Allahabad High Court
Anil Kumar Goel Son Of Rameshwar Goel And ... vs State Of U.P. on 10 August, 2007
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, Saroj Bala
JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 3.5.2001 passed by 1st Additional Sessions Judge, Ghaziabad, in S.T. No. 909 of 1999 whereby the appellants have been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life, under Section 376 I.P.C. and sentenced to undergo imprisonment for 10 years and a fine of Rs. 5000/- each and in default of payment of fine further imprisonment for six months.
2. The brief facts of the case, according to the first information lodged by the informant Mukesh Jain against the appellants and one Rajan Thakur at P.S. Lone, district Ghaziabad on 3.4.1999 at 5.15 P.M., are that on 3.4.1999 the informant alongwith his wife Satyawati and two sons had gone to take medicine for epilepsy from Janwale Baba, Behta Hajipur. He left his daughter Ritu aged about 13 years and a son aged about 7 years at home. At about 3.30 P.M. when they returned they saw that his daughter Pooja was peeping inside the room and she told them that Anil Jeeja and his two friends arc assaulting Ritu. He, his wife and Virendra Jain also peeped inside the room and saw that Sheeshpal was catching hold of the leg of his daughter and Rajan Thakur was catching hold of her hands and Anil Goel was assaulting her with a knife on her neck. They entered into the room by breaking open the door. The accused persons by brandishing brick, Danda and knife ran away and also threatened them. Anil used to come to his house alongwith Sheeshpal and Rajan Thakur and they were known to them from before. They were also seen running away by the people of the locality and they had tried to apprehend them but they could not do so. He saw that his daughter Ritu was also raped and her dead body was lying inside the room.
3. After the registration of the case S.I. Yaduraj Singh commenced investigation. He prepared the inquest memo, Ext. Ka-5 on the dead body of Ritu Jain and handed over the dead body to Constables Shivnath Singh and Arvind Kumar for carrying it to mortuary for the post-mortem examination. The report to C.M.O., Photolash, sample seal and Challan lash are Exts. Ka. 6 to Ka. 9 respectively. He collected blood smeared and plain earth from the place of occurrence under a recovery memo, which is Ext. Ka. 10. Thereafter, he recorded the statement of the informant and prepared site plan on his pointing out, which is Ext. Ka. 11. He recorded the statements of the inquest witnesses and statements of Km. Pooja and Smt. Satyavati. He also recorded the statement of Vijendra. After the arrest of the accused one blood stained knife was recovered on the pointing out of Anil Goel. A blood stained Chimta was recovered on the pointing out of Sheeshpal and its recovery memo is Ext. Ka. 12. On 10.4.1999 he prepared the site plan of the place of occurrence, which is Ext. Ka. 13. After the conclusion of the investigation he submitted charge sheet against the accused persons, which is Ext. Ka. 4.
4. Dr. Mahendra Kumar Sindhvi conducted the post-mortem examination on 4.4.1999 at 2.00 P.M. and noted following ante-mortem injuries:
1. Incised wound Rt. Side neck middle part Trachea cut muscle vessels cut obliquely place. Clean cut margins size 4 cm x 3 cm x Trachea cavity deep.
2. Incised wound 2 cm x 1 cm on Lt. Side neck middle part '/2 cm deep muscles & vessel nerves cut.
3. Abrasion mark on Lt. Nipple around 3 cm in radius, 6/6 teeth marks present.
4. Abraded contusion on Rt. Nipple area size 5 cm x 4 cm medial side.
5. Multiple linear abrasion with contusion size 3 cm x 0.2 to 0.3 cm on the front of abdomen near umbilicus around.
6. Ruptured hymen with lacerated and contusion mark (1.5 x 1.5 cm.
7. Abraded contusion on both palms of both hands (8) in number, on Left Shoulder (3) in numbers and on neck (3) in number, total 14 in numbers. Depth is skin to muscle deep.
5. In the opinion of the doctor the cause of death was asphyxia & shock due to injuries.
6. Alter submission of the charge sheet the case was committed to the court of Sessions and the Sessions Judge had framed charges under Section 302 and 376 I.P.C. and in order to prove its case the prosecution had examined 6 witnesses. The case of the defence was of denial and false implication. Learned Sessions Judge after considering the evidence on record convicted the appellants and acquitted one accused Rajan Thakur. Hence this appeal.
7. We have heard learned Counsel for the appellants and the learned A.G.A. for the State.
8. The counsel for the appellants has submitted that the allegations of the prosecution are false and no independent witness is supporting the prosecution case. There was no occasion for the witnesses knowing Sheeshpal, who had been named by the witnesses. The Sessions Judge has already acquitted Rajan Thakur against whom similar allegations were made by the witnesses. It is, further submitted that the appellants are falsely implicated in this case because appellant No. 1 Anil Kumar Goel had given a loan to the informant but he could not repay and on demand being made he had been falsely implicated in this case.
9. In order to appreciate the submissions of the counsel for the appellants it is necessary to examine the testimonies of the witnesses.
10. P.W. 1 is Mukesh Kumar Jain who is father of the deceased and has supported the allegations of the first information report. On his dictation the report was prepared by Praveen Kumar Jain. He lodged the report at the police station, which is Ext. Ka. 1. Me deposed that the name of his daughter was Ritu. The incident was of 3.4.1999. At that time he lived in the house of Sita which is situated in Dabur Colony, Sangam Vihar, Loni. His family consists of his wife and 4 children. Ritu was eldest and she was aged about 13 years. The second daughter was Pooja and she was aged about 7 ½ years. On the date of occurrence he had gone to Behra Hajipur for taking the medicine of epilepsy along with his wife and two sons. His two daughters namely Pooja and Ritu remained in the house. His lather had gone to Barhaut. While they returned after taking medicines at 3 p.m. they saw that his daughter was very much disturbed and she was peeping through a hole in the wall and she told them that Anil is assaulting her sister with a knife while Rajan is catching hold of her hand and Sheeshpal is catching hold of her legs. Anil was his distant relative, He and his wife also peeped through that hole and saw that accused were assaulting his daughter. He saw that Anil was assaulting his daughter Ritu with a knife, Rajan was catching hold of her hand and Sheeshpal was catching hold of her legs. The occurrence had taken place inside his house. They broke open the door and tried to apprehend them, Anil brandished his knife and all the three accused fled away by jumping the wall. He scribed the report from Praveen Kumar Jain which is Ext. Ka. 1. After lodging of the first information report the police had come to his house. He had shown the place where his daughter was killed. The dead body was sent for the post-mortem examination. He further deposed that his daughter's Salwar and underwear were removed and blood was oozing out from her private part and neck. His daughter was dead.
11. P.W. 2 Smt. Satyawati deposed that Ritu was his daughter. She was aged about 13 years. She was murdered about one year back. On that date she had gone to Behta alongwith her husband and sons. When she returned she saw that her daughter Pooja was looking inside the room. She was in disturbed condition. She told them that Anil was assaulting her sister Ritu. Rajan was catching hold of her hand and Sheeshpal was catching hold of her legs. She also saw that Anil was assaulting Ritu with a knife. They broke open the door and tried to apprehend the accused but they brandishing the knife fled away. Her daughter sustained injuries of knife on her neck and her clothes were removed. She died on account of injuries sustained by her. Rakcsh, Praveen, Sushil and grandmother of Ritu also reached there.
12. P.W. 3 Pooja was not found competent to give the evidence as such her testimony was not recorded.
13. P.W. 4 is Con. Brajpal Singh. He deposed that he had prepared the first information report, Ext. Ka. 1 and he had also registered the Case Crime No. 176 of 1999 and prepared chik F.I.R. which is Ext. Ka. 2 and G.D. Entry is Ext. Ka. 4.
14. P.W. 5 is Dr. Mahendra Kumar Sindhvi who had conducted the post mortem examination.
15. P.W. 6 is Yaduraj Singh, S.I. who has investigated the case and submitted the chargeshet.
16. The case of the defence was of denial and false implication. It was also suggested that P.W. 1 Mukesh Kumar Jain and P.W. 2 Smt. Satyawati were falsely deposing at the instance of Pardeshi and in support of its case the defence has examined two witnesses.
17. D.W. 1 Geeta Sharma, Advocate, deposed that on 8.1.2001 one Mukesh came in her chamber and she had prepared the affidavit which is Ext. Kha. 1.
18. D.W. 2 Mahesh Chandra Yadav deposed that he was the person who had proved the affidavit of Mukesh.
19. The counsel for the appellant has challenged the presence of the informant on the ground that when occurrence took place lie used to sell flowers near a Devi temple in Loni and his presence in the house at the time of occurrence was highly doubtful. We have examined the testimony of P.W. 1 Mukesh Kumar Jain who had explained his presence. He stated that on the date of occurrence he returned to his«house at about 9 a.m. because he had to go to take medicine for epilepsy from Behta Hazipur. He stated that he reached Behta Hazipur at about 9.40 or 10 a.m. and returned at about 1.30 p.m. He had gone to take medicine alongwith his two children and Smt. Satyawati, his wife. P.W. 2 Smt. Satyawati also corroborated the testimony of P.W. 1 Mukesh Kumar Jain. Both were extensively cross examined but nothing could be elicited to doubt the version of both the witnesses about their being present at the time of occurrence.
20. The next submission of the learned Counsel for the appellants is that Sheeshpal has falsely been implicated in this case because he was a tenant of Rajan. It was pointed out that P.W. 1 Mukesh Kumar Jain had admitted that he had wrongly mentioned in the first information report that Rajan and Sheeshpal used to come to his house and they were known to him. We do not find any substance in this submission because P.W. 1 is a rustic and illiterate villager. He stated that Sheeshpal was a tenant in the house of Rajan. P.W. 2 Smt. Satyawati also stated that she knew Sheeshpal from before. He used to come alongwith Anil to the house of her sister-in-law who was her neighbour. They have no doubt about the identity of Sheeshpal. The witnesses have consistently stated about the involvement of Sheeshpal. The testimony of the witnesses inspires full confidence.
21. The next submission of the counsel for the appellant is that they are falsely implicated in this case on the ground that P.W. 1 Mukesh Kunar Jain had taken a loan of Rs. 23000/- from Anil Goel and he used to demand his money, therefore, he had falsely implicated him in this case.
22. We do not find any force in this submission that only on this ground any one will falsely implicate any person in such a heinous crime. The main endeavour of the close relative of the deceased would be to punish the guilty instead of falsely implicated innocent persons.
23. The counsel for the appellants further submitted that the case of Rajan Thakur was similar to that of appellants and on the basis of same evidence he had been acquitted by the trial court, therefore, the testimony of the witnesses against the appellants should also be rejected. We do not agree with this submission because as a rule of universal application, it cannot be said that when a portion of the prosecution witness is discarded as unworthy of credence, there cannot be any conviction. It is always open to a court to differentiate the accused who had been acquitted from those who had been convicted.
24. We have carefully examined the testimonies and documents on record and we are of the opinion that Sessions Judge has wrongly acquitted Rajan Thakur. The Sessions Judge relied upon the testimonies of D.W. 1 Geeta Sharma, Advocate, D.W. 2 Mahesh Chandra Yadav, Advocate who had stated that P.W. 1 Mukesh Kumar Jain had filed an affidavit in court which Ext. Kha. 1. The Sessions Judge had also mentioned that P.W. 1 Mukesh Kumar Jain stated that Rajan Thakur was not earlier known to him and P.W. 2 Smt. Satyawati stated that he was known to her. The Sessions Judge has doubted the involvement of Rajan Thakur because he never came to her house. An affidavit was filed by P.W. 1 Mukesh Kumar Jain in favour of Rajan Thakur which is Ext. m 28 which was also proved by Smt. Geeta Sharma that Mukesh Jain had also filed an affidavit in which he stated that affidavit was got filed after giving him liquor. The Sessions Judge has held that Rajan Thakur was not earlier known therefore the identification was necessary by the witnesses. Mukesh Jain had also stated that he disclosed the name of Rajan Thakur only because the person who were collected there had disclosed the name of these persons and Rajan Thakur was given benefit of doubt. The Sessions Judge has wrongly considered the affidavit which was filed by P.W. Mukesh Jain. His evidence was concluded on 17.7.2000 and thereafter an application for recalling P.W. 1 was moved and he was recalled. One affidavit Ext. w 28 was alleged to be filed by P.W. 1 Mukesh Kumar Jain dated 8.1.2000 in which he stated that he had named Rajan Thakur on the asking by the police. The Sessions Judge has wrongly considered the affidavit filed by P.W. 1 because Section 145 of the Evidence Act provides as under:
145. Cross-examination as to previous statements in writing. - A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
25. The affidavit, which was subsequently filed, was not a previous statement of the witness therefore, he cannot be cross examined on that aspect. The reasoning of acquittal of Rajan Thakur by the Sessions Judge is wrong but the State has not questioned the correctness of the conclusion arrived at by the trial judge. The acquittal of Rajan Thakur docs not in any manner affect the credibility of the witnesses. Even if witness has been disbelieved with respect to Rajan Thakur his entire evidence cannot be disbelieved. It is a settled principle of law that it is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material brought on record would not ruin it from the beginning to end.
26. The evidence on record shows that the occurrence took place at 3.30 P.M. and report was lodged at 5.15 P.M. and there is no inordinate delay in lodging the first information report. The informant must be in shock and he also stated that he suffered from epilepsy also. The circumstance is that the deceased was raped and she has been assaulted by knife. The post mortem on the dead body of Km. Ritu was conducted by Dr. M.K. Sindhvi and he noted several injuries. He also found hymen ruptured. In the opinion of the doctor the cause of death was asphyxia and shock due to injuries. The case of the prosecution is that one person was catching hold of the hands and one person was catching hold of the legs of the deceased. Most of the injuries arc on the upper part of the body. Injury on the neck was incised one which could be caused by knife. The doctor had also noted abraded contusions on both palms of both hands which are 14 in number which clearly supports eye witness account of catching hold of the hands. Scientific Laboratory Report indicates that on the underwear of the deceased, semen was found. During the investigation one blood stained knife was recovered on the pointing of Anil Goel and one Chimta was also recovered on the pointing out of Sheesh Pal and the report shows that human blood was found on knife and Chimta. The allegation of rape also finds corroboration by the Scientific Laboratory Report. Both P.W. 1 and P.W. 2 were extensively cross-examined and they had explained their presence and there is nothing to doubt about their testimony that they were not present at the alleged time of occurrence. The presence of P.W. 2 Smt. Satyawati was quite natural as the place of occurrence was inside her house. Both the witnesses have very truthfully described the prosecution case and the Sessions Judge has rightly relied upon their testimonies and recorded the findings of conviction against the appellants and we also concur with the same.
27. In view of the above, the appeal is dismissed. The conviction and sentences awarded by the trial court to the appellants are affirmed. The appellants are in jail. They shall be kept out there to serve their sentence it awarded by the trial court and affirmed by us.
28. Office is directed to communicate this order to the trial court concerned within two weeks from today.