Deshraj vs State of U.P.

G.P. Mathur and K.D. Shai, JJ.—Deshraj has preferred this appeal against the judgment and order dated 14.4.1980 of IInd Additional Sessions Judge, Mainpuri in S.T. No. 283 of 1979. By the aforesaid judgment and order, Appellant has been convicted under Sections 376 and 302, I.P.C. and has been sentenced to seven years R.I. and imprisonment for life respectively.

A F.I.R. was lodged by Brij Lal at 8.15. p.m. on 22.2.1979 at P.S. Bhogaon stating that his daughter Nanhi Devi aged about ten years had gone to the fields at about 2 p.m. on 21.2.1979 but she did not return in the night. A search was made for her and her body was found next day at 6 p.m. in the arhar field of Jairam. There were signs of injuries on the face and neck and there was blood on her private parts. In the F.I.R. suspicion was raised against the Appellant Deshraj for having committed the crime. On the basis of the report lodged, a case was registered under Sections 302, 376, I.P.C. at the police station in which Deshraj was named as an accused. The case was investigated by Sukhbir Singh. S.I. After completing investigation, he submitted charge-sheet against the Appellant.

After committal of the case to the Court of Sessions, charge under Sections 302, 376, I.P.C. was framed against the Appellant. He pleaded not guilty and claimed to be tried. The prosecution in support of its case examined eight witnesses. The Appellant in his statement u/s 313, Code of Criminal Procedure denied the case of the prosecution and alleged his false implication, as his father had given an application in the Court of Consolidation Officer for being provided with an irrigation channel and his field was close to the field of the complainant Brij Lal. This application annoyed the complainant and, therefore, he falsely implicated the Appellant in the present case. The Appellant did not lead any evidence in his defence. The learned Sessions Judge believed the case of the prosecution and convicted and sentenced the Appellant as stated above.

We have heard Sri A.B.L. Gour for the Appellant, learned A.G.A. for the State and have examined the record.

There is no eye-witness of the occurrence and the case against the Appellant rests on circumstantial evidence. We will now refer to the evidence which has been adduced by the prosecution.

P.W. 2 Shakuntala has stated that a year back at about 5-5.30 p.m. she had seen the Appellant Deshraj and deceased Nanhi together. The accused had climbed over a berry tree and after plucking fruits he was throwing it on the ground and then Nanhi was eating berry fruits. Thereafter she did not see Nanhi alive. She has further stated that her father and the complainant Brij Lal are real brothers. At the time of her statement in Court on 20.2.1980, she gave her age as 12-13 years.

P.W. 5 Ram Bahadur has stated that at about 5-5.30 p.m. he was going to Nagla Peth when he saw the deceased Nanhi and the Appellant Deshraj eating berry below a berry tree. In his cross-examination, he has stated that he had seen 6-7 children eating berry and there were both boys and girls. He returned after 15-20 minutes and saw that three or four children were still there. He did not notice whether Nanhi was present or not. In his cross-examination, he has stated that he heard about disappearance of Nanhi on the next day.

P.W. 6 Kamta Prasad has stated that about a year back at about 7 p.m. he was returning to his village. He saw Nanhi going in the field and Deshraj was following her. Next day when he came to know that Nanhi had disappeared, he gave information about this fact to her father. In his cross-examination, he has stated that he had seen her from a distance of 100 paces.

P.W. 7 Virendra Singh has stated that he was returning from Sheopur at about 6.30 p.m. when he saw Deshraj coming out of arhar field. Deshraj appeared to be perturbed. He enquired from Deshraj where from he was coming but he did not give any reply and went towards his own house.

P.W. 1 Brij Lal has stated that he lives in village Jeewanpur while Deshraj lives in village Sheopura which is 6-7 furlongs from his village. He had installed an engine in his field which is six furlongs from his house. About a year back, his daughter Nanhi aged about 10 years had gone to keep a watch over the field at about 2 p.m. when she did not return till evening, he made a search for her. P.W. 2 Shakuntala and P.W. 5 Ram Bahadur informed that they had seen his daughter eating berry in the company of Deshraj Appellant. P.W. 6 Kamta Prasad informed him that he had seen Nanhi going in the field and Deshraj was following her. He then made enquiry from Deshraj who denied to have seen Nanhi. Subsequently after search the body of Nanhi was found in the field of Jairam. Thereafter he dictated a F.I.R. to Sone Lal and lodged the same at the police station.

P.W. 3 Dr. A.N. Saxena conducted post mortem examination on the body of deceased Nanhi and found following anti mortem injuries on the same:

(1) Multiple intempted abraded contusions in an area of 6 cm. x 2 cm. on right side neck, 2 cms. below angle of mandible.

(2) Multiple intempted abraded contusions on right side, face in an area of 7 cm. x 3 cm., 3 cms. in front of right ear.

(3) Multiple intempted abraded contusions on left side neck in an area of 5 cm. x 2 cm., 6 cm. below left ear.

(4) Abraded contusion 3 cm. x 1 cm. on left side cheek, 2 cm. in front of left ear.

(5) Abrasion 1 cm. x 1/2 cm. on right side front of chest, 4 cm. below staret end of right clavicle.

On opening injury No. 1 and injury No. 3 there was extravasation of blood in subcutaneous tissues and muscles underneath with fracture of hyoid bone.

Internal examination showed that hymen was lacerated, edges were red. There was bruising of labia minora. Larynx, trachea and bronchi were congested. In the opinion of the doctor, death had occurred due to asphyxia as a result of strangulation.

P.W. 4 Narendra Pal Singh was Head Constable at P.S. Bhogaon. He has stated that Brij Lal lodged the F.I.R. of the occurrence on 8.15 p.m. on 22.2.1979 on the basis of which he prepared a chick F.I.R. and registered the case in the General Diary. P.W. 8 Sukhvir Singh was S.I. at P.S. Bhogaon on 22.2.1979. The F.I.R. was lodged in his presence. In his statement, he has given details of various steps taken by him during the course of investigation. He reached the place of occurrence at 11.55 in the night. He conducted inquest of the body of the deceased on 23.2.1979. He prepared papers like photo lash, challan lash and after sealing the body sent the same for post-mortem examination. After completing the investigation, he submitted charge-sheet against the Appellant.

It may now be examined whether the testimony of witness is trustworthy. P.W. 1 Brij Lal has stated that his daughter Km. Nanhi aged about 10 years had gone to the field at about 2 p.m. and she did not return in the evening. Thereafter on the next day, he made enquiry from her classmates in the school. P.W. 2 Shakuntala and P.W. 5 Ram Bahadur gave some information about Nanhi to him. They informed him that they had seen Nanhi eating berry in the company of Deshraj accused. P.W. 6 Kamta Prasad informed him that he had seen Nanhi going in the field and Deshraj was following her. In his cross-examination, he has stated that on the date of the incident he had gone to village Bhogaon and returned at about 5 p.m. His wife informed him that Nanhi had not returned from the field. However, he says that he went to his own field where the engine is installed and returned from there at 10 a.m. on the next day. In paras 16 to 18 of his statement, he has stated that he did not make a search for his daughter on that day and remained near the engine for the whole night. The conduct of Brij Lal is simply not understandable. If his young daughter was missing, he should have made a search for her rather than going to the field and staying there for the whole night. If somebody''s young daughter is missing, the news would spread like wild fire and everyone in the locality will come to know about it. P.W. 2 Shakuntala is the real niece of Brij Lal. She too must have come to know that Nanhi had not returned to her house in the evening. However, she did not give any information to Brij Lai on that day itself. On the other hand, Brij Lal has stated that on the next day, Shakuntala informed him that she had seen Nanhi and Deshraj together. Ram Bahadur P.W. 5 has stated in para 9 of his statement that he heard about the disappearance of Nanhi on the next day. He is resident of the same village Jeevanpur and if the prosecution case is correct, he should have learnt about the said fact that in the evening or the night of 21.2.1979 and not on the next day. His statement does not lead to the inference that the Appellant Deshraj was responsible for the commission of the crime. In para 4 of his statement, he has stated that he had seen 6-7 children including Nanhi and Deshraj eating berry. Therefore, the Appellant Deshraj was not alone in the company of Nanhi deceased. P.W. 6 Kamta Prasad has merely stated that while he was returning to his village at about 7 p.m. he saw Nanhi going near the field of Sri Ram and Deshraj was following her. He saw them from a distance of 100 paces. He is a teacher in a school. He has stated that when Brij Lal made enquiry on the next day, he informed him about this fact. His statement is not of such type on which any inference may be drawn against the Appellant. P.W. 7 Virendra Singh has only stated that when he was coming from Sheopura at about 6.30 p.m. he saw Deshraj coming out of the arhar field of Jai Ram and he appeared to be perturbed. In his cross-examination, he has stated that the had gone in a marriage party and had returned from there on the next day. Nanhi had disappeared on the day when he had gone in the marriage party but he had seen accused Deshraj coming out of the field after he had returned from the marriage party. This was on the next day. This means that he had seen Deshraj coming out of the field not on the day Nanhi disappeared, i.e., on 21.2.1979 but on the following day, i.e., on 22.2.1979. The testimony of this witness hardly proves anything as coming out of the Appellant from a field one day after the occurrence could be of no consequence.

The facts mentioned above would show that the testimony of the witnesses examined by the prosecution is not at all trustworthy. They have given a very unnatural statement which cannot be believed. Therefore, it will not be safe to place reliance on the same. It is well-settled that in a case based on circumstantial evidence, evidence should be complete and incapable of explanation on any hypothesis other than the guilt of the accused. The circumstances from which the inference of guilt is to be drawn must be fully established and they should be of definite tendency pointing towards the guilt of the accused.

As discussed above, the evidence adduced by the prosecution is not trustworthy and reliable. It does not establish any circumstances in a clinching way. That apart, even accepting the testimony of the witnesses on their face value, the circumstances do not lead to the only inference that the Appellant has committed the crime in question. We are, therefore, of the opinion that conviction of the Appellant cannot be sustained.

In the result, the appeal succeeds and is hereby allowed. The conviction of the Appellant under Sections 376 and 302, I.P.C. as recorded by the learned Sessions Judge, Mainpuri, and the sentences imposed thereunder are set aside. The Appellant is acquitted of the charges levelled against him. He is on bail. He need not surrender. His sureties and bail bonds are discharged.