# Bal Govind @ Govinda v. State of U.P

- **Citation:** (2021) 11 ILRA 30
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-18
- **Case number:** Capital Cases No. 5 of 2021
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-govind-govinda-v-state-of-u-p-46507
- **Pages:** 17

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- There must
be a chain of circumstances 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. The circumstances
concerned 'must or should' and not 'may be'
established. The prosecution evidence may, at
best, give rise to a suspicion against the
appellant but fails to prove the circumstances
of a conclusive nature and tendency from
which we may, with certitude, hold that the
accused has committed the crime.

Settled law that in a case of circumstantial evidence
the prosecution has to link the chain of circumstances
that leaves no other conclusion but the guilt of the
accused.

Evidence Law - Indian Evidence Act, 1872-
Section 7 - Section 114- Circumstantial
Evidence - "Last Seen" alive in the company of
the accused- Ordinarily, the circumstance of
the deceased being last seen alive with the
accused may alone not be sufficient to record
conviction-But, it is an important link in the
chain of circumstances that would point
towards the guilt of the accused with some
certainty. The last seen theory comes into play
where the time-gap between the point of time
when the accused and the deceased were seen
last alive and when the deceased is found dead
is so small that possibility of any person other
than the accused being the author of the crime
becomes impossible. It would be difficult in
some cases to positively establish that the
deceased was last seen with the accused when
11 All. Bal Govind @ Govinda Vs. State of U.P.
31
there is long gap and possibility of other
persons coming in between exists.

The theory of the deceased having been last seen in the
company of the accused comes into play only where the
duration of the accused last seen in the company of the
deceased and the recovery of the dead body is so
minimal that the possibility of any other person
interfering is ruled out.

Evidence Law - Indian Evidence Act, 1872-
Section 118- Competency of Witnesses- Child
Witness- A child witness is as much a competent
witness as any other witness but, as a rule of
prudence, before recording the testimony of a
child, the court must undertake an exercise to
find out whether the child understands the duty
of speaking the truth. Where such an exercise is
not done it may be presumed that the witness
was competent to testify though, from the
contents of his or her deposition, an inference
may be drawn whether the testimony is an
outcome of tutoring.

A child witness is a competent witness but where the
trial court fails to conduct the exercise to ascertain his
duty of speaking the truth, then the appellate court can
draw the inference of tutoring from the testimony.( Para
12, 13, 17, 19, 26)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

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30 INDIAN LAW REPORTS ALLAHABAD SERIES
bringing the offender to book and for the system
to send right message to all in the society.
Undue sympathy for offender would be more
harm to justice system to undermine the public
confidence in the efficacy of law.

Conclusion

20. In the light of analysis of the case as
mentioned above and considering the recovery of
huge quantity of Ganja as mentioned above,
coupled with the fact that applicant was
apprehended at the spot and was having
conscious and constructive possession over the
recovered Ganja, I do not find any reasonable
ground in terms of Section 37 of the N.D.P.S. Act
to hold that applicant is not guilty of an offence
and he is not likely to commit any offence while
on bail.

It is made clear that this finding is for a
limited purpose and is confined to the question of
releasing the accused applicant on bail only. The
trial court shall be absolutely free to arrive at its
independent conclusions on the basis of evidence
led unaffected by anything said in this order.

Result

21. In view of the facts and circumstances
of the case and on account of the reasons
mentioned above, I do not find any good ground
for enlarging the applicant on bail at this stage.
The bail application of the applicant is
accordingly rejected.
----------
(2021)11ILR A30
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Cases No. 5 of 2021

Bal Govind @ Govinda ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Vinayak Mithal

Counsel for the Opposite Party:
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- There must
be a chain of circumstances 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. The circumstances
concerned 'must or should' and not 'may be'
established. The prosecution evidence may, at
best, give rise to a suspicion against the
appellant but fails to prove the circumstances
of a conclusive nature and tendency from
which we may, with certitude, hold that the
accused has committed the crime.

Settled law that in a case of circumstantial evidence
the prosecution has to link the chain of circumstances
that leaves no other conclusion but the guilt of the
accused.

Evidence Law - Indian Evidence Act, 1872-
Section 7 - Section 114- Circumstantial
Evidence - "Last Seen" alive in the company of
the accused- Ordinarily, the circumstance of
the deceased being last seen alive with the
accused may alone not be sufficient to record
conviction-But, it is an important link in the
chain of circumstances that would point
towards the guilt of the accused with some
certainty. The last seen theory comes into play
where the time-gap between the point of time
when the accused and the deceased were seen
last alive and when the deceased is found dead
is so small that possibility of any person other
than the accused being the author of the crime
becomes impossible. It would be difficult in
some cases to positively establish that the
deceased was last seen with the accused when
11 All. Bal Govind @ Govinda Vs. State of U.P.
31
there is long gap and possibility of other
persons coming in between exists.

The theory of the deceased having been last seen in the
company of the accused comes into play only where the
duration of the accused last seen in the company of the
deceased and the recovery of the dead body is so
minimal that the possibility of any other person
interfering is ruled out.

Evidence Law - Indian Evidence Act, 1872-
Section 118- Competency of Witnesses- Child
Witness- A child witness is as much a competent
witness as any other witness but, as a rule of
prudence, before recording the testimony of a
child, the court must undertake an exercise to
find out whether the child understands the duty
of speaking the truth. Where such an exercise is
not done it may be presumed that the witness
was competent to testify though, from the
contents of his or her deposition, an inference
may be drawn whether the testimony is an
outcome of tutoring.

A child witness is a competent witness but where the
trial court fails to conduct the exercise to ascertain his
duty of speaking the truth, then the appellate court can
draw the inference of tutoring from the testimony.( Para
12, 13, 17, 19, 26)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

1. Hanumat Govind Nargundkar & anr. Vs St. of M.P,
AIR 1952 SC 343

2. Sharad Birdhichand Sarda Vs St. of Maha., (1984)
4 SCC 116)

3. Vijay Shankar Vs St. of Har., (2015) 12 SCC 644

4. Nizam Vs St. of Raj., (2016) 1 SCC 550

5. Navneetakrishnan Vs State, (2018) 16 SCC 161

6. Kanhaiya Lal Vs St. of Raj., (2014) 4 SCC 715

7. St. of U.P. Vs Satish, (2005) 3 SCC 114)

8. Ramreddy Rajesh Khanna Reddy & anr. Vs St. of
A.P., (2006) 10 SCC 172
9. Rameshwar Vs St. of Raj.: AIR 1952 SC 54

10. Panchhi & ors. Vs St. of U.P. (1998) 7 SCC 177

11. Dattu Ramrao Sakhare & ors. Vs St. of Maha.
(1997) 5 SCC 341

12. Suryanarayana Vs St. of Kar. (2001) 9 SCC 129

13. Suresh Vs St. of U.P. (1981) 2 SCC 569

14. St. of U.P. Vs Ramesh & anr. (2011) 4 SCC 786

15. Shivaji Sahabrao Bobade & anr. Vs St. of Maha.,
(1973) 2 SCC 793

16. Devi Lal Vs St. of Raj., (2019) 19 SCC 447

(Delivered by Hon'ble Manoj Misra, J.)

1. The appellant - Bal Govind alias
Govinda was tried in Special Sessions Trial No.
198 of 2020 and by the order of Special Judge,
Pocso Act /Additional District & Sessions
Judge, Jaunpur dated 06.03.2021 has been
convicted under Sections 302, 376 AB, 201, 363
of the Indian Penal Code (for short IPC) and
under Section 5/6 of Protection of Children from
Sexual Offences Act, 2012 (for short POCSO
Act) and, by order dated 08.03.2021, awarded
punishment as follows:

(i)
Death
sentence
for
offence
punishable under Section 302 I.P.C;

(ii)
Death
sentence
for
offence
punishable under Section 5/6 Pocso Act (as
amended by Act No.25 of 2019);

(iii) Seven years R.I. and Rs. 5,000/-
fine for offence punishable under Section 363
I.P.C. with a default sentence of one year;

(iv) Seven years R.I. and Rs. 5,000/-
fine for offence punishable under Section 201
I.P.C. with a default sentence of one year.

All sentences to run concurrently.

2. As death sentence was awarded, a
reference (i.e. Reference No.4 of 2021) was
32 INDIAN LAW REPORTS ALLAHABAD SERIES
made to the High Court under Section 366
Cr.P.C. for confirmation of death penalty. The
appellant, who is in jail, expressing his inability
to engage a counsel of his choice, requested for
submission of his appeal against the order of
conviction and sentence. As a result, the
Superintendent District Jail, Jaunpur wrote a
letter to the Secretary Legal Services Authority,
Jaunpur to present a Jail appeal on behalf of the
appellant. In furtherance whereof, the Secretary,
Legal
Services
Committee,
High
Court
Allahabad, by letter dated March 20, 2021, after
examining the claim of the appellant that he was
not in a position to engage a counsel to submit
his appeal, appointed Sri Vinayak Mithal
Advocate from the panel as a counsel to
represent the appellant and submit appeal and
submissions on behalf of the appellant before the
High Court. Whereafter, this appeal against the
aforesaid judgment and order of conviction and
sentence was reported and registered as Capital
Cases No.5 of 2021, and admitted, on
05.07.2021, for hearing.

INTRODUCTORY FACTS

3. (i) The prosecution case was instituted
on a thumb marked written application i.e. Exb.
Kha-1, dated 08.08.2020, submitted by Kolai @
Bakey Lal i.e. the father of the deceased, which
was registered as first information report (for
short FIR) (Exb. Ka-3) on 08.08.2020, at 10:30
hrs,
at
Police
Station
(for
short
P.S.)
Madhiyahun, District Jaunpur; the Chik FIR
reflects the name of the place of occurrence as
village Kumbh about 8 km away from the police
station. In the FIR, it is alleged: (i) that
informant's
daughter
Reshmi
Saroj
(the
deceased), aged 11-12 years, was enticed away
by Musahar Balgovind @ Govinda, a resident of
district Chandauli, who stays in his Sasural (inlaws place) at village Kumbh, and Nandu
Musahar, a resident of village Kumbh, district
Jaunpur, on 06.08.2020 at about 8.00 p.m; (ii)
that the informant and his family members were
searching for Reshmi but she could not be
found; and (iii) that on 08.08.2020, upon
information that body of a girl has been found in
a Maize field of Munni Lal son of Niranjan, the
informant went to the spot, with fellow villagers,
and found the body of his daughter (Reshmi).
The FIR was registered for offences punishable
under Sections 363, 302 and 201 I.P.C. against
the appellant and Nandu Musahar. The inquest
proceeding as per the record commenced on
08.08.2020 at about 16.30 hrs and completed by
19.00 hrs. Inquest report (Exb. Ka-1) was
prepared by Ramdavar Yadav (PW-7). Inquest
witnesses were Kolai Saroj (informant); Sonu
Saroj; Sushil Saroj (PW-3); Pradeep Kumar
(PW-4); and Ramakant Saroj. In the inquest
report it was observed that the body of the
deceased had a blue colour Kurti and a torn dirty
white colour undergarment. The body and the
clothes were sealed and sent for post-mortem /
forensic examination. Sample of bloodstained
earth and plain earth from where the body was
recovered was taken and a memo was prepared
on 08.08.2020 by Prabhari Nirikshak Trivenilal
Sen (PW-11). On 09.08.2020, at about 3:35 pm,
autopsy was conducted by Doctor Ashok Kumar
Baudhist (PW-9) and an autopsy report (Exb.
Ka-5) was prepared.

(ii) According to the autopsy report,
following anti-mortem injuries were noticed:
Contusion over mouth, nose, cheek and chin. In
addition to above, whole body was found
swollen with skin peeling off; foul smell present;
putrefaction started; and maggots coming out.
Whole vagina, labia majora, minora including
clitoris were found swollen and hymen was
found old healed ruptured. Two vaginal smear
slides and swab were prepared and handed over
to the constable. The estimated time of death
was three days before. Mouth was found half
open; larynx, vocal chords and hyoid bone was
found intact. Oesophagus, trachea, bronchial
tree, pleura cavities, etc were found congested
and it was noticed that the skin of the abdomen
was peeling off. Stomach contents had semi
11 All. Bal Govind @ Govinda Vs. State of U.P.
33
digested food; small intestine had gases; and
large intestine had gases with faecal matter.
According to the Doctor, the cause of death was
due to asphyxia as a result of anti-mortem
smothering and throttling.

(iii) The appellant was arrested on
09.08.2020 from village Bisauli in district
Chandauli. On his confession to the police that
he had been wearing the same dress which he
had worn at the time of the incident, the lower
half of his dress was taken and sealed for
forensic examination.

(iv) An undated report (Paper No. 25
Ka-2) of Forensic Laboratory, U.P., Ramnagar,
Varanasi was obtained in respect of: (a)
bloodstained earth and plain earth lifted from the
spot where the body of the deceased was found;
(b) lower half garment of the accused; (c) slide
and swab; and (d) dress pieces of the victim. The
chemical examination of the bloodstained earth,
slide and the dress pieces of the deceased
disclosed presence of blood. There was human
blood found on the slide and the clothes of the
deceased whereas the blood found in the mud
had disintegrated therefore, its nature could not
be determined. The lower half garment of the
accused did not show presence of blood and all
the samples examined did not show presence of
spermatozoa or semen.

4. The investigation was conducted by
Trivenilal Sen (PW-11) but charge-sheet (Exb.
Ka-6) was submitted by Ghanshyam Shukla
(PW-10). The appellant alone was chargesheeted whereas the other accused Nandu
Mushar was exonerated.

5. The Special Judge, Pocso Act /First
Additional Sessions Judge, Jaunpur framed
charge of offences punishable under Sections
363, 302, 201, 376 A B I.P.C. and Section 5/6
Pocso Act against the appellant. The appellant
denied the charges and claimed for trial.

PROSECUTION EVIDENCE

6. On commencement of the trial, the
prosecution examined the following witnesses:-

(i) PW-1- Pooja i.e younger sister of
the deceased and daughter of the informant -
Kolai.
Her
deposition
was
recorded
on
12.01.2021. Her age in the statement is recorded
as about 6 years old. She stated on oath that she
does not remember the date of the incident; that
on the date of the incident she and her elder
sister (Reshmi) were on way to the Bazaar when
Govinda (the appellant) bought her a toffee and
sent her back and he went away with her elder
sister; that she knows Govinda, who does brick
baking work; that her sister went with Govinda
and never returned; that her mother searched for
her sister in the night but her sister could not be
found; that in the morning, villagers found her
sister's body in a maize field, then her father and
mother got information; that her father thereafter
went to the police station to inform the police
about death of her elder sister; that a number of
policemen had come and had taken the body of
her sister; that the police had asked her about her
elder sister going with Govinda; and that
Govinda killed her sister.

In her cross-examination, she stated
that she is not literate and she does not know her
age.

No further question was put to her.

It be noted that this witness does not
disclose the time when she allegedly went
with her sister (the deceased) and the accused
(the appellant) and was offered a toffee.

(ii) PW-2- Chandrabali. He stated that
Kolai Saroj (i.e. deceased's father) was his
pattidar. He narrated the prosecution story that
the appellant took the deceased at about 7 pm for
toffee; that at that time her younger sister was
with her; that the appellant sent back her
younger sister after getting her toffee, etc. He
stated that the appellant is a resident of district
Chandauli; that Nandu Musahar is his Saala
(wife's brother); that the appellant is of bad
character; and that in connection with his work
34 INDIAN LAW REPORTS ALLAHABAD SERIES
of brick baking appellant resides with his wife's
brother (Nandu Musahar).

In his cross-examination held on
12.1.2021, he stated that the deceased (i.e. his
niece) and her family resided separate; that in
connection with his work as a welder, on a daily
basis, he goes to Jaunpur in the morning, where
he works there from 10 am, and returns back
home by 6 pm. His work place is about 18 km
away.

In his cross-examination held on
19.1.2021, he stated that he neither met Govind
@ Govinda (the accused) nor Kolai (deceased's
father) on 6th; that on 8th he came to know
about the death of Kolai's daughter while he was
going to Jaunpur, between 9 and 9.30 am; that
on getting the information he went to the spot,
where already 100-150 people were there and
the police had arrived and, by that time, it must
have been 10 am; that the police had taken the
body in a vehicle; that the villagers had staged a
protest demanding the body back but the body
was handed over on the next day from the
mortuary; that at the time the villagers were
making protest, none seemed to be informed as
to how the deceased died. He further added that
Govinda (the appellant) is addicted to liquor but
denied the suggestion that because he used to
take liquor, Govinda has been named. He
admitted that he does not know as to how
Kolai's daughter died.

(iii) PW-3- Sushil Kumar. In his
statement-in
chief,
he
stated
that
on
06.08.2020, his fellow villager's (i.e. Kolai's)
daughter-Reshmi, aged 11 years, was enticed
away by Balgovind who used to stay at his
Sasural
(Nandu
Mushar's
house);
that
Balgovind had lured Reshmi under the pretext
of getting her a toffee and thereafter he took
her to Munni Lal's maize field where he
committed rape on her and strangulated her
and also poured acid on her so that she could
not be recognized; that PW-3, as well family
members of Reshmi, searched for her but she
could not be found; that on 08.08.2020, in the
morning, her body was discovered in the field
of Munni Lal; that information of recovery of
the body was given by PW-3 to the police;
that the police arrived at the spot and, on the
same day night, the police arrested the
appellant from Chandauli where the appellant
has
his
house;
that
information
about
appellant's arrest was given by the police; that
PW-3 has witnessed the inquest proceeding.

In his cross-examination, he stated
that though he had received information that
Kolai's daughter had gone missing but, as a
village Pradhan, he had not given any
information to the police as he suspected that
she might have gone somewhere and would
return. But when she did not return, on the
next day, by dialling 112, information was
given. Later, he changed his version and stated
that on 06.08.2020 itself he gave information
to the police regarding involvement of
Balgovind @ Govinda by dialling 112. He
stated that on 06.08.2020, he saw Balgovind
taking away Reshmi.

In his cross-examination, held on
08.02.2021, he stated that on 08.08.2020 he
received information about the incident at
about 6 am. On receipt of information he
immediately went to the spot and within next
10 minutes, the police also arrived. He stated
that the police conducted inquest proceeding
and took away the body. His signatures are
there on the inquest report.

It be noted that this witness does
not disclose the time when he saw the
appellant (accused) with the deceased or
her sister.

(iv) PW-4 - Pradeep Kumar. He
stated that he, with others, had been searching
for the girl. In the morning, on information, he
went to the spot to find her dead. He witnessed
the inquest proceeding.

In his cross-examination, he admitted
that he is not a witness of the incident. First, he
stated that the inquest was carried out at the
place where the body was recovered but,
11 All. Bal Govind @ Govinda Vs. State of U.P.
35
immediately, thereafter he stated that it was held
at the police station.

(v) PW-5 - Head Constable Dev
Kumar Yadav. He stated that he was posted at
P.S. Madhiyahun on 08.08.2020; that, in the
morning, he received information that at village
Kumbh, missing girl's body has been found;
that, upon receipt of the information, he took the
Panchayatnama register, other papers, materials
and left for the spot with constable Satyam
Singh, lady constable Mamta and Sub Inspector
Ramdawar Yadav; that the Sub Inspector
completed inquest proceeding and sealed the
body in a kit-bag which was handed over to him
and constable Satyam Singh for being taken to
the mortuary; that on 09.08.2020, the body was
handed over to the doctor at the mortuary and till
the time the body was handed over to the doctor,
it was kept secured and no one was able to even
touch it.

In his cross-examination, he stated that
he had reached the spot at 9.30 am and that he
does not remember the exact time by which they
had brought the body to the police station.

(vi) PW-6 - Dilip Kumar @ Ajay: He
stated that he has a Kirana Shop; on 06.08.2020,
at about 7 pm, when he was about to close his
shop, Govinda @ Balgovind (appellant) came to
his shop with one girl and purchased a packet of
biscuit worth Rs. 5, at that time, he could not
recognize the girl but, later, when the body was
recovered he came to know that that girl was
Kolai's daughter (Reshmi) who had come to the
shop with the appellant. He stated that ordinarily
his shop remains open till 8 pm but due to
lockdown directions, his shop had to be shut by
7 pm.

In his cross-examination, he improved
his statement by stating that both daughters of
Kolai had come to his shop at that time and that
Govinda (appellant) had purchased salted
snacks, toffee and biscuit also, and had sent back
the younger daughter, after giving her toffee,
and had taken Reshmi with him. He stated that
he cannot tell as to where Govinda had taken
Reshmi. Only the third day, he came to know
that the girl who was with him has been
murdered. He stated that he could not decipher
the age of the girl who was there as it was
evening time but Kolai's daughter, who was
murdered, was there with Govinda at that time.
He denied the suggestion that he is telling a lie.

(vii) PW-7 - Ramdawar Yadav. He
stated that information of the murder, upon
discovery of the body, was received from Kolai
i.e. father of the deceased-Reshmi, at 10.30 am,
on 08.08.2020. Whereafter, on registration of the
FIR, he along with head constable Dev Kumar,
constable Satyam Singh reached the spot where
a number of persons had gathered. He proved
the inquest report.

In his cross-examination, he stated that
inquest proceeding started at 4.30 pm and was
completed by 7 pm.

(viii) PW-8 - Mahendra Tiwari. He
stated that he was posted at P.S. Madiyahun as a
constable on 08.08.2020; on that day, at about
10.30 am, Kolai @ Bankelal son of Banke Saroj
had brought a written report and, thereafter, he
had put his thumb impression on the report, by
using the Ink pad taken from him, and gave the
same to the Station House Officer (SHO). On
the direction of the SHO, a chik FIR was
prepared and entry was made on the computer.
A free copy was delivered. He proved the chik
FIR, which was marked as Exibit Ka-3, and the
GD entry of the report, which was marked as
Exb. Ka-4.

In his cross-examination, he stated that
there were 4-5 persons with Kolai Saroj. The
report was not written in front of him. The FIR
was submitted to the SHO and on his direction,
the report was entered. He denied the suggestion
that the time mentioned in the FIR is not the
correct time of lodging the report. He also
denied the suggestion that information about the
incident was received at the police station from
some other person.

On court's order dated 17.02.2021,
PW-8 was again produced on 20.02.2021 to
36 INDIAN LAW REPORTS ALLAHABAD SERIES
prove the thumb impression of Kolai on the
written report, which was marked Exb. Kha-1.

(ix) PW-9 - Dr. Ashok Kumar
Baudhist. He disclosed that he had conducted
the autopsy on 09.08.2020. He proved the
contents of the autopsy report.

On 03.03.2021, PW-9 was again
examined on the order of the Court dated
01.03.2021.
He
stated
that
on
internal
examination of the vagina, labia majora/ minora,
clitoris of the deceased, upon finding swelling,
old healed ruptured hymen, two vaginal slide
smear were taken to confirm whether she was
sexually assaulted. He stated that they were sent
to forensic laboratory Lucknow but he has not
seen the forensic report.

(x) PW-10 - Ghanshyam Shukla. He
stated that he took over charge of P.S.
Madiyahun on 16.08.2020 and took over
investigation of the case. After collecting the
materials and examining the papers in respect of
the investigation already carried out, he
submitted charge-sheet under his signature
against Balgovind @ Govinda S/o Ram Lal
Banwasi, R/o Village Pura, P.S. Sakaldiha,
district Chandauli, which was exhibited as Exb
Ka-6. He proved the dispatch of the plain and
blood stained earth, undergarment of the
accused, clothes of the victim and slides
prepared at the time of the autopsy for forensic
examination.

In his cross-examination, he stated that
it was his predecessor who had sent the material
for forensic examination and by the time he
submitted charge-sheet, the forensic examination
report had not been received. He stated that he
did not send any reminder letter to the forensic
laboratory.

(xi) PW-11 -Triveni Lal Sen. He
stated that upon registration of the case, he
carried out investigation; that when he had
arrived at the spot, a large number of people had
already gathered; that Sub-Inspector Ram Dawar
Yadav and S.I. Deepti Singh were ordered to
proceed with the inquest; after completion of the
inquest proceeding, body was sent for postmortem; that, on the same day, he recorded the
statement of the scribe of the FIR, namely,
constable Mahendra Tiwari, and Kolai (the
informant); that, on the same day, he also
prepared site plans (Exb. Ka-7 and Exb. Ka-8)
on the directions of the informant and lifted
samples of bloodstained and plain earth from the
spot where the deceased's body was found; that,
thereafter, he conducted search/raid/operation to
apprehend the accused and, on 09.08.2020, he
arrested the accused from Bisauli Mushar Basti;
that, on 10.08.2020, he recorded statement of
witnesses Pooja Saroj (PW1) and Sonu Saroj;
that on 12.08.2020 he recorded statement of Dr.
Ashok Kumar Baudhist; clarificatory statement
of Kolai; and statements of Sushil Kumar,
Ramakant, Pradeep Kumar, etc; and on
14.08.2020, he prepared the memo of dispatch
of the materials for forensic examination.

In his cross-examination, he stated that
in the written report there were two accused, one
Bal Govind @ Govinda (the appellant) and the
other was Nandu (Bal Govind wife's brother) but
as no sufficient evidence was found against
Nandu, his name was removed from the accused
column. He denied the suggestion that to save
Nandu, the appellant has been framed. He also
denied
the
suggestion
that
the
accused
Balgovind @ Govinda had left village Kumbh
since before the date of the incident to go to his
native village and has been falsely implicated.

In addition to above, the court
examined head constable Shailendra Kumar
Yadav, as a court witness (CW-1), who stated
that the informant Kolai @ Bankelal died on
21.09.2020 regarding which, a death certificate
was provided by the Gram Pradhan of the Gram
Panchayat concerned.

7. After closure of the prosecution
evidence, incriminating material emanating from
the prosecution evidence was put to the accusedappellant for recording his statement under
Section 313 Cr.P.C.The accused-appellant in his
11 All. Bal Govind @ Govinda Vs. State of U.P.
37
statement under Section 313 Cr.P.C. denied the
incriminating material against him; claimed that
he has been framed to save the real culprit; and
that the witnesses have falsely deposed against
him due to enmity.

SUMMARY
OF
TRIAL
COURT FINDINGS

8. The trial court found the following
circumstances
against
the
accused-appellant
proved: (i) that the deceased was aged below 12
years; (ii) that on 06.08.2020, the accused took the
deceased under the pretext of getting her a toffee,
which is established by the testimony of PW1; (iii)
that PW1 also accompanied them up to a distance
but was sent back by the accused after getting her a
toffee; (iv) that PW-6 is an independent witness
from whose shop the accused purchased toffee, etc
for the deceased and PW1; (v) that the deceased
was last seen alive with the accused when he
purchased toffee etc for her and her sister (PW1)
and thereafter the deceased did not return; (vi) that
in the morning of 08.08.2020 deceased's body was
recovered from a maize field about one and onehalf km away; (vii) that the post mortem
examination disclosed ruptured hymen and
smothering which indicated that she was ravished
and then murdered; (viii) that the accused resides
at his Sasural at village Kumbh, namely, the
village where the incident took place, but ran away
to district Chandauli from where he was arrested
on 09.08.2020; (ix) that all these circumstances, in
absence of explanation, complete the chain to rule
out all other hypothesis than the conclusion that
the accused took the deceased and her sister (P.W.-
1) by offering them toffee, sent back her sister
(PW1), ravished the deceased and then killed her.
Upon finding that the accused was aged 25 years
and the deceased was aged below 12 years,
concluded that the case warranted a death penalty.

9. We have heard Sri Vinayak Mithal for
the appellant; Sri Amit Sinha, learned A.G.A.,
for the State; and have perused the record.

SUBMISSIONS

10. Sri Vinayak Mithal, on behalf of the
appellant, submitted as follows:

(a) The contents of the FIR cannot be
read in evidence because its author was not
examined. Thus, the testimony of the witnesses
examined during the course of trial can draw no
support from the FIR.

(b) That from the testimony of PW-2,
PW-3 and also PW-7, it is clear that the police
had arrived at the spot, when the body was
found, much before 10 am in the morning, that is
before the lodging of the FIR, and a large
number of people had gathered, which is
suggestive of the fact that prosecution case was
developed to ward off pressure on the police to
solve the case. Therefore, the prosecution story
is a cooked up story just to solve out the case.

(c) That the forensic examination of
the lower garment of the accused did not
disclose presence of blood or spermatozoa and
there is no DNA matching report linking the
appellant with any incriminating material
recovered from the spot or from the body or
clothes of the victim.

(d) That the evidence of the appellant
being last seen alive with the deceased provided
by PW-1; PW-3; and PW-6 does not at all
inspire confidence for the following reasons:-

(i) PW-1 is a child witness, aged 6
years, and before recording her statement the
Court did not adopt precautionary tests to
ascertain whether she understands the gravity of
her statement and was a competent witness.
Otherwise also, PW-1 did not remember the date
of the incident. She also did not disclose the
time when she was in the company of the
accused and her elder sister (the deceased).
Further, her statement is not in sync with the
prosecution case as, according to the prosecution
case, body of the deceased was found two days
after she went missing whereas, according to
her, next day, in the morning, body was found.
38 INDIAN LAW REPORTS ALLAHABAD SERIES
She also appears tutored because even though
she is not a witness of any act of assault on her
sister by the accused but she states that her sister
was murdered by the accused. Therefore, in
absence of corroboratory evidence of her mother
or father, that could have supplied meaning to
her disjointed thoughts in reference to the facts
in issue, not much reliance can be placed on her
testimony. Further, she is a vulnerable illiterate
child who does not even know her age as could
be gathered from her statement in crossexamination and, above all, whether she had
accompanied the deceased up to the toffee shop,
on that fateful day, is neither disclosed in the
FIR, allegedly lodged by her father, nor in the
site plan prepared at the instance of her father by
the police.

(ii) PW-3, though in his crossexamination states that he saw appellant taking
away the deceased on 06.08.2020 but does not
disclose the time when he saw them together.
Therefore, his testimony is inconsequential.
Further, he stated that he gave information to the
police by dialling 112 but the same is not
confirmed by the police. Moreover, his
testimony is not confidence inspiring inasmuch
as at one stage he states that he did not consider
it necessary to report about the girl having gone
missing as he thought that she might return;
whereas, at another stage of his statement he
stated that he had reported to the police by
dialling 112.

(iii) In so far as the testimony of PW6-Dilip Kumar is concerned, his testimony does
not inspire confidence inasmuch as in his
statement-in-chief, he only says that Govinda
(i.e accused-appellant) had come with a girl
whom he could not recognise whereas, during
cross-examination,
he
improves
upon his
statement to state that Govinda had come with
two girls, one was sent home after getting her a
toffee, etc. and the other girl, he took away. This
improvement in his testimony suggests that there
was a deliberate attempt on his part to show the
presence of the other girl also, as he had failed to
disclose her presence in his statement-in-chief.
Other than that, it appears from his statement
that he could not recognise the girl though, later,
after the body was recovered, he thought that it
was that girl. His testimony thus appears to be a
mixture of guess work, knowledge and thought
therefore, it is not of much value.

(e)
That
the
entire
prosecution
evidence is silent as to whether any effort was
made to find out the victim at the house of
Nandu Musahar with whom the appellant
allegedly resided. Moreover, the prosecution has
suppressed a vital witness, namely, the mother
of the deceased, who could have thrown light on
the issue whether PW-1, or any body else, had
given information at home that the accusedappellant had taken the deceased.

(f) That the delay in lodging even a
missing report, and lodging of FIR only after
arrival of police on spot, on discovery of the
body, proves fatal to the prosecution case.
Because, if there had been information as to with
whom the deceased had left on 06.08.2020, on
her having not returned home, missing report
would have been lodged earlier and the
informant would not have waited till the
discovery of her daughter's body. Thus, nobody
saw the accused-appellant taking the deceased.

(g) Even assuming that the deceased
had been with the accused during any time of
that day, in absence of evidence that the place
from where the body was recovered was in close
proximity to the place where she was last seen
alive with the accused, nothing much turns on
that evidence, particularly, when the body was
recovered two days later. Therefore, intervening
circumstances, such as involvement of some
other person, cannot be ruled out. Under the
circumstances, the chain of circumstances is not
complete as to rule out all other hypothesis than
the guilty of the appellant.

(h) The view of the court below that
the appellant had absconded is incorrect because
he was arrested from his native village on
09.08.2020, next day of recovery of the body
11 All. Bal Govind @ Govinda Vs. State of U.P.
39
and lodging of the FIR; and there is nothing on
record that there was any declaration under
section 82 CrPC.

(i) The forensic reports do not confirm
rape or the involvement of the appellant to link
the appellant with the crime.

(j) In the alternative, it was submitted
that even assuming that the appellant was guilty
of the offence, it is not a case, rarest of rare in
nature, warranting death penalty.

11. Per contra, Sri Amit Sinha, learned
A.G.A., submitted that PW-1 though may be a
child witness but no question has been put to her
to discredit her testimony. A child witness is as
much a competent witness as any other witness
unless the Court considers that the child is
unable to understand the nature of his or her
deposition. Once, the court proceeds to record
the testimony of a child witness it could be
presumed that the court considers the child as a
competent witness and therefore the testimony
of the child would have to be tested on its own
merit and it cannot be discarded merely because
it comes from a child. He submits that PW-1 has
not been cross-examined on relevant particulars,
namely, that she had accompanied the accused
and her elder sister (the deceased) up to the
toffee shop whereafter she was not seen alive;
and that the accused sent her back after giving
her a toffee. As this particular part of her
statement has not been subjected to crossexamination, it would be deemed to be correct
and therefore her subsequent statement that in
the morning her sister's body was found would
not render her statement unreliable because she
doesn't specifically say that body was found on
the next day morning. Moreover, her testimony
finds corroboration from the testimony of PW-6.
Further, the autopsy report indicates that the
death probably occurred three days before,
meaning thereby, that it could have taken place
in the night of 06.06.2008 when the deceased
was last seen alive with the accused and,
therefore, the burden was on the accused to
explain whether he parted company with the
deceased. As no explanation was offered by the
accused, his conviction is justified. He further
submits that the statement of some of the
prosecution witnesses that the police had arrived
early morning is not sufficient to discredit the
FIR because the inquest report carries the details
of the case number registered pursuant to the
FIR including the name of the person who had
given the information to the police. He submits
that even assuming that the vaginal smear did
not disclose presence of spermatozoa that, by
itself, would not be sufficient to discard the
charge of rape as the hymen was found ruptured
and there was swelling on the private parts. He,
therefore, submits that the conviction of the
appellant is justified and since it is a case of rape
and murder of a minor by luring her with a
toffee, the death penalty awarded should be
confirmed.

ANALYSIS

12. Before we proceed to weigh the rival
submissions and analyse the evidence on record,
we may remind ourselves that we are dealing
with a case based on circumstantial evidence. It
is well settled that to sustain a conviction, 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 circumstances 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 (vide Hanumat Govind Nargundkar
& Anr. V. State of Madhya Pradesh, AIR
40 INDIAN LAW REPORTS ALLAHABAD SERIES
1952 SC 343; Sharad Birdhichand Sarda V.
State of Maharashtra, (1984) 4 SCC 116). In
Vijay Shankar V. State of Haryana, (2015) 12
SCC 644, the Supreme Court following its
earlier decisions in Sharad Birdhichand Sarda
(supra) and Bablu V. State of Rajasthan,
(2006) 13 SCC 116, in respect of a case based
on circumstantial evidence, held that "the
normal principle is that in a case based on
circumstantial evidence the circumstances from
which an inference of guilt is sought to be drawn
must be cogently and firmly established; that
these circumstances should be of a definite
tendency unerringly pointing towards the guilt
of the accused; that 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 they should be
incapable of explanation of hypothesis other
than that of the guilt of the accused and
inconsistent with their innocence".

13. Ordinarily, the circumstance of the
deceased being last seen alive with the accused
may alone not be sufficient to record conviction
(vide Nizam V. State of Rajasthan, (2016) 1
SCC 550; Navneetakrishnan V. State, (2018)
16 SCC 161; and Kanhaiya Lal v. State of
Rajasthan, (2014) 4 SCC 715). But, it is an
important link in the chain of circumstances that
would point towards the guilt of the accused
with some certainty. The last seen theory comes
into play where the time-gap between the point
of time when the accused and the deceased were
seen last alive and when the deceased is found
dead is so small that possibility of any person
other than the accused being the author of the
crime becomes impossible.