Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 180 OF 2007
State of U.P. .... Appellant(s)
Versus
Munesh .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) This appeal is filed by the State of U.P. against the final
judgment and order dated 16.10.2003 passed by the High
Court of Judicature at Allahabad in Criminal Appeal No. 737
of 2003 whereby the High Court allowed the appeal filed by
the respondent herein and acquitted him of the offences
punishable under Sections 302 and 376 of the Indian Penal
Code, 1860 (hereinafter referred to as “IPC”) and set aside the
judgment and order dated 15.02.2003 passed by the
1Page 2
Additional Sessions Judge/Special Judge (E.C. Act),
Bulandshahar in Sessions Case No. 748 of 2002.
2) Prosecution case in a nutshell is as follows:
(a) On 05.03.2002, at about 04.30 p.m., Roshni (the
deceased), aged about 11 years, had gone alone from her
house in Kalander Garhi, PS Khurja Nagar, Bulandshahar,
U.P. to prepare cow-dung cakes in the cremation ground of
Jatavs’ and while she was doing her work, the respondentaccused forcibly took her in the wheat field of one Jalil Khadar
with bad intentions. She raised cries and on hearing the same,
Madanlal (PW-2) and Suresh Chandra (PW-3), who were
passing through at a short distance, came to the said field and
saw that the respondent-accused was strangulating her with a
Dupatta. On seeing them, the respondent-accused ran away
and when they tried to chase him, he could not be caught.
When they returned back, Roshni was seen lying dead at the
site in naked condition. Both of them informed Kanchhi Lal
(PW-1), the father of the deceased-the complainant about the
said incident and at 11.05 p.m., PW-1 lodged an F.I.R. being
Crime No. 66 of 2002 at Police outpost Khurja Junction,
2Page 3
District Bulandshahar and a case under Sections 376, 302
and 511 of IPC was registered against the appellant.
(b) After investigation, Kshetrapal Singh, S.I. (PW-7) arrested
the accused on 14.03.2002. After filing of the charge sheet,
the case was committed to the Court of Sessions and
numbered as Sessions Case No. 748 of 2002.
(c) The Additional Sessions Judge/Special Judge (E.C. Act)
Bulandshahar, by judgment dated 15.02.2003, convicted the
respondent-accused and sentenced him to death under
Section 302 of IPC and to imprisonment for life under Section
376 of IPC.
(d) Aggrieved by the said judgment, the respondent-accused
preferred an appeal being Criminal Appeal No. 737 of 2003
before the High Court. For confirmation of death sentence of
the accused, Capital Sentence Reference No.7 of 2003 was
also filed which was heard along with the appeal filed by the
accused. The High Court, by impugned judgment dated
16.10.2003, allowed the appeal filed by the respondentaccused and acquitted him of all the charges and also rejected
the Capital Sentence Reference.
3Page 4
(e) Against the order of acquittal passed by the High Court,
the State has filed this appeal by way of special leave.
3) Heard Mr. Ratnakar Dash, learned senior counsel for the
appellant-State and Mr. G.S. Mani, learned counsel for the
respondent-accused.
4) Mr. Ratnakar Dash, learned senior counsel appearing for
the State of U.P. submitted as under:-
(a) the High Court has committed an error by disbelieving
the statement of two independent eye-witnesses, namely,
Madanlal (PW-2) and Suresh Chandra (PW-3) merely on the
ground that there are some contradictions between the
statements made under Section 161 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “the Code”) and in
their evidence before the court;
(b) the High Court has failed to appreciate the vital facts that
these two statements i.e. statement before the I.O. and the
statement before the Court were made after some interval and
there is bound to be some variance in the statements.
However, the omission in the statement is not fatal to the
prosecution case;
4Page 5
(c) the High Court was not correct in holding that there is
delay in lodging of the FIR. Even if there is delay, it has been
properly explained by the complainant - PW-1, father of the
deceased; and
(d) Since the prosecution story is fully corroborated with the
medical evidence on record that the victim was raped before
her death and she had died on 05.03.2002 at 4.30 p.m. due to
injuries, all these aspects have not been properly considered
and the High Court committed a grave error in acquitting the
accused.
5) On the other hand, Mr. G.S. Mani, learned counsel for
the respondent-accused submitted that in view of the
contradictions in the evidence of prosecution witnesses,
particularly, their statements before the I.O. under Section
161 of the Code and their evidence before the Court, the High
Court was fully justified in disbelieving their version. He
pointed out that non-recovery of chunni (dupatta) is fatal to
the prosecution case. He also pointed out that the
prosecution failed to prove the motive and it is highly
impossible to commit rape and murder at the same time.
5Page 6
According to the counsel, there was inordinate delay in lodging
the complaint and inquest was not made on the same night.
He further pointed out that all these aspects were correctly
appreciated by the High Court and ordered acquittal. Finally,
Mr. Mani submitted that inasmuch as the High Court, on
appreciation of evidence ordered acquittal, the same cannot be
lightly interfered by this Court exercising jurisdiction under
Article 136 of the Constitution of India.
6) We have carefully considered the rival submissions and
gone through the relevant materials as well as the reasoning of
the trial Court and the High Court.
7) As to the evidentiary value of eye-witnesses - PWs 2 and
3, it is not in dispute that both of them are not related to the
deceased. On the other hand, they are independent eyewitnesses who actually witnessed the occurrence. Madanlal
(PW-2), in his evidence has stated that Kanchhi Lal – (PW-1)
father of the deceased victim, belongs to his village and his
daughter by name Roshni was just 11 years old when the said
incident occurred. He also stated that the accused Muneshrespondent herein too belongs to his own village. He narrated
6Page 7
before the Court that on 05.03.2002, at 4.30 p.m. he was
passing through their field leading towards his village Manna
along with one more villager Suresh Chandra (PW-2) and,
ultimately, when they reached near the tube well fitted in the
field of Jalil Khadar in which standing wheat crop was grown,
at that time, they heard shrieking sound. On hearing the
same, they immediately rushed towards the said direction. On
reaching the spot, they saw Roshni lying down there and, at
that time, Munesh-the accused tied a noose around her neck
and tightened its knot. On seeing his action, both of them
asked him “what are you doing”. He further stated that after
strangulating her, he ran away in the direction of south and
they too followed him, but the accused could not be caught.
Thereafter, they returned back to the spot and found that
Roshini was lying on the ground in a naked state and the
noose was around her neck. Her salwar and underwear were
lying nearby her body. Immediately, they informed the same
to her father PW-1. PW-2 identified Munesh-accused in the
Court and asserted that it was he who committed the said act.
7Page 8
8) Though, learned counsel for the accused brought to our
notice that certain statements have not been stated by him
before the I.O., on verification of his statement under Section
161 of the Code and his evidence before the Court as well as
the statement of I.O. (PW-6), we are satisfied that the
contradiction, if any, is not much and the same would not
affect the credibility of his statement. It is not in dispute that
he is not related to the deceased, on the other hand, he is an
independent eye-witness belonging to the same village as that
of PW-1 and the accused.
9) The next eye-witness relied on by the prosecution is
Suresh Chandra - PW-3. In his evidence, he has stated that
PW-1 belongs to his own village and at the time of the
incident, his daughter was aged about 11 years. He also
admitted that even the accused-Munesh belongs to their
village. Like PW-2, PW-3 also mentioned that the occurrence
took place on 05.03.2002, between 4.30 to 5.00 p.m. He
further stated that he along with PW-2 was passing through
their field and when they reached near the tube-well of Jalil
Khadar, they heard shrieking sound, due to which, they
8Page 9
rushed towards the said direction. They saw Munesh-accused
has already got down Roshni, due to which, they shouted at
him. In the meanwhile, the accused put around her neck a
noose of her chunni (dupatta) and tightened it by pulling.
Thereafter, he ran away towards the south. Like PW-2, he
also chased him but the accused could not be caught. When
they returned back, they saw that she was lying naked on the
ground. Her salwar and underwear were lying near her body.
Her vaginal area had bleeding and her hands were full of cowdung. Thereafter, they informed the same to Kanchhi Lal –
PW-1, father of the deceased. Like PW-2, he also identified the
accused in the Court. Even in the cross-examination, he
asserted that when they saw her at the first instance itself, a
noose was tied around her neck and the accused was holding
both the ends of the said noose and was pulling it to tighten it
around her neck. He denied the suggestion that in order to
support the family of the deceased, he was making a false
statement. Here again, the counsel pointed out certain
discrepancies in the statement before the police officer and his
evidence before the Court. We have carefully verified the same
9Page 10
and we are satisfied that the alleged contradictions are trivial
in nature and have not affected the case of the prosecution.
10) The High Court, taking note of minor discrepancies,
particularly, their statements recorded by the I.O. and their
evidence before the Court, disbelieved their version. We are
satisfied that the High Court has committed an error in
rejecting their evidence. We have already stated that they are
independent witnesses and witnessed the occurrence at a
short distance and there is no reason to disbelieve their
version.
11) Now, let us see the evidence of PW-1, father of the victim.
It is true that he is not an eye-witness but his statement
corroborates with the statements made by PW-2 and PW-3. It
is his evidence that the deceased-Roshni was his daughter and
she was aged about 11 years at the time of occurrence. He
further deposed that on 05.03.2002, at about 4.30 p.m., she
went alone to the place of cremation ground of Jatavs’ for
preparing cow-dung cakes. At that time, Munesh-the accused
who also belongs to his village forcibly dragged her with bad
intentions to the wheat field of Jalil Khadar. He also stated
1Page 11
that on hearing the cries of her daughter, Madanlal (PW-2) and
Suresh Chandra (PW-3), who were passing through nearby the
field, shouted at him and tried to catch hold of him. He also
explained how PWs 2 and 3 chased the accused and informed
about the incident to him. Thereafter, according to him, he
rushed to the spot along with the villagers and saw that his
daughter was not only lying in naked condition but her chunni
was also lying around her neck as a noose. After searching for
the accused in his village and after finding that he was not
traceable, he submitted the written complaint to the P.S.
Khurja Junction which is Exh. A-1. He also identified the
accused who was present in the dock. He denied the
allegation that he falsely implicated the accused due to some
election dispute. There is no reason to disbelieve the version
of PW-1 and the trial court has rightly relied on him along with
the statements of eye-witnesses PWs 2 and 3. Unfortunately,
the High Court has rejected his evidence also on flimsy
ground.
1Page 12
12) Coming to the next contention about the delay in lodging
of the FIR, it is not in dispute that the incident occurred at
4.30 p.m. on 05.03.2002 and the complaint was made by PW-
1 at 11.05 p.m. on the same day itself. It has also come in
evidence that the distance between the place of incident and
the police station is 2 kms. Though the High Court has
commented that there was delay in lodging the complaint, it
must be noted that PW-1 - father of the victim is a villager and
on hearing the incident through PWs 2 and 3, he rushed to
the spot, made arrangements to cover the body of his
daughter, searched for some time to trace the accused, and
thereafter, reached the P.S. which is at a distance of 2 kms. at
11.05 p.m. If we consider the entire incident as narrated by
PW-1, it cannot be construed that there was any unreasonable
and unexplained delay which goes to the root of the
prosecution case. On the other hand, considering the
materials placed, we hold that the delay has been properly
explained by PW-1, even otherwise, the same cannot be
construed as abnormal as erroneously observed by the High
Court.
1Page 13
13) Though it is stated that all the details as spoken to by
PWs 1, 2 and 3 were not mentioned in the FIR, as rightly
observed by the trial Court, FIR is not an encyclopedia. It is
just an intimation of the occurrence of an incident and it need
not contain all the facts related to the said incident.
14) Coming to the contention about variance in the
statement recorded by I.O. under Section 161 of the Code and
the evidence before the Court, we have already expressed that
the contradictions are not much and the same have not
affected the prosecution story. It is to be noted that the
statement before the I.O. and the statement before the Court
were made after some interval and there is bound to be some
variance in the statements. After verification of both the
statements, we are satisfied that the omission is not much and
not fatal to the prosecution case and it should not prejudice
prosecution evidence. Accordingly, we reject the stand taken
by the counsel for the accused. We have already concluded
that the evidence of both the eye-witnesses, viz., PWs 2 and 3
are not only reliable but they are independent witnesses.
Further, in the absence of any previous enmity with the
1Page 14
accused, the question of falsely implicating the accused does
not arise.
15) Finally, let us consider the evidence of the doctor who
conducted the post mortem on the body of the deceased. Dr.
Awdesh Kumar (PW-4) attached to District Hospital,
Bulandshahar, in his evidence has stated that on 06.03.2002
Constables Jagat Singh and Usman brought the dead body of
Kum. Roshni, daughter of Kanchhi Lal along with the relevant
papers, specimen seal impression etc., for conducting post
mortem examination of the dead body. Both of them also
identified the said dead body before him. He compared the
seal stamped on the dead body package and found it to be
correct and packing too was found to be in tact. He further
deposed that at 3.30 p.m. on 06.03.2002, he conducted the
post mortem on the dead body. The age of the deceased
Roshini was about 11 years and she was of average physical
built-up by appearance. He noted the following ante-mortem
injuries on the dead body of the victim-Roshni.
1Page 15
“1. Ligature marks 20 cm x 2.5 cm all around neck and also
on that part of lower neck below thyroid cartilage.
2. Multiple linear abrasions on the back of left leg wholly, in
its back side of sizes varying in between 10 cm to 3 cm. The
face was congested and on her private part, blood was
visible.
In her internal examination, it was found that brain and
membranes of the brain, both long sacks, trachea, liver
tissues, kidney were found to be congested. Hyoid of neck
was found to have been fractured. Her hymen has been
ruptured. Its smear slide was prepared. It was then sent for
pathological examination.”
In his opinion, the cause of the death of the deceased was due
to asphyxia due to strangulation and also due to pre-mordial
injuries. The post mortem report was marked as Exh. A-2. For
a specific question, PW-4 has stated that “prior to her death,
the deceased was raped and due to that reason only, her
hymen has been found to be ruptured”. The above conclusion
of PW-4 fully supports the case of the prosecution that the
deceased was raped before strangulation. He also stated that
blood was seen in the vagina of the deceased and her hymen
was found to have been ruptured.
16) Mr. Mani has pointed out that in the absence of the
report of Sperm Detection Test, the conclusion regarding rape
cannot be accepted. It is true that PW-4 has stated that the
1Page 16
slide containing sperms which had been sent for examination
has not returned so far along with the examination report. In
the absence of such a report, the case of the prosecution
cannot be doubted about rape, particularly, in the light of
categorical findings of the doctor that her hymen was found to
have been ruptured. The other prosecution witnesses have
also stated injury on her private part and oozing of blood. The
medical evidence proved that the victim was raped before her
death and she died on 05.03.2002. In other words, the
prosecution story is fully corroborated with the medical
evidence on record and, unfortunately, the High Court failed to
give importance to the said evidence.
17) The I.Os PWs 6 and 7 prepared panchnama Exh. No. A-5
and related papers which are Exh. Nos. A-6 to A-9. Exh. No.
A-10 contains the list of articles confiscated by the I.O. viz.,
Salwar, panty and Hawai slippers which are marked as
material object Nos. 1 to 3. PW-6 has prepared a spot map
which is Exh. A-11.
1Page 17
18) Finally, learned counsel for the respondent submitted
that failure to recover chunni (dupatta) which was alleged to
have been used for pressing the neck goes against the
prosecution case. It is true that the prosecution has not
collected the same but, in the light of the material objects, the
evidence of prosecution witnesses, statement of the doctor who
conducted the post mortem, his opinion etc. amply prove the
prosecution case and we reject the claim of the counsel for the
respondent.
19) The primary concern both at national and international
level is about the devastating increase in rape cases and cases
relating to crime against women in the world. India is no
exception to it. Although the statutory provisions provide
strict penal action against such offenders, it is for the Courts
to ultimately decide whether such incident has occurred or
not. The Courts should be more cautious in appreciating the
evidence and the accused should not be left scot-free merely
on flimsy grounds. In the instant case, the accused had
committed rape, which repels against moral conscience as he
1Page 18
chose a girl of 11 years to satisfy his lust and subsequently
murdered her.
20) In the light of the acceptable materials in the form of oral
and documentary evidence led in by the prosecution,
particularly, the eye-witnesses PWs 2 and 3 who are
independent witnesses coupled with the evidence of the doctor
(PW-4), we accept the conclusion of the trial court and
disagree with the conclusion of the High Court. The analysis
and the ultimate conclusion of the High Court is contrary to
the acceptable and reliable material placed by the prosecution
and we hold that the accused has first committed the offence
of rape and then murdered the deceased. We are satisfied that
the prosecution has established both the charges under
Sections 376 and 302 of IPC.
21) In view of the same, the conclusion arrived by the High
Court is set aside. Taking note of the fact that the incident
occurred in the year 2002, we feel that rigorous imprisonment
for life would meet the ends of justice.
1Page 19
22) In view of the same, the respondent-accused is directed
to surrender before the concerned authority/Court within a
period of two weeks failing which the trial Judge is directed to
take necessary effective steps for sending him to prison. The
appeal preferred by the State is allowed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 12, 2012.
1
