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2021 Supreme(All) 1210
IN THE HIGH COURT OF ALLAHABAD
Manoj Misra, Sameer Jain, JJ.
Nazil – Appellant
Versus
State of U.P. – Respondent
Capital Cases No. 1 of 2020 Connected With Reference No.1 of 2020
Decided On : 17-12-2021
Advocate Appeared:
For the Appellant : Sadaful Islam Jafri, Nasira Adil, Nazrul Islam Jafri, (Senior Adv.)
Point of Law: It is well settled that an explanation under section 313 CrPC, though not evidence, has to be considered by the court and if it fits in the scheme and nature of the prosecution evidence and serves as a material to create reasonable doubt in the prosecution case, it may well be accepted.
Headnote:
Indian Penal Code, 1860 - Sections 363, 376-AB, 302 - Protection of Children from Sexual Offences Act - Section 6 - Code of Criminal Procedure, 1973 – Sections 366, 313 and 437-A – Kidnapped - Offence of Rape and Murder - Death penalty - Reference sent by trial court to confirm death penalty - Whether prosecution has been able to prove circumstance of recovery beyond reasonable doubt - A missing report was lodged by PW-1 which was registered as Case Crime wherein it was alleged that his daughter-deceased), aged 6 years, wearing Firozi (dark blue) coloured knickers, had gone from her house to fetch curd but did not return and, despite hectic search, could not be found - PW-1 gave a written report to police stating therein that on receipt of information that in Colony, in a semi-built house, a body has been found, he reached the spot and from the slippers (C happals), lying close to the body, and the clothes covering the body, he could identify body as that of his daughter.
Finding of the court:
Notably, recovery of strands of hair and the bottle of oil is alleged to have been made from same semi-built house from where body of deceased was recovered - A recovery to be completely farce. Here also, it is completely unacceptable that the I.O. would not have scanned place to search for incriminating material. Moreover, hair strands lying for 50 days on a floor of a vacant semi built house which has access to all and sundry and, that too, where inquest proceeding has taken place, is highly improbable, if not impossible - Court observe that unfortunately the trial court has failed to test the reliability and credibility of prosecution evidence and has accepted prosecution evidence as gospel truth, which is not the requirement of law. For a proper decision in a trial, the prosecution evidence, if admissible, has to be tested on broad probabilities emerging from facts of a case to find out whether it is reliable. Only after evidence is tested and found reliable, that it can form the basis of conviction - Prosecution evidence has failed to prove incriminating circumstances of deceased being last seen alive with the appellant and the recovery beyond the pale of doubt, and there is no medical/forensic evidence to demonstrate that there was presence of semen or blood stain of the appellant on the clothes of the deceased or on her body. Importantly, all orifices and organs of body were missing hence, except for confessional statement which, being made before police, was not admissible, there was no evidence to come to the conclusion that an offence of rape was committed. As all these incriminating circumstances from which the prosecution sought to prove its case against the appellant have not been proved beyond the pale of doubt, the appellant is entitled to be acquitted.
Result: Appeal of allowed
JUDGMENT :
Manoj Misra, J.
1. The appellant Nazil son of Nazim has been convicted by the court of Additional Sessions Judge, Fast Track Court (Crime against Women) /Special Judge, Protection of Children from Sexual Offences Act (Pocso Act), Rampur for offences punishable under Sections 363, 376-AB, 302 Indian Penal Code (IPC) and Section 6 of the Pocso Act, vide judgment dated 13.12.2019 passed in Special Case No.351 of 2019; and, by order dated 18.12.2019, has been awarded following punishment:
(i) Under Section 363 IPC, seven years rigorous imprisonment and fine of Rs.5,000/- with a default sentence of two months;
(ii) Under Section 376-AB IPC, capital punishment;
(iii) Under Section 302 IPC, capital punishment and fine of Rs.20,000/- with a default sentence of three months;
It be noted that as for the offence punishable under Section 6 of the Pocso Act, on the date of the incident, the maximum punishment was less than one prescribed for an offence punishable under Section 376-AB IPC, the appellant has been awarded punishment under Section 376-AB IPC, as disclosed above. Aggrieved by the judgment and order of conviction, the appellant has filed this appeal with a prayer that the order of conviction and sentence passed by the court below be set aside. In addition thereto, the trial court has sent a reference, namely, reference no.1 of 2020, under section 366 of the Code of Criminal Procedure, 1973 (for short Code or CrPC), for confirmation of the capital punishment i.e. death penalty.
INTRODUCTORY FACTS IN A CHRONOLOGICAL ORDER
2. (i) On 08.05.2019, at about 14.29 hours, a missing report (Ex. Ka-1) was lodged by Sharif Khan (PW-1), which was registered as Case Crime No.367 of 2019 at P.S. Civil Lines, District Rampur (Ex. Ka-6), wherein it was alleged that his daughter Zoya (the deceased), aged 6 years, on 07.05.2019, at 12.30 hours, wearing Firozi (dark blue) coloured knickers, had gone from her house to fetch curd but did not return and, despite hectic search, could not be found.
(ii) On 22.06.2019, at about 19.07 hrs PW-1 gave a written report (Ex. Ka-2) to the police stating therein that on receipt of information on 22.06.2019 that in Kashiram Colony, in a semi-built house, a body has been found, he reached the spot and from the slippers (Chappals), lying close to the body, and the clothes covering the body, he could identify the body as that of his daughter Zoya. Of this report there is G.D. Entry No.071, dated 22.06.2019, at 19.07 hrs (Ex. Ka-15).
It be noted that neither in the missing report (Ex. Ka-6) nor in the written report (Ex. Ka-2) any suspect is named.
(iii) After receipt of information with regard to discovery of a body, on 22.06.2019 inquest proceeding is carried out at the spot i.e. where the body was found, and completed by about 20.35 hours by Sub-Inspector Rohit Yadav (PW-6), who also prepares the inquest report (Ex. Ka-8). Inquest witness are: (a) Sharif (PW-1); (b) Aazam;
(c) Junaid; (d) Farid; and (e) Rameshwar Prasad. The contents of inquest report reflects that the body was reduced to a skeleton; flesh had melted; hair had got detached from the skull and were lying near the head; the body had an upper garment (vest/Baniyan), dirty in color; and a dirty Jamuni (a shade of dark blue) colored lower garment (knickers). No external injury could be noticed, however, an autopsy was recommended.
(iv) At 21.10 hrs of 22.06.2019 the appellant (Nazil) is arrested after an encounter of which arrest memo (Ex. Ka-17) is prepared disclosing that he was arrested by S.I. Rohit Yadav (PW-6) and kept at District Hospital, Rampur. Importantly, no GD Entry of the arrest is made in the night of 22.06.2019. The GD Entry No.09 in respect thereof is dated 23.06.2019 at 06.18 hrs (Ex. Ka-16).
(v) At 10.22 pm i.e. 22.10 hrs of 22.06.2019, the medical examination of the appellant is held at District Hospital, Rampur. The medical examination report is part of paper no.16 Kha/29 and is part of the paper book at page 19 thereof, though not ex
