Allahabad High Court
Virendra Baghel 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. - 15 of 2021 Reference No. 12 of 2021 Appellant :- Virendra Baghel Respondent :- State of U.P. Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
(Delivered by Sameer Jain,J)
1. The appellant (Virendra Baghel) has been convicted under Section 302, 201, 363, 376AB IPC and 3(2)(V) SC/ST Act vide judgment and order dated 17.09.2021/18.09.2021 passed by Additional District and Sessions Judge/ Additional Special Judge, POCSO Act Court No.1, Firozabad in P.S.T. No. 1730 of 2019 (State of U.P. Vs. Virendra Baghel) and has been awarded following punishment:-
(i) death penalty under Section 302 IPC and 376AB IPC read with Section 3(2)(V) SC/ST Act
(ii) 7 years R.I. with fine of Rs. 5,000/- and in default one month additional imprisonment under Section 201 IPC and 363 IPC
2. As for offences punishable under Section 302, 376 AB IPC, read with Section 3(2)(V) SC/ST Act, capital sentence has been awarded, the court below has sent a reference for confirmation of death penalty, which has been registered as Reference No. 12 of 2021..
3. The appellant has also submitted his appeal from jail against the aforesaid judgment and order, which has been forwarded by the Superintendent (Jail), Firozabad vide letter dated 23.09.2021. The same has been registered as Capital Case No. 15 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 the charges.
4. To represent the appellant, who could not engage a private counsel, Sri Dilip Kumar, learned Senior Counsel, was appointed as Amicus Curiae.
5. 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.
Introductory facts
6. The prosecution story in a nutshell is that an FIR was lodged by PW-1 on 26.04.2019, at about 6.10 hours at Police Station Linepar, District Firozabad, under Section 363 IPC, against unknown person, which was registered as Case Crime No. 61 of 2019. As per the FIR, on 25.04.2019, at about 11.00 AM, the deceased (i.e. daughter of the informant-PW-1), aged about 11 years, had gone missing. The FIR neither named any suspect nor disclosed where the girl could have gone yet, without any basis it was registered under Section 363 IPC.
7. On 26.04.2019, at about 13.16 hours, an information is received by Police Station Basaipur Mohamadpur, Firozabad that dead body of a lady is lying in Gram Sofipur behind the shop of Barashree in a burnt condition. This information is entered as G.D. Entry No. 20 at 13.16 hours on 26.04.2019 whereafter S.I. Sahab Singh (PW-10) arrived at the spot and prepared the inquest report (Ext. Ka-13), by about 16.30 hours. By the time the inquest report was prepared, the identity of the body could not be established. Therefore, inquest proceeding was conducted in respect of an unknown body of a girl aged about 13 years.
8. On 27.04.2019 family members of the deceased identified the dead body as to connect it with the missing girl referred to in Case Crime No. 61 of 2019 (supra).
9. The autopsy of the body was conducted on 27.04.2019 at about 3.30 PM. As per autopsy report (Ext. Ka-4) the body was in a decomposed condition, rigor mortis had passed all over the body and the skin had peeled off at places. The autopsy surgeon found following ante mortem injuries:-
1. Fracture of Nasal Bone and mandible, skin and muscles absent.
2. Fracture right radious and ulna lower part, right palm missing, skin and muscle absent, bone exposed of whole right upper limb
3. Depressed fracture of left tempo parietal, skin absent, bone exposed.
4. Contusion 8cm X 4cm upper part of chest, right of midlime
5. Abraded contusion 18cm X 3cm on back of chest Note:- Skin and muscle missing at places (face, scalp, right upper limb).
Genital Organs (vagina) found lacerated. Uterus was non gravid. Vaginal smear slide was prepared and sent for examination.
10. As per autopsy report, death occurred about two days before due to shock and haemorrhage as a result of ante mortem injuries. After autopsy, a sealed bundle of clothes i.e. Salwar, Kurta and one pair of Payal was handed over to police.
11. On 28.04.2019, the appellant was arrested regarding which, an arrest memo (Ext. Ka-10) was prepared and, on his pointing out, four bloodstained bricks and one pair of black colour Chappal (slipper) of the deceased were recovered from the spot on 28.04.2019. Investigating Officer also lifted bloodstained and plain earth from the spot and prepared the recovery memo (Ext. Ka-14). Recovery memo of slipper of deceased is Ext. Ka-15 and recovery memo of bloodstained bricks is Ext. Ka-16. On 28.04.2019, Investigating Officer also seized Jeans (pant) of the appellant which he allegedly wore at the time of the incident and was wearing at the time of arrest. In this regard a seizure memo (Ext. Ka-17) was prepared. The jeans (pant) of the appellant was seized to find out whether it carried semen stain. During investigation, Top, Kurta, one pair Payal, bloodstained and plain earth, Bricks, Jeans (pant of appellant), Vaginal smear and nail clippings of the victim were sent to Forensic Lab, Agra, U.P. Forensic Lab Report, dated 15.06.2019, was forwarded to C.O. Sadar, Firozabad. As per Forensic report, dated 15.06.2019, on all the items blood was found. On item nos. 1 (Top), 2 (Kurta), 4 (earth piece), 5, 6 (Bricks), 7 (Jeans Pant) and 8 (Vaginal smear) human blood was found. On item no. 8 (vaginal smear) blood/sperm of human origin was found. No sperm could be found on Jeans Pant.
12. After investigation, Investigating Officer submitted charge-sheet against the appellant under Sections 363, 302, 376AB, 201 IPC and Section 3(2)(V) SC/ST Act and 5(m) POCSO Act. After submission of charge sheet cognizance was taken and on 26.8.2019 charges were framed under section 363, 302, 376 A B, 201 IPC and 3(2)(v) SC/ST Act and 5(m)/6 POCSO Act against the appellant. Appellant denied all the charges and claimed trial.
Prosecution Evidence
13. During trial, prosecution examined 11 witnesses. Their testimony is noticed below:-
14. PW-1 is the informant of the case. She is the mother of the deceased. She stated that on 25.4.2019, at about 11 am, her daughter (the deceased), aged about 11 years, had gone to play but she did not return. At that time, she (the deceased) wore payjama-kurta. PW-1 stated that report of the incident was dictated by her to X (not examined), who wrote it, and the same was given by her at the police station. The written report was marked Ext. Ka-1. PW-1 stated that, later, she came to know that the appellant raped and killed her daughter by crushing her head with the help of bricks. She further stated that the bricks used in the incident were recovered at the instance of the appellant.
15. During cross-examination, PW-1 stated that she is illiterate but can sign. On the report, she had put her thumb impression. PW-1 stated that the incident is of 25th but she is not aware about the month and the year as she is illiterate. PW-1 stated that now she does not remember who was the scribe of the report. PW-1 stated that she named the appellant. His name was disclosed by her Jethani (PW-2). During cross-examination, PW-1 stated that the house of the appellant is in front of her house and that after lodging the report, the appellant was apprehended by her and others and they took him to the police station. She further stated that she does not remember after how many days of the report, appellant was apprehended and taken to the police station. She also could not tell as to for how many days the appellant was detained at the police station. PW-1 could not tell as to on how many papers police got her thumb impression. She stated that the written report was dictated by her and was scribed at the police station. She stated that the police did not take her to any other place except the police station. PW-1 also stated that the written report (Ext. Ka-1) was read over to her. She denied the suggestion that the report was not read over to her.
16. PW-2 is the Aunt of the deceased (wife of the elder brother of the father of the deceased). She stated that on 25.4.2019, at about 11:00 AM, when she was sitting at her house, deceased was seen crossing the railway track. PW-2 requested the deceased not to cross the track but she (deceased) did not pay any attention to her advise and crossed the railway track. When the deceased was standing across the track, she saw the accused also crossing the track and talking to the deceased and thereafter the appellant took her away. During cross-examination, PW-2 stated that the railway track is near her house but she does not know the place from where the dead body was recovered. She (PW-2) also stated that she had informed the informant (PW-1) on the same about what she had seen but she was not aware as to who was the accused in the report. PW-2 stated that she witnessed the deceased crossing the railway line at about 11 AM. But after the train passed from the line, she did not see the deceased thereafter. PW-2 stated that the appellant and the deceased were spotted together, talking to each other, for five minutes and, thereafter, where they went she does not know. PW-2 denied the suggestion that she did not witness the deceased in the company of the appellant.
17. PW-3 is the uncle of the deceased. According to PW-3, the deceased was enticed away and killed by the appellant after committing rape. PW-3 stated that the deceased belonged to Bahalia caste, which is a scheduled tribe. During cross-examination, PW-3 stated that on the date of incident, he was not at home. He had gone to buy bangles. He stated that his wife (PW-2) informed him about the incident, at about 3 pm. PW-3 stated that his brother and brother's wife (PW-1) had gone to lodge the report on the date of incident. He stated that he had gone to the police station along with the wife of his brother (PW-1) to lodge the FIR but he is not aware whether any person's name was disclosed in the FIR or not. PW-3 stated that after a day or two of the incident, dead body of the deceased was recovered. PW-3 accepted the suggestion that he did not witness the deceased (i.e. the victim) going with any one and that what he has stated is on the information received from his wife.
18. PW-4 is the neighbour of informant (PW-1). He stated that on 25.4.2019 when he was going to the market, he saw the appellant with the deceased standing in front of a bank in Ram Nagar. He asked the deceased as well as the appellant as to where they were going and the appellant informed him that they were going to the market. PW-4 stated that thereafter he did not see the deceased alive. He stated that the appellant enticed away the deceased, raped and murdered her.
19. During cross-examination, PW-4 stated that he is a graduate and sells bangles. He has no relationship with the family of the deceased and that his house is about 50 meters away from the house of the informant. He stated that on 25.4.2019 he had left his house to go to Shikohabad for business at about 5.30 am; sold bangles till about 10 am and returned back home by about 2.00 pm. PW-4 stated that he used the same path for going and coming back home and on that route no Bank is located. During cross-examination, PW-4 stated that he saw the deceased at Ram Nagar S.B.I. Bank at about 11.30 am but admitted that this information was not given by him either to the informant or to the police.
20. Constable Ravindra Singh, is PW-5. He proved the chik FIR as Ext. Ka-2 and computerized G.D. Entry of kayami mukadma as Ext. Ka-3.
21. In his cross-examination, PW-5 stated that the case was lodged against unknown person and at the police station, the informant (PW-1) and the scribe (not examined) had arrived on 26.4.2019 at 6:10 am in the morning and they had come with a written report (Ext. Ka-1). PW-5 denied the suggestion that he did not prepare the chik FIR as per the application given by the informant (PW-1).
22. Jitendra Singh is PW-6. He is one of the witnesses of the inquest report (Ext. Ka-13). He stated that on 26.4.2019, in Sofipur region of police station Basai Mohammadpur, a dead body of an unknown female was recovered which was in a decomposing state. The inquest of the body was completed by about 1:00 PM.
23. In his cross-examination, PW-6 stated that he is a resident of Sofipur; while he was going towards his field, on the way, seeing the crowd, he stopped; police arrived there 5 to 6 minutes after his arrival; he does not know who informed the police; the dead body was lying in field but he does not know whose field it was. PW-6 stated that dogs had eaten a major portion of the body. The body was carrying a payjama. But the condition of the body was very bad, therefore, it was not possible to identify the same. PW-6 stated that where the body was lying, there were no bushes around.
24. Dr. Anurag Vyas is PW-7. He is the autopsy surgeon who conducted the autopsy of the body, on 27.4.2019. PW-7 stated that he received the body in an unsealed condition. According to PW-7, dead body was in a decomposed condition and rigor mortis had passed from all over the body. Skin peeled off at the places and eyes, mouth, tongue and teeth were not present. He described the injuries noticed by him, which we have already noticed above.
25. According to PW-7, vagina was ruptured and he had prepared a vaginal smear slide and had sent it for pathological examination. According to PW-7, time of death was about two days before autopsy and cause of death was due to ante mortem injuries. PW-7 stated that salwar, kurta and one pair of anklet (after sealing) were sealed and handed over to the police. PW-7 proved the autopsy report as Ext. Ka-4. In his cross-examination, PW-7 stated that the right hand of the body of the deceased was missing, skin and muscles of face and scalp were also missing. According to PW-7, the age of the deceased would be around 13 years. PW-7 stated that the deceased might have taken food 3 to 5 hours before her death. He stated that the body of the deceased was identified as per information provided by father or uncle of the deceased.
26. Baldev Singh Khaneda is PW-8. He is the 3rd Investigating Officer who investigated the case from 21.6.2019. He proved few stages of the investigation and addition of Section 3 (2)(v) SC/ST Act. He proved the charge sheet as Ext. Ka-11.
27. In his cross-examination, PW-8 stated that he perused the caste certificate of the victim (deceased) she was member of SC/ST caste. He stated that during investigation he had asked the doctor whether the victim had been raped and the doctor had confirmed it.
28. PW-9 is Sub Inspector Chhatrapal Singh. He is the first investigating Officer of the case. He stated that on 26.4.2019, he was posted at police station Linepar as Sub Inspector. On registration of the case, he recorded the statement of witnesses including PW-1 (mother of the deceased). PW-9 stated that PW-1 in her statement recorded under Section 161 Cr.P.C. had expressed suspicion against the appellant and at her instance, he inspected the spot. PW-9 proved the site plan as Ext. Ka-12. PW-9 further stated that on 27.4.2019 it was entered in C.D. Parha No.2 that the kidnapee's body has been recovered and identified by her family members; and that dead body was sent to mortuary for post mortem. He stated that during investigation name of the appellant surfaced and Sections 302, 376 AB IPC ¾ POCSO Act were added whereafter, the investigation was conducted by the Station House Officer.
29. In his cross-examination, PW-9 stated that after lodging the FIR, he went to the house of informant (PW-1) and had recorded her statement. PW-1 supported the FIR and expressed suspicion against the appellant. Other than the name of the appellant, PW-1 did not disclose name of any other person. PW-9 stated that PW-1 had informed him that although nobody was named in the FIR but she has suspicion against the appellant. He further stated that when he went to the house of the appellant he could not find him. PW-9 admitted that neither the dead body of the deceased was recovered by him nor he sent the body for autopsy. He stated that the body was sent for post mortem by police of police station Basai Mohammadpur, Firozabad. PW-9 stated that he received the autopsy report from police station Basai Mohammadpur, Firozabad. PW-9 stated that while he investigated the matter, he could not arrest the appellant because after addition of sections 302, 376 AB IPC, investigation was taken over from him by S.H. O. Sanjay Singh (PW-11). PW-9 stated that except expression of suspicion by PW-1 against the appellant, he could not collect any other evidence against the appellant. PW-9 stated that after recovery of dead body, the name of appellant surfaced in the statement of witnesses. According to those witnesses, the appellant had taken away the deceased.
30. Sub Inspector, Sahab Singh is PW-10. He stated that on 26.4.2019 while he was posted at Basai Mohammadpur, Firozabad he received information from mobile No. 8006288765 at No. 100 that in village Sofipur, behind the shop of Bara, a body of a lady is lying in a burnt condition. After receiving the information, he arrived at spot along with lady constables and prepared the inquest report (Ext. Ka-13). PW-10 produced the clothes of the deceased in Court, which were made material Ext. Nos. 15, 16 and 17.
31. During cross-examination PW-10 stated that the dead body was in a decomposed condition and at the time of inquest, the identity of the body could not be fixed. The body was in a red-green colour kurti, which had yellow prints, and maroon coloured salwar. PW-10 stated that he handed over the clothes in a sealed condition to the police of police station -Linepar. He stated that after the inquest proceeding, he did not carry out any further investigation of that case.
32. Sub Inspector, Sanjay Singh is P.W. 11. He is the Second Investigating Officer of the case. He stated that on 27.4.2019 he prepared parcha No. II A of the case diary and on 28.4.2019, arrested the appellant who confessed his guilt and on his pointing out, from the spot, blood stained and plain earth was lifted and recovery memo (Ext. Ka 14) was prepared. PW-11 produced the blood stained and plain earth which were made material Ext. 1 to 6. PW-11 stated that he also recovered slippers of the deceased from the spot and prepared recovery memo (Ext. Ka-15). According to PW-11, the slippers were identified by deceased's father (not examined). According to PW-11, from the spot, four bricks and one blood stained main brick was recovered of which a recovery memo Ext. Ka-16 was prepared. PW-11 produced the bricks as material Ext. 7 to 10 and also produced the main brick used by the appellant to crush the face of the deceased, which was marked material Ext. 11 and 12. PW-11 stated that he recovered the jeans (pant) of the accused-appellant and prepared its recovery memo (Ext. Ka-17). PW-11 produced the jeans (pant) of the appellant as material Ext. 14. PW-11 proved the arrest memo of the appellant as Ext. Ka-18. According to PW-11, on 29.4.2019 medical examination of appellant was conducted and his nail clippings were taken by the doctor. PW-11 stated that on 29.5.2019, he collected the caste certificate of deceased and added Section 3(2)(v) of the SC/ST Act thereafter, further investigation was conducted by Circle Officer (PW-8) as the deceased belonged to Bahalia caste, which is one of the scheduled tribes. On 25.8.2021, examination-in-chief of PW-11 was again recorded. He stated that he had prepared site plan of the place of the incident. The same was marked Ext. 19. During cross-examination, PW-11 stated that he arrested the appellant on 28.4.2019 on the basis of information furnished by the informer. He stated that at the time of appellant's arrest, there was no public witness. PW-11 stated that the place of incident was a secluded place where new plots were being carved out. At the spot there was a half constructed room. Only its wall was there. The place of incident was about 400 to 500 meters away from the main road. PW-11 stated that at the time when the accused had taken him to the spot, there was no dead body. He denied the suggestion that the case was not properly investigated and that he deliberately did not rope in independent witnesses.
33. After the prosecution evidence was recorded, the trial court recorded statement of the appellant under Section 313 Cr.P.C. The appellant denied the incriminating circumstances and stated that dead body of an unknown lady was recovered in a decomposed condition; without identification, inquest report was prepared; and merely on the basis of suspicion, he has been made accused.
Defence Evidence
34. After the statement of appellant was recorded two defence witnesses were examined, namely:-
35. Seetu is DW-1. He stated that the appellant is his uncle. On 24.4.2019, there was a marriage of his sister -Mangla. Appellant attended the marriage of his sister from the evening of 24.4.2019 and was there till 26.4.2019. DW-1 stated that attending that marriage, Mannu s/o Sultan, who happens to be son of his Bua, was also present. In his cross-examination, DW-1 stated that he resided in District Jalaun whereas the appellant is resident of District Firozabad. DW-1 stated that he did not go to invite the appellant. The invitation was given by his brother on phone. He admitted that during the course of marriage video was prepared and photographs were taken but there is no photograph of the appellant with DW-1. He also stated that the appellant is not his close relative. He denied the suggestion that his uncle (appellant) did not attend the marriage of his sister and his photo is not there in the video.
36. Mannu is DW-2. He stated that Seetu (DW-1) is his friend. DW-2 came on 23.04.2019 to attend the marriage of sister of Seetu (DW-1) there he met the appellant in the evening of 24.04.2019. DW-2 stated that he returned from the marriage on 27/28.04.2019. DW-2 stated that he is not aware as to when appellant returned from the marriage. During cross-examination, DW-2 stated that he is not aware as to from where the Baraat came and when the Baraat arrived. At that time he was in his house, having food. He denied the suggestion that appellant was not present in the marriage.
37. The trial court upon consideration of the evidence on record found the appellant guilty of rape and murder of the deceased and, accordingly, convicted him under Sections 363, 302, 376 AB, 302 IPC read with Sections 3(2)(v) SC/ST Act and awarded death penalty under Sections 302, 376 AB IPC read with Section 3(2)(v) SC/ST Act.
38. We have heard Sri Dilip Kumar, learned Senior Counsel, assisted by Sri Rizwan Ahmad for the appellant; and Sri Amit Sinha, learned AGA for the State and have perused the record.
Trial Court Findings
39. Trial court found following incriminating circumstances proved:-
(i) The deceased was last seen alive in the company of the appellant on 25.04.2019, firstly, at about 11.00 am near the railway crossing by PW-2 and, secondly, at about 11.30 am near SBI Ram Nagar by PW-4 and, thereafter, she was not seen alive;
(ii) Body of the deceased was recovered on 26.04.2019. The autopsy conducted on 27.04.2019 and the serologist report disclosed that she was raped and murdered two days before;
(iii) On the disclosure made by the appellant on 28.04.2019 blood stained brick and slippers of the deceased was recovered;
(iv) At the time of arrest on 28.04.2019, the Jeans (Pant) worn by the appellant carried blood stain; and
(v) The serologist report confirmed presence of human blood on the brick recovered at the instance of the appellant as also on the Jeans (pant) and nail clippings of the appellant.
40. Trial court found that the proven circumstances constituted a chain so complete that it conclusively pointed towards the guilt of the appellant and as the appellant failed to discharge the burden placed upon him under Section 106 of the Evidence Act to explain as to why he should not be held guilty, convicted the appellant and sentenced him accordingly as already noticed above.
Submission of behalf of the appellant
41. Learned counsel for the appellant submitted that there is no admissible evidence on record against the appellant and trial court failed to appropriately appreciate the evidence on record and wrongly convicted the appellant in the present case. Learned counsel for the appellant submitted that perusal of the FIR (Ext. ka 2) shows that it was lodged against unknown person but the informant (PW-1), who lodged the FIR, in her testimony stated that she had named the appellant. This shows that prosecution did not come with clean hands and have contrived the story on suspicion/guess work. He submitted that as per the informant (PW-1), after the FIR, the appellant was apprehended by the informant (PW-1) and others and was handed over to the police and, therefore, the prosecution story that the appellant was arrested by the police on 28.4.2019 on the information of an informer, appears false and as arrest of the appellant become doubtful, the alleged recoveries at the instance of the appellant would neither be admissible nor can be used against the appellant. Learned counsel for the appellant further submitted that the evidence of PW-2 and PW-4 in respect of the circumstances of last seen is neither reliable nor conclusive. Further, even if it is accepted then too, merely on the basis of the evidence of last seen, appellant cannot be convicted as the time gap between the appellant last seen alive with deceased and the recovery of dead body is very large. Moreover, the prosecution has failed to show that the place where the deceased was last seen alive with the appellant was in close proximity to the place from where her body was recovered. He further submitted that the name of the appellant surfaced on the basis of information given by PW-2 but, according to PW-2, she had given that information on the very first day yet, the appellant was not named in the FIR, which was lodged on 26.04.2019. This casts a pale of doubt on the testimony of PW-2 that she saw the appellant with the deceased on 25.04.2019 at about 11.00 am. Learned counsel for the appellant submitted that though the serological report mention that human blood was found on the jeans (pant) of the appellant but the recovery memo (Ext. Ka-17) of the pant does not mention blood stain on the pant, therefore, it appears, after recovery of the pant, false evidence was created by the police. Moreover, the blood group was not matched with the deceased. Hence, it cannot be said with certaintly that the blood found on the pant of the appellant was of the deceased. He also submitted that the dead body of the deceased was found in village Sofipur, behind the shop of Barashree, within the jurisdiction of police station Basi Mohammad Pur whereas, according to the prosecution, the place of incident was a half constructed room. This place is totally different from the place from where the dead body was found. Thus, the alleged disclosure statement becomes totally doubtful because if the appellant, after committing rape and murder, covered the body in a half constructed room with bricks how the same was recovered from some other place. Therefore, the prosecution story appears false and no reliance can be placed on it. Learned counsel for the appellant also submitted that according to Jitendra (PW-6), one of the witnesses of the inquest report, the dead body was lying in an open field. If it was so, then the alleged hiding of the body in a half constructed room and recovery of bricks therefrom, allegedly on the basis of disclosure, falls to the ground. It was urged that the trial court failed to consider this important aspect of the case and without properly evaluating the evidence related to recovery and last seen convicted the appellant and thereby committed a grave mistake. Learned counsel for the appellant submitted that the present case is a case based on circumstantial evidence; the prosecution miserably failed to prove the incriminating circumstances beyond reasonable doubt and the chain of circumstances was not complete and, therefore, conviction and sentence recorded by court below is liable to be set aside. In the alternative, learned counsel for the appellant submitted that as the present case totally rests upon circumstantial evidence, reference to confirm death penalty should be negatived.
Submission on behalf of the State
42. Per contra, learned AGA submitted that there is evidence on record which proves that the appellant was last seen along with the deceased and on the same day, deceased was murdered; that apart from last seen evidence, on the pointing out of the appellant blood stained bricks were recovered and as per the forensic lab report, on the bricks human blood was found. As per evidence of autopsy surgeon, the vagina was found ruptured, therefore, it is apparent that before murder the girl was raped. Learned AGA submitted that forensic lab report confirmed that on the Jeans (pant) of the accused-appellant there was human blood and in nail clipping of the appellant, blood was found, which is a corroborative piece of evidence confirming the involvement of the appellant in the rape and murder of the deceased. Learned AGA further submitted that the prosecution has successfully proved the chain of circumstances and the trial court rightly convicted the appellant. On the question of sentence, learned counsel for the state submitted that since it is a case of rape of a minor girl and, thereafter, the girl was brutally murdered, death sentence awarded to the appellant is justified and, therefore, the appeal is liable to be dismissed and death penalty awarded by the trial court should be confirmed.
Analysis
43. The instant case is based on circumstantial evidence. There is no eye witness account of either rape or murder. As to when conviction can be recorded on evidence of a circumstantial nature, the law is settled. In a recent decision in the case of Anwar Ali Vs. State of Himanchal Pradesh 2020 (10) SCC 166, a three judge Bench of the Supreme Court, after noticing various decisions, on the issue, in para-15, 16 and 17, observed as follows:-
"15. It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in a catena of decisions that in case of a circumstantial evidence, 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 none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
16. In Babu V. State of Kerala (2010) 9 SCC 189, it is observed and held in paras 22 to 24 as under:
"22. In Krishnan V. State (2008) 15 SCC 430, this Court after considering a large number of its earlier judgments observed as follows:
"15. ...This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) 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 none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
23. In Sharad Birdhichand Sarda V. State of Maharashtra (1984) 4 SCC 116 while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(ii) 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;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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. A similar view has been reiterated by this Court in State of U.P. V. Satish (2005) 3 SCC 114 and Pawan Vs. State of Uttranchal (2009) 15 SCC 259.
24. In Subramaniam V. State of T.N. (2009) 14 SCC 415, while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable. (See Ramesh Bhai Vs. State of Rajasthan) (2009) 12 SCC 603)." (emphasis supplied)
17. Even in G. Parshwanath V. State of Karnataka (2010) 8 SCC 593, this Court has in paras 23 and 24 observed as under:
"23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
44. From above, it is clear that for conviction to rest solely on circumstantial evidence, it is necessary for the prosecution to prove beyond reasonable doubt each of the circumstances that is to be relied against the accused and must demonstrate that the circumstances form a chain so complete that it leaves no reasonable ground for the conclusion consistent with the innocence of the accused and shows that in all human probability the act has been done by the accused.
45. In light of the legal principles noticed above, we shall now evaluate the prosecution case on the weight of the evidence led during the course of trial.
46. In the present case, the prosecution relied upon following circumstances against the appellant:-
(i) The deceased was last seen alive with the appellant on 25.4.2019, firstly, at about 11 AM and, secondly, at 11:30 AM, and thereafter, her body was recovered on 26.04.2019 and as per the post mortem, dated, 27.04.2019, the deceased could have died two days before. Meaning thereby that she died in close proximity to the time when she was last seen alive with the appellant.
(ii) Autopsy report confirms that the deceased was raped and murdered.
(iii) When the appellant was arrested, he confessed his guilt and on his pointing out blood stained bricks used as a weapon of assault were recovered and forensic lab report proved presence of human blood on the bricks.
(iv) The jeans (pant) worn by the appellant at the time of arrest had human blood stain as confirmed by forensic report.
(v) At the instance of the appellant slippers of the deceased were recovered.
(vi) The deceased was a minor girl aged below 12 years.
47. We will now examine whether the circumstances relied by the prosecution, have been duly proved and whether the trial court justifiably convicted the appellant.
Last seen circumstances
48. To prove the circumstances of last seen, the prosecution relied upon the testimony of PW-2 and PW-4. PW-2 is Tai of the deceased and is sister-in-law (Jethani) of mother of the deceased. She (PW-2) stated that on 25.4.2019, at about 11:00 AM when she was sitting at her house, she saw the deceased crossing the railway track in front of her house. She stated that after she had crossed the track, she saw the appellant also there. In her cross-examination, PW-2 stated that soon thereafter a train passed on that track. It took 10 minutes for the train to pass. After that train passed, she did not see the deceased. As in her cross-examination PW-2 specifically stated that after the train passed, she did not see the deceased, the evidence is not conclusive, firstly, because it is not clear that the deceased was on her own or going with the appellant and, secondly, because talking to a known person is not a conclusive indica of being together. Moreover, the testimony of PW-2 is not that the deceased and the appellant crossed the railway track together but it is of the appellant following her. Thus, in our considered view, this circumstance is not conclusive of the deceased being in the company of the appellant or vice versa. Further, PW-2 stated that on same day she informed the informant (PW-1) about the circumstance noticed by her. PW-1 admitted this fact. But, in spite of that, PW-1 did not mention this circumstance in the FIR and no suspicion is expressed against the appellant even though the FIR was lodged on the next day. Rather, it is stated in the FIR that her daughter has gone somewhere. This casts a serious doubt as to whether PW-2 actually witnessed the appellant with the deceased on 25.04.2019 at 11.00 AM. Thus, the testimony of PW-2 with regard to the appellant being noticed in the company of the deceased does not inspire our confidence. We, therefore, discard her evidence that she saw the appellant with the deceased on 25.4.2019 at about 11:00 AM.
49. In so far as PW-4 is concerned, he stated that on 25.4.2019, at about 11.30 AM while he was going to the market, he saw the deceased with the appellant in front of the Bank situated in Ram Nagar. He also stated that he inquired from the deceased as well as the appellant as to where they were going upon which the appellant informed him that they were going to the market. During cross-examination, PW-4 stated that on 25.4.2019, at about 5:30 am, he had left his house to go to Shikohabad to sell bangles. He sold bangles till 10 am and returned to his house at about 2:00 PM on 25.04.2019. PW-4 stated that he chose the same route to go to the market as he took to return home and on that route, in between, there is no Bank. Thus, the statement of PW-4 that on 25.4.2019, at about 11:30 am, he saw the deceased with the appellant in front of SBI Bank appears incorrect because if there was no bank on way then how could he witness the appellant with the deceased at or near the Bank. The testimony of PW-4 therefore does not inspire our confidence.
50. Moreover, PW-4 is a chance witness. The law in respect of value of the testimony of a chance witness has been recently surveyed and reiterated by the Apex Court in the case of Rajesh Yadav and others Vs. State of U.P., 2022 (3) ADJ 114 (SC). The relevant observations are contained in paragraph 27 extracted below:-
"27. The principle was reiterated by this court in Jarnail Singh Vs. State of Punjab, (2009) 9 SCC 719:
"21. In Sachchey Lal Tiwari Vs. of U.P. [(2004) 11 SCC 410: 2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passerby had deposed that he had witnessed the incident, observed as under:
If the offence is committed in a street only a passerby will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.
The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence Satbir Singh v. Surat Singh [(1997) 4 SCC 192: 1997 SCC (Cri) 538], Harjindar Singh Vs. State of Punjab [(2004) 11 SCC 253: 2004 SCC (Cri) Supp 28], Acharaparambath Pradeepan [(2006) 13 SCC 643: (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188]). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal vs. State of Rajasthan [(2004) 10 SCC 632: 2005 SCC (Cri) 579]).
23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya Vs. T.N. (2005) 9 SCC 650. Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned."
51. In view of the law noticed above, PW-4 being a chance witness had to explain his presence at the place where he witnessed the deceased in the company of the appellant. In the present case, PW-4 stated that enroute to the place of business he had the occasion to witness the appellant and the deceased together but, during cross-examination, he admitted that in that route no Bank falls therefore, the place where he witnessed them together does not fall in that route. Thus, we can safely conclude that the explanation rendered by PW-4 for his presence there is not satisfactory and convincing. Further, as per case of Jarnail Singh Vs. State of Punjab, 2009 (9) SCC 719, which was discussed by Apex Court in case of Rajesh Yadav (supra), conduct of the chance witness subsequent to the incident is also important, particularly, whether he has informed anyone about the fact. In the present case, PW-4, in his testimony, specifically stated that he did not inform the fact that he witnessed the deceased along with the appellant on 25.4.2019 at about 11:30 am. Therefore, on this ground also, the testimony of PW-4, who is a chance witness, is not reliable and is unworthy of acceptance.
52. As, both the witnesses i.e. PW-2 and PW-4 of the last seen circumstance, in our view, do not inspire our confidence, we come to the conclusion that the prosecution could not prove beyond reasonable doubt that the deceased was last seen alive in the company of the appellant.
Confession before police and consequential recovery
53. Another circumstance relied by the prosecution is that when the appellant was arrested, he confessed his guilt and on his pointing out, blood stained bricks were recovered and the Forensic Lab report confirmed the presence of human blood on these bricks. As far as confession made by an accused to the Investigating Officer is concerned, it is not admissible in evidence by virtue of Section 25 of the Indian Evidence Act which reads as follows:-
25. Confession to police officer not to be proved. --No confession made to a police officer, shall be proved as against a person accused of any offence.
However, that portion of the confession that leads to the recovery of any incriminating material, such portion alone, is admissible under Section 27 of the Evidence Act.
54. As far as the recovery of the bricks and slippers of deceased on the pointing out of appellant is concerned, the same appears doubtful because, in our view, the arrest of the appellant, alleged to have been made on 28.04.2018 on the basis of information received from an informer, is extremely doubtful. Notably, PW-1, the informant and mother of the deceased stated that the appellant was apprehended by her and others, after lodging the FIR, and was brought to the police station where he was detained. Although, PW-1 was not aware as to how long the appellant was detained at the police station but, as per her (PW-1's) testimony, he was apprehended by PW-1 and other persons after lodging the FIR. There is no evidence that after being handed over to the police, the appellant was released. Whereas, as per police witness, appellant was arrested on 28.04.2019, at about 2.00 PM, on the basis of information received from an informer. Consequently, there arises a serious doubt in respect of the arrest of appellant on 28.04.2019.
55. In the case of Rammi alias Rameshwar Vs. State of M.P. (1999) 8 SCC 649, the Apex Court declined to place reliance on the evidence of recovery on the basis of information furnished by accused on the ground that there was material discrepancy in the testimony of witnesses with regard to the time of arrest of the accused. Ordinarily, where the arrest of the accused becomes doubtful a taint gets attached to the testimony of police witnesses with regard to the disclosure of the accused being the basis of recovery. In the present case, the testimony of PW-1 creates a serious doubt with regard to the arrest of the appellant on 28.04.2019, therefore, recovery of bloodstained bricks on his pointing out, after his arrest, also becomes doubtful more so, when it has no support from an independent witness testimony. At this stage, we may observe that recovery of slippers of the deceased and bricks were allegedly made in the presence of a number of witnesses but none of those witness were examined during trial. Recovery was sought to be proved solely on the basis of testimony of Sanjay Singh (PW-11), the Investigating Officer, whose testimony, in respect of arrest, we have found unreliable in view of the statement of PW-1. This fact also cast a doubt on the recovery. Thus, it hardly matters if, as per forensic lab report, the bricks recovered carried human blood.
56. Further, human blood on the jeans (pant) of the appellant is not a clinching circumstance against the appellant as it has not been confirmed whether the blood was of the deceased or of the appellant. It is very much possible that there may be traces of blood on one's trouser for multiple reasons such as presence of an injury or a bleeding boil or scratch, etc. Notably, the recovery memo of the pant (Ext. Ka-17) does not reflect that at the time of recovery the pant carried blood mark or stain. In fact, Ext. Ka-17 (recovery memo of the jeans of the accused-appellant) reflects that the jeans of the appellant was recovered and sent to forensic lab to ascertain whether there was any semen on it. There was no semen found and so far as blood is concerned its origin was not ascertained, that is, whether it was of the appellant or the deceased. Thus, in our considered view, the presence of blood on the Jeans of the appellant is not an incriminating circumstances which may clinch the issue against the appellant.
57. Another notable feature which creates a doubt as to the genuineness of the recovery is that as per the inquest report (Ext. Ka-13), dead body of the deceased was lying behind the shop of Barashree whereas Jitendra Singh (PW-6), a panch witness, stated that the body was lying in a field. While the recoveries (slippers, bricks) were made from an under constructed room in a colony where, according to the disclosure, the girl was raped, killed and the body was hidden. There is no evidence as to how dead body came near the shop of Barashree from that room where it was hidden, if the disclosure statement is to be accepted. This unexplained inconsistency in the prosecution case casts a serious doubt on the alleged recoveries made at the instance of the appellant.
FSL Report
58. Trial court also relied upon the forensic laboratory report, dated 15.06.2019, which indicates that in the nail clipping blood was found. Although, as per the forensic lab report, the nail clipping was of the deceased, but the trial court in its judgment observed that there is no evidence that nail clipping of the deceased was taken and sent for chemical analysis. The court below observed that as per the testimony of Sanjay Singh (PW-11), the Investigating Officer, nail clipping of the appellant was taken. Therefore, the trial court concluded that nail clipping sent to forensic lab was of the appellant and as blood was found on the nail clipping, it is a clinching circumstance/evidence against the appellant. We do not agree with the findings and observations of the trial court in this regard. No doubt, PW-11 (Sanjay Singh), the Investigating Officer, stated that on 29.04.2019 he prepared parcha no.4 of the case diary and entered that the appellant was medically examined and the doctor had taken his nail clipping, but neither the recovery memo of nail clipping of the appellant nor the medical report of the appellant was prepared and proved. Even the doctor, who examined the appellant and took his nail clipping, was not examined. Further, there is no evidence on record to show that the alleged nail clipping of the appellant was sealed and forwarded to forensic lab for analysis. In absence of these material evidences, merely on the basis of bald statement of the Investigating Officer, it cannot be held that the nail clipping sent to forensic lab was of the appellant. Otherwise also, we do not consider the presence of blood in the nail clipping as a clinching circumstance against the appellant for the reasons: (a) due to disintegration it could not be determined that blood found on nail clipping was human blood; and (b) if one uses nail to scratch one's body, often traces of blood get trapped in the nails hence presence of blood there, in absence of determination of its origin, in our view, is not a clinching incriminating circumstance. Therefore, this piece of evidence does not help the prosecution.
Non-compliance of Section 53A Cr.P.C.
58. In the present case when the appellant was arrested, as per provisions of Section 53A Cr.P.C., his medical examination should have been conducted. No such medical examination of the appellant has been brought on record much less proved. Sanjay Singh (PW-11), the Investigating Officer, though stated that the appellant was medically examined but during trial neither medical report of the accused nor the doctor who examined him was produced. The Apex Court in the case of Krishan Kumar Malik Vs. State of Haryana (2011) 7 SCC 130 highlighted the object of section 53A of the Code of Criminal Procedure by observing as under:-
"44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences."
60. In the present case as per FSL report dated 15.06.2019 sperm was found in the vaginal smear of the victim (deceased), therefore, by DNA profiling of the biological material, if any, obtained from the accused-appellant it could have been determined whether the sperm found had its origin in the appellant. But, unfortunately, no effort in that regard was made. Therefore, in light of the observations of the Apex Court in Krishan Kumar Malik's case (supra), the prosecution has to face the consequences.
Section 106 Evidence Act
61. Trial court placed reliance on the provisions of Section 106 of the Evidence Act to hold the appellant guilty as he failed to explain the circumstance of last seen and other circumstances relied by the prosecution. Section 106 of the Evidence Act does not absolve the prosecution of its primary responsibility to prove the prosecution case beyond reasonable doubt. In Shivaji Chintappa Patil Vs. State of Maharashtra 2021 (5) SCC 626, in paragraph no. 23, the Apex Court clarified the law as to when Section 106 of the Evidence Act would operate by observing as follows:-
"It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused."
62. From above, it is clear that before shifting the burden upon the accused to furnish explanation of the incriminating circumstances appearing against him, it is necessary for the prosecution to prove its case beyond reasonable doubt.
63. In the present case the prosecution has failed to prove beyond reasonable doubt that the deceased was last seen alive with the accused-appellant and that the recoveries were made at the instance of the appellant therefore, burden could not have been placed upon the appellant to explain those circumstances. Thus, in our view, the court below wrongly took aid of the provisions of Section 106 of the Evidence Act to convict the appellant.
64. In view of the discussion made above, we are of the considered view that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt, the conviction of the appellant is therefore unsustainable. Consequently, the appeal is allowed. The judgment and order of the trial court is set aside. The reference to confirm the death penalty is rejected. The appellant is acquitted of the charges for which he has been tried. As he is in jail, he shall be released 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 below.
65. Let the lower court record be sent along with certified copy of the order to the trial court for compliance.
Order Date :- 08.07.2022 AK Pandey