Allowed

Rasheed v. State of U.P.

Allahabad HC9 Oct 2023CRLA/5886/2017

Case brief

AI extract

What is this about?

High Court allowed appeals in rape and murder conviction. Court set aside conviction on ground that prosecution failed to establish chain of circumstantial evidence due to unreliable last-seen witnesses, flawed recovery memo, and dog squad involvement. Released appellants.

What did the court decide?

Conviction and sentence set aside. Appellants released from jail forthwith subject to Section 437-A Cr.P.C.

Rasheed Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:193819-DB

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Court No. - 46

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Case :- CRIMINAL APPEAL No. - 5886 of 2017

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Appellant :- Rasheed Respondent :- State of U.P. Counsel for Appellant :- Ghan Shyam Das,Kamal Krishna Counsel for Respondent :- G.A.,Anil Kumar Verma

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Connected with

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Case :- JAIL APPEAL No. - 214 of 2021

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Appellant :- Buddhu @ Yunus Respondent :- State of U.P. Counsel for Appellant :- From Jail,Brijesh Tiwari,C.L. Chaudhary,Kanchan Chaudhary Counsel for Respondent :- A.G.A.

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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These two appeals are directed against the judgment and order of conviction and sentence dated 6.9.2017, passed by Additional District & Sessions Judge/Fast Track Court, Kanpur Dehat, in Sessions Trial No.292 of 2013 (State Vs. Rasheed and another), arising out of Case Crime No.29 of 2013, Police Station Chaubeypur, District Kanpur Dehat, whereby the accused appellants Rasheed and Buddhu @ Yunus have been convicted and sentenced to life imprisonment alongwith fine of Rs.25,000/- each under Section 302 IPC and on failure to deposit fine to undergo additional simple imprisonment for a year each; 10 years rigorous imprisonment alongwith fine of Rs.20,000/- each under Section 376(2)(g) IPC and on failure to deposit the fine to undergo additional simple imprisonment for a year each; and 3 years rigorous imprisonment alongwith fine of Rs.5,000/- each under Section 201 IPC and on failure to deposit the fine to undergo additional simple imprisonment

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(2)

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for three months each. Sentences are to run concurrently.

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Deceased in this case is the granddaughter of informant Smt. Kammo, whose dead body was found in a drain behind Saluja Cold Storage on 27.2.2013. The exact time when the dead body was recovered is not known. A first information report came to be lodged at 12.15 pm on 27.2.2013, as per which the deceased had gone with informant to Village Rahmat Nagar in the marriage of one Naffar D/o Rukhsar. The victim was seen during the marriage festivity till 10.00-10.30 in the night and had disappeared thereafter. The informant alleged that deceased has been done to death by accused Rasheed s/o Sayid and Buddhu s/o Ismail, R/o Rahmatnagar, Police State Chaubeypur. The prosecution case relies upon testimony of four witnesses, namely Kammo (PW-1), who happens to be the grandmother of the deceased; Layik (PW2), father of the deceased; Sartaj (PW-3), who happens to be the brother-in-law of the informant, inasmuch as wife of Sartaj is the real sister of PW-1. The fourth witness in this case is Harishchandra (PW-4). It has come in evidence that Harishchandra has given his land on lease to Sartaj for the purposes of cultivation etc. The other witnesses include Dr. Jaiprakash (PW-5), who is the autopsy surgeon, while Kashmir Singh (PW-6) is the Head Moharrir. PW-7 Udai Pratap is the first Investigating Officer, while PW-8 Bhimsen is the second Investigating Officer, who has submitted the chargesheet in the case.

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During the investigation the clothes worn by the deceased were found at some distance from the place where her dead body was lying and such recovered clothes have been exhibited as Ex. Ka-6 during the trial. Slippers worn by the deceased have also been recovered during investigation and exhibited as Ex. Ka-7 during the trial. It is the

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(3)

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prosecution case that slippers have been recovered on the joint pointing out of the two accused appellants, namely Rasheed and Buddhu.

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This is a case based on circumstantial evidence and the prime evidence led by the prosecution against the two accused appellants is in the nature of testimony of PW-3 and PW-4, who allege that they saw the deceased being taken by the two accused in the night. PW-3 and PW-4, therefore, are witnesses of last seen. The other circumstance against the accused appellants is in the nature of recovery of slippers of deceased on the joint pointing out of PW-3 and PW-4. The motive attributed to the accused appellants is that the appellant Rasheed was objecting to the sale of house in favour of the informant. Specific details in respect of transaction, however, have not been produced during trial.

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Trial court on the basis of evidence led in the matter has found the complicity of the two accused appellants established beyond reasonable doubt, and consequently the appellants have been convicted and sentenced as per above.

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The appeals are pressed at the instance of two accused appellants, primarily on the ground that the testimony of two witnesses of last seen are not reliable, inasmuch as PW-3 Sartaj although had accompanied the informant to the police station for lodging of the FIR, but the FIR contains no narration of the alleged last seen by PW-3, and the statement of PW-3 has been recorded after 42 days. Similarly about PW4 it is stated that he is an interested witness as he has given his land on lease to PW-3 and his statement also has been recorded after 42 days, for which there exists no explanation.

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Sri Kamal Krishna, learned Senior Counsel for the

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(4)

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appellant submits that evidence of recovery is not reliable, inasmuch as the recovery of slippers were made on the date of incident itself, when the dead body was found but the recovery memo of slippers has not been proved, inasmuch as none of the independent witnesses of recovery have been produced in evidence. It is further argued that recovery is also not reliable for the reason that Dog Squad had been pressed into service and the Investigating Officer, in his testimony, has admitted that the Dogs employed by the Squad had sniffed the area and arrived at the place where the slippers were lying. It is, therefore, submitted that once the slippers had already been located by the Sniffer Dogs, the prosecution case that these slippers were recovered on the pointing out of the accused appellants merit no reliability.

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Per contra, learned AGA and Sri Sanjay Kumar Srivastava for the informant state that chain of events have been connected by the prosecution such that the hypothesis of guilt, attributed to the accused appellants, are clearly established, and therefore, the appeals lack merits.

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Arguments on behalf of accused Buddhu has also been advanced by Mrs. Kanchan Chaudhary, learned Amicus Curiae, who submits that the implication of the accused appellant Buddhu, in facts of the case, is clearly not established. She has adopted the submissions advanced by Sri Kamal Kishna, learned Senior Counsel.

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Admittedly this is a case of circumstantial evidence and the law applicable for adjudication of such cases stands crystallized by the Supreme Court in Sharad Birdichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, wherein the Supreme Court has laid down five golden principles in paras 152 and 153, which are reproduced hereinafter:-

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(5)

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“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

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“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

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A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

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“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the

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(6)

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innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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We have perused the records of the present appeals, as also the original records, which would clearly reveal that the victim has suffered a homicidal death, as she was found to have suffered following ante-mortem injuries:-

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“(i) Contusion 5cm x 4cm at top of head, underlying muscle contused.

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(ii) Abraded contusion 1cm x 1 cm Rt. side neck 7cm below root of ear.

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(iii) Contusion 7cm x 6cm Lt. upper arm 1/3 and underlying bone of humorus fractured.

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(iv) Contusion 6cm x 5cm Rt. elbow and fracture L/3 humorus.

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(v) Contusion over sacral region 5cm x 3cm.

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(vi) Laceration over perineal region from vagina to rectum and on probing goes deep abdominal cavity. On dissection of abdomen and pelvis uterus ruptured and large intestine with omentum and adnexa of uterus ruptured, pelvis cavity filled with blood.”

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The immediate cause of death is shock and haemorrhage due to ante-mortem injuries, which are extracted above. One of the injuries include laceration over perineal region from vagina to rectum. The Autopsy Surgeon has proved the postmortem (Ex.Ka-2) and in his opinion the sixth injury could have been caused on account of sexual assault. Although in the cross-examination the doctor has admitted that no slides were prepared of the victim and no signs of male semen were found for the reason that apparent signs of sexual assault were not visible, yet, it is quiet apparent that 8 year old minor victim was subjected to sexual assault and later she was done to death on account of antemortem injuries. The inquest has also been conducted on 27.2.2013, which is duly exhibited as Ex.Ka-8. The prosecution, therefore, has succeeded in proving the fact that the deceased was a 8 year old minor girl, who has been subjected to sexual assault and then she was done to death. The death of deceased is homicidal.

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(7)

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The question raised in this appeal is as to whether the prosecution has been able to connect the chain of events such that it supports the hypothesis of guilt attributed to the accused appellants and there exists no hypothesis available consistent with his innocence?

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We have carefully examined the evidence on record and it is apparent that PW-1 and PW-2 are not the witnesses of last seen. They have neither seen the deceased being taken by the accused, nor from their testimony any other incriminating material against the two accused appellants are shown to exist. The testimony of PW-1 is relevant only for the purposes of establishing motive on part of the accused appellants to commit the offence. PW-1 in her chief examination has stated that about two years prior to the incident she had purchased a house next to the house of the accused Rasheed, who objected to it. This objection was conveyed by the accused to the informant. She has further stated that after she purchased the house, the accused Rasheed and his friend Buddhu started maintaining enmity with her. In the cross-examination PW-1, however, has admitted that though this enmity has continued for about two years but no incident has occurred during this period nor any fight, quarrel or any litigation has taken place between them. The testimony of PW-1 is specific on the aspect of enmity but the cause of enmity is not clearly established or proved. PW-1 has specifically admitted in her testimony that the only objection raised by accused Rasheed to the purchase of house by the informant was to the informant herself and to no one else. There was neither any scuffle nor any fight nor any litigation etc. There is thus no independent corroboration of the plea of enmity. We are, therefore, not impressed by the motive attributed to the accused appellants, inasmuch as the

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motive suggested by the informant is not strong enough, which may result in a brutal act of sexual assault and murder of eight year old minor victim.

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So far as the testimony of PW-3 and PW-4 is concerned, it is apparent that they are the only two witnesses of last seen. Evidence on record shows that Sartaj had gone with the informant to lodge the FIR. The GD Entry has been placed before us from the original records, which contains a specific recital to the effect that Sartaj son of Sakir had accompanied the informant to the police station. In the event Sartaj had seen the two accused taking the deceased with them, it was expected that such vital information would be mentioned in the written report, on the basis of which FIR has been lodged. The fact that no such disclosure is made in the written report (Ex.Ka-1) is apparent on record. We also find from the testimony of Investigating Officer (PW-7) that while investigation remained pending with him, for over 14-15 days, no evidence of last seen had surfaced by then. We also find from the testimony of PW-8 (the second Investigating Officer) that statement of PW-3 and PW-4 was recorded after about one and a half month of the incident. Even the statement of PW-1 about last seen has been recorded by the Investigating Officer on 9.4.2013 while recording her second statement, which is after a month. Further statements thereafter were recorded of PW-3 and PW-4. We also find that PW-1 and PW-2 have both stated that PW-3 was aware of the enmity between the informant and the accused and his act of not objecting to the taking of the deceased, fairly late in the night, appears to be highly unreasonable and renders his testimony doubtful. There is no reference of last seen evidence of PW-3 and PW-4 in the first statement of the informant. PW-4 otherwise appears to be an interested witness, inasmuch as he has

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(9)

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admitted that he had given his land on lease to PW-3. From the evaluation of evidence on record, we are not inclined to accept the testimony of PW-3 and PW-4 as witness of last seen firstly for the delay recorded in their statement by the Investigating Officer and also in view of the close association of PW-3 with the first informant. We are inclined to accept the argument of the counsel for the appellants that such important information was expected to have been narrated in the written report itself, particularly as PW-3 had accompanied the informant to police station. The prosecution evidence of last seen, therefore, is not found credible.

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The only other evidence in this case to connect the accused appellants is the alleged recovery of slippers of the deceased on the pointing out of the accused appellants. There is admittedly no disclosure statement of the accused appellants with regard to the place at which the slippers had been kept by them and in its absence the recovery itself would loose much of its sheen. Recovery is otherwise from an open field at a small distance fromwhere the body was recovered. We also find from the testimony of PW-7 that the Dog Squad had been called from Kanpur and the sniffer dogs had come to the place where the clothes of deceased as well as her slippers were kept. Once the sniffer dogs had already taken the police team to the place where the slippers were kept, we are not inclined to accept the prosecution case that this recovery of slippers was on the pointing out of the accused appellants. The recovery otherwise is not established, since Ex. Ka-7, which is the recovery memo of slippers, has not been proved by producing any independent witness. No time otherwise is mentioned in the recovery memo as to when the recovery was made.

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Apart from the evidence of last seen and recovery of

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slippers, there is no other evidence produced by the prosecution to establish the complicity of accused appellants in commissioning of the offence. We have already held that motive attributed for such heinous sexual assault and murder of an eight year old minor has not been established by the prosecution. Once the testimony of last seen and the recovery is also discarded, there remains no other evidence on record to establish the chain of events in the present case of circumstantial evidence to implicate the accused appellants.

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Although the trial court has convicted and sentenced the accused appellants but neither the testimony of PW-3 and PW4 has been carefully examined in light of the deliberations made by us nor the falsity of the recovery of slippers has been evaluated in view of the evidence on record. Trial court has also omitted to consider the testimony of PW-7 with regard to requisitioning of Dog Squad as well as the fact that sniffer dogs had already located the slippers and the clothes of the deceased.

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Upon evaluation of evidence brought on record, we have no hesitation in holding that the prosecution has miserably failed to connect the chain of events in the present case of circumstantial evidence, so as to establish the hypothesis of guilt exclusively attributed to the two accused appellants.

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The appeals, consequently, succeed and are allowed. The conviction and sentence of the accused appellants, vide judgment and order dated 6.9.2017, is set aside. The accused appellants Rasheed and Buddhu @ Yunus shall be released from Jail, forthwith, unless they are wanted in any other case, subject to compliance of Section 437-A Cr.P.C.

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