Piyush Kumar Verma vs State Of U.P.
2021 Latest Caselaw 6577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. 48
 

 
Case :- CRIMINAL APPEAL No. - 7507 of 2018
 

 
Appellant :- Piyush Kumar Verma
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sarvesh
 
Counsel for Respondent :- G.A.,Lal Mani Singh,Raghuvir Sharan Singh
 

 
With
 

 
Case :- CRIMINAL APPEAL No. - 7755 of 2018
 

 
Appellant :- Sudheer Kumar Verma @ Mukesh And Anr.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sarvesh
 
Counsel for Respondent :- G.A.,Lal Mani Singh,Raghuvir Sharan Singh
 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Shamim Ahmed,J.

(As per : Hon'ble Munishwar Nath Bhandari, J.)

These two appeals have been preferred under Section 374(2) Code of Criminal Procedure against the judgment dated 05.12.2018 passed by Additional Sessions Judge/Special Judge, Scheduled Castes/Scheduled Tribes (Prevention from Atrocities) Act, Kanpur Nagar.

The appellant Piyush Kumar Verma has been convicted for the offence under Section 302 and 377 Indian Penal Code while in the connected appeal, appellants Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh have been convicted for the offence under Section 304A and 202 Indian Penal Code. The appellant Piyush Kumar Verma has been sentenced to life imprisonment with penalty of Rs. 50,000/- for the offence under Section 302 Indian Penal Code and in case of default in payment of penalty, to undergo 03 months additional imprisonment. He has been sentenced to 10 years rigorous imprisonment with penalty of Rs. 25,000/- for the offence under Section 377 Indian Penal Code and in case of default in payment of penalty, to undergo additional sentence of 01 month.

The appellants Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh have been sentenced to 01 year rigorous imprisonment with penalty of Rs. 20,000/- for the offence under Section 304A Indian Penal Code and in case of default in payment of penalty, to undergo 15 days additional imprisonment. They have been further sentenced to 03 months imprisonment with penalty of Rs. 1000/- for the offence under Section 202 Indian Penal Code and in case of default in payment of penalty, to undergo 15 days additional imprisonment. The sentence have been ordered to run concurrently.

Learned counsel for the appellants submitted that a first information report bearing No. 1029 of 2010 was registered on a written report of Sandeep Tiwari resident of Shastri Nagar, Kanpur at the instance of Sonu Bhadauria. It was stated that Sonu Bhadauria W/o Hamir Singh is resident of Roshan Nagar. She dropped her daughter Divya (the deceased) at 07:30 A.M. on 27.09.2010 in the school. The daughter (the deceased) was dropped at her residence at around 01:00 P.M. on 27.09.2010 by the female attendant of the school in critical condition. When the owner of the house in which Sonu Bhadauria was a tenant asked about the condition of the girl, attendant did not disclose any fact. The daughter was undress. Her bloodstained dress was found in the bag and in her private part, cotton and cloth were inserted. The girl was not conscious. Her body turned pale due to excess bleeding from the private part. The daughter was immediately taken to the hospital where she was declared dead and death said to have taken place almost an hour back.

On the basis of written report Exhibit A-1, the first information report was registered on the same date, i.e., 27.09.2010 at around 05:45 P.M. for the offence under Section 376, 302 Indian Penal Code against the unknown person. The report (Exhibit A-3) was prepared by Head Constable Pancham Lal and it has been disclosed in "Nakal Rapat" and, accordingly, "Rojnamcha" was prepared.

After registration of the first information report, post mortem was conducted, of which a video was prepared. The post mortem of the deceased aged about 11 years was conducted by the Board consists of four doctors. It was on 28.09.2010. The post mortem report was prepared by Dr. Sandeep Srivastava. In the post mortem report, five injuries were reported, out of which, injury no. 4 was old. The hymen of the deceased girl was found intact. No injury was found on vagina, however, her rectum was found lacerated and perforated size 2 x 1.5 cm. It was upto sigmoid colon.

The investigation was initially conducted by PW-30 Anil Kumar Singh and, later on, it was transferred to CBCID. After recording statements of the witnesses and collection of the evidence, the charge-sheet for the offence under Section 377, 302, 376(2F), 511 Indian Penal Code was submitted against the accused Piyush Kumar Verma while other accused Chandra Pal Verma, Sudhir Kumar Verma @ Mukesh Verma were charge-sheeted for the offence under Section 201, 202 Indian Penal Code apart from other charges.

After receipt of the charge-sheet, cognizance of the offence was taken by the Court of Special C.J.M., Kanpur Nagar. The case was remitted to the Court of Sessions on 09.03.2011 for trial. The trial Court framed the charges against accused Piyush Kumar Verma for the offence under Section 377, 376(2F), 302, 201 Indian Penal Code while charges for the offences under Section 304/34, 109, 201, 202 Indian Penal Code were framed against accused Chandra Pal Verma, Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh. The trial then commenced, in which, prosecution produced 32 witnesses. 40 documents were exhibited to prove their case. Four Court witnesses were examined. After completion of the prosecution evidence, the statements of the accused were recorded under Section 313 Code of Criminal Procedure. The accused produced two witnesses in defence apart from one document to prove their innocence. After completion of the trial, the accused-appellant Piyush Kumar Verma was convicted for the offences under Section 302, 377 Indian Penal Code while other two appellants, namely, Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh were convicted for the offences under Section 304A, 202 Indian Penal Code and sentenced, as mentioned earlier. Chandra Pal Verma was acquitted of the offences.

Aggrieved by the judgment of the trial Court, these appeals have been preferred.

Learned counsel for the appellants submitted that accused Piyush Kumar Verma was having excellent academic record. He did his Post Graduation in Science with first division. He was not having past history of crime. He has been made victim of unfavourable circumstances. He has been convicted and sentenced for the offence under Section 302, 377 Indian Penal Code without having any evidence against him. The judgment of the trial Court is based on surmises and conjectures. It was a case of circumstantial evidence and without there being a chain of circumstances, the appellants have been convicted.

Learned counsel submitted that the appellant Piyush Kumar Verma was not knowing the deceased Divya. He had no interaction with her at any point of time. Therefore, there was no enmity or motive or even intention of the appellant Piyush Kumar Verma for murder of deceased Divya. The appellant Piyush Kumar Verma has still been convicted for the offence under Section 302 Indian Penal Code. Learned trial Court ignored even the definition of "murder" punishable under Section 302 Indian Penal Code.

It is further submitted that the appellant Piyush Kumar Verma was running a separate school, different than the school in which incident said to have taken place. His presence at the place of the incident could not be proved by the prosecution for the offence under Section 377, 302 Indian Penal Code yet he has been convicted for those offences by misreading evidence produced by the prosecution.

The appellants were falsely implicated due to the political and social rivalry between his father Chandra Pal Verma and Sri Dharamvir Bhadauria, a B.S.P. Leader and brother-in-law of the informant Sonu Bhadauria. Due to political reasons, the Investigating Officer was pressurized to falsely implicate the appellants and, therefore, the entire investigation was manipulated. It is prima-facie proved from the fact that in the recovery memo (Exhibit A-5), two lines were added by manipulating to show the recovery of underwear of the deceased from the place of occurrence. The recovery memo (Exhibit A-5) was signed by Anamika Kushwaha and Mohita Srivastava but they did not endorse last two lines. Thereby, the recovery of the underwear of the deceased from the place of occurrence becomes doubtful yet relied by the trial Court to connect accused Piyush Kumar Verma with the crime.

Learned counsel further submitted that the deceased Divya was unwell yet dropped by complainant PW-3 Sonu Bhadauria at the school. The fact about ill-health of the deceased was proved by the statement of prosecution witness Smt. Vimla Devi (PW-4) yet it was ignored by the trial Court. It was also stated that no sperm or semen was found on the skirt of the deceased yet the trial Court has recorded finding about availability of sperm or semen on the skirt ignoring Exhibit A-12 report No. 272 Bio 10. Thus, the finding of learned trial Court is perverse.

It is further stated that act of Forensic Science Laboratory, Lucknow was also fraudulent. After collection of blood for DNA, under the order of the Court, they approached CDFD, Hyderabad for test report without any justified reason and against the Memorandum of Understanding (M.O.U.) with CDFD, Hyderabad. The M.O.U. entered between Forensic Science Laboratory, Lucknow and CDFD, Hyderabad was only for training purposes and, therefore, only the M.O.U. make a mention about collection of 300 blood samples of the population of Uttar Pradesh on random basis. The copy of the M.O.U. was produced but has been ignored by the trial Court rather it relied on the report of CDFD, Hyderabad to connect the accused with the crime. The finding was recorded by misreading of the statement of PW-23 Rajiv Paliwal, Scientist of Forensic Science Laboratory, Lucknow. He deposed that high techniques for Y-STR like power plex R.T.P.C., contifiler were not available at Forensic Science Laboratory, Lucknow, therefore, had gone to CDFD, Hyderabad. DNA test was conducted at CDFD, Hyderabad in the presence of PW-23 Rajiv Paliwal. The statement of PW-23 Rajiv Paliwal has been relied by the trial Court in ignorance of the letter dated 24.12.2012 obtained by the appellant under Right to Information Act, 2005. CDFD, Hyderabad informed that no case was registered at the laboratory out of the First Information Report No. 1029 of 2010 registered at Police Station Kalyanpur, Kanpur Nagar.

In view of the above, a fraudulent report was prepared and produced by the prosecution and relied by the trial Court to show that semen found on the underwear and skirt of the deceased was matched to DNA blood group of the accused Piyush Kumar Verma whereas no semen was found on the skirt.

The trial Court for it even ignored that as per the order, the blood sample of Piyush Kumar Verma was collected on 22.12.2010 while the Scientist PW-23 Rajiv Paliwal had gone to CDFD, Hyderabad before it, i.e., on 16.12.2010, therefore, there was no possibility of carrying blood sample of accused-appellant Piyush Kumar Verma. His blood sample was not taken on 09.11.2010. The trial Court yet recorded its finding that blood sample of 13 donors was taken by CW-3 Dr. Satish Chandra Verma in the Court of C.M.M., Kanpur Nagar on 09.11.2010. The trial Court has ignored the statement of the accused-appellant under Section 313 Code of Criminal Procedure in regard to the date of collection of blood sample only on the ground that no evidence has been produced in defence to prove that blood sample of Piyush Kumar Verma was taken on 22.12.2010 and thereby, relied on the statement of CW-3 Dr. Satish Chandra Verma.

Learned counsel further submitted that the alleged blood samples of the donors including accused Piyush Kumar Verma, Sudhir Kumar Verma @ Mukesh Verma and Chandra Pal Verma were said to be containing the case crime number as per the statement of PW-19 Dr. Ashok Kumar Jatav and PW-26 Ravi Chaturvedi. The other witness Dr. Archana Tripathi (PW-22), however, deposed that the sample received by Forensic Science Laboratory, Lucknow was not bearing the case crime number. The fact aforesaid was ignored by the trial Court though sufficient to prove that samples received by Forensic Science Laboratory were different than the sample collected by CW-3 Dr. Satish Chandra Verma. Learned trial Court should not have relied on the test reports for that reason also.

Learned trial Court even ignored the statement of PW-25 Dr. Alka Shukla who examined anal and vaginal smear of the deceased Divya and did not find any semen in it. The reference of Exhibits A-14 and A-15 was given for it. The aforesaid was sufficient to show that the offence under Section 377 Indian Penal Code was not committed by the accused Piyush Kumar Verma otherwise the presence of semen would have been found in the anal or vaginal smear of the deceased.

It is further submitted that to falsely implicate the appellant Piyush Kumar Verma, the prosecution introduced unknown mobile number. The mobile number 9451771705 was belonging to one Ravi Kumar. The prosecution could not bring any evidence about use of said mobile number by the accused Piyush Kumar Verma yet the trial Court recorded finding regarding use of said mobile number by the accused Piyush Kumar Verma and based on CDR, connected the accused Piyush Kumar Verma with the crime. The presence of the accused Piyush Kumar Verma was found nearby school at the time of incident as CDR was showing many phone calls from the aforesaid phone number to his father Chandra Pal Verma and co-accused Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh and Principal of the school. The trial Court drawn inference to connect accused Piyush Kumar Verma with the crime based on the CDR of the phone number 9451771705 as Ravi Kumar was not found at the address disclosed for obtaining SIM Card. Even his whereabouts were not found despite sending summons and even by the Process Server. It was presuming that an unknown person would not frequently talk to the father and brother of the accused Piyush Kumar Verma apart from the staff at the time of incident. The trial Court could not have recorded finding based on presumption rather it should have been based on the evidence proving the case beyond doubt.

Learned counsel further submitted that the trial Court misread the DNA report (Exhibit A-13) as the last line of the said report discloses that no firm opinion can be given regarding DNA. The trial Court yet recorded finding that semen/sperm on the skirt and underwear of the deceased was matching to the DNA of Piyush Kumar Verma. It is despite the fact that PW-22 Dr. Archana Tripathi did not specifically stated that sperm/semen was matching to DNA of the accused Piyush Kumar Verma. In view of aforesaid, this Court should interfere in the finding recorded by the trial Court as it is based on surmises and conjectures rather a perverse finding has been recorded by the trial Court. The accused should not have been convicted in absence of the evidence to prove the case beyond doubt. The trial Court was in fact annoyed with the accused-appellant. It is reflected from the fact that a stamped application of the accused Piyush Kumar Verma was torn off and thereby, the trial Court passed the judgment with bias.

It is further submitted that so far as conviction and sentence of other accused Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh are concerned, again no evidence exists against them for the offence under Section 304A, 202 Indian Penal Code. They have been convicted despite the fact that even no charge for the offence under Section 304A Indian Penal Code was framed against them. The prayer is accordingly to allow both the appeals.

The appeal is seriously contested by learned Additional Government Advocate. Learned Additional Government Advocate has made reference of the evidence led by the prosecution to prove its case beyond doubt and contested all the arguments raised by learned counsel for the appellants. To save repetition, all those arguments would be considered while discussing the arguments of learned counsel for the appellants.

Discussion and finding of the Court :

It is a case of circumstantial evidence. To find out whether the chain of circumstances has been brought by the prosecution to connect the accused with the crime, we would discuss the evidence led by both the parties by framing the subjects to find out whether prosecution could prove its case beyond doubt by making out a chain of circumstances.

Place of occurrence :

The first circumstance relevant for finding chain is the place of occurrence. The first information report and the evidence available on record shows that on 27.09.2010 at around 07:30 A.M., the deceased Divya was dropped by her mother at the school. She was pursuing her studies in Class VIth. The prosecution witnesses have proved availability of deceased Divya in the school on 27.09.2010 and she was sent back to her residence with school female attendant Parveen and Maya. They dropped the deceased at her residence at around 01:00 P.M. on the date of occurrence, i.e., 27.09.2010. The fact aforesaid has been proved by PW-3 Smt. Sonu Bhadauria apart from PW-8 Parveen, PW-9 Maya, PW-10 Rama Dave, PW-11 Sunita Mishra, PW-12 Anamika Kushwaha, PW-14 Sakshi Vishwakarma and PW-16 Ekta Yadav. PW-8 to PW-14 and PW-16 are the staff members or the student of the school belonging to the accused family. PW-4 Vimla Devi is the landlady of the house in which Sonu Bhadauria and her family were residing. She stated that on the day of occurrence, the deceased was taken to the school by her mother and was dropped back by the female attendant of the school at around 01:00 P.M. She was not knowing the names of those female attendant. The deceased was unwell on the day of occurrence yet mother dropped her at the school in the morning.

PW-8 Parveen stated that she was Female Attendant in the school which was opening at around 07:45 A.M. On the day of occurrence, she got information from the ma'am that one child is having vomit sensation. She later on was having toilet/motion. She went upstairs where deceased was found sitting in an uncomfortable position. She lifted the deceased and found that clotted blood is coming out from her vagina. It was giving foul smell. The blood spread on the skirt and school bag. She took the girl to bathroom and cleaned her with the water. The blood was still coming. She was asked to inform the deceased's mother. She visited her house but girl's mother Sonu Bhadauria was not found available. When the blood was not stopped, a cloth was inserted in vagina by Rama Ma'am. The child was then taken to her residence by her as well as PW-9 Maya. The landlady was available and on her instruction, the child was left on a cot.

The statement of PW-8 Parveen has been corroborated by PW-9 Maya regarding availability of the deceased Divya in school on the day of occurrence, i.e., 27.09.2010. She further stated about bleeding and dropping of the deceased at her residence accompanying another female attendant PW-8 Parveen. She has described the condition of the deceased. It is stated that she alongwith PW-8 Parveen had placed the socks, shoe and clothes of the child in the school bag and dropped her at her residence in an auto.

PW-10 Rama Dave has also stated about presence of the deceased in the school on 27.09.2010. She came around 07:30 A.M. The condition of the deceased was also described. She further stated that after taking the classes, saw deceased sitting in the class in an uncomfortable condition. She asked about her health and thereupon went on 4th floor to take lunch. When she came back after lunch, seen deceased lying in the classroom where Sunita Mishra, Anamika and Mohita apart from the female attendant Maya and Parveen were present. On inquiry, it came out that the girl at the age of 11 years suffered menses, therefore, need to be given first aid. She immediately went to her house to bring the cloth and the pad. The pad was placed on the vagina from where blood clots having foul smell were coming out. Looking to the condition, the deceased was sent to her residence alongwith female attendant PW-8 Parveen and PW-9 Maya. The aforesaid witnesses have supported the statement of other witnesses for presence of the deceased in the school on 27.09.2010 till she was dropped at her residence at around 01:00 P.M. The fact aforesaid has been corroborated by PW-11 Sunita Mishra, PW-12 Anamika Kushwaha, PW-13 Mohita Srivastava, PW-14 Sakshi Vishwakarma and PW-16 Ekta Yadav. The statement of those witnesses could prove the presence of the deceased in the school on the day of occurrence till 01:00 P.M. All the witnesses other than PW-4 Vimla Devi are none-else but the staff members, the employee and the student of Bharti Gyan Sthali School run by Chandra Pal Verma, i.e., accused Piyush Kumar Verma and Sudhir Kumar Verma @ Mukesh Verma's father. Thus, presence of the deceased in the school on the day of occurrence was proved by the prosecution. The fact aforesaid has not been contested by the appellant during the course of the argument.

Whether occurrence took place in the school :

The another chain relevant would be as to whether any occurrence took place in the school on 27.09.2010. For the aforesaid, reference of the statements of PW-8 to PW-14 are relevant. Those witnesses have described condition of the deceased but did not state about commission of the offence of Section 377 Indian Penal Code. The medical condition of the girl was shown to be poor and said to have suffered first menses, thus, excessive bleeding. To prove offence under Section 377 Indian penal Code, the prosecution produced PW-15 Govind Singh Yadav though he was declared hostile. The post mortem conducted by the team of four doctors. They have shown five injuries to the deceased, out of which, injury no. 4 was old. Her rectum was found ruptured and perforated size 2 x 1.5 cm. The post mortem was conducted on 28.09.2010. No injury was found on the vagina and hymen of deceased was found intact. No blood was reported to be out of vagina rather it was out of rectum. The post mortem was conducted of which a video was prepared followed by a report at Exhibit A-11. The post mortem report was prepared by Dr. Sandeep Srivastava in his writing. PW-30 Anil Kumar Singh had initially conducted the investigation and collected blood from the floor of the school and even prepared recovery memo Exhibit A-5 in the presence of Anamika Kushwaha and Mohita Srivastava.

Whether the occurrence took place in the school is to be seen in reference of the prosecution witness PW-9 Maya. She has stated that after entry of the students in the school, the doors are closed and nobody can enter the school thereupon. The fact aforesaid is relevant because defence tried to implicate one Munna to cause occurrence. Said Munna is shown to be residing near the residence of the deceased said to have caused occurrence. The Court did not find any involvement of Munna in the occurrence because till the deceased was taken to her home by PW-8 Parveen and PW-9 Maya at around 01:00 P.M., she was in the school and no outsider was permitted to enter the school without the permission. Thus, the effort of the defence to implicate Munna could not get result in the light of the statements of the witnesses produced by the prosecution. The evidence on record shows that the deceased was immediately, i.e., at 01:30 P.M. taken to the hospital by PW-15 Govind Singh Yadav where she was declared dead. The death said to have occurred one hour before.

Learned trial Court analysed the case to find out the possibility of causing of injury on the rectum after the deceased was brought to her residence at around 01:00 P.M. The evidence on record shows that PW-15 Govind Singh Yadav took the girl immediately to the hospital after she was dropped by female attendant of the school at her residence. It was on the request of the ladies residing in the vicinity and in absence of her mother. The deceased was taken to the emergency wing of the hospital where doctor declared her to be dead. The said witness was declared hostile but his statement can be relied to the extent it is corroborated by other evidence. Learned trial Court has recorded its finding that after death, the body becomes stiff and even the parts shrink thus, no possibility remain to cause injury on the rectum thereupon. The fact aforesaid is otherwise relevant for the reason that even the defence could not bring evidence to show that injury on the rectum was caused subsequently so as to ignore post mortem report showing it to be ante mortem injury. In view of the aforesaid, injury on the rectum came in the school thereby occurrence took place in the school.

The case of the defence is that deceased suffered excess bleeding out of vagina due to menses or she was pregnant. The pregnancy has been eliminated by the trial Court as hymen of the deceased was found intact and otherwise there was no medical evidence to prove pregnancy rather her ovary was found empty. So far as suffering from the menses and excessive bleeding out of vagina is concerned, the opinion aforesaid has not been reflected in the post mortem report. It is otherwise a fact that if the girl suffered from excess bleeding due to menses, the natural action of the school authority should have been to immediate take her to the hospital. The evidence rather shows abnormal conduct for the reason that even when deceased was dropped at her residence, no information about it was given rather she was left on a cot without any information about excessive bleeding.

Whether accused-appellant Piyush Kumar Verma was present at the place of occurrence :

To have chain of circumstances, another issue relevant is as to whether accused-appellant Piyush Kumar Verma was present in the school when the occurrence took place. This has also been proved by the prosecution by their evidence. The accused-appellant has alleged it to be case of false implication of Piyush Kumar Verma due to political and social rivalries. In the defence and the statement under Section 313 Code of Criminal Procedure, it has been stated by the accused Piyush Kumar Verma that he was not looking after the school in which occurrence took place. It was looked after by his ailing father Chandra Pal Verma. He was managing another school at the distance of 3-4 Kms. from the place of occurrence and was available in that school at the time of occurrence.

The prosecution produced CDR of Mobile No. 9451771705 and 9336126404 apart from Mobile Nos. 9839540378, 9453041928, 9793969328 and 9794776870. As per the CDR, location of Sudhir Kumar Verma @ Mukesh Verma was found in Unnao between 11:00 A.M. till evening. The statement of Deepak Kumar Sinha (PW-27), Aditya (PW-28) and Rajiv Singh Sengar (PW-29) has proved the CDRs produced by the prosecution.

PW-27 Deepak Kumar Sinha has stated that CDR of Mobile No. 9451771705 was prepared on 23.02.2011 by Vinod Kumar Arora, retired Divisional Engineer (Exhibit A-31). With regard to another mobile no. 9453041928 belonging to Laxmi Niwas Mishra, the husband of Smt. Sunita Mishra was also prepared by Vinod Kumar Arora on 23.02.2011. The CDR of aforesaid mobile was exhibited. There were 29 calls from Mobile No. 9451771705.

PW-28 Aditya made statement regarding Mobile No. 9336126404 belonging to Sudhir Kumar S/o Chandra Pal Verma. The CDR was prepared by Madhu Balbhu and the said CDR was proved in evidence. Mobile No. 9389540378 was belonging to Shailendra Mishra whose CDR was generated from Mumbai Headquarter. PW-29 Rajeev Singh Sengar proved CDR of Mobile No. 9794776870 and 9793969328. The prosecution came with the case that Mobile No. 9451771705 was used by the accused Piyush Kumar Verma. The said mobile was used to call Chandra Pal Verma, co-accused Sudhir Kumar Verma @ Mukesh Verma, Santosh Kumar Singh and Sunita Mishra on the day of occurrence and at the relevant time. The conversation from the mobile number used by Piyush Kumar Verma was frequently and is proved by the CDRs.

The argument of the defence is that mobile no. 9451771705 was not belonging to the accused Piyush Kumar Verma rather Sim Card was issued in the name of one Ravi Kumar. According to defence, the involvement of aforesaid mobile number was only to make false implication of the accused Piyush Kumar Verma.

The trial Court did not accept the aforesaid for the following reasons. As per the statement of CW-1 Punam Rajput and CW-2 Ajai Kumar, Ravi Kumar was not residing on the address given for obtaining Sim Card. CW-1 Punam Rajput is Parshad of Ward No. 44. She stated that Ravi Kumar was not residing in the area or nearby. She further stated that a Constable came to trace out Ravi Kumar but he was not found on the address and thereby, a report was submitted. CW-2 Ajai Kumar has stated that he went to execute the summon issued by the Court on Ravi Kumar. He visited the place given in the ID proof and other document. He had even carried photograph of Ravi Kumar. He was not found at the address and nearby. Nobody was knowing him even after seen the photograph. None could recognise Ravi Kumar rather stated that the person in the photograph never resided in the area. The prosecution could prove that though Sim Card was issued in the name of Ravi Kumar but the address of document and other documents could not be verified as Ravi Kumar was not found on the address rather never resided. Thereby, Piyush Kumar Verma had obtained the Sim Card in the name of Ravi Kumar and was using it. The inference was drawn though was not required as the statement made by the accused under Section 313 Code of Criminal Procedure and more particularly Chandra Pal Verma and Sudhir Kumar Verma @ Mukesh Verma could not give reason of phone calls and regular conversation with unknown number that too on the day of occurrence. The CDR is showing frequent conversation between four mobile numbers referred to above and that too at the time of occurrence.

The trial Court found that mobile number was obtained in the name of Ravi Kumar and used by the accused Piyush Kumar Verma. The CDR of mobile no. 9451771705 shows frequent conversation with other accused Chandra Pal Verma and Sudhir Kumar Verma @ Mukesh Verma apart from Sunita Mishra at the time of occurrence and location of the mobile no. 9451771705 was found near the school in which occurrence took place and thereby, the prosecution could prove the presence of the accused Piyush Kumar Verma at the time of occurrence.

It is further relevant to note that as per the statement of PW-9 Maya, no outsider could enter in the school after closing the gates after entry of the students in the morning. Thereby, occurrence in the school could have been by a person having access in the school. It was a girls school and the statement of witnesses produced by the prosecution could show presence of mainly female staff members while offence under Section 377 Indian penal Code took place.

The argument of learned counsel for the appellants cannot be accepted that prosecution could not connect Piyush Kumar Verma with mobile no. 9451771705. The argument of learned counsel that witnesses produced by the prosecution did not state about conversation ignoring that the CDR produced by the prosecution shows conversation with the accused each other and Sunita Mishra on their mobile numbers. There were 29 calls made during the relevant time. The statements of PW-27 Deepak Kumar Sinha, PW-28 Aditya and PW-29 Rajiv Singh Sengar have proved CDRs produced in evidence. Those CDRs show frequent conversation between those mobiles. The fact regarding frequent conversation on those mobile was not required to be stated time and again as otherwise stated by PW-27 Deepak Kumar Sinha. The statement was corroborated by the CDRs proved in the evidence. The argument that there was no conversation between those mobile numbers is an argument in ignorance of the CDR available on record showing frequent conversation. In view of the above, we find that another relevant circumstances to connect the accused could be proved by the prosecution.

Whether prosecution could bring other evidence to prove the case :

The learned counsel for the appellant vehemently argued that the prosecution could not bring any evidence to show involvement of the accused Piyush Kumar Verma in the occurrence. We have recorded our finding that presence of the accused Piyush Kumar Verma at the place of occurrence could be proved by the prosecution. The prosecution produced other evidence to connect accused Piyush Kumar Verma with the crime. The material evidence to prove prosecution case is FSL report also which has been contested by learned counsel for the appellants. The contest has been made not only alleging preparation of fraudulent FSL report by PW-23 Dr. Rajiv Paliwal but the recovery memo (Exhibit A-5). We would first refer to recovery memo (Exhibit A-5) showing recovery of underwear of the deceased.

Learned counsel for the appellant has alleged addition of two lines at the end of the recovery memo to show recovery of the underwear. The recovery memo shows recovery of underwear of the deceased and the relevance of the underwear is due to DNA test report. The semen found on the underwear matched to the DNA of the accused and thereby it became relevant connecting evidence. PW-12 Anamika Kushwaha and PW-13 Mohita Srivastava have admitted signature on the recovery memo (Exhibit A-5) but stated that last two lines were not existing at the time of signing the recovery memo. The trial Court has dealt with the aforesaid facts in reference of the statement of other witnesses who stated that in the school bag, shirt, skirt, tie, belt and shoes of the deceased were kept after wrapping it in "Yellow Dhoti". The underwear was not found in the school bag of the deceased. Therefore, the recovery of the underwear of the deceased was found proved by the trial Court.

The dispute about recovery of the underwear is mainly for the reason that DNA report was showing human semen matching to the DNA group of the accused. It is a fact that no allegation have been imputed against the officer who prepared the recovery memo and proved it. The argument has not been raised against the officer in particular to show recovery of underwear and addition of the lines by fraudulent means. It could not have been even for the reason that after recovery of articles, it was sent for FSL report and there the underwear of the deceased has been shown to be one of the article sent for the FSL report. If the underwear would not have been recovered from the place of occurrence and was not available in the school bag then how it was sent for FSL report, could not be explained by learned counsel for the appellants.

The further fact relevant is the presence of human semen on the underwear of the deceased matching to the DNA of the accused. The appellant has not come with the case that semen of the accused was taken forcibly and was put on the underwear of the deceased to obtain FSL report. Thus, taking note of all the aspects, recovery of the underwear cannot be doubted only for the reason that FSL report is adverse to the appellant.

The other aspect relevant to the case and vehemently argued by learned counsel for the appellant is about FSL/DNA report. The argument was raised in reference of the statement of PW-23 Rajiv Paliwal and the documents produced in defence. It is for obtaining report from CDFD, Hyderabad without an M.O.U. between FSL, Lucknow and CDFD, Hyderabad. PW-23 Rajiv Paliwal, Scientist of FSL, Lucknow stated that techniques for Y-STR like power plex R.T.P.C., contifiler were not available at FSL, Lucknow, therefore, he had gone to CDFD, Hyderabad to conduct the test and to get the report. The aforesaid statement has been questioned by learned counsel for the appellant in reference to M.O.U. as well as document obtained from CDFD, Hyderabad under Right to Information Act, 2005. It is stated that there exist no M.O.U. between CDFD, Hyderabad and FSL, Lucknow to conduct the test in the manner it has been done in the present case. It is further stated that CDFD, Hyderabad was not having record for the test.

The issue aforesaid has been considered by the trial Court in detail. It was found that the M.O.U. was existing between FSL, Lucknow and CDFD, Hyderabad for conducting the test. It may be for the training purposes but it does not preclude the Scientist of FSL, Lucknow to get a report from CDFD, Hyderabad when required techniques were available at FSL, Lucknow. PW-23 Rajiv Paliwal was declared hostile but his statement for conducting the test and obtaining report from CDFD, Hyderabad corroborated by the test report thus can be read. The allegation of political and social rivalry has been made by learned counsel for the appellant but no evidence was placed to prove those allegations. The statement of PW-23 Rajiv Paliwal shows that he himself went to CDFD, Hyderabad to conduct the test and to prepare the report. In view of the aforesaid, if the case crime number was not recorded in the register, the report of CDFD, Hyderabad cannot be discarded. The information was sought by the appellant under Right to Information Act, 2005 is not of the nature which can discard the test report of CDFD, Hyderabad. The test report otherwise is relevant and crucial for the reason that DNA of the accused could match to the semen found on the underwear of the deceased to connect Piyush Kumar Verma with the crime.

At this stage, learned counsel for the appellant submitted that even the DNA report does not conclude with the finding that semen on the underwear was matching to the DNA of Piyush Kumar Verma rather it was shown to be human semen matching to the DNA of accused who are more than one. The Court erroneously recorded finding against accused Piyush Kumar Verma going contrary to the evidence.

We have considered aforesaid aspect also. The statements of PW-22 Dr. Archana Tripathi and PW-23 Dr. Rajeev Paliwal are relevant for it. PW-22 Dr. Archana Tripathi has proved Exhibit A-13 (the test report). PW-23 Dr. Rajeev Paliwal was declared hostile witness but he has also admitted the report and the fact that the test was conducted at CDFD, Hyderabad. The report was considered by the trial Court having evidence against the accused. It was then taken against appellant Piyush Kumar Verma present in the school at the time of occurrence.

The argument has been raised in reference to the statement of PW-25 Dr. Alka Shukla who examined anal and vaginal smear of the deceased Divya. She did not find semen in it. A reference of Exhibits A-14 and A-15 was given. The argument has been raised that when semen was not found in the anal and vaginal smear, an offence under Section 377 Indian Penal Code cannot be said to have been committed. The argument aforesaid has been considered by the trial Court. It has discussed not only in reference to the evidence but the circumstance which may not show presence of semen in the anal and vaginal smear in the given case. In the present matter, the rectum of the deceased was found lacerated and perforated size 2 x 1.5 cm upto sigmoid colon. Learned trial Court found that offence under Section 377 Indian Penal Code has been committed by a boy aged 24-25 years. The erection can be kept or take place outside. It is otherwise a case where semen was found on the underwear of the deceased matching to the DNA of the accused. Thus, the argument made in reference to statement of PW-25 Dr. Alka Shukla cannot be accepted.

The other aspect is the date of taking of blood sample of accused Piyush Kumar Verma. It is said to be on 22.12.2010 while as per the statement of CW-3 Dr. Satish Chandra Verma, the blood samples were taken on 09.11.2010 on the direction of C.M.M., Kanpur Nagar. CW-3 has stated about collection of 13 blood samples of different donors on 09.11.2010. He was accompanied by Dr. V.P. Chaturvedi. The samples were properly sealed and sent to FSL, Lucknow in the manner required. He was not cross-examined by the accused in regard to the date of collection of samples. Even no question was raised in reference to alleged date of taking sample on 22.12.2010. The date aforesaid was introduced by the accused Piyush Kumar Verma in the statement under Section 313 Code of Criminal Procedure for the first time. If the sample would have been taken on 22.12.2010, then there was no reason for the appellant Piyush Kumar Verma not to cross-examine CW-3 Dr. Satish Chandra Verma on that issue. Exhibit A-13 on record shows the date of the sample. It is not 22.12.2010 rather of 09.11.2010. The appellant has tried to cook-up new story subsequently without any evidence to prove collection of sample of Piyush Kumar Verma on 22.12.2010. Thus, the date aforesaid for collection of sample was not accepted. The witness was not even cross-examined regarding different dates for collection of blood samples of 13 persons pursuant to the order of the Court. The reference of the date of sample is otherwise given in Exhibit A-13 and is of 09.11.2010. Thus, the argument of learned counsel for the appellant in reference to the date of collection of blood sample cannot be accepted.

It is then urged that as per the statement of PW-23 Rajiv Paliwal, the samples were packed and the case crime number was also indicated. The statement aforesaid has not been corroborated by PW-22 Dr. Archana Tripathi who stated that the case crime number on the sample was not mentioned. It is alleged by the appellant that a different sample was used for lab test.

Learned trial Court has considered the aforesaid argument also and found that the witness may not exactly state about a fact pertaining to an event took place 5 to 8 years back. PW-22 Dr. Archana Tripathi has stated about receipt of the blood samples and E.D.T. vial was containing names of the donors. It was received in a sealed bundle with required details. She was not cross-examined in reference to case crime number despite the fact that she had proved the document regarding receipt of 13 samples with names and the test report of the accused. The document Exhibit A-13 proved receipt of samples collected on 09.11.2010 of 13 donors and case crime number. Looking to the aforesaid, we do not find any reason to cause interference in the findings of the trial Court. The witness PW-22 Dr. Archana Tripathi was not even asked about alleged fraudulent preparation of report of blood sample.

Learned counsel for the appellant submitted that even Exhibit A-13 does not record a conclusive finding at the end. The argument aforesaid has been raised ignoring the report. Only one part of the report has been referred while earlier part give conclusive evidence.

In the light of the aforesaid, while we are unable to accept any of the argument raised by learned counsel for the appellant, find that prosecution could bring evidence to connect the accused Piyush Kumar Verma with crime beyond doubt for commission of offence under Section 377 Indian Penal Code. The finding in regard to the commission of offence under Section 377 Indian Penal Code has been recorded at the first instance. The learned trial Court further found commission of offence under Section 302 Indian Penal Code by the appellant and for that, reference of Section 299, 300 Indian Penal Code apart from 302 India Penal Code has been given with interpretation in reference of the judgment of the Supreme Court.

Learned counsel for the appellant submitted that there was no intention or motive on the part of the appellant Piyush Kumar Verma to commit offence under Section 302 Indian Penal Code, however, while raising the said argument, the finding recorded by the trial Court was not questioned other than to the interpretation to the definition of "murder" punishable under Section 302 Indian Penal Code. Finding of the trial Court in regard to the commission of offence under Section 302 Indian Penal Code by the accused Piyush Kumar Verma is quoted hereunder :

**106& /kkjk 302 Hkk0na0la0 ds vUrxZr gR;k dks /kkjk 300 Hkk0na0la0 esa ifjHkkf"kr fd;k x;k gSA /kkjk 300 Hkk0na0la0 ds vuqlkj&

,rfLeu~ i'pkr viokfnr n'kkvksa dks NksM+dj vkijkf/kd ekuo o/k gR;k gSA

1& ;fn og dk;Z] ftlds }kjk e`R;q dkfjr dh x;h gks] e`R;q dkfjr djus ds vk'k; ls fd;k x;k gks] vFkok

2& ;fn og ,slh 'kkjhfjd {kfr dkfjr djus ds vk'k; ls fd;k x;k gks ftlls vijk/kh tkurk gks fd ml O;fDr dh e`R;q dkfjr djuk lEHkkO; gS ftldks og vigkfu dkfjr dh x;h gS] vFkok

3& ;fn og fdlh O;fDr dh 'kkjhfjd {kfr dkfjr djus ds vk'k; ls fd;k x;k gks vkSj og 'kkjhfjd {kfr] ftlds dkfjr djus dk vk'k;] çd`fr ds ekewyh vuqØe esa e`R;q dkfjr djus ds fy, i;kZIr gks] vFkok

4& ;fn dk;Z djus okyk O;fDr ;g tkurk gks fd og dk;Z bruk vklUuladV gS fd iwjh vf/klaHkkO;rk gS fd og e`R;q dkfjr dj gh nsxk ;k ,slh 'kkjhfjd {kfr dkfjr dj gh nsxk ftlls e`R;q dkfjr gksuk lEHkkO; gS vkSj og e`R;q dkfjr djus ;k iwokZsDr :i dh {kfr dkfjr djus dh tksf[ke mBkus ds fy, fdlh çfrgsrq ds fcuk ,slk dk;Z djsA

bl çdkj ls /kkjk 302 Hkk0na0la0 esa Øe la[;k&4 ij ;g mfYyf[kr gS fd ;fn dk;Z djus okyk O;fDr ;g tkurk gks fd og dk;Z bruk vklUuladV gS fd iwjh vf/klaHkkO;rk gS fd og e`R;q dkfjr dj gh nsxk ;k ,slh 'kkjhfjd {kfr dkfjr dj gh nsxk ftlls e`R;q dkfjr gksuk lEHkkO; gS vkSj og e`R;q dkfjr djus ;k iwokZsDr :i dh {kfr dkfjr djus dh tksf[ke mBkus ds fy, fdlh çfrgsrq ds fcuk ,slk dk;Z djrk gS rks gR;k dh {ks.kh esa vkrk gSA

107& ;gkW ;g mYys[kuh; gS fd 11 o"khZ; vcks/k ckfydk ds lkFk fo|ky; tSls ifo= laLFkk esa tgkW Nk= f'k{kk xzg.k djus tkrs gS ogkW vfHk;qDr ds }kjk ,d vcks/k ckfydk ds lkFk vçkd`frd eSFkqu djds mlds bruh çcy pksV igqWpk;h gS ftlds ifj.kkeLo:i gq, vR;f/kd jDr L=ko ds dkj.k mldh e`R;q gqbZ gSA ?kVuk ds le; vfHk;qDr ih;w"k oekZ dh mez yxHkx 24&25 o"kZ dh jgh gksxh vkSj ml mez esa dkeqdrk ds enkaX/k gksdj vfHk;qDr ds }kjk ;g tkurs gq, fd mlds }kjk tks vcks/k ckfydk ds lkFk dk;Z fd;k tk jgk gS og dk;Z bruk vklUuladV gS fd mls bruh xaHkhj 'kkjhfjd {kfr gks ldrh gS ftlls mldh e`R;q dkfjr gksuk Hkh lEHko gS vkSj e`R;q dkfjr djus dk tksf[ke mBkus ds fy, mlds }kjk dqd`R; fd;k x;k gS og fuf'pr rkSj ij ,slk vkijkf/kd ekuo o/k gS tks ?kVuk ds ifj.kke Lo:i gq, vR;f/kd jDr L=ko ds dkj.k e`rdk dh e`R;q esa ifjofrZr gqvk vkSj bl çdkj ls vfHk;qDr ih;w"k oekZ /kkjk 302 Hkk0na0la0 ds vUrxZr Hkh nks"kh ik;k tkrk gSA**

We find that learned trial Court has made a reference of Section 300 Indian Penal Code to find out whether a case under Section 302 Indian Penal Code is made out. The offence under Section 377 Indian Penal Code was committed by the accused Piyush Kumar Verma on a girl at the age of 11 years when she was not fully grown. The injuries to the deceased have been recorded in the post mortem report. The cause of death was due to excessive bleeding and shock. The learned trial Court has discussed about commission of offence by the accused Piyush Kumar Verma. It has not been questioned in argument other than the interpretation of the definition of "murder". The evidence on record has proved commission of offence of Section 302 Indian Penal Code by accused Piyush Kumar Verma. We do not find any illegality in the finding recorded by the trial Court. Thereby, we maintain the judgment of the trial Court, vis-a-vis, the appellant-accused Piyush Kumar Verma as none of the arguments of learned counsel for the accused-appellant Piyush Kumar Verma could be accepted by this Court.

The appeal of accused-appellant Piyush Kumar Verma is, accordingly, dismissed.

The appellants Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh have been convicted and sentenced for offence under Section 304A and 202 Indian Penal Code. They were, however, acquitted of the offence under Section 201 Indian Penal Code as the prosecution failed to lead evidence to prove that those two appellants suppressed or disappeared the evidence. They were even acquitted from the offence under Section 304 Indian Penal Code. The appellants, however, convicted for the offence under Section 202 and 304A Indian Penal Code.

The conviction for offence under Section 202 Indian Penal Code has been made in reference to the statement of PW-28 Aditya and Exhibit A-35, i.e., CDR report of Mobile Nos. 9336126404 and 9389540378. It is true that both the mobiles were used for frequent conversation with main accused Piyush Kumar Verma. The conversation was made during the relevant time on the day of occurrence but merely for that reason, it cannot be said that offence under Section 202 Indian Penal Code is proved.

The offence under Section 202 Indian Penal Code found proved mainly in reference to inaction of accused for sending the victim/deceased to the hospital. The trial Court ignored that no evidence was produced that Sudhir Kumar Verma @ Mukesh Verma was administrating the educational institution where occurrence took place and was under legal duty. The Principal of the school was otherwise Sunita Mishra and has not been made an accused. The conviction for the offence under Section 202 Indian Penal Code has been made alleging negligence of the accused ignoring that offence under Section 202 Indian Penal Code would be made out when the accused is under a legal obligation to convey the information about commission of offence but failed to do so. The finding of the trial Court does not show even an allegation against the accused-appellants Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh about their legal obligation to inform about the crime and their failure to do so. The learned trial Court has recorded finding about negligence and not for their legal duty. The finding of the trial Court in regard to the offence under Section 202 Indian Penal Code cannot be accepted as even the ingredients of the aforesaid provision could not be proved by the prosecution by leading evidence. Section 202 Indian Penal Code is quoted hereunder for ready reference :

"202. Intentional omission to give information of offence by person bound to inform.--Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

The trial Court has not recorded finding about legal obligation of the accused to make out a case for offence under Section 202 Indian Penal Code. The negligence of the accused would not make out a case under Section 202 Indian Penal Code unless their legal obligation is proved.

The conviction for the offence under Section 304A Indian Penal Code is another issue. The impugned judgment shows that a charge for the offence under Section 304A Indian Penal Code was not framed rather it was for Section 304 Indian Penal Code. The finding has been, however, recorded that even if the charges were not framed then as per the judgment of Apex Court in the case of Dalvir Singh Versus State of Uttar Pradesh reported in (2004) 5 SCC 334, the conviction for the offence having lesser punishment can be made.

So far as the accused Sudhir Kumar Verma @ Mukesh Verma is concerned, the evidence on record shows that he was not available at the place of occurrence rather was at Unnao. The conviction for the offence under Section 304A Indian Penal Code can be made when act of negligence or ignorance in performance of work resulting in death not amounting to culpable homicide is proved. We do not find that prosecution could produce any evidence of that nature to make out an offence under Section 304A Indian Penal Code against the appellant Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh. Section 304A Indian Penal Code is quoted hereunder for ready reference :

"304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

The evidence produced by the prosecution does not prove offence under Section 304A Indian Penal Code by the appellants Sudhir Kumar Verma @ Mukesh Verma or Santosh Kumar Singh. Accordingly, their conviction for the offence under Section 304A and 202 Indian Penal Code cannot sustain rather they are acquitted for the offence and, accordingly, their conviction and sentence is interfered and to that extent, the impugned judgment of the trial Court is set aside. Their bail bonds are discharged as both of them are on bail.

The appeal of Sudhir Kumar Verma @ Mukesh Verma and Santosh Kumar Singh is allowed.

Order Date :- 23.6.2021

Shubham