Allahabad High Court
Nazil vs State Of U.P. on 17 December, 2021
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 46 Case :- CAPITAL CASES No. - 1 of 2020 CONNECTED WITH REFERENCE No.1 of 2020 Appellant :- Nazil Respondent :- State of U.P. Counsel for Appellant :- Sadaful Islam Jafri,Nasira Adil,Nazrul Islam Jafri(Senior Adv.) Counsel for Respondent :- G.A. Hon'ble Manoj Misra, J.
Hon'ble Sameer Jain, J.
(Delivered by Manoj Misra, J.)
1. The appellant Nazil son of Nazim has been convicted by the court of Additional Sessions Judge, Fast Track Court (Crime against Women) /Special Judge, Protection of Children from Sexual Offences Act (Pocso Act), Rampur for offences punishable under Sections 363, 376-AB, 302 Indian Penal Code (IPC) and Section 6 of the Pocso Act, vide judgment dated 13.12.2019 passed in Special Case No.351 of 2019; and, by order dated 18.12.2019, has been awarded following punishment:
(i) Under Section 363 IPC, seven years rigorous imprisonment and fine of Rs.5,000/- with a default sentence of two months;
(ii) Under Section 376-AB IPC, capital punishment;
(iii) Under Section 302 IPC, capital punishment and fine of Rs.20,000/- with a default sentence of three months;
It be noted that as for the offence punishable under Section 6 of the Pocso Act, on the date of the incident, the maximum punishment was less than one prescribed for an offence punishable under Section 376-AB IPC, the appellant has been awarded punishment under Section 376-AB IPC, as disclosed above. Aggrieved by the judgment and order of conviction, the appellant has filed this appeal with a prayer that the order of conviction and sentence passed by the court below be set aside. In addition thereto, the trial court has sent a reference, namely, reference no.1 of 2020, under section 366 of the Code of Criminal Procedure, 1973 (for short Code or CrPC), for confirmation of the capital punishment i.e. death penalty.
INTRODUCTORY FACTS IN A CHRONOLOGICAL ORDER
2. (i) On 08.05.2019, at about 14.29 hours, a missing report (Ex. Ka-1) was lodged by Sharif Khan (PW-1), which was registered as Case Crime No.367 of 2019 at P.S. Civil Lines, District Rampur (Ex. Ka-6), wherein it was alleged that his daughter Zoya (the deceased), aged 6 years, on 07.05.2019, at 12.30 hours, wearing Firozi (dark blue) coloured knickers, had gone from her house to fetch curd but did not return and, despite hectic search, could not be found.
(ii) On 22.06.2019, at about 19.07 hrs PW-1 gave a written report (Ex. Ka-2) to the police stating therein that on receipt of information on 22.06.2019 that in Kashiram Colony, in a semi-built house, a body has been found, he reached the spot and from the slippers (Chappals), lying close to the body, and the clothes covering the body, he could identify the body as that of his daughter Zoya. Of this report there is G.D. Entry No.071, dated 22.06.2019, at 19.07 hrs (Ex. Ka-15).
It be noted that neither in the missing report (Ex. Ka-6) nor in the written report (Ex. Ka-2) any suspect is named.
(iii) After receipt of information with regard to discovery of a body, on 22.06.2019 inquest proceeding is carried out at the spot i.e. where the body was found, and completed by about 20.35 hours by Sub-Inspector Rohit Yadav (PW-6), who also prepares the inquest report (Ex. Ka-8). Inquest witness are: (a) Sharif (PW-1); (b) Aazam; (c) Junaid; (d) Farid; and (e) Rameshwar Prasad. The contents of inquest report reflects that the body was reduced to a skeleton; flesh had melted; hair had got detached from the skull and were lying near the head; the body had an upper garment (vest /Baniyan), dirty in color; and a dirty Jamuni (a shade of dark blue) colored lower garment (knickers). No external injury could be noticed, however, an autopsy was recommended.
(iv) At 21.10 hrs of 22.06.2019 the appellant (Nazil) is arrested after an encounter of which arrest memo (Ex. Ka-17) is prepared disclosing that he was arrested by S.I. Rohit Yadav (PW-6) and kept at District Hospital, Rampur. Importantly, no GD Entry of the arrest is made in the night of 22.06.2019. The GD Entry No.09 in respect thereof is dated 23.06.2019 at 06.18 hrs (Ex. Ka-16).
(v) At 10.22 pm i.e. 22.10 hrs of 22.06.2019, the medical examination of the appellant is held at District Hospital, Rampur. The medical examination report is part of paper no.16 Kha/ 29 and is part of the paper book at page 19 thereof, though not exhibited. However, from the statement of prosecution witness, namely, PW-6 (S.I. Rohit Yadav), which we shall examine later, as well as from arrest memo, it is established that Nazil was injured in the encounter and was taken to District Hospital, Rampur. The medical examination of the appellant reveals following injuries:
(a) Lacerated wound 0.7 cm x 0.7 cm x muscle deep over medial aspect of left knee joint 0.6 cm below upper border of left knee. No blackening present. Margins are irregular. Margins are everted, circular in shape. KUO. Advised X-ray of left leg and knee joint. Fresh bleeding present.
(b) Lacerated wound 0.5 cm x 0.5 cm x muscle deep over outer aspect of left leg 0.3 cm below lower border of left knee. Margins are inverted and irregular. Blackening around wound present. No fresh bleeding present. KUO. Advised X-ray of left leg and left knee. Fresh bleeding present.
(c) Lacerated wound 0.6 cm x 0.6 cm x muscle deep over medial aspect of right leg 0.2 cm below lower border of right knee. Blackening around wound present. Margins are inverted. Fresh bleeding present. KUO. Advised X-ray of right leg and knee to know nature of injury.
(d) Lacerated wound 0.7 cm x 0.7 cm x muscle deep over outer aspect of right knee 0.3 cm below upper border of right knee. No blackening present. Margins are irregular and everted. Fresh bleeding present. KUO. Advised X-ray of right knee and leg to know the nature of injury.
Opinion: All injuries are KUO. Advised X-ray of right and left leg and knee joint to know nature of injury and cause. All injuries are fresh in duration.
(vi) On 23.06.2019, at 06.19 hours, two reports (Paper No.16 Kha /23-24 and Paper No.16 Kha/ 25-26) are lodged at P.S. Civil Lines, District Rampur in respect of the encounter that allegedly took place at 21.10 hrs on 22.06.2019. Both these reports are lodged at the instance of S.I. Rohit Yadav (PW-6). One is registered as Case Crime No.457 of 2019 under Section 307 IPC; and the other is registered as Case Crime No.458 of 2019, under Section 3/25 of the Arms Act, both against the appellant (Nazil). GD Entry No.09 in respect of the incident has been exhibited as Ex. Ka-16 noted above. In these reports, it is alleged that in connection with the murder of Km. Zoya, while PW-6 was busy investigating the case of Zoya and was at Ambedkar Park crossing, through informer, he received information that Nazil son of Nazim, resident of 112/12, Kashiram Colony, who is involved in the murder of Zoya, is waiting near Ashram Paddhati School to meet someone. Upon receipt of that information, the police team reached the spot and in the light of car bulbs, saw a man standing near a Mazhaar. The informer pointed towards Nazil. As soon as the police vehicles closed on him, Nazil started running away and when he was signalled to stop, he fired at the police party twice. It is alleged that by providence the police party escaped injury and in the fire that was returned, Nazil got injured and was arrested. On arrest, from Nazil, a country made pistol with two live cartridges were recovered and two empty cartridges lying on the spot were also recovered. These reports, though are part of the paper book, as parts of paper no.16 Kha, but have but not been marked Exhibits. However, narration of the police action giving rise to these reports have come in the testimony of PW-6.
(vii) On 23.06.2019, at 10.57 hrs, vide G.D. Entry No.27 (Ex. Ka-18), a written application (Ex. Ka-3) submitted by Sharif (PW-1) is taken. In this application it is alleged that in connection with Km. Zoya, he had given oral information on 22.06.2019, during the course of inquest proceedings, now, he is informing in writing that, to his understanding, Nazil son of Nazim is involved in the rape and murder of his daughter.
It be noted that the basis of informant's suspicion against Nazil is not disclosed in Ex. Ka-3.
(viii) On 23.06.2019, by about 3 pm, post-mortem examination of the body is carried out by Dr. O.P. Rai (PW-4). The post-mortem report (Ex. Ka-4) describes the body as follows:-
"Mummified; shrivelled body with decomposed tissues and loss of tissues at places, loss of hairs and loosening of joints, practically odour less, very dark almost black in color; skin hard, dry, leathery and adhered closely to shrunken body; Eyes mummified, mouth wide open, nails blackened, natural orifices lost."
Injuries noticed are as follows:-
"Lacerated wound of 5.0 cm x 4.0 cm over the occipital scalp with under the scalp dried bleeding with fracture of occipital bone and loosening of sutures (pieces of fractured bone and the injured scalp - preserved for forensic expert opinion).
Mouth was found wide open; tongue, pharynx, larynx, vocal chords, trachea, thyroid, heart, oesophagus, lungs, bronchial trees all lost, hyoid fractured and pressured; ribs and chest wall mummified."
It be noted that the doctor in respect of internal examination of the abdomen had observed that all internal organs including intestine were mummified and lost. Further, in the opinion of the doctor, cause and manner of death was uncertain; viscera recovered from cervical, pelvic & cephalic region was preserved for forensic examination. The time of death was estimated as one and one-half month before.
(ix) On 25.06.2019, while the appellant (Nazil) was in District Jail Hospital, Rampur, permission was sought to record his statement. After obtaining permission, at 14.25 hours, Inspector Radhey Shyam (PW-8) allegedly records the statement of Nazil, entry of which is made in CD Parcha No.15. According to the prosecution, Nazil confessed his guilt and stated that he had taken Zoya to that semi-built house with a bottle of oil to be used as a lubricant for intercourse and when he attempted the intercourse, Zoya caught hold of his hair and pulled them as a result several of his hair might have fallen on the spot which he could get recovered. He also stated that the bottle of oil was hidden by him in a room in that semi-built house which he alone can get recovered.
(x) On 26.09.2019, Inspector Radhey Shyam (PW-8) moves application for police custody remand to effect recovery.
(xi) On 27.06.2019, police custody remand from 10 am to 5 pm of 28.06.2019 is allowed.
(xii) On 28.06.2019, the appellant is taken from jail in a police vehicle. As per record, he was taken out from the vehicle on a stretcher to effect recovery of his hair lying on the spot and the bottle of oil allegedly hidden by him. Recovery/ seizure memo (Ex. Ka-21) was prepared, which has no public witness. The seizure memo reflects that on 28.06.2019, at 9.45 hours, a police team, comprising Inspector Radhey Shyam (PW-8); Sub-Inspector Harendra Kumar; Constable Rakesh Kumar; Constable Imran Ali; Constable Yogendra Singh; and Constable Bhupendra Singh, with driver Head Constable Dalvir Singh went to District Jail, Rampur. At 9.55 hours, they enter the District Jail and, pursuant to the order of the court dated 27.06.2019, after getting entries in the register and medical examination of the accused-appellant, at 10.32 hours, take the accused to the spot. The Field Unit Team, headed by Shiv Kumar Chaudhary, is informed about their intended visit to the spot. When they arrive at the spot, the Field Unit Team with Sri Shiv Kumar Chaudhary is present. The accused gestures to stop the vehicle. The accused points towards the house where he had committed rape on Zoya and the place where Zoya had pulled his (accused's) hair and the place where he had hidden a bottle of oil. The seizure memo notes that by gestures, the accused guided the police party to the upper floor. On the upper floor, the accused took them to a bathroom type Kothri (small room) to point out the spot where he committed the crime and disclosed that the hair pulled from his head by Zoya are lying scattered here and there. It is recorded in the seizure memo that the accused requested for light, which was provided from the torch light of mobile phones, whereafter, the accused picked up the hair lying there, which were kept in transparent plastic polythene, provided by the Field Unit Team headed by Shiv Kumar Chaudhary, and sealed at 13.30 hours. After which, the accused took the team to the lower floor where there was a door-less Kothri (small room). It is recorded that there, from near the electricity board, he lifted a bottle of oil and told the police that this is that bottle which he had used to lubricate his organ for commission of rape. It is recorded that this bottle of oil was handed over to the Incharge of the Field Unit, namely, Shiv Kumar Chaudhary; and the bottle was kept in a polythene and a plastic jar and sealed for the purposes of obtaining finger print.
(xiii) The incriminating material was dispatched to the Forensic Science Laboratory, U.P. The receipt of which, provided by Forensic Science Laboratory, was brought on record as Exhibit Ka-23.
(xiv) On 02.08.2019, PW-8 prepared and submitted charge sheet (Ex. Ka-26) against the appellant under section 363, 302, 376AB IPC and section 5/6, Pocso Act.
(xv) On 05.09.2019, the trial court charged the appellant for commission of offences of kidnapping, murder and rape of a minor punishable under Sections 302, 376-AB and 363 IPC; and Section 5(m)/6 of the Pocso Act. The appellant denied the charges and claimed trial.
(xvi) The blood sample of the accused Nazil; the hair sample of the accused Nazil; hair recovered from the spot; Baniyan (upper garment) and Knickers (lower garment) recovered from the body of the deceased, were all sent for forensic examination and to collect evidence including DNA profiling. The report of the Forensic Laboratory, U.P., Lucknow (Exhibit-36) indicated that the DNA profile of the blood of the accused matches with the DNA profile of the hair recovered from the spot. The forensic examination of the upper and lower garment of the deceased disclosed presence of allele (a form of a gene) with male characteristic but only partial DNA profile could be generated. Similarly, only a partial DNA profile of the hair collected from Nazil could be generated. The forensic report in respect of skull; hyoid bone; scalp skin; teeth; and tissue obtained from cervical, pelvic and cephalic region, was also obtained but it did not disclose presence of any kind of poison. The bottle of oil recovered from the spot was sent for finger print expert report. The finger print expert report was produced and marked as Ex. Ka-28. The finger print expert report indicated that the disputed sample No.5561 matched with sample No.5567; whereas the disputed sample Nos.5563, 5564, 5565 did not indicate sufficient characteristic to enable matching; and the sample No.5560 was blurred. It be noted that according to the report, the sample Nos. 5562 to 5575 were obtained from right hand whereas sample Nos.5576 to 5577 were obtained from left hand of the accused.
(xvii) In the trial, eight prosecution witnesses were examined, namely, Sharif (PW-1) Informant - Victim's father; Rahima (PW-2) - Victim's sister -witness of the deceased last seen with the appellant; Guddu Khan (PW-3) - witness of the deceased last seen with the appellant; Dr. O.P. Rai (PW-4) - Doctor who conducted autopsy; Kuldeep Kumar (PW-5) - police personnel who entered missing report; Rohit Lal Yadav (PW-6) - the first Investigation Officer (I.O.) who conducted inquest and effected arrest of the appellant on 22.06.2019 and proved papers in connection therewith; Rishipal Singh (PW-7) - the second I.O. who conducted investigation since 23.06.2019 - he took written application from PW-1 on 23.06.2019 and recorded clarificatory statement of PW-1 - prepared site plan (Ex. Ka-19) from where body of Zoya was recovered and video-graphed the confessional statement of the appellant made to the police, when he was arrested after encounter, from his mobile; Radhey Shyam (PW-8) - the third I.O. - he proved - recording of disclosure statement of the appellant made on 25.06.2019 while he was in district jail hospital - taking the appellant on police custody remand - making of recovery on 28.06.2019 - preparation of site plan (Ex Ka-37) of recovery - dispatch and receipt of materials for forensic examination - submission of charge sheet - receipt of forensic reports.
(xviii) On 24.10.2019 an application no.30 Kha, submitted by the appellant to summon the mother of Zoya, who was listed as prosecution witness in the charge sheet, and the doctor of District Hospital, Rampur as well as the record to prove injury report, dated 22.06.2019, i.e. Paper No. 16 Kha/29 (supra) of the appellant, was rejected by the trial court on the ground that the prosecution has prayed to discharge Zoya's mother and the injury report was prepared in connection with the encounter case, which would be tried separately.
(xix) On 02.11.2019, the incriminating circumstances appearing in the prosecution evidence were put to the appellant for recording his statement under Section 313 Cr.P.C. In his statement under Section 313 Cr.P.C., the appellant admitted that a girl named Zoya had gone missing. But denied the allegation that on 07.05.2019, he was with Zoya and that informant's daughter Rahima had seen him with Zoya. He stated that the entire story was subsequently developed and it finds no mention in the report dated 08.05.2019. He denied that he was with Zoya and was spotted by PW-2 (Rahima) near the Talab. In respect of the testimony of PW-3 (Guddu Khan), he stated that he is brother-in-law of Sharif (PW-1) and that on account of being relative of PW-1, he is giving a false statement. In respect of incriminating material recovered, he stated that false recovery is shown by police to set up a false case to save themselves because they showed a false encounter. He denied having made any disclosure statement and stated that the police had prepared the documents sitting at the police station. He stated that the police had injured him, and on gun point got the disclosure statement signed from him. He stated that he committed no offence; that the police had arrested him on 22.06.2019 from taxi stand and they framed him in this case. He also stated that the police had forcibly pulled his hair to show recovery. He also stated that after he was injured, the police to save themselves had called Sharif to the police station and asked him to submit a written application against him. He reiterated that the entire police action is to save themselves and that the police recovered nothing from him. In addition to what is noticed above, he stated that Sharif's (PW-1's) wife's brother, namely, Azam, is also a taxi driver like him. He had taken the appellant's taxi and got that taxi involved in an accident. In connection with which, he had a fight with Azam and because of this enmity, Sharif had made false allegation and the police to show good work that they have solved the case, framed him and they took him to a secluded place and shot him on both his leg and the police in collusion with Sharif has falsely implicated him.
(xx) On 28.11.2019, the trial court rejected another application no.34 Kha of the appellant, under section 311 CrPC, for summoning the doctor, who examined the appellant on 22/23.06.2019, and the Ballistic Expert to demonstrate that the recovery of country made pistol and the cartridge in the encounter was bogus.
(xxi) On 29.11.2019, the appellant moved another application 37 Kha to bring on record certified copy of his injury report dated 22.06.2019, already on record as paper no.16 Kha/29, as paper no.39 Kha.
(xxii) On 02.12.2019, defence witness (DW-1) - Nazim - was examined to disclose that Guddu Khan (PW-3) is relative of Sharif and is a resident of some other place. On this date, the trial court also disposed off application 37 Kha by directing that the certified copy of the medical report of the appellant dated 22.06.2019 be taken on record though it was not assigned an exhibit number.
(xxiii) On 6.12.2019, the trial court concluded the arguments and on 13.12.2019 conviction order was passed followed by pronouncement of sentence on 18.12.2019.
FINDINGS RETURNED BY TRIAL COURT
3. The trial court, after considering the evidence brought on record, concluded that from the testimony of PW-1 and PW-2 it is proved that, the victim Zoya, aged 6 years, was to go with her elder sister (PW-2) to fetch curd in between 12.15 and 12.30 hrs of 07.05.2019. But, she did not go with her sister, rather her sister went alone and the victim sat with the appellant on an E-Rickshaw parked outside her house; that, the appellant and informant party are neighbours and knew each other therefore, there was no reason to be suspicious about the appellant; that, on that day, there was a fire in the colony hence there was lot of commotion and confusion; that, when victim's elder sister (PW-2) was returning, after getting curd, she saw the appellant and the deceased moving together towards Tashka Talaab; that, PW-3 also saw them together as seen by PW-2; that, thereafter, about an hour later, the appellant was seen returning alone and when he was asked about Zoya, he gave no clear reply; that, Zoya was not seen alive thereafter; that, her body was found on 22.06.2019; that, the autopsy report disclosed fracture of skull, suggesting a case of homicide; that, on arrest the appellant confessed his guilt; that, on his disclosure statement, there was recovery of hair and oil bottle from the spot which, when read with forensic evidence, confirms appellant's presence at the scene of crime thereby, completing the chain of circumstances and, in absence of plausible explanation from the appellant, pointed towards his guilt of having committed the offences for which he had been charged by ruling out all other exculpatory hypothesis. The trial court thus, convicted the appellant as above and upon finding that it was a case where a minor girl, aged 6 years, was raped and murdered, awarded death sentence. As a death sentence requires confirmation by the High Court, a reference has been made to the High Court, which has been registered as Reference No.1 of 2020.
4. We have heard Sri N.I. Jafri, learned Senior Counsel, assisted by Ms. Nasira Adil, for the appellant; Sri J.K. Upadhyay, learned A.G.A., for the State; and have perused the record.
SUBMISSIONS
5. Assailing the judgment and order of conviction and sentence, learned counsel for the appellant submitted as follows:-
(i) The trial court has not tested the prosecution evidence and, without putting the same to scrutiny, accepted the prosecution evidence as gospel truth. Such a decision is no decision in the eyes of law.
(ii) The evidence of the deceased being last seen alive with the appellant is unacceptable and completely unreliable for the following reasons:
(a) Admittedly, the missing report (Ex. Ka-1), lodged on 07.05.2019, and the written report (Ex. Ka-2) given on 22.06.2019, after discovery of body, suspects none. Even the written report (Ex. Ka-3) given by the informant (PW1) on 23.06.2019 does not put forth the theory of last seen;
(b) From the testimony of prosecution witnesses PW-1; PW-2 and PW-3, it appears that they were fully aware from 7.5.2019 itself, that is even before lodging the missing report, that the deceased had been with the appellant when she was last seen alive. If it was so, that is had the deceased been last seen alive with the appellant, in a span of 45 days, appellant's name would have definitely surfaced as a suspect. More so, because the appellant was known to the informant party from before, being a neighbour of the informant.
Thus, the last seen story is bogus and a figment of imagination, developed on police pressure, after the encounter, to save the police from searching questions and to give them a medal of having solved the case. Even otherwise, the last seen evidence is not of much consequence because no body saw the appellant entering the house (place where the body was found) with the deceased or leaving that house on or about the time of incident. Further, proximity between the place where the deceased was last seen alive with the appellant and the place from where the body was recovered has not been established. Consequently, this evidence by itself can not form basis of conviction.
(iii) That the investigation is tainted and destroys the credibility of the prosecution case. In this regard following circumstances are relevant:
(a) No effort was made to test the credibility of information as to whether the appellant had any involvement in the crime and straight away the appellant is subjected to arrest by use of force. Notably, inquest was completed at 20.35 hrs on 22.06.2019, during which, according to police witnesses, oral information was received with regard to the appellant having a hand in the crime, immediately thereafter, without testing that information, the police by constituting a team proceeds to arrest the appellant even though nothing is there to suggest that the appellant was absconding. And, at 21.10 hrs on 22.06.2019, the appellant is arrested, after an encounter, as a suspect, even though, by that time, there is no entry in the police records with regard to the appellant being a suspect. This casts a serious doubt on the bona fides of the investigation and taints the investigation with an indelible scar;
(b) All stages of the investigation, though by different officers, were from the same police station and, therefore, discredits the alleged disclosure statement as well as the alleged recovery. More so, when there is no public witness to support the same;
(c) Another aspect that casts serious doubt on the bona fides of the investigation is that the report of the night encounter is not made till 06.18 hours of 23.06.2019. All of this indicates that the police, to save themselves from searching questions in respect of the alleged encounter, contrived a story that, during the course of inquest, the police were orally informed that the appellant had a hand in the murder of Zoya. To support this false story, a written report (Ex. Ka-3) was obtained, vide G.D. No.27 (Ex. Ka-18), in the morning of 23.06.2019, at 10.57 hrs, from PW-1, confirming that he gave oral information during the course of inquest proceeding. Importantly, in this written application (Ex. Ka-3) too, it is not disclosed that the deceased was last seen with the appellant by any person, at a specified place and time, on 07.05.2019. All of this suggests that the author of that application (Ex. Ka-3) had no conviction in the statement made therein and that the police wanted a free hand to develop the story as per its convenience;
(d) The taint in the investigation gets amplified with what happened thereafter. Notably, no disclosure statement leading to discovery of a material fact is made on 22.06.2019 when the appellant allegedly confessed his guilt to the police, which was video-graphed by the I.O. from his mobile phone but, immediately thereafter, when a new I.O. (PW-8), from the same police station, steps in, he allegedly records a disclosure statement on 25.06.2019, while the appellant is in District Jail Hospital, which is not witnessed by a member of public, or any independent person, and, three days later, on 28.06.2019, effects recovery, which again is not witnessed by a member of public or any independent person. All of this demonstrates that the investigation was not fair and was only with a view to nail the appellant;
(e) From the testimony of prosecution witnesses it appears that when the body was discovered at the spot there were bottles, etc. No recovery memo of that was made and no effort was undertaken to test whether there could be involvement of any other person;
(f) That the place from where the body was recovered is an open semi-built house having access to all but no effort was made to find out as to who all were entering and leaving that house over the relevant period;
All these circumstances confirm that the investigation was not fair and either, it was with a view to nail the appellant by solving the case some how, or, to save the police from searching questions in respect of the encounter that allegedly took place in the night of 22.06.2019.
(iv) That the alleged recovery of hair and the bottle of oil from the spot at the pointing out and on the basis of disclosure statement of the appellant is all cooked up and has no support of a public witness. The disclosure statement has been obtained from the appellant on gun-point to build the prosecution case and justify illegal police action, which was nothing short of gross misconduct on the part of the police. The disclosure statement becomes highly doubtful also for the reason, that in the earlier confessional statement made to the police, immediately after encounter, video-recorded from mobile, nothing is there with regard to the presence of hair or bottle of oil at the place of the incident therefore, no sanctity could be attached to the subsequent disclosure statement as well as to the recovery, not witnessed by any member of public. More so, when the appellant was injured with gunshot injuries on his leg and was scared for his life. Otherwise also, it would not be prudent to accept that strands of hair of the appellant would be lying on the spot of a semi-built house, having access to all, particularly from where the body has been found and where inquest was held, that too, after 50 days of the incident. Recovery story is therefore completely unbelievable and has been thoroughly explained by the appellant.
(v) That the trial court has not considered the explanation of the appellant in his statement recorded under Section 313 Cr.P.C. wherein he stated that his hair were pulled out from his head and sealed to show that they were recovered from the spot; and that the entire exercise was carried out on paper and he was forced to sign at gun point. It has been submitted that the aforesaid explanation fits perfectly with the string of circumstances emanating from the prosecution evidence and appears logical and believable, inter alia, for the following reasons:-
(a) That scene of crime from where hair were recovered, is a spot already discovered as there the body was found on 22.06.2019; the police had already scanned the spot to find out incriminating material, if any, therefore, there remained no possibility of presence of any further incriminating material;
(b) That the circumstance of finger prints found on the oil bottle matching with that of the appellant is of no consequence because, firstly, the bottle was planted and false recovery was shown and, secondly, admittedly, in the seizure memo it is recorded that the bottle was lifted by the appellant and given to the police. Thus, if it was lifted and handed over by the appellant to the police, the existence of finger prints on the bottle stood explained from the seizure memo itself.
(vi) That there is no forensic or medical evidence to confirm rape; and the confessional statement made before the police, in that regard, being not admissible, conviction under section 376AB IPC and section 6 Pocso Act has no basis.
(vii) That even if the appellant is considered guilty it is not a case for capital punishment.
6. Per contra, learned A.G.A. submitted that the prosecution evidence is reliable; that there is no specific material elicited during cross-examination, or produced, to demonstrate that the police or investigating officer was inimical to the appellant; that, admittedly, the appellant and the victim were neighbours and there was no occasion to draw suspicion against him therefore, delay in naming the appellant is not fatal to the prosecution case; that the time since when the deceased went missing gets fixed from the missing report and, from the prosecution evidence, shortly before that, the deceased was seen in appellant's company, and was not seen thereafter therefore, the burden was on the appellant to explain as to when he parted company. The appellant instead of giving an explanation made a false denial, therefore, this should be read as an incriminating circumstance against the appellant. Otherwise also, merely because the appellant was arrested after an encounter, in which he might have suffered injuries, is not a valid reason to doubt the recovery. Hair of the appellant falling on spot, on being pulled by the victim, is quite natural and, therefore, it cannot be said that the recovery is bogus. Further, the DNA profile of the recovered hair matches with the DNA profile of the blood sample obtained from the appellant. Thus, the presence of the appellant on the spot is proved, which, in absence of explanation, is sufficient to record conviction. Learned A.G.A. further submitted that absence of independent public witness is not always fatal to recovery as the police witnesses have proved the recovery. Moreover, the appellant has disclosed no personal enmity with the police personnel. He also submitted that the presence of finger prints of the appellant on the bottle of oil is also an incriminating circumstance. Even though the seizure memo reflects that the bottle of oil was lifted and provided by the appellant to the police but, from the testimony of PW-8, it is clear that the bottle was lifted from cap/crown and therefore, the presence of finger prints on the bottle existed from before and were not imprinted on account of the bottle being lifted at the time of preparing the seizure memo. He submitted that, under the circumstances, the prosecution has been successful in proving the charges framed against the appellant and since, it is a case of brutal rape and murder of a six years old girl, the death penalty awarded by the court below is liable to be confirmed.
7. Having considered the rival submissions, before we proceed to examine the weight of the respective submissions, it would be useful to notice the oral testimony of the prosecution witnesses, which is as follows:-
PROSECUTION EVIDENCE
8. PW-1 (Sharif) (informant) -the father of the victim. He states that he had four children, now, only three remain, after death of Zoya. On 07.05.2019, at 12.30 hours, he saw his elder daughter Rahima (PW-2) and victim Zoya coming downstairs to go to fetch curd. At that time, Nazil (the appellant) was sitting in front of the house on a rickshaw. When he saw the girls, Nazil called Zoya. At that stage, PW-1 went upstairs. 15-20 minutes later, Rahima (PW-2) returned alone with the curd. When he asked Rahima (PW-2) as to where Zoya is, she told him that Zoya is with Nazil Bhai near Tashka Talab. When Zoya did not return, thinking that she may be nearby, his wife Huma (not examined) started calling for Zoya. But when she did not respond, they started inquiring about Zoya. As, despite search, she could not be found, they lodged missing report (Ex. Ka-1) on the next day. He stated that the police also searched for Zoya but she could not be found. On 22.06.2019, when he was in his house, 2-3 persons came from near Tashka Talab and told him that a girl child's body has been discovered. On receiving information, they went to that place, which is a semi built house. On its upper floor, in a small room, body was noticed. From body structure, clothes and slippers he could gather that it was Zoya's body. On information, the police arrived. A written report (Ex. Ka-2) was given by him to the police. The police conducted inquest proceedings, of which, he was one of the witnesses. He proved his signature on the inquest report (Ex. Ka-8). He stated that near the body of his daughter a packet of oil, one cigarette, Chappal of Zoya was seen. Zoya's body had clothes, namely, knickers and vest (Baniyan). He states that on the next day, he gave a written report (Ex. Ka-3) scribed by Guddu (PW-3). He stated that he suspected Nazil from before. But, now, after recovery of the body, he was convinced that the culprit is Nazil and nobody else. He stated that he says so because his daughter Rahima (PW-2) had seen Nazil with Zoya.
In his cross examination, he stated that he had been residing in the colony for the last 10-12 years; below his quarter is the quarter of Guddu Bhai; Nazil with his family resides just in front of his quarter in another quarter; that he saw Nazil (the accused) sitting on an e-rickshaw at about 12.15 hours and thereafter, he went inside the house; that, on that day, there was a fire in the colony, as a result, there was a lot of commotion; that he searched for his daughter and must have searched 17-18 quarters; in the night also, he searched with the aid of a torch and the search continued till 1.30 AM in the night. He also searched for his daughter in fields as well as Talaab (pond) and when there was no success, he reported the matter to the police on the next day. The report was written by Fazil on his dictation. He stated that on the same day the police inquired from him. He told the police that she had gone to fetch curd. He stated that he had inquired from the shopkeeper selling curd but he does not remember the name of the shopkeeper. He stated that the police had also scanned the pond to find out whether Zoya had drowned. He denied the suggestion that he received information from a lady named Seema that his daughter has been sold to Banjaras (nomadic tribe). He stated that, on 22.06.2019, the children of Kashiram Colony had discovered the body first, and then, three persons from village Tashka, informed him with regard to discovery of the body and by the time he reached the spot, a number of persons had gathered there. Later, the police also arrived and there were media men as well. The media persons had also photographed him but they had not recorded his statement. He stated that the police had inquired from him as to whom he suspected and on that day when the body was discovered, he gave a written report (Ex. Ka-2). He stated that that report must have been given at 7.30 pm. Thereafter, the police conducted the inquest proceeding and after inquest, they took his statement and prepared site plan. He stated that from the place where the body was found, the police had also lifted a packet of yellow oil and cigarette; and they had lifted all articles from near the spot. He stated that he had recognised the body with the help of clothes and slippers. He stated that inside the house, there was darkness but, things were recovered in the light of a torch. Apart from those two articles, nothing else was recovered from the (Kothri). However, on search of Kothri, as well as the house, from where the body was recovered, liquor bottles were found outside that room. He stated that on the next day of recovery of the body, he had given another written application (Ex. Ka-3). He stated that inference with regard to the involvement of Nazil was drawn from the circumstance that Nazil was with his daughter on that day, which information came to him from his elder daughter Rahima (PW-2). On further questioning, he stated that he had got information on 07.05.2019 itself that Zoya had gone with Nazil; and that he asked Nazil on 07.05.2019 about Zoya. But Nazil replied by saying that he does not know. He stated that he had suspected Nazil but was not sure till recovery of Zoya's body. He admitted that he never expressed his suspicion against Nazil to the police before. He stated that his quarter is about 400-500 paces away from the spot where the body was found. He stated that Nazil was arrested by the police on the same day when the body was recovered though, he did not know from where the arrest was made. He admitted that Nazil has a taxi. He denied the suggestion that on 22.06.2019 when the accused (Nazil) was in lockup, he had gone to serve him dinner. He stated that in his presence, after inquest proceedings, the body was sealed by the police. The police queried him then as well as on the next day. Thereafter, on the following day, police recorded the statement of his wife and daughter (Rahima). In his cross examination, upon suggestion of motive for false implication, he admitted that Azam is his brother-in-law and a driver. He, however, denied having knowledge about his brother-in-law taking taxi of Nazil and getting it involved in an accident, resulting in a fight between Nazil and Azam. He also denied knowledge of threat extended by Azam to Nazil in that connection. He also denied the suggestion that the fight had taken place just below his quarter. He denied the suggestion that he is telling lies in collusion with the police to provide support to the police case.
9. PW-2 (Rahima) - Elder daughter of Sharif (PW-1), aged 9 years, and is elder sister of the deceased Zoya. The court recorded her statement after putting questions to her to ascertain whether she understands the gravity of speaking the truth. Upon finding her competent, the court proceeded to record her statement. The witness stated that on the date when Zoya went missing, it was a fasting day (Roza). Her mother asked her and Zoya to get curd (Dahi). It must have been noon when she and her sister came down. Nazil was sitting on a rickshaw. He called Zoya. Zoya started talking to him whereas, she (PW-2) proceeded to fetch curd. When she was returning after getting curd, she saw Nazil with Zoya near Talaab (pond). When she called Zoya, Nazil told her to go and that Zoya will come. When she (PW-2) went upstairs to her quarter, her mother asked her about Zoya and she informed her mother that Zoya is with Nazil Bhai near Talaab. PW-2 stated that when her sister did not return, her mother and father went in search for Zoya. Within one hour, Nazil Bhai was seen returning alone. But Zoya was not with him. Her mother and father inquired from Nazil about Zoya. To which, Nazil responded in a mumbling tone that he does not know.
In her cross examination, she stated that the police had been visiting her house daily, morning and evening, and they had been taking her including her parents in a Jeep. Her father had told the police not to come till Teeja but the police did not agree and they have brought them for their statement and therefore, she is here to give her statement. She further stated that Nazil's quarter is just in front of her quarter. The rickshaw was parked on the side, which was visible and Nazil Bhai was sitting on the rickshaw. Her mother had given her Rs.10/- to go with Zoya to get curd. She had gone to a new shop at the Puliya (culvert). She did not remember the time taken by her to get the curd. She stated that when she was returning after getting curd, she saw Nazil Bhai going towards Maidan Talaab. When her mother asked her about Zoya, she told her that she has gone with Nazil Bhai near Maidan Talab. At that time, her father was present in the house. She stated that her mother and father had gone in search of Zoya immediately thereafter, though she does not know the place they visited. It must be an hour later, that her father and mother met Nazil Bhai. On being queried about Zoya, Nazil Bhai stated that he does not know. She stated that this question was put to Nazil in her presence. She further stated that, thereafter, her parents did not take Nazil to search for Zoya as, at that time, Nazil was intoxicated. On being questioned, she stated that she does not know whether Nazil has any addiction of any kind of intoxication. On being questioned further, she stated that she does not know about intoxication. She stated that body of her sister was found about one and one-half months later and information of that was given by one vegetable vendor Babu Bhai. She also stated that one Mulla had told her father that his daughter has been sold by one Seema. She admitted that Nazil has a car which belongs to his father (Nazim). She also stated that Nazil was not searching for Zoya. She stated that, at 12 noon, in the colony there was fire. She stated that by the time she returned after taking curd, it must have been 1 pm. She stated that she does not remember as to when police had inquired from her about the incident. She also stated that from her quarter to Tashka Talaab, there are houses on both sides, where people reside. She stated that she does not know the distance between Tashka Talab and the spot from where the body was recovered. She denied the suggestion that the police had tutored her to state what she has stated. She stated that she is aware that in court after taking oath, one has to state the truth. She also denied the suggestion that she is lying.
10. PW-3 (Guddu Khan) -a resident of Kashi Ram colony. He stated that on May 7, 2019, at about noon, there was a fire in Kashiram Colony. Hearing the noise, he came out of his house and saw Nazil sitting with Sharif's daughter Zoya on an e-rickshaw and talking to her. Thereafter, he left to see where the fire was. He took 10 minutes to return and saw Nazil and Zoya going towards Tashka Talaab. Thereafter, he got busy in his own work. One hour later, he saw mother and father of Zoya standing below Puliya (culvert) searching for Zoya. At that time, he also came out of his house to see Nazil returning from near the Talaab. Zoya's mother questioned Nazil about Zoya to which he hurriedly replied by saying that he does not know. At that time, Nazil was under influence of some intoxicant. After body was found from the vacant house near Tashka Talaab, they all suspect that Nazil is the perpetrator of the crime.
In his cross examination, he stated that he saw Zoya going with Nazil at around 12-12.30 hours. Later, within an hour or so, he saw Nazil returning alone. PW-3 stated that he does not know whether Nazil's mother and father inquired from Nazil about Zoya. He stated that he saw Sharif's wife asking from Nazil about Zoya near Puliya (culvert), which is just 4-5 paces from Sharif's house. He could not remember whether Zoya's mother and father had inquired from Nazil's mother and father. He stated that he also did not ask Nazil's mother and father about Zoya. On return, Nazil went upstairs to his quarter whereas Zoya's parents kept searching for her. He had also searched for Zoya and got an announcement made in the Masjid. He however did not remember the time spent by Nazil with Zoya sitting on the rickshaw. He stated that the curd shop is quite far from Zoya's house though, he does not know the distance. He stated that he had not gone to see the body when it was found. But when he had reached the spot, the police were stopping people from entering the house. He stated that he has not signed any paper on the spot where the body was found but, two or more times, the police had come and got his signature though, the police did not put any question to him. He denied the suggestion that he has settled in the colony only since last one or one and half months. He stated that his quarter is next to Nazil's quarter. He denied the suggestion that he had broke open the lock and forcibly occupied the house and is therefore, lying. He also denied the suggestion that he entered into a fight with Nazil under influence of liquor and had threatened him. He, however, admitted the suggestion that he has given a report that Nazil was threatening him not to give statement. He denied the suggestion that because he is Bahnoi (sister's husband) of Sharif he is lying.
11. PW-4 (Dr. O.P. Rai). He had conducted the autopsy he proved the postmortem report and its contents, which have already been noticed above. He stated that it is possible that death could have occurred on 07.05.2019 at about 12.30 hours on account of injury on the head and neck. He stated that no evidence of any acid on the body was found. He, however, made no disclosure with regard to the possibility of the deceased being subjected to sexual assault.
12. PW-5 (Constable Kuldeep Kumar). He proved the G.D. Entry of the first information report made on 08.05.2019.
13. PW-6 (S.I. Rohit Yadav) - the first I.O. He stated that upon receipt of missing report on 08.05.2019, he visited the spot, recorded statement of Sharif Khan (PW-1) and prepared site plan (Ex. Ka-7) showing the location of the house from where Zoya went missing. He searched for the victim; took the photographs of the victim from the informant, circulated the same in the media; recorded the statement of Constable Kuldeep Kumar; on 09.05.2019 inquired from Ali Ahmad, curd shop owner; took the statement of independent witnesses Amit Kapoor and Ashok Babu and distributed pamphlet; and on 10.05.2019, checked CCTV footage from Max Hospital located in front of Kashiram Colony but could get no information. On 10.05.2019, the statement of neighbour Nazil was also recorded. The information of the missing girl child was also uploaded on the website. On 11.05.2019, statement of informant's neighbours was recorded but no information could be collected. On 12.05.2019, again, search operation was carried out at various places. Similarly, on 13.05.2019, search was carried out but no information could be gathered. This process of search continued. On 22.06.2019, at 7.07 PM, information was received from the informant about recovery of his daughter's body from a semi built house at village Tashka. On receipt of information, he, with his team, went to the spot for inquest and prepared inquest report. He proved various papers in connection with inquest proceedings and with regard to sealing and forwarding the body for autopsy. He stated that during inquest proceeding, he recorded a clarificatory statement of the informant and, thereafter, he left in search of Nazil and when he reached Ambedkar Park Crossing, he received information from an informer that the person responsible for the death of Zoya is near the Mazhaar, close to Ashram Paddhati School. On receiving that information, he and his team reached the spot and, in the light of the vehicles, spotted Nazil. When the vehicle reached near Nazil, he started to walk fast and when he was requested to stop, he fired at the police. The police returned fire. After which, the police heard him crying. Consequently, firing was stopped and Nazil was arrested with a country made pistol and two live cartridges. On being inquired, he disclosed his name as Nazil son of Nazim, a resident of 112/12 Kashiram Colony. He stated that as Nazil was arrested in an injured condition, he was brought to District Hospital, Rampur. On interrogation, Nazil admitted to having killed Zoya. He proved G.D. Entry No.71 (Ex. Ka-15), dated 22.06.2019, return G.D. Entry No.9 (Ex. Ka-16), dated 23.06.2019, at 6.18 hours, and also the arrest memo (Ex Ka-17).
In his cross examination, he admitted that after lodging the missing report, the informant had told him that Zoya had gone to fetch curd. He admitted that at that time the informant had not told him that Zoya was seen with Nazil on a rickshaw or was seen with Nazil at Tashka Talaab or that Nazil was seen coming alone. He admitted that no suspicion was expressed by the informant against Nazil and the site plan was prepared by him on the pointing out of the informant. He stated that at a marble shop, there is a CCTV camera and there is a CCTV camera at Max Hospital. Both the cameras had not captured anything material. He stated that on 10.05.2019, he had recorded the statement of Nazil and, on 11.05.2019, he had recorded the statement of Tabassum. Tabassum had told him that Zoya was seen playing at about 12 noon. The statement of Nusrat was also recorded who had seen Zoya at 8 am of that morning. He admitted that the case diary from 08.05.2019 up to 30.05.2019 has been prepared under his signature. He stated that Tashka Talaab is towards south of Block No.112 and people going towards Tashka Talaab will not be captured in the CCTV camera. He stated that the inquest proceedings had started at 7.30 pm and culminated by 8.35 pm. The body was found in the bathroom in a decomposed condition. Light on the spot at the time of Inquest was provided by mobile phone torches and there was sufficient light on the spot. He could not remember whether near the body, inside the Kothri, a yellow oil packet and a cigarette was found. He could not remember whether it was lifted and a seizure memo was prepared. He stated that he had not lifted the hair from near the body nor he remembers noticing them. He stated he reached Ambedkar Park at 8.45 pm and within 2-4 minutes, the informer came and soon thereafter, the Inspector Ramveer Singh came with his team and, immediately thereafter, Rishipal Singh (PW-7) arrived at 8.50 pm. He stated that by the time the informer had given the information, Rishipal Singh (PW-7) had not arrived. After getting information from the informer, the entire team proceeded towards Ashram Paddhati School, there were, in all, nine police men in Jeeps. In the encounter that followed, the accused was arrested and was sent to the hospital without Chitthi Majrubi. He denied the suggestion that the police had fired on both knees of the accused to threaten him and under threat that he would be killed, got his confessional statement. He stated that initially the accused was taken for primary care to Hospital, Rampur from there he was referred to Meerut. He stated that the entire night he was at the hospital and returned at the police station at 6.18 hrs. He denied the suggestion that the entire case has been falsely framed just to support the police case.
14. PW-7 (Inspector Rishipal Singh). He stated that on 23.06.2019, on account of Inspector Incharge Radhey Shyam being on leave, he was the Inspector (Incharge) at Police Station, Civil Lines, Rampur. The case, at that point in time, was being investigated by Rohit Yadav. After the encounter, on getting evidence of murder, the case was converted to one punishable under Section 302 IPC. On 23.06.2019 he took over the investigation. On 23.06.2019, vide G.D. Entry No.27, at 10.57 hours, Sharif Khan gave a written application (Ex. Ka-3) about the incident in which it was stated that during the course of inquest proceedings, he had disclosed to the police regarding involvement of Nazil son of Nazim in the rape and murder of Zoya and, therefore, section 376AB IPC and section 5 (m) / 6 Pocso Act were added. This GD Entry No.27 was marked Ex. Ka-18. He proved preparation of the site plan from where the body was recovered, which was marked Ex. Ka-19. He stated that the accused on his arrest had confessed to the police and that confessional statement was video-graphed with the help of mobile of which a compact disc has been prepared and sealed (Ex. Ka-20).
In his cross examination, he stated that when the investigation was taken over by him, the informant had given written report following which, his clarificatory statement was recorded wherein he stated about the involvement of Nazil as also that the information in that regard was passed on during the course of inquest proceeding. He, however, admitted that he did not ask the informant as to what was the basis of his suspicion against Nazil and as to why he gave no information to that effect earlier. He stated that the site plan (Exhibit Ka-19) from where the body was recovered was prepared by him on the next day at about 1.15 pm. He also stated that on the spot (near Kothri), half burnt cigarette butts and hair lying scattered were noticed by him but he had not disclosed their presence in the map prepared by him because he did not consider it to be necessary. He had also seen an oil packet in the Kothri though he did not disclose it in the site plan. He stated that he had scanned the upper floor of the house but did not scan the ground floor. He also tried to inquire from the neighbours of that house but they were not found. He denied the suggestion that the accused had not voluntarily confessed and that he was shot on the knees to forcibly extract a confession from him in police custody. He also denied the suggestion that the entire exercise was done to fortify the police case.
15. PW-8 (Inspector Radhey Shyam). He stated that he is the Inspector Incharge of P.S. Civil Lines, Rampur. He took over investigation of the case on 25.06.2019 under the orders of Circle Officer, City. After taking over the investigation, he went to record the clarificatory statement of Sharif Khan (informant), who stated that he is in mourning and is not in a position to get his statement recorded. On the same day, after obtaining permission of the Court, he went to Hospital of District Jail, Rampur where Nazil was in judicial custody and at 14.25 hours recorded his disclosure statement wherein Nazil confessed his guilt by stating -- that on the date of incident there was a fire in the colony. When everybody got busy in the fire, he took Zoya, in between 12 and 1 pm, to a semi built house in Gram Tashka and took her to the upper floor of the house. At that time he had a bottle of oil because he had intention to have intercourse with her. Upon entering the Kothri, he pounced on Zoya and after lubricating his organ with oil had intercourse. Zoya attempted to scream and pulled his hair. At that time, he strangulated her. He stated that his hair pulled from his head by Zoya, must be lying on the spot. He also stated that he had hidden the bottle of oil in that part of the house which he alone can tell. He stated that he can get the hair lying on the spot and the bottle of oil recovered. PW-8 stated that on 26.06.2019 an application for police custody remand was moved before the court to effect recovery of hair and bottle of oil. On 27.06.2019, police custody remand for 28.06.2019, from 10 am to 5 pm, was allowed. On 28.06.2019, PW-8 with his team took the accused from jail to the place of occurrence after informing the Field Unit Team Incharge Sri Shiv Kumar Chaudhary to be present at the place of occurrence. On reaching the spot, the accused Nazil pointed towards the place of occurrence. The accused was taken out of the vehicle on a stretcher and on his gestures, he was taken to the upper floor of the house where there was a bathroom shaped Kothri. The accused pointed that it was that very place where he raped the victim and it is here that the victim had pulled his hair from his head, which are lying on the spot and after collecting the hair lying on the spot, they were handed over to the Field Unit Incharge Shiv Kumar Chaudhary, who sealed them in a transparent plastic jar. Thereafter, Nazil took them to the lower floor and took out a bottle of oil from the electricity board of that Kothri. The bottle was held by the accused from its crown/cap. The bottle had some oil. The bottle was sealed for finger prints. He proved the recovery memorandums as well as the material exhibits produced before the court. He also proved various dispatches to forensic laboratory as well as forensic reports including collection of blood sample etc and papers and material exhibits in connection therewith. He also proved various stages of the investigation including collection of finger print, dispatch of sample, etc to the forensic laboratory and the reports obtained in pursuance thereto as well as submission of charge sheet.
In his cross examination, he stated that he had not obtained statement of Dr. Dashrath Singh who had examined the appellant. He stated that no certificate of the doctor was obtained while recording the statement of Nazil. He stated that at the time of recovery, Nazil was in a position to speak and gesticulate. He stated that he had failed to transcribe as to what the accused stated at the time of recovery. He stated that at the time when Rohit Yadav was investigating, the accused had made no confessional disclosure. He stated that on 23.06.2019, Inspector Rishipal Singh had recorded confession of which CD was prepared. He stated that the previous I.O. Rishipal Singh had only entered two case diary parchas. He came back from leave on 25.06.2019. He denied the suggestion that he had gone on leave just to save his skin from the fall out of the encounter. During cross examination, he stated that in the site plan prepared by the previous I.O. Rishipal Singh, no hair was shown lying on the spot i.e. Kothri where the offence was committed. Whereas in the map which he prepared on 28.06.2019 he had shown hair lying on the spot i.e. the same Kothri. He denied the suggestion that liquor bottles were found but not disclosed by him. He admitted that at the time of recovery and preparing the seizure memo there was no public witness of the recovery because when they were requested, they refused to be a witness. He, however, admitted that at the time of making seizure memo he had not incorporated that no public witness came forward despite request though he claimed that this omission in making a note was an inadvertent mistake. During his cross examination, on 15.10.2019, at internal page 15, bottom paragraph, he stated that the first statement of Sharif (the informant) was recorded on 08.05.2019 by Rohit Yadav and thereafter Rishipal Singh, Inspector, recorded the clarificatory statement of Sharif (informant) on 23.06.2019. He stated that he had recorded the statement of Guddu; the informant; informant's wife Huma; and informant's daughter Rahima on 31.07.2019 and their statements were taken at the door of their house at one go. He stated that inadvertently the name of informant's wife Huma was left out from the list of witnesses to support the charge sheet. In his cross examination, on 15.10.2019, he reiterated that the accused had lifted the bottle of oil from its cap but the finger prints of his palm and fingers were obtained to ensure that they could be compared with the finger prints available on the bottle. On being questioned with regard to the other case registered against the accused Nazil, he admitted that the accused had to be admitted in hospital at Meerut but the medical papers in respect of treatment offered to the accused at Meerut are not there in the records, as they may be part of that case. He denied the suggestion that he had pulled the hair from the head of the accused to show a false recovery. He denied the suggestion that the accused had made no disclosure in respect of hair and bottle of oil present on the spot. He denied the suggestion that public witness was not roped in to effect recovery because the recovery is bogus and fictitious. He denied the suggestion that at the spot, liquor bottle was seen. He denied the suggestion that the statement of prosecution witnesses was recorded in the police station while sitting at the table. He denied knowledge of Guddu being Bahnoi of Sharif. He denied the suggestion that the samples collected for forensic examination were not properly secured. He denied the suggestion that the X-ray report and supplementary report have deliberately not been produced to hide the gravity of injury suffered by the accused. He denied the suggestion that the investigation was carried out in a fraudulent manner. He denied the suggestion that the witnesses were forced to depose against the accused. He denied the suggestion that the accused was lifted in the evening of 22.06.2019 from a taxi stand and taken to a secluded place where he was shot at on his knees after putting wet Taat Ki Patti (Bandage) so as to threaten and coerce him into making a disclosure statement. At this stage, on the application of the prosecution, he was examined to prove site plan that was prepared at the time of the alleged recovery of hair and the bottle of oil, which, on his statement, was marked as Ex. Ka-37. On this statement, he denied the suggestion that all this was prepared while sitting at the police station.
16. The incriminating circumstances appearing in the prosecution evidence was put to the accused for recording the statement under Section 313 Cr.P.C. The Statement made under Section 313 Cr.P.C. has already been noticed above. In addition to the explanation given in the statement under Section 313 Cr.P.C., the accused examined DW-1 Nizam as a defence witness.
17. DW-1 (Nizam). He stated that Guddu Khan is Sharif's real Bahnoi. He produced the voter list showing entry of the name of Guddu Khan in the voter list to demonstrate that he had been a resident of another colony.
ANALYSIS OF THE EVIDENCE
18. Having gone through the entire evidence brought on record, in our view, in the prosecution evidence, following features stand out:
(i) Missing report lodged by Zoya's father (PW-1) on 08.05.2019, stating that Zoya went from home to fetch curd at 12.30 hours on 07.05.2019 and has gone missing, suspects none. Further, from the statement of PW-2, it is clear that Zoya did not go to fetch curd rather, she was with the accused-appellant and this fact was brought to the notice of PW-1, yet, PW-1 in his missing report mentions that Zoya had gone to fetch curd.
(ii) For as long as 45 days neither PW-1, nor any other person, informs the I.O. in respect of Zoya not having gone to fetch curd but having stayed with the accused-appellant even though, the I.O. had been in regular touch with the informant to get further information about the missing girl.
(iii) Even on recovery of the body on 22.06.2019, when the police is informed by the informant (PW-1) at 17.09 hrs on 22.06.2019, through a written report (Ex. Ka-2), regarding discovery of the body in a semi-built vacant house, of which GD Entry No.71 (Ex.Ka-15) is made on 22.06.2019, no suspicion of any kind is expressed against the accused-appellant.
(iv) Inquest proceeding starts within half an hour of receipt of information and culminates by 20.35 hrs (8.35 pm). The informant, amongst others, is a witness of the inquest and the first I.O. Rohit Yadav (PW-6) prepares the inquest report (Ex- Ka 8). The entry in the inquest report with regard to the opinion of the inquest witnesses is that Zoya has been killed by some unknown person even though, PW-6 states that during inquest the informant had given information with regard to the involvement of the appellant in the crime.
(v) Written application (Ex- Ka-3) is given by Sharif on 23.06.2019, by way of G.D. Entry No.27 (Ex. Ka-18) at 10.57 am, wherein, for the first time, the informant (PW-1) makes a statement with regard to his suspicion against the appellant (Nazil) and also makes a disclosure therein that he had given information with regard to the involvement of Nazil (the appellant) during the course of inquest proceedings. But, interestingly, Radhey Shyam (PW-8), the third I.O., in his cross examination, on 15.10.2019, at internal page 15, makes a significant statement, which is extracted below:-
^^lhMh esa oknh 'kjhQ dk igyh ckj C;ku fnuakd 08-05-19 dks Jh jksfgr ;kno foospd }kjk fy;k x;k FkkA rRi'pkr Jh _f"kiky flag bUliSDVj }kjk oknh 'kjhQ dk ethn c;ku fnukad 23-06-19 dks fy;k x;kA^^ This indicates that no formal statement of Sharif (PW-1 - the informant) with regard to the involvement of Nazil (the appellant) in the crime was there in the case diary till 23.06.2019.
(vi) Written application (Ex- Ka-3) given by the informant on 23.06.2019 though refers to the satisfaction of the informant (PW-1) with regard to the involvement of Nazil (the appellant) in the crime but gives no basis for such satisfaction or reason for his suspicion. The written application (Ex. Ka-3) fails to disclose that the victim (the deceased) instead of having gone to fetch curd, as had been the story thus far, had actually remained with the appellant and was seen going towards Tashka Talaab with the appellant on that fateful day.
(vii) The place from where the recovery of the body was made is an open, semi-built vacant house. It is not demonstrated in the evidence that it had limited or restricted access. This implies that it had access to all. The Inquest was carried out in presence of torch light on 22.06.2019 thereafter, on the next day (23.06.2019), the second I.O. (PW-7 - Rishipal Singh) prepared site plan (Ex. Ka-19) after again visiting the spot with the informant and mentioned nothing substantial in the site plan with regard to presence of any incriminating material or article on the spot. Whereas, the place from where recovery of hair of the appellant on 28.06.2019 is shown, is the same Kothri, on the first floor of that semi-built house, where the body was discovered, inquest was held on 22.06.2019 in the presence of witnesses and the second I.O. (PW-7) visited it to prepare the site plan (Ex. Ka-19) on 23.06.2019.
19. Before we proceed further, considering that we are dealing with a case which is to be decided on the basis of circumstantial evidence, it would be useful to notice the legal principles to be borne in mind when a criminal trial is to be decided on the basis of circumstantial evidence. Where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of circumstances so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused (vide Hanumat Govind Nargundkar & Anr. V. State of Madhya Pradesh, AIR 1952 SC 343; Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116). In Vijay Shankar V. State of Haryana, (2015) 12 SCC 644, the Supreme Court following its earlier decisions in Sharad Birdhichand Sarda (supra) and Bablu V. State of Rajasthan, (2006) 13 SCC 116, in respect of a case based on circumstantial evidence, held that "the normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of hypothesis other than that of the guilt of the accused and inconsistent with their innocence". Further, (vide paragraph 153 of the celebrated judgment in Sharad Birdhichand Sarda's case) the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby they 'must or should' and not 'may be' established. In addition to above, we must bear in mind that the most fundamental principle of criminal jurisprudence is that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793). These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:-
"18.On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.
19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."
20. Having noticed the prosecution evidence and the legal principles governing decision of a criminal trial on circumstantial evidence, we notice that in the instant case, the prosecution seeks to bring home the guilt of the accused appellant by proving following circumstances: (a) that the deceased was last seen alive with the accused-appellant on or about 12.30 or 13.00 hrs on 07.05.2019 going towards Tashka Talaab and, thereafter, the deceased was not seen alive; (b) that on 22.06.2019 the body of the deceased was recovered from a Kothri on the first floor of a semi-built house; (c) the autopsy report suggests that the deceased died a homicidal death; (d) that the autopsy report confirms that death could have been caused on or about the time when the deceased was last seen with the accused-appellant; (e) that on the disclosure made by the accused-appellant and at his pointing out hair strands were recovered from that Kothri which, upon DNA matching, were confirmed to be of the appellant; (f) likewise, a bottle of oil bearing finger prints of the appellant was also recovered at the instance of the appellant from another place of that house, which confirms the presence of the appellant at that place.
21. Now, we shall examine as to whether the prosecution has been able to successfully prove all the circumstances narrated above. Before we proceed further, we may observe that the prosecution has been successful in establishing the following circumstances in respect of which there is hardly any dispute even in statement of the accused-appellant recorded under section 313 CrPC. These circumstances are: (i) that informant's daughter went missing since the afternoon of 07.05.2019; (ii) that on 22.06.2019 her mummified body (with all organs and orifices missing) was discovered lying in a Kothri on the first floor of a semi-built house; and (iii) that from the autopsy report dated 23.06.2019 it appeared that her death could be homicidal and could have occurred a month and a half back that is on or about 07.05.2019. Therefore, what we have to carefully examine is whether the circumstance of the deceased being last seen alive with the accused on or about 12.30 hrs on 22.06.2019 has been proved beyond doubt; and whether there was a recovery of incriminating material, noticed above, on the disclosure, and pointing out, of the accused-appellant.
Circumstance of the deceased being last seen with the appellant
22. First, we shall analyse the evidence in respect of the circumstance of the accused-appellant being last seen with deceased on or about noon time of 07.05.2019. Before we dwell on this issue we may observe that, ordinarily, the circumstance of the deceased being last seen alive with the accused may alone not be sufficient to record conviction (vide Nizam V. State of Rajasthan, (2016) 1 SCC 550; Navneetakrishnan V. State, (2018) 16 SCC 161; and Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715). But, it is an important link in the chain of circumstances that could point towards the guilt of the accused with some certainty. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is long gap and possibility of other persons coming in between exists (vide State of U.P. V. Satish, (2005) 3 SCC 114). Similar is the view taken in Ramreddy Rajesh Khanna Reddy & Another V. State of A.P., (2006) 10 SCC 172, where, following the decisions in State of U.P. V. Satish (supra) and Bodhraj V. State of J & K, (2002) 8 SCC 45, in paragraph 27 of the judgment, it was held that "the last seen theory, furthermore, comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Even in such cases the courts should look for some corroboration." Here, no doubt, the time-gap between the deceased being last seen alive with the appellant and recovery of the body is so large that last seen theory by itself would not be sufficient to nail the accused but the prosecution has put forth evidence of recovery as well, therefore, we would have to meticulously examine each of the two circumstances.
23. In so far as the evidence of the deceased being last seen alive with the accused on 07.05.2019 around noon time is concerned it does not inspire our confidence for the following reasons:
(i) In the missing report which was lodged on 08.05.2019 by PW-1, the father of the deceased, it is specifically stated that the deceased had gone to fetch curd on or about noon time of 07.05.2019 but she did not return thereafter whereas, in the testimony of both PW1 and PW2 (elder sister of the deceased), during trial, the story is that though the deceased was to go to fetch curd with her elder sister (PW-2) but she did not go as she was called by the appellant, who was sitting on an e-rickshaw and, thereafter, they (i.e. the deceased and the appellant) were seen going towards Tashka Talaab. Importantly, from the testimony of PW-2 it is clear that she had informed her mother (not examined) in the presence of her father (PW1) that day itself that the deceased did not go with her to get curd but was with the accused-appellant. The question that now arises is that, if it was so, where was the occasion to mention in the missing report that she (Zoya) had left her house to fetch curd. This improvement in the prosecution story to introduce the theory of last seen, which was not there initially, shrouds the last seen theory with grave suspicion.
(ii) The last seen theory was developed too late. For 45 days, that is till the discovery of body, there was no last seen theory. Even when the body was discovered, in the written information (Ex. Ka-2), given on 22.06.2019, no last seen theory is there. Importantly, even in the written application (Ex. Ka-3), given on 23.06.2019, though suspicion against the accused-appellant is expressed but the basis of such suspicion, including the last seen theory, is conspicuous by its absence. In fact, this last seen theory is developed only after the police arrests the accused-appellant in the alleged police encounter. This inordinate delay in making a disclosure of highly incriminating circumstance, even though, the police had been regularly inquiring from the informant party, seriously dents the credibility of the last seen theory. In Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, the apex court had observed that :
"If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness kept silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, was bound to lose most of its value."
No doubt, the aforesaid observations may not have application where the knowledge of the witness with regard to the incriminating circumstance against the accused of murder is inchoate and the witness is waiting for some material to convert his suspicion into belief. But here the accused and the informant party are next door neighbours therefore, if an incriminating circumstance had come to the notice of the informant it sure would have reached the police more so when it relates to a minor daughter, who has gone missing. Further, here, the informant had already approached the police with a missing report therefore, having knowledge of a gravely incriminating circumstance against a person yet, not bringing it to the notice of the police for as long as 45 days, seriously dents the credibility of the last seen theory. Unfortunately, the trial court overlooked this vital aspect of the matter.
(iii) The last seen theory does not get corroboration from the conduct of the appellant, as could be elicited from the prosecution evidence. Noticeably, in the testimony of both PW1 and PW2, the accused-appellant though, had left with Zoya on or about noon time of that fateful day but had returned back within an hour. Further, it is not the case of the prosecution that the appellant went hiding for some time or was not seen for a few days as is expected of a person having a guilty mind. Ordinarily, when a person commits a heinous crime, his natural reaction would be to avoid those who would be putting questions to him. But, here, the accused-appellant returned back within an hour and never hid himself or absconded.
(iv) In addition to what we have noticed above, there is an additional circumstance which dents the last seen theory and gives us an impression that it is an after thought, probably, at the suggestion of the police. This is so, because the last seen theory gains momentum only after police arrests Nazil (the appellant) after an alleged encounter. The question that immediately arises is whether at the time of effecting arrest there existed some cogent material/ evidence against the appellant that may convince the police to effect arrest with such promptitude, or was the arrest effected only to show good work to ward off media pressure. This question assumes importance because of what happened thereafter. Admittedly, a simple action of effecting arrest turned into an ugly encounter, in which gun shots had to be fired at the appellant resulting in gun shot injuries on the body of the appellant for which he had to be admitted in the Hospital in the night of 22.06.2019 and had to be referred to District Hospital Meerut. As the police admittedly suffered no injury in the encounter, naturally searching questions would come. Therefore, the question that crops up is whether to avoid searching questions in respect of the encounter, the police forced the informant to set up this story. Notably, it is the specific case of the appellant in his statement under section 313 CrPC as also by way of suggestion to the prosecution witnesses that the police shot the accused on both his legs from a close range to extract a confession and, in furtherance whereof, to save themselves from searching questions, took application from informant and staged a false recovery by pulling his hair. No doubt, no evidence in respect of that allegation has come nor could come because it is the accused alone who could say so, but it is well settled in law that the prosecution has to prove its case beyond the pale of doubt whereas, the accused would succeed if he, by his explanation, manages to create a reasonable doubt with regard to the correctness of the prosecution case (vide Hate Singh Bhagat Singh v. State of M.B., AIR 1953 SC 468; Reena Hazarika v. State of Assam, (2019) 13 SCC 289). When we examine the matter in that light, we find that till 22.06.2019, starting from the missing report dated 07.05.2019, there is no major development in the case. On discovery of body on 22.06.2019, the police swings into action and effects arrest within two hours. In Joginder Kumar V. State of UP, (1994) 4 SCC 260, it was observed: no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. These observations of the Supreme Court in Joginder Kumar's case have been noticed with approval in a recent three-judge Bench decision of the Supreme Court in Social Action Forum For Manav Adhikar And Another V. Union of India, (2018) 10 SCC 443. Therefore, now the question that arises is whether by evening / night of 22.06.2019 was there any such cogent material / information available with the police as against the appellant to warrant appellant's arrest forthwith. In this regard, Rohit Yadav (PW-6), who prepared the inquest report, states that during inquest proceedings he got information from the informant regarding involvement of the appellant in the murder of Zoya and immediately thereafter, he left in search of Nazil (the appellant) and reached Ambedkar Park crossing. This statement does not appear in sync with the statement of PW-8 who, as we have already noticed above, disclosed that the case diary indicates that after 08.05.2019 the clarificatory statement of the informant was recorded on 23.06.2019. Assuming that what Rohit Yadav (PW-6) stated related to oral information. But, inquest proceeding got over at 8.35 pm and till then, as appears in the inquest report, the opinion of the inquest witnesses, including the informant, was that the perpetrator of the crime was an unknown person. Whereas, from the statement of Rohit Yadav (PW-6), it appears, PW-6 was at Ambedkar Park Crossing, looking for the accused, immediately after the inquest, and effected arrest, after an encounter, at 21.10 hrs or 9.10 p.m. Relevant portion of the statement of Rohit Yadav, made during his cross examination on 19.09.2019, is extracted below:-
^^vEcsMdj ikdZ ij eSa djhc vkB iSrkfyl ij igqapk FkkA eq[kfcj nks pkj feuV ckn vk x;k Fkk] bUlisDVj jkeohj flag viuh Vhe ds lkFk igqap pqds FksA bUlisDVj _f"kiky flag djhc vkB ipkl ds djhc vk x;s FksA eq[kfcj us lwpuk tc lHkh dks nh rks bUlisDVj _f"kiky flag ugh vk;s FksA bUlisDVj _f"kiky flag ds vkus ds ckn fQj ge yksx eq[kfcj ls lwpuk izkIr djus ds ckn vkJe if)fr Ldwy ds lkeus nks thiksa ls ukS iqfyl dehZ igqaps^^ From the above, it appears, within 10 minutes, PW-6, after completing the inquest proceedings, reaches Ambedkar Park, gets information from an informer regarding the location of Nazil (the appellant), and follows it up with an encounter with Nazil (the appellant) at 9.10 pm on 22.06.2019 itself. But, information of this encounter report is entered at the police station only in the morning of 23.06.2019 at 6.18 hours. When we notice the above sequence of events and the contents of application (Ex. Ka-3) given by the informant, wherein no material is disclosed as to the basis of suspicion against Nazil (the appellant), a reasonable doubt arises as to whether the Investigating Officer to show his good work and to justify his action i.e. the alleged encounter, took the written application from Sharif (PW-1) next day, just to put his record straight so as to demonstrate that his action was not mala fide but bona fide, and a consequence of receipt of credible information with regard to Nazil's (appellant's) involvement in the crime. The haste shown in the matter of arrest is inexplicable. More so, when nothing has come on record that the accused-appellant was hiding himself or was absconding.
When we take notice of all these circumstances, coupled with the fact that for nearly 45 days the informant and his family remained silent, expressing no suspicion against Nazil's (appellant's) involvement, and then, after the encounter, all of a sudden the last seen theory emerges, renders the last seen evidence completely unreliable and unworthy of credit.
24. In addition to above, from the statement of PW-2 (Rahima), a child, during her cross examination, it appears that the police had been visiting informant's house on a daily basis to ensure that these witnesses get their statement recorded. Notably, PW-2 makes a statement, the import of which she does not know, which is, that the accused on that fateful day (i.e. the day of incident) appeared intoxicated. When she was asked about the meaning of the word intoxicated, she states that she does not know. All of this not only suggests that the police was coming on regular basis to the house of the informant to create pressure that the informant and her daughter make their deposition in court but also that PW-2 could be tutored. In addition to above, the appellant has also given a reason for his false implication, which is, that his taxi was taken by a close relative of the informant who got it involved in an accident, resulting in a fight between the appellant and that close relative of the informant, giving rise to animosity. Although these few factors on their own might not be sufficient to discredit the last seen theory but when we take a conspectus of all the circumstances and reasons recorded above, we come to a definite conclusion that the evidence of the deceased being last seen alive with the accused-appellant, on or about noon time of 07.05.2019, is not reliable and trust worthy and is liable to be discarded. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance of the deceased being last seen alive with the appellant beyond reasonable doubt.
Circumstance of Recovery
25. Now, we take up the issue whether the prosecution has been able to prove the circumstance of recovery beyond reasonable doubt. Notably, recovery of strands of hair and the bottle of oil is alleged to have been made on 28.06.2019 from the same semi-built house from where the body of deceased Zoya was recovered on 22.06.2019. Hair strands are allegedly recovered from the same Kothri from where the body was lifted and where the Inquest was held on 22.06.2019 by the first I.O. (P.W.-6) and, thereafter, on the next day i.e. 23.06.2019 the second I.O. (PW-7) prepared site plan (Ex-Ka-19). The first I.O. (PW-6) in his cross examination stated that he does not remember seeing any hair there. The second I.O. (PW-7) states in his cross-examination that though he noticed hair, cigarette butt and packet of oil on or about the site where the body was found on the upper floor but he did not consider it necessary to notice them in the site plan. Importantly, existence of any incriminating material lying on spot is not reflected in the site plan prepared by the second I.O. even though he stated that he scanned the entire first floor but not the ground floor. At this stage, it be noticed that hair of Zoya had got detached from her skeleton and therefore it could be possible that some of her hair might have been noticed by him. Be that as it may, in ordinary course, it is expected that the investigating agency would first look for incriminating material lying on the spot. It is quite unbelievable that the place from where body of a girl child is recovered, particularly, in suspicious circumstances, would not be thoroughly scanned by the I.O. to look out for incriminating material. In Mani V. State of Tamil Nadu, (2009) 17 SCC 273, a recovery was shown to have been made after 10 days from a place near to the place from where the body was recovered earlier, discarding the said recovery, in paragraph 24 of the judgment, the Supreme Court observed that it would be impossible to believe that the Inspector did not search the nearby spots and that all the articles would remain in the open, unguarded. The Supreme Court held such a recovery to be completely farce. Here also, it is completely unacceptable that the I.O. would not have scanned the place to search for incriminating material. Moreover, hair strands lying for 50 days on a floor of a vacant semi built house which has access to all and sundry and, that too, where inquest proceeding has taken place, is highly improbable, if not impossible.
26. Further, this recovery has been explained by the appellant in his statement recorded under section 313 CrPC by stating that he had been inflicted with two gun shot injuries, one on each leg, from a close range to extract his confession and to force him to sign recovery memorandum when, in fact, there was neither any disclosure made by him nor any recovery from the spot, rather, his hair were pulled to show them as hair strands recovered from the spot; and that the entire exercise is a paper work of the police to build a case against him as he was unnecessarily shot at in a false encounter. It is well settled that an explanation under section 313 CrPC, though not evidence, has to be considered by the court and if it fits in the scheme and nature of the prosecution evidence and serves as a material to create reasonable doubt in the prosecution case, it may well be accepted. In the instant case, indisputably, the prosecution admits that Nazil (the appellant) was arrested in an encounter and that he had suffered injury for which he had to be admitted in the hospital. Admittedly, that encounter was by police personnel of P.S. Civil Lines, Rampur and the recovery is also made by a team headed by PW-8 who is the Incharge Inspector of P.S. Civil Lines, Rampur though he was on leave at the time of encounter. Interestingly, in the prosecution evidence it has come that to effect recovery the appellant was brought at the spot on a stretcher, which suggests that the injury was serious and he was not in a position to walk. In these circumstances, to ensure that the exercise is free from doubt, the minimum that was required from the I.O. was to arrange for independent witnesses to comply with the provisions of sub-section (4) of section 100 CrPC so as to lend credence to the alleged recovery, which, otherwise, appeared farcical. But, interestingly, neither public witnesses were present at the time of recovery nor in the recovery memorandum it is stated that an effort to rope in public witnesses failed, as none came forward. Such a recovery therefore, in our view, is nothing but farce and no sanctity can be attached to such a recovery. More so, when the accused has put the police on the dock for the alleged encounter by stating that he was picked up from a taxi stand and was shot at on both legs from a close range to force him to confess. The defence also cross-examined the Investigating Officer in respect of the mode in which he was shot at. Thus, though the prosecution suppressed the injury report but it was clearly established on record that the appellant was seriously injured in the encounter and was immobilised. The appellant has also specifically stated in his explanation that the police framed him to save themselves from the embarrassing questions in the false encounter case. No doubt, it may not be appropriate for us to record a finding in respect of the genuineness of the encounter as that is a matter of another trial but we can always take this circumstance to doubt the recovery, particularly, when we find from the evidence on record that the police might have been under pressure to show good work because media persons had arrived at the spot when the body was recovered. This pressure on the police is also evident from the circumstance that they venture out to arrest the appellant on 22.06.2019 itself when, by that time, no credible information was available against the appellant as already noticed above while discussing the last seen circumstance.
27. In addition to above, from the testimony of PW-1 it appears that at the place from where, on 22.06.2019, the body was recovered cigarette butts and a packet of oil was noticed but neither the cigarette butt nor the packet of oil was collected. There is no seizure memorandum of that on record (at least not shown to us nor is part of the paper book); and the site plan prepared in the afternoon of the next day i.e. 23.06.2019 also does not disclose presence of any hair or of any other incriminating material on the spot. Further, it is admitted by the I.O. that earlier, though the appellant had confessed his guilt but had not made any disclosure with regard to the presence of any incriminating material on the spot. It is only when the third I.O. (PW-8) takes over, obtains permission of the court to record clarificatory statement of the appellant, who is in jail hospital, having suffered two gun shot injuries, one on each leg, the disclosure statement is allegedly recorded on 25.06.2019 with regard to the presence of hair and a bottle of oil at the place from where body has been recovered. Now, we have to test whether this disclosure statement is (a) voluntary; and (b) truthful.
28. In so far as it being voluntary is concerned, nothing much can be said, particularly, when, according to the accused, he was shot on both legs and was threatened to make disclosure or be killed. In that kind of a situation, once gun-shot injuries on the body of accused-appellant are not disputed it would be anybody's guess that, in absence of cogent evidence coming through the mouth of independent witnesses, it would be difficult to accept it as voluntary. In so far as it being truthful, that is whether it led to discovery, is concerned, importantly, except the police witnesses there is no other independent or public witness to demonstrate that such a statement was made and that it led to recovery. Thus, on the basis of such an alleged disclosure statement, where the spot from where recovery is made being already known, the Field Unit, as per PW-8 testimony, already there, and the appellant is brought there on a stretcher to lift hair strands and bottle of oil, makes the entire exercise of recovery, in absence of public or independent witness, a mock drill, unworthy of any credence. Notably, the recovery has no support from a public witness and the memorandum of the recovery does not even record that an effort was made to rope in public witness but none, despite request, came forward. Interestingly, in the statement of PW-8, it has come that an effort was made to rope in a public witness. But, this appears an after thought as recital to that effect is not there in the recovery memorandum. No doubt, a recovery cannot be discarded merely for absence of public witness but each case has to be judged on its own fact. Here, absence of public witness is detrimental to the evidence of recovery for the following reasons: (a) the recovery is from a place which is already discovered; where inquest was held and site plan was prepared but nothing incriminating was found; (b) the person on whose disclosure recovery is stated to have been made is one who has been shot at on both legs by the police giving rise to a controversial situation therefore, the burden is on the police to inspire confidence in the whole situation of recovery; and (c) in the first confessional statement allegedly recorded immediately after encounter, there is no such disclosure. Thus, one way to inspire confidence is to ensure presence of a public or independent witness to clear the doubts that shrouds the entire exercise of recovery.
29. In addition to above, a question that would naturally arise is whether it could be considered probable that a six year old girl would be able to offer so much resistance, that she would be able to pull out hair from the head of her offender. No doubt, such possibility can not be ruled out but to lend credence to such possibility, the burden is heavy on the prosecution. Here, presence of an independent/public witness might have helped the prosecution to clear the doubt whereas, absence of it renders the circumstance of recovery unworthy of acceptance, particularly, in the facts of this case.
30. There is another circumstance which renders the exercise of recovery a mock drill and strikes at the value of finger prints found on the bottle of oil recovered. Interestingly, according to the prosecution evidence, the police took the appellant to the place where he had hidden the oil bottle and allowed him to pick up the bottle and give it to the investigating officer. If the bottle of oil was allowed to be picked up by the appellant, the appearance of his finger prints on the bottle would be of no consequence. Here also, there is a deliberate attempt on the part of PW-8 to justify that, by stating that the accused picked up the bottle from its crown (cap). But that is not mentioned in the seizure memorandum. Thus, seen from any angle and for all the reasons discussed above, the circumstance of recovery of hair and bottle of oil from the spot on the disclosure statement of the appellant is not proved beyond reasonable doubt. Rather, the explanation offered by the appellant that he was forced to make a disclosure statement and his hair were pulled to show recovery appears probable and casts an insurmountable doubt on the recovery. Once the recovery is rendered doubtful, the DNA profiling report is of no consequence and so is the finger print report.
31. At this stage, we may observe that unfortunately the trial court has failed to test the reliability and credibility of the prosecution evidence and has accepted the prosecution evidence as gospel truth, which is not the requirement of law. For a proper decision in a trial, the prosecution evidence, if admissible, has to be tested on broad probabilities emerging from the facts of a case to find out whether it is reliable. Only after the evidence is tested and found reliable, that it can form the basis of conviction.
32. In the present case, we find that the prosecution evidence has failed to prove the incriminating circumstances of the deceased being last seen alive with the appellant and the recovery beyond the pale of doubt, and there is no medical / forensic evidence to demonstrate that there was presence of semen or blood stain of the appellant on the clothes of the deceased or on her body. Importantly, all orifices and organs of the body were missing hence, except for confessional statement which, being made before police, was not admissible, there was no evidence to come to the conclusion that an offence of rape was committed. As all these incriminating circumstances from which the prosecution sought to prove its case against the appellant have not been proved beyond the pale of doubt, the appellant is entitled to be acquitted.
33. We, therefore, have no hesitation in rejecting the reference for affirmation of the death sentence and in allowing the appeal of the appellant against the order of his conviction and sentence. The appeal of the appellant is allowed. The reference sent by the trial court to confirm the death penalty is rejected. The judgment and order of the trial court is set aside. The appellant is acquitted of all the charges for which he has been tried and convicted. The appellant shall be released from jail forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437-A Cr.P.C. to the satisfaction of the trial court.
34. Let a copy of this order along with the record of the court below be sent back to the court below for information and compliance.
Order Date :- 17.12.2021 AKShukla/-