Munesh alias Sheru vs State of U.P.

U.S. Tripathi, J.—This appeal has been preferred from Jail against the judgment and order dated 5.11.1998, passed by I Xth Additional Sessions Judge, Meerut in Sessions Trial No. 1404 of 1997 convicting the Appellant under Sections 302 and 376, I.P.C. and sentencing him to undergo imprisonment for life and fine of Rs. 5,000 u/s 302, I.P.C. and R.I. for a period of 10 years and fine of Rs. 5,000 u/s 376, I.P.C. In default of payment of fine he was further sentenced to undergo R.I. for a period of two years on each count.

The prosecution story, briefly stated, was as under:

On the evening of 26.8.1997 at about 5.00 p.m. Km. Nasreen deceased, aged about 8 years, daughter of Hakimuddin and Km. Kaushal deceased, aged about 12 years, daughter of Mange Ram (P.W. 1) had gone to sugarcane field of Jai Karan of their village to attend the call of nature. After some times Smt. Bala came running to the village and told that she had heard shrieks of children in the field of Jai Karan. On above information Mange Ram (P.W. 1), Billoo (P.W. 2), Charan Singh (P.W. 3) and several other persons of the village rushed towards sugarcane field of Jai Karan and surrounded it from all sides. Mange Ram (P.W. 1), Billoo (P.W. 2), Charan Singh (P.W. 3), Dhanpal and Karan Pal entered into sugarcane field from eastern side and at some distance inside the fields saw that the Appellant had murdered Km. Nasreen deceased and was killing Km. Kaushal deceased after committing rape on her. The salwar of Km. Kaushal deceased was pulled up to her knees and blood was coming from her private part. Mange Ram (P.W. 1), Billoo (P.W. 2) and Charan Singh (P.W. 3) and others caught hold the Appellant on the spot and Charan Singh (P.W. 3) removed clothes from the neck of the two deceased, but by that time both the deceased had died.

Mange Ram (P.W. 1) prepared report (Ext. Ka-1) of the occurrence and taking the Appellant Munesh came to police station Daurala, where he lodged report at 7.15 p.m. and handed over the Appellant to the police. On the basis of written report (Ext. Ka-1) chik F.I.R. (Ext. Ka-17) was prepared by head constable Kshetrapal Singh (P.W. 6), who made an endorsement of the same at G.D. report (Ext. Ka-18) and put the Appellant in lock-up.

The investigation of the case was taken up by Sri B. R. Arya (P.W. 8) who interrogated the Appellant and thereafter came to the spot along with S.I. Govind Singh Rawat (P.W. 4) and got conducted inquest of the dead body of the deceased through Govind Singh Rawat who prepared inquest report, sealed the dead body and handed over to constable Om Prakash (P.W. 9) and Surendra Singh for post-mortem. The Investigating Officer interrogated Mange Ram (P.W. 1) and inspected place of occurrence. He prepared site plan (Ext. Ka-19). He also recovered blood stained and simple earth from the spot and prepared recovery memo (Exts. Ka-12 and 13). On 27.8.1997, the Investigating Officer took into possession the underwear of the Appellant which was bearing semen stains and it was sealed in the presence of Chatar Singh (P.W. 7). The Investigating Officer interrogated Billoo (P.W. 2), Charan Singh (P.W. 3), Chatar Singh (P.W. 7) and other witnesses.

The autopsy on the dead body of the deceased Km. Nasreen and Km. Kaushal was conducted on 27.8.1997 by Dr. R. P. Misra (P.W. 5) who found bruises on the cheek and nose of Nasreen and cause of death due to smothering leading to suffocation. He found bruises on the neck, thyroid cartridges and both angle of jaw as well as bruises on labia majora and bleeding around the genital and labia minora as well as rupture of hymen of Km. Kaushal and cause of death as smothering due to suffocation. He prepared post-mortem report (Exts. Ka-15 and Ka-16).

The Investigating Officer completed remaining investigation and submitted charge-sheet against the Appellant.

Cognizance of the case was taken by the Magistrate who committed the case to the Court of Session.

The Appellant was charged with the offences punishable under Sections 302 and 376, I.P.C. He pleaded not guilty and contended that he had enmity with Onkar Singh, advocate and was falsely implicated on his instigation.

The prosecution in support of its case examined Mange Ram (P.W. 1), Billoo (P.W. 2) and Charan Singh (P.W. 3) as witnesses of fact besides S.I. Govind Singh Rawat (P.W. 4), who conducted inquest of the dead body of the two deceased, Dr. R. P. Misra (P.W. 5), who conducted post-mortem, head constable Kshetrapal Singh (P.W. 6), who prepared chik report and G.D. report, Chatar Singh (P.W. 7) witness of recovery of underwear of the Appellant, B. R. Arya Investigating Officer (P.W. 8), constable Om Prakash (P.W. 9) who escorted the dead body and constable Sudhi Kumar (P.W. 10). The Appellant did not adduce any evidence in his defence.

The learned Sessions Judge on considering the evidence of prosecution held that the prosecution has successfully proved the guilt of the Appellant for the offences punishable under Sections 302 and 376, I.P.C. With these findings he convicted and sentenced the Appellant as mentioned above.

Aggrieved with his above conviction and sentence the Appellant has preferred this appeal from Jail.

The Appellant was served with the notice of appeal through Superintendent, Central Jail, Agra, but he did not engage any counsel and, therefore, we appointed Sri Samit Gopal, advocate as amicus curiae to argue the appeal on behalf of the Appellant.

We have heard Sri Samit Gopal learned amicus curiae and Sri R. K. Singh, learned A.G.A. for Respondent and have perused the evidence on record.

The Appellant had not disputed the factum of rape on Km. Kaushal and death of two deceased Km. Nasreen and Km. Kaushal. Dr. R. P. Misra who conducted autopsy on the dead body of the two deceased found following facts:

Post-mortem of Km. Nasreen aged about 9 years

There were following ante-mortem injuries on the person of deceased:

(1) Red colour bruises in an area of 3 cm. x 2 cm. on right cheek and 2.5 cm. x 2 cm. Red colour bruise present on cheek. Mucosa of both cheeks red and congested and showed bite at places. Tongue was congested and swollen and teeth bite present on both the sides of tongue. Abrasion in an area of 12 cm. x 0.5 cm. on nose present. Septum of nose fractured (flate nose), red colour bruises in an area of 2.5 cm. x 2 cm. on right angle of jaw present. Vaginal smear was prepared. No external injury mark present on genitals. Hymen not intact.

Internal examination showed that stomach contained 100 ounce semi-digested food. Small intestine was full with digested food and gases. Large intestine was full with faecal matters and gases. Cause of death was smothering leading to suffocation.

Post-mortem of Km. Kaushal aged about 12 years

The doctor found following ante-mortem injuries on her person:

(1) Bruises reddish in colour present on right side neck upper part in an area 2 cm. x 1 cm.

(2) Bruises present on left side of neck 2 cm. x 1 cm. reddish in colour.

(3) Bruises present around the thyroid cartridge in an area of 3 cm. x 1 cm.

(4) Bruises present on nose 1 cm. x 0.5 cm.

(5) Bruises present on both angle of jaw.

Mucosa of cheek congested and bitten up by teeth at places. Tongue was congested and bite present on both the sides. On opening of neck region, echymosis present around the neck region and trachea was seen congested and frothy. No fracture of nose bone present.

Genitals labia majora was bruised, bleeding present from around the genitals. Labia minora was torn. Hymen was ruptured. Vaginal smear slide was prepared.

Internal examination showed that larynx and trachea were congested and bronchi was frothy. The stomach contained 100 gms. semi-digested food. Small intestine was full with digested food and gases. Large intestine was full with faecal matters and gases.

Cause of death was smothering due to suffocation.

The above medical evidence has not been challenged. The above medical evidence established that rape was committed on Km. Kaushal and she died due to suffocation. Factum of rape on Km. Kaushal is also established from the report of Joint Director Forensic Science Laboratory (Ext. Ka-27) which shows that the salwar of Km. Kaushal (item No. 3) contained spermatozoa. Underwear of Appellant was also taken into possession at the police station and this underwear (item No. 2) also contained spermatozoa. No doubt there were no sign of rape on the person of Km. Nasreen but there were injuries on her nose and her cause of death was smothering leading to suffocation. As such the prosecution has established that Km. Kaushal was subjected to rape and thereafter was murdered and Km. Nasreen was also murdered.

Before adverting to the points raised by learned amicus curiae, we would like to give gist of evidence of ocular witnesses.

Mange Ram (P.W. 1) stated that Km. Nasreen aged about 8 years was daughter of Hakimuddin of his village and Km. Kaushal aged about 12 years was his daughter. On the evening of 26.8.1997, at about 5.00 p.m. Km. Nasreen and his daughter had gone to attend call of nature in the field of Jai Karan. After some time, Smt. Bala wife of Suresh came to the village crying and told that she heard cries of children from the field of Jai Karan. Getting the above information he along with Billoo (P.W. 2), Karan Pal and Dhan Pal and other person of the village came to the sugarcane fields of Jai Karan and surrounded it from all sides. He along with Billoo (P.W. 2) and Karan Pal entered into sugarcane field from eastern side and saw that the Appellant had killed Km. Nasreen and was killing Km. Kaushal after committing rape on her. The salwar of Km. Kaushal was lying below her knees and blood was coming out from her private part. He and other witnesses apprehended the Appellant on the spot and Charan Singh (P.W. 3) removed clothe from the neck of Km. Nasreen and Kaushal. By that time both the girls had died. He prepared report of the occurrence and came to the police station with the Appellant where he lodged report.

Billoo (P.W. 2) stated that he was knowing the Appellant and the daughters of Hakimuddin and Mange Ram (P.W. 1). On 26.8.1997 at about 5.00 p.m. he along with Mange Ram (P.W. 1), Dhan Pal and Karan Pal was sitting in the gher of Gajraj. Smt. Bala wife of Suresh came from eastern side crying and told that she had heard cries of children in the field of Jai Karan. She also told that cry was coming from eastern side of field. On above information he along with Mange Ram (P.W. 1), Dhan Pal and Karan Pal entered into field of Jai Karan and saw that Km. Nasreen was lying dead and the Appellant was pulling the neck of Km. Kaushal with ''chunni''. The salwar of Km. Kaushal was lying below her knees and blood was coming out from her private part. There were laceration marks on the face of Km. Nasreen and blue marks on her neck. He and other witnesses apprehended the Appellant. Charan Singh (P.W. 3) removed the clothe from neck of girls. The Appellant was brought to the village where Mange Ram (P.W. 1) prepared report and thereafter they took the Appellant to P.S. Daurala where Mange Ram lodged report.

Charan Singh (P.W. 3) stated that on 26.8.1997, at about 5.30 p.m. he was present in his house. Smt. Bala wife of Suresh came to village crying and told that she had heard cries of children in the sugarcane field of Jai Karan. He went towards sugarcane field of Jai Karan and saw that Mange Ram (P.W. 1), Billoo (P.W. 2), Dhan Pal, Karan Pal and others had caught hold Appellant Munesh and were beating him. Km. Nasreen and Km. Kaushal were lying there. Chunni (clothe) was tied around their necks. Salwar of Km. Kaushal was lying below her knees and blood was coming out from her private part. He removed clothe from neck of Km. Nasreen and she was dead. The Appellant was brought to gher of Balak Ram from where he was taken to police station and Mange Ram (P.W. 1) lodged report at the police station.

This was the gist of eye-witness account.

We have gone through the cross-examination of the above witnesses. No direct enmity has been suggested to them. It was suggested that the Appellant was having enmity with one Onkar Singh who was an advocate and he was falsely implicated on the instigation of Onkar Singh as he is the scribe of report (Ext. Ka-1) and he had also been engaged as a counsel by the complainant. The above witnesses have explained their presence on the spot. All the above three witnesses categorically stated that they were informed by Smt. Bala wife of Suresh of their village that she had heard cries of children from sugarcane field of Jai Karan Singh and on it the above witnesses and the other villagers went to the said field and saw the occurrence. No doubt Smt. Bala was not examined, but there is categorical evidence of above three eye-witnesses to prove that they were informed by Smt. Bala. Knowing the fact that children were crying in the field of Jai Karan Singh. It was but natural for the above witnesses and the villagers to rush to the spot to know as what was happening there. Therefore, the presence of the above witnesses is natural and probable.

The occurrence had taken place in broad day light at 5.00 p.m. and, therefore, the witnesses were in a position to see the occurrence. The Appellant was apprehended on the spot and was brought to the police station which was proved by head constable Om Prakash (P.W. 9) as well as Investigating Officer Sri B. R. Arya (P.W. 8). Since the witnesses has no direct enmity, ill-will or grudge against the Appellant, they were not expected to depose falsely simply on the pressure of Onkar Singh.

The learned amicus curiae contended that the Appellant was apprehended from his house and was falsely implicated in this case, but having gone through the evidence of above ocular witnesses we find no force in the above contention.

The learned amicus curiae further contended that the arrest of the Appellant on the spot appears doubtful as he was apprehended at a distance of 20 paces inside the field and in case the prosecution witnesses had entered into the field the Appellant would have noticed their presence and would have run away. The evidence on record shows that the prosecution witnesses and other villagers who were sufficient in number surrounded the field from all sides and the villagers were so much in number not to provide any opportunity of fleeing away to the Appellant. As such there appears no doubt in the manner of arrest of the Appellant on the spot.

It was further contended by learned amicus curiae that the manner of occurrence shows that it was not act of only one person as in case Km. Nasreen was murdered first, Km. Kaushal would have got occasion to run away. Having gone through the evidence on record, we also find no force in the above contention. The post-mortem report of Km. Nasreen shows that there was red colour bruises in an area of 3 cm. x 2 cm. on right cheek and 2.5 cm. x 2 cm. red colour bruise on left cheek and septum of nose was fractured. Teeth bite was present on both side on tongue. This shows that when Km. Nasreen tried to raise alarm her mouth including nose was pressed with force and in this connection, she would have become unconscious. This injury could be caused in such succession that Km. Kaushal would have got no occasion to run away and, therefore, it cannot be said the act of causing injuries on Km. Nasreen and Km. Kaushal and rape on Km. Kaushal would have been done by two separate persons and one person alone was sufficient for it.

As mentioned above, there was no ground for ocular witnesses Mange Ram (P.W. 1), Billoo (P.W. 2) and Charan Singh (P.W. 3) to depose falsely against the Appellant. The arrest of the Appellant on the spot, which is supported by evidence of head constable Kshetrapal Singh (P.W. 6) and medical evidence corroborate the ocular testimony of above witness. The medical evidence also supported the factum of rape on Km. Kaushal. Thus, from above evidence on record, the prosecution has established the guilt of the Appellant for the offences punishable under Sections 302 and 376, I.P.C. Therefore, we found no force in the appeal.

The appeal is accordingly dismissed. Conviction and sentence of the Appellant under Sections 302 and 376, I.P.C. recorded by the trial court are confirmed.

The Appellant is in jail. He shall be kept there to serve out the remaining sentence.

Copy of the order be sent to the C.J.M., Meerut and Superintendent, Central Jail, Bareilly, for information and necessary action.