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2016 DIGILAW 1312 (ALL)

MAHENDRA PAL SINGH v. STATE OF U. P.

2016-04-08

BALA KRISHNA NARAYANA, NAHEED ARA MOONIS

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JUDGMENT Hon’ble Naheed Ara Moonis, J.—The instant appeal has been preferred on behalf of the appellant against the judgment and order dated 22.6.2015 and 24.6.2015 passed by the Additional District & Sessions Judge (F.T.C.) Jalaun at Orai in Sessions Trial No. 102 of 2011 (State v. Mahendra Pal Singh) arising out of Case Crime No. 45 of2011 under Sections 302/201/376 IPC Police Station Dakere District Jalaun, whereby the appellant has been awarded capital sentence for the offence punishable under Section 302 IPC. The appellant has further been convicted and sentenced under Section 376 IPC for a term of twenty years rigorous imprisonment with fine of Rs. 5,000/- and under Section 201 IPC for a term of five years rigorous imprisonment with fine of Rs. 2000/-. All the sentences were directed to run concurrently. 2. We have heard learned counsel for the appellant Sri Vinod Singh and learned Government Advocate Sri Akhilesh Singh assisted by Sri Nipendra Kumar Singh Yadav appearing for the State and have been taken through the record. 3. The genesis of the prosecution case in a short compendium is that the First Information Report was lodged by Hemraj (P.W.1) against unknown person on 31.1.2011 at about 11.30 a.m. alleging therein that his daughter aged about 3’1/2 years had disappeared at about 6.00 p.m. on 30.1.2011 and an assiduous search was undertaken by the complainant, his relatives and the villagers but the victim could not be found. On 31.1.2011 at about 10.00 a.m., the corpse of his daughter was traced in a narrow lane tied within a jute sack near his house. The report was scribed by Rajesh Kumar Misra (P.W.3). 4. The chick FIR No. 10/11 was prepared by constable Tulsi Ram (P.W.6) and necessary entries were made in the G.D.entering the Case Crime No. 45 of 2011 under Section 302/201 IPC at Police Station Dakore, District Jalaun. After the registration of the First Information Report, Lalit Kumar S.I. who was entrusted the investigation swung into action. He noted the relevant materials in the case diary. On 31.1.2011, he recorded the statement of the complainant and the Head Constable Tulsiram who had prepared the Chik FIR (Ka.4). He recorded the statement of the scribe of the First Information Report Rajesh Kumar Mishra besides many other witnesses. The investigating officer visited the spot at the instance of the complainant. On 31.1.2011, he recorded the statement of the complainant and the Head Constable Tulsiram who had prepared the Chik FIR (Ka.4). He recorded the statement of the scribe of the First Information Report Rajesh Kumar Mishra besides many other witnesses. The investigating officer visited the spot at the instance of the complainant. The corpse of the deceased girl was taken into custody and inquest of the corpse was conducted on 31.1.2011 at 3.00 p.m. After observing necessary formalties, the body was sent for post-mortem escorted by Constable Jai Veer Singh and Head Constable Veerpal. The post-mortem of the deceased was conducted by Dr. Avinash Kumar (P.W.5) on 1.2.2011 at 3.00 p.m. who found the following ante-mortem injuries on the person of the deceased. Ante-mortem injuries : 1. Abraision sized 6 cm x 2 cm on the outer part of right side neck 5 cm below right ear. 2. Abrasion 5 cm x 2 cm on the left side neck outer part 4 cm below left ear. 3. Abraded contusion on the both whole upper and lower lips clotted blood seen over the wound (lips) 4. Abraided contusion sized 2.0 cm x 2.0 cm on the tip of nose and over both nostrils clotted blood seen over the wound. 5. Vaginal laceration seen around all around the anterior vaginal wall clotted blood seen inside the vagina and over the labia majora. 5. According to the doctor, the cause of death was due to shock as a result of ante-mortem injuries. Rigor mortis was passed of from both upper limbs as well as from both the lower limbs and the time since death was about two days old, the doctor sealed her wearing apparels and found blood stains on underwear. 6. The investigating officer made hectic and tireless efforts to trace the whereabout of the culprit but it yielded no tangible result. On 2.2.2011 the investigating officer recorded the statement of Devi Dayal, brother of the complainant and Rajesh Kumar Mishra scribe of the FIR who were the witnesses of the last seen and were produced as prosecution witness P.W.2 and P.W.3. Further statements of the complainant and many other witneses viz. Ram Kishun, Sukru and Sant Ram were recorded under Section 161 Cr.P.C. On 3.2.2011, the statement of Jai Prakash and Km. Further statements of the complainant and many other witneses viz. Ram Kishun, Sukru and Sant Ram were recorded under Section 161 Cr.P.C. On 3.2.2011, the statement of Jai Prakash and Km. Radha both son and daughter of Devi Dayal were recorded under Section 161 Cr.P.C. though not produced and examined by the prosecution during trial. In their statement the complicity of the appellant Mahendra and one Raja Babu came into light that on 30.1.2011 they heard the shrieks and shrill of the victim from the house of the appellant. Thereafter the accused persons namely Mahendra Pal and Raja Babu were nabbed on 4.2.2011 at 3.00 p.m.The statement of the aforesaid accused persons were recorded who confessed their guilt and blabbed about what really happened stating that they had committed mistake as they had raped the victim and subsequently strangulated to death and dumped the body in the narrow lane near his house. Upon their revelation the accused persons were taken into custody and were taken to the house of the appellant, the place of occurrence from where on the pointing of the accused appellant blood stained and plain earth were collected in the presence of the witnesses. The recovery memo Ext.Ka.4 was prepared on 4.2.2011. Prior to the recovery of blood stain earth, on 31.1.2011, the investigating officer had collected blood stained jute sack having dead body of the deceased, used match box and packet of biris, an iron rod near the dilapidated house vide Ext.Ka2 and Ka.4. Finger print was taken from the iron rod and the same was also described in the case diary in the presence of Devi Dayal and Rajesh Kumar Mishra (P.W.2 and P.W.3). The report of the finger print expert was received which was entered into the case diary. While conducting autopsy of the corpse, vaginal slides and vaginal smear were taken and sent for examination. The papers sent for forensic examination were produced by the constable Dhani Ram on 15.3.2011. Further statements of Scientific Assistant Km. Rubina, Constable 81 Dhani Ram, Smt. Hemwati and Priyanka were recorded. The investigating officer recorded the statement of Dr. Avinash Kumar (P.W.5) and Dr. Mohd.Mashooq Siddiqui, P.W.4. Thereafter on 16.3.2011, the invstigating officer after collecting credible and clinching evidence showing the complicity of the appellant and Raja Babu submitted charge-sheet under Sections 302/201/376 IPC. 7. Rubina, Constable 81 Dhani Ram, Smt. Hemwati and Priyanka were recorded. The investigating officer recorded the statement of Dr. Avinash Kumar (P.W.5) and Dr. Mohd.Mashooq Siddiqui, P.W.4. Thereafter on 16.3.2011, the invstigating officer after collecting credible and clinching evidence showing the complicity of the appellant and Raja Babu submitted charge-sheet under Sections 302/201/376 IPC. 7. The case was committed to the Court of sessions and the Additional District & Sessions Judge Jalaun framed the charge separately against the appellant under Section 376/302/201 IPC. The trial of co-accused Raja Babu was separated on the plinth of being juvenile. The charge framed against the appellant was read over and explained to him who abjured from the charge and claimed to be tried. 8. The prosecution in support of its case, examined Hem Raj the father of the deceased who had lodged the F.I.R as P.W.1. Devi Dayal, brother of Hem Raj and uncle of the deceased as P.W.2. Rajesh Kumar Mishra who scribed the FIR was examined as P.W.3. Devi Dayal (P.W.2) and Rajesh Kumar Misra (P.W.3) had seen the appellant taking the victim girl in his lap. The prosecution has also examined the formal witnesses namely Dr. Mohd. Masooq Siddiqui alongwith Dr. Avinash Kumar who conducted the post-mortem of the deceased as P.W.4 and P.W.5 respectively. Constable Tulsi Ram who had prepared the chick report was examined as P.W.6. S.I. Lalit Kumar, the investigating officer of the case was examined as P.W.7 who had investigated the case and submitted charge-sheet against the appellant and the co-accused. The learned trial judge has examined three Court witnesses namely Raj Kumar Bhadoriya, Principal of Primary School, Goran, District Jalaun as C.W.1, Tulsi Das Raj Poot, Gram Vikas Adhikari as C.W.2 and Ram Kishan Gupta witness of last seen as C.W.3. 9. The statement of the appellant was recorded under Section 313 Cr.P.C. who denied all the incriminating circumstances put against him and submitted that he had been falsely implicated by the complainant who is his maternal uncle. He is residing with his grand mother (Nani). He has been made scape goat by the complainant so as to usurp the property of his grand mother. Further statement of the appellant under Section 313 Cr.P.C. was recorded wherein he abjured with regard to recovery of blood from his house. He is residing with his grand mother (Nani). He has been made scape goat by the complainant so as to usurp the property of his grand mother. Further statement of the appellant under Section 313 Cr.P.C. was recorded wherein he abjured with regard to recovery of blood from his house. He further averred that no such steps were taken in respect of recovery of blood rather he has been roped in the present case with an oblique design of usurping the property by getting him executed. 10. On the appraisal and appreciation of evidence on record, the trial Court opined that it is a case of circumstancial evidence which has been fully proved by the prosecution. It was held that the appellant was last seen alongwith the victim by Devi Dayal (P.W.2) and Rajesh Kumar Mishra (P.W.3) taking Polla (namkeen) from the shop of Ram Kishun Gupta (C.W.3). Ram Kishun Gupta, C.W.3 who is an independent witness has also stated that Mahendra Pal Singh and Raja Babu were seen at his shop alongwith victim at about 4.00 p.m. who purchased Pola for her. Devi Dayal and Rajesh Misra were already sitting there. It was further held that despite hectic efforts, the victim could not be searched through out night and on the next day corpse of the victim was found in a narrow lane of Shyam Sunder and Manik Chandra in a jute sack. The appellant Mahendra Pal Singh and the co-accused Raja Badu were arrested and had confessed their guilt. Accused Mahendra Pal Singh and Raja Babu were taken into custody and were carried at the house of Mahendra Pal wherefrom blood stained earth was recovered from which it is clearly established that the victim was taken inside the house and was subjected to coetus by both the accused persons and in order to conceal their evil deed, the victim was eliminated with diabolical ingenuity. The guilt of the appellant was fully proved to the hilt under Sections 302/376/201 IPC. The learned trial judge found that the act of the appellant was very gruesome and monstrous as he had committed murder of 3’1/2 year old girl in order to satisfy his lust and after keeping the dead body in a jute sack threw in a narrow lane. The learned trial judge found that the act of the appellant was very gruesome and monstrous as he had committed murder of 3’1/2 year old girl in order to satisfy his lust and after keeping the dead body in a jute sack threw in a narrow lane. The act of the accused appellant who is none else than the cousion of the victim, comes within the precinct of rarest of rare case for which he deserves to be granted exemplary punishment of execution. 11. The appellant was saddled to capital punishment and was directed to be executed till his last breath. 12. It is submitted by the learned counsel for the appellant that the case of appellant rests on circumstantial evidence. There is not a solitary evidence connecting the appellant with the commssion of the alleged crime. The conviction is solely based upon last seen evidence of Devi Dayal (P.W.2) and Rajesh Kumar Mishra (P.W.3). Devi Dayal (P.W.2) is the brother of the complainant (Hemraj) and Rajesh Kumar Mishra (P.W.3), the village Pradhan is the scribe of the FIR. They despite having seen the victim in the company of the accused appellant and Raja Babu did not divulge to the complainant that they had lastly seen the victim in their company in the evening of 30.1.2011 in front of the shop of Ram Kishun Gupta C.W.3 (who has been examined as Court Witness No. 3 by the trial Court). In case P.W.2 Devi Dayal and P.W.3 Rajesh Kumar had seen the victim in the company of the accused persons, this fact must have been narrated in the First Information Report when Rajesh Kumar Mishra was the scribe of the FIR. Thus not naming the accused appellant and Raja Rabu in the First Information Report is fatal to the prosecution case. Nothing has been elicited by the witnesses as to why they have not disclosed this material fact to the complainant when it was within their knowledge and hectic efforts were made to trace the corpus of the victim till late night when the dead body was recovered on the next day at about 10.00 a.m. prior to lodging of the First Information Report. It is highly improbable that despite Munadi (beat of drum) being done with regard to missing of the victim on 30.1.2011 yet the witnesses who were residing in the close vicinity of the complainant could not muster courage to come forward to divulge this fact that the victiim was last seen by them in the company of the accused appellant and one Raja Babu. Further in the statement of the complainant it has surfaced that one Prem Lata Sharma had divulged about the name of the accused appellant and one Raja Babu. On 3.2.2011, the statement of son of Devi Dayal P.W.2 namely Pradeep Kumar and daughter Radha were recorded under Section 161 Cr.P.C. who had heard shriek and shrill emanating from the house of the appellant Mahendra but they were never produced and examined during the course of trial. When allegedly the name of the appellant and Raja Babu surfaced on 3.2.2011, they were arrrested and on the pointing of the appellant blood stained earth was allegedly recovered from his house. The last seen witnesses P.W.2 Devi Dayal and P.W.3 Rajesh Kumar were made witness of recovery of blood from the stairs of house of the appellant. It is further contended by the learned counsel for the appellant that the said recovery is inadmissible in evidence and is hit by Section 27 of the Evidence Act for the reason that the investigating officer P.W.7 Lalit Kumar Singh had not deposed any discloser statement made by the appellant. The alleged recovery of jute sack, match box, biri and iron rod from which finger prints were taken by the scientific expert team. Blood stained earth and apparels of the deceased were sent for examination to FSL Agra where the report was prepared on 9.3.2012 but the same did not tally with the prosecution version whether it was human blood or of any animal which creates doubt about the recovery of blood stained earth from the house of the appellant. It is highly unthinkable that the appellant would dare to commit such gruesome and dastardly crime who is cousin of the victim that too while residing in the close vicinity. It is highly unthinkable that the appellant would dare to commit such gruesome and dastardly crime who is cousin of the victim that too while residing in the close vicinity. There is no incriminating material to authenticate that the appellant had committed any monstrous act of eliminating his own cousin aged about 3’1/2 and after ravishing her chastity and virginity and putting the corpse in a jute bag for throwing in a narrow lane to cause disappearance of evidence. When the drum beating was done, the appellant himself accompanied the complainant and extended full help in searching out the victim. At that stage there was no whisper made by Devi Dayal (P.W.2) and Rajesh Kumar (P.W.3) with regard to the complicity of the appellant. The appellant has been inducted in the present case merely on suspicion and speculation so as to grab the property which belongs to his grand mother and the complainant was highly curious to preclude the appellant from claiming the property of his grand mother. The son and the daughter of Devi Dayal (P.W.2) who alleged to have heard the shriek and screaming of the victim from the house of the appellant were examined by the investigating officer under Section 161 Cr.P.C. but the prosecution failed to examine them during trial to corroborate material about the last seen version of Devi Dayal (P.W.2) and Rajesh Kumar Mishra (P.W.3). The learned trial judge has committed manifest error by not appreciating the evidence on record in correct perspective and proceeded with the matter on erroneous and wrong assumptions. 13. It is further contended by the learned counsel for the appellant that medical evidence also does not corroborate the prosecution version as at the time of inquest no injury on the private part of the deceased was found by Km. Rubina Women Assistant Scientific Expert. Even no blood was found on the victim’s cloth but the doctor who conducted autopsy found blood on her under garment. The doctor had not found any injury on her private part and hence came to the correct conclusion with regard to no spermatozoa dead or alive found on the examination of vaginal smear thus the evidence of the witnesses is also not trustworthy and is not corroborated by the medical evidence. The doctor had not found any injury on her private part and hence came to the correct conclusion with regard to no spermatozoa dead or alive found on the examination of vaginal smear thus the evidence of the witnesses is also not trustworthy and is not corroborated by the medical evidence. The accused appellant has been convicted only on the sole testimony of last seen evidence which has been disclosed by Devi Dayal (P.W.2) and Rajesh Kumar (P.W.3) much after an unexplained and inordinate delay after lodging of the F.I.R. in consultation with the complainant. The guilt of the appellant has not been proved beyond reasonable doubt.The appellant has been falsely implicated in the present case at the cost of usurping the property of his maternal grand mother (Phularani). The appellant had ensued property dispute with Hemraj (P.W.1) and Devi Dayal (P.W.2) who are his maternal uncle. Though it has held that both were inimical with the appellant yet their testimony was believed by the trial Court. Besides being father and uncle of the deceased, they are interested witnesses. The trial Court has committed manifest error in relying upon their deposition who are convicted persons. There is no positive evidence to support the prosecution version. The Director of finger Print Bureau Lucknow in its report dated 6.8.2011 clearly came out with the definite opinion that the sample of finger prints of the appellant did not match with the finger prints found on the match stick, iron rod, bidi seized from the spot. The report of expert is an admissible piece of evidence under Section 293 Cr.P.C. Hence, the conviction and sentence has been awarded to the appellant on misappraisal and misappreciation of evidence on record when the testimony of the last seen evidence of Ram Kishun Gupta C.W.3 is full of suspicion and not free from doubt at all. The C.W.3 Ram Kishan Gupta who was living near the house of P.W.2 Devi Dayal and heard missing of the girl and Munadi was made but did not disclose to the complainant about seeing her in the company of the appellant. He had not deposed with certainty that he was sitting in his shop on the day of incident. The C.W.3 Ram Kishan Gupta who was living near the house of P.W.2 Devi Dayal and heard missing of the girl and Munadi was made but did not disclose to the complainant about seeing her in the company of the appellant. He had not deposed with certainty that he was sitting in his shop on the day of incident. He also did not recognize the appellant in the Court from a distance of three feet due to poor eye sight therefore, it is highly doubtful that he had seen the victim alongwith the appellant at his shop. After his statement recorded as a Court witness the appellant was examined under Section 313 Cr.P.C. who categorically denied and stated that under pressure of complainant, the C.W.3 is deposing against him due to village factionalism. Thus all the witnesses have been set up to create last seen evidence to somehow implicate the appellant. The learned trial Court has disbelieved the evidence of Devi Dayal, P.W.2 and Rajesh Kumar P.W.3 as last seen witnesses, yet convicted the appellant which is unsustainable. 14. The trial Court has also erred in holding that the appellant was absconding after committing the alleged crime from his house. To buttress his submissions learned counsel for the appellants has relied upon the following decisions of this Court and of the Apex Court. 1. Mousam Singha Roy v. State of West Bengal, 2003 Law Suit (SC) 781. 2. Matru v. State of U.P., 1971 Law Suit (SC) 168. 3. Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 . 4. Rishipal v. State of Uttarakhan, 2013 Law Suit (SC) 78 5. Raghunath v. State of Haryana, 2002 Law Suit(SC) 1086. 6. State of Rajasthan v. Raja Ram, 2003 Law Suit (SC) 746. 7. Hem Raj v. State of Haryana, 2005 Law Suit (SC) 552. 8. Shyama Charan Sri Ram Saran v. State of U.P., AIR 1969 Alld. 61 9. Abdul Khalil and others v. Emperor, AIR 1930 ALLd. 786 10. Sattatiyha @ Satish Rajanna v. State of Maharashtra, 2008 (3) SCC 210 . 11. Bodh Raj @ Bodha and others v. State of Jammu & Kashmir (Criminal Appeal No. 921 of 200) decided on 3.9.2002. 12. Kansa Behera v. State of Orissa, 1987 AIR 1507. 13. State of Gujarat v. Kishanbhai and others, (2014) 5 SCC 108 . 14. Sattatiyha @ Satish Rajanna v. State of Maharashtra, 2008 (3) SCC 210 . 11. Bodh Raj @ Bodha and others v. State of Jammu & Kashmir (Criminal Appeal No. 921 of 200) decided on 3.9.2002. 12. Kansa Behera v. State of Orissa, 1987 AIR 1507. 13. State of Gujarat v. Kishanbhai and others, (2014) 5 SCC 108 . 14. Chhotu @ Ajay v. State of U.P., 2013 (82) ACC 102. 15. Rattan Chand v. State of Himachal Pradesh, Cr.LJ 2002 (1598). 15. In the light of the aforesaid settled legal proposition, the appellant deserves to be acquitted and the judgment and order passed by the trial Court which is not sustainable in the eyes of law deserves to be set aside. 16. Per contra learned Government Advocate opposed the contention advanced by the learned counsel for the appellant by submitting that the prosecution case rests upon the last seen evidence of P.W.2 Devi Dayal and P.W. 3 Rajesh Mishra who had disclosed to the complainant that the victim was last seen in the company of the appellant and the co-accused Raja Babu.The accused appellant had betrayed the confidence of victim’s parents by taking her to his house so as to ravish her virginity and chastity and the appellant and co-accused Raja Babu had committed monstrous act of outraging her modesty and committed murder so as to efface the evidence putting her corpse in a jute sack in a narrow lane near the house of the complainant. The delay on the part of the P.W.2 Devi Dayal and P.W.3 Rajesh Mishra in not disclosing the fact that the victim was lastly seen with the appellant and the co-accused Raja Babu would not overshadow the entire prosecution version. The post-mortem report of the deceased conspicuously points out that the victim was subjected to coitus and was done to death in a very inhuman and gruesome manner. The blood was traced inside the house of the appellant which was locked. A number of injuries were found on the neck of the victim by the doctor who conducted her autopsy. Last seen evidence coupled with recovery of blood from the appellant’s house and on the basis of the statement of the accused appellant made before the investigating officer which distinctly relates to the factum of recovery is admissible under Section 27 of the Evidence Act. Last seen evidence coupled with recovery of blood from the appellant’s house and on the basis of the statement of the accused appellant made before the investigating officer which distinctly relates to the factum of recovery is admissible under Section 27 of the Evidence Act. The post-mortem report and the doctors statement that the victim was raped and murdered are all incriminating circumstances which are sufficient to prove the guilt of the accused appellant. 17. The last seen evidence of the P.W.2 and P.W.3 Devi Dayal and Rajesh Mishra and the Court witnesses Ram Kishun Gupta (C.W.3) stands fully explained by the trial Court. Mere non-mentioning the name of the appellant in the F.I.R. does not topple down the entire prosecution version. Nothing has been elicited by cross-examining the witnesses by the defence on this point. Hence the appellant cannot deriveany benefit. If the complainant wanted to implicate the appellant, his name would have found place in the F.I.R. itself. No adverse inference can be drawn from the alleged delay in disclosure of the name of the appellant and the co-accused by the P.W.2 and P.W.3 as it would have brought indelible scandal in the family of the complainant. There is connecting circumstances to corroborate that the murder of the victim was done to avoid detection of the misdeed of the appellant. If a rape victim is done to death, the intention of the accused is inferred from his act and the conduct coupled with the surrounding circumstances. It is also to be taken into consideration that in cases where the evidence is of a circumstantial nature and the circumstances from which the conclusion of guilt has been drawn has fully been established and all the facts so established are consistent with the hypothesis of the guilt of the accused. The learned counsel for the State invited our attention to the evidence of the prosecution which is based on recording of the oral evidence supported by medical evidence justifying the conviction and sentence awarded against the appellant. 18. He further submitted that the circumstances are of a conclusive nature and tendency to exclude every hypothesis except the complicity of the appellant and the co-accused. There is a complete chain of evidence to leave any reasonable doubt with regard to the innocence of the accused appellant. 18. He further submitted that the circumstances are of a conclusive nature and tendency to exclude every hypothesis except the complicity of the appellant and the co-accused. There is a complete chain of evidence to leave any reasonable doubt with regard to the innocence of the accused appellant. There is sufficient incriminating material to show that within all human probability the act must have been done by the accused appellant and the co-accused. 19. The learned trial judge has considered the mitigating and aggravating circumstances and has found that the appellant was earlier involved and charged for offences under Section 376/506 IPC and Section 3 (2) (5) of S.C. & S.T.Act though acquitted as the prosecution witnesses turned hostile vide Sessions Trial No. 27 of 2001 which shows that there are no chances of mending his ways hence the appellant was convicted with capital punishment. The judgment and order passed by the trial Court does not suffer from any infirmity and deserves to be sustained. 20. We have considered the submissions advanced by the learned counsel for the appellant and the learned AGA for the State and have also gone through the entire material on record. 21. After the analysis of the facts and circumstances it emerges out that the entire prosecution version is based upon the circumstantial evidence. The chain of circumstances are of such a conclusive nature which unerringly points towards the guilt of the appellant. The appellant has been awarded death sentence by the learned trial judge on the appreciation of entire evidence holding him guilty of committing rape on a minor girl aged about 3’1/2 years and throttling her to death. There is high degree of certainty showing the participation of the appellant in commission of the crime as the minor girl was done to death after outraging her virginity and chastity. 22. At the cost of repetition, the learned trial judge had marshelled the materials and relied upon the following incriminating circumstances : 1. The appellant was last seen on 30.1.2011 at about 4.00 p.m. by P.W. 2 and P.W.3 Devi Dayal and Rajesh Kumar Mishra at the shop of Ram Kishun Gupta (C.W.3). The appellant purchased Polla from the shop of Ram Kishun Gupta (C.W.3) and thereafter the appellant and Raja Babu (co-accused) proceeded towards the house of the complainant (Hemraj). 2. The victim was not found alive. The appellant purchased Polla from the shop of Ram Kishun Gupta (C.W.3) and thereafter the appellant and Raja Babu (co-accused) proceeded towards the house of the complainant (Hemraj). 2. The victim was not found alive. Her corpse was recovered kept inside a jute bag on 31.1.2011 at about 10.00 a.m.from a narrow lane existing between the house of Shyam Sunder and Manik Chand near the house of the complainant. 3. On 4.2.2011, the appellant and the co-accused Raja Babu were arrested. On the pointing of the appellant and the Raja Babu, blood stained earth was collected from the house of the appellant which was in the special knowledge of the appellant and the co-accused. 4. The post-mortem of the victim was conducted on 1.2.2011 at about 3.00 p.m. where the doctor found four abrasion, one lacerated wound. The time of death was shown two days old. In the opinion of the doctor, the victim was ravished and thereafter done to death. The victim died as a result of shock and ante-mortem injuries. 5. The Court witness Ram Kishun Gupta examined as C.W.3 was an important witness from whose shop the appellant purchased Pola for the victim and had seen him lastly. His testimony has strengthened the evidence of last seen witnesses namely Devi Dayal (P.W.2) and Rajesh Kumar Misra (P.W.3). 6. The report of Forensic Laboratory (Paper No. 93) Ka) which proved presence of human blood on item No. 1-3. The undergarment of the victim and on item No. 6-8, earth plain and blood stained earth, swab, jute bag clinchingly lend support to the prosecution version that the victim was ravishedby the appellant. Thereafter she was murdered in a very gruesome and grotesque manner and in order to erase the evil deed dumped her body in a jute sack. 7. The appellant was earlier charged for offence under Section 376/506 IPC and had stood trial being Sessions Trial No. 27 of 2001 though acquittedwas an aggravating circumstances to punish him with capital punishment. Thereafter she was murdered in a very gruesome and grotesque manner and in order to erase the evil deed dumped her body in a jute sack. 7. The appellant was earlier charged for offence under Section 376/506 IPC and had stood trial being Sessions Trial No. 27 of 2001 though acquittedwas an aggravating circumstances to punish him with capital punishment. The law relating to the case based on circumstantial evidence is well established which has been dealt with in great circumspection and sagacity in Sharad Birdhichand Sharda v. State of Maharashtra, AIR 1984 SC1622, the following observations were made: (1) “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) 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, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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. 23. Keeping in view the aforesaid principles of law relating to circumstantial evidnce, we intend to consider the main thrust of argument of the learned Court for the appellant that the the absence of name of the accused appellant in the FIR points towards the innocence and entitles him for acquittal. 24. 23. Keeping in view the aforesaid principles of law relating to circumstantial evidnce, we intend to consider the main thrust of argument of the learned Court for the appellant that the the absence of name of the accused appellant in the FIR points towards the innocence and entitles him for acquittal. 24. Initially in the First Information Report, the name of the accused appellant and the co-accused Raja Badu did not find mention and during the course of investigation it has surfaced that the victim was last seen in the company of the accused appellant and the co-accused Raja Babu who had committed devillish and monstruous act of ravishing the modesty and virginity of the victim and committed her murder in a gruesome and diabolic ingenunity so as to blot out the evidence.The involvement of the accused appellant has been corroborated not only by last seen evidence of the witnesses but also from the recovery of blood stained earth from his house on the confessional statement of the appellant in the presence of the witnesses of last seen. 25. The Apex Court in the case of Jitendra Kumar v. State of Haryana, (2012) 6 SCC 204 , has exhaustively dealt with similar situation regarding non-mentionining of the name of the accused in the FIR. “16. As already noticed, the FIR (Ext.P-2) had been registered by ASI Hans Raj, PW 13 on the statement of Ishwar Singh, PW 11. It is correct that the name of accused Jitender, son of Sajjan Singh, was not mentioned by PW 11 in the FIR.However, the law is well-settled that merely because an accused has not been named in the FIR would not necessarily result in his acquittal. An accused who has not been named in the FIR, but to whom a definite role has been attributed in the commission of the crime and when such role is established by cogent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty. Every omission in the FIR may not be so material so as to unexceptionally be fatal to the case of the prosecution. Every omission in the FIR may not be so material so as to unexceptionally be fatal to the case of the prosecution. Various factors are required to be examined by the Court, including the physical and mental condition of the informant, the normal behaviour of a man of reasonable prudence and possibility of an attempt on the part of the informant to falsely implicate an accused. The Court has to examine these aspects with caution. Further, the Court is required to examine such challenges in the light of the settled principles while keeping in mind as to whether the name of the accused was brought to light as an afterthought or on the very first possible opportunity. 17. The Court shall also examine the role that has been attributed to an accused by the prosecution. The informant might not have named a particular accused in the FIR, but such name might have been revealed at the earliest opportunity by some other witnesses and if the role of such an accused is established, then the balance may not tilt in favour of the accused owing to such omission in the FIR. 18. The Court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P.” Therefore, the contention of the appellant that since his name did not appear in the FIR, he is entitled to acquittal, is not maintainable. Reference in this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P.” Therefore, the contention of the appellant that since his name did not appear in the FIR, he is entitled to acquittal, is not maintainable. The aforesaid decision has been approved by the Apex Court in Ramesh v. State through Inspector of Police, 2014 (2) SCC (Criminal Ruling) 1729, where Apex Court has upheld and confirmed the conviction and sentence awarded by the trial Court and the High Court in a case of rape on a minor girl who was done to death by the accused not named in the FIR and was charged under Section 376/302/201 IPC. Therefore, we intend to hold that non-mention of the name of the appellant and the co-accused Raja Babu in the initial First Information Report will not prove fatal to the case of the prosecution. The learned counsel for the appellant has made feeble attempt to create dent in the prosecution case to prove the innocence of the appellant. Much has been argued with regard to the presence of the witnesses to create doubt about their testimony who had seen lastly the appellant alongwith victim. In this aspect of last seen theory, it has been held by the Apex Court in Ramesh v. State through Inspector of Police (Supra) relying upon the verdict of Kusuma Ankama Rao v. State of Andhra Pradesh (2008) 13 SCC 257 as under : “10. So far as the last-seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish, it was noted as follows: (SCC p. 123, para 22) “22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any otherpositive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” (emphasis laid by this Court) In Ramreddy Rajesh Khanna Reddy v. State of A.P., it was noted as follows: (SCC p. 181, para 27) “27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the Courts should look for some corroboration.” Further in the case of Govinda Reddy and another v. State of Mysore, AIR 1960 SC 29 , the Hon’ble Constitutional Bench of Apex Court has held as under : “5. The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh and it is as follows: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 26. We unerringly come to the conclusion that that there is involvement of the appellant in the commission of the alleged crime. We unerringly come to the conclusion that that there is involvement of the appellant in the commission of the alleged crime. The overt act of the appellant alongwith co-accused Raja Babu accompanied with his past conduct at the relevant spur of the moment is fully proved from the statement of the P.W.2 and P.W.3 Devi Dayal, Rajesh Mishra and C.W.3 Ram Kishan Gupta. There is sufficient evidence to prove the guilt of the appellant as the doctor who had conducted autopsy of the deceased proved the injury No. 5 due to forcible intercourse and held that the murder of the victim was committed by throttling and before her death she was raped. The forensic expert had submitted its report with regard to the examination of blood stained clothes of the victim that human blood was found but no semen was found on the underwear of the deceased.The learned trial judge observed that the report also lends support to the prosecution version that the circumstantial evidence and incriminating facts have appeared to be incompatible with the innocence of the accused. There is ample evidence qua recovery of blood stained earth from the house of the appellant to establish the guilt of the appellant beyond unimpeachable shadow of doubt. All the circumstances were of conclusive nature and the chain of evidence conspicuously shows that within all human probability the act has been done by the appellant. The manner in which the victim was done to death has portrayed very inhuman and gruesome state of mind of the appellant and the co-accused. In the course of cross-examining the prosecution witnesses, defence side has tried to evolve a story of false implication to overshadow the testimony of the last seen evidence. It cannot be doubted that the P.W.2 and P.W.3 Devi Dayal and Rajesh Kumar Mishra had not seen the appellant and the co-accused at the shop of C.W.3 Ram Kishan Gupta. The time gap between the deceased last seen alive in the company of the appellant and when she was found dead in a jute bag only shows the conduct of the appellant that the minor girl was subjected to coitus and was done to death in a very inhuman and devilish manner so as to obliterate the evidence. The time gap between the deceased last seen alive in the company of the appellant and when she was found dead in a jute bag only shows the conduct of the appellant that the minor girl was subjected to coitus and was done to death in a very inhuman and devilish manner so as to obliterate the evidence. The unnatural conduct of the appellant in extending help to trace out the victim on the fateful day would not shake the testimony of the prosecution witnesses. All the circumstances referred by the trial Court are clinching and lend assurance to the correctness of the version of the witnesses. Interestedness and relationship of the witness is not a factor to effect their credibility. It is more often that a relation would not conceal the actual culprit and make allegation against an innocent person. The appellant was not named in the FIR by the complainant. The confession made by the appellant inspire confidence which cannot be consistent with the ordinary human conduct. 27. Upon examining the above conspectus it emerges out that the accused appellant did not explain as to why he in his statement under Section 313 Cr.P.C. showed his ignorance when the appellant and the co-accused Raja Babu confessed their complicity under Section 161 Cr.P.C. which was corroboroated by the recovery of blood stained earth from the house of the appellant in the presence of last witnesses. Moreover, the house of the appellant was locked and it was opened in the presence of the investigating officer who found blood near the stairs inside his house. The appellant while he was in custody stated about the circumstances of the crime which led to the recovery of blood from his house in consequence of the information thus received from him becomes admissible under Section 27 of the Evidence Act i.e. the doctrine of confirmation by subsequent event. The decision of Privy Council in Palukuri Kotyya v. Emperor, AIR 1947 (67) is the most quoted authority in support of “fact discovered’’ envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it but the information given must relate distinctly to that effect. The decision of Privy Council in Palukuri Kotyya v. Emperor, AIR 1947 (67) is the most quoted authority in support of “fact discovered’’ envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it but the information given must relate distinctly to that effect. Thus in the instant case, the blood stain earth was recovered at the instance of the appellant from his house while he was in custody and the recovery of corpse was also made by the investigating officer in the presence of the witnesses, therefore, the trial Court was justified in holding that all the circumstances points towards the guilt of the accused appellant being the author of the gruesome and diabolic rape and murder of the victim. 28. Coming to the aspect as to whether death sentence awarded by the trial Court should be maintained or death penalty ought to have been converted into lesser punishment. We feel to look of what is law on the point. Under the old Code of Criminal Procedure ample discretion was given to the Court to pass death sentence as a general proposition and the alternative sentence of life imprisonment could be awarded in the exceptional circumstances and that too after advancing special reasons for deviating from the general rule. Under the New Code of 1973 the rule has absolutely been changed. A sentence for life imprisonment is now the rule and the capital punishment is an exception. It has also been made obligatory upon the Court to record special reasons if capital punishment is to be awarded. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 , Constitutional Bench of the Apex Court upheld the constitutional validity of the death sentence holding that as a legal principle death sentence is still awardable by the Court only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed. The Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. The aggravating and mitigating circumstances may vary from case to case in the name of individualised sentencing. The Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. The aggravating and mitigating circumstances may vary from case to case in the name of individualised sentencing. It is not possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case. The object of law is protection of society. What has to be considered in awarding appropriate sentence are the nature of the crime, the motive, the conduct of the accused. It is incumbent to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. The case in hand is of such a nature in which it may be said that the punishment awarded to the appellant was grossly disproportionate and inadequate. It is a devillish crime committed to satiate sexual lust. The appellant’s lust having overcome, he committed the crime. 29. Having regard to the overall facts and circumstances of the case, it emerges out that this case does not fall within the category of the rarest of rare cases where capital sentence is indispensable. This Court is reluctant in endorsing the death sentence. We modify the judgment and order passed by the Court below substituting the death sentence into life imprisonment under Section 302 IPC and direct that the appellant shall not be released from the prison till the rest of his life. All the sentences awarded under different sections of IPC shall run concurrently. 30. Resultantly the reference pursuant to the order dated 24.6.2015 fails and is hereby dismissed. The appeal is partly allowed with the aforementioned modifications in the judgment and order dated 22.6.2015 and 24.6.2015 passed by the Additional Sessions Judge, (FTC) Orai. 31. The office is directed to transmit the lower Court record forthwith for necessary compliance. 32. Judgment be certified and be placed on record.