Allahabad High Court
Jagta vs State Of U.P. on 22 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1406, (2019) 109 ALLCRIC 546
Author: Ramesh Sinha
Bench: Ramesh Sinha, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on: 17.07.2019
Delivered on: 22.08.2019
JAIL APPEAL No. 332 of 2018
Jagta --------Appellant
Vs
State of Uttar Pradesh ---------Respondent
With
CRIMINAL APPEAL No. 606 of 2018
Sunder Singh ---------Appellant
Vs
State of Uttar Pradesh --------Respondent
___________________________________________________________
For Appellants : Sri Zafar Abbas, Advocate
For Respondent/State : Sri Irshad Husain, AGA ___________________________________________________________
Hon'ble Ramesh Sinha, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J.
1. These two appeals have been preferred against the judgment and order dated 05.05.2015 passed by the Learned Additional District and Sessions Judge, Court No.2, Moradabad in Session Trial No. 419 of 2010, (State vs. Sunder Singh and Anr) under Sections 302/34, 376 of Indian Penal Code (hereinafter referred to as IPC) and Section 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act), P.S. Asmoli, District Sambhal (Sessions Division Moradabad), whereby appellants Sunder Singh and Jagta have been convicted under Sections 302/34, 376 (D) IPC and 3(2)(v) SC/ST Act. Both the appellants were sentenced to imprisonment for life along with fine of Rs. 10,000/- each under Section 302/34 IPC, imprisonment for life along with fine of Rs. 10,000/- each under Section 376-D IPC and imprisonment for life along with fine of Rs. 10,000/ each under Section 3(2)(v) of SC/ST. In default of payment of fine, they have to undergo three years rigorous imprisonment under each head. All the sentences were directed to run concurrently.
2. Prosecution version is that on 09.12.2009 at 8:00 AM complainant's wife Suman has gone to jungle for agriculture work in sugarcane crop and after that at around 10:30 PM, complainant's sister, aged 14 years, (who has been referred in this judgment as deceased) has left her home to go there for collecting fodder from Suman. One Samar Pal and Mukhiya @ Dinesh have also seen the deceased while she was going to jungle but deceased did not reach there. When Suman came at her home and inquired about deceased, complainant's father PW-2 Karan Singh told her that the deceased has left home at about 10:30 AM to collect fodder from her. Complainant's wife Suman, father and one Karan Singh started search of deceased and when they reached near sugarcane field of Kripal Singh, at around 01.00 PM, appellants/accused Sunder Singh and Jagta came out from said sugarcane field and when they were asked about deceased, they flurried and ran away from there. When complainant's wife, father and Karan Singh made search in the same sugarcane field, dead body of deceased was found lying inside the said sugarcane field. There was a rope around her neck and her clothes were lying scattered. As per complainant, both the appellants have committed rape upon his sister deceased and due to the fear, they committed her murder. One Samar Pal and Mukhiya @ Dinesh told that when deceased was going to jungle, both the accused appellants were present near the spot as they were collecting water pipe there and except them there was no other person and thus, murder of deceased was committed by them.
3. Mentioning all these facts, complainant Padam Singh has submitted a tahreer Ex. Ka-1 at police station and on that basis, case was registered against both the appellants-accused under Sections 376, 302 IPC and 3(1)(12) SC/ST Act on 09.12.2009 at about 17:35 hours vide FIR Ex. Ka-2.
4. The inquest proceedings were conducted by PW-8 S.I. Raj Kumar Sharma and inquest report Ex. Ka-7 and other related papers like Photo lash, letter RI, letter CMO and challan dead body etc Ex. Ka- 8 to ka-11 were prepared. One sleeper of the deceased and some broken bangles found at the spot were also seized vide memo Ex. Ka-12. The dead body of deceased was sealed and sent for postmortem.
5. Postmortem on the dead body of the deceased was conducted by PW-5 Dr. S.N. Tiwari on 10.12.2009 vide postmortem report Ex. Ka-4 and following anti mortem injuries were found on the person of deceased.
(i) Multiple Abrasion and contusion 8 cm x 5 cm over on right of neck.
(ii) Bleeding seen in both nostril.
(iii) Multiple Abrasion and contusion covering 4 cm x 2 cm over left side chick.
(iv) On dissection hyoid bone found fractured.
As per Autopsy Surgeon, the cause of death of the deceased was Asphyxia as a result of ante-mortem strangulation.
6. Initially investigation was conducted by circle officer Sarvesh and subsequent investigation was conducted PW-6 CO Brejesh Singh. During course of investigation on 10.12.2009 both the accused persons were arrested and their clothes were seized separately vide seizure memo Ex. Ka-13. After completion of the investigation, both the accused persons were charge-sheeted vide Ex. Ka-5.
7. Trial Court framed charges under Sections 376, 302/34 IPC and 3(2)(v) of SC/ST Act against both the accused persons. They pleaded not guilty and claimed trial.
8. In order to bring home the guilt of the accused persons, prosecution has examined eight witnesses. After prosecution evidence, the both the accused persons were examined under Section 313 Cr.P.C., wherein they denied prosecution evidence and claimed that they have been falsely implicated. However, no evidence was adduced in defence.
9. After hearing and analyzing the evidence on record, both the appellants were convicted under Sections 302/34, 376 (D) IPC and 3(2)(v) of SC/ST Act by the trial court and were sentenced as stated earlier.
10. Being aggrieved by the impugned judgment and order, accused appellant Jagta has preferred the Jail Appeal No. 332 of 2018 and accused appellant Sunder Singh has preferred Criminal Appeal No. 606 of 2018.
11. On the request of the appellant Jagta for appointing an Amicus Curiae to argue his appeal hence we appointed Sri Zafar Abbas, Advocate as Amicus Curiae to argue his appeal who is also appearing as counsel for appellant Sunder Singh in the connected appeal.
12. We have heard Sri Zafar Abbas, learned counsel for the appellants and Sri Irshad Husain and learned A.G.A. for the State and perused record.
13. Learned counsel for the appellants has argued that there is no reliable evidence against the appellants and they have been convicted merely on the basis of suspicion. PW-1 Padam Singh and PW-2 Karan Singh are the brother and father of the deceased and thus, they are interested witnesses and therefore, their evidence cannot be relied upon. There is no eye-witness of the alleged incident and the chain of circumstances is not complete. The statement of PW-2 Karan Singh and PW-3 Samarpal Singh that both the appellants were seen coming out from sugarcane field of Kripal Singh and ran away, is not reliable. Further, there is no conclusive medical evidence that deceased was subjected to rape. It has been further submitted that there is no material on record at all to attract provisions of Section 3(2)(v) SC/ST Act. It was submitted that learned trial court has not appreciated the evidence properly and committed error by convicting the appellants.
14. Per contra learned A.G.A. submitted that the circumstantial evidence on record clearly points out that both the appellant-accused have subjected deceased to rape and due to fear that deceased may disclose the incident, they committed her murder. There is evidence of PW-3 Samarpal Singh that when deceased was going to collect fodder, she was seen by PW-3 near agricultural field of Kripal Singh and that both the appellants Sunder Singh and Jagta were also there as they were collecting water pipes there. Further there is evidence of PW-2 that while they were searching deceased and reached near filed of sugarcane filed of Kripal Singh, both appellants have come out from sugarcane field and thereafter dead body of deceased was recovered from same place. It was pointed out that medical evidence clearly shows that deceased was molested and subjected to rape and thereafter her murder was committed. Learned A.G.A. submitted that conviction of appellant is based on evidence and there is no illegality in the same.
15. In this case there is no eye witness of the alleged incident and case is based on circumstantial evidence. It is well settled that though conviction can be based on circumstantial evidence alone but for that the prosecution must establish the chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which interference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, the accused and none else have committed the offence. In a landmark judgment of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Apex Court held as under:
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:
Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accuses, 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.
(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 the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
In Joseph vs. State of Kerala, [(2000) 5 SCC 197], the Hon'ble Apex court has explained under what circumstances conviction can be based purely on circumstantial evidence. It was observed, that,
16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC 79). In C. Chenga Reddy and others v. State of Andhra Pradesh, (AIR 1996 SC 3390), the Supreme Court has held that:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on, is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.
The principle that emerges from these decisions is that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference of guilt is drawn must be fully established and there should not be any missing links in the case. 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 the act must have been done by the accused. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone.
16. In the instant case perusal of evidence shows that PW-1 Padam Singh has stated that on the day of incident his wife has gone to collect fodder from sugarcane crop and after that his sister/ deceased, aged about 14 years, has also left home for going there to collect fodder from her. While going to jungle, she was seen by Kripal Singh, Samarpal, Mukhiya @ Dinesh and on their asking, she has told that she was going to collect fodder. When deceased did not reach there, wife of PW-1 Padam Singh came at her home and inquired about the deceased but father of PW-1 told that deceased had left home at 10:30 AM for going to jungle to collect fodder. PW-1 further stated that while making search of deceased, her wife Suman, father Karan Singh and one Samarpal reached near sugarcane field of Kripal Singh, at the same time at around 1:00 PM, appellants Sunder Singh and Jagta Singh were coming out from sugarcane field and when they were asked about the deceased, they flurried and ran away from there. Thereafter, dead body of deceased was found in the same sugarcane filed. There was a rope around her neck and her clothes were lying scattered. PW-1 Padam Singh further stated that the appellants-accused Jagta and Sunder Singh have committed rape upon the deceased and with the fear that the incident may come out, they committed her murder. At the spot there were only accused Sunder Singh and Jagta and none else. PW-1 Padam Singh has proved his tahreer as Ex. Ka-1.
17. P.W. 2 Karan Singh stated that on the day of incident, his daughter (deceased) has gone to collect fodder from the field of one Inderpal but she did not return back. When he along with others has gone to search her and reached near the field of Kripal Singh, at about 1:00 PM, appellants Jagta and Suder Singh were coming out from filed of Kripal Singh and when they were enquired about deceased they did not tell anything. When they were again asked, both the accused ran away from there. PW-2 stated that they reached at the point of field from where both the appellants have come out and saw that some crops of sugarcane was lying damaged there and at some distance the dead body of deceased was lying in semi-naked condition and there was a rope around her neck and her clothes were lying scattered. PW-2 further stated that both the appellants-accused were known to him as Sunder is resident of his village while Jagta is resident of nearby village Sedpur and both were employed by one Kanchan Jaat.
18. PW-3 Samarpal has stated that on the day of incident, at about 10:30-11:00 AM, he and Mukhiya @ Dinesh were carrying fodder from jungle and when reached near sugarcane field of Kripal Singh, deceased has met them and when they inquired from her as to where she was going, she told that she was going to collect fodder. PW-3 further stated that near the filed of Kripal Singh, appellants-accused Sunder Singh and Jagta were collecting water pipe. PW 3 stated that they both were known to him since before the incident.
19. PW-4 Gurudev Singh is a formal witness, who has recorded FIR. PW-6 A.S.P. Brijesh Singh has conducted part investigation. During investigation he has recorded the statements of witness and has filed charge-sheet Ex. Ka-5.
20. PW-7 Dr. M.C. Gurecha has examined vaginal smear of deceased and has proved his report Ex. Ka-6. As per PW 6, sperm were found in the vaginal smear of the deceased.
21. It is clear from the post-mortem report of the deceased that the death of the deceased was homicidal in nature. This fact has not been disputed from the side of appellants. However it was submitted by the learned counsel for the appellants that there is no medical evidence to establish that deceased was subjected to rape. In this regard it may be stated that merely because there was no injury on the private parts of deceased, it could not be said that deceased was not subjected to rape. Vaginal smear examination report exhibit ka-6, clearly shows that sperms were found in the vaginal smear of the deceased. In this regard, statement of PW-7 Dr. M.C. Gurecha, who examined vaginal smear of deceased, is clear that sperm were found in the vaginal smear of deceased. Further, as per the FSL report exhibit ka-15, sperms were also found at the underwear of appellant-accused Jagta. There is also evidence to the effect that dead body of deceased was found in semi-naked condition and clothes were lying scattered. As per the inquest report, there were blood spots at the thigh of deceased. All these facts clearly established that before her murder, deceased was subjected to rape. The deceased was a young girl, aged 14 years, thus, she could have been easily overpowered by the accused-appellants and thus, the fact that she did not suffer any injury at her private parts, can not be given much importance. It is well settled that absence of injuries on private parts of victim would not rule out being subjected to rape. In this connection reference may be made to case of Rafiq vs. State of U.P. (1980) 4 SCC 262 and Sheikh Zakir vs. State of Bihar (1983) 4 SCC 10. The contention of the learned counsel for the appellants that there is no medical evidence of rape has no force.
22. It was argued by the learned counsel for the appellants that PW 1 and PW 2, being brother and father of deceased, are interested witness. In this regard, it may be observed that mere relationship is not sufficient to discredit a witness. It is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spear the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Hon'ble Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. In case of Dilip Singh Vs State of Punjab, A.I.R. 1983, S.C. 364, it was held by the Hon'ble Supreme Court that the ground that the witnesses being the close relatives and consequently being the partition witness would not be relied upon has no substance. Similar view has been taken by the Hon'ble Supreme Court in case of Harbans Kaur V State of Haryana, 2005, S.C.C. (Crl.) 1213; and State of U.P. vs. Kishan Chandra and others, 2004 (7), S.C.C. 629. The contention about branding the witnesses as interested witness and credibility of close relationship of witnesses has been examined by Hon'ble Apex court in a number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness (Dalbir Kaur v. State of Punjab, AIR 1977 SC 472). The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. There is no rule of law that a Court cannot act on the evidence of interested witnesses. The only thing is that a Court should be careful and cautious in accepting that evidence and if after due scrutiny it is found that their evidence does not suffer from any infirmities, in that case, there is no reason why a conviction should not follow on that evidence. In the case of Satbir Singh & Ors V State of Uttar Pradesh [(2009) 13 SCC 790], it was observed that it is well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. In the present case it is quite natural that it is the family members of the deceased, who would know as to when and where deceased, a girl aged 14 years, has gone. When deceased gone missing, it is quite natural that her family members would search her. The version put forward by PW 2 and PW 3 is quite natural and nothing adverse could be elicited in their cross-examination. Further, PW 3 appears a thoroughly independent witness and the prosecution version finds support from his statement. Here it would be pertinent to mention that there is nothing to show that these witnesses have any enmity or grudge against the appellants. In view of all these facts, the evidence PW 1 and PW 2 can not be doubted on the ground that they are brother and father of the deceased.
23. From statements of PW 1 and PW 2, it is clear on the day of incident at about 11.00 AM, deceased has gone to field to fetch fodder from the wife of complainant/ PW1. The evidence of PW 3 is to the effect that around same time deceased has met him near sugar cane field of one Kripal Singh and at that time both the accused-appellants were present there as they were collecting water pipe near land of Kripal Singh. The evidence of PW 2 further shows that when PW 2 along with other persons has gone to search deceased, at about 01.00 PM both the accused-appellants were seen coming out from the field of Kripal Singh. When PW 2 and his companion enquired them about the deceased, they ran away from there. PW 2 and others went at the place, from where both accused have come out from field of Kripal Singh, and saw that some sugarcane crop was lying damaged. As they went further inside the field, they found that dead body of deceased was lying in semi-naked condition and her clothes were lying torn and there was a rope around her neck. On all these facts, statements of witnesses are clear and cogent. These witnesses have been subjected to cross-examination but no such fact could emerge, which may create any doubt about credibility of these witnesses. Statement of PW 2 that at around 11.00 his daughter (deceased) has gone to fetch fodder is supported by PW 3, who appears an independent witness. From statement PW 3 it is also established that at around 11.00 AM, when deceased was last seen alive, both the accused-appellants were present there as they were collecting water pipe there. Thereafter, at about 01.00 PM, both the accused-appellants were seen coming out from the field of alleged Kripal Singh and when they were enquired about the deceased, they both ran away and after that dead body of deceased was found inside sugar cane field of Kripal Singh. In fact as per PW 2, when they reached at the point of alleged sugarcane field, from where both accused persons have out and when PW-2 and his companion went a little further, dead body of deceased was found lying there. The statements of the said witnesses are clear and cogent and no such fact could be elicited from their cross-examination, which could make any dent on the credibility of tthese witnesses. Further, as stated earlier, sperm were found in vaginal swab of deceased, which indicates that before her death, she was molested and subjected to rape. It appears that deceased has resisted the move of molesters as there were flesh pieces in her nails.
24. One of the important piece of evidence is that on the next day of incident, pant and underwear of both the accused persons were seized by PW 8 vide seizure memo exhibit ka- 13 and later on same were sent to FSL for examination. As per FSL report exhibit ka-15, spots of human blood as well sperm were found on the underwear of accused-appellant Jagta. Motive of committing murder of deceased is quite apparent as deceased was subjected to forcible rape and possibly due to the fear that she may disclose the incident, she was murdered. This fact also finds support from fact that as per postmortem report exhibit ka-4, presence flesh pieces was found in her nails, which indicates that the deceased has resisted the move of molesters.
25. Here it would be pertinent to mention that in their statements u/s 313 CrPC, the appellants have not offered any explaination what so ever regarding the incriminating circumstances. They have simply denied prosecution evidence but did not take any specific plea regarding circumstances that at 11.00 AM they were seen around the deceased and that at around 01.00 PM when PW 2 and others were searching deceased, they have come out from the sugar cane field of Kripal Singh and ran away and soon thereafter dead body of deceased was recovered from the same portion of field, from where they have fled. Similarly no specific plea was taken qua evidence that sperms were found on the underwear of appellant-accused Jagta and that blood spots were also found on his pant. No doubt, it is duty of prosecution to prove its case by cogent evidence but nevertheless in a case based on circumstantial evidence, when prosecution has alleged and led evidence to the effect deceased was last seen alive with accused, it is duty of accused to explain as how deceased suffered death or how he parted away company of deceased. In Neel Kumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766, the Apex Court observed:
"It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773)."
The Apex Court in Vasa Chandrasekhar Rao vs. Ponna Satyanarayana & Anr. [(2000) 6 SCC 286] and Geetha vs. State of Karnataka [(2000) 10 SCC 72] while explaining the law relating to circumstantial evidence has ruled that where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused. As indicated earlier, in this case, the incriminating circumstances were put to the appellants while recording their statements under Section 313 of the Code of Criminal Procedurebut they have merely denied the same. Therefore, such denial on the part of the appellant and failure to explain the circumstances proved will have to be treated as an additional link in the chain of circumstances to bring home the charge against the appellants.
26. On the basis of evidence, it is establisheded that at about 11.00 AM when deceased was last seen alive near sugarcane field of alleged Kripal Singh, both the accused-appellants were present there as they were working in a nearby field and were collecting water pipe and thereafter at around 01.00 PM, they were seen coming out from said sugarcane field and soon after dead body of deceased was found in side the same sugar cane field, from where both the accused have fled away. As stated above, appellants have failed to offer any explaination regrading any of the incriminating circumstance esatblished against the. Law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If an offence has been committed secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In fact it is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt but where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. No doubt mere conjectures or suspicion cannot take the place of legal proof and the large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, as observed by the Apex Court, but it is equally established that the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. If a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
27. In the present case, accused-appellants have failed to give any explanation, whatsoever and thus inference has to be drawn that it were the accused-appellants, who committed the incident in question. It would be pertinent to mention that time gap between the last seen of deceased around accused-persons and recovery of dead body of deceased is of just two hours. As stated earlier, deceased was subjected to rape before her murder and that she has resisted the move of her molesters. Thus, time gap between the said two circumstances is not much so as to create any doubt that any other person might have committed the incident. In such a small gap of time there is no possibility of any other theory except that the incident was committed by the appellants, specially when they have not come up with any explanation what so ever.
28. Considering entire evidence on record, so far as charge u/s 302 IPC is concerned, it is manifest that the prosecution has established the chain of circumstances, which consistently points to the accused-appellants Jagta and Sunder alone and these circumstances are inconsistent with their innocence. All the circumstances have been firmly established and when these circumstances are taken into consideration cumulatively, they conclude that within all human probability, it were the accused-appellants Jagta and Sunder and none else have committed the murder of the deceased. It is also established that before her death deceased was molested and subjected to rape. In FSL examination report, spots of human blood as well sperm were found on the underwear of accused-appellant Jagta. In the attending facts and circumstances of the matter, the involvement of accused Jagta in commission of rape is also established. However, as no blood spot or mark of sperm was found on clothes of accused-appellant Sunder and thus, it would not be safe to uphold his conviction u/s 376 IPC.
So far as the charge and conviction under Section 376 IPC is concerned, it may be seen that both the appellants were charged for the offence under Section 376 IPC while they have been convicted under Section 376(D) IPC. Thus, learned Trial Court committed error by convicting the appellants under Section 376(D), without framing charge under Section 376(D) IPC. In fact, as the age of the deceased was 14 years, accused must have been charged under Section 376(2)(I) IPC. Be that as it may, as it could not be proved that accused-appellant Sunder Singh has committed rape upon the prosecutrix thus, conviction of accused-appellant Jagta under Section 376(D) IPC is liable to be altered under Section 376 IPC. Keeping in view the facts and circumstances of the matter it wold be proper that appellant-accused Jagta be sentenced to imprisonment for life along with fine of Rs. 10,000/- under Section 376 IPC.
So far as the conviction of both the accused-appellants u/s 3(2)(V) SC ST Act is concerned, neither of the material witness has stated that they are members of scheduled caste or scheduled tribe. Even if they belong to such category, there is absolutely no evidence that the crime in question was committed on the ground that the deceased belong to scheduled caste or scheduled tribes. Hon'ble Supreme Court in Ramdas and Ors. V. State of Maharashtra, (2007) 2 SCC 170 (para 11) has held as under :
"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was prehaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."
The gravamen of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging to Scheduled Caste/Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are "......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe". Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was of 09.12.09. From the unamended provisions of Section 3(2) (v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community. The evidence and material on record does not show that the appellants have committed murder of the deceased on the ground that she belonged to Scheduled Caste or that she was raped on the ground of her caste. Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act can be pressed into service only if it is proved that the rape and murder has been committed on the ground that deceased belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellants in committing the offence upon the victim only because she belongs to Scheduled Caste community, the conviction of the accused-appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can not sustain. In view of these facts, the conviction and sentence of both the appellants under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is in not accordance with law and thus, the same is liable to be set aside.
29. In view of aforesaid, we are of the considered opinion that conviction of the appellant-accused Jagta and Sunder u/s 302 IPC is based on evidence and the trial court was justified in convicting the appellants of these charges and same is upheld accordingly. The sentence under Section 302 IPC is also upheld. Conviction of appellant Jagta under Section 376(D) IPC is altered to under Section 376 IPC and he is sentenced to imprisonment for life and fine of Rs. 10,000/-. In default of payment of fine appellant shall undergo one year imprisonment. Conviction and sentence of both the appellants/accused under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act is set aside. Conviction and sentence of appellant-accused Sunder u/s 376 IPC is also set aside. Both the appellants are stated in jail, they shall serve out the remaing sentence.
30. Both the Appeals are partly allowed in above terms.
31. A copy of this order along with lower court record be sent to court concerned forthwith for necessary compliance.
(Raj Beer Singh, J) (Ramesh Sinha, J)
Date: 22.08.2019
A. Tripathi