CHANDRA DHARI SINGH,J. - (1.) Heard Sri Amit Kumar Srivastava, learned counsel for the appellant and Ms. Usha Kiran, learned Additional Government Advocate for the State.
(2.) The instant appeal has been filed against the judgment and order dated 8.12.1989, passed by the First Additional Sessions Judge, Allahabad whereby the accused-appellant Rakesh Kumar Upadhyaya was found guilty of the offence punishable under Sections 302, 376 and 201 I.P.C. and sentenced to life imprisonment for the offence punishable under Sections 302 and 376 I.P.C. The trial court awarded three years' rigorous imprisonment to the accused-appellant for the offence punishable under Section 201 I.P.C. All the sentence shall run concurrently.
(3.) Brief facts of the case. I. As per the prosecution case, the appellant Rakesh Kumar Upadhyaya is the brother-in-law of Krishna Chandra Pandey alias Krishna Pandey of the village of the informant-Laksmi Shankar Pandey (P.W.4). Krishna Chandra Pandey used to reside in the village for about 5 and 6 months. The occurrence took place on 19.3.1989 at about 5 .00 P.M.. The daughter of the informant was missing from the village. The informant-P.W. 4, Laxmi Shanker Pandey had searched for his daughter since 8.00 P.M. till 2.30 A.M.. He searched his daughter next day also, but she could be traced. It was during the evening of the next day, when he came to know that dead-body of the deceased was lying in the drain beside the Chakroad. The deadbody of the deceased was brought to the door of the informant. Thereafter, a First Information Report was got written from one Hari Shankar Pandey. The said report was lodged at Police Station Handia. On his return from the police station, he came to know from Ram Nihore-P.W.3 and Nankoo-P.W.9 of his village that they had seen the deceased with the appellant-Rakesh Kumar Upadhyaya going in the house of Krishna Pandey and they had seen her returning from there. The houses of both the P.W.9-Nankoo and P.W.3-Ram Nihore are situated beside the house of Krishna Pandey. The accused Rakesh Kumar Upadhyaya was seen in the village since after the occurrence, as he had absconded from the village. The deadbody of the deceased was sent to mortuary, where the post mortem on her deadbody was conducted by Dr. U.S. Sinha, P.W.8. The case was investigated by the S.S.I. Sri Ravindra Kishore Pandey-P.W.9, who had recorded the statements of the witnesses, prepared the site plan Ex. Ka-13 and submitted the charge-sheet Ex. Ka-15 against the accused-appellant Rakesh Kumar Upadhyaya after completing the investigation. II. The charges were framed against the appellant Rakesh Kumar Upadhyaya for the offence punishable under Sections 376, 302 and 201 I.P.C.. The accused had pleaded guilty to the charges framed against him and he alleged that he was falsely implicated in the case. He also pleaded alibia as was present in the village on the date of the occurrence. In his statement under Section 313 Cr. P.C., 1973 he has taken the plea of alibi. III. The prosecution had examined Smt. Geeta Devi, mother of the deceased as P.W.2, who has corroborated the testimony of her husband Laksmi Shankar Pandey-P.W.4. The informant. Smt. Geeta Devi-P.W.2 deposed that her daughter-deceased was aged about six years on the date of incident. The deceased was playing at the door of the accused at about 5.00 P.M., P.W. 2, Smt. Geeta Devi went to the field of pea crop and when she returned from there after sunset, she found that the deceased was present in the house. Thereafter, she cooked food and waited for her daughter-deceased but she did come back. She and her husband-P.W.4 started searching the deceased. They searched the deceased till 2.30 A.M. On next day they come to know that dead-body of the deceased was lying in the drain of Chakroad. The wife of Krishna Chandra Pandey i. e. sister of the appellant/accused-Rakesh Kumar Upadhyaya was present in the house as she had gone out and accused was alone in the house, as Krishna Chandra Pandey usually resides out of station. The accused person brought the deceased in the house as the house of Krishna Chandra Pandey was vacant and committed the offence. IV. The prosecution has examined Ram Nihore-P.W.3 and Nankoo-P.W.9. Both these witnesses deposed that they had seen the accused Rakesh Kumar Upadhyaya taking the deceased in the house of Krisnha Chandra Pandey at about 5.00 P.M. on the date of occurrence. They further deposed that they had seen her coming out from the house. Both the witnesses have corroborated each other and they supported the case of the prosecution. Both these witnesses have been cross-examined on behalf of the defence but nothing material came in the cross-examination to discredit their testimony. V. The prosecution has placed reliance on the extra judicial confession made by the appellant Rakesh Kumar Upachyay. Pt. Parasnath Pandey as P.W.1 had deposed that the accused-appellant had come to his house in the presence of one Daya Shankar Tewari and confessed that he had committed rape with the deceased and thereafter he had committed her murder by strangulating her. The appellant has further confessed that after committing rape and murdering the deceased he had caused burn injuries to her. The appellant further confessed that during the night he had thrown the deadbody in the drain near the chakroad. The appellant-accused requested to P.W.1 to help him out from this case as he is very influential person. The appellant-accused had also confessed his guilt before the Investigating Officer, Sri Ravindra Kishore Pandey-P.W.11. The Investigating Officer, Sri Ravindra Kishore Pandey, P.W.11 stated in the deposition that the accused had told him, that he had also made confession in this regard to Parasnath Pandey P.W.1. VI. In the statement under Section 313 Cr. P.C., 1973 the accused has taken plea of alibi as he was in Banaras during the time of occurrence. The accused has, however, submitted any oral or documentary evidence in support of his plea of alibi, therefore, he has failed to prove the plea of alibi. Mere statement under Section 313 Cr. P.C., 1973 cannot take the plea of substantive evidence. The plea of alibi can succeed only, if he is shown that the accused was so far away at the relevant time that he could able to present at the place where the crime was committed. VII. To bring the guilt of the accused-appellant, the prosecution has examined P.W.1, P.W.2, P.W.3, P.W.6, P.W.9 and other relevant witnesses for incriminating. The evidence and circumstances were put to accused-appellant under Section 313 Cr. P.C., 1973 and the accused denied all the charges levelled against him. The appellant has taken plea of alibi in the statement recorded under Section 313 Cr. P.C., 1973 but has failed to prove the plea of alibi in absence of any oral or documentary evidence. The entire prosecution story is based on circumstantial evidence as P.W.3 and P.W.9 had seen the deceased with the appellant on the date when the crime was committed. VIII. The trial court after concluding the proceedings vide judgment and order dated 08.12.1989, convicted the appellant herein for committing rape and murder and sentenced him to life imprisonment. The trial court convicted him for offence punishable under Section 201 I.P.C. and sentenced him to 3 years' R.I. All the sentences shall run concurrently. IX. Aggrieved by the said judgment and order dated 08.12.1989 of Additional Sessions Judge at Allahabad the instant Jail Appeal was filed.;