Madhya Pradesh High Court
Kamal And Anr. vs State Of M.P. on 25 April, 2003
Equivalent citations: 2003(4)MPHT406
Author: Deepak Verma
Bench: Deepak Verma
JUDGMENT A.K. Awasthy, J.
1. Appellants/accused have preferred this appeal against judgment dated 20-12-1989 passed by 1st Additional Sessions Judge, Chhindwara in Sessions Trial No. 115 of 1986 against their conviction under Section 302, IPC for life imprisonment, under Section 376, IPC for 7-7 years, and also under Sections 363 and 201 of the IPC for a period of 5-5 years. All the sentences were ordered to run concurrently.
2. The admitted facts of the case are that in the month of April, 1986, a village Mela was held near Village Ramakona in which there was a Zoo known as Chidiyaghar. That the appellants/accused were employed by manager as servants of the Chidiyaghar.
3. The prosecution case is that on unfortunate day of 2-4-1986 at about 5 P.M. in Village Ramakona when deceased Ku. Ruchi alias Rachna aged about 5 years was playing in front of her house with Ku. Archana (P.W. 4) and other girls, then appellant Narayan came there and took Ruchi alias Rachna to his Chidiyaghar. The prosecution has alleged that Chirkutrao (P.W. 6) and Harprasad (P.W. 12) had seen that the deceased was in the company of the appellants in the precinct in the Mela. That the appellants took Ku. Ruchi near the 'Suar Nala' and she was raped by the appellants. That when Ku. Ruchi kept on weeping, the appellants filled sand in her mouth and killed her. That the appellants in order to hide the corpse, threw the body of the deceased in the nearby bushes.
4. The prosecution case is that when Ruchi did not reach the house in the night then Ku. Archana informed maternal uncle Narayan Singh (P.W. 1) that Ku. Ruchi was taken away by the appellant Narayan. Narayan Singh (P.W. 1) made the search of the girl in the village Mela and lodged report (Ex. P-7) in the Police Chowki to A.S.I. Lal Singh (P.W. 11). The prosecution has alleged that Narayan Singh (P.W. 1) and Bhagwan Singh (P.W. 2), father of the deceased, went to the Manager of the village Mela to enquire about the appellants and thereafter announcement in the mike was made in the Mela that the deceased Ruchi is missing and the appellants were directed to immediately report to the Manager. That at about 12 o'clock in the night, the appellants reached there and an inquiry was made from them about the whereabouts of Ku. Ruchi. The prosecution has further alleged that the appellants went to the shopkeeper of the village Bhaurao (P.W. 3) and confessed before him that they had kidnapped Ku. Ruchi and ravished her sexually and she was murdered by them.
5. That on 4-4-1986, search of the dead-body was conducted by the police and the dead-body of Ku. Ruchi was found by the police near Suar Nala. Panchnama (Ex. P-10) of the dead body was prepared by A.S.I. M.P. Mishra (P.W. 13). The corpse was sent for post-mortem to the Primary Health Centre, Saucer and Dr. Parmanand Agrawal (P.W. 10) had conducted the autopsy and found the injuries on the private part and thighs of the deceased. Dr. Parmanand Agrawal (P.W. 10) saw the mouth of the girl filled with sand and her tongue and eyes were protruded and he opined vide his report (Ex. P-4-A) that the cause of death was asphyxia as a result of blockage of respiratory passage. During investigation, S.H.O. J.S. Gaur (P.W. 15) arrested the appellants and the appellants were sent for their medical examination to Dr. Y.W. Silledar (P.W. 7) who had reported that the appellants were capable of performing the sexual intercourse. During the investigation, pants and under-wears of the appellants were seized and the sticks bearing the blood stains were also recovered from the place of incident. After usual investigation, the charge-sheet under Sections 302, 376, 363 and 201 of the IPC was filed against the appellants.
6. The appellants abjured the guilt and they have denied the statements of the prosecution witnesses and pleaded the false implication. The accused persons have not adduced any evidence in their deffence.
7. The learned Additional Sessions Judge has recorded the statements of 15 witnesses and on the basis of the circumstantial evidence found the appellants guilty and convicted and sentenced them as above.
8. The appellants have assailed their conviction alleging that the circumstantial evidence against the appellants was insufficient to hold them guilty beyond reasonable doubt and they deserve to be acquitted.
9. The learned Counsel for the State supported the findings of the learned Additional Sessions Judge and it is alleged that there is overwhelming circumstantial evidence to prove the involvement of the appellants in the offences punishable under Sections 302, 376, 363 and 201 of the IPC.
10. There is no eye-witness to the actual incident and the prosecution has relied on the circumstantial evidence. Firstly, that the appellants took away deceased Ku. Ruchi to a jungle, secondly there was an extra-judicial confession of the appellants of their guilt and lastly that the appellants after the incident on being asked about the whereabouts of the deceased, did not give any explanation and that in their statements under Section 311, Cr.PC they have denied that the deceased was taken by them to the place of incident.
11. Ku. Archana (P.W. 4) has stated that on 2-4-1986 at about 5 P.M. when she was playing with deceased Ruchi, Ranu, Monu and Sapna in front of her house then appellant Narayan caught hold of hand of Ku. Ruchi and told that after sometime he will bring back deceased Ruchi. Ku. Archana has deposed in her statement that when in the night at about 8.30, Ruchi did not return, then she informed her maternal uncle Narayan Singh (P.W. 1) about the incident. In the cross-examination Ku. Archana (P.W. 4) nothing is brought to discredit her statement. Ku. Archana (P.W. 4) is living with her maternal uncle Bhagwan Singh (P.W. 4) who is father of deceased Ruchi. Consequently, it is proved that Ku. Archana (P.W. 4) is a natural witness and there is nothing in her cross-examination to discredit her version.
12. Narayan Singh (P.W. 1) has stated that on 2-4-1986 at about 8.30 P.M. her wife and brother's wife told him that Ruchi is missing and Archana (P.W. 4) was also saying that Ruchi was taken by the persons working in the 'Chidiyaghar'. Narayan Singh (P.W. 1) has further stated that the report was lodged by him at Police Chowki. Narayan Singh (P.W. 1) and Bhagwan Singh (P.W. 2) have stated that they enquired from the Manager of the Mela about whereabouts of the appellants and thereafter the announcement was made in the mike that the appellants should reach there in the office of the Mela. These witnesses have further stated that in the night at about 12.30 both appellants came to the office and there Archana (P.W. 4) told that deceased Ruchi was taken away by the appellants.
13. Bhagwan Singh (P.W. 2) is father of the deceased and Narayan Singh (P.W. 1) is real brother of Bhagwan Singh (P.W. 2). Report (Ex. P-7) was lodged in the night at about 11 P.M. From the perusal of this report, it is clear that suspicion of kidnapping of Ruchi was on the workers of Chidiyaghar. During cross-examination of Narayan Singh (P.W. 1) and Bhagwan Singh (P.W. 2), nothing has come out to doubt the veracity of their statements. Now we will proceed to discuss the evidence of the prosecution produced against the appellants in form of extra-judicial confession.
14. Bhaurao (P.W. 3) has stated that on 5-4-1986 at about 10 P.M. appellants came to his shop and fell down on his feet and said that the deceased was taken away by them to Suar Nala where they had raped and killed her. Bhaurao (P.W. 3) is having grocery shop in the village and the appellants used to purchase the grocery items on credit from him. It has come out in the evidence that Bhaurao (P.W. 3) is an influential man of the village and the appellants went to him for help and to save themselves from the wrath of the villagers.
15. Rimaji (P.W. 5) has stated that on 5-4-1986 at about 9.30 P.M. when he was in the shop of Bhaurao (P.W. 3) then the appellants came there and fell on the feet of Bhaurao (P.W. 3) and they told him that Ruchi was raped and killed by them and the dead body was kept hidden in the bushes near to the Suar Nala.
16. Bhaurao (P.W. 3) and Rimaji (P.W. 5) have no rancour or reason to falsely implicate the appellants. Statements of Bhaurao (P.W. 3) and Rimaji (P.W. 5) are consistent and blameless and hence worthy for reliance. There is nothing to doubt that the confession by the appellants before Bhaurao (P.W. 3) and Rimaji (P.W. 5) was not voluntarily or the appellants were forced to make the extra-judicial confession before them. Consequently, it is proved that the appellants made the extra-judicial confession before Bhaurao (P.W. 3) and Rimaji (P.W. 5) which was natural, voluntary and trustworthy.
17. The prosecution has examined Chirkutrao (P.W. 6) and Harprasad (P.W. 12) to establish the allegation that the appellants were last seen with the deceased just before her murder in the forest. Chirkutrao (P.W. 6) has stated that on 2-4-1986 at about 6.30 P.M. he saw the appellants near the picture hall of village Mela. Chirkutrao (P.W. 6) has deposed that the appellants were seen taking away deceased Ruchi towards Suar Nala. Harprasad (P.W. 12) has testified that the appellants were servants in the Zoo which was in the Mela and many children of the village used to come to see the Zoo (Chidiyaghar). Harprasad (P.W. 12) has deposed that he had seen that the appellant Narayan often used to bring Ku. Ruchi in the Mela and co-accused Kamal used to make Ruchi sat on his lap. Harprasad (P.W. 12) has further deposed that on the fateful night he saw the appellants taking away the deceased towards picture hall and on the same night at 11.30 P.M. there was announcement that the appellants should reach and report in the office of the Mela. Harprasad (P.W. 12) has further stated that father and uncle were making search of deceased Ruchi in the Mela.
18. Chirkutrao (P.W. 6) and Harprasad (P.W. 12) are independent witnesses and there is not an iota of evidence on record to discredit their statements. Consequently, it is clear that statements of Chirkutrao (P.W. 6) and Harprasad (P.W. 12) lend support to the statements of Ku. Archana (P.W. 4), Narayan Singh (P.W. 1) and Bhagwan Singh (P.W. 2). Thus, it is proved beyond reasonable doubt that the appellants were last seen in the night in the company of deceased Ku. Ruchi alias Rachna before she was murdered and raped.
19. In case of Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322 = 1966 Cr.LJ 960, the accused was found guilty on the basis of theory of 'last seen' and the following circumstances were considered sufficient for maintaining the conviction:--
(i) that the deceased was last seen in the company of the accused; (ii) accused making contradictory statements as to where the deceased was; (iii) that the recovery of the dead body was made at the instance of the accused.
20. The appellants in their examination under Section 313, Cr.PC had categorically denied the statements of Ku. Archana (P.W. 4), Chirkutrao (P.W. 6) and Harprasad (P.W. 12) which were regarding the fact that the appellants were seen in the company of the deceased just before the incident. In this connection it is noteworthy that when the appellants had reached in the Mela in the night at about 12.00 after the announcement in the mike was made for them, they had not disclosed the whereabouts of deceased Ruchi to her father Bhagwan Singh (P.W. 2).
21. The appellants took the girl of five years to the forest at about 7.30 P.M. and after four and half hours when appellants had reached in the Mela, the father of the deceased enquired from the appellants about the whereabouts of his missing daughter and the appellants did not disclose to the persons present there that when and there they have left the deceased.
22. The most formidable circumstantial evidence against the accused persons is the aforesaid conduct. The appellants have denied the statements of the prosecution witnesses which were to the effect that the appellants were seen taking away the minor girl from her house to the forest and that after few hours the appellants were questioned by the father of the girl regarding the whereabouts of his daughter Ruchi. This denial of the appellants is false. The Apex Court in case of Anthony D'Souza and Ors. v. State of Karnataka, AIR 2003 SC 258, has observed that by now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under Section 313, Cr.PC against the established facts that can be counted as providing a missing link for completing the chain. In Paragraph 16 of the judgment, the Supreme Court has discussed the previous observations by the Court relating to false answer given by the accused under Section 313, Cr.PC. Paragraph 16 of the judgment runs as follows:--
"16. In Swapan Patra v. State of West Bengal, (1999) 9 SCC 242, this Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers and additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra v. Suresh, (2001) 1 SCC 471, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. This Court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and Ors. v. State of Rajasthan, 2000 (5) JT (SC) 161."
23. Consequently, we hold that the prosecution has, on the basis of the following circumstantial evidence, succeeded to bring home the appellants' guilt beyond reasonable doubt:--
(i) The extra judicial confession by the appellants just one day after the commission of the offence,
(ii) That the appellants were 'last seen' in the company of the girl aged 5 years and she was shortly thereof murdered and raped.
(iii) That there was scant possibility of any other person committing the murder and rape of Ku. Ruchi in between the time when the appellants were seen in the company of the deceased and when the appellants again came back in the night at 12.00.
(iv) That the appellants offered false answer in examination under Section 313, Cr.PC against the established facts appearing in the prosecution evidence against them.
24. From the statement of Dr. Parmanand Agrawal (P.W. 10), it is clear that the death of Ku. Ruchi was homicidal in nature. Marks of injuries on the vulva of the deceased and also on her thighs prove that she was subjected to the sexual intercourse. The age of deceased Ku. Ruchi was about 5 years and the offence of kidnapping from lawful guardianship is also proved against the appellants. The dead body of the deceased was secretly placed in the bushes near Nala which shows that the appellants knowing that the offences of murder and rape have been committed, caused evidence of the commission of these offences to disappear.
25. The act of the appellants of kidnapping a minor girl aged 5 years and subjecting her to sexual intercourse and then committing murder of her is ghastly and gruesome. The appellants deserve no clemency in sentence. The conviction and sentence of the appellants are in accordance with the facts and law applicable to the case. Hence, we hold that there is no force in appeal. The judgment of the learned Trial Court is maintained.
26. The appeal is, therefore, dismissed.