State v. Mannu) under Section
Case Details
Neutral Citation No. - 2023:AHC:102546-DB Court No. - 47 Case :- CRIMINAL APPEAL No. - 2776 of 1988 Appellant :- Mannu Respondent :- State of U.P. Counsel for Appellant :- Tej Pal,Arvind Kumar Srivastava Ac Counsel for Respondent :- D.G.A. Hon'ble Ashwani Kumar Mishra,J. Hon'ble Vinod Diwakar,J. 1. This appeal has been filed against the judgement and order dated 15.11.1988, passed by Additional Sessions Judge, Saharanpur in Sessions Trial No. 588 of 1997 (State vs. Mannu) under Section 302/376 IPC, Police Station Sarsava, District Saharanpur, by which the trial court has convicted the accused-appellant for life imprisonment under Section 302 IPC and seven years rigorous imprisonment under Section 376 IPC. All the sentences were directed to run concurrently. 2. A written report was made by the informant stating that on 15.09.1987 his daughter (deceased) aged 15 years had gone to the fields to fetch grass at about 11:00 in the morning. She did not return in afternoon, whereafter the informant, along with his wife and other family members, started searching her. Ultimately, her dead body was found in the field of Bhagwat Prasad and from the appearance, it appeared that she had been subjected to sexual assault. A request was made to lodge a report and take necessary steps. This report has been scribed by Suresh Chandra who has appeared as PW-3. The written report has been proved by PW-1 as Ex. Ka-2. 3. On the basis of such written report, a first information report came to be registered as Case Crime No. 102 of 1987, under Sections 302/376 IPC, Police Station Sarsava, District Saharanpur on 15.09.1987 at 8:00 pm. The distance between place of occurrence and the police station was about 4 kms. The investigation proceeded and blood-stained soil and plain earth was recovered from the place of occurrence and the recovery memo has been duly exhibited as Ex. Ka-11. The blood stained clothes of the deceased have also been recovered vide Ex. Ka-12. 4. The inquest was conducted on 16.09.1987 at 6:00 am, wherein the inquest witnesses opined that the deceased has been strangulated and injuries are also found on the body of the deceased. The inquest witnesses also found that a chunni had been used for her strangulation. In order to ascertain the cause of death, the body was sealed and sent for postmortem examination. The postmortem has been conducted by the autopsy surgeon on 16.09.1987 at 4:30 pm, wherein the time of death is reported to be one day. Rigor mortis had passed in both upper and lower limbs. The cause of death has been determined as asphyxia due to strangulation. 5. Following ante-mortem injuries have been found on the body of the deceased:- “1. Contused swelling all over the neck bluish-red. 2. Multiple abrasions with contusion on left side cheek below eye in an area of 9 X 3.5 cm. 3. Contusion on upper part of chest just above the breast in area of 23 X 7.5 cm. 4. Multiple abrasion in an area of 11 cm X 7 cm on front of chest, right side. 5. Abrasion with contusion about 3.5 cm X 0.5 cm on angle of jaw just below chin.
Legal Reasoning
6. Multiple abrasion on middle of back varying in size from 1 cm X ¼ cm to ¼ cm X ¼ in an area of 20 cm X 13 cms. 7. Contusion 3 cm X 1 cm obliquely placed on left lateral side of chest. 8. Multiple abrasion ¼ cm X ¼ cm in an area of 7 cm X 5 cm on left thigh inner and front side of it.” 2 of 18 6. Investigation proceeded and ultimately the accused-appellant was arrested on 22.09.1987 and on his pointing out, a necklace worn by the deceased has been recovered from the house of the accused-appellant vide Ex. Ka-3. The chain was of artificial gold which had pendants. The investigation ultimately concluded with submission of a charge-sheet against the accused-appellant on 28.10.1987, under Section 302 and 376 IPC. 7. The case was committed to the court of Sessions where it got registered as Sessions Trial No. 588 of 1987. The accused-appellant came to be charged with offence under Section 376 IPC for sexually assaulting 15-year old minor victim and under Section 302 IPC for intentionally causing death of the deceased. The charges were read out and explained to the accused, who pleaded not guilty and claimed to be tried. 8. The prosecution in order to prove its case produce following documentary evidence.:- (i) FIR (Ext. Ka-4). (ii) Written Report (Ext. Ka-2). (iii) Search Memo of House (Ext. Ka-3). (iv) Recovery memo of blood stained and plain earth (Ext. Ka-11). (v) Recovery memo of blood stained pieces of cloth (Ext. Ka-12). (vi) P.M. Report (Ext. Ka-1). (vii) Report of Vidhi Vigyan Prayogshala (Ext. Ka-16). (viii) Panchayatnama (Ext. Ka-6). (ix) Charge Sheel Mool (Ext. Ka-15). 9. In addition to the above, the prosecution has produced the testimony of Dr. Pradeep Singhal (PW-1) who is the Autopsy Surgeon and has proved the postmortem report. 10. PW-2 is Tara Chand, who happens to be the father of the deceased and is the first informant. 3 of 18 11. PW-3 is Suresh Chandra, who is the scribe of the written report and is a school teacher at Sarasava. He has stated that he saw the accused- appellant following the deceased when he was coming to the village from the school at about 11-11:15 in the morning. He has however, admitted that this fact was not disclosed by him to PW-1 till written report was scribed by him. When he later heard other villagers saying that they saw the accused following the deceased then he too stated that he saw the accused going after the deceased. He does not remember as to after how many days his statement was recorded under Section 161 Cr.P.C. 12. PW-3 is also from the same community. He has denied the suggestion that a false disclosure is made by him as he belongs to the same community. 13. PW-4 is Kabool Singh, who is also from the same village and has stated that he was having his bath on the tube well of Jagpal, where the accused was also having his bath. It was around 11:00 in the morning. The deceased was seen going towards her field and the accused immediately stopped bathing and after putting on his clothes, went after the deceased. He later come to know that the deceased has died. He claims that this fact was told by him to PW-1. In the cross-examination, he has stated that he later saw the accused at about 6:00 in the evening. He has also denied the suggestion that the witness is a close relative of the first informant or that he has given false deposition on account of close family relations with the first informant. 14. PW-5 is one Afla Singh, who claims to be ex-pradhan of the village and has alleged that the accused came to him and confessed that he had strangulated the deceased and had also exploited her. The deceased allegedly wanted PW-5 to save her. In the cross-examination, this witness has stated that the confession was made by the accused seven days after the incident and that he had never come to him earlier. He claims that he had informed PW-2 about the confession of accused. 4 of 18 15. PW-6 is Jogesh Kumar, who happens to be the brother of the deceased and was asked to go to the fields to look for the deceased. He claims to have returned from the school at about 11:00 am, as there was a function and reached home at quarter to 12:00. He states that his mother asked her to go to the field and on her instructions, the deceased had gone to fetch fodder for the cattle. He claims that when he reached the field he did not find his sister. He further claims that the accused came out of the sugarcane field and after seeing him, again went inside the field. He claims to have lifted the bundle of fodder and returned home. 16. PW-7 is Atar Singh, who is also resident of village and his agricultural field is next to field of Suresh and Bhagwat. This witness states that on the relevant date, he had seen accused coming out from the sugarcane field of Bhagwat in perplexed state. He states that this fact was disclosed by him three days after the incident to the Investigating Officer. He also states that he has contested the election for the post of pradhan, but had lost. In the cross-examination, he has admitted that he also belongs to Saini community, to which the informant hails. He has denied the suggestion that being from the same community, he is making a false implication. 17. PW-8 is one Sinu, who claims that he saw the accused washing his undergarments at about 1:30 pm on the tube well of Jagpal. He claims that he too washed his hands by the same lifebuoy soap. In the cross- examination, he has stated that his statement was recorded by the Investigating Officer three days after the incident. This witness has denied the suggestion that being the washer-man of first informant, he is making a false deposition. 18. PW-9 is the mother of the deceased, who too has supported the prosecution case, as per which, she returned from the field after getting fodder. She had left a bundle of fodder in the field and on return, asked her daughter to go and fetch it. She waited till 2:00 pm, but when her daughter did not return, she informed other family members, all of whom 5 of 18 made efforts to locate the deceased, whose dead body was ultimately found in the sugarcane field of Bhagwat. The chain worn by the deceased was not found on her. She also stated that deceased was done to death by strangulation from a chunni. She claims that Yogesh had told her husband that when he had gone to get the bundle of fodder, he saw the accused coming out of the field. In the cross-examination, this witness has explained the place of occurrence with reference to the neighbouring plots etc. She claims that she fainted after seeing the mortal remains. 19. PW-10 Sahiram is the witness of the recovery of artificial gold chain from the house of the accused appellant. He claims that he was taken by the Investigating Officer to the house of accused and the accused took out the chain from his house, in respect of which, a memo of recovery was prepared, of which he is the witness. In the cross- examination this witness has stated that he does not remember as to how many almirahs were kept in the house of the accused as he was only concerned with the chain. He also found a box, but did not remember whether there was any lock or whether the room had any door etc. He also stated that his statement was never recorded by the Investigating Officer. 20. PW-11 is Constable Nawal Singh, who has proved the inquest report and has also carried the dead body to the mortuary. 21. PW-12 is Gulab Nabi, who has proved the chick FIR. 22. PW-13 is S.S.Bhandari, who is the Investigating Officer in the case. He has stated that the FIR was lodged in his presence and he came to the place of occurrence, but it being dark, he could not Inspect the same. The inquest was undertaken on the next morning. He has proved the recovery of blood-stained and plain earth and also recorded the statement of various persons on 17.09.1987. He has also proved the recovery of artificial gold chain from the accused. This witness has prepared the site plan. In the cross-examination, he has stated that statement of Sahiram was recorded on 16.09.1987. In the cross-examination, this witness has 6 of 18 denied that he had arrested the accused on 15.09.1987. As per him the accused was arrested at 1:10 p.m. as per the arrest memo. This witness has also denied the suggestion that under the pressure of the villagers, the accused-appellant has been falsely implicated. 23. The aforesaid evidence led during trial by the prosecution was confronted to the accused-appellant, who denied his implication in the matter. He claims that all witnesses are from the same community and have joined hands to falsely implicate him. He has also submitted a written statement, as per which, he belongs to Nai community and that he is married. He claims that he is the only person from Nai community in the village. As per the accused-appellant, he was arrested from his house on 15.09.1987 at 9:00 pm, while he was having his meal and he was taken to Sarsava police station. He claims that most of the residents of the village are Saini and it was by the influential person of the said community that he was got arrested on the night of the incident. He claims that he remained in the police custody from 15.09.1987 to 22.09.1987 and was daily tortured and beaten by the police. 24. On 22.09.1987, a gold chain was kept in presence of the villagers and he was falsely implicated and challaned. On 23.09.1987, he claims that son of an influential person from the village posted in Delhi Police as D.I.G., exercised his influence on the local police and on his insistence, the accused-appellant has been falsely implicated. He has also stated that members of Saini community had conducted panchyat on two-three occasions and resolved to implicate the accused-appellant by making firm deposition against him. He has also stated that other boys from the village, namely Jameel and his sons as well as Tarachand and Mauda Harijan were also arrested, but on the asking of Vishal Chand Jain, they were all released except the accused-appellant, as he was very poor and the majority community wanted him to leave with his family. He has also stated that his parents were told that as there is no evidence against the accused-appellant, therefore, he would be released and for such assurance 7 of 18 alone, the parents of the accused did not lodge any report etc. with the higher authorities. However, no defence witness has been produced in the matter. 25. Trial court on the basis of evidence led by the prosecution in this case, found the accused-appellant guilty of committing sexual assault on the deceased and later strangulating her to death, so that she may not be able to make a complaint. The testimony of eye witnesses have been found reliable and trustworthy and based upon such testimony, the accused-appellant has been convicted and sentenced to life. 26. Sri Arvind Kumar Srivastava, learned Amicus Curiae appointed in the present case submits that accused-appellant has been falsely implicated as he belongs to a minority community of Nai in the village. He also submits that it is a case of circumstantial evidence, in which, the chain of events have not been connected by the prosecution so as to establish the hypothesis of guilt on part of accused-appellant. He further submits that the eye witnesses are not trustworthy and that the story of recovery of artificial gold chain is planted and an afterthought. Learned counsel also submits that neither the recovery of gold chain is proved nor the testimony of alleged witnesses about the accused following the deceased can be relied upon and therefore, the finding of guilt returned against the accused-appellant is unsustainable. 27. Ms. Archana Singh, on the other hand, submits that this is a case of brutal act on a minor girl, who has been subjected to sexual assault and then strangulated. Learned AGA submits that the statement of eye-witness having seen the accused-appellant following the deceased, coupled with recovery of artificial gold chain, clearly connects the accused-appellant with the offence. 28. Learned AGA also submits that the implication of accused- appellant in the offence is clearly substantiated on the strength of evidence adduced by the prosecution witnesses and since the finding of 8 of 18 guilt against accused-appellant is based on adequate material on record, therefore, the appeal merits no interference. It is also contended that chain of event is complete on account of statement of witnesses as well as recovery of artificial gold chain and therefore, the finding of guilt merits no interference. 29. We have heard learned counsel for the parties and perused the materials available on record. We have perused the lower court records also, except the police records relating to the recording of the statement of witnesses under Section 161 Cr.P.C. as the same is not available. 30. This is a brutal case of minor girl being subjected to sexual assault in her own village and later on murdered. The prosecution case is that the mother of deceased had gone to the fields in the morning and had prepared bundles of fodder for the cattle in the field. She came back home, leaving behind a pile of fodder in the field. The mother then asked the deceased to go to the field and get the fodder for the cattle. It is thereafter that the victim did not return. The brother of the deceased was later sent to locate the deceased, as she did not return after sufficient time. The other family members thereafter went looking for the deceased and ultimately found the dead body of the deceased at about 4:00 in the evening lying in the sugarcane field of Bhagwat. After the dead body was found, the inquest proceedings were conducted and the witnesses of inquest also found the deceased to have died on account of strangulation. The dead body was sealed and sent to mortuary. In the medical examination of the victim, it is found that she had several ante-mortem injuries on her body including injuries on her private parts, which in the opinion of the autopsy surgeon, clearly suggested sexual assault on her before she was strangulated. 31. From the evidence that has been produced by the prosecution, it is, therefore, clearly proved that the deceased was subjected to sexual assault and was later strangulated to death. The deceased accordingly died a homicidal dead. 9 of 18 32. The question to be examined in the facts of the case is whether the prosecution has been able to connect the accused-appellant with commissioning of the aforesaid offence so as to prove his guilt on the basis of evidence led in the matter. 33. We have carefully examined the evidence on record and it remains undisputed that there is no ocular testimony of the incident in this case. The case in hand is that of circumstantial evidence. The evidence available on record is in the nature of statement of eye-witnesses who have seen the accused following the deceased towards the field; confession made before the prosecution witness by the accused-appellant; recovery of a missing artificial gold chain of the deceased and its subsequent recovery from the house of the accused-appellant on his pointing out. All these circumstances have however, been challenged by learned Amicus Curiae on various grounds which needs examination by us. 34. The written report, which is on record, has been proved, as per which, the deceased had gone to the agricultural field to fetch fodder but had not returned and later on, her dead body was found in the field of Bhagwat Prasad. The written report also mentions that from the appearance, it looks as if the deceased has been subjected to sexual assault. None, however, is named as an accused in the FIR. So far as the oral testimony of witnesses to implicate the accused-appellant is concerned, we have noticed the statement of each of the witnesses carefully. 35. PW-2 is the informant and has fully supported the prosecution case in his examination-in-chief. He claims to have gone with his wife, son and other persons to locate his daughter and ultimately found her dead body at 4:00 pm. He has proved the written report. He has also identified the recovery of artificial gold chain, which he claims to have purchased from a fair and was worn by the deceased at the time of her death. Learned 10 of 18 Amicus Curiae points out that in the FIR, it is not mentioned that the deceased had worn any artificial gold chain which had gone missing. 36. So far as non disclosure of fact about wearing of artificial gold chain is concerned, the argument of the Amicus Curiae has not impressed us, inasmuch as the FIR is not supposed to be an encyclopedia of all facts in respect of commission of offence. What were the apparels worn by the deceased or what ornaments she had put on need not be narrated in the FIR. Not much advantage, therefore, can be claimed by the defence on account of the fact that details of missing artificial gold chain was not narrated in the FIR. However, we find that PW-2 has stated that the chain identified as belonging to the deceased was absolutely new and had no dust etc. on it. He however did not remember the name of the shopkeeper from whom he had purchased it. He has admitted that the fact about wearing of chain was not disclosed by him to the police. The statement of PW-2 would be relevant on other aspects, to which we shall refer to a little later. It is however, noticed that neither PW-2 has seen the incident nor has seen the accused following the deceased. 37. PW-3 in fact is the person who states that he saw the accused- appellant following the deceased while he was returning from the school. His statement has been carefully examined by us, as per which, it was a free day and therefore, he had returned early from the school. Though he claims that he saw the accused following the deceased, but this fact was not disclosed by him to the first informant even when he was scribing the written report. This omission is of some significance in evaluating the testimony of PW-3. PW-3 is a member of the same community and is a resident of the village. The fact that a young girl has been subjected to sexual assault in the village and strangulated to death is a serious incident and if he had seen the accused-appellant following the deceased at about 11-11:15 in the morning, he was expected to have disclosed this fact to the first informant. There is absolutely no explanation as to why this fact was withheld by PW-3 even when he was asked to scribe the written report. 11 of 18 PW-3 has also stated that he does not remember as to after how many days his statement was recorded by the police. The police papers are otherwise not available with the lower court record. 38. We, therefore, do not find the testimony of PW-3 to be inspiring in view of the important omission on his part in not narrating the crucial fact of accused following the deceased to the informant and not mentioning it in the written report. We also find that PW-3 is from the same community and has apparently good relations with the family of the deceased. Being a related and interested witness, his testimony otherwise requires careful scrutiny. 39. PW-4 is also a member of same community to which the informant belongs and has stated that he was having bath on the field of Jagpal along with the accused. He claims to have seen the accused-appellant leaving soon after seeing the deceased proceeding towards her field. He states that this fact was informed by him to the first informant on the date of incident in the evening itself. In the event this was so, there is no explanation as to why this fact was not mentioned in the FIR, which came to be lodged at 8:00 pm on the date of incident. This witness has also stated that the accused-appellant was seen in the village at 6:00 in the evening. He has denied the suggestion that the first informant is the cousin of his father, but has not disputed that he is from the same community. The status of PW-4 also would be that of her related witness, which requires careful scrutiny. 40. PW-5 is Afla Singh, who claims to be an ex-pradhan. As per him, the accused came on the seventh day of the incident and confessed his crime with the request to save him. He has also stated that on the very day when the accused had come to him, he was arrested by the police. He has, however, admitted that even when the accused-appellant confessed of his role, still he did not apprehend him. Much argument has been advanced by the counsel for the parties with regard to evidentiary value of testimony of PW-5. In order to better appreciate his statement, we would 12 of 18 like to notice the fact that the accused-appellant, in his statement under Section 313 Cr.P.C., has clearly stated that the police had apprehended him on the day of incident itself and he was kept in the police station Sarsawan from 15.09.1989 to 22.09.1987. Though this fact has not been proved by any defence evidence, but there is one material evidence in the form of statement of PW-2, which needs to be noticed at this stage. PW-2, who happens to be the father of the deceased and is the informant, has clearly stated that his statement was recorded by the police on the next day of the incident and the police kept coming almost everyday in the village. Various persons including Jameel and one member of the Scheduled Caste as well as a carpenter’s son had been apprehended. He has denied that the accused was arrested on the night of the incident. This witness, however, has clearly stated that those apprehended/arrested for investigation were later let off. The accused was arrested after 7-8 days. He has also stated that the accused-appellant was kept at the police station for 6-7 days. This part of the testimony of PW-2 is relevant and is reproduced hereinafter: दरोगा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा मे मेरा ब्यान लिया था। घटना से अगले दिन मेरारा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा ब्या जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरान लि(cid:14)या जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा था जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा। घटना से अगले दिन मेरा घटना जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा से मेरा ब्यान लिया था। घटना से अगले दिन मेरा अग(cid:14)े मेरा ब्यान लिया था। घटना से अगले दिन मेरा लिदन मे मेरा ब्यान लिया था। घटना से अगले दिन मेरारा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा " ब्या जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरान (cid:14)े मेरा ब्यान लिया था। घटना से अगले दिन मेरा लि(cid:14)या जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा था जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा पुलि(cid:14)स जा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराँच के लिये गाँव में आती जाती रही के मेरा ब्यान लिया था। घटना से अगले दिन मेरा लि(cid:14)ये मेरा ब्यान लिया था। घटना से अगले दिन मेरा गा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराँव में आती जाती रही में आती जाती रही आती ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा जा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराती ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा रही ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा के मेरा ब्यान लिया था। घटना से अगले दिन मेरा सम्बन्ध में जमील के लड़के को भी पुलिस ले गई। में आती जाती रही जमी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा(cid:14) के मेरा ब्यान लिया था। घटना से अगले दिन मेरा (cid:14)ड़के मेरा ब्यान लिया था। घटना से अगले दिन मेरा को भी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा पुलि(cid:14)स (cid:14)े मेरा ब्यान लिया था। घटना से अगले दिन मेरा गई। घटना से अगले दिन मेरा इसी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा case एक च के लिये गाँव में आती जाती रहीमा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरार के मेरा ब्यान लिया था। घटना से अगले दिन मेरा (cid:14)ड़के मेरा ब्यान लिया था। घटना से अगले दिन मेरा मोदा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा को भी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा पुलि(cid:14)स पकड़ कर (cid:14)े मेरा ब्यान लिया था। घटना से अगले दिन मेरा गई थी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा। घटना से अगले दिन मेरा ता जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरारा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा च के लिये गाँव में आती जाती रहीन्द बढ़ई के मेरा ब्यान लिया था। घटना से अगले दिन मेरा (cid:14)ड़के मेरा ब्यान लिया था। घटना से अगले दिन मेरा को भी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा पकड़ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा के मेरा ब्यान लिया था। घटना से अगले दिन मेरा लि(cid:14)ये मेरा ब्यान लिया था। घटना से अगले दिन मेरा इसी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा मा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराम(cid:14)े मेरा ब्यान लिया था। घटना से अगले दिन मेरा के मेरा ब्यान लिया था। घटना से अगले दिन मेरा सम्बन्ध में जमील के लड़के को भी पुलिस ले गई। में आती जाती रही पुलि(cid:14)स गा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरांव में आती जाती रही में आती जाती रही आई थी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा। घटना से अगले दिन मेरा यह ग(cid:14)त है कि पुलिस मन्नू लिक पुलि(cid:14)स मन्नू को घटना जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा की ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा रा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरात में आती जाती रही ही ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा पकड़कर था जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराने मेरा ब्यान लिया था। घटना से अगले दिन मेरा (cid:14)े मेरा ब्यान लिया था। घटना से अगले दिन मेरा गई। घटना से अगले दिन मेरा उपरोक्त व में आती जाती रहीा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराकी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा पकड़े मेरा ब्यान लिया था। घटना से अगले दिन मेरा हु ये मेरा ब्यान लिया था। घटना से अगले दिन मेरा (cid:14)ोगों को पुलिस ने बाद में छोड़ दिया था। को पुलि(cid:14)स ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा बा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराद में आती जाती रही छोड़ लिदया जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा था जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा। घटना से अगले दिन मेरा मन्नू 7-8 लिदन था जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराने मेरा ब्यान लिया था। घटना से अगले दिन मेरा पर रखा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा गया जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा। घटना से अगले दिन मेरा लिदन बा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेराद पकड़ा जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा गया जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा था जी ने मेरा ब्यान लिया था। घटना से अगले दिन मेरा। घटना से अगले दिन मेरा लि0र व में आती जाती रहीह " 6-7 Statement of PW-2 in the cross-examination clearly supports the 41. version of the accused that he had been kept in the police station for 6-7 days. Admittedly arrest of accused-appellant has been shown on 22.09.1987. He was produced before the Magistrate on 23.09.1987. The custody for 6-7 days at the police station was therefore, not possible after 23.09.1987. This could only be prior to 22.09.1987, as is the specific assertion of the accused-appellant. The admission by PW-2 that the accused-appellant was kept at the police station for 6-7 days clearly 13 of 18 supports the defence version that the accused was in fact taken in custody by the police prior to 22.09.1987. Once that be so, it would be impossible for the accused to go to PW-5 and make any confessional statement before him. We otherwise find substance in the argument of Sri Arvind Srivastava, learned Amicus Curiae that being an ex-pradhan PW-5 otherwise could not have helped the accused-appellant much in saving him from police and therefore, the very object of making confession before him is otherwise, doubtful. 42. PW-6 is the son of the first informant and brother of the deceased, who has stated that while he had gone to pick fodder from the field, he saw the accused coming out from the sugarcane field and he later went back. This statement, if taken on its face value, clearly suggest that the role of the accused was doubted and therefore, this was an important fact to be told to the informant and its non-narration in the written report raises doubt upon the authenticity of such statement. It is otherwise not clear as to when such disclosure was made to the I.O. 43. PW-7 has stated that he saw the accused-appellant coming out from the sugarcane field of Bhagwat in perplexed form. He also states that this fact was told by him to the Investigating Officer on the third day of the incident. If that was so, the police ought to have apprehended the accused on the same day and the fact that he was arrested after a week raises some doubt on the veracity of the version of PW-7. 44. Similarly PW-8 is also a washerman and has stated that he saw the accused-appellant washing his undergarments at about 11:30 in the afternoon. So far as his version is concerned, we find it somewhat unnatural for an accused who would have sexually assaulted a victim and strangulated her to come out immediately after the incident in the open in the village and start washing his dirty linen publicly. PW-8 is otherwise a washerman, who is working for the first informant and his testimony cannot be given much credence. 14 of 18 45. The other important chain of event as per the prosecution is the alleged recovery of artificial gold chain from the accused-appellant. This recovery is alleged to have been made after the accused-appellant was arrested on 22.09.1987. The only witness of this recovery is PW-10 Sahiram. 46. In the cross-examination, this witness has feigned ignorance of the features of the house of the accused from which the alleged gold chain was taken out by him. He has stated that his statement was never recorded by the Investigating Officer. This witness is also from the same community and though he has denied that he happens to be the nephew of the first informant, but close relations between the families are not disputed. There is no other witness of recovery of the gold chain. The fact about gold chain having gone missing is not disclosed in the written report, although not much will turn on it. What is, however, relevant is that at stage of the investigation, the fact about missing chain or its feature has not been disclosed to the Investigating Officer. There is no identification exercise undertaken in respect of the gold chain. The gold chain is otherwise found to be new and has been identified by the informant without any previous exercise undertaken in respect of establishing its identity or even disclosure that such chain had gone missing. 47. In a case of circumstantial evidence, it is by now well-settled that onus to establish that the chain of events pointing only to the hypothesis of guilt of accused rests upon the prosecution. The prosecution is also expected to prove that no other hypothesis is available and that the evidence adduced is such that it leads to only one hypothesis i.e. guilt of accused. 48. Law with regard to the principles to be followed for conviction in a case of circumstantial evidence has been summed up by the Supreme Court in Sharad Birdichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, which has acquired the status of a locus 15 of 18 classicus on the issue. The judgment has been followed recently by the Supreme Court in Nagendra Shah vs. State of Bihar, (2021) 10 SCC 725 for applying the five golden principles to observe as under in paragraph 17 of the judgment:- "17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , in para 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Para 153 reads thus : (SCC p. 185) "153. 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 Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] wherein the following observations were made : (SCC p. 807, para 19) ''19. ... Certainly, it is a 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 accused, 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." 16 of 18 49. We have already noticed that this is a case based on circumstantial evidence and law with regard to establishment of guilt based on circumstantial evidence has been well settled Sharad Birdichand Sarda (supra). The Supreme Court has evolved five golden principles to be established in a case of circumstantial evidence. The principle is that the chain of events must be connected by the prosecution such that it leads only to the hypothesis of guilt of the accused and that no alternative hypothesis exits. It is also required that no hypothesis consistent with the innocence of accused is shown to exist in the facts of the case. In the light of the law settled on the issue, when we analyse the facts of the present case, we find that the evidence produced by the prosecution is not convincing and even if taken on its face value, it could merely create suspension or doubt with regard to implication on the accused-appellant. 50. It is not a case where anyone has seen the deceased lastly going with the accused-appellant. The testimony of eye witnesses who claim to have seen the accused-appellant following the deceased has not been found trustworthy. The recovery of artificial gold chain is also doubtful, particularly as neither it was ever reported to police that the chain has gone missing nor the details of the chain were ever specified. It is only after the alleged recovery of gold chain that the same has been identified without any previous exercise undertaken to establish the identity of the chain. 51. In the considered opinion of this Court, merely on the strength of evidence produced by prosecution, it would not be safe to rely upon the evidence led by the prosecution to return a finding of guilt beyond doubt against the accused-appellant. The accused-appellant is, therefore, held entitled to the benefit of doubt in the matter. 52. The appeal, consequently succeeds and is allowed. The judgment and order passed by the court below dated 15.11.1988, convicting and sentencing the accused appellant, is set aside. The appellant shall be set at 17 of 18 liberty forthwith, if he is not wanted in any other case, subject to compliance of Section 437-A Cr.P.C. 53. Learned Amicus Curiae has ably assisted the Court in deciding the appeal, therefore, he is entitled to his fee as per the rate settled by the High Court Legal Services Committee. Order Date :- 11.5.2023 Ujjawal 18 of 18