The prosecution must establish guilt beyond reasonable doubt, and mere circumstantial evidence or suspicion is insufficient for conviction.

ORDER :

SANJAY KAROL, J.

1. The present appeal arises from the final judgment and order dated 26th July, 2005 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.4911 of 2004 & Reference No.15, which confirmed the judgment and order dated 21st September, 2004 passed by the Additional Sessions Judge, Fast Track Court No.16, Bulandshahar, in Sessions Case No.306/2004 whereby the accused-appellant, Sanjay, was convicted under Section 302 and 376(2)(G) of the Indian Penal Code (hereinafter ‘IPC’) and sentenced to death. The incident in question relates to the alleged rape and murder of a four-year-old girl child.

Prosecution Case

2. The prosecution case emerging from the record, as also set out by the Courts below, is as under :

2.1 On 22nd April, 2004, Sanjay (hereinafter referred to as the accused) accompanied the complainant’s daughter, aged 4 years (hereinafter referred to as ‘X’) and her paternal aunt, Rajkumari, to the marriage of one Naresh. It was part of seven combined marriages taking place at the same hall. After some time, the accused informed Rajkumari that he was taking ‘X’ home. However, ‘X’ did not reach home. On query the accused informed that he had left her at the marriage hall itself.

2.2 Later, on 28th August, 2004, on questioning, the accused confessed to having left the body of ‘X’ in the sugarcane field after committing rape and murder. Upon discovery of the dead body, the complainant lodged an FIR being Criminal Case No.36/2004, P.S. Jahangirabad on 28.02.2004 at 5:45 PM under Sections 376, 302 and 201 IPC.

2.3 S.I. Jai Ram Yadav commenced investigation of the incident, before whom also the accused confessed his guilt and got recovered specific articles from the spot where he had disposed of the body of the deceased.

2.4 With the completion of investigation, the challan was presented in the Court for trial, where the prosecution examined eight witnesses and marked Exhibits Ka 1 to Ka 17. The defence did not adduce any oral evidence.

The reasoning of the Courts below

3. The Trial Court, after elaborate consideration, vide judgment and order dated 20th September, 2004, convicted the accused under Section 376, 302 and 201 of the IPC. The Court gave the following findings:

a. On consideration of the testimonies of PW1 and PW5, the identity of the body recovered, being ‘X’, was not in doubt.

b. Given the testimonies of PW1 and PW2, the confessional statement of the accused stood proved, leading to the conclusion that it was he who had killed the deceased by strangulation.

c. Recoveries of articles related to the crime, made at the behest of the accused, are admissible under S.27 of the Indian Evidence Act as proven through PW1, PW2 and PW8.

d. PW3, PW6 and PW7 prove that ‘X’ was last seen with the accused.

e. The chain of circumstantial evidence is complete against the accused.

f. Given the nature of crime committed on the deceased child, the death sentence is appropriate to be awarded.

4. The accused-appellant preferred an appeal before the High Court of Judicature at Allahabad, which was numbered as Criminal Appeal No.4911 of 2004. A reference for confirmation of the death sentence was also submitted to the High Court, which came to be numbered as Reference No.15 in consonance with Section 366 of the Code of Criminal Procedure, 1973. Vide the impugned judgment and order dated 26th July, 2005, the High Court confirmed the conviction and death sentence awarded to the accused, giving the following findings:

a. The evidence on record shows that the dead body was recovered on the pointing out of the accused and identified by PW1, the father of the deceased.

b. After considering the testimonies of PW1, PW2, PW3, PW6, and PW7, the circumstances of the last sight of the deceased with the accused stood established.

c. The confession made by the accused stood proved by cogent evidence. The recovery of the dead body, frock, and underwear on the pointing out of the accused corroborated the extra-judicial confession, w