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.