Chattisgarh High Court
Shekshpear vs State Of Chhattisgarh on 17 February, 2010
Author: T.P. Sharma
Bench: T.P. Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
CR. A. No. 836 of 2002
1. Shekshpear
2. Harsh Sanjeev Tirki
...Petitioners
VERSUS
State of Chhattisgarh
...Respondents
APPEAL U/S 374(2) OF THE CODE OF CRIMINAL PROCEDURE.
! Shri Ramakant Pandey, Advocate for the appellants
^ Shri Rakesh Kumar Jha, Additional Public Prosecutor For the State/respondent
HONBLE MR. T.P. SHARMA, HONBLE MR. R.L. JHANWAR, JJ.
Dated:17/02/2010
: Judgment
JUDGEMENT
(Passed on 17/02/2010) The following judgment of the Court was passed by T.P. Sharma, J:-
1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 12/6/02 passed by Second Additional Sessions Judge (F.T.C.) Jashpur Nagar in Sessions Trial No. 52/2002 whereby and where under after holding the appellants guilty for the commission of kidnapping, abducting, concealing the prosecutrix and commission of rape and murder of deceased Ku. Seema Kujoor in sharing common intention convicted the appellants under Sections 363/34, 366/34, 376/34, 346/34 & 302/34 of the Indian Penal Code and sentenced rigorous imprisonment for 3 years and fine of Rs. 500/- in default of payment of fine amount additional simple imprisonment for 15 days, rigorous imprisonment for 3 years and fine of Rs. 500/- in default of payment of fine amount additional simple imprisonment for 15 days, rigorous imprisonment for 7 years and fine of Rs. 1,000/- in default of payment of fine amount additional rigorous imprisonment for 1 month, rigorous imprisonment for 6 years & rigorous imprisonment for life and fine of Rs.
5,000/- in default of payment of fine amount additional simple imprisonment for 5 months.
2. Conviction is impugned on the ground that without any credible and clinching evidence sufficient for conviction of the appellants court below has convicted and sentenced the appellants and thereby committed an illegality.
3. Case of the prosecution in brief is that Ku. Seema Kujoor aged about 15 years i.e. below the age of 16 years was residing with his father Johnkrush Kujoor under his guardianship on fateful day of 9/12/2001 between 5-6 p.m. the appellants kidnapped and abducted the prosecutrix from the house of her father and took her in the house of Maseehdas Kujoor where they committed rape with her and after commission of rape they committed her murder by throttling. PW1 Budheshwar Ram lodged the First Information Report vide Ex. P-1. Marg was recorded vide Ex. P-20. After summoning the witnesses vide Ex. P-21, inquest over the dead body of the deceased was prepared vide Ex. P-3. Dead body was sent for autopsy to Government Hospital, Jashpur vide Ex. P-14. Autopsy was conducted by PW13 Dr. Smt. Kumud Kerketta vide Ex. P-15 and found following symptoms:- Face swollen up and cyanosed lips and nails cyanosed, mouth was open, eyes were closed, eye ball was prominent, Blisters present on the forehead, neck and upper part of chest and shoulder region, Tongue bitten between upper and lower jaw of teeth and protruded out blood mixed frothy was found in the mouth and nostrils. Hymen was torn and absent remnants of hymen and introits swollen up and radiant colour bruises present in the forchete. Vagina admit in one finger tightly, nail scratches present in both thighs. Haemotoma present over right thigh, faecal was present on out of anus. Two slides of vaginal smear were prepared, sealed and handed over for chemical examination. Breast was undeveloped, auxiliary hair absent and public hair were scanty. Cause of death was cardiogenic shock due to rape and obstruction of air passages. Death was homicidal in nature.
4. Spot map was prepared vide Ex. P-2. On 14/12/01 appellant Shekshpear was sent for medical examination vide Ex. P-4. He was examined by PW9 Dr. Lalit Ekka vide Ex. P-5 and found that appellant Shekshpear was capable for intercourse his undergarments stained like sperm was also examined by PW9 Dr. Lalit Ekka vide Ex. P-7. Another appellant Harsh Sanjeev Tirki was also examined vide Ex. P-8. He was examined by PW9 Dr. Lalit Ekka vide Ex. P-9 and was found capable for intercourse, his undergarments stained like sperm also examined vide Ex. P-9. During course of investigation one pair of Lakhani Slipper, one hair band, one handkerchief stained with blood, one sock, one hair clip, one underwear stained with sperm and blood, broken piece of bangle seized from the spot vide Ex. P-12. Documents relating to the date of birth of the prosecutrix Ex. P-26 was seized vide Ex. P-13. Slides were seized from the constable vide Ex. P-16. Slides relating to the appellant Shekshpear was seized vide Ex. P-17. Underwear of appellant Harsh Sanjeev Tirki was seized vide Ex. P-18. Underwear of appellant Shekshpear was seized vide Ex. P-19. Appellants were arrested on 14/12/01 vide Exs. P-23 & P-24. Seized articles were sent for chemical examination vide Ex. P-25.
5. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short `the Code'). After completion of the investigation charge sheet was filed before the Chief Judicial Magistrate Jashpur who in turn committed the case to the Court of Sessions, Raigarh. Learned Second Additional Sessions Judge has received the case on transfer for trial.
6. In order to prove the guilt of the appellants/accused prosecution examined as well as 17 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication is claimed.
7. After affording an opportunity of hearing to the parties learned Second Additional Sessions Judge convicted and sentenced the appellants aforementioned.
8. Learned counsel for the parties are heard. Judgment impugned and record of Court below perused.
9. Learned counsel for the appellants vehemently argued that the conviction of the appellants are based on the evidence of PW2 Prabha Toppo, PW3 child witness Jharna, PW4 child witness Pesekila, PW5 Selas Toppo & PW10 Anugrahit Toppo but they have not seen the incident the conviction is based on surmises, conjuncture and assumption that appellant might have committed the offence only on the basis of grave suspicion the conviction of the appellants are not sustainable under the law.
10. On the other hand, learned counsel for the State/respondent opposed the appeal and submits that appellants have committed rape and murder after kidnapping and abducting of the prosecutrix and prosecution has proved its case beyond all shadow of doubts.
11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution.
12. In the present case death of the prosecutrix Ku.
Seema Kujoor is not disputed. PW13 Dr. Smt. Kumud Kerketta who had examined the dead body has deposed in her evidence the facts mentioned in Para-3 and on the basis of symptoms she has opined that death was as a result of cardiogenic shock due to rape and obstruction of air passages and death was homicidal in nature. In her detail cross examination she has denied the suggestions that swelling of abdomen was as a result of asphyxia or abrasion found over the thigh after the death.
13. The conviction is based on the evidence of PW2 Prabha Toppo, PW3 child witness Jharna, PW4 child witness Pesekila, PW5 Selas Toppo & PW10 Anugrahit Toppo. PW2 Prabha Toppo has deposed in her evidence that on the date of incident she had gone for fetching the water while she was coming back to her house, she saw that house of Maseehdas Kujoor which was closed was opened by the appellant Shekshpear . He came out but she did not knew that appellant has committed what act with Ku. Seema Kujoor inside the house. Jharna and Stuti told her that appellant Shekshpear has taken Ku. Seema Kujoor inside the house of Maseehdas Kujoor then she went to the house of the Maseehdas Kujoor with her husband PW5 Selas Toppo with light where Seema Kujoor was unconscious, her husband took her from the house of Maseehdas Kujoor to her house. She has also deposed that when she went inside the house of the Maseehdas where she saw slipper of Seema, sock, hair band, handkerchief. Again, they went to the house of Maseehdas at that time house of the Maseehdas was closed and nothing was seen inside the room.
14. PW3 Jharna a child witness aged about 9 years whom the Court below has examined after satisfying that she know the duty to speak the truth and is able to understand the question has deposed in her evidence that she along with Stuti, Amelia & Alok while they were playing near the house of the Nirali appellant Shekshpear caught hold Ku. Seema and took her inside the house of Selas and closed the door then she told the incident to PW5 Selas Toppo and his wife (PW2 Prabha Toppo). She has also deposed that she has seen the Sanju who was running from the alleged house afterwards Seema died.
15. PW4 Pesekila a child witness aged about 15 years has deposed in her evidence that while she went to the courtyard for taking woods she saw that appellant Shekshpear was closing the door. In her cross examination prosecution has declared hostile. She has admitted in Para-2 of her cross examination that appellant Shekshpear took the Seema inside the house of Maseehdas, again in her cross examination by the defence she has deposed that her house was situated near the house of the Maseehdas. She has also admitted in para-6 of her cross examination that so many rooms in the house of Maseehdas and persons were residing in different rooms. She has also deposed that Stuti & Jharna has also seen the appellant Shekshpear while he was taking the deceased. She further deposed that appellant Shekshpear has dragged the Seema but the Seema was not making resistance.
16. PW5 Selas Toppo husband of the PW2 Prabha Toppo has deposed in his evidence that on the date of incident he had gone to play hockey when he came back after play the hockey then Stuti & Jharna told him that appellant Shekshpear has taken Seema inside the house then he went in the room beside his residence with light where he saw the dead body of Seema then he took Seema and reached the house of Seema. Again he came back and he found that door was closed from inside then he went inside from the roof and opened the door but he did not find her slipper, sock, hair band, which was previously present lying in the room.
17. PW10 Anugrahit Toppo has deposed in her evidence that she along with her daughter-in-law PW2 Prabha Toppo while her daughter-in-law after fetching the water, she saw appellant Shekshpear who was holding the hand of deceased Seema. Appellant Sanju was also sitting near the door then she went inside her room thereafter she heard that appellant Shekshpear has killed the Seema.
18. The defence has cross examined PW2 Prabha Toopo at length she has admitted in para-5 of her evidence that 5 outer doors were present in the house of Maseehdas consisting of 5 blocks. Anugrahit Toppo & Shantiprakash were also residing adjacent to the house of Maseehdas. She has also admitted in Para-6 of her cross examination that some days prior to the incident Seema along with appellant Shekshpear were sitting in the house of Anugrahit. She has also admitted that house of Selas Toppo is also adjoining to the house of Maseehdas and distance was only one or two steps. She has denied the suggestion that she is tutored witness.
19. Defence has also cross examined her husband PW5 Selas Toppo who has also admitted the fact that house of Anugrahit, Maseehdas, Jharna & Suvardan are adjoining to his house. In Para-5 of his evidence he has admitted that after opining the door which was closed from out side he went inside the room where Seema was lying at that time his wife was also present. He has denied the suggestion that with a view to implicate falsely the appellant Shekshpear, at the instance of Johnkrush he is deposing false evidence.
20. Defence has also cross examined PW3 Jharna a child witness has deposed in Para-3 of her cross examination that she has admitted the suggestion that she had come to Court with the father of the deceased Seema and he has advised her to tell that appellant Shekshpear caught hold the hands of Seema and took her. She has admitted that she was present near the fire with Shradha, Nandi, Seema & Buddhu.
21. Defence has also cross examined PW4 Pesekila in which she had stuck in her version that appellant Shekshpear took the Seema to the house of Anugrahit. She has denied all adverse suggestions but she had admitted the suggestion in para-6 of his cross examination that Jharna, Stuti and other also seen appellant Shekshpear and Seema while Shekshpear was taking Seema. She has voluntarily stated that appellant Shekshpear has dragged Seema but Seema has not made any resistance.
22. Evidence of these witnesses reveals that there were 5-6 mini blocks where different persons were residing, all are adjoining to each other. Appellant Shekshpear took Seema inside the room of Maseehdas and at that time he was holding the hand of Seema but she was not making any resistance. Appellant Shekshpear took the Seema inside the room and at that time appellant Sanju was also present in the room after some time appellant Shekshpear came out from the room. PW2 Prabha Toppo and her husband PW5 Selas Toppo immediately went to that room which was closed from out side, they were having light after opining the room they went inside where dead body of Seema was lying along with her other articles like slipper, sock, hair band then PW5 Selas Toppo took the dead body of deceased Seema to her father's house. The autopsy report reveal that death of the deceased Seema was unnatural and examination of her private part is a suggestive of the fact that intercourse has been committed with her.
23. PW16 G.N. Baghel has deposed in Para-7 of his evidence that he has seized the birth certificate of Seema vide Ex. P-13. PW12 Gulab Ram supported the seizure of birth certificate in para-2 of his evidence. PW17 Pilvan Ram has deposed that according to the record of Police Station of 1987 the date of birth of Seema was 10/5/1987 and birth has been registered on 12/5/1987 vide registration No. 422/87.
24. The evidence of PW17 Pilvan Ram, PW16 G.N. Baghel & PW12 Gulab Ram reveal that birth certificate registered on 12/5/1987 which reveal that date of birth of Seema is 10/5/1987 and on the date of commission of the offence i.e. 9/12/2001 her age was more than 14 years and below 15 years. The age of the prosecutrix is also corroborated by the evidence of PW13 Dr. Smt. Kumud Kerketta according to her statement in Para-4 and autopsy report P-15 that breast of the deceased was undeveloped, auxiliary hairs were absent and public hairs were scanty. These facts are also suggestive of the fact that her age was between 13 - 15 years.
25. On the basis of evidence of PW17 Pilvan Ram, Ex. P-
26 birth certificate, Ex. P-15 autopsy report and evidence of PW2 Prabha Toppo, PW3 Jharna, PW4 Pesekila, PW5 Selas Toppo & PW10 Anugrahit Toppo, it is also clear that at the time of taking prosecutrix Seema by appellant Shekshpear she was below the age of 15 years. Admittedly when the appellant Shekshpear took Seema inside the room at that time she was alive and when appellant came out from the room alone then other persons went to the room she was found dead. Her autopsy report and evidence of PW13 Dr. Smt. Kumud Kerketta shows that she has been subjected to intercourse. The offence has been committed in secrecy and was within the knowledge of both the appellants who were present inside the room and near the door of the room in accordance to under Section 106 of the Evidence Act. Appellants were under obligation to offer explanation that who has committed intercourse with her and how she died but appellants have not offered any explanation.
26. While dealing with the offence of rape and murder in secrecy in case of Dhananjoy Chatterjee alias Dhana v. State of W.B.1 in which Apex Court has held that in case of plea of alibi the plea must be proved by cogent and satisfactory evidence completely excluding the possibility of accused's presence at the scene of occurrence at the relevant time. In the aforesaid case one Guard entered into the room of victim and committed rape and murder inside the room and fled away, witness has deposed against the appellant that appellant had entered into the room of the victim and thereafter her raped dead body was found, in absence of any cogent explanation the conviction of the appellant for the offence of rape, murder, theft and sentenced of capital penalty was upheld.
27. While dealing with the offence committed in secrecy and requirement of explanation in case of Trimukh Maroti Kirkan v. State of Maharashtra2, in case murder committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. Para 15 of the said judgment reads as under:-
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
28. In the present case Seema whose age was between 14- 15 years was found dead after rape inside the room where appellant Shekshpear was present and appellant Sanju was also sitting in front of the door of room. Both the appellants had not offered any explanation that who has committed the rape and how the prosecutrix died. In absence of any explanation and on the basis of evidence of PW2 Prabha Toppo, PW3 child witness Jharna, PW4 child witness Pesekila, PW5 Selas Toppo & PW10 Anugrahit Toppo only inference would be possible that appellant Shekshpear has kidnapped and abducted Ku. Seema from the guardianship of her father in sharing common intention with appellant Sanju has committed the rape and murder of Seema and had confined her in secret place. These circumstances proved against the appellants or incapable of explanation of any other hypothesis then that of the guilt of the accused and or inconsistent with their innocency.
29. After appreciating the evidence available on record learned Second Additional Sessions Judge has convicted the appellants under Sections 363/34, 366/34, 376/34, 346/34 & 302/34 of the Indian Penal Code. In absence of any evidence against the appellant Harsh Sanjeev Tirki relating to kidnapping and abducting his conviction and sentence under Sections 363/34 & 366/34 of the Indian Penal Code are not sustainable under the law.
30. In the present case evidence adduced on behalf of the prosecution is sufficient for drawing an inference that appellant Shekshpear committed the offence of murder in sharing common intention with appellant Harsh Sanjeev Tirki and virtually both the appellants has committed gang rape.
31. On close scrutiny of the evidence available on record we are of the considered view that the appellant Shekshpear has committed the offence punishable under Sections 363/34, 366/34, 376/34 (virtually of gang rape), 346/34 & 302/34 of the Indian Penal Code and appellant Harsh Sanjeev Tirki has committed the offence punishable under Sections 376/34 (virtually of gang rape), 302/34 & 346/34 of the Indian Penal Code. Consequently, the criminal appeal is partly allowed. Conviction and sentence of appellants Shekshpear and Harsh Sanjeev Tirki under Sections 376/34 & 346/34 of the Indian Penal Code is hereby maintained. Conviction of the appellant Shekshpear under Sections 363/34, 366/34 & 302/34 of the Indian Penal Code are altered into under Sections 363, 366 & 302 of the Indian Penal Code and sentenced Rigorous Imprisonment for 3 years and fine of Rs. 500/- in default of payment of fine amount additional simple imprisonment for 15 days, rigorous imprisonment for 3 years and fine of Rs. 500/- in default of payment of fine amount additional simple imprisonment for 15 days, imprisonment for life and fine of Rs. 5,000/- in default of payment of fine amount additional simple imprisonment for 5 months. Appellant Harsh Sanjeev Tirki is acquitted of the charges of under Sections 363/34 & 366/34 of the Indian Penal Code and his conviction and sentence under Section 302/34 of the Indian Penal Code is hereby maintained.
JUDGE