Shanker vs State Of J&K on 31 March, 2022

[Cites 22, Cited by 0]

Jammu & Kashmir High Court

Shanker vs State Of J&K on 31 March, 2022

1. This appeal by the appellant ('the accused') is directed against the judgment of conviction dated 28.12.2013 and order of sentence dated 31.12.2013 passed by the learned 3rd Additional Sessions Judge Jammu (Designated Fast Track Court for Rape Cases), [hereafter for short 'the trial Court'] whereby the accused has been held guilty for commission of offences punishable under Sections 302/376 RPC and sentenced to death.

2. Before we advert to the grounds of challenge urged by Ms. Mandeep Reen, learned counsel representing the accused, to assail the impugned judgment and the order of 2 CRA No.9900002/2014 sentence, it is necessary to first elude to complete resume of the prosecution case.

3. On 21.04.2010, at about 11.15 PM, the police of Police Station Satwari received an information through reliable sources that a dead body of an unidentified minor girl of 7/8 years of age was lying below the Digiana Pulli. Since the death of a human being had happened under mysterious circumstances, as such, with a view to find out the cause of death, proceedings under Section 174 Cr.P.C were initiated by Shri Rajesh Sharma, Sub Inspector. He proceeded to the spot and gathered people from the nearby area. There was a missing report lodged with regard to a girl, daughter of one Babu Ram R/O Khajwar Chatterpur (M.P), residing temporarily in a Jhuggi at Shastri Nagar, Jammu, as such, said Babu Ram was called, who identified the dead body to be that of his minor daughter. The identification memo of the deceased was prepared and dead body taken into custody after collecting the samples of blood stained clay and the simple clay from the spot. The samples were seized for chemical analysis. Mr. Rajesh Sharma, SI, who was holding the inquest proceedings, also prepared the site plan of the place of incident, the photographs of the dead body were taken and the dead body was dispatched to Government Medical College, Hospital, Jammu for post-mortem. During 3 CRA No.9900002/2014 the post-mortem, one shirt of the deceased was seized as a piece of evidence and the same, after proper sealing, was also sent for chemical analysis. The shirt was sealed with a ring, which was kept on proper supardnama. Viscera was also sent for chemical examination to the Forensic Science Laboratory Jammu.

4. After completion of the Post-mortem and other requisite formalities, the dead body was handed over to the legal heirs for performing the last rites. The seized packet of shirt, blood stained clay and simple clay were got re-sealed from the Executive Magistrate First Class and then sent to FSL Jammu for their examination and expert opinion. After the Post-mortem report and the viscera report were received, the Investigating officer recorded the statements of material witnesses under Section 175 Cr.P.C. During the inquest proceedings it emerged that Babu Ram Anuragi, the father of the deceased, along with his family and fellow villagers, had been living in temporary huts, (Jhuggies) at Shastri Nagar and would usually go out for work during the day time. It was on 15.04.2010 during the day time that accused, who is also a resident of Chatterpur (M.P), came to the Jhuggi of Babu Tram Anuragi, where he used to frequently visit for providing toffees etc. to the deceased. On that day the accused told the deceased to massage his body and thereafter he will give her 4 CRA No.9900002/2014 toffees. After getting massage on his body, the accused went out of the Jhuggi and was followed by the deceased. It also came to fore that in the same evening the accused and the deceased were spotted near Digiana Pulli, holding each other's hand. On 21.04.2010, the dead body of the deceased was found beneath the Digiana Pulli, which was lying concealed in a Cabin of the Pulli. The other clothing i.e. Shalwar, underwear and Chappels were not found on her body. After receiving the report of autopsy of the deceased and on the basis of other material and evidence collected during the inquest proceedings it was established that it was the accused who enticed the deceased and took her to Digiana Pulli with the evil intention to force rape upon her. The accused, after completing his evil desire, murdered her in order to save him from legal proceedings. He concealed the dead body below the Pulli. Sub Inspector Rajesh Sharma, after completing the inquest proceedings with the aforesaid conclusion, referred the matter the SHO Police Station Satwari for taking appropriate further course of action.

5. On the basis of facts and circumstances of the case that had emerged in the inquest proceedings, FIR No. 127/2010 was registered in Police Station, Satwari, and the investigation taken over by Inspector Bishnesh Kumar, who, during the course of further investigation seized the file of 5 CRA No.9900002/2014 inquest proceedings and arrested the accused on 05/08/2010. The accused, while being in custody, made a disclosure statement which led to the recovery of one white colour shalwar, a black colour underwear and a pair of chappal belonging to the deceased which were lying concealed below the bushes near the place of occurrence. The seized belongings of the deceased were identified by her legal heirs. These articles were sealed in different packets with use of a ring which was kept on proper supardnama. The accused was subjected to potency test and report in this regard was obtained. The demarcation of place of incident was done with the help of Patwari concerned and revenue record in this regard was also obtained. The statement of material witnesses were got recorded under Section 164-A Cr. P.C, whereas the statements of other witnesses were recorded under Section 161 Cr. PC.

6. From the inquest proceedings and on the basis of evidence, oral and documentary, and the disclosure statement of the accused and consequent recovery of the clothes of the deceased, the Investigating Officer found the following facts established.

"That Babu Ram Anuragi resident of Chattarpur (MP) along with his family and fellow villagers was residing in Jhuggi at Shastri Nagar, Jammu. On 6 CRA No.9900002/2014 15.04.2010, when Babu Ram, father of the deceased was out for work during the day time, the accused, who used to live in a Jhuggi situated at a distance of 300/400 meters away from the Jhuggi of Babu Ram, visited the Jhuggi of Babu Ram. He laid over on a cot kept below a tree in the compound and asked the deceased to massage his body, for which he promised to give her toffees. The deceased massaged the body of the accused. Thereafter, the mother of the deceased namely Raja Bai helped the deceased in taking bath. The accused, who was lying on the cot, kept staring at the deceased who was nude. This was objected to by Raja Bai, the mother of the deceased. After giving her bath, the mother of the deceased helped her putting on a white colour shirt and shalwar besides black underwear. The further investigation revealed that at about 4.30 P.M, the accused took the deceased out of Jhuggi along with him and did not return till late in the evening. The family members of the deceased started making search of her but no clue was found. The matter was reported to the Police on 18.04.2010 and an entry in the daily diary register at serial No. 16 was made with regard to the missing of the deceased. During investigation it also emerged that on 15.04.2010, some eye witnesses had seen the accused taking the deceased towards Digiana Pulli. It further came to the light that the accused, seeing the deceased taking bath in a nude condition, got sexually aroused due to which he, with a criminal intention, enticed the deceased and took her from her Jhuggi to Digiana Pulli. Digiana 7 CRA No.9900002/2014 Pulli has nine cabins out of which four existing in the middle are for drainage of dirty water whereas five other cabins remain empty. In one of the said cabins, the accused accomplished his criminal act.

He removed the lower clothes of the deceased and committed forcible sexual intercourse on her. It further emerged that with a view to stop her from crying, the accused put his hand over her mouth and committed her murder. The accused concealed the dead body in another cabin. He came to the place of the incident next day to destroy the evidence and in the process he concealed the shalwar, underwear and a pair of chappal of the deceased in the bushes adjacent to the aforesaid cabin."

7. It is on the basis of this investigation and collection of material evidence as stated herein above, the investigating officer found prima facie the commission of offences under Section 376/302 RPC committed by the accused and accordingly presented the challan before the competent court of law for judicial adjudication.

8. The trial court, vide its order dated 01.12.2010, framed charges against the accused for commission of offences punishable under Sections 302/376 RPC. The accused pleaded not guilty to the charges and claimed to be tried.

9. To sustain the charge against the accused, the prosecution examined as many as 16 witnesses. After the 8 CRA No.9900002/2014 closure of the prosecution evidence, the statement of the accused under Section 342 Cr. P. C. was recorded and the incriminating circumstances appearing in the prosecution evidence were put to him. The accused denied the truth of the prosecution evidence but chose not to lead any evidence in rebuttal.

10. It may be of some relevance to note that in the instant case the accused, who could not afford a defence counsel of his choice, was defended by Mr. Rakesh Kumar, Advocate as amicus curiae before the trial Court.

11. The impugned judgment of conviction and order of sentence is challenged by the accused, inter alia on the ground that the trial court has not appreciated the evidence in proper perspective and has believed the prosecution story as a gospel. It is contended that the prosecution has miserably failed to connect the accused with the commission of the crime alleged. There is no sufficient convincing evidence on record which proves beyond reasonable doubt that the deceased was last seen with the accused nor is there sufficient evidence with regard to the time gap between the last seen and the occurrence. It is urged that as per the prosecution, the accused was last seen with the deceased in the afternoon of 15.04.2010 and the dead body of the deceased was recovered on 21.04.2010. The exact time of 9 CRA No.9900002/2014 occurrence is not indicated by any of the witnesses including the expert witness i.e. the Doctor, who conducted the autopsy. It is thus submitted that having regard to a long gap between the alleged last seen and the time of occurrence, there is every possibility of a person or persons other than the accused being author of the crime. With regard to the disclosure statement and the recovery effected in pursuance thereto, learned counsel appearing for the accused submits that the evidence with respect to the disclosure statement and the recovery of clothes of the deceased is too shaky to inspire the confidence of the Court. The witnesses to the disclosure statement and the recovery have contradicted each other and have, therefore, put a question mark with regard to the genuineness of both the disclosure statement and the recovery made in pursuance thereof. The conduct of the accused absconding from the day of occurrence, as highlighted by the prosecution and accepted by the trial Court, is also not proved beyond any reasonable doubt. It is argued that the accused, right from the date of occurrence till he was arrested, was all along in Jammu. With regard to the observation of the trial Court, that since the accused has not given satisfactory explanation with regard to his presence on the date of occurrence and other incriminating evidence that had come against him, it is submitted that the learned trial 10 CRA No.9900002/2014 Court has not appreciated that burden of proof of the guilt of the accused is on prosecution and not on defence. The accused has a right to remain silent or simply deny the so called incriminating circumstances emerging against him in the prosecution evidence. Learned counsel appearing for the appe4llant/accused further argues that even the medical evidence is not convincing and establish anything beyond reasonable doubt to prove that the deceased, before her death, was subjected to sexual assault. It was not possible for the doctor to give any definite opinion as the dead body was completely putrefied. Even the motive, which has been used against the accused as a circumstance, is also not proved. The statement of the mother and the grandmother of the deceased are so contradictory in nature that it would be travesty of justice to rely upon their statements and condemn the accused to death.

12. Lastly, it was argued by Ms. Mandeep Reen, learned counsel that viewed from any angle it was not a case falling in the category of 'rarest of the rare' as would call for imposition of death penalty. She argues that in a case built on purely circumstantial evidence and when there is even residuary doubt about the complicity of the accused in the crime, it is highly unsafe to impose death penalty on him.

11 CRA No.9900002/2014

13. Per contra, Mr. Amit Gupta, learned AAG appearing for the State argues that the prosecution has firmly and conclusively established all the circumstances which when linked together do form a chain giving rise to a hypothesis which is inconsistence with the innocence of the accused. Taking us through the entire evidence led by the prosecution, learned AAG submits that the prosecution has proved that deceased was last seen with the accused in the afternoon of 15.04.2010 when he enticed away the deceased minor for providing her toffees. In this regard, he seeks support from the statements of mother of the deceased PW-5 Raja Bai and her grandmother PW-14 Bhawani Bai. He argues that the other important circumstance, that is, the disclosure statement made voluntarily by the accused in Police custody and which led to the discovery/recovery of the underclothes of the deceased from the bushes near the place of occurrence, too have been conclusively proved. Reliance in this regard is placed by learned counsel on the statement of PW-5 Raja Bai and PW- 8 Kanchi. He submits that the disclosure statement is also proved beyond any reasonable doubt by its scribe inspector Bishnesh Kumar, who has proved the disclosure statement (EXTP-4) in his statement. To the similar fact is the statement with regard to the discovery of underclothes of the deceased. The learned AAG argues that in the instant case 12 CRA No.9900002/2014 which is founded on the circumstantial evidence, the motive and the conduct of the accused after commission of crime are relevant circumstances to be kept in mind by the Court. He submits that both PW-5 and PW-14 have indicated the motive which led the accused to commit rape upon the minor girl and thereafter conceal and destroy the evidence. He further submits that unsatisfactory explanation to the incriminating evidence that has been led by the prosecution, in terms of Section 342 Cr. P. C. reflects about the conduct of the accused and fortifies the chain of circumstances which have otherwise, been conclusively proved. Referring to the medical evidence on record, learned counsel contends that it may be true that the doctor, who conducted autopsy, has not in so many words given his opinion with regard to commission of rape upon the minor before she was murdered, yet the nature of injuries noted by the doctor do indicate beyond any reasonable doubt that the deceased, before she was killed, was subjected to forcible sexual intercourse.

14. Having heard learned counsel for both the sides and perused the material on record, We find that in the instant case there are no eye witnesses to the commission of crime and the entire case of the prosecution rests on circumstantial evidence. Therefore, before proceeding further to analyze the evidence on record and appreciate the rival contentions, it is 13 CRA No.9900002/2014 necessary to remind ourselves about the well settled legal position that when the case of the prosecution is founded on circumstantial evidence, such evidence must satisfy the tests very succinctly, laid down by a Three-Judge Bench of Hon'ble the Supreme Court in the case of Hanumant v. State of M.P, AIR 1952 SC 342, which has become locus classicus on the point. Relevant excerpt of the judgment is reproduced here under:-

"It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

This judgment has consistently been followed by Hon‟ble Supreme Court in series of judgments delivered thereafter.

15. In Venkatesan v. State of Tamil Nadu, (2008) 8 SCC 456, another Three-Judge Bench of Hon‟ble the Supreme Court discussed and re-stated the principles for founding conviction on the basis of circumstantial evidence. Surveying the case law on the subject, in particular the judgment 14 CRA No.9900002/2014 of Supreme Court in the case of Hanumant (supra) and Sharad Birdhichand Sarda v. State of Maharastra, (1984) 4 SCC 116, reiterated the settled position that the conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law laid down in the case of Hanumant (supra) and followed consistently in series of judgments by Hon‟ble the Supreme Court.

16. This Court has elaborately discussed the tests which are required to be satisfied before guilt of accused is held proved by circumstantial evidence in the judgment rendered in the case of Kamlesh Kumar v. State of J&K, (Criminal Appeal No. CRA No. 18/2017 decided on 23.03.2022). What is held by this Court in the said case in paragraph No. 15 to 23 reads thus:-

"15. Before we delve further into the facts and circumstances of the instant case, we need to understand what the circumstantial evidence exactly is. The word "circumstantial"

itself implies that what is evident directly from the circumstances in any particular case, even though, the evidence itself is not direct, as is well said that a witness may lie but not the circumstances. It is, therefore, not in dispute that many a times circumstantial evidence becomes the only source for convicting a person. Chief Justice M Momir in the book "Textbook on The Law of Evidence" at page 13 very elegantly differentiates between direct and circumstantial evidence and points out that: English text writers divide the evidence into (a) direct or positive evidence and (b) indirect or circumstantial evidence. In this sense direct evidence is that which goes expressly to the very point in question and proves it, if believed, without aid from inference or deductive reasoning, e.g., eye witness to a murder is direct evidence. The circumstantial evidence does not prove the point in question directly, but establishes it only by inferences. Thus, if there is no eye witness to a murder, the fact that A had the motive to murder B or that A was seen running away with a blood stained knife from B‟s room where B was found dead immediately after B‟s cries were heard would be circumstantial evidence as against A. 15 CRA No.9900002/2014

16. Similarly, G.S.Pande, a retired Professor of Law from Lucknow University has explained the concept of circumstantial evidence in the following words:-

"Circumstantial evidence is that which relates to various circumstances which are associated with the real point in issue in such a way as to help the Court in coming to a conclusion about the existence or non-existence of the fact in issue. It is often said that a witness may tell a lie but circumstances cannot. It is an exaggeration of its importance though it contains a grain of truth insofar as circumstances have no volition and they cannot have interest and motive which inspire a human being to give false evidence. However, circumstances can also mislead the Court. Sometimes they can also be manipulated by human agency."

17. What is said by Prof. G.S.Pande reproduced herein must serve as a note of caution for all Courts that they must, before arriving at any judgment, take into consideration the crucial fact that circumstantial evidence is not manipulated by any human agency, which includes the police or other authority investigating the case. Should they fail to take into account this important aspect of circumstantial evidence, there is every likelihood of an innocent person being wrongly sent to gallows or jail, as the case may be for no fault except that circumstances implicate him in any particular case.

18. While appreciating the evidence on record in particular the circumstantial evidence, we need to keep in mind the cardinal principal of criminal jurisprudence that accused is presumed to be innocent till proven guilty and the burden to establish the guilt of the accused is on the person or authority that brings out charge against him. It is for the prosecution to prove its case by leading evidence beyond any reasonable doubt. The evidentiary value of the circumstantial evidence acquires immense importance in the absence of direct evidence in any given particular case. The circumstantial evidence essentially means establishment of a fact from which some other fact is inferred. It deals with a fact on which an inference is to be founded, as there could be fallibility of inference, as such, it is not considered best type of evidence.

19. At this point, we would like to refer what was pointed by Sir Alfred Wills in his book on „circumstantial evidence". The author delineated and explained the rules that are to be kept in mind while following the circumstantial evidence in the following manner:-

(1) The facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

16 CRA No.9900002/2014

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

20. Having said that, we cannot give diminished importance to the views of Baron Parke when he says that higher degree of evidentiary value is required to be accorded to the circumstantial evidence. In the words of Boren Parke, in the circumstantial evidence, if cogent and properly let in is of better probative value than direct evidence, for any scheming witnesses might concoct a well-knit story. The well known jurist Salmond, too, endorses what Baron says to conclude that "it is usually more difficult to fabricate a convincing chain of circumstance than to utter a direct lie."

21. It is, thus, trite that before convicting a person on circumstantial evidence alone, Court must fully satisfy itself that circumstances are conclusively established and point convincingly to the guilt of the accused and that the accused is unable to satisfactorily explain the circumstances that leave him/her in dock.

22. Hon‟ble the Supreme Court in the case of Eradu v. State, AIR 1956 SC 316 held circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused.

23. In Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Hon‟ble the Supreme Court elaborated the five golden principles of circumstantial evidence laid down in Hanumant v. State of M.P., AIR 1952 SC 343, which are being followed consistently in the later cases. These five principles are as follows:-

"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

2. That facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

3. The circumstances should be of a conclusive nature and tendency.

17 CRA No.9900002/2014

4. They should exclude every possible hypothesis except the one to be proved, and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that act must have been done by the accused."

17. It is in the light of this settled legal position we need to determine whether the circumstances pleaded and established by the prosecution before the trial Court meet and satisfy the tests laid down by Hon‟ble the Supreme Court consistently since the judgment in Hanumant (supra) and re-stated by us hereinabove.

18. The circumstances, which the prosecution has relied upon in the case on hand and, which, the trial Court has found to satisfy the tests laid down for resting the conviction on the basis of circumstantial evidence, are in the following manner:-

(1) The deceased was last seen with the accused on 15.04.2010 and thereafter her dead body was found beneath Digiana Pulli on 21.04.2010;

(2) The disclosure statement of the accused leading to recovery of underclothes of the deceased at his instance;

      (3)    Motive of crime;

      (4)    Direct evidence; and

      (5)    Conduct of the accused.

We will now take these circumstances one by one to find out whether the prosecution has led evidence, which is sufficient to connect the accused with the crime beyond any reasonable doubt. This would call for 18 CRA No.9900002/2014 in-depth analysis, examination and marshalling of the prosecution evidence.

Last seen theory:

19. The foundation of this theory lies on the principle of probability, cause and connection as no fact takes place in isolation. Basically, it means that if an event takes place then other events also take place which are probable consequences of a major event or is related to it either retrospectively or prospectively. These inferences or presumptions are drawn logically according to how a reasonably prudent man will connect the dots in the particular scenario. The theory derives its relevance from Section 7 of the Evidence Act in which it is provided that if any fact related to the occasion, cause or effect leads to the circumstance in which that thing occurred or it provided an opportunity for the occurrence of that thing then those facts will be relevant. And in the last seen theory also, the person who was the last present with the victim would have a reasonable opportunity to commit the crime. As is provided under Section 114 of the Evidence Act, the Court can presume that certain facts exist if some other facts are proved to be existing in the cases of natural events, human conduct, and public and private business. Even under Section 106 of the Evidence Act, the burden to prove a fact is on the person who has especially known about that particular fact or circumstance. Though the last seen theory, if proved, relieves the prosecution from the burden of proving guilt by direct evidence, yet it is week evidence and needs to be corroborated with other factors like motive and conduct of the accused before and after the commission of crime.

19 CRA No.9900002/2014

20. In the instant case the prosecution, with a view to prove that the deceased was last seen with the accused on 15.04.2010, relies upon the testimonies of PW-5 Raja Bai and PW-14 Bhawani Bai, who are the mother and grandmother of the deceased respectively. PW-5 Raja Bai, in her examination-in-chief recorded on 31.03.2012, states that on 15.04.2010 the accused had visited their house during the day time and laid down over a cot. She further states that she took her daughter towards the tap and gave bath to her. When she was putting on underwear on the deceased the accused was continuously staring on the naked body of her daughter, which she objected. She thereafter started filling water from the tap and in the meanwhile the accused took her daughter out on the pretext of offering her toffees. When her daughter did not return, a search was made. It was only after 2/3 days a report was lodged in Satwari Police Station and later the dead body of her daughter was found lying beneath Digiana Pulli. During her entire statement, Raja Bai does not indicate the presence of her mother- in-law- PW 14 Bhawani Bai in the house at the time when the accused had visited them. In her cross-examination she states that the water in the tap had come at about 4 P.M and many other people of the vicinity had gathered a round the tap for fetching the water. The water tap is situated about ten feet away from her Jhuggi and the outer door of her Jhuggi is not in front of the tap and it is on the opposite side. The witness, however, clarifies that she had not herself seen her daughter going along with the accused. It has also come in her statement that on the same evening she narrated everything to her husband about missing of her daughter. In the missing report lodged by the husband of the witness at Police Station 20 CRA No.9900002/2014 Gandhi Nagar, there is no mention of the accused being present in the Jhuggi during the day time or that the deceased had left with the accused and that was the time when the two were last seen together.

21. It is interesting to note that the Investigating officer has not even prepared the site plan to indicate the position of the water tap, the cot where the accused was lying on the fateful day and the Jhuggi of the deceased. In the absence of site plan, it is difficult to comprehend and appreciate properly the statement of PW-5 Raja Bai and PW-14 Bhawani Bai. From careful reading of testimonies of these witnesses following things can be seen to have been established:-

(i) That the water tap, where PW Raja Bai gave bath to the deceased, is situated outside the four walls of the Jhuggi and cannot be seen from within the Jhuggi or its compound.

(ii) It appears that in the compound of the Jhuggi there is a tree under which the accused was lying on a cot on the fateful day.

(iii) That the accused was a frequent visitor to the Jhuggi of the deceased;

(iv) PW Raja Bai has not confirmed the presence of PW Bhawani Bai in the Jhuggi on the fateful day;

22. PW Bhawani Bai, in her testimony, has not supported the statement of PW Raja Bai that, when she was giving bath to her deceased daughter, the accused was staring at her. PW Bhawani Bai, instead, states that the accused asked the deceased to rub his back as he was having back pain. He also promised the deceased to give her toffees in lieu thereof. She, 21 CRA No.9900002/2014 however, states that after the deceased had rubbed the back of accused for some time, the accused told her to accompany him and offered her to give toffees. It has also come in her statement that she mostly resides in her village in M.P and visits her son in Jammu off and on. She also claims to have narrated the whole story to Babu Ram.

23. As observed above, there is no site plan of the place of last seen prepared by the Investigating Officer, yet from the statement of PW Raja Bai and PW Bhawani Bai it clearly comes out that the Jhuggi of the deceased is situated on a plot having four walls around it with only one exit. The water tap exists outside their plot. The Investigating officer has also not very clearly explained as to why the statement of this key witness to the last seen theory was not recorded immediately. It may be noted that the statement of PW-14 was recorded by the Investigating officer under Section 161 Cr.P.C on 31.08.2010 whereas the statement of PW-5 Raja Bai was so recorded on 08.08.2010. In the absence of clear explanation with regard to the delay in recording the statement of Bhawani Bai, the presence of Bhawani Bai in the Jhuggi on the fateful day becomes highly doubtful. The deceased went missing on 15.04.2010 and her dead body was found beneath Digiana Pulli on 21.04.2010, whereas the statements of the material witnesses were recorded in the month of August, 2010, almost four and a half months after the occurrence. The Investigating Officer has sought to explain that the witnesses, which included the close relatives of the deceased, after performing the last rites of the deceased went to their village in Madya Pradesh and came after two months and, therefore, there was delay in recording their statements. The Investigating officer also puts 22 CRA No.9900002/2014 forth the excuse of being busy in other matters which, as per the Investigating officer, was also partly the reason for delay in recording the statements of the relevant witnesses.

24. The explanation tendered is not acceptable for the reason that, if, as per PW-5 Raja Bai and PW-14 Bhawani Bai, the deceased was last seen with the accused and which fact they had disclosed to PW-Babu Ram, the father of the deceased, nothing prevented him to report the matter to the police naming the accused as the possible culprit having enticed away his daughter from the Jhuggi on the fateful day. From evidence on record it is abundantly clear that till 18.04.2010 even the missing report was not lodged what to speak of naming the accused who, as per the prosecution, was last seen with the accused. Even in the missing report lodged on 18.04.2010 PW-Babu Ram has not named anybody including the accused as a suspect in the kidnapping of his daughter. Apart from the prosecution case that the deceased was last seen with the accused around 4/4.30 PM when he took her away along with him for offering Toffees, the prosecution has also relied upon the statement of PW- Baldev Raj and PW Wazir Alam. As a matter of fact statement of PW Wazir Alam is recorded under Section 164-A Cr.P.C. PW-Baldev Raj has not supported the prosecution case to the extent that he had seen the deceased and accused together near Digiana Pulli but states that he was so told by PW Wazir Alam. Statement of Wazir Alam could not been recorded in the trial because he had died by that time. Even if we look to the statement of Wazir Alam recorded under Section 164-A Cr.P.C, he is not specific either about the place where he saw the deceased and the accused together or with 23 CRA No.9900002/2014 regard to the time when he spotted them together. Perhaps, he could have clarified the position had he been in a position to depose in Court.

25. Whether or not the statement of the witness recorded under Section 164-A Cr.P.C could be relied upon when the witness has not been able to appear during the trial for his examination and cross-examination, need not to be gone into for the reason that his statement recorded under Section 164-A Cr.P.C has not specifically been put as an incriminating circumstance to the accused and, therefore, the accused had no opportunity to explain. It is settled legal position that the incriminating circumstances or evidence which is not put to an accused under Section 342 Cr.P.C and the accused is not given opportunity to explain his position, the same cannot be relied upon as a relevant fact. The trial Court too has not given any importance to the statement of PW Wazir Alam but has concluded that the testimony of PW-5 Raja Bai, which is corroborated by PW-14 Bhawani Bai, is sufficient enough to conclude that the deceased was last seen with the accused.

26. With regard to long gap of six days between the deceased last seen with the accused and recovery of her dead body beneath Digiana Pulli, the trial Court has held that time factor does not play any significant role in the instant case. The trial Court has opined that it is a case where the dead body of the deceased is not recovered from an open area but was kept concealed inside a dry Cabin below Digiana Pulli, which was spotted by a rag picker in a decomposed condition on 21.04.2010. The trial Court has thus found the testimony of PW-5 Raja Bai and PW-14 Bhawani Bai convincing and credible and, therefore, concludes that the prosecution has proved 24 CRA No.9900002/2014 conclusively that the deceased was last seen in the company of the accused and in the absence of explanation by the accused as to when he parted the company, the same is believable and a relevant link in the chain of circumstances.

27. We have analyzed the reasoning given by the trial Court. However, we regret our inability to agree with the trial Court. The testimony of PW-5 Raja Bai and PW-14 Bhawani Bai are highly contradictory and full of inconsistencies. At the cost of repetition we may observe that PW-Raja Bai in her deposition does not even confirm the presence of PW-Bhawani Bai, whose statement under Section 164-A Cr.P.C was recorded on 31.08.2010 i.e. four and a half months after the occurrence. The Investigating officer has not been able to explain as to why statement of Bhawani Bai could not been recorded at least on 08.08.2010 when the statement of PW-4 Raja Bai was recorded. The depositions of the two witnesses and the facts and circumstances emerging therefrom get completely blurred because of non- availability of site plan indicating the position of Jhuggi, tap and cot available on record. The Jhuggi of the deceased is covered by four walls and the tap is outside the Jhuggi and, therefore, not visible from inside the Jhuggi. As per the statement of PW Bhawani Bai, the accused was lying on the cot under the tree in the compound of the Jhuggi, and, therefore, the statement of PW-Raja Bai, that the accused was staring at the deceased when she was giving her bath at the tap cannot be believed. It is true that PW-Ramesh Anuragi has stated in his deposition that his mother, Bhawani Bai, was living with his brother Babu Ram Anuragi but that does not lend credibility to the statement of Raja Bai and Bhawani Bai. PW-Raja Bai, in 25 CRA No.9900002/2014 her cross examination, has admitted that she did not see the deceased going along with the accused and does not even say that her mother-in-law PW Bhawani Bai had seen them going together. Had this happened in presence of Bhawani Bai, as a natural conduct, she would have immediately narrated it to Raja Bai. It is also pertinent to note that as per the statement of this witness as also the statement of PW-Babu Ram, the two witnesses narrated about the missing of the deceased to Babu Ram in the same evening. It is not thus understandable as to why a straightaway report was not lodged against the accused or the name of the accused was not disclosed to the police when the missing report was lodged.

28. Viewed from any angle, the evidence of PW-5 Raja Bai and PW-14 Bhawani Bai suffers from major contradictions and is full of inconsistencies. As per the prosecution story, the deceased was last seen in the company of the accused in the afternoon of 15.04.2010 and the dead body of the deceased was recovered on 21.04.2010. There is, thus, a gap of six days. Even the Doctor has not been able to give the exact time of death of the deceased.

29. In the case of State of U.P v. Satish, (2005) 3 SCC, 114, Hon‟ble the Supreme Court in paragraph 22 of the judgment has held thus:-

"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and 26 CRA No.9900002/2014 possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."

30. Similarly in the case of Ramreddy Rajeshkhanna Reddy and ors v. State of Andhra Pradesh, (2006) 10 SCC 172, Hon‟ble the Supreme Court summed up legal position with regard to last seen theory in paragraph 27 in the following manner:-

" 27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration."

31. The latest view of the Supreme Court on the theory is available in the judgment rendered in Shailendra Rajdev Pasvan v. State of Gujrat, 2020 (14) SCC 750. Paras 14 and 15 of the judgment are relevant and are, therefore, reproduced hereunder:-

"14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir, Rambraksh v/s State of Chhattisgarh , Anjan Kumar 27 CRA No.9900002/2014 Sharma v/s State of Assam following principle of law, in this regard, has been enunciated:-

"The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".

15. In the case at hand, evidence of PW-28 and PW-29, who were crucial to the case of prosecution to establish that deceased was last seen with Appellant Accused no.-1, is riddled with unexplained contradictions and thus were rightly dis-believed by the trial court. High Court committed an error of law in placing reliance upon the evidence of the aforesaid two witnesses. The High Court also failed to take into account the time gap between the point when the Accused Appellant No.-1 and deceased were seen together and when the death is alleged to have occurred. According to the prosecution evidence the two were seen together on 04.02.2001 at about 10:30 a.m. The dead body was recovered on 13.02.2001. Post- mortem was conducted on 14.02.2001. Although the possible time of death is not indicated in the post- mortem report but the Doctor who carried out the post-mortem opined in the statement that the time of death can be estimated to be 36 to 48 hours before the post-mortem . This clearly goes to show that there was a huge time gap between the point when the accused and deceased were last seen together and the time of death. This crucial fact has been miserably over looked by the High Court. Apart from Extra-Judicial Confession by Appellant Accused No.-1 no direct evidence was adduced by the prosecution to establish involvement of the accused in the alleged crime. Entire case of the prosecution was based on circumstantial evidence and theory of last seen together. The extra-judicial confession of Appellant No.-1 before the complainant and other relatives and recovery of the dead body were linked together by the prosecution to form a chain."

32. When we view and analyze the evidence led by the prosecution, particularly the testimonies of PW-5 Raja Bai and PW-14 Bhawani Bai, we clearly find that the prosecution has not been able to prove the last seen 28 CRA No.9900002/2014 theory firmly and conclusively and, therefore, the circumstance, that the deceased was last seen in the company of the accused before her death, cannot be said to form a link in the chain of other circumstances relied upon by the prosecution. The evidence led to sustain the theory of last seen put forth by the prosecution is too week and incredible to be relied upon to convict the accused.

Disclosure Statement:

33. As per the prosecution, disclosure statement is stated to have been made by the accused on 08.08.2010 in the presence of PW-5 Raja Bai, PW- 8 Kanchi and Ashwani Mangotra. From reading of the disclosure memo, it comes out that the accused, while being in custody of police since 05-08- 2010, made a disclosure statement to the effect that he had concealed one ladies Shalwar, one ladies underwear and one pair of plastic chapels in bushes near a Cabin under Digiana Pulli and that he only knew that these were kept concealed there. He also disclosed that he can lead to the place and can get these items recovered. This disclosure statement is signed by three witnesses, PW5- Raja Bai, PW-8 Kanchi and an independent witness, Ashwani Mangotra. Said Ashwani Mangotra could not be examined in Court as, by that time, he had died. That being the position, we have to look to the statements of PW Raja Bai and PW-Kanchi to test the veracity and admissibility of disclosure statement of the accused.

34. In her examination-in-chief, it is stated by PW Raja Bai that after 2/3 days of the missing of her daughter, a missing report was lodged with the police. Thereafter the police called them near Digiana Pulli where the dead body of their daughter was lying beneath the Pulli. They identified the dead 29 CRA No.9900002/2014 body as that of their daughter. The accused was arrested. The police called them in Police Station where in their presence the accused made his confession that he had killed their daughter. He also made a disclosure statement (EXTP-4) with regard to concealing of a Shalwar, one underwear and a pair of chappel belonging to her daughter beneath the Pulli. She has identified her thumb impression on the Fard-Inkshaf and has admitted its contents as correct. She also proves the recovery memo EXTP-4/1. The witness also identifies her thumb impression on EXTP 4/2 which was prepared on spot and thumb impression of the witness was taken on it.

35. PW-Kanchi has put up a new story. She claims that the dead body of the deceased was recovered at the instance of the accused and on the same day the accused produced a Shalwar, underwear and a pair of Chappels belonging to the deceased, which he had hidden.

36. On the basis of the above statements and the identification of the recovered items by PW Babu Ram Anuragi, the trial Court has concluded that the lower apparels of the deceased i.e. Shalwar, ladies underwear and a pair of chappels belonging to the deceased were recovered at the instance and on the basis of information supplied by the accused while making the disclosure statement in the custody of police in presence of PW5-Raja Bai and PW-8 Kanchi. We do not see much contradictions in the statement of PW5-Raja Bai but the statement of other attesting witness PW8-Kanchi leads us nowhere. It is interesting to note that the dead body was recovered by the police on 21.04.2010 from a dry Cabin of Digiana Pulli and the lower clothes of the deceased have also been found near the said Cabin lying in bushes and this happened on 08.08.2010 i.e. after almost three and 30 CRA No.9900002/2014 a half months. The Investigating officer says that these clothes were recovered from the bushes near the Cabin where the occurrence took place and were buried in earth after putting them in a plastic bag and this the accused did a day after the occurrence. It seems that though these clothes were missing from the body of the deceased, no effort was made by the police to search them from near the dead body. We also fail to understand as to why the accused was particular in concealing the clothes which were not even blood stained. That apart, as has come in the evidence, the dead body was also found by the rag picker who had gone down the Digiana Pulli for picking up rags and that being so it cannot be said that the clothes of the deceased were recovered from the place which was only known to the accused and was not accessible to anybody else. PW-5 and PW 8 do not say in their depositions that these clothes were put in a plastic bag and were buried under earth in bushes. Statement of PW Raja Bai, however, is that these were brought out by the accused and handed over to the police. We do not even find it convincing that clothes recovered were actually the clothes worn by the deceased when she went missing from her Jhuggi. Such types of clothes are readily available in the market and the possibility of planting these clothes for the purpose of recovery at the instance of accused cannot be altogether ruled out.

37. We are aware that if it is established conclusively that the recovery of fact is in pursuance of the information supplied by the accused, such information as distinctively leads to discovery of fact is relevant and admissible in evidence.

31 CRA No.9900002/2014

38. A three Judge Bench of Hon‟ble the Supreme Court in the case of Sarwan Singh and ors v. State of Punjab, 1976 (4) SCC 369 was confronted with such like situation and what was held by Hon‟ble the Supreme Court in para 14 of the judgment reads thus:-

"14. Reliance was, however, placed by the prosecution upon recovery of Exts. P. L., P. M., P N., P. O., P. Q. & P. R. We are. however, in the present case concerned only with the recovery of weapons from the three appellants which are reflected in Exts. P. L., P. Order and P. R. In the disclosure statement leading to' the recovery of the weapons which are the subject-matter of these documents, there is no statement by the accused that they had committed an offence of murder with the weapons recovered at their instance. It is also clear that none of the weapons recovered from the three appellants bore any bloodstains. In these circumstances, therefore, it seems to us that the mere recovery of the weapons is not a very material circumstance against the accused particularly when every villager is supposed to possess one. Exhibit P. L. is the recovery memo of a gandasa, which is said to have been recovered from the person of Amar Singh on July 25, 1970 while he was coming on the turning of link road of Gurusar. It is obvious that this recovery is absolutely meaningless. The gandasa did not have any bloodstains and all that this recovery shows is that the appellant Amar Singh did undoubtedly possess the gandasa. Exhibit P. 6. is the recovery memo of a takwa which was recovered and produced at the instance of the appellant Sarwan Singh. Here also there was no disclosure statement and all that is proved is that Sarwan Singh was possessed of the takwa in question. Lastly Ext. P. R. is the recovery memo of a ghop recovered at the instance of Mukhtiar Singh from a ditch near the canal minor Kangar.

32 CRA No.9900002/2014

This also shows that Mukhtiar Singh was possessed of the ghop. Thus while these recoveries cannot be treated to be an incriminating evidence against the accused, at least this much is certain that the definite case of the prosecution was that these weapons belonged to the appellants and appear to have been used in the assault on the deceased. The prosecution cannot be allowed to resile from this position. This matter will be explained further when we discuss the medical evidence.

39. The scope and ambit of Section 27 of the Evidence Act is elaborately explained by the Privy Council in its judgment rendered in the case of Pulukuri Kottaya and Others vs. Emperor, AIR 1947 PC, 67, which has become locus classicus on the point. The relevant extract of what was held by the Privy Council in the context of Section 27 of the Evidence Act is reproduced hereunder:-

"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A.', these words are 33 CRA No.9900002/2014 inadmissible since they do not related to the discovery of the knife in the house of the informant."

40. In State of Maharastra v. Damu, (2000) 6 SCC 269, Hon‟ble the Supreme Court in para 36 held thus:-

"The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the Section. The decision of Privy Council in Pullukurri Kottayya vs. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."

41. In the instant case, as we have seen, the prosecution cited two witnesses, PW-5 Raja Bai and PW-8 Kanchi along with one independent witness, Ashwani Mangotra. Ashwani Mangotra could not depose in the Court as by that time he had died. The statement of PW-Kanchi leads us nowhere. She claims that even the dead body was recovered pursuant to the 34 CRA No.9900002/2014 disclosure statement made by the accused. This huge exaggeration makes rest of the statement of the witness highly doubtful. There is also no definite evidence brought on record by the prosecution that on the date the deceased went missing she was wearing the clothes which were recovered by the police pursuant to the disclosure statement made by the accused. PW-5 Raja Bai or for that matter PW-14 Bhawani Bai or PW Babu Ram Anuragi have not stated anything about the clothes deceased was wearing when she went missing from her home. That apart, the time gap between the occurrence and the recovery of the clothes at the instance of the accused makes the recovery highly doubtful.

42. For the reasons aforesaid and having regard to the evidence on record, we are of the considered view that the recovery of the incriminating fact of recovery of lower clothes and chapels of the deceased, at the instance of the accused, is not conclusively proved. The factum of recovery of the lower clothes of the deceased pursuant to the information supplied by the accused while in custody of police is not firmly and conclusively proved. The findings recorded by the trial Court to the contrary are not supported by any ncogent, credible and unimpeachable evidence.

43. Once we find that the two major incriminating circumstances i.e., the deceased last seen with the accused and the recovery of under clothes viz white Shalwar, black underwear and a pair of chapels ( Plastic) pursuant to the disclosure statement made by the accused, are not firmly and conclusively proved, we are of the considered opinion that other circumstances, like the motive, which too is not proved as also the conduct of the accused, pale into insignificance. The motive attributed to the 35 CRA No.9900002/2014 accused is that he had lustful eye on the deceased and on the fateful day also he was found staring at the naked body of the deceased while she was taking bath at the tap.

44. As is held by us in the earlier part of the judgment, the absence of the proper site plan of the area prepared by the Investigating officer and the account of the witnesses leads us to believe that the tap was not visible from the Jhuggi which was situated within four walls. It has also come on record that exit of the Jhuggi was on opposite side of the tap. That apart, PW Bhawani Bai has not said anything about the accused staring at the naked body of the deceased while she was taking bath at the tap but says that deceased was asked by the accused to massage his body for which the accused also promised to give her Toffees. There are thus two different versions of the two star witnesses of the prosecution which even makes the motive of the crime projected by the prosecution doubtful. The conduct of the accused absconding right from the day the deceased went missing is also not supported by any convincing and reliable evidence. The Investigating officer nowhere stated that he ever searched for the accused or interrogated him on the basis of suspicion. The FIR was registered on 29.07.2010, the accused was arrested on 05.08.2010 from the Jhuggi of his sister situated at Bari Brahmana area. The accused in his statement under Section 342 Cr.P.C has categorically stated that he was all along available and had not absconded and was, in fact, arrested in the month of April, 2010 itself. It is true that the police record shows that he was for the first time formally arrested on 05.08.2010.

36 CRA No.9900002/2014

45. Be that as it may, the legal position remains that it is for the prosecution which brings out accusations against the accused, to prove such accusations by leading evidence beyond reasonable doubt. It is true that failure of the accused to explain the incriminating circumstances appearing against him in the prosecution evidence is reflective of his conduct and could be taken as additional link in the chain of circumstances leading to the hypothesis inconsistent with the innocence of the accused. In this case we find the important incriminating circumstances like the last seen and disclosure statement having not been established firmly and conclusively. The evidence led to prove the circumstances is too weak and feeble to come to a definite conclusion about the guilt of the accused. Delay of about more than two months in completing the inquest proceedings and then recording of the statements of some of the material witnesses in the month of August, 2010 i.e. about four months of the occurrence, are the factors which have shaken the credibility of the prosecution case.

46. For the foregoing reasons we regret our inability to uphold the judgment of the trial Court. It is indeed a case of gruesome killing of a minor girl aged 7/8 years and, that too, probably after subjecting her to brutal rape ( the injuries noticed by the Doctor points to that). But one cannot send a person accused of commission of crime to gallows or in the imprisonment for life in absence of concrete and reliable evidence, more so when there are no eye witnesses to the crime and the entire case of the prosecution is rested on circumstantial evidence not proved in the manner prescribed by law.

37 CRA No.9900002/2014

47. In view of the aforesaid, we allow this appeal and set aside the judgment passed by the trial Court. The appellant is acquitted of all the charges. He shall be set at liberty forthwith, if not required in any other case.

48. For the reasons, Appeal of the appellant has been allowed, reference for confirmation of the sentence is declined and CONF No. 05/2014 is rejected.

49. The record of the trial Court be returned.

                              (M. A. Chowdhary)             (Sanjeev Kumar)
                                       Judge                         Judge
JAMMU.
March 31, 2022
Anil Raina, Addl Reg/Secy

                            Whether the order is speaking : Yes
                            Whether the order is reportable: Yes

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court