Nirmal Yadav, J.
1. This appeal has been preferred by Risak alias Munna through jail challenging the order-dated 17.11.2003 by which the appellant Risak @ Munna (hereinafter to be referred as Munna) and accused Anwar have been convicted in Sessions Trial No. 20 of 2001, under Sections 376(g) and 302 read with Section 34 of the I.P.C. and have been sentenced to undergo life imprisonment for each of the offences punishable under Sections 376(g) and 302 read with Section 34 IPC. Both the sentences have been ordered to run concurrently.
2. Brief facts of case as per the prosecution, are that Rakesh Kumar, father of five years old girl Rakhi, submitted an application (Ext. Ka-4) before the Chowki In-charge, Police Station Kotwali, Dehradun stating that on 26.09.2000 at about 8:00 p.m. accused Munna and Anwar had taken away his daughter Rakhi from his house on the pretext that they will get her some snacks (Namkeen) from the shop. Accused Anwar was living in front of the house of Rakesh while Munna had been visiting the house of the complainant as well as Anwar. At that time Ashok and Om Prakash PWs, brothers of complainant were also present. When Rakhi did not return till late in the night, Rakesh and his brothers searched for her. However, on 27th September 2000 at about 7:00 a.m. the dead body of Rakhi was found in a vacant plot near Madarsa of Mazra Mohalla Mosque. He also reported that Anwar and Munna had murdered Rakhi after committing rape upon her.
3. The investigation was taken up by Sub Inspector Sandeep Negi, who reached at the spot and got the place of occurrence photographed and prepared the Panchnama. The dead body was sent through constables Mukesh Kumar and Satya Veer Singh for conducting postmortem on the same day. The Investigating Officer recovered one Relaxo footwear (Chappal) of left foot (Ex. Ka-6) and one pair of sandal (Ex. Ka-2) of the deceased from the place of occurrence, which were sealed in the presence of Suresh Kumar (PW-6) and Punna Ram (PW-2). He also took into possession blood stain earth and simple earth from the place of occurrence in the presence of abovementioned witnesses and sealed them into parcel in separate boxes vide memo Ex. Ka-3. The Investigating Officer also prepared the report, copy of G.D. and site plan vide memos No. Ex. 17 to 19. Accused Anwar was arrested in the presence of Om Prakash (PW-3) and Prem Narayan and accused Anwar in the presence of the witnesses confessed his involvement in the alleged crime and also got recovered one Rexalo footwear (Chappal) of his right foot, which were taken into possession vide memo Ex. Ka-6. An underwear, of accused Anwar which was having blood stains, was also taken into possession in the presence of Om Prakash and Prem Narayan vide memo Ex. Ka-5 and a site plan of the place of occurrence was prepared as Ex. Ka-13.
4. During the course of investigation accused Munna was also arrested. On the completion of the entire investigation the challan was presented and the accused were charge sheeted under Sections 376(g) and 302 read with Section 34 of IPC, to which they pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case produced as many as 13 witnesses, PW-1 Ashok Kumar and PW-3 Om Prakash are the brothers of Rakesh Kumar (PW-5) the father of deceased Rakhi. All the three witnesses had last seen the accused taking away Rakhi from the house of Ashok Kumar. Punna Ram (PW-2) and Suresh Kumar (PW-6) are the witnesses of recovery of the articles from the accused persons and from the place of occurrence. Jamshed Ali (PW-7) a grocery shopkeeper, had seen accused Anwar and Munna alongwith Rakhi at about 8:30 p.m. in front of his shop. Khem Chand (PW-8) a rickshaw puller had seen accused Anwar and Munna emerging out of gate of Madarsa at 9:30 p.m. Madan Pal Singh (PW-10) was posted as A.S.I. in Police Station Patel Nagar and had accompanied PW-11 Sandeep Negi, who was the Investigating Officer, to the place of occurrence during the course of investigation. He is signatory to the Panchayatnama and was also present at the time of taking into possession the articles from the place of occurrence. Murari Lal, Head Constable (PW-12) had recorded the chick F.I.R. at about 7:30 a.m. on 27th September 2000. Parikshit Kumar (PW-13) Inspector, C.B.C.I.D. was posted as S.H.O., Police Station Kotwali. The investigation was handed over to him on 13th October 2000 from S.I. Sandeep Negi. He arrested accused Munna on 19th October 2000 and recorded his statement. On 22nd November 2000 he recorded the statement of S.I. Sandeep Negi and A.S.I. Madan Pal Singh and prepared the site plan of recovery of footwear (Chappal), which was got recovered by accused Anwar and also recorded the statement of other witnesses.
6. The postmortem was conducted by Dr. K.P. Joshi (PW-9) who found the following injuries on the person of the deceased:
(i) Multiple abrasions 7 x 3 c.m. area on right side neck with subcutaneous bruising present. 1 1/2 c.m. above from right clavicle clotted blood was found.
(ii) Abrasion 6 x 4 c.m. on left side at the area of mandibular border and infra-temporal region with clotted blood.
(iii) Abraded contusion of 8 x 8 on the left side whole neck clotted blood was found.
(iv) Abrasion of 6 x 4 c.m. on the back side of the neck just below the hair line clotted blood was found.
(v) Several abrasions on the back side going towards the thigh including the buttocks clotted blood was found.
7. Besides the above injuries the orifice of the vagina was found open. Hymen was torn. The clotted blood was found on the side of the vagina and both labia majora were found swollen. Mouth was closed. Stiffness was found on both the hands and legs. On internal examination all tissues under the neck was found congested, which were underneath injury No. 1 and 3. Hyde bone was found to be broken, which was on account of injury No. 1 and 3. As per the opinion of the doctor the cause of death was on account of strangulation. Injuries found on the vagina could be the result of rape. The death might have been caused between 8:00 p.m. of 26th September 2000 and 6:00 a.m. of 27th September 2000. The two slide of vaginal smear were taken and sent to the pathologist.
8. When examined under Section 313 Cr.P.C., the accused pleaded innocence and false implication.
9. As per the report of Forensic Science, Agra underwear recovered from accused Anwar was found to be contain human blood and semen.
10. We have heard Mr. Abdul Wahid, learned amicus curiae for the appellant, Mr. S.S. Adhikari, learned A.G.A. for the State and carefully gone through the documents and evidence available on record.
11. Learned Counsel for the appellant argued that it is a case of circumstantial evidence and the prosecution has miserably failed to prove the complete chain of circumstances. He pointed out that Ashok Kumar (PW-1) and Om Prakash (PW-3) are the real brothers of Rakesh Kumar (PW-5) and all the three witnesses are highly interested witnesses. It is argued that Ashok Kumar (PW-1) stated that when accused Munna and Anwar had come to the house of his brother Rakesh Kumar, his brother Om Prakash, their mother, Rakhi as well as her sister Kajal were present. The accused wanted to place some articles at their house but his brother did not allow him to keep any article there. He pointed out that in such circumstances they would have never allowed Rakhi to accompany the accused persons. He further argued that there is discrepancy with regard to time of visit of the accused in the statement of Om Prakash (PW-3). According to him both the accused had come to the house of Rakesh at 6-7 p.m. while Ashok Kumar stated that they had come at about 8:00 p.m. He further pointed out another lacuna in the prosecution that is Om Prakash (PW) stated that there were ten houses between his house and the Madarasa but no one from those ten houses had been produced as witness. It was pointed out that Om Prakash has avoided to disclose the time of the last 'Namaz' in the Mosque and as per the statement of Khem Chand (PW-8), he had seen both the accused Munna and Anwar coming out of Madarasa at 9:30 p.m. He submitted that the 'Namaz' is normally addressed around that very time. In case the accused persons had come out of Madarasa at about 9:30 p.m. they would have been certainly noticed by the persons who had come to address the 'Namaz' in the mosque. The learned Counsel further argued that Khem Chand (PW-8) is a chance witness as his presence at the place is not corroborated by any independent evidence, therefore, the presence of the accused persons in the Madarasa and their coming out of the gate is not at all proved.
12. Learned Counsel for the appellant further argued that statement of Jamshed Ali (PW-7) cannot be relied as according to him the incident took place on the night of 27th September 2000, and according to him the accused persons were wearing pant, shirt and shoes. However, occurrence took place of 26th September 2000 and a Chappal was allegedly recovered from the place of occurrence. He further pointed out that even the medical evidence does not support the prosecution case and there is no evidence to connect the accused with the alleged occurrence. Whatever the evidence has been produced by the prosecution, it relates to accused Anwar.
13. On careful consideration of the entire evidence, we are unable to accept the arguments raised by learned Counsel for the appellant. There is no dispute that prosecution case rests on the circumstantial evidence. The prosecution has proved the following circumstances:
(i) The last seen evidence of Rakesh Kumar, father of the deceased and his two brothers, namely, Ashok Kumar and Om Prakash at 8:00 p.m.
(ii) Both the accused were seen in the company of Rakhi by Jamshed Ali, a grocery shopkeeper at 8:30 p.m.
(iii) The testimony of Khem Chand, a rickshaw puller, who had seen both the accused coming out from Madarsa at 9:30 p.m.
(iv) The medical evidence supporting the statement of other witnesses so as to complete the chain of evidence to prove the guilt of the accused persons.
14. The last seen evidence consists of Rakesh Kumar (PW-5), father of the deceased, Ashok Kumar (PW-1) and Om Prakash (PW-3), brothers of Rakesh Kumar. All the three witnesses have categorically stated that accused Anwar and Munna had come to the house of Rakesh. Both the accused were known to Rakesh and other two witnesses as they are working in a hotel in front of their shops. All three brothers are living in the close vicinity. Rakesh Kumar is running a teashop and is living behind his shop. Ashok Kumar (PW-1) has categorically stated that both the accused had taken away Rakhi with them on the pretext that they will get her some salty snacks (Namkeen) and thereafter Rakhi did not return. There is nothing on the record to prove that any of the three witnesses i.e. Ashok Kumar (PW-1), Om Prakash (PW-3) and Rakesh Kumar (PW-5) were having any enmity with the accused persons. The mere fact that they had denied accused to keep some articles in their house does not show that there was any ill will or enmity between them. Rather both the accused remained with the PWs for 20-25 minutes before taking away Rakhi with them. Thereafter the accused was seen alongwith Rakhi at about 8:30 p.m. by Jamshed Ali (PW-7) a grocery shopkeeper. Though this witness was strenuously cross examined by the defence counsel but nothing could be elicited to discard his testimony. The only contradiction pointed out in his statement is with regard to the date of occurrence. He stated before the Court that occurrence relates to 27th September 2000. This could be possibly because of the lapse of time. The occurrence took place in the year 2000 and the witness was examined on 9th December 2002 i.e. after a span of more than two years. Even the discrepancy with regard to the footwear is insignificant as the witnesses may not have noticed whether the accused were wearing Chappal or shoes at the relevant time. According to him both the accused persons stood with Rakhi in front of his shop for 2-3 minutes only and thereafter they left.
15. The testimony of the above discussed witnesses find full support from medical evidence. Dr. K.P. Joshi (PW-9) categorically stated that from the postmortem report it is evident that there were several abrasions on the face, neck and the backside of deceased Rakhi. Mouth was closed. The clotted blood was found on all side of the vagina and both labia majora were swollen. Hymen was torn. The orifice of the vagina was found open which could be possible only if the sexual intercourse was committed repeatedly. To our mind this appears to be a very brutal act upon a child of very tender age, who was unable to resist or raise any alarm against the two able bodied persons.
16. The argument of the learned Counsel for the appellant that possibility of occurrence alleged to have taken place in the open plot near Madarsa of the mosque is not probable and does not find favour with us. The place of occurrence is admittedly a secluded and dark place. The occurrence took place at nighttime. The exact time of addressing the Namaz has not come on record, therefore, it may be possible that no one visited the mosque at that time. It is also not possible that the occurrence took place at some other place and the dead body was thrown at the alleged place of recovery. In case the occurrence had taken place at some other place and thereafter the body was thrown at the place of occurrence, then a trail of blood would have been found at that place. Moreover it is apparent from the postmortem that the entire body had become stiff as it was lying in the open during the whole night.
17. The recovery of one Chappal from the place of occurrence and another Chappal from accused Anwar and blood stain underwear, which was found to have contain semen from Anwar also supports the prosecution case.
18. From the entire evidence and material available on record, we are of the opinion that the prosecution has been able to successfully prove the complete chain of evidence to point out finger of guilt towards the accused persons. It has been well proved that, Rakhi a child of five years old was taken away from the house of Rakesh Kumar in his presence as well as in the presence of Om Prakash and Ashok Kumar and thereafter she did not return till her dead body was found on the next morning. Jamshed Ali, a grocery shopkeeper who had no enmity with the accused persons. He is neither interested nor related with the complainant and saw Rakhi in the company of the accused persons. The accused were seen coming out of the gate of Madarasa i.e. near of the place of occurrence around 9:30 p.m. by Khem Chand, a rickshaw puller, who is also an independent witness. He had no axe to grind with the accused. He has categorically stated that he had seen the accused coming out from the gate in a perplexed condition. The testimony of all the abovementioned witnesses further find support from the medical evidence. As per the medical evidence, Rakhi a tender aged girl was subjected to sexual assault in a very brutal manner and then murdered by throttling.
19. Thus, we do not find any merit in the appeal and no ground for interference with the judgment and order passed by the trial court is made out. Accordingly, the jail appeal is dismissed.