Allahabad High Court
State Of U.P. vs Ubhan Yadav @ Abhay Kumar Yadav on 2 June, 2021
Bench: Ramesh Sinha, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Per: Rajeev Singh,J.)
(1) The criminal appeal filed by the accused-appellant namely Ubhan Yadav @ Abhai Kumar Yadav under Section 374 (2) Cr.P.C. and the Death Reference under Section 366 Cr.P.C., are decided by way of common judgment.
(2) Heard Shri Santosh Kumar Kanaujiya and Shri Arvind Kumar Verma, learned counsels for the accused-appellant (Ubhan Yadav @ Abhai Kumar Yadav) as well as Shri Vimal Kumar Srivastava, learned Government Advocate assisted by Shri Chandra Shekhar Pandey, learned counsel for the State and perused the lower court record.
(3) As in the case in hand, the accused-appellant namely Ubhan Yadav @ Abhay Kumar Yadav was tried by the trial court and convicted under Sections 302 376 & 201 I.P.C. whereby he was sentenced to be hanged, by the neck, till death for offence under Section 302 I.P.C., sentenced for life imprisonment and with a fine of Rs.6,000/- for the offence under Section 376(2)(F), in case of non payment of fine, additional one year of Simple Imprisonment, and sentenced for five years of Rigorous Imprisonment with a fine of Rs.4,000/- for the offence under Section 201 I.P.C., in case of non payment of fine, additional four months of S.I.
(4) After convicting the accused-appellant for sentence of death, reference was made by the trial court, which was registered as Capital Sentence No.06 of 2014, and the same is lying before us for confirmation of such sentence and death. The accused-appellant has challenged the judgment and order dated 29.08.2014 passed by Shri Satya Prakash Naik, Additional Sessions Judge, Court No.1, Barabanki in S.T. No.266 of 2013 arising out of Case Crime No.101 of 2013, under Sections 302, 201 & 376 I.P.C., P.S. Dewa, District Barabanki, in Criminal Appeal No.1202 of 2014 (Ubhan Yadav @ Abhay Kumar Yadav Vs. State of U.P.).
(5) As per the prosecution case, on 30.03.2013 at 21:10 hours, Prem Nath Singh came to the Police Station Dewa, District Barabanki along with Tung Nath Singh S/o Late Raj Bahadur Singh, Bal Govind Yadav & Bechu Singh, and given a written complaint with the allegation that his younger daughter, aged about 12 years, went out from her home on 30.03.2013 at 02:00 p.m. but she did not come back, then due to worry the family members started searching her in the neighbour houses, but no one has responded, thereafter, the family members and other villagers also started searching her in the adjoining forest & field situated in the north side of the village, then her body was found under black berry (Jamun) tree of the grove of Pratap Singh and some visible signs of injury was found on the neck on the body and some nail scratches were also seen on her hand, her pair of leggings was not found on her body and it seems that with intention to outrage her modesty, she was killed.
(6) On the basis of aforesaid complaint of Prem Nath Singh (informant), F.I.R. as Case Crime No.101 of 2013, under Sections 302 I.P.C., P.S. Dewa, District Barabanki was lodged on 30.03.2013 at 21:10 hours in which the time of incident is shown as 14:00 hours (02:00 p.m.) dated 30.03.2013. Chick F.I.R. was prepared and the incident was also entered into General Diary as G.D. No.41 at 21:10 hours for registering the F.I.R. The S.H.O. concerned along with his team reached on the spot and started the inquest of body of the deceased on 30.03.2013 at 22:15 hours and concluded the same at 23:55 hours in the light of seven Petromax and head light of one tractor, and the body was sent for postmortem along with requisite papers. The postmortem of the body of deceased was conducted on 31.03.2013 at 02:00 p.m., in which seven ante-mortem injuries were found on the body of the deceased, and the cause of death opined by the team of doctors is Asphyxia, as a result of ante-mortem throttling.
(7) The Investigating Officer prepared Parcha No.1 on 30.03.2013 by copying the Chick F.I.R. in the Case Diary and recorded the statement of Head Constable Ramraj (Chick F.I.R. writer), and also mentioned that the inquest of the body of the deceased was conducted in the proper light of seven petromax and head light of one tractor, as the place of incident was protected, therefore, the proceeding was deferred for next date. On 31.03.2013, Parcha No.2 of Case Diary was prepared by the Investigating Oficer by copying the contents of the inquest and also recorded the statement of the witnesses of the inquest, inspected the place of incident and prepared the site plan on the pointing out of the informant as well as witnesses of the inquest, and also prepared a recovery memo of the sleepers, under garments and leggings of the deceased; he also recorded the statement of witnesses of recovery memo and the statements under Section 161 Cr.P.C. of Smt. Siyavati (mother of the deceased), Uday Pratap Singh (brother of the deceased) and Kumari Anjali Singh (sister of the deceased), and the statement of witnesses of last seen namely Mohd. Khaleel, Shri Pawan Kumar Singh and Shri Vinay Prakash Singh were also recorded. In the statements of Mohd. Khaleel, Pawan Kumar Singh and Vinay Prakash Singh, the evidence of last seen of accused, near the place of incident, was found. On 01.04.2013, Parcha No.3 was prepared by the Investigating Officer, in which the arrest of accused-appellant is shown and his confessional statement under Section 161 Cr.P.C. was also recorded by the Investigating Officer; on pointing out of the accused, one notebook was recovered from the place of the incident and the recovery memo of the notebook was prepared, and the Investigating Officer also prepared the site plan in relation to the recovery of the notebook. On 02.04.2013, accused-appellant was medically examined and his pubic hair, nails and Penile Wash were taken into possession, and this fact was mentioned in the Parcha No.4 of the Case Diary dated 02.04.2013. Parcha No.5 was prepared by the Investigating Officer on 03.04.2013. On 04.04.2013, Parcha No.6 was prepared by the Investigating Officer and he recorded the statement of Shiv Bahal Yadav, Shri Balram Singh and Shri Guddu under Section 161 Cr.P.C. On 07.04.2013, Parcha No.8 was prepared by the Investigating Officer, by which the charge sheet was prepared and forwarded to the court concerned.
(8) Learned Chief Judicial Magistrate, Barabanki committed the case, vide order dated 17.05.2013, to the court of session. Thereafter, the case was registered as S.T. No.266 of 2013 (State vs. Ubhan Yadav @ Abhay Kumar Yadav) arising out of Case Crime No.101 of 2013, under Sections 302, 201, 376A I.P.C., P.S. Dewa Kotwali, District Barabanki.
(9) As it is evident from the order sheet that during the course of trial, the accused-appellant was not in a position to engage the counsel to defend him, then the order was passed on 16.07.2013, by the trial court, for appointing the Amicus Curiae/counsel for the accused-appellant and the order sheet reveals that on 30.07.2013, Mr. Yugal Kishore Srivastava, Advocate was informed that he has been appointed as Amicus Curiae to pursue the case of accused-appellant. On the same day, charges were framed by the court below.
(10) The prosecution relied on the oral testimony of PW-1 Prem Nath Singh (informant), PW-2 Vinay Prakash (witness of last seen), PW-3 Mohd. Khaleel (witness of last seen), PW-4 Dr. Brijesh Kumar Srivastava (conducted medical of the accused-appellant and postmortem of the body of the deceased), PW-5 Dr. Shipra Singh (member of the postmortem team), PW-6 Constable Ramraj, PW-7 Smt. Siyawati (mother of the deceased) and PW-8 M.S. Khan (Investigating Officer).
It is also evident from the record that the pubic hair, nails and Penile Wash (fluid spilled by washing the genital part) of the accused-appellant and pubic hair, nails & under garments of the deceased were sent to Forensic Science Laboratory U.P., Mahanagar, Lucknow for chemical examination and report of the aforesaid articles. After examination, report was submitted by Deputy Director FSL, Lucknow on 03.02.2014, which is available on record, but the same was not proved by the prosecution.
(11) The prosecution also relied on sixteen documentary evidences i.e. written complaint of the informant (Ext. Ka-1), inquest of the body of the deceased (Ext. Ka-2), postmortem of the body of the deceased (Ext. Ka-3), medico-legal report of the accused-appellant (Ext. Ka-4), F.I.R. of the incident (Ext. Ka-5), General Diary in relation to the registration of F.I.R. of the incident (Ext. Ka-6), Report of Chief Medical Superintendent, District Hospital Barabanki for postmortem of the body of the deceased and for providing the postmortem report of the deceased, her clothes etc. (Ext. Ka-7), police form No.13 (Ext. Ka-8), challan last photo (Ext. Ka-9), sample seal (Ext. Ka-10), letter to Reserve Inspector of Police Line Barabanki (Ext. Ka-11), Site plan prepared on 31.03.2013 (Ext. Ka-12), recovery memo in relation to under garments, leggings and sleepers of the deceased dated 31.03.2013 (Ext. Ka-13), recovery memo in relation to the notebook of the accused-appellant dated 01.04.2013 (Ext. Ka-14), site plan related to recovery of notebook of the accused-appellant (Ext. Ka-15) and charge sheet dated 07.04.2013 (Ext. Ka-16).
(12) The statement of accused under Section 313 Cr.P.C. was recorded by the trial court and after hearing the arguments of the parties, the judgment and order dated 29.08.2014, which is under challenge, was passed by the trial court.
(13) Learned counsel for the accused-appellant has submitted that he has been falsely implicated in the present case. He further submitted that learned trial court failed to appreciate the evidence in correct perspective. He further submitted that as per the prosecution case, the deceased went out from her home on 30.03.2013 at 02:00 p.m., which was categorically stated by PW-7 Smt. Siyavati (mother of the deceased) and she also stated that when the deceased did not come back till 04:00 - 05:00 p.m., then they started searching for her and she also informed to her husband who was working in the spinning mill and came to home within half an hour and thereafter, he along with others also started searching, then the body of deceased was found in the grove of Pratap Singh under the black berry tree.
(14) Learned counsel for the accused-appellant has further submitted that Vinay Prakash (PW-2) was produced before the trial court, who categorically stated before the court below that the incident was of 30.03.2013 and on the said date when he was coming back after watching his agricultural field in between 02:00 - 02:30 p.m., he saw that co-villager Ubhan Yadav @ Abhay Kumar Yadav (accused-appellant) was coming out from the grove of Pratap Singh and going towards the village from the west side of Khaliyan, and when the accused saw the witness (Vinay Prakash), he moved fast but the witness did not notice his activity and went to his home; and when on the same day at 08:00 p.m., body of the deceased was found in the grove of Pratap Singh, then he believed that the incident was caused by the accused-appellant; he also stated in examination-in-chief that the aforesaid fact was brought into the notice of family members of the deceased as well as Investigating Officer and also stated that the accused-appellant does not have good character. He further submitted that the witness Vinay Prakash (PW-2) was also cross-examined in which he stated that he was also searching for the girl (deceased) and he also met with the informant where the dead body of the deceased was found, but he did not speak to him about the activities of accused-appellant. He further deposed that no any article was found near the body of the deceased, and the prosecution case is improbable on the ground that when the deceased girl left her house at 02:00 p.m. and the accused appellant was leaving the grove in between 02:00 - 02:30 p.m., then when and how the said incident was taken place.
(15) Learned counsel for the accused-appellant has further submitted that Mohd. Khaleel (PW-3) was also examined before the trial court and in his examination-in-chief he stated that on the date of incident in between 01:30 - 02:00 p.m., the accused-appellant passed nearby the agricultural field in which he was working and went to the grove of Pratap Singh; and he also deposed that the distance of the grove is 150 mt. from his field in which he had worked since 09:00 a.m. to 05:30 p.m. and when the body of the girl was found then he also went to the place of incident, but he did not speak to her family members, and on the next date, he told to the concerned Sub Inspector.
(16) Learned counsel for the accused-appellant has further submitted that the statements of Smt. Siyavati (PW-7), Vinay Prakash (PW-2) and Mohd. Khaleel (PW-3) are contradictory as PW-7 Smt. Siyavati (mother of the deceased) has categorically stated that girl went out at 02:00 p.m. from her home, but Vinay Prakash (PW-2) stated that on the date of incident, accused-appellant was going towards village in between 02:00-02:30 p.m. from grove of Pratap Singh and Mohd. Khaleel (PW-3) stated that on the date of incident, he saw the accused-appellant passing nearby the agricultural filed at about 01:30 - 02:00 p.m., in which he was working since 09:00 a.m. to 05:30 p.m., and when the body of the girl was found, then he also went there, but he did not speak to the family members of the deceased, and on the next date he told the same to the Sub Inspector. In such circumstances, the prosecution story is highly doubtful.
(17) Learned counsel for the accused-appellant has further submitted that Dr. Brijesh Kumar Srivastava (PW-4) was examined before the trial court, who conducted the postmortem of the body of the deceased along with the Dr. Shipra Singh (PW-5). He further submitted that in the postmortem report, seven ante-mortem injuries were found on the body of the deceased and doctor has opined that the cause of death is Asphyxia due to ante-mortem throttling. He further submitted that the prosecution failed to send the finger print to FSL for examination and in the postmortem report, PW-5 Dr. Shipra Singh has opined that rape was committed with the deceased, her hymen is torned and admits two finger.
The ante-mortem injuries of the deceased are as under:-
1. Contusion over inner surface of upper and lower lip in an area of 2.5 cm x 1.0 cm.
2. Multiple abrasion 0.5 cm x 0.3 cm (18-12 in no.) present over out aspect of Neck in an area of 10 cm x 7 cm.
3. Abrasion over left forearm, outer aspect, 3 cm x 0.2 cm, just below to left elbow.
4. Abrasion 4 cm x 0.2 cm over outer aspect of left forearm, 3 cm below to injury No. 3.
5. Multiple abrasion (5-6 in no.) ranging from 2 cm x 0.2 cm to 5 cm x 0.2 cm, in area of 7 cm x 7 cm present over antero lateral aspect of left forearm, 3 cm above to left wrist.
6. Multiple abrasion (4-5 in no.) on posterior aspect of left hand ranging from 3 cm x 0.2 cm to 6 cm x 0.2 cm, in area of 6 cm x 6 cm.
7. Multiple abrasions on postero lateral on (Rt.) arm (18 to 20 in no.) present in area of 20 cm x 7 cm ranging from 2 cm x 0.2 cm to 5 cm x 0.5 cm.
(18) Learned counsel for the accused-appellant has further submitted that the accused was medically examined after his arrest and his genital part was also examined. He further submitted that in general examination of accused, no any obvious swelling or mark of external injury was found and in the examination of genital i.e. a) Prepuse (on retracton): smegma present with abrasion 1 cm x 0.5 cm on inner aspect of prepuce on ventral surface, just below the corona of Glans, color of abrasion is bluish black; b) Frenulum: torn, fibrosed; c) Glans: Abraded contusion involving whole periphery of glans i.e. just - anterior to corona, bluish black in colour; and Pubic hair as well as nail of all fingers and Penile Wash of accused-appellant were also taken into custody and sent to FSL for examination along with the pubic hair and other articles of the deceased.
The medico-legal examination of the accused-appellant is as under:-
A. General Exam :-
a. Average built body.
b. Height 145 cm
c. Weight 50 kg
d. No any obivious swelling or mark of external injury visible.
B. Local Exam of Genitalia:
a. Pepuce (on retraction) - Smegma present with abrasion 1 cm x 0.5 cm on inner aspect of prepuce on ventral surface, just below the corona of glans, colour of abrasion is bluish black.
b. Frenulum - Torn, fibrosed.
c. Glans - Abraded contusions involving whole periphery of Glans i.e. just anterior to corona, bluish black in colour.
C. Pubic Hair Shave/Nails cut/wrapped in plain paper and sealed in separate envelops and handed over to CP concerned.
D. Penile wash done with normal saline, sealed in a beaker and handed over to CP concerned for further Forensic/Pathological examn.
Opinion - KUO/caused by friction.
Duration - About 2½-3 days.
One sealed envelop containing Pubic Hair, Sealed envelop contains nails of all fingers, sealed beaker containing penile wash are handed over to CP concerned for further Forensic/Pathological examn, and (3) Sample of the seal handed over to CP concerned.
(19) Learned counsel for the accused-appellant has further submitted that the presence of the smegma reveals that accused appellant has not cleaned his genitals since last 2-3 days. He further submitted that in case, alleged abrasion on the genital of the accused-appellant are due to friction during the course of rape with the deceased having narrow vagina, colour of abrasion was to be red at the glans but in the present case, it is said that abrasion is bluish black in colour and if vagina was narrow then the deceased must have injury on her genital as in the Postmortem Report shows that two fingers admits in vagina. In such circumstances, the story of the prosecution is highly improbable.
(20) Learned counsel for the accused-appellant has further submitted that fibrosed found on frenulum reveals that the accused-appellant has not cleaned his genitals properly since last 2-3 days. Therefore, it was obligatory on the part of the prosecution to get the DNA test to bring out the truth. He further submitted that prior to year 2006, there was no provisions for DNA test, but by way of amendment by Act No.25 of 2005 an explanation clause was added in Section 53 of Cr.P.C., which provides that an examination of the person arrested as is reasonable/necessary in order to ascertain the facts which may support such evidence, examination is defined in the explanation clause includes the examination of blood, blood stain, semen, swab in case of sexual offence, sputum and swab hair samples and finger nails clipping by the use of thorough and scientific techniques including DNA profiling and such others tests which the medical practitioners thinks necessary in a particular case. He further submitted that in the present case, the Articles were sent to FSL and the report was also sent by Deputy Director FSL, Lucknow, vide letter No. 190-BIO-13 dated 03.02.2014 addressed to Chief Judicial Magistrate, Barabanki, in which no semen or sperm was found on the Pubic hair or slide prepared by the doctors. He further submitted that the aforesaid report was taken on record by the learned trial court on 14.03.2014 but the prosecution, deliberately, has not proved this report because this report denies the prosecution story, but it was the bounden duty of the trial court to look into the same.
(21) Learned counsel for the accused-appellant has further submitted that learned trial court also acted very negligently as the order sheet reveals that on 30.07.2013, Amicus Curiae was informed about his engagement as counsel for the accused and on the same date charges were framed, meaning thereby, no opportunity was given to the Amicus Curiae for accused appellant to prepare for his submissions at the stage of framing of charge. He further submitted that the legal aid provided to the accused-appellant was not competent enough, which is very much evident from the manner in which the cross-examination was conducted by him as well as from his assistance given to the accused-appellant for giving reply regarding his statement under Section 313 Cr.P.C., as Articles 22, 39A of the Constitution of India and Sections 303/304 r/w Rule 37 of General Rules (Criminal), 1977 framed by Allahabad High Court, which provides that the legal aid provided by the Amicus Curiae is not to be an eye wash, but it should be real and effective. He also relied on the decision of Hon'ble Supereme Court in the case of Anokhilal Vs. State of Madhya Pradesh reported in 2019 SCC OnLine SC 1637 and the case of Shadaan Ansari Vs. State of U.P. and others reported in 2020 SCC OnLine All 19.
(22) Learned counsel for the accused-appellant has further submitted that three tests ought to be satisfied where a decision rests solely on circumstantial evidence - firstly, all circumstances from which inference of guilt is drawn must be cogently and firmly established; secondly, the circumstances must unerringly inclined towards the guilt of the accused; and thirdly, the circumstances taken together must form a chain so complete that it becomes incapable of explanation on any reasonable hypothesis except for the guilt of the accused, and relied on the decision of Hon'ble Supreme Court in the cases of Gargi vs. State of Haryana (2019) 9 SCC 738, Chandmal vs. State of Rajasthan (1976) 1 SCC 621, State of U.P. vs. Hari Mohan (2000) 18 SCC 598, Raj Kumar Singh vs. State of Rajasthan (2013) 5 SCC 722, Ganpat Singh Vs. State of M.P. (2017) 16 SCC 353, Baiju Kumar Soni vs. State of Jharkhand (2019) 7 SCC 773 and Rajendra vs. State (NCT of Delhi) (2019) 10 SCC 623.
(23) Learned counsel for the accused-appellant has further submitted that all circumstances concerned must establish the circumstances of a conclusive nature and tendency and relied on the decision of Hon'ble Supreme Court in the cases of Hanumant Govind Nargundkar vs. State of M.P. AIR 1952 SC 343, Shivaji Shahabrao Bobade vs. State of Maharastra (1973) 2 SCC 793, CBI vs. Mahender Singh Dahiya (2011) 3 SCC 109, Ramesh Harijan vs. State of U.P. (2012) 5 SCC 777, Sujit Biswas vs. State of Assam (2013) 12 SCC 406, Anjan Kumar Sarma vs. State of Assam (2017) 14 SCC 359.
(24) Learned counsel for the accused-appellant has further submitted that in criminal justice system, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted and relied on the decision of Hon'ble Supreme Court in the case of Kali Ram vs. State of Himachal Pradesh (1973) 2 SCC 808.
(25) Learned counsel for the accused-appellant has further submitted that while appreciating circumstantial evidence, the trial court must adopt a very cautious approach and great caution must be taken to evaluate circumstantial evidence, and he also relied on the decision of Hon'ble Supreme Court in the cases of Hanumant Govid Nargundkar vs. State of M.P. AIR 1952 SC 343, Gurpreet Singh vs. State of Haryana (2002) 8 SCC 18, Ram Singh vs. Sonia (2007) 3 SCC 1, Musheer Khan vs. State of M.P. (2010) 2 SCC 748.
(26) Learned counsel for the accused-appellant has further submitted that it is trite law that in criminal cases, the burden of proof on the prosecution is one of proof beyond reasonable doubt as opposed to a preponderance of possibilities, but in the present case, the prosecution failed to establish its case. As per the prosecution case, the deceased went out from her house at 02:00 p.m., and as per the statement of Vinay Prakash (PW-2) (question No.2 framed under Section 313 Cr.P.C. by the trial court), he has seen that in between 02:00 - 02:30 p.m. accused was coming out from the grove of Pratap Singh and going towards the village and as per the statement of Mohd. Khaleel (PW-3) that he was working in the field since 09:00 a.m. to 05:30 p.m. and the distance of the grove is 150 m from the filed he was working, but he did not notice any incident. In such circumstances, the prosecution story is highly improbable. He also relied on the decisions of Hon'ble Supreme Court in the case of Shivaji Sahabrao Bobade vs. State of Maharastra (1973) 2 SCC 793, State of Karnataka vs. J. Jayalalitha (2017) 6 SCC 263, Ashok Debbarma Ram Vs. State of Tripura (2014) 4 SCC 747.
(27) Learned counsel for the accused-appellant has further submitted that the prosecution relied on confessional statement of the accused-appellant given to the police and on his pointing out, the notebook was recovered, but the same was not sent for expert opinion in relation to hand writing found in the notebook. He further submitted that the PW-8 M.S. Khan (Investigating Officer) has categorically mentioned in the inquest report and also deposed before the trial court that there was sufficient light of seven petromax and head light of one tractor in which the inquest of the body of the deceased was conducted, but in the inquest report no article is mentioned which was found near to the body of the deceased, and on the next day i.e. 31.03.2013, recovery of under garments, leggings and sleepers of the deceased was done from the same place and the same were taken into custody. On 01.04.2013, on pointing out of the accused-appellant, the notebook was recovered from the place where the leggings and under garments and sleepers of the deceased were recovered
(28) Learned counsel for the accused-appellant has further submitted that if the requirement of Section 27 of Indian Evidence Act are met with i.e. 1) fact is discovered; 2) discovery is in consequence of the confessional statement, then the part of the statement that relates to the fact discovered becomes admissible in the evidence, and 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 the effect, and he has also relied on the decision of Hon'ble Supreme Court in the cases of State of U.P. vs. Deoman Upadhyay AIR 1960 11 SCC 1125 and Bodhraj @ Bodha vs. State of Jammu & Kashmir (2002) 8 SCC 45.
(29) Learned counsel for the accused-appellant has further submitted that constitutional safeguard provided under Article 20(3) of Constitution of India clearly states that no accused of an offence shall be compelled to be a witness against himself. He further submitted that the provisions of Section 25, 26 & 27 of Indian Evidence Act, 1872 r/w Article 20(3) of Constitution of India make it clear that a confession made by any person to a police officer is inadmissible as an evidence, except for the singular cases where such statement results in a consequent discovery of fact, and also relied on the decision of Hon'ble Supreme Court in the cases of Aghnoo Nagesia vs. State of Bihar AIR 1966 SC 119, Vasanta Sampat Dupare vs. State of Maharastra (2015) 1 SCC 253, Ishwari Lal Yadav vs. State of Chattisgarh (2019) 10 SCC 437.
(30) Learned counsel for the accused-appellant has further submitted that in absence of direct evidence of an offence, presumption must be an inference of the fact drawn from another proved fact that is likely to flow as a common course for natural events, human conduct and public/private business vis-a-vis facts, and also relied on the decision of Hon'ble Supreme Court in the cases of Limbaji vs. State of Maharastra (2001) 10 SCC 340 and State of Andhra Pradesh vs. Vasudeva Rao (2004) 9 SCC 319.
(31) Learned counsel for the accused-appellant has further submitted that decision of trial court suffers from an error in appreciation of principles of evidentiary law, and relied on the decision of Ram Chander vs. State of Haryana (1981) 3 SCC 191.
(32) Learned counsel for the accused-appellant has further submitted that judicial approach must be cautious, circumspect and careful and the court must exercise prudence and each court from the Session court to the Supreme Court must pursue and analyse facts of the case at hand and reach an independent conclusion.
(33) Learned counsel for the accused-appellant has further submitted that learned trial court observed that the accused-appellant was aged about 35 years without any evidence, but the medico legal report reveals that he was aged about 27 years at the time of incident.
(34) Learned Government Advocate has submitted that learned trial court has rightly appreciated the evidence deposed before the trial court. He also submitted that in the present case, modesty of twelve year's old girl was outraged by the appellant and thereafter, she was strangulated to death. He also submitted that involvement of the accused-appellant was found during the course of investigation and he was arrested on 01.04.2013. Thereafter, the accused was medically examined and some injuries were found on his genital parts which was caused due to physical relation with the deceased (minor). He also submitted that on pointing out of the accused, his notebook was recovered from the place of incident which was duly proved by M.S. Khan (PW-8). He also submitted that Vinay Prakash (PW-2) and Mohd. Khaleel (PW-3) deposed before the trial court that they had seen the accused appellant near the grove of Pratap Singh. He also submitted that Dr. Brijesh Kumar Srivastava (PW-4) and Dr. Shipra Singh (PW-5) deposed before the court below that the deceased was killed after rape, and her pubic hair and vaginal smear were sent to FSL along with the nails and pubic hair of the accused-appellant for forensic and pathological examination. He also submitted that postmortem of the body of the deceased was conducted and seven anti-mortem injuries is found on the body of the deceased.
(35) Learned Government Advocate has also submitted that the accused-appellant was medically examined and smegma was present on his genital part and the abrasion was also found and the colour of the abrasion is bluish black due to force penetration. He also submitted that the deceased was mentally retarded and the offence comes into the category of rarest of the rare cases as the twelve year's old mentally retarded girl was raped and thereafter, murdered. He also relied on the decision of Hon'ble Supreme Court in the case of Laxman Naik Vs. State of Orissa reported in (1994) 3 SCC 381, Dhananjoy Chatterjee @ Dhana vs. State of West Bengal reported in (1994) 2 SCC 220 and Shivaji @ Dadya Shankar Alhat Vs. State of Maharastra reported in (2008) 15 SCC 269.
(36) Considering the arguments of the learned counsel for the appellants as well as learned Government Advocate and going through the records, it is evident that the proseuction examined four sets of eight witnesses, which are given as under:-
1. Relation of the deceased and witnesses of facts: Prem Nath Singh (father of the deceased) PW-1 and Smt. Siyavati (mother of the deceased) PW-7.
2. Last seen witnesses: Vinay Prakash (PW-2) and Mohd. Khaleel (PW-3).
3. Experts who conducted medical and postmortem of the deceased: Dr. Brijesh Kumar Srivastava (PW-4) and Dr. Shipra Singh (PW-5).
4. Police officers who conducted the investigation and prepared Chick F.I.R.: Constable Ram Raj (PW-6) and M.S. Khan (Investigating Officer) PW-8.
(37) It is evident that as per the prosecution case, F.I.R. was lodged on the written complaint of PW-1 Prem Nath Singh (father of the deceased), in which he categorically mentioned that his younger daughter went out from her home at 02:00 p.m., but she did not come back, as a result, search was started and later on, her dead body was found under the black berry tree in the grove of Pratap Singh situated in the southern side of the village; thereafter, the F.I.R. was lodged on 30.03.2013 and the written complaint was proved by him as Ext. Ka-1. Later on, inquest of the body of the deceased was conducted by M.S. Khan (PW-8) and the inquest report was prepared as Ext. Ka-2, and in the inquest report no article has been mentioned which was found near the body of the deceased, as in the inquest report it is mentioned that the inquest was conducted in the light of seven petromax and head light of one tractor in the night, but neither the leggings, under garments and sleepers of the deceased nor notebook of the accused was recovered. On the next date, site plan was prepared by the Investigating Officer and he found leggings, under garments and sleepers of the deceased from the place of incident and thereafter, the statement of Vinay Prakash (PW-2) and Mohd. Khaleel (PW-3) was recorded by the Investigating Officer under Section 161 Cr.P.C., in which they stated that the accused-appellant was seen by them near the grove of Pratap Singh. The accused-appellant was taken into custody on 01.04.2013 and he confessed the crime as deposed in the statement deposed before the trial court that on his call, the deceased came in the grove where he raped her and when she told him that she will inform about the incident to her family members, then he strangulated her throat and dragged her body under the black berry tree with the intention to hide, and he also stated that during the course of incident, his notebook fell down at the place of incident and suggested PW-8 that the same could be recovered from the place of incident, then the recovery of notebook was made; but the notebook was not sent to the forensic laboratory for verifying the handwriting found in the notebook.
(38) It is also evident that PW-7 Smt. Siyavati (mother of the deceased) has categorically stated in her statement that the deceased went out at 02:00 p.m. from her house, and Vinay Prakash (PW-2) has categorically stated in his statement that on 30.03.2013, he was coming back after watching his agricultural field in between 02:00-02:30 p.m. then he saw that accused-appellant was coming out from the grove of Pratap Singh and going towards the village and after seeing him, the accused started moving fast, but he did not notice his activities and went to his home; and he also stated that the body of the deceased was found in the grove of Pratap Singh at 08:00 p.m., then he believed that there is a possibility for committing the crime by the accused-appellant and this fact was also told to the family members of the deceased as well as Sub Inspector. The relevant part of the statement of PW-2 is being reproduced as under:-
Þfnukad 30 ekpZ 2013 dh ?kVuk gSA eSa vius [ksr ns[kdj djhc fnu esa nks s ns[kk rks vkSj rsth ls Hkkxus yxkA ysfdu ml le; eSaus mlds bl fdz;k dyki ij dksbZ /;ku ugh fn;k vkSj vius ?kj pyk x;kA xkao vkus ij irk pyk fd iszeukFk flag dh yM+dh dq0 Js;k mQZ T;ksfr flag tks dqN gYds fnekx dh FkhA ?kj ls [ksyus ds fy, fudyh Fkh vkSj mldk irk ugh py jgk FkkA ifjokjh tu ds ryk'k djus ij mlh fnu izrki flag dh ckx esa Js;k dh yk'k jkr esa djhc 8 cts feyh FkhA rc eq>s bl ckr dk fo'okl gqvk fd gks ldrk gS fd ;g ?kVuk gkftj vnkyr vfHk;qDr mHku ;kno us fd;k gSA rks eSaus bl ckr dk [kqyklk Js;k ds ?kjokyksa o vU; yksxks ls fd;k FkkA vkSj ;g ckr eSaus njksxk th ls Hkh crk;h FkhA
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eSa muds ifjokj dk ugh gw¡ yk'k ?kj x;s rc mHku ds ckjs esa crk;k FkkA ml le; lHkh jks fpYYkk jgs Fks blfy, crkuk mfpr ugh le>kA yk'k ds vkl ikl iqfyl okyks dks esjs lkeus dksbZ oLrq cjken ugh gqvk FkkA eSa ns[kdj pyk vk;k FkkA ?kVuk ds lqcg njksxk th vk;s FksA njksxk th us esjk c;ku fy;k FkkA njksxk th ds vykok mHku dks ns[kus okyh ckr eSaus iszeukFk dks crk;h FkhA ß (39) It is also evident that Mohd. Khaleel (PW-3) also stated before the trial court that on the date of incident, he was working in the agricultural field of Pawan Kumar along with the children since 09:00 a.m. to 05:30 p.m. and in between 01:30 - 02:00 p.m., accused-appellant passed nearby the field in which he was working and went in the grove of Pratap Singh; and he also stated that the grove of Pratap Singh is situated 150 mt away from the field in which he was working and when the body of the deceased was found, then he also went to the place of incident but he did not speak to the informant about the aforesaid incident. On the next date he stated to the Investigating Officer that Ubhan Yadav was going towards the grove of Pratap Singh. The relevant para of the statement of PW-3 is reproduced as under:-
**vkt ls yxHkx lkr ekg igys dh ckr gSA eSa vius cPpksa ds lkFk iou dqekj ds [ksr esa etnwjh ij fiijesUV yxk jgk FkkA ml fnu le; yxHkx Ms<+ nks cts fnu esa ml [ksr ls gksdj esjs xkao dk mHku ;kno mQZ vHk; dqekj ;kno fudyk FkkA vkSj izrki flag dh ckx esa x;k FkkA tc eSa [ksr esa dke dj jgk Fkk rks ml le; xkao ds iou dqekj flag Hkh ekStwn FksA tc eSa [ksr ls djhc 'kke ikap cts ?kj vk;k rks ekywe gvk fd esjs xko ds izseukFk flag dh yM+dh Js;k flag mQZ T;ksfr flag xkao esa gh dgha [kks x;h gSA iszeukFk flag o muds ifjokj ds yksx Js;k flag dh ryk'k dj jgs Fks rks jkr djhc 8 cts dq0 Js;k flag dh yk'k izrki flag dh ckx esa tkequ ds isM+ ds uhps feyh FkhA jkr esa iqfyl okys ?kVuk LFky ij vk;s FksA nwljs fnu tc esjh iqfyl okyks ls eqykdkr gq;h rks eSaus iqfyl okyks dks crk;k Fkk fd dy eSus mHku ;kno vfHk;qDr gkftj vnkyr dks izrki flag dh ckx esa nksigj ds le; tkrs ns[kk FkkA eq>s iwjk fo'okl gS fd mHku ;kno us gh dq0 Js;k flag dks csbTTkr djds mldh gR;k dh gksxhA
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ftl le; eSa fiijesUV yxk jgk Fkk ml le; esjs lkFk NksVs cPps FksA tgka eSa fiijesUV yxk jgk Fkk ogka ls izrki flag dh ckx djhc 150 ehVj gksxhA eSaus lqcg 9 cts ls 'kke lk<+s ikap cts rd fiijesUV yxk;h FkhA
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yM+dh dh yk'k lok vkB cts jkr esa feyh FkhA tc yM+dh dh yk'k feyh rks lc yksx ns[kus x;s Fks vkSj eSa Hkh x;k FkkA eSaus oknh ds ?kjokyks dks ugh crk;k Fkk fd yk'k feyh gSA eSaus nwljs fnu njksxk th dks crk;k Fkk fd eSaus mHku ;kno dks tkrs ns[kk FkkA ** (40) As in the present case, PW-1 Prem Nath Singh and PW-7 Smt Siyawati (parents of the deceased) have categorically deposed that at 02:00 p.m., deceased went out to play; and Vinay Prakash (PW-2) deposed that on the date of incident at 02:00 - 02:30 p.m. when he was coming back after watching his agricultural field, he saw that accused-appellant was coming out from the grove of Pratap Singh and going towards village; and Mohd. Khaleel (PW-3) deposed that he was working in the agricultural filed of Pawan Kumar along with his children and planting the peppermint then he saw that in between 01:30 - 02:00 p.m. accused-appellant was going towards the grove of Pratap Singh, and he also stated that he was working in the filed since 09:00 a.m. to 05:30 p.m., but he has not stated that he heard any noise or crying of the deceased, and he also stated that the grove of Pratap Singh is situated 150 m away from the field in which he was working.
(41) In such circumstances, the prosecution story is contradictory from the statement of PW-2 Vinay Prakash, as when PW-2 admitted that accused-appellant was going towards the village in between 02:00 - 02:30 p.m. then there is no probability of involvement of the accused-appellant in the alleged incident; and the learned court below failed to deal the statement of PW-1, PW-2, PW-3 and PW-7 as the statements of PW-1, PW-2, PW-3 and PW-7 are discussed by the learned trial court at page 16-17, in which it is mentioned that the deceased went out from her house at 02:00 p.m. and at 02:00 - 02:30 p.m., the accused was seen by PW-2 when he was coming back to village from the grove of Pratap Singh, but this issue was not dealt and decided by the trial court. The relevant part of the findings of the court below in relation to Vinay Prakash (PW-2), Mohd. Khaleel (PW-3) and Smt. Siyavati (PW-7) are being reproduced as under:-
**ftlls bl lk{kh ds lk{; ij vfHk;qDr mHku ;kno mQZ vHk; dqekj ;kno dks lk{kh eks0 [kyhy ih0MCyw0&3 us vius lk{; esa dgk gS fd vkt ls yxHkx lkr ekg igys vius cPpksa ds lkFk iou dqekj ds [ksr esa etnwjh ij fiijesUV yxk jgk FkkA ml fnu le; yxHkx Ms<+ nks cts fnu esa ml [ksr ls gksdj esjs xkao dk mHku ;kno mQZ vHk; dqekj ;kno fudyk Fkk vkSj izrki flag dh ckx esa x;k FkkA ml le; iou flag Hkh ekStwn FkkA bl lk{kh us dgk gS fd tc 'kke dks ?kj vk;k rks oknh dh yM+dh ds xqe gksus dh [kcj feyh rFkk vkB&lk<+s vkB cts yM+dh dk 'ko izrki flag dh ckx ls cjken gqvkA ckn esa bl lk{kh ds le{k cpko i{k ls ,ehdl D;wjh }kjk ;g lq>ko j[kk x;k gS fd og oknh ds cpko esa >wBh xokgh ns jgk gSA xokg }kjk bl lq>ko dks xyr crk;k x;k gS fd mlus dqN ugha ns[kkA bl lq>ko dks Hkh xyr crk;k x;k gS fd xkao dh ikVhZ cUnh o jaft'k ds dkj.k vfHk;qDr dks >wBk Qalk fn;kA bl lk{kh dh ftjg esa Hkh ,slk dksbZ lk{; ugh gS ftlls lk{kh ds ?kVuk ds fnu iou dqekj ds [ksr esa fiijesUV yxkus rFkk Ms<+&nks cts fnu esa ml [ksr ls gksdj mHku ;kno mQZ vHk; dqekj ds fudy dj izrki flag dh ckx esa tkus ij lUnsg fd;k tk ldsA bl lk{kh dk lk{; Hkh izkd`frd] izklafxd o uSlfXkZd gSA lk{kh xzkeh.k ifjos'k dk jgus okyk gSA etnwjh is'kk O;fDr gSA lk{kh dk lk{; fo'oluh; gSA ** (42) It is well settled by the Hon'ble Supreme Court in the cases of Gargi vs. State of Haryana (supra), Chandmal vs. State of Rajasthan (supra), State of U.P. vs. Hari Mohan (supra), Raj Kumar Singh vs. State of Rajasthan (supra), Ganpat Singh Vs. State of M.P. (supra), Baiju Kumar Soni vs. State of Jharkhand (supra), Rajendra vs. State (NCT of Delhi) (supra), Hanumant Govid Nargundkar vs. State of M.P. (supra), Shivaji Sahabrao Bobade vs. State of Maharastra (supra), CBI vs. Mahender Singh Dahiya (supra), Ramesh Harijan vs. State of U.P. (supra), Sujit Biswas vs. State of Assam (supra), Anjan Kumar Sarma vs. State of Assam (supra) and Kali Ram vs. State of Himanchal Pradesh (supra) that to prove the commission of offence beyond reasonable doubt based on circumstantial evidence an unbroken chain of circumstances pointing to the guilt of the accused alone has to be established and when there is no direct or ocular evidence of crime, the guilt can be proved by the circumstantial evidence, but then, circumstances from which conclusion of guilt must be drawn must be fully proved and be conclusive in nature to fully connect the accused with the crimes. All links in the chain of circumstances must be prove beyond reasonable doubt and the proved circumstances must be consistent only with the hypothesis of guilt of the accused alone and none else, as also inconsistent with his innocence. The relevant para of the judgment of Hon'ble Supreme Court in the case Kali Ram Vs. State of Himachal Pradesh (supra) is being reproduced as under:-
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."
(43) As it is evident that the postmortem of the deceased was conducted by Dr. Brijesh Kumar Srivastava (PW-4) and Dr. Shipra Singh (PW-5) and seven ante-mortem injuries were found on the body of the deceased, and it is also evident from the postmortem report (Ext. Ka-3) that no ante-mortem injury was found on the genital parts of the deceased as the hymen was torned and Vagina admits two finger; and PW-4 deposed that no injury was found either on the thigh or in the genital part of the deceased; PW-4 also stated that accused was medically examined and smegma was found present with abrasion in blue and black color over the glans and he opined that there is a possibility that due to intercourse with a minor such injury may occur on the genital part of the accused due to friction and that the above injury was two and a half to three days' old, but on the other side PW-5 Dr. Shipra Singh opined that hymen was torn and two fingers admit in vagina, therefore, it shows that abrasion found on the Genital of the accused-appellant do not support the prosecution case, in case vagina of the deceased was narrow then injuries must be also there.
(44) Report of the Forensic Science laboratory was discussed by the trial court at page 20-21 of the judgment and mentioned that neither any semen nor any spermatozoa was found. As it is evident from the medico-legal report of the accused-appellant that smegma was present, therefore, in case, the offence was committed by the appellant then the spermatozoa was to be found in the FSL report, but the same was not found; and with regard to the matching of the semen, we find it from Taylor's Principles and Practice of Medical Jurisprudence, 2nd Edition (1965) as observed by the Hon'ble Supreme Court in the case of Krishan Kumar Malik vs. State of Haryana (2011) 7 SCC 130 that spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after 12 months and once after a period of 5 years. Non-motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months. Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the accused-appellant and the Hon'ble Supreme Court also observed in the aforesaid decision that after incorporation of Section 53-A in Cr.P.C. w.e.f. 23.06.2020, it becomes necessary for the prosecution to go in for DNA test in rape cases, facilitating the prosecution to prove its case against the accused, but in the present case, neither DNA test was examined by the prosecution nor the report of FSL support the prosecution case. The relevant part of the judgment delivered by the Hon'ble Supreme Court in the case of Krishan Kumar Malik vs. State of Haryana (supra) is reproduced as under:-
"43. With regard to the matching of the semen, we find it from Taylor's Principles and Practice of Medical Jurisprudence, 2nd Edn. (1965) as under:
"Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after 12 months and once after a period of 5 years. Non- motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months."
Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the accused-appellant."
"44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."
(45) The Investigating Officer placed before the trial court the confessional statement of the accused-appellant and also alleged recovery of notebook. In this regard, we find that Section 25, 26 & 27 of Indian Evidence Act, 1872, provides the law on admissibility of confession statements under Indian law. They provide as follows:-
"25. Confession to police-officer not to be proved. - No confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. -- No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
27. How much of information received from accused may be proved. -- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police- officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
(46) These provisions reflect the constitutional safeguards provided under Article 20(3) of the Constitution of India, which states that no accused of an offence shall be compelled into being a witness against himself.
(47) The Sections, read with article 20(3) of the Constitution of India make it amply clear that a confession made by any person to a police officer is inadmissible as evidence, except for the singular cases where such statement results in a consequent discovery of fact. It is also not res integra that confessional statements made to the police by the accused cannot be a basis to prove the guilt of the accused. [Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119, Vsanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253, Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 437].
(48) In the case of State of UP v. Deoman Upadhyay, AIR 1960 SC 1125, a constitution bench of the Hon'ble Apex Court explained the idea behind Sections 24-27 of the Act:
"17. Section 25 and 26 are manifestly intended to hit at an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. But these sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing offences as it is concerned with protecting persons who may be compelled to give confessional statements. If s. 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of the truth of the statement made by him, and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement, that rule is not to be deemed unconstitutional, because of the possibility of abnormal instances to which the legislature might have, but has not extended the rule." (emphasis supplied) (49) On interpretation of Section 27 of the Indian Evidence Act, the Hon'ble Apex Court in Bodhraj alias Bodha v. State of Jammu and Kashmir, (2002) 8 SCC 45 has observed that:-
"18. ...The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police.... 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 as 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." (emphasis supplied) (50) Therefore, it is clear that in the event that the requirement of Section 27 of the Act are met with i.e. (1) a fact is discovered (2) discovery is in consequence of the confession statement, then the part of the statement that relates to the fact discovered becomes admissible in evidence.
(51) It also fairly settled that 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. [State of Maharashtra v. Damu, (2000) 6 SCC 269, State of Punjab v. Gurnam Kaur, (2009) 11 SCC 225, Bhagwan Dass v. State (NCT) of Delhi, (2011) 6 SCC 396, Rumi Bora Dutta v. State of Assam, (2013) 7 SCC 417] (52) It is also settled position that Section 27 only becomes applicable when the confession statement leads to the discovery of a new fact. In Madhu v. State of Kerala, (2012) 2 SCC 399, the Hon'ble Apex Court clarified that:
"47. ...The exception postulated under Section 27 of the Indian Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited ''...as it relates distinctly to the fact thereby discovered....'. The rationale behind Section 27 of the Indian Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused."
(53) In Charandas Swami v. State of Gujarat, (2017) 7 SCC 177, the Hon'ble Apex Court summarized the principles under Section 27:
"59. In our view, the decision in the case of Navjot Sandhu (Supra) [State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600] has adverted to all the previous decisions and restated the legal position.
"121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an Accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. ...The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused....
60. This Court has restated the legal position that the facts need not be self-probatory and the word "fact" as contemplated by Section 27 is not limited to "actual physical material object". It further noted that the discovery of fact arises by reason of the fact that the information given by the Accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. In paragraph 128, the Court noted the statement of law in Udai Bhan (Supra) [Udai Bhan v. State of UP, 1962 Supp (2) SCR 830] that, "A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the Accused as to its existence." (emphasis supplied) (54) The presumption of certain facts by the Courts in the absence of direct evidence of an offence has been an accepted practice. However certain principles guide such exercise of such presumption. The presumption must be an inference of fact drawn from another proved fact that is likely to flow as a common course of natural events, human conduct and public/private business vis-avis the facts. The Courts in drawing such presumption must look at the facts from an angle of common sense and common experience of man.
(55) The Hon'ble Apex Court in Limbaji v. State of Maharashtra, (2001) 10 SCC 340 observed that:
"9. ...A presumption of fact is a type of circumstantial evidence which in the absence of direct evidence becomes a valuable tool in the hands of the Court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of our Criminal Law. It is an inference of fact drawn from another proved fact taking due note of common experience and common course of events. Holmes J. in Greer v. US [245 USR 559] remarked "a presumption upon a matter of fact, when it is not merely a disguise for some other principle, means that common experience shows the fact to be so generally true that courts may notice the truth". ... Section 114 enjoins:"the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case." Having due regard to the germane considerations set out in the Section, certain presumptions which the Court can draw are illustratively set out. It is obvious that they are not exhaustive or comprehensive. The presumption under Section 114 is, of course, rebuttable. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Judge. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not." (emphasis supplied) (56) In State of A.P. v. Vasudeva Rao, (2004) 9 SCC 319, reiterating the principles for presumption, noted a word of caution in the judicial exercise of presumption, holding that:
"17. ...Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. 18. ...While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. 19. ...Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337 "A presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning"." (emphasis supplied) (57) Applying the aforesaid principles, can it be said that the confessional statement led to discovery of any new fact. Well, there is nothing on record to establish the same as the FSL Report does not support the prosecution case.
(58) The decision of the trial court suffers from an error in appreciation of principles of evidentiary law. In Ram Chander v. State of Haryana, (1981) 3 SCC 191, the Hon'ble Apex Court put to itself, the question of the role of a judge trying a criminal case. The Court observed that:
"2. ...If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."
(59) This was the reason for giving wide powers to explore very avenue and discover the truth to the presiding judge. The Court further observed that the Court therefore had to actively participate in the trial to elicit the truth and to protect the weak and the innocent, at the same time balancing the fact that it must not assume the role of the prosecutor. Using Lord Dennings' words, the Court in the preceding decision held:
"4. ... The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old."
(60) This has been reiterated in State of Rajasthan v. ANI, (1997) 6 SCC 162, where the Hon'ble Apex Court yet again held that it was the power and duty of the trial court to put any question to the witnesses and the parties at any point in order to ascertain the and discover the relevant facts. The power given under Section 165 of the Evidence Act was intended to be an unbridled power to the courts only for the reason that necessity for eliciting the truth is primary in a criminal trial.
"As upheld by the Hon'ble Apex Court, the role of the higher courts is also to point out errors in law and to lay down jurisprudence to guide the decision-making of the lower courts. Keeping this in mind we have reiterated the principles that ought to have been followed by judicial officers in their decisions, more so in their capital punishment sentencing. A decision without appreciation of principles of law and facts leads to a travesty of justice. We hope and expect these principles are taken cognizance in all decisions of the courts."
(61) As we find that the charges were framed by the trial court on 30.07.2013 and on the same day, the learned Amicus Curiae was appointed to defend the accused-appellant, which reveals that at the time of framing of charges, learned Amicus Curiae was not in position to place his submissions, as no time was given to him by the court below as provided under Section 227 of Cr.P.C. It also reveals from the record that learned Amicus Curiae did not make any request for time for placing his submissions, therefore, the legal aid provided to the accused-appellant by the trial court was not real and effective. As it is held by the Hon'ble Apex Court in the case of Anokhilal Vs. State of Madhya Pradesh (supra) that the legal aid provided to the accused person through Amicus Curiae must be real and effective.
(62) As we also find that the prosecution tried to develop a case that the abrasions found on the Prepuce and Glans (Genitals) of the accused-appellant is due to intercourse with the child having very narrow vagina; in case, the prosecution case is admitted that the injury on the genital part of the accused-appellant is caused due to rape with the minor having small vagina, then as per the Modi's Medical Jurisprudence & Toxicology, 22nd Edition, an abrasion or laceration may be discovered on the Prepuce or Glans penis, but more often on the fraenum, due to forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases; bruising and laceration of the external genitals may be present with redness, tender swelling and inflammation; in nubile virgins, the hymen, as a result of completed sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small tags of tissue. But in the present case, no such injury is found on the genital parts of the deceased rather PW-5 Dr. Shipra Singh opined two finger admits in vagina of the deceased, therefore, the prosecution story is doubtful.
(63) The other point that the prosecution relied are the statements of circumstantial witnesses namely Prem Nath Singh (PW-1), Vinay Prakash (PW-2), Mohd. Khaleel (PW-3) and Smt. Siyavati (PW-7) that the victim, on the date of incident, went out from her house at 02:00 p.m. and it is undisputed that Vinay Prakash (PW-2) has seen the accused-appellant, on the date of incident, in between 02:00 - 02:30 p.m., coming back from the grove of Pratap Singh; and Mohd. Khaleel (PW-3) has admitted that he was in the agricultural filed which is 150 mt away from the place of incident since 09:00 a.m. to 05:30 p.m., but he has not deposed before the trial court that either he saw the deceased or heard her crying. Therefore, the prosecution story is also doubtful.
(64) As after amendment in the year 2006, under Section 53 A of Cr.P.C. it is obligatory on the part of the prosecution to get the DNA test to nab the actual culprit, but in the present case, the pubic hair and nails of the accused-appellant and two slides of vaginal smear of the deceased along with her pubic hair were also sent for pathological examination but the DNA test was not requested by the Investigating Officer.
(65) It is also relevant to mention here that the Forensic/Pathological examination of Vaginal smear of the deceased was done by the FSL, Lucknow who in turn sent a report which was taken into record by the trial court on 14.03.2014 and on this report, number B31/2 was introduced but it was not exhibited; even then the trial court considered in the judgment and observed that even no semen or spermatozoa was found, but in the injury alleged, abrasion was found on the genital part of the accused; and the accused-appellant was also seen by the Mohd. Khaleel (PW-3) in between 02:00 - 02:30 p.m. at the place of incident, when he was going towards the village from the place of incident, therefore, the accused-appellant is guilty; but the learned trial court failed to consider the fact that in case, no spermatozoa is found in the FSL examination of slides of vaginal smear then it was obligatory to conduct the DNA test; and the Investigating Agency also failed to comply the mandatory provisions of Section 53A of Cr.P.C. (amended in year 2006) as held by the Hon'ble Supreme Court in the case of Krishan Kumar Malik vs. State of Haryana (supra), therefore, the prosecution story is not reliable in relation to the manner in which alleged offence has been committed.
(66) As in the case of minor discrepancies found in the investigation, Appellate Court does not interfere in the judgment of trial court but in such a heinous offence, the investigation was done in very casual manner as on the date of incident, the inquest was done in the night in the light of seven petromax and head light of one tractor, and in the inquest report nothing is mentioned in the box that whether any article/item was found at the place of incident, near the body of the deceased, but on the next date, the site plan was prepared and the recovery of pair of leggings, under garments and sleepers of the deceased was shown and on the next date, after arrest of the accused-appellant, recovery of notebook of the accused is shown on the basis of his confessional statement, but the same was not sent to FSL for examination of hand writing of the accused-appellant; and the Investigating Officer also committed blunder by not requesting the DNA test as prescribed by Section 53A of Cr.P.C. (amended in the year 2006) are major lapses. In the case of Sunil Kundu and Another vs. State of Jharkhand reported in 2013 (4) SCC 422, the Hon'ble Supreme Court held that on the grant of minor lapses or irregularities in investigation acquittal is not permitted but major lapses those impact on the case of the trial cannot be ignored. The relevant para of Sunil Kundu and Another vs. State of Jharkhand (supra) is as under :-
"29.We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. In this case, the lapses are very serious. PW 5 Jaldhari Yadav is a pancha to the seizure panchnama under which weapons and other articles were seized from the scene of offence and also to the inquest panchnama. Independent panchas have not been examined. The investigating officer has stated in his evidence that the seized articles were not sent to the court along with the charge-sheet. They were kept in the malkhana of the police station. He has admitted that the seized articles were not sent to the forensic science laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the forensic science laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eyewitnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. In such a case, benefit of doubt must go to the accused. In the circumstances, we quash and set aside the impugned judgment and order [Sunil Kundu v. State of Jharkhand, Criminal Appeal No. 1762 of 2004, decided on 20-8-2007 (Jhar)] . The appellant-accused are in jail. We direct that the appellants A-1 Sunil Kundu, A-2 Bablu Kundu, A-3 Nageshwar Prasad Sah and A-4 Hira Lal Yadav be released forthwith unless otherwise required in any other case."
As the Hon'ble High Court in Criminal (Capital) Appeal No.5298 of 2015 (Vinod and Another vs. The State of U.P.), vide its judgment and order dated 17.02.2017 issued a direction to the State to make investigation of criminal case more effective, reliable and flawless. The relevant part of the judgment in the case of Vinod and Another vs. The State of U.P. (supra) is reproduced as under:-
"192. In view of the above, as our humble contribution, in order to make investigation of Criminal cases more effective, reliable and flawless We are passing following directions:
(I) All the Investigating Officers shall endeavor/make their best efforts to record the statements of informant, victim/injured and other important witnesses of fact, of the case as far as possible at the earliest and If it is not possible to do so within 24 hours from the registration of First Information Report, they shall furnish separate explanation for late recording of the statement of each witness alongwith statement of the witness concerned.
(II) With a view to curtail delay in recording the statements of informant/victim and witnesses, to curb the growing tendency of the witnesses to disown their earlier statements recorded under Section 161 Cr.P.C. and turning hostile and to ensure their reliability, the Investigating Officer and State Government shall without fail inform the informant and all the witnesses that they may submit their evidence by e- mail/speed post or registered post on affidavit, sworn before the Oath Commissioner or Public Notary. If such affidavits are filed by the informant and the witnesses, same will be received, taken into consideration and needful will be done in respect of those by the I.O. In such cases, I.O. will also be at liberty to make further queries with the informant/witnesses if need arises to do so.
(III) Copies of statements recorded under Section 161 Cr.P.C. shall be simultaneously provided by the Investigating Officer to the first informant and witnesses with intimation that if they have any objection in respect of their statement or any discrepancy is found in the same, it shall be brought to the notice of the I.O. at the earliest, preferably within a week alongwith supporting evidence. An endorsement to this effect shall also be made by the I.O. in the case diary.
(IV) The above directions (I), (II) and (III) will also apply in respect of recording statements of accused and defence witnesses.
(V) All the Investigating Officers will collect each and every material and piece of evidence available at the place of incident and at the earliest and if not done so within 24 hours, they will furnish their explanation to that effect.
(VI) I.O. will prepare site plan of each and every place connected with the crime showing all the necessary details thereof like distance of witness/injured/aggressor etc. VII) As directed by Hon'ble Apex Court in Prakash Vs. State of Karnataka (supra), the prosecution must lay stress on scientific collection and analysis of evidence, particularly since there are enough methods of arriving at clear conclusions based on evidence gathered. In view of above, all relevant material and evidence collected from the site, shall be sent for Hand Writing Expert, Ballistic Expert, Forensic Science Laboratory, Finger Print Expert, D.N.A. Expert etc. as the case may be, by the I.O. for obtaining expert opinion/report in respect to such articles collected from the place of incident.
(VIII) Where ever it is possible and necessary the I.O. will collect 'Call Details Record' (C.D.R.) of Mobile Phones/Land Line phones of the victim/witnesses/accused as the case may be, footage of C.C.TV cameras available on the spot/near by locations and put phone numbers/mobile numbers of suspected persons likely to be involved in the offence concerned on surveillance, without any undue delay.
(IX) In all cases I.O. will adhere strict compliance of various provisions of Cr.P.C., Police Act and the Regulations related to the 'investigation'.
(X) Superior Police Authorities shall develop effective monitoring system to ensure strict compliance of relevant rules, provisions and above directions by the Investigating Officers during investigation. In the cases of willful and intentional violation of the aforesaid by the Investigating Officer concerned same shall be cured at the earliest and appropriate action may be taken against the erring Investigating Officer.
(XI) The State Government shall ensure vide publicity of these directions by its publication in the news papers, electronic media and display on notice boards at the offices of superior Police Officers.
(XII) A copy of this order shall be sent to Chief Secretary and Secretary (Home), Government of Uttar Pradesh for compliance of this order. They will submit their compliance report on affidavit within 3 months from the date of receipt of this order, to this Court.
(XIII) The Registrar General of this Court is directed to send a copy of this order to the Chairmen of all the District Legal Services Authority and the State Legal Services Authority for vide publicity of above directions."
(67) As it is also evident that the statement of the accused-appellant under Section 313 Cr.P.C. was taken by the trial court by framing eleven questions on 08.08.2014, but prosecution evidence available on record was not put to the accused-appellant properly; as in Question No.1, it is not mentioned that the deceased went out from her home at 02:00 p.m on the date of incident, in Question No.2 it is mentioned that on the date of incident at about 02:30 p.m., PW-2 Vinay Prakash has seent the accused-appellant coming out from the grove in question and in the Question No.3, in relation to the deposition of PW-3 Mohd. Khaleel, in which time is not explained properly and it is also not stated that he was working in the agricultural field since 09:00 a.m. to 05:30 p.m., and in question no. 3 this fact was not mentioned which is most relevant in the identical manner, and other questions based on deposition of other witnesses are having major lapses. The contents of statement of accused-appellant recorded under Section 313 Cr.P.C. prepared by the trial court and the reply of the accused-appellant, who was represented by the Amicus Curiae, in relation to them is as under:-
c;ku eqfYte varxZr /kkjk 313 n0iz0la0 vfHk;qDr mHku;kno iqq= lhrkjke vk;q& 35 o"kZ yxHkx is'kk [ksrh fuoklh bljsguk Fkkuk nsok ftyk&ckjkcadh iz'u 1- vfHk;kstu lk{kh la- 1 izseukFk flag us lk{; fn;k gS fd esjh yM+dh Js;k ?kVuk okys fnu ?kj ls dgha xk;c gks x;h Fkh ftldh ryk'k dh x;h rks mldh yk'k xkao ds ckgj taxy esa feyh ftldh fjiksVZ bl lk{kh us Fkkuk nsoka esa ntZ djk;hA bl lk{kh us U;k;ky; ij rgjhj izn'kZ d&1 o iapk;rukek izn'kZ d&2 dks lkfcr fd;k gS] bl lEcU/k esa vkidks D;k dguk gS\ mRrj& fjiksVZ esjs fo:} ugh gSA oknh dk c;ku U;wVªy gSA iz'u 2- vfHk;kstu lk{kh la- 2 fou; izdk'k us U;k;ky; ij lk{; fn;k gS fd ?kVuk okys fnu fnu esa djhc ?kVuk LFky okyh ckx ls fudy dj tkrs gq, ns[kk Fkk vkSj mlds tkus ds ckn mlh taxy esa e`rdk dh yk'k cjken gqbZ Fkh] bl lEcU/k es vkidks D;k dguk gS\ mRrj& vfHk;kstu lk{kh 2 oknh Fkk esyh ennxkj gS blfy, xokgh fn;k gSA iz'u -3- vfHk;kstu lk{kh la- 3 eks0 [kyhy us lk{; nh gS fd esjs xkao ds izseukFk flag dh yM+dh Js;k dgha xk;c g¨ x;h Fkh] mldh yk'k xkao ds ckgj ckx esa feyh Fkh] ekSds ij iqfyl okys vk;s Fks] rc eSaus crk;k Fkk fd eSu vkidks ?kVuk LFky okyh ckx esa fnu esa nksigj ds le; tkrs gq, ns[kk Fkk] bl lEcU/k esa vkidks D;k dguk gS\ mRrj- lk{kh la0 3 oknh dk tsfo;k xokg o etnwj gS blfy, xokgh fn;kA ?kVuk okys fnu og iou dqekj d [ksr esa isijfeUV yxk jgk FkkA iou dqekj oknh ds ifjokj dk gSA iz'u 4- vfHk;kstu lk[kh la0 4 MkDVj c`ts'k dqekj JhokLro us lk{; nh gS fd eSus e`rdk Js;k dh yk'k dk iksLV ekVZe fd;k Fkk rFkk vkids xqIrkaxks dk ijh{k.k fd;k FkkA bl lk{khus iksLV ekVZe fjiksVZ izn'kZ d 3 o vkidh esfMdy fjiksVZ izn'kZ d 4 dks lkfcr fd;k gS] bl lEcU/k esa vkidks D;k dguk gS\ mRrj& lgh gSA iz'u 5- vfHk;kstu lk{kh la0 5 MkDVj f'kizk flag us lk{; nh gS fd e`rdk ds iksLV ekVZe ds le; eSa Hkh ekSds ij ekStwn FkhA mlds xqIrkaxks dk ijh{k.k esjs }kjk fd;k x;k Fkk] ftls MkDVj oh0ds0 JhokLro us viuh iksLV ekVZe fjiksVZ eas vafdr fd;k] bl lEcU/k esa vkidks D;k dguk gS\ mRrj& Mk0 f'kizk flag dk lk{; Lohdk;Z gSSA iz'u 6- vfHk;kstu lk{kh la0 6 gsM dka0 jkejkt us lk{; nh gS fd bl eqdnes dh fpd o dk;eh esjs }kjk fy[kh x;h FkhA bl lk{kh us fpd izn'kZ d 5 o dk;eh th0Mh0 izn'kZ d 6 dks U;k;ky; esa lkfcr fd;kA bl lEcU/k esa vkidks D;k dguk gS\ mRrj& gs0dk0 jke jkt flag us fjiksVZ fy[k og Lohdk;Z gSA iz'u 7- vfHk;kstu lk{kh la0 7 Jherh fl;korh e`rdk dh eka us lk{; nh gS fd esjh yM+dh ?kVuk okys fnu fnu eas xk;c gks x;h Fkh] ftldh yk'k jkr esa izrki flag dh ckx esa feyh FkhA bl lEcU/k esa vkidks D;k dguk gS\ mRrj& Jherh fl;krh dk c;ku nqHkkZoukiw.kZ gS og vkf[kjh c;ku iyV fn;k gS Lohdk;Z ugh gSA iz'u 8- vfHk;kstu lk{kh la0 8 ,p0,p0vks0 ,e0,e0 [kku us lk{; nh gS fd bl eqdnes dh foospuk esjs }kjk dh x;h FkhA nkSjku foospuk e`rdk dh yk'k dk ia;krukek o uD'kk utjh rFkk vkidks fxjQ~rkjh djus o lk{kh x.k dk c;ku ysus ds mijkUr vkjksi i= U;k;ky; esa izsf"kr fd;k FkkA bl lk{kh us iapk;rukek izn'kZ d 7 rk izn'kZ d 11] uD'kk utjh izn'kZ d 12 o d 15 QnZ izn'kZ d 13] QnZ Mk;jh izn'kZ d 14] vkjksi i= izn'kZ d 16 rFkk ijpktkr diM+s oLrq izn'kZ 1 rk 10 dks U;k;ky; ij izekf.kr fd;k gS] bl lEcU/k esa vkidks D;k dguk gS\ mRrj& lk{kh ua0 8 dh foospuk fu;e ds izfrdwy gS fu;ekuqlkj foospuk ugh dh gSA iz'u 9- vkids fo:} eqdnek D;ksa pyk\ mRrj& ukyh ukcnku ds jaft'k o iqfyl viuh ftEesnkjh ls cpus ds fy, izkFkhZ vfHk;qDr dks >wBk Qalk;k gSA iz'u 10- D;k vkidks lQkbZ nsuh gS\ mRrj& th ughA iz'u 11- D;k vkidks dqN vkSj dguk gS\ mRrj& th ughA fu0v0 mHku mQZ vHk; ;kno g0 viBuh;
vij l= U;k;k/kh'k U;k;ky; la0 1] ckjkcadh 08-08-2014 (68) As the accused-appellant categorically mentioned that due to enmity in between the family members of the deceased and him in relation to water drainage, he has been falsely implicated in the present case by the police only to work out the case to avoid their responsibilities. The circumstances on which the prosecution relied upon has not been put under Section 313 Cr.P.C. to the accused-appellant which prejudice his right to lead effective defence and a fair trial which has caused miscarriage of justice. As it is well settled by the Hon'ble Supreme Court in the case of Mahesh Tigga vs. State of Jharkhand (2020) 10 SCC 108 that in criminal trial under Section 313 Cr.P.C., it is obligatory on the trial court to explain incriminating evidence against him in question to furnish evidence against his defence. but in the present case, in very casual manner, questions are framed. The Hon'ble Supreme Court in Criminal Appeal No.1735-1736 of 2010 (Satbir Singh & Another vs. State of Haryana) vide judgment and order dated 28.05.2021 again reiterated the aforesaid principles. The relevant paras of judgment of Maheswar Tigga vs. State of Jharkhand (supra) and Satbir Singh & Another vs. State of Haryana (supra) are reproduced as under:-
Maheswar Tigga vs. State of Jharkhand (supra) "9. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 CrPC. In Naval Kishore Singh v. State of Bihar [Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502 : 2004 SCC (Cri) 1967], it was held to be an essential part of a fair trial observing as follows: (SCC p. 504, para 5) "5. The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence.""
Satbir Singh & Another vs. State of Haryana (supra) "22. It is a matter of grave concern that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice- "audi alteram partem", as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the Court to question the accused fairly, with care and caution. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution..."
(69) Learned trial court has also observed that the deceased was mentally retarded and the accused-appellant is having a bad character but there are no evidence available on record in these regard.
(70) As the Hon'ble Supreme Court in the Case of Reena Hazarika vs. State of Assam (2019) 13 SCC 289 that unlike prosecution, accused is not required to establish defence beyond all reasonable doubt - accused has only to raised doubts on a preponderance of probability. The relevant of the aforesaid judgment is reproduced as under:-
"22.The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was the assailant of the deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case."
(71) The Court is conscious of the fact that in the present case, 12 years' old girl has been sexually assaulted and done to death by throttling, but the fact remains that whether it was the accused-appellant who has committed the alleged crime appears to be doubtful. In such circumstances, the Court comes to the conclusion that the manner in which the prosecution tried to establish the execution of crime is doubtful. Hence, the prosecution failed to prove its case beyond reasonable doubt. The incident does not appear to have happened in the manner in which the prosecution want the Court to believe it had happened. Therefore, the accused-appellant becomes entitle for the benefit of doubt and the appeal deserves to be allowed.
(72) For all the aforesaid reasons, we allow the Criminal Appeal No. 1202 of 2014 filed by accused-appellant Ubhan Yadav @ Abhai Kumar Yadav and set aside the judgment of conviction dated 29.08.2014 passed by Shri Satya Prakash Naik, Additional Sessions Judge, Court No.1, Barabanki in S.T. No.266 of 2013 arising out of Case Crime No.101 of 2013, under Sections 302, 201 & 376 I.P.C., P.S. Dewa, District Barabanki, in Criminal Appeal No.1202 of 2014 (Ubhan Yadav @ Abhay Kumar Yadav Vs. State of U.P.).
(73) The Death reference made by the trial court with respect to the accused-appellant - Ubhan Yadav @ Abhai Kumar Yadav - is also set aside.
(74) The accused-appellant - Ubhan Yadav @ Abhai Kumar Yadav - is in jail. Let the accused-appellant be released forthwith unless required in any other case.
(75) It is further directed that the appellant namely Ubhan Yadav @ Abhai Kumar Yadav shall furnish bail bond with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.
(76) Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.
(77) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.
(78) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Rajeev Singh,J.) (Ramesh Sinha,J.)