Nemiechand vs State Of U.P.
2018 Latest Caselaw 2749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

			                            Reportable			                 Reserved on:-20.08.2018                                                                    			Delivered on:-24.09.2018
 
Court No. - 36
 
Case :- JAIL APPEAL No. - 6100 of 2011
 
Appellant :- Nemiechand
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A. G. A.
 
Hon'ble Mrs. Sunita Agarwal, J.

Hon'ble Vivek Kumar Singh, J.

Heard Sri Avinash Jaiswal, learned Amicus Curiae on behalf of the appellant and Sri Om Prakash, learned A.G.A. for the State-respondent.

Challenge in this appeal is to the judgment and order dated 16.07.2011 passed by the Additional District and Session Judge, Court no.17, Agra whereunder the appellant Nemi Chand has been convicted for abduction, commission of unnatural sexual offence with a five year old child punishable under Section 364 & 377 and for his murder under section 302; with imprisonment for life with fine and 10 years imprisonment with fine, separately. In case of non deposit of fine, the appellant has to undergo further imprisonment for 1 and 1/2 years; respectively, for each set of offence. All the punishments are to run concurrently.

The prosecution case as unfolded during the trial is as follows:-

The appellant and the victim Karan a child aged about five years (at the time of incident), both were neighbors i.e. residents of Gram Sevla, Mandir Wali Gali, Gwalior Road, Agra. A written report was submitted by Rajendra son of Sri Ram Bharose, father of the deceased Karan that on 22.04.2009 at about 7.45 PM, his son Karan was playing outside his house while his wife was inside. The informant was not present at home. The appellant-Nemi Chand son of Bhagwan Das took the child near the road while playing with him. His son was missing since thereafter. Sheru son of Madan Lal, Pappu son of Bahadur Singh and Geeta wife of Bheem had seen the appellant taking the child with him. When the child had gone missing, the first informant went to the house of the appellant to enquire. Upon asking from the family members of the appellant i.e. his brother Raju and nephew Jitendra, they started fighting with the first informant in order to defend the appellant. After a long search, the dead body of his son Karan was found in a field about 100 meters from Nainana Brahmadh Modh Dairy Farm Gwalior Road. It was stated that the appellant had committed murder of his son and his brother and nephew were also accomplice in the same. The dead body was lying at the place noted above.

On the presentation of the said report, Chik FIR was lodged by Vijay Pal Singh, Constable Clerk, Police Station Sadar, Agra on 23.04.2009. The initial investigation was done by Sri V.K. Tiwari, the then Station House Officer, Police Station Sadar who made GD entry and recorded statement of the first informant. He had also prepared the recovery memos of clothes of the deceased Karan (exhibit Ka-2), plain earth and blood stained earth (exhibit Ka-5), clothes of accused Nemi Chand (exhibit Ka-16) in the presence of witnesses Sheru son of Madan Lal and Papu son of Bahadur Singh. The recovery memo exhibit Ka-2 bears the signature of the first informant whereas in the recovery memo of clothes of the appellant (exhibit Ka-16), signatures of the appellant exists. The inquest was made in the presence of the first informant namely Rajendra and four other witnesses. The time of commencement and completion of the inquest as reported therein is about 8.45 AM and 10.45 AM; respectively, on 23.04.2009. The description of FIR with the name of the first informant and cause of death has also been reported therein. The dead body is reported to have been recovered from a field near the Military Dairy Farm at Gram Nainana Brahmadh Modh Dairy Farm Gwalior Road. It is reported that when police reached the spot, the family members of the deceased were wailing and several other villagers were present on the spot. There were injuries on the dead body which revealed that the death was caused after commission of unnatural sexual offence with the child. The body was sent for postmortem.

The appellant was caught by Sheru and Pappu who had seen him with the deceased child before the child had gone missing. In another written report submitted by Pappu on 23.04.2009, with the signature of Sheru and the appellant, it is stated that while they were searching for the victim Karan and appellant Nemi Chand, at about 7.30 PM, they spotted the appellant near the tempo stand of Gram Sevla. Upon seeing them, he tried to flee but was caught by them. When enquired from the appellant about the wherabouts of the victim Karan, he firstly pleaded ignorance but when persuaded to tell the truth by taking him into confidence by these two persons, he admitted of committing the crime. It was also reported that the appellant took them to the Military Dairy Farm i.e. the place of commission of the crime which was a nearby place from where the dead body of the victim Karan was found.

The recovery memo of plain and blood stained earth (exhibit Ka-5) was prepared in the presence of the appellant. Whereas the recovery memo of clothes of the accused exhibit Ka-16 states that the appellant was brought to the place of occurrence by Pappu and Sheru after he was caught by them whereupon he was arrested there by the police at about 11.00 AM on 23.04.2009. It further discloses that at the time of arrest, appellant was wearing jeans and a cotton shirt whereon blood stains could be seen. When inquired about the blood stains on his clothes, the appellant admitted that they came as a result of the crime committed by him on the previous night.

His clothes were sealed on the spot and recovery memo was prepared, a copy of which was given to the appellant Nemi Chand.

The postmortem was conducted on 23.04.2009 at about 2. PM. The injuries found on the person of the victim child are as follows:-

	"1.Multiple contused swelling 7 cm x 5 cm over front 		    and both side neck.
 
	2.L.W. 3 cm x 1 cm x bone deep over under surface of 	chin.
 
	3.Contused swelling 8 cm x 5 cm over right portion of  	cheek.
 
	4.Multiple contused swelling 5 cm x 4 cm front right 	 	portion of chest upper part.
 
	5.Abrasion 18 cm x 9 cm over right portion of buttock.
 
	6.Multiple nail size abrasion front over upper part chest 	and neck.
 
	7.Anal opening broad and funnel shaped tear with dry 	clotted blood present.
 
	8.Tr swelling 6 x 4 cm over left side skull and 	forehead."
 

The cause of death as reported therein is asphyxia due to strangulation after anal intercourse was done with the victim. The approximate time of death as reported therein was about 3/4 day before the postmortem. Multiple nail marks have been found in the upper part of the chest and neck of the deceased and anal opening was broad and torn with dry clotted blood present therein. Apart from these injuries, multiple contused swelling of 7 cm and 5cm were present over front and both sides of the neck with a lacerated wound over under surface of the chin. Swelling due to injury was found on the left side of skull and forehead.

The injuries as noted above are the proof of the prosecution case that the victim was subjected to anal intercourse forcibly before he was battered to death by strangulation. Furthermore the injuries on the dead body are also signs of struggle of the victim child during commission of unnatural intercourse with him.

The dead body was recovered from an open place where the police had reached after the incident was reported by the father of the deceased.

Doctor Alok Kumar Mishra who conducted postmortem, was examined as PW-4; Constable Ravindra Kumar Dubey who was posted as Sub Inspector in the police station Sadar on 23.04.2009 and prepared inquest report was examined as PW-5; Constable Vijay Pal Singh who had prepared the chick report and made G.D. entries on 23.04.2009 was examined as PW-6; Constable Lakhan Singh who took the case property to the Forensic Laboratory, Agra was examined as PW-7; Inspector V.K. Tiwari who had recorded the statement of the first informant Rajendra and of the FIR writer Constable Vijay Pal Singh in the case diary was examined as PW-8.

PW-8 stated to have received written report submitted by Pappu and also recorded statement of Pappu (PW-2), Sheru and the appellant Nemi Chand and had prepared the recovery memos exhibit Ka-2, exhibit Ka-5 and exhibit Ka-16. He also deposed to have prepared the sketch map of the place of occurrence of the incident in his own hand writing bearing his signature. He deposed that the entries in the case dairy were made by him after perusal of the inquest and the postmortem report. Raju and Jitendra, brother and nephew of the appellant were also arrested by him on 08.05.2009 and their statements were recorded on 13.05.2009.

These formal witnesses were produced to prove the reports prepared by them and that the charge sheet was submitted against the appellant under Section 364, 377 and 302 IPC after completion of investigation. Another charge sheet was submitted against two alleged accomplices namely Raju and Jitendra under Section 364, 302 & 120-B IPC.

All the accused denied the crime and were committed to trial.

The trial court found that the prosecution had failed to establish guilt of two accomplices namely Raju and Jitendra brother and nephew of the appellant and as such they were found not guilty. The charges levelled against the appellant were, however, found proved beyond doubt.

In support of its story, the prosecution had produced three witnesses of facts:- (i) the first informant namely the father of the deceased Rajendra was examined as PW-1; (ii) Pappu son of Bahadur Singh was examined as PW-2 and (iii) Smt. Geeta wife of Bheem Sen was examined as PW-3.

The first informant PW-1 is the father of the victim deceased Karan. He had lodged the FIR on 23.04.2009 at about 7.15 AM. The FIR was a written report scribed by Bhagwan Singh brother of the first informant. As per the written report, the deceased Karan was last seen with the appellant Nemi Chand by Sheru son of Madan Lal, Pappu Son of Bahadur Singh and Geeta wife of Sri Bheem. The first informant was not at home when he returned back and was told by his wife that their son Karan was not traceable, he alongwith neighbours went for search. They could not find Karan and then went to the house of appellant Nemi to inquire about the victim Karan where they met with brother Raju and nephew Jitendra of the appellant who scolded them.

The dead body of the deceased Karan was found in the morning of 23.04.2009 in a field. The first informant alongwith other villagers, thereafter, went to the police station to lodge the report.

The present case is a case of circumstantial evidence. There is no direct evidence to connect the appellant with the crime. In case of circumstantial evidence, the court can draw an inference of the guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In a case based on circumstantial evidence, the settled law is that all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In Padala Veera Reddy Vs. State of Andhra Pradesh & others1 the Apex Court has laid down the tests which must satisfy when a case rests upon circumstantial evidence as follows:-

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

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

(3) 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

(4) 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 State of U.P. Vs. Ashok Kumar Srivastava2, it was pointed out that 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 Sharad Birdhichand Sarda Vs. State of Maharashtra3, it was held while dealing with the circumstantial evidence that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The same view has been reiterated in various pronouncements of the Apex Court latest being Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra4 and Manivel & others Vs. State of Tamil Nadu5.

In the instant case, the prosecution story starts with the theory of deceased having been "last seen with the appellant" in the night, whereafter he had gone missing. It would, therefore, be apt before appreciation of evidence in the instant case to take note of two important decisions of the Apex Court on the aspect of evidence of "last seen". In the State of U.P. Vs. Satish6 , it has been held as under:-

"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

In Ramreddy Rajesh Khanna Reddy & another Vs. State of A.P.7, following observations have been made:-

"The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration".

The said view has been followed in the latest judgement in Manivel & others (supra).

Thus, the legal position in a case of circumstantial evidence which starts with the theory of "last seen together" is that the said theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. When there is a long gap and possibility of other persons coming in between exists, in the absence of any other positive evidence, it would be hazardous to come to a conclusion of guilt in those cases. Meaning thereby the chain which starts from the theory of last seen together should be ended with the death of the victim leaving no gaps or very small gaps in between so as to rule out any other hypothesis of third party being author of the crime. Reference may also been made to the judgment of the Apex Court in the case of Bodhiraj @ Bodha & others Vs. State of Jammu & Kashmir8.

In the light of the said principles, the ocular evidences of the present case are to be appreciated.

The first informant has been examined as PW-1. In his statement while giving narrative of the events before lodging of the FIR, he has proved the contents of the FIR. As per his averments, on 22.04.2009, at about 7.45 PM, his son aged about 5 years (the deceased) was playing outside his house. The first informant was not present there, whereas his wife was inside the house. When he reached back home, his wife told that she could not find their son. While the first informant was searching for his child, their neighbors Geeta, Pappu and Sheru had told him that they had seen Karan with the appellant Nemi, who took him towards the road while playing with him. Upon knowing the said fact, the first informant alongwith those persons went to the house of the appellant where they found brother and nephew of the appellant. Upon asking them about the whereabouts of the child Karan, they started fighting with the first informant so they returned back. On 23.04.2009, at about 5-6 AM, dead body of his son Karan was found in a field. On seeing the dead body, he came to know that his son was murdered after being sexually assaulted. He went to lodge FIR soon after the body was found leaving it as it is. As he apprehended Raju and Jitendra being accomplices in the crime, he reported their names also as accused. The written report was scribed by Bhagwan Singh on his dictation.

In the cross examination on behalf of Raju and Jitendra, PW-1 admitted that their names were included in the FIR on his suspicion of their involvement as they fought with the first informant when he inquired about his son. This witness has stated that information with regard to the dead body of his son lying in the dairy farm was given by the local person who went there daily to toilet. At that time also, he alongwith others was searching for his son. After getting information, he alongwith his neighbors went to the spot and found the dead body of his son lying in a field near the dairy farm. After FIR was lodged, police reached the spot and prepared inquest report and the recovery memo of the clothes of the deceased in his presence. He proved chick FIR, recovery memo and the inquest report put to him in the Court. He denied suggestion of having enmity with the appellant Nemi. He also denied the suggestion of the statement of the appellant being recorded in front of the crowd present on the spot of crime. He also denied that the appellant was physically examined in his presence or sample of his semen was taken at that place. He also denied of having seen the appellant taking his child or committing his murder. He also denied that the report was lodged by him on the asking of his wife or his neighbors namely Sheru, Pappu and Geeta.

PW-2 Pappu is the witness who had last seen the deceased with the appellant. In his statement, he deposed that on 22.04.2009 he was in the locality (Basti) and at about 7.45 PM he saw the appellant carrying the victim towards the turning of the road. Apart from him, other residents of locality including Sheru had also witnessed them. He told this fact to the father of the deceased-PW-1, when he was searching for his son and asked his whereabouts. PW-2 deposed that he went to the house of the appellant with PW-1 when his brother and nephew abused them. The victim child could not be traced though they searched for him throughout night.

He further goes on to say that the father of the deceased went to the police station to lodge report and he and Sheru were kept searching for the child. When they reached at the Sewla tempo stand, they found the appellant standing there. Upon seeing them, he tried to flee but they caught him and asked the whereabouts of the child. Initially, he had shown ignorance but on inducement, he confessed of taking victim Karan with him and murdering him after sexually assaulting him. He told that the body of the child was lying in a field near the dairy farm. PW-2 further states that he alongwith Sheru and residents of the locality caught the appellant and took him to the police station. In the police station, the said incident was reported by PW-2 in his own writing which bears the signatures of Sheru and the appellant. The written report given by PW-2 was proved by him in the Court. This witness also proved the recovery of plain and blood stained earth by the police and proved his signature on the recovery memo of the same. He submitted that his statement was recorded by the police on the same day.

In the cross examination, PW-2 admitted of being related to PW-1 as wife of PW-1 is his niece. With regard to the implication of Raju and Jitendra, PW-2 admitted that they were implicated on suspicion because of their reactions. In the cross examination for the appellant, PW-2 has denied the suggestion of not seeing the deceased child with the appellant. He also denied the suggestion that he alongwith others had beaten the appellant after he was nabbed by them.

PW-3-Gita is the witness of last seen of the accused with the deceased Karan. She deposed that on seeing the appellant taking Karan with him she asked him as to where was he taking the child, the appellant replied that he liked the child very much and was taking him to give sweets and would return back after sometime. When the first informant was searching for him and asked PW-3 about the child, she informed of having seen the child Karan going with the appellant. The child was not traceable throughout the night and in the morning she came to know that he was murdered and his dead body was found in the dairy farm. In the cross examination by accused Raju and Jitendra, she deposed that the appellant was carrying Karan in his lap and at that point of time, Jitendra and Raju were not with him. This witness was not cross examined by the accused Nemi Chand.

The learned Amicus Curie placing the statements of PW-1 and PW-2 with the two written reports submitted by them contends that the entire prosecution case is a concocted story. The FIR was lodged by PW-1 on 23.04.2009 at about 7.15 AM with the assertion that he found the dead body of his son lying in the dairy farm in the same morning on the information given by those persons who used to go to the said place to toilet. PW-2, on the other hand, deposed that he alongwith the first informant was searching for the child when the first informant went to the police station to lodge the report. He alongwith Sheru, thereafter, nabbed the appellant near Sewla tempo stand and after confession of the appellant they took him to the spot of occurrence where they found the dead body. Whereas in his written report, PW-2 states that he found the appellant at about 7.30 AM at the Tempo stand. .

Analyzing the said statement, learned Amicus Curie submits that this much can be found that till the FIR was lodged by the father of the deceased the dead body of the victim was not found. Pointing out these contradictions in the versions of the PW-1 and PW-2, learned Amicus Curie submits that there is a doubt about the time of lodging of the FIR. The FIR is an ante-timed report. There is also a doubt about the place of arrest of the accused. The PW-2 is the creator of the story. He has first created the story of last seen and, thereafter, having caught the accused in the next morning. The story of confession of the crime by the accused narrated by PW-2 is nothing but his overzealous attempt to solve the case on his own.

It is contended that in any case, the statement of PW-2 cannot be relied so as to implicate the accused. The extra-judicial confession of the accused before the PW-2 is another attempt to solve the crime on his own. The credibility of this witness, thus, is highly doubtful. Moreover, he is directly related to the first informant and is an interested witness. Reliance is placed upon the judgments of the Apex Court in Nizam & another Vs. State of Rajasthan9, Sahadevan & another Vs. State of Tamil Nadu10, and Kanhaiya Lal Vs. State of Rajasthan11 to submit that it is dangerous to rely on the evidence of the prosecution witnesses of the accused last seen together with the deceased as his deposition is full of contradictions. The first link of the chain is, thus, broken.

As the chain of circumstances does not even start without doubt, there is no question of its completion to lead to the conclusion of guilt of the accused. The benefit of doubt has to go to the appellant.

Learned AGA on the other hand, placed reliance on the judgement of the Apex Court Vasanta Sampat Dupare Vs. State of Maharashtra12 and submitted that it was a prompt FIR and the police reached the spot immediately, thereafter, found the dead body and conducted the inquest in the presence of the witnesses.

Testing these submissions, carefully analyzing the occular evidences, certain relevant facts of the prosecution story are to be noted hereunder.

The consistent stand of the first informant PW-1 is that he was not at his home on 22.04.2009 when his son had gone missing. He was informed by his wife for his son being missing as soon as he reached home in the late evening. When he was searching for the child, his neighbors Geeta, Pappu and Sheru had informed that the appellant who was also a resident of the locality, took the child with him towards the road. Geeta-PW-3 and Pappu-PW-2, the witnesses of last seen together of the deceased and the accused had deposed that the appellant was carrying the child in his lap. PW-1 immediately went to the house of the appellant to inquire about his child but did not found the two (accused and the victim) there. On the next morning, the dead body of the child was found in a field near the dairy farm on information given by the persons who used to go there every morning for their daily chores.

On knowing this fact, the PW-1 alongwith other persons went to the spot and found the dead body of his son lying there. Leaving the body on the spot, he immediately went to the police station to lodge FIR. In the FIR, the PW-1 had reported that the appellant was author of the crime and the child was sexually assaulted before causing him to death. PW-2 is the witness who was accompanying PW-1 throughout the search of the child since the evening of 22.04.2009 till the dead body was found on 23.04.2009 in the morning. It has also come in evidence that while searching for the child, they were also looking for the appellant so as to know the whereabouts of the child as he was last seen with him.

During the search, the appellant was found roaming near the tempo stand by PW-2. It has come in the statement of the Investigating officer, PW-8 that the appellant was not arrested by the police but he was caught by the witnesses Pappu and Sheru at about 7.30 AM on 23.04.2009. The recovery memo of the plain and blood stained earth collected from the sight of the occurrence (exhibit-Ka-5) records presence of the appellant and that the place of occurrence was pointed out by him, though it does not bear signature of the appellant. The arrest and the recovery memo of clothes of the appellant (exhibit Ka-16) contains the statement that the accused was brought on the spot by the witnesses and was arrested by the police in their presence at about 11 AM. At the time of arrest of the accused, he was wearing a jeans and cotton shirt which were having blood stains. When inquired from him, he admitted that he was wearing the same clothes on the previous night and the blood stains were the result of the crime committed by him. After arrest of the accused, his clothes were sealed. The recovery and arrest memo (exhibit Ka-16) bears the signatures of the witnesses Pappu, Sheru and also of the appellant. It also contains a note of the copy thereof being received by the appellant. From the analysis of the said facts, it is evident that the prosecution has been able to establish the fact that the accused was arrested on 23.04.2009 itself, after the FIR was lodged. These circumstances were put to the accused while recording his statement under Section 313 Cr.P.C. He denied each and every circumstance by simply saying "it is wrong" and "false statement has been given".

When asked to clarify the circumstances why he was implicated, he simply stated that he was innocent; he did not take Karan with him nor murdered him after committing unnatural sexual offence.

It is noteworthy that PW-3, the witness of last seen was not cross examined by the appellant nor any such circumstances was placed by the defence which would shake the credibility of this witness.

The learned Amicus curie has pointed out certain contradictions in the statements of PW-1 and PW-2, which in the opinion of the Court are minor contradictions. More-so, in view of the consistent stand of PW-2 that the accused was caught by him and Sheru and was brought to the spot of crime when he was arrested by the police, there might be some minor contradictions in the statements of PW-1 and PW-2 as to exactly when PW-1 went to the police station for lodging of the FIR but that fact by itself would not make the statement of PW-2 doubtful or incredible. Analyzing the statement of PW-2, relevant is to note at the cost of repetition that he states that the place of occurrence of the incident was shown by the accused to them after he was caught. The recovery memo of clothes of the accused contains the signature of the accused and the statement which also proves that the accused was arrested by the police at about 11.00 PM when he was brought by the said witness with another person Sheru on the spot of occurrence of crime. The fact whether they took the accused directly to the police station or to the place of occurrence where the police was present, is not of much significance as the presence of police on the spot is further proved from the time of the inquest which had commenced at about 8.45 AM and completed at 10.45 AM on 23.04.2009.

In addition to these facts, the prosecution witness (PW-2) who has deposed having last seen the deceased with the accused had no enmity with the accused. Suggestion of any such enmity was emphatically denied by PW-2. In his statement under Section 313 Cr.P.C the accused has also not given any such suggestion. The mere fact that the PW-2 is related to the first informant PW-1 would not make him a tainted witness.

The time gap between the deceased having last seen with the accused and his dead body having been found in the field is so small that possibility of any person other than the accused being the author of the crime is completely ruled out. Further, there is no suggestion of enmity between the first informant and the accused. They were neighbors and the accused was very well known to the deceased child. The child had gone with the accused in the relationship of trust which fact cannot be doubted for the aforesaid reason. The heinous offence of anal intercourse with a five years old child had been committed before he was battered to death. There are marks of struggle of child on his dead body. The injuries on the person of the child and the evidence collected from the place of occurrence shows that the child was battered to death. The dead body was found in a field nearby the place of occurrence. It is not understandable as to why the first informant who is the father of the deceased would leave the real culprit go scot-free and would implicate his innocent neighbor. The incident had occurred at a lonely place in the late evening. There was no possibility of they (the accused and the victim) having been seen by any passerby or offence having been committed by any other person than the appellant.

The clothes of the accused and the deceased were sent for chemical examination and the report of the laboratory indicates that human blood was found on those articles .

Thus, the occular evidences brought home by the prosecution prove the guilt of the accused. The occular evidences are supported by the medical evidence which confirms the time and the manner in which the crime was committed. The version of the FIR that the child was sexually assaulted by commission of unnatural intercourse with him and was battered to death stands proved form the occular as well as medical evidence.

The prosecution has established the case set up by it by reliable and clinching evidences and the circumstances brought home form a chain of events which unerringly points towards the guilt of the accused. The circumstances so put together cannot lead to any other hypothesis than that of the guilt of the accused. The dead body of the child was found in the morning and arrest of the accused was also made on the same day.

One more circumstance which provides aid to the prosecution evidence of the guilt of the accused is his confession of commission of crime.

Though much credence cannot be added to the extra-judicial confession of the accused made to PW-2 who caught him and brought to the police. However, looking to the circumstances that the accused was roaming around in blood stained clothes after commission of the crime and was caught in the morning, it appears that he was in a state of remorse and there was a possibility that he would have disclosed to his neighbors that he was the author of the crime and that the crime was committed by him in a state of mania.

The submission of learned Amicus Curie is that the guilt of the appellant cannot be established by alleged extra judicial confession made by him to PW-2. Submission is that the statement of PW-2 in this regard is full of contradictions and an overzealous effort to solve the case.

The said statement has been brought on record by a written report submitted by PW-2 after the accused was caught by the said witness with another person Sheru. The said report is in writing of PW-2 and he had admitted that it was given on the asking of the police and was written in the police station.

In the opinion of the Court, this report, though signed by the appellant, but much credence cannot be given to it for the reason that it was not specifically put to the appellant while recording his statement under Section 313 Cr.P.C. The question no.3 put to the accused reads as under:-

"प्रश्न-3 अभियोजन साक्षी संख्या-2पप्पू ने अपने साक्ष्य से तहरीर प्रदर्श क-4 तथा फर्द खूल आलूदा व सादा मिट्टी की फर्द प्रदर्श क-5 को साबित किया है। इस संबंध मे आपको क्या कहना है? "

The said question is too long and vague. The written report exhibit-Ka-4 though was put to the accused while asking the said question but a specific question with regard to his extra-judicial confession made to the witnesses PW-2 was not put to him with the further caution that it may go against him. The question no.3, thus, has not been properly framed and therefore, the answer to it in denial as 'wrong' would be taken as such.

Even otherwise, it is settled law that the extra judicial confession is a weak piece of evidence and require appreciation with great deal of care and caution before it is relied upon by the Court. It will have to be proved like any other fact. It can be taken into consideration after subjecting the evidence of the witness to whom it has been made to a rigorous test on the touch stone of credibility. Moreover, when it is found that it was not properly put to the accused while recording his defence under Section 313 Cr.P.C, it cannot be relied on.

In the said circumstances, though the credibility of witness PW-2 to whom the accused made extra-judicial confession is not doubtful; as also the circumstances in which the accused was caught in the morning may lead to an inference that he might have admitted his guilt before PW-2, but much credit cannot be given to the said confession as it has not passed the rigorous test on which it was required to be tested, it cannot be said to have passed the test of credibility.

The legal principle for acceptance of extra-judicial confession has been laid down by the Apex Court in Sahadevan & another Vs. State of Tamil Nadu13, Pakkirisamy Vs. State of Tamil Nadu14, State of Rajasthan Vs. Raja Ram15 and Kusuma Ankama Rao Vs. State of Andhra Pradesh16 .

For the above discussions, we arrive at the conclusion that the prosecution has established the guilt of the accused beyond all reasonable doubts . There is no infirmity in the judgment and order dated 16.07.2011 passed by the trial court. The appeal is without merit and deserves dismissal.

The appellant is in jail. The appellant shall serve out the remaining sentence. Office is directed to communicate this order to the court concerned for compliance forthwith. The lower court record be sent back.

Sri Avinash Jaiswal, learned Advocate who was appointed as Amicus Curiae on behalf of the appellant has assisted the Court in hearing of the present Jail Appeal. For his valuable assistance, the Court quantifies Rs.15,000/- to be paid to Sri Avinash Jaiswal, Advocate towards fee. The said payment shall be made to the learned Advocate by the Registry of the Court within the shortest possible time.

Order Date;-24.09.2018

Himanshu