K.P. Raja vs State of Madhya Pradesh

This appeal has been filed by the appellant, being aggrieved by the judgment dated 08.04.2004, passed by Additional Session Judge, Umaria in

S.T. No.167/2003, whereby the appellant has been found guilty for the offence under Sections 376(2)(h), 302 and 201 of the Indian Penal Code

and has been sentenced to life imprisonment and fine of Rs.500/- under Section 376(2)(h) of the I.P.C., imprisonment for life and fine of Rs.500/-

under Section 302 of the I.P.C. and rigorous imprisonment for 3 years and fine of Rs.500/- under Section 201 of the I.P.C. with a stipulation for

six months rigorous imprisonment in case of default for each offence.

The case of prosecution is that on 02.03.2003, the appellant committed rape on the deceased and thereafter crushed her to death with stones

and to hide her dead body, threw it in the Mangthra Dam and put stones over her chest and legs.

According to prosecution, the deceased aged 7 years, daughter of Budhram Munda (P.W.-1) was known to the appellant. According to

prosecution, deceased used to go to Sunil''s (P.W.-4) house to watch T.V., where the appellant was a frequent visitor. On 02.03.2003 at 9 A.M.

in the morning, when the deceased was out for grazing her goats, appellant took her to a secluded place and raped her and thereafter murdered

her by crushing her with stones on her head and threw her body in Mangthra Dam and put to heavy stones over the body so as to make the

evidence disappear of the crime committed by him.

It is further the case of prosecution that as the deceased did not return till 1.00 P.M., Budhram (P.W.-1) went to search for her, where he met

the appellant. The appellant on being asked, whether he has seen the deceased, has replied that some goats were grazing near the dam. As the

deceased was not traceable, missing person report was lodged at police station Pali on 03.03.2003. On the same day, at about 2.30 P.M., the

appellant disclosed to Budhram (P.W.-1) that body of his daughter is lying in the water. Budhram (P.W.-1) thereafter went alongwith appellant on

his scooter to Mangthra Dam, where he found the dead body of his daughter submerged in water with stones on her chest and legs.

Report to this effect was lodged by Budhram (P.W.-1 ) at police Station Pali and merg was recorded. On the basis of this report, criminal law

was set into motion and the body of the deceased was recovered from Mangthra Dam and sent for postmortem. Spot map was made and stones,

slipper and a packet of berry were seized from the spot and the statement of witnesses were also recorded.

The postmortem of the body of deceased was conducted by a team of doctors, who confirmed that the deceased was sexually assaulted prior

to her death. The underwear and the vaginal smear slides of the deceased were sent for chemical examination.

The appellant was arrested on 09.03.2003 and medically examined. His semen slides were also prepared and sent for chemical examination.

After completion of the investigation, the appellant was tried for committing the offence under Section 376(2)(h), 302 and 201 of the I.P.C.

There were 15 witnesses examined on behalf of the prosecution. The appellant pleaded not guilty, however, he chose not to produce any witness.

The trial Court relying on the evidence of P.W.-1 Budhram, P.W.-4 Sunil, P.W.-6 Harda Nayak and on the basis of medical evidence found

the appellant guilty of committing the offence under Sections 376(2) (h), 302 and 201 of the I.P.C. and convicted him as aforesaid.

It is submitted by Shri S.C. Datt, learned Senior counsel for the appellant that the trial Court has committed illegality in placing reliance on the

testimony of father of the deceased as well as other witnesses to establish the last seen theory. It is further urged that there are material

inconsistencies, contradictions and omissions, which had seriously affected the prosecution case and the chain of circumstances for implicating the

appellant in the crime has not been established by the prosecution.

Shri Sudeep Deb, learned Govt. Advocate for the state, on the other hand, contends that the prosecution has succeeded in proving the guilt of

the appellant beyond reasonable doubt. It is contended that the witnesses have remained consistent and unshaken in their testimony and the Court

below has rightly recorded the finding of conviction against the appellant.

Having heard the learned counsel for the parties and on perusal of the record, it is observed that the present case is based solely on

circumstantial evidence. It is well settled that the circumstances from which guilt of the accused is to be drawn should in the first instance be fully

established and the circumstances should be of conclusive nature.

In Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 the Supreme Court has laid down the five golden principle of

proof in regard to circumstantial evidence, which are :-

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should''

and not ''may be'' established;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable

on any other hypothesis except that the accused is guilty;

(3) The circumstances should be of a conclusive nature and tendency;

(4) They should exclude every possible hypothesis except the one to be proved; and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.

In the present case, the trial Court on the basis of the unnatural death of the deceased and the fact that she was sexually assaulted prior to her

death and the semen stains were found on the vaginal slides, found the offence against the appellant as proved. A perusal of postmortem report

reveals that at the time of postmortem, position of the legs was folded, body pale, right eye ball bulged, left eye closed, tongue slightly protruded.

From both the nostrils fluid/blood coming out, whole body swelled up, abdomen distended, mud stained over both legs, fecal matter stained over

external anal orifice. They found the following injuries over the body of the deceased :-

(1) Multiple tiny abrasions over face with compressed face, nasal and maxillary prominence, stained with blood.

(2) Contusions over chest on left side extending upto coastal margin.

On internal examination, the doctors found the following injuries :-

Fracture of ribs 3rd to 5th anteriorly and middle towards anteriorly. Ruptured at the level of fracture ribs. Collecting of blood in thoracic cavity

Vulva red and swallows, Labia Majora and minora red and congested and lacerated. Hymens read, congested and ruptured posteriorly in the mid

line vaginal opening allowing the passage of one index finger freely. Blood mix with water coming out from the vaginal orifice.

The doctors have opined that all the injuries were ante-mortem in nature and the deceased was subjected to sexual intercourse before the death.

According to doctors, cause of death was shock, as a result of excessive internal haemorrhage and due to chest injury (fracture ribs) and rupture

of lung (vital organ).

From the aforesaid medical evidence, it is clear that the deceased was subjected to forcible sexual intercourse and the death was homicidal in

nature.

It is clear from the medical evidence that vaginal slides and semen slides were sent for chemical examination. Serologist report (Ex. P-13)

mentions that semen was found on the vaginal slides and also on the slides collected from the accused. However, no DNA testing was done to

establish the fact that semen stains found on the vaginal slides of the deceased were of the appellant. There is a serious lacuna in the investigation

and a necessary test which could have established the identity of the accused was not done.

The next incriminating fact on which the trial Court relied was the presence of accused near the place of incident on the fateful day and the fact

that deceased knew him prior to the incident. The trial Court has also relied on the fact that appellant was the person who first informed P.W.-1

Buddram about the body of his daughter lying in water and took him there on scooter.

P.W.-1 Buddram, father of the deceased has been declared hostile, but in his examination-in-chief, he has stated that the appellant used to visit

the hotel and house of Sunil (P.W.-4), where his deceased daughter used to go for watching the T.V. He has further stated that on 02.03.2003,

while he was searching for his daughter, he met the appellant and on being asked, the appellant informed him about the goats grazing near the dam

and on the next day at Sunil''s hotel, the appellant has informed him about the body of his daughter lying in the water and took him on his scooter to

the spot, where he found the body of his daughter submerged in water. Similar is the statement of Sunil (P.W.-4), who had stated that appellant

informed him about seeing body of a dead child in water.

Moreover, P.W.-5 Vijayshankar Pandey witness of arrest memo and seizure has also not supported the story of prosecution.

P.W.-6 Harda Nayak who has been relied on by the trial Court as the last seen witness has stated that he had seen the deceased standing with

the appellant on the fateful day. He claimed to be at Sunil''s hotel when the appellant informed Budhram (P.W.-1) about the dead body of his

daughter being seen lying in water but surprisingly failed to mention this important fact about seeing the deceased with appellant on the fateful day

either to P.W.-1 Budhram or to Sunil (P.W.-4) or to police officers, which renders his story suspicious.

Budhram (P.W.-1), father of the deceased had lodged a report at police station Pali at 4 P.M. on 03.03.2003 to the effect that his daughter

aged 6 years had gone to graze the goats towards Haidal at 9 A.M., on previous day i.e., 02.03.2003, however, when she did not return, till 12

P.M., he search for her in the nearby forest, but in vein. He has further stated that today, (i.e., on 03.03.2003) also he went with Nehru Kishan to

search at Mangthara Dam, where he found the dead body of his deceased daughter submerged in water in the dam. According to him, she had

died of drowning in the dam. On the basis of this report, merg was registered and after initial investigation, FIR was registered against unknown

persons.

Moreover, R.M. Shukla, (P.W.-13) I.O., who has recorded the case diary statement of P.W.-1 Budhram has clearly stated that Budhram has

not told him that appellant has informed him about the dead body of his daughter lying in the Dam nor Budhram has stated that appellant took him

to the spot on his scooter.

The statements of these witnesses when read in conjunction with FIR, does not inspire confidence. There are many contradictions and

improvements in the statements of these witnesses which render their testimony unreliable. Even if the fact of deceased knowing the accused

person prior to the incident is presumed to be true, that in itself is not sufficient to connect the appellant with the alleged incident.

On careful scrutiny of the evidence on record and in view of the law laid down in Sharad Birdhichand Sarda (Supra), it is clear that the

prosecution has failed to link the accused with the incident. There are material discrepancies, exaggeration and improvisation in the statement of

prosecution witnesses. It is thus clear that the chain of events connecting accused with the crime has not been proved and established by cogent

evidence.

In view of the aforesaid analysis, we are of the considered opinion that the finding of guilt and the consequential conviction of appellant for an

offence punishable under Sections 376(2)(h), 302 and 201 of the I.P.C. does not find any support from the oral and documentary evidence on

record and deserves to be set aside.

Accordingly, the criminal appeal filed by appellant K.P. Raja is hereby allowed and his conviction under Sections 376(2)(h), 302 and 201 of

the I.P.C. is hereby set aside. The appellant is directed to be released forthwith, if not required in any other case.