AFTAB AHMAD ANASARI Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) The appellant and one Mumtaz were prosecuted for commission of rape and murder of Yasmeen aged five years daughter of Nayeem Ahmad and for causing disappearance of evidence of those offences. 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, convicted the appellant and Mumtaz under Sections 302, 376 and 201 of Indian Penal Code (IPC) and imposed penalty of death sentence for commission of offence punishable under Section 302 IPC as well as R.I. for life for commission of offence punishable under Section 376 IPC and a fine of Rs. 10,000/- in default R.I. for one year and R.I. for seven years and a fine of Rs. 5,000/- in default R.I. for one year for commission of offence punishable under Section 201 IPC.

(2.) Feeling aggrieved, the appellant and Mumtaz preferred Criminal Appeal No. 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 Division Bench of the High Court, by judgment dated December 17, 2004, has rejected the Reference and partly allowed the appeal by acquitting accused Mumtaz but affirmed the conviction of the appellant under Sections 302, 376 and 201 IPC. The death penalty awarded to the appellant for commission of offence punishable under 302 302 IPC is modified and the appellant is sentenced to R.I. for life for commission of the offence punishable under Section 302 IPC. The High Court has further maintained sentence imposed on the appellant under Sections 376 and 201 IPC. The confirmation of the conviction 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.

(3.) Mr. Nayeem Ahmad is resident at Mundia Pistor Village, Bajpur, District Udham Singh Nagar, Uttaranchal. His daughter Yasmeen aged five years having fair complexion 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. It was noticed 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 could not be traced. As search made by him did not 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. 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. On receiving this information, concerned police personnel reached the place where dead body of the deceased was lying. 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. The post mortem examination was carried out on February 8, 1998. The examination revealed that the deceased was subjected to rape and thereafter strangulated. 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. 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 cotton underwear with black stripes having blood stains and one bed sheet of light green colour with plenty of blood marks from the house of sister of the appellant. The articles discovered were seized under a panchnama and sent to forensic science laboratory for analysis. The Investigating Officer recorded the statement of those persons who were found to be conversant with the facts of the case. On receipt of report from the analyst and on completion of investigation, the appellant and Mumtaz were charge- sheeted in the Court of learned Judicial Magistrate, First Class for commission of offences punishable under Sections 302, 376 and 201 IPC. The offences punishable under Sections 302 and 376 IPC are exclusively triable by a Court of Sessions. Therefore, the case was committed to the Court of learned Additional District and Sessions Judge, Nainital for trial. The learned Judge framed necessary charges against the appellant and Mumtaz for commission of offences punishable under Section 302, 376 and 201 IPC. The same were read over to them. They pleaded not guilty to the same and claimed to be tried. Therefore, prosecution examined seven witnesses and produced documentary evidence to prove its case against the appellant and Mumtaz. 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. 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 appellant and Mumtaz had expressed desire to examine defence witnesses which was granted by the learned Judge. The appellant, therefore, examined DW1, Ms. Bilkis and DW2, Lakhbinder Singh alias Lakha in defence. The learned Judge noticed that the case was entirely resting upon circumstantial evidence. After holding that the deceased died a homicidal death, the learned Judge appreciated the evidence and held that four circumstances, namely, that (1) both the accused were seen by PW-3, Naseed Ahmad, at about 4.30 a.m. on 8.2.1998 fleeing away from near the place where the dead body of deceased Yasmeen was found after some time; (2) on the disclosure statement made by the appellant, blood stained frock and underwear of the deceased and blood stained bed sheet were recovered; (3) underwears of both the accused, seized, were stained with human blood and semen; and (4) extra- judicial confession was made by the appellant before PW-5, Anand Swaroop, are firmly established, to bring home guilt of the accused under Sections 302, 376 and 201 IPC. The learned Judge noticed that the chain of circumstances established was complete, cumulative effect of which was indicating that in all human probability, the offences were committed by the appellant and Mumtaz and by none other. In view of abovementioned conclusions, the learned Judge convicted the appellant and Mumtaz under Section 302, 376 and 201 IPC. Thereafter, the learned Judge heard the appellant and Mumtaz on the question of sentence to be imposed on them for commission of abovementioned offences. The learned Judge noticed that this was the rarest of rare case falling within the purview of guidelines laid down by this Court in Maulai and Anr. v. State of M.P., AIR 2000 SC 177 and imposed death penalty on both the accused for commission of offence punishable under Section 302 IPC. The learned Judge further imposed punishment of R.I. for life and a fine of Rs. 10,000/- and in default R.I. for one year for commission of offence punishable under Section 376 IPC. 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 commission of offence punishable under Section 201 IPC by judgment dated January 7, 2004. The imposition of death sentence resulted into Criminal Reference under Section 366 of the Code of Criminal Procedure, 1973. 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. The reference and appeal were heard together. The High Court on re-appreciation of evidence came to the conclusion 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 confession was made by the appellant before PW-5, Anand Swaroop. The Division Bench by judgment dated December 17, 2004 has partly allowed the appeal. The High Court has set aside the conviction of Mumtaz recorded by the Trial Court but confirmed the conviction of the appellant recorded by the Trial Court under Sections 302, 376 and 201 IPC. The High Court has further modified the sentence of death imposed on the appellant for commission of offence punishable under Section 302 IPC and awarded R.I. for life whereas sentences awarded for commission of offences punishable under Sections 376 and 201 have been confirmed.