Santosh Kumar Alias Gudda vs State Of U.P.
2015 Latest Caselaw 5638 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
CAPITAL CASE NO. - 1819 of 2014
 

 
Santosh Kumar alias Gudda.....................................................Appellant
 

 
Versus
 

 
 State Of U.P. ................................................Respondent
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Naheed Ara Moonis,J.

(Judgment delivered by Hon'ble B.K.Narayana,J.)

Heard Sri V.K.Sharma, Advocate assisted by Sri Kuldeep Singh, learned counsel for the appellant, Sri Akhilesh Singh, Government Advocate, Sri Narendra Kumar Singh, A.G.A., Sri J.K.Upadhyay, A.G.A., Sri I.P.Srivatava, A.G.A. and Sri Irfan Chaudhary, learned AGA for the State.

This criminal appeal has been preferred by Santosh Kumar alias Gudda against the judgement dated 11.04.2014 and order dated 15.04.2015 passed by learned Sessions Judge, Mainpuri, in S.T. No. 22 of 2012. State Vs. Santosh Kumar Singh alias Gudda convicting him under Sections 376 (2)(f) (old), 302 and 201 IPC and sentencing him to be hanged by neck till his death under Section 302 IPC imprisonment for life and fine of Rs. 40,000/- and in default of payment of fine further imprisonment of one year under Section 376(2)(f) IPC (old), from the fine imposed upon the appellant Rs. 30,000/- was directed to be paid to the victim's father as compensation and seven years rigorous imprisonment and a fine of Rs. 5000/- and in default of payment of fine further imprisonment of six months under Section 201 IPC. All the sentences were directed to run concurrently.

Reference made by the learned Sessions Judge to this Court for confirmation of death sentence awarded by him against the appellant vide his letter dated 18.04.2014 and registered as Reference No. 04 of 2014 was connected with this appeal by order dated 01.05.2015 passed by this Court is also being considered along with this capital case.

Prosecution case in brief is that complainant-Vinod Kumar son of Sri Pratap Singh, r/o Ladpura Kutukpur Nasirpur, lodged a written report at P.S.Karhal, District Mainpuri on 26.04.2011 at 13.10 hours (1.10 P.M.) alleging therein that his niece Km. Radha aged about 5 years daugher of Pramod Kumar had gone to the house of one Ramveer Singh to participate in the Tilak Ceremony of his son along with her mother. When she did not return from there, the family members made an extensive search for her but they did not find her. On the next day at about 12.00 noon, Satya Veer son of Ramwshwar Dayal found her dead body lying in a drain covered with a bundle of wheat. Thereafter her dead body was brought to the house of the informant. Tooth bite injuries on her face and several injuries on her private parts were noticed from which blood was oozing out and also from her nostrils and it appeared that someone had murdered her after committing rape with her. On the basis of the aforesaid written report check FIR (Ex. Ka-4) was prepared and case at crime no. 275 of 2011 under Section 376 and 302 IPC was registered at P.S. Karhal against unknown persons and entry thereof was made into G.D. at serial no. 22 on 26.04.2011 carbon copy of which is on record as Ex. Ka-5.

Initially the case was investigated by S.I. Jagat Pal Singh, P.W.-8 who visited the spot and on the pointing out of the complainant inspected the place where the dead body of the deceased was found and prepared the site plan Ex. Ka-3. He also recovered a blood stained half pant of the deceased and prepared recovery memo Ex. Ka-14.

S.I. Radhey Shyam prepared the inquest report Ex. Ka-9 of the dead body of the deceased Radha and other documents, namely, letters addressed to the C.M.O., R.I. Ex. Ka-10 and Ex. Ka-11 and photo group of the corpse Ex. Ka-12 and send the dead body in a sealed condition to the mortuary for post mortem examination, which was conducted on 27.04.2011 at about 2.10 p.m.. According to the post mortem report of the deceased Km. Radha, Ex. Ka-3, following injuries were found on her dead body.

1. Abraded contusion 4 c.m. X 1 c.m. left side of face, half c.m. below left eye brow;

2. Rounded abraded contusion 4 c.m.x 3.5 c.m. on left side of cheek, 2 c.m. away from left angle of mouth (mouth bite) with lacerated wound 1.5x 0.4 c.m. x muscle deep on the center of injury;

3. Sub conjuctival haemorrhgaes present on whole of both eye;

4. Lacerated wound 1 c.m. x 01 c.m. x muscle deep at tip of nose;

5. Abraded contusion (round) 4 c.m. x 4 c.m. on right cheek, 1.5 c.m. away from right angle of mouth (mouth bite), lacerated wound 1.5 c.m. x 0.6 c.m. x muscle deep at the center of contusion;

6. Round abraded contusion 3.5 c.m. x 3.5 c.m. at right cheek extending up to right ramus of mandible and 3 c.m. away from right angle of mouth;

7. Abraded contusion 2 c.m. x 1 c.m. at right temporal region 3.5 c.m. front of tragers of right ear.

8. Round abraded contusion 4 x 4 c.m. at left side front of lower abdomen;

9. Rounded abraded contusion 4 x 4 c.m. at left side of public area;

10. One abrasion 1 c.m. x 1 c.m. at the back of proximal phalynx of right thumb;

11. Two abrasions 1.3 c.m. x 1 c.m. at dorsal surface of middle phalanx of right index finger, other is 1 c.m. x 1 c.m. at terminal phalanx of right index finger, 1 c.m. apart from each other;

12. Abraded contusion at the whole of terminal phalynx of right thumb;

13. Abraded contusion 1 c.m. x 1 c.m. at dorsal surface of left index and middle finger;

14. Round abraded contusion 4 c.m. x 3.5 c.m. at lateral part of right buttock;

15. Round abraded contusion 4 c.m. x 4 c.m. at right buttock;

16. Abraded contusion 2 c.m. x 1 c.m. at back of left fore arm, 7 c.m. below elbow joint;

17. Contusion 3 c.m. x 1.5 c.m. at left labia majora and 3.5 x 2 c.m. at right labia majora;

18. Vagina of deceased badly ruptured and there was a hole through which one part of small intestine was coming out, hymen was torn, small intestine was lacerated and there was hole in the small intestine;

On internal examination, doctor found that both eyes were closed; nails were bluish; altered blood was coming out from nostrils; mouth was half open and tongue was between the teeth. On exploration, contusion and haematoma, measuring 5 c.m. x 2.5 c.m. on right lateral surface of trachea, and contusion 3.5 c.m. 2.5 c.m. on the anterior surface of trachea were found, Brain, membranes and both pleura were found congested; middle three trachea rings were found fractured; both lungs were congested; right chamber of the hear was full and left was empty; stomach contained about 200 ml semi solid and semi digested pasty food material; small intestine was full of digested food and gases and large intestine was half full faecal matter and gases; liver spleen and both kidneys were congested; gall bladder was half full and urinary bladder was empty.

The doctor who had conducted the Post Mortem opined that the cause of death was Asphyxia as a result of ante mortem throttling and death had occurred about one and a half days before, with a margin of difference of nine hours on both sides. Thereafter the case was investigated by the then S.H.O., P.S. Karhal, Shiv Bachan Singh, PW-6, who recorded the statements of witnesses Surendra Singh and Rakesh Kumar. He also prepared Supurdaginama of torch and arrested the accused appellant Santosh Kumar alias Gudda on 28.04.2011 and recorded his statement. On the basis his statement, Section 201 IPC was also added. On 29.04.2011 Swab Field Unit of private parts of the accused was taken and its entry was made into G.D. at sl. no. 9 at 7.10 hours on the same day, carbon copy of which is on record and marked as Ex.Ka-6. He also prepared a recovery memo of torch which has been marked as Ex.Ka-7. On completion of investigation, he submitted charge sheet against the appellant, Ex.Ka.- 14.

After committal of the case charges under Section 376, 302 and 201 IPC were framed against the accused appellant but appellant denied the charges framed against him and claimed to be tried.

In order to prove its case the prosecution lead oral as well as documentary evidence. No evidence was produced by the accused appellant in his defence. However, he denied all the allegations levelled against him in his statement recorded under Section 313 Cr.P.C. and alleged his false implication due to enmity.

Sri V.K.Sharma, learned counsel for the appellant has submitted that having regard to the charges framed and the evidence adduced by the prosecution, the conviction of the appellant under Section 376(2)(f) (old), 302 and 201 IPC is no where permissible. Sri. V.K.Sharma, further submitted that the conviction of the appellant which is based upon circumstantial evidence comprising of uncorroborated last seen evidence of sole witness Surendra Singh as the same is full of omissions, contradictions and material improvements, if maintained shall be a travesty of justice.

Sri. V.K.Sharma, learned counsel for the appellant further submitted that the prosecution has totally failed to identify the appellant as the perpetrator of the alleged offence by any reliable, convincing or cogent evidence and thus having regard to the set of evidence on record, the trial court had grossly erred in law and on facts in convicting the appellant under the aforesaid provisions of IPC and in awarding the extreme penalty of death sentence.

Sri V.K.Sharma, learned counsel for the appellant next submitted that the present case is one of circumstantial evidence and no-one had seen the appellant committing the offence with which he has been charged and convicted. The circumstantial evidence, if any, on record does not constitute the complete chain of circumstances to link the appellant with the commission of the offence in question.

Sri. V.K.Sharma, learned counsel for the appellant lastly submitted that the prosecution having failed to adduce any cogent evidence to prove any of the charges against the appellant and in view of the above reference no. 04 of 2011 made by the Additional Sessions Judge, Mainpuri for confirmation of the death sentence passed by him against the appellant to this Court is liable to be turned down.

Per contra, learned GA submitted that the complicity of the appellant was unmistakably proved by the evidence of P.W.-2, Surendra Singh hence the findings recorded by the trial court in the impugned judgment are findings of fact based on proper appreciation of evidence and require no interference by this Court.

Now the only point for determination in this appeal is whether the prosecution has been able to prove its case which is based wholly upon circumstantial evidence beyond reasonable doubt against 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 following incriminating circumstances against the appellant :-

1. The deceased along with her mother had gone to the house of Ramvir Singh to joint Tilkotsav, which was being held at the house of Ramveer Singh (CW-3);

2. Accused/appellant Santosh Kumar alias Gudda had also gone in the Tilkostav of the son of Ramvir Singh (CW-3);

3. The deceased was last seen by PW-2 Surendra Singh going with the accused Santosh Kumar @ Gudda at about 7.30 p.m. on 25.04.2011;

4. The deceased dis-appeared from the place where the Tilakotsav was being held and did not return to her home;

5. Dead body of the victim was found in a drain (naali) covered by the bundle of wheat near the field of Satyaveer Singh son of Rameshwar Dayal and was taken by the accused himself to the house of the complainant.

6. Medical evidence, motive and other circumstantial evidence;

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. R.D.Yadav, (P.W.4) 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. Vagina of the deceased was badly ruptured and there was a hole through which one part of small intestine was coming out, hymen was torn, small intestine was lacerated and there was hole in the small intestine. 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 ?

The prosecution in order to prove its case lead oral as well as documentary evidence. By way of oral evidence it has examined as many as eight witness out of which only two prosecution witnesses P.W.-1 Vinod Kumar and Surendra Singh are witness of fact and the rest are formal witnesses, P.W.-1 Vinod Kumar is the uncle of deceased Radha and the first informant of this case and P.W.-2 Surendra Singh who is the solitary witness who gave evidence of last seen is the star witness of this case.

The description of the rest of the witnesses is as follows:

P.W.-3 Naresh Singh witness of inquest, P.W.-4 Sri. R.D. Yadav, Pathologist District Hospital, Mainpuri, P.W.-5 Constable 497 Pushottam Singh, P.W.-6 S.I. Shiv Bachan Singh, Police Line Mainpuri, Investigating Officer who had submitted the charge sheet, P.W.-7 is S.I. Radhey Shyam Pathak and P.W.-8 S.I. Jagat Pal Singh (first Investigating Officer of the case). Apart from the aforesaid witnesses, the Court had summoned three other witnesses (witness of recovery memo of torch, namely, Rakesh, Pappi Devi, mother of the deceased and Ramveer in whose house the deceased had gone to attend the tilak ceremony and examined them as CW-1, CW-2 and CW-3 respectively. The documentary evidence adduced by the prosecution has been referred to in detail in the impugned judgement and need not be reproduced.

Since the prosecution case is based totally upon circumstantial evidence in order to ascertain whether the prosecution has been successful in proving its case beyond all shadow of reasonable doubt or not, the court has to examine whether the circumstantial evidence on record is of such a nature that it constitutes the complete chain of circumstances pointing out at the guilt of the appellant and on the basis of the circumstantial evidence on record, no other inference except that of the appellant being guilty can be drawn. This Court further has to examine the credibility of P.W.-2 who had given evidence of last seen against the appellant.

As far as the circumstance nos. 1, 2 and 4 are concerned the same are clearly established from the testimony of PW-1 Vinod Kumar, CW-2 Pappi Devi and CW-3 Ramvir Singh.

In order to establish the second circumstance that the dead body of the victim was found in the field of Satyaveer Singh covered by bundle of wheat and was taken by the accused himself to the house of complainant, the prosecution had examined PW-1 Vinod Kumar and CW-2 Pappi Devi. As far as the recovery of the dead body of the victim from the field of Satyaveer Singh is concerned the same stands proved from the evidence of PW-1 Vinod Kumar but the fact whether the dead body of the deceased was brought to the house of the complainant by the accused himself is not proved beyond a reasonable doubt. Although CW-2 has stated in her evidence that accused/appellant Santosh Kumar alias Gudda had brought the dead body of her daughter to her house but PW-1 Vinod Kumar has not stated the aforesaid fact in his evidence and has instead deposed as hereunder:-

"AAJ DIN KE KARIB BARAH BAJE KE LAGBHAG GAON KE SATYAVEER SINGH PUTRA RAMESHWAR DAYAL NE APNE KHET KE PAAS NAALI ME EK GEHU KE BOJH ME DHAKI HUI RADHA KI LASH PAYEE JISKO UTHAKAR GHAR LAYE I JAB SATYAVEER SINGH KE KHET ME LASH MILI THI TAB MAI GHAR PAR THA I TEHREER ME YEH BAAT NAHI LIKHI HAI KI LASH KO KAUN LEKAR AAYA HAI, SAHI HAI"

Thus in view of the aforesaid omission in the evidence of PW-1, the fact that accused himself had brought the dead body of the deceased to the informant's house is not established.

Strangely Satyaveer who had found the dead body of the deceased and who would have been the best person to prove the fact that the accused had brought the dead body of the deceased from the place where it was found to her house was not examined by the prosecution.

As regard the circumstance no.3 regarding the deceased having been last seen with the appellant, Surendra Singh, PW-2 is the sole witness of this circumstance, he stated that in the evening at about 7.30 p.m. on 25.04.2011, when the power supply was snapped because of some technical fault in the generator during the performance of Tilakotsav in the house of Ramvir Singh, he had gone out to ease himself, he had seen the appellant with a five year old girl.

So far as the quality of the evidence and the credibility of the evidence in the present case is concerned it has been noted earlier that the prosecution has produced only two witnesses of fact in this case apart from Rakesh Kumar, witness of recovery memo of his torch Ex.Ka-7, CW-2 Pappi Devi, mother of the deceased and CW-3 Ramvir Singh in whose house the Tilakotsav function was being held. PW-1, CW-2 and CW-3 have not testified that they had either seen the deceased with the appellant or the appellant loitering in the intervening night of 25/26.04.2011 near the place where the deceased's dead body was found.

Rakesh Kumar, who was examined as CW-1, in his evidence tendered during the trial denied that he had either gone to the field of Sarnam Singh, to answer the call of nature or seen the appellant Santosh Kumar alias Gudda coming towards thresher in the intervening night of 25/26.04.2011 as mentioned in the recovery memo Ex. Ka-7. Although he admitted his signature on the recovery memo but he further stated that the recovery memo was not prepared in his presence and hence the recovery memo of the torch Ex. Ka-7 and the facts stated therein cannot be read in evidence against the appellant.

Thus the prosecution does not get any help from the evidence of CW-1 Rakesh Kumar for proving the presence of the appellant near the place from where the dead body of the deceased was recovered.

Hence the only evidence left on the record for proving that the deceased was last seen with the appellant is that of PW-2 Surendra Singh. There is no doubt that according to well settled legal position, it is the quality and not quantity which matters and conviction can be based on the sole testimony of single witness, if it finds corroboration from the other evidence available on record and inspires confidence. It is also well settled that minor discrepancy occurring in the statement of witnesses should be ignored. However, on a close scrutiny of the statements of the witnesses produced by the prosecution in this case, we find that there are serious inconsistencies, omissions and improvements at several places affecting the core of the prosecution case, raising doubt about their truthfulness and resultantly making the prosecution case unreliable and unworthy of credit. In this regard following highlighted portions of extracts from the depositions of PW-1 and PW-2 can be looked into as examples :-

Ikh0MCyw0&1

esjh Hkrhth dq0 jk/kk mez djhc 5 o"kZ fnukad 25&4&2011 dks 'kke dks xkao ds jkethr ds ;gkW fryd esa viuh ekW ds lkFk 'kkfey gksus x;h FkhA ogkW ls okil ugh vk;h FkhA ifjokj okyks us dkQh ryk'k fd;k rks dq0 jk/kk ugh feyhA nwljs fnu fnukad 26&4&2011 dks le; djhc 12 cts lR;ohj flag us vius [ksr ds ikl ukyh es xsgWw ds cks>k ls s ckn esa i x x x x

x x x x

rgjhj eSus lq[kys'k ls fy[kkbZ FkhA rgjhj eSus vKkr essa fy[kkbZ Fkh fdlh dk uke eqyfte esa ugh fy[kk;k FkkA fnukad 25&4&11 dks jkeohj ds ;gkW jk/kk yxu lekjksg esa x;h Fkh ogha ls xk;c gqbZ FkhA jkeohj esjs xkao ds gSa ifjokj ds ugh gSaA eSa Hkh x;k Fkk eS [kkuk [kkdj vk x;k FkkA eSus fdlh dks jk/kk dks ys tkrs ugh ns[kk FkkA tc jkr dks yM+dh ?kj ij ugh vkbZ rks eSus eksgYys es lc txg ryk'k fd;k FkkA esus jkr es vkB cts ls ryk'kuk 'kq: fd;k Fkk vkSj jkr ds nl cts rd ryk'k fd;k FkkA eSus jksrs fpYykrs es fjiksVZ fy[kkbZ Fkh tSls fy[kk ikbZ oSls fy[kkbZ FkhA eSa i<+k fy[kk ugh gWwA ryk'kus okyh ckr crkbZ Fkh vxj njksxk th us ;g ckr ugh fy[kh rks eS dksbZ otg ugh crk ldrkA eS nqokjk fQj fryd es x;k Fkk yM+dh fQj Hkh ogka ugh feyh FkhA tc eSa nqckjk igaqpk Fkk rc Mh0ts0 ct jgk Fkk yxqu p<+ jgh FkhA tks fiyqvk ls lqjsUnz flag oxSjg vk;s Fks os jkeohj ds fj'rsnkj Fks eSa muls ifjfpr Fkka lqjsUnz flag dh Hkrhth dh yxqu vkbZ FkhA jkeohj ls o lqjsUnz flag ls iwNk Fkk rks mUgksaus dgk ns[kks ** ;g ckr lgh gS fd eq>s irk ugh yxk Fkk fd fdlus cykRdkj djds gR;k dj nh gSA yk'k fey tkus ds ckn rqjUr fjiksVZ djus x;s FksA nwljs fnu iqfyl djhc 2 cts fnukad 26 dks vkbZ FkhA iapk;rukek Hkjk x;k FkkA iapk;rukek dh dk;Zokgh djhc ikap N% cts [kRe gks x;h FkhA iapk;rukek ij esjs nLr[kr ugha djk;s FksA ;g ckr lgh gS fd iapukek Hkjs tkus eqyfte dk uke eq>s fdlh us ugh crk;k FkkA ;g dguk xyr gS fd eSa xkao okyksa ds crkus ls eS U;k;ky; es >WwBh xokgh ns jgk gWwa

ih0MCyw0&2

24&9&2012

** rkjh[k 25 Fkh eghuk oS'kk[k FkkA vkt ls djhc ,d lky ikap eghuk dh ckr gSaA jkeohj ds yMds ds fy, fryd ysdj jkeohj ds xkao yniqjk vk;k FkkA eS viuh Hkrhth dk fryd ysdj vius HkkbZ HkRRks ds lkFk vk;k FkkA 'kke djhc lk x x x x

x x x x

ljSb;k ds jktohj flag esjs lk s lwpuk fey x;h FkhA eS ?kj ls djhc ckjg cts pyk FkkA njksxk th us esjk c;ku fy;k FkkA eSaus njksxk th dks ;g c;ku fn;k fd ** izeksn dh ikap o"kZ dh iq=h dh fdlh us cykRdkj dj gR;k dj fn;k gS rc eSa bl xkao okil vk;k ** lgh gS crk;k FkkA tc esjk c;ku iqfyl dks fn;k Fkk rc rd irk ugh pyk Fkk fd dlus ekjk gSA eS tc okil xkao vk;k Fkk rc rd fjiksVZ fy[k xbZ FkhA izeksn ds vykok xzke yniqjk esa fl;kjke ds ;gkW ofgu gSaA fl;kjke dk izeksn ds ;gkW vkuk tkuk gSA esjs nks lk awBh xokgh ns jgk gWwA

The question which now arises for consideration is that if PW-2 Surendra Kumar Singh had seen the appellant with the deceased when due to a technical snag the generator had stopped working and the power supply was snapped, during the performance of Tilak Ceremony in the house of Ramveer Singh why he did not disclose the aforesaid fact to PW-1 who while searching the deceased had also met PW-2 in the house of Ramvir Singh and enquired from him about her whereabouts and PW-2 had told him to look for her in the house and assured him that the victim would soon be found instead of informing him that he had seen the victim with the appellant as both the victim and the appellant were known to him previously as is apparent from the perusal of his evidence tendered during the trial. He has further failed to state the aforesaid fact in his evidence.

PW-1 also failed to disclose the description of the girl whom he had seen with the appellant and the colour of the clothes she was wearing in his statement recorded under Section 161 Cr.P.C., although in his statement made during the trial he gave vivid description of the victim and the clothes she was wearing. The aforesaid omissions in our opinion amount to improvement and the aforesaid improvements go to the root of the prosecution case and materially affect the same at the same time rendering the same unworthy of credence and unreliable.

We stand fortified in our view by the law laid down by the Apex court in the case of Yudhishtir Versus The State of Madhya Pradesh along with connected case Raj Kumar and another Versus State of Madhya Pradesh reported in 1971 SCC (Cri.) 684 wherein the apex court has held as hereunder:

"24. Mr. Shroff, learned counsel for the State, has attempted to explain away these circumstances on the ground that they are only minor omissions which will not affect the credibility of their evidence given before the court. We cannot accept this contention of the learned counsel. We are of the opinion that these omissions, pointed out above, are not minor, but they are omissions of a very substantial nature, which affect the truth of the evidence given before the Court. On the earliest occasion these witnesses have omitted to refer to the decisive role stated to have been played by the appellants in the commission of murder. Therefore, the statement before the Court implicating appellants must, in the circumstances, be considered to be an improvement."

Similarly, the apex Court in the case of Ram Kumar Pande Versus The State of Madhya Pradesh reported in AIR 1975 SC 1026 has expressed similar view:

"No doubt, an F. I. R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."

In the case of Sunil Kumar Shambhudayal Gupta and others Versus State of Maharashtra reported in [2011 (72) ACC 699], the apex Court has held as hereunder:

"14. Material Contradictions: While appreciating the evidence, the Court has to take into consideration whether the contradictions / omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the Appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons.

21. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars, i. e., go to the root of the case / materially affect the trial or core the prosecution's case, render the testimony of the witness liable to be discredited."

In the case of Sampath Kumar Versus Inspector of Police, Krishnagiri reported in [2012 (77) ACC 251] the Apex Court in para 8 has held as hereunder:

"8. Coming to the facts of the present case, the prosecution relies entirely upon the deposition of PWs. 1, 2, 3 and 7. Of these depositions PWs. 1, 2 and 3 are not admittedly eye- witnesses to the occurrence, nor have they stated anything against the appellants except that the deceased was fond of Usha and wanted to marry her which was not to the liking of her brother-Velu, the appellant before us. It is only the deposition of Palani (PW7) that holds the key to whether the appellants are guilty or innocent. According to this witness who was sleeping with the deceased in the verandah of the house of PWs 1 to 3, at about 2.45 a.m. at night he heard a sound that woke him up. He also noticed the appellants standing near the deceased. According to the witness, the appellants threatened him not to disclose anything to anyone otherwise he would meet the same fate. The witness, however, made no disclosure to PWs. 1, 2 and 3 who were inside the house, even when they had been woken up because of the sound and wanted to come out but could not because the door was bolted from outside. He made no disclosure of what he had seen even after the police had arrived at the scene after the registration of the case. In his statement before the police under Section 161 Cr.P.C., Palani (PW7) made no such accusations against the appellants nor did he disclose to anyone that he had seen the accused persons on the spot around the time of the commission of the offence. It was only five years after the occurrence that the witness for the first time disclosed in the Court the story about his having seen the appellants standing near the deceased when the former woke up on account of the noise of a stone falling hard on the ground. The witness did not offer any explanation, much less a cogent and acceptable one for his silence for such a long period. His assertion that he was scared by the appellants even after they had been taken into custody by the police and, therefore, did not reveal anything about the actual events till he had the courage to come to the Court to make a statement, is hard to believe. At any rate, reliance upon the deposition of a witness who has made such a material improvement in his version is wholly unsafe unless it is corroborated by some other independent evidence that may probabilize his version."

Thus upon a close scrutiny of evidence PW-2, we find that the same is neither reliable nor acceptable in view of the glaring omission therein.

Another salient feature of this case is that item no. 6-Chaddhi (underwear) of the deceased Km. Radha Ex. Ka.14 which allegedly revealed presence of spermatozoa as per the report of the Forensic Science Laboratory, Agra dated 24.07.2012 was sent to the Forensic Science Laboratory, Lucknow pursuant to the order of this Court passed in this case earlier on 07.01.2015 for ascertaining whether the seminal staines on the Chhaddhi (underwear) item no.6 Ex.Ka-14has identifiable DNA. By the aforesaid order this Court had also directed for extracting fresh seminal and blood samples from the appellant Santosh Kumar @ Gudda detained in district jail, Mainpuri under the supervision of C.J.M., Mainpuri with a further direction for forwarding the aforesaid samples to the Forensic Science Laboratory, Lucknow for DNA matching with the seminal stains found present on the underwear of the deceased for ascertaining whether the seminal stains could be imputed to the appellant. In compliance of the aforesaid order of this Court, the underwear of the deceased, Item no. 6 Ex. Ka-14 was sent to the Forensic Science Laboratory, Lucknow along with the fresh seminal and blood samples of the appellant- Santosh Kumar @ Gudda and upon DNA comparison the Forensic Science Laboratory, Lucknow reported that the seminal and the blood samples extracted from the appellant- Santosh Kumar @ Gudda did not match with the spermatozoa present on the underwear of the deceased Km. Radha (item no. 6) and hence the same could not be imputed to the appellant. The report of the Forensic Science Laboratory, Lucknow dated 04.08.2015 is part of the record of this criminal appeal and hence can be read as evidence under Section 293(1) Cr.P.C. in this criminal appeal. Since no objection has been filed by the learned AGA against the report of Forensic Science Laboratory, Lucknow dated 04.08.2015, we do not consider it necessary to summon and examine the author of the report as to its contents.

In view of the foregoing discussion, 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 uncorroborated statement of PW-2 Surendra Singh does not inspire confidence in view of the omissions in his testimony noted herein above.

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.

In our considered opinion the conviction of the appellant under Sections 376(2)(f) (old), 302 and 201 IPC cannot be sustained and is liable to be set aside.

As a result, this appeal succeeds and is allowed. The impugned judgement dated 11.04.2014 and order 15.04.2015 passed by learned Sessions Judge, Mainpuri, in S.T. No. 22 of 2012. State Vs. Santosh Kumar Singh alias Gudda are set aside and in view of the findings recorded hereinabove, Reference No. 04 of 2014 stands rejected. The appellant, Santosh Kumar @ Gudda who is in jail, stands acquitted of the charges framed against him and shall be released forthwith, if not wanted in any other case.

However, keeping in view the provisions of Section 437-A Cr. P. C., the appellant, Santosh Kumar @ Gudda is directed to forthwith furnish a personal bond in the sum of Rs. One lac and two reliable sureties in the like amount before the trial court (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the instant judgement or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

Order Date:- 22/12/2015

Abhishek Sri.