MOHD ISLAM Vs. STATE

JUDGEMENT

(1.) With refer-ence to the testimony of Kumari Gulnar aged 10 years when she deposed in Court on 24.3.2005 and was aged about 8'/i years when the crime took place on 13.10.2003, the learned Trial Judge has held that the same establishes that the deceased Gulfasha aged 12-13 years was in the com-pany of the appellant at around 7.30 p.in., with reference to the fact that the ball Ex. P1 proved to be that of Gulfasha in view of the testimony of her father Lal Ahmed PW1 was recovered from the jhuggi of the appellant the learned Trial Judge has held that the same establishes that Gulfasha was inside the jhuggi of the appellant: with ref-erence to the fact that after he was appre-hended the appellant made a disclosure statement Ex.PW-8/A admitting to having raped and then murdered Gulfasha and while doing said act his shirt and Lungi got stained with blood which were got recovered by the appellant as entered in the memo Ex.PW-8/C on which, as per ESL report Ex.PW-15/G, only human blood could be detected the learned Trial Judge has held that the said fact was incriminating as it probabilized that as the young unfortunate girl bled when she was raped, her blood fell on the lungi of the appellant; lastly with respect to the fact that the appellant ab-sconded from his jhuggi the learned Trial Judge has held that the same evidences a guilty mind. Cumulatively read, all four cir-cumstances have been held to be sufficient, circumstances wherefrom the guilt of the appellant could be inferred for the offence of having raped and murdered Gulfasha whose dead body was found in the morning of 14.10.2003 near the dump yard. Proof of the fact that Gulfasha was subjected to a sexual assault is the post-mortem report Ex.PW-7/A, proved at the trial by its author Dr. Anil Shandil PW-7, which show multiple bruises and clear lacerated wounds on the face, lips and neck of the young unfortunate girl. There were finger impression marks with bruises on the neck with correspond-ing injuries inside the neck in the form of extravasation of blood in the neck muscles with fracture of thyroid, laryngeal and tra-cheal cartilages. Further, in the genitals of the young unfortunate girl blood clots were noted over labia majora and minora. Vagi-nal orfice had a visible torn which was con-tused and lacerated. Hymen was ruptured. Posterrior fourchette and wall of vagina was torn and lacerated. Asphyxia caused my manual strangulation was the cause of the death of the young girl. That the appellant was capable of performing sex stands proved by the testimony of Dr. Seema PW-13 who deposed that she was conversant with the writing and signatures of Dr. Vinod Kumar, the author of the MLC Ex.PW-13/A, which records the fact that the appellant was ca-pable of sexual intercourse.

(2.) During arguments in the appeal, learned counsel for the appellant conceded to the position that the post-mortem report of the deceased conclusively proves that Gulfasha was raped and thereafter stran-gulated to death. That the offence of rape and murder was committed was conceded; the only issue raised was whether the evi-dence is sufficient wherefrom the guilt of the appellant can be sustained.

(3.) With reference to the testimony of Ms. SakinaPW-4, the grandmother of Gulfasha, learned counsel for the appellant drew our attention to the fact that she admitted dur-ing cross-examination that the appellant knew her for the last 17-18 years and she had never heard a word against the appel-lant of his indulging in any illegal activity and hence urged that why would the appel-lant commit such a depraving act. With ref-erence to the testimony of Gulnar PW-3 learned counsel pointed out that Gulnar stated that the appellant was the Dada (Grand-father) of Gulfasha, meaning thereby everybody treated the appellant as a fatherly figure and said fact, urged learned counsel, rendered it most improbable that the appellant would commit the depraving crime. Conceding that the appellant was arrested on 16.10.2003, learned counsel urged that the appellant was lifted from the house of Khalil Ahmed where he had gone on 13.10.2003 because both were painters and had a joint work at hand and not from the place as claimed by the prosecution Thus, counsel urged that the appellant never absconded. Questioning the recovery of the ball Ex.P-1 from his jhuggi learned counsel urged that firstly no public person being associated with the recovery the same inspired no confidence and secondly there is no evidence that the ball had a peculiar distinctive feature which rendered the same an object of distinct identity and henco ca-pable of being identified as belonging to the deceased. Explaining the circumstance of human blood being detected on the Lungi which was got recovered by the appellant from his jhuggi, learned counsel urged that being a painter some red coloured paint had fallen on the Lungi and this was treated as a blood stain. Lastly, learned counsel urged that the appellant was a married person having children. His wife and children were in the jhuggi on 13.10.2003 and as admit-ted during cross-examination by Sakina PW-4, the grandmother of the deceased, the jhuggi of the appellant was 4-5jhuggis away from the jhuggi of Sakina and it was thus impossible for it not to be noticed that the deceased was first raped and then murdered by the appellant in his jhuggi and the body disposed of near a garbage dump.