The Allahabad High Court has rejected the death penalty to a man convicted of raping and murdering a minor girl and directed his immediate release.
The Division Bench of Justice Manoj Misra and Justice Sameer Jain passed this order while hearing a petition filed by Virendra Baghel.
The appellant (Virendra Baghel) has been convicted under Section 302, 201, 363, 376AB IPC and 3(2)(V) SC/ST Act vide judgment and order dated 17.09.2021/18.09.2021 passed by Additional District and Sessions Judge/ Additional Special Judge, POCSO Act, Firozabad and has been awarded following punishment:-
(i) death penalty under Section 302 IPC and 376AB IPC read with Section 3(2)(V) SC/ST Act
(ii) 7 years RI with fine of Rs 5,000 and in default one month additional imprisonment under Section 201 IPC and 363 IPC.
The appellant has also submitted his appeal from jail against the order, which has been forwarded by the Superintendent (Jail), Firozabad letter dated 23.09.2021. The appellant has prayed that the order of conviction and sentence recorded by the trial court be set aside and that he be acquitted of the charges.
The prosecution story is that an FIR was lodged by the informant on 26.04.2019, at about 6.10 hours at Police Station Linepar, District Firozabad, under Section 363 IPC, against an unknown person.
As per the FIR, on 25.04.2019, at about 11.00 AM, the deceased (i.e. daughter of the informant), aged about 11 years, had gone missing. The FIR neither named any suspect nor disclosed where the girl could have gone yet, without any basis it was registered under Section 363 IPC.
On 26.04.2019, at about 13.16 hours, information was received by the Police Station Basaipur Mohamadpur, Firozabad that the body of a girl was lying in Gram Sofipur behind the shop of Barashree in a burnt condition. This information is entered as G.D Entry at 13.16 hours on 26.04.2019 whereafter S.I Sahab Singh arrived at the spot and prepared the inquest report, by about 16.30 hours. By the time the inquest report was prepared, the identity of the body could not be established. Therefore, inquest proceedings were conducted in respect of an unknown body of a girl aged about 13 years.
After investigation, the Investigating Officer submitted a charge-sheet against the appellant under Sections 363, 302, 376AB, 201 IPC and Section 3(2)(V) SC/ST Act and 5(m) POCSO Act. After submission of charge sheet cognizance was taken and on 26.8.2019 charges were framed under section 363, 302, 376 A B, 201 IPC and 3(2)(v) SC/ST Act and 5(m)/6 POCSO Act against the appellant. Appellant denied all the charges and claimed trial.
After the prosecution evidence was recorded, the trial court recorded the statement of the appellant under Section 313 CrPC. The appellant denied the incriminating circumstances and stated that the dead body of an unknown girl was recovered in a decomposed condition; without identification, an inquest report was prepared; and merely on the basis of suspicion, he has been accused.
Trial court found following incriminating circumstances proved:-
(i) The deceased was last seen alive in the company of the appellant on 25.04.2019, firstly, at about 11.00 am near the railway crossing by the Aunt of the deceased and, secondly, at about 11.30 am near SBI RamNagar by the neighbour of the informant and thereafter, she was not seen alive;
(ii) Body of the deceased was recovered on 26.04.2019. The autopsy conducted on 27.04.2019 and the serologist report disclosed that she was raped and murdered two days before;
(iii) On the disclosure made by the appellant on 28.04.2019 blood stained brick and slippers of the deceased was recovered;
(iv) At the time of arrest on 28.04.2019, the jeans worn by the appellant carried blood stain; and
(v) The serologist report confirmed the presence of human blood on the brick recovered at the instance of the appellant as also on the jeans and nail clippings of the appellant.
The trial court found that the proven circumstances constituted a chain so complete that it conclusively pointed towards the guilt of the appellant and as the appellant failed to discharge the burden placed upon him under Section 106 of the Evidence Act to explain as to why he should not be held guilty, convicted the appellant and sentenced him accordingly as already noticed above.
The counsel for the appellant submitted that there is no admissible evidence on record against the appellant and trial court failed to appropriately appreciate the evidence on record and wrongly convicted the appellant in the case.
The counsel for the appellant further submitted that perusal of the FIR shows that it was lodged against unknown person but the informant, who lodged the FIR, in her testimony stated that she had named the appellant. This shows that prosecution did not come with clean hands and have contrived the story on suspicion/guess work.
He also submitted that as per the informant, after the FIR, the appellant was apprehended by the informant and others and was handed over to the police and, therefore, the prosecution story that the appellant was arrested by the police on 28.4.2019 on the information of an informer, appears false and as arrest of the appellant become doubtful, the alleged recoveries at the instance of the appellant would neither be admissible nor can be used against the appellant.
The counsel for the appellant said that the evidence of the aunt of the deceased and the neighbour of the informant in respect of the circumstances of last seen is neither reliable nor conclusive. Further, even if it is accepted then too, merely on the basis of the evidence of last seen, the appellant cannot be convicted as the time gap between the appellant last seen alive with the deceased and the recovery of the dead body is very large.
Moreover, the prosecution has failed to show that the place where the deceased was last seen alive with the appellant was in close proximity to the place from where her body was recovered.
The counsel for the appellant further said that though the serological report mention that human blood was found on the jeans (pant) of the appellant but the recovery memo of the pant does not mention blood stain on the pant, therefore, it appears, after recovery of the pant, false evidence was created by the police. Moreover, the blood group was not matched with the deceased. Hence, it cannot be said with certainty that the blood found on the pant of the appellant was of the deceased. He also submitted that the dead body of the deceased was found in village Sofipur, behind the shop of Barashree, within the jurisdiction of police station Basi Mohammad Pur whereas, according to the prosecution, the place of incident was a half constructed room. This place is totally different from the place from where the dead body was found. Thus, the alleged disclosure statement becomes totally doubtful because if the appellant, after committing rape and murder, covered the body in a half constructed room with bricks how the same was recovered from some other place. Therefore, the prosecution story appears false and no reliance can be placed on it.
The counsel for the appellant submitted that the case is a case based on circumstantial evidence; the prosecution miserably failed to prove the incriminating circumstances beyond reasonable doubt and the chain of circumstances was not complete and, therefore, conviction and sentence recorded by court below is liable to be set aside.
Per contra, AGA submitted that there is evidence on record which proves that the appellant was last seen along with the deceased and on the same day, deceased was murdered; that apart from last seen evidence, on the pointing out of the appellant blood stained bricks were recovered and as per the forensic lab report, on the bricks human blood was found. As per evidence of autopsy surgeon, the vagina was found ruptured, therefore, it is apparent that before murder the girl was raped.
AGA further submitted that forensic lab report confirmed that on the jeans of the accused appellant there was human blood and in nail clipping of the appellant, blood was found, which is a corroborative piece of evidence confirming the involvement of the appellant in the rape and murder of the deceased.
AGA also submitted that the prosecution has successfully proved the chain of circumstances and the trial court rightly convicted the appellant. On the question of sentence, learned counsel for the state submitted that since it is a case of rape of a minor girl and, thereafter, the girl was brutally murdered, death sentence awarded to the appellant is justified and, therefore, the appeal is liable to be dismissed and death penalty awarded by the trial court should be confirmed.
“From above, it is clear that for conviction to rest solely on circumstantial evidence, it is necessary for the prosecution to prove beyond reasonable doubt each of the circumstances that is to be relied against the accused and must demonstrate that the circumstances form a chain so complete that it leaves no reasonable ground for the conclusion consistent with the innocence of the accused and shows that in all human probability the act has been done by the accused.
It is clear that before shifting the burden upon the accused to furnish an explanation of the incriminating circumstances appearing against him, it is necessary for the prosecution to prove its case beyond reasonable doubt.
In the case the prosecution has failed to prove beyond reasonable doubt that the deceased was last seen alive with the accused-appellant and that the recoveries were made at the instance of the appellant therefore, burden could not have been placed upon the appellant to explain those circumstances. Thus, in our view, the court below wrongly took aid of the provisions of Section 106 of the Evidence Act to convict the appellant.
In view of the discussion made above, we are of the considered view that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt, the conviction of the appellant is therefore unsustainable,” the Court observed while allowing the appeal.
“The judgment and order of the trial court is set aside. The reference to confirm the death penalty is rejected. I acquit the appellant of the charges for which he has been tried. As he is in jail, he shall be released forthwith, unless wanted in any other case, subject to compliance of the provisions of section 437-A CrPC to the satisfaction of the trial court below,” the Court ordered.