Satyendra Yadav & Anr. vs State of M.P.

(1) The appellants have preferred this appeal under

Section 374 (2) of the Cr.P.C against the judgment and

order dated 15.12.2003 passed by the Sessions Judge

Khandwa in Sessions Trial No.84 of 2002, whereby and whereunder they have been convicted under Section 376

(2) (g) and 302 of the I.P.C and sentenced to suffer RI for

10 years in the former count and RI for life in the

latter count "each" with the direction that the sentences

awarded in the aforesaid Sections shall run concurrently.

(2). The prosecution case as unfolded at the trial, in nut-

shell, is as under :

(1). On the night of 22.10.2001 at about 02.25

hours Nirmala Bai (PW8) lodged an oral report at Police

outpost Padam Nagar of Police Station Moghat Road of

Khandawa city stating that her daughter Jyoti (since

deceased) aged about seven years has gone missing since

the night of 21.10.2001 from Jabran colony (for short "the

colony"), where she resides with her family members.

Constable Abdul Hafiz (PW11) recorded the missing person

report in Rojnamcha No.618, a true copy of which being

Ex.P/18A, with the descriptions of her physical appearance,

wearing clothes and articles. Upon the report, Missing

Persons Case No.13 of 2001 was registered at P.S Moghat

Road.

(2). On 22.10.2001 at about 7 AM, Manohar (PW9),

the Tau of deceased Jyoti, informed Sub Inspector

Harishankar (PW15), the In-charge of said Police outpost,

that the dead body of Jyoti with injuries on her person is

lying in an open plot which is by the side of the house of

one Chanda Bai in the Colony. Thereupon, Harishnakar recorded a Merg intimation Report under Section 174 Cr.P.C

(not exhibited), which was later registered as Merg Case

No.43 of 2001. Thereafter, he proceeded to the said place.

There, in the presence of Ravindra (PW12), Vasant (PW14),

Saligram (PW20) and other witnesses he prepared inquest

report Ex.P/19 of the dead body of Jyoti, drew site map

Ex.P/21 at the instance of Manohar, collected samples of

blood smeared soil and simple soil vide memo Ex.P/14,

seized one frock lying near the dead body of Jyoti and a

small tufts of hair on her person vide seizure memo

Ex.P/15. Thereafter, he sent the dead body of deceased

Jyoti for postmortem examination. According to P.M report

Ex.P/4, deceased Jyoti died of asphyxia due to smothering

and she was subjected to rape before her death. On the

basis of the P.M report, on 22.10.2001 Harishankar lodged

FIR being Ex.P/22 at police outpost Padam Nagar and

registered a crime against an unknown offender under

Section 376 and 302 IPC. Later, on the same day the FIR

was registered as Crime No.335 of 2001 at P.S Moghat

Road by A.S.I Prabal Singh (PW18) vide Ex.P/23.

(3). Inspector J.N.Deewan (PW21), the SHO of P.S

Moghat Road, took up the investigation. On 22.10.2001,

upon inputs, he searched one room kuccha rented house of

appellant Vinod situated in the Colony in the presence of

Raju (PW7) and Saligram (PW20), wherefrom he seized one

child bracelet made of steel, blood-stained articles such as one blanket, one home made mattress, one shirt, one pants

and two pillows, upon one of which there was whitish

substance and upon another pillow there were a few shreds

of long hair, some human faeces with soil and one

underwear being dried outside of his house vide seizure

memos Exs.P/11 and P/12. Thereafter, he arrested him vide

arrest memo Ex.P/6. He also interrogated him in the

presence of said witnesses and prepared a disclosure

statement Ex.P/9 in which he stated that deceased Jyoti''s

underwear was hidden by appellant Deepak. Whereupon,

he took appellant Deepak in custody and interrogated him.

Upon his disclosure statement Ex.P/8, he seized one

underwear of deceased Jyoti in a heap of garbage lying in

Padamnagar an adjoining colony vide seizure memo

Ex.P/10. Thereafter, he arrested him vide arrest memo

Ex.P/7 and also seized his blood stained pants vide seizure

memo Ex.P/13 from his house situated in the colony. He

sent both the appellants for medico-legal examinations. Dr.

Narendra Kumar Jain (PW5) medically examined them and

opined that both the appellants are physically capable of

doing sexual intercourse and gave reports Ex.P/2 and P/3.

On various dates, he recorded the case diary statements of

the witnesses who were conversant with the facts of the

case. He sent all the articles collected in the course of

investigation of the case for forensic examinations to FSL

Sagar, which has sent reports Ex.P/26 and Ex.P/27.

(4). On 3.11.2001, Smt. Usha Singh (PW4) held

identification parade of articles namely one child bracelet

and one underwear. In the course of identification, Nirmala

Bai and his daughter Chhaya (PW2) identified the said

articles as those of deceased Jyoti. Usha Singh prepared

identification memo Ex.P/1.

(5). Upon completion of the investigation, the police

charge-sheeted both the appellants for their prosecution

under Sections 363, 376, 302 and 201 IPC.

(3). Learned Sessions Judge framed charges against both

the appellants under Sections 376 (2) (g) and 302 in

alternative 302 r.w.34 IPC . They denied the charges and

prayed for trial. Thereupon, they were put to trial. In their

statements under Section 313 Cr.P.C, they denied all the

incriminating evidence and circumstances appearing against

them in the prosecution case. They took the defence

simplicitor that they were falsely implicated in the case.

However, they did not adduce any oral or documentary

evidence to prove their defence.

(4). Learned Sessions Judge, upon analyzing and

appreciating the evidence on record, has held that the

prosecution has proved following circumstances beyond

reasonable doubt. On the basis thereof, learned Sessions

Judge convicted both the appellants under Sections 376 (2)

(g) and 302 r.w.34 IPC and sentenced them thereunder as

noted in para 1 of this judgment;

(1). Disappearance of deceased Jyoti in the night of

21.10.2001 and recovery of her dead body in the following

morning;

(2). Seizure of incriminating articles from the house

of appellant Vinod;

(3). Seizure of deceased Jyoti''s underwear at the

instance of appellant Deepak;

(4). Presence of stains of human blood and shreds

of human pubic hair on the articles seized from the

possession of appellants namely blanket, pillows,

underwear, pants and deceased Jyoti''s underwear and her

wearing frock as per FSL reports;

(5). Medical evidence regarding homicidal death of

deceased Jyoti, and before her death she was subjected to

forcible sexual intercourse;

(5). Learned counsel for the appellants submitted that the

investigating officer J.N.Deewan has cooked up

circumstantial evidence to implicate the appellants in the

case. Moreover, the circumstantial evidence as produced by

the prosecution in the course of trial is not sufficient to hold

the appellants guilty of the alleged offences. Upon these

submissions, he prayed that the impugned judgment is bad

in law and is liable to be set-aside.

(6). Learned Government Advocate justified the

correctness of impugned judgment.

(7). We have carefully considered the rival submissions made at the Bar and perused the entire material on record

and the impugned judgment.

(8). It is well settled in law that in a case which is

dependent wholly upon the circumstantial evidence, the

court before recording a conviction on the basis therefor

must firmly establish:-

(1). that the circumstances, from which the

inference of guilt is to be drawn, have been fully established

by unimpeachable evidence beyond a shadow of doubt;

(2). that the circumstances are of a determinative

tendency unerringly pointing towards the guilt of the

accused;

(3). that the circumstances, taken collectively, are

incapable of explanation on any reasonable hypothesis save

that of the guilt sought to be proved against him;

(4). that when an accused furnishes false answer as

regard to a proved circumstantial evidence in his

examination under Section 313 Cr.P.C, the court ought to

draw an adverse inference against him and such an

inference shall be additional circumstance to prove his guilt;

(5). that any infirmity or lacunae in the prosecution

case would not be cured by a plea of false defence taken by

accused;

(9). Now, we proceed to consider whether the

circumstantial evidence as stated in the impugned

judgment has been proved beyond reasonable doubt by the prosecution and whether the circumstantial evidence is of

such a nature that proves conclusively none other than the

appellants had committed the crime?

(10). Nirmala Devi (PW8) has stated in her evidence that

at the time of the crime nine days of Navdurga Festival was

going on in her colony and Garba dances were played by

the boys and girls at night. Her elder daughter Chhaya,

aged 12 years, and younger daughter deceased Jyoti, aged

7 years, took part in the Garba dances. The daughter of her

Jeth Manohar (PW9) dressed them up in her house which is

a few houses away from her own house in the colony. On

the fateful night, deceased Jyoti had worn a white frock, a

red underwear, a bracelet and a pair of anklets. Chhaya

came all alone after performing Garba dances. Thereupon,

she inquired from her about Jyoti. She told her that she

wore a Saree for playing Garba dances taking her frock off

and asked Jyoti to go the house to keep it. Thereupon, she

and her family members searched her but in vain. Later,

she went to police outpost Padam Nagar and lodged a

missing report of deceased Jyoti. In the following morning,

the residents of her colony told them that the deceased''s

dead body was lying in an open plot by the side of the

house of one Chanda Bai. Thereupon, they went to the

place and saw the deceased Jyoti''s dead body. They

noticed that blood had oozed out in a large quantity from

her vagina and nose. Thereupon, her Jeth Manohar went to the police outpost Padam Nagar and informed the police.

The aforesaid evidence of Nirmala Bai was fully

corroborated by the evidence of Chhaya (PW2) and

Manohar (PW9). Upon the perusal of their cross-

examinations, we find that aforesaid evidence has not been

challenged by the defence even obliquely. Thus, we hold

that it is proved beyond reasonable doubt that deceased

Jyoti disappeared in the intervening night on 21 st and 22nd

October, 2001 and her dead body was found in the morning

of 22.10.2001.

(11). I.O. J.N. Deewan (PW21) has testified that in the

course of investigation of the case, he got some inputs

upon which he took appellant Vinod in custody and got his

house unlocked by himself and searched his one room

rented house situated in the colony in the presence of

witnesses Raju and Saligram. In the course of search, he

found blood stained articles namely one mattress, one

pants and one shirt as also a small wisp of long hair on one

pillow and another pillow, whitish substance in which a few

long shreds of hair got stuck. Under a cot, he found one

child bracelet and some human faeces with soil and outside

of his house, one underwear being dried upon which he also

noticed blood stains. He seized aforesaid articles vide

seizure memos Ex.P/11 and P/12. Thereafter, he

interrogated appellant Vinod. He told him before the

aforesaid witnesses that appellant Deepak had hidden deceased Jyoti''s underwear in the heap of garbage lying in

the Padamnagar, an adjoining colony. Upon his

said information, he prepared disclosure statement Ex.P/9.

Later, he arrested him vide seizure memo Ex.P/6. He has

further deposed that on the basis of the said information

given by appellant Vinod, he took appellant Deepak in

custody and interrogated him in the presence of aforesaid

witnesses. He told that he had hidden deceased Jyoti''s

underwear underneath a heap of garbage lying in

Padamnagar. Thereupon, he prepared his disclosure

statement Ex.P/8. Later, he (appellant Deepak) took out

the underwear of the garbage, which he seized vide seizure

memo Ex.P/10. He also seized one pants from his house

situated in the colony vide seizure memo Ex.P/13 as he had

noticed stains of semen on it.

(12). The aforesaid evidence of I.O. J.N. Deewan has been

fully corroborated by the evidence of independent witnesses

Raju and Saligram in their examinations-in-chief in material

particulars. We have carefully perused their cross-

examinations, and we find that there is nothing adverse in

their cross-examinations to disbelieve their evidence. Thus,

it is proved beyond reasonable doubt that in addition to

other articles, I.O. J.N. Deewan seized from the possession

of appellant Vinod one child bracelet and that of appellant

Deepak one underwear.

(13). Smt. Uma Singh (PW4) has deposed that upon the written request of the police, she held the identification

parade of the articles sent by the police in the premises of

Tehsil office Khandwa as per procedure. In the

identification, Nirmala Bai and Chhaya have identified one

child bracelet and one underwear as those belonging to

deceased Jyoti. Thereupon, she prepared identification

memo Ex.P/1. In para 7, Nirmala Bai has deposed that in

the identification parade of articles she identified the said

articles. She has also identified the said articles while

recording her evidence before the trial court. Upon a

perusal of the cross-examinations of both the witnesses, we

find that the defence has failed to shake the veracity of

their evidence. Thus, we hold that it is proved beyond

reasonable doubt that I.O. J.N. Deewan seized one child

bracelet from the possession of appellant Vinod and one

underwear from the possession of appellant Deepak, which

belonged to deceased Jyoti.

(14). As per FSL report Ex.P/26, stains of human blood

were found on the articles namely deceased Jyoti''s wearing

frock, one blanket, one pillow, appellant Vinod''s underwear

and pants, and deceased Jyoti''s underwear. As per the

report, `B'' group of human blood was detected on the

pillow. However, the blood group on remaining aforestated

articles could not be detected due to disintegration of blood

and inconclusive tests results. As per FSL report Ex.P-27, a

few pubic hair of human origin were found on both the seized pillows, on deceased Jyoti''s wearing frock. However,

they were not adequate for comparison whether they were

of the appellants. We find that there is no reason to

disbelieve the FSL reports. Thus, on the basis of FSL

reports, it is proved beyond reasonable doubt that the

articles seized from the possession of both the appellants

were stained with human blood and some articles were

having human pubic hair. It be noted that both the

appellants have not given any explanation as to why stains

of human blood and pubic hair were found on the articles

seized from their possession, which in turn connect them

conclusively to the crime.

(15). Dr. Dilip (PW6) and Dr. Hemlata (PW10) have stated

in their evidence that on 22.10.2001 they had jointly

conducted postmortam examination on the dead body of

deceased Jyoti in the Mortuary of district hospital Khandwa.

They have noticed following injuries on her person.

External Injuries :

(1). Blood was oozing out from the nose;

(2). Two ante-mortem contusions of size near about

half inch long on the right cheek and mandible;

(3). Dry blood on both the thighs and vagina;

(4). 1/3rd lower part of vagina was lacerated, the size of which was 2.5 CMX1.5 CM and 1 CM;

(5). Labia minora and hymen were also torn; Internal Injuries : No internal injuries and internal organs were normal.

They have opined that the deceased''s mouth and

nose were pressed with force as a result she died due to

asphyxia by smothering. She died about 24 hours prior to

the commencement of the postmortem examination by

them. They have also opined that the injuries over and

inside deceased Jyoti''s vagina prove that she was subjected

to forcible intercourse before her death. They have proved

deceased Jyoti''s postmortem report Ex.P/4. Upon the

perusal of their cross-examinations, we find that the

defence has not challenged seriously that deceased Jyoti

died of asphyxia due to smothering and she was subjected

to rape before her death. Therefore, placing implicit

reliance upon their evidence, we hold that it is proved

beyond doubt that deceased Jyoti suffered a homicidal

death and she was subjected to rape before her death.

(16). Dr. Narendra Jain (PW5) has deposed that upon the

requisition of the police, on 23.10.2001, he medico-legally

examined appellants namely Vinod and Pradeep and found

that they were capable of performing sexual intercourse. He

has proved their medico-legal reports Ex.P/2 and P/3

respectively. The defence has not cross-examined this

witness. Thus, there is no ground to disbelieve the

evidence of this witness. Upon his evidence, we hold that it

is proved beyond doubt that the appellants were capable of doing sexual intercourse at the time of the crime.

(17). As per the evidence of Saligram (PW20), he is the

elected Ward member of the colony. Therefore, it may be

said with certitude that he knows well the topography of the

colony. It has come in paras 16 and 17 of his evidence that

Chanda Bai''s house was between appellant Vinod''s house

and an open plot, the place wherefrom the dead body of

Jyoti was recovered. Appellant Vinod has admitted in his

statement under Section 313 Cr.P.C that a few days before

the incident, he had come to reside in the house (please

see reply to question no.19). There is ample evidence on

record to hold that appellant Deepak was also a resident of

the colony and he has friendship with appellant Vinod.

Nirmala Bai in para 8 of her evidence has stated that at the

time of the incident, street lights of the colony were not

burning. We have already held that it has been proved that

I.O. J.N. Deewan seized from the house of appellant Vinod

one child bracelet, blood-stained articles namely one

blanket, one mattress, one pillow out of the two, one

underwear and some human faeces and seized deceased

Jyoti''s underwear at the instance of appellant Deepak from

the heap of garbage as stated herein-above. Upon

combining the aforesaid pieces of circumstantial evidence,

we hold that it is conclusively proved that both the

appellants lifted the 7 year old Jyoti taking advantage of

darkness prevailing in the colony when the street lights were off. Thereafter, they brought her in appellant Vinod''s

house, committed rape and murdered her by smothering in

order to cause the disappearance of evidence of rape and

threw her dead body on the open plot.

(18). After combining of the aforesaid proved

circumstances, we are of the opinion that a complete chain

is formed, which leads only to conclusion that none other

than the appellants had committed the crime.

(19). From the aforesaid close scrutiny of circumstantial

evidence on record, reasons and discussions, we find no

infirmity or defect on facts or law in the impugned

judgment. Therefore, we hold that this appeal sans merit

and substance. In the result, we dismiss this appeal

upholding the impugned judgment of conviction and

sentence imposed upon the appellants by the trial Court.