AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
232 paragraphs · 4,705 wordsNAME OF ACCUSED,SECTIONS,SENTENCE
Rajkumar alias Dharmendra,302 IPC,"Death sentence with fine of Rs.
5,000/-. In default of payment of
fine to further undergo six months
rigorous imprisonment.
,201 IPC,"To undergo seven years rigorous
imprisonment with fine of Rs.
5,000/-. In default of payment of
fine to further undergo additional six
months rigorous imprisonment.
,363 IPC,"To undergo seven years rigorous
imprisonment with fine of Rs.
5,000/-. In default of payment of
fine to further undergo additional six
months rigorous imprisonment.
,366 IPC,"T o undergo ten years rigorous
imprisonment with fine of Rs.
10,000/-. In default of payment of
fine to further undergo additional six
months rigorous imprisonment.
,376 (2)(i) IPC,"To undergo life imprisonment with
fine of Rs. 10,000/-. In default of
payment of fine to further undergo
additional six months rigorous
imprisonment.
,5(m)/6 of POCSO Act,"Since accused was already
awarded sentence under Section
376(2)(i) IPC, therefore, as per
Section 42 of POCSO Act, there
was no need to awarded separate
sentence to the accused under
Section 5(m)/6 of POCSO Act.
Learned counsel for the accused has submitted that there was an inordinate delay of 27 hours in lodging the FIR. Circumstance of last seen had,,
been created by the prosecution witnesses to falsely involve the accused in this case. Blood sample as well as semen sample of the accused had been,,
taken but the same was never got compared with the vaginal swab of the deceased. Most important witness of the prosecution, Vijay Pandit, at",,
whose shop accused had allegedly taken the victim, was neither joined during investigation, nor was examined as a witness during trial. As per P.W. 4",,
Subhash Chand, accused was under the influence of liquor when he had left the house. In this situation, it was not believable that P.W. 4 would have",,
allowed the accused to take his daughter with him. Mother of the victim had neither been joined during investigation, nor had been examined as a",,
witness during trial. Although, from the testimony of P.W. 4 it appeared that the mother of the victim had also left with him but from testimony of the",,
complainant P.W. 1 Ramkunwar, it was evident that mother of the victim was not residing in the same house. Statement of the complainant was",,
merely hearsay.,,
Present case relates to rape and murder of Muskan aged about five years. Case rests on circumstantial evidence.,,
It has been held by the Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. (AIR 1990 SC 79), as under:-",,
.. This Court in a series of decisions has consistently held 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. (See,,
Gambhir v. State of Maharashtra).""",,
It has also been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552 ,as",,
under:-,,
There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled",,
principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The,,
circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e.",,
the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as,,
not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of",,
the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should",,
be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified 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.,,
Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must",,
be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain,,
of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been",,
proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that,,
the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.""",,
Let us examine the statements of the witnesses examined by the prosecution to come to a conclusion as to whether the circumstances brought on,,
record establish the guilt of the accused.,,
Circumstance of Last Seen:,,
Complainant Ramkunwar, while appearing in the witness box as P.W. 1, deposed that on the day of incident at about 9 O' Clock, Rajkumar had",,
come to their house and had gone upstairs. Thereafter, Rajkumar came down and took his granddaughter Muskan with him on the pretext of getting",,
her sweets. Muskan was playing outside. He did not know where the accused had taken Muskan. Rajkumar had raped his granddaughter and,,
thereafter murdered her. The said witness in his cross-examination deposed that he could not tell whether his son used to take liquor. He could not tell,,
whether Rajkumar had become friendly with his son prior to the incident. His granddaughter had not come to him asking for money. He could not tell,,
whether his granddaughter had gone with accused while crying or happily. He could not tell the exact time of the incident as he was not having any,,
watch. On that day, there were panchayat elections in the village. He had also cast his vote. He had gone at about 12 O' Clock to cast his vote. He",,
was not informed by any person before he left for casting his vote that his granddaughter had gone somewhere. He had come to know about the said,,
fact later.,,
Thus, the cross-examination of P.W. 1 demolishes his version that accused had taken his granddaughter with him in his presence at about 9 O'",,
Clock. Rather as per this witness, he had come to know that his granddaughter had gone somewhere when he came back home after casting his vote.",,
Hence, testimony of P.W. 1 fails to inspire confidence that he had last seen the deceased in the company of the accused.",,
P.W. 4 Subhash Chand deposed that Muskan was his daughter. On 01.02.2015, he was present in his house. On that day, panchayat elections",,
were taking place in their village. At about 9 O' Clock, accused Rajkumar had come to his house. He already knew the accused. Accused was",,
already under the influence of liquor and had left after meeting him. His daughter came to him and demanded two rupees from him. He told her that,,
he did not have the change and he would give her the money when her mother returned. Accused said that he would give her money and then he took,,
his daughter with him on the pretext that he would buy her a 'thing'. Accused took his daughter to the shop of Vijay Pandit. After buying the 'thing', he",,
took his daughter to a 'khandahar' (ruin). There accused raped his daughter and committed her murder. Accused absconded after committing the,,
murder. His daughter was aged about five years and was a student of first class in a government school. In his cross-examination, he deposed that it",,
was correct that if somebody came to his house in the morning under the influence of liquor then he would not deny the entry to that person. It was,,
correct that on the day of incident, Rajkumar was under the influence of liquor and he was badly smelling of liquor and could barely walk. He did not",,
cast his vote. Shop of Vijay Pandit was at a distance of 500 metres from his house. He admitted it as correct that one's daughter should not be sent,,
with a person who is under the influence of liquor. Rajkumar had told him that he was taking his daughter to the shop of Vijay Pandit.,,
After carefully going through the statement of P.W. 4, we are of the opinion that despite the fact that this witness was aware of the fact that",,
accused was heavily under the influence of liquor, he had sent his daughter with him. This witness has admitted that one should not send one's",,
daughter with a person who is under the influence of liquor but there is no explanation as to why he sent his daughter with the accused knowing that,,
he was heavily under the influence of liquor. P.W. 4 admitted that he used to take liquor with the accused, whereas, father of P.W. 4 has denied that",,
P.W. 4 took liquor. As per P.W. 4, accused had taken his daughter to the shop of Vijay Pandit and after buying the 'thing' from the shop, he had taken",,
her to a 'khandahar' (ruin). However, Vijay Pandit, most important witness, has not been examined by the prosecution during trial to substantiate the",,
fact that accused had visited his shop along with the victim. Moreover, in case the daughter of this witness (P.W. 4) had left with the accused in the",,
morning at 9.00 A.M. then why the police was not immediately informed when his daughter had not returned home. It is also not understandable as to,,
why P.W. 4 did not approach the accused after some time to enquire about the whereabouts of his daughter in case he had actually sent his daughter,,
with him. Accused was not a stranger to P.W. 4. Rather FIR was lodged on the next day at 11.00 A.M. Although complainant, Ramkunwar P.W. 1",,
has stated in his cross-examination that he had gone to lodge the report with the police in the evening, however, FIR was not registered by the police,",,
but the said fact has not been corroborated by Subhash Chand P.W. 4. Hence, we are of the opinion that the testimony of P.W. 4 fails to substantiate",,
the evidence of last seen of the deceased in the company of the accused.,,
Thus, the circumstance of last seen is rendered doubtful because so far as statement of P.W. 1, complainant is concerned, his testimony appears",,
to be hearsay. So far as father of the deceased is concerned, it is not understandable as to why he allowed his daughter to accompany a person who",,
was heavily under the influence of liquor. It is not the case of P.W. 4 father of the deceased that he had immediately approached the police but no,,
FIR was registered by the police. As per P.W. 4, accused had taken the deceased to the shop of Vijay Pandit for buying a 'thing' for her but Vijay",,
Pandit, shopkeeper has not been examined during trial by the prosecution to substantiate the said fact. Withholding of the said material witness renders",,
testimony of P.W. 4 doubtful. In these circumstances, delay in lodging the FIR also gains significance. Accused had allegedly taken the deceased with",,
him at about 9.00 A.M. on 01.02.2015 but the FIR was lodged on 02.02.2015 at 11.00 A.M.,,
From the cross-examination of the prosecution witnesses it transpires that there was some dispute between P.W. 4 Subhash and his wife. Some of,,
the prosecution witnesses (as discussed above) have also stated that there was some dispute between P.W. 4 and his wife and he had not got married,,
to the lady who was residing with him as his wife. The said lady had been brought by P.W. 4 from another State.,,
P.W. 1 Ramkunwar has deposed in his cross-examination that he was residing with Subhash in the same house alongwith his wife and his,,
grandson aged seven years. This witness has also not talked about the mother of the victim living in their house, whereas, from the testimony of P.W.",,
4 Subhash, it transpires that mother of the victim was not at home when accused had visited his house. This shows that material witnesses P.W. 1 and",,
P.W. 4 have not come with true facts and have suppressed the truth. P.W. 1 has denied that his son used to take liquor but P.W. 4 Subhash had,,
admitted that he used to consume liquor. Thus, no reliance can be placed on the testimony of P.W. 1 and P.W. 4 vis-Ã -vis circumstance of last seen.",,
P.W. 8 Gajraj has deposed that he had seen the deceased going with the accused on 01.02.2015. In cross-examination, he stated that he had not",,
gone to the house of Subhash. He did not know whether Subhash and Rajkumar were friends or used to take liquor together. He had not told the,,
police that Rajkumar had raped and murdered Muskan. He did not know who had murdered Muskan. Thus, testimony of this witness fails to advance",,
the prosecution case.,,
P.W. 5 Ram Singh deposed that the house of the accused was in front of his house. On the day of incident, he had seen Rajkumar going towards",,
the house of his parental grandfather along with Muskan, aged about five years. They had gone to another village to attend a marriage in his family.",,
On the next day, he came to know about the incident. At that time, everybody was naming Rajkumar @ Dharmendra as an accused. In his cross-",,
examination, he deposed that there was no person named as Subhash son of Ramkunwar in the village. He knew Ramkunwar, who was grandfather",,
of the child. Subhash was not son of Ramkunwar. Ramkunwar had only one son whose hand was cut. He did not remember the name of the said,,
person. Muskan was daughter of the said person. He admitted that the 'khandahar' (ruin) had one gate and the same remained locked. He did not,,
know who had taken Muskan to the 'khandahar' (ruin) or had raped her. Thus, the statement of this witness also fails to advance the prosecution case.",,
Other witnesses examined by the prosecution to establish the circumstance of last seen are the persons who were allegedly sitting at chaupal.,,
P.W. 2 Satyanarayan deposed that daughter of Subhash and granddaughter of Ramkunwar had gone missing on 01.02.2015 and her dead body,,
was found in a 'khandahar' (ruin) on 02.02.2015. He knew the accused. He had taken Muskan with him. They were about 20 persons sitting at,,
chaupal. They did not stop the accused as he might have been taking the child with him with the consent of her family members. Accused raped the,,
child and then committed her murder and kept her in a box. Accused was not of a good character. In his cross-examination, he deposed that when he",,
was sitting at chaupal, he had not seen the child playing around but had seen her being taken away. He had not seen them while taking any stuff from",,
the shop of Vijay Pandit. He admitted that Subhash had not got married but had kept a lady from another State as his wife. Subhash was also a liquor,,
addict. Accused and Subhash used to drink together and were friends. He admitted that there was no way to enter the 'khandahar' (ruin). He admitted,,
that on account of elections there was public on the road.,,
P.W. 3 Lalchand has corroborated statement of P.W. 2 in his examination-in-chief. In his cross-examination, he deposed that he had seen",,
Rajkumar taking the girl with him at about 12 O' Clock. He had not witnessed the incident, nor had asked Rajkumar as to why he was taking the child",,
with him because he did not have any suspicion on him.,,
P.W. 6 Lalaram has corroborated statement of P.W. 2. In his cross-examination, he deposed that he could not tell whether Subhash and Rajkumar",,
were friends. He had not seen them taking liquor together. Muskan was playing outside her house. He had not seen Rajkumar going towards the,,
house of Subhash or returning from his house. There was a dispute between Subhash and his wife.,,
P.W. 7 Hoshiyar has also corroborated statement of P.W. 2. In his cross-examination, he deposed that the child was playing alone in front of the",,
house. He did not know whether Subhash or his father were present in the house or not. He did not know whether Subhash and Rajkumar were,,
friends. He admitted that Subhash had been taken by the police.,,
Statements of P.W. 2, P.W. 3, P.W. 6 and P.W. 7 also fail to advance the prosecution case when examined in the light of the testimony of P.W.",,
4, father of the deceased.",,
Circumstance of recovery of dead body:,,
Let us examine the evidence on record led by the prosecution with regard to recovery of dead body from the house of Rajendra at the instance of,,
the accused.,,
As per Investigating Officer, P.W. 19 Virendra Pal, the place from where the dead body of the deceased was recovered was disclosed by the",,
accused in his disclosure statement offered under Section 27 of the Indian Evidence Act, 1872 and thereafter, he had led the police party to the spot",,
for effecting recovery. In his cross-examination, P.W. 19 Virendra Pal deposed that the place of incident was a house owned by Rajendra. The place",,
of incident was a closed place from all four corners but the roof was open. He further deposed that the main door of the place of the incident was,,
lying locked and the lock was broken with the help of villagers and thereafter, they entered the house. P.W. 19 proved memo Exhibit P-11 according",,
to which dead body was recovered from the house owned by Rajendra.,,
P.W. 9 Omprakash, Constable has corroborated the statement of P.W. 19 Virendra Pal, Investigating Officer with regard to preparation of Exhibit",,
P-11 and site plan Exhibit P-4. The said witness in his cross-examination deposed that the place of incident where they had entered was not locked,,
but it was bolted as there was only one gate from which one could enter the building which was in ruins. He could not tell how many rooms were,,
there in the building (haveli). Many persons from the village were standing at a distance from the building. Grandfather of the deceased was not,,
present there. He was later called to the police station.,,
A perusal of Exhibit P-11 reveals that the dead body was recovered from the house owned by Rajendra. The said document is signed by the,,
accused and is thumb marked by the complainant. Exhibit P-4 is the site plan of the place of recovery of dead body. The same is also signed by the,,
accused and thumb marked by the P.W. 1. From the statement of P.W. 9 it is evident that so far as thumb impressions of the complainant on Exhibit,,
P-4 and Exhibit P-11 are concerned, they were obtained in the police station as P.W. 1 was not present at the place of incident from where the dead",,
body was recovered. No other independent witness has been examined by the prosecution to corroborate the version of the police officials that,,
recovery of the dead body was effected from the building which was lying in ruins at the instance of the accused. Even owner of the building has not,,
been examined to corroborate the said version of the police officials. As per Investigating Officer, P.W. 19, lock on the gate of the building was",,
broken with the help of villagers. However, none of the said villagers has been examined as a witness to corroborate the testimony of P.W. 19",,
Virendra Pal. Accused was already in police custody. Hence, it cannot be said that there was an urgency to enter the building by breaking the lock (as",,
deposed by P.W. 19). Police officials could have called the owner of the building and got the lock opened before entering the premises or should have,,
at least joined the villagers as witnesses in whose presence the lock of the building had been broken.,,
There is also no material on record to show as to how the accused had entered the premises because it was lying locked (as per P.W. 19) and the,,
building had only one gate. Thus, the circumstance of recovery of the dead body at the instance of the accused is also rendered doubtful.",,
Apart from circumstance of last seen as well as circumstance of recovery of dead body of the deceased at the instance of the accused,",,
prosecution has not brought on record any other circumstance connecting the accused with the crime. In a case resting on circumstantial evidence,",,
prosecution is required to complete the chain of circumstances leading towards the guilt of the accused and negating his innocence. However, in the",,
present case, prosecution has failed to complete the chain of circumstances leading towards the guilt of the accused. Rather, the possibility that",,
someone else might have committed the crime cannot be ruled out. Prosecution case has rendered doubtful on account of following reasons:,,
(i) Circumstance of last seen of the deceased in the company of the accused has rendered doubtful because statement of P.W. 1 Ramkunwar,",,
grandfather of the deceased is merely hearsay. Statement of father of the deceased, i.e. Subhash P.W. 4 does not inspire confidence (as discussed",,
above). Since the statements of the father and grandfather of the deceased are rendered doubtful to establish the circumstance of last seen,",,
statements of other witnesses examined by the prosecution to establish the circumstance of last seen also cannot be relied upon to base the conviction,,
of the accused.,,
(ii) Prosecution has failed to examine shopkeeper, Vijay Pandit to corroborate the circumstance of last seen. As per the father of the deceased,",,
accused had taken his daughter to the shop of Vijay Pandit and after making purchase from the said shop, he had allegedly taken the victim to a",,
'khandahar' (ruin). Thus, as per the prosecution case itself, accused had taken the victim to the shop of Vijay Pandit for making a purchase but the",,
said shopkeeper has not been examined during trial to substantiate the said fact. Thus, material witness has been withheld by the prosecution and it",,
has denied the opportunity to the accused to cross-examination the said witness.,,
(iii) Exhibit P-18 is the medico-legal-examination report of the accused and a perusal of the same reveals that blood swab and semen swab of the,,
accused were taken. Exhibit P-18 has been proved by P.W. 14 Dr. Jaldeep Singh. Said witness has also stated that blood swab and semen swab of,,
the accused were drawn as samples and were sent to Forensic Science Laboratory for examination. P.W. 13 Dr. Punit Tiwari as well as P.W. 12 Dr.,,
Pushpendra, who had conducted post mortem examination of the deceased Muskan have stated that vaginal swab and blood sample of the deceased",,
were taken and were sent for examination to the Forensic Science Laboratory through proper channel. However, there is no report of Forensic",,
Science Laboratory on record comparing semen swab of the accused with the vaginal swab of the deceased. The said lapse renders the prosecution,,
case doubtful.,,
(iv) Exhibit P-28 is the report of Forensic Science Laboratory and a perusal of the same reveals that blood group of the human blood found on the,,
piece of stone and T-shirt recovered at the instance of the accused were inconclusive. As per the said report, the human blood found on the inner of",,
the deceased was of blood group 'B'. Thus, Exhibit P-28 also fails to advance the prosecution case with regard to involvement of the accused in the",,
crime.,,
(v) The place from where the dead body was recovered belongs to Rajendra as is evident from Exhibit P-4. However, the said owner was not",,
examined as a witness during trial to corroborate the circumstance that the dead body of the deceased was recovered from his house at the instance,,
of the accused. As per prosecution witnesses, the house from where the dead body was recovered was lying locked. As per P.W. 19, Investigating",,
Officer, Virendra Pal, the lock of the house was broken with the help of the villagers but there is no explanation as to why the key of the lock was not",,
obtained from the owner of the premises. None of the villagers have been joined as a witness to corroborate the police version with regard to,,
recovery of dead body from the 'khandahar' at the instance of the accused. As per P.W. 9, complainant P.W. 1 was not present at the spot but was",,
called later to the police station. Hence, it can be inferred that thumb impressions of P.W. 1 were obtained on Exhibit P-4 site plan and Exhibit P-11",,
(memo of recovery of dead body) in the police station. He further admitted in his cross-examination that owner of the shop, which was located behind",,
the house of Rajendra, was not questioned during investigation.",,
(vi) Although, some of the prosecution witnesses have stated that the accused was not having good character but P.W. 19, Investigating Officer in his",,
cross-examination admitted that accused was not involved in any other criminal case and in case, any complaint had been received, then the same",,
must have been disposed of. However, no document was brought on record to establish that accused was involved in any other criminal case.",,
(vii) As per P.W. 1 Ramkunwar and P.W. 4 Subhash, deceased had taken the victim with him at about 9.00 A.M. on 01.02.2015, whereas, FIR was",,
lodged on 02.02.2015 at about 11.00 A.M. The delay in lodging the FIR in the facts and circumstances of the present case also renders the,,
prosecution case doubtful.,,
(viii) Accused was arrested on 02.02.2015 but was got medically examined on 04.04.2015.,,
Keeping in view the totality of facts and circumstances of the case, we are of the opinion that the accused is liable to be acquitted by giving him",,
benefit of doubt as the prosecution has failed to complete the chain of circumstances leading towards his guilt and negating his innocence. There are,,
missing links in prosecution story to connect the accused with the crime-in-question.,,
Accordingly, death reference made by the trial court is declined.",,
The appeal preferred by the appellant is allowed. The conviction and sentence of the appellant as ordered by the trial court are quashed and set,,
aside. The appellant is acquitted of the charges framed against him. Appellant who is in custody, be set at liberty forthwith, if not required in any other",,
case.,,
Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Rajkumar alias Dharmendra is directed to furnish a",,
personal bond in the sum of Rs. 25,000/-, and surety bond of the like amount, before the Registrar (Judicial) of this Court, which shall be effective for",,
a period of six months with the stipulation that in the event of filing of Special Leave Petition against this judgment or on grant of leave, appellant",,
Rajkumar alias Dharmendra on receipt of notice thereof, shall appear before the Supreme Court.",,