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Allahabad High Court

Sonu Sharma vs State Of U.P. on 19 October, 2010

Author: Imtiyaz Murtaza

Bench: Imtiyaz Murtaza, Ashwani Kumar Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Reserved
 

 

 
		Criminal Capital Appeal No. 6644 of 2008
 

 
			Sonu Sharma 		.....Appellant. 
 

 
					Versus 
 

 
		State of U.P. 		....Opp. Party. 
 

 
			Reference No. 11 of 2008
 

 
			*****************
 

 
Hon'ble Imtiyaz Murtaza, J. 
 

Hon'ble Ashwani Kumar Singh, J.

(Delivered by Hon'ble Imtiyaz Murtaza, J) Challenge in this appeal is to the judgement and order dated 10.9.2008 passed by Addl. Sessions Judge/Special Sessions Judge (E.C. Act) in S.T. No. 1385 of 2006 whereby the appellant has been convicted under sections 302,376, 307, 506 I.P.C. and section 25 of Arms Act and awarded sentences: to be hanged till death and a fine of Rs. 1,00,000/-, imprisonment for life and fine of Rs. 50,000/-, 3 years' R.I. and a fine of Rs. 10,000/-, one year R.I. and again one year R.I. respectively.

The substratum of the prosecution case is that on 18.10.2006 at about 12 noon, Rajni daughter of informant Vinod Kumar, aged about 11 years who was studying in Class V had gone to the field for watching the mustard crop, which the first informant had taken on Batai from Jagdish Master. It is further alleged that adjacent to this field, are the tube well and also the field of Sonu with standing sugar cane crop. At about 1 p.m, when the first informant and Lala happened to be near the field of Sonu, they heard the shrieks of his daughter emanating from the sugar cane field of Sonu upon which he and Lala rushed in that direction raising hue and cry. It was about that time that Sonu emerged from the sugar cane field holding in one hand blood stained Khurpi and in another hand, country made pistol. Seeing them, Sonu fired at them but the shot deflected and missed them. It is further alleged that they took shelter in nearby sugar cane field. Hearing reports of fire, the people who were busy working in their respective fields, took to their heels and escaped towards the village. It is further alleged that somehow or the other, the informant and Lala managed to enter the field of Sonu from the other side and found his daughter lying supine with her neck slit. It is further alleged that leaving Lala with his dead daughter, the informant rushed back to the village where he found that the entire village was enveloped in eerie silence. His wife was weeping and wailing. Seeing the informant, she told him that Sonu had come here and after firing 2-3 shots, gave threats that he had finished Rajni and that he would also do away with any one who dared to initiate any legal action against him. He further alleged that while he alongwith Ashwani Sharma was on way to the police station for lodging the report, Sonu once again emerged before them armed with a country made pistol from near a Madhai (small room) and repeated his threats saying that in case they went to lodge the report, he would finish them. Sensing trouble to them, it is further alleged, they retreated to the village and upon return to the village, he dictated the report to Ashwani Kumar and thereafter, he affixed his thumb impression on the report, which is Ext. Ka-1. It is further alleged that he had somehow managed to come furtively to the police station making a detour round the various fields.

P.W. 5 S.I Vijai Kumar Singh, prepared the inquest report on the dictation of Yash Pal Singh. He also prepared Challan Lash, Photo Lash, report for C.M.O etc Ex. Ka 5 to Ex ka 10. The dead body was thereafter despatched for post mortem escorted by the police constables Netra Pal Singh and constable Mukesh Kumar. On 26.10.2006, it would appear, accused Sonu was arrested and country made pistol was recovered from his possession and case under section 25 Arms Act was also registered against him. At about 5.50 p.m, Vijai Kumar Singh S.I alongwith S.O. Yashpal Singh and constable Tejvir Singh and constable Kuldeep went to village Kaviyawali in the Jeep alongwith accused person and on his pointing out Khurpi used in the commission of murder was recovered from near the tubewell at about 7 p.m. The post mortem was conducted on 9.10.2006 by Dr. P.M.Gupta P.W. 3. According to the post mortem report, the probable age of the deceased was about 11 years and probable time of her death was 1,1/4th day. In the post mortem report, the condition of body was described as such; "Muscularity average, stoutness, average, Emaciation Nil, rigour mortis passed in upper extremity passing in lower extremity. Decomposition nil. The doctor further opined that libia miner was abraded and swelled. Hymen ruptured at 6 o'clock position. Blood present inside vagina. Two slide of vaginal smear prepared and sent to Senior Pathologist for examination". Following ante mortem injuries were found on the person of the deceased.

1.Incised wound of size 12 cm x 2 cm x bone deep over front and right side of chin. Mandible partially cut. Margin are clean cut.

2.Incised wound of size 8 cm x 2 cm x neck cavity deep just above the thyroid cartilage. Margin are clean cut. Allthe large vessels of right side of neck are cut. Pharnyx is cut.

3.Abraded contusion 4 cm x 2 cm on left side of chest 4 cm above from left nipple at 2 o' clock position.

In the stomach, about 100 ml semi digested food was found. The uterus was non gravid. In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of ante mortem injuries.

It would appear that after receiving report of post mortem, section 376 IPC was added.

P.W. 6, Yashpal Singh is the investigating officer of the case. He recorded statement of the first informant and also statement of Lala Ram. He also arrested accused on 16.11.2006 and after conclusion of investigation, he submitted charge sheet in the court under section 302/307/376/504 IPC.

After submission of charge sheet, the case was committed to the court of Sessions. The Sessions Judge framed charges under section 302, 307, 376 and 506 IPC.

The prosecution has examined in all 8 witnesses out of which PW. 1 and P.W 2 Vinod Kumar and Lala Ram are ocular witnesses. P.W. 3 is Dr. P.M. Gupta who conducted autopsy on the dead body. P.W. 4 is constable Mukesh Tiwari who registered F.I.R. and prepared Chik report Ex. Ka 3 and G.D. Entry Ex. Ka. 4. P.W. 5 is S.I.Vijai Kumar who prepared inquest report and also deposed about recovery of Khurpi on the pointing out of the accused. P.W. 6 is S.S.I Yash Pal Singh who conducted investigation of the case and submitted charge sheet in the court after conclusion of investigation. P.W. 7 is S.I. Ram Swarup who investigated the case under section 25 Arms Act and submitted charge sheet in the court. P.'W. 8 is Head constable Ratan Singh who prepared chik report and registered case at case crime no. 368 of 2006.

The case of the accused person was one of denial. He abjured the guilt and claimed to be innocent. He stated that he has been falsely nominated in the case and claimed to be tried. He examined D.W.1 Ashwani Kumar who scribed the report at the dictation of Vinod Kumar, as defence witness.

The Sessions Judge after scrutinizing the evidence brought on record by the prosecution as well as defence, recorded verdict of conviction against the appellant, as aforesaid. Hence this appeal.

We have heard Sri P.N. Misra, Sr. Advocate assisted by Shri Apul Misra. learned counsel for the appellant and Shri D.R. Chaudhary, learned Government Advocate, assisted by Shri M.S. Yadav, A.G.A. and Shri Rajesh Kumar Pandey, A.G.A. as well as perused the judgment and order of the court below and also record.

Learned counsel for the appellant has assailed the findings of the trial court on the ground that the presence of the first informant and P.W. 2 Lala at the time of occurrence is within the realm of doubt attended with the submission that delay in lodging the first information report is inordinate and the explanation for delay in lodging the report is artificial and is not convincing and is, therefore unsustainable. It is further argued that there was no allegation of rape against the appellant up till the post mortem examination and this fact speaks volume that the witnesses were not present immediately after the occurrence. It is further submitted that a false and concocted theory has been set up and brought into being by bringing the dead body in the village. The recovery of Khurpi on the pointing out of appellant is also not reliable and admissible in evidence.

Learned A.G.A propped up the judgement of the trial court submitting that an innocent female child has been brutally raped and killed by the appellant in a gruesome manner and that the Sessions Judge has rightly recorded verdict of conviction against the appellant.

In order to appreciate the rival submissions of learned counsel for the parties, it is necessary to analyse the evidence available on record. In order to support the case prosecution in all examined eight witnesses and this court examined P.W.1 Vinod Kumar, P.W.2 Lalaram,P.W.5 Vijai Kumar and P.W.6 Yashpal Singh under section 391 Cr. P.C. P.W. 1 Vinod Kumar, the first informant has deposed that Sonu was known to him being native of the same village. At the time of occurrence, the field which he had taken from Jagdish Master on Batai had standing mustard crop and adjacent to this field, was the field of Sonu with standing sugar cane crop. He further deposed that on the fateful day, Rajni (deceased) had gone to the field for watching the crop at about 12 noon. At about 1 p.m when he was nearing the field alongwith one Lala of the same village, he heard shrieks of Rajni emanating from the sugar cane field of Sonu. He raised alarm and rushed alongwith Lala to the sugar cane field of Sonu and they saw that Sonu was coming out from the direction where from they heard the shrieks. Sonu was carrying a Khurpi in one hand which was blood stained and a country made pistol in another hand. Seeing them, Sonu had fired at them with intention to kill, however, the shot was deflected and they narrowly escaped. It is further deposed that they hid themselves in another sugarcane field. He also deposed that hearing the reports of fire, the village people engaged in their respective fields, took to their heels. Sonu went towards the village. Thereafter he alongwith Lala entered the sugar cane field and saw that neck of Rajni was slit and she was naked below her waist. He deposed that he pulled up her underwear and Salwar and leaving Lala near the dead body of Rajni, he left for village. Upon reaching the village, he saw that the entire village was enveloped in eerie silence and his wife was wailing and seeing him, she told that Sonu had come there and had fired 2-3 shots and had yelled that in case any legal action against him was initiated, he would finish them. He further deposed that when he was on way to police station, accused came across him having emerged from near a madhai, carrying a country made pistol and aiming pistol at them, he threatened them that in case they dared to lodge the report he would finish them. He also deposed that terrified, they retreated to the village and it was in the village that he dictated report to Ashwani Sharma and he affixed his thumb impression on the report, which is Ext.Ka-1. Thereafter, he alongwith 4-5 persons reached the police station furtively making a detour through various fields and lodged the report at the police station.

In the cross examination, he deposed that in the field of Jagdish Master, crop was sown by Jagdish Master and he was engaged for watching the crop on condition of 1/4th share of the crop. At the time of occurrence, the mustard crop had not ripened. He further stated that in watching the standing crop, he was assisted by his wife and his deceased daughter. He further deposed that deceased was sent randomly and most of the watch and ward duty was done by him and his wife. He further stated that the crop was watched between 10 a.m to 4 p.m and that on the day of occurrence, since he was afflicted with fever and confined to cot Rajni was asked for taking a round of the field in order to see that anyone was not doing any harm to the standing crop at the same time, asking her to return forthwith thereafter. He further stated that the field in question lay after crossing 8 to 10 field and it could not entail more than 10 minutes to reach the field. He further stated that when Rajni did not return for more than half an hour, he grew anxious and stood there looking for someone and in the meantime, he saw Lala going towards the field and hence he accompanied Lala upto the field. He further stated that he and Lala had left for the field at about 1 p.m. He further stated that he did not discuss about Rajni as by that time, there was nothing to worry much. He further stated that in between the field of Jagdish Master and Sonu, there existed a chak road. He also stated about the details of field adjacent to the field of Jagdish Master and Soni.. He further stated that Soni had a chak admeasuring 14 Bighas and in the field in which tubewell is installed, sugarcane crop was standing. He further stated that as soon as he reached near the mound of the field, he heard shrieks of his daughter emanating from the sugar cane field of Sonu. Upon hearing the shrieks he rushed in that direction. In the meanwhile, Sonu emerged from his field and seeing them, he fired from his pistol. He explained that the fire was opened at them from a distance of about 4 to 5 steps. He further stated that he ducked and escaped to nearby sugar field and there they hid themselves in the sugar cane field. He further stated that he had told this fact to the investigating officer that when Sonu had fired at them, they hid themselves in the nearby sugarcane field. He further attested to the fact that upon hearing the report of fire, the people working in the nearby field, had taken to their heels. He however, could not name the people working in the nearby field.. He further stated that none of the village people dared to come forward either to apprehend the culprit or to save them from the assault of culprit. He further stated that he and Lala Ram kept themselves in hiding in the sugar cane field for about half an hour and they began search for Rajni after Sonu had departed from the place. He further stated that at the time when Sonu emerged from the field, he had in his hand blood stained Khurpi and he had also stains of blood on his cloths. He further stated that Sonu was seen escaping towards the village. He further stated that when they reached near the body, the blood was spread all around and that no weapon was lying near the body. The body of the girl was lying at a distance of about 20 to 25 steps from the tube-well. Upon being queried he could not tell the direction in which dead body was lying if viewed from the tube-well stating that he was unlettered person. He further stated that leaving behind Lala Ram near the dead body he had left for village. He further stated that he could reach the police station at about 6 p.m. He further stated that when he was dictating report, his wife was with him and all other village people were standing aloof at a distance. He denied the suggestion that the body of the deceased was not recovered from the field of Sonu. He also denied the suggestion that it was his wife who had gone to the field for watching the crop. He also denied the suggestion that he had nominated Sonu as accused in the case on account of Sonu's enmity with Jagdish Master. He also denied the suggestion that he had not seen Sonu emerging from the sugar cane field or firing at them or at that time he was having blood stained Khurpi. He also attested to the fact that Sonu had fired at his wife and that this fact was told to the investigating officer. He however could not recollect whether he had mentioned the names of witnesses who had seen Sonu firing at his wife. He further stated that initially Ashwani Sharma was with him when he was on way to lodge the first information report but on being threatened they retreated to village. Thereafter, he further stated, he left for police station in the company of 4 to 5 people. He further stated that he took the police to the place where the body was lying and also where his daughter was killed. He could tell the time when he returned at the place of occurrence from the police station. He also stated that knots of people had gathered there. He also stated that the investigating officer arrived at the place of occurrence after about half an hour or quarter after his arrival at the place of occurrence. He further stated that the investigating officer remained there for about one and half hours for completing formalities. The inquest was prepared at the field but he could not remember the time when the inquest was prepared. The inquest was prepared by the sub inspector who had recorded his statement at the place of crime. The site plan was also prepared in his presence and the investigating officer had made enquiries about the precise location in the field. Thereafter, he further stated, the investigating officer arranged to fetch the dead body in the village and it was kept in the house. Thereafter, village Pradhan was sent for and the dead body remained there for some time. He could not remember how long the dead body was kept at his house and when the investigating officer had called Ashwani Sharma. He denied the suggestion that the report had been prepared after consultation with Ashwani Sharma and village people. He also denied the suggestion that he had prepared the report at the instance of village people and that Sonu had not committed any crime.

This witness was recalled under section 391 Cr.P.C in this court for clarification on certain points. In reply, he deposed that in the lower court his statement was recorded and he had stated that the neck of the deceased Rajni was cut and she was naked in the lower part of the body. He also deposed that he had pulled up Salwar and underwear. He also deposed that he was not in his full senses. He did not mention in the report that Rajni was naked and he had pulled up Salwar and underwear on account of being perturbed. He minced no words to say that he did not mention this fact to the investigating officer. Again he recalled and stated that he could not recollect whether he had mentioned about this fact to the investigating officer or not. He again stated that account of loss of his senses he did not mention this fact at the time of preparation of inquest. He admitted that he was a witness of inquest also. During the inquest proceedings, he did not mention the factum of injury caused by Khurpi. He denied the suggestion that he was primed and tutored and therefore he was deposing falsely in the court. He explained that on account of being grief stricken, he did not mention this fact to the investigating officer. The name of his father was Bhagwati and uncle of accused was Dev Prakash and the name of grand father was Bharat Singh and grand mother was Kela Devi. He had no knowledge about interse litigation. He denied the suggestion that on account of bitterness and bad blood, he had falsely nominated Sonu as perpetrator of crime. He further stated that Lalaram witness resided with his in-laws in his village. The name of father-in-law of Lalaram was Totaram. He denied knowledge whether Totaram was a witness from the side of father in the case against Dev Prakash. In a reply to a court question, he stated that Ashwani had prepared the report on his dictation in the village. At the time of preparation of report, he was not in a fit mental condition. In the F.I.R. the occurrence is narrated only in 5 or 6 lines. He did not remember whether in the report he mentioned about firing on him and Lalaram. He did not sustain any injury. Further he mentioned that his wife told him in the village that Sonu after reaching in the village had fired three shots and threatened her. He did not mention in the F.I.R. that the dead body had no cloths. He could not recollect if the dead body had been bared of clothes he could have mentioned it in the report. After preparation of the report, when he left for police station, Sonu again came across him near a Madahi and he had threatened him by brandishing a country made pistol. He admitted that he had mentioned in the report that he came to lodge the report furtively. Prior to lodging of the report Sonu had threatened his wife in the village. He could not explain how he had mentioned in the report "after dictating report to Ashwani Kumar he came to police station stealthily". On the date of occurrence dead body was brought to village and by that time, it had grown dark. The dead body was brought in a sealed condition on a tractor trolley. He explained that Rajni had gone to the field at about 12 noon. He further explained that Lalaram was coming in front of his house and at that time he had called him. He also explained that the house of Lalaram was situated at a distance of 50 60 meters from his house and that his Gher was near his house.

P.W. 2 Lalaram deposed that Sonu being native of his village was known to him. From a scrutiny of his depositions it would transpire that he has put weight to the deposition of P.W. 1 in all material aspects and his deposition also lends support to the allegations contained in the F.I.R. We need not reiterate all those facts which would do no good except to swell this judgement.

In the cross examination, he deposed that his in-law belonged to village Katiyawali and he had been living with his in-laws. He further stated that he was Kumhar by caste and that Informant Vinod was Nai (barber) by caste. He further stated that accused Sonu was Brahman by caste. The substance of what he stated in his cross examination is that he had no landed property in village Kaliyawali; and he has only one house ; that he had sustained injury in his right eye about 16 years back in a dispute which took place in his ancestral village Gadla Ka Nagla and the visibility of his eye has since diminished; that he was not involved in any dispute in his ancestral village. He denied the suggestion that he being quarrelsome by nature and his antecedents being notorious, he was banished from his ancestral village. He further stated that he had only fleeting acquaintance with Vinod and that on the date of occurrence, he was accosted by Vinod. However, he could not tell whether the doors of the nearby houses were ajar or were closed. He further stated that he was aware that Vinod had sown mustard crop in the field and further that he had seen Vinod guarding the field. He propped up the version that he was passing from in front of the house of Vinod, he was told by Vnod that his daughter had gone to the field and had not returned upon which they left looking for his daughter. He further stated that they had not come across any village people while they were on way to the field. He further stated that while they were near the field of Jagdish, they heard shrieks of the deceased. He further stated that accused Sonu was seen at a distance of about 10 to 12 yards and seeing them, he ran after them and opened fire upon which they lay down on the ground and escaped being hit. He further stated that accused Sonu had fired at them twice and thereafter, they escaped and ran towards west of the field till the next field in which sugar-cane crop was standing. Initially this witness stated that investigating officer had not noted down his version but in the same breath he reiterated that his version was noted down at the field. He further stated that he had told the fact that they had escaped to the next field which belonged to Rishipal and if investigating officer had not noted down this fact in his statement, he could not tell any reason for the same. He also stated that he was not attentive to notice any person working in the nearby field further stating that if village people were working in their respective fields nearby, they might have escaped to the village but he could not notice anyone there as his attention was revetted on incident. He denied that he made any statement to the effect that he had seen village people escaping towards village after hearing sounds of fire. He further stated that when they had taken shelter in the sugarcane field, the accused Sonu was seen going towards the abadi of the village He further stated that he could see movement outside the field from the sugarcane field. After the accused had left, they came out and at that time, they had not yelled for help. He further stated that thereafter, they went to the sugar cane field of accused Sonu where they saw the body of the deceased. At the time when they saw the body, it was lying spread eagle with legs and hands apart. He also stated that seeing the dead body of his daughter, Vinod had clung to the body and had wept bitterly and in the process, splodges of blood had stuck to the cloths of Vinod. He further stated that he was left near by the body while Vinod left for village. He further stated that Vinod had come back in the company of his family after 25 to 30 minutes. He denied that wife of Vinod had tried to wipe out the blood from the body of the deceased. He further stated that the body lay there in the field till the police arrived and it was police which took the body to the village and the paper work was done at the house of Vinod. He further stated that the police had also called village Pradhan Ashwani Kumar at the house of Vinod but he could not tell exact time. He further stated that he had not gone to the police station. He denied that he had met the investigating officer separately but stated that his thumb impression had been obtained in the field itself. He further stated that the sub inspector who had conducted inquest on the body and had obtained his thumb impression was the same person who had recorded his statement. He denied that suggestion that he was neither accosted by Vinod nor he accompanied Vinod in search of his daughter nor he had seen accused coming out with Khurpi and country made pistol in his hands or that accused Sonu had not fired etc. He also denied the suggestion that the deceased had disappeared and he had knowledge about disappearance of Rajni since morning and after assiduous search, the dead body was found which was brought to the house of Vinod. He also denied the suggestion that the police had not done the paper works at the field but entire paper works was done at the house of Vinod. He also denied the suggestion that the Police had called Ashwani Kumar at the house of Vinod where the report was dictated P.W. 2 Lalaram on being called in this Court, deposed that his statement was recorded in the lower court where he had deposed that Rajni was found lying dead and her neck appeared to have been lacerated and her underwear and Salwar were pulled down and Vinod had drawn cloths to cover her nudity. He stated that he did not tell the above facts to police as those facts were not asked at the time of inquest. He further stated that he was living in the house of his in-laws and his father in law was Tota Ram. He denied knowledge whether there was any litigation between his father in law and uncle of Sonu accused. He denied the suggestion that he had not seen the incident and he was deposing falsely on account of his proximate acquaintance with Vinod. He further stated that it takes about one and half hour for covering distance on foot from village to the police station and by any vehicle it takes only half an hour.

P.W. 3 Dr. P. N. Gupta deposed that on 19.10.2006 he was posted as medical officer district jail Bulandshahr and on that date he had conducted the post mortem examination on the dead body of Rajni at about 4 p.m. The dead body was brought in properly sealed condition by constable Netrapal Singh and constable Mukesh Kumar. The deceased was aged about 11 years and she was of average built. Rigour mortis was passed from upper extremities of the body and was present in the lower extremities and he noted following ante mortem injuries on the person of the deceased Rajni:

1. Incised wound of size 12 cm. x 2 cm. x bone deep over front and right side of chin. Mandible partially cut. Margins are clean cut.

2. Incised wound of size 8 cm. x 2 cm. x neck cavity deep just above the thyroid cartilage. Margins are clean cut. All the large vessels of right side of neck are cut, pharynx is cut.

3. Abraded contusion 4 cm. x 2 cm. on the left side of chest 4 cm. above from left nipple at 2 O'clock position.

He prepared the post mortem report which is Ext. Ka-2. In his opinion death is possible on 18.10.2006 at about 1O'clock on account of injuries. Injury nos. 1 and 2 are possible by assault of Khurpi, He found possibility of rape before death.

In the cross examination he deposed that the injury nos. 1 and 2 are possible by the assault of Khurpi. The injury is possible due to assault by Khurpi. He opined that the injuries could be possible by the assault of the blade of Khurpi and it would depend upon the force applied in assault. He further opined that the injury nos 1 and 2 could possibly be caused by sharp edged weapon. Injury no. 3 could be possible by the assault of blunt object. Rigour mortis starts appearing on the body within 2- 3 hours of the death and it takes about 12 hours to cover the entire body. He further opined that rigour mortis subsists in the body for 12 hours and thereafter it starts receding and passes away in next 12 hours. At the time of post mortem rigour mortis had passed on in upper extremities of the body and it was present in the lower extremities of the body. On that basis, he opined that it may have entailed 3-4 hours in passing of the rigour mortis in upper extremities. In his opinion, duration of death is possible about 29 hours prior to the conducting of post mortem examination. He opined that death of the deceased was possible on 18.10.2006 at about 1 O'clock. He had mentioned the duration of the death 30 hours and there is possibility of variation of 2 hours in either side.

P.W. 4 Constable Mukesh Kumar deposed that on 25.10.2006 he was posted as constable clerk in police station Jahangirabad. On the basis of recovery memo prepared by the S.H.O. Yashpal Singh chik no. 244 of 2006 was prepared by him, which is Ext. Ka-3. On the basis of Chik G.D. No. 32 was prepared at 17 hours on 20.10.2006. Copy of the G.D. is Ext. Ka-4.

In cross examination he deposed that in the preparation of the chik he had taken one hour and 15 minutes, in entering the contents of chik in G.D. might have taken about 20 - 25 minutes. He started preparing chik at 5 p.m. He could tell the exact time of preparation of G.D. On the same day both the papers were dispatched to I.O. He denied the suggestion that ante timed chik was made.

P.W. 5 Vijay Kumar Singh, Investigating Officer deposed that at the relevant time, he was posted as S.S.I. at police station Jahangirabad. On that date, case crime no. 368 of 2006 under section 302, 307, 506 I.P.C. was registered at the behest of first informant. Immediately upon registration of the case, he along S.H.O. Yashpal Singh rushed to the village Katiyawali in the official Jeep alongwith relevant papers and inquest paper and conducted inquest on the dead body of Rajni on the direction of Yashpal Singh. He also performed other formalities at the spot relevant papers, Challan Nash, Photo Nash, report to C.M.O. He had enquired in the report whether victim was raped or not. Inquest report is Ext. Ka-5, Challan Nash is Ext. Ka-6, Photo Nash is Ext. Ka-7, report is Ext. Ka-8, letter to C.M.O. is Ext. Ka-9 and letter to C.M.O. relating to enquiring about rape is Ext. Ka-10. Thereafter dead body was sealed and sample seal was prepared (Ext. Ka-4). Seal and sample seal was prepared, is in his handwriting. Sample seal is Ext. Ka-11. Sealed dead body was handed over to constable Netrapal and constable Mukesh Kumar for the post mortem examination. On 25.10.2006 he alongwith S.H.O. Yashpal, constable Tejveer, constable Kuldeep and driver of Jeep Umesh Tyagi left police station at 12.45 p.m. for arresting the accused. When they reached village Adhiyari they received information that Sonu who is wanted had come from the side of Bajhedi. They accompanied the informer and at a distance of 50 steps Sonu was arrested about 3 p.m. Public witnesses were not available. After his arrest he disclosed his name as Sonu son of Vijay Prakash, one country made pistol and a 315 bore cartridge was recovered from his right hand pocket and he also disclosed that he had fired at the father of Rajni and again in the village from the pistol. The pistol and cartridges were sealed and sample seal was prepared. He was arrested under section 25 Arms Act also. He had already been wanted in case crime no. 368 of 2006 under sections 302, 307, 376, 506 I.P.C. No villagers agreed to become a witness due to fear. He prepared the recovery memo, which is Ext. Ka-12 and the recovered articles and accused was brought to the police station. On the same day at 5.50 p.m. he alongwith S.H.O. Yashpal,constable Tejveer, constable Kuldeep and Driver Umesh Tyagi of official Jeep brought Sonu to village Katiyawali and he agreed to get recovered Khurpi by which he had committed the murder of Rajni. Two public witnesses Chhotey and Mukesh were associated for the recovery. They accompanied Sonu on foot and on the northern corner of his Tube Well, where some bricks were lying Sonu got recovered a Khurpi containing dried blood. The Khurpi was recovered at about 7 p.m. in the torch light. Recovery memo was prepared and signatures were obtained, which is Ext. Ka-13. Thereafter the recovered articles and accused were brought to the police station. A sealed bundle was opened in the court which has a slip stuck to it reading Vidhi Vigyanshala, a blood stained Khurpi, plain earth was recovered and blood stained earth, and he identified the Khurpi which was recovered on the pointing out of Sonu, which is material Ext. Ka-1. Two packets of blood stained and plain earth were recovered and he identified that this earth was collected by S.H.O. from the place of occurrence. Blood stained earth is material Ext. Ka-2 and plain earth is material Ext. Ka-3.

In the cross examination, he deposed that for preparation of the inquest he had left the police station at about 6.30- 6.45 p.m and the distance of the place of occurrence from the police station is 7 km. The first informant and the witnesses did not accompany him from the police station. He reached directly to the place of occurrence in half an hour. Prior to the occurrence he never visited the place of occurrence. On the direction of S.H.O. he started preparing the inquest report. The time of starting of inquest proceedings is mentioned in the inquest report. He immediately started preparation of inquest report on the direction of S.O. In the beginning he mentioned the name of the witnesses and thereafter inquest witnesses were appointed. Gas lantern was arranged from the village, dragon light was already with them. After some time, gas lantern was fetched but he could not tell the exact time when it was fetched in the village. He denied the suggestion that blood stained and plain earth was collected from outside the house of first informant. He denied the suggestion that he did not go to the field of Sonu for preparation of inquest report. He also denied the suggestion that the first information report was not available till the preparation of inquest. He also denied the suggestion that at the place of arrest no police personnel was available and he was arrested elsewhere. He also denied the suggestion that at the behest of the first informant, country pistol was planted on the accused. He had prepared a recovery memo of Khurpi. He did not mention the length and breadth of the blade. The blade of the Khurpi was measured in the court room, which was 10.5 cm. He also denied the suggestion that accused did not confessed and thereafter Khurpi was got recovered. He denied the suggestion that the Khurpi was not recovered on the pointing out of the the accused. He also denied the suggestion that accused did not inform him about the use of fire arm. His statement was recorded by the investigating officer relating to case under section 25 Arms Act on 29.10.2006. He also denied the suggestion that all the recoveries and proceedings were conducted by him at the police station.

On being summoned in this Court on 26.5.2009, P.W. 5 Vijay Kumar Singh deposed that both the witnesses namely, Vinod Kumar and Lalaram were the ocular witnesses of occurrence. He did not mention in the inquest report as to what was the weapon by which injuries were inflicted. He attested to the fact that at the time of preparation of inquest report, F.I.R. was before him and in the report it is mentioned that injuries were caused by Khurpi but he did not mention it in the inquest report. He also stated that he did not make queries from any of the witness about deceased being subjected to rape. He clarified that since Salwar of the deceased was tainted with blood, he left the query to be answered by the doctor in his report whether rape was committed or not. He further stated that at the time of preparing inquest report, he had examined all the injuries of Rajni. No injury mark was noticed by him on her private part. He had prepared the inquest in the sugar cane field and the dead body was also sealed at the same place. He also stated that the cloths on the body of the deceased were not in dishevelled state. He also stated that he did not mention the fact that the draw-string of Salwar was not found untied.

P.W. 6 S.I. Yashpal Singh deposed that on 25.10.2006 he was posted as S.O. police station Jahangirabad. On that date he alongwith S.S.I. Vijay Kumar Singh, constable Kuldeep Singh alongwith Driver Umesh Tyagi of the official Jeep had left the police station at 12.45 p.m. for arresting the accused. He also deposed on being tipped by informer who met him near Adhiyari turning, Sonu was arrested at 3 p.m about 50 steps away from brick kiln. On being interrogated, the arrested man disclosed his name as Sonu and search of his body yielded a country made pistol 315 bore alongwith a live cartridge from his right hand pocket. Recovery memo was prepared about the country made pistol. On being further interrogated, the accused divulged that after committing the murder of Rajni, he had fired at Lala and Vinod in order to kill them and thereafter, he had fired three shots in front of the house of the first informant and had also threatened the village people. He further stated that the village people being terrified, no one agreed to be a witness in the case. On his dictation, Vijay Kumar prepared recovery memo and sample seal was also prepared. He identified the recovery memo, which is Ext. Ka-12, which was prepared on his dictation by S.S.I. Vijay Kumar. He had also signed the recovery memo. Copy of the recovery memo was given to the accused. A sealed bundle was opened in the court and a country made pistol 315 bore and a cartridge of 315 bore was taken out. The country made pistol is material Ext. Ka-4 and cartridge is material Ext. Ka-5. The articles recovered and the accused brought to the police station.

In the cross examination, he stated that after receiving the information from the informer, the police party came at the indicated place I.e near brick kiln where the accused was seen standing at a distance of 100 steps. The accused, he further stated, was standing at a distance of 50 steps from the brick kiln and he was standing facing east and north direction. On seeing police personnel, he further stated, the accused tried to escape and in his efforts to evade arrest, he had run for about 20 steps. He stated that he did not inform the investigating officer the place from where recovery memo was prepared. At the time of arrest of the accused, he further stated, 2-3 passers-by was asked to become witness but they did not agree. He did not ask their addresses and did not mention it in the recovery memo. In the surroundings, there were fields but no one was working in the field. There was no one at the brick kiln also. Brick kiln was at the time in existence but it appeared it had not been commissioned. He could not recollect whether there were bricks or not. He denied the suggestion that the place of arrest of accused is wrongly mentioned. He also denied the suggestion that no country made pistol or cartridge was recovered from the possession of the accused. He also denied the suggestion that country made pistol was not used in the case of 302, 376 I.P.C. He further denied the suggestion that accused was called from the house and country made pistol was planted. On the application of A.D.G.C. P.W. 6 S.I. Yashpal Singh was recalled and he stated that in case crime no. 368 of 2006 he started the investigation on 18.6.2006. On that day he copied the F.I.R. and mentioned in the case diary. He also recorded the statement of the scribe of F.I.R. On the same day, he recorded the statement of Vinod Kumar and Lalaram and entered the same in the case diary. On 19.10.2006 raid was conducted for the arrest of the accused and again on 21.10.2006 raid was conducted for the arrest of the accused. On 24.10.2006 statement of constable Mukesh Kumar was recorded. On the same day on the pointing out of the first informant place of occurrence was inspected and site plan was prepared, which is Ext. Ka-16. He identified the writing of S.S.I. Vijay Kumar, Ext. Ka-13. He had also signed Ext. Ka-13. On 25.10.2006 inquest report was received and it was copied in the case diary. He also copied the post mortem report in the case diary, recorded the statement of Netrapal Singh and Sonu in the case diary on 8.11.2006. Statement of Smt. Burfi, Mukesh, Nanhey Khan, Raja and Ashwani Dutt Sharma was recorded in the case diary. On 8.11.2006 an application was given in the court for taking accused on remand. On 16.11.2006 charge sheet under section 302, 307, 376, 506 I.P.C. was submitted in court. On 26.11.2006, statement of Om Prakash, Rajendra, Mukesh Kumar and Dr. Gupta was recorded in the case diary. He proved the charge sheet, which is Ext. Ka-17.

In the cross examination he stated that the first information report was registered in his presence and he commenced investigation of crime no. 368 of 2006. Head constable had prepared the chik in half an hour. He must have taken half an hour for preparing the G.D. Immediately thereafter he received the G.D. and chik. In preparing all the documents half an hour must have taken. Thereafter he had proceeded to the place of occurrence. It took him 4 - 5 minutes in leaving the police station. The place of occurrence, he further stated, was at a distance of about 6 -7 km. from the police station and he must have taken 20 minutes in reaching the place of occurrence. The first informant and other person accompanying him had started from the police station separately and they had not accompanied him in the police jeep. The gas lantern was arranged at the place of occurrence. The villagers had collected there and when he reached there they were carrying Gas lantern. Inquest witnesses were arranged by S.I. V. K. Singh. At the time of preparation of inquest report, he was present there. In 2 - 4 minutes inquest was prepared. He did not mentioned the time in the G.D as when inquest commenced. In the case diary, he did not mention the time of starting of parcha and closing of parcha. The informant had arrived at the place of occurrence about the same time when he reached the place of occurrence. He did not see blood stains on the cloths of the first informant. Blood was lying on the ground and blood stained and plain earth was collected by S.S.I. V. K. Singh. He prepared the site plan. He did not mention the place of blood in the site plan. The field in which the dead body of the girl was shown had standing mustard crop at that time. He did not notice any chak road in between the field of accused Sonu and mustard crop field. He also did not see any water channel in between these two fields. He also did not see any chak road on the northern side of field of Sonu. He did not mention any chak road on the southern corner of sugar can field. He did not mention the broken sugar cane from where the dead body was recovered. He did not mention the sugar cane field of Rishipal in the site plan. He did not recover any empty cartridge from the place of occurrence. No empty cartridge was recovered near the house of the first informant. He did not recover any empty cartridge. He was not told that firing was made at the house of the first informant. He did not prepare the site plan. He further deposed that he did not record the statements of the persons in whose presence accused had fired at the house of first informant. He denied the suggestion that inquest was prepared at the house of informant and he did not prepare the site plan in the sugar cane field of Sonu. He denied the suggestion that he wrongly prepared the site plan and dead body was not recovered there-from. He also denied the suggestion that the report was prepared after the inquest proceedings. At the place of occurrence he enquired from the villagers who were working in the field. He recorded the statements of Raja son of Jawahar, Sadhu son of Gaya Jatav and Raghuveer son of Khanchand and they were cutting the grass near the place of occurrence but their fields were not there. He recorded the statement of the owners of the fields. He recorded the statement of Harvansh son of Bhup Singh whose field is shown in the site plan. At the time of leaving the police station he did not record the statement of any person except scribe of the chik. He took only five minutes in recording the statement of scribe of chik. The first informant did not tell him that he concealed himself in the sugar cane field of Rishipal alongwith Lala. The first informant did not inform him the name of the persons in whose presence accused had fired at his wife. He denied the suggestion that he did not record the statement of the first informant. He had taken the dead body from the house of first informant. The dead body was not kept there. He recorded the statement of Sasaram, and if he had denied that his statement was not recorded he could not tell the reason. He was informed that informant and Lala had concealed themselves in a field but this fact was not told to him that they had concealed themselves in the field of Rishipal. Lalaram had told him that hearing the shot fired several persons who were working in the field ran away towards the village. He denied the suggestion that no Khurpi was recovered on the pointing out of the accused from his tube well and he also denied the suggestion that he did not give any statement that he had committed the murder of Rajni with his Khurpi. He also denied the suggestion that with the active connivance of the first informant, Khurpi has been planted on the accused. He denied the suggestion that entire proceeding has been concocted and false charge sheet has been submitted at the behest of first informant and Lalaram.

P.W. 6 Yashpal Singh was recalled for clarification on certain points in this Court and his deposition in this Court substantially is that during investigation, he recorded the statement of Vinod and Lalaram. Both the witnesses did not mention that when they saw the dead body, it was naked and Vinod had pulled up her Salwar and underwear. He denied the suggestion that recovery of Khurpi and country made pistol had been falsely shown and on that account no public witness was produced. Before the recovery, he had not recorded statement of the accused. To a court question, he deposed that none of the eye witnesses had mentioned that the deceased had been raped. He came to know about this only after the post mortem examination. On 25.10.2006, he had added section 376 I.P.C. On the basis of statement of witnesses, he found that witnesses were threatened by firing. Statement of Smt. Burfi wife of Vinod Kumar, first informant was recorded on 18.11.2006. He could not recollect as to why he did not record her statement prior to this date. The witnesses informed him that two shots were fired at the field and three shots were fired in the village by the accused Sonu but no empty cartridge was recovered from the place of occurrence. He had not prepared any site plan of the place where shots were fired.

P.W. 7, Ram Swaroop deposed that on 25.10.2006 he was posted at police station Jahangirabad as S.I. and he was entrusted with the investigation of case crime No. 379 of 2006 under section 25 Arms Act. He started the investigation of case crime no. 379 of 2006 on 25.10.2006. He copied the chik report in the case diary and recorded the statement of Sonu on 27.10.2006. He recorded the statement of Yashpal Singh. On 29.10.2006 statement of S.S.I. Vijay Kumar Singh was recorded. On the same day statement of scribe of the report Mukesh Tiwari was recorded. On the same day on the pointing out of S.S.I. Vijay Kumar Singh he prepared the site plan of the place of occurrence, which is in his writing, (Ext. Ka-13). On 30.10.2006 statements of constable Tejveer Singh, Kuldeep Singh and Umesh Tyagi were recorded and on the basis of evidence collected against Sonu, charge sheet under section 25 Arms Act has been submitted, which is Ext. Ka-14. On 30.4.2006, he had obtained the sanction for prosecution from District Magistrate, which is Ext. Ka-15.

In the cross examination, he deposed that he took about one and half an hour in preparing the chik. Thereafter, he took half an hour in preparing the G.D. He started the investigation at about 7 p.m. He did not mention the time of commencement of investigation in the G.D. He did not mention the time of closing of parcha. In none of the papers he mentioned the time of starting and closing of parcha. He did not record any statement of witnesses on 25.10.2006. The scribe of the chik was present when investigation was entrusted to him. Informant and other witnesses were not available, since scribe of the chik was busy in official work, therefore, his statement was not recorded on 25.10.2006. On 26.10.2006 he did not record the statement of any person. Before recording the statements of the witnesses, the chik and report was entered in the case diary. The statement of accused was recorded on 25.10.2006. The brick kiln was situated at a distance of 50 steps from the place where the accused was arrested. The accused was arrested from the place where the police personnel had seen him. He did not mention the place in the site plan where the recovery memo was prepared. The witnesses had disclosed that recovery memo was prepared at the place of occurrence. When he had gone to inspect the place of occurrence, brick kiln was closed and no one was present there. No witness had told the name of the persons who were present there. When he had inspected the place of occurrence no public witness was there and he did not record any statement. For obtaining the sanction for the prosecution, he himself approached the District Magistrate. No G.D. is available regarding his approaching the District Magistrate for obtaining the sanction. He had moved an application for obtaining the permission for prosecution from the District Magistrate. Copy of the statement is not on record, it must be in the office. Sanction for the prosecution was obtained on 30.11.2006 at about 7 O'clock. Sanction was granted after four days of moving the application. He had moved the application for obtaining sanction on 25.11.2006. Sanction was handed over to him by the clerk of the office of District Magistrate. On 25.11.2006 he had appeared before the District Magistrate and articles and case diary was perused by him. He brought the articles alongwith him but C.D. was left for perusal. On the C.D. the District Magistrate had mentioned sanctioned. He denied the suggestion that he did not go for obtaining sanction and it was obtained in a routine manner. He denied the suggestion that he did not inspect the place of occurrence. nor prepared site plan. He denied the suggestion that at the instance of the informant the proceedings under section 25 Arms Act have been falsely initiated.

P.W. 8 Ratan Singh, is a retired Head Moharrir. He deposed that on 18.10.2006, he was posted as Head Clerk. On that date he had prepared the chik of case crime no. 368 of 2006 under section 302/307/506 I.P.C. on the basis of an application given by the first informant at 6.30 p.m. The original chik is paper no. 4-A, which is Ext. Ka-18. He had prepared the G.D. no. 34 at 6.30 p.m. on 18.10.2006, carbon copy is Ext. Ka-19.

In the cross examination he deposed that he had prepared chik at 6.30 p.m. in which it took him 15 minute. Thereafter he entered in the G.D. in which 6 - 7 minutes taken. In a reply to the question, he deposed that after preparing the chik he started writing C.D., and time of registration of F.I.R. is mentioned there. He could not remember what time has been mentioned in the C.D. but C.D. was prepared immediately after preparation of F.I.R. He could not remember the time when he started writing the C.D. He had handed over a copy of C.D and F.I.R. to the investigating officer. He denied the suggestion that F.I.R. and C.D. was handed over to the investigating officer after the preparation of inquest report.

D.W. 1 Ashwani Dutt Sharma was examined as defence witness. He deposed that he knew Sonu Sharma, his being a native of the same village. The elder brother of father (Tau) of Sonu is Dev Prakash Sharma. The name of the father of accused Sonu is Vijay Prakash Sharma who is son of Bharat Singh. The name of the father of the deceased is Vinod Kumar. He had two brothers and they are Om Prakash and Mukesh Kumar. There is one house of Kumhar in his village and he is Lalaram who is son-in-law of the village and his father-in-law's name was Totaram. He further deposed that he scribed the F.I.R. of this case, which is Ext. Ka-1. He did not go to the police station alongwith the report. He had not gone to lodge the report. He denied the suggestion that while he was on the way to the police station, Sonu had shown a country made pistol. He knew about the murder of Rajni on that day. He had seen Vinod Kumar carrying the dead body in his arms in the lane of village and had also seen him keeping the dead body in front of his house. The police had prepared the inquest in front of the house of informant. The F.I.R. was prepared at the mortuary on the dictation of the police. He had prepared the report on the dictation of the Sub Inspector present there.

On being cross examined by A.D.G.C (Criminal), he stated that he did not receive any summon for the evidence and he had come to the Court alongwith Vijay Prakash, father of accused Sonu. He had come out of his own free volition. He had made a statement before the Sub Inspector that report was prepared at the mortuary, but if this fact was not mentioned in his statement by the police, he could not tell the reason. At the time of preparation of report several persons were present there but he could not recollect their names. He had prepared the F.I.R. between 12-1 p.m. on 19.10.2006. He belongs to the community of Sonu Sharma and the first informant is Nai by caste. He denied the suggestion that he prepared the F.I.R on the dictation of Vinod Kumar. He denied the suggestion that after preparing the report he did not go to the police station alongwith the first informant. He denied the suggestion that accused Sonu was standing near 'Madhai' while they were going to the police station. He denied the suggestion that Sonu had threatened them that if they will go to lodge the report he will kill them. He denied the suggestion that he was falsely deposing actuated by caste consideration. He further stated that he was stating for the first time that he had seen father of Rajni fetching the body in her laps from the field. He further stated that this fact was told by him to Vijai Prakash father of the accused that the written report was prepared at the mortuary. He further stated that the fact that the report was scribed by him at the mortuary was told by him to the informant and also to the father of the accused and also other people of the village after about one and half year. He also stated that since his brother was suffering from blood cancer he remained with him at All India Medical College at Delhi for about nine months. He denied that the suggestion that the written report was not prepared at the mortuary.

In recording verdict of conviction against the appellant, the learned Sessions Judge quintessentially observed to the effect that on 18.10.2006 Rajni had gone to look after the crop and it was per chance that the first informant and Lalaram also reached there and they heard the shrieks emanating from the field. Thereafter suddenly accused emerged from the field carrying a country made pistol and blood stained Khurpi and he fired at the witnesses. The witnesses hid themselves in the field and accused ran away towards the village. The dead body of the deceased Rajni was found half-naked; that in the post mortem examination report, hymen was found torn and blood was found and in the opinion of the doctor death was caused by cutting the neck further opining that there was possibility of rape being murdering her; that the accused had fired in the village in front of the house of first informant and threatened the wife of informant and other people; that on way to the police station, accused had again confronted the informant and threatened him with dire consequences upon which the informant retreated to the village; thereafter again, the first informant left for police station to lodge the report. It was further observed that at the time of arrest of the accused country made pistol was recovered and on his pointing out a Khurpi was also recovered and in the report of the serologist blood stains were found on the Khurpi.

Learned counsel for the appellant assailed the findings of the trial court inter-alia on the premises; firstly, that the the presence of the witnesses at the time of incident is within the realm of grave doubt. It is submitted by counsel for the appellant that P.W. 1 Vinod Kumar being father of the deceased, his presence at the place of occurrence gives room to doubt elucidating further it was per chance that he happened to be at the place of occurrence and by this reckoning, he cannot be regarded on a higher pedestal than mere a chance witness. He further argued that there was no occasion for him to have visited the Lahi field at the relevant time. Next submission vehemently urged is that the first information report was prepared at the police station after consultation and deliberation attended with further submission the delay in lodging the report was inordinate and no plausible explanation has come forth and whatever has been stated explaining the delay is embroidered and is not acceptable. It is further argued that the prosecution has not adduced any independent evidence to prop up the testimony of P.W. 1 Vinod Kumar. He further argued that P.W. 2 Lalaram has been projected as a cogent, reliable and independent witness throughout the prosecution case to prop up a failing case but he being a very close associate of P.W.1 his testimony cannot be given any probative value.

Before we proceed further, we would like to observe here that the court of law has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of the witnesses.

With a view to appreciating the submission of counsel for the appellant in correct perspective, we have careful scrutinised the evidence on record. Firstly, we shall take up the effect of the submission of the counsel for the appellant whether the testimony of P.W.1 Vinod Kumar is to be rejected on account of his being father of the deceased and he happened to be at the field per chance. It brooks no dispute that P.W.1 Vinod Kumar reached by chance. No doubt, he has tried to explain his presence stating that on the date of occurrence, he was ill and he had asked his daughter Rajni to take a round of the field but when she did not return for half an hour he grew anxious. In the cross examination, he explained that his field was only 8-10 fields away from his house and it hardly took 10 minutes to reach the field. However, from a careful scrutiny of the testimony, it does not appear to us that there was any occasion for him to have immediately rushed to the field for looking for Rajni within a span of half an hour.

If we are inclined to accept the submission of the counsel for appellant that he is a chance witness and his testimony falls shorts of acceptability, we are afraid to say that mere fact that he was the father of the deceased and he happened to be at the field per chance, should not be read as a plausible ground to jettison his evidence. We would mince no words to say that the law requires that such testimony should be scrutinized more closely and more carefully. It is well enunciated that the relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. We are conscious that foundation has to be laid if plea of false implication is made and in that event the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. We should also bear in mind that if feelings run high and there is personal cause for enmity then there is a tendency to drag in an innocent person but at the same time, it is well settled that each case must be judged on its own facts.

The first question that crops up for consideration is whether P.W.1 Vinod Kumar was present at the place of occurrence immediately after the crime or not? To begin with, we have glanced through the allegations contained in the F.I.R. Indubitably, it is bereft of allegation of rape. It leaves no manner of doubt that on the basis of allegations in the F.I.R, initially the case was registered only under sections 302, 307, and 506 I.P.C. The second instance worthy of notice is that he did not tell investigating officer about commission of rape. The third instance worthy of notice is that he is also a witness of inquest but again he is not on record to have spoken to the investigating officer about rape committed on the girl. In his evidence in court, the witness tried to explain the omission to mention the allegations of rape by deposing that seeing the dead body of his daughter he was distraught and had lost his senses and it was for this reason that he omitted mentioning the fact of rape in the F.I.R and also to the investigating officer in his statement recorded under section 161 Cr.P.C. and also at the time of preparation of inquest report. Upon overall considerations of the facts and circumstances, we are constrained to observe that this explanation does not commend to us for acceptance. We feel called to say that it is an omission which goes to the root of the prosecution case and cannot be taken lightly as a venial omission which a father could omit to notice. If we closely examine the first information report, we would find that the first information report enumerates a detailed description of events including firing at the first informant and again firing in the village by the appellant in which no one, it brooks no dispute, sustained any injury and also mention of threats extended to him by the appellant while he was on way to police station to lodge the F.I.R also mentioning precise details of difficulty having been experienced by him in reaching the police station. In this backdrop, the omission to mention about rape in the first information report and also during investigation cannot be treated to be a trivial omission and assumes great importance and in the circumstances, the only irresistible conclusion which could be drawn is that till the post mortem report confirmed that deceased was also raped no one had any iota of idea that the deceased had been ravished. What is further worthy of notice is that in order to get over the difficulty of conflict between the post mortem report and the ocular testimonies, the witnesses, it would appear, have modulated their statement to suit the prosecution case so much so that P.W.1 Vinod Kumar stated that when he had seen the dead body, her salwar and under wear were found pulled down and he had pulled the same up. This explanation, in our considered opinion, is an after thought and does not commend to us for acceptance also considering that that it was for the first time in court that this explanation was offered. In the above perspective, we feel called to observe that the omission on the part of the first informant to notice and to mention to the investigating officer that the dead body was found partially naked, her salwar being pulled down below her waist, foments serious doubt about the presence of the first informant immediately after the occurrence. It is also significant to mention that the investigating officer did not notice any sign of rape. The investigating officer in his statement mentioned that he did not notice any sign of commission of rape. He inquired from the doctor who was conducting the post mortem examination whether rape had been committed ostensibly on suspicion that some blood was noticed by him on the Salwar. The explanation of the first informant that he had pulled up the salwar and underwear also appears to be an after-thought to give cogency to the prosecution and does not commend to us for acceptance particularly regard being had to the fact that the investigating officer did not notice any thing unusual while mentioning about the cloths worn by the deceased in the inquest report. As stated supra, according to the own statement of the investigation officer, he had found some blood on salwar and it is for this reason that he had inquired from the doctor who was conducting post mortem examination whether the deceased had been raped or not.

Another significant aspect which leaves us in the realm of doubt about presence of the first informant is the explanation offered for lodging the first information report belatedly. According to the first informant, occurrence took place at about 1 p.m. The report had been lodged at 6.30 p.m. I.e after about five and half hours, notwithstanding the fact that the distance of the police station from the place of occurrence was only 7 Km. He tried to explain the delay in lodging the report by stating that when he alongwith P.W.2 Lalaram reached near the field where-from shrieks of his daughter were emanating, appellant/accused emerged from the field and seeing them, he fired at them two shots in succession and thereaftess who according to the prosecution case has fully corroborated the testimony of P.W. 1 Vinod Kumar. To prop up r, when he and Lala Ram hid themselves in the standing crop in nearby field, the accused walked away to the village where he again fired three shots at the house of the informant. This version of the P.W.1, we are afraid to say, does not find corroboration from any other witness of the vicinity or from any one in the village including the wife of P.W.1 who was allegedly threatened by the appellant. To cap it all, the investigating officer did not find any cartridge from the places nor he is shown to have prepared any site plan. We find force in the submission of the counsss who according to the prosecution case has fully corroborated the testimony of P.W. 1 Vinod Kumar. To prop up el for the appellant that the theory to this extent has been concocted to explain the delay in lodging the report and further to explain the absence of any other independent witness. In yet another bid to explain the delay, first informant mentioned that while he was on way to lodge the report, he stumbled across the accused near a 'Madhai' who again threatened him by waiving a country made pistol upon which he retreated to the village. This fact does not find support or corroboration either from any witness or from any site plan prepared by the investigating officer. It is mentioned that he again set out from the village to lodge the report furtively making a detour through the fields. The language of the first information report is also worthy of notice. The informant specifically mentioned that after the report had been scribed by Ashwani Sharma on his dictation, any how he came to lodge the report stealthily lurking from field to field. The language of the report clearly shows that the report was prepared after reaching the police station and not scribed at the place mentioned by the first informant. When specific question was posed to this witness, he could not explain the reason as to how he could mention all the precise details in the report without being aided by anyone at the police station. In the perspective of the above discussion, the only irresistible conclusion that boils down is that immediately after occurrence he was not present at the scene of crime and his deposition that he saw accused emerging from the field carrying a country made pistol and a blood stained khurpi in his hands is far fetched and falls short of acceptability.

The next evidence adduced is that of P.W. 2 Lalaram. This witness has been projected by the prosecution as an independent witness who according to the prosecution case has fully corroborated the testimony of P.W. 1 Vinod Kumar. To prop up his cogency, and his independence, it has been stated that he was residing in the village and he accompanied P.W. 1 to the place of occurrence and he kept company through out with the dead body. This witness, it would clearly transpire, has also modulated his statement to suit the prosecution case as to avoid appearing to be incongruous with the testimony of P.W.1. Certain grey areas in his testimony are writ large. Firstly, it is worthy of notice here that this witness, for the first time in court deposed that the clothes of the deceased were pulled up by P.W. 1 which fact did not find mention either in the F.I.R. Nor he is shown to have divulged this information to the investigating officer by him. This witness is also witness of inquest but this fact does not find mention in the inquest report as well. P.W. 1 Vinod Kumar explained that seeing the dead body of his daughter, he lost his mental equilibrium and being distraught, he did not mention the fact about rape to the investigating officer but what prevented P.W. 2 from mentioning this fact to the investigating officer. Similar fault lies with this witness who for the first time deposed this fact in the court and in our considered opinion, his testimony also does not commend to us for acceptance. We are constrained to say that there was no occasion for him to be available to accompany P.W. 1 for a short distance and story to this extent has been coined and added to buttress the prosecution case and it leaves no room for doubt that his name has been introduced by the P.W. 1 because of his camaraderie and proximity with P.W.1. The suggestion to this effect was also made to P.W. 2 in the cross examination. The Sessions Judge has failed to discern the infirmities inhering the evidence of the witnesses and erroneously gave probative value to their testimonies.

Yet another circumstance upon which the trial court has bestowed reliance as being sturdy evidence is the recovery of khurpi on the pointing out of the appellant and the fact that the same was found smeared with blood which according to the report of serologist had by then disintegrated and again recovery of a country made pistol from the accused at the time of arrest. If the recovery of khurpi is admissible under section 8 of the Evidence Act then it is not connected with the crime because the serologist report does not conclusively connect the khurpi as a weapon of crime inasmuch as, as stated supra, in the serologist report blood was found to have disintegrated. In our considered view, the recovery of khurpi is also not admissible under section 27 of the Evidence Act simply for the reason that it was not recovered pursuant to any disclosure statement. The investigating officer (P.W.6) categorically admitted that khurpi was not recovered pursuant to any disclosure statement. Section 27 lifts the ban against the admissibility of the confession/admission made to the police to a limited extent by allowing proof of information of a specified nature furnished by the accused in police custody and in that sense, section 27 is considered to be an exception to the rules embodied in sections 25 and 26 of the Evidence Act.

In connection with the above, the case in point is Bahadul v. State of Orissa AIR 1979, SC 1262, in which the Apex Court in para 4, made the following observation:

" As there is nothing to show that the appellant had made any statement under S. 27 of the Evidence Act relating to the recovery of this weapon hence the factum of recovery thereof cannot be admissible under Section 27 of the Evidence Act. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. In these circumstances, the mere production of the tangla would not be sufficient to convict the appellant."

Yet another aspect worthy of consideration relating to the recovery of Khurpi is that according to the prosecution case when first informant along with P W 2 reached the place of occurrence, they saw the accused emerging out of the field carrying a pistol and a khurpi alongwith him and seeing them, he fired two shots at them but he is not said to have thrown the khurpi. The witnesses had seen him in broad day light and there was no reason for him to have concealed the khurpi. After he had left the place, it is stated, the accused went to the house of the first informant and threw gauntlet to the villagers and in furtherance, fired three shots. In this backdrop, the act attributed to him relating to concealment of khurpi under bricks in his tube well which is very close where dead body was lying, becomes suspicious and testimony to this extent becomes impeachable and does not inspire confidence.

We are of the view that the Sessions judge has wrongly considered the recovery of khurpi as an incriminating circumstance against the appellant.

In view of the discussion made above we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt and the appellant is acquitted of the charges and the judgement and order of the court below is set aside.

In the result the appeal is allowed. The order dated 10.9.2008 passed by Addl. Sessions Judge/Special Sessions Judge (E.C. Act) in S.T. No. 1385 of 2006 is set aside. The appellant is acquitted of the charge. The appellant is languishing in jail. He shall be released forthwith unless wanted in any other case.

The reference made by the Sessions Judge for confirmation of death sentence is also rejected.

Dated:Oct 19, 2010.

o.k/MH.