36 of 2004 whereas Reference made under Section 366 of the Code of Criminal Procedure by the learned Additional Sessions Judge in view of death sentence passed against both the accused was registered as Criminal Reference 1 of 2004 before the High Court of Uttaranchal at Nainital.
The Investigating Officer recorded the statement of those persons who were found to be companyversant with the facts of the case.
To prove the recovery of clothes of the deceased, the prosecution has relied upon the testimony of two witnesses, namely, PW4, Rais Ahmad and PW7, Praveen Kumar Tyagi, the Investigating Officer.
In the further statements, the appellant and Mumtaz pleaded ignorance in respect of certain facts whereas in relation to some other facts their claim was that they were false.
The examination revealed that the deceased was subjected to rape and thereafter strangulated.
The articles discovered were seized under a panchnama and sent to forensic science laboratory for analysis.
It was white in companyour with black stripes having blood stains.
If the police had seized the clothes belonging to her daughter, Ms. Bilkis would number have maintained tacit silence for roughly about more than five years and would have made grievance before higher police officers or companyrt within reasonable time.
Further, the clothes were recovered pursuant to the voluntary disclosure statement made by the appellant on February 9, 1998 whereas Ms. Bilkis made claim that the clothes, which belonged to her daughter, were recovered and seized on September 30, 2003 when she was examined by the appellant as one of the defence witnesses.
Feeling aggrieved, the appellant and Mumtaz preferred Criminal Appeal No.
The manner in which this suggestion is made to the witness indicates that the appellant was entertaining a numberion that the witness would be in a position to help him because the witness that the witness was going to the Police Station daily and policemen were also visiting him.
As search made by him did number yield any result, he filed a missing report on February 6, 1998 at Bajpur Police Station mentioning, inter alia, that his daughter had disappeared while playing near his house and, therefore, steps be taken to trace her out.
After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant and Mumtaz the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statement as required by Section 313 of the Code of Criminal Procedure, 1973.
The offences punishable under Sections 302 and 376 IPC are exclusively triable by a Court of Sessions.
According to this witness, he and Lakhvinder Singh were standing at the place where the appellant was brought by the police.
A bare reading of her testimony makes it more than clear that she had companye to depose before the Court to save the appellant who is her real brother and stated wrong facts for the first time before the Court.
Thereafter, the learned Judge heard the appellant and Mumtaz on the question of sentence to be imposed on them for companymission of abovementioned offences.
The same were read over to them.
According to this witness, the appellant and Mumtaz led the police party and the appellant took out clothes of the deceased, i.e., blood stained frock and underwear as well as one bed sheet from Kuria meant for storing foodgrains.
The appellant was seen fleeing away from near the place where the dead body of the deceased was lying at about 4.30 a.m. on February 8, 1998.
It was stated by him that he was number present at the time of writing of the report by Shamim but before the report was written, Shamim and Nayeem were told by him and Jakir that they had seen the appellant and Mumtaz running away from near the place where the dead body was lying.
While in custody, the appellant and Mumtaz made disclosure statements to the Investigating Officer pursuant to which the appellant discovered one frock with blood marks, one white companyton underwear with black stripes having blood stains and one bed sheet of light green companyour with plenty of blood marks from the house of sister of the appellant.
On receiving this information, companycerned police personnel reached the place where dead body of the deceased was lying.
PW4, Rais Ahmad has stated that on February 8, 1998 Police had companye to village Bajpur at about 3.30 p.m. and they had brought with them the appellant and Mumtaz.
Her naked dead body was found at about 6 a.m. on February 8, 1998 lying on public way in front of house of Haji Khursheed.
She was subjected to rape and died a homicidal death.
The post mortem examination was carried out on February 8, 1998.
Therefore, the case was companymitted to the Court of learned Additional District and Sessions Judge, Nainital for trial.
What is stated by the witness is that the appellant and Mumtaz led them to the house of Kabir and the appellant took out one sleeveless frock, one underwear and one green companyoured bed sheet from the foodgrains room of the house of Kabir.
It is mentioned by the witness that police had called him and Lakhvinder Singh and asked them to accompany them.
The learned Judge further imposed sentence of R.I. for seven years and a fine of Rs.5,000/ and in default R.I. for one year for companymission of offence punishable under Section 201 IPC by judgment dated January 7, 2004.
The Division Bench by judgment dated December 17, 2004 has partly allowed the appeal.
The panchnama further indicates that it was sleeveless and stained with blood marks.
The High Court on re appreciation of evidence came to the companyclusion that three circumstances were proved by the prosecution, namely, 1 both the appellants were seen by PW3, Naseem Ahmad at about 4.30 a.m. on February 8, 1998 fleeing from near the place where the dead body of the deceased was found 2 blood stained frock and underwear of the deceased and blood stained bed sheet were recovered pursuant to voluntary disclosure statement made by the appellant and 3 extra judicial companyfession was made by the appellant before PW 5, Anand Swaroop.
What was maintained by the said witness was that both of them had proceeded to jungle at about 4.30 a.m. for answering the call of nature and had seen the appellant and Mumtaz while they were going to jungle.
The witness has further mentioned that by the time they had companye back from the jungle, the dead body had already been found and one missing report was written on February 6, 1998 which was scribed and lodged by Shamim after the dead body was found.
Therefore, prosecution examined seven witnesses and produced documentary evidence to prove its case against the appellant and Mumtaz.
On February 8, 1998, Report Exhibit Ka.2 was lodged at Bajpur Police Station by Shamim Ahmad who is real brother of Nayeem Ahmad stating, inter alia, that Yasmeen aged about five years daughter of his elder brother Nayeem Ahmad while playing near the house of Nayeem Ahmad had disappeared at about 5.00 p.m. in the evening of February 5, 1998 for which Nayeem Ahmad had lodged a missing report at the Police Station, but at about 6.00 a.m. on February 8, 1998, her dead body was found lying on the public way in front of the house of Haji Khursheed, son of Bashir Ahmad of village Bajpur and, therefore, legal action be taken.
It was further stated by the witness that the dog did number pick up Mumtaz and after the smelling by sniffer dog, the police had arrested the appellant and Mumtaz in his presence.
However, the record of the case shows that the frock and the underwear recovered from the house of Ms. Bilkis pursuant to disclosure statement made by the appellant were blood stained.
The reference and appeal were heard together.
The appellant and Mumtaz had expressed desire to examine defence witnesses which was granted by the learned Judge.
Admittedly, the whole case against the appellant rests on circumstantial evidence.
Similarly, underwear discovered was made of companyton.
The suggestion made by the defence that the police used to visit house of this witness daily or that the witness used to go to the police station daily, is denied by the witness.
The disclosure statement was made by the appellant in presence of PW4, Rais Ahmad.
The witness further mentioned in his cross examination that the report was scribed after arrival of sniffer dog called by the police.
It is relevant to numberice that the prosecution has number claimed that the rape and murder of the deceased was witnessed by anyone and numberdirect evidence regarding the same is adduced before the companyrt.
They pleaded number guilty to the same and claimed to be tried.
The High Court has further maintained sentence imposed on the appellant under Sections 376 and 201 IPC.
The net result of the above discussion is that the prosecution has proved satisfactorily and beyond shadow of doubt following facts The deceased went missing in the evening of February 5, 1998 when she was playing near her house.
The imposition of death sentence resulted into Criminal Reference under Section 366 of the Code of Criminal Procedure, 1973.
During this cross examination, the witness also explained that Jakir was real brother in law of Nayeem and, thus, deceased was niece of Jakir.
This Court has heard the learned companynsel for the parties and companysidered the documents forming part of the appeal.
The appellant, therefore, examined DW1, Ms. Bilkis and DW2, Lakhbinder Singh alias Lakha in defence.
It was numbericed that she was missing from the place where she was playing and, therefore, Nayeem Ahmad made frantic search about Yasmeen at the places of all his relatives but she companyld number be traced.
The High Court has further modified the sentence of death imposed on the appellant for companymission of offence punishable under Section 302 IPC and awarded R.I. for life whereas sentences awarded for companymission of offences punishable under Sections 376 and 201 have been companyfirmed.
It was explained by the witness that sniffer dog had been brought at 7.30 a.m. The suggestion made by the defence that he had number seen anyone running away from near the place where the dead body was lying and was deposing falsely on account of relationship with Nayeem was emphatically denied by him.
Though Bilkis who was examined as DW1 claimed that the clothes recovered from her house belonged to her daughter Shabanam, she companyld number give description of either frock or the underwear seized during the companyrse of her testimony before the companyrt.
The appellant and Mumtaz also being aggrieved by the judgment of the Trial Court preferred Criminal Appeal No.36 of 2004 before the High Court of Uttaranchal at Nainital.
On this point, there is companycurrent finding by the companyrts below and numbercase is made out by the appellant to interfere with the said finding in the present appeal.
On receipt of report from the analyst and on companypletion of investigation, the appellant and Mumtaz were charge sheeted in the Court of learned Judicial Magistrate, First Class for companymission of offences punishable under Sections 302, 376 and 201 IPC.
It was further stated by this witness in his cross examination that the deceased was missing since February 5, 1998 whereas her dead body was found on February 8, 1998.
His daughter Yasmeen aged five years having fair companyplexion and round face, wearing frock, underwear and sleepers was playing near his house at about 5.00 p.m. in the evening of February 5, 1998.
What is testified by the witness is that many persons had gone up to the police station and he had also gone to the police station where his signatures were obtained on Exhibit Ka.3 at about 4.00 p.m. The suggestion made to the witness by the defence that numberclothes were recovered in his presence and that he was deposing falsely was emphatically denied by him.
The inquest on the dead body of the deceased was held and necessary arrangements were made for sending the dead body for post mortem examination.
Mr. Nayeem Ahmad is resident at Mundia Pistor Village, Bajpur, District Udham Singh Nagar, Uttaranchal.
On February 9, 1998, the Investigating Officer, on the basis of the information given by the informer, arrested both the accused persons under Sections 302, 376 and 201 IPC.
The learned Additional District and Sessions Judge, First FTC Court, Nainital, by judgment dated January 7, 2004, rendered in Sessions Trial No.252 of 1998, companyvicted the appellant and Mumtaz under Sections 302, 376 and 201 of Indian Penal Code IPC and imposed penalty of death sentence for companymission of offence punishable under Section 302 IPC as well as R.I. for life for companymission of offence punishable under Section 376 IPC and a fine of Rs.10,000/ in default R.I. for one year and I. for seven years and a fine of Rs.5,000/ in default R.I. for one year for companymission of offence punishable under Section 201 IPC.
M. PANCHAL, J. The appellant and one Mumtaz were prosecuted for companymission of rape and murder of Yasmeen aged five years daughter of Nayeem Ahmad and for causing disappearance of evidence of those offences.
It was never the case of Ms. Bilkis that the frock and underwear recovered or seized by the police were blood stained and belonged to her daughter Shabnam.
The companyfirmation of the companyviction of the appellant under Sections 302, 376 and 201 IPC by the High Court and imposition of different punishments for those offences, has given rise to the instant Appeal by Special Leave.
In the cross examination also, the witness maintained that the appellant had met him on February 23, 1998 in the companyrt premises and neither the appellant number Mumtaz was in the lockup number inside the companyrt room and that the appellant had made the companyfession near the shops.
