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Gulzar vs State Of U.P. on 21 February, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on: 20.12.2018

Delivered on: 21.02.2019

Court No. – 34

Case :- CRIMINAL APPEAL No. – 3212 of 2004

Appellant :- Gulzar

Respondent :- State Of U.P.

Counsel for Appellant :- Veer Singh,Bijai Prakash Tiwari (A.C.),Mohd. Afzal,S. Pratap Singh,Shyam Murari Upadhaya

Counsel for Respondent :- Govt. Advocate

Hon’ble Sudhir Agarwal,J.

Hon’ble Ram Krishna Gautam,J.

(Delivered by Hon’ble Ram Krishna Gautam, J.)

1. Heard Mr. Bijai Prakash Tiwari, learned Amicus Curiae, appearing for appellant and Sri Rishi Chaddha, learned A.G.A. for the State.

2. This Appeal under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter referred to as ‘Cr.P.C.), has been filed by convict-appellant Gulzar, S/o Intizar, against judgment and order dated 28.05.2004, passed by Court No. 6 of Additional District and Sessions Judge, Bijnor in Sessions Trial No. 8 of 2003, State of U.P. Vs. Gulzar, wherein judgment of conviction with sentence of life imprisonment and fine of Rs.5,000/- under Section 302 I.P.C. and ten years’ rigorous imprisonment with fine of Rs.2,000/- under Section 376 I.P.C. has been passed, with this contention that judgment and order was against weight of evidence on record, sentence is too severe and excessive in the eyes of law. There was no evidence of committing murder and rape with Gulistan, rather trial was based on evidence of last seen, which was untrustworthy, but impugned judgment has been passed, relying the same.

3. From the very perusal of record, prosecution case, as reveals, is that Chick F.I.R. (Ext. Ka-5) was got registered as Case Crime No. 1733 of 2002, under Sections 376, 302 I.P.C. at Police Station Kotwali City, District Bijnor on 14.10.2002 at 00.05 A.M. upon written report, scribed by Shah Alam, S/o Mohd. Yameen, R/o Eidgah Road, Bijnor and singed by Mahfooj, S/o Maqsood, R/o Mohalla Kajipara, Police Station Kotwali City, Bijnor, presented by Mahfooj, against Gulzar, R/o Mohalla Kajipara, Police Station Kotwali City, Bijnor, with this contention that informant’s niece Gulistan, aged about seven years, who was residing with her grand-mother at Mohalla Bhataan, had gone on 13.10.2002 at 11 A.M. to her parents’ house at Mohalla Fareedpur Kazi, Eidgah Road, Bijnor, but she did not turn back till 2 P.M. She was being searched and at about 8 P.M. Wahid, S/o Subrati, apprised that he had seen Gulistan, going with Gulzar, towards sugarcane field of Ram Singh, situated near garden of Shamim. Informant along with Shah Alam, Mahboob Alam @ Chhotey and Chhotey @ Wasir and many others went at sugarcane field of Ram Singh, situated near garden of Shamim, where the dead body of Gulistan, having a leash tying over her neck and her saalwar being open, was recovered from “Bhuse ka Bugga”. Gulistan was enticed and taken in above sugarcane field by Gulzar, where she was subjected to rape and murdered by tying leash over her neck. The dead body was lying at above field and this report was submitted. The criminal machinery was put in motion. Sub-Inspector K.L. Sharma, along with his police team, rushed towards the spot, from where dead body was recovered under above said position. The leash was got cut and taken into custody. Recovery memo (Ext. Ka-2) under handwriting and signature of this Sub-Inspector as well as S.H.O. and two witnesses was got prepared. The sleeper, recovered from nearby place, was taken in custody and recovery memo (Ext. Ka-3) was accordingly prepared. Inquest proceeding by way of preparation of inquest report (Ext. Ka-8) and other requisite papers i.e. letter R.I. (Ext. Ka-9), letter C.M.O. (Ext. Ka-10), letter Superintendent (Ext. Ka-11) and Challan Dead Body (Ext. Ka-12) were prepared. Autopsy examination of dead body was got conducted. Autopsy Examination Report (Ext. Ka-7) along with Inquest Report (Ext. Ka-8) established commission of rape with murder of deceased, which resulted filing of Charge Sheet (Ext. Ka-17) against Gulzar, S/o Intizar, for offence punishable under Section 376, 302 I.P.C. The Magistrate took cognizance over this Charge Sheet on 09.12.2002. As offence of murder was exclusively triable by court of Sessions, hence file was committed to court of Sessions Judge, Bijnor, which was made over to Court of First Additional Sessions Judge, Bijnor, where after hearing learned public prosecutor and learned counsel for defence, charge for offence of murder punishable under Section 302 read with offence of rape punishable under Section 376 I.P.C. was framed on 12.05.2003, which reads as under:-

eSa] osniky] izFke vij l U;k;k/kh’k] fctukSj vki xqytkj ij fuEu vkjksi yxkrk gWw %

izFker% ;g fd fnukad % 13102002 dks djhc 11-00 cts fnu jke flag ds xUus ds [ksr fLFkr taxy fudV vkoklfodkl dkyksuh] fctukSj vUrxZr Fkkuk%dksrokyh ‘kgj] fctukSj] esa vkius dq0 xqfyLrk vk;q%7 o”kZ dh lk’k; e`R;q dkfjr dj] gR;k dh vkSj bl izdkj vkius Hkk0na0la0 dh /kkjk%302 ds vUrxZr n.Muh; vijk/k fd;k ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks gSA

f}rh;r % ;g fd mijksDr fnukad] le; ,oa LFkku ij vkius dqq0 xqfyLrk vk;q lkr o”kZ ds lkFk cykRdkj fd;k vkSj ,rn~}kjk vkius Hkk0na0la0 dh /kkjk% 376 ds vUrxZr n.Muh; vijk/k fd;k] ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks gSA

vr% ,rn~}kjk] eSa funsZ’k nsrk gWw fd vkidk bl U;k;ky; }kjk fopkj.k fd;k tk;sA

[Firstly, that on 13.10.2002 at about 11-00 A.M. in the sugarcane field of Ram Singh, situate in bush, near Awas Vikas Colony, Bijnor within the area of Police Station Kotwali City, Bijnor, you have committed murder of Km. Gulistan, aged about 7 years, hence committed offence punishable under Section 302 I.P.C., which is within cognizance of above Court.

Secondly, that on above date, time and place you have committed rape with Km. Gulistan, aged about seven years, hence committed offence punishable under Section 376 I.P.C., which is within cognizance of above Court.]

[Translated by Court itself]

4. Charge was read over to convict-appellant, who pleaded not guilty and claimed for trial.

5. Prosecution examined PW-1 informant Mahfooj, PW-2 Sub Inspector K.L. Sharma, PW-3 Balwan Singh, PW-4 Khaceru Singh, CW-1 Wahid, CW-2 Dr. A.S. Jain and CW-3 Dr. S.P. Aahuja.

6. With a view to have explanation, if any, and version of accused person over incriminating material presented and evidence given by prosecution, statement of accused person was recorded under Section 313 Cr.P.C. in which bald reply of “Yeh Galat Hai” has been given towards accusation, but unawareness regarding registration of case crime number, inquest proceeding, autopsy examination has been said. The charge sheet has been assailed on the ground that the same is without any basis and with false implication, owing to enmity, however, no evidence in defence has been adduced from the side of accused-appellant. Learned Sessions Judge, after hearing learned Government Advocate and learned counsel for defence, passed impugned judgment of conviction and sentence written as above, against which this appeal.

7. Learned counsel for appellant argued that this was a case of no evidence, in which there was no eyewitness account and last seen evidence was untrustworthy; trial Judge failed to appreciate facts and law placed before it and convict-appellant was falsely implicated owing to enmity.

8. Learned A.G.A. argued that trial court has rightly appreciated facts and law placed before it. Oral testimony was fully supported with medical testimony. Victim, being a child, was raped and murdered in this occurrence. Instantly convict-appellant was apprehended and medically examined, he was having injuries over his person, which was corresponding to injury of victim and no explanation of same could be given at any stage.

9. Hon’ble Apex Court in Anil Rishi Vs. Gurbaksh Singh; AIR 2006 SC 1971, while interpreting onus to prove under Indian Evidence Act has propounded that onus to prove a fact is on the person, who asserts it under Section 102. Initially onus is always on plaintiff to prove his case and if he discharges, onus shifts to defendants. Apex Court in Addagada Raghavamma Vs. Addagada Chenchamma; AIR 1964 SC 136 has propounded that burden of proof and onus of proof are two different things. Burden of proof lies upon a person, who has to prove that fact, which never shifts. Onus to proof shifts. Such shifting of onus is a continuous process in the evaluation of evidence. In Narbada Prasad vs. Chaganlal Ors. AIR 1969 SC 393 has propounded that in an appeal the burden is on the appellant to prove how the judgment under appeal is wrong? Apex Court in State of Punjab Vs. Bhajan Singh others; AIR 1975 Supreme Court 258 and at many times earlier and subsequent too, has propounded that suspicion, howsoever strong, cannot take place of proof as propounded in Shankarlal Gyarasilal Dixit Vs. State of Maharashtra; (1981) 2 Supreme Court Cases 35 that falsity of defence does not establish prosecution case. In Kali Ram Vs. State of Himachal Pradesh; AIR 1973 SC 2773 law propounded is that in a criminal trial the onus is upon prosecution to prove different ingredients of offence and unless it discharges that onus, it cannot succeed. In Pratap Vs. State of U.P.; AIR 1976 SC 966 prosecution is to prove his case beyond all reasonable doubt, whereas accused is to prove only till establishing preponderance of probabilities. While appreciating evidence in criminal administration of justice the principle propounded for it in Veer Singh Ors. Vs. State of U.P.; 2014 (84) ACC 681, legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity, or plurality of witnesses. It is not the number of witnesses, but quality of their evidence, which is important. As there is no requirement under the law of evidence that particular number of witness is to be examined to prove / disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity, which determines. The adequacy of evidence as has been propounded under Section 134 of Evidence Act. As a general rule, Court can and may act on the testimony of a single witness, provided he is wholly reliable. Testimony of witness, cogent, credible and trustworthy having ring of truth, deserves its acceptance. Under Cr.P.C. legislation has given Section 313 and Apex Court in State of Maharashtra Vs. Sukhdev Singh and another, Death Reference No. 1 of 1989 with Criminal Appeal No. 17 of 1990, decided on 15.07.1992 propounds “Section 313 of the Code is a statutory provision which embodies the fundamental principle of fairness based on maxim of audi alteram partem. It is trite law that attention of accused is specifically invited to inculpatory piece of evidence of circumstances laid on record with a view to give him an opportunity to offer explanation, if he chooses to do so. The section imposes a heavy duty on the Court to take great care to insure that the incriminating circumstances rather put to the accused and his response solicited. The word “shall question” clearly brings out the mandatory character of clause and caste an imperative duty on Court and confer a corresponding right to accused to offer an explanation for such incriminating material appearing against him which has been surfaced on record.

10. PW-1 Mahfooj, in his examination-in-chief on oath, has said that his niece Gulistan, aged about seven years, used to reside with her grand-mother at Mohalla Bhataan, whereas her parents were residing at Eidgah Road, Kazi Fareedpur; eight and half months back on 13.10.2002 Gulistan at about 11 A.M. had gone from her grand-mother’s house to her parents’ house, situated at Eidgah Road, Kazi Fareedpur, but she did not turn up till 2-2.30 P.M., she was being searched, but with no clue. At about 8 P.M. Wahid met informant and apprised that he has seen Gulistan in company of Gulzar going towards field of Ram Singh. Upon this information, informant along with Shah Alam, Mahboob Alam and Chhotey went at field of Ram Singh, situated near the garden of Shamim. Dead body of Gulistan was recovered from straw-store (Bhuse ka Bugga) thereat. Her salwaar was open and throat was tied by leash of her salwaar. She was subjected to rape, thereafter, murdered by strangulation by above leash. He got report scribed under his dictation by Shah Alam and put his signature over it and submitted the same at Police Station concerned, which is on record under his signature, marked as Ext. Ka-1, meaning thereby this was not eyewitness of occurrence of rape or murder except a witness of lodging FIR (Ext. Ka-1) and recovery of dead body of Gulistan under above said position. This recovery was on the basis of last seen evidence of Wahid, from the field of Ram Singh situated near garden of Shamim. This registration of case crime number, upon Ext. Ka-1, is with no contradiction in his examination-in-cross. Rather same is corroborated by testimony of PW-4 Khaceru Singh that while being posted at Police Station Kotwali City, Bijnor as Head Moharrir on 14.10.2002 he had registered above case crime number and its Chick FIR No. 449 of 2002 under his handwriting and signature which is Ext. Ka-5. This registration was entered in GD at Entry No. 2 at 00.05 A.M. on the same day and carbon copy is Ext. Ka-6. This registration was on the basis of written report brought and submitted by informant, hence written report (Ext. Ka-1), recovery memo of cloth (Ext. Ka-4) and F.I.R. (Ext. Ka-5) reveals lodging of report of rape and murder of victim Gulistan, who was seen lastly in company of accused Gulzar, in close proximity of time, near the field of Ram Singh, from where this dead body was recovered under above position. A suggestive question for giving false testimony has been put by learned counsel for defence to PW-1 that his marriage with Najra could not be solemnized and owing to it there occurred some enmity for implicating Gulzar, S/o Najra, which has been answered in negative and this suggestion itself seems to be not proper and in accordance with usual behaviour of a man, even of ordinary prudence. Dead body was recovered in pursuance of appraisal made by Wahid, regarding last seen of victim with accused Gulzar, near above place of recovery, in close proximity of time, and before it there was no clue or trace of victim to informant and other family members. Though, there is a bid difference regarding timing of registration of case crime number which has been vehemently argued by learned counsel for defence that this witness has apprised recovery at about 01.00 P.M. and thereafter registration of case crime number, whereas this case crime number was got lodged at 00.05 hours. This perception and telling about time by a person, who was under great agony and anxiety because of this rape and murder of a tiny child, is of no material significance, rather it is a natural variation to be ignored. Because Hon’ble Apex Court in Lila Ram Vs. State of Haryana 2000 SCC (Cri.) 222 has propounded that minor embellishment and trivial discrepancies are usual in a witness’s statement. In spite of hair splitting at any point, totality of situation ought to have been reviewed.

11. PW-2 K.L. Sharma, by his testimony, has said that while being posted as Sub Inspector at Police Station Kotwali City, District Bijnor on 14.10.2002, he went at the place of occurrence, where dead body of deceased Gulistan, aged about seven years, was lying; she was murdered by tying her neck by leash of salwaar, which was got cut and taken in custody by preparation of recovery memo for same under witness ship of Mohd. Farooq and Sardaar, of which recovery memo under his handwriting and signature is Ext. Ka-2. A pair of sleeper, lying thereat, was taken in possession and recovery memo Ext. Ka-3 was prepared under his handwriting and signature and these things were present in Court at the time of recording of this testimony, which were proved as material Ext. 1 and material Ext. 2 respectively.

12. CW-1 Wahid, upon whose last seen evidence this implication was there, has resiled from his statement, recorded under Section 161 Cr.P.C., by stating that neither he has last seen Gulistan in company of Gulzar nor he had informed same to informant nor I.O. has taken his statement. This witness has become hostile.

13. Genuineness of autopsy examination report has been admitted by learned counsel for defence, thereby formal proving of same has been dispensed with and the same is Ext. Ka-7. Formal proof of inquest report has also been admitted and dispensed with by admission of genuineness of same. The documents, related with inquest proceeding has also been admitted by learned counsel for defence and the same were exhibited as inquest report (Ext. Ka-8), letter R.I. (Ext. Ka-9), letter C.M.O. (Ext. Ka-10), letter Superintendent (Ext. Ka-11), Challan Dead Body (Ext. Ka-12), Photo Dead Body (Ext. Ka-13), Carbon Copy G.D. (Ext. Ka-14) and Carbon Copy G.D. (Ext. Ka-15). Formal proof of Charge Sheet by admission of genuineness of same has been dispensed with by learned counsel for defence, hence same was exhibited as Ext. Ka-17. As per principle of law, fact admitted need not to be proved and admission is best piece of evidence, unless successfully withdrawn or proved erroneous (Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and others; AIR 1960 SC 100). Hence in present case genuineness of those prosecution papers were admitted by learned counsel for defence, hence for formally proving the same witnesses were not examined by prosecution.

14. From the very perusal of those proved documents, it is established that there were following ante mortem injuries, written in postmortem examination report (Ext. Ka-7) of deceased-victim Gulistan, found by Dr. A.S. Rathore:-

“1. Legature mark 2cm x 1cm over front and both sides of neck, discontinued over back of neck, at level of thyroid cartilage. Margins are red and area around the ligature mark, is abraded and contused adjoining 2.5cm to 3cm. at places over front of neck all over; on cutting the under surface of ligature mark and adjoining part of neck, tissue is echymosed with petechial hemorrhage.

2. Multiple tiny abrasions all over the right side forearm and hand.

3. Abrasion with contusion in area 10cm x 6cm over right side upper part of thigh and pelvis, front and lateral aspect.

4. Abrasion 1cm x 0.5cm over left leg outer part, 6cm above ankle.

5. Abrasion 1cm x 1cm over perineal region, just backward and below the introits of vagina.

6. Laceration all over introits and vaginal canal; vagina is filled with clotted and liquid blood; vaginal smear taken and 2 slides prepared for pathological examination, sealed and handed over to the police constables.”

15. This death was opined to be of one day old. The cause of death was asphyxia as a result of strangulation, due to ante mortem injuries over neck. The cloths found on the person of deceased were taken in custody, at the time of autopsy examination, sealed and sent for forensic science examination. The Forensic Science Laboratory, vide its report (Ext. Ka-18), reported that on large part of article 1 (Pant) and article nos. 4 to 7 (sleepers, salwaar, kurta and eartups) blood stains were found; there was presence of spermatozoa over salwaar worn by deceased with stain of semen over it. This was in correspondence with the presence of spermatozoa and semen stain over cloth of accused taken in custody and sent for forensic science examination. Hence, this was not a case of natural death or accidental death of deceased-victim of seven years age, rather it was a culpable homicide amounting to murder coupled with rape.

16. PW-3 Balwan Singh is a crucial witness, who has proved that while being posted as Head Moharrir at Police Station Kotwali City at Bijnor on 14.10.2002 he made conversation with accused Gulzar of Case Crime No. 1733 of 2002, under Section 376, 302 I.P.C., in which he confessed the commission of offence of rape with Gulistan and upon this confession, cloths worn by accused were taken in custody, of which recovery memo was prepared under handwriting of this witness and signature of S.H.O. S.S. Rathi. The same is exhibited as Ext. Ka-4 on record. The sealed bundle was got opened in Court from which a Pant and Shirt of accused, which were taken in possession as above, were obtained and this Pant is exhibited as material Ext. No. 3 and material Ext. No. 4. This exhibit is with missing of that part of cloth, which were encircled by this witness at the time of recovery. In cross-examination, no question regarding taking of cloth of accused and the same being material Ext. 3 and 4 in the Court has been asked by learned counsel for defence nor there is any question regarding alleged confession made by accused before taking cloth in possession by this witness, whereas law propounded by this Court in another Division Bench in Kunwar Vs. State of U.P. 1993 (3) AWC 1305 is that effect of non cross-examination of a witness of fact appearing in examination-in-chief, under Section 137 of Evidence Act establishes truthfulness of that uncontroverted part, which shall be accepted. Hence, this witness is wholly reliable. There is presence of spermatozoa and stain of semen over pant of accused, sent for forensic science examination, for which report Ext. Ka-18 is on record. The same is over salwaar of deceased too. Not only this CW-2 Dr. A.S. Jain, who had medically examined accused at the time of his detention, has said on oath that while being posted at District Hospital, Bijnor on 14.10.2002 at about 3.50 P.M. he had medically examined Gulzar, aged about 22 years, S/o Intizar, R/o Mohalla Kajipara, Bijnor, brought by Constable 483 Javed of Police Station Kotwali City and he was having following injuries:-

“1. Red discolouration over left inguinal region in area of 16cm x 4-5cm with irregular margins.

2. Blood clot present over left inguinal region to anterior superior iliac spine 6cm x 1.2cm. No injury under it.

3. Black clotted blood present over penis just below the glans area of 2-3cm, dotted scales present over glans.

4. Contusion on left side of hip joint 9cm. x 2cm. mid of iliac region to downward injuries No. 1 and 3 caused by blunt object, duration about one day and referred to pathologist for examination of blood over inguinal region and glans as well as sticky matter over penis.”

17. This medico legal report was prepared and proved by this witness too. If Gulzar had committed rape with any girl of seven years of age those injuries were probable and that too may be of 11 A.M. to 8 P.M. on 13.10.2002. No question in defence except that these injury may occur even if the sex is with consent. Meaning thereby presence of this injury and that too owing to having sex is admitted fact by this suggestive question. A suggestive question has been put that these injuries may occur in sodomy also, but this has been denied by this witness that sodomy will result scaling all around penis and this was not like that. Testimony of this witness has further been corroborated by testimony of CW-3 Dr. S.P. Aahuja who conducted pathological test and reported that while being posted as Senior Pathologist at District Hospital, Bijnor on 29.10.2002 he had examined slide, sent by Dr. A.S. Jain at about 1.30 P.M. There were no spermatozoa except presence of blood over slide prepared from Gulzar and this report is Ext. C-2. But a report of forensic science laboratory, tendered by learned prosecutor and admissible as evidence, without being its formal prove, is Ext. Ka-18, which established presence of spermatozoa over article 1 and 5 i.e. pant and salwaar; presence of human blood over pant, sleeper, kurta and eartups; presence of semen over article 1 and 5 i.e. pant and salwaar. The injuries found on the person of accused / convict-appellant Gulzar was neither explained nor disclosed as to how this was there. Whereas prosecution has fully established the same being in correspondence with injury of deceased. Presence of semen stains over pant of accused and salwaar of victim established sexual assault with victim

18. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link of chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all the circumstances must be consistent with the guilt of accused.

19. In Hanumant Vs. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon’ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:

“… 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…… it must be such as to show that within all human probability the act must have been done by the accused.” (emphasis added)

20. In Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or the guilt of any other person.

21. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that the chain is complete. Infirmity or lacuna in prosecution cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent:

(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.

(emphasis added)

22. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:

“… when a case rests upon circumstantial evidence such evidence must satisfy the following tests :

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and,

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

(emphasis added)

23. In C. Chenga Reddy and Others vs. State of Andhra Pradesh, 1996(10) SCC 193, Court said:

“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 added)

24. In Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, “Wills’ Circumstantial Evidence” (Chapter VI) and in para 15 of judgement said:

“(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(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,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” (emphasis added)

25. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Anr. vs. Registrar General High Court of Karnataka and Anr., 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178.

26. Under above principles of law and facts along with circumstances, fully proved by prosecution, completed the chain by adding each of its link, resulting proof beyond doubt of charge levelled against convict-appellant.

27. Regarding quantum of punishment, Section 302 I.P.C. provides general principle of punishment with life imprisonment and fine with an exception of capital punishment in cases of rarest of rare circumstances. The State has filed no appeal against the quantum of sentence and there remains no option for punishing less than life imprisonment and fine as awarded by learned Sessions Judge. Aggravating and mitigating circumstances, involved in the present case, establishes a sentence of life imprisonment with fine appropriate and in accordance with law and societal cry, hence there is no illegality or irregularity in sentence.

28. In view of the above facts and circumstances, impugned judgment and order dated 28.05.2004 deserves to be affirmed and appeal is liable to be dismissed.

29. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 28.05.2004 is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court.

30. Copy of this order along with lower Court record be sent to Court concerned forthwith.

31. A copy of this order be also sent to Appellant through concerned Jail Superintendent.

32. Before parting, we find it appropriate to place on record our commendation to learned counsel, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that he shall be paid counsel’s fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Mr. Bijai Prakash Tiwari, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order Date :- 21.02.2019

NS

 

 

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