay Kumar Sharma, Advocate, appointed as Amicus Curiae, would get his fee as per rules for the services rendered to the Court.
(Umesh Chandra Srivastava, J.) (Ramesh Sinha, J.) Order Date :- 10.08.2017 Bhanu