Virendra Badhai vs State Of U.P.
2014 Latest Caselaw 9265 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							 A.F.R.
 
							(Reserved)			
 
Court No. - 45
 

 
Case :- CRIMINAL APPEAL No. - 297 of 2006.
 

 
Appellant :- Virendra Badhai.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.B. Kochhar, Dr Abida Syeed.
 
Counsel for Respondent :- Govt. Advocate.
 

 
Hon'ble Devendra Pratap Singh,J.

Hon'ble Kalimullah Khan,J.

(Delivered by Hon'ble Kalimullah Khan, J.)

This Criminal Appeal under Section 374 (2) Cr.P.C. has been preferred by accused Virendra Badhai, S/o Lal Chandra, R/o Village Pachkhora, Police Station Kandharapur, District Azamgarh against State of U.P. challenging the impugned judgment and order dated 24.11.2005 passed by the learned Additional Sessions Judge, Court No. 4, Azamgarh in Sessions Trial No. 566 of 2001 whereby the appellant has been convicted under Section 302 I.P.C. and sentenced for life imprisonment with a fine of Rs.10,000/- and in default of payment of fine he is to further undergo three years imprisonment and under Section 376 I.P.C. to undergo life imprisonment with a fine of Rs.10,000/- and in default of payment of fine he is to further undergo rigorous imprisonment for three years.

The impugned judgment and order has been challenged on the ground that it is against the weight of evidence on record; the conviction and sentence awarded to accused is bad in law. Findings of conviction is perverse and the sentence awarded under Section 376 I.P.C. is too severe; the prosecution has miserably failed to prove the charges, framed against the accused, beyond all reasonable doubt.

The prosecution case as embedded in the F.I.R. is that first informant Laxmi Shankar Rai is the real uncle of victim Manisha @ Dangar daughter of Shiv Shankar Rai. She was aged about 12 years and was studying in class II. She was neither mad nor lunatic. However, she was of low I.Q. She used to go to school every day on her own.

It was a Holi festival on 20.03.2000. She disappeared since 2:00 p.m. that day. The first informant and others were in search of her. They found her dead body lying in the wheat field of Sri Haribans Rai in their village Manduri. The informant alongwith his family members including his daughter-in-law Smt. Manju Singh, the star witness (P.W. 2) reached near the dead body on 22.03.2000 at about 9:00 a.m. Several other persons of the villages had also collected there. A five rupee currency note was lying besides the dead body. The said note, according to the informant, had been given by aforesaid Manju Singh on 20.03.2000 at 13:30 hours to Virendra Badhai (accused), son of Lal Chandra, R/o Village Pachkhora, Police Station Kandharapur, District Azamgarh as his 'Teohari' of festival. Looking to the condition of the dead body and the said currency note of Rs.5, the first informant smelled that accused Virendra Badhai had committed rape upon his niece and committed her murder by strangulation. Leaving the dead body at spot, he lodged the F.I.R. at P.S. Kandharpur, District Azamgarh.

On the basis of the aforesaid written report of the informant Sri Laxmi Shankar Rai, chik report was drawn and the case was registered in the General Diary dated 22.03.2000 at 10:15 a.m. vide crime no. 63 of 2000 under Sections 376, 302 I.P.C. against sole accused Virendra Badhai.

According to prosecution, inquest was prepared at spot and a pair of slipper, a single crosiya of iron and a five rupee currency note stained with red colour no.054873253 lying towards the left hand of the dead body near her right hand were recovered. Recovery memo was prepared. After preparing the inquest and other relevant papers and observing necessary formalities, the dead body was sealed and sent to mortuary for post-mortem examination.

The dead body of the deceased was subjected to post-mortem on 22.03.2000 at 05:00 p.m. The age of the deceased was found to be about 12 years and the duration of death was found about two days. Following anti-mortem injuries were noticed at her body:-

(i) A multiple contusion in an area of 13 cm x 5 cm over front of neck, 5 cm below left ear pinna and 4 cm below right ear pinna. On cut at places ecchymoses present.

(ii) Abrasion and clotted blood present and labia mejora found lacerated in vagina. One frock was handed over to constable concerned in sealed cloth bundle.

The cause of death was asphyxia due to strangulation.

During the course of investigation, kachhi, skirt lower of the deceased and pant and underwear of accused were taken in police custody vide separate recovery memos. They were sent to Vidhi Vigyan Prayogshala, Luknow, U.P. under the orders of the learned C.J.M., Azamgarh to find out the evidence of rape.

After collecting the evidence, recording the statements of witnesses, preparing the site plan and being satisfied with the investigation I.O. submitted chargesheet against accused before the court of learned Magistrate. After complying the provisions contained under Section 207 Cr.P.C. the case was committed to the court of Sessions for trial.

Under the orders of learned Sessions Judge, the case was transferred to the learned Additional Sessions Judge/F.T.C.-I, Azamgarh who, having heard learned counsel for the parties and on perusal of the evidence collected by I.O. framed the charge against the accused appellant Virendra under Sections 376 and 302 I.P.C.

Accused denied the charge and claimed his trial.

In order to prove its case prosecution examined as much as seven witnesses in all.

Laxmi Shankar Rai (P.W.1) is the first informant. He has proved his written report Exhibit Ka-1. However, he is not a witness of the incident. He has deposed that Smt. Manju Singh is his cousin daughter-in-law who lives separately and he dictated the F.I.R. in pursuance of the information rendered to him by her. He has further deposed that 'Manisha Mand Buddhi Ki this Pagal nahi thi. Wah ghar se school aksar chali jati thi. Itani mand buddhi ki nahi thi ki school na ja sake'. Apart from it he has deposed that the deceased had disappeared on 20.03.2000 at about 2:00 p.m. on the day of Holi festival. He was in search of her. Her dead body was found on 22.03.2000 at 8:00-9:00 a.m. in the wheat field of Haribans Rai. Five rupee note stained with red colour was lying there besides her body and at first glance his daughter-in-law Smt. Manju Singh (P.W.2) disclosed that the said note was handed over by her to accused Virendra Badhai as tips of Holi on 22.03.2000 at about 01:30 p.m. Looking to the condition of the dead body it appeared to him that deceased was subjected to rape followed by her murder by strangulation and then mentioning all those aforesaid facts he prepared the written report and lodged it to the police station.

Smt. Manju Singh (P.W.2) aged about 45 years wife of Surya Narayan Singh is a star witness of this case. She is cousin daughter-in-law of first informant. She has deposed that two and half years ago on the day of Holi festival at about 1:30 p.m. accused Virendra Badhai son of Lal Chandra came to her house and demanded money on the occasion of Holi. Deceased was also present when accused demanded the money. She claims to have given a five rupee note stained with red colour to Virendra Badhai. Apart from it she gave to both of them i.e. to Virendra Badhai as well as to the deceased Gojhia to eat. Thereafter, she went inside her house whereas Virendra Badhai and the deceased both went simultaneously out of her house. 2-3 hours thereafter, she came to know that deceased was missing and she was not traceable. All the members of the family were making search for her. On the third day of the Holi at about 09:00-10:00 a.m. the dead body was found lying in the field of Haribans Rai. On the information of aforesaid fact she went to spot and saw that the said five rupee note stained with red colour which was handed over by her to Virendra Badhai was lying there besides the dead body. She disclosed the aforesaid fact to all present there. Looking to the dead body it transpired that the deceased was subjected to rape and thereafter, her murder was committed by strangulation. She claims to have disclosed to first informant the aforesaid fact of her handing over the aforesaid five rupee note to Virendra Badhai on the day of Holi festival. On its basis the written report was prepared which was handed over to the police station by his Chachia Sasur, first informant. Thereafter, officer-in-charge, P.S. Kandhrapur came at spot who got the inquest of the dead body prepared at spot whereupon she had put her signature. Kachhi and skirt of the deceased were taken by the police into its custody which was sealed in her presence. The aforesaid kachhi and skirt were blood stained. Daroga Ji took in the police custody the chappal of the deceased, crocia and aforesaid five rupee note and sealed them in different bundles at spot. Recovery memos were prepared containing her signature. She was interrogated by police. Recovery memo, prepared for taking into police custody the blood stained skirt has been proved by this witness, Exhibit Ka-2. Recovery memo of crosiya and five rupee note were produced before the trial court and all those three things were proved by this witness as material Exhibits 1, 2 & 3 respectively.

Rama Shankar Rai (P.W. 3) aged about 62 years is a witness of last seen. He is related to the first informant. He has deposed that for about 2-3 days prior to the Holi festival he was not feeling easy and was bed ridden. On the day of Holi festival deceased disappeared and she was not traceable. On the third day from Holi festival the dead body of deceased was noticed lying in the field. He deposed that on the day of Holi festival he had seen accused Virendra Badhai going towards west of his house and the deceased was also following him. At that time he was sitting at his door.

Dr. Mahendra Kumar Gupta (P.W.4) has subjected the dead body of the deceased to post-mortem examination on 22.03.2000 at about 05:00 p.m., he had prepared the autopsy and proved it as Exhibit Ka-4.

Dr. J.P. Gupta (P.W. 5), Senior Pathologist in District Hospital, Azamgarh has proved the injuries sustained by accused Virendra Badhai during his arrest by public after lodging the F.I.R. on 22.03.2000 from his house. He was subjected to medical examination on the same day at 6:05 p.m. Following injuries were found at his person:-

(i). Contusion with swelling 3 cm x 2 cm on the left side of forehead 2 cm above on left eyebrow.

(ii) Contusion with swelling 4 cm x 2 cm on the right side of the forehead 1.5 cm above from right eyebrow.

(iii) Contusion with swelling 8 cm x 4 cm on the left eye and face redness on the left eye front.

(iv) Contusion with swelling 7 cm x 3.5 cm on its right eye and face with redness on the right eye front.

(v) Abrasion contusion 10 cm x 6 cm on the back on part of right arm adjacent and above the right elbow.

(vi) Contusion with swelling 14 cm x 5 cm on the back a part of right forearm 5 cm below from the right elbow.

(vii) Abrasion contusion 6 cm x 5 cm on part of left elbow.

(viii) Multiple abrasion contusion five in number on the area of 18 cm x 10 cm on the right side of back, 10 cm below from right shoulder small 1.5 cm length 8 cm x 2 cm.

(ix) Contusion with swelling 5 cm x 4 cm on the front as part of right leg 14 cm below from right knee.

(x) Contusion with swelling 10 cm x 5 cm on the part of left knee.

Injury no. 1 and 2 were kept under observation. X-ray advised. Rest of the injuries were found simple in nature caused by blunt object and fresh in duration. He has prepared the injury report in his own hand writing and signature and proved it as Exhibit Ka-5. However, he had not noticed any injury on his private part. In his opinion the aforesaid injuries might have been sustained by accused on 22.03.2000 at about 02:30 p.m.

Sri Narendra Kumar Bhatia (P.W.6) is the I.O. and she has proved the investigation.

Brij Nath, Incharge, Sadar, District Malkhana, Azamgarh (P.W.7) has deposed that he has prepared the chik report Exhibit Ka-7 and G.D. entry regarding registration of case Exhibit Ka-8 as Head Constable, P.S. Kandhrapur on 22.03.2000. He deposed that on the same day, Virendra Badhai accused was apprehended by public who brought him to the police station. Chaddhi and pant of the accused was taken into police custody and the recovery memo was prepared by him under his hand writing and signature which he has proved as Exhibit Ka-15 and the entry thereof has been made in the General Diary vide Rapat No. 19 at 15:15 p.m. in his own hand writing and signature. The true copy thereof has been proved by him as Exhibit Ka-17.

The witness has deposed that he had entered in the G.D. dated 22.03.2000 the injuries found on the person of accused Virendra Badhai. The public had badly beaten him and there were number of injuries at his person.

Accused Virendra Badhai was examined under Section 313 Cr.P.C. He denied the prosecution allegation and challenged the evidence. He attributed his false implication due to enmity with informant. He stated that he and his father had worked and prepared wooden door of informant. Ten to fifteen thousands rupees as labour charge was due on the informant and on demand for payment he has been falsely implicated in this case.

Accused has examined his father Lal Chandra (D.W.1), aged about 70 years in his defence in support of his defence case. He has deposed the same.

Having heard learned counsel for the parties and after making appraisal of evidence vide impugned judgment and order dated 24.11.2005 learned trial court has held accused appellant Virendra Badhai guilty under Sections 376 and 302 I.P.C. and sentenced him as aforesaid.

Feeling aggrieved this Criminal Appeal has been preferred.

We have heard Dr Abida Syeed, Amicus Curiae for the appellant and learned A.G.A. for the State. Perused the record.

Learned counsel for the appellant has submitted that the finding of conviction recorded by the learned trial court against the appellant is against the weight of evidence and, therefore, it is perverse which deserves to be set aside. He has further submitted that the material evidence occurred in the testimony of star witness Smt. Manju Singh (P.W.2) has been ignored by the trial court and he did not make the appraisal of evidence in accordance with the settled principle of appreciations of evidence which has caused injustice. Pointing out such evidence on record he has submitted that had these admissible evidence elicited in cross-examination of P.W. 2 been taken into consideration the finding of conviction against the appellant could not have been recorded. Learned trial court has not even mentioned those evidence in the impugned judgment. He has further submitted that the mandatory provisions contained under Section 313 Cr.P.C. has not been complied with by the trial court and the alleged incriminating evidence relied on by him which have been made the basis of conviction were not put to accused in his statement under Section 313 Cr.P.C. to enable him to extend explanation thereof. Hence, those evidence which were not put to him under Section 313 Cr.P.C. could not have been made the basis of his conviction in the impugned judgment. The aforesaid legal error occurred during trial has rendered the impugned judgment and order bad in law which deserves to be set aside. Lastly, he submitted that fair trial has not been ensured in this matter and prosecution has not been able to prove its case beyond all reasonable doubt, therefore, appellant deserves his acquittal.

Per contra, learned A.G.A. has submitted that the findings of conviction recorded by learned trial court is based on the evidence on record and the evidence which were not considered by the learned trial court are immaterial inasmuch as it has occurred during cross-examination of the prosecution witness Smt. Manju Singh (P.W.2). Cross-examiners are expert advocates and by dint of their advocacy they often elicit certain facts from the mouth of witnesses which never existed in reality. According to him, the impugned judgment and order is based on the admissible evidence adduced by the prosecution and the reason of false implication pointed out by accused and his father examined as D.W. 1 has been proved to be false, therefore, no interference is called for by this Appellate Court.

Admittedly, it is not a case of direct evidence rather it is a case based purely on circumstantial evidence. The perusal of the impugned judgment and order reveals that learned trial court has recorded the finding of conviction of appellant basically on following grounds:-

(i) That accused was Badhai by caste who was pre-acquainted with the family of the informant.

(ii) That date of incident was a festival of Holi. Accused had come to the house of Smt. Manju Singh (P.W.2) who had given him a five rupee note having a mark of red colour thereon and the said coloured note was recovered from the place of incident which finds mention in the F.I.R. lodged by first informant.

(iii) That there is evidence of last seen inasmuch as prosecution witness Rama Shankar Rai (P.W.3) had seen the accused going towards west of his house at about 2:30 p.m. and deceased was also following him and since then she was missing.

(iv) That pant of accused contained blood. Kachhi and lower skirt of the deceased were also blood stained. Apart from it the underwear of accused contained spermatozoa. Likewise, Kachhi and lower skirt of the deceased also contained spermatozoa.

(v) That accused had not explained the presence of spermatozoa and the blood found by Vidhi Vigyan Prayogshala on his aforesaid clothes.

(vi) That prosecution witnesses 1, 2 & 3 examined on facts are natural, reliable and independent witnesses and there is no contradiction in their depositions who had no enmity with accused.

(vii) That there is no delay in lodging the F.I.R.

(viii) That non-lodging of Gumsudagi Report soon after the disappearance of the deceased has been properly explained.

The law for appreciation of circumstantial evidence are now well settled.

In Hanumant Govind Nargundkar Vs. State of M.P. AIR 1952 (SC) 343, the Hon'ble Supreme Court observed, "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

In Padala Veera Vs. State of A.P., 1991 SCC (Criminal) 407, the Hon'ble Supreme Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

In Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 SCC (Criminal) 487, it was held by Hon'ble Supreme Court " the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacunae in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established.

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explanable on any other hypothesis except that the accused is guilty'

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved and; and

(v) 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 State of U.P. Vs. Ashok Kumar Srivastava, 1992 SCC (Criminal) 241, it was pointed out by the Hon'ble Supreme Court 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 guilt.

In Ramreddy Rajesh Khanna Reddy Vs. State of A.P., (2006) 3 SCC (Criminal) 512, the Hon'ble Supreme Court while reiterating the settled legal position, observed, "It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."

The aforesaid legal position settled in its earlier judgments by the Honb'le Supreme Court, has been reiterated in Sattatiya alias Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 1 Supreme Court Cases (Criminal) 733 and also in case law Krishnan Vs. State represented by Inspector of Police, 2009 (64) ACC 228.

The law is settled on the point by the Apex Court of India that the duty of Sessions Judge to examine the accused is not discharged by merely reading over the questions put to the accused and by asking him whether he has to say anything about them. It is also not a sufficient compliance of Section 313 Cr.P.C. to ask the accused generally that, having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the Section is to afford the accused a fair opportunity of explaining circumstances which appear against him and the questions must be fair and must be coached in a form which an ignorant or illiterate person may be able to appreciate and understand. An accused should be properly examined under this section and, if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and should not be slurred over. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. Rolling up several distinct matters of evidence in a single question by the Sessions Judge is also irregular.

In Anthoney D 'Souza Vs. State of Karnataka, AIR 2003, Supreme Court, 258 it was held that where the evidence against an accused consists of circumstantial evidence only, it is of the utmost importance that the various circumstances which clinch the issue against him should be put to him and an explanation called for from him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. However, a circumstance not appearing in evidence against the accused cannot be put to him in his examination under Section 313. Where the circumstances appearing in evidence, for example production of blood stained weapons, by the accused and the attachment of blood stained clothes from them, person containing blood of the same group as that of the deceased are not put to the accused in examination under Section 313, the same cannot be used for recording the conviction of the accused. Circumstance not put to the accused in examination under Section 313 cannot be taken into consideration. In case of circumstantial evidence where an accused offers false answer in his examination under Section 313, Cr.P.C. against the established facts, that can be counted as providing a missing link of completing the chain.

The act of examination of accused under Section 313 Cr.P.C. is solemn act of a trial and should not be treated as an empty formality. The object of Section 313 Cr.P.C., is to establish a direct dialogue between the Court and the accused. If a point in evidence is important against the accused, and conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. The purpose of examination is to bring the substance of accusation to the notice of the accused. Though the questioning under Clause (1) (a) is discretionary, the questioning under Clause (1) (b) is mandatory, the object being to afford an opportunity. Section 313 Cr.P.C. embodies fundamental principle of 'Audi Alteram Partem'. The provisionsof the section are mandatory and they cast a duty on the Court to afford an opportunity to the accused to explain the incriminating material against him. The examination of the accused under Section 313 Cr.P.C., is not a mere formality, the questions put and the answers given have great use. The accused must be given opportunity to explain each and every circumstance appearing in evidence against him. Section 313 prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution's evidence. That opportunity is a valuable one and cannot be ignored. This section gives the power to the court to examine the accused at any stage. The purpose for which the examination has to be done under the section is in order to enable the accused personally to explain any circumstances appearing against him in the evidence. The word 'personally' would show that this is in addition to what his counsel would have already done by way of cross-examination.

Hon'ble Supreme Court in Rohtash Kumar Vs. State of Haryana, AIR 2013, SC (Criminal) 1544 held as under:-

"Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which has come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances".

In Munish Mabar Vs. State of Haryana, AIR 2013, SC 912 it was held that "it is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances".

In Para 13 of State of U.P. Vs. Mohd. Iqram and another, AIR 2011, Supreme Court, 2296, the Division Bench of the Hon'ble Supreme Court held as under:-

"No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration".

Keeping in mind the aforesaid legal position we have delved into the evidence available on record and perused the findings of conviction recorded by learned trial court and came to the conclusion that impugned judgment and order is bad on law and facts and, therefore, it deserves to be set aside.

Learned trial court has relied on last seen evidence given by Shri Rama Shankar Rai (P.W.3). This witness is admittedly the cousin of first informant, Laxmi Shankar Rai, therefore, no doubt, he is interested in the informant. He is deeply related to the star witness, Smt. Manju Singh (P.W.2). The witness has admitted that Smt. Manju Singh is the wife of the son of his cousin. This witness has deposed that he was having ill-health for the last 2 or 3 days prior to the date of the incident. According to him, he was sitting in his 'baithaka' and then he saw accused Virendra at 2:30-3:00 p.m. going from his house towards the house of Smt. Manju Singh situated towards the west of his house. In his examination-in-chief, he has deposed that the deceased was also going towards west behind accused Virendra but in cross-examination, he did not support his aforesaid evidence and deposed that he had seen Virendra going towards the house of Smt. Manju Singh at 2:30-3:00 p.m. but he did not know what happened thereafter. In his cross-examination, he has further deposed that the aforesaid fact of his seeing Virendra going towards the house of Smt. Manju Singh is not being deposed for the first time in the court rather he has told it to the Investigating Officer as well but he could assign no reason, if the I.O. has not written the aforesaid fact in his statement recorded u/s 161 Cr.P.C. The perusal of his deposition shows that he was feeling unwell on the day of the incident, the holi festival. He was sleeping in his house. Virendra has come to his house to take his 'Teuhari' but nobody had given him 'Teuhari' at his house because the festivity of holi festival was not being celebrated at his house on account of the death of the father of first informant. The father of Laxmi Shankar Rai was his elder grand-father. The witness has further deposed that when no 'Teuhari' was given to accused Virendra at his house, he went to the house of Manju Singh where he got 'Teuhari'. This fact was told to him by his son Ashish Kumar Rai but again he said that when he woke up from sleep, nobody told him that Smt. Manju Singh had given 'Teuhari' to accused Virendra. When he woke up even then he was not feeling well. In the evening, his wife has told him that no 'Teuhari' was given from his house to accused Virendra. He has admitted that when he heard that 'deceased' is missing even then he did not disclose the fact that he had seen the deceased going behind accused Virendra on the day of the holi festival. When the dead body of the deceased was recovered then he gathered that accused Virendra had committed rape on the deceased and thereafter murdered her.

The non-disclosure of this fact to his family members and pattidars including the first informant and others for about 2 days till recovery of the dead body tells heavily against him especially when he had come to know the factum of disappearance or missing of the girl since 2:30-3:00 p.m. on the day of the holi festival and the entire family was in search of her. The natural conduct of this witness would have been to disclose, soon after disappearance of the deceased, that he had last seen her in the company of accused. The aforesaid non-disclosure renders his evidence of last seen doubtful. Moreover, there appears substance in the contention of learned counsel for the appellant that there is contradiction in his deposition in as much as in his examination-in-chief, he says that he was sitting in his varandah when he saw accused followed by deceased going towards west of his house where the house of Manju Singh is situated but in cross-examination, the witness has left the theory of his sitting in his baithaka and started to depose that on account of his ill-health, he was sleeping in his house, and therefore, he could not know personally as to whether or not Virendra was given 'Teuhari' at his house or Manju Singh gave 'Teuhari' to him. He could know all these facts when he woke up from his sleep. Apart from it, his testimony of last seen is uncorroborated by evidence of any other witness except the evidence of Smt. Manju Singh (P.W.2) who has deposed that when he gave five rupee note stained with red colour to accused Virendra at her house as 'Teuhari' of holi festival, she gave gujhiya to him as well as to the deceased who was also standing there at her house and thereafter the witness went inside her house and deceased as well as accused both went out of her house.

There appears substance in the contention of learned counsel for the appellant that this witness does not claim that accused Virendra and deceased both went out of her house side by side in her presence before she left to go inside her house. Therefore, her evidence that accused Virendra and deceased both went in the company of each other from her house does not appear to be reliable and admissible in evidence. The possibility of such statement occurring from the mouth of this witness based on conjecture and surmises, imagination and speculation cannot be ruled out. Therefore, the aforesaid deposition of Smt. Manju Singh (P.W.2) being not reliable cannot corroborate the alleged last seen evidence of P.W.3.

Moreover, at the place where deceased and accused were seen side by side is not unnatural because it is an abadi land. Smt. Manju Singh is the relative of the deceased, therefore, her presence at the house of Smt. Manju Singh where accused Virendra Badhai had gone to take his 'Teuhari' and was seen there is not improbable. The house of Smt. Manju Singh is situated towards the west of the house of P.W.3 and if P.W.3 observes that accused Virendra Badhai was going towards the house of Manju Singh and the deceased was following him, even then by itself the aforesaid fact cannot be said to be the incriminating circumstance by itself. There is no evidence on record to show that anybody has seen deceased in the company of accused Virendra Badhai going towards the scene of incident which is wheat crop field. Neither Manju Singh nor Rama Shankar Rai have deposed that they ever saw deceased in the company of accused Virendra going towards the scene of the incident.

We are of the firm opinion that the evidence given by Sri Rama Shankar Rai (P.W.3) cannot be termed to be last seen evidence because accused and deceased both were seen alive subsequntly at the house of Sri Manjoo Singh (P.W.2) after they were seen by P.W.3 at his door. In the aforesaid scenario of fact, we are not inclined to believe that alleged last seen evidence adduced by prosecution is sufficient to fasten the guilt with the head of accused Virendra especially when the aforesaid evidence was never put to the accused in his statement recorded u/s 313 Cr.P.C. to enable him to explain the same. Therefore, this piece of evidence of last seen could not have been made the basis of conviction. Since learned trial court did not appreciate the evidence of last seen adduced on record with analytical approach and marshaling of facts and judicial approach in making appraisal of the said evidence is lacking in his finding, therefore, the result arrived at by him to rely on the last seen evidence has rendered miscarriage of justice.

Likewise, there appears substance in the contention of learned counsel for the appellant that the fact which weighed much, as it appears, to the learned trial court to believe the prosecution story as gospel truth is that he took it for granted that it has been mentioned in the FIR that the five rupee note recovered from spot was red colour stained. The perusal of the FIR shows that no such averment has been made in the FIR that the five rupee note allegedly recovered from spot was stained with red colour. In fact, this is the prime allegation which persuaded the mind of the learned trial court, as it appears, that he took it for granted that this red colour stained recovered five rupee note was a direct and sufficient clue to the mind of Smt. Manju Singh to connect accused Virendra with the alleged crime. The FIR does not contain that Smt. Manjoo Singh (P.W.2) had disclosed the informant that the currency note of Rs.5 found at spot was given by her to accused Virendra on the day of Holi Festival. Since the aforesaid facts of the presence of red colour on the alleged recovered currency note and its handing over to accused by Manjoo Singh (P.W.2) on the day of Holi Festival are missing in the FIR, therefore, the very basis of the finding of conviction is smashed and naturally the finding of conviction based on aforesaid facts and circumstances is improper.

Apart from it, the case of the prosecution is that the inquest on the dead-body was prepared in the wheat field of Hari Bansh Rai at spot where dead body was found lying. The five rupee note was recovered from there by Narendra Kaur Bhatia, S.O. (P.W.5) and the recovery memo thereof was prepared at spot. The kachhi and lower skirt of the deceased was recovered from her body at spot and the recovery memo was prepared at spot. I.O., after registration of the FIR at police station, proceeded to spot where aforesaid formalities were observed. The said kachhi and lower skirt contained spermatozoa and human semen. It also contained human blood. Smt. Manju Singh is a witness of recovery of all those things which were made at spot, according to prosecution case. In fact, she is the star witness and the entire finding of conviction recorded by learned trial court revolves around her deposition. There is no two opinion that the law does not require quantity of evidence rather it requires the quality of evidence. The solitary testimony of Smt. Manju Singh is sufficient to hold the conviction of accused provided it is reliable and this witness comes within the category of a wholly reliable witness. But unfortunately, this lady witness does not appear to be a wholly reliable witness in view of the fact that she had clearly and categorically admitted in her depositions, when she was tested on the anvil of cross-examination, that she took the dead body to the police station and handed it over to police at the police station who took it into police custody and kept the dead body in the police station. Not only this, she claims that in her presence, the 'likha parhi' was made in the police station and the inquest on the body of the deceased was prepared in the police station and the five rupee note was also handed over to Mahila police. 50 to 100 people were there with her in the police station. Daroga ji got the signatures of two persons in the police station and both those people belonged to her sasural, therefore, she was not pre-acquainted with them. However, she deposed that all the papers which were prepared at the police station contained her signatures which was obtained from her in the police station itself. However, she has also deposed in the same breath that some of her signatures were obtained at the field as well on some papers but she is unaware of the contents written therein at about 09:00 to 10:00 a.m. on the said date. She claims to have met with Daroga ji at police station and deposed that the FIR was prepared at her dictation. She dictated to Daroga ji, who prepared the report in the police station. At that time, there was no Mahila constable rather Mahila Daroga herself was available there. She refused to accept the suggestion that she has not gone to the police station and she was never interrogated by the police at the police station. She further deposed in the cross-examination that kachhi and lower skirt of the deceased was sealed at the police station in her presence. Recovery memo thereof was prepared there in the police station and her signature was obtained on the recovery memo thereof. Even the recovery of the chappal (sleeper) and five rupee note was also prepared in the police station whereupon her signature was obtained in the police station. On how many papers her signatures were obtained, she could not tell as, according to her, she has not read the same. She claims to remain in the police station for an hour where likah parhi continued at the police station throughout her aforesaid stay there. Thereafter, she claims to have left the police station.

In view of the aforesaid deposition fetched out from her mouth during her cross-examination the allegation of the prosecution and the evidence of this lady witness adduced belies her examination-in-chief so far as it distinctly relates to the recovery of five rupee note from spot; preparation of the inquest on the body at spot and the recovery of the kachhi and lower skirt of the deceased from her body on spot and the preparation of the recovery memos thereof at spot.

In the entire judgment, the learned trial court has not mentioned the aforesaid fact occurred during the cross-examination of this star witness (P.W.2) and ignored all this material and important evidence from his judicial consideration which has resulted the trial into an unfair trial which led him to reach at a wrong finding of conviction. The term 'evidence' includes both 'examination-in-chief' as well as 'cross-examination'. In fact, cross-examination is a sword which tests the veracity of the examination- in-chief and we fail to understand as to why the learned trial Judge could not appreciate the aforesaid legal position on account of which he erred in holding that prosecution has been able to prove its case beyond all reasonable doubt.

Even apart from the aforesaid factual and legal aspects of the matter as well as non-disclosure of this lady for the entire two days in between the date and time of disappearance and the date and time of recovery of the dead body of the deceased about the alleged fact that she had given accused Virendra five rupee note having mark of red colour; gujhiya to him and also to the deceased and their leaving her house by accused and deceased simultaneously renders the veracity of her deposition doubtful especially in view of the fact that the family members, pattidars and all concern including herself were in continuous search for the deceased during the aforesaid period. The learned trial court appears to have ignored the aforesaid material aspect of the matter.

It is a settled proposition of law that the incriminating circumstances occurred against accused as evidence during trial must be put to the accused enabling him to explain and if the alleged incriminating circumstance is not put to him in his statement u/s 313 Cr.P.C. that evidence cannot be made the basis of his conviction. In this case, neither the evidence to the effect that Smt. Manju Singh (P.W.2) had given to accused a five rupee note contained with red colour nor the evidence that the said "red colour" five rupee note was recovered at spot near the dead body were put to him in his statement recovered u/s 313 Cr.P.C. Likewise, material evidence, allegedly connecting accused Virendra to the alleged crime of rape and murder of the deceased, to the effect that kachhi and lower skirt of the deceased girl and also the underwear of the accused contained spermatozoa and human semen and the aforesaid kachhi and lower skirt of the deceased and the pant of accused contained human blood had also not been put to accused to apprise him these incriminating circumstance occurred against him during the course of trial and to give him an opportunity to explain the same, therefore, according to the legal position, none of the aforesaid evidence could have been made the basis of his conviction for the offences he was charged but still learned trial court relied on the aforesaid incriminating evidence and recorded the finding of conviction which is bad in law and deserves to be set aside.

In fact, none of the evidence or incriminating circumstance occurred in the depositions of Laxmi Shankar Rai (P.W.1), Smt. Manju Singh (P.W.2) and Sri Rama Shankar Rai (P.W.3) relied on by learned trial court has been put to accused u/s 313 Cr.P.C. rather in question no.6 of his statement recorded u/s 313 Cr.P.C., he was asked that he has heard the evidence of informant Laxmi Shankar Rai (P.W.1), Smt. Manju Singh (P.W.2) and Rama Shankar Rai (P.W.3) why these witnesses are deposing against him? Accused had assigned the reason that they are depositing against him on account of 'enmity'. That is not the way of putting the evidence or incriminating circumstance occurred against accused Virendra during trial. Therefore, it is hereby concluded that no substantive evidence whatsoever has been put to accused in his statement recorded u/s 313 Cr.P.C. to provide him an opportunity to explain the same, therefore, the aforesaid substantive evidence could not have been made the basis of conviction of accused.

The impugned judgment and order dated 24.11.2005, deserves to be set aside and the accused is entitled to his acquittal in the charges framed against him.

In the result Criminal Appeal is allowed. Impugned judgment and order dated 24.11.2005 is hereby set aside.

Accused Virendra Badhai is acquitted from the charges punishable under Sections 302 and 376 I.P.C. He is in jail. Let he be released forthwith unless wanted in some other case. Material Exhibits be disposed of in case no appeal is preferred agaist the present judgment. Record be sent back to the court below to ensure the compliance of the order.

Order Date:27.11.2014

m.a./S.Sharma