Arijit Pasayat, J. - (1.) The State of U.P. is in appeal questioning the correctness of judgment of a Division Bench of the Allahabad High Court which directed acquittal of the respondents. The learned 5th Additional Sessions Judge found the respondents guilty of offence punishable under Sections 376, 302 and 201 of the Indian Penal Code, 1860 (in short the Rs. IPC). Each was sentenced to death for the offence relatable to Section 302 IPC, life imprisonment for the offence relatable to Section 376 IPC and 7 years for the offence relatable to Section 201 IPC. The appellants preferred appeal before the High Court and a reference was made by the Trial Court under Section 366 of the Code of Criminal Procedure, 1973 (in short the Rs. Code) for confirmation of the death sentence. The High Court by the impugned judgment found that the accusations have not been established by the prosecution and therefore directed acquittal. Capital reference was rejected.
(2.) The prosecution version as unfolded during trial is as follows: According to prosecution, murder and rape was committed by the respondents on 17-11-1992 at about 7.00 A.M. in the morning when Kumari Suneeta, the deceased victim aged about 14 years had gone to ease herself in the nearby open field in village Jamal Nagar Police Station Safipur District Unnao. When on 17-11-1992 at about 7.00 A.M. Kumari Suneeta had gone to attend the call of nature in the nearby open field, both the accused followed her and after catching hold of her committed rape upon her and thereafter killed her by strangulation. They thereafter concealed the dead body of Kumari Suneeta by throwing it in the nearby Patawar. When she did not return back to her home, the family members of Kumari Suneeta started searching for her and ultimately at about 2.00 p.m. the dead body of the Kumari Suneeta was found in the Patawar. After recovery of the dead body of Kumari Suneeta, Radhey Lal (PW.1), brother of the deceased lodged a report about the incident at Police Station Safipur District Unnao at 3.45 P.M. on the same day. The distance of Police Station is 6 miles from the place of the incident. Sheo Harsh Tewari (C.W.2), Sub Inspector was present at the Police Station at the time when the report was lodged, therefore, he immediately proceeded to the place of the incident and reached there in the evening. He prepared inquest report at about 4.30 P.M. and other relevant papers Ext. Ka. 6 to Ka. 10 and sent the dead body to Mortuary for post-mortem examination. The Investigating Officer thereafter prepared Site-plan Ext. Ka.14 and recovered bali, Lutia, Chappal, Chaddhi etc. from the place of the incident. The investigating Officer also recovered Salwar and Frock which were found to be wrapped on the neck of the deceased. It is further said that thereafter the Investigating Officer called the Dog Squad and on the request of the Investigating Officer, Dog Squad reached there on 18-l1-1992 at about 12.45 p.m. It is said that the dogs after smelling the foot-print of the accused from the place of the incident reached the house of Shiv Balak. On 2.12.1992, the Investigating Officer arrested Ram Balak and recovered one lutia of Shiv Balak from the place of the incident on the pointing out of accused Ram Balak. Shiv Balak subsequently surrendered in Court. The autopsy on the dead body of the deceased was conducted on 18-11-1992 by Dr. Satya Prakash, Medical Officer District Hospital, Unnao. Ram Balak accused after the incident visited the house of Iqbal Ahmad (CW-1) and confessed his guilt. After completing the investigation the Investigating Officer submitted charge-sheet against the accused persons. Since the accused persons pleaded innocence trial was held. Seven witnesses were examined by the prosecution to prove the version which rested on circumstantial evidence. The learned Trial Judge after scrutinizing the evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt and therefore he convicted and sentenced the respondents as mentioned above. The respondents feeling aggrieved from the judgment and order passed by the trial Court, filed the Criminal Appeal before the High Court challenging their conviction and sentence as aforesaid. The stand before the High Court was that there is no evidence at all against the present respondents and the learned Court below committed an error in holding that the prosecution by means of circumstantial evidence has proved the guilt of the respondents beyond doubt. In the instant case there is no eye witness account. The conviction of the respondents is based only on circumstantial evidence. The learned Trial Judge while convicting the respondents relied upon five circumstances, namely, (i) the motive behind the crime was teasing of the deceased by the accused persons and thereafter they were scolded by the deceased, (ii) the accused persons were seen on the date and time of the incident near the place of the incident which led to their involvement, (iii) the police Dog Squad proved the guilt of the accused persons, (iv) the witnesses had no reason to implicate the accused persons falsely and (v) there is no missing link in the prosecution story. The High Court held that the circumstances do not make a complete chain of circumstances. There was no evidence to show that the accused were last seen in the company of the deceased. Merely because they were seen near the place of incidence, that cannot be a ground to show their involvement. The High Court noted that though there was some reference to the alleged extra judicial confession before CW-1 by the accused Ram Bali, the said confessional statement was not confronted to the accused while the statement of accused Ram Balak was recorded under Section 313 of the Code of the Criminal Procedure, 1973 (in short Rs. the Code). The High Court also found that the evidence of this witness was not believable. Accordingly, the High Court directed acquittal.
(3.) In support of the appeal, learned Counsel for the appellant submitted that there is a complete chain of circumstances and therefore the High Court ought to have upheld the conviction as recorded by the trial Court.;