# Jagta v. State

- **Citation:** (2019) 1 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-22
- **Bench:** Ramesh Sinha, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagta-v-state-44447
- **Pages:** 14

## Headnote

A. Section 376 I.P.C. - Absence of injuries
on private parts of the victim would not
rule out rape - Held:- Merely because
there was no injury on the private parts
of the deceased, it could not be said that
she was not subjected to rape. Evidence
that dead body of deceased found semi
naked and clothes were lying scattered.
As per the inquest, there were blood
spots on thigh of deceased. On facts,
Rape established.
(Para 21)

B. Witness - Interested witness- Who
and when to be discarded - Relationship
not sufficient to discredit a witness. Can
be accepted as evidence with care and
caution. Held:- A witness is interested
only if he derives benefit from the result
of the case or as hostility to the accused.

C. There is no rule of law that a court
cannot act on the evidence of interested
witnesses. The only thing is that a court
should
be
careful
and
cautious
in
accepting that evidence and if after due
scrutiny it is found that their evidence
does not suffer from any infirmities, in
that case, there is no reason why a
conviction should not follow on that
evidence. (Para 22)

D. Section 313 Cr.P.C - Examination of
Accused Persons-Duty of Accused to
explain the incriminating circumstances.
Statement of accused under Section 313
of the Cr.P.C- Held:- Duty of accused to
explain the death of deceased or how he
parted company of deceased - Mere
denial by accused and failure to explain
the circumstances proved would be an
additional
link
in
the
chain
of
circumstances against him.(Para 25 & 27)

E. Section 106 - Evidence Act- Burden of
proving
facts
especially
within
knowledge - Held:- Law does not enjoin
a duty on the prosecution to lead
evidence of such character which is
impossible or extremely difficult to be
led. The burden to prove a fact that is
especially within the knowledge of any
person, is on that person. (Para 26)

F. Conviction under Section 3 (2) (V) of
the SC/ST Act- Absence of intention-
Unamended Act applicable - Held:-
Conviction set aside.

The conviction under Section 3 (2) (V) set
aside because of absence of evidence proving
intention of accused in committing the offence
only because she belonged to the Scheduled
Caste community. In the present case
unamended Section 3 (2) (V) of the SC/ST
Prevention of Atrocities act is applicable as
incident is of 09.12.2009. (Para 28)

Both Appeals Partly Allowed.

Chronological list of Cases Cited:-

## Text

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258 INDIAN LAW REPORTS ALLAHABAD SERIES
his daughter was set ablaze by the
accused-appellants and accused Sonu
(deceased) although the evidence on
record indicates that the police had
arrived at the place of occurrence
immediately and taken the deceased along
with her parents P.W.1 informant Ramesh
Chandra and P.W.2 Kusum Lata to the
hospital even though P.W.1 claims
himself to be the eye witness of the
occurrence, totally shatters the credibility
of the F.I.R. Under the circumstances, the
possibility of the F.I.R. of the incident
having
been
prepared
after
due
deliberations, consultations and on the
advice of the police falsely implicating
the appellants along with accused Sonu
(deceased) who had allegedly kidnapped
the deceased as per the prosecution
version or her having an affair with
accused Sonu (deceased) as per the
defence version, on account of their being
his cousin brothers, cannot be ruled out.

47. Moreover, we also have the
evidence of D.W.1 Om Prakash who was
named as a witness in the F.I.R. but was
not produced by the prosecution as a
prosecution witness. After going through
his testimony, we find that he had reached
the house of P.W.1 informant Ramesh
Chandra on hearing the noise. He saw that
although the gate of his house was closed
but on his pushing it, it opened. Then he,
Satpal and Zahoor Ahmad entered his
house and saw the deceased lying on a
pile of cow dung and shouting "इन्होने ने जलम के
ममर भियम। इन्होने की मतलब ममाँ बमप ने जलमकर ममर भियम।" He
further deposed that he immediately
called the police at the occurrence. The
police arrived at the place of occurrence
within 5-7 minutes and took the deceased
and her parents towards police outpost.
He was not aware what happened
thereafter. D.W.1 Om Prakash was crossexamined extensively by the prosecution
counsel as well as the informant's counsel
but strangely no suggestion was given to
him by them that either he was won over
as he was not supporting the prosecution
case or he had not seen the occurrence.
The evidence of D.W.1 has throughout
remained consistent and clinching. We do
not find any reason to disbelieve D.W.1
Om Prakash. From his evidence, the
complicity of the appellants in setting the
deceased ablaze is ruled out completely.

48. Thus, upon a wholesome
consideration of the facts of the case, the
attending circumstances and a careful
scrutiny of the evidence on record, both
oral as well as documentary, we are not
satisfied that the prosecution has been
able to prove its case against the accusedappellants beyond all reasonable doubts
and hence, neither the recorded conviction
of the appellants nor the sentence awarded
to them can be sustained and are liable to
be set-aside.

49. These are the reasons upon which
we had allowed these appeals.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJ BEER SINGH, J.

JAIL APPEAL No. 332 OF 2018
WITH
CRIMINAL APPEAL No. 606 OF 2018

Jagta ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From
Jail,
Sri
Zafar
Abbas
1 All. Jagta Vs. State
259
Counsel for the Opposite Party:
Sri Irshad Husain, A.G.A.

A. Section 376 I.P.C. - Absence of injuries
on private parts of the victim would not
rule out rape - Held:- Merely because
there was no injury on the private parts
of the deceased, it could not be said that
she was not subjected to rape. Evidence
that dead body of deceased found semi
naked and clothes were lying scattered.
As per the inquest, there were blood
spots on thigh of deceased. On facts,
Rape established.
(Para 21)

B. Witness - Interested witness- Who
and when to be discarded - Relationship
not sufficient to discredit a witness. Can
be accepted as evidence with care and
caution. Held:- A witness is interested
only if he derives benefit from the result
of the case or as hostility to the accused.

C. There is no rule of law that a court
cannot act on the evidence of interested
witnesses. The only thing is that a court
should
be
careful
and
cautious
in
accepting that evidence and if after due
scrutiny it is found that their evidence
does not suffer from any infirmities, in
that case, there is no reason why a
conviction should not follow on that
evidence. (Para 22)

D. Section 313 Cr.P.C - Examination of
Accused Persons-Duty of Accused to
explain the incriminating circumstances.
Statement of accused under Section 313
of the Cr.P.C- Held:- Duty of accused to
explain the death of deceased or how he
parted company of deceased - Mere
denial by accused and failure to explain
the circumstances proved would be an
additional
link
in
the
chain
of
circumstances against him.(Para 25 & 27)

E. Section 106 - Evidence Act- Burden of
proving
facts
especially
within
knowledge - Held:- Law does not enjoin
a duty on the prosecution to lead
evidence of such character which is
impossible or extremely difficult to be
led. The burden to prove a fact that is
especially within the knowledge of any
person, is on that person. (Para 26)

F. Conviction under Section 3 (2) (V) of
the SC/ST Act- Absence of intention-
Unamended Act applicable - Held:-
Conviction set aside.

The conviction under Section 3 (2) (V) set
aside because of absence of evidence proving
intention of accused in committing the offence
only because she belonged to the Scheduled
Caste community. In the present case
unamended Section 3 (2) (V) of the SC/ST
Prevention of Atrocities act is applicable as
incident is of 09.12.2009. (Para 28)

Both Appeals Partly Allowed.

Chronological list of Cases Cited:-
1. AIR 1984 SC 1622Sharad Bhirdichand
Sharda v State of Maharstra.

2. (2000)5 SCC 197 Joseph v State of Kerala.

3. AIR 1990 SC 79 Padala Veera Reddy v State
of AP.

4. (1992) 2 SCC 86 State of UP v Ashok Kumar
Srivastava.

5. (1980) 4 SCC 262 Rafiq v State of UP.

6. (1983) 4 SCC 10 Sheikh Zakir v State of
Bihar.

7. (2005) SCC (Crl) 834 State of Punjab v
Hardam Singh.

8. AIR 1983 SC 364 Dilip Singh v State of
Punjab.

9. 2005 SCC (Crl) 1213 Harbans kaur v State
of Harayana

10. 2004 (7) SCC 629 State of UP v Kishan
Chand.

11. AIR 1977 SC 472 Dalbir Kaur v State of
Punjab.
260 INDIAN LAW REPORTS ALLAHABAD SERIES
12. (2009) 13 SCC 790Satbir Singh &Ors. v
State of UP.

13. (2012) 5 SCC 766 Neel Kumar@ Anil
Kumar v State of Harayna.

14. (2000) 6 SCC 286 Vasa Chandra Shekhar
Rao v Poona Satyarayana &Anr.

15. (2000) 10 SCC 72 Geetha v State of
Karnatka.

16. (2007) 2 SCC 170 Ramdas and Ors v State
of Maharshtra. (E-3)

(Delivered by Hon'ble Raj Beer Singh, J.)

1. These two appeals have been
preferred against the judgment and order
dated 05.05.2015 passed by the Learned
Additional District and Sessions Judge,
Court No.2, Moradabad in Session Trial
No. 419 of 2010, (State vs. Sunder Singh
and Anr.) under Sections 302/34, 376 of
Indian Penal Code (hereinafter referred to
as IPC) and Section 3(2)(v) of The
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act,
1989 (hereinafter referred to as SC/ST
Act), P.S. Asmoli, District Sambhal
(Sessions Division Moradabad), whereby
appellants Sunder Singh and Jagta have
been convicted under Sections 302/34,
376 (D) IPC and 3(2)(v) SC/ST Act. Both
the
appellants
were
sentenced
to
imprisonment for life along with fine of
Rs. 10,000/- each under Section 302/34
IPC, imprisonment for life along with fine
of Rs. 10,000/- each under Section 376-D
IPC and imprisonment for life along with
fine of Rs. 10,000/ each under Section
3(2)(v) of SC/ST. In default of payment
of fine, they have to undergo three years
rigorous imprisonment under each head.
All the sentences were directed to run
concurrently.

2. Prosecution version is that on
09.12.2009 at 8:00 AM complainant's
wife Suman has gone to jungle for
agriculture work in sugarcane crop and
after
that
at
around
10:30
PM,
complainant's sister, aged 14 years, (who
has been referred in this judgment as
deceased) has left her home to go there
for collecting fodder from Suman. One
Samar Pal and Mukhiya @ Dinesh have
also seen the deceased while she was
going to jungle but deceased did not reach
there. When Suman came at her home and
inquired about deceased, complainant's
father PW-2 Karan Singh told her that the
deceased has left home at about 10:30
AM
to
collect
fodder
from
her.
Complainant's wife Suman, father and one
Karan Singh started search of deceased
and when they reached near sugarcane
field of Kripal Singh, at around 01.00 PM,
appellants/accused Sunder Singh and
Jagta came out from said sugarcane field
and when they were asked
about
deceased, they flurried and ran away from
there. When complainant's wife, father
and Karan Singh made search in the same
sugarcane field, dead body of deceased
was found lying inside the said sugarcane
field. There was a rope around her neck
and her clothes were lying scattered. As
per complainant, both the appellants have
committed rape upon his sister deceased
and due to the fear, they committed her
murder. One Samar Pal and Mukhiya @
Dinesh told that when deceased was going
to jungle, both the accused appellants
were present near the spot as they were
collecting water pipe there and except
them there was no other person and thus,
murder of deceased was committed by
them.

3. Mentioning all these facts,
complainant Padam Singh has submitted a
1 All. Jagta Vs. State
261
tahreer Ex. Ka-1 at police station and on
that basis, case was registered against
both
the
appellants-accused
under
Sections 376, 302 IPC and 3(1)(12)
SC/ST Act on 09.12.2009 at about 17:35
hours vide FIR Ex. Ka-2.

4. The inquest proceedings were
conducted by PW-8 S.I. Raj Kumar
Sharma and inquest report Ex. Ka-7 and
other related papers like Photo lash, letter
RI, letter CMO and challan dead body etc
Ex. Ka- 8 to ka-11 were prepared. One
sleeper of the deceased and some broken
bangles found at the spot were also seized
vide memo Ex. Ka-12. The dead body of
deceased was sealed and sent for
postmortem.

5. Postmortem on the dead body of
the deceased was conducted by PW-5 Dr.
S.N.
Tiwari
on
10.12.2009
vide
postmortem
report
Ex.
Ka-4
and
following anti mortem injuries were
found on the person of deceased.

(i)
Multiple
Abrasion
and
contusion 8 cm x 5 cm over on right of
neck.

(ii) Bleeding seen in both
nostril.

(iii) Multiple Abrasion and
contusion covering 4 cm x 2 cm over left
side chick.

(iv) On dissection hyoid bone
found fractured.

As per Autopsy Surgeon, the
cause of death of the deceased was
Asphyxia as a result of ante-mortem
strangulation.

6. Initially investigation was conducted
by circle officer Sarvesh and subsequent
investigation was conducted PW-6 CO
Brejesh
Singh.
During
course
of
investigation on 10.12.2009 both the accused
persons were arrested and their clothes were
seized separately vide seizure memo Ex. Ka13. After completion of the investigation,
both the accused persons were chargesheeted vide Ex. Ka-5.

7. Trial Court framed charges under
Sections 376, 302/34 IPC and 3(2)(v) of
SC/ST Act against both the accused
persons. They pleaded not guilty and
claimed trial.

8. In order to bring home the guilt of
the accused persons, prosecution has
examined
eight
witnesses.
After
prosecution
evidence,
the
both
the
accused persons were examined under
Section 313 Cr.P.C., wherein they denied
prosecution evidence and claimed that
they
have
been
falsely
implicated.
However, no evidence was adduced in
defence.

9. After hearing and analyzing the
evidence on record, both the appellants
were convicted under Sections 302/34,
376 (D) IPC and 3(2)(v) of SC/ST Act by
the trial court and were sentenced as
stated earlier.

10.
Being
aggrieved
by
the
impugned judgment and order, accused
appellant Jagta has preferred the Jail
Appeal No. 332 of 2018 and accused
appellant Sunder Singh has preferred
Criminal Appeal No. 606 of 2018.

11. On the request of the appellant
Jagta for appointing an Amicus Curiae to
argue his appeal hence we appointed Sri
Zafar Abbas, Advocate as Amicus Curiae
to argue his appeal who is also appearing
as counsel for appellant Sunder Singh in
the connected appeal.
262 INDIAN LAW REPORTS ALLAHABAD SERIES

12. We have heard Sri Zafar Abbas,
learned counsel for the appellants and Sri
Irshad Husain and learned A.G.A. for the
State and perused record.

13. Learned counsel for the
appellants has argued that there is no
reliable evidence against the appellants
and they have been convicted merely on
the basis of suspicion. PW-1 Padam Singh
and PW-2 Karan Singh are the brother
and father of the deceased and thus, they
are interested witnesses and therefore,
their evidence cannot be relied upon.
There is no eye-witness of the alleged
incident and the chain of circumstances is
not complete. The statement of PW-2
Karan Singh and PW-3 Samarpal Singh
that both the appellants were seen coming
out from sugarcane field of Kripal Singh
and ran away, is not reliable. Further,
there is no conclusive medical evidence
that deceased was subjected to rape. It has
been further submitted that there is no
material on record at all to attract
provisions of Section 3(2)(v) SC/ST Act.
It was submitted that learned trial court
has not appreciated the evidence properly
and committed error by convicting the
appellants.

14. Per contra learned A.G.A.
submitted that the circumstantial evidence
on record clearly points out that both the
appellant-accused
have
subjected
deceased to rape and due to fear that
deceased may disclose the incident, they
committed her murder. There is evidence
of PW-3 Samarpal Singh that when
deceased was going to collect fodder, she
was seen by PW-3 near agricultural field
of Kripal Singh and that both the
appellants Sunder Singh and Jagta were
also there as they were collecting water
pipes there. Further there is evidence of
PW-2 that while they were searching
deceased and reached near filed of
sugarcane filed of Kripal Singh, both
appellants have come out from sugarcane
field and thereafter dead body of deceased
was recovered from same place. It was
pointed out that medical evidence clearly
shows that deceased was molested and
subjected to rape and thereafter her
murder was committed. Learned A.G.A.
submitted that conviction of appellant is
based on evidence and there is no
illegality in the same.

15. In this case there is no eye witness
of the alleged incident and case is based on
circumstantial evidence. It is well settled that
though conviction can be based on
circumstantial evidence alone but for that the
prosecution must establish the chain of
circumstances, which consistently points to
the accused and accused alone and is
inconsistent with their innocence. It is further
essential for the prosecution to cogently and
firmly establish the circumstances from
which interference of guilt of accused is to be
drawn. These circumstances then have to be
taken into consideration cumulatively. They
must be complete to conclude that within all
human probability, the accused and none else
have committed the offence. In a landmark
judgment of the Supreme Court in Sharad
Birdhichand
Sarda
Vs.
State
of
Maharashtra, AIR 1984 SC 1622, the
Apex Court held as under:

"152. 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:

(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
1 All. Jagta Vs. State
263
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 Sahebaro Bobade V
State of Maharashtra 1973 CriLJ1783
where the following observations were
made:

Certainly, it is 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 accuses, 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.

153.
These
five
golden
principles, if we may say so, constitute the
panchsheel of the proof of a case based
on circumstantial evidence".

In Joseph vs. State of Kerala,
[(2000) 5 SCC 197], the Hon'ble Apex
court
has
explained
under
what
circumstances conviction can be based
purely on circumstantial evidence. It was
observed, that,

16. "it is often said that though
witnesses may lie, circumstances will not,
but at the same time it must cautiously be
scrutinized to see that the incriminating
circumstances are such as to lead only to
a hypothesis of guilt and reasonably
exclude every possibility of innocence of
the accused. There can also be no hard
and fast rule as to the appreciation of
evidence in a case and being always an
exercise pertaining to arriving at a
finding of fact the same has to be in the
manner necessitated or warranted by the
peculiar facts and circumstances of each
case. The whole effort and endeavor in
the case should be to find out whether the
crime was committed by the accused and
the circumstances proved form themselves
into a complete chain unerringly pointing
to the guilt of the accused."

Similar view has been expressed
in Padala Veera Reddy v. State of
Andhra Pradesh, (AIR 1990 SC 79). In
C. Chenga Reddy and others v. State of
Andhra Pradesh, (AIR 1996 SC 3390), the
Supreme Court has held that:-

"In
a
case
based
on
circumstantial evidence, the settled law is
that the circumstances from which the
conclusion of guilt is drawn should be
fully proved and such circumstances must
be conclusive in nature. Moreover, all the
circumstances should be complete and
there should be no gap left in the chain of
evidence.
Further,
the
proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence."

In State of U.P. vs. Ashok
Kumar Srivastava, [(1992) 2 SCC 86], it
was pointed out that great care must be
taken
in
evaluating
circumstantial
evidence and if the evidence relied on, is
reasonably capable of two inferences, the
one in favour of the accused must be
accepted. It was also pointed out that the
264 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances relied upon must be found
to have been fully established and the
cumulative effect of all the facts so
established must be consistent only with
the hypothesis of the guilt.

The principle that emerges from
these decisions is that where a conviction
rests squarely on circumstantial evidence,
the inference of guilt can be justified only
when all the incriminating facts and
circumstances
are
found
to
be
incompatible with the innocence of the
accused or the guilt of any person. The
circumstances from which an inference of
guilt is drawn must be fully established
and there should not be any missing links
in the case. 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.
In
deciding
the
sufficiency of the circumstantial evidence
for the purpose of conviction, the court
has to consider the total cumulative effect
of all the proved facts, each one of which
reinforces the conclusion of guilt and if
the combined effect of all these facts
taken
together
is
conclusive
in
establishing the guilt of the accused, the
conviction would be justified. To put it
simply, the circumstances forming the
chain of events should be proved and they
should cumulatively point towards the
guilt of the accused alone.

16. In the instant case perusal of
evidence shows that PW-1 Padam Singh
has stated that on the day of incident his
wife has gone to collect fodder from
sugarcane crop and after that his sister/
deceased, aged about 14 years, has also
left home for going there to collect fodder
from her. While going to jungle, she was
seen by Kripal Singh, Samarpal, Mukhiya
@ Dinesh and on their asking, she has
told that she was going to collect fodder.
When deceased did not reach there, wife
of PW-1 Padam Singh came at her home
and inquired about the deceased but father
of PW-1 told that deceased had left home
at 10:30 AM for going to jungle to collect
fodder. PW-1 further stated that while
making search of deceased, her wife
Suman, father Karan Singh and one
Samarpal reached near sugarcane field of
Kripal Singh, at the same time at around
1:00 PM, appellants Sunder Singh and
Jagta Singh were coming out from
sugarcane field and when they were asked
about the deceased, they flurried and ran
away from there. Thereafter, dead body of
deceased
was
found
in
the
same
sugarcane filed. There was a rope around
her neck and her clothes were lying
scattered. PW-1 Padam Singh further
stated that the appellants-accused Jagta
and Sunder Singh have committed rape
upon the deceased and with the fear that
the
incident
may
come
out,
they
committed her murder. At the spot there
were only accused Sunder Singh and
Jagta and none else. PW-1 Padam Singh
has proved his tahreer as Ex. Ka-1.

17. P.W. 2 Karan Singh stated that
on the day of incident, his daughter
(deceased) has gone to collect fodder
from the field of one Inderpal but she did
not return back. When he along with
others has gone to search her and reached
near the field of Kripal Singh, at about
1:00 PM, appellants Jagta and Suder
Singh were coming out from filed of
Kripal Singh and when they were
enquired about deceased they did not tell
anything. When they were again asked,
both the accused ran away from there.
1 All. Jagta Vs. State
265
PW-2 stated that they reached at the point
of field from where both the appellants
have come out and saw that some crops of
sugarcane was lying damaged there and at
some distance the dead body of deceased
was lying in semi-naked condition and
there was a rope around her neck and her
clothes were lying scattered. PW-2 further
stated that both the appellants-accused
were known to him as Sunder is resident
of his village while Jagta is resident of
nearby village Sedpur and both were
employed by one Kanchan Jaat.

18. PW-3 Samarpal has stated that
on the day of incident, at about 10:3011:00 AM, he and Mukhiya @ Dinesh
were carrying fodder from jungle and
when reached near sugarcane field of
Kripal Singh, deceased has met them and
when they inquired from her as to where
she was going, she told that she was going
to collect fodder. PW-3 further stated that
near the filed of Kripal Singh, appellantsaccused Sunder Singh and Jagta were
collecting water pipe. PW 3 stated that
they both were known to him since before
the incident.

19. PW-4 Gurudev Singh is a formal
witness, who has recorded FIR. PW-6
A.S.P. Brijesh Singh has conducted part
investigation. During investigation he has
recorded the statements of witness and
has filed charge-sheet Ex. Ka-5.

20. PW-7 Dr. M.C. Gurecha has
examined vaginal smear of deceased and
has proved his report Ex. Ka-6. As per
PW 6, sperm were found in the vaginal
smear of the deceased.

21. It is clear from the post-mortem
report of the deceased that the death of the
deceased was homicidal in nature. This fact
has not been disputed from the side of
appellants. However it was submitted by the
learned counsel for the appellants that there
is no medical evidence to establish that
deceased was subjected to rape. In this regard
it may be stated that merely because there
was no injury on the private parts of
deceased, it could not be said that deceased
was not subjected to rape. Vaginal smear
examination report exhibit ka-6, clearly
shows that sperms were found in the vaginal
smear of the deceased. In this regard,
statement of PW-7 Dr. M.C. Gurecha, who
examined vaginal smear of deceased, is clear
that sperm were found in the vaginal smear
of deceased. Further, as per the FSL report
exhibit ka-15, sperms were also found at the
underwear of appellant-accused Jagta. There
is also evidence to the effect that dead body
of deceased was found in semi-naked
condition and clothes were lying scattered.
As per the inquest report, there were blood
spots at the thigh of deceased. All these facts
clearly established that before her murder,
deceased was subjected to rape. The
deceased was a young girl, aged 14 years,
thus,
she
could
have
been
easily
overpowered by the accused-appellants and
thus, the fact that she did not suffer any
injury at her private parts, can not be given
much importance. It is well settled that
absence of injuries on private parts of victim
would not rule out being subjected to rape. In
this connection reference may be made to
case of Rafiq vs. State of U.P. (1980) 4 SCC
262 and Sheikh Zakir vs. State of Bihar
(1983) 4 SCC 10. The contention of the
learned counsel for the appellants that there
is no medical evidence of rape has no force.

22. It was argued by the learned
counsel for the appellants that PW 1 and
PW 2, being brother and father of
deceased, are interested witness. In this
regard, it may be observed that mere
relationship is not sufficient to discredit a
266 INDIAN LAW REPORTS ALLAHABAD SERIES
witness. It is well settled that a natural
witness may not be labelled as interested
witness. Interested witnesses are those who
want to derive some benefit out of the
litigation/case. In case the circumstances
reveal that a witness was present on the
scene of the occurrence and had witnessed
the crime, his deposition cannot be
discarded merely on the ground of being
closely related to the victim. Generally
close relations of the victim are unlikely to
falsely implicate anyone. Relationship is
not sufficient to discredit a witness unless
there is motive to give false evidence to
spear the real culprit and falsely implicate
an innocent person is alleged and proved.
A witness is interested only if he derives
benefit from the result of the case or as
hostility to the accused. In case of State of
Punjab Vs Hardam Singh, 2005, S.C.C.
(Cr.) 834, it has been held by the Hon'ble
Apex Court that ordinarily the mere
relations of the deceased would not depose
falsely against innocent persons so as to
allow the real culprit to escape unpunished,
rather the witness would always try to
secure conviction of real culprit. In case of
Dilip Singh Vs State of Punjab, A.I.R.
1983, S.C. 364, it was held by the Hon'ble
Supreme Court that the ground that the
witnesses being the close relatives and
consequently being the partition witness
would not be relied upon has no substance.
Similar view has been taken by the Hon'ble
Supreme Court in case of Harbans Kaur V
State of Haryana, 2005, S.C.C. (Crl.) 1213;
and State of U.P. vs. Kishan Chandra and
others, 2004 (7), S.C.C. 629. The
contention about branding the witnesses as
interested witness and credibility of close
relationship
of
witnesses
has
been
examined by Hon'ble Apex court in a
number of cases. A close relative, who is a
very natural witness in the circumstances
of a case, cannot be regarded as an
'interested witness (Dalbir Kaur v. State of
Punjab, AIR 1977 SC 472). The mere fact
that the witnesses were relations or
interested would not by itself be sufficient
to discard their evidence straight way
unless it is proved that their evidence
suffers from serious infirmities which
raises considerable doubt in the mind of
the court. There is no rule of law that a
Court cannot act on the evidence of
interested witnesses. The only thing is that
a Court should be careful and cautious in
accepting that evidence and if after due
scrutiny it is found that their evidence does
not suffer from any infirmities, in that case,
there is no reason why a conviction should
not follow on that evidence. In the case of
Satbir Singh & Ors V State of Uttar
Pradesh [(2009) 13 SCC 790], it was
observed that it is well-settled principle of
law that only because the witnesses are not
independent ones may not by itself be a
ground to discard the prosecution case. In
the present case it is quite natural that it is
the family members of the deceased, who
would know as to when and where
deceased, a girl aged 14 years, has gone.
When deceased gone missing, it is quite
natural that her family members would
search her. The version put forward by PW
2 and PW 3 is quite natural and nothing
adverse could be elicited in their crossexamination. Further, PW 3 appears a
thoroughly independent witness and the
prosecution version finds support from his
statement. Here it would be pertinent to
mention that there is nothing to show that
these witnesses have any enmity or grudge
against the appellants. In view of all these
facts, the evidence PW 1 and PW 2 can not
be doubted on the ground that they are
brother and father of the deceased.

23. From statements of PW 1 and
PW 2, it is clear on the day of incident at
1 All. Jagta Vs. State
267
about 11.00 AM, deceased has gone to
field to fetch fodder from the wife of
complainant/ PW1. The evidence of PW 3
is to the effect that around same time
deceased has met him near sugar cane
field of one Kripal Singh and at that time
both the accused-appellants were present
there as they were collecting water pipe
near land of Kripal Singh. The evidence
of PW 2 further shows that when PW 2
along with other persons has gone to
search deceased, at about 01.00 PM both
the accused-appellants were seen coming
out from the field of Kripal Singh. When
PW 2 and his companion enquired them
about the deceased, they ran away from
there. PW 2 and others went at the place,
from where both accused have come out
from field of Kripal Singh, and saw that
some sugarcane crop was lying damaged.
As they went further inside the field, they
found that dead body of deceased was
lying in semi-naked condition and her
clothes were lying torn and there was a
rope around her neck. On all these facts,
statements of witnesses are clear and
cogent. These witnesses have been
subjected to cross-examination but no
such fact could emerge, which may create
any doubt about credibility of these
witnesses. Statement of PW 2 that at
around 11.00 his daughter (deceased) has
gone to fetch fodder is supported by PW
3, who appears an independent witness.
From statement PW 3 it is also
established that at around 11.00 AM,
when deceased was last seen alive, both
the accused-appellants were present there
as they were collecting water pipe there.
Thereafter, at about 01.00 PM, both the
accused-appellants were seen coming out
from the field of alleged Kripal Singh and
when they were enquired about the
deceased, they both ran away and after
that dead body of deceased was found
inside sugar cane field of Kripal Singh. In
fact as per PW 2, when they reached at
the point of alleged sugarcane field, from
where both accused persons have out and
when PW-2 and his companion went a
little further, dead body of deceased was
found lying there. The statements of the
said witnesses are clear and cogent and no
such fact could be elicited from their
cross-examination, which could make any
dent on the credibility of tthese witnesses.
Further, as stated earlier, sperm were
found in vaginal swab of deceased, which
indicates that before her death, she was
molested and subjected to rape. It appears
that deceased has resisted the move of
molesters as there were flesh pieces in her
nails.

24. One of the important piece of
evidence is that on the next day of
incident, pant and underwear of both the
accused persons were seized by PW 8
vide seizure memo exhibit ka- 13 and
later on same were sent to FSL for
examination. As per FSL report exhibit
ka-15, spots of human blood as well
sperm were found on the underwear of
accused-appellant
Jagta.
Motive
of
committing murder of deceased is quite
apparent as deceased was subjected to
forcible rape and possibly due to the fear
that she may disclose the incident, she
was murdered. This fact also finds
support from fact that as per postmortem
report exhibit ka-4, presence flesh pieces
was found in her nails, which indicates
that the deceased has resisted the move of
molesters.

25. Here it would be pertinent to
mention that in their statements u/s 313
CrPC, the appellants have not offered any
explaination what so ever regarding the
incriminating circumstances. They have
268 INDIAN LAW REPORTS ALLAHABAD SERIES
simply denied prosecution evidence but did
not take any specific plea regarding
circumstances that at 11.00 AM they were
seen around the deceased and that at around
01.00 PM when PW 2 and others were
searching deceased, they have come out from
the sugar cane field of Kripal Singh and ran
away and soon thereafter dead body of
deceased was recovered from the same
portion of field, from where they have fled.
Similarly no specific plea was taken qua
evidence that sperms were found on the
underwear of appellant-accused Jagta and
that blood spots were also found on his pant.
No doubt, it is duty of prosecution to prove
its case by cogent evidence but nevertheless
in a case based on circumstantial evidence,
when prosecution has alleged and led
evidence to the effect deceased was last seen
alive with accused, it is duty of accused to
explain as how deceased suffered death or
how he parted away company of deceased.
In Neel Kumar @ Anil Kumar v. State of
Haryana, (2012) 5 SCC 766, the Apex
Court observed:

"It is the duty of the accused to
explain the incriminating circumstance
proved against him while making a
statement under Section 313 CrPC.
Keeping silent and not furnishing any
explanation for such circumstance is an
additional
link
in
the
chain
of
circumstances to sustain the charges
against him. (See also: Aftab Ahmad
Anasari v. State of Uttaranchal, AIR 2010
SC 773)."

The
Apex
Court
in
Vasa
Chandrasekhar
Rao
vs.
Ponna
Satyanarayana &Anr. [(2000) 6 SCC
286] and Geetha vs. State of Karnataka
[(2000) 10 SCC 72] while explaining the
law relating to circumstantial evidence
has ruled that where circumstances
proved are put to the accused through his
examination under Section 313 of the
Code and the accused merely denies the
same, then such denial would be an
additional
link
in
the
chain
of
circumstances to bring home the charge
against the accused. As indicated earlier,
in
this
case,
the
incriminating
circumstances were put to the appellants
while recording their statements under
Section 313 of the Code of Criminal
Procedurebut they have merely denied the
same. Therefore, such denial on the part
of the appellant and failure to explain the
circumstances proved will have to be
treated as an additional link in the chain
of circumstances to bring home the charge
against the appellants.

26. On the basis of evidence, it is
establisheded that at about 11.00 AM
when deceased was last seen alive near
sugarcane field of alleged Kripal Singh,
both the accused-appellants were present
there as they were working in a nearby
field and were collecting water pipe and
thereafter at around 01.00 PM, they were
seen coming out from said sugarcane field
and soon after dead body of deceased was
found in side the same sugar cane field,
from where both the accused have fled
away. As stated above, appellants have
failed to offer any explaination regrading
any of the incriminating circumstance
esatblished against the. Law does not
enjoin a duty on the prosecution to lead
evidence of such character which is
almost impossible to be led or at any rate
extremely difficult to be led. The duty on
the prosecution is to lead such evidence
which it is capable of leading, having
regard to the facts and circumstances of the
case. Here it is necessary to keep in mind
Section 106 of the Evidence Act which says
that when any fact is especially within the
knowledge of any person, the burden of
1 All. Jagta Vs. State
269
proving that fact is upon him. If an offence
has been committed secrecy inside a house,
the initial burden to establish the case would
undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it
to establish the charge cannot be of the same
degree as is required in other cases of
circumstantial evidence. The burden would
be of a comparatively lighter character. In
fact it is not intended to relieve the
prosecution of its burden to prove the guilt of
the accused beyond reasonable doubt but
where the prosecution has succeeded in
proving facts from which a reasonable
inference can be drawn regarding the
existence of certain other facts, unless the
accused by virtue of his special knowledge
regarding such facts, failed to offer any
explanation which might drive the court to
draw a different inference. No doubt mere
conjectures or suspicion cannot take the
place of legal proof and the large distance
between `may be' true and `must be' true,
must be covered by way of clear, cogent and
unimpeachable evidence produced by the
prosecution, before an accused is condemned
as a convict, as observed by the Apex Court,
but it is equally established that the law does
not enjoin a duty on the prosecution to lead
evidence of such character which is almost
impossible to be led or at any rate extremely
difficult to be led. If a fact is especially
within the knowledge of any person, the
burden of proving that fact is upon him.

27. In the present case, accusedappellants have failed to give any
explanation,
whatsoever
and
thus
inference has to be drawn that it were the
accused-appellants, who committed the
incident in question. It would be pertinent to
mention that time gap between the last seen
of deceased around accused-persons and
recovery of dead body of deceased is of just
two hours. As stated earlier, deceased was
subjected to rape before her murder and that
she has resisted the move of her molesters.
Thus, time gap between the said two
circumstances is not much so as to create any
doubt that any other person might have
committed the incident. In such a small gap
of time there is no possibility of any other
theory except that the incident was
committed by the appellants, specially when
they have not come up with any explanation
what so ever.

28. Considering entire evidence on
record, so far as charge u/s 302 IPC is
concerned,
it
is
manifest
that
the
prosecution has established the chain of
circumstances, which consistently points
to the accused-appellants Jagta and
Sunder alone and these circumstances are
inconsistent with their innocence. All the
circumstances
have
been
firmly
established and when these circumstances
are taken into consideration cumulatively,
they conclude that within all human
probability, it were the accused-appellants
Jagta and Sunder and none else have
committed the murder of the deceased. It
is also established that before her death
deceased was molested and subjected to
rape.