# Rahatjan v. State of U.P

- **Citation:** (2024) 5 ILRA 1282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-03
- **Case number:** Criminal Appeal No. 72 of 1984
- **Bench:** Siddharth, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahatjan-v-state-of-u-p-52033
- **Pages:** 24

## Headnote

Criminal Law: Indian Penal Code, 1860 -
Section 302 - Murder - Evidence Act, 1872
- Sections 25, 26 & 27 - Juvenile Justice
(Care and Protection of Children) Act, 2000
- Section 15, 16 - accused committed
murder of a young boy of 12 years of age
by strangulating him - accused made an
5 All. Rahatjan Vs. State of U.P.
1283
extra judicial confession - Charge Sheet -
cognizance of the offence - Trial court
framed charge - prosecution examined
nine witnesses - Contention - Based on
circumstantial evidence - no eye witness -
prosecution neither produced doctor nor
examined constabl e - St.ment under
section 313 Cr.P.C. that he has been falsely
implicated due to some land dispute
between the informant and accused -
appellant raised plea of juvenility - JJB
declared juvenile on the date of offence -
finding - not been set aside by order of any
superior court - hence, declared juvenile -
as per medical age determination report,
accused is 50 years of age - not required to
sent to Special Home - Conviction upheld
and affirmed.(Para - 3, 16, 38, 41, 42, 47,
48, 49)

Held: Although confession of accused for
committing murder of deceased on account of
his ill intention to commit unnatural sex with
the deceased and consequent threatening
hurled by the deceased being made before the
police and police custody cannot be permitted
to be proved by the public witnesses like PW-5
and PW-6 on account of statutory prohibition
under section 25 and 26 of Evidence Act, yet
the recovery of dead body and Angochha used
in strangulation of the deceased based on
disclosure St.ment of the accused before the
police and therefore, protected under section
27 of the Evidence Act, which is exception of
section 25 and 26 of Evidence Act. Prosecution
has successfully proved the links of the chain
of circumstantial evidence, accused was last
seen by three witnesses in the company of the
deceased and the deceased was never found
alive thereafter in the evening preceding to the
recovery of dead body. Appellant raised plea of
juvenility during pendency of appeal . Juvenile
Justice Board declared appellant age around 14
years on the date of offence. (Para - 39, 40,
41, 42, 48)

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,741 of 86,504. This is a partial read: ask again with offset=39741 for what follows._

1282 INDIAN LAW REPORTS ALLAHABAD SERIES
and join hands with persons having the same
intention.

iii. Conspiracy is hatched in
private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence.
Usually, the existence of the conspiracy and
its objects have to be inferred from the
circumstances and the conduct of the
accused.

iv. Where in pursuance of the
agreement,
the
conspirators
commit
offenses individually or adopt illegal means
to do a legal act that has a nexus to the
object of the conspiracy, all of them will be
liable for such offenses even if some of them
have not actively participated in the
commission of those offenses.

36.
 These
principles
were
followed in Yakub Abdul Razak Memon v.
State of Maharashtra, (2013)13 SCC 1 (2Judge Bench), wherein this Court reiterated
that to establish conspiracy it is necessary to
establish an agreement between the parties.
Further, the offence of criminal conspiracy
is of joint responsibility, all conspirators are
liable for the acts of each of the crimes
which have been committed as a result of the
conspiracy. [See also: Arvind Singh v. State
of Maharashtra, (2021)11 SCC 1 (3-Judge
Bench); Mohd. Naushad (supra)]"

(v) The Court also takes note of
long criminal history of grievous offences of
applicant and submission that he is a flight
risk as well as likelihood of repeating
offence is also very high.

(vi) The Court also takes note of
reasons assigned while rejecting bail
application of co-accused, Ankush Agrawal.
(vii) It has not been denied that prosecution
witnesses have substantially supported
prosecution case and that they have been
tested with lengthy cross-examination.

9. The bail application is accordingly
rejected.

10. Trial Court concerned is directed to
conclude trial expeditiously.

11. Registrar (Compliance) to take
steps.

12. A practice to engage a new
Advocate by an applicant through his
pairokar on date of hearing or few days
back, only with an object to take an
adjournment,
specifically
in
bail
applications, which has already been
adjourned repeatedly on earlier dates on
request of counsel for applicant, is liable to
be discouraged. It is duty of an Advocate to
expedite hearing of a bail application and
not to prolong it.
----------
(2024) 5 ILRA 1282
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 72 of 1984

Rahatjan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
S.I. Jafri, Amar Nath Sharma, Kuldeep Johri,
Shadab Ali, Vimlendu Tripathi

Counsel for the Respondent:
DGA

Criminal Law: Indian Penal Code, 1860 -
Section 302 - Murder - Evidence Act, 1872
- Sections 25, 26 & 27 - Juvenile Justice
(Care and Protection of Children) Act, 2000
- Section 15, 16 - accused committed
murder of a young boy of 12 years of age
by strangulating him - accused made an
5 All. Rahatjan Vs. State of U.P.
1283
extra judicial confession - Charge Sheet -
cognizance of the offence - Trial court
framed charge - prosecution examined
nine witnesses - Contention - Based on
circumstantial evidence - no eye witness -
prosecution neither produced doctor nor
examined constabl e - St.ment under
section 313 Cr.P.C. that he has been falsely
implicated due to some land dispute
between the informant and accused -
appellant raised plea of juvenility - JJB
declared juvenile on the date of offence -
finding - not been set aside by order of any
superior court - hence, declared juvenile -
as per medical age determination report,
accused is 50 years of age - not required to
sent to Special Home - Conviction upheld
and affirmed.(Para - 3, 16, 38, 41, 42, 47,
48, 49)

Held: Although confession of accused for
committing murder of deceased on account of
his ill intention to commit unnatural sex with
the deceased and consequent threatening
hurled by the deceased being made before the
police and police custody cannot be permitted
to be proved by the public witnesses like PW-5
and PW-6 on account of statutory prohibition
under section 25 and 26 of Evidence Act, yet
the recovery of dead body and Angochha used
in strangulation of the deceased based on
disclosure St.ment of the accused before the
police and therefore, protected under section
27 of the Evidence Act, which is exception of
section 25 and 26 of Evidence Act. Prosecution
has successfully proved the links of the chain
of circumstantial evidence, accused was last
seen by three witnesses in the company of the
deceased and the deceased was never found
alive thereafter in the evening preceding to the
recovery of dead body. Appellant raised plea of
juvenility during pendency of appeal . Juvenile
Justice Board declared appellant age around 14
years on the date of offence. (Para - 39, 40,
41, 42, 48)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. R. Sreenivasa Vs St. of Kar., 2023 SCC Online
SC 1132

2. Hiralal Mallick Vs The St. of Bihar, (1977) 4 SCC
44

3. Rakesh Kumar & anr. Vs The St. of U.P., 1976
SCC Online All 530

4. Karan alias Fatiya Vs St. of M. P., (2023) 5 SCC
504

5. Mahesh Vs St. of Raj., (2021) 18 SCC 582

6. Narayan Chetanram Chaudhary Vs St. of Mah.,
2023 SCC Online SC 340

7. R. Sreenivasa Vs St. of Karn.

8. Karan @ Fatiya Vs St. of M. P.

9. Jitendra Singh Vs St. of U.P. (2013) 11 SCC 193

10. Mahesh Vs St. of Raja., (2021) 18 SCC 582

11. Satya Deo Vs St. of U.P., (2020) 10 SCC 555

12. Pratap Singh Vs St. of Jharkhand & ors.

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri Vimlendu Tripathi and Sri
Kuldeep Johri, learned counsels for the
appellant and Sri Sushil Kumar Pandey,
learned AGA for the State.

2. This criminal appeal has been filed
against the judgement and order dated
22.12.1983 passed by Additional Sessions
Judge, Rampur in Session Trial No. 83 of
1983 arising out of Case Crime no. 35/1983
under section 302 IPC, P.S. Suar, District
Rampur whereby appellant has been
convicted of charge under section 302 IPC
and sentenced to imprisonment for life.

3. The prosecution case, in brief, is that
on 5.3.1983 after 6:00 pm, the accused
Rahatjan had committed the murder of
Firasat, a young boy of 12 years of age by
strangulating him in his wheat field, situated
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
in village Aglaga, P.S. Suar, District
Rampur. It is also said that on 6.3.1983 on
being arrested, the accused made an extra
judicial confession of his having caused the
death of Firasat by strangulating him with
the help of Angochha and he helped the
police personnel in making available the
dead body of deceased Firasat inside his
wheat field and muffler with the help of
which, Firasat was strangulated by him by
taking out the same from the rahat situated
in hat very field.

Police investigated the case and filed
charge-sheet against the appellant for charge
under section 302 IPC. Learned C.J.M.,
Rampur took cognizance of the offence and
committed the case to the court of session
for trial. On commencement of trial, learned
trial court framed charge under section 302
IPC against the appellant and he was put to
trial for said charge. The prosecution
examined as many as nine witnesses in
support of charge.

4. Akhtar Ali (PW-1), who is the father
of the deceased Firasat and is de-facto
complainant in this case. He has stated that
Firasat Ali, aged 10-11 years, had gone to
pray Asar ki Namaz on 5.3.1983, in the
evening and thereafter he had not returned.
At that time, he was wearing a shirt,
Baniyan, Trouser and woollen sweater. He
made search on the next day at about 9:00
am. Khurshid Ahmad met him and told
about his having seen Firasat alongwith
Rahat Jan going towards the side of cane
centre after the period of Asar ki Namaz.
Thereafter, Chhotey and Noor Ali also met
him and they also told him about their
having seen Firasat and Rahat Jan going
towards the side of Bijlighar on 5.3.1983 at
about 6:00 pm. The accused Rahat Jan had a
field towards Bijlighar. On having these
informations, he went to the house of Rahat
Jan and found Rahat Jan not available at his
house. He was told by Safadar Mian about
Rahat Jan having not returned to the house
since 6:00 pm yesterday. He got the report
Ex. Ka-1, written from Hashim Husain and
went to the police station and lodged the
same. It is also stated that the accused is in
the habit of indulging in sodomy and his
activities were made known to this effect.
He has been cross examined at length. He
has stated that Firasat Ali deceased had not
gone to offer prayer of Asar Ki Namaz in his
presence rather he came to know from his
wife on return from the jungle. On that day,
he had gone to his field, which is at distance
of a furlong from his house. Asar Ki Namaz
is being offered at about 5:00 pm. He has
stated to have participated in Maghrib Ki
Namaz and after offering the prayer there,
he came to his house and was informed
about Firasat having not returned till then.
He enquired from the children with whom
he used to play but he could not get his
whereabouts. It is also stated that, in the
night he had not gone to lodge the report
with a thinking that Firasat might have gone
to the house of his Mamu in village
Khempur and in the morning he went to
village Khempur to enquire and thereafter
returned to his village when Khurshid,
Chhotey and Noor Ali met him and
informed about their having seen Firasat
with the accused after the hours of Asar Ki
Namaz. He has also stated that towards the
east of his house, there is an open piece of
land where there is a Pakar tree. This land is
of Barkat Shah and not of the father of Rahat
Jan accused but in the same sequence he has
shown his ignorance about the same. He has
stated to have also gone along with the
police party to the house of Safdar but he
had not gone inside the house. He has stated
to have remained at a distance and had not
gone with the police personnel to the house
of Safdar. On return from the house of
5 All. Rahatjan Vs. State of U.P.
1285
Safdar, he had not gone to any other place
alongwith the police party. He has denied
the fact of his ever intended to purchase
open land from the father of the accused. He
has also denied the deference suggestion of
his ever abused either the accused or his
other family members and his having
implicated the accused in this case falsely.
He has proved the clothes Ext. -01 to 05,
which, the deceased Firasat was wearing at
the time when he had gone from his house.

5. Khurshid (PW-2) is a minor boy of
12 or 13 years of age but he is capable of
giving
the
reply
and
being
well
understandable one. He has stated that 3 or
4 months back at about 6:00 pm, he had
gone to invite Qazi Sahib and when he was
going, he saw the accused Rahat Jan and
Firasat going towards cane centre. In the
morning, he told this fact to Akhtar Ali,
father of Firasat. He came to know that the
dead body of Firasat had been recovered in
the field. In his cross examination, he has
stated that he and Firasat used to have the
teaching of Quran from Qazi Sahib in the
mosque being near the cane centre. When he
had gone to invite Qazi Sahib, at that time,
Maghrib Ki Namaz was already over. It is
stated that the house of Firasat is at a
distance of 8 or 10 houses from his house.
He has stated that his father had been in the
house in the night at about 9 or 9:30 and by
that time he had already slept. He has been
questioned about the timings of the prayer
being made, to which, he replied in detailed.
It is also stated that the deceased Firasat
used to pray Zohar and Asar ki Namaz in the
mosque of Qazi Sahib. On the next day, the
father of Firasat met him in the morning at
about 8 or 9 am. He has stated that he had
not paid any attention about the clothes,
which the accused Rahat Jan was wearing at
the time when he had seen Firasat and Rahat
Jan going towards cane centre. He has
denied the suggestion of his having not seen
Firasat and Rahat Jan going towards cane
centre. He has further denied the defence
suggestion of his deposing the false facts at
the instance of father of Firasat.

6. Chhotey (PW-3) has stated that
about four months back at about 6 or 6:30
pm, he was chewing cane at cane centre
alongwith Noor Ali. The accused alongwith
Firasat was seen going towards Bijalighar,
where Rahat Jan accused has his field, the
accused Rahat Jan is in the habit of
committing sodomy. On the next day, the
corpse of Firasat was recovered. It is also
stated that at that time, latif was not with
them. He has denied the defence suggestion
of his having not seen Firasat and the
accused going towards Bijalighar side. He
has further denied the suggestion of his
deposing on account of any relationship. He
has definitely stated that he has not in
relation with Akhtar Ali, father of deceased
Firasat.

7. Noor Ali, (PW-4), has also stated the
same facts of his being with Chhotey at cane
centre and chewing cane. He has also stated
the facts of his having seen the accused and
Firasat going towards Bijalighar. There is a
plot of Rahat Jan towards the side of
Bijalighar. On the next day, the dead body
of Firasat was found in the wheat field of the
accused Rahat Jan. He has stated that the
Panchayatnama on the dead body was
prepared in his presence and he is also
witness of all the formalities having been
done
there
in
connection
with
the
Panchayatnama. In his cross examination,
he has stated that the house of the deceased
Firasat is at the distance of 100 or 150 yards
from his house. It is stated that when the
accused and Firasat were seen going, he had
not talked with either of them. He has
detailed the particulars of the clothes, which
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
both the persons Firasat and Rahat Jan were
wearing at that time. It is also stated that on
the road of cane centre, there is no Abadi of
Bijlighar, rather the houses of the persons of
Bijlighar are on one side towards RampurSuar road and the houses of Bijlighar as well
as the building itself is/are not visible from
the field of the accused. He has denied the
suggestion of his having not seen the
deceased Firasat in the company of the
accused a day before his dead-body was
recovered. He has further denied the
suggestion of his having any relationship
with the family of Firasat deceased.

8. Mohd. Raza (PW -5) has stated that
he along with Ahmad Ali and Mohammad
Ali was standing at a place when police
personnel met them and desired to
accompany them. At that time, it was 12 or
12:30 'O' Clock. They were told by the
police
personnel
that
they
had
an
information about the accused Rahat Jan
having concealed himself at the house of
grand-father and they went to arrest him for
which their help was desired. He along with
others proceeded with the police personnel
to the house of Abdul Hasan- the grandfather of the accused. After entering into the
house of Abdul Hasan, the accused tried to
run-away after coming out of the room, but
he was arrested then and there. On
interrogation, the accused Rahat Jan has told
the facts of his having taken Firasat to the
cane centre to enjoy the chewing of cane and
cane being not available there, he took him
to his field, where he wanted to have
sodomy with Firasat, which was not
conceded by Firasat, rather he (Firasat) said
to inform the villagers about the same as
well as to the parents. The accused thereafter
confessed his guilt of having murdered
Firasat and also said that his dead-body was
lying in his wheat field, which, he could
make available by going there as well as the
Angochha, with which he had caused the
death of the Firasat by strangulation. After
his having stated this facts, the accused took
the police-party to the wheat field, where he
made available the dead-body of Firasat,
which was lying in his wheat field. He also
made available the Angochha, with which,
he had strangulated Firasat to death, after
taking out from the Rahat of his well,
situated in the same field. The witness has
proved the Fard Ext. Ka-2, which was
prepared at the house of Abdul Hasan
pertaining to the arrest of the accused and
his having made extra judicial confession to
the offence committed by him. He has
further proved the Fard of the dead-body
being recovered and Angochha as Ext. Ka 3.
He has further proved the Angochha itself as
Ext. -6, which was taken out by the accused
from the well and with which the accused is
stated to have strangulated Firasat to death.
He has also stated that sample of the wheat
crops was also taken by the police personnel
vide Fard Ext. Ka- 4 and the sample of the
same has been proved by him as Ext.-7. The
dead-body of Firasat was sealed and the
Panchayatnama and the other papers were
prepared at the spot, over which the witness
stated to have also signed. He has been
cross-examined at length. He has stated that
at the time, when they were taken by the
police personnel to the house of Abdul
Hasan, there was no other public person
other than them and the police personnel
were three in number. It is stated that at the
place where they were standing , there is a
Pakar tree, which is at the land of graveyard.

9. Mohd. Ali, (PW-6), has stated the
facts of his being with Mohammad Raza
(PW-5) at Pakar tree, when he was also
called by the police personnel to help them
in arresting the accused Rahat Jan, who was
informed to be available and concealing his
5 All. Rahatjan Vs. State of U.P.
1287
presence at the house of his grand-father
Abdul Hasan. This witness has stated that
apart from him, Mohammad Raza and
Ahmad Ali were also with them. He has
described the manner in which the accused
was arrested while coming out from the
room itself intending to escape and his
having made extra-judicial confession about
his having caused the death of Firasat by
strangulation with the hep of Angochha and
his having desired to help them in making
the recovery of dead-body of Firasat and the
Angochha itself. He has stated to have put
his thumb-impression on the Fard Ext. Ka2, having been prepared at the house of
Abdul Hasan and thereafter the accused
Rahat Jan having taken them and the police
personnel to the place where he left the
dead-body of Firasat and kept the Angochha
with which he had strangulated him. It is
also stated that the dead body of Firasat was
made available by the accused Rahat Jan
after taking them at his own wheat-field
lying there and the Angochha itself after
taking out the same from the Rahat of the
well, situated in the very field. He has
acknowledged his thumb-impression on the
Fard Ext. Ka-3 having been prepared at the
spot and the Angochha Ext.-6, with which
the accused is said to have strangulated and
caused the death of Firasat.

10. Raees (PW-7) has stated that 8 or 9
months back at about 7:30 P.M. he and Latif
had seen the accused in the state of feeling
too much worried and going towards his
house.

11. Shri Daya Nand Tiwari (PW-8) is
the Investigating Officer. He has stated that
on 6.3.1983 at about 10:40 A.M., an
information was made at the police-station
about non-availability of Firasat. On the
basis of this report Ext. Ka-1, G.D. entry
was made, copy of which has been proved
as Ext. Ka-6. He at once started the matter
itself and went to the house of Rahat Jan,
where he was not found. He had prepared its
Fard Ext. Ka-7. At about 01 'O' clock. He
had sent information through an informant
about the accused being available at the
house of his grand-father Abdul Hasan. He
at-once proceeded to the house of Abdul
Hasan
and
took
Mohammad
Raza,
Mohammad Ali and Ahmad Ali. While
being at the house of Abdul Hasan, the
accused Rahat Jan tried to run-away, but
was arrested. On interrogation, the accused
Rahat Jan made extra-judicial confession of
having caused the death of Firasat by
strangulation and his having concealed the
dead-body as well as the Angochha, with
which he was strangulated at his wheat field
and accused also desired to make available
both the things to them. He had prepared the
Fard of the house-search and arrest Ext. Ka2 at the house of Abdul Hasan and therefrom
proceeded to the direction to which the
accused had taken them. While being at the
field, the accused made available the deadbody of Firasat and the Angochha after
taking out from the well. He had prepared its
Fard Ext. Ka-3. From the spot itself, a
constable was sent to the police-station
along with a letter, copy of which has been
proved as Ext. Ka-9. That constable came at
the spot at 3:45 P.M. along with two other
constable as well as the papers pertaining to
Panchayatnama. He had prepared the
Panchayatnama Ext. Ka-10 and proved the
photo Lash Ext. Ka-11, chalan Lash Ext.
Ka-12, memo to C.M.O. in two sheets Ext.
ka-15 and Ex. Ka-16. He had sealed the dead
body of Firasat and prepared the specimen
of seal Ext. Ka-17. The dead-body was sent
to the District Hospital, Rampur for ensuring
post-mortem with constables Dharam Singh
and Jaipal Singh. Angochha Ext.-6 was
sealed at the spot. He had prepared the siteplan of the place of recovery of dead-body
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
as Ext. Ka-18. He had taken the sample of
wheat crop and proved the same as Ext.-7
vide its Fard Ext. Ka-4. The accused along
with these papers and the sealed articles
were brought up to the police-station, where
entries were made in the G.D. at about 7:00
P.M. on 6.3.1983, copy of which has been
proved as Ext. Ka-19. He has further proved the
site plan Ext. Ka-20 pertaining to the place of
arrest of the accused and after his having the
post-mortem report Ext. Ka-5 and completing
the investigation having submitted the chargesheet Ext. Ka-21 against the accused in court. In
his cross-examination, he has stated that from the
police-station, they had proceeded to the house
of Rahat Jan on cycles and Akhtar Ali, the father
of deceased Firasat, had not gone with them to
the house of Rahat Jan. Safdar met them at the
house of Rahat Jan and there the accused was not
found. He has stated to have taken Mohammad
Ali, Ahmad Ali and Mohammad Raza from the
place where there is a Pakar tree and none of
them was known to him from before that day.
The house of Abdul Hasan was pointed to him
by the witnesses, who had accompanied them.
He had denied the suggestion of the accused
having not been arrested in the manner, as is told
by him as well as the accused having not made
the extra judicial confession after his arrest. He
has denied the defence suggestion of the dead
body having not been recovered at the field of
the accused. He had also denied the suggestion
of Angochha having not been recovered at the
instance of the accused.

12. Dharam Singh, (PW-9), is a formal
witness of the fact that on 6.3.1983 he had taken
the dead body of Firasat along with the papers to
the District Hospital, Rampur and no one was
allowed to see the dead body till it remained with
him.

13.

Learned
trial
court
after
appreciation of evidence on record in the
light of contentions of learned counsel for
the parties observed that the case is based on
circumstantial evidence as there is no eye
witness in the case. In support of charge
against the accused, prosecution has relied
upon following circumstances:-

(i) the fact that accused was last seen in the
company of deceased Firasat in the evening
preceding the discovery of his dead body.
(ii) the fact that the accused had absconded
and was seen in the perplexed state of
affairs. (iii) the extra judicial confession
made by the accused on being arrested about
his having caused the death of Firasat by
strangulating him with the help of Angochha
(towel). (iv) the recovery of dead body of
Firasat having been made at the instance of
the accused by taking the police personnel
and witnesses to the place where he had
concealed it i.e. in his wheat field. (v) the
recovery of Angochha, Ext.-6, from the
rahat from the well being situated in the
same wheat field after taking it out by the
accused himself therefrom.

14. Learned trial court after appreciating
these circumstantial evidence in the light of
evidence adduced by the prosecution
concluded that the circumstances mentioned
herein above rather proved by prosecution
on strength of evidence adduced during trial,
through oral evidence as well as some
documentary evidence. Court found that the
evidence being that of oral, post mortem
notes and the medical is clinching to the
issue of guilt thereby establishing the
involvement
of
the
accused
in
the
commission of the murder of Firasat with
the help of Angochha by way of
strangulation and after his having made the
extra judicial confession of his guilt
ensuring the recovery of his dead body as
well as Angochha, Ext-6, itself after taking
the same out from the rahat of the well
situated in the very wheat field from where
5 All. Rahatjan Vs. State of U.P.
1289
the dead body of Firasat was taken out by
the accused himself. Thus the cumulative
effect of the circumstantial evidence on
record is that the prosecution has succeeded
to prove the guilt of the accused to the crime
and to the offence with which he has been
charged beyond all reasonable shadow of
doubts and to its hilt. The accused thus is
found to be guilty to the offence under
section 302 IPC with which he has been
charged.

15. Learned trial court, accordingly,
passed verdict of guilt against the appellant
for charge under section 302 IPC and
sentenced him as above. Feeling aggrieved
by the impugned judgement and order,
present appeal has been filed by the
appellant before this Court.

16. Learned counsel for the appellant
submitted as follows:

(i)
the
case
is
based
on
circumstantial evidence as this is admitted
case that there is no eye witness account of
the commission of offence of murder of
deceased Firasat.

(ii)
the
prosecution
neither
produced doctor, who conducted post
mortem examination of the dead body of
deceased nor examined constable, who
entered missing report of Firasat in General
Diary and registered Case Crime No. 35 of
1983.

(iii) the prosecution did not
produce any formal witness to prove G.D.
entry, registration of case etc.

(iv) the evidence against the
appellant is only to the effect of last seen and
recovery of dead body of the deceased and
recovery of Gamachha from the agricultural
field of his father.

(v) according to prosecution
version, accused was arrested at 13:30 hours
on 6.3.1983 and after that, the dead body
was shown to be recovered at 14:30 hours on
6.3.1983 on pointing out of the accused.
Thereafter, criminal case was registered at
police station Suar, District Rampur as
Crime No. 35/1983 under section 302/201
IPC by making entry in the General Diary at
3:15 pm. However, the inquest proceedings
were started at 11:00 am on 6.3.1983,
wherein, even the Crime No. 35 of 1983 is
also mentioned at the top of the inquest
report,
Ex.
Ka-10.
Moreover,
the
investigating officer also states that he
reached at the place of the incident at 15:45
hours on 6.3.1983. These factual status
demonstrates that the dead body was
recovered much before the time of arrest of
the appellant and after recovery of the dead
body, a story was set up regarding arrest,
recovery and last seen etc. and hence the
entire story of prosecution appears doubtful
and unreliable.

(vi) so far as the evidence of last
seen is concerned, the testimony of
prosecution witnesses Khurshid (PW-2),
Chhotey (PW-3), Noor Ali (PW-4) and the
prosecution witness Raees (PW-7), who had
given stereotyped statements regarding last
seen and their testimony appears to be
unreliable. Infact, if these witnesses had
actually seen the deceased in company of
accused as last seen on 5.3.1983, there is no
reason why they could not locate the dead
body until 6.3.1983 at about 14:30 hours,
where distance of cane centre and electric
house is 30-40 yards where the deceased and
accused were allegedly last seen and
distance between electric house and the
agricultural field of the accused where dead
body was recovered is only 10 to 15
footsteps.

17. There is no close link or live link
between the last seen evidence and the
recovery of the dead body and hence the
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence of last seen is unreliable keeping in
view the timing of inquest, arrest of the
accused and recovery of dead body and the
registration of the criminal case at police
station concerned.

18. Even if the appellant Rahat Jan is
held to be guilty of the alleged crime, he is
entitled to be extended benefit of Section
18(1), 20 and 21 of the Juvenile Justice
(Care and Protection) Act, 2015. He can
only proceeded in terms of Section 18(1) of
the Act and no substantive sentence of
imprisonment is liable to be inflicted on
him. The appellant was held to be juvenile
by the Juvenile Justice Board after
conducting due inquiry in its report dated
15.3.2019 placed on reference made by this
Court vide order dated 22.1.2019 whereby
District Judge, Rampur was directed to get
an inquiry conducted from the appropriate
forum regarding plea of juvenility made by
the appellant/ applicant in present appeal.
The Juvenile Justice Board in its order dated
15.3.2019 held that the appellant was
juvenile in conflict with law on the date of
offence i.e. 5.3.1983 and he was of age 14
years at that time.

19. Learned counsel for the appellant
placed reliance upon the judgement of
Hon'ble Apex Court in R. Sreenivasa vs.
State of Karnataka, 2023 SCC Online SC
1132, Hiralal Mallick vs. The State of
Bihar, (1977) 4 SCC 44, Rakesh Kumar
and another vs. The state of U.P., 1976 SCC
Online All 530, Karan alias Fatiya vs. State
of Madhya Pradesh, (2023) 5 SCC 504,
Mahesh vs. State of Rajasthan, (2021) 18
SCC 582, Narayan Chetanram Chaudhary
vs. State of Maharashtra, 2023 SCC Online
SC 340, in support of his submissions.

20. In R. Sreenivasa vs. State of
Karnataka, Hon'ble Apex Court while
deciding criminal appeal against the
judgement of conviction and sentence in
case under section 302 IPC where High
Court reversed the order of acquittal against
the appellant recorded by the trial court,
allowed the appeal and restored verdict of
acquittal passed by the trial court, observed
as under:-

"17. In the present case, given that
there is no definitive evidence of last seen as
also the fact that there is a long time-gap
between the alleged last seen and the
recovery of the body, and in the absence of
other corroborative pieces of evidence, it
cannot
be
said
that
the
chain
of
circumstances is so complete that the only
inference that could be drawn is the guilt of
the appellant. In Laxman Prasad v State of
Madhya Pradesh, (2023) 6 SCC 399, we
had, upon considering Sharad Birdhichand
Sarda v State of Maharashtra, (1984) 4 SCC
116 and Shailendra Rajdev Pasvan v State of
Gujarat, (2020) 14 SCC 750, held that '... In
a case of circumstantial evidence, the chain
has to be complete in all respects so as to
indicate the guilt of the accused and also
exclude any other theory of the crime.' It
would be unsafe to sustain the conviction of
the appellant on such evidence, where the
chain is clearly incomplete. That apart, the
presumption of innocence is in favour of the
accused and when doubts emanate, the
benefit accrues to the accused, and not the
prosecution. Reference can be made to
Suresh Thipmppa Shetty v State of
Maharashtra, 2023 INSC 7494."

21. Other judgements cited by learned
counsel for the appellant relates to plea of
juvenility raised by the accused at appellate
stage. In Karan alias Fatiya vs. State of
Madhya Pradesh, Hon'ble Supreme Court
while deciding criminal appeal arising out
from the judgement and order of High
5 All. Rahatjan Vs. State of U.P.
1291
Court, Madhya Pradesh, Bench at Indore in
case under section 302, 363, 376(2)(i) and
201 IPC, held as under:-

"According to sub- section (3) of
section 9 of the 2015 Act, the Court which
finds that the person who committed the
offence was a child on the date of
commission of such offence would forward
the child to the JJB for passing appropriate
orders and sentence, if any, passed by the
Court shall be deemed to have no effect.
This does not specifically or even impliedly
provide that the conviction recorded by any
Court with respect to a person who has
subsequently after the disposal of the case
found to be juvenile or a child, would also
lose its effect rather it is only the sentence if
any passed by the Court would be deemed to
have no effect.

Further, the intention of the
legislature was to give benefit to a person
who is declared to be a child on the date of
the offence only with respect to its sentence
part. If the conviction was also to be made
ineffective then either the jurisdiction of
regular Sessions Court would have been
completely excluded not only under section
9 of the 2015 Act but also under section 25
of the 2015 Act, provision would have been
made that on a finding being recorded that
the person being tried is a child, a pending
trial should also be relegated to the JJB and
also that such trial would be held to be null
and void. Instead, under section 25 of the
2015 Act, it is clearly provided that any
proceeding pending before any Board or
Court on the date of commencement of the
2015 Act shall be continued in that Board or
Court as if this Act had not been enacted.

Having considered the statutory
provisions laid down in section 9 of the 2015
Act and also section 7A of the 2000 Act
which is identical to section 9 of the 2015
Act, we are of the view that merits of the
conviction
could
be
tested
and
the
conviction which was recorded cannot be
held to be vitiated in law merely because the
inquiry was not conducted by JJB. It is only
the question of sentence for which the
provisions of the 2015 Act would be
attracted and any sentence in excess of what
is permissible under the 2015 Act will have
to be accordingly amended as per the
provisions of the 2015 Act. Otherwise, the
accused who has committed a heinous
offence and who did not claim juvenility
before the Trial Court would be allowed to
go scot-free. This is also not the object and
intention provided in the 2015 Act. The
object under the 2015 Act dealing with the
rights and liberties of the juvenile is only to
ensure that if he or she could be brought into
the main stream by awarding lesser sentence
and also directing for other facilities for
welfare of the juvenile in conflict with law
during his stay in any of the institutions
defined under the 2015 Act"

22. In that case, appellant was awarded
death sentence for said charge by the
judgement of trial court dated 17.5.2018 and
appeal filed by the appellant was dismissed
by the High Court and death reference
forwarded by trial court was affirmed. The
appellant raised plea of juvenility before the
Supreme Court by filing I.A. No. 43271 of
2019. The Supreme Court directed the trial
court to make endevour to consider whether
the appellant was juvenile as on the date
when the offence in question was committed
after considering all relevant documents as
well as medical check-up of the appellant in
the manner known to the law.

23. Pursuant to the said order, a report
was received from the court of first
Additional Sessions Judge, Madhya Pradesh
dated 27.10.2022, wherein, it was stated that
date of incident being 15.12.2017; the
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant was 15 years 04 months and 20
days of age on the date of incident. Hon'ble
Supreme Court with above observation and
proposition of law as laid down by the Court
in Jitendra Singh vs. State of U.P. (2013) 11
SCC 193; Mahesh vs. State of Rajasthan,
(2021) 18 SCC 582; Satya Deo vs. State of
U.P., (2020) 10 SCC 555, upheld the
conviction of appellant for said charges.
However, the sentence was set aside. It is
further observed that as the appellant at
present would be more than 20 years, there
would be no requirement of sending him to
the JJB or any other child care facility or
institution. The appellant is in judicial
custody. He shall be released forthwith. The
impugned judgement shall stand modified to
the aforesaid extent.

24. Per contra, learned AGA submitted
that the finding of guilt recorded against the
appellant by the trial court is based on
proper and meticulous examination or
evidence adduced during trial and same may
not be disturbed or set aside in the present
appeal as the prosecution has successfully
proved all links of circumstantial evidence
emerged from the evidence on record and
charge against the appellant is duly proved
by the prosecution to the hilt. The link of
chain of circumstances form complete chain
in present case and appellant has been
rightly convicted and sentenced by the trial
court. However, he did not dispute the fact
that the plea of juvenility raised by the
appellant has been accepted by the Juvenile
Justice Board, Rampur in its order dated
15.3.2019.

25. On perusal of records it appears
that chik of FIR has been lodged in the case
and missing report was lodged at police
station Suar, District Rampur on the basis of
written report, Ext.Ka-1 dated 6.3.1983 filed
by informant Akhtar Ali, father of deceased
Firasat aged about 10-11 years vide GD
report no. 16 dated 6.3.1983 and Dariyaft
Head (DH) no. 3/83 was registered. Police
proceeded to inquire missing son of
informant namely Firasat on the basis of this
GD entry; search was conducted in the
house of suspect Rahatjan son of Safdar and
eventually search and arrest was made; Fard
was prepared by investigating officer on
6.3.1983 at 13:30 hour. The suspect
Rahatjan was arrested by the police in the
process of fleeing away from his house on
noticing police team according to recovery
memo of dead body of Firasat and
Angochha dated 6.3.193 at 14:30 hours, Ext.
Ka-2. It appears that dead body of the
deceased Firasat was recovered on pointing
out of appellant after his arrest on same day
i.e. 6.3.1983 at 14:30 hours from the well
situated in wheat field of accused; crops of
wheat were broken in the surrounding of the
well from where dead body and Angochha,
used in strangulating the deceased, were
recovered. The length of Angochha was 3
hath, 1 balist, 4 angul and 1 hath, 1 balist 8
angul; this angochha (towel) was taken into
possession
and
recovery
memo
was
prepared on the site in presence of police
and witnesses of locality namely Mohd.
Raja, Mohd. Ali and Ahmad Ali.

26. This is also stated in this recovery
memo that accused confessed his guilt of
committing murder of Firasat, minor, by
strangulating him and throwing the dead
body in the well; investigating officer also
collected broken plants of wheat from the
place of incident on which Ext.Ka- 4 was
marked. In inquest report, time of report at
police station is shown as 6.3.1983 at 10:40
am and inquest started at 11:00 am on same
day, which was concluded at 5:00 pm; in
inquest report Ext.Ka-10, it is stated that in
opinion of witnesses of inquest, deceased
was done to death by strangulation,
5 All. Rahatjan Vs. State of U.P.
1293
therefore, its post mortem examination is
required. In present case, genuineness of
post mortem report was admitted by learned
counsel for defence during course of trial
and for that reasons, same is admissible in
evidence under section 294 Cr.P.C., which
provides as under:-

1.