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Mahesh vs State on 30 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 47

Case :- JAIL APPEAL No. – 5466 of 2007

Appellant :- Mahesh

Respondent :- State

Counsel for Appellant :- From Jail

Counsel for Respondent :- A.G.A.

Hon’ble Shri Narayan Shukla,J.

Hon’ble Chandra Dhari Singh,J.

(Delivered by Hon’ble Chandra Dhari Singh,J)

1. Heard Ms. Rashmi Srivastava learned Amicus Curiae for the appellant, Mr. Nagendra Bahadur Singh learned A.G.A. for the State and perused the record.

2. This appeal has been filed against the judgment and order dated 18.08.2006, passed by the court of Sessions Judge, Gautam Budh Nagar in Session Trial No.561 of 2005 (State v. Mahesh), whereby the accused-appellant was convicted for offence punishable under Sections 376 and 302 I.P.C. and sentenced to undergo an imprisonment for life under Section 376 I.P.C. and also to undergo imprisonment for life and a fine of Rs.10,000/- for offence punishable under Section 302 I.P.C. In default of payment of fine, he would sentenced for two years. Sentences under both the sections shall run concurrently.

3. Brief facts of the case.

(I) As per the prosecution story, there is a house of Surendra Singh Goojar situated in Prahlad Colony, Barola, police station

Sector-49, Noida, in which several persons, including complainant PW-1 Mohd. Ashfaq and accused Mahesh used to reside on rent in different rooms.

(II) In intervening night of 1/2.07.2005, most of the residents of the house were sleeping in court-yard in their respective rooms and complainant Mohd. Ashfaq was also sleeping with his wife and children including his five year old daughter i.e. victim. At about 02:00 a.m., all of them had awakened as it had started raining, at that time complainant found that victim was not present on her cot. He started searching the victim but she was not traced out, her mother started weeping, whereupon all the residents assembled at her room, but accused Mahesh did not come.

III. On the next day, the victim was searched out by everybody but she could not be traced. On 03.07.2005 at about 05:00 p.m., some residents of the house informed the complainant that bad smell was coming out from the room of Mahesh. On that, the people tried to peep into his locked room through window, but they could not see anything properly and then the accused Mahesh was searched and he was found working nearby. He was told by the complainant and other persons that bad smell was coming out from his room and he was asked to open the room. Key of the room was demanded. The accused informed them that the key was not with him and tried to run away, but he was apprehended by the people, his personal search was made, the key was found in his pocket. He was brought to his room, which was opened by him and then, it was found that the dead body of victim was wrapped in a gunny bag. The body was in the composed position and was naked . Her underwear, which was stained with blood, was also lying beside her body.

IV. The appellant was handed over to the police at police station Sector-49, Noida, where complainant Mohd. Ashfaq was given written report Ex.Ka-1, it was mentioned in the report that the victim was raped before being murdered. On the basis of the report, the case under Sections 376, 302, 201 I.P.C. was registered against the accused and matter was investigated by the police.

V. After preparation of the inquest report of the dead body of the victim, it was sent for post-mortem examination. On 04.07.2005, post-mortem examination of the girl was performed by Dr. R.N. Agarwal (PW-4) along with Dr. Ajay Agarwal. During investigation, it was also revealed that in the night of 1/2.07.2005, PW-2 Ibne Ali, who was also the resident in one of the room of the same house had awakened at about 12:30 a.m. for urination and had seen that at the hand-pump, both accused Mahesh and victim were standing. He thought that the girl might have awakened to drink water, as it was quite hot. He again went to sleep and at about 2:00 a.m., the rain had started, due to the rain, PW-2 and other people had awakened, then it was found that the girl was missing. The PW-3 Shafi Alam informed that on 01.07.2005 at about 7:00 p.m., he had seen accused Mahesh on a shop where he was giving some toffees to victim. After concluding the investigation, the Investigating Officer had submitted the charge-sheet against the accused-appellant for offence punishable under Sections 376, 302 and 201 I.P.C.

VI. Charges for commission of the offence of Sections 302 and 376 I.P.C. were framed against the accused, who pleaded not guilty and claimed trial.

VII. The prosecution has examined complainant Mohd. Ashfaq as PW-1, Ibne Alam as PW-2, Shafi Alam as PW-3, Dr. R.N. Agarwal as PW-4, Sub-Inspector R.N. Singh Yadav as PW-5, Constable Surendra Kumar as PW-6 and Sub-Inspector Kamal Singh Yadav as PW-7 respectively, in support of its case.

VIII. The trial court after hearing counsel for the parties and perusing the record, the judgment and order dated 18.08.2006 was passed, whereas the appellant was convicted for offence punishable under Sections 376, 302 I.P.C. and sentenced him to undergo imprisonment for life for offence punishable under Section 376 I.P.C. and also undergo imprisonment for life and a fine of Rs.10,000/- for offence punishable under Section 302 I.P.C. In default of payment of fine, he would undergo further sentence of two years. Both the sentences shall run concurrently.

IX. After close of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C. in which he denied the occurrence and stated that he had been falsely implicated in the case. However, the appellant did not produce any evidence in defence.

X. Aggrieved by the said judgment and order dated 18.08.2006 passed by the Sessions Court, the jail appeal bearing No.5466 of 2007 was filed before this court on the ground that the appellant was falsely implicated in this case and prosecution had failed to prove this case beyond reasonable doubt.

5. Learned Amicus curiae appearing for the appellant submitted that this is not a case of direct evidence and it depends on the circumstantial evidence. The chain of the circumstantial evidence has not been completed. The appellant in his statement under Section 313 Cr.P.C. stated that he was falsely implicated in the case as he had some enmity with the complainant. Therefore, the appeal deserves to be allowed.

6. On the other hand learned A.G.A., vehemently opposed the appeal. He submitted that the victim was minor girl, who was raped and murdered by the appellant. Witnesses had seen the accused person with the victim in the night of the incident. The dead body was found from his room and in this regard no explanation had been given by the accused-appellant in the statement made under Section 313 Cr.P.C. Therefore, the appeal lacks merit and is liable to be dismissed.

7. We have considered the rival submissions made by the learned counsel for the parties and perused the records.

8. PW-1 Mohd. Ashfaq is the complainant and the father of the victim, he has supported the prosecution case on oath and has proved his written report Ex.Ka-1, which he got scribe from one Suraj Rana. PW-2 and PW-3 have also supported the prosecution case. PW-4 Dr. R.N. Agarwal had performed the post-mortem examination of the dead body of victim on 04.07.2005 at about 3:30 p.m. According to him, there were blisters all over the body which was highly decomposed and numerous maggots were present and faecal matter was coming out of her anus. According to him, due to decomposition of the dead body, he could not exactly ascertain the cause of death, but has suggested that it might be due to shock. At the time of examination, the girl was dead by about three to five days. He had also prepared the slides of liquid present in the vagina of the girl and had sent the same for pathological examination. He has proved his report Ex.Ka.-2.

9. PW-5 S.I. R.N. Singh Yadav is the first I.O. of the case. He has proved the memo Ex.Ka-3 of taking into police possession, sample of blood stained and plain earth from the place where the dead body of the girl was found lying, which was prepared by S.I. Naresh Pal Singh in his presence. He has further proved the site plan of the place of occurrence Ex.Ka-9 and two packets containing blood stain and plain earth material Ex.1 and 2. A gunny bag which was wrapped around the dead body of the deceased Ex.3 and the cloths of the deceased including a vest and underwear materiel as EX.4 and Ex.5 respectively.

10. PW-6 Constable, Surendra Kumar is the scribe of the chik F.I.R. and the G.D. relating to the registration of the case. According to him, on 03.07.2005 at about 7:00 p.m., he had written the chik F.I.R. Ex.Ka-10, on the basis of the report Ex.Ka-1 and had also written G.D. No.24 relating to the registration of the case.

11. PW-7 S.I. Kamal Yadav is second I.O. has proved the pathological report of the slides of the vaginal fluid received by him as Ex.Ka-12. He had filed a charge-sheet Ex.Ka-13 against the appellant.

12. The prosecution had filed the report of the Forensic Science Laboratory Agra Ex.Ka-14, in support of the examination of the blood stained and plain earth, underwear and gunny bag. According to the report the human blood was found on all these items.

13. The instant case is not a case of direct evidence and the accused had been charged for committing rape on victim as well as murdered her on the basis of certain circumstances. The prosecution, as stated above, had examined three witnesses namely PW-1 Mohd. Ashfaq, PW-2 Ibne Ali and PW-3 Shafi Alam to prove those circumstances. All these witnesses have supported the prosecution case and have stood the test of cross-examination. No circumstance would have come in their cross-examination, which could raise any doubt about the credibility of their testimony. All of them natural and probable witnesses as having been residing in the same house from where victim had disappeared and her body was found in the room of the appellant. The accused Mahesh has stated in the statement under Section 313 Cr.P.C. that these witnesses have deposed falsehood against him due to village enmity. It appears that none of the above named witnesses was either examined or any question was put in respect of said circumstance of village enmity or any dispute of money. PW-2 Ibne Ali and PW-3 Shafi Alam are independent witnesses as they have neither any relation with the complainant nor any enmity against the accused. Therefore, there are no reason to disbelieve their testimony and their testimony inspires confidence and is worthy of credit.

14. The victim was not transpired for two days from the date of missing i.e. night of 1/2.07.2005. On 03.07.2005 at about 5:30 p.m. some resident of the house felt some bad smell coming out from the room of accused and when accused was found and was brought to his room; when he opened his room then the dead body of victim was found lying wrapped in a gunny bag and blood was found on the floor and beside of the dead body some cloths were also lying. The recovery of the dead body and her belonging were made from the room of the accused person and accused person has not given any explanation regarding the recovery of the dead body from his room in the statement made under Section 313 Cr.P.C.

15. So far as the charge of Section 376 I.P.C. for committing rape on victim is concerned, there is no direct evidence in respect of the commission of this crime, but the circumstances clearly speak that the girl was taken in the room by the accused only for his intention to commit rape with her, otherwise, there was no justification for the presence of the dead body of the victim into the room of the accused. At the time of the recovery of the dead body, the girl was naked and her half tongue was coming out of her mouth and faecal matter had come out of her anus. These circumstances clearly shows that the victim, who was of a tender age of five years was subjected to sexual assault and since she could not bear impact of penetration of 33 years old man, her faecal matter had come out as a consequence thereof.

16. “Section 375. Rape. – A man is said to commit “rape” if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other persons; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

In the case of Sakhi vs. Union of India, (2014) 5 SCC 518, the Hon’ble Supreme Court held:

“The dictionary meaning of the words “sexual intercourse” is heterosexual intercourse involving penetration of the vagina by the penis. If the hymen is ruptured by inserting a finger, if would not amount to rape.

It is well-settled principle that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is to be strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear.

Moreover, the entire legal fraternity of India, lawyers or judges, have the definition as contained in Section 375 IPC ingrained in their mind and the cases are decided on the said basis. The first and foremost requirement in criminal law is that it should be absolutely certain and clear. An exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in a good deal of chaos and confusion, cause delays and will not be in the interest of the society at large.

Nevertheless, the suggestions made by the petitioners will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at an alarming speed and appropriate legislation in this regard is, therefore, urgently required. It is hoped that Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves.”

17. In the case of Bantu vs. State of M.P., (2001) 9 SCC 615, the Hon’ble Supreme Court held:

“According to the prosecution the accused-appellant had taken the deceased girl aged 6 years to a cinema show. When the girl did not return home a report was lodged at the police station and next day her dead body was found lying in the bushes standing across the railway line. It was noticed that the underwear of the deceased was lying near the dead body and that there were bloodstains and tooth-mark on her cheek. The doctor who carried out post-mortem examination noticed that the deceased was in a school uniform and she stated that three doctors who had examined the dead body arrived at the conclusion that rape had been committed and the murder of the deceased was committed by pressing her nose and mouth and obstructing breath of the deceased. It was also noticed that there was a thin mark of a scratch on the upper portion of penis of the accused. According to the witnesses, the deceased was last seen in the company of the appellant. On appreciation of evidence the trial court convicted the appellant under Sections 302 and 376 IPC and sentenced him to death. The High Court confirmed the judgment and order passed by the trial court. The accused preferred the present appeal before the Supreme Court against the conviction and sentence. As regards the sentence it was submitted that the accused on the relevant day was less than 22 years and that even though the act is heinour, considering the fact that no injuries were found on the deceased, it is probable that death might have occurred because of gagging her mouth and nostrils by the accused at the time of incident so that she may not raise a hue and cry. The death, it was submitted, was accidental and an unintentional one. Allowing the appeal partly,

Held:

After going through the entire evidence it cannot be held that the High Court or the Sessions Court committed any error in appreciating the evidence led by the prosecution. Hence, the conviction of the appellant for the offence punishable under Sections 302 and 376 IPC is confirmed.”

18. The counsel for the appellant submits that in the instant case, there is no evidence in support of the charge of commission of rape with girl. It appears from the record, that neither the chemical analyst of the Forensic Science Laboratory at Agra found any sperm on the gunny bag material or the underwear material, as per his report nor the pathologist found any sperms in the slide of vaginal fluid, prepared at the time of post-mortem examination.

19. PW-4, Dr. R.N. Agarwal has not been examined on this point. Merely on the basis of absence of sperms, it cannot be held that rape had not been committed. As per Section 375 IPC, mere penetration is sufficient to constitute the sexual intercourse, necessary to the offence of rape. As per the medical report, since victim could not bear the impact of penetration of 33 years old man, therefore, her faecal matter had come out as a consequence thereof. When body was recovered from the room of the accused, in such a condition the lower part of the body was found naked as it was full of the blood. Blood was also found on the floor of the gunny bag.

20. After going through the entire evidences and settled principle of law, it cannot be held that court below committed any error in appreciating the evidence led by the prosecution. Hence, the conviction of the appellant for the offence punishable under Section 302 and 376 I.P.C. is confirmed. The jail appeal lacks merit and is accordingly dismissed.

21. The Registry is directed to sent the certified copy of the judgment and all original record of this case to the concerned court below for compliance.

22. The learned Amicus Curiae Ms. Rashmi Srivastava shall be paid Rs.5,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

Order Date :- 30.10.2017

Jitendra

(Chandra Dhari Singh,J.)  (Shri Narayan Shukla, J.)

 

 

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