HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Criminal Jail Appeal No 7424 of 2007 Soadhey...............................v....................State of U.P. Hon. F.I.Rebello, CJ Hon. Imtiyaz Murtaza, J.
(Delivered by Hon. Imtiyaz Murtaza, j.) Present Appeal has been preferred from Jail assailing the judgment and order dated 2.8.2001 rendered by Addl Sessions Judge /Special Judge (E.C.Act) Rampur in S.T No 141 of 1999 whereby the appellant has been convicted for offences under section 302/377/201 IPC and sentenced to suffer imprisonment for life.
The report of the occurrence was lodged on 27.9.1998 by Hanspal, complainant, who is father of ill-fated six year old son namely, Arjun, an innocent child, who has been a victim of the abuse by his own maternal uncle. The child was initially sodomized and subsequently murdered by his real maternal uncle namely Soadhey to screen himself from his misdeed. The offence is alleged to have been committed in the intervening night of 15/16.9.1998 at about 4 am in the precincts of factory where the appellant was working and used to sleep. It is alleged by Hanspal father of the deceased that the appellant was his brother in law (wife's brother) and that Hanspal alongwith his wife and three children used to reside in the quarters assigned to him by the factory outside factory premises where he worked for his livelihood. It is further alleged that six months prior to the occurrence, the appellant alongwith Tulsi and Rampal had shifted to Rampur and got employed in the factory. It is further alleged that the deceased was emotionally attached and felt great affection for his Mama i.e. appellant. It is also alleged that the appellant used to sleep in the factory and whenever the deceased awoke from the sleep during night, he often desired to be with the appellant. The facts of the case shorn of unnecessary details are that on the day of occurrence, the deceased woke up at 4 am and insisted to go to the appellant. It is alleged that he and his wife tried to dissuade him but he left for the factory. It is also alleged that Chowkidar of the factory also accosted him upon which the deceased went inside the factory stating that he was going to meet his maternal uncle. In the morning, he went looking for his son but neither he nor the appellant was to be found anywhere. It is also alleged that he relentlessly searched for his son and also for the appellant. It is also alleged that 3-4 days prior to lodging of the FIR, the appellant stumbled across one Ayodhyapal and Kalyan Singh in Rudrupur and at that time, he seemed to be flabbergasted and confessed to them that he had committed a grave mistake and they should intervene in the matter to placate his brother-in-law upon which the aforesaid persons assured him to do the needful and asked him to come over to them. On 27.9.1998, the appellant came to the house of Ayodhyapal. The complainant it is alleged, also arrived there and on being asked about the whereabouts of the child, he blurted out the truth saying that on the day of occurrence, he had committed sodomy with the deceased and since the deceased had threatened to inform his parents, this frightened him too much and he took Arjun in the toilet nearby and strangulated him to death and the dead body was thrown in the nearby sugarcane field. The complainant alongwith others took the appellant to the place as indicated by him where they found skeleton of the deceased alongwith red bush-shirt, knicker etc and he identified the body on the basis of the cloths which the deceased at that time was wearing. It is further alleged that the appellant was taken to police station with the help of factory colleagues.
The investigation was taken over by S.H.O Jeeraj Singh who visited the place of occurrence and collected the skeletons and prepared recovery memo. He also recovered cloths etc and prepared recovery memo. The investigating officer also conducted inquest and prepared inquest report which is Ex Ka 7. He also prepared site plan Ex 5. After completing investigation, the charge sheet was submitted in the court.
As stated supra, aggrieved by the judgment and order in which the appellant has been convicted and sentenced as aforesaid, present appeal from Jail has been preferred.
We have heard learned counsel for the appellant namely, Ramesh Sinha, who was appointed as Amicus Curiae to argue on behalf of the appellant. Sri Sinha argued the case elaborating on each and every arguable points. We have also heard learned AG..A. We have also been taken through the materials on record.
The prosecution in order to substantiate the allegations/charges, has examined in all six witnesses out of which PW 1 Hanspal is father of the deceased, PW 2 Barfi is the mother of the deceased, PW 3 Ayodhyapal is a witness before whom it is alleged, the appellant had confessed to his crime, PW 4 is Dr Anees, PW 5 is Anand Singh who was at the relevant time was Chowkidar of the factory, and PW 6 Jeeraj Singh is the investigating officer of the case.
Sri Sinha learned counsel argued the matter at prolix length. He assailed the judgment of the court below inter-alia contending that the court below has erred in relying upon the evidence of last seen and that the circumstances do not unerringly point to the guilt of the appellant. He challenged the finding contending that the prosecution has miserably failed to prove its case that the evidence produced in the case is not adequate and convincing to warrant the conviction. Lastly, it is argued that the sentence awarded in the facts and circumstances of the case errs on the side of severity. The learned counsel dilated upon following incriminating circumstances.
(i) the evidence of last seen
(ii) Extra Judicial confession
(iii) Recovery of skeleton and cloths of the deceased under section 27 of the Evidence Act.
The learned counsel appearing for the State resisted the above arguments, submitting that the court below is justified in convicting the appellant on the basis of evidence on record.
In order to appreciate the aforesaid rival contentions of learned counsel for the parties, we have independently scrutinized the oral and documentary evidence brought on record by the prosecution.
PW 1 Hanspal reiterated the contents as encapsulated in the FIR and deposed that on the day of occurrence his son Arjun deceased who was sleeping with his mother, had woken up at 4 am and had left for factory in order to be with the appellant. He further deposed that when in the morning he woke up, his wife told that Arjun had gone to the factory telling that he was going to join his Mama (maternal uncle). Thereafter he set out in search of his son and at the gate, Chowkidar also told him that his son had come and had gone inside telling that he was to meet his Mama. Thereafter, both he and chowkidar set out in search of his son and also the appellant but both were nowhere traceable. Subsequently, he was informed by Ayodhyapal and Kalyan Singh who were known to him that the appellant had met him in Rudrupur and confessed that he had committed a grave mistake. Subsequently, appellant came to meet Ayodhyapal at his house and at that place also he had confessed to his crime and on his pointing out, the skeleton of the deceased was recovered from the sugar cane factory.
In cross examination, he denied that he had lodged any report about disappearance of his son at the police station on the assumption that he was with his Mama and both would return sooner or later. However,he conceded that he was anxious and was constantly searching for his son. He admitted that after 8-9 days of the occurrence, appellant had met him in the factory but at that time he did not confess to his crime. He had not taken the appellant to the police station but he was left at the factory itself. He also stated that after he had given the written report at the police station, the police had come to his house and after inspecting his house and also the place where his son had gone to see his Mama, the police raided the house of Rampal brother of the appellant from where the appellant was arrested. At the time of his arrest, the appellant was sleeping in the house of his brother. The police had effected arrest of the appellant at about 10 or 10.30 pm. The next day the police came to his house alongwith appellant and took him in the police jeep conveying that it had got clue about his son. The knots of people also followed the police and the police directed all persons present there to search for the boy in the sugarcane field. He also stated that on the pointing out of the appellant the police recovered skull and bones. The cloths were also found stuck in the recovered bone and on the basis of cloths he identified the body to be that of his son. He also stated that his son was known to the Chowkidar. He denied that he made any sustained enquiry from the Chowkidar. He denied the suggestion that he had falsely foisted the case on the appellant and that his son had disappeared and was nowhere traceable and that the appellant had nothing to do with the disappearance of his son.
The next witness is Barfi who is arrayed as PW 2. She reiterated the version of PW 1 in all material aspects. The quintessence of her statement is that the deceased who was aged 6 years had woken up at 4 am on 16.9.1998 and after urinating, he started insisting that he would go to his Mama. She deposed that she tried to dissuade but he did not relent. Thereafter, she had gone alongwith his son and had left his son at the gate of the factory asking Chowkidar to deliver her son in the company of his Mama. In the morning, neither Sodhey or her son was to be seen anywhere and therefore, search was started. She also stated that when Chowkidar was asked about whereabouts of her son, he told that Sodhey had taken the boy outside factory stating that he was taking the boy for relieving himself.
In the cross examination, she stated that her son was emotionally attached to his Mama and being emotionally attached, he always desired to be with his Mama. On that day also he had woken up at 4 am and he was left at the gate of the factory. She also stated that at the relevant time, her husband was asleep. She also stated that she knew Ayodhyapal but she denied to have known Kalyan Singh. She also stated that when she had left her son at the gate of the factory at that time he was wearing Bushshirt and knicker. The knicker was of Khakhi colour. The bush shirt was of green colour interspersed with red and white imprint. She also stated that Sodhey used to come to her house to take his food and that he was not charged anything for his meal. She denied that she was naming the appellant under duress from her husband.
PW 3 Ayodhyapal also supported the prosecution case in all material details. He deposed that Hanspal used to reside in factory quarters which were outside the factory while he used to reside in factory quarter which was situated inside the factory. He deposed that on the day of occurrence, the deceased had left to bewith his Mama at 4 am and when in the morning, Hanspal did not find his son in the factory, he discussed it with him and a search was undertaken by all the persons. The material part of his evidence is that six days prior to lodging the FIR Sodhey had met him in Rudrapur and at that time, he was accompanied with Kalyan Singh and immediately, he conveyed to him that he was being searched by his brother in law upon which he broke down saying that he had committed a grave mistake and he should get it reconciled upon which he assured the appellant asking him to come over to his house. After 2-3 days, the appellant again came across him at Culvert where he had gone to take tea and while he was conversing with the appellant, Hanspal and his wife also arrived there. When Hanspal and his wife enquired about Arjun, the appellant broke down and started crying reproaching himself that he had committed grave mistake and sought to be forgiven. On listening to the precise details leading to gruesome murder, Hanspal and his wife started weeping bitterly. They were consoled and the accused was taken to the place indicated by him where skeleton and bones were found lying. The appellant was taken to the police station and thereafter, the police was taken to the field where all formalities were completed including proceeding relating to inquest.
In cross examination, he stated that the factory had two exit points and the two gates are manned by Chowkidars. He also stated that in all, the factory is manned by six chowkidars. He also stated that the toilet was situated outside factory at the end of quarters. He also stated that a toilet was also constructed inside the factory but he explained that the occurrence took place in the toilet situated outside the factory. He reiterated that initially appellant had met him in Rudrupur and thereafter he had met him at the culvert outside the factory. He also stated that Hanspal had not reported for duty in factory as he was constantly searching for his son. He denied the suggestion that the skeleton was not recovered on the pointing out of Sodhey. He also denied the suggestion that he was deposing falsely on being pressurized by Hanspal.
The next witness is Dr Mohd Anis Ansari, PW 4 who conducted post mortem of the skeleton received in sealed cover. He deposed that the skeleton was of a male child between the age of 6 to 8 years. He could not opine about the duration of death. In cross examination, he stated that there was no flesh or skin on the bone and likewise the skull too was without any hair or skin. He denied that a forged report was prepared.
The next witness is Anand Singh PW 5. He deposed that he and Hanspal were working in the same factory and appellant was also working in the said factory. He also deposed that appellant used to reside at the house of his brother in law and on the day of occurrence, he was asleep in the factory. The deceased Arjun had gone in the factory and he had taken Arjun to his Mama. At about 4.30 am, the appellant came at the gate of the factory with Arjun and took Arjun outside the factory informing that he was taking Arjun to relieve himself. Thereafter, he also deposed, appellant came back all alone. He also deposed that he did not enquire about Arjun from Sodhey. He also deposed that thereafter he did not see Arjun alive.
In cross examination, he stated that he had worked in the factory as Chowkidar for a period less than a year. At that time, only two Chowkidars were deployed and each of them used to work for 12 hours. He also stated that the quarter of Hanspal was at a distance of 10 to 15 steps from the gate of factory. He also stated that Arjunpal was brought by a worker of the factory but he could not tell his name. He denied the suggestion that he was not at the relevant time serving as Chowkidar and that the occurrence did not occur as alleged by him. He also denied the suggestion that he was deposing falsely wilting under the police pressure.
The next witness is Jeeraj Singh PW 6 who was then SHO Police Station Bilaspur and had conducted investigation of the case. He deposed that the FIR was lodged in the police Station in his presence on 27.9.98 at 4.40 pm. After recording statement at the police station of complainant Hanspal he set out for the spot where he supervised the conduct of inquest proceeding on the skeleton of the deceased Arjunpal recovered from the spot. He also deposed that the complainant recognised the body on the basis of cloths recovered from the spot. He also deposed that at the time of recovery of skeleton, appellant Sodhey was also present on the spot and the recovery was made on the pointing out of the appellant. He also deposed that on 5.10.98. the site plan was prepared. On 6.10.98 charge sheet was submitted in court after completion of investigation.
In cross examination, he stated that the complainant did not lodge any report about disappearance of his son. He denied the suggestion that the entire proceeding was conducted by him while ensconced in the police station. He also denied that a false case was set up against the appellant and he was falsely implicated in the case. He also stated that inquest was carried in his presence.
Before coming to grips with the arguments, we would, at the very threshold, like to quip that there is no direct evidence to abridge the gap between the appellant and the crime and the entire prosecution case hinges on circumstantial evidence. This being a case having precariously on circumstantial evidence, it would be but appropriate to quip here that in a series of decisions, the Apex Court has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests.
"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and inescapable 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."
The Sessions Judge in recording the findings of conviction has reckoned with following incriminating circumstances against the appellant-
(1) the deceased was last seen with the appellant (2) the extra-judicial confession which the appellant made before the PW 3 Ayodhyapal and also before Kalyan Singh and (3) the recovery of skeleton and cloths of the deceased under section 27 of the Evidence Act on the pointing out of the appellant.
The first incriminating circumstance which we would like to take up is of last seen of the appellant in the company of the deceased. In connection with this circumstance, we feel called to scrutinise the relevant evidence on the record. The first evidence which has bearing on this circumstance is that of PW 2 Barfi, mother of the deceased Arjunpal. The quintessence of her evidence is that deceased Arjunpal was sleeping beside her in the night. At about 4 am, he woke up from the sleep and demanded water and thereafter, he went to urinal for passing water. Thereafter, he insisted that he would go to his Mama (maternal uncle)/appellant. Initially, she tried to dissuade him but when he persisted, she took him and left him at the factory gate asking watchman to carry and leave him with his Mama (Maternal uncle). She also deposed that she stayed at the gate till Watchman had come back after leaving the child with Soadhey appellant. She also deposed that at 5 am when she looked for Arjun and Soadhey, they were nowhere to be seen. In quintessence, her testimony is that she had left the deceased in the company of the appellant and thereafter, the deceased was not seen alive.
The next witness whose testimony lends support to the circumstance of last seen is that of PW 5 Anand Singh. PW 5 Anand Singh was at the relevant time watchman on duty at the factory gate. He deposed that the deceased was well known to him further deposing that he was the son of Hanspal who was serving in the factory. He also deposed that appellant Soadhey also worked in the same factory. On the relevant date, he deposed, he had taken the deceased and left him in the company of the appellant Soadhey at about 4 am. He also deposed that at about 4.30 am Soadhey Appellant came with the deceased at the gate and while going out with child, he had told the witness that he was taking the child to toilet as he wanted to answer the call of nature. He also deposed that thereafter, the appellant was seen coming inside the factory all alone.
Having considered both the aforesaid testimony, it litters our minds with no manner of doubt that the deceased was last seen in the company of the appellant and thereafter, the deceased was not seen alive. There is no explanation forthcoming from the deceased as to what happened to the deceased. He could not explain as to when the deceased parted company with the appellant. It has not been suggested by the appellant that he had entrusted the child to the care of his parents at the house. The appellant has merely denied the suggestion without any plausible explanation. By this reckoning, we have no alternative but to lend credence to the testimonies of the aforesaid witnesses that the deceased was last seen in the company of the appellant. By this reckoning, we are of the view that the prosecution has fully brought home the circumstance by reliance and cogent evidence.
The view being taken by us finds echo in the decision of Joseph v State of Kerala (2005) 5 SCC.
"During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed......."
The counsel for the appellant also assailed the consideration of this incriminating circumstance by the Sessions Jude on the premises that the Sessions Judge did not give any opportunity to the appellant to explain this circumstance and pointed out that no question was put to the accused under section 313 Cr.P.C to explain this incriminating circumstance.
We have given our anxious consideration to the submissions and we are afraid we do not find the submission to be loaded with any substance on the ground that the counsel for the appellant failed to point out that this want of opportunity has resulted in any prejudice in his defence. It is worthy of notice here that the witnesses were extensively examined on this point but nothing tangible could be elicited to throw doubt on their testimony. Relevant on this point is the latest decision of the Apex Court in Paramjeet Singh v State of Uttarakhand (2010) 10 SCC 439 at page 451.
"30. Thus, it is evident from the above that the provisions of section 313 Cr.PC make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused n opportunity to explain the same. But, it would not be enough for the accused to show that he has not een questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."
The next circumstance to be reckoned with is extra judicial confession. The Sessions Judge gave credence to the extra judicial confession of the appellant made to PW 3 Ayodhya Pal. The quintessence of deposition of Ayodhyapal is that about six days after disappearance of the child, the appellant came across him at Rudrupur and at that time, Kalyan Singh was with the witness. He deposed that at the time when he came across Soadhey, the appellant appeared to be panicky and asked him to arrange his meeting with Hanspal uttering that he had committed a grave sin upon which he asked the appellant to come over to his house. He also deposed that 2-3 days thereafter, Soadhey again met him at the culvert where he had gone to have tea. While he was busy talking with Soadhey, Hanspal and Burfi also came there. Upon seeing them, the appellant broke down and while weeping, he narrated the events leading to the murder of the deceased. To be precise, the appellant confessed that he had committed sodomy on the deceased and when the deceased threatened to inform his parents, he had committed the murder and threw his body in the field towards south of the factory. Thereafter, he further deposed, the appellant took them to the field where skeleton of deceased with cloths was lying. The appellant, thereafter, was taken to the police station and police came to the spot alongwith Soadhey and prepared recovery memos etc. It is well enunciated by a stream of decision that the evidentiary value of the extra-judicial confession must be judged in the facts and circumstances of each individual case. Extra-judicial confession, if voluntarily made and fully consistent with the circumstantial evidence, no doubt, establishes the guilt of the accused. The extra-judicial confession, if voluntary, can be relied upon by the court alongwith other evidence in convicting the accused. However, the extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved, can be relied upon by the courts.
We have very carefully scanned the extra judicial confession which is corroborated by recovery of skeleton and cloths of the deceased. It is worthy of notice here that the First Information Report lodged at the police station finds mention of extra-judicial confession of the appellant. The appellant was also taken to the police station. Having carefully examined his testimony, we find nothing impeachable in his evidence nor does it suggest that he was set up to bolster up the prosecution case. From a scrutiny of his evidence, we find that the witness has described the confession of the appellant in a very truthful manner. In the facts and circumstances, we have not a modicum of doubt to say that the Sessions Judge has rightly placed credence upon the extra-judicial confession made by the appellant.
The third and last incriminating circumstance to be reckoned with is of recovery of skeleton and cloths of the deceased and its significance vis-a-vis section 27 of the Evidence Act. In this connection, we would like to advert to the testimonies of PW1, PW 2 and PW 3. From a scrutiny of the testimonies of the above witnesses, it would transpire that the testimonies clearly mention that on the pointing out of the appellant Soadhey, clothes and skeleton of the deceased were recovered from the field. It is also obvious from the testimonies that the witnesses had identified the dead body on the basis of the cloths of the deceased which he was wearing before his death. In this connection, the decision of Apex Court in Jarnail Singh v State of Punjab (2009) 9 SCC 719 is worthy of notice. The relevant observation of the Apex Court at page 728 is excerpted below.
"In the instant case as the dead body of Jaldhar had been identified by two fellow labourers and the medical evidence is same as that of ocular evidence and the dead body was found with the clothes which Jaldhar was wearing at the time of incident, the issue of identification does not require any further consideration".
As a result of foregoing discussions, we are of the irresistible view that the appeal must fail.
It is accordingly dismissed. The judgment and order rendered by the Sessions Judge are affirmed. The appellant is incarcerated in jail. He shall serve out the sentences as awarded by the trial court by means of judgment and order dated 2.8.2001 in S.T No 141 of 1999 whereby the appellant has been convicted for offences under section 302/377/201 IPC and sentenced to suffer imprisonment for life.
The office shall proceed accordingly in the light of the judgment of this Court. The lower court record shall be sent back to the court below accordingly.
MH May.24......2011