Chandrapal vs State of U.P.

Mukteshwar Prasad, J.—Chandrapal, son of Horam Giri, a condemned prisoner; has come up in appeal to this Court against the judgment and order dated 29.01.2007 passed by Smt. Neerja Singh, Additional Sessions Judge (F.T.Court No.17), Bulandshahar whereby appellant was found guilty under sections 302 and 376(2)(f) of the Penal Code and was sentenced to death and to undergo imprisonment for life respectively thereunder. He was sentenced to pay a fine of Rs. 10,000/- also u/s 376 IPC. In default, he was directed to suffer imprisonment for a period of two years.

In brief, the prosecution case is as under:-

PW1 Rajendra, son of Ram Charan Giri, the informant and the appellant are residents of village Ladana, P.S. Khanpur, Bulandshahar. The appellant is cousin of the informant. On 26.03.2005 at about 7.00 P.M., the informant''s son disclosed to him that his sister Km.A (name withheld by us) aged about five years, was missing. Rajendra accompanied by his son(Ankit) searched Km. A in the village and made enquiries about her from several persons. Ultimately, his brother PW2 Yogendra and Raju son of Mainu disclosed that the appellant took her towards his Gher and they saw her in his company. The informant accompanied by his brother Yogendra, Rakesh, son of Laxmi Narain Sharma and other villagers arrived at the Gher of Chandrapal searching Km.A. He was seen coming out of Gher and the informant and others made enquiry from him. They took a search of the Gher and found blood and Chappals of Km.A inside the Chhapper. They further found Km.A lying in unconscious condition in the heap of leaves outside the Chhapper and saw bleeding from her private parts. When Chandrapal was questioned about it, he tried to run away. Looking to the condition of the Girl, the villagers were agitated and they apprehended the appellant and assaulted him. Chandrapal confessed his guilt and prayed for clemency. The informant, his son Ankit and brother Yogendra arranged a Jeep and took Km.A as well as Chandrapal to District Hospital for treatment. The doctor declared Km. A dead in the hospital and Chandrapal was admitted there. It was further alleged that Chandrapal had committed rape on a minor girl and thereafter killed her.

The informant got a report of the incident prepared by his co-villager Sushil Sharma and lodged FIR.

PW4 H.C. Satyapal Singh prepared chick report and registered a case at Crime No.27 u/s 376/302 I PC on 27.03.2005 at 2.30 A.M. and made entry in the G.D. at serial No.4.

RW5 S.I. Mohar Singh reached mortuary and prepared inquest report and other papers relevant for post-mortem examination. He sealed the dead body and prepared a sample of seal. Ho handed over the dead body to two constables Ranjeet Singh and Rais Haider.

PW3 Dr. Dinesh Kumar was posted as Medical Officer at the District Hospital on 27.03.2005. He conducted autopsy on 27.03.2005 at 2.45 P.M. According to him, the girl was about five years old and had expired 3/4th day prior to the examination. The rigor mortis was present all over the body.

Dr. Kumar found the following ante-mortem injuries on bodv:-

(1) Abrasion size 2.0 cm. x 1.0 cm. on right side face, 1.0 cm. below from right eye.

(2) Multiple abraded contusion on front & both sides of neck of size 2.5 cm. x 1.0 cm. to 3.0 cm. x 2.0 cm.

(3) An abrasion size 1.0 cm. x 0.5 cm. on right side inner aspect of upper lip just away form midline.

Both eyes were closed. Vagina was bleeding. On internal examination, membranes and brain were congested. On exploration, subcutaneous tissues and muscles were ecchymosed. Both cornua of hyoid bone were fractured. Both lungs, larynx and trachea were congested. Dr. Kumar further found bleeding from vagina. Hymen was lacerated. He prepared two vaginal smear slides for pathological examination to ascertain the presence of spermatozoa. He sent the same to Senior Pathologist Babu Banarasi Das Government Hospital, Bulandshahar through constable. In the opinion of the doctor, the death was caused due to asphyxia resulting from throttling. The doctor handed over a sealed bundle of clothes containing Kachha and Frock of the girl to the constable who had brought the dead body.

The investigation of the case was taken up by PW7 S.I. Sansar Singh Rathi, the then S.O. of P.S. Khanpur. After interrogating the informant he reached the place of occurrence and at the pointing out of informant, prepared site-plan. He collected blood stained and plain earth and Chappal of the deceased and prepared Fard and sealed the articles on the spot. He interrogated S.I. Mohar Singh, constables Rais Haider and Ranjeet Singh on 28.03.2005. After receipt of the post-mortem examination report, he interrogated Yogendra on 04.04.2005. On 07.04.2005, Chandrapal was arrested by the Police and was interrogated. The Police took underwear of the accused in custody and prepared Fard. The underwear was sealed. The I.O. interrogated other witnesses also and after completing investigation, submitted charge-sheet under sections 376/302 I.P.C.

After committal of the case to the Court of Session, Chandrapal was charged under sections 302 and 376(2)(f) of the Penal Code on 04.10.2005. He pleaded not guilty to the charges and claimed to be tried.

During the trial, the prosecution examined seven witnesses in all to prove the circumstances against the appellant as undisputedly there was no direct evidence to show his complicity with the crime. PW1 Rajendra is the informant and father of the girl and PW2 Yogendra, brother of the informant, who were allegedly searching Km.A after his disappearance from the house on the impugned day and ultimately recovered her dead body from the Gher of the appellant and found blood and Chappal of Km. A lying there, PW3 Dr. Dinesh Kumar conducted autopsy on the dead body of Km. A on 27.03.2005 and proved post-mortem report, PW4 H.C. Satyapal Singh proved chick report and copy of the General Diary, PW5 S.I. Mohar Singh proved inquest report and other papers, PW6 Constable Rais Haider accompanied by Constable Ranjeet Singh took the sealed dead body of Km. A to mortuary and got the post-mortem done and PW7 Sansar Singh Rathi is Investigating Officer and proved site-plan, charge sheet. Fard, blood stained earth and Fard underwear of the accused. The prosecution filed report of the Chemical Examiner also which was marked as Exhibit Ka-13.

Accused-Chandrapal in his statement recorded u/s 313 Cr.P.C. pleaded his false implication in the case on account of enmity. The defence version is that on the impugned day at about 8.30 P.M. was present at his plot. Both brothers (Rajendra and Yogendra) arrived there and without any reason they assaulted him mercilessly. He sustained several injuries. When they realized their mistake that death of Chandrapal might be caused, they got him admitted in the hospital and lodged a false FIR. He examined DW1 Divendra Kumar, Chief Pharmacist of the District Hospital, who disclosed that on 27.03.2005 at 0.35 P.M., the appellant was admitted in the emergency and was examined by Dr. Rajiv Rastogi.

After having scrutinized the oral and documentary evidence on record led by the parties and considering the arguments also advanced by the learned Counsel for the parties, the learned Trial Judge found the accused guilty of both the charges and convicted and sentenced him as indicated above. Hence this appeal.

A reference has also been made by the learned Judge as required u/s 366 Cr.P.C. for confirmation of death sentence.

We have heard S/Sri S.P.S. Rathore and S.K. Badhotiya learned Counsel for sole appellant and Sri R.C. Sharma, learned Additional Government Advocate at length. We have gone through the entire oral and documentary evidence on record led by the parties carefully.

Learned Counsel for the appellant has assailed the impugned judgment mainly on the grounds that the appellant was falsely implicated on the ground of suspicion and there was no direct evidence to hold the appellant guilty for committing the offences, as alleged by the prosecution. The entire case of the prosecution rests on circumstantial evidence and all the circumstances were not established. According to appellant''s learned Counsel, the appellant was assaulted mercilessly by the informant and his brother on 26.03.2005 and he sustained number of injuries. He was taken to the hospital and was admitted there. However, the Police did not arrest him and his arrest was shown on 7.04.2005. The Police claimed to have recovered the Nekar of the appellant after his arrest but no public witness was associated with this recovery. No independent witness of the locality came forward to support the prosecution version and Chappal of the deceased which was recovered by the I.O. from the spot was not produced in the Court. According to FIR, one Raju, son of Mainu, had also seen the appellant taking away the girl to his Gher. He was, however, not produced in the witness box and the appellant is entitled to acquittal.

Learned Counsel for the appellant has placed reliance on the decisions of the Supreme Court of India in Kanhai Mishra @ Kanhaiya Misar v. State of Bihar, 2001(1) ACJ 350 (S.C.): 2001(42) ACC 696 Subhash Chand v. State of Rajasthan, 2001(2) ACJ 590 (S.C.): 2001(43) ACC 1054 (SC), Bantu Alias Saresh Giri v. State of M.P., 2001(2) ACJ 659 (S.C.): 2002(44) ACC 114 (SC) Kumudi Lal v. State of U.P., 1999(2) ACJ 39 (S.C.): 1999(38) ACC 773 (SC) and Machhi Singh v. State of Punjab, 1983(20) ACC 321 (SC).

On the other hand, learned A.G.A. has fully supported the impugned judgment and has submitted with vehemence that a minor girl aged about five years only was ravished, raped and done to death by strangulation by a close relative and as such, the Trial Court rightly convicted the appellant and sentenced him to death. It was submitted that testimony of two brothers, who are father and uncle of the deceased, and report of the Chemical Examiner fully supported the prosecution version and corroborated the testimony of informant and others and the Trial Judge rightly concluded that it was the appellant and none else who committed the ghastly crime of rape and murdered a girl of tender age.

We have given our anxious consideration to the entire submissions made on behalf of the parties. Undoubtedly, no direct evidence was led by the prosecution to the effect that the appellant was seen by someone while he was committing rape on the girl and killed her by strangulation. The case as put up before Trial Judge hinges on circumstantial evidence. The Apex Court of the country has given a large number of decisions on circumstantial evidence and has laid down clear guidelines in this regard. Now it is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person''s conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the whole endeavour and effort of the Court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. This proposition of law rendered by a Bench of three Judges was reiterated in Subhash Chand v. State of Rajasthan (supra). It may be mentioned here that in Subhash Chand''s case, the Supreme Court relied upon its landmark judgment rendered in S.B. Sarda v. State of Maharashtra, 1984 SCC (Cri.) 487 and Dhananjoy Chatterjee v. State of W.B., 2004(2) CCC 720 (S.C.): 2004(1) ACJ 699 (S.C.) (SC).

Now we shall scrutinize and scan the evidence led by the prosecution in the light of aforesaid principles to find out the complicity of the appellant in the crime. As noted above, the prosecution led evidence to show that on the basis of the information furnished by PW2 Yogendra, his brother Rajendra, nephew and other villagers who were searching the girl rushed to the Gher of the appellant, found him standing there and saw blood stained earth as well as Chappal. They further recovered the girl also who was lying in unconscious condition in the heap of leaves. Both PW1 Rajendra and PW2 Yogendra disclosed in unambiguous words that on the impugned day Km. A was missing from her house. When Rajendra was searching her, his brother Yogendra and Raju disclosed that they had seen the appellant taking away Km.A towards his Gher. They furnished this information to the informant at about 7.00 P.M. Thereafter, both the brothers accompanied by others rushed there and found the appellant there in his Gher. On enquiry, Chandrapal avoided to answer their questions. When the witnesses entered into the Chhapper, they found blood stained earth and Chappal. The villagers assaulted him and made further enquiry and on the basis of his disclosure, Km. A was recovered in unconscious condition from the heap of leaves and her vagina was bleeding. A Jeep was arranged and both brothers accompanied by Ankit and the appellant reached District Hospital where Km. A was pronounced dead and Chandrapal was admitted in the hospital. PW2 Yogendra stayed there in the night with the dead body of Km.A and Rajendra lodged FIR at Police Station Khanpur on the same night at 2.30 A.M.

PW7 S.I. Sansar Singh Rathi, the then S.O. and I.O. of the case, disclosed that he took up the investigation and at the pointing out of Rajendra, inspected the scene of occurrence and prepared site-plan. He recovered blood stained earth and Chappal of the deceased and prepared a Fard. Fard recovery regarding blood stained earth and Chappal was proved by the I.O., which was marked as Exhibit Ka-2. PW1 Rajendra admitted in clear words in his cross-examination that none saw the appellant committing rape. They apprehended him on the basis of suspicion who subsequently confessed his guilt. It means, the appellant made extra judicial confession also before the informant and his brother Yogendra. Both brothers were cross-examined extensively and effectively on behalf of the appellant but we find nothing in their cross-examination to discard/disbelieve their testimony. It is true that there are some minor contradictions in their testimony. PW2 Yogendra disclosed that both brothers and their nephew and the appellant rushed to District Hospital on the fateful night where Km. A was declared dead and the appellant was admitted in the hospital and thereafter FIR was lodged at the Police station. Contrary to this, the informant gave out that he reached the Police station at about 9.00 P.M., stayed there and after having come to know that his daughter was dead, lodged FIR. In our opinion, this minor contradiction has no significance and does not weaken the prosecution case at all.

PW3 Dr. Dinesh Kumar, who conducted autopsy stated unequivocally that hymen was lacerated and there was bleeding from vagina, in his opinion, penetration of penis had taken place. Moreover, she was strangulated to death. He further disclosed that he collected one Kachhi and one frock from the body of the deceased, sealed clothes and handed over the sealed bundle to the constable. The prosecution filed report of Chemical Examiner (Exhibit Ka-13). We find from perusal of this report that there were bloodstains on Kachhi, frock, blood stained earth as well as Nekar. There were spermatozoa on Kachhi and Nekar and human semen on Kachhi and Nekar. Therefore in view of the medical evidence and categorical statement of the doctor who conducted autopsy coupled with report of the Chemical Examiner, learned Trial Judge concluded that the girl became victim of rape before her murder and there was penetration of the male organ in her vagina. The oozing of blood from vagina, recovery of blood stained earth, and presence of human semen and spermatozoa on Kacchi of the girl and on Nekar of the appellant clearly establish and prove that the appellant committed rape on a minor girl on the impugned day at the time and subsequently throttled her to death. In the opinion of the doctor, the death was caused by pressing her neck.

Lastly, it was submitted by the appellant''s learned Counsel that appellant was beaten up mercilessly by the informant and his brother on the impugned day at about 8.00 P.M. without any rhyme or reason and he sustained several injuries. When they felt that the appellant might die on account of injuries, they got him admitted in the hospital and lodged a false FIR in their defence. In order to prove the defence version, the appellant examined one Devendra Kumar. Chief Pharmacist, who clearly stated in his cross-examination that in emergency Dr. Rajiv Rastogi had examined the appellant or 27.03.2005 but he did not know and identify the signature and handwriting of Dr. Rastogi. In view of this statement of the defence witness, injuries of appellant were not duly proved. However, on perusal of the attested copy of the injury report, we find that all injuries were found to be simple and caused by hard and blunt weapon. Therefore, the aforesaid statement of the appellant that he was given severe thrashing by the informant and others stands falsified. The condition of the appellant was neither serious nor critical and he had no grievous injury on his body and as such, there was no question of lodging a false FIR by the informant. Moreover, he being cousin of the informant, there was no question of falsely implicating him and playing with the honour and prestige of the family by setting up a false case. It will not be out of place to mention that members of the family of a victim of sexual offences think several times before rushing to Police station. Normally nobody would like to play with the honour and prestige of his own family by involving the female members.

Keeping in view these factors and circumstances, the Apex Court has held in a catena of decisions that delay in lodging the FIR in respect of sexual offences is not at all fatal and parents and members of the family of the victim of rape, etc. show their reluctance in going to Police Station/Court. Therefore, it could not be said that delay took place in lodging FIR by the father of the girl.

It was also pointed out by the appellant''s learned Counsel that Chappal of the deceased was taken by the Police and a Fard recovery was also prepared. However, Chappal was not produced in the Court. It was further urged that no link evidence was led to show as to who took the sealed bundle of clothes to the Forensic Science Laboratory and as to when it was returned. Moreover, there was no sense in taking Nekar of the appellant in custody on 07.04.2005 and he must have changed his garments after 10-12 days of the incident. We have considered these submissions made on behalf of the appellant. It is true that Chappal was not produced and no link evidence was led to show as to who took the sealed bundle of clothes to the Forensic Laboratory. However, we are not inclined to accept the arguments advanced in this behalf. There are consistent statements of PW1 Rajendra, PW2 Yogendra and PW7 S.I. Sansar Singh Rathi I.O. of the case that Chappal of the deceased was found lying there and the I.O. had taken in custody. In this view of the matter, non-production of Chappal in the Court is not at all fatal. Similarly, no constable was examined to show that he took the sealed bundle to Chemical Examiner but S.I. Sansar Singh Rathi testified in clear words that he had sent the sealed bundle of clothes of the deceased and appellant to the Forensic Science Laboratory. Learned Counsel for the appellant has drawn our attention to the defects and deficiencies in the investigation of the case and it w as urged that the case was not investigated honestly. The Apex Court of the country has laid down in Dhanaj Singh @ Shera and others v. State of Punjab, 2004(48) ACC 940 that in a case of defective investigation Court has to be circumspect in evaluating evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. It is, therefore, clear that any defect or fault in the investigation of the case would not be a ground for acquittal and the Courts are required to scrutinize the evidence with great care and caution.

After having scrutinized and analyzed the entire record and the evidence led by the parties, we find that the prosecution succeeded in establishing the following circumstances:-

(1) Beth PW1 Rajendra and PW2 Yogendra, who are father and uncle of the deceased respectively, gave out that Km.A disappeared from her house on 26.03.2005 at about sun set and they were searching her.

(2) During search by the father of the girl, PW2 Yogendra and one Raju disclosed that they had seen the girl going in the company of Chandrapal who took her to his Gher.

(3) Both the brothers found the appellant standing in his Gher who first of all avoided to answer their queries. Subsequently on recovery of blood stained earth and Chappal of the deceased, the appellant confessed his guilt and made a disclosure about the girl who was found lying in unconscious condition in the heap of leaves.

(4) Both the girl and the appellant were taken to District Hospital where girl was pronounced dead and after her post-mortem examination it was clearly found that hymen was lacerated and vagina was bleeding. Dr. Dinesh Kumar further disclosed that there was penetration of male organ and death was caused as a result of strangulation.

(5) The report of the Chemical Examiner (Ex.Ka-13) further proved and established the situs of the incident as well as rape of the girl. The presence of blood, spermatozoa and human semen on the Kachhi. Nekar, frock and blood stained earth further established that the girl became victim of rape and thereafter the culprit killed her by strangulation.

(6) The defence version that the appellant was assaulted mercilessly by the informant and his brother. Since he sustained a large number of injuries, he was admitted in the hospital with a view to save their skin and a false case was set up was not established at all.

In view of the aforementioned circumstances coupled with testimony of two brothers, medical evidence and the report of the Chemical Examiner it can be safely held that the evidence and circumstances of the case are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the appellant. The circumstances proved in the case form a complete chain unerringly pointing to the guilt of the accused. We, therefore, find that no error was committed by the trial Judge in evaluation/appreciation of the evidence led by the parties and the learned Judge rightly concluded that the charges framed against the appellant were proved by the prosecution beyond all shadow- of doubt. It was the appellant and none else who satisfied his lust of sex and then committed murder of the victim on the impugned date and time in his Gher.

Lastly, it was submitted on behalf of the appellant that the Trial Court was not at all justified in imposing death penalty on the appellant for committing murder and there was no material on record to show that it was one of the rarest of rare case. Reliance was placed on two decisions of Supreme Court in Kumudi Lal v. State of U.P. (supra) and Machhi Singh v. State of Punjab (supra). In Kumudi Lal''s case a young girl aged about fourteen years was raped by the appellant and murdered. She belonged to Scheduled Caste. However, the Court altered the sentence to imprisonment for life. In the instant case, there is nothing on record to show that the appellant is a hardened criminal or daredevil. His antecedent has not been good and is history sheetor. He is a young man aged about 27 years. We find nothing on record to show that prior to this offence he had committed other offences and had faced trial. He did not escape from his Gher after committing crime. He made no attempt to run away from the hospital also. No doubt, it is true that he ravished a girl aged about five years only and after committing rape killed her. However, in our opinion, the present case does not come in the category of rarest of rare cases and death sentence has to be modified.

In the result, we allow this appeal partly. The conviction of appellant under sections 302 and 376(2)(f) of the Penal Code is confirmed. However, we modify the sentence of death and he is sentenced to suffer imprisonment for life u/s 302 I.P.C. He is sentenced to undergo imprisonment for life u/s 376(2)(f) IPC also. Both the sentences are directed to run concurrently.

The appellant is in Jail. He is directed to serve out the sentences.

A copy of this judgment along with Lower Court record shall be sent to Court below and C.J.M.. concerned for information and necessary compliance within ten days from today. Compliance report shall be submitted to this Court within six weeks from the date of receipt of a copy of this judgment.

Criminal Reference No.3 of 2007 made by learned Additional Sessions Judge u/s 366 Cr.P.C. is hereby rejected.

Appeal Partly Allowed.