Mormal and Another vs State of Rajasthan

Shiv Kumar Sharma, J.—Since both the appeals arise out of the same judgment, we proceed to decide them by a common judgment.

The appellants were the accused on the file of learned Additional Sessions Judge Laxmangarh District Alwar bearing Sessions Case No.121/2000. Learned Judge vide judgment dated July 26, 2001 convicted and sentenced the appellants as under:

(1) Mormal:

U/S.376 IPC:

To suffer seven years rigorous imprisonment and fine of Rs.500/-, in default to further suffer three months imprisonment.

U/S.302/34 IPC:

To suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer six months imprisonment.

(2)Moj Khan:

U/s. 302/34 IPC

To suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer six months imprisonment.

Substantial sentences were directed to run separately.

The prosecution case as unfolded during trial is that a written report was lodged by informant Sufeda Khan on January 28,1997 with the police station Laxmangarh to the effect that on returning to his village on January 27,1997 he found his daughter Hamidi, aged 10 years, missing. Hamidi had gone to filed but she did not return and her dead body was found in the field of Jumma. She was raped and killed. Police Station Laxmangarh registered a case under Sections 376 and 302 IPC and investigation commenced. Dead body of Hamidi was subjected to postmortem other necessary memos were drawn, statements of witnesses u/s 161 Cr.P.C. were recorded and the accused were arrested. After usual investigation the charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Laxmangarh District Alwar, who framed charges under sections Judge, Laxmangarh District Alwar, who framed charges under sections 302 and 376 IPC. The accused denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 21 witnesses. In the explanation u/s 313 Cr.P.C, the appellant claimed innocence and stated that they were falsely implicated. On hearing final submissions the learned trial Judge convicted and sentenced the appellants as indicated hereinabove.

This fact is not disputed that death of Hamidi was homicidal Dr. Battu Singh (PW. 15), who performed autopsy on the dead body found following antemortem injuries vide postmortem report (Ex.P21):

(1) Bruise 3.5x1.5cm oval in shape Rt. side neck ant. 1ateral position oblique downward direction just below jaw.

(2) Bruise 3x2.2cm Lt. side neck ant. 1ateral position downward direction just below jaw.

(3) Bruise 2.5x2cm Ltd. side neck semi direction as injury 1 to 2 just below injury No.2.

(4) Bruise 2x 1.5cm Ltd. side neck just near and below injury.

(5) Two Bruises (Pit like) mark 0.5x0.2cm on Lt. side.

(6) Bruise 3x2cm. Ltd. side Hypochondium.

(7) Bruise 3x1.5cm Ltd. Iliac fossa.

(8) Bruise 3x2.5cm Ltd. side thigh and medial side.

Private Parts:

Hymen it lacerated anterior and post one cm each side. Vagina Lacerated on it post surface 1.8cm long from hymen to sinner.

Bleed present on vagina.

Dissection of neck.

Blood clotted present under the skin, there is fracture of superior corny of thyroid at its base. Fracture of thyroid cartilag on it. side present.

In the opinion of

Doctor the cause of death was asphyxia due to throttling.

We have given our thoughtful consideration to the rival submissions and scanned the record.

Since there was no eye witness of the occurrence the prosecution relied on the following circumstances in support its case:

(i) Chance foot prints lifted from the crime scene were similar to the specimen foot print marks of the accused as per the report of the Finger Print Bureau.

(ii) Used condom was recovered from the field of informant Sufeda Khan at the instance of appellant Mormal.

(iii) Underwear stained with blood and semen belonging to appellant Mormal was recovered at his instance.

(iv) As per FSL report blood found on the clothes of deceased and the blood found on the underwear of appellant Mormal was of the same group i.e. ''Group AB''.

(v) Human Semen was found in the condom and on the underwear of appellant Mormal.

(vi) Blood lifted from crime scene was also of AB group.

(vii) Appellant Mormal was seen going towards the field of Sufeda on the date of incident.

It is well settled that in cases where the evidence is of a circumstantial nature, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

Bearing this principle in mind we proceed to scan the material on record. The prosecution examined Sufeda (Pw.1), Mamraj (Pw.2), Sitab (Pw.3) and Dinu Khan (Pw.4) to establish this fact that Hamidi on the date of the incident had gone to the field for collecting mustard leafs, when she did not come back till the evening, a search was made in the village. Next day around 7AM her dead body was found in the mustard field. Ibrahim (Pw.9) arid Jumma (Pw. 10) deposed that they had seen Mormal going towards the field of Sufeda on the date of incident. Chance foot prints were lifted from crime scene in the presence of Rajmal Khan (Pw.8). In his presence underwear and used condom at the instance of Mormal were recovered. Ramesh Chand (Pw.14) in his deposition stated that in the year 1996-97 he was posted as MPW at Berle Primary Health Centre and used to distribute condom and Mala-D tablets. In 1997 he supplied twenty condoms to Mormal free of cost. Nihal Singh (Pw.1 7) who investigated the case stated after the arrest Mormal volunteered that he had concealed used condom under the soil. This information was recorded in the memo Ex.P-38 and thereafter Mormal took him to the place where used condom was concealed and recovery of condom was effected vide memo Ex.P-9. He also recovered a packet of condoms and underwear at the instance of Mormal from his house vide recovery memos Ex.P-12 and Ex.P-13. Nihal Singh further deposed that chance foot prints were lifted on plaster of paris with the help of Constable Pratap Singh vide memos Ex.P-27 and Ex.P-28. Dr. B.P. Agarwal (Pw. 19) who was posted as Pathologist in the Govt. Hospital deposed that he examined the swab from Vagina of the deceased, but did not find semen.

Learned counsel for the appellants canvassed that the statement of Ibrahim (Pw.9) and Jumma (Pw. 10) could not have been relied upon to implicate the appellants. Recovery of underwear also does not connect the appellant Mormal with the crime, since it was recovered from an open place after a week. Since the procedure of taking foot prints was not followed and the Magistrate was not called, the alleged foot prints could not connect the appellants with the crime. The chappals were recovered vide recovery memo Ex.P-17 and allegedly sent to Director Finger Print Bureau on April 21, 1997, but in the receipt Ex.P-33 it was not mentioned that chappals were sealed.

Per contra, learned Public Prosecutor and learned counsel for the complainant supported the impugned judgment and canvassed that the case against the appellants beyond reasonable doubt.

Having given our anxious consideration to the submissions advanced before us, we find that the deceased Hamidi was around 11 years of age on the date of incident she was ravished and then killed by throttling. In her vagina no human semen was found. It is also established that at the instance of appellant Mormal used condom was recovered in which human semen was found. Underwear recovered at the instance of appellant Mormal was stained with human semen and human blood. Blood group was detected as AB and on the clothes of deceased Hamidi the human blood of AB group was found. On the date of incident witnesses had seen the appellant Mormal near the place of incident. Hamidi as per postmortem died as a result of asphyxia and there were ligature marks around her neck. Here hymen and vagina found lacerated and blood was present on vagina. Chance foot prints that were lifted from the crime scene on plaster of paris were similar with the specimen foot print marks of appellant Mormal and Moj Khan. Undeniably the sample of foot prints of appellants were not taken before a Magistrate, but the fact that foot marks corresponding is relevant. It is an evidence of identifying traces circumstantially. Identification by foot prints is rudimentary science and much reliance can not be placed on it. It can be relied upon alongwith other evidence pointing to identify. Bearing this principle in mind when we proceed to scan the material on record we find that in regard to chance foot print lifted on plaster of paris from crime scene were similar with that of the specimen foot prints of appellants. In Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, it was indicated by the Apex Court in para 9 as under:-

So far as the foot prints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample foot prints were not taken before a Magistrate. This apart the science of identification of foot prints is not fully developed science and, therefore, if in a given case-Unlike the present one evidence relating to the same is found satisfactory it may be used only to reinforce the conclusion as to identify of a culprit already arrived at on the basis of other evidence.

(Emphasis Supplied)

Looking to the other established circumstances we can safely use the evidence in regard to foot prints to reinforce the conclusion as to identity of the appellant Mormal.

In the ultimate analysis, we find a combination of facts creating network through them there is no escape for the appellant Mormal. From the material collected it is established that the appellant Mormal committed rape on Hamidi and then throttled her. The evidence collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant Mormal is guilty. We find that the chain of circumstantial evidence against the appellant Mormal is complete and incapable of any explanation or any other hypothesis then of the guilt of the accused.

In regard to charge against the appellant Moj Khan the only evidence collected by the prosecution is match of foot prints and only on that basis we can not convict and sentence the appellant Moj Khan.

For these reasons, we dispose of the instant appeals in the following terms:

(i) Appeals of appellant Moj Khan stands allowed and he is acquitted of the charge u/s 302/34 IPC. Appellant Moj Khan, who is on bail, shall not required to surrender and his bail bonds stands discharges.

(ii) Appeal of appellant Mormal is dismissed. We however observe that the sentences awarded to Mormal shall run concurrently.

(iii) The impugned judgment stands modified as indicated above.