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       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  

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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 respondent-

accused 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,  

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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 respondent-

accused and acquitted him of all the charges and also rejected  

the Capital Sentence Reference.

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(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;    

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(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.  

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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 eye-

witnesses 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 Munesh-

respondent herein too belongs to his own village.  He narrated  

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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.  

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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  

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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 cow-

dung.  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  

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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  

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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.   

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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.  

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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  

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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.   

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“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  

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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.  

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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  

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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.   

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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.

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