Ghantoo vs State of U.P.

Imtiyaz Murtaza, J.—This appeal is directed against the judgment and order dated 13.3.2006 passed by Addl. Sessions Judge, Fast Track Court No. 1, Gorakhpur in S.T. No. 457 of 2004 State v. Ghantoo whereby the appellant is convicted and sentenced to death u/s 302 I.P.C. and further convicted u/s 376 I.P.C. and sentenced to undergo R.I. for 10 years and a fine of Rs. 3000/-.

The brief facts of the case are that the informant Pardeshi had gone to village Bankatwan on 6.8.2004 alongwith his family'' members. His daughter in law and daughters Sambhawati and Subhawati were alone in the house. Km. Sambhawati, aged about 15 years had gone to take fodder from the fodder house. On hearing her shrieks her daughter and daughter-in-law rushed and saw that the appellant Ghantoo was coming out from the fodder house and ran away. His daughter and daughter-in-law had seen him running away and his daughter Km. Sabhawati was lying dead in the fodder house. He suspected that his daughter was raped and on account of that she died. The report was entered in the G.D. Sub-Inspector B.P. Misra reached at the place of occurrence along with S.H.O. Ajeet Kumar Singh and other police personnel and on the direction of S.H.O. he started inquest proceedings. After the inquest the dead body was handed over to Con. Kanhaiya Lal Yadav and Homeguard Suresh Prasad. The inquest report is Ext. Ka. 2 and letter to C.M.O., letter to R.I., challan lash and photo lash are Exts. Ka. 3 to Ka. 6. Head Constable Sahendra Kumar Yadav had registered the case on the basis of report which is Ext. Ka. 7 G.D. entry is Ext. Ka. 8. S.H.O. Ajeet Kumar Singh, P.S. Ahirauli Bazar commenced the investigation. Sri B.P. Mishra, S.I. prepared the inquest report on his direction. He also recorded the statements of the inquest witnesses and prepared the site plan which is Ext. Ka. 11. On 9.8.2004 he recorded the statements of witnesses Subhawati, Urmila, Samai and Panmati. He also dispatched the vaginal swab for pathological examination. After the conclusion of the investigation he submitted the charge sheet under Sections 376 and 302 I.P.C. which is Ext. Ka. 12. Dr. R.S. Mishra had conducted the pathological examination of vaginal swab and found spermatozoa in its report which is Ex.Ka 9. Dr. R.A.L. Gupta had conducted the post-mortem examination on 7.8.2004 on the dead body of Km. Sambhawati. He noted following ante-mortem injuries:

Ligature mark 12 cm. x 1 cm over front of neck, below thyroid cartilage.

Contusion 6 cm x 4 cm over (Rt.) cheek.

Contusion 4 cm x 4 cm over (Lt.) cheek. On cutting Haematoma present & on cutting ligature mark, there is congestion present underneath & extra-vasation of Blood on Both carotid region, Trachea congested having Bloody froth. Hyoid Bone fractured.

In his opinion the cause of death was due to asphyxia as a result of strangulation.

After the submission of the charge-sheet, the case was committed to the court of Sessions. The Sessions Judge had framed charges against the appellant u/s 302 and 376 I.P.C. to which he denied and claimed trial. The prosecution in order to support its case examined 8 prosecution witnesses. The case of the defence was of denial. It was suggested that at the instance of informant, Pardesi P.W. 2 and P.W. 3 are falsely deposing against him. The defence had examined 2 defence witnesses.

The Sessions Judge had convicted the appellant, as aforesaid. Hence this appeal.

We have heard Shri Rajeev Chaddha, learned Counsel for the appellant and Sri Arunendra Singh, learned A.G.A. for the State.

It is contended by learned Counsel for the appellant that the appellant has been falsely implicated in this case. The presence of eyewitnesses is highly doubtful as no independent witness has supported the prosecution case and Sessions Judge had wrongly convicted the appellant on the basis of conjecture and surmises. It was further submitted that the statement of P.W. 2 Urmila was recorded by the investigating officer in which she had given a totally different version and did not implicate appellant and the Sessions Judge wrongly ignored the said statement. On the basis of evidence on the record no offence u/s 302 I.P.C. is made out against the appellant.

In order to appreciate the submissions of the counsel for the appellant we have to examine the testimonies of the witnesses.

P.W. 1 Pardeshi deposed that on the date of occurrence he had gone alongwith his wife to village Bankatwa for performing the death ceremony of his son-in-law Sohan. His two daughters namely, Subhawati and Sambhawati remained in the house alongwith his daughter-in-law Urmila. When he returned after the ceremony his daughter and Urmila told him that Sambhawati had gone to a shanty where fodder was kept and appellant had committed rape and thereafter killed her by strangulation. After committing the crime he'' ran away after removing the wall of the bricks. He saw the dead body of his daughter. He scribed the report by Devendra Kumar and lodged the same at the police station, which is Ext. Ka-1. The investigating officer had also prepared the inquest on the dead body of his daughter.

P.W. 2 Urmila deposed that on the date of occurrence his father-in-law Pardeshi, mother-in-law Chandmati and brother-in-law Ram Bhawan and his wife had gone to village Bankatwa. She was in the house alongwith his two sisters-in-law, namely, Subhawati and Sambhawati. At about 2 to 2.30 p.m. they heard the cries; of, -Sambhawati. She alongwith Subhawati had gone in the room where the fodder was kept and saw that the appellant was committing rape and thereafter he had strangulated Sambhawati. Seeing them he ran away from the room.

P.W. 3 Subhawati was a child witness and she was found competent to give evidence by the Sessions Judge. She deposed that on the date of occurrence she, her sister-in-law Urmila and sister Sambhawati were in the house. His father, mother, elder brother Ram Bhawan and his wife Sirjawati had gone to perform the death ceremony of her brother-in-law. At about 2 - 2.30 p.m. Sambhawati had gone to bring fodder from a room. Ghantoo reached there and committed rape. Hearing her cries she reached there and saw the occurrence and called her sister-in-law Urmila and found that his sister was trying to cry but Ghantoo was pressing her neck and seeing them accused appellant ran away from the eastern side. They reached in the room and saw that Sambhawati was lying dead. After some time his father, mother, brother and sister-in-law returned and the dead body of Sambhawati was brought outside the room.

P.W. 4 S.I. B.P. Srivastava deposed that on 6.8.2004 he was posted at P.S. Gulharia. He had entered the information of Pardeshi in G.D. and thereafter he alongwith S.O. Ajit Kumar Singh reached at the place of occurrence and on the direction of S.H.O. he had prepared the inquest on the dead body. After conclusion of the inquest proceedings the dead body was sealed and handed over to constable Kanhaiya Lal and Surejendra Prasad for carrying it to the mortuary. The inquest memo is Ext. Ka-2. Letter to C.M.O., letter to R.I., Challan lash and Photo Lash are Exts. Ka-3 to Ka-6.

P.W. 5 H.C. Sahendra Kumar Yadava deposed that he had entered the information given by Pardeshi in-the G.D. No. 45. After the registration of the information in the G.D., S.H.O., Ajit Kumar Singh, S.I.B.P. Srivastava, constable Kanhaiya Singh Yadav, H.C. Suresh Prasad and constable Ram Deo Yadav reached at the place of occurrence. Copy of the G.D. entry is Ext. Ka-7. After the receipt of the post mortem report on 8.8.2004 case crime No. 522 of 2004 was registered u/s 376, 302 I.P.C. against Ghantoo. A copy of the G.D. entry is Ext. Ka-8.

P.W. 6 Dr. R.S. Misra had conducted the examination of vaginal swab and he found dead spermatozoa and the report of vaginal swab examination is Ext. Ka-9.

P.W. 7 Dr. R.A.L. Gupta had conducted the post mortem examination of the deceased.

P.W. 8 S.H.O. Ajit Kumar Singh is the investigating officer of the case.

The defence has examined two witnesses.

D.W. 1 Makatu deposed that daughter of Pardeshi had died about one and a half year back. Her dead body was taken out from a room by Kashi Nath and Tushar. On the date of occurrence wife of Jhinnu Beldar had died. He was present in his house. Other villagers had gone to attend the cremation.

D.W. 2 Vinod Kumar Singh deposed that on 6.8.2004 wife of Jhinnu had died and cremation had taken place about 2 - 2.30 p.m. Several persons attended her cremation. When the dead body of the wife of Jhinnu was taken away from the village, Sambhawati had died. The dead body of Sambhawati was taken out of house and at that time Pardeshi was not present.

The case of the defence was of denial and the appellant in his statement u/s 313 Cr.P.C. stated that Urmila and Subhawati are deposing falsely at the instance of Pardeshi.

The contention of counsel for the appellant is that the Sessions Judge committed illegality, in relying upon the testimonies of P.W. 2 and P.W. 3, who are sister and sister-in-law of the deceased and no independent witness is corroborating their testimonies.

We do not find any substance in this submission because there is no proposition of law that the testimony of related and interested witnesses cannot be accepted. It is important to mention here that witnesses, have stated that the villagers had gone to attend the cremation of wife of Jhinu. In such a situation if other independent witnesses are not produced the eye witness account cannot be disbelieved. D.W. 1 had also admitted that several persons had gone to attend the cremation but he did not go. We have carefully examined the testimonies of P.W. 2 and P.W. 3 and in our opinion their testimonies are credible and truthful. One of them is sister of the deceased and other is sister in law and their presence in the house is quite natural. The first information report was lodged P.W. 1 on their information. The Sessions Judge has rightly held that in the information the allegation of rape was not mentioned in so many words because P.W. 2 was his daughter in law and P.W. 3 was a child and it is not expected that daughter in law will describe rape to his father in law in so many words. The eye witness account finds corroboration from the post mortem report also. Both the witnesses have consistently stated that Ghantoo had committed rape and this finds corroboration from the medical evidence. In the post mortem report three ante mortem injuries were noted by the doctor, which belies the suggestion of the defence that she had committed suicide. It is important to mention that in the vaginal swab dead spermatozoa were found by the doctor. The time of lodging of the report is not challenged by the defence and this report was registered prior to recording of the statements of the witnesses. The suggestion of the defence that P.W. 2 and P.W. 3 are deposing falsely at the instance of Pardeshi, P.W. 1, but no reason has been suggested to Pardeshi for falsely roping the appellant instead of actual culprit. The deceased was her daughter and his endeavour would be to punish the author of this dastardly crime.

The counsel for the appellant vehemently submitted that initially the case was not of murder and drew attention of court to the inquest report where the statement of P.W. 2 Urmila was recorded by the investigating officer and according to this statement Km. Sambhawati Devi was suffering from chest pain and she had advised her to take some medicine. Her sister-in-law Subhawati was also present in the house. After taking the medicine her sister-in-law went inside the room to sleep. After sometime she saw that she was lying dead. In support of his submission counsel for the appellant placed reliance on a decision of Apex Court in the case of Shivaji Dayanu Patil v. State of Maharashtra reported in (1989) A.Cr.R. 595 where the Apex Court has disbelived the testimony of a witness on the ground that her statement recorded by Police Head Constable was entirely different than what she stated at the trial.

We do not find any basis for this argument. It is not at all necessary in law to incorporate the statements of the witnesses in the inquest report. The inquest report is to be made by the investigating officer just to indicate the injuries which he has found on the body of the deceased. It may be witnessed by one or two persons but it is not at all necessary for the I.O. to record the statements of the witnesses or to get the statements of the witnesses signed on the inquest report. It is also important to note that she was not a witness of inquest report and her statement was also not required to be signed. The inquest was prepared after the information given by Pardeshi at the police station. In the information which was entered in the G.D. specific allegations were made against Ghantoo. It is also important to mention that the investigating officer did not record the information as an F.I.R. The Sessions Judge has rightly criticized the conduct of the investigating officer. The statement of a witness on the inquest report is not admissible in view of Section 162 Cr.P.C. The Apex Court in the case of Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others, held as under:

Section 162 in that Chapter, provides inter alia that no statement of any person, if recorded by a police officer in the course of investigation, shall be signed by the person making it. Even a statement of a witness recorded by the investigator during the inquest u/s 174 would be within the inhibition of Section 162. Behind this provision is a wholesome rule of public policy that witnesses at the trial should be free to tell the truth, unhampered by anything they might have been made to say to the police.

In another case the Apex Court reported in Rameshwar Dayal and Others Vs. State of Uttar Pradesh, has held that "This proposition is well settled. Any statement made by any witness to a police officer during investigation is clearly hit by Section 162 and can be used only for contradicting or corroborating the other witness and is not a substantive piece of evidence."

P.W. 2 Urmila had also denied to have given any such statement to the investigating officer. In any case the statement recorded by the investigating officer is not a substantive evidence. Moreover, Smt. Urmila was not a witness of the inquest report. The Sessions Judge had rightly ignored the statement of P.W. 2 Urmila recorded by the investigating officer on the inquest report. The decision in the case of Shivaji Dayanu Patil (supra) is not applicable in the facts and circumstances of the case because the Apex Court did not rely on the testimony of witness also on the ground that her conduct was highly unnatural. She did not disclose the name of assailants for 3 days.

The next submission of the counsel for the appellant is that on the facts and circumstances of the case no offence u/s 302 I.P.C. is made out against the appellant because according to prosecution case appellant had committed rape and in the commission of that crime death of the deceased had resulted. In support of his submission the counsel for the appellant has placed reliance on a decision of the Apex Court reported in (2003) (1) JIC 153 State of A.P. v. T. Prasanna Kumar where the Apex Court had converted the conviction from 302 I.P.C. to Section 304(11) I.P.C.

We do not find any substance in this submission. The facts in the decision of the Apex Court mentioned above were totally different because in that case deceased had sustained some small contusions, scratches and abrasions. In this case post mortem report indicates apart from two contusions a ligature mark 12 cm. x 1 cm. over front of neck and in the opinion of the doctor cause of death was asphyxia as a result of strangulation. This injury cannot be said to be accidental injury. The Sessions Judge has rightly convicted the appellant u/s 302 I.P.C.

We have carefully examined the testimonies of P.W.I Pardesi. P.W. 2 Urmila P.W. 3 Subhawati and in our opinion their testimonies are credible, reliable and trustworthy. The defence witnesses do not help the accused in any manner. D.W. 1 states that he was present in the village at the time of occurrence but he admitted that on the date of occurrence some persons had gone to attend the cremation of wife of Jhinnu Beldar. D.W. 2 Vinod Kumar Singh deposed that dead body of the wife of Jhinnu for cremation was taken away about 2-2.30 p.m. He did not attend the cremation. Sambhawati died after dead body of wife of Jhinnu was taken away for cremation. The statement of the defence witnesses supports the prosecution witnesses about place and time of the occurrence.

The Sessions Judge has rightly placed reliance on the testimonies of the eyewitnesses. The Sessions Judge has rightly recorded findings of conviction of the appellant and we also affirm the findings recorded by the trial court.

Lastly the Sessions Judge has awarded death sentence to appellant. The Sessions Judge has awarded death sentence on the ground that he has committed rape and murder of a 10 years old girl.

Under the old code of criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab AIR 1980 ph 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.

Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance. The appellant was also aged about 18 years at the time of commission of crime.

Considering the over all circumstances of the case and the nature of evidence on the record this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellant would meet the ends of justice.

For the reasons stated above the appeal is dismissed with the modification that while affirming the conviction of the appellant u/s 302 I.P.O. we reduce the sentence of death imposed by the trial court to imprisonment for life. However, the conviction and sentence of the appellant u/s 376 I.P.C. is maintained. Appellant is in jail, he shall be kept, there to serve out the sentence awarded by the trial court and modified by this court.

Reference for confirmation of the death sentence of the appellant is hereby rejected.

Office is directed to communicate this order to the court concerned within fifteen days for information.