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2017 DIGILAW 2589 (RAJ)

DINESH KUMAR v. STATE OF RAJASTHAN

2017-11-24

KAILASH CHANDRA SHARMA, SABINA

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JUDGMENT : SABINA, J. 1. Appellant had faced trial in FIR No. 726/2009 registered at Police Station Behror, District Alwar for the offence under Sections 376(2)(f), 302 and 201 of Indian Penal Code, 1860. 2. FIR was registered at the instance of complainant Deshraj Yadav. As per the FIR, Priyanka aged about 9/10 years had left her house at about 9/9.30 A.M. to serve meals to her maternal great grand father. However, Priyanka did not return home up to 5.00 P.M. On search, dead body of Priyanka was recovered from the fields of Virendra Yadav. Priyanka had been raped and later strangulated with the help of a plastic rope. 3. After completion of investigation and necessary formalities, challan was presented against the appellant. Charges were framed against the appellant under Sections 376(2)(f), 302 and 201 of Indian Penal Code, 1860. 4. During trial, prosecution in order to prove its case, examined 26 witnesses. 5. Appellant when examined under section 313 of Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case. Appellant did not examine any witness in his defence. 6. Trial Court vide judgment/order dated 18.10.2011 ordered the conviction and sentence of the appellant under Sections 376(2)(f), 302 and 201 of Indian Penal Code, 1860. Hence, the present appeal by the appellant. 7. Learned counsel for the appellant has submitted that the prosecution had miserably failed to prove its case. There was no evidence on record to establish that the rape or the murder of the deceased had been committed by the appellant. 8. Learned State counsel who is assisted by the learned counsel for the complainant has opposed the appeal. Learned counsel for the complainant has submitted that the prosecution had been successful in proving its case. Goodari stained with semen and human blood and Rope had been recovered at the instance of the appellant. One obscene book was also recovered at the instance of the appellant. Clothes of the appellant were also taken in possession during investigation, which also establish that the offence had been committed by the appellant. From the circumstantial evidence available on record, it was duly established that the offence had been committed by the appellant. Report of the Forensic Science Laboratory also supports the prosecution case. 9. Clothes of the appellant were also taken in possession during investigation, which also establish that the offence had been committed by the appellant. From the circumstantial evidence available on record, it was duly established that the offence had been committed by the appellant. Report of the Forensic Science Laboratory also supports the prosecution case. 9. Present case relates to rape and murder of Priyanka aged about 9/10 years. As per the prosecution case, Priyanka had been raped, and thereafter, murdered. Case rests on circumstantial evidence. 10. Hon'ble the Supreme Court in Gamparai Hrudayaraju v. State of A.P., AIR 2009 Supreme Court 2364, has held as under:- "There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, ( AIR 1952 SC 343 ), wherein it was observed thus: "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 be 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." A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, ( AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (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." 11. Let us examine the evidence on record to come to a conclusion as to whether prosecution has been successful in establishing the chain of circumstances to establish that the offence in question had been committed by the appellant. 12. PW-1 Babu Lal and PW-5 Rajesh Kumar witnesses with regard to preparation of site plan and recoveries at the spot, have not supported the prosecution case. 13. PW-2 Rohitash and PW-3 Dev Dutt witnesses with regard to recovery of Shoe from the spot, have also not supported the prosecution case. 14. PW-4 Sushila has also not supported the prosecution case during trial. 15. PW-6 Ramavatar has deposed that Priyanka was residing with her. Priyanka was aged about 8-9 years and was a student of 5th Class. She further stated that Priyanka had gone to Dharamshala, and thereafter, she had been taken to the mustard fields by somebody on enticement and a bad act had been committed with her, and thereafter, she had been strangulated. She further stated that the dead body of Priyanka was recovered from the mustard fields. 16. PW-7 Vimla has corroborated the statement of PW-6 Ramavatar. 17. She further stated that the dead body of Priyanka was recovered from the mustard fields. 16. PW-7 Vimla has corroborated the statement of PW-6 Ramavatar. 17. PW-8 Ishwar Singh deposed that Priyanka was his daughter and was residing with her maternal grand father. He received a phone call that Priyanka had been murdered. Thereafter, they reached the spot and saw the dead body of Priyanka. 18. Complainant Deshraj Yadav while appearing in the witness box as PW-9 deposed that Priyanka was residing with his elder brother Ramavatar. Priyanka was a student of 5th Class and she had gone to Dharamshala from her house, but had failed to return. They searched for Priyanka. He did not know whether Priyanka was had found dead or alive. In his cross-examination, he deposed that the accused was his son. 19. PW-10 Dr. Ajeet Yadav deposed that he had medically examined the accused and he was capable of performing sex. 20. PW-11 Dr. Pushpendra proved the postmortem examination report Exhibit-P-12. As per postmortem examination report, the cause of death of the deceased Priyanka was asphyxia due to strangulation. On vaginal examination of the deceased, multiple injuries were found. 21. PW-14 Inderjeet Yadav did not support the prosecution case during trial and stated that he could not identify the accused. 22. PW-15 Sitaram deposed with regard to recovery of Goodari at the instance of the appellant. 23. PW-16 Ajay Kumar did not support the prosecution case during trial. In his cross-examination, he deposed that the appellant was of good character. 24. PW-20 Suman Devi deposed that Priyanka was her daughter. She further stated that the character of the appellant was not good. Some obscene books had been recovered from him. Mother of the appellant was saying that her son has been falsely involved in this case. Appellant used to come to their house every day and used to tease her daughter. She suspected that appellant has done a wrong act with her daughter. Since the police had arrested the appellant, she had suspicion on the appellant. In her cross-examination, she deposed that they had not lodged any complaint against the appellant. She also admitted that in her statement recorded before the Police, she had not stated that the appellant used to come to their house every day and tease her daughter. Since the police had arrested the appellant, she had suspicion on the appellant. In her cross-examination, she deposed that they had not lodged any complaint against the appellant. She also admitted that in her statement recorded before the Police, she had not stated that the appellant used to come to their house every day and tease her daughter. She had also not stated in her statement before the Police that obscene books had been recovered from the appellant. 25. PW-26 Mali Ram deposed with regard to the investigation conducted by him. 26. Exhibit-P-25 is the report of Forensic Science Laboratory. A perusal of the same reveals that semen could not be detected on Salwar, Underwear of the deceased and on the Goodari and on the Pant of the accused. 27. As per Exhibit-P-26, another report of the Forensic Science Laboratory, no conclusion could be drawn on the garments of the victim and accused with regard to blood detection. 28. Thus, from a perusal of the above evidence, it is evident that the appellant was not last seen with the deceased. There is no other connecting evidence on record to establish that the offence in question had been committed by the appellant. Although, it is the prosecution story, that Goodari was recovered at the instance of the appellant, which was stained with semen and blood. However, the report of the Forensic Science Laboratory does not support the prosecution version in this regard. Rather as per the report of Forensic Science Laboratory, no semen was detected on the Goodari or the Pant of the appellant or the Salwar and Underwear of the deceased. Although, human semen was detected on the vaginal swab of the deceased, but the said fact in itself is not sufficient to hold that the offence in question had been committed by the appellant. In the present case, the offence in question is serious in nature as minor girl aged about 9/10 years has been raped and murdered, but the prosecution is required to bring on record the complete chain of events, which must show that within all human probability, the offence had been committed by the appellant. However, in the present case, prosecution has failed to bring on record the complete chain of circumstances, which would lead to the irresistible conclusion that the offence in question had not been committed by the appellant. However, in the present case, prosecution has failed to bring on record the complete chain of circumstances, which would lead to the irresistible conclusion that the offence in question had not been committed by the appellant. As per the mother of the deceased, she had named the appellant as an accused on account of suspicion and she has further stated that the appellant had been arrested by the police and so she had a suspicion against him with regard to the commission of offence. Suspicion, howsoever, strong cannot take place of proof. Appellant cannot be convicted merely on the basis of suspicion. The fact that an obscene book was recovered from the appellant during investigation, would also not lead to the inference that the offence of rape and murder had been committed by the appellant. It is the settled proposition of law that prosecution has to prove its case by leading cogent and convincing evidence and whenever a doubt arises in the prosecution story, benefit of the same has to be extended to the accused. Rather, in the present case, there is no material on record to conclude that the offence in question had been committed by the appellant. 29. In the facts and circumstances of the present case, appellant is liable to be acquitted by giving him benefit of doubt. 30. Accordingly, appeal is allowed. Appellant is acquitted of the charges framed against him. Consequently, judgments/orders dated 18.10.2011 passed by the Trial Court are set aside. Appellant, who is in custody be set at liberty forthwith, if not required in any other criminal case.