No Acts & Articles mentioned in this case
Court No. - 46 /Reserved
Case :- CAPITAL CASES No. - 2899 of 2011
Appellant :- Nem Singh @ Mula
Respondent :- State Of U.P.
Counsel for Appellant :- Shyam Kishore Yadav,Apul Misra
Counsel for Respondent :- Govt. Advocate
Along with
Criminal Reference No. 10 of 2011
Connected with
Case :- GOVERNMENT APPEAL No. - 4681 of 2011
Petitioner :- State Of U.P.
Respondent :- Avadhesh
Petitioner Counsel :- Desh Ratan Chaudhary/GA
Hon'ble Amar Saran,J.
Hon'ble Bachchoo Lal,J.
(Delivered by Hon'ble Amar Saran, J)
A judgement dated 9.5.2011, passed by the Sessions
Judge, Mainpuri convicting the appellant to death sentence
under section 302 I.P.C and rigorous imprisonment for 12
years under section 376(2) (f) I.P.C and a fine of Rs.
25,000/, and in default of payment of fine, one year
additional sentence, has been challenged by means of this
capital appeal, preferred by the appellant. A reference under
section 366 Cr.P.C for confirming the death sentence has
also been sent by the trial court. The coaccused Awadhesh
Neutral Citation No. - 2013:AHC:93156-DB
was acquitted by the same judgement, under sections 376
and 302/34 I.P.C, against which acquittal a government
appeal has also been preferred by the State. But the said
government appeal has not yet been admitted nor has any
notice been issued to the accusedrespondent Awadhesh.
The prosecution case was that Sangeeta aged about 10
years and her younger sister Vineeta aged about 8 years
were grazing their goats and bullocks in their field on
15.4.2002. As their goats had strayed into the field of
appellant Nem Singh, the appellant and the coaccused
Awadhesh strangulated her with an Angauchha. When
Sangeeta did not return in the night, then her father Ram
Autar Singh made an extensive search for her. In the
morning Vineeta fearfully disclosed that the appellant Nem
Singh and the coaccused Awadhesh had beaten Sangeeta
in their field at about 5 p.m. because her goats had entered
into their wheat field. They chased Vineeta away along with
the goats. The covillagers Virendra Singh and Ashok
Kumar had seen Sangeeta along with the appellant Nem
Singh and the coaccused Awadhesh in the field. Her dead
body was lying in the field.
The report of this incident was lodged by PW1, Om
Prakash, the uncle of the deceased at the police station
Onchha on 16.4.2002 at 3.30 P.M and a case was
registered under section 302 I.P.C at crime No. 96 of 2002
at the said police station by PW5 HC Sudhir Kumar, who
made the necessary G.D. Entry.
PW4 S.O Swami Dayal in whose presence the FIR was
lodged started the investigation of the case. He visited the
village Antupur, where the incident had taken place. The
corpse of the deceased was lying in the wheat field. After
conducting the inquest, he sent the dead body for autopsy
along with necessary documents. He recorded the
statement of witnesses and conducted the spot inspection.
He collected blood stained and plain earth from the place
where the deceased was found lying.
The postmortem was conducted by Dr. Santosh Kumar
PW6 on the dead body of Km. Sangeeta, aged about 10
years, on 17.4.2002 at 3.30 P.M. The death had taken place
about two days earlier. The body was average built. Rigor
Mortis had passed off from all over body. The Body was
swollen up. There were blisters present at places, the skin
had peeled off, and the features were blotted. The tongue
was present between the teeth and was swollen up. The
Eyes were bulging in the eye sockets. Conjunctiva was
congested, cornea was hazy. Feacal matter was coming out
through the anal orifice .
The following antemortem injuries were found:
1.Ligature mark all around neck x 2 cm in width, present
1 cm below thyroid cartilage. The subcutaneous
tissues under the mark were ecchymosed. Ligature
mark horizontally placed.
2.On examination of external genitals, hymen and
vaginal orifice was torn up, blood clot present.
Larynx was congested and tracheal rings broken. Left
and right lungs were congested and right side heart
was full and left side was empty. Stomach contained
semidigested food. The small and large intestine
were half filled with faeces and gases. Liver, spleen
and both kidneys were congested, gall bladder was
half filled. Bladder was empty. Death was due to
asphyxia as a result of antemortem strangulation. Dr.
Santosh Kumar PW6 sent the vaginal smear slides to
the pathologist.
On 17.4.2002, PW4 Swami Dayal arrested the
appellant Nem Singh, who confessed to his crime and
stated that he had strangulated the deceased with an
Angauchha. He had dragged Sangeeta's corpse and
hidden it in the field of Jogendra Singh. He had
thereafter taken out the Angauchha from the neck of
the deceased and hidden it in the “Samp” of the public
tube well and that he could retrieve the same. The I.O
thereafter took the appellant to the tubewell, where
he entered the under ground “Samp” and took out the
Angauchha and gave it to the I.O. It had some blood
spot on it, and was marked as Ext. 3. The I. O also
collected the plain and blood stained earth which were
marked exhibits 1 and 2. He also collected the frock
and underwear of the deceased which were marked
as Exts. 4 and 5. On 28.4.2002, he collected the
pathology report. The vaginal smear report of PW8
Dr. R.D. Yadav showed that the smear slide contained
spermatozoa.
PW7, SI Rajendra Prasad Misra, S.O. Ghiror
commenced the investigation of this case on
29.4.2002. He perused the steps for investigation
taken by the earlier I.O. On 14.5.2002, he visited the
village and recorded the statements of Om Prakash
and other persons including Ashok Kumar. On
28.5.2002, he recorded the statement of Ram Naresh.
On finding the evidence against the appellant Nem
Singh to be sufficient, he submitted a charge sheet
under section 302, 201 and 376(2) I.P.C. on 5.6.2002.
On 2.7.2002, after seeking permission from the court,
he recorded the statement of Awadhesh, and finding
the material against Awadhesh to be sufficient, he
submitted a charge sheet against him on 4.7.2002
under sections 302, 376 and 201 I.P.C. Apart from the
aforesaid formal witnesses, five witnesses of fact PW
1, Om Prakash (informant), PW2 Ashok Kumar, PW
3 Km. Vineeta, PW9, Ram Naresh and PW10,
Meena Devi, mother of the deceased have been
examined in this case.
PW1 Om Prakash has reiterated his FIR and
disclosed that on 15.4.2002, his niece Sangeeta aged
910 years had gone to their field for grazing her
goats. She was accompanied by her younger sister
Vineeta. He was present nearby. He left the two girls
and had gone to another field, and had asked the girls
to later join him there, but when it became evening
and the girls did not come to him, he thought that they
may have collected the goats and gone home. Before
returning home, he even checked the field where the
girls were grazing the goats but they were not there.
Then he returned home and he met Vineeta and she
told him that the appellant had caught hold of
Sangeeta in his field and chased away the goats. It
was 5.30 P.M at that time. The coaccused Awadhesh
was also present in the field. The whole night he
searched for Sangeeta but she could not be found.
The next morning at 7.00 A.M, he caught hold of Nem
Singh at his field and asked him whether he had seen
Sangeeta. At first Nem Singh denied having seen
Sangeeta but when the witness threatened him that
he would report the matter to the police, then the
appellant brought him to the field of Jogendra Singh,
where the corpse of Sangeeta was lying. At that time,
Germain Singh, Harmukh, Anil Kumar, Ravindra
Singh and Ramesh Chandra were present, who had
caught hold of Nem Singh. The informant thereafter
came home and dictated the report to Sarvesh and
handed over the written report to the police. He further
mentioned that he had given an earlier report to the
police which had been torn up by HC Sudhir Kumar.
That report had mentioned that there were injuries on
the private part and neck of the deceased. The report
contains the name of both Awadhesh and the
appellant Nem Singh. He had complained about this
matter to the Collector, Mainpuri, who had sent him to
the C.M.O with his complaint. Thereafter, the C.M.O
had got the postmortem conducted by two doctors.
After the postmortem, he had returned home with his
daughter's corpse and got her cremated. Then he got
the investigation changed.
PW2 Ashok Kumar had deposed that on 15.4.2002 at
about 5 or 5.30 P.M, while returning home after
attending to his wheat crops he was passing by the
appellant's field, when he saw him misbehaving with
Sangeeta. The appellant Nem Singh had caught hold
of Sangeeta, who was shouting. When he had
admonished him for his conduct with Sangeeta, then
out of his fear, the appellant Nem Singh had released
Sangeeta. Thereafter PW 2 returned home leaving
Sangeeta and her sister Vineeta at the spot. The next
day, he learnt that Sangeeta's corpse had been found.
He did not disclose the incident of the previous day to
anyone as no one asked him about it. The next day,
when he returned to Nem Singh's field, he saw the
corpse of Sangeeta lying in Jogendra Singh's field
and a number of persons were assembled there. Om
Prakash had caught hold of Nem Singh. Then he
admonished the appellant Nem Singh for not listening
to his previous day's advice and for killing a minor girl.
At the time of incident, the deceased was about 9 or
10 years old and Vineeta was about 7 years in age.
PW3, Vineeta aged 78 years was examined on
12.5.2003. A preliminary examination of Vineeta was
made by the trial judge for satisfying herself that she
was in a fit condition to give her statement. Vineeta
thereafter deposed that her sister had been murdered
during day time. On being asked whether she was at
home at that time, Vineeta did not give any reply. She
claims to have recognized the appellant and co
accused Awadhesh, who belong to her village. When
she was asked whether the appellant and Awadhesh
did anything with Sangeeta, she was silent. Then she
stated that the appellant Nem Singh alias Moola had
beaten her sister with a “Daranti” but when Moola
murdered Sangeeta, she was not there. In her cross
examination, when she was asked whether she had
seen him beat her sister, she had answered in the
affirmative.
PW9, Ram Naresh deposed that the deceased had
been murdered 8 years earlier. After 3 or 4 days of the
incident, he was sitting in the house of Updesh
Kumar. The appellant Nem Singh came there and told
him that he had committed a mistake as he had
murdered Sangeeta and that they should got the
dispute compromised. He also disclosed having
committed rape on Sangeeta. He claims to have given
an affidavit in this regard before the C.J.M ( Paper no.
18A/1). He denied having given any statement to the
I.O but when confronted with his statement, he stated
that he did not know how the statement was recorded.
He further stated that only Nem Singh had come to
him and he had made no disclosure about Awadhesh.
The father of Sangeeta also did not disclose the name
of Awadhesh. He admitted that Awadhesh was his
nephew by relation.
PW10 Smt. Meena, mother of the deceased had
deposed that on the date of incident, her two
daughters had gone to graze their goats at about 12
or 1.00 P.M. Vineeta had returned with the goats but
Sangeeta had not come back. Vineeta had told her
that the appellant Nem Singh alias Moole had stopped
Sangeeta near his field. When Om Prakash had come
in the evening, she told him that Sangeeta had been
caught hold of by the appellant. Then the whole night
they had made a search for Sangeeta. The next
morning they had again made a search. The corpse of
Sangeeta was found in the field of Jogendra Singh.
There were marks on her neck and some blood was
coming out from her private parts and neck. She
stated this fact to the I.O but he started shouting and
did not let her give this evidence. She later learnt that
the appellant had murdered Sangeeta. She denied
giving any statement under section 161 Cr.P.C. to the
I.O. She further stated in her cross examination that
Ashok was her “chachera Dewar”. On returning from
the field, Vineeta had told her about the incident with
her sister. Her husband was not present at that time
as he had gone out in connection with some invitation.
He returned the next day. He learnt that the I.O. had
not lodged the correct report.
The appellant Nem Singh denied all the allegations levelled
against him in his statement under section 313 Cr.P.C. He
claims to have been falsely implicated due to enmity and
village partibandi. He further stated that Ram Naresh and
Meena Devi were not eye witnesses of the incident and that
they had deposed on the basis of legal advice. Likewise the
other acquitted coaccused Awadhesh also denied the
allegation against him in his statement under section 313
Cr.P.C and claims to have been falsely implicated due to
enmity and village partibandi. He further mentioned that
Meena Devi had deposed on the basis of advice.
We have heard Sri P.N. Mishra, Senior Advocate along with
Sri Rahul Mishra for the appellant and Sri Akhilesh Singh,
learned Government Advocate along with Sri Anant Tiwari,
learned A.G.A for the State.
Sri P.N. Mishra, learned counsel for the appellant submitted
that this was a case of circumstantial evidence and the
chain of circumstance was not complete for establishing the
complicity of the appellant in this offence. The star witness
Vineeta , the younger sister of the deceased Sangeeta
could not be relied upon at all and her testimony was of no
assistance to the prosecution. Likewise, Ashok Kumar PW
2, who was the Chachera Dewar of Meera Devi PW10, the
mother of the deceased and who claims to have been
passing on that way at about 5.00 P.M. on the date in
question when he saw the appellant misbehaving with
Sangeeta. He has also not been relied upon as he did not
make any disclosure that he had seen the deceased and
her sister along with the appellant on the same evening,
even though a search was being made for the deceased. He
claims that Nem Singh was present on the next morning
when he reached the field of Jogendra Singh and saw the
dead body of Sangeeta and Om Prakash (informant) had
caught hold of Nem Singh. Then he reminded Nem Singh of
his admonition not to misbehave with Sangeeta the previous
evening and complained about what he had done. The
evidence of PW1 that he had caught hold of the appellant
the next morning on 16.4.2002 and on his pointing out, the
dead body of Sangeeta was discovered from the field of
Jogender Singh could not be relied upon as the
Investigating Officer clearly deposed that he apprehended
the appellant only on 17.4.2002. As a matter of fact the
dead body was discovered lying on the field of Jogendra
Singh by the witnesses and the appellant was not present at
that time. The evidence of PW9 Ram Naresh, who deposed
to the extra judicial confession by the appellant on
28.5.2002 could not be relied upon because the appellant
had been arrested within two days of the incident on
17.4.2002 and therefore, he was not available for making
such an extra judicial confession to Ram Naresh after 3 or 4
days of the incident. There was also no reason why the
appellant could have made the extra judicial confession to
this witness when this witness Ram Naresh was present
with Updesh Kumar at the latter's house. His 161 Cr.P.C
statement was also belatedly recorded on 28.5.2002. The
recovery of Angauchha from the samp of the public tube
well which is said to have some blood at the ends could not
be relied upon as there was no reason for the appellant to
have kept the Angauchha under the samp and it appears to
be a plant. Also there is no serologist report that there was
any blood on this “Angauchha”.
The investigation in this case was perfunctory as no effort
was made for conducting a smegma test on the penis of the
appellant as absence of smegma might have indicated
recent intercourse by the appellant. There was no other
corroborative circumstance. All the witnesses produced in
this case are related and partisan and no independent
witnesses were examined. The appellant had been roped in
out of suspicion and appear to have been falsely implicated
because there is a tendency to nominate someone as an
accused when such a crime is committed, because the
human mind resists treating a crime as unsolved. For this
proposition, learned counsel relied upon the Apex Court
decision in Shankarala Gyarasilal Dixit v. State of
Maharashtra, AIR 1981 SC 765
Learned Government Advocate on the other hand argued
that from the F.I.R itself the appellant and the coaccused
Awadhesh had been named and no dispute could be raised
regarding their identity. There was adequate evidence of
last seen of the appellant and coaccused along with
deceased Sangeeta and there is recovery of a dead body
and Angauchha at the instance of the appellant. For some
minor defects in the investigation, the prosecution case
could not be disbelieved. There was no reason why the
appellant had been falsely implicated in this case if they had
not committed this grave crime. The chain of circumstance
for establishing the complicity of the appellant in this offence
is complete.
The points which arise for determination in this case are:
1.Whether it has been established that the deceased
had been raped and murdered.
2.Whether identity of the appellant and coaccused
Awadhesh have been fixed on the basis of the
evidence of last seen and recovery of the body and
Angauchha at the instance of appellant and the
evidence of extra judicial confession.
3.Whether the investigation is reliable and the effect of
the nature of investigation.
4.Whether the chain of circumstance is complete and
what is the effect of the contention that there was no
reason for falsely implicating the appellant and co
accused.
5.Whether the acquittal of coaccused Awadhesh had
been properly recorded.
Findings on the points for determination:
A. Whether the deceased had been raped and
murdered:. Although in this case in the FIR, there was
no allegation of rape and even the FIR was registered
only under section 302 I.P.C at case crime No. 96 of
2002 on 16.4.2002. However, PW10 Meena Devi,
mother of the deceased claims to have made a
complaint at P.S. Kotwali against the I.O for having
torn out the first report and also for not taking down
the correct report. In this regard the the informant has
moved repeated applications. A letter (Ext. Ka2) to
National Human Right Commission, New Delhi was
also sent by Om Prakash, which alleges that the fact
that the deceased had been raped by the appellant
was suppressed. The investigation appears to have
been changed and it was admitted by the second I.O.
PW7 R.P. Mishra that the case proceeded on the
basis of the second report. In the inquest also no
injury on the private parts of the deceased are noted
but it is only mentioned that there was bleeding from
the nose and mouth of the deceased. However, the
postmortem report clearly reveals that on the
examination of external genitalia the hymen and
vaginal orifice were torn and blood clots were present.
The pathology examination of the vaginal smear slide
by PW8 Dr. R.P. Yadav also confirmed that
spermatozoa was present on the vaginal smear of the
deceased. In this background, the allegation of rape
stands established. Thus the first circumstance stands
established, that this was clearly a case of rape and
homicidal death of Sangeeta.
B. Whether the identity of the appellant and co
accused in this crime had been fixed:
It may be noted that even if the initial I.O was
disinclined to show this case as a case where rape
was committed, as the complainant and his sisterin
law, Meena Devi, the mother of the deceased were
insisting. It would not imply that the name of the
appellant or the coaccused Avadhesh was being
suppressed, as the names of the appellant Nem Singh
and the coaccused Awadhesh are clearly present in
the existing FIR. Even if it was presumed that the I.O
was trying to help the accused Awadhesh that by itself
could not lead to the contrary inference, that the
appellant or the coaccused Awadhesh had committed
this crime. For coming to a decision on that point the
nature of the evidence adduced for connecting the
appellant and the coaccused with this crime would
still need to be examined.
For fixing the identity of the appellant and the coaccused as
authors of this crime, the last seen evidence of Km. Vineeta
the 7 or 8 years old sister of the deceased and PW2 Ashok
Kumar has been adduced. We find that no reliance could be
placed on the testimony of Km. Vineeta as she claims that
the appellant Nem Singh alias Mula had beaten her sister
with a Daranti, but in the next line she stated that she was
not there at that time. Again in her crossexamination she
says that she saw the appellant assaulting her sister with a
Daranti. However, there is no incised injury of Daranti on the
body of deceased. Also if Vineeta had spoken of the
involvement of the appellant and the coaccused in this
crime to her mother Meena Devi or to the informant, the
witnesses would have first gone to the residence of the
appellant and made enquiries about the deceased, rather
than blindly searching for her in the field the whole night.
Likewise, the evidence of Ashok PW2 on the issue of last
seen is not very reliable. He claims to have been passing
near the field of Nem Singh at 5 or 5.30 P.M. on the date in
question, when he saw Nem Singh misbehaving with
Sangeeta who was crying. On his intervention, the appellant
Nem Singh had left Sangeeta. On the next day, he claims to
have seen the dead body of deceased Sangeeta in the field
of Jogendra Singh and to have protested to the appellant
Nem Singh as to what he had done and why he had not
heeded his advice the previous day to stop misbehaving
with Sangeeta. We, however, find that blood was lying on
the ground near the head of Sangeeta in the field of
Jogendra, where the body was lying. This place was 21
paces from the field of the the appellant Nem Singh. It was
more likely that the deceased was murdered in this field of
Jogendra itself, instead of her body having been
subsequently shifted there, because had the rape taken
place in the appellant's field, there was little likelihood of
blood being found in Jogendra Singh's field as very little
discharge of blood from the nose, mouth and from the
vaginal orifice, could be expected in a case of strangulation
and rape. PW 2 Ashok has also not mentioned in his 161
Cr.P.C statement that he was passing by that way after
harvesting his crops. He suggested that he had left behind
his father and one Virendra Singh and four Mazdoors at the
field but none of those witnesses either saw the incident or
have come forward to give evidence in this case. More
importantly as PW10, Meena Devi mother of the deceased
has stated that Ashok Kumar PW2 was her Chachera
Dewar, and even though she was searching for her missing
child the entire night, but this witness did not disclose to her
at that time that he had seen the appellant misbehaving with
the deceased Sangeeta on the same evening. Therefore,
reliance cannot be placed on the evidence of last seen of
both these witnesses.
In this regard in State of Orissa v. Brahmananda Nanda,
(1976) 4 SCC 288, it has been held by the Apex Court that
nondisclosure of the name of the accused for 1
½ days
after the incident was considered the most important reason
for discarding the testimony of the witness when the
accused was not a known criminal, and the police officer
who was related to the witness had arrived the next day
after the incident. Likewise in Jagir Singh v. State (Delhi),
(1975) 3 SCC 562, Alil Mollah v. State of W.B., (1996) 5
SCC 369 and in Maruti Rama Naik v. State of Maharashtra,
(2003) 10 SCC 670, the same view has been reiterated, and
doubts have been expressed on the reliability of witnesses
who have not disclosed the name of the accused to the
bystanders, police or to others at the earliest opportunity
even after witnessing the incident.
So far as the discovery of Sangeeta's corpse at the instance
of the appellant is concerned, only the informant Om
Prakash PW1 had deposed to this fact that on the day
subsequent to the crime at about 7.00 A.M, he had caught
hold of Nem Singh on his field, and thereafter Nem Singh
had taken him to the spot in Jogendra Singh's field which
was at a distance of 21 paces from his field where the dead
body was lying. We are of the view that the appellant was
unlikely to be present at 7.00 A.M in his field, if he had
committed this crime on the previous day. Also according to
PW1 Om Prakash, Harmukh, Anil Kumar and Ravindra had
caught hold of Nem Singh, yet none of these witnesses
have been examined to support this version. If the appellant
had been caught hold of by these persons, he would have
been handed over to the police straight way and would not
have been arrested on 17.4.2002 by the police from his
house. Further, if the informant PW1 Om Prakash had
lodged the report at 3.30 P.M he would have clearly
mentioned therein that the dead body had been discovered
at the instance of the appellant, but the report merely
mentions that the body was lying in the field. Therefore, this
version of the discovery of dead body at the instance of the
appellant appears to be concocted.
In Shankarala Gyarasilal Dixit v. State of Maharashtra, AIR
1981 SC 765 where the appellant was found sleeping in the
Court yard of his house and the corpse of the raped and
murdered girl was found in the bathroom of that house, and
even the mother and sister had blamed the appellant for the
crime, the allegation of the presence of the appellant at that
place was disbelieved because the police had arrested the
accused the subsequently, and he was not handed over by
the witnesses to the police immediately thereafter. A similar
situation obtains in the present case, where the appellant is
said to have got the corpse of the deceased recovered from
the Joginder's field, yet he was arrested by the police from
his house on the subsequent day.
We also find it difficult to understand why if the appellant
had strangulated the deceased with an Angauchha, he
would unnecessarily untie it, and would have hidden it in the
samp of the public tube well for getting it discovered before
the police under section 27 of the Evidence Act after being
arrested by PW 4 S.I. Swami Prasad, when he could easily
have left it on the neck of the deceased. Also if indeed the
Angauchha contained the blood spot which this witness
claims to have seen, we fail to understand why the I.O
would not have sent the Angauchha to the serologist for
confirmation of the blood stain. In these circumstances, this
evidence of recovery of Angauchha at the instance of
appellant appears to be unreliable and the same appears to
have been foisted on the appellant only for the purpose of
linking him with this crime, in view of the other weaknesses
of the prosecution evidence.
Again the evidence of extra judicial confession before PW9
Ram Naresh does not inspire confidence. Ram Naresh had
stated that 3 or 4 days after the crime, the appellant had
gone to the house of Updesh Kumar with whom this witness
was sitting at that time, when the appellant told them that he
had committed a mistake by raping and murdering the
deceased and that he should try to get the matter
compromised. He has even given an affidavit to this effect
before the C.J.M ( paper no. 18A/1). He however, disputes
the correctness of the statement under section 161 Cr.P.C
recorded by the I.O. It is well settled that an extra judicial
confession is a weak kind of evidence and unless there are
good reasons for placing implicit reliance on it, or it is
corroborated by independent circumstances, it is a tenuous
basis for showing the complicity of the accused. In the
present case there are no good reasons why the appellant
would have gone to the house of Updesh Kumar for the
purpose of making this extra judicial confession before PW 9
Ram Naresh and Updesh Kumar. The said Updesh Kumar
has also not been produced in Court for supporting this
version. Most significantly, this extra judicial confession is
said to have been given 3 or 4 days after the incident,
whereas the appellant had already been arrested on the
second day after the crime. The 161 Cr.P.C statement of
this witness, Ram Naresh was also recorded after one and a
half months on 28.5.2002. Therefore, we are of the view that
this extra judicial confession also does not help in
establishing the complicity of the appellant in this crime.
C. The nature of investigation and its effect:
We also feel that the investigation does not
appear to have been conducted in a sincere
and fair manner. If the appellant after his arrest
had been subjected to medical examination as
was permissible under section 53 Cr.P.C which
provides for medical examination of the arrested
accused by a police officer, if in the opinion of
the officer the examination could give some
clues about the crime. Then it could have been
determined whether there was absence of
smegma or presence of the female's epithelial
cells on the penis of appellant, which may have
been suggestive of recent intercourse, which
may have provided some independent
corroboration regarding the complicity of the
appellant. Some efforts ought also to have been
made for examining other witnesses, who have
been shown to be present such as Updesh
Kumar or Virendra, who had accompanied
Ashok Kumar or Ashok Kumar's father or the
Mazdoors. It appears that too readily the I.O
has sought to foist the complicity in this crime
on the appellant by possibly fabricating a
recovery of an Angauchha recovered from the
“samp” of the tubewell at the appellant's
instance. There was no reason for the appellant
untying the angaucha, from the neck of the
deceased, if indeed it had been used for
strangulating the deceased and for placing it at
the point from where its recovery at the instance
of the appellant was shown. Again there could
have been some corroboration of this claim, if
the Angaucha which the I.O. claimed showed
some blood stains, had been sent to the
Forensic Laboratory for confirmation of this fact.
But his failure to send the same to the
laboratory suggests that the I.O. might have
realized that the so called recovered angaucha
had nothing to do with the crime, and an
inference could legitimately be drawn under
section 114(g) of the Evidence that the I.O.'s
failure in not seeking this evidence from the
forensic laboratory suggested that the I.O.
realized that this evidence would have been
unfavourable to the prosecution, and his claim
that the angaucha contained blood may not
have been confirmed by the serologist. It
therefore appears that because the FIR was
lodged naming the appellant, the I.O has only
proceeded to implicate the appellant without
caring to verify from the independent sources
and to analyse all the circumstances and
necessary corroborative checks for ascertaining
whether the appellant was indeed the author of
this crime. This may have been done in order to
enable the I.O. to shield himself from criticism
by showing that this grave crime had been
solved. But where the option in such cases of
rape and murder of minor girls is usually the
death penalty as has been awarded in this
case, we think that the evidence (or the lack of
it) adduced in this case is not enough for
“snuffing out a life.” Great care and
circumspection is required for recording in a
case such as the present involving the rape and
murder of a minor child, where the normal
punishment is a capital sentence as opposed to
merely a sentence of imprisonment for life. The
failures of investigation then cannot be
considered as mere defects in the investigation,
and inferences cannot automatically be drawn
against the accused regarding their complicity in
the offence on that basis alone. There is still
need to arrive at a finding of guilt on a concrete
evaluation of the quality of the evidence
adduced.
D. Whether the chain of circumstances is
complete, and the possible reasons for false
implication.
1.The 5 golden principles (the panchsheel) relating to
the law on circumstantial evidence have been aptly
enunciated in paragraph 152 in Sharad Birdichand
Sarda v State of Maharashtra, AIR 1984 SC 1622 as
follows:
“152 …....(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not
'may be' established. There is not only a grammatical
but a legal distinction between 'may be proved' and
'must be or should be proved' as was held by this
Court in Shivaji Sahebrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622)
where the following observations were made :
"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.”
The trial judge has recorded 14 circumstances for
establishing the complicity of the appellant in this crime. The
said 13 circumstances are as follows:
1.Sangeeta and Vineeta had gone to graze their goats
in the field.
2.Only Vineeta had returned back with her goats.
Sangeeta did not return.
3.Vineeta informed that Mule alias Nem Singh had
detained Sangeeta because the goats while grazing
had entered in his wheat field.
4.The family members searched for Sangeeta
throughout the night. In the morning they
apprehended accused Nem Singh and at his instance
recovered the dead body of Sangeeta with ligature
marks on the neck and signs of rape on her genitals.
5.The dead body of Sangeeta was recovered from the
wheat field of Jugendra Singh hidden inside the
standing wheat crop at the instance of accused Nem
Singh.
6.The field of Jugendra Singh is adjacent to the field of
accused Nem Singh.
7.From the place where the rape was committed and to
the place where the dead body of Sangeeta was
found, the wheat crop was found to be crushed and
trodden.
8.The witnesses had seen the accused Nem Singh
catching hold of Sangeeta in his field and molesting
her. They had asked Nem Singh about that, but as
Sangeeta was a child, they thought that Nem Singh
might have been playing with her.
9.Accused Nem Singh confessed to his guilt after his
arrest and at his instance the police recovered a piece
of 'Angochha' from an under ground water tank with
bloodstains present on it.
10.The confession of accused Nem Singh followed by
recovery of weapon of the murder (the angaucha) at
his instance is admissible in evidence.
11.The doctor, during post mortem had found the hymen
ruptured and ligature marks present on her neck.
12.The vaginal smear of Sangeeta was sent for
pathological examination and sperms were found in it.
13.All the witnesses of fact have supported the
prosecution version in their testimony. All of them are
throughout cogent and consistent during their cross
examination. Their statements have been found
trustworthy and reliable by this Court as regards the
complicity of accused Nem Singh in this case.
14.None of them ( the witnesses) has assigned any
other role to accused Avadhesh except his presence
in the field in the evening.
Out of these, several circumstances do not point to the
complicity of the appellant but only relate to the fact that
someone had an opportunity to commit the rape and murder
of the deceased and that the deceased had actually been
murdered and also raped. The circumstances which may be
used for linking the appellant with this crime would be
circumstances 3,4,5,6, 8 and 9.
We have already pointed out the weaknesses of the last
seen testimony of PW3 Km. Vineeta and PW2 Ashok
Kumar regarding detaining of Sangeeta by the appellant
because of nondisclosure of this fact on the same evening,
because of which a search for the deceased was conducted
through out the night, and even no visit was paid to the
house of the appellant for inquiring about her whereabouts.
Again we have pointed out how the apprehension of the
accused Nem Singh the next morning and recovery of dead
body at his instance was false as he was arrested not on
16.4.2002 as claimed by the informant PW2 Om Prakash
but he was actually arrested on 17.4.2002 by the police.
Also the crime appears to have been committed in the field
of Jogendra Singh and not in the field of appellant Nem
Singh because of presence of blood near the body in
Jogendra Singh's field which was inconsistent with the crime
having been committed in the field of Nem Singh and the
body being subsequently shifted to the field of Jogendra
Singh. The body appears to have been found by the
witnesses themselves in the absence of the appellant and a
false case appears to have been foisted on the appellant for
having got the corpse discovered.
Likewise, we have expressed a doubt regarding the
Angauchha being recovered from the public tubewell at the
instance of appellant which had blood stains on it by
pointing that there was no reason why the appellant would
have hidden the 'Angauchha' there. Also the failure of I.O to
send the Angauchha for confirming whether the so called
blood spot was actually a blood stain casts a doubt on the
fairness of the investigation. We have further explained that
the extra judicial confession was not reliable and that the
investigation appears to be unreliable, and an attempt has
been made by introducing these circumstances for
buttressing a weak case.
For these reasons we are unable to hold that the chain of
circumstances in this case are so complete that they
exclude any other hypothesis but the hypothesis of guilt
against the accused and that the facts showing the
involvement of the accused in this crime are unerringly
established, and that this Court can reach the inference that
in all likelihood the accused and the accused alone “must”
have committed this crime, and not merely that they “may”
have committed the crime, and we are not in agreement with
the finding of the trial judge that the circumstances
unmistakably point to the complicity of the appellant in this
offence.
The reasons for the false implication of the appellant could
be one, the need of the police to show that it had worked out
this grave crime, so as to avoid public ire. Two, there is a
tendency of the human mind when faced with a brutal crime
to resist the feeling that the guilt for the same cannot be
foisted on someone, which object is accomplished that
someone is held liable for a crime usually on the basis of
strong suspicion. It would be appropriate to refer to the
observations in two Apex Court judgements for meeting this
query as to why the witnesses in such cases depose against
the accused if he has no hand in the crime.
In AIR 1981 SC 765 : (1981 Cri LJ 325) Shankarala
Gyarasilal Dixit v. State of Maharashtra it was observed in
paragraph 33:
"Our judgment will raise a legitimate query : If the appellant
was not present in his house at the material time, why then
did so many people conspire to involve him falsely? The
answer to such question is not always easy to give in
criminal cases. Different motives operate on the minds of
different persons in the making of unfounded accusations.
Besides, human nature is too willing, when faced with brutal
crimes, to spin stories out of strong suspicions."
Likewise in AIR 1983 SUPREME COURT 61 "Prem Thakur
v. State of Punjab" it has been noted in paragraph 11.
“The High Court could not but be aware of the principle that
in a case which depends wholly upon circumstantial
evidence, the circumstances must be of such a nature as to
be capable of supporting the exclusive hypothesis that the
accused is guilty of the crime of which he is charged. That is
to say, the circumstances relied upon as establishing the
involvement of the accused in the crime must clinch the
issue of guilt. Very often, circumstances which establish the
commission of an offence in the abstract are identified as
circumstances which prove that the prisoner before the
Court is guilty of the crime imputed to him. An a priori
suspicion that the accused has committed the crime
transforms itself into a facile belief that it is he who has
committed the crime. Human mind plays that trick on proof
of the commission of a crime by resisting the frustrating
feeling that no one can be identified as the author of that
crime. In the case before us, there is no doubt that five
persons were murdered. Unquestionably, every effort had to
be made to find out who committed those murders. But the
duty is not done by holding someone or the other guilty
somehow or other. In the instant case, the circumstances
attendant upon the incident militate entirely against the
conclusion that the five murders were committed by the
appellant. The very pattern of the crime belies that
conclusion. We are unable to share the High Court's view
that the evidence showing "that the appellant was present
with the deceased persons on the evening of Nov. 8, 1980
and he was then missing from there on the next morning
proves the offences alleged against the appellant beyond
any shadow of doubt". (Underlining added)
D. Propriety of the acquittal of coaccused Awadhesh
The trial judge has acquitted the coaccused Awadhesh
regarding whom a government appeal has been preferred
on the ground that none of the witnesses have assigned any
role to Awadhesh except showing his presence at the field
on the fateful evening along with the appellant Nem Singh.
Although in the paper filed by Ram Naresh ( paper no.
18A/1), PW9 Ram Naresh had stated that both the accused
persons had made an extra judicial confession to him but he
denied executing the said paper and submitted that he did
not know why Awadhesh's name was mentioned in the
affidavit. In Court he had only named the appellant as the
person who had approached him for helping him in getting a
compromise effected by the complainant party. He also
specifically stated in his cross examination that Nem Singh
had not said anything about the presence of coaccused
Awadhesh. The father of Sangeeta had also not named
Awadhesh as a participant in this crime. These are the
additional circumstances for showing the noninvolvement of
coaccused Awadhesh. The other reasons indicated above
regarding the weaknesses in the prosecution testimony
apply with equal force to the case of the acquitted co
accused Awadhesh. Therefore, we see no illegality or
impropriety in the order acquitting Awadhesh.
In the totality of the circumstances appraised above, we are
of the view that the prosecution has failed to garner
sufficient reliable material and evidence for establishing the
complicity of the appellant and the acquitted coaccused in
this crime. The result is that the order of the trial judge
convicting and sentencing the appellant as above is set
aside. The appellant is in jail. He should be set at liberty
unless he is wanted in connection with any other case.
However we direct that prior to his release the concerned
trial Court shall in accordance with section 437 A Cr.P.C,
require the appellant Nem Singh to execute bail bonds with
sureties to its satisfaction enforceable for 6 months for
ensuring his presence before the Apex Court in case his
appearance is required, if an appeal against this judgment is
preferred before it.
Parting remarks: Directions for improving investigations in
rape and murder cases.
It is with a sense of anguish that we have been constrained
to record a finding of acquittal in this case, which has
troubled our conscience immensely. A 10 year old girl child
has been brutally raped and murdered. From the first day,
the police seemed reluctant to show this crime to be a crime
of rape and murder, and have only registered the case as
one under section 302 IPC (ignoring section 376 IPC),
possibly to avert public criticism that there was a break
down of law and order in the area. It was only after the
aggressive insistence of the informant and her husband,
and approach to the D.M., NHRC and other authorities that
the charge of rape was also included. The result was that a
close examination of the genitals and other parts of the
appellant's body after his arrest on the second day, (i.e. on
17.4.2002) might have shown absence of smegma, or
presence of epithelial cells or perhaps even scratch or other
marks or indicators which might have provided support to
the prosecution case. Gross negligence was shown by the
I.O. in not sending the angaucha to the Forensic Science
Laboratory for confirming whether it showed any blood stain.
We therefore make the following suggestions:
1.Whenever there is the slightest suspicion (which is
probable in the case of the apparently reasonless
murder of a little girl child, corroborated by injuries on
her body, especially to her private parts) the police
should not hesitate in registering the crime also under
section 376 IPC, and not show the crime only as a
murder.
2.The medical examination by a Registered Medical
Practitioner (RMP) of the arrested accused whose
examination may provide ground for suggesting his
involvement in the rape crime, be got immediately
conducted by the Investigating officer, not only in
compliance of s. 53 Cr.P.C. (as mentioned above), but
also u/s s. 53 A (1) as specifically provided by Act 25
of 2005 for rape related offences.
3.Under s. 53 A (2) Cr.P.C. the RMP shall immediately
examine the accused noting the name and address of
the accused and the person producing the accused.
Age of the accused, marks of injury on the accused's
person, material collected from the accused's person
for DNA profiling, details of other material particulars,
reasons for conclusions, exact time of
commencement or examination. The report has to be
forwarded to the I.O and through him to the Magistrate
concerned u/s 173(5)(e) Cr.P.C. The “Examination”
u/s 53(2), Explanation (vide Act 25 of 2005) includes
examination of blood, blood stains, semen, swabs in
case of sexual offences and finger nail clippings by
the use of modern scientific techniques including DNA
profiling and other tests considered necessary by the
RMP. A similar procedure for examination of the living
victim of rape, subject to her own or guardian's
consent, within 24 hours has been provided by s. 164
A (vide Act 25 of 2005).
4.Under section 157(1) proviso, (inserted Criminal
Procedure Amendment Act 5 of 2009) the statement
of the victim of rape is to be recorded at her residence
or a place of her choice, and preferably by a woman
police officer in the presence of her parents,
guardians, near relatives, or a local social worker.
5.The supervisory Circle or other senior officer should
ensure that the I.O. registers cases where there are
reasons to suspect that rape has also been committed
also under section 376 IPC and to ensure that the
above requirements are strictly observed. It may be
pointed out that by newly introduced section 166 A
IPC (vide Crl. Law Amendment Act 2013) the failure of
a public servant to record the rape FIR or wrongly
requiring attendance of the victim at the police station
can invite a rigorous imprisonment from 6 months
extending to two years. The supervising officer must
also ensure that modern scientific and forensic
techniques are fully utilized in investigations of rape
cum murders.
6.By section 173(I A) introduced by Amendment Act 5 of
2009 the investigation with regard to a child rape is to
be completed within 3 months of the report at the
police station.
These suggestions are additional to the suggestions for
making more stringent enforcement of gender sensitive laws
and for utilization of modern forensic techniques, increased
creation and utilization of DNA facilities especially in rape
cum murder cases of girl children that have already been
emphasized in two earlier DB decisions in Criminal Capital
Apeeal (Jail) No. 2531 of 2010, Bharo vs. State of U.P.,
decided on 6.9.11, and Capital Case No. 863 of 2011,
Chhotu @ Ajay v. State of U.P., decided on 18.4.13, as also
the directions issued in the ongoing PIL, Crl. W.P. (PIL) No.
1797 of 2011, Mohd. Qasim v. Union of India and others, for
improving investigations in U.P., and for making
investigations gender sensitive, in the order dated
23.5.2013. The copy of the present judgment be also
forwarded within a week to the Principal Secretaries, Home
and Law, U.P. and to the DGP, U.P. for compliance and for
submission of their compliance reports in Crl. W.P. (PIL) No.
1797 of 2011, Mohd. Qasim v. Union of India and others on
its next listing. The R.G. is directed to place the copy of the
present judgment in the said ongoing writ petition forthwith.
Subject to the aforesaid observations the Capital Appeal
preferred by the appellant Nem Singh is allowed and the
Reference under section 366 Cr.P.C sent by the trial judge
is rejected. The Government Appeal against the acquittal of
Awadhesh is dismissed
Order Date :- 9.7.2013
sfa/
Legal Notes
Add a Note....