# Harendra v. State of U.P. Opp. Party

- **Citation:** (2022) 7 ILRA 120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-08
- **Case number:** Capital Case No. 12 of 2021
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harendra-v-state-of-u-p-opp-party-48745
- **Pages:** 26

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302, 201, 376-AB -Capital
case - reference for confirmation of death
penalty - Protection of Children from
Sexual Offences Act, 2012 - Section
2(I)(d), 3 , 5(m)/6 , 42 - for resting a
conviction
in
case
of
circumstantial
evidence - circumstances from which the
conclusion of guilt is to be drawn, should
be fully established - all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused -
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 - must be a
chain of evidence so complete as not to
leave
any
reasonable
ground
for
a
conclusion consistent with the innocence
of the accused - must be such as to show
that within all human probabilities, the act
must
have
been
done
by
the
accused.(Para -36 )
7 All. Harendra Vs. State of U.P.
121
Minor girl (deceased) brutally murdered after
rape - dead body recovered from a pit situated
in the house of appellant - case rests on
circumstantial evidence - no eye witness
account of either rape or murder - offence
committed by appellant - heinous in nature -
manner in which committed shows depravity -
appellant is a young man - with no criminal
antecedents - possibility of his reformation and
rehabilitation.(Para -19, 80)

(B) Criminal Law - Question of sentence -
The Code of criminal procedure, 1973 -
death penalty is an exception and it can
only be awarded in the rarest of rare cases
- Aggravating circumstances - Mitigating
circumstances
-while
awarding
death
sentence,
the
mitigating
and
the
aggravating circumstances have to be
balanced - but in the balance sheet of
such circumstances, the fact that the case
rests on circumstantial evidence has no
role to play - trial court did not consider
mitigating circumstances in favour of appellant -
merely considered aggravating circumstances -
while awarding death penalty .(Para - 75,78)

HELD:- Only conclusion hypothesis that can be
drawn from the proven circumstance is that it
was the appellant who, after committing rape of
the deceased, committed her murder and hid
her dead body by burying it in a pit.
Circumstances in which deceased's body found
are so compelling that they conclusively point
towards the guilt of the appellant. Trial court
rightly convicted the appellant. Death sentence
awarded to appellant (young man with no
criminal antecedent) is commuted to life
imprisonment. Reference to confirm the death
penalty is answered in negative.(Para -
62,65,81 )

Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,965 of 86,745. This is a partial read: ask again with offset=39965 for what follows._

120 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1894. Both Sections are categorical to
the effect that on making an award under
section 11 of the Land Acquisition Act,
such proceedings can be taken into account
for staking a claim and not on the basis of
proceedings under reference ending in an
order
of
adjudication
or
further
adjudication
awarding
enhanced
compensation. In both Sections it is the
award under section 11 of the Act, 1894
that
is
the
basis
of
calculation.Consequently, the plea of the
learned counsel for the petitioners cannot
be accepted.

Learned
counsel
for
the
petitioners prays for time to study the
matter.

List in the next cause list."

6. We have not been able to find any
answer from Sri Khare to the aforesaid
question framed inasmuch as the words
used in Sub-Section (2 ) of Section 24 are
clearly to the effect that the same would
apply in Land Acquisition proceedings
where an award under Section 11 of
the1894 Act has been made. Thus for the
purpose of calculating the leeway period of
5 years and for applying the provisions of
lapse, the word "award" in Section 11
would be attracted and not the words
"reference
under
Section
18".
The
definition clause relied upon by Sri Khare
which defines "cost of acquisition" has no
relevance at all so far as the applicability of
provisions of Section 24 are concerned.
The
arguments
of
Sri
Khare
are
misconceived, therefore, untenable. The
argument that in the agreement arrived at in
the reference proceedings would relate
back to the date of award is equally
misconceived
inasmuch
as
no
such
contingency has been contemplated under
Section 24 of the Act.

7. The petition lacks merit and is
accordingly rejected.
----------
(2022)07ILR A120
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

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

Capital Case No. 12 of 2021
with
Reference No. 09 of 2021

Harendra ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
From Jail, Sri Arun K. Singh Deshwal

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302, 201, 376-AB -Capital
case - reference for confirmation of death
penalty - Protection of Children from
Sexual Offences Act, 2012 - Section
2(I)(d), 3 , 5(m)/6 , 42 - for resting a
conviction
in
case
of
circumstantial
evidence - circumstances from which the
conclusion of guilt is to be drawn, should
be fully established - all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused -
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 - must be a
chain of evidence so complete as not to
leave
any
reasonable
ground
for
a
conclusion consistent with the innocence
of the accused - must be such as to show
that within all human probabilities, the act
must
have
been
done
by
the
accused.(Para -36 )
7 All. Harendra Vs. State of U.P.
121
Minor girl (deceased) brutally murdered after
rape - dead body recovered from a pit situated
in the house of appellant - case rests on
circumstantial evidence - no eye witness
account of either rape or murder - offence
committed by appellant - heinous in nature -
manner in which committed shows depravity -
appellant is a young man - with no criminal
antecedents - possibility of his reformation and
rehabilitation.(Para -19, 80)

(B) Criminal Law - Question of sentence -
The Code of criminal procedure, 1973 -
death penalty is an exception and it can
only be awarded in the rarest of rare cases
- Aggravating circumstances - Mitigating
circumstances
-while
awarding
death
sentence,
the
mitigating
and
the
aggravating circumstances have to be
balanced - but in the balance sheet of
such circumstances, the fact that the case
rests on circumstantial evidence has no
role to play - trial court did not consider
mitigating circumstances in favour of appellant -
merely considered aggravating circumstances -
while awarding death penalty .(Para - 75,78)

HELD:- Only conclusion hypothesis that can be
drawn from the proven circumstance is that it
was the appellant who, after committing rape of
the deceased, committed her murder and hid
her dead body by burying it in a pit.
Circumstances in which deceased's body found
are so compelling that they conclusively point
towards the guilt of the appellant. Trial court
rightly convicted the appellant. Death sentence
awarded to appellant (young man with no
criminal antecedent) is commuted to life
imprisonment. Reference to confirm the death
penalty is answered in negative.(Para -
62,65,81 )

Appeal partly allowed. (E-7)

List of Cases cited:-

1. Sarad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116

2. Pappu Vs The St. of U.P. 2022 Live Law (SC)
144.

3. Lochan Shrivas Vs The St. of Chhattisgarh,
Manu/SC/1252./2021

4. Pandurang Chandrakant Mhatre & ors. Vs St.
of Mah. (2009) 10 SCC 773 P.

5. Rajgopal & ors. Vs The St. of T.N. (2019) 5
SCC

6. Sandeep Kumar Vs The St. (Govt. of NCT of
Delhi) & ors. i.e. Writ Petition (Criminal)
No.2189 of 2018

7. D.K.Basu Vs U.O.I.(1997) 1 SCC 416

8. Rammi @ Rameshar Vs St. of M.P.(1999) 8
SCC 649

9. Sudam @ Rahul Kaniram Jadhav Vs St. of
Mah. , (2019) 9 SCC 388

10. Shatrughan Baban Meshram Vs St. of Mah. ,
(2021) SCC 596

11. Bachan Singh Vs St. of Punj. ,1980 (2) SCC
684

(Delivered by Sameer Jain, J.)

1. Harendra (the appellant) was
convicted under Sections 302, 201, 376-AB
IPC and Section 5(m)/6 of Protection of
Children from Sexual Offences Act, 2012
(for short POCSO Act) vide judgment and
order dated 14.7.2021 and 15.7.2021
passed by Special Judge ( POCSO Act),
Bulandshahar in Sessions Trial No. 625 of
2021 and has been awarded following
punishment:

1. Under Section 302 IPC, death
penalty with a fine of Rs. One lacs and in
default
additional
one
year
simple
imprisonment;

2. Under Section 201 IPC, seven
years R.I.with a fine of Rs.Twenty
Thousand, and in default four months
simple imprisonment; and
122 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Under Section 5(m)/6 of
POCSO Act read with Section 376 AB
IPC, death penalty.

All sentences to run concurrently.

2. As the trial court awarded death
penalty to the appellant (Harendra) under
Sections 302 IPC and Section 5(m)/6 of
POCSO Act read with Section 376 AB
IPC, it has sent a reference for confirmation
of death penalty, which has been registered
as Reference No.9 of 2021.

3. Against the aforesaid judgment and
order, the appellant has submitted his
appeal from Jail, which has been forwarded
by the Superintendent of Jail, Bulandshahar
vide letter dated 21.7.2021. This appeal has
been registered as Capital Cases No.12 of
2021. The appellant has prayed that the
judgment and order of conviction and
sentence recorded by the trial court be set
aside and that he be acquitted of all the
charges.

4. Considering the nature of the
crime, we are not disclosing the name of
the victim, members of her family as well
of the witnesses of that area (locality) and,
therefore, wherever required, they have
been described by their witness number.

5. To represent the appellant, who
could not engage a private counsel, Sri
Arun Kumar Singh Deshwal, Advocate has
been appointed as Amicus Curiae by the
High
Court,
Legal
Aid
Services
Committee.

INTRODUCTORY FACTS:

6. Prosecution case, in brief, is that on
28.2.2021 at about 18.46 hours (6.46 PM)
PW-1 lodged a First Information Report
against the appellant under Section 363 IPC
at Police Station Anoopshahar, District
Bulandshahar vide Case Crime No. 104 of
2021. As per the First Information Report,
on 25.2.2021, at about 4.00 PM, the
daughters of PW-1, namely, PW-4, aged
about 15 years, and the deceased, aged
about 12 years, went along with their
mother (PW-2) to fertilize their field. In the
meantime, the deceased went to the house
of Ram Niwas (father of appellant) to have
water. When she did not return, her mother
(PW-2) sent PW-4 to look for her but she
(PW-4) could not find the deceased in the
house of Ram Niwas though she noticed
the door of the house of Ram Niwas bolted
from inside. PW-2 thought that the
deceased must have gone back home. But
when PW-2 returned from the field after
about an hour, she did not find her daughter
i.e. the deceased at home. When PW-1
returned back, PW-2 narrated the entire
incident to him. Immediately whereafter,
PW-1 went to the house of Ram Niwas but
did not find his daughter (deceased) there.
By alleging that from that very day the son
of
Ram
Niwas,
namely,
Harendra
(appellant), is also missing, FIR was lodged
by PW-1 expressing suspicion against
Harendra (the appellant) that he has
vanished with his daughter (deceased).

7. On 2.3.2021, an application
(Ext.Ka-2) was submitted by PW-1 stating
therein that on 28.2.2021 he lodged a report
against Harendra (the appellant) son of
Ram Niwas under Section 363 IPC at
Police Station Anoopshahar on suspicion
whereas, on 2.3.2021 when PW-1 along
with Rajni Sadhwi, Bhola Chaudhari,
Vishnu
Chaudhari,
Rajveer,
Veerpal
entered the house of Ram Niwas in search
of the deceased, they found soil near the
latrine freshly laid. When he stepped on it,
his foot sank. Suspecting something amiss
the soil was dug/removed with "a spade".
7 All. Harendra Vs. State of U.P.
123
They then discovered dead body of the
deceased lying there. By stating as above
and by claiming that the body of the
deceased is lying at the spot, prayer was
made for appropriate action. On this
information, Police arrived at the spot,
recovered the dead body from the house of
Ram Niwas (father of the appellant) and
prepared inquest report (Ext. Ka-6) on
2.3.2021 at about 6.00 PM; whereafter, the
dead body was sent for autopsy.

8. On 2.3.2021, at about 11.14 PM,
the post mortem examination of the body of
deceased commenced which was concluded
on 3.3.2021 at about 00.20 hours i.e. 12.20
AM.

9. As per autopsy report (Ex.Ka-5)
following ante mortem injuries were found
on the body of deceased;

(I) A ligature mark of size 25 cm x 2
cm present around the neck with a gap of 3
cm at back of neck. Mark present at 5cm
below both ears horizontally placed above
thyroid cartilage. On exploration echymosis
present underneath and hyoid bone was
found fractured.

According to the autopsy surgeon
death was caused due to asphyxia as a
result of ante mortem strangulation. The
estimated time of death was six to seven
days before.

10. During autopsy, Gynaecological
Examination was also done. Autopsy report
(Ex.Ka-5) in this regard recites as follows:

"Gynaecological
Examination
of
Pelvical Region is done by me and two
vaginal smears/slides are prepared and 1
swab is taken from vulva and one smear is
taken from vagina. The pubic hair are cut
and preserved. 1 comb from pubic hair is
preserved and 1 comb from scalp hair is
preserved. On local examination of pelvical
region:- the margin of labia majora are
oedematous and irregular. There is tear in
labia majora at 3' 0 Clock position. Blood
clot is present. The vaginal introitus is
irregular in shape. The pelvical region is
covered by soil and after cleaning,
examination was done. The nails with
scraps are preserved."

11. On 2.3.2021, the Investigating
Officer prepared recovery memo (Ext.Ka11) of the soil from the pit i.e. the place
from where the body was recovered.
However, the appellant was shown arrested
from Chandigarh and on 3.3.2021, at about
3.30 PM, on the pointing out of the
appellant, after further digging the pit from
where
dead
body
of
deceased
was
recovered, a blue colour lower, red colour
T-shirt and one pair of slipper of red colour
(belonging to the deceased) and black
coloured red blue T-shirt as well as grey
colour lower (both belonging to the
appellant) were also recovered, which, the
appellant was allegedly wearing at the time
of incident. In respect of this recovery, a
recovery memo (Ext.Ka-12) was prepared.

12. After investigation, on 10.3.2021
charge sheet under Sections 363, 302, 201
and 376 AB, IPC and Section 5(m)/6 of
POCSO Act was submitted in the Court of
Special Judge (POCSO ACT)/Additional
Sessions Judge, Bulandshahr.

13. On 12.3.2021, the trial court
framed charges against the appellant under
Sections 363, 376 AB,302, 201 IPC and
Section 5(m)/6 of POCSO Act. Appellant
denied all the charges and claimed trial.
During trial, prosecution examined ten
witnesses, PW-1, PW-2, PW-4 and PW-5
124 INDIAN LAW REPORTS ALLAHABAD SERIES
are witnesses of fact whereas rest of the
prosecution witnesses are formal witnesses.
After
recording
the
statement
of
prosecution witnesses, trial court recorded
the statement of appellant under Section
313 Cr.P.C. and after analysing the
evidence on record, convicted the appellant
under Sections 302, 201 and 376 AB, IPC
and Section 5(m)/6 of POCSO Act.

14. We have heard Sri Arun Kumar
Singh Deshwal, learned Amicus Curiae
appointed by the High Court, Legal Aid
Services Committee, for the appellant and
Sri
Amit
Sinha
along
with
Sri
J.K.Upadhyaya, learned AGA, for the
State, and have perused the record of the
case.

SUBMISSION ON BEHALF OF
THE APPELLANT

15. Learned counsel for the appellant
submitted that present case is based on
circumstantial evidence and there is no eye
witness account of the incident. The trial
court wrongly convicted the appellant in
spite of the fact that the prosecution failed
to
prove
any
of
the
incriminating
circumstances against the appellant beyond
the pale of doubt. He submitted that there is
no admissible evidence on the basis of
which the appellant may be connected with
the present crime. Further, there is no
evidence of the appellant being last seen
alive with the deceased. Even the recovery
of the dead body allegedly from the house
of appellant is self-serving and in absentia
therefore, has no incriminating value.

16. Learned counsel for the appellant
further submitted that the alleged disclosure
in respect of recovery of clothes of the
deceased and of the appellant is not
admissible as the place from where these
clothes were allegedly recovered had been
discovered already on 2.3.2021 i.e. a day
before the said recovery. He submitted that
on the basis of suspicion alone, the
appellant has been falsely implicated. The
FSL report cannot be used against the
appellant in the present case as no blood
was found on the recovered clothes of the
appellant and the DNA too, could not be
matched.

17. Sri Deshwal, learned counsel for
the appellant also submitted that the trial
court wrongly interpreted the FSL Report
to assume that the lower carried gene
material of female origin therefore, the
appellant was involved when, in fact, there
was no basis to assume that the lower was
of the appellant. It was thus prayed that the
order of conviction be set aside.

18. Learned counsel for appellant
lastly submitted that as the present case
rests on circumstantial evidence, death
penalty is not to be awarded.

SUBMISSION ON BEHALF OF
THE STATE

19 Per contra, learned AGA submitted
that this is a case where a minor girl
(deceased) has been brutally murdered after
rape and as her dead body was recovered
from a pit situated in the house of the
appellant, this by itself is sufficient to
convict the appellant. Learned AGA
submitted that from the testimony of PW-2,
mother of deceased, and PW-4, the sister of
the deceased, it was proved that the
deceased went inside the house of the
appellant on 26.02.2021 to have water and
thereafter, she did not return. PW-1 (the
father of the deceased) in his statement
disclosed that on the next day i.e. on
26.2.2021, when he went to the house of
7 All. Harendra Vs. State of U.P.
125
the appellant, he met the appellant in his
house, who appeared nervous and had
scratch marks on his face and neck.
Thereafter, appellant absconded from the
house.

20. Learned AGA submitted that the
incriminating circumstances were duly
proved
and
constituted
a
chain
of
circumstances indicating that the appellant
is the person who committed rape and
murder of the deceased therefore, the trial
court has rightly convicted him. Hence, the
present appeal is liable to be dismissed.

21. On the question of sentence,
learned AGA submitted that as the
appellant committed rape of a minor girl,
aged below 12 years, and brutally murdered
her, the trial court rightly awarded him
death penalty.

22. Having noticed the rival contentions
and having perused the record, before
analysing the evidence in the context of the
rival contentions, it would be apposite to
notice the prosecution evidence, in brief.

PROSECUTION WITNESSES:

23. PW-1 is the informant. The
deceased was his daughter. According to
PW-1, deceased was aged about 12 years
old and use to stammer. On 25.2.2021, at
about 4.00 PM, PW-1, his wife (PW-2), his
daughter (deceased) and the other daughter
(PW-4), all had gone to the field to sprinkle
fertilizer. To have water, the deceased went
to the house of Harendra (the appellant).
PW-1 saw her entering the house of
Harendra (appellant). When she (deceased)
did not return back, PW-1's wife (PW-2)
sent PW-4 to the house of Harendra
(appellant). PW-4 informed that the house
is locked from inside and despite call,
nobody came out. PW-1's wife (PW-2)
therefore thought that the deceased might
have return home. But when they arrived at
home, they did not find the deceased there.
Consequently, they started searching for
her. Next day, PW-1 along with others
arrived at the house of the appellant
(Harendra) and asked him whether he had
seen PW-1's daughter as she had come
there to have water. PW-1 stated that
though the appellant denied seeing the
deceased but he could not notice that there
were nail scratches on the neck of the
appellant. Moreover, the appellant looked
nervous. PW-1 queried the appellant about
his condition but the appellant did not
answer. Thereafter, the appellant left his
house and went away. PW-1 proved the
FIR dated 28.2.2021 i.e. as Ext. Ka-1. PW1 stated that on the second day of next
month i.e. 2.3.2021 he along with 5-6
persons arrived at the house of Harendra
(the appellant) in search of his daughter
(the deceased). PW-1's wife (PW-2),
Rajveer, Bhola, Veerpal, Rajnish, Mahesh
and
PW-5
also
accompanied
him.
According to PW-1, near the latrine, the
soil appeared fresh (i.e. freshly dug) and
the foot sank in that soil. When they dug
that place they saw dead body of the
deceased lying in the pit. The dead body
was naked. PW-1 stated when his daughter
had gone to fetch water she was fully
clothed wearing a Full Sleeve Kurti, lower,
shawl and slippers and had a chain on her
neck as also a clip on her hair. According
to PW-1, he saw the dead body of the
deceased at about 3.00 PM. Whereafter, he
got a report scribed by one Bhojraj (not
examined), which was thumb marked by
him. The report was marked as Ext.Ka-2.
PW-1 stated that he gave the report
(Ext.Ka-2) at the police station at about
5.00 PM. After that the police arrived at the
spot and took out the dead body and
126 INDIAN LAW REPORTS ALLAHABAD SERIES
conducted inquest of which he was a
witness. In his cross-examination, PW-1
stated that in the house of appellant, his
brother Dharmendra, Dharmendra's wife
and kids also reside. PW-1 stated that on
the next day i.e. 26.2.2021 when he went to
the house of Ram Niwas (father of the
appellant), he met only the appellant there.
PW-1 denied that he went to the house of
the appellant in evening of 25.02.2021.
PW-1 stated that he went to the house of
the appellant in the morning of 26.2.2022.
According to PW-1, Ram Niwas's house
must be 5-6 Km away from the village
abadi or may be a bit less. PW-1 stated that
the distance between the house of appellant
and the field where he along with his
family members were sprinkling fertilizer
is about 250 paces. PW-1 admitted that
before 28.2.2021, he did not give any
information at the Police Station in respect
of his daughter (deceased) having gone
missing. PW-1 stated that the house of the
appellant would be in an area of 'one
bigha'. It has high boundary walls and
inside the boundary, apart from two rooms,
there are two latrines also, but there is no
bath room in the house. PW-1 stated that
the body was noticed in that pit at about
3.00 PM. The police had arrived at about 55.30 PM and then the body was taken out
of the pit. He denied the suggestion that
body was taken out of the pit without the
help of the police. PW-1, however,
admitted that at the time of recovery of
dead body, neither appellant nor any
member of his family was present. PW-1
denied the suggestions that there is enmity
between him and the family of the accused
and that false recovery has been shown by
planting the body there.

24. PW-2 is the mother of the
deceased and wife of PW-1 (the informant).
PW-2 also stated that on 25.2.2021 at about
4.00 PM she along with her husband (PW1), elder daughter (PW-4) and younger
daughter (the deceased) went to the field to
sprinkle fertilizer. From there, her younger
daughter (deceased) went to the house of
appellant to have water. PW-2 saw the
deceased entering the house of appellant.
When, for about an hour, the deceased did
not return, PW-2 sent PW-4 to look for her
in the house of appellant. PW-2 stated that
PW-4 gave calls from outside but nobody
responded though the door of the house
was bolted from inside. Consequently, PW4 informed PW-2 that deceased was not
there. PW-2 thought that the deceased
might have returned back home. But when
on reaching home, she could not find the
deceased, they launched a search for her in
the village but could not find her. On the
next day, PW-1 went to the house of
Harendra (the appellant). On return, PW-1
informed PW-2 that there was a scratch
mark on the face and neck of Harendra
(appellant). PW-2 stated that the appellant
had absconded from the village. She stated
that on 2nd, her husband (PW-1), brotherin-law (Mahesh), PW-5, Rajveer and Rajni
went in search of the deceased. During
search, the deceased was found in a pit
inside the house of appellant of which
information was received by her. On
information, she arrived at the spot and saw
that the dead body of her daughter was
lying in the pit with no clothes on it. She
stated that when her daughter had gone to
sprinkle fertilizer she wore a blue coloured
lower, an orange and coco cola-double
coloured T-shirt and also had a chain on the
neck and had worn a cotton shawl. She also
wore pink coloured slippers and a clip to tie
her hair.

25. In her cross-examination, PW-2 stated
that her daughter (PW-4) had informed her
that the deceased was not in the house of
7 All. Harendra Vs. State of U.P.
127
Harendra (appellant) and that the appellant
was sleeping after bolting the door from
inside. She was also informed by her
husband (PW-1) i.e. the informant that the
appellant
has
left
the
village.
This
information was given to her on the next
day of the incident. She, however, admitted
that when daughter's body was recovered,
at that time, nobody was present in
appellant's house and his house was locked.
She denied the suggestions that she did not
notice the body in that pit. She also denied
the suggestion that she is taking the name
of the appellant only on the basis of
suspicion.

26.

PW-3
is
Constable
Amit
Chaudhary. He prepared the chik FIR of
the case and proved the same as (Ext. Ka3). PW-3 also proved the G.D. entry no. 35,
dated 28.10.2021, at 18.40 hours, which
was marked as Ext. Ka-4.

27. PW-4 is the elder daughter of PW1 (the informant). She is sister of the
deceased. PW-4 stated that the deceased
was her younger sister. On 25.02.2021, at
about 4.00 PM, PW-4 along with her
parents and the deceased had gone to the
field to sprinkle fertilizer. From there the
deceased went to the house of Harendra
(appellant) to have water. PW-4 saw the
deceased entering the house of the
appellant. After some time, when the
deceased did not return, her mother (PW-2)
told her to look out for the deceased. When
she arrived at the house of appellant, she
found that his house was bolted from inside
and despite her calls, nobody responded, as
a result, she returned back and informed
her parents. Upon which, PW-2 felt that the
deceased might have returned back home.
But they did not find her at home. PW-4
stated that after five days she saw the body
of deceased lying in a pit inside the house
of Harendra in a naked condition. During
her cross-examination, PW-4 stated that
when she arrived at the house of appellant
in search of her sister (deceased), she had
pushed the door which appeared bolted
from inside.

28. PW-5 is a villager. He stated that
PW-1 informed him that on 25.02.2021 at
about 4.00 PM deceased went to the house
of the appellant to have water and she was
seen entering the house of the appellant.
PW-5 stated that on 02.03.2021 while they
were searching for the deceased, they
entered the house of the appellant. There,
in the soil, feet got stuck. On being
suspicious, they dug out the place and
found the body of the deceased buried
there. PW-5 stated that the body of the
deceased was taken out from the pit then
the police arrived. The police again
arrived on 3rd and on the pointing out of
the appellant, the clothes of the victim
were recovered from the pit. PW-5
admitted that on paper no. 8A/2 there was
his thumb impression. In his crossexamination, PW-5 stated that the dead
body was taken out from the pit by him
and Mahesh (not examined) and other
villagers
were
also
present
there.
According to this witness, the dead body
was taken out by about 3.00 PM and the
police arrived there by about 5.30-6.00
PM. PW-5 stated that paper no. 8A and
8A/2 bear his thumb impression but what
is written there, he does not remember
now. PW-5 stated that he could come to
know about the victim having gone
missing after about six days, that is on
02.03.2021. PW-5 stated that in the house
of the appellant his brother, sister-in-law
(bhabhi), two children and father also use
to reside. PW-5 denied the suggestion that
body was not found in appellant's house
but was planted there.
128 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Dr.Kirti PW-6 is one of the
doctors in the panel of Doctors who
conducted the post mortem of the body of
the deceased. PW-6 conducted the Gynaeinternal examination of the body. PW-6
proved the injuries recited in the autopsy
report of the deceased. According to PW-6
the estimated time of death was about 6 to
7 days before and death was a result of
asphyxia due to ante-mortem strangulation.
On the statement of PW-6 the post mortem
report was marked Ext. Ka-5. PW-6
accepted the possibility of rape of the
deceased before her death. PW-6 told the
Court that there was a tear in labia majora
at 3 O' clock position. Blood clot was also
found and that it may be a case of sexual
assault.

30. PW.7-S.I. Maharaj Singh. He prepared
the inquest report of the deceased on
02.03.2021. He proved the inquest report as
Ext. ka-6. He also proved the documents
including
Chalan
Nash
prepared
in
connection with autopsy as Ext. Ka-7 to
Ka-10. PW-7 stated that on 02.03.2021, the
mud of the pit from where the body was
recovered was lifted and sealed in separate
boxes of which memo was prepared and
proved as Ext. Ka-11. This witness stated
that on 03.03.2021 on the pointing out of
the appellant, from inside the pit from
where the dead body of deceased was
recovered, after digging. Further, a blue
colour lower, colour T-shirt and one pair of
red colour slippers of the deceased and red
and black colour full sleeves T-shirt and
grey colour lower of the appellant worn at
the time of the incident were recovered. He
prepared a recovery memo of the articles
which was marked Ext. Ka-12. In his crossexamination, PW-7 stated that he was not
the Investigating Officer of the present
case. PW-7 stated that the accused
appellant had himself dug out the clothes
from the pit but if this was not written
while recording his statement under Section
161 Cr.P.C then he cannot give reason for
the same.

31. PW-8 S.I. Aman Singh. He is the
first Investigating Officer of the case when
it was registered under Section 363 IPC on
28.2.2021. He stated that he recorded the
statement of PW-1 and prepared site plan at
the instance of PW-1 which was marked as
Ext. Ka-13. PW-8 stated that on 28.02.2021
he tried to search out the appellant but he
could not get any clue. Thereafter, on
02.03.2021, the appellant house was raided
but he could not be found. Later, the
application moved by the informant (PW-1)
was entered in the CD and Section 302 and
201 IPC were added. On addition of
Sections 302 and 201 IPC investigation
was taken over by Station House Officer.
In his cross-examination, PW-8 stated that
after the FIR, first he visited the field where
PW-1 was doing agricultural work along
with his wife (PW-2) and children. PW-8
stated that he visited the field on
28.02.2021 at about 3-4 PM; thereafter, he
went to the house of appellant along with
the informant (PW-1), where he prepared
the site plan. According to PW-8, the house
of appellant was not locked and a small
gate was open. There he recorded the
statement of PW-1. PW-8 stated that on
2.3.2021 at about 6.00 PM he received an
application from PW-1 at the Police
Station. After perusing the application, he
added the Sections. PW-8 also stated that
before 28.02.2021 he did not receive any
information with regard to the incident.

32. PW-9-S.S.I. Ram Khet Singh.
According to this witness, after addition of
Section 302 and 201 IPC, he took over
investigation of the case. After retrieving
the body from the pit in the house of
7 All. Harendra Vs. State of U.P.
129
appellant, inquest report was prepared and
at the instance of PW-1, he prepared the
site plan of the place from where the dead
body of the deceased was recovered. The
site plant was marked Ext. Ka-14. PW-9
stated that the deceased used to study in
Primary School from where her date of
birth
certificate
was
obtained
which
disclosed her date of birth as 04.05.2010.
PW-9 stated that the photographs and the
articles recovered by the field unit team
from the spot were deposited. He proved
the photographs which were marked
material exhibits 1 to 6. According to PW9, on the basis of information received
from an informer, appellant was arrested
from PGI Gate No. 2, Chandigarh and his
statement was recorded in the C.D.
Thereafter, the appellant was handed over
to S.I. Mahraj Singh and dispatched to go
to the spot. On the same day, on the
pointing out of the appellant, his clothes
and clothes of the deceased were recovered.
On 04.03.2021, biological material was
obtained for DNA profiling. On 5.3.2021,
after preparation of dockets, the recovered
articles were sent to FSL, Ghaziabad
through Constable -Navin Kumar. PW-9
further stated that he recorded the statement
of witnesses during investigation and
Section 376AB IPC and Section 5(m)/6
POCSO Act were added. PW-9 stated that
on 8.3.2021, Constable Naveen Kumar
delivered the recovered items at FSL,
Ghaziabad. Entry of its delivery was made
in the C.D. On 9.3.2021, he submitted
charge sheet against the appellant, which
was marked Ext. Ka-15. In his crossexamination PW-9 stated that on 2.3.2021
at the time of recovery of dead body he was
present at the spot. He stated that
information about discovery of the body
was received on 02.03. 2021 at about 5.00
PM on the R.T.Set. At that time he was at
Manakpur from where he straight away
went to the spot. He arrived at the spot at
about 5.30 PM. He stated that within 10
minutes of his arrival at the spot, Police
Force from the Police Station arrived. PW9 stated that when he arrived at the spot,
the dead body was in the pit. He denied that
by the time he reached the spot, the
villagers had taken out the body from the
pit. PW-9 stated that after arrest, the entry
of appellant at the police station was made
on 3.3.2021 at 14:51 hours (2:51 pm). PW9 proved the fact that all the photographs
taken by the field unit were of the house of
appellant which were marked as material
Ext. Ka 1 to 6. He, however, admitted that
in the photograph no mark of the house is
visible . PW-9 denied the suggestion that
body was not recovered from the house of
the appellant.

33. PW-10 Raj Kumar Singh Raghav is the
Principal of the Primary School where the
victim studied. This witness proved the
date of birth of the deceased as 4.5.2010.
PW-10 proved the photo copy of the
Scholar
Register
and
the
Transfer
Certificate of the deceased which were
marked
as
Ext.
Ka-16
and
Ka-17,
respectively.

ANALYSIS

34. The present case rests on
circumstantial evidence. There is no eye
witness account of either rape or murder.
The law with regard to conviction on the
basis of circumstantial evidence is now
settled. The Supreme Court in the case of
Sarad Birdhichand Sarda Vs. State of
Maharashtra (1984) 4 SCC 116 reiterated
the legal principles in that regard as
follows:

"153. A close analysis of this decision
would show that the following conditions
130 INDIAN LAW REPORTS ALLAHABAD SERIES
must be fulfilled before a case against an
accused can be said to be fully established:

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

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] where the
observations were made :

"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."

(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,

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

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

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

that in all human probability the act
must have been done by the accused.

154. These five golden principles, if
we may say so, constitute the panchsheel of
the proof of a case based on circumstantial
evidence. "

35. The above principles have been
recently discussed and followed by a three
Judges Bench of the Apex Court in the case
of Pappu Vs. The State of Uttar Pradesh
2022 Live Law (SC) 144.

36.

Summarising
these
legal
principles, in Lochan Shrivas Vs. The
State
of
Chhattisgarh,
Manu/SC/1252./2021, a three Judge Bench
of the Supreme Court, in para-14, observed
as under:

"14. It is thus clear that for resting a
conviction in the case of circumstantial
evidence, the circumstances from which the
conclusion of guilt is to be drawn, should
be fully established, and all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused.
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. There must be a chain of evidence
so 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
probabilities, the act must have been done
by the accused."

37. Bearing these legal principles in mind,
we shall now evaluate the evidence of the
case in hand. In the present case, the
prosecution has relied upon the following
circumstances:-

(I) On 25.2.2021 at about 4 PM the
deceased entered the house of the appellant
and was not seen alive thereafter.

(II) On 26.2.2021 PW-1 (father of the
deceased) went to the house of the
appellant to enquire about his missing
daughter (the deceased) where he met the
appellant. At that time though the appellant
denied having any knowledge about
7 All. Harendra Vs. State of U.P.
131
informant's daughter but he noticed the
appellant was nervous and having scratch
marks on his neck.

(III) That except the appellant no other
family member was present in the house on
26.02.2021 and, thereafter, the appellant
left the hosue.

(IV) That on 2.3.2021, at about 3.00
PM, PW-1 (father of the deceased),
accidentally, during search, found the dead
body of his daughter (deceased) buried in a
pit inside the house of the appellant.

(V) Upon receipt of information from
PW-1, on 2.3.2021 the dead body was
taken out from the pit by the Police and
after inquest, autopsy was conducted on
03.03.2021, which suggested that the
deceased was subjected to sexual assault
and killed. The cause of death was due to
asphyxia as a result of ante-mortem
strangulation and the death was estimated
to have occurred 6-7 days before, which
coincides with the date of entry of the
deceased in that house. Further, in the FSL
Report presence of blood in the soil was
found though its origin could not be
confirmed due to disintegration.

(VI) On 3.3.2021 the appellant was
arrested and on his disclosure statement,
clothes of appellant and deceased, alleged
to have been worn at the time of incident,
were recovered from that pit where the
dead body of the deceased was found, after
digging further.

(VII) FSL report shows presence of
human sperm on the underwear, lower and
a used condom recovered from the spot by
the field unit team.
(VIII) As per FSL report, male allele
presence was found on vaginal slide,
vaginal swab,vulval swab, piece of cloth
plus hair of the victim and the DNA of the
Hair comb of the victim matched with the
biological material found present in the
lower and it was of female origin.

FIRST CIRCUMSTANCE RELIED
BY PROSECUTION.

38. PW-1, father of the deceased,
PW-2- mother of the deceased, and PW-4
(elder sister of the deceased) in their
testimony stated that on 25.2.2021 at about
4.00 PM deceased entered the house of
appellant to have water and thereafter she
could not be traced and on 2.3.2021 her
body was dug out from a pit inside the
house of appellant. Although PW-1 in his
examination-in-chief stated that he had also
witnessed the deceased entering the house
of appellant but in his cross-examination
PW-1 stated that when he returned home at
about 6.00 PM, his wife (PW-2) had
informed him about the deceased going
there and then, on the next day, he visited
the house of appellant. Thus, the testimony
of PW-1 that he also witnessed the victim
entering
the
house
of
appellant
on
25.2.2021 at about 4.00 PM appears
doubtful.

39. However, the testimony of PW-2,
the mother of the deceased, and PW-4,
elder sister of the deceased, is consistent
with regard to the deceased entering the
house of the appellant on 25.2.2021 at
about 4.00 PM to have water. According
to PW-2 and PW-4, they saw the deceased
entering the house of appellant. During
cross-examination no suggestion was put
to either of the two witnesses, namely,
PW-2 and PW-4, that they did not witness
the deceased entering the house of
appellant. Therefore, the fact that on
25.2.2021, at about 4.00 PM, deceased
entered the house of appellant has been
proved
by
the
prosecution
beyond
reasonable doubt.