Deepak Jaiswal vs State Of U.P. on 9 January, 2023

[Cites 18, Cited by 0]

Allahabad High Court

Deepak Jaiswal vs State Of U.P. on 9 January, 2023

1. This jail appeal has been preferred by the accused-appellant Deepak Jaiswal against the judgment and order dated 1st November, 2019 passed by the Special Judge (POCSO Act)/Additional Sessions Judge-VII, Jaunpur, in Special Sessions Trial No. 12 of 2016 (State of U.P. Vs. Deepak Jaiswal), arising out of Case Crime No. 266 of 2016 under Sections 376, 302, 201 I.P.C., Sections 3/4 POCSO Act and Section 7 Criminal Law Amendment Act, Police Station-Madiyahoo, District-Jaunpur, whereby the accused-appellant has been convicted and sentenced to undergo life imprisonment for the offence under Section 302 I.P.C. with a fine of Rs. 10,000/- each, in default thereof he has to further undergo one year additional imprisonment; life imprisonment with fine of Rs. 50,000/- under Section 376 I.P.C., in default thereof, he has to further undergo one year additional imprisonment; two years rigorous imprisonment with fine of Rs. 5,000/- under Section 201 I.P.C., in default thereof, he has to further undergo three months additional imprisonment; and six months' simple imprisonment with fine of Rs.500/-, in default thereof, he has to further undergo one month additional imprisonment with an observation that all the sentences are run to concurrently.

2. We have heard Mr. Vindeshwari Prasad, Advocate, who has appeared on behalf of the accused-appellant as Amicus Curiae and Mrs. Archana Singh, learned A.G.A. for the State and also perused the entire materials available on record.

3. The prosecution case proceeds upon a written report dated 27th January, 2016 (Exhibit-Ka/1) of first informant, namely, Babita Chaubey (P.W.-1) on the basis of which the first information report (Exhibit-ka/3) as case crime no. 0266 of 2016 has been registered on the same day at 08:15 p.m. The report has been proved by P.W.-1 as per which the informant/P.W.-1 had come to her parents' house at Mohalla Ganj, Police Station-Madiyahu, District Jaunpur. On 27th January, 2016 informant's daughter aged about 7 years had gone to the Shiv temple in front of the house and was playing on the platform (Chabutara) with other children. Informant was watching her from the house. At 04:00 p.m. the accused-appellant, resident of nearby locality, was seen around the temple and he also showed affection to the victim and offered her toffee and biscuit and started talking to her. The accused-appellant was seen taking the victim but the first informant did not doubt his intentions and thought that the accused-appellant was only caressing her. It is alleged that several children present at the place saw the accused-appellant taking the victim. The informant's attention was diverted on account of house hold work and taking advantage of it the accused-appellant allegedly enticed the minor victim. The informant remained under the believe that her daughter was playing with her friend. After some time when the victim was not seen the informant came to the temple but could not find her daughter. The informant had the firm belief that it was the accused-appellant who had taken the victim. Since the accused-appellant had bad reputation in the locality, the informant began to believe that the accused-appellant took the victim with him to some unknown place with bad intentions.

4. Ultimately, the accused-appellant was found at the Shiv Chitra Mandir (Talkies), Madiyahu. Information in that regard was given to the Police. The Police came on the spot and made inquiry from the accused-appellant who confessed to his guilt and told that he had taken the victim to a room at Swamy Vivekanand Intermediate Girls College and raped her by gagging her mouth so that she may not shout. The victim ultimately became motionless and the accused-appellant hide himself in Shiv Chitra Mandir (Talkies). The accused-appellant informed the Police that the dead body of the victim was lying at the college. He took the Police and the first informant to the college. Gate of the college was closed from outside and there was no peon. The accused-appellant informed that there was separate passage for the college towards the Belvan Dalit Basti and adjoining the boundary wall there was a room wherein the dead body of the victim was lying. The accused-appellant took the Police and the first informant to the room and in the torch light the dead body of the victim was seen. Neither there was any window nor any door in the room. The Police along with other residents of the locality jumped the boundary wall and entered the room and in the torch light found the victim naked. The first informant therefore, could come to know that her daughter has been sexually assaulted and then killed. Hearing the incident, people got horrified and hid in their homes and an atmosphere of fear and terror prevailed in the society and public order was breached. In the torch light and electricity the written report was scribed by Rajesh Pandey (P.W.-2) who happens to be neighbour of first informant. The informant affixed her thumb impression on the written report.

5. The investigation proceeded in the matter and the blood stained and simple earth were collected from the spot by the Police. The Police arrested the accused-appellant, who was medically examined and his undergarments (Exhibit-ka/15) were also recovered and sent for forensic opinion.

6. The inquest proceedings commenced at 10.15 p.m. and concluded at 23.50 p.m. (Exhibit-ka/8). The inquest was conducted at the place where the dead body of the victim itself was found and the first informant/P.W.-1 and P.W.-2 are the inquest witnesses. The victim was found to be 7 years old minor girl and her nose and mouth were pressed. There was bleeding from her private parts. No other injury was found. The dead body was sealed and sent for post-mortem.

7. The autopsy of the dead body has been conducted on 28th January, 2016 at 01:40 p.m. The period of death as per the post-mortem report is one day and the cause of death is Asphyxia as a result of ante-mortem smothering and contributed to vaginal hemorrhage and shock.

8. Following ante-motem injuries have been found on the victim:

"1. Abrasion and contusion present over nose, mouth,chin below chin

2. Hyoid bone is intact.

3. Nail abrasion and contusion over chest at xiphisternum and around both breast area.

4. Nail abrasion and contusion are present over left hand and lateral aspect of left arm

5. Nail abrasions are present over right upper arm

6. Abrasion over left side of pelvis

7. Bleeding from genitalia present

8. Hymen are ruptured.

9. Lacerations and contusion are present over labia majora and minora."

9. The forensic examination report dated 19th December, 2016 has also been brought on record as per which no blood was found on slide, nail clippers, pubic hair, underwear, hair, pant, pair of slippers, string of pearls, swab and slide. Human blood however was found on the plain earth recovered. No sperm or spermatozoa was found on the slide or underwear of the accused-appellant. The statements of witnesses were recorded under Section 161 Cr.P.C. and ultimately charge-sheet (Exhibit-ka/13) came to be submitted on 21st November, 2014 against the accused-appellant upon conclusion of the statutory investigation. The investigating officer found the charges under Sections 376, 302, 201 I.P.C., Sections 3/4 POCSO Act and Section 7 Criminal Law Amendment Act to be proved against the accused-appellant.

10. Having taken cognizance on the charge-sheet dated 21st November, 2014 the concerned Magistrate committed the case to the Court of Sessions where the charges were framed against the accused-appellant on 20th April, 2016 under Section 376, 302, 201 I.P.C. and Section 7 of Criminal Law Amendment Act. Charges were also framed under Section 4 of POCSO Act against the accused-appellant. Charges were read out to the accused-appellant, who denied the accusation and demanded trial.

11. In order to establish its case, the prosecution has adduced following documentary evidence:

"i). Written report dated 27th January, 2016 submitted by the informant-P.W.-1, which has been scribed by Rajesh Pandey (P.W.-2), which has been marked as Exhibit-Ka/1

ii). The first information report dated 27th January, 2016 has been marked as Exhibit- Ka/3;

iii). The inquest report (Panchayatnama) dated 27th January, 2016 has been marked as Exhibit-ka/8;

iv). Recovery memo of blood stained and plain earth dated 28th January, 2016 has been marked as Exhibit-ka/14;

v). Recovery memo of underwear dated 28th January, 2016 has been marked as Exhibit-ka/15;

vi). Post-mortem report dated 28th January, 2016 has been marked as Exhibit-ka/2;

vii). Site plan with index dated 28th January, 2016 has been marked as Exhibit-ka/5; and

viii). Charge-sheet dated 17th February, 2016 has been marked as Exhibit-ka/7."

12. In addition to the above documentary evidence the prosecution has adduced three witnesses of fact, namely, Babita Chaubey (P.W.-1/first informant), who happens to be the mother of the victim, Rajesh Pandey (P.W.-2/scriber of the written report), who happens to be the neighbour of P.W.-1, and Sheetla Prasad Pathak (P.W.-3) who happens to be the brother of P.W.-1. Dr. Bhaskar Singh (P.W.-4) has conducted the autopsy of the victim. Dr. Surya Prakash (P.W.-5) had assisted P.W.-4 in conducting autopsy of the victim. Constable Vijay Prakash Yadav (P.W.-6) proved the chik first information report. Sub-Inspector Akhilesh Kumar Yadav (P.W.-7) was the first investigating officer, who arrested the accused-appellant and has also recorded his confessional statement and verified the recovery of dead body on his pointing out. Ram Bharose Kushwaha (P.W.-8) was the second investigating officer. Sub Inspector Akhilesh Kumar Yadav (P.W.-9) has stated that at the time when the dead body was recovered, the nose and mouth of the victim were pressed. He has verified the inquest report.

13. On the basis of above incriminating material brought on record during the course of trial the statement of the accused-appellant has been recorded under Section 313 Cr.P.C. in which he has denied the accusation and has stated that he has been falsely implicated in the present case.

14. The trial court on the basis of evidence led in the matter has come to the conclusion that the prosecution has succeeded in establishing the guilt of the accused-appellant beyond reasonable doubt. The post-mortem report and the inquest report have been relied upon to come to the conclusion that the victim has been subjected to offence under Section 376 I.P.C. and thereafter she has been done to death. The statements of the prosecution witnesses i.e. P.W.-1, P.W.-2 and P.W.-3 have been found credible and reliable and as they have seen the victim in close company of the accused-appellant and took the victim, whose dead body has been found thereafter, as such the court below has held that the offence of rape and murder upon the deceased/victim has been committed by the accused-appellant. The court below has accordingly convicted the accused-appellant and sentenced him to undergo life imprisonment as already noticed herein above.

15. Mr. Vindeshwari Prasad, Advocate who has appeared on behalf of the accused-appellant as Amicus Curiae, submits that the accused-appellant has been falsely implicated in the present case and that the prosecution has not been able to establish the guilt of the accused-appellant beyond reasonable doubt. He submits that statement of P.W.-1/first informant that she saw the deceased/victim in the close company of the accused-appellant is not reliable and in view of her statement that the accused-appellant had bad image in the locality, it was otherwise expected that the mother would object to such company of the accused-appellant with the victim. He further submits that none of the witnesses has actually seen the occurrence in the manner suggested by the prosecution. He further submits that the first informant/P.W.-1 had come to her parents' house while her in-laws were residing elsewhere and the accused-appellant was from different locality, as such the identification of the accused-appellant by the informant/P.W.-1 itself remains doubtful, particularly as the accused-appellant was not known to the informant/P.W.-1 from before. He also submits that the alleged recovery of the dead body on the pointing out of the accused-appellant is not admissible, inasmuch as the recovery of the dead body was made prior to the lodgement of the first information report when the accused-appellant was not in custody and therefore, the disclosure allegedly made to Police is inadmissible by virtue of Section 25 of the Indian Evidence Act. He further submits that as the recovery was made while the accused-appellant was not in custody and even the first information report had not been lodged, provisions of Section 27 of the Indian Evidence Act would not come into play and therefore, the recovery would not be legally admissible as against the accused-appellant. He also submits that except these two circumstances, there is no other evidence on the basis of which the accused-appellant could be implicated in the present case.

16. Per contra, Mrs. Archana Singh, learned A.G.A. for the State submits that the statements of all the witnesses of fact i.e. P.W.-1, P.W.-2 and P.W.-3 are reliable and as the accused-appellant has committed heinous offence of rape upon a 7 years old girl and has also killed her by smothering, as such he deserves no leniency. Mrs. Archana Singh further submits that the dead body has been recovered on the pointing out of the accused-appellant. It is, therefore, urged that in the circumstances, the conviction and sentence awarded to the accused-appellant by the court below merits no interference.

17. We have examined the respective contentions as urged by the learned counsel for the parties and have perused the records of the present appeal including the lower court records.

18. The facts of the case, as have been noticed above, will go to show that the written report in respect of incident has been made by P.W.-1/informant after the entire incident occurred and the Police had already intervened and the dead body of the victim was recovered. The investigation has clearly revealed that the victim was a minor, who has been subjected to sexual assault and she has been killed by smothering thereafter. The autopsy report of the victim has been duly proved by Autopsy Surgeons, Dr. Bhasker Singh and Dr. Surya Prakash (P.W.-4 and P.W.-5) respectively. From the evidence led by the prosecution it is therefore, clear that the deceased/victim was subjected to sexual assault and she has been done to death thereafter. It is, therefore, clear that the death is homicidal.

19. The prosecution has alleged that the offending act has been committed by the accused-appellant and the evidence against the accused-appellant is primarily two folds. The evidence in first part is in the form of the statement of P.W.-1, who claims to have seen the victim in the close company of the accused-appellant; offered her toffee and biscuit; and later taken the victim with him. The statements of P.W.-2 and P.W.-3 supports the version of P.W.-1 but these two witnesses have themselves not seen the occurrence or the close company of the accused-appellant with the victim just prior to her death. The primary evidence on the first part is, therefore, of P.W.-1.

20. The second part of the evidence relates to the alleged recovery of the dead body of the deceased on the pointing out of the accused-appellant. The prosecution evidence on both these counts needs to be carefully examined in the present jail appeal in order to ascertain as to whether the prosecution has succeeded in establishing the guilt of the accused-appellant beyond reasonable doubt.

21. We have examined the statements of P.W.-1, who has stated that she came to her parents house i.e. Mohalla Ganj town Madiyahu Jaunpur nearly 4 to 5 days prior to the date of incident i.e. 27th January, 2016. She claims that there is a temple of Lord Shiva in front of her parents' house. The children of the locality used to play on the platform (Chabutara) within the premises of the temple. 7 year old daughter of P.W.-1 also used to play on the said platform. On the fateful day, the daughter of P.W.-1 was playing on the platform. Other children of the locality including Aryan, who is neighbour of P.W.-1, were also playing. P.W.-1 was seeing the children playing from her house. She has stated that at about 04:00 p.m. the accused-appellant was seen, who offered toffee and biscuit to her daughter and was caressing her and gradually took her with him. P.W.-1 did not pay much attention and was under the illusion that the accused-appellant must be playing pranks on her daughter. Meanwhile, P.W.-1 got busy with her household work and her attention was diverted from her daughter. Meanwhile, the accused-appellant took away her daughter by alluring her. After some time, when she did not find her daughter near the temple she informed P.W.-2 and P.W.-3 and all of them tried to locate the victim. P.W.-1 turned apprehensive against the accused-appellant and therefore, P.W.-1, P.W.-2 and P.W.-3 visited the house of the accused-appellant, who was not available there, which further strengthened her apprehension of some untoward incident by the accused-appellant. Ultimately after much efforts the accused-appellant was found in the premises of Shiv Chitra Talkies, Madiyahu. The brother of P.W.-1 i.e. P.W.-3 gave information of it to the Police. The Police came to the Talkies and inquired about the victim from the accused-appellant. During interrogation, he confessed that he lured the victim with wrong intention and took her to a room in Swami Vivekanand Inter College, Madiyahu; committed rape upon her; gagged her mouth on account of which she became motionless and ultimately died and he hide himself so that none could trace him. It has been then stated that the accused-appellant then took the Police and P.W.-1 to the Vivekananda Inter College Madiyahun, where the gate was locked and there was no peon available in the premises. The accused-appellant informed that there is a separate passage close to the boundary wall and in the adjoining room which has no door and window, lies the body of the victim. When P.W.-1 reached there in the presence of the police, it was a bit dark and in the light of the torch, the dead body of the victim was found on the pointing out of the accused-appellant. She has further stated that seeing dead body, she was convinced that the accused-appellant had seduced, raped and killed her. On the statement of P.W.-1 written report was scribed by P.W.-2 on the basis of which the first information report has been registered.

22. P.W.-1 has been cross-examined. She has stated that apart from the deceased/victim, she has two other sons, who are both younger to the deceased/victim. She has stated that the temple is at a short distance from her house and is visible. The distance between the temple and her house is 15 metres and in between there are four houses. Height of these houses are about 20 to 30 feets and are of single story. She has then stated that report was lodged soon after the dead body was recovered. In the cross-examination, she has disclosed that on the date of incident she was sitting on a cot in her room from where she could see her daughter. She has further stated that she does not know the direction of her house. She has then stated that there is a wide passage in front of her house and that passage leads to her house only. After walking for about 10 paces from house of P.W.-1, the passage turns to the right. She has admitted that this passage after moving 7 to 8 paces turns towards right and straightens after moving another 7 to 8 paces. The straight passage thereafter is about 15 to 20 paces whereafter the passage turns to the left and after going 25 to 30 paces leads to the temple where the victim was playing on the date of incident and she was sitting in her room watching her playing.

23. The statement of P.W.-1 with regard to situation of the temple is extracted herein-below:

"लाश मिलने के बाद पुलिस तुरन्त रिपोर्ट लिखी थी। घटना के दिन मैं अपने घर जमीन पर नहीं बैठी थी। रूम में खटिया पर बैठी थी। मेरे घर का मुहारा किधर है मुझे नहीं मालुम है। मेरे घर के सामने थोड़ा चौड़ा रास्ता है। वह रास्ता मेरे घर तक ही जाता है। मेरे घर से निकल कर 10 कदम चलने पर वह रास्ता दाहिने तरफ मुड़ता है कि नहीं मैं नहीं बता सकती।

यह कहना सही है कि वह रास्ता पुनः सात, आठ कदम चलने पर दाहिने मुड़कर पुनः सात आठ कदम चलने पर सीधा होता है। सीधा रास्ता लगभग 15, 20 कदम है। फिर बायें तरफ यह रास्ता मुड़ता है जो 25,30 कदम जाने के पश्चात मन्दिर पड़ता है जहां रानी घटना के रोज खेल रही थी। और मैं अपने कमरे में बैठी रानी को खेलते देख रही थी।"

24. In addition to above, P.W.-1 has also stated that the deceased had taken food at about 04.00 p.m. She has also stated that the intimation to Police about disappearance of her daughter was given to Police at 09:30 p.m.

25. P.W.-2 is the neighbour of P.W.-1 and has supported the prosecution case as he joined search of the victim after P.W.-1 informed that she is missing and the fact with regard to the alleged recovery of dead body on the pointing out of the accused-appellant has been verified by him. Not much has been attracted from this witness in his cross-examination. He has accepted that he came to know about the accused-appellant 10 to 15 days only prior to the date of incident. He has stated that often the accused-appellant used to come to the temple and sit there. He has also stated that he too used to sit at the temple in the evening.

26. P.W.-3 is the other witness of fact, who happens to be the brother of P.W.-1 and has joined the search after he came to know that the victim had gone missing. He has supported the prosecution case with regard to the recovery of the dead body of the victim on the pointing out of the accused-appellant. In his cross-examination he has stated that written report was given in the Police Station at about 07:00 p.m. whereafter he came to Shiv Talkies along with Police. He has stated that when he left to Shiv Talkies looking for the accused-appellant, a Constable was present. This witness has further stated that he came to know at about 10:30 p.m. in the night that the accused-appellant has confessed his crime and the Police came to the girls college at about 11:00 p.m. in the night. The distance between school and the temple is stated to be around 200 metres. This witness has also stated that there are about four houses between the temple and his house.

27. We have carefully examined the testimony of the prosecution witnesses and the first aspect that requires our attention is as to whether the prosecution witness P.W.-1 has actually seen the incident from her house in which the victim was lured by the accused-appellant.

28. The prosecution has not prepared any site plan showing the existence of the temple and the situation of the house of the informant/P.W.-1 so that it could be ascertained whether the two falls in the straight line of sight and it was possible for someone sitting in the house to have seen the victim playing at the platform of the temple or being lured by the accused-appellant, as is alleged by the prosecution.

29. Though P.W.-1 had stated that temple situates at a short distance from her house and is visible being at a distance of 15 metres but has admitted that there are four houses between the temple and her house. However, in the cross-examination she has admitted that there is a passage coming right upto her house and if one moves 10 paces it turns towards the right and after moving for about 7-8 paces this passage straightens and if one moved 15 to 20 paces further, the passage turns to the left and the temple situates about 25 to 30 paces thereafter. This statement of P.W.-1 clearly shows that the temple claimed to be situated in front of the house of P.W.-1 is not on a straight path. One has to go straight then turn right and again turn left and after moving for about 50 paces arrives at the temple. There are four houses situated between the temple and the house of the first informant/P.W.1.

30. We find it difficult to believe that in the above positioning of the house vis-a-vis the temple, it would be possible for anyone sitting in the room of the house to see the children playing at the temple when it was not otherwise on the straight line of sight. The prosecution version that P.W.-1 saw the accused-appellant offering toffee and biscuits to the minor victim who later lured her does not seem credible and reliable.

31. We otherwise find the prosecution version doubtful since P.W.-1 has stated that accused-appellant had bad image in the locality and therefore, the mother was expected to object to such allurement but no such objection was raised by the mother. P.W.-1 otherwise had come only for a few days to her parental house and as the accused-appellant was living in a different locality it was not clear as to how he could be identified by P.W.-1 when he is neither a friend of her family nor is related to her. The identity of accused-appellant apparently has been established by P.W.-3, who happens to be the brother of P.W.-1 and has stated that he found the accused-appellant coming and sitting in the temple only during the last 15 to 20 days.

32. The first part of the prosecution story that the first informant/P.W.-1 saw the victim in the close company of the accused-appellant, who lured her is therefore, not reliable on the basis of assessment of evidence available on record.

33. Coming to the second aspect relating to recovery of the dead body, we find that the absence of the victim was noticed by the informant/P.W.-1 who tried to locate her but failed. Her act of informing such absence to her brother and her close neighbour is therefore, natural and the three of them i.e. P.W.-1, P.W.-2 and P.W.-3 proceeded in search of the victim. The victim was not found nor the accused-appellant was at his home and ultimately could be located in the premises of Shiv Talkies. There is no difficulty in accepting the prosecution case on the second aspect upto this level.

34. The prosecution witnesses have stated that the information to police was given at this stage about the accused having been found in the Talkies premises. In the event such a report was given to police. It was expected that a report would be lodged in the matter or at least a missing report would be registered. None of this kind actually happened. The prosecution evidence is that the police personnels came to the premises of Talkies where the accused-appellant was present and on his interrogation, the accused-appellant made a confessional statement with regard the commissioning of the offence of rape and murder of the victim. This part of the prosecution evidence will have to be carefully scrutinised.

35. We find that neither any report had been lodged by then with the Police nor the accused-appellant was taken in custody when he allegedly made the confessional statement. The confessional statement was also not recorded at that stage nor was it possible to do so as no proceedings by then was registered and even the process of investigation had not commenced. As per the prosecution, the accused-appellant took them to the place where the dead body was lying and the recovery of dead body was made on the pointing out of the accused-appellant. It is only thereafter that the first information report has been lodged.

36. We have perused the original records which show that the first information report was actually lodged at 8:15 PM. In the absence of any first information report lodged no disclosure statement could be recorded of the accused-appellant nor any recovery memo could be prepared in respect of the dead body on the pointing out of the accused-appellant. Even the statement of the accused-appellant was recorded under Section 161 Cr.P.C. much later after the confessional statement was made leading to recovery of the dead body of the victim. The statement under Section 161 Cr.P.C. of accused-appellant has been recorded on 28th of January, 2016 while the alleged confession was made on 27th itself leading to recovery of the dead body. This confessional statement and the recovery was thus made even prior to the lodgement of first information report or the accused having been taken into custody. The alleged confessional statement as well as the recovery of dead body is thus not backed by any document prepared by the investigating officer pursuant to any first information report lodged in the matter or taking of accused in the custody. The confessional statement, therefore, would at best a disclosure made to police which would clearly be inadmissible by virtue of Section 25 of the Indian Evidence Act.

37. The recovery moreover is not made while the accused-appellant was in custody after lodgement of the first information report, therefore, the provisions of Section 27 of the Indian Evidence Act also would not come into play and the alleged recovery cannot be treated to be a legal evidence nor can it be read in evidence at the stage of trial against the accused-appellant. The records otherwise reveal that statement of accused-appellant was recorded under Section 164 Cr.P.C. in which he has categorically denied his involvement in the commissioning of offence and recovery of the dead body on the pointing out of the accused-appellant.

38. Learned counsel for the appellant has placed reliance upon the celebrated decision of the Apex Court in the case of Aghnoo Nagesia VS. State of Bihar reported in AIR 1966 SC 119 wherein the Apex Court has observed as under:

"..............We think that the separability test is misleading, and the entire confessional statement is hit by Section 25 and save and except as provided by Section 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.

We think, therefore, that save and except parts 1, 15 and 18 identifying the appellant as the maker of the first information report and save and except the portions coming within the purview of Section 27, the entire first information report must be excluded from evidence.

Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub Inspector stated that he arrested the appellant after he gave the first information report leading to the discovery. Prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was the in constructive custody.

............"

39. This Court in Criminal Appeal No. 2887 of 2018 (Ram Niwas vs. State of U.P. ) vide judgment and order dated 1st December, 2022 has also examined the plea of recovery of dead body on the pointing out of an accused without there being any disclosure statement or recovery memo prepared during the course of investigation. The recovery was held inadmissible.

40. We may also note the submission of the learned counsel for the accused-appellant that the plea of recovery of dead body on the pointing out of the accused-appellant otherwise cannot be read against him as the accused-appellant has not been confronted on this aspect at the stage of recording of his statement under Section 313 Cr.P.C. The statement of accused under Section 313 Cr.P.C. has been perused by us wherein 22 questions were put to him in the nature of incriminating material surfaced against him during the course of trial. None of the questions contains reference to the alleged recovery of dead body as being the incriminating material against the accused-appellant for recording of his statement under Section 313 Cr.P.C. Section 313 Cr.P.C.is not an empty formality and contains a substantive right in the accused to explain the circumstances arising against him at the stage of trial. Unless the incriminating material is specifically put to the accused for recording his statement under Section 313 Cr.P.C., the incriminating material itself cannot be read or relied upon against the accused for recording his conviction.

41. We, therefore, find substance in the contention of the learned Amicus Curiae that in the absence of there being any question put to accused-appellant in respect of alleged recovery of dead body such aspect could not have been relied upon against him.

In the case of Ram Niwas (supra) this Court also considered similar issue and observed as under in paragraph nos. 26 and 27:

"......

26. It is by now well settled that Section 313 Cr.P.C. vests an important right in the accused to explain the adverse circumstances against him appearing in the matter. The manner of putting question has also been commented upon by the Supreme Court and the practice of putting entire evidence against the accused in a single question has been deprecated on the ground that it curtails the right of the accused to specifically explain each distinct and separate circumstance that appears in evidence against the accused.

27. In a recent judgment of the Supreme Court in Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108, which has been relied upon by the counsel for the accused-appellant the Court has relied upon an earlier judgment in Naval Kishore Singh Vs. State of Bihar, (2004) 7 SCC 502 and observed as under:-

"9. It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. In Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was held to an essential part of a fair trial observing as follows :-

"5......The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence..."

42. Upon evaluation of the evidence led by the prosecution on the aforesaid two aspects, we find that neither the statement of P.W.-1 with regard to her having observed the victim being lured by the accused-appellant is found reliable nor the circumstance relating to recovery of dead body on the pointing out of accused-appellant can be read in evidence. The circumstance relating to recovery of the dead body is otherwise admissible in the absence of such incriminating material having been put to the accused-appellant for recording of his statement under Section 313 Cr.P.C.

43. The trial court although has referred to the testimony of the prosecution witnesses and has relied upon the recovery but the evidence has not been carefully examined on the above two aspects inasmuch as the possibility of P.W.-1 having observed the incident while sitting at her home on account of non-availability of straight line of sight has been noticed nor the inadequacy of evidence on the aspect relating to recovery of the dead body on the pointing out of the accused-appellant has been appreciated in the context of legal position referred to above. We are, therefore, of the view that the conviction and sentence of the accused-appellant cannot sustain the test of judicial scrutiny and therefore, the conviction and sentence of accused-appellant is rendered unsustainable in the eyes of law.

44. Consequently, this appeal succeeds and is allowed. The judgment and order of conviction and sentence dated 1st November, 2019 passed by the Special Judge (POCSO Act)/Additional Sessions Judge-VII, Jaunpur, in Special Sessions Trial No. 12 of 2016 (State of U.P. Vs. Deepak Jaiswal), arising out of Case Crime No. 266 of 2016 under Sections 376, 302, 201 I.P.C., Sections 3/4 POCSO Act and Section 7 Criminal Law Amendment Act, Police Station-Madiyahoo, District-Jaunpur against the accused appellants, is set aside. The accused-appellant is held entitled to benefit of doubt.

45. The accused appellant-Deepak Jaiswal who is reported to be in jail since 28th January, 2016 shall be released forthwith, unless he is wanted in any other case on compliance of Section 437-A Cr.P.C.

46. We record our appreciation for the able assistance rendered to the Court by Mr. Vindeshwari Prasad, learned Amicus Curiae, who would be entitled to his fee from the High Court Legal Service Authority quantified at Rs. 15,000/-.

47. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Jaunpur, henceforth, for necessary compliance.

(Shiv Shanker Prasad, J.)         (Ashwani Kumar Mishra, J.)
 
Order Date :- 9.1.2023
 
Sushil/-

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