Ram Babu vs State Of U.P. on 4 January, 2019

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Allahabad High Court

Ram Babu vs State Of U.P. on 4 January, 2019

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.) By way of instant Jail Appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 31.10.2012 passed in Sessions Trial No.380 of 2012, State Vs. Ram Babu s/o Bhilla @ Ram Sewak, arising out of Case Crime No.59 of 2012 for offence under Sections 363, 302, 201 IPC, Police Station- Loni, District- Ghaziabad, whereby the accused-appellant- has been sentenced to undergo 7 years' R.I. coupled with fine Rs.1,000/- for offence under Section 363 IPC; rigorous imprisonment of life coupled with fine Rs.1,000/- for offence under Section 302 IPC; and 5 years R.I. coupled with fine Rs.500/-under Section 201 IPC, respectively, and in default of payment of aforesaid fine, he will have to undergo six months simple imprisonment, under Sections 363 and 302 IPC and three months simple imprisonment for offence under Section 201 IPC. All the sentences to run concurrently.

Relevant to mention that by the same trial in Case Crime No.153 of 2012, under Section 25/4 Arms Act was also tried as Sessions Trial No. 466 of 2012 wherein the appellant- Ram Babu- has been acquitted.

Crux of the events as discernible from record particularly from perusal of the first information report indicates that the informant- Natthu Ram S/o Barati Lal, R/o Ghawara, Police Station- Gaurihar, District- Chhatarpur (Madhya Pradesh) presently residing in Ambedkar Colony, Police Stanton- Loni, District- Ghaziabad lodged a missing report at Police Station- Loni on 13.1.2012 at 10.45 P.M. regarding disappearance of his daughter Kumari Reena (hereinafter referred to as 'victim') aged about 6 years with allegations that his daughter was playing outside his house around 1.00 P.M. on 11.01.2012, but she did not return home. He made hectic effort for her whereabouts, but he did not succeed. Physical particulars of the victim were described as fair complexioned; about 3 feet in height, wore full sleeve sweater and clothes brownish trousers with white strips and blue scarf with little hair and round face, besides she was wearing slippers.

Request was made for lodging the missing report, whereupon, on the basis of aforesaid contents a missing report was entered at Serial No.59 of the GD of date 13.01.2012 at 10.45 P.M. at Police Station Loni, District- Ghaziabad.

Thereafter, on 14.01.2012, informant was informed by several villagers that the dead body of the victim is lying in mustard field, whereupon, the informant along with others arrived on the spot and identified the dead body to be that of his daughter- the victim. Then, he lodged the written report against present appellant- Ram Babu- with allegations that Ram Babu s/o Bhilla, aged about 22 years, is a distant relative of the informant, he (Ram Babu) came to informant's house in the afternoon of 11.01.2012 around 1.00 P.M. and inquired about the victim from his son- Rinku. After some time the victim also came back to home, then Ram Babu took his daughter with him and went away to a nearby shop where he purchased biscuit and toffee and went away with his daughter somewhere else. Till evening of 11th January, 2012, the victim and the accused- Ram Babu did not return home and search was made for their whereabouts, then information was given at the police station. They (the victim and the accused) were untraceable even after hectic search. Today on 14.1.2012 at about 8 A.M. few persons coming from the field informed that the dead body of victim was lying in a mustard field, whereupon, he along with other persons of the colony arrived on the spot and saw the dead body of his daughter. He was confident that Ram Babu has killed his daughter and has thrown away the dead body in the mustard field. Request was made for taking action.

On the basis of contents of this written report, Exhibit Ka-1, a case was registered against Ram Babu on 14.1.2012 at Case Crime No.59 of 2012, under Sections 364, 302, 201 IPC at 10.05 hours at police station- Loni, district Ghaziabad.

Entry of contents of written report was noted in the concerned check F.I.R., which is Ex. Ka-15. Relevant entries were made in the concerned G.D. at rapat no.59 at 10.05 hours on 14.01.2012 and a case was registered against the accused. Copy of aforesaid G.D. is Ext. Ka.-16.

Upon information being received the investigation ensued and the same was taken over by S.I. Gagendra Pal Singh (P.W.6). He along with S.I. Shivraj Singh (P.W.7) arrived on the spot and got the inquest of the deceased prepared by Shivraj Singh and got completed the inquest report around 12.00 noon on 14.01.2012, copy whereof is Exhibit Ka-6. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to send the dead body for postmortem examination for ascertaining the real cause of death. In this regard, relevant papers were prepared- like photonash (Exhibit Ka-7), challan dead body- police form-13 (Exhibit Ka-8), letter to Chief Medical Officer (Exhibit Ka-9) and specimen seal is Exhibit Ka-10. Inquest of these papers have been proved by S.I. Shivraj Singh (P.W.7). The dead body of the victim was sent to mortuary, Ghaziabad for autopsy. Dr. Sanjay Kumar (P.W.5) conducted the autopsy on the dead body of deceased on 14.01.2012 at 04.30 p.m, wherein he found the following ante-mortem injuries on her body:

(1) Skin & muscle on right side face along with nose absent size 7 cm x 7 cm, 5 cm away from right ear caused by animal bite.

(2) Contusion size 2 cm x 2 cm on right side neck 5 cm below from right ear.

(3) Contusion size 3 cm x 2 cm on left side neck 5 cm below from left ear. Subcutaneous tissue under injury nos.2 & 3 ecchymosed.

In the opinion of doctor, cause of death was asphyxia as a result of antimortem throttling. Duration of death was stated to be about one to two days. The post- mortem report is Exhibit Ka-2 on the record.

Record further reflects that the Investigating Officer inspected the spot after noting down the content of the Check FIR and after lodging of the case- at Case Crime No.59 of 2012, under Sections 364, 302, 201 IPC. The Investigating Officer recorded statement of various persons on 16.01.2012 and also noted contents of inquest report and postmortem examination report, vide Parcha No.3 dated 20.1.2012. He also searched for the accused, vide Parcha No.4 dated 24.1.2012. On 29.1.2012, on tip- off information received by him around 6 P.M. when he was patrolling in search of wanted criminals ahead of Loni Triangle Crossing in front of Inter College. A reference of this patrolling was made at Rapat No.43 at 1.45 P.M. It was informed that accused- Ram Babu- is likely to arrive at 'Do Number Bus Stand', therefore, the Investigating Officer along with the informer arrived at 'Do Number Bus Stand', after waiting for sometime the accused was sighted coming over there, where on the pointing out of the informer that the person is- accused Ram Babu- caught him around 6.15 P.M. at the bus stand and on inquiry being made, he spelled his name- Ram Babu s/o Bhilla. On search being made a knife was recovered from his possession. The police asked several passers- by to stand witness to the fact of arrest and search, but no one was prepared to be a witness. On being asked for license for keeping the knife, the accused could not show any authority, instead began to apologize. It was described in the memo of arrest and seizure that S.S.P. (concerned) had declared an award of Rs.5,000/- for accused Ram Babu. He (Ram Babu) was asked about the deceased- victim- when he told that he took her with him from the village of his brother-in-law (the informant) on 11.1.2012 in the afternoon to a shop for purchasing Biscuit and Toffee and took her away to a nearby mustard field situated at a distance of 600-700 yards for committing rape on her. When he laid her on the ground, she began to cry, whereupon he strangulated her to death. Thereafter, he ran away from the spot and engaged himself in 'Baledari' work. When he came to take his money, he was arrested.

The recovered knife was kept in a sealed cloth, and the accused- appellant Ram Babu was taken into custody for offence under Section 25/4 Arms Act and recovery memo- Exhibit ka-5 was prepared on the spot. It was registered as Case Crime No.153 of 2012 at P.S. Loni, Ghaziabad.

After the confession of the guilt by the accused, the case, already registered at case crime no.59 of 2012 under Sections 364, 302 IPC was converted under Sections 363, 302, 201, 376/511 IPC.

Thereafter, the Investigating Officer recorded statement of various persons and after completing the investigation on 3.2.2012 filed the charge-sheet- Exhibit Ka-4.

Consequently, the case was committed to the court of Sessions, wherefter numbering it as S.T. No.380 of 2012, under Sections 363, 376/511, 302, 201 IPC, it was transferred to the court of Additional Sessions Judge, (court no.10), Ghaziabad, who in turn heard the appellant and the prosecution on point of charge, after being prima facie satisfied with the case framed charges under aforesaid sections of the Indian Penal Code. Charges were read over and explained to the accused, who abjured the charges and claimed to the tried.

The prosecution, in order to prove guilt of the accused examined as many as 9 prosecution witnesses of whom Natthu Ram is P.W.1 (informant and father of the deceased), Chhotey Lal is P.W.2 (scribe of the written report), Santosh Kumar @ Bablu is P.W.3 (witness of fact), Guri is P.W.4 (mother of the deceased), Dr. Sanjay Kumar is P.W.5 (conducted postmortem on the cadaver of the deceased), Gajendra Pal Singh is P.W.6 (Investigating Officer), S.I. Shiv Nath Singh is P.W.7 (prepared inquest report), Sudhir Kumar is P.W.8 (Constable) and Vijendra Singh is P.W.9 (Constable).

No other testimony adduced.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he termed his implication false and stated that police arrested him from hospital and kept in captivity for three days, he is innocent.

The defence did not lead any evidence.

The learned Additional Sessions Judge, court no.10, Ghaziabad after appraisal of facts and considering the merit of the case and evaluating the evidence on record, returned aforesaid finding of conviction, whereby the accused-appellant- has been sentenced to undergo seven years' R.I. coupled with fine Rs.1,000/- for offence under Section 363 IPC; rigorous imprisonment for life coupled with fine Rs.1,000/- for offence under Section 302 IPC; and 5 years R.I. coupled with fine Rs.500/-under Section 201 IPC, respectively, and in default of payment of aforesaid fine, he will have to undergo six months simple imprisonment, under Sections 363 and 302 IPC and three months simple imprisonment for offence under Section 201 IPC.

Resultantly, this appeal.

Heard Sri Dharmendra Dubey, learned amicus curiae for the appellant, Km. Meena, learned AGA for the State and perused the record of this appeal.

Sri Dharmendra Dubey, learned amicus curiae has vehemently and comprehensively engaged attention of this Court to the various particular facts- viz a viz- attendant circumstances of the case and has tried to persuade that this case is an example of police high handedness and false accusation by the first informant. The entire case is admittedly based on circumstantial evidence. He submitted that this is a case of no evidence against appellant Ram Babu. In nutshell, he submitted that there is no proof of 'last seen' theory i.e.- that anyone infact saw the deceased in the company of accused on 11.1.2012 around 1.00 P.M. The witnesses of fact are tutored and partisan witnesses. Their testimony on the face is self contradictory. It is an admitted fact that after disappearance of the victim, a missing report was lodged on 13.1.2012 and record shows that on 11.1.2012, the informant had already been told about the involvement of accused Ram Babu in taking away the daughter of the informant, but the missing report does not whisper/spell any such fact, instead the missing report dated 13.1.2012 does not create any apprehension about the involvement of any specific person, who might have caused disappearance of the deceased on 11.1.2012. Arrest of accused was manipulated on 29.1.2012. No such arrest was infact made and the factum of arrest is not corroborated by any independent testimony or source and the witnesses of arrest of the accused are only police personnels.

The wholesome testimony on record does not inspire confidence and it lacks consistency. The trial court while considering merit of the case has woefully failed to assess and evaluate the testimony on record, qua the attendant facts and circumstances of the case, and it has recorded erroneous and perverse finding of conviction based on surmises. Prosecution has failed to prove its case beyond reasonable doubt.

Learned AGA has supported the findings of conviction and the sentence awarded against Ram Babu and submitted that all the links in the chain of circumstances are intertwined and make a complete chain so as to exclude every hypothesis of innocence of the accused and invariably lead to only conclusion that it was the accused and accused alone who committed the crime. Contradictions wherever appear are minor. Case has been proved beyond reasonable doubt.

Considered the rival submissions and also considered rival claims, in the light of above, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove its case beyond reasonable doubt under the aforesaid charges under sections 363, 302, 201 of Indian Penal Code?

Before we advert to the finding on merit, it would be relevant to take note of certain factual and circumstantial aspects of this case. As per the story set up by the prosecution regarding disappearance of the victim on 11.1.2012 and her consequential death it is admitted position that it is a case based on circumstantial evidence. No one witnessed the actual offence of murder of the victim.

Next, in the matter of cases based on circumstantial evidence, the three central points are of vital importance:-

First- the 'Motive' for committing the offence.

Secondly- the 'Last Seen Theory', if context so requires as is the case in the present case in hand.

Thirdly- 'consistency in the various links of the chain of circumstances is to be established in such a way as to exclude every hypothesis of innocence of the accused and lead to unescapable conclusion that it was the accused and accused alone who committed the offence.' Various prosecution witnesses of facts have been produced to prove the aforesaid vital aspects regarding point of 'Motive' behind the commission of the crime in question and the 'Last Seen Theory'- but the record and the established circumstances of this case, when addressed on merit, take us to the conclusion that the evidence on the point of 'motive' and 'last seen theory' is woefully wanting in this case, for which, none but the prosecution witnesses themselves are to be blamed and the various links in the chain of circumstances are hopelessly missing leaving the chain in complete.

After considering the entire testimony of the informant- Natthu Ram P.W.1- we are in a position to record our appreciation of the contents of the missing report dated 13.1.2012 and its import. It would be pertinent to take note of relevant testimony of Natthu Ram P.W.1, which exposes in inherent concealment and improvement made by this witness (P.W.1) regarding relevant factual aspects and the natural circumstances occurring between the period commencing from 1.00 P.M. on 11.1.2012 upto 13.1.2012- at 10.45 P.M.- that is to say- the factum of disappearance of the daughter of the informant around 1.00 P.M. on 11.1.2012, till the lodging of the missing report at 22.45 hours on 13.1.2012 at police station- Loni, district Ghaziabad. As per his testimony (P.W.1), emerging in examination-in-chief, he has testified to the ambit that the accused- appellant Ram Babu- who is his distant relative- came to his home and asked his son Rinku about whereabouts of the victim and in the meanwhile, the victim also arrived over there. Accused- appellant Ram Babu took away with him his daughter (victim) for purchasing biscuit and toffee, but his daughter did not return home till evening (of 11.1.2012). Then, in his cross-examination, he has testified to the magnitude that on 11.1.2012 he was not present at his home when Ram Babu came to his home. Rinku (elder son of Natthu Ram), aged about 9-10 years, and his wife were present at home. He came back to home around 9 P.M. (on 11.1.2012), when only he came to know about the fact that Ram Babu had taken away his daughter in the afternoon, then he lodged the missing report at police outpost- Banthala on 11.1.2012. Except this bald statement as above, there is no other testimony worth any sort, which may shed light on fact that the missing report was infact lodged on 11.1.2012 and that, too, at police outpost Banthala. Admittedly, record proclaims that the missing report was lodged on 13.1.2012, which is an admitted fact and it was lodged at GD No.59 at 22.45 hours at police station- Loni, District Ghaziabad, which contained description to the import that informant's daughter aged about 6 years was playing outside the informant's house around 1 P.M. on 11.1.2012, but she did not return. The informant made hectic search for her, but could not know her whereabouts. Identifying Physical description of the victim was also given in the missing report and it was requested that missing report be lodged, however, name of accused Ram Babu by way of apprehension does not find mention in this missing report. This omission is quite surprising. Non mention of the name of Ram Babu in the missing report (given at Police Station on 13.1.2012) is particular aspect of this case and this aspect assumes greater importance, in view of allegations made in the written report (Exhibit Ka-1), which infact was lodged on 14.1.2012 at police station- Loni at 10.05 A.M., vide Rapat No.21 at Case Crime No.59 of 2012, under Sections 364, 302, 201 IPC, after the dead body of the victim was discovered. Bare perusal of the same, describes things in a particular way to the ambit that accused Ram Babu s/o Bhilla took away informant's daughter on the pretext of buying biscuit and toffee and killed her and threw away the dead body in a mustard field. The contents of Exhibit Ka-1- the written report- make it explicit that Ram Babu allegedly came to the house of the informant on 11.1.2012. He inquired about the victim from informant's son Rinku and in the meanwhile, victim also arrived over there, then Ram Babu took away the victim with him to a nearby shop, bought biscuits and toffees and went away from there but did not return (till evening), therefore, information of the same was given at the police station and search was made for his missing daughter by the informant. After hectic search the victim and the accused-appellant Ram Babu were not traceable. On 14.1.2012 in the morning around 8 A.M. some persons coming from the field came to the informant's house and told him that the dead body of the victim is lying in a mustard field, whereupon, the informant along with several persons of the colony arrived on the spot, where he saw the dead body of his daughter in the mustard field. The written report contained description that the informant was fully confident that Ram Babu has killed his daughter and threw away her body in the mustard field.

At this stage, we have occasion to scrutinize the testimony of Santosh Kumar @ Bablu P.W.3- the Shopkeeper- from where biscuits and toffees were allegedly purchased by Ram Babu on 11.1.2012. He has testified in his examination-in-chief that it was around 1 P.M on 11.1.2012, he knows informant Natthu Ram (P.W.1). Ram Babu is relative of Natthu Ram, he came to his shop along with three children and purchased toffees and biscuits for Rs.20/-. Son and daughter of Natthu (P.W.1) were accompanying Ram Babu (accused-appellant), but he did not recognize the third child. Ram Babu went away after buying toffees and biscuits. He does not know to what destination he went to in the evening. When Natthu Ram came to him and inquired about the same, then he told Natthu Ram all about it that he saw Ram Babu taking away the victim.

We may pause here for a moment and scrutinize the above piece of testimony of P.W.3 qua the attendant facts and circumstances of the case.

As per testimony of Satosh Kumar @ Bablu P.W.3, it is obvious that on the very same day i.e.- on 11.1.2012, the matter was inquired into by the informant- Natthu Ram (P.W.1)- with this witness when he told the informant that Ram Babu took away his daughter with him, but he is not sure about the place as to where he went to. If it was exactly so, then it is obvious that the missing report, which was lodged on 13.1.2012, is absolutely silent about any such description and involvement of Ram Babu in taking away the victim with him. It means Santosh Kumar @ Bablu P.W.3 never saw Ram Babu, or even if he sighted Ram Babu at his shop, he was not able to recognize Ram Babu and he never told this specific fact to informant Natthu Ram that- Ram Babu took with him his daughter. If information regarding disappearance of the victim with Ram Babu was given on 11.1.2012 itself then the missing report which was given at Police Station Loni on 13.1.2012 at 10.45 P.M., must have spelt/included the name of Ram Babu in its description to the ambit that P.W.3 had informed the informant (Natthu Ram) about involvement of Ram Babu in taking away the victim. Not only this, but also the testimony of Santosh Kumar @ Bablu P.W.3 as on page no.33 of the paper book in the cross-examination explicitly discloses fact that he did not know Ram Babu prior to his examination- as a witness in the trial court. In the last but two lines of page 33 of the paper book, he has specifically stated, in his cross-examination, that the accused (Ram Babu), who is present in court, was told to be Ram Babu, the day before yesterday by Natthu Ram (the informant and P.W.1). This piece of testimony exposes falsity of claim made by both- Natthu Ram P.W.1 and Santosh Kumar @ Bablu P.W.3- that Ram Babu was initially involved in causing disappearance of the victim on 11.1.2012. It means these two witnesses (P.W.1 and P.W.2) of fact are not stating the truth and Santosh Kumar @ Bablu P.W.3 cannot be treated to be witness of last seen theroy set- up by the prosecution. His testimony for aforesaid reason does not inspire confidence and the same is not worthy of credit.

Admittedly, Natthu Ram P.W.1 was not at home, when Ram Babu allegedly arrived at his home and took away his daughter with him on 11.1.2012 around 1.00 P.M. While scrutinizing testimony on record we come across testimony of Gauri P.W.4 wife of Natthu Ram and mother of the victim. As per her testimony recorded in examination-in-chief, she has categorically stated that at that point of time when Ram Babu took/went away with her daughter, she was busy inside her house in domestic work and she was told about this act of taking away of her daughter (victim) by the accused Ram Babu by her son Rinku, after he came over to her inside the house and told that her daughter was taken away by accused Ram Babu (Mama).

Here, we may observe that as per testimony of P.W.3 (Santosh Kr. @ Bablu) even Rinku accompanied the victim and Ram Babu when they came to his shop. But here in the circumstance Rinku is present at his home whereas Ram Babu had left the house along with the victim. It means Rinku did not accompany Ram Babu and the victim while Ram Babu went to the shop of P.W.3 on 11.1.2012 around 1.00 P.M. Thus, P.W.4 cannot be treated to be a witness of 'last seen' theory in this case.

Her testimony on the point of last seen theory becomes hearsay evidence and cannot be treated to be clinching testimony as such, because its source is routed through the agency of Rinku- her son- and she directly did not witness the very act of taking away of the victim by the accused.

It is an admitted fact situation that Rinku, son of Natthu Ram and the brother of the victim was aged about 9-10 years at the time of the occurrence and he has not been produced before the trial court for examination as a witness. Therefore, the fact of last seen theory mooted and suggested by the prosecution become dubious, as there is no direct consistent testimony on record, which may establish fact of last seen theory.

The central point of this case being 'last seen' theory has not been proved by cogent evidence or circumstance explicit or implicit, by the prosecution witnesses and it appears that the witnesses have been tutored and some prior deliberation took place prior to the lodging of the FIR Exhibit Ka-1. The testimony of the three witnesses of fact say- P.W.1 Natthu Ram, P.W.3 Santosh Kumar and P.W.4 Gauri is not worthy of credit and does not inspire confidence.

Now, we switch over to another vital aspect of this circumstantial case, say the 'motive' behind committing the offence. It is surprising that the statement of accused Ram Babu, which was a confessional statement made to the police at the time of his alleged arrest on 29.1.2012- that he wanted to commit rape on the victim- can be taken to be the only evidence for establishing 'motive' behind the offence in question. Apart from the confessional statement of the accused made to the police- say- the Investigating Officer Gajendra Pal Singh P.W.6 on 29.1.2012 when he was allegedly arrested by the police at 'Number Two Bus Stand'- there is nothing concrete establishing point of 'motive' and there is no circumstance either, which may also allude to the inference that the crime had its seed in the shape of motivating force for committing rape on the victim.

At this stage we may conveniently examine, the veracity of the fact of arrest of the accused on 29.1.2012. Fact of arrest of accused on 29.1.2012 by the police stands exposed in view of factual and circumstantial circumstance of this case that no independent witness stood test to the fact of arrest and recovery as entailed in the memo of arrest- Exhibit Ka-5. There are specific provisions in the criminal procedure code for taking action against those persons, who refuse to obey lawful direction of the Police Officer particularly for being witness to the fact of arrest and seizure. Exhibit Ka-5- the arrest and recovery memo does not mention name of any public witness, as such. Arrest of Ram Babu was effectuated on 29.1.2012 at 6.15 P.M., but all the public witnesses refused to be witness to the fact of arrest. Place of arrest was bus stand mostly frequented by the public, by and large. It was not an isolated or deserted place. We may also observe that confessional statement made to a police officer is not admissible and relevant and cannot be read against an accused. Therefore, the motive behind commission of the offence is also not proved.

Upon careful scrutiny of the testimony of Chhotey Lal P.W.2, the scribe of this case, it transpires that he wrote the written report lodged on 14.1.2012, but his testimony in his cross- examination on page- 30 of the paper book is indicative of fact that some police personnel were also there when the dead body was taken to the road and then the report was lodged. This report as per his testimony was scribed around 7 A.M. (on 14.1.2012). On page 31 of the paper book, he has testified that the police personnel had gone in the meanwhile. As per testimony of Shiv Nath Singh P.W.7, who prepared the inquest report on 14.1.2012, he received the information around 7.30 A.M. (on 14.1.2012) at police outpost and reached to the spot at 7.45 A.M. and we notice that the the written report was lodged at the police station Loni, Ghazibad on 14.1.2012 at 10.05 hours. It means that prior to the lodging of the written report (Exhibit Ka-1) and at the relevant point of time, when the report was being scribed by Chhotey Lal P.W.2, the police personnel were present over there, which aspect works as a prticular circumstance and does not rule out involvement and deliberation of the police with the informant prior to the lodging of the FIR on 14.1.2012. Testimony of P.W.2 is specific that the report was scribed after consultation with all persons present over there.

Not only this, but also we have specific testimony of Dr. Sanjay Kumar P.W.5- who conducted postmortem examination on the dead body of the deceased at 4.30 P.M. on 14.1.2012. He has been cross-examined specifically on points of signs of sexual assault, if existing on the body of the deceased, whereupon, he has testified that he examined private parts of the deceased, but he did not find any abnormality, and did not notice signs of sexual assault, therefore, on the point of committing sexual assault, the testimony of the doctor also does not support claim made by the prosecution, that the very motive behind the incident was the intention to commit rape on the victim.

Perusal of the postmortem report, Exhibit Ka-2, and particularly the entry made against column-3 to 5 regarding private part show as 'Nothing Abnormal Deducted (NAD)'. Therefore, combined reading of testimony of Dr. Sanjay Kumar P.W.5 and the entries made in the postmortem examination- Exhibit Ka-2, are self explanatory of fact that the version of sexual assault cannot be anticipated to have been caused or was ever attempted on the victim.

In the backdrop of aforesaid discussion, we are fully convinced that the prosecution has not been able to establish all the vital links in the chain of various circumstances in the shape of 'last seen' theory, the 'very motive' behind the crime and the chain of circumstances remained incomplete, as such any hypothesis consistent with the guilt of the accused can not be raised against him.

On such unworthy evidence adduced by the prosecution and in view of the aforesaid discussion, while considering the facts and various circumstances of the case we notice vulnerability of the prosecution case exposed to the extent that the FIR does not appear to be natural outcome of its maker for the reason that in case, the complicity and presence of accused Ram Babu, if already noticed on 11.1.2012 around 1.00 P.M. both at the house and at the shop, then how and why the missing report did not spell name of Ram Babu and fact of his presence as the person, who took away the victim with him, whereas it is admitted fact that the missing report was lodged on 13.1.2012 at 10.45 at P.S. Loni- Ghaziabad.

At the cost of repetition we may ingeminate that Natthu Ram P.W.1 admittedly was not seen at home at the time of alleged act of taking away of the victim by the accused. Similarly, Gauri P.W.4 (mother of the victim deceased) was also inside her house when Ram Babu allegedly took away the victim with him. Rinku s/o Natthu Ram (P.W.1) told her about Ram Babu taking away the victim, but Rinku was not examined and produced before the trial court by the prosecution for reasons best known to it. The scribe Chhotey Lal P.W.2 admits facts that at the time when the dead body was taken on the road, it was around 7.00 A.M. when he scribed the report- Exhibit Ka-1- the police also accompanied him, therefore, he at least admits presence of police personnel on the spot where dead body was taken much prior to the lodging of the report on 14.1.2012 at 10.05 A.M. at Police Station- Loni. S.I. Shivnath P.W.7 has admitted fact that he received information around 7.30 A.M. and arrived on the spot at 7.45 A.M. on 14.1.2012. Therefore, arrival and presence of the police prior to the lodging of the FIR is an admitted fact siuttion which in turn is indicative of fact that possibility of police deliberation was always there prior to the lodging of the FIR.

Therefore, the things appear to have been manipulated and tried to be orchestrated in a way to give the prosecution story a compact stream line picture trying to make prosecution version consistent, though our careful scrutiny of fact, evidence and vital circumstances of this case exposes vulnerability of this claim made by the prosecution.

It is trite law and established principle of criminal jurisprudence that prosecution would have to stand on its own leg and would have to establish its charge against accused beyond reasonable doubt. In this case, the charges have not been proved beyond reasonable doubt.

In this case, the evidence is in utter disarray and the same cannot be treated to be worthy of credit from any angle. Consequently, witnesses of fact appear to be tutored one and their testimony is testimony of a partisan witness and full of improvement.

Trial court while appraising facts and circumstances of the case and evaluating evidence on record, took erroneous view and based its conclusion on unfounded material and circumstances of the case that the various links in the chain of circumstances are complete, which finding, in view of above scrutiny, appear to be erroneous and perverse because the various links in the chain of circumstances are incomplete.

Consequently, the judgment and order of conviction dated 31.10.2012 passed in Sessions Trial No.380 of 2012, State Vs. Ram Babu s/o Bhilla @ Ram Sewak, arising out of Case Crime No.59 of 2012 for offence under Sections 363, 302, 201 IPC, Police Station- Loni, District- Ghaziabad being erroneous is hereby set aside, and this appeal is allowed. Accused-appellant is exonerated of all charges.

In this case, the accused-appellant is in jail. He be set at liberty forthwith, if he is not wanted in connection with any other case. However, he shall have to furnish surety bonds in compliance with Section 437-A Cr.P.C.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Dt.04.01.2019 Raj

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