Mukesh v. State of Rajasthan

Judgment

- December 10, 2012. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE DR.JUSTICE SMT.MEENA V.GOMBER Ms.Rajesh Kandwal, counsel for accused-appellant. Shri J.R. Bijarnia, Public Prosecutor. BY THE COURT:- ****** This appeal has been preferred by accused- appellant Mukesh against the order dated 3/3/2004 passed by learned Additional District and Sessions Judge (Fast Track) No.1, Baran by which, he was convicted for offence under Section 363 IPC and was sentenced to rigorous imprisonment for five years with fine of Rs.100/- and in default of payment of which, he was directed to further undergo simple imprisonment for one month. He was convicted for offence under Section 366 IPC and sentenced to rigorous imprisonment for ten years with fine of Rs.500/- and in default of payment of which, he was directed to further undergo simple imprisonment for three months.

He was also convicted for offence under Section 376(2)(f) IPC and was sentenced to life imprisonment with fine of Rs.1000/- and in default of payment of which, he was directed to DBCR.APPEAL NO.672/04. 2 further undergo simple imprisonment for six months. He was further convicted for offence under Section 302 IPC and was sentenced to life imprisonment with fine of Rs.100/- and in default of payment of which, he was directed to further undergo simple imprisonment for three months. Facts of the case are that one Kamal submitted a written report to SHO PS Kotwali, Baran on 16/9/2003 inter-alia alleging that he and accused Mukesh were employed with Ghanshyam Harijan, Band Master in his Band. Mukesh used to having frequently visit his house.

Mukesh was a heavy drunkard. On 15/9/2003 at around 4.00 p.m., he was heavily drunk and in that state, he came to his house. He took his daughter Radha aged seven years with him on the pretext of getting her biscuits. Radha at that time was wearing the frock of green colour and underwear of maroon colour. At that time, his wife was at the house. When Radha did not come back to house till 8.00 in the night, complainant and his wife tried to search her out in the locality. They even went to the house of Mukesh. Mukesh was also not traceable. On the following day

i.e. on the date of lodgment of FIR, they heard that dead body of a girl was lying near the temple of Murliji. The informant, his wife Nirmala and the elder brother of complainant Radhey Shyam, went to the lane behind the house of Roopesh, where they found the dead body of a girl aged about seven years beneath a very heavy stone. They immediately recognized the dead body to be that of their daughter Radha. It was alleged that accused Mukesh Harijan had murdered their daughter. Thereafter, they called the police. DBCR.APPEAL NO.672/04. 3 After investigation, police filed challan against accused appellant Mukesh for offence under Sections 302, 363 and 376(2) IPC. Prosecution examined as many as seventeen witnesses and exhibited twenty four documents. Accused appellant in his statement recorded under Section 313 Cr.P.C. denied the charges and claimed to be tried. He however did not adduce any evidence in defence. Learned trial court after conclusion of the trial convicted and sentenced the accused appellant in the manner indicated above. We have heard Ms.Rajesh Kandwal, learned counsel for the appellant and Shri J.R. Bijarnia, learned Public Prosecutor and perused the record. Ms.Rajesh Kandwal, learned counsel for the appellant has argued that merely because when complainant and his wife went to the house of accused, he was not found there, this cannot be taken as evidence against him because it was not unnatural for a person to be not available in his house early in the night. Learned counsel further argued that there is contradiction in the statements of PW1 Nirmala and PW4 Kamal, mother and father of the deceased and that of the doctors i.e. PW15 Dr.Pratap Singh Yadav, PW16 Dr.Sumitra Sharma and PW17 Dr.T.C. Acharya, who are all members of the medical board and who medically ascertained the age of the deceased. While the mother and father have asserted the age of the deceased to be 6-7 years, aforementioned doctors have stated her age to be 8 years. Learned counsel submitted that these doctors in their cross-examination have admitted the fact that injuries sustained by the deceased could have been received by reason of fall also. It is argued that DBCR.APPEAL NO.672/04. 4 a suggestion was given in the evidence on record that Mukesh had been having illicit relations with the mother of the deceased PW1 Nirmala and her father PW4 Kamal was annoyed with him for this reason. It is for that reason that he wants to falsely implicate the accused appellant. It is argued that some of the witnesses like PW12 Guddi Bai have turned hostile and has not supported the assertion of the prosecution as to recovery of the dead body. Therefore, benefit of the same should go to the accused. It is argued that recovery has been falsely shown at the instance of the accused appellant. Learned counsel submitted that imposition of sentence of five years for offence under Section 363 IPC was not at all justified. Ms.Rajesh Kandwal, learned counsel for the appellant has argued that there is no direct evidence even, no circumstantial evidence, which may connect the accused appellant with the crime. The chain of circumstances in a case of circumstantial evidence should be so complete as to rule out every other possible hypothesis, which may be consistent with the innocence of the accused. In the present case, recovery of the cloth and the stone that was shown to have been at the instance of accused appellant were in fact found at the place where dead body of deceased Radha was recovered. It is therefore prayed that the appeal be allowed. Per contra, Shri J.R. Bijarnia, learned Public Prosecutor has opposed the appeal and submitted that accused appellant took undue advantage of being friend and co-worker of the father of the deceased, that he had taken Radha aged seven years on the pretext DBCR.APPEAL NO.672/04. 5 of getting her some eatables and he had consumed country made liquor at the place of incident wherefrom, pouches thereof have been recovered at the instance of the accused appellant, which have been marked as Exh.P- 4, 5 and 6. Underwear of deceased has also been recovered vide Exh.P.11. Information given by him for all such recovery is Exh.P.24. Accused was last seen with the deceased not only by the mother of the deceased PW1 Nirmala but also by another witness PW6 Gopal Harijan. When the accused was arrested vide arrest memo Exh.P.23, injuries were found on his body indicating struggle by deceased. Accused had received abrasions and bruises on his both elbows, right knee, right chest and at the back. These injuries clearly corroborated his involvement in the crime. He was arrested on the very next day of the incident. Deceased received eleven injuries, which have been proved by doctor PW15 Dr.Pratap Singh Yadav. Post-mortem of the dead body of deceased Radha was conducted by three doctors i.e. PW15 Dr.Pratap Singh Yadav, PW16 Dr.Sumitra Sharma and PW17 Dr.T.C. Acharya. Eleven injuries consisted of injuries on neck, face, lips, forehead, below head, chest and in between the legs. There was fracture of left mandible bone and fracture of teeth mentioned in column No.5 of the exterior injuries. Deceased received five injuries. Her perineum was found ruptured with blood clotted thereon. Hymen was swollen and vagina was contused allowing one finger therein. Learned Public Prosecutor submitted that witnesses PW2 Mukesh and PW4 Kamal have proved the panchnama, recovery of various articles vide Exhs.P.3, DBCR.APPEAL NO.672/04. 6 P4 & P5. He therefore prayed that this was a fit case in which not only the sentence of life imprisonment for offence under Section 302 IPC for the murder of innocent child but also sentence of life imprisonment for offence under Section 376(2)(f) IPC imposed upon the accused should be maintained. We have given our anxious consideration to the rival submissions and perused the original record. Evidence in the case clearly indicate involvement of accused Mukesh and none-else. PW1 Nirmala mother of the deceased clearly stated that at around 4.00 in the evening of 15/9/2003, accused appellant Mukesh came to her house. Her daughter aged 6-7 years Radha was at home with her. Mukesh was frequent visitor to their house. Her husband was not present at that time. Mukesh inquired about her husband then, she told that he is not at home. Mukesh at that, asked Radha to come with him and he took her with him on the pretext of getting her some eatables. When Radha did not return home till 8.00 p.m. in the evening, She searched her. She also searched Mukesh however he was not found available at the residence. Elder brother of her husband went to fetch her husband Kamal. Her daughter Radha could not be traced during whole night. On the following day, one Roopesh told that a girl was lying dead in the lane behind his house. Police came there and they have given written report stating that when Radha left her house, she was wearing frock of green colour and maroon underwear and she has also bangles in her hands. PW4 Kamal has also stated that her wife and her daughter were alone in the house when Mukesh came in his absence and took his daughter Radha DBCR.APPEAL NO.672/04. 7 with him on the pretext of getting her some eatables. He came back to the house in the evening. His wife Nirmala told him that Mukesh had taken Radha with him and has not returned back. They searched her in the colony but she could not be traced out. Then, they also searched accused Mukesh. He was not available in his house. Dead body of his daughter was found lying in the lane behind the house of Roopesh. Dead body was lying beneath a big stone. They lodged a report in the police station. This witness has proved the panchnama of dead body vide Exh.P.3. He has stated that he and Mukesh were employed with one band group. PW2 Mukesh whose name is also incidentally Mukesh, has proved the site plan Exh.P.1, photographs of the incident Exh.P.2, panchnama of the dead body vide Exh.P.3, blood stained cloth Exh.P.4 and Exh.P.5, pouches of countrymade liquor Exh.P.6 and big stone Exh.P.7. PW3 Radheyshyam, who is elder brother of PW4 Kamal has proved the fact that in absence of Kamal, PW1 Nirmala came to him inquiring about Radha Bai and told that she was not traceable. They made search for her during whole night. On the following day, her dead body was found in the lane behind the house of Roopesh. Nirmala told him that Mukesh Harijan, the accused appellant, had taken her on the pretext of getting her some biscuits and she did not return thereafter. PW5 Surendra has stated that underwear of the deceased was recovered by the police in his presence vide Exh.P.11. Accused appellant produced his shirt, which was seizure memo prepared by the police vide Exh.P.12. Another very important witness PW6 Gopal Harijan stated that it was about 2-4 months ago while he was sitting near temple of Murliji DBCR.APPEAL NO.672/04. 8 at about at 3-4 p.m., he saw accused Mukesh going with the daughter of Kamal. In cross-examination, he stated that his daughter was wearing a frock. He cannot say where did accused take the girl. PW8 Rupesh has stated that on 16th at around 9 a.m., his wife informed him and other members of the locality about the dead body of a girl, which was lying beneath a big stone. Lateron, it was found that this was Radha, daughter of Kamal. PW9 Javed Iqbal has proved the fact that police has taken him to the place, where dead body was recovered and he had taken the photographs of the girl. PW10 Shakil Ahmed, Head Constable and incharge of malkhana has proved that he had taken six sealed packets to the forensic science laboratory for being deposited under the instructions of the SHO. PW12 Guddi Bai, wife of Roopesh Harijan corroborated what was stated by her husband she for the first time saw dead body of the girl on the fateful day. PW13 Bheem Singh Beeka, the investigating officer has proved all the evidence including seizure memo, arrest memo, site plan etc. PW14 Pappu alias Roopbasant has proved panchmana of the dead body. PW15 Dr.Pratap Singh Yadav, one of the members of the medical board has proved the fact that deceased had received multiple injuries i.e. above her eyes, above her lips, on her forehead, below her lips, near left ear, right side of her chest, hips and near scapula and her central lateral insizer canine teeth were broken. There was also fracture of mandible bone towards left side. He has proved the post-mortem report Exh.P.20. He has also proved the fact that five injuries were found on the body of the deceased i.e. DBCR.APPEAL NO.672/04. 9 her perineum was found ruptured with blood clotted thereon, hymen was swollen and vagina was contused allowing one finger therein. There were bruises around levia majora and levia minora. There are abrasions around periurethral and blood was clotted on abrasions. These injuries were also corroborated by the statements given by PW16 Dr.Sumitra Sharma and PW17 Dr.T.C. Acharya. According to the post-mortem report, following injuries were found on the person of the deceased:- 1) Abrasions:- All over Lt.side face, neck & forehead. 2) Bruise 2x2cm above Lt.eye brow 3) Lacerated wound:- Lt.side of upper lip. 5X1cm x ½cm. 4) Lacerated wound 1½ x1/2x½cm. Lt.side forehead. 5) Bruise 1½x1½ cm. Lt.side forehead of hairline 6) Lacerated wound 1x1½ x through & through just below upper lip. Left side. 7) Lacerated wound 2½x1x½cm. Rt.Post vesicular region. 8) Bruises all over Lt. vesicular region & Lt. shoulder 9) Bruise 3x2cm sacral region, 10)Bruise 1½x1cm interscopular region, 11)Lacerated teeth sockets missing teeth of upper central, lateral insizer canine teeth were broken. Note:- All injuries are ante mortem & duration within 24 hrs. 12)Fracture of mandible (Lt.). Injuries of teeth mentioned in Column No.5 are injuries of external injuries. In the post-mortem report, medical board has opined the following cause of death of deceased Radha:- “In opinion of the board, the cause of death is traumatic & hemorrhagic shock. There are multiple injuries over body.” We have analyzed the evidence minutely and in great detail because we want to satisfy ourselves as to DBCR.APPEAL NO.672/04. 10 the justification of award of sentence of life imprisonment for offence under Section 376(2)(f) IPC as well as for offence under Section 302 IPC. Despite the fact that deceased was aged 7-8 years and accused appellant was fellow worker of her father Kamal, he committed such a diabolic offence. Evidence, which came on record, shows that they were employed with the same band master. The accused was frequent visitor to his house. His wife was believing the accused as their family friend. Accused taking advantage of this situation, took the deceased with him by alluring her to get her some eatables. Radha, a child of aged seven years, easily fell into the trap and accompanied him. Accused forcibly committed rape upon her, which fact is evident from the report of the medical board, which has found the following injuries around her genitals:- 1) Her perineum was found ruptured with blood clotted thereon. 2) Hymen was swollen and 3) Vagina was contused allowing one finger therein. Exh.P.1 is the site plan of the place where incident has taken place in the lane behind the house of Roopesh. While dead body of Radha was recovered, accused arrested vide Exh.P.23 and at the time of his arrest, following injuries were found on the person of the accused:- 1) abrasions and bruises on his both elbows, 2) right knee, 3) right chest and 4) at the back. All the injuries received by deceased Radha on her genitals have been found to be ante mortem in DBCR.APPEAL NO.672/04. 11 nature. Injuries found on the person of accused appellant clearly indicate that he received such injuries while he was committing rape on female child aged 8 years. He has received injuries on both his elbows and right knee. He has also received injuries on the right chest and at the back. Contention that there are missing links in the chain of circumstances against appellant and further contention that the chain was not so complete as to rule out every other possible hypothesis that may be compatible with the innocence of the accused appellant, is noticed to be rejected. Not only, PW1 Nirmala mother of the deceased is the witness, who lastly saw deceased Radha accompanying accused Mukesh, PW6 Gopal Harijan also proved the fact that he saw the deceased in the company of the accused appellant about 4 p.m. on the day of incident. There is then another witness i.e. PW3 Radheyshyam, elder brother of the father of deceased PW4 Kamal, who was immediately informed by mother of the deceased, PW1 Nirmala that accused Mukesh had taken Radha on the pretext of getting her some eatables. She also immediately informed PW4 Kamal about the same. Their narration would also be relevant fact for the purpose of present matter because they were the once, who were immediately informed by PW1 Nirmala that Radha had gone with accused Mukesh. This fact was proved in the court by Radheyshyam and Kamal that they were informed by PW1 Nirmala immediately thereabout. Then, conduct of the accused that he was not immediately traceable when PW1 Nirmala, PW3 Radheyshyam and PW4 Kamal made visits to his house to ascertain whereabouts of both, deceased- DBCR.APPEAL NO.672/04. 12 Radha and accused Mukesh. He could however be available only on the following day when dead body of the deceased was found. Recovery of the cloth and the stone was made at the instance of accused appellant. Chain of circumstances against the accused therefore is indeed so complete to rule out every other hypothesis that may be compatible with the innocence of the accused appellant. In other words, circumstances points to the involvement of the accused in the crime, who committed offence of rape as well as murder of deceased Radha. We therefore do not find any infirmity in the impugned judgment of conviction and sentence passed by the trial court. The appeal is accordingly dismissed. (DR.MEENA V.GOMBER), J. (MOHAMMAD RAFIQ), J. Anil/38 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW