Court No. - 34
Reserved on : 10.05.2019 Delivered on: 29.05.2019
Case :- JAIL APPEAL No. - 835 of 2008
Appellant :- Sanjay Kumar Tripathi
Respondent :- State
Counsel for Appellant :- From Jail, Devendra Pratap Singh (A.C.)
Counsel for Respondent :- A.G.A., Ratan Singh
Hon'ble Sudhir Agarwal, J. Hon'ble Raj Beer Singh, J.
(Delivered by Hon'ble Raj Beer Singh, J.)
1. The present jail appeal has been preferred by accused-appellant Sanjay Kumar Tripathi alias Bitthal against judgment and order dated 30.10.2009 passed by Shri Sanjay Khare, Additional District & Sessions Judge/Fast Track Court, Chandauli in Session Trial No. 28 of 2004 whereby accused-appellant was convicted under Sections 302 and 377 IPC and sentenced to imprisonment for life and fine of Rs. 10,000/- under Section 302 IPC and in default of payment of fine, he has to undergo one year additional imprisonment. He was sentenced to seven years rigorous imprisonment and fine of Rs. 5,000/- under Section 377 IPC and in default of fine, he has to undergo six months additional imprisonment.
2. Facts and circumstances giving rise to present appeal are that on 08.01.2004 at about 9:30 AM, Akhilesh Kumar (deceased), aged 12 years, son of Complainant-PW-1, Ram Avadh Maurya, had gone to his school 'Geeta Shishu Mandir, Majhgavan, since school was closed, he along with other children including Kumari Madhuri was returning to home, at about 12:00 noon, when they reached near dilapidated house of Ram Adhar Gaur, accused-appellant Sanjay Kumar Tripathi met them and he along with these children plucked guavas and thereafter, all children, except Akhilesh Kuamr, were made to flee there from by him stating that Akhilesh Kumar would come later with him. When Akhilesh Kumar did not return at his home till 4:00 PM, his family members made search for him and after coming to know about above-stated facts, complainant along with other persons, reached the dilapidated house of Ram Adhar Gaur and saw that dead body of Akhilesh Kumar was lying in a room of that house and a big stone was lying on his mouth. One passbook of 'Dugdh Utpadak Samooha' having name of 'Ajay Kumar Tripathi', one 'Hanuman Chalisa' booklet and one pen were also lying there. Complainant, Ram Awadh, reported matter to police by filing tahrir Ex. Ka-1, alleging that his son has been murdered by accused-appellant Sanjay Kumar Tripathi.
3. On the basis of tehrir, Ex. Ka-1, FIR was registered on 08.01.2004 at 21:05 hours under Section 302 IPC against accused-appellant.
4. During course of investigation, PW-7 S.I. Nirmal Chandra Shukla recorded statements of witnesses and prepared site plan of spot. Bag of deceased, lying at spot, was seized vide seizure memo Ex. Ka-5 and samples of blood stained and plain soil were also taken from spot vide seizure memo Ex. Ka-3. One passbook of 'Dugdh Utpadak Samooh', having name of 'Ajay Kumar Tripathi', one 'Hanuman Chalisa' booklet, one pen and one 'Madhav Chalisa' booklet on which 'Sanjay Kumar Tripathi' was written were also seized from spot vide seizure memo Ex. Ka-2. Clothes of deceased as well as samples of blood stained and plain soil were sent to Forensic Science Laboratory.
5. Inquest proceedings were conducted by PW-7 S.I. Nirmal Chandra Shukla, vide inquest report Ex. Ka-4 and dead body of deceased was sealed and sent for postmortem.
6. Post-mortem on dead body of deceased was conducted by PW-6, Dr. R.K. Gupta on 10.01.2004, vide postmortem report Ex. Ka-6 and following injuries were found on his person:-
(i) Contusion 10 cm x 8 cm x on left side of forehead and head touching to left ear.
(ii) Multiple contusions 27 cm x 18 cm on left side of face, both side of front and outer aspect of neck and front of chest.
(iii) Multiple abraded contusions 28 cm x 12 cm on front, outer and inner aspect of left arm, elbow and forearm.
(iv) Multiple abraded contusion 28 cm x 28 cm x on back of both shoulders, chest and back of abdomen.
(v) Abrasion 5 cm x 4 cm on front of rt. knee.
(vi) Abrasion 6 cm x 4 cm on front of lt. knee.
(vii) Wall of anus teared and admits three fingers.
7. According to Autopsy Surgeon, cause of death of deceased was due to asphyxia as a result of throttling, by pressure over neck and chest, contributed by head injury.
8. After completion of investigation, accused-appellant was charge- sheeted for offence under Sections 302 and 377 IPC, vide charge-sheet Ex. Ka-12.
9. Trial Court framed following charges under Sections 302, 377 IPC against accused-appellant:
**eSa txnh'oj flag] vij l= U;k;k/kh'k@fo'ks"k U;k;k/kh'k] pUnkSyh] vki vfHk;qDr %& 1⪫ dqekj frokjh ds mij fuEu vkjksi yxkrk gwW %& izFke %& ;g fd fnukad 8&1&2004 dks djhc 12-00 cts fnu xzke e>xoka ogn Fkkuk ukSx<+ ftyk pUnkSyh es vkius oknh jkevo/k ekS;Z ds iq= vf[kys'k dqekj mez djhc 12 o"kZ dks jke v/kkj xkSM+ ds [k.Mgj edku eas ys tkdj mlds lkFk LoPN;s k izdfr` dh O;oLFkk ds fo:) xqnk eSFkqu fd;kA bl izdkj vkius /kkjk 377 Hkk0na0fo0 ds vUrxZr ,d n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku eas gSA f}rh; %& ;g fd mDr frfFk] le; o LFkku ij vkius vf[kys'k dqekj ds lkFk vizkd`frd xqnk eSFkqu djus ds mijkUr mldh xyk nckdj rFkk iRFkj ls ekjdj gR;k dj fn;kA bl izdkj vkius /kkjk 302 Hkk0na0fo0 ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk vkidks vknsf'kr fd;k tkrk gS fd vkidk fopkj.k mijksDr vkjksikas ds vUrxZr bl U;k;ky; }kjk fd;k tk;xks A** “I, Jagdishwar Singh, Additional Sessions Judge/Special Judge, Chandauli charge you Sanjay Kumar Tiwari as under:-
Firstly:- That on 08.01.2004 at around 12:00 noon, at Village Majhgavan under P.S. Naugarh, District Chandauli, you committed carnal intercourse against order of nature on Akhilesh Kumar, aged about 12 years, son of complainant Ram Awadh Maurya at the dilapidated house of Ram Ram Adhar Gaur and thereby committed an offence punishable under Section 377 IPC within the cognizance of this Court.
Secondly:- That on the aforesaid date, time and place, after committing carnal intercourse against order of nature on Akhilesh Kumar, you committed his murder by strangulating and by assaulting with stone and thereby you committed an offence punishable under Section 302 IPC within the cognizance of the Court.
It is hereby directed that you shall be tried by this Court for the aforesaid offences.”
(English Transcription by Court)
10. So as to hold accused-appellant guilty, prosecution has examined eight witnesses. After prosecution evidence, statement of accused- appellant was recorded under Section 313 of Cr.P.C, wherein he has denied prosecution version and claimed false implication. In defence, DW-1 Shatish Chandra was examined.
11. After hearing and analysing evidence on record, accused-appellant was convicted under Sections 302, 377 IPC and sentenced as mentioned- above.
12. Being aggrieved by impugned judgment and order, accused-
appellant has preferred present appeal.
13. We have heard Sri Devendra Pratap Singh, learned Amicus Curiae for appellant and Sri Ratan Singh, learned Additional Government Advocate for State-respondent.
14. Learned Amicus Curiae for accused-appellant has contended that:
(i) there is no eye witness account to the alleged incident and no incriminating circumstance has been proved against accused-appellant. Accused-appellant has been convicted merely on the basis of suspicion and chain of circumstances is not complete;
(ii) PW-1, Ram Awadh Maurya, is an interested witness while PW-2 Kumari Madhuri and PW-4 Umesh Kumar Modanwal are child witnesses and facts and circumstances show that they were tutored, thus, evidence of these witnesses is not reliable and it would be totally unsafe to rely on the statements of child witnesses;
(iii) there is delay in lodging FIR. As per prosecution version, alleged incident took place at around 12:00 noon and as per FIR, complainant came to know about murder of deceased at around 4:00 PM but FIR was lodged at 21:05 hours and these facts indicate that FIR was lodged after making consultation;
(iv) conduct of PW-1, Ram Awadh Maurya, is not natural as there is nothing to indicate that when other children have returned at home at around 12:00 noon , why he did not make inquiry about his deceased son and as per prosecution version, he made inquiry about his son at around 04:00 PM;
(v) there are serious contradictions and inconsistencies in the statements of witnesses;
(vi) police have not seized stone allegedly lying on mouth of deceased while it was an important piece of evidence.
15. Per contra, it was submitted by learned State counsel that deceased was last seen in company of accused-appellant; that circumstance of last seen has been established beyond doubt; that recovery of one 'Madhav Chalisa' booklet from spot, on which 'Sanjay Kumar Tripathi' was written, further establishes involvement of accused-appellant and that chain of circumstances is complete to conclude that it was none but accused- appellant who ravished and committed murder of deceased.
16. We have considered rival contentions of learned counsel for parties and perused the record.
17. In this case, there is no eye witness account of alleged incident and prosecution case is based on circumstantial evidence. It is well settled that though conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed offence.
18. In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:
Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accuses, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
19. In Joseph vs. State of Kerala, (2000) 5 SCC 197, Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-
16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
(Emphasis Added)
20. Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79. In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, Court has held:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
(Emphasis Added)
21. In State of U.P. vs. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.
22. In State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, Court was considering a case based on circumstantial evidence and while taking note of the well settled legal position, in Paragraph 9 and 10, observed as under:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
(Emphasis Added)
23. The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
24. In Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, case was based on last seen theory, Court discussed the principles in respect of evidentiary value and held in Paragraph 8 as under:-
"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
(Emphasis Added)
25. In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-
"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its Patna High Court CR. APP (DB) No.202 of 1996 dt.13- 03-2018 16/ 25 case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"
26. In Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43, Court noted down the circumstance with which it should be satisfied in a case based on circumstantial evidence alone. Para 10, 11 and 12 of the judgment are as under:-
"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be Patna High Court CR. APP (DB) No.202 of 1996 dt.13- 03-2018 17/ 25 consistent with the guilt of the accused but should be inconsistent with his innocence."
27. In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, it has been laid down that:-
"4. ..... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
28. From the aforesaid, it is clear that in a case based on circumstantial evidence, Court is required to evaluate circumstantial evidence to see that chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of accused. Needless to say whether chain is complete or not would depend on facts of each case emanating from evidence and no universal yardstick should ever be attempted. Principle that emerges from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on touchstone of law relating to circumstantial evidence laid down in above discussed authorities.
29. In present case, statement of complainant PW-1 Ram Awadh Maurya is to the effect that his son Akhilesh Kumar, aged 12 years, was a student of class 5th in school 'Geeta Shishu Mandir', Majhgavan, which is situated about quarter to two kilometres from his home. On 08.01.2004, Akhilesh Kumar went to his school at about 9:30 AM but school was found closed due to severe cold, thus, other students returned to their homes but his son did not return back. When deceased did not return till 4:00 PM, he and his family members made inquiry from other children, who were students of the said school and among them, Umesh Kumar and Kumari Madhuri told him that at around 12:00 noon, Akhilesh Kumar was returning from school with them and on the way near, dilapidated house of Ram Adhar Gaur, accused-appellant met them and took them on southern side of that house. There were 4-5 guava trees. After plucking guavas, accused-appellant sent other children from there but stopped Akhilesh there stating that they would come later. PW-1 further stated that accused-appellant is a characterless person. Earlier also he did obscene activities with children including girls. PW-1, Complainant, along with other persons reached dilapidated house of Ram Adhar Gaur and found that dead body of his son was lying in a room of that house and 40-50 kg stone was lying on his mouth and blood has spread around dead body of his son. He further stated that one passbook of 'Dugdh Utpadak Samooh', having name of 'Ajay Kumar Tripathi', who is elder brother of accused- appellant, one 'Hanuman Chalisa' booklet and one pen were also lying there. He stated that his son was done to death by strangulation and his shirt was lying tied at his neck.
30. Before examining PW-2 Kumari Madhuri, a child aged 10-11 years, Trial Court has put several questions to her to arrive at the satisfaction that she can understand questions and give rational answers. After recording its satisfaction, statement of PW-2 was recorded. She stated that she was a student of class 6th in 'Ram Nath Chaubey Uchhatar Madhyamik Vidhyalaya', Majhgavan while her younger brothers Manoj and Rakesh as well as Akhilesh (deceased) were students of nursery school, which was adjacent to her school and they all used to go and come at school together. On 08.01.2004, her brothers Manoj and Rakesh as well as deceased Akhilesh have gone to school but as it was declared a holiday, they were returning to their homes and at around 12:00 noon, when they reached the dilapidated house of Ram Adhar Gaur, they went on southern side of that house for eating guavas. Accused-appellant and some other boys were already eating guavas there and after enjoying guavas, accused-appellant asked them to go back from there and stated that he and Akhilesh would return later. PW-4 Umesh, Rakesh, Manoj and Pawan returned back to their homes while accused-appellant and Akhilesh remained there. At about 4:00 PM, father of Akhilesh Kumar came at her house and made inquiry for Akhilesh and she told him about the above-stated facts. Later on, in the night, she came to know that Akhilesh Kumar has died. She has reiterated that she has last seen Akhilesh with accused-appellant in alleged guava garden.
31. PW-3 Ram Narain Modanwal stated that on 08.01.2004, his daughter Kumari Madhuri and sons Rakesh and Manoj have gone to school but they returned back at about 12:30 PM to home. At around 4:00-4:15 PM, PW-1 Ram Awadh Maurya came to his house and made inquiry from his children regarding his son Akhilesh as he has gone to school with them.
32. Before examining PW-4 Umesh Kumar Modanwal, a child aged 12-
13 years, Trial Court has put several questions to him to arrive at satisfaction that he can understand questions and give rational answers to that questions and after recording his satisfaction, statement of PW-4 was recorded. PW-4 stated that at the time of alleged incident, he was a student of class 6th. On that day, at around 12:00 noon, his father sent him to Majhgavan for calling a barber for hair cutting. While he was going there, accused-appellant and his nephew Pawan Tripathi met him and accused-appellant stated him that they would also go there for hair cutting of Pawan. They all reached at Majhgavan but barber was not available and when returning home, they went to dilapidated house of Ram Adhar Gaur, as there were 6-7 guava trees. While they were eating guavas, his younger sister Kumari Madhuri and younger brothers Rakesh and Manoj as well as Akhilesh came there and they also started eating guavas. After eating guavas, accused-appellant asked them to go to home but stopped Akhilesh by stating that they would come later. As per PW-4, accused- appellant and Akhilesh remained there while they all returned back to home from there. On the same day at around 4:00 PM, father of Akhilesh came at his house and made inquiry about Akhilesh. PW-4 and his sister narrated him the entire version and in the night, he came to know that Akhilesh has been murdered.
33. PW-5 Ramesh Chandra Maurya stated that he along with PW-1 Ram Awadh Maurya and Shanker has gone to house of Narayan Saav to make inquiry about Akhilesh as he used to go to school with children of Narayan Saav. There, Kumari Madhuri, Rakesh and children of Narayan Saav told that when they were returning from school at about 12:00 noon, near dilapidated house of Ram Adhar Gaur, accused-appellant was eating guavas and they also stopped there for eating guavas and after that, accused-appellant stopped Akhilesh while other children were made to flee from there. PW-5 further stated that in the past, accused-appellant has done obscene activities with several girls of village. Thereafter, he along with Complainant and other persons reached the dilapidated house of Ram Adhar Gaur and found that dead body of deceased was lying thereat and shirt of deceased was lying tied to his neck and a 40-50 kg stone was lying on his mouth and blood was spread around dead body of Akhilesh. He further stated that one diary of 'Dugdh Utpadak Samooha', one 'Hanuman Chalisa' booklet, one 'Madhav Chalisa' booklet and one pen were also lying there. Thereafter, police was informed. Police have reached the spot but as it was quite late in night, it conducted proceedings on next day. Police have seized alleged passbook of 'Dugdh Utpadak Samooha', having name of 'Ajay Kumar Tripathi', who is elder brother of accused-appellant, one 'Hanuman Chalisa' booklet, one pen and one 'Madhav Chalisa' booklet, having name of accused 'Sanjay Kumar Tripathi' from the spot vide seizure memo Ex. Ka-2.
34. PW-6 Dr. R.K. Gupta has conducted postmortem on dead body of deceased and has duly proved postmortem report Ex. Ka-6.
35. PW-7 S.I. Nirmal Chandra Shukla has conducted investigation, while PW-8 H.C. Lal Mohar Ram has recorded FIR.
36. DW-1 Shatish Chandra stated that on 09.01.2004, he has medically examined accused-appellant Sanjay Kumar Tripathi vide MLC Ex.Kha-1 and following injuries were found on his person:
(i) Small lacerated wound of size about 1.2 cm x 1.2 cm in front of lt. leg in middle of upper left of leg.
(ii) Bruise of size about 2.3 cm x 1.0 cm area rt. side of face in cheek area.
(iii) Bruise of size about 4.0 cm x 2.5 cm area middle of lt. side of back.
(iv) Bruise of size about 2.5 cm x 2.5 cm area middle of lt. side of back.
(v) Pain in all over body.
37. Close scrutiny of evidence shows that one of the circumstance against accused-appellant is that deceased was last seen in his company. PW-2 Kumari Madhuri as well as PW-4 Umesh Kumar Modanwal have made clear and cogent statements in this regard. Though they were child witnesses, aged around 12 years, but after perusing their statements, it is clear that Trial Court has recorded its satisfaction that they were competent enough to make statements. There are no reasons to doubt the satisfaction of Trial Court.
38. The principles for appreciating testimony of a child witness are well-enunciated by stream of decisions of Apex Court. In Suryanarayana v. State of Karnataka, 2001, (9) SCC 129, Court held as under:-
"The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of P.W. 2 cannot be discarded only on the ground of her being of tender age. The fact of P.W. 2 being a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."
39. The above position finds echo in Ratansinh Dalsukhbhai Nayak Vs. State of Gujrarat, 2004 (1) SCC 64 (See pp 67-68 paras 6 and 7).
"Pivotal submission of the appellant is regarding acceptability of PW-11's evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease -
whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J. in Wheeler v. United States (159 U.S. 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka (2001 (1) Supreme 1).
40. In Dattu Ramrao Sakhare v. State of Maharashtra, 1997 (5) SCC 341, it was held:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored".
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
41. The position of law relating to evidence of a child witness has also been dealt with in Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, 2008 (12) SCC 565 and Golla Yelugu Govindu v. State of Andhra Pradesh, 2008 (4) SCALE 569. In State of UP vs Krishna Master & Ors., (2010) 47 OCR (SC) 263, Court has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence.
42. Keeping in view the above exposition of law, in present case it may be seen that PW-2 Kumari Madhuri and PW-4 Umesh Kumar Modanwal, who are child witnesses, have made clear and cogent statements. It is not disputed that deceased Akhilesh as well as children of PW-3, namely, Manoj and Rakesh were students of 'Geeta Shishu Mandir' while PW-2 Kumari Madhuri was a student of class 6th of school 'Ram Nath Chaubey Uchhatar Madhyamik Vidhyalaya', Majhgavan and school of Akhilesh, Manoj and Rakesh is adjacent to her school. PW-2 stated that she and her brothers used to go school and come back to home together and Akhilesh was also used to go and come with them. Both PW-2 and PW-4 have been subjected to lengthy cross-examinations but they remained firm and no major contradiction or infirmity could emerge. There is absolutely nothing to show that they were tutored witnesses. After perusal of their cross-examinations, we are also of the view that these witnesses were competent enough to make statements in Court. No material contradictions or inconsistencies could emerge in their cross- examinations. In fact it was on their information, that complainant came to know that deceased was last seen with accused-appellant near alleged dilapidated house of Ram Adhar Gaur. Thereafter, complainant reached the said house and found dead body of deceased lying there.
43. Examining from all angles, it is manifest that evidence of PW-2 and PW-4 could not be shattered and their version is consistent and credible. There is absolutely no reason as to why these witnesses would depose falsely against accused-appellant. PW-2, PW-3 and PW-4 were not related to Complainant. They are only residents of same village. Version of these witnesses appears to be quite natural and trustworthy. On the basis of evidence on record, it is established that deceased was last seen in the company of accused-appellant at about 12:00-12:30 PM near dilapidated house of Ram Adhar Gaur and thereafter, no one has seen deceased alive.
44. In view of these facts, it was incumbent upon accused-appellant to offer an explanation as to how deceased was ravished and done to death. Only explanation offered by accused-appellant is that on the day of incident, some persons have asked for his diesel pump and when he refused, he was beaten and implicated in this case but accused-appellant has neither clarified as to when and at what time alleged incident took place nor who has demanded his diesel pump. His version is quite vague and lacks cogency.
45. Though as per statement of DW-1 Shatish Chandra, it appears that accused-appellant has sustained some injuries but when complainant and his well wishers came to know about involvement of accused-appellant, may be, he might have been given some beatings but there is absolutely no basis that any dispute took place over issue of some diesel pump. Accused-appellant has not examined any witness in support of alleged defence theory. It is not disputed that deceased was ravished and done to death, brutally. There are absolutely no reasons that family members of these witnesses would tutor PW-2 and PW-4 to depose falsely against accused-appellant. This fact is not disputed that school of PW 2 adjoining the school of deceased and she along with her brothers and deceased used to go together to the school. Statement of PW 4 is also clear and cogent.
There is nothing that these witnesses or their family members have any enmity or grudge against accused-appellant. From cross-examinations of these witnesses, there appear no possibility that they are tutored witnesses. In view of all attending facts and circumstances, PW-2 and PW-4 appear to be very natural truthful witnesses and their statements inspire confidence. There was absolutely no reason, why these witnesses would depose falsely against accused-appellant. They have stood test of cross-examination and statement of PW-2 is consistent with PW 4. In view of all these facts, we have no reasons to doubt credibility of these witnesses. We find no force in the arguments advanced by learned Amicus Curiae for accused-appellant.
46. Considering entire facts and circumstances of case, it is apparent that the circumstance that deceased was seen with accused-appellant has offered a false and concocted explanation that some dispute had taken place over issue of diesel pump and he was falsely implicated in this case on that account. Here it would be relevant to mention that time gap between last seen of deceased with accused-appellant and recovery of dead body is not much. It is apparent from evidence that deceased was last seen with accused-appellant at alleged ruined house of one Ram Adhar Gaur at about 12:00-12:30 PM and dead body of deceased was recovered at around 4:00-4:30 PM. In view of aforesaid, it is established that the deceased was seen alive with accused-appellant at alleged spot at around 1200-12.30 noon.
47. Next circumstance relied upon by prosecution is that near dead body of deceased, one passbook of 'Dugdh Utpadak Samooh', having name of Ajay Kumar Tripathi, who is elder brother of accused, was found at the spot and in that passbook there was entry of supplying milk on 08.01.2004 at 5:00 PM. It is not in dispute that Ajay Kumar Tripathi is elder brother of accused-appellant. Further 'Madhav Chalisa' booklet having name of accused-appellant Sanjay Kumar Tripathi was also seized from spot and on last page of it words 'SKT', was found written. This 'SKT' also appears initials of the name of accused-appellant Sanjay Kumar Tripathi. It is not the case of accused-appellant that alleged passbook and 'Madhav Chalisa' do not belong to him. Recovery of these articles has been established by statements of PW-1 as well as PW-5. Recovery memo Ex. Ka-2 has been duly proved. Both PW-1 and PW-5 have been subjected to lengthy cross-examinations but no material contradictions or inconsistencies could be shown. Recovery of above- stated articles further indicates involvement of accused-appellant in incident.
48. So far as argument regarding delay in lodging FIR is concerned, it is well settled that if delay in lodging FIR has been explained from evidence on record, no adverse inference can be drawn against prosecution merely on ground that FIR was lodged with delay. There is no hard and fast rule that any delay in lodging FIR would automatically render prosecution case doubtful. In "Ravinder Kumar & Anr. Vs. State of Punjab", (2001) 7SCC 690, Court has held that:-
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
49. In "Amar Singh Vs. Balwinder Singh & Ors." (2003) 2 SCC 518, Court held that:-
"In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.
50. In this connection it will also be useful to take note of following observation made in Tara Singh V. State of Punjab reported in 1991 Supp (1) SCC 536:
“The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case."
51. In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held that:-
"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."
52. From above law, it is manifest that case of prosecution cannot be rejected solely on the ground of delay in lodging FIR. Court has to examine explanation furnished by prosecution for explaining delay. There may be various circumstances, particularly, number of victims, atmosphere prevailing at scene of incidence, complainant may be scared and fearing action against him in pursuance of incident that has taken place. If prosecution explains delay, Court should not reject case of prosecution solely on this ground. Therefore, entire incident as narrated by witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to root of case of prosecution and if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it was observed by the Supreme Court that in some cases, delay in registration of FIR is inevitable and same has to be considered. Even a long delay can be condoned if witness has no motive for falsely implicating accused.
53. In the present case, it is correct that alleged incident took between 12.00 noon to 4.00 PM. As per version of PW 1 when his son did not return back till 4.00 PM, he made inquiry from other students who used to accompany him to school. After he came to know that deceased was taken by accused-appellant at alleged dilapidated house, he went there and saw dead body of deceased. It is correct that FIR was registered on 08.01.2004 at 21:05 hours but after seeing dead body of his 12 years son, who was ravished and brutality murdered, it is quite natural that he might have been in shock. It is not expected that he would immediately rush to police station to lodge FIR. Further distance of police station was shown as quarter to 2 kilometres km from spot. Considering all facts, it can not be said that there was undue delay in lodging FIR. The contention of learned Amicu Curaie has no force.
54. The evidence of PW 1 can not be doubted on the ground that he is interested witness. Deceased was son of PW-1, thus PW-1 is a natural witness of facts deposed by him. It is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless motive to give false evidence to spare the real culprit and falsely implicate an innocent persons is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness', as held in DalbirKaur v. St te of Punjab, AIR 1977 SC 472. The mere fact that witnesses were relat ons or interested would not by itself be sufficient to discard their evidece straight away unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of Court. In the present case, deceased was son of PW 1. As deceased did not return back from school by 4.00 PM while other children have returned, it was quite natural for PW 1 to make search of his son and to inquire from other child en, who used to go with deceased. When he came to know from other children that deceased was stopped by accused-appellant at the alleg d spot, he went there but found dead body of his son. On these aspec s, evidence of PW 1 is quite natural and reliable and he can not be terme an interested witness. Similarly, we find no force in the contention that onduct of PW 1 is unnatural.
55. Though PW-1 and PW-5 have also stated that accused-appellant is a person of loose character and earlier also he has done obscene activities with certain children including girls, however, previous bad character is not relevant evidence and therefore, it can not be considered as an incriminating piece of evidence against accused-appellant. However, from the post-mortem report of the deceased, it is clear that deceased was subjected to carnal intercourse against order of nature and thus, motive is also apparent.
56. Considering whole evidence in view of attending facts and circumstances of case, circumstance that deceased was last seen alive with accused-appellant and only a few hours, after dead body of deceased was found at same spot, and the fact that above-stated circumstances proved by prosecution clearly points to the guilt of accused-appellant. Chain of circumstances is complete and on the basis of circumstantial evidence, it is clear that it was accused-appellant and none else, who ravished and committed murder of deceased by strangulating him with his shirt.
57. Considering all aspects of case, we are of the view that conviction of accused-appellant is based on evidence and Trial Court was justified in convicting accused-appellant under Sections 302, 377 IPC.
58. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. Question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
59. In the instant case accused-appellant has been sentenced to imprisonment for life and fine of Rs. 10,000/- and under Section 302 IPC and rigorous imprisonment of seven years with fine of Rs. 5,000/- under Section 377 IPC. Applying principles laid down in aforesaid judgments and having regard to totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant Sanjay Kumar Tripathi by Trial Court vide impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in matter on point of punishment imposed upon him.
60. Resultantly, appeal is dismissed. Conviction and sentence of appellant-accused Sanjay Kumar Tripathi under Sections 302 and 377 IPC is affirmed. He is stated in jail and thus, he shall serve out remaining sentence.
61. A copy of this order along trial court record be sent to court concerned forthwith. A copy of this judgment be also sent to accused- appellant through Jail Superintendent concerned for intimation forthwith.
62. Before parting, we find it appropriate to place on record our commendation to learned counsel who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that he shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Devendra Pratap Singh, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date : 29.05.2019 Anand
(Raj Beer Singh) (Sudhir Agrawal)