Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 338

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Upendra - Appellant
Versus
State of U.P. - Respondent
Capital Cases No. 4 of 2020 With Reference No.3 of 2020
Decided On : 16-03-2022

Advocates Appeared:
For the Appellant : From Jail, Abhay Raj Yadav, Dinesh Kumar, Rakesh Prasad.
For the Respondent: A.G.A.

Point of Law: Ocular account rendered by PW-3 and PW-4 not worthy of acceptance to hold the appellant guilty and there is no forensic evidence to link the appellant with the crime, we have no hesitation in holding that the prosecution has failed to prove the charges against the appellant beyond reasonable doubt. Therefore, the benefit of doubt must go to the accused.

Headnote:
Indian Penal Code, 1860 - Sections 302 and 376 – Appeal against Conviction – Offence of Murder - PW-1 alleged that his wife (victim) at about 2 pm, went to the field to harvest mustard crop - When she did not return, PW-1 went in search of her. During search for the victim, PW-3 (a lady) informed PW-1 that she saw two men taking the victim into the field of X. On receipt of information when the field of X was scanned, at about 4.00 pm, in between standing sugarcane crop of X, the victim was found lying dead with clothes torn. By alleging that PW-4 had informed the informant of having seen the appellant with another man running away, FIR was lodged against appellant and one unknown person – whether the FIR was lodged at the time it is purported to have been lodged. But, PW-1 is an aged person, husband of the deceased, may be in a state of shock he did not collect the copy and may be his statement with regard to inquest being conducted at 4.00 pm was an inadvertent error due to fading memory or confusion -(Para 27).
Finding of the Court:
Investigation has not been up to the mark. Notably, from the statement of PW-4, it appears, a trouser and shoes were noticed near the body at the spot. But, surprisingly, there is no seizure of them. Most importantly, blood and other biological material was not collected from the accused for DNA profiling as per the requirement of section 53-A CrPC. It is difficult to accept that if the accused appellant had committed rape and had left his trouser on the spot, there would be no material available for DNA profiling. This raises a question regarding the bona fides of the investigation. More so, when the initial report was with regard to the involvement of two persons. Further, rape of an aged woman, who is a stranger to the accused, baffles us. It was therefore a case where the investigating agency ought to have been diligent and circumspect because of the fundamental principle of criminal jurisprudence that fouler the crime stricter the proof. But, here, in the age of scientific advancement, the investigation was anything but scientific.
Result: Appeal is allowed.

JUDGMENT :

Manoj Misra, J.

1. This appeal from jail by appellant questions the judgment and order of conviction and punishment dated 24.01.2020 and 28.01.2020, respectively, passed by Additional District & Sessions Judge/Fast Track Court No.1, Amroha in Sessions Trial No. 196 of 2017, convicting the appellant under Sections 302 and 376 I.P.C. and punishing him with death penalty and fine of Rs. 50,000/- under Section 302 I.P.C. and imprisonment for life and fine of Rs. 50,000/-, coupled with a default sentence of one year additional imprisonment, under Section 376 IPC. As death penalty has been awarded, the court below has sent a reference for confirmation of death penalty which has been registered as Reference No. 3 of 2020.

2. Considering the nature of the offence, the name of the victim, members of her family and witnesses of that village has not been disclosed and therefore, wherever required, they have been described either by an alphabet or witness number.

INTRODUCTORY FACTS

3. (i) The prosecution case has its genesis in a written report dated 24.02.2017 (Exb. Ka-1), lodged by PW-1 (husband of the victim), scribed by PW-2 (nephew of PW-1), which was registered as Case Crime No. 170 of 2017 at P.S. Nawgawa Sadar, District Jyotibaphule Nagar at 17.35 hrs on 24.02.2017 of which the Chik FIR (Exb Ka-7) was proved by PW-7 (Santosh Kumar Singh). In the FIR, PW-1 alleged that his wife (victim), on 24.02.2017, at about 2 pm, went to the field to harvest mustard crop. When she did not return, PW-1 went in search of her. During search for the victim, PW-3 (a lady) informed PW-1 that she saw two men taking the victim into the field of X. On receipt of information when the field of X was scanned, at about 4.00 pm, in between standing sugarcane crop of X, the victim was found lying dead with clothes torn. By alleging that PW-4 (grandson of PW-1) had informed the informant of having seen the appellant with another man running away, FIR was lodged against the appellant and one unknown person.

(ii) By about 9 pm on 24.02.2017, inquest proceedings were completed and an inquest report (Exb. Ka-9) was prepared by Veerpal Singh (PW-8) of which PW-2 and PW-4, amongst others, are witnesses. The inquest report notices that the body was of an old lady aged about 75 years and it had no lower wear.

(iii) On 25.02.2017, at 12:10 pm, autopsy of the body was conducted by Dr. Deepak Verma (PW-6). The autopsy report (Exb. Ka-2), inter alia, notices:-

(a) Rigor mortis all over the body;

(b) Ante-mortem injuries:-

(1) Contusion size 10 x 8 cm present on right side of face and temporal region;

(2) Ligature mark size 26 x 1.5 cm present on both side of neck, 4 cm below from left ear pinna and 2 cm below from right ear pinna, 4 cm below from chin;

(3) Multiple abraded contusion involving an area 16 x 12 cm both side of neck till both medial ends of clavicle;

(4) Abrasion size 5 x 4 cm present on left side of mandible;

(5) Multiple small abrasions present on both side of upper chest in area 22 x 11 cm, largest 1 x .2 cm and smallest .5 x .1 cm;

(6) Abrasion sized .2 x .1 cm present on dorsal aspect of right thumb; and

(7) Bleeding from mouth present.

(1) Hyoid Bone found fracture;

(2) 500 ml semi-digested food in the stomach;

(3) Semi-digested food in the small intestine;

(4) Faecal matter in the large intestine; and

(5) Genital organ: abrasions present on left inner wall of vagina.

(d) Cause & Manner of death: Asphyxia, due to strangulation.

(e) Estimated time of death: Between one-half and a day before.

(iv) On 26.02.2017, the appellant was arrested and a Baniyan (vest) is stated to be recovered at his instance from below a Tree standing in a vacant field. The recovery is witnessed by PW-5. The recovery memo (Exb. Ka-4) records that the accused pointed towards semen mark on the vest which was encircled by a red pen for forensic examination. It be noted that from the record it appears that the appellant was medically examined on 26.02.2017 which revealed