Ganga Sahai vs State of U.P.

Kashi Nath Pandey, J.—This appeal has been filed against judgment and order dated 21.5.2008, passed by Additional Sessions Judge (F.T.C.) Court No. 1, Bulandshahr in Session Trial No. 1229 of 2002, State v. Ganga Sahai, Case Crime No. 113 of 2002 under Sections 302, 376(2) and 201, I.P.C., P.S. B.B Nagar, district Bulandshahr. By the impugned order the Appellant was convicted and sentenced to death u/s 302, I.P.C. and Rs. 10,000 fine, sentenced to life imprisonment and Rs. 5,000 fine under Sections 376(2)(Ch) and sentenced to 7 years imprisonment and Rs. 5,000 as fine u/s 201, I.P.C. In default of payment of fine he has to serve out additional sentence of six months u/s 376, I.P.C., additional sentence of six months u/s 201, I.P.C. and sentence under Sections 376(2)(Ch) and 201, I.P.C. shall run concurrently.

According to the F.I.R. as lodged by Jagveer Singh son of Chhanga Singh to police station B.B. Nagar, Bulandshahr, informant''s daughter Santosh aged 8 years was missing from 3.00 p.m. in the evening on 25.5.2002. On 27.5.2002, her dead body was found in sugar cane crop of Channi at Kuchesar. Her neck was tied by her own shirt. The case was registered at Crime No. 113 of 2002 u/s 302/201, I.P.C. against unknown person.

Exhibit Ka-1 is written report, Exhibit Ka-7 is chick F.I.R., Exhibit Ka-8 is carbon copy of G.D. Report No. 10 9.15 a.m. 27.5.2002 u/s 302/201, I.P.C., Exhibit Ka-3 is recovery memo of torned Kachchha of Santosh recovered from the place of occurrence. There were blood spot on it, Exhibit Ka-4 is recovery memo of kurta, paijama, underwear of Gangoo alias Ganga Sahai son of Harkesh Singh on which there were blood and sperm spot, kept in seal cover. Exhibit Ka-9 is inquest report. Exhibit Ka-10 is photo lash, Exhibit Ka-11 police paper-13, Exhibit Ka-12 letter to R.I., Exhibit Ka-13 letter to C.M.O. Exhibit Ka-14 is post-mortem report. Exhibit Ka-15 is report of Joint Director, Forensic Science Laboratory, U.P. Agra to whom shirt and underwear of deceased Santosh, and kurta, paijama and underwear of accused, Ganga Sahai were sent for report on point of spots. After investigation charge-sheet has been submitted against Ganga Sahai alias Gangoo which is Exhibit Ka-6. The case was committed to the Court of Session under Sections 302, 201 and 376, I.P.C. The accused was charged. Charges read over and explained to him, he pleaded not guilty and claimed to be tried.

Prosecution has examined P.W. 1 Smt. Khiniya wife of late Chhanga, grandmother of the deceased Santosh, P.W. 2 Jagveer Singh son of Chhanga Singh, father of the deceased Santosh, P.W. 3 Mahendra Pal Singh Rana, Investigating Officer, P.W. 4 Rajendra Singh son of Nand Ram, P.W. 5 Roop Singh son of Summera on point of extra-judicial confession, P.W. 6 S.I. Mahipal Singh the then Head Constable Clerk on point of Chick F.I.R., P.W. 7 S.I. Ram Gopal Singh on point of inquest report and other police papers Exhibit Ka-10 to Exhibit Ka-13 for the post-mortem of the dead body and P.W. 8 Dr. M.M. Agarwal on point of post-mortem report.

Heard learned Counsel for the Appellant, learned Government Advocate and learned Additional Government Advocate for the State. As per appeal judgment and order dated 21.5.2008 is said to be against the facts and circumstances of the case. According to the learned State Counsel the judgment is based on positive circumstantial evidence with complete and strong chain.

P.W. 1 Khiniya states that three years ago on the date of incident she had gone to her field with his son Jagveer grandsons Rinkoo, Tinkoo and granddaughter Santosh and Bhagwati, her daughter-in-law, in the morning for doing ''chhol''. At about 12-12.30 p.m. after completing some work of ''chhol'' all of them took their meal. In the meantime Gangoo alias Ganga Sahai reached there. He had also taken food. Thereafter all of them began to take rest and slept but she remained sitting. Ganga Sahai, accused present in Court was also sitting there doing conversation with Santosh. He had taken Santosh with him. In the meantime she slept. At about 3.00 p.m. in the evening when they awoke, they found that Santosh was not there. They thought that she might have gone to her house. After completing the work when they reached to their house, Santosh was not found there. The searched her here and there, then she had gone to the house of Channi for asking from Gangoo, she met with Gangoo, she asked about Santosh, Gangoo told that he is not aware of Santosh. Next day they tried to search her but in vain. On the third day her son Jagveer gave written report to the police station. On the same day young daughter of Channi informed that the dead body of Santosh is lying in her field. To hear this his son Jagveer and other co-villagers went to the sugar cane crop and found the dead body of Santosh. Her neck was tied with her own bushirt. Her leg and thigh were bitten by some animal. Her kachha was torned. Then they suspected that Ganga Sahai might have killed Santosh after her rape. The same version have been repeated by Jagveer Singh, P.W. 2. On the dictation of P.W. 2 written report was prepared by village Pradhan. It was read over to him, then he made his signature on it and proved the written report as Exhibit Ka-1. Thus P.W. 1 and P.W. 2 are the witnesses on point of last seen and F.I.R. In cross-examination P.W. 1 states that before the dead body was recovered report was lodged by her son but Exhibit Ka-1 falsifies it. The distance of the police station from sugar cane crop where the dead body was recovered is 3-4 kilometre. Against her statement in examination-in-chief she states that on the field rest of the member of her family slept but she did not sleep throughout. It is true that during the period of the incident other person were cutting wheat crop besides the place of occurrence. She denies the suggestion that on the direction of State''s Counsel she is giving false statement. She denies the suggestion that before and after the incident Gangoo was not in her village. Neither any question was put to her, nor she has explained, as to why there was no mention of the name of Gangoo in F.I.R., while the deceased was last seen with him at the field of P.W. 1. Even in cross-examination the same version has been repeated by P.W. 2. It was the season of crop cutting but till the three days when they were searching Santosh nobody could have told them anything about the deceased or the accused. There was nothing regarding rape punishable u/s 376, I.P.C. in the written report or chick F.I.R. whereas on the dictation of P.W. 2 written report was prepared by village Pradhan. There was no hurry in writing F.I.R. After seeing the condition of the dead body it was written, till then the name of the accused Gangoo alias Ganga Sahai was not brought into light. After the recovery of the dead body accused, Gangoo was suspected by P.W. 1. P.W. 2 states that he could not have suspected against the accused regarding the act against his daughter aged 8 years, therefore, he had not named accused in the F.I.R. P.W. 2 had not seen Gangoo while he was taking away Santosh with him. He denies the suggestion that Gangoo was falsely implicated on the ground of village politics. The land of Channi was adjacent to his own land. The distance in between the place, where the dead body was recovered, and the place, where they were doing the work of ''chhol'' on sugar cane field, was about 150 yards. ''Chhol'' means cutting and removing of leaf of sugar cane crop. He denies the suggestion that Ganga Sahai was not present in the period of the incident at the village Kuchesar as he had not come to the house of Channi. He also denies the suggestion that Ganga Sahai had not taken food with them on their land on the date from which time Santosh was missing. He also denies the suggestion that at the time of the incident Ganga Sahai was present in his own village at Babugarh. He asserts that Ganga Sahai was in the village Kuchesar on the date of incident till one day before the dead body was recovered. He denies the suggestion that accused was falsely implicated by him. He lodged F.I.R. before recovery of the dead body. He denies the suggestion that report was lodged after the recovery of the dead body. But Exhibit Ka-1 reflects otherwise.

P.W. 4 Rajendra Singh and P.W. 5 Roop Singh have been examined on point of extra-judicial confession. They state that they are well known with Gangoo alias Ganga Sahai. Gangoo alias Ganga Sahai was brought by police to the village in the case of murder of Santosh, the daughter of Jagveer. The house of Jagveer is adjacent to the market. Several persons were standing there when Ganga Sahai was brought there by police under its custody. In presence of the witness and other persons Ganga Sahai confessed that he has committed rape against Santosh and killed her thereafter. He had also shown the place where he had committed rape and the place where he killed her, They deny the suggestion that under the influence of Jagveer they are giving false statement. It has been stated by Roop Singh that before two days of the recovery of the dead body, P.W. 5 Roop Singh with Pramod at about 2.30 p.m. in the evening were going to B.B. Nagar. They had seen Gangoo alias Ganga Sahai coming out from the sugar cane crop of Channi. After two days Gangoo alias Ganga Sahai was arrested by the police. From the same above sugar cane crop of Channi the dead body of Santosh was recovered. His shop is in front of the house of Jagveer. It is to be noted that the extra-judicial confession before P.W. 4 and P.W. 5 has no importance as at that time the accused was in police custody. It is also to be noted that their shops were very nearer to the house of Jagveer who lost her daughter and for the last three days the whole family were searching his daughter but regarding the incident of coming out of the accused from the sugar cane crop of Channi was not communicated to P.W. 1 and P.W. 2 which cannot be said to be normal. It is also to be noted that P.W. 1 is the sole witness of last seen of the deceased and the accused, which must have been communicated by her to P.W. 2 her son, even then the name of the accused could not be brought into the light on third day when F.I.R. was lodged. Nothing could have been recovered on the pointing out of the accused. The sole testimony against him is extra-judicial confession which is inadmissible evidence as he was in police custody. The last seen evidence of P.W. 1 has got no gravity, it is too dilute on account of the fact that the accused was not named in the first information report nor there was any suspicion against him.

Mahendra Pal Singh Rana P.W. 3 was station officer of the police station. He has himself taken the investigation of Crime No. 113 of 2002, Sections 302 and 201, I.P.C., noted the version of chick F.I.R. and G.D. in case diary. Recorded the statements of the informant, writer of chick F.I.R. and on the pointing out of informant prepared site plan which is Exhibit Ka-2. Recorded the statement of the witnesses of the inquest report, witnesses of recovery memo and other witnesses of fact. Prepared recovery memo of kachha which is Exhibit Ka-3. On 28.5.2002, he arrested the accused Gangoo alias Ganga Sahai and recorded his statement. He confessed his guilt regarding rape and murder of deceased. He had taken into his possession the kurta, paijama and underwear of the accused which he was wearing at the time of the occurrence. There were blood spots on it. He prepared its recovery memo, got the signatures of the witnesses Pramod and Rambhool on it. Recorded their statement. Recovery memo is Exhibit Ka-4. Site plan of place of occurrence was prepared by him on pointing out of accused, it is Exhibit Ka-5. The accused has confessed his guilt in presence of Roopa Singh and Rajendra. Recorded the statement of Kiran Pal who had taken dead body for autopsy. Recorded the statement of Ram Gopal who prepared inquest report of the dead body. After completion of the investigation, he has submitted charge-sheet which is Exhibit Ka-6. The first parcha of the case diary is dated 27.5.2002. 25.5.2002 has wrongly been entered due to slip. The case was registered on 27.5.2002. The land of Channi was adjacent to the road. The inquest report was prepared under his direction. He also recorded the statement of Channi, The accused Ganga Sahai is the distant relation of Channi. No relation with the informant. There is no any statement of the accused recorded u/s 164, Code of Criminal Procedure, although he was sent by Investigating Officer to Magistrate but what happened is not known to him. He denies the suggestion that Gangoo was arrested from his house and falsely implicated in this case. There was no any enemity between the informant and the accused.

P.W. 6 Mahipal Singh, head constable clerk on the basis of written report, Exhibit Ka-1 prepared chick F.I.R., Ext. Ka-7 in his hand writing and signature, entered it on report number 10 in the general diary at time 9.15 a.m. on 27.5.2002. Carbon copy of general diary is Exhibit Ka-8 in the hand writing of Jaiveer Singh which is certified by him after making his signature on carbon copy. He denies the suggestion that Exhibit Ka-1 was written on his dictation.

P.W. 7 S.I. Sri. Ram Gopal Singh prepared inquest report of the dead body of Km. Santosh. He had also prepared all the relevant papers for the sake of post-mortem. Panchayatnama, photo lash, police form-13, report to R.I., and report to C.M.O. all are in his hand writing and signature. They are Exhibit Ka-9, Ka-10, Ka-l1, Ka-12 and Ka-13. The dead body was kept in sealed cover. The dead body of the deceased was naked. It was eaten by animal to the extent of her legs and thigh. Her neck was tied by her shirt. There was some scratches on the abdomen of the deceased.

P.W. 8 Dr. M.M. Agarwal conducted the post-mortem of the dead body at 4.00 p.m. on 27.5.2002. It was handed over to him in sealed condition by constable Kiran Pal and home guard Raj Kumar of police station B.B. Nagar. The dead body was identified by them. It was two days old. Following injuries were found on the dead body:

(i) Contusion mark 2.4 cm. x 2.5 cm. round the neck. Bushirt found tied knot found on right side of neck. Underneath the injury there was echymosis. Corner of right side of hyoid bone was broken.

(ii) The lower limbs below thigh were bitten by some animal up to the level of feet. The cause of death was asphyxia due to strangulation.

Two vaginal smear was sent to pathology for its examination. Post-mortem report is in his hand writing and signature, it is Exhibit Ka-14. Sealed bundle of shirt was handed over to the police. The time of death was at about 3.00 p.m. In the evening of 25.5.2002. Nine police papers were given to him at the time of post-mortem. After comparison of the specimen to the seal of the dead body, got it similar. He conducted the post-mortem after the dead body was identified. He denies the suggestion that death was three days old.

After jointly scrutinising and analysing the above statements of witnesses, we do not find anything which positively and definitely incriminates towards the guilt of the accused. The case is fully based on circumstantial evidence. After the joint analysis of the statements of all above witnesses from P.W. 1 to P.W. 8, the chain of the circumstances are not closed to each other in such manner as to conclude only the guilt of the accused not any other alternative. All above documentary and oral evidence have been brought into the notice of the accused, Ganga Sahai. For giving him opportunity to explain it, his statement was recorded u/s 313, Code of Criminal Procedure. All allegations have been denied by him stating all the statements to be false. He has specifically stated that he had not made any confession before any one including P.W. 4 and P.W. 5. He has not made any confession before any Sub-Inspector of Police. He made no comment regarding formal police paper prepared for post-mortem. From the report of Joint Director, Forensic Science Laboratory, U.P., Agra there is nothing incriminating against him. On the piece of shirt, necar and underwear of deceased and of accused blood spots were found but it cannot be said, that it is in any way connected with the accused, as there is no mention of blood group of the deceased and blood group of spot found on his underwear and blood group of piece of shirt, underwear and necar of the deceased are similar to that of blood group of underwear of accused. On underwear of the deceased and underwear of the accused sperm were found. This can be a ground for implicating the accused but only on the ground of single incriminating circumstance, the chain of circumstantial evidence is not complete. If there had been any D.N.A. report regarding the sperms of the accused in comparison with the sperms found on underwear of the deceased and the accused, the conclusion of guilt could have been confirmed but that is not in the case. In the present case, therefore, circumstantial evidence pointing out the guilt of the accused is not complete and strong. In Bablu alias Mubarik Hussain v. State of Rajasthan (LVII)2007 ACC 1071 : 2007 (1) ACR 338 . Hon''ble Apex Court has held that on the basis of the circumstantial evidence inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In this case Bhagat Ram Vs. State of Punjab, has been referred in which it was laid down that where the case depends upon the conclusion drawn from the circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. C. Chenga Reddy and Ors. v. State of Andhra Pradesh, 1955 (Suppl) ACC 321 (SC) has been referred in which it has been observed that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In Padala Veera Reddy v. State of Andhra Pradesh and Ors. (XXVII)1990 ACC 32(SC), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In State of U.P. v. Ashok Kumar Srivastava 1991 (Suppl) ACC 325 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Thus, where the evidence is capable of two inferences, the one in favour of the accused must be accepted. If there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. Onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured. If the above principles laid down by the Hon''ble Apex Court is applied on the facts of the present case, it can be said that the chain of circumstantial evidence is not strong and complete in itself, leading only to the hypothesis of his guilt. There should be reasonable ground regarding involvement of the accused in this crime. Accordingly he is entitled for getting the benefit of doubt.

With reference to discussion made above on point of fact and law, we have also gone through the impugned judgment and order passed by learned Judge of the lower Court.

When there is single testimony of the sole witness on point of last seen when the deceased was seen with the accused at the field of the informant, then it was most important fact of suspicion against the accused. It was most probable fact which must have been mentioned in the first information report as it was most important point for initiation of the investigation. Its absence in the F.I.R. creates doubt about presence of the accused at the field of the informant taking meal with them and going away with the victim in presence of her grandmother without any objection. Had it been true, it was most probable that after the denial from the accused regarding victim, F.I.R. should have been lodged then and there without delay on the same date which was not done. Thus, there is delay in lodging F.I.R. which could not have been explained. Even after the dead body was found in the sugar cane crop of Channi, the accused was not named in F.I.R. This is also a ground to suspect about the presence of the accused at the land of the informant on that date. From the very beginning from the stage of charge till the accused statement u/s 313, Code of Criminal Procedure, the very presence at village Kuchesra has been denied by the accused. He asserts that he was in his village Babugarh from where he was arrested by the police. Although this suggestion about his arrest from Babugarh has been denied by the Investigating Officer, but he has not explained that from where he was arrested. It has been admitted by P.W. 2 that one day before, the dead body was recovered he was in village Kucheser, therefore, it is clear that on the date of arrest he was not at village Kucheser. Therefore, the explanation given by the learned lower Court regarding unnaming of the accused that the F.I.R. is not in cyclopaedia of the prosecution case but it is mere to initiate the proceeding cannot be said to be satisfactory, as when there is the only evidence of last seen for initiation of proceeding this fact could not have been ignored. P.W. 2 explains that he has not named the accused as he did not suspect against him, but the probability demands that if he was present at the spot on the date of occurrence and was seen by P.W. 1 to have taken away Santosh with him and after inquiry he refused to have any knowledge about the victim, it was most probable to mention this fact in F.I.R. Not naming accused creates a doubt about the presence of the accused at the place of occurrence on the date of incident, taking away granddaughter of P.W. 1 in her seeing without any reaction and objection by her.

Only on account of the relationship of accused with Channi in whose sugar cane crop dead body was recovered cannot be said to be a ground to support prosecution case against the accused. It is also to be noted that there is contradiction in the statement of P.W. 1 and P.W. 2 in itself, therefore, they cannot be said to be fully reliable, At one time P.W. 1 stated that she slept after taking her meal while accused was talking with the victim and at other time she stated that she remained sitting throughout and she saw the accused taking away the victim with him but she had not expressed any reaction which is a sign of suspicion on the facts stated by her. It is also to be noted that it was wheat crops cutting season, even then, none of the farmer could have seen the victim as well as accused which is also a ground of suspicion against the prosecution case. The primary onus of proof is on the prosecution, thereafter it is shifted on defence. The burden of proof on the accused will come to explain himself as to when he was separated from the victim can only be when it was fully proved that the victim and accused was last seen by the witness thereafter only her dead body could have been recovered. In present case the presence of the accused could not have been proved beyond all reasonable doubt at the time of incident when he was last seen with the deceased, when he was taking her away. Therefore, no explanation could have been given by the accused as mentioned in the judgment is not fatal to defence because the prosecution could have not discharged his burden. There is single testimony of P.W. 1 on point of last seen. The testimony of P.W. 1 and P.W. 2 being testimony of mother and son can also be treated to be a single testimony on point of presence of the accused at their land which has been denied by the accused through his suggestion put against prosecution witnesses and in the statement u/s 313, Code of Criminal Procedure there is no corroborative evidence on this point from the side of the prosecution.

It is not very material that there was no any enmity with the accused, that is why, he was not named but, the most important thing is that as he had taken the victim with him which was last seen by P.W. 1, this fact could have not been ignored in F.I.R. lodged by P.W. 2, when he could see the dead body of his daughter afterwards.

Learned Court explained that when the confession before the public is voluntary and without any undue pressure, the presence of the police can be ignored and the confession can be admissible but this explanation cannot be admissible where the statement has been given under police custody may be in presence of the witnesses. Learned lower Court has cited Girja Bai v. State of Madhya Pradesh 2007 (1) Crimes 135 (CGH) in which the confessional statement was held admissible when the presence of police was not in the notice of the person making confession, such is not the case here. Here the accused was brought under the police custody, therefore, his confessional statement is not admissible.

Under the statement recorded u/s 313, Code of Criminal Procedure, the only reference of the report, the Assistant Director, Forensic Science Laboratory has been mentioned. There is no specific question regarding presence of sperm on the underwear of the accused. Even if the sperm is present on the underwear of the accused, it cannot be said to be improper. It is natural. Sometimes in dream it is discharged. The accused cannot be compelled to explain its presence on his underwear. It has been mentioned in the judgment of the lower Court while hearing on the point of sentence about his previous bad character, his involvement in the offence punishable under Sections 302, 201 and 377, I.P.C., therefore, it can be said it might have been on account of any other reason. It cannot be connected with the offence of this case without any doubt. Learned lower Court has mentioned that although P.W. 1 has stated that it was a wheat crop cutting season but P.W. 2 has denied it, but it is to be noted that at one time P.W. 2 has also admitted that it was a wheat crop cutting season. Therefore, it was most probable that the movement of the accused should have come into the notice of villagers working in their field otherwise his presence cannot be said to be in village Kucheser beyond all reasonable doubt. It was very natural for P.W. 5 to communicate this fact to P.W. 1 and P.W. 2 regarding coming out of the accused from the sugar cane crop of Channi, two days before, the dead body of victim was recovered. But this was not communicated by P.W. 5 whose shop of photograph is adjacent to the house of P.W. 1 and P.W. 2. It was much probable that the missing of his daughter was within notice of members of the adjoining houses, so it was a natural reaction that the fact which was in the notice of P.W. 5 should have been communicated to P.W. 1 and P.W. 2. Default can be a ground for suspicion that P.W. 5 had not seen the accused coming out from the sugar cane crop of Channi. There is no any corroboration on the point of presence of the accused at village Kucheser. Channi or his daughter has not been examined by prosecution.

Learned Judge has pointed out that the burden to prove alibi was on the accused. He has not adduced any evidence in defence about his presence in his own village on the date of occurrence but the burden to prove alibi shifts on the accused when the initial burden of his presence in village Kuchesar could have been proved by corroborative evidence. The general rule is to prove a positive fact a negative fact cannot be expected to be proved in ordinary circumstances, therefore, the accused cannot be convicted on the ground that he has not adduced evidence in his defence regarding his absence in the village Kuchesar on the date of occurrence. It has clearly been suggested to all the witnesses of fact that at the time of occurrence, he was in his own village Babugarh. The single testimony about his presence in Kuchesar has been rebutted by his suggestion to the witnesses of fact and statement made u/s 313, Code of Criminal Procedure in explanation of the prosecution witnesses.

Learned lower Court relied on Ruli Ram and Another Vs. State of Haryana, and hold that if the defence version is that the accused has been falsely implicated on account of enmity then the burden lies on him to prove that he has been falsely implicated on account of enmity. The accused could not prove this fact that he has been falsely implicated on account of enmity, it has already been discussed above quoting the Hon''ble Supreme Court that initial burden lies on the prosecution to prove his case beyond all reasonable doubt. Prosecution is expected to stand on its own leg. Loop holes in the prosecution case which is weakening the chain of circumstantial evidence of the prosecution could not have been filled by the explanation forwarded by the learned lower Court. Accordingly we reached to the conclusion after scrutinising the evidence that there is no complete and strong chain of circumstances which can be said to be incompatible with the innocence of the accused or guilt of any other person. Circumstances are not consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. It cannot be said that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Thus, it is clear that the circumstantial evidence are not consistent with the guilt of the accused but appears to be consistent with his innocence. Conviction is possible only when the circumstantial evidences are inconsistent with the innocence of the accused. Considering all above circumstances and law laid down by the Hon''ble Apex Court the only conclusion which can be drawn is that the accused is entitled for benefit of doubt. Accordingly the appeal deserves to be allowed. The appeal is allowed. The reference is hereby rejected. The judgment and conviction order dated 21.5.2008, passed by Additional Sessions Judge (F.T.C.) Court No. 1, Bulandshahr in Session Trial No. 1229 of 2002, State v. Ganga Sahai Case Crime No. 113 of 2002 under Sections 302, 376(2) and 201, I.P.C., P.S. B.B. Nagar, district Bulandshahr are hereby quashed. The accused be set at liberty if not detained in any other case.