State Of U.P. vs Gaya Lal
2012 Latest Caselaw 2232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									                A. F. R.
 
Court No. - 25						                          (R E S E R V E D)
 
Case :- CAPITAL SENTENCE No. - 6 of 2008
 
Petitioner :- State Of U.P.     Respondent :- Gaya Lal
 
Petitioner Counsel :- Govt. Advocate
 
With
 
Case :- CRIMINAL APPEAL No. - 110 of 2009
 
Petitioner :- Gaya Lal Pasi      Respondent :- State Of U.P.
 
Petitioner Counsel :- In Person
 
Respondent Counsel :- G.A.
 

 
Hon'ble Abdul Mateen,J.

Hon'ble Sudhir Kumar Saxena,J.

(Delivered by Hon'ble Sudhir Kumar Saxena, J.)

This Criminal Appeal has been filed from jail challenging the judgment and order dated 05.12.2008 passed by Sri Alok Saxena, Additional Sessions Judge, Court no. 6, Hardoi, in S.T. No. 452 of 2007 convicting the appellant under Section 367, 302, 201, 377 read with Section 511 IPC and sentencing him with death penalty and a fine of Rs. 1,000/- under Section 302 IPC; rigorous imprisonment for five years with a fine of Rs. 1,000/- under Section 377/511 IPC; rigorous imprisonment for 10 years with a fine of Rs. 1,000/- under Section 367 IPC and three years rigorous imprisonment with a fine of Rs. 1,000/- under Section 201 IPC. Failure to deposit of fine would make him liable to additional punishment of one year rigorous imprisonment. All the sentences were to run concurrently.

Sri Alok Saxena, Additional Sessions Judge, Court No. 6, Hardoi has also made a Reference under Section 366 Cr.P.C. for confirmation of the death sentence awarded by him in the Sessions Trial No. 452 of 2007 (State Vs. Gaya Lal), P.S. Kotwali Dehat, District-Hardoi.

Since in both the matters validity of the judgment and order dated 05.12.2008 is to be examined, they are being disposed of by common order.

Appellant Gaya Lal while appearing in the Court had expressed his inability to engage a counsel, as such, Sri Amit Choudhary was appointed Amicus Curiae to represent him.

Heard Sri Amit Choudhary, counsel for the appellant, Gaya Lal, Sri Rishad Murtza, Government Advocate for the state and perused the lower court record.

Briefly stated the facts are that Gaya Charan lodged a report with the police of police station Kotwali Dehat, District Hardoi against Gaya Lal under Section 364, 302 and 201 IPC (Case Crime No. 120 of 2007) wherein it was stated that his son Sidh Pal aged about six years along with other children had gone towards west of the village at about 5 p.m. on 07.03.2007 for plucking plums (ber) from where Gaya Lal Pasi, resident of the same village enticed Sidh Pal and took him away. Next day, dead body of the boy was found in the wheat field of Chokhe Pasi and his neck was found tied by wheat stalk. Informant suspected that on account of enmity due to brawl that took place an year ago, Gaya Lal had murdered the boy. Vishwanath had seen Gaya Lal in the company of his son. Report was lodged on 8th March, 2007 at about 11 a.m, inquest report was prepared at 11:30 a.m. Suspicion of unnatural copulation was also expressed by signatories of the inquest. Body was sent for post-mortem which was conducted on 08.03.2007 at 4:15 p.m. Duration of death was found to be around one day and cause of the death was expressed by doctor 'due to asphyxia as a result of strangulation'. Following ante-mortem injuries were found on the body of the deceased:

I.A ligature of multiple wheat stem present around the neck with its knot present on back of the neck. On removing this ligature, there was found a ligature mark (under neath) of size 18 cm. X 2 to 3 cm., which was abraded, and present around the neck below the thyroid cartilage. Mark of grooved, abraded and contused.

II.On dissection, sub-cutaneous tissues were ecchymosed and margins were congested.

III.On dissection of neck, the trachea was found duly congested and tracheal rings were found fractured. Small blood clot was also present around the fractured area.

After investigation, police submitted chargesheet on 30th May, 2007 whereupon congnizance was taken by Chief Judicial Magistrate, Hardoi on 07.06.2007. Before trial court, an application claiming Gaya Lal to be juvenile was filed but same was rejected vide order dated 27.02.2008. Charge was framed on 01.03.2008 under Sections 364, 302, 201, 377 read with Section 511 IPC.

Prosecution examined eight witnesses, namely, P.W.-1 Fauji, aged about 9/10 years, P.W.-2 Vishwanath, P.W.-3 Awadhesh Kumar, P.W.-4 Constable Arvind Kumar, P.W.-5 Janmajay Sachan, P.W.-6 Dr Shamim Ahmad, P.W.-7 Dr. Anil Kumar Srivastava, P.W.-8 Shrimati.

P.W.- 1 and P.W.-2 are witnesses of the fact while P.W.-3 is scribe of the FIR. P.W.-4, Constable Arvind Kumar proved the G.D. Entry and Chick Report. P.W.-6 Doctor Shamim Ahmad proved the post-mortem report (Ext. Ka-4), P.W.-5, Janmajay Sachan, Station House Officer, proved the investigation. P.W.-7, Anil Kumar Srivastava proved the injuries of accused Gaya Lal. P.W.-8, Shrimati wife of Gaya Charan is the mother of the deceased who identified the clothes of the deceased.

In the statement recorded under Section 313 Cr.P.C., accused stated that Vishwanath had given false evidence on account of enmity. Accused said he was innocent and police forced him to ejaculate the semen and they placed it on his underwear. Since P.W.-8, mother of the deceased, was examined subsequent to the examination of accused under Section 313 Cr.P.C. on 01.12.2008 this additional evidence was also explained under Section 313 Cr.P.C. to which accused said that evidence is false. No evidence was led in defence. Trial court after considering the evidence convicted him under Sections 367, 302, 201, 377 read with Section 511 and sentenced as above.

Sri Amit Choudhary, learned counsel for the appellant submitted that medical evidence does not support the case of sodomy or the case of unnatural intercourse. It is highly improbable that for 48 hrs. accused had not taken bath and presence of semen on the underwear after 48 hours is also not believable. Learned counsel submitted that it is a case of circumstantial evidence and it cannot be said that the chain of circumstances is complete leading to only one irresistible inference that accused alone had committed a murder and none else. Learned counsel also submitted that in the FIR, Vishwanath is said to have seen the appellant in the company of the deceased but in the statement given before the lower court different stand was taken. P.W.-1, Fauzi was a child and was not mature enough to have deposed and his evidence was not trustworthy.

Sri Rishad Murtza, learned Government Advocate placed the evidence and submitted that chain of the circumstances was complete and the accused-applicant also tried to anal intercourse with the child thereafter he murdered him, as such, no interference is warranted in this Court and reference be accepted.

For appreciating above contentions scrutiny of evidence is necessary.

Trial court has concluded that P.W.-1, Fauzi was a competent witness after testing him. He stated that on 07.03.2007 at about 5 p.m., he along with Sidh Pal had gone towards Tilla (earthen dune), near the pond for collecting plums where Gaya Lal Pasi had also gone to answer his natural call. When they reached near the pond, Gaya Lal caught hold of both the children and tried to take them with him but somehow P.W.-1 succeeded to flee from the clutches of Gaya Lal but the accused took away Sidh Pal. In cross-examination, he denied the suggestion that he had gone alone to collect plums. He had also given the location of the tree. He further stated that when he ran away from the clutches of Gaya Lal, he continued to hold Sidh Pal and this he recounted to the mother of Sidh Pal. He denied that he had told the Investigating Officer that he had bitten the hand of Gaya Lal. He also denied suggestion that he was deposing because he was cousin of Sidh Pal or that Gaya Lal had not caught him and Sidh Pal or had not taken away Sidh Pal. This witness is a child witness and has deposed all those facts which he himself saw. Nothing has come in the cross-examination which may lead court to disbelieve this natural witness. Relationship with Sidh Pal could not be established by the defence. No enmity with this boy has even been suggested in the cross-examination. He is an independent natural witness and has to be believed.

On the other hand cross-examination of the witness establishes his presence on the spot which will be manifest from the following statements;

i.यह कहना गलत है की मै बेर खाने घर से अकेला ही गया था..........

ii.मै बेरी पर बेर तोड़ने चड़ा था I  बाद मै जब मुलजिम ने बेर तोड़ने के लिए पत्थर फेंके तो मै उतर गया................

iii.ये कहना गलत है की मेरे बेरी पर से उतरने के पहले ही गया लाल भाग गया था.......

iv.ये कहना गलत है की मै बेर तोड़ने सिद्ध पाल के साध न गया हूँ..........

From the above statements in cross-examination, it is apparent that defence does not challenge the presence of witness on the spot near the pond. Defence also does not challenge that witness had gone there to pluck the plums. Suggestion is to the effect that he was not accompanied by Sidh Pal. Once the presence of witness on the spot is not challenged in the absence of any cogent and plausible reason to depose falsely, testimony of this witness has rightly been believed by the trial court. Witness does not state anything except what he seems to have actually witnessed. This makes his testimony more trustworthy

Vishwanath, P.W.-2 stated that he was coming around 6 p.m. after answering the natural call, he saw the accused near the pond in a scared condition. when asked as to why he looked so disturbed and scared, he did not reply and ran away. Green colour was visible in his hands and knees, mud was also present on the knees. When he came to know that Sidh Pal has not come back, thorough search was made. Then dead body of the deceased was found next morning in the wheat field of one Chokhey Pasi in the semi-naked condition. Gaya Lal was seen coming from that very place. He believed that Gaya Lal committed unnatural offence and killed him. In the cross-examination it was stated that he had gone to the pond for answering natural call and while returning he saw Gaya Lal. He inquired the well being of Gaya Lal whereupon Gaya Lal went towards village. In reply to suggestion it is stated that he does not belong to the party of Gaya Charan and there was no enmity between him and father of Gaya Lal. Nothing has been placed on record to show that Vishwanath is related to Gaya Charan, father of the deceased. In the cross-examination, witness has remained intact and has not said anything which may make his testimony doubtful or incredible. He has given the location of place, where he encountered, Gaya Lal in detail. He also does not say any thing additional which he did not claim to see. Presence of green colour in hands and presence of earth on knee of Gaya Lal have not been challenged. He is independent witness.

Site plan shows the dune (tila), plum tree near pond. Distance between field of Chokhe Pasi from pond in approximately 800 metres. Site plan is in conformity & corroborates the ocular account.

P.W.-3 is the brother of the deceased and scribe of the FIR. P.W.-4 is the formal witness who proved the chick-report and G.D. Entry. Dr. Shamim Ahmad, P.W.5 conducted post-mortem. He stated that deceased might have taken meals 3 to 4 hours ago. Since wheat slalk was present on the neck, he has mentioned same in his report. Trial court has rightly pointed out the omission in the post-mortem report.

P.W.-6, Janmajay Sachan is I.O. who proved the investigation, collected clothes, blood-stained earth and also proved various documents prepared by him (Ext. Ka-5 to Ka-11). On the same day, he took the statement of Fauji, Vishwanath and prepared the spot map. On 09.03.2007, he arrested the accused and collected his underwear and sent the same to Forensic Laboratory. Investigating Officer stated that Fauzi had told him about climbing the tree for plucking the plums and Gaya Lal had bitten in his hand. He was recalled by the D.G.C and he proved the bloodstained underwear of victim which contained the blood as well as semen apart from stool.

P.W.-7, Dr Anil Kumar Srivastava stated that he examined Gaya Lal on 09.03.2007 at 9:50 p.m. His trousers did not contain any sign of semen, stool or blood. Front side of penis had a contusion (1 cm X 0.5 cm). Base of Index figure of the right hand also had one abrasion (1 cm X 0.5 cm.). In the opinion of doctor, there is possibility of accused having committed anal intercourse two days ago. He proved Ext. Ka-15, the medical report. Relevant extract of P.W.-7 is reproduced below:

लम्बाई 148 c.m. और वजन 45 kg. उसकी पैंट पर कोई वीर्य का चिन्ह नहीं था और न ही टट्टी व खून पाया गया था I लिंग के अग्र भाग की त्वचा  पर एक नीलगू निशान आकर 1 cm X 0.7 cm  तथा पेशाब के रास्ते से कोई स्त्राव नहीं था I  दाहिनी हाँथ की index finger की base पर एक रगड़ का निशान लाल रंग का था उसका आकर 1 cm X 0.5 cm था I

मेरी राय में आहात ने लगभग दो दिन पूर्व गुदा मैथुन किये जाने की संभावना है I  इस दृष्टि से उसके अन्तः वस्त्रो की वैज्ञानिक परिक्षण हेतु सलाह देता हूँ I  उसके अन्तः वस्त्र पुलिस की सुपुर्दगी में दिए गए I

In the cross-examination doctor agreed that such injury on the penis could be caused by fall on some hard thing but there is strong possibility of said injury having been received from anal intercourse and duration could be 48 hours.

P.W.-8, wife of Gaya Charan is the mother of the deceased who identified the clothes, one pair slippers, one waist band. These clothes were found at the time of recovery of dead body and underwear was on the knees while trouser was lying beside the body. No cross-examination has been done on the statement. Relevant part of the statement of P.W.-8 is quoted below:

जिस समय मेरे लड़के की लाश मिली थी उस समय भी यह कपडे उसके शरीर पर थे लेकिन पैंट लाश के पास मे पड़ी हुई थी चड्डी उसके घुटनों मै थी.....

Report of Forensic Laboratory is Annexure Ka-16, according to which shirt, underwear of deceased and underwear of accused contained mud and blood. Underwear of deceased as well as accused contained human semen and sperms. Traces of stool were not found.

Thus evidence has come to the effect that the accused had taken deceased from near the pond where he had gone to answer natural call, accused was seen returning from near the place of occurrence soon thereafter at 6 pm. Both these witnesses Fauji and Vishwanath are independent witnesses, defence has not been able to show any enmity with these witnesses, one of them was child witness whose evidence is quite natural and trustworthy. In the next morning, dead body of the deceased is found in semi-nude condition and underwear was on the knees. Report of the Forensic Laboratory finds semen on the underwear of the deceased as well as accused. In the inquest report, opinion indicates the commission of unnatural intercourse. Injury on penis of accused was put to accused under Section 313 Cr.P.C. but he did not give any explanation, even if argument of learned counsel that police forcibly collected semen is accepted, this injury remains unexplained.

Thus, it is evident that chain of the circumstances is complete i.e. deceased was seen with the accused thereafter deceased was never seen, accused was seen coming from the place of occurrence. The injury report as well as report of Forensic Laboratory, confirms the participation of Gaya Lal in the crime. Neither in the statement under Section 313 Cr.P.C. or otherwise, defence could suggest any motive or reason for false implication. In view of what has been stated above, we find no error in the view taken by trial Court convicting the appellant. Trial court's judgment is well reasoned.

Dr. Anil Choudhary cited the decision of Apex Court reported in (2007) 13 SCC 755; State Of Goa Vs. Sanjay Thakran and Another. Following points were laid down for conviction on the basis of circumstantial evidence (Para-13):-

The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the 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 a definite tendency unerringly pointing towards guilt of the accused;

iii.the circumstances, taken cumulatively, should from 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 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.

We have found that evidence of Fauji and Vishwanath, report of Forensic Laboratory confirms presence of sperms on the underwear of accused as well as deceased, unexplained injury on private part of accused complete the chain of circumstances leading to irresistible conclusion that accused/appellant alone committed crime and none else.

In the above case time gap between last seen and detection of body was found significant for upholding benefit of doubt in appeal against acquittal because of the absence of any other corroborative piece of evidence (para -39). Appellant does not get any benefit for above decision.

Sri Amit Chaudhary lastly contended that it is a case of circumstantial evidence, therefore, death sentence may not been confirmed.

Sri Rishad Murtza, on the other hand cited the Supreme Court decision (Rajendra Pralhadrao Wasnik Vs. State of Maharashtra reported in (2012) 2 SCC (Cri); page 30. In this case, Apex Court dealt with the matter of rape and murder of 3 year minor girl, this case is also of circumstantial evidence. Following principles have been laid down by the Apex Court in the case of Ramnaresh Vs. State of Chhattisgarh:

1.The court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence.

2.In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice

3.Life imprisonment is the rule and death sentence is an exception.

4.The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances.

5.The method (planned or otherwise) and the manner (extent of brutality and inhumanity etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.

In Rajendra Pralhadrao Wasnik's (supra) case, while confirming death penalty following aggravating factors were found by the Apex Court:

(a)In fact, it is no heinous simpliciter, but is a brutal and inhuman crime where a married person, aged 31 years, chooses to lure a three-year-old minor girl child on the pretext of buying her biscuits and then commits rape on her.

(b)It can hardly be even imagined that what torture and brutality the minor child must have faced during the course of commission of this crime. All her private parts were swollen and bleeding. She was bleeding through her nose and mouth. The injuries, as described in Ext. P-17 ( the post-mortem report) shows the extent of brutal sexual urge of the accused, which targeted a minor child, who still had to see the world. He went to the extent of giving bites on her chest. The pain and agony that he must have caused to the deceased minor girl is beyond imagination and is the limit of viciousness.

(c)This Court has to examine the conduct of the accused prior to, at the time as well as after the commission of the crime. He committed the crime in the most brutal manner and thereafter, he opted not to explain any circumstances and just took up the plea of false implication, which is unbelievable and unsustainable.

(d)Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of "trust- belief" and "confidence", in which capacity he took the child from the house of P.W.-2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self.

In the case at hand, we do not find some of the factors narrated by the Apex Court in Rajendra Pralhadrao Wasnik's case. Appellant's age was 20 years (his plea of juvenility having been turned down by the trial court) apparently no injuries was found on the body of deceased, presence of the deceased on the spot was a chance and therefore the offence cannot be said to have been committed in a preordained manner. Appellant is in jail since 09.03.2007. Reference is pending since 2008 and thus appellant is undergoing the agony of impending death sentence. On the other hand, aggravating circumstances are that a child of 6 years was done to death after abortive attempt of sodomy and body was left in the field after strangulating with the help of wheat stalk. If balance-sheet of mitigating and aggravating circumstances is prepared, same militates against the imposition of death penalty. Moreover, it continues to be a case of circumstantial evidence, for this very reason we find it difficult to agree with the submission of Sri Rishad Murtza. It does not appears to be a 'rarest of rare case' where exceptional sentence of death be awarded.

Consequently, Reference is not confirmed and appeal is liable to be allowed in part.

In view of above, this appeal is partly allowed. Conviction of appellant under Sections 367, 302, 201, 377 read with Section 511 IPC is upheld. Sentence of death penalty awarded under Section 302 IPC is set aside instead we convert the death sentence into life imprisonment under Section 302 IPC. Rest of the sentences are confirmed. All the sentences would run concurrently.

Order Date :- 28/05/2012

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