Allahabad High Court
Harendra vs State Of U.P. on 8 July, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 45 Case :- CAPITAL CASES No. - 12 of 2021 Appellant :- Harendra Respondent :- State of U.P. Counsel for Appellant :- From Jail,Arun K. Singh Deshwal Counsel for Respondent :- A.G.A. WITH REFERENCE NO.09 OF 2021 Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
(Delivered by Sameer Jain,J.)
1. Harendra (the appellant) was convicted under Sections 302, 201, 376-AB IPC and Section 5(m)/6 of Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act) vide judgment and order dated 14.7.2021 and 15.7.2021 passed by Special Judge ( POCSO Act), Bulandshahar in Sessions Trial No. 625 of 2021 and has been awarded following punishment:
1. Under Section 302 IPC, death penalty with a fine of Rs. One lacs and in default additional one year simple imprisonment;
2. Under Section 201 IPC, seven years R.I.with a fine of Rs.Twenty Thousand, and in default four months simple imprisonment; and
3. Under Section 5(m)/6 of POCSO Act read with Section 376 AB IPC, death penalty.
All sentences to run concurrently.
2. As the trial court awarded death penalty to the appellant (Harendra) under Sections 302 IPC and Section 5(m)/6 of POCSO Act read with Section 376 AB IPC, it has sent a reference for confirmation of death penalty, which has been registered as Reference No.9 of 2021.
3. Against the aforesaid judgment and order, the appellant has submitted his appeal from Jail, which has been forwarded by the Superintendent of Jail, Bulandshahar vide letter dated 21.7.2021. This appeal has been registered as Capital Cases No.12 of 2021. The appellant has prayed that the judgment and order of conviction and sentence recorded by the trial court be set aside and that he be acquitted of all the charges.
4. Considering the nature of the crime, we are not disclosing the name of the victim, members of her family as well of the witnesses of that area (locality) and, therefore, wherever required, they have been described by their witness number.
5. To represent the appellant, who could not engage a private counsel, Sri Arun Kumar Singh Deshwal, Advocate has been appointed as Amicus Curiae by the High Court, Legal Aid Services Committee.
INTRODUCTORY FACTS:
6. Prosecution case, in brief, is that on 28.2.2021 at about 18.46 hours (6.46 PM) PW-1 lodged a First Information Report against the appellant under Section 363 IPC at Police Station Anoopshahar, District Bulandshahar vide Case Crime No. 104 of 2021. As per the First Information Report, on 25.2.2021, at about 4.00 PM, the daughters of PW-1, namely, PW-4, aged about 15 years, and the deceased, aged about 12 years, went along with their mother (PW-2) to fertilize their field. In the meantime, the deceased went to the house of Ram Niwas (father of appellant) to have water. When she did not return, her mother (PW-2) sent PW-4 to look for her but she (PW-4) could not find the deceased in the house of Ram Niwas though she noticed the door of the house of Ram Niwas bolted from inside. PW-2 thought that the deceased must have gone back home. But when PW-2 returned from the field after about an hour, she did not find her daughter i.e. the deceased at home. When PW-1 returned back, PW-2 narrated the entire incident to him. Immediately whereafter, PW-1 went to the house of Ram Niwas but did not find his daughter (deceased) there. By alleging that from that very day the son of Ram Niwas, namely, Harendra (appellant), is also missing, FIR was lodged by PW-1 expressing suspicion against Harendra (the appellant) that he has vanished with his daughter (deceased).
7. On 2.3.2021, an application (Ext.Ka-2) was submitted by PW-1 stating therein that on 28.2.2021 he lodged a report against Harendra (the appellant) son of Ram Niwas under Section 363 IPC at Police Station Anoopshahar on suspicion whereas, on 2.3.2021 when PW-1 along with Rajni Sadhwi, Bhola Chaudhari, Vishnu Chaudhari, Rajveer, Veerpal entered the house of Ram Niwas in search of the deceased, they found soil near the latrine freshly laid. When he stepped on it, his foot sank. Suspecting something amiss the soil was dug/removed with "a spade". They then discovered dead body of the deceased lying there. By stating as above and by claiming that the body of the deceased is lying at the spot, prayer was made for appropriate action. On this information, Police arrived at the spot, recovered the dead body from the house of Ram Niwas (father of the appellant) and prepared inquest report (Ext. Ka-6) on 2.3.2021 at about 6.00 PM; whereafter, the dead body was sent for autopsy.
8. On 2.3.2021, at about 11.14 PM, the post mortem examination of the body of deceased commenced which was concluded on 3.3.2021 at about 00.20 hours i.e. 12.20 AM.
9. As per autopsy report (Ex.Ka-5) following ante mortem injuries were found on the body of deceased;
(I) A ligature mark of size 25 cm x 2 cm present around the neck with a gap of 3 cm at back of neck. Mark present at 5cm below both ears horizontally placed above thyroid cartilage. On exploration echymosis present underneath and hyoid bone was found fractured.
According to the autopsy surgeon death was caused due to asphyxia as a result of ante mortem strangulation. The estimated time of death was six to seven days before.
10. During autopsy, Gynaecological Examination was also done. Autopsy report (Ex.Ka-5) in this regard recites as follows:
"Gynaecological Examination of Pelvical Region is done by me and two vaginal smears/slides are prepared and 1 swab is taken from vulva and one smear is taken from vagina. The pubic hair are cut and preserved. 1 comb from pubic hair is preserved and 1 comb from scalp hair is preserved. On local examination of pelvical region:- the margin of labia majora are oedematous and irregular. There is tear in labia majora at 3' 0 Clock position. Blood clot is present. The vaginal introitus is irregular in shape. The pelvical region is covered by soil and after cleaning, examination was done. The nails with scraps are preserved."
11. On 2.3.2021, the Investigating Officer prepared recovery memo (Ext.Ka-11) of the soil from the pit i.e. the place from where the body was recovered. However, the appellant was shown arrested from Chandigarh and on 3.3.2021, at about 3.30 PM, on the pointing out of the appellant, after further digging the pit from where dead body of deceased was recovered, a blue colour lower, red colour T-shirt and one pair of slipper of red colour (belonging to the deceased) and black coloured red blue T-shirt as well as grey colour lower (both belonging to the appellant) were also recovered, which, the appellant was allegedly wearing at the time of incident. In respect of this recovery, a recovery memo (Ext.Ka-12) was prepared.
12. After investigation, on 10.3.2021 charge sheet under Sections 363, 302, 201 and 376 AB, IPC and Section 5(m)/6 of POCSO Act was submitted in the Court of Special Judge (POCSO ACT)/Additional Sessions Judge, Bulandshahr.
13. On 12.3.2021, the trial court framed charges against the appellant under Sections 363, 376 AB,302, 201 IPC and Section 5(m)/6 of POCSO Act. Appellant denied all the charges and claimed trial. During trial, prosecution examined ten witnesses, PW-1, PW-2, PW-4 and PW-5 are witnesses of fact whereas rest of the prosecution witnesses are formal witnesses. After recording the statement of prosecution witnesses, trial court recorded the statement of appellant under Section 313 Cr.P.C. and after analysing the evidence on record, convicted the appellant under Sections 302, 201 and 376 AB, IPC and Section 5(m)/6 of POCSO Act.
14. We have heard Sri Arun Kumar Singh Deshwal, learned Amicus Curiae appointed by the High Court, Legal Aid Services Committee, for the appellant and Sri Amit Sinha along with Sri J.K.Upadhyaya, learned AGA, for the State, and have perused the record of the case.
SUBMISSION ON BEHALF OF THE APPELLANT
15. Learned counsel for the appellant submitted that present case is based on circumstantial evidence and there is no eye witness account of the incident. The trial court wrongly convicted the appellant in spite of the fact that the prosecution failed to prove any of the incriminating circumstances against the appellant beyond the pale of doubt. He submitted that there is no admissible evidence on the basis of which the appellant may be connected with the present crime. Further, there is no evidence of the appellant being last seen alive with the deceased. Even the recovery of the dead body allegedly from the house of appellant is self-serving and in absentia therefore, has no incriminating value.
16. Learned counsel for the appellant further submitted that the alleged disclosure in respect of recovery of clothes of the deceased and of the appellant is not admissible as the place from where these clothes were allegedly recovered had been discovered already on 2.3.2021 i.e. a day before the said recovery. He submitted that on the basis of suspicion alone, the appellant has been falsely implicated. The FSL report cannot be used against the appellant in the present case as no blood was found on the recovered clothes of the appellant and the DNA too, could not be matched.
17. Sri Deshwal, learned counsel for the appellant also submitted that the trial court wrongly interpreted the FSL Report to assume that the lower carried gene material of female origin therefore, the appellant was involved when, in fact, there was no basis to assume that the lower was of the appellant. It was thus prayed that the order of conviction be set aside.
18. Learned counsel for appellant lastly submitted that as the present case rests on circumstantial evidence, death penalty is not to be awarded.
SUBMISSION ON BEHALF OF THE STATE 19 Per contra, learned AGA submitted that this is a case where a minor girl (deceased) has been brutally murdered after rape and as her dead body was recovered from a pit situated in the house of the appellant, this by itself is sufficient to convict the appellant. Learned AGA submitted that from the testimony of PW-2, mother of deceased, and PW-4, the sister of the deceased, it was proved that the deceased went inside the house of the appellant on 26.02.2021 to have water and thereafter, she did not return. PW-1 (the father of the deceased) in his statement disclosed that on the next day i.e. on 26.2.2021, when he went to the house of the appellant, he met the appellant in his house, who appeared nervous and had scratch marks on his face and neck. Thereafter, appellant absconded from the house.
20. Learned AGA submitted that the incriminating circumstances were duly proved and constituted a chain of circumstances indicating that the appellant is the person who committed rape and murder of the deceased therefore, the trial court has rightly convicted him. Hence, the present appeal is liable to be dismissed.
21. On the question of sentence, learned AGA submitted that as the appellant committed rape of a minor girl, aged below 12 years, and brutally murdered her, the trial court rightly awarded him death penalty.
22. Having noticed the rival contentions and having perused the record, before analysing the evidence in the context of the rival contentions, it would be apposite to notice the prosecution evidence, in brief.
PROSECUTION WITNESSES:
23. PW-1 is the informant. The deceased was his daughter. According to PW-1, deceased was aged about 12 years old and use to stammer. On 25.2.2021, at about 4.00 PM, PW-1, his wife (PW-2), his daughter (deceased) and the other daughter (PW-4), all had gone to the field to sprinkle fertilizer. To have water, the deceased went to the house of Harendra (the appellant). PW-1 saw her entering the house of Harendra (appellant). When she (deceased) did not return back, PW-1's wife (PW-2) sent PW-4 to the house of Harendra (appellant). PW-4 informed that the house is locked from inside and despite call, nobody came out. PW-1's wife (PW-2) therefore thought that the deceased might have return home. But when they arrived at home, they did not find the deceased there. Consequently, they started searching for her. Next day, PW-1 along with others arrived at the house of the appellant (Harendra) and asked him whether he had seen PW-1's daughter as she had come there to have water. PW-1 stated that though the appellant denied seeing the deceased but he could not notice that there were nail scratches on the neck of the appellant. Moreover, the appellant looked nervous. PW-1 queried the appellant about his condition but the appellant did not answer. Thereafter, the appellant left his house and went away. PW-1 proved the FIR dated 28.2.2021 i.e. as Ext. Ka-1. PW-1 stated that on the second day of next month i.e. 2.3.2021 he along with 5-6 persons arrived at the house of Harendra (the appellant) in search of his daughter (the deceased). PW-1's wife (PW-2), Rajveer, Bhola, Veerpal, Rajnish, Mahesh and PW-5 also accompanied him. According to PW-1, near the latrine, the soil appeared fresh (i.e. freshly dug) and the foot sank in that soil. When they dug that place they saw dead body of the deceased lying in the pit. The dead body was naked. PW-1 stated when his daughter had gone to fetch water she was fully clothed wearing a Full Sleeve Kurti, lower, shawl and slippers and had a chain on her neck as also a clip on her hair. According to PW-1, he saw the dead body of the deceased at about 3.00 PM. Whereafter, he got a report scribed by one Bhojraj (not examined), which was thumb marked by him. The report was marked as Ext.Ka-2. PW-1 stated that he gave the report (Ext.Ka-2) at the police station at about 5.00 PM. After that the police arrived at the spot and took out the dead body and conducted inquest of which he was a witness. In his cross-examination, PW-1 stated that in the house of appellant, his brother Dharmendra, Dharmendra's wife and kids also reside. PW-1 stated that on the next day i.e. 26.2.2021 when he went to the house of Ram Niwas (father of the appellant), he met only the appellant there. PW-1 denied that he went to the house of the appellant in evening of 25.02.2021. PW-1 stated that he went to the house of the appellant in the morning of 26.2.2022. According to PW-1, Ram Niwas's house must be 5-6 Km away from the village abadi or may be a bit less. PW-1 stated that the distance between the house of appellant and the field where he along with his family members were sprinkling fertilizer is about 250 paces. PW-1 admitted that before 28.2.2021, he did not give any information at the Police Station in respect of his daughter (deceased) having gone missing. PW-1 stated that the house of the appellant would be in an area of 'one bigha'. It has high boundary walls and inside the boundary, apart from two rooms, there are two latrines also, but there is no bath room in the house. PW-1 stated that the body was noticed in that pit at about 3.00 PM. The police had arrived at about 5-5.30 PM and then the body was taken out of the pit. He denied the suggestion that body was taken out of the pit without the help of the police. PW-1, however, admitted that at the time of recovery of dead body, neither appellant nor any member of his family was present. PW-1 denied the suggestions that there is enmity between him and the family of the accused and that false recovery has been shown by planting the body there.
24. PW-2 is the mother of the deceased and wife of PW-1 (the informant). PW-2 also stated that on 25.2.2021 at about 4.00 PM she along with her husband (PW-1), elder daughter (PW-4) and younger daughter (the deceased) went to the field to sprinkle fertilizer. From there, her younger daughter (deceased) went to the house of appellant to have water. PW-2 saw the deceased entering the house of appellant. When, for about an hour, the deceased did not return, PW-2 sent PW-4 to look for her in the house of appellant. PW-2 stated that PW-4 gave calls from outside but nobody responded though the door of the house was bolted from inside. Consequently, PW-4 informed PW-2 that deceased was not there. PW-2 thought that the deceased might have returned back home. But when on reaching home, she could not find the deceased, they launched a search for her in the village but could not find her. On the next day, PW-1 went to the house of Harendra (the appellant). On return, PW-1 informed PW-2 that there was a scratch mark on the face and neck of Harendra (appellant). PW-2 stated that the appellant had absconded from the village. She stated that on 2nd, her husband (PW-1), brother-in-law (Mahesh), PW-5, Rajveer and Rajni went in search of the deceased. During search, the deceased was found in a pit inside the house of appellant of which information was received by her. On information, she arrived at the spot and saw that the dead body of her daughter was lying in the pit with no clothes on it. She stated that when her daughter had gone to sprinkle fertilizer she wore a blue coloured lower, an orange and coco cola-double coloured T-shirt and also had a chain on the neck and had worn a cotton shawl. She also wore pink coloured slippers and a clip to tie her hair.
25. In her cross-examination, PW-2 stated that her daughter (PW-4) had informed her that the deceased was not in the house of Harendra (appellant) and that the appellant was sleeping after bolting the door from inside. She was also informed by her husband (PW-1) i.e. the informant that the appellant has left the village. This information was given to her on the next day of the incident. She, however, admitted that when daughter's body was recovered, at that time, nobody was present in appellant's house and his house was locked. She denied the suggestions that she did not notice the body in that pit. She also denied the suggestion that she is taking the name of the appellant only on the basis of suspicion.
26. PW-3 is Constable Amit Chaudhary. He prepared the chik FIR of the case and proved the same as (Ext. Ka-3). PW-3 also proved the G.D. entry no. 35, dated 28.10.2021, at 18.40 hours, which was marked as Ext. Ka-4.
27. PW-4 is the elder daughter of PW-1 (the informant). She is sister of the deceased. PW-4 stated that the deceased was her younger sister. On 25.02.2021, at about 4.00 PM, PW-4 along with her parents and the deceased had gone to the field to sprinkle fertilizer. From there the deceased went to the house of Harendra (appellant) to have water. PW-4 saw the deceased entering the house of the appellant. After some time, when the deceased did not return, her mother (PW-2) told her to look out for the deceased. When she arrived at the house of appellant, she found that his house was bolted from inside and despite her calls, nobody responded, as a result, she returned back and informed her parents. Upon which, PW-2 felt that the deceased might have returned back home. But they did not find her at home. PW-4 stated that after five days she saw the body of deceased lying in a pit inside the house of Harendra in a naked condition. During her cross-examination, PW-4 stated that when she arrived at the house of appellant in search of her sister (deceased), she had pushed the door which appeared bolted from inside.
28. PW-5 is a villager. He stated that PW-1 informed him that on 25.02.2021 at about 4.00 PM deceased went to the house of the appellant to have water and she was seen entering the house of the appellant. PW-5 stated that on 02.03.2021 while they were searching for the deceased, they entered the house of the appellant. There, in the soil, feet got stuck. On being suspicious, they dug out the place and found the body of the deceased buried there. PW-5 stated that the body of the deceased was taken out from the pit then the police arrived. The police again arrived on 3rd and on the pointing out of the appellant, the clothes of the victim were recovered from the pit. PW-5 admitted that on paper no. 8A/2 there was his thumb impression. In his cross-examination, PW-5 stated that the dead body was taken out from the pit by him and Mahesh (not examined) and other villagers were also present there. According to this witness, the dead body was taken out by about 3.00 PM and the police arrived there by about 5.30-6.00 PM. PW-5 stated that paper no. 8A and 8A/2 bear his thumb impression but what is written there, he does not remember now. PW-5 stated that he could come to know about the victim having gone missing after about six days, that is on 02.03.2021. PW-5 stated that in the house of the appellant his brother, sister-in-law (bhabhi), two children and father also use to reside. PW-5 denied the suggestion that body was not found in appellant's house but was planted there.
29. Dr.Kirti PW-6 is one of the doctors in the panel of Doctors who conducted the post mortem of the body of the deceased. PW-6 conducted the Gynae-internal examination of the body. PW-6 proved the injuries recited in the autopsy report of the deceased. According to PW-6 the estimated time of death was about 6 to 7 days before and death was a result of asphyxia due to ante-mortem strangulation. On the statement of PW-6 the post mortem report was marked Ext. Ka-5. PW-6 accepted the possibility of rape of the deceased before her death. PW-6 told the Court that there was a tear in labia majora at 3 O' clock position. Blood clot was also found and that it may be a case of sexual assault.
30. PW.7-S.I. Maharaj Singh. He prepared the inquest report of the deceased on 02.03.2021. He proved the inquest report as Ext. ka-6. He also proved the documents including Chalan Nash prepared in connection with autopsy as Ext. Ka-7 to Ka-10. PW-7 stated that on 02.03.2021, the mud of the pit from where the body was recovered was lifted and sealed in separate boxes of which memo was prepared and proved as Ext. Ka-11. This witness stated that on 03.03.2021 on the pointing out of the appellant, from inside the pit from where the dead body of deceased was recovered, after digging. Further, a blue colour lower, colour T-shirt and one pair of red colour slippers of the deceased and red and black colour full sleeves T-shirt and grey colour lower of the appellant worn at the time of the incident were recovered. He prepared a recovery memo of the articles which was marked Ext. Ka-12. In his cross-examination, PW-7 stated that he was not the Investigating Officer of the present case. PW-7 stated that the accused appellant had himself dug out the clothes from the pit but if this was not written while recording his statement under Section 161 Cr.P.C then he cannot give reason for the same.
31. PW-8 S.I. Aman Singh. He is the first Investigating Officer of the case when it was registered under Section 363 IPC on 28.2.2021. He stated that he recorded the statement of PW-1 and prepared site plan at the instance of PW-1 which was marked as Ext. Ka-13. PW-8 stated that on 28.02.2021 he tried to search out the appellant but he could not get any clue. Thereafter, on 02.03.2021, the appellant house was raided but he could not be found. Later, the application moved by the informant (PW-1) was entered in the CD and Section 302 and 201 IPC were added. On addition of Sections 302 and 201 IPC investigation was taken over by Station House Officer. In his cross-examination, PW-8 stated that after the FIR, first he visited the field where PW-1 was doing agricultural work along with his wife (PW-2) and children. PW-8 stated that he visited the field on 28.02.2021 at about 3-4 PM; thereafter, he went to the house of appellant along with the informant (PW-1), where he prepared the site plan. According to PW-8, the house of appellant was not locked and a small gate was open. There he recorded the statement of PW-1. PW-8 stated that on 2.3.2021 at about 6.00 PM he received an application from PW-1 at the Police Station. After perusing the application, he added the Sections. PW-8 also stated that before 28.02.2021 he did not receive any information with regard to the incident.
32. PW-9-S.S.I. Ram Khet Singh. According to this witness, after addition of Section 302 and 201 IPC, he took over investigation of the case. After retrieving the body from the pit in the house of appellant, inquest report was prepared and at the instance of PW-1, he prepared the site plan of the place from where the dead body of the deceased was recovered. The site plant was marked Ext. Ka-14. PW-9 stated that the deceased used to study in Primary School from where her date of birth certificate was obtained which disclosed her date of birth as 04.05.2010. PW-9 stated that the photographs and the articles recovered by the field unit team from the spot were deposited. He proved the photographs which were marked material exhibits 1 to 6. According to PW-9, on the basis of information received from an informer, appellant was arrested from PGI Gate No. 2, Chandigarh and his statement was recorded in the C.D. Thereafter, the appellant was handed over to S.I. Mahraj Singh and dispatched to go to the spot. On the same day, on the pointing out of the appellant, his clothes and clothes of the deceased were recovered. On 04.03.2021, biological material was obtained for DNA profiling. On 5.3.2021, after preparation of dockets, the recovered articles were sent to FSL, Ghaziabad through Constable -Navin Kumar. PW-9 further stated that he recorded the statement of witnesses during investigation and Section 376AB IPC and Section 5(m)/6 POCSO Act were added. PW-9 stated that on 8.3.2021, Constable Naveen Kumar delivered the recovered items at FSL, Ghaziabad. Entry of its delivery was made in the C.D. On 9.3.2021, he submitted charge sheet against the appellant, which was marked Ext. Ka-15. In his cross-examination PW-9 stated that on 2.3.2021 at the time of recovery of dead body he was present at the spot. He stated that information about discovery of the body was received on 02.03. 2021 at about 5.00 PM on the R.T.Set. At that time he was at Manakpur from where he straight away went to the spot. He arrived at the spot at about 5.30 PM. He stated that within 10 minutes of his arrival at the spot, Police Force from the Police Station arrived. PW-9 stated that when he arrived at the spot, the dead body was in the pit. He denied that by the time he reached the spot, the villagers had taken out the body from the pit. PW-9 stated that after arrest, the entry of appellant at the police station was made on 3.3.2021 at 14:51 hours (2:51 pm). PW-9 proved the fact that all the photographs taken by the field unit were of the house of appellant which were marked as material Ext. Ka 1 to 6. He, however, admitted that in the photograph no mark of the house is visible . PW-9 denied the suggestion that body was not recovered from the house of the appellant.
33. PW-10 Raj Kumar Singh Raghav is the Principal of the Primary School where the victim studied. This witness proved the date of birth of the deceased as 4.5.2010. PW-10 proved the photo copy of the Scholar Register and the Transfer Certificate of the deceased which were marked as Ext. Ka-16 and Ka-17, respectively.
ANALYSIS
34. The present case rests on circumstantial evidence. There is no eye witness account of either rape or murder. The law with regard to conviction on the basis of circumstantial evidence is now settled. The Supreme Court in the case of Sarad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 reiterated the legal principles in that regard as follows:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made :
"Certainly, it is a primary principle 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."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion ` consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. "
35. The above principles have been recently discussed and followed by a three Judges Bench of the Apex Court in the case of Pappu Vs. The State of Uttar Pradesh 2022 Live Law (SC) 144.
36. Summarising these legal principles, in Lochan Shrivas Vs. The State of Chhattisgarh, Manu/SC/1252./2021, a three Judge Bench of the Supreme Court, in para-14, observed as under:
"14. It is thus clear that for resting a conviction in the case of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. 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. There must be a chain of evidence so 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 probabilities, the act must have been done by the accused."
37. Bearing these legal principles in mind, we shall now evaluate the evidence of the case in hand. In the present case, the prosecution has relied upon the following circumstances:-
(I) On 25.2.2021 at about 4 PM the deceased entered the house of the appellant and was not seen alive thereafter.
(II) On 26.2.2021 PW-1 (father of the deceased) went to the house of the appellant to enquire about his missing daughter (the deceased) where he met the appellant. At that time though the appellant denied having any knowledge about informant's daughter but he noticed the appellant was nervous and having scratch marks on his neck.
(III) That except the appellant no other family member was present in the house on 26.02.2021 and, thereafter, the appellant left the hosue.
(IV) That on 2.3.2021, at about 3.00 PM, PW-1 (father of the deceased), accidentally, during search, found the dead body of his daughter (deceased) buried in a pit inside the house of the appellant.
(V) Upon receipt of information from PW-1, on 2.3.2021 the dead body was taken out from the pit by the Police and after inquest, autopsy was conducted on 03.03.2021, which suggested that the deceased was subjected to sexual assault and killed. The cause of death was due to asphyxia as a result of ante-mortem strangulation and the death was estimated to have occurred 6-7 days before, which coincides with the date of entry of the deceased in that house. Further, in the FSL Report presence of blood in the soil was found though its origin could not be confirmed due to disintegration.
(VI) On 3.3.2021 the appellant was arrested and on his disclosure statement, clothes of appellant and deceased, alleged to have been worn at the time of incident, were recovered from that pit where the dead body of the deceased was found, after digging further.
(VII) FSL report shows presence of human sperm on the underwear, lower and a used condom recovered from the spot by the field unit team.
(VIII) As per FSL report, male allele presence was found on vaginal slide, vaginal swab,vulval swab, piece of cloth plus hair of the victim and the DNA of the Hair +comb of the victim matched with the biological material found present in the lower and it was of female origin.
FIRST CIRCUMSTANCE RELIED BY PROSECUTION.
38. PW-1, father of the deceased, PW-2- mother of the deceased, and PW-4 (elder sister of the deceased) in their testimony stated that on 25.2.2021 at about 4.00 PM deceased entered the house of appellant to have water and thereafter she could not be traced and on 2.3.2021 her body was dug out from a pit inside the house of appellant. Although PW-1 in his examination-in-chief stated that he had also witnessed the deceased entering the house of appellant but in his cross-examination PW-1 stated that when he returned home at about 6.00 PM, his wife (PW-2) had informed him about the deceased going there and then, on the next day, he visited the house of appellant. Thus, the testimony of PW-1 that he also witnessed the victim entering the house of appellant on 25.2.2021 at about 4.00 PM appears doubtful.
39. However, the testimony of PW-2, the mother of the deceased, and PW-4, elder sister of the deceased, is consistent with regard to the deceased entering the house of the appellant on 25.2.2021 at about 4.00 PM to have water. According to PW-2 and PW-4, they saw the deceased entering the house of appellant. During cross-examination no suggestion was put to either of the two witnesses, namely, PW-2 and PW-4, that they did not witness the deceased entering the house of appellant. Therefore, the fact that on 25.2.2021, at about 4.00 PM, deceased entered the house of appellant has been proved by the prosecution beyond reasonable doubt.
SECOND CIRCUMSTANCE RELIED BY PROSECUTION.
40. PW-1 (father of the deceased) stated that on 26.2.2021 he visited the house of appellant to enquire about the deceased. He then met the appellant at his house. When he enquired about his daughter (the deceased), the appellant did not provide any information but appeared nervous and he left his house thereafter. PW-1 further stated that he noticed scratch marks on the neck of the appellant. Notably, no suggestion was put to this witness that there were no scratch marks or that the witness is telling lies in respect of the presence of scratch marks. Further, there is no suggestion to this witness that he did not visit the house of the appellant on 26.02.2022 or that on 26.02.2022 he did not meet the appellant in that house. Therefore, in our view, PW-1 proved beyond reasonable doubt the presence of the appellant at his house on 26.2.2021 and that when he met the appellant, PW-1 noticed scratch marks on the neck of the appellant.
41. At this stage, we may notice the submission of learned counsel for the appellant. He submitted that in the FIR it is specifically mentioned that on 25.2.2021 PW-1 went to the house of appellant and could not find him and since 25.2.2021 appellant is untraceable. It was argued that this statement in the FIR, which was lodged on 28.02.2021, is at variance with the statement in Court that on 26.2.2021 he went to the house of appellant and met him therefore it cannot be accepted.
42. In this regard, we may observe that the law is settled that an FIR is not a substantive piece of evidence unless it falls in any of the specified categories. Ordinarily, it can be used either to corroborate or contradict its maker. (See. Pandurang Chandrakant Mhatre and others Vs. State of Maharashtra (2009) 10 SCC 773).
43. In the present case, during cross-examination, PW-1 was not confronted with the contents of the FIR. Therefore, in our view, averments in the FIR cannot be taken into consideration as the Court can only consider the substantive evidence. In the present case, during cross-examination of PW-1, no attempt was made to confront PW-1 with the averments made in the FIR so as to demonstrate that he did not visit the house of appellant on 26.2.2021. In this view of the matter, in our view, the uncontradicted testimony of PW-1 would have to be believed. We are therefore of the view that the second circumstance relied by the prosecution that on 26.2.2021 PW-1 met the appellant at his house with scratch marks on his neck, is duly proved.
44. To create a doubt with regard to the testimony of PW-1, it was also contended by the learned counsel for the appellant that if PW-1, the informant, met the appellant at his house on 26.2.2021 and had noticed scratch marks on his neck then why the FIR was not lodged by PW-1 before 28.2.2021. It was urged that as the FIR is delayed and PW-1 has offered no explanation with regard to the delay, the testimony of PW-1 is unworthy of credit.
45. In this regard we may observe that the law in respect of delay in lodging the FIR is settled too. In cases like the present one, where a minor daughter has gone missing, the delay of three days is not very material because the family members of a missing girl to hide shame and probing questions, before making their grievance public, make all out effort to trace out the missing girl. It is only when they become helpless that they take recourse to legal process. Therefore, in such cases, the delay in lodging the FIR is not fatal to the prosecution case.
46. Otherwise also, where there is no plausible reason for false implication, delay in setting the law into motion is ordinarily to be condoned. In this regard we may profit from the observations of the Apex Court in the case of P. Rajgopal and others Vs. The State of Tamil Nadu (2019) 5 SCC where, in paragraph-12, a three-judge Bench of the Supreme Court, it was observed :
"12. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely."
47. In the present cae, notably, the defence did not even suggest existence of any kind of enmity of the informant (PW-1) or his family with the appellant. Therefore, there was no occasion for PW-1 to falsely implicate the appellant. Further, PW-1 stated that he had been searching for his daughter (deceased) but when his efforts could not bear fruit, he lodged the FIR on 28.2.2021. Under these circumstances, in our view, three days delay in lodging the FIR is natural and is not such which may render the prosecution version untrustworthy or make it look contrived.
CIRCUMSTANCE NO.3.
48. Learned counsel for the appellant submitted that as the gate of the house of appellant was open and was accessible to all and, further, the evidence of PW-1 and PW-5 would suggest that in that house appellant's brother and his family also resided, the recovery of the dead body from a pit inside the house, cannot be considered a clinching circumstance against the appellant. In this regard, we find that though in the testimony of PW-1 and PW-5 it has come that in the house of appellant, his brother and his family also resided but there is no evidence that on 25.2.2021 or till the date of recovery of dead body i.e. 2.3.2021, the brother of the appellant or his family was present in the house. Further, in his statement under Section 313 Cr.P.C. the appellant did not even state that on 25.2.2021 or on 26.2.2021 he was not present in that house or on those dates his brother and/or his family members were present. Rather, in this statement under Section 313 Cr.P.C., he admitted his presence in that house on 1.3.2021. It is not his case that he was elsewhere and returned on 01.03.2021. Further, there is evidence of PW-1 that on 26.2.2021 the appellant was present in that house. In fact, PW-4, elder sister of deceased, also stated that when on 25.2.2021 she went to the house of the appellant to look for the deceased, she noticed that the door of the house was bolted from inside. In our view, since the presence of the appellant in that house on 26.2.2021 is proved by PW-1 and the appellant has not denied his presence in that house on 25.2.2021 or 26.2.2021 and in fact admitted his presence in that house on 1.3.2021, in absence of any evidence or explanation that he was not present in the house on 25.2.2021, it can safely be inferred that on 25.2.2021, at about 4.00 PM, when the deceased entered the house of appellant, he was present in that house and as there is no evidence that his other family members were also present in that house, no benefit can be extended to the appellant on the basis of the testimony of prosecution witnesses that others also resided in that house.
CIRCUMSTANCES NOS. 4 AND 5 RELIED BY PROSECUTION
49. Testimony of PW-1 and PW-5 shows that on 2.3.2021 at about 3.00 PM the dead body of the deceased was found buried in a pit inside the house of appellant and on the information furnished by PW-1, Police arrived at the spot and took out the dead body from that pit on 2.3.2021. The prosecution heavily relies on this circumstance as a clinching circumstance pointing towards the guilt of the appellant. Although, during cross-examination, both the witnesses, namely, PW-1 and PW-5, were given suggestion that the dead body was planted in the house of the appellant but both the witnesses denied the suggestion. Nothing was suggested to those witnesses and nothing could come out from their cross-examination to impute motive to them to make false accusations against the appellant. In our view, therefore, the testimony of PW-1 and PW-5 proves that the dead body of the deceased was discovered by PW-1 and PW-5 on 2.3.2021 buried in a pit inside the house of appellant and on the same day i.e., 2.3.2021 Police on the information furnished by PW-1 took out the dead body of the deceased from that pit.
50. Even PW-2 (mother of the deceased) and PW-4 (elder sister of the deceased) though are not witnesses of discovery of the dead body but they proved that on receipt of information they arrived at the house of appellant and saw the dead body of the deceased lying in the pit in a naked condition. The statement of Police Personnel Maharaj Singh (PW-7), the SI, who conducted the inquest proceeding, and Ram Khet Singh (PW-9), the Investigating Officer of the case, also proves that the dead body of the deceased was recovered on 2.3.2021 from a pit inside the house of appellant on the information given by PW-1.
51. We may also notice here that it is not the case of appellant that the dead body of the deceased was not recovered from his house. Rather, suggestions were put to PW-1 and PW-5 that the dead body was planted in his house. It is therefore established beyond doubt that the dead body was recovered from a pit situated inside the house of appellant. Since the appellant could not suggest any kind of enmity of the prosecution witnesses with him, we reject the defence plea that the dead body was brought from some where else and planted in the house of the appellant. Thus, in our considered view, prosecution has successfully proved that dead body of the deceased was discovered by PW-1 and PW-5 on 2.3.2021, at about 3.00 PM, in a pit situated in the house of appellant and, whereafter, the Police took it out from the pit on the same day and carried out inquest proceeding on the spot.
CIRCUMSTANCE NO.6 RELIED BY PROSECUTION.
52. The next circumstance relied by the prosecution is that on 3.3.2021 at about 15.30 hours (3.30 PM) the clothes of appellant and deceased, alleged to have been worn by them at the time of incident, were recovered from the pit at the instance of the appellant. Statement of Ram Khet Singh (PW-9)(the Investigating Officer) shows that the appellant was arrested from PGI Gate No.2, Chandigarh. Surprisingly, PW-9 did not disclose the date and time of arrest of the appellant. In his cross-examination, PW-9 stated that the entry of the appellant at the Police Station was made on 3.3.2021 at 14.51 hours (2.51 PM). PW-9 neither produced nor proved the G.D. entry of arrest and entry of the appellant at the Police Station. Prosecution did not even produce the arrest memo regarding the arrest of the appellant from Chandigarh. PW-9 in his testimony did not even state that he arrested the appellant. He only stated that on 3.3.3021 at 14.51 hours the entry of appellant at Police Station was made. All of this would suggest that PW-9 did not arrest the appellant. Rather, his arrest was made by some other officer. Therefore, in our view, prosecution has failed to prove the date, time and place of arrest of the appellant.
53. This aspect of the matter may be examined from another angle. According, to the prosecution, the appellant was arrested at Chandigarh. If it is so, it becomes an inter-state arrest therefore, it was necessary for the officer concerned to follow the guidelines issued by Courts from time to time in respect of such arrests. In the case of Sandeep Kumar vs. The State (Govt. of NCT of Delhi) and others i.e. Writ Petition (Criminal) No.2189 of 2018, decided on 12.12.2019), a Division Bench of Delhi High Court, approving the report of a Committee in respect of Protocol to be followed in respect of inter-state arrest, observed as under:
"15. The Committee has, after examining all of the above material in detail, given detailed suggestions as to the protocol to be followed by the police in the event of inter-state arrest. These read as under:
"1. The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
2. In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit other State without getting arrest/search warrants.
3. Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
4. If the possible arrestee is a female, a lady police officer be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
5. Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
6. After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and co-operation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
7. After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
8. The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
9. While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim's name be also indicated.
10. Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
11. The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314)
12. Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon'ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
13. In terms of S. 41C, control rooms be established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. Control Room at State level must collect details of the persons so arrested.
14. The police officer must record all the proceedings conducted by him at the spot and prepare an 'arrest memo' indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
15. Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family member would be able to arrange legal assistance for him.
16. The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
17. On arrival at the police station, the police officer must make an arrival entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
18. The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-fide belief. He cannot take shelter under another person's belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-fide. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
19. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
20. The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
21. The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicle should be used for transportation to the extent possible.
22. At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
23. In case where the police officer finds the victim/prosecutrix to be a 'minor', soon after recovery, she should be produced before the local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
24. Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
25. MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
26. The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
27. The MHA/State Government should circulate the Rules/Guidelines/Notifications etc from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
28. Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
29. The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability."
54. In the present case, the arrest of appellant was made in a most casual and cursory manner without following due procedure. It is not disclosed as to what time and by whom the appellant was arrested. Further, there is nothing on record to show whether, before and after the arrest, any information was provided to local authorities of Chandigarh Administration or not. Even an arrest memo was not prepared. Thus, in view of the law laid down by Supreme Court in the case of D.K.Basu Vs. Union of India (1997) 1 SCC 416 and Division Bench of Delhi High Court in the case of Sandeep Kumar (supra), the arrest of the appellant appears to be illegal.
55. In the case of Rammi alias Rameshar Vs. State of M.P.(1999) 8 SCC 649, the Apex Court declined to place reliance on the information furnished by the accused as being basis of the recovery as there appeared material discrepancy between the testimony of the eye witnesses and the I.O. regarding the time when the accused was taken into custody.
56. In the present case, as there is no clear evidence as to when and from where the accused-appellant was arrested whereas the place from where the recovery of clothes etc. was made was already a dug out pit, we are not inclined to accept the information provided by the appellant as the basis of the recovery alleged or that it was made on the pointing out of the appellant.
57. Further, since the recovery of clothes of appellant and deceased was allegedly made on 3.3.2021 from the same pit from where a day before( i.e. on 2.3.2021), dead body of the deceased was recovered, in our view, the evidence that it was recovered at the instance of the appellant is not worthy of acceptance.
CIRCUMSTANCE NO.7 AND 8 RELIED BY PROSECUTION:
58. The next circumstance relied by the prosecution are the FSL reports which show presence of human sperm on the underwear, lower and used condom recovered by the field unit team. The other FSL report relied is in resect of presence male allele found on vaginal slide, vaginal swab, piece of cloth plus hair of the victim. There is also FSL report with regard to the DNA match of the biological material found on the lower with that of the deceased. In so far as presence of human sperm in condom, lower and under wear is concerned, there is no satisfactory evidence as to whose garments or used condom they were. Further, there is no DNA match report that the sperm had origin in the appellant. Notably, the prosecution does not dispute that in the past other family members resided there. Therefore, in our view , the same is not a clinching circumstance as against the appellant. In so far as presence of male allele on vaginal slide, swab, etc. are concerned even though a DNA match may not have proved that it related to the appellant but it does corroborate the medical report in respect of rape of the victim. In so far as DNA of the biological material found on the lower matching with the deceased is concerned, it cannot be taken as a clinching circumstance against the appellant as it has not been proved satisfactorily that it was appellant's lower and nobody else's.
AGE OF THE DECEASED
59. According to PW-1 (father of the deceased) and PW-2 (mother of the deceased), the deceased was below 12 years of age. During cross-examination, accused-appellant did not contradict the age of the deceased as given by her parents (PW-1 and PW-2). Raj Kumar Singh Raghav (PW-10), the Principal of Primary School, Siraura, Anoopshahar, District Bulandshahar, where the deceased was a student of Class-V, on the basis of record, proved the date of birth of the deceased as 4.5.2010. PW-10 produced the transfer certificate of the deceased issued by the School which was marked Ext. Ka-17. The prosecution thus succeeded in proving that the deceased was a student of Class-V and her date of birth is 4.5.2010. As the date of incident is 25.2.2021, therefore, at the time of incident the age of the deceased would be around 10 years 9 months 21 days. We therefore hold that the deceased was below the age of 12 years on the date of the incident.
DOCTOR'S TESTIMONY
60. According to the Doctor Kirti (PW-6), who proved the post mortem report of the deceased and also did her gynaecological examination, there was tear in labia majora of the deceased at 3 0' Clock position and blood had clotted. PW-6 stated that margin of labia majora was edematous. During cross-examination, PW-6 (Dr. Kirti) accepted the possibility of rape of the deceased. On a question put by the Court, PW-6 stated that the deceased might have been subjected to sexual assault. Further, the presence of allele of male origin in the vaginal smear slide and swab confirm that the deceased was sexually assaulted. We are therefore of the view that before her murder the deceased was subjected to penetrative sexual assault.
61. From the discussion made above, following facts emerge:
(a) On 25.2.2021 at about 4.00 PM deceased entered the house of the appellant to have water and was not seen alive thereafter. Later, on 2.3.2021 her dead body, in a naked condition, was found buried in a pit inside the house of the appellant.
(b) On 25.2.2021 and 26.2.2021 appellant was present in that house and except the appellant, no other member of his family was present in that house on 25.2.2021 and 26.2.2021.
(c) On 26.2.2021, the appellant was noticed in that house by PW-1 with a scratch mark on his neck. Upon query about the girl (the deceased), the appellant appeared nervous and thereafter he escaped.
(d) On 02.03.2021, the body of the deceased was dug out from a pit inside the house. The loose surface of the soil suggested that the pit was recently dug to bury the body.
(e) The autopsy and medical evidence confirmed rape and murder of the deceased on or about 6 to 7 days before the autopsy (i.e. 02.03.2021) which suggests that the deceased was raped and murdered on or about 25.02.202, that is the day when she entered the house of the appellant to have water.
(f) The appellant gave no explanation either in respect of recovery of the body from his house or in respect of involvement of any other person. He also did not deny his presence in the house on 25.02.2021 or on 26.02.2021. The appellant also gave no explanation as to the reason for his implication or about his enmity with the prosecution witnesses so as to demonstrate that it is a case of false implication.
62. When all the above-mentioned proven circumstances are put together, in our view, they form a chain of circumstances so complete that they conclusively point towards the guilt of the appellant and rule out any other hypothesis consistent with his innocence. Thus, in our considered view, the only conclusion hypothesis that can be drawn from these proven circumstance is that it was the appellant who, after committing rape of the deceased, committed her murder and hid her dead body by burying it in a pit of his house.
OFFENCE UNDER POCSO ACT.
63. Penetrative sexual assault is defined in Section 3 of POCSO Act, which runs as follows:
"3. Penetrative sexual assault.-A person is said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
63. As we have found the deceased to be a child within the meaning of Section 2 (I)(d) of POCSO Act, the appellant is held guilty of the offence of penetrative sexual assault of a child. According to Section 5(m) of POCSO Act, whoever commits penetrative sexual assault on a child below 12 years then he will be deemed to commit an offence of aggravated penetrative sexual assault and would be punished under Section 6 of POCSO Act. In the present case, the post mortem report (Ext.Ka-5 of the deceased) and statement of Dr. Kirti (PW-6) clearly suggests that the death of the deceased was committed by strangulation and she was subjected to sexual assault. The condition of vagina and labia majora (tear at 3 0'Clock) as well as presence of male allele in the vaginal smear and vaginal swab of the deceased clearly suggests that the accused committed penetrative sexual assault on the deceased before her murder and as the age of the girl (the deceased) was below 12 years, the appellant committed the offence of aggravated penetrative sexual assault punishable under Section 6 of POCSO Act.
64. As there was rape of woman below 12 years of age, Section 376-AB IPC also gets attracted. Section 376-AB IPC reads as under:
"376-AB. Punishment for rape on woman under twelve years of age.--Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim."
65. Thus, in our considered view, trial court rightly convicted the appellant under Sections 302, 376 AB, 201 IPC and Section 6 POCSO Act but as there was no commission of offence of kidnapping inasmuch as the deceased on her own entered the house of the appellant, the trial court rightly acquitted him of the charge of offence punishable under Section 363 IPC.
66. As we uphold the conviction of appellant both under Section 376 AB IPC and Section 6 of POCSO Act, under Section 42 of POCSO Act, the appellant may either be punished under Section 6 of POCSO Act or under Section 376 AB IPC , dependent on which one provides for greater punishment.
67. According to Section 42 of the POCSO Act, if an accused is found guilty of an offence punishable under Section 376-AB IPC and also under the provisions of POCSO Act, he is to be punished either under POCSO Act or under IPC, whichever provides greater punishment. Section 42 of POCSO Act is extracted below:
"42. Alternate punishment.-Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, ** [376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], ***376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree."
68. From a bare reading Section 42 of the POCSO Act it is clear the appellant may be punished either under Section 6 of POCSO Act (punishment for aggravated penetrative sexual assault) or under Section 376-AB IPC, dependent on whichever provides for a greater punishment.
69. Punishment for aggravated penetrative sexual assault has been provided under Section 6 of POCSO Act as follows:
"6. (1)Punishment for aggravated penetrative sexual assault.--Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section(1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."
70. A comparative reading of Section 6 of POCSO Act and Section 376-AB of IPC would reveal that the punishment provided therein is at par with each other . Under both the Sections, the minimum sentence is 20 years which may be extended to imprisonment for life, which means remainder of offender's natural life, and with fine or with death.
71. As the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a Special Act, in our view, if the punishment provided under POCSO Act and the Indian Penal Code is the same then being a Special Act, it would be appropriate that the accused is punished under the provisions of POCSO Act. We therefore hold that the appellant is to be sentenced under Section 6 of POCSO Act instead of Section 376-AB IPC in addition to other offences for which he has been held guilty.
QUESTION OF SENTENCE:
72. The present case is based on circumstantial evidence. Though learned counsel for the appellant vehemently argued that in a case based on circumstantial evidence death penalty should not be awarded but the law is now settled that even a case based on circumstantial evidence, death penalty can be awarded. In the case of Sudam alias Rahul Kaniram Jadhav Vs. State of Maharashtra reported in (2019) 9 SCC 388, a three-Juge Bench of the Supreme Court in paragraph 19.1 observed as under:
"At this juncture, it must be noted that though it may be a relevant consideration in sentencing that the evidence in a given case is circumstantial in nature, there is no bar on the award of the death sentence in cases based upon such evidence (see Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288; Ramesh v. State of Rajasthan, (2011) 3 SCC 685)."
Similar view has been reiterated in another three-judge Bench decision of the Supreme Court in the case of Shatrughan Baban Meshram Vs. State of Maharashtra, (2021) SCC 596.
73. In view of the decisions noticed above, we find no force in the argument advanced by learned defence counsel that the appellant cannot be awarded death penalty as the case is based on circumstantial evidence.
74. Now we shall consider whether it is a case in which death penalty is warranted or not ?.
75. It is settled that the death penalty is an exception and it can only be awarded in the rarest of rare cases. The Constitution Bench of the Apex Court in the case of Bachan Singh Vs. State of Punjab reported in 1980 (2) SCC 684 took notice of certain aggravating circumstances on the basis of which death penalty may be awarded. These were as follows:
"202. xxxxxxxxxxxxxxxxxxx, Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if. the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
Thereafter, in paragraph 204, it took notice of certain mitigating circumstances on the basis of which death penalty may be commuted to imprisonment for life. These were as follows:
"204. xxxxxxxxxx Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct."
In Shatrughan Baban Meshram's case (supra), the Supreme Court observed that while awarding death sentence, the mitigating and the aggravating circumstances have to be balanced but in the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play.
76. In the present case, the aggravating circumstances against the appellant are:
(i) The appellant committed rape and murder of a minor girl aged below 12 years.
(ii) The deceased was not only a minor girl, below 12 years, but was not totally fit as she used to stammer.
(iii) The appellant exploited the situation of deceased entering the house for water.
(iv) After committing the rape and murder, the appellant buried the body in a pit inside his house to remove the evidence of crime.
77. The mitigating circumstances in favour of the appellant are as follows:
(i) The appellant is a young man aged about 26 years.
(ii) He is not a habitual offender and there is no other case to his credit except the present one.
(iii)There are chances of him being reformed as there is no material on record to suggest that the appellant cannot be reformed or that he is likely to commit offence of the nature under consideration in their appeal.
78. A perusal of the impugned judgement would reflect that the trial court did not consider the mitigating circumstances in favour of appellant while awarding death penalty. Trial court merely considered the aggravating circumstances while awarding death penalty to the appellant. The trial court convicted the appellant on 14.7.2021 and next day i.e. 15.7.2021 awarded him death penalty.
79. Recently, in Pappu Vs. The State of Uttar Pradesh (supra) a three-Judge Bench of the Apex Court deprecated such practice while observing as under:
"42. It could at once be noticed that both the Trial Court as also the High Court have taken the abhorrent nature of crime alone to be the decisive factor for awarding death sentence in the present case. As noticed, the Trial Court convicted the appellant on 07.12.2016 and on the next day, proceeded to award the sentence. The impugned sentencing order of the Trial Court does not indicate if the appellant was extended reasonable opportunity to make out a case of mitigating circumstances by bringing relevant material on record. The sentencing order also fails to satisfy if the Trial Court consciously pondered over the mitigating factors before finding it to be a ''rarest of rare' case. The approach of the Trial Court had been that the accused-appellant was about 33-34 years of age at the time of occurrence and was supposed to be sensible. The Trial Court would observe that ''if such heinous crime is committed by him, it is not justifiable to show any sort of mercy in the punishment.' The High Court though has made rather intense comments on the menace of rape and brutal murder of children as also on the society's abhorrence of such crime but has, thereafter, proceeded to confirm the death sentence with a cursory observation that there were no substantial mitigating factors and the aggravating circumstances were aplenty.
42.1. In other words, the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature. The tests and the norms laid down in the relevant decisions commencing from those in Bachan Singh (supra) seem not to have acquired the requisite attention of the Trial Court and the High Court. It would have been immensely useful and pertinent if the High Court, while taking up the question of confirmation of death sentence and making several comments in regard to the abhorrent nature of crime and its repulsive impact on society, would have also given due consideration to the equally relevant aspect pertaining to mitigating factors before arriving at a conclusion that option of any other punishment than the capital one was foreclosed. The approach of the Trial Court and the High Court in this matter while awarding sentence could only be disapproved; and we do so in no uncertain terms."
80. In the present case, no doubt the offence committed by the appellant was henious in nature and the manner in which it was committed shows depravity but at the same time it is noticed that appellant is a young man with no criminal antecedents and there is nothing on record to rule out the possibility of his reformation and rehabilitation, in our view, therefore, it would be just and proper to award him life imprisonment instead of death sentence. Accordingly, we commute the death penalty awarded by trial court to life imprisonment.
81. The present appeal is thus allowed in part. The death sentence awarded to the appellant is commuted to life imprisonment. The reference to confirm the death penalty is answered in negative. We modify the sentence awarded by the trial court to the appellant under Section 302 IPC and Section 6 of POCSO Act, as follows:
(a)Life imprisonment under Section 302 IPC.
(b)Life imprisonment under Section 6 POCSO Act.
82. Subject to above, the other sentences awarded to the appellant by the trial court including the amount of fine and default sentence will remain intact. The sentence and punishment awarded to appellant under Section 201 IPC is confirmed.
83. Let a copy of this order/judgment and the original record of the lower court be transmitted to the trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.
Order Date :- 8.7.2022/SKM