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2019 DIGILAW 643 (ALL)

Satya Prakash Gupta @ Satta v. State Of U. P.

2019-03-08

PANKAJ NAQVI, UMESH KUMAR

body2019
JUDGMENT : Hon'ble Pankaj Naqvi, J. This criminal appeal assails the judgment and order dated 13.8.2004 passed by Addl. District & Sessions Judge (Fast Track Court No.3), Firozabad in S.T. No.179 of 2002, convicting the appellants under Section 302 IPC to life imprisonment with fine of Rs.1000/-each, and under Section 377 IPC to 5 years R.I, with fine of Rs.1000/-each. Both the sentences were to run concurrently. 1. The case of the prosecution in brief is that son of PW-2 aged about 12 years left his house on 6.7.2001 at about 8:00 P.M, after meals for a hotel, where he was working, but did not return. PW-2 came to be informed by a milk vendor next morning at 7:00 that a body of a child has been found at the T.B. Ground, which PW-2 identified to be that of his son. On above allegations, PW-2 lodged an FIR (Exbt. Ka-14) at about 9:15 A.M, some day. 2. PW-3, a last seen witness, a rickshaw puller was waiting outside the T.B. Ward for passenger at about 11:00 P.M, on the fateful night. He saw the two accused and the victim along with them entering the T.B. Ward. He enquired from the accused as to how come they were there, to which they replied that they had come to see a patient. The victim stated that he was accompanying his 2 uncles, i.e, the accused persons. At about 11:30 P.M, the two accused came out without the victim. PW-3 enquired about of the victim, accused fumbled and quickly went away from the scene. The police reached the scene at about 11:00 A.M, recovered a handkerchief-cum-towel (multicoloured with blood stains) from the scene on 7.7.2001 prepared a memo (Exbt. Ka-7), duly authenticated. The police on 10.7.2001 at 8:15 P.M, at the pointing out of accused Satya Prakash recovered a hung undergarment from his house, which he had allegedly worn while performing unnatural sex with the victim, a memo (Exbt. Ka-6), duly authenticated came to be prepared. The police on the same date, at about 9:10 P.M, and at the pointing out of accused Badan Singh also recovered a hung undergarment which he had allegedly worn at the time of the overt act, which had already been washed, a memo (Exbt. Ka-7) came to be duly authenticated and executed. 3. Ka-6), duly authenticated came to be prepared. The police on the same date, at about 9:10 P.M, and at the pointing out of accused Badan Singh also recovered a hung undergarment which he had allegedly worn at the time of the overt act, which had already been washed, a memo (Exbt. Ka-7) came to be duly authenticated and executed. 3. During investigation, the undergarments of the accused and the victim were sent for forensic analysis. The forensic report (Exbt. Ka-16) indicates that the undergarment recovered from the body of the victim had blood stains and that of the accused, apart from presence of human blood also reported semen. 4. The Trial Court held that PW-3 is the last seen witness, all links in the chain of incriminating circumstances are established including the incriminating recoveries of the undergarments both of the victim and the accused including the autopsy indicating that prior to the death of the victim, accused had sexually assaulted the victim, convicted/sentenced the accused-appellants as above. 5. We have heard Shri Vimlendu Tripathi, learned Amicus and Sri A.N. Mulla, the learned A.G.A, for State. 6. Learned Amicus raised the following contentions: - (i) The FIR came to be lodged at 9:15 A.M, and the inquest also commenced at the same time, whereas according to the I.O, he reached the scene only at 11:00 A.M, is a major contradiction, and suggesting that FIR is ante-timed. (ii) PW-3, last seen is wholly unreliable. (iii) Alleged recoveries from the house of accused are manipulated. (iv) Non-disclosure of the names of the accused in the FIR even after disclosure by PW-1 to her husband (PW-2) that she had seen the victim along with the accused on the fateful night at about 8:30 P.M, seriously dents the prosecution case. (v) PW-10, the I.O, disclosing that by the time, he recorded the statements of the witnesses including PW-3, the name of the accused person had not been alleged when the FIR had been lodged at 9:15 A.M, also casts a doubt on the veracity of prosecution story. (vi) The case is of circumstantial evidence, where all links in the chain of circumstances are not established. 7. (vi) The case is of circumstantial evidence, where all links in the chain of circumstances are not established. 7. Learned A.G.A, opposed the submissions on the premise that PW-3, a last seen, is wholly reliable, time interval between the last seen and the reported time of death as indicated by PW-6, the doctor, is too narrow, so as to rule out involvement of any other person except the accused-appellants in committing unnatural sex with the victim and thereafter suffocating him to death, not a case of false implication, contradiction between the timing of the FIR and the inquest does not render the FIR ante-timed, appeal is liable to be dismissed. 8. The Apex Court in a recent decision i.e, Criminal Appeal No.1193 of 2011 Chandru @ Chandrasekaran vs. State Represented by Deputy Superintendent of Police CB CID and another decided on 12.2.2019 summarised the law on circumstantial evidence as under: “The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh AIR 1952 SC 343 , wherein this Court held as follows: “10……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.” 10. This law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) Butterworths, Seventh Edition, Pp 296-329, in which he has laid down the following Rules specially to be observed in the case of circumstantial evidence: “RULE 1. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) Butterworths, Seventh Edition, Pp 296-329, in which he has laid down the following Rules specially to be observed in the case of circumstantial evidence: “RULE 1. – The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum probandum............ RULE 2. – The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability................ RULE 3. – In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits......... RULE 4. – In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.................. RULE 5. – If there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 11. The law can be summarised in the following terms: 1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt; 2. The circumstances should unerringly point towards the guilt of the accused; 3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused; 4. That there should be no probability of the crime having been committed by a person other than the accused. 12. It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the courts below. 13. That there should be no probability of the crime having been committed by a person other than the accused. 12. It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the courts below. 13. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion.” To secure the conviction in the present case, prosecution has to establish the following links: (i) Victim leaves the house around 8:00 P.M for the shop of Bittu, where he was working, (ii) PW-1 (mother of the victim) sees the victim along with the accused around 8:30 P.M, while she was returning from the market, (iii) PW-3, a rickshaw puller saw the accused persons along with the victim entering T.B. Ward on the fateful night around 11 P.M, but at about 11:30 P.M, the accused came out without the victim, (iv) Unnatural sex was committed with the victim, (v) Death of the victim while committing unnatural sex, (vi) Recovery of the body of the victim at point 'X' (T.B. Ground) in site-plan at about 7 A.M, next morning as reported by a milk vendor (not examined). 9. PW-1 is the mother of the victim. She stated that on the day of occurrence, Teetu (victim) after having his meal left for the tea-shop of Bittu, at about 8 P.M, where he was working. She last saw the victim along with the accused persons at around 8:30 P.M, while she was returning after purchase of gorcery. Upon her query, the victim replied that he is on his way to close the shop of Bittu. Accused persons are known to her husband as they were working with him and were on visiting terms. She upon reaching the T.B. Ground saw that her son received injury marks on cheeks and chest suggesting that victim was subjected to sexual assault. She is candid enough to admit that she did not disclose a fact that she saw victim along with the accused at 8:30 P.M to her husband, when came back at 10:00 P.M, on the day of occurrence as she did not consider them as suspects as they were of the same locality. She is candid enough to admit that she did not disclose a fact that she saw victim along with the accused at 8:30 P.M to her husband, when came back at 10:00 P.M, on the day of occurrence as she did not consider them as suspects as they were of the same locality. She confessed to her husband about the accused as suspect only next morning i.e, 7.7.2001, when the victim was untraceable, coupled with the fact that at times her son used to come back late at night. PW-1 met PW3/ Raees at 11:00 A.M, where PW-3 disclosed to PW-1 that he last saw the vicitm along with the accused at 11:00 P.M, previous night, while they were entering the T.B, ward, from where the dead body of her son was recovered after acquiring information as to the death of her son at 8:00 A.M. PW-1 could not be shattered in cross-examination. She is wholly reliable. 10. PW-2 is the father of the victim. He was stating that he learnt about the recovery of the dead body of a child at 7:00 in the next morning from a milk vendor, a day after his son went missing, while he was sitting at the shop of Swatantra Kumar (PW-4). He proceeded to the T.B. Ground around 7:45-8:00 A.M, and after seeing the dead body identified the body as of his son (victim), went to the P.S, along with Swatantra Kumar (PW-4) to lodge a report in a rickshaw at around 9:00 in the morning. PW-4 scribed a report (Exbt. Ka-1) at the P.S, and his statement was also recorded at the P.S. He is also witness to the inquest. PW-3, a rickshaw puller is the alleged last seen waiting at the entry of T.B. Hospital for passenger, saw the victim along with the accused around 11:00 P.M, while they were entering the T.B. Ward to see a patient. The victim disclosed to PW-7 that he was going with uncles / accused and would return shortly. At around 11:30 P.M, the two accused came out, without the victim, but on enquiry made by PW-3 about victim, the accused became nervous and fled from the scene. The victim disclosed to PW-7 that he was going with uncles / accused and would return shortly. At around 11:30 P.M, the two accused came out, without the victim, but on enquiry made by PW-3 about victim, the accused became nervous and fled from the scene. PW-3 lives in the vicinity of the informant, in the same locality, where the accused also lived and returned home around 11:30 P.M. He learnt about the recovery of the body of the victim only in the morning, when he went to the T.B. Hospital. The T.B. Hospital has multiple entry and exit points. He categorically denied the suggestion that he is deposing falsely as the brother of accused refused to give Rs.10,000/-, 4 days prior to the deposition. PW-3 on above testimony is a last seen witness, who saw the victim along with the two co-accused persons at 11:00 P.M. 11. We find that there is some contradiction as regards the time of inquest, which according to PW-11 commenced at 9:15 A.M, which also happens the time of lodging of the FIR. PW-11 is the author of the inquest (Exbt Ka-), which came to be executed at the T.B, ground, where the body was recovered, authenticated by PW-8 and others. The inquest indicated the following injuries on the body of the victim – ^^fLFkrukek & e`rd nhiw dk 'ko Vh0oh0 xzkmUM esa lM+d ls iwoZ rjQ fdukjs ij fpr gkyr es iM+k gS iSj mRrj flj nf{k.k dks gS nksuks gkFk cjkcj es gS eqWg cUn rFkk vkW[ks v/k[kqyh gSA pksV & 1- ck, xky ij pksV fu'kku nkWrks ds dkVs dh ekywe gksrh gSA 2- ck, rjQ lhuk ij pksV fu'kku 3- ihB ij fu'kku [kqjlj 4- vksaB ij fu'kku nkfguh rjQ 5- VV~Vh ds jkLrs ij [kwu yxk gSA^^ The above body conditions were also disclosed by PW-1. It is no longer res integra that the purpose of inquest is only to ascertain the cause of death nothing less nothing more. Reliance may be placed on a decision of the Apex Court in Tehseen Poonawalla Vs. Union of India & others (2018) 6 SCC 72 . Merely because timing of the inquest is not compatible with that of the FIR, it cannot be said that FIR is ante-timed, when the same has been proved through the testimony of PW-2, 10 and 12. Union of India & others (2018) 6 SCC 72 . Merely because timing of the inquest is not compatible with that of the FIR, it cannot be said that FIR is ante-timed, when the same has been proved through the testimony of PW-2, 10 and 12. Thus the logical inference is that the timing of inquest is an outcome of an investigational default, which would not enure to the benefit of the accused-appellants. 12. PW-6 is the doctor, who on 7.7.2001 at about 2:15 P.M, performed the autopsy (Exbt. Ka-3) of the deceased with following ante-mortem injuries (internal and external): - **1- ck;s xky esa ukd ls nks lseh- nwj 4 lseh- xq.kk 3 lseh- ,fj;k esa xksykdkj [kqjlV ds fu'kku Fks tks fd chp esa ckf/kr FksA xksys ds Åij o uhps pkj&pkj fu'kku FksA ;g nkar ls dkVus ds FksA 2- QVk gqvk ?kko eqWg ds nkfgus dksus esa 2 lseh- xq.kk 0-1 lseh- Åijh gksB esa o blh vkdkj dk fupys gksB esa ekal is'kh dh xgjkbZ rd chp esa ckf/kr FksA 3- cka;h rjQ dh fufiy ds pkjksa rjQ 4 lseh- xq.kk 3 lseh- ,fj;k esa pkj Åij vkSj pkj uhps chp&chp esa okf/kr xksykdkj fu'kku FksA ;g [kjksap ds Fks o nkar ls dkVus }kjk vk;s FksA 4- QVk ?kko ey }kj ds 7 vks Dyksd iksth'ku esa tks fd ckgj dh rjQ 1 lseh- pkSMk vkSj vUnj dh rjQ iryk gksrk gqvk nks lsUVhehVj rd E;wdy o ey}kj dk fLQaUDpj dh xgjkbZ rd FkkA ey }kj Yyh] QsQMs dUtSLVSM FksA ân; nkfguh rjQ Hkjk gqvk o ck;s rjQ [kkyh FkkA otu pkj vkSal Fkk eqWg esa lQsn >kx o [kwu ekStwn Fkk nkar 14@12 FksA vkek'k; esa v/kipk [kkuk ikap vkSUl ekStwn FkkA ;d`r dUtSLVSM FkkA fiRrk'k; [kkyh FkkA Iyhgk dUtSLVSM Fkh vkSj mldk otu pkj vkSUl FkkA nksuksa xqnsZ dUtSLVSM Fks vkSj mudk otu ikap vkSUl FkkA 13. The doctor was opining that the death of the victim is possible on the intervening night of 6.7.2001 around 2:00 A.M. He further indicated that injuries no.1 and 3 are possible on account of biting involving human teeth and injury no.4 is attributable to unnatural sex. The doctor was opining that the death of the victim is possible on the intervening night of 6.7.2001 around 2:00 A.M. He further indicated that injuries no.1 and 3 are possible on account of biting involving human teeth and injury no.4 is attributable to unnatural sex. During cross-examination, he was not willing to extend the time of death more than 30 minutes to one hour on either side of 2:00 A.M, but was emphatic that the permissible margin as regards the time of death of 6 hours will not extend beyond 2:00 A.M, probabilising a closure proximity with the time of death in between 11:00 P.M, to 2:00 A.M. 14. To recapitulate, PW-3 is a last seen at 11:30 P.M, i.e, the death must have taken place in a span of 3 hours, i.e, from 11 P.M, to 2 A.M. Time gap is so compressed that the probability of any outsider committing the overt act is ruled out. 15. Exbt. Ka-6 is the recovery memo of undergarments of accused Satya Prakash recovered from his house at his pointing out on 10.7.2001. Exbt. Ka-7 is the recovery memo of the undergarment of accused Badan Singh recovered at his pointing out from his house on 10.7.2001 at 9-10 P.M. The forensic report (Exbt. Ka-16) indicates that the undergarment recovered from the body of the victim had blood stains and that of the accused, apart from presence of human blood also reported presence of semen. This report was confronted to the accused under Section 313 CrPC, but they simply denied without any explanation. We are of the view that once the links in the chain of incriminating circumstances, coupled with the recovery of the body of victim that prior to death, he was subjected to sexual assault and the time difference between the last seen and reported death is too little (3 hours only), the recovery of undergarments of the accused, which indicates presence of blood and semen of which no explanation was forwarded by the accused but for mere denial, is an additional link, which rules out completely the hypothesis of guilt of any other person than the appellants. 16. The body of the victim came to be recovered at around 7:00 in the next morning as was informed by a milk vendor to PW-2. PW-2 lodged a report at around 9:15 A.M, against unknown persons. 16. The body of the victim came to be recovered at around 7:00 in the next morning as was informed by a milk vendor to PW-2. PW-2 lodged a report at around 9:15 A.M, against unknown persons. Once the news of recovery of the dead body of the victim became public, PW-3 disclosed that he had loast seen the victim in the presence of the above accused at 11:00 P.M, when all 3 of them were entering the T.B. Hospital, but the victim was not seen with the accused, when they came out at 11:30 P.M. Thus, the prosecution has explained, the absence of nomination of the accused by name in the FIR. Further the I.O (PW-10) was stating that after registration of the FIR on 7.7.2001 at 9:15 A.M, he reached the scene at about 11 A.M, and obtained the statements of witnesses. The I.O. was right in a way that prior to recording the statements of the witnesses, he was not aware of the names of accused in present case. 17. PW-5 is one of the witnesses of extra-judicial confession, who turned hostile in the examination-in-chief only. PW-7 is the witness of extra-judicial confession allegedly made at the P.S. PW-5 denied to have given any statement implicating the accused. No animosity of PW-5 is alleged with the police. 18. No doubt, extra-judicial confession is a weak evidence, which on the facts of the present case also stands corroborated with other incriminating links as indicated above. 19. The learned Amicus relied upon a decision of the Apex Court in Anjan Kumar Sarma and others Vs. State of Assam, (2017) 14 SCC 359 to contend that merely on the circumstances of last seen, a conviction cannot be based. 20. We have examined the above decision and find that the time interval between the last seen and the time of alleged death was around 15 hours. Paragraph-9 of the said judgment is quoted hereunder:- “9. The trial court considered each of the circumstances in a detailed manner. Regarding the last-seen theory propounded by the prosecution, the trial court held that the prosecution proved through the evidence of PW-4 and PW-5 that Rekha Dutta was seen in the company of the accused till 9:00 P.M, on 27.12.1992. There is no conclusive proof that Rekha Dutta stayed at the bungalow overnight. Regarding the last-seen theory propounded by the prosecution, the trial court held that the prosecution proved through the evidence of PW-4 and PW-5 that Rekha Dutta was seen in the company of the accused till 9:00 P.M, on 27.12.1992. There is no conclusive proof that Rekha Dutta stayed at the bungalow overnight. Considering the medical evidence on record, the trial court held that the death should have been after 12:00 noon on 28.12.1992 and there was no evidence that the deceased was seen with the accused persons around that time or thereafter. According to the trial court the mere fact that the accused were with the deceased till 9:00 p.m, on 27.12.1992 will not by itself lead to an irresistible inference that they committed the crime.” 21. We have no doubt in the aforesaid legal position, but the same would have no application on the facts and circumstances of the present case, where the time difference is maximum 3 hours and the other incriminating links in the chain of circumstances are duly established. 22. Thus, in view of above, we find that the prosecution has established the links indicated above including additional links, i.e, recovery of the undergarments of the accused, their extra-judicial confession and there is nothing on record, which indicates that the appellants have been falsely implicated, the said links are completing the chain of circumstances, which pointedly suggest that the appellants due to their sexual desire committed unnatural sex with the victim (a 12 year boy) and when the victim shouted, they pressed his mouth, thus, due to pain and suffocation, the victim died. 23. The appeal is bereft of merit and is dismissed. Appellants are on bail. Their bail bonds stand cancelled. They shall be taken into custody forthwith to serve remainder sentence. 24. Let a copy of this judgment along with record be sent to the learned Sessions Judge, concerned for ensuring compliance under the intimation to this Court. 25. The court places on record the valuable assistance rendered by Sri Vimlendu Tripathi, the Learned Amicus. The Registrar General is directed to ensure a payment of Rs.15,000/-to the learned Amicus, for services rendered.