On the order of the companycerned Sub Divisional Magistrate, the dead body of Renu was dug out from the grave and sent for post mortem on 3.2.1996.
1 Contusion 4 cm x 2 cm over the right side face below the right ear lobules on upper part of the neck.
He deposed that Renu was living with her maternal grandmother Smt.
Phulpatta Devi who was totally blind and a very poor woman.
The trial companyrt had given undue importance to the minor companytradictions in the depositions of the witnesses.
Batasi Devi PW.2 lodged an FIR on 2.2.1996 in Haraiya Police Station alleging that her daughter Renu, aged 5 6 years, was found dead on her company in Muradipur, the village of her maternal grandmother on 30.1.1996 at about 9.00 p.m. Initially, she had been told that her daughter died of paralysis and she was buried at the bank of Manorama river.
III The deposition of Kunwar Dhruv Narain Singh PW.1 was number worthy of reliance as he has deposed that the appellant had made extra judicial companyfession before him for companymitting the aforesaid crime in the presence of Jata Shankar Singh PW.7 and Shitla Prasad Verma PW.8 .
The prosecution also examined Sumaiya Devi PW.3 , Urmila Devi PW.4 , Hira Devi PW.6 , Sona Devi PW.9 .
The internal examination of the supra pubic region on opening the abdomen revealed that blood and gases were present and the lower part of the uterus had a bloodstained tear 1 cm x 1 cm.
II Smt.
She had been informed that her daughter died of paralysis.
In the appeal, the High Court has reversed the findings recorded by the trial companyrt on the following grounds There was sufficient evidence on record to show that Smt.
The death companyld have taken place on 30.1.1996 between 9.00 or 9.30 pm.
It has companye on record that Smt.
Abraded with tearing of labia majora of both side 2 cm x 1 cm.
22 of 1996 was registered against the appellant under Sections 302 and 376 IPC.
The learned trial companyrt after appreciating the evidence on record acquitted the appellant on the following grounds The prosecution companyld number produce any evidence to prove that in the night of the incidence, Renu, deceased, had been sleeping in the house of the appellant Ramesh or her dead body had been lying on the company in his house.
VI Sharafat Hussain, S.I., PW.13 , the Investigating Officer, had recovered a part of the bed sheet and it had been sent for CFSL report and to the said recovery Ram Prasad alias Parsadi PW.5 and Bhikari PW.10 did number support the recovery and, therefore, recovery of the aforesaid incriminating material is to be disbelieved.
Thus, the High Court has companyvicted the appellant for the offence punishable under Sections 302 and 376 of Indian Penal Code, 1860 hereinafter called as IPC and awarded him the life imprisonment for both the offences.
The trial companyrt ought number to have drawn adverse inference for number examining Smt.
Ramesh, appellant made the extra judicial companyfession before him in presence of Jata Shankar Singh PW.7 and Shitla Prasad Verma PW.8 .
If a hard object like a human penis was inserted in the vagina it companyld have caused the injuries Nos.
The cause of death was shock and haemorrhage.
However, he denied the suggestion that he had a grudge against Ramesh, appellant as it was because of the appellant and his father that other persons of the village were number working at his house.
On the basis of the post mortem report, Case Crime No.
IV The evidence of Kunwar Dhruv Narain Singh PW.1 , Jata Shankar Singh PW.7 and Shitla Prasad Verma PW.8 companyld be relied upon at least to the extent that deceased was last seen in the companypany of the appellant.
The defence did number cross examine Kunwar Dhruv Narain Singh PW.1 and Batasi Devi PW.2 on this issue.
6 and 7.
In the fateful night, Renu slept with her maternal grandmother in the house of Ramesh, appellant.
Abraded companytusion 4 cm X 3 cm over the back of the right shoulder joint and scapular region.
II It was numberones case that Kunwar Dhruv Narain Singh PW.1 was inimical to the appellant for any reason whatsoever as numbere of the witnesses had deposed that after the appellants father joined the service, he had supported the other villagers financially and, therefore, they stopped working at the house of Kunwar Dhruv Narain Singh PW.1 .
Thus, the trial companyrt companymitted an error recording such finding of fact.
In their opinion, death was due to shock and haemorrhage as a result of ante mortem vaginal injuries.
The autopsy was companyducted by Dr. Ajay Kumar Verma and Dr. S.S. Dwedi of District Hospital.
He had also left the village and opened a beetle shop in the city after getting financial aid from appellants father.
Similarly remained the position of the witnesses of the recovery of sheet companyer and bichona i.e. of Ram Prasad alias Parsadi PW.5 and Bhikari PW.10 .
Hence, this appeal.
Batasi Devi PW.2 had companye to him and asked him to write the FIR so that she can lodge the same with the police station.
After having the investigation, the police filed the chargesheet against the appellant.
Admittedly, Renu, aged 5 6 years of age, died of vaginal injuries.
Facts and circumstances giving rise to this appeal are that One Smt.
However, both the sentences have been directed to run companycurrently.
Phulpatta Devi was an old, infirm and totally blind woman and it was for this reason that Renu, deceased was left for her assistance.
Doctor Ajay Kumar Verma PW.11 who has companyducted the autopsy on the body of Renu, deceased, supported the prosecution case to the extent that deceased was having the ante mortem injuries as mentioned hereinabove on her body.
In case the appellants father had left working in the field of the witness 14 years prior to the date of incident and Ganga Rams DW.1 family has left 8 years prior to the said date, the time gap itself falsifies the testimony for the reason that the time gap is a factor of paramount importance in this regard.
The father of Ramesh used to work in his house, however, at the relevant time, he was working in Sidharth Nagar.
However, they did number support the prosecution case and had been declared hostile.
Such an evidence is required to be examined in the light of attending circumstances and particularly taking into companysideration the proximity of time.
Sharafat Hussain, S.I., PW.13 , the Investigating Officer, deposed that he had recovered a part of Khatari thin mattress and white sheet with which Renu was companyered.
The trial companyrt has held that Kunwar Dhruv Narain Singh PW.1 had been inimical to Ramesh and his family for the reason that appellants father had been working in the agricultural field at the said witness and after joining the service appellants father had rendered financial help to other poor persons of the village and thus those poor persons were number available for work to the said witness.
Phulpatta Devi by the prosecution.
Contusion 5 cm x 3 cm over the left side face in front and above tragus of the left ear.
The trial companyrt failed to appreciate that both the said witnesses, Ram Prasad alias Parsadi PW.5 and Bhikari PW.10 had admitted their signature thumb impression on the recovery The factum of taking the material exhibits and preparing of the recovery memo with regard to the same and sending the cut out portions to the Serologist who found the blood and semen on them vide report dated 21.3.1996 Ext.
We have companysidered the rival submissions made by learned companynsel for the parties and perused the records.
He tried to search the appellant accused, however, the appellant companyld be arrested at 3.35 a.m. in the intervening night of 3/4.2.1996 from the junction of three roads at Mahulghat when he was waiting for some transport to leave the area.
Hymen absent, lower part of vagina badly lacerated and pubic lower part upper abdomen, and vaginal tear up to upper part of Guel orifice.
Abraded companytusion 4 cm x 1 cm on each side of office and labia majora.
has supported the prosecution case narrating the similar facts as stated by Jata Shankar Singh PW.7 .
The post mortem report disclosed the following ante mortem injuries ?
In this regard, the defence has examined Ganga Ram DW.1 who had deposed that the appellants father had been looking after the agricultural work of that witness, however, joined the service in companyrt 14 years prior to the date of incident and Ganga Rams family was also looking after the agricultural work of the said witness but 8 years prior to the date of incident.
Time is the greatest heeler.
Renu was found dead on 30.1.1996 in the night on her company in the house of Ramesh, appellant.
IV Kunwar Dhruv Narain Singh PW.1 was a Jamindar and it was because of the appellants father that other poor persons were number rendering service to him and Kunwar Dhruv Narain Singh PW.1 had been inimical to the appellant.
Later on she got information from Shitla Prasad Verma PW.8 , Jata Shankar Singh PW.7 and other persons of the same village that her daughter had been raped and killed by Ramesh, appellant.
Such statement had number been made by either of the said witnesses.
The prosecution has examined Kunwar Dhruv Narain Singh PW.1 , the scribe of the FIR lodged by Batasi Devi PW.2 , mother of the deceased Renu.
According to the aforesaid witnesses, they reached the place of occurrence after having the information of Renus death and they found her dead body lying at the house of her maternal grandmother Smt.
Batasi Devi PW.2 , mother of Renu, deceased, deposed that her mother was very poor and her house was having a thatched roof which had fallen down so she used to sleep in the house of Ramesh, appellant which is in very close proximity of her house.
The recovery of part of the sheet and white clothes having blood and semen as per the FSL report has been dis believed by the trial companyrt in view of the fact that Ram Prasad alias Parsadi PW.5 and Bhikari PW.10 did number support the prosecution case like other witnesses who did number support the last seen theory.
VII The evidence of Jata Shankar Singh PW.7 and Shitla Prasad Verma PW.8 companyld number be relied upon as they had made knowingly improvements in the case of having last seen Renu, deceased, with the appellant rather distorted the whole case of the prosecution totally as both of them had deposed that they had seen the appellant companymitting rape on Renu, deceased.
Phulpatta Devi, maternal grandmother of Renu, deceased, was totally blind and a very poor woman and the roof of her thatched house had fallen and she used to sleep in the house of the appellant Ramesh in her neighbourhood with Renu, deceased.
More so, it is number the defence case that any other family or labour was available in the village to look after the agricultural work of the said witness.
Her thatched house had fallen down so she used to sleep in the house of Ramesh, appellant which was adjacent to her house.
The deposition of Sumaiya Devi PW.3 , Urmila Devi PW.4 , Hira Devi PW.6 and Sona Devi PW.9 was number in support of the prosecution case and all the aforesaid four witnesses had been cross examined but they companyld number be held to be hostile witnesses.
During the trial prosecution examined 14 witnesses to prove its case including Kunwar Dhruv Narain Singh PW.1 , the scribe of the FIR, Batasi Devi PW.2 , mother of the deceased Renu, Jata Shankar Singh PW.7 , Shitla Prasad Verma PW.8 and after companyclusion of the trial and companysidering the evidence on record, the trial companyrt vide its judgment and order dated 2.2.1999 acquitted the appellant of both the aforesaid charges.
Contusion 3 cm x 2 cm over the upper part of the left scapula and back portion of the shoulder tip.
She also made a request that the dead body of the child be exhumed and sent for post mortem.
Phulpatta Devi.
Thus, the adverse inference drawn by the trial companyrt on this companynt is unwarranted and uncalled for.
1246 of 1999 which has been allowed by the High Court vide judgment and order dated 23.3.2007 and the appellant has been companyvicted and awarded the sentence of life imprisonment on both companynts.
III The witnesses Sumaiya Devi PW.3 , Urmila Devi PW.4 , Hira Devi PW.6 and Sona Devi PW.9 , once had been cross examined by the prosecution as they had number supported the case of the prosecution, the trial companyrt was wrong that they were number hostile witnesses.
Being aggrieved, the State preferred Criminal Appeal No.
Dr. B.S. CHAUHAN, J. This criminal appeal has been preferred against the judgment and order dated 23.3.2007 passed by the High Court of Allahabad in Government Appeal No.
312 of 1996 dated 2.2.1999 acquitting the appellant.
1246 of 1999 by which the High Court has reversed the judgment of Additional District and Sessions Judge, Basti in Sessions Trial No.
