Krishan alias Kabli vs State of Haryana

J.S. Sekhon, J.

Krishan appellant was tried on charge for offences punishable under Sections 363, 366, 376, 302 and 201/34, Indian Penal Code by the Additional Sessions Judge, Rothak who vide his judgment dated 9.10.1991 found him guilty and convicted on the charge of rape and murder of Miss Ram Ratti punishable under Section 376/302, Indian Penal Code, while his co accused Mahindra was acquitted of the charge for offence punishable under Section 201/34, Indian Penal Code. Krishanappellant was sentenced to undergo 10 years rigorous imprisonment on first count and R.1 for life on the second count. Both the sentences were, however, ordered to run concurrently.

Feeling aggrieved by his conviction and sentence, the appellant has come up in appeal.

In brief, the facts of the prosecution case are that Miss Ram Rati, hardly 15 years old, daughter of Om Parkash (PW10) used to reside with her parents in village Baland. On 5th of March, 1990 at about 9.00 AM she alongwith her brother''s wife Mst. Krishan (PW4) and her brother Hans Raj had gone to their field known as "Bala Wala" field for harvesting their sarson crop. Mst. Krishna (PW4) deputed Ms. Ram Rati for fetching water from the well located on the other side of the canal after getting earthen pitcher from "Doomwala" field. She failed to return about 45 minutes; upon which Hans Raj and Mst Krishna (PW4) went to "Doomwala" field and found the pitcher lying there. Ms. Ram Rati, however, was not traceable. They also went to their house, but failed to locate her. Thereafter they started searching for her in the fields. During this interval, Om Parkash (PW10), father of the deceased alongwith his cousin Bhai Ram while going towards the fields of the latter from the village at about 10.30 AM, saw Krishan accused moving about near the "Doomwala" field. Thereafter Om Parkash (PW10) stated helping his brother Bhai Ram in sowing sugarcane, in the latter''s field. Hans Raj and Mst. Krishna also contract them in the field and apprised them of the disappearance of Ms. Ram Rati. All these witnesses then waited for the return of Ram Rati till 12.30 P.M. Thereafter they started her search vigorously. Satbir Singh (PW2) son of aforesaid Bhai Ram, on learning from Mst. Krishna (PW4) about the disappearance of Ram Rati, went to Police Station, Kalanaura and lodged report Exhibit PD with ASI Ram Kumar regarding the missing of his cousin sister. The report was recorded at Sr. No. 25 in the Daily Diary Register of the Police Station. The ASI alerted all the neighbouring Police Stations on wireless regarding the missing of Ms. Ram Rati.

Om Parkash (PW10), father of the deceased, however, continued her search and that of Krishan accused, but found him absconding from the village. He suspected Krishan accused having enticed away his daughter. On the next evening, Sub Inspector Hukam Singh (PW13) on the basis of the report in the DDR, came to village Baland in order to recover Ms. Ram Rati. He met Om Parkash (PW10) in the village and recorded his statement Exhibit PE. It was concluded at 4.30 PM and sent to the Police Station for registration of a case for offences punishable under Sections 363/366 Indian Penal Code against Krishan accused. On its basis, formal FIR Ex. PE/1 was recorded by the Police Station at 4.50 P.M. for the above referred offences against the accused by ASI Gurbachan Singh on 6.3.1990. A special report was conveyed to the Judicial Magistrate, Rohtak on the same evening at 8.15 P.M. through Constable Shri Ram.

S.I. Hukam Singh continued searching for Krishan accused on that evening, but failed to locate him. On 7th of March 1990, at about 7.00 A.M., Krishan accused contacted Suraj Bhan (PW12) of his village and south his help for production before the police after admitting that on 5.3.1990 he had forcibly raped Ram Rati in his field "Doomwala" and thereafter killed her by throttling her neck due to fear that she would disclose the incident to some persons. Ram Kishan (PW14) was also present. The accused further told that he had concealed the deadbody of Ram Rati in a field of village Kaloi. These persons then produced Krishan accused before S.I. Hukam Singh at the P.S. Kalanaur, who after interrogating the accused, arrested him in this case. Kristian accused, on interrogation by S.I. Hukam Singh in the presence of the above referred witnesses, further disclosed having kept concealed the deadbody of Ram Rati in the sugarcane field of village Kaloi. His disclosure statement Exhibit PN was then recorded. In the meanwhile Om Parkash (PW10) had also arrived at the Police station. Thereafter all these witnesses alongwith SI Hukam Singh and Bhim Singh (PW6) Photographer, went in a jeep to the area of village Kaloi. The accused led the Police party to a sugarcane field wherein deadbody of Ram Rati was found lying naked. Her face had been wrapped with her salwar and a shawl. She was wearing jampar. Bhim Singh, Photographer (PW 6) took photographs of the deadbody at the spot. Salwar and shawl were then removed. from her face and some photographs of the dead body were also taken thereafter. All the above referred witnesses identified the deal body. Sub Inspector Hukam Singh took the deadbody into his possession vide memo Ex. P J. Two broken pieces of bangles were recovered from the spot where deadbody of Ram Rati lay and were taken into possession after putting these into a scaled parcel. Salwar and shawl were also sealed after putting these in a separate parcel. One pair of chappal was also found near the dead body and was taken into possession after putting it in a separate sealed parcel. Sub Inspector Hukam Singh also drafted the inquest report Exhibit PA/2. He also prepared the rough site plan Ex. PO of the place of the recovery besides recording the statements of the witnesses. The deadbody was entrusted to Constables Randhir Singh and Om Parkash for autopsy. Suraj Bhan and Om Parkash (PWs) were sent alongwith the dead body for identification purposes. Thereafter Sub Inspector Hukam Singh, Bhim Sain, Photographers, and Krishan accused went to village Baland. The accused led the police party to the field where he had committed rape on Ram Rati. Sub Inspector found the wheat crop trampled at the spot. On further examination, he recovered 3 small pieces of bangles and put the same in a sealed parcel. Bhim Sain, Photographer, also took some snaps of this spot. Sub Inspector also prepared the rough site plan Exhibit PQ of that place. He also recorded the statements of Ram Mehal (PW11) and Hoshiar Singh who had seen the accused driving tractortrolley on 5.3.1990 at about 1.30 P.M. along the road leading to Rohtak from village Baland. The accused refused to give them a lift despite their request. Mahinder accused was then sitting on the mudguard of the tractor. These witnesses saw some dry sarson loaded in the trolley. Krishan accused also led the policy party to a well and got recovered chaddar Ex. P.35 and palli Ex P36 from there in pursuance of his disclosure statement Ex PN recorded on 7.3.1990. These articles were taken into possession after putting them in separate sealed parcel vide memo Exhibit PM. The tractortrolley of the accused was also taken into possession on that day.

The autopsy on the deadbody of Ram Rati was conducted by Dr. Rata Chaudhary (PW1) on 7.3.1990 at 3.30 PM. at Civil Hospital, Rohtak. She found contused abrasion along the lower border of left side of mandible. She further found a transverse ligature mark on the front of the neck 1 cm below the thyroid. She also observed two crescents shaped abrasions on the left side on upper neck 1 cm below the mid madibulor point. She also found one single crescentic abrasion on right side. 2 cm from the mid of mandibulor border on right side. On dissection, whole of the anterior part of neck was found echhymosed especially under the ligature mark. On upper part of the chest, there was ecchymos is especially along the clavicle. Right cornua of hyoid bone was found fractured at the level of lateral 1/3rd with medial 2/3rd junction with ecchymosis at fractured side. Trachea was found congested. Superficial abrasion was also observed on the post medial aspect of right forearm, on the dorsum of left hand, on the left forearm besides one abrasion on lateral aspect of left thigh. A reddish bruise was also found on posteromedial aspect of left leg. Public hair were found melted. Clotted blood was found present over the postero medial aspect of both the thighs starting from the posteromedial wall of vagina. Facial matter was present over the genitalia. These were fresh tears in the hymen at 5.0'' clock portion. Hymen, labia minor were found oedematous while labia majora was inflamed. Alaceration was also found on the posterior vaginal wall at 5 ''0'' clock position. Posterior fourchette was reddish. In the opinion of this doctor, the death had occurred due to asphyxia as a result of strangulation. All the injuries were antemortem in nature and sufficient to cause death in the ordinary course of nature. This doctor also took vaginal swabs, public hair besides preparing two slides of vaginal smear. All these article put in sealed parcels and were sent to Forensic Science Laboratory through the police. From the injuries and the fresh tear of the hymen, this doctor opined that it was clear that the first sexual intercourse had been committed upon the deceased and that some of the injuries on her person could be the result of dragging on a hard surface. The Chemical Examiner found human semen on the swabs. The said doctor after receipt of report of the Chemical Examiner, had opined that it was clear that sexual intercourse had been committed upon Ram Rati.

Krishan accused was also to examined from Doctor Subhash Sharma (PW2) on 8.3.1990. He found sexual organ of the accused well developed, but the smegma was absent. There was no external injury. The accused was then wearing pyjama and underwear which were taken into possession after putting in a sealed parcel and handed over to the Police. As per this doctor, there was nothing to suggest that Krishan accused was not capable of performing sexual intercourse on 8.3.1990.

Mohinder, coaccused of the appellant, was arrested on 12.3.1990 by Sub Inspector Hukam Singh.

The sealed parcels of the broken pieces of bangles were sent to Forensic Science Laboratory. The Assistant Director (Physics) found that both the sets of broken pieces of bangles were similar in colour, design, appearance, outer/inner diameter and thickness. The sealed parcels of the clothes of Ram Rati i.e. Jumper, Salwar and Shawl and that of the accused i.e. Kaccha and Pyjama, were sent to Forensic Science Laboratory. The Chemical Examiner detected blood on the jumper of the deceased besides detecting human semen on the Pyjama Kachha (underwear) of the accused as well as on the virginal swabs. The Serologist, however, confirmed the origin of the blood on the jumper to be human.

After completion of investigation, the appellant alongwith his coaccused Mohinder (since acquitted) were arraigned for trail on such like allegations by submitting the chargesheet before the Committing Magistrate who committed the case against the accused to the Court of Sessions.

Before the trial court, in order to prove its above referred case, the prosecution examined 13 witnesses while Ram Kishan (PW14) was tendered for crossexamination. Reports Exhibits PU, PV and PV/1 of the Forensic Science Laboratory were also tendered. The formal evidence of constable Mehar Singh and MHC Dharambir was also tendered on affidavits Exhibits PJ and PX respectively as these witnesses were not required by the accused for cross examination purposes.

The version of Krishan accused appellant before the trial court in his statement under Section 313 Cr.P.C. was that of simple denial and false implication. He maintained having been arrested by the Police at 4.00 PM on 7.3.1990 and he remained in the village till then. There was a rumour in the village on the morning of 6.3.1990 regarding the deadbody of Ram Rati, being lying in the field of village Kaloi. He further maintained having been falsely implicated in this case by the Police with the connivance of Om Parkash, father of the deceased and other members of his family as they were inimical towards his family. He, however, admitted that his "Doomwala" field adjoins the field of Om Parkash (PW10) and Miss Ram Rati was unmarried daughter of Om Parkash, but depicted ignorance about her age. The appellant, however, led no defence besides being called upon to do so by the trial court.

The trial court believing the evidence of the witnesses having seen the accused moving about near the spot where Ms. Ram Rati was subjected to rape ocular with the extrajudicial confession, the evidence of recovery of the deadbody of Ram Rati and presence of human semen on the vaginal swabs of the deceased, recovery of broken pieces of bangles of the same kind from near the deadbody as well as from the field of the accused coupled with the medical evidence, convicted and sentenced the accused appellant as mentioned in the earlier part of the judgment. The trial court further held that though the charge under Section 201 Indian Penal Code stands proved against Krishan appellant, but there was no necessity of recording conviction for such an offence in view of the judgment of the Apex court in Kalawati v. State of H.P., AIR 1953 SC 131. Mohinder accused was, however, acquitted of the charge under Section 201/34 Indian Penal Code by giving him the benefit of doubt as the evidence of Ram Mehar (PW11) did not prove carrying of any dead body in the tractortrolley on 5.3.1990.

We have heard the learned Counsel for the parties besides perusing the record.

It is admitted case of the parties that "Doomwala" field of the Krishan accused adjoins the field of Om Parkash (PW10) father of the deceased. It is usual with the women folk of the State of Haryana to help the male members of their family in harvesting sarson crop or other crops as the farm labour is not easily available and there is likelihood of the sarson''s seed being wasted if the crop is not harvested at the proper time. The testimony of Mst. Krishan (PW4) clearly establishes that Ram Rati had also accompanied her, Hans Raj and other members of the family for harvesting the sarson crop. It is also customary with the villagers to keep the water in earthen pots for drinking purposes while working in the fields. The testimony of Mst Krishan (PW4) that she had sent Ms. Ram Rati at 11.00 AM to fetch water from the well after procuring an earthen pot from the field known as "Doomwala" field sounds truthful. Om Parkash (PW10) father of the deceased on that day was helping his cousin brother Bhai Ram in sowing the sugarcane in the nearby fields and had seen Krishan accused moving about near "Doomwala" field after 10.30 AM. No doubt the presence of Krishan accused being in his adjoining field is natural circumstances, yet all the same he being present near his field from where broken pieces of bangles were recovered, it can be well inferred that he had the opportunity to meet the deceased in the field and commit sexual intercourse with her. Faced with the above situation, Mr.P.C. Choudhary, the learned counsel for the appellant, contends that in the Daily Diary Report Exhibit PD lodged by Satbir Singh (PW3) cousin of the deceased, there is no indication of Krishan accused being present in his field and maintained that the above referred version of Om Parkash (PW10) is clearly an afterthought. No doubt in the said report, the presence of Krishan accused is conspicuously absent, yet all the same since this report was lodged by Satbir Singh (PW3) without meeting Om Parkash (PW10) before he left for the police Station, it is of no consequence especially when the presence of the accused near his filed as observed by Om Parkash (PW10) before the disappearance of his daughter is an in occurs circumstances. Moreover, the report Exhibit PD in the Daily Dairy cannot be said to be First Information Report of the cognizable offence as there is no allegation against any person having enticed away Miss Ram Rati, but that report relates to the disappearance of the victim. Consequently, this report cannot be treated as First Information Report of a cognizable offence under Section 154 of the Code of Criminal Procedure. The suspicion regarding the involvement of Krishna accused was exhibited for the first time by Om Parkash (PW10) in his statement Ex PE recorded by SI Hukam Singh in the village during the search of missing girl. On its basis, formal FIR Ex. PE/1 was recorded on 6.3.1990 at 5.50 PM and a case under sections 363/366 Indian Penal Code was registered against Krishan accused. In that report, Om Parkash (PW10) had simply suspected the involvement of the accused regarding the disappearance of his daughter as he (accused) happened to be present in the field where she had gone to pick up the pitcher. The detection of pitcher in the said field by Mst Krishna (PW4) further shows that the deceased had not proceeded towards the well for fetching water. Thus this piece of evidence lends supports to the conclusion that Ms. Ram Rati was subjected to rape and killed in the wheat field of Krishan accused wherefrom some pieces of her bangles were recovered by SI Hukam Singh.

There was no previous illwill between the family of Om Parkash (PW10) and that of Krishan accused. Keeping in view that the villagers are reluctant to disclose the erratic behaviours or conduct of their unmarried daughters, there is nothing abnormal in the conduct of Om Parkash (PW10) in not rushing to the Police Station on the day of occurrence but continued searching for his missing daughter. The medical evidence of Dr. Rita Chaudhary (PWI) further shows that the deceased was virgo intacta. Thus there is absolutely no doubt that she was a girl of good character. Consequently, it cannot be infered that the deceased had indulged in roaming about in the fields of village Kaloi or that some other persons had committed rape on her and killed her.

No doubt the evidence of extrajudicial confession is considered by the courts a weak piece of evidence unless the evidence of the witnesses before whom the accused had made confession is wholly reliable. In the case in hand, Suraj Bhan (PW12) is a co villagers of Krishan accused. It is not even suggested to him in what manner he was inimical towards the accused or related to the complainant. He is not only a cultivator of this village, but also a business man. Consequently, there is nothing Abnormal in the conduct of Krishan accused in seeking his help for production before the police after making the above referred confession. It is not acceptable that SI Hukam Singh before the postmortem examination of the deadbody had inferred that the deceased was subjected to rape before her killing by throttling. The details of the statement of Suraj Bhan (PW12) as well as the disclosure statement made by the accused and recovery of deadbody of Ram Rati are reflected in extenso in the inquest report, which was received and signed by Dr. Rita Chaudhary (PW1). Consequently, there is no scope for incorporating these facts in the inquest report later on. If that is so, then confessional statement of the accused that he had first committed forcibly sexual intercourse upon Ms. Ram Rati and thereafter killed her by throttling gets due assurance from the medical evidence. Consequently, there is no escape but to conclude that the evidence of Suraj Bhan (PW11) was rightly accepted by the trial Court being wholly reliable. The nonexamination of Ram Kishan witness, but simply tendering him for crossexamination qua extra judicial confession of the accused is thus of no consequence. In these circumstances, the trial Court rightly concluded that the retracted extrajudicial confession of the accused can be made the basis for recording conviction of the accused by relying upon the ratio of the decision of the Apex court in Abdul Ghani v. State of UP., 1973 Cr. Law Journal 280

. 18. The matter does not rest here as the recovery of the deadbody of Ms. Ram Rati in pursuance of his disclosure statement by Krishan accused further lends corroboration to this confessional statement that he had thrown the deadbody in a field of village Kaloi because it was got recovered by him from a sugarcane field of Zile Jat of village Kaloi. There is no force in the contention of the learned counsel for the appellant that the provisions of Section 27 of the Evidence Act would not be applicable to the recovery of the dead body as Suraj Bhan (PW12) already knew about its location because evidence of this witness shows that the accused had disclosed having concealed the deadbody in a field of village Kaloi, but he has not indicated the ownership or other particulars of the said filed. Consequently without the help of the disclosure statement and pointing out by Krishan accused, there was no chance of the recovery of the deadbody. The accused had made disclosure statement Ex. PN in the presence of Suraj Bhan (PW12) and Ram Krishan on interrogation by SI Hukam Singh. He had got recovered the deadbody of Ms. Ram Rati from the sugarcane field in the presence of Suraj Bhan, Om Parkash and Ram Krishan witnesses. Bhim Sain (PW6) Photographer was also present and had taken the snaps, the positive prints whereof are Exhibits P1 to P5. Out of these photographs, positive prints Ex. P1, P2 and P5 pertained to the deadbody when its face was covered with Shawl while Ex P3 and P4 were taken after removing the Shawl from the face. A perusal of these photographs also shows that the dead body was lying concealed in the thick growth of sugarcane crop. The judicial notice can be taken that sugarcane crop is fully grown up and fit for harvesting from November to April. The deadbody had not started emitting any foul smell. It was lying concealed deep inside the sugarcane field. Thus, there was no possibility of it having been detected by any person passing along nearby passage on sensing foul smell. The factum that the deadbody did not bear any bites of wild animals or rodents further shows that it was lying concealed in a sugar cane crop and these animals were not attracted as there was no foul smell. No doubt, Bhim Sain (PW6), photographer, admitted during crossexamination that three non officials accompanying the police party had pointed doubt the place where the deadbody was lying, but it is of no consequence as this witness was not expected to remember such details and the reasonable possibility of Suraj Bhan and Om Parkash, PWs, having located the dead body when the accused pointed out the sugarcane field, cannot be ruled out. Thus this circumstance in itself is not sufficient to hold that the accused had not got recovered the deadbody in pursuance of his disclosure statement or that the above referred witnesses already new about the location of the dead body. Thus it appears that the photographer had played upon his imagination in so deposing.

The learned counsel for the appellant has tried to assail the testimony of SI Hukam Singh (PW13) qua presence of two broken pieces of bangles near the dead body on the ground that their location at the spot is not depicted in the inquest report although the presence of other articles like chappals and clothes of the dead body do figure in column No. 7 therein. There is no force in this contention as small pieces of bangles may not have come to the notice of SI Hukam Singh at the time of drafting the inquest report, but after dispatching the deadbody from the spot, he had located the same in the thick growth of sugar cane crop and thereafter they were taken into possession alongwith the ornaments and clothes of the deceased i.e. woollen shawl, jumper, salwar, and a pair of chappals vide recovery memo Ex. PK.

The recovery of three pieces of bangles from the trampled wheat crop of the accused further shows that the victim was subjected to rape and killed by strangulation in the said field and renders due assurance to the extra judicial confession of the accused in this regard because the Assistance Director (Physics) Forensic Science Laboratory vide his report Ex. PV/1 had found three pieces of bangles and two pieces of bangles recovered from the place where the dead body of Ms. Ram Rati lay, of similar colour design, thickness and diameter. The medical evidence of Dr. Rita Chaudhary (PW1) also renders due assurance to the extrajudicial confession of Krishan accused before Suraj Bhan (PW112) besides establishing that the death of Mrs. Ram Rati was due to asphyxia resulting from strangulation. This Doctor had observed the following injuries on the person of the deceased during autopsy :

"1. 8 cm x 1 cm contused abrasion present along the lower border of left side of mandible start from mid chin interrupted in between, reddish brown in colour. Ecchymosis present.

There was ligature mark over the front of neck 1 cm below the thyroid prominence placed transversally. It was going on the right side 6 cm below the right side 6 cm below the right angle of mandible and 7 cm from below the mid mandibular point on the left side. The ligature mark was hard and parchment like.

There were two crescentic shaped abrasions over the left side of upper neck 1 cm below the mid mandibular point.

There was one single crescentic abrasion on right side. On dissection, whole of the anterior part of the neck was eccymosed, especially under the ligature mark. There was marginal ecchymosis. On upper part of chest, there was ecchymosis especially along the clevicles.

Right cornua of hyoid bone was fractured at the level of lateral 1/3rd with medial 2/3rd junction with eacchymosis at fractured side. Trachea congested.

Superficial abrasion on the post medial aspect of right forearm, 4 cm below the elbow joint.

1.5 cm x 0.5 cm abrasion on the dorsum of left hand, 1.5 cm proximal to M.P. joint of left ring finger.

1 cm. x 0.3 om abrasion on posterior aspect of left forearm, 10 cm proximal to the wrist joint.

1 cm x 0.5 cm abrasion on lateral aspect of left thing, 4 cm above the left knee joint.

2.5 cm x 1 cm reddish bruise on postero medial aspect of left leg 3 cm below left propliteal fosse.

3.5 cm x 0.3 abrasion on right upper thing postero lateral aspect, 18 cm. away from the right anterior superior iliac spine.

Examination of Genitalia : Public hair 2 to 3 cm long and melted. Clotted blood present over the postero medial aspect of both the thighs starting from the postero medial wall of vagina. Facial matter present over the genitalia. Labia minors were visible. On 5 ''0'' clock position, there was fresh ear in the hymen. Hymen was odematous, Libia minora odematous Libia majora inflammed and oedematous. There was laceration at 5 ''0'' clock position in the posterior vaginal wall. Posterior fourchette was reddish."

A bare glance of location and nature of the admitting sexual injuries on the person of the victim leaves no doubt that the abrasions could be result of dragging of the victim after committing sexual intercourse by the accused. In the confessional statement of the accused, there is specific mention that he had dragged her, after committing rape and throttling her, to the wheat field.

The acquittal of Mohinder accused on the charge under Section 201/34 Indian Penal Code is of no help to the accused as Ram Mehar (PW11) had not deposed having seen any deadbody in the tractortrolley driven by Krishan accused when he met them at 1.30 PM on 5.3.1990, whereas the other evidence discussed above without taking into consideration the evidence of Ram Mehar (PW11) is sufficient to sustain the conviction of the accused for the offences punishable under Sections 376 and 302, Indian Penal Code.

For the foregoing reasons, there is no scope of interfere with the well founded orders of convictions and sentences of the trial court which are hereby affirmed by rejecting the appeal.