Saeeduddin vs State

Amar Saran, J.—This criminal jail appeal arises from a judgment andorder dated 10.12.2003, passed by the Additional Sessions Judge/FastTrack Court No. 1, Hamirpur convicting and sentencing the AppellantSaeeduddin to imprisonment for life and a fine of Rs. 10,000 underSection 302, I.P.C., in case of default, the Appellant was directed tofurther undergo two years simple imprisonment; ten years rigorousimprisonment and a fine of Rs. 5,000 u/s 376, I.P.C. and indefault the Appellant will have to further undergo one year simpleimprisonment and five years rigorous imprisonment and a fine of Rs. 3,000 u/s 201, I.P.C. and in default, one year simpleimprisonment. However, all the sentences were directed to runconcurrently.

Initially there were two accused persons, namely the AppellantSaeeduddin and one Deepak alias Deepu, who were nominated in the F.I.R.dated 20.1.2003 lodged at 12.30 p.m. at police station Kurara, districtHamirpur by Ram Khilawan, P.W. 1. However, the other accused Deepakalias Deepu was declared juvenile and his case has been separated andsent to the juvenile court.

As the earlier amicus curiae, appointed in this case Shri SureshPandey was not appearing, when the case was called out for hearing,Shri Syed Imran Ibrahim was appointed amicus curiae on 10.1.2011 and has been handed over the paper book and we have heard him on 11.1.2011.

In brief, the facts of the case are that Ram Khilawan, P.W. 1lodged a report on 20.1.2003 at 12.30 p.m. mentioning that his daughterUrmila, aged about 12 years had gone on the previous day, i.e., 19.1.2003 at about 9.00 a.m. to the orchard of Lala Ram Singh forcollecting guavas and tomatoes. On that day, the watchmen of the said orchard, the Appellant Saeeduddin and Deepak alias Deepu had toldUrmila that she should come the next day with some "daal" and theywould give her guavas and tomatoes. Urmila left for the orchard, havingtaken ''daal'' from her sister Saraswati, P.W. 3. When Urmila did notreturn back for a long time, then the informant and Ors. went outlooking for her. In the morning of 20.1.2003 at about 11.30 a.m. herbody was discovered. On 19.1.2003 Tejwa, P.W. 3 and one Gore Lal, whohad come for marketing to Kurara saw Urmila at the orchard alongwiththe Appellant and the co-accused Deepak. In the evening the informant''sfather Kuddhi Lal, P.W. 9 had seen the Appellant and co-accused takingout a loaded sack from the room in the orchard and dragging it towardsthe sugarcane field. He then named the Appellant of having committedthe crime and having hidden the corpse in a sack in the sugarcanefield.

Apart from the aforesaid four witnesses of facts, P.W. 1, RamKhilawan, P.W. 2, Saraswati, P.W. 3, Tejwa, P.W. 9 Kuddhi Lal, Dr. PremKumar Gupta, P.W. 4, who conducted the post-mortem examination on thebody of the deceased at 2.30 p.m. on 21.1.2003, Dr. Sundar Lal Sachan, P.W. 5, S.O. Aditya Kumar Dwivedi, P.W. 6, the Investigating Officer, P.W. 7, Constable Balbir Singh, P.W. 8, Rajesh Kumar have been examined as the formal witnesses in this case.

The post-mortem examination on the body of the deceased Urmiladisclosed the following ante-mortem injuries:

Incised wound 4 cm. x 1 cm. x bone deep on the left side skull, 3 cm. above the left ear.

Incised wound 7 cm. x 3 cm. x brain deep on right side skull 7 cm. above right ear. The membranes of the brain exposed and bone underlying the wound is absent.

Incised wound 7 cm. x 2.5 cm. x brain deep present on the frontal region of the skull 9 cm. above the root of nose. The bone underlying the wound is absent and brain is exposed.

Incised wound 7 cm. x 1 cm. brain deep on the right side skull 5 cm. above the right ear. Brain exposed and the underlying bone is absent.

Incised wound 8 cm. x 1.5 cm. x brain deep on the right side skull 2 cm. above the right ear brain exposed and underlying bone is missing.

Incised wound 4 cm. x 1 cm. x brain deep present on the occipital region of the skull 9 cm. behind the right ear.

Punctured wound 0.5 cm. x 0.4 cm. x 1.5 cm. deep present on the right side neck 5 cm. below right ear margins of the wound clean cut.

Punctured wound 2 cm. x 1 cm. x 4 cm. deep present on the right side front of the neck 2.5 cm. internal to the injury No. (7). Margins of the wounds are sharp cut.

Punctured wound 1.5 cm. x 0.5 cm. x 4 cm. deep present on the left side front of the neck 5 cm. below the left ear. The margins of the wound clean cut.

Punctured wound 1 cm. x 0.5 cm. x 3 cm. present on the left side neck 1.5 cm. away from the injury No. (9). Margins of the wound are sharp.

Punctured wound 0.5 cm. x 0.5 cm. x 3 cm. deep on the left side upper part of the neck 2.5 cm. below the left ear. The margins of the wound are sharp cut.

Punctured wound 1.5 cm. x 0.5 cm. x 5 cm. deep on the middle of the chest 10 cm. above the umbilicus. The margin of the wound clean cut.

Incised wound 0.5 cm. x 0.5 cm. x skin deep on the left upper axillary area 7 cm. above and outer to the left nipple.

Incised wound 0.5 cm. x 0.5 cm. x muscles deep on the palmer surface of the root of the right thumb, margins are clean cut.

Multiple contusion marks of various sizes and shapes present on the inner surface of the left thigh in an area of 24 cm. x 16 cm.

The size of large contusion 8 cm. x 2.5 cm. and small contusion 3 cm. x 1.5 cm. Reddish in colour.

In his statement u/s 313, Code of Criminal Procedure, the Appellant denied the case against him and stated that he had been implicated on afalse charge. The witnesses are of one family and that they havedeposed at the instance of the police. He also produced two defence witnesses, D.W. 1 Dr. Nanku Ram and D.W. 2 Dr. Shiv Shastri, who provedthat he received the injuries on 21.1.2003, (Ext. Kha-1) and that the Appellant was not examined in jail.

P.W. 1 Ram Khilawan has affirmed his first information report inhis evidence in Court. He has further stated that Urmila left home at 9.00 a.m. with some "daal" to go to the orchard and when she did notreturn home on the same day, then they had gone to the orchard lookingfor her. The Appellant and co-accused Deepak were not present there.Then he learnt from Tejwa and Gore Lal that she was present in theorchard alongwith the accused persons. On the next day, at about 11.30 a.m. in the sugarcane field of Lala Ram Singh, her dead body was found in a sack. On the day of incident, his father Kuddhi Lal, P.W. 9 had seen Saeeduddin carrying a bag. He reiterated the rest of the allegations mentioned in the F.I.R. that the Appellant had committed rape on Urmila and then assaulted her with some sharp edged weapon.

P.W. 2, Saraswati, who was the elder sister of Urmila, deposedthat the Appellant and co-accused used to keep watch over Lala RamSingh''s orchard. Urmila had told her that Saeeduddin and Deepak alias Deepu had asked her for some "daal". Urmila left her home at 9.00 a.m. and never returned. She had told her family members that Urmila hadgone to the orchard. The family members had searched, but neitherUrmila nor the Appellant or co-accused Deepak were found. The next day,Urmila''s corpse was found in a sack in the sugarcane field of Lala RamSingh. Tejwa and Gore Lal had seen Urmila in the orchard withSaeeduddin and Deepak alias Deepu.

P.W. 3 Tejwa has stated that on the date of incident he had cometo Kurara market alongwith Gore Lal. There were some financialtransactions between him and Devendra, son of Lala Ram and he had togive money to Devendra, hence he had visited Lala Ram''s orchard. He sawSaeeduddin, Deepak and Urmila breaking guavas under the guava trees.When he enquired from Saeeduddin about the whereabouts of Devendra, hewas informed that he was not there, and he would either be at home orat the bazaar. Then this witness and Gore Lal left for the market. The next day, he learnt that Urmila had been raped and murdered in thatorchard and he was convinced that Saeeduddin and Deepak had committedthe crime.

P.W. 8, Rajesh Kumar has deposed that he was the witness ofinquest on the corpse of Urmila, which was held on 20.1.2003. He alsostated that his clinic was at the tri-crossing and that Saeeduddin andDeepak confessed their guilt before the police. The gupti, axe and condom on which some obscene photographs were printed were gotdiscovered by the Appellant and the co-accused from the sugarcane fieldof Lala Ram Singh. He had gone alongwith the police party, and VijaySingh for having the discoveries made. Both the accused Saeeduddin andDeepak, walked ahead and from a pile of grass on the northern medh ofthe sugarcane field, they got recovered an axe, gupti and empty packetof condoms on which some obscene photographs were printed wererecovered at about 8-9 a.m., regarding which the recovery memo wasprepared at the spot.

P.W. 9 Kuddhi Lal, who was the grand-father of the deceased haddeposed that Urmila had gone to the orchard of Lala Ram Singh at about 9.00 a.m. carrying some "daal" with her, which she had taken from hermother and sister Saraswati. When Urmila had not returned from theorchard, then they searched for her in the orchard, but she was notfound and the accused persons were also not there. The next day at 11.30 a.m. the corpse was found in the sugarcane field of Lala RamSingh. Tejwa and Gore Lal had come to Kurara on the date of incidentand they had seen Urmila in the orchard. In the evening when he wasgoing to ease himself, he had seen Saeeduddin and Deepak alias Deeputaking out a sackfrom the room in the orchard and dragging it towards the sugarcanefield. At that time, he thought that either it was some fertilizer orcow dung. When he found the dead body in the sack, then he suspectedthat the Appellants had been shifting the dead body in the sack on theprevious evening.

P.W. 7 Constable Balbir Singh prepared the check report and G.D.on 20.1.2003 and registered the case at report No. 17 at 12.30 p.m. inthe G.D.

P.W. 6, S.O.A. K. Dwivedi, was the Investigating Officer, whocommenced the investigation in this case. He also recorded thestatement of the informant Ram Khilawan and prepared inquest and otherrelevant papers and sent the corpse for autopsy. He investigated thespot, prepared site plan and arrested the accused persons at 8.55 p.m.on the same night. The accused confessed to their guilt and gotdiscovered the gupti, axe and some wrappers of condom, from thesugarcane field of Lala Ram Singh. On the pointing out of the accused,he got the blood stained axe, bloodstained gupti and wrappers ofcondoms, which had obscene photographs recovered at 8.45 a.m. Recoverymemo had been prepared at the spot and the recovered items were sealedand sent alongwith the blood stained and plain mud and the clothes ofthe deceased to the forensic laboratory. The recovery memo of the placewhere the said items were recovered was also prepared. After recordingthe statements of the witnesses and completing the investigation, theInvestigating Officer submitted the charge-sheet.

It was argued by the Learned amicus curiae that the chain of circumstances in this case are not complete and it would not be safe toconvict the Appellants on the evidence collected. The evidence of P.W.3 Tejwa, who claimed to have last seen the deceased Urmila with the Appellant Saeeduddin and Deepak alias Deepu breaking guavas under theguava trees, cannot be relied on because he does not mention any timewhen he saw the deceased and the accused persons together in thegarden. P.W. 9 Kuddhi Lal was the grand-father of the deceased, whoclaimed to have seen the accused Saeeduddin and Deepak taking out thesack from a room in the orchard and carrying it to the sugarcane fieldand from the said sack the corpse of the deceased was discovered. Hisevidence was challenged on the ground that he admits that his eye sight is poor and he cannot see beyond 45 paces. As per the site plan the distance from which this witness is said to have seen the accused dragging the sack was at least 90 metres.

It was also submitted that according to P.W. 1 Ram Khilawan,Tejwa had come to the police station and the report was lodged at 7 or8 p.m., but according to P.W. 3 Tejwa, he had come to Kurara at about11 or 11.30 a.m. In his statement u/s 161, Code of Criminal Procedure he statedthat he came two days after he had seen the incident, whereas in Courthe stated that he came the next day. Two witnesses of last seen werementioned in the F.I.R., viz. Tejwa and Gore Lal, but only Tejwa hasbeen examined by the prosecution, and Gore Lal has not been examined.As the place where the dead body and other incriminating items wererecovered was accessible to all, hence the recovery from the said placewas not reliable.

Learned Additional Government Advocate, however, controverted thecontentions of the Learned Counsel for the Appellants and submittedthat it had wrongly been asserted that Tejwa did not mention the timewhen he came from his village Tikapur to Kurara market where he had theopportunity to see the deceased alongwith the Appellant and the otheraccused. He has specifically mentioned in his evidence that he had cometo the orchard at about 10 or 10.30 a.m. and he was there for about five minutes.

It was further submitted by the Learned A.G.A. that simplybecause P.W. 9 Kuddhi Lal''s eye sight was not very good, there was nogood reason for him not to see the accused persons from the point "B"where he was located because there were No. obstructions to the point"A", which was the room in the hut in the orchard from where theaccused was dragging the sack to point "C" where the dead body waseventually found.

It was further submitted that the minor discrepancies between the161, Code of Criminal Procedure statement and the evidence as to when the witness Tejwareturned to the village after the incident and other minordiscrepancies on which nothing turns, will not significantly affect theprosecution case. As the dead body was found in the orchard and theincriminating materials, viz. bloodstained gupti, axe, wrappers ofcondoms with obscene photographs, which were recovered at the instanceof the Appellant as well as the corpse was found in an enclosure, wherethe hut, orchard and the sugarcane field etc. were located and it wasthe duty of the Appellant and the co-accused Deepak alias Deepu to keepa watch over the said field. Moreover, weapons and wrappers of condomwere concealed under the babool sticks from where they were gotdiscovered by the Appellant and co-accused Deepak alias Deepu. Bloodwas also found in the kothri, where the crime is said to have been committed.

Having considered the submissions of the Learned Counsel for theparties, we are of the view that the prosecution has successfullyestablished its case against the Appellant. Absolutely, No. reasons weresuggested why P.W. 3, Tejwa, P.W. 9, Kuddhi Lal or P.W. 1, RamKhilawan, the father of the deceased would falsely implicate the Appellant and the co-accused Deepak alias Deepu, against whom theynursed No. enmity and spare the real offenders.

As pointed out by the Learned A.G.A., 10.30 a.m. has beenmentioned as the time in the evidence, when P.W. 3 Tejwa came to theorchard and saw the deceased alongwith the accused persons breakingguavas. So far as P.W. 9, Kuddhi Lal was concerned, it was pointed outthat there were No. obstructions from the point where he was located till the kothari from where the accused persons were dragging out thesack and carrying it to the sugarcane field where it was found the nextday and there was No. reason why he would invent such a history. Being aperson belonging to the same village, he would have little difficultyin identifying the accused persons. Moreover, P.W. 9, Kuddhi Lal''sevidence is not the only piece of evidence for connecting the Appellantand co-accused Deepak with this offence.

There is also a highly significant piece of evidence in thiscase, viz. disclosure of the deceased Urmila to her sister Saraswati that she had met the two accused persons one day earlier and they hadasked her to come to the orchard the next day with some "daal" and theywould give her some guavas, tomatoes and peas in return. These factswere corroborated by the evidence of P.W. 2, Saraswati, sister of thedeceased, who also stated that the deceased had left her home at 9.00 a.m. after carrying some "daal", but she never returned thereafter. Inthe night a search was made in the orchard for the deceased, butneither the deceased nor the Appellant and co-accused Deepak aliasDeepu were found.

The next morning the corpse of the deceased was found in the sugarcane field of Lala Ram Singh. The orchard was located in the same enclosure.

Learned Additional Government Advocate also drew our attention to the site plan which shows that tomatoes, guavas and peas were grown inthe said enclosure. The disclosure of Urmila to her sister that she had been invited by the accused persons to come to the orchard with some"daal" on the date of incident, was a circumstance in the transaction,which provided an opportunity to the accused persons to commit hermurder after raping her.

In this connection, it would be useful to extract Section 32(1) of the Evidence Act, which reads as follows:

32 (1) When it relates to cause of death.--When the statement ismade by a person as to the cause of his death, or as to any of thecircumstances of the transaction which resulted in his death, incases in which the cause of that person''s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

A reading of the aforesaid provisions shows that under the saidprovision not only the statement made by the person as to the cause ofhis death, but even the statement of the person as to any of thecircumstances of the transaction, which resulted in his death arerelevant. In a case in which the cause of death of the person becomesrelevant, it is not material whether the person, who made the statementwas under expectation of death at the time when he made the same.

In the Privy Council decision in the case of AIR 1939 47 (Privy Council) where the dead body of the deceasedman was found in a steel trunk in a third class compartment on23.3.1937. In that case three days earlier on 20.3.1937 the deceasedhad received a letter, the contents of which was not actually proved,but which showed that he was invited to visit Berhampur. The deceasedhad told his wife that as the Appellant''s wife had written to him andtold him to go and meet the Appellant to receive his dues. Thestatement of the widow that on 20.2.1937 the deceased had made the disclosure to her that he was going to Berhampur as the accused''s wifehad written to him was objected to by the defence as being inadmissible. The Privy Council examined the decisions of the Indian Courts, some of which had suggested that the statement should be made after the transaction had taken place or when the person making it was near his death and that the circumstances could only include the acts done when and where the death was caused. The Privy Council repelled those contentions and stated that the natural meaning of words in Section 32(1) of the Evidence Act admitted to No. such limitation. It was observed thus in paragraph 8 by the Privy Council:

...The statement may be made before the cause of death hasarisen, or before the deceased has any reason to anticipate beingkilled. The circumstances must be circumstances of the transaction:general expressions indicating fear or suspicion whether of aparticular individual or otherwise and not directly related to theoccasion of the death will not be admissible. But statements made bythe deceased that he was proceeding to the spot where he was in factkilled, or as to his reasons for so proceeding, or that he was goingto meet a particular person, or that he had been invited by suchperson to meet him would each of them be circumstances of thetransaction, and would be so whether the person was unknown, or wasnot the person accused. Such a statement might indeed be exculpatoryof the person accused. "Circumstances of the transaction" is aphrase No. doubt that conveys some limitations. It is not as broad asthe analogous use in "circumstantial evidence" which includesevidence of all relevant facts. It is on the other hand narrowerthan "res gestae." Circumstances must have some proximate relationto the actual occurrence : though, as for instance, in a case ofprolonged poisoning they may be related to dates at a considerabledistance from the date of the actual fatal dose. It will be observedthat "the circumstances" are of the transaction which resulted inthe death of the declarant. It is not necessary that there should bea known transaction other than that the death of the declarant hasultimately been caused, for the condition of the admissibility ofthe evidence is that "the cause of (the declarent''s) death comesinto question." In the present case, the cause of the deceased''sdeath comes into question. The transaction is one in which thedeceased was murdered on 21st March or 22nd March : and his body wasfound in a trunk proved to be bought on behalf of the accused. Thestatement made by the deceased on 20th or 21st March that he wassetting out to the place where the accused lived, and to meet aperson, the wife of the accused, who lived in the accused''s house,appears clearly to be a statement as to some of the circumstances ofthe transaction which resulted in his death. The statement wasrightly admitted....

(Italicised by us)

No. importance can be given to the other contentions raised by theLearned Counsel for the Appellant about whether the witness P.W. 3Tejwa had again come to Kurara two days after the incident or one dayafter the incident and the contradictions in his 161, Code of Criminal Procedurestatement and evidence in Court because these are minor discrepancies.

Also non-production of Gore Lal is not fatal for the prosecutionbecause in view of Section 134 of the Evidence Act No. particular numberof witnesses are required for proving a particular fact, and thatevidence must be weighed and not counted, and thus there is No. need tomultiply the witnesses for proving the same fact. This issue has beenfelicitously examined by the Apex Court in paragraphs 16 and 17 in Amar Singh Vs. Balwinder Singh and Others,

Another reason given by the High Court for acquitting theaccused-Respondents is that two other injured witnesses, namely,Kashmira Singh and Pritam Singh and one Ramesh, whose name wasmentioned in the F.I.R., were not examined. Shri Ashwani Kumar,Learned senior Counsel appearing for the accused-Respondents hasvehemently urged that the purpose of a criminal trial is not to support the prosecution theory but to investigate the offence and todetermine the guilt or innocence of the accused and the duty of thepublic prosecutor is to represent the administration of justice andtherefore the testimony of all the available eye-witnesses should bebefore the Court and in support of this contention he has placedreliance on State of U.P. and Another Vs. Jaggo alias Jagdish and Others, It is true that the witnesses essential tothe unfolding of the narrative on which the prosecution is basedmust be called by the prosecution, whether effect of their testimonyis for or against the case of the prosecution. However, that doesnot mean that everyone who has witnessed the occurrence, whatevertheir number be, must be examined as a witness. The prosecution inthe present case had examined three eye-witnesses who were allinjured witnesses. The mere fact that Kashmira Singh and PritamSingh were not examined cannot lead to an inference that theprosecution case was not correct. The aforesaid two witnesses hadbeen given up by the prosecution on the ground that they had beenwon over by the accused. These two persons are not family members ofthe first informant Amar Singh and it is quite likely that they didnot want to get involved in any dispute between the first informantand his sons on the one hand and the accused on the other hand asthey had No. interest in the land belonging to Jangir Dass Sadh whichwas being earlier cultivated by Gurdial Singh, father of A-1 and A-2but had been taken an year earlier by the first informant AmarSingh. The contention raised by Learned Counsel fails to take noticeof Section 134 of the Evidence Act which provides that No. particularnumber of witnesses shall in any case be required for the proof ofany fact. A similar contention has been repelled by this Court in avery illustrating judgment in Vadivelu Thevar Vs. The State of Madras, and it will be useful to take note of para 11 ofthe report, which reads as under:

...The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognised in Section 134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished....

The above quoted principle was laid reiterated in Ramratan and Others Vs. The State of Rajasthan,

The prosecution having examined three eye-witnesses, in our opinion, there was No. necessity of multiplying the number of witnesses and No. adverse inference could be drawn against the prosecution merely on the ground that Kashmira Singh or Pritam Singh were not examined. If the incident had not taken place as suggested by the prosecution but had happened in a different manner, there was No. impediment in the way of the accused-Respondents to examine the aforesaid persons as defence witnesses, but they did not chose to do so.

No reason has been suggested why the witnesses have falselydeposed against the accused persons and if any one has committed thecrime, why the evidence would point only to the complicity of theaccused persons in this case.

There can be No. denial of the fact that the place where theincident took place was in the exclusive control of the Appellant, whowas the watchman of the same. The recovery of bloodstained gupti, axe and condom with obscene photographs at the instance of the Appellantfrom under babool sticks in the said enclosure are strong incriminatingpieces of evidence to connect the accused with this offence.

In view of what has been indicated hereinabove, we find noillegality in the order of Sessions Judge convicting and sentencing the Appellant as above. The order of the Sessions Judge is upheld. Theappeal accordingly fails and is dismissed.