Rakesh Kumar Upadhyaya vs State
2017 Latest Caselaw 5372 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 5646 of 2007
 

 
Appellant :- Rakesh Kumar Upadhyaya
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Amit Kumar Srivastava,Arvind Kumar Srivastava A
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon.Chandra Dhari Singh,J.)

01. Heard Sri Amit Kumar Srivastava, learned counsel for the appellant and Ms. Usha Kiran, learned Additional Government Advocate for the State.

02. The instant appeal has been filed against the judgment and order dated 8.12.1989, passed by the First Additional Sessions Judge, Allahabad whereby the accused-appellant Rakesh Kumar Upadhyaya was found guilty of the offence punishable under Sections 302, 376 and 201 I.P.C. and sentenced to life imprisonment for the offence punishable under Sections 302 and 376 I.P.C.. The trial court awarded three years' rigorous imprisonment to the accused-appellant for the offence punishable under Section 201 I.P.C.. All the sentence shall run concurrently.

03. Brief facts of the case.

I. As per the prosecution case, the appellant Rakesh Kumar Upadhyaya is the brother-in-law of Krishna Chandra Pandey alias Krishna Pandey of the village of the informant-Laksmi Shankar Pandey (P.W.4). Krishna Chandra Pandey used to reside in the village for about 5 and 6 months. The occurrence took place on 19.3.1989 at about 5 .00 P.M.. The daughter of the informant was missing from the village. The informant-P.W. 4, Laxmi Shanker Pandey had searched for his daughter since 8.00 P.M. till 2.30 A.M.. He searched his daughter next day also, but she could not be traced. It was during the evening of the next day, when he came to know that dead-body of the deceased was lying in the drain beside the Chakroad. The deadbody of the deceased was brought to the door of the informant. Thereafter, a First Information Report was got written from one Hari Shankar Pandey. The said report was lodged at Police Station Handia. On his return from the police station, he came to know from Ram Nihore-P.W.3 and Nankoo-P.W.9 of his village that they had seen the deceased with the appellant-Rakesh Kumar Upadhyaya going in the house of Krishna Pandey and they had not seen her returning from there. The houses of both the P.W.9- Nankoo and P.W. 3-Ram Nihore are situated beside the house of Krishna Pandey. The accused Rakesh Kumar Upadhyaya was not seen in the village since after the occurrence, as he had absconded from the village. The deadbody of the deceased was sent to mortuary, where the post mortem on her deadbody was conducted by Dr. U.S. Sinha, P.W.8. The case was investigated by the S.S.I. Sri Ravindra Kishore Pandey-P.W.9, who had recorded the statements of the witnesses, prepared the site plan Ex. Ka-13 and submitted the charge-sheet Ex. Ka-15 against the accused-appellant Rakesh Kumar Upadhyaya after completing the investigation.

II. The charges were framed against the appellant Rakesh Kumar Upadhyaya for the offence punishable under Sections 376, 302 and 201 I.P.C.. The accused had pleaded not guilty to the charges framed against him and he alleged that he was falsely implicated in the case. He also pleaded alibia as was not present in the village on the date of the occurrence. In his statement under Section 313 Cr.P.C., he has taken the plea of alibi.

III. The prosecution had examined Smt. Geeta Devi, mother of the deceased as P.W.2, who has corroborated the testimony of her husband Laksmi Shankar Pandey-P.W.4. The informant. Smt. Geeta Devi-P.W.2 deposed that her daughter-deceased was aged about six years on the date of incident. The deceased was playing at the door of the accused at about 5.00 P.M., P.W. 2, Smt. Geeta Devi went to the field of pea crop and when she returned from there after sunset, she found that the deceased was not present in the house. Thereafter, she cooked food and waited for her daughter-deceased but she did not come back. She and her husband- P.W.4 started searching the deceased. They searched the deceased till 2.30 A.M. On next day they come to know that deadbody of the deceased was lying in the drain of Chakroad. The wife of Krishna Chandra Pandey i. e. sister of the appellant/ accused-Rakesh Kumar Upadhyaya was not present in the house as she had gone out and accused was alone in the house, as Krishna Chandra Pandey usually resides out of station. The accused person brought the deceased in the house as the house of Krishna Chandra Pandey was vacant and committed the offence.

IV. The prosecution has examined Ram Nihore- P.W.3 and Nankoo-P.W.9. Both these witnesses deposed that they had seen the accused Rakesh Kumar Upadhyaya taking the deceased in the house of Krisnha Chandra Pandey at about 5.00 P.M. on the date of occurrence. They further deposed that they had not seen her coming out from the house. Both the witnesses have corroborated each other and they supported the case of the prosecution. Both these witnesses have been cross-examined on behalf of the defence but nothing material came in the cross-examination to discredit their testimony.

V. The prosecution has placed reliance on the extra judicial confession made by the appellant Rakesh Kumar Upachyay. Pt. Parasnath Pandey as P.W.1 had deposed that the accused-appellant had come to his house in the presence of one Daya Shankar Tewari and confessed that he had committed rape with the deceased and thereafter he had committed her murder by strangulating her. The appellant has further confessed that after committing rape and murdering the deceased he had caused burn injuries to her. The appellant further confessed that during the night he had thrown the deadbody in the drain near the chakroad. The appellant-accused requested to P.W.1 to help him out from this case as he is very influential person. The appeallant-accused had also confessed his guilt before the Investigating Officer, Sri Ravindra Kishore Pandey- P.W.11. The Investigating Officer, Sri Ravindra Kishore Pandey, P.W.11 stated in the deposition that the accused had told him, that he had also made confession in this regard to Parasnath Pandey P.W.1.

VI. In the statement under Section 313 Cr.P.C. the accused has taken plea of alibi as he was in Banaras during the time of occurrence. The accused has, however, not submitted any oral or documentary evidence in support of his plea of alibi, therefore, he has failed to prove the plea of alibi. Mere statement under Section 313 Cr.P.C. cannot take the plea of substantive evidence. The plea of alibi can succeed only, if he is shown that the accused was so far away at the relevant time that he could not able to present at the place where the crime was committed.

VII. To bring the guilt of the accused-appellant, the prosecution has examined P.W.1, P.W.2, P.W.3, P.W.6, P.W.9 and other relevant witnesses for incriminating. The evidence and circumstances were put to accused-appellant under Section 313 Cr.P.C. and the accused denied all the charges levelled against him. The appellant has taken plea of alibi in the statement recorded under Section 313 Cr.P.C. but has failed to prove the plea of alibi in absence of any oral or documentary evidence. The entire prosecution story is based on circumstantial evidence as P.W.3 and P.W.9 had seen the deceased with the appellant on the date when the crime was committed.

VIII. The trial court after concluding the proceedings vide judgment and order dated 08.12.1989, convicted the appellant herein for committing rape and murder and sentenced him to life imprisonment. The trial court convicted him for offence punishable under Section 201 I.P.C. and sentenced him to 3 years' R.I. All the sentences shall run concurrently.

IX. Aggrieved by the said judgment and order dated 08.12.1989 of Additional Sessions Judge at Allahabad the instant Jail Appeal was filed.

04. The learned counsel appearing for the appellant has submitted that the FIR of the present case has been lodged after one day and no explanation has been given by the informant in delay of lodging the F.I.R. He also pointed out some contradictions in the prosecution evidence. He submitted that the entire case of prosecution is based on the circumstantial evidence i.e. last seen theory. As per his submission, the chain of the circumstantial evidence has not been completed in the instant case. Therefore, the prosecution has failed to prove its case beyond reasonable doubt.

05. Per contra, learned A.G.A. for the State contended that the prosecution has established that the deceased was last seen alive in the company of the accused-appellant, it was for the accused for explaining as to what happened to the deceased. In the absence of any explanation from the accused appellant and based on the circumstantial evidence, the court below rightly convicted the appellant. The impugned judgment warrants no interference. Learned A.G.A. has also pointed out that the appellant had taken the plea of alibi in the statement recorded under Section 313 Cr.P.C. and he had failed to prove any evidence oral or documentary in support of the plea of alibi and, therefore, that was disbelieved by the court below.

06. We have considered rival contentions and perused the impugned judgment and material on record.

07. Case of the prosecution is entirely based on circumstantial evidence. In this regard settled law is that circumstances from which conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should become complete forming the chain and there should be no gap left in the chain of the evidence.

08. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, the Hon'ble Supreme Court held as under:-

"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)". The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319.

09. In the light of the above, it is to be seen whether in the facts and circumstances of the case, whether the courts below were right in invoking the "last seen theory." From the evidence discussed above, the deceased was seen with the appellant on the date and time when the incident took place. The prosecution has contended that the accused person was last seen with the deceased but the accused- appellant has not offered any plausible, cogent explanation as to what has happened to the deceased. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act.

10. The accused-appellant had pleaded for alibi in his statement under Section 313 Cr.P.C. as he was not present on the spot on the date, when the incident took place. He was in Banaras on the same date, but he failed to prove the plea of alibi as taken in the absence of any substantive evidence in support of the same.

11. In Jamnadas vs. State of Madhya Pradesh, 2016 13 SCC 12 the Hon. Supreme Court held that in a case of circumstantial evidence, when the accused offers an explanation and that explanation was found to be untrue, then same offers an additional link in the chain of circumstances, to complete the chain.

12. In Suresh vs. State of Haryana, (2015) 2 SCC 227 wherein discussing the same issue in para-9 , the Hon. Court observed that :-

"9.........No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused."

13. A similar view has been taken by the Hon'ble Supreme Court in Rumi Bora v. State of Assam, (2013) 7 SCC 417, wherein it has been accepted that a false answer offered by the accused when his attention is drawn to the circumstances, it renders a circumstances to be of inculpating nature i.e. in such a situation a false answer can also be counted as providing a missing link for completing the chain.

14. The case of the prosecution and the testimony of the witnesses find support from the medical evidence i.e. Ext. Ka6. The prosecution has examined Dr. U.S. Sinha as P.W.8 who conducted post mortem on the deadbody of the deceased as Post Mortem Report Ex.Ka-6. Testimony of Dr. U.S. Sinha-P.W.8 shows that bleeding was present in the vagina of the deceased. P.W.8 deposed that deceased was sexually assaulted and her murder was caused due to Asphyxia as a result of smothering. Doctor further deposed that murder and rape of the deceased could have been caused at about 5 or 6 P.M. on 19.3.1989. In his cross-examination also Dr. U.S. Sinha- P.W.8 had deposed that rape was committed on the deceased before her murder.

15. The court below has applied settled principles of law in the correct perspective, which we have explained hereinabove.

16. The deceased was murdered by some one, has not been disputed and the same finds support from the post mortem report Ex. Ka-6 and the testimony of Dr. U.S. Sinha (P.W.8), who had prepared the post mortem report. Ram Nihore as P.W.3 and Nankoo as P.W.9 had seen the accused person with the deceased on the date of the occurrence at 5.00 P.M., from that time she was missing. In the instant case, the prosecution has established its case against the accused cogently and firmly. The circumstantial evidence adduced by the prosecution is of definite tendency unerringly pointing towards the guilt of the accused/appellant on the circumstances, if taken cumulatively, does form a complete chain to prove that it is probable that the crime was committed by the accused and none also.

False statement under Section 313 Cr.P.C. has also after one additional line is the chain of circumstances, to complete the chain.

17. There is no material on record on the basis of which, this Court may take a different view or conclusion from the court below. The conviction and sentence awarded by the court below vide judgment and order dated 8.12.1989 passed in S.T. No.132 of 1989 is maintained. We do not find any force in this Jail Appeal, which is accordingly dismissed.

18. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.

Order Date :- 12th October, 2017

Asha

(Chandra Dhari Singh,J.) (Shri Narayan Shukla,J.)