Bhairo vs State Of U.P.
2011 Latest Caselaw 4382 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 
Capital Criminal Appeal (Jail) No.2531 of 2010
 
Connected with 
 
Capital Reference No.5 of 2010
 

 
Bhairo		......  Appellant
 

 
Versus
 

 
State of U.P.	.......  Opposite Party
 

 
Hon'ble Amar Saran, J.

Hon'ble S.C. Agarwal, J.

(Delivered by Hon'ble S.C. Agarwal)

The appellant Bhairo has been convicted for the offences punishable under sections 376, 302 IPC vide judgment and order dated 17.4.2010 passed by Sessions Judge, Kaushambi in Sessions Trial No.162 of 2008 State Versus Bhairo arising out of crime no.29 of 2008 under sections 376, 302 IPC, P.S. Mohabbatpur Painsa, District Kaushambi. The appellant was sentenced to death and to pay a fine of Rs.10,000/- and in default, to undergo rigorous imprisonment for 2 years under section 302 IPC. He was further sentenced to imprisonment for life and to pay a fine of Rs.10,000/- and in default, to further undergo rigorous imprisonment for 2 years under section 376 IPC.

Learned Sessions Judge, Kaushambi had also sent a reference under section 366 Cr.P.C. for confirmation of the death sentence, which is being disposed of along with the aforesaid appeal.

The incident took place sometime after 7:00 p.m. on 10.3.2008 and before 11.3.2008. The F.I.R. was lodged by Smt. Anita Devi (P.W.1), the mother of the deceased, against unknown persons on 11.3.2008 at 12:30 p.m. at P.S. Mohabbatpur Painsa, District Kaushambi. The deceased is Sangeeta Devi, aged about 6 years, the daughter of the complainant.

The prosecution case, as contained in the F.I.R., is that on 10.3.2008 at about 7:00 p.m., Sangeeta Devi was having bread and butter milk in a katori sitting on the chabutra of one Dayee outside the house of the complainant, but after sometime, she was found missing. A search was made for Sangeeta Devi in the mohalla as well as in the entire village and nearby fields, but she could not be found. On 11.3.2008, when the complainant's side was searching for Sangeeta Devi, the son of Vinod Kumar Srivastava and Shankar Lal Prajapati told the complainant that the dead body of her daughter was lying towards east of the village in the field of Ram Khelawan (P.W.3). The complainant, accompanied by neighbours and villagers, reached the place of occurrence and found the dead body with teeth bite marks on cheek and breast. There was bleeding from mouth, nose and private parts. Thereafter, she gave a written report of the incident exh. ka-1 at the police station.

On the basis of written report, constable Hasan Ali (P.W.5) prepared chick report exh. ka-2 and registered the case under sections 376, 302 IPC in the G.D. at serial no.20 on 11.3.2008 at 12:30 p.m. (copy exh. ka-3). The investigation was commenced by S.S.I. Ravi Shankar Shukla (P.W.6), who went to the spot, prepared site plans exh. ka-4 and exh. ka-5, took samples of blood stained and plain earth from the spot, seized the steel katori of the deceased and prepared memos exh. ka-6 and exh. ka-7. He performed the inquest on the body of the deceased Sangeeta Devi and prepared inquest memo exh. ka-8 and other papers relating to inquest, letters to R.I., C.M.O., photo lash, challan lash, sample seal are exh. ka-9 to exh. ka-13. He sent the dead body for postmortem examination. Further investigation was taken over by Station Officer Incharge Chandra Shekhar Prasad (P.W.7), who interrogated the witnesses. During investigation, the name of appellant Bhairo came to light. The appellant was arrested on 12.3.2008 and his underwear was seized and sealed vide memo exh. ka-14. The investigating officer also sent the seized material to Forensic Science Laboratory for examination and after concluding the investigation, submitted charge sheet (exh. ka-15) against the appellant. He also proved the report of Forensic Science Laboratory (exh. ka-16).

Autopsy on the body of the deceased was performed on 12.3.2008 at 2:30 p.m. by Dr. Ashutosh Pandey (P.W.9) and he proved the postmortem report (exh. ka-17). The death was caused about one and a half day earlier. The age of the deceased was 6 years. Rigor mortis had passed away from the upper portion of the body, but was present in the lower portion. The following antemortem injuries were found on the body of the victim :

1.Contusion 4 x 2 cm. present on left side of face.

2.Contusion 12 x 2 cm. present on the front of neck.

3.Contusion 6 x 3 cm. present on left side of chest.

4.Contusion 4 x 4 cm. present on left side of chest just over the left nipple.

5.Contusion 6 x 3 cm. present on left side of axilla.

6.Contusion 7 x 2 cm. present on right side of chest.

7.Multiple abrasion present all over the chest.

8.Contused swelling 4 x 4 cm. present on back of head.

9.Lacerated wound present on vagina and anus size of about 2 x 2 cm. and clotted blood present.

There was congestion and haematoma in the brain, larynx, trachea and bronchi were deeply congested and hyoid bone was fractured. Both the lungs were congested. About 100 grams semi digested food was present in the stomach. Small and large intestines were half full. Posterior vaginal wall was perforated. Cause of death was asphyxia as a result of throttling.

As per the report of Forensic Science Laboratory, Lucknow (exh. ka-16), blood was found on blood stained earth, smear slide and swab, but the blood stains were found to be disintegrated. Human semen and sperm were found on smear slide, vaginal swab and on the underwear of the accused.

On 21.3.2009, charge under sections 376, 302 IPC was framed against the appellant. The appellant denied the charge and claimed to be tried.

During trial, as many as nine witnesses were examined on behalf of the prosecution. P.W. 1 Anita Devi is the complainant and P.W.2 Godhan is her husband. Both of them are not eyewitnesses nor they are witnesses of any incriminating circumstance. P.W.3 Ram Khelawan had seen the deceased going along with the appellant in the evening at about 7:00 p.m. P.W.4 Prem had seen the appellant Bhairo next morning at about 4:00 a.m. coming from the side of field of Ram Khelawan. P.W.5 Constable Ali Hasan proved the chick report (exh. ka-2) and copy of G.D. Entry (exh. ka-3). P.W.6 S.I. Ravi Shankar Shukla and P.W.7 Chandra Shekhar Prasad are the investigating officers of the case. P.W.8 Bhola Singh had scribed the written report (exh. ka-1) on the dictation of Anita Devi (P.W.1) and he is also a witness of recovery of underwear of the accused (exh. ka-19). P.W.9 Dr. Ashutosh Pandey had performed the autopsy on the dead body.

The entire case depends on the circumstantial evidence and the testimony of Ram Khelawan (P.W.3) and Prem (P.W.4).

Learned Sessions Judge relied upon the testimony of Ram Khelawan (P.W.3) and Prem (P.W.4) and came to the conclusion that it was the appellant Bhairo, who had committed rape and murder of the deceased and convicted and sentenced the appellant as above.

We have heard Sri Vivek Prasad Mathur, learned Amicus Curiae appearing on behalf of the appellant and Sri D.R. Chaudhary, learned Government Advocate and have gone through the entire material available on record very carefully.

Sri Mathur assails the judgment of conviction on the ground that the chain of circumstances was not complete. The evidence of Ram Khelawan (P.W.3) and Prem (P.W.4) was not reliable and did not conclusively prove the involvement of the appellant in the crime. Sri Mathur has taken us through the evidence of all the witnesses to stress that no finding of conviction can be recorded on such shaky evidence. He further submits that in the alternative, if the appellant is found guilty, awarding of death sentence was not justified.

Per contra, Sri Chaudhary, learned Government Advocate submits that P.W.3 Ram Khelawan had seen the appellant taking away the deceased with him on 10.3.2008 and thereafter the victim was never seen alive. In the same night at about 4:00 a.m., the appellant was seen coming from the side of field of Ram Khelawan and P.W.4 Prem had seen blood on his underwear and mud on his legs. He contends that these two incriminating circumstances are sufficient to prove the guilt of the appellant. He further submits that learned trial court has rightly convicted the appellant under sections 376, 302 IPC and rightly awarded imprisonment for life under section 376 IPC and death sentence under section 302 IPC, as a minor girl of 6 years was raped and murdered by the appellant.

The law relating to cases based on circumstantial evidence is well established.

In Tanviben Pankajkumar Divetia Vs. State of Gujarat (1997) 7 SCC 156, the Apex Court held in para 45 as under :

"45. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions."

Keeping the aforesaid principles of law in mind, we have to analyze whether the circumstances relied upon by the prosecution unerroringly proved the involvement of the appellant in the crime.

The prosecution has relied upon the following incriminating circumstances against the appellant :

(i)The appellant was seen on 10.3.2008 at about 7:00 p.m. taking the deceased with him by P.W.3 Ram Khelawan.

(ii)The appellant was seen coming from the side of field of Ram Khelawan on 11.3.2008 at about 4:00 p.m. with blood on his underwear and mud on his legs.

(iii) Body of the deceased was recovered from the field of Ram Khelawan.

As far as the cause of death and the factum of rape and murder are concerned, the same are not controverted by the appellant. It is proved beyond doubt from the evidence of Dr. Ashutosh Pandey (P.W.9) that the deceased was murdered as she died due to asphyxia as a result of throttling. It is also proved beyond doubt that before her death, the unfortunate victim was raped. On the vaginal swab and vaginal smear slide, human semen and sperms were found and posterior vaginal wall was perforated. These facts are sufficient to prove that the victim was raped and thereafter throttled. Now the question remains whether this ghastly act was committed by the appellant ?

As far as the circumstance no. (iii) is concerned, that the dead body was found in the field of Ram Khelawan, the same is clearly established from the testimony of Smt. Anita Devi P.W.1, Godhan P.W.2 and other witnesses including the investigating officers. This fact has not been controverted by learned Amicus Curiae appearing on behalf of the appellant and, therefore, it is established beyond doubt that the dead body was found in the field of Ram Khelawan P.W.3.

As regards circumstance no. (i) regarding last seen of the appellant with the deceased, Ram Khelawan P.W.3 is the sole witness of this circumstance. He stated that in the evening at about 7:00 p.m., he saw Bhairo taking away Sangeeta Devi with him and Sangeeta Devi was holding a steel katori containing bread and butter milk and next day her dead body was found at about 5:00 a.m. in his field. In cross-examination, he stated that the name of his son is Buddan. Bhairo and Buddan are real brother-in-law (Sadu), meaning thereby, their wives are real sisters. He denied the suggestion that his son developed illicit relations with the wife of the appellant and Bhairo turned his wife out of his house and thereafter Bhairo's wife started living with Buddan. He further stated that he met Godhan Pasi (P.W.2) and his wife Anita Devi P.W.1 at about 8:00 a.m. and also met them when the dead body was found in the morning. It is very surprising that when the dead body was found and this witness met the complainant and her husband in the morning, he did not disclose the fact to the complainant and her husband that he had seen the deceased in the company of the appellant on the previous evening at about 7:00 p.m. Had this fact been disclosed by Ram Khelawan P.W.3 to the complainant or her husband, the factum of the deceased having been seen in the company of the appellant would have found mention in the F.I.R. itself, which was lodged at 12:30 p.m. on 11.3.2008. The non-disclosure of factum of last seen by Ram Khelawan P.W.3 to the complainant and her husband in the morning of 11.3.2008, when the dead body of the victim was found in his field, makes his testimony entirely doubtful and unworthy of any credibility. P.W.1 Anita Devi tried to say in her cross-examination that in the night at about 1:00 a.m., Khela Pasi (Ram Khelawan P.W.3) told her that he had seen the appellant taking her daughter. This statement is clearly false. If Ram Khelawan P.W.3 had told her that Bhairo had taken her daughter, there was no reason why she would not mention this fact in the F.I.R. Godhan P.W.2, the father of the deceased, states that he met Ram Khelawan on the third day from the incident. He denied the fact that Ram Khelawan told him before lodging of the F.I.R. that he had seen the victim going with the appellant.

In view of the aforesaid, the statement of Ram Khelawan P.W.3 that he had seen the deceased in the company of the appellant and disclosed this fact in the next morning to the parents of the deceased is nothing but a cock and bull story and the testimony of Ram Khelawan P.W.3 does not inspire confidence. We are very reluctant to act upon such a shaky and unreliable testimony. We are of the firm opinion that Ram Khelawan is a wholly unreliable witness and the circumstance that the deceased was last seen in the company of the appellant is not proved.

Circumstance no. (ii) relied upon by the prosecution is based on the testimony of Prem P.W.4, who states that at about 4:00 a.m. when he was going to ease himself and was passing in front of the house of the appellant, he saw Bhairo coming from the side of field of Ram Khelawan with blood on clothes and mud on his knees and the appellant was very perplexed at the time and dead body was found at about 8 - 8:30 a.m. In cross-examination, he admitted that when the dead body was found at about 8 - 8:30 a.m. in the field of Ram Khelawan, appellant Bhairo was also there, but he did not disclose this fact at that time to any person. There is no corroborating evidence of this fact. It is also noteworthy that no blood stained clothes of the appellant were seized by the police. Only the underwear of the appellant was seized, but no blood was found on the same. Therefore, the statement of P.W.4 Prem that he saw blood on the clothes of the deceased cannot be relied upon.

According to the postmortem report, the death of the victim must have been caused in the evening of 10.3.2008 itself as she must have died one and a half day before the time of postmortem. If the rape and murder of the deceased was committed in the evening, the coming of appellant at 4:00 a.m. from the side of the field of Ram Khelawan, cannot be said to be an incriminating circumstance against him. Even if he was found highly perplexed and terrified, this does not unerringly point towards his guilt. He may be terrified if he had seen the dead body. There may be so many reasons. P.W.4 Prem did not disclose in front of the complainant and the villagers at the time of finding out the dead body that he had seen the appellant coming from the side of field of Ram Khelawan at 4:00 a.m. with blood on his clothes and terror on his face. According to his statement, Bhairo was also present when the dead body was found. If there was any truth in his testimony, he would have disclosed the said fact before the entire village and Bhairo would have been apprehended then and there. His deliberate silence at the time of finding of the dead body speaks volumes against his credibility. We have no hesitation in rejecting his testimony, which is not worthy of any reliance. Thus, the circumstance no. (ii) is also not proved.

When the arguments in the case started and these weaknesses in the prosecution story started coming to surface, learned Government Advocate moved an application on 4.5.2011 for sending the vaginal smear slides, swab and the underwear of the accused for D.N.A. Examination. On this application, learned Government Advocate was directed to find out whether the same articles were available and whether the D.N.A. Test was possible after a lapse of about 3 years. On 19.5.2011, a sealed bundle of material exhibits was produced before the Court and Dr. Archana Tripathi, Assistant Director, Serology, Forensic Science Laboratory, Mahanagar, Lucknow was also present in Court. The Court ordered that the sealed case property be sent to the Laboratory along with a letter of the C.J.M., Kaushambi for D.N.A. Examination and further directed the submission of the report within six weeks. A report dated 8.7.2011 of Forensic Science Laboratory, Mahanagar, Lucknow was filed before the Court with the opinion that D.N.A. was extracted from the underwear allegedly recovered from the accused, but D.N.A. could not be extracted from the smear slide and swab.

Since the D.N.A. could not be developed from the vaginal smear slide and swab, the test proved unfruitful. We unhesitatingly point out that this valuable evidence has been lost due to negligence on the part of investigating officer and the prosecuting agency. For 3 years, no effort were made either by the investigating officer or other senior police officer or prosecution to get the D.N.A. Test at the earliest. If the vaginal swab and smear slide was sent for D.N.A. Test soon after the incident, a definite opinion could have been obtained as to whether the semen and sperms found on the slide and the swab belonged to the appellant or nor, but due to a lapse of 3 years, such valuable piece of evidence has been lost.

In view of the aforesaid, we have come to the conclusion that there is no credible evidence against the appellant to connect him with the ghastly rape and murder of the victim. The statements of Ram Khelawan P.W.3 and Prem P.W.4 do not inspire confidence. Learned Sessions Judge failed to notice that these witnesses kept mum when the dead body was found and the parents of the deceased were present on the scene of crime and even the appellant was present there, but they did not open their mouth.

In our considered opinion, conviction of the appellant under section 376, 302 IPC cannot be sustained and is liable to be set-aside. The scientific evidence has also failed to connect the appellant with the crime. In these circumstances, the appellant is entitled to the benefit of doubt and deserves acquittal.

Appeal is allowed.

The impugned judgment and order dated 17.4.2010 passed by Sessions Judge, Kaushambi in Sessions Trial No.162 of 2008 (State Versus Bhairo) arising out of crime no.29 of 2008 under sections 376, 302 IPC, P.S. Mohabbatpur Painsa, District Kaushambi is set-aside and the appellant Bhairo is acquitted of a charge under sections 376, 302 IPC. The appellant is in jail and be released forthwith.

The Capital Reference is rejected.

A copy of this judgment along with the trial court's record be sent back to Sessions Judge, Kaushambi within a week for compliance. Compliance report be submitted within a month.

Before parting with the case, we are constrained to observe that even in the 21st Century, we are still sticking to Centuries old methods of investigation and have not taken concrete steps for improving investigation techniques. Investigation methods have undergone a sea change all over the world, but these changes have passed us by. The State cannot escape from its responsibility to provide a competent and effective mechanism for investigation of criminal cases on the ground of financial scarcity. No doubt, there is some awareness in the Government circles now and gradually some steps are being taken to improve the criminal justice system, but these steps are too few and too inadequate. We must have Forensic Science Laboratories in each Districts with D.N.A. Development facilities / techniques and Mobile Forensic Squads, a member of which can immediately rush to the scene of crime soon after the incident to collect the various samples, which may give clues regarding identity of the culprits. Unless we keep pace with the times, we are destined to fail. We hope that these words of advise would not go unheeded and the State acts with all promptitude to tone up the investigating agencies.

A copy of this judgment be also sent to Principal Secretary (Home), Government of U.P., Lucknow and Principal Secretary (Judicial) & L.R., Government of U.P., Lucknow for consideration and necessary action at their end.

Office is directed to pay a sum of Rs.5000/- as fees to the Amicus Curiae Sri Vivek Prasad Mathur, Advocate.

Dated : 6th September, 2011.

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