Rajendra Yadav vs State

Naheed Ara Moonis, J.—The instant jail appeal has been filed against the judgment and order dated 22.7.2004 passed by the Additional Sessions Judge Fast Track Court No. 2, Siddharth Nagar in Sessions Trial No. 240 of 2002 under Sections 302/376 IPC whereby the Appellant has been convicted and sentenced for a life imprisonment u/s 302 IPC with a fine of Rs. 5,000/- in default, he had to undergo six months further imprisonment and further he was directed to serve out the sentence of seven years rigorous imprisonment u/s 376 IPC with a fine of Rs. 2,000/-. In default, the Appellant had to undergo two months further imprisonment.

The genesis of the prosecution case narrated in a nut shell is that the complainant Sati Ram Yadav lodged a first information report on 13.7.2002 at about 12.45 p.m. against unknown persons alleging therein that his mother Durpati Devi aged about 70 years had gone on the same day at about 9.00 a.m. one kilometre away from his village Seewan for grazing cow. The complainant heard in the village at about 11.45 a.m. on 13.7.2002 that his mother was done to death and the corpse of her mother was lying beneath the tree of Babool in the field of Jagdambika Dwivedi. On getting this information, the complainant along with other persons of the village went at the place of occurrence and found that his mother was done to death by tying the Sari around her neck by the miscreant. The complainant got the information of the said incident from Bhim Prakash Azad on the basis of which the first information report was lodged u/s 302 IPC vide case Crime No. 104 of 2002 Police Station Dhebaruwa District Siddharth Nagar. After registration of the first information report, the police came into action and inspected the place of occurrence where he found a blood stained lathi. Recovery memo was prepared on 15.7.2002 which was marked as Ex. Ka.2 and plain and blood stained earth were collected from the spot on 13.7.2002 which was marked as Ex. Ka.3. After conducting the inquest, the body was sent to mortuary for autopsy and the autopsy of the deceased was conducted on 14.7.2002 at 4.00 p.m in which abraded contusion around the neck having dark congestion and the abrasion in the inner part of labia majora were found. According to the opinion of the doctor, the death had occurred due to asphyxia and throttling. The blood stained clothes, mud and lathi were sent for chemical examination and according to the Serelogist Report human blood was found on the incriminating articles but was disintegrated. The investigating officer collected credible and clinching evidence on the basis of which charge sheet was submitted against the Appellant. The charges were framed against the Appellant under Sections 376/302 IPC. The Appellant denied the charges and claimed for his innocence. The accused Appellant was directed to be tried for trial.

The prosecution had examined P.W.1 Sati Ram the son of the deceased who had lodged the first information report and Shahid Husain P.W.2 before whom the accused Appellant had confessed his guilt. The P.W.3 Bheem Prakash Azad and the P.W.4 Inamullah were examined before whom the Appellant had confessed his guilt and at the pointing of the Appellant, lathi was recovered. Dr. R.S. Shukla who had conducted autopsy of the deceased was examined as P.W.5. P.W.6 Vanshraj S.I. had investigated the case. P.W.7 Abid Husain, P.W.8 Mahesh Yadav, P.W.9 Abdul Khalid were also examined. They proved that the accused Appellant had confessed towards his guilt. Thereafter statement of the accused Appellant u/s 313 Code of Criminal Procedure was recorded who had completely denied the allegations and stated that he was falsely implicated in the said offence. No other evidence was adduced by him. The P.W.1 Rati Ram Yadav, the son of the deceased stated that his mother had gone for grazing the cow. After some time he heard that his mother was killed and her body was lying beneath the tree of Babool in the field of Jagdambika Dwivedi. When the complainant reached there, he found that the corpse of his mother was lying tied with Sari around her neck. The complainant had witnessed this incident at 11.45 p.m and thereafter he lodged the first information report at 12.45 p.m. against unknown persons. The accused Appellant was wandering around in the village stating that he had committed serious offence by killing Durpati Devi. The investigating officer had recovered incriminating articles including blood stained lathi at the pointing of the accused Appellant which was within the special knowledge of the miscreants. The dead body of his mother was given to him after post mortem. Thereafter he performed the last rites. The accused Appellant had made confessional statement before the police P.W.2 Shahid Husain, P.W.4 Inamullah who is the witness of the recovery of blood stained bamboo used by the Appellant. The P.W. 3 Bhim Prakash Azad & P.W.4 Inamullah are also the witness of the inquest. The P.W.4 Inamullah had specifically stated that the blood was found at the place where the dead body was lying. At the time of recovery of lathi, investigating officer had found blood stain on the earth which was collected and pieces of the lathi were kept in sealed cover in his presence. It has been stated by the P.W.4 Inamullah that confessional statement was made by the accused before the police in the presence of the P.W.2 Shahid Husain. The accused Appellant had divulged that after committing rape on the victim Durpati Devi, the victim was throttled by tethering Sari around her neck and had also penetrated lathi in her private part. Dr. R.S. Shukla, the P.W.5 who had conducted autopsy of the deceased found that the death was caused on account of suffocation by strangulating the neck and the injuries were found on the private part of the deceased. Blood was also oozing from nostril and mouth. It was opined by the doctor that the death could have been caused on account of injury No. 1. The investigating officer Vanshraj the P.W.6 deposed before the court that he had arrested the accused Appellant on 15.7.2002 before whom the accused Appellant had confessed towards his guilt that he raped the victim and when the victim asked to unearth this incident to others, the accused Appellant penetrated the danda in her private part and also strangulated by tethering sari around her neck resulting in loss of life and on the pointing of the accused Appellant lathi used in the said crime was recovered from the field of Deena Nath which was marked as Ex. Ka.2. The investigating officer had recorded the statement of the witnesses and prepared the site plan, recovery memo of lathi and conducted the inquest and after collecting credible and clinching evidence submitted charge sheet against the accused Appellant. The P.W.7 Abid Husain had stated on oath before the court that he was running a poultry farm and the accused Appellant was his servant. On the fateful day of occurrence the accused Appellant was sent for ploughing the field and on the next day, he came in very perplexed and confounded manner entreating for his guilt. In a fazed manner, the accused Appellant unearthed how he had committed rape on the victim taking advantage of her loneliness and on account of fear the victim was killed to death. It was stated by the P.W.7 Abid Husain that inquest was conducted before him by the investigating officer. The accused Appellant had confessed towards his guilt before hundred of persons present at the police station. The P.W.8 Mahesh Yadav stated that he was present at the poultry farm of the P.W.7 Abid Husain when the accused Appellant repented confessing towards his guilt. Similar is the statement of Abdul Khalid, the P.W.9 who happened to be present at the poultry farm of the P.W.7 Abid Husain before whom the accused Appellant had repented confessing towards his guilt.

Learned Counsel appearing on behalf of the accused-Appellant has vehemently argued that the Appellant was falsely implicated in the present case. There was no testimony of ocular witness of the occurrence. The accused Appellant had falsely been implicated in the present case at the instance of the P.W.7, Abid Husain where the Appellant was working as a servant and the money was due upon him. When the accused-Appellant demanded money, he has been indicted in the present case. The accused Appellant was neither named in the first information report nor he had made any confessional statement before any person. The accused Appellant was not arrested on the place of occurrence. There is contradictory statement about his arrest and his confession as different version has been given by the prosecution witnesses in this regard. The entire prosecution story is based on circumstantial evidence.

The circumstances should be of a definite tendency unerringly pointing towards guilt of the accused Appellant. In the instant case the prosecution story and the evidence led against the Appellant is full of doubt and deficiency. The investigation was done in very perfunctory manner and the witnesses were not examined by the prosecution with due care to bring home the guilt beyond reasonable doubt. There was no direct evidence connecting the Appellant for the commission of the offence. It was beyond the understanding of a prudent person that the Appellant would wander all around the village divulging that he had committed such a heinous offence. The so-called extra judicial confession has not been proved satisfactorily and the court below has committed manifest error in accepting the same. The Appellant is entitled to the benefit of doubt. The first information report was lodged against unknown persons. There is unambiguous contradiction in the prosecution version and the statement of the witnesses. The testimony of witnesses as corroborated by the medical evidence was totally inconsistent. The sentence and conviction of the accused Appellant awarded by the court below hinged on circumstantial evidence. The accused Appellant can be convicted on the strength of circumstantial evidence only when circumstances must bring home the offence beyond all reasonable doubt, therefore, judgment and order passed by the court below may be set aside and the Appellant may be acquitted of the charges of Section 376/302 IPC.

Per contra learned AGA has supported the findings arrived at by the learned Lesions Judge and has contended that the victim was subjected to rape and was killed to death in extremely brutal and dastardly manner. There were clinching circumstances pointing towards the guilt of the accused Appellant. The recovery of blood stained lathi at the pointing of the Appellant and his repentance before the prosecution witnesses viz. Shahid Husain, P.W.2, Bhim Prakash Azad, P.3, Inamullah P.W.4 P.W.7 Abid Husain, P.W.8 Mahesh Yadav and P.W.9 Abdul Khalid for committing such an inhuman and brutal offence are clinching and pressing evidence which cannot be bogged down in any circumstances of the case. Though the confessional statement made by the accused Appellant before the police officer is inadmissible in evidence but the thread bare analysis of the statement of the prosecution witnesses cannot be whisked away in a very ordinary course as on the pointing of the accused Appellant recovery of blood stained lathi and other incriminating articles were recovered which are sufficient to substantiate towards guilt of the accused Appellant.

The circumstances from which the inference of guilt was drawn was fully established unimpeachable beyond a shadow of doubt. The circumstances from which the conclusion of guilt was drawn was consistent with the hypothesis of the guilt of the accused. All the circumstances were of conclusive nature and the chain of evidence only shows that within all human probability the act has been done by the accused Appellant alone. The manner in which the aged lady was subjected to rape and was killed to death by throttling portrayed very inhuman and gruesome state of mind of the accused Appellant. The confession of the accused Appellant before the prosecution witnesses and on his pointing recovery of incriminating articles corroborated towards his guilt, therefore, the judgment and order passed by the learned Additional Sessions Judge being reasoned and judicious deserves to be upheld.

Having considered the submissions advanced by learned Counsel for the parties and looking to the facts and circumstances of the case, we do not find any infirmity or vulnerability in the judgment and order dated 22.7.2004 passed by the Additional Sessions Judge (FTC No. 2) Sidhdarth Nagar.

Resultantly this appeal fails and is hereby dismissed.