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2003 DIGILAW 2420 (ALL)

SATISH; CROSS APPEAL v. STATE OF U P

2003-10-14

UMESHWAR PANDEY, VISHNU SAHAI

body2003
VISHNU SAHAI, J. Satish was charged by the Additional Sessions Judge (Court No. 6) Meerut in Sessions Trial No. 796 of 2001 for offecnes punishable under Sections 302/376 (2) (f)/363/366/201 IPC. Vide judgment and order dated 29-10-2002, the learned Judge convicted and sentenced Satish in the manner stated hereinafter: (i) Under Section 302 IPC to death; (ii) Under Section 363 IPC to seven years RI and to pay a fine of Rs. 2000; (iii) Under Section 366 IPC to seven years R and to pay a fine of Rs. 2000; (iv) Under Section 376 (2) (f) IPC to imprisonment for life and to pay a fine of Rs. 2000 ; and (v) Under Section 201 IPC to seven years RI and to pay a fine of Rs. 2000. The learned Judge directed that in case the appellant did not deposit the fine, he would undergo a sentence of six months. The sentences were directed to run concurrently. 2. Criminal Appeal No. 299 of 2002 has been preferred by Satish against his conviction and sentence on the aforesaid counts and Capital Sentence reference No. 3 of 2000 arises out of the reference made by the learned Judge under Section 366 (1) Cr. P. C. to this Court for confirmation of the death sentence of Satish. Since they arise out of a common factual matrix and impugned judgment, we propose disposing them off by one judgment. 3. Shortly stated, the prosecution case runs as under: The informant Amrish Kumar PW 1 is the father of deceased Vishakha alias Akansha. At the time of the incident, the informant, the deceased, Anil PW 2 Sanjiv Kumar Tyagi PW 3 and Kulbhushan Dayal PW 5 were living in village Nangla Ander, within the limits of police Station Sardhana, District Meerut. At that time the appellant was also living in the said village. At the time of the incident, the informants daughter Vishakha alias Akansha was studying in Nursery class in Savrodaya Public School, situated opposite police station Sardana in district Meerut. On 16-8-2001 at 7. 00 a. m. Vishakha alias Akansha went to school to study. Normally, she used to return from the school at about 2. 00 p. m. but that day, she did not return by that time. Till about 2. 30 p. m. the informant waited for her to return but when she did not come he went to school. 00 a. m. Vishakha alias Akansha went to school to study. Normally, she used to return from the school at about 2. 00 p. m. but that day, she did not return by that time. Till about 2. 30 p. m. the informant waited for her to return but when she did not come he went to school. On the way, he met children of the village, who also used to study in the said school. When he asked them about his daughter they replied that she was behind them. Despite searching her, he could not find her. Thereafter, he got an announcement made in Sardhana Kasba on a loudspeaker and also gave an oral information to the said effect at police station Sardhana. The police told him that he should search her and they would also search her and in case they found her they would inform him. Next morning, at about 6. 00 a. m. , while he was searching his daughter he found her corpse in the sugarcane field of Moolchand. There was a bluish mark on her neck and it appeared that she had been strangulated. Blood was coming out from her thigh. Seeing the condition of the corpse he felt that someone had raped and thereafter, strangulated her. He then scribed a written FIR and proceeded to Police Station Sardana and lodged it. 4. The evidence of Head Constable Jaiveer Singh PW 6 shows that on 17-8-2001 at 8. 00 a. m. he registered a case on the basis of the FIR lodged by the informant Amrish Kumar PW 1. A perusal of the FIR shows that the informant has stated therein that on 17-8-2001 at about 6. 00 a. m. he found the corpse of his daughter Vishakha alias Akansha in the field on Mool Chand and it appeared to him that after being subjected to rape she was done to death. On the basis of the FIR a case under Section 302/376/201 IPC was registered. It is pertinent to mention that neither in the FIR the appellant is named nor any suspicion is cast against him. 5. The evidence of SHO Mahendra Singh Negi PW 8 shows: On 17-8-2001 in his presence FIR was lodged by the informant Amrish Kumar. On the basis of the FIR a case under Section 302/376/201 IPC was registered. It is pertinent to mention that neither in the FIR the appellant is named nor any suspicion is cast against him. 5. The evidence of SHO Mahendra Singh Negi PW 8 shows: On 17-8-2001 in his presence FIR was lodged by the informant Amrish Kumar. He thereafter, recorded the statement of Head Constable Jaiveer Singh, who had registered the case on the basis of FIR and that of the informant Amrish Kumar at the Police Station itself. He then left for the place of the incident, where under his supervision SI Rama Kant Yadav performed the inquest on the corpse of the deceased. On the pointing out of the informant he prepared the site plan and in the presence of a public witness Satendra Kumar PW 4 recovered the tie of the deceased under a recovery memo (Exhibit ka-2 ). On 18-8- 2001, on information from an informer he arrested the appellant from near Kalindi Out Post. During the course of interrogation the appellant confessed his involvement in the crime. On 19-8-2001, at the pointing out of the appellant in the presence of Kulbhushan PW 5 and some others he recovered the underwear of the deceased under a recovery memo (Exhibit Ka-3 ). Thereafter, the appellant took him to his house and his underwear was recovered on his pointing out in the presence of Kulbhushan PW 5 and some others under a recovery memo (Exhibit Ka-4 ). On the said date he recorded the statements of Suresh and Lekh Raj. On 2-9-2001, he recorded the statement of Kulbhushan. On 24-9-2001, he recorded the statements of Sanjeev PW 3 and some others. He thereafter, submitted the charge-sheet against the appellant. 6. Going backwards, the autospy on the corpse of the deceased Vishakha alias Akansha was conducted on 17-8-2001 at 2. 00 p. m. by Dr. R. K. Gupta PW 7, who found on it the following ante-mortem injuries: (i) Abraded contusion 10 cm x 4 cm on front and both side neck in its middle part. (ii) Multiple abrasion in an area of 9 cm x 3 cm on back of upper art of right forearm. (iii) Multiple abrasion in an area of 5 cm x 1 cm on back and front of lower part of left upper arm. (ii) Multiple abrasion in an area of 9 cm x 3 cm on back of upper art of right forearm. (iii) Multiple abrasion in an area of 5 cm x 1 cm on back and front of lower part of left upper arm. (iv) Lacerated wound 1 cm x. 5 cm x muscle deep at lower part of labia in midline. Blood coming out from the vaginal cavity. (v) Multiple abrasion 5 cm x 2 cm on medical aspect of left leg in middle part. (vi) Multiple abrasion 11 cm x 4 cm on outer and front of upper part of left thigh. The cause of death spelt out in the autopsy report was asphyxia as a result of smothering. It is pertinent to mention that in his deposition in the trial Court Dr. Gupta reiterated it and also stated therein that injury No. 4 could have been the result of penetration of a male organ and the other injuries could have either been the result of friction or scuffle. He also stated therein that the deceased could have died therefrom on 16-8-2001 at about 2-2. 30 p. m. 7. The case was committed to the Court of Sessions in the usual manner, where the appellant was charged on counts mentioned in paragraph 1. He pleaded not guilty to the charges and claimed to be tried. During trial, in all prosecution examined ten witnesses. We may straightaway mention that there is no eye-witness of the incident and the case rests on circumstances evidence. Prosecution pressed into service the following circumstances to connect the appellant with the crime: (i) On 16-8-2001 at about 1. 00-1. 30 p. m. near the grove of Matru Miyan, Sanjeev PW 3 and Kulbhushan PW 5 saw the deceased sitting on the cycle of the appellant and the appellant walking alongwith the said cycle. (ii) Recovery of underwear of the deceased and of the appellant at the pointing out of the appellant in the presence of public witnesses, and (iii) On 16-8-2001 at about 1. 00-1. 30 p. m. Anil PW 2, while working in his grove saw the appellant, who was in a nervous condition, walking towards the grove with a cycle in his hand. The learned Trial Judge believed the aforesaid circumstantial evidence and convicted and sentenced the appellant in the manner stated in paragraph 1. 8. 00-1. 30 p. m. Anil PW 2, while working in his grove saw the appellant, who was in a nervous condition, walking towards the grove with a cycle in his hand. The learned Trial Judge believed the aforesaid circumstantial evidence and convicted and sentenced the appellant in the manner stated in paragraph 1. 8. As mentioned in paragraph 2, aggrieved by his conviction and sentence the appellant has preferred the present appeal and for confirmation of the death sentence of Satish the learned Trial Judge has made the statutory reference under Section 366 (1) Cr. P. C. to this Court. 9. We have heard learned Counsel for the parties and perused the depositions of the prosecution witnesses, the material exhibits tendered and proved by the prosecution, the statement of the appellant recorded under Section 313 Cr. P. C. and the impugned judgment, and have no reservations in observing that the learned Trial Judge erred in convicting and sentencing the appellant in the manner stated in paragraph 1. 10. It would become manifest from the above that the instant case rests on circumstantial evidence. It is well-settled that circumstantial evidence can be made a basis for conviction provided: (a) The circumstances are firmly established; (b) They lead unerringly to the inference of the guilt of the accused person; (c) They are wholly in consistent with the inference of innocence of the accused person; and (d) They are incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused person. It is on this touch stone that we have examined the impugned judgment and are constrained to observe that the prosecution has lamentably failed to prove the guilt of the appellant. 11. We would not like to take up each of the circumstances. We being with the first circumstance, namely, that on 16-8-2001 at about 1. 00-1. 30 p. m. near the grove of Matru Miyan, Sanjeev PW 3 and Kulbhushan PW 5 saw the deceased sitting on the cycle of the appellant and the appellant walking with the said cycle. As mentioned above, in support of this circumstance, the prosecution has examined two witnesses, namely, Sanjeev PW 3 and Kulbhushan PW 5. 00-1. 30 p. m. near the grove of Matru Miyan, Sanjeev PW 3 and Kulbhushan PW 5 saw the deceased sitting on the cycle of the appellant and the appellant walking with the said cycle. As mentioned above, in support of this circumstance, the prosecution has examined two witnesses, namely, Sanjeev PW 3 and Kulbhushan PW 5. We make no bones in observing that it would be extremely unsafe to accept their evidence, for the reasons enumerated hereinafter: (a) There has been an inordinate unexplained delay on the part of the Investigating Officer SHO Mahendra Singh Negi in recording their statements (statements of Sanjeev PW 3 and Kulbhushan PW 5 ). In his examination in chief he has stated that he recorded the statement of Kulbhushan on 2-9-2001 and that of Sanjeev on 24-9-2001. He has furnished no reason for their belated interrogation. It is pertinent to mention that since they resided in the village of the informant there was no earthly reason why he did not interrogate them earlier. In our view, the reason of their delayed interrogation was that they had not seen the appellant taking the deceased on his cycle on the date and time mentioned above and he was busy deciding upon the account to be deposed by them. The Supreme Court has repeatedly frowned upon the belated interrogation of a witness under Section 161 Cr. P. C. and has held it to be suggestive of an endeavour on the part of the Investigating Officer to make manipulations and concoctions in the version actually furnished by them. In this connection, we feel in pertinent to refer to paragraph 15 of the decision rendered by the Supreme Court in the case of G. B. Patel v. State of Maharashtra, AIR 1979 SC 135 , wherein it has been laid down that if the investigator is marking out time to give shape to the prosecution case and the eye- witnesses to be introduced it would be unsafe to accept the evidence of a witness even if there is only a delay of few hours in recording of his statement under Section 161 Cr. P. C. We make no bones in observing that it is the duty of the Investigating Officer to promptly record the statement of witnesses under Section 161 Cr. P. C. We make no bones in observing that it is the duty of the Investigating Officer to promptly record the statement of witnesses under Section 161 Cr. P. C. and where there is delay on his part in recording their statements, a plausible explanation should be furnished by him. In the instant case even learned Counsel for the State and the complainant do not dispute that no explanation has been furnished by the Investigating Officer for the delay in recording of the statements of Sanjeev and Kulbhushan under Section 161 Cr. PC; and (b) Had Sanjeev PW 3 and Kulbhushan PW 5 actually seen the deceased on a cycle in the company of the appellant, on 16-8-2001 at 1. 00-1. 30 p. m. and had they told the informant doubt it, the same evening as deposed to them, then this fact would have been mentioned by the informant in his FIR and statement under Section 161 Cr. P. C. It is pertinent to mention that neither in his FIR which was lodged on 16-8- 2001 and nor in his statement under Section 161 Cr. PC, which was also recorded the same day, there is any mention of the fact that Sanjeev and Kulbhushan had told him that they had seen the deceased on a cycle alongwith the deceased on 16-8-2001 at 1. 00-1. 30 p. m. To cover up this lacuna a crude explanation was offered by the prosecution. From a perusal of the order-sheet it appears that examination of the complainant was completed on 31-5-2002. On 11-9-2002, i. e. nearly 3-1/2 months later an application was given on behalf of the prosecution for recalling the informant and he was recalled and when he was asked why he did not disclose the names of Sanjeev and Kulbhushan he replied that after receiving the information he searched for the appellant but could not find him and also because he had a feeling that on account of enmity these witnesses may have falsely implicated him. We make no bones in observing that we are not prepared to purchase this explanation. 12. For the reasons, this circumstances of last seen which according to the learned Additional Advocate General and learned Counsel for the complainant is the most lethal circumstance, has not been established. 13. We make no bones in observing that we are not prepared to purchase this explanation. 12. For the reasons, this circumstances of last seen which according to the learned Additional Advocate General and learned Counsel for the complainant is the most lethal circumstance, has not been established. 13. We now come to the second circumstances, namely, recovery of underwear of the deceased and of the appellant at the pointing out of the appellant in the presence of public witnesses. In our view, this circumstances does not incriminate the appellant because nothing was found on them which could connect him with the crime. Being conscious of this SHO Mahendra Singh Negi PW 8, the Investigating Officer, stated in his deposition that the appellant told him that he had washed his underwear. We are not prepared to purchase this explanation because in the recovery memo of underwear there is no mention of the factum of washing of underwear. To us this story of the appellant stating that he had washed the underwear appears to be an eye-wash. 14. For the said reasons, the evidence of recovery of the appellants own underwear and the underwear of the deceased on the pointing of the appellant is of no help to the prosecution in establishing its case. 15. This leaves us with only one circumstance i. e. on 16-8-2001 at about 1. 00-1. 30 p. m. Anil PW 2 while working in his grove saw the appellant, who was in a nervous conditions, walking towards the grove with a cycle in his hand. Even if it is assumed for arguments sake that this circumstances is established at the highest it would create a suspicion again that the appellant, but way back in the year 1957 in the oft-quoted case of Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637 , in paragraph 9, Gajendragadkar, J. (as he then was) observed that ". . . but suspicious however, strong, cannot take the place of proof. . . " 16. For the said reasons, in our judgment the prosecution has miserably failed to prove the guilt of the appellant. 17. In the result. A. Criminal Appeal No. 299 of 2002: The appeal is allowed. The conviction and sentence of appellant Satish on all the counts is set aside and he is acquitted thereunder. . . " 16. For the said reasons, in our judgment the prosecution has miserably failed to prove the guilt of the appellant. 17. In the result. A. Criminal Appeal No. 299 of 2002: The appeal is allowed. The conviction and sentence of appellant Satish on all the counts is set aside and he is acquitted thereunder. In case he has paid the fine, it shall stand refunded to him. He is in jail and shall be released forthwith unless wanted in some other case. B. Capital Sentence Reference No. 3 of 2002: The reference is rejected. Appeal allowed. .