Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)
1. Heard Mrs. Archana Singh, learned Amicus Curiae, for the appellant and Sri Krishna Pahal, learned Additional Advocate General assisted by Km. Meena, learned A.G.A. for the State.
2. This jail appeal has been filed against the judgment and order of conviction dated 31.3.2009 passed by Additional Sessions Judge/Special Judge (E.C. Act), Meerut in Sessions Trial No. 1118 of 2008 arising out of Case Crime No. 96 of 2008 under Sections 302, 201, 377 and 511 I.P.C., Police Station Lal Kurti, district Meerut whereby the appellant has been convicted and sentenced with life imprisonment and fine of Rs. 5000/- for the offence under Section 302 I.P.C. and to undergo imprisonment of three years and to pay fine of Rs. 5000/- for the offence under Section 201 I.P.C. In case of default in payment of fine, the appellant has to further undergo imprisonment of six months. All the sentences are directed to run concurrently. However, the appellant has been acquitted of the offence under Sections 377 and 511 I.P.C.
3. The factual matrix of case, as emanated from the evidence available on record, are that on 31.3.2008 at 11.00 A.M. an information at Police Station Lal Kurti, district Meerut was given by one Jaswant Singh (P.W. 3) about an unknown dead body, lying in naked condition inside the Nala (gutter) in front of a shop. On receiving the information, the police proceeded to the spot and found the dead body of a young boy aged about 12-13 years. The inquest proceedings were conducted and the body was sent for post-mortem. Alongwith the dead body the police also recovered one plastic rope, white polythene sheet wrapped on the dead body, 3 black pants and one T-shirt blue and black in colour, 2 pieces of foam having jute in corners, one piece of tube light and one yellow coloured piece of cloth having blood stains all over it. The photograph of the dead body was published in the newspaper, seeing which the family members of the deceased reached at the mortuary where the dead body had been kept and identified the dead body as of Suraj, son of Razia (P.W. 1). The clothes recovered with the dead body were also identified by the family members as of the deceased and of the accused/ appellant Shyam Dhanak. After post-mortem the dead body was cremated. The recovery memos of all the incriminating articles recovered with the dead body were prepared.
4. The following ante mortem injury was found on the dead body :-
1. Lacerated wound 4 cms. x 2 cms. x bone deep on the left side of head. Brain matter coming out from the wound. Left parietal bone was found fractured. Haematoma was also found.
5. The deceased was found to be aged about 13 years at the time of his death. The cause of death was 'coma' as a result of ante-mortem injury.
6. The Investigating Officer inspected the spot, prepared the site plan (Ext. Ka. 9) and recorded the statements of the witnesses, who informed that the deceased had gone to watch TV at the house of accused-appellant Shyam Dhanak on the fateful night.
7. On 9.4.2008 the accused-appellant Shyam Dhanak was arrested by the police, who confessed his guilt and disclosed that Suraj had come to his house to watch TV. He (the accused) was under the influence of liquor at that time. He intended to fulfil his unnatural lust and asked Suraj for it to which Suraj denied. He again tried for it and caressed his back to which Suraj resisted once again. On this, he got so furiated that he hit the baseball bat on the head of Suraj with full force. As a result Suraj died on the spot. Thereafter, the appellant wiped the blood by the pant and shirt of Suraj and after covering the head of Suraj by his pant, he wrapped it by a white polythene and tied a plastic rope around it. For concealing the dead body, he threw it in the Nala of "paith" area. The appellant took the police to the godown of Jai Ganga Water Solution, Govind Plaza, where he was doing job and at his instance, the police recovered the broken baseball bat, a piece of foam having jute at its corners and a blanket.
8. All the incriminating articles recovered by the police, were sent for forensic examination at Forensic Science Lab, Agra and according to the report received from Forensic Science Lab, Agra human blood was found on the baseball bat, foam and jute. However, no blood or semen was found on the blanket. Ultimately the investigation culminated into filing of chargesheet against the appellant under Sections 302, 201, 377 read with 511 I.P.C, in the court of C.J.M., Meerut.
9. The case was committed to the court of sessions, where charges under sections 302, 201, 377/ 511 I.P.C. were framed against the appellant who denied from the charges and claimed to be tried.
10. The prosecution in order to prove its case examined 11 witnesses in all including 6 witnesses of fact and 5 formal witnesses. A brief description of which is as follows :-
11. P.W. 1 is Razia who is mother of the deceased.
12. P.W. 2 Ramji Lal is maternal uncle of the deceased who, after seeing the photograph of dead body in the newspaper has informed the family members of the deceased about the death of Suraj and has accompanied the family members to the mortuary for identification of the dead body.
13. P.W. 3 is Jaswant Singh who has given the written report to the police informing about an unknown body lying in the Nala.
14. P.W. 4 is Constable Clerk Satyaveer Singh who was present at P.S. Lal Kurti at the time when the family members of deceased Suraj had gone there to identify the clothes recovered with the dead body. He has made relevant entries about the aforesaid facts in the General Diary and has duly proved its carbon copy as Ext. K. 3.
15. P.W. 5 is Rani, who is aunt of the deceased Suraj.
16. P.W. 6 is Murari, who has seen the appellant coming from the side of Nala alongwith a "Thela" in the mid night.
17. P.W. 7 is Dr. N.. Gupta who has conducted the autopsy.
18. P.W. 8 is Con. Jagdish Prasad who has registered the case and has made relevant entries in the General Diary.
19. P.W. 9 is the Investigating Officer Ashok Kumar Rawat. He has prepared the site plan (Ext. Ka. 9) and has arrested the appellant on 9.4.2008. He has recovered the incriminating articles including the baseball bat, piece of foam with jute and one blanket, at the instance of appellant and has prepared the recovery memos. All these incriminating articles were produced before the court during his examination.
20. P.W. 10 is the second Investigating Officer who has sent the recovered articles to Forensic Science Lab, Agra and has submitted the chargesheet (Ext. Ka. 11) against the appellant.
21. P.W. 11 is Sub Inspector Umesh Kumar Singh who has conducted the inquest proceedings after recovery of the dead body and has sent the dead body for post-mortem after necessary documentation. He was also present with the police team at the time, when the incriminating articles were recovered from the godown at the instance of the appellant.
22. After conclusion of the prosecution evidence, the statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he denied from all the charges and expressed his ignorance about the recovery of dead body and other incriminating articles from Nala. He denied from the fact that police ever recovered any incriminating article on his pointing out from the godown of Jai Ganga Water Solution and alleged that the police arrested him while he was supplying water near Chhipi tank and falsely implicated in this case. However, no evidence in his defence was produced by the appellant.
23. The learned trial court on the basis of the evidence adduced by the prosecution and after hearing learned counsel for the parties returned the judgment of conviction which is under challenge in this appeal.
24. Learned Amicus Curiae appearing for the appellant contends that the present case is based on circumstantial evidence and the chain of circumstance is incomplete. The appellant is not named in the F.I.R. and there is no evidence against him except that the clothes recovered with the dead body were identified as of the appellant by the relatives of the deceased. Learned Amicus Curiae has contended that the appellant in his statement under Section 313 Cr.P.C. has clearly stated that the clothes which were said to have been recovered and shown to the witness, did not belong to him. It is further contended that in reply to question no. 5, the appellant has clearly stated that he does not have any TV. Therefore, the prosecution story that the deceased Suraj had gone to his house just before his death for watching TV appears totally false and baseless.
25. Learned Amicus Curiae has further contended that the prosecution story with regard to offence under Sections 377/511 I.P.C. has been found unreliable and doubtful by the learned trial court, and as a result the appellant has been acquitted from the charges under Sections 377/511 I.P.C. In view of the aforesaid fact, the motive, which is a very important link in the chain of circumstances, fails.
26. Learned Amicus Curiae has also pointed out towards some contradictions occurring in the statements of witnesses. For example P.W. 1 Razia, who is the mother of the deceased, has denied the fact during her cross-examination that she had left her son (deceased Suraj) in the care of any of her relatives, instead she has stated that she had gone to Khair without informing any one. To the contrary P.W. 5 Rani has stated that Razia had gone to Khair leaving Suraj in her custody. It is further contended that there is material discrepancy between the description of colour of clothes recovered from the dead body and the clothes produced in the court.
27. Learned Amicus Curiae has further contended that as per settled legal principle, unless all the circumstances are of such nature so as to point out only towards the guilt of the accused, leaving no place for any other hypothesis, the conviction of an accused in a case of based on circumstantial evidences is neither safe nor proper. It is contended that only on the basis of clothes which were shown to the witnesses, the appellant has been falsely implicated and there is nothing on record to connect the appellant with the complicity of the alleged offence. It is further contended that all the witnesses of fact are close relatives and are highly interested witnesses therefore, their statements should not have been relied upon to convict the appellant. Therefore, it has been prayed that the impugned judgment of conviction be set aside and the appeal be allowed.
28. Per contra, learned AGA has vehemently contended that all the circumstances in this case are well established. They form a complete chain having no links missing. Learned A.G.A. has contended that all the witnesses of fact in this case are illiterate and very poor villagers who earn their livelihood either by begging or by doing job of "Mochi". Therefore, some minor contradictions were natural to occur in their statements while facing the questions put to them by the learned defence lawyer and those minor discrepancies should be ignored.
29. Learned A.G.A. has further contended that only on the basis of fact that the appellant has been acquitted of the charges under Sections 377/511 I.P.C., it cannot be said that there was no motive with the appellant. It is contended that , the appellant had the intention to commit unnatural sex with the boy, but due to resistance by the deceased, he failed to do so and out of sheer anger, he inflicted the fatal injury on the head of the deceased. The trial court acquitted the appellant from the charges under Sections 377/511 I.P.C. on the basis of the fact that neither any injury was found on the anus of the deceased nor any spot of semen was found on the clothes or blanket. Learned A.G.A. has contended that the prosecution story itself clearly shows that when the appellant did not succeed in satisfying his unnatural lust, as the deceased had denied and resisted, he inflicted the baseball bat on the head of the deceased with such a force that it caused fracture in his parietal bone and brain matter came out. The aforesaid circumstances clearly show that appellant was not successful in committing sodomy. Therefore, no injury or the semen was found on the body of the victim. Learned AGA has contended that under the aforesaid circumstances, it cannot be said that there was no motive with the appellant for committing the offence.
30. Learned A.G.A. has next contended that P.W. 6 Murari has seen the appellant when the appellant was returning with a trolly "Thela" after throwing the dead body in the gutter at night. P.W. 5 Rani has categorically stated that the deceased had gone to watch TV in the house of appellant after informing her. Both these witnesses i.e. P.W. 5 and P.W. 6 have no enmity with the appellant.
31. Learned A.G.A. has lastly contended that the appellant being the resident of the same locality is well acquainted to all the witnesses,. Hence there was no question of mistaken identity. Learned trial court has right convicted the appellant by the judgment impugned which needs no interference in this appeal.
32. Having considered the rival submissions advanced by learned counsel for both the parties and on a careful scrutiny of the evidence available on record it appears that in the present case no one has seen the occurrence and the prosecution case rests entirely on circumstantial evidence.
33. The law as laid down by Hon'ble Supreme Court in respect of the cases based on circumstantial evidence is well settled by a catena of judgments.
34. In the case of Rohtash Kumar Vs. State of Haryana, (2013)14 SCC 434 the Apex Court has reiterated the law as follows:-
"The court while convicting a person on the basis of circumstantial evidence, must apply the following principles:
(i) The prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weakness in the defence put up by the accused.
(ii) The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be a conclusive in nature and must exclude all possible hypothesis, except the one to be proved.
(iii) Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused."
35. Now testing the facts of the present case on the touch stone of the aforesaid guidelines, it is evident that the mother of the deceased was not present on the fateful night, as she had gone to "Khair." The aunt of victim namely Rani, who has been examined as P.W. 5, has stated as follows :-
"e`rd lwjt esjk Hkrhtk Fkk mldh vk;q yxHkx 13&14 lky dh FkhA lwjt viuh eka ds lkFk >qXxh >ksiM+h xksfoUn Iyktk esjB esa jgrk FkkA lwjt dh eka jft;k dks dLck [kSj tkuk FkkA bl otg ls og lwjt dks esjs ikl NksM+ x;h FkhA ftl fnu og lwjt dks og esjs ikl Nks+M+ x;h Fkh mlh jkr dks10 cts ds djhc eq>ls lwjt us ihus ds fy, ikuh ekaxk Fkk ?kj esa ikuh ugha Fkk] blfy, eSaus mls dgk fd dVjh\ ysdj ikuh ys vkvksA lwjt tc dVjh ysdj ikuh ysus x;k rFkk ikuh ysdj vk;k rks mlus dgk fd ';ke /kkud gkftj vnkyr eqyfte ds ;gka Vh0oh0 ns[kus tk jgk gwwW ;g dgdj og eqyfte ';ke /kkud ds ;gka pyk x;kA vxys fnu lqcg eSa Hkh[k ekaxus ds fy, pyh x;hA rFkk jkr dks djhc 8&10 cts vk;h rks mlls vxys fnu eSaus lwjt dh v[kckj esa QksVks ns[kh rc eq>s lwjt dh fpUrk gqbZA eq>s iwjk fo'okl gS fd eqyfte ';ke /kkud us gh lwjt dh gR;k dh gSA ';ke /kkud xksfoUn Iyktk esa ikuh lIykbZ dk dke djrk gS rFkk xksfoUn Iyktk esa gh jgrk FkkA"
36. The statement of P.W. 6 Murari is also relevant, who has stated as under :-
"gkftj vnkyr ';ke /kkud dks tkurk gwW ;s yky dqrhZ xksfoUn Iyktk ds xksnke esa jgrk gSA rFkk ikuh lIykbZ dk dke djrk gSA vkt ls djhc 11 ekg iqjkuh ckr gSA eSa jkr dks yxHkx 2&[email protected] cts tc esjh vka[k [kqyh rks is'kkc djus ds fy, ckgj vk;k rks eSaus ns[kk fd gkftj vnkyr eqyfte ';ke /kkud tkequ ds isM+ dh rjQ ls Bsyk ysdj vk jgk Fkk eq>s ns[kdj ;g ldidk x;k rFkk Mj x;k D;ksafd esjh nk<+h c 37. Both these witnesses have been cross-examined at length by learned defence counsel but nothing has been elicited to cast a shadow of doubt on their testimony.
38. A perusal of the site plan (Ext. Ka. 9) shows that on the side of 'Nala' there is a 'Jamun' tree. P.W. 6 Murari has seen the appellant coming from the side of Jamun tree situated by the side of Nala. On seeing Murari (P.W. 6), the appellant was taken aback. The dead body of Suraj was found lying all naked in the Nala. A piece of foam with jute on its sides, a plastic rope, white polythene and some clothes were recovered by the police with the body. It is worth mentioning that when the appellant along with police, went to the godown of Jai Ganga Water Solution, the same kind of piece of foam with Jute on both sides was recovered from the godown by the police at the instance fo appellant. The broken baseball bat, having human blood on it, was also recovered. The recovery memo of the incriminating materials (Ext. Ka. 10) recovered at the instance of the appellant, bears the signature of appellant alongwith the signatures of witnesses, which has been duly proved by the I.O. as (Ext. Ka. 10). All the incriminating materials recovered, were produced in court at the time of examination of the I.O. during trial.
39. The I.O. has been cross-examined at length by the learned defence counsel but no such fact has come out so as to cast a shadow of doubt on the recovery made in pursuance of disclosure statement made by the accused.
40. Section 27 of Evidence Act carves out an exception to Sections 25 and 27 of Evidence Act by postulating that if something new is discovered or recovered from the accused, which was not in the knowledge of the police before disclosure statement of the accused is recorded, it is admissible in evidence.
41. In Madhu Vs. State of Kerala (2012) 2 SCC 399 the Hon'ble Apex Court has held as under :-
"As an exception, Section 27 of the Indian Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Indian Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Indian Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "...as it relates distinctly to the fact thereby discovered....". The rationale behind Section 27 of the Indian Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. Discovery of facts itself, therefore, substantiates the truth of the confessional statement."
42. After a close scrutiny of the evidence available on record in this case, we are of the firm view that all the circumstances in this case are so well established so as to form a complete chain pointing out only towards the guilt of the accused and towards no other hypothesis.
The circumstances may be enumerated as under :-
1. On the fateful night the deceased boy had gone to the house of the appellant in the night to watch TV. His naked dead body was found in the Nala on the next day at 11.00 A.M. The appellant was seen coming from the side of Nala with a "Thela" by the witness Murari, who had come out of his house for urinating.
2. Seeing Murari, the appellant was taken aback.
3. The appellant used to supply water in Jai Ganga Water Solution, Govind Plaza and lives in the godown of same company situated at Govind Plaza. The victim and his family was also residing at Govind Plaza.
4. After his arrest, the appellant confessed his guilt and disclosed about the incident. At his instance, the police recovered the blood stained baseball bat broken into two pieces. The piece of foam with jute on both sides was also recovered from the godown, which was similar to the piece of foam recovered with the dead body from the Nala.
5. Clothes from which the appellant had wiped out the blood, were identified by the witnesses, living in the vicinity, as of the appellant and of the deceased.
6. The witness Murari has stated that he had seen the appellant at about 2.30 A.M. in the mid night. As the witness had prior acquaintance with him, he recognized him even at the time of night.
7. Admittedly, there is no enmity of the witnesses with appellant Shyam Dhanak and there was no motive with them to falsely implicate him in this case.
8. Human blood has been found on the broken baseball bat, by the Forensic Science Lab.
9. The appellant had full opportunity to lead some evidence in his defence or at least to explain the incriminating circumstances in his statement under Section 313 Cr.P.C., but he has not stated anything except general denial from the allegations. He has even expressed his ignorance about the recovery of dead body which appears wholly unnatural because being a person of the same vicinity he must have had the knowledge about the recovery of a dead body from the Nala near his godown.
10. When the appellant became unsuccessful in fulfilling his lust, he got furiated and hit the baseball bat with full force on the head of the body. Thus, the presence of motive is well established
11. Only on the ground that due to lack of sufficient evidence with regard to offence of sodomy, the appellant was acquitted of the charges under Section 377/ 511 I.P.C., it cannot be said that there was no motive with the appellant to commit the crime, otherwise who could have enmity with a boy of 13 - 14 years of age, so as to cause his murder in such a ghastly manner?
43. Thus from the circumstances as enumerated above, we have no hesitation in holding that the prosecution has been able to comprehensively and reliably establish the chain of circumstances. The evidence produced by the prosecution does not leave any major loopholes in the case of prosecution. With the help of its oral and documentary evidence, the presence of appellant at the scene of crime, his intention of committing the crime, the manner in which he had tried to destroyed or conceal the evidence i.e. the dead body, blood stained clothes of the deceased and the accused themselves and other incriminating articles like the broken bat and finally his conduct have been well established by the prosecution. The accused has not offered any explanation during the recording of his statement under section 313 Cr.P.C. Except for a vague denial, he has stated nothing more.
44. The law is well settled that if the accused offers no explanation of the incriminating circumstances put to him under Section 313 Cr.P.C. and gives evasive answers by general denials, he provides the missing link in the chain of circumstances.
45. In Munna Kumar Upadhyay Vs. State of Andhra Pradesh, (2012)6 SCC 174 the Hon'ble Apex Court has held as under:-
"The statements of S. 313 Cr.P.C. serves a dual purpose. Firstly it affords the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him.
If the accused gives incorrect or false answer during the course of his statement u/s 313 Cr.P.C., the Court can draw an adverse interference against him.
Such conduct of accused would tilt the case in favour of prosecution."
46. Learned trial court has discussed in detail each and every circumstances of the case and has rightly come to the conclusion that all the circumstances of the case points out only towards the guilt of the accused-appellant and towards no other hypothesis.
47. We find no reason to disturb the findings recorded by the learned trial court.
48. Accordingly the appeal being meritless is liable to be dismissed and is accordingly dismissed.
49. The appellant is in jail and he shall remain in jail to serve out the remaining sentence.
50. The lower courts' record alongwith a copy of this judgment be sent to the trial court forthwith for necessary compliance.
51. Mrs. Archana Singh, learned Amicus Curiae, appearing for the appellant, who has assisted this Court very efficiently, be paid Rs. Eleven thousand as fee.
Order Date :- 30.08.2018.
S.B./Pcl