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Guddu @ Jitendra vs State Of U.P. on 2 August, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 24.07.2018

Delivered on 02.08.2018

AFR

Court No. – 40

Case :- CRIMINAL APPEAL No. – 4508 of 2013

Appellant :- Guddu @ Jitendra

Respondent :- State Of U.P.

Counsel for Appellant :- R.S. Shukla,Sanjay Kumar Srivastava

Counsel for Respondent :- Govt. Advocate

Hon’ble Amreshwar Pratap Sahi,J.

Hon’ble Arvind Kumar Mishra-I,J.

The appellant was charged under Sections 376, 302 read with Section 34 IPC in Session Trial No. 353 of 2009 arising out of Case Crime No. 652 of 2009, PS- Rajabpur, District- Jyotiba Phule Nagar for having committed rape and murder of the deceased Ms. Pinki aged about 20 years, daughter of the informant Harpal Singh who has been examined as PW-1. The trial court has proceeded to assess the evidence whereafter it has acquitted the appellant of the charge of rape, but has convicted the appellant for having committed the murder of the deceased and has punished him for the offence under Section 302 IPC awarding him life imprisonment with Rs. 20,000/- as fine, and in default of payment thereof, to further undergo one year of imprisonment.

The appellant was charged for the said offences along with co-accused Rajeev S/o Mahesh Prajapati who was declared a juvenile, and accordingly, his case was transferred to the appropriate Court. Thus, it was the appellant alone who was tried by the learned Additional Sessions Judge and convicted and sentenced under the impugned judgment dated 20.07.2013.

The FIR was lodged on 07th June, 2009 at about 05:00 pm by PW-1 informant Harpal narrating that the co-accused Rajeev and the appellant Guddu @ Jitendra used to come to his house and they were known to the family. At about 10:30 am on the same day both the accused came to his house and accompanied his daughter Ms. Pinki aged about 20 years telling him that they were taking her to Amroha (Jyotiba Phule Nagar) for an interview. The informant further narrates that when his daughter did not return till 03:00 pm in the afternoon, then his son and other family members set out to search his daughter at the residence of co-accused Rajeev but neither his daughter nor any of the accused were available. Then they went to the residence of the appellant at village Sakarpur Ki Marahaiya where also they did not find either the deceased or the accused, and consequently, they took their journey back to their village. When they reached a roadside restaurant, namely Sadbhavna Hotel, they saw that there was a crowd of some people standing at the tubewell behind the said hotel. There were some people coming and going from there towards the main road. The informant made an enquiry from the passers by who informed him that a dead body of a girl is lying in the tubewell of the accused appellant. The informant and the others then went to the site and saw his daughter lying dead with a rope tied around her neck.

The FIR alleges and names the appellant and co-accused Rajeev of having murdered the deceased by strangulating her with a rope. It was scribed by Dinesh Kumar with the thumb impression of the appellant and came to be registered by constable Ram Nath Singh at the police station Rajabpur who has been examined as PW-5.

At this juncture, we may point out that the complainant informant and the deceased are stated to be residents of village Mirzapur which is under another police station namely Naugava Sadat. Co-accused Rajeev who has been declared a juvenile is a resident of village Prithipur whereas, the appellant is a resident of village Sakarpur Ki Marahaiya falling within police station Rajabpur. They also belong to different communities. The deceased belonged to Chauhan community whereas the co-accused Rajeev is a Prajapati by caste and the appellant is a Jat. The distance of the police station Rajabpur from the scene of occurrence is stated in the FIR to be 3 kilometers.

On the registration of the FIR, Station House Officer accompanied by Sub-Inspector of Police Netra Pal Singh Chauhan is stated to have inspected the site, and prepared two recovery memos exhibited as Ka-11 and Ka-12. The first recovery memo records the recovery of a piece of water pipe lying below the waist of the deceased, a light colour handkerchief with stains on it was recovered from near the body, a towel having spread beneath the body of the deceased which was old and used containing stains was taken into custody, and then a scarf (dupatta) of light pink colour which also had stains on it was packed and sealed in a bundle and taken into custody.

The second recovery memo records the recovery of a ladies purse hanging on the bolting device (Kunda) of the room which contained a pair of glasses (spectacles), three pens out of which, one was of a blue colour and two of red colour, one head shoulder shampoo, an envelop containing five photographs, a book of general knowledge, a printed green coloured bag, a small telephone diary, a small book of hymns, scribed with a particular song, a small envelop with two small photographs one of which was of the deceased and the other of a Baba. One application form, one fair lovely cream, one comb of black colour, one green colour lipstick, one eye brow pencil, one clip and Rs. 69/- in cash. Apart from this, a pair of sandals and a necklace of pearl beads was also found lying besides the body. All these items were also packed and sealed. Both the recoveries are witnessed by Bharat Singh who has been examined as PW-3 and one Dharam Singh.

The inquest is said to have been prepared at about 18:15 pm in the evening. The appellant as well as co-accused Rajeev are both stated to have been arrested on the same day in the night at about 10:00 pm and were lodged in the lock up where they are alleged to have made a confessional statement that the residence of the deceased is 3-4 kilometers away from their village, and that they were regular visitors to her place. The co-accused Rajeev disclosed that he had developed affection for the deceased which was disclosed by him to his friend the appellant, whereafter the appellant also visited the house of the deceased a couple of times. Rajeev is also alleged to have confessed that he had gained the confidence of the family of the deceased. He had called on the appellant to accompany him on a motorcycle and they reached the house of the deceased at village Mirzapur at about 10:30 am where they met her father, the informant PW-1 Harpal, and her brother Narendra PW-2. Rajeev then told them that there is a vacancy of some teachers in a school and an interview is being conducted, and therefore, they are taking the deceased for the interview. It is said that they took the deceased on the motorcycle and arrived at the village of the appellant Sakarpur Ki Marahaiya. From there, they took the deceased to the tubewell and entered the room, whereafter Rajeev confessed to have committed rape on the deceased while lying down with the deceased on a towel on the floor of the room and he had placed the piece of pipe beneath her waist. Thereafter the deceased had wiped her private parts with her handkerchief, and he disclosed the undergarment that was recovered from him as being the same underwear that he was wearing on that day.

He further stated that his friend the appellant herein also wanted to indulge into an intercourse but that was resisted by the deceased who threatened to make a complaint about it. The appellant made attempts thereafter, but when she did not succumb to his wishes, then he and his friend both tied a rope around her neck, and strangulated her to death. They then ran away after leaving the dead body at the scene of occurrence. Upon this confession, the recovery memo which incorporates the said confessional statement indicates that the undergarment of Rajeev was obtained from him and was sealed. This document is exhibit Ka-13.

The inquest was prepared at the site, and it records that the status of the body was in a lying down position with hands and legs spread out, and the deceased was wearing a salwar and kurti of pink colour. One pair of sandals, a white pearl necklace and a handkerchief, a black undergarment, a towel, a bag, spectacles, a piece of pipe and the clothes on the body were recovered. The inquest is witnessed by Narendra who has been examined as PW-2, Bharat Singh who has been examined as PW-3, and three others namely Chandra Pal, Yash Pal and Dharam Singh. Dharam Singh is a witness to the recovery as also to the inquest but he has not been examined.

The description of the body in the inquest report is worth noting as it records a rope around the neck, and the tongue of the deceased clenched between the teeth. It would be noteworthy to mention that none of the recoveries record the recovery of a rope even though mentioned in the inquest report.

The body was sent for postmortem and was conducted the next day on 08th June, 2009.

The autopsy was carried out by Dr. Pradeep Agarwal, the Medical Officer at the Hospital at Jyotiba Phule Nagar, and he has been examined as PW-4. The postmortem report describes the mouth as closed with bleeding through nostrils and the mouth.

There are three abrasion wounds one on the left wrist, one on the right thigh and the third on the neck. The injury on the neck is an abrasion of 1cm width round, encircling the whole neck which is regular and 3 cm below adam’s apple. The face was blotted and gave a congested appearance. The muscles of the neck were congested and the trachea was fractured 3 cm below the hyde bone.

The private parts were examined and the hymen was found ruptured with no tag. No other injury was indicated.

The cause of death is stated to be asphyxia due to strangulation of the neck.

The charge was framed against both the accused, and as stated above Rajeev who was declared a juvenile, his case was separated and transferred to the appropriate Court. The case against the appellant proceeded and he was charged with the offence of rape under Section 376 IPC, and also for the charge of murder having committed an offence punishable under Section 302 IPC read with Section 34 IPC.

The prosecution examined three witnesses of fact Harpal Singh, the father of the deceased and the informant as PW-1, Narendra Singh the brother of the deceased and a witness to the inquest was examined as PW-2 and Bharat Singh who is the witness to the inquest and the recovery was examined as PW-3. All these three witnesses are also stated to be the witnesses of fact having last seen the deceased in the company of the accused.

Dr. Pradeep Agrawal who carried out the autopsy has been examined as PW-4, the constable scribe Ram Nath Singh who registered the FIR has been examined as PW-5, Netra Pal Singh Chauhan Sub-Inspector of Police who prepared the inquest has been examined as PW-6, Dr. M.C Gulecha who carried out the pathological test of the slide containing vaginal smear was examined as PW-7, Yashveer Singh who was the Station House Officer on the date of the incident, and had investigated the case initially was examined as PW-8, and Ranveer Singh who concluded the investigation and filed the police report/charge sheet was examined as PW-9.

The accused thereafter denying the charges and alleging false implication pleaded not guilty through his statement under Section 313 Cr.P.C.

The trial court, thereafter, analyzing the evidence and after having appreciated the arguments recorded that it was a case of circumstantial evidence, came to the conclusion that since there was no conclusive evidence about the commission of the offence of rape by the appellant, nor was it supported by any other corroborating material, the appellant deserved to be acquitted on that charge, and accordingly acquitted him of the same.

However, on the charge of murder, the trial court found that on the basis of last seen evidence and the surrounding circumstances in which the deceased on the same day after having accompanied the appellant and the co-accused Rajeev, was found dead within a short span of time, clearly established that the offence of murder had been committed involving the appellant. Consequently, keeping in view the place from where the body was found and the proximity of the appellant and his association with the family of the deceased, the prosecution had discharged its burden of proving the guilt against the appellant which could not be dislodged by any material on behalf of the defence, and accordingly, the appellant was convicted and sentenced to undergo life imprisonment with fine.

Learned counsel Sri Shyam Lal along with Sri Dhaka have advanced their submissions on behalf of the appellant and have urged that the case being one of circumstantial evidence without there being any motive proved or established including that of the offence of alleged rape, for which charge the appellant has been acquitted, there was no other corroborating material or evidence to establish that the appellant had committed the offence of murder. The allegation of last seen against the appellant in the company of the deceased is absolutely unfounded and the conviction is based only on the strength of the alleged self confession of the appellant and the co-accused Rajeev in police custody, which is not admissible in evidence. The trial court, therefore, committed a grave error in resting its conclusion mainly on the self confessional statement of the appellant.

Questioning the procedural aspect including lapses in investigation and the absence of recovery of the instrument of strangulation, it is urged that the prosecution has not been able to prove the case in accordance with law, and the chain of the sequence of events has not been established. He urges that the trial court has assumed that the tubewell where the alleged offence has occurred was that of the appellant without there being any evidence led to that effect and as such in the absence of any proof that the tubewell was owned by the appellant, the finding is perverse.

To the contrary, the inquest report categorically mentions that behind the hotel was the farm of one Prabhu Dayal Gupta where the tubewell was situate. In such circumstances, the trial court has completely misread the evidence on record, and has imagined the commission of the offence implicating the appellant.

The following decisions have been cited at the Bar to substantiate the aforesaid submissions namely Tara Singh Vs. State 1951 AIR (SC) 441, Tori Singh Vs. State of Uttar Pradesh 1962 AIR (SC) 399, Kartarey Vs. State of Uttar Pradesh 1976 SCC (1) 172, Shankarala Gyarasilal Dixit Vs. State of Maharashtra 1981 (2) SCC 35, Prem Thakur Vs. State of Punjab 1982 (3) SCC 462, Thanedar Singh Vs. State of Madhya Pradesh 2002 (1) SCC 487, State of Rajasthan Vs. Bhawani 2003 (7) SCC 291, Babu Vs. State of Kerala 2010 (9) SCC 189, Rishipal Vs State of Uttarakhand 2013 (12) SCC 551, Majendran Langeswaran Vs. State (NCT of Delhi) and another 2013 (7) SCC 192, Kanhaiyalal Vs. State of Rajasthan 2014 (4) SCC 715, Revutappa Vs. State of Karnataka 2014 (13) SCC 47, Tomaso Bruno and another Vs. State of Uttar Pradesh 2015 (7) SCC 178, Rambraksh @ Jalim Vs. State of Chattisgarh 2016 (12) SCC 251, Anjan Kumar Sarma and others Vs. State of Assam LAW (SC) 2017 (5) 57.

Learned A.G.A. has defended the judgment of the trial court contending that the entire links of the chain of circumstances are complete inasmuch as, even if the charge of the rape has not been found to be proved, the evidence of the deceased leaving her house in the company of the accused including the appellant is clearly established. For this he has invited the attention to the ocular testimony of PW1, PW-2 and PW-3 to urge that they are consistent and remain unimpeached while portraying the departure of the deceased on a motor-cycle along with the accused. He further submits that all the three witnesses have categorically indicated the timing of departure and a variation of an hour in the statement of PW-1 during cross-examination does not demolish the basic case of the evidence of last seen. It is urged that PW-1 and PW-2 have both categorically indicated that the deceased went along with the accused who had come to take her on the pretext of giving an interview for a job at Amroha. The third factum which strengthens the case of the prosecution according to the learned A.G.A. is the fact that the accused, including the appellant, were known to the family and the appellant in particular had visited the house of the deceased a couple of times along with the co-accused Rajeev. It is therefore submitted that there was acquaintance, there was accompaniment and there is reflected a trust reposed in the accused by the family of the deceased on account of such acquaintance. He contends that even though PW-1 has denied the intimacy of relationship with that of the accused yet the fact of the deceased knowing the two accused and they being introduced to the family of the deceased is clearly established. This connection therefore is a strong link in the chain of events which connects the prompt recovery of the body from the scene of occurrence which was a room of a tubewell in the occupation of the appellant. It is urged that the fact that the appellant was in possession of the tubewell has been categorically indicated in the evidence of PW-8 coupled with the description given in the site plan which has also been proved.

Sri Ajit Ray, learned A.G.A. has further submitted that one of the judgemnts relied on by the learned counsel for the appellant refers to the case of State of Goa Vs. Sanjay Thakaran, 2007 (3) SCC, 755 (Paragraph no.34) where the Apex Court while dealing with the appreciation of a last seen evidence has held that if there was no possibility of any other person meeting or approaching the deceased during the time gap between the occurrence and the recovery, then the gap of the intervening period will not be sufficient to disbelieve such circumstances. In the instant case he submits that the departure of the deceased in the company of the appellant and the co-accused at about 10.00 a.m. in the morning and the witnessing of a dead body by passersby in the afternoon of the same day and then its immediate identification and the recovery in the presence of the prosecution witnesses by the police between 3-4 p.m. leave no room for doubt that the suspicion or doubt cast on the appellant and the co-accused stood proved, as the entire sequence of the deceased accompanying the accused to Amroha and then returning back to the place of occurrence was possible within this duration of time. The gap of timing therefore nowhere reduces the complicity of the appellant and is a direct pointed towards his guilt.

The post-mortem report also gives the approximate timing of death a day earlier between the same period when the deceased is stated to be in the company of the accused.

He further submits that the recovery of a book of General Knowledge in the handbag/purse of the deceased also establishes the link of her going for an interview. It is urged that the said book coupled with an application form and photographs from the purse together with stationery clearly indicates that she must have been taken for an interview to Amroha. He submits that the suggestion on behalf of the learned counsel for the appellant that the date of the incident was a Sunday and therefore no interview could have been possible, is an argument in the abstract as no such defence was set up and even otherwise the holding of an interview on a Sunday for a teaching job in a private school can not be said to be unusual. He therefore submits that there is no reason to doubt all these circumstances if taken cumulatively which stands supported and corroborated by the oral testimony of the witnesses as well as by the recovery. The contention therefore is that there being no other hypotheses which may be possible or even suggested by the defence, the trial court was justified in concluding and that even if the offence of rape has not been found to be proved, the murder has been committed when the deceased was almost in a helpless and defenceless state in the company of the accused.

Shri Shyam Lal in his rejoinder has further pointed out the discrepancies in the evidence contending that the site-plan which has been prepared to demonstrate that the allegation that the tubewell room was in possession of the appellant is based on mere hearsay. There being no enquiry made by the Investigating Officer and there being no testimony to that effect by him the allegation is without proof.

The contention is that the judgment which has been relied on by the learned counsel for the appellant to hold that the description in the site-plan based on the narration by standers, their statement or even contained in the previous statement of the prosecution witnesses is clearly hit by Section 162 Cr.P.C. There being no effort by the Investigating Officer to find that as to who was the true owner of the said tubewell, the allegation that the tubewell is of the appellant is based on no evidence.

He then submits that once motive is not established and the trial court has proceeded only on the self-confessional statement of the accused then in that event this Court can assess the evidence independently for which he submits that there are glaring inconsistencies in the ocular testimony of the witnesses. The contention is that PW-1 in cross-examination has categorically stated that the time at which the deceased departed from home in the company of the accused was 9.00 a.m. and not 10.30 a.m. whereas PW-2 and PW-3 who were examined later-on maintained the timing at 10.30 a.m. Apart from this he points out that PW-8 the Investigating Officer has categorically stated that he was informed by PW-1 about the departure of the deceased at about 10.30 a.m.

Shri Shyam Lal then urged that the inquest report indicates that the body was found in a lying state and the deceased was wearing a pink coloured Salwar and Kurti whereas PW-3 Bharat who was projected as an independent witness has stated that the body was lying in a half naked state. He submits that PW-3 had neither seen the deceased going with the accused nor does he appear to have seen the body at the time of the inquest and has simply put his signatures thereon at the police station. The third instance pointed out to discredit the testimony of PW-3 is that in his cross-examination PW-3 has stated that there were three policemen and one home-guard when he arrived at the scene of occurrence and saw the body whereas the Investigating Officer, PW-8 Yashveer Singh in his statement states that no police had arrived before his arrival. The contention is that the police arrived later-on after the first information report was lodged at 5.00 p.m. and therefore the testimony of PW-3 that when he saw the body for the first time, which was obviously before going to the police station, there were police personnel standing at the scene of occurrence is false. It is therefore submitted that PW-3 had neither gone to the scene of occurrence nor had he participated in this process and his testimony for having seen the deceased departing in the morning is a procured testimony.

Supplementing the same Shri Shyam Lal submits that PW-3 along PW-2 improved upon the first information report version and the statement of PW-1 by alleging rape whereas this was not the case set-up by the informant in the first information report nor did he give any testimony of rape as PW-1. Thus in view of the medico legal report clearly indicating the absence of any evidence of rape, the testimony of PW-3 deserves rejection out-right.

He then submits that PW-1 and PW-2 being the father and the brother of the deceased are partisan and interested witness and therefore their testimony on the issue of last seen also does not deserves any credit. The trial court therefore committed an error in proceeding to gather all the adverse circumstances pinning it on the appellant on the basis of the alleged self-confessional statement of the appellant and the other co-accused, which was not proved and which could not have been utilized for the purpose of convicting the appellant.

We have considered the submissions raised and have perused the records as well as the authorities cited at the bar. In order to assess the complicity of the appellant, one has to begin with the initial disclosure made in the first information report about the departure of the deceased in the company of co-accused Rajeev and the appellant. In this regard the recital in the first information report has been substantiated by the consistent statement of PW-1, PW-2 and PW-3 that the deceased accompanied the accused at about 10.30 a.m. However PW-1 in his cross-examination reduced this time to 9.00 a.m. in the morning. Testing this discrepancy we find that the factum of departure in the morning is undisputed. PW-1 is not a literate person and giving the testimony after several months of the trial there is nothing unnatural in a slight variation in the timing insisted upon by him in the cross-examination. PW-1 has nowhere attempted to alter the timing to such an extent that may discredit his testimony on this count. Thus the ocular witness has established that they saw the deceased accompanying the accused on a motor-cycle and about the fact of the deceased going for an interview with them.

The distance to Amroha has been described in the evidence as 18-20 kms. The distance of the residence from the place of occurrence and the village of the accused is all within 4 kms. The recovery of the stationery, the application form, the passport size photographs and a book of General Knowledge from the purse of the deceased strengthens the statement of the prosecution witnesses about the accused having informed them that the deceased was going to Amroha for an interview. Such articles in her purse are an indicator of the fact of that she was going for an interview. The submission of the learned counsel that it was a Sunday and therefore interview was not possible could have been guaged had there been any actual interview being held and any knowledge about the same to any of the witnesses but in cases of circumstantial evidence an inference is permissible provided there are other links to the chain.

In our considered opinion the items which have been recovered and the timing at which the departure had been made lends support to the prosecution story that the deceased departed with the accused for such a purpose. This we find to be further strengthened by the fact that PW-1 in his cross-examination has indicated visiting Amroha and the bus stand at Atrati even though this fact is not mentioned in the first information report. On cross-examination he stated that he did not ask the name of the school where she was going. PW-2 has stated that he remember having asked his sister about the school where she was going but he does not remember the name of the school that was informed by her. It is thus evident that when they did go to search the deceased they did go to Amroha which was the place about which information had been given to PW-1 and PW-2 by the accused or else there was no occasion for them to have gone to Amroha. This was in-continuity of their effort when they failed to find the deceased either at the residence of Rajeev or the appellant where they had gone to search her. The witnesses therefore by their testimony have nowhere contradicted each other on the issue of last seen in the company of the accused. We have not been able to find any element of doubt on this count either in the evidence or in the findings recorded by the trial court. Additionally the statement of PW-3 to this extent also corroborates the version of PW-1 and PW-2.

Then comes the link relating to the motive that is reflected in the evidence and which is one of the ingredients to be taken into account while dealing with a case of circumstantial evidence. The prosecution witnesses have indicated and established through their testimony that the deceased was taken by the accused on the pretext of an interview at Amroha. The deceased knew the co-accused Rajeev since her school days. After having completed her Intermediate she had also performed teaching job at two places. It is therefore quite possible that pursuing the profession of teaching in a private school had led her to believe about the offer of a job of a teacher and an interview being held at Amroha. This is coupled with the fact that the appellant as well as the co-accused were well known to the family and therefore there is a probability of trust having generated between the family members of the deceased, the deceased and the accused and this is clearly reflected in the statement of PW-1 and PW-2 that they believed what was informed to them plainly. This belief and trust between them led the deceased to accompany the accused who took advantage of this and took her to Amroha. The motive part has to be guaged from the conduct thereafter.

The deceased was found dead in mysterious circumstances but not unknown circumstances. She did not die a natural death and the medical report clearly establishes strangulation. It is correct that the allegation of rape was made as it was suspected that it may have happened but the pathological report of the vaginal smear slide did not support the prosecution story. Similarly the post-mortem report also did not indicate any signs of sexual assault on the private parts except for the injury on the right thigh and on the left wrist of the deceased which can be construed as a sign of struggle. It is quite possible that the assault was attempted but was resisted and in order to save oneself from further suspicion she was strangulated to death. The allegation of actual rape has therefore not been found established and therefore it is not possible to construe that rape had actually been committed but the fact remains that there is one abrasion on the right thigh and one injury of abrasion on the left wrist. From the post-mortem report it appears that the deceased was of average built and therefore could have been over powered in order to make her succumb to the circumstances in which she was placed, but the medical report not supporting the evidence of rape it can not be conclusively held that the appellant had the motive of committing the said offence.

However, the fact remains that once she was last seen in the company of the appellant and the co-accused and which stands established as indicated above, then in our opinion the ingredients of Section 106 of the Indian Evidence Act, 1872 are clearly attracted when there is no other evidence to indicate that the deceased was in somebody elses’ company during this period, and as such it is the appellant and the co-accused on whom the burden shifted to dislodge this belief. The appellant and the co-accused both denied their involvement and urged that it was a case of false implication. As pointed out by the learned counsel for the appellant the Apex Court in the case of Shankarala Gyarasilal Dixit Vs. State of Maharashtra (Supra) the answer to question of false implication and the accused being not present in case of circumstantial evidence is not always easy to give in a criminal case. The Apex Court observed that when faced with brutal crimes human nature is too willing to spin stories out of strong suspicion and therefore to draw an inference of involvement, the evidence will have to be looked into as to whether the accused is being falsely implicated or not.

As observed above the link of last seen in the company of the appellant and the co-accused remains unimpeached. Thus this would not be a case of false testimony even though the allegation of rape may not have been established. The appellant and the co-accused having lured the deceased for an interview and then took her to a secluded place like a tubewell room can not be a voluntary act of the deceased. On this count the argument of the learned counsel for the appellant in relation to the exclusive possession of the place being not of the appellant, we find that the inquest report mentions the place to be belonging to one Lala Prabhu Dayal. The tubewell is situate over the farm of the said person. The connection of the appellant with the said place of occurrence has been asserted by PW-1 and PW-2. It is correct that proof of ownership of the appellant of the tubewell has not been established, and on the other hand stated to be belonging to Lala Prabhu Dayal as is evident from the inquest report and also the statement of PW-8 the Investigating Officer who has stated that the room belongs to Lala Prabhu Dayal and the land around the same also was of his ownership. PW-8 has however stated that he did not take the statement of any servant or Chaukidar or the owner but while preparing the site-plan the Investigating Officer has given a description that the land surrounding the tubewell was being cultivated by the appellant on payment of one fourth rent. The said site-plan has been exhibited as Ka-15. The site-plan has been proved by PW-8 in his statement stating that he had prepared it in the presence of PW-1. There is no cross-examination by the defence on this site-plan and the description given therein. The description does not say that the information about the land being cultivated by the appellant and the tubewell situate over was an information given by any third person. The Investigating Officer himself on coming to know of the said fact has indicated it in the site-plan. In our opinion the said information not being stated by any third person or the statement being of any of the witnesses is not hit by Section 162 Cr.P.C. inasmuch as the information of the Investigating Officer PW-8 as tendered in the site-plan which was proved by him was not sought to be dislodged by the defence by any cross-examination on that count. We are therefore inclined to believe the said description and we also confirm the findings recorded by the trial court in this regard. The argument advanced by the learned counsel for the appellant therefore is unacceptable and we find that the prosecution has been able to establish that the appellant was in occupation of that farm land together with the tubewell which belongs to one Lal Prabhu Dayal. The appellant was therefore in possession of the land on behalf of its owner and the tubewell situate thereon. There is therefore a high degree of probability that it was the appellant with whom the deceased was travelling along with the co-accused who diverted her to that secluded place with some ulterior motive. This strong circumstance is yet another link in the chain of circumstances which clearly indicates that the deceased remained in the company of the accused and was taken to the tubewell room where her dead body was found. This therefore again shifts the onus on the appellant to come out with some credible explanation about the death of the deceased which has not been attempted at all. The inference therefore is against the appellant.

At this stage Shri Shyam Lal also urged that it is difficult to believe the status of the body as described in the inquest report as compared to the site plan and the statement of PW-3. The inquest report indicates that the deceased was wearing a Salwar and Kurti of pink colour whereas PW-3 has stated that the body was in a half naked state. The description in the site-plan by the Officer also indicates that the body was in a half naked state. He therefore contends that this variation in the description clearly indicates that these documents were prepared at the police station without any actual inspection having been made or having been seen by PW-3. We have considered the aforesaid submissions as well and we find that the bundle of the recovered items that were sent with the deceased for post-mortem was produced before the court and the said clothes were identified to be same as that of the deceased. The incorrect description of the body being half naked in the site-plan may match with that of the deposition of PW-3 but the inquest report which has been witnessed by five witnesses and prepared by PW-6 has been proved. The fact as to whether the body was in a half naked state or not, could have been a matter of cross-examination with PW-6 who prepared the inquest report but there does not appear any attempt on the part of the defence to have sought a clarification or even made a suggestion in this regard. We therefore do not find it to be a variation so as to make the case of the prosecution improbable.

Learned counsel for the appellant has urged that once motive has not been established there is no other circumstance which may clinch the actual act of murder having been committed by the appellant or he having participated in the same. The fact remains that according to the first information report the deceased died an unnatural death caused by strangulation. The post-mortem report also describes a regular mark around the neck of the length and breadth that was sufficient to strangulate her to death. The report describes that the trachea was fractured. This could have been possible only if such strangulation was attempted.

Learned counsel urged that the recovery memo nowhere indicates collecting of any evidence of a rope or having been examined by the doctor who arrived at a conclusive finding. The contention is that the evidence of a rope having been utilized as the instrument of strangulation being not established, the allegation stands unsubstantiated. This is a case of circumstantial evidence and in the absence of any other ocular testimony, this fact of the rope not being mentioned in the recovery memo belies the case of the prosecution.

We have examined the evidence closely and it is correct that the two recovery memos do not recite a rope as a separate article which was found around the neck of the deceased. To that extent there appears to be an omission in the memos, but the fact remains that the inquest report which has been proved categorically recites a rope around the neck. The Sub-Inspector of Police Netra Pal Singh PW-8 who prepared the inquest report and proved it before the court also has categorically stated that when the bundle containing the recovered items were opened before the court he identified the rope which was in the said bundle. This testimony of Netra Pal Singh PW-8 of having identified the rope before the court has remained unimpeached. A mere omission in the recovery memo to mention the item of rope will therefore not amount to any such lapse which may prove vital to deny the existence of the instrument of strangulation. To the contrary with the aforesaid evidence on record and strangulation being the cause of death having been proved by the doctor before the court there is no doubt that the deceased was done to death by strangulating her.

We now proceed to assess the allegation of the complicity of the appellant in the above circumstances.

In a murder of passion it is difficult to discover the secret temptations and hidden faults of the accused inasmuch as who can divine the secrets of the heart ? The only material on which our fallible human judgment can work is the act itself. At this juncture we may observe that the trial court has not restricted its finding entirely on the self-confessional statement of the appellant. The self-confessional statement may have been a circumstance but the evidence as discussed hereinabove was also before the trial court. The circumstances also do not undermine the veracity of the ocular account and it can not be said to be inherently flimsy. The court can ignore the improved part of the testimony relating to the commission of the offence of rape, but assessing on the broad probability of human affairs the only compelling inference that can be drawn on estimating the entire evidence on record is that the appellant has failed to adduce any material to contradict the prosecution evidence by discharging the burden in terms of Section 106 of The Indian Evidence Act, 1872. The appellant was not a stranger to the house of the deceased and had already been introduced, may be through the co-accused Rajeev but he was known to the family of the deceased and therefore there does not appear to be any reason for false implication. The family of the deceased had no enmity or any other cause that may be suggestive of a case of false implication.

It is correct that motive is locked in the heart of the accused. The Supreme Court in cases of circumstantial evidence in the case of Trimukh Maroti Kirkan 2006 (10) SCC 681 has observed that it is difficult for the prosecution to procure and adduce evidence in the given circumstances of a case. It is in this background that we have to construe the conduct of the appellant and also the fact that in view of the last seen evidence having been established, whether the appellant has been able to come forward with an explanation in terms of Section 106 of the Indian Evidence Act. The Apex Court in the case of Kishore Bhadke vs. State of Maharashtra 2017 (3) SCC 760 has discussed the law including the issue of a time gap and has held that the circumstances of last seen together becomes relevant if the death takes shortly after the accused and the deceased were last seen together. Paragraph nos. 40 to 49 of the said judgment are relevant. The Supreme Court in the case of State of Himanchal Pradesh Vs. Raj Kumar 2018 (2) SCC 69 discussed the law relating to drawing the inference of guilt on the basis of circumstantial evidence and has explained the burden on an accused that is to be discharged under Section 106 of the Indian Evidence Act. In that case, the judgment of the High Court was reversed holding that if the accused does not throw light on the facts which are in his knowledge then any failure to offer an explanation would be a strong militating circumstance against him.

In the instant case, once it is established that the deceased departed at about 10:30 am in the company of the appellant and the other co-accused and was found lying dead at about 2.00p.m. on the same day in a tubewell room as narrated above, then it was for the appellant to have shed light on the transaction and about his conduct as the last seen evidence clearly connects the appellant in the company of the deceased.

Learned counsel for the appellant has relied on certain judgments of the Supreme Court on this issue noted hereinabove but in view of these latest pronouncements, we are inclined to follow the ratio laid down therein as against the judgments cited by the learned counsel for the appellant which do not come to his aid.

It is also the duty of the Court to sift the evidence so as to reach the bottom of the truth. Reference may have to the judgment in the case of State of U.P. Vs. Anil Singh, 1988 (Supp.) SCC, 686 paragraph nos.15 to 17 extracted hereinunder :

“15. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some false-hood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Bihari Maiti Vs. Matangini Dasi, AIR 1919 PC 157, the Privy Council had this to say (at p.628):

That in Indian litigation it is not safe to assume that a case must be a false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is, on some occasions, a tendency amongst litigants….to back up a good case by false or exaggerated evidence.

16. In Abdul Gani Vs. State of Madhya Pradesh AIR 1954 SC 31 Mahajan, J. speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.

17. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform.”

Therefore, on a perspective of the entire case as set out before us and keeping in view of evidence on record as well as the findings recorded by the trial court we are unable to find any reason to exclude the only probable hypotheses of the complicity of the appellant. The entire circumstances clearly indicate that the appellant must have been involved in the commission of the offence and having failed to dislodge this doubt, the prosecution has clearly established the case beyond reasonable doubt to bring home the guilt of the appellant.

We accordingly dismiss the appeal and uphold the conviction of the appellant by the trial court.

Order Date :- 02.08.2018

R./Arif

 

 

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