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Gobari Lal Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Jail Appeal No. 286 of 2001
Judge
Reported inRLW2004(3)Raj1645; 2004(2)WLC52
ActsIndian Penal Code (IPC) - Sections 201, 302 and 376
AppellantGobari Lal
RespondentState of Rajasthan
Appellant Advocate S.P. Poshwal, Amicus Curiae
Respondent Advocate Rizwan Alvi, Public Prosecutor
DispositionAppeal dismissed
Cases Referred and State of Maharashtra v. Damu
Excerpt:
- - poshwal, learned amicus curiae contended that none of the pieces of incriminating circumstantial evidence relied upon by the trial court are complete and on the basis of such incriminating circumstantial evidence the appellant has been convicted on the basis of suspicion only and suspicion however strong can not take place of proof. trachea was found badly lacerated. scrotum, testicles and penis of the appellant were found well developed......(women atricities & dowry cases) kota in sessions case no. 378/97 for having committed murder of madhu. learned judge vide judgment dated january 20, 2001 convicted and sentenced the appellant as under:-section 302 ipc to suffer imprisonment for life and finers. 2000/-, in default further suffer six monthsrigorous imprisonment.section 376 ipc to suffer ten years rigorous imprisonment andfines rs. 2000/-, in default further suffer sixmonths rigorous imprisonment.section 201 ipc to suffer three years rigorous imprisonment andfine rs. 1000/-, in default further sufferthree months rigorous imprisonment.sentences were ordered to run concurrently.(2). madhu, a girl of 16 years of age, who left her house on may 4, 1997 at 5.00 pm for jungle in order to attend the call of nature, did not.....
Judgment:

Shiv Kumar Sharma, J.

(1). The appellant was indicted before the learned Judge Special Court (Women Atricities & Dowry Cases) Kota in Sessions Case No. 378/97 for having committed murder of Madhu. Learned Judge vide judgment dated January 20, 2001 convicted and sentenced the appellant as under:-

Section 302 IPC To suffer imprisonment for life and fineRs. 2000/-, in default further suffer six monthsrigorous imprisonment.Section 376 IPC To suffer ten years rigorous imprisonment andfines Rs. 2000/-, in default further suffer sixmonths rigorous imprisonment.Section 201 IPC To suffer three years rigorous imprisonment andfine Rs. 1000/-, in default further sufferthree months rigorous imprisonment.Sentences were ordered to run concurrently.

(2). Madhu, a girl of 16 years of age, who left her house on May 4, 1997 at 5.00 PM for jungle in order to attend the call of nature, did not return back and her half naked dead body was found lying in a trench. A written report (Ex.P-5) was lodged by informant Shri Nath (PW.2) with the Police Station Kanwas where a case under Section 302 IPC was registered and investigation commenced. Inquest report was drawn, dead body was subjected to post mortem, statements of witnesses under Section 161 Cr.P.C. were recorded, the appellant was arrested and injuries found on his person were examined. On the basis of information supplied by the appellant Chhurri, pant, shirt and shoes were recovered and recovery memos were drawn. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Women Atrocities & Dowry Cases) Kota. Charge under Sections 302, 376 and 201 IPC was framed against the appellant who denied the charge and claimed trial. As many as 25 witnesses were examined by the prosecution in support of its case. In the explanation under Section 313 Cr.P.C. the appellant claimed innocence and stated that he was falsely implicated in the case. No witness in defence was however examined. On hearing final submissions the learned trial Judge convicted and sentenced the appellant as indicated herein above.

(3). The prosecution case depends on circumstantial evidence which broadly speaking is two fold. In the first category the testimony of Ramkanya (PW.3), Kasturi Bai (PW.6) and Babu Lal (PW.7), who had seen Madhu going towards jungle with a pot of water. The evidence of second category comprises the disclosure statement of the appellant, recovery memos of blood stained clothes, knife (Chhurri) and shoes. One more connecting evidence is the FSL reports.

(4). It is trite that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established, all the circumstances should be conclusive in nature, all the facts so established should be consistent only with the hypothesis of guilt of accused and the circumstances should not capable of any other hypothesis except the guilt of the accused and chain of evidence should not leave any reasonable ground inconsistent with the innocence of the accused. The evidence of least suspicion cannot take place of proof. It would, therefore, necessary for us to examine the circumstances relied upon by the learned trial Judge and to find whether on the material on record it is possible to hold such circumstances taken together can be said to be completed which point to the guilt of appellant rather than his innocence.

(5). Mr. S.P. Poshwal, learned Amicus Curiae contended that none of the pieces of incriminating circumstantial evidence relied upon by the trial court are complete and on the basis of such incriminating circumstantial evidence the appellant has been convicted on the basis of suspicion only and suspicion however strong can not take place of proof. There are many missing links of the prosecution case. The evidence of recovery at the instance of appellant suffers from legal infirmities as no exclusive possession of appellant over the house, from where clothes were recovered, was established. Reliance is placed on Ganesh Lal v. State of Rajasthan (1), Ved Prakash and Anr. v. State of Rajasthan (2), Bablu @ Babulal v. State of Rajasthan (3), Nihal Singh and Anr. v. State of Rajasthan (4), Kevji and Ors. v. State of Rajasthan (5), Umrao Singh v. State of Rajasthan (6), Smt. Mathra v. State of Rajasthan (7), Salim Akhtar alias Mota v. State of Uttar Pradesh (8), Sarvan v. State of Rajasthan (9), and State of Maharashtra v. Damu (10).

(6). Per contra, learned Public Prosecutor supported the impugned judgment and urged that all the circumstances are of conclusive nature and have been fully established and they are consistent only with the hypothesis of the guilt of the appellant.

(7). We have pondered over the rival submissions and scanned the material on record.

(8). A perusal of the judgment of trial court shows following pieces of incriminating circumstances of circumstantial evidence having been found proved so as to hold the appellant guilty of the offence charged:-

(i) After Madhu (deceased) had gone towards the trench, appellant was seen wandering nearby.

(ii) Injuries caused by human bite were found on the index fingers of the appellant.

(iii) Blood of group 'B' belonging to the deceased was found on the shirt of the appellant.

(iv) Knife (Chhurri) recovered at the instance of the appellant was found stained with blood of group 'B' belonging to the deceased.

(v) On medical examination the appellant was found potent and no smegma was seen over his glans.

(vi) As per medical evidence rape was committed on the deceased and death was homicidal.

(vii) Chaddi of deceased got recovered and as per FSL report Chaddi was stained with semen.

(viii) Chance shoe-impression moulds were found similar with that of the specimen of shoe sole of the appellant.

(9). The appellant was arrested on May 6, 1997 at 5.20 PM vide Ex.P-54 and at the time of his arrest as many as 6 injuries were found on his person. Soon after the arrest i.e. on May 6, 1997 at 6.00 PM, he gave information that Salwar, Chappals and pot (Lota) were kept in the trench and he could point out the place. Pursuant to the information given, the appellant led the police accompanied by Panch-witnesses to the trench and got recovered Chappals, Salwar and pot (Lota). On May 8, 1997, the appellant gave three informations at 11.15 AM, 12.05 PM and 12.50 PM and got recovered knife (Chhurri) blood stained pant and shirt and shoes.

(10). Madan Lal (PW.1) who is the father of deceased Madhu, deposed that he did not have facility of lavatory in his house therefore all his family members used to go to the trench to ease themselves. He did see the dead body of Madhu lying in the trench half naked. She was ravished and blood was oozing from the incised wound of her neck. Informant Shrinath (PW.2) corroborated the testimony of Madan Lal and stated that depth of trench was around 25 feet and the width 6 feet. Dead body was concealed under the broken shrub, soil and grass and pieces of stones were forcely pushed in the mouth. There were thorns in the eyes. Shri Nath further deposed that some two-three years ago appellant was employed by Madan Lal for doing agriculture work in the field. Ram Kanya (PW.3), who is the grand-mother of deceased, stated that just two months before the incident Madhu told her that while she (Madhu) was taking bath, appellant was looking at her when she scolded him he told that not merely looking, he was thinking of coming nearer. Ram Kanya then took the appellant to task but he kept mum. Ram Kishan (PW.4) and Rajendra (PW.8) in their deposition stated that they found the dead body of Madhu in the trench of Kalisindh river, lying concealed under the soil and shrubs. Rukmani (PW.5) deposed that while the villagers had gone to search Madhu, appellant came to her and told her that he got his finger injured. She then put bandage over his finger. Kasturi Bai (PW.6) stated that Madhu met her on the way with a pot of water. Babu Lal (PW.7) deposed that on the date of incident he saw Madhu going towards the river with a pot of water. He had also seen appellant after about 10-12 minutes, going towards river. Om Prakash (PW.9) deposed that on the fatehful day he had seen the appellant near the trench. Dr. Y.K. Sharma (PW.17) performed autopsy on the dead body of Madhu and found as many as seven injuries, out of which one was stab wound over neck. Hymen was found torn. There were tiny abrasions on both sides of vaginal web, oozing blood. Trachea was found badly lacerated. Signs of recent forceful sexual intercourse were present. Cause of death was asphyxia due to ante mortem injury to trachea and lungs. Ram Swaroop (PW.18) stated that in his presence, appellant got recovered Salwar, water-pot, one pair of chappals, knife and underwear. Ram Prasad (PW.19) stated that in his presence the appellant got recovered pant, shirt and shoes from his house. Satya Narayan Sharma, AS1 (PW.20) lifted three chance shoe impression moulds from the trench. Dr. Laxmi Nath Meena (PW.21) examined injuries of the appellant and vide injury report (Ex.P-50) the appellant sustained as many as seven injuries thus:-

(i) Abraison 1/2' x 1/4' over Left maxillary region.

(ii) Abraison 1/4' x 1/4' over Right thigh.

(iii) Lacerated wound (Human bite) 1/2' x 1/4' x 1/4' over Left index finger.

(iv) Lacerated wound (Human bite) 1/4' x 1/4' x 1/8'over Right Index finger.

(v) Abraison 1/2' x 1/2' over Right knee.

(vi) Abraison-1/4' x 1/4' over Right Elbow. (vii) Abraison 1'x 1/2' over Left Elbow.

Scrotum, testicles and penis of the appellant were found well developed. There was no smegma over glans. In the opinion of Dr. Laxmi Nath Meena, appellant was potent and blood group of appellant was 'O' positive.

(11). Salient features of the case, noticed by us, may be summarised thus:-

(i) Madan Lal, the father of deceased Madhu, employed the appellant for doing agricultural work in his field some two-three years ago prior to the incident. The appellant had left the job after some time.

(ii) Just about two months before the incident, while Madhu was taking bath, appellant was found looking at her. When she scolded, the appellant told her that not merely looking, he was thinking of coming nearer.

(iii) On the date of incident, after Madhu reached at the trench to ease herself, appellant was seen wandering nearby.

(iv) When the villagers were hunting for search of Madhu, appellant went to Rukmani to get his injured fingers bandaged.

(v) Injuries caused by human bites were found on the index fingers of the appellant.

(vi) In the opinion of Medical Jurist appellant was potent and no smegma was found over glans. Blood group of appellant was 'O-positive'.

(vii) Blood of deceased Madhu was detected by FSL as of 'Group-B' and knife (Chhurri) and shirt recovered at the instance of appellant, were found stained with blood of 'Group-B'.

(viii) As per autopsy report cause of death of Madhu was stab wound over trachea. Her hymen was found torn, there were abrasions on both sides of vaginal web and blood was oozing. She was subjected to recent forceful sexual intercourse and her underwear was found stained with semen.

(ix) Appellant did not explain as to how and in what circumstances he sustained injuries on his index fingers, both the elbows, right knee, thigh and left maxillary region and why smegma was not found on his glans.

(x) Chance shoe-impression moulds were found similar with that of the specimen of shoe sole of the appellant.

(xi) Dead body of Madhu was found half-naked, concealed under the soil, shrubs and grass. Stones and thorns were found forcefully pushed into her mouth and eyes.

(12). From the material collected it appears that appellant had an eye on young Madhu. On the date of incident while she went to trench to ease herself, appellant chased her and finding her alone, he committed rape on her and killed her with knife. He thereafter, concealed her dead body under the soil, shrubs and grass. While struggling Madhu took bite on the index fingers of the appellant and in committing forceful intercourse on a rough surface with a young lady, the appellant sustained abrasions on his both elbows, knee and thigh. The evidence adduced by the prosecution is clear, cogent and unimpeachable. In the ultimate analyse, we find a combination of facts creating a network through which there is no escape for the appellant. The evidence collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. We find that the chain of circumstantial evidence against the appellant is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellant. Learned trial Judge, in our considered view, has not committed any error in convicting and sentencing the appellant and we confirm the impugned finding.

(13). For the reasons afore mentioned, we dismiss the appeal and maintain the conviction and sentence awarded to appellant Gobari Lal under Sections 302, 376 and 201 IPC.

(14). We however record our appreciation for the assistance rendered by Mr. S.P. Poshwal learned Amicus Curiae.


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