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SUPREME COURT OF INDIA
A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, JJ.
LALIT KUMAR YADAV @ KURI – APPELLANT
Versus
STATE OF UTTAR PRADESH – RESPONDENTS
CRIMINAL APPEAL NO. 1022 OF 2006
Decided On : 25-04-2014
(b) Indian Evidence Act, 1872 – Section 27 – Confessional statement – Statement of accused relating to giving of information of sickle and recovery of the same – Can be taken into account to prove the truth of the incident as also statements of other witnesses which corroborated the same – Recovery of Gamchha and Baniyan satisfies mandate of section 27. (Para 26, 30)
(2004) 10 SCC 657; (2002) 2 SCC 490; AIR 2002 SC 3164 – Relied upon
(c) Criminal Trial – Sniffer dog tracking – Accused traced on basis of dog tracking – Same is not used as evidence and it cannot be admissible evidence – It was only an aid in investigation which helped complete chain of circumstances – No infirmity. (Para 31 to 34)
(1969) 2 SCC 234; (2001) 6 SCC 205; (2008) 5 SCC 697 – Relied upon
(d) Indian Penal Code, 1860 – Section 302 – Death sentence – Appellant 21 years old at the time of occurrence – Possibility of his reformation – Cannot be termed as social menace – Case not of ‘rarest of rare’ category – Death sentence not justified. (Para 47)
(1980), 2 SCC 684; (1983) 3 SCC 470; (2009) 6 SCC 498; (2010) 9 SCC 1; (2013) 5 SCC 546; (2012) 4 SCC 257 – Relied upon
(1994) 4 SCC 220 – Distinguished
Facts of the case:
Appellant was convicted u/s 376, 511 and 302 IPC for attempting to rape Kumari ‘x’ and killing her. He was sentenced variously including death penalty u/s 302.
High Court affirmed the conviction and sentence and confirmed the death reference.
Finding of the Court:
Case does not fall in ‘rarest of rare’ category.
Result: Death sentence commuted to life imprisonment.
JUDGMENT
Sudhansu Jyoti Mukhopadhaya, J. –
This appeal is directed against the impugned common judgment dated 11th August, 2006 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Capital Sentence Reference No.1 of 2005 with Criminal Appeal No.252 of 2005 from Jail and Criminal Appeal No. 384 of 2005. By the impugned common judgment the High Court while dismissed the appeal preferred by the appellant, answered the reference affirming the death sentence imposed by the Trial Court for the offence committed under Section 302 IPC for having committed murder of Km. ‘x’ (victim: original name not disclosed). The High Court also affirmed the conviction and sentence passed against the appellant under Section 376 read with Section 511 of Indian Penal Code for having made an attempt to commit rape on Km. ‘x’ aged about 18 years and sentenced him to undergo five years rigorous imprisonment thereunder.
2. Initially the appeal was heard by the Division Bench of the Allahabad High Court, Lucknow Bench and after conclusion of the arguments the Hon’ble Judges pronounced their judgments but had a divided opinion; one Hon’ble Judge affirmed the order of conviction and sentence recorded by the Trial Court and the other Hon’ble Judge reversed the whole judgment and the order of the Trial Court and out rightly acquitted the accused-appellant on both the counts. Therefore, the case was referred under Section 392 Cr.PC to a third Judge who after hearing the parties and on appreciation of evidence by the impugned judgment dated 11th August, 2006 dismissed the appeals preferred by the appellant and another on his behalf. The judgment rendered by the Trial Court has been upheld and the reference was answered confirming the penalty of death sentence.
3. Learned counsel appearing for the appellant, inter alia, made following submissions in assailing the judgment under appeal:
(i) `The prosecution has failed to produce any witness to prove the very factum of the registration of the FIR. Irrespective of the same it is ante-timed.
(ii) Ram Chandra Chauarasiya (PW-1) is a highly interested witness and has entered into the witness box only for the purpose of achieving the conviction of the appellant. The statement of PW-1 is not corroborated by any one even though witnesses were available for the same.
(iii) Sriram (PW-9), who was produced to prove recovery memo is not an independent but an interested witness who is the son-in-law of brother of PW-1.
(iv) The ‘polythene’ bag in which the ‘sickle’ was wrapped was taken by the Investigating Officer without any seal from the site of recovery.
(v) The alleged recovery of clothes ‘Baniyan and towel’ do not satisfy the mandate of Section 27 of the Indian Evidence Act. Therefore, the result of chemical examiner is of no value to prove the charge.
(vi) Identification by sniffer dog cannot be taken as evidence for the purpose of establishing guilt of the appellant.
4. Before we proceed to discuss the merits of the above contentions, it is desirable to notice the case of the prosecution and evidence on record as recapitulated below:
5. On 23.2.2004, Ram Chandra Chaurasiya (PW-1) and his wife Vidyawati residents of village Gogulpur, Police Station Satrikh, District Barabanki had gone to their agricultural field. When they returned to their house at 2.30 p.m., they were informed by their daughter Guddi that their another daughter Km.‘x’ had gone to beckon them at 1.30 p.m., as on that day, Govind, the son of Ram Chandra Chaurasiya’s sala (brother-in-law) had come to their house, his two daughters thought it proper to inform their parents and it was in this background that Km. ‘x’ had gone to inform and summon her parents. All the family members had a long wait for Km.‘x’ to return but when she did not come back up to 4.00p.m., Ram Chandra Chaurasiya (PW-1) and Vidyawati both being worried left in search of their daughter. When they were going through the agricultural fields, they were shocked to see their daughter
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