State through informant Aarti Devi … v. Dablu Modi, S/o Tuna Modi, R/o Jatudih Colony, Putki, Munidih OP
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Death Ref. No. 01 of 2022 State through informant Aarti Devi …. ....... Appellant Versus Dablu Modi, S/o Tuna Modi, R/o Jatudih Colony, Putki, Munidih OP, ......... …... Respondent Dist.-Dhanbad With Cr. Appeal (DB) No. 272 of 2022 Dablu Modi, S/o Tuna Modi, R/o Jatudih Colony, PO-Munidih, PS-Putki, Dist.-Dhanbad …. ....... Appellant Versus The State of Jharkhand ... …...Respondent CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ------ For the Appellant-State For the Convict : Mr. Pankaj Kumar, PP [in Death Ref. No.01 of 2022] : Mr. Sheo Kumar Singh, Advocate Mr. R.N. Chatterjee, Advocate For the State : Mr. Saket Kumar, APP [in Cr. Appeal (DB) No.272 of 2022] J U D G M E N T C.A.V on 21/07/2023 Pronounced on 14/08/2023 Per Shree Chandrashekhar, J. Death Reference No. 01 of 2022 has been instituted under section 366 of the Code of Criminal Procedure for confirmation of Death penalty awarded to Dablu Modi in Spl. (POCSO) Case No.51 of 2018 by the judgment dated 7th February 2022. 2. Dablu Modi was a neighbor of the informant whose daughter aged about 5 years is a victim1 of the crime. Putki PS Case No.42 of 2018 was lodged against Dablu Modi on 29th April 2018 for committing the offence under sections 376-A, 302 and 201 of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 20122. In her written report, Aarti Devi stated that Dablu Modi who is her neighbor in Jatudih Colony came to her house around 09.00 PM and took her daughter 1. 2 The victim is referred as “X”. In short “POCSO Act” 2 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 to a marriage party on a promise that he would bring her back home after dinner. In the night her daughter was not brought back home and on inquiry Dablu Modi expressed his ignorance about her daughter. Therefore, she went to the marriage party where she met Chanda Devi and Rajat Singh who informed her that Dablu Modi was going towards Jatudih forest with her daughter. Aarti Devi expressing her apprehension against Dablu Modi gave a written report to the police that Dablu Modi committed rape and murder of her daughter. 3. Dablu Modi was arrested around 03.30 PM on the next day and suffered a confessional statement which was recorded in front of Quarter No.81 at Jatudih Colony where he lived. On the same day the dead body of 'X' was recovered from Jatudih forest and an inquest of the dead body was prepared in his presence. A few yards from there, the blood-stained frock, slipper, leggings and undergarment of 'X' were recovered and seizure memo vide Ext.4, Ext.4/1 and Ext.4/2 were prepared between 05.45 PM-06.30 PM on 29th April 2018. The dead body of 'X' was identified by Aarti Devi and Vijay Bouri who is the uncle of 'X'. 4. The following postmortem and antemortem external injuries were found on the person of “X”: Postmortem injuries: 1. P.M. Abrasion (a) 3/4"x1/4" on top of right shoulder; (b) 7"x1.5" on upper part flank of left side of chest and abdomen; (c) 1" x 0.75" on middle part back of right side of abdomen; (d) 1.5"x1" on upper part back of right leg; (e) 1.25"x0.5" on lower part back of left leg. Fecal stain found over anal region and external genetalia, groin and perineum 2. Following antimortem external wounds found over the person of the deceased:- I. Thin linear crescentic nail mark: (a) 1/6"x1/10” over left cheek about 1/4" lateral to left nose; (b) 1/4"x1/10” over right cheek about 1" lateral to outer canthus of right eye; (c) 1/4"x1/10” over middle part under surface of chin. II. Bruise of size about: (a) 1.25"x1" on the middle part right side of lower jaw; (b) 0.75"x0.5" over left cheek. On exploratory dissection, ecchymosis was found under neath. III. Abraded contusion (a) 0.75"x0.25" on right side angle of lower jaw; (b) 0.5"x0.25" on upper part front of right side of neck; (c) 0.5"x1/6" on upper part right side front of neck; (d) 1.5"x1" on under surface of chin. IV. Abrasion (a) 1/6"x1/6" on angle of right side of mouth; (b) 1/4"x1/4" on top of right shoulder; (c) 1/4"x1/4" on middle part of right clavicular region; (d) 1/4"x1/4" on upper part outer side of right arm; (e) 1.5"x1" over right cheek; (f) 3/4"x1/4" on inner side of right elbow; (g) 2.5"x1.5" on upper 3 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 part front of left side of chest and sternal region; (h) Multiple small abrasion in an area of 8"x3"on middle part back of side to side chest; (i) Multiple small abrasion in an area of 6"x4" over both gluteal region and right side of waist. V. Both labia found apart. Hymen torned having tears on both laternal vaginal wall. Lacerations over perineum found, leanrer nail marks about 1/2 cm found over left side of vulva and about 1/6” length found over right side of vulva and both were symmetrical. There is a communication (size about 1” x 1/2”) between vagina and pelvic cavity through the posterior fornix which appears to be by a rigid blunt object. 5. After the investigation a chargesheet was laid in the Court against Dablu Modi and he faced the trial on the charge of committing aggravated sexual offence and murder of “X”. To prove the charges, the prosecution produced seven witnesses amongst whom PW1 is the informant. The postmortem report, written report, seizure lists of blood-stained frock, black-color undergarment, slipper, and cream-colored legging belonging to the victim, inquest report, FSL report of viscera, and serological examination report of blood found on the frock were duly proved and laid in evidence by the prosecution. 6. The defence put forth on behalf of Dablu Modi was a simple denial of the accusations and false implication on suspicion. He was examined on 3rd December 2021 under section 313 of the Code of Criminal Procedure during which the incriminating materials appearing against him were put to him which he denied and took a defence that he was falsely implicated in this case because he was objecting to Aarti Devi from selling liquor in the neighborhood. 7. The judgment delivered in Spl. (POCSO) Case No. 51 of 2018 is based on “chain-linked theory”. The trial Judge held that the accused who committed aggravated penetrative sexual assault on a child and caused her death was not able to elicit/adduce evidence to discharge reverse burden under section 29 of the POCSO Act. The trial Judge has further held that the incriminating circumstances have been established by producing cogent evidence and the circumstances so proved form a complete chain of events and, that, the only irresistible conclusion that can be drawn is the guilt of the accused and there is no reasonable likelihood of innocence of the accused. 8. The learned trial Judge has held as under: “32. Prosecution case against present accused Dablu Modi is based on circumstantial evidence with links 4 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 (i) That the five years old victim girl was taken away by this accused Dablu Modi at about 9.00 p.m. in the evening of 28.04.2018. (ii) That even after one hour she was not returned to her mother. (iii) The girl was last seen alive by P.W.5 Rajveer Singh @ Rajat Singh @ Ranjan in marriage function of daughter of Churka Das with this accused Dablu Modi and he was going towards Jatudih jungle with the girl. (iv) Accused Dablu Modi returns to his home in the night at about 11.00 p.m. alone and on being asked about the girl he says that he does not remember where he left the girl. (v) The girl was not found and her dead body was recovered on next day by police from Jatudih jungle. (vi) Medical Board gives opinion Time elapsed since death = 36 hours (+ -) 6 hours. It means death was caused in between 6.00 p.m. To 12.00 night on 28.04.2018 due to asphyxia and at that time the child was with this accused Dablu Modi. 33. On the basis of oral evidences of informant P.W.1 Arti Devi, it is well proved that daughter of informant aged about five years was taken away by this accused Dablu Modi in the night of 28.04.2018 at about 09.00 p.m. She did not return in expected time and informant has started searching her daughter and in her search, she goes to the house of Dablu Modi. Mother of Dablu Modi was aware that Dablu Modi was with the victim girl. Victim girl was not found till next date thereafter the matter was reported to the Police. The victim girl was last seen in care and custody of this accused Dablu Modi. It is further well established by documents Ext.5 inquest report and Ext.2 postmortem report and evidence of Medical Officer P.W. 6 Vineet P. Tigga that deceased was killed before 36 hrs. (+ - 6 hrs) from 12.15 pm of 30.04.2018. According to postmortem report the time of death of victim was in the evening of 28.04.2018. In all probabilities the child was in possession of this accused Dablu Modi at the time of her death. 34. In the instant case, the crime is aggravated penetrative sexual assault coupled with murder. The victim is a 5 years old girl who incidentally also from suppressed community. The doer of the crime is a 21 years old male of the same locality and he has committed the crime exploiting the trust of the innocent girl. The accused, in order to satisfy his sexual algolagnia and abnormal sexual desire, had deprived the life of a minor girl even at the bud. Evidence of P.W. 6 Dr. Vineet P. Tigga read with postmortem report Ext. 2, makes it clear that the offence of aggravated penetrative sexual assault was committed upon deceased. Ext. 2 mentions that both labia found apart. Hymen torn having tears on both lateral vaginal wall. There was a communication (size about 1" X 1/2") between vagina and pelvic cavity through the posterior fornix which appears to be by a rigid blunt object. On the observation of medical board, and under the facts and circumstances of this case it is clear that the offence of aggravated penetrative sexual assault was committed upon the child. 35. On perusal of entire prosecution case and evidences available on record as discussed above I find that all six incriminating circumstances have been clearly established by believable evidence, and circumstances so proved are forming chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Circumstances in the chain of events of this case rule out a reasonable likelihood of the innocence of the accused. The chain of evidences as discussed above are so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused Dablu Modi. Conduct of accused after commission of crime of rape on child i.e hiding the dead body behind bushes, throwing frock, chappal, leggings and panty etc. at different places gives reason to believe that these acts were done with intention of the commission of that offence to disappear therefore charge u/s 201 of I.P.C. also stands proved against accused Dablu Modi. 5 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 36. That apart, Section 29 of the POSCO Act fastens statutory presumption against the accused person and the reverse burden is on the accused. In this case, the appellant/accused has committed aggravated penetrative sexual assault on a child and caused her death. Hence, the presumption stands against him. In spite of affording opportunity to cross-examine the witnesses, and adduce defence evidence the accused neither discharged his reverse burden by discrediting the credibility of the witnesses nor adduced positive evidence to prove his innocence. 37. No evidence has come on the point that accused Dablu Modi intentionally committed the offence knowing that victim belongs to a Scheduled Caste or a Scheduled Tribe therefore charge u/s 3 (1) (w) (i) of Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act is not proved, therefore accused Dablu Modi is acquitted from the charge u/s 3 (1) (w) (i) of Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act. In view of above discussion I find that the prosecution has been able to prove the charges. The accused Dablu Modi is found guilty and he is convicted for the charges U/s 376-AB, 302 and 201 of IPC and U/s 6 of POCSO Act. Let the record be put up before court for hearing on the point of sentence on 9.02.2022. Convict Dablu Modi shall be produced before the court through videoconferencing at the time of hearing on the point of sentence.” 9. Dablu Modi has been awarded a sentence of death by hanging and a fine of Rs.5,000/- under section 302 of the Indian Penal Code, a sentence of death by hanging and a fine of Rs.5,000/- under section 376-AB of the Indian Penal Code and RI for 7 years and a fine of Rs.1,000/- under section 201 of the Indian Penal Code – but, no separate sentence under section 6 of the POCSO Act has been awarded. However, he has been acquitted of the charge under section 3(1)(w)(i) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 10. Dablu Modi has filed Cr. Appeal (DB) No.272 of 2022 under section 374(2) of the Code of Criminal Procedure to challenge his conviction and sentence awarded in Spl. (POCSO) Case No. 51 of 2018. 11. As PW1, the informant has stated in the Court that Dablu Modi came to her house in the evening of 28th April 2018 around 09.00 PM. He wanted to take 'X' to a marriage party but she refused to send her daughter with him. Dablu Modi forcibly took her daughter to the marriage party, but when her daughter did not return home, she started searching for her in the neighborhood. This is the evidence of the informant that the mother of Dablu Modi had also seen him going with 'X', and Dablu Modi later on told her that he did not remember with whom he had left 'X'. She has further stated that Chanda Devi and Rajat Singh had seen Dablu Modi taking away 'X' towards the forest and the next day around 05.00 PM Dablu Modi took 6 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 the police to the place where the dead body of 'X' was concealed. 12. The deposition of PW1 recorded during the trial of Spl. (POCSO) Case No.51 of 2018 is extracted as under: 1- ;g eqdnek eSaus fd;k gSA ?kVuk ikap ekg iwoZ dh gSaA le; 9-00 cts jkr dk FkkA eSa vius ?kj ij FkhA esjh csVh dk uke [kq'kh dqekjh] mez 5 o"kZ FkkA Mcyw eksnh cksyk fd [kq'kh dks 'kknh dk ikVhZ [kkus ys tk jgs gSaA eSa cksyh dh ugha tkus nwaxh jkr gks x;k gS rFkk cPph dks flQZ ikVhZ esa tkus dk 'kkSd gS ijUrq og [kkuk ugha [kkrh gSA rc Mcyw eksnh cksyk fd tkus fnth, ge ikVhZ f[kykdj ys vk,axsA rks eSa tkus ugha ns jgh Fkh ysfdu og tcjnLrh og esjh csVh dks ys x;kA ,d ?kaVk ckn tc og esjh csVh dks okil ugha yk;k rks eSa vxy&cxy [kksthA rc eSa Mcyw eksnh ds ek¡ dks tkdj cksyh] mldh ek¡ cksyh fd ysdj ugha vk;k gSA mldh ek¡ mls ys tkrs gq, ns[kh FkhA ,d ?kaVk ckn Mcyw eksnh ykSVk rks eSa cksyh fd esjh csVh dks ys x, gks og dgka gS] rks og cksyk fd mls ys x, Fks ysfdu ;g ;kn ugha gS fd fdlds ikl NksM+ fn, gSaA mlds ckn mls jkrHkj [kkstsA pank nsoh vkSj jtr flag us ns[kk Fkk fd Mcyw eksnh esjh csVh dks taxy dh rjQ ys tk jgk FkkA 2- nwljs fnu geyksx lqcg 9-00 cts Fkkuk esa dsl djus xbZA ,d fyf[kr vkosnu Fkkus ij nh FkhA Fkkuk okyk fyf[kr vkosnu fy[kk FkkA mlij eSa viuk vaxwBk dk fu'kku nh FkhA 3- Mcyw eksnh esjh csVh ds lkFk cykRdkj dj mldh gR;k dj taxy esa Qsad fn;k FkkA nwljs fnu 5-00 cts 'kke dks esjh csVh dk yk'k Mcyw eksnh tkdj fn[kk;kA 4- vfHk;qDr Mcyw eksnh dks igpkurh gwa] vkt U;k;ky; esa mifLFkr gSA Cross-examination by Ld. Counsel for accused 5- ml fnu ds iwoZ fdlh vkneh dks eSaus viuh csVh ds lkFk ugha Hksth FkhA 6- esjs ?kj ls rhu&pkj ?kj ckn Mcyw eksnh dk ?kj gSA ml xkao esa eSa ,d o"kZ igys ls jg jgh gwWaA esjs lkFk esjs ifr Hkh gSaA eq>s ,d vkSj yM+dk gSA 7- tc Mcyw eksnh cPph dks ys tkus ds fy, cksys ml le; esjs ifr ?kj esas ugh FksA 8- eSa] eukst] eukst dk ek¡ iwN&rkN djus x, FksA vkSj vkneh Hkh [kkstus esa FksA 9- esjs ?kj nwljs fnu 2&2-30 cts iqfyl vkbZ FkhA iqfyl esjk c;ku Fkkus esa yh FkhA mlds ckn iqfyl iwN&rkN ugha dh FkhA 10- fyf[kr izfrosnu ij nkjksxk th vaxwBk dk fu'kku fy, FksA nkjksxk th i<+dj ugha lquk, FksA 11- eSa fyf[kr izfrosnu ds vykos dgha gLrk{kj ugha dh gwwaA 12- 5-00 cts flQZ iqfyl vkbZ vkSj ccyw eksnh dks fxjQrkj dj yk'k mBkbZA esjs lkeus iqfyl dksbZ lkeku tIr ugha dh FkhA 13- ,slh ckr lgh ugha gS fd eSaus 'kd ds vk/kkj ij Mcyw eksnh ij dsl dh gwWa] mlus esjh yM+dh ds lkFk fdlh rjg dk ?kVuk dks vatke ugha fn;k FkkA English Translation: 1. I have lodged this case. This occurrence took place five months ago. It was 9:00 P.M. I was at my home. The name of my daughter was Khushi Kumari, aged 5 years. Dablu Modi said that he was taking Khushi with him to attend a marriage party to which I said that I would not allow as it was night and my daughter only wants to attend the party but she does not take meals. Dablu Modi then requested me to allow her to go with him and though I was not al - lowing him to take her but he forcefully took away my daughter. When he did not return with my daughter even after one hour then I started searching her in my neighbourhood. Then I enquired from the mother of Dablu Modi but she said that he had not yet come back with my daughter. His mother had seen him taking my daughter away. When Dablu Modi returned after an hour, I asked him about my daughter but he replied that he took her away but he is unable to remember/recall with whom he left her. Thereafter, I searched for her the whole night. Also, Chanda Devi and Rajat Singh had seen that Dablu Modi was taking away my daughter towards the forest. 2. Next morning at 9:00 A.M. we went to the police station to lodge the case, we submitted a written application and the application was filed by the police on which I put my thumb impression. 3. Dablu Modi after committing rape and murder of my daughter disposed her body in the forest. Next day at 5:00 P.M. Dablu Modi had shown the dead body of my daughter. 4. I identify accused Dablu Modi who is present in the Court today. Cross-examination by Ld. Counsel for accused 5. Before that day, I did not send my daughter with any other person. 7 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 6. The house of Dablu Modi is at a distance of 3-4 houses next to my house. I have been living in that village since last one year. My husband lives with me and I have another child who is a son. 7. When Dablu Modi asked to take away my daughter my husband was not present at home. 8. I, Manoj, along with his mother, and mother of Rajat went to enquire about my daughter where other people were also searching for her. 9. The police arrived at my house the next day at about 2:00-2:30 P.M. My statement was recorded at the police station. Thereafter, police did not inquire any further. 10. Daroga Jee had taken my thumb impression on the written application, but he did not read it over to me. 11. I had not put my signature anywhere except on written application. 12. The police arrived at 5:00 O’clock and arrested Dablu Modi and seized the dead body. The police did not seize any other article in my presence. 13. This is not true that I lodged this case against Dablu Modi on mere suspicion and that he has not committed any crime. 13. PW2 who is a co-villager had attended the marriage party of the daughter of Charku Das in the night of 28th April 2018. She made a statement before the police that on that night she found Dablu Modi in a drunken state and he was taking away 'X' towards Jatudih forest. PW2 is a witness who was produced in the Court on the point of seizure of the dead body, slipper, leggings, etc. on 29th April 2018 by the police at the pointing of Dablu Modi. However, she refused to admit to having made any such statement before the police and flatly denied that the police ever made any inquiry from her. 14. The evidence of PW2 recorded during the trial of Spl. (POCSO) Case No.51 of 2018 reads as under: 1- ?kVuk ikap ekg iwoZ dh gSaA vkjrh nsoh dh csVh dk uke [kq'kh gS mldh mez 5&6 o"kZ gSaA lqus Fks fd [kq'kh ds lkFk jsi gqvk gSA lqus Fks fd Mcyw eksnh ys x;k FkkA iqfyl dks [kq'kh dh yk'k taxy esa feyh FkhA iqjk dkWyksuh esa gYyk gks x;k Fkk fd taxy esa yk'k feyk FkkA 2- Mcyw eksnh dks igpkurh gwaA D;ksafd og dkWyksuh esa jgrk gSA Declared Hostile APP is permitted to cross examine the witness 3- ,slh ckr lgh ugha gS fd ,slk c;ku iqfyl ds le{k nh Fkh fd fnukad 28-04-18 dks jk=h esa pj[kq nkl dh csVh ds 'kknh Fkh] 'kknh esa [kkuk [kkdj vk jgs Fks rks jk=h 9-00 cts ns[kh fd dquk eksnh dk iq= Mcyw eksnh thrw ckmjh dh ukckfyx iq=h [kq'kh dqekjh dks ysdj trqMhg taxy ds rjQ tkrs ns[kk FkkA og u'ks dh gkyr esa FkkA Mcyw eksnh us [kq'kh dqekjh ds lkFk jk=h esa cykRdkj fd;k] ftlls mlds e`R;q gks xbZA fnukad 29-04-18 dks Mcyw eksnh ds fu'kkunsgh ij [kq'kh dqekjh dk 'ko] pIiy] ysxhUl iqfyl }kjk cjken fd;k x;kA 4- ,slh ckr lgha ugh gS fd eqnky; ds esy esa vkdj lgh ckr fNIk jgh gwa rFkk >wBh xokgh ns jgh gwWaA Cross-examination by Ld. Counsel for accused 5- ml fnu jkr dks eSa ?kj ls ckgj ugha xbZ FkhA nwljs fnu lqcg v[kckj esa QksVks ns[kdj igpkus ds ;gh Mcyw eksnh gSA 6- eSaus iqfyl esa dHkh dksbZ c;ku ugha fn;k vkSj u gh iqfyl us eq>ls iwNrkN fd;k FkkA 7- ?kVuk ds ckjs esa Hkh eq>s flQZ v[kckj i<+dj vkSj vxy&cxy ds yksxksa ls tkudkjh gqbZA English Translation: 1. This occurrence took place 5 months ago. The name of the daughter of Arti Devi is Khushi and she was aged about 5-6 years. I heard that Khushi was raped 8 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 and that Dablu Modi took her away. The police recovered the dead body of Khushi from the forest. News spread in the colony that her dead body was found in the forest. 2. I identify Dablu Modi as he lives in the colony. Declared hostile APP is permitted to cross-examine the witness 3.This is not true that I gave statement before the police that there was marriage of daughter of Charku Das in night of 28.04.2018. I was returning from the marriage party after having meals then at 9:00 P.M. I saw that Dablu Modi, S/o Kuna Modi was taking away Khushi Kumari, the minor daughter of Jitu Bouri towards Jatudih forest. He was in inebriated condition. Dablu Modi committed rape upon Khushi Kumari in the night and consequently she died. On the pointing of Dablu Modi, the slipper, leggings and dead body of Khushi Kumari was recovered on 29.04.2018. 4. It is not correct that I am concealing the true facts and giving false evidence in connivance with accused. Cross-examination by Ld. Counsel for accused 5. On that night, I did not step out from my house. Next morning, when I saw the photograph in the newspaper, I identified that he is Dablu Modi. 6. I had neither given statement to police nor did the police inquire from me. 7. I came to know about the occurrence from newspaper and people of my neighborhood. 15. PW3 and PW4 have identified their signatures vide Ext.1 and Ext.1/2 on the seizure memo of a green-color slipper and black undergarment belonging to 'X'. From their evidence, the prosecution has proved that the dead body of 'X' and her belongings were seized from different places inside Jatudih forest. 16. The deposition of PW3 recorded during the trial of Spl. (POCSO) Case No.51 of 2018 is extracted hereinbelow: 1- ?kVuk 28-04-2018 ds le; 9-00 cts jkr dk FkkA tjdw nkl dh csVh dk 'kknh Fkk rks Mcyw eksnh vkjrh nsoh dh csVh [kq'kh dqekjh mez 5 o"kZ dks [kkuk f[kykus ds fy, 'kknh esa ys x;k FkkA Mcyw eksnh taxy esa ys tkdj [kq'kh dqekjh ds lkFk cykRdkj fd;kA cykRdkj djus ls mldh e`R;q gks xbZA Mcyw eksnh yk'k dks taxy esa Qsad fn;k vkSj mldk diM+k pIiy rkykc ds ikl FkkA trqMhg taxy esa e`frdk [kq'kh dqekjh iguk gq, iSaVh dkyk jax dk vkSj gjk jax dk ,d iSj dk pIiy] ftlij vaxzsth esa cksuks fy[kk gqvk Fkk] cjken gqvkA 2- ;g tIrh lqph ?kVuk LFky ij gh cuh Fkh] ftlij eSaus vaxzsth esa gLrk{kj fd;k gwa] ;g ogha tIrh lwph gS ftlij esjk gLrk{kj gS] igpkurk gwa] ftls izn'kZ 1 vafdr fd;k tkrk gSA 3- vfHk;qDr Mcyw eksnh dks igpkurk gwaA vkt U;k;ky; esa mifLFkr gSA Cross-examination by Ld. Counsel for accused 4- Mcyw eksnh dks nks lky ls tkurk gwWaA 28-04-18 dks eSa Mcyw eksnh ds lkFk esa ugha FkkA 5- tks nsa[ks gSa ogha ?kVuk dh tkudkjh gSA ?kVuk ds le; eSa ?kVuk LFky ij ugha FkkA 6- iqfyl ds dgus ij tIrh lwph ij gLrk{kj fd;k gwWaA English Translation: 1. The incident took place at 09.00 pm on 28.04.2018. There was marriage ceremony of daughter of Jarku Das. Dablu Modi had taken Khushi Kumari D/o Arti Devi, aged 5 years to the marriage ceremony on the pretext of dinner. Dablu Modi took Khushi Kumari to the forest and raped her, consequently she died. Dablu Modi disposed her dead body in the forest and her clothes and a slipper were lying near a pond. A black coloured panty and a green coloured slipper of one foot with BONO 9 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 printed on it in English, were recovered from Jatudih forest. 2. This seizure list was prepared at the place of incidence on which I put my signature in English. This is the same seizure list which bears my signature and I identify it. It is marked as Exhibit-1. 3. I identify the accused Dablu Modi. He is present in the court today. Cross-examination by Ld. Counsel for accused 4. I know Dablu Modi since last two years. I was not with Dablu Modi on 28.04.18. 5. I have that much of information what I have seen. I was not present at the time of incidence when it took place. 6. I put my signature on the Seizure list as told by the police. 17. During the trial of Spl. (POCSO) Case No.51 of 2018, PW4 has stated in the Court as under: 1- ?kVuk 28-04-2018 ds le; 9-00 cts jkr dk FkkA Mcyw eksnh vkjrh nsoh dh csVh [kq'kh dqekjh mez 5 o"kZ dks 'kknh lekjksg esa [kkuk f[kykus ds fy, ys x;k Fkk mldh ek¡ ls iwNdjA okil ?kj ugha igqapk;kA Mcyw eksnh taxy esa ys tkdj [kq'kh dqekjh ds lkFk nq"deZ fd;kA nq"deZ djus ls mldh e`R;q gks xbZA Mcyw eksnh yk'k dks trqMhg taxy esa Qsad fn;kA 2- e`frdk [kq'kh dqekjh iguk gq, iSaVh dkyk jax dk vkSj gjk jax dk ,d iSj dk pIiy cjken gqvkA ;g ogha tIrh lwph gS] ftlij eSaus vaxzsth esa gLrk{kj fd;k gwWa] igpkurk gwWa] ftls izn'kZ 1@2 vafdr fd;k tkrk gSA 3- vfHk;qDr Mcyw eksnh dks igpkurk gwWaA vkt U;k;ky; esa mifLFkr gSA Cross-examination by Ld. Counsel for accused 4- Mcyw eksnh esjk nksLr ugha gSA eSa mls nks lky ls tkurk gwWaA 5- ?kVuk ds ckjs esa eq>s O;fDrxr tkudkjh ugha gSA 6- iqfyl ds dgus ij eSaus tIrh lwph ij gLrk{kj fd;k gSA English Translation: 1. The incident took place at 09.00 pm on 28.04.2018. Dablu Modi had taken Khushi Kumari daughter of Aarti Devi aged 5 years for having dinner in the marriage function after taking permission from her mother. He did not bring her back. Dablu Modi took Khushi Kumari to the forest and raped her, consequently she died. Dablu Modi disposed her dead body in Jatudih forest. 2. Black coloured panty and one green coloured slipper worn by the de- ceased Khushi Kumari were recovered. This is the same seizure list which bears my signature in English which I identify. Mark it as Exhibit- 1/2. 3. I identify the accused Dablu Modi. He is present in the court today.
Legal Reasoning
“73. Application of the “last seen theory” requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. This Court in para 21 of Yusuf case while referring to Mohd. Azad v. State of W.B. and State v. Mahender Singh Dahiya, held as under: (Yusuf case, SCC pp. 760-61) “21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide Mohd. Azad v. State of W.B. and State v. Mahender Singh Dahiya.)” 24. The best evidence of the prosecution against Dablu Modi is coming through PW1 who deposed in the Court that 'X' was taken away by him on the pretext of dinner at a marriage party in the evening of 28th April 2018 and the next day her dead body was recovered from Jatudih forest. In order to challenge the evidence of PW1 on last seen together, the defence has elicited from her a statement that in the past she never sent her daughter 3 Shyamal Ghosh v. State of W.B. :(2012) 7 SCC 646 13 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 with any other person. Mr. Sheo Kumar Singh, the learned counsel for Dablu Modi has contended that conduct of the informant who permitted “X” to go to the marriage party with Dablu Modi does not seem to be natural and there is no explanation coming forth from the prosecution to justify her conduct in not raising hulla, if at all Dablu Modi had forcibly taken away her minor daughter. 25. In every criminal trial, the credibility and trustworthiness of the witness is examined in the light of the surrounding circumstances as also on the anvil of broad probability and normal human behavior and conduct. A minor inconsistency in the evidence of a witness in the Court may appear due to an error of observation, lapse of time, loss of memory or mental disposition at the time of the occurrence. This is also well accepted that every witness may not give a minute description of the occurrence on the unfortunate day. Any witness may forget to say something in the Court or his statement made before the police may not match with his evidence in the Court on some minor aspects of the case but that by itself cannot be a reason to discard his evidence. Similarly, as regards the conduct of a witness, this is an acceptable position that it is almost impossible to predict the behavioral pattern of a person. In “Manglya Dhavu Kongil”4 the Hon’ble Supreme Court has observed that the Courts have to be careful not to substitute their own norms of behavior in a given situation for the norms of behavior of a witness. The judgment in “Rana Partap”5 is also on similar lines wherein the Hon’ble Supreme Court has observed that there is no set rule of natural reactions and to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. 26. PW1 deposed in the Court that when Dablu Modi said that he wanted to take her daughter for dinner at a marriage party, she refused because her daughter though likes to go to the parties but does not take food. However, Dablu Modi forcibly took her daughter along with himself and, later on, feighned ignorance about “X”. In our opinion, the admission of PW1 in paragraph no.5 of her cross-examination that she never permitted her daughter in the past to go out with any other person in no way 4 5
Arguments
Cross-examination by learned counsel for accused 4. Dablu Modi is not my friend. I know him since two years. 5. I have no personal knowledge about the incident. 6. I have signed the seizure list on the instruction of the police. 18. PW5 is another witness who saw Dablu Modi with 'X' around 09.00 PM on 28th April 2018 in the marriage party of the daughter of Charku Das. He has deposed in the Court that he saw Dablu Modi taking away 'X' towards the forest, and the same night he had gone in search for 'X' with her mother. He has also supported the prosecution on the point that the dead body of 'X' was recovered from Jatudih forest. 19. The deposition of PW5 recorded during the trial of Spl. 10 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 (POCSO) Case No.51 of 2018 reads as under: 1- ?kVuk 28-04-2018 ds le; 9-00 cts jkr dk FkkA pqjdk nkl dh csVh ds 'kknh esa Mcyw eksnh dks [kq'kh dekjh ds lkFk nsa[ks FksA [kq'kh dh mez 5 o"kZ FkhA ns[ks fd Mcyw eksnh [kq'kh dks taxy dh rjQ ys tkrs ns[kk FkkA [kq'kh vkjrh nsoh dh csVh FkhA [kq'kh dqekjh dh ek¡ 9-30&10-00 cts jkr dks cksyh fd [kq'kh vHkh rd ?kj ugha vkbZ gS rks geyksx Mcyw ds ?kj x, vkSj ikVhZ esa Hkh [kkstus x,] ysfdu Mcyw ugha feykA nwljs fnu 'kke dks yM+dh dk body trqMhg ds taxy esa feykA ckn esa irk pyk fd Mcyw eksnh mlds lkFk cykRdkj fd;kA 2- vfHk;qDr Mcyw eksnh dks igpkurk gwaA vkt U;k;ky; esa mifLFkr gSA Cross-examination by Ld. Counsel for accused 3- geyksx [kkstus ds fy, Mcyw eksnh ds ?kj x,] ikVhZ tgka Fkk ogka x,] tgka Mcyw eksnh drink fd;k ogka ij x,] ysfdu Mcyw ugha feykA ysfdu geyksxksa dks dqN irk ugha pykA 4- 9-30 cts eSa ikVhZ esa Fkk] ogka ij Mcyw eksnh FkkA ml ikVhZ esa yM+dh dk ek¡] cgu ugha FkkA eSa mudh ek¡ dks crk;k Fkk fd Mcyw dks ikVhZ esa ns[kk FkkA ml ikVhZ esa fdrus yksx Fks eSa ugh fxuk FkkA 5- cykRdkj dh ckr lquh&lqukbZ cksyk gwaA cykRdkj djus dh ckr geyksx dks Fkkuk ls irk pykA 6- vafre ckj Mcyw dks [kq'kh ds lkFk ns[kk x;k Fkk blds vyok vkSj dksbZ tkudkjh eq>s ugha gSA 7- ,slh ckr lgh ugha gS fd eSa >qBh xokgh fn;k gwWaA English Translation: 1. The incident took place on 28.04.2018 at 09.00 pm. I had seen Dablu Modi along with Khushi Kumari in the marriage of Churka Das’s daughter. Khushi was 5 years old. I saw Dablu Modi taking Khushi Kumari towards the forest. Khushi was the daughter of Aarti Devi. At about 09.30-10.00 pm, Aarti Devi told me that her daughter had not come back home. So we went to Dablu’s house and to the place of marriage but Dablu was not found. Next day the body of the girl was found in the Jatudhi forest in the evening. Later I came to know that Dablu Modi raped her. 2. I identify the accused Dablu Modi. He is present in the court today. Cross-examination by Ld. Counsel for accused 3. We went searching for Dablu Modi to his house. We went to the place where the party was organized. We also went to the place where Dablu Modi used to drink but Dablu was not found. 4. At 9:30, I was at the party and Dablu Modi was also present there. Mother and sister of Khushi Kumari were not present at that party. I had told the mother of Khushi Kumari that Dablu was present there. I did not count how many people had attended the said party. 5. I have deposed about the incident of rape whatever I heard about it. We came to know about the occurrence from the police. 6. Dablu was last seen with Khushi. Besides this I do not have any other knowledge or information. 7. It is not correct to say that I have given false evidence. 20. As PW7, the Investigating Officer has stated in the Court that frock, slipper etc., and dead body of 'X' were recovered on the pointing of Dablu Modi who suffered a confessional statement on 29th April 2018. He has stated that the inquest report vide Ext.5 was prepared around 05.30 PM on 29th April 2018 in the presence of witnesses and the dead body was sent for postmortem to PMCH, Dhanbad. He visited the place of occurrence and recorded the statement of witnesses. The blood-stained frock and slipper 11 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 belonging to 'X' were sent to Ranchi for FSL examination and he submitted chargesheet No.81 of 2018 under sections 376-A, 302 and 201 of the Indian Penal Code and section 6 of the POCSO Act and section 3(1)(w)(i) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act against Dablu Modi. Ext.4 is blood-stained frock, Ext.4/1 is undergarment and Ext.4/2 is cream-colored legging (pajama) of 'X' which were recovered from Jatudih forest. The serological report confirming that blood found on the frock had human origin of group 'O' vide Ext.7/1 and viscera report that no metallic alkaloidal, pesticidal, volatile or non-volatile poison could be detected vide Ext.7 were also laid in evidence – Ext.7/1 with objection. He admitted in his cross-examination that seized articles were not produced in the Court and a different name of the deceased was recorded by mistake in the postmortem report but this lapse on his part shall not corrode the prosecution evidence on seizure of the belongings of “X” at the instance of Dablu Modi. 21. Mr. Pankaj Kumar, the learned Public Prosecutor has submitted that recovery of the dead body and frock, slipper, leggings and undergarment belonging to 'X' on the pointing of Dablu Modi is highly incriminating and raises grave suspicion that he was involved in the crime. Dablu Modi has however failed to offer any plausible and acceptable explanation to the incriminating circumstances established by the prosecution when he was examined under section 313 of the Code of Criminal Procedure. The learned Public Prosecutor has further submitted that the balance sheet of aggravating and mitigating circumstances is leaning heavily against Dablu Modi inasmuch as the victim was aged about 5 years and she was brutally assaulted to fulfill sexual desire. Therefore, Dablu Modi who is accused of aggravated penetrative sexual assault and killing a helpless 5-year old girl having betrayed her trust does not deserve any leniency in punishment. 22. The circumstance that Dablu Modi on a false pretext took away 'X' who was last seen alive with him and on the next day her dead body was recovered from Jatudih forest is a highly incriminating material and if this circumstance is proved by cogent and reliable evidence a grave suspicion would arise on complicity of Dablu Modi in the crime. The circumstance of 12 Death Ref. No. 01 of 2022 with Cr. Appeal (DB) No. 272 of 2022 last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. However, the circumstance of last seen together would become clinching evidence if there is some other independent circumstance establishing a connection between the accused and the crime. But like in every criminal trial, to prove the charge under section 302 of the Indian Penal Code the prosecution must lead cogent and consistent evidence establishing complicity of the accused in the occurrence. This is too well settled that the law presumes culpability of the person who was last seen with the deceased and the burden to rebut the same lie on the accused. Therefore, an order of conviction for murder can be recorded if the prosecution establishes that the victim was last seen alive with the accused and soon thereafter the dead body was recovered, provided there are other independent incriminating circumstances available on record which the accused has failed to explain satisfactorily and all taken together complete the chain of circumstances. 23. In “Shyamal Ghosh” 3 In the Hon'ble Supreme Court has held as under: