Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 574 (ALL)

Raju v. State of U. P.

2023-02-28

AJIT SINGH, KAUSHAL JAYENDRA THAKER

body2023
JUDGMENT : 1. This appeal has been filed challenging the judgment and order dated 26.05.2000 passed by Vth Additional Sessions Judge, Muzaffarnagar, convicting the appellant in Session Trial No. 703 of 1998 (State vs. Raju), under Sections 302, 376 and 201 I.P.C. and sentencing him to imprisonment for life, imprisonment of life and 3 years R.I. respectively. All the sentences having been directed to run concurrently. 2. The prosecution story in brief is that in the morning of 05.03.1998 the niece of the complainant, aged about seven years had gone to school but did not return home till late evening. On 06.03.1998 at about 03:00 p.m. residents of the village, namely, Janeshwar, Ram Avtar and Dhir Singh told the complainant that they had seen his niece yesterday afternoon going towards the forest along with accused/Raju. Thereafter, the informant along with co-villagers, namely, Krishna Pal son of Kalu, Krishn Pal son of Pratap Singh, Sirpal son of Ram Pal, Brijpal son of Javar Singh, Gopal son of Baljeet and Kiran Pal son of Surja enquired accused about her niece then he told that he had murdered her yesterday afternoon in the field of Kiran Singh. The accused had taken them to the field of Kiran Singh where she found her niece dead. She was in naked condition and her clothes were besides her dead-body. 3. The investigation of the case was entrusted to the Sub-Inspector, Om Prakash Singh, who inspected the place of occurrence and prepared the site plan and recorded the statement of witnesses. After completion of investigation, the Investigating Officer has submitted charge-sheet against the accused/appellant under Sections 376, 302 and 201 I.P.C. on 16.03.1998 and the cognizance was taken by the Magistrate and considering that the case was triable by the Session Judge and it was committed to the court of session and the Session Court charged the accused under Sections 376, 302 and 201 I.P.C. on 23.10.1998. 4. In order to prove its case the prosecution has examined five witnesses, who are as follows: 1. Mange Ram PW-1 2. Dheer Singh PW-2 3. K.K. Agrawal PW-3 4. Dr. C.K. Parekh PW-4 5. Om Prakash PW-5 5. In support of ocular version following documents were filed: 1. F.I.R. Ex.Ka.4 2. Written Report Ex.Ka.1 3. Pathology report Ex.Ka.2 4. P.M. Report Ex.Ka.3 5. Panchayatnama Ex.Ka.7 6. Charge-Sheet Ex.Ka.13 7. Site Plan with Index Ex.Ka.6 6. Mange Ram PW-1 2. Dheer Singh PW-2 3. K.K. Agrawal PW-3 4. Dr. C.K. Parekh PW-4 5. Om Prakash PW-5 5. In support of ocular version following documents were filed: 1. F.I.R. Ex.Ka.4 2. Written Report Ex.Ka.1 3. Pathology report Ex.Ka.2 4. P.M. Report Ex.Ka.3 5. Panchayatnama Ex.Ka.7 6. Charge-Sheet Ex.Ka.13 7. Site Plan with Index Ex.Ka.6 6. The prosecution laid the evidence against the accused and the court after prosecution evidence examined the accused under Section 313 Cr.P.C. and the accused submitted that he has been falsely implicated in the present case with ulterior intention of harassing him. He pleaded not guilty and claimed to be tried. The learned Sessions Judge framed charges under Sections 376, 302 and 201 I.P.C. 7. After considering the evidence available on record the trial court convicted the accused as aforesaid. Being aggrieved by the conviction judgment and order this appeal has been filed. 8. Heard Sri Chetan Chatterjee, amicus curiae appointed for the appellant and Sri Patanjali Mishra, learned A.G.A. for the State. 9. Learned counsel for the accused/appellant submits that the appellant has been falsely implicated by the informant as there was no evidence on record which could show that the accused has murder the deceased after committing rape. No one had seen the accused either committing rape or murder. There are contradictions in the statement of witnesses and the last seen evidence given by Janeshwar, Ram Avtar and Dheer Singh against the accused does not appear to be very credible. He also submits that as per postmortem report no spermatozoa was found. The dead body of the deceased was not recovered a the instance of the accused-appellant. He lastly submits that the accused is in jail and he has served more than twenty four years in prison. It was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. Although the trial court has convicted the present accused on the basis of mere conjuncture while the appellant is absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing him. 10. Learned A.G.A. has submitted that the accused has committed murder after raping a seven years old child and there was last seen evidence against the accused. 11. The conviction of appellant is based only upon circumstantial evidence. 10. Learned A.G.A. has submitted that the accused has committed murder after raping a seven years old child and there was last seen evidence against the accused. 11. The conviction of appellant is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063 , Eradu and Others vs. State of Hyderabad, AIR 1956 SC 316 , Earabhadrappa @ Krishnappa vs. State of Karnataka, AIR 1983 SC 446 , State of U.P. vs. Sukhbasi and Others, AIR 1985 SC 1224 , Balwinder Singh @ Dalbir Singh vs. State of Punjab, AIR 1987 SC 350 and Ashok Kumar Chatterjee vs. State of M.P. AIR 1989 SC 1890 , that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt. We may also make a reference to a decision of this Court in C. Chenga Reddy and Others vs. State of A.P. (1996) 10 SCC 193 , wherein it has been observed that: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....” (Emphasis supplied) 12. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....” (Emphasis supplied) 12. Upon thorough application of the above settled law on the facts of the present case, we hold that the circumstantial evidence against the present appellant does not conclusively establish the guilt in committing the murder of the deceased. The last seen theory, the arrest of the accused, the recovery the dead body, do not conclusively complete the chain of evidence and do not establish the fact. 13. In a case where the conviction is solely based on circumstantial evidence, such inconsistencies in the testimonies of the important witnesses cannot be ignored to uphold the conviction of accused-appellant. 14. It would be seen by this Court that the facts in this case are similar to a recently decided case by the Apex Court titled Ravinder Singh @ Kaku vs. State of Punjab, 2022 (7) SCC 581 [decided on 04.05.2022] wherein the Apex Court while dealing with similar facts has held as follows: “17. In a case where the conviction is solely based on circumstantial evidence, such inconsistencies in the testimonies of the important witnesses cannot be ignored to uphold the conviction of A2, especially in light of the fact that the High Court has already erred in extrapolating the facts to infer a dubious conclusion regarding the existence of a motive that is rooted in conjectures and probabilities. 18. With respect to the extra judicial confessions, suffice it to say that the attempt of the respondent herein to rely on that is untenable since the High court has taken note of the inconsistencies in the evidence of PW-13 Goverdhan Lal and has rightly rejected his Evidence in “in toto.” We uphold the judgment of the High Court to the extent that it rejects the testimony of PW-13 and finds the theory of extra judicial confession of A2 and A3 to be unnatural.” 15. Accordingly, the appeal is allowed and the impugned order dated 26.5.2000 is set aside to the extent that it convicts accused under section 302 and 376 I.P.C. Hence, the conviction of accused is set aside. 16. Accordingly, the appeal is allowed and the impugned order dated 26.5.2000 is set aside to the extent that it convicts accused under section 302 and 376 I.P.C. Hence, the conviction of accused is set aside. 16. We direct that a copy of this order be communicated to the relevant jail authorities and the appellant Raju be immediately set at liberty, unless his detention is required in any other case.