Babaloo @ Raj Kumar Maurya vs State Of U.P.

Hon'ble Mrs. Sunita Agarwal,J.

(Delivered by Hon'ble Sunita Agarwal,J.) Heard Shri Brijesh Sahai, learned Amicus Curiae appearing on behalf of the appellant and learned A.G.A.

The present appeal has been filed challenging the judgement and order dated 30.11.2007 passed by the Additional Sessions Judge/Special Judge(E.C. Act) Basti, in S.T. No. 169 of 2007 whereby the appellant is convicted for death under section 302 I.P.C. along with fine of Rs. 500/-.He was sentenced under section 376 I.P.C. to undergo rigorous imprisonment for life and fine of Rs. 1000/- In the event of default, appellant has to undergo one year each of simple imprisonment in addition to the sentences awarded for the offences under Sections 302 and 376 I.P.C.. Both the sentences are to run concurrently. Reference No. 1 of 2010 under section 366 Cr.P.C. has also been sent by the trial court for confirmation of death sentence.

Brief facts of the case are that a First Information Report was lodged on 8.12.2006 at about 6.30 P.M. at police station Walterganj, Tehasil Sadar, District Basti by one Sneh Prakash Shukla against unknown person. It was stated therein that the niece of informant Sneh Prakash Shukla aged about 17 years had left her home at about 6 a.m. on 8.12.2006 for tuition . It was mentioned in the written report that deceased Priti Shukla daughter of Arun Kumar Shukla was a student of class X. She used to go daily for tuition in the morning to Sahadev Master in village Belahara and then to village Mahadev for another tuition. After tuitions, she used to go to the school. As usual on 8.2.2006, she left her house in the morning but did not return back after tuitions at which his younger brother Arun Kumar Shukla and other villagers went to search for Priti. After extensive search they could find the dead body of Priti in the sugarcane field of one Shri Kant Pandey of Gram Naveda. It was stated in the written report that from the condition of the dead body, it appeared that Priti was raped and murdered by unknown persons. Her bicycle was found near the dead body lying in the cane field. The postmortem of the victim was conducted on 9.12.2006 at about 3 P.M. by Dr. S.P. Chaudhary. The following antemortem injuries were found on the body of the deceased.

1- dVk gqvk ?kko 5-00 lseh0x2-00 lseh0 ftldh xgjkbZ gMMh rd Fkh ,ao ck;sa rjQ xky ls dku rd dVk gqvk ?kko ekStwn FkkA 2- pkj dVs gq, ?kko] ck;sa rjQ psgjs ij ekStwn Fks ftldh lkbZt 1-00 lseh0 x 0-5 [email protected] dh xgjkbZ x - ely Mhi ls 1&5 lseh0 x. 0-5 [email protected] dh xgjkbZ rd tks pksV ua01 ds rqjUr fo|eku FksA 3- eqag ds pkjks rjQ Åij uhps ds gksM BqMMh ,ao ukd ij cgqr lkjs [kjksap ds fu'kku ekStwn FksA 4- Åij ,ao uhps ds gksaM ds vUnj rjQ 0-5lseh0 x 0-5 lseh0 uhyxw fu'kku ekStwn FksA 5- dVk gqvk ?kko] gkFk dh nk;ha dykbZ ds lkeus okys Hkkx ij 3-00 lseh0 x 1-5 lseh0 x.gMMh dh xjkbZ rd VSVSbax iztssaV FksA 6- nkfgus gkFk dh dykbZ ij dVk gqvk ?kko 2 vnn] ftldk lkbt 2-00 lseh0 x.1-00 lseh x.ekalis'kh rd xgjk ,ao 1-5 lseh0 x.0-04lseh0x. ekal is'kh rd xgjkA 7- cgqrsjs [kjk'knkj uhyxw] fu'kku] tks ck;sa vxzckgq ,ao ck;sa gkFk ij ihNs dh rjQ tks 22-00 lseh0 x. 4-00lseh0 ds {ks=Qy esa Qsyk gqvk Fkk tks 0-5 x. 0-5 lseh0 ls ysdj 3-00 lseh0 x. 2-00 lseh0 rd FkkA 8- cgqrsjs [kjk'knkj uhyxw fu'kkukr tks ck;sa gkFk ij 6-00 x. 4-00 lseh0 ds Qy {ks= esa tks 0-5 lseh0 x. 0-5 lseh0 0-5 lseh0 x. 1-00 lseh0 rdA 9- cgqrsjs [kjk'knkj uhyxw fu'kkukr tks ck;sa LdSiqyk ij 12-00 lseh0 x. 8-00lseh0 ls 2-00 lseh0 x. 0-5 lseh0 ds lkbt dk FkkA 10- QVk gqvk ?kkao] tuukax ds ihNs okyh nhokj ij mifLFkr Fkk ,ao [kwu ,ao /kDds ds lkFk ekStwn FkkA ftldh lkby 3-00lseh0 x. 1-00 lseh0 x. ekal is'kh rd xgjk FkkA The postmortem report further indicates certain postmortem injuries which are as under:-

1) Postmortem ligature mark all around neck size 13 CM. x 2 CM. at lower of adam's apple. Knott at right side seen.

2) Postmortem burns on the chest, lower part of the body and the legs of the deceased.

The cause of death mentioned is due to smothering leading to asphyxia.

The prosecution examined five witnesses of fact . P.W.1 Sneh Prakash Shukla, is the informant, uncle of the deceased and elder brother of P.W.2. P.W. 2 Arun Kumar Shukla is the father of the deceased. P.W. 3 Dina Nath is witness of recovery of two shirts and a plastic sack from the room at the pointing out of the appellant Bablu alias Raj Kumar Maurya. Chintaharan P.W.4 is a witness of recovery of Hasiya, Gamcha, Kurta of co-accused Bisai alias Vishwanath and hair found wrapped in the Gamcha. P.W. 5, H.C. Amarnath, has proved the check F.I.R. and G.D. entry made by him under his signature. P.W.6 Dr. V.K. Singh, proved that semen samples of appellant Bablu alias Raj Kumar Maurya and co-accused Bisai alias Vishwanath were collected in district jail Basti. P.W .7, Shobh Nath Shukla is the witness of last seen who had witnessed the appellant and co-accused Bisai alias Vishwanath together in the morning on 8.6.2012. P.W. 8 Dr. S.P. Chaudhary, postmortem doctor has proved the postmortem report. P.W.9, Dr. Yogendra Yati, proved the postmortem and stated that postmortem was done together by him and Dr. S.P. Chaudhary on 9.12.2012 at about 3 P.M. P.W. 10 Dr. Ramesh Pandey has proved the injury report of the appellant Bablu alias Raj Kumar Maurya. P.W.11 S.I,. Angad Rai is the Investigating Officer. P.W.12 Shri Brij Bhushan Yadav who was posted as Additional Chief Judicial Magistrate Court 11 at Basti on 18.12.2006 proved the statement of the accused appellant under Section 164 Cr.P.C. The statements of the appellant and co-accused Bisai alias Vishwanath under section 313 Cr.P.C. have been recorded.

D.W.1 Mandakini Shukla, mother of the deceased Priti Shukla, was produced as defence witness.

The recovery memo of bicycle, books and copies found near the dead body of the deceased were exhibited as Ka-3. The recovery memo of clothes of the deceased having blood and semen stains was exhibited as Ka-4. Exhibit Ka-5 is the recovery memo of semen and bloodstained earth which was collected from beneath the vital part of the dead body lying in the field. Exhibit Ka- 6 is the recovery memo of one bloodstained shirt and a plastic sack recovered at the pointing out of appellant Bablu alias Raj Kumar from his room. Exhibit Ka -7 is the recovery memo of blood stained Kurta of co-accused Bisai alias Vishwanath.Exhibit Ka- 8 is "Hasiya" which has been recovered concealed in a milk cane from the house of the co-accused Bisai alias Vishwanath. Exhibit Ka-9 is the bloodstained Gamcha of Bisai alias Vishwanath recovered at his pointing out,near the pond. It is mentioned in the recovery memo that Gamcha was mud stained and was found concealed in the earth near the pond. Two long hair strands wrapped in the Gamcha were also found. Exhibit Ka-15 is the semen sample of Bablu alias Rajkumar collected in the district jail under the supervision of Dr. V.K. Singh, Medical Officer, district jail Basti. Exhibit Ka-14 is the semen sample of co-accused Bisai alias Vishwanath collected in the district jail, under the supervision of Dr. V.K. Singh,Medical Officer district jail Basti. Exhibit Ka- 27 is the slippers, knife recovered concealed in 'Munj' from the place of incident at the pointing out of appellant Bablu alias Raj Kumar. The blood stained and plain earth were collected from the place of incident and exhibited as Ka 27. The injuries on the person of appellant Bablu alias Raj Kumar indicated in the injury report dated 14.2.2006 are as follows:-

1- QVk gqvk ?kko 'ko 2-00 lseh0 x. 0-2 lseh0x. Fldy Mhi] nkfgus gkFk dh gFksyh ij dykbZ ls 4-00 lseh0 uhpsaA 2- dVs gq, ?kko 1-5 lseh0 x 0-3 lseh0 ely Mhi nkfgus gkFk dh e/; maxyh ij maxyh ds Åijh fljs ls 3-5 lseh0 ÅijA 3- Qvk gqvk ?kko 1-5 lseh0 x 0-5 lseh0 x. fLdu Mhi] nkfguh rtZuh maxyh ij 1-5 lseh0 mijh fljs ls ÅijA 4- jxM+ tfur ?kko 0-5 lseh0 x. 0-2 lseh0 nkfgus vaxwBs ij gFksyh dh rjQ vaxwBs ds mijh fljs ls 4-5 lseh0 ljA 5- jxM+ tfur ?kko 0-5 lseh0 x. 0-2 lseh0 nkfguh fjax fjax fQaxj dh tM+ ij gFksyh dh rjQA 6- jxM+ tfur ?kko 0-2 lseh0 x. 0-2 lseh ck;sa psgjs ij ck;h vka/k ls 1-5 lseh0 uhpsA 7- jxM+ tfur ?kko 2-00 lseh0 x. 1-00 lseh0 ck;sa ?kqVus ijA 8- jxM+ tfur ?kko 0-5 lseh0 x. 0-2 lseh0 nkfgus ?kqVuk ijA As per opinion of the doctor , all the injuries were simple in nature. The injuries no. I and II might have been caused by a sharp object and injuries no. III, IV, V VI, VII and VIII by a hard blunt object. The duration of injuries was mentioned as about seven days old. The serologist report dated 22.2.2007 indicates that blood was found on the large portion of the Item nos. 1 to 8(clothes of the deceased which she was wearing and found from the place of incident).Blood was also found on item No 11 smear slides; item no.12 bloodstained earth; item no. 15 shirt of the appellant Bablu alias Raj Kumar; Item no. 17 plastic sack; Item no. 19 bloodstained earth recovered from the place of incident; Item no. 21 Kurta and Item no. 22 Gamcha of Bisai alias Vishwanath. No blood was found on item no. 18, the Knife recovered from the place of incident at the pointing out of the appellant Bablu alias Raj Kumar. On items no. 1 and 2 (Salwar and underwear of the deceased) blood was found disintegrated. On Items no. 11,12,17 and 22 blood was found disintegrated. Further report regarding bloodstained and plain earth of the Forensic Science Laboratory indicates that blood stained earth marked as Q-1 and plain earth marked as S1 recovered from one place were similar. The bloodstained earth Q2 and plain earth marked as S-2 collected from another place were similar.

The statement of the appellant Bablu alias Raj Kumar under Section 164 Cr.P.c. was recorded on 18.12.2006 by Shri Brij Bhushan Yadav, Additional C.J.M. Basti, court no.11. In his confessional statement, the appellant admitted that he met the victim on the road between village Jagdishpur and Naveda when she was going to school on a bicycle. He stopped Priti and threw her into a sugar cane field and there he committed rape and thereafter murdered her with the knife. After committing the crime, he threw the knife in the sugar cane field and came back to his room. When he raped Priti, she resisted and as a result of which he received abrasions on his person and she scratched him through her nails. The appellant further confessed that after committing rape, he strangulated Priti and thereafter committed her murder through knife. He expressed his remorse for committing the crime.

P.W.1 the informant stated that he came to know about the incident when he returned back from duty on 8.12.2012 at about 5 P.M.. There was a crowd in front of the house of his brother Arun Kumar Shukla and he heard people crying over there. When he reached the house of his brother,he was told that Priti did not return from the school and her body was found in the field of Shrikant in village Nevada. After getting the said information, he immediately went to the spot. He saw the dead body, bicycle, books, copies and clothes of Priti lying there. The dead body was naked and there were marks of injury on the person of the deceased. He returned back to the house of his brother and wrote the First Information Report and went to the police station to lodge the same.

The Investigating Officer came to the spot along with him and prepared the inquest of the dead body. The dead body was brought to the village in a tractor trolley by the police at around 10 P.M.. He signed the inquest report prepared in front of him and was exhibited as Ka 2. The Investigating Officer took into possession other items, namely, bicycle, books, copies, bloodstained earth, plain earth and one bloodstained underwear of the accused from the place of incident and sealed these items in three packets. He further stated that the appellant was a driver of his brother Arun Kumar Shukla and co-accused Bisai alias Vishwanath was a friend of appellant Bablu alias Raj Kumar. In his cross examination this witness stated that he had not gone to search for Priti and he came to know about the incident after he came back from duty. The body of Priti was found in the cane field by his brother Arun Kumar Shukla. The report was lodged by him after he had witnessed the place of incident. Though he had suspicion on Bablu alias Raj Kumar, however he did not disclose the name in the First Information Report on that basis.

P.W.2 Arun Kumar Shukla, father of the deceased stated that Priti used to go for tuition daily at around 6 a.m. on bicycle. First she used to go for tuition to Sahadev Master at village Belhara and thereafter she used to come back for having food at home. After that she would again go for another tuition to Sushil Kumar of Mauja Mahadev. From there, she used to go to her school, namely, Walterganj Inter College.

On the day of incident dated 8.12.2006, as usual she left home at around 6 a.m. on bicycle but did not return back for having food. His wife told him that Priti did not return home,then P.W.2 went to the place of Sushil Kumar Mishra at village Mauja Mahadev, and he was informed that Priti did not go there. Then he went to the place of Hanumant Prasad Shukla at Mauja Bangava,whose daughter informed that Priti did not reach the school on that day. Thereafter P.W.2 went to the place of Master Sahadev Prasad, who informed that Priti did not reach there. Thereafter, P.W.2 started search for Priti along with the villagers in the field near the road which goes towards her school. During the course of search, they saw the bicycle of Priti in the field of Shrikant Pandey of District Mauja Nevada. At some distance from the bicycle, the body of Priti was found in the cane field. It was naked and there were injuries on her person. Her 'Dupatta' was tied on the neck. From the dead body it could be seen that she was murdered after committing rape.

P.W. 2 further stated that at the time of search, his driver Bablu alias Raj Kumar Maurya and his brother Sneh Prakash Shukla were with him. The dead body was left by the Investigating Officer on the spot in the night after making arrangements of its safety. The inquest was prepared in the morning and recovery was made. Bisai alias Vishwanath co-accused was friend of appellant Bablu alias Raj Kumar.

P.W.2 further stated that on the date of the incident, Bablu alias Rajkumar came back to his room in the morning having cane sticks. His hand was tied with a cloth and he had covered himself with a sheet. When asked about the injury, he told that he got cut on his hand while cutting sugar cane and injuries occurred on his body by sharp edged cane leaves. He looked scared and was not able to answer properly. After the appellant was arrested, the bloodstained shirt and plastic sack was recovered from his room, at his pointing out. This witness had identified the clothes of deceased Priti in the Court.

P.W.2 further stated that as the appellant has accompanied him for search of Priti he did not suspect him. The dead body of Priti was brought on a tractor, driven by the appellant. The appellant was working for about last two years in this house. He came to know about the character of the appellant after the current incident. He further stated that her daughter went to study after sun rise. Her cycle was found in the cane field and only Dupatta was found tied on the neck of her dead body and Gamcha was found near the pond. P.W.2 stated that five-six hair strands which were found in the hands of Priti had been kept inside an envelope, and wrongly described as hair found wrapped in the Gamcha. In his cross examination, the witness has stated that his wife informed at about 9 a.m. on the fateful day that Priti did not return back home for having food. Then he started search for Priti. P.W.1 Sneh Prakash Shukla had accompanied him for search. At about 5.30 P.M., some villagers also accompanied him and they found the dead body in the sugar cane field. He denied the suggestion of defence that his claim that on the date of incident in the morning he saw Bablu alias Raj Kumar having bandage on his hand, was a tutored one. He also denied the suggestion that he was not at home when Priti left for tuition and he did not go to search for his daughter. He came to know about the incident by his brother and villagers. This witness also stated that appellant Bablu alias Rajkumar reached home at about 8 a.m. in the morning and went with him for search of Priti. He denied that appellant Raj Kumar and co-accused Bisai alias Viswanath were implicated at the instigation of his family members and villagers.

P.W.3, Dina Nath, is the witness of recovery of two shirts and one plastic sack from the room of appellant Bablu alias Raj Kumar. He stated that on 14.12.2006, the Investigating Officer came to the village with appellant Bablu alias Raj Kumar and informed that certain articles related to the incident were to be recovered. The appellant Bablu alias Raj Kumar went inside his room and handed over two shirts and a plastic sack to the police, which were blood stained. The shirts handed over by the appellant were identified by the family members of Priti that they belonged to the appellant. These three items recovered were sealed by the Investigating Officer. P.W.3 and one Ved Prakash had signed the recovery memo and appellant Bablu alias Raj Kumar put his thumb impression. This witness stated that he reached the spot of recovery after 15-20 minutes after arrival of the Investigating Officer. Several persons were present at the time of recovery. The fact that the shirt recovered belonged to appellant Bablu alias Rajkumar was informed by family members of Priti. He and informant Sneh Prakash Shukla were working in the same sugar mill.

P.W.4 Chintaharan stated that after 15-16 days of the incident, the Investigating Officer reached the village along with Bisai alias Vishwanath. He along with other villagers accompanied the Investigating Officer. The co-accused Bisai alias Vishwanath took out a 'Hasiya' from his ''Palani' (Hut) which was bloodstained and handed it over to the Investigating Officer. He told that he murdered Priti by the same. At the time of arrest, Bisai alias Vishwanath was wearing a washed 'Kurta' on which bloodstains were clearly visible. It was taken into possession by the Investigating Officer. Both the items were sealed and signed by him and other witnesses and the accused Bisai alias Vishwanath put his thumb impression on the recovery memo. The 'Gamcha' of Bisai alias Vishwanath was recovered at his pointing out from near the pond. Bloodstained long hair strands were found wrapped in it. 'Gamchha' and hair were sealed separately and recovery memos bore his signature and another witness Ved Prakash and thumb impression of Bisai.He denied that he had deposed under the influence of police or relatives of the informant .

P.W.5 H.C. Amarnath posted at P.S. Basti stated that on the basis of written report given by the informant, the check F.I.R. was prepared by him. He also made entries in the G.D. no. 34/1830 on 8-12.2006 in his own hand writing and put his signature. On 14.12.2006 G.D. entry of Rapat no. 26 was made by him.

P.W.6 Dr. V.K. Singh deposed that semen samples of both the accused were collected on 6.7.2006 under his supervision.

P.W.7, Shobh Nath Shukla is the witness of last seen. He stated that he saw accused Bablu alias Raj Kumar and Bisai alias Vishwanath at 6 a.m. together sitting near the ''Pulia' between village Bhipura and Nevada. They were looking perturbed. Priti was found murdered at a short distance from the said Pulia. This information was given by him to the Investigating Officer and to Arun Kumar Shukla. However, the investigating Officer did not mention this in his statement recorded under section 161 Cr.P.c. He further stated that appellant Bablu alias Rajkumar was arrested at the postmortem house and confessed his guilt.

P.W.8 Dr. S.P. Chaudhary, who conducted the postmortem of deceased Priti Shukla stated that the dead body was of average built of a young female. Rigor mortis was present in all the four limbs. Her eyes and mouth were closed. Her nail and lips were bruised ( Neela). The doctor has opined that death was caused by smothering leading to asphyxia. There were postmortem burn marks on the body of the deceased and also a ligature mark on the neck. The incident was a day old and could have occurred on 8.12.2006. The doctor has opined that there was possibility of death having been caused on account of injury no. 3. The cause of injury no.10 was on account of violent rape as opined by the doctor.

P.W. 8 Dr. S.P. Chaudhary further stated that no definite opinion could be formed with regard to the time of death of the victim. The opinion given by him that the death was not caused by strangulation but by smothering leading to asphyxia was based upon his observation of injury no.3 and postmortem finding. He also explained the meaning of smothering. So far as the ligature mark is concerned he categorically stated that it was caused after the death of the victim. The burn injuries were also postmortem injuries. The doctor opined that ligature mark was caused on account of tying the neck with the dupatta after the death of the victim. There was no sign of burns on the clothes of the victim. While describing the injury no. 10 the doctor stated in his cross-examination that the nature of injuries clearly indicate that it was a violent rape. There were injuries on the private parts of the deceased. The injury found on the private parts of the deceased could not be caused for any other reason as suggested by the defence.

So far as the rigor mortis is concerned, the doctor opined that it was present at the time of the postmortem. The death had occurred less than 24 hours of time. He also stated that due to the condition in which the dead body was found and the weather, rigor mortis could remain for a longer period of time and looking to the said fact he opined that the death was caused within 24 hours of the postmortem. He has gone through the books on Medical Jurisprudence before giving his opinion.

P.W. 9 Dr. Yogendra Yati, stated that he was posted as Medical Officer on 9.12.2006 .He had accompanied Dr. S.P. Chaudhary for the postmortem of dead body of Priti. The postmortem report was prepared by Dr. S.P Chaudhary with his consent and he had also signed the report. Before preparing the postmortem report each and every points were discussed by them.

P.W.10 Dr. Ramesh Pandey who has examined the injuries of the appellant stated that on 14.12.2006 he was posted as Medical Officer in P.H.C. Walterganj, district Basti.After examining the injuries of accused Babloo he opined that the injuries were seven days old. So far as injuries no. 1 and 2 were concerned, he opined that those injuries could be caused by scrambling in the sugar cane field, by the sharp edged sugar cane leaves. Rest of the injuries could be caused in case of strong resistance put by another person through friction. He further opined that injuries could have been caused on 8.2.2006 at about 7, 8 a.m.. He stated in his cross examination that he has examined the accused on the basis of 'Chitti Majrobi(letter) written by the Investigating Officer. The duration of injuries has been described as 7 days prior to the date of examination. He further stated that incised wound could occur from sugar cane leaves as those wounds were superficial. So far as the duration of injuries of Bisai alias Vishwanath was concerned he stated that injuries were two days old and were simple injuries which could be caused by any blunt object ''Kundala'.He stated that there might be variation of 4-6 hours in the duration of injuries of Bisai alias Viswanath.

P.W.11 Angad Rai, the Investigating Officer stated that when he started investigation an entry was made in the case diary. The inquest could not be done at night. On 9.12.2006, the inquest of the dead body was done on the spot. All the items found on the spot were sealed. The inquest started at about 8.15 a.m. on 9.12.2006 and was completed by 9.30 a.m. He signed the inquest report. Site plan was prepared by him on the spot. The statements of the witnesses present on the spot were recorded in the case diary. The inquires were made on 10.12.2006, 12.12.2006 and 13.12.2006 from various persons of the village and the details were entered in the case diary. On 14.12.2006, he came to know through an informer that the rape and murder of Priti was committed by Bablu alias Rajkumar and on that basis Babloo was interrogated .Babloo admitted his guilt and led the police party to his room from where the bloodstained shirts and plastic sack were recovered. Thereafter, the accused took them to the place of incident and got recovered one hidden knife and a pair of slippers of the deceased. Thereafter, the statements of mother and father of the deceased were recorded. On 16.12.2006, a report was submitted before the Court that the appellant wanted to given his statement under section 164 Cr.P.c. on which 18.12.2006 was the date fixed for recording the statement. On 15.12.2006, the details of the medical report of the accused were entered in the case diary. On 18.12.2006, the inquest and postmortem reports were entered in the case diary and the statements of witnesses of inquest were also entered. The statement of the appellant under section 164 Cr.P.c. was recorded in which he had admitted his guilt.

On 25.12.2006, on the disclosure statement of the appellant, the co-accused Bisai alias Viswanath was arrested from his house. Recovery from Bisai alias Viswanath was made thereafter. The statement of other witnesses were recorded and after getting cogent evidence against two accused, the charge sheet was submitted.

In his cross examination, Investigating Officer P.W. 11 stated that he arrested appellant Bablu alias Rajkumar on 14.12.2006. Appellant Bablu alias Rajkumar did not abscond after the incident. In fact, he helped in the search of the dead body of the deceased. During the course of investigation he got suspicious on account of injuries on the person of Bablu alias Rajkumar. He categorically denied that in order to work out the case under the pressure of his superiors he had falsely implicated Bablu alias Rajkumar by showing forged injuries on his body with the connivance of the doctor. He reiterated that he reached the spot at 6.30 p.m. on 8.12.2006 but it was dark and as such inquest could not be done on that day. The inquest was done on 9.12.2006 between 8.15 a.m. to 9.30 a.m. In column no.1 of the inquest report, time of reaching the spot has been stated at about 6.30 a.m.on 8.12.2006. He denied the suggestion that the dead body was brought to the police station in the night of the incident. In fact after the inquest in the morning, the dead body was sent to the postmortem house. The informant has not named Bablu alias Rajkumar on the basis of suspicion in his statement recorded under section 161 Cr.P.c. Bablu alias Rajkumar was living in the house of Arun Kumar. He categorically stated in the cross examination that Bablu alias Raj Kumar was not arrested at the postmortem house on the next day of the incident rather he was arrested on 14.12.2006. In his cross examination, the Investigating Officer further stated that hair found in the hands of the deceased were not sent for examination to the Forensic Science Laboratory but were deposited by him in Malkhana on 10.12.2006. As the envelope could not be found, hair could not be sent to Forensic Science Laboratory. When a question was put to him as to what happened about the hair strands found in the hands of the deceased, he stated that during investigation he tried to fetch them but it was of no avail.

P.W.12 Birj Bhushan Yadav, the then Additional C.J.M. Court no. 11, Basti, who has recorded the statement of the appellant under section 164 Cr.P.c. deposed that before recording the statement, the accused was informed and duly warned that the said statement could be used against him.The Magistrate informed that the accused was free to give his statement voluntarily and there was no pressure upon him. When the Magistrate was convinced that the appellant had given thought to what he was doing and it was a voluntary act of the appellant and further that the appellant had understood its repercussions, he proceeded to record the statement. After recording the statement, the appellant put his thumb impression. The Magistrate signed it and exhibited Ka 33. In his cross examination, the Magistrate stated that he first gave warning to the appellant and thereafter recorded his statement. The Investigating Officer produced the appellant on 15.12.2006 but as the accused was in police custody, therefore, in order to give him time to think independently and release him from the fear of the police, accused was given time and was kept in Judicial custody till 18.12.2006. He was produced from the jail and his confession under section 164 Cr.P.C. was recorded. However there was no mention of the oral warning given to the appellant on 15.12.2006 in his confessional statement. The Magistrate P.W.11 denied the suggestion that no oral warning on 15.12.2006 was given to the appellant.

The statement of the appellant under section 313 Cr.P.c. was recorded. The appellant Bablu alias Rajkumar denied that he was author of the crime. He denied every question with regard to the commission of rape and murder of Priti. However while replying to the question no.11 with regard to injuries on his person, the appellant stated that whatever injuries were received on his person were inflicted on account of 'Marpeet' by the Investigating Officer after his arrest. The question no.11 and answer to the same are quoted below iz'u&11%& mijksDr lk{kh us rqEgkjs fo:) xokgh nh gS fd ?kVuk ds fnu vfHk;qDr cCyw mQZ jktdqekj xUus dk xsM ysdj lqcg mlds ?kj vk;k Fkk rFkk mlds gkFk esa iVVh ca/kh Fkh o pknj vks mRrj %& xyr gSA tks Hkh pksV vk;h og njksxk th ds ekjus ls vk;hA ml fnu pksVs ugh FkhA ckn esa vk;h FkhA njksxk th tc idM+ dj Fkkus ij 'kke dks ys x;s Fks rc ekjs ihVs Fks rFkk pksVsa vk;h FkhA Further with regard to recovery of shirts and plastic sack from his room, questions no. '12' and '13' were put to him. He denied the recovery saying that "Galat Gowahi hai." Main Khabi nahi pakra gaya." However he did not deny that the shirt which was recovered did not belong to him. The question no.'30' was with regard to the report of the doctor dated 14.12.2006 regarding his injury. His answer was that in order to collect false evidence, a false injury report was prepared by the doctor under the pressure of the police. He was not examined on 14.12.2006. While defending himself on the question of confessional statement under section 164 Cr.P.C., the appellant in reply to question No. 37 stated that he was tortured by the Investigating Officer to give his confessional statement in the Court. The Investigating Officer had poured petrol on his buttocks and treated him in an inhuman manner and as such he was forced to confess the crime by the police.

While answering the questions no. 38 and 39 he stated that he was so scared, that he did not inform about the conduct of the Investigating Officer to the Court concerned when he confessed the crime. In fact, he was assured by the mother of deceased Priti who had gone to meet him in jail after three days of the incident that she will get him released. In reply to the questions no. 40, 41, and 42 with regard to confessional statement i.e exhibit Ka 33 the appellant reiterated that he had given statement under the threat extended by the Investigating Officer. In reply to question no.44, he stated that he was falsely implicated by his employer i.e. parents of the deceased as they had no intention to give his three months salary and about Rs. 800/- due towards them.

In reply to question no.45 :"whether he wanted to say something in his defence." He narrated a story. The story as narrated by him was that on the date of incident he was sleeping in the 'Osara' as he resided in the room out side the house of Arun Kumar Shukla. Around 2-3 a.m. in the night he woke up as he heard some noise from inside the house. He went near the door which was thrashed open and co-accused Bisai alias Vishwanath came running out. He tried to catch hold of Bisai alias Vishwanath but he ran away. Then Mandakini, mother of the deceased caught hold of the appellant from the back and forced him to enter the house. She closed the door from inside.The appellant saw the dead body of Priti lying on a cot. He got nervous and tried to run away. At that time Mandakini warned him that in case he fled she would falsely implicate him in the murder and told him to follow her. He was thereafter instructed by her to cover the dead body with a sheet. They took the dead body out from the window of the house and carried it to the sugar cane field. After leaving the dead body there, they returned back to the house through window and cleared the floor of the "Angan" of the blood with cowdung. They then again went to the spot where the dead body lay and put copies, books and slippers of Priti near it. Mandakini warned him that he should not dare to disclose about the incident to anybody. She told that they would save him. Arun Kumar gave the money to the Investigating Officer at the police station. The entire incident occurred inside the house of the deceased. Appellant was not aware of the fact whether rape was committed with Priti or not.

Shri Brijesh Sahai, learned Amicus Curiae for the appellant submits that the alleged incident was of 8.12.2006 but the time of the incident is not known. The First Information Report was lodged on 8.12.2006 at about 18.30 hours against unknown persons. The distance of the police station is 2-1/2 km. from the place of occurrence of the incident. The inquest was prepared on 9.12.2006 between 8.15 a.m. to 9.30 a.m. when the incident was reported at 18.30 hours on 8.12.2006 .The appellant was a servant in the house of the victim and resided in a room outside the house. The appellant did not abscond after the incident rather he was with P.W.2 i.e. father of the victim, when search was being conducted. The proximity and accessibility with the victim is not disputed however there is no evidence of last seen and there is no previous suspicion. The information given by the alleged informant to the Investigating Officer that the appellant was involved in the alleged crime is totally fictitious in as much as the source of information is not known . P.W. 1 in his cross examination stated that he had suspicion on the appellant but he did not name him in the First Information Report on that basis. P.W.2 stated that he saw the appellant carrying injuries on his person in the morning on the day of incident. The appellant was looking nervous and was unable to answer his queries but even then he did not suspect the appellant. The appellant was with P.W.2 throughout the day during the search for Priti and even drove the tractor and brought the dead body from the place of incident to the village.

So far as the injuries on the hands of the appellant are concerned, the appellant gave a plausible explanation that injuries were caused while chopping sugar cane. The medical report of the appellant corroborates the explanation of the appellant. The doctor who examined the injuries of the appellant also stated that the said injuries could occur by the sugar cane leaves. Learned counsel further submitted that as per statement of the Investigating Officer (P.W.11),the only basis of suspicion on the appellant was the injuries on his person. The Investigating Officer though denied that in order to work out the case he got prepared a forged injury report of the appellant, however, the appellant in reply to the question no.11 in his statement recorded under section 313 Cr.P.C. has categorically stated that the injuries on his person were inflicted on account of police brutality.

So far as the recovery of blood stained shirt and plastic sack from the room of the appellant is concerned, learned Amicus Curiae submits that the blood found on the shirt of the appellant was his blood which oozed out of the injuries received while cutting sugar cane. In the serologist report, the blood found on the bloodstained shirt and plastic sack was not tallied with the blood of the appellant.The blood group was not identified through chemical examination and as such the appellant could not be connected with the crime merely because human blood was found on his shirt.

The discovery of slipper and knife near the body of the victim is not in accordance with the provisions of Section 27 of the Evidence Act . The said items were found in an open place and the appellant cannot be said to be the author of the concealment. In order to substantiate his argument learned Amicus Curiae for the appellant relied upon the judgment of this court in Bijendra Singh Vs. State of U.P. reported in 2002 (45) ACC 324. Relying upon paragraphs 24,25 and 29 of the said judgement he vehemently submits that the position of law in relation to Section 27 of the Act is that the condition necessary to bring the section into operation is that discovery of fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved.

Learned counsel for the appellant contended that any discovery made under section 27 of the Act has to be in the exclusive knowledge of the accused and it should be demonstrated that he had volunteered the discovery. Further the article recovered was found in a concealed state and the accused was the author of the concealment. Unless and until all these four parameters are met, the recovery is not truthful and can not be said to be a recovery under section 27 of the Act. In the present case, the shirt was not found in a concealed state and the accused has not stated that he had concealed the same. The only witness close to the family was selected and the recovery is not at the disclosure statement of the accused that he had volunteered it. In view of that the recovery is not truthful but a planted one.

Further submission of the learned counsel for the appellant is that the semen sample taken from the accused was not tallied with the semen found on the ground near and also on the body of the deceased.

The trial court has wrongly disbelieved the appellant though it was contended that the prosecution has failed to connect the accused with the crime as neither blood group nor semen sample were tallied.

The date of arrest of the accused is also doubtful . It was contended that the accused was arrested on 9.12.2006 at the postmortem house as per the statement of the prosecution witness. P.W. 7 stated that when the appellant was arrested at the postmortem house, he confessed to the crime. The police did not beat him at the postmortem house however, the public slapped him after arrest. From the statement of P.W.7, it is apparent that the recovered articles on 14.12.2006 were planted by the police.

So far as the evidence of P.W.7 that he saw the appellant at about 6 P.M. on the Pullia, near the place of incident along with the co-accused. It is submitted that as per his statement he informed this fact after 4-6 days of the incident to the investigating officer. However, his statement under section 161 Cr.P.c. was recorded after 15-16 days of the incident. P.W.7 is an interested witness and admitted that he was ''Pattidar' of the first informant and his brother Arun Kumar. The Investigating Officer also admitted that the statement of P.W.7 Shob Nath Shukla was recorded after a fortnight.

Further submission of the learned counsel for the appellant is that the presence of P.W.1 and P.W.2 at the time of missing of the victim is doubtful .P.W.1 stated that he was on duty whereas P.W.2 stated that the informant S.P. Shukla (P.W.1) came to his house during day time and also in the evening on the date of incident. The informant had accompanied him during the search for the victim.

Further the appellant in his statement under section 313 Cr.P.c. in reply of question no.1, has categorically stated that on the date of incident, P.W.2 Arun Kumar Shukla went to Lucknow and was not at home.

Learned counsel for the appellant has vehemently urged that the alleged statement of the appellant recorded under section 164 Cr.P.c. by the Magistrate cannot be read in evidence as it does not pass four tests as per law laid down.They are:-

1. it should be voluntary.

2. the court should satisfy itself that it is truthful.

3. it should be corroborated on vital course with all the pieces of evidence.

4.the Magistrate had to satisfy himself before recording the statement, that all necessary safeguards have been taken.

In the present case, the Magistrate was examined and the statement of the appellant is not compatible with the four parameters laid down to treat the confessional statement as a substantive piece of evidence. The statement was not voluntary as the appellant has retracted it at the very first opportunity in his statement under section 313 Cr.P.C. He categorically stated that he was under the pressure of the Investigating Officer when he gave statement before the Magistrate. In the confessional statement there is a variance in the time of the victim leaving the house. The confession is that the appellant met the victim at 5.30 a.m. near the sugar cane field whereas, according to P.W.2,the father of the victim, she left the house at 6 a.m. on the date of incident.

Further cause of death as suggested in the postmortem report is smothering leading to asphyxia whereas the confession is that the appellant caused death by knife. Learned counsel for the appellant urged that the prosecution case is of gang rape whereas the appellant allegedly confessed that he had alone committed the crime. There is no whisper of the presence of Bisai alias Vishwanath at the time of incident. It is undisputed that the appellant came from the jail when his statement was recorded on 18.12.2006. He was not given time to think or retract before recording his narration of story of the incident. Thus the Magistrate has not taken the necessary safeguards which are mandatory for recording the statement under section 164 Cr.P.c.. He further submits that there is no dispute about the fact that statement under section 164 Cr.P.C. is an admissible piece of evidence but not a substantive one and if retracted it becomes weak and weaker, and it has to pass four tests mentioned above. It is apparent that the prosecution has failed miserably to pass the test. It was not voluntary and truthful and could not be corroborated from all the pieces of evidence on vital course and hence it cannot be relied and has to be discarded.

The Magistrate was examined as P.W.11 and he has stated that he gave an oral warning to the appellant on 15.12.2006 before recording his statement and the appellant was kept in judicial custody. However, in the confessional statement recorded on 18.12.2006, the Magistrate has not mentioned that he gave a warning to the accused on 15.12.2006. The Magistrate has not put the question to the appellant that why he was making such a statement. From the statement recorded on 18.12.2006, it is apparent that the accused was not informed about the repercussions of his confessional statement and the statement was recorded in one go soon after the warning was given. There was no time between the warning and the recording of the statement. Thus it was not possible for the appellant to ponder and to reflect in his mind.

Placing reliance upon the judgement in Dulal Paul vs. State of West Bengal reported in 1996 Laws (Cal.) at page 12 and Babu Bhai Udesinh Parmar Vs. State of Gujarat reported in AIR 2007 SC 420,learned Amicus Cuire for the appellant submits that it is atrociously illegal to finish the Magisterial duty, just by ordering the accused person segregated as soon as he was produced before the Magistrate, without administering a warning and then to get hold of him on the next day and recording his confession in the same sitting immediately after administering caution without giving him any time to reflect in his mind. All these are highly required cautions to protect the human rights of the accused guaranteed by the norms of a civilized society such as ours. It was held in Dulal Paul(Supra) that so called confessional statement is highly illegal and improper in utter violation of law and legal rights of the accused . The Sessions Judge was undoubtedly in error in relying on it. In Babu Bhai Udesinh Parmar(Supra) it was held that the provisions of section 164 Cr.P.C. contains a salutary principle and only in the event the confession is found to have been voluntarily rendered, the same can be the foundation for recording a judgment of conviction. It has to be truthful, deliberate and voluntary and clearly proved. The voluntary nature of the confession depends upon whether there was any threat , inducement or promise and its truth is judged on the basis of entire prosecution case. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. The Apex Court has observed that retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false. The court must give sufficient time to an accused to ponder over as to whether he would make confession or not.

Learned counsel for the appellant further urged that regarding the injuries of the appellant,P.W.2 tried to improve the case and stated that on the fateful day when the appellant reported on duty in the morning, there was a bandage on his hands and he had covered himself with a sheet. P.W.2 enquired and the appellant replied that it was caused while cutting sugar cane in the field. There is no mention of the said circumstance in the First Information Report. Thus the statement of P.W.2 that he had seen injuries on the person of the appellant in the morning on the date of incident is a scripted one.

Sri Brijesh Sahai, learned Amicus Curiae submits that the father came to know about the girl missing at about 9 a.m. In that case, his natural conduct should be that he should have started search of the girl immediately but it is apparent that P.W.2 started search only in the afternoon when the time of school was over. P.W.1 in his statement categorically stated that when he reached the house of his brother Arun Kumar Shukla, the persons present over there informed him that when Priti did not return after school, then a search was stared in the evening and the dead body was found in the sugarcane field.Thus there was variation in the statements of P.W. 1 and P.W.2 regarding the time of missing of the girl and further no search whatsoever was conducted by P.W.2 as suggested by him before evening. Looking to the statement of P.W.7, the incident is prior to 6 a.m. as he had seen the appellant and co-accused Bishai alias Vishwanath sitting perplexed on the 'Pulia' at a short distance from the sugarcane field where Priti was murdered. Thus, none of the witnesses of fact were able to give the correct time of the incident.

Further submission of the learned counsel for the appellant is that the postmortem doctor had opined that rigor mortis was present in both the limbs of the deceased. The postmortem was conducted on 9.12.2006 at around 3 P.M.

Learned counsel for the appellant submits that as per Modi's, Raju Jhala and Dr. Forqui's Medical Jurisprudence rigor mortis appear first in the region of head, face and neck. Lower extremities are the last to show its appearance. Hence from the presence of the rigor mortis in lower extremities, it can be safely opined that it was present all over the body. Further opinion of the doctor is that the dead body was about a day old. In view thereof the postmortem report does not support the prosecution story and the time of incident is doubtful.

The Investigating Officer P.W.11 admitted that hair found in the hands of deceased were not sent for chemical examination. P.W.1 S.P. Shukla was interrogated thrice and his statement under section 161 Cr.P.C. was recorded but no suspicion was cast on the appellant from 8.12.2006 till 14.12.2006. There was no circumstance to suspect the appellant justifying the reason for his arrest on 14.12.2006 on the information of an unknown assailant . This statement of the investigating officer clearly indicates that in fact the appellant was arrested on 9.12.2006 from the postmortem house as stated by P.W.7 and was beaten by the police. He was threatened to confess the crime,in order to solve the case.

Lastly it is submitted that the injuries especially injuries no. 7 and 8 of the appellant are the result of police beating. Learned Amicus Curiae submits that the doctor did not opine that any of the injuries were of tooth bite and nail scratches which are the most typical injuries in a case of violent rape. These injuries are conspicuous by their absence though the Investigating Officer specifically asked the doctor in the letter written by him regarding the nature of injuries. The doctor stated that there was possibility of the injuries been caused by sugar- cane leaves.

Learned Government Advocate on the other hand submits that this was an incident of rape and murder of a minor girl in a planned and deliberate manner. The case of the prosecution rests upon circumstantial evidence. The circumstances arising out of the prosecution evidence conclusively point towards the guilt of the appellant. As per the prosecution case, the deceased left the house at about 6 a.m. for tuition and when she did not return back as per her daily routine, search was made by the family members of the deceased and her dead body was found in the sugar cane field at around 5 p.m. Thereafter, First Information Report was lodged by the uncle of the deceased at about 6.30 p.m. It was an unnamed First Information Report. During the course of investigation, on the basis of the information furnished by an informer, the appellant was arrested by the Investigating Officer on 14.12.2006. The recovery was made on the same day soon after the arrest of the appellant on his disclosure statement.

The injuries were found on the person of the deceased and it were examined on the date of arrest i.e. 14.12.2006. P.W.10 Dr. Ramesh Pandey who had examined the injuries of the appellant found two incised wounds on the palms and fingers of the deceased and five abrasions on the face, finger and knee of the appellant. According to P.W.10 the injuries sustained by the appellant were seven days old. The father of the deceased also saw injuries of the appellant on the date of incident. The nature of injuries clearly demonstrate that the same were caused at the time of incident due to the resistance put by the deceased. The appellant gave a false explanation regarding injuries received by him.In the statement recorded under section 313 Cr.P.c., the appellant stated that he had suffered injuries on account of police brutality. In reply to question no.11, the appellant stated that there was no injury on the date of incident as stated by P.W.2. While explaining his injuries in reply to question no.30, the appellant stated that he was not examined by the doctor namely P.W.10, Dr. Ramesh Pandey on 14.12.2006. The injuries shown by the doctor were forged and had been procured to falsely implicate him.

Learned G.A. further stated that there was enough evidence on record that the appellant was treated in the P.H.C. on 14.12.2006. The doctor P.W. 10 had categorically deposed that on 14.12.2006 he was posted at P.H.C. Walterganj. He had examined the appellant who was brought by the police constable Rajendra Yadav alongwith the letter of the Investigating Officer.

The appellant completely denied the established fact and offered a false explanation. It is well established principle of law that in a case of circumstantial evidence where accused offers false answer against the established fact that can be counted as providing a missing link for completing the chain.

The investigating officer has categorically stated that the appellant was arrested on 14.12.2006 and Dr. Ramesh Pandey,(P.W.10) stated that he had examined the injuries of the appellant on 14.12.2006 itself. No suggestion was made by the defence to the Investigating Officer with regard to beating or torture by the police in his cross examination. So far as the arrest of the appellant is concerned, learned G.A. submits that the appellant had accompanied the father of the deceased in the search and was with him on the day of incident. Moreover he was working in the house of the deceased for the last two years, therefore, the family members did not implicate him as they could not believe that the appellant could commit the crime. P.W.1 categorically stated that he did not name the appellant on the basis of suspicion. The appellant was arrested only after the information was received by the police. Thus merely because the appellant was not named in the First Information Report, it can not be said that he was falsely implicated later on.

There is no basis for the suggestion of the defence that the appellant was arrested on 9.12.2006 and not on 14.12.2006. The appellant did not say so in his statement recorded under Section 313 Cr.P.C. A specific question was put to the Investigating Officer during cross examination regarding the date of the arrest and consistent stand of the Investigating Officer was that the appellant was arrested on 14.12.2006. Thus there was no reason to disbelieve the version of the Investigating Officer. He further submitted that on 14.12.2006, soon after the arrest of the appellant two bloodstained shirts and a plastic sack were recovered at his pointing out from his room.At the pointing out of the appellant the slippers of the deceased and a knife were also recovered from the place where the crime was committed. These recovered materials were sent for chemical examination. As per report of Forensic Science Labortary, human blood was found on the shirt of the appellant.

So far as the presence of rigor mortis at the time of postmortem is concerned, learned G.A. submits that its presence depends on various factors such as physical condition of the deceased, weather and temperature in the region and the condition in which the body was preserved. Merely from the presence of rigor mortis at the time of postmortem report on 9.12.2006 no definite opinion can be formed regarding the time of the incident. Moreover it was the winter month and in such season the rigor mortis is present for a long duration.

On the above basis learned G.A. submits that the medical evidence fully supports the case of the prosecution. Apart from the antemortem injuries some postmortem injuries and burn injuries were also found on the person of the deceased.

In his statement under section 313 Cr.P.C., the appellant set up a false story that the murder took place in the house of the deceased in the absence of her father. The defence witness completely denied the said story rather she supported the prosecution case as far as the appellant is concerned. Moreover, the appellant has confessed the crime before the Magistrate prior to the commencement of the trial, though he retracted it later.The confessional statement under section 164 Cr.P.c. was recorded after he was warned that it could go against him and he could be held guilty on the basis of same. The Magistrate took all requisite precautions before recording his statement. The appellant had spent three days in judicial custody prior to recording the confessional statement. Thus, retraction of the accused that he made confession on account of threat given by the Investigating Officer was rightly disbelieved by the trial court. Moreove, the appellant admits in his statement under section 313 Cr.P.c. That when his confessional statement was recorded by the Magistrate he did not inform the Magistrate that there was any pressure, inducement or coercion by the police. Thus the prosecution rightly rests its case on the confession of the appellant before the Magistrate in addition to the other circumstances. All the facts taken together complete the chain of circumstances so as to prove the guilt of the accused beyond reasonable doubt.

On the question of sentence it is submitted by the learned G.A. that for providing punishment to the appellant, test regarding gravity of offence has to be determined. The appellant committed rape and murder of a minor girl in a most diabolic manner. The postmortem injuries and burn injuries found on the person of the deceased show the brutal and inhumane act of the appellant. It is evident from the record that there was no provocation nor any instigation. There was no sudden or immediate extreme mental or emotional disturbance. The act of the appellant comes within the purview of "rarest of rare case" and the appellant is liable to be punished with death sentence and the death reference is to be accepted.

Having heard learned counsel for the parties and after perusal of the record, we find that the present case is of circumstantial evidence in addition to the retracted confessional statement of the accused.

Dealing with the submission of the learned counsel for the appellant regarding variation in the time of incident, we may notice that the father of the deceased i.e. P.W.2 stated that when the deceased did not return home after the first tuition, his wife informed him. He then went to Mauja Mahadeva and was informed that she had not come there .After which he went to the house of Hanumat Prasad in Mauja Bangavan whose daughter informed that Priti did not come to the school. By that time it was dawn, and then he along with the villagers started a search for his daughter in the nearby fields on the side of the road leading to the school from the village . Her body was found in the sugarcane field of Shri Kant in village Nawada. P.W.1 uncle of the deceased who had lodged the First Information Report also stated that when Priti did not return home, his brother and villagers made a search and her dead body was found in the sugarcane field of Shri Kant. Thus having perused the statements of P.W.1 and P.W.2 the submission of the learned counsel for the appellant that the search was started in the afternoon and the family members had waited till school time was over cannot be accepted. The natural conduct of the P.W 2 was firstly to search for his daughter at the places where she was supposed to be on the said date and time and then to search at other places. Thus there was nothing unnatural in the conduct of the P.W.2 and the manner of search for his daughter. The suggestion that P.W.2 had waited till afternoon is totally unfounded.

As far as the arrest of the accused is concerned, we find from the evidence on record that the family members of the deceased did not implicate the appellant on suspicion as he had accompanied them during the search of the deceased and also brought the dead body from the sugarcane field to the village on tractor. There was no occasion for the family of the deceased to believe that he could have committed the crime. The appellant was arrested only after the information was received by the police given by the informer. The Investigating Officer was cross examined regarding the date of arrest and he categorically stated that the appellant was arrested on 14.12.2006. Thus there is no force in the submission of the learned Amicus Curiae that the arrest was made earlier and the appellant was falsely implicated by the police in order to solve the case.

Moreover the injuries found on the person of the appellant on the date of his arrest i.e.14.12.2006 were examined by the doctor on the same day and he had opined that the injuries were seven days old. Looking to the nature of the injuries, it can be safely concluded that these injuries were caused on account of resistance put by the deceased when the appellant had raped and murdered her. The postmortem report also suggested that violent rape was committed with the deceased and she died on account of injury no.3 i.e. multiple abratted contusion on and around the mouth, upper and lower lips and chin and nose. Postmortem doctor opined that death was caused due to smothering leading to Asphyxia which corroborates the injury no.3. The postmortem doctor categorically stated in his cross examination that the death was not caused by throttling rather it was a case of smothering. The ligature mark on the neck and knot on the right side and the burns were postmortem injuries. Thus submission of the learned counsel for the appellant that no tooth biting and nail marks found on the person of the accused as the doctor who had examined his injury did not give any such opinion and the appellant, therefore, cannot be said to be the author of the crime is not worthy of acceptance. The doctor who had examined the injuries of the appellant had opined that injuries could occur during scramble in the sugarcane field. Rest of the injuries could occur on the resistance put by another person. Thus from the evidence discussed above brought on record by the prosecution we find that the prosecution story is supported by the medical evidence.

So far as the rigor mortis is concerned, we see no basis whatsoever for the argument of the learned Amicus Curiae. Firstly the postmortem report clearly suggests that the dead body was about one day old. The postmortem doctor did not say that the death occurred exactly 24 hours before the postmortem. The postmortem examination was carried out at 3 p.m. on 9.12.2006. Thus in other words, the postmortem report suggested that the death might have occurred any time on 8.12.2006. Secondly it is well settled that the presence of rigor mortis depends on various factors i.e. constitution of the deceased, season of the year , temperature in the region and the condition under which the dead body has been preserved. The record indicates that the death occurred after 6 a.m. in the morning on 8.12.2006. It was winter month and the deceased was a young female of average built body. The body was kept in an open place under the sky in a cold night in the village. The reference be made to the page No. 432 Modi's Medical Jurispredence and Toxicology, twenty-third Edition wherein it is mentioned that in northern india the usual duration of rigor mortis is 24-48 hours in winter. Meaning thereby it is present for longer duration during winter season.

Thus in the circumstances of the present case, the presence of rigor mortis in all four limbs as opined by the doctor itself cannot dislodge the acceptable oral evidence on the hypothesis drawn by the counsel for the appellant.

Further submission of the learned counsel for the appellant that P.W.1 cannot be a witness of recovery as he did not accompany the police and came later. The recovery was planted by the police. He vehemently submits that the discovery under section 27 of the Evidence Act has to pass four tests to be truthful. They are;- (1)exclusive knowledge of the accused. (2) voluntary discovery (3) recovered article was found in a concealed state (4) the accused was author of concealment.

Until all the four parameters are met, the recovery is a sham. The recovery is one of the circumstances for implication of the appellant and is demolished and hence the chain of circumstances is not complete. The statement of the Investigating Officer was that he had discovered the shirt from the room of the appellant but there is nothing on record to indicate that it was on the disclosure statement made by the accused that he has concealed the same and further he had voluntarily got it recovered . It is urged that though human blood was found on the shirt yet blood group was not matched.

Dealing with the above submission we consider the circumstances which led to recovery of shirt from the room of appellant as is seen from the evidence. The accused led the recovery soon after the arrest . The disclosure statement has been signed by witnesses Ved Prakash and Dinanath. The recovery memo bore signature of Dinanath( P.W.3) who proved the recovery. So far as the concealment by the accused is concerned he did not offer any explanation that it was planted by someone else. In his reply to question put to him regarding recovery of shirt from his room under Section 313 Cr.P.C., he only stated "Galat Hai".He did not say that shirt did not belong to him. It may also be noted that the shirt was discovered from the room of the appellant. It was not discovered from a place where public can have free access, therefore, there is no reasonable apprehension of the same being planted to rope the appellant with the crime. The Investigating Officer was re-examined on 12.10.2009. No suggestion was put to him regarding recovery being planted. So far as submission that human blood found on the shirt was not matched,we find that serologist report indicates that blood was found on a large portion of the shirt. The accused has not offered any explanation as to how human blood came on his shirt. In John Pandian Vs. State Represented by Inspector of Police, Tamil Nadu , reported in (2010) 14 SCC 129. The Apex court held as follows :-

"It was then urged by the learned counsel that this was an open place and anybody could have planted veechu aruval. That appears to be a very remote possibility. Nobody can simply produce a veechu aruval planted under the thorny bush. The discovery appears to be credible. It has been accepted by both the Courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the Forensic Science Laboratory(FSL) and it has been found stained with human blood.Though the blood group could not be ascertained,as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none.This discovery would very positively further the prosecution case. "

In Golakonda Venkateswara Rao Vs. State of A.P. (2003) 9 SCC 277 the Apex court in paragraph 15 observed as under-:

"The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false."

In State of Maharashtra Vs. Suresh (2000) 1 SCC 471. The possibility where the accused had not offered any explanation as to how else he came to know of the concealment has been examined. The Apex court held that : "26.We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself.One is that he himself would have concealed it. Second is that he would have known somebody else concealing it.And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself.Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

Having examined the recovery memo, statement of P.W.3, Investigating Officer, statement of the accused and the legal position discussed above we find that indisputably recovery was at the instance of the appellant. He could not offer the explanation as to how there was human blood on his shirt.Further there was nothing to indicate that the Investigating Officer had any animosity with the appellant or any kind of interest and closeness with the deceased. Therefore, the question of disbelieving the statement of the Investigating Officer does not arise. The discovery of shirt further fortified and confirmed by the other evidence which leads to believe that the information was true.We therefore hold that the recovery was under the provision of section 27 of the Evidence Act.

The next circumstances is false explanation offered by the appellant. The appellant gave a false answer regarding injury on his person. The answer to question no.11 was that he received injuries due to police brutality after arrest and there was no injury on the date of incident. In reply to question no.30, he stated that he was not examined by doctor on 14.12.2006 and a forged injury report was prepared by the doctor under pressure. There was enough evidence on record that the appellant was treated at P.H.C. which has been further fortified from the oral evidence of the doctor P.W.10. it may be noted that no question or suggestion was put to the investigating officer regarding beating or torture by the police. Thus the appellant offered a false explanation against the established facts. Further in his defence he set up a false story that the murder took place inside the house of the victim in the statement under section 313 Cr.P.c. recorded on 11.6.2009.

Before the trial court, the appellant moved an application 69 kha with the request to keep it on record. Though the said application was not admissible, however, on the request of the appellant it was kept on record. As discussed in the order of the trial court, the appellant in the said document narrated the same story of the incident. As set up in section 313 statement. He however made an effort to improve it and stated that Mandkani had an illicit relationship with Bisai alias Vishwanath, co-accused. On the date of incident P.W.2 Arun Kumar Shukla father of the deceased had gone to Lucknow. When Mandakini threatened that she would implicate him in the murder of Priti, he agreed to help her. Mandakini took out a broken bottle stuck in the abdomen of Priti and removed Gamcha from her neck. They then wrapped the dead body in a sheet and kept it in the cane field near Gram Naveda. He was assured by Mandakini that she would save him in case he would confess the crime. The story set up by the appellant is concocted as no injury was found on the abdomen of the deceased. There is nothing on record to indicate that father of the deceased was in Lucknow. No suggestion was given by the defence to P.W.2 or any other witness to prove the absence of P.W.2 in the village on the date of the incident.

It is well settled principle that in a case of circumstantial evidence when the explanation offered by the accused is found to be false it is an additional link in the chain of circumstances to complete the chain. It is held in State of Maharashtra (supra) that in a situation like this false answer can also be counted as provided "missing link" for completing the chain. Same principle is reiterated in Kuldeep and others vs. State of Rajasthan reported in (2000) 5, SCC 7.

So far as the submission that all the witnesses of fact were related witnesses and no independent witness was examined by the prosecution, suffice it to say that the evidence of related witnesses can be relied upon provided it is trustworthy.Mere relationship does not disqualify the witnesses.They are as competent to depose the fact as any other witness. We may notice that this is a case of circumstantial evidence. P.W.1 uncle of the deceased reported the incident.P.W.2 father of the deceased gave a detailed account of the fact of missing of the girl and her dead body found in the sugrcane field after an extensive search.

P.W.3,4, and 5 are independent witnesses and are the residents of the village. P.W.1 and P.W.2 did not implicate the appellant but he was arrested on the information received by the police. Both the prosecution witnesses P.W.1 and P.W.2 faced grilling cross examination. Moreover on the scrutiny of the deposition of P.W.1 and P.W.2, their statements were found trustworthy. They were natural witnesses. There was no proof that these witnesses had any animosity with the appellant. Their testimony was found trustworthy though there are minor discrepancies in the narration of the incident when they spoke on deposition.In view of the above we reach to an inescapable conclusion that the testimony of these witnesses inspire confidence and not to be discarded merely on the ground that they are related to the deceased.

In addition to other circumstantial evidence the prosecution rests its case on the confession of the appellant before the Magistrate,however he retracted that it was under the threat given by the Investigating Officer. The legal position is that the confession can not be made the solitary basis of conviction unless corroborated.However, every circumstance mentioned regarding complicity of the accused must not be separately and independently corroborated nor it is essential that corroboration must come from the facts and circumstances discovered in the confession. It would be sufficient in our opinion that the trend of confession is substantiated by some evidence which would tally with what has been contained in the confession.

In Shankaria vs. State of Rajasthan (1978) 3 SCC 435 it is held that it is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. The first question which is to be examined by the court whether the confession was perfectly voluntary. The satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the court to have been caused by any inducement ,threat or promise such as is mentioned in section 24 of the Evidence Act, it must be excluded and rejected brevi manu. In such case, the question of proceedings further to apply the second test, does not arise.

The same principle has been reiterated by the Apex court in its earlier judgment reported in Subramaina Goundan Vs. The State of Madras, AIR 1958 SC 66; Henry Westmuller Roberts Vs. State of Assam (1985)3 SCC 291 and latest judgement in Lokeman Shah and anohter vs. Stare of West Bengal (2001)5, SCC 235.

In Lokeman Shah (Supra) the Apex court laid down test of discerning whether a statement recorded by a Judicial Magistrate under section 164 Cr.P.C. from an accused is confessional or non-confessional is not by dissecting the statement into different sentences and then to pick out some as not inculpatory. The statement must be read as a whole and then only the court should decide whether it contains admission of his incriminatory involvement in the offence . if the result of that test is positive then the statement is confessional, otherwise not.

Applying the test, firstly we have to examine whether the confessional statement was voluntary .The reason given for refraction by the appellant is that it was under the threat of the Investigating Officer. His statement under section 313 Cr.P.c. was recorded on 11.6.2009.The Investigating Officer was re-examined on 12.10.2009 but no suggestion was given by the defence that he had threatened the appellant to confess the crime. Moreover, the appellant did not complain to the Magistrate about any threat, inducement, pressure or beating given to him by the investigating officer. The appellant was in judicial custody for three days before proceeding for the confession. The Magistrate who had recorded the confessional statement of the accused was examined and has deposed that on 15.12.2006 the appellant was produced before him for recording his confessional statement. As the appellant was in police custody, therefore, with a view to ensure that he was completely free from the police influence the appellant was sent to judicial custody. On 15.12.2006 the Magistrate gave an oral warning to the accused that in case he confessed, it would be read against him in evidence. Though the fact of oral warning given by the Magistrate on 15.12.2006 has not been mentioned in the confessional statement of the accused on 18.12.2006, yet it is an admitted fact that the appellant was kept in judicial custody.

In the instant case the appellant was arrested on 14.12.2006 and was sent in judicial custody on 15.12.2006 with the object of giving him time to ponder. Thus he was not in a police lockup for a prolonged period. It will be seen that much time for reflecting was allowed to the appellant before recording his confession on 18.12.2006. Even on 18.12.2006, the Magistrate before recording his statement gave the warning and only after satisfying himself that the accused was under no inducement or threat he proceeded to record the confessional statement. After the confessional statement was recorded it was read over to the appellant and he had endorsed the same. Thus considering that the appellant had sufficient time to secure freedom from fear or influence of the police, we hold that the confessional statement of the appellant was totally voluntary and there was no influence or threat.

The facts in Dulal Paul (Supra) relied upon by learned Amicus Curiae were entirely different. Therein the accused Dulal Paul was produced before the Magistrate on 6.9.1989 and the fact that the villagers gave a good beating to the accused before he was produced for confessional statement was fully established. The Judicial Magistrate himself noticed some injuries on the person of the deceased Dulal Paul and directed the Sub-jailer to arrange for his treatment. It was observed that if the accused was beaten up by the villagers so much as to bear marks of injuries on his person even on 6.9.1989, unless the Magistrate allowed him sufficient time, opportunity and protection to dispel that influence of horrible experience and had categorically assured him that he would not be made over to the police or to the villagers once again, the confessional statement relied upon by the prosecution case can not be considered to be anything but tainted, obtained by coercion and under impulse of horror of further beating. The legal requirements of a judicial confession were not fulfilled and, therefore, it was held that the Sessions Judge had undoubtedly erred in relying on it.

In Babu Bhai Udesinh Parmar (supra) the accused was produced from the judicial custody but he had been in police custody for a period of 16 days. He was not given sufficient time to ponder as to whether he could make the confession or not. The first confession was recorded in 15 minutes time and soon thereafter the Magistrate had started recording the confession of the accused in a second case. Both the cases involved serious offences. They resulted in the extreme penalty, The Magistrate, therefore, should have allowed some more time to the appellant to make his statement. Indisputably in the said case, apart from the purported judicial confession there was no other material which could be said to be sufficient to establish the guilt of the accused.

Whereas in the case in hand, having carefully examined the confessional statement of the appellant as a whole we find that the appellant had narrated the incident. He confessed that he met Priti in the morning on the road between village Jagdishpur and Naveda. She was on a bicycle. He stopped her and dragged her in the nearby sugar cane field where he raped and murdered her. The injuries were received by him on the resistance put by the deceased Priti. He throttled her neck and then murdered her with knife.

Having examined the confessional statement of the accused as a whole and the fact that the appellant gave no satisfactory explanation of his injuries and the presence of human blood on his shirt recovered from his room and further in view of the doctor's opinion that the injuries could have been caused on the resistance of a person, we find that retracted confessional statement of the accused finds corroboration from the circumstantial evidence, unerringly pointing towards complicity of the accused.

The contention of the learned counsel for the appellant that injuries of tooth bite and nail scratches were not substantiated from the doctor's opinion who had examined the injuries of the accused. As per the confessional statement of the accused, it was a violent rape of the deceased and she had resisted. Thus in absence of the report of the doctor regarding injuries of nail scratches and tooth bite and further absence of the report of the chemical examination regarding blood group found on the shirt the confessional statement was neither voluntary nor truthful. We do not feel inclined to put such a restricted meaning of the explanation of the injuries of the accused given by the doctor and the serologist report that human blood was found on a large portion of the shirt, though the blood group was not matched.

To sum up it was cogently established that the confession was voluntarily made and it is true. Further it received assurance in several material particular from the reliable independent evidence mainly of circumstantial character. The confession coupled with other evidence on the record had unerringly and undoubtedly brought home the charge of the appellant.

From the above material we have noted the following circumstances relied upon by the prosecution and accepted by the trial court:-

1. The crime was committed in most brutal and dastardly manner.

2.Ligature mark and burn injuries on the person of the deceased were postmortem injuries.

3.As per opinion of the doctor the death was caused by smothering leading to asphyxia.

4.The injury no.3 on the person of the victim clearly substantiate the opinion of the doctor.

5.The conduct of the appellant even after the death in inflicting injuries on the dead body of the victim betrayed an extreme depravity of character.

Putting all these circumstances together, we fully concur with the judgment of the trial court that the appellant accused was author of the crime.

Sentence Now on the question of sentence it remains to be decided as to whether this case falls in the category of rarest of the rare cases, justifying capital punishment.

In the case of Shankar Kisan Rao Khade Vs. State of Maharashtra reported in (2013) 5 SCC 546, the Apex court has considered its earlier judgements and observed that after striking the balance between aggravating and mitigating circumstances and other factors like the young age of the accused,possibility of reformation, lack of intention to murder consequence to rape etc. have gone into the judicial mind for converting the death penalty to that of imprisonment for life.

In paragraph 106 of the said judgement, the Apex Court observed that-:

"A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include:

(1) the young age of the accused (Amit v. State of Maharashtra aged 20 years, Rahul aged 24 years, Santosh Kumar Singh aged 24 years, Rameshbhai Chandubhai Rathod (2) aged 28 years and Amit v. State of Uttar Pradesh aged 28 years);

(2) the possibility of reforming and rehabilitating the accused ( in Santosh Kumar Singh and Amit v. State of U.P. the accused, incidentally, were young when they committed the crime);

(3) the accused had no prior criminal record (Nirmal Singh, Raju, Bantu, Amit v. State of Maharashtra, Surendra Pal Shivbalakpal, Rahul and Amit v. State of U.P.);

(4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State of U.P.);

(5) a few other reasons need to be mentioned such as the accused having been acquitted by one the Courts (State of Tamil Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat Fakira Dhiwar, Mansingh and Santosh Kumar Singh);

(6)the crime was not premeditated (Kumudi Lal, Akhtar, Raju and Amrit Singh);

(7) the case was one of circumstantial evidence (Mansingh and Bishnu Prasad Sinha).

In one case, commutation was ordered since there was apparently no "exceptional" feature warranting a death penalty (Kumudi Lal) and in another case because the Trial Court had awarded life sentence but the High Court enhanced it to death (Haresh Mohandas Rajput)."

In paragraph 142 it has been observed that the decisions of the Apex Court clearly suggest that the Apex Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying the formula laid down in Bachan Singh Vs. State of Punjab reported in 1980 (2) SCC 684.

In Bantu Vs. State of M.P. reported in 2001(9) SCC 615 the Apex court commuted the death sentence awarded to the accused to that of imprisonment for life. The accused was 22 year old man who had committed rape and murder of a six year old child. It was acknowledged that the rape and murder was heinous but the Apex Court took into account that the accused had no previous criminal record and that he would not be a grave danger to society at large. On this basis, the death penalty was converted to life imprisonment. In Amit Vs. State of Maharastra reported in 2003 (8) SCC 93 the death penalty awarded to the accused for the rape and murder of an eleven year old child was converted to imprisonment for life for the reason that he was young man of 20 years when the incident occurred. He had no previous record of any heinous crime and there was no evidence that he would be danger to the society. Similar view has been taken by the Apex Court in Surendra Pal Shivbalakpal Vs. State of Gujarat reported in 2005(3) SCC 127; Rahul Vs. State of Maharastra reported in 2005 (10) SCC 322; Amrit Singh Vs. State of Punjab reported in (2006) 12 SCC 79.

In the instant case, the age of the accused appellant as mentioned in his statement under section 313 Cr.P.C. is about 24-25 years. Further there is nothing on record to suggest that the accused had previous history of any heinous offence.

However, though we do not find that this case falls in the category of "the rarest of rare case" to award death sentence to the accused appellant, yet looking to the violent rape and brutal murder of a young girl and the act of the accused in inflicting postmortem burns & ligature mark injuries on the dead body of the victim betraying an extreme depravity of character, we are of the view that as an alternative to death penalty, the accused appellant be awarded imprisonment for his full life subject to any remission or commutation at the instance of the Government for good and sufficient reasons.

In view of the aforesaid facts and circumstances, we conclude that the judgment of the trial court convicting the appellant under sections 302 and 376 I.P.C. suffers from no illegality and is upheld. We, however, modify the sentence awarded to the appellant and commute the same to a sentence of imprisonment for life.

The reference for confirming the sentence of death is rejected.

With the above modification the appeal is dismissed.

The certified copy of the judgment be sent to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate, Basti within four weeks from date of receiving the copy of this order.

Date:26.8.2014 Aks.