2009 Supreme(SC) 380

2009(2) Supreme 139
SUPREME COURT OF INDIA
S.B. Sinha, Asok Kumar Ganguly and R.M. Lodha, JJ.
Pawan — Appellant
versus
State of Uttaranchal — Respondent
Criminal Appeal No. 1000 of 2006
With
Criminal Appeal No. 394 of 2009 @ SLP (Crl.) No. 5209/2006
Criminal Appeal No. 1036 of 2006, Criminal Appeal No. 1743 of 2007
Decided on : 26-02-2009

IMPORTANT POINTS
1. Omission of the names of witnesses in the F.I.R. is not material particularly because it is not necessary that all the names of witnesses be mentioned in the F.I.R.
2. If the plea of juvenility was not raised before the trial court or the High Court and is raised for the first time before Apex court, judicial conscience of the court must be satisfied by placing adequate and satisfactory material that the accused had not attained age of eighteen years on the date of commission of offence; sans such material any further enquiry into juvenility would be unnecessary.
3. Where the entire case hinges on circumstantial evidence, great care must be taken in evaluating circumstantial evidence to ensure that the circumstances on which the prosecution relies are wholly consistent with the sole hypothesis of the guilt of the accused.

Headnote:Indian Penal Code, 1860 – Sections 302, 201/34, 376, 377 – Offence of rape and murder – Prosecution of accused persons four in number for committing rape on a minor girl aged six years and thereafter causing her death by strangulating her – Prosecution case that victim had left her home to ease herself but she did not return home and at about 1.30 A.M., accused persons were seen throwing the dead body of a girl from the gunny bag – Conviction by trial court awarding death sentence to all of accused persons – High court while maintaining conviction altered death sentence to rigorous imprisonment for life – Appeals thereagainst – If despite frantic search throughout the day, the girl could not be traced, there was nothing unusual if prosecution witnesses were sitting outside hut of PW – 4, father of victim in the night with a hope that the girl may return or somebody may leave her – Sans insignificant and minor contradictions here and there, all four witnesses were consistent in their version on material aspects – Merely because names of two witnesses were not mentioned in the F.I.R., their presence not became doubtful – Omission of the names of two witnesses in the F.I.R. is not material particularly because it is not necessary that all the names of witnesses be mentioned in the F.I.R. – No dispute that underwears of accused were seized and these articles were sent for chemical examination – No dispute that evidence pertaining to chemical examination of underwears showed that those underwears were found stained with human semen and spermatozoa – Medical evidence also proved beyond reasonable doubt that victim died of homicidal death and that she was raped before being murdered – Nothing brought on record to show that PW – 2, PW-3, PW-4 and PW-5 had any enmity with A-1, A-2, A-3 and A-4 or had any special relations with the police- That A-1, A-2, A-3 and A-4 were seen throwing the dead body of the victim was also established – View taken by High Court held to be only possible view on a proper appraisement of evidence – No error committed by High Court in upholding the conviction of the accused persons for the offences punishable under Sections 302/34; 376 and 201/34 IPC – Sentence awarded to accused persons called for no interference – Appeals dismissed. (Paras 19 to 30, 39, 40)

       Juvenile Justice (Care and Protection of Children) Act, 2000 – Conviction of accused persons four in number for committing rape on a minor girl aged six years and thereafter causing her death by strangulating her – Challenge thereagainst on plea that A1 and A – 2 being ‘juvenile’ on the date of incident trial held under Code of Criminal Procedure was illegal – As regards A-2, two documents were relied upon to show that he had not attained age of eighteen years on date of commission of offence – His age 17 years mentioned by the trial court at the time of recording his statement under Section 313 Cr.P.C – . The other document was school leaving certificate issued by Headmaster which not inspired any confidence as it appeared to have been issued after A – 2 had already been convicted – Primary evidence like entry from the birth register had not been produced. – Difficult to accept Annexure P-3 (school leaving certificate) relied upon by counsel – For A-1, the only document placed on record was a school leaving certificate which had been procured after his conviction – In his case also, entry from birth register had not been produced – There being no satisfactory and adequate material, prima facie, no reason to call for report about the age of A – 1 and A – 2 on date of commission of offence. (Paras 37, 38)

       Facts of the Case :

       1.Accused persons four in number were prosecuted herein in the instant case for committing rape on a minor girl aged six years and thereafter causing her death by strangulating her. As per prosecution case victim had left her home to ease herself but she did not return home and at about 1.30 A.M., accused persons were seen throwing the dead body of a girl from the gunny bag. Trial court convicted accused persons awarding death sentence to all of accused persons. High court while maintaining conviction altered death sentence to rigorous imprisonment for life.

       2.Present appeals have been filed against said order of High Court.

       Findings of the Court :

       If despite frantic search throughout the day, the girl could not be traced, there was nothing unusual if prosecution witnesses were sitting outside hut of PW-4,father of victim in the night with a hope that the girl may return or somebody may leave her . Sans insignificant and minor contradictions here and there, all four witnesses were consistent in their version on material aspects. Merely because names of two witnesses were not mentioned in the F.I.R., their presence does not become doubtful. Omission of the names of two witnesses in the F.I.R. is not material particularly because it is not necessary that all the names of witnesses be mentioned in the F.I.R. No dispute that underwears of accused were seized and these articles were sent for chemical examination. No dispute that evidence pertaining to chemical examination of underwears showed that those underwears were found stained with human semen and spermatozoa . Medical evidence also proved beyond reasonable doubt that victim died of homicidal death and that she was raped before being murdered. Nothing brought on record to show that PW-2, PW-3, PW-4 and PW-5 had any enmity with A-1, A-2, A-3 and A-4 or had any special relations with the police. That A-1, A-2, A-3 and A-4 were seen throwing the dead body of the victim was also established. View taken by High Court held to be only possible view on a proper appraisement of evidence. No error was committed by High Court in upholding the conviction of the accused persons for the offences punishable under Sections 302/34; 376 and 201/34 IPC.Sentence awarded to accused persons called for no interference.

       Result : Appeals dismissed.