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IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, RAJEEV SINGH, JJ.
Ubhan Yadav @ Abhai Kumar Yadav –Appellant
Versus
State of U.P. – Respondent
Capital Sentence No. 6 of 2014, Criminal Appeal No. 1202 of 2014
Decided on : 02-06-2021
Criminal Procedure Code, 1973 – Section 366, Section 374 – Appeal against conviction – Rape and Murder - 12 years old girl has been sexually assaulted and done to death by throttling - whether it was the accused-appellant who has committed the alleged crime - Whether prosecution proved case beyond all reasonable doubt – Doubts of accused on Preponderance of probability - Body was found under black berry (Jamun) tree ,visible signs of injury found on the neck on the body and some nail scratches 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.
Finding of the Court:
Evident from the postmortem report that no ante-mortem injury was found on the genital 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 -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 the manner in which the prosecution want the Court to believe it had happened.
JUDGMENT :
(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.
(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 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 antemortem 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
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