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Judgment
Rajive Bhalla, J.
The appellant challenges judgment and order dated 25.4.2006 passed by Additional Sessions Judge, Chandigarh convicting and sentencing the appellant in the following terms:-
PW1 Pappu son of Ram Rattan, resident of village Burail, Chandigarh, filed a report at Police Station, Sector 31, Union Territory, Chandigarh, at 4.00 P.M. on 29.1.2004 that his 10 year old daughter Meera is missing since 4.00 PM. PW1 Pappu stated that his daughter had gone to the adjoining forest to collect fuel wood, but has not returned and despite his best efforts, she is not traceable. The police flashed a wireless message to the control room. At about 7.00 A.M. on 30.1.2004, while Pappu and others were searching for his daughter, they discovered her dead body near the ganda nala in village Faidan. The police were informed and arrived at the spot, forwarded a ruqa, which led to registration of FIR No. 17 dated 31.1.2014 and commencement of investigation. PW5 SI Satnam Singh requisitioned the services of a photographer PW8 Mohinder Singh, who took photographs of the dead body. PW4 Surjit Singh appeared before SHO, Police Station Sector 31, Chandigarh on 1.2.2004, produced Naresh Dass before the police by stating that Naresh Dass has suffered an extra-judicial confession that he has murdered Meera by throttling her as she began raising noise, while he (Naresh Dass) was sexually assaulting her. Naresh Dass was arrested, on 1.2.2004, by the SHO, vide arrest and information memo Ex. P25, which bears the RTI of Bindo wife of Naresh Dass. The police searched the person of Naresh Dass and recorded memo Ex. P25, signed by Naresh Dass, ASI Nand Lal, S.I. Partap Singh, S.I. Phool Singh and the SHO. The police also recorded the statements of PW12 Raja Ram, a domestic servant, aged 9 years, PW13 Pintu, aged 13-14 years, a shepherd, who stated that they had gone to the forest on 29.1.2004 with Meera to collect fuel wood and while they were collecting fuel wood, the appellant arrived and told PW12 Raja Ram and PW13 Pintu to leave. They left immediately but Meera stayed behind with the appellant. The police forwarded the dead body for post mortem which disclosed that Meera had died of asphyxia by throttling.
On completion of investigation, a final report was presented before the Ilaqa Magistrate, who committed the case to the Court of Sessions. After committal of the case and finding a prima facie case, charges were framed against the appellant under Sections 302/376 read with Sections 511 and 201 of the Indian Penal Code, but as the appellant denied charges so framed, the prosecution was directed to adduce evidence to prove the appellant''s guilt.
The prosecution has examined PW1 Pappu son of Ram Rattan, aged 30 years, father of the deceased, who deposed that on 29.1.2004, Meera had gone to forest to collect fuel wood, but did not return and his attempts to find her were unsuccessful, but eventually he found her dead body near the ganda nala in the area of village Faidan at about 7.00 A.M. on 30.1.2004. PW2 is Head Constable Raj Pal, who tendered his affidavit, Ex. P19. PW3 is Dr. Adarsh Kumar, Senior Lecturer, Department of Forensic Medicine, GMCH, Sector 32, Chandigarh, who was a member of the Board of Doctors, that conducted postmortem on 31.1.2004 and opined that cause of death was asphyxia by throttling. PW4 is Surjit Singh son of Ujjagar Singh and an agriculturist in village Faidan who deposed about the extra judicial confession suffered by the appellant before him and is the person who produced the appellant before the police on 1.2.2004. PW5 Sub Inspector Satnam Singh is the Investigating Officer, who has deposed with respect to the investigation, identification of the dead body by Pappu, the inquest report, the post mortem, taking of photographs etc.
PW6 Constable Yash Paul has deposed with respect to preparation of the site plan Ex. P26. PW7 Sub Inspector Partap Singh has deposed that he was a member of the police party headed by Inspector Ram Gopal and deposed with respect to the investigation. PW8 Mohinder Singh, Police Photographer, deposed that he took photographs Ex. P2 to Ex. P9, of the dead body of a female child on 30.1.2004 and on 1.2.2004 took photographs Ex. P10 to Ex. P17. Their corresponding negatives are Ex. P2A to Ex. P2A/9 and Ex. P10/A to Ex. P17/A, respectively.
PW9 Head Constable Jaspal Singh proved DDRs Ex. P29 and Ex. P30.
PW 10 Dr. Sukh Raj medico-legally examined Naresh Dass appellant. PW11 is Inspector Ram Gopal, who completed the investigation, recorded the statement of PW4 Surjit Singh as well as the statements of PW 12 Raja Ram and PW13 Pintu.
PW12 Raja Ram son of Sone Lal, aged 9 years, deposed that he had last seen the appellant with the deceased and identified the deceased in photographs Ex. P2 to Ex. P3, Ex. P4, Ex. P6, Ex. P8 and Ex. P9 and also deposed that in photographs Ex. P13, Ex. P14 and Ex. P15 he and Pintu have been photographed along with the accused.
PW13 Pintu son of Maneshwar, aged 13-14 years, the other witness of last seen, identified the deceased in the aforesaid photographs and also deposed that he was photographed with Raja Ram with the accused and Raja Ram in the other photographs.
Upon conclusion of prosecution evidence, the incriminating circumstances appearing in the prosecution evidence, were put to the accused, under Section 313 of the Code of Criminal Procedure, who denied his involvement and pleaded false implication. The appellant appeared in defence as his own witness and deposed as DW1 that he does not work with PW4 Surjit Singh and has never met him. He has also deposed that he was beaten by the police and given electric shocks and was confined for four days.
After considering the evidence on record, the learned trial court convicted the appellant under Sections 302 and 201 of the Indian Penal Code for the murder of Meera. The trial court has primarily placed reliance upon the extra-judicial confession made before PW4 Surjit Singh, the statements by PW12 Raj Ram and PW13 Pintu, witnesses of last seen and the medical evidence.
Counsel for the appellant submits that the prosecution has not been able to prove any connection between PW4 Surjit Singh, witness of the alleged extra-judicial confession and the appellant. The statement by PW4 Surjit Singh that the appellant was his employee, is not supported by any evidence. The prosecution alleges that Surjit Singh produced the appellant before the police, but surprisingly, the arrest memo Ex. P25 is signed by Bindo wife of Naresh Dass. It is further argued that PW12 Raja Ram and PW13 Pintu are child witnesses who have admitted that the police asked them to identify the appellant. PW12 Raja Ram and PW13 Pintu have also admitted that they were photographed with the appellant in photographs, Exhibits P13, P14, P15 and P16 and, therefore, their identification of the appellant in court, is meaningless. It is further submitted that application for police remand does not refer to the extra-judicial confession or the statements made by PW12 Raja Ram and PW13 Pintu, thereby clearly proving that the evidence is concocted. The police had no evidence as to the person who had caused the death of Meera and therefore, foisted it upon the appellant, a poor man. It is further submitted that PW12 Raja Ram and PW13 Pintu have deposed that they saw the police party taking the appellant and, therefore, approached the police to make their statements. The photographs taken by PW8 Mohinder Singh, the police photographer, reveal that photographs, Ex. P13, Ex. P14 and Ex. P15 show these witnesses Raja Ram and Pintu, the appellant and other police officials. The photographs were taken on 30.1.2004, thereby proving that on 30.1.2004 the appellant was already in police custody. The police, thereafter, concocted statements by PW12 Raja Ram, PW13 Pintu and PW4 Surjit Singh about an extra judicial confession made by the appellants. Thus as it proved that the appellant was in police custody on 30.1.2004, the extra-judicial confession as well as the depositions by PW12 Raja Ram and PW13 Pintu, of last seen, are manufactured and should, therefore, be discarded.
Counsel for the Union Territory, Chandigarh, on the other hand, submits that the police have proved, from the extra-judicial confession suffered before PW4 Surjit Singh the manner in which the appellant throttled the deceased. The depositions by PW12 Raja Ram and PW13 Pintu, who last saw the appellant with the deceased, adds weight to the extra-judicial confession. The absence of any circumstance that may cast any doubt upon the aforesaid evidence, proves that the appellant has been rightly convicted and sentenced by the trial court. The photographer clicked photographs of the deceased on 30.1.2004 and after the appellant was arrested on 1.2.2004, clicked photographs Ex. P13, Ex. P14 and Ex. P15 showing the appellant, PW12 Raja Ram and PW13 Pintu and police officials. PW12 Raja Ram and PW13 Pintu, are, no doubt, child witnesses, but their depositions, cannot be discarded by referring to inconsequential contradictions. PW12 Raja Ram and PW13 Pintu having identified the appellant in the photographs, as well as in court, their depositions cannot be held to be procured.
We have heard counsel for the parties, perused the impugned judgment and appraised the entire evidence.
The appellant has been convicted for the murder of a ten year old girl and under Section 201 of the Indian Penal Code. The evidence adduced by the prosecution is circumstantial in nature and consists of medical evidence, an extra-judicial confession and evidence of last seen.
PW3 Dr. Adarsh Kumar, Senior Lecturer, Department of Forensic Medicine, GMCH, Sector 32, Chandigarh, was member of the board of doctors, that conducted postmortem on 31.1.2004 and found the following injuries:-
"1. 1.5 x 1 cm reddish abrasion present over middle of fore head 6 cm above bridge of nose.
2 x 0.5 cm reddish abrasion present over left side of fore head 1 cm above outer aspect of left eye brow.
1 x 0.5 cm reddish abrasion present near outer angle of left eye.
1 x 1 cm cutaneous abrasion reddish present over left side of face 4 cm from left angle of mouth over left jaw bone.
1.5 x 1 cm cutaneous reddish abrasion present 1 cm below left angle of jaw over left side of neck.
1 x 0.5 cm cutaneous reddish abrasion present 2 cm outer to injury No. 5 over left side of neck.
1 x 0.5 cm cutaneous reddish abrasion present vertically over left side of neck 4 cm below and 1 cm outer to injury No. 6.
Multiple abrasion with contused areas in between present over right side of neck in an area 4 x 1 cm running obliquely from right angle of jaw downwards and outwards."
The doctor opined that in the opinion of the board of doctors, the cause of death was asphyxia as a result of throttling, which was sufficient to cause death in the ordinary course of nature. The doctor proved a certified copy of the post mortem report Ex. P20 and identified the signatures of other members of the Board of Doctors. The doctor also proved pictorial diagram, Ex. P21 depicting the site of injuries. The medical evidence, therefore, proves that the cause of death is asphyxia as a result of throttling, thereby proving a homicidal death.
The prosecution was required to prove that the appellant murdered the minor girl. PW4 Surjit Singh has deposed that the appellant was working with him as a labourer. The appellant came to him in his fields and made a confession that on 29.1.2004 at about 4.00 P.M., he had gone to collect fire wood from a drain adjoining the fields. He came across a girl and two boys. The two boys left after collecting fire wood but the girl continued to collect fire wood. On finding the girl alone, he made a sexual advance towards her but the girl started raising noise. To prevent her from making any noise, he gagged her mouth, but as the girl kept on crying, he pressed her neck violently and as he was about to rape her, her eyes began protruding and she defecated and died. He, therefore, threw the dead body of girl in the nala and returned home. PW4 Surjit Singh has also deposed that the appellant wept before him and asked him to save him. Surjit Singh has deposed that when he was going to produce the appellant before the police he met Sub Inspector Phool Singh, in Sector 48, Chandigarh, produced the appellant and recorded his statement. PW4 Surjit Singh has denied during cross-examination that he is a procured witness. A perusal of the deposition by PW4 Surjit Singh reveals that the appellant has confessed to intricate details about the attempt to rape the deceased, act of pressing her neck, her cognate death and disposal of the dead body. A procured witness of an extra-judicial confession would not narrate the act of murder in such intricate details; persuades us to hold that his deposition inspires confidence. The fact that the prosecution may not have adduced evidence to prove that Naresh Dass was an employee of PW4 Surjit Singh or that his signatures are not available on the arrest and search memo, are inconsequential. An extrajudicial confession, if credible and inspiring confidence, may, of its own, be sufficient to form basis of a conviction. The fact that an extra-judicial confession is generally held to be weak evidence, is a rule of prudence, as relevance of an extra judicial confession would depend upon the facts of each case. We find no reason to doubt the credibility of PW4 Surjit Singh and his detailed deposits about the extra-judicial confession made by Naresh Dash made an extrajudicial confession before him on 29.1.2004, narrating intricate details.
Having accepted the extra-judicial confession, it would be appropriate to examine whether PW12 Raja Ram and PW13 Pintu son of Maneshwar, child witnesses, who have deposed that they last saw the appellant with the deceased can be believed. PW12 Raja Ram has deposed that they had gone to the forest with the deceased to collect fire wood. After some time, the appellant arrived and told them to go away. They left but the appellant and the deceased remained in the forest. PW12 Raja Ram identified the deceased in photographs, Ex. P2 to P9 and the appellant in Ex. P13, Ex. P14 and Ex. P15 where PW12 Raja Ram, PW13 Pintu and the appellant are shown standing at the place of recovery of the dead body. PW13 Pintu has deposed in consonance with the statement made by PW12 Raja Ram.
A question that arises from the depositions by these child witnesses is whether reliance should be placed upon their depositions. PW12 Raja Ram and PW13 Pintu, aged 9 and 13 years, respectively are witnesses who last saw the deceased alive with the appellant. PW12 Raja Ram and PW13 Pintu, have deposed in unison that they knew Meera as she used to go with them to the forest near Air Force Station, Chandigarh, to collect fuel wood and on one such day, the appellant also came to the forest. The appellant asked PW12 Raja Ram and PW13 Pintu, to leave but himself stayed back with Meera. PW12 Raja Ram and PW13 Pintu have also identified the deceased from photographs, Ex. P2 to Ex. P3, Ex. P4, Ex. P6, Ex. P8 and Ex. P9 and after seeing photographs, Ex. P13, Ex. P14 and Ex. P15 deposed that their photographs were taken along with the accused. A perusal of photographs, Ex. P13, Ex. P14 and Ex. P15 reveal that PW12 Raja Ram and PW13 Pintu are shown along with the appellant and the police, at the place, where the dead body was taken into possession. An argument that the depositions of child witnesses should be discarded as their depositions do not inspire confidence in view of contradictions in their depositions, does not merit acceptance. The deposition by a child witness, has to be recorded and then appraised carefully, but neither PW12 Raja Ram nor PW13 Pintu appear to be procured or tutored witnesses. The minor contradictions as to the exact place and time when they saw the appellant being led away by the police and then approached the police etc. do not, in any manner, detract from the essence of their depositions that they last saw the deceased alive with the appellant an evening before she was found dead in a drain in the forest. Another factor which persuades us to rely upon their depositions is that the police would not have produced children aged 9 and 13 years as witnesses if they had not actually last seen the appellant with the deceased. If the police intended to falsely implicate the appellant, it would not have been difficult for them to have procured a witness who could have easily deposed that he last saw the appellant with the deceased. We are, therefore, satisfied that the deposition by PW12 Raja Ram and PW13 Pintu, child witnesses, that they last saw the deceased alive with the appellant, can not be discarded.
A perusal of the evidence adduced on record, reveals that the prosecution has been able to prove by cogent evidence, namely, deposition of a witness as to an extra-judicial confession suffered by the appellant, which narrates the entire occurrence, in intricate detail, the depositions of two minor witnesses, who last saw the appellant alive in the forest with the deceased an evening before her dead body was discovered in a drain in the forest and the medical evidence, that the appellant was the perpetrator of the crime and it excludes any other theory or hypothesis as to the person who committed the murder of this minor girl, we find no reason to differ with the opinion recorded by the trial court.
Consequently, we affirm the judgment of conviction and order of sentence dated 25.4.2006 passed by Additional Sessions Judge, Chandigarh and dismiss the appeal.
Amol Rattan Singh, J.
I have read the judgement recorded by my learned brother Rajive Bhalla, J., but, with due respect, I am unable to agree with the opinion, particularly the dismissal of the appeal, for the following reasons:-
Firstly, even basic investigation is not seen to have been done by the investigating agency, to try and establish as to whether the person to whom an extra-judicial confession is stated to have been made, i.e. Surjit Singh (PW4), was actually the employer of the appellant or not. Simply, the version alleged to have been given by PW4 to the police, that the appellant came and confessed to him with regard to the crime and sought his protection, has been accepted by the police, presuming in the first place that any such relationship of master and servant existed and any confession on account of such relationship was made by the appellant before PW4.
The appellant, of course, in his statement under Section 313 Cr. P.C. as also in his testimony as his own defence witness, denied even knowing PW4 and stated that he was, as a matter of fact, working as a Sweeper "in houses".
Secondly, in this regard, it is strange that though the appellant is stated to have been arrested upon production by PW4 before the police in a crowded area, i.e. on a major road, in the day time, even the signatures of PW4 are not present on the arrest memo, thus casting a doubt with regard to the appellant having been arrested pursuant to his production by PW4, before the police. Still further, no independent witness is even shown to have been joined while making the arrest in a busy public place, especially as, when a person is arrested from such a place, obviously public commonly gathers to see such occurrence.
Thus, with not even an iota of evidence, even admittedly, having been produced or gathered by the investigating agency, to establish a relationship of master and servant between the appellant and PW4, the factum of any extra-judicial confession having been made by the appellant to PW4, becomes highly doubtful, as does, consequently, and the factum of his arrest having been caused by his production before the police by PW4.
Further, the other evidence against the appellant is the testimony of PWs12 and 13, i.e. Raja Ram and Pintu, two boys aged 9 and 12 years respectively, at the time of the occurrence.
No doubt, child witnesses can very much be believed, if the Court is satisfied that they are fully conscious and alive to the facts to which they seek to testify and with regard to the honesty of an untutored testimony by such child witnesses. However, even accepting, though in the face of facts, not fully believing, certain parts of the testimonies of these witnesses, what eventually emerges is that, even accepting the major parts of their testimonies as being truthful, they are witnesses of the appellant being last seen with the deceased. As to whether it was he who actually committed the crime or some other person, who found a lone minor girl and assaulted her and then throttled her neck, is something which is wholly un-established.
Apart from that, the testimony of PW12, Raja Ram, that he saw a funeral procession and simply followed it and upon reaching the cremation ground he saw that the dead body being cremated to be that of the deceased girl, Meera, is not a fully believable story in my opinion, as, unless, the nine year old boy positively knew that it was indeed his friend/acquaintance, who was being carried to the cremation ground, it is unlikely that he would simply follow the funeral procession to the cremation ground.
The testimony of PW13, Pintu, that thereafter also, he and PW12 happened to be present at the "chowk" (road intersection) of Sector-47, near a liquor vend, when they saw a police party with the accused being taken away, is another incident which, seen along with what has been stated hereinabove, is too co-incidental in my opinion. As per PW13, he and PW12 went to the SHO and told him that it was the appellant who remained behind with Meera on the previous day, when they were collecting fire-wood and they had left Meera and him together.
Thus, at least some amount of tutoring of the child witnesses, cannot be ruled out. Again, to repeat, even accepting that the tutoring was only to a certain extent and not complete tutoring with regard to them having seen the appellant with the deceased, in my opinion, still does not alter the fact that other than the appellant having been last seen with the deceased, there was no firm evidence of his having actually assaulted and killed her.
Though the forensic report states that semen was "analysis" (sic) (found on analysis), on the vaginal swab, no DNA connection was even attempted to be established with the blood sample of the appellant.
Keeping in view the above, even though an extremely dastardly crime has been committed, snuffing out the life of a young child, it is difficult, in the absence of absolutely convincing evidence of the appellants'' guilt, to uphold his conviction.
As a result, granting the benefit of doubt to the appellant, I would acquit him of the charges framed against him, for the offences punishable under Sections 302 and 376 of the IPC read with Section 511 thereof and Section 201 of the said Code.
As a matter of fact, to ensure that heinous crimes are taken to a logical conclusion by ensuring that a person does not get acquitted on benefit of doubt, or erroneously convicted, simply because of the investigating agency not having adopted even basic "scientific" methods of investigation, such as DNA testing and properly preserving blood/semen/fingerprint samples taken, or because of the police not taking such samples, mandatory provisions need to be introduced to ensure that such basic investigative methods are followed by the investigating agency and samples taken are preserved by technology as is easily now available.