Narendra @ Kallu vs The State Of U.P. on 3 December, 2022

[Cites 11, Cited by 0]

Allahabad High Court

Narendra @ Kallu vs The State Of U.P. on 3 December, 2022

1. This appeal is against the judgment and order of the learned Sessions Judge, Ramabai Nagar dated 16.11.2011 whereby the appellant has been convicted under Sections 302, 376 and 201 I.P.C. and sentenced as follows : (i) imprisonment for life as well as fine of Rs.20,000/- under Section 302 I.P.C.; (ii) imprisonment for life as well as fine of Rs.20,000/- under Section 376 I.P.C. and (iii) seven years RI as well as fine of Rs.5,000/- under Section 201 I.P.C. All sentences to run concurrently.

2. Considering the nature of the offence, we deem it appropriate to mask the identity of the victim and her family therefore, wherever required they have been assigned a pseudonym or are described by their witness number.

INTRODUCTORY FACTS

3. On 10.03.2010 at 7.20 a.m. a written report (Exb. Ka-1), scribed by VKR (not examined), signed by PW-1, the father of the victim, was submitted at police station Shivrajpur, district Kanpur Nagar giving rise to Case Crime No.84 of 2010 in respect of which, chik FIR (Ex. Ka-3) and GD entry (Ex. Ka-4) was made by PW-5. In the written report it was alleged that at 7.30 p.m. on 09.03.2010 the victim, who is aged seven years, was noticed by RK (not examined) and informant's brother (PW-2) in the company of the accused-appellant going towards the brick kiln; the victim did not return; a search for the victim was made in the night but the victim could not be found; and next day morning (i.e. 10.03.2010), at about 6.00 a.m., body of the victim has been found at the brick kiln. By expressing suspicion that the accused-appellant committed rape and murder of the victim the FIR was lodged. Pursuant to the report, at about 11.00 a.m., on 10.03.2010, inquest was conducted of which inquest report (Exb. Ka-9) was prepared by PW-7 and the body was sent for autopsy. The autopsy was conducted on 10.03.2010 itself. The autopsy report prepared by PW-3 describes the body and the injuries, etc noticed as follows:

(a) Age : about seven years.

(b) Time since death : one day.

(c) External examination :-

Average built; eyes closed; tongue protruded; face, lips and nails cyanosed. R.M. present in both extremities. P.M. staining on whole back, buttock and thigh; mud present in head, hair, face and scalp.

(d) Ante Mortem injuries :-

(i) Multiple abraded contusion in 11 cm x 3 cm area on front of neck and right lateral and left lateral part of neck 4 cm below chin. Ecchymosis TN present. Base of abrasion is brownish. Fracture of hyoid bone is present;

(ii) Vagina lacerated. Edges are swollen and bleeds to touch. Two fingers are easily introduced, blood oozing from vagina, clotted blood present inside cavity.

(e) Cause of death :

Asphyxia as a result of ante mortem throttling.

4. On 11.03.2010, vide CD Parcha no.2, the appellant was arrested by PW-7 and on the basis of his confessional statement and pointing out following articles were recovered from his house : (i) a bed spread (Bichhona) which was spread over a wooden plank kept in the room; (ii) a quilt /woollen loyi having blood spots; (iii) a Dhoti alleged to have been used to wipe off semen stains; and (iv) underwear, which he was wearing, alleged to be having blood and semen stains. A seizure memo (Exb.Ka-7) was prepared to reflect seizure of said articles. It be noted that the two witnesses of the seizure who had signed on that seizure memo were not examined during the course of trial.

5. During the course of investigation, statement of the informant (PW-1) was recorded on 10.03.2010 and, later, on 26.03.2010 his clarificatory statement was recorded. In between, on 12.03.2010 statement of PW-6 was recorded who disclosed about a confession being made to him by co-accused Awadhesh @ Ankaj, who died in an accident on 14.03.2010 of which entry was made on 15.03.2010 vide CD Parcha no.4. The statement of PW-2 was recorded on 27.03.2010 and on 08.04.2010 statement of RK (not examined) was recorded. On 12.04.2010, statement of inquest witnesses was recorded. On 29.04.2010 statement of PW-4 (mother of the victim) was recorded and the seized articles were sent for forensic examination. Thereafter, charge-sheet was submitted. On the basis of charge-sheet, on 26.08.2010, the trial court framed charge of offences punishable under Sections 376, 302 and 201 I.P.C. against the accused-appellant. The appellant denied the charges and claimed trial.

PROSECUTION EVIDENCE

6. During the course of trial, the prosecution examined as many as seven witnesses. PW-1, PW-2, PW-4 and PW-6 are witnesses of facts; PW-3 conducted autopsy of the cadaver; and PW-5 was the person who made GD entry of the written report and prepared chik FIR. PW-7 is the Investigating Officer. A forensic report (Ex. Ka-17) in respect of the clothes etc of the deceased and articles seized vide Ex. Ka-7 was also obtained and produced. As per the forensic report (Exb. Ka-17), human blood was found on the knickers and the vaginal slide of the deceased-victim; no blood was found on the skirt, shirt, jersey and T-shirt of the victim; and human sperm was found only on the knickers of the victim. But no sperm was found on the skirt, shirt, jersey, T-shirt and vaginal slide of the victim. It be also noted that neither blood nor semen/ sperm could be noticed on the articles seized vide Ex. Ka-7 i.e. (i) bed spread (Bichhona) allegedly recovered from the room of the accused; (ii) quilt /woollen loyi allegedly recovered from the room of the accused; (iii) Dhoti alleged to have been used by the accused to wipe off semen stains and recovered from his room; and (iv) underwear, which he was wearing when arrested. What is important is that there was no DNA profiling of the blood/sperm found as to match it with the accused-appellant.

7. We shall now proceed to notice, in brief, the oral testimony of the prosecution witnesses.

7 (i) PW-1 - He is the informant and father of the victim. In his statement-in-chief, he stated that at the time of the incident the victim was aged about seven years; that the victim, on 09.03.2010, at about 7.30 p.m., was playing near the temple, she used to often go to the temple to get Prasad; at the temple, father of the accused-appellant used to do Puja and distribute Prasad but, on account of injury, appellant's father had not been doing Puja for last few days therefore, in his place, the appellant used to sit there and distribute Prasad; that when the victim did not return home from the temple, a search for her was made by him and his family members in the evening itself, at about 9.00 p.m.; during search, PW-1's brother, namely PW-2, and RK informed PW-1 that about an hour ago, they saw the accused-appellant taking the victim to his house; upon getting the above information PW-1 went to the house of the appellant who was found in a drunken state; when the appellant was asked about the victim, the appellant informed them that the victim did come but has gone back; thereafter, hectic search for the victim was made whole night and next day morning, the body was found at M.S. Brick kiln with blood stains on clothes. The written report was shown and read out to PW-1, he admitted that it was scribed by VKR upon which he had put his signature after understanding its contents which were read over to him by the scribe. PW-1 stated that it was this very report which he got scribed from VKR and lodged at the police station. The said report was marked as Exb. Ka-1. He also stated that after the report was lodged, the Investigating Officer had come to the spot and had prepared inquest report. He confirmed that the Investigating Officer had recorded his statement.

During cross-examination, PW-1 admitted that at the time of the incident he was at his stall from where he vends eggs etc.; his daughter (victim) had gone with other children to the temple where she was playing with 6 -7 children. He stated that the house of the accused-appellant is about 30 meters away from the temple and in between the temple and the house of the accused there are houses both sides. He stated that there is no fixed time for distribution of Prasad in the temple. Ordinarily, evening prayers are offered in the temple at about 9.00 p.m. and Prasad is distributed after Aarti. He admitted that Prasad was being distributed by uncle of the appellant, who is the Pujari of the temple and does Puja there. PW-1 stated that on the date of the incident, at about 8.00 pm he received information that the victim is missing; as soon as he got the information, he left his stall and went in search of the victim; that search continued up to 2 to 2-1/2 hours post midnight. He stated that during the course of search PW-2 and RK had informed him that the victim was seen with the appellant. He admitted that he gave an oral report to the police at about 11.00 pm that the victim is missing. He stated that when he went to the police station to give information about his daughter having gone missing, he did not inform the police that the victim was seen / noticed with the accused-appellant, as he had no evidence. He admitted that he himself did not notice the victim being taken away by any one. He admitted that Pujaris at the temple have dispute with each other and that he has relationship with all the Pujaris there. He admitted that the elder Pujari was appellant's father who was no longer there and now the appellant's uncle is the Pujari of temple. He stated that he has no knowledge about any dispute between the appellant's father and uncle or other Pujaris in respect of the temple. He denied the suggestion that he has falsely implicated the appellant on account of the said dispute between Pujaris.

7. (ii) PW-2 - He is the brother of PW-1. PW-2 stated that he works as a hawker and has a ground nut vending stall. He stated that the body of the deceased was found on 10.03.2010 at 10.00 a.m. at MS Brick kiln. In respect of the incident he stated that, on 09.03.2010, while he was vending from his stall, at about 7.30 p.m., he saw the accused-appellant taking the victim to his house. He stated that this was also witnessed by RK. PW-2 stated that this information was given by him to his brother PW-1. PW-2 also stated that he and his brother went to the house of the appellant to enquire about the victim at about 9.00 p.m., who told them that the victim after having Prasad had left. PW-2 stated that the reputation of the appellant is not good. He used to tease girls.

During cross-examination PW-2 stated that the house of the appellant is about 25-30 meters away from the temple; that he knows the appellant for last 10-15 years; that PW-2's house is in front of the temple, about 10-15 meters away; that at the time of the incident there was only one Pujari at the temple, named X. X used to do Puja and distribute Prasad. The appellant was also Pujari there. He stated that at the time of the incident, the appellant was not the Pujari but he used to wander there and that prior to X, the father of the appellant was the Pujari but, on account of injury, X started doing Puja since 2-2 1/2 months before the incident. PW-2 stated that in the temple Aarti is done two times; one in the morning at about 5.00 a.m. and the other in the evening at 8.30 p.m. He stated that at the time of Aarti, he did not use to visit the temple and he also did not visit the temple on the date of the incident while there was Aarti. He stated that the morning Aarti was done by X and the evening Aarti was also done by X. He saw X doing evening Aarti from the door of his house. He stated that Prasad was being distributed after Aarti. After the evening Aarti, when Prasad is distributed, a lot of people gather to collect the Prasad. He stated that on the date of the incident, evening Aarti was completed by 9.00 p.m. and thereafter Prasad was distributed. He stated that at the time of the Aarti, on that day, X was there. On further cross-examination, PW-2 stated that on the date of the incident he had put his stall; to put his stall he left his house at about 9.00 a.m. in the morning and was there up to 8.30 p.m.; that ordinarily his stall continues up to 9.00 p.m. but, on the date of the incident as he received information about his niece missing, he returned earlier. He stated that RK used to visit the shop of his uncle, which was at roadside; on the date of the incident, RK visited his uncle's shop. PW-2 further stated he and his brother (PW-1) jointly went to the house of the appellant in search of the victim and they noticed the appellant in a drunken state. PW-2 stated that he also went with his brother to give the missing report and along with them, the wife of PW-1 was there. In respect of the time when they visited the police station, he stated that the time must be around 9.00 p.m. On further cross-examination, he stated that after the body of the deceased-victim was found in the morning at about 7.00 a.m., they had gone to inform the police. He denied the suggestion that he did not see the accused-appellant in the company of the victim and that RK was not with him. He also denied the suggestion that he has good relations with the uncle of the appellant, who is currently Pujari of the temple and, therefore, at his behest, he has falsely implicated the appellant.

7. (iii) PW-3 He is the autopsy surgeon who proved the autopsy report and the contents thereof, which we have already noticed above.

7. (iv) PW-4 The mother of the victim-deceased. PW-4 stated that on the date of the incident, the victim was playing outside the temple at about 7.00 p.m. and near the temple she saw the appellant. She stated that after the victim could not be found a search for her was made and they had also gone to inform the police at around 11.00 p.m. in the night. She gave the description of the clothes which the deceased was wearing on the date of the incident.

During cross-examination, PW-4 stated that she did not see the victim going with the appellant but she saw the appellant standing near her at the temple. She clarified that the time when her daughter had gone to play near the temple, no Prasad was being distributed. She denied the suggestion that she has no knowledge of the incident and that she has not witnessed anything. She also denied the suggestion that she is making the statement on the suggestions made to her by her husband and Devar.

7. (v) PW-5 The police constable, who made GD entry of the written report vide Report No.15 at 7.20 a.m. of which copy was produced and marked as Exb. Ka-4. He also proved the preparation of chik FIR which was marked as Exb.Ka-3. During cross-examination, he stated that in his presence the Investigating Officer had not recorded statement of any witness. He denied the suggestion that the GD entry was not made at the time it is purported to be.

7. (vi) PW-6 He stated that on 10.03.2010 at about 11.00 a.m. Pankaj @ Awadhesh called him on telephone and stated that he and the appellant have jointly committed the crime and had thrown the body at M.S. brick kiln.

Note : As this witness has not given any direct testimony against the appellant and the co-accused, whose confession he has deposed about, was not put to trial, we do not propose to notice his statement made during the cross-examination.

7. (vii) PW-7 The Investigating Officer (I.O.). He proved the various stages of investigation including preparation of site plan (Ex. Ka-5) from where the body was recovered and the site plan (Ex. Ka- 8) from where items were recovered vide Ex. Ka-7. PW-7 stated that from the skirt of the victim some Churan (powder) and two rupee coin was recovered of which he prepared a memo which was marked Exb. Ka-6. He stated that on 11.03.2010 he arrested the accused, recorded his statement and recovered articles of which he prepared seizure memo Exb. Ka-7 (noticed above). He also produced the recovered articles which were marked material exhibits. He stated that on the date of registration of the FIR he recorded the statement of the informant and on 12.03.2010 he received information from PW-6 regarding extra judicial confession made by co-accused Awadhesh who, later, met with an accident and died. He stated that he recorded a clarificatory statement of the informant on 26.03.2010. Thereafter, on 27.3.2010, he recorded the statement of PW-2 and on 08.04.2010 recorded the statement of RK. On 12.04.2010, he recorded the statement of inquest witnesses and sent the seized articles for forensic examination on 29.04.2010. He produced the forensic report which was marked Exb. Ka-15. He proved the charge-sheet which was marked as Exb. Ka-16.

During cross-examination, PW-7 disclosed that the accused was arrested at 15.35 hours on 11.03.2010. He stated that during the course of investigation no witness disclosed that the accused-appellant had given Churan to the deceased. He stated that the witnesses had disclosed that the deceased was last seen alive in the company of accused-appellant at about 7.30 p.m. He stated that this information was given to him by PW-2 and RK and nobody else. On further cross-examination, PW-7 admitted that he could not learn about any criminal antecedents of the accused. He denied the suggestion that there was no recovery from the house of the appellant and that the seizure memo is nothing but fabricated. He also stated that PW-6 had not informed him that he saw the co-accused but he only told him that he heard about the crime on telephone. PW-7 denied that he prepared a false charge-sheet and the investigation was bogus.

Statement under section 313 CrPC

8. After the entire prosecution evidence was recorded, the incriminating circumstances that appeared against the appellant in the prosecution evidence were put to him for recording his statement under section 313 CrPC. The appellant denied the incriminating circumstances and claimed that he has been falsely implicated because of a dispute with his uncle in respect of the temple and that the informant, PW-6 and the other person who is shown to be the witnesses of recovery, are all close associates of his uncle with whom he has dispute relating to the temple. However, no evidence was led in defence.

FINDINGS OF THE TRIAL COURT

9. The trial court on the basis of evidence led during the course of trial held the following circumstances proved : (i) the victim on 09.03.2010 at 7.00 p.m. went to play near the temple; (ii) the accused was seen taking away the victim at 7.30 p.m. on 09.03.2010 by PW-2; (iii) that when PW-2 and PW-1 had gone to the house of the appellant they noticed him in a drunken state and he also admitted that the deceased had come to his house and after taking Prasad she left; (iv) when the body of the deceased was recovered, from her skirt Prasad/Churan was recovered; (v) that the deceased was last seen alive with the accused and was never seen alive thereafter; (vi) the deceased resides alone; (vii) that on 10.03.2010 at around 11.00 p.m. co-accused Pankaj @ Awdhesh informed PW-6 about the commission of crime by him and the appellant; (viii) that the house of the accused is near the place from where the body of the deceased was recovered; and (ix) that there is no obvious motive to falsely implicate the accused. Finding the aforesaid circumstances as forming a chain so complete that it conclusively pointed towards the guilt of the appellant, convicted the appellant as above.

10. We have heard Smt. Gunjan Sharma for the appellant and Sri J.K. Upadhyaya, learned AGA for the State.

SUBMISSIONS ON BEHALF OF THE APPELLANT

11. Learned counsel for the appellant submitted that this is a case where there is hardly any evidence against the appellant. The only evidence against the appellant is given by PW-2 with regard to victim last seen alive in the company of the appellant. The testimony of PW-2 is not at all reliable for the following reasons : (i) if PW-2 had noticed that the appellant was taking the deceased to his house and this information was given by PW-2 to PW-1 (informant) at 9.00 p.m. on the same day (09.03.2010), as is alleged, then there was no occasion for the informant not to make a disclosure about this fact to the police when admittedly PW-1 and PW-2 had both gone to the police station to give a missing report; further, in the FIR it would not have been stated that PW-2 and RK had noticed the appellant taking the deceased towards the brick kiln. This discrepancy suggests that the prosecution story is based on guess work and strong suspicion only; (ii) the testimony of PW-2 is also unreliable for the simple reason that his presence becomes doubtful inasmuch as during cross examination he stated that on the date of the incident he left the house to put up his stall at 9.00 a.m. in the morning and was there at the stall till 8.30 p.m. and returned only when he received information that his niece had gone missing. If that was so, then where was the occasion for him to have noticed the deceased in the company of the appellant at 7.30 p.m. In these circumstances, the entire prosecution case is based on wholly unreliable evidence. In addition to above, learned counsel for the appellant submitted that the forensic evidence does not corroborate the recovery of blood stained and semen stained articles from the house of the accused. This also creates suspicion with regard to the bona fides of the investigation. Further, the statement of PW-2 was not promptly recorded but was recorded after two weeks. All of this would suggest that the prosecution story was developed only on guess work. Hence, the prosecution has miserably failed to prove their case against the appellant.

12. Learned counsel for the appellant further contended that this is a case which was instituted after amendment in the Code of Criminal Procedure whereby Section 53-A was inserted in the Code, yet no effort was made to have DNA profile of the blood and semen found on the knickers of the deceased as to connect it with the appellant. All these circumstances would suggest that the appellant has been falsely implicated only on account of strong suspicion or perhaps because of temple dispute. It was urged that the learned trial court has accepted the prosecution evidence as gospel truth and has not tested the same against the weight of probabilities.

SUBMISSIONS ON BEHALF OF THE STATE

13. Per contra, Sri J.K. Upadhyaya, learned AGA, submitted that there is no strong enmity disclosed between the prosecution witnesses and the appellant therefore, there is no good reason to assume that the prosecution witnesses would falsely implicate the accused-appellant. Admittedly, the house of the appellant was located at a short distance from the temple and the MS brick kiln, from where the body of the deceased was recovered, was in close vicinity thereto. It is not in dispute that there existed a temple in front of the house of the victim and that the victim in lure of Prasad visited the temple therefore, it is quite probable that she visited the temple and went with the appellant as is the evidence. In such circumstances, the testimony of PW-2 cannot be doubted and PW-4, the mother of the victim, has also given testimony that when the victim had gone to play near the temple she noticed the appellant standing there. He, therefore, submits that the learned trial court has rightly recorded conviction and the appeal is liable to be dismissed.

ANALYSIS

14. Having noticed the rival submissions and the evidence led by the prosecution what is clear is that this is a case based on circumstantial evidence. There is no direct eye-witness account of the incident. As to when on the basis of evidence circumstantial in nature, conviction can be recorded, the law is well settled, which is, that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of hypothesis other than that of the guilt of the accused and inconsistent with their innocence (vide Vijay Shankar V. State of Haryana, (2015) 12 SCC 644; Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116; Bablu V. State of Rajasthan, (2006) 13 SCC 116) Further in the much celebrated judgment of the Supreme Court in Sharad Birdhichand Sarda's case, it has been clarified that the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby they 'must or should' and not 'may be' established.

15. In addition to above, we must bear in mind that the most fundamental principle of criminal jurisprudence is that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793). These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:-

"18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.

19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."

16. In light of the law noticed above, what we have to examine is whether the circumstances sought to be proved against the appellant have been proved beyond reasonable doubt and whether those circumstances put together constitute a chain so complete as to point out out that in all human probability it is the appellant and no one else who committed the crime.

17. In the instant case, the prosecution places strong reliance on the following circumstances : that the appellant was relative of the Pujari of the temple which was in front of the house of the victim where the victim used to visit for Prasad as also to play; that on the date of the incident the victim had gone to play at the temple by or about 7.00 p.m. where the appellant was present; thereafter, PW-2 noticed the appellant taking the victim towards his house; and, whereafter, the victim was not seen alive.

18. In so far as the presence of the appellant at the temple when the victim went there to play is concerned, that evidence has come from the mother of the victim who has been examined as PW-4. During her cross examination, PW-4 has specifically stated that she did not notice the appellant taking the victim. She only noticed the presence of the appellant near the temple. Admittedly, the temple was a public temple accessible to all. In such circumstances, the presence of any person near the temple by itself is not an incriminating circumstance which may require an explanation. More over, from the testimony of PW-2 it appears that at the time of the incident the Pujari of the temple was the uncle of the appellant because the father of the appellant who was earlier doing Puja had suffered injury therefore, he was unable to do Puja at the temple. Another interesting feature that has come in the testimony of PW-2 is that the Prasad is distributed after morning and evening Aarti. No doubt, PW-1 states that Prasad is distributed at all times but the statement of PW-2 is specific that Prasad is distributed either in the morning or in the evening. PW-2 also specifically stated that morning Aarti takes place at 5.00 a.m. and the evening Aarti takes place at 8.30 or 9.00 p.m. Interestingly, the time when PW-4 saw the accused at the temple is 7.00 p.m. by which time, Arti was not done. Whereas, PW-2 saw the appellant taking the victim at about 7.30 p.m. Since there is no direct evidence about distribution of Prasad or as to who gave the Prasad, recovery of Churan from her skirt cannot be attributed to the appellant. As to what weight is to be attached to the aforesaid statements of PW-2 and PW-4 needs to be examined. In so far as PW-4's statement is concerned, she did not state that she saw the appellant taking the victim. She only stated that she saw the appellant standing at the temple. In so far as PW-2 is concerned, his testimony is specific that the appellant was seen taking the victim at 7.30 p.m. But, during cross examination, PW-2 stated that on the date of the incident he had left his house in the morning at around 9.00 a.m. and returned in the evening at 8.30 p.m. when he was informed that his niece had gone missing. The statement given in his cross examination seriously dents the credibility of the statement of PW-2 that he saw the appellant taking the victim at 7.30 p.m. more so, when there is no clear description of the place from where he spotted the appellant taking the victim. Notably, the Investigating Officer did not indicate in the site plan the place from where the witnesses spotted the appellant taking the deceased. Another interesting feature of the case is that the FIR has been lodged on the next day i.e. on 10.03.2010. PW-1, PW-2 and PW-4 are all consistent that they had visited the police station in the night of 09.03.2010 at 11.00 p.m. to inform the police about the victim being missing. What is important here is that in the FIR which was lodged on the next day, there is no disclosure with regard to their effort of making a missing report previous evening. Further, there is no disclosure in the FIR of they having visited the house of the appellant upon getting information that the appellant was noticed taking away the victim to his house. What is most important is that in the FIR the information given to the informant by PW-2 is quoted in a manner as if PW-1 was informed that the appellant was seen taking the victim towards the brick kiln from where her body was recovered. Importantly, in the deposition made during trial, the information alleged to have been given by PW-2 to PW-1 is with regard to the appellant taking the victim to his house. Interestingly, the articles seized from the house of the appellant were not found stained with blood or semen. Further, the I.O. made no effort to DNA profile the blood sample of the appellant with the blood and semen found on the knickers of the deceased. All of this creates a serious doubt in our mind with regard to the credibility of the investigation, which assumes importance in a matter based on evidence circumstantial in nature. It appears to us that the case was built on strong suspicion and nothing else, probably, to solve out a heinous crime because it is quite natural that when heinous crime is noticed or reported there is immense pressure on the Investigating agencies to solve it out as quickly as possible. The appellant appeared to be a soft target, being son of the Pujari at the temple where the deceased used to go. But, it is well settled that how so ever strong suspicion might be it does not take the place of proof. In our view, therefore, neither the prosecution has been abe to prove the incriminating circumstances against the appellant beyond the pale of doubt nor those circumstances constituted a chain so complete as to indicate that in all human probability it was the appellant and no one else who committed the crime.

19. In view of the discussion above, we are of the opinion that the appellant is entitled to be acquitted of all the charges for which he has been tried and convicted. The appeal is, therefore, allowed. The judgment and order of conviction passed by the trial court is hereby set aside. The appellant is acquitted of all the charges for which he has been tried. The appellant is reported to be in jail. He shall be set at liberty forthwith unless warranted in any other case subject to compliance of provisions of Section 437-A CrPC.

Order Date :- 3.12.2022 Rks.

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