State of U.P v. Santosh Kumar Gupta), arising out of Case Crime No
Case Details
1 Neutral Citation No. - 2023:AHC:188506-DB Court No. - 46 Case :- CRIMINAL APPEAL No. - 4924 of 2012 Appellant :- Santosh Kumar Gupta Respondent :- State of U.P. Counsel for Appellant :- P.K. Rao,Arbaz Danish,Rajesh Kumar Singh,Rajesh Kumar Srivastava,Virendra Kumar Srivastava,Zia Naz Zaidi Counsel for Respondent :- Govt. Advocate Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J. 1. This criminal appeal has been filed against the judgment and order dated 12.11.2012, passed by Additional Sessions Judge, Court No.2 District Agra in Session Trial No.859 of 2009 (State of U.P. Vs. Santosh Kumar Gupta), arising out of Case Crime No.755 of 2009 under Sections 376, 302 and 201 IPC., Police Station- Tajganj, District Agra, whereby the accused-appellant Santosh Kumar Gupta has been convicted and sentenced to life imprisonment alongwith fine of Rs.20,000/- under Section 302 IPC.; ten years imprisonment and fine of Rs.20,000/- under Section 376 IPC; five years imprisonment and fine of Rs.5000/- under Section 201 IPC and on failure of deposit of fine to undergo additional imprisonment of five months. All punishments are to run concurrently. 2. The record reveals that a written report (Ex.Ka-1) is made by the informant Rajendra Kushwaha @ Pappu (PW1) to the officer incharge, Police Station Tajganj Agra stating that he is a resident of House No.33/35-E Lacchipura, Vibhav Nagar, Police Station Tajganj. Accused Santosh Kumar son of Rajkumar Gupta resident of House No.266, Shastri Nagar, Police Station Shastri Nagar Patna (Bihar) is his tenant and pursuing Hotel Management Course in Heritage School of Management. On 13/14.08.2009 the accused was sleeping in his room while the informant alongwith his wife Guddi Devi was sleeping in their adjoining 2 room, the door of the room was open and his daughter Pooja (deceased) aged about 10 years was sleeping on the cot outside the room in the Verandah. At 2:30 in the night, the accused came out of his room and the informant as well as his wife thought that he had come to urinate, but when the accused again started washing his hands and feet about 45 minutes later, then the informant came out of his room alongwith his wife and asked the accused as to why he has woken up so early. The accused got perplexed and his undergarment had blood clots on it; the informant found that his daughter Pooja was not on the cot. The informant inquired about his daughter and in between Udal Singh son of later Sri Vasudev and two younger brothers of informant namely Rajkumar (not produced) and Bachhu Singh (PW-2) also came there. The accused stated that he doesn't know where is deceased and tried to flee. On apprehension the informant with the help of others apprehend the accused and found in his room a blood stained gamcha (scarf). On further queries the accused confessed that he had committed rape on the daughter of the informant and killed her. The dead body had been thrown in the drain near Heritage School. During this questioning Kashi Ram son of Gaya Prasad (PW-6), Jitendra Singh and other residents of the locality also come on the spot. The accused, after committing rape on his daughter, has killed her and has concealed the dead body somewhere. This incident has generated lot of unrest and anger amongst the residents of the locality and the public order has been breached, women and children are in a state of fear and have locked their doors. Accused has been brought to the police station with a request to trace out the dead body and to do the needful. Contents of the written report was recorded in the General Diary and thereafter Case Crime No.755 of 2009 was registered in respect of the incident under Sections 376, 302 and 201 IPC against the accused appellant Santosh Kumar. 3. Investigation proceeded and a blood stained vest and underwear of the accused was recovered vide Ex. Ka-2. This recovery memo has been proved by the informant and Rajkumar. Informant has appeared as PW-1, 3 while Rajkumar is not produced. Vide Ex. Ka-4 a recovery memo of the dead body has been prepared, as per which the accused during interrogation informed that he has committed rape upon the deceased, and thereafter thrown her dead body in the canal near Heritage institute. The accused also offered to get the dead body recovered, consequently the police personnels alongwith the accused came on a police jeep near the culvert at Vibhav Nagar. The jeep was stopped and the accused led the police party alongwith Kashi Ram (PW6) and Udal Kushwaha (not produced) and took out the body of deceased from the canal in front of the graveyard. The accused also identified the dead body as that of the deceased. The recovery memo of the dead body of deceased accordingly has been drawn and two witnesses of it are Kashi Ram (PW6) and Udal Kushwaha (not produced). Vide Ex.Ka-4 (appears to have been wrongly numbered) a red colour scarf has also been recovered from the room of the accused which had bloodstains on it. The recovery memo in that regard has been verified by the informant and Rajkumar (not produced). The Investigating Officer also prepared recovery memo (Ex.Ka-5) of certain hairs stuck in the hands of the deceased as also a piece of red colour cloth and kept in a separate bundle. Ex. Ka-5 has been proved by Bachhu Singh Kushwaha (PW2) and Ashok Kumar (not produced). 4. The clothes worn by the deceased have also been recovered and kept in a bundle which has been proved by PW2 and Ashok Kumar (not produced) as Ex.Ka-6. The hairs of the accused were also recovered as Ex. Ka-7. Inquest has been prepared and exhibited as Ka-3, as per which, the dead body has been recovered from the drain in front of the graveyard. Inquest has been concluded at 10:00 in the morning. In order to ascertain the cause of death the inquest witnesses opined that postmortem be conducted of the deceased. The postmortem has been conducted on 14.08.2009, at 4:45 pm, and the autopsy surgeon found that cause of death of deceased was asphyxia, as a result of following ante-mortem injuries:- “1. Contusion 2 x .5 cm left side middle of neck. 4 2. Contusion 1x .5 cm right side middle of nose. 3. Multiple interrupted abrasion in an area 3.5 cm x 3 cm left side upper part of neck. 4. Multiple interrupted abrasion in an area 3.5 x 3 cm in oval shape, over right side cheek. 5. Laceration of vagina 1 x .3 cm lower part. 6. Laceration of vaginal mucus membrane. 7. Abrasion 1 cm to .8 cm both side inner aspect of vagina.” 5. The approximate time of death has also been specified as 3/4 days and the age of the deceased was assessed at around 10 years. Report of the Forensic Science Lab, Agra has also been produced, as per which, human blood has been found on the vest of the accused. The hairs recovered from the hands of the deceased have, however, not matched with the hairs of the accused. As per the FSL report and semen was found on the undergarment of the deceased. The FSL report has been exhibited as Ex. Ka-18 and 19. On the basis of investigation concluded in the matter a charge-sheet came to be submitted against the accused under Sections 376, 302 and 201 IPC on 21.08.2009. Cognizance was taken in the matter and case was committed to the Court of Sessions, where it got registered as Session Trial No.859 of 2009. The concerned court of Sessions framed charges against the accused under Sections 376, 302 and 201 IPC on 13.11.2009. The charges were explained to the accused who denied his accusation and demanded trial. 6. Trial thus commenced. Following documentary evidence has been adduced by the prosecution:-
Legal Reasoning
“1. First Information Report Ex. Ka-8. 2. Written Report Ex. Ka-1 5 3. Recovery Memo of “Baniyan” & Underwear, Ex.Ka-2. 4. Recovery Memo of Dead Body, Ex. Ka-4. 5. Recovery memo of Blood Stained ‘Angochha’, Ex.Ka-4. 6. Recovery Memo of Hairs & Piece of Cloth, Ex. Ka-5. 7. Recovery Memo of Frock & ‘Kachhi’, Ex.Ka-6. 8. Recovery Memo of Hairs, Ex. Ka-7. 9. P.M. Report, Ex. Ka-5. 10.Report of Vidhi Vigyan Prayogshala, Ex. Ka-18. 11. Report of Vidhi Vigyan Prayogshala, Ex. Ka-19. 12. ‘Panchayatnama’, Ex.Ka-3. 13. Chargesheet (Mool), Ex. Ka-13. 14. Site Plan with Index, Ex. Ka-11. 15. Site Plan with Index, Ex. Ka-12” 7. The informant, who happens to be the father of the deceased has been produced as PW-1 and his oral testimony is on record. He has supported the prosecution case, as per which the accused was a tenant in his house and was pursuing management course. The witness has disclosed that the accused woke up at about 2:30 in the night and he thought that accused may have gone to the toilet. The son and daughter of this witness were sleeping in the Verandah outside his room, while he was sleeping with his wife inside the room. The door of the room was open. After about 45 minutes he saw the accused washing his hands and feet and hearing the sound of water he came out alongwith his wife. The witness saw blood stains on accused’s vest and underwear. On being inquired as to from where he had come, the accused got perplexed, in between the witness found his daughter missing. As per PW-1, Rajendra Kumar, Jitendra and 6 Udal came and while the accused attempted to flee, he was apprehended by them. Inside the room of the accused a blood stained scarf was found. The accused confessed his guilt of committing rape and murder of the daughter of informant. In his further examination-in-chief, PW1 stated that accused has not disclosed the place where he had concealed the dead body. The report was got scribed by Anil Kumar, who happens to be the elder brother of the informant. PW1 has proved the written report (Ex.Ka-1), he has also proved Exts. Ka-2, Ka-3 and Ka-4. 8. In his cross examination, PW1 has stated that his daughter was studying in second standard. He was living alongwith his other brothers in the same house. He had gone to sleep at about 1:30 in the night inside the room. He has stated that earlier he never let out any room to students and the accused was the first to have been inducted as a tenant. The tenancy had commenced on 1/2nd of August and the accused started living in the house from 04.08.2009. He saw the accused washing his hands and feet at about 3:15 am. PW1 woke up on hearing the sound of the running water from the tap. He has further stated that between 2:00 to 3:15 he was sleeping. He inquired from the accused as to from where is he coming, and by then he had not noticed his missing daughter. He has stated that he came to the police station at about 7:15 in the morning and the written report was scribed by his brother Anil. He has further stated that he had not assaulted the accused, but it was members of public who had done so. He did not remember the names of all those who have assaulted the accused. 9. PW1 has clearly stated that accused had not disclosed the place where he had suppressed the dead body and that place was later disclosed by him to the police. Specific statement of PW1 in that regard in the cross examination is reproduced herein after:-. संतोष ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई छि(cid:13)पाने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई वाली छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई जगह मुझे नहीं बतायी बाद में पुलिस को बताई मुझे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई नह मुझे नहीं बतायी बाद में पुलिस को बताईी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईं बतायी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई बाद में पुलिस को बताई में पुलिस को बताई पुछिलस को बताई “ थी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई छिक मैं लड़की को उस स्थान से बरामद करा दूंगा।” लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई को उस स्थान से लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई बरामद में पुलिस को बताई करा द में पुलिस को बताईू ंगा।” ” 10. PW1 has further stated that when he apprehended the accused his vest 7 and underwear contained blood clots. About the place where the dead body had been concealed the witness has further stated as under:- संतोष ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई मुझे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई पूजा के लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई छि(cid:13)पाने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई का स्थान बता छिद में पुलिस को बताईया था ले लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईछिकन ह मुझे नहीं बतायी बाद में पुलिस को बताईम उसे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ले लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईकर उस “ स्थान पर नह मुझे नहीं बतायी बाद में पुलिस को बताईी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईं गये लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई।” बताये लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ह मुझे नहीं बतायी बाद में पुलिस को बताईु ए स्थान पर हमने खोज की थी लेकिन नहर में पर्याप्त स्थान पर ह मुझे नहीं बतायी बाद में पुलिस को बताईमने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई खोज की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई थी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ले लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईछिकन नह मुझे नहीं बतायी बाद में पुलिस को बताईर में पुलिस को बताई पया%प्त पानी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई आ रहा था इस कारण हमें पूजा नहीं मिली थी। पूजा की तलाश के लिये रह मुझे नहीं बतायी बाद में पुलिस को बताईा था इस कारण हमें पूजा नहीं मिली थी। पूजा की तलाश के लिये ह मुझे नहीं बतायी बाद में पुलिस को बताईमें पुलिस को बताई पूजा नह मुझे नहीं बतायी बाद में पुलिस को बताईी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईं छिमली छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई थी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई।” पूजा की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई तलाश के लिये के लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई छिलये लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई पछि+लक के लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई काफी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई लोग गये लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई थे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई।” ” 11. PW1 has also stated that the dead body was located around 8:30 to quarter to 9:00 and by the time the dead body was recovered, it was 9:00 o'clock in the morning. The accused was wearing a pant and shirt. 12. PW1 has further been cross examined and he has stated that the accused had stayed in his house as a tenant only for 15 days, and therefore, he had not taken any amount as rent from him. He has stated that he lastly saw the deceased at about 11:00 am on 13.08.2009. He has stated that the accused was locked inside the room and has denied the suggestion that since there was none to do parivi on behalf of the accused, therefore, he has been falsely implicated. 13. Bachhu Singh Kushwaha has been produced as PW2, who happens to be the brother of the informant. He has supported the prosecution case, as per which the deceased was sexually assaulted by the accused and later she
Decision
was done to death. The accused allegedly disposed of the dead body in the canal near the Heritage School. He has stated that when accused was washing his hands and feet, he saw blood stains on his vest and underwear. 14. PW2 has further stated that he was informed by Ratan Singh, PW3, that he saw the accused carrying the deceased in the night. He had woken up at about 3:15 in the morning. He came to know about the disappearance of the deceased when he woke up. PW2 has stated that the incident was informed to Anil Kumar at around 3:00 to 3:30 am, on phone. He has stated that the clothes of the accused were not sealed in his presence, his statement was recorded on 15.08.2009 at the police outpost. He has stated 8 that apart from the accused no other student lived as tenant in his house. PW2 has denied the suggestion that on account of student politics and ragging etc. the accused has been falsely implicated. He has also denied the suggestion that those responsible for false implication of accused are actually tenants living in his house. 15. PW3 is Ratan Singh, who claims that he woke up at about 3:30 in the night and saw the accused carrying the deceased in his arms. On inquiry, PW3 was informed by the accused that deceased is not well and he is taking her to the doctor. House of PW3 is next to that of the informant. In the cross examination, PW3 has clearly stated that the night incident in which he had seen the accused carrying the deceased was disclosed to the informant on the next day. PW3 has admitted that he is related to the informant. 16. PW4 is the Head Moharir, who has proved the G.D. entry in respect of the incident, as per him the written report was received at 6:45 am on 14.08.2009. 17. PW5 is Anil Kumar, who is the elder brother of the informant. He has proved the inquest report. In the cross examination he has stated that he came to know about the incident at around 4:00 in the morning when the deceased was not found at home. He came to the police station at around 6:30 in the morning, his statement was recorded while preparing the inquest. He came to the place where dead body was found at around 8:30 and a large crowd had already gathered there by then. 18. PW6 is Kashi Ram, who claims to have arrived at the house of the informant at 5:00 in the morning and saw the accused apprehended by Udal Singh, Bachhu and Rajkumar etc. Blood stains were found on the clothes of the accused. He has stated that dead body was recovered in his presence. 19. In cross examination PW6 has stated that he knows the informant for 9 years and is a close friend. He had reached the police station at about 6:30 in the morning, a large crowd of about 30 to 40 persons had already come to the police station. In the cross examination PW6 has stated that after the dead body of deceased was recovered, he arrived at the spot. The statement of PW6 in that regard is extracted herein after:- जब पूजा की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई लाश के लिये छिमल गयी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई थी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई तब मैं लड़की को उस स्थान से बरामद करा दूंगा।” उस जगह मुझे नहीं बतायी बाद में पुलिस को बताई पु ह मुझे नहीं बतायी बाद में पुलिस को बताईंच गया था उस समय काफी गया था उस समय काफी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई “ भी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईड भाड थी घर परिवार के कई व्यक्ति थे ओर लच्छीपुरा क्षेत्र के व्यक्ति भी भाड भाड थी घर परिवार के कई व्यक्ति थे ओर लच्छीपुरा क्षेत्र के व्यक्ति भी थी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई घर पछिरवार के लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई कई व्यछि2त थे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ओर लच्(cid:13)ी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईपु रा क्षे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईत्र के लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई व्यछि2त भी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई उपछिस्थत थे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई।” ” 20. PW6 has stated that accused had not made any disclosure in his presence. It is also stated that no clothes or other articles were recovered from the room of the accused. He has further stated that the police post at Vaibhav Nagar was surrounded and vandalized by public. The place where the body of deceased was found was located by 8:00 in the morning. 21. PW7 is Dr. Hansh Raj Singh, who has conducted the postmortem of the deceased and has found injuries on her private parts. He has clearly supported the prosecution case of sexual assault on 10 year old victim. 22. PW8 is the Investigating Officer, Indrajeet Singh, who has supported the prosecution case with regard to recovery of dead body on the pointing of the accused. He has also proved the charge-sheet filed in the case. He has also proved recovery of clothes of the victim and under garments of the accused. 23. PW 9 is Inspector, Raj Kumar Singh who has proved recovery of the dead body on the pointing out of the accused. As per him, the spot from where the dead body was recovered, lies in the jurisdiction of Police Station Cantt. 24. The evidence led, during trial, against the accused, was confronted to him for recording his statement under Section 313 Cr.P.C. The accused has denied that he was a tenant in the house of the informant, and has stated that the witnesses have made false statement against him. The accused, 10 however, has admitted that he was pursuing course in the Heritage School. In reply to the last question, the accused has stated that he had a fight with the students of Heritage School as well as other boys of the locality. These persons were known to the informant. These students had also threatened him earlier, in respect of which, complaint was made to the police and the administration. He has stated that he was arrested from the school on 14.08.2009 and has been falsely implicated in this case. 25. On behalf of the accused, the solitary witness produced is one Hari Babu (DW-1). As per him, the deceased was found in the bushes near grave, and that the deceased had disappeared about a day prior to the incident. As per DW-1, information of the recovery of dead body was given at the police outpost which fell in Police Station-Sadar. He has stated that on the day when the deceased had disappeared, there was no tenant residing in the house. He has also stated that the accused was never seen in the house of the informant earlier. He had come with Udal Singh to give his statement. He has stated that the accused has been falsely implicated in this matter. The house of DW-1 is at a distance of 20-22 paces from the house of the informant. The daughter-in-law and brother of DW-1 had been sent to jail, and it was there that he came to know that the accused has been falsely implicated. He has also stated that he has appeared to testify in the present case as defence witness, on the asking of Udal Singh. 26. The trial court, on the basis of evidence, led in the matter, has come to the conclusion that the chain of events have been successfully connected by the prosecution, which clearly implicates the accused, and that his guilt has been established beyond reasonable doubt. The accused has consequently been sentenced as per above. Aggrieved by the judgement of conviction and sentence, the accused has preferred present appeal. 27. Ms Zia Naz Zaidi, learned counsel for the appellant, submits that the accused appellant has been falsely implicated in the present case, and that the chain of circumstances have not been connected by the prosecution, in order to establish hypothesis of guilt, attributed to the accused-appellant. 11 She further submits that evidence on record is wholly deficient to return a finding of guilt against the accused-appellant. 28. Mrs Archana Singh, learned counsel appearing for the State, on the other hand, submits that it is a case of brutal sexual assault and murder of a ten years’ old girl and the guilt of the accused-appellant has been clearly established. 29. It is in the context of above submissions that we are required to determine whether the guilt of the accused has been established, beyond reasonable doubt, in the present case or not? 30. The evidence on record clearly indicates that the deceased was a ten year old minor girl, who has been sexually assaulted, and later killed. Postmortem report clearly shows existence of multiple injuries on the private parts of the deceased. She died on account of ante-mortem injuries. The postmortem report has also been proved by PW 7, who has clearly opined that the deceased was subjected to sexual assault, and the cause of death was asphyxia as a result of ante mortem injuries. The inquest also proves existence of injuries on the deceased. The testimony of the witnesses, coupled with medical evidence on record, leaves no room of doubt that the deceased has been subjected to sexual assault, and was later on killed. The death of the deceased, therefore, is found to be a case of homicide. 31. Gist of prosecution evidence has since been noticed. From its perusal, it is apparent that there is no direct evidence available in the present case inasmuch nobody has actually seen the incident in which the deceased has been subjected to sexual assault and then killed. The evidence on record is in the nature of circumstantial evidence, and therefore, it has to be seen as to whether the prosecution has succeeded in establishing the chain of events, such that it supports the hypothesis of guilt attributed to the accused-appellant, and that no hypothesis consistent with innocence of the accused exists on record. 32. Before proceeding to dwell upon the evidence available on record in 12 the case, it would be appropriate to refer to the judgement of Supreme Court in the case of Sharad Birdi Chand Sarda Versus State of Maharashtra, 1985 SCR (1) 88, which has consistently been followed, in subsequent decisions, by Supreme Court. This judgement lays down five tests, which are required to be established by the prosecution to prove a case of circumstantial evidence. Paras-152 and 153 of aforesaid judgement are relevant and thus reproduced hereinbelow: “152. Before discussing the cases relied upon by the High Court, we would like to cite a few decisions on the nature, character and essential proof required in a criminal case, which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh (1952) 2 SCC 71. This case has been uniformly followed and applied by this Court in a large number of later decisions up- to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(1969) 3 SCC 198 and Ramgopal v. State of Maharashtra (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 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: 13 (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." 33. It is in the context of above law that evidence, in the facts of present case, is required to be carefully scrutinized. 34. The circumstances, which have been relied upon, by the prosecution, in order to establish the guilt of the accused are as under : i) Accused was a tenant in the house of the informant and was present in the night when the incident occurred; ii) PW-1 saw the accused, behaving abnormally, in the night hours, particularly when he was washing his hands and feet at about 3.15 a.m.; 14 iii) The disclosure by the accused that he had sexually assaulted the deceased, and thereafter killed her, and pursuant to such disclosure the dead body has been recovered in the morning hours of 14.08.2009; iv) Recovery of blood-stained scarf from the room of the accused- appellant which was similar to the piece of cloth found in the hands of the deceased; v) The under garments of the accused contained blood stains, and established his involvement in some physical activity, exposing him to human blood; vi) The testimony of the witnesses who saw the accused carrying the deceased at 2.30, in the night. 35. It is on the above circumstances that the prosecution proposes to establish the guilt of the accused-appellant. 36. So far as the circumstance of the accused, being a tenant, in the house of the informant, is concerned, there is no documentary evidence to show that the accused was a tenant in the house of the informant. There are no rent receipts. Informant (PW-1) has otherwise admitted that he had not received any amount, towards rent, from the accused. Oral testimony of prosecution witnesses, however, exists which categorically states that the accused was living as tenant, in the house of the informant for last about ten days. 37. The evidence on the aspect of the tenancy, apart from, oral testimony of witnesses also includes the site-plan which has been proved by the witnesses, as per which, the room of the accused was next to the house of brother of the informant, namely, Raj Kumar. The testimony of PW 1, PW 2 and PW 3 are consistent on the aspect related to tenancy of the accused- appellant. It is otherwise admitted to the accused that he was studying at Heritage Institute which was located close to the house of the informant. In such circumstances, the first circumstance with regard to the accused being a tenant of informant is proved. 38. We have carefully perused the records of the present appeal. It 15 appears on record that there was a conflict as to where exactly the report of disappearance of the deceased would be made inasmuch as the dead body was recovered within the territorial limits of Police Station Cantt., whereas the F.I.R. was lodged at Police Outpost Vibhav Nagar, Police Station Tajganj. Record also reveals that the members of public had surrounded the Police Outpost Vibhav Nagar, and the police property was vandalized. It appears that till then the dead body of the deceased had not been recovered. 39. The F.I.R. was lodged at 6.45 in the morning. PW 1, in his testimony, states that he came to the police station for lodging of the F.I.R., at 7.15 a.m. Written report, moreover, contains following statement: इस घटना से लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई मे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईरे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई मोह मुझे नहीं बतायी बाद में पुलिस को बताईल्ले लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई व क्षे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईत्र के लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई लोगों में आक्रोश व्याप्त है। लोक व्यवस्था में पुलिस को बताई आ रहा था इस कारण हमें पूजा नहीं मिली थी। पूजा की तलाश के लियेक् रोश के लिये व्याप्त ह मुझे नहीं बतायी बाद में पुलिस को बताईै।” लोक व्यवस्था “ छि(cid:13)न्न छिभन्न ह मुझे नहीं बतायी बाद में पुलिस को बताईो गयी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ह मुझे नहीं बतायी बाद में पुलिस को बताईै।” बच्च गया था उस समय काफीों में आक्रोश व्याप्त है। लोक व्यवस्था में पुलिस को बताई व मछिह मुझे नहीं बतायी बाद में पुलिस को बताईलाओं में पुलिस को बताई द में पुलिस को बताईह मुझे नहीं बतायी बाद में पुलिस को बताईश के लियेत व्याप्त ह मुझे नहीं बतायी बाद में पुलिस को बताईैं लड़की को उस स्थान से बरामद करा दूंगा।” लोगों में आक्रोश व्याप्त है। लोक व्यवस्था ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई अपने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई बच्च गया था उस समय काफीों में आक्रोश व्याप्त है। लोक व्यवस्था को घराॆ में बन्द कर दिया है।” में पुलिस को बताई बन्द में पुलिस को बताई कर छिद में पुलिस को बताईया ह मुझे नहीं बतायी बाद में पुलिस को बताईै।” ” The above narration, in the written report, indicates that the report itself was lodged, after due deliberation, particularly as routine expressions used by the police finds mention in the written report. 40. According to PW-1, he saw suspicious activity on the part of the accused inasmuch as the accused firstly woke up at 2.30, in the night, and was seen moving inside the house. PW-1 has categorically stated that he thought that the accused is going to toilet, therefore, the conduct of the accused was not doubted then. It was only at around 3.15 a.m. that the informant came out of his room when he saw the accused washing his hands and feet. According to PW-1, on coming to his room, he saw the accused in underwear and vest, which had blood-stains. It is then that PW 1 became a little suspicious, and found that his daughter, who was sleeping in the verandah, was missing. According to PW-1, Jitendra, Udal and Raj Kumar, etc. also came and apprehended the accused. They also found the blood-stained scarf on the cot of the accused. 41. According to the prosecution witnesses, the accused confessed his 16 crime of committing rape upon the deceased, and killing her. The exact time when such event had taken place, however, is not clearly reflected from the evidence on record. A more comprehensive evaluation of prosecution case would be desirable after other evidence are scrutinised. The recovery of dead body, on the pointing out of the accused, is an important evidence which needs to be analysed at the threshold as this is the most imporant circumstance to be relied upon against the accused. The F.I.R. version is that the accused confessed to the rape and killing of deceased and thrown the dead body in the drain. The dead body was hidden/concealed somewhere. In the chief-examination, PW-1 stated that the accused had suppressed the place where dead body was concealed. The exact statement of PW-1 is extracted hereafter. लाश के लिये को कह मुझे नहीं बतायी बाद में पुलिस को बताईा छि(cid:13)पाया नह मुझे नहीं बतायी बाद में पुलिस को बताईी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईं बताया।” “ ” In the cross-examination also, PW-1 stated as under: संतोष ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई लड भाड थी घर परिवार के कई व्यक्ति थे ओर लच्छीपुरा क्षेत्र के व्यक्ति भीकी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई छि(cid:13)पाने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई वाली छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई जगह मुझे नहीं बतायी बाद में पुलिस को बताई मुझे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई नह मुझे नहीं बतायी बाद में पुलिस को बताईी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईं बतायी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई बाद में पुलिस को बताई में पुलिस को बताई पुछिलस को बताई “ ”थी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई।” Contradicting himself on the above aspect the witness later stated that: संतोष ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई मुझे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई पूजा के लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई छि(cid:13)पाने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई का स्थान बता छिद में पुलिस को बताईया था ले लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईछिकन ह मुझे नहीं बतायी बाद में पुलिस को बताईम उसे लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ले लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईकर उस “ स्थान पर नह मुझे नहीं बतायी बाद में पुलिस को बताईी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईं गये लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई।” बताए स्थान पर हमने खोज की थी लेकिन नहर में पर्याप्त ह मुझे नहीं बतायी बाद में पुलिस को बताईु ये लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई स्थान पर ह मुझे नहीं बतायी बाद में पुलिस को बताईमने लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई खोज की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई थी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई ले लड़की छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईछिकन नह मुझे नहीं बतायी बाद में पुलिस को बताईर में पुलिस को बताई पया%प्त पानी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई आ रहा था इस कारण हमें पूजा नहीं मिली थी। पूजा की तलाश के लिये रह मुझे नहीं बतायी बाद में पुलिस को बताईा था इस कारण हमें पूजा नहीं मिली थी। पूजा की तलाश के लिये ह मुझे नहीं बतायी बाद में पुलिस को बताईमें पुलिस को बताई पूजा नह मुझे नहीं बतायी बाद में पुलिस को बताईी छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताईं छिमली छिपाने वाली जगह मुझे नहीं बतायी बाद में पुलिस को बताई।” ” 42. Testimony of PW-1 is not consistent on the aspect relating to disclosure by the accused of the place where the dead body had been concealed by the accused. Either the accused had disclosed the location where the dead body was thrown or he had not disclosed the location. Both versons, however, cannot simulataneously exist. The written report clearly states that the place where the dead body had been thrown was the drain near Heritage School. However, in oral testimony, PW 1 has stated that the place, where the dead body was dumped, has not been disclosed by the accused. The two versions are clearly in contradiction to each other. The other version of the informant is that he had tried to locate the dead body, but he could not find it. These three are mutually incompatible versions of the informant. 17 43. So far as PW-3 is concerned, we do not find his version to be worthy of reliance. PW-3 happens to be relative (Phupha) of the deceased. He lives near the house of the informant. He claims to have seen the accused, carrying the deceased, at 2.30, in the night, when he had gone to urinate. He claims that the accused informed him that he was taking the informant’s daughter to a doctor. PW 3, thereafter, went back to sleep. This version of PW-3 does not appear to be natural or believable. The statement that ten year old minor girl was being taken to the doctor, by the tenant, at 2.30, in the night while parents and other relatives were present in the house was not natural and ought to have generated suspicion and thus the version of PW-3 that he went to sleep is not believable. PW-3 otherwise acknowledges that this fact was disclosed by him to the informant only in the next evening. Such important incident was expected bound to generate doubt and the natural conduct of the witness would be to inform the family members/father about it and his version that he simply went to sleep, is not acceptable. We, therefore, do not consider it safe to rely upon the testimony of PW-3. 44. So far as PW 2 is concerned, he happens to be brother of the informant. He lives in the same house along with informant. In his cross- examination, PW 2 has stated that along with the informant he also had gone to the police station for lodging the report along with the other brother Anil. However, PW 2 remained outside and had not entered the police station. He also does not know the questions that were posed to the accused by the Investigating Officer. He has stated that the dead body of the deceased was found around quarter to 9.00 a.m. PW-2 has been confronted with his earlier statement made under Section 161 Cr.P.C. wherein he claimed to have visited the place also at 2.30 a.m.This witness has not stated anything categorical about the incident, and has merely followed the version of PW-1. Not much turns on the testimony of PW-2. 45. Although, it is the prosecution case that the accused had confessed 18 his crime, and had also volunteered to provide the dead body, but there is no panchanama, prepared by the police, in that regard. What exactly was disclosed, by the accused, at the police station, is also not specified. In this regard, it would be relevant to refer to a recent decision of Supreme Court in Boby Versus State of Kerala, 2023 SCC OnLine SC 50, wherein the Court has clearly interpreted the course expected to be followed, by the police, where it intends to rely upon the recovery, from the accused, under Section 27 of Indian Evidence Act. Paras 32 and 33 of the said judgement are reproduced hereinbelow: “32. A three-Judges Bench of this Court recently in the case of Subramanya v. State of Karnataka, 2022 SCC OnLine SC 1400, has observed thus: “82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus: “27. How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act. 84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he 19 would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” 33. This Court has elaborately considered as to how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama 20 being in accordance with the aforesaid requirement, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein).” 46. In the facts of the present case, we find that no such disclosure statement (panchnama) is prepared by the police. Two witnesses of the recovery have also not specifically narrated the contents of the disclosure allegedly made by the accused to the police. PW-1 and PW-2 are not specific about the information allegedly tendered by the accused which led to the recovery of dead body and there is contradiction in the version of PW-1 about the place where the dead body was hidden by the accused. 47. The only document, in respect of the dead body, is the recovery memo which is Ext. Ka-4. As per this Exhibit, the accused confessed to rape and killing of the deceased,whereafter the dead body was thrown by him in the canal near Heritage Institute. It is then recorded that the accused took the police personnel to the place of recovery. The two independent witnesses who were taken by the police for recovery, are Kashi Ram and Udal. Admittedly, Udal has not been produced. Kashiram has been produced as PW 6. In his cross-examination, he has stated that when he arrived at the place of recovery the dead body had already been recovered. The statement of PW 6, in that regard, has already been extracted in paragraph 19 of this judgement. Apart from these two witnesses, there is no other independent witness of recovery. The only witness of recovery produced by the prosecution, therefore, does not establish the recovery of the dead body on the pointing out of the accused. Since there is otherwise no disclosure statement (panchanama) duly prepared, in the manner expected in the law, and contents of recovery has otherwise not been proved, we do not find the circumstance of recovery of dead body, on the pointing out of the accused, to be proved, as per law. 21 48. The other circumstance, relied upon by the prosecution, relates to the existence of blood-stains on under garment of the accused. In that regard, the FSL report has been exhibited. As per this report the underwear, worn by the accused, contained no blood stains. It was the vest, worn by the accused, which alone had blood stains on it. 49. Learned counsel for the appellant has placed reliance upon the oral testimony of the witnesses, as per which, the accused was assaulted by the residents as it was apprehended that he had a role in the disappearance of the deceased. PW 1, in his testimony, has clearly stated the accused was beaten, not by him, but by the public. We have also perused the original records, including the G.D., which contains a specific narration about existence of injuries on the accused when he was brought to the police station. The existence of such injuries once are established on record, we do not find the blood-stains on vest of the accused, to be an incriminating circumstance, in order to implicate him since such blood-stains could have surfaced, on account of physical assault, sustained by him, from the members of the public. 50. The other circumstance relied upon against accused is the recovery of hairs from the hands of the deceased. The hairs of the accused have been recovered, and are matched with hairs, recovered from the hands of the deceased, and FSL report clearly records that the two have not matched and no definite opinion, in that regard, could be given. 51. The other circumstance which has been relied upon by the prosecution against the accused is the recovery of blood-stained scarf, from the room of the accused. This recovery is Ext. Ka-4. The memo of recovery contains signature of the informant and Raj Kumar. Raj Kumar has not been produced. The informant is an interested person. We are thus not inclined to rely upon the recovery of blood-stained scarf, on the basis of recovery certificate, as no independent member of public has come forward to testify it. 22 52. On perusal of evidence on record, we find that though a strong suspicion is generated, against the accused, but on the basis of the evidence, led in the matter, it cannot be said that the prosecution has established the guilt of the accused beyond reasonable doubt. The necessary conditions required to be fulfilled for establishing the case of circumstantial evidence are thus not shown to exist in the facts of the present case. The defence evidence otherwise shows that the deceased had actually disappeared, on 13.08.2009 itself. The law is otherwise settled that the suspicion, howsoever, strong, cannot be a substitute for positive evidence, which is required to be established, by the prosecution, in a case of circumstantial evidence. The accused is otherwise in jail since year 2009 and has undegone actual incarceration of more than 14 years and as such is clearly entitled to benefit of doubt in the matter. 53. Consequently, this appeal succeeds and is allowed. 54. Accused-appellant-Santosh Kumar Gupta son of Raj Kumar Gupta, who is in jail, shall be released forthwith unless he is required in any other case, subject to the compliance of Section 437A Cr.P.C. 55. The office is directed to transmit the lower court record immediately along with a copy of the judgement, to the trial court, which shall ensure its compliance. Order Date :- 27.9.2023 A.K.Singh/MN/-