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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Manoj Misra, Sameer Jain, JJ.
Virendra Baghel - Appellant
Vs.
State of U.P. - Respondent
Capital Cases No. - 15 of 2021, Reference No. 12 of 2021
Decided On : 08-07-2022
Indian Penal Code, 1860 – Section 302, 201, 363, 376AB – Criminal Procedure Code, 1973 – Section 313, 53A, 437-A – Indian Evidence Act, 1872 – Section 25, 106 – Protection of Children from Sexual Offences Act, 2012 – Section 3, 4, 5(m)/6 – Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – 3(2)(V), Punishment for rape – Punishment for kidnapping – Causing disappearance of evidence of an offence committed – Punishment for murder – Power to examine the accused – Bail to require accused to appear before next appellate Court – Appellant has also submitted his appeal from jail against aforesaid judgment and order, which has been forwarded by Superintendent (Jail), Firozabad vide letter – Same has been registered as Capital Case – Appellant has prayed that judgment and order of conviction and sentence recorded by trial court be set aside and that he be acquitted of charges – Held, It is clear that before shifting burden upon accused to furnish explanation of incriminating circumstances appearing against him, it is necessary for prosecution to prove its case beyond reasonable doubt – Present case prosecution has failed to prove beyond reasonable doubt that deceased was last seen alive with accused-appellant and that recoveries were made at instance of appellant therefore, burden could not have been placed upon appellant to explain those circumstances – Thus, in our view, court below wrongly took aid of provisions of Section 106 of Evidence Act to convict appellant – Appeal allowed.
JUDGMENT :
Sameer Jain, J.
1. The appellant (Virendra Baghel) has been convicted under Section 302, 201, 363, 376AB IPC and 3(2)(V) SC/ST Act vide judgment and order dated 17.09.2021/18.09.2021 passed by Additional District and Sessions Judge/ Additional Special Judge, POCSO Act Court No.1, Firozabad in P.S.T. No. 1730 of 2019 (State of U.P. Vs. Virendra Baghel) and has been awarded following punishment:-
(ii) 7 years R.I. with fine of Rs. 5,000/- and in default one month additional imprisonment under Section 201 IPC and 363 IPC
2. As for offences punishable under Section 302, 376 AB IPC, read with Section 3(2)(V) SC/ST Act, capital sentence has been awarded, the court below has sent a reference for confirmation of death penalty, which has been registered as Reference No. 12 of 2021..
3. The appellant has also submitted his appeal from jail against the aforesaid judgment and order, which has been forwarded by the Superintendent (Jail), Firozabad vide letter dated 23.09.2021. The same has been registered as Capital Case No. 15 of 2021. The appellant has prayed that the judgment and order of conviction and sentence recorded by the trial court be set aside and that he be acquitted of the charges.
4. To represent the appellant, who could not engage a private counsel, Sri Dilip Kumar, learned Senior Counsel, was appointed as Amicus Curiae.
5. Considering the nature of the crime, we are not disclosing the name of the victim, members of her family as well of the witnesses of that area (locality) and, therefore, wherever required, they have been described by their witness number.
Introductory facts
6. The prosecution story in a nutshell is that an FIR was lodged by PW-1 on 26.04.2019, at about 6.10 hours at Police Station Linepar, District Firozabad, under Section 363 IPC, against unknown person, which was registered as Case Crime No. 61 of 2019. As per the FIR, on 25.04.2019, at about 11.00 AM, the deceased (i.e. daughter of the informant-PW-1), aged about 11 years, had gone missing. The FIR neither named any suspect nor disclosed where the girl could have gone yet, without any basis it was registered under Section 363 IPC.
7. On 26.04.2019, at about 13.16 hours, an information is received by Police Station Basaipur Mohamadpur, Firozabad that dead body of a lady is lying in Gram Sofipur behind the shop of Barashree in a burnt condition. This information is entered as G.D. Entry No. 20 at 13.16 hours on 26.04.2019 whereafter S.I. Sahab Singh (PW-10) arrived at the spot and prepared the inquest report (Ext. Ka-13), by about 16.30 hours. By the time the inquest report was prepared, the identity of the body could not be established. Therefore, inquest proceeding was conducted in respect of an unknown body of a girl aged about 13 years.
8. On 27.04.2019 family members of the deceased identified the dead body as to connect it with the missing girl referred to in Case Crime No. 61 of 2019 (supra).
9. The autopsy of the body was conducted on 27.04.2019 at about 3.30 PM. As per autopsy report (Ext. Ka-4) the body was in a decomposed condition, rigor mortis had passed all over the body and the skin had peeled off at places. The autopsy surgeon found following ante mortem injuries:-
2. Fracture right radious and ulna lower part, right palm missing, skin and muscle absent, bone exposed of whole right upper limb
3. Depressed fracture of left tempo parietal, skin absent, bone exposed.
4. Contusion 8cm X 4cm upper part of chest, right of midlime
5. Abraded contusion 18cm X 3cm on back of chest
Note:- Skin and muscle missing at places (face, scalp, right upper limb).
Genital Organs (vagina) found lacerated. Uterus was non gravid. Vaginal smear slide was prepared and sent for examination.
10. As per autopsy report, death occurred about two days before due to shock and haemorrhage as a result of 4 of 45 ante mortem inj
The sufficiency of circumstantial evidence and the last seen theory to establish guilt beyond reasonable doubt.
In criminal cases relying on circumstantial evidence, the prosecution must establish a complete chain of circumstances beyond reasonable doubt, leaving no room for alternative hypotheses of innocence....
Point of Law : Contradictory statements regarding extra judicial confession made by the accused/appellant, we are of the view that such type of extra judicial confession has no such value in the eye ....
The sufficiency of circumstantial evidence and the need for a complete chain of evidence to establish guilt beyond reasonable doubt.
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