Criminal Appeal No. 1000 and 1036 of 2006, 1743 of 2007 and 394 of 2009. Case: 1. Pawan, 2. Arjun, 3. Aamir, 4. Babu Vs State of Uttaranchal. Supreme Court

Case Number:Criminal Appeal No. 1000 and 1036 of 2006, 1743 of 2007 and 394 of 2009
Party Name:1. Pawan, 2. Arjun, 3. Aamir, 4. Babu Vs State of Uttaranchal
Counsel:For Appellant: T.V. George, L.C. Goyal, Jyoti Bansi and Ranjana Narain, Advs. and For Respondents: S.S. Shamshery, Jatinder Bhatia and A.P. Sahay, Advs.
Judges:S.B. Sinha, Asok Kumar Ganguly and R.M. Lodha, JJ.
Issue:Juvenile Justice (Care and Protection of Children) Act (56 of 2000) - Section 7A; Indian Penal Code (45 of 1860) - Sections 376, 300, 34; Criminal Procedure Code (2 of 1974) - Section 154
Citation:2009 CriLJ 2257, 2009 (3) SCALE 195, 2009 (3) UJ 1237 (SC)
Judgement Date:February 26, 2009
Court:Supreme Court


R.M. Lodha, J.

  1. Leave granted in S.L.P. (Crl.) No.5209/2006. The appellants in these four appeals suffered death sentence for the offence punishable under Section 302/34 IPC, at the hands of Additional Distt. and Sessions Judge, First Fast Track Court, Nainital. The trial court also convicted the appellants for the offences punishable under Sections 376 and 377, IPC and sentenced them to life imprisonment. Each of the appellants was also convicted for the offence punishable under Section 201/34, IPC and sentenced to undergo seven years rigorous imprisonment and fine of Rs.2,000/- and in default in payment of fine, additional imprisonment of six months. Since death sentence was awarded, the trial court made a reference to the High Court for confirmation. The appellants challenged the judgment of the trial court in separate appeals before the High Court of Uttaranchal at Nainital. The death reference and appeals were heard together. Vide judgment dated July 12, 2005, the High Court maintained the conviction of the appellants under Sections 302/34, 376 and 201/34, IPC. The sentence of death awarded under Sections 302/34, IPC to each of the appellants was commuted to that of rigorous imprisonment for life. The sentence awarded by the trial court under Sections 376 and 201/34, IPC, was maintained. The High Court, however, acquitted the appellants of charge under Section 377, IPC and their conviction and sentence under this count was set aside. It is from the judgment dated July 12, 2005 that these four criminal appeals by special leave arise.

  2. Amar Singh (PW-4) is a migrant labourer from Nepal. He and his minor daughter Sushma aged six years were residing in the locality known as Raj Mahal Hotel Compound Mallital, Nainital. On September 25, 2003 at about 8.00 A.M. Sushma left her home to ease herself. When she did not return for quite some time, she was looked for in the market, around the lake and near about by her father but of no avail. Despite frantic efforts when her whereabouts could not be known, PW-4 reported her disappearance (Ext.Ka-10) at around 4.00 P.M. at Police Station, Mallital. The night became horrendously eventful for PW-4; he and three migrant labourers from Nepal, namely, Veer Bahadur (PW-2), Puran (PW-3) and Mangal (PW-5) were waiting for Sushma to return. At about 1.30 A.M., four persons came from the side of the road up to vacant plot of one Sardarji in that locality and were seen throwing the dead body of a girl from the gunny bag in that plot. The gunny bag was also thrown over there. PW-2, PW-3, PW-4 and PW-5 raised alarm and caught hold of them; they were Babu (A-1), Aamir (A-2), Pawan (A-3) and Arjun (A-4) and the dead body was of Sushma (victim). A-1, A-2, A-3 and A-4 were taken to the Police Station, Mallital.

  3. PW-4 lodged the written report at about 2.00 A.M. (September 26, 2003) and a case under Sections 302/201/34 IPC was registered against A1, A-2, A-3 and A-4. Their formal arrest was made. In the morning of September 26, 2003 at about 6.30 A.M. seizure memo of the dead body was prepared by the investigating officer Bachhan Singh Rana (PW-11). Dr. K.S. Dhami (PW-1) conducted post-mortem of dead body of Sushma at about 1.00 P.M. The accused persons were also sent for medical examination. On the basis of the disclosure statement A-1 and A-2, two feet long electric wire of yellow colour from the house of Ramesh Monga situate near Sanwal School where the accused were then residing was recovered vide Memo (Ext. Ka-6-A)

  4. On September 27, 2003, while A-1, A-2, A-3 and A-4 were in District Jail, Nainital, their underwears were seized and sent for chemical examination to Forensic Science Laboratory, Agra. The Pyajama and other items of victim were also sent to Forensic Science Laboratory, Agra.

  5. After receipt of the post-mortem report, the offences under Sections 376 and 377 IPC were also added.

  6. Aamir's statement under Section 164, Cr.P.C. was recorded by the Judicial Magistrate, Nainital on October 7, 2003.

  7. The investigating officer on completion of investigation submitted charge sheet against A-1, A-2, A-3 and A-4 for the offences punishable under Sections 302/34, 376, 377 and 201/34 IPC. The Chief Judicial Magistrate, Nainital, took cognizance and committed the case to the Sessions Judge, Nainital which was transferred to the court of Additional Distt. and Sessions Judge, First Fast Track Court, Nainital. 8. The defence of the accused persons was one of simple denial. They stated that they have been falsely implicated in the case.

  8. Dr. K.S. Dhami (PW-1) who conducted post mortem examination on the dead body of victim found following injuries.

    Labiamajora are separated. Hymen ruptured. Reddish secretion inside the vagina. Rectum - laceration and abrasion around the external region on separation of gluteal fold large rectal canal is visible which is dilated. Spintsers are damaged. There is blood present in the anal canal. Mucosa is also damaged. Both rectal and vaginal smears are taken. There is well defined ligature mark on the upper part of neck slightly depressed and encircling the neck horizontally and completely. Colour is reddish and margins are ecchymosed. On dissection of ligature mark there is extra vassion of blood into the sub cutaneous tissue under the ligature mark as well as adjacent structures.

    Dr. K.S. Dhami (PW-1) recorded cause of death being asphyxia as a result of strangulation. These injuries according to Dr. K.S. Dhami were sufficient in the ordinary course of nature to cause death.

  9. On the basis of the medical evidence, no doubt is left that victim died of homicidal death and that she was raped before being murdered. The medical evidence shows that her hymen was ruptured; labiamajora separated and there was reddish secretion inside the vagina. These are indicative of having the sexual assault. Dr. K.S. Dhami further opined the rape on the deceased is possible to have occurred during the time of 8.00 A.M. on September 25, 2003 to the night (intervening night between September 25 and 26, 2003). The evidence of Dr. K.S. Dhami has gone unchallenged in so far as A-3 and A-4 are concerned and in his cross examination on behalf of A-1 and A-2, nothing has been elicited which may cast doubt with regard to his testimony.

  10. There is no eye witness account and the case depends wholly upon circumstantial evidence.

  11. When a case rests on circumstantial evidence, such evidence must satisfy oft-quoted tests viz: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

  12. Where the entire case hinges on circumstantial evidence, great care must be taken in evaluating circumstantial evidence to ensure that the circumstances on which the prosecution relies are wholly consistent with the sole hypothesis of the guilt of the accused.

  13. Legal principles with regard to the circumstantial evidence in criminal trial have been explained by this Court time and again; the first in long line of these cases being Hanuman Govind Nargundkar v. State of M.P. [AIR (1952) SC 343] and of late, State of U.P. v. Satish (2005)3 SCC 114. Reference to all these decisions is not necessary as we have already noticed these principles in preceding paragraphs. However, Mr.T.V. George, learned counsel appearing for A-3, referred to a decision of this Court in the case of Shankarlal Gyarasilal Dixit vs. State of Maharashtra, (1981) 2 SCC 35 which we may refer to. The learned counsel relied upon the following observations made therein:

    ".....It is not to be expected that in every case depending on circumstantial...

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