JUDGMENT
R.K. Rastogi, J.
1. Both these appeals have been filed against the judgement and order dated 5.10.1998 passed by Sri R.K. Gupta III Addl. District & Sessions Judge, Etawah in ST. No. 26 of 1997, State v. Ramanand and others under Sections 302/34, 307/34, 366 and 376 I.P.C., P.S. Phaphoond then District Etawah at present District Auraiya.
2. Ramanand, appellants No. 1 is common in both the appeals. Pramod alias Guddu who is appellant No 2 in Criminal appeal No. 2249 of 1998 is appellant No. 3 in Criminal Appeal No. 2364 of 1998. Rama Kant is appellant No. 2 in Criminal appeal No. 2364 of 1998. Pramod alias Guddu (Appellant No. 2 in Criminal appeal No. 2249/98 and appellant No. 3 in Criminal appeal No. 2364/98) died during pendency of the appeals. Thus both the appeals stood abated so far as Pramod alias Guudu is concerned. All the three appellants were convicted in the aforesaid sessions trial and sentenced to life imprisonment under Sections 302/34 I.P.C., to ten years R.I. under Section 307/34 I.P.C. and to seven years R.I. Under Section 366 I.P.C. Accused Ramanand and Guddu alias Pramod were also convicted under Section 376 I.P.C. and sentenced to 10 years R.I. After conviction Ramanad and Guddu alias Pramod filed Criminal Appeal No. 2249 of 1998 challenging the above judgement and order and thereafter they also joined Ramakant in filing Criminal Appeal No. 2364 of 1998.
3. Since the learned Counsel through whom the appellants had filed their appeals did not appear to argue these appeals, Sri Harish Chandra Tiwari Advocate was appointed as amicus curiae for Ramanand. It may be mentioned that Ramanand had requested that since he is a poor man an amicus curiae should be provided to him to argue his case. Sri Harish Chandra Tiwari was also appointed as amicus curiae of Ramakant in Criminal Appeal No. 2364 of 1998.
4. The facts relevant for disposal of these appeals are that on 30.8.96 at 3.05 A.M. Rajnish Kumar son of Mulayam Singh Jatav resident of village Dashahra, P.S. Phaphoond District Etawah lodged a F.I.R. with these allegations that Ramanand, Guddu alias Pramod and Ramakant were friends of his brother Bobi and they used to visit his house along with Bobi. Ramanand developed illicit relation with his sister Guddi. When he came to know about this fact, he performed marriage of Guddi, who was aged about 20 years, in the month of May at village Hari Ka Nagla, P.S. Chaubiya. Guddi had come to his house from her in- law’s home one day prior to festival of Rakshabandhan. On 29.8.96 at about 7 P.M. Ramanand was trying to meet Guddi. Rajnish Kumar objected to it, then Ramanand felt aggrieved and at about 8 P.M. the aforesaid three accused persons and one Kallu having country made pistols in their hands reached in front of the door of the house of Rajnish Kumar. Rajnish Kumar and his family members were sitting on a Chabutra below a Neem tree in front of their house. There was light of a lamp. Ramanand exhorted ” Aaj Salon Ko Dekh Lenge Bach Nahin Paoge”. Then all the above named four accused persons fired from their pistols. His father Mulayam Singh received fire arm injuries on his chest and on right hand. Consequently he fell down. Bobi alias Manish received fire arm injury on his chest and he also fell down. Then Rajnish Kumar shouted for help. On hearing the noise and sound of fire, Guddi came out of the house. Then the accused forcibly caught hold of her and abducted her. This incident was witnessed by Rajnish Kumar, his mother Ram Kuman and brother Chhotu. A large number of villagers also reached there and they saw the incident. Mulayam Singh died as a result of fire arm injuries. Thereafter Rajnish Kumar took his injured brother to Achhalda and then he went to the police station Phaphund and lodged the F.I.R. He further stated that since, after the incident, rains had started, so he could not go any where during rains, and when rains stopped, he proceeded towards the police station. On the basis of above report, the police registered Case Crime No. 130/96 under Sections 302, 307,366 I.P.C. against all four the accused persons.
5. The Injuries of Manish Kumar alias Bobi were medically examined on 30.8.96 at 7 A.M. in P.H.C. Bidhuna Etawah. He had a Central gun shot wound size 1.5 cm. x. 0.7 cm. x 0.5 cm. Depth visible Muscle deep on chest 4 cm. medial to the right nipple. The central wound was surrounded by multiple gun shot wounds lying scattered in area 14 cm. x 13 cm on chest, these gun shots were 52 in number size 0.5 cm. in diameter x tissue deep circular and 0.4 cm. in diameter x tissue deep circular in shape.
6. Manish also had one more gun shot wound on anterior aspect of right upper arm 17 cm. below the top of shoulder size 0.4 cm. in diameter x tissue deep, circular in shape. Clotted and dry blood was present on wounds. The pulse was 96 p.m. and B.P. was 110/70 MM. Injuries were kept under observation and referred to District Hospital Etawah for X ray of chest to detect presence of shots and further treatment. The injuries were caused by fire arm in the opinion of the doctor and were about half day old.
7. The post mortem of the dead body of Mulayam Singh was also done on 31.8.96 at 2.30 P.M. The death had taken place about one and half day prior to the time of post mortem. The following ante mortem injuries were found on his person:
1. Multiple gun shot wounds in an area of 6 cm. X 7 cm on both front and back of right forearm in its lower 1/3rd part. Two pellets recovered from this part.
2. Multiple gun shot wounds in an area of 17 cm. X 15 cm. on upper part of front of chest. 12 pellets were recovered from thorax.
In the opinion of the Doctor the cause of death was shock and haemorrhage as a result of ante mortem injuries.
8. One Pramod kumar produced Smt. Aneeta alias Guddi at police station Phaphoond on 5.9.96. Thereafter she was sent for medical examination on 6.9.07 in the Dufferin hospital Etawah. There was no mark of injury on her body or on her private parts and her vagina admitted one finger easily. Her vaginal smear was taken and was sent for pathological examination. Her X ray was also performed for ascertainment of her age. She was found habitual of sexual intercourse. On the basis of X ray her age was assessed to be 19 years. No spermatozoa dead or alive was found in her vaginal smear. Since she was married, the Doctor was of the view that no definite opinion regarding rape could be given. She stated in her statement before the Investigating Officer that the accused had forcibly abducted her and Ramanand and Guddu had forcibly ravished her. On the basis of her statement the charge under Section 376 I.P.C. was also added against the above named two accused persons.
9. The police after completion of investigation submitted charge sheet against the accused Ramanand, Pramod alias Guddu and Rama Kant only under Sections 302/34,307/34,366 and 376 I.P.C. It was stated in the charge sheet that since Kallu was absconding he could not be charge sheeted.
All the accused were charged under Sections 302/34, 307/34 and 366 I.P.C. Ramanand and Pramod alias Guddu were charged under Section 376 I.P.C. also. They pleaded not guilty and claimed to be tried.
The prosecution produced Rajnish Kumar as P.W. 1. He has narrated the entire F.I.R. case on oath and has also proved the F.I.R. Ext ka-1. Dr. Asha Devi was examined as P.W. 2. She had medically examined Smt. Guddi alias Aneeta. She had prepared the medical examination report Ext Ka-2 and the supplementary medical report Ext. ka-3.
10. Smt. Aneeta alias Guddi was examined as P.W. 3. She has stated that her marriage had taken place with Ram Pratap on 29.4.96.Thereafter she came to her parents house one day prior to the festival of Rakshabandhan. On 29.8.96 at about 7 P.M. accused Ramanand was trying to meet her. Her brother Rajnish objected to it then at about 8 P.M. accused Ramanand, Guddu, Ramakant and Kallu came to her house having fire arms in their hands. She was inside the house but on hearing the sound of fires, she came out and saw that her father Mulayam Singh and brother Boby had received fire arm injuries The accused forcibly caught hold of her and abducted her They took her to a Jungle. She could not shout for help because the accused had threatened her that if she shouts, they will fire at her. Both Ramanand and Guddu ravished her. They kept her at some place unknown to her for 3-4 days Thereafter they left her near the house of Pramod of Rajapur and then she narrated the entire incident to him and then Pramod took her to the police station Phaphoond. She further stated that prior to her marriage Ramanand had forcibly ravished her twice in Jungle, but on account of fear and shame she did not tell any thing about this incident to her family members. Boby alias Manish was examined as P.W. 4. He has corroborated the statement of Rajnish Kumar P.W.1.
11. Dr. V.V. Prakash Radiologist, who had performed the X ray of Manish Kumar on 30.8.96, was examined as P.W. 5. He has proved the X ray plate Ext 1 and the X ray report Ext ka 4. He has stated that in the X ray, multiple small rounded radio opaque shadows of metallic density were seen on right side of chest, and one small rounded radio opaque shadow of metallic density was seen on outer side of arm.
Dr. Ravindra Yadav was examined as P.W. 6. He had performed post mortem of the dead body of Mulayam Singh. He has proved the post mortem report as Ext Ka-5.
Dr. Y. Vishwakarma was examined as P.W. 7. He had medically examined the injuries of Manish Kumar alias Boby. He has proved the injury report Ext.Ka-6
Sri Chhote Lal Yadav S.I. was examined as P.W. 8. He had investigated the case. He has proved the inquest report of the dead body of Mulayam Singh Ext. ka 7.He had also taken sample of plain earth and blood stained earth from the place of incident and its memo was prepared as Ext Ka-8. He also recovered an empty cartridge from the place of incident and its memo was prepared as Ext Ka-9. He also prepared memo of recovery and Supurdagi of lantern Ext. ka-10. After completion of investigation he submitted charge sheet against the accused Ramanand, Guddu alias Pramod and Ramakant which is Ext ka-11. He had also prepared site plan of the place of incident which is Ext Ka-12. At the time of preparation of the inquest report, he had also prepared documents for post mortem of the dead body of Mulayam Singh. Those documents are marked as Exts ka-13 to Ext ka-16. The blood stained and plain earth which were recovered from the place of the incident were also identified by him as Exts. 1 and 2.
12. Head Constable Harisharan Saraswat was examined as P.W. 9. He has proved the entries made by Prem Pal Singh constable regarding registration of Chik report on the basis of F.I.R. as Ext. Ka 17 and its entry in the G.D. as Ext. ka 18 and the entry regarding departure of Constable Pramod Kumar for the place of incident Ext.Ka 19 and recovery memo of Aneeta alias Guddi Ext. Ka 20 and its entry in the G.D. Ext. ka 21. He further stated that Smt. Aneeta Devi was given in the Supurdagi of her brother. The Supurdginama is Ext. ka 22.
13. The accused in their statements denied the prosecution allegations and stated that they have been falsely implicated in the case on account of enmity, and the witnesses have falsely deposed against them. They were provided opportunity to produce evidence in defence but no evidence was produced by them.
14. Learned Addl. Sessions Judge after completion of trial of the case, came to the conclusion that the charges under Sections 302/34, 307/34 and 366 I.P.C. were sufficiently proved against all the accused persons, and the charge under Section 376 I.PC. was also proved against Ramanand and Guddu alias Pramod. He accordingly convicted the accused persons and sentenced them as narrated at the beginning of the judgement. Aggrieved with the above conviction order these two appeals have been filed. We have heard Sri Harish Chandra Tiwari Amicus Curiae appearing for the appellants Ramanand and Ramakant, and Sri Suresh Chand Dwivedi, A.G.A. for the State
15. Learned Counsel for the appellants submitted that the prosecution case was not sufficiently proved against the accused appellants and the trial court had erroneously convicted the accused persons. In support of this contention he made following submissions before us:
1. That the F.I.R. is ante timed
2. That there was no motive for commission of the offence of murder.
3. That all the witnesses produced by the prosecution are interested persons being members of one family and no independent witness has been produced.
4. That Smt. Guddi was a consenting party and so no case under Sections 366 and 376 I.P.C. was made out.
5. That there are material contradictions in the prosecution evidence.
6. Thai Guddu was juvenile on the date of the incident and therefore he should have been dealt with in accordance with the provisions of the Juvenile Justice Act, 1986.
We deal with these contentions one by one
16. Taking the last contention first, it is to be seen that the learned Counsel for the appellants submitted that Guddu alias Pramod had described his age as 18 years in his statement recorded under Section 313 Cr.P.C. on 11.9.98. He pointed out that the date of murder of Mulayam Singh is 29.8.96 and so far as the offence of abduction of Smt. Aneeta alias Guddi is concerned, it was also allegedly committed on the above date and she was recovered on 5.9.96. He submitted that in view of this fact that his (Guddu’s) age was 18 years on 11.9.98, his age on the date of incident must have been less than 16 years and as such he was juvenile on that date, and so he should have been dealt with in accordance with the provisions of the Juvenile Justice Act and the learned trial court committed legal error by dealing his case with the other accused persons.
17. In this connection, it is to be seen that Pramod alias Guddu never took this plea before the Magistrate or before the trial court that he was juvenile on the date of incident. Even in the memo of appeal filed before this Court, this plea has not been taken that he was juvenile on the date of the incident and the amicus curiae appearing for the appellants made the above submission on the basis of the age disclosed by him in his statement under Section 313 Cr.P.C. without any proof of his age. Any how the question whether he was juvenile on the date of the incident or not has become immaterial because Pramod alias Guddu has died as per report of the C.J.M. and so the appeal filed by him has abated.
18. Now we take up the remaining points raised by the learned Counsel for the appellants. He has alleged that the F.I.R. of the case is ante timed. It is to be seen that according to the prosecution the incident had taken place on 29.8.96 at 8 P.M. The F.I.R. of the incident was lodged at P.S. Phaphoond on 30.8.96 at 3.05 A.M. The distance of the police station from village Dashahra where the incident had taken place is 13 Kms. This question that the F.I.R. was ante timed was asked by the learned Counsel for the accused to the Head Constable Harisharan Saraswat(P.W.9) but he denied this allegation. Learned Counsel for the accused appellants, however, submitted in the course of arguments that actually the incident of murder of Mulayam Singh, of murderous assault on Boby as well as of abduction of Guddi alias Aneeta was done by some unknown persons in mid night and the real culprits could not be identified, and the present F.I.R. was lodged against them on account of enmity after premeditation and consultations on the next day and it was fictitiously shown to have been lodged at 3.05 P.M. on 30.8.96.
19. It is, however, to be seen that it has come in the statements of the witnesses that there were rains just after the incident and when the rains stopped, the informant Rajnish Kumar went to the police station to lodge the report. The inquest report Ext ka -7 reveals that the proceedings for preparation of inquest had started on 30.8.96 at 6 A.M. and were completed by 9 A.M. The complete description of the case bearing Crime No. 130/96 and full particulars of the offences under Sections 302,307 and 366 I.P.C. have been mentioned at its top and the same description has been given in the letter addressed to the C.M.O. Etawah Ext. ka-14 and in the photo of dead body Ext Ka-13. There is also reference of the F. I.R. In the documents mentioned at the end of the inquest report and a copy of this F.I.R. was sent to the Doctor conducting post mortem of the dead body of Mulayam Singh. All these facts and circumstances go to show that the F.I.R. was actually lodged on 30.8.96 at 3.05 A.M. and there is no force in the allegation of the accused that it is ante timed.
20. It was further submitted by the learned Counsel for the appellants that there was no motive for the accused to commit murder of Mulayam Singh and for making an attempt to commit murder of Boby. It is to be seen that as per prosecution case the accused Ramanand had developed illicit relations with Guddi real sister of the informant and of Boby, and on coming to know about this fact, they performed marriage of Guddi with a person of another village, and Guddi had come to her parents house one day before festival of Rakshabandhan, and Ramanand wanted to meet her, but he was not permitted by the informant and his family members to do so. Then all the accused came to his house having fire arms in their hands and fired at Mulayam Singh and Boby and thereafter they forcibly abducted Guddi. It is thus clear that with a view to take Guddi with them, the accused decided to murder those persons who come in their way. Thus there is no force in the contention of learned Counsel for the appellants that the accused had no motive for committing murder of Mulayam Singh and doing fatal attack upon Boby.
21. It was further submitted by the learned Counsel for the appellants that all the witnesses of fact produced by the prosecution are interested witnesses and members of one family, and that no independent witness has been produced, and so the statements of prosecution witnesses should not be believed. He further pointed out that the informant Rajnish (P.W.1) is son of the deceased Mulayam Singh and brother of Boby (P.W.4) and Guddi (P.W. 3) and no independent witness has been produced by the prosecution. It is, however, to be seen that this incident took place in the night at 8 P.M. and rains had started by that time as stated by Guddi (P.W. 3) and so there is nothing unnatural if no other person could reach the spot to witness the incident. It is also to be seen that the prosecution case can not be thrown away only on the ground that no independent witness has been produced. The law in such cases is that the testimony of interested witnesses is to be assessed with caution. It is to be seen that in the present case Boby P.W. 4 is an injured witness and so his presence on the spot can not be doubted. Smt. Guddi P.W. 3 is a witness who had been forcibly abducted from the spot by the accused. Both these witnesses have deposed against the accused persons and there is no reason to disbelieve their testimony.
22. It was further submitted by the learned Counsel for the accused that Smt. Guddi is major and she was a consenting party and so no offence under Section 366 and 376 I.P.C. is made out. He further pointed out that she was not recovered from possession of any of the accused and no injury was found either on her body or her private parts nor any spermatozoa was found in her vaginal smear and so it is also not proved that sexual intercourse was committed with her and so the case under Sections 366 and 376 I.P.C. is not made out against the accused persons.
23. Learned A.G.A. submitted in reply that Smt. Guddi has stated in her statement as P.W. 3 that she was acquainted with Ramanand because she was friend of her brother Boby and he had forcibly ravished her two times in Jungle before her marriage, and at that time she could not tell about this incident to any one on account of shame and fear. She further stated that on the date of the incident she was inside the house and on hearing sound of fires she came out and at that time the accused forcibly caught hold of her and dragged her with them closing her eyes and putting cloth in her mouth so that she may not shout. She has further stated that the accused Ramanand and Guddu had ravished her in the same night at about 12 O’clock – 1 A.M. and thereafter they kept her with them for several days and both Ramanand and Guddu ravished her three or four times during this period and thereafter they left her at the house of Pramod of Rajapur asking him to confine her in the house. He (A.G.A.) further submitted that Guddi is aged about 20 years and is a married lady and habitual to sexual intercourse and so it is immaterial that no injury was found on her body or on her private parts and there is no reason to disbelieve her statement on the point nor she can be treated to be a consenting party
24. It was further submitted by the learned Counsel for the accused that both Ramanand and Guddu are real brothers and so it appears highly improbable that both of them would commit intercourse with Guddi. It is, however, to be seen that it is not the case of the accused that Ramanand wanted to marry Guddi but he simply wanted to establish illicit relations with her, and the accused had left her at the house of Pramod after enjoying her for a few days. When a girl has been abducted with the purpose of intercourse only there is nothing unnatural if two real brothers establish illicit relations with her.
25. Learned Counsel for the accused appellant referred to some contradictions in the statements of witnesses. He pointed out that P.W. 1 Rajnish has alleged in the F.I.R. that the accused Ramanand had tried to meet Guddi at 7 P.M. on the date of the incident but he has stated in his cross examination that Ramanand had tried to meet her at 7 A.M. and when he prohibited Ramanand from doing so, Ramanand went away and again came after the lapse of one hour and at that time Ramanand had threatened him. He further submitted that when Boby had received fire arm injury in the incident, there was no justification for Rajnish for taking him to Achhalda and thereafter going to Phaphoond without taking Boby with him. Rajnish has explained that he had taken Boby to the Hospital at Achhalda and as no Doctor was available there at that time in the night he left Boby at Achhalda and went to police station Phaphoond to lodge the report. Learned Counsel for the accused appellants further pointed out that Boby (P.W. 4) has stated that Guddi was shouting for help when she was abducted but Guddi (P.W. 3) has stated that she could not shout as she was threatened and cloth was thrust in her mouth, and so the prosecution evidence is unreliable. There is no force in this contention. Smt. Guddi might have first tried to shout for help as stated by Boby (P.W. 4) but then she would have been threatened and cloth might have been thrust in her mouth and so she could not shout as stated by her as P.W. 3. As such thee is no contradiction nor any unnaturality.
26. It was also pointed out that it has been stated in the F.I.R. that the lamp was below the Neem tree but Boby P.W. 4 has stated that it was hanged on the Chhappar. Boby was confronted with this statement and he denied to have given this statement and stated that it has been erroneously written in his statement that the lamp was hanging on Chhappar. It was further pointed out that it has been stated in the F.I.R. that Pramod had developed illicit relations with Anita alias Guddi and so the family of Rajnish was being defamed in the village but Rajnish (P.W.1) has denied this allegation in the witness box. It is, however, to be seen that since marriage of Aneeta had taken place, Rajnish might have decided to conceal above facts in his statement in the interest of good marital relation between Anita and nor husband so that one may not allege that Anita had willingly gone with the accused. The aforesaid discrepancies and contradictions have got no material effect on the merits of the case.
27. The position in this way is that it is sufficiently proved from the statements of Rajnish Kumar P.W. 1 and Boby P.W. 4 that all the accused persons who had fire arms in their hands fired upon Mulayam Singh and Boby resulting into multiple gun shot wounds to Mulayam Singh. One gun shot wound was received by Mulayam Singh in front of his chest and 12 pellets were recovered and second injury was multiple gun shot wounds in an area of 6 cm. X 7 cm. on both front and back of right forearm and two pellets were recovered from this wound and he died as a result of fire arm injuries. Manish had received a central gun shot wound on chest surrounded by multiple forearm wounds which were 52 in number and he had also received one gun shot wound on right upper arm. Thus the medical evidence also corroborates the aforesaid ocular testimony and the trial court has rightly held that the charges under Sections 302/34 and 307/34 are sufficiently proved against the accused persons. Charges under Sections 366 and 376 I.P.C. were also sufficiently proved taking into consideration the testimony of Smt. Aneeta P.W. 4 and as such the trial court committed no legal error by convicting all the accused under Sections 302/34, 307/34 and 366 I.P.C. and Ramanand and Pramod under Section 376 I.P.C. also. Both these appeals in this way have got no force and they are liable to be dismissed.
28. The appeals of Ramanand and Ramakantare hereby dismissed and their conviction under Sections 302/34, 307/34 and 366 I.P.C. and sentence passed against them for these offences by the trial court are maintained. The conviction of Ramanand under Section 376 I.P.C. and the sentence passed against him for this offence by the trial court is also maintained. The appeal of Guddu alias Pramod stands abated due to his death. Sri Harish Chandra Tiwari amicus curiae took much pains in arguing this appeal and he efficiently assisted the court in hearing of the appeal. We hereby order that he shall be paid a sum of Rs. 4000/- as his fee. Let a copy of this judgement be certified to the trial court for information and necessary action.