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Judgment
Aftab Alam, J.—Sudhir Mahto, Appellant in Cr. Appeal No. 367 of 2000 and Mithilesh Mahto and Bhola Mahto, Appellants in Cr. Appeal No. 465 of 2000 are before this Court against the common judgment and order, dated July 31, 2000 passed by the 2nd Addl. Sessions Judge, Barh in Sessions Trial No. 1089 of 1998. The three Appellants were found, by the trial court, guilty of committing gang-rape and then killing the victim, a nine year child by strangulation. They were given two life terms for the two offences which were directed to run concurrently.
According to the prosecution case, on 6.2.1998 at about 11 in the morning the victim Punam Kumari had gone from her house to the fields at Kanhaipur Tal (at a distance of 1 1/2 KMs from the house) for planting onion seedlings over a piece of land cultivated by her father on Patta. At about 3 in the afternoon her mother Manti Devi (PW2) went to the field with her meal and some more seedlings. There she did not find her daughter Punam Kumari though her chappal, shawl and Thali were lying around. When she was unable to find her she came back to the village and went to her husband at his barber''s shop. She reported to him that their daughter was missing and her shawl, chappal etc. ware lying in the field. Then the victim''s father Kaushal Thakur (PW 4) and a number of villagers went out in search of the girl. Near the field from where the girl was missing the search party met a co-villager who was dumb. By the witnesses examined in the case, he is described as the son of Soren Mahto or simply as Gunga (the dumb). He was cutting grass there. Unable to speak, he tried to communicate with them by making signs. As we shall see later, some members of the search party interpreted him to say that he had seen three persons fleeing in the direction of west or north-west; some other members of the search party interpreted the signs made by him to mean that he had seen three persons taking away the child towards west or north-west. According to the victim''s father, PW 4 he had shown three fingers and made the gesture indicating that there were three persons (fleeing away or carrying away the victim girl). He further deposed in court, and he had said it earlier in his fard-e-bayan too that the search party also came across Sheo Narain Mistri (PW 7) who advised them to look for the girl in the rye field. (Sheo Narain Mistri who was examined as PW 7 though turned hostile and denied having made any such-statement before the search party or the police). Finally the dead body of the child was found in the field of Ram Swaroop in which rye was planted. There were signs of bleeding from her nose and private parts and her neck appeared to be twisted. It seemed that she was raped by 2-3 persons and was then killed by strangulating her neck. Her body was brought to the village and was kept in front of the house of Ram Pd. Mahto where the police came and took the statement of her father Kaushal Thakur at 11.45 p.m. on the same day. In his statement, that was recorded as fard-e-bayan (Ext. 3) the victim''s father plainly said that he had not seen anyone committing the offence. He further said that close to the place of occurrence there was the boring of Janardan Mahto of Kanhaipur where people stayed all the time, implying that anyone coming to Janardan Mahto''s boring might have witnessed the occurrence and might make a statement in that connection. On the basis of the fard-e-bayan a formal F.I.R. (Ext. 4) was drawn up on 7.2.1998 at 3.30 a.m. giving rise to Mokameh P.S. Case No. 21 of 1998.
Though the F.I.R. was recorded in the early hours of 7.2.1998, it appears to have been received in court on 10JM998. And there is no explanation whatsoever for this delay in sending the F.I.R. to the court.
On the day following the occurrence one Surendra Thakur (PW 1) appears to have made a statement before the I.O. saying that on 6.2.1998 at about 2 he had gone to watch his field. There he had the urge for defecating. After relieving himself in the fields, he went to the boring of Ambika Pandit for washing his hand. There he saw the three Appellants. Bhola Mahto (Appellant No. 2 in Cr. Appeal No. 465 of 2000) and Sudhir Mahto (the Appellant in Cr. Appeal No. 367 of 2000) were washing their genitals and Mithilesh Mahto (Appellant No. 1 in Cr. Appeal No. 465 of 2000) was washing his lungi which had blood stains on it.
It is noted above that though the F.I.R. was instituted on 7.2.1998, it was not received, in court till 10.2.1998. It appears that in the mean while the mother of the victim felt that the case was not being investigated properly and the police was helping the offenders and on 9.2.1998 a petition was filed on her behalf in the court of Addl. C.J.M., Barh. In that petition, it was stated that some criminals in the village had committed rape on her nine year old child and after killing her had left her corpse in the field of Nand Mahto, son of Ram Swaroop Mahto where rye was planted; that it was absolutely clear from the post mortem report that before being killed the child was raped and though the case was instituted on 6.2.1998, the police was not investigating the case properly and was trying to shield the offenders. Even the copy of the F.I.R. was not received in court (till the time of filing the petition). It was stated that one Deonandan Thakur (later examined before the trial court as PW 10) and some others were the witnesses of the case and they were ready to give their evidences.
It is significant to note that in this petition filed on behalf of the mother of the victim on 9.2.1998, no one, including the three Appellants, are identified as accused and the only person named as one of the witnesses having some knowledge about the occurrence is Deonandan Thakur. It is thus, clear that though the police recorded the statement of Surendra Thakur, PW 1 on 7.2.1998, the names of the three Appellants'' as accused had not surfaced till the filing of the petition on behalf of the victim''s mother on 9.2.1998.
It may also be noted here that post mortem over the body of the victim child was held on 7.2.1998 at 10.20 AM by a three-member Board, comprising Dr. Geeta Rani Shrivastava, PW 12, Dr. Nagina Paswan, PW 13 and Dr. J.P. Ranjan who was not examined before the trial court. The post mortem report showed that the child was brutally raped before she was strangulated to death. What is of significance is that the doctors holding post mortem found two black hairs (foreign body) on the labia majora of the victim. The two hairs, preserved in a vial, were handed over to the police. Later on when the three Appellants were taken into custody, three pubic hairs from each of them were collected and obtained through Dr. Nagina Paswan (one of the doctors doing postmortem). The vial containing the two hairs recovered from, the genitals of the victim was marked as ''A'' and the vials containing the pubic hairs of Appellants Bhola Mahto, Sudhir Mahto and Mithilesh Mahto were marked as ''B'' ''C'' and ''D'' respectively. The four vials were sent to the Forensic Science Laboratory, Bihar, Patna for comparison and report. The samples were received in the office of the Director on 18.5.1998. The report from the Laboratory, dated 15.2.2000 was received only at the fag end of the trial and then the defence got it marked as exhibit (E) on 22.5.2000. The Forensic Science Laboratory took more than a year and half to make the momentous declaration that all the four vials contained human hairs. As regards comparison of the hairs of the Appellants contained in vials ''B'', ''C'' and ''D'' with the two hairs in vial ''A'' the Forensic Science Laboratory was unable to give any information on ground of insufficiency of samples. In other words, the Forensic Science Laboratory took more than a year and half to say that the samples were insufficient and, therefore, it was not possible for it to give any meaningful report.
In the mean while the case was investigated by one Ramesh Kumar Mishra who at the material time was a Sub-Inspector posted at Mokameh PS. It was supervised by the S.D.P.O. Barh and the Supdt. of Police, Rural, Patna and on the basis of the directions given by them, charge sheet was submitted against the three Appellants.
Before the trial court, fourteen witnesses were examined on behalf of the prosecution. PWs. 7, 8 and 9 deposed in court that they did not know anything about the occurrence. They were declared hostile by the prosecution. PW 11 too is of no significance. He said that he had heard that Punam was killed after being subjected to rape. PW 2 is the mother of the victim. She also is of no help to the prosecution and in her deposition there is no mention of any accused who might have committed the crime. PW 3 was the Sarpanch of Kanhaipur Gram Panchayat and PW 4 is the father of the victim girl. They, along with PWs. 5 and 6, were members of the party that had gone out in search of the girl. PW 1 Surendra Kumar is a cousin of the informant and, according to his deposition, a little after 2 p.m. on the date of occurrence he had seen the three Appellants on the boring of Ambika Pandit; Appellants Bhola Mahto and Sudhir Mahto were washing their genitals and Appellant Mithilesh Mahto was washing his bloodstained lungi. PW 10 is Deonandan Thakur who was named as a witness in the petition filed on behalf of the victim''s mother before the A.C.J.M. Barh on 9.2.1998. He deposed before the trial court that at about 2 PM on the date of occurrence he had seen three persons near the field of Ram Swaroop (in which the dead body of the girl was finally found). But he names three persons other than the Appellants. PWs 12 and 13 were members of the medical board that held post mortem over the body of the child and PW 14 is the I.O.
The evidences of PWs 12 and 13 Dr. Geeta Rani Srivastaya and Dr. Nagina Paswan and the post mortem report (Ext. 2) leave no room for doubt that Punam Kumari was brutally subjected to multiple rape before she was killed by pressing her neck. The post mortem report recorded the following findings:
External (injuries) - (1) Scratch on the antero-lateral surface of neck left side - two in number (nail scratch).
(2) Erythematous patches on the back of chest, hip and back of thigh.
(3) Faecal matter around the anus and hip.
(4) Breast undeveloped.
On examination of vagina: (1) Pubic hair absent (not developed).
(2) Foreign body hair present on the labia majora; black in colour-two in number which was preserved.
(3) Bleeding from vagina.
(4) Complete tear of hymen and posterior part of whole vagina.
(5) Vagina swab taken from inner part of vegina.
On pathological examination vaginal swab examined under microscope-dead spermatozoa found. R.B.C. and W.B.C. cells found.
On dissection: skull - scalp bones intact, brain matter and meninges intact
Neck - Trachea compressed.
Chest and abdomen-lungs-congested, Heart-Blood present, Stomachy digested food, spleen, liver, kidney were, pale. Small and large guts full of gases and faecal matter.
Time elasped since death-within 24 hours.
Cause of death-asphyxia due to strangulation. Rape committed before death by number of persons.
The question now to be examined is regarding the complicity of the three Appellants in the commission of the offence. In this regard, the court has to depend on the evidences of PWs 3 to 6, PW 1, PW 10 and the I.O., PW 14.
PWs 3 to 6 were the members of the search party and their statements before the trial court, apart from some minor variations, are the same. The fact about the girl being missing was reported to. her father, PW 4, by his wife, PW 2. Then he along with a number of persons went out to the fields in her search. On reaching the field they found her Shawl, chappal and Thali lying around. A dumb boy indicated by signs that three persons had taken her towards north west. PWs 3 and 5 interpreted the signs made by the dumb person to mean that he had seen three persons fleeing away from the field towards west. But PWs 4 and 6 took him to mean that three persons had taken away the girl towards north west. He had made the indication by showing three fingers. They were looking around for the girl when, according to PW 4, Sheo Narain Mistri advised to look in the rye field Sheo Narain Mistri who was examined as PW 7 stated that he had not seen the girl, that he had not gone in search (of the girl) and that he had not given any statement to the police. He was declared hostile. The other witnesses of the search party, PWs 3, 5 and 16 simply said that the dead body of the girl was found in the field of Ram Swaroop in which rye was planted. She was bleeding from nose and her private parts.
On the basis of the evidences of PWs 3-6, all that can be said is that the search party had come across a dumb person from the village who by signs had Vindicated that there were three persons whom he had either seen fleeing away or carrying away the girl towards the north west.
I next come to PW 1, Surendra Thakur on whose testimony the prosecution case appears to rest. He stated before the court that on 6.2.1998 (the date of occurrence) at about 2 PM he had gone to watch his field at village Kanhaipur, Nigarpar Khanda. There he had the urge for defecating and after relieving himself he went to the boring of Ambika Pandit for washing his hands. There he saw Bhola Mahto, Sudhir Mahto washing their genitals and Mithilesh Mahto washing his lungi which was smeared with blood. The three Appellants on seeing him got startled and frightened and took an aggressive posture. He also became frightened and went back to his home. At 7 PM on hearing the sound of wailing, he came to learn that Punam Kumari, daughter of Kaushal Thakur was killed after being subjected to rape. In cross-examination he said that after returning from the boring of Ambika Pandit though he admittedly remained at his house all along and though at about 7 p.m. he came to learn that the girl was killed after being subjected to rape, he did not tell anyone about his encounter with the accused. He is a cousin of the informant and practically his next door neighbour. But he did not come out of his house when the body of the girl was brought from the field and was kept in front of the house of Ram Pd. Mahto where the fard-e-bayan of her father was recorded at 11.45 p.m. He also admitted in his cross examination that on 6.2.1998 the boring of Ambika Pandit was not running (drawing water) but he said that there was a tank attached to the boring.
Then we have PW 10 and honestly speaking, I fail to see why was he examined on behalf of the prosecution. He stated before the court that on the date of occurrence at about 2 PM he was going to Moasa Sheikhpura. When he reached near the field of Ram Swaroop (in which the dead body of the girl was found) on the south west of the village, he saw Bhimsen Mahto, Dharmendra Mahto and Dilip Mahto. On seeing him they sat down for urinating. He proceeded on his way. On returning he came to learn that Punam Kumari, the nine year old daughter of Kaushal Thakur was killed after being raped.
The last witness that remains is the I.O. and the less said the better about him. I have come across many cases in which the police investigation left much to be desired but on the point of investigation this case appears to be one of the worst. In his deposition before the court the I.O. simply confirmed that he had taken the statement of PW 2 on 7.2.1998. He further said that he had taken the statement of Deo Nandan Thakur also on 7.2.1998.
This completes the prosecution evidence. Strangely the dumb person (son of Soren Mahto) was not examined as a witness before the court.
From what is stated above it is evident that the case against the Appellants is based on circumstantial evidence.
The principle for basing a conviction on circumstantial evidences is by now well settled. In Tanviben Pankaj Kumar Divetia Vs. State of Gujarat, it was observed (in para 45 of the judgment) as follows:
The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances get snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. Jaharlal Das v. State of Orissa.
It is, thus, to be seen that a conviction on circumstantial evidences must satisfy a two fold test. One that the circumstance or each of the circumstances pointing to the guilt of the accused must be established beyond reasonable doubt and the other that the different circumstances must make a complete chain of events so as to rule out a reasonable likelihood of the innocence of the accused.
In this case there are two circumstances against the Appellants which may be stated thus: (i) The witnesses that had gone out in search of the girl had come across near the P.O. a dumb person (son of Soren Mahto) who, had indicated by showing three fingers that there were three persons whom he had either seen fleeing away from the field or carrying away the girl towards north-west. It is to be borne in mind that the dumb person himself was no examined as a witness in court, (ii) Around, the time the offence was committed, the three Appellants were seen at the boring of Ambika Pandit, two of them washing their genitals'' and the third washing his lungi which had blood smeared on it. The sole and circumstance is supported by the sole, testimony of PW 1.
Mr. T.K. Jha, senior Advocate appearing for the Appellants strongly argued that PW 1 was not a reliable witness and his testimony was not fit to be accepted. Mr. Jha pointed out that PW 1 was admittedly the cousin of the victim''s father PW 4-informant. At the time PW 1 had gone there, the boring was not running (drawing water) and it was, therefore, quite unbelievable that the Appellants should go there for washing. Mr. Jha further pointed out that the fact that he remained silent all through the evening and the night made his statement highly suspicious. In course of cross examination, he admitted that on his way back from the boring to his house, he met a number of persons. He did not speak about his encounter with the Appellants to them. On coming to his house, he did not say about it to any member of the family. That might have been understandable. But according to his own statement at about seven in the evening he came to learn about the girl being raped and killed and yet he did not disclose this fact to any ,one. Her did not come out of his house and went to the informant''s (his cousin''s) family to tell them about his encounter with the Appellants at the pump house. In the fard-ye-bayan recorded at 11.45 p.m. there was Dip mention of the Appellants or of PW 1 feeing them at the pump house. Mr. Jha Submitted that the conduct of PW 1 was plainly contrary to the normal and natural Puman behavior and his testimony was not corroborated by any other witness or any other circumstance. According to him, therefore, even the first requirement of the twin tests in regard to circumstantial evidences was not satisfied in this case.
Mr. Jha further contended strongly that in this case the second test in regard circumstantial evidences remained equally unsatisfied. He submitted that the one and the only circumstance that the two Appellants were seen washing their genitals and the 3rd washing his lungi which is laid to be blood stained, around the time he offence was committed could not lead to the only conclusion that the Appellants had committed the offence.
I feel that the submissions of Mr. Jha are not without substance. The fact that though he admittedly came to learn at about 7 in the evening that the girl was raped and killed, PW 1 did not say to anyone about his encounter with the Appellants throughout the evening and the night really appears to be abnormal and this undoubtedly somewhat weakens his testimony.
Also, the only circumstance that the Appellants were seen at the boring, two of them washing their genitals and the 3rd washing his blood stained lungi, though creates a strong suspicion, it does not lead to the un-escapable conclusion that it was the Appellants who had committed the offence.
At this stage it may also be noted that the testimony of Deonandan Thakur, PW 10 further raises some doubt in regard to the Appellants'' connection with the offence. It may be recalled that in the protest petition filed by the mother of the victim on 9.2.1998 (three days after the commission of the offence) the only witness named by her as having some knowledge of the offence was Deonandan Thakur. He, when examined in court as PW 10, named another set of three persons whom he had seen loitering near the P.O. around the time of commission of the offence. The introduction of the three other persons at the same time near the place or occurrence creates some doubt about the Appellants'' connection with the offence.
On a careful consideration of the entire materials on record and the submissions made by Mr. Jha appearing for the Appellants and Mr. G.R Jaiswal, learned Addl. P.P., I am of the view that though there might be some suspicion against the Appellants, it would be highly unsafe to sustain their conviction and sentence on the basis of the materials on record and I feel that the Appellants are entitled to the benefit of doubt.
This Court is acutely conscious that a heinous crime in which a nine year old child was brutalised and killed goes unpunished and this Court feels very unhappy with the way the investigation was made by the police and trial was conducted on behalf of the prosecution. This Court would be failing in its duty if it does not express and put on record its strongest. disapproval of the manner in which the investigation was made by the police. This Court also finds that in this case the Forensic Science Laboratory has conducted itself in a highly reprehensible manner.
There is precious little to say about what the Investigating Officer(s) did in the case. But there is a long list of what they did not do. 1 would like to record here some of the serious omissions and irregularities committed by the police in the investigation of the case:
(i) Though the fard-e-bayan was recorded at 11.45 PM on 6.2.1998 and the formal F.I.R. was drawn up at 3.30 AM on the following day, it was sent to the court after three days on 10.2.1998. There is no explanation for this delay.
(ii) The I.O. did not seize the blood stained earth from the field of Ramswaroop where the dead body of the victim girl was found. The I.O. did not prepare a sketch map of the place of occurrence and a number of borings in its vicinity to show the distance between the point where the dead body of the girl was found and the boring of Ambika Pandit where the Appellants were seen by PW 1.
(iii) The I.O. did not examine the boring of Ambika Pandit and did not check and verify whether there was a water tank and whether it contained any water for washing etc. on the date of occurrence.
(iv) The I.O. did not examine the dumb person and record any signs that he might have made to say what he saw. This Court finds it specially surprising that though the case was supervised by the Sub-divisional Police Officer and even by the Supdt. of Police (Rural), Patna, it did not occur to anyone to have the suspects identified by the dumb person by putting them on a T.I. Parade. If the three Appellants and the other three persons named by P.W.10 were put on T.I. parade by placing them among, a number of known co-villagers and some other unknown persons, the dumb person could have easily identified the persons he had seen fleeing away from the P.O. or carrying away the girl and that should have been a clinching piece of evidence.
(v) It is also surprising that the dumb person was not even examined as a witness in court and the prosecution lost the chance of getting the Appellants identified by him even before the court.
(vi) The most reprehensible of al appears to be the manner in which the authorities in the Forensic Science Laboratory conducted themselves. They took; about two years to say that no report could be given on the material points due to insufficiency of samples. The court fails to see how the samples could be said to be insufficient and in case the samples were insufficient, why the Forensic Science Laboratory did not say so within a week or ten days of receiving the samples when further samples could have been collected from the Appellants. The manner in which and the time at which the report was submitted gives rise to the suspicion that it was, procured from the Forensic Science Laboratory at the behest of the defence.
Had the investigating agency acted with normal prudence, this heinous offence perhaps would not have gone unpunished.
On the basis of the discussion made above, the court feels constrained that extend the benefit of doubt to the time Appellants and to set aside the judgment and order passed by the trial court convicting and sentencing them as noted above.
In the result, the two appeals are allowed and the three Appellants are directed to be released in case they are not wanted in connection with any other case.
B.K. Jha, J.
I agree.