STATE OF U.P. v.

RAJA @ JALIL (Criminal Appeal No. 1310-1311 of 2002)

AUGUST 28, 2008 (DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB ALAM, JJ)

The Order of the Court was delivered by

Dr. ARIJIT PASAYAT,J.  Heard. Challenge by the State of Uttar Pradesh in these appeals is to

the  judgment  of  a  Division  Bench  of  the  Allahabad  High  Court directing acquittal of the respondent Raja @ Jalil (hereinafter referred to as the ‘accused’). Learned Sessions Judge, Barabanki had found the  accused  guilty  of  offences  punishable  under  Sections  302, 376/511 Indian Penal Code, 1860 (in short ‘IPC’) and imposed death sentence and three years respectively.

The accused  filed  appeal  from jail  and  a  represented  appeal through counsel. A reference was made to the High  

Court under Section 366 of Code of Criminal Procedure, 1973 (in short  ‘CrPC’)  for  confirmation  of  death  sentence.  The  High  Court disposed  of  all  the  three matters  by the  impugned judgment.  The allegation against the accused was that he had taken a girl of about 11 years of age namely Kumari Reema, tried to commit rape on her and killed her. According to the prosecution on 17.10.1994 at about 8 a.m. the accused requested the mother of the deceased to allow the deceased to  accompany him for  harvesting paddy crop in the fields  of  Naumi Lal  and Ganga Ram. Since the deceased did not return late in the evening, Sushila Devi, the mother of the deceased, went to the house of Naumi Lal and Ganga Ram who told her that paddy crop in the field was not even ripe for harvesting. Thereafter Sushila Devi continued to search for her missing daughter and went to the market, where in front of the house of one Yaseen Chikwa, she met  Jung  Bahadur,  Jagat  Narain,  Vishwanath,  Ram Shankar  and others. In the meantime, Ganga Ram accompanied by the accused arrived there. Vishwanath and Ram Shankar told Sushila Devi that they had seen the deceased going along with the accused around 8 or  9  A.M.  On  hearing  this,  the  accused  started  running  but  was

chased  and  apprehended.  It  was about  10 P.M.  at  that  time.  On being  interrogated,  the  accused  stated  that  he  had  taken  the deceased for harvesting paddy crop in the field of Ganga Ram. After some paddy crop was cut, he overpowered her and took her to the field of Ram Khelawan Yadav and tried to commit rape. When the deceased resisted, he wanted to close her mouth, the deceased bit on his hand whereupon the accused struck Khurpa on her neck and killed her. The accused led all these persons to the sugarcane field of  Ram Khelawan Yadav and the dead body was pointed out.  He further led to his house and handed over the blood stained Khurpa. FIR was lodged at the police station. A case was registered.  Post mortem was conducted and 14 injuries were found.

The  appellant  was  also  medically  examined  after  he  was apprehended by Dr. J.P. Bhargava PW5 who found seven injuries on the body of the accused. Injury No. 3 was kept under observation and the accused was referred to the District Hospital Barabanki for the opinion of surgeon.  

Similarly, injury Nos. 4 and 6 were also kept under observation. After completion of the investigation, a charge sheet was filed. Since the  accused  pleaded  innocence,  trial  was  held.  Seven  witnesses were  examined  to  further  the  prosecution  version.  Sushila  Devi (PW1) stated about the request made by the accused to allow the deceased to accompany him. Learned Sessions Judge was of the view that  the  case  rested  on  circumstantial  evidence  brought  on record. Accordingly, the accused was found guilty.

As  noted,  at  the  outset,  the  accused  filed  two  appeals  and reference  was  made  by  the  trial  court  to  the  High  Court  for confirmation of death sentence.

The  High  Court  found  that  the  prosecution  version  lacks credibility.  The serious injuries sustained by the accused were not explained. The evidence of PW1 was also found to lack credence. The  High  Court  found  that  the  evidence  relating  to  extra  judicial confession on which the prosecution version rested was not reliable. There was serious injury on the eyes of  the accused. There were also other injuries sustained by him. The High Court  analysed the evidence and taking note of the nature of injuries, came to hold that it was possible to infer that the accused was given a thorough beating which resulted injuries on his body.

Finding  circumstance  to  be  insufficient  to  fasten  guilt  on  the accused, the High Court directed acquittal.

Learned  counsel  for  the  appellant  submitted  that  the circumstances  highlighted  by  the  trial  court  were  sufficient  to conclude  that  the accused was guilty of  the offences as charged. Learned counsel for the respondent on the other hand supported the judgment of the High Court.  

It  is fairly well-settled that when a case rests on circumstantial evidence,  a complete chain of circumstances which rule out every other possibility except guilt of the accused has to be established.

That being so, the High Court’s view was that the circumstances were not sufficient to fasten the guilt on the accused. The High Court has rightly noted that alleged extra judicial confession was extracted from the  accused  by assaulting  him severely.  The injuries  clearly indicate  that  the  accused  was  beaten  very  badly  after  he  was allegedly apprehended. Therefore, the findings of the High Court that the so-called extra judicial confession was not voluntarily or natural cannot  be  faulted.  Additionally  the  evidence  of  mother  of  the deceased was full of contradictions and inconsistencies.

Looking at from any angle, we find no merit in these appeals which are dismissed.