Mohd. Shareef @ Nanhe vs State Of U.P.
2021 Latest Caselaw 6152 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

  Judgment reserved on: 19.02.2021
 
	Judgment delivered on :11.06.2021
 
Court No. - 2
 

 
Case :- CRIMINAL APPEAL No. - 894 of 2018
 

 
Appellant :- Mohd. Shareef @ Nanhe
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Jail Appeal,Sharad Dixit Amicus Curia
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajan Roy,J.

Hon'ble Saurabh Lavania,J.

Heard.

This is an appeal under Section 374(2) Cr.P.C. challenging the judgment and order dated 27.08.2016 passed by Special Judge/, (EC Act)/ Additional Sessions Judge, Court No. 4, Unnao in Sessions Trial No. 309 of 2012; State of U.P. Vs. Mohd. Shareef @ Nanhe arising out of Case Crime No. 979 of 2012, under Sections 377/511, 302 and 201 IPC.

The appellant is in jail.

The prosecution story in nutshell is that Ashish @ Majnu S/o Akhilesh Kumar Sahu and Poonam Sahu went missing at 10.00 a.m on 21.04.2012. On 24.04.2012 his body was found in the agricultural field of Mathura Dhanuk in a yellow fertilizer sack which was identified by his father Shri Akhilesh Kumar Sahu as his son and accordingly a recovery memo was prepared. Inquest was conducted on the same day between 8.25 a.m. to 10.00 a.m. The inquest report mentioned that the body did not have any clothes below the waist. The body was sent for postmortem which was conducted on the same day at 3.45 p.m.

As per postmortem report the following injuries were detected on the body of the deceased:-

"Anti-Mortem Injury

1- Ligature Mark present in size 18 cm x 0.5 cm Horizontal and continous, Fracture of Hyoid bone present around the neck, 3 cm from Rt. Ear, 6 cm from Chin, 6 cm from Left ear

2- Contusion size 12 cm x 7 cm present in left side of scalp, 6 cm from left ear."

On internal examination Loosening of suture of scalp and Hyoid bone Trachea was detected as congested apart from other parameters. Cause of death was mentioned as due to Asphyxia as a result of Antemortem strangulating.

A written ''tehrir' was submitted by the father on the basis of which Chik F.I.R. and GD entry was made and an F.I.R. was lodged at 8.25 a.m. on 24.04.2012 itself.

The statement of father PW-1 was recorded on 24.04.2012 itself. Statement of PW-3 the mother was recorded on 15.05.2012.

On 03.06.2012 the appellant accused was arrested and it is said that on his pointing the undergarment of the deceased child was recovered from under the Khajoor Tree behind a room where the accused resided.

After investigation a charge sheet was filed by the Investigating Officer against the appellant under Sections 302, 201, 377, 511 IPC on 21.02.2013, before the Magistrate.

The Magistrate Committed the case for trial to the Sessions Court on 12.09.2012.

On 21.02.2013 the Sessions Court framed charges against the appellant as under:-

"vkjksi

eS jk?kosUnz dqekj] l= U;k;k/kh'k] mUuko]

vki% eks0 'kjhQ mQZ uUgs

ij fuEu vkjksi fuEuor~ vkjksfir djrk gwa%&

1- ;g fd fnukad% 21-04-2012 dks le; 10 cts fnu cgn eksgYyk [ktqfjgk ckx [ksr eFkqjk /kkuqd] vUrZxr Fkkuk dksrokyh] mUuko] ftyk mUuko ds vUrZxr vkius oknh vf[kys'k 'kkgw ds iq= vk'kh"k mQZ etuw mez 08 o"kZ ds lkFk izd`fr dh O;oLFkk ds fo:) LosPN;k bfUnz; Hkksx djus dk iz;kl fd;kA bl izdkj vkius Hkk0n0la0 dh /kkjk&[email protected] ds vUrZxr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds laKku esa gSA

2- ;g fd fnukad% 21-04-2012 dks le; 10 cts fnu ls fnukad 24-04-2012 ds e/; cgn eksgYyk [ktqfjgk ckx] [ksr eFkqjk /kkuqd] vUrZxr Fkkuk dksrokyh] mUuko] ftyk mUuko ds vUrZxr vkius oknh vf[kys'k 'kkgw ds iq= vk'kh"k mQZ etuw mez 08 o"kZ dh gR;k dj nhA bl izdkj vkius Hkk0n0la0 dh /kkjk&302 ds vUrZxr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds laKku esa gSA

3- ;g fd fnukad% 24-04-2012 dks le; vKkr cgn eksgYyk [ktqfjgk ckx] [ksr eFkqjk /kkuqd] vUrZxr Fkkuk dksrokyh] mUuko] ftyk mUuko ds vUrZxr vkius oknh vf[kys'k 'kkgw ds iq= vk'kh"k mQZ etuw mez 08 o"kZ dh gR;k dj] fd, x, vijk/k ds lk{; dk foyksiu djus ds vk'k; ls] e`rd dh yk'k dks fNik fn;kA bl izdkj vkius Hkk0n0la0 dh /kkjk&201 ds vUrZxr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds laKku esa gSA

,rn~}kjk funsZf'kr fd;k tkrk gS fd mDr vkjksiksa gsrq vkidk fopj.k bl U;k;ky; }kjk fd;k tk,A

gLrk{kj& viBuh;

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fnukad% 21-02-2103  		     l= U;k;k/kh'k] mUukoA
 
	vkjksi fopfjr dj vfHk;qDr dks i<+dj lquk;k ,oa le>k;k x;k] ftlls mlus bUdkj fd;k rFkk fopj.k dh ekax dhA 
 
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						[email protected]								      ¼jk?kosUnz dqekj½
 
fnukad% 21-02-2103  		   l= U;k;k/kh'k] mUukoA" 
 
	The appellant-accused denied the charges and demanded trial. Accordingly, he was put to trial.
 

Exhibit Ka-1 is the written report submitted by PW-1 regarding the incident. The postmortem is Exhibit Ka-5. Exhibit Ka-2 is the memo of recovery of the deceased's body. Exhibit Ka-3 is the memo of recovery of undergarments of the deceased on the alleged pointing of the appellant-accused. The Inquest Report is Exhibit Ka-4. Exhibit Ka-12 is the site plan pertaining to the recovery of the deceased's body. Exhibit Ka-13 is the site plan pertaining to the recovery of the undergarment of the deceased on the pointing of the appellant accused.

The prosecution produced the following witnesses in support of its case:-

PW- 1 Akhilesh Sahu, the informant and father of the deceased child.

PW- 2 Dr. Om Prakash, the Doctor who conducted the postmortem.

PW- 3 Poonam, the mother of the deceased child.

PW- 4 Pankaj Jaiswal, the witness to the Inquest Report.

PW- 5 Amarnath Yadav, Head Moharrir who accepted the written report from the informant, prepared the Chik Report and made necessary entries in the General Diary. He has proved the said document. PW- 6 Mukesh Dwivedi and PW- 7 Awadesh Kumar Yadav are witnesses to the alleged extra judicial confession, but both of them have turned hostile and the trial Court has recorded a finding that the extra judicial confession was not proved.

In this very context it is relevant to refer to the trial Court judgment which on an appreciation of facts and evidence before it, found the chain of events conclusively proved and pointing towards the guilt of the appellant as under:-

"26& i=koyh ij fo|eku leLr lk{;ksa ds fo'ys"k.k ls fuEu fu"d"kZ fudyrs gSa %&

1& ?kVuk ls iwoZ Hkh vfHk;qDr }kjk e`rd ds lkFk v'yhy gjdr djus ds rF; dk iq"Vhdj.k rF;kRed lk{khx.k ds c;ku ls gks jgk gSA

2& vfHk;qDr dh fu'kkunsgh ij e`rd ds v.Mjfo;j dk cjken gksus ds lEcU/k es vfHk;kstu lk{kh la0&1 vf[kys'k lkgw o vfHk;kstu lk{kh la0&3 Jherh iwue dk lk{; fo'okl iSnk djus okyk lk{; gSA

3& e`rd dk vfHk;qDr ds ?kj ?kVuk ls iwoZ vkus tkus dk rF; i=koyh ij miyC/k lk{; ls iq"Vhd`r ,oa izekf.kr gSA

4& vfHk;qDr dh fu'kkunsgh ij e`rd ds v.Mjfo;j dh cjkenxh ls ;g rF; iq"Vhd`r ,oa izekf.kr gS fd ?kVuk ds le; vfHk;qDr }kjk e`rd ds lkFk izd`fr fo:) vijk/k dkfjr djus dk iz;kl fd;k x;kA

5& e`rd ds vkf[kjh ckj vfHk;qDr ds lkFk ns[ks tkus ds rF; dh iqf"V ih0 Mcyw0&3 Jherh iwue ds c;ku ls izekf.kr gSSA

6& vfHk;kstu i{k }kjk izLrqr dh x;h lk{; ls izLrqr izdj.k es vfHk;qDr dh vijkf/kd lafyIrrk izekf.kr gks jgh gSA"

The contention of learned Amicus appearing for the appellant-accused Sri Sharad Dixit may be summarized as under:-

"(i) The boy is alleged to have gone missing on 21.04.2012 at about 10.00 a.m. but no F.I.R./Complaint was lodged by the parents. (iv) The F.I.R. was ultimately lodged on 24.04.2012 against unknown persons and even at this stage no suspicion was raised by the parents against the appellant-accused. (iii) The alleged disclosure statement which is a prerequisite for any discovery/recovery admissible under Section 27 of the Evidence Act, 1872 was never recorded, therefore, the consequential discovery/recovery, if any, is of no legal significance and this breaks the alleged chain of events. (iv) Nobody saw the boy with the appellant. (v) Injury no. 2 as mentioned in the postmortem report has not been explained. (vi) The alleged recovery was made from an accessible place, therefore, it was not reliable. (vii) The recovery of alleged white ''chaddhi' does not tally with the statement of recovery of ''nekar' as mentioned in the recovery memo and testimonies of witnesses which are contradictory. (viii) No independent witness to the recovery memo nor the Investigation Officer was examined by the prosecution. (ix) There are improvements in the testimonies of PW-1 and PW-3. (x) PW-3 in her statement before the police under Section 161 Cr.P.C. did not say that she saw her son with the appellant at about 10.45 a.m. on 21.04.2012, but, in the testimony before the Court she has said so which is impermissible. Extra judicial confession was not found proved. There are contradictions in the testimony of PW-1 and PW- 3. (xi) The Investigating Officer himself did not enter the witness box. (xii) The case being one of circumstantial evidence the chain of events not being complete the conviction of appellant-accused by the trial Court is patently erroneous and unsustainable in law. (xiii) As per postmortem report the time of death was 4-6 days ago and the postmortem was conducted on 24.04.2012 at 3.45 p.m., therefore, the death according to it occurred prior to 21.04.2012. (xiv) PW-1 himself in his cross-examination did not support the prosecution story and had veritably turned hostile.

(xv) He has relied upon the decision reported in 2017 (16) SCC 353; Ganpat Singh Vs. State of Madhya Pradesh, 2014 (14) SCC 609; Vijay Thakur Vs. State of Himanchal Pradesh, 1978 (4) SCC 119; Chandran Vs. State of Tamil Nadu, (2016) 4 SCC 96; Shahid Khan Vs. State of Rajasthan in support of his contention.

In response learned A.G.A. Ms. Smriti Sahai contended that the case at hand is one of gruesome murder of eight year old boy for lecherous motive. PW-1 has categorically stated that she had seen her son with appellant at 10.45 on 21.04.2012. The defence never confronted her in this regard by showing her the statement made before the police under Section 161 Cr.P.C., therefore, now, it is not open for the appellant- accused to challenge the said testimony. Exhibit Ka-13 which is the site plan pertaining to recovery of undergarment of the deceased child from garbage under a Khajoor tree situated behind back of a room where the appellant lived has been admitted on behalf of the accused without denying its contents and as the said document contained a recital that the recovery was made on the pointing of appellant-accused, therefore, the contents have also been admitted and there is nothing left to be proved and merely because the Investigating Officer has not been examined it has no material adverse bearing on the prosecution story in the face of such admission. In this regard reliance has been placed on Section 294 Cr.P.C. She also referred to the answer of the accused to question put by the Court to him under Section 313 after Question No. 7 and before Question No. 8, regarding the prosecution documents having been admitted by his counsel to which he responded by saying that he had nothing to contend. The documents were admitted, therefore, merely because the Investigating Officer had not entered the witness box would not be fatal in the case. She read testimonies of PW-1 and PW-2 extensively to bring home the point that testimonies of these two witnesses were sufficient to convict the appellant, especially in view of the documents admitted by him on his behalf. She also relied upon the postmortem report and the opinion of the Doctor, PW-2 which according to her completed the chain of events and established the commission of offence by the appellant-accused. In the cross examination of PW-1 by the A.D.G.C. (Criminal), he has categorically stated that it is correct to say that the accused had physically abused his son and murdered him, therefore, any contrary statement in the examination-in-chief was of no legal consequence. She submitted that the boy had been physically abused by appellant- accused and when he started crying the appellant strangled him to death and then threw his body in a sack and hid his undergarment behind his room. In support of her contention she relied upon the decisions reported in (1999) 4 SCC 370; State of Himachal Pradesh Vs. Jeet Singh, (2012) 11 SCC 205; Sunil Clifford Daniel Vs. State of Punjab, 2014 AIR SCW 3630; Mahavir Singh Vs. State of Haryana, 1983 Crl. L.J. 487; Shaikh Farid Hussinsab Vs. The State of Maharashtra and AIR 1960 SC 1125(V 47 C 198); State of Uttar Pradesh Vs. Deoman Upadhyaya.

The case at hand is one of circumstantial evidence. It is therefore fruitful to refer to the cardinal principles regarding appreciation of circumstantial evidence as postulated in Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 which are as under:-

"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ''may be' fully 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 explainable 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

(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."

Medical evidence in the form of Postmortem report which has been proved by PW-2 the Autopsy Surgeon who conducted postmortem and his testimony in this regard establish that the cause of death of the deceased was Asphyxia as a result of ante-mortem strangulation. This evidence proves that the deceased was murdered.

As regards the contention of learned counsel for the appellant based on the duration of death which is mentioned on the first page of the postmortem report as 4 to 6 days that the postmortem having been conducted on 24.04.2012 the death of the deceased occurred prior to 21.04.2012 when he is alleged to have gone missing, thereby, belying the prosecution story we are of the opinion that medical opinion on this issue is not conclusive. It does not necessarily mean that the death had taken place prior to 21.04.2012. It in fact points to the death having taken place a few days prior to the time of discovery of the body on 24.04.2012. In his testimony PW-2 has stated that death could be caused from the injuries on the neck of the deceased and other injuries, on 21.04.2012. The defence did not cross-examine PW-2 on this count, therefore, the aforesaid evidence establishes the commission of offence of culpable homicide amounting to murder. The circumstance of culpable homicide on or after 21.04.2012 is amply proved from the circumstances and evidence on record and the contention to the contrary is not acceptable.

PW-3 the mother of deceased has deposed that she had seen her child with the appellant at about 10.45 a.m. on the day he went missing i.e. 21.04.2012. She has also stated that her son used to visit the appellant's house often, therefore, she did not say anything at that moment. PW-3 was not confronted in her cross-examination by the defence about any omission or contradiction or improvement in her statement in this regard viz-a-viz the one given by her before police under Section 161 Cr.P.C. In fact in her examination by the defence she has reiterated that she had seen the appellant on the day of the incident. Of course she has not mentioned that she saw the child also, but, then, there is no contradiction or denial in this regard, as, there is nothing in the cross examination to suggest that she went back or contradicted herself with regard to her statement in her examination-in-chief that on the day of incident she had seen her child with the appellant-, Shareef, at 11.45 a.m. as already mentioned hereinabove or that she had only seen Shareef and not her son. In view of this, having failed to confront PW-3 in terms of Section 145 Cr. P.C. read with Section 162 Cr.P.C. it is not open for the appellant to raise a plea before this Court in this regard nor is it open for this Court to suo motu see the statement made by PW-3 under Section 161 Cr.P.C. The statement of PW-3 regarding having seen her deceased child lastly with the appellant on 21.04.2012 at about 10.45 a.m. remains intact and stands proved by the testimony of PW-3. Thus, the circumstance of the deceased child having been seen lastly with the appellant is amply proved from the testimony of PW-3 and defence has not been able to dislodge the said testimony in any manner.

In this view of the matter, it was incumbent upon the appellant to have offered an explanation in this regard in terms of Section 106 of the Evidence Act, but, he has not offered any explanation on being seen with the deceased child lastly on the date of incident. In his statement recorded under Section 313 Cr.P.C. he has stated that he has been falsely implicated on account of enmity without mentioning as to what was the enmity about and with whom. There is no other evidence on record to show that there was any enmity of the appellant with PW-1 and PW-3. There is also no reason as to why PW-1 and PW-3 would falsely implicate the appellant for the murder of their child. Thus, the failure of the appellant to offer an explanation much less a satisfactory one with regard to the aforesaid last seen circumstance in terms of Section 160 of the Evidence Act is also a circumstance which goes against the appellant and in favour of the prosecution.

The fact that this relevant circumstance that PW-3 had seen her son with the appellant on 21.04.2012 was not mentioned in the F.I.R., does not materially prejudice the prosecution's story for the reason, the F.I.R. was lodged by the father of the deceased i.e. PW-1 and both PW-1 and PW-3 are illiterate persons as has come in their testimony. Moreover, they did not suspect the appellant initially which is quite possible considering the level of their awareness, as, PW-1 was a labourer and PW-3 is his illiterate wife.

PW-3 has categorically stated in her testimony that about 15 days prior to the date of incident her deceased child had told her that the appellant Shareef used to kiss him and used to remove his ''Chaddhi'. The exact testimony of PW-3 in this regard is to the effect - "?kVuk ds igys esjs yM+ds us crk;k Fkk fd 'kjhQ ckok esjs pqEeh ysrs gS vkSj esjh p< k fn;k Fkk fd ckok gS blfy;s pqEeh ysrs gksaxsA". In her cross examination by the defence she has stated that the deceased child had told her about the aforesaid conduct of the appellant 15 days prior to the incident. She has further stated that she had told the Daroga about this fact and if the Daroga had not mentioned it in her statement, then, she could not tell the reason for the same. However, PW-3 was never shown her statement under Section 161 Cr.P.C. by the defence/appellant, therefore, she was not confronted appropriately in terms of Section 162 read with Section 145 Cr.P.C. and the law laid down by the Supreme Court in the case of V. K. Mishra and Another Vs. State of Uttrakhand and Ors. reported in (2015) 9 SCC 588 on this count. Reference may be made in this regard to Para 19 of the said judgment, which reads as under:-

"19. In the case at hand, PW-1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW-1 nor the investigating officer were confronted with the statement and questioned about it, PW-1's statement recorded under Section 161 Cr.P.C. cannot be looked into for any purpose much less to discredit the testimony of PW-1 and the prosecution version."

This procedure prescribed by law was not adhered, therefore, it is now not open for the appellant to contend before this Court that there was an improvement/omission or contradiction in this regard in the testimony of PW-3 and in the absence of such confrontation this Court can not suo motu make use of statements made before the police, as, has been held in the aforesaid judgment. The said testimony of PW-3 on this aspect, therefore, remains intact as it is and there is no reason for this Court to disbelieve it. The testimony appears to be truthful and natural. Why would a mother make such a statement in respect of her child and the appellant when there is no reason for her to falsely implicate the latter. Thus, the conduct of the appellant prior to commission of the crime viz-a-viz the deceased and his motivation in this regard is amply proved from the testimony of PW-3.

PW-1 has also testified on similar lines about his deceased son. In fact exact testimony of PW-1 in this regard is to the effect - "eqfYte eks0 'kjhQ @ uUgs dks eSa tkurk gwa ;g dY;k.kh [ktqfj;k ckx esa jgrk FkkA mldh mez yxHkx 50 o"kZ gSA ewrd vk'kh'k @ etuw eqfYte dks ckck dgrk FkkA vkSj ckck ds ;gka tkrk tkrk FkkA esjs yM+ds pSr ds uojk+++= ds igys fnu crk;k Fkk fd ckok us esjh pM~ k;k Fkk fd ckok us ,slk galh etkd esa fd;k gksxkA mDr ckr yM+ds us esjh iRuh iwue dks Hkh crkbZ FkhA" Of course PW-1 in his cross-examination by the defence did not support the prosecution story, but, in the subsequent cross-examination by ADGC (Criminal) on the same day he has reiterated his testimony as recorded on 26.11.2013. We can not loose sight of the fact that the cross-examination by the defence started on 26.11.2013, but, for some inexplicable reason it was resumed almost six months thereafter on 02.05.2014 against the letter and spirit of Sections 230, 231 and 309 Cr.P.C. and the law declared by the Courts that such testimony should be recorded as early as possible on day to day basis so as to avoid any pressure or influence being exercised on the witnesses, who, in this case, even though, was the father of the deceased, was vulnerable on account of his social, educational and economic condition. Moreover, as mentioned earlier, when, on 02.05.2014, he did not support the prosecution story as aforesaid, the ADGC (Criminal) cross examined him on the same date after lunch, wherein PW-1 categorically stated- "vkt ds igys blh vnkyr esa esjk c;ku gqvk FkkA og c;ku eSus lgh fn;k FkkA fdlh ds ncko es eSus c;ku ugha fn;k FkkA" This refers to his earlier statement on 26.11.2013, as, that was the only statement recorded prior to 02.05.2014. Thus, ultimately he has supported prosecution story in his cross-examination by the ADGC (Criminal). Towards the end of such cross-examination he has also stated- " ;g ckr lgh gS fd esjs yM+ds vk'kh'k @ etuw ds lkFk eqfYte 'kjhQ us xyr dke djds mldh gR;k mldh gR;k dh gSA"

Thus, the fact that the deceased child used to visit the house of the appellant often and the deceased child had informed his parents about the appellant trying to physically abuse him, is established from the statement of PW-3 and also PW-1 which is reliable and truthful and there is no reason for this Court to disbelieve the same. Even if the testimony of PW- 1 on this aspect is kept aside for moment, the testimony of the mother PW-3, by itself is sufficient to conclusively prove the aforesaid relevant fact. This circumstance is thus also conclusively proved.

The inquest report while mentioning the condition of deceased's body states that there were no clothes on the body below the waist. The undergarment which was not found on the body when it was discovered, was subsequently discovered/recovered on the pointing of the appellant from a pit under a Khajoor tree behind the room in which the appellant resided. In this regard, in the context of Section 27 of the Indian Evidence Act, 1872 there is a disclosure statement contained in the recovery memo Exhibit Ka-3 itself, wherein it is said that while in police custody the appellant mentioned that while committing the offence and putting the body in the sack for removing it, the undergarment of the boy was left behind in the room which was put by him in a polythene bag and thrown in a pit behind his room under the khajoor tree which he could get recovered. The Investigation Officer or any of the police personnel mentioned in the recovery memo did not enter the witness box to prove the aforesaid disclosure statement, although, PW-1 has stated in his testimony that such statement was made in police custody before him. He has stated that the appellant was arrested on 03.06.2012. When he was arrested, then, PW-1 had also reached the Police Station and in his presence the appellant had confessed his guilt narrated the manner in which he committed the crime and had agreed to get the undergarments of the deceased which he had thrown recovered from the pit. The only difference is that the PW-1 had mentioned the pit near a Babool tree, whereas, in the recovery memo it is mentioned as a khajoor tree but this is a minor discrepancy which does not prejudice the prosecution case. The fact that there were no independent witnesses to the recovery memo and the Investigating Officer has not been examined, is also not of much consequence, as, there is nothing on record to show that PW-1 who is a witness to the recovery, was in any manner inimical or otherwise ill disposed so as to falsely implicating the appellant. The disclosure statement leading to the recovery of undergarment of the deceased on the information/ pointing of the appellant is thus admissible under Section 27 of the Indian Evidence Act, 1872.

Moreover, we can not loose sight of the fact that the appellant has admitted the genuineness of Exhibit Ka-13 which is the site plan for recovery of undergarment of the deceased boy on the appellant's pointing, without denying its contents. In this site plan, the place from which the appellant himself took out the undergarment of deceased Ashish @ Majnu rapped in a yellow polythene from the root of khajoor tree, is marked as ''A'. It is mentioned therein that the said spot is five paces away from the back wall of the room in which the appellant resides. The said document mentions the path taken by the appellant himself to lead the police party to the spot where the undergarment of the deceased child had been hidden by him. The fact that said garment is mentioned as ''naker' does not materially prejudice the prosecution case, as, such undergarments could be understood differently by different persons. Some could mention it as a ''chaddhi' while others as ''naker'. Having admitted the genuineness of this document as is evident from the endorsement ''genuineness admitted' by his counsel, the conduct of the appellant in leading the police party to the spot where the undergarment of the deceased child had been hidden by him and then himself taking out the undergarment from under the khajoor tree, is also admissible as evidence under Section 8 of the Indian Evidence Act, 1872. Therefore, this conduct pertaining to a relevant fact is conclusively proved. The factum of the appellant having led the police party to the spot where the undergarment was hidden as also the recovery of the undergarment from the said spot is amply corroborated from the testimony of PW-1 also in this regard who is also a witness to the recovery and a signatory to the recovery memo which he has proved. While recording statement of the appellant- accused under Section 313 Cr.P.C. a pointed query was put to him as to what does he have to say with regard to the prosecution documents having been admitted by him, his response was that he had nothing to say. The admission of Exhibit Ka-13 by the appellant as discussed hereinabove without denying its content amounts to an admission of its contents also in view of Section 294 Cr.P.C. as has been held by the Bombay High Court in the case of Shaikh Farid Hussinsab (supra) as also by Full Bench of this Court in the case of Saddiq and Ors. Vs. State reported in 1981 Cri. LJ 379 and the Full Bench of Karnakata High Court in the case of Boraiah Alias Shekar Vs. State reported in 2003 Cri. LJ 1031, therefore, merely because the investigating officer who prepared the said document was not examined, it does not make any difference to the prosecution case.

The aforesaid fact coupled with the testimony of PW-3 regarding having seen the deceased child lastly with the appellant, is a proof of circumstance which points towards only one direction i.e. the guilt of the appellant.

PW-1 has stated in his testimony that the body of the deceased was found in front of the appellant's house. In this regard, learned counsel for appellant submitted that the site plane i.e. Exhibit Ka-12 genuineness of which has also been admitted on behalf of appellant, does not mention the house of the appellant near the sight from where the body of the deceased was discovered. This, however, is not very material for the reason the site plan was prepared by the Investigating Officer and at that time there was no suspicion on the appellant. Moreover, if there is deficiency in this regard by the investigation, no benefit can accrue to the appellant. Moreover, in the cross-examination by the defence, PW-1 was never confronted on this issue as to whether the body of the deceased child was found in front of the appellant's house or not. In fact he has stated in his cross-examination by the defence on 02.05.2014 - "esjs csVs dh pkj fnu ckn ckykeÅ ykbu ds fdukjs yk'k cjken gqbZ FkhA eksgYys ds yksxks us crk;k Fkk fd cksjs esa dksbZ yk'k iM+h gSA" Thus, he clearly deposed that the body of his child was found 4 days after he went missing by the side of Balamau Line which is a reference to the railway line and when we see Exhibit Ka-13, genuineness of which has been admitted by the appellant, we find that there is a railway line towards East clearly marked as such and towards the West the room in which the appellant resided is shown, which corroborates the testimony of PW-1 that the body was found near or in front of room of the appellant. The undergarment was recovered from underneath the khajoor tree 5 paces away from the back wall of the appellant's room and is marked as ''A' in Exhibit Ka-13, therefore, the testimony of PW-1 is corroborated by Exhibit Ka-13, genuineness of which has been admitted by the appellant, therefore, this is also a circumstance which goes against the appellant and in favour of prosecution story.

The PW-1 has also testified that the accused (appellant) was absconding from the date of the incident. PW-3 also made a statement to this effect in her examination-in-chief but in her cross-examination she stated that she did not know whether Shareef was at his house after the incident or not because she had not gone towards that side. Nevertheless, as regards the testimony of PW-1 on this aspect, he was not confronted nor any suggestion was made to him to belie his testimony in cross-examination by the defence. It is true that in such cross-examination by the defence he did not support the prosecution story as regards the guilt of the appellant, but, then, in his cross examination on the same date by the ADGC (Criminal), he has reiterated his testimony recorded earlier on 26.11.2013 as noticed hereinabove. We have already dealt with this aspect of the matter earlier that the subsequent cross-examination by the defence took place almost six months after the examination-in-chief and start of cross-examination by the defence on 26.11.2013 and that in any case when PW-1 was cross-examined by the ADGC (Criminal) he reiterated his testimony as recorded on 26.11.2013 as true and correct.

In view of the above discussion, in the absence of any explanation having been offered by the appellant in terms of Section 106 of the Indian Evidence Act, 1872, the chain of events stands conclusively and completely proved and the circumstantial evidence points towards only one direction i.e. the guilt of the appellant in having committed the crime punishable under Section 377, 302 and 201 IPC. The fact that the undergarment of the deceased child was hidden by the appellant and ultimately recovered by him on his pointing, establishes the commission of unnatural act by the appellant upon the deceased child's body. The fact that the deceased child's body was found in a yellow fertilizer sack establishes the conduct of the appellant in trying to destroy and hide evidence, therefore, the offences punishable under Section 377, 302 and 201 IPC are proved against the appellant beyond reasonable doubt based on the circumstantial evidence discussed hereinabove.

It is indeed disturbing that the Investigating Officer did not enter the witness box inspite of notices having been issued under Section 350 Cr.P.C. by the trial Court, but, this is a fact based on which no benefit can be given to the appellant, as, doing so would amount to putting a premium on such negligence/misconduct which may be deliberate or otherwise, especially as, the guilt of the appellant is proved on the basis of the available evidence, as already discussed.

As regards the contention of the appellant that no F.I.R. was lodged till 24.04.2012, although, the boy went missing on 21.04.2012, PW- 1 has testified that after the boy went missing he had approached the police station, therefore, it appears that considering the social, educational and economic status of PW-1, his oral report was not taken seriously by the police and the F.I.R. was not lodged as often happens in our society, therefore, no mileage can be drawn by the appellant on this count. The fact that the F.I.R. was lodged against unknown persons also does not benefit the appellant considering the social and economic status of PW-1 and PW-2 as also the fact that they were illiterate and rustic innocent persons, who may not have suspected the appellant at first.

As regards the contention of the appellant's counsel that the statement of PW-3 was recorded belatedly we do not not find that PW-3 was ever confronted with this aspect of the matter. Had she been confronted, she may have offered an explanation. In fact the Investigating Officer, had he entered the witness box, he could have been questioned on this issue, but, in his absence no benefit can accrue to the appellant as such. PW-3 was available all the time for recording of her statement and if the Investigating Officer did not record it at the earliest, this by itself does not help the appellant in the absence of any circumstance or reason for false implication of the appellant by PW-3.

As regards injury No. 2 not having been explained, the said injury is a contusion and it is quite possible that while throwing the body or putting it down or while commission of the crime, the same may have been caused and this also by itself does not lead the Court to discard the entire prosecution story.

For all the aforesaid reasons we affirm the judgment of the trial Court dated 27.08.2016 and the sentence imposed by it. The appeal fails and is dismissed.

Learned Amicus Shri Sharad Dixit, who argued the matter on behalf appellant, is said to have left for heavenly abode on account of Covid-19 infection, before the judgment could be pronounced, therefore, we provide that the fee payable to him would be paid by the High Court Legal Services Authority to his wife or such legal heir as may be entitled to the same in law. We further provide that the payable fee shall be Rs.25,000/- for the entire case.

The Senior Registrar of this Court at Lucknow shall communicate to this order to the High Court Legal Aid Services Authority as also to the wife of the deceased Advocate. The Authority shall submit proof of payment within a period of one month of receipt of this judgment to the Senior Registrar of this Court at Lucknow.

A copy of this judgment shall also be communicated to the appellant who is in jail through the C.J.M. concerned or the trial Court, as the case may be.

Lower Court Record also be sent back to the trial Court for such action as may be necessary.

 (Saurabh Lavania,J.)        (Rajan Roy,J.)
 
Order Date :- 11.06.2021
 
R.K.P.