1

A.F.R.

Judgment Reserved on 25.03.2021

Judgment Delivered on 02.06.2021

Court No. - 10

Case :- CRIMINAL APPEAL No. - 1202 of 2014

Appellant :- Ubhan Yadav @ Abhai Kumar Yadav

Respondent :- State of U.P.

Counsel for Appellant :- Anand Dubey,Arvind Kumar,Piyush Kumar

Singh,Santosh Kumar Kanaujia

Counsel for Respondent :- Govt. Advocate

and

Case :- CAPITAL SENTENCE No. - 6 of 2014

Appellant :- State of U.P.

Respondent :- Ubhan Yadav @ Abhay Kumar Yadav

Counsel for Appellant :- G.A.

Hon'ble Ramesh Sinha,J.

Hon'ble Rajeev Singh,J.

(Per: Rajeev Singh,J.)

(1)The criminal appeal filed by the accused-appellant namely Ubhan

Yadav @ Abhai Kumar Yadav under Section 374 (2) Cr.P.C. and the

Death Reference under Section 366 Cr.P.C., are decided by way of

common judgment.

(2)Heard Shri Santosh Kumar Kanaujiya and Shri Arvind Kumar

Verma, learned counsels for the accused-appellant (Ubhan Yadav @

Abhai Kumar Yadav) as well as Shri Vimal Kumar Srivastava,

learned Government Advocate assisted by Shri Chandra Shekhar

Pandey, learned counsel for the State and perused the lower court

record.

Neutral Citation No. - 2021:AHC-LKO:6463-DB

2

(3)As in the case in hand, the accused-appellant namely Ubhan Yadav

@ Abhay Kumar Yadav was tried by the trial court and convicted

under Sections 302 376 & 201 I.P.C. whereby he was sentenced to

be hanged, by the neck, till death for offence under Section 302

I.P.C., sentenced for life imprisonment and with a fine of Rs.6,000/-

for the offence under Section 376(2)(F), in case of non payment of

fine, additional one year of Simple Imprisonment, and sentenced

for five years of Rigorous Imprisonment with a fine of Rs.4,000/-

for the offence under Section 201 I.P.C., in case of non payment of

fine, additional four months of S.I.

(4)After convicting the accused-appellant for sentence of death,

reference was made by the trial court, which was registered as

Capital Sentence No.06 of 2014, and the same is lying before us for

confirmation of such sentence and death. The accused-appellant has

challenged the judgment and order dated 29.08.2014 passed by Shri

Satya Prakash Naik, Additional Sessions Judge, Court No.1,

Barabanki in S.T. No.266 of 2013 arising out of Case Crime

No.101 of 2013, under Sections 302, 201 & 376 I.P.C., P.S. Dewa,

District Barabanki, in Criminal Appeal No.1202 of 2014 (Ubhan

Yadav @ Abhay Kumar Yadav Vs. State of U.P.).

(5)As per the prosecution case, on 30.03.2013 at 21:10 hours, Prem

Nath Singh came to the Police Station Dewa, District Barabanki

along with Tung Nath Singh S/o Late Raj Bahadur Singh, Bal

Govind Yadav & Bechu Singh, and given a written complaint with

the allegation that his younger daughter, aged about 12 years, went

out from her home on 30.03.2013 at 02:00 p.m. but she did not

come back, then due to worry the family members started searching

her in the neighbour houses, but no one has responded, thereafter,

the family members and other villagers also started searching her in

the adjoining forest & field situated in the north side of the village,

then her body was found under black berry (Jamun) tree of the

3

grove of Pratap Singh and some visible signs of injury was found

on the neck on the body and some nail scratches were also seen on

her hand, her pair of leggings was not found on her body and it

seems that with intention to outrage her modesty, she was killed.

(6)On the basis of aforesaid complaint of Prem Nath Singh

(informant), F.I.R. as Case Crime No.101 of 2013, under Sections

302 I.P.C., P.S. Dewa, District Barabanki was lodged on 30.03.2013

at 21:10 hours in which the time of incident is shown as 14:00

hours (02:00 p.m.) dated 30.03.2013. Chick F.I.R. was prepared and

the incident was also entered into General Diary as G.D. No.41 at

21:10 hours for registering the F.I.R. The S.H.O. concerned along

with his team reached on the spot and started the inquest of body of

the deceased on 30.03.2013 at 22:15 hours and concluded the same

at 23:55 hours in the light of seven Petromax and head light of one

tractor, and the body was sent for postmortem along with requisite

papers. The postmortem of the body of deceased was conducted on

31.03.2013 at 02:00 p.m., in which seven ante-mortem injuries

were found on the body of the deceased, and the cause of death

opined by the team of doctors is Asphyxia, as a result of ante-

mortem throttling.

(7)The Investigating Officer prepared Parcha No.1 on 30.03.2013 by

copying the Chick F.I.R. in the Case Diary and recorded the

statement of Head Constable Ramraj (Chick F.I.R. writer), and also

mentioned that the inquest of the body of the deceased was

conducted in the proper light of seven petromax and head light of

one tractor, as the place of incident was protected, therefore, the

proceeding was deferred for next date. On 31.03.2013, Parcha No.2

of Case Diary was prepared by the Investigating Oficer by copying

the contents of the inquest and also recorded the statement of the

witnesses of the inquest, inspected the place of incident and

prepared the site plan on the pointing out of the informant as well

4

as witnesses of the inquest, and also prepared a recovery memo of

the sleepers, under garments and leggings of the deceased; he also

recorded the statement of witnesses of recovery memo and the

statements under Section 161 Cr.P.C. of Smt. Siyavati (mother of

the deceased), Uday Pratap Singh (brother of the deceased) and

Kumari Anjali Singh (sister of the deceased), and the statement of

witnesses of last seen namely Mohd. Khaleel, Shri Pawan Kumar

Singh and Shri Vinay Prakash Singh were also recorded. In the

statements of Mohd. Khaleel, Pawan Kumar Singh and Vinay

Prakash Singh, the evidence of last seen of accused, near the place

of incident, was found. On 01.04.2013, Parcha No.3 was prepared

by the Investigating Officer, in which the arrest of accused-

appellant is shown and his confessional statement under Section

161 Cr.P.C. was also recorded by the Investigating Officer; on

pointing out of the accused, one notebook was recovered from the

place of the incident and the recovery memo of the notebook was

prepared, and the Investigating Officer also prepared the site plan in

relation to the recovery of the notebook. On 02.04.2013, accused-

appellant was medically examined and his pubic hair, nails and

Penile Wash were taken into possession, and this fact was

mentioned in the Parcha No.4 of the Case Diary dated 02.04.2013.

Parcha No.5 was prepared by the Investigating Officer on

03.04.2013. On 04.04.2013, Parcha No.6 was prepared by the

Investigating Officer and he recorded the statement of Shiv Bahal

Yadav, Shri Balram Singh and Shri Guddu under Section 161

Cr.P.C. On 07.04.2013, Parcha No.8 was prepared by the

Investigating Officer, by which the charge sheet was prepared and

forwarded to the court concerned.

(8)Learned Chief Judicial Magistrate, Barabanki committed the case,

vide order dated 17.05.2013, to the court of session. Thereafter, the

case was registered as S.T. No.266 of 2013 (State vs. Ubhan Yadav

5

@ Abhay Kumar Yadav) arising out of Case Crime No.101 of 2013,

under Sections 302, 201, 376A I.P.C., P.S. Dewa Kotwali, District

Barabanki.

(9)As it is evident from the order sheet that during the course of trial,

the accused-appellant was not in a position to engage the counsel to

defend him, then the order was passed on 16.07.2013, by the trial

court, for appointing the Amicus Curiae/counsel for the accused-

appellant and the order sheet reveals that on 30.07.2013, Mr. Yugal

Kishore Srivastava, Advocate was informed that he has been

appointed as Amicus Curiae to pursue the case of accused-

appellant. On the same day, charges were framed by the court

below.

(10)The prosecution relied on the oral testimony of PW-1 Prem Nath

Singh (informant), PW-2 Vinay Prakash (witness of last seen), PW-

3 Mohd. Khaleel (witness of last seen), PW-4 Dr. Brijesh Kumar

Srivastava (conducted medical of the accused-appellant and

postmortem of the body of the deceased), PW-5 Dr. Shipra Singh

(member of the postmortem team), PW-6 Constable Ramraj, PW-7

Smt. Siyawati (mother of the deceased) and PW-8 M.S. Khan

(Investigating Officer).

It is also evident from the record that the pubic hair, nails and

Penile Wash (fluid spilled by washing the genital part) of the

accused-appellant and pubic hair, nails & under garments of the

deceased were sent to Forensic Science Laboratory U.P.,

Mahanagar, Lucknow for chemical examination and report of the

aforesaid articles. After examination, report was submitted by

Deputy Director FSL, Lucknow on 03.02.2014, which is available

on record, but the same was not proved by the prosecution.

(11)The prosecution also relied on sixteen documentary evidences i.e.

written complaint of the informant (Ext. Ka-1), inquest of the body

6

of the deceased (Ext. Ka-2), postmortem of the body of the

deceased (Ext. Ka-3), medico-legal report of the accused-appellant

(Ext. Ka-4), F.I.R. of the incident (Ext. Ka-5), General Diary in

relation to the registration of F.I.R. of the incident (Ext. Ka-6),

Report of Chief Medical Superintendent, District Hospital

Barabanki for postmortem of the body of the deceased and for

providing the postmortem report of the deceased, her clothes etc.

(Ext. Ka-7), police form No.13 (Ext. Ka-8), challan last photo (Ext.

Ka-9), sample seal (Ext. Ka-10), letter to Reserve Inspector of

Police Line Barabanki (Ext. Ka-11), Site plan prepared on

31.03.2013 (Ext. Ka-12), recovery memo in relation to under

garments, leggings and sleepers of the deceased dated 31.03.2013

(Ext. Ka-13), recovery memo in relation to the notebook of the

accused-appellant dated 01.04.2013 (Ext. Ka-14), site plan related

to recovery of notebook of the accused-appellant (Ext. Ka-15) and

charge sheet dated 07.04.2013 (Ext. Ka-16).

(12)The statement of accused under Section 313 Cr.P.C. was recorded

by the trial court and after hearing the arguments of the parties, the

judgment and order dated 29.08.2014, which is under challenge,

was passed by the trial court.

(13)Learned counsel for the accused-appellant has submitted that he has

been falsely implicated in the present case. He further submitted

that learned trial court failed to appreciate the evidence in correct

perspective. He further submitted that as per the prosecution case,

the deceased went out from her home on 30.03.2013 at 02:00 p.m.,

which was categorically stated by PW-7 Smt. Siyavati (mother of

the deceased) and she also stated that when the deceased did not

come back till 04:00 - 05:00 p.m., then they started searching for

her and she also informed to her husband who was working in the

spinning mill and came to home within half an hour and thereafter,

he along with others also started searching, then the body of

7

deceased was found in the grove of Pratap Singh under the black

berry tree.

(14)Learned counsel for the accused-appellant has further submitted

that Vinay Prakash (PW-2) was produced before the trial court, who

categorically stated before the court below that the incident was of

30.03.2013 and on the said date when he was coming back after

watching his agricultural field in between 02:00 - 02:30 p.m., he

saw that co-villager Ubhan Yadav @ Abhay Kumar Yadav

(accused-appellant) was coming out from the grove of Pratap Singh

and going towards the village from the west side of Khaliyan, and

when the accused saw the witness (Vinay Prakash), he moved fast

but the witness did not notice his activity and went to his home; and

when on the same day at 08:00 p.m., body of the deceased was

found in the grove of Pratap Singh, then he believed that the

incident was caused by the accused-appellant; he also stated in

examination-in-chief that the aforesaid fact was brought into the

notice of family members of the deceased as well as Investigating

Officer and also stated that the accused-appellant does not have

good character. He further submitted that the witness Vinay Prakash

(PW-2) was also cross-examined in which he stated that he was also

searching for the girl (deceased) and he also met with the informant

where the dead body of the deceased was found, but he did not

speak to him about the activities of accused-appellant. He further

deposed that no any article was found near the body of the

deceased, and the prosecution case is improbable on the ground that

when the deceased girl left her house at 02:00 p.m. and the accused

appellant was leaving the grove in between 02:00 - 02:30 p.m., then

when and how the said incident was taken place.

(15)Learned counsel for the accused-appellant has further submitted

that Mohd. Khaleel (PW-3) was also examined before the trial court

and in his examination-in-chief he stated that on the date of incident

8

in between 01:30 - 02:00 p.m., the accused-appellant passed nearby

the agricultural field in which he was working and went to the

grove of Pratap Singh; and he also deposed that the distance of the

grove is 150 mt. from his field in which he had worked since 09:00

a.m. to 05:30 p.m. and when the body of the girl was found then he

also went to the place of incident, but he did not speak to her family

members, and on the next date, he told to the concerned Sub

Inspector.

(16)Learned counsel for the accused-appellant has further submitted

that the statements of Smt. Siyavati (PW-7), Vinay Prakash (PW-2)

and Mohd. Khaleel (PW-3) are contradictory as PW-7 Smt. Siyavati

(mother of the deceased) has categorically stated that girl went out

at 02:00 p.m. from her home, but Vinay Prakash (PW-2) stated that

on the date of incident, accused-appellant was going towards

village in between 02:00-02:30 p.m. from grove of Pratap Singh

and Mohd. Khaleel (PW-3) stated that on the date of incident, he

saw the accused-appellant passing nearby the agricultural filed at

about 01:30 - 02:00 p.m., in which he was working since 09:00 a.m.

to 05:30 p.m., and when the body of the girl was found, then he

also went there, but he did not speak to the family members of the

deceased, and on the next date he told the same to the Sub

Inspector. In such circumstances, the prosecution story is highly

doubtful.

(17)Learned counsel for the accused-appellant has further submitted

that Dr. Brijesh Kumar Srivastava (PW-4) was examined before the

trial court, who conducted the postmortem of the body of the

deceased along with the Dr. Shipra Singh (PW-5). He further

submitted that in the postmortem report, seven ante-mortem injuries

were found on the body of the deceased and doctor has opined that

the cause of death is Asphyxia due to ante-mortem throttling. He

further submitted that the prosecution failed to send the finger print

9

to FSL for examination and in the postmortem report, PW-5 Dr.

Shipra Singh has opined that rape was committed with the

deceased, her hymen is torned and admits two finger.

The ante-mortem injuries of the deceased are as under:-

1. Contusion over inner surface of upper and lower lip in an

area of 2.5 cm x 1.0 cm.

2. Multiple abrasion 0.5 cm x 0.3 cm (18-12 in no.) present

over out aspect of Neck in an area of 10 cm x 7 cm.

3. Abrasion over left forearm, outer aspect, 3 cm x 0.2 cm,

just below to left elbow.

4. Abrasion 4 cm x 0.2 cm over outer aspect of left forearm,

3 cm below to injury No. 3.

5. Multiple abrasion (5-6 in no.) ranging from 2 cm x 0.2 cm

to 5 cm x 0.2 cm, in area of 7 cm x 7 cm present over antero

lateral aspect of left forearm, 3 cm above to left wrist.

6. Multiple abrasion (4-5 in no.) on posterior aspect of left

hand ranging from 3 cm x 0.2 cm to 6 cm x 0.2 cm, in area of

6 cm x 6 cm.

7. Multiple abrasions on postero lateral on (Rt.) arm (18 to 20

in no.) present in area of 20 cm x 7 cm ranging from 2 cm x

0.2 cm to 5 cm x 0.5 cm.

(18)Learned counsel for the accused-appellant has further submitted

that the accused was medically examined after his arrest and his

genital part was also examined. He further submitted that in general

examination of accused, no any obvious swelling or mark of

external injury was found and in the examination of genital i.e. a)

Prepuse (on retracton): smegma present with abrasion 1 cm x 0.5

10

cm on inner aspect of prepuce on ventral surface, just below the

corona of Glans, color of abrasion is bluish black; b) Frenulum:

torn, fibrosed; c) Glans: Abraded contusion involving whole

periphery of glans i.e. just - anterior to corona, bluish black in

colour; and Pubic hair as well as nail of all fingers and Penile Wash

of accused-appellant were also taken into custody and sent to FSL

for examination along with the pubic hair and other articles of the

deceased.

The medico-legal examination of the accused-appellant is as

under:-

A. General Exam :-

a. Average built body.

b. Height 145 cm

c. Weight 50 kg

d. No any obivious swelling or mark of external injury

visible.

B. Local Exam of Genitalia:

a. Pepuce (on retraction) - Smegma present with abrasion 1

cm x 0.5 cm on inner aspect of prepuce on ventral surface,

just below the corona of glans, colour of abrasion is bluish

black.

b. Frenulum - Torn, fibrosed.

c. Glans - Abraded contusions involving whole periphery of

Glans i.e. just anterior to corona, bluish black in colour.

C. Pubic Hair Shave/Nails cut/wrapped in plain paper and sealed in

separate envelops and handed over to CP concerned.

11

D. Penile wash done with normal saline, sealed in a beaker and

handed over to CP concerned for further Forensic/Pathological

examn.

Opinion - KUO/caused by friction.

Duration - About 2½-3 days.

One sealed envelop containing Pubic Hair, Sealed envelop contains

nails of all fingers, sealed beaker containing penile wash are handed

over to CP concerned for further Forensic/Pathological examn, and

(3) Sample of the seal handed over to CP concerned.

(19)Learned counsel for the accused-appellant has further submitted

that the presence of the smegma reveals that accused appellant has

not cleaned his genitals since last 2-3 days. He further submitted

that in case, alleged abrasion on the genital of the accused-

appellant are due to friction during the course of rape with the

deceased having narrow vagina, colour of abrasion was to be red at

the glans but in the present case, it is said that abrasion is bluish

black in colour and if vagina was narrow then the deceased must

have injury on her genital as in the Postmortem Report shows that

two fingers admits in vagina. In such circumstances, the story of the

prosecution is highly improbable.

(20)Learned counsel for the accused-appellant has further submitted

that fibrosed found on frenulum reveals that the accused-appellant

has not cleaned his genitals properly since last 2-3 days. Therefore,

it was obligatory on the part of the prosecution to get the DNA test

to bring out the truth. He further submitted that prior to year 2006,

there was no provisions for DNA test, but by way of amendment by

Act No.25 of 2005 an explanation clause was added in Section 53

of Cr.P.C., which provides that an examination of the person

arrested as is reasonable/necessary in order to ascertain the facts

12

which may support such evidence, examination is defined in the

explanation clause includes the examination of blood, blood stain,

semen, swab in case of sexual offence, sputum and swab hair

samples and finger nails clipping by the use of thorough and

scientific techniques including DNA profiling and such others tests

which the medical practitioners thinks necessary in a particular

case. He further submitted that in the present case, the Articles were

sent to FSL and the report was also sent by Deputy Director FSL,

Lucknow, vide letter No. 190-BIO-13 dated 03.02.2014 addressed

to Chief Judicial Magistrate, Barabanki, in which no semen or

sperm was found on the Pubic hair or slide prepared by the doctors.

He further submitted that the aforesaid report was taken on record

by the learned trial court on 14.03.2014 but the prosecution,

deliberately, has not proved this report because this report denies

the prosecution story, but it was the bounden duty of the trial court

to look into the same.

(21)Learned counsel for the accused-appellant has further submitted

that learned trial court also acted very negligently as the order sheet

reveals that on 30.07.2013, Amicus Curiae was informed about his

engagement as counsel for the accused and on the same date

charges were framed, meaning thereby, no opportunity was given to

the Amicus Curiae for accused appellant to prepare for his

submissions at the stage of framing of charge. He further submitted

that the legal aid provided to the accused-appellant was not

competent enough, which is very much evident from the manner in

which the cross-examination was conducted by him as well as from

his assistance given to the accused-appellant for giving reply

regarding his statement under Section 313 Cr.P.C., as Articles 22,

39A of the Constitution of India and Sections 303/304 r/w Rule 37

of General Rules (Criminal), 1977 framed by Allahabad High

Court, which provides that the legal aid provided by the Amicus

13

Curiae is not to be an eye wash, but it should be real and effective.

He also relied on the decision of Hon’ble Supereme Court in the

case of Anokhilal Vs. State of Madhya Pradesh reported in 2019

SCC OnLine SC 1637 and the case of Shadaan Ansari Vs. State of

U.P. and others reported in 2020 SCC OnLine All 19.

(22)Learned counsel for the accused-appellant has further submitted

that three tests ought to be satisfied where a decision rests solely on

circumstantial evidence - firstly, all circumstances from which

inference of guilt is drawn must be cogently and firmly established;

secondly, the circumstances must unerringly inclined towards the

guilt of the accused; and thirdly, the circumstances taken together

must form a chain so complete that it becomes incapable of

explanation on any reasonable hypothesis except for the guilt of the

accused, and relied on the decision of Hon’ble Supreme Court in

the cases of Gargi vs. State of Haryana (2019) 9 SCC 738,

Chandmal vs. State of Rajasthan (1976) 1 SCC 621, State of U.P.

vs. Hari Mohan (2000) 18 SCC 598, Raj Kumar Singh vs. State of

Rajasthan (2013) 5 SCC 722, Ganpat Singh Vs. State of M.P.

(2017) 16 SCC 353, Baiju Kumar Soni vs. State of Jharkhand

(2019) 7 SCC 773 and Rajendra vs. State (NCT of Delhi) (2019)

10 SCC 623.

(23)Learned counsel for the accused-appellant has further submitted

that all circumstances concerned must establish the circumstances

of a conclusive nature and tendency and relied on the decision of

Hon’ble Supreme Court in the cases of Hanumant Govind

Nargundkar vs. State of M.P. AIR 1952 SC 343, Shivaji

Shahabrao Bobade vs. State of Maharastra (1973) 2 SCC 793,

CBI vs. Mahender Singh Dahiya (2011) 3 SCC 109, Ramesh

Harijan vs. State of U.P. (2012) 5 SCC 777, Sujit Biswas vs. State

of Assam (2013) 12 SCC 406, Anjan Kumar Sarma vs. State of

Assam (2017) 14 SCC 359.

14

(24)Learned counsel for the accused-appellant has further submitted

that in criminal justice system, if two views are possible on the

evidence adduced in the case, one pointing to the guilt of the

accused and other to his innocence, the view which is favourable to

the accused should be adopted and relied on the decision of

Hon’ble Supreme Court in the case of Kali Ram vs. State of

Himachal Pradesh (1973) 2 SCC 808.

(25)Learned counsel for the accused-appellant has further submitted

that while appreciating circumstantial evidence, the trial court must

adopt a very cautious approach and great caution must be taken to

evaluate circumstantial evidence, and he also relied on the decision

of Hon’ble Supreme Court in the cases of Hanumant Govid

Nargundkar vs. State of M.P. AIR 1952 SC 343, Gurpreet Singh

vs. State of Haryana (2002) 8 SCC 18, Ram Singh vs. Sonia

(2007) 3 SCC 1, Musheer Khan vs. State of M.P. (2010) 2 SCC

748.

(26)Learned counsel for the accused-appellant has further submitted

that it is trite law that in criminal cases, the burden of proof on the

prosecution is one of proof beyond reasonable doubt as opposed to

a preponderance of possibilities, but in the present case, the

prosecution failed to establish its case. As per the prosecution case,

the deceased went out from her house at 02:00 p.m., and as per the

statement of Vinay Prakash (PW-2) (question No.2 framed under

Section 313 Cr.P.C. by the trial court), he has seen that in between

02:00 – 02:30 p.m. accused was coming out from the grove of

Pratap Singh and going towards the village and as per the statement

of Mohd. Khaleel (PW-3) that he was working in the field since

09:00 a.m. to 05:30 p.m. and the distance of the grove is 150 m

from the filed he was working, but he did not notice any incident.

In such circumstances, the prosecution story is highly improbable.

He also relied on the decisions of Hon’ble Supreme Court in the

15

case of Shivaji Sahabrao Bobade vs. State of Maharastra (1973) 2

SCC 793, State of Karnataka vs. J. Jayalalitha (2017) 6 SCC 263,

Ashok Debbarma Ram Vs. State of Tripura (2014) 4 SCC 747.

(27)Learned counsel for the accused-appellant has further submitted

that the prosecution relied on confessional statement of the

accused-appellant given to the police and on his pointing out, the

notebook was recovered, but the same was not sent for expert

opinion in relation to hand writing found in the notebook. He

further submitted that the PW-8 M.S. Khan (Investigating Officer)

has categorically mentioned in the inquest report and also deposed

before the trial court that there was sufficient light of seven

petromax and head light of one tractor in which the inquest of the

body of the deceased was conducted, but in the inquest report no

article is mentioned which was found near to the body of the

deceased, and on the next day i.e. 31.03.2013, recovery of under

garments, leggings and sleepers of the deceased was done from the

same place and the same were taken into custody. On 01.04.2013,

on pointing out of the accused-appellant, the notebook was

recovered from the place where the leggings and under garments

and sleepers of the deceased were recovered

(28)Learned counsel for the accused-appellant has further submitted

that if the requirement of Section 27 of Indian Evidence Act are met

with i.e. 1) fact is discovered; 2) discovery is in consequence of the

confessional statement, then the part of the statement that relates to

the fact discovered becomes admissible in the evidence, and the

fact discovered envisaged in the section embraces the place from

which the object was produced, the knowledge of the accused as to

it, but the information given must relate distinctly to the effect, and

he has also relied on the decision of Hon’ble Supreme Court in the

cases of State of U.P. vs. Deoman Upadhyay AIR 1960 11 SCC

16

1125 and Bodhraj @ Bodha vs. State of Jammu & Kashmir

(2002) 8 SCC 45.

(29)Learned counsel for the accused-appellant has further submitted

that constitutional safeguard provided under Article 20(3) of

Constitution of India clearly states that no accused of an offence

shall be compelled to be a witness against himself. He further

submitted that the provisions of Section 25, 26 & 27 of Indian

Evidence Act, 1872 r/w Article 20(3) of Constitution of India make

it clear that a confession made by any person to a police officer is

inadmissible as an evidence, except for the singular cases where

such statement results in a consequent discovery of fact, and also

relied on the decision of Hon'ble Supreme Court in the cases of

Aghnoo Nagesia vs. State of Bihar AIR 1966 SC 119, Vasanta

Sampat Dupare vs. State of Maharastra (2015) 1 SCC 253,

Ishwari Lal Yadav vs. State of Chattisgarh (2019) 10 SCC 437.

(30)Learned counsel for the accused-appellant has further submitted

that in absence of direct evidence of an offence, presumption must

be an inference of the fact drawn from another proved fact that is

likely to flow as a common course for natural events, human

conduct and public/private business vis-a-vis facts, and also relied

on the decision of Hon’ble Supreme Court in the cases of Limbaji

vs. State of Maharastra (2001) 10 SCC 340 and State of Andhra

Pradesh vs. Vasudeva Rao (2004) 9 SCC 319.

(31)Learned counsel for the accused-appellant has further submitted

that decision of trial court suffers from an error in appreciation of

principles of evidentiary law, and relied on the decision of Ram

Chander vs. State of Haryana (1981) 3 SCC 191.

(32)Learned counsel for the accused-appellant has further submitted

that judicial approach must be cautious, circumspect and careful

and the court must exercise prudence and each court from the

17

Session court to the Supreme Court must pursue and analyse facts

of the case at hand and reach an independent conclusion.

(33)Learned counsel for the accused-appellant has further submitted

that learned trial court observed that the accused-appellant was

aged about 35 years without any evidence, but the medico legal

report reveals that he was aged about 27 years at the time of

incident.

(34)Learned Government Advocate has submitted that learned trial

court has rightly appreciated the evidence deposed before the trial

court. He also submitted that in the present case, modesty of twelve

year’s old girl was outraged by the appellant and thereafter, she was

strangulated to death. He also submitted that involvement of the

accused-appellant was found during the course of investigation and

he was arrested on 01.04.2013. Thereafter, the accused was

medically examined and some injuries were found on his genital

parts which was caused due to physical relation with the deceased

(minor). He also submitted that on pointing out of the accused, his

notebook was recovered from the place of incident which was duly

proved by M.S. Khan (PW-8). He also submitted that Vinay

Prakash (PW-2) and Mohd. Khaleel (PW-3) deposed before the trial

court that they had seen the accused appellant near the grove of

Pratap Singh. He also submitted that Dr. Brijesh Kumar Srivastava

(PW-4) and Dr. Shipra Singh (PW-5) deposed before the court

below that the deceased was killed after rape, and her pubic hair

and vaginal smear were sent to FSL along with the nails and pubic

hair of the accused-appellant for forensic and pathological

examination. He also submitted that postmortem of the body of the

deceased was conducted and seven anti-mortem injuries is found on

the body of the deceased.

18

(35)Learned Government Advocate has also submitted that the accused-

appellant was medically examined and smegma was present on his

genital part and the abrasion was also found and the colour of the

abrasion is bluish black due to force penetration. He also submitted

that the deceased was mentally retarded and the offence comes into

the category of rarest of the rare cases as the twelve year’s old

mentally retarded girl was raped and thereafter, murdered. He also

relied on the decision of Hon’ble Supreme Court in the case of

Laxman Naik Vs. State of Orissa reported in (1994) 3 SCC 381,

Dhananjoy Chatterjee @ Dhana vs. State of West Bengal reported

in (1994) 2 SCC 220 and Shivaji @ Dadya Shankar Alhat Vs.

State of Maharastra reported in (2008) 15 SCC 269.

(36)Considering the arguments of the learned counsel for the appellants

as well as learned Government Advocate and going through the

records, it is evident that the proseuction examined four sets of

eight witnesses, which are given as under:-

1. Relation of the deceased and witnesses of facts: Prem Nath

Singh (father of the deceased) PW-1 and Smt. Siyavati (mother of

the deceased) PW-7.

2. Last seen witnesses: Vinay Prakash (PW-2) and Mohd. Khaleel

(PW-3).

3. Experts who conducted medical and postmortem of the

deceased: Dr. Brijesh Kumar Srivastava (PW-4) and Dr. Shipra

Singh (PW-5).

4. Police officers who conducted the investigation and prepared

Chick F.I.R.: Constable Ram Raj (PW-6) and M.S. Khan

(Investigating Officer) PW-8.

(37)It is evident that as per the prosecution case, F.I.R. was lodged on

the written complaint of PW-1 Prem Nath Singh (father of the

19

deceased), in which he categorically mentioned that his younger

daughter went out from her home at 02:00 p.m., but she did not

come back, as a result, search was started and later on, her dead

body was found under the black berry tree in the grove of Pratap

Singh situated in the southern side of the village; thereafter, the

F.I.R. was lodged on 30.03.2013 and the written complaint was

proved by him as Ext. Ka-1. Later on, inquest of the body of the

deceased was conducted by M.S. Khan (PW-8) and the inquest

report was prepared as Ext. Ka-2, and in the inquest report no

article has been mentioned which was found near the body of the

deceased, as in the inquest report it is mentioned that the inquest

was conducted in the light of seven petromax and head light of one

tractor in the night, but neither the leggings, under garments and

sleepers of the deceased nor notebook of the accused was

recovered. On the next date, site plan was prepared by the

Investigating Officer and he found leggings, under garments and

sleepers of the deceased from the place of incident and thereafter,

the statement of Vinay Prakash (PW-2) and Mohd. Khaleel (PW-3)

was recorded by the Investigating Officer under Section 161

Cr.P.C., in which they stated that the accused-appellant was seen by

them near the grove of Pratap Singh. The accused-appellant was

taken into custody on 01.04.2013 and he confessed the crime as

deposed in the statement deposed before the trial court that on his

call, the deceased came in the grove where he raped her and when

she told him that she will inform about the incident to her family

members, then he strangulated her throat and dragged her body

under the black berry tree with the intention to hide, and he also

stated that during the course of incident, his notebook fell down at

the place of incident and suggested PW-8 that the same could be

recovered from the place of incident, then the recovery of notebook

20

was made; but the notebook was not sent to the forensic laboratory

for verifying the handwriting found in the notebook.

(38)It is also evident that PW-7 Smt. Siyavati (mother of the deceased)

has categorically stated in her statement that the deceased went out

at 02:00 p.m. from her house, and Vinay Prakash (PW-2) has

categorically stated in his statement that on 30.03.2013, he was

coming back after watching his agricultural field in between 02:00-

02:30 p.m. then he saw that accused-appellant was coming out from

the grove of Pratap Singh and going towards the village and after

seeing him, the accused started moving fast, but he did not notice

his activities and went to his home; and he also stated that the body

of the deceased was found in the grove of Pratap Singh at 08:00

p.m., then he believed that there is a possibility for committing the

crime by the accused-appellant and this fact was also told to the

family members of the deceased as well as Sub Inspector. The

relevant part of the statement of PW-2 is being reproduced as

under:-

Þfnukad 30 ekpZ 2013 dh ?kVuk gSA eSa vius [ksr ns[kdj djhc

fnu esa nks <kbZ cts okil ?kj ykSV jgk FkkA fd ns[kk fd esjs xkao

dk mHku ;kno mQZ vHk; dqekj ;kno izrki flag dh ckx ls

fudy dj xkao ds if'pe [kfygku gksdj xkao dh rjQ tk jgk

FkkA tc mlus eq>s ns[kk rks vkSj rsth ls Hkkxus yxkA ysfdu ml

le; eSaus mlds bl fdz;k dyki ij dksbZ /;ku ugh fn;k vkSj

vius ?kj pyk x;kA xkao vkus ij irk pyk fd iszeukFk flag dh

yM+dh dq0 Js;k mQZ T;ksfr flag tks dqN gYds fnekx dh FkhA ?kj

ls [ksyus ds fy, fudyh Fkh vkSj mldk irk ugh py jgk FkkA

ifjokjh tu ds ryk'k djus ij mlh fnu izrki flag dh ckx esa

Js;k dh yk'k jkr esa djhc 8 cts feyh FkhA rc eq>s bl ckr dk

fo'okl gqvk fd gks ldrk gS fd ;g ?kVuk gkftj vnkyr

vfHk;qDr mHku ;kno us fd;k gSA rks eSaus bl ckr dk [kqyklk

21

Js;k ds ?kjokyksa o vU; yksxks ls fd;k FkkA vkSj ;g ckr eSaus

njksxk th ls Hkh crk;h FkhA

--------------------------------------------------------------------------------------------------------------------------------

eSa muds ifjokj dk ugh gw¡ yk'k <w<+us esa xkao ds yksx FksA ge Hkh

<w<+ jgs Fks tc gYYkk gqvk fd yk'k fey x;h rks ge yksx nkSM+dj

x;s rks ns[kkA ge iszeukFk ls vyx yM+dh dks <w<+ jgs FksA tc lc

yksx bdV~Bk gks x;s rks iszeukFk ls eqykdkr gqbZ FkhA mruh le;

eSus iszeukFk dks mHku ds fdz;k dyki ds ckjs esa ugh crk;kA tc

?kj x;s rc mHku ds ckjs esa crk;k FkkA ml le; lHkh jks fpYYkk

jgs Fks blfy, crkuk mfpr ugh le>kA yk'k ds vkl ikl iqfyl

okyks dks esjs lkeus dksbZ oLrq cjken ugh gqvk FkkA eSa ns[kdj

pyk vk;k FkkA ?kVuk ds lqcg njksxk th vk;s FksA njksxk th us

esjk c;ku fy;k FkkA njksxk th ds vykok mHku dks ns[kus okyh

ckr eSaus iszeukFk dks crk;h FkhA ß

(39)It is also evident that Mohd. Khaleel (PW-3) also stated before the

trial court that on the date of incident, he was working in the

agricultural field of Pawan Kumar along with the children since

09:00 a.m. to 05:30 p.m. and in between 01:30 - 02:00 p.m.,

accused-appellant passed nearby the field in which he was working

and went in the grove of Pratap Singh; and he also stated that the

grove of Pratap Singh is situated 150 mt away from the field in

which he was working and when the body of the deceased was

found, then he also went to the place of incident but he did not

speak to the informant about the aforesaid incident. On the next

date he stated to the Investigating Officer that Ubhan Yadav was

going towards the grove of Pratap Singh. The relevant para of the

statement of PW-3 is reproduced as under:-

**vkt ls yxHkx lkr ekg igys dh ckr gSA eSa vius cPpksa ds

lkFk iou dqekj ds [ksr esa etnwjh ij fiijesUV yxk jgk FkkA

22

ml fnu le; yxHkx Ms<+ nks cts fnu esa ml [ksr ls gksdj esjs

xkao dk mHku ;kno mQZ vHk; dqekj ;kno fudyk FkkA vkSj izrki

flag dh ckx esa x;k FkkA tc eSa [ksr esa dke dj jgk Fkk rks ml

le; xkao ds iou dqekj flag Hkh ekStwn FksA tc eSa [ksr ls djhc

'kke ikap cts ?kj vk;k rks ekywe gvk fd esjs xko ds izseukFk flag

dh yM+dh Js;k flag mQZ T;ksfr flag xkao esa gh dgha [kks x;h gSA

iszeukFk flag o muds ifjokj ds yksx Js;k flag dh ryk'k dj jgs

Fks rks jkr djhc 8 cts dq0 Js;k flag dh yk'k izrki flag dh ckx

esa tkequ ds isM+ ds uhps feyh FkhA jkr esa iqfyl okys ?kVuk LFky

ij vk;s FksA nwljs fnu tc esjh iqfyl okyks ls eqykdkr gq;h rks

eSaus iqfyl okyks dks crk;k Fkk fd dy eSus mHku ;kno vfHk;qDr

gkftj vnkyr dks izrki flag dh ckx esa nksigj ds le; tkrs

ns[kk FkkA eq>s iwjk fo'okl gS fd mHku ;kno us gh dq0 Js;k flag

dks csbTTkr djds mldh gR;k dh gksxhA

-------------------------------------- --------------------------------------------------------------------------------------

ftl le; eSa fiijesUV yxk jgk Fkk ml le; esjs lkFk NksVs cPps

FksA tgka eSa fiijesUV yxk jgk Fkk ogka ls izrki flag dh ckx

djhc 150 ehVj gksxhA eSaus lqcg 9 cts ls 'kke lk<+s ikap cts

rd fiijesUV yxk;h FkhA

--------------------------------------------------------------------------------------------------------------------------------

yM+dh dh yk'k lok vkB cts jkr esa feyh FkhA tc yM+dh dh

yk'k feyh rks lc yksx ns[kus x;s Fks vkSj eSa Hkh x;k FkkA eSaus oknh

ds ?kjokyks dks ugh crk;k Fkk fd yk'k feyh gSA eSaus nwljs fnu

njksxk th dks crk;kFkk fd eSaus mHku ;kno dks tkrs ns[kk FkkA **

(40)As in the present case, PW-1 Prem Nath Singh and PW-7 Smt

Siyawati (parents of the deceased) have categorically deposed that

at 02:00 p.m., deceased went out to play; and Vinay Prakash (PW-

2) deposed that on the date of incident at 02:00 – 02:30 p.m. when

23

he was coming back after watching his agricultural field, he saw

that accused-appellant was coming out from the grove of Pratap

Singh and going towards village; and Mohd. Khaleel (PW-3)

deposed that he was working in the agricultural filed of Pawan

Kumar along with his children and planting the peppermint then he

saw that in between 01:30 – 02:00 p.m. accused-appellant was

going towards the grove of Pratap Singh, and he also stated that he

was working in the filed since 09:00 a.m. to 05:30 p.m., but he has

not stated that he heard any noise or crying of the deceased, and he

also stated that the grove of Pratap Singh is situated 150 m away

from the field in which he was working.

(41)In such circumstances, the prosecution story is contradictory from

the statement of PW-2 Vinay Prakash, as when PW-2 admitted that

accused-appellant was going towards the village in between 02:00 –

02:30 p.m. then there is no probability of involvement of the

accused-appellant in the alleged incident; and the learned court

below failed to deal the statement of PW-1, PW-2, PW-3 and PW-7

as the statements of PW-1, PW-2, PW-3 and PW-7 are discussed by

the learned trial court at page 16-17, in which it is mentioned that

the deceased went out from her house at 02:00 p.m. and at 02:00 –

02:30 p.m., the accused was seen by PW-2 when he was coming

back to village from the grove of Pratap Singh, but this issue was

not dealt and decided by the trial court. The relevant part of the

findings of the court below in relation to Vinay Prakash (PW-2),

Mohd. Khaleel (PW-3) and Smt. Siyavati (PW-7) are being

reproduced as under:-

**ftlls bl lk{kh ds lk{; ij vfHk;qDr mHku ;kno mQZ vHk;

dqekj ;kno dks <kbZ cts fnu esa izrki flag dh ckx ls fudy dj

xkao ds if'pe [kfygku ls gksdj xkao dh rjQ tkrs gq, ns[kus esa

dksbZ lUnsg fd;k tk ldsA lk{kh xzkeh.k ifjos'k dk jgus okyk gSA

24

lk{kh }kjk dgk x;k gS fd ml le; mlds [ksr esa ljlksa cksbZ

FkhA izk;% yksx nksigj esa vius [ksrksa esa fuxjkuh ds fy, tkrs gSaA

lk{kh dk lk{; izkd`frd ,oa fo'oluh; gSA

lk{kh eks0 [kyhy ih0MCyw0&3 us vius lk{; esa dgk gS fd vkt

ls yxHkx lkr ekg igys vius cPpksa ds lkFk iou dqekj ds [ksr

esa etnwjh ij fiijesUV yxk jgk FkkA ml fnu le; yxHkx Ms<+

nks cts fnu esa ml [ksr ls gksdj esjs xkao dk mHku ;kno mQZ

vHk; dqekj ;kno fudyk Fkk vkSj izrki flag dh ckx esa x;k FkkA

ml le; iou flag Hkh ekStwn FkkA bl lk{kh us dgk gS fd tc

'kke dks ?kj vk;k rks oknh dh yM+dh ds xqe gksus dh [kcj feyh

rFkk vkB&lk<+s vkB cts yM+dh dk 'ko

izrki flag dh ckx ls cjken gqvkA ckn esa bl lk{kh ds le{k

cpko i{k ls ,ehdl D;wjh }kjk ;g lq>ko j[kk x;k gS fd og

oknh ds cpko esa >wBh xokgh ns jgk gSA xokg }kjk bl lq>ko dks

xyr crk;k x;k gS fd mlus dqN ugha ns[kkA bl lq>ko dks Hkh

xyr crk;k x;k gS fd xkao dh ikVhZ cUnh o jaft'k ds dkj.k

vfHk;qDr dks >wBk Qalk fn;kA bl lk{kh dh ftjg esa Hkh ,slk dksbZ

lk{; ugh gS ftlls lk{kh ds ?kVuk ds fnu iou dqekj ds [ksr esa

fiijesUV yxkus rFkk Ms<+&nks cts fnu esa ml [ksr ls gksdj mHku

;kno mQZ vHk; dqekj ds fudy dj izrki flag dh ckx esa tkus

ij lUnsg fd;k tk ldsA bl lk{kh dk lk{; Hkh izkd`frd]

izklafxd o uSlfXkZd gSA lk{kh xzkeh.k ifjos'k dk jgus okyk gSA

etnwjh is'kk O;fDr gSA lk{kh dk lk{; fo'oluh; gSA **

(42)It is well settled by the Hon’ble Supreme Court in the cases of

Gargi vs. State of Haryana (supra), Chandmal vs. State of

Rajasthan (supra), State of U.P. vs. Hari Mohan (supra), Raj

Kumar Singh vs. State of Rajasthan (supra), Ganpat Singh Vs.

State of M.P. (supra), Baiju Kumar Soni vs. State of Jharkhand

(supra), Rajendra vs. State (NCT of Delhi) (supra), Hanumant

Govid Nargundkar vs. State of M.P. (supra), Shivaji Sahabrao

25

Bobade vs. State of Maharastra (supra), CBI vs. Mahender Singh

Dahiya (supra), Ramesh Harijan vs. State of U.P. (supra), Sujit

Biswas vs. State of Assam (supra), Anjan Kumar Sarma vs. State

of Assam (supra) and Kali Ram vs. State of Himanchal Pradesh

(supra) that to prove the commission of offence beyond reasonable

doubt based on circumstantial evidence an unbroken chain of

circumstances pointing to the guilt of the accused alone has to be

established and when there is no direct or ocular evidence of crime,

the guilt can be proved by the circumstantial evidence, but then,

circumstances from which conclusion of guilt must be drawn must

be fully proved and be conclusive in nature to fully connect the

accused with the crimes. All links in the chain of circumstances

must be prove beyond reasonable doubt and the proved

circumstances must be consistent only with the hypothesis of guilt

of the accused alone and none else, as also inconsistent with his

innocence. The relevant para of the judgment of Hon'ble Supreme

Court in the case Kali Ram Vs. State of Himachal Pradesh

(supra) is being reproduced as under:-

"25. Another golden thread which runs through the web of

the administration of justice in criminal cases is that if two

views are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused

should be adopted. This principle has a special relevance in

cases wherein the guilt of the accused is sought to be

established by circumstantial evidence."

(43)As it is evident that the postmortem of the deceased was conducted

by Dr. Brijesh Kumar Srivastava (PW-4) and Dr. Shipra Singh

(PW-5) and seven ante-mortem injuries were found on the body of

the deceased, and it is also evident from the postmortem report

(Ext. Ka-3) that no ante-mortem injury was found on the genital

26

parts of the deceased as the hymen was torned and Vagina admits

two finger; and PW-4 deposed that no injury was found either on

the thigh or in the genital part of the deceased; PW-4 also stated

that accused was medically examined and smegma was found

present with abrasion in blue and black color over the glans and he

opined that there is a possibility that due to intercourse with a

minor such injury may occur on the genital part of the accused due

to friction and that the above injury was two and a half to three

days' old, but on the other side PW-5 Dr. Shipra Singh opined that

hymen was torn and two fingers admit in vagina, therefore, it shows

that abrasion found on the Genital of the accused-appellant do not

support the prosecution case, in case vagina of the deceased was

narrow then injuries must be also there.

(44)Report of the Forensic Science laboratory was discussed by the trial

court at page 20-21 of the judgment and mentioned that neither any

semen nor any spermatozoa was found. As it is evident from the

medico-legal report of the accused-appellant that smegma was

present, therefore, in case, the offence was committed by the

appellant then the spermatozoa was to be found in the FSL report,

but the same was not found; and with regard to the matching of the

semen, we find it from Taylor's Principles and Practice of Medical

Jurisprudence, 2nd Edition (1965) as observed by the Hon’ble

Supreme Court in the case of Krishan Kumar Malik vs. State of

Haryana (2011) 7 SCC 130 that spermatozoa may retain vitality (or

free motion) in the body of a woman for a long period, and

movement should always be looked for in wet specimens. The

actual time that spermatozoa may remain alive after ejaculation

cannot be precisely defined, but is usually a matter of hours.

Seymour claimed to have seen movement in a fluid as much as 5

days old. The detection of dead spermatozoa in stains may be made

at long periods after emission, when the fluid has been allowed to

27

dry. Sharpe found identifiable spermatozoa often after 12 months

and once after a period of 5 years. Non-motile spermatozoa were

found in the vagina after a lapse of time which must have been 3

and could have been 4 months. Had such a procedure been adopted

by the prosecution, then it would have been a foolproof case for it

and against the accused-appellant and the Hon'ble Supreme Court

also observed in the aforesaid decision that after incorporation of

Section 53-A in Cr.P.C. w.e.f. 23.06.2020, it becomes necessary for

the prosecution to go in for DNA test in rape cases, facilitating the

prosecution to prove its case against the accused, but in the present

case, neither DNA test was examined by the prosecution nor the

report of FSL support the prosecution case. The relevant part of the

judgment delivered by the Hon’ble Supreme Court in the case of

Krishan Kumar Malik vs. State of Haryana (supra) is reproduced

as under:-

"43. With regard to the matching of the semen, we find it

from Taylor's Principles and Practice of Medical

Jurisprudence, 2nd Edn. (1965) as under:

"Spermatozoa may retain vitality (or free motion) in the body

of a woman for a long period, and movement should always

be looked for in wet specimens. The actual time that

spermatozoa may remain alive after ejaculation cannot be

precisely defined, but is usually a matter of hours. Seymour

claimed to have seen movement in a fluid as much as 5 days

old. The detection of dead spermatozoa in stains may be

made at long periods after emission, when the fluid has been

allowed to dry. Sharpe found identifiable spermatozoa often

after 12 months and once after a period of 5 years. Non-

motile spermatozoa were found in the vagina after a lapse of

time which must have been 3 and could have been 4 months."

28

Had such a procedure been adopted by the prosecution, then

it would have been a foolproof case for it and against the

accused-appellant."

"44. Now, after the incorporation of Section 53-A in the

Criminal Procedure Code w.e.f. 23-6-2006, brought to our

notice by the learned counsel for the respondent State, it has

become necessary for the prosecution to go in for DNA test

in such type of cases, facilitating the prosecution to prove its

case against the accused. Prior to 2006, even without the

aforesaid specific provision in CrPC the prosecution could

have still resorted to this procedure of getting the DNA test

or analysis and matching of semen of the appellant with that

found on the undergarments of the prosecutrix to make it a

foolproof case, but they did not do so, thus they must face the

consequences."

(45)The Investigating Officer placed before the trial court the

confessional statement of the accused-appellant and also alleged

recovery of notebook. In this regard, we find that Section 25, 26 &

27 of Indian Evidence Act, 1872, provides the law on admissibility

of confession statements under Indian law. They provide as

follows:-

“25. Confession to police-officer not to be proved. - No

confession made to a police officer, shall be proved as

against a person accused of any offence.

26. Confession by accused while in custody of police not to

be proved against him. -- No confession made by any person

whilst he is in the custody of a police-officer, unless it be

made in the immediate presence of a Magistrate, shall be

proved as against such person.

29

27. How much of information received from accused may be

proved. -- Provided that, when any fact is deposed to as

discovered in consequence of information received from a

person accused of any offence, in the custody of a police-

officer, so much of such information, whether it amounts to a

confession or not, as relates distinctly to the fact thereby

discovered, may be proved.”

(46)These provisions reflect the constitutional safeguards provided

under Article 20(3) of the Constitution of India, which states that no

accused of an offence shall be compelled into being a witness

against himself.

(47)The Sections, read with article 20(3) of the Constitution of India

make it amply clear that a confession made by any person to a

police officer is inadmissible as evidence, except for the singular

cases where such statement results in a consequent discovery of

fact. It is also not res integra that confessional statements made to

the police by the accused cannot be a basis to prove the guilt of the

accused. [Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119,

Vsanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC

253, Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC

437].

(48)In the case of State of UP v. Deoman Upadhyay, AIR 1960 SC

1125, a constitution bench of the Hon'ble Apex Court explained the

idea behind Sections 24-27 of the Act:

“17. Section 25 and 26 are manifestly intended to hit at an

evil, viz., to guard against the danger of receiving in

evidence testimony from tainted sources about statements

made by persons accused of offences. But these sections form

part of a statute which codifies the law relating to the

relevancy of evidence and proof of facts in judicial

30

proceedings. The State is as much concerned with punishing

offenders who may be proved guilty of committing offences

as it is concerned with protecting persons who may be

compelled to give confessional statements. If s. 27 renders

information admissible on the ground that the discovery of a

fact pursuant to a statement made by a person in custody is a

guarantee of the truth of the statement made by him, and the

legislature has chosen to make on that ground an exception

to the rule prohibiting proof of such statement, that rule is

not to be deemed unconstitutional, because of the possibility

of abnormal instances to which the legislature might have,

but has not extended the rule.” (emphasis supplied)

(49)On interpretation of Section 27 of the Indian Evidence Act, the

Hon'ble Apex Court in Bodhraj alias Bodha v. State of Jammu

and Kashmir, (2002) 8 SCC 45 has observed that:-

“18. …The words “so much of such information” as relates

distinctly to the fact thereby discovered, are very important

and the whole force of the section concentrates on them.

Clearly the extent of the information admissible must depend

on the exact nature of the fact discovered to which such

information is required to relate. The ban as imposed by the

preceding sections was presumably inspired by the fear of the

Legislature that a person under police influence might be

induced to confess by the exercise of undue pressure. If all

that is required to lift the ban be the inclusion in the

confession of information relating to an object subsequently

produced, it seems reasonable to suppose that the persuasive

powers of the police will prove equal to the occasion, and

that in practice the ban will lose its effect. The object of the

provision i.e. Section 27 was to provide for the admission of

evidence which but for the existence of the section could not

31

in consequences of the preceding sections, be admitted in

evidence. It would appear that under Section 27 as it stands

in order to render the evidence leading to discovery of any

fact admissible, the information must come from any accused

in custody of the police.… The basic idea embedded in

Section 27 of the Evidence Act is the doctrine of confirmation

by subsequent events. The doctrine is founded on the

principle that if any fact is discovered as a search made on

the strength of any information obtained from a prisoner,

such a discovery is a guarantee that the information supplied

by the prisoner is true. The information might be

confessional or non-inculpatory in nature but if it results in

discovery of a fact, it becomes a reliable information.”

(emphasis supplied)

(50)Therefore, it is clear that in the event that the requirement of

Section 27 of the Act are met with i.e. (1) a fact is discovered (2)

discovery is in consequence of the confession statement, then the

part of the statement that relates to the fact discovered becomes

admissible in evidence.

(51)It also fairly settled that interpretation that the “fact discovered”

envisaged in the section embraces the place from which the object

was produced, the knowledge of the accused as to it, but the

information given must relate distinctly to that effect. [State of

Maharashtra v. Damu, (2000) 6 SCC 269, State of Punjab v.

Gurnam Kaur, (2009) 11 SCC 225, Bhagwan Dass v. State (NCT)

of Delhi, (2011) 6 SCC 396, Rumi Bora Dutta v. State of Assam,

(2013) 7 SCC 417]

(52)It is also settled position that Section 27 only becomes applicable

when the confession statement leads to the discovery of a new fact.

32

In Madhu v. State of Kerala, (2012) 2 SCC 399, the Hon'ble Apex

Court clarified that:

“47. …The exception postulated under Section 27 of the

Indian Evidence Act is applicable only if the confessional

statement leads to the discovery of some new fact. The

relevance under the exception postulated by Section 27

aforesaid, is limited ‘…as it relates distinctly to the fact

thereby discovered….’. The rationale behind Section 27 of

the Indian Evidence Act is, that the facts in question would

have remained unknown but for the disclosure of the same by

the accused.”

(53)In Charandas Swami v. State of Gujarat, (2017) 7 SCC 177, the

Hon'ble Apex Court summarized the principles under Section 27:

“59. In our view, the decision in the case of Navjot Sandhu

(Supra) [State (NCT of Delhi) v. Navjot Sandhu alias Afsan

Guru, (2005) 11 SCC 600] has adverted to all the previous

decisions and restated the legal position.

“121. The first requisite condition for utilising Section 27 in

support of the prosecution case is that the investigating

police officer should depose that he discovered a fact in

consequence of the information received from an Accused

person in police custody. Thus, there must be a discovery of

fact not within the knowledge of police officer as a

consequence of information received. Of course, it is

axiomatic that the information or disclosure should be free

from any element of compulsion. The next component of

Section 27 relates to the nature and extent of information

that can be proved. It is only so much of the information as

relates distinctly to the fact thereby discovered that can be

proved and nothing more. …The rationale behind this

33

provision is that, if a fact is actually discovered in

consequence of the information supplied, it affords some

guarantee that the information is true and can therefore be

safely allowed to be admitted in evidence as an incriminating

factor against the accused.…

60. This Court has restated the legal position that the facts

need not be self-probatory and the word “fact” as

contemplated by Section 27 is not limited to “actual physical

material object”. It further noted that the discovery of fact

arises by reason of the fact that the information given by the

Accused exhibited the knowledge or the mental awareness of

the informant as to its existence at a particular place. In

paragraph 128, the Court noted the statement of law in Udai

Bhan (Supra) [Udai Bhan v. State of UP, 1962 Supp (2)

SCR 830] that, “A discovery of a fact includes the object

found, the place from which it is produced and the knowledge

of the Accused as to its existence .” (emphasis supplied)

(54)The presumption of certain facts by the Courts in the absence of

direct evidence of an offence has been an accepted practice.

However certain principles guide such exercise of such

presumption. The presumption must be an inference of fact drawn

from another proved fact that is likely to flow as a common course

of natural events, human conduct and public/private business vis-

avis the facts. The Courts in drawing such presumption must look

at the facts from an angle of common sense and common

experience of man.

(55)The Hon'ble Apex Court in Limbaji v. State of Maharashtra,

(2001) 10 SCC 340 observed that:

“9. …A presumption of fact is a type of circumstantial

evidence which in the absence of direct evidence becomes a

34

valuable tool in the hands of the Court to reach the truth

without unduly diluting the presumption in favour of the

innocence of the accused which is the foundation of our

Criminal Law. It is an inference of fact drawn from another

proved fact taking due note of common experience and

common course of events. Holmes J. in Greer v. US [245

USR 559] remarked “a presumption upon a matter of fact,

when it is not merely a disguise for some other principle,

means that common experience shows the fact to be so

generally true that courts may notice the truth”. … Section

114 enjoins:“the Court may presume the existence of any fact

which it thinks likely to have happened, regard being had to

the common course of natural events, human conduct and

public and private business, in their relation to facts of the

particular case.” Having due regard to the germane

considerations set out in the Section, certain presumptions

which the Court can draw are illustratively set out. It is

obvious that they are not exhaustive or comprehensive. The

presumption under Section 114 is, of course, rebuttable.

When once the presumption is drawn, the duty of producing

evidence to the contra so as to rebut the presumption is cast

on the party who is subjected to the rigour of that

presumption. Before drawing the presumption as to the

existence of a fact on which there is no direct evidence, the

facts of the particular case should remain uppermost in the

mind of the Judge. These facts should be looked into from the

angle of common sense, common experience of men and

matters and then a conscious decision has to be arrived at

whether to draw the presumption or not.” (emphasis

supplied)

35

(56)In State of A.P. v. Vasudeva Rao, (2004) 9 SCC 319, reiterating the

principles for presumption, noted a word of caution in the judicial

exercise of presumption, holding that:

“17. …Law gives absolute discretion to the Court to presume

the existence of any fact which it thinks likely to have

happened. In that process the Court may have regard to

common course of natural events, human conduct, public or

private business vis-a-vis the facts of the particular case. The

discretion is clearly envisaged in Section 114 of the Evidence

Act. 18. …While inferring the existence of a fact from

another, the Court is only applying a process of intelligent

reasoning which the mind of a prudent man would do under

similar circumstances. Presumption is not the final

conclusion to be drawn from other facts. But it could as well

be final if it remains undisturbed later. 19. …Unless the

presumption is disproved or dispelled or rebutted the Court

can treat the presumption as tantamounting to proof.

However, as a caution of prudence we have to observe that it

may be unsafe to use that presumption to draw yet another

discretionary presumption unless there is a statutory

compulsion. This Court has indicated so in Suresh

Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC

337 “A presumption can be drawn only from facts and not

from other presumptions by a process of probable and

logical reasoning”.” (emphasis supplied)

(57)Applying the aforesaid principles, can it be said that the

confessional statement led to discovery of any new fact. Well, there

is nothing on record to establish the same as the FSL Report does

not support the prosecution case.

36

(58)The decision of the trial court suffers from an error in appreciation

of principles of evidentiary law. In Ram Chander v. State of

Haryana, (1981) 3 SCC 191, the Hon'ble Apex Court put to itself,

the question of the role of a judge trying a criminal case. The Court

observed that:

“2. …If a criminal court is to be an effective instrument in

dispensing justice, the presiding judge must cease to be a

spectator and a mere recording machine. He must become a

participant in the trial by evincing intelligent active interest

by putting questions to witnesses in order to ascertain the

truth.”

(59)This was the reason for giving wide powers to explore very avenue

and discover the truth to the presiding judge. The Court further

observed that the Court therefore had to actively participate in the

trial to elicit the truth and to protect the weak and the innocent, at

the same time balancing the fact that it must not assume the role of

the prosecutor. Using Lord Dennings’ words, the Court in the

preceding decision held:

“4. … The Court, the prosecution and the defence must work

as a team whose goal is justice, a team whose captain is the

judge. The judge, like the conductor of a choir, must, by force

of personality, induce his team to work in harmony; subdue

the raucous, encourage the timid, conspire with the young,

flatter and old.”

(60)This has been reiterated in State of Rajasthan v. ANI, (1997) 6

SCC 162, where the Hon'ble Apex Court yet again held that it was

the power and duty of the trial court to put any question to the

witnesses and the parties at any point in order to ascertain the and

discover the relevant facts. The power given under Section 165 of

the Evidence Act was intended to be an unbridled power to the

37

courts only for the reason that necessity for eliciting the truth is

primary in a criminal trial.

“As upheld by the Hon'ble Apex Court, the role of the higher

courts is also to point out errors in law and to lay down

jurisprudence to guide the decision-making of the lower

courts. Keeping this in mind we have reiterated the

principles that ought to have been followed by judicial

officers in their decisions, more so in their capital

punishment sentencing. A decision without appreciation of

principles of law and facts leads to a travesty of justice. We

hope and expect these principles are taken cognizance in all

decisions of the courts.”

(61)As we find that the charges were framed by the trial court on

30.07.2013 and on the same day, the learned Amicus Curiae was

appointed to defend the accused-appellant, which reveals that at the

time of framing of charges, learned Amicus Curiae was not in

position to place his submissions, as no time was given to him by

the court below as provided under Section 227 of Cr.P.C. It also

reveals from the record that learned Amicus Curiae did not make

any request for time for placing his submissions, therefore, the legal

aid provided to the accused-appellant by the trial court was not real

and effective. As it is held by the Hon'ble Apex Court in the case of

Anokhilal Vs. State of Madhya Pradesh (supra) that the legal aid

provided to the accused person through Amicus Curiae must be real

and effective.

(62)As we also find that the prosecution tried to develop a case that the

abrasions found on the Prepuce and Glans (Genitals) of the

accused-appellant is due to intercourse with the child having very

narrow vagina; in case, the prosecution case is admitted that the

injury on the genital part of the accused-appellant is caused due to

38

rape with the minor having small vagina, then as per the Modi's

Medical Jurisprudence & Toxicology, 22nd Edition, an abrasion

or laceration may be discovered on the Prepuce or Glans penis, but

more often on the fraenum, due to forcible introduction of the organ

into the narrow vagina of a virgin, especially of a child, but it is not

necessary that there should always be marks of injuries on the penis

in such cases; bruising and laceration of the external genitals may

be present with redness, tender swelling and inflammation; in

nubile virgins, the hymen, as a result of completed sexual

intercourse, is usually lacerated, having one or more radiate tears,

(more so in posterior half) the edges of which are red, swollen and

painful, and bleed on touching, if examined within a day or two

after the act. These tears heal within five or six days and after eight

to ten days, become shrunken and look like small tags of tissue. But

in the present case, no such injury is found on the genital parts of

the deceased rather PW-5 Dr. Shipra Singh opined two finger

admits in vagina of the deceased, therefore, the prosecution story is

doubtful.

(63)The other point that the prosecution relied are the statements of

circumstantial witnesses namely Prem Nath Singh (PW-1), Vinay

Prakash (PW-2), Mohd. Khaleel (PW-3) and Smt. Siyavati (PW-7)

that the victim, on the date of incident, went out from her house at

02:00 p.m. and it is undisputed that Vinay Prakash (PW-2) has seen

the accused-appellant, on the date of incident, in between 02:00 -

02:30 p.m., coming back from the grove of Pratap Singh; and

Mohd. Khaleel (PW-3) has admitted that he was in the agricultural

filed which is 150 mt away from the place of incident since 09:00

a.m. to 05:30 p.m., but he has not deposed before the trial court that

either he saw the deceased or heard her crying. Therefore, the

prosecution story is also doubtful.

39

(64)As after amendment in the year 2006, under Section 53 A of Cr.P.C.

it is obligatory on the part of the prosecution to get the DNA test to

nab the actual culprit, but in the present case, the pubic hair and

nails of the accused-appellant and two slides of vaginal smear of

the deceased along with her pubic hair were also sent for

pathological examination but the DNA test was not requested by

the Investigating Officer.

(65)It is also relevant to mention here that the Forensic/Pathological

examination of Vaginal smear of the deceased was done by the

FSL, Lucknow who in turn sent a report which was taken into

record by the trial court on 14.03.2014 and on this report, number

B31/2 was introduced but it was not exhibited; even then the trial

court considered in the judgment and observed that even no semen

or spermatozoa was found, but in the injury alleged, abrasion was

found on the genital part of the accused; and the accused-appellant

was also seen by the Mohd. Khaleel (PW-3) in between 02:00 -

02:30 p.m. at the place of incident, when he was going towards the

village from the place of incident, therefore, the accused-appellant

is guilty; but the learned trial court failed to consider the fact that in

case, no spermatozoa is found in the FSL examination of slides of

vaginal smear then it was obligatory to conduct the DNA test; and

the Investigating Agency also failed to comply the mandatory

provisions of Section 53A of Cr.P.C. (amended in year 2006) as

held by the Hon’ble Supreme Court in the case of Krishan Kumar

Malik vs. State of Haryana (supra), therefore, the prosecution

story is not reliable in relation to the manner in which alleged

offence has been committed.

(66)As in the case of minor discrepancies found in the

investigation, Appellate Court does not interfere in the judgment of

trial court but in such a heinous offence, the investigation was done

in very casual manner as on the date of incident, the inquest was

40

done in the night in the light of seven petromax and head light of

one tractor, and in the inquest report nothing is mentioned in the

box that whether any article/item was found at the place of incident,

near the body of the deceased, but on the next date, the site plan

was prepared and the recovery of pair of leggings, under garments

and sleepers of the deceased was shown and on the next date, after

arrest of the accused-appellant, recovery of notebook of the accused

is shown on the basis of his confessional statement, but the same

was not sent to FSL for examination of hand writing of the accused-

appellant; and the Investigating Officer also committed blunder by

not requesting the DNA test as prescribed by Section 53A of Cr.P.C.

(amended in the year 2006) are major lapses. In the case of Sunil

Kundu and Another vs. State of Jharkhand reported in 2013 (4)

SCC 422, the Hon'ble Supreme Court held that on the grant of

minor lapses or irregularities in investigation acquittal is not

permitted but major lapses those impact on the case of the trial

cannot be ignored. The relevant para of Sunil Kundu and Another

vs. State of Jharkhand (supra) is as under :-

"29.We began by commenting on the unhappy conduct of the

investigating agency. We conclude by reaffirming our view.

We are distressed at the way in which the investigation of this

case was carried out. It is true that acquitting the accused

merely on the ground of lapses or irregularities in the

investigation of a case would amount to putting premium on

the deprecable conduct of an incompetent investigating

agency at the cost of the victims which may lead to

encouraging perpetrators of crimes. This Court has laid

down that the lapses or irregularities in the investigation

could be ignored subject to a rider. They can be ignored only

if despite their existence, the evidence on record bears out

the case of the prosecution and the evidence is of sterling

41

quality. If the lapses or irregularities do not go to the root of

the matter, if they do not dislodge the substratum of the

prosecution case, they can be ignored. In this case, the lapses

are very serious. PW 5 Jaldhari Yadav is a pancha to the

seizure panchnama under which weapons and other articles

were seized from the scene of offence and also to the inquest

panchnama. Independent panchas have not been examined.

The investigating officer has stated in his evidence that the

seized articles were not sent to the court along with the

charge-sheet. They were kept in the malkhana of the police

station. He has admitted that the seized articles were not sent

to the forensic science laboratory. No explanation is offered

by him about the missing sanha entries. His evidence on that

aspect is evasive. Clothes of the deceased were not sent to

the forensic science laboratory. The investigating officer

admitted that no seizure list of the clothes of the deceased

was made. Blood group of the deceased was not ascertained.

No link is established between the blood found on the seized

articles and the blood of the deceased. It is difficult to make

allowance for such gross lapses. Besides, the evidence of

eyewitnesses does not inspire confidence. Undoubtedly, a

grave suspicion is created about the involvement of the

accused in the offence of murder. It is well settled that

suspicion, however strong, cannot take the place of proof. In

such a case, benefit of doubt must go to the accused. In the

circumstances, we quash and set aside the impugned

judgment and order [Sunil Kundu v. State of Jharkhand,

Criminal Appeal No. 1762 of 2004, decided on 20-8-2007

(Jhar)] . The appellant-accused are in jail. We direct that the

appellants A-1 Sunil Kundu, A-2 Bablu Kundu, A-3

42

Nageshwar Prasad Sah and A-4 Hira Lal Yadav be released

forthwith unless otherwise required in any other case."

As the Hon'ble High Court in Criminal (Capital) Appeal No.5298

of 2015 (Vinod and Another vs. The State of U.P.), vide its

judgment and order dated 17.02.2017 issued a direction to the State

to make investigation of criminal case more effective, reliable and

flawless. The relevant part of the judgment in the case of Vinod and

Another vs. The State of U.P. (supra) is reproduced as under:-

"192. In view of the above, as our humble contribution, in

order to make investigation of Criminal cases more effective,

reliable and flawless We are passing following directions:

(I) All the Investigating Officers shall endeavor/make their

best efforts to record the statements of informant,

victim/injured and other important witnesses of fact, of the

case as far as possible at the earliest and If it is not possible

to do so within 24 hours from the registration of First

Information Report, they shall furnish separate explanation

for late recording of the statement of each witness alongwith

statement of the witness concerned.

(II) With a view to curtail delay in recording the statements

of informant/victim and witnesses, to curb the growing

tendency of the witnesses to disown their earlier statements

recorded under Section 161 Cr.P.C. and turning hostile and

to ensure their reliability, the Investigating Officer and State

Government shall without fail inform the informant and all

the witnesses that they may submit their evidence by e-

mail/speed post or registered post on affidavit, sworn before

the Oath Commissioner or Public Notary. If such affidavits

are filed by the informant and the witnesses, same will be

received, taken into consideration and needful will be done

43

in respect of those by the I.O. In such cases, I.O. will also be

at liberty to make further queries with the

informant/witnesses if need arises to do so.

(III) Copies of statements recorded under Section 161 Cr.P.C.

shall be simultaneously provided by the Investigating Officer

to the first informant and witnesses with intimation that if

they have any objection in respect of their statement or any

discrepancy is found in the same, it shall be brought to the

notice of the I.O. at the earliest, preferably within a week

alongwith supporting evidence. An endorsement to this effect

shall also be made by the I.O. in the case diary.

(IV) The above directions (I), (II) and (III) will also apply in

respect of recording statements of accused and defence

witnesses.

(V) All the Investigating Officers will collect each and every

material and piece of evidence available at the place of

incident and at the earliest and if not done so within 24

hours, they will furnish their explanation to that effect.

(VI) I.O. will prepare site plan of each and every place

connected with the crime showing all the necessary details

thereof like distance of witness/injured/aggressor etc.

VII) As directed by Hon'ble Apex Court in Prakash Vs. State

of Karnataka (supra), the prosecution must lay stress on

scientific collection and analysis of evidence, particularly

since there are enough methods of arriving at clear

conclusions based on evidence gathered. In view of above,

all relevant material and evidence collected from the site,

shall be sent for Hand Writing Expert, Ballistic Expert,

Forensic Science Laboratory, Finger Print Expert, D.N.A.

44

Expert etc. as the case may be, by the I.O. for obtaining

expert opinion/report in respect to such articles collected

from the place of incident.

(VIII) Where ever it is possible and necessary the I.O. will

collect 'Call Details Record' (C.D.R.) of Mobile Phones/Land

Line phones of the victim/witnesses/accused as the case may

be, footage of C.C.TV cameras available on the spot/near by

locations and put phone numbers/mobile numbers of

suspected persons likely to be involved in the offence

concerned on surveillance, without any undue delay.

(IX) In all cases I.O. will adhere strict compliance of various

provisions of Cr.P.C., Police Act and the Regulations related

to the 'investigation'.

(X) Superior Police Authorities shall develop effective

monitoring system to ensure strict compliance of relevant

rules, provisions and above directions by the Investigating

Officers during investigation. In the cases of willful and

intentional violation of the aforesaid by the Investigating

Officer concerned same shall be cured at the earliest and

appropriate action may be taken against the erring

Investigating Officer.

(XI) The State Government shall ensure vide publicity of

these directions by its publication in the news papers,

electronic media and display on notice boards at the offices

of superior Police Officers.

(XII) A copy of this order shall be sent to Chief Secretary and

Secretary (Home), Government of Uttar Pradesh for

compliance of this order. They will submit their compliance

45

report on affidavit within 3 months from the date of receipt of

this order, to this Court.

(XIII) The Registrar General of this Court is directed to send

a copy of this order to the Chairmen of all the District Legal

Services Authority and the State Legal Services Authority for

vide publicity of above directions."

(67)As it is also evident that the statement of the accused-appellant

under Section 313 Cr.P.C. was taken by the trial court by framing

eleven questions on 08.08.2014, but prosecution evidence available

on record was not put to the accused-appellant properly; as in

Question No.1, it is not mentioned that the deceased went out from

her home at 02:00 p.m on the date of incident, in Question No.2 it

is mentioned that on the date of incident at about 02:30 p.m., PW-2

Vinay Prakash has seent the accused-appellant coming out from the

grove in question and in the Question No.3, in relation to the

deposition of PW-3 Mohd. Khaleel, in which time is not explained

properly and it is also not stated that he was working in the

agricultural field since 09:00 a.m. to 05:30 p.m., and in question no.

3 this fact was not mentioned which is most relevant in the identical

manner, and other questions based on deposition of other witnesses

are having major lapses. The contents of statement of accused-

appellant recorded under Section 313 Cr.P.C. prepared by the trial

court and the reply of the accused-appellant, who was represented

by the Amicus Curiae, in relation to them is as under:-

c;ku eqfYte varxZr /kkjk 313 n0iz0la0

vfHk;qDr mHku;knoiqq= lhrkjke

vk;q& 35 o"kZ yxHkx is'kk [ksrhfuoklh bljsguk

Fkkuk nsokftyk&ckjkcadh

46

iz'u 1- vfHk;kstu lk{kh la- 1 izseukFk flag us lk{; fn;k gS fd

esjh yM+dh Js;k ?kVuk okys fnu ?kj ls dgha xk;c gks x;h Fkh

ftldh ryk'k dh x;h rks mldh yk'k xkao ds ckgj taxy esa

feyh ftldh fjiksVZ bl lk{kh us Fkkuk nsoka esa ntZ djk;hA bl

lk{kh us U;k;ky; ij rgjhj izn'kZ d&1 o iapk;rukek izn'kZ d&2

dks lkfcr fd;k gS] bl lEcU/k esa vkidks D;k dguk gS\

mRrj& fjiksVZ esjs fo:} ugh gSA oknh dk c;ku U;wVªy gSA

iz'u 2- vfHk;kstu lk{kh la- 2 fou; izdk'k us U;k;ky; ij lk{;

fn;k gS fd ?kVuk okys fnu fnu esa djhc <kbZ cts mlus vkidks

?kVuk LFky okyh ckx ls fudy dj tkrs gq, ns[kk Fkk vkSj

mlds tkus ds ckn mlh taxy esa e`rdk dh yk'k cjken gqbZ Fkh]

bl lEcU/k es vkidks D;k dguk gS\

mRrj& vfHk;kstu lk{kh 2 oknh Fkk esyh ennxkj gS blfy,

xokgh fn;k gSA

iz'u -3- vfHk;kstu lk{kh la- 3 eks0 [kyhy us lk{; nh gS fd esjs

xkao ds izseukFk flag dh yM+dh Js;k dgha xk;c g¨ x;h Fkh]

mldh yk'k xkao ds ckgj ckx esa feyh Fkh] ekSds ij iqfyl okys

vk;s Fks] rc eSaus crk;k Fkk fd eSu vkidks ?kVuk LFky okyh ckx

esa fnu esa nksigj ds le; tkrs gq, ns[kk Fkk] bl lEcU/k esa

vkidks D;k dguk gS\

mRrj-lk{kh la0 3 oknh dk tsfo;k xokg o etnwj gS

blfy, xokgh fn;kA ?kVuk okys fnu og iou dqekj d [ksr esa

isijfeUV yxk jgk FkkA iou dqekj oknh ds ifjokj dk gSA

iz'u 4- vfHk;kstu lk[kh la0 4 MkDVj c`ts'k dqekj JhokLro us

lk{; nh gS fd eSus e`rdk Js;k dh yk'k dk iksLV ekVZe fd;k Fkk

rFkk vkids xqIrkaxks dk ijh{k.k fd;k FkkA bl lk{khus iksLV ekVZe

47

fjiksVZ izn'kZ d 3 o vkidh esfMdy fjiksVZ izn'kZ d 4 dks lkfcr

fd;k gS] bl lEcU/k esa vkidks D;k dguk gS\

mRrj& lgh gSA

iz'u 5- vfHk;kstu lk{kh la0 5 MkDVj f'kizk flag us lk{; nh gS

fd e`rdk ds iksLV ekVZe ds le; eSa Hkh ekSds ij ekStwn FkhA

mlds xqIrkaxks dk ijh{k.k esjs }kjk fd;k x;k Fkk] ftls MkDVj

oh0ds0 JhokLro us viuh iksLV ekVZe fjiksVZ eas vafdr fd;k]

bl lEcU/k esa vkidks D;k dguk gS\

mRrj& Mk0 f'kizk flag dk lk{; Lohdk;Z gSSA

iz'u 6- vfHk;kstu lk{kh la0 6 gsM dka0 jkejkt us lk{; nh gS fd

bl eqdnes dh fpd o dk;eh esjs }kjk fy[kh x;h FkhA bl lk{kh

us fpd izn'kZ d 5 o dk;eh th0Mh0 izn'kZ d 6 dks U;k;ky;

esa lkfcr fd;kA bl lEcU/k esa vkidks D;k dguk gS\

mRrj& gs0dk0 jke jkt flag us fjiksVZ fy[k og Lohdk;Z gSA

iz'u 7- vfHk;kstu lk{kh la0 7 Jherh fl;korh e`rdk dh eka us

lk{; nh gS fd esjh yM+dh ?kVuk okys fnu fnu eas xk;c gks

x;h Fkh] ftldh yk'k jkr esa izrki flag dh ckx esa feyh FkhA

bl lEcU/k esa vkidks D;k dguk gS\

mRrj& Jherh fl;krh dk c;ku nqHkkZoukiw.kZ gS og vkf[kjh c;ku

iyV fn;k gS Lohdk;Z ugh gSA

iz'u 8- vfHk;kstu lk{kh la0 8 ,p0,p0vks0 ,e0,e0 [kku us

lk{; nh gS fd bl eqdnes dh foospuk esjs }kjk dh x;h FkhA

nkSjku foospuk e`rdk dh yk'k dk ia;krukek o uD'kk utjh rFkk

vkidks fxjQ~rkjh djus o lk{kh x.k dk c;ku ysus ds mijkUr

vkjksi i= U;k;ky; esa izsf"kr fd;k FkkA bl lk{kh us iapk;rukek

izn'kZ d 7 rk izn'kZ d 11] uD'kk utjh izn'kZ d 12 o d 15 QnZ

izn'kZ d 13] QnZ Mk;jh izn'kZ d 14] vkjksi i= izn'kZ d 16 rFkk

48

ijpktkr diM+s oLrq izn'kZ 1 rk 10 dks U;k;ky; ij izekf.kr

fd;k gS] bl lEcU/k esa vkidks D;k dguk gS\

mRrj& lk{kh ua0 8 dh foospuk fu;e ds izfrdwy gS fu;ekuqlkj

foospuk ugh dh gSA

iz'u 9- vkids fo:} eqdnek D;ksa pyk\

mRrj& ukyh ukcnku ds jaft'k o iqfyl viuh ftEesnkjh ls cpus

ds fy, izkFkhZ vfHk;qDr dks >wBk Qalk;k gSA

iz'u 10- D;k vkidks lQkbZ nsuh gS\

mRrj& th ughA

iz'u 11- D;k vkidks dqN vkSj dguk gS\

mRrj& th ughA

fu0v0 mHku mQZ vHk; ;kno

g0 viBuh;

vij l= U;k;k/kh'k

U;k;ky; la0 1] ckjkcadh

08-08-2014

(68)As the accused-appellant categorically mentioned that due to

enmity in between the family members of the deceased and him in

relation to water drainage, he has been falsely implicated in the

present case by the police only to work out the case to avoid their

responsibilities. The circumstances on which the prosecution relied

upon has not been put under Section 313 Cr.P.C. to the accused-

appellant which prejudice his right to lead effective defence and a

fair trial which has caused miscarriage of justice. As it is well

settled by the Hon'ble Supreme Court in the case of Mahesh

49

Tigga vs. State of Jharkhand (2020) 10 SCC 108 that in criminal

trial under Section 313 Cr.P.C., it is obligatory on the trial court to

explain incriminating evidence against him in question to furnish

evidence against his defence. but in the present case, in very casual

manner, questions are framed. The Hon'ble Supreme Court in

Criminal Appeal No.1735-1736 of 2010 (Satbir Singh & Another

vs. State of Haryana) vide judgment and order dated 28.05.2021

again reiterated the aforesaid principles. The relevant paras of

judgment of Maheswar Tigga vs. State of Jharkhand (supra) and

Satbir Singh & Another vs. State of Haryana (supra) are

reproduced as under:-

Maheswar Tigga vs. State of Jharkhand (supra)

"9. This Court, time and again, has emphasised the

importance of putting all relevant questions to an accused

under Section 313 CrPC. In Naval Kishore Singh v. State of

Bihar [Naval Kishore Singh v. State of Bihar, (2004) 7 SCC

502 : 2004 SCC (Cri) 1967], it was held to be an essential

part of a fair trial observing as follows: (SCC p. 504, para 5)

“5. The questioning of the accused under Section 313 CrPC

was done in the most unsatisfactory manner. Under Section

313 CrPC the accused should have been given opportunity to

explain any of the circumstances appearing in the evidence

against him. At least, the various items of evidence, which

had been produced by the prosecution, should have been put

to the accused in the form of questions and he should have

been given opportunity to give his explanation. No such

opportunity was given to the accused in the instant case. We

deprecate the practice of putting the entire evidence against

the accused put together in a single question and giving an

opportunity to explain the same, as the accused may not be

50

in a position to give a rational and intelligent explanation.

The trial Judge should have kept in mind the importance of

giving an opportunity to the accused to explain the adverse

circumstances in the evidence and the Section 313

examination shall not be carried out as an empty formality. It

is only after the entire evidence is unfurled the accused

would be in a position to articulate his defence and to give

explanation to the circumstances appearing in evidence

against him. Such an opportunity being given to the accused

is part of a fair trial and if it is done in a slipshod manner, it

may result in imperfect appreciation of evidence.”"

Satbir Singh & Another vs. State of Haryana (supra)

"22. It is a matter of grave concern that, often, Trial Courts

record the statement of an accused under Section 313, CrPC

in a very casual and cursory manner, without specifically

questioning the accused as to his defense. It ought to be

noted that the examination of an accused under Section 313,

CrPC cannot be treated as a mere procedural formality, as it

is based on the fundamental principle of fairness. This

provision incorporates the valuable principle of natural

justice- “audi alteram partem”, as it enables the accused to

offer an explanation for the incriminatory material

appearing against him. Therefore, it imposes an obligation

on the part of the Court to question the accused fairly, with

care and caution. The Court must put incriminating

circumstances before the accused and seek his response. A

duty is also cast on the counsel of the accused to prepare his

defense, since the inception of the trial, with due caution..."

(69)Learned trial court has also observed that the deceased was

mentally retarded and the accused-appellant is having a bad

51

character but there are no evidence available on record in these

regard.

(70)As the Hon'ble Supreme Court in the Case of Reena Hazarika vs.

State of Assam (2019) 13 SCC 289 that unlike prosecution, accused

is not required to establish defence beyond all reasonable doubt -

accused has only to raised doubts on a preponderance of

probability. The relevant of the aforesaid judgment is reproduced as

under:-

"22.The entirety of the discussion, in the facts and

circumstances of the case, the nature of evidence available

coupled with the manner of its consideration, leaves us

satisfied that the links in the chain of circumstances in a case

of circumstantial evidence, cannot be said to have been

established leading to the inescapable conclusion that the

appellant was the assailant of the deceased, incompatible

with any possibility of innocence of the appellant. The

possibility that the occurrence may have taken place in some

other manner cannot be completely ruled out. The appellant

is therefore held entitled to acquittal on the benefit of doubt.

We accordingly order the acquittal and release of the

appellant from custody forthwith, unless wanted in any other

case."

(71)The Court is conscious of the fact that in the present case, 12 years'

old girl has been sexually assaulted and done to death by throttling,

but the fact remains that whether it was the accused-appellant who

has committed the alleged crime appears to be doubtful. In such

circumstances, the Court comes to the conclusion that the manner

in which the prosecution tried to establish the execution of crime is

doubtful. Hence, the prosecution failed to prove its case beyond

reasonable doubt. The incident does not appear to have happened in

52

the manner in which the prosecution want the Court to believe it

had happened. Therefore, the accused-appellant becomes entitle for

the benefit of doubt and the appeal deserves to be allowed.

(72)For all the aforesaid reasons, we allow the Criminal Appeal No.

1202 of 2014 filed by accused-appellant Ubhan Yadav @ Abhai

Kumar Yadav and set aside the judgment of conviction dated

29.08.2014 passed by Shri Satya Prakash Naik, Additional Sessions

Judge, Court No.1, Barabanki in S.T. No.266 of 2013 arising out of

Case Crime No.101 of 2013, under Sections 302, 201 & 376 I.P.C.,

P.S. Dewa, District Barabanki, in Criminal Appeal No.1202 of 2014

(Ubhan Yadav @ Abhay Kumar Yadav Vs. State of U.P.).

(73)The Death reference made by the trial court with respect to the

accused-appellant - Ubhan Yadav @ Abhai Kumar Yadav - is

also set aside.

(74)The accused-appellant - Ubhan Yadav @ Abhai Kumar Yadav -

is in jail. Let the accused-appellant be released forthwith unless

required in any other case.

(75)It is further directed that the appellant namely Ubhan Yadav @

Abhai Kumar Yadav shall furnish bail bond with sureties to the

satisfaction of the court concerned in terms of the provision of

Section 437-A Cr.P.C.

(76)Let the lower court record along with the present order be

transmitted to the trial court concerned for necessary information

and compliance forthwith.

(77)The party shall file computer generated copy of order downloaded

from the official website of High Court Allahabad, self attested by

it alongwith a self attested identity proof of the said person(s)

(preferably Aadhar Card) mentioning the mobile number(s) to

53

which the said Aadhar Card is linked, before the concerned

Court/Authority/Official.

(78)The concerned Court/Authority/Official shall verify the authenticity

of the computerized copy of the order from the official website of

High Court Allahabad and shall make a declaration of such

verification in writing.

(Rajeev Singh,J.) (Ramesh Sinha,J.)

Order Date :- 02.06.2021

S. Shivhare/-