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IN THE HIGH COURT OF ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Bal Govind Alias Govinda - Appellant
Versus
State of U.P. - Respondent
Capital Cases No. 5 of 2021
Decided On : 18-11-2021
Indian Penal Code, 1860 - Sections 302, 376 AB, 201, 363 - Protection of Children from Sexual Offences Act, 2012 - Section 5/6 - Criminal Procedure Code, 1973 - Section 366, 313 and 437-A - Criminal Trial - Offence of Murder - Death penalty - Last seen theory - Circumstantial evidence - Appeal against conviction - Alleged that informant's daughter (deceased) was enticed away by a resident of district, who stays in his Sasural (in-laws place) at village - Informant and his family members were searching for Reshmi but she could not be found and that upon information that body of a girl has been found in a Maize field of Munni Lal son of Niranjan, informant went to spot, with fellow villagers, and found body of his daughter (deceased) - Whether prosecution is successful in its endeavour of proving appellant guilty.
Finding of the Court: Itself is not sufficient to record conviction; there is nothing on record to show that anyone had noticed the accused-appellant leaving village in night of incident or soon thereafter; it has not been shown that the accused-appellant had evaded arrest raids or summons or warrants and that coercive processes had to be issued to secure his arrest; and, fourthly, the appellant was arrested from his own house in district, where his presence was natural. Thus, in absence of any clinching evidence that he was seen in the night leaving the place from where body was recovered or seen running away from village soon after the alleged crime, merely because the accused-appellant was arrested on next day from his own village is not a determinative factor from which we may infer that the accused-appellant held a guilty mind - Prosecution evidence may, at best, give rise to a suspicion against the appellant but fails to prove the circumstances of a conclusive nature and tendency from which we may, with certitude, hold that the accused has committed the crime - The realm of "may be true" to plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof - Prosecution has failed to prove the charges for which the accused-appellant - Judgment and order of trial court is set aside. Hence, appellant is acquitted of all the charges for which he has been tried and convicted.
Result: Appeal allowed.
JUDGMENT :
Manoj Misra, J.
1. The appellant – Bal Govind alias Govinda was tried in Special Sessions Trial No. 198 of 2020 and by the order of Special Judge, Pocso Act /Additional District & Sessions Judge, Jaunpur dated 06.03.2021 has been convicted under Sections 302, 376 AB, 201, 363 of the Indian Penal Code (for short IPC) and under Section 5/6 of Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act) and, by order dated 08.03.2021, awarded punishment as follows:
(i) Death sentence for offence punishable under Section 302 I.P.C;
(ii) Death sentence for offence punishable under Section 5/6 Pocso Act (as amended by Act No.25 of 2019);
(iii) Seven years R.I. and Rs. 5,000/- fine for offence punishable under Section 363 I.P.C. with a default sentence of one year;
(iv) Seven years R.I. and Rs. 5,000/- fine for offence punishable under Section 201 I.P.C. with a default sentence of one year.
All sentences to run concurrently.
2. As death sentence was awarded, a reference (i.e. Reference No.4 of 2021) was made to the High Court under Section 366 Cr.P.C. for confirmation of death penalty. The appellant, who is in jail, expressing his inability to engage a counsel of his choice, requested for submission of his appeal against the order of conviction and sentence. As a result, the Superintendent District Jail, Jaunpur wrote a letter to the Secretary Legal Services Authority, Jaunpur to present a Jail appeal on behalf of the appellant. In furtherance whereof, the Secretary, Legal Services Committee, High Court Allahabad, by letter dated March 20, 2021, after examining the claim of the appellant that he was not in a position to engage a counsel to submit his appeal, appointed Sri Vinayak Mithal Advocate from the panel as a counsel to represent the appellant and submit appeal and submissions on behalf of the appellant before the High Court. Whereafter, this appeal against the aforesaid judgment and order of conviction and sentence was reported and registered as Capital Cases No.5 of 2021, and admitted, on 05.07.2021, for hearing.
INTRODUCTORY FACTS
3. (i) The prosecution case was instituted on a thumb marked written application i.e. Exb. Kha-1, dated 08.08.2020, submitted by Kolai @ Bakey Lal i.e. the father of the deceased, which was registered as first information report (for short FIR) (Exb. Ka-3) on 08.08.2020, at 10:30 hrs, at Police Station (for short P.S.) Madhiyahun, District Jaunpur; the Chik FIR reflects the name of the place of occurrence as village Kumbh about 8 km away from the police station. In the FIR, it is alleged: (i) that informant's daughter Reshmi Saroj (the deceased), aged 11-12 years, was enticed away by Musahar Balgovind @ Govinda, a resident of district Chandauli, who stays in his Sasural (in-laws place) at village Kumbh, and Nandu Musahar, a resident of village Kumbh, district Jaunpur, on 06.08.2020 at about 8.00 p.m; (ii) that the informant and his family members were searching for Reshmi but she could not be found; and (iii) that on 08.08.2020, upon information that body of a girl has been found in a Maize field of Munni Lal son of Niranjan, the informant went to the spot, with fellow villagers, and found the body of his daughter (Reshmi). The FIR was registered for offences punishable under Sections 363, 302 and 201 I.P.C. against the appellant and Nandu Musahar. The inquest proceeding as per the record commenced on 08.08.2020 at about 16.30 hrs and completed by 19.00 hrs. Inquest report (Exb. Ka-1) was prepared by Ramdavar Yadav (PW-7). Inquest witnesses were Kolai Saroj (informant); Sonu Saroj; Sushil Saroj (PW-3); Pradeep Kumar (PW4); and Ramakant Saroj. In the inquest report it was observed that the body of the deceased had a blue colour Kurti and a torn dirty white colour undergarment. The body and the clothes were sealed and sent for post-mortem / forensic examination. Sample of bloodstained earth and plain earth from where the body was recovered was taken and a memo was prepared on 08.08.20
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